Brunswick & W.R. Co. v. Ponder

• Decision Date: 07 February 1903
• Citation: 43 S.E. 430,117 Ga. 63
• Parties: BRUNSWICK & W. R. CO. v. PONDER.
• Court: Georgia Supreme Court

43 S.E. 430

117 Ga. 63

BRUNSWICK & W. R. CO. v. PONDER.

Supreme Court of Georgia

February 7, 1903

Syllabus by the Court.

1. A railroad company is bound to use extraordinary diligence to protect a passenger, while in transit, from violence or injury by third persons; but, where the passenger is arrested by officers of the law, the company is under no duty to inquire into the legality of the arrest.

2. Where such arrest by officers of the law is illegal, but the railroad company has no notice of that fact, the company is not liable to the passenger for a failure to interfere with the officers and prevent the arrest, or for stopping the train to allow the officers to remove their prisoner therefrom.

3. In such a case the company is under no duty to see that the officers use only such force as is necessary to make the arrest.

Error from city court of Waycross; J. C. Reynolds, Judge.

Action by John Ponder against the Brunswick & Western Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

W. E Kay, S.W. Hitch, and J. C. McDonald, for plaintiff in error.

John T Myers, for defendant in error.

SIMMONS C.J.

Some time in June, 1901, Ponder boarded a passenger train of the Brunswick & Western Railroad Company at Fairfax, Ga. He paid his fare to Waycross. When the train stopped at Waresboro, a station intermediate between Fairfax and Waycross, three men boarded the train, assaulted Ponder, and removed him from the train. After settling for a small sum his claims against the individuals who assaulted him, Ponder brought suit against the railroad company for its failure to protect him. The jury returned a verdict for the plaintiff for $500. The company moved for a new trial, the judge overruled the motion, and the company excepted. The evidence shows that when the train stopped at Waresboro the conductor stepped off to assist the passengers who were getting on or off. While he was so engaged, three men boarded the train to arrest Ponder entering the train at a point other than that at which the conductor was standing. One of these men was marshal of the town of Waresboro, another was the deputy marshal, and the third was specially deputized by the marshal to assist in making the arrest. They had no warrant, and seem to have arrested Ponder for having failed to pay one of them a debt. They ordered him to get off of the train with them, and, upon his refusal, began to strike and beat him. At this juncture the conductor came in, and discovered, for the first time, that the officers were on the train, making an arrest. He took hold of one of them, and remonstrated with them all; suggesting that they go on to Waycross, the train having already started. This they refused to do, ordering the conductor to stop the train. The conductor, when he came in, had heard Ponder tell the officers that he had paid them all he owed them; but the conductor made no investigation as to the charge against Ponder, and did not try to ascertain whether the officers had a warrant. He knew that the officers were such, and they had on former occasions arrested persons on his train, and taken them off. Upon their demand, he had the train stopped before it had left the corporate limits of the town. The officers and Ponder then left the train. The motion for new trial complains that the verdict is contrary to the evidence and without evidence to support it, and that the court erred in certain charges and refusals to charge. Our idea of the law of the case, as given below, covers these assignments of error, and we will not deal with them separately.

1. A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence or injury by third persons. If a third person boards the train and assaults a passenger it is the duty of the railroad company to use extraordinary care to protect the passenger, and in this state the conductor of a train carrying passengers is invested with all the powers of a police officer. Pen. Code, § 902. At the same time, a conductor would not be justified in interfering with the lawful arrest of one who happened to be a passenger on his train. This much is clear. The present case, however, falls within an intermediate class. The arrest of Ponder was not a lawful one, but of this fact the officers of the railroad company had no notice. The...