(113 A.) ton to the town of Rockville, in Montgomery spoke to him, but this is at variance with county, Md. As disclosed by the declaration, the ground upon which recovery was sought was the negligence of the conductor, a servant of the defendant company in charge of its car, in failing to protect the plaintiff from insult and injury caused by others, while the plaintiff was a passenger upon said car. The undisputed facts of the case are these: The plaintiff, 17 years of age and unmarried, and her sister, Maude Bettiker, 20 years of age, were employed in the city of Washington. On the 14th day of March, 1917, they visited their father, who lived in Potomac, Montgomery county, Md. After spending the day at their father's home, they, accompanied by their uncle, went to Rockville to take the 9:30 car of the defendant company for Washington. At this time there was a strike on the part of the conductors and motormen of said company, and the cars were running very irregularly. The plaintiff and her sister reached the station at Rockville about 9 o'clock, but the first car thereafter going to Washington did not leave Rockville until about 12 o'clock. When the plaintiff and her sister boarded this car they found on it only the motorman, conductor, and one Stanley Gingell, a deputy sheriff of Montgomery county, who at the time was also in the service and employment of the railroad company, having been employed by it because of said strike, to look after and protect its property from violence and prevent disorders. The sisters took seats about midway of the car on the right side of the aisle. At this time Gingell, whom they had "known all their lives," was seated in the upper end of the car, but after the car had gone a short distance to the limits of Rockville Gingell went back to where the sisters were seated, and, turning the seat of the car immediately in front of them, he sat upon it, next to the window, facing the sister of the plaintiff, who was seated next to the window on the seat occupied by her and the plaintiff, leaving the vacant seat beside Gingell directly in front of the plaintiff. No other persons boarded the car until it reached the car barns at or near the district line, where 10 or 15 men entered in a boisterous and loud manner, cursing, laughing, and talking loudly. After entering the car they were seen to have whisky, and this some of them drank while in the Gingell's testimony. It was while seated in this position that the offense complained of was committed by Padelli. The sister of the plaintiff, in relating the facts in connection with the acts and conduct of Padelli at such time, testified that shortly after the men boarded the car the conductor walked down to the back end of the car and then back to the front end and there stood. The car had on each side of the end a seat running parallel with the car, capable of holding four or five passengers, and in the central part short traverse seats on each side of the center aisle, each seat being designed for the occupancy of two persons. Padelli, who was across the aisle from them, and next to it, got up and came over and took the vacant seat by Mr. Gingell, who was talking to witness, and when so seated Padelli was directly in front of the plaintiff. When the car reached a place called McLean's Clock, about 10 or 15 minutes after Padelli had taken the seat by Gingell, she heard her sister cry "Stop!" to which Padelli replied "that he was just getting his hands warm," and when he did it again she again told him to "stop," but he would not do it. The conductor was at the time standing there, laughing at her, and made no effort to stop him. Mr. Gingell made him stop, and he got up and went into another seat. Gingell, when his attention was called by the "outcry," made upon the second occasion, reached over, grabbed Padelli's hand, and after a struggle succeeded in breaking his hand away, and pushed him into the aisle. Padelli she said had his hand under her sister's clothes for about two minutes, and at such time the conductor was two or three feet away, laughing at him. Later in her testimony she stated that at such time the conductor was standing "in front of us, about two or three seats up." She further testified that the conductor at times was in the rear, and at other times in the front of the car, and "at the time of the occurrence mentioned the conductor was walking backwards and forwards, and was a considerable distance from them at various times, and talking at times with other people in the car, and may have been looking at other people in the car." She did not know he was laughing at them, though he was looking at them. The plaintiff testified that when she first felt the man's hand upon her "limb" she "cried out," and he replied that he was simply trying to warm his hands, and