protect the passenger against such outrages, either by quelling the disturbance or by the expulsion of those engaged in it, if necessary. In such an emergency, the duty of the carrier is said to be the same as that which he is under in other respects, to do all that can be done to insure the safety of the passenger.41 This duty of the carrier, however, is relative suffering from delirium tremens and whom the conductor had negligently failed to restrain. 41. Koch v. Railroad Co., 78 N. Y. Supp. 99, 75 App. Div. 282, the railroad company was held liable where the conductor merely told other passengers who were abusing plaintiff to "stop that fooling," and then went away, allowing the other passengers thereafter to throw the plaintiff on the floor and walk over him out of the car to the station. In Railroad Co. v. Darting, 6 Ind. App. 375, 33 N. E. Rep. 636, several passengers assaulted plaintiff without cause. The conductor, although he had good reason to apprehend trouble, made no serious effort to prevent the attack, and when it finally occurred in the front part of the car, promptly sought the rear part of the car to "stop the train." The company was held liable. See also, Railroad Co. v. Jefferson, 89 Ga. 554, 16 S. E. Rep. 69, 32 Am. St. Rep. 87, 17 L. R. A. 571; Railroad Co. v. McEwan, 21 Ky. L. R. 487, 51 S. W. Rep. 619; Railway Co. v. Taylor, 27 Ky. L. R. 351, 85 S. W. Rep. 168; Railroad Co. v. Barger, 80 Md. 30, 30 Atl. Rep. 561, 26 L. R. A. 220; Lucy . Railway Co., 64 Minn. 7, 31 L. R. A. 551, 65 N. W. Rep. 944; United Railways, etc., Co. v. State, 93 Md. 619, 49 Atl. Rep. 923, 86 Am. St. Rep. 453; Railroad Co. v. Minor, 69 Miss. 710, 10 So. Rep. 101, 16 L. R. A. 627; West Mem phis Packet Co. v. White, 41 S. W. Rep. 583, 99 Tenn. 256, 38 L. R: A. 427; Railway v. Flake, 114 Tenn. 671, 88 S. W. Rep. 326; Railroad Co. v. Henderson (Tex. Civ. App.), 82 S. W. Rep. 1065; Railway Co. v. Sherbert (Tex. Civ. App.), 42 S. W. Rep. 639. In the trial of an action for damages by a passenger for being compelled to ride in a car occupied by disorderly passengers, evidence that the conductor in charge of the train had, prior to the time that plaintiff became a passenger, made efforts to suppress the disorder is irrelevant when the ques tion to be determined is whether such conductor was diligent in the suppression of disorder which arose after the plaintiff became a passenger. Railway Co. v. O'Bryan, 112 Ga. 127, 37 S. E. Rep. 161. In Railway Co. v. Greenthal, 77 Fed. 150, 23 C. C. A. 100; S. C. Meyer's Adm'x v. Railway Co., 54 Fed. 116, 4 C. C. A. 221, 10 U. S. App. 677, the railroad company was held liable for the death of a passenger caused by an insane fellow passenger. In Pounder v. Railway Co., (1892) 1 Q. B. 385, 61 L. J. Q. B. 136, the court held that there is no duty on the part of a carrier and contingent and not absolute and unconditional. The neg ligence for which the carrier is held liable is not the wrong of the fellow-passenger or the stranger, but is the negligent omission of the carrier's servants to prevent the wrong from being committed. In order that such omission may constitute negligence, there is involved the essential element that the carrier or his servants had knowledge, or with proper care could have had knowledge, that the wrong was imminent, and that he had such knowledge or the opportunity to acquire it sufficiently long in advance of the infliction of the wrong upon the passenger to have prevented it with the force at his command.42 Sec. 981. (§ 549.) Same subject-Carrier bound to protect against assaults which might reasonably be expected. While to take especial care of a passenger on account of any unknown peculiarity attaching to him. But the court's decision in this case is, at best, of doubtful validity. See Blain v. Railway Co., 5 Ont. L. R. 334, 2 Can. Ry. Cases 85. 