Reverend Negil L. McPherson v. Tamiami Trail Tours, Inc. And Ned C. Boutwell

TUTTLE, Chief Judge:

This is an appeal from a denial of motions for directed verdict and for judgment notwithstanding the verdict or, in the alternative, for a new trial in a civil action for damages brought in the District Court for the Northern District of Georgia.

As the appellant recognizes, he has a heavy burden to carry when seeking to have an issue of negligence withdrawn from the jury in the Federal Court.

“In ruling on the motion for directed verdict or for judgment now, it is the duty of the trial court to take that view of the evidence most favorable to the party against whom the motion is made, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for him.” 6 Moore’s Federal Practice, Sec. 59.08 (5) at 3814.

Professor Wright says:

“The evidence must be viewed in the light most favorable to the party against whom the motion is made, he must be given the benefit of all legitimate inferences which may be drawn in his favor from that evidence, and the motion must be denied if, so viewed, reasonable men might differ as to the conclusions of fact to be drawn.” Wright Federal Courts, Sec. 95 at 370.

The appellant here, not challenging these principles, states in his brief that “The evidence must be construed in the light most favorable to the party against whom the motion is made,” and “If reasonable men could differ as to the conclusions of fact to be drawn,” the motion should be denied, but then says that, taking all of the evidence as to the historical events that occurred at the time of the unprovoked attack on the appellant by a fellow passenger on the appellee’s bus, as testified to by the witnesses for the appellee, the story thus related demanded a finding by the jury that the Tamiami Trail Tours, Inc. and its driver had failed to discharge that exceptionally high degree of care owed by them to a passenger, and that the failure of the jury to find accordingly required the entry of a judgment notwithstanding the verdict by the trial court.

This case, although not presenting as extreme a situation as that depicted in the opinion of this court in Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326, 5th Cir., resembled the earlier case in many respects. It arose out of an unprovoked, vicious attack by a white man on a Negro passenger sitting in the forward part of a bus owned and operated by the appellee in the State of Georgia just at the period of time when the issue of public transportation desegregation was at its highest emotional pitch.¹

It is without dispute that the bus company’s version of the facts, wherever this version differs from that of the plaintiff below, must be accepted for the purpose of the motion for judgment notwithstanding verdict. We here outline the facts which the jury was warranted in believing in its consideration of the question whether Tamiami Trail Tours, Inc. breached its duty owed to the plaintiff.

The plaintiff, the Rev. Negil L. McPherson, was a Negro minister, a native and citizen of the Commonwealth of Jamaica, then residing in Springfield, Illinois. He had been in Georgia and in Tennessee for part of his stay of several years in the United States and was somewhat familiar with the problem of segregation as then practiced in the Southern states in this country.

When he first came to the attention of the defendant, Boutwell, the driver of the bus, which he sought to board on September 22, 1961, at the Trailways Station in Atlanta, he offered his ticket to board the bus after pushing ahead of other passengers, including some women. The bus operator delayed his boarding the bus until after five or six other passengers had been permitted to enter. At this time, the bus driver heard someone make statements such as, “I will take care of him”, or “He should be taken care of,” but he did not know or attempt to find out who made these remarks. McPherson boarded the bus and took either the third, fourth or fifth seat on the right-hand side of the bus. Shortly after this, the driver came onto the bus and, we here quote from the brief of the appellee: “Upon entering the bus, the driver noted there were several people seated in the first few seats of the bus, including the appellant who was seated on the right side in the third seat. The driver, while not necessarily expecting any trouble, remembered the complaining outside the bus; and, noting that the appellant was sitting in the midst of those passengers who had already entered the bus, recognized the possibility that the complaining person might well be on the bus, but he had no idea who it might have been. Recognizing it as a delicate situation, the bus driver in a normal voice suggested to the appellant that he move to the other side of the bus, one or two seats further back.²

