Baltimore & O. R. Co. v. Barger
| Decision Date | 14 November 1894 |
| Citation | 30 A. 560,80 Md. 23 |
| Parties | BALTIMORE & O. R. CO. v. BARGER. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Washington county.
Action by Theophilus Barger against the Baltimore & Ohio Railroad Company for assault. Judgment for plaintiff, and defendant appeals. Affirmed.
Argued before ROBINSON, C.J., and BRYAN, McSHERRY, FOWLER, PAGE ROBERTS, and BOYD, JJ.
John K Cowen, J. C. Lane, J. S. Newman, and H. H. Keedy, Jr., for appellant.
F. J Nelson and L. D. Syester, for appellee.
This was an action brought by Theophilus Barger, the appellee against the railroad company, for an alleged assault upon him by the conductor in charge of the train on which the appellee was a passenger. The evidence was conflicting as to the conduct of Barger. He testified that he was riding on the step of the rear car, as the train was crowded; that, when the conductor came out on the platform, he handed him his ticket, and remarked to the conductor, "You did not get all your tickets to-night"; that the conductor accused him of applying an opprobrious epithet to him, which he denied, and the conductor struck him with his fist, and then with his lantern. The conductor testified that he collected Barger's ticket, who then said to him, "You thieving s___ of a b___, you had better get them all, or I'll report you." He acknowledged that he then struck Barger with his fist, and claimed that the latter grabbed him by the collar, and he (the conductor) then struck him with his lantern, just as the train was leaving Knoxville. It is admitted that the difficulty occurred between the points embraced in appellee's ticket, which was good from Brunswick to Weverton. The conductor further testified that, when they reached Weverton, he said, "If you want any more out of me, I will get down with you"; and Barger replied, "I have got you just where I want you, and will sue the company." The witness was then asked by the defendant's attorney "if, before this, on some other occasion, and on a different day, Barger had used abusive and profane language to him on the train, and made threats against the witness." That was objected to, and the court refused to let the question be asked or answered. This ruling of the court is brought here for review by the first bill of exceptions. Without deciding how far, if at all, that character of testimony would be admissible in a case of this kind, if properly presented, it is manifest that the evidence disclosed in the record is too remote and indefinite. It was not stated how long before, on what occasion, or what day it occurred, although it is affirmatively shown that it was on a day different from that of the assault. The ruling of the court was therefore clearly right. If any authority be necessary, the case of Gaither v. Blowers, 11 Md. 536, is in point.
At the conclusion of the testimony, the plaintiff offered two and the defendant eight prayers. Both of the former were granted and all of the defendant's were rejected, with the exception of the seventh. The rulings of the court on these prayers are presented by the second bill of exceptions. The first, third, fourth, and eighth prayers of the defendant deny the right of the plaintiff to recover at all, if the jury believed the facts stated in them. The first is, in substance, that if the jury believed the plaintiff used foul and abusive language to the conductor, which caused or provoked the assault complained of, and that, in making said assault, the conductor was not acting for the defendant and within the scope of his duties as conductor, but was carrying out a personal purpose and feeling, the defendant was not liable for such act of the conductor. The theory of that prayer is that the plaintiff had by his conduct forfeited his right as a passenger, and the act of the conductor was merely a personal matter between him and the plaintiff, provoked by the latter, independent of and freed from the relations that had existed between the plaintiff and defendant as passenger and carrier. To such a doctrine we cannot subscribe, under the circumstances of this case. There may be, and doubtless are, cases in which the conduct of a passenger towards the employé of a railroad company was such that the company would not be liable for the act of the employé. A conductor, for example, would be justified, in the defense of his own person or the property of the company in his charge, in using such force as would be necessary for their protection against a passenger or any one else, without rendering the company liable. Because he occupies the position of a conductor, and his assailant that of a passenger, does not deprive the former of the right of defending himself, or the property in his charge so far as it becomes necessary. But that is not this case. The plaintiff was at the time of the assault a passenger on the train which was in charge of this conductor, who was the agent of the company to see, as far as he reasonably could, that the plaintiff and other passengers were properly treated, and carried to their respective points of destination. If the plaintiff persisted in misbehaving on the train, either by the use of foul and abusive language towards the conductor, or in any other way calculated to frighten or materially interfere with the comfort and safety of the other passengers, after being admonished by the conductor, the latter would have been justified in ejecting him from the train. The remedy in such case would be to eject the unruly passenger, not to assault him, and then let his employer escape all liability because he (the conductor) was carrying out a "personal purpose and feeling," as stated in the prayer. A conductor of a train, doubtless, has his patience and forbearance severely tested at times; but he must not settle his own personal difficulties with passengers, while they are such, any more than he should permit others to do so when he could avoid it. If he 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. If that be a correct statement of the law, as it undoubtedly is, as settled by the case of Steamboat Co. v. Brockett, 121 U.S. 645, 7 S.Ct. 1039, and numerous other authorities, then, a fortiori, the company must be liable if the conductor makes an assault on one who is still a passenger, as Barger was. In the case of Railway Co. v. Peacock, 69 Md. 257, 14 A. 709, cited by the appellant, the plaintiff had left the car, and had ceased to be a passenger, and hence, when the assault was made, the conductor "stepped aside from the line and scope of his employment," and therefore the company was not liable. The court indicated very clearly, however, that if the assault had been made while the plaintiff was a passenger, and the driver (who was also acting as conductor) was still executing "the contract of transportation," the company would have been responsible. To hold otherwise...
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