Hall v. Seaboard Air Line Ry. Co.

• Decision Date: 15 August 1921
• Citation: 84 Fla. 9,93 So. 151
• Parties: HALL et al. v. SEABOARD AIR LINE RY. CO.
• Court: Florida Supreme Court

93 So. 151

84 Fla. 9

HALL et al. v. SEABOARD AIR LINE RY. CO.

Florida Supreme Court

August 15, 1921

Rehearing Granted Oct. 14, 1921.

Judgment Affirmed June 21, 1922.

Petition for Rehearing Denied July 27, 1922.

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Action by Mrs. Florence M. Hall and husband against the Seaboard Air Line Railway Company. Judgment for defendant, and plaintiffs bring error.

Affirmed.

Whitfield and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Passengers upon railway trains entitled to protection against insult indignity, and abuse from railroad's servants. Passengers upon railway trains have, by virtue of their contract for transportation, the right to be treated by the servants and employees of the carrier with kindness, respect, courtesy and due consideration, and to be protected against insult indignity, and abuse from such servants and agents.

Carrier's liability for indignities by servants to passenger based upon duty carrier owes to passenger through servants. A carrier's liability to a passenger for indignities offered to the latter by the agents and employees of the carrier rests upon the duty it owes through such servants and not for the reason that the act is incident to a duty within the scope of the servant's employment.

Impliedly agree to protect women passengers against wanton approach from servants of carrier. The rule announced in the foregoing headnotes applies with special strictness to women passengers. Her contract of passage embraces a stipulation implied that the corporation will protect her against wanton approach from servants or employees of the carrier engaged in the general business of transportation.

Liability as insurer against indignities offered to passenger by its employees rests upon relation which employees bear to carrier. A carrier's liability as insurer against indignities offered to a passenger by its employees rests upon the relation which such employees bear to the carrier as persons whom it has employed in the general transportation of passengers.

Railroad held not liable as insurer for assault made on passenger by employee on train during trip by employee as passenger. A stenographer employed in the office of a division superintendent, and whose duties are purely clerical, with power to exercise no authority or provide any arrangement for the comfort, protection, and assistance of passengers, is not classed as an active agent of the corporation in its active work of transporting passengers. And an assault made by such employee upon a fellow passenger on a train does not fall within the rule which makes the carrier's liability to the passenger assaulted that of an insurer.

Held to highest degree of care in making arrangements to protect passengers from danger which may naturally occur. A carrier of passengers is held to the highest degree of care vigilance, and precaution in making arrangements to guard against all dangers from whatever source arising which may naturally and according to the usual course of things be expected to occur.

Conductor invested with powers of peace officer for purpose of protecting passengers from assault by fellow passengers. A conductor or person in charge of a railway train is invested with the powers of a peace officer to protect passengers from assault by fellow passengers or by strangers, and he must exercise such powers faithfully, or the carrier will be deemed guilty of negligence, and must answer for any injury inflicted by such passengers.

Theory on which passenger is liable for assault made by one passenger on another stated. The liability of the carrier in such case rests, not upon the tort of the passenger, but upon the negligent omission of the carrier through its servants to prevent the tort from being committed.

Held to use of ordinary care in guarding passengers from unusual danger. In guarding a passenger from a danger which is not usual or not incident to ordinary travel, the carrier is held to the use of ordinary and reasonable care and diligence. It is the failure of the carrier through its agents to afford the required protection after such agents had reasonable grounds for believing that violence or insult was imminent upon which the liability of the carrier rests. It is not the fact of injury to the passenger that fixes the carrier's liability. The injury must have been of such character and inflicted under such circumstances as that it might have been reasonably anticipated or naturally expected to occur.

Mere presence of man and woman in car without other passengers would not require railroad to exercise extraordinary diligence to protect woman from assault by man. It is not to be assumed that the mere presence of a man and a woman in a car in which there are no other passengers is a situation fraught with danger to the latter, in the absence of some external indication of the former's character.