she supposed that was true. She then did not doubt his word, as there was a radiator under the seat on which she was sitting. She said at that time Gingell "did not notice the action, and there was nothing unusual to attract his attention." About two minutes later "he put his hand under my dress, and caught hold of my leg above the knee. I called the conductor, who was standing at the end of the | he had his hand upon her knee, at that time seats. I don't know how many seats away. the conductor was standing just over Padelli, having his hand upon the back of that seat, and the other hand upon the back of the seat across the aisle, and he just stood there and laughed. The witness grabbed Padelli's hand with one of his, looked up at the conductor, and said to him, “Take this damn fool away from here,' whereupon he grabbed the assailant with both of his hands and tried to break his hold upon the young girl, and I got it off, but he kept pushing as I took it off, and insisted on going as far as he could; and after a struggle lasting two or three minutes he finally succeeded by striking him with his fist on the side of the head, and knocked him * He was at the end of the car." And at that moment when Padelli had hold of her leg she called Mr. Gingell, who was talking with her sister, and sitting alongside of Padelli. She called to Gingell because she supposed he was not paying any attention to Padelli. * * If he had been he would have done something, as he was not more than two or three feet away, and was a deputy sheriff." She testified that Padelli was seated immediately in front of, and facing her for 10 or 15 minutes before the act mentioned, and during that time sat there quietly while she talked to Gingell and her sister. She further testified that Padelli was a perfect stranger to her and her sister, and neith-down in the aisle," after which there was no er had spoken to or looked at him on the car, further trouble. The witness subsequently and did nothing to invite his attention; that stated, however: at the time Gingell was "tussling" with Padelli, the conductor, who "was standing at the end of the seats in the end of the car up towards the front," did nothing, just stood and laughed. "She could not tell that his vision was directed directly at the seat and what this man was doing, but he was standing there looking on, and was in a position where he might have seen if he had looked in her direction." She could not say the conductor was laughing at what she had said or something else. She also testified that Padelli put his left hand on her right leg; "that it was possible that the conductor did not see what this man was doing at the moment; that she was sitting with her legs crossed." Gingell, when called by the plaintiff, testified that he at the time was deputy sheriff of Montgomery county, and was employed by the defendant company for the protection of its property from violence and to prevent disorders; and that on the occasion mentioned he "was riding on that car to prevent or detect trouble or disorders that were occur ring"; and that the same was known to the conductor; and that he "was employed and paid by the railroad company" for such services. He further testified that the cars were being operated by a crowd of men known as "strike breakers," and that the men who boarded the car at the barns were men whose faces he knew as members of the strike breaking crowd, but did not know their names. He then spoke of the act of Padelli, saying that while he was talking to Miss Bettiker, plaintiff's sister, his attention was directed to the plaintiff, when she first called or cried out to the man seated beside him to "Stop," that a few minutes thereafter she again called out in a loud voice, "Stop!" and appealed to the conductor to "make this man stop." He looked and saw this man's hand about the knee, and she was fighting him trying to get his hand away "and finally I hollered to the conductor, and by that time That he "did everything he could do to prevent Padelli's action, but did nothing on the first occasion, as he did not know what had happened. That the next time she hollered he looked at the conductor and at Padelli, and saw where his hands were, and acted at once, did not fool away any time. 