Adams v. Baltimore Transit Co.

²⁹⁸ Collins, J., delivered the opinion of the Court. This is an appeal from a judgment entered for the appellees as a result of the sustaining of demurrers filed by the appellees to the second amended declaration of the appellant, Charlie B. Adams. The Baltimore and Ohio Railroad Company, hereinafter called the Railroad, one of the original defendants, made settlement with the appellant and it is no longer a party to' this case. For the purposes of the demurrers we will consider as true all allegations well pleaded.

The first count of the declaration and the particulars alleged the following. The defendant, appellee, the Baltimore Transit Company, hereinafter called Transit Company, on or about January 22, 1948, was a public carrier engaged in Baltimore City in the business of transporting passengers for hire and in operating and maintaining transportation facilities. The Railroad on said date was engaged in Baltimore City in the business of owning or leasing property for revenue and profit and operating a railroad for the transportation for hire of persons and property. The appellee, the Mayor and City Council of Baltimore, hereinafter called the City, on and about said date, was a municipal corporation of the State of Maryland.

The plaintiff, Charlie B. Adams, appellant here, was an employee of the Maryland Drydock Company, hereinafter called the Drydock Company, who was transported by the Transit Company as a paying passenger in going to and from his place of work at the Drydock Company. On or about the date aforesaid and for a long time prior thereto, the Transit Company and the Railroad maintained tracks and operated their transportation facilities in and through the City of Baltimore and more particularly in the vicinity of the public highways, Sun Street and Frankfurst Avenue in Baltimore under franchises granted by the City. Frankfurst Avenue runs east and west and is intersected by Sun Street which runs north and south. The entrance to the property of ²⁹⁹ the Drydock Company was on the north side of Frankfurst Avenue and west of Sun Street.

The Drydock Company on said date and for a long time prior thereto employed numerous persons, including the plaintiff. These persons required transportation to and from the Drydock Company and their homes which were located in various parts of Baltimore and its environs. On or about the same date and for a long time prior thereto the Railroad maintained tracks and operated trains over and across Sun Street, a public highway, and also over land on each side of Sun Street, which was adjacent and parallel to and on the south side of said Frankfurst Avenue. Said tracks ran east and west and parallel to Frankfurst Avenue.

The Railroad owned a narrow strip of land, about one hundred feet in width, adjacent and parallel to and on the south side of the tracks of the Railroad. A number of years prior to the date aforesaid the Railroad and the Transit Company entered into an agreement for their mutual benefit and profit under which the Transit Company erected and maintained on said narrow strip of land of the Railroad transporattion facilities among which were tracks over which it operated its cars and a waiting station, about fifty feet from Sun Street, near the said Railroad tracks. The said narrow strip of land of the Railroad on which said tracks, waiting station and other facilities were located was subject to the joint control of the Transit Company and the Railroad. In entering into said agreement it was the intention of both the Railroad and the Transit Company for the Transit Company to provide transportation for the numerous employees of the Drydock Company in going to and from their homes and place of work.

Both the Railroad and the Transit Company knew or intended that such employees, on the date aforesaid and for a long time prior thereto, habitually and customarily would have to cross over the said tracks of the Railroad on Sun Street in going to and from the said waiting station and the said premises of the Drydock Company. On the date aforesaid and for at least twenty- ³⁰⁰ five years prior thereto the general public also habitually used Sun Street as a public way, route and street over and across the said tracks of the Railroad. On or about the date aforesaid and for a long time prior thereto the Railroad frequently left long trains blocking and obstructing Sun Street and for long distances on éither side thereof, “to wit, for one-half mile or more on either side thereof, for long periods of time, to wit, for many hours at a time”. The said trains obstructed the passage of pedestrians so that in order for said employees of the Drydock Company to go to and from their said place of employment and the said waiting station it was necessary for them to pa;ss and climb between the cars of such standing trains and, on or about said date and for a long time prior thereto, said employees customarily' and habitually would pass and climb between the cárs of such standing trains for said purposes.

