Hatfield v. Payne

• Decision Date: 13 June 1922
• Citation: 242 S.W. 32,195 Ky. 310
• Parties: HATFIELD v. PAYNE, AGENT.
• Court: Kentucky Court of Appeals

242 S.W. 32

195 Ky. 310

HATFIELD v. PAYNE, AGENT.

Court of Appeals of Kentucky.

June 13, 1922

Appeal from Circuit Court, Bullitt County.

Action by Lon. Hatfield against John Barton Payne, as Agent. Judgment for the plaintiff for only a small portion of the amount sued for, and plaintiff appeals. Affirmed.

C. P Bradbury and J. R. Zimmerman, both of Shepherdsville, for appellant.

B. D Warfield and Moorman & Woodward, all of Louisville, and J. F Combs, of Shepherdsville, for the appellee.

SAMPSON J.

Appellant, Hatfield, brought this action in the Bullitt circuit court against the Director General of Railroads to recover $1,086.40 damages which he averred he suffered: (1) By reason of being carried beyond his station and made sick; (2) failure of the railroad to provide him, a passenger, with a seat; (3) exposure in the crowded coach to pickpockets by whom he was robbed of $86.40 while standing in the thronging aisle. A trial resulted in a verdict for the plaintiff in the sum of $1.75. From the judgment entered upon this verdict Hatfield appeals.

A reversal of the judgment is prayed by appellant upon three alleged grounds: (a) The court erroneously instructed the jury that no recovery could be had by appellant on account of the robbery; (b) the court failed to instruct the jury upon the whole law of the case; (c) the court gave erroneous instructions to the jury.

(a) It is averred in the petition that the plaintiff, while standing in the crowded aisle of the passenger coach, was robbed of $86.40 as a consequence of the company's failure to properly protect him by giving him a seat as was its duty. It is not alleged that any of the employés of the company, or any one connected with, aided or participated in the alleged robbery, nor is any definite person charged with the crime. It appears that appellant, Hatfield, with others, boarded the train at Salt River, bound for South Louisville. It was on December 28th, during the holidays, and the train was crowded to such an extent that he was unable to obtain a seat, and consequently had to stand in the aisle the entire journey. Many other persons were also standing. Some time during the journey he says he lost his money, but just when or how he does not know.

The railroad company, as a general rule, is not liable for torts committed by one passenger upon another, unless the conductor or other servants in charge of the train knew, or by the exercise of ordinary care could have known, of the purpose or intention on the part of the tort-feasor to commit the wrong against his fellow passenger, and with such knowledge failed to exercise reasonable care to prevent such wrong and to protect the passenger against whom it is directed. While we have considered no case involving the facts charged in the petition, we have had before us cases in which one passenger assaulted or injured another, and the rule above stated was applied in those cases. L. & N. R. Co. v. McEwan, 31 S.W. 465, 17 Ky. Law Rep. 406; Clarke v. L. & N. R. Co., 49 S.W. 1120, 20 Ky. Law Rep. 1841; L. & N. R. Co. v. Renfro's Adm'r, 142 Ky. 590, 135 S.W. 266, 33 L. R. A. (N. S.) 133; Bogard's Adm'r v. I. C. R. Co., 144 Ky. 649, 139 S.W. 855, 36 L. R. A. (N. S.) 337. If appellant was robbed there was an assault.

While a carrier of passengers is under the duty of protecting his passengers from assault while on the journey, this protection, of necessity can only be afforded when the carrier or his servants know in advance of the intended assault or from the surrounding circumstances and facts known to him or them should, as reasonable persons, have apprehended that such an assault was about to be committed. It is the negligent omission of the carrier through its servants to prevent the tort from being committed which renders the carrier responsible. By his contract with the passenger the carrier undertook to carry him safely, and it so negligently performed this contract that the passenger was injured, and the gist of an action for such injuries is the negligence of the carrier or its officers in charge of its conveyance. 4 R. C. L. p. 1184. It is not, however, because a particular passenger is known by the carrier's servants to be in peril at the hands of a fellow passenger or stranger that a failure to use the means at command to protect him will be actionable negligence; but it is because there is a known or discoverable danger that an injury may be done to a passenger and because no effort is made to avert that injury from all the passengers that the carrier is liable if an injury is inflicted on one of the passengers when it could have been prevented. It is just as incumbent on the carrier to protect all its passengers from assault by a fellow passenger when its servants have knowledge or...