42. United Railways, etc., Co. v. State, 93 Md. 619, 49 Atl. Rep. 923, 86 Am. St. Rep. 453; Mullan v. Railroad Co., 46 Minn. 474, 49 N. W. Rep. 249; Railroad Co. v. Minor, 69 Miss. 710, 11 So. Rep. 101, 16 L. R. A. 627; Partridge v. Woodland Steamboat Co., 66 N. J. Law 290, 49 Atl. Rep. 726. If a passenger is violently assaulted or ejected from the train by a fellow passenger while the conductor is absent or attending to his duties in another part of the train, not knowing of the assault or that it was threatened, the carrier cannot be held liable therefor, and a complaint which fails to allege that the conductor or brakeman in charge of the train was present at the time of the assault or that they had rea sonable grounds to apprehend that plaintiff was in danger, or that, if they had known of the assault, they could, in the exercise of reasonable care, have prevented it, is fatally defective on demurrer. Railroad Co. v. Arnold, 26 Ind. App. 190, 59 N. E. Rep. 394. In Connell's Ex'rs (Ball, et al.) 1. Railroad Co., 93 Va. 44, 24 S. E. Rep. 467, 32 L. R. A. 792, 57 Am. St. Rep. 786, plaintiff's testator, while a passenger on a sleeping car, was shot by a robber who had intruded into the car, the injury later resulting in his death. It did not appear that the agents of the carrier had notice, or that there were any circumstances in the robber's entry upon the train which would have excited the ap prehension of even the most careful and cautious. In an action against the railroad company it was held that the carrier would be liable in such a case only where its agents or employes knew, or, in the carrier is not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, he is bound to provide ready help sufficient to protect the passenger against assaults from every quarter which might reasonably be expected to occur under the circumstances of the case and the condition of the parties. In a case2 in which a number of unruly persons forced themselves upon the car in which the plaintiff was a passenger, and in the course of a the light of the surrounding circumstances, ought to have known that danger was threatened or was to be apprehended and then failed to use their authority and power to protect the passenger from the impending peril, and, it nowhere appearing that the servants knew or could, in the exercise of the utmost caution have anticipated what happened, that the carrier should not be held to answer. Where a train stops at a regular meal station, it is not negligence for the crew to leave the train for the purpose of eating. If a passenger who remains on the train is assaulted by another passenger and an intruder, the carrier cannot be held liable. Thweatt r. Railway Co., 31 Tex. Civ. App. 227, 71 S. W. Rep. 976. The law as thus stated is expressly approved in a number of other cases, in some of which, however, the ground upon which the liability of the carrier was vested did not call for a direct application of the rule. Bass v. The Railroad, 36 Wis. 450; Craker v. The Railroad, id. 657; Goddard v. The Railway, 57 Me. 202; Ramsden v'. The Railroad, 104 Mass. 117; Chicago, etc., R. R. v. Griffin, 68 Ill. 499;; Chicago, etc., R. R. v. Williams, 55 id. 185; Dan iel v. Railroad, 117 N. C. 592, 23 S. E. Rep. 327; Railroad v. McEwan, 17 Ky. L. R. 406, 31 S. W. Rep. 465. 1. Britton v. Railroad Co., 88 N. C. 536, citing New Orleans, etc., R. Co. v. Burke, 53 Miss. 200; Pittsburgh, etc., R. Co. v. Hinds, 53 Penn. St. 512; Pittsburgh, etc., R. Co. v. Pillow, 76 Penn. St. 510; Flint v. Transportation Co., 34 Conn. 554. In the Britton case the company was held liable to a colored passenger whom the conductor had failed, when called upon, to protect from the insults and assaults of white passengers. See also, Batton v. Railroad Co., 77 Ala. 591; Flannery v. Railroad Co., 4 Mackey, 111. In a remarkable case in Missouri the company was held liable where the conductor had permitted and to some degree aided a number of passengers to so intimidate and terrorize an ignorant and timid fellow-passenger by threats to rob him, tie him and throw him off the train, that in order to avert this fate he voluntarily leaped from the train while at full speed and received serious injuries. Spohn r. Railway Co., 87 Mo. 77; affirmed, 101 Mo. 417. 