All of the defendants knew or should have known of the aforesaid' dangerous condition created by the blocking and' obstructing of Sun Street and of the said custom and necessity of said employees of passing and climbing between' the cars of the standing trains of the blocking 'Railroad and that such crossing was an unsafe place and dangerous to the said employees and other itiémbers of the public using it. The Railroad and the Transit Company, by entering into said agreement with the knowledge and intention aforesaid, and the Transit Company, by the erection, maintenance and use thereunder of the said waiting station and other transportation facilities on the said property of the Railroad, under the conditions herein described, created a cul-de-sac in that, by letting off said employees of the Drydock Company at the said waiting station, the Transit Company let them off at a place from which the only reasonable way of ingress and egress for said employees of the Drydock Company, including the plaintiff, desiring to' go betwéen the said waiting station and the Drydock Company, was to climb through the cars of the Railroad which weré blocking and obstructing Sun ³⁰¹ Street as aforesaid. The said cul-de-sac thus created on or about the date aforesaid and for a long time prior thereto was a dangerous place into which the said employees including the plaintiff were let off by the Transit Company. There was nothing to prevent the plaintiff from going south on Sun Street.

However, he could not reach his place of employment by so doing. All the defendants including the plaintiff and other employees of the Drydock Company had to cross the tracks of the Railroad and Sun Street to reach their place of employment although they knew or should have known that the said tracks were wrongfully blocked and obstructed as aforesaid. The Railroad Company and the Transit Company by said agreement between them and the Transit Company by erecting and operating its cars and waiting station thereunder and the City by permitting Sun Street to be illegally and wrongfully blocked as aforesaid invited employees of the Drydock Company including the plaintiff, on or about the date aforesaid and for a long time prior thereto, to cross over the Railroad tracks at the place aforesaid and to go between the standing train of the Railroad which blocked said Sun Street. Said employees including the plaintiff, in response to the invitation and knowledge of all the defendants, customarily and habitually did climb between the cars of the standing trains to go from the waiting station to the Drydock Company.

On or about the said date, the plaintiff, as a paying passenger, rode to work on a street car of the Transit Company and was let off by it at said waiting station into said cul-de-sac at about 7:30 A.M., which was the time when many employees of the Dry-dock Company, to the knowledge of all the defendants, customarily and habitually crossed the said tracks of the Railroad at the place aforesaid in going to their place of employment. At that time trains of the Railroad were illegally and wrongfully blocking and obstructing Sun Street and for one-half mile or more on either side thereof for a period of several hours where the employees crossed. There was no indication when ³⁰² said trains would be moved. The plaintiff believed because of past practice of the Railroad that said train would block said crossing for a long period of time.

In order to get to his place of employment in response to said invitation of all the defendants, the plaintiff had to walk approximately seventy-five feet and go between the cars of the standing train and there was- no other reasonable way for the plaintiff to go to his said place of employment from the said waiting station. While so going between said cars, in the exercise of due care and without any negligence o.n his part contributing thereto, and without any protection or warning being given him by any of the defendants, the plaintiff was caused to be suddenly and violently struck, thrown to the ground and dragged by a train of cars of the Railroad and to be seriously and permanently injured when the locomotive owned and operated by the Railroad in a careless, reckless and negligent manner violently and suddenly struck and put into motion the cars between which the plaintiff was passing. As a result of the negligence and want of due care of the defendant the plaintiff suffered serious and permanent injuries. The Transit Company had no other waiting station within one-half mile of the one where the appellant alighted.

The declaration further alleged that the Transit Company as a public carrier owed plaintiff and other employees of the Drydock Company as paying passengers in going to and from his or their place of work the duty of exercising the highest degree of care for their safety. It was the duty of the Transit Company to. provide a safe place for the plaintiff and said employees to alight at said waiting station and a safe way of ingress to and egress from said waiting station across the said tracks of the Railroad at Sun Street. In breach of this duty the Transit Company regularly let off the plaintiff at said waiting station into the said cul-de-sac, and failed to. provide a safe way across the tracks of the Railroad where it knew or should have known that the plaintiff would be in danger unless, as was its duty, it provided ³⁰³ proper and adequate warning and made adequate arrangements with the Railroad for his safety. The Transit Company negligently operated, managed and maintained its transportation facilities so as to endanger the plaintiff.

