Calder v. Southern Ry. , 89 S.C. 287 ( 1911 )

July 12, 1911. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendants.

The following statement appears in the record:

"This action was commenced on the fifteenth day of May, 1909, by the service of the summons and complaint. Within due time counsel for the defendant, The Pullman Company, filed a petition and bond, for the removal of the case, into the United States Circuit Court.

"Plaintiff moved upon a transcript of the record, in the United States Circuit Court, for an order remanding the case to the State Court. The case was remanded by an order of Judge Brawley, U.S. Judge, made on the 16th day of July, 1909. On October 13, 1910, upon the call of the case for trial in the State Court, counsel for the defendant, The Pullman Company, presented the petition and bond for removal, and asked for an order of removal, pursuant to notice given. After argument, the presiding Judge refused the motion. The case then came on for trial, before the Honorable R.C. Watts, presiding Judge, and a jury on October 13, 1910. After the complaint was read, defendants then read and argued the demurrer thereto, dated and served on the 7th day of April, 1910. The demurrer was overruled. At the close of plaintiff's testimony motions for nonsuit, were made by the defendants. After argument an order of nonsuit was passed as to the defendants, Southern Railway and Southern Railway — Carolina Division, but the Court refused the motion for nonsuit as to the defendant, The Pullman Company. The case went to the jury upon the charge of the Judge, and the jury returned a verdict for the plaintiff, for $7,500 on the 15th day of October, 1910. A motion for a new trial was duly made and refused." The defendant appealed upon exceptions, which will be reported.

The allegations of the complaint, material to the questions involved, are as follows:

"That heretofore on the 6th day of July, A.D. 1908, the plaintiff above named, procured transportation from Charleston, S.C. to Marietta, Ga., over the line of defendants' road and connecting carriers; that she purchased from The Pullman Company, in addition to her railroad transportation, a ticket which entitled her to a berth, on one of the sleeping cars of The Pullman Company, from Charleston, S.C. to Atlanta, Ga., scheduled to leave Charleston, S.C. at 11 o'clock p. m.

"That the plaintiff above named, boarded a Pullman car attached to one of the trains of the defendants, and upon entering said Pullman car, retired for the night to her berth; that plaintiff alleges, that when said train reached a point on the line of the defendant's road, at or near Dorchester, a station situated in the county of Dorchester, in said State, on the line of the South Carolina and Georgia Railroad Company, one of the constituent roads above mentioned, she was assaulted by a man in her berth, that he rudely put his hands upon her arms and body, and that he forcibly took her satchel, which she had with her in her berth, together with the contents thereof, and that the same has never been recovered by the plaintiff.

"That at the time said assault was made upon the plaintiff in her berth, she was asleep and was awakened by such assault; that she called loudly for help, but that no response came to her calls, from the officers or agents of the defendants, in charge of said sleeping car, and that the person so assaulting her escaped with her satchel.

"That the defendants above named, were jointly and concurrently negligent, in not keeping a watch over the sleeping passengers in said sleeping car, in that, the conductor and porter of said sleeping car retired for the night, and went to sleep and were in no condition or position, to discover any person attempting to commit robbery in said car, and that the defendants were jointly and concurrently negligent, in allowing the doors of said car to remain open, so that persons from the outside, might have access and entrance thereto; and that the defendants by and through its servants and agents, and by and through their joint and concurrent acts, negligently, wilfully, and wantonly failed to keep a watch, so as to prevent persons from entering said car from the outside, and to prevent persons within said car from molesting the plaintiff, and depriving her of her property, and committing an assault and insult upon her person. That plaintiff alleges and charges, that it was the duty of the defendants, to keep a reasonable watch over the sleeping passengers in said car; and plaintiff further alleges and charges, that the defendants failed in their duty in this respect, in the manner as above set forth."

The Pullman Company denied all, except the formal allegations of the complaint.

We proceed to the consideration of the exceptions, though not in their regular order.