2. Pittsburgh, etc., R. R. v. Hinds, 53 Penn. St. 512. fight between some of them, one of them was thrown upon the plaintiff with such violence that her arm was very much injured, it was said that the negligence of the company, or of its officers in charge of the train, was the gist of the action; and that while it was not the duty of railroad companies to furnish their trains with a police force, they were bound to furnish men enough for the ordinary demands of transportation; and that if the conductor did not do all he could with the force he had upon the train, to stop the fighting, it was negligence. In such cases, it was said, he should stop the train, if necessary, and call to his assistance all its servants and as many of the passengers as are willing to lend a helping hand, and that until he has done this and put forth all the means at his disposal, he has no right to abandon the conflict. To keep his train in motion and busy himself in collecting fares whilst a fight was going on was, it was said, to fall short of his duty. He should not have been content with ordering the thing to be done. He should himself have led the way. "He should have stopped the train and hewed a passage through the intrusive mass until he had expelled the rioters, or have demonstrated by an earnest experiment that the undertaking was impossible." Sec. 982. Same subject-Carrier's duty to protect female passengers. The contract of carriage as to female passengers embraces an implied stipulation that the carrier will protect them against general obscenity, immodest conduct or wanton approach. In several cases the carrier has been held liable for failure to perform that duty.3 But this rule is also subject to the usual exception that the carrier is not liable for assaults on female passengers made under such unusual circumstances that the carrier could not possibly have foreseen them. 3. Railroad Co. v. Grundy, 12 Ky. L. R. 293; Railroad Co. v. Finn, 16 Ky. L. R. 57; Lucy v. Railway Co., 64 Minn. 7, 65 N. W. Rep. 944, 31 L. R. A. 551; Railway Co. v. Sherbert (Tex. Civ. App.), 42 S. W. Rep. 639. 4. Segal v. Railway Co. (Tex. Civ. App.), 80 S. W. Rep. 233. Sec. 983. Same subject-Carrier not liable for accidents arising from rudeness or incivility of fellow-passengers.-The carrier of passengers is subject to no duty to guard against acts of mere rudeness or incivility, and is not negligent if it fails to do so. Rudeness cannot be said to amount to a breach of any positive law. The ordinary cars are, and must be, open to the masses among whom different degrees of intelligence and culture will be found. There is, therefore, a certain amount of rudeness, of haste, of selfish disregard for the feelings of others to be expected wherever men and women gather together; and the railway passenger car is no exception. But ordinarily unless such conduct amounts to a breach of the peace, the carrier is not bound to prevent it, nor is it liable in damages where such conduct has caused injury to a passenger.5 Sec. 984. Same subject-Duty to restrain or eject drunken passengers. We have already had occasion to notice that, under certain circumstances, the carrier may have a right to eject drunken passengers, but under some circumstances he may not only have the right but it may be his duty towards other passengers to take such measures as are necessary to protect them from insults or injury at the hands of drunken men. If a drunken and disorderly man is on the carrier's vehicle, it will not do to say, after a passenger has been subjected to insult or injury, that the carrier's servants did not know or could not have foreseen that the particular individual who was insulted or injured was in danger of such insult or injury, if 5. Madden v. Railroad Co., 90 N. Y. Supp. 261, 98 App. Div. 406 (passenger's arm jammed through the window of a car door by the pell-mell rush of other passengers); Fritz v. Railway Co., 132 N C. 829, 44 S. E. Rep. 613 (female passenger while alighting injured by male passenger attempting to push past her with a valise); Ellinger v. Railroad Co., 153 Pa. St. Rep. 213, 25 Atl. Rep. 1132, 34 Am. St. Rep. 697 (female passenger's leg broken in alighting due to being jostled by male passenger); Graeff v. Railroad Co., 161 Pa. St. 230, 28 Atl. Rep. 1107, 23 L. R. A. 606, 41 Am. St. Rep. 885 (female passenger injured by male passenger rudely pushing door open and striking her in face). |