Savannah Electric Co v. Mccants

• Decision Date: 22 May 1908
• Citation: 61 S.E. 713,130 Ga. 741
• Parties: SAVANNAH ELECTRIC CO. v. McCANTS.
• Court: Georgia Supreme Court

130 Ga. 741

61 S.E. 713

SAVANNAH ELECTRIC CO.

v.McCANTS.

Supreme Court of Georgia.

May 22, 1908.

1. Carriers — Carriage or Passengers — Questions for Jury.

The court did not err in overruling a general demurrer to the petition, it appearing that the petitioner's cause of action arose from an assault upon him by the conductor and motor-man of the defendant company's street car, upon which he was a passenger, made under such circumstances that the jury would be authorized to find, should the allegations in the petition be supported by evidence, that the assault, though it occurred in the street, was a continuation of an altercation that took place while he was a passenger on the car, and that, upon leaving the car, he was immediately pursued by the conductor and motorman, who assailed him and inflicted upon him severe personal injuries.

2. Pleading—Conclusion of Pleader.

An averment that the assault alleged in the declaration "was done in the prosecution of the company's business, and said conductor and motorman were acting within the scope of said company's authority, " was not open to the criticism, made by special demurrer, that such allegations "are mere conclusions of the pleader, state no facts, are not supported by any allegations of fact." Such an allegation as that demurred to was traversable. It contained a statement of facts which had been amplified by the previous recital of facts and circumstances involved in the case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 12-28 1/2.]

(Syllabus by the Court.)

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by T. R. McCants against the Savannah Electric Company. Judgment for plaintiff, and defendant brings error. Affirmed.

McCants sued the Savannah Electric Company for damages on account of personal injuries received at the hands of the company's employés. The petition alleged that the plaintiff boarded one of the cars of the defendant for the purpose of being transported to the nearest point on the railroad lineto his home. He paid his fare, requesting the conductor to put him off at Duffy street. The conductor failed to do so. He then requested the conductor to stop the car, and put him off at Gordon street. This request the conductor also willfully disregarded, carrying him beyond this point. Then, for the third time, he requested the conductor to put him off at Charlton street. The conductor did not do this, but passed Charlton Street, stopping his car, after passing Charlton street, on the square between Charlton and Macon streets; and the plaintiff was allowed to leave the car at that time. But, before reaching Charlton Street, it being manifest that the car would not stop, the plaintiff again requested the conductor to put him off, saying: "I have asked you several times to put me off at Duffy and Gordon streets, and you refused, now please put me off at Charlton and Macon streets, " and, as the plaintiff was about to leave the ear, the conductor said to him, "Don't be so damned impertinent." The plaintiff replied: "I didn't come here for that purpose. Please let me off." After getting off the car where it was then stopped, the plaintiff started to walk back, in order to go home, and had gone but a short distance, when, being attracted by footsteps running swiftly behind him, he turned, saw that the car was stationary, and also saw the conductor and motorman, accompanied by a third party unknown to him, running behind him; and they then and there made violent and unprovoked assault upon him, inflicting injuries described. At least two of the persons assaulting him were the employés of the defendant company, and they assaulted him without provocation; one of the employés beating him over the head with the controller of the car, the other employé beating him violently by using an iron switch bar. By amendment it was alleged that the assault "was done in the prosecution of the company's business, and said conductor and motorman were acting within the scope of said company's authority." The defendant demurred to the petition, on the ground that it set forth no cause of action, and demurred specially to the amendment, on the ground that it stated mere conclusions of the pleader, and no facts, and was not supported by any allegation of fact. The demurrers were overruled, and the defendant excepted.

Osborne & Lawrence, for plaintiff in error.

Twiggs & Oliver and Gazan & Oliver, for defendant in error.

BECK, J. (after stating the facts as above). 1. While we do not agree with the learned judge who tried this case in the court below in all of the reasoning by which he reached the conclusion that the general demurrer to the plaintiff's petition should be overruled, we fully agree with him in the conclusion reached. If the passenger alleged to have been assaulted by the employés of the de fendant had safely alighted from the car upon which he had been traveling and had reached the street, nothing more appearing, and the continuity of the relation of carrier and passenger had been completely broken, even for a short time, nothing more appearing, the contention of counsel for the plaintiff in error that the acts upon the part of the company's servants were entirely without the scope of their employment and duties, and were therefore acts for which, even though tortious in themselves, the company was not liable, might have been sound. It is not universally true, however, that simply because a passenger has performed the physical act of alighting from the car and passing from the immediate premises of the company he loses the right to protection from the insult and injury at the hands of he carrier's servants which exists by virtue of the relation of passenger and carrier. The general rule is stated as follows: "The relation of passenger and carrier does not ordinarily terminate until the passenger has alighted * * * and left the place where passengers are discharged." 4 Elliott on Railroads, § 1592. A similar rule is stated in the case of Brunswick & Western R. Co. v. Moore, 101 Ga. 684, 28 S. E. 1000, where it is...