Penny v. Atlantic Coast Line R. Co.

• Decision Date: 26 October 1910
• Parties: PENNY v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

69 S.E. 238

153 N.C. 296

PENNY v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

October 26, 1910

Appeal from Superior Court, New Hanover County; Cooke, Judge.

Action by B. F. Penny against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

An instruction that a passenger injured by one fellow passenger attempting to shoot another was bound to exercise his senses for his own protection did not warrant refusal of an instruction that he could not recover if he left the car while the pistol was pointed toward the platform, and if the danger was as apparent to him as to the carrier.

The following issues were submitted:

"(1) Was the plaintiff injured by the negligence of the defendant? Ans. Yes.

"(2) Did the plaintiff by his own negligence contribute to his injury? Ans. No.

"(3) What damage, if any, has the plaintiff sustained? Ans. Five thousand dollars ($5,000).

"(4) Is the cause of action stated in the amendment to the complaint filed at April term, 1910, barred by the statute of limitation? Ans. No."

From the judgment rendered the defendant appealed.

Davis & Davis, J. D. Bellamy, and Geo. Rountree, for appellant.

A. J. Marshall, E. K. Bryan, and Bellamy & Bellamy, for appellee.

BROWN J.

We are of opinion that the complaint presents but one cause of action, and that is the allegation that the defendant, while the plaintiff was a passenger on its train and entitled to its protection, negligently failed to protect him while alighting at the end of the journey, in consequence of which the plaintiff was injured. The amended complaint sets out no cause of action and adds nothing to the original complaint. Therefore the fourth issue in regard to the statute of limitations is unnecessary.

There is evidence tending to prove that on September 18, 1898, plaintiff was a passenger on defendant's train from Wilmington to Leland, N. C., in the second-class car. A negro passenger, Sam Calloway, partly intoxicated, became very disorderly, and after much trouble was subdued by the conductor with the assistance of the porter, the baggage master, Van Amringe, and one La Motte, who was a passenger on this train, although in the employment of defendant, but not on duty. The conductor then undertook to search Calloway for arms, but found none. The disturbance had been entirely quieted before train reached Leland. Calloway jumped off train at Leland and while on the ground, seeing La Motte, asked him if he meant to cut him. La Motte replied: "I will cut your heart out," and then went in baggage car, and asked Van Amringe, the baggage master, for his pistol, which Van Amringe gave him. La Motte then went to the platform of the second-class car; the train being at full stop for passengers to get off. The negro Calloway was on the ground in a diagonal direction on the Leland side. La Motte snapped pistol three times at him, but it did not fire. Just about this time plaintiff passed over from the second-class car on the platform of first-class car, and down the steps of the car for the purpose of leaving the train. It was then that Calloway fired and the bullet took effect on plaintiff, injuring him.

It is contended by the plaintiff that the conductor was standing on the car platform, knew what was going on, and permitted plaintiff unwittingly without warning to step down on car steps in a highly dangerous position in consequence of which he was shot. This is plaintiff's only cause of action, and it is clearly stated in the complaint. The defendant denies the alleged negligence of the conductor, Carmon, and offers evidence tending to controvert plaintiff's contention. Defendant also contends that the plaintiff must have seen the disturbance, and carelessly and negligently, without necessity, exposed himself to obvious danger.

