McPherson v. Tamiami Trail Tours, Inc.

Decision Date18 October 1967
Docket NumberNo. 23452.,23452.
Citation383 F.2d 527
PartiesReverend Negil L. McPHERSON, Appellant, v. TAMIAMI TRAIL TOURS, INC. and Ned C. Boutwell, Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Howard Moore, Jr., Atlanta, Ga., Jack Greenberg, James M. Nabrit, III, Michael Meltsner, Charles Stephen Ralston, New York City, for appellant.

Melburne D. McLendon, Bryan, Carter, Ansley & Smith, Atlanta, Ga., for appellees.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and BREWSTER, District Judge.

Rehearing En Banc Denied October 18, 1967.

TUTTLE, Chief Judge:

This is an appeal from a denial of motions for directed verdict and for judgment notwithstanding the verdict or, in the alternative, for a new trial in a civil action for damages brought in the District Court for the Northern District of Georgia.

As the appellant recognizes, he has a heavy burden to carry when seeking to have an issue of negligence withdrawn from the jury in the Federal Court.

"In ruling on the motion for directed verdict or for judgment now, it is the duty of the trial court to take that view of the evidence most favorable to the party against whom the motion is made, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for him." 6 Moore\'s Federal Practice, Sec. 59.08 (5) at 3814.

Professor Wright says:

"The evidence must be viewed in the light most favorable to the party against whom the motion is made, he must be given the benefit of all legitimate inferences which may be drawn in his favor from that evidence, and the motion must be denied if, so viewed, reasonable men might differ as to the conclusions of fact to be drawn." Wright Federal Courts, Sec. 95 at 370.

The appellant here, not challenging these principles, states in his brief that "The evidence must be construed in the light most favorable to the party against whom the motion is made," and "If reasonable men could differ as to the conclusions of fact to be drawn," the motion should be denied, but then says that, taking all of the evidence as to the historical events that occurred at the time of the unprovoked attack on the appellant by a fellow passenger on the appellee's bus, as testified to by the witnesses for the appellee, the story thus related demanded a finding by the jury that the Tamiami Trail Tours, Inc. and its driver had failed to discharge that exceptionally high degree of care owed by them to a passenger, and that the failure of the jury to find accordingly required the entry of a judgment notwithstanding the verdict by the trial court.

This case, although not presenting as extreme a situation as that depicted in the opinion of this court in Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326, 5th Cir., resembled the earlier case in many respects. It arose out of an unprovoked, vicious attack by a white man on a Negro passenger sitting in the forward part of a bus owned and operated by the appellee in the State of Georgia just at the period of time when the issue of public transportation desegregation was at its highest emotional pitch.1

It is without dispute that the bus company's version of the facts, wherever this version differs from that of the plaintiff below, must be accepted for the purpose of the motion for judgment notwithstanding verdict. We here outline the facts which the jury was warranted in believing in its consideration of the question whether Tamiami Trail Tours, Inc. breached its duty owed to the plaintiff.

The plaintiff, the Rev. Negil L. McPherson, was a Negro minister, a native and citizen of the Commonwealth of Jamaica, then residing in Springfield, Illinois. He had been in Georgia and in Tennessee for part of his stay of several years in the United States and was somewhat familiar with the problem of segregation as then practiced in the Southern states in this country.

When he first came to the attention of the defendant, Boutwell, the driver of the bus, which he sought to board on September 22, 1961, at the Trailways Station in Atlanta, he offered his ticket to board the bus after pushing ahead of other passengers, including some women. The bus operator delayed his boarding the bus until after five or six other passengers had been permitted to enter. At this time, the bus driver heard someone make statements such as, "I will take care of him", or "He should be taken care of," but he did not know or attempt to find out who made these remarks. McPherson boarded the bus and took either the third, fourth or fifth seat on the right-hand side of the bus. Shortly after this, the driver came onto the bus and, we here quote from the brief of the appellee: "Upon entering the bus, the driver noted there were several people seated in the first few seats of the bus, including the appellant who was seated on the right side in the third seat. The driver, while not necessarily expecting any trouble, remembered the complaining outside the bus; and, noting that the appellant was sitting in the midst of those passengers who had already entered the bus, recognized the possibility that the complaining person might well be on the bus, but he had no idea who it might have been. Recognizing it as a delicate situation, the bus driver in a normal voice suggested to the appellant that he move to the other side of the bus, one or two seats further back.2

