Hillman v. Georgia Railroad & Banking Co. , 126 Ga. 814 ( 1906 )

Lumpkin, J.

(After stating the facts.)

According to the evidence for the plaintiff, a passenger-car set apart for colored passengers, as provided by law, was invaded by a drunken person, who was guilty of violent conduct, terrorizing the occupants of the car, and compelling the plaintiff to leave his seat and ride on the platform, while the conductor remained idly by and neither protected the passengers nor arrested or ejected the offender. The evidence of the conductor, which is partly copied in the statement of facts, shows how mildly he dealt with the boisterous passenger. 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 persons. Brunswick & Western R. Co. v. Ponder, 117 Ga. 63. 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 in damages.” Richmond & Danville R. Co. v. Jefferson, 89 Ga. 554. Conductors are clothed with police powers, and authorized to stop the train where the offense-is committed, or at the next stopping-place, and eject a passenger who is guilty of disorderly conduct, or of using obscene, profane, or vulgar language, or gaming on the train; he may cause the offender to be detained and delivered to the proper authorities, for trial, as soon as practicable. Penal Code, § 902. “With or without a ticket, a passenger has no right to remain on a train and be carried when he is disorderly, or uses any obscene, profane, or vulgar language.” Peavy v. Georgia R. Co., 81 Ga. 485. It is evident that the conductor’s own testimony made but a scant excuse for not protecting the plaintiff from being threatened, humiliated, and placed in danger by a drunken passenger, if indeed it amounted to any excuse at all.

The presiding judge did not present the issues in this case with his usual ability and clearness. If, in the charge to the effect that a conductor would not be justified in expelling from the train a passenger of known bad and turbulent character, “so long as such person was not guilty of conduct seriously annoying or dangerous to other passengers,” the word “seriously” is to be construed as qualifying both the words “annoying” and “dangerous,” the charge w'as clearly erroneous. A passenger does not have to be in serious danger before the duty of the conductor to protect him arises. If that word is to be considered as qualifying the word “annoying” only, it is still of doubtful propriety. In Pittsburg, Cincinnati and St. Louis R. Co. v. Vandyne, 57 Ind. 576, it is said: “A railroad company may refus'e to receive and carry as a passenger any person who is so intoxicated as to be disgusting, offensive, disagreeable or annoying, as long as he continues in that condition, though he may have purchased a ticket entitling him to passage. Slight intoxication, such as would not seriously affect the conduct of the passenger, will not justify a railroad company in refusing to receive and carry him.” Here the word “seriously” is used with respect to the effect on the conduct of the intoxicated passenger, not as holding that his conduct must be seriousfy annoying or dangerous to other passengers. Of course mere trivial annoyance or such as would not arise to a reasonable person, but only to the supersensitive or fastidious,- would not fall within the rule. It must be substantial, not - trivial. The illustration of counsel for defendant of a child who cries, or a man who snores, is not apt. These are innocent, natural acts. The annoying conduct of a drunkard or rowdy is a voluntary wrong, or one resulting from his voluntary act. The writer can conceive, however, of snoring or even laughter, which might assume such abnormal proportions and become so loud and prolonged that the sleeper should be waked or the guffaw checked in the interest of other passengers, especially if the unusual noise resulted from drunkenness. On page 579 of the authority above cited it is said: “A person so drunk as to be likely to violate the common proprieties, civilities, and decencies of life, has no right to passage while in that condition. The comfort and convenience of passengers must be protected, their opinions and feelings regarded, and proper decorum observed; and although, in a railroad passenger car, neither the highest breeding of the drawing-room, nor the fastidious delicacy of the parlol-, is required, yet the behavior of all persons therein should be becoming to the place and general character of the passengers.” See also Pittsburg & Connellsville R. Co. v. Pillow, 76 Penn. 510; Flint v. Norwich & N. Y. Co., 34 Conn. 554; Pittsburgh & Fort Wayne R. Co. v. Hinds, 53 Penn. 512; Murphy v. Union Ry. Co., 118 Mass. 228; Jencks v. Coleman, 2 Summer, 221. As to the care due to an intoxicated passenger who has been taken on board and is proceeding on his journey, see Milliman v. New York Central Ry. Co., 66 N. Y. 643; Brown v. Memphis & Charleston R. Co., 1 Am. & Eng. R. Cas. 247.

