
    PUTNAM against THE BROADWAY, &c., RAILROAD COMPANY.
    
      Court of Appeals,
    
    1873
    Cause of Action. —Railroad Companies. —Assault on Passenger.—Liability of Corporation.
    A railroad company is not liable in damages for a wanton and unprovoked injury to a passenger committed by a fellow passenger, unless it be shown that the servants of the company knew that the wrong-doer was an unsafe or dangerous man, and that there was reason to apprehend his injuring other passengers.
    Mere intoxication is not sufficient to make it the duty of a conductor to expel a passenger from a public conveyance.
    The fact that the blow causing the injury was struck with a car hook belonging to the car is not sufficient to render the company liable, without proof of negligence or wrong on the part of the servants and agents of the company.
    Ellen L. Putnam, as administratrix of her deceased husband, brought this action in the New York superior court to recover of defendants the damages sustained by the death of her husband. The deceased was riding in defendants’ horse car, in the city of New York, in the evening, having two ladies under his escort. One Foster, who was intoxicated, mounted the platform of the car, and, after remaining there a short time, entered the car, and there insulted the ladies who were under protection of the deceased. Deceased, thereupon, appealed to the conductor. The conductor directed Foster to sit down and be quiet. This he did for a short time, but then went out upon the front platform, while the car continued on its route. When the car stopped, and the deceased, with his companions, alighted, Foster seized the iron car hook upon the platform, and, dismounting from the car, ran to the rear end, where deceased was standing upon the ground, and Foster there struck him. the fatal blow.
    
      The superior eourt held that the company were liable, under these circumstances, for the death of their, passenger, and gave judgment for the plaintiff. • Defendants appealed.
    
      John M. Scribner, Jr., for appellant.
    
      John E. Parsons, for respondent.
   Allen, J.

The questions presented upon this appeal are founded upon exceptions to the refusal to non, suit the plaintiff at the. close of the trial.

If the evidence, upon any view that can be taken of it, entitled the plaintiff to a verdict, the judgment must be affirmed. The case was submitted to the jury with great fairness, and with accurate instructions as to the law, if there was, in truth, any evidence of any neglect of duty, or want of care on the part of the servants and agents of the defendant, to which the injury to, and death of, the plaintiff’s intestate could legally be attributed.

The cases bearing upon the liability of railway companies, and other carriers of human beings as passengers for hire, for. any defect in their roadways, carriages, and other vehicles for transportation, any neglect or want of care by themselves, their agents or servants, in the performance of the service. undertaken, and for injuries caused by, or resulting directly from, the acts of the carrier or his servants, either to the passenger . or third person, may be laid out of view, except as they serve to indicate the stringency and extent of the liability imposed by law upon carriers, and the extreme care and diligence required of them, in all that concerns their own acts, and the agencies and means employed by them.

The acts, neglects, and omissions complained of here, upon which, the action is based, do not come within either class of cases referred to. The passenger was carried in a safe and proper manner, and there is no complaint of injury from any defect in the means of conveyance, or any act or omission of duty on the part of the servants of the company in respect to the plaintiff’s intestate personally. The wrong and injury complained of is the wanton and unprovoked, as well as unlooked for, attack of a fellow passenger, resulting in the death of the individual assailed, and the defendant is sought to be charged for the resulting damages on •the ground that the servants and agents of the company in charge of the car negligently and improperly omitted to exercise the police power with which they are invested for the protection of well disposed and peaceable passengers. There is no such privity between a railway company and a passenger as to make it liable for the wrongful acts of the passenger upon any principle (Pittsburgh, F. W. & C. R. R. Co. v. Hinds, 53 Penn. St., 512).

But a railroad company has the power of refusing to receive as a passenger, orto expel, any one who is drunk, disorderly, or riotous, or who so demeans himself as to endanger the safety, or interfere with the reasonable comfort and convenience of the other passengers, and may exert all necessary power and means to eject from the cars any one so imperiling the safety of, or annoying, others ; and this police power the conductor, or other servant of the company in charge of the car or train, is bound to exercise, with all the means he can command, whenever occasion requires. If this duty is neglected without good cause, and a passenger receives injury which might have been reasonably anticipated, or naturally expected from one who is improperly received, or permitted to continue as a passenger, the carrier is responsible (Pittsburgh, F. W. & C. R. Co. v. Hinds, supra; Flint v.Norwich and N. Y. Transp. Co., 34 Conn. 554; 6 Blatchf. 158).

