Rosenkovitz v. United Railways & Electric Co.

Briscoe, J., delivered the opinion of the Court. The record in this case contains' four bills of exception. Three relate to the rulings of the Court upon the admissibility of testimony, and the fourth presents the action of the Court in refusing the plaintiff’s prayers, in granting the defendant’s third, fourth, and sixth prayers, and further in granting a writ ³⁰⁹ ten instruction designated as Court’s Instruction No. i in lieu of the plaintiff’s rejected prayers, and also to the action of the Court, at its own instance, in granting a verbal instruction, which will be quoted in full in a subsequent part of this opinion. The suit was brought by the plaintiff, an infant, by his father and next friend, in the Superior Court of Baltimore City, against the defendant corporation to recover damages for personal injuries sustained while upon one of the defendant’s cars, as particularly detailed in the several counts of the declaration.

The narr. contains three counts. The first alleges that whilst the infant was a passenger and was conducting himself In an orderly and properly manner, the defendant corporation by its servants and agents wrongfully and unlawfully assaulted ■and beat him, and forcibly and unlawfully ejected him from the car, whereby he was seriously and permanently injured and suffered mental and physical pain and anguish. The second avers that the plaintiff, an infant of about nine years of age, was with the leave and license of the defendant company, upon one of its cars, and while so rightfully upon the car was assaulted, beaten and permanently injured in the manner stated and set out in the first count. And the third count charges, in substance, that the plaintiff boarded the defendant’s car on or about the 3rd of July, 1905, intending to become a passenger and offered to pay his fare, but that he was wrongfully assaulted and ejected from the car while it was moving rapidly by the conductor thereof in the manner described in the previous two counts.

The case was tried before a jury and the judgment being for the defendant, the plaintiff has appealed. The substantial issue in the case is presented by the rulings •of the Court as set out in the bills of exception and the conclusion reached by the jury on the facts renders it unnecessary for us to do more than to examine the questions raised by the action of the Court in its rulings. The plaintiff was a newsboy about nine years of age, selling papers upon the streets in the city of Baltimore, and on the ³¹⁰ 3rd of July, 1905, boarded one of the appellee’s cars near Exeter and Lombard streets, for the purpose of selling papers and for the purpose of proceeding further in the city to serve his customers. The theory of the infant plaintiff’^ case is that he was upon the defendant’s car as a passenger, or that he intended to become such and offered to pay his fare, but when he was handing the conductor the fare, the latter grabbed him and said, “Get off, you damned Jew,” and kicked him off the platform of the car while it was in motion.

The boy’s testimony was corroborated by the witnesses’ Salerno and Hartman, who testified on behalf of the plaintiff. They were on the street, near the car, and stated they saw the conductor grab the boy and kick him off the car. The evidence on the part of the defendant company was in direct conflict with that offered on the part of the plaintiff. The conductor testified that he never assaulted the boy, did not grab or kick him, or say to him, “get off, you damned Jew,” and the boy did not offer to pay his fare.

He further testified: “On July 3rd, 1905, a newsboy boarded the car at Pratt and Exeter streets. The car stopped at Granby and Exeter streets to let a lady on, and I told him to get off, and he had plenty of time to get off when the lady got on, and I went in to collect the lady’s fare, and when I came out the .boy was still on the rear platform, and he saw me coming out and got scared and jumped off and fell over some watermelons. I didn’t touch him; never had my hands on him. He got on at Pratt and Exeter streets and I stopped at Granby street to let a lady on and I told him to get off; the boy was then standing on the. sidewalk on the street; when I told him to get off he was on the rear platform standing beside the rail on the right-hand side.” The conductor’s testimony was supported by that of two> passengers, who were on the platform of the car at the time of the occurrence, and who testified on the part of the defendant company.