McPherson refused to move and the driver went outside the bus to admit other persons, then later came into the bus again and asked McPherson again if he was going to take the other seat. The passenger declined to do so and asked the driver why he should move, to which the driver responded, “Well, I asked you to.” As the driver walked back to the front of the bus again, McPherson asked him again why he should move and the driver said that he had “answered him the first time he asked me.” Thereafter, McPherson asked him again why he should move and the bus driver said that after he had gotten back up to the front of the bus, “I finally told him for his own safety.” Just before the bus started, one of two men who were sitting across the aisle one seat behind that occupied by appellant, tapped him on the shoulder and asked him, “Why don’t you do as the man said?” Receiving no answer, he then said, “Where are you going ?” McPherson did not answer this and the man said, “You may not reach where you are going.” By this time the passengers had got on and the bus driver came in and the bus left the depot. McPherson did not tell the bus driver that the man had spoken to him. After the bus left the depot and got out on the highway toward Griffin, the white man, who in the meantime had asked the bus driver if he could get off the bus at any place and had received the reply that all he had to do was to pull the cord, moved over and sat down in the seat where McPherson was sitting. He said, “Why didn’t you do as the bus driver and I told you?” McPherson said, “I am sitting here, I am not bothering anyone.” And he also said, “In my country we sit wherever there is a vacant seat.” To this the other replied, “You are not in your country now and I am going to kill you.” He clenched his fist and began hitting McPherson in the head and on his face.³ McPherson called the bus driver and pulled the cord. The bus stopped. The bus driver was disturbed over the fact that a lady with a small child wished to get off and he stepped out on the ground and then came back in and saw the assailant strike McPherson one blow. In the meantime, a white passenger named-Hicks, sitting at the rear of the bus, had come up and undertaken to separate the assailant and McPherson, but when the bus driver came down the aisle, the assailant spun him around and pushed him out the aisle and out of the bus. He then disappeared. Boutwell, the bus driver, made no inquiry of the injured man and made no effort to obtain the names of witnesses until after he had made his regular stop at Jonesboro and then moved on towards Griffin. Then he stopped on the open highway and obtained the names of some of the passengers. The bus proceeded to Griffin, at which point McPherson left the bus and went to the hospital in that city where he was treated for his injuries.

Of course, McPherson’s testimony as to the occurrence differed somewhat from that which is outlined above. He testified that the bus driver initially had refused to take his ticket, although he had not crowded ahead of anyone. He also testified that the bus driver spoke to the two men sitting across the aisle from him, when one of them inquired as to whether he could get off at any point and thereafter said to McPherson, “I don’t care who jumps you,” when McPherson asked him why he should move. McPherson’s testimony does not contain any statement that he heard the driver respond finally to the inquiry as to why he should move his seat by saying, “For your safety.” There is no evidence that this remark when the driver was back at his seat in the front of the bus was heard by McPherson.⁴

Boutwell made no report either at Jonesboro or at Griffin to any police officers concerning the attack made on his passenger. He made no inquiry of McPherson as to his condition or whether his injuries were slight or serious. Upon leaving the bus at Griffin, McPherson said, “Thank you.”⁵

Here there was no attempt by the appellant to question the right of the jury to pass upon the historical facts that occurred on the afternoon of September 22, 1961. We have, rather, the contention of appellant that taking the facts as testified to by the appellee and on its behalf, the trial court should have concluded, as a matter of law, that the bus company did not meet the standard of care which it owed to its passenger. If this proposition is established, it of course, falls within the purview of proper judicial review. As stated by this court in Cole v. Usry, 5 Cir., 294 F.2d 426, “We appreciate the extremely limited scope of review by this court of the judgment entered on the jury’s verdict. (Footnote omitted). Nevertheless, this court owes a duty not as a mere automation, but as a judicial function to determine whether there is really a rational basis for a jury’s verdict. See Reuter v. Eastern Air Lines, 5 Cir., 1965, 226 F.2d 443, 445.”

Then, after discussing the facts of that case (tried to a jury) dealing with the question whether real estate sold by a taxpayer was sold as a capital asset or was a sale of property held for sale to customers in the ordinary course of business, this court said:

“Somewhat paradoxically in the present case, a clearer view can be had of the reasonableness of the answer to the ultimate question, than of whether different conclusions could reasonably be reached on any one or more of the factors to be considered in answering that question. Considering the case in its entirety, it seems clear to us that the controlling facts are so extreme as to make it utterly unreasonable to hold that the property here involved was held by the taxpayers primarily for sale to their customers in the ordinary course of their trade or business. Unless every jury verdict in cases of this kind is to be upheld, this one should be set aside, and judgment for the plaintiffs should be entered notwithstanding the verdict.” 294 F.2d 426, 430.

