United Rys. & Elec. Co. of Baltimore v. Phillips

• Decision Date: 15 November 1916
• Docket Number: 21.
• Citation: 99 A. 355,129 Md. 328
• Parties: UNITED RYS. & ELECTRIC CO. OF BALTIMORE v. PHILLIPS.
• Court: Maryland Court of Appeals

99 A. 355

129 Md. 328

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

No. 21.

Court of Appeals of Maryland

November 15, 1916

Appeal from Court of Common Pleas of Baltimore City; H. Arthur Stump, Judge.

Action by Maggie Phillips against the United Railways & Electric Company of Baltimore. From judgment for plaintiff, defendant appeals. Affirmed.

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

Joseph C. France, of Baltimore (J. Stanislaus Cook, of Baltimore, on the brief), for appellant.

Richard A. Miller, Jr., of Baltimore, for appellee.

BURKE J.

The appellant owns and operates an electric railway in the city of Baltimore. On the afternoon of July 28, 1913, Mrs. Maggie Phillips, the appellee, was a passenger on one of its cars and she testified that she was injured by a fall which fractured her kneecap while a passenger on the car. If the evidence produced on behalf of the plaintiff be true, there can be no doubt that she was very seriously and painfully and probably permanently, injured. But the nature and extent of her injuries were matters exclusively for the jury, and are not subjects for review on this appeal.

The appellee sued the railways company in the court of common pleas and recovered a judgment against it, and the appeal before us was taken by the company from that judgment. The declaration contained one count. It alleged That on or about July 28, 1913, the defendant accepted the plaintiff as a passenger for hire on an east-bound car of its line at the corner of Lexington and Caroline streets, and that, "after the plaintiff had boarded said car and had taken a place standing in the aisle, it being necessary for her to do so, and while she was using due care, the agents and servants of the defendant in the charge and control of said car negligently and carelessly caused it to start with a sudden and unusual jerk, and plaintiff was thrown violently to the floor on her knees; that in consequence thereof the plaintiff's left kneecap was broken, and she was otherwise badly shocked and injured," etc.

The record contains two exceptions. One relates to the admission of testimony, and the other to the rulings on the prayers. The important questions in the case arise upon the defendant's first, second, and third prayers, by which it was sought to withdraw the case from the consideration of the jury, and upon the defendant's eighth prayer, which is here transcribed:

"The court instructs the jury that it is a well-known fact that electric cars cannot be operated with perfect smoothness when being started or brought to a standstill or while in motion, and that there are certain irregular movements to which they are subject, and which do not justify the inference of negligence or carelessness on the part of those in charge, and, even if the jury find that at the time of the accident mentioned in the testimony in this case the car gave a sudden and unusual jerk, that fact alone is no evidence of negligence on the part of the railway company, and the jury are further instructed that the plaintiff in this case is not entitled to recover unless the jury shall find from the evidence that the motorman, in starting his car, did so in a careless and unusual manner."

In support of the case made by the declaration the plaintiff offered evidence tending to prove the following facts: That on the afternoon of the day on which she was injured she boarded a north-bound Preston street car at Caroline and Pratt streets, paid her fare, and got a transfer for the corner of Lexington and Caroline streets where she got off and waited for a car which came up Lexington street and turned into Caroline street at this transfer point, and which she intended to take to reach her home. There is a curve in the track at the corner of Lexington and Caroline streets, and at the time the plaintiff boarded the car at this point it was standing "perfectly still" with its rear end resting on the curve. It was an open summer car with no aisle, and the seats ran transversely across the entire width of the car. The plaintiff testified that when she got on the car there were no vacant seats; that she stood between the seats, and held on to the back of the seat in front; that was the only way she could hold. She said:

"I stood there between the two seats holding myself by the tips of my fingers the best I could, and while I was standing there the conductor pulled the bell and the car started. I couldn't tell you exactly how far, but it could not have been more than a couple of feet, when there was a sudden and unusual jerk that caused the passengers to scream out, and at the same time I fell to my knees, and then the conductor pulled the bell and came to my assistance."

When asked why she called the jerking sudden and unusual, she said:

"You know often when a car starts there is a little jerk, and you have to be prepared for this, but this was such a violent jerk that it caused the passengers to scream, 'Oh!' and it swayed me forward and threw me down on my knees. *** The conductor knew I fell, the crash was terrific and everybody in the car heard it. It was as though you would tear a big piece of muslin, and he came to me and said, 'Are you hurt?' and I said I didn't know, but 'I think there is something the matter with my knee."'

She said that when she reached North Lakewood avenue and Fairmount avenue the conductor helped her off, that she was unable to walk and sank down on the street, and that she then realized how badly she was hurt. She was taken to her home in a wagon, and a physician summoned, who testified as to the serious nature of the plaintiff's injuries, which the evidence tends to show she sustained from the fall in the car.

It is not claimed that ...