'I grabbed him and hollered to the conductor.' That soon after the men got on the car, and were drinking. Both girls were looking around at the men as they drank. The girls called witness' attention to the fact that the man who was sitting next to Padelli was drinking, and a few minutes after that Padelli came over and sat down by the witness, but neither spoke to the other. This was probably two squares from the car barn. The first time witness heard Mrs. Pugh say 'Stop,' and Padelli said he was warming with his hands down on a slant and off of his his hands, Padelli was sitting halfway turned, lap, and between the two girls; I think Mrs. Pugh's leg was crossed. It was his left hand that he put on her leg; but it was not touching me. That when Mrs. Pugh first said, 'Stop!' I did not look, and did not see his hand, and at the second time she hollered I did not look; and when Padelli said he was warming his the edge of the seat. Mrs. Pugh had her legs hands, his hands were kind of sticking over crossed, and that would give a better view of his hands if you looked down; witness saw Padelli's hand over near Mrs. Pugh's skirt. At the time she hollered to the conductor, witness grabbed him at once with his right hand. Padelli kept pushing and insisted on catching hold again, and witness hit him and knocked him down into the aisle. Witness done this as quickly as it could be done under the circumstances." At the conclusion of the evidence the court, at the instance of the defendant company, granted a prayer, directing a verdict for the defendant because of a want of evidence legally sufficient to entitle the plaintiff to re cover. [1, 2] The law applicable to this case is, we think, very clearly enunciated in an opinion of this court by Chief Judge McSherry, in Tall v. Baltimore Steam Packet Co., 90 Md. 253, 44 (113 A.) are [3] In deciding whether the court below properly ruled in directing a verdict for the defendant because of the fact that the evidence offered was legally insufficient to entitle the plaintiff to recover, we will apply the law as above laid down to the facts of this case. Atl. 1008, 47 L. R. A. 120. In that case the [80 Md. 30, we said: If a conductor 'has the opportunity to prevent an assault on a pascourt said: "A carrier is not an insurer of the absolute senger in his charge, it is his duty to do so, and his failure to make a reasonable effort to prosafety of his passengers, yet he is bound to use reasonable care according to the nature of tect the passenger from such assault would his contract; and, as his employment involves make the company responsible.' Or, as differently expressed in Ill. Cen. R. R. Co. v. Minor, the safety of the lives and limbs of his pas-69 Miss. 710, 'a common carrier is required sengers, the law requires the highest degree of care which is consistent with the nature of his to protect a passenger from an unprovoked asundertaking. B. & O. R. R. Co. v. State, Use sault of a fellow passenger, if the conductor knew that it was threatened, and could have of Hauer, 60 Md. 449. This, though the measure of the carrier's duty, as between him and prevented it with the assistance of employees his passenger in respect to the acts or omis- and willing passengers.' S. c., 16 L. R. A. 627, sions of the carrier and his servants towards and copious notes. The overwhelming weight the passenger, is not the standard by which his of judicial precedent sustains this view of the carrier's liability in such instances as liability to the passenger is to be gauged or determined when intervening acts of fellow presented by the record before us. N. J. Steampassengers or strangers directly cause the in-boat Co. v. Brackett, 121 U. S. 645; Lucy v. jury sustained whilst the relation of passenger Ch. Great West. Ry. Co., 64 Minn. 7; s. c., and carrier is subsisting. Such an injury, due 31 L. R. A. 551; Ball v. C. & O. Ry. Co., 93 in no way to defects in the means of transpor-Va. 44; s. c., 32 L. R. A. 792; Britton v. A. tation, or to the method of transporting, or to & C. A. L. R. Co., 88 N. C. 536; 5 Am. & an actual trespass by an employee whilst the Eng. Ency. Law (2d Ed.) 553." 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. It springs from a condition, not of the carrier's, but of a third party's creation, coupled with a knowledge by the carrier's servants that the condition exists, and with time enough intervening between the acquisition of the knowledge and the infliction of the injury to enable the servants of the carrier to protect the passenger from the third party's misconduct. 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. If this were not so, the mere tort of a fellow passenger or a stranger would constitute of itself the negligence of the carrier, and the carrier would be held answerable for wrongful acts of a third party, though the carrier's servants were, without fault, ignorant of the third party's purpose to make an assault, and were, consequently, unprepared to avert it. Such a rule would make the carrier an absolute insurer of the safety of the passenger against the wrongful conduct of third persons, though, as between the carrier and the passenger in ordinary cases, the carrier's liability is made to depend on his or his servant's negligence. In B. & O. R. R. Co. v. Barger, There is certainly no evidence that the conductor had any