
    ASSAULT BY A CONDUCTOR. UPON A PASSENGER..
    Circuit Court of Richland County.
    B. & O. Ry. Co. v. William Reed.
    Decided, 1909.
    
      Torts — Assault upon a Passenger by a Railway Conductor is Within the Scope of His Authority, When — Company Liable for Punitive as Well as Actual Damages — Master and Servant — Charge of Court —Error—-Purpose of Sections SJ/3S and SJfiJf.
    
    A different rule applies to assault by a conductor of a railway train upon a passenger in transit upon his train, than to ordinary cases of injuries inflicted by servants acting in other capacities; and where a conductor makes an assault upon a passenger whose conduct is peaceable and who is not violating any of the rules of the company, he must be held 'to have acted within the scope of his authority and to have rendered the company liable for punitive as well as actual damages.
    
      Cummings, McBride & Wolfe and F. A. Durban, for plaintiff in error.
    
      Douglass & Mengert, contra.
    Donahue, J.; Taggart, J., and Voorhees, J., concur.
   This proceeding in error is brought to reverse the .-judgment of the common pleas court in an action brought by William Reed against the Baltimore & Ohio Railway Company for damages inflicted upon his person by the conductor of one of the railway company’s trains, while he was en route as passenger on. said train from one station to another, and for delaying him in his journey and compelling him to leave his car against bis will before the termination of his journey. The trial in the common pleas court resulted in a verdict for Reed; the motion for new trial was overruled and judgment entered upon the verdict.

The plaintiff in error contends that there was error in the admission of evidence of William Reed as to what occurred at Chicago Junction, but looking to the petition we find that it not only charges damages for 'the injuries received in the assault which he claims the conductor made upa» him,.but algo'for. being compelled to leave the train at that point. So that we think that evidence was pertinent to the issue and was properly admitted.

It is also contended that there was error committed by the trial court in permitting the plaintiff’s wife to testify as to what plaintiff was going to do with the pocket-book. Turning to page 45 of the record, we find -the following:

• , /‘-Q. What was he going to do with it ? A. Why, gi-ye it to the-conductor. ” . ■ •

To which question defendant objected and moved that, thq answer be excluded, which objection and motion the court sustained and instructed the jury not to consider the answer..

“Q. Do you know where he went to putting the pocket-book in his pocket ? A. Pie told me he was going —•
'“Court: You must not testify to anything he'may have said to you. The jury will not consider the answer.”

It is apparent that this evidence was not admitted and that this, contention of the plaintiff in error is not sustained by the record. . -

The next contention, and a more, serious, one, is that the charge of the court is erroneous. It is claimed that;'it violates the doctrines announced in the 72d O. S., 586, but with that contention we dp.not agree. In fact, .we think the only serious question raised upon .this charge, is in reference to that part of it wherein ..the-court charges as follows:

“An obligation rested on the- defendant on'the -24th day of .March, 1906, being then and there a common carrier -.of passengers, to carry the plaintiff, if he was then a.passenger on s-aid train, safely and promptly from the city of-Mansfield, Ohio, to his destination on this road, and if the defendant entrusted this duty to servants, the law holds the defendant responsible' for the manner in which it executes it. A carrier is bound to protect its passengers from violence from, its own servants in charge of its trains while.in transit.”

If that portion of the charge is correct, then there was no errbr in refusing the special request of the plaintiff in error, nor' is the charge open to the other objection raised against it. We’- are pf the-opinion that a-'different rple applies to-assaults by a'’eonductor iu charge -of a train upon passengers in. transit''upon.their train, than in the ordinary case .of injuries inflicted.by. servants in other capacities. That is to say, as a matter of .law,', it 4s-a part of the duty of that conductor, who is a servant, of the'Company, to carry out the contract made.by the'compauy with the passenger to carry the passenger tó his destination and to protect him as far as possible -from injuries,'either from'accidents or assaults froin other passengers or -.from servants upon the train. :

In Voorhees on the Measure of Damages and Personal Injuries, at 13101, this doctrine is announced:

“It is among the implied provisions of the contract between •the passenger and the railroad company that the latter has -’employed suitable servants;to run. its trains,.and .that passengers shall receive proper treatment from them, and a violation of .this implied-duty and contract is actionable iu favor of the person,injured by this breach, although the 'act of the servant' Was will-full and malicious, as' for malicious assault upon 'a passenger, or by any óf the'train hands, whether in the line of his: Employment or not. The duty of a carrier towards a passenger 'is contractual, and among the implied obligations, is that of protecting the passenger’ from insults or assaults from other passengers or by their own servants.” •' ’

. In support of that doctrine the author cites a great many-aur thorities and in the foot notes copies very largely from, those authorities and, xtnless the law in this respect be different in Ohio than in other states, we think the doctrine is correctly stated .in the text. - - . •

The Legislature of this state seems to have recognized this duty of the railroad company and in aid and’ furtherance of the company in performing that duty, have conferred police powers upon the conductor. Section 3433 of the Revised Statutes of Ohio invests conductors of steam and mterurban railroad companies with powers, duties -and responsibilities of police officers while, on duty on their train and authorizes such conductors to wear the badge of a special policeman. Section 3434' authorizes them to eject any passenger guilty, of disorderly conduct or of any .obscene language, .etc..

We. think the provisions of these statutes were- not solely for .the .purpose, cff ..enabling;,the railroad companies,to protect:-.their property, but also for the purpose of enabling them to protect passengers from assaults of fellow passengers or from the servants of the road, and in other respects to preserve and secure the peace, safety and convenience- of passengers. And if a conductor, while in charge of his train, makes an assault upon a passenger who is then in the peace of the state and not violating any rule of the company, as a matter of law, he would be held to be acting within the scope of his authority and the master would be liable.

It is also insisted that punitive damages can not be allowed in this character of cases, and that the charge in that behalf is erroneous. In the ease of Telegraph Company v. Smith, 64 O. S., page 117, the court quotes with-approval the following:

' ‘ That a corporation may be subjected to exemplary or punitive damages for tortuous acts of its agents and servants done within the scope of their employment in all cases where natural persons acting for themselves, if guilty of like tortuous acts, would be liable for such tortuous damages. ’ ’

We are of the opinion that there is no prejudicial error apparent upon this record and, therefore, the judgment of the common pleas court is affirmed with costs but without penalty. Exceptions of plaintiff in error .noted and ease remanded for execution.  