Baltimore & Ohio Railroad v. Rudy

Pearce, J., delivered the opinion' of the Court. This is defendant’s appeal from a judgment rendered against it in the Circuit Court for Allegany County in an action brought by the plaintiff to recover damages for injuries received while a passenger on the defendant’s railroad. ⁵² The first question arises upon a demurrer to the declaration, which was overruled. After stating the relations of the parties on the occasion mentioned to be those of passenger and common carrier, from Washington towards Green Spring, W. Va., the declaration made the following averments: “Several of the passengers on said train, congregated together in several seats in front of the plaintiff, were, and for a long time prior, to the injury complained of, had been engaged in drinking, ccurousing, and acting m a disorderly manner, to the disturbance of all persons in said ear except those so engaged in drinking and carousing, to such an extent that the safety of the plaintiff and other passengers in said car was. endangered, and that said drinking and carousing was done with the knowledge and permission of the defendant’s employees in charge of said train; that said persons drinking as aforesaid had consumed many bottles of beer .and whiskey to such an extent that they became drunken, and were for a long time prior to the injury complained of, tlwowing said bottles from the car windows, towards the east-bound track of defendant’s railway, upon which trams were passing or likely to pass, to the knowledge of the defendant company, its servants and agents, so as to be a menace to the safety of the plaintiff and other passengers: * * * and that while drinking and acting as aforesaid, and after said passengers had been so drinking and acting, and throwing said bottles from the car windows for a long time prior to the injury complained of, one of said passengers, so congregated and drinking as aforesaid, threw a beer bottle from the car window towards the east-bound track of the defendant’s railway, on which, to the knowledge of the defendant and its employees trains were passing or likely to pass the said train, which said drinking, carousing and throwing of bottles, the said defendant company, its agents and servants, knew, or by the exercise of ordinary care and caution could have known (but) made no effort to stop or prohibit: and said bottle so thrown as aforesaid, without the negligence of ⁵³ the plaintiff, and while he was using due care and caution on his part, struck a train passing on said east-bound track and rebounded through the window of the seat' in which the plaintiff was, and pieces of said bottle, which was broken when it struck said passing train, hit said plaintiff on the face, and grievously injured the eye of the plaintiff and otherwise bruised and cut bim, which said injuries were then and there caused by the negligence of the said defendant company, its agents and servants, and could have been prevented by said defendant company, its agents and servants by the use of due care in providing proper and sufficient protection for the said plaintiff and other passengers on said train.” The contention of the appellant as to the insufficiency of this declaration, in the exact language of his brief, is (1) “'that it does not allege that the defendant, or its employees, knew, or with the exercise of ordinary care and caution, could have known of the alleged drinking, disorderly conduct and the throwing of bottles from a window of the car, long enough before the injury to have prevented the throwing of the bottles, the broken piece of which is alleged to have entered the window of a car at which the plaintiff sat, and to have entered his eye and caused the injury complained of; and (2) because the declaration contains no allegation that the drinking, disorder and throwing of bottles out of the window as alleged, was of such a character as that the defendant or its employees had reason to anticipóte that such an accident, or any accident from such cause, and consequent injury might occur.” In P., B. & W. R. R. v. Allen, 102 Md. 113 , where the declaration was drawn in question under a demurrer to a plea, this Court speaking through Ohtee Judge MgSherky, said: “It is the breach of the duty which is owed, that constitutes the cause of action. The particular circumstances which evidence that breach are not the breach itself, blit are merely tbe facts which prove that a breach of the duty which was owed had occurred.

In the structure of ⁵⁴ pleadings, even in their strictest foiuns before the introduction of modem simplified systems, it was a most important principle 'of the law of pleading that although any particular fact might be the gist of a party’s case and though the statement of it was indispensible, still in alleging the fact it was unnecessary to state such circumstances as merely tended to prove the truth of the fact alleged. The dry allegation of the fact, without detailing a variety of. minute circumstances which constituted the evidence of it was sufficient. 1 Chitty’s Pl., 8 Amer. Ed., mar. p. 225. And this doctrine obtains today when much of the verbiage .and nearly all of the technical precision once required in pleading has been abandoned.

