Penny v. Atlantic Coast Line Railroad

Beoww, J. We are of opinion tbat tbe complaint presents but one cause of action, and tbat is tbe allegation tbat tbe defendant, while tbe plaintiff was a passenger onfits train and entitled to its protection, negligently failed to protect him while alighting at tbe end of tbe journey, in consequence of which tbe plaintiff was injured. ■ Tbe amended complaint sets out no cause of action and adds nothing to tbe original complaint. Therefore, tbe fourth issue in regard to tbe statute of limitations is unnecessary. There is evidence tending to prove tbat on 18 September, 1898, plaintiff was a passenger on defendant’s train from Wilmington to Leland, N. O., in tbe second-class car. A negro passenger, Sam Calloway, partly intoxicated, became very disorderly, and after much trouble, was subdued by tbe conductor with tbe assistance of tbe porter, tbe baggage master Van Amringe, and one LaMotte, who was a passenger on this train, although in tbe employment of defendant, but not on duty. Tbe conductor then undertook to search Calloway for arms, but found none. Tbe disturbance bad been entirely quieted before train reached Leland. — 299 — Galloway jumped off train at Leland, and while on the ground, seeing LaMotte, asked him if he meant to cut him; LaMotte replied, “I will cut your heart out,” and then went in baggage car and asked Yan Amringe, the baggage master, for his pistol, which Yan Amringe gave him. LaMotte then went to the platform of the secpnd-class car, the train being at full stop for passengers to get off. The negro Galloway was on the ground in a diagonal direction on the Leland side. LaMotte snapped pistol three times at hitíi, but it did not fire. Just about this time plaintiff passed over from the second-class car on the platform of first-class ear and down the steps of the car for the purpose of leaving the train. It was then that Galloway fired, and the bullet took effect on plaintiff, injuring him. It is contended by the plaintiff that the conductor was standing on the car platform, knew what was going on, and permitted plaintiff unwillingly without warning to step down on ear steps in a highly dangerous position, in consequence of which he was shot. This is plaintiff’s only cause of action, and it is clearly stated in the complaint. The defendant denies the alleged negligence of the conductor Garmon, and offers evidence tending to controvert plaintiff’s contention. Defendant also contends that the plaintiff must have seen the disturbance, and carelessly and negligently, without necessity, exposed himself to obvious danger. His Honor instructed the jury that if the defendant, by the exercise of the "highest degree of care and human .forethought” could have prevented LaMotte from assaulting Calloway, and that this would have saved Penny from being injured, and defendant failed to do so, defendant would be liable, and to answer first issue, Yes. This instruction is erroneous in two respects. 1. It assumes that the defendant is in any event liable for LaMotte’s acts. He was not on duty, but was a passenger on the train, and in the consideration of this case must be regarded as such. The conductor in charge of the train was not bound to foresee that La-Motte would borrow a pistol and engage in a difficulty with Calloway after Calloway had left the train and ceased to be a passenger. The conductor could not foresee that Calloway had — 300 — a pistol with which injury might be inflicted on a passenger, since he had searched Calloway and found none. 2. While the carrier is not an insurer, its servants are required to exercise the highest degree of care in the transportation, as well as the protection, of passengers from actual impending assaults of fellow passengers and intruders. For the latter purpose it must use all available means at hand. But the carrier is not required to foresee and guard the passenger against all assaults, but only agaiiist such as from the circumstances may reasonably be expected to occur. The duty of the defendant is clearly stated in Britton’s case, 88 N. C., 536, by Ruffin, J., as follows: “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.” This view of the law. is well sustained by authorities elsewhere. Pounder v. R. R. (1892), 1 Q. B. D., 383; Royster v. R. R., 67 Miss., 376; Putman v. R. R., 55 N. Y., 108; Brooks v. R. R., 168 Mass., 164, 168. The court further instructed the jury: “If the jury shall find by the greater weight of the evidence that a difficulty was pending between LaMotte and Calloway and Yan Amringe, the baggage master on the train, with a knowledge of the purpose for which LaMotte wanted it, handed him a pistol with which he could shoot Calloway, and that LaMotte took the pistol out on the platform, and pointing the same towards Calloway tried to shoot him, but could not discharge the pistol, and this caused the said Calloway to fire the shots at LaMotte which struck the plaintiff, then the jury should answer the first issue, Yes.” It is contended that his Honor neglected to give the correlative contention of the defendant, and that he should have told the jury that if Yan Amringe gave the pistol to LaMotte without any knowledge of the purpose for which LaMotte intended to use, then the defendant would not be liable on this ground. In Jarrett v. Trunk Co., 144 N. C., 299, it is held that if the trial judge undertakes to apply the law to the facts and gives — 301 — tbe contention of one side, it is bis duty, without being requested, to give tbe correlative contention of tbe other side. But tbe instruction, in our opinion, is itself erroneous. 