Britton v. Atlanta & Charlotte Air-Line Railway Co.

Ruffin, J. The court lias found no difficulty in concurring in many, if not all, of the propositions propounded in the charge of His Honor to the jury, or in the positions assumed by counsel at this bar. No sort of doubt is entertained as to the right, and, in some cases, the duty, of carriers, who undertake to convey passengers for hire, to establish and enforce reasonable rules and regulations for the government and direction of their trains, or as to the duty resting upon the passengers, when uninformed in regard to them, to inquire into and learn their established regulations, and when instructed, to make their actions and movements conform thereto. Equally well settled does it seem to be, both upon principle and authority, that amongst those reasonable regulations which they have a right to adopt, is the one of classifying their passengers and assigning them to separate, though not unequal accommodations. This right, as regards the separation of the white and colorecf races in public places, has been expressly and fully recognized in many of the courts, both state and national. Westchester R. R. Co. v. Miles, 55 Penn. St. Rep., 205; Day v. Owen, 5 Mich., 520; Hall v. DeCuir, 95 U. S. Rep., 485. In some of the cases, it is said to be not barely a right appertaining to the carrier, but a positive duty, whenever its exercise may be necessary in order to prevent contacts and collisions arising from natural or well known antipathies, such as are likely to lead to disturbances from promiscuous intermingling. If this be so, then in no case does it seem possible that it could so certainly attain to that standard, and become imperative upon the carrier, as on the occasion of an irregular excursion party, composed mainly of irresponsible and excitable individuals. Satisfied, however, as the court may be of the correctness of the principles asserted, it is still at a loss to perceive what con *543 nection they have with the case in hand, or how in any way it could be made to be dependent upon them, since the evidence wholly fails to show that the defendant had, on this occasion, established any fixed or certain rule in reference to the matter. It is true, that the handbills, by which the time and the terms of the excursion were published, announced that there would be “separate cars for white and colored,” but whether this was one of the acts of the advertiser, resorted to in order to render the excursion popular with the better paying class of citizens, or whether it was intended to be a regulation for the government of the conduct of all parties, is left altogether uncertain. In the absence of all other proof upon the point, the court might and probably would put the latter construction upon it; but it is impossible to do so when the defendant shows, out of the mouth of its own witness and officer, that the real instruction given to the conductor of the train was, not to enforce it as a law of the company’s making, but simply to give advice upon the subject, and then leave it to each individual to determine his or her own course. The rules and regulation which the carrier has the right to adopt, in matters of this sort,'must be such as are reasonable in their nature, and in their demands upon the passenger; and to be this, they must have for their first and main object the safety and convenience of the passenger, and must be uniform, positive, and obligatory alike upon all parties. The carrier is presumed fully to understand the exigencies of such occasions, and how to meet them; and it is for him to decide and see that others obey; nor will the law permit him, by any equivocal or uncertain course of conduct — such as barely giving advice — to shift the responsibility from ,his own shoulders to those of the passenger. When the plaintiff and her friends took seats in the coach in question, they did so in the exercise of a right and a discretion expressly left to them by the defendant’s own regulation, and were therefore clothed with every privilege that appertained to any other .passenger in the coach, and were entitled as fully as *544 any other to be protected from injuries arising, as well as from the neglect of the company’s servants as from the unprovoked assaults of their fellow-passengers; and more especially was this so, after the conductor had been appealed to, and assured them of their right to the seats, even though he did offer the advice which he had been instructed to give them. So that, the right of the plaintiff to recover in this action depends, as we conceive, upon no question connected with her color or with her presence in any particular coach in the defendant’s train, but upon the general law regulating the duties and responsibility of the carriers of passengers in all such cases. While in this state there seems to be no express authority as to the duty of the carrier to afford protection to the passengers against the assaults of his fellow-passengers or strangers, we still have the decisions of other courts in regard to it, which, although comparatively recent, strenuously commend themselves to our consideration, as well by their right reasoning and plain sense of justice as by the high character of the tribunals from which they emanate. According to the uniform tendency of these adjudications which we admit as authorities, the carrier owes to the passenger the duty of protecting him from the violence and assaults of his fellow-passengers or intruders, and will be held responsible for his own or his servant’s neglect in this particular, when, by the exercise of proper care, the acts of violence might have been foreseen and prevented; and while not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready 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. New Orleans R. R. Co. v. Burke, 53 Miss., 200; Pittsburg R. R. Co. v. Hinds, 53 Pa. St. Rep., 512; Pittsburg R. R. Co. v. Pillow, 76 Pa. St. Rep., 510; Flint v. Norwich Transportation Co., 34 Conn., 554; Thompson on Carrier, 303. *545 Tested by this rule, and conceding that the facts of the case were as insisted upon by the defendant, and as proved to be by its own witnesses, the conduct of the defendant’s servants, and especially of its condutor, was grossly and unpardonably negligent. He had knowledge of the reckless character of those who occupied the coach with the plaintiff; and while he may not have had positive premonition of threats towards her, he was fully aware of the dissatisfaction to which her presence there, with her companions, had given rise, and of the desire for their expulsion, which had been openly expressed, as well as of the fact that ribald songs and coarse and insulting language had been indulged in for the very purpose of vexing them and rendering their situation intolerable. Circumstances such as these ought to have aroused, if they did not, the apprehensions of the officer for the safety of the plaintiff, and called for his constant and watchful interposition in her behalf, in order to protect her from insult and injury. His duty at that time was made so plain that the law itself will pronounce upon his conduct, and declare to be inexcusable his negligence in sending off upon other missions every other employee of the company, and betaking himself to the baggage car during the entire stay of the train at that depot. His dalliance, too, in going to her relief when informed of the immi-nency of the outrage upon her rights, manifested such an indifference on his part as was inconsistent with her claims and his duty. The duty which he owed to the defendant, of looking after the baggage of the passengers and putting the train in motion, was altogether secondary to that which, under the circumstances, he owed to the plaintiff, and should have been promptly subordinated thereto; and his failure to do this was another instance of negligence on his part, which brings responsibility upon the employer. But above all this, the plaintiff had, as we have seen, acquired an established right to the seat which she occupied upon entering the defendant’s train. She held it by the same tenure that *546 every other passenger upon the train held his seat, and no one had the right either to call upon her to surrender it or to eject her from it by force; and upon being notified that her ejection had taken place, the first duty of the officer was to see her restored to it; and not until this was done, if demanded by her, was his whole duty, or that of the defendant, to the plaintiff, fully discharged. The liability of the defendant to the plaintiff grows not out of the fact that she was injured, but out of the failure of its servants to afford her protection, after they had reasonable grounds for believing that violence to her was imminent, and also out of their omission to see her righted after the commission of the assault upon her, and her forcible ejection from her seat. The failure of its servants to discharge these duties to the plaintiff stands exactly upon the same footing as would their failure to discharge any other duty which the defendant, as a carrier, owed to her; and upon the maxim respondeat superior, their negligence rendered it liable. Whether there is negligence, when the facts are admitted, or proved, becomes a question of law for the court to determine, and, therefore, this court thinks the plaintiff was entitled to the instruction asked, that, taking the whole evidence to be true, she was entitled to recover of the defendant compensation for her injuries, sustained by reason of the negligeuce of its servants. Because of the omission on the part of the judge below to give such instructions to the jury, she is entitled to a venire de novo. Error. Venire de novo.