Leake v. Queen City Coach Co.

Pless, J. The plaintiff relies upon the case of Smith v. Cab Co., 227 N.C. 572, 42 S.E. 2d 657, to establish the alleged liability of the defendant in this case; but the facts in that case are noticeably different from those in the present litigation. In that case, the evidence was to the effect that the plaintiff entered the defendant’s cab about 2:00 o’clock in the morning, that she was pulled out of it by a woman with whom she had had trouble earlier in the evening, that the plaintiff succeeded in getting back into the cab, and the driver was urged to drive off. This he failed to do, saying “I am going to see this well done.” He did, however, let the cab roll down to a dark spot about a half a block away, with plaintiff’s assailant and some of her friends still holding on to the cab and trying to fight her. Here the driver stopped the cab, got out, opened the back door, and departed, taking the switch keys. The girls were fighting her, but she could not start the cab as the driver had taken the keys. She was rescued and taken to a hospital where several stitches were taken to close a gash in her head. During the melee, plaintiff’s money and goods were thrown out of the cab, scattered, and lost. In the opinion, it is said: “Conceding that the driver of defendant’s cab was under no obligation to protect plaintiff while she was on the sidewalk, or to defend her or champion her cause outside of his cab, still [672] it would seem that the plaintiff’s testimony, that after she had gotten in the cab and the cab had proceeded half a block the driver stopped the cab, with plaintiff’s assailants surrounding, and left the scene, would afford some evidence of failure to exercise due care for the protection of one whom he had accepted as a passenger in his cab, and tend to sustain an action for damages for injuries received and property lost proximately resulting therefrom.” The Court there summarized the applicable law which we herewith quote, omitting citations: “The duty owed by common carriers to passengers being transported by them has been frequently stated by this Court to be to provide for the safe conveyance of their passengers ‘as far as human care and foresight’ can go, consistent with practical operation of the business. And in the performance of its duty it is obligatory upon the carrier to protect a passenger from assault, not only by the carrier’s employees, but also by intruders, when by the exercise of due care the acts of violence might have been foreseen and avoided. This obligation on the part of the carrier with respect to the safety of passengers continues until the journey expressly or impliedly contracted for is concluded. But before liability may be predicated for the injury to the passenger, it must have proximately resulted from the negligent failure of the carrier to perform its duty. And the carrier must have known of, or had reasonable grounds to anticipate the assault by intruders, with present ability to avoid injury to the passenger by the exercise of proper care. “We do not conceive it to be the legal duty of the driver of a taxicab to interfere in a fight on the street or sidewalk between third parties and one who is desirous of becoming a passenger but who has not entered the vehicle, but after the person has been accepted as a passenger and has entered the conveyance, the duty is imposed upon the carrier to exercise due care and vigilance to protect the passenger in transit from violence threatened by third parties when the circumstances are such as to indicate that injury to the passenger might reasonably be anticipated and avoided by the exercise of proper care. However, the carrier is not an insurer of the safety of its passenger, and can only be held liable in damages for negligent breach of its duty, proximately resulting in injury to the passenger, or causing loss of packages accepted with the passenger for transportation.” (Underscoring added.) [673] Tested by the above rules, we are of the opinion that the driver of the defendant’s bus had no reasonable grounds to anticipate an assault by the unknown passenger upon the plaintiff. Taken in the light most favorable to the plaintiff, X was a loud talking, boisterous drunk person whom the bus driver asked to quiet down. While X had had an altercation with some people sitting near him at the back of the bus, the record does not show that they complained. There had been no kind of unpleasantness between him and the plaintiff and nothing to cause the bus driver to suspect an attack upon the plaintiff or any other passenger. The only knowledge or notice imputed to the defendant would be that of the driver. The latter did not see X drink any whiskey, smell any odor on him, or see him with any packages which might have contained liquor, or know of his striking one of the marines. When he asked him to lower his voice because some of the people liked to sleep, X replied he would be glad to, and he, the driver, did not hear him any more. It was immediately following this peaceable attitude on the part of X that he stuck the pin or needle in the plaintiff as he was returning to his seat at the back of the bus. Since the plaintiff was lying on the seat with his hips exposed to the aisle, it is entirely likely that the action of X was impetuous in that the position of the plaintiff presented a target and a temptation which he could not resist. On this bus, as in practically all of them, the carrier has only one employee — the driver. His primary duty is to give his full attention to the operation of the bus. If he concentrates his faculties upon this all-important duty, he is not likely to observe the conduct of the passengers except in most unusual cases. In the average bus, thirty or forty feet long, and with as many as sixty passengers, the noise of the bus and the voices of the passengers in conversation would prevent him from hearing anything at the back of the bus except extremely loud noise. And with duty of watching the road in front and other vehicles behind, through his rear view mirrors, he cannot give attention to the actions of the passengers unless so unusual as to demand it. Here the driver, Norton, had seen no trouble from X but had learned (the record doesn’t show how) that he was talking loudly. Upon being asked to lower his voice, X said he would be glad to, and returned toward his seat. There was nothing in his demeanor to cause Norton to foresee any trouble, there had been no altercation or unpleasantness between X and the plaintiff, and no reason for the driver to anticipate an attack on the plaintiff who had no connection with whatever X’s previous conduct had been. [674] We are of the opinion that the facts in this case are governed by the rule laid down in Mills v. R. R., 172 N.C. 266, 90 S.E. 221. In that case it appeared that a passenger, who was drinking, stumbled over a basket of eggs belonging to the conductor. They were in the baggage car, and the conductor told the passenger that he could not ride in the baggage car and that he then returned to his seat in the coach. Later, the plaintiff, who was also drinking, had an altercation with the other passenger, and they had a fight, resulting in injuries to the plaintiff. The Court held that these facts were not sufficient to go to the jury and ordered that the cause be nonsuited. In Pride v. R. R., 176 N.C. 594, 97 S.E. 418, the Court said: “ '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 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.’ Hutchison on Carriers, § 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 reasonable foreseen or anticipated by the exercise of ordinary care . . .” We are of the opinion that the defendant’s motion for judgment of nonsuit should have been allowed. Reversed.