Pillard v. Chesapeake Steamship Co.

Stockbridge, J., delivered the opinion of the Court. In this action recovery is sought to he had for injuries suffered by the plaintiff while going on board of a steamer of the defendant company. Between 4 and 4:30 P. M. on the 24th day of August, 1912, the plaintiff with his wife went on board the steamer Atlanta, belonging to the defendant company, and purchased tickets for passage to Gloucester Point. *473 He then returned to the wharf for the purpose of checking his trunk. This accomplished he started to rejoin his wife on the steamer, the access to which, was over a gangway about three feet in width, extending from the wharf to the vessel. Across this gangway were nailed at intervals of fourteen inches, cleats or slipping strips to prevent those passing on it from slipping, and on the sides were rails to guard persons, going and coming, from falling off. Where the gangway ended on the vessel it was elevated some seven inches above the level of the deck, and there was attached at this end an extension or apron by means of strap hinges counter sunk in the planks. According to the plaintiff’s own evidence. these hinges had become smooth and slippery, and that stepping on one of these hinges he slipped and was thrown violently against a stanchion or hit and severely injured. He was assisted to his feet by some one, whom he calls the watchman and helped into the cabin where his wife was. The record contains but two hills of exception, one relating to evidence, the other to the action of the Court on the prayers. When the plaintiff reached his wife, she hastened to bathe his face with cold water, and while so engaged she said io some one, whom she speaks of as the watchman, “How did this happen anyhow?” An objection to this question was sustained, and this action of the Court forms the first bill of exceptions. There had been no testimony given tending to show that the person to whom the inquiry was addressed had seen the accident, and the question as framed might have called equally well for an expression of opinion by the witness or a statement of facts, assuming that he knew them. If the purpose of the question was to elicit the opinion of the witness, it was clearly inadmissible, Tall v. Steam Packet Co., 90 Md. 257, and if it was intended to bring out a statement of facts tending to show negligence, it was objectionable as hearsay. It is claimed on behalf of the appellant to constitute a part of the res gestae and admissible as such. But it is *474 to be observed that .while near enough in point of time to be so regarded, there is nothing to show that it was a voluntary statement, made under the influence of excitement induced by the accident, or that the person to whom Mrs. Pilhird’s question was addressed had or was in a position to have had ■knowledge of his own upon the matter, and no error was committed by the Court .in its ruling. The remaining exception reserved to the action of the' Court on the prayers, raises the important question in the case. The plaintiff’s second and third prayers were refused and rightly so. Tersely stated, they both embodied this proposition, shown an accident, negligence is presumed. Such is not the law of this State, except in cases where the surrounding1 circumstances are such as to admit of the application of the doctrine of res ipsa loquitur, and the facts as testified to in this case will not bring the case within the operation of that'rule. In the case of Benedick v. Potts, 88 Md. 55, McSherry, C. J., said, that the maxim is applicable to two classes of cases only; “first, when the relation of carrier and passenger exists, and the accident arises from some abnormal condition in the department of actual transportation; second, where the injury arises from some condition or event that is, in its very nature, so obviously destructive of the safety of person or property and is so tortious in its quality as, in the first instance at least, to permit no inference save that of negligence on the part of the person in control of the injurious agency.” The rule so laid down has been frequently approved siince. Arnold v. Green, 95 Md. 217; W. M. R. R. Co. v. Shirk, 95 Md. 637; So. Balto. Car Co. v. Schaefer, 96 Md. 88; Stewart v. Harman, 108 Md. 446; B. & O. R. R. v. Black, 107 Md. 661; Smith v. Smick, 119 Md. 279. The plaintiff in this case charged negligence in his declaration, and it was incumbent upon him to prove it, or as was said in B. & O. R. R. v. Savington, 71 Md. 599, citing Parrott v. Wells Fargo & Co., 15 Wall. 537: “ETo one is responsible for injuries resulting from unavoidable accident whilst *475 engaged in a lawful business. A party charging negligence as a ground of action musí prove it. He must show that the defendant by his act or by his omission has violated some duty incumbent upon him, which caused the injury complained of.” The appellant further complains of the granting of the defendant's fifth prayer, which was as to the burden of proof, and was a prayer which has frequently received the approval of this Court. The granting of the defendant’s seventh prayer, on the subject of contributory negligence, is also objected to. Without unduly protracting this opinion, it is sufficient to say, that there were some circumstances testified to which, if believed by the jury, would have warranted the deduction of such negligence on the part of the plaintiff. - In addition to ruling upon the prayers, the Court gave an instruction of its own, which comprehended both the burden of proof and the question of negligence. It was not in conflict with any of the prayers which had been granted; the only criticism to which it was justly open was that it was a repetition of matters with regard to which instructions had already been granted, and for that reason was unnecessary. Put it stated in short, simple language the miles of law appropriate to the case as made out, and no injury could have resulted to the plaintiff from the giving of it. As no1 error is found in the rulings of the trial Court, the judgment will he affirmed. Judgment affirmed, wilh costs.