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A treatise on the law of carriers (Volume 4) online

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car company for personal injury. ^^ A sleeping car company is liable for injuries
sustained by occupant of its sleeping car through the negligence or willful mis-
conduct of the employee whom it places in charge of the car.'^^

Failure to Answer Bell Calls. — A sleeping car company, by providing call
bells for its berths, holds out notice that such bells will be responded to when
rung, and a failure to answer bell calls is negligence.-''"'^

Leaving Suit Cases in Aisle. — It is negligent for a sleeping car company
to allow suit cases or valises to stand in the dimly lighted aisles of its cars, where
passengers are apt to stumble over them.^*'

Duty to Provide Means of Approach to Upper Berth. — Giving a passen-
ger an upper berth in a sleeping car imposes upon the company the duty of pro-
viding reasonably safe means for him to get out of it, and having steps it is nec-
essary, if they are movable, that servants be employed to bring them to the aid
of the passenger.-'*'^

50. Duties and liabilities as to person of
passenger. — Nevin v. Pullman Palace Car
Co., 10(3 111. 222, 4 Ky. L. Rep. 926, 46
Am. Rep. 688.

In Mississippi, it is held "that a sleep-
ing car company owes to all passengers
whom it receives all the obligations and
duties which a common carrier owes to
passengers, except, of course, that a sleep-
ing car company, not controlling the mo-
tive power, and not having the manage-
ment of the train of which its car is a
part, can not be held liable to its passen-
gers for injuries occurring to them by
reason of any defect or failure in the ma-
chinery which furnishes the motive
power, or by reason of any want of car^,
miscarriage, or default in the manage-
ment of the train." Nelson z'. Illinois
Cent. R. Co. (Miss.), 53 So. 619, quoting
Pullman Co. t-. Kelly, 86 Miss. 87, 38 So.

51. Pullman Co. 7'. Norton (Tex. Civ.
App.), 91 S. W. 841, affirmed in lUl Tex.
053, no op.

52. Degree of care required. — St. Louis,
etc., R. Co. 7'. Hatch, 94 S. W. 671, 116
Tenn. 580.

Care commensurate v/ith danger. — Car-
penter r. New York, etc., R. Co., 124 N.
Y. 53, 26 N. E. 277, 11 L. R. A. 759, 21
Am. St. Rep. 644, 47 Am. & Eng. R. Cas.

53. Absence of negligence. — Plaintiff, a
sleeping car passenger, during the night
went to the ladies' dressing room,
and, seeing the porter there, closed
the door, and placing her hand, as she
thought, on the side of the passageway,
started l)ack to her berth. The porter
opened the door, came out, and closed it
after him, when he discovered that the

plaintiff's fingers in some manner had
been caught in the jamb. Held that, in
the absence of proof that the porter had
any knowledge that plaintiff's hand was
in a dangerous position when he closed
the door, there was no negligence. Wil-
kins V. Pullman Co., 166 Fed. 1004.

A ventilator at the top of a sleeping
car was left open at night, in midsummer,
and rain drove in upon the occupant of
an upper berth, in consequence of which,
as he claimed, he contracted a cold, and
was made ill. It appeared that such win-
dows were usually left open at that sea-
son, but were always opened or closed as
requested by the person occupying the
upper berth, and could be opened or
closed by such person. The occupant in
the case in question was an experienced
traveler. He made no request that the
window be closed, and there was nothing
to give notice to the servants of the sleep-
ing car company that he required special
care or attention. Held, that such facts
did not establish negligence on the part
of the company which rendered it liable
for his illness. Edmundson v. Pullman
Palace Car Co., 92 Fed. 824, 34 C. C. A.

54. Campbell v. Pullman Palace Car
Co., 42 Fed. 484, 44 Am. & Eng. R. Cas.

55. Failure to answer bell calls. — Pull-
man's Palace Car Co. v. Fielding, 62 111.
App. 577. See St. Louis, etc., R. Co. v.
Hatch. 116 Tenn. 580, 94 S. W._ 671.

