City Electric Ry. Co. v. Shropshire

• Decision Date: 05 May 1897
• Citation: 28 S.E. 508,101 Ga. 33
• Parties: CITY ELECTRIC RY. CO. v. SHROPSHIRE.
• Court: Georgia Supreme Court

28 S.E. 508

101 Ga. 33

CITY ELECTRIC RY. CO. v. SHROPSHIRE.

Supreme Court of Georgia

May 5, 1897

Syllabus by the Court.

1. While, under ordinary circumstances, a railway company will be held legally responsible for the manner in which its conductor undertakes to exercise its right to expel from its cars one not entitled to ride thereon, yet where such a person expressly refuses voluntarily to alight, insultingly challenges the conductor to attempt to put him off, and then violently assaults the conductor upon his proceeding in a lawful manner to make the expulsion, and the latter thereupon resents and responds to the attack by resorting to great and unnecessary violence, the company will not be liable in damages for personal injuries thus inflicted, provided the assault made upon its servant was of such a nature as to excite his passions, and render him unfit for properly performing the duties devolving upon him in the premises. This is so because the person injured, by his own grossly improper conduct is to be regarded as having forfeited his right to immunity from unnecessary violence by inviting the conductor to disregard and abandon his official duties, and enter into a personal encounter on his own account and upon his individual responsibility.

2. There being in the present case evidence to show that the encounter between the plaintiff and the defendant's conductor was of the nature above indicated, and the law as announced in the preceding note constituting the main ground of defense relied on, it was error for the court, in its charge to the jury, to completely ignore the issue thus presented.

3. Evidence as to what transpired during a subsequent difficulty concurring upon the same night between the conductor and the plaintiff and two of his brothers was properly rejected, as being wholly disconnected with the main transaction under consideration, and as having no material bearing upon the merits of the case.

Error from city court of Floyd; G. A. H. Harris, Judge.

Action by Lucius G. Shropshire, by next friend, against the City Electric Railway Company, for damages from being expelled from defendant's car. From a judgment for plaintiff defendant brings error. Reversed.

Reece & Denny, for plaintiff in error.

E. P Treadaway, Dean & Dean, and Seaborn Wright, for defendant in error.

LUMPKIN P.J.

1. As a general rule, a railway company will be legally responsible for the misconduct of its conductor or other duly-authorized agent while undertaking to exercise on its behalf its right to eject from its cars a person not entitled to ride therein. Higgins v. Railway Co., 98 Ga. 751, 25 S.E. 837. And that the company's servant may have exceeded the authority with which he was clothed, or have acted in direct disregard of express orders given him in the premises, and in violation of the duty with which he was intrusted, will not ordinarily constitute a defense which the company will be heard to urge in its justification, as against one who has unjustly suffered from the wrongful act of such servant. This is so for the palpable reason that, the right to summarily eject intruders from its cars being coupled with a condition that such right must be exercised in a lawful manner, the company cannot delegate to an agent the power thus conferred upon it by law without at the same time becoming strictly answerable for any abuse thereof on the part of its agent. The general rule above stated is, however, subject to a very just and salutary exception, resting upon that broad principle of natural equity which precludes one from complaining of the act of another which the injured party has himself brought about by his own grossly improper conduct. This exception was thus stated and applied in Peavy v Railroad Co., 81 Ga. 485, 8 S.E. 70: "If a disorderly passenger defies the conductor, draws a pistol, and thereby induces the conductor to arm in order to expel him from the train, and if, after expulsion, he still uses grossly obscene and profane language, reeking with insult, on which a mutual combat with pistols ensues, the railroad company is not liable for the consequences, though the expelled passenger be wounded in the conflict, even if the conductor, excited by the danger and irritated by insult, be not fully excusable for the shooting. It is unjust to a master wrongfully to unfit his servant for exercising the care and prudence which are essential in guarding the master's interest and performing the servant's duty." Twice since has this court approved and recognized as correct the doctrine announced in that case. Railway Co. v. Christian, 97 Ga. 56, 25 S.E. 411; Railroad Co. v. Richmond, 98 Ga. 495, 25 S.E. 565.

Unquestionably when the company undertakes, through the medium of agents, to perform the duties it owes to the public, it is bound to exercise due diligence in an effort to select for its agents such persons only as are apparently competent and trustworthy, and capable of properly performing the duties assigned to them. The obligation thus imposed by law upon the company may be analogized to that resting upon it of...