Third Party Criminal Assault Liabliity

Liability of land carrier to passenger who becomes victim..., 43 A.L.R.4th 189...
43 A.L.R.4th 189 (Originally published in 1986)
American Law Reports

ALR4th
The ALR databases are made current by the weekly addition of relevant new cases.
Sonja A. Soehnel, J.D.
Liability of land carrier to passenger who becomes victim of another passengers assault
TABLE OF CONTENTS
Article Outline
Index
Table of Cases, Laws, and Rules
Research References
ARTICLE OUTLINE
I Preliminary Matters
0
0 1[a] IntroductionScope
0 1[b] IntroductionRelated matters
0 2 Summary
II General considerations
0
0 3 Carrier employees duty with respect to intoxicated passenger
0 4 Carriers duty to use physical force to protect assault victim
III Liability in particular circumstances
0
0 A Railway passengers
5[a] Assaulters conduct directed toward plaintiff passengerassaulter intoxicatedLiability supportable
0
5[b] Assaulters conduct directed toward plaintiff passengerassaulter intoxicatedLiability not established
0
6[a] Assaulter not intoxicatedLiability supportable
0
6[b] Assaulter not intoxicatedLiability not established
0
7[a] Assaulters conduct not directed toward plaintiff passengerassaulter intoxicatedLiability supportable
0
7[b] Assaulters conduct not directed toward plaintiff passengerassaulter intoxicatedLiability not established
0
8 Assaulter not intoxicated
0
B Streetcar, elevated train, or subway passengers
0
0
0
0
2017 Thomson Reuters. No claim to original U.S. Government Works. 1


0
11 Assaulters conduct not directed toward plaintiff passengerassaulter intoxicated
0
0
12.5 Miscellaneous
0
C Bus passengers
0
0
0
0
0
14.5 Assaulters state of intoxication unknown or unspecified
0
15 Assaulters conduct not directed toward plaintiff passenger
0
D Taxicab passengers
0
16 Assaulter intoxicated
0
0
0 Research References
INDEX
0 Abduction 17
0 Abusive language 5, 7[a], 9- 11, 13, 15, 16
0 Aged passenger 4, 5[a]
0 Alcoholic beverages, passenger under influence of 3- 5, 7, 9, 11, 13, 16
0 Ambulance 14[a]
0 Armed Forces 5[b], 13[b]
0 Arrest 3, 5[a]
0 Baggage car 5, 6[b], 7[b]
0 Bartender 5[b]
0 Basket, stumbling over 5[b]
0 Bathroom 4, 5, 7[a]
0 Betting 5[a]
0 Bottle, injury from 7[a], 15
0 Brakeman 3, 5, 6[b], 7[a]
0 Burns 7[a]
0 Bus passengers 4, 13- 15
0 Cab passengers 16, 17
0 Camp 5[b]
0 Catholic priest 5[a], 6[b]
0 Children 5[a], 6, 7[a], 14
0 Circus attendance 5[b]
0 Clergyman 5[a], 6[b], 14[a]
0 Club car 4, 5
0 Conductor 3, 5- 7, 9, 10[b]
0 Construction workers 6[a]

0 Contagious disease 3, 11
0 County bus 14[a]
0 Crap game 5[a]
0 Crowded condition of railway car 6[b], 7[a]
0 Dancing forced by drunken passenger 4, 5[a]
0 Day coach 5[a]
0 Death action 3, 4, 5[b], 6[a], 9[b], 13[b]
0 Dice game 5[a]
0 Dining car 5[b]
0 Disarming passenger 3
0 Discrimination on basis of race 3- 6, 7[a], 10[b], 14[a]
0 Diseases 3, 11, 14
0 Divorce 17
0 Drunken passenger 3- 5, 7, 9, 11, 13, 16
0 Dynamite 7[a]
0 Egg basket, stumbling over 5[b]
0 Elderly passenger 4, 5[a]
0 Elevated train 9- 12
0 Employee and employer 3, 6[a], 8, 10[a]
0 Epilepsy 14
0 Excursion train 6[a]
0 Expulsion of passenger 3- 11, 15
0 Eye injury 7[a], 10[b], 13[a], 14[a], 15
0 Facial injuries 3, 6[b]
0 Filling station 13[b]
0 Finger injury 14[b]
0 Firearms 3- 6[a], 7, 9[a], 10, 13, 14[b], 16, 17
0 Foot injury 16
0 Force, generally 4
0 Fraternal organization 5[b]
0 Freight train 5[b]
0 Gambling 5[a]
0 Gasoline station 13[b]
0 Glass, injury from 7[a], 11, 15
0 Government camp 5[b]
0 Grandparents 6[b]
0 Hack passengers 16, 17
0 Hair pulling 5[b], 10[b], 14[b]
0 Hand injuries 3, 14[b]
0 Heater 5[b]
0 Hip injury 13[b]
0 Husband and wife 17
0 Infants 5[a], 6, 7[a], 14
0 Infectious disease 3, 11
0 Insane passenger 5[a], 6[a]

0 Insults 5, 9, 10[b]
0 Insurance 14[a]
0 Intoxicated passenger 3- 5, 7, 9, 11, 13, 16
0 Introduction 1
0 Iron wrench used as weapon 5[b]
0 Juveniles 5[a], 6, 7[a], 14
0 Kicking 3, 5[a], 9[a], 11, 13
0 Kidnapping 17
0 Kissing 9[a]
0 Knife attack 3, 5, 6[a], 7[a], 9[a], 10[a], 14[b]
0 Labor and labor relations 6[a], 8, 10[a]
0 Leg injuries 5[a], 9[a]
0 Lighting 10[a]
0 Liquor, passenger under influence of 3- 5, 7, 9, 11, 13, 16
0 Lounge 4, 5[a]
0 Luggage car 5, 6[b], 7[b]
0 Marines 13[b]
0 Mentally ill passenger 5[a], 6[a]
0 Metal ticket punch causing injury 15
0 Military service 5[b], 13[b]
0 Minister 4[a]
0 Minors 5[a], 6, 7[a], 14
0 Needle attack 13[b]
0 Newspaper vendor 6[a]
0 Nurse 5[a]
0 Obscene language 5, 7[a], 9[a], 10[a], 11, 13, 16
0 Offensive language 5, 7[a], 9- 11, 13, 15, 16
0 Old persons 4, 5[a]
0 Paper clip, injury caused by 14[a]
0 Passes 5[a]
0 Physical force, generally 4
0 Pistol 5, 7, 10[a], 16
0 Poisonous snake 5[b]
0 Porter 5
0 Powder burns 7[a]
0 Preliminary matters 1, 2
0 Priest 5[a], 6[b]
0 Private cars 5[b]
0 Profanity 5, 7[a], 9[a], 10[a], 11, 13, 16
0 Pullman company 5, 6[b]
0 Purse snatching 10[a]
0 Racially segregated accommodations 3- 6, 7[a], 10[b], 14[a]
0 Radio 16
0 Railway passengers 3- 12
0 Rape 4, 5, 6[b], 10[a], 17

0 Related matters 1[b]

0 Restroom 4, 5, 7[a]
0 Ring theft 6[b]
0 Riot 5[a]
0 Robbery 5[b], 6[b], 7[a], 10[a], 16, 17
0 Rubberband, injury caused by 14[a]
0 School children 6[a], 14
0 Scope of annotation 1[a]
0 Screams, investigation of 4, 5, 10[a], 13[a], 14[b]
0 Seaman 13[b]
0 Seam ripper used in attack 10[b]
0 Segregated accommodations 3- 6, 7[a], 10[b], 14[a]
0 Self-defense 5[a], 8
0 Separate coach statute 5[b], 6[a]
0 Service station 13[b]
0 Sexual attack 4, 5, 6[b], 10[a], 17
0 Singing forced by drunken passenger 4, 5[a]
0 Sleeping car 4- 6
0 Smoking car 5, 6[a]
0 Snake 5[b]
0 Sodomy 6[b]
0 Spitball 6[a]
0 Spouses 17
0 Stateroom 5[a]
0 Station 5[b], 7[a], 13[b]
0 Stealing 5[b], 6[b], 7[a], 10[a], 16, 17
0 Steam railroad cars 12
0 Steps in railway station 5[b]
0 Streetcars 3, 9- 12
0 Strikebreakers 8
0 Stumbling 5[b]
0 Subway passengers 5[b], 9- 12
0 Summary 2
0 Taxicab passengers 16, 17
0 Teacher 14[b]
0 Telephone book, throwing of 11
0 Theft 5[b], 6[b], 7[a], 10[a], 16, 17
0 Ticket punch causing injury 15
0 Toilet 4, 5, 7[a]
0 Train passengers 3- 12
0 Trolley cars 3, 9- 12
0 Two-way radio 16
0 Umbrella used as weapon 5[a]
0 Vendor 6[a]
0 Vestibule 5[a]

0 Wagering 5[a]
0 Watch theft 7[a]
0 Weapons 3- 6[a], 7- 9[a], 10, 13, 14[b], 16, 17
0 Whisker pulling 10[b]
0 Wife and husband 17
0 Wrench used as weapon 5[b]
0 Wrongful death action 3, 4, 5[b], 6[a], 9[b], 13[b]
Table of Cases, Laws, and Rules
Fourth Circuit
Hanback v. Seaboard Coastline R. R., 396 F. Supp. 80 (D.S.C. 1975) 5[a], 5[b]
Fifth Circuit
Pullman Co. v. Culbreth, 2 F.2d 540, 42 A.L.R. 164 (C.C.A. 5th Cir. 1924) 6[a]
Sixth Circuit
Murphy v. Western & A. R. R., 23 F. 637 (C.C.E.D. Tenn. 1885) 6[a]
Seventh Circuit
King v. Ohio & M. R. Co., 22 F. 413 (C.C.D. Ind. 1884) 3, 4, 5[a]
Eighth Circuit
Brown v. Chicago, R. I. & P. Ry. Co., 139 F. 972 (C.C.A. 8th Cir. 1905) 7[b]
Meyer v. St. Louis, I.M. & S. Ry. Co., 54 F. 116 (C.C.A. 8th Cir. 1893) 6[a]
Eleventh Circuit
Hall v. Pullman Co., 253 F. 297 (S.D. Fla. 1918) 6[a], 6[b]
District of Columbia Circuit

