This suit was brought in the name of the State of Maryland to the use of the widow and children of Frank H. Deane against the United Railways and Electric Company of Baltimore, to recover damages for the injury caused to the equitable plaintiffs by the death of Mr. Deane. His death is alleged to have been the result of the defendant's negligence, and the negligence charged consisted in the failure of the *Page 624 company's servants to protect the deceased whilst he was a passenger on one of its cars from the deadly assault made upon him by a fellow-passenger. The main question in the case is whether there was sufficient evidence of negligence to justify the trial Court in allowing the case to go to the jury. At the close of the evidence adduced in behalf of the plaintiff, the defendant requested the Court to withdraw the case from the consideration of the jury. That request was refused and the defendant reserved an exception. The defendant then offered evidence on its part and when all the evidence on both sides was in, it renewed the request previously refused and presented several other prayers for instructions to the jury. The request to withdraw the case from the jury was again refused, though the Court granted several other prayers submitted by the defendant. The refusal to grant the first, third and tenth prayers, which asked to have the case taken from the jury, the refusal to grant the defendant's eighth prayer and the granting of the plaintiff's first prayer constitute the rulings assigned as error in the second exception. No point has been made upon the plaintiff's prayer and we need not allude to it further than to say that it fairly submitted the law of the case to the jury. Thefirst exception is out of the case, because the presentation of evidence by the defendant after the Court had declined to take the case from the jury on the evidence of the plaintiff, was a waiver of that exception. That proposition has been so recently decided in Barabasz v. Kabat, 91 Md. 53, that we shall not pause to discuss it. We, therefore, come to inquire as to the legal sufficiency of the evidence to support the averments of the declaration.
It may not be amiss, at this point, to state briefly the legal principles applicable to such a case as this, though they were considered and announced not long ago in Tall v. Steam PacketCo., 90 Md. 248. "A carrier is not an insurer of the absolute safety of his passengers; yet he is bound to use reasonable care according to the nature of his contract; and as his employment involves the safety of the lives and limbs *Page 625 of his passengers, the law requires the highest degree of care which is consistent with the nature of his undertaking. B. O.R.R. Co. v. State, use of Hauer, 60 Md. 449. This, though the measure of the carrier's duty as between him and his passenger in respect to acts or omissions of the carrier and his servants towards the passenger, is not the standard by which his liability to the passenger is to be guaged or determined when intervening acts of fellow-passengers or strangers directly cause the injury sustained whilst the relation of passenger and carrier is subsisting. Such an injury, due in no way to defects in the means of transportation or to the method of transporting, or to an actual trespass by an employee whilst the relation of passenger continues and involving, therefore, no issues of negligence concerning the duty to provide safe appliances and competent and careful servants to operate them, but arising wholly from the independent misconduct of a third party, furnishes a ground of action against the carrier only when the carrier or his servants could have prevented the injury but failed to interfere to avert it. The duty of the carrier in such instances is, consequently, relative and contingent, not absolute and unconditional. * * * * * * The negligence for which, in such cases, the carrier is responsible is not the tort of the fellow-passenger or the stranger, but it is the negligent omission of the carrier's servants to prevent that tort from being committed. The failure or omission to prevent the commission of the tort, to be a negligent failure or omission, must be a failure or an omission to do something which could have been done by the servant; and, therefore, there is involved the essential ingredient that the servant had knowledge, or with proper care could have had knowledge, that the tort was imminent, and that he had that knowledge, or had the opportunity to acquire it sufficiently long in advance of its infliction to have prevented it with the force at his command." It is not because aparticular passenger is known by the carrier's servants to be in peril of injury at the hands of a fellow-passenger or stranger that a failure to use the means at command to protect him will be actionable negligence; but it is because *Page 626 there is a known or discoverable danger that an injury may be done to some passenger, and because no effort is made to avert that injury from all the passengers, that the carrier is liable if an injury is inflicted on one of the passengers when it could have been prevented. It is just as incumbent on the carrier to protect all his passengers from assault by a fellow-passenger when his servants have knowledge or the means of knowing that an assault on some one is imminent and when they have time and means to avert it; as it is to protect all his passengers from injuries likely to result from defective means or methods of transportation. Consequently it will not do to say, after an assault has been made, that the servants of the carrier did not know or could not have foreseen that the particular individual who was assaulted, would be injured by an assault, if they were apprised, or with proper care, could have known, of circumstances which indicated that some one would be injured unless the disorderly passenger or stranger were ejected or controlled.
Turning to the facts, the usual conflict between the witnesses for the plaintiff and defendant encountered in personal injury cases is found in the record; though there are some circumstances about which there is no controversy. It is quite a familiar doctrine that in dealing with a request to withdraw a case from the consideration of a jury the Court has nothing to do with the weight of the evidence, but is confined strictly to determining whether there is any evidence legally sufficient to sustain or justify a recovery. The truth of the evidence adduced on behalf of the plaintiff no matter how flatly contradicted, must, therefore, be conceded, except in very rare instances where it is physically impossible that it could be true. Upon the hypothesis that it is true the sole inquiry is, will it warrant a jury in finding a verdict for the plaintiff? If it will, then the case must go to the jury. If it will not then the jury should not be permitted to deal with it at all.
