Baltimore & Ohio Railroad v. Strube

Worthington, J., delivered the opinion of the Court. The gravamen of the action in this case is the alleged use of excessive force and violence upon the appellee- by William J. McCarron, a special officer of the appellant, in connection with the appellee’s arrest for trespassing upon the appellant’s property and right of way. The judgment below was for $1,000 damages in favor of the plaintiff, and the defendant has appealed. The substantial facts of the ease as testified to by the witnesses for the plaintiff are as follows: On March 1, 1908, ¹²³ plaintiff -with four companions was returning along the tracks of the Baltimore and Ohio Railroad Company from a visit to a gypsy camp in Baltimore County.

When plaintiff and his campanions had crossed the Viaduct bridge which separates Baltimore County from Baltimore City, Mr. Mc-Oarron walked up behind the plaintiff, grabbed him back of the neck and said “you are under arrest, didn’t I tell you to stay off this railroad'?” To which the plaintiff replied: “Yes, I suppose you did, but that has been six months or so ago, and it kind of left my memory.” Plaintiff then desired to be taken to the Southwestern Police Station in Baltimore City, but McCarron said he should go to Mt. Winans Police Station in Baltimore County. McCarron then still holding the plaintiff by the collar with one hand, and without plaintiff making any resistance, struck plaintiff several blows about the face with the other; then dragged him across the track, knocked him down and beat him while he was down. That as a result of the assault, plaintiff was rendered unconscious, two of his front teeth were knocked out, his lips were cut and swollen to twice their normal size, his mouth was bleeding, his right ear was swollen, his hearing imparied, and his neck also was swollen and painful.

After the assault, plaintiff went with McCarron to the Mt. Winans Police Station where the charge was preferred against him of trespassing on the property of the appellant, to which charge he plead guilty and was fined $2.20 which was paid and plaintiff thereupon released. The plaintiff also called McCarron as a witness, who testified that in March, 1908, he was employed by the B. & O. R. R. as special officer, that he was assigned to duty on the Baltimore Division, that his duties were to look after the company’s property and also the care of records and car-seals, to see that all the merchandise cars had their seals on arrival; and' also that he had power to arrest people as trespassers; that on March 1, 1908, he arrested Strube and ¹²⁴ charged him with trespassing on the property of the Baltimore and Ohio Bailroad. On cross-examination McCarron stated that his power to arrest came from his commission as special officer.

The commission was then offered in evidence, bnt does not appear in the record. The testimony of the defendant’s witnesses, in so far as it conflicts with that introduced on behalf of the plaintiff, was substantially as follows: That after Strube and his companions had passed over the Viaduct bridge and had gone abour fifteen feet within the limits of Baltimore City, McCarron came behind' and calling to Strube, asked him if he had not warned him to stay off. the railroad property, and further said: “If you come back here I am going to take you to the station house.” To which Strube replied, “you can lock me up now if you are able.” Whereupon McCarron took hold of Strube by the collar to arrest him, Strube made several passes at the officer, in the effort to hit him, and then the officer, still holding to Strube with his right hand, struck him with his left hand. Stra.be “fell and kept his hands over his face like he was holding on to the cross ties.” That it was not true that Mc-Carron struck the plaintiff more than once, or that the plaintiff became unconscious, or that plaintiff did nothing to resist arrest, or that McCarron cursed the plaintiff, or that he struck the plaintiff while he was down. On cross-examination, by the plaintiff’s attorneys, Mc-Carron testified as follows: “Q. When he said, you can’t take me in now, if you wanted to; that insulted you ? “A. Yes, sir. “Q. You took him then ? “A. Yes, sir. “Q. If he had not said'that, you wouldn’t have taken him in at all? “A. Ho, sir; if he had gone on, no, sir.- “Q. You did it just to spite him? ¹²⁵ “A- Ho, no. “Q. Did you say anything to the other hoys? “A. He told me I might arrest him if I was able, and then I arested him. “Q. You arrested him to show you were able ? “A. It looks that way.” .

We have given the substance of the testimony on both sides, at some length, so that the questions of law presented by the prayers may be clearly understood. During the progress of the trial the following questions were asked of McCarron on cross-examination and allowed to he answered against the defendant’s objection: “Q. How often have you been convicted of assault in Baltimore City'or Baltimore County? “A. I was arrested once when.I was sixteen years old at a dance in Cowen’s Hall, up here, and the man got fighting and I was arrested. “Q. You were arrested and convicted at the Southwestern Police Station for this assault upon Strube, were you not?' “A. Yes, sir.” Separate exceptions were taken to the rulings of the trial Court as to both of these questions, hut as they both involve, in part, the same principle of law, they will be considered together. The ground upon which this evidence is sought to he justified is that it “goes to the credibility of the witness.” More properly speaking it may he said to affect the weight of the witness’ testimony in this case. Indeed the first question seems to have been framed with' a view to eliciting information concerning the witness’ general disposition for fighting.

But in either aspect we think the question was admissible under the circumstances. The issue was whether McCarron had made an unjustifiable assault upon the plaintiff. The plaintiff’s testimony tended to prove that the assault was not justified. McCarron’s tended to prove that it was.

If the answer to the first question had shown that McCarron had been convicted of a ¹²⁶ number of assaults it would have reflected upon the weight of his testimony as the justification for the assault in this ease. The answer however was of such a negative character as to be of little value either for or against the plaintiff and even if error it would have been harmless error. The second question objected to, is admissible for the same reason as the first. The answer affects the weight of McCarron’s testimony as to the character of the assault, and therefore in a sense his credibility as a witness.

The case of Mattingly v. Montgomery, 106 Md. 461 , is directly in point. The cases cited by appellant in support of its contention that such evidence is not admissible are not apposite. Such evidence would not he admissible in chief for. the purpose of proving the fact of the assault, but the questions are proper upon cross-examination of the person charged with committing the assault. The third exception found in -the record relates to the prayers.

The principal points of the defendant’s contention in regard to these are (1) that in making the arrest, McCarron acted as a commissioned officer of the State of Maryland, and not as an employee of the defendant, hut if this first proposition be unsound, then (2) as soon as the arrest was completed, McCarron lost his dual capacity of officer and agent, ceased to be an employee of defendant and became only an officer of the State of Maryland, and that therefore defendant is not liable for the assault. As to the first proposition, the commission spoken of is not in the record, and we are uninformed as to what authority it conferred upon McCarron, but assuming that it was a commission issued by the Governor under section 403 of Article 23 of the Code, we yet cannot yield