211 F. 294 | 2d Cir. | 1914
Plaintiff, a widow traveling alone, sailed from New York October 6, 1910, on defendant’s steamship Ra Provence, for a tour in Europe. She occupied, with no roommate, one of the so-called “demi-luxe” cabins No. 653 on the promenade deck. The adjoining cabin No. 651 was not occupied during, the voyage. Both cabins had doors opening into the corridor and were also connected by a door through the partition. The door opening into the corridor had a lock and bolt on the inside.; the partition door had a lock and a bolt on each side. ■ No stateroom keys were issued to passengers of to any one else; the staterooms were divided into groups of contiguous rooms; for each one of these groups one of the stewards had exclusive charge of a pass-key which controlled the locks of all the doors in the group, corridor, and partition. About three weeks before, on a prior voyage the under-steward, who carried the pass-key to the group of which plaintiff’s cabin formed one, lost the key. The loss was reported to his superior; the lost key was never returned. A new pass-key exactly like the lost one was issued to the under-steward, but nothing was done to the locks of this group, no rearrangement made of their interior mechanism, so that they remained controllable not only by the new key, but also by the lost one.
The connecting door was covered on plaintiff’s side by a hanging curtain. When she first entered the cabin, on coming aboard, she felt of this door behind the curtain and found it was bolted and apparently locked. The testimony warrants the conclusion that it was then locked and bolted. She asked for a key and the stewardess told her that passengers did not have keys; that when out of the stateroom she should leave her door open, and when in she could keep it closed and bolted. This she did.
In the corridor on which her stateroom opened there were electric lights near the ceiling which burned day and night continuously. At night, when all light in the stateroom was extinguished, enough came through the ventilator from these corridor lights for one to see objects in the stateroom. Close to the berth in every passenger stateroom, where they could be easily reached without rising, were two push-buttons ; one of them turned on the electric light in the stateroom, the other communicated with a so-called bell-board at the forward end of the corridor, on which plaintiffs stateroom was located. The bell-board was about the width of three staterooms away and served for the group of demi-luxe staterooms. It bore the numbers of each stateroom; when a button was pushed, an electric alarm or “buzzer” sounded, and the number of' the stateroom in which the button had been pushed was illuminated. The regulations of the ship called for a man to be stationed continuously day and night immediately opposite the
The plaintiff suffered from seasickness and passed most of her time in the stateroom. On the afternoon of the last day, however, she was out of it for two or three hours, passing Lamure on her way to the deck. She returned to her stateroom about 6 p. m., ate something, and lay in her berth reading until about 9 p. m., when, wanting some one to come, she pushed the bell-board button. She did this repeatedly from 9 to lip: m., but no one came until the last named hour.' Then her room steward, Coret, came. Asked if he had not heard the bell, he said he had had to wait in the dining room, had had extra things to do. After he left plaintiff rose and bolted her door, put out the stateroom light, and fell asleep. Shortly thereafter she awoke, thinking she heard some one at the window; she got up, satisfied herself that the shutter was bolted, returned to her berth, and again fell asleep. The testimony of others indicates that when she next awoke it was 2:30 a. m. The first thing she was conscious of was that it was pitch dark (the corridor lights had been turned out); this terrified her, thinking there had been some accident to the machinery. She listened intently for quite a while, hearing the throbbing of the engine, until she heard “a little noise somewhere around the door to No. 651.” She at once pressed both buttons. As the stateroom light shone out, the curtains to her berth were pulled apart, and she saw a figure in black standing there. This.was Lamure. From the evidence it is manifest that he had found the lost pass-key, had slipped into No. 653 while plaintiff was out of it on the afternoon of the last day, and slipped back the bolt of the connecting door behind the curtain, had made his way in the dead of night up three decks (his sleeping quarters, where he was required to be at that hour, were below) and along the whole length of the ship unobserved. That he had entered No. 651 using the pass-key. Once there he had taken off his uniform, collar, necktie, and false shirt front and put on a bag of black lustrine as a mask, with places cut for eyes and mouth. In his pocket’ he had a length of rope about the thickness of one’s finger. Either before or after this change of costume, he had put. out the lights in the corridor. Fie next unlocked the connecting door with the same pass-key (it was found in the lock the next morning), and went to plaintiff’s berth.
As the curtains were drawn apart, he struck the plaintiff. This was the beginning of a desperate struggle; plaintiff says it seemed like a lifetime, but probably lasted about ten minutes. Possibly that estimate is too large, but the occurrences which took place certainly indicate that it lasted some time. Plaintiff struggled up and out of the berth three times, and three times beating her on the head clutching her by the throat, and thrusting his knee against her chest, Lamure hurled
The first point in controversy is whether the complaint sets out a cause of action on contract or in tort. It is unnecessary to decide which is the correct construction of the pleading, because the trial judge interpreted it most favorably to defendant, treating the action as one sounding in tort, and charging that plaintiff could recover only upon proof of some specific negligence on the part of the defendant.
From a careful study of the whole charge (there are several exceptions to isolated parts of it), we have-reached the conclusion that Judge Holt was apprehensive that the distressing circumstances attending the assault might prejudice the jury. Therefore he was most careful, even at the risk of giving some sound exceptions to plaintiff, to impress upon the jury that there could be no recovery unless the proofs showed some specific neglect in exercising that degree of care which reasonable prudence would require of a carrier obligated to be watchful and vigilant to protect its sleeping passengers.
The charge was favorable to defendant, and we are satisfied that the verdict was not induced by any undue conception of the carrier’s duty in that'regard; it finds abundant support in the undisputed facts. It may be assumed that it was a prudent regulation, which forbade the distribution of stateroom keys among hundreds of passengers, about the antecedents of many of whom the carrier had no information and which left the single key which controlled the connecting doors of a group of staterooms in the hands of one trusted employé. But when that key was lost on board ship, with the possibility that it might be found by some one, and when it was not returned, a circumstance tending to indicate that the finder (if. there were one) was keeping it for ulterior purposes, it would not be surprising if the jury reached the conclusion that a man of reasonable prudence would overhaul the locks so that they would be controllable by the new pass-key but not by the lost one.
We find no merit to the contention that the court erred in admitting evidence of some items of disbursement for care and attendance; we think they were sufficiently pleaded; the complaint enumerates some expenditures which, “among others,” she was compelled to make; these trifling little items are some of the “other, disbursements”; it would be a waste of time to discuss these trivial items of disbursement.
“The fact that the remembrance of this occurrence causes her emotion is not alone anything for which you can give money compensation. But, if it affected her nervous condition as a matter of health, then that is what you may consider.”
Plaintiff testified as to the sort of trip she expected to take in Europe, a trip which this assault brought to an end, but defendant itself brought the testimony out on cross-examination.
We find nothing to call for consideration in the remaining assignments of error.
Judgment affirmed.