Pugh v. Washington Railway & Electric Co.

Boyd, C. J., delivered the opinion of the Court. This is a suit by the appellant against the appellee based on the claim, as alleged in the declaration that, while “she was a passenger on a car operated by the defendant she was insulted by indecent remarks and gestures from other persons on the said car, and her person assaulted by one of the other persons upon the said car.” It is alleged that the “conductor in charge of said car, before and during and while the said assault was in the act of being committed, was requested and urged by the plaintiff and a male acquaintance, who took her under his protection, to cause the said assault to cease and to prevent further insult and injury, but that the said conductor laughed at her terror and made no attempt to protect her from injury and insult, but rather by his conduct encouraged the same,” etc. The case was tried under the general issue plea, and a verdict was rendered for the defendant in accordance with the following' instruction: “The Court instructs the jury that there is no evidence in this case legally sufficient to show that the car mentioned in the evidence was, at the time of the assault complained of, operated or controlled by the defendant, or by its servants, agents or employees, and that therefore their verdict must be for the defendant.” This appeal is from a judgment rendered on the verdict thus directed. The proceedings were unusual, but if the Court was right in its conclusion that there was not legally sufficient evidence to show that the defendant was responsible for what was complained of, it was proper to bring the case to an end and then, instead of occupying the time of the Court with other qnes ¹⁹⁸ tions and afterwards granting such an instruction as this at the conclusion of all the testimony. The important question, therefore, is whether the Court was right in the conclusion reached by it from the evidence offered.

That makes it necessary for us to ascertain from the record the precise relations existing between the two companies—the one we will speak of as the Georgetown Company and the appellee—and then to determine whether the appellee can he held liable in this action. Mr. Bowen, one of the attorneys for the appellee, was called by the appellant and his testimony is the principal evidence in the record—that of Mr. -Smoot, the other witness, adding very little to what Mr. Bowen said, who testified that he was secretary of both, of those companies in March, 1917, when the trouble complained of occurred; that he was also' secretary of the Potomac Electric Company, the City & Suburban Railway of Washington, the Washington & Glen Echo Railroad Company, the Washington & Rockville Railway Company and the Washington, Woodside & Forest Glen Railway & Power Company, but the last is now merged with the Washington & Rockville Railroad Co.; that the Georgetown Company operated the line or route which was given to it by an Act of Congress on Wisconsin avenue or 32d street between 32d and M streets and the District Line; that tire appellee is composed of what at one time was the Washington & Great Falls Company, which started at 24th and Prospect streets and ran to the District. Line towards Cabin John, also the Maryland Company that runs from the District Line to* Cabin John, what was formerly the Metropolitan Railway Company, the Columbia Railway Company, the Auacostia aud Potomac River Railroad Company, and the Brightwood Railroad Company. ITe said that those companies were consolidated with the appellee under the provisions of the Act of Congress approved June 5, 1900, but that the Georgetown Company had not been consolidated with it and “was a separate entity, a separate corporation in every respect.

The relation merely of the Washington Railway & Electric Com ¹⁹⁹ pany to tlie Georgetown & Tenleytown Company is that of a stockholder.” We do not find in the record the precise relation the City & Suburban Eailway bore to tbe appellee. Mr. Bowen testified that he was secretary of the six companies named above, including the City & Suburban, but he did not mention that as one of those included in the consolidation or stale whether it includes any of those named as consolidated. He testified that the Georgetown Company purchased its electric current from the appellee and “If a car on the Georgetown and Tenleytown Company was damaged and needed repairs it would be sent to the common shops of the company. “Q. Of what company? A. Of the companies, the system, and the work that was put on that car charged to the company who is using the car under lease or was operating the car at tlie time of the damage.” He further testified that the directors and officers of the Georgetown Company and of the appellee are the same individuals, that those individuals, acting as officers and directors of both companies, meet in the City of Washington at 14th and C streets in a building owned by the Potomac, Electric Power Company and each company is charged its proportion of rent by the Potomac Company, and the treasurer of the Georgetown Company is the same individual as the treasurer of the Potomac Company; that the appellee controls the stock of the Potomac Company and the officers> are the same individuals as those of the appellee.

