Ferguson v. Baltimore & Annapolis Railroad

Grason, J., delivered the opinion of the Court. This case was instituted on March 29, 1949, in the Superior Court of Baltimore City, by Denton J. Ferguson (appellant) against The Baltimore and Annapolis Railroad Company, a body corporate, (appellee). It is grounded on negligence and arises out of an accident in an attempt by the plaintiff to board the defendant’s train. The defendant filed general issue pleas, the case was tried before a jury which rendered a verdict for the defendant, and upon judgment entered thereon the plaintiff has appealed.

The facts are as follows: The plaintiff lives at Wood-lawn Heights, in Anne Arundel County, and had for several years before the occasion of the accident. Wood-lawn Heights is a short distance from Woodlawn Station on the defendant’s railroad. Plaintiff worked in Baltimore City and commuted to and from his work via the defendant’s railroad. On the afternoon of April 1, 1946, the plaintiff went to the station for the purpose of taking a train to Baltimore City.

He was the only ⁴⁹⁰ person there, and there was no one there at the station when the accident happened, except those in charge of the train. The train consisted of three cars. The first, or front car, was a combined motor and baggage car, the two other cars were passenger cars. Ferguson testified twice with respect to the accident, once before the jury, and once at a pretrial examination, which was offered in evidence and read to the jury.

At the trial he testified: “I was working four to twelve all of that week and so I went up there about five or ten minutes of three in order to get the train. I usually go up there a little earlier for sometimes the train might be a little earlier or a little later. So I went up there and, as I was standing there, the train came in and the motorman on the train waved his hand to me as he went by. I waved back to him and the train just came right on into the station and slowed down.

It slowed down pretty slow like, but it didn’t seem to me to be to a stop. I didn’t want to miss the train for on the Saturday before I had missed it and I had been late for my work and I didn’t want to be late again. I didn’t want to be late often for the Company did not like it very well. So I thought that I had better jump on it and that is what I did.” And then again: “Well, I just started to get on it and he kept on going.

I had started to walk down the platform. When the train passed I had just started to walk down the platform and I reached up my hand to grab hold of the handrails on each side of the steps as you go up — and I just put my right foot up on it, on the step when my foot slipped forward. Then when I started to get my left foot up, instead of getting on top of the step it went underneath the step and kept on sliding right on down. * * * I stepped on the step and I grabbed the handrails and then it seemed to me that my foot slipped — my right foot slipped when I put it on the steps. It slipped forward. *• * * And that throwed me out of balance and so when I tried to put my left foot up on the step, instead of getting it on top of the step it just went underneath.

It started to go underneath.” ⁴⁹¹ He did not see the conductor, and he was attempting to get on the train by way of the rear steps of the second car. The train was going north, to Baltimore, and the platform and station are on the right side of the track. He does not know the length of the platform, but a train consisting of three cars can stop beside it. “A person could board any one of three different cars in there. On that platform.” He said he grabbed the rails on each side of the steps of the car and “when my foot slipped then I pushed myself away from it after I had lost my footing on the footboard.

I shoved myself away from it. Of course, I rolled on the ground for when I got my foot away it was mashed off.” He does not know when the train stopped, but it did stop, and he got up and hopped over to the station, a distance of “Well, about five or six feet I would say. Something like that. It was not very long.

Very far.”, and he leaned against it. He then went over and entered the train through the rear door of the second car. He was helped up the steps from the platform to the car by the conductor. He does not know how far up the station platform the rear of the second car was when he boarded it.

On his pretrial examination he gave this account of the accident: The train pulled in and he and the operator spoke to each other and “he (the operator) pulled right on down and he didn’t seem to want to stop and the train was passing on and he just slowed it down. Then I seen it wasn’t stopping, but it did cut down right slow and I thought I would step on and go ahead because he didn’t seem to be stopping at all and then I don’t know what happened but my foot slipped on that footboard. * * * and when my foot slipped, then I tried to get my other foot up and instead of getting it in, I just got my toe underneath and under I went. That’s when I tried to catch myself when my foot slipped.” He was trying to get on the second car. He did not see the conductor.

He could not definitely say how fast the train was moving at the time, “but it wasn’t over five, (miles per hour) I could say that”; and he said at that ⁴⁹² time the train “seemed to be drifting” and that “usually the second car” stopped in front of the station. “Q. The front of the second car or the back of the second car? A. The back.” He testified that he walked from the station toward the track as the train was pulling in, and he walked along with the train and then grabbed the handrail beside the steps. “Q. Did you grab the handle with your right hand? A. Yes. Q. With your right hand, and you stepped up with your right or left foot?

A. With my right foot. Q. You stepped up with your right foot as you grabbed the handle. Did you grab the other handle with your left hand, too? A. I stepped up with my right foot and my right hand and I was reaching with my left hand at the same time, approximately both hands at the same time.” At that time his right foot slipped forward and threw him off balance and his left foot was under the step and he was hanging on by his hands. “Q. Then what did you do?

A. I tried to get away from it