Tall v. Baltimore Steam Packet Co.

McSherry, C. J., delivered the opinion of the Court. There are several questions relating to rulings on the admissibility of evidence and one in regard to the granting of an instruction taking the case from the consideration of the jury, included in the only bill of exceptions which the record contains. This is an unusual and an erroneous way to present such essentially distinct propositions. The ruling on each question should form the subject of a separate exception. “ We * * are,” says this Court in Ellicott v. Martin, &c., 6 Md. 517 , “of opinion that each distinct exception which embraces an independent proposition of law, should be signed and sealed by the Court below, before it can be regarded as a valid exception.

This remark does not apply to a series of consecutive prayers offered by the counsel. In such a case the ruling of the Court, in either granting, rejecting or modifying the prayers, may be regarded as a single act, and one exception, if properly-taken and executed, may embrace the whole.” Passing by this irregularity, though by no means intending thereby to establish a precedent which will be followed hereafter, we come to the case as we find it. The defendant below—the appellee here—is a corporation owning a line of steamboats which ply between Baltimore and Norfolk. The plaintiff below—the appellant here—was in March, eighteen hundred and ninety-eight, a passenger on the Alabama, one of the appellee’s boats.

After getting his supper he went into the smoking-room of the steamer, where some twenty or more men-passengers were smoking and conversing. In the room there were several small tables and a number of chairs for the use of passengers. Shortly after the appellant went into the ²⁵¹ smoking-room Captain Bohannon, who was in command of the vessel, also entered, and remained there in conversation with some of the passengers until the occurrences now to be briefly narrated took place. At one of the tables in the smoking-room a passenger named Batten and another named Merritt were playing a game of cards for money, whilst others were looking on.

A dispute arose between the two players and Batten applied to Merritt a vile epithet. The latter then arose and left the room. In a few minutes he returned, having his hand on his hip-pocket, and going up to Batten said something which was heard by only one witness. Instantly Batten struck Merritt a heavy blow, knocking him down, the captain sprung forward simultaneously and intervened, but Merritt drew a revolver from his pocket and fired ; the bullet missed Batten and struck the appellant, who was standing some distance away.

It lodged in his elbow and severely wounded him. For the injury thus inflicted the appellant brought this suit against the steamboat company. The gravamen of the narr.—the sole ground upon which a right to recover is based—is the alleged negligence and want of care on the part of the defendant’s servants and agents in failing to preserve order and to exercise proper control over its passengers. Before adverting to the legal principles which lie at the foundation of the case, it will be necessary to state with a little-more particularity the facts immediately surrounding and just preceding the shooting; and we will then determine, first, whether, as submitted to the jury, the facts created a liability on,the part of the defendant; and secondly, whether the rejected evidence was admissible, and if admissible whether, had it been admitted, it would have furnished any better ground for a recovery than existed after its exclusion.

Going back to the point of time when Merritt returned to the smoking-room with his hand on his hip-pocket— this being after Batten had applied to him an opprobrious epithet—the events that followed in rapid succession are ²⁵² thus described by Mr. Beecham, one of the plaintiff’s witnesses, and his description is not materially varied by the others who testified: Directly Merritt came in the witness looked over to Captain Bohannon and said “come here, come here, come here quick and as he looked back at the affair, and long enough for him to forget the fact that he had called the captain, and while his attention was entirely fixed upon what was going on, he heard a voice saying, “what is it, what is it,” and he replied “ there is going to be a fight.” Just at that very moment Batten reached up with his right and knocked Merritt down. When he, witness, heard a voice saying “ whaf is it,” he turned, and it was Captain Bohannon. The captain had asked him that question and he immediately pointed over showing towards Merritt’s back, which was turned towards him and said to the captain, “ there is going to be a fight,” and that very moment Batten struck up and struck Merritt with his right, and the captain jumped right into it and Batten then sprang over the chairs towards the bar-room, and Merritt immediately fired into the crowd in the direction of where the lamplighter is. The witness was then asked : “ After you called the captain, did the shooting take place before he came?” and he replied: “ Oh, no, the shooting took place after he came, after he responded, after he answered me, at least after he called my attention, at least made the remark ‘what is it, what is it,’ and after that the shooting occurred,, but it was very quick work ; after he answered me, just at that moment, the man Batten raised up and struck Merritt, and I suppose the captain saw that part of the fracas also at the same moment, for he jumped right into the midst of it, but he was a little too late, and the pistol went off” Now what, in these circumstances, was the duty which the carrier owed the passenger, and in what, if in any respect, was that duty disregarded ?

