May 8, 1906. The opinion of the Court was delivered by
Plaintiff recovered a judgment of $25,000 damages against defendant, arising out of its alleged failure to protect her while a passenger on its railroad, between Greenville and Atlanta, from the indignity which she averred she suffered from a fellow-passenger, in putting his arms around her and taking other liberties with her person, against her will, and using indecent language in her presence. While the exceptions are numerous, the appeal really involves only five questions.
1. The defendant having admitted ownership of the railroad under a charter obtained from the State, it could not escape liability on the ground that the tort, if any, was committed
by another corporation actually operating the road, and evidence on that point was properly excluded as irrelevant. This question has been recently settled after full argument in Smalley v. A. and C.A.L.Ry. Co., manuscript, overruling Pennington v. Ry. Co., 35 S.C. 439,18 S.E., 452.
2. As an important element of her damages, the plaintiff offered testimony to prove that the alleged indignities and a fall received in the car while moving her seat to escape the annoying advances had brought on an illness which resulted in a miscarriage and great suffering. In rebuttal the defendant proposed to introduce a record of the Grady Hospital, purporting to contain a statement made by the plaintiff, when entering that institution for treatment, about four years before this illness, and the history of her case while there. The record was produced by Dr. Johns, who testified it was made by him as one of the hospital physicians. As we understand, the defendant contends this record would have tended to prove that, according to her own statement then made, the plaintiff's physical condition was such as to make miscarriage probable without any such shock and excitement as are here alleged. According to the evidence of Dr. Johns the record as made by him contains these words: "Discharged cured April 27, `99." When produced in Court the record showed an interrogation point had been placed after the word "cured" and the words "(3-32 We uranalysis sp. gr. 1019 acid, neg. M.)" had been inserted near the end of the record. These changes, it appears, were not made by Dr. Johns or any other physician of the hospital, and the defendant offered no evidence to account for them. To have effect as independent proof of the facts stated in it, a paper must speak in its integrity of all that it contains. As there were alterations appearing after the record was made, before the defendant could have the benefit of the record as proof in itself of its contents, it was incumbent upon it to satisfactorily explain these alterations. This the defendant was unable to do and the Circuit Court
did not err in excluding the paper as record evidence. Kennedy
v. Moore, 17 S.C. 466.
3. But the Circuit Judge held further, that Dr. Johns could not as a witness speak from this record made by him as to the statements of plaintiff there written down concerning her physical condition and as to the hospital history of her case, unless after refreshing his memory he could testify to those things as facts within his memory independent of the record. When a witness testifies to making a record at the time of the transaction, and that he would not have made it if it had not been true, this is a sufficient basis for him to testify as to the facts as they appear in his record though he may not be able to recall these facts to his memory. The rule is thus stated in Bank v. Zorn, 14 S.C. 444,450: "The rule upon this subject, in its broadest outline, embraces two classes of cases: first, where the witness, after referring to the paper, speaks from his own memory, and depends upon his own recollection as to the facts testified to; where he relies upon the paper and testifies only because he finds the facts contained therein. In the first class, the paper is always permitted to be used by the witness without regard to when or by whom made. In the second class, this rule of admission is much more stringent. In fact, it cannot be used unless it be an original paper made by the witness himself, and contemporaneously with the transaction referred to." State v. Rawls, 2 N. Mc., 331; Greenleaf on Evidence, 439b.
As we understand the counsel for respondent did not dispute this general rule of evidence, but insisted that in the application of the rule Dr. Johns did not sufficiently establish the verity of his record to warrant the use of it by him in this testimony: and they further contend the evidence was irrelevant and immaterial. We cannot agree to the view that Dr. Johns did not swear with sufficient clearness to the verity of the record as made by him, for he distinctly testified more than once that while he could not recall to his memory the statement imputed to Mrs. Franklin in his record, yet he
knew he made it so far as it was in his handwriting, and that he would not have written down the statement if it had not been made by the plaintiff at the time.