56. Negligence in leaving suit case in
aisle.— Levien r. Webb, 61 N. Y. S. 1113,
30 Misc. Rep. 196.

57. Duty to provide means of approach
to upper berth. — Pullman's Palace Car
Co. V. Fielding, 62 111. App. 577.



Duty to Keep Car Repaired. — A sleeping car company contracting with a
railway company to furnish sleeping cars, and to keep the same in good repair,
is liable to a passenger injured in consequence of its negligence in failing to keep
a car in repair without reference to the question for whom it acted, and though
it were but a servant of the railway company.""^

Proximate Cause of Injury. — Where a passenger, having through railroad
transportation and a check evidencing his right to occupy a through sleeping car,
was directed to leave his car at an intermediate point and there board another
car, and after alighting from the car, he was directed to go to the depot, and
while walking on the depot platform he fell and was injured, it was held, that
the failure of the sleeping car company to fulfill its contract for continuous pas-
sage was not the proximate cause of the injury.^^

§ 3546. Assaults, Insults, etc. — -It is the duty of sleeping car companies
to watch their cars and guard their passengers from assaults of third persons.^"^
And they are liable for negligent failure to protect passengers from assaults.^^
The care which they are required to exercise for the protection of their passen-
gers from assault, however, is only ordinary care or diligence.^^ When a sleep-
ing car company receives a passenger, and he retires to rest, it may well be as-
sumed to anticipate and be required to guard and protect him against a crime
which is likely to occur whenever the temptation and the opportunity are pre-
sented ; '^^ but it is held the company can not be deemed to have anticipated nor
be expected to guard and protect him against a crime so horrid as that of mur-
der, so it is not liable for such a death where there was no notice to the com-
pany nor its agents of impending danger and under circumstances which could
not have put them upon inquiry nor have excited their apprehension.^'^

58. Duty to keep car repaired. — Pullman
Co. T. Norton (Tex. Civ. App.)^ 91 S. \V.
841, affirmed in 101 Tex. 653, no op.

59. Proximate cause of injury. — Pull-
man Co. z: Slern, SS Miss. 390, 41 So. 333.

60. Duty to protect passengers from as-
saults. — St. L.ouis, etc., R. Co. v. Hatch,
]]G Tenn. r,SO, 94 S. W. GTl.

61. Liable for negligence. — Calder v.
Southern R. Co., 89 S. C. 287, 71 S. E.
841, wherein the court said: "The rule
that the duty of the carrier to a passen-
ger, from the wrongful acts of a fellow
passenger or stranger, only applies when
the carrier has knowledge of the exist-
ence of ihe danger, or of facts and circum-
stances from which the danger may be
reasonably anticipated, is not applicable
to passengers asleep in their l^erths. In
the case of passengers, other than those
in sleeping cars, it may reasonably be ex-
pected that they will be al)lc to give no-
tice of the necessity for protection, l)ut
knowledge of the fact that a passenger is
a'<Icep in his berth is, in itself, notice of
the necessity for taking proi^er precau-
tions to safeguard him, a<. at that time he
may be presumed to be powerless to give
notice of threatened danger."

Since violence is often a concomitant
of sneak thieving or robbery of a sleej)-
ing victim, a sleeping car company l)<)und
to kcej) watch over its passengers to pre-
vent robbery was I)Ound to take notice
of the fact that violence was lial>le to ac-
company the robbery of pa.ssengers while
asleep, and Iience tlie company was lialilc

for personal injuries to a passenger caused
by a robber inflicting a blow on hiin while
he was asleep in order to effect the rob-
bery, all of which was due to the sleeping
car company's negligence in failing to
keep a sufficient watch. Hill f. Pullman
Co., L-^H Fed. 497.

Employees absent from car. — A rail-
road company and a sleeping car com-
pany can not escape liability for indigni-
ties inflicted upon a passenger in the
sleeper, upon the ground that there was
no reason for supposing that any such
wrong would be committed, where their
employees were absent from the sleeper
for two hours, and failed to answer any
of the numerous bell calls, for this is not
the exercise of the vigilant care exacted
of tlie railroad company, nor of the rea-
sonaljle care required of the sleeping car
company. St. Loui?, etc., R. Co. v. Hatch,
1 ir, Tenn. '>S(), 94 S. W. ()71.

