State ex rel. Scott v. Washington, Baltimore & Annapolis Electric Railroad

Burke, J., delivered the opinion of the Court. The appeal in this case was taken from a judgment rendered in favor of the appellee in the Circuit Court for Prince George’s County under an instruction of the Court by which the case was withdrawn from the consideration of the jury and a verdict directed for the defendant. ⁶⁰⁵ The suit was brought in the name of the State for the use of Eleanor Sanford Scott, the widow of Oscar Scott, and his infant son, Kenith. Walter Scott, to recover damages for the death of the husband and father who was alleged to have been killed by tbe negligence of the defendant. The record contains two exceptions taken by tbe plaintiff during the course of the trial.

The first relating to a ruling on evidence, and the second to the granting of the prayer submitted at the close of the plaintiff’s case withdrawing the case from the consideration of the jury. The declaration contained two counts; but there was no evidence to support the second count, and it is conceded that no recovery could have been had under that count. The defendant is a common carrier of passengers for hire and owns and operates an electric railway between tbe City of Washington, in the District of Columbia, and Baltimore City, in the State of Maryland. Oscar Scott, the deceased, boarded the defendant’s car as a passenger at White House Station, 15th and H streets, Washington, for D'odge Station on the defendant’s line on July 1, 1915, about 7:20 P. M., and was killed at Spring-man’s Crossing, Maryland, by a car of tbe defendant, running from Baltimore to' Washington.

The alleged breach of duty on the part of the defendant, upon which the suit is based, is specifically set out in. the first count of the declaration. After stating that the deceased was a passenger upon the defendant’s ears and that it was its duty to exercise the highest degree of care towards his safety, it alleged that “said defendant railroad company became and was negligent, in that on the day aforesaid, after said plaintiff’s intestate who had been drinking intoxicating liquor, had purchased a ticket entitling him to safe transportation from this city to a place or station in the State of Maryland called Dodge Park, and to fit, proper and adequate protection while he, said plaintiff’s intestate, was- being conveyed to his said destination, and after said plaintiff’s intestate had been placed upon one ⁶⁰⁶ of the defendant company’s ears by said defendant company, by and through its servants, agents and employees-, and had taken his seat therein, and after said car had been started from Washington for the destination of said plaintiff’s intestate at said D'odge Park Station, in the State of Maryland, as aforesaid, but long before it had reached there, s-aid defendant company, in violation of the duty owed said plaintiff’s intestate-, as aforesaid, who was behaving himself in a seemly and proper1 manner, by and through its conductor, servant or servants or agents then and there in charge- of said car, maliciously, wilfully and wantonly assaulted, beat, kicked and grievously wounded and injured said plaintiff’s intestate, without cause therefor on his p-art, and violently ejected and threw said plaintiff’s intestate from its said car, whereby and by reason of which said treatment in the then condition of said plaintiff’s intestate, he was so dazed, disabled and injured as that after being thus ejected from said defendant ■company’s car, he was in a helpless condition and wandered aimlessly about s-aid defendant company’s tracks and right-of-way in his effort to find and gp to his home at said Dodge Park, in the State of Maryland, as aforesaid, until later he was struck and killed by another of said defendant company’s cars which was southébound and on its way from 'Baltimore to the City of Washington and District of Columbia.” Assuming as contended by the plaintiff that the expulsion of the deceased from the defendant’s ear in the District of Columbia was unlawful and that he was assaulted and maltreated by the defendant’s agents in charge of the oar, the important legal question presented by the appeal is this: Does the record contain any evidence legally sufficient to shoiw or tending to show any legal connection between the- negligence alleged and the- death of Scott ? Stated in another way, did the plaintiff offer any evidence legally sufficient to show that there existed the relation of cause and effect between the negligence alleged and the death of Oscar Scott ? The determination of this question depends upon an accurate statement of the material facts appearing in the record.

In the ⁶⁰⁷ last analysis questions of proximate and remote- cause must ■depend on the facts of each particular case. 7 Am. & Eng. Ency. of Law (2nd Ed.), 1381. Oscar Scott was 32 years of age. He was a carpenter, and Was familiar with the defendant’s road, having been employed by the company as an inspector of ties.

He lived near Dodge Station, Prince George’s County. Shortly before his death he was working at his trade and was making four dolalars per day. On the morning of July 1, 1915, he left home and went to> Washington. Mrs. Scott, his widow; testified that he did not go to- Washington that morning to work -as he was sick; that he had been home two weeks.

The record contains nothing as to Scott’s whereabouts from the time he left home until he boarded the car on his return trip at about- 7:20 P. M. He took a seat- in the smoking compartment. He was sick and vomited in the car. A witness said he was “sick at the stomach.” There were four occupants -of the smoking compartment, viz., Scott, a colored man, and two white men. After1 Scott vomited, the two white men went into the passenger compartment.

W. O. Kobinnett, the motorman, testified, that he saw Scott on the car; that as the -ear came along Bennings race track the conductor came out front and said to- him: “That he had a passenger back there that wouldn’t pay his fare, and that he had been drinking .and wouldn’t pay his fare, and he said, ‘stop- up there. I want to put him off;’ that was- along at Bennings; it was .along about Bennings liaee Track. So when we got to Minnesota avenue I stopped the car and waited a minute, sitting in my cab, and I heard a commotion out in the baggage room. The baggage compartment was on the front, the smoker next to that and the pass-euger compartment, behind that. 1 heard the commotion out the-re and I sat still in my cab.