As the case is to go back for a new trial it will be safer to say without discussion that we think this evidence relevant, and it was material because not in agreement with some of the evidence of plaintiff on the same point as will appear by reference to parallel columns incorporated in the opinion of the Chief Justice. For instance, Mrs. Franklin denied saying she had taken bromides and opiates to prevent miscarriage, that statement being attributed to her by Dr. Johns. All evidence tending to show that miscarriage was not improbable, without the fall and indignities which plaintiff testified she suffered on the train, was important to the defendant; especially was this so in view of the fact that the conductor and the other employees of the defendant on the train, testified there was no fall and no indignities from a fellow-passenger, of which they had any notice, and that they saw nothing which would require or justify the conductor's interference in the plaintiff's behalf, until he did inquire her wishes and conform to them by taking her to another seat, at the same time warning the man who had annoyed her not to approach her again.
We think it was, therefore, competent for Dr. Johns to testify from his record as to the statements made by Mrs. Franklin to him or in his presence and to his own diagnosis. It need hardly be said it was not competent for him to testify from his record as to the diagnosis of any other physician, because that would be mere hearsay.
The Circuit Judge stated explicitly to the jury the issues of both law and fact made by the pleadings, and we do not see that there was any objection to his suggesting to the jury to read over the pleadings in their room in order to obtain a clear perception of the issues of fact.
5. The defendant next insists the Circuit Judge erred in charging the jury, "A common carrier is bound to exercise
as high a degree of care to protect a passenger from the wrong or injury of a fellow-passenger as it is to observe, in order to protect all of the passengers from injury arising from the faulty construction of the railroad track, or the faulty running of the railroad trains." This instruction is well supported by authority. Thompson on Carriers of Passengers, 304; Simmons v. New Bedfordc. Co., 97 Mass. 361; Pittsburg R.R.
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May 8, 1906. The opinion of the Court was delivered by
Plaintiff recovered a judgment of $25,000 damages against defendant, arising out of its alleged failure to protect her while a passenger on its railroad, between Greenville and Atlanta, from the indignity which she averred she suffered from a fellow-passenger, in putting his arms around her and taking other liberties with her person, against her will, and using indecent language in her presence. While the exceptions are numerous, the appeal really involves only five questions.
1. The defendant having admitted ownership of the railroad under a charter obtained from the State, it could not escape liability on the ground that the tort, if any, was committed
by another corporation actually operating the road, and evidence on that point was properly excluded as irrelevant. This question has been recently settled after full argument in Smalley v. A. and C.A.L.Ry. Co., manuscript, overruling Pennington v. Ry. Co., 35 S.C. 439,18 S.E., 452.
2. As an important element of her damages, the plaintiff offered testimony to prove that the alleged indignities and a fall received in the car while moving her seat to escape the annoying advances had brought on an illness which resulted in a miscarriage and great suffering. In rebuttal the defendant proposed to introduce a record of the Grady Hospital, purporting to contain a statement made by the plaintiff, when entering that institution for treatment, about four years before this illness, and the history of her case while there. The record was produced by Dr. Johns, who testified it was made by him as one of the hospital physicians. As we understand, the defendant contends this record would have tended to prove that, according to her own statement then made, the plaintiff's physical condition was such as to make miscarriage probable without any such shock and excitement as are here alleged. According to the evidence of Dr. Johns the record as made by him contains these words: "Discharged cured April 27, `99." When produced in Court the record showed an interrogation point had been placed after the word "cured" and the words "(3-32 We uranalysis sp. gr. 1019 acid, neg. M.)" had been inserted near the end of the record. These changes, it appears, were not made by Dr. Johns or any other physician of the hospital, and the defendant offered no evidence to account for them. To have effect as independent proof of the facts stated in it, a paper must speak in its integrity of all that it contains. As there were alterations appearing after the record was made, before the defendant could have the benefit of the record as proof in itself of its contents, it was incumbent upon it to satisfactorily explain these alterations. This the defendant was unable to do and the Circuit Court
did not err in excluding the paper as record evidence. Kennedy
v. Moore, 17 S.C. 466.
