Drake v. The Topeka Railway Company
| Decision Date | 11 December 1915 |
| Docket Number | 19,733 |
| Citation | 96 Kan. 727,153 P. 539 |
| Parties | J. E. DRAKE and IDA A. DRAKE, Appellants, v. THE TOPEKA RAILWAY COMPANY, Appellee |
| Court | Kansas Supreme Court |
Decided July, 1915.
Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
STREET RAILWAY--Conductor Killed by Drunken Passenger--Assumption of Risk--Liability of Railway Company. A conductor on a street car was shot and mortally wounded by a drunken passenger who became incensed because mildly remonstrated with by the conductor who in dealing with him followed the rules prescribed by the company for such emergencies, which rules were in effect expressions of the common-law duty of a carrier and in line with the dictates of common humanity. Held, that for the promulgation of such rules and the failure to warn the deceased of the dangers incident to the presence of intoxicated passengers the company is not liable, such rules being proper and such warning being needless.
J. M. Stark, of Topeka, for the appellants.
L. S. Ferry, T. F. Doran, and J. S. Dean, all of Topeka, for the appellee.
The plaintiffs appeal from an order sustaining a demurrer to their petition. A street-car conductor was shot and fatally wounded by a drunken passenger. The petition alleged in substance that in obedience to his company's rules and in accordance with his duty the deceased remonstrated with this passenger and sought to maintain order and proper conduct on the car, which angered the passenger, who upon arriving at his destination addressed profane and insulting language to the conductor, and was requested by him to leave the car, and thereupon backed out into the vestibule, and just as he was leaving the car fired the fatal shot; that the shooting was the result of the efforts made by the conductor to maintain order, that his assailant was too drunk to be responsible for his actions, and that the deceased sustained his injuries wholly and solely by reason of the rules and regulations of the company and his obedience thereof and compliance therewith. These rules are in substance that employees are required to exercise constant care to prevent injury to persons or property and in all cases of doubt to take the safe side; that conductors and motormen must treat all passengers with politeness, avoid difficulty, and exercise patience, forbearance and self-control under all conditions, and must not make threatening gestures or use loud, uncivil, indecent or profane language even under the greatest provocation; that no passenger shall be forcibly ejected without the order of an inspector, starter or official of the company unless the conduct of the passenger is dangerous or grossly offensive. No passenger shall be ejected for mere intoxication unless dangerous or offensive, and then with great care, and must be guided until free from probable injury.
It is impossible to see how the conductor could have taken employment without incurring the danger incident to all conductors from drunken and disorderly passengers who now and then infest the cars of common carriers. Equally difficult is it to perceive how the fact that the conductor remonstrated with the disorderly passenger without any attempt to eject him was the cause of the injury in the sense that it can be attributed to the negligence of the company. It is alleged that the effect and purpose of such rules were to benefit and protect the defendant's property and to protect it from the claims of passengers arising on account of the wrongful acts of other passengers and that such rules wrongfully placed the deceased in a situation of danger. But the rules appear to be but a fair expression of the common-law duty devolving upon common carriers and also the natural duty which would be required by the dictates of humanity and in no just sense can it be said that the rules made the car a place of danger to the conductor, because it is apparent that it was the malevolence of the murderous passenger that made the place dangerous and caused the injury.
No liability can arise save from failure of duty. While it is argued that the company owed it to its employee not to make the rules quoted and also the affirmative duty to warn him it is apparent that such rules were quite fair to him, their natural effect being to avert rather than to court danger. A conductor soon becomes more familiar with the passengers on his run than the officers of the company, and no conductor need be told what everybody knows, that a drunken man is likely to be dangerous. He was told by the rules, however, how to act when such a character had to be dealt with, and had he exceeded them and attempted to assault, eject or resist his assailant more promptly or more forcibly than he did he would probably have only met his mortal...
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