Eailroads doing business in this State are required by its statutes to furnish “equal accommodations, in separate cars, or compartments of cars, for white and colored passengers;” and it is also declared, that “the officers or employees having charge of such railroad-cars shall not permit white and colored passengers to occupy the same car or compartment, and a violation of this section shall be a misdemeanor.” Penal Code, §§ 526, 529. “The conductor and any and all employees on such cars have power to eject from the train or car any passenger who refuses to remain in such car or compartment or seat as may be assigned to him.” Penal Code, § 528. See also Civil Code, § 2270 et seq. The plaintiff expressly alleged that Scruggs, a white passenger, was drunk and disorderly, that he went into the car set apart for colored people, where he had no right to be, and where the plaintiff was rightfully and quietly seated, and without any cause or provocation began a violent assault upon the plaintiff, threatening and cursing him; that he drew a pistol, threatened to shoot the plaintiff, and drove the latter out of his seat and out of the car; and that all of this was in the presence of the conductor, whom the plaintiff continued to ask to protect him, but who failed and refused to do so. This was denied by the defendant in its answer. In his charge to the jury the presiding judge made no reference whatever to the very material issue as to the place where the alleged assault took place, or whether Scruggs was allowed to remain in a car -where he had no lawful right to be, and to assault the plaintiff who was lawfully there, or there to commit the other acts complained of. Whether the plaintiff was lawfully in that car, and Scruggs was unlawfully there, and was permitted to remain there, and to so act as to drive the plaintiff from his seat or necessitate his leaving it, was a material issue in the case, and it was error to omit altogether any reference to it. If Scruggs had no right to be at that place, and the plaintiff did have such a right, the conductor should have dealt with the situation with the requirements of the law in view.

It is contended on behalf of the defendant in error, that the only damages claimed are based on the assault or threatened assault, and not upon a violation of the statute in reference to separation of races, the reference to the fact that Scruggs was in the car set apart for colored people being merely incidental. A reading of the allegations on this subject, which are in effect stated above, will show that they were not incidental, but material and substantial. In a later portion of the declaration, in setting out the alleged negligence of the defendant, it is stated, among other things, “that the defendant, in all the particulars aforesaid, failed to exercise extraordinary care to protect the person of the plaintiff, who was its passenger on its train; but exposed the person of the passenger to danger by its negligence.”

The charge that “if a passenger is. guilty of boisterous and improper conduct, but desists from it after request or remonstrance or command of the conductor, the conductor would not be justified in expelling him from the train after he had so desisted,” is not an accurate, concrete statement of the law applicable to the facts disclosed by the evidence in this case. • It omits entirely any consideration of the question as to whether the conductor made a request or remonstrance or command in due time and in proper manner, for the protection of other passengers. Savannah, Florida & Western Ry. Co. v. Boyle, 115 Ga. 836. Moreover, if Scruggs was in a place where he had no lawful right to be, and the conductor permitted him to remain there, with a pistol in his hand, to the exclusion of the passengers who had a right to be there, this could hardly be called a desistance from the improper conduct. In Pittsburg, Fort Wayne & Chicago Ry. Co. v. Hinds, 53 Penn. 517, Woodward, C. J., in speaking of a conductor who failed to use proper efforts to suppress riotous conduct on the train, said: “Nor did his exhortation to the passengers to throw the fighters out come up to the demands of the hour. He should have led the way, and no doubt passengers and hands would have followed his lead/’

Judgment reversed.

All the Justices concur.