As only the facts constituting the cause of action need be stated, it is a cardinal rule that they must he averred or set forth with certainty, by which term is signified a clear and distinct statement of them so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the Court who are to give judgment. I Chitty’s Pl., 8 Amer. Ed., mar. p. 233.” How the declaration before us might perhaps have been more concisely drawn, but if it complies with the requisites above stated, it cannot be condemned because of the style or .order in which these requisites have been averred. Stripping it then, of the alleged repetition and confusion which the appellant claims “resulted in a paper ruáis indigestaque moles, so confusing and vague as to render it almost impossible for the ordinary mind to grasp,” and making a simple analysis of its language, it will he seen that it states that the defendant was a common carrier of passengers between certain named points on its road; that the plaintiff was a passenger on the day stated between said points; and it was then and there the .duty of the defendant to carry the plaintiff safely to his destination; that the defendant and its employees for a long time prior to the injury complained of, knowingly permitted certain other passengers to indulge in ⁵⁵ drinking and disorderly conduct, and to throw bottles, of beer out of the car windows, thereby endangering the safety of other passengers; that one of the bottles so thrown out of said window struck a passing train, and broke, and a piece of said broken bottle rebounded, entered the window where plaintiff was sitting, in the exercise of due care, and cut and injured his eye, and finally that said injuries were caused by the negligence of the defendant and its employees, in permitting for so long a time said disorderly conduct, and that his injury could have been prevented by the defendant and its employees, by the use of due care in providing proper and sufficient protection for the plaintiff and other passengers on said train.

Taken together, these averments distinctly state a specific duty owed by the carrier to the passenger, viz, to protect him from known and obvious danger from the disorderly conduct of other passengers, and a breach of that duty, after knowledge of such disorderly conduct, by the negligent failure to control and suppress such disorder, whereby the plaintiff was injured. The vice of the appellant’s argument is that in order to state a good cause of action, the declaration should contain not only the specific allegation of the throwing of the particular bottle which caused the injury, but the further allegation that the intention to throw that particular bottle was foreseen, by the defendant’s employees at the time of its commission, or could have been, by the exercise of due care, foreseen by them long enough in advance of the actual throwing of that bottle to have enabled them to pre-vent such throwing of it, and thus to have prevented the injury to the plaintiff. If this argument were sound, then defendants could have stood by during the whole time that it is alleged in the declaration these disorderly passengers were engaged in drinking and throwing bottles out of the window, without interposing, until they could see that the particular bottle about to be thrown was to be thrown in ⁵⁶ such a manner or under such circumstances as were likely to inflict some injury upon some one; of to carry the illustration further, but not beyond its logical limits, if, instead of throwing bottles about, these parties had been handling pistols in a careless and reckless manner, the defendant’s employees would have been under no obligation to interfere until it was apparent some one was about actually to discharge a pistol. It would not be rational to require knowledge or-means of knowledge of the particular act by which injury might be inflicted.

All that can be required is knowledge or means of knowledge of such disorderly or reckless conduct as is likely to result in injury in some.manner to others, if permitted to continue. The fact that the bottle which caused this injury struck a passing train, instead of striking some part of the window frame through which it was thrown, does not at all affect the question. The danger of striking something, and scattering broken glass, was inherent in the reckless throwing of bottles through the window, and the probability of striking the car window was far greater than that of striking ¿ passing train. Judge Mc'Sherry, in discussing the liability of a carrier to a passenger when intervening acts of fellow passengers or strangers-directly cause the injury sustained, said in Tall v. Steam Packet Co., 90 Md. 253 : “The independent misconduct of a third party, furnishes a ground of action against the carrier only when the carrier, or his servants could have prevented the injury, but failed to interfere to avert it; * * * the negligence for which, in such cases, the carrier is responsible, is not the tout of the fellow passenger or stranger, but it is the negligent omission of the carrier’s servants to prevent that tort from being committed.