Milone v. Washington Metropolitan Area Transit Authority, 91 F.3d 229 (D.C. Cir. 1996) 14.5
Alabama
Birmingham Electric Co. v. Driver, 232 Ala. 36, 166 So. 701 (1936) 10[a]
Culberson v. Empire Coal Co., 156 Ala. 416, 47 So. 237 (1908) 6[a]
Gooch v. Birmingham Ry., Light & Power Co., 177 Ala. 293, 58 So. 196 (1912) 8
Seaboard Air Line Ry. Co. v. Mobley, 194 Ala. 211, 69 So. 614 (1915) 5[a], 5[b]
Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462 (1922) 5[a], 5[b]
Arkansas
Arkansas Power & Light Co. v. Steinheil, 190 Ark. 470, 80 S.W.2d 921 (1935) 10[b]
Black & White Cab Co. v. Doville, 221 Ark. 66, 251 S.W.2d 1005 (1952) 16
Citizens Coach Co. v. Wright, 228 Ark. 1143, 313 S.W.2d 94 (1958) 14[a]
Hines v. Meador, 145 Ark. 356, 224 S.W. 742 (1920) 6[a]
Hines v. Rice, 142 Ark. 159, 218 S.W. 851 (1920) 5[a]
Memphis, D. & G.R. Co. v. Trussell, 122 Ark. 516, 183 S.W. 981 (1916) 3, 5[a]
California
Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) (applying California law) 14[b]
Hernandez v. Southern California Rapid Transit Dist., 142 Cal. App. 3d 1063, 191 Cal. Rptr. 436 (2d Dist. 1983) 14[a], 14[b]
Hicks v. Scott, 48 Cal. App. 2d 481, 120 P.2d 107 (2d Dist. 1941) 5[b]
Lopez v. Southern California Rapid Transit Dist., 153 Cal. App. 3d 1135, 200 Cal. Rptr. 779 (2d Dist. 1984) 14[a], 14[b]
Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal. 3d 780, 221 Cal. Rptr. 840, 710 P.2d 907 (1985) 14[a]
Taeleifi v. Southern Cal. Rapid Transit Dist., 130 Cal. App. 3d 366, 181 Cal. Rptr. 697 (2d Dist. 1982) 14[b]
Terrell v. Key System, 69 Cal. App. 2d 682, 159 P.2d 704 (1st Dist. 1945) 5[a]
Colorado
Snyder v. Colorado Springs & C.C.D. Ry. Co., 36 Colo. 288, 85 P. 686 (1906) 6[b]
Stockwell v. Regional Transp. Dist. of Denver, 946 P.2d 542 (Colo. App. 1997) 14.5
Florida
Alvarez v. Metropolitan Dade County, 378 So. 2d 1317 (Fla. Dist. Ct. App. 3d Dist. 1980) 14[b]
Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326 (5th Cir. 1959) (applying Florida law) 14[a]
DeLucia v. Metropolitan Dade County, 451 So. 2d 1008 (Fla. Dist. Ct. App. 3d Dist. 1984) 14[a]
Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151 (1921) 6[a], 6[b]
Georgia
Grimsley v. Atlantic Coast Line R. Co., 1 Ga. App. 557, 57 S.E. 943 (1907) 3, 7[a], 16
Hillman v. Georgia R. & Banking Co., 126 Ga. 814, 56 S.E. 68 (1906) 5[a]
Holly v. Atlanta Street R. R., 61 Ga. 215, 1878 WL 2838 (1878) 12
McPherson v. Tamiami Trail Tours, Inc., 383 F.2d 527 (5th Cir. 1967) (applying Georgia law) 14[a]
Pinnell v. Yellow Cab Co., 77 Ga. App. 73, 47 S.E.2d 774 (1948) 3, 7[a], 16
Powell v. Beasley, 57 Ga. App. 231, 194 S.E. 926 (1938) 3, 5[a], 5[b]
Richmond & D. R. Co. v. Jefferson, 89 Ga. 554, 16 S.E. 69 (1892) 4, 5[a], 5[b]
Illinois
Blackwell v. Fernandez, 324 Ill. App. 597, 59 N.E.2d 342 (1st Dist. 1945) 9[a]
Collins v. Chicago Transit Authority, 286 Ill. App. 3d 737, 222 Ill. Dec. 246, 677 N.E.2d 449 (1st Dist. 1997) 12.5
Gordon v. Chicago Transit Authority, 128 Ill. App. 3d 493, 83 Ill. Dec. 743, 470 N.E.2d 1163, 43 A.L.R.4th 173 (1st Dist.
1984) 10[a]
Hendricks v. Champaign-Urbana Mass Transit Dist., 276 Ill. App. 3d 230, 213 Ill. Dec. 49, 658 N.E.2d 519 (4th Dist. 1995)
14[b]
Letsos v. Chicago Transit Authority, 47 Ill. 2d 437, 265 N.E.2d 650 (1970) 9[a], 13[a], 14[b]
Martin v. Chicago Transit Authority, 128 Ill. App. 3d 837, 84 Ill. Dec. 15, 471 N.E.2d 544 (1st Dist. 1984) 10[a]
McCoy v. Chicago Transit Authority, 69 Ill. 2d 280, 13 Ill. Dec. 690, 371 N.E.2d 625 (1977) 9[a], 14[b]
Uebelein v. Chicago Transit Authority, 86 Ill. App. 2d 395, 230 N.E.2d 33 (1st Dist. 1967) 10[a]
Watson v. Chicago Transit Authority, 52 Ill. 2d 503, 288 N.E.2d 476 (1972) 13[a], 14[b]
Wolf v. East St. Louis City Lines, 173 F.2d 393 (8th Cir. 1949) (applying Illinois law) 15
Indiana
Evansville & I. R. Co. v. Darting, 6 Ind. App. 375, 33 N.E. 636 (1893) 6[a]

Lake Erie & W. R. Co. v. Arnold, 26 Ind. App. 190, 59 N.E. 394 (1901) 6[b]
Pittsburgh, C., C. & St. L. Ry. Co. v. Richardson, 40 Ind. App. 503, 82 N.E. 536 (1907) 5[a]
Sheehan v. New York Cent. R. Co., 108 Ind. App. 38, 27 N.E.2d 100 (1940) 5[b]
Iowa
Felton v. Chicago, R.I. & P. Ry. Co., 69 Iowa 577, 29 N.W. 618 (1886) 5[b]
Murray v. Cedar Rapids City Lines, 242 Iowa 794, 48 N.W.2d 256 (1951) 13[a]
Starr v. Chicago, B. & Q.R. Co., 156 Iowa 311, 136 N.W. 524 (1912) 5[a]
Kansas
Holmes v. Fleming, 122 Kan. 652, 253 P. 224 (1927) 10[a]
Jones v. Yellow Cab & Baggage Co., 176 Kan. 558, 271 P.2d 249 (1954) 17
Spangler v. St. Joseph & G.I. Ry. Co., 68 Kan. 46, 74 P. 607 (1903) 7[a]
Kentucky
Cincinnati, N.O. & T.P. Ry. Co. v. Taylor, 27 Ky. L. Rptr. 351, 85 S.W. 168 (Ky. 1905) 5[a]
Hale v. Chesapeake & O. Ry. Co., 142 Ky. 835, 135 S.W. 398 (1911) 5[b]
Kinney v. Louisville & N.R. Co., 99 Ky. 59, 17 Ky. L. Rptr. 1405, 34 S.W. 1066 (1896) 5[b]
Louisville & I.R. Co. v. Garr, 209 Ky. 841, 273 S.W. 540 (1925) 6[a]
Louisville & N.R. Co. v. Finn, 16 Ky. L. Rptr. 57, 1894 WL 1666 (Super. Ct. 1894) 5[a]
Louisville & N.R. Co. v. McEwan, 21 Ky. L. Rptr. 487, 51 S.W. 619 (Ky. 1899) 7[a]
Louisville & N.R. Co. v. McEwan, 17 Ky. L. Rptr. 406, 31 S.W. 465 (Ky. 1895) 7[a]
Louisville & N.R. Co. v. Renfros Admr, 142 Ky. 590, 135 S.W. 266 (1911) 5[b]
Louisville R. Co. v Wellington (1910) 137 Ky 726, 128 SW 1077 5[a]
Louisville R. Co. v Wellington (1910) 137 Ky 719, 126 SW 370 5[a]
Payne v. Moore, 196 Ky. 454, 244 S.W. 869 (1922) 5[b]
Peak v. Louisville & N.R. Co., 221 Ky. 97, 297 S.W. 1107 (1927) 5[b]
Pullman Co. v. Pulliam, 187 Ky. 213, 218 S.W. 1005 (1920) 6[b]
Louisiana
Aime v. Hebert, 282 So. 2d 566 (La. Ct. App. 4th Cir. 1973) 14[a], 14[b]
Bernard v. Baton Rouge Bus Co., 81 So. 2d 456 (La. Ct. App. 1st Cir. 1955) 14[b]
Bynum v. Wiggins, 107 So. 2d 476 (La. Ct. App. 1st Cir. 1958) 16
Campo v. George, 347 So. 2d 324 (La. Ct. App. 4th Cir. 1977) 13[b], 14[a]
Carter v. New Orleans Public Service, Inc., 335 So. 2d 105 (La. Ct. App. 4th Cir. 1976) 14[b]
Higgins v. New Orleans Public Service, Inc., 347 So. 2d 944 (La. Ct. App. 4th Cir. 1977) 4, 14[b]
Imig v. New Orleans Public Service, Inc., 391 So. 2d 72 (La. Ct. App. 4th Cir. 1980) 14[b]
Meredith v. New Orleans Public Service, Inc., 402 So. 2d 738 (La. Ct. App. 4th Cir. 1981) 12
Orr v. New Orleans Public Service, Inc., 349 So. 2d 417 (La. Ct. App. 4th Cir. 1977) 13[b], 14[a]
Pinkney v. Miller, 439 So. 2d 1113 (La. Ct. App. 4th Cir. 1983) 3, 13[b]
Rodriguez v. New Orleans Public Service, Inc., 400 So. 2d 884 (La. 1981) 4, 10[b], 13[b], 14[a], 14[b]
Maryland
Pugh v. Washington Ry. & Electric Co., 138 Md. 226, 113 A. 732 (1921) 5[b]
St. Michelle v. Catania, 252 Md. 647, 250 A.2d 874 (1969) 17
Todd v. Mass Transit Admin., 373 Md. 149, 816 A.2d 930 (2003) 14[b]

United Railways & Electric Co. v. State, 93 Md. 619, 49 A. 923 (1901) 9[a]
Massachusetts
Holton v. Boston Elevated Ry. Co., 303 Mass. 242, 21 N.E.2d 251 (1939) 3, 9[a]
Isenberg v. New York, N.H. & H.R. Co., 221 Mass. 182, 108 N.E. 1046 (1915) 6[a]
Nute v. Boston & M.R.R., 214 Mass. 184, 100 N.E. 1099 (1913) 8
Rine v. Eastern Mass. St. Ry. Co., 317 Mass. 520, 58 N.E.2d 750 (1945) 13[a]
Topping v. Eastern Mass. St. Ry. Co., 252 Mass. 270, 147 N.E. 882 (1925) 3, 11
Michigan
McWilliams v. Lake Shore & M.S. Ry. Co., 146 Mich. 216, 109 N.W. 272 (1906) 7[a]
Minnesota
Jansen v. Minneapolis & St. L. Ry. Co., 112 Minn. 496, 128 N.W. 826 (1910) 5[a]
Mullan v. Wisconsin Cent. R. Co., 46 Minn. 474, 49 N.W. 249 (1891) 6[b]
Mississippi
Illinois Cent. R. Co. v. Minor, 69 Miss. 710, 11 So. 101 (1892) 5[b]
Mississippi Power & Light Co. v. Garner, 179 Miss. 588, 176 So. 280 (1937) 14[a]
New Orleans, St. L. & C.R. Co. v. Burke, 53 Miss. 200, 1876 WL 5083 (1876) 4, 5[a]
Royston v. Illinois Cent. R. Co., 67 Miss. 376, 7 So. 320 (1890) 6[b]
Spinks v. New Orleans, M. & C.R. Co., 106 Miss. 53, 63 So. 190 (1913) 5[b]
Missouri
Abernathy v. Missouri Pac. R. Co., 217 S.W. 568 (Mo. Ct. App. 1920) 3, 5[b], 7[a]
Case v. St. Louis Public Service Co., 238 Mo. App. 1029, 192 S.W.2d 595 (1946) 5[b], 10[a]
Hines v. Rice, 142 Ark. 159, 218 S.W. 851 (1920) (applying Missouri law) 5[b]
Koenig v. St. Louis Public Service Co., 45 S.W.2d 896 (Mo. Ct. App. 1932) 9[a]
Lige v. Chicago, B. & Q.R. Co., 275 Mo. 249, 204 S.W. 508 (1918) 3, 5[a], 5[b], 7[a], 9[a], 10[a]
Liljegren v. United Rys. Co. of St. Louis, 227 S.W. 925 (Mo. Ct. App. 1921) 3, 9[a]
Sira v. Wabash Ry. Co., 115 Mo. 127, 21 S.W. 905 (1893) 6[b]
Thompson v. St. Louis Public Service Co., 242 S.W.2d 299 (Mo. Ct. App. 1951) 5[b], 9[a]
Utterback v. St. Louis & S.F. Ry. Co., 189 S.W. 1171 (Mo. 1916) 5[b]
Montana
Groves v. Greyhound Lines Inc., 79 Fed. Appx. 255 (9th Cir. 2003) (applying Montana law) 14[a]
New Jersey
Falzarano v. Delaware, L. & W. R. Co., 119 N.J.L. 76, 194 A. 75 (N.J. Ct. Err. & App. 1937) 7[a]
Frazier v. Public Service Ry. Co., 99 N.J.L. 501, 1 N.J. Misc. 361, 123 A. 867 (Ct. Err. & App. 1924) 9[a]
Frazier v. Public Service Ry. Co., 97 N.J.L. 37, 116 A. 769 (N.J. Sup. Ct. 1922) 9[a]
Hoff v. Public Service Ry. Co., 91 N.J.L. 641, 103 A. 209, 15 A.L.R. 860 (N.J. Ct. Err. & App. 1918) 9[b]
Kinsey v. Hudson & Manhattan R. Co., 130 N.J.L. 285, 32 A.2d 497 (N.J. Sup. Ct. 1943) 5[a]
Sanchez v. Independent Bus Co., Inc., 358 N.J. Super. 74, 817 A.2d 318 (App. Div. 2003) 14.5
Skillen v. West Jersey & S.R. Co., 96 N.J.L. 492, 115 A. 372 (N.J. Ct. Err. & App. 1921) 6[a]
Spalt v. Eaton, 119 N.J.L. 343, 196 A. 736 (N.J. Ct. Err. & App. 1938) 15
Spalt v. Eaton, 118 N.J.L. 327, 192 A. 576 (N.J. Sup. Ct. 1937) 15

