Baltimore & Ohio Railroad v. Kane

Irving, J., delivered the opinion of the Court. This was an action brought by husband and wife for injuries to the wife, alleged to have been sustained by reason of the conduct and negligence of the employes of the appellant. The appellant contends that upon the testimony of the appellees and their witnesses, such case was not made as to justify its submission to a jury. The consideration of this ground of complaint involves an examination into, and analysis of, the facts, as well as the incidental discussion of some questions of admissibility of some of the facts given in evidence. The conceded facts are, that the appellant on the occasion of the injuries received by the appellee, Mrs. Kane, was running, on a Sabbath day, an excursion train on the Curtis creek branch of its road ; and that the plaintiffs, the appellees, were regular passengers on that day, not as excursioners, though they had excursion tickets, but as passengers to a point where they wished to visit a sick friend. The injuries sued for, were received in an effort to board the train in the — 20 — evening, for the purpose of returning to Baltimore City. About the circumstances attending this effort to hoard the train there is some conflict of evidence, but the correctness of the Court's ruling in sending the case to the jury must depend on the testimony of the plaintiffs. There is no substantial disagreement as to the description of the locus in quo, and the premises adjoining. There was a platform, at which a train of cars was standing and filled ready for return to Baltimore, when the plaintiffs left the platform and went to the place where the effort to get on another train was made which resulted in the accident. At the platform was a shed for the shelter of passengers, and where these plaintiffs were, when they allege they were told by a railroad official to go down and take their train, which was at a point some distance away from the platform. Steps descended from the- platform to a plank walk alongside the railroad track, and a few inches higher than it, which plank walk led to the bath house of this resort. Whilst the train which was filled stood at the platform making ready for departure, another train from Baltimore came down and passed by the standing train and the platform, and ran down towards the pier. The engine had to reverse by use of a “Y” to return to-Baltimore. Before this train came, the plaintiffs, who had been unable to get seats on the train standing at the platform, were spoken to by a person wearing the uniform of the company, (which uniform Mrs. Kane said she knew) who said to them that another train “will be along in ten minutes, we have telegraphed for an extra train,” and invited them into the waiting shed. When this promised train came by, the same individual, with the uniform of the company, who had invited them into the waiting shed, came and said to-them, “there is your train, go and get on it.” The crowd was all moving in the direction- of this train, — 21 — and being so instructed by this person, they went, with many others down the stops to the plank walk, and down it to the point where the attempt to board the train was made. ’When the train stopped, plaintiff's husband and child got on. The train again moved toward the pier and stopped ; (as plaintiff and her witnesses say), when she, assisted by a man named Stout, tried to mount the steps. Stout says he had his hand under her elbow. She put her foot on the step and the car gave a jerk, and she was thrown off, and falling under the car she was seriously injured—one arm and the. fingers of the other hand being cut off. The step of the cars she says was about eighteen inches from the plank walk. Mr. Stout says he thinks about two feet. Passengers were crowding in, all along this plank walk; and the plaintiffs and their witnesses say they heard no direction not to board the train there or to desist; and said no effort was made to prevent its being done. Mr. Stout had immediately before assisted two ladies successfully in boarding the train there. After doing so the train moved about the length of a car, and again came to a full stop, when he proceeded to assist Mrs. Kane. Although there was evidence from the defendant that the train never came to a stop, and was in actual motion when the effort to board the train was made, for the purpose of the ruling whether there was any evidence to take the case to the jury, we cannot consider that contradiction of the plaintiffs and their witnesses. There was evidence tending to show, that on all such occasions passengers were in the habit of boarding the train, and were allowed to do so, without objection from any body, all along this plank walk wherever the train might happen to stop. The appellants insist that, having provided a platform where the train regularly stopped, the plaintiffs had no right to get on at any other point, and that the — 22 — attempt to do so was, in law, contributory negligence. Reliance for this contention is placed upon Thompson on Carriers of Passengers, page 129, where it is stated, and authorities for it are cited, that when a safe and convenient means of getting off and on the cars has been provided, if a passenger uses a way of his own choice he will be responsible for consequences. But clearly this means, that when the railroad recognizes that as the only place where passengers will be received or discharged, and has so ordered; for the same authority in the same connection says, that “wherever a railroad company is in the habit of receiving passengers “whether- at the station or some point outside, passengers have a right to assume that such parts of the premises are in safe condition for such purpose.” Of course the platform provided by the