62. Degree of care required. — St. Louis,
etc., R. Co. z\ llatrli, I If, Tenn. 580, 94
S. W. 671.

63. Connell r.
93 Va. 44, 24 S.
Cas., X. S., 333.
St. Rep. 786.

64. Where passenger murdered. — Con-
nell t'. Chesapeake, etc., R. Co., 93 Va. 44,
24 S. !•:. 467, 5 Am. & Eng. R. Cas., N. S.,
333, 32 L. R. A. 792, 57 .Am. St. Rep. 786.
See Calder z: Soutliern R. Co., 89 S. C.
2H7, 71 S. !•'. 841, wherein the court in re-
ferring to the case just cited ^aid: "If it
is to be construed as ruling tliat a sleep-

Cliesapcake, etc., R. Co.,
E. 467, 5 Am. & Eng. R.
32 1.. K. A. 792, 57 .Am.

§§ 3546-3547



Assaults by Employees. — Parlor and sleeping car companies are liable for
assaults by their employees made within the scope of their employment. Thus,
it has been held that a porter on a sleeping car, who makes an assault on a pas-
senger who has just called him and requested food, inflicts the injury while dis-
charging duties in the scope of his employment, where he is the porter charged
with answering the calls of passengers and supplying them with food.^'' If, how-
ever, an assault, though within the scope of the employment, is justifiable as
upon sufficient provocation, there is no liability on the company. ^■'^' It is held that
as a general rule a sleeping car company is not liable for assaults on its pas-
sengers by its employees when such assault is wanton and wholly foreign to the
employment of the employee inflicting the assault.^" It has been held otherwise,
however, as to an indecent assault on a female passenger by the porter in charge
of the car in which she was a passenger.^^ A sleeping car company is not lia-
ble for an assault made by one of its stewards on a passenger on one of the reg-
ular cars of the train, who has, without right, entered defendant's car attached
to such train, to induce the steward to sell him liquors, in violation of the law
and the company's orders.^^

Insults and Rudeness. — A sleeping car company is bound to see that its
servants treat passengers with due consideration and do not subject them to
insults.'''^ However, rudeness alone, by the servants of a sleeping car company,
in the discharge of their duty, does not of itself render the sleeping car com-
pany liable for an action of damages, there being no use of force."^^

§ 3547. Duty as to Discharging- Passengers. — A sleeping car company
owes a passenger the duty to safely discharge him at his destination."^ ^ j^ must
notify him of his arrival at destination and give him a reasonable opportunity
to alight."^ A sleeping car company has been held liable for discharging pas-
sengers at five o'clock in the morning at a water tank a half mile from the sta-
tion."^ ^

ing car company can not be held liable
for damages, when a passenger is mur-
dered by a stranger, although both the
conductor and porter went to sleep, leav-
ing the passengers unprotected, on the
ground that murder was a danger not
reasonably to be anticipated, then such
a rule is not to be followed. We, how-
ever, do not think the conrt intended to
go to that extent, as it did not appear in
that case that the sleeping car company
had failed to keep a general watch over
the passengers. Therefore that case can
not be regarded as authority for the
proposition that it is not the duty of a
sleeping car company to take proper care
to keep watch over its passengers, even
before it has notice of danger, or of cir-
cumstances sufficient to put it on in-
quiry, which, if pursued with due dili-
gence, would lead to knowledge of the

65. Assaults by servants of sleeping
car company. — Pullman Palace Car Co.
V. Lawrence, 74 Miss. 782, 22 So. 53.

66. Sufficient provocation. — Plaintiff
after purchasing a seat in defendant's
parlor car, ordered a meal and later ob-
jected that he was not being served in
his turn. The porter politely informed
him that ladies' orders were served first,
whereupon plaintiff started to the plat-
form of the car to complain to the con-
ductor, and in doing so called the porter

a "black bastard," whereupon the porter
assaulted him. Held, that plaintiff pro-
voked the assault, and that the parlor
car company was therefore not responsi-
ble therefor, under the rule that parlor
car companies are only bound to provide
competent and careful servants, and are
liable for assaults or violence of the serv-
ants only when not provoked by the
wrongful conduct of the passenger. Rohr-
back V. Pullman's Palace Car Co., 166
Fed. 797.

