
    ELLEN L. PUTNAM, Administratix, etc., Plaintiff and Respondent v. THE BROADWAY AND SEVENTH AVENUE RAILROAD COMPANY, Dependant and Appellant.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.
    
      Decided June 28, 1873.
    
      A common carrier is liable for injuries sustained by his passengers and caused by his negligence, or that of his agents and servants.
    The duty of the carrier is not only to guard and protect each passenger from violence and assault, of its own agents, servants, and employes: but also from the assaults and violence of other passengers carried in the same conveyance, and from other causes of discomfort and injury which could have been reasonably anticipated and prevented.
    The, law demands of a carrier of passengers, the utmost skill and care which prudent men are accustomed to use, under similar circumstances, to secure the comfort, and safety of their passengers, and the absence of such sMU a/nd care is negligence.
    
    The right and the duty of carriers of passengers to remove or control disorderly persons is an incident to their proprietorship of the car or vehicle of the business they were conducting, and the responsibility they assume and take in such business for the safety and comfort of their passengers.
    The right and duty to expel are correlative, and its omission in the case at bar was a culpable breach of a positive duty.
    It was negligence, and for its legal consequences the carrier is liable.
    These principles applied to the case at bar, and the judgment of the court below affirmed.
    Babbotjb, Oh. J., dissenting.
    The facts developed upon the trial of this action are as follows:
    On the evening of April 26, 1871, Mr. A. D. Putnam, in company with Mrs. and Miss Duval, took a car of the defendants at Eighth Street, intending to go to a church in Forty-sixth Street. They took seats on the left-hand or westerly side of the car, towards the front—Mr. Putnam first, then Miss Duval, then her mother. Between. Fifteenth and Sixteenth Streets, Foster jumped on the front platform of the car. Nothing of note occurred till the car came within sight of the Grilsey Building, at the easterly corner of Broadway and Twenty-ninth Street, when Mr. Putnam called Miss Duval’s attention to the new clock in that building. Miss Duval tried to look at the clock from her seat, but it was too high, and Mr. Putnam said, “ G-o to the door and you can see it.” She went to the door, her mother crossing to the other side of the car. As Miss Duval looked through the window in the door, the driver turned round and placed his face at the window just even with hers, and then touched Foster who stood beside him. Foster pulled the door open and made an insulting gesture to Miss Duval. Mrs. Duval pulled her daughter back and quietly closed the door. Foster opened the door again ; again Mrs. Duval closed it, Foster opened it again, and again made use of the same insulting action. Again Mrs. Duval closed the door, when Foster threw the door wide open and stalked into the car. Mr. Putnam rose and said, ‘ ‘ What is the meaning of this ? these ladies are under my care, and I will not have them insulted.” He told Foster to come in and shut the door. Foster said, “ What right have you to say anything about it—what is it to you?” Foster stepped back to the front platform, and Mr. Putnam closed the door. Foster opened it, and Mr. Putnam closed the door two or three times. Mr. Putnam then went on the front platform and stood with his back to the door, the knob in his right hand. Foster said something about paying for his seat, and that he wanted it. Mr. Putnam said, certainly, he was welcome to have it, and pulled the door open without turning round, and backed into the car. Foster followed him.
