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