Davis v. Central Construction Corp.

124 A. 396, 144 Md. 90, 1923 Md. LEXIS 154

• Court: Court of Appeals of Maryland
• Decided: July 26, 1923
• Status: Published

Opinion

Pattison, J.,

delivered the opinion of the Court.

This is an appeal from a judgment recovered against James O. Davis, Director General of Railroads', in a suit by The Central Construction Corporation, to the use of The Maryland Casualty Company and one Joel Harrison, for personal injuries suffered by Harrison, caused by the alleged negligent operation of the defendant’s train on the lines of the Pennsylvania Railroad Company.

In the trial of the case; three exceptions were taken to the rulings of the court.; two upon the admission of evidence and one upon the prayers.

I’lie court was asked by the defendant’s first prayer to instruct the jury that- there was no legally sufficient evidence to entitle the plaintiff to recover and to direct .a verdict for the defendant. Because of this prayer, it will he necessary for ns to state, somewhat in detail, the evidence in support of the plaintiff’s claim.

On the 19th of July, and for some time prior thereto, Harrison was in the employment of the Central Construction Corporation, at Magnolia, Maryland, a station between Baltimore City and Aberdeen, and while so employed, he lived in the City of Baltimore. His work was. at night and each evening he took the train out of Union Station for Magnolia, returning to Baltimore the next morning. He, however, was transferred, from night work to day work, .and this made it necessary for him to leave Baltimore in the morning, and though he was familial’' with the schedule of the work trains leaving Baltimore in the evening for Magnolia, he was not familiar with the morning schedule.

Harrison was. to start his day work on July 19th, 1918, and in the early morning of that day he, with one Whitlinger, a co-laborer, went to Union Station to take a train for Magnolia.

Under his contract of employment his transportation was paid for by the Central Construction Corporation and, under its arrangement with the defendant, Harrison was not required to- procure a ticket, the necessity therefor being obviated by his wearing a button by which he was designated as an employee of the company and one entitled to transportation npon the train of the defendant between the points mentioned.

Harrison testified that upon their arrival .at the station he asked a trainman or “ticket checker” in the station who, at the time, was standing at the gate permitting passengers to decend the stairs leading from the station above to the platform below, from which the passengers bearded the ears, “where to get the train for Magnolia” and he with his companion were directed by him to a number of trains, any one of which they were told would take them to Magnolia. They to'ok one of these trains, which soon filled up. with passengers and, .after waiting “quite a while,” it pulled out. They had gone only .a short distance from the city when two men came through the car “checking passengers.” One of these wore a uniform. Before witness was reached by either of them he heard one of them say to a passenger in the car “Aberdeen only” .and then' called out in a loud voice “Aberdeen only.” When the collector reached him, he asked him, the collector, “Don’t this train stop at Magnolia ?” and he was told that it did not, that it stopped at Aberdeen only. He -then told the collector that he and Whitlinger were going to Magnolia, and the collector replied, “Well, you are on the wrong train; the train is behind that goes to Magnolia.” While this, was being said the train stopped .and the collector said, “Well, boy, you have to get off here and get the train behind.” Both he and Whitlinger got off', and when they did so they found they were not at a station, but'“in the middle of the road.”

Harrison, who had ridden upon the road nearly every day during the six preceding months in going to and returning from his work, Was familiar with the surroundings at the point where he had alighted from the train upon the order of the conductor, and he knew it to be only a short, distance— several blocks”- — from Back Biver station. Sb be with Whit-linger walked up to the station, .as they thought it would be easier to board the train from the station than from the place where they were left, upon the road. When they arrived at Back River station, they saw no one there except a policeman who was, coming to the station from Back Biver Bridge, which was only a short distance away. When the policeman reached the station, Harrison asked him who was in charge of the station and he said, “I am,” and he also said, “I am a Pennsylvania officer” and “I am looking after the bridge and also after tbe approach,” and be said, “What is it you want?” and Harrison said, “We were put off a train — that workmen’s train — We a,re making for Magnolia, and we were put off the workmen’s train to get one behind, so we walked up to the Station, thinking the train would probably stop at the station.” The policeman said, “The train won’t stop' here, you will have to go right back to where you got off the other train; that is-where thei train will stop.” Harrison said, when told this, “we hurried hack and saw the train coming and when we got there the train just pulled in and stopped”; that .at tbe time it stopped he was, -on a pathway running parallel with the tracks of the, road and as he says “when the train, stopped, I got off the pathway and made straight for the train and got on the train,” and when asked “how far on did you get,” he said, “I wa,s o*n the train, up the steps, on one step with two feet, making to- go- np further; the first step was a high step, and I had two feet on the step when the train gave a big jar and threw me and I got my leg ent off.”

It is claimed by the defendant that this evidence is not legally sufficient to go to- the jury as tending to- show that Harrison was a passenger of the defendant at the time of the injury to him. It is upon this contention, which is raised by the defendant’s first prayer and his special exceptions to the plaintiff’s first and second prayers, that the defendant chiefly relies, although, .as we understand him, he concedes in his brief that tibe relation of passenger and carrier existed between Harrison and the defendant from the time he entered Hnion Station for the purpose of taking a train until he reached the point where he was left upon the road; but because of his conduct thereafter in attempting to- take the train that followed at that po-int, and not from Back River station, he ceased to- be a passenger of the defendant.

