Holly v. Atlanta Street Railroad

| Ga. | Aug 15, 1878

Jackson, Justice.

This was a demurrer to the plaintiff’s declaration, which alleged to the effect that the plaintiff was a passenger on one of the defendant’s cars; that two men got to fighting thereon; that she attempted to get off the cars, and in doing so was caught in the door of the car by the persons fighting,and was hadly hurt by being severely mashed and bruised; that the defendant was negligent in failing to provide any conductor to preserve order on the car, and that the driver was negligent in failing to suppress the fight or to eject the combatants, or otherwise to come to her assistance or interfere to preserve order. The court sustained the demurrer, and the plaintiff excepted.

We think that the case should have- been submitted to the jury. Under our law, Code §2067, “ a carrier of passengers is bound to extraordinary diligence, on behalf of himself and his agents, to protect the lives and persons of his passengers. But he is not liable for injuries to the person after having used such diligence.-” The absence of diligence is negligence or neglect; and these questions of diligence and negligence are questions for the jury upon the facts of the case made. The declaration alleges neglect — • total want of diligence in two particulars ; first, in providing no conductor, and, secondly, in having a driver who was careless of the safety and comfort of this female passenger, in that he made no attempt to stop the fight or to eject the fighters. Whether or not these carriers, who have entrusted to their care thousands of passengers, of all ages, sexes and conditions in life, should provide a conductor or other escort in addition to the driver, is a question of diligence or negligence for the jury, and whether the driver used extraordinary diligence to protect the person of this lady is peculiarlyso.

These questions should have gone with the proof the respective parties might have made, to the jury, and they should have passed upon them. It is true that, as argued for defendant in error, there may be a difference between railroads, on which cars are propelled by steam across the country, and these street railroads in cities; but both are. carriers of passengers, and liable for slight neglect, or the absence of extraordinary diligence. And their duty to their passengers, in caring for their safe and comfortable conveyance from point to point, is the same.

Whether this duty was discharged in this case is for the jury to say, under all the facts thereof.

That carriers are bound when injuries arise from other passengers, and the common protector of all is wilfully negligent by his agents and servants to interfere, seems to be established by the authorities cited by the counsel for plaintiff in error. See 53 Penn., p. 512 ; 6 Blackf., p. 158 ; 55 New York, p. 108; 53 Miss., p. 201.

Judgment reversed.