
    BURCH v. THE BALTIMORE & POTOMAC RAILWAY CO.
    Railroads; Trespassers; Negligence; Verdicts.
    1. A railroad company is justified in ejecting- from its train, at any safe place along its line, one who is a trespasser and who is capable of taking care of himself; and the fact that there is a storm pending, and a possibility that he may be caught in it, does not. require that he should be put off only at a regular station.
    
      2. Questions of negligence and contributory negligence are ordinarily questions of fact for the jury; but when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the jury and direct a verdict.
    No. 215.
    Submitted May 11, 1894.
    Decided June 4, 1894.
    Hearing on a bill of exceptions by the plaintiff in an action for damages for personal injuries.
    
      Judgment affirmed.
    
    The Court in its opinion stated the case as follows:
    The appellant, Joseph R. Burch, who was the plaintiff in the court below, is a resident of a place named Landover, Prince George’s county, in the State of Maryland. On Saturday, the 17th of May, A. D. 1890, he purchased from the Baltimore and Potomac Railroad Company a round-trip ticket, good for two days only, entitling him to transportation on the trains of that company, from Landover to Washington and back from Washington to Landover. He did not attempt to return until Tuesday, the 20th of May, A. D. 1890, when the privilege given by the ticket had expired. On the morning of that day he boarded the train which left the company’s station in the city of Washington about 6.15 A. M., and when the conductor came through the train, somewhere in the neighborhood of the trestle-work bridge over the Eastern Branch of the Potomac river, to collect the fares of the passengers, the appellant handed him the ticket which has been mentioned. The conductor, after examination, declined to accept it, and informed the appellant that he would have to pay his fare. To this the appellant made objection. The conductor passed on to finish the collection of his fares, and then returning demanded payment of the appellant, and told him that if he did not pay he would have to get off. This the appellant said he would not do. The conductor stopped the train at a little station or platform on the east side of the bridge, known as Anacostia, generally used for workmen on the road, although occasionally also, it seems, for the purpose of passengers to get off for the village of Anacostia; and there compelled the appellant to leave the train, using no more force apparently than was necessary for the purpose. Six or eight other persons bound for Anacostia got off at the same time.
    As already stated, there was a platform at this point for the use of passengers and of the employees of the company, at the end of which was a telegraph tower, with a lower story said to be about ten or twelve feet square. The sun was shining brightly at the time, but a storm, apparently of considerable violence, was coming up from the west. The appellant proceeded in the face of this storm to walk back over the trestle-work, and was there caught by the fury of the wind and rain, which was so severe as to compel him to sit down on the track between the rails to prevent himself from being blown off the bridge. Finally he succeeded in escaping from his perilous position and got back to the residence of his daughter, near the Navy Yard, where he had been visiting. The result of his exposure to the elements was a severe cold. Thereupon he sued the railroad company to recover damages.
    It may be added that there is some contrariety of testimony as to the extent and character of the accommodations afforded by the platform and telegraph station at Anacostia, for the accommodation of passengers; and also as to the propinquity of any dwellings or residences. It was testified by witnesses for the company that there were several buildings within a radius of a mile or a mile and a quarter, and some as neat as three-quarters of a mile; while the appellant, who was evidently in a great rage, testified that he saw none.
    At the trial in the court below,, the justice holding the court instructed the jury peremptorily to return a verdict for the defendant, which was accordingly done. And from its judgment the present appeal has been prosecuted.
    
      Mr. A. S. Worthington for the appellant:
    1. It was error for the court to take the case from the jury, if, upon any view of the facts consistent with the evidence, or upon any inference that might reasonably be drawn from such facts, the defendant was guilty of negligence or unlawful conduct in expelling the plaintiff from the train, and exposing him to the approaching storm. Dunlap v. R. R. Co., 130 U. S., 649; R. R. Co. v. Powers, 149 U. S., 43; R. R. Co. v. Cox, 145 U. S., 606.
    2. One reasonable conclusion to be drawn from the evidence was, that the conductor took up the plaintiff’s ticket while the train was in the city of Washington in ample time to have stopped the train and put him off on this side of the trestle-work, but that the conductor accepted the ticket and went into another car and did not tender the ticket back or demand payment of fare until the train had crossed the Eastern Branch. This so changed the situation of the passenger that the right to put him off, if it ever existed, was gone. Hutchinson on Carriers, Secs. 544, 545.
    Another reasonable, and indeed necessary, conclusion from the evidence was, that, considering the plaintiff’s age (75 years) and bewilderment and that he was acting in good faith, the defendant had no right to expel him in the face of the threatened storm, and that after being expelled he was not guilty of negligence under all the circumstances in seeking immediate shelter by crossing the river by the nearest available route, and the only route which was known to him.
    3. But the principal and controlling question in the case is whether the telegraph tower referred to in the evidence was intended for the accommodation of passengers, and whether the plaintiff in failing to seek shelter in that tower was so manifestly guilty of contributory negligence as to warrant-the court in taking the case from the jury. The court below told the jury in so many words that that tower was provided for the accommodation of passengers. This court is invited to scrutinize the testimony to find any evidence whatever that justified even the suggestion of such a conclusion. The conductor was clearly wrong in putting the plaintiff off at “Anacostia.” He should have carried him to Bennings, the first regular station, a mile or two far-, ther on, and the whole trouble would have been avoided. Ray on Imposed Duties of Carriers, pp. 211, 212, 221-224; R. R. Co. v. Sullivan, 81 Ky., 630 ; Van Kirk v.R. R. Co., 76 Pa. St., 75 ; R. R. Co. v. Casey, 52 Tex., 122 ; R. R. Co. v. Turner, 22 S. W. Rep., 83 (Texas, 1893); Gallena v. R. R. Co., 13 Fed. Rep., 82; Arnold v. R. R. Co., 115 Pa. St., 135 ; Malone v. R. R. Co., 152 Pa. St., 393.
    The last mentioned case is precisely in point, and upon the authority and reasoning of that case alone this appeal might well be submitted.
    4. That the plaintiff was entitled to recover damages for the injury to his health resulting, from exposure to the storm while seeking a place of shelter, see 1 Sedgwick on Measure of Damages, Sec. 150; Id. Secs. 862, 863, 865, note E.
    
