Mass Transit Administration v. Miller

• Decision Date: 07 March 1974
• Docket Number: No. 183,183
• Citation: 315 A.2d 772,271 Md. 256
• Parties: MASS TRANSIT ADMINISTRATION v. Willoris MILLER.
• Court: Maryland Court of Appeals

Page 256

271 Md. 256

315 A.2d 772

MASS TRANSIT ADMINISTRATION v. Willoris MILLER.

No. 183.

Court of Appeals of Maryland.

March 7, 1974.

Hamilton O'Dunne, Baltimore (Patrick A. O'Doherty, Baltimore, on the brief), for appellant.

Samuel Blibaum, Baltimore (Samuel S. Schenker, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and BARNES, ^* SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

LEVINE, Judge.

In this appeal, Mass Transit Administration (MTA) seeks to overturn a judgment of the Court of Special Appeals. Appellee, Willoris Miller, had sued MTA in the Superior Court of Baltimore City for damages for personal injury alleged to have been sustained while boarding one of MTA's buses on May 25, 1971. At the conclusion of all the evidence, the trial court granted MTA's motion for a directed verdict. On appeal, the Court of Special Appeals reversed that decision, Miller v. Mass Transit Adm., 18 Md.App. 220, 306 A.2d 261 (1973). We granted certiorari to review the question whether the evidence in the trial court was legally sufficient to have permitted the jury to decide the negligence vel non of the bus operator. For reasons that follow, we conclude the evidence of negligence was sufficient to require submission of that issue to the jury.

The evidence presented by appellant on the issue of negligence was neither extensive nor complex, as this excerpt from her testimony illustrates:

'Q. All right. Would you tell us what happened at that point.

'A. When the bus came, I had a bag in my left hand, in my arms, and I had a shopping bag in my right hand, along with my pocketbook and my bus fare. When the bus stopped, I went to put my left foot on the bottom step and my right foot on the second step when the bus taken off, which caused-

'Q. Would you describe how the bus took off.

'A. When the bus taken off, the man was rough like.

'Q. Let me stop you. What do you mean by 'rough like'?

'A. He taken off like he was in a hurry like.

'Q. When he took off rough, like you indicated, what happened?

'A. Well, I lost my posture and I fell down, . . ..'

In reversing the trial judge's decision that the evidence of negligence was insufficient to warrant the submission of that issue to the jury, the Court of Special Appeals held:

'We are persuaded that a passenger mounting the stairs to a public conveyance who has not yet placed both feet upon the floor of an area sufficiently large to carry passengers in safety, has not, as a matter of law, reached a position of safety so as to absolve the carrier of any further responsibility to keep the vehicle stationary. . . .

'Accordingly, we believe that the evidence that the plaintiff was on the stairs of the bus and had not yet reached the floor when the bus started was sufficient to submit to the jury the question of whether the (bus) was started before she had a reasonable opportunity to reach a place of safety. . . .' 18 Md.App. at 229-230, 306 A.2d at 266.

In urging reversal, MTA contends that the trial judge was correct in ruling that appellant was in a position of safety when the operator started the bus; and therefore, to recover, that it was imcumbent upon her to prove that the manner of starting the bus was unusual or extraordinary. Hence, MTA argues, she was barred from recovery as a matter of law, since she failed to prove anything but an ordinary movement.

In considering this argument, we are mindful of two well-settled principles that bear upon this case, one procedural and the other substantive. Recently, in Curley v. General Valet Service, 270 Md. 248, 311 A.2d 231 (1973), Chief Judge Murphy said for the Court:

'. . . (O)rdinarily (negligence) is a question of fact to be determined by the jury; that before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn; that 'Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury'; that the rule requires submission of the case to the jury if there be any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury; . . ..' 270 Md. at 264, 311 A.2d at 239.