I heard the conductor arguing with him, trying to get him to- pay his fare, and he would not pay his fare. He said he was not going to- pay the conductor his fare. Then I stepped back in the baggage part where he was.” When the car reached Minnesota avenue the conductor attempted to put Scott off. He ⁶⁰⁸ resisted.

Pie was put off twice and jumped back and held to tbe hand bars. The car would move slowly and stop. The witness, White, testified: “He got off the car a couple of times—they got him off the car and he would jump- back on; he was right on the other side of Minnesota avenue when witness saw the conductor kicking; about a block and a half or two blocks from Minnesota avenue. The car had stopped the last time they put him off; the car was running slow; it would stop like and they couldn’t get him off, and it would run a little further; he was hanging on to the grips—standing on the steps; didn’t see whether or not he was dragged; heard the conductor tell Mr. Scott to get off, that is all witness heard.

Didn’t hear Mr. Scott make any reply. Didn’t hear the motorman say anything. The motorman took part in putting; Mr. Scott off; the last witness saw of Scott he was going back down the track .toward. Minnesota avenue; Scott’s apparent condition during the time he was being put off was that of a sick man; he was vomiting when he first got on the car; that is what made me go out of the smoker; the conductor’s manner exercised towards S'cott throughout the ejectment was ‘an ugly manner.’ ” Bernard E. Howard testified he was in the passenger compartment and heard- a commotion in the smoking car. “That between the smoking and passenger compartments there were no other compartment on the car; when the attention of witness was first attracted by the commotion did not investigate at first to see what it was about, but later on -he did and found that after the car left Minnesota avenue—they stopped at Minnesota avenue and I understood they were putting a man off—but witness was reading and did not pay much attention to it until after they started up and witness heard some woman in the back say ‘that man will get killed.’ The car witness was in, had a motorman and a conductor and after witness went in the smoking car to- see what the commotion was about—didn’t notice how many people were in the smoking-car at the time; only went to the door; thinks there were very few but couldn’t tell how many—first thought that the ⁶⁰⁹ conductor and Scott were guying’ or fooling with each other, and witness went back and sat down, but after the car started at Minnesota avenue, and heard this woman back there say ‘that man will get killed’ went forward through the smoking car and found Scott standing on the bottom step1 with hia hands on the brakeholds, and saw the conductor trying to get Scott to get off, and after Scott wouldn’t get off he started lacking his hands; can not tell with what force these kicks were drove with but he was kicking with hia left foot, and seemed to be worked up trying to get the man off, and he kept kicking him on the hands trying to make him loosen Ms hold on the handholds.; they had run—they were running very slow—about a. square and a half witness guesses, as far as he could judge from the inside of the car and ‘Scott was holding on and refused to get off.

He was telling the conductor that he had his ticket and he knew he had Ms ticket and the conductor told him to get off. He said he wanted his hat, and the conductor told him to get off and go after his hat. The hat was lying between the tracks. The motorman asked Scott to get off.

Scott said: ‘What in the H-have you, got to do with it? "What do you want to get into it for ?’ The motorman said, T don’t want to get into this, but if 1 do get into it and then you will have to get off.’ Then I turned around and went back into the passenger part of the car and sat down with my wife. Witness told the conductor once that he oughtn’t to put that man off between the tracks, but he didn’t pay any attention, and Scott was finally put off about a square and a half the other side of the far stop at Minnesota avenue, as near as. witness could judge of it; he was put off the forward end of the car, on the inside; between the tracks. Didn’t see him at the particular time that his. hold was severed from the car, but when witness started to sit down with his wife he heard somebody say that the man was off and that the man had fell underneath the car.

That witness looked underneath the car and saw Scott getting up, like from the side of the car, and staggering along towards the edge of the track.” ⁶¹⁰ It thus appears that S'cott was finally ejected from the car in .open daylight, in the District of Columbia, not far ■from Minnesota, avenue and that he was by n0‘ means in a ■physically helpless condition as he displayed considerable strength and determination in resisting expulsion from the •car. He v was no doubt excited and disturbed by this encounter with the conductor, but there is no evidence in the ■récord, or offer of evidence that he was mentally unsound or had ever suffered from any mental disorder. The condition .of the- deceased’s health on the day of his death and for two •weeks prior thereto was testified to by Mrs. Sbott and there ^vas’- jio-.contradiction of her evidence, and therefore there was.'-ho--reversible error in the ruling embraced in the first 'exception.' wherein the Court refused to permit Miss Scott to testify! as “to the condition of the plaintiff’s health just prior folJuly 1, T915.” : > • From Minnesota avenue, near which Scott was finally expelled from the car, to Springman’s Crossing, where he was killed, the distance is variously estimated from one and a half to two and a half miles. He appears to have walked this distance over or along the defendant’s right of way in less than an hour, as he was seen by one of the witnesses in the Casualty Hospital, Washington, at 8:30, where he died.

The facts do not support the allegation of the narr., that after the deceased was ejected from the car “he was in a helpless condition and wandered aimlessly about said