      Mr. Enoch Totten for the appellee.
   Mr. Justice Morris

delivered the opinion of the Court:

We are of opinion that that court was entirely right in its decision.

In the argument before us, it was conceded that the appellant was a trespasser on the company’s trains; that he was there without right; that his ticket was worthless; and that the company was fully justified in ejecting him from the train. The sole question made before us was whether there was justification for ejecting him, at the time and placfe, and under the circumstances of the ejectment. It was urged that he should not have been put off in the face of the coming storm, and at a place where there was no shelter provided for him; and that he should have been carried to the next regular station and there put off. And it is* claimed that it ought to have been left to the jury.to determine whether the place was a safe place, and whether there was contributory negligence on the part of the appellant as charged.

We cannot for a moment entertain the theory that a railroad company, finding a trespasser upon one of its trains who has no right to be there and whom it is entitled to remove, cannot eject him except at some regular station of the company. The establishment of such a theory would break up the business of all the railroads in the country. If persons intent on defrauding railroad companies “may lawfully insist upon being carried from station to station before being ejected, it is not apparent why they would not thereby be enabled, by re-embarking upon subsequent trains, to ride the whole length of a road and all the time without payment of fare. The theory is utterly untenable; and indeed we understand that it was disclaimed in argument by counsel for the appellant, although he cited authority for the position. The claim, however, is virtually made in the appellant’s brief, where it is said that “ he (the conductor) should have carried him (the appellant) to Bennings, the first regular station, a mile or two further on, and the whole trouble would have been avoided.” There is no such obligation upon a common carrier; and we do not deem it necessary to discuss this subject further. McClure v. R. R. Co., 34 Md., 532.

Neither do we find any provision of the law that requires a railroad company to provide shelter for a trespasser whom it is compelled to eject from its train, or to see that he incurs no risk from the inclemency of the weather or the fury of the elements. It owes no duty whatever to such trespasser, other than the duty enjoined by our common humanity to abstain from unnecessary violence and to forego the exercise of its right under circumstances that savor of harshness and cruelty. It may not eject him with undue violence. It may not eject him at an unsafe or dangerous place — upon a trestle-work, for example, or in a marsh, or in a desert, or upon a bank of snow. Then again, when such a trespasser is a person more or less incapable of taking care of himself — - a child, a lunatic, an imbecile, a person under the influence of intoxicating liquor — considerations of humanity will demand that he receive different treatment from that awarded to the ordinary adult man in the full possession of all his faculties, as was the plaintiff in this case. With due regard to these humane requirements, the railroad company was justified in ejecting the appellant from its train at any point upon the route; and it was his own fault exclusively if misfortune followed.

No reasonable man can doubt that the platform upon which the appellant was put off the train, whether it was a regular station or not, or whether it was for the use of passengers or merely for that of employees, was a safe place; and that, if the plaintiff had remained there until the storm passed, he would have been saved his severe experience on the bridge, and probably all the consequences of his exposure- — and that, too, whether there was a place of shelter there or not. That there was a place of shelter in which he might have taken refuge is very evident. But this we regard as wholly unimportant. All that he was entitled to have was to be put off at a safe place; and the place at which he was ejected was undoubtedly a safe place, upon his own testimony, even in the face of an impending storm. It is not unusual for men to be out in storms; and it would certainly be extraordinary to require that a railroad company should not exercise its undisputed right of ejectment because there was a possibility that the person ejected might be caught in a storm.

The case of Malone v. R. R. Co., 152 Pa. St., 393, is cited to the contrary. But there the court, in its opinion, distinctly states that the plaintiff had been improperly and unlawfully ejected from the train; and it was a case of a woman put off at an unusual place, caught in a storm without shelter, dazed and confused at the novelty of the situation and the unusual circumstances. It was a case both of unlawful expulsion from the train and of expulsion under circumstances that constituted inhumanity. We find no evidence of any such circumstances in the present case, and we are satisfied that there was nothing whatever in the case that would justify its submission to a jury. We regard as entirely appropriate to it the language of the Supreme Court of the United States, by Mr. Justice Brewer, in the recent case of Elliott v. R. R. Co., 150 U. S., 245 :

“ It is true that questions of negligence and contributory negligence are ordinarily questions of fact to be passed upon by a jury; yet when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the consideration of the jury and direct a verdict.”

Entertaining these views, we are of opinion that the judgment of the court below should be affirmed, with costs ; and it is so ordered.  