Hanback v. Seaboard Coastline Railroad, Civ. A. No. 73-1486.

• Decision Date: 29 May 1975
• Docket Number: Civ. A. No. 73-1486.
• Citation: 396 F. Supp. 80
• Court: U.S. District Court — District of South Carolina
• Parties: Debora HANBACK, Plaintiff, v. SEABOARD COASTLINE RAILROAD (a corporation) and National Railroad Passenger Service, Defendants.

396 F. Supp. 80

Debora HANBACK, Plaintiff, v. SEABOARD COASTLINE RAILROAD (a corporation) and National Railroad Passenger Service, Defendants.

Civ. A. No. 73-1486.

United States District Court, D. South Carolina, Florence Division.

May 29, 1975.

Reginald C. Brown, Hyman, Morgan & Brown, Florence, S. C., for plaintiff.

C. Weston Houck, Florence, S. C., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

CHAPMAN, District Judge.

This matter was tried before the Court without a jury on May 13 and 14, 1975. Plaintiff alleges she was assaulted and raped by another passenger on Seaboard Coastline Railroad train No. 83 near Florence, South Carolina, on June 3, 1972, and asserts that defendants failed to provide the highest degree of care to protect her from such attack and thereby violated its duty to her as a paying passenger.

The answer sets up the defenses of contributory negligence, assumption of risk and the intervening act of the plaintiff's assailant make any negligence or breach of duty by the defendant remote and not a proximate cause of plaintiff's injuries and damages.

The Court has weighed the testimony and evidence presented at the trial, reviewed the exhibits introduced into evidence and studied the applicable law. Now in accordance with Rule 52, Federal Rules of Civil Procedure, it makes the following

FINDINGS OF FACT

1. The plaintiff Debora Hanback, now Debora Hanback Roberts, having been married on December 28, 1974, boarded the passenger train No. 83 of Seaboard Coastline Railroad in Alexandria, Virginia at approximately 7:30 p. m. on June 2, 1972. This train ran from New York City to Miami, Florida and plaintiff, then being 18 years of age, had purchased a ticket from Alexandria to Fort Lauderdale, Florida, where she intended to spend the summer working in the area and living with her great aunt. She had completed one year of college at the time, and was undecided as to whether she would return to college in the fall or work for a year and then return.

2. At the time the incident occurred plaintiff was a resident of the State of Virginia and at the time the action was commenced she was a citizen and resident of the State of North Carolina.

3. The defendant Seaboard Coastline is a corporation organized and existing under the laws of a state other than South Carolina and does business in South Carolina, owns railroad track and equipment and operates freight and passenger trains in and through the State of South Carolina.

The defendant, National Railroad Passenger Corporation, commonly referred to as Amtrak, was created under an Act of Congress (45 U.S.C.A. 541 et seq.) which provides in part:

". . . The Corporation shall be a for profit corporation, the purpose of which shall be to provide intercity rail passenger service, employing innovative operating and marketing concepts so as to fully develop the potential of modern rail service in meeting the nation's intercity passenger transportation requirements. The Corporation will not be an agency or establishment of the United States Government. It shall be subject to the provisions of this chapter and, to the extent consistent with this chapter, to the District of Columbia Business Corporation Act."

Amtrak is deemed a common carrier by railroad and subject to the Interstate Commerce Act, with certain exceptions. 45 U.S.C. § 546.

4. At the time of the assault upon the plaintiff Seaboard Coastline Railroad Company had eight employees and defendant Amtrak had one employee on train No. 83. The one Amtrak employee was Kathy Rowlette, a passenger service representative, who boarded the train in New York. She was responsible for the comfort and entertainment of passengers and also for explaining to them the purpose of and services provided by Amtrak.

5. Plaintiff had purchased a ticket for one of the reserved seat coaches. After boarding the train and finding her seat, she conversed for a while with a female passenger seated next to her. This was plaintiff's first trip on a train and she was not familiar with the various facilities offered by the train.

6. An hour or so after boarding the train the woman next to her advised that she was going to the lounge or club car and offered to bring plaintiff a beer or other beverage. Plaintiff accepted this hospitality and shortly after finishing the beer, she decided to find the club car. Upon arriving at the club car, she found it was crowded with various passengers, including a number of soldiers in the Army Reserve or National Guard, who were returning to Florida after an encampment of two week at Fort Eustis, Virgina. Four sleeping cars, housing the soldiers, had been added to the train in Petersburg, Virginia. These four coaches were at the rear of the train. The adding of such coaches and transporting of military personnel was a common occurrence on the railroad, and in the past, had created no unusual problems relating to the discipline and behavior of such military personnel.

