Bassell v. Hines

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Bassell v. Hines, 269 F. 231 (6th Cir. 1920)
• Decision Date: 07 December 1920
• Docket Number: 3416.
• Parties: BASSELL v. HINES, Director General of Railroads.

269 F. 231

BASSELL v. HINES, Director General of Railroads.

No. 3416.

United States Court of Appeals, Sixth Circuit.

December 7, 1920

Smith W. Bennett, of Columbus, Ohio, for plaintiff in error.

James I. Boulger, of Columbus, Ohio (Wm. H. Miller, of Columbus Ohio, and Henry Bannon, of Portsmouth, Ohio, on the brief) for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

The plaintiff below, plaintiff in error here, was a passenger on a Pullman chair car arriving in the railway station at Columbus. After the car stopped and the passengers for Columbus were told to alight, he arose from his seat, and, as he walked down the aisle toward the door, stumbled over a hassock or footstool which was in the aisle, or projected into it, and fell and received the injury for which he sought to recover in this action. He alleges that the insufficient lighting of the car co-operated with the careless placing or leaving of the obstacle to constitute actionable negligence. The court gave to the jury definitions of the care required respectively, from defendant and from plaintiff, and the jury found a verdict for defendant. Plaintiff assigns as error (1) That the instructions did not require from the defendant a sufficiently high degree of care; (2) that the jury was permitted to consider an issue outside the evidence; and (3) that upon one issue the burden of proof was wrongly placed.

The instructions put upon defendant the duty to exercise ordinary care to see that the aisle was not obstructed by a footstool. The court declined to charge that the defendant was bound to exercise the highest degree of care and prudence consistent with the conduct of its business. The stricter rule imposing the more extreme liability is the one which expresses the duty of a common carrier as to all the special perils of transportation. The cases to this effect are familiar. Some of them are cited in the opinion of this court, in Memphis v. Bobo, 232 F. 708, 711, 146 C.C.A. 634. The leading cases and the text-book discussions indicate (see Indianapolis Co. v. Horst, 93 U.S. 291, 296, 23 L.Ed. 898) that the reason of the rule is that the passenger delivers himself into the custody and control of the carrier, that he is helpless against these perils, and that he is compelled to, and rightly does, rely upon the carrier for protection. This reason extends to and supports the great bulk of the cases where the rule of the highest practicable care has been enforced. The cases where a passenger has been injured by an assault by another passenger (like Meyer v. St. Louis Co., 54 F. 116, 4 C.C.A. 221) or by one of the crew (like Lee Line v. Robinson (C.C.A. 6) 218 F. 559, 563, 134 C.C.A. 287, L.R.A. 1916C, 358) are not exceptions, because the duty of police protection, for which the citizen ordinarily relies upon the peace officers of the community, is one which the passenger necessarily abandons to the carrier when he becomes a passenger. Cases of injury from a falling berth (like Penn. Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141) or from an imperfectly secured trolley rope (Denver Co. v. Hills, 50 Colo. 328, 116 P. 125, 36 L.R.A. (N.S.) 213), or from an exposed rudder chain (Garoni v. Compagnie (Com. Pl.) 14 N.Y.Supp. 797), are nearer the margin line, but are not beyond the reason of the rule. All of these agencies were peculiar to the instrumentality of transportation, and their proper management and control, so that they would not harm a passenger, were wholly in the hands of the carrier.

Plainly, the reason of the rule does not extend to those comparatively trifling dangers which the passenger meets while upon a railway car only in the same way and to the same extent as he meets them daily in his home or in his office or on the street, and from which he easily and completely habitually protects himself. He may, more or less excusably, stumble and fall over a footstool or chair in his home, or an obstacle on the sidewalk, or a hassock in a car; he need never do any of these things, if he takes sufficient care. It did not need evidence to show that these hassocks were under the control of the passengers, and were by them placed and replaced as they desired; and this destroys the basis-- sole management and control-- for the extreme rule. There is, in our judgment, no sound reason why anything more than ordinary care, fitted to the circumstances, should be required, nor why the rule of highest practicable care should be applied to such a subject; we do not find any controlling authority, or any weight of authority, which so requires.

Pitcher v. Old Colony Co., 196 Mass. 69, 81 N.E. 876, 13 L.R.A (N.S.) 481, 124 Am.St.Rep. 513, 12 Ann.Cas. 886, is specially relied upon. In that case, a passenger, alighting from a street car, fell over another passenger's bag resting in the aisle. The trial court had given to the jury the rule of 'the highest degree of care consistent with practical carrying on of its business,' and plaintiff complained because the court had not given the rule of highest possible care. It was held only that to refuse to give this extreme rule was not error. In Lynch v. Railway Co., 92 Kan. 735, 142 P. 938, also relied upon, it is said that the carrier must use the highest practicable degree of care both in carrying passengers to their destination and in setting them down safely; but this was said in a case where the carrier had given an implied invitation to alight, and the passenger, who was responding, was injured by the starting of the train. We find no case, and we are cited to none, where deliberately and after discussion the stricter rule was decided to be applicable to such a case as this. On the other hand, the rule of merely reasonable or ordinary care, to be measured by the circumstances of the case, has been frequently applied under closely analogous circumstances. Such are the falling of a package from the parcel rack (Louisville Co. v. Rommele, 152 Ky. 719, 154 S.W. 16, Ann. Cas. 1915B, 267; Morris v. New York Cent., 106 N.Y. 678, 13 N.E. 455)...