State Ex Rel. Mummaugh v. Western Maryland Railroad , 98 Md. 125 ( 1903 )

This is an action brought in the Circuit Court for Carroll County by State use of Elizabeth Mummaugh and others against the Western Maryland Railroad Company for damages caused by the alleged negligent killing of George W. Mummaugh. The defendant demurred to the whole narr. and the demurrer was sustained by the learned Court below. Judgment on demurrer was given in favor of the defendant and the plaintiff has appealed.

The only question, therefore, presented is whether the narr. or either count thereof sets forth a good cause of action, for if there be one good count, the demurrer should have been overruled.

We will proceed to examine the several counts as briefly as may be. It appears that an amended narr. containing one count was filed 7th day of February, 1903. On the 22nd May following the additional or second count was filed and finally three days thereafter the narr. was again amended by filing the additional or third count.

Which, if any of these counts, states a good cause of action?

The answer to this question ought, in this State, to be free from difficulty, in suits like this to recover damages caused by negligence, because the appropriate forms of pleading which have been so frequently approved by this Court are brief and simple. The various counts of the narr. we are to consider are, however, characterized by unusual length.

Each of the counts alleges that on the 28th June, 1901, Mummaugh intending to have certain property, to wit, a calf transported by the said defendant, a common carrier, from one of its stations, delivered said calf on the market platform of the defendant at said station, and that on the arrival at that station of the train the said Mummaugh entered the car known as the market car of the defendant.

In the first count it is alleged that he entered the car withthe knowledge of the defendant's agents, c., in control of the train and in pursuance of a custom of persons having live stock to transport by the defendant's cars, while in the second the allegation is that the entry on the car to deliver the calf was made with the full knowledge of said employees and with theirconsent, acquiesence and approval and in accordance with the custom as in the first count. The third alleges that he entered the car "at the invitation and upon the request" of the defendant and in pursuance of the custom relied on in the other counts. Also the allegation of negligently starting the train and the injury thereby inflicted upon Mummaugh while he was in the exercise of due and reasonable care in leaving the car is common to all the counts.

There can be no question that if Mummaugh was lawfully on the car of the defendant, it will be liable in damages if his death was caused by its negligence, he being free from contributory negligence on his part. In New York, c., R.R. Co. v.Coulbourne, 69 Md. 367, where the plaintiff was injured while leaving the car, former CHIEF JUDGE ALVEY in delivering the opinion of this Court said: "The plaintiff entered the car for a lawful purpose and was therefore rightfully in the car for such time as was reasonably sufficient to enable him to transact the business for which he entered it. The defendant by its agents and servants was bound to afford reasonable time for the transaction of the business before moving the train, and was also bound to give proper warning of the purpose to put the train in motion to enable the plaintiff by the use of reasonable care and diligence to leave the car without the risk of injury to himself in the act of getting off."

The contention of the defendant is that Mummaugh, according to the allegations of the narr. is a mere volunteer, and that it is immaterial whether the injury occurred while assisting the defendant's employees gratuitously or at their request. But we do not think this position is reasonable, and certainly no authority was cited to sustain it. Thompson on Negligence, p. 1045, sec. 42, is one of the authorities, we find no appellee's brief. The author refers to several English cases, which, in our opinion, so far as this objection is concerned establish the correctness of each count of the narr. here demurred to. The author after laying down the general rule that a mere volunteer cannot recover says that "care must be taken, however, to distinguish the case of a mere volunteer from that of one assisting the servants of another, at their request, for the purpose of expediting his own business or that of their master." In the case of Holmes v. North Eastern R. Co., L.R., 4 Exch. 254, affirmed in Exchequer Chamber, L.R., 6 Exch. 123, it appears that the plaintiff was a person entitled to the delivery of a wagon load of coal from the defendant railway company. The usual mode of delivery was impossible by reason of the crowded state of the station. He was hence allowed by the company's agent to go to another place, and, while so doing he fell through a hole and was injured, owing to the negligent keeping of the company's premises. It was held that he was engaged with the consent of the company, in a transaction which entitled him to have the company's premises kept in a reasonably safe condition. CHANNELL, B., said "We must infer from the silence of the station master (the defendant's agent), that he acquiesced in the plaintiff's going on to the siding (where the injury happened), for the purpose of getting coal in the way in which he did get it." KELLY, C.B., said, "although no express permission was given neither was there any prohibition." This is equivalent to saying that the employee knew the injured person was entering the defendant's premises and if there was no prohibition the consent of the company must be assumed. It was held that although not getting his coal in the usual way, the plaintiff was not a mere licensee, but was engaged with the consent and invitation of the defendants, in a transaction of common interest to both parties and was entitled to recover for the injury. The preceding case was cited in Wright v. The London N.W.R.W. Co., L.R., 1 Queen Bench Div. 252. LORD COLERIDGE, C.J., saying that it was a case of the greatest authority, because in the Exchequer Chamber seven judges affirmed the decision for the reasons given by the Judges of the Court of Exchequer.

