Baltimore & Y. Turnpike Road v. Cason

• Decision Date: 19 June 1890
• Citation: Baltimore & Y. Turnpike Road v. Cason, 72 Md. 377, 20 A. 113 (Md. 1890)
• Parties: PRESIDENT, ETC., BALTIMORE & Y. TURNPIKE ROAD v. CASON.
• Court: Maryland Court of Appeals

20 A. 113

72 Md. 377

PRESIDENT, ETC., BALTIMORE & Y. TURNPIKE ROAD v. CASON.

Court of Appeals of Maryland

June 19, 1890

Appeal from Baltimore city court.

Argued before ALVEY, C.J., and ROBINSON, FOWLER, BRISCOE, and MCSHERRY, JJ.

Arthur W. Machen and Frank Gosnell, for appellants.

William S. Bryan and John T. Eusor, for appellee.

MCSHERRY J.

This is an action to recover damages for a personal injury. The appellant is a corporation owning and operating a street passenger railway upon which cars drawn by horses are run from Holliday street, in Baltimore city, to Waverly, in Baltimore county. The appellee, in January, 1884, while riding on the front platform of one of the company's cars, fell or slipped off, and his foot was crushed by the near wheel of the car passing over it. He instituted this suit to recover for that injury. At the trial in the Baltimore city court the appellant asked the court to withdraw the case from the jury upon the grounds-- First, because there was no legally sufficient evidence that the appellant had been guilty of negligence and, second, because the appellee had by his own negligence directly contributed to the happening of the injury complained of. Both of these prayers were refused, and a verdict and judgment against the company have occasioned this appeal.

There is not the lightest evidence in the record that the platform or any other part of the car, was out of repair. The car did not leave the track. It did not come into collision with anything, and neither the conductor nor the driver was negligent or careless in any particular. The appellee, after stating that he got on the front platform, and made no effort to go inside the car, describes the accident in these words: "When the conductor, Mr. Anderson, came out after his fare, I had hold of the iron railing with my hand. When he came out, I let go, to put my hand in my pocket to get the fare to pay the conductor. About that time, before I could recover my hold again, my foot slipped, and I fell with the motion of the car. I thought the car was going up and down,--a kind of rough motion." J. Henning Jones, who got on the car with the appellee, and was also riding on the front platform, testifying for the plaintiff, said: "I could not tell you how he fell. I never knew he was off until I felt a jolt; and somebody says 'A man fell off, and the car ran over him.' I noticed no different motion or movement of the car until I felt the jolt; that appeared to me as if the car was to run over a block of wood, or some obstruction of that kind, on the track, which occurs every day. On this occasion, we discovered very quickly that it had run over his foot." J. C. Wolf was also riding on the front platform, but did not see the plaintiff fall. These three passengers and the driver were the only persons on the front platform. It was further proved by George A. Galloway that he had formerly been a conductor in the company's service. He was then asked: "State what, to the best of your recollection, was the condition of the road from Lanvale street to Boundary avenue in January, 1884,--about that time." He replied: "I don't know that I can remember positively about January, but about that time, or a short time previous, the sleepers running lengthwise on the track,--they didn't have cross-ties in the city; the irons laid on the sleepers. It used to be so two or three years ago. I don't know whether they changed it since. But they didn't have cross-ties, but the track laid on the sleepers, laid lengthwise as the car was running, and these sleepers had rolled away to a great extent just along there; and the cars would wave up and down just like a wave, as the track sunk and rose. Question. Bobbed up and down? Answer. Yes, sir; about that time,--just about that time." It was proved by the defendant that in the car which caused the injury, and in every other car belonging to the company, there were, and had always been, two notices posted, printed in large type, headed "Warning," and forbidding passengers to stand or sit on the front platform; that the plaintiff had been in the habit of riding in these cars for some years; and that there was ample standing room inside the car when the accident happened. The plaintiff testified that, though he could read, he never had read these notices.

We have set forth pretty fully the testimony bearing on the two prayers alluded to. There ought to be, and there really is no difficulty about the law applicable to the facts just set forth. There must be legally sufficient evidence to prove negligence, and to connect that negligence with the injury, before the court is justified in allowing a case to go to the jury. Speculation or mere conjecture will not do. There are cases where the proof of the injury has, under certain circumstances, raised a presumption of negligence on the part of the carrier. As said by this court in Railroad Co. v. State, 63 Md. 144: "If one is injured by the breaking down or upsetting of the vehicle used in the transportation, or by the colliding of one train with another, or by the train running off the track, from some defect in the road-bed in these and in other like cases, the evidentiary facts in themselves create a presumption of negligence on the part of the carrier." The accident in the case at bar, not being attributable to any cause of the kind just mentioned, no presumption of negligence can arise from the mere fact of an injury. What, then, caused the accident? Assuming that the testimony of Galloway, who was...