company is the most- suitable place ‘for ingress and egress, but it does not follow, that if the company's officers see a person getting on or off a train elsewhere than at the platform, his effort may be wilfully or negligently disregarded to his injury. Here the passengers were allowed to enter from this board walk. There is evidence at any rate that way. The doors were not closed against them; and so far as the plaintiffs' evidence goes there was no inhibition or effort to prevent it/ Witnesses say that passengers entered the cars from this plank walk on all excursion occasions. In McDonald vs. Chicago’and Northwestern Railroad Company, 26 Iowa, 139, Judge Dillon, speaking for the Court, says : “If the train had arrived, and was on the track, the car doors open, and if, as is frequently if not generally the case, passengers are allowed, or at least not forbidden, to enter the cars before they are drawn uji in front of the station, we think a passenger may reasonably and properly make the attempt to reach and enter the cars, if he is not aware of any rule or regula — 23 — lion to the contrary; and if he receives an injury in so doing (he using proper care) from the unsafe and dangerous condition of the platform or the steps in a place where passengers would naturally go, the company is liable therefor.” On pago 142, the same distinguished Judge says: “A railroad company has a right to require all passengers, about to enter their cars, to do so only when the cars are brojight up to the platform for that purpose. We cannot say, that it is a rule of Um: that the mere existence of a platform in front of a depot is necessarily notice to the passenger that the train must he drawn up to that place to receive him, and that the company requires that he shall wait and enter the cars at that place, and is prohibited from entering them elsewhere. Often, however, there is no such requirement, and passengers are allowed, or at least not forbidden, to enter elsewhere.'’ If the railroad company intended to prohibit an entrance elsewhere than at the platform in front of the station, notice to that effect should have been given; and these plaintiffs ought to have been shown to have known of such inhibition, or that they ought to have know'll it, if there were such prohibition, from the publicity of such notification ; or from the condition of the place where they attempted to enter, and all the oircumsianees surrounding them. There is no pretence, of any notice to them that passengers would be received at the platform in front of the station only, and were prohibited from attempting to enter at any other place. It was a good plank walk, elevated some inches above the track where they say the cars had stopped, and hundreds of people were being received into them there; or, at least, not prevented or prohibited from entering, according to the plaintiffs’ evidence. So that apart from the alleged direction of an official to go and enter the car, there would seem to be strong authority for — 24 — permitting this case to go to the jury. But certainly, if these plaintiffs were, as the testify they were, directed by a person wearing the uniform of the railroad company, and whom they justifiably supposed to be such officer, to take the train away from the platform, they were, in such case, justified in supposing they were not obliged to get in at the platform in front of the station; and that it was not against the company's rules to board the train where this attempt was made, and where so many others did enter the cars; and the railroad must be answerable for accidents resulting from the negligence of its officers in such case. The contention is, however, that the person so directing them is not proven to have been an officer of the company, and they were not justified in supposing him to be such officer; but we think that as he wore the company's uniform, and said “we have telegraphed for an extra train,'' and invited them into the waiting apartment, and then, as an officer, directed them, when the train came, that this was their train, and “to go and take it,'' there was sufficientprima facie evidence to them that he was what he seemed to be. At such a moment, it hardly could have been expected or required of them to verify his authority by the testimony of anybody before they acted. It was certainly evidence to go to the jury; and it was entirely competent for the road to show tlie plaintiffs were mistaken, and that no such official was there; or to have shown that those who were there did not actually do or say what the plaintiffs say a seeming official did. It was a question for the jury whether there was such person in the uni-' form of the company who did give the directions testified to. If there was no such official and no such directions from one, the jury could not find for the plaintiffs upon their first prayer. The witnesses may have been mistaken; but Mrs. Kane said she knew the uniform of — 25 — the company and this person wore it. The jury was the proper tribunal to decide whether this was so. We think there was no error in granting the plaintiffs’ prayer, nor in rejecting the defendant’s first and second prayers. In McMahon vs. Northern Central Railway Co., 39 Md., 449, this Court said, “in no case, ought the Court to take the question of negligence from the jury, unless tlie conduct of‘the plaintiff, relied on as amounting in law to contributory negligence, is established by clear and un contradicted testimony; and in the case of Cumberland Valley Railroad Co. vs. Maugans, 61 Md., 61, the Court said and, if possible, more emphatically: “The case must he a very clear one to justify the Court in taking upon itself the responsibility; it must present some decisive act in regard to the effect and character of