21 Ga. App. 50 | Ga. Ct. App. | 1917
Lead Opinion
(After stating the foregoing facts.)
1. It will be observed that the plaintiff’s cause- of action as finally amended is broadly grounded upon the proposition that when she became a passenger and paid her fare to a given point, it was the duty of the defendant • company to stop the train at her destination a sufficient length of time to allow her to leave it with safety to her life and person; and that if the plaintiff was carried beyond her stopping place by no fault of hers, but by the failure of the defendant company’s conductor and agent to do his
It is unnecessary to say that for the breach of its duty to afford the passenger an opportunity to alight in safety at her destination, the plaintiff could have- recovered damages for the injuries directly resulting therefrom. In Burnett v. Rome Railway & Light Co., 7 Ga. App. 323 (66 S. E. 803), the petition alleged that the plaintiff was an old lady, unacquainted with the streets or their condition in the city of Eome, where the defendant operated a line of street-cars, and that she contracted with the conductor, in consideration of a fare of five cents, to convey her as a passenger from the point where she entered the car to “Cherokee street in south Eome; that the conductor failed to comply with his contract” to carry her to Cherokee street, but put her off at East Third street, and gave her a transfer which compelled her to walk a quarter of a mile to another car, and in going to this car she fell and dislocated and broke her hip; that if she had known that she could not be carried by the street-car to south Eome without having to walk this distance, on account of her age, infirmity, and defective eyesight, she would have employed some other means of conveyance, and would not have attempted to get on the ear. This court said: “No direct connection between the defendant and the fall is alleged. The plaintiff sues for the personal injury received through the fall. Held, that the defendant’s wrong, if any, was not the proximate cause of the injury; that the petition does not state a cause of action; and that it was properly dismissed on demurrer.” Again, in Central of Georgia Ry. Co. v. Dorsey, 116 Ga. 719 (42 S. E. 1024), it was said: “Damages traceable in some • measure to a tortious act, but resulting chiefly from other and , contingent circumstances, and not the, legal or natural consequence of the act, aré too remote to be the basis of recovery against the wrongdoer. It follows that where a female, passenger on a railroad-train was carried beyond her station, and the train stopped
In the case of Central of Georgia Ry. Co. v. Price, 106 Ga. 176 (32 S. E. 77, 43 L. R. A. 402, 71 Am. St. R. 246), it was held: “Where, through the negligence of the conductor of a railway company, a passenger on its cars has been carried beyond the point of her destination, such conductor, in the absence of express authority so to do, can not constitute the proprietor of a hotel, who is entirely unconnected with the company, its agent for the purpose of providing safe and comfortable lodgings for the passenger until she can return on the company’s train to her destination. It follows, therefore, that the company is not liable for any injuries or damage such passenger may have sustained while at the hotel, in consequence of any negligence on the part of its proprietor.” That case on its facts is closely akin to the case under consideration, so far as relates to the contention that the conduct of Darden was a proximate result of the breach of the contract of carriage on the part of the railroad company for which a recovery was authorized. The Supreme Court there held, that while a conductor on a passenger-train of a railway company was the agent of the company and the company was bound by all of his acts within the scope of his employment, his business was to superintend the running of the train and to look after the comfort and safety of the passengers, and “do such other work, in and about the running of the train, as is imposed upon him by the rules of the company or by law;” but, “being only an agent, he had no authority, without express power conferred by the company, to appoint a sub-
The decision in that case likewise definitely holds that a conductor entrusted with the running of a train and with the duty of earing for the passengers thereon is without authority to engage subagents to care for such passengers when no longer upon his train. It is alleged in the petition in this case that an employee of the defendant, other than the conductor, at his instance and request engaged the driver who conveyed the plaintiff to her home ; and evidence was introduced to show that the driver, Darden, was in fact engaged by another' employee or “agent” of the company, who possessed authority to bind the company, and that this agent had knowledge, at the time he contracted with Darden, that the latter was a man of no character, was then drinking or drunk, and had actually received whisky at the station where this agent was employed on that very day, with the constructive knowledge, at least, of said employee. While it may be true that an agent of