It negligently failed to provide adequate warning or to make adequate arrangements with the Railroad for the protection of the plaintiff. By Section 4 of Article 39 of the Baltimore City Code of 1927, (now Section 3 of Article 29 of the Baltimore City Code of 1950), the Railroad was prohibited from obstructing said Sun Street. The Railroad owed the plaintiff the duty of giving him adequate and timely warning of any movement of its standing cars. The Railroad blocked said Sun Street and negligently failed to provide watchmen or to give plaintiff any notice of the movement of said train.

It was the duty of the City to keep and maintain the public highways and crossings of Baltimore City in such a manner that the same would be safe for the public. In violation of this duty the City negligently and carelessly permitted the Transit Company and the Railroad to create said dangerous condition in the vicinity of Sun Street and Frankfurst Avenue on the date aforesaid and for several years prior thereto. By Section 6, Subsection 29 (d) of the Baltimore City Charter, the City is required to regulate and keep open for the traveling public said streets, including Sun Street. Sub-section 25 of Section 6 of the Baltimore City Charter requires the City to regulate the use of the streets by street railways and railroads.

Sections 159 and 165 of the Charter requires the City to exercise and control all matters connected with the franchises granted by it to the Railroad and the Transit Company. The City negligently failed to keep Sun Street, on the date alleged and for a long time prior thereto, unobstructed by trains and negligently failed to require the Transit Company and the Railroad to provide a safé way of ingress and egress for the plaintiff across the tracks of the Railroad. The City negligently acquiesced in and permitted said ³⁰⁴ condition to exist on the date alleged and for many years prior thereto. When they knew or should have known and by exercise of due care could have prevented the plaintiff from sustaining the injuries alleged, the City, Transit Company and Railroad negligently created said dangerous condition.

The City by its franchises and permissions did allow the Transit Company ánd the Railroad to create and maintain this dangerous condition. The allegations of the second count of the declaration are substantially the same as the first count except that the asserted liability of the defendants is predicated upon the theory of nuisance. Under this count all the defendants are alleged to have jointly created, permitted and maintained the nuisance, that is, the illegal and wrongful blocking of Sun Street by the standing trains of the Railroad. The City in answering interrogatories took the position that Sun Street terminated one hundred and forty feet south of the Railroad.

The allegations of the third count are substantially the same as the first count except, on account of the position taken by the City and to enable the pleadings to support whatever evidence might be presented at the trial, the scene of the mishap is- stated as being on a private way or path habitually and customarily used by employees of the Drydock Company in going between the waiting station of the Transit Company, across the tracks of the Railroad and to the Dry-dock Company. The third count alleges also that there was “no public highway crossing said tracks of the Railroad within one-half mile of the said waiting station”. We will first consider the demurrer filed by the Transit Company. The primary question is whether it was the duty of the Transit Company, under the allegation in the declaration, to provide a safe way for Adams, appellant, to cross the tracks of the Railroad between the Transit Company’s waiting station and the premises of the Drydock Company.

The appellant contends that by locating its waiting station as it did, for the purpose ³⁰⁵ of increasing its business in transporting large numbers of employees of the Drydock Company, the Transit Company knew or intended that the employees must cross the Railroad tracks and impliedly invited them to do so and therefore it was the duty of the Transit Company to provide these employees with a safe way across the Railroad tracks. Of course, the allegation of implied invitation is a conclusion of the appellant based on the concrete facts alleged. He relies on Sheridan v. Baltimore & Ohio R. R. Co., 101 Md. 50 . It was said in that case that the Railroad in permitting the crossing of its stalled cars impliedly invited the appellant to cross between the cars.

That case might be authority for the liability of the Railroad here but not of the Transit Company. The appellant also relies on the fact that he was discharged on the private property of the Railroad. This property, however, was rented to the Transit Company and he was let off the car, according to the allegations before us, within fifty feet of a street. When he reached that point in safety, the obligation of the Transit Company ceased.

He therefore was not discharged in a cul-de-sac. In the case of Topp v. United Railways Co., 99 Md. 630 , cited by appellant, it was held that a suburban electric railway company was liable for discharging