Hagerstown & Frederick Railway Co. v. Wingert

Pattison, J., delivered the opinion of the Court. This is an appeal from a judgment recovered by the appellee, Carrie G. Wingerd, against the appellant, The Hagerstown & Frederick Railway Company, for personal injuries sustained by her in alighting from the defendant’s oar, upon Washington street, in Hagerstown, resulting from the alleged negligence of the appellant corporation: (1) in the use of a car having its foot-hoard of a “dangerous, unusual and extraordinary distance” above the ground or street, (2) in not providing for the plaintiff a step or some other proper object to assist the plaintiff in stepping or alighting from said car or foot-board to the street below, (3) in not warning, the plaintiff of the alleged excessive, dangerous and extraordinary height of the car step< above the street, and (4) in not assisting the plaintiff in alighting from the car. The plaintiff, at the conclusion of the case, offered five prayers. Of these, the first, second, fourth and fifth were granted.

The third was refused. The defendant offered nineteen prayer’s. Its first, second, third, ninth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and eighteenth were rejected. Its fourth, fifth, sixth, seventh, tenth, sixteenth, ⁴⁵⁷ seventeenth and nineteenth prayers were granted, and its eighth prayer granted as modified.

The defendant excepted to the rulings of the Court in granting the plaintiff’s first, third and fifth prayer, and in rejecting its second, third, ninth, eleventh, twelfth, fifteenth and eighteenth prayer. This is the only exception found in the record. The defendant’s first prayer asked the Court to instruct the jury that there was no legally sufficient, evidence entitling the plaintiff to recover. This prayer, we have said, was refused.

A number of times has this Court said that there must be evidence legally sufficient to prove negligence and to connect that negligence with the injury, before a Court is justified in allowing a case to go to the jury. Baltimore & Yorktown Turnpike Road v. Cason, 72 Md. 380 ; Callis v. United Railway & Electric Co., 128 Md. 411 , and other cases. There are cases, however, where the proof of the injury has., under certain circumstances, raised a presumption of negligence on the part of the carrier. B. & O. Railroad Co. v. State, Use of Mahon, 63 Md. 144 , but this case does not come within that class of cases.

The car used on this occasion and the one in which the plaintiff was riding was what is known as an open summer type car, with running boards and steps extending along its entire length. The passengers made their exit by stepping •from the car to the running board and then to the step below and from the step to the ground or street. The accident occurred on the evening of the 26th of June; 1916, between ten and eleven o’clock. The car stopped at a point on West Washington street- in Hagerstown at or near the public square and in front of Hoffman’s, dry-goods store.

This was; in what is known as the Great White Way of Hagerstown. William H. Eeynolds., a policeman of that town testified that on June 26th, 1916, he was in charge of the White Way Light. The lower lights, were turned off at eleven o’clock, the top lights were left on until day-light in the morning. ⁴⁵⁸ One of these 'White Way poles stands right in front of the door of Huffman’s store. That pole like all the others has three lights.

Other witnesses who testified expressed some doubt as to all of the lights being: on at the time of the accident, but Mrs. Wingert, the plaintiff, testified that as she approached the square, she noticed her daughter standing in front of Hoffman’s store, thus showing that the street was sufficiently lighted, not only for her t'o see but to rcognize her daughter standing in front of the store, some distance away. The street at this point, which was paved with vitrified brick, was on a level with the top- of the oar rail. The Court below in granting the defendant’s fifth prayer, held there was no evidence in the case legally sufficient to entitle the jury to find that the defendant was guilty of any negligence in the failure to furnish the plaintiff with any movable step to assist her in alighting, from said car and in the failure of the employees of the defendant to assist said plaintiff in alighting therefrom. This was, a proper ruling upon the evidence offered.

Ordinarily there is no duty on the part of a carrier to assist passengers in boarding or alighting from its train or cars. See cases cited in note to Louisville & Nashville Railroad Co. v. Ellen Dyer, 48 L. R. A. (N. S.) 816. The duty, however, to- assist passengers off and on trains and cars may arise from special circumstances, as when there is some unusual danger or difficulty from the place or means afforded for alighting, or the condition under which the party is required to alight, or otherwise, makes it reasonably apparent at the time that difficulties or dangers attend the act of alighting.

Note to Louisville & Nashville R. R. Co. v. Ellen Dyer, supra. In the case before us, we find no unusual danger or difficulty arising from the condition of the party or the place where the plaintiff was to alight from the car or the means afforded her of alighting or otherwise that were apparent to-the defendant or its agents that made it their duty to assist ⁴⁵⁹ her from the car, or of which she should have been warned or notified. Therefore, the sole remaining act of negligence charged against the defendant is the use of the car with the foot-board or step of the alleged dangerous, distance above the ground. The plaintiff offered several witnesses who testified that they, on different occasions in getting on the train, had heard others complain in the presence of the conductor about the step being so high and that they could hardly get on the car.