3. In Central of Georgia Ry. Co. v. Dorsey, supra, where a female passenger was carried beyond her station, ánd the train stopped near the next station, and the passenger walked at night and without escort through the town to the house of a friend, it was held: “She should not be allowed to show that she was frightened by hearing loud voices of negro men who were walking behind her, unless it is also made to appear that the locality was one in which such occasion for fright was likely to occur and that the railroad company had notice of this.” The uncontradicted evidence in the case under consideration entirely removes any suggestion of notice to the agent of the railroad company that'injury or danger might result to the plaintiff by placing her in Darden’s care, and therefore no recovery would be authorized, under the principle referred to in the above ruling of the Supreme Court, on account of a breach of the general duty resting upon the employees of the carrier to properly safeguard a passenger under their charge, or at all events not to deliberately place her in a position which they knew, or could have known by the exercise of proper care, was one from which wrong or injury to her might naturally be expected to result. If it be conceded that the proof as a whole might in any possible view have authorized the jury to infer that Broadwater was the agent in charge of the station at Kingston, and; though not authorized as such agent to employ a subagent, for and in béhalf of his company, to convey a passenger
It is true there was testimony that a shipment of liquor came to Kingston that very day on an earlier train of the defendant, which was addressed to Darden, but it was not shown that Darden himself actually received this shipment that day, and Broadwater was not the express agent and had no actual or constructive knowledge of this fact. Broadwater not only asserted that he was unaware that Darden ever drank at all, but said that Darden appeared perfectly sober when he engaged him, and he detected at that time no odor of whisky upon or about his person, and saw nothing whatever in his appearance or conduct to arouse the suspicion that he was not his usual self. Furthermore, as demonstrating his extraordinary care in selecting one he believed and had reason to believe was a proper person, he said he had himself known Darden personally for a long time, and had always considered him as reputable and decent a young man, “or as nice a boy,” as there was in the community. He not only did not carelessly entrust the plaintiff to a stranger or to one of doubtful reputation or antecedents, but-sought out and procured a man whom he had known for many years and had every reason to believe
It is true that Mrs. Jackson said she smelt whisky on Darden while on the way, and her husband likewise said that he noticed the same odor on or about him after the plaintiff reached her home and entered the house, when he himself came quite close to Darden or “walked right up against the wheels of the buggy” in which Darden was sitting. -However, the fact that an odor of whisky emanated from Darden on the road, or after he reached the home of the plaintiff, does not necessarily show that any odor of that character hung around him or was discoverable to even the keenest olfactory nerves at the time Broadwater engaged him as a 'driver, or that he was then in the slightest degree perceptibly under the influence of liquor. Even the plaintiff failed to detect any such odor until some minutes after she had been seated by his side in the huggy, and both she and her husband may have come into much closer proximity to Darden than did Broadwater, and we can not hold as a matter of law that the exercise of even extraordinary diligence on the part of the latter would have required him to sniff Darden’s breath at close range, to determine whether there might perchance be some alcoholic stimulant in his stomach, before putting the plaintiff in his charge. He testified positively that he did not know Darden ever drank, that Darden showed no signs of intoxication and appeared to be his usual self, and, in the absence of anything to the contrary, there is nothing from which it may be inferred that he was guilty of negligence in selecting Darden and entrusting the plaintiff to his care. Though Mrs. Jackson declared that Darden was under the influence of whisky while on the way from Kingston to her home (as already stated), she did not discover that he had ¡been drinking at all until after
There was nothing to put Broadwater on notice that Darden was not entirely sober and rational, and therefore not a safe person to whom the plaintiff could be entrusted; and there was nothing shown which could reasonably lead him to anticipate that Darden, sober and clothed in his right mind, so far as Broadwater did or could discover, would gratuitously insult an elderly woman placed .in his care, whom he had never seen or heard of before, during a short drive of two miles, on a public highway and through a well nettled country, where a call for assistance would probably bring a ready response at any point along'the way. The testimony shows that the plaintiff was more than 60 'years-of age at the time, and .had borne 13 children, 11 of whom were still living and one of whom was over 40 years of age;‘ and that Darden was only 21 .years old, had always borne an excellent reputation in the community in which he lived, and this reputation was known to Broadwater. Certainly Broadwater could not have even imagined under these circumstances that such a man, hardly more than a .boy, whom he had no reason to suspect was otherwise than sober and rational at the time, would propose sexual intercourse with a woman old enough to be his grandmother, and who was in fact a grandmother, whom he had never seen or heard of before. The thing was unnatural, and certainly it is unbelievable that a boy of his previous good reputation could have been guilty of so foul an
3. No general demurrer to the plaintiff’s petition .was interposed, as nominal damages were of course recoverable on the part of the plaintiff for the breach by the defendant of its contract of carriage. Except as passed upon generally in the two preceding divisions of this opinion, it is unnecessary to deal with questions
Judgment reversed.