3. But the Circuit Judge held further, that Dr. Johns could not as a witness speak from this record made by him as to the statements of plaintiff there written down concerning her physical condition and as to the hospital history of her case, unless after refreshing his memory he could testify to those things as facts within his memory independent of the record. When a witness testifies to making a record at the time of the transaction, and that he would not have made it if it had not been true, this is a sufficient basis for him to testify as to the facts as they appear in his record though he may not be able to recall these facts to his memory. The rule is thus stated in Bank v. Zorn, 14 S.C. 444,450: "The rule upon this subject, in its broadest outline, embraces two classes of cases: first, where the witness, after referring to the paper, speaks from his own memory, and depends upon his own recollection as to the facts testified to; where he relies upon the paper and testifies only because he finds the facts contained therein. In the first class, the paper is always permitted to be used by the witness without regard to when or by whom made. In the second class, this rule of admission is much more stringent. In fact, it cannot be used unless it be an original paper made by the witness himself, and contemporaneously with the transaction referred to." State v. Rawls, 2 N. Mc., 331; Greenleaf on Evidence, 439b.
As we understand the counsel for respondent did not dispute this general rule of evidence, but insisted that in the application of the rule Dr. Johns did not sufficiently establish the verity of his record to warrant the use of it by him in this testimony: and they further contend the evidence was irrelevant and immaterial. We cannot agree to the view that Dr. Johns did not swear with sufficient clearness to the verity of the record as made by him, for he distinctly testified more than once that while he could not recall to his memory the statement imputed to Mrs. Franklin in his record, yet he
knew he made it so far as it was in his handwriting, and that he would not have written down the statement if it had not been made by the plaintiff at the time.
As the case is to go back for a new trial it will be safer to say without discussion that we think this evidence relevant, and it was material because not in agreement with some of the evidence of plaintiff on the same point as will appear by reference to parallel columns incorporated in the opinion of the Chief Justice. For instance, Mrs. Franklin denied saying she had taken bromides and opiates to prevent miscarriage, that statement being attributed to her by Dr. Johns. All evidence tending to show that miscarriage was not improbable, without the fall and indignities which plaintiff testified she suffered on the train, was important to the defendant; especially was this so in view of the fact that the conductor and the other employees of the defendant on the train, testified there was no fall and no indignities from a fellow-passenger, of which they had any notice, and that they saw nothing which would require or justify the conductor's interference in the plaintiff's behalf, until he did inquire her wishes and conform to them by taking her to another seat, at the same time warning the man who had annoyed her not to approach her again.
We think it was, therefore, competent for Dr. Johns to testify from his record as to the statements made by Mrs. Franklin to him or in his presence and to his own diagnosis. It need hardly be said it was not competent for him to testify from his record as to the diagnosis of any other physician, because that would be mere hearsay.
The Circuit Judge stated explicitly to the jury the issues of both law and fact made by the pleadings, and we do not see that there was any objection to his suggesting to the jury to read over the pleadings in their room in order to obtain a clear perception of the issues of fact.
5. The defendant next insists the Circuit Judge erred in charging the jury, "A common carrier is bound to exercise
as high a degree of care to protect a passenger from the wrong or injury of a fellow-passenger as it is to observe, in order to protect all of the passengers from injury arising from the faulty construction of the railroad track, or the faulty running of the railroad trains." This instruction is well supported by authority. Thompson on Carriers of Passengers, 304; Simmons v. New Bedfordc. Co., 97 Mass. 361; Pittsburg R.R. Co. v. Pillow, 76 Pa. St., 511; Richmond R.R. Co. v. Jefferson, 32 A. St., 87 (Ga.), and note; Spohn v. R.R. Co., 87 Mo., 74; Louisville Nashville R.R. Co. v. McKenna, 2 Am. Eng. R. R. Cases, 114; Spangler v. St. Joseph G.I. Ry. Co., 74 Pacific, 607.