In the case first cited a passenger was seriously injured by a large body of drunken and riotous persons, who came upon the train in defiance of the conductor in charge, and the court held that upon the evidence in that case, the only question which should have been submitted to the jury, was whether the conductor did all he could to quell the riot, and eject the rioters, and that if he did not the company were liable. The judge at nisi prius having submitted other questions, 'to wit: whether the conductor allowed improper persons on the. train, and whether he allowed more persons on the train than was proper, a verdict for the plaintiff was set aside, and a venire de novo ordered. In the other case, the action was for an injury received by the plaintiff, a passenger on the defendant’s steamboat, from the falling and consequent discharge of a loaded musket, by one of a great numbér of riotous and drunken soldiers engaged in an affray, and occupying a part of the boat assigned to passengers, the plaintiff, being suffered to enter the boat and pass to this part of it without any warning from the officers of the boat, or others, of the presence of these soldiers, and the defendants making no effort to preserve the peace, or remove the offenders. Upon conflicting evidence the jury found for the plaintiff. Judge Shipmaw, in his charge to the jury, instructed them that “the defendants were bound to exercise the utmost vigilance in maintaining order, and guarding the passengers against violence from whatever source arising, which might reasonably be anticipated, or naturally be expected to occur in view of all the circumstances, and the number and character of the persons on board.”

This, as a rule of duty and liability, is in strict analogy to, and consistent with, the rules by which the liability of common carriers of persons- for hire is determined in other cases, and seems to be well expressed and properly limited. It may be conceded that Foster, the individual who inflicted the injury resulting in.the death of the plaintiff’s intestate, was drank when, he came on the car; but so long as he remained quietly by the driver on the. platform, neither entering the car nor molesting nor annoying the passengers in any way, there was no occasion for removing him, and the conductor would not have been justified in refusing to permit him to remain as a passenger. The fact that an individual may have drunk to excess, will not in every case justify his expulsion from a public conveyance.

It is rather the degree of intoxication and its effect upon the individual, and the fact that by reason of the intoxicatibn he is dangerous or annoying to the other passengers, that gives the right and imposes the duty of expulsion.

While Foster remained on the platform of the car, neither interfering with nor noticing the other passengers, there was nothing to indicate to the conductor that his presence was offensive to the passengers, or that there was danger of harm to any one from him.

There was, during that time, no occasion, and would have been no propriety in causing his removal from the car. He did, however, thereafter make himself peculiarly obnoxious to the other passengers, and, by his conduct and demeanor, grossly insult and annoy them, and gave occasion for the exercise of the power of removal, had the conductor seen fit or been called upon to exercise it; and had he continued his annoying practices, the conductor would have been faithless to Ms duty had he suffered him to remain on the car.

After Foster came into the car and insulted and intimidated the females under the protection of the deceased, the latter appealed to the conductor not to exclude Foster from the car, but to make him be quiet, and the conductor directed him to sit down and be quiet; and he did thereupon take a seat on the opposite side of the car from the females and near the deceased, and after remaining there a short time, left the car and took his place on the front platform, the front door of the car being closed, and during the residue of the passage to Forty-sixth-street gave no occasion of complaint so far as appears. He was, during that time, peaceable and inoffensive. During the latter part of the ride there was no occasion for removing him from the car, unless the occasion and a necessity for such, removal was furnished by his previous conduct, showing that he was a dangerous or improper person to remain. He had ceased to address or in any way insult or annoy the females upon being requested by the conductor to sit down and be quiet; and his ready compliance with that request, and his taking his place so soon thereafter on the platform and proceeding quietly and peaceably on his journey, was some evidence that there was no reason to apprehend a renewal of his insults in that direction, and justified the conductor in at least giving Mm the benefit of a further probation. This was precisely in accord with the suggestion of the deceased, neither he nor the conductor apprehending any serious harm or injury, certainly not a wanton and murderous attack upon anyone with a dangerous weapon. It is true that on taking his seat he did not observe the strictest rules of propriety, and by putting his feet on the seat, violated good taste and good manners, but it was not an offense of which the passengers could very seriously complain, or which essentially violated their rights, so long as there was abundant room for all, and there was no indecency in the position. This breach of good manners certainly did not tend to show that he was a dangerous man, and was condoned by his subsequent withdrawal from the seat, and the body of the car entirely. It is also in evidence that while seated near the deceased he directed abusive language to him and made threats indicating an intent to do him some bodily harm before he left the car. But all this was in an undertone, and so far as appears was unheard by the conductor occupying his proper place on the rear platform, and neither the deceased or anyone else called the attention of the conductor to it. It was probably treated with indifference by the deceased and all who heard it, and regarded as the maudlin and senseless gabble of a drunken man, unworthy of notice, and incapable of creating any appre- . tension of danger or harm. But be this as it may, there is no evidence to justify an inference that the conductor did hear or could have heard or known of the abuse or threats, so that to him they were not evidence that he was an unsafe and dangerous man, or that * there was any reason to apprehend injury to the other passengers from him or Ms acts. The conductor was only called upon to act upon improprieties or offenses witnessed by Mm or made known to Mm in some other way, and the defendants can only be charged for neglect of some duty arising from circumstances of which the conductor was cognizant or of which he ought in the discharge of his duties to have been cognizant.

