Pride v. Piedmont & Northern Railway Co.

AlleN, J. Common carriers are held to the highest degree of care for the protection of passengers, and are liable in damages not only for the wrongful acts of their own agents, but for those of strangers if they could be reasonably anticipated. The principle is fully recognized in this State in Perry v. R. R., 153 N. C., 296; Stanley v. R. R., 160 N. C., 323; Mills v. R. R., 172 N. C., 266, and is correctly stated in brief of counsel for the plaintiff with citation of authority. “While a common carrier is not an insurer of its passenger’s’ safety, and is perhaps hot bound to protect its passengers from injuries by third persons to the same extent and degree as from like injuries by its own agents or employees, yet it is the duty of its employees to exercise great care and vigilance in preserving order and in guarding passengers from annoyance, violence or insult threatened by fellow-passengers. . . .” 10 C. J., 900. “The carrier must exercise the highest diligence reasonably practicable to protect passengers frpm assault, abuse or injury at the hands of fellow-passengers or third persons, and the carrier is responsible to a passenger for a wrong inflicted by an intruder, stranger, or fellow-passenger, if the conductor or other servant knew or ought to have known, or ought to have reasonably anticipated, that it was threatened or was reasonably to be apprehended, and it could, with the assistance of employees or other willing passengers, have prevented it, but failed to do so.” 2 Moore on Carriers (2d Ed.), 1186. “The negligence for which the railway is held liable is not the wrong of the fellow-passenger or the stranger, but is the negligent omission of the carrier’s servants to prevent the wrong from being committed. In order that such omission may constitute negligence, there is involved the essential element that the carrier or his servants had knowledge, or with the proper care could have had knowledge, that the wrong was *597 imminent, and that he had such knowledge or the opportunity to acquire it sufficiently long in advance of the infliction of the wrong upon the passenger to have prevented it with the force at his command.” Hutchi-son on Carriers, sec. 980. The converse of this proposition is equally true that the carrier is not responsible for injuries resulting from the unauthorized acts of strangers which could not be reasonably foreseen or anticipated by the exercise of ordinary care, and it was this phase of the case the defendant asked to have submitted to the jury in the instruction, which his Honor refused to give. See Fanshaw v. Norfolk Traction Co., 108 Va., 300; McDonough v. Third Ave. R. Co., 88 N. Y. Supp., 609; Andrews v. Northern Pac. R. Co., 88 Wash., 139; Cary v. Los Angeles R. Co., 157 Cal., 599; Krone v. Southwestern, etc., R. Co., 97 Mo., 609; Cohen v. Pa., etc., Transit Co., 228 Pa., 243; Moore v. Woonsocket, etc., Co., 27 R. I., 450. The principle was applied in Mills v. R. R., supra, in which a nonsuit was sustained in an action to recover damages for an assault by a fellow-passenger, who was intoxicated, upon the ground that “there was nothing in the condition or conduct of George Wooten when in the presence of the conductor, or when he could have reasonably noted it, to give indication that he was quarrelsome or unruly,” and the evidence in this case falls directly within the rule stated. The plaintiff and the other passengers had traveled from Charlotte to Ehyne, a distance of about seven miles, ánd requiring from twenty to thirty minutes; the conductor had been through the car, but Kendrick, apparently disinterested, and the only witness who testified to the conduct of the stranger, said “the conductor did not see him drinking.” “The man was not cutting up any.” “He had not given any trouble before that. When the conductor was passing through the car he was behaving all right. He had not been disorderly in Mr. Taylor’s presence,” and there is no evidence to the contrary. The record as it now appears presents a sharp conflict between the plaintiff and defendant, dependent on whether the car was started by the porter or by a stranger, and the defendant was therefore entitled to the instruction prayed for. New trial.