New York
Alleyne v. New York City Transit Authority, 208 A.D.2d 666, 617 N.Y.S.2d 523 (2d Dept 1994) 14.5
Banks v. New York City Dept. of Educ., 70 A.D.3d 988, 895 N.Y.S.2d 512, 253 Ed. Law Rep. 857 (2d Dept 2010) 15
Craig v. New York Cent. R. Co., 272 N.Y. 610, 5 N.E.2d 356 (1936) 5[b]
Crawford v. Brooklyn & Queens Transit Corp., 254 A.D. 582, 3 N.Y.S.2d 105 (2d Dept 1938) 10[a]
Farmer v. Green Bus Lines, Inc., 254 A.D.2d 389, 679 N.Y.S.2d 88 (2d Dept 1998) 14.5
Frazier v. Manhattan and Bronx Surface Transit Operating Authority, 75 A.D.3d 619, 905 N.Y.S.2d 657 (2d Dept 2010)
14[b]
Garrett v. Bee Line, 257 A.D. 981, 13 N.Y.S.2d 154 (2d Dept 1939) 14[a]
Genovese v. New York City Transit Authority, 204 A.D.2d 116, 611 N.Y.S.2d 542 (1st Dept 1994) 10[b]
German-Bey v. National R.R. Passenger Corp., 703 F.2d 54 (2d Cir. 1983) (applying New York law) 3, 5[b]
Goodwin v. City of New York, 206 Misc. 740, 134 N.Y.S.2d 373 (City Ct. 1954) 11
Katzman v. New York City Transit Authority, 174 A.D.2d 607, 571 N.Y.S.2d 93 (2d Dept 1991) 14[b]
Kearns v. Brooklyn & Queens Transit Corp., 254 A.D. 779, 4 N.Y.S.2d 764 (2d Dept 1938) 12
Koch v. Brooklyn Heights R. Co., 75 A.D. 282, 78 N.Y.S. 99 (2d Dept 1902) 10[a]
Maley v. Childrens Bus Service, Inc., 203 Misc. 559, 117 N.Y.S.2d 888 (Sup 1952) 14[a]
Miller v. City of New York, 277 A.D.2d 363, 717 N.Y.S.2d 198 (2d Dept 2000) 9[a]
Putnam v. Broadway & S.A.R. Co., 55 N.Y. 108, 15 Abb. Pr. N.S. 383, 1873 WL 10543 (1873) 3, 9[b]
Rabadi by Rabadi v. County of Westchester, 160 A.D.2d 858, 554 N.Y.S.2d 291, 60 Ed. Law Rep. 154 (2d Dept 1990) 14[b]
Rawlins v. Manhattan and Bronx Surface Transit Operating Authority, 232 A.D.2d 340, 648 N.Y.S.2d 610 (1st Dept 1996)
14.5
Reyes v. City of New York, 238 A.D.2d 563, 656 N.Y.S.2d 379, 117 Ed. Law Rep. 1092 (2d Dept 1997) 10[a]
Scalise v. City of New York, 2 A.D.2d 984, 157 N.Y.S.2d 620 (2d Dept 1956) 10[b]
Siegelbaum v. Dowling, 254 A.D. 336, 5 N.Y.S.2d 57 (1st Dept 1938) 10[b]
Stutsky v. Brooklyn Heights R. Co., 88 N.Y.S. 358 (App. Term 1904) 10[b]
Tickner v. Rochester-Genesee Regional Transp. Authority, 87 Misc. 2d 703, 386 N.Y.S.2d 622 (Sup 1976) 14[a]
Wachser v. Interborough Rapid Transit Co., 69 Misc. 346, 125 N.Y.S. 767 (App. Term 1910) 9[a]
Zimmet v. City of New York, 158 N.Y.S.2d 356 (Sup 1956) 10[b]
North Carolina
Bedsole v. Atlantic Coast Line R. Co., 151 N.C. 152, 65 S.E. 925 (1909) 6[a]
Britton v. Atlanta & C.A.L. Ry. Co., 88 N.C. 536, 1883 WL 2402 (1883) 6[a]
Chancey v. Norfolk & W. Ry.Co., 174 N.C. 351, 93 S.E. 834 (1917) 6[b]
Frady v. Ballard, 222 N.C. 762, 24 S.E.2d 254 (1943) 14[b]
Leake v. Queen City Coach Co., 270 N.C. 669, 155 S.E.2d 161 (1967) 13[b]
Livingston v. Seaboard Air Line R. Co., 106 F. Supp. 886 (E.D. S.C. 1952) (applying North Carolina law) 6[b]
Mills v. Atlantic Coast Line R.R., 172 N.C. 266, 90 S.E. 221 (1916) 5[b]
Penny v. Atlantic Coast Line R. Co., 153 N.C. 296, 69 S.E. 238 (1910) 7[a], 7[b]
Penny v. Atlantic Coast Line R. Co., 133 N.C. 221, 45 S.E. 563 (1903) 7[a]
Stanley v. Southern R. Co., 160 N.C. 323, 76 S.E. 221 (1912) 5[a]
North Dakota
Haser v. Pape, 77 N.D. 36, 39 N.W.2d 578 (1949) 17
Ohio
Floyd v. City of Cleveland, 99 Ohio App. 282, 56 Ohio Op. 21, 70 Ohio L. Abs. 563, 123 N.E.2d 540 (8th Dist. Cuyahoga

County 1955) 14[a]

Paal v. Cleveland R. Co., 11 Ohio App. 462, 1918 WL 881 (8th Dist. Cuyahoga County 1918) 10[b]
Schafer v. Youngstown Municipal Ry. Co., 19 Ohio L. Abs. 205, 1935 WL 1816 (Ct. App. 7th Dist. Mahoning County 1935)
15
Pennsylvania
Brehony v. Pottsville Union Traction Co., 218 Pa. 123, 66 A. 1006 (1907) 3, 11
Gerlach v. Pittsburgh Rys. Co., 94 Pa. Super. 121, 1928 WL 4491 (1928) 9[a]
Hillebrecht v. Pittsburgh Ry. Co., 55 Pa. Super. 204, 1913 WL 4879 (1913) 10[b]
Kerns v. Pennsylvania R. Co., 366 Pa. 477, 77 A.2d 381 (1951) 5[b]
McMullin v. Philadelphia Rapid Transit Co., 273 Pa. 159, 116 A. 832 (1922) 10[b]
Pearlstein v. Philadelphia Transp. Co., 400 Pa. 365, 162 A.2d 205 (1960) 14[b]
Pittsburg & C.R. Co. v. Pillow, 76 Pa. 510, 1874 WL 13230 (1874) 4, 7[a]
Widener v. Philadelphia Rapid Transit Co., 224 Pa. 171, 73 A. 209 (1909) 10[b]
South Carolina
Anderson v. South Carolina & G.R. Co., 81 S.C. 1, 61 S.E. 1096 (1908) 5[a], 5[b]
Anderson v. South Carolina & G.R. Co., 77 S.C. 434, 58 S.E. 149 (1907) 5[b]
Dennis v. Columbia Electric St. Ry., L. & P. Co., 93 S.C. 295, 76 S.E. 711 (1912) 10[a]
Franklin v. Atlanta & C. Air Line Ry. Co., 74 S.C. 332, 54 S.E. 578 (1906) 6[b]
Hanback v. Seaboard Coastline R. R., 396 F. Supp. 80 (D.S.C. 1975) (applying South Carolina law) 4, 5[a]
Spires v. Atlantic Coast Line R. Co., 92 S.C. 564, 75 S.E. 950 (1912) 5[a], 5[b]
Stalnaker v. Southern Ry. Co., 176 S.C. 408, 180 S.E. 357 (1935) 5[b]
Tennessee
Nashville, C. &. St. L. Ry. Co. v. Flake, 114 Tenn. 671, 88 S.W. 326 (1905) 7[a]
Southeastern Greyhound Lines v. Smith, 23 Tenn. App. 627, 136 S.W.2d 727 (1939) 14[b]
St. Louis, I. M. & S. Ry. Co. v. Hatch, 116 Tenn. 580, 94 S.W. 671 (1906) 5[a]
Texas
Dallas, City of v. Jackson, 450 S.W.2d 62 (Tex. 1970) 4, 13[b]
El Paso Electric Co. v. Cannon, 69 S.W.2d 532 (Tex. Civ. App. El Paso 1934) 10[a]
Ft. Worth & R.G. Ry. Co. v. Stewart, 107 Tex. 594, 182 S.W. 893 (1916) 5[b]
Galveston, H. & S.A. Ry. Co. v. Bell, 165 S.W. 1 (Tex. Civ. App. San Antonio 1914) 8
International & G.N.R. Co. v. Giesen, 69 S.W. 653 (Tex. Civ. App. 1902) 6[a]
International & G.N.R. Co. v. Henderson, 82 S.W. 1065 (Tex. Civ. App. 1904) 5[a]
International & G.N. Ry. Co. v. Miller, 9 Tex. Civ. App. 104, 28 S.W. 233 (1894) 6[a]
Kerrville Bus Co. v. Williams, 206 S.W.2d 262 (Tex. Civ. App. Galveston 1947) 13[a]
Pacific Greyhound Lines v. Vermillion, 87 S.W.2d 312 (Tex. Civ. App. El Paso 1935) 13[a]
Pecos & N.T. Ry. Co. v. Twichell, 145 S.W. 319 (Tex. Civ. App. Amarillo 1912) 6[b]
Southern Traction Co. v. Coley, 211 S.W. 265 (Tex. Civ. App. Austin 1919) 9[a]
Texas & P. Ry. Co. v. Baker, 215 S.W. 556 (Tex. Commn App. 1919) 6[b]
Twichell v. Pecos & N.T. Ry. Co., 62 Tex. Civ. App. 175, 131 S.W. 243 (1910) 6[a]
Virginia
Norfolk & W. Ry. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906) 6[a]

Virginia Railway & Power Co. v. McDemmick, 117 Va. 862, 86 S.E. 744 (1915) 11
Washington
Tortes v. King County, 119 Wash. App. 1, 84 P.3d 252 (Div. 1 2003) 15
Wisconsin
Finken by Gutknecht v. Milwaukee County, 120 Wis. 2d 69, 353 N.W.2d 827 (Ct. App. 1984) 14[a]
Kline v. Milwaukee Electric Railway & Light Co., 146 Wis. 134, 131 N.W. 427 (1911) 7[a]
I. Preliminary Matters
1[a] IntroductionScope
This annotation1 collects and analyzes the state and federal cases in which the courts have discussed the liability of a land
carrier2 based on an injury suffered by a passenger caused by an assault3 by another passenger.4
1[b] IntroductionRelated matters
Research References
Related Annotations are located under the heading of this Annotation.
2. Summary
The cases in this annotation are divided into four major groups with respect to a carriers liability in particular circumstances
those cases involving railway passengers ( 5- 8, infra), those involving streetcar, elevated train, and subway passengers
( 9- 12, infra), those involving bus passengers ( 13- 15, infra), and those involving taxicab passengers ( 16, 17, infra).
Within these groups the cases are generally categorized according to whether the assaulters conduct was directed toward the
plaintiff passenger and whether the assaulter was allegedly intoxicated ( 5- 17, infra). In most categories the results have
varied with respect to the liability of the carrier ( 5-11, 13, 14, and 16, infra). However, in those few cases where a streetcar
passenger was hit by an apparently sober passenger who was fighting with another passenger or with a law enforcement
officer ( 12, infra), or where a bus passenger was injured as a result of a fight between an intoxicated passenger and the
busdriver ( 15, infra), or where a taxicab passenger was deliberately assaulted by an apparently sober passenger ( 17, infra),
the courts have held that the carriers liability was supportable.
The courts are generally in agreement that a carrier has a duty to protect passengers from assaults at the hands of fellow
passengers and is liable to a passenger where it or its employees knew or ought to have known of the assault and failed to
protect the assault victim ( 5- 17, infra). However, the courts have differed as to the degree of care required of the carrier,
with some courts stating that the highest degree of care is required, others stating that only reasonable or ordinary care is
required, and others stating that a carrier is required to use the highest degree of care to protect passengers from assaults that
are reasonably foreseeable ( 5- 17, infra). The courts have also differed regarding a carriers duty with respect to an
intoxicated passenger prior to his or her assault of another passenger. Some courts have held that the mere fact of a
passengers intoxication does not constitute notice that he or she may subsequently assault another passenger, or have held
that a carriers liability to an assault victim is not shown by the mere presence of an intoxicated passenger and his or her
subsequent assault of a passenger; other courts have held that the intoxication of a passenger, in itself, does not justify or
require the passengers exclusion or expulsion from the vehicle; and other courts, in older cases involving railways, have held
that a railway company employee has the duty to use reasonable care to prevent an intoxicated person from boarding or the
duty to eject or to observe carefully any intoxicated person on board ( 3, infra). And the courts have differed with respect to
whether a carrier employee has the duty to use physical force to protect an assault victim. Some courts, in modern cases
involving assaults on bus or streetcar passengers where apparently the only carrier employee on the vehicle was the driver or
motorman, have held that a carrier employee is not required to interfere physically, but is simply required to seek police
assistance promptly, while other courts, in nineteenth century cases involving railway passengers, have indicated that a
railway conductor has the duty to use physical force to restrain or eject a railway passenger who is assaulting another
passenger ( 4, infra).
Whichever views the courts have espoused with respect to a carriers duty, in the cases in which a carriers liability was held
to be supportable, the courts have often focused on the presence of one or more of the following factors: a carrier employee
directed, witnessed, or participated in the assault; a carrier employee was informed of an impending assault or an assault in
progress and ran away or did nothing or not enough to protect the assault victim; prior to the assault a carrier employee had
been involved in an altercation or disagreement with the assailant or had asked the victim to help eject or subdue the
assailant; prior to the assault a carrier employee was or should have been aware of the condition or conduct of the assailant
indicating that he or she would assault another passenger, but the employee took no precautions or insufficient precautions to
protect the passengers from the assailant; or there were not sufficient carrier employees to prevent assaults on passengers (
5 17
- , infra). On the other hand, in the cases in which a carriers liability was held not to be established, the courts have
frequently emphasized one or more of the following factors: the assault was not committed in the presence of a carrier
employee; the assault was sudden; the victim was intoxicated; there was nothing in the condition or conduct of the assailant
prior to the assault to indicate that he or she would assault another passenger; the assault or the assailants disorderly conduct
prior to the assault was of short duration; once the carrier employee learned of an impending or actual assault he or she
promptly took action to protect the passengers from the assailant; or the only carrier employee on the vehicle was busy
driving the vehicle prior to or during the assault ( 5- 17, infra).
II. General considerations
3. Carrier employees duty with respect to intoxicated passenger
[Cumulative Supplement]
In the following cases the courts recognized, as indicated parenthetically, that the mere fact of a passengers intoxication does
not constitute notice that he or she may subsequently assault another passenger or that a carriers liability to an assault victim