In 6 Cyc. 541 it is s-aid: “Where the relation of carrier and passenger is- once established it continues until terminated ¡by the voluntary .act of the passenger, or the act of the carrier, under circumstances- justifying, its termination, and extends to the ¡arrival of the passenger at his destination.”

The relation of passenger does not cease when the passenger, upon the express or implied invitation of the company, leaves the oar, though not ait a regular stopping place, to take another ear or train for the p-urpose of continuing the journey o-r for any necessary purpose incident to- the journey. 10 C. J. 629; Chicago and A. R. Company v. Winters, 175 Ill. 293; Killmyer v. Wheeling Traction Company, 72 W. Va. 148, 48 L. R. A. (N. S.) 683.

The train boarded by Harrison at Union Station was to stop- at Aberdeen, a station upon the defendant’s road beyond Magnolia, but it seems it was not to sto-p at that place. This fact, however, was not known to> Harrison until after the train had left Baltimore-. He had been told, as he s:ays, -by one who, he had reason to believe, knew of the movements of the trains out of Union Station, and had the authority to- direct him, that- the train he to-ok was one that would stop- at Mag nolia. He had no* ticket and none was required under the arrangement between Tbe Central Construction Company and the defendant. Therefore he was in no sense a trespasser upon the train, which he was later, before reaching the point of destination, directed to leave to- .take the train that followed. When told to get off the train he wasi simply directed to* “take the train behind,” which he was told would stop at Magnolia. It was with these directions only that he was required to leave the train, and, until he had alighted therefrom, he did not know that he was not at a station.

Why the conductor did not stop the train at Back River station which, by the evidence of the defendant, was not over one-half mile from the place at .which he stopped, is not explained, although it is shown by the defendant’s testimony that the Magnolia train which followed would stop at that station if flagged.

The plaintiff knew, however, that the place where he gpt off the train was not far from Back River station, and inasmuch as the conductor had failed to tell him at what point lie should take the train that followed, he concluded that the train he should take would stop at the station, and not at the place where he was left on the road. He therefore walked up* the road to the station, and it was there that he saw the policeman to whom reference has been made*, who told him that he was not only a policeman in charge of the bridge and its approach, but that he also had charge of the station.

It is shown from the evidence that the station was little used, and Harrison might well have thought that the duty of agent at that station had been imposed upon the policeman in •addition to the care and protection of the bridge near by, and, when told by Mm that the train would not stop at that station but would stop- where Harrison had left the train, and to go hack to such place, Harrison naturally returned to that place.

Harrison was nowhere contradicted in the evidence given by him as to* the conversation between him and the employee of the defendant in Union Station, in relation to the train Harrison should take .for Magnolia. Hor was he contradicted in Ms statement as to what occurred at the time he was required to leave the train, nor as to Ms conversation with the conductor, nor does the .evidence show that Harrison at any time intended to abandon Ms journey.

Evidence was offered by the defendant to the effect that the policeman at Back River station, who was dead at the time of the trial, Was not an agent at that station, and had no authority to direct Harrison .as to what he should do iu regard to taking the train for Magnolia. And evidence was also offered in contradiction of Harrison’s statement that the train had stopped, at or near the place where he had been put off, at the time when he attempted to hoard it. The witness for the defendant testified -that the train at the time Was moving at a .speed of .six or eight miles an honr.

But, iu determining the question under consideration, we must assume the truthfulness of Harrison’s evidence and it, we think, was legally sufficient as tending to show that Harrison was not only a passenger When told to get off the train, but continued to be and was a passenger of the defendant at the time of the injury for which this: suit was instituted.

The further contention is made that the plaintiff should not recover because of Harrison’s alleged negligence, contributing to the accident, in .attempting to board the train while it was said by the defendant to he in motion, hut this question we think was. properly disposed of by the prayers which submitted the finding of such fact to the jury.

We have carefully examined the other prayers of the defendant, and his special exceptions to the plaintiff’s third prayer, as well as -the plaintiff’s prayers, and without discussing them, we will state that we have found no reversible error in the court’s rulings thereon.

Two exceptions were taken to the rulings upon the evidence. They relate to two questions asked Wm. E. Obleman, telegraph operator at the tower located near the place where Harrison got off the train. They both, in effect, asked if passenger trains Were accustomed to stop, to receive passen gers at the place where Harrison attempted to hoard the train.

If the evidence here sought was admissible, we discover no possible harm that was done the defendant by its exclusion. The witness had previously stated that no> train stopped there, and the same witness afterwards stated that at such place “there was no platform or any other similar arrangement for the reception of passengers.” And in addition to this evidence, the conductor of the train which Harrison was attempting to take at the time of the accident testified that there were no¡ station facilities at that point; that it was not a regular stop for trains and that no trains stopped there.

As we fail to discover any reversible error in the court’s rulings in the .trial of 'the case below, we will affirm the judgment appealed from.

Judgment affirmed, with costs.