(108 A.) [1, 2] It is said in 9 R. C. L. § 11, p. 252, that The court below, after hearing the testi- [ conduct ought to produce that effect? Whether mony, passed a decree on April 27, 1919, the consortium is reasonably lost, and whether dismissing the bill of the wife, and granted the party quitting has not too hastily abandoned the husband an absolute divorce. The appeal the consortium. The same learned judge in the before us was taken by the wife from that same opinion declares: 'Marriage is the most solemn engagement which one human being can decree. Before adverting to the facts, it contract with another. It is a contract formed may be well to refer to certain principles with a view, not only to the benefit of the parof law which must guide us in the disposi- ties themselves, but to the benefit of third partion of the case. ties; to the benefit of their common offspring, and to the moral order of civil society. To this contract is superadded the sanctity of a religious vow. * There are undoubtedly cases for which a separation is provided, but it must be lawfully decreed by public authority and for reasons which the public approves.' "Mere turbulence of temper, petulance of manners, infirmity of body or mind, are not numbered amongst those causes. When they occur, their effects are to be subdued by management, if possible, or submitted to with patience; for the engagement was to take for better, for worse, and painful as the performance of this duty may be, painful as it certainly is in many instances, which exhibit a great deal of misery that clouds human life, it must be attempted to be sweetened by the consciousness of being a duty, and a duty of the very first class and importance.' "Marriage is a relation in which the public is deeply interested and is subject to proper regulation and control by the state or sovereignty in which it is assumed or exists. The public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together, and to prevent separation. This policy finds expression in probably every state in this country in legislative enactments designed to prevent the sundering of the marriage ties for slight or trivial causes, or by the agreement of the husband and wife, or in any case except on full and satisfactory proof of such facts as by the Legislature have been declared to be cause for divorce. Such provisions find their justification only in this well-recognized interest of the state in the permanency of the marriage relation. The right to a divorce exists only by legislative grant, the marriage contract in this respect being regulated and controlled by the sovereign power, and not being, like ordinary contracts, subject to dissolution by the mutual consent of the contracting parties, but only for the causes sanctioned by law. As said by the federal Supreme Court [125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654]: 'Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the once formed, the law steps in and holds the parties to various obligations and liabilities, It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.' In Childs v. Childs, 49 Md. 513, our predecessors said: ""The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. *** That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the question occurs, what is cruelty?' Declining to define the term the learned judge declares: 'It is the duty of the courts, and therefore the inclination of the courts, to keep the rule extremely strict. The causes must be grave and weighty, and such as show an absolute impossibility that the duties of the married life cannot be discharged. In a state of personal danger no duties can be discharged, for the duty of self-preservation must take place before the duties of marriage, which are secondary both in commencement and in obligation; but what falls short of this is with great caution to be admitted.' The rule of 'per quod consortium amittitur' is but an inadequate test, for it still remains to be inquired what 99 When parties enter into the marriage relation, they accept each other with all their imperfections, and the law will not dissolve the relation except upon the clearest and most satisfactory proof of the necessity for the dissolution. It was said by Judge Alvey in Shutt v. Shutt, 71 Md. 193, 17 Atl. 1024, 17 Am. St. Rep. 519, that interfere to furnish relief against all the trou"It is quite certain that the courts cannot bles and distresses that may exist in the matrimonial relation. By far the greater number of these must be left to the good sense and judicious management of the parties themselves. ** * As has been said by a great authority (Lord Stowell), it is the law of religion, and the law of the country, that the husband is intrusted with authority over his wife. He is to practice tenderness and affection, and obedience is her duty." [3] The bill filed by the wife was for a decree a mensa. The charges of cruelty, nonsupport, and adultery are not supported. The parties were in very