Central Ry. Co. v. Peacock

• Decision Date: 13 June 1888
• Citation: 14 A. 709,69 Md. 257
• Parties: CENTRAL RY. CO. v. PEACOCK.
• Court: Maryland Court of Appeals

14 A. 709

69 Md. 257

CENTRAL RY. CO. v. PEACOCK.

Court of Appeals of Maryland

June 13, 1888

Appeal from Baltimore city court.

Action by James N. Peacock against the Central Railway Company for personal injuries sustained from an assault committed by the driver of one of defendant's street cars. Plaintiff had judgment, and defendant appealed.

Argued before ALVEY, C.J., and MILLER, STONE, BRYAN, ROBINSON MCSHERRY, and IRVING, JJ.

T W. Blakistone and George Blakistone, for appellant.

Joseph Pollard and H. W. Latane, for appellee.

IRVING J.

This is a suit for personal injuries received by the appellee at the hands of the conductor and driver of the appellant's street car at a time when the appellee contends he was a passenger, and as such entitled to the protection of the appellant from the violence of its employe. The questions in the case are, was there such evidence in the case of the appellee being a passenger of appellant when the assault was committed, and of the conductor acting in the line of his duty and scope of his employment, as justified the court in refusing the prayer of appellant that there was no legally sufficient evidence in the cause to enable the jury to find for the plaintiff? The evidence shows that the appellee entered the appellant's car at the corner of Broadway and Lancaster streets, intending to ride to the corner of Preston and North streets, near which the appellee lived, and to which point he was accustomed to ride on the defendant's cars, and had been almost daily in the habit of riding for several years in returning from his work. On this occasion, as the car turned into Preston street, several ladies got into the car; and, as it was full, the appellee arose and gave his seat to a lady, and stood in front of the seat which he had occupied. While he was so standing, the driver, who was also conductor and the only officer of the car, opened the door, and said to appellee: "Captain, I want you to sit down." The appellee replied: "I have given my seat to this lady, and there is no other. When I can get a seat, I will sit down." To this the driver replied with profane and abusive language, and told the plaintiff (the appellee) that if he would get off the car he would fight him. To this the appellee simply replied: "When we get to the office of the company, I will report you." The office of the company, according to the proof, was at the stables, where the car stopped for a change of horses, which the appellee knew. It was on the south side of Preston street, west of Greenmount avenue, six blocks west of Caroline street, and about one block east of South street. The entrance to the office was on Barclay street. Just after the car crossed Greenmount avenue, and at its west side, it was stopped for some ladies to get off. The appellee also got off at that point, intending, as he said, to go to the office of the company, (which was not yet reached,) and report the driver while the horses were being changed, and then to resume his seat in the car. The car started on again, and the driver, seeing the appellee going towards the office, again stopped the car before it had quite reached the point for stopping to change the horses, and jumped from the car from the front platform, with the iron brake belonging to the car in his hand, and went straight across the street, and intercepted the plaintiff on the public sidewalk at the mouth of an alley which runs south from Preston street, and exclaiming to the appellee: "God damn you! I'll give you something to report,"--struck him twice with the brake. The first blow felled him to his knees, when the conductor struck him again, and was prevented from giving a third blow by being seized by a police officer. Both blows were on the appellee's head, and he was considerably hurt.

Appellant admits that, if the appellee was a passenger at the time, the company was bound to protect him from injury from its employes, or the ill usage of strangers in the vehicle; but the appellant contends that, not only had the appellee ceased to be a passenger, but that the driver, by stopping the car and leaving the horses standing in the street, and proceeding to the sidewalk to assault the appellee, violated his duty and stepped aside from the line and scope of his employment, and that, consequently, the appellant was not answerable for his conduct. Judge Cooley, in his work on Torts, (page 535,) says: "The liability of the master for intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master's business. It does not arise when the servant has stepped aside from his employment to commit a tort which the master neither in fact directed, nor could be supposed, from the nature of the appointment, to have authorized or expected the servant to do." He illustrates his meaning by this statement: "So if the conductor of a train of cars leaves his train to beat a personal enemy, or from mere wantonness to inflict an injury, the difference between that and...