7. The plaintiff joined in conversations with various groups, including several soldiers, who were enjoying the atmosphere and beverages purchased from the bartender in the car. Among the soldiers present in the club car and conversing with the plaintiff from time to time were Guy Register and Joseph Reyna. Plaintiff had not known either of these soldiers prior to entering the club car.

8. Some time prior to midnight, plaintiff left the lounge car and returned to her seat in order to change from a double knit dress to "hip hugger" bluejeans with a halter top. This outfit left a great deal of the plaintiff's midsection exposed, from the bottom of her halter, just a few inches below her breasts, to the top of her bluejeans, which rode on her hips about four inches below her navel.

9. After this change, she returned to the club car where she remained until the bartender discontinued the sale of drinks at midnight. The bartender then left the lounge car and went to his sleeping quarters in another car in the forward section of the train.

10. The plaintiff remained in the club car and some of the soldiers brought some of their own whiskey to the car and served it to those present. During this time the population in the car reduced to about six persons. During the evening the plaintiff admitted that she had had approximately three beers and one drink of whiskey after the bar had closed.

11. During the evening Joseph Reyna consumed seven drinks from the bar. These were one and a half ounce drinks served in the customary "minibottle". Some of these drinks were purchased by Reyna and others were purchased by soldiers who would go to the bar and buy a number of drinks for a group of passengers that might be sitting together. During this time Reyna was not boisterous or offensive and did not give any indication of intoxication, or evidence any intent to injure plaintiff or anyone else on the train.

12. While in the lounge car the plaintiff had indicated to one or more of the soldiers that she intended to stay up all night and see the sunrise. By 2:15 or 2:30 plaintiff was the only female left in the car with Reyna, Register, another soldier Wutkowski and an elderly black passenger, who was asleep in one of the chairs.

13. At this time Register and Wutkowski left the car. It was Register's intention to return after seeing Wutkowski to his sleeping quarters. The testimony does not reveal what happened to the elderly black passenger, but after Register and Wutkowski left the car, Reyna came over to the sofa where plaintiff was sitting and attempted to fondle her breasts and then to unbutton her halter. She left the sofa and ran to the ladies lounge, which was in the same car. This lounge or powder room contains an outer area which has mirors, chairs and places for ladies to apply makeup, comb their hair, etc. The door from the main part of the car into this section of the powder room does not contain a lock. Inside of the powder room is another door leading into the toilet area which contains a commode, sink and shower. The door to this area has a sliding bolt type lock.

14. Plaintiff screamed as she ran into the powder room and Reyna followed her. Since this room did not have a lock she retreated to the toilet area and locked the door. After Reyna had beat on the door for a while, plaintiff heard footsteps in the corridor. Thinking that Reyna had left, she opened the door slightly and found him still there. He forced his way into the toilet area, closed the door and the plaintiff was assaulted and raped. Photographs of both the plaintiff and Reyna show that each was scratched about the body, bitten and the plaintiff had a black eye. It is impossible to determine how long the assault and rape continued. Plaintiff testified that she was raped before the train got to Florence, South Carolina, again while the train was in the station at Florence (it stopped there for 15 to 20 minutes) and again shortly after leaving Florence, at which time she was rescued. The testimony of Reyna was so disoriented and incoherent as to be of no value. He is presently serving 10 years for assault and battery of a high and aggravated nature resulting from his encounter with the plaintiff. Although an assault and rape of plaintiff has been definitely proved, the Court has a serious question as to the number of rapes alleged and the total time elapsed. This doubt results from exaggerations and inconsistencies that appear in other parts of her testimony.

15. In addition to the assault and rape Reyna also forced plaintiff to perform fellatio upon him, during the course of which she bit him severely.

16. In the club car which contains the lounge area, the bar, the ladies powder room and toilet where plaintiff was assaulted, there is also a sleeping compartment which was occupied by Kathy Rowlette at the time of the assault. She had retired to her quarters at approximately 11:30 p. m. She testified that she heard four screams after she...