Western Maryland Railway Co. v. Shatzer

Boyd, C. J., delivered the opinion of the Oourt. This is an appeal from a judgment -obtained against the appellant by the appellee for injuries- sustained by be-r by reason of the alleged negligence of the railroad company. The-only bill of exceptions in tbe record presents the rulings of the lower court on the p-rayers, three- o-f which were offered by the plaintiff (appellee), and granted, and twenty-five were offered by the defendant (appellant) the first, second, third, foimli, fifth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth and eighteenth of which were rejected and the others were- granted. ²⁷⁸ The appellee was employed as a cook by the Western Union Telegraph Company and was injured on October 25th, 1920, while she was riding in one of three camp cars of the telegraph company, consisting of a tool car, a dining car and kitchen, and a sleeping and office ear, which Were being taken from Hagerstown to Big Pool Station, and were attached to the rear of a freight train of the appellant, which included thirty-five cars, besides the caboose. When the train reached the station called Oharlton, it was stopped for a short time and, as it was starting, there was, according to the plaintiff’s evidence, a very severe jolt.

There were on the camp oars the plaintiff, her husband, who was employed by the telegraph company and aided his wife in cooking'for'the hands, and three other employees of that company. She testified that .she was thrown with great violence on the stove in the kitchen, her husband was thrown to the floor and his head cut iu two places; that the table was thrown ag’ainst the kitchen door, the dishes were strewn on the floor, and several chairs were upset in the dining car; that two windows were thrown on the floor, and the frame and glass were broken, a large plate glass window being broken into small pieces. W. H. Small was in what he called the “lobby,” which is a part of the sleeping car, and he said the jolt threw, him back on the floor; that another man was thrown on the top of a table in there, the table was upset, and he1 went over the top of the other man; that the table was. fastened down with wood screws, and the jar drew them out, upset the table and broke the legs off. Without giving further details as to- the jolt, or crash, as soma of the witnesses spoke of it, there is ample evidence to .show that it was very severe, and the plaintiff was injured.

It is said on the part of the defense that the brakes on the telegraph cars were different from those on the freight cars., hut however that may he, on the question of negligence there was sufficient to go. to the jury, if the defendant was liable, as there is no satisfactory explanation of what caused the conditions .shown, if the train was properly handled. The evidence of the engineer and conductor tended to ²⁷⁹ show that there was 11a unusual jolt or jar of the freight train observed by them, but they did not, testify to, or deny, the damage spoken of. An agreement was entered into on the 21st of September, 1892, between the AVestern Union Telegraph Company and the Western Maryland Railroad Company. It recites that the parties jointly owned the line of poles along the railroad from Baltimore to Hagerstown and Williamsport, and that the railroad company owned lines, of poles between points named in the agreement, including; those from Williamsport to Cherry Run, and the telegraph company owned the wires upon said poles.

It was agreed that all of the lines and poles should be sold to the telegraph company as therein provided. A supplemental agreement was entered into on December 8th, 1915, which also continued in force the former agreement referred to and shows, amongst other things, that the appellant is the successor of the AA7estera Maryland Railroad Company, which accounfc for the use of the words “railroad” in the agreement, and “railway” in this suit. The agreement of 1892 provides that “the railroad company agrees to transport free of charge over its railroads, upon application of the superintendent or other officer of the telegraph company, all persons in the employ of the telegraph company when traveling on the business of said company,” etc. There is also this provision in, it: “It is a condition of this contract that the railroad company is not to be responsible for and the telegraph company hereby covenants and agrees to save the railroad company harmless and indemnify it against any loss or damages of any kind arising1 from, any injury to persons in the employ of, or property belonging to the telegraph company, while being carried free over said railroads under tins agreement,” etc. The record shows that, in accordance with the agreement between the two companies,, passes were given, and it w'as customary to issue them, to a foreman and ten men. The plaintiff at first stated she never used a pass before the accident, hut later, after she was shown two identification cards ²⁸⁰ from Deerfield to.

Baltimore, and from Baltimore to Deerfield, signed by E. P. Tottman, assistant plant superintendent, she acknowledged her bandwriting on them. She said that Mr. Reeehert, timekeeper on the cars, gaye her the identification slips; that when the conductor on the passenger train came around, she handed him the pass and the slip-. She was asked: “Did 'he give you hade the pass?” and replied, “BTo, sir, I did not have any pass. Mr. Gibson or Mr. Small — I believe Mr. Gibson — carried the pass, and the conductor handed the pass back to him, I think.” She said Mr. Gibson was one of the employees of the Western Union, and he carried the pass that passed her to Baltimore; that she ea-me back with him and he used the pass coming back.

She also said that three days before tbe accident she went from a point close to Baltimore to Asbestos, on a passenger train, and that she traveled on a pass reading, “Bor foreman and ten men,” with the same slips. She mid on that trip she left on Saturday, came back Sunday, and was injured on Monday. She further said that, when she -handed the conductor the pass, he gave it back to her and, on the return trip, she handed it to the conductor and he gave it back to- her again, retaining the identification slips; that Mr. Reeehert gave her that- pass when'he gave her the slips, and when she g*ot back from t-he trip. she. gave it to Mr. Reeehert. This appears in her testimony: “Q. Blow, at the time you made this trip' from Asbestos did you- read the pass ? — the front part ?