Dissenting Opinion
dissenting. This case arose as an action by a female passenger against a railway company for injuries alleged to have been the proximate result of the defendant’s negligence in carrying her beyond the point of her destination. The jury returned a verdict for'$1,000 in favor of the plaintiff; and, in my opinion, from the evidence (the weight and credibility of which are to be determined by the jury alone), they were"authorized to find that the plaintiff boarded the defendant’s train at Ateo, paid her fare to Cave, and told the conductor that she wished to get off the train at the latter point; that the conductor agreed to stop the train at Cave and negligently omitted to do so, carrying her to Kingston, two miles beyond the point of her destination; that, upon passing Cave, she made complaint to the conductor, who then promised to stop the train at Kingston and there send her back to Cave; that, upon arriving at Kingston, the conductor put her off, as he had agreed to do, and there instructed the railway company’s local agent to send her back to Cave; that the local agent thereupon employed a young man.to take her back to Cave in his buggy; that it was 7 o’clock p. m. before the train arrived at Kingston, and it was dark before arrangements for her return to Cave were completed; that she was wholly unacquainted with Darden, the person employed to take her from Kingston to Cave, though the agent knew him well; that he had received a shipment of whisky, arriving on one of the trains of the defendant on the same afternoon, and the agent knew, or in the exercise of any sort of care could have known, that he was then and there, at the time of his employment for that purpose, either drunk or in a semi-intoxicated condition; all of which was unknown to the plaintiff until after the local agent had placed her in Darden’s buggy and she and Darden were well on the way to Cave; that, as a result of Darden’s drunkenness, he consumed at least one hour in. going the two miles from
This case differs from the eases of Burnett, Dorsey, and Price, cited in the majority opinion. In the Price case the Supreme Court held that the conductor had no authority to employ the landlord of a hotel to look after the plaintiff for a night. Further, in the Price case the plaintiff was injured by the explosion of a kerosene lamp in the hotel. The injuries received by the plaintiff in the Price case were not the natural and proximate consequence of carrying the plaintiff beyond her destination. In the exercise of extraordinary care, no such injury as did occur to the plaintiff in the Price case could have been foreseen by the conductor or any agent of the railroad. The negligence of the proprietor of the hotel was a separate and independent agency, not connected with the railway company. The same distinction may be drawn between the instant case and the case of Burnett. In that case the plaintiff, in walking from East Third street to Cherokee street, in the city of Rome, fell on the street and dislocated and broke her hip. There was a separate and independent agency responsible for her injuries. No amount of care would have caused the railway company, in the Burnett case, to have anticipated that any such injury would have occurred. In the Dorsey case the plaintiff had been carried by her station, and was put off near the next station, to walk home. In walking home she was frightened by loud voices of negroes who were walking behind her. No amount of care would have caused the. railway company, in the Dorsey case, to
In the instant case it is my opinion that, when the agents of the railway company placed Mrs. Jackson in charge of Darden, they must have known that he was at least in a semi-intoxicated condition. If, from the evidence, the jury were authorized to find that the local agent knew, or in the exercise of care could have known, the facts respecting Darden’s intoxication, the railway company .was bound to anticipate that just such injuries as occurred would occur. In the Price case, if the landlord of the hotel had been intoxicated, and his intoxication had been known to the conductor and unknown to Mrs. Price, and her injuries had been the same as in the instant case, the ruling in that case, on the question of proximate cause, would likely have been different.
I do not think it necessary to the plaintiff’s right to recover in this case that it be shown that the conductor or the other agent of the railway company had authority to employ Darden as a subagent. And it is not on the idea that the agent had authority to employ Darden that I disagree with the majority opinion in this cáse, but because of the fact that the agent placed this lady, at a time when she was a passenger, into a buggy with such a man as the jury were authorized to find Darden to have been. His conduct on the road with Mrs. Jackson was just such as a person with common experience, and such' knowledge as the agent had, might know would happen.
