Pugh v. Washington Ry. & Electric Co.

• Citation: 113 A. 732,138 Md. 226
• Decision Date: 05 April 1921
• Docket Number: 4.
• Parties: PUGH v. WASHINGTON RY. & ELECTRIC CO.
• Court: Court of Appeals of Maryland

113 A. 732

138 Md. 226

PUGH v. WASHINGTON RY. & ELECTRIC CO.

No. 4.

Court of Appeals of Maryland

April 5, 1921

Appeal from Circuit Court, Montgomery County; Edward C. Peter and Glenn H. Worthington, Judges.

Action by Margaret Leona Pugh against the Washington Railway & Electric Company, a corporation. From a judgment for defendant on directed verdict, plaintiff appeals. Affirmed.

Argued before BRISCOE, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

H Maurice Talbott and John A. Garrett, both of Rockville (Talbott & Prettyman, of Rockville, on the brief), for appellant.

Wm. H Talbott, of Rockville, and S. R. Bowen, of Washington, D. C for appellee.

PATTISON J.

The appeal in this case is from a judgment for the defendant in an action brought by Margaret Leona Pugh, the appellant against the Washington Railway company, which operates an electrically equipped railroad from the city of Washington to the town of Rockville, in Montgomery county, Md.

As disclosed by the declaration, the ground upon which recovery was sought was the negligence of the conductor, a servant of the defendant company in charge of its car, in failing to protect the plaintiff from insult and injury caused by others, while the plaintiff was a passenger upon said car.

The undisputed facts of the case are these: The plaintiff, 17 years of age and unmarried, and her sister, Maude Bettiker, 20 years of age, were employed in the city of Washington. On the 14th day of March, 1917, they visited their father, who lived in Potomac, Montgomery county, Md. After spending the day at their father's home, they, accompanied by their uncle, went to Rockville to take the 9:30 car of the defendant company for Washington. At this time there was a strike on the part of the conductors and motormen of said company, and the cars were running very irregularly. The plaintiff and her sister reached the station at Rockville about 9 o'clock, but the first car thereafter going to Washington did not leave Rockville until about 12 o'clock. When the plaintiff and her sister boarded this car they found on it only the motorman, conductor, and one Stanley Gingell, a deputy sheriff of Montgomery county, who at the time was also in the service and employment of the railroad company, having been employed by it because of said strike, to look after and protect its property from violence and prevent disorders. The sisters took seats about midway of the car on the right side of the aisle. At this time Gingell, whom they had "known all their lives," was seated in the upper end of the car, but after the car had gone a short distance-to the limits of Rockville-Gingell went back to where the sisters were seated, and, turning the seat of the car immediately in front of them, he sat upon it, next to the window, facing the sister of the plaintiff, who was seated next to the window on the seat occupied by her and the plaintiff, leaving the vacant seat beside Gingell directly in front of the plaintiff. No other persons boarded the car until it reached the car barns at or near the district line, where 10 or 15 men entered in a boisterous and loud manner, cursing, laughing, and talking loudly. After entering the car they were seen to have whisky, and this some of them drank while in the car. Two of these men took seats directly across the aisle from where the plaintiff was seated. The name of one of them, as it was afterwards learned, was Padelli. He after sitting there a short while, got up and took the vacant seat next to Gingell, immediately facing the plaintiff, and he for some time sat there without engaging in conversation with Gingell, the plaintiff or her sister, although Miss Bettiker testified that at the time he took the seat he spoke to Gingell, and Gingell spoke to him, but this is at variance with Gingell's testimony. It was while seated in this position that the offense complained of was committed by Padelli.

The sister of the plaintiff, in relating the facts in connection with the acts and conduct of Padelli at such time, testified that shortly after the men boarded the car the conductor walked down to the back end of the car and then back to the front end and there stood. The car had on each side of the end a seat running parallel with the car, capable of holding four or five passengers, and in the central part short traverse seats on each side of the center aisle, each seat being designed for the occupancy of two persons. Padelli, who was across the aisle from them, and next to it, got up and came over and took the vacant seat by Mr. Gingell, who was talking to witness, and when so seated Padelli was directly in front of the plaintiff.

When the car reached a place called McLean's Clock, about 10 or 15 minutes after Padelli had taken the seat by Gingell, she heard her sister cry "Stop!" to which Padelli replied "that he was just getting his hands warm," and when he did it again she again told him to "stop," but he would not do it. The conductor was at the time standing there, laughing at her, and made no effort to stop him. Mr. Gingell made him stop, and he got up and went into another seat. Gingell, when his attention was called by the "outcry," made upon the second occasion, reached over, grabbed Padelli's hand, and after a struggle succeeded in breaking his hand away, and pushed him into the aisle. Padelli she said had his hand under her sister's clothes for about two minutes, and at such time the conductor was two or three feet away, laughing at him. Later in her testimony she stated that at such time the conductor was standing "in front of us, about two or three seats up." She further testified that the conductor at times was in the rear, and at other times in the front of the car, and "at the time of the occurrence mentioned the conductor was walking backwards and forwards, and was a considerable distance from them at various times, and talking at times with other people in the car, and may have been looking at other people in the car." She did not know he was laughing at them, though he was looking at them.

The plaintiff testified that when she first felt the man's hand upon her "limb" she "cried out," and he replied that he was simply trying to warm his hands, and she supposed that was true. She then did not doubt his word, as there was a radiator under the seat on which she was sitting. She said at that time Gingell "did not notice the action, and there was nothing unusual to attract his attention." About two minutes later "he put his hand under my dress, and caught hold of my leg above the knee. I called the conductor, who was standing at the end of the seats. I don't know how many seats away. *** He was at the end of the car." And at that moment when Padelli had hold of her leg she called Mr. Gingell, who was talking with her sister, and sitting alongside of Padelli. She called to Gingell because she supposed he was not paying any attention to Padelli. *** If he had been he would have done something, as he was not more than two or three feet away, and was a deputy sheriff." She testified that Padelli was seated immediately in front of, and facing her for 10 or 15 minutes before the act mentioned, and during that time sat there quietly while she talked to Gingell and her sister. She further testified that Padelli was a perfect stranger to her and her sister, and neither had spoken to or looked at him on the car, and did nothing to invite his attention; that at the time Gingell was "tussling" with Padelli, the conductor, who "was standing at the end of the seats in the end of the car up towards the front," did nothing, just stood and laughed. "She could not tell that his vision was directed directly at the seat and what this man was doing, but he was standing there looking on, and was in a position where he might have seen if he had looked in her direction." She could not say the conductor was laughing at what she had said or something else. She also testified that Padelli put his left hand on her right leg; "that it was possible that the conductor did not see what this man was doing at the moment; that she was sitting with her legs crossed."

Gingell, when called by the plaintiff, testified that he at the time was deputy sheriff of Montgomery county, and was employed by the defendant company for the protection of its property from violence and to prevent disorders; and that on the occasion mentioned he "was riding on that car to prevent or detect trouble or disorders that were occurring"; and that the same was known to the conductor; and that he "was employed and paid by the railroad company" for such services.

He further testified that the cars were being operated by a crowd of men known as "strike breakers," and that the men who boarded the car at the barns were men whose faces he knew as members of the strike-breaking crowd, but did not know their names. He then spoke of the act of...