is not shown by the mere presence of an intoxicated passenger and his or her subsequent assault of a passenger.
US
For federal cases involving state law, see state headings infra
Ga
But see Grimsley v Atlantic C. L. R. Co. (1907) 1 Ga App 557, 57 SE 943, infra
Powell v Beasley (1938) 57 Ga App 231, 194 SE 926 (no notice)
Pinnell v Yellow Cab Co. (1948) 77 Ga App 73, 47 SE2d 774 (no notice)
La
Pinkney v Miller (1983, La App 4th Cir) 439 So 2d 1113, cert den, prohibition den, mand den (La) 444 So 2d 117,
reconsideration den (La) 445 So 2d 443 (no notice)
Mass
Topping v Eastern M. S. R. Co. (1925) 252 Mass 270, 147 NE 882 (no liability)
Mo
Abernathy v Missouri P. R. Co. (1920, Mo App) 217 SW 568 (no notice or liability)
Liljegren v United R. Co. (1921, Mo App) 227 SW 925 (no notice)
NY
German-Bey v National R. Passenger Corp. (1983, CA2 NY) 703 F2d 54 (applying New York law) (no notice or liability)
In Holton v Boston E. R. Co. (1939) 303 Mass 242, 21 NE2d 251, an action by a streetcar passenger who was pushed off the
car by an intoxicated passenger, the court said that a carriers liability is not shown by the mere presence of an intoxicated
passenger on a car and the fact that he caused an injury to another passenger. The court added that it could not be said as a
matter of law that the failure of the one in control of a drunken person to restrain him under such supervision that he cannot
possibly harm another makes the one in charge absolutely liable if such harm results.
In German-Bey v National R. Passenger Corp. (1983, CA2 NY) 703 F2d 54 (applying New York law), an action against two
carriers by a train passenger who was slashed in the face and hand by an intoxicated passenger with a knife, the court stated
that the mere fact that the carrier employees allowed the assailant to board the train in an intoxicated state was insufficient,
without more, to render the carrier liable for injuries inflicted by his assault on another passenger, adding that ostensibly
peaceable intoxication does not put a carrier on notice of the possibility of physical danger to other passengers. The court said
that the consumption of alcohol before and during travel by rail is not unusual, and, unless some reason beyond the smell of
alcohol on the breath and slurred speech exists to believe that a particular inebriated passenger poses a threat to the safety of
others, a carrier is not liable for resultant injuries.
In the following cases, which involved an assault on a passenger by an intoxicated passenger, the courts held that the
intoxication of a passenger, in itself, does not justify or require a carrier employee to exclude or expel the passenger.
In Lige v Chicago, B. & Q. R. Co. (1918) 275 Mo 249, 204 SW 508, an action by a train passenger assaulted by an
intoxicated passenger, although the court recognized the general rule that a carrier is liable to a passenger for injuries inflicted
by any cause if it could have been prevented by the exercise of the highest degree of care, the court stated that the rule does
not absolutely bar an intoxicated man of his right to ride on the railroads nor authorize a railroad company to exclude him
from its trains unless his conduct is such as to cause the railroad employees to apprehend danger from him to his fellow
passengers. Responding to the contention that the conductor and brakeman violated a state statute, which provided that it was
unlawful for any person to enter a passenger train while intoxicated and which provided that it was the conductors duty to
report all intoxicated persons to the county prosecuting attorney, the court stated that the statute was only applicable to the
conductor and the intoxicated person and was not applicable to the railroad company, and that the railroad companys duty

with respect to an intoxicated passenger was governed by the common law.
In Putnam v Broadway & S. A. R. Co. (1873) 55 NY 108, an action arising out of the death of a streetcar passenger who was
killed by an intoxicated fellow passenger, the court stated that the fact that an individual may have drank to excess will not, in
every case, justify his expulsion from a public conveyance, the court adding that it is rather the degree of intoxication, and its
effect on the individual, and the fact that, by reason of the intoxication, he is dangerous or annoying to the other passengers,
that gives the right and imposes the duty of expulsion.
In Brehony v Pottsville Union Traction Co. (1907) 218 Pa 123, 66 A 1006, an action by a streetcar passenger who was kicked
by an intoxicated passenger who was being ejected by the conductor, the court, rejecting the plaintiffs contention that the
conductor was negligent in allowing the assailant to enter the car, said: It is the duty of a conductor to exercise a watchful
care for the safety of his passengers; and this duty may require him under certain conditions to refuse to admit into his car a
person applying. . . . If one applying for admission bears upon his person signs convincing to the ordinary mind that he is
afflicted with a dangerous and contagious malady, it is manifestly the duty of the conductor to exclude him. . . . But such
danger cannot be affirmed of admitting a person who is simply intoxicated. Intoxication is not infectious; nor does it so
ordinarily express itself in violence that disturbance of the peace of the car is to be reasonably apprehended when an
intoxicated person is admitted. There may be, and doubtless are, exceptional cases where the intoxication is so gross, the
condition resulting therefrom so offensive, the conduct of the individual so unbecoming and violent, as to justify, and indeed
require, his exclusion.
The following cases, in which an intoxicated railroad passenger assaulted another passenger, support the view that a railroad
company employee has the duty to use reasonable care to prevent an intoxicated person from boarding or the duty to eject or
to observe carefully any person in an intoxicated condition on the train.
See also King v Ohio & M. R. Co. (1884, CC Ind) 22 F 413 (applying Indiana and federal law), an action for damages arising
from the death of a train passenger who was shot by a fellow passenger, where the court stated that by the common law and
Indiana statutes the conductor was invested with police powers and had the power to have the offender arrested, disarmed,
restrained, or removed from the train. The court pointed out that Indiana statutes provided that whoever is found in a public
place in a state of intoxication and whoever draws, or threatens to use, any pistol, . . . shall be deemed guilty of a
misdemeanor. The court declared that these powers, whether conferred by statute or deduced from the principles of law, are
given for the safety of those who travel by railroad, and any failure in a proper case to exercise them, contributing to the
injury of a passenger, is a breach of the carriers contract, for which damages may be allowed.
In Memphis, D. & G. R. Co. v Trussell (1916) 122 Ark 516, 183 SW 981, an action by a female passenger who was assaulted
by a drunken male passenger, the court held that the trial court properly instructed the jury that it was the railroad companys
duty to arrest any person found in an intoxicated condition on the train and to use reasonable care to prevent intoxicated
persons from boarding its trains, and further that, if the railroad companys servants knew, or in the exercise of reasonable
care should have known, that the male passenger was drunk, and liable to assault or annoy other passengers on the train, the
male passenger should not have been permitted to board the train, and that, if they became aware of his condition after he had
become a passenger, it was their duty to exercise reasonable care to prevent him from annoying the plaintiff and other
passengers. Noting that a state statute constituted conductors to be peace officers for the purpose of arresting drunken persons
on their trains and delivering them to the nearest peace officer, the court stated that in the case before it the jury was
warranted in finding that the carrier failed in the performance of its duty to the plaintiff and that if the employees in charge of
the train did not know, they should have known that the assailant was drunk, and that, if he were not arrested and put off the
train as provided by the state statute, he would have required special observation if he were allowed to remain on the train.

In Grimsley v Atlantic C. L. R. Co. (1907) 1 Ga App 557, 57 SE 943, an action by a railway passenger who was shot by an
intoxicated passenger, the court approved the doctrine that a carrier has the right and the duty to eject an intoxicated person,
or a person in such condition as to induce the conductor to believe that the conduct of such person will become offensive or
annoying to other passengers.
But see Powell v Beasley (1938) 57 Ga App 231, 194 SE 926, and Pinnell v Yellow Cab Co. (1948) 77 Ga App 73, 47 SE2d
774, supra.
CUMULATIVE SUPPLEMENT
Cases:
See Pinkney v Miller (1983, La App) 439 So 2d 1113, cert den, prohibition den, mand den (La) 444 So 2d 117,
reconsideration den (La) 445 So 2d 443, 13[b].
[Top of Section]
[END OF SUPPLEMENT]
4. Carriers duty to use physical force to protect assault victim
In the following cases involving assaults on bus or streetcar passengers, the courts held that a carrier employee does not have
the duty to use physical force to intervene to protect the victim, but only has the duty to summon the police.
Reversing a judgment in favor of a 14-year-old white male streetcar passenger who was assaulted by a young black female
passenger, the court, in Rodriguez v New Orleans Public Service, Inc. (1981, La) 400 So 2d 884, stated that the carriers duty
of reasonable care extends to keeping the premises safe from unreasonable risks of harm or warning persons of known
dangers, adding that when the independent, intentional tortious or criminal acts of a third person constitute the unreasonable
risk, this duty does not require the risking of physical injury or civil or criminal liability by physical intervention, but requires
only the summoning of the police at the time the third persons intention and apparent ability to execute the intended acts are
known or should reasonably be known.
In Higgins v New Orleans Public Service, Inc. (1977, La App 4th Cir) 347 So 2d 944, an action by a 67-year-old male bus
passenger who was beaten by a young male passenger, the court stated that the carrier did not have the obligation to have its
driver physically intervene in a beating, but only to summon the police as speedily as possible. The court added that even if a
driver happens to be very strong, he or she does not have the obligation to intervene. Noting that the carrier was not obliged
by its contract to provide armed guards or to hire only burly wrestlers or boxers as drivers, the court commented that if this
were true the carrier could not hire slightly built persons to drive its buses.

See also Dallas v Jackson (1970, Tex) 450 SW2d 62, a wrongful death action arising from the deliberate shooting of one
passenger by another passenger after the busdriver had stepped off the bus to call the police, where the court held, as a matter
of law, that the busdriver fulfilled his duty to the victim by stopping the bus and attempting to seek police assistance after
passengers who were arguing loudly ignored his warning that they would have to get off if they did not quiet down. Stating
that the driver owed no duty to remove, restrain, or eject the assailant, the court noted that strong-arm tactics on the drivers
part might have led to further altercation, endangering other passengers on the bus.
The following older cases support the view that a railroad conductor has the duty to use physical force to restrain or eject a
railroad passenger who is assaulting another passenger.
US
King v Ohio & M. R. Co. (1884, CC Ind) 22 F 413 (applying federal and Indiana law)
For federal cases involving state law, see state headings infra
Ga
Richmond & D. R. Co. v Jefferson (1892) 89 Ga 554, 16 SE 69
Ind
King v Ohio & M. R. Co. (1884, CC Ind) 22 F 413 (applying Indiana and federal law)
Miss
New Orleans, S. L. & C. R. Co. v Burke (1876) 53 Miss 200
Pa
Pittsburg & C. R. Co. v Pillow (1875) 76 Pa 510
In Richmond & D. R. Co. v Jefferson (1892) 89 Ga 554, 16 SE 69, an action by a colored train passenger who was beaten
and forced to dance and sing by two drunken passengers, the court held that there was no error in charging the jury that
conductors have the power of police officers and that when a person is guilty of disorderly conduct in passenger trains, the
conductor may stop the train and eject the passenger, and the conductor may command the assistance of the railroad company
employees and of the passengers on the train to assist in this removal, or the conductor may detain a disorderly passenger and
deliver him over to the authorities. Noting that a state statute gave police powers to conductors, the court stated that when it is
necessary it is incumbent on conductors to make a reasonable use of these powers.
In Hanback v Seaboard C. Railroad (1975, DC SC) 396 F Supp 80 (applying South Carolina law), an action by a female
passenger who was raped in the ladies toilet of a railroad club car by an intoxicated male passenger, the court noted that at
the time of the assault a passenger service representative was occupying a sleeping compartment in the club car and that she
testified that she heard four screams after she had been asleep for some time and that she took no action although she knew
that the ladies lounge was next to her compartment. The court stated that although the law might not require the service
representative to risk her life by confronting the rapist in attempting to rescue a female passenger from his clutches, the law
certainly required that she take some action and seek male assistance from other train personnel in investigating the cause of
the screams.
III. Liability in particular circumstances
A. Railway passengers5