One of these was asked by the counsel for the plaintiff, “Hid you make any complaint to any of the operators or any of the officials of the Hagerstown & Frederick Railway Co., in reference to the difficulty in getting on and off that car,” and she replied, “Not seriously jokingly 1 did in way to ridicule the car.” Mr. Long, one of the counsel for the plaintiff, testified that he measured the car, which was car No. 101, at Frederick, on Tuesday immediately preceding the trial of the case, and that, from his measurement it was 22 8/10 inches from the top of the lower foot-hoard to the top of the rail. His measurement was made, as he states, with a “Western Maryland Standard Tape Line.” He also measured car No. 103, which measured 18 inches from the top of the step* to the top of the rail. This it seems was measured at Hagerstown. Upon cross-examination, he stated that 101 was. in the ear barn at Frederick, the last car in the barn, clear back against the rear end of the trade at the time he measured it.

The interior of that bam is not paved. It is on the dirt.” He was then, asked: “Therefore, when you got down from, the car you had to get down on the ground ? A. The ground was not over an inch from the rail; the ground was level with the rail. Q. The distance then from the top. of the step to the ground itself would have been about an inch more then ?

A. I did not measure that. I take it as about an inch. Not much over an inch if it was any.” The plaintiff, at that time a resident of Hagerstown, on the morning of the day of the accident, went to Williamsport ⁴⁶⁰ in one of the cars of the defendant company and returned in the evening of that day in car No. 101. She testified that: “I got on the ear at Williamsport and didn’t notice then any difference between the height of the step' and the height of the step on the loop' car, because I was assisted on.

It did seem a little higher, but I was assisted and couldn’t tell. I don’t think I got on the same kind of a car to- go over to Williamsport as I did when I came back but I can not tell. I don’t know which car I was on. I was not accustomed to riding on the car at Williamsport.

The car that I got on to go to Williamsport was a summer oar, a big summer car, with two steps leading up. to the floor of the car, a step from the ground and then a step' to the running, hoard and then into the floor of the car, just like the one I came back on. I didn’t notice the height of the step' on that car; in leaving Hagerstown my daughter was with me and she assisted me on and I didn’t even notice the height of the step then.” She further testified: “I got off the car at Hagerstown right in front of Hr. Hoffman’s dry-goods store. I stepped off the car and there were two steps; I first stepped on one, then on the second, and I looked down and the distance didn’t seem so great, and as I stepped down, my foot didn’t touch the ground, and' I had to leave go of the hand hold of the oar, and I felt the bones crushing into my knee, and naturally I had to fall.” She was then asked: “Ql The question is how the height of the car that you came from Williamsport on compares with the step* on the cars that you had been accustomed to riding on, higher or lower, or the same?

A. A great deal higher than the one on the Potomac street line, as I never had found any difiiculty in stepping off. I first discovered that there was this difference in stepping off the evening that my limb was broken. When I stepped off at the square, my hand on the rail, I was looking down to see the distance of the step. ’ In stepping from the car, I couldn’t detect the distance of the lower step down to the ground. If I had, I would have used more precaution in stepping down * * *.

I stepped on the first step; then on the second step; ⁴⁶¹ and found in stepping to the ground, the step was so great that I could hardly make it, but I was too far down to help myself * * *. I first discovered that the step Was further down than I imagined as I stepped to the pavement and found that I couldn’t reach the pavement.” The plaintiff’s daughter, Miss Florence Wingert, who was standing in front of Hoffman’s store as the car approached stated that “When the car pulled in at the stopping place, I looked at them (her mother and sister), and saw them get off the car. My sister was behind my mother and she stepped down on the first step and the second and went to-step down to the ground and the ground appeared too far for her to reach the ground and she let go the hand hold and went right down to the ground.” Upon cross-examination, she stated: “I saw my mother put both feet on the top step- and bottom I don’t know what she was doing with the left hand.” stop, step off with the left foot and hold with the right hand. George M. Hett, a surveyor of Rjraddock Heights, produced as a witness by the defendant testified that: “Yesterday I made measurement of car No-. 101 of the Hagerstown & Frederick Railway Co. I measured the distance from the height of the step- on a level with the track and did so by laying a straight edge across on the to-p and measured straight up from the top edge of the step to the top' rail.

I used a steel tape that I used in surveying. The distance, as I measured it on top of the step on Car 101 to the top of the rail, was 19 inches-. This morning I measured Oar 103 that is the car at the old barn in Hagerstown, to ascertain the height of the step to the level of the track. I measured in the same way and found the distance there from the top- of the step- to the top of the rail was 18% inches.” He also measured eight other cars of the defendant company, all of which had running hoards, and the distance from the surface of the lower step to the surface of the rail, measured as follows, to- wit:' Car No. 88—17% in.; No. 79—17 in.; No-. 78—18 in.; No. 84-—20% in.; 86—17 in.; 85—19% in.; 22-—20 in.; 20— 20 in.; 102—18 in. ⁴⁶² J. B. Ferguson, a civil engineer, R. E. Eitzler,