The answer to these inquiries will decide whether the trial Court was right in withdrawing the case from the jury, even though it be conceded that all .the evidence adduced by the plaintiff was true, and though ²⁵³ the legitimate inferences deducible from it be given due weight in connection with that evidence. A carrier is not an insurer of the absolute safety of his passengers; yet he is bound to use reasonable care according to the nature of his contract; and as his employment involves the safety of the lives and limbs of his passengers, the law requires the highest degree of care which is consistent with the nature of his undertaking. B. & O. R. R. Co. v. State, use of Hauer, 60 Md. 449. This, though the measure of the carrier’s duty as between him and his passenger in respect to the acts or omissions of the carrier and his servants towards the passenger, is not the standard by which his liability to the passenger is to be guaged or determined when intervening acts of fellow-passengers or strangers directly'cause the injury sustained whilst the relation of passenger and carrier is subsisting.

Such an injury, due in no way to defects in the means of transportation or to the method of transporting, or to an actual trespass by an employee whilst the relation of passenger continues and involving, therefore, no issues of negligence concerning the duty to provide safe appliances and competent and careful servants to operate them, but arising wholly from the independent misconduct of a third party, furnishes a ground of action against the carrier only when the carrier, or his servants, could have prevented the injury but failed to interfere to avert it. The duty of the carrier in such instances is, consequently, relative and contingent, not absolute and unconditional. It springs from a condition, not of the carrier’s but of a third party’s creation, coupled with a knowledge by the carrier’s servants that the condition exists, and with time enough intervening between the acquisition of the knowledge and the infliction of the injury to enable the servants of the carrier to protect the passenger from the third party’s misconduct. The negligence for which, in such cases, the carrier is responsible is not the tort of the fellow-passenger or the stranger, but it is the negligent omission of the carrier’s servants to prevent that tort from being com ²⁵⁴ mitted.

The failure or omission to prevent the commission of the tort, to be a negligent failure or omission, must be a failure or an omission to do something which could have been done by the servant; and, therefore, there is involved the essential ingredient that the servant had knowledge, or with proper care could have had knowledge, that the tort was imminent, and that he had that knowledge, or had the opportunity to acquire it, sufficiently long in advance of its infliction to have prevented it with the force at his command. If this were not so, the mere tort of a fellow-passenger or a stranger would constitute of itself, the negligence of the carrier, and the carrier would be held answerable for wrongful acts of a third party, though the carrier’s servants were, without fault, ignorant of the third party’s purpose to make an assault and were, consequently, unprepared to avert it. Such a rule would make the carrier an absolute insurer of the safety of the passenger against the wrongful conduct of third persons, though, as between the' carrier and the passenger in ordinary cases, the carrier’s liability is made to depend on his or his servant’s negligence. In B. & O. R. R. Co. v. Barger, 80 Md. 30 , we said : If a conductor “has the opportunity to prevent an assault on a passenger in his charge, it is his duty to do so, and his failure to make a reasonable effort to protect the passenger from such assault, would make the company responsible.” Or, as differently expressed in Ill.

Cen. R. R. Co. v. Minor, 69 Miss. 710 , “a common carrier is required to protect a passenger from an unprovoked assault of a fellow-passenger, if the conductor knew that it was threatened and could have