Hagerstown & Frederick Railway Co. v. State

Burke, J., delivered the opinion of the Court. This suit was brought by the State for the use of the widow and infant children of Frank N. Cunningham to recover damages for his death which it is alleged was caused by the negligence of the appellant, the defendant below. A judgment was recovered against the defendant in the lower Court. The appeal before us was taken by the defendant from that judgment.

The appellant is a corporation and is a common carrier of passengers for hire. It is an electric railway company and operates its cars upon certain streets in the city of Hagerstown, in Washington County, Maryland, and elsewhere in that county. The deceased was a passenger upon one of the defendant’s cars on the afternoon of April 11th, 1915, and fell from or was thrown from the car at or near the intersection of Wayside avenue and Potomac street in Hagerstown, and sustained injuries which resulted in his death. There is a curve in the tracks of the defendant company at the place above mentioned, and the deceased was thrown by the sway ³²⁰ ing motion of the car as it passed around this curve.

It is not contended that this curve was improperly constructed, or that there was any defect in it or in the car1 upon which the deceased was riding. The declaration contained two' counts which alleged the particular negligence of the defendant upon which the action is based. In the first count it is alleged: “that on account of the crowded condition of said car, the seats and aisles thereof being occupied by other passengers previously admitted to said car, the said Prank N. Cunningham was compelled to stand at or near the rear door of the said car, and that one of the side or entrance doors leading to the rear platform of said car was carelessly and negligently left open by the defendant and that the said car being thus crowded and occupied by passengers as aforesaid and the said door being thus carelessly and negligently left open was carried and propelled upon and -along the tracks and rails of the defendant to a point at or near the intersection of Wayside avenue with North Potomac street, in the City of Hagerstown aforesaid, with such speed and recklessness that many of said passengers in said car were jolted, thrown about and from their seats and many of those who were compelled to stand thrown down, and the said Prank N. Cunningham by reason of the negligence and carelessness of the defendant in the premises was thrown through the side or entrance door leading to the rear platform of said car, the same being carelessly and negligently left open as aforesaid, and from said car and upon the street with such force and violence whereby the said Prank N. Cunningham received injuries from which he shortly afterwards died.” In the second count it is alleged: “That on account of the crowded condition of said car, the seats and aisles thereof being occupied by other passengers previously admitted to said car, the said Prank N. Cunningham was compelled to stand at or near the rear door of the said car, and that one of the side or entrance doors leading to the rear platform of said car was ³²¹ carelessly and negligently left open by the defendant and that the said car being thns crowded and occupied by passengers as aforesaid and the door being thns carelessly and negligently left open was carried and propelled upon and along the tracks and rails of the defendant to a point at or near the intersection of Wayside avenue with North, Potomac street, in the City of Hagerstown aforesaid, with such speed and recklessness that many of said passengers in said car were jolted, thrown about and from their seats and many of those who were compelled to stand thrown down, and the said Frank N. Cunningham by reason of the negligence and carelessness of the defendant in the premises was thrown through the side or entrance door leading to the rear platform of said car, the same being carelessly and negligently left open as aforesaid, and from said ear and upon the street with such force and violence whereby the said Frank N. Cunningham received injuries from which he shortly after-wards died.” It thus appears by the allegations of the narr. that the right of recovery is based upon the excessive and reckless speed of the car as it passed over the curve. That this was the understanding of the plaintiffs’ counsel appears by the twelfth prayer of the defendant, which was conceded and thns became the law of the case, by which the jury were instructed that if they found from the evidence that the car “at the time of the injuries complained of in this case was being operated at a speed consistent with good safe railroading, having due regard for the safety of the passengers upon the rear platform of said car, then the defendant was not guilty of any negligence in the operation of said car and their verdict must be for the defendant.” The Record contains six exceptions to rulings on evidence, and one to the action of the Court on the prayers.

By the defendant’s second prayer, submitted at the close of the whole testimony, the Court was asked to instruct the jury that under the pleadings in the case there was no legally suffi ³²² cient evidence to entitle the plaintiff to recover, and that the verdict should be for the defendant. This prayer was refused, but as we are of opinion that it should have been granted, the other questions raised by the exceptions need not be considered in this opinion. Before discussing this prayer it might be said that the deceased was standing upon the rear platform of the car close to the outer edge of the platform and resting against the rear end of the car. The door on that side leading to the street was open.

He was smoking a cigar when he got on the car, and evidently occupied that position for his own convenience.' Hpon the uncontradicted evidence he was not compelled for the reasons stated in the declaration to occupy that position, and there was no necessity for his doing so. Not one of his witnesses testified that there was no room inside the car, and some of them said there was room inside. The evidence of the plaintiff makes it quite clear that Mr. Cunningham could have found a place of safety inside the car. The uncontradicted testimony of the conductor, Omer Steffey, on this point was as follows: “I saw Mr. Cunningham enter the car at the Country Club road.

He placed himself right in doorway as you enter the car and made no effort to get into the car. He placed himself right there and right there is where he stood. He was standing there when I collected his fare. I asked him to get inside; I asked him also when he stepped up on the platform of the car to go inside of the car.

I told him there was room inside and there was room, too. The last time I was in the car there was not a soul standing in the passenger compartment. The seats were all taken but no one was standing. There were people standing in the smoking and passenger compartments.

There was room for more passengers to stand in the smoking compartment and in the baggage compartment. I went through several times. After Mr. Cunningham got on the car I went through the car before we got to the railroad and got off at the railroad. After I got off the car at Fair Ground avenue, I boarded it again ³²³ and went through the car aud gave the motorman the signal to go ahead.

I asked the people to get off the platform so that I could get in and give my "bell rope, hut they did not go in. I just stepped up on the inside of the car to give my bell rope when the accident happened, because I had a passenger that wanted to get off at Charles street. When I got on the car at Fair Ground avenue Mr. Cunningham was standing right in the doorway. He was not holding to anything, ho was just smoking a cigar the last time I noticed him.- He was standing right there with his back against the door smoking a cigar holding it in his right hand.

He had botli hands in front of him. I asked him to go inside, the last .time I asked him to go inside was at East Hagerstown, I asked him several times up the road further.” The duty which a common carrier owes to its passengers has been declared in numerous decisions in this Court, and we need only refer to the case of The City Passenger Ry. Co. v. Nugent, 86 Md. 349 , wherein it is said: “A