Western & Atlantic Railroad v. Jackson

93 S.E. 547, 21 Ga. App. 50, 1917 Ga. App. LEXIS 419

• Court: Court of Appeals of Georgia
• Decided: September 27, 1917
• Docket: 8101
• Status: Published

Opinions

Wade, C. J.

(After stating the foregoing facts.)

1. It will be observed that the plaintiff’s cause- of action as finally amended is broadly grounded upon the proposition that when she became a passenger and paid her fare to a given point, it was the duty of the defendant • company to stop the train at her destination a sufficient length of time to allow her to leave it with safety to her life and person; and that if the plaintiff was carried beyond her stopping place by no fault of hers, but by the failure of the defendant company’s conductor and agent to do his duly in that respect, she might recover for any resulting damage. It is insisted, that the insulting language and conduct of Darden, ■which mortified, shocked, and humiliated her, was a direct proximate result of the failure of the defendant company to convey her to her' destination, or to afford her an opportunity to alight there in safety, and that therefore the jury were authorized to find damages in an amount sufficient to salve the injury to her wounded feelings.

It is unnecessary to say that for the breach of its duty to afford the passenger an opportunity to alight in safety at her destination, the plaintiff could have- recovered damages for the injuries directly resulting therefrom. In Burnett v. Rome Railway & Light Co., 7 Ga. App. 323 (66 S. E. 803), the petition alleged that the plaintiff was an old lady, unacquainted with the streets or their condition in the city of Eome, where the defendant operated a line of street-cars, and that she contracted with the conductor, in consideration of a fare of five cents, to convey her as a passenger from the point where she entered the car to “Cherokee street in south Eome; that the conductor failed to comply with his contract” to carry her to Cherokee street, but put her off at East Third street, and gave her a transfer which compelled her to walk a quarter of a mile to another car, and in going to this car she fell and dislocated and broke her hip; that if she had known that she could not be carried by the street-car to south Eome without having to walk this distance, on account of her age, infirmity, and defective eyesight, she would have employed some other means of conveyance, and would not have attempted to get on the ear. This court said: “No direct connection between the defendant and the fall is alleged. The plaintiff sues for the personal injury received through the fall. Held, that the defendant’s wrong, if any, was not the proximate cause of the injury; that the petition does not state a cause of action; and that it was properly dismissed on demurrer.” Again, in Central of Georgia Ry. Co. v. Dorsey, 116 Ga. 719 (42 S. E. 1024), it was said: “Damages traceable in some • measure to a tortious act, but resulting chiefly from other and , contingent circumstances, and not the, legal or natural consequence of the act, aré too remote to be the basis of recovery against the wrongdoer. It follows that where a female, passenger on a railroad-train was carried beyond her station, and the train stopped near the next station, and the passenger walked at night and without escort through the town to the house of a friend in that town, she should not be allowed to show that she was frightened by hearing loud voices of negro men who were walking behind her, unless it is also made to appear that the locality was one in which such occasion for fright was likely to occur and that the railroad company had notice of this [italics ours].” Wh ether alleged negligence is the proximate cause of an injury is generally a question for the jury, but where the undisputed evidence clearly shows that the injury complained of was not the natural or proximate result of the defendant’s conduct, negligence, or breach of duty, but resulted through an intervening agency, not invoked or brought into play by the defendant, no recovery would be authorized on this ground.

In the case of Central of Georgia Ry. Co. v. Price, 106 Ga. 176 (32 S. E. 77, 43 L. R. A. 402, 71 Am. St. R. 246), it was held: “Where, through the negligence of the conductor of a railway company, a passenger on its cars has been carried beyond the point of her destination, such conductor, in the absence of express authority so to do, can not constitute the proprietor of a hotel, who is entirely unconnected with the company, its agent for the purpose of providing safe and comfortable lodgings for the passenger until she can return on the company’s train to her destination. It follows, therefore, that the company is not liable for any injuries or damage such passenger may have sustained while at the hotel, in consequence of any negligence on the part of its proprietor.” That case on its facts is closely akin to the case under consideration, so far as relates to the contention that the conduct of Darden was a proximate result of the breach of the contract of carriage on the part of the railroad company for which a recovery was authorized. The Supreme Court there held, that while a conductor on a passenger-train of a railway company was the agent of the company and the company was bound by all of his acts within the scope of his employment, his business was to superintend the running of the train and to look after the comfort and safety of the passengers, and “do such other work, in and about the running of the train, as is imposed upon him by the rules of the company or by law;” but, “being only an agent, he had no authority, without express power conferred by the company, to appoint a sub-agent. He could not delegate to another, an agent of his own appointment, the powers conferred upon him. Civil Code [of 1895], § 2999 [Civil Code of 1910, § 3571]. It was not within the scope of his business to constitute the proprietor of a hotel the agent of the company for the purpose of taking care of the plaintiff during the night.” In that case the Supreme Court said it was argued (as it was in this case) that “Whether or not the proprietor of the hotel was the agent of the company, the contract of.carriage was not completed, and it was the duty of the company, by its agents, safely to care for the passenger until they had delivered her at her destination.” As to this the court said: “Admitting, for-the sake of the argument, that this is true, we still think that the company would not be liable for the consequences of the landlord’s negligence. -The negligence of the company consisted in passing the station where the passenger desired to alight, without giving her an opportunity to get off. Taking her version of the manner in which she was injured, the injury was occasioned by the negligence of the proprietor of the hotel or his servants in giving her a defective lamp. The negligence' of the company in passing her station was, therefore, not the natural and proximate cause of her injury. There was the interposition of a separate, independent agency, the negligence of the proprietor of the hotel, over whom, as we have shown, the railroad company neither had nor exercised any control.”