He said that separate minutes are kept in separate hooks, of each company, that the clerks in the secretary’s office are paid by each, company and the proportion of time they devote to each' company’s! business, but after all the above is accepted as true, and there is nothing to the contrary except a possible difference in the interpretation of some of the evidence and inferences- to he drawn from it, there is yet to he mentioned an important addition to Mr. Bowen’s evidence, and that is that it is admitted there is what is spoken of as the Washington Eailway and Electric Company System, which embraces all of these companies which at least in a sense, if not unqualifiedly, can be said to work together in ²⁰⁰ the railway business in and near Washington City. We find that throughout the record. Apparently offering some stationery which does not appear in the record, counsel for the appellant asked Mr. Bowen: “That is some of the stationery of the Washington Railway and Electric Company ? “A. The Washington Railway and Electric Company System, yes. Q. On the stationery of the Washington Railway and Electric Company System, you have the Georgetown and Tenleytown Company there, have you not?

A. Yes, sir.” Then, when a pass to one of the attorneys was produced Mr. Bowen explained: “This is described an employee's (record has employer's) pass, good on all lines of the companies included in the Washington Railway and Electric Company System.” Then follow these significant questions and answers: “Tell me what that means the Washington Railway and Electric Company System? A. The Washington Railway and Electric-Company System in legal significance I would not know that it has any special meaning; in operating significance it would have to this extent that that would entitle a holder.of that pass to ride over certain lines with which the Washington Railway & Electric Company may have contracts for the exchange of traille -or the interchange of traffic, without indicating at all whatl are the particular lines that, might be operated by one company or another. Q. Is that pass good on the Georgetown and Tenleytown and the Washington and Rock-ville Railroad Companies- ? A. If tendered on the line of the Georgetown and Tenleytown Railway Company between 32d and M streets and the District Line, it would be accepted.

Q. What company issues that pass? A. That would be issued, as the pass indicates by the Washington Railway and Electric Company System. Q. And the Georgetown and Tenleytown Railroad Company is part of the system ? A. It is in the sense that I have stated.” All of the conductors and motormen wore the same uniforms and they carried the books of rules, promulgated by that system for their guidance and direction.

The cars run from Rockville to 32nd and M streets in Washington over ²⁰¹ the Georgetown lines without change, and there is a continuous line of tracks. Nothing whatever appears in the record which would inform the public or suggest to the passengers that when they reached the District line they were under the control of a different company from the one with which they started. It is not shown in the record whether the plaintiff had a, ticket, but it is admitted in terms that she was a passenger from Rockville to Washington, and we understand it to be conceded that she had paid her fare as the declaration alleges. There is nothing to' the contrary, and unless that was conceded, or the contrary admitted, the Court would not have acted on the prayer without some evidence on the subject.

It was also stated by Mr. Bowen that Mr. J. T. Moffett was superintendent of transportation and Mr. Stevens was superintendent of both companies; that the City and Suburban Railway owned some of thé cars operated on the Georgetown Railroad and the appellee' leases some to the Georgetown Company, for which a charge per car per day is made. It is not stated that the Georgetown Company owned any cars of its own, and the inference seems to be to the contrary. This appears in the evidence: “Q. Who owns these larg'e cars that run to Rockville over the lines of the Georgetown & Tenleytown Railroad Company? A. There are certain cars that are owned by the Washington & Rock-ville Railroad Company that when they reach the District line are then taken over by the Georgetown & Tenleytown Railroad and operated by them as far as the Georgetown & Tenleytown line runs.

Q. But I mean which company actually owns these big cars, these cars that come out here? A. The Washington & Rockville Railroad Company owns certain cars, and it may be—I am giving my best recollection—