And now, the question here is whether the fact that the bus driver, within the hearing of the man who subsequently attacked him, told McPherson to move to the rear of the bus and, when asked the reason for such a request, said: “Well, I asked you to,” at a time when the driver had heard someone near the entrance of the bus make threats against the passenger which he did not communicate to the passenger in order to give him an opportunity to exercise his judgment whether such threats presented him with a serious danger,⁶ (all of which facts are undisputed on this record.), constituted a failure of the driver to use that degree of care which, under the laws of the State of Georgia is owed to a passenger.

The Georgia standard of care owed by a common carrier to its passenger is as strict as any that can be imagined short of insuring the safety of the passenger. The Georgia Supreme Court has expressed it in these terms:

“A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence, injury, or outrage and humiliation by third parties. Brunswick & Western R.R. Co. v. Ponder, 117 Ga. 63, 43 S.E. 430, 60 L.R.A. 713, 97 Am.St.Rep. 152. This duty applies whether the passenger is white or colored. This protection must be afforded by the conductor to the extent of all the power with which he is clothed by the company or by the law, and his failure to afford it, when he has knowledge that there is occasion for his interference, will subject the company to liability and damages.” Hillman v. Ga. R.R. & Banking Co., 126 Ga. 814, 817, 56 S.E. 68, 69.

In Yellow Cab Co. of Atlanta v. Carmichael, 33 Ga.App. 364, 126 S.E. 269, it was stated as follows:

“A common carrier of passengers for hire is bound to use extraordinary care and diligence to protect its passengers in transit from violence or injury by third persons; and whenever a carrier through its agents and servants, knows, or has opportunity to know of a threatened injury to a passenger from third persons, whether such persons are passengers or not, or when the circumstances are such that an injury to a passenger from such a source might reasonably be anticipated, and proper precautions are not taken to prevent the injury, the carrier is liable for damages resulting therefrom.” (Emphasis supplied.)

In the case of Bullock v. Tamiami Trail Tours, Inc., 5th Cir., 266 F.2d 326, a Florida case in which the standard of care was no greater than is required under the Georgia decisions, dealt with what constituted “proper precaution.” This Court found as a matter of law that the failure to warn the passenger of facts endangering the passenger known to the driver required the setting aside of a judgment in favor of the carrier and required the entry of a judgment favoring the plaintiff on the issue of liability. In that case, the conversation of the bus drivers in the restaurant at the bus stop was thought to be responsible for the person who later became the assailant to get on the bus and attack the couple. The court explained that among the other failures to comply with the standard of care required were the following:

“The next question is whether or not Tamiami, so charged with the duty of foreseeing danger to its passengers, took proper precautions to avoid such danger by the ‘utmost care and diligence of a very cautious person.’ (Footnote citing Pelot v. Atlanta Coast Line R.R. Co., 1911, 60 Fla. 159, 53 So. 937, 938.) We think that Tamiami failed to exercise this care in several ways. It should have instructed its agency in Jamaica to advise Negroes applying for passage through the southern part of the United States of the South’s tradition of segregation. (This is not applicable here.) It should have instructed its drivers to advise Negroes who were obviously foreigners, here known to be such, of segregation customs. (This is probably not applicable here.) The driver should have explained to the Bullocks his reason for wanting them to move. Above all, the driver should not, either wilfully or negligently, have informed the assailant of the Bullocks' position on the bus and of their apparent color and lack of color.” (Not applicable here except for the request made by the bus driver of McPherson in the presence of the other passengers that he move farther back in the bus.)

Although the Bullock case was an appeal from a trial by a court without a jury, we think the standard of care set up and the measure of the duty owed by the bus company is to be uniformly applied whether in the trial before a court without a jury or in a jury trial. The court did not merely reverse that case for application of the proper standard; we reversed for entry of a judgment on liability against the carrier.