Second Exception: It was the duty of the railroad company, when it accepted the plaintiff as a passenger, to exercise the utmost care and precaution for her safety, until she arrived at her destination. The fact that she, also, became a passenger on the Pullman car, and was asleep in her berth, at the time of the alleged robbery, and technical assault and battery upon her incident to the robbery, did not relieve the railroad company of its responsibility, in this respect. The rule is thus stated in PennsylvaniaCo. v. Roy, 102 U.S. 141: "The law will conclusively presume, that the conductor and porter, assigned by The Pullman Palace Car Company, to the control of the interior arrangements of the sleeping car, in which Roy was riding when injured, exercised such control, with the assent of the railroad company. For the purposes of the contract, under which the railroad company undertook to carry Roy over its line, and in view of its obligation to use only cars, that were adequate for safe conveyance, the sleeping car company, its conductor and porter, were by law, the servants and employees, of the railroad company. Their negligence or the negligence of either of them, as to any matters involving the safety or security of passengers, while being conveyed, was the negligence of the railroad company. The law will not permit a railroad company, engaged in the business of carrying persons for hire, through any device or arrangement with a sleeping car company, whose cars are used by, and constitute a part of the train, of the railroad company, to throw off the duty of providing proper means, for the safe conveyance of those, whom it has agreed to convey."

This principle is recognized, in the case of Taber v. Ry.,81 S.C. 317, 62 S.E. 311, wherein the Court uses this language: "The delict, if any, was a breach of duty by The Pullman Company, since it appertained peculiarly to the contract of that company, to furnish berth accommodations, as distinguished from the defendant's contract, of safe and comfortable transportation."

Not only the assault and battery, but likewise the robbery (which is an offense against the person, as well as against property), endangered the safety of the plaintiff, and rendered both the railroad company and the sleeping car company, liable for such damages as she may have sustained, by the alleged failure of The Pullman Company, to discharge its duty, in properly protecting her person from such dangers, during her hours of slumber.

Therefore, it cannot be successfully contended that the joint liability alleged in the complaint, was sham and pretensive.

Third Exception: It is only necessary, to cite the case ofReed v. Ry., 75 S.C. 162, 55 S.E. 218, to show that this exception cannot be sustained. In that case it was held, that the Southern Railway Company — Carolina Division, was liable, even to an employee of the Southern Railway Company, its lessee, for negligence and wantonness on the part of the Southern Railway Company, causing injury to such employee.

Fourth Exception: Conceding the proposition to be sound, that "a railroad company is not responsible, for the loss of hand baggage of a passenger in a sleeping car, lost by the alleged negligence of the employees of the sleeping car company, in not keeping watch," nevertheless this exception cannot be sustained, if the allegations of the complaint, are sufficient to constitute a cause of action, based upon the alleged assault and battery; and whether they are sufficient for that purpose will be determined, when we come to the consideration of the next exception.

Fifth Exception: The duty imposed upon the sleeping car company (which likewise rests upon the railroad company, in so far as the safety of the passenger may be involved) is thus defined in the case of Carpenter v. Ry., 11 L.R.A. (N.Y.) 762:

"A corporation engaged in running sleeping coaches, with sections separated from the aisle only by curtains, is bound to have an employee, charged with the duty of carefully and continually watching the interior of the car, while berths are occupied by sleepers. Pullman Car Co. v. Gardner, 3 Penny., p. 78. These cars are used by both sexes, of all ages, by the experienced and the inexperienced, by the honest and the dishonest, which is understood by the carriers; and though such companies are not insurers, they must exercise vigilance, to protect their sleeping customers from robbery. A traveler who pays for a berth is invited and has the right to sleep, and both parties to the contract know, that he is to become powerless to defend his property from thieves, or his person from insult, and the company is bound to use a degree of care, commensurate with the danger to which passengers are exposed. Considering the compensation received for such services, and the hazards to which unguarded and sleeping travelers are exposed, the rule of diligence above declared is not too onerous."

