State ex rel. Sharkey v. Lake Roland Elevated Ry. Co.

Russum, J., delivered the opinion of the Court. This is an appeal by the plaintiff below from the rulings of Dobler, J., sitting in the Superior Court of Baltimore City, without the intervention of a jury, in a suit brought by the appellant, plaintiff below, against the appellee, for the recovery of damages for the death of the husband of the equitable plaintiff, caused by the alleged negligence of the appellee. The appellee runs and operates an electric railway, for the transportation of passengers only, from the ¹⁶⁶ corner of North and Fayette streets, in Baltimore City, to Roland Park in Baltimore County. There were two sets of tracks, running north and south, on Roland avenue, the distance between which was sixty-one inches.

The wires supplying the electric fluid by which the cars are propelled, are supported by poles ten inches in diameter, planted between these tracks. The car from which this accident occurred was an open or summer car, and was constructed without guards, so that passengers could enter or alight on either side. It had eight or ten rows of seats running transversely, and a foot-board, on each side, extending its entire length. This car projected one foot over the tracks and the foot-board six inches, additional, making the entire projection eighteen inches.

On the morning of September i ith, 1894, James T. Sharkey, the husband of the equitable plaintiff, boarded this car on its trip north to Roland Park. He had often ridden on it before, and always got off at Cold Spring lane. He took a seat on the left side, the fourth row from the rear. After the car left Heath Brook station, and whilst it was some distance from Cold Spring lane he looked back several times, but the conductor, who was at the rear end with his manifest in his hand preparing to make it up, did not see him.

He then arose and placed his left foot, which was nearest, on the foot-rail as if to alight, caught with both hands the two uprights between the benches, one in each hand, and was turning around and motioning the conductor, and whilst in that position, and while the car was some distance from Cold Spring lane and moving rapidly, was struck by one of the poles planted between the tracks, thrown from the car and died in about two hours afterwards. At each end of the car there was a notice warning passengers (1) against riding on the platform or putting' their heads or arms out of the windows ; (2) prohibiting jumping on or off the car while in motion; (3) that cars stop for passengers at cross streets only; (4) against attempting to leave the car on the bridge over Stony Run, at any point, or on the elevated railway, except at stations, and (5) admonishing them ¹⁶⁷ that “loss of life or injury to persons may result from a violation ” of that notice. At the close of the testimony the defendant offered a prayer asking the Court “ to give judgment in its favor against the plaintiff because the undisputed evidence in the case shows that the death of the said Sharkey was directly contributed to by his own negligence,” which was granted, and from this ruling this appeal is taken. There is no difficulty about the law applicable to the facts just set forth.

There being direct evidence of the cause of the injury there is no room for the invoking of a presumption in regard to it, because the proof of the fact rebuts the presumption. Andrews’ case, 39 Md. 329 ; P. W. & B. R. R. Co. v. Stebbing, 62 Md. 518 . The responsibility of the appellee for the safe carriage of passengers is founded upon contract. The law casts on it the obligation of providing safe means of transportation and the employment of skillful agents, and while it is responsible for the consequences of any failure or omission in this respect, as well as for the negligence of its agents, there is also imposed on the passenger the duty to obey the reasonable regulations of the company in entering, occupying and leaving its cars ; and nothing less than some existing necessity, beyond his control, can justify a passenger in a breach of his contract and render the company liable for injuries received in consequence of a known violation of such regulations.

The Penna. R. R. Co. v.