We cannot say that if Boutwell had explained to the passenger that he thought it would be better for him to move to the back of the bus because he had overheard threats against him outside the bus that McPherson would have moved and would thus have satisfied the pettiness of the self-appointed guardian of the tradition of segregation. Certain it is, however, that the formula used by the driver to cause McPherson to protect himself was the least likely to accomplish this purpose. At the very time that the issue was being tested out on common “carriers throughout the South, Boutwell could hardly have chosen a less fortunate method of requesting the passenger to move than to say in effect: “I want you to move because I told you to.” If it was true, as we said in Bullock, that, “The driver should have explained to the Bullocks his reason for wanting them to move,” so it is true in this jury case that “The driver should have explained to McPherson his reasons for wanting him to move.”

Instead, his request that McPherson move, ostensibly to anyone overhearing the request, for the purpose of maintaining the pattern of segregation, may well have been taken by the passengers as an open invitation to take direct action, as one of them did.

The standard of care owed by a carrier is high. No higher standard can be envisioned than that announced by the Supreme Court of Georgia as far back as 1906 when it says that this protection “must be afforded by the conductor to the extent of all the power with which he is clothed, by the company or by the law.” Hillman v. Ga. R. R. & Banking Co., supra.

There is no dispute on this record that driver Boutwell failed to exercise this degree of care when he asked the Negro passenger to move to the rear of the bus, because “I asked you to,” without informing the passenger at the same time that he had heard someone near the bus entrance make threats against him. The fact that Boutwell testified that he thought the hard feeling exhibited at the bus entrance was due to what he described as McPherson’s effort to get ahead of some ladies to get on the bus or that he didn’t really expect any danger does not lessen the obligation owed by the carrier once the passenger has been accepted and is brought within the care of the driver. This obligation, we said in Bullock, included informing the passenger of the facts which brought about the request to move to the rear of the bus.

We conclude that the principle laid down in the Bullock case dealing with the duty of the bus company to acquaint a passenger of any threat of danger known to it requires a reversal of the order of the trial court denying the judgment notwithstanding the verdict.

The judgment is reversed and the case is remanded to the trial court for their entry of a judgment in the issue of liability and for further proceedings not inconsistent with this opinion.

1 . It is a coincidence that September 22, 1961, the date on which the Rev. Mr. MePherson was attacked is the very date on which the Interstate Commerce Commission order forbidding future discrimination in operations of interstate motor carriers of passengers ICC No. Mc-C-3358 was promulgated.

2 . When cross-examined about this, the bus driver gave the following testimony:

“Q. Why would moving to the other side of the bus protect him?

“A. He would have been two or three seats further back.

“Q. What effect would that have had on his alleged assailants ?

“A. Well, you know, all of this desegregation had just begun to start a little after that and you know how the people of the South were still feeling about that time. I knew, you knew and he knew. All precautions you could take to keep anything down would probably be best.”

3 . The narration of this exchange between the assailant and McPherson is based on the latter’s testimony, but it is not disputed. It is partially supported by a defense witness who was sitting just behind the driver and overheard the white man, “kept telling him to move back, and he didn’t move, and so then the boy (a man she later said appeared to be between 28 and 35 years old) just got up and started beating him.”

4 . In an effort to impeach the driver as to the point, it was brought out that on giving his original deposition touching on his request that McPherson move, Boutwell had made no comment about his request being for the passenger’s safety.

5 . In his testimony he explained this by saying:

“For the treatment I had received and with no help from Mr. Boutwell, I said to him, ‘Thank you.’

“Q. Were you grateful to him? Is that the reason you said, ‘Thank you.’?

“A. We don’t say ‘Thank you’ always for gratefulness. If something — this particular time they say to you you should pray for those who despitefully use you, and upon this basis I said ‘Thank you’ to him.

“Q. Are you suggesting that perhaps it was sarcasm rather than for appreciation?

“A. I could not have appreciated getting beaten and getting my head swollen and my nose broken and have a headache.”

6 . It will be noted that after the passenger Hicks intervened and stopped the beating, McPherson did accept Hicks’ suggestion that he move to the back of the bus, for his further safety.