The appellant relies upon the doctrine thus stated in 1 Fetter on Carriers of Passengers: "Carriers of passengers, are not insurers of the entire immunity of their passengers, from the misconduct of fellow passengers or of strangers, any more than they are insurers of the absolute safety of passengers, in other respects. Nor can the carrier be held liable for such misconduct, on the principle of respondentsuperior, as in the case of the misconduct of his servants. But although the doctrine is of comparatively recent growth, it is now firmly established, that a carrier of passengers must exercise the same high degree of care, to protect them from the wrongful acts of their fellow passengers, or of strangers, that is required for the prevention of casualties, in the management and operation of its train, namely, the utmost care, vigilance and precaution, consistent with the mode of conveyance, and with its practical operation. While not required to furnish a police force, sufficient to overcome all force, when unexpectedly and suddenly offered, it is the carrier's duty to provide 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; and, having furnished such force, the carrier is chargeable with their neglect, in failing to protect a passenger from assaults of strangers. This strict rule of duty must, however, be applied in view of the relation which the carrier sustains to all the passengers, and the circumstances of each particular case calling for its exercise. Knowledge of the existence of the danger, or of facts and circumstances, from which the danger may be reasonably anticipated, is necessary to fix a liability upon the carrier, for damages sustained, in consequence of failure to guard against it."

This language is quoted with approval in Franklin v. Ry.,74 S.C. 332, 54 S.E. 578, and the principle is recognized in the subsequent cases of Anderson v. Ry., 77 S.C. 434,58 S.E. 149; Taylor v. Ry., 78 S.C. 552, 59 S.E. 641, andNorris v. Ry., 84 S.C. 15, 65 S.E. 956. The defendant also relies upon the case of Connell's Ex'ors v. Ry., 24 S.E. R. (Va.) 467. In that case the Court uses this language: "Robbery is of frequent occurrence, and larceny more so, and to invite a passenger to enter a sleeping car with his property, and to go to sleep in the confidence, that his person and property will be shielded and protected by those, who have undertaken that duty, imposes a very high degree of care and watchfulness, upon the sleeping car company. Passengers are invited to enter and to sleep. They are thereby disarmed and incapacitated for self-protection. Carriers are paid to preserve, watch and ward over their sleeping guests, and they are rightfully held, to a due and faithful discharge of the obligations thus assumed. Experience teaches us that when property is exposed to theft, it is apt to be stolen; but murder is of infrequent occurrence.

"When, therefore, a sleeping car company receives a passenger, and he retires to rest, it may well be assumed to anticipate, and be required to protect him against a crime, which is likely to occur, whenever the temptation and the opportunity are presented. It cannot be deemed to have anticipated, nor be expected to guard and protect him against a crime, so horrid and happily so rare, as that of murder."

The rule that the duty of the carrier to a passenger, from the wrongful acts of a fellow passenger or stranger, only applies when the carrier has knowledge of the existence of the danger, or of facts and circumstances from which the danger may be reasonably anticipated, is not applicable to passengers asleep in their berths. The principle announced in Franklin v. Ry., 74 S.C. 332, 54 S.E. 578, and the subsequent cases was applied, where the facts were quite different from those in the present case, and in none of them, were the rights of a sleeping passenger involved. In the case of passengers, other than those in sleeping cars, it may reasonably be expected, that they will be able to give notice of the necessity for protection, but knowledge of the fact, that a passenger is asleep in his berth, is, in itself, notice of the necessity for taking proper precautions to safeguard him, as, at that time, he may be presumed to be powerless, to give notice of threatened danger.

In the present case the testimony shows, that The Pullman Company recognized the necessity for guarding the safety of the passengers, even before receiving notice of danger, or of facts from which danger might reasonably be anticipated. by requiring either the conductor or the porter to be on duty, during the entire time the passengers are asleep, for the purpose of giving them protection generally, without reference to any particular danger to a passenger. Therefore it is evidence of negligence for the sleeping car company, to fail to keep a proper watch, even before it has other notice of the danger, or of such facts as are sufficient to cause it to anticipate danger, to a particular passenger.