    . The driver of the car saw a portion, at least, of this conduct on the part of Foster, but made no attempt to interfere. Mr. Putnam sat down on the left-hand side of the car, and Foster took a seat beside him, and turned so as to stretch his legs and feet along the seat, his feet toward Mr. Putnam; there were only four or five persons in the car, leaving most of the places unoccupied, so that the conductor could have removed Foster from the neighborhood of the Putnam party. He did not do so, and Mrs. Duval moved her daughter to her other side, when Foster said, “What is it to you?” Mrs. Duval replied, “You are very rude and impertinent.” It was quite obvious that Foster was in liquor. He commenced talking and swearing at Mr. Putnam, making faces and speaking roughly. Mr. Putnam paid no attention, simply saying, “When you get done talking, I suppose you will stop ; if I had thought you were in liquor, I should not have had anything to say to you,” and, Foster continuing his conduct, called the conductor and asked him if he could not make the man keep quiet.
    When Mr. Putnam called him, the conductor came in, and said to Foster, “ Sit down and be quiet.” The conductor did nothing further, and returned to the rear platform. Foster continued his rough and insulting conduct, ending by leaning over to Mr. Putnam, and saying to him, “How fa are you going up?” Mr. Putnam made no reply, an:. Foster continued, shaking his fist, “Well, I will go as far as you go, and before you leave the car I will give you hell.” There is no evidence that this was heard by either the conductor or the driver.
    Foster then returned to the front platform, leaving the door wide open; Mr. Putnam rose, and closed it. During all the occurrence the driver put his head through the front door from time to time to see what was going-on.
    Nothing further occurred until the car reached Forty-sixth Street, when Mr. Putnam asked the conductor to stop. He pulled the bell; Miss Duval got out first; Mr. Putnam followed her ; Mrs. Duval had not reached the door of the car. ' Mr. Putnam stood on the rear platform with one foot on the lower step and one on the ground, when Poster came from the front platform, and with something long, looking like iron, about the length of a car hook, struck Mr. Putnam twice over the head.. The conductor stood with the strap in one hand and one hand on the railing, waiting for Mrs. Duval to get out. Just as the blow was struck, Mrs. Duval heard Mr. Putnam say to the conductor, “Conductor, when you let disorderly people on the car you ought to know how to keep them quiet.” The blows so received by Putnam caused his death, and this action is brought by the executor and executrix of his estate to recover for the injury sustained by his next of kin by reason of his death.
    Upon the closing of the proofs, the defendants’ counsel asked the court to dismiss the complaint upon the following grounds:
    First.—(Because the plaintiff has failed to maintain or prove a cause of action, and for remoteness.
    Second.—The death of plaintiff’s intestate is not proved to have been caused by any wrongful act, neglect or default of the defendant, or any of its servants or agents, but by the criminal act of a third party.
    Third.—The circumstances of the killing of the said Avery D. Putnam were not such as would (if death had not ensued) have entitled him to maintain an action against the defendant.
    Fourth.—ISTo request was made by Mr. Putnam or any passenger that Foster should be ejected from the car.
    Fifth.—There is no proof of notice to the defendant or the persons in charge of the car, that Foster was a person whom the defendants had a right to exclude or expel from 'the car, or that he was in a condition from which violence or personal injury should have been anticipated.
    Sixth.—There is no proof showing that Foster’s condition or conduct were such, prior to the killing, as that the defendants were bound to remove him from the car.
    Seventh.—The proof shows that the injuries which occasioned the death of the said Putnam were sustained by him in the public highway after his journey had ended, and when both he and Foster had ceased to be passengers on the defendant’s car.
    Mghth.—There is no proof that if Foster was intoxicated or under the influence of liquor, that fact was brought to the notice of the defendant or its employes before he left the car.
    The motion to dismiss was denied, and the defendants excepted.. The jury rendered a verdict for the plaintiff of $5,000, and from the judgment entered thereon the defendant appealed.
    