The decision in that case likewise definitely holds that a conductor entrusted with the running of a train and with the duty of earing for the passengers thereon is without authority to engage subagents to care for such passengers when no longer upon his train. It is alleged in the petition in this case that an employee of the defendant, other than the conductor, at his instance and request engaged the driver who conveyed the plaintiff to her home ; and evidence was introduced to show that the driver, Darden, was in fact engaged by another' employee or “agent” of the company, who possessed authority to bind the company, and that this agent had knowledge, at the time he contracted with Darden, that the latter was a man of no character, was then drinking or drunk, and had actually received whisky at the station where this agent was employed on that very day, with the constructive knowledge, at least, of said employee. While it may be true that an agent of the defendant, actually in charge of its station, and burdened with the responsibility in some measure of caring for passengers there leaving its trains or taking passage thereon, might have authority ■under some circumstances to bind the railroad company by contracts made in an effort to provide for the safety and comfort of such passengers, in our opinion the positive, uneontradicted evidence, in "this case shows that Broadwater, the person who engaged Darden to convey the plaintiff to her home, was not in fact such an agent of the defendant at Kingston, nor was he (so far as is disclosed by the evidence) in charge of the depot, waiting-room, etc., or specially authorized or empowered to look after passengers or care for their comfort and safety at that point, but was merely a night telegraph operator, who happened to be idling at the depot, and was not even on duty when he contracted with Darden. Mrs. Jackson said that “this man that stayed at the depot” put her in charge of Darden; and, while she stated further on that the “depot agent,” helped her into the buggy, she added “that was the telegraph operator, the man that worked around there at the depot.” Darden testified that Broadwater was the “night operator at Kingston,” and, while Adams, the conductor, said that he arranged with “the young man that worked there” to have the plaintiff conveyed to her home, Broadwater himself said positively that he “worked there” as telegraph operator and went on duty as such operator “at 11 o’clock at night.” It is apparent, therefore, that under this proof Broadwater was not an agent in general charge of the station 'at Kingston, and in fact there was other testimony that one Cliff was the depot agent there, and certainly it can not be assumed that the “night operator,” in charge of the telegraph instrument and upon whom perhaps devolved some other minor duties, was such an agent of the defendant company as, in the absence of proof of any special powers, would be invested with broader authority than the conductor to employ a subagent for the company, or that he would himself be acting within the scope of his employment in taking charge of the continued transportation of a passenger by private conveyance from the station where he worked to her home in the country, or was even necessarily authorized to make arrangements for the comfort and safety of passengers at the station itself, where his ordi- .. nary work of an entirely different character was to be performed. The rule laid down in the Price case, supra, that a conductor would have no authority to employ a subagent, to act for the railroad company in caring for a passenger, would certainly apply equally to a telegraph operator in the service of such company. It is therefore clear that no recovery for the acts or conduct of Darden could be had against the defendant on the theory that he was a duly empowered agent of the defendant; and, as was held in that case, the negligence on the part of the company in passing her station was not the natural and proximate cause of her injury, for the injury was occasioned by. the interposition of a. separate, independent agency, to wit, the conduct of Darden, over whom the railroad company neither had nor exercised any control, and no recovery for the conduct of Darden would be authorized because of the breach of the contract of carriage, in failing to convey her in safety to her destination.