In this state of the proof, and there being a manifest con ³¹¹ flict in the evidence, it is clear upon all the authorities that the questions of fact were for the jury to determine upon proper instructions from the Court, and the verdict of the jury is conclusive on the facts. The questions then upon this branch of the case are exceedingly narrow, because unless the Court committed some error whereby the plaintiff was injured, in its rulings on the evidence and the prayers, or in its action in submitting its own written and verbal instructions, the judgment of the Court must stand and cannot be disturbed. The record does not disclose any reversible error in the rulings of the Court in permitting the questions to be asked the witness set out in the first, second and third bills of exception. The questions may be regarded as somewhat leading, and for this reason, bad in form for examination in chief, but it is difficult to perceive in what way either the questions propounded or the answers given could have injured the plaintiff’s case.

Leading questions are defined to be those which ordinarily suggest to the witness the answer desired or which, embodying a material fact, admit of a direct answer by a simple yes or no, or which instruct a witness how to answer on material points. In Buschman v. Morling, 30 Md. 388 , it is said: “Under what circumstances such questions may be asked is a matter very much under the control of the Court, in the exercise of a sound discretion.” There was no objection offered to the questions as leading at the time they were propounded and before they were answered. There was no reversible error in the rulings under these exceptions, Frownfelter v. State, 66 Md. 80; Jones v. Jones, 36 Md. 447 ; Black v. B. & O. R. R. Co., 107 Md. 642 . We come now to the rulings of the Court upon the prayers, as presented by the fourth exception and here, it will be observed that neither the granted, rejected nor modified prayers, make any reference to the pleadings, nor are they referred to in either the written or oral instructions given by the Court.

In such case, no question upon the pleadings can arise in this ³¹² Court, but the broad proposition is presented whether the evidence establishes a case entitling the plaintiff to recover in any form of action. Fletcher v. Dixon, 107 Md. 420 ; Bldg. Asso. v. Grant, 41 Md. 569 ; Leopard v. Canal Co., 1 Gill, 222 ; Giles v. Fauntleroy, 13 Md. 126 . At the trial of the case, the Court rejected all of the instructions submitted by the plaintiff and stated to the jury, that he gave in lieu of them, “Court’s Instruction No. 1,” covering the general grounds sought to be presented by the instructions asked by the plaintiff.

The Court’s Instruction No. 1, was as follows: “If the jury believe that the plaintiff got upon the defendant’s car -for the purpose of riding as a passenger and duly tendered or was about to tender his fare to the conductor, but that the conductor without reason or excuse refused to receive said fare, called him a “damned Jew” and forcibly and wantonly ejected him from said car, giving said plaintiff a kick as he ejected him, then the verdict should be for the plaintiff.” The defendant’s third prayer it appears from the record, was granted, in connection with the Court’s written instruction, and is to this effect: “If the jury believe that at the time he received the injuries the plaintiff was upon the car of the defendant for the purpose of selling newspapers to the passengers, then the verdict must be for the defendant, unless the jury further find that the injury to the plaintiff was caused by the conductor of the car either wantonly or with reckless carelessness pushing and kicking the plaintiff off the car while it was in motion.” It is the settled law of this Court, says Bartol, C. J., in P. W. & B. R. R. Co. v. Harper, 29 Md. 330 , that “it is competent for the Court below to reject all the prayers offered and grant instructions to the jury in its own language, and where these are correct and cover the whole ground, the judgment will not be reversed though some of the prayers might have been granted.” But when this is done, all the cases hold “the law ought to be declared fully and accurately and in terms certain, explicit and intelligible to the jury upon the points raised by counsel. ” ³¹³ There was no error in the Court’s Instruction No. i, in lieu of the plaintiff’s prayers under the evidence in the case, nor to the defendant’s third prayer granted in connection with it. The defendant’s sixth prayer as to compensatory damages, and the Court’s verbal instruction as to punitive damages, in connection with the Court’s Instruction No. I, are also free from objection. It will not then be necessary in deciding the law applicable to this branch of the case to refer to the plaintiff’s prayers, becayse they were all rejected by the Court, and Court’s Instruction No. i, was given in lieu thereof. If that instruction covered the law of the case as we have held in connection with the other granted prayers the appellant would have no cause of complaint in this