which no room is left for ordinary minds to differ.” The plaintiffs’ prayer put the case to the jury, on the hypothesis that the effort to hoard the train was not made until the train came to a full stop, and embodied the circumstances as to time, place, &c., when and where the attempt to enter was made as they had testified to them, and was, we think, properly granted. The third, fourth, and fifth and a half prayers of the defendant put the question of the contributory negligence of the plaintiff very fully to the jury, and were granted. The third and fourth instructed the jury, that if the accident was in any degree referable to the negligence or want of care of the plaintiff, they could not find for the plaintiff. Those instructions could hardly have been made more comprehensive except by the phraseology of prayer five and a half, which says that though the jury might find negligence on the part of the railroad company yet if they found, “there was a want of prudence and proper care on the part of Mrs. Kane in attempting to get on the cars at the place, or at the time when she did, and that such want of care and — 26 — prudence on her part, directly contributed to the accident, then the verdict’ of the jury must be for the defendant.” This was certainly as far reaching as the defendant could possibly ask. “At the place” had direct reference to the plank walk where the attempt was made; and “at the time” could only refer to the moment of the attempt as to whether the train was in motion, when the attempt was made. By these prayers everything seems to have been submitted to the jury which could possibly affect the defendant's responsibility for the accident. Yet great stress is laid on the refusal of.the Court to grant the fifth prayer of the defendant. We can see no error in its rejection. It was clearly misleading. It assumes there was evidence that a place had been “designated” as the place for entering the cars, which implies an order, notice, or sign of which there was no evidence. The existence and use of the platform, as one place of entry, ivas all the proof about it. It asked the Court to say, as matter of law, that the platform, which was there, was the only place Avhere a passenger could justifiably attempt to enter the cars, without any evidence of a rule of the company on the subject; and without reference to the knowledge or ignorance of the plaintiffs about it. It also Avholly ignores the eAÚdence tending to shoAv a practice of receiving passengers all along this plank Avalk, on excursion occasions; as Avell as the proof in this case of a person clothed and acting as an officer of the road directing these plaintiffs to enter where they did. It asks the Court to say, as a matter of laAv, that this attempt to enter the car, if the car was in motion was per se contributory negligence, and that the verdict must he for the defendant, without any qualification as to the 'speed or degree of motion, whether fast, or very slow—barely moving. This lady Avas, by the evidence, six months gone in pregnancy; — 27 — but she was proven to be only twenty-eight years old, and was assisted by a man in her effort to get on board. Under such circumstances, if the train was moving very slowly, “ordinary minds might differ” as to the prudence or imprudence of the attempt. It would seem to be a question especially proper for the jury, and was committed to them by prayer five and a half. It should be noted that an officer of the road testified to taking a lady badly afflicted with rheumatism to a point directly opposite to Mrs. Kane to help her into the train, on the side of the cars where there was no plank walk and which was the lowest, and where the step was longer than from the plank walk; and while there the witness saw the accident. If the train was in rapid motion the danger would be obvious, and an effort to get off'or on, in such case, has been decided, and with good reason, to be negligence in law; but as was said in Maugans’ Case (61 Md., 61), there is “no general accord of judicial opinion on this subject;” and “the weight of authority is against the proposition that it is always, as matter of law, negligence and want of ordinary care for a person to get off from a car when it is in motion.” The rule ought to be the same whether the effort be to enter or to alight. The true rule as established by Maugans’ Case, is that all the circumstances must be considered in order to determine whether there is contributory negligence; and that it “is not sound to select one prominent fact” as controlling, to the exclusion of the rest. The physical condition of this lady was to be considered with reference to her age and the fact that she was assisted by a man; the height of the step, and if the car was in motion, the rapidity of the motion were also facts bearing on the question of the propriety of her effort to get on, and were specially proper for a jury to — 28 — weigh. We see nothing so distinguisliingly and unquestionably hazardous as to, require the Court to say, as a matter of law, that the attempt was fatally contributory as this prayer required the Court to say. (Decided 12th April, 1888.) What we have said respecting the prayers discussed, disposes of the remaining prayers of the defendant, which, according to the views we have expressed, were rejected properly. The first, second, third, fourth, fifth, sixth, seventh and eighth exceptions relate to the admissibility of certain evidence tending to show a habit of receiving passengers along the plank walk, and elsewhere than at the platform. Eor the reasons and upon the authorities already cited in discussing other propositions, it is clear there was no error in those rulings. The motion in arrest of judgment was abandoned at the hearing. Judgment affirmed.