In the particular circumstances of the following cases in which an allegedly intoxicated railway passenger deliberately
assaulted the plaintiff passenger, the courts held that the carriers liability was supportable.
In King v Ohio & M. R. Co. (1884, CC Ind) 22 F 413 (applying federal and Indiana law), an action for damages arising from
the death of a train passenger who was shot by a fellow passenger, the court overruled the railway companys exceptions to a
judgment in favor of the plaintiff. Noting that the testimony of the conductor and the brakeman showed that prior to the
shooting the assailant was excited, nervous, and tremulous, and laboring under the unfounded delusion of pursuit by enemies
on the train who would rob, kill, or harm him, and that he appealed to the conductor for protection, the court stated that it was
clear that the man was insane, from excessive drinking or from another cause, and that since the conductor knew that the man
had a pistol, the conductor ought to have apprehended the danger that he might mistake some passenger for his supposed
pursuer and shoot him down in imaginary self-defense. The court also noted that there was evidence that he had been
drinking on the train and had been ejected from the sleeping car for misbehavior or because of his drunken condition. The
court stated that by the common law and Indiana statutes the conductor was invested with police powers and had the power to
have the offender arrested, disarmed, restrained, or removed from the train. The court pointed out that Indiana statutes
provided that when any passenger was guilty of disorderly conduct the conductor was authorized to stop his train and eject
the passenger, using only such force as might be necessary, and might command the assistance of railroad company
employees, and provided that whoever is found in a public place in a state of intoxication and whoever draws, or threatens
to use, any pistol, . . . shall be deemed guilty of a misdemeanor. The court declared that these powers, whether conferred by
statute or deduced from the principles of law, are given for the safety of those who travel by railroad, and any failure in a
proper case to exercise them, contributing to the injury of a passenger, is a breach of the carriers contract, for which damages
may be allowed.
See King v Ohio & M. R. Co. (1884, CC Ind) 22 F 413 (applying Indiana and federal law), supra, an action for damages
arising from the death of a train passenger who was shot by a fellow passenger, where the court overruled the railway
companys exceptions to a judgment in favor of the plaintiff.
In Seaboard A. L. R. Co. v Mobley (1915) 194 Ala 211, 69 So 614, an action by a railway passenger allegedly assaulted by
two drunken men, the court affirmed a judgment in favor of the plaintiff passenger. The court stated that the evidence showed
without conflict that the assault, insult, and nervous shock sustained by the plaintiff passenger were caused by two drunken
passengers going into the ladies toilet of the car in which she was riding, cursing her, throwing her violently to the floor, and
that even after she complained to the conductor and porter, the insult and shock was prolonged by the act of the defendants
servants in confining the men in the toilet, instead of properly removing them from the car. The court said that a common
carrier owes the duty to exercise the highest degree of skill and diligence in conserving the safety of its passengers and that it
is bound to take all reasonable precautions, as judgment and foresight suggests, to make the passengers journey safe and free
from harm and insult, and is responsible to the passenger for the consequences of the slightest negligence, on the part of its
agents and servants, proximately resulting in injury and insult to such passenger. Apparently focusing on the drunken mens
conduct after they had been confined in the toilet, the court emphasized that the evidence showed that the conductor confined
them in the toilet even though they continued to be insulting and offensive in their conduct and language in the hearing of the
plaintiff.6
In Memphis, D. & G. R. Co. v Trussell (1916) 122 Ark 516, 183 SW 981, an action by a female passenger who was assaulted
by a drunken male passenger, the court held that the trial court properly instructed the jury that it was the railroad companys
duty to arrest any person found in an intoxicated condition on the train and to use reasonable care to prevent intoxicated
persons from boarding its trains, and that, if the railroad companys servants knew, or in the exercise of reasonable care
should have known, that the male passenger was drunk and liable to assault or annoy other passengers on the train, the male
passenger should not have been permitted to board the train, and that, if they became aware of his condition after he had
become a passenger, it was their duty to exercise reasonable care to prevent him from annoying the plaintiff and other
passengers. The court noted that there was evidence that the male passenger was permitted to board the train in a drunken
condition; that after trying unsuccessfully to attract the plaintiffs attention by striking and placing his feet on the arm of the
seat occupied by her, he grabbed the plaintiff by the arm in a rude and insulting manner; that the plaintiff proceeded to strike
him over the head with her umbrella, after which he left the car; that after the female passenger told the conductor of the
incident, the conductor advised her to get off the train and have the male passenger arrested; and that the male passenger
subsequently came back into the coach two more times and was each time taken out of the coach by railroad company
employees. Affirming a judgment in favor of the plaintiff, the court stated that the jury was warranted in finding that the
railroad company failed in the performance of its duty to the plaintiff.
It was for the jury to determine whether a conductor knew or, by the exercise of ordinary care, could have known from the
conduct of a drunken passenger that an insult to or an assault upon a female passenger was reasonably to be expected, and
whether in the exercise of ordinary care he could have prevented it, was the ruling in Hines v Rice (1920) 142 Ark 159, 218
SW 851 (following Missouri law), where the female passenger was grabbed by the drunken passenger after the conductor had
quarreled with the drunken passenger about his ticket. The court said that the jury was warranted in finding that the
conductor, although aware of the mans drunken condition and advised by his replies that he thought the female passenger
had his ticket, nevertheless stood blocking the female passengers escape and wrangled with the drunken passenger until the
assault occurred. The court accordingly affirmed a judgment in favor of the female passenger. The court noted that the female
passenger was occupying the seat next to the drunken passenger prior to the assault because all other seats were taken and
that the conductors testimony tended to prove that he knew that the female passenger was not the traveling companion of the
drunken man since she was not of his class. The court distinguished Lige v Chicago, B. & Q. R. Co. (1918) 275 Mo 249, 204
SW 508, infra 5[b], on the ground that in the Lige Case the assault by a drunken man was sudden and without warning,
while in the present case the jury was justified in finding otherwise.
Where the plaintiff was struck or pushed from the front platform of a train by a fellow passenger, a member of a brawling
crowd, after an altercation between passengers over a crap game, the court in Terrell v Key System (1945) 69 Cal App 2d
682, 159 P2d 704, held a nonsuit reversible error, since it was a jury question whether the carrier should have taken some
steps either to suppress the crap game or to protect passengers from its consequences where the carrier knew that on previous
occasions crap games on the train had led to quarrels and even to threats of assault with a deadly weapon, adding that the
question of the plaintiffs contributory negligence was also a question for the jury, since a passenger was bound to take only
ordinary care for his own safety and the plaintiff had fled as far as he was able once the altercation broke out, and since there
was no evidence that the plaintiff had knowledge of the earlier quarrels. The court noted that the train carried workers to a
shipyard and that there was evidence that prior to the assault on the plaintiff some of the men playing the crap game were
drunk, boisterous, abusive, and quarrelsome, and that no train employee made an effort to stop the game.
In Richmond & D. R. Co. v Jefferson (1892) 89 Ga 554, 16 SE 69, an action by a colored train passenger who was beaten
and forced to dance and sing by two drunken passengers, the court affirmed a judgment in favor of the plaintiff. The court
held that there was no error in charging the jury that conductors have the power of police officers and that when a person is
guilty of disorderly conduct in passenger trains, the conductor may stop the train and eject the passenger, and the conductor
may command the assistance of the railroad company employees and of the passengers on the train to assist in this removal,

or the conductor may detain a disorderly passenger and deliver him over to the authorities. Noting that the conductor was
appealed to and refused to interfere, the court said that the defendant railroad company, through this representative, forgot
that it had the plaintiffs money in its coffers, and was under contract and obligation to carry him safely and comfortably. The
court said that it would be strange if there were no law to extend protection to passengers under the circumstances, adding
that it would follow that the good and pure women of the state would have no protection on railroad trains beyond what it
suited conductors to give them, and that they would be subject to the insults of any beasts whose liquor and lust combined for
an assault.7
In Hillman v Georgia R. & B. Co. (1906) 126 Ga 814, 56 SE 68, an action by a colored passenger who alleged that when he
was on a train car for colored people he was assaulted by a drunken white man, the court reversed a judgment in favor of the
railroad company, holding that the trial judge erred in instructing the jury that a conductor or other agent would not be
justified in expelling from a train a passenger of known bad or turbulent character, so long as such person was not guilty of
conduct seriously annoying or dangerous to other passengers. The court declared that a passenger does not have to be in
serious danger before the duty of the conductor to protect him arises. The court also held that the trial judge erred in charging
that if a passenger is guilty of boisterous and improper conduct, but desists from it after the conductors request,
remonstrance, or command, the conductor would not be justified in expelling him from the train after he had so desisted, the
court stating that the charge omitted any consideration of the question whether the conductor in the present case made a
request or remonstrance or command in due time and in the proper manner for the protection of the other passengers. Finally,
the court held that the trial judge erred in not making any reference to the issue whether the assailant was allowed to remain
in a car where he had no lawful right to be and to assault the plaintiff who was lawfully there. Noting that a state statute
required that railroad employees should not permit white and colored passengers to occupy the same car and that railroad
employees had power to eject from the car any passenger who refused to remain in the car or seat that might be assigned to
him, the court stated that if the assailant had no right to be at the place where the assault allegedly occurred, and the plaintiff
did have such a right, the conductor should have dealt with the situation with the requirements of the law in view. The
plaintiff alleged that when the assailant boarded the train he was drunk and cursed and abused the passengers and brandished
a pistol, and that the conductor heard his language and saw his conduct, but did not arrest or put him off the train; that the
assailant then went into the car for colored people where he drew a pistol, cursed, and threatened to shoot the plaintiff, and
drove the latter from his seat and out of the car, all in the presence of the conductor, who the plaintiff asked for protection, but
who failed to protect him.8
In Pittsburgh, C., C. & S. L. R. Co. v Richardson (1907) 40 Ind App 503, 82 NE 536, the court made the following statement
in holding that a carrier was liable for a gunshot wound inflicted on a minor passenger by a fellow passenger, in the presence
of a brakeman who made no effort to prevent the assault: It is the duty of a common carrier to protect a passenger from the
unprovoked assault of a fellow passenger, if there is reason to believe that it is threatened and can be prevented. This duty
springs from a condition created by a third party, coupled with a knowledge by the carriers servants that the condition exists,
and with time enough intervening between the acquisition of the knowledge and the infliction of the injury to enable the
servant of the carrier to protect the passenger from the third partys misconduct. The plaintiff alleged that prior to the
shooting the assailant was intoxicated and boisterous and that the assailant fired a shot toward the plaintiff although the
plaintiff had given him no provocation. Affirming a judgment in favor of the plaintiff, the court stated that there was evidence
from which the jury could reasonably infer that the brakeman had knowledge of the assailants intention to shoot and that he
was near enough to him to have prevented his shooting.
In Starr v Chicago, B. & Q. R. Co. (1912) 156 Iowa 311, 136 NW 524, it was held that where the previous conduct of a
drunken passenger was such that the train crew should have anticipated an assault on the plaintiff, the carrier was liable to the
latter for the injury to him resulting from its failure to exercise its authority to enforce peace and order. The court noted that