3. In Central of Georgia Ry. Co. v. Dorsey, supra, where a female passenger was carried beyond her station, ánd the train stopped near the next station, and the passenger walked at night and without escort through the town to the house of a friend, it was held: “She should not be allowed to show that she was frightened by hearing loud voices of negro men who were walking behind her, unless it is also made to appear that the locality was one in which such occasion for fright was likely to occur and that the railroad company had notice of this.” The uncontradicted evidence in the case under consideration entirely removes any suggestion of notice to the agent of the railroad company that'injury or danger might result to the plaintiff by placing her in Darden’s care, and therefore no recovery would be authorized, under the principle referred to in the above ruling of the Supreme Court, on account of a breach of the general duty resting upon the employees of the carrier to properly safeguard a passenger under their charge, or at all events not to deliberately place her in a position which they knew, or could have known by the exercise of proper care, was one from which wrong or injury to her might naturally be expected to result. If it be conceded that the proof as a whole might in any possible view have authorized the jury to infer that Broadwater was the agent in charge of the station at Kingston, and; though not authorized as such agent to employ a subagent, for and in béhalf of his company, to convey a passenger from the station to her proper destination, under the precise circumstances of this case, that nevertheless the carrier would be liable for his acts in not only failing to provide for the safety of a passenger leaving one of its trains at his station, but in deliberately and with knowledge- (actual or potential) placing her in a position where it might reasonably and naturally be expected she would be subjected to insults or even to personal danger, there is no evidence in the record to authorize a finding that he was in any degree negligent, in that he failed to exercise ordinary or even extraordinary care in engaging Darden to convey the plaintiff to her home, or in failing to anticipate and guard against what followed. The undisputed evidence of several witnesses was that Darden was a young man of hitherto unblemished reputation, generally polite to ladies, and not a drunkard, or even, in common parlance, “a drinking man,” though some witnesses other than the night operator testified he sometimes took a drink, and he himself admitted that upon this particular occasion he had imbibed three “moderate” drinks 'during the afternoon, between 5:30 and 7:30 p. m., or within an hour or so of the time when he. undertook to convey the plaintiff to her home.

It is true there was testimony that a shipment of liquor came to Kingston that very day on an earlier train of the defendant, which was addressed to Darden, but it was not shown that Darden himself actually received this shipment that day, and Broadwater was not the express agent and had no actual or constructive knowledge of this fact. Broadwater not only asserted that he was unaware that Darden ever drank at all, but said that Darden appeared perfectly sober when he engaged him, and he detected at that time no odor of whisky upon or about his person, and saw nothing whatever in his appearance or conduct to arouse the suspicion that he was not his usual self. Furthermore, as demonstrating his extraordinary care in selecting one he believed and had reason to believe was a proper person, he said he had himself known Darden personally for a long time, and had always considered him as reputable and decent a young man, “or as nice a boy,” as there was in the community. He not only did not carelessly entrust the plaintiff to a stranger or to one of doubtful reputation or antecedents, but-sought out and procured a man whom he had known for many years and had every reason to believe from his general reputation was a man of established good character. No witness asserted any fact whatever, which was shown to be within the knowledge of Broadwater at any time prior to his employment of Darden, that could have possibly put him on notice that Darden was by nature or character an unfit person, or was at the time in an unfit condition to safely and respectfully convey an old lady a distance of two miles from the station, through a little town and along a public highway traversing a thickly settled country, early in the evening, when the shades of night had barely descended and the presence of other travelers along the same road might reasonably be expected. v

It is true that Mrs. Jackson said she smelt whisky on Darden while on the way, and her husband likewise said that he noticed the same odor on or about him after the plaintiff reached her home and entered the house, when he himself came quite close to Darden or “walked right up against the wheels of the buggy” in which Darden was sitting. -However, the fact that an odor of whisky emanated from Darden on the road, or after he reached the home of the plaintiff, does not necessarily show that any odor of that character hung around him or was discoverable to even the keenest olfactory nerves at the time Broadwater engaged him as a 'driver, or that he was then in the slightest degree perceptibly under the influence of liquor. Even the plaintiff failed to detect any such odor until some minutes after she had been seated by his side in the huggy, and both she and her husband may have come into much closer proximity to Darden than did Broadwater, and we can not hold as a matter of law that the exercise of even extraordinary diligence on the part of the latter would have required him to sniff Darden’s breath at close range, to determine whether there might perchance be some alcoholic stimulant in his stomach, before putting the plaintiff in his charge. He testified positively that he did not know Darden ever drank, that Darden showed no signs of intoxication and appeared to be his usual self, and, in the absence of anything to the contrary, there is nothing from which it may be inferred that he was guilty of negligence in selecting Darden and entrusting the plaintiff to his care. Though Mrs. Jackson declared that Darden was under the influence of whisky while on the way from Kingston to her home (as already stated), she did not discover that he had ¡been drinking at all until after she was seated in the buggy with him, and they had proceeded “about half through the town,” when she noticed a very strong odor of whisky. And on cross-examination she further said: “I didn’t pay no attention to smelling whisky on him until after I got in the buggy and going on down the road just passing stores out there at the far end of the stores when I first noticed it, and it was just after that when he made the improper proposals to me.” In fact there is nothing in her testimony, apart from the odor of whisky (which she failed to discover until she had been seated in the buggy with him for a considerable time) to indicate or even suggest to her that Darden was either drunk or drinking, until he grossly insulted her, and no previous language or conduct on his part is shown by her testimony, or by the testimony of any •other witness, that could apparently have indicated to Broads water, or to any other observer that he was either drunk or had been drinking.

