Floyd v. Cleveland , 99 Ohio App. 282 ( 1955 )

Plaintiff, while riding on a trackless trolley bus of the defendant, was requested by the operator to restrain an epileptic during a seizure so as to avoid injury to the other passengers on the bus.

Plaintiff's assailant entered the bus and, after a brief conversation with the operator, fell to the floor in an epileptic attack. The plaintiff responded to the request of the operator after attempts to revive the man were unsuccessful and went to help the man, who was lying on the floor.

While the plaintiff was ministering to the epileptic, the bus driver said, "Well, I believe I'll call the ambulance," and then departed from the bus.

In the absence of the operator, the man who had collapsed regained consciousness, rose to his feet and asked the plaintiff, "What in hell are you doing to me?" and then struck the plaintiff a powerful blow in the face, breaking his nose; then he jumped from the bus and ran up the street. The testimony indicates clearly that the plaintiff's assailant was just another passenger on the bus.

This is not an action for the tort of a passenger upon the plaintiff, but is an action in negligence against the carrier for its failure to exercise the highest degree of care for the protection of the plaintiff consistent with the practical operation of the bus.

In 10 American Jurisprudence, 256, Section 1439, we find the following:

"A carrier is liable for injuries inflicted upon one of its passengers through the negligence or wilfulness of a fellow passenger or a stranger when, by the exercise of proper care on its part, the act of violence might have been foreseen and prevented. In general, a common carrier is held to a high degree of care and vigilence to protect its passengers from the acts of fellow passengers or strangers, and it is liable for any injuries sustained as a result of its negligence in this respect. The employees of a carrier are regarded as invested with all the powers of a police officer for the purpose of protecting passengers from assault by fellow passengers or strangers. The duty of a carrier to protect passengers from acts of fellow passengers, as well as the extent of its liability for failure to adequately discharge this duty, is considerably less in England than in the United States."

At page 259, Section 1441, we find the following:

"A carrier is liable for acts of misconduct or improper conduct on the part of its passengers or strangers resulting in injury to a fellow passenger only in the event that the employees of the carrier knew or, in the exercise of due care, should have known of the imminency of the tort and failed to prevent its occurrence after a sufficient opportunity to do so. It is not essential that the employee of the carrier possess actual knowledge to the effect that improper conduct is about to take place if, with the exercise of proper care, he could have learned of circumstances indicating the probability of the tortious conduct or behavior."

And at page 273, Section 1466, we find the following:

"A common carrier is not liable for an assault by a stranger on a passenger if it could not have anticipated and prevented the assault by the exercise of the proper degree of care and prudence. A carrier will be held liable, however, for an assault on a passenger by a stranger, if it could have been anticipated and prevented by the exercise of reasonable care and diligence."

Did the bus driver know from all the circumstances that injury to this plaintiff passenger was threatened or impending? Should he have anticipated the assault? The epileptic had fallen and was lying prostrate on the floor of the bus. The operator called upon the plaintiff to assist him in the emergency. Did the operator leave the plaintiff in a known perilous condition? He said, "I'll call the ambulance." He left no one in charge of the bus except the plaintiff.

In the exercise of proper care on the part of the operator of the bus, should this assault not have been foreseen and prevented?

The operator was invested with all the powers of a police officer for the purpose of protecting passengers on his bus, and for the purpose of protecting passengers from assault by fellow passengers or strangers.

In the case of Paal v. Cleveland Ry. Co., 11 Ohio App. 462, the first paragraph of the syllabus is as follows:

"The liability of a carrier for injuries inflicted upon a passenger by reason of an unprovoked assault by a fellow passenger, depends upon the presence or absence of evidence showing that the employee of the carrier knew, or by the exercise of due care should have known, from all the facts and circumstances, that injury to the passenger was threatened or impending; and in the absence of such evidence, it is not error for a trial court to enter nonsuit for the carrier at the conclusion of plaintiff's evidence."

In the opinion, on pages 464 and 465, we find the following:

"The rule governing such a situation seems to be that a carrier of passengers for hire is liable or not liable for an injury inflicted upon a passenger by reason of a third person making an unprovoked assault upon him dependent upon the presence or absence of evidence showing that the employees of the carrier knew, or by the exercise of due care should have known from all facts and circumstances in the case, that injury to the passenger was threatened or impending. The facts and circumstances of the case must disclose a situation such that the employees in the exercise of the highest degree of care should have anticipated the impending assault."

The trial court found for the plaintiff, and we cannot say that the conclusion of the court is manifestly against the weight of the evidence. For this reason, the judgment is affirmed.

Judgment affirmed.

DOYLE, P. J., and HUNSICKER, J., concur.

GRIFFITH, J., of the Seventh Appellate District, and DOYLE and HUNSICKER, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.