McPherson refused to move and the driver went outside the bus to admit other persons, then later came into the bus again and asked McPherson again if he was going to take the other seat. The passenger declined to do so and asked the driver why he should move, to which the driver responded, "Well, I asked you to." As the driver walked back to the front of the bus again, McPherson asked him again why he should move and the driver said that he had "answered him the first time he asked me." Thereafter, McPherson asked him again why he should move and the bus driver said that after he had gotten back up to the front of the bus, "I finally told him for his own safety." Just before the bus started, one of two men who were sitting across the aisle one seat behind that occupied by appellant, tapped him on the shoulder and asked him, "Why don't you do as the man said?" Receiving no answer, he then said, "Where are you going?" McPherson did not answer this and the man said, "You may not reach where you are going." By this time the passengers had got on and the bus driver came in and the bus left the depot. McPherson did not tell the bus driver that the man had spoken to him. After the bus left the depot and got out on the highway toward Griffin, the white man, who in the meantime had asked the bus driver if he could get off the bus at any place and had received the reply that all he had to do was to pull the cord, moved over and sat down in the seat where McPherson was sitting. He said, "Why didn't you do as the bus driver and I told you?" McPherson said, "I am sitting here, I am not bothering anyone." And he also said, "In my country we sit wherever there is a vacant seat." To this the other replied, "You are not in your country now and I am going to kill you." He clenched his fist and began hitting McPherson in the head and on his face.3 McPherson called the bus driver and pulled the cord. The bus stopped. The bus driver was disturbed over the fact that a lady with a small child wished to get off and he stepped out on the ground and then came back in and saw the assailant strike McPherson one blow. In the meantime, a white passenger named Hicks, sitting at the rear of the bus, had come up and undertaken to separate the assailant and McPherson, but when the bus driver came down the aisle, the assailant spun him around and pushed him out the aisle and out of the bus. He then disappeared. Boutwell, the bus driver, made no inquiry of the injured man and made no effort to obtain the names of witnesses until after he had made his regular stop at Jonesboro and then moved on towards Griffin. Then he stopped on the open highway and obtained the names of some of the passengers. The bus proceeded to Griffin, at which point McPherson left the bus and went to the hospital in that city where he was treated for his injuries.

Of course, McPherson's testimony as to the occurrence differed somewhat from that which is outlined above. He testified that the bus driver initially had refused to take his ticket, although he had not crowded ahead of anyone. He also testified that the bus driver spoke to the two men sitting across the aisle from him, when one of them inquired as to whether he could get off at any point and thereafter said to McPherson, "I don't care who jumps you," when McPherson asked him why he should move. McPherson's testimony does not contain any statement that he heard the driver respond finally to the inquiry as to why he should move his seat by saying, "For your safety." There is no evidence that this remark when the driver was back at his seat in the front of the bus was heard by McPherson.4

Boutwell made no report either at Jonesboro or at Griffin to any police officers concerning the attack made on his passenger. He made no inquiry of McPherson as to his condition or whether his injuries were slight or serious. Upon leaving the bus at Griffin, McPherson said, "Thank you."5

Here there was no attempt by the appellant to question the right of the jury to pass upon the historical facts that occurred on the afternoon of September 22, 1961. We have, rather, the contention of appellant that taking the facts as testified to by the appellee and on its behalf, the trial court should have concluded, as a matter of law, that the bus company did not meet the standard of care which it owed to its passenger. If this proposition is established, it of course, falls within the purview of proper judicial review. As stated by this court in Cole v....

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  • Lopez v. Southern Cal. Rapid Transit Dist.
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    ...duty to its passengers includes a duty to protect them from assaults by fellow passengers. (See, e.g., McPherson v. Tamiami Trail Tours, Inc. (5th Cir.1967) 383 F.2d 527, 531 [applying Georgia law]; McCoy v. Chicago Transit Authority (1977), 69 Ill.2d 280, 13 Ill.Dec. 690, 692-693, 371 N.E.......
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    ...limits envisioned by Planters. See Fidelity & Casualty Co. of New York v. Funel, 5th Cir. 1967, 383 F.2d 42; McPherson v. Tamiami Trail Tours, Inc., 5th Cir. 1967, 383 F.2d 527; Huffstutler v. Hercules Powder Co., 5th Cir. 1962, 305 F.2d 292; Thomas v. Atlantic Coast Line Railroad Co., 5th ......
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