Western & A.R. Co. v. Jackson
| Decision Date | 27 September 1917 |
| Docket Number | 8101. |
| Citation | 93 S.E. 547,21 Ga.App. 50 |
| Parties | WESTERN & A. R. CO. v. JACKSON. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a female passenger about 60 years old was carried by a railroad train past a flag station which was her destination, through the negligence of the conductor in charge of the train, in failing to stop the train at that place, and the conductor when the train stopped at the next station, said to her that he would have a conveyance to take her from there to her home, and she then left the train, and he requested a telegraph operator of the railroad company at that station to hire a conveyance and send her to her home, and the telegraph operator engaged a young man about 21 years old to convey her in a buggy to her home, about 2 miles distant, and on the way the driver made improper proposals to her, the driver could not be held to be an agent of the railroad company, in the absence of any evidence that would authorize the jury to find that either the conductor or the telegraph operator was specially authorized to employ a subagent, or was acting within the scope of his authority in engaging the driver; nor was the injury to the feelings of the person insulted by the driver a proximate result of the breach of the railroad company's contract of carriage.
Even if it be conceded that both the conductor and the telegraph operator were charged generally with the duty of providing for the safety of the passenger at the station, and that therefore the carrier would be responsible if there was negligence on their part in intrusting her to a drunken or dissolute man, there was no evidence to support the inference that, when the driver was engaged to transport her to her home, either the telegraph operator or the conductor knew anything whatever derogatory to his character or habits; but on the contrary, the undisputed evidence showed that the employé who engaged his services knew him to be a man of previously unblemished reputation, and had no reason even to suspect that he was a drinking man, or had been recently imbibing intoxicants, or to anticipate (in the light of his reputation and apparent condition) that he would be capable of insulting an elderly woman intrusted to his care. Therefore no recovery against the railroad company on this theory was authorized.
While a recovery of nominal damages would have been proper under the evidence, the verdict for $1,000 was unauthorized; and the trial judge erred in overruling the motion for a new trial.
Error from Superior Court, Bartow County; A. W. Fite, Judge.
Action by M. C. Jackson against the Western & Atlantic Railroad Company. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. Reversed.
Carrier taking female passenger past her station, and whose conductor and operator engaged driver to take her home, were not liable for his improper proposals, where neither conductor nor operator had reason to suspect his unfitness for such employment.
Mrs Malinda Jackson sued the Western & Atlantic Railroad Company, alleging that on September 5, 1914, she boarded its passenger train at a point called Atco, in the county of Bartow, and informed the conductor in charge of the train that she wished to leave the train at Cave, another station, and paid the fare to that point; that the train did not stop at Cave, but, without slackening its speed, ran by that station to Kingston, in the same county, and about 2 miles beyond her destination; that after passing Cave she did not see the conductor until just before the train reached Kingston, when she reminded him that she had been carried beyond her destination, whereupon the conductor told her he had forgotten "that she was to get off at Cave, and assured her that he would procure a conveyance at Kingston for her return to Cave." She further alleged:
"That on his arrival in Kingston said conductor instructed the employés of the defendant company at that place to procure a conveyance for petitioner and to send her back to Cave; that said employés (petitioner does not know their names) did procure a horse and buggy, with Moses Darden as driver, and that one of said employés placed her in said buggy with said Darden;" that it was 7:30 o'clock p. m., and was dark, when she arrived at Kingston; that soon after she left Kingston in the buggy with Darden she noticed that he was drunk, and on the road between Kingston and Cave he made indecent proposals and repeated requests that she have sexual intercourse with him; that on account of his indecent language and proposals she became greatly frightened, and begged him to permit her to alight from the buggy in the night and proceed to Cave on foot, but he refused to allow her to alight, and she finally reached her destination, not earlier than 8 o'clock.
She alleged that the defendant was negligent:
"(a) In failing to stop said train at Cave, and allowing petitioner sufficient time to alight therefrom; (b) in carrying petitioner beyond Cave, her destination; (c) in procuring an incompetent, drunken servant to carry her from Kingston to Cave; (d) in making, through said Darden, indecent proposals to petitioner, grossly and wantonly insulting her and humiliating her--all to the injury and damage of petitioner in the sum of ten thousand ($10,000) dollars aforesaid."
She prayed for a judgment for that amount.
The defendant demurred to the last clause of paragraph 5 of the plaintiff's petition, setting forth that the conductor "assured her [the plaintiff] that he would procure a conveyance at Kingston for her return to Cave," and to those paragraphs of the petition setting forth the conduct of the conductor and the other employés of the defendant company and the insulting conduct of Darden on the road from Kingston to Cave, and also to subdivisions (c) and (d) above quoted, assigning negligence in that the defendant had procured an incompetent and drunken servant to carry her from Kingston to Cave, and in making through him indecent proposals, and for cause of demurrer the defendant insisted that the averments of these paragraphs and parts of paragraphs "showed no cause of action against the defendant," for various reasons thereinafter set forth in subdivisions (a), (b), (c), and (f) of the demurrer, including the contentions that neither the conductor nor the unnamed employé appeared, from the allegations in the petition, to have had any authority to engage Darden or to have acted within the scope of his authority in engaging him, and that Darden's conduct was not a proximate result of the negligence of the defendant in carrying the plaintiff beyond her stopping place. The plaintiff amended by striking from the petition subsections (c) and (d), referred to in the demurrer and quoted above, and thereupon the defendant renewed its demurrer to the last clause of paragraph 5 and to the other paragraphs objected to, and further insisted that, in view of the withdrawal of the said subsections (c) and (d), alleging negligence upon the grounds therein mentioned, the plaintiff thereby abandoned the allegations in said paragraphs as to the conduct of the employés of the defendant in engaging Darden to convey her to Cave, and as to the conduct of Darden while on the way from Kingston to Cave, and therefore the said allegations were irrelevant and immaterial, and were not shown to be any part of the cause of action against the defendant, and should for this reason be stricken. The demurrer and the amended demurrer were overruled, and the defendant thereupon filed exceptions pendente lite. The case proceeded to trial, and the allegations made in the petition were supported by the testimony of the plaintiff, and the trial resulted in a verdict for $1,000 in her favor.
She further testified:
That she had never before seen the man that was driving the buggy, and did not know his name.
She testified that on the way to her home the defendant made improper proposals to her, indicating that he wished to have sexual intercourse with her, and she tried to get out of the buggy; but he prevented her from doing so, and when they reached her home she went into the house, and Darden remained outside in the buggy, talking to her husband and her son-in-law, until she came out of the house and told them to stop talking to him and come in the house, and thereupon "Darden left in a hurry." She testified that she would soon be 61 years of age, and was the mother of 13 children, 11 of whom were living; the eldest being 43 years of age. Her husband testified:
That his wife came home in a buggy with Darden; that she got out of the buggy and went into the house; that Darden then spoke to him, and inquired if he was Mr. Jackson, and, upon his answering "Yes," said he wanted to see him for a minute; that he went out where Darden was, and as soon as he came to the...
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