Now, it is not disputed that on Sunday afternoon, September the seventeenth, eighteen hundred and ninety-nine the deceased got on a car of the defendant railway company on *Page 627 South Charles street, going north; that at the corner of Charles and Cross streets a man named Geisenkotter boarded the same car; that Geisenkotter was very drunk, boisterous and disorderly; that he assaulted a passenger on the rear platform, and acted like a maniac. Either because of the assault which he made on the passenger upon the rear platform, or because of his violent and threatening conduct he was ejected from the car at the corner of Charles and Barre streets by the conductor and motorman. It is practically conceded that he was not a fit person to be upon the car which was quite crowded with passengers, and, therefore, that he was properly put off. But when the car started he again got on and though the conductor saw him get on and the motorman saw him after he was on, they did not at once make an effort to remove him. Though the car stopped at Charles and Conway streets, one square north of where Geisenkotter had re-entered the car after having been ejected, no attempt was made to remove him notwithstanding his continuous disorderly conduct. The next street north of Conway is Camden. The car stopped there but still no effort was made to put Geisenkotter off. From this point there is a divergence in the evidence. According to the testimony of the plaintiff's witnesses whilst the car was proceeding from Camden street towards Pratt street, Geisenkotter, without the slightest provocation assaulted Mr. Deane, striking him a vicious blow in the eye, which caused the rupture of a cerebral blood vessel and thereby produced paralysis and ultimately death. On the part of the defendant it was shown that an effort was made to eject Geisenkotter at Pratt street; that at each intersecting street search was made for a police officer, but none was found, and that after the car passed Baltimore street and before it reached Fayette street the fatal blow was struck. The company insists that it was not derelict in its duty to the passenger because its agents did not know and had no reason to apprehend that Deane was in imminent danger of injury at the hands of his drunken and disorderly fellow-passenger; and the question was asked during the argument, what did the employees fail *Page 628 to do that they ought to have done and which if they had done would have prevented the injury?
It may be true that there was no reason to suppose that Mr. Deane rather than any other passenger was in imminent peril. But that is not material. As already observed, it is not the peril which a particular individual is in that is to be considered in a case of this kind. If there is danger of any one being injured and the employes fail to remove, subdue or overpower the turbulent individual after knowing that there is danger or after they ought to have known that there was danger if they had exercised proper care; that failure is negligence for the consequences of which the company is answerable. So the case comes down to the inquiry, was there evidence tending to show that the employees of the defendant failed to do what they ought to have done under the circumstances?
There ought to be no difficulty in answering this question. If Geisenkotter, who had assaulted another passenger before he was ejected from the car, and who was drunk, disorderly and turbulent was properly put off the car because his presnce was a menace to other passengers, then it was the plain duty of the employees who put him off, to have kept him off. They demonstrated their ability to keep him off by having put him off. If he had beenkept off after having been put off he could not have assaulted Deane. Whilst his assault on the other passenger did not necessarily indicate that he would subsequently strike Mr. Deane, it did show that he was in a condition which rendered it very probable and likely that he would attack some one else, and this was known to the employees sufficiently long before the assault was made on Mr. Deane to enable the conductor not only to put Geisenkotter off, but to have kept him off the car. It cannot be doubted that if there was sufficient reason for putting Geisenkotter off the car so that injury to other passengers might be avoided, there was equally sufficient reason for keeping him off; and the failure to do this when there was power to do it was an act of negligence which caused the injury to and the *Page 629 death of Mr. Deane. If, on the other hand, every effort was made by the employees to avert the injury, but was made without success, then the company would not be liable. This was plainly said to the jury, and it was a question of fact which was properly left to them.
The eighth prayer was rightly rejected. It sought to exculpate the defendant unless the jury should find that after Geisenkotter re-entered the car the defendant's servants knew or should have known of the danger to the deceased. This prayer was faulty for two reasons. First, it eliminated all the facts that had preceded Geisenkotter's expulsion from the car and narrowed the investigation to the occurrences which took placeafter he had returned though the things which transpiredbefore he was put off explained and threw light on what happened after his re-entrance. Secondly, it undertook to confine the jury to a consideration of the danger to Deane though the company's liability depended, not on that fact, but upon the circumstance that any one was in peril.
Upon the whole record we think there was sufficient evidence to go to the jury on the question of negligence and it was their exclusive province to weigh its value and probative force. They evidently believed the version of the unfortunate affair which was narrated by the witnesses for the plaintiff, for they returned a verdict against the defendant, and it is not for us to say that they were mistaken in doing what they did. As no error was committed by the trial Court, the judgment will be affirmed with costs.
Judgment affirmed with costs above and below.
(Decided June 13th, 1901.) *Page 630