Plummer v. Washington, B. & A. Electric R. Co.

• Decision Date: 11 November 1914
• Docket Number: 6.
• Citation: 92 A. 536,124 Md. 200
• Parties: PLUMMER v. WASHINGTON, B. & A. ELECTRIC R. CO.
• Court: Maryland Court of Appeals

92 A. 536

124 Md. 200

PLUMMER v. WASHINGTON, B. & A. ELECTRIC R. CO.

No. 6.

Court of Appeals of Maryland

November 11, 1914

Appeal from Superior Court of Baltimore City; Carroll T. Bond Judge.

Action by Mary Alice Plummer against the Washington, Baltimore & Annapolis Electric Railroad Company. Judgment for defendant and plaintiff appeals. Affirmed.

Joseph Addison and Aubrey Pearre, Jr., both of Baltimore (Preston S Cotten, of Norfolk, Va., and Barton, Wilmer & Stewart, of Baltimore, on the brief), for appellant. L. Vernon Miller and George Weems Williams, both of Baltimore (Marbury, Gosnell & Williams, of Baltimore, on the brief), for appellee.

THOMAS J.

This suit was brought by the appellant to recover for injuries alleged to have been caused by the negligence of the appellee. The appellant was a passenger on one of the cars of the appellee, and the narr. avers that the injury she sustained--

"was the direct result of the negligence and want of due care of the defendant, its agents, servants, and employés in failing to provide proper and adequate accommodations for the plaintiff; in compelling her removal from one car to the other while the train was in motion; in not accompanying her from one car to the other while the car was in motion; and in failing to furnish her proper assistance and attention in the course of her enforced removal from one car to the other car while said train was in motion."

The only evidence in the case reflecting upon the question of negligence is the testimony of the plaintiff and her mother. The defendant was a common carrier of passengers, and operated an electric railway between Annapolis and Baltimore City, Md., and Washington, D. C. The plaintiff testified that in March, 1913, she and her mother went to the station of the defendant in Annapolis to take a car for Washington, and that while waiting there a car came into the station, marked "Washington Limited," which the conductor said was a car for Washington. She and her mother got on the car, and a few minutes after they were seated the conductor "came through" and said that the next car "was for Washington," and that that car went to Baltimore. They got off the car and entered the next car, and as her mother was about to take a seat in the second car, the conductor announced that that car went to Baltimore, and that the next car was for Washington. They then entered the "third car, marked 'Washington?"' The conductor, who was standing near the entrance of the third car next to the second car, said, "This way please," and when the plaintiff and her mother entered the car they found that they were in the baggage compartment. There were several persons standing in the baggage compartment, and the plaintiff says that she and her mother "started in the passenger compartment, but finding the seats in this filled, and that it was impossible to get through, she stood up in the baggage compartment, and the car started almost as soon as they boarded it." There were about seven people in the baggage compartment, and some young men who got on at Annapolis fixed a seat for the plaintiff and her mother on some suit cases. When the car was about halfway between Annapolis and Academy Junction, the conductor came through the car, taking up tickets, and said, "Seats for all in the rear car." A lady and her husband started out of the baggage compartment, but the plaintiff remained seated because she did not care to move while the car was going so rapidly. After the conductor had taken up the tickets he turned to the plaintiff and said: "Seats for all in the rear car. I will assist you ladies through to a seat." The plaintiff and her mother then got up and, preceded by the conductor, started through the aisle of the passenger compartment to the rear car. The plaintiff told her mother to go next to the conductor because she was afraid that, as her mother was a much older woman, she might fall. The conductor assisted them across the coupling of the cars into the rear car and then left them. The nearest vacant seat in the rear car was the third seat from the rear, and about the time her mother reached this seat and was standing in the aisle holding onto the seat, and the plaintiff, who was following her, had reached the fifth seat from the rear end of the car, the car "went fast around a curve," and the plaintiff was "thrown from" her feet and her knee was injured. The plaintiff further stated that when she got on the car at Annapolis "she is positive there were only three cars"; that when the conductor suggested to her that there were seats in the rear car she told him that she did not care to move "while the car was in such rapid motion"; that she preferred to wait until they got to Academy Junction, and that he replied that he would see them safely through to a seat in the rear car, and that she then "moved"; that when they started for the rear car she had a small traveling bag, a muff, and a mesh bag in her right hand, and that her left hand was free; that there were handles on the seats "for people to grasp" while walking through the aisle, and that she had her hand on the seat when the motion of the car "threw her."

The plaintiff's mother, after stating that they entered the first and second cars and got off because the conductor announced that they were for Baltimore, that when they entered the baggage compartment of the third car they could not get any further because of the crowded condition of the car and aisle, and that they sat down in the baggage compartment on some baggage arranged for them by a young man, further testified as follows:

"We were as comfortably seated in there as we could be on the baggage with the other passengers; then the conductor came in there; he was punching tickets, and I handed him my ticket, and he said, 'Seats in the rear car for everybody'; several passengers started through, but my daughter thought it was best to remain, as the cars were running rapidly and she was afraid I would fall. I got up and held on; just then the conductor returned and said, 'I will assist you ladies to a seat; seats in the rear car for everybody to be seated.' I said, 'Why we had better go,' she said, 'No,' but then we started and after getting through this car, why he went ahead of me; then he took me by the arm and assisted me across the coupling and then I walked on, holding on as I went through; it was all I could do to keep my feet; thinking she was safely protected by the conductor I went on. I got to the third seat from the rear, which was the first vacant seat, and caught hold of the seat to keep anybody from getting into it, as it would be a seat for both of us; I noticed a commotion and turned quickly, and she was prostrate in the aisle with her head down on the floor."

At the conclusion of this evidence, and the testimony of a physician, called by the plaintiff, as to the extent of the plaintiff's injury, the case was withdrawn from the jury on the ground that there was no evidence legally sufficient to entitle the plaintiff to recover under the pleadings.

As we have said, the negligence charged in the declaration is: (1) The failure of the defendant to provide adequate and proper accommodations for the plaintiff; (2) "compelling her removal from one car to the other, while the train was in motion"; (3) "not accompanying her from one car to the other while the car was in motion"; and (4) "failing to furnish her proper assistance and attention in the course of her enforced removal from one car to the other while the train was in motion."

It is apparent from the testimony to which we have referred that it is devoid of any evidence tending to sustain the first, second, and third assignments of negligence. While the plaintiff says that there were only three cars when she got on the third car at Annapolis, she was manifestly in error as to that, for she and her mother both say that the car started promptly after they entered the baggage compartment. The rear car must therefore have been attached at the time the plaintiff entered the baggage compartment, or was attached before the train started, for there is no evidence to show that the train stopped before reaching Academy Junction, and if the rear car was attached before the train started from Annapolis, the defendant, according to the evidence, had provided ample accommodations for all the passengers.

There is no evidence that the plaintiff was compelled to go into the rear car, in the sense that the conductor ordered her to do so. He found the...