The failure or omission to prevent the commission of the tort, to be a negligent failure or omission, must be a failure or an omission to do something which could have been done by the servant; and, therefore, there is involved the essential ingredient, that the servant had knowledge, or with proper care could ⁵⁷ have had knowledge that the tort was imminent, and that he had that knowledge, or had the opportunity to acquire it, sufficiently long in advance of its infliction to have prevented it with the force at his command.” In that case, relied on by the appellant here, the affray was a sudden one, and the captain of the steamer interposed vigorously upon the first intimation of danger, but was unable to prevent the blow by one party and the immediate shot in reply, and hence the carrier was declared not liable, as the carrier was in the case of Pittsburg & Fort Wayne R. R. v. Hinds, 53 Pa. St. 512, also relied on by this appellant, where a mob unexpectedly boarded a train at a station, and the evidence showed it was impracticable for the conductor to keep them off, with the train force ordinarily adequate for the preservation of order. In United Railways v. Deane, 93 Md. 626 , the Court said: “It will not do to say, after an assault has been made, that the servants of the carrier did not know or could not have foreseen that the particular individual who was assaulted, would be injured by an assault, if they were apprised, or with proper care, could have known, of circumstances which indicated that some one would (or might) be injured unless the disorderly passenger or stranger were ejected or controlled.” The declaration in the case before us distinctly alleges that the acts of disorder which finally resulted in the injury of the plaintiff were indulged in “for a long time prior to the injury complained of”, and could have been prevented by the use of due care and by providing proper and sufficient protection for the passengers on the train. This averment, we think, is equivalei{J^i!> an averment that the defendant’s servants had the opportunity to know of the imminent danger impending, sufficiently long in advance to have averted it by interposing the authority with which they were vested over their passengers, so without further prolonging the discussion of that question we are of opinion the demurrer to the declaration was properly overruled.

There were two exceptions to the rulings on the evidence. ⁵⁸ The plaintiff, on cross-examination, stated that he had made no complaint to any of the trainmen about the disorder, because he did not think it was his place and it did not occur to him that he would be injured. He was then asked why he thought it was the duty of the trainmen to interfere, and the plaintiff’s objection to this question being sustained, (the first exception was taken to this ruling. Any answer to this question would only have elicited the opinion of the witness, as to the legal obligation resting upon the defendant, and therefore would not have been properly admissible as evidence. The purpose of this question was not to impeach or discredit the witness, to disclose prejudice or bias, or to test his truthfulness or accuracy as to any fact in issue, but merely to elicit his opinion upon a matter of law, and we can discover no error in this ruling.

When Mrs. Hamilton was on the stand she testified, on her direct examination, to seeing a number of persons drinking in the combination coach, and on being asked by plaintiff’s counsel whether this was on the down trip in the morning, or the return trip in ithe evening, she answered before there-was opportunity to object, that it was going down, and objection was then made to the allowance of that answer. The plaintiff then stated it would be shown that these conditions practically continued all the time on the down trip for such a length of time that they were or must have been known to the trainmen, whereupon ifche objection was overruled, and the second exception was taken. It must be remembered' that it appears from the evidence the parties who were drinking and throwing out bottles on the down trip, were the same who were<ij^ngaged on the return trip, and their conduct in the morning before any actual injury resulted therefrom, threw light on what occurred from their continued conduct on the return trip, and bore materially upon the inquiry whether danger ought not to have been known to or anticipated by the defendant’s servants by the repetition of such conduct. ⁵⁹ We think this ruling was correct. At the close of the plaintiff's case, a prayer was offered that there was no legally sufficient evidence of negligence by the defendant which was the direct proximate cause of the injury to the plaintiff and their verdict must be for the defendant.

This was rejected, but was renewed at the close of the whole- case and was again rejected, so that it becomes necessary to examine the testimony in detail. The plaintiff, a resident of Romney, West Virginia, testified that on June 11th, 1911, he was a passenger upon an excursion train from Romney to AVashington, D. C., and return, leaving Romney between six and seven o’clock in the morning, arriving at AVashington about the middle of the day, and leaving there on the return trip about seven o’clock in the evening. He further testified that on the down trip he was in a combination baggage -and passenger car, and the (train was crowded. That there were a number of persons on that car who were drinking, and had a basket or box containing bottles of