Bullock v. Tamiami Trail Tours, Inc.
Decision Date | 20 April 1959 |
Docket Number | No. 17461.,17461. |
Parties | Helen H. BULLOCK and Grover C. Bullock, Appellants, v. TAMIAMI TRAIL TOURS, INC., Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Victor M. Cawthon, Tallahassee, Fla., for appellants.
Chas. H. Spitz, A. Frank O'Kelley, J. Velma Keen, Tallahassee, Fla. (Keen, O'Kelley & Spitz, Tallahassee, Fla., on the brief), for appellee.
Before RIVES and TUTTLE, Circuit Judges, and SIMPSON, District Judge.
The appellants are Negroes, British subjects, natives of Jamaica, married to each other, and in their early fifties. For more than twenty years the husband has been a minister of the Church of England. The wife is a musician and teacher. Racial segregation is not practiced in the island of Jamaica.
Prior to 1956, the appellants had left that island on only one trip and that was to European countries and South American countries which did not segregate the races. They were not familiar with the racial segregation practiced in the Southern part of the United States.
In August 1956, they decided to make an extended visit to the United States, landing in Miami and going by bus first to Kansas City and then to New York. They made arrangements for the trip through the Mountain Travel Service before leaving Jamaica and bought tickets over the appellee's bus line. When the bus arrived in Perry, Florida, they were sitting together in the forward part of the bus usually occupied by white passengers. The husband was dark or black, while the wife, though a Negress, appeared to be a white woman.
At Perry, Florida, one Milton Poppell entered the bus and violently assaulted and beat the husband and slapped the wife. The circumstances are well described in the testimony of Poppell, quoted in the margin.1 Other evidentiary facts are stated in some detail in the opinion of the district court reported in 162 F.Supp. at page 203 et seq.
After reaching New York, the appellants brought suit against the appellee in a New York State Court, claiming that the appellee had breached the duties owed to them as passengers by omitting to warn them of a foreseeable danger, by failing to protect them from that danger, and by willfully, or at least negligently, aggravating the danger. The appellee, incorporated under the laws of Florida, being sued by citizens and subjects of Great Britain, had the case removed to the United States District Court for the Eastern District of New York.2 That Court transferred the action to the United States District Court for the Northern District of Florida.3
There the case was tried to the court without a jury. After fairly finding the evidentiary facts in a manner to which the appellants take only minor exceptions, the district court entered judgment for the defendant, feeling that the law of the State of Florida required it to do so, and said in part:
Bullock v. Tamiami Trail Tours, D.C. N.D.Fla.1958, 162 F.Supp. 203, 205.
We are not in agreement with the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier. In so far as those ultimate facts are simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, they are subject to review by this Court free from the restraining influence of the "clearly erroneous" rule, Rule 52 (a), Federal Rules of Civil Procedure, 28 U.S.C.A.; Galena Oaks Corporation v. Scofield, 5 Cir., 1954, 218 F.2d 217, 219. To the extent that the inference of negligence is controlled by Rule 52(a), supra, this Court, on the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746.
In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the case relied upon by the district court as dispositive of the case at bar, a female passenger was assaulted by a male passenger in a Pullman berth, they being the only two occupants of the car. Holding that the plaintiff's proof failed to support her allegations that a porter and conductor heard her calls and bells in time to have prevented the assault, the court stated:
In Kenan v. Houstoun, 1952, 150 Fla. 357, 7 So.2d 837, 838, where, after alighting from the Florida East Coast train, plaintiff was struck on the legs by an ejection of steam from a nearby L&N train causing her to move about rapidly and fall over baggage, the court, in quashing a judgment against the Florida East Coast Railway, stated:
Therefore, in Hall v. Seaboard Air Line Ry. Co. and Kenan v. Houstoun, supra, the rule may be generally stated that a carrier is liable for injury to its passenger caused by a fellow passenger or a third party if such injury by its nature could have been "reasonably anticipated" or "naturally expected to occur" or "reasonably foreseen" in time to have prevented the injury. 84 Fla. 9, 93 So. 157. If the injury could have been reasonably anticipated in time to have prevented its occurrence, the carrier is subjected to the highest degree of care to its passenger either to protect him from or to warn him of the danger.4
It was impossible for the driver to have protected the Bullocks from Poppell's assault after his intent became evident, but we think that the district court was clearly erroneous in holding that Tamiami could not have reasonably anticipated or foreseen the danger to the Bullocks in time to have at least warned them of its imminence. We can visualize no stronger case than this to show a situation where two bus drivers and the bus company officials should have reasonably anticipated that mischief was hovering about and that the Bullocks were in some danger.
The first driver testified that many people in West Florida would not approve of the Bullocks' being seated together toward the front of the bus. Driver Cunningham stated that there would have been less chance of trouble if the Bullocks had been sitting in the back. The first driver, after explaining to a complaining passenger that he could not move the Bullocks, heard another passenger say something like "they probably will move on down the line." Both drivers had actual notice of the two Company bulletins dated January 31, 1953, and January 23, 1956, the latter plainly warning the drivers of possible racial disturbances.5 Certainly, the first driver and, no doubt, Cunningham knew the Bullocks were Jamaicans and British Nationals, and it is logical to infer that the drivers knew the Bullocks were not experienced with "southern tradition." All of the appellee's witnesses testified that this was the first instance they knew of in that part of the country where a Negro man and a seemingly white woman were seated together on a public carrier.
Furthermore, this Court will take judicial notice (as the district court should have done) of...
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