Baltimore & O. R. Co. v. Kane
| Decision Date | 12 April 1888 |
| Citation | 13 A. 387,69 Md. 11 |
| Parties | BALTIMORE & O. R. CO. v. KANE ET UX. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Baltimore county.
John K. Cowen, W. Irvine Cross, and J. I Yellott, for appellant.
John J. Wade, Wm. A. Wade, and D. G McIntosh, for appellees.
This was an action brought by husband and wife for injuries to the wife alleged to have been sustained by reason of the misconduct and negligence of the employes of the appellant. The appellant contends that, upon the testimony of the appellees and their witnesses, such case was not made as to justify its submission to a jury. The consideration of this ground of complaint involves an examination into, and analysis of, the facts, as well as the incidental discussion of some questions of admissibility of some of the facts given in evidence. The conceded facts are that the appellant on the occasion of the injuries received by the appellee Mrs. Kane, was running, on a Sabbath day, an excursion train on the Curtis-Creek branch of its road; and that the plaintiffs, the appellees, were regular passengers on that day, not as excursioners, though they had excursion tickets, but as passengers to a point where they wished to visit a sick friend. The injuries sued for were received in an effort to board the train in the evening, for the purpose of returning to Baltimore city. About the circumstances attending this effort to board the train there is some conflict of evidence, but the correctness of the court's ruling in sending the case to the jury must depend on the testimony of the plaintiffs. There is no substantial disagreement as to description of the locus in quo and the premises adjoining. There was a platform, at which a train of cars was standing and filled, ready for return to Baltimore, when the plaintiffs left the platform, and went to the place where the effort to get on another train was made which resulted in the accident. At the platform was a shed for the shelter of passengers, and where these plaintiffs were when they allege they were told by a railroad official to go down and take their train, which was at a point some distance away from the platform. Steps descended from the platform to a plank-walk along-side the railroad track, and a few inches higher than it, which plank-walk led to the bath-house of this resort. While the train which was filled stood at the platform making ready for departure, another train from Baltimore came down, and passed by the standing train and the platform, and ran down towards the pier. The engine had to reverse, by use of a Y, to return to Baltimore. Before this train came, the plaintiffs, who had been unable to get seats on the train standing at the platform, were spoken to by a person wearing the uniform of the company, (which uniform Mrs. Kane said she knew,) who said to them that another train "will be along in ten minutes, we have telegraphed for an extra train," and invited them into the waiting-shed. When this promised train came by, the same individual, with the uniform of the company, who had invited them into the waiting-shed, came and said to them: The crowd was all moving in the direction of this train, and, being so instructed by this person, they went with many others down the steps to the plank-walk, and down it to the point where the attempt to board the train was made. When the train stopped, plaintiff's husband and child got on. The train again moved towards the pier, and stopped, (as plaintiff and her witnesses say,) when she, assisted by a man named Stout, tried to mount the steps. Stout says he had his hand under her elbow. She put her foot on the step, and the car gave a jerk, and she was thrown off, and, falling under the cars, she was seriously injured, one arm and the fingers of the other hand being cut off. The step of the cars, she says, was about eighteen inches from the plank-walk; Mr. Stout says he thinks about two feet. Passengers were crowding in all along this plank-walk, and the plaintiffs and their witnesses say they heard no direction not to board the train there, or to desist, and saw no effort made to prevent its being done. Mr. Stout had immediately before assisted two ladies successfully in boarding the train there. After doing so, the train moved about the length of a car, and again came to full stop, when he proceeded to assist Mrs. Kane. Although there was evidence from the defendants that the train never came to a stop, and was in actual motion when the effort to board the train was made, for the purposes of the ruling whether there was any evidence to take the case to the jury we cannot consider that contradiction of the plaintiffs and their witnesses.
There was evidence tending to show that on all such occasions passengers were in the habit of boarding the train, and were allowed to do so, without objection from anybody, all along this plank-walk, whenever the train might happen to stop.
The appellants insist that, having provided a platform where the train regularly stopped, the plaintiffs had no right to get on at any other point, and that the attempt to do so was, in law, contributory negligence. Reliance for this contention is placed upon Thomp. Carr. 129, where it is stated, and authorities for it are cited, that, when a safe and convenient means of getting off and on the cars has been provided, if a passenger uses a way of his own choice he will be responsible for consequences. But clearly this means that when the railroad recognizes that as the only place where passengers will be received or discharged, and has so ordered; for the same authority in the same connection says that "wherever a railroad company is in the habit of receiving passengers," whether at the station, or some point outside, passengers have a right to assume that such parts of the premises are in "safe condition for such purpose." Of course the platform provided by the company is the most suitable place for ingress and egress, but it does not follow that, if the company's officers see a person getting on or off a train elsewhere than at the platform, his effort may be willfully or negligently disregarded to his injury. Here the passengers were allowed to enter from this board-walk. There is evidence, at any rate, that way. The doors were not closed against them, and, so far as the plaintiff's evidence goes, there was no inhibition or effort to prevent it. Witnesses say that passengers entered the cars from this plank-walk on all excursion occasions. In McDonald v. Railroad Co., 26 Iowa, 139, Judge DILLON, speaking for the court, says: "If the train had arrived, and was on the track, the car doors open, and if, as is frequently, if not generally, the case, the passengers are allowed, or at least not forbidden, to enter the cars...
To continue reading
Request your trial