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

• Decision Date: 26 June 1917
• Docket Number: 10.
• Citation: 101 A. 546,130 Md. 603
• Parties: STATE, to Use of SCOTT et al. v. WASHINGTON, B. & A. ELECTRIC R. CO.
• Court: Maryland Court of Appeals

101 A. 546

130 Md. 603

STATE, to Use of SCOTT et al. v. WASHINGTON, B. & A. ELECTRIC R. CO.

No. 10.

Court of Appeals of Maryland

June 26, 1917

Appeal from Circuit Court, Prince George's County; John P Briscoe, B. Harris Camalier and Fillmore Beall, Judges.

"To be officially reported."

Action for death by the State of Maryland, to the use of Eleanor Sanford Scott and another, infants, against the Washington Baltimore & Annapolis Electric Railroad Company. Judgment for defendant, and use plaintiffs appeal. Affirmed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

Leonard J. Mather and Robert W. Wells, both of Washington, D. C (Frank M. Stephen, of Upper Marlboro, on the brief), for appellants.

George Weems Williams, of Baltimore (T. Van Clagett, of Upper Marlboro, on the brief), for appellee.

BURKE J.

The appeal in this case was taken from a judgment rendered in favor of the appellee in the circuit court for Prince George's county under an instruction of the court by which the case was withdrawn from the consideration of the jury and a verdict directed for the defendant.

The suit was brought in the name of the state, for the use of Eleanor Sanford Scott, the widow of Oscar Scott, and his infant son, Kenith Walter Scott, to recover damages for the death of the husband and father, who was alleged to have been killed by the negligence of the defendant. The record contains two exceptions taken by the plaintiff during the course of the trial; the first relating to a ruling on evidence, and the second to the granting of the prayer submitted at the close of the plaintiff's case, withdrawing the case from the consideration of the jury. The declaration contained two counts; but there was no evidence to support the second count, and it is conceded that no recovery could have been had under that count.

The defendant is a common carrier of passengers for hire, and owns and operates an electric railway between the city of Washington, in the District of Columbia, and Baltimore city, in the state of Maryland. Oscar Scott, the deceased, boarded the defendant's car as a passenger at White House Station, Fifteenth and H streets, Washington, for Dodge Station, on the defendant's line, on July 1, 1915, about 7:20 p. m., and was killed at Springman's Crossing, Md., by a car of the defendant running from Baltimore to Washington. The alleged breach of duty on the part of the defendant, upon which the suit is based, is specifically set out in the first count of the declaration. After stating that the deceased was a passenger upon the defendant's cars, and that it was its duty to exercise the highest degree of care towards his safety, it alleged that:

"Said defendant railroad company became and was negligent, in that on the day aforesaid, after said plaintiff's intestate, who had been drinking intoxicating liquor, had purchased a ticket entitling him to safe transportation from this city to a place or station in the state of Maryland called Dodge Park, and to fit, proper, and adequate protection while he, said plaintiff's intestate, was being conveyed to his said destination, and after said plaintiff's intestate had been placed upon one of the defendant company's cars by said defendant company, by and through its servants, agents, and employés, and had taken his seat therein, and after said car had been started from Washington for the destination of said plaintiff's intestate at said Dodge Park Station, in the state of Maryland, as aforesaid, but long before it had reached there, said defendant company, in violation of the duty owed said plaintiff's intestate, as aforesaid, who was behaving himself in a seemly and proper manner, by and through its conductor, servant or servants, or agents then and there in charge of said car, maliciously, willfully, and wantonly assaulted, beat, kicked, and grievously wounded and injured said plaintiff's intestate, without cause therefor on his part, and violently ejected and threw said plaintiff's intestate from its said car, whereby and by reason of which said treatment, in the then condition of said plaintiff's intestate, he was so dazed, disabled, and injured as that, after being thus ejected from said defendant company's car, he was in a helpless condition, and wandered aimlessly about said defendant company's tracks and right of way in his effort to find and go to his home at said Dodge Park, in the state of Maryland, as aforesaid, until later he was struck and killed by another of said defendant company's cars, which was south-bound and on its way from Baltimore to the city of Washington and District of Columbia."