His honor instructed the jury that if the defendant, by the exercise of the "highest degree of care and human forethought," could have prevented La Motte from assaulting Calloway, and that this would have saved Penny from being injured, and defendant failed to do so, defendant would be liable, and to answer first issue, "Yes." This instruction is erroneous in two respects: (1) It assumes that the defendant is in any event liable for La Motte's acts. He was not on duty, but was a passenger on the train, and in the consideration of this case must be regarded as such. The conductor in charge of the train was not bound to foresee that La Motte would borrow a pistol and engage in a difficulty with Calloway after Calloway had left the train, and ceased to be a passenger. The conductor could not foresee that Calloway had a pistol with which injury might be inflicted on a passenger, since he had searched Calloway and found none. (2) While the carrier is not an insurer, its servants are required to exercise the highest degree of care in the transportation of as well as the protection of passengers from actual impending assaults of fellow passengers and intruders. For the latter purpose, it must use all available means at hand. But the carrier is not required to foresee and guard the passenger against all assaults, but only against such as from the circumstances may reasonably be expected to occur. The duty of the defendant is clearly stated in Britton's Case, 88 N.C. 536, 43 Am. Rep. 749, by Ruffin, Judge, as follows: "And while not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passenger against assaults from every quarter which might reasonably be expected to occur under the circumstances of the case and the condition of the parties." This view of the law is well sustained by authorities elsewhere. Pounder v. Railroad (1892) 1 Q. B. D. 383; Royston v. Railroad Co., 67 Miss. 376, 7 So. 320; Putman v. Railroad Co., 55 N.Y. 108, 14 Am. Rep. 190; Brooks v. Railroad Co., 168 Mass. 164, 168, 46 N.E. 566. The court further instructed the jury: "If the jury shall find by the greater weight of the evidence that a difficulty was pending between La Motte and Calloway, and Van Amringe, the baggage master on the train, with a knowledge of the purpose for which La Motte wanted it, handed him a pistol with which he could shoot Calloway, and that La Motte took the pistol out on the platform, and, pointing the same towards Calloway, tried to shoot him, but could not discharge the pistol, and this caused the said Calloway to fire the shots at La Motte, which struck the plaintiff, then the jury should answer the first issue 'Yes."'

It is contended that his honor neglected to give the correlative contention of the defendant, and that he should have told the jury that, if Van Amringe gave the pistol to La Motte without any knowledge of the purpose for which La Motte intended to use, then the defendant would not be liable on this ground. In Jarrett v. Trunk Co., 144 N.C. 299, 56 S.E. 937, it is held that, if the trial judge undertakes to apply the law to the facts and gives the contention of one side, it is his duty, without being requested, to give the correlative contention of the other side. But the instruction in our opinion is itself erroneous (1) because there is no evidence that Van Amringe knew or had reason to believe that La Motte borrowed the pistol for an unlawful purpose; (2) the act of Van Amringe in lending the pistol to La Motte was not the proximate cause of the injury to plaintiff, which was caused by a stray bullet fired from Calloway's pistol. The accidental wounding of plaintiff did not follow in direct sequence from the act of Van Amringe, assuming for the sake of argument that the latter was guilty of negligence in lending his pistol to La Motte. Ramsbottom v. Railway, 138 N.C. 39, 50 S.E. 448. In this case it is held by Mr. Justice Hoke that the proximate course of an injury is one that produces the result in continuous sequence, without which it would not occur and which a man of ordinary prudence could reasonably be expected to foresee. There is in legal parlance no direct causal connection between the act of Van Amringe in loaning the pistol and the unforeseen accidental injury to plaintiff by Calloway. Harton v. Telegraph Co., 146 N.C. 429, 59 S.E. 1022, 14 L. R. A. (N. S.) 956; McGee v. Railroad Co., 147 N.C. 142, 60 S.E. 912, 24 L. R. A. (N. S.) 119; Bowers v. Railroad Co., 144 N.C. 684, 57 S.E. 453, 12 L. R. A. (N. S.) 446; 1 Street's Foundations, 120. To constitute liability, there must not only be a breach of duty owing by the defendant to the plaintiff and injury to the latter, but the breach of duty must be the cause, and the proximate cause, of the inquiry. So far as the act of Van Amringe is concerned, it is a case of post hoc, but not "ergo propter hoc," as was said by Manning, J., in Hudson v. McArthur, 152 N.C. 452, 67 S.E. 998.

In McDowall v. Great W. R. R. Co. (1903) 2 K. B. 331 on page 337, Vaughan Williams, L. J., says: "In those cases in which a part of the cause of action was an interference of a stranger or a third person, the defendants are not held responsible unless it is found that that which they do, or omitted to do--the negligence to perform a particular duty-- is itself the effective cause of the accident." That case is instructive upon this point. It was there held that the servants of the defendant had been guilty of negligence in not properly placing the railway van, but that, it having been interfered with by trespassers, the negligence of the defendant's servants was not the effective cause of the accident, and the defendant was exonerated. In Burt v. Advertising Newspaper Co., 154 Mass. 238, 28 N.E. 1, 13 L. R. A. 97, Mr. Justice Holmes uses this language: "Wrongful acts of independent...