67. Assaults not in scope of employ-
ment. — Williams v. Pullman Palace Car
Co., 40 La. Ann. 87, 3 So. 631, 33 Am. &
Eng. R. Cas. 407, 8 Am. St. Rep. 512.

68. Indecent assault. — Campbell v. Pull-
man Palace Car Co., 42 Fed. 484, 44 Am.
& Eng. R. Cas. 391.

69. Assault by servant asked to violate
law. — Cassedy v. Pullman Palace Car Co.
(Miss.), 17 So. 373.

70. Insults and rudeness. — Pullman Co.
V. Riley, 5 Ala. App. 561, 59 So. 761.

71. Pullman Palace Car Co. v. Bales, 80
Tex. 211, 15 S. W. 785.

72. Duty as to discharging passengers.
— Pullman Co. %'. Hovle, 52 Tex. Civ.
App. 534, 115 S. W. 315.

73. Notice of arrival. — Pullman Co. v.
Lutz, 154 Ala. 517, 45 So. 675, 14 L. R.
A., N. S., 907; Pullman Co. v. Kelly, 86
Miss. 87, 38 So. 317.

74. Plaintiff and his wife occupied



;§ 3547-3549

Sleeping Passenger. — A sleeping car company is bound to awaken and no-
tify a passenger occupying a berth in its car in time for him to prepare to safely
and comfortably leave the train at his destination."^^

Sick Passenger. — Where the servants of a sleeping car company accept a
sick person as a passenger on her way to a hospital it is their duty to see that
she is properly taken from the car at her destination to the depot. In such case
the company's failure to notify the train conductor of the passenger's condition
and of the necessity of assisting her to embark is actionable negligence.''^ The
primary duty of a sleeping car company to assist to alight and convey from the
car to the depot a sick passenger, is not waived by the sleeping car conductor
telegraphing for an ambulance and friends of the passenger to meet her.""^ Evi-
dence that the conductor agreed to make certain arrangements by telegraph for
her removal from the station to the hospital in an ambulance and to notify her
friends constituted him her agent for that purpose."^^

§ 3548. Contributory Negligence of Passenger. — A passenger on a sleep-
ing car may be guilty of such contributory negligence as will bar a recovery for
injuries sustained by him though the defendant was also negligent,'^" But a
blind passenger who asked a Pullman porter, telling him that he was blind, to
assist him into a sleeping car, and the porter took hold of his arms and put him
on the steps, was not negligent in feeling his way along the car up the steps
until he reached what he thought was a door but which was in fact the open
space on the other side of the car, whereby he fell and was injured, since he was
entitled to conclude that the porter, knowing of his infirmity, would watch him
and guide his movements.'''^

§§ 3549-3557. Ejection of Passengers— § 3549. Right to Eject.—

For proper cause, a sleeping car company has the right to eject a passenger-^^^

berths in a sleeping car. At 5 o'clock a.
m. the train stopped at a water tank a
half mile from their destination. The
porter and conductor of the sleeping car
awoke them suddenly, and told them
they were at the depot. They were hur-
ried ofif, partly dressed, and the train left
them before they discovered where they
were. The exposure resulted in injury
to the wife's health. Held that, the sleep-
ing car company having offered no evi-
dence of the duties of its servants and
the usages and rules in force on its cars,
it will be presumed that the conductor
and porter were acting within the scope
of their employment, and that the com-
pany was liable. Pullman Palace Car
Co. V. Smith. 70 Tex. 408, 14 S. W. 99.;,
2?, Am. St. Rep. 3,->r,, in L. R. A. 215.