moderate and limited circumstances. His trade was that of a carpenter, and, while the wife in conducting the household and providing for the children many times endured hard conditions and the inconvenience of poverty, the testimony is not sufficient to warrant us in holding that the husband failed to support her to the extent that his means permitted. The domestic life of the parties was not happy. There was much contention and many quarrels in the home. This condition was not due alone to the conduct of the wife. due alone to the conduct of the wife. He did not do his duty. He owed more to her than mere food and clothing. He did not treat her with proper consideration and does not appear to have had any affection for L her. He absented himself from his home, donment and desertion on his part entitling This conclusion, which follows from the Decree reversed, with costs, and cause remanded. (135 Md. 307) ings, appellate court will determine correctness of instructions entirely by consideration of the evidence. 2. APPEAL AND ERROR 927(7)-PLAINTIFF'S TESTIMONY ASSUMED TRUE ON APPEAL FROM Appellate court, in passing on action of trial court in directing verdict for defendant, must assume the truth of the facts shown by plaintiff's testimony. 3. CARRIERS 282-ORDINARY CARE REQUIRED FOR SAFETY OF BOY PERMITTED TO RIDE ON OUTSIDE OF STREET CAR. Conductor, who permitted boy to jump on outer side of back platform of car for purpose of riding across bridge, and hold onto bar outside of safety gate, was required to exercise he became aware of his dangerous situation, ordinary care for the safety of the boy after when car failed to stop on other side of bridge and started to increase its speed, and to stop car to let boy off or open safety gate and admit him to rear platform. 4. RAILROADS 359(1)-ORDINARY CARE TO WARD TRESPASSER REQUIRED. Railroad's duty to trespasser on tracks is merely to exercise ordinary care for his preservation after discovery of his peril, and to refrain from inflicting willful or wanton injury. Appeal from Baltimore Court of Common Pleas; Robert F. Stanton, Judge. Suit by Alexander R. Carr, an infant, by his mother and next friend, Katherine M. Carr, against the United Railways & Electric Company of Baltimore. Judgment for defendant, and plaintiff appeals. Reversed and new trial awarded. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. Richard A. Miller, Jr., and Austin J. Lilly, both of Baltimore, for appellant. J. Stanislaus Cook and J. Pembroke Thom, both of Baltimore, for appellee. BURKE, J. [1] Suit was brought by Alexander R. Carr, an infant, by his mother and next friend, against the United Railways & Electric Company of Baltimore, a body corporate, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. At the conclusion of the plaintiff's case the court granted three prayers: First, that there was no evidence legally sufficient to entitle the CARR v. UNITED RYS. & ELECTRIC CO. plaintiff to recover; second, that there was OF BALTIMORE. (No. 30.) (Court of Appeals of Maryland. Dec. 9, 1919.) no evidence of any negligence of the defendant, its agents and servants, which was the direct and proximate cause of the injury; and, thirdly, that the plaintiff was guilty of negligence which directly contributed to the cause of the injury sued for. Where prayers granted by court, directing Neither of the prayers refers to the pleadverdict for defendant, do not refer to the plead-ings; and, in the absence of such reference, BY CONSIDERATION OF EVIDENCE ONLY. (108 A.) the correctness of the instructions must be determined entirely by a consideration of the evidence. This is firmly settled in our practice. In obedience to these instructions, the jury found their verdict for the defendant, and from the judgment entered thereon the plaintiff has brought this appeal. end of the bridge, where the plaintiff intended to alight. What took place at that point is thus described by the plaintiff: "As the front part of the car got on land the conductor gave two bells, and it started ahead, and I was scared to jump on account of the fact there was some pebbles down there, and there was a hole about that big (indicating), and another car came around at the same time, and was scared of getting hit by the other car, so I just kept on riding." I The following facts appearing in the evidence adduced in support of the plaintiff's case are all that need be stated to enable us to dispose of the legal questions raised From that point to the Penwood crossing upon the record: The defendant owns and the car ran with great rapidity, the plainoperates an electric railway, which runs tiff clinging to the bar in full view of the through Baltimore city to Bay Shore Park, conductor. The plaintiff thought the car in Baltimore county. On June 3, 1916, the was running at the rate of 40 miles an plaintiff, who was then about 15 years of hour. It slackened its speed at the curve age, attended a Sunday school picnic at Pen- mentioned, but when it