      John M. Scribner, for appellant.
    
      Man and Parsons, for respondent.
   By the Court.—Van Vorst, J.

A common carrier of passengers is not liable for their safety to the same extent that he is for the safety of merchandise. He is not bound absolutely in every event, and under all circumstances, to insure the safety of his passengers.

But he is liable for injuries sustained by them through his own negligence, or that of his agents and servants.

The duty of the carrier is not only to guard each passenger from violence and assaults of its own agents and employes, but from the assaults and violence of other passengers carried in the same conveyance, and from other causes of discomfort or injury, which could have been reasonably anticipated and prevented (Sherby v. Billings, 8 Bush [Ky. R.] 147; Goddard v. The Grand Trunk Railway, 57 Maine R. 202 [2 Amer. Rep. 39.]; Flint v. The Norwich & New York Transportation Co., 34 Conn. 554; Pittsburg, Fort Wayne & Chicago R. R. Co. v. Hind, 7 Amer. Law Reg. 14 [N. S.] ).

The law demands of the carrier of passengers, the utmost skill and care which prudent men are accustomed to use under similar circumstances to secure the comfort and safety of their passengers, and the absence of such skill and care is negligence.

Nor will such care and skill be deemed unreasonable when it is considered that human safety is concerned.

Such being the measure of responsibility, carriers of passengers are required to have servants and agents in their service, competent, skilled, and experienced for their several employments. In no other way can they meet their responsibilities (2 Parsons on Contracts, 5th edition, vol. 2, p. 228).

At the time Putnam received the blows from Foster, which caused his death, the relation of pássenger and carrier between himself and defendant had not, as was urged by defendant’s counsel on the trial, ended.

The place, Forty-sixth street, had been reached, at which he had directed the conductor to stop for the discharge of himself and two females, a mother and young daughter, who were in his charge. The daughter had alighted, leaving her mother still in the car, but following her, and Putnam was standing with one foot on the ground, and the other on the step of the rear platform, his hand on the railing, in the act of aiding the mother to alight, when he was struck down in the presence of the conductor.

A passenger should have a reasonable time in which to leave the car, at the end of his route, with those in his charge.

In Brien v. Bennett (8 Cass. & P. 724), it was held that the relation of carrier and passenger was commenced when the plaintiff was putting his foot on the step of an omnibus which, had stopped on his signal, when he was injured by the act of the driver in going abruptly on. Much more would the relation once began, be not yet-ended, when a passenger in the act of alighting had but one foot on the ground.

The question presents itself, whether the defendants omitted any duties arising from the obligations which they had assumed with regard to the safety of Putnam, while he remained a passenger, or whether they were guilty of any negligence which contributed to his death.

Foster, when he was accepted as a passenger, was in a condition of gross intoxication. It appears that the car did not stop to receive him, but that he jumped on the front platform at Sixteenth Street, whilst it was in motion, and with a force so potent as to shake the car. He took his position near the driver, standing on the platform by his side. As he was in a condition of intoxication, he could have been refused as a passenger, and removed from the car. But the conductor, by after-wards receiving his fare, waived the manner of his intoxication upon the car, and accepted him as a passenger.

His rude and disorderly conduct, to be expected from his state of intoxication, commenced whilst he was standing by the side of the driver, when the car reached Twenty-ninth Street, and was of a nature to have called for his immediate ej ection. He grossly insulted by looks, acts, and speech, the mother and daughter under Putnam’s charge.

He violently, forcibly, and noisily opened and insisted on keeping open the front doer, which had been closed for the comfort of the passengers, it being in the night, and he remaining outside on the platform,' within a few feet of Putnam and the two females, one of whom was ill. Finally, entering the car, he seated himself near Putnam, with his body stretched upon the cushions, and Ms feet extended towards him. He offensively indulged in muttering speeches and fierce gesticulations, and finally uttered a distinct threat of injury to him, before Putnam should leave the car.

Whether the driver or conductor heard this specific threat, does not affirmatively appear.

But they were spoken in a tone of voice sufficiently loud to be heard by Mrs. Duval and her daughter, who were sitting on the opposite side of the car.

It was not necessary to have insured prompt action for his expulsion, that the driver and conductor should have heard this threat. Sufficient had before occurred within their sight and héaring to have demanded decided action. His intoxication, his insulting, disorderly, and menacing conduct, had called for his removal from the presence of passengers, whose comfort and safety were in jeopardy so long as he remained.

Beyond controversy, the defendant’s agents in the' car, had they been so disposed, had the right to have expelled him so soon as his condition was known or his disorderly conduct manifested.

This right to remove disorderly persons is an incident to the defendant’s proprietorship of the car, the business they were conducting, and the responsibility they were under for the safety of other passengers (People v. Cargl, 3 Parker, C. R. 326 ; Redfield on the law of Railroads vol. 2, p. 273, paragraph 5; fourth edition; Vinton v. Middlesex, Railroad Co., 11 Allen, 306).

The existence of this right of expulsion, and their obligations to the other passengers imposed upon the defendants the duty to expel. Under such conditions, the right and duty are correlative.

