Baltimore City Pass. Ry. Co. v. Nugent
| Decision Date | 17 November 1897 |
| Citation | 38 A. 779,86 Md. 349 |
| Parties | BALTIMORE CITY PASS. RY. CO. v. NUGENT. |
| Court | Maryland Court of Appeals |
Appeal from court of common pleas.
Action by T. Harry Nugent against the Baltimore City Passenger Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.
A. W Machen and Wm. S. Bryan, Jr., for appellant. Thomas C Ruddell, Sydney Hall, and James W. Bristor, for appellee.
Argued before McSHERRY, C.J., and BRISCOE, BRYAN, BOYD, FOWLER, and ROBERTS, JJ.
The following was defendant's first prayer: "The defendant prays the court to instruct the jury that the law does not make a street-railway company an insurer of the safety of its passengers, or require it to adopt every possible contrivance looking to their safety that human ingenuity can suggest; and that if they find from the evidence that the defendant had, in reference to both the erection and maintenance of the trolley wire and car mentioned in the evidence, used every reasonable safeguard which the nature of its business admitted, it has performed its duty in the premises, and the verdict must be for the defendant."
This is an action to recover damages for a personal injury. The facts, so far as they need be recited to present the questions of law which are brought up by the second and third bills of exception, are few and simple, and will be stated in a moment. The ruling complained of in the first bill of exceptions has reference to a question of practice, and though arising earliest on the record, will be considered and disposed of last, because it does not pertain to the merits of the controversy.
The appellant is a corporation owning and operating a street railway in the city of Baltimore. The motive power used to propel its cars is electricity, which is applied by the overhead trolley system. On the day that the injury complained of happened, the appellee boarded one of the company's cars, taking a seat on the inside, but afterwards, owing probably to the crowded condition of the car, going to and standing on the rear platform. Shortly thereafter the trolley wire broke some few inches from a brass sleeve which spliced together the ends of the separate wires that, when united, formed the continuous trolley wire. That part of the broken wire which was above the car, and which stretched in the direction that the car was going, was carried on the trolley pole as the car proceeded; and, as the car moved forward, the wire, charged with the electric current, was paid out over the trolley wheel, and the severed end fell upon the roof of the car, and thence over its rear edge, and came in contact with the appellee, who was thrown by the shock, or who, receiving a shock therefrom, jumped to the ground, and was injured. The period of time intervening between the breaking of the wire and the injury to the appellee was only a few seconds. The record fails to show that the car could have been stopped in a shorter space of time than it was, or that the employés in charge of it could have done anything which they omitted to do to avoid the injury. There was evidence adduced by the appellant tending to prove that the wire broke from a latent defect that no test or inspection could have discovered, and that no human foresight could have guarded against; that the wire had been subjected to all the tests known to science, if not before it was sent from the factory where it was made, at least before it was put in place; and that. since it had been in use. it had been regularly and carefully inspected. It was further shown that the most skilled contractors had constructed the line, and that the best materials which could be procured had been used. There was also sufficient evidence before the jury from which they well might have found, if they believed that evidence to be true, that the wire broke from no fault or negligence of the company or its employés; and they might likewise have concluded--for the testimony, if credited, warranted the conclusion--that the highest degree of care and caution known to science had been used by the company in providing the best materials, appliances, and workmanship in the building of its trolley system. The declaration contains a single count. It avers that a certain wire, the property of the defendant, and which it was its duty to keep in repair, was, through the carelessness and negligence of the company and its servants, out of repair, and, in consequence, broke, and fell upon the plaintiff, who at that time was using due care and caution. Under this declaration, and upon this proof, each of the parties presented two prayers for instructions to the jury. The court of common pleas granted the plaintiff's second prayer, modified his first, and, as modified, granted it; rejected the defendant's second, modified its first, and, as modified, granted it. To this action of the court the third bill of exceptions was taken.
The plaintiff's first prayer needs no discussion. The objection made to it in the court below was that it left to the jury a question of law, in not defining the degree of care required of the defendant. No point is suggested in the brief against this prayer, and we think the one raised below is not tenable. It defined the degree of care and diligence exacted of the defendant as the "highest degree of care and diligence practicable under the circumstances." This, as we shall see later on, correctly described the extent of the duty owed by the carrier to the plaintiff.
The plaintiff's second prayer should not have been granted. There was a special exception interposed to it in the trial court, upon the ground that there was no evidence to support one of its hypotheses. This objection ought to have been sustained. The prayer instructed the jury that if they should find from the evidence that the plaintiff, while a passenger on the defendant's car, and while using due care, was injured by contact with a broken trolley wire, and that the broken wire was dragged up on the back platform, and against the plaintiff, by the momentum of the car, then their verdict would have to be for the plaintiff, " unless they shall further find that the defendant's employés could not, by the exercise of reasonable care, have prevented the trolley wire from being dragged up on the platform." Now, there is not a particle of evidence in the record to support the hypothesis we have put in italics, and it was consequently error to have submitted such an hypothesis to the jury. We may remark, in passing, that the theory of the prayer is directly at variance with the declaration. It does not, it is true, refer to the pleadings, and would not therefore, on the ground of variance, be open to criticism; but it shifts the right to recover from the one alleged in the narr. to a totally different ground. If the cause of the injury was, as charged in the declaration, the bad condition or disrepair of the wire, and this bad condition or disrepair was really due to the negligence of the defendant, and injury ensued as a consequence, then the cause of action declared on was proved; and it made and could make no possible difference whether the employés in charge of the car could or could not have prevented the wire from being dragged up on the platform after it had, in consequence of prior negligence, broken and fallen on the car. Even if the employés could not by the utmost care have prevented the wire from being so dragged up on the platform, the right of action would still have been perfect if the efficient cause of the injury was in reality the antecedent imputed negligence of the defendant in permitting the wire to be out of repair.
The substantial error of law into which the learned judge below inadvertently fell was in refusing to grant the defendant's second prayer. By that prayer the defendant sought an instruction to the effect that if the jury should find that the accident to the plaintiff was caused "solely by a hidden or latent defect, not apparent to the eye, in the trolley wire," and which "the defendant could not have discovered or detected by any reasonable examination," and that if the company employed proper and suitable contractors to erect the wire and overhead construction at the place of the accident, and if the contractors used suitable and proper material and a proper and skillful method of overhead construction "then the defendant has performed its duty to the passenger in this regard, and the verdict must be for the defendant, even though the jury further find that the plaintiff, without fault on his part, did receive injuries by reason of the breaking and falling of said trolley wire. A carrier of passengers is not an insurer of their safety. This is the settled law. Such a carrier is only bound to employ the utmost care and diligence which human foresight can use. Turnpike Co. v. Case, 80 Md. 45, 30 A. 571; State v. Baltimore & O. R. Co., 24 Md. 102. This is the limit and the measure of the duty which he owes to the passenger. His failure or omission to discharge that duty is an act of negligence, and, if injury results from that negligence, an action will lie. It is apparent, then, that all actions of the kind we are now dealing with, to be maintained, must...
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