had gotten around wood Park in Baltimore county. This park the curve the conductor gave two bells, and was located some little distance from the the car increased its speed. The plaintiff line of the defendant's road, and there was testified that: a roadway leading from the defendant's tracks to the park, At the intersection of this road with the defendant's right of way, which it crosses at grade, there is a platform provided for passengers to alight from or enter the cars, but it does not ap pear to be a regular stopping place. Approximately one-half of a mile eastward from the Penwood Park crossing the defendant's road crosses Jones' creek over an open bridge owned by the defendant. There is no railing or other protection on this bridge, and no boards or ways provided for pedestrians to walk across it. It is a drawbridge. At the west end of the bridge there is a stopping place at grade similar to that at the Penwood Park crossing. Between that crossing and the bridge the track is of Trail construction, and there is a curve in the track beginning a short distance from the Penwood crossing. From the stopping place at the west end of the bridge there is a path which leads through the woods to the lighthouse, and from there to Penwood Park. The plaintiff used the defendant's road in going to the picnic. He got off at the Penwood crossing and went to the park. He and three companions afterwards went over to the bridge, and walked across the ties to the east side, where they rented a boat. After having returned the boat, he and his companions walked back across the bridge on their return to the picnic grounds. One of the defendant's cars, going west, approached and stopped at the draw. The plaintiff asked the conductor, who who was standing on the back platform of the car, to let him ride across the bridge, and was told by the conductor to "jump on." Thereupon the plaintiff got on the outer left-hand side of the rear platform, and held on to the bar in front of him. The safety gate on that side was closed. The car went slowly across the bridge, but did not stop at the "When it had speeded up the jar was so great that it broke my hold and threw me right off, and my head went up in the air, and that is all I know." Several witnesses testified as to the rapid speed of the car at the time the plaintiff was injured. One said it was going as fast as he had ever seen a car go. The plaintiff was thrown in the air, and fell in between the car tracks. The car did not stop. The plaintiff was seriously and permanently injured. [2] Assuming, as we must do in passing upon the prayers, the truth of the facts to which we have referred, we are of opinion that the court below fell into an error in withdrawing the case from the jury. The conductor, upon the request of the plaintiff, gave him permission to get on the car for the purpose of riding across the bridge. There was an implied understanding that he would get off at the end of the bridge, but at that point the conductor speeded up the car, and because of that fact and the other conditions referred to by the plaintiff he was unable to alight in safety. The speed of the car was rapidly increased, and his hold upon the bar was broken by the jarring or jerking of the car. There can be no question that in the distance between the bridge and the Penwood road crossing, where the plaintiff fell, the plaintiff was, by reason of the rapid movement of the car, in a dangerous and perilous position. His peril was open and obvious to the conductor, who stood beside him during the entire distance. A boy in that situation is apt to be overcome by fear and lose his presence of mind and his power to protect himself. The conductor must have been aware of his peril, and could easily have saved him, either by stopping the car or opening the safety gates and admitting him to the rear platform, but he not only did nothing to save him, but manifested no interest in him, ei- narily a mixed question of law and fact, but ther before or after he was injured. [3] Under the facts herein stated, it was the duty of the conductor to have used ordinary care for the safety of the plaintiff after he became aware of his dangerous situation. In the note to Peterson v. South & Western Railroad, 8 L. R. A. (N. S.) 1240, it is said that "The uniform holding of all the courts on the subject is that, where a person, without invitation from or compensation to the railroad company, goes upon its cars for a purpose wholly his own, and in which it has neither interest nor concern, with its bare permission or acquiescence, he is a mere licensee, to whom the company owes no duty except to use ordinary care for his preservation after discovering his peril, and to refrain from inflicting willful or wanton injury." [4] This rule was applied in Rosenkovitz v. United Railways Co., 108 Md. 306, 70 Atl. 108. The rule obtains even in the case of trespassers on the railway's tracks. In Western Md. R. R. Co. v. Kehoe, 83 Md. 434, 35 Atl. 90, the