Dilley v. Baltimore Transit Co.

• Decision Date: 01 November 1944
• Docket Number: 15.
• Parties: DILLEY v. BALTIMORE TRANSIT CO.
• Court: Maryland Court of Appeals

39 A.2d 469

183 Md. 557

DILLEY v. BALTIMORE TRANSIT CO.

No. 15.

Court of Appeals of Maryland

November 1, 1944

Appeal from Superior Court of Baltimore City; Edwin T. Dickerson Judge.

Action by Alfred James Dilley against the Baltimore Transit Company for injuries sustained in boarding defendant's streetcar. Judgment for defendant and plaintiff appeals.

Reversed and new trial awarded.

A Frederick Taylor, of Baltimore (Lawrence E. Williams and Allers & Cochran, all of Baltimore, on the brief), for appellant.

Philip S. Ball and Wallis Giffen, both of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, CAPPER, and HENDERSON, JJ.

BAILEY Judge.

This is an appeal by the plaintiff from a judgment for costs in favor of the defendant, entered after the trial court had granted prayers asking for a directed verdict and a motion for a directed verdict, all submitted by the defendant at the conclusion of the plaintiff's testimony. The prayers and the motion were granted on the theory that there was no legally sufficient evidence of negligence on the part of the defendant which was the proximate cause of the accident complained of; that the plaintiff was guilty of negligence on his part directly contributing to the accident; and that the accident was due to an independent, intervening agency which was the direct and proximate cause thereof.

On March 27, 1943, the plaintiff, a young man who for eight months had been employed as a welder at the Bethlehem-Fairfield Shipyard, quit work at 7 o'clock A.M. and went directly to the passenger terminal maintained by the defendant in order that he might go home on one of its street cars. This passenger terminal or prepayment station is a fenced-in area alongside a single street car track. It is referred to in the testimony as the 'bullpen.' It is entered through four turnstiles located at the end of the enclosure nearest the shipyard. The fare is collected here and then the passenger remains in the enclosure until the car or cars are placed on the track. The enclosure is approximately forty feet wide and three hundred feet long. On its side next to the track there are twelve sliding gates hung on overhead rollers. The gates vary in width from three feet, nine inches to eight feet, eight inches. The cars are placed on the track with the entrances to the cars opposite the gates. On the morning of the accident the plaintiff paid his fare and entered the enclosure with the witnesses, Tarr and Dittrich. At that time there were about one hundred men in the enclosure. The plaintiff was in about the center of the crowd, ten feet back from one of the gates. Two cars were placed on the track. The distance from the gate to the corresponding entrance to the car was two feet. The gates are made of board and slide along the overhead tracks. The defendant has an employee at each gate, who opens it when the cars are in place and then stands back about five feet from the opening. The plaintiff, Dilley, testified that the crowd, then numbering about one hundred and seventy-five, started to go through the gates; that it was a rowdy crowd, as always; that the gate through which he passed, was about four feet wide; that he was entering the rear door of one of the cars; that he was pushed along with the crowd; that he made the first step with his right foot; that 'trying to get to the next step, that is, into the street car, the crowd shoved, which threw me against some fellow that was beside me and wedged me with my right arm against the street car like that (indicating), and I was fast and couldn't get out'; that the skin was torn at the inner surface of the right wrist and that the injured hand gradually grew worse until it was necessary for two operations to be performed on it at Johns Hopkins Hospital.

The witness, Tarr, testified that he did not see the accident, but that 'when we went into the bullpen the gates leading to the cars were closed, and when the gates were opened the crowd made a rush to get on the street car and those who were in the crowd were shoved right along with it and could not get out of it if they went in'. When questioned as to the behavior of the crowd, he stated that 'some mornings you go out there to get on the street car and they were fairly calm, and then other mornings you got out there to get on the street car, well, you wasn't sure whether you were going to make it or not' and that, when you came in with the bulk of the crowd, 'then you got shoved all over the place.' The witness, Dittrich, did not see the accident, but he testified as to the behavior of the crowd at the terminal as follows: 'But when you got in the bullpen some days they was very peaceful and some days they just pushed and shoved. Sometimes you could get on the street car without being shoved around, and other days you could not'; 'if you got in the crowed you were always pushed around'; and 'they got there early in the morning and they always want to hurry up and get a seat.'

The witness, Cavanaugh, who was employed at the shipyard and had been using the facilities of the defendant since March, 1942, testified as to the system of loading passengers at the Bethlehem-Fairfield terminal, which was as detailed above, and then stated: 'I have waited there a half hour to try and let the crowd get out so I wouldn't get banged up, and then I would sometimes have luck, and sometimes I would not, but generally you had to take your chance getting on.'

Other witnesses testified that for a period of at least a year prior to the accident the defendant had made no changes in the facilities at this terminal, except to add two turnstiles and to enlarge the enclosure. The plaintiff also testified that during the eight months that he used the facilities he saw a number of men hurt pushing and shoving.

We feel that this testimony was sufficient to require the submission of the case to the jury so that it might pass upon the questions of primary and contributory negligence. As soon as the plaintiff had paid his fare at the turnstile and entered the enclosure he became a passenger and was entitled to the rights and protection of a passenger. Baltimore & O. R. Co. v. State, to use of Mahone, 63 Md. 135; Pennsylvania R. Co. v. Hoover, 142 Md. 251, 120 A. 526. This enclosure was maintained and operated by the defendant for the sole purpose of facilitating the loading of passengers at it Bethlehem-Fairfield terminal. The defendant, as a common carrier of passengers, was required to use the utmost degree of care, skill and diligence in everything that concerns its passengers' safety.

This duty was not limited to the mere transportation of them. It extended further and required the defendant to provide safe and convenient modes of access to its trains. Philadelphia, W. & B. R. Co. v. Anderson, 72 Md 519, 20 A. 2, 8 L.R.A. 673, 20 Am.St.Rep. 483. The evidence in this case does not disclose that there was any fault in the plan or construction of the enclosure upon which the negligence of the defendant could be predicated. But the defendant's duty to its passengers did not end there. It knew or should have known that, for many months prior to the date of the accident, there was a pushing and jostling crowd leaving the enclosure and passing over the two feet from the gates to the steps of the standing cars. It provided a guard at...