A. Yes, I did, I .suppose, in a general way. Q. What did it say, in general terms? A. I really could not say. Q. Did it s-ay pass foreman and ten men ?

A. Yes, sir. Q. What was on the back of the pass'? A. I really could uot tell you. Q. Was there anything printed on the back of the pass at all?

A. Yes; there was some printing on the hack of the pass, but I can’t recall at the present time what it was. Q. Didn’t the pass read that the company would not he liable to any person traveling on that pass for negligence resulting in injury, or in any event whatever? A. I don’t know about that. I can’t recall what was on that pass.” ²⁸¹ She said that she did not pay any fare for any trips made duriiig the time she Was employed, while riding; in passenger ears, or in camp ears.

W. H. Small, who Was- on the camp ears at the time o-f the accident, testified that he carried a pass which said on its face, “For one foreman and ten men, when accompanied hy a letter of identification.” He said he thought that pass covered the transportation of the five people from Hagerstown to Big Pool — “Only it wasn’t called for”; that there was not any fare paid, and he had in his possession the pass reading on the front, “Foreman and ten men.” He was shown a paper which purported to he a copy of the front- of a pass issued in 1920, and said it was a correct copy of the front of the pass he held on the occasion that Mrs. Shatzer traveled from Hagerstown to' Big: Pool — 'reading, “One foreman and ten helpers, when accompanied hy letter signed hy W. P. Tottman, district plant superintendent, Western Union Telegraph Company. All stations.” He also said that the copy she traveled on to Baltimore had on the hack of it: “Western Maryland Railway Company. Leased and Operated Lines. Unless otherwise restricted on its face, this pass is good over all divisions of the Western Maryland Railway until December 31, 1920.

Conditions: * * * The person accepting and using this pass assumes all risk of accident or injury to person and all damage to or loss of property, whether caused by negligence of the company’s servants or otherwise. As a condition precedent to the issue and use of this pass, the recipient represents that lie or she is not prohibited by federal or state laws from receiving free transportation, and that this pass will be lawfully used. I accept the foregoing conditions and subscribe to the statements therein. “This pass will not be honored unless signed in ink or indelible pencil by the person or persons to whom issued.” ²⁸² It Was proven, that the copy offered in evidence was a correct one, .and such as used in 1920, and that, in accordance with their custom, the passes for 1920 were destroyed when those for the new year were issued. Harry Uhler testified that he lived in Hagerstown, and was foreman of the Western Union, and that he had one individual pass for “II.

Uhler and ten men,” and two other passes for a “foreman and ten men.” He said he did not go on the camp cars on the day of the accident, hut there was a man on there named Small, who had a pass for a “foreman and ten men.” He said that would include women employed by the Western Union. The plaintiff testified in answer to the question, “Did Mr. Uhler have a pass that covered your transportation ?” “Hot in the campi cars,” and when asked, “Did you travel on a pass at all ?” she said: “If I traveled on the Western Maryland train there was a pass provided for me, hut on the camp cars hauled by the Western Maryland engines there was no pass given to me.” 'She .said she had made several trips in the camp cars before the accident, that they were moved quite often to different places, and she was on the cars all the time when they were moved, and when asked, “Well, you were moving practically all the time from the time you were employed, from the 8th day of September until the time you were injured?” she said: “Well, the cars were moved occar sionally, hut not every day.” She said that, when those cars were moved they were always hauled by freight trains — on the rear end of the freight train. She was asked: “What arrangement was made about paying your fare when you made these different trips?” and replied: “Mr. Uhler said all who were traveling, in the cars, were traveling with the cam” There was a variance between the declaration and the evidence, as it is alleged that there was a collision, etc., which, under our former practice, Would have been important, but chapter 110- of the Acts of 1914, now section 9A of article 5 of 3rd vol. of Gode, prevents us from passing on it. The first prayer of the defendant refers to the pleadings, but it ²⁸³ does not state specifically the points wherein it is claimed that a variance existed.

Fulton Bg. Co. v. Stichel, 135 Md. 542 ; Rasst v. Morris, Ibid., 243, 256. This State is in line with the. great weight of authority in this country, that a common carrier of passengers cannot exempt itself from liability to a passenger for hire from its own negligence or that of its servants. In Amer.

Casualty Ins. Co.'s case, 82 Md. 535, 576 , Chief Judge McSherry adopted for this Court a summary of the conclusions reached by the Supreme Court of the United States in N. Y. Cent. R. R. Co. v. Lockwood, 17 Wall. 357 , which he thus stated: “First: That a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. Secondly: That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.

Thirdly: That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter.” In what is one of our latest decisions on the subject, Smith v. North. Cent. R. Co., 119 Md. 481, 483 , Judge Ubheb said: “The averments for each count of the declaration clearly place the plaintiff in the position of a gratuitous passenger at the time of the injury for which he sues. It is not. disputed that such a passenger is ordinarily entitled to the same care and pro-teetion on the part of the carrier as those who pay the regular fare.

This, principle is. settled in this State by the ease of Abell v. Western Md. R. R. Co., 63 Md. 433 , and has generally been adopted in other