there was evidence that prior to the assault on the plaintiff, the assailant made a nuisance of himself by walking up and down
the aisle trying to persuade others to drink with him or to engage in a game of craps; that on being refused by the plaintiffs
younger companion, the assailant struck him; that after the plaintiff told the assailant to leave his companion alone, the
plaintiff was attacked; that the assailant was taken aside by his friends, but soon broke away and renewed his assault on the
plaintiff; and that the conductor and brakeman came into the car about the time the assault was made, or while the struggle
was in progress, but did not attempt to assist or protect the plaintiff.
In Louisville R. Co. v Wellington (1910) 137 Ky 719, 126 SW 370, wherein it appeared that the plaintiff was assaulted by
drunken and disorderly negro passengers on the defendants car, the court approved of the following instruction: If the jury
believe from the evidence that the conduct of the negroes, by whom plaintiff claims to have been insulted and assaulted on
the occasion in the evidence referred to, was such on defendants car, and prior to the happening of the alleged assault, as
would induce a reasonably vigilant and prudent conductor to have anticipated that such assault might be made, then it became
the duty of such defendants conductor, in the exercise of the utmost vigilance, to use all reasonable means to protect the
plaintiff from indignity and assault from said negroes, and if you shall believe from the evidence that the defendants
conductor, under such circumstances, failed to use all reasonable means to prevent such indignity to or assault upon the
plaintiff, and that by reason of such failure on the part of defendants conductor the plaintiff sustained insult, assault, or injury
from said negroes on the occasion in the evidence referred to, the law is for the plaintiff, and the jury should so find. The
court entered an order reversing a judgment for the plaintiff on the ground that the damages awarded were excessive.
However, on rehearing, in Louisville R. Co. v Wellington (1910) 137 Ky 726, 128 SW 1077, the court set aside its order of
reversal and affirmed the judgment in favor of the plaintiff, holding that the railway companys bill of exceptions was not
filed in time and that the pleadings supported the judgment.
In Louisville & N. R. Co. v Finn (1894) 16 Ky LR 57, an action by a colored female train passenger who was assaulted by
white male passengers who were drunk and disorderly, the court affirmed a judgment in favor of the plaintiff. The court noted
that there was evidence that one of the men held the plaintiff while the other tried to raise her clothes; that after she had
broken loose, one of the men shoved her against the wall; that prior to the assault the brakeman knew that the two men were
drunk; and that there were no train employees in the car at the time of the assault. Noting that there was also evidence that
prior to the assault on the plaintiff the assailants were trying to make a colored man drink with them and dance for them and
that the conductor and other employees passed through the car, the court stated that the train employees ought to have known
that the two assailants were drunk and misbehaving themselves. The court declared that the train employees owed to the
passengers in their charge the duty of exercising the highest degree of care, not only to protect them from injuries incident to
that mode of travel, but to protect them from the indecent and ungentlemanly conduct of a disorderly fellow passenger, the
court adding that as to female passengers the rule went further, and their conduct of passage embraced an implied stipulation
that the railroad company would protect them against general obscenity, immodest conduct, or wanton approach.
In Cincinnati, N. O. & T. P. R. Co. v Taylor (1905) 27 Ky LR 351, 85 SW 168, it appeared that a female passenger, while
passing from one coach of a train to another, was seized by the arm and frightened by a drunken man. The court held that it
was a question for the determination of the jury whether the railroad company used proper care for her protection. The court
affirmed a judgment in favor of the plaintiff. The court noted that the plaintiff testified that she was accompanied on the train
by a nurse and by her two children; that she attempted to stay in the sleeper because she was unable to find seats in the day
coach, but that the sleeping-car conductor refused to let her pay extra to stay in the sleeper and told her that she must get out;
that the railroad conductor subsequently told her that she could stay in the stateroom of the sleeper; that the sleeping-car
conductor again told her she must get out and ordered the porter to move her out; that the porter took her to the door of the
day coach, which was locked; that the porter then left her on the platform and went to get a key; and that while she was
waiting on the platform, a drunken man made signs that alarmed her and seized her by the arm.

In Jansen v Minneapolis & S. L. R. Co. (1910) 112 Minn 496, 128 NW 826, an action by a railway passenger assaulted by a
drunken passenger, the court affirmed a judgment for the plaintiff, stating that it was a question of fact for the jury to
determine whether the railway company expressed that degree of care for its passengers that was reasonably practicable
under the circumstances. The court noted that the evidence presented by the plaintiff, an elderly Catholic priest, was to the
effect that the assailant slapped him over the head with his hat and hand as the plaintiff was closing the door to the smoking
car; that when the plaintiff complained to the conductor, the conductor said, What can you do when the party has the whisky
in him?, and then went back to the baggage car without saying anything to the intoxicated man; and that the assailant then
repeated his attack two more times.
In New Orleans, S. L. & C. R. Co. v Burke (1876) 53 Miss 200, an action against a railroad company by a railway passenger
assaulted by intoxicated passengers, the court affirmed a judgment in favor of the plaintiff. On boarding the train, the
plaintiff, by permission of the conductor, located himself with his luggage in the baggage car, the rearmost car of the train.
Just as the train was leaving, four or five drunk and disorderly men entered the baggage car. All but one of the men were
railway employees who were not on duty and were traveling on employee passes. After one of these men pulled off the
plaintiffs hat, the plaintiff attempted to leave the car and was pulled violently by the arm. Disengaging himself, the plaintiff
left the baggage car and found the conductor. After the conductor and the plaintiff entered the baggage car, the assailants beat
and kicked the plaintiff. The conductor said, Gentlemen, for Gods sake, dont get me into trouble, and then abandoned the
baggage car. The plaintiff then escaped from the baggage car, and the conductor led him to the car nearest the engine. The
court declared that the power vested in railroad officials to preserve peace and good order on their trains and to eject turbulent
and disorderly persons from their trains, carries with it the absolute duty to exercise the power, when called on to do so in a
proper case by other passengers. The court observed that the carriers liability arises, not from the fact that the passenger has
been injured, but from the failure of the officials to afford protection, stating that it would be necessary, therefore, in each
case to bring home to the conductor knowledge or opportunity to know that the injury was threatened and to show that by his
prompt intervention he could have prevented or mitigated it. Noting that the power at the conductors disposal consisted of
the train hands and the willing passengers, the court stated that the conductor can never be expected to accomplish anything
more than is possible with this force and that all that could be required of him was a fair and honest effort to prevent the
wrong.
Where a male passenger entered a train in a noticeably intoxicated, boisterous and disorderly manner, and a female passenger
in the train was assaulted by the drunk without the knowledge of the conductor or the trainmen, who remained in the first car
and did not look into the second car where the assault took place, although there was a rule of the carrier that the conductor
should stand in the vestibule of the forward car so as to be able to see both cars, the court in Kinsey v Hudson & M. R. Co.
(1943) 130 NJL 285, 32 A2d 497, affd 131 NJL 161, 35 A2d 888, stating that it was the peculiar province of the fact-finding
tribunal to determine whether the defendant exercised the degree of care the law imposed upon it where the court sat without
a jury, held that under the circumstances of the case it was not error for the trial court to determine that the railroads
employees had not exercised the requisite degree of care to prevent the injury that occurred.
In Stanley v Southern R. Co. (1912) 160 NC 323, 76 SE 221, an action against a railroad company by a white passenger
assaulted by Negro passengers, the court reversed a judgment of nonsuit. The court noted that there was evidence that prior to
the assault Negro passengers were drinking and shooting guns in the colored cars; that the plaintiff, who was in the front end
of a white car, saw a white man being beaten in the colored car; and that when the plaintiff attempted to help the white
victim, the Negro passengers struck and shot him. Pointing out that the only railway employees on the 14-coach train were an
engineer, fireman, flagman, conductor, and trainmaster, the court stated that it might be said as a matter of law that the
conductor and trainmaster were not force enough to preserve order in a mixed excursion train of 14 coaches, especially since

some of the passengers were white and some colored, and there was drinking and rowdyism that might reasonably have been
anticipated. The court rejected the contention that the plaintiff was guilty of contributory negligence as a matter of law in
going into the colored car, the court stating that in rescuing the victim the plaintiff was simply obeying the ordinary dictates
of humanity.
In Hanback v Seaboard C. Railroad (1975, DC SC) 396 F Supp 80 (applying South Carolina law), an action by a female
passenger who was raped in the ladies toilet of a railroad club car by an intoxicated male passenger, the court ordered
judgment entered against the National Railroad Passenger Service (Amtrak). 10 The court noted that at the time of the assault
the one Amtrak employee on the train, a passenger service representative, was occupying a sleeping compartment in the club
car; that the service representative testified that she heard four screams after she had been asleep for some time and that she
took no action, although she knew that the ladies lounge was next to her compartment; and that the service representative
refused to come out of her quarters after the plaintiff had been rescued. The court stated that although the law might not
require the service representative to risk her life by confronting the rapist in attempting to rescue a female passenger from his
clutches, the law certainly required that she take some action and seek male assistance from other train personnel in
investigating the cause of the screams. The court added that although the failure of the service representative to aid or to seek
aid for the plaintiff did not cause the attack or all of the plaintiffs subsequent physical and emotional injuries, the service
representatives failure to act, after being put on notice by the screams, certainly aggravated and prolonged the attack causing
additional injuries to the plaintiff.
In Anderson v South Carolina & G. R. Co. (1908) 81 SC 1, 61 SE 1096, the court, in affirming a judgment for the plaintiff,
approved of an instruction to the effect that if the carrier knew or had reasonable grounds for suspecting that danger would
arise in handling a large number of passengers, it was bound to exercise the highest degree of care to provide a sufficient
force of employees to control the crowd and prevent assaults on innocent passengers, even though such requirement would
necessitate the employment of an additional force of servants; and that the carrier was liable in damages for a failure to
perform that duty, if it resulted in an injury to a passenger without fault on his part. It appeared in that case that the plaintiff
was shot in the leg by a fellow train passenger while the latter was engaged in a riot. The court rejected the contention that the
trial judge erred in his charge by implying the presence on the train of boisterous and drinking passengers, the court stating
that there was no dispute about that fact, adding that the controversy was whether the carrier was responsible for an injury
inflicted by one of such passengers on another passenger.
In Spires v Atlantic C. L. R. Co. (1912) 92 SC 564, 75 SE 950, an action by excursion train passengers who were stabbed and
shot by a fellow passenger who was apparently intoxicated, the court noted that it appeared that prior to the assaults disorder
and violence had developed on the train to the point of rioting. Recoveries for the plaintiffs were upheld, although the
trainmen had good reason to believe that any effort by them to enforce order would increase the danger to innocent
passengers. The decision was based on the ground that the carrier should have provided an adequate force to police the train,
and that the crew should have run the train back to a station near the scene of the disorder, or should have demanded the
assistance of officers at stations passed on the trip.9
In St. Louis, I. M. & S. R. Co. v Hatch (1906) 116 Tenn 580, 94 SW 671, both the railroad company and a Pullman company
were held liable for an assault on a woman in a Pullman car by two allegedly intoxicated men who were presumably fellow
passengers, where none of the employees of either company appeared in the car for several hours, though bells were rung to
call them. Responding to the contention of the railroad company and the Pullman company that they could not be charged
with negligence since they had no reasonable ground for suspicion that the assailants would enter the sleeper and commit the
wrong, the court stated that this principle comes into play only when the carrier is diligent in discharge of its general duty to
its passengers.

The court, in International & G. N. R. Co. v Henderson (1904, Tex Civ App) 82 SW 1065, affirmed a judgment in favor of a
colored railway passenger who was assaulted by drunken white passengers. The plaintiff alleged that when he was seated in a
car set apart for the use of colored passengers, several intoxicated white men invaded the car in which he was sitting to use it
as a smoking car; that these men cursed and swore in the presence of the plaintiff, his wife, and several colored women; that
the plaintiff remonstrated with the white men and was then cursed and vilified and marched through the train at the point of
pistols and compelled to get off the train at the next station; that the plaintiff then caught the last car on the train and seated
himself as a passenger, but was again compelled to march through the train, to dance for the amusement of fellow passengers,
and to get off the train at the next station; that the plaintiff then appealed to the conductor for protection; that the conductor
told the plaintiff that he could do nothing for him and that he should get on the baggage car; that the plaintiff again got on the
train, but the same white men compelled him to get off the train and did not allow him to get on the train again; and that the
plaintiff appealed to the conductor and the other train men, but was told that they could do nothing for him. Rejecting the
railroad companys contention that the trial judge erred in refusing to give a charge to the effect that the jury should return a
verdict in favor of the railroad company because the evidence failed to show that the plaintiff suffered any physical and
bodily injury, the court stated that the evidence did not show only mental anguish, but showed an unjustifiable assault made
by drunken passengers on the plaintiff when he should have been afforded protection by the conductor and the employees in
charge of the train. The court stated that these train employees knew of the assault that was being committed, the court adding
that there was no excuse for the conduct of the railway company in not resorting to some means to afford protection to the
plaintiff from the assault.
Although there was allegedly an assault by an intoxicated railway passenger on another passenger, and the assaulters
conduct was apparently directed toward the plaintiff passenger, the courts in the particular circumstances of the following
cases held that the liability of the carrier was not established.
Stating that a sleeping car company was not regarded as a common carrier but that the rules applying to common carriers
were applicable to it, the court in Hicks v Scott (1941) 48 Cal App 2d 481, 120 P2d 107, where the plaintiff was injured when
he was pulled from an upper berth by a fellow passenger after an altercation with respect to who was the proper occupant of
the berth, held that it was reversible error to prevent the Pullman company from showing that all persons on the train were
comporting themselves in a peaceable and orderly manner, since the trial judge had made a finding that for some time
immediately prior to the assault a number of other passengers occupying the coach in which the assault took place had been
indulging in intoxicating liquor and were acting in a generally noisy and boisterous manner, all of which was known by the
defendants employees. The court noted that the only evidentiary support for the trial courts finding was a general statement
by the conductor that They were a pretty drunken bunch. Stating that a corporation engaged in running sleeping coaches
with sections separated from the aisle only by curtains was bound to have an employee charged with the duty of carefully and
continually watching the interior of the car while the berths were occupied by sleepers, the court said that that rule did not
apply in this case, since the reason for it did not exist because the train had been chartered by a fraternal organization of men,
and the passengers were all members of that organization and no reason appeared for expecting the passengers to assault each
other or commit other unlawful acts toward each other, adding that in this case the question was one of fact as to whether the
circumstances as they developed and were made known to the agents of the sleeping car company required precautions
against violence.

