Topp v. United Railways & Electric Co. of Baltimore

• Decision Date: 17 November 1904
• Citation: 59 A. 52,99 Md. 630
• Parties: TOPP v. UNITED RYS. & ELECTRIC CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

59 A. 52

99 Md. 630

TOPP v. UNITED RYS. & ELECTRIC CO. OF BALTIMORE.

Court of Appeals of Maryland

November 17, 1904

Appeal from Court of Common Pleas; Henry Stockbridge, Judge.

Action by Georgianna Topp against the United Railways & Electric Company of Baltimore. From a judgment for defendant plaintiff appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.

Thos G. Hayes and J. Milton Lyell, for appellant.

Reuben C. Foster, for appellee.

PEARCE J.

This suit was brought by the appellant to recover for personal injuries sustained by her while a passenger upon a car of the appellee. The only testimony in the case was her own and that of her son. She testified that when she entered the car she gave her transfer ticket to the conductor, and told him she wished to leave the car at the platform in the rear of the fourth cottage on Chelsea Terrace, where her son and his wife lived; that the defendant company owned and used a private road or way for its tracks and cars running from Clifton avenue to the Windsor Mills Road, in the rear of the cottages on Chelsea Terrace, and that, when the car was about to turn into this way, the conductor asked her at which cottage she wished to alight and she replied, "At the fourth;" that, as the car approached the platform used by passengers for that cottage, she rose and stood until the car stopped, but it did not stop at that platform, nor until it had passed a second platform, used by passengers for other cottages farther up the terrace, and stopped at a point where there was no platform; that the conductor was not paying attention when the car approached the first platform, and did not ring the bell to stop until the car had passed both platforms; that the car was a summer car, with a footboard on the side, and was standing perfectly still when she attempted to alight; that she had never been carried beyond the first platform before, though she had frequently alighted there, and that she did not know the ground beyond the platform, but that the conductor was looking directly at her when he rang the bell to stop, and when she stepped on the running board to alight, and gave her no warning not to do so; that the ground where the car stopped was covered with tall weeds and grass, and looked perfectly safe to alight from the car, but when she stepped down from the running board, while holding onto the car handle with her left hand, her foot could not reach the ground, and she was thrown violently down a declivity concealed by the grass and weeds, wrenching and spraining her wrist, and bruising her body badly. This was on July 22d, and she was confined to the house until August 25th, and continues to suffer so much with her hand that she is unable to attend to her household duties. Her son testified that there are 11 cottages on Chelsea Terrace, in the rear of which the cars run upon the defendant's private property; that there was a platform in rear of the fourth cottage, in which he lived, and another platform in rear of the sixth cottage, each with five steps down to the ground; that he did not know by whom these platforms were provided, but that all the conductors and passengers on these cars recognized them as platforms for receiving and discharging passengers from and to these cottages; that he went with his mother the same afternoon to the place where she said she fell, and subsequently measured the slope of the declivity, and the perpendicular height of the track above the base of the declivity; that the slope was over six feet, and abrupt, and the track was four feet eight inches above the base of the slope; that the appearance of the place was very deceptive, being covered with a dense growth of weeds and long grass, so that it was impossible for any one not familiar with the ground to perceive any danger in stepping from the car. At the close of plaintiff's testimony the court granted the following prayers offered by the defendant: "(1) The defendant prays the court to instruct the jury that there is no evidence in this cause legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendant. (2) The court instructs the jury that, from the uncontradicted evidence in the case, the plaintiff was guilty of negligence directly contributing to the accident complained of, and therefore their verdict must be for defendant." A verdict for defendant was accordingly rendered, and judgment was entered upon the verdict. The only exception was to the ruling on these prayers.

Upon the question of the defendant's negligence, the argument of the appellee was based chiefly upon the contention that a street railway is not liable, as a carrier, to the passenger for the condition of the street upon which he alights. This is undoubtedly correct, as a general proposition, though there are cases where it becomes the duty of the street railway to warn its passengers of the unsafe condition of a street, known to those in charge of its car, but unknown or not plainly discoverable to the passenger, and to assist the passenger in alighting. Here, however, at the place of this accident, the railway was not upon a city street, but upon its own private right of way--a fact which at once broadly discriminates the present case from all those relied on by the appellee, and which effectually deprives it of recourse to the exemption from liability above mentioned. Two of the cases cited by the appellee state very clearly the reason for the rule invoked by it, and no less clearly indicate the circumstances in which it cannot be applied. In Scanlon v. Philadelphia Transit Co. (Pa.) 57 A. 521, where a verdict was directed for defendant, the court said "This car was running upon the public highway, over which, it must be remembered, the defendant company has no control. In laying its tracks it must conform to the established grade. It can neither construct nor alter any of the places at which passengers are to step on or off cars. *** Passengers leaving the cars must step upon the surface of the street in the condition in which it is placed by the city, which fixes and maintains the grades. *** Obviously the rules which may reasonably apply to steam railroads owning their own right of way, and having complete control of the approaches thereto, cannot reasonably be applied to street railways, which have not the right of eminent domain, and are only allowed the use of the highways in common with other vehicles." In Creamer v. West End Railway, 156 Mass. 321, 31 N.E. 391, 16 L.R.A. 490, 32 Am.St.Rep. 456, where a similar verdict was directed, the court said: "But when a common carrier has the exclusive occupation of its tracks and stations, and can arrange and manage them as it sees fit, it may properly be held that persons intending to take passage upon or leave a car have the relation and rights of passengers in leaving or approaching cars at stations." Where, as in the case before us, the street railway owns and controls the place where the accident occurs, and has either constructed or adopted platforms provided for the regular receipt and discharge of passengers, the reason for the rule as to such places ceases, and the rule must cease to operate as to such. We can perceive no reason, upon principle, why, as to the place of this accident, this defendant should not be held to the same liability, as regards a passenger, as a steam railroad, and this conclusion necessarily follows from the two cases last cited. The case of Bigelow v. West End Railway, 161 Mass. 393, 37 N.E. 367, so much relied on by the appellee, was the case of an accident in alighting upon a public street undergoing repair, and thereby rendered unsafe. It may therefore be eliminated from our consideration. For the same reason we may dismiss the argument of the appellee when he says: "The construction of the platform made alighting from the car a little more convenient, but it did not render dangerous the stopping of the car at other places on the embankment, when that stopping had not been dangerous before the platform was built." The embankment being on the property of the defendant and under its control, it would have been an unsafe and dangerous place to let passengers off, if no platform had ever been constructed or adopted by the defendant for that purpose. The same rule, under the facts of this case, in our opinion, is applicable to the defendant as would be applied to a steam railroad owning its right of way. There can be no question what this rule is. It is firmly established that the relation of passenger does not cease upon the arrival of a train at the passenger's destination, but continues until he is afforded an opportunity safely to alight. This has been emphatically declared in this state in P., W. & B.R.R. v. Anderson, 72 Md. 526, 20 A. 3, 8 L.R.A. 673, 20 Am.St.Rep. 483, where this court said: "They [carriers of passengers] are bound to use the utmost degree of care, skill, and diligence in everything that concerns the safety of passengers; nor are their duties limited to mere transportation of them. They are bound to provide safe and convenient modes of access to their trains, and of departure from them." This duty has been variously stated elsewhere. In Gaynor v. Old Colony R.R., 100 Mass. 208, 97 Am.Dec. 96, it was said: "The passenger is entitled to the exercise of the utmost care and diligence in providing against those...