Gasway v. The Atlanta

• Decision Date: 31 January 1877
• Parties: Richard C. Gasway, plaintiff in error. v. The Atlanta and West Point Railroad Company, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 216

Richard C. Gasway, plaintiff in error. v. The Atlanta and West Point Railroad Company, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Railroads. Principal and Agent. Damages. Torts. Ratification. Before Judge Buchanan. Troup Superior Court. November Term, 1876.

Reported in the opinion.

Bigham & Whitaker, for plaintiff in error.

A. W. Hammond & Son, for defendant.

Jackson, Judge.

Gasway sued the railroad company for damages on two counts: first, for the illegal and tortious conduct of the baggage-master, assisted by the conductor, when the plaintiff applied to have his baggage checked; and secondly, for the illegal and tortious conduct of the same conductor, some months afterwards, towards Gasway on the cars.

*The first count was to the effect that the baggage.

master beat and maltreated the plaintiff wrongfully while engaged in having the baggage of his wife checked; the second, that when he was riding on the cars with his wife afterwards, the conductor awoke him from sleep, and recognizing him, threatened to shoot him, and made him jump off the cars when they were running.

The proof on the first count was conflicting as to the cause and extent of the abuse of plaintiff; but the fact seems to be clear that when the plaintiff, who was a colored man, asked for a check for the baggage of his wife, whom he had seated, the baggage-master refused it, unless he would produce his passenger, saying that he was not allowed to give checks otherwise by the rules of the company. It was protested by the plaintiff, and another who was helping him with the baggage, that he was no porter, and the passenger was his wife, but all in vain. The check was not given to him. As the plaintiff turned off, he said it was a damned bad rule, if it was a rule; the baggage-master, who swore that the plaintiff called him a damned fool, and perhaps might so have understood him, jumped out of his car and followed the plaintiff alongside of the train towards the passenger car, and caught and commenced beating him. The conductor came up and took hold of the passenger's arm, and it seems, from the testimony of the plaintiff and the mayor of LaGrange, where the trouble arose, took part in the encounter, until the mayor arrested the parties. The plaintiff's wife, frightened, left the cars. This transpired in June. Afterwards, in October, the plaintiff and wife had been to Atlanta, and were returning: to LaGrange, when the same conductor waking up the passengers to see that they got off at the right stations, recognized plaintiff, cursed him and threatened to shoot him, and went to get his pistol for that purpose. The plaintiff, frightened, left his wife and jumped off the car when running, and was off on the return of the conductor, who, asone passenger testified, had a pistol on his return, and, as the plaintiff\'s wife swore, *said to her, it is well he has gone, or you would have been a widow. There is some conflict of evidence, but perhaps the foregoing summary gives the weight of it.

It also appeared that these agents were retained by the company, either in the same or other positions on their own road, or roads in connection with theirs.

On this evidence, under the charge of the court, the jury found a verdict for ten dollars; the plaintiff moved for a new trial, it was denied to him, and the errors assigned are, that the court charged the jury to the effect that unless the act of defendant's agents tended to facilitate or promote the business for which the agent was employed, the company was not responsible, and refused to charge to the effect that a carrier of passengers is bound to extraordinary diligence on the part of himself and agents, to protect their lives and persons, and that the principal is responsible for the acts of its agents within the range of their employment; and if the conduct of the agent within such range of employment be such as would give vindictive damages against the agent were he principal, then the jury would be authorized to give such damages against the railroad company; and also, that the court refused to charge that the duty of the company extended to the protection of passengers from the violence and insult of employees, not only while on the train, but on the arrival of the train at depots; that it extended to passengers who were buying tickets and checking baggage, and to the platform or area necessary to be used for those purposes.

So that three questions are made here: First, are railroad companies liable for the tortious acts of their servants, done in their business, and within the range of business entrusted to them? Secondly,...