Louisville Taxicab & Transfer Co. v. Jackson

• Decision Date: 10 October 1952
• Citation: 251 S.W.2d 874
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE TAXICAB & TRANSFER CO., Inc. v. JACKSON.

Page 874

251 S.W.2d 874

35 A.L.R.2d 783

LOUISVILLE TAXICAB & TRANSFER CO., Inc. v. JACKSON.

Court of Appeals of Kentucky.

Oct. 10, 1952.

Robert L. Page, Louisville, for appellant.

Charles W. Anderson, Jr., Harry S. McAlpin, Louisville, for appellee.

CAMMACK, Chief Justice.

From a judgment awarding damages to appellee for personal injuries, this appeal is prosecuted. Appellant contends that (1) it was entitled to peremptory instruction; and (2) there was error in instructions.

Appellee and another woman were attempting to cross to the north side of Broadway at Fourteenth Street in Louisville. Each of them testified as to the facts and circumstances of the accident. Appellee stated:

'We were standing--we were in the street, in the middle of the street waiting for the westbound traffic to cross. We were right in the center, and we had to wait on the line in order for the other traffic to pass so we could continue crossing, and there was no other cars in front of this Yellow Cab because we had to stop and face the Yellow Cab. That is why we know so definitely it was a Yellow Cab, and not knowing anything would happen we didn't look for any numbers. We were just waiting for the cars to pass, and just as the car passed, this bottle come out of this window, but before the car got to us, what made us notice it before was that there was a lot of boisterous laughing and talking coming from this cab, and then after it got to us we could see a flash of bottle of some type, some shiny object I will say, in the back of the car, and just as it got to us, well, this bottle come out of the window and struck me in the mouth.'

The testimony of appellee's companion, Mrs. Tommie Howard, is very similar to and substantially corroborates the testimony of appellee. Appellant denies that a Yellow Cab with three male passengers was in this area at the time of the accident. However, B. A. Roberts, one of appellant's drivers, testified that he was in this area and had two women passengers in his cab and that he saw a bottle thrown from a car directly in front of him at the time and place appellee was injured.

Many cases are cited by each of the parties. However, most of the cited cases deal with the relationship of a carrier and passenger. None deals with the degree of care that a carrier must exercise to protect a pedestrian from the negligent or intentional acts of its passengers. A taxicab owner engaged in the business of transporting passengers for hire is a common carrier and is under a duty to exercise the highest degree of care for its passengers. Griffin v. Louisville Taxicab & Transfer Co., 300 Ky. 279, 188 S.W.2d 449; Dix v. Gross, 271 Ky. 231, 111 S.W.2d 673.

The case of Nashville, C. & St. L. Ry. Co. v. Lowery's Adm'r, 148 Ky. 599, 147 S.W. 19, 23, while it involves a railroad, is analogous to the instant case. Bridges, a passenger on defendant's train, was intoxicated and in possession of a gun. While the train was moving, Bridges leaned out of the window and shot Lowery, who was walking beside the tracks. He said he intended only to scare the old man. Action was brought against the railway company and judgment obtained. On appeal, the case was reversed because a peremptory instruction should have been given for the defendant. We said:

'It does not appear that, at the time the porter told Bridges to put his pistol up, Bridges was attempting in any way to injure any one, or that his handling of the pistol was likely to result in injury.

Therefore, when Bridges returned his pistol to his pocket, which he must have done, and was guilty of no further misconduct at Hazel than to halloa loudly to those leaving the train, we fail to see how it could have been reasonably contemplated from Bridges' conduct that, unless put off the train or restrained in some way, he would perceive some one walking along the track and deliberately shoot at him for the purpose of making him 'jump up.' Had he, with the knowledge of those in charge of the train, been engaged in shooting from the train, or had his conduct been such as to indicate with reasonable certainty that he intended to shoot from the train, a different case would be presented. As it is, the record fails to disclose any series of acts on the part of Bridges, or any single act, committed in the presence of those in charge of the train, from which the intended use of the pistol could have been gathered, or from which it could have been reasonably apprehended that Bridges would be guilty of the malicious prank resulting in the death of Lowery.'

The facts in the Lowery case are much stronger than those in this case. According to appellee's evidence, these facts appear: A few seconds before the accident occurred appellee heard boisterous laughing and talking coming from the cab; a shiny object was seen in the back seat of the car; and as the taxicab passed, appellee was hit with a bottle which came out of the cab window. There is no evidence that any of the passengers threw or intimated that they were going to throw a bottle from the window. Under the Lowery case, before liability will attach to a carrier, the latter must have knowledge that the passenger had previously thrown a bottle through the window or that the passenger's conduct was such as to indicate with reasonable certainty that he intended to throw a bottle through the window. There is no evidence that the carrier or his agent knew that his passenger had a bottle. As for the passengers' conduct, one witness testified that they acted as if they had been drinking.

Assuming that the passengers were intoxicated, that fact alone does not fasten liability on the carrier. In Payne, Agent v. Moore, 196 Ky. 454, 244 S.W. 869, 871, the case turned on whether or not the passenger who...