But there are factors which enter into the practical application of the rule of the highest degree of care to the protection of passengers from improper conduct of fellow-passengers which are not present in its application to the carrier's mechanical agencies and its servants. Due regard to known mechanical laws, and the selection of employees are matters within the control of the carrier; but a carrier has only a limited control over passengers on its trains. It has no right to direct their actions, so long as they do not conflict with its rules reasonably necessary for the conduct of its business, or with the correlative rights of the other passengers. Indeed, interference on the part of a conductor with free communication between passengers will be generally regarded as impertinent by those concerned, except when there is a clear violation of the rules of good behavior by one passenger to the annoyance of others. When that moment comes, it is obviously the duty of the conductor to act, but to know the moment until complaint is made by the passenger of annoyance, is often extremely difficult. Ordinarily, any unwelcome advances by one passenger to another may be effectively rebuffed by the passenger himself. In applying the highest degree of care to this duty of protection by the conductor, it is further to be borne in mind, that good conduct and respect among passengers is the rule, and insult
and wrong extremely rare, and that experience has shown that the other duties of a conductor requiring his absence from the car from time to time may ordinarily be performed without risk of injury of one passenger to another in his absence. Hence, it cannot be laid down as a general proposition that the exercise of the highest degree of care for the protection of passengers from each other requires that the carrier should keep a watch over the passengers on its train except over those from whom it has reason to anticipate improper behavior. The rule thus stated in 1 Fetter on Carriers of Passengers, is in accord with practically all the authorities: "Carriers of passengers are not insurers of the entire immunity of their passengers from the misconduct of fellow-passengers or of strangers, any more than they are insurers of the absolute safety of passengers in other respects. Nor can the carrier be held liable for such misconduct on the principle of respondeat superior, as in the case of the misconduct of his servants. But although the doctrine is of comparatively recent growth, it is now firmly established that a carrier of passengers must exercise the same high degree of care to protect them from the wrongful acts of their fellow-passengers or of strangers that is required for the prevention of casualties in the management and operation of its train, namely, the utmost care, vigilance and precaution consistent with the mode of conveyance, and with its practical operation. While not required to furnish a police force sufficient to overcome all force when unexpectedly and suddenly offered, it is the carrier's duty to provide 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; and having furnished such force, the carrier is chargeable with their neglect in failing to protect a passenger from assaults by strangers. This strict rule of duty must, however, be applied in view of the relation which the carrier sustains to all the passengers, and the circumstances of each particular case calling for its exercise. Knowledge
of the existence of the danger, or of facts and circumstances from which the danger may be reasonably anticipated, is necessary to fix a liability upon the carrier for damages sustained in consequence of failure to guard against it." Here the evidence on the side of the plaintiff was that the conductor told her that the conduct of the passenger, who the plaintiff claimed maltreated her, had been improper towards other females on the same train, but this was positively denied by the conductor, who testified he had no reason whatever to expect misconduct from him. With this vital issue of fact before the jury, the Circuit Judge, in charging the general proposition that a railroad company is bound to keep a watch over passengers on its train. stated too strong a test of the degree of diligence required. True, the Court said in the same connection, "But you see the distinction that exists necessarily between the construction of the road or the running of a train of cars, and the care it must exercise to see that one is not injured by a fellow-passenger. It is bound to exercise as high a degree of care as is consistent with the circumstances in each case; but there is a distinction between the two cases, protecting a passenger from the wrong or injury of a fellow-passenger, and protecting a passenger from injury of a defective road or operating the dead matter which constitutes the railroad track and train. Now, the obligation is upon the railroad company to exercise care in both cases, and as high degree of care as is consistent with the circumstances surrounding each of the respective sources of danger; that is, the human being on the one hand and the railroad track and train on the other hand. And that is the distinction between the degrees of care or responsibility to which the law holds the railroad company, when it is apprised of the possibility or probability of a fellow-passenger to wrong or injure a passenger, and it is bound to exercise as high a degree of care to protect a passenger from the wrong or injury of a fellow-passenger as it is to observe, in order to protect all of the passengers from injury
arising from the faulty construction of the railroad track or the faulty running of the railroad train."
But we think the jury could not have failed to receive the impression that the law required of the carrier the keeping of a constant watch over its passengers not only after having information which should lead it to anticipate misconduct and guard against it, but to maintain such watch even when it had no reason to expect anything but the good conduct and courtesy usual among passengers on its train, in order to obtain information as to the conduct of the passengers.
For the errors which we have pointed out, the judgment is reversed and the cause remanded for a new trial.
MR. JUSTICE JONES concurs.
MR. JUSTICE GARY concurs, except in so far as the exceptions raising the question numbered "3" in the opinion are sustained.