court said: when the facts have been ascertained and agreed upon by the parties, or are undisputed, and there is no dispute as to the inferences to be drawn from the facts, the question is one of law for the court. and Phrases, First and Second Series, Course 2. MASTER AND SERVANT 375(2)-INJURY ing work train, on which he was entitled to Appeal from Baltimore City Court; Carroll T. Bond, Judge. Proceedings under Workmen's Compensation Act by Joel Harrison for compensation for injuries, opposed by the Central Construction Corporation, employer, and the Maryland Casualty Company, insurer. Award for claimant by the State Industrial Accident Commission reversed by Baltimore City Court, and claimant appeals. Judgment reversed, and new trial awarded. Following is the stipulation referred to in opinion: "As no one has a right to be negligently or wrongfully on a railroad track, the company owes no duty to a person so situated to anticipate that he will be in such a position; but if its servants see him in a place of peril, though he be wrongfully or negligently there, then the duty arises to avoid injuring him if possible. The duty which the company owes to such a person originates only when the perilous position is seen or known by the company's servants. When, therefore, a plaintiff is wrongfully or negligently on the tracks of a railroad in a posi-tween the parties to the above-entitled cause, It is hereby agreed and stipulated by and betion of peril, as the prayer we are considering tween the parties to the above-entitled cause, assumes was the fact in the case at bar, the through their respective attorneys, that the duty of the company to use due care to avoid following facts are pertinent to the issues in injuring him arises at the moment the servsaid cause, are susceptible of legal proof, and ants of the company see and become aware of shall be taken as true for the purposes of this his peril; and hence, to sustain this branch of cause, and for the purpose of any appeal in this the prayer, it was essential for him to show, first, that the company's servants had knowledge of his peril." case: 1. That Joel Harrison, employé and claimant, was employed by the Central Construction Corporation at and prior to July 19, 1918, for work It follows that the judgment must be re- upon the Edgewood Arsenal at Magnolia. versed, and a new trial awarded. 2. That the Central Construction Company Judgment reversed, with costs and a new land upon work under a percentage contract for was engaged solely within the state of Mary trial awarded. (135 Md. 170) HARRISON v. CENTRAL CONST. CORPO- (Court of Appeals of Maryland. Nov. 21, 1919. 1. MASTER AND SERVANT 417(6)-WHETHER FACTS ARE UNDISPUTED. the United States government in the development and construction of Edgewood Arsenal at Magnolia, aforesaid. 3. That Joel Harrison lived in the city of Baltimore, and traveled to and from his work at Edgewood Arsenal, aforesaid, upon the lines of the Pennsylvania Railroad Company running from Union Station, Baltimore, to Magnolia Station, at Magnolia. 4. That Harrison in going to and from work, aforesaid, rode upon what is known as a "special work train" operated by the Pennsylvania Railroad Company over its lines, as aforesaid. 5. That there are several (at least two) of these special work trains leaving Union Station each morning for Magnolia, Aberdeen, and othThe question of whether an injury arose er points adjacent to said Edgewood Arsenal out of or in the course of employment is ordi- and returning therefrom in the evening. (108 A.) 6. That prior to the date upon which the run- [ up nor take account of in any way its employés ning of the special work trains, aforesaid, was traveling to and from their work on the special inaugurated the Pennsylvania Railroad Compa- trains, aforesaid, but that such checking and ny had regular trains on regular schedule which accounting of the Central Construction Corpocarried the workmen, resident in Baltimore, of ration's employés and employés of other conthe several contracts at Edgewood Arsenal to tractors at Edgewood Arsenal was done by and and from Magnolia, and that the so-called spe- under the sole direction of the United States cial trains were put on simply because the in- government, through its officers and soldiers creasing number of workmen made it difficult, in uniform or otherwise. if not impossible, to handle the situation on the regular local trains. 7. That all of the workmen and employés, residing in Baltimore, of the several contractors engaged upon government work at Edgewood Arsenal customarily ride upon these trains. 