Louisville & Nashville Railroad Co. v. Kelly

• Decision Date: 20 October 1883
• Docket Number: 10,939
• Citation: 92 Ind. 371
• Parties: The Louisville and Nashville Railroad Company v. Kelly
• Court: Indiana Supreme Court

92 Ind. 371

The Louisville and Nashville Railroad Company v. Kelly

No. 10,939

Supreme Court of Indiana

October 20, 1883

Petition for a Rehearing Overruled Jan. 2, 1884.

From the Vanderburgh Circuit Court.

Judgment affirmed.

S. B Vance, for appellant.

C. L Wedding and D. B. Miller, for appellee.

OPINION

Elliott, J.

On the night of the 4th of July, 1882, the appellee was a passenger on an excursion train of the appellants; he entered a car before the train moved, found it so crowded that he could not obtain a seat; remained standing until near midnight, when the conductor directed him to go forward to the front car and there take a seat; he undertook to obey this order, and in attempting to cross from one car to the other was, as the evidence adduced in his behalf tends to prove, either carelessly or purposely jostled by one of appellant's brakemen and thrown from the train.

Railway companies are bound to provide safe places for those whom they accept as passengers, and to make reasonable provision for seating those whom they undertake to carry Thomp. Car. 224; Hutch. Car., section 225.

The fourth instruction given in this case declares this rule of law, and was not erroneous. It is sometimes proper to give a general statement of the duty of carriers, and when the statement is a correct one, even though not strictly necessary under the evidence, there is no material error. Sawyer v. Sauer, 10 Kan. 466; Thomp. Charging the Jury, section 475.

The fifth instruction reads thus: "The defendant's obligation was to carry the plaintiff safely and properly; and, if the defendant entrusted this duty to servants, the law holds the defendant responsible for the manner in which they executed it. The carrier is obliged to protect the passenger from violence from its own servants, and from every source whatsoever." It is established law that carriers are responsible for the negligent and wilful wrongs of their servants suffered or done in the line of their employment. It is also true, as a general rule, that carriers are under a duty to protect their passengers from violence from all sources. In Goddard v. Grand Trunk Railway, 57 Me. 202 (2 Am. R. 39), it was said: "The law seems now to be well settled that the carrier is obliged to protect his passengers from violence and insults from whatsoever source arising," and this view is well sustained. Britton v. Atlantic, etc., R. R. Co., 43 Am. R. 749; Hutch. Car., section 596; Thomp. Car. 365. There rests on carriers this obligation to protect passengers from violence, and an instruction which asserts in general terms this obligation can not, in such a case as the present, be deemed erroneous. It is no doubt true that if the violence could not have been foreseen or prevented by the highest degree of care, the carrier would be absolved from liability. Thomp. Car. 364, 365; Hutch. Car., section 552; Grand Rapids, etc., R. R. Co. v. Boyd, 65 Ind. 526. This, however, does not prove that the statement of the general rule is incorrect, for the duty of protecting passengers from violence does rest on all carriers, although this duty is not an absolute one. If the care which the law requires is exercised by the carrier, then the duty is discharged and there is no liability.

A carrier is responsible for injuries wilfully or carelessly inflicted upon passengers by servants engaged in the performance of duties within the general scope of their employment, whether the particular act was or was not authorized by the master. The question in such cases is whether the servant was, when he inflicted the injury, acting within the line of his duties, and not whether the particular act was authorized. Terre Haute, etc., R. R. Co. v. Jackson, 81 Ind. 19; Noblesville, etc., G. R. Co. v. Gause, 76 Ind. 142 (40 Am. R. 224); Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116 (10 Am. R. 103); Stewart v. Brooklyn, etc., R. R. Co., 90 N.Y. 588; S. C., 43 Am. R. 185; Lynch v. Metropolitan, etc., R. R. Co., 90 N.Y. 77; S. C., 43 Am. R. 141.

The duty of a carrier is to safely carry passengers. This is a duty, but not an absolute one. It is true that carriers of passengers are not insurers of the safety of those whom they undertake to carry against all the risks of travel, but there nevertheless rests upon them this general duty of safely carrying. The adjudged cases, and the authors of text-books in stating the duty of carriers, state in general terms that they are under obligation to carry safely. Terre Haute, etc., R. R. Co. v. Jackson, supra; Christie v. Griggs, 2 Campb. 79. It was said in Sherlock v. Alling, 44 Ind. 184, in speaking of the duty of a carrier to his passengers: "His contract with them is to provide for their safe conveyance, as far as human foresight will go." An instruction stating in general terms that the carrier's duty is to carry safely could not have misled the jury in the present case, if, indeed, it could be said that such an instruction could have that effect in any. If the defendant had desired a more complete instruction upon this point, it would no doubt have been entitled to it, but as the instruction given purports to be a statement of a general rule, and is correct as far as it goes, and as no request was made to instruct more specifically upon this point, there is...