In regard to the case of Connells Ex'ors v. Ry., 24 S.E. R. (Va.) 467, we would say, that in so far as it announces the principle, that robbery is a danger to the safety of the passenger, which a sleeping car company should guard against, states the principle correctly. But if it is to be construed as ruling, that a sleeping car company cannot be held liable for damages, when a passenger is murdered by a stranger, although both the conductor and porter went to sleep, leaving the passengers unprotected, on the ground that murder was a danger not reasonably to be anticipated, then such a rule is not to be followed. We, however, do not think the Court intended to go to that extent, as it did not appear in that case, that the sleeping car company had failed to keep a general watch, over the passengers. Therefore, that case cannot be regarded as authority for the proposition, that it is not the duty of a sleeping car company, to take proper care to keep a watch over its passengers, even before it has notice of danger, or of circumstances sufficient to put it on inquiry, which if pursued with due diligence, would lead to knowledge of the danger.

Sixth Exception: There was testimony tending to sustain the allegations of the complaint, as to the failure of the servants of The Pullman Company, to keep a watch while the plaintiff was asleep in her berth, and the said allegations, show a reckless disregard of the plaintiff's safety, and that there was a conscious failure, on the part of The Pullman Company's servants, to discharge their duty. It cannot therefore, be successfully contended, that the testimony did not show that the plaintiff, was entitled to compensatory as well as punitive damages.

Seventh and Eighth Exceptions: These exceptions cannot be sustained, for the reason, that the charge conformed to the rule announced, in the cases of Pickens v. Ry., 54 S.C. 498,32 S.E. 567; Myers v. Ry., 64 S.C. 514, 42 S.E. 598, andSullivan v. Ry., 74 S.C. 377, 54 S.E. 586.

Tenth Exception: His Honor, the presiding Judge, charged the following request, which was presented by the appellant's attorneys, "The law in this State, does not allow recovery of damages, for mental suffering, in the absence of bodily injury, in a case of this kind, and I charge you, that if you believe from a preponderance of the testimony, that plaintiff received no bodily injury, then no damages for mental suffering are allowed." There are other portions of the charge to the same effect. This clearly shows that the exception cannot be sustained.

Sixteenth Exception: C.C. Freat, a witness for the appellant, thus testified, on cross-examination:

"As you say, you are superintendent of this district? Charleston district and the territory adjacent to Charleston. How many districts had The Pullman Company in the United States? I am not sure, offhand, I suppose twenty-five or thirty. It takes in the whole territory of the United States? Yes, sir; practically so. They run Pullman cars throughout the whole United States? Yes, sir."

The reasonable inference from this testimony is, that The Pullman Company, is an exceedingly wealthy corporation.

"In cases involving the doctrine of punitive damages, it is very generally held, that evidence of the defendant's wealth and pecuniary ability, is admissible. The reason of the rule, admitting evidence of the defendant's wealth and pecuniary ability, rests in the consideration that a pecuniary mulct, which would operate as a sufficient punishment, to a man of small means, would be inadequate in the case of a person of great wealth, and what would be a proper penalty in the latter case, would be excessive and immoderate in the former. The rule admitting such evidence is indeed, it has been said, a fair corallary of the rule of exemplary damages." 12 Enc. of Law 47; Rowe v. Moses, 9 Rich, 423;Burckhalter v. Coward, 16 S.C. 435; Harris v. Marco,16 S.C. 575; Duckett v. Pool, 34 S.C. 311, 13 S.E. 542.

The appellant has failed to satisfy this Court, that the verdict was the result of prejudice or caprice.

This exception cannot therefore be sustained.

The exceptions which have not been considered specifically, have either been disposed of, by what was said in considering the other exceptions, or are too general.

Judgment affirmed.