Krantz v. Rio Grande Western Ry. Co.

• Decision Date: 31 August 1895
• Docket Number: 552
• Citation: 41 P. 717,12 Utah 104
• Court: Utah Supreme Court
• Parties: JOSEPH KRANTZ, APPELLANT, v. RIO GRANDE WESTERN RAILWAY COMPANY, RESPONDENT. [1]

41 P. 717

12 Utah 104

JOSEPH KRANTZ, APPELLANT, v. RIO GRANDE WESTERN RAILWAY COMPANY, RESPONDENT. ^[1]

No. 552

Supreme Court of Utah

August 31, 1895

APPEAL from the District Court of the Third Judicial District. Hon S. A. Merritt, Judge.

Action by Joseph Krantz against the Rio Grande Western Railway Company for damages for a wilful and malicious assault committed by defendant's servants. The court withdrew the issues from the jury upon the first count and directed a verdict for defendant. From a judgment entered upon the verdict and from the order overruling plaintiff's motion for a new trial, he appeals. Affirmed. There was a verdict for plaintiff on the second count and from the order setting it aside and granting a new trial, plaintiff appeals.

Reversed.

Mr. E W. Taylor and Mr. C. S. Varian, for appellant.

FIRST APPEAL.

The court erred in withdrawing the issues from the jury and directing a verdict for defendant. We affirm the following propositions: First. Appellant was a passenger when assaulted. Second. In any event, the question was for the jury. The case was tried by the court upon an erroneous and utterly inadmissible theory as to when the relation of passenger begins and when it ends. This ruling was that in order to institute the relation the person must either pay fare or tender it, and his fare or offer, must be accepted by the carrier. This appears by his charge.

It is not necessary that the contract for passage should be actually made or the fare actually paid, nor that a person should be on the train to create the relation. If he is on the premises of the carrier, or in a vehicle under its control going to the station with the bona fide intent to become a passenger, the carrier owes to him a duty as such. 2 Woods' Ry. Law, pp. 1037 et seq. 1045-1046; Thompson on Carriers (1 ed.), p. 43; Hutchinson on Carriers, 557a, 565 Pierce on Rwys. 275; Hamilton v. R. R. Co., 21 Am. &amp E. R. R. Cases, 338; Gordon v. R. R. Co., 40 Barb. 546; Cleveland v. Steamboat Co., 68 N.Y. 306; Hunt v. R. R. Co., 40 Miss. 391; Allender v. R. R. Co., 37 Ia. 270; Harris v. Stevens, 31 Vt. 79; S. C. 73 Am. Dec. 340; Grimes v. R. R. Co., 36 F. 72; Brien v. Bennett, 8 Car. & P. 724; Buffett v. Troy & Boston Co., 40 N.Y. 171; Norfolk Ry. Co. v. Galigher, 16 S.E. 935; Langman v. Great Western Co., 115 E. C. Law, 185. The same principle must apply to the ending of the journey. "A passenger arriving at the station continues to be a passenger for a reasonable time until he has left the premises. So, too, a person bona fide at the station for the purpose of taking passage upon a train is a passenger, although he has not in fact purchased a ticket." 2 Wood's Ry. Law, 1163; Waller v. M. K. T. Ry. Co., 59 Mo.App. 411; 2 Rap. & Mack's Dig. Rw. Laws, 310, 311 and cases; Shelly v. Billings, 8 Bush. 147; Winnigais Admrs. v. Ry. Co., 85 Ky. 552.

The series of acts, from the getting off the train until appellant was driven away, were so connected as to make them practically one transaction, and it should have been left to the jury to say whether a reasonable time had elapsed for the appellant to lose his rights as a passenger purely, and whether the beatings and driving away were acquiesced or participated in directly or indirectly by the respondent, through its vice-principal. The respondent is liable to a passenger--or one intending in good faith to become such--absolutely for the acts of its own servants, and relatively for those of strangers. Appellant told the agent he wished to take a train. 2 Wood's Ry. Law, 119; Thompson Carriers, p. 363-4; Craker v. Ry. Co., 36 Wis. 657-673; Wright v. Ry. Co. (Colo.), 35 P. 197; Goddard v. G. Trunk Ry. Co., 57 Me. 202; Norfolk Ry. Co. v. Galigher, supra; R. R. Co. v. Darling, 33 N.E. 636; Stewart v. R. R. Co., 90 N.Y. 590; Hansen v. R. R. Co., 62 Me. 84; Fick v. R. R. Co., 34 A. & E. R. R. Cases, 378 and note, with cases cited on p. 381; R. R. Co. v. Jopes, 142 U.S. 26-27. The company had delegated its powers over the premises to the station agent, and is held to be present in his person. Com. v. Powers, 7 Metc. 601; 1 Wood Ry. Law, 450. The duty of the agent was plain. He should have led the way in protecting appellant. At least he should have made an earnest endeavor to do so, bringing all of the authority with which he was clothed into action. Penn. R. R. Co. v. Hinds, 53 Pa. St. 503; R. R. Co. v. Burke, 53 Miss. 227.