When a right is conferred, a relative duty is also imposed upon the party obliged. Putnam, as a passenger, had absolute right to protection against insult and inj ary from passengers admitted and tolerated by the defendants in their car.

And if such protection demanded, as it assuredly did, the expulsion of Foster, it was the duty of the defendants to have removed him promptly.

Their omission to do so was a culpable breach of a positive duty. It was negligence, and for its legal consequences the defendants are liable.

It can scarcely be questioned, upon principle or authority, that had Foster, at Forty-sixth Street, before leaving the car, inflicted the injury on Putnam, that the defendants would have been held responsible, as the consequences of their breach of duty and negligence. But the learned counsel for the defendant claimed on the trial, and in his argument on the appeal, that Foster, when he committed the injury, had also ceased to be a passenger, and that defendants were not liable for his acts committed thereafter.

But Putnam, as has already been observed, was still a passenger, and for his safety from injury, which, by the performance of their duty, the defendant could have secured, or for any damage to him, the result of their negligence, they were still liable.

Had Foster, instead of being carried by'defendants, under the circumstances of this case, casually or by design been at the spot without the defendants’ agency, and, under the,influence of passion, struck Putnam, no negligence or want of care being imputable to defendants, it might reasonably be urged that no liability would rest upon them.

It does not appear from the evidence that Foster had indicated either to the conductor or driver at what particular point he wished to stop. It may be inferred from his conduct, speech, and menace to Putnam at or about Twenty-ninth Street, that he had no specific objective point of* departure, but that he had determined in his mind to remain in the car and be carried at least as far as Putnam, and inflict upon him the injury which he had openly threatened before he should leave, or whilst in the act of leaving.

To the extent of carrying Foster, and enabling him to be in readiness to inflict the injury at the precise time Putnam should attempt to leave the car, the defendant aided the felon in his purpose. His prompt expulsion, on his first exhibition of rude behavior, would have' foiled his purpose and prevented the homicide.

If or does it appear that, when he left the front platform at Forty-sixth Street, and ran hurriedly along the side of the car to the rear to attack Putnam, he had finally terminated his relation as a passenger, ©r had indicated his intention then to do so. The end of the railroad route had not yet been reached, and his fare through had been paid. There is no evidence that he did not return. If he did not, however, the view is confirmed that he was travelling only to find a fitting moment to do effectually his work, or it may be that, having accomplished it, he feared to return and sought to escape. If instead of being under the influence of intoxicating drink, 'and rendered thereby rude, disorderly, and threatening, Foster had been a raving maniac unbound, voluntarily carried by the defendant, who, leaving the the car suddenly at some stoppage, and moved by some fancied wrong, attacked and severely wounded a passenger while in the act of leaving, it would seem that the defendant’s negligence in carrying a person in such condition would be a breach of duty to the other passengers, and render them liable for the injury. The learned counsel for the defendant earnestly contends that the death of Putnam was not the legal and natural consequence of the negligence imputed to the defendants.

The learned judge before whom the trial was had, in his charge to the jury, said: “The plaintiff, in order to maintain this action, is bound to show that the death of her husband was caused solely by some wrongful act, neglect or default of the defendants’ servants or agents ; ” and further: “If you come to the conclusion that there was negligence on the part of the defendants in not excluding this man, or in suffering this occurrence to transpire, and that this blow was a consequence or result of such neglect on the part of the defendants' or their servants, then it is for you to consider the amount of x damages, after satisfying yourselves that this injury, "by which the "deceased lost his life, was the result of negligence on the part of the defendants.”

The jury found a verdict for the plaintiff of five thousand dollars. We see no error in the charge of the judge ; no exception was taken, and the verdict of the jury establishes, and, as we think, correctly, both the negligence of the defendants and the killing of Putnam as its consequence.

The failure to remove Foster was not only a breach of duty on the defendants’ part to protect the passengers from the rudeness and violence of Foster, but was in itself a wrong,—a wrong to some extent aggravated by the fact that Foster stood on the front platform by the driver, and much of his disorderly conduct was committed in his presence without reproof or interference. The conductor, who was in sight, did nothing except on one occasion to say to Foster, “Sit down and be quiet.”