Assuming, as contended by the plaintiff, that the expulsion of the deceased from the defendant's car in the District of Columbia was unlawful, and that he was assaulted and maltreated by the defendant's agents in charge of the car, the important legal question presented by the appeal is this: Does the record contain any evidence legally sufficient to show or tending to show any legal connection between the negligence alleged and the death of Scott? Stated in another way, did the plaintiff offer any evidence legally sufficient to show that there existed the relation of cause and effect between the negligence alleged and the death of Oscar Scott? The determination of this question depends upon an accurate statement of the material facts appearing in the record. In the last analysis, questions of proximate and remote cause must depend on the facts of each particular case. 7 Am. & Eng. Ency. of Law (2d Ed.) 1381.

Oscar Scott was 32 years of age. He was a carpenter, and was familiar with the defendant's road, having been employed by the company as an inspector of ties. He lived near Dodge Station, Prince George's county. Shortly before his death he was working at his trade and was making $4 per day. On the morning of July 1, 1915, he left home and went to Washington. Mrs. Scott, his widow, testified that he did not go to Washington that morning to work, as he was sick; that he had been home two weeks. The record contains nothing as to Scott's whereabouts from the time he left home until he boarded the car on his return trip at about 7:20 p. m. He took a seat in the smoking compartment. He was sick and vomited in the car. A witness said he was "sick at the stomach." There were four occupants of the smoking compartment, viz., Scott, a colored man, and two white men. After Scott vomited, the two white men went into the passenger compartment.

W. C. Robinnett, the motorman, testified: That he saw Scott on the car; that as the car came along Bennings Race Track the conductor came out front and said to him:

"That he had a passenger back there that wouldn't pay his fare, and that he had been drinking and wouldn't pay his fare, and he said: 'Stop up there; I want to put him off.' That was along at Bennings; it was along about Bennings Race Track. So when we got to Minnesota avenue I stopped the car and waited a minute, sitting in my cab, and I heard a commotion out in the baggage room. The baggage compartment was on the front, the smoker next to that, and the passenger compartment behind that. I heard the commotion out there, and I sat still in my cab. I heard the conductor arguing with him, trying to get him to pay his fare, and he would not pay his fare. He said he was not going to pay the conductor his fare. Then I stepped back in the baggage part where he was."

When the car reached Minnesota avenue, the conductor attempted to put Scott off. He resisted. He was put off twice, and jumped back, and held to the hand bars. The car would move slowly and stop.

The witness White testified: "He got off the car a couple of times-they got him off the car and he would jump back on. He was right on the other side of Minnesota avenue when witness saw the conductor kicking; about a block and a half or two blocks from Minnesota avenue. The car had stopped the last time they put him off; the car was running slow; it would stop like, and they couldn't get him off, and it would run a little further; he was hanging onto the grips-standing on the steps; didn't see whether or not he was dragged; heard the conductor tell Mr. Scott to get off; that is all witness heard. Didn't hear Mr. Scott make any reply. Didn't hear the motorman say anything. The motorman took part in putting Mr. Scott off. The last witness saw of Scott he was going back down the track toward Minnesota avenue. Scott's apparent condition during the time he was being put off was that of a sick man. He was vomiting when he first got on the car; that is what made me go out of the smoker. The conductor's manner exercised towards Scott throughout the ejectment was 'an ugly manner."'

Bernard F. Howard testified:

He was in the passenger compartment, and heard a commotion in the smoking car. "That between the smoking and passenger compartments there was no other compartment on the car; when the attention of witness was first attracted by the commotion did not investigate at first to see what it was about, but later on he did, and found that after the car left Minnesota avenue-they stopped at Minnesota avenue and I understood they were putting a man off-but witness was reading, and did not pay much attention to it until after they started up, and witness heard some woman in the back say, 'That man will get killed.' The car witness was in had a motorman and a conductor, and after witness went in the smoking car to see what the commotion was about-didn't notice how many people were in the smoking car at the time; only went to the door; thinks there were very few, but couldn't tell how many-first thought that the conductor and Scott were guying or fooling with each other, and witness went back and sat down, but

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