Cole v. Atlanta & W.P.R. Co.

• Decision Date: 05 August 1897
• Citation: 31 S.E. 107,102 Ga. 474
• Parties: COLE v. ATLANTA & W. P. R. CO.
• Court: Georgia Supreme Court

31 S.E. 107

102 Ga. 474

COLE v. ATLANTA & W. P. R. CO.

Supreme Court of Georgia

August 5, 1897

Syllabus by the Court.

It is unquestionably the duty of a railroad company to protect a passenger against insult or injury from the conductor of the train on which the passenger is riding; and, this being so the unprovoked use by a conductor to a passenger of opprobrious words and abusive language, tending to cause a breach of the peace, or to humiliate the passenger, or subject him to mortification, gives to the latter a right of action against the company.

Error from superior court, Coweta county; S.W. Harris, Judge.

Action by William H. Cole against the Atlanta & West Point Railroad Company. Judgment for defendant. Plaintiff brings error. Reversed.

W. H Bingham, W. L. Stallings, and D. B. Whitaker, for plaintiff in error.

Dorsey Brewster & Howell, for defendant in error.

FISH J.

The plaintiff's petition set forth a cause of action. "Railroad companies are liable for torts committed by their servants in the prosecution and within the scope of their business, whether the same be by negligence or voluntary." Railroad Co. v. Turner, 72 Ga. 292, 294. Accordingly, a plaintiff is entitled to recover damages for an assault made upon him, and "when to this are added other wrongs and violations of rights and duties; when he was insulted and vilified by their agents while under their protection; when they failed to exercise the 'extraordinary diligence' which the law requires at their hands for his safety and comfort,--surely these are circumstances entitling him to compensatory damages, as well for wounded feelings as for the inconvenience, pain, and suffering for this wanton and cruel violation of his rights by the conductor and his assistants." Railroad Co. v. Olds, 77 Ga. 681; Railroad Co. v. Condor, 75 Ga. 55; Gasway v. Railroad Co., 58 Ga. 216, 220. "Wounding a man's feelings is as much actual damage as breaking his limbs. The difference is that one is internal and the other external; one mental, the other physical." Head v. Railway Co., 79 Ga. 360, 7 S.E. 217. "The carrier's obligation is to carry his passenger safely and properly, and to treat him respectfully; and, if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. *** He must not only protect his passenger against the violence and insults of strangers and co-passengers, but, a fortiori, against the violence and insults of his own servants. If this duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted, through the negligence or the willful misconduct of the carrier's servant, the carrier is necessarily responsible. And it seems to us it would be cause of profound regret if the law were otherwise. The carrier selects his own servants, and can discharge them when he pleases, and it is but reasonable that he should be responsible for the manner in which they execute their trust. To their care and fidelity are intrusted the lives and limbs and comfort and convenience of the whole traveling public, and it is certainly as important that these servants should be trust-worthy as it is that they should be competent. It is not sufficient that they are capable of doing well, if in fact they choose to do ill; that they can be as polite as a Chesterfield, if, in their intercourse with the passengers, they choose to be coarse, brutal, and profane. The best security the traveler can have that these servants will be selected with care is to hold those by whom the selection is made responsible for their conduct." Goddard v. Railway Co., 57 Me. 213, 214, followed and approved in Hanson v. Railway Co., 62 Me. 84. The greater part of the above extract is quoted and adopted as the text in Hutchinson on Carriers (section 596). See, also, Ray, Neg. Imp. Duties (Pass. Carr.) 340; Booth, St. Ry. Law, § 372. "The carrier's liability is not confined to assaults committed by its servants, but it extends also to insults, threats, and other disrespectful conduct. Thus, a street-railway company is liable for the act of its driver in falsely charging a passenger, in the hearing of others, with passing counterfeit money in payment of fare, and in threatening him with arrest. So, if the master of a vessel forcibly drives the passengers out of the cabin; if he compels them to lodge with the common hands; if, by his indecency, rudeness, or brutality, he shock the modesty of a female passenger, so as to oblige her to quit the cabin, or as to render the passage comfortless, by a continued series of vexation, misery, and torment,--both he and his employers are liable." 2 Fetter, Carr. Pass. § 366, citing Lafitte v. Railroad Co., 43 La. Ann. 34, 8 So. 701; Keene v. Lizardi, 5 La. 431; St. Amand v. Lizardi, 4 La. 244. In this connection, see, also, Campbell v. Car Co., 42 F. 484, affirmed by United States supreme court in 154 U.S. 513, 14 S.Ct. 1151; Railroad Co. v. Blocher, 27 Md. 277; Craker v. Railway Co., 36 Wis. 657; Bryant v. Rich, 106 Mass. 180; Railroad Co. v. Whitman, 79 Ala. 328; Railroad Co. v. Flexman, 103 Ill. 546; Railroad Co. v. Jackson, 81 Ind. 19.

On the argument here, it was practically conceded by the distinguished counsel who represented the railroad company that, under the facts...