The facts of the last named case were as follows: The plaintiff sent a heifer by defendant's railway. On the arrival of the train at the station there being only two porters available to shunt the car to a siding, from which alone the heifer could be delivered to the plaintiff, in order to save time he assisted in shunting the car and while so doing he was run against and injured through a train being negligently allowed by defendant's servants to come out of the siding. There was evidence that the station master knew that the plaintiff was assisting in shunting and assented to his doing so. It was held that the plaintiff was not a mere volunteer assisting the defendant's servants, but was on the defendant's premises with their consent for the purpose of expediting the delivery of his own goods, and the defendants were, therefore, liable to him for the negligence of their servants. LORD COLERIDGE said: "The plaintiff assisted in the shunting * * and that was done with the assent of the station master is proved by evidence which satisfied the Court of Queens Bench and satisfies us. * * * It was also proved that it was common practice for persons to assist in shunting the cattle trucks." In another part of his opinion LORD COLERIDGE says: "We must take it that the station master acquiesced and so authorized the way in which the plaintiff assisted in getting delivery of his heifer." * * * "It is plain, therefore, that the plaintiff was not acting merely as a volunteer, in which case he would have been bound to take all risks upon himself."

Counsel for the defendant contended that Holmes v. NorthEastern, supra, was a very different case from Wright v.Railway Co., supra, because the injury arose in the latter case not from the state of the premises, but from the negligence of servants; but the Court did not agree with him. Opinions were also delivered by the other Judges to the same effect. The opinion of JAMES, L.J. is certainly to be commended for its brevity. It is as follows: "I think it would be a shocking state of the law if a person, in the position the plaintiff was, could not recover. I am glad to find that the case of Holmes v.North Eastern Ry. Co. has established a principle within "which this case falls, which is in accordance with common sense." But it appears from the report of Holmes v. N.W.E.R.W. Co. that several of the Judges, although they agreed the plaintiff should recover, had considerable doubt as to the correctness of their conclusion although founded, as JUSTICE JAMES says, on common sense.

Tested by the law of the cases we have just cited there can be no possible doubt that the second and third counts state a good case, for the second alleges that Mummaugh entered the car to deliver his property to the defendant with the knowledge, consent, acquiescence and approval of its employees, etc., and according to a custom and practice of people shipping live stock so to do. And the third that such entry was made by Mummaugh on the invitation and at the request of said employees and also according to the custom relied on in the second count. The first count fails to allege either an invitation or request or any express assent on the part of the employees. But it does allege their knowledge as well as the custom and practice. It seems to us that if it be proved to the satisfaction of the jury that the employees had knowledge that Mummaugh had gone upon the train to deliver his property for transportation and further that such entry was according to the usual course of business, that is to say, according to the custom and practice before mentioned, the jury not only could, but it would have been their duty, to draw the inference that Mummaugh's entry on the car was with the assent of defendant. In the course of his opinion in Wright v.L.N.W.R.W. Co., supra, CLEASBY, B., said that that case "Seems to have established that where a man is on the premises of a railway company for the purpose of carrying into effect a contract of carriage and delivery, and gets the assent of the company (as indicated by the usual course of business) to assist in the delivery, the plaintiff is entitled to redress if the part of the premises where he is engaged is dangerous to persons engaged upon it and injury ensues to him."

The cases we have cited hold, as we read them, that when a person enters upon the car or train of a railroad company to deliver his property for transportation and this entry is made with the knowledge and assent of the company, and according to a custom so to do, or if he enters with the company's knowledge, assent, acquiescence and approval and according to said custom, or, if he enters on the invitation and at the request of the railroad company to deliver his property for shipment, the railroad company is bound by the exercise of prudence, reasonable care and skill to see that he is not injured, and that if, as alleged in each count of the narr., the injury was caused directly by the wrongful act, negligence and default of the railroad company and without negligence on the part of the person injured, the latter should recover.

Being of opinion that the several counts of the narr. here demurred to are substantially within the rule approved by the foregoing decisions, and as JAMES, L.J., says, according also, "to common sense," we will have to overrule the demurrer to thenarr. with one exception.

The second count appears to allege that Mummaugh was lawfully in and upon the car for the purpose of delivering his property for shipment. Whether he was so, that is legally, in the car for the purpose named, is the chief question in the case, and this, of course, is a question of law and not of fact, and hence it was error to allege it in the narr. But there still remains the third count, which, under any aspect of the case, we think is good.

We are not aware that the narr. has been criticised on any other grounds than on those we have discussed, and being of opinion that the demurrer should have been overruled, the judgment appealed from will be reversed.

Judgment reversed with costs, and case remanded for newtrial.

(Decided December 4th, 1903.)