116 Tenn. 580 | Tenn. | 1906
delivered the opinion of the Court.
Mrs. Hatch, one of the defendants in error, accompanied by three small children, the oldest of them being only five years of age, took passage on a train of the railway company, named above as one of the plaintiffs in error, at Houston, Texas, to make the journey from that point to Memphis, Tennessee. Having a ticket not
Immediately upon this change having been made, Mrs. Hatch prepared her children to retire for the night, and placed them in the berth to which her ticket entitled her. Having done this, she took a seat, immediately opposite this berth. Being in delicate health, this seat was taken in order that she might have the benefit of
To show negligénce upon the part of the two companies, Mrs. Hatch testified that from the time the conductor, immediately after she had entered the sleeper at Texarkana, took up her tickets, until she fell asleep, a period of one hour, no one but the passengers were in the sleeper, and that it was only after these, two men disappeared, or were in the act of disappearing, from the car, subsequent to the outrage complained of, she saw the conductor and porter; that not only did she get no response to the bell, which she twice rang, but that, while she sat by the window before falling asleep, the lady in the berth across the'aisle from Mr. Tucker rang several times and failed to get a reply from any one in charge of the. car. She states that, when she was aroused
M'r. Tucker states that, being thus roused by Mrs. Hatch, he dressed as rapidly as possible, and, upon ascertaining from Mrs. Hatch what had occurred, he took his pistol and went forward for the purpose of finding these men. When asked with regard to the conductor, and as to when he found him, he made the following reply: “It was some time afterwards. I do not know hardly that I could gauge time, under such circumstances, but it was near ten or twelve minutes after
‘■Q. And do you not know during that time of a porter or conductor being in the car?
“A. No, sir.
“Q. And the porter came into the car after the occurrence?
“A. Yes, sir; that is my impression.”
On cross-examination, Mr. Tucker stated that he was quite sure that he did not see the porter until he returned to the sleeping car after having made a search in the car in front for the men who had committed this outrage. He was then asked by the counsel for the defendants below if it was not possible that the porter may have gone forward and returned to the other car in search of the conductor, while he (Tucker) was making his search, and he says that he does not think such was the case, for the reason that he was sitting on the edge of his berth slipping on his shoes preparatory to the search which he immediately started upon, and he does not think it possible for any one to have passed without his noticing it, and if any one had attempted to pass he would certainly have known it.
This cross-examination to which Mr. Tucker was sub
In addition to the testimony of the porter, who, according to his statement, was engaged from time the train left Texarkana until two or three minutes before this outrage, in a diligent watch of the car, the plain
The trial judge in this case gave an admirable charge to the jury. It was clear in its statements, and, without being meager, had the quality of brevity which, added to its clearness, made it what a charge should be, an intelligent guide to the jury in making up their verdict. The only error in the statement of the proposition of law which was made was in favor of the railroad company, in that he stated that with regard to it, as well as the Pullman Company, the rule of law was that only ordinary and reasonable care and diligence in watching over its passengers to protect them from assault and injury was required. This was a sound proposition, so far as the Pullman Company was concerned, but not as to the railroad company. Prom the latter the law exacts a high degree of care and vigilance as to passengers. While not an insurer, the carrier of passengers has put him under the burden of exercising a high, if not the highest, degree of vigilance to protect his passengers, not only from his own employees, but from fellow passengers and from strangers. So it is that the railway company cannot complain in that the trial judge imposed a lower burden upon it than the law would exact. Nor can the Pullman Company be heard to complain, for whatever error was committed in that respect by the trial judge did not result in injury to it, inasmuch as the proposi
But the insistence is made for both companies that, as they had no reasonable ground for suspicion that these parties would enter the sleeper .and commit this wrong neither can be charged with negligence or held liable for the injury resulting to Mrs. Hatch from this wrong.
It is true that the rule of law is, as announced in Ferry Cos. v. White, 99 Tenn., 263, 41 S. W., 583, 585: “If there was nothing on the part of the passengers or otherwise to create in the minds of any reasonable person any apprehension of danger, the defendant cannot be charged with negligence or held liable for injuries resulting therefrom.” This principle is supported by many authorities, relied on by plaintiffs in error especially, and is emphasized in the cases of Connells, Executor, v. C.& O. Ry. Co., 93 Va,, 44, 24 S. E., 467, 32 L. R. A., 792, 57 Am. St. Rep., 786, and Batton v. S. & A. R. R. Co., 77 Ala., 591, 54 Am. Rep., 80.
The principle announced by these cases, which is a limitation upon the general rule of liability of the carrier, is altogether sound, but it comes into play as a matter of necessity, only when the carrier is diligent in discharge of his general duty to his passengers; in other words, is not guilty of negligence. It was not in the mind of any court announcing this principle that where the carrier was guilty of abandoning his post, where only he could discharge this duty, that the law
But it is said on the part of the Pullman Company, that the trial judge Avas in error in declining to give certain special requests that Avere submitted by its counsel. These requests embraced the theory of that company upon certain proven facts with the propositions of law which it sought to have applied to that theory. Granting that they were entirely sound, yet we think that the trial judge cannot be put in error for declining to give these, inasmuch as he did not undertake to state the theory of either party to the lawsuit, but laid down, in general terms, and with unusual clearness, sound propositions of law which would guide the jury in reaching a correct solution of the case, as they might adopt the theory of facts of the plaintiffs or of the defendants.
So far as the more important assignments of error submitted for the railroad company are concerned, we do not think on this record that they are well taken. The matter of complaint embraced in these two assignments were not called to the attention of the trial judge, in the motion for a new trial, as was required by a rule of that court, and therefore cannot be considered here. Even, however, if it was otherwise, in view of the charge given, there is nothing of which it can complain.
Judgment affirmed.