There was nothing to put Broadwater on notice that Darden was not entirely sober and rational, and therefore not a safe person to whom the plaintiff could be entrusted; and there was nothing shown which could reasonably lead him to anticipate that Darden, sober and clothed in his right mind, so far as Broadwater did or could discover, would gratuitously insult an elderly woman placed .in his care, whom he had never seen or heard of before, during a short drive of two miles, on a public highway and through a well nettled country, where a call for assistance would probably bring a ready response at any point along'the way. The testimony shows that the plaintiff was more than 60 'years-of age at the time, and .had borne 13 children, 11 of whom were still living and one of whom was over 40 years of age;‘ and that Darden was only 21 .years old, had always borne an excellent reputation in the community in which he lived, and this reputation was known to Broadwater. Certainly Broadwater could not have even imagined under these circumstances that such a man, hardly more than a .boy, whom he had no reason to suspect was otherwise than sober and rational at the time, would propose sexual intercourse with a woman old enough to be his grandmother, and who was in fact a grandmother, whom he had never seen or heard of before. The thing was unnatural, and certainly it is unbelievable that a boy of his previous good reputation could have been guilty of so foul an outrage against decency and womanhood, or could show so little respect for age, unless he was altogether distraught and wholly unbalanced at the-time from the effects of some powerful drug or maddening intoxicant. This is especially so when it is recalled that after he had repeatedly insulted the plaintiff, and she had clearly indicated her extreme displeasure on that account, he nevertheless accompanied her to her very home itself, and that when she left his buggy and 'entered her house he.actually remained of his own volition in the presence of her husband, and engaged in conversation with him, and only departed when ordered by her son-in-law to leave. He must have been temporarily insane from drink to venture within reach of the plaintiff’s husband and to tarry unnecessarily in his presence and engage him in conversation, after what had immediately preceded, and yet neither the plaintiff, nor her husband, nor her son-in-law, Couch, testified that his movements or conversation after he reached the home of the plaintiff indicated that he was intoxicated or mentally unbalanced, and in fact the plaintiff’s husband did not testify that he observed anything whatever that might indicate that Darden had been indulging in intoxicants to any extent, except the odor of whisky about his person. It is therefore easy to understand why Broad-water could not observe anything in Darden’s conduct a half hour earlier to put him on notice that Darden was then drunk or drinking or mentally unbalanced. The- jury found that Darden insulted the plaintiff as she alleged, and his extraordinary conduct can only be rationally explained on the theory that his reason was temporarily unsettled from intoxicants (of which however Broadwater had no knowledge); and since nothing appears from his general reputation that would have put Broadwater on notice that he was not otherwise a fit person, and he had no knowledge or reason to suspect that Darden was drinking or drunk, it follows that there was nothing to authorize the inference of negligence on his part in entrusting the plaintiff to the care of Darden, or that for this reason the defendant should be- mulcted in damages.

3. No general demurrer to the plaintiff’s petition .was interposed, as nominal damages were of course recoverable on the part of the plaintiff for the breach by the defendant of its contract of carriage. Except as passed upon generally in the two preceding divisions of this opinion, it is unnecessary to deal with questions presented by the demurrers interposed. Under our view of this ease, it is likewise unnecessary to consider or discuss the various special grounds of the motion for a new trial, not covered in effect by the foregoing opinion. A verdict for $1,000 can not be sustained as merely nominal damages; and since there was no evidence to authorize this verdict, the trial judge erred in overruling the motion for a new trial.

Judgment reversed.

George, J., concurs. Luke, J., dissents.