knowledge, or with proper care could have had knowledge, that the assault upon the plaintiff was imminent, for there was nothing in the conduct of Padelli to excite the apprehension of even those sitting beside him that he contemplated such an assault. The plaintiff herself says after moving to the seat immediately in front of and facing her, and in close proximity to her. he sat there quietly for 10 or 15 minutes. while she, her sister, and Gingell were engaged in conversation, and not until she felt his hand on her leg did his presence so near to her give her any fear or anxiety, as to his contemplated movements in relation to her, and, whatever apprehension or alarm this act of his caused her, it was soon allayed by his reply, which she said she believed to be true, and her request to him to "Stop" could not have been expressive of much alarm, for it did not arouse the apprehension of either her sister or Gingell, who were sitting so close to them. In fact the plaintiff, in explaining why Gingell's attention was not attracted to her when she first told Padelli to stop, said, that "there was nothing unusua! to attract his attention." Now if the attention of Gingell and her sister who at the time were seated so near her was not attracted by what was being done by Padelli, or by what has been termed by some of the witnesses as the "outcry" of the plaintiff, why should the attention of the conductor have been attracted to the conduct of Pa delli, when by the testimony of all those who testified as to his position at such time he was much further removed from the scene of ductor had knowledge, or with proper care the trouble. Gingell, whose duty it was, as much so as that of the conductor, to protect the plaintiff while a passenger upon the car, though seated near both Padelli and the plaintiff, and only a few minutes before had heard the plaintiff tell Padelli to stop what he was doing, never it seems suspected a renewal of the assault, and it was not until his attention was called to it the second time did he become aroused to the necessity of doing something to relieve the situation, and then for the first time the conductor was called upon to protect the plaintiff. At such time it will be remembered Gingell and Padelli were occupying one of the seats of the car, Gingell seated to the right of Padelli, with his right hand next to the left hand of Padel11, which the latter used in the assault upon the plaintiff; and Gingell says that upon her call to him at such time he called the conductor, but did not wait, but grabbed Padelli's hand at once with his right hand, and, while Padelli "kept pushing and insisting on catching hold again," he hit him and knocked him down in the aisle. Gingell was in a much better position to extricate the hand of Padelli from the position it was in than the conductor, who was at the time several seats away, as stated by the plaintiff, and no doubt Gingell succeeded in removing the hand of Padelli much more speedily than the conductor could have done. There is certainly no evidence that the con could have had knowledge, that the assault was imminent, or, if so, did not have such knowledge sufficiently long in advance of the infliction of the assault to have prevented it. Nor is there any evidence that had the conductor interfered he could have ended the assault more speedily. As stated in Tall v. Steam Packet Co., supra: "The carrier's liability does not, in such cases, depend upon the naked fact that an injury happened. If it did, as already remarked, the measure of his duty would be that of an absolute insurer. But it depends on the fact of an injury and the concomitant fact that the negligence of the carrier's servant, in omitting to prevent the doing of the act which produced the injury, actually caused the injury. Proof then must be of both of these constituent elements of the plaintiff's cause of action." [4] While the conduct of the conductor was most reprehensible, if the evidence of some of the witnesses be true, nevertheless the defendant should not be held liable therefor, unless the conductor knew, or with proper care could have known, of the imminence of the assault in time to have prevented it, and did not do it. As there is no evidence in our opinion, showing such facts, the court below acted properly in directing a verdict for the defendant. The judgment will therefore be affirmed. Judgment affirmed, with costs. 1. Criminal law 982-Penciled memorandum as to sentence to be imposed in case certain conditions not complied with held not within court's power. Respondent pleaded guilty of illegal possession of intoxicating liquors, and the court, without imposing sentence, ordered the case placed on the special docket. Following the docket entries, there was written in pencil: "Resp. is to leave county permanently within 2 weeks. If in trouble over liquor law anywhere in state within 1 year, is to be sentenced on this to $1,000 and 1 year in jail." Held, the penciled memorandum formed no part of the sentence or judgment, being beyond the power of the court. 