Heither of these men have been called as witnesses to give any account of the transaction, or any explanation or exculpation of their conduct, or failure to act promptly and efficiently in the premises.

The presumption is that no satisfactory excuse or reason in their justification, or even in palliation, could be offered.

In order to render the defendants liable for the death of Putnam, it is not necessary that their servants and agents should have either intended or expected that it would result from their failure to expel Foster, or that such result would be either the necessary or natural consequence of their negligence.

In Vandenburgh v. Truax (4 Denio, 467), Brown, C. J. says: “The injury which the plaintiff sustained was not the necessary consequence of the wrong done by the defendant, nor was it so in the case of the lighted squib in Scott v. Shepherd (2 W. Blade. 892). But in both instances the wrong was of such a nature, that it might very naturally result in an injury to some third person. It is true that the boy might have gone elsewhere instead of entering the plaintiff’s store, and it is equally true that Willis and Regall might have thrown the squib out of the market-house, which was open at both sides and at one end, instead of tossing it across the market-house among the people then assembled, and finally the proximate cause of the injury was in both cases an intelligent agent.”

In Leame v. Bray (3 East. Rep. 595), Lord Ellen-borough said: “ If I put in motion a dangerous thing, or if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue, I am answerable in trespass, and if we put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans.” See also Gruille v. Swan (19 John R. 382).

It is true that the injuries in the cases "last above cited, were the consequence of positive acts wrongfully or negligently done, but the rule as to the sequence of damage in such cases is the same as when the injury is the result of an omission to perform a positive duty. The. condition and conduct of Foster was such as would naturally, and according to the usual course of things, lead to further disorder, violence, or injury. His reason and judgment were disordered, and his passions aroused. Such conditions, according to human experience and observation, naturally lead to injurious consequences.

All that is necessary is, that the negligence and injury is concatenated as cause and effect to support the action, and that has been found by the jury to exist in this action.

The primary cause of the plaintiff’s injury in the loss of her husband, may be directly traced to the defendants themselves who entrusted the conduct of their business and the safety of their passengers to persons incompetent for the service, or regardless of their duty ; persons who were apparently indifferent alike to Foster’s disorderly conduct and Putnam’s safety, and who, either unmindful, or not properly considering the consequences, negligently failed to discharge a duty which, if performed, would doubtless have obviated the evil and prevented the homicide.

A careful examination of the case fails to disclose any error in the rulings and decisions of the judge on the trial, and the judgment appealed from should be affirmed with costs.

Monell, J., concurred.

Barbour, Ch. J. (dissenting).

The few general common-law rules touching the rights and obligations of carriers of persons and their passengers respectively, which were found necessary while the modes of carrying were restricted to sailing vessels upon the water, and wagons or stage-coaches on land, have not only become somewhat modified and greatly extended within the last half-century, but, as novel questions have arisen, it has been found necessary from time to time to establish new rules applicable only to particular classes of cases. For instance, it may now be considered as settled by numerous decisions, that carriers of passengers upon a railroad train, propelled by steam at a rapid rate of speed, are bound to exercise vigilance and care for the protection of their passengers, proportionate to the dangers to be guarded against, and that such carriers are required to exercise extraordinary care, vigilance, and caution, and not merely that ordinary care which carriers by coach were bound to exhibit. The principle of this rule of law is quite correct. The duty of the carrier is increased by the additional dangers to which his own method of transportation subjects his passengers, and the greater helplessness of the latter. So, too, carriers by steamboat must see that their machinery is sufficient, and in good order, and managed by competent and skilful men.

Our street cars are propelled by horses at a moderate rate, keep upon their own track, are readily stopped, even if the horses become fractious or unmanageable, and are less easily overturned than a stage coach. No extraordinary care, therefore, is required in their management to secure the safety of persons carried by them.