There was no evidence tending to show that the conductor was in fault for not removing the person of Foster from the oar. He exerted his police powers by causing him to desist from Ms offensive acts and approaches towards the’females, and supposed he had done all that was necessary to preserve the peace and keep good order upon the car, and to secure the other passengers against further annoyance, as well as all that the deceased asked him to do. If the peace could be preserved, and the quietness and comfort of the passengers could be secured, as he supposed he had done, without the expulsion of the offender, the conductor could hardly have been called upon to proceed to extremities and put the latter from the car by force. An unnecessary resort tó force in ejecting a passenger from the car might have given the passengers, male as well as female, more pain and annoyance than would the mere presence of a drunken man, and possibly might have seriously imperiled their persons. There was no evidence of any neglect of duty on the part of the conductor in omitting to remove the person of Foster from the car, and whatever may be the duties or powers of the driver, otherwise than in subjection to the conductor, there is no evidence that he had any notice or knowledge of any impropriety of conduct or threatening language on the part of Foster, except as he must have witnessed what passed before Foster entered the car.

There is no evidence that he had knowledge of what transpired within the car, and after Foster’s return to the platform, there was nothing, so far as appears, to excite alarm, or create apprehension of danger or disturbance or annoyance of' any kind.

There was an entire absence of evidence of any connection or complicity of the driver with Foster, or that the driver was responsible for the possession by the latter of the iron instrument with which the blows were inflicted that caused the death of Putnam. There was no proof from whence or of whom Foster obtained it, and none to show that the driver either acquiesced or assented to the taking of it by Foster, or that he knew that Foster, had it. There was no evidence of negligence or omission of duty, or want of proper care and vigilance on the part of the servants and agents of the company in preserving order and keeping the peace on the cars, and protecting the passengers, to be submitted to the jury, most certainly none connected with the attack upon and death of the intestate, or to which it can be legally or logically traced.

The rule cannot be better or more concisely expressed than as stated by Judge Shipmax, in Flint v. Norwich & N. Y. Transportation Co. That for any neglect or omission of duty in the preservation of order and the removal of dangerous and offensive persons by the owner of a public conveyance for the transportation of passengers, or his servants or agents, the carrier is liable for any injury to other passengers which might reasonably he anticipated or naturally he expected to occur in view of all the circumstances and of the number and character of the persons on board. It does not follow and cannot he presumed that because a man is drunk and is in that condition offensive to others, as well by his demeanor as in his appearance, that he is a dangerous man, and that his presence imperils the safety of others; that because, he is drunk he may violently assault or murder others without provocation.

If there was anything in the condition,, conduct, appearance or manner of Foster, from which the jury could reasonably infer that there was reason to expect or anticipate an attack upon the deceased or any other passenger, either while upon the car or in the act of leaving,. the facts authorizing such inference should have been proved, and knowledge of them brought home to the conductor.

The injury to, and death of Mr. Putnam was immediately and directly caused by the murderous attack of Foster, and the carriage of the murderer by the defendant had no connection with and did not cause the act or directly contribute to it.

It is said in McGrew v. Stone, 53 Penn. St., 436, that the general rule is, that a man is answerable for the consequences of a fault which are natural and probable ; but if this fault happen to concur with something extraordinary and not likely to be foreseen, he will not be answerable.

Ch. J. Bovill, in Sharp v. Powell, L. R., 7 C. P. 258, uses this language: “ Yo doubt, one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom ; but, generally speaking, he is not liable for damage which is not the natural or ordinary consequence of such an act, unless it be shown that he knows, or has reasonable means of knowing, that consequences not usually resulting from-the act, are, by reason of some existing cause, likely to intervene, so as to occasion damage to a third person.” The law ordinarily looks only to the proximate cause of an injury in holding the wrongdoer liable to an action, and if the damage is not the probable consequence of a wrongful act, it is not the proximate cause so as to make the wrong-doer liable (See Marsden v. The City and County Assurance Co., L. R., 1 C. P. 232; Bigelow v. Reed, 51 Maine, 325 ; R. R. & Co. v. Reeves, 10 Wallace, 191). This is the rule in cases of tort,' when the conduct of the defendant cannot be. considered so morally wrong or grossly negligent as to give a right to vindictive or exemplary damages (Baldwin v. U. S. Tel. Co., 45 N. Y., 744; Bayle v. Brandon, 13 M. & W., 738). The assault by Poster upon the deceased could not have been foreseen, and it was not the reasonable or probable consequence of the omission of the conductor to eject him from the car; and upon principle, as well as upon authority, the injury was too remote to charge the defendant for the damages.

In Scott v. Shepherd, 2 W. Bl., 892; Guille v. Swan, 19 Johns., 381, and Vandenburgh y. Truax, 4 Den., 464, the injuries were held to be the natural and direct result of the conduct of the party charged, although he did not intend the particular injury which followed. There was no evidence to carry the case to the jury, and the motion for a nonsuit should have been granted.

The judgment must be reversed and a new tria] granted.

All the judges concurred.

Judgment accordingly.  