99 Ky. 59 | Ky. Ct. App. | 1896
delivered the opinion op the court.
The action was to recover damages from the appellee for failing to protect the appellant, who was a passenger on one of its trains from the city of Louisville to the city of Frankfort, from abuse, violence and alleged robbery at the hands of one Jack Estes, a fello-w passenger.
The lower court, on motion of counsel for appellee, at the
There v7ere other exceptions taken by counsel for appellant to rulings of the court during the progress, of the trial, in admitting and excluding testimony, which it is not necessary to notice because, in our view of the case, the rulings in these particulars were on immaterial points, and were not, in any event, prejudicial to the substantial rights of the appellant on the merits. We shall, therefore, confine ourselves to the questions presented in the exception of appellant to the instruction given by the court to the jury to find for the appellee.
The principles of law applicable to such cases as this are well settled by the almost ■ uniform adjudications of the courts in this country. Carriers are not held to be the insurers of the absolute safety of their passengers or of their entire immunity from the misconduct of fellow passengers or of strangers; but there is an implied obligation growing out of the contract between the carrier and the passenger that the former shall afford to the latter reasonable protection and immunity from the insults, violence and wanton interference of intruders, fellow passengers and the carrier and his servants. (Winnegar’s adm’r v. Central Passenger Ry. Co., 85 Ky. Rp. 553; Sherley, &c., v. Billings, 8 Bush, 147.)
Out of this obligation, and the doctrine that carriers of passengers are required to use the utmost care in the management of their trains in order to prevent or avoid injury to their passengers, arises the rule that makes it the duty of
And in the last-named case it is held, in harmony with the principles above stated, that a carrier is not responsible for the results of a sudden, unlooked for and violent attack committed by a passenger on a fellow passenger, although the assailant was intoxicated and had addressed insulting remarks to his fellow passenger, but remained quiet after being admonished by the conductor.
In this case the evidence brought up in the bill of exceptions sihows substantially the following state of facts, viz.: The appellant and one Jack Estes were near neighbors and associates. They both boarded the train of appellee at Louisville, taking passage to Frankfort. They had both been drinking while in Louisville, and when they boarded the train Estes was very much under the influence of liquor,
It seems that the ladies in the coach were considerably disturbed by the loud and boisterous and threatening language of Estes, and the conductor, who came into the coach about the time or very soon after Estes entered it, remonstrated with Estes, who had his hands on the appellant, and told him to let appellant loose. Estes told him that appellant owed him money, and that he intended to- have it or his life. The conductor ordered Estes to' leave the ladies’ coach and go into another car, and finally ordered both of them to go into another car, as he did not intend there should be any difficulty in the ladies’ coach. It appears that appeh lant refused to go, and Estes swore he would not go unless appellant went, and when the conductor ordered them both to go appellant’s testimony shows that Estes took him by the hair and pulled him out of his seat, and they then left the ladies’ coach, together with the conductor.
After they entered the other car appellant went forward
The bill of exceptions contains the following as part of the testimony of the appellant before the jury, viz.: “Estes and I had been drinking together off and on before we left Louisville. I live in the same neighborhoodwitli Estes;have known him for years. We were good friends, and I knew his threats and conduct toward me all proceeded from whisky on the day of the trouble.”
From the foregoing statement of the material facts of the case, fairly deduced from the evidence in the record before us, we feel constrained to say that, in our opinion, the appellee or its servants in charge of the train were not in.
The conductor in charge had others under his care besides the appellant whom it was equally his duty to protect. The occupants of the ladies’ coach, in which there was a difficulty pending between the appellant and Estes, 'were entitled to protection, and it was plainly the duty of the conductor to exclude the contending parties from the coach in order to secure the safety of the other passengers therein. Having done this,,he succeeded in quieting Estes, who was still intoxicated, and who remained quiet and gave the appellant no more trouble until the train was near Frankfort; and then, when the'difficulty was unexpectedly renewed by Estes, the conductor remained between him and the appellant until the train reached a point in the city where he could call in a policeman.
The conductor acted wisely and discreetly in view of his responsibility and of the circumstances of the case, and fully within the scope of the obligations devolved upon the carrier company, and upon himself as its servant, by the law as we have stated it and as found in the statute.
In this State conductors of railroad trains are not clothed with the authority to act as peace officers as they are in some jurisdictions; but the statute denounces a penalty against any person who, while riding on a passenger or other train, in the hearing or presence of other passengers, and to their annoyance, “uses or utters obscene language, or behaves in a boisterous or riotous manner,” and makes it the duty of the conductor in charge of the train upon which there is a person who has violated the statute, “either to put such person off the train or to give notice of such violation to some peace officer at the first stopping place where any such.
We are of tbe opinion that tbe facts of tliis case, as deveb oped in tbe testimony for tbe appellant under tbe law as stated and applied, would not have justified a verdict against the appellee, and that tbe peremptory instruction was properly given.
Tbe judgment of tbe lower court is,therefore, affirmed.