85 Ky. 547 | Ky. Ct. App. | 1887
delivered tiie opinion of the court.
A demurrer was sustained to the petition in the court below, and the plaintiff, declining to amend, has brought the case to this court, insisting that the facts alleged constitute a cause of action.
The plaintiff is the administrator of Wm. Winnegar, and the defendant is the Central Passenger Railway Company. ' At the time of the injury complained of, the defendant was a common carrier of passengers in the city of Louisville, running and operating its street cars through its employes, upon and between certain designated streets within the city, and the appellant’s intestate boarded the cars of the defendant, for the purpose of going from Fifteenth to Eighteenth street on Walnut. It is alleged that his intestate tendered the employe of the company, who was the driver, the ordinary fare, which was five cents, when the latter refused to receive it, and assaulted and struck his intestate, knocking him off the car on to the ground, where he was run over or struck by the car that the employe was then driving, and badly in
That the driver was at the time in the employ of the defendant; and running the cars for the transportation of passengers by its authority, and unlawfully, and while actively in the course of his employment, inflicted the alleged injuries on the intestate. The plaintiff, as his administrator, sues therefore to recover the damages caused by said injury, resulting in the physical and mental pain as before alleged from the date of the injury up to the death of the intestate. He prays judgment, etc. The facts stated are, in substance, those .set forth in the petition.
The court below seems to have regarded the action by the personal representative as an action for damages by reason of the death of the intestate, and if so, the demurrer was properly sustained. If the recovery is sought for the death of the intestate, the latter having no cause of action therefor against the company, none could survive to his administrator, as injuries affecting life were not the subject of a civil action at common law. Our statutes have enlarged the common law rule by making railroad companies and other corporations liable when death ensues to one by reason of the willful neglect of the agents or servants of the corporation; and when the party killed is not in the employ of the corporation, an action may be maintained for a less degree of neglect than either gross or willful neglect.
. No question can arise under the statute in this case, as it is not alleged that the intestate lost his life or
The statute of this State with reference to causes of action which survive, provides: “No right of for personal injury, or injury to personal or real estate, shall cease or die with the person injuring or the person injured, except 'actions for assault and battery, slander, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury; but for any injury other than those excepted, an action may be brought or revived by or against the personal representative,” etc. (General Statutes.)
The intestate might have instituted an action of assault and battery against the driver prior to his death, but dying before trial, the action under the statute would not survive to his administrator; but if he had sued the present appellee, alleging its existence as a carrier of passengers for hire, and that it had undertaken for a fixed sum to transport him as a passenger from one part of the city to the other, but in
The action is not for the loss of life, but for a personal injury growing out of the violation of the obligation on the part of the appellee to carry the intestate, while on its cars, to his place of destination, when paid or offered to be paid the regular fare.
The general doctrine with reference to master and servant, employer and employe, is, that when the employe committing the injury is not at the time executing the employer’s business, or not acting within the scope of his employment, the employer is not responsible. If one driving the cars for the corporation should leave the car and beat or abuse one on the sidewalk, the company would not be responsible. Such an assault could not be said to have been authorized by the company, or a part of the driver’s employment, nor can it be said that it was done in the course of the employment. In this case the appellant’s intestate had entered the appellee’s car, tendered his fare, and placed himself under the care and protection of the driver, to be carried as a passenger from one part of the city to another.. It then became the duty of the driver to accept the fare, and to carry the intestate from the one street to the. other, without offering him personal violence, unless, necessary for his own protection, the preservation of order in the car, or the safety of the other passengers. It is a matter of contract, with obligations assumed by
Whether that contract is violated willfully and intentionally, or through ignorance on the part of the driver,, is immaterial.
It is the duty of the carrier to furnish competent and careful drivers, that its passengers may be transported, without fear or molestation from either the driver or others in the car, if in the power of the driver to prevent it, unless the conduct ■ of the passenger requires violence to be used towards him.
The doctrine is now well-established, “that the law implies a contract for the protection of the party carried from the insults and wanton interference of strangers, fellow-passengers, and the carrier and his servants, and for every violation of the implied contract by force or negligence, the carrier is liable in an action of contract or tort.” (Addison on Torts, volume 1’, page 33, note, and authorities there cited.)
The law makes the carrier responsible for the acts of the person in charge of the car, and who for the time has the voluntary custody of the passenger, with the implied obligation that he will exercise the highest degree of diligence to transport him safely. In Goddard v. The Grand Trunk Railway, 57 Maine, 202, it was held that the carrier was obliged to protect his passenger from violence or insult from whatever source it arises. He must use all such reasonable precautions as are necessary for that purpose. In Railroad v. Finney, 10 Wisconsin, 388, it was held that where the misconduct of the agent causes a breach of the principal’s contract, he will be liable whether such conduct be
Here the agent in charge of the car committed the wrong, and if the statements contained in the petition are true, and they must be so regarded on demurrer, the tort was of a most aggravated character, and in palpable violation, of the duties incumbent on the carrier by reason of its relation to the passenger arising from the implied contract. The moment the appellant’s intestate
It is not material whether the violation consists in putting the passenger off at a point before his destination is reached, or by insulting him, or in assaulting him; they are all plain violations of duty, for which a recovery may be had.
In this case the administrator is claiming to recover damages for the physical and mental agony of his in
This is the distinct claim made in the petition, and we perceive no reason why a recovery should not be had if' the case is made out. The fact that the injury finally resulted in the death of the intestate did not destroy the right of action on the contract, or for the tort growing out of it; for without the contract no liability would exist against the company. If Billings had died in the case against Sherley, the action would have: survived and a recovery been permitted- for his mental and bodily suffering previous to his death. It is true it is said in the opinion that Billings was assaulted; but it is further said that the assault was a violation of the contract between the carrier and the passenger, and for that .reason the recovery below was affirmed by this, court, ¡’At common law torts to the person survived, when the action could be framed in form ex contractu Ín the case of Hansford’s Administratrix v. Payne, 11 Bush, 380, the statute in regard to the character of' actions that survived was considered, and it was there held that, although the statements of the petition were not sufficient to authorize a recovery for the death by reason of willful neglect, under the statute, still the administrator was entitled to recover for the suffering and mental agony of the intestate, caused by taking the poison, from the time it was administered up to his. death.
In our opinion the facts alleged present a cause of action, and the judgment below is therefore reversed, with directions to overrule the demurrer, and for further proceedings consistent with this opinion.