COUNSEL

George M. Powell and Giles J. Patterson, both of Jacksonville, for plaintiffs in error.

Fleming & Fleming, of Jacksonville, for defendant in error.

OPINION

WHITFIELD J.

In an action to recover damages for an assault made upon Mrs. Florence M. Hall while a passenger upon the railroad company's train, trial was had upon four counts of the declaration and the plea of not guilty to each count. The latter two of the counts are regarded as abandoned. The first two counts are, in substance, as follows:

That the plaintiff, Florence M. Hall, 'boarded and became a passenger on a train of this defendant, and was shown to a berth in the sleeping car attached to said train of this defendant by an agent or servant of this defendant; that said plaintiff, Florence M. Hall, retired to said berth for the night; that directly across the aisle from this plaintiff at that time was one Bruce Davis; that the said Davis did wantonly, willfully, and maliciously, with force and arms, assault said plaintiff while she was lying in her said berth, by violently grasping the plaintiff and by forcibly entering her berth and grappling with her; that before the said Davis entered the plaintiff's berth this plaintiff did push the button of the electric call system provided for passengers in said berth, and called for help, and did repeatedly and frantically continue to push said bell and call out for help, but none came; that there was on said car a porter, the servant or agent of this defendant company, and that it was then and there the duty of said porter to answer the calls given and bells rung by passengers, and to answer the rings of the bell and calls for help of the said plaintiff, Florence M. Hall, as aforesaid; and that said porter heard the ringing of said bell and said calls for help of said plaintiff, Florence M. Hall, and could have answered and responded to said calls and bells in time to have prevented the assault herein alleged, but that said porter did maliciously, willfully, and wantonly fail and refuse to respond to the plaintiff's said frantic and continued calling and ringing for help, as aforesaid; and that the said Davis was enabled thereby to make the said assault upon this plaintiff and to forcibly and violently enter the berth occupied by this plaintiff, and did then and there violently grasp the plaintiff and forcibly enter the berth occupied by her, against the peace and dignity of the state of Florida, thereby bruising and ill treating the said plaintiff; that in the course of the struggle of said plaintiff to free herself from the embraces of the said Davis the plaintiff was precipitated to the floor of said car, and was thereby wounded and bruised; that by reason of the failure of the said porter to respond to and answer the said plaintiff's rings and calls for help as aforesaid, and by reason of the failure of the said porter to prevent the said injuries to plaintiff as aforesaid and to protect said plaintiff as it was then and there the duty of said porter and the said defendant to do under the circumstances, this plaintiff was then and there assaulted, humiliated, and insulted and seriously injured in feeling and reputation, and brought into public scandal and disgrace, and did suffer great physical and mental pain, anguish, and nervous strain, and that said plaintiff has so suffered in mind and body at all times between said date and the date hereof, and is still suffering, and has continued to suffer as aforesaid.'

The other count is similar to the foregoing, except that it is alleged that----

The 'porter carelessly and negligently failed to answer said calls and bell signals as alleged, and that by reason of said carelessness and negligence of said defendant, its agents and servants, in failing to answer said calls for help and bells, the said plaintiff was subjected to said assault by said Davis,' etc.

The plaintiff testified:

'I had been asleep not awfully long when I felt a hand touch me here (indicating), and I hollowed and said, 'Is that you, porter?' and I rang the bell and called for help, and I kept ringing the bell and looked out at the curtain, and I saw a foot opposite my berth dart into the other berth, lower eight, right opposite me, and this foot was a white man. I first thought it might be the porter. I was frightened, and I hollowed, 'Is that you, porter?' but when I saw this foot, I hollowed again and called for help and kept ringing the bell, and--oh, it was some time; no one came at all, and I said, 'If there is anybody in this car, will they please come to my rescue,' and no one still came. With that, this man just made some remark and jumped into the berth again and grabbed me here (indicating), and we went all over the car and all over the floor. It was several minutes I was still scuffling with

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