8. That clerks and office employés resident in Baltimore as well as mechanics and laborers are furnished free transportation over the said Pennsylvania Railroad lines and upon said special work trains upon displaying either an identification button or an identification button and an identification card. 9. That the employés who are given free transportation upon said special work trains are not paid by the Central Construction Corporation for the time engaged in making the run from Union Station to Magnolia, but that said trains are so scheduled as to reach Magnolia in ordinary course, prior to the hour set for the beginning of the day's work, and that the pay of the employés on any special work train so scheduled to reach Magnolia before the beginning of the day's work are ordinarily paid from the hour set for the beginning of the day's work, even when the train is late and reaches Magnolia after such hour. 15. That during the period of his employment by the Central Construction Corporation Harrison was of the class of employés that received free transportation upon the lines of the Pennsylvania Railroad hereinabove described. 16. That on July 19, 1918, Joel Harrison, the employé and claimant in this cause, proceeded to Union Station and there was directed to board what he understood to be a work train of the Pennsylvania Railroad Company bound for Magnolia; and that after boarding said train and after same had left Union Station he was told by a railroad official of said train, the Pennsylvania ticket collector, that the train did not stop at Magnolia, but stopped only at Aberdeen and that he (Harrison) should leave the train where it made a stop just before reaching Back River Station, and take the following work train. 17. That accordingly Joel Harrison left said train at the point in the preceding paragraph indicated and walked a distance of several hundred feet into Back River Station, and was there told by the Pennsylvania Railroad Company's policeman that the following train would not stop at Back River Station, but would stop at the same point where the train which Harri10. That all employés engaged upon the Edge-hundred feet from the station. That thereupon son had just left had stopped, to wit, several wood Arsenal, whether employés of the Central Harrison went back to the point that he had Construction Corporation or other contractors there engaged, receive 11 hours' pay for 10 just left, the first train, and was proceeding to hours' work, and that this rate of pay is not board the following train, which in the meandependent upon the traveling of the employés to time had pulled in and stopped, when the train and from Baltimore, but applies to all the em- suddenly started and threw him under the ployés, whether resident upon the Arsenal it- wheels, causing an injury which directly reself, resident in adjacent villages, or resident in sulted in the loss of his right foot at a point Baltimore. midway between the knee and ankle. 11. That all legitimate expense incurred by the Central Construction Corporation in its work for the government at Edgewood Arsenal, aforesaid, is ultimately borne by the United States government under the terms of the percentage contract herein above referred to. 12. That prior to July 10, 1918, the Central Construction Corporation arranged for the payment of the transportation expense of certain of its employés, as above referred to, over the said Pennsylvania Railroad Company's lines. 13. That after July 10; 1918, the United States government, by virtue of an arrangement made through its War Department and by its direct representatives with the Pennsylvania Railroad Company, paid the Pennsylvania Railroad Company direct, without the intervention of the Central Construction Corporation, an agreed sum for the transportation of employés of the Central Construction Corporation and employés of other contractors engaged upon work at Edgewood Arsenal, as aforesaid, and transported over the lines of the Pennsylvania Railroad Company in the special work trains above mentioned. 14. That on and after July 10, 1918, the Central Construction Corporation did not check 18. That Harrison, employé and claimant, as aforesaid, was not aware of the precise nature of the arrangement with the Pennsylvania Railroad Company by which he received free transportation over its lines, as aforesaid, but that Harrison had been told when he entered the employ of the Central Construction Corporation that he would be furnished with free transportation. That some time prior to his accident it was announced that the Central Construction Corporation would no longer be responsible for free transportation. That thereafter the workmen were told that the free transportation would be continued, but that, as aforesaid, Harrison did not know at whose instance the free transportation was so continued; whether at the instance of the Central Construction Corporation or at the direct instance of the United States government, acting through its War Department. That Harrison knew, however, that workmen and employés generally of the Central Construction Corporation and other contractors at Edgewood Arsenal were not required by their employers to travel to and fro upon said trains, but were at liberty to use any other mode of conveyance that they preferred, or to live upon the reservation in bunkhouses pro |