2. Criminal law 982-No violation of judicial discretion in sentencing accused contrary to terms of void penciled memorandum. Where the court did not sentence respond ent upon his plea of guilty, but ordered the case placed on the special docket, and, following the docket entries, there was a penciled memorandum that respondent was to leave the county permanently within two weeks, and, if in trouble over the liquor law within one year, to be sentenced to a certain fine and imprisonment, the court did not abuse its judicial discretion in sentencing respondent at the next term or court, though respondent returned to the county, not in violation of the restriction imposed, but to prepare the defense of a civil suit against him, and had not violated the Prohibition Law, such facts being dehors the record and immaterial, the memorandum being void. 3. Criminal law 982-Court may place case on special docket or continue it to subsequent term for sentence. Edward O. Welch pleaded guilty to illegal possession of intoxicating liquors. His case was placed on the special docket, and he was sentenced at the next term, and he excepted. Exceptions overruled. Argued before CORNISH, O. J., and SPEAR, HANSON, PHILBROOK, DUNN, WILSON, and DEASY, JJ. H. E. Holmes, of Lewiston, for plaintiff. Benjamin L. Berman, Co. Atty., of Lewiston, for the State. CORNISH, C. J. Writ of error before the law court under R. S. c. 82, § 47. The rec ord facts upon which the writ is based are these: At the October term, 1920, of the superior court for Androscoggin county, the plaintiff in error pleaded guilty to a complaint for illegal possession of intoxicating liquors, and the court, without imposing sentence, ordered the case placd on the special docket. At the December term, 1920, according to the recorded judgment: "The case is ordered brought forward from the special docket, and it is considered and ordered by the court that the said Edward O. Welch forfeit and pay the sum of $300 to and for the use of the state and the costs of prosecution taxed at $7.30, and in addition thereto be imprisoned at labor in our county jail at Auburn in said county for the term of four months, and in default of payment of said fine and costs be imprisoned at labor in said jail for the term of six months additional, and stand committed in execution of this sentence." The docket entries are as follows: "Oct. T. 22, Retracts, pleads guilty, S. D." And then follows this in pencil: "Memo. Resp. is to leave county permanentIf in trouble over liquor law anywhere in state within 1 year, is to be sentenced on this to $1,000 and 1 year in jail." A court of general criminal jurisdiction may for a good cause place a case on the specially within 2 weeks. docket or continue it to a subsequent term for sentence while retaining jurisdiction of the person and cause, placing on the special docket being the same as placing an indictment on file. 4. Criminal law 982-Length of time case can remain on special docket before sentence within discretion of court. The length of time during which a case can remain upon the special docket before being brought forward for the imposition of sentence is within the discretion of the court. 5. Criminal law 982-Court placing cause upon special docket not compelled to place respondent in charge of probation officer. Then the docket entries at the December term are in the usual form: "Dec. T. 11. Sentence Ordered forward. $300 and costs and 4 months. In default 6 months additional. Mit. issued." [1] The pencil memorandum quoted above formed no part of the sentence or judgment. It did not purport to do so. Its apparent purpose was to remind the court of the circumstances if the case should be brought forward in the future for sentence. It had no binding effect upon any one. Even the court did not follow it when sentence was The judge then pronounced in December. imposed a find of $300 instead of the suggested $1,000, and an imprisonment of four months instead of one year. The judge at the October term had the power to impose Exceptions from Supreme Judicial Court, sentence then, to be immediately executed, Androscoggin County, at Law. or to suspend the execution of it, or to defer Where respondent pleaded guilty of illegal possession of intoxicating liquors, the court in withholding sentence and placing the cause upon the special docket was not compelled to place respondent in charge of a probation officer; the Probation Act of 1909 (Rev. St. c. 137, §§ 1024) being discretionary. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |