Penna. R. Co. v. Lord , 159 Md. 518 ( 1930 )

The burden of proof was upon the plaintiff to show by legally sufficient testimony that the defendant corporation was responsible for the injury she had sustained. This indispensable testimony is not supplied by conjecture or speculation nor by inferences which are not warranted by the facts.

The truck by which the injury was inflicted was leased by the Pennsylvania Railroad Company to the Baltimore Eastern Railroad Company as the successor corporation by purchase to the Baltimore, Chesapeake Atlantic Railway Company. The legal effect of the lease was to transfer for a prescribed period of time the possession and control of the property to the lessee to the exclusion of the lessor's possession and control. At the time of the wrongs alleged the truck was driven by a servant of the Baltimore Eastern Railroad Company, a public service corporation, in the course of the operation of the latter as a public carrier over its authorized motor truck route upon a public roadway. There is no testimony of evidential value that the driver of the truck was in the employ of the defendant corporation, or was subject to its control or was engaged in its business. Nor is there any legally sufficient evidence from which the jury could infer that the defendant carrier either was one of a trinity of principals composed of the three corporations mentioned, or was the principal to the corporate carrier which was the lessee of the truck whose negligent operation caused the plaintiff's hurt. It is submitted that a joint enterprise, or the relation of principal and agent among two or three public service corporations, is not to be inferred from the circumstance that certain servants or agents of one perform similar services for both or all, unless it otherwise appear that the corporate entities shall contemplate a performance which will bind them jointly, since, in the absence of such evidence, the authority conferred by each one will be deemed limited to the separate corporate business undertaking of each corporation. Mechem onAgency (2nd Ed.), secs. 182-185; Bethlehem Steel Co. v.Concrete Pile Co., 141 Md. 67, 78-83; Stewart Taxi Co. v.Spencer, 149 Md. 635. Compare Balto. Transit Company v.Swindell, 132 Md. 274; Pugh v. Washington etc. Co.,134 Md. 196; Pennsylvania R. Co. v. Hoover, 142 Md. 251, which are to be distinguished on their facts and the principle involved.

The majority of the court reads the record differently, but the facts are contained in the prevailing opinion, and, in my judgment, they show that there is no competent testimony on the record to impute liability to the defendant, and the case should have been taken from the jury on this ground. The effect of awarding a new trial is to give the plaintiff a second opportunity to furnish testimony which, if it exist, should have been produced by her in the first instance.