75. Sleeping passenger.— Pullman Pal-
ace Car Co. ;•. Smith. 79 Tex. 408. 14 S.
VV. 'j'j:{, 2:i Am. St. Kep. 3.-.0, ].} L. R. A.
21.5. See Missouri, etc., R. Co. v. Kcn-
drick (Tex. Civ. App.), 32 S. W. 42; Mc-
Kcon r. Chicago, etc., R. Co., 94 Wis.
477. 09 X. VV. 17.-,. 8 Am. & Eng. R. Ca->.,
X. S., 219, 59 Am. St. Rep. 910, .'{5 [.. R.
A. 252.

76. Sick passenger.— Pullman Co. 71.
I-'iiilcy (V\'y'.. ), ]:r, Par. MHO.

77. Duty not waived.— Pullman Co. 7.
I- in Icy (Wyri. I, 1 ;.'.•, |'ac. :',h(),

78. Arrangements at destination.— Pull-
ma?! Co. 7. I'iiilcy (W'yoJ. l:-'5 Pac. 380.

79. Contributory negligence of passen-
ger. I'l.iintilf uas a passenger on .1

sleeping car on defendant's railroad. The
car was a vestibuled car, having doors
opening from the platforms to the steps
of the car. The inen's washroom was at
one end of the car, and from it doors
opened into the porter's closet and the
water-closet. Plaintiff had frequently
traveled on such cars before, and was fa-
miliar with their arrangements. During
the night, after plaintiff boarded the car,
he went to the water-closet in the men's
washroom, and he knew its location.
When he got up in the morning, it be-
ing a foggy, dark morning, he attempted
to go again to the water-closet, found
the end of the car and the washroom in
darkness, the lamps having become ex-
tinguished, and, in searching for the door
of the closet, walked beyond the wash-
room, and upon the platform of the car,
opened the door of the vestibule, stepped
off the train, and was injured. Held that,
whether or not the defendant was negli-
gent in allowing the lamps to be extin-
guished, plaintiff was guilty of such con-
tributory negligence as to bar his re-
covery. Piper 7'. New York, etc., R. Co.,
50 N. K. 851, 150 X. Y. 224, 41 L. R. A.
724, 00 Am. St. Rep. 500, reversing .34 N.
Y. S. 1072. Kit Mini 75.

80. Blind passenger. — Denver, etc., R.
Co. 7'. Derrv, 47 Colo. 5s|, los Par. 17:.',
27 I.. R. A., X. S., 701.

81. Right to eject. - See post. "Grounds
for bjeetion," §S .■1552-;t555.

§§ 3549-3552 carriers. . 3212

And its rights in this particular are no more hmited than those of a railway

§§ 3550-3551. Liability for Wrongful Ejection— § 3550. In Gen-
eral. — Where a passenger engages sleeping car services, is assigned a herth in
a sleeping car, and is afterwards ejected without cause, the sleeping car com-
pany is liable therefor.^^ In such case, there is both a tort and a breach of
contract.^"* Where the holder of a sleeping car ticket is assigned to a berth in
a car, other than that called for by his ticket, and is subsequently ejected, the
sleeping car company is liable in damages for the mistake, even though the ejec-
tion is by the demand of the person holding the ticket calling for the berth as-
signed by mistake to the party ejected.^^

§ 3551. Ejection by Railway Company. — Where a sleeping car not be-
longing to a railroad company is transported by it in one of its trains, the sleep-
ing car and its conductor and porter being under the control of the railroad con-
ductor, the act of the railroad conductor and the brakeman in ejecting a passen-
ger from the sleeping car is the act of the railroad company, and not of the
owner of the sleeping car ; ^'^ and the sleeping car company is not liable for the
wrongful ejection.^'' But it has been held that where a sleeping car company's
employee aided the employees of a railway company, over whose tracks its cars
were drawn, in forcing a passenger, who had engaged a berth in a sleeper, to
leave the car and complete the journey in a chair car, the sleeping car company
was not released from liability by the fact that its employees acted under orders
from the train conductor.^^

Fault of Sleeping Car Company.— A sleeping car company is liable for the
expulsion of a passenger by the employees of the railway company due to selling
him a sleeping car ticket between two points over a route other than that called
for by his railroad ticket, where the ticket was in the possession of the sleeping
car company's agent, and subject to his inspection.'^''

§§ 3552-3555. Grounds for Ejection— § 3552. Failure to Pay Fare.

— Where a passenger declines to pay a proper extra charge for passage in
a chair car, and on request he declines to leave it, he can not complain if
removed to the first-class car, where such removal is not effected by un-
necessary force. ^'^ But where a passenger, finding no vacant seats in the
ordinary coaches, proceeded to a drawing-room car owned by a private

82. ]\Jeyer v. St. Louis, etc., R. Co., 54 Plaintiff, having a railroad coupon
Fed. 116, 4 C. C. A. 221, 58 Am. & Eng. ticket for passage" from New Orleans to
R. Cas. 111. See, generally, "Ejection of New York over connecting lines of road,
Passengers." Chapter 25. on application to an agent of defendant,

83. Ejection of passengers. — Nevin v. and on showing his ticket, was sold a
Pullman Palace Car Co., 106 111. 222, 4 berth in a sleeping car from New Orleans
Ky. L. Rep. 926. 46 Am. Rep. 688. to Jersey City. From Washington to

84. Ejection both tort and breach of Jersey City such car was run over a line
contract. — Nevin r. Pullman Palace Car different from that named in plaintiff's
Co., 106 111. 222, 4 Ky. L. Rep. 926, 46 Am. ticket, and on his refusing to pay fare he
Rep. 688; Pullman Palace Car Co. v. was ejected by the employees of the rail-
Booth (Tex. Civ. App.), 28 S. W. 719. road company. Held, thai defendant, by

85. Taylor v. Wabash R. Co., 130 Mo. selling plaintiff accommodations in a par-
App. 582, 109 S. W. 1059. ticular car, virtually represented and war-

86. Ejection by railway company. — ranted that such car passed over the
Pullman Palace Car Co. v. Lee, 49 111. lines named in plaintiff's ticket, and was
App. 75. See Calhoun -'. Pullman Palace liable for a breach of the contract when
Car Co.. 149 Fed. 546. plaintiff, under the circumstances stated,

87. Paddock v. Atchison, etc., R. Co., was compelled to leave the car before
37 Fed. 841, 4 L. R. A. 231. reaching Jersey City. Pullman's Palace

88. Pullman Palace Car Co. ?•. Hocker, Car Co. v. King, 99 Fed. 380, 39 C. C. A.
41 Tex. Civ. App. 607, 93 S. W. 1009. 573.

89. Fault of sleeping car company. — 90. Failure to pay fare. — St. Louis, etc.,
Nashville, etc., R. Co. v. Price, 125 Tenn. R. Co. z: Hardy, 55 Ark. 134, 17 S. W.
646, 148 S. W. 219. 711.



|§ 3552-3555

individual and there took a seat, for which he refused to pay extra fare,
whereupon the porter of the drawing-room car attempted to eject him, it was
held that the railroad company was liable for the assault.^i A passenger ejected
from a Pullman train for refusal to pay a full berth rate can not recover on ac-
count of the porter's mistake in excluding from the train a fellow passenger who
might have shared the berth and the charge therefor where the ejected passen-
ger relied on the unreasonableness of the rule; and not on the misinformation
given by the porter.^-

§ 3553. Failure to Procure Proper Railroad Ticket. — Where the holder
of a void railroad ticket buys a Pullman ticket, he can not recover damages for
ejection from the Pullman.''^'' Where a contract between a railroad and a sleep-
ing car company provided that the latter should be governed by regulations of
the former, one of which was that passengers should not be entitled to purchase
sleeping car accommodations unless they held "through tickets" and a passenger,
holding a "split ticket," having applied for a sleeping car ticket, and the rail-
road company's agent having refused to sell him one, he was expelled from the
sleeping car, its conductor assisting the train conductor in leading him from that
car to one of the other passenger cars on the train, no special force being used

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