The second principle relates to MTA's status as a common carrier. A common carrier is not an insurer of the safety of its passengers, but is bound to employ the highest degree of care for their safety, consistent with the nature of the undertaking. It owes its passengers a duty to deliver them to their destination as expeditiously as possible, consistent with safety. St. Michelle v. Catania, 252 Md. 647, 651, 250 A.2d 874 (1969); Ragonese v. Hilferty, 231 Md. 520, 526, 191 A.2d 422 (1963); Retkowsky v. Balto. Transit Co., 222 Md. 433, 440, 160 A.2d 791 (1960); Smith v. Baltimore Transit Co., 214 Md. 560, 568, 136 A.2d 386 (1957).

As the Court of Special Appeals held, and appellee tacitly concedes, the resolution of this case does not turn on whether her fall was caused by an unusual or extraordinary movement of the bus, see e. g., Retkowsky v. Balto. Transit Co., supra, 222 Md. at 440, 160 A.2d 791; Smith v. Baltimore Transit Co., 211 Md. 529, 538, 128 A.2d 413 (1957); Jones v. Baltimore Transit Co., 211 Md. 423, 428-429, 127 A.2d 649 (1956); Kaufman v. Baltimore Transit Co., 197 Md. 141, 146-147, 78 A.2d 464 (1951). Here, the evidence in this regard fell short of establishing such movement, and at most reflected the type of 'mere adjectival description' previously held by this Court to be insufficient evidence of negligence, standing alone, for submission to a jury; see Retkowsky v. Balto. Transit Co., supra, and cases cited therein. As Judge Prescott said for the Court in Retkowsky, supra:

'. . . (A) passenger, once on board a public carrier, (is under a duty) to use reasonable care to protect himself against the normal motions of the vehicles incident to public transportation, and the proof required of a plaintiff who attempts to establish negligence on the part of the operator of a carrier (cannot be met) by the use of strong adjectives or expletives characterizing a stop or a start.' 222 Md. at 437, 160 A.2d at 793.

As we have indicated, the decision rendered by the Court of Special Appeals focuses not on the character of the vehicle's starting motion, but on appellee's position in the bus at that time. In essence, the Court held that while mounting the stairs, she had not yet reached a position of safety; and until she had done so, the operator was under a duty to keep the bus stationary.

In leveling its attack on that holding, MTA relies principally on two prior decisions of this Court: Przyborowski v. Balto. Transit Co., 191 Md. 63, 59 A.2d 687 (1948) and Brocato v. United Rwys. & E. Co., 129 Md. 572, 99 A. 792 (1916). In Brocato, supra, a passenger, on boarding an electric car, had both feet planted on an exterior platform, a level area large enough to hold a number of passengers then standing on it. When she attempted to move from this 'platform' to the interior of the car, '. . . 'she caught her foot on the step that leads into the car from the platform(,) the car gave a jerk and she fell down . . .." In sustaining a directed verdict for the defendant, this Court quoted with approval from an earlier Massachusetts case, Martin v. Boston E. R. W. Co., 216 Mass. 361, 103 N.E. 828 (1914), saying:

'The Court in applying the law of Massachusetts to the facts of the case and in affirming the judgment of the Court below said: 'It is settled law in this commonwealth that under ordinary circumstances it is not negligence for a conductor to give the starting signal after the passenger is fully and fairly on the car. Sauvan v. Citizens' Electric Street Railway, 197 Mass. 176, 83 N.E. 405. In reaching that conclusion the Court recognized not only the imperative demand by (the public for rapid transportation, but) the fact known to experience, that ordinarily it is not necessary for the safety of a passenger in normal physical condition that the car should be delayed until he is seated.' Saunders v. B. E. R. W. Co., 216 Mass. 355, 103 N.E. 779.' 129 Md. at 575, 99 A. at 793.

In Przyborowski, supra, the plaintiff boarded a trackless trolley. She put her fare in the farebox and handed a 'return slip,' which entitled her to a reduced fare, to the operator. The slip fell to the floor, and she stopped on both knees to retrieve the slip. While she was in that position, the trolley started with a 'very fast jerk' and threw her to the floor. Although the passenger had been within reach of a vertical bar, she had apparently made no effort to grasp it before the car started. The Court there held that the passenger was 'fairly aboard' and affirmed the trial court's directed verdict for the defendant, saying:

'. . . (T)he cases seem to hold...