115 Ga. 836 | Ga. | 1902
Boyle sued the railway company, alleging in his petition substantially the following facts: The plaintiff was an express messenger, and his duties required him to ride upon the train of the defendant, and the defendant received him upon its train in that capacity. On a day named two negro tramps secreted themselves on the front platform of the car in which plaintiff was riding in the discharge of his duties, and, being discovered by the conductor, were taken in charge by him and the baggage-master and placed in that portion of the coach set apart for the use of the express company where the plaintiff was attending to his duties as messenger. The conductor and baggage-master did not search the tramps, did not place a guard over them, and did not securely bind them, but attempted to detain them in the coach by negligently and carelessly tying one of the two ends of a short rope around one wrist of each tramp, leaving a play of about four feet between them, thus permitting the free use of their entire bodies. The tramps attempted to escape from the train by jumping from the side door of the car, and were resisted and restrained by the baggage-master, who happened to be passing at the time. In the struggle which resulted both tramps drew revolvers, which they had secreted about their clothing, and one of them discharged his revolver at plaintiff, who was six feet away, the ball striking plaintiff in the 'left knee joint, he at the time taking no part in the struggle between the tramps and the baggage-master. During the struggle the baggage-master and both tramps fell to the floor, and one of the tramps raised on his knees and fired again at plaintiff, but the ball did not strike plaintiff but went through the top of the car. As a result of the wound in the knee joint plaintiff suffered great pain and .agony, was prevented from attending to his regular duties for a period of some weeks, and w^s forced to incur large expense in medical attention,-etc. It is alleged that the injuries resulting to plain
There does not seem to be any serious controversy between counsel as to what is the law of this ease. It is conceded that the duty which the railway company owed to the plaintiff was the same duty which it would owe to a passenger under similar circumstances. It is the duty of a railway company to protect its passengers from insult or injury at the hands of fellow-passengers or of third persons, when the circumstances are such that a person in the exercise of that degree of diligence known to the law as extraordinary care would see, or should apprehend, that the passenger is in danger of insult or injury; and when the circumstances were such that the employees in charge of the train, in the exercise of the degree of diligence above referred to, should have foreseen that an insult or injury was to be reasonably apprehended, and failed or refused to use the means at hand to protect the passenger therefrom, the railway company is liable to the passenger for any damages he sustains as a consequence of such failure or refusal. “ The general rule,” says the American & English Encyclopsedia of Law.(vol. 5 (2d ed.), 553), “would seem to be that whenever a carrier,, through its agents or .servants, knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to «prevent or mitigate such injury, the carrier is liable.” Mr. Elliott in his work on Railroads.
This is not a case where the passenger claims damages for .the reason that the conductor and other employees in charge of the train failed or refused to protect him after it became apparent that the injury might result to him from the presence upon the train of a third person; but the plaintiff’s case depends upon whether the circumstances alleged in the petition were such that the employees in charge of the train, in’the exercise of extraordinary care for his protection, that is, using the utmost vigilance and care or that extreme care and caution which very prudent persons exercise, should have foreseen that the tramps who had been arrested by them and brought into that part of the coach in which the plaintiff’s duty required him to ride were armed with deadly weapons and would attempt to escape and, while making this attempt, would discharge the deadly weapons at one who was taking no part in the efforts made by an employee to prevent such escape. If an extremely prudent person would have foreseen that this would have probably happened, then it was the duty of the employees on the train to take
In reference to the exception of the plaintiff that the court erred in granting a nonsuit, as it appeared that the evidence supported the averments of the petition substantially as laid, the court should not have granted a nonsuit. See Flewellen v. Flewellen, 114 Ga. 403, and cases cited; Roberts v. Fleming, Id. 634. But as the conclusion is now reached that the petition should have been dismissed on demurrer, while the judgment granting the nonsuit will be re
Judgment in the one case reversed; in the other, reversed with direction.