United Railways & Electric Co. v. Phillips

Burke, J., delivered the opinion of the Court. The appellant owns and operates an electric railway in the City of Baltimore. On the afternoon of July 28, 1913, Mrs. Maggie Phillips, the appellee, was a passenger on one of its cars, and she testified that she was injured by a fall which fractured her kneecap while a- passenger on the car. If the evidence produced on behalf of the plaintiff be true1, there can be no doubt that she was very seriously and painfully, and probably permanently, injured.

But the nature and extent of her injuries were matters exclusively for the jury, and are not subjects for review1 on this appeal. The appellee sued the railways company in the Court of Common Pleas and recovered a judgment against it, and the appeal before us was taken, by the company from that judgment. The declaration contained one count. It alleged that on or about July 28th, 1913, the defendant accepted the plaintiff as a passenger for hire on an eastbound car of its line at the corner of Lexington and Caroline streets, and that “after the plaintiff had boarded said car and had taken a place, standing in the aisle, it being necessary for her to do so, and while she was using due care, the agents and servants of the defendant in the charge and control of said car, negligently and carelessly caused it to start with a sudden and unusual jerk, and plaintiff was thrown violently to the floor on her knees, that in consequence thereof the plaintiff’s left kneecap was broken and she was otherwise badly shocked and injured, etc.” The Becord contains two exceptions—one relates to the admission of testimony and the other to the rulings on the prayer’s.

The important questions in the case arise upon the defendant’s first, second and third prayers, by which it was ³³⁰ sought to withdraw the case from the consideration of the jury, and upon the defendant’s eighth prayer, which is here transcribed: “The Court instructs the jury, that it is a well known fact that electric cars cannot be operated with perfect smoothness when being started or brought to a standstill or while in motion, and that there are certain irregular movements to which they are subject, and which do not justify the inference of negligence or carelessness on the part of those in charge, and even if the jury find, that at the time of the accident mentioned in the testimony in this case, the car gave a sudden and unusual jerk, that fact alone is no evidence of negligence on the part of the railway company, and the jury are further instructed that the plaintiff in this case is not entitled to recover unless the jury shall find from the evidence, that the motorman, in starting his car, did SO' in a careless and unusual manner.” In support of the case made by the declaration the plaintiff offered evidence tending to prove the following facts: That on the afternoon of the day on which she was injured, she boarded a north-bound Preston street car at Caroline and Pratt streets, paid her fare and got a transfer fox the corner of Lexington and Caroline streets, where she got off and waited for a car which came up> Lexington street and turned into Caroline street at this transfer point and which she intended to take to reach her home. There is a curve in the track at the corner of Lexington and Caroline streets, and at the time the plaintiff boarded the car at this point it was standing “perfectly still” with its rear end resting on the curve. It was an open summer car, with no aisle, and the seats ran transversely across the entire width of the car. The plaintiff testified that when she got on the car there were no vacant seats^ that she stood between the seats, and held on to the back of the seat in front, that was the only way she could hold.

She said: “I stood there between the two seats holding myself by the tips of my fingers the best I ³³¹ could, and while I was standing there the conductor pulled the bell and the car started. I couldn’t tell you exactly how far, but it could not have been more than a couple of feet when there was a sudden and unusual jerk that caused the passengers to scream out, and at the same time I fell to my knees, and then the conductor pulled the bell and came to my assistance.” When asked why she called the jerking sudden and unusual, she said: “You know often when a car starts there is a little jerk, and you have to be prepared for tbis, but tbis was sucb a violent jerk that it caused the passengers to scream, Oh!, and it swayed me forward and threw me down on my knees. * * * The conductor knew I fell, the crash was terrific, and everybody in the car heard it. It was as though you would tear a big piece of muslin, and he came to me and said are you hurt, and I said, I don’t know, bnt I think there is something the matter with my knee.” She said that when she reached Yorth Lakewood avenue and Eairmount avenue the conductor helped her off, that she was unable to walk and sank down on tbe street, and that she then realized how badly she was hurt. She was taken to her home in a wagon, and a physician summoned, who testified as to the serious nature of the plaintiff’s injuries, which the evidence tends to show she sustained from the fall in the car.

It is not claimed that the plaintiff was guilty of contributory negligeuce, but the position of the appellant is that the facts stated do not raise a presumption of negligence on its part in the management or operation of the car, and as there was no other evidence on the question of negligence offered by the plaintiff, the Court should have directed a. verdict for the defendant.