SECOND APPEAL.

Whether in strictness plaintiff was a passenger or not is unimportant. He entered the premises for the purpose of taking the train, as his own evidence reinforced by attendant circumstrnces clearly establishes and the jury so found. Respondent insists that the injuries were inflicted by the persons not acting as agents of the company, nor within the scope of any duty owing by them to the company, nor acting under its authority, or by its request, but acting wholly on a private grudge and quarrel. But the theory of the objection is in violation of principle, and is not countenanced by the law. The law binds passenger carriers to absolute protection of passengers against the wilful and malicious acts of their own servants, and also of strangers. The distinction seems to be this: When the liability of the master depends on the sole fact that the person inflicting the iniury was in some business his servant, if on inquiry it is found that the act was not done while in the transaction of the master's business, then the act is not that of the master but of the servant. But this rule cannot be applied when the master, either by contract or by reason of imperative duty imposed by law or public policy, is under obligations to protect the injured person from the servant's wrongful act as well as his own. In such case the master is liable--at least, to make actual compensation--as though the act was his own personal act.

The distinction is clearly expressed in Dillingham v. Russell, 73 Tex. 47; S. C. 15 Am. St. Rep. 757; Thompson Carriers, pp. 368-9. And the supreme court approves the distinction, saying: "But owing to the peculiar circumstances which surround the carrying of passengers * * * a more stringent rule of liability has been cast upon the employer; and he has been held liable, although the assault was wanton and wilful and outside the scope of the employment." R. R. Co. v. Jopes, 142 U.S. 27; Goddard v. G. Trunk, 57 Me. 202; Eades v. Ry. Co., 43 N.Y.App. 545; Smith v. Ry. Co., 18 N.Y.S. 759. As to the connection of the tramps with the trespass, we again point to the fact that the servant of the respondent was the moving spirit, and that the entire wrong was perpetrated in the very presence and under the eye of the company, standing there in the person of its vice-principal. Certain it is that the new trial was not granted upon these assignments, and we may dismiss their consideration with the pertinent inquiry, "If the test of the master's liability is in the question of the servant's act being within the scope of his employment, could a passenger carrier ever be held for its servant's wilful assault on a passenger?" Its servants are never employed to beat or kill passengers. The position of counsel then is, that having permitted the servant of the company acting with strangers, to force appellant into a situation whereby he lost his money, upon his return to renew his claim for protection and transportation, respondent owed him no duty. We fail to see why the rule as to gratuitous passengers would not apply in all its force to this case, even upon the assumption that appellant had no money. Hutchinson on Carriers, § 566; R. R. Co. v. Derby, 14 How. 468; Rogers v. Kennebec Co. (Me.), 29 A. 1070-1.

Messrs. Bennett, Marshall & Bradley, for respondent.

FIRST APPEAL.

The duty of railway companies to persons who come to their stations as passengers is two-fold: (a) As the owners of fixed property to guard persons thereon at their invitation from pitfalls and concealed dangers. This duty is not peculiar to common carriers. (b) To care for the safety of persons who as passengers have surrendered the control of their actions to the carrier. 2 Wood on Railways, § 298 (2d ed.) The relation of carrier and passenger ends when the journey contracted for is completed and the passenger has either left the railway station premises or been afforded a sufficient time to so leave. Patterson on Rwy. Acc'nt Law, § 221; Imhoff v. C. & M. R. R., 20 Wis. 344. But if instead of leaving or attempting to leave the claimed passenger resumes control of his own person, stays on the premises of the railway for his own purposes; goes to a portion of the premises clearly not intended for him, and that not in an effort to leave the premises, but with the expressed intent to there vend his wares, he has severed the relation that bound them and ceased to be a passenger. The duty to protect is correlative to the power to control. No authority has been cited, none we believe, can be found, that would justify the contention that plaintiff was a passenger at the time of the assault complained of. Many authorities oppose it. Heinlein v. Boston & Prov. Ry. Co., 147 Mass. 136-9; June v. Ry. Co., 153 Mass. 79; Buckley v. Old Colony R. R., 161 Mass. 27; Allerton v. Ry. Co., 34 A. & E. Ry. Cases, 563. Ry. Co. v. Krouse, 30 Ohio St. 222; Platt v. Ry. Co., 2 Hun, 124; Central Ry. Co. v. Peacock, 9 Am. St. R. 425, 69 Md. 257. If the plaintiff was not then a passenger it needs no argument to support the proposition that the defendant is not liable for the act of the section foreman. Cooley on Torts, pp. 625-627; Patterson Ry. Acc'dnt Law, 117 et. seq.

SECOND APPEAL.

The second appeal presents a different question in one of its aspects. The defendant moved for a new trial on the ground (a) That the evidence was...