1. Because there is no evidence that Van Amringe knew or bad reason to believe that LaMotte borrowed tbe pistol for an unlawful purpose. 2. Tbe act of Van Amringe in lending tbe pistol to LaMotte was not tbe proximate cause of tbe injury to plaintiff — which was caused by a stray bullet fired from Calloway’s pistol. Tbe accidental wounding of plaintiff did not follow in direct sequence from tbe act of Van Amringe, assuming for tbe sake of argument that tbe latter was guilty of negligence in lending bis pistol to LaMotte. Ramsbottom v. R. R., 138 N. C., 39. In this case it is held by Mr. Justice Solté that tbe proximate cause of an injury is one that produces tbe result in continuous sequence, without which it would not occur, and which a man of ordinary prudence could reasonably be expected to foresee. There is, in legal parlance, no direct causal connection between tbe act of Van Amringe in loaning tbe pistol and tbe unforeseen accidental injury to plaintiff by Calloway. Harton v. Telegraph Co., 146 N. C., 429; McGee v. R. R., 147 N. C., 142; Bowers v. R. R., 144 N. C., 684; 1 Street’s Foundations, 120. To constitute liability there must not only be a breach of duty owing by tbe defendant to tbe plaintiff and injury to tbe latter, but tbe breach of duty must be tbe cause, and tbe proximate cause, of tbe injury. So far as tbe act of Van Amringe is concerned it is a case of post hoc, but not "ergo propter hoc," as was said by Manning, J., in Hudson v. McArthur, 152 N. C., 452. In McDowall v. Great W. R. R. Co. (1903), 2 K. B., 331, on page 337, Vaughan Williams, L. J., says: “In those cases in which a part of tbe cause of action was an interference of a stranger or a third person, tbe defendants are not held responsible unless it is found that that which they do, or omitted to do — ■ tbe negligence to perform a particular duty- — is itself tbe effective cause of tbe accident.” That case is instructive upon this point. It was there held that tbe servants of tbe defendant bad been guilty of negligence in not properly placing tbe railway van, but that it having been — 302 — interfered with by trespassers, the negligence of the defendant’s servants was not the effective cause of the accident, and the defendant was exonerated. In Burt v. Advertising Newspaper Co., 154 Mass., 238, Mr. Justice Holmes uses this language: “Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, any more than a particular act by this or that individual.” That proposition is illustrated in a great number of cases. Cole v. German S. & L. Soc., 124 Fed., 113; Laidlaw v. Sage, 158 N. Y., 73; Leeds v. N. Y. Tel. Co., 178 N. Y., 118; Clark v. Wilmington R. R., 109 N. C., 430; Butts v. R. R., 110 Fed., 329; Johnson v. Association, 68 L. R. A., 499; Winfall v. Jones, 1 L. R. A. (U. S.), 201. Upon the issue of contributory negligence the court failed to give the following requested instruction, which is assigned as error: “If the jury shall find from the evidence that Penny, the plaintiff, went out on the platform and at that time the negro had the pistol aimed towards the car where Penny was, and the danger could be as reasonably apprehended by the plaintiff as by the defendant, and the plaintiff did not turn out of his way or go back to avoid the injury, and the accident happened, he would be guilty of contributory negligence. It was the duty of the plaintiff to exercise his senses for his own protection, and if he saw the danger, or could have seen it in the exercise of the reasonable care of a prudent man and failed to do so, he would be guilty of contributory negligence, and you should answer the second issue, Yes.” This is a correct proposition of law and should have been given. This instruction points to particular phases of the evidence, and it was error to refuse it, although his Honor did tell the ju\y in very general terms that “it was plaintiff’s duty to exercise his senses for his own protection.” Horne v. Power Co., 141 N. C., 50. Recurring to the allegation of negligence, the duty which defendant owed to plaintiff is to be determined by what transpired when the train stopped at Leland and the plaintiff undertook to — 303 — aligbt at tbe end of bis journey. It is undoubtedly true that tbe conductor bad no power to restrain plaintiff and prevent bim from leaving tbe train. Nevertheless, if as is charged by plaintiff, tbe conductor was standing on platform, when plaintiff came out of tbe car for tbe purpose of leaving, and if tbe conductor could then see that it was obviously dangerous for plaintiff to go down tbe steps at that moment, it was bis duty to warn tbe plaintiff and apprize bim of bis danger. If tbe conductor, having such knowledge, failed to warn plaintiff and permitted bim to venture on tbe steps ignorantly and unwittingly in tbe presence of obvious danger, it would be an act of negligence upon tbe part of tbe conductor and tbe defendant would be liable for consequent injury. Per contra, it is equally true, that if when plaintiff came out on tbe car platform, be could see for himself tbe “fracas” going on, it was bis duty to exercise bis faculties, and to act with tbe care of a prudent man and not venture down tbe steps into tbe midst of obvious danger. If plaintiff could see for himself tbe apparent danger, then be needed no warning. If then be ventured in tbe face of it, tbe consequent injury will be attributed to plaintiff’s own negligence, and be cannot recover. New trial.