Complaints by a passenger against a railway company and a sleeping car company alleging that the passenger was assaulted
by a drunken fellow passenger and that the conductors in charge of the train and the sleeping car prior to the assault knew that
the assailant was under the influence of intoxicants were held subject to general demurrer, in Powell v Beasley (1938) 57 Ga
App 231, 194 SE 926, since the complaints failed to allege facts that would have put the defendants on notice that an assault
might reasonably be expected from the assailant. The plaintiff alleged that after he had been on the train for a short while, a
man, holding a bottle in his hand, approached him and asked him to take a drink; that when he refused the man slapped him;
and that when he attempted to rise and defend himself the man struck him again. The court said that there was no
presumption that a person under the influence of liquor to the extent alleged would commit an assault without provocation,
nor would any inference be authorized from the mere fact of intoxication that a person might be reasonably expected to so
conduct himself. The court said that it was the duty of the carriers to exercise extraordinary care for the protection of their
passengers but that the rule did not apply where there was nothing to put the defendants on notice that any misbehavior might
reasonably have been anticipated. The court distinguished Richmond & D. R. Co. v Jefferson (1892) 89 Ga 554, 16 SE 69,
and Hillman v Georgia R. & B. Co. (1906) 126 Ga 814, 56 SE 68, both supra 5[a], stating that in both cases the company had
notice of the boisterous conduct. The court accordingly reversed a judgment overruling a general demurrer to the petition.
Where employees of a railroad ejected two apparently intoxicated men from a dining car because they were impertinent and
annoying to their fellow passengers, but not making threats of violence, and where one of the two men, who was sent into a
Pullman car, assaulted the plaintiff, also a passenger, the court in Sheehan v New York C. R. Co. (1940) 108 Ind App 38, 27
NE2d 100, held that the evidence did not show any failure upon the part of defendants servants to exercise due care to
protect the passenger from the attack, adding that the conduct of the two men was not such as would cause trainmen under
similar circumstances to anticipate that the safety of passengers in the Pullman coach into which the two men were put would
have been imperiled by further misconduct on their part.
In Felton v Chicago, R. I. & P. R. Co. (1886) 69 Iowa 577, 29 NW 618, an action arising from the death of a railway
passenger who was assaulted by drunken men, the court reversed a judgment on a verdict in favor of the plaintiff on the
ground that the general verdict was in conflict with the jurys special findings. The court stated that the evidence tended to
show that the decedent purchased an excursion ticket to attend a circus and on his return trip was forced to ride in a freight
train with no railing; that he was a sober and peaceful young man; that there were quarrelsome and drunken men on the car
on which the decedent was riding who got into an altercation with him and assaulted him and threw or shoved him from the
car; and that there was no circumstance calculated to warn the defendants employees of the assault, other than the conduct of
the assailant, which was unknown to the employees. The plaintiff alleged that the railway company negligently furnished cars
for the use of the decedent and other passengers of insufficient and dangerous character and did not provide sufficient
protection, through employees, to defend the decedent from his assailants. The jury found that there was nothing to justify an
expectation or fear of danger to the decedent on the part of the carrier or its employees.
In Kinney v Louisville & N. R. Co. (1896) 99 Ky 59, 34 SW 1066, an action by a passenger against a railway for failing to
protect the plaintiff from violence and robbery at the hands of a fellow passenger, the court affirmed a judgment in favor of
the railway. The court noted that the evidence showed that the plaintiff and his assailant had been drinking prior to boarding
the train; that prior to the alleged assault and robbery when the plaintiff was sitting in the ladies coach, the assailant cursed
and swore at him and put his hands on him; that when the conductor ordered both men into another car, the assailant took the
plaintiff by the hair and pulled him out of his seat; that while the conductor was standing between the plaintiff and the
assailant, trying to pacify the assailant, the assailant drew his pistol and pointed it at the plaintiff, threatening to shoot the
plaintiff if he did not pay him money; that when the train reached a station, the conductor called a policeman who arrested the
assailant; that the plaintiff testified that he and the assailant lived in the same neighborhood and were good friends; and that
the assailants threats and conduct toward him proceeded from whiskey.

In Louisville & N. R. Co. v Renfros Admr (1911) 142 Ky 590, 135 SW 266, an action arising from the death of a colored
railroad passenger who was shot by an intoxicated white passenger in the colored compartment, which was brought on the
ground that the railway company subjected itself to liability for the colored passengers death by permitting the white
passenger to remain in the colored compartment in violation of a separate coach statute, the court reversed a judgment in
favor of the plaintiff. The statute provided that if the conductor or manager of a train permitted white or colored passengers to
be or remain in a coach or compartment set apart for the other race, after he knew or had information that they were in such
coach or compartment, the railway company would be liable in damages if any passenger rightfully occupying his coach or
compartment were injured or killed by a passenger who was permitted to remain in a coach or compartment set apart for the
use and occupancy of the race of which he was not a member. The court noted that prior to the shooting the plaintiff and the
assailant were seen engaged in conversation and that there was no quarrel or disturbance between them, and noted that the
colored porter testified that he saw the assailant in the colored compartment a few minutes before the shooting, but did not
request him to leave and did not inform the conductor that he was in the colored compartment. Holding that a motion for a
peremptory instruction should have been sustained, the court emphasized that there was no evidence that after the porter first
saw the assailant it was practicable for him within a reasonable time to notify the conductor or that it would have been
practicable for the conductor within a reasonable time after receiving the information, if it had been conveyed to him, to have
ejected the assailant before the difficulty.
In Hale v Chesapeake & O. R. Co. (1911) 142 Ky 835, 135 SW 398, it appeared that a conductor requested an intoxicated
white passenger to leave a coach reserved for colored persons, and that he went out quietly. It was held that the railway
company was not liable for an assault by him on a colored woman after he returned to the car without the conductors
knowledge. The court noted that there was evidence that when the white passenger first came in the colored compartment he
threw water in the aisle, that the conductor then suggested that the white passenger leave the colored compartment, and that
after leaving the compartment, the white passenger returned and put his arm around the plaintiff. Although the court stated
that where a passenger has been drinking and becomes violent or disorderly or is wandering about the train and indicates by
his manner that insult or violence will naturally follow unless prompt action be taken by those in charge of the car to restrain
him or put him off the train, the carrier might be liable for his bad conduct, the court emphasized that in this case no facts
appeared from which it could be reasonably inferred that the white passenger would be guilty of the insult that he
subsequently offered. The court emphasized that the plaintiff did not claim that she reported to the conductor the fact of the
white passengers throwing water on the floor. The court accordingly affirmed a judgment in favor of the railway company.
In Payne v Moore (1922) 196 Ky 454, 244 SW 869, a carrier was held not liable to a female passenger for an assault on her
by a fellow passenger which was committed in the absence of a conductor or a brakeman on the defendants train, where the
assailant had been orderly and there was nothing to indicate that he would be violent up to a minute or two before the assault
took place. The court concluded that the assault was sudden and unexpected and could not have been foreseen and prevented
by the utmost care on the part of those in charge of the train. The court noted that prior to the assault on the plaintiff the
assailant got into a fight with another passenger about the middle of the coach, that another passenger separated the
combatants, and, while the other passenger was taking the assailant down the aisle for the purpose of ejecting him, the
assailant struck the plaintiff in the face; that the plaintiffs daughter, who was also a train passenger, testified that the assailant
was either drunk or crazy; and that other passengers testified that from the time the assailant first got into the scuffle in the
middle of the car until the plaintiff was struck by the assailant, possibly a minute elapsed.
In Peak v Louisville & N. R. Co. (1927) 221 Ky 97, 297 SW 1107, an action by a railway passenger shot by another
passenger, the court, holding that the trial judge properly instructed the jury to find for the railway company, affirmed a
judgment in favor of the railway company. The court noted that in addition to shooting the plaintiff, the assailant stood up in
his seat and shot and killed a passenger seated just in front of him and shot and severely wounded a passenger just across the

aisle. Although the court pointed out that prior to the shooting it was obvious that the assailant was drinking and that he had
been somewhat loud and boisterous and possibly playful on the train, the court stressed that he was not shown to have been
profane or obscene nor to have displayed any temper or ill will towards anyone on the train. Noting that the assault was not
committed in the presence of any of the train crew, the court concluded that the assailant had done nothing that would have
induced a reasonably prudent and vigilant member of the train crew to anticipate that he would indulge in any such violence
as he did.
In Pugh v Washington R. & E. Co. (1921) 138 Md 226, 113 A 732, a directed verdict for defendant was sustained
notwithstanding that the plaintiff, a woman railroad passenger, had made an outcry when a fellow passenger reached under
the seat and felt of her leg, but apparently accepted his explanation that he was trying to warm his hands at the heater under
the seat, and he shortly afterwards repeated the act, when he was seized by an employee of the carrier and after a struggle
made to release his grasp, it appearing that her first outcry and the circumstances attending were not such as to attract the
attention of her friends who were seated near her. The court noted that the assailant was one of a group of men who entered
the railroad car in a boisterous and loud manner and that some of them were seen to have drunk whiskey while in the car. The
court stated that there was no evidence showing that the conductor knew, or with proper care could have known, of the
imminence of the assault in time to have prevented it.
In Illinois C. R. Co. v Minor (1892) 69 Miss 710, 11 So 101, an action by a train passenger assaulted by drunken fellow
passengers on a Sunday excursion train, the court, reversing a judgment in favor of the plaintiff, held that the trial court erred
in instructing the jury that railroad companies are bound to exercise very great vigilance and care in maintaining order,
guarding passengers against violence, from whatever source arising. The court rejected the plaintiffs contention that if the
charge was erroneous, its hurtfulness was cured by other instructions in which the jury was told that reasonable care and
diligence was the measure of the railroads accountability.
In Spinks v New Orleans, M. & C. R. Co. (1913) 106 Miss 53, 63 So 190, it was held that a carrier was not liable for an
assault on the plaintiff by an intoxicated passenger, where it appeared that the conductor placed the offender in a baggage car
and requested the plaintiff and another passenger to help care for him, and there had been nothing in the previous conduct of
the assailant to indicate that he was dangerous to anyone but himself.
In Utterback v St. Louis & S. F. R. Co. (1916, Mo) 189 SW 1171, an action by a train passenger allegedly assaulted by other
passengers who were drunk, the court reversed a judgment in favor of the plaintiff and remanded the case on the ground that
the trial judge erred in instructing the jury that if the conductor failed to prevent or keep the drunken passengers from
approaching the plaintiff or failed to protect him from them, the jury should find for the plaintiff. The court stated that even if
it were conceded that the conductor knew or could have known by the exercise of ordinary care that threats and assaults were
made on the plaintiff by the passengers, all the law required was that the conductor, after he acquired such knowledge, should
have exercised the highest degree of care that a very prudent person engaged in a similar business would have exercised
under similar circumstances in order to have prevented the assaults on the plaintiff. The plaintiff alleged that after the
passengers had assaulted him, he drew his pistol; that the conductor then disarmed him; and that after the assailants again
assaulted him and threatened to kill him, he jumped from the moving train.
In Lige v Chicago, B. & Q. R. Co. (1918) 275 Mo 249, 204 SW 508, an action by a train passenger assaulted by another
passenger who was intoxicated, the court reversed a judgment in favor of the plaintiff, stating that the evidence failed to show
that the conduct of the assailant prior to the assault was such as to warn the conductor or anyone else on the car that the
assailant was in a bad humor or that he intended to insult or to do violence to anyone. The court noted that there was evidence
that the plaintiff and the assailant were perfect strangers; that the assailant was intoxicated when he boarded the train, with his