Again: As passengers on shipboard are without power to protect themselves against aggression and personal annoyance, except by such acts as would be a breach of the proper discipline there, and cannot leave the ship, it is no doubt the duty of the master, who has all the necessary power, to protect each passenger who is in danger of suffering a personal injury from assault by another ; and so, perhaps, and for a similar reason, as to carriers on railroad cars propelled by steam (See liegeman v. 'Western railway, 3 Kern. 9). But that rule, it appears to me, is no more applicable to carriers by our street cars, than it is to innkeepers or carriers by stage coaches. For street car passengers are by no means helpless, nor necessarily dependent for-their personal protection upon the carrier, as they can easily cause the car to be stopped and leave the same together with the annoyance, and, if they choose, take another car. Carriers of that class discharge their obligation to carry safely” when the passenger is so transported as to remain uninjured because of some act of negligence, or want of care on the part of the carrier in regard to the construction or management of the vehicle or means of propulsion used, or of some wrongful act on the part of the employés. A carrier cannot be bound to fight for the safety of a passenger, who may protect himself, with but slight inconvenience, by leaving the car. In these remarks I have spoken only of the duty of carriers in regard to the personal safely of their passengers. The question as to their duty to provide for and protect the comfort of such persons, is quite another matter, which in no wise concerns this case ; for, unless the plaintiff have established the fact that the defendants failed to perform their obligation to carry Mr. Putnam safely, including of course his descent from the car, there can be no recovery.

In this case, the evidence was sufficient to authorize a finding by the jury that Foster was intoxicated, and that he by a series of offensive and disgusting acts and remarks greatly insulted-and annoyed Mr. Putnam and the ladies under his charge, and that some, at least, of those offensive acts were witnessed by the driver of the car. Mr. Putnam, however, does not appear to have apprehended any personal injury or danger to himself or the ladies, nor did he call the attention of the conductor to the matter, or request his interference more than once, when he said, “Conductor, can’t you make this man be quiet?” whereupon the conductor said to Foster, “Sit down and be quiet.” After that, Foster sat down, and after sitting a short time, told Mr. Putnam in a low tone, “Before you leave this car I will give you hell;” but it does not appear that the conductor heard or could have heard that threat. The car was at about Thirty-fourth or Thirty-fifth Street when the threat was made, and Foster then went out upon the front platform, and Putnam shut the door after him, and thus things remained for about half a mile and until the car was stopped for Mr. Putnam at Forty-sixth Street. From these facts, considering them all, in their connection, it may be assumed that neither the conductor nor the driver supposed or had any reason to believe that the brutal and offensive conduct of Foster indicated an intention on his part at any time to make a personal attack upon Mr. Putnam, and also, that after Foster had left the interior of the car and quietly remained for a long distance upon the front platform, no apprehension of personal violence from him could reasonably have been apprehended by any one unless Putnam himself and the lady who overheard Foster’s low-toned threat were exceptions. Besides, it clearly appears from the evidence that Mr. Putnam had, at least, all the knowledge touching the conduct and conversation of Foster that was possessed by the conductor and driver or either of them, and had quite as much reason for supposing that Foster designed to make a personal assault upon him as "those employés of the defendants could have had. If the death of Mr. Putnam can be said to have been occasioned by the negligence or want of care of any one, Mr. Putnam himself was .therefore chargeable with that negligence as fully, at least, as were the conductor and driver or the railroad company itself. For, he not only neglected to tell the conductor or driver of the threat which Foster, had made, or to ask their assistance and protection, but he took no precaution whatever to avoid or guard himself against an attack. In no view which can be taken of the duties and obligations of the carriers, therefore, can it be held that Mr. Putnam’s death was occasioned by the negligence of the defendants, without any negligence on the part of the former which contributed to the loss of his life.

For these reasons, the plaintiffs failed to establish their' right to recover upon the evidence, and it follows that the motion for a nonsuit ought to have been granted.

The judgment and order appealed from should be reversed, with costs, and a new trial directed.

Note.—The decision of the court in this case has been reversed by the Court of Appeals, opinion by Allen J. (not yet reported). The impertance of the case, and the general interest of the profession therein, warrants the above full report of the case in this court.

The Reporters.  