Brocato v. United Rys. & Electric Co. of Baltimore

• Citation: 99 A. 792,129 Md. 572
• Decision Date: 09 January 1917
• Docket Number: 31.
• Parties: BROCATO v. UNITED RYS. & ELECTRIC CO. OF BALTIMORE.
• Court: Court of Appeals of Maryland

99 A. 792

129 Md. 572

BROCATO v. UNITED RYS. & ELECTRIC CO. OF BALTIMORE.

No. 31.

Court of Appeals of Maryland

January 9, 1917

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

Action by Josephine Brocato against the United Railways & Electric Company of Baltimore. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER, and STOCKBRIDGE, JJ.

James J. Lindsay, of Baltimore, for appellant.

Wallis Giffen, of Baltimore, for appellee.

PATTISON J.

The action in this case was brought by the appellant to recover for personal injuries resulting, as it is alleged, from a fall while riding in a car of the appellee. At the conclusion of the plaintiff's testimony a prayer was granted by the court, at the instance of the defendant, withdrawing the case from the jury for a want of legally sufficient evidence entitling the plaintiff to recover.

The plaintiff, Josephine Brocato with three others, Joseph Sabatina, Nick Difatta, and her son Samuel Brocato boarded a car of the defendant company at the corner of Garrison and Piedmont avenues. Joseph Sabatina was the first to board the car, the plaintiff immediately followed, then came Difatta and following him Samuel Brocato. When Sabatina was in the car and the plaintiff was in the act of passing through the door of the car, the car started, and she fell, as she says as the result of the "jerk" in starting, receiving the injuries complained of. As she expresses it, "Just as I put my first foot in (the car), the jerk of the car threw me." She was then asked:

"When you went to step from the platform inside of the car did you have hold of anything? A. No; just as I tried to get in the jerk threw me."

At this time Difatta was behind her on the platform of the car, and the son was in the act of boarding it. The conductor, as Sabatina testified, was at such time in the car. Sabatina when asked, "Did the car give a jerk that made you fall?" answered:

"No; because I was holding myself. Q. Did it make anybody else fall in the car? A. The others did not fall because the others did not get on. Q. Were there not other people on the back platform? A. I don't remember. Q. Did not Mr. Difatta and Mrs. Brocato's son get on after you did? A. Yes; he was behind my sister. Q. Did either of them fall? A. No, sir; it was only when she made her step over this platform that she fell."

Difatta testified that:

"Just as soon as he got on then the car jerked hard;" that at such time he was on the platform of the car, and the plaintiff in front of him, and "just as she caught her foot on the step that leads into the car from the platform, the car gave a jerk, and she fell down and shoved me back."

This is, in substance, all the testimony in relation to the falling of the plaintiff and conduct of the company in the operation of its car at such time.

If there was any negligence on the part of the company, it must be found in the starting of the car before the plaintiff was in a place of safety, or in the defendant's negligent operation of the car resulting in the "jerk" complained of.

It is true the plaintiff had not entered the car, that is, had not passed through the door of the car, and was not seated before the car was started, but was standing on the platform of the car before the open door, her foot raised in the act of stepping into the car. She, at such time, was not supporting herself in any way, and while in this position she fell, as she says, from the motion of the car in starting. It can hardly be said that these facts unassociated with any unusual circumstances or conditions, show negligence on the part of the company in starting the car while the plaintiff was still upon the platform and before she was seated. In Martin v. Boston E. R. W. Co., 216 Mass. 361, 103 N.E. 828, 49 L. R. A. (N. S.) 753, Ann. Cas. 1915A, 830, as in the case before us, the only question in controversy was whether the trial judge should have ruled as a matter of law that the conductor was not negligent as to the time of starting the car, instead of leaving that issue to the jury as a question of fact. In that case the plaintiff's married daughter and the latter's little boy boarded the rear vestibule and entered the car. The plaintiff followed as far as the vestibule, with a suit case, but was delayed from getting into the body of the car by an intervening woman passenger. Leaving her suit case in the vestibule, the plaintiff started to enter the car, the floor of which was one step higher...