shirt slightly torn; and that while on the train, apart from his intoxication, joshing, and talking, the assailant was guilty of no
improper conduct until he suddenly and without cause picked up an iron wrench near a stove in the smoking car and struck
the plaintiff. The court declared that a carrier is not liable for an injury to a passenger caused by an impending danger if the
danger is not discernible by the exercise of the utmost practicable care. Responding to the contention that the conductor and
brakeman violated a state statute, which provided that it was unlawful for any person to enter a passenger train while
intoxicated, which provided that it was the conductors duty to report all intoxicated persons to the county prosecuting
attorney, and which provided that the statute was not applicable to dining or private cars, the court stated that the statute was
only applicable to the conductor and the intoxicated person and was not applicable to the railroad company, and stated that
the railroad companys duty with respect to an intoxicated passenger was governed by the common law. The court also held
that the statute was unconstitutional because of its exclusion of dining and private cars. 11
In Craig v New York C. R. Co. (1936) 272 NY 610, 5 NE2d 356, where the court, without opinion, affirmed the dismissal of
a complaint against a railroad alleging that the plaintiff was a passenger on the defendants train that was standing in a
station, that the plaintiff was struck without provocation or warning by an intoxicated person who had been permitted to
board the train, and that no employee of the defendant was in the car at the time of the assault.
In German-Bey v National R. Passenger Corp. (1983, CA2 NY) 703 F2d 54 (applying New York law), an action against two
carriers by a train passenger who was slashed in the face and hand by an intoxicated passenger with a knife, the court ordered
a judgment in favor of the plaintiff reversed and dismissed on the ground that the carriers had no reason to anticipate, and
therefore to take preventive measures against, such an assault. The court noted that the assailant boarded the train in
Washington, D.C. without an assigned seat; that he asked the conductor whether he could board without a reservation; that a
coach attendant located a seat for him; that while the assailant did not appear intoxicated to the conductor, the coach attendant
thought otherwise from the smell of alcohol on the assailants breath and his slurred speech; that the coach attendant stated
that when he passed through the car on the way to the dining coach the assailant was sitting peacefully in his seat; that the
assailant consumed the contents of a pint flask of vodka between the time, less than half an hour, that the train left
Washington, D.C. and the time it left Alexandria, Virginia; and that after the train left Alexandria he sat down in the empty
seat next to the plaintiffs daughter, mumbled something to her, and then returned to his original seat; and that shortly
afterward, he charged up the aisle, cursing and shouting racial epithets, and assaulted the plaintiff. The court also noted that
no train personnel had been in the car since the train left Alexandria. The court stated that the mere fact that the carrier
employees allowed the assailant to board the train in an intoxicated state was insufficient, without more, to render the carrier
liable for injuries inflicted by his assault on another passenger. The court added that the consumption of alcohol before and
during travel by rail is not unusual, and, unless some reason beyond the smell of alcohol on the breath and slurred speech
exists to believe that a particular inebriated passenger poses a threat to the safety of others, a carrier is not liable for resultant
injuries.
In Mills v Atlantic C. L. R. Co. (1916) 172 NC 266, 90 SE 221, an action by a train passenger assaulted by an intoxicated
fellow passenger, the court, reversing a judgment for the plaintiff, held that a judgment of nonsuit should have been entered
in favor of the defendant railroad company. The court noted that there was evidence that prior to the assault the assailant, who
had been drinking, on going into the baggage car to look for his valise, stumbled over a basket of eggs belonging to the
conductor; that the assailant was very apologetic and insisted on paying for the eggs, and, on being told that he was not
allowed to ride in the baggage car, took his seat in the coach; that approximately an hour later, the plaintiff, who was also
drinking, had an altercation with the assailant and the fight ensued; that as soon as the conductor heard of it he sat down by
the assailant, who was then behaving quietly; and that the conductor later turned the assailant over to local police officers.
The court declared that a railroad company is not liable for injuries that, in the exercise of a high degree of care, could not
have been reasonably foreseen and prevented. Emphasizing that when the conductor saw the assailant there was nothing in

the assailants condition or conduct to give indication that he was at all quarrelsome or unruly, the court concluded that no
breach of duty had been established.
In Kerns v Pennsylvania R. Co. (1951) 366 Pa 477, 77 A2d 381, an action by a train passenger who was allegedly pushed
down steps in a railway station by a drunken man, 12 the court reversed a judgment in favor of the passenger and entered a
judgment for the railroad company, holding that there was no basis in law for holding the railroad company liable. The court
stated that the trial judge erred in instructing the jury that if the railroad company knew or should have known of the presence
of the alleged offender in the station in his drunken condition, the railroad company should have protected the plaintiff, and
its failure to do so rendered it liable. The court stated that the proper rule is that a carrier is liable for injuries to a passenger
resulting from the negligent or unlawful acts of a fellow passenger if prior to the accident the conduct of the offending party
has been such as to indicate a disposition to indulge in physically violent conduct and give rise to a reasonable apprehension
of injury to other parties. The court noted that after the plaintiff got off the train, he noticed two intoxicated men in the
waiting room, talking loudly and waving their hands; that after the plaintiff had spent 20 to 30 minutes in the station, he
started to walk down stairs leading to a subway; and that he was pushed from behind by one of the intoxicated men. Stressing
that the plaintiff proved nothing more than that a drunken man was present in the railroad station for a period of 20 minutes,
and stressing that the alleged assailant gave no indication of a violent disposition during that time, the court concluded that
the assailants conduct was not of such a nature that the railroad company should have known he was likely to cause injury to
others.
In Anderson v South Carolina & G. R. Co. (1907) 77 SC 434, 58 SE 149, an action against a railroad company by a
passenger who was allegedly shot in the leg by another passenger who was apparently intoxicated, the court reversed a
judgment in favor of the plaintiff and remanded for a new trial. 13 The plaintiff alleged that the carrier was negligent in that it
failed to supply sufficient coaches to accommodate the passengers; that it permitted white and colored passengers to ride in
the same coach; that it did not have a sufficient force of employees on the train; and that it failed to protect the plaintiff from
violence, as a result of which the plaintiff was shot by one of the Negro passengers in the coach immediately in front of the
car in which the plaintiff was riding. The trial judge had charged the jury that whenever a passenger is injured on a train,
without fault on his part, while being transported by a carrier, a presumption arises that there was negligence in the
management of the road. The court held that this instruction was erroneous, stating that no presumption of negligence can
arise from the mere injury of a passenger, but that such a presumption does arise on proof of an injury as a result of some
agency or instrumentality of the carrier, some act of omission or commission of the carriers servants, or some defect in the
instrumentalities of transportation. Emphasizing that in the case before it the injury was not caused by any agency or
instrumentality of the carrier but by the direct act of the fellow passenger, the court stated that knowledge of the existence of
the danger or of the facts and circumstances from which the danger may be reasonably anticipated was necessary to fix a
liability on the carrier for damages sustained in consequence of failure to guard against the danger.
In Stalnaker v Southern R. Co. (1935) 176 SC 408, 180 SE 357, an action to recover for damages allegedly inflicted upon the
plaintiff while he was a passenger in the defendants railroad train by an assault made on him by other passengers, the court
held that the trial court was justified by the evidence in ordering a nonsuit, since the plaintiff failed to prove any breach of
duty to him on the part of the defendant which caused the alleged injury, and since there was no evidence of negligence on
the part of the defendant which caused the alleged injury. The court noted that the plaintiff alleged that a group of drunken
and rowdy men and boys from a government camp boarded the train and that while he was sleeping in the smoker car he was
assaulted by other passengers, one of whom was from the group from the government camp. The court noted that the railroad
company alleged that the plaintiff had a poisonous snake in his possession on the train, that the snake was permitted to escape
from captivity so as to terrify the other passengers, and that the plaintiff invited assaults from other passengers.

In Ft. Worth & R. G. R. Co. v Stewart (1916) 107 Tex 594, 182 SW 893, it appeared that certain intoxicated passengers had
been engaged in an altercation with the conductor and the plaintiff, but had returned to their seats apparently pacified.
Thereafter they assaulted the plaintiff. It was held that the carrier was not, as a matter of law, bound to eject them from the
train for the plaintiffs protection. A judgment for the plaintiff was reversed because of the refusal of the trial court to give an
instruction that if the attack on the plaintiff was so sudden and of such a character that the conductor, if present, could not
reasonably have prevented it, the jury could not find a verdict for the plaintiff on account of the fact that the conductor was
not present and personally looking after the plaintiffs protection.
In Hanback v Seaboard C. Railroad (1975, DC SC) 396 F Supp 80, an action by a female passenger who was raped in the
ladies toilet of a club car by an intoxicated male passenger, the court ordered judgment entered in favor of the defendant
Seaboard Coastline Railroad.14 The court noted that the assailant was one of a group of citizen-soldiers, who were returning
after a 2-week encampment; that the plaintiff testified that she was raped before the train got to a station, again while the train
was in the station where it had stopped for 15 to 20 minutes, and again shortly after leaving the station; and that the plaintiff
was rescued after an attendant who was cleaning the club car heard her screams. Rejecting the plaintiffs contention that the
bartender was negligent in allowing the assailant to have seven drinks during the hours before midnight when the bar was
open, the court observed that from the manner in which the drinks were purchased, individually and by one person ordering
for a large group and then taking the drinks back to the group, it would have been impossible for the bartender to know how
much a person was drinking. The court said that there was no evidence that the assailant gave any indication of being
intoxicated, adding that there was insufficient proof to show that intoxication was a proximate cause of the rape. The plaintiff
contended that the railroad knew or should have known that the introduction into a passenger train of large numbers of
soldiers returning home after duty training could have been reasonably expected to cause danger to passengers and that
additional railroad employees should have been placed on the train for the protection of the passengers, citing Spires v
Atlantic C. L. R. Co. (1912) 92 SC 564, 75 SE 950, supra 5[a]. Rejecting this contention, the court distinguished Spires,
stating that a 1912 ride on an excursion train was not the same as a 1972 ride on a civilian train containing military personnel.
Noting that the plaintiff introduced evidence that the railroad operating rules provided that the toilet compartments must be
kept locked while trains are standing at the terminal and that before locking the toilets, it must be ascertained that they are not
occupied, and that the rules also provided that announcements must be made in cars approaching stations at which stops are
to be made, the court stated that the violation of these rules by the railroad did not operate as a proximate cause of the attack
on the plaintiff. The court added that it was possible that if the rules had been complied with, the attack might have been
discovered sooner, but emphasized that the railroad made a reasonable explanation for noncompliance.
In Tomme v Pullman Co. (1922) 207 Ala 511, 93 So 462, in which it was alleged that a drunken male passenger climbed or
fell into another passengers berth and injured her, the court held that the trial judge did not err in instructing the jury that for
the railway company defendants to be found liable, the plaintiff had to show that the carrier employees knew or had an
opportunity to know that injury was threatened and then failed to exercise all reasonable precautions to prevent the infliction
of such injury. The court stated that while a high degree of care on the part of the carriers servants is required to protect a
passenger while on the vehicle from injury or insult from another when the wrong is actually foreseen, only ordinary care and
prudence in foreseeing or anticipating the threatened violence or insult is required. The court said that the defendants
servants were therefore not required to be expert in ascertaining the intoxicated condition of the alleged offender or in
foreshadowing the probable consequence of his intoxicated condition. The court accordingly affirmed a judgment in favor of
the railway company defendants. Noting that there were expressions in Seaboard A. L. R. Co. v Mobley (1915) 194 Ala 211,
69 So 614, supra 5[a], not entirely in accord with its present opinion, the court said that the Seaboard Case was expressly
overruled insofar as it might conflict with its present holding.

In the following cases, under the particular circumstances presented, where the plaintiff railway passenger was apparently
deliberately assaulted by another passenger, and there was no contention that the assaulter was intoxicated, the courts held
that the carriers liability was supportable.
Affirming a judgment in favor of a sleeping car passenger who was assaulted in her berth by another passenger who had a
berth, the court, in Pullman Co. v Culbreth (1924, CA5 Ala) 2 F2d 540, 42 ALR 164, held that the trial judge properly
charged the jury that it was the sleeping car companys duty to exercise reasonable care in watching over, guarding, and
protecting the plaintiff from intruders while she occupied a berth during the usual hours for sleeping, and that if a failure to
exercise this care was the proximate cause of the assault, the carrier would be liable for the injuries sustained by the plaintiff.
The court rejected the carriers contention that the trial judge erred in refusing its request to charge that the jury could not find
for the plaintiff under the count based on the carriers negligently failing to prevent the assault if there was nothing in the
conduct of the assaulter to indicate to the mind of a reasonable person that he was liable to offer insult to the plaintiff or other
passengers in the car. Noting that the defendant carrier had a rule that required an employee to be constantly on guard during
the usual hours for sleeping, the court stated that the carrier held out to its passengers that they could sleep in safety and that
it would exercise reasonable care to afford adequate protection from harm to their persons or property. The court added that
because of the relationship thus created, the law imposed on a sleeping car company, during the usual hours for sleeping, the
duty to cause constant watch to be kept for the protection of passengers from injury. The court noted that there was evidence
that the assault continued for several minutes, during which time the plaintiff resorted to outcries and calls for help, that none
of the sleeping car employees came to her assistance till after the assault was over, and that she was rescued by a man and his
wife who occupied a berth opposite to hers.
In Hall v Pullman Co. (1918, DC Fla) 253 F 297, infra 6[b], an action against a sleeping car company by a female
passenger assaulted by a male passenger while in her berth in a sleeping car, in which the plaintiff in the first count of her
complaint charged that the porter conspired and colluded with the male passenger in the making of the assault, the court held
that the first count was good. The court stated that if an assault by the porter would make the sleeping car company liable,
then the assault by a passenger conspiring with the porter would equally make the company liable. The court accordingly
overruled the sleeping car companys demurrer to the first count.15
In Murphy v Western & A. R. Co. (1885, CC Tenn) 23 F 637, an action by a colored man who was forcibly ejected by other
passengers from the rear car of the train and dