Steinberg v. Pullman Company

³³¹ Digges, J., delivered the opinion of the Court. The declaration in this case alleges that the plaintiff (appellant here) purchased from the Pullman Company, a body corporate, two tickets, by which he was entitled to use and occupy the drawing room on one of the cars of the appellee attached to the train en route from New York City to Star Lake, New York, on July 30th, 1926; “that while walking across the floor of the said drawing room the left foot of the plaintiff was penetrated by a rusty tack negligently and carelessly left lying on the floor by the agents or servants of the defendant corporation, who were then and there in charge oí the afore-named car.” The declaration further alleges that, by reason of the negligent act or omission of the appellee, its servants or agents, the plaintiff suffered an injury, wnich has resulted in a permanent disability to the foot of the plaintiff, and which injury required him to abandon his usual occupation, and has lost to him the emoluments of the business to which he otherwise would have been entitled; and that he has been otherwise greatly injured and damaged. There was had a trial by jury in the Court of Common Pleas of Baltimore City, resulting in a verdict for the defendant. The case comes here on appeal from the judgment entered on that verdict.

The record presents five exceptions, four to the rulings of the court on evidence, and the fifth to its action on the prayers. The exceptions taken to the rulings on evidence all go to the sustaining of objections by the defendant to testimony offered in respect to damages resulting from the injury. The plaintiff was employed at the time of the accident on a salary basis as an advertising manager for Schloss Brothers, and, while his salary was continued during the time he was disabled, the testimony sought to be adduced, and to which objections were sustained, was for the purpose of showing that the plaintiff might have received additional compensation for trips such as he had theretofore made in going over the territory in which the advertising was done. The court considered these questions as attempting to show speculative ³³² damages, and refused to allow them.

"While some of the questions to which objections were sustained may have been proper in laying a foundation for showing loss of extra compensation, we are not prepared to say that the rulings were erroneous; and in the view that we take of the case as a whole, they were certainly not reversible error, for the reason that they all related to the question of damages, necessarily predicated upon the right of recovery, while the jury’s verdict denied all recovery. There is no question that damage to the extent of $46 was proven, and if the jury, under the court’s instruction, believed that the defendant was liable in damages at all, they would certainly have rendered a verdict for the plaintiff in the amount of at least $46. This eliminates the necessity of passing upon the first four exceptions, unless there was error in the action of the court on the prayers requiring a new trial. Before discussing the ruling on the prayers, we will state briefly the facts upon which the suit was predicated.

According to the testimony of the plaintiff and his wife, who were residents of Baltimore, they were en route from their home to Star Lake, New York, for a two weeks vacation; upon arrival in New York City, on July 30th, 1926, they visited relatives, and at about 9.15 P. M. boarded the Pullman car and took possession of a drawing room, to which their tickets entitled them; the porter of the car entered the drawing room first, telling them to wait outside for a few minutes until it was made ready for their occupancy; that they were only required to wait two or three minutes, after which they went in and immediately retired for the night. That the only baggage which they had with them was “just a little hand-bag, an over-night bag,” which they handed to the porter and he placed it in the rack; that the plaintiff slept in the berth, while his wife occupied the couch; that the plaintiff awoke about 5.30 o’clock on the morning of July 31st, and getting tip for the purpose of calling the porter, stepped on a rusty tack, which punctured the bottom of his foot; that upon feeling the tack, he kicked back with considerable force and ³³³ struck the heel of his foot on the edge of the berth; that immediately thereafter he sat back on the bed and raised his foot, and “that tack was sticking there in the sole of my foot”; that he then called his wife, who applied iodine and rang for the porter to come; that not long after, the conductor came, and the accident was reported to him, and the tack shown to the conductor and porter. The testimony of his wife was practically the same as the plaintiff’s. She said that, when they arrived at the train, where they had Pullman reservation, the porter was there with a step; that he followed them to the drawing room; he did not let them enter immediately, but asked them to wait outside perhaps a minute or two; that the berths were all made when they went in; that the only baggage they had with them was the over-night bag, which was placed in the rack, and they retired promptly; that the next morning she had gotten up before her husband, and was in the wash room, when she heard a noise and asked him what had happened, and he called her to him; that at that time he had his foot on the bed, and there was quite a lot of blood on the sheet, and the tack was there; that she took the tack out and applied iodine to the foot and put tissue paper over the wound; that she then rang for the porter.

The conductor of the train testified that he was in charge of a section of train 59, of which the Pullman car on which the plaintiff and his wife were passengers was a part; that, he went to the drawing room occupied by the plaintiff and his wife, and the plaintiff said he had stepped on a tack, and showed him the tack; that the color of the carpet of that car was dark green; that there were twenty-three passengers on the car that night, and later on he reported the accident to the Pullman conductor. The porter testified that he had been employed by the Pullman Company as a porter for twenty years; that on July 30th and 31st, 1926, he had served as porter on the car in question; that plaintiff and his wife occupied drawing-room A; that the drawing-room was made up at the time the plaintiff entered the car; that he was ³³⁴ told by the plaintiff to call him thirty minutes before they arrived at Carthage; that he went to the drawing room to call the plaintiff and found that he was up and dressed; at that time he told the plaintiff that the train was late, and a few minutes later he returned to the drawing room in response to a call and was asked by the plaintiff to get the train conductor; that, as near as he could recollect, the plaintiff had two or three bags; that the color of the carpet on the floor of that car was dark, and that it was fastened to the floor of the car with a little peg fastened to the floor, with a ring in the carpet fastened over it; and the carpet on the floor of the drawing room was fastened in the same way; that the car was a steel car and had a cemented floor, and that he had never seen any tacks in the carpet, either in the drawing room or in the body of the car; that he went as far as Ogdensburg, about two hours’ run from Carthage; that the accident was reported to him after they left Carthage; that after the train got to Ogdensburg, he, together with the Pullman conductor, made a thorough examination of drawing room A; that he raised the carpet, raised the seat, swept it in the aisle, took the dust-broom, a little straw broom, took the sweepings up and examined them “to see if I could find anything. I did not find anything but the sweepings from the floor of the ■car”; that he did not find anything to account for the tack being in the drawing room or elsewhere in the car; that he ¡boarded the car that night at Mott Haven Yards, and that he had all the berths ready for the people when they came in at receiving time, at nine o’clock. This witness further testified that he remembered the plaintiff and his wife occupying the drawing room; that it was ready for them when they came; that he does not remember his requesting them to wait ó utside for any length of time, that it was not necessary, because the room was ready.

The Pullman conductor’s testimony wasi substantially that of the porter, in reference to- making an examination of the drawing-room by having it ¡swept out at Ogdensburg. On cross-examination he was asked: “Q. And he swept it out? ³³⁵ A. He did. Q. And got all the .sweepings in the dustpan. How much was in the dustpan?

A. Not very much; a few little pieces of dirt, that is about all, pieces that looked like mud, something like that.” That the car was a steel car with cement floor; that the supporting part of the berths is made of steel; that there is no wood in the car at all, “only the framework on the cushions would be naturally wood.” The yard foreman, at Mott Haven Yards testified that the train in question, and the car in question, were thoroughly cleaned in the usual course by men working under him ait Mott Haven Yards on July 30, 1926, the day of the trip in question, between 6.00 and 8.30 P. M., at which time the train left the yard for Grand Central Station; that he ‘horoughly inspected the train and car after they had been cleaned, to see that the work was properly done; that when the train left Grand Central Station it was inspected by a Pullman agent and also by a railroad inspector, shortly before the passengers were received at 9 P. M. The instructions contained in the granted prayers, which the jury were required to apply to the facts in order to reach •¿ determination, disclose that the degree of care which the law exacts of Pullman and sleeping car companies is that of ordinary care consistent with the business, in which the defendant was engaged; that it was the duty of the defendant; to use all reasonable precaution for the safety of its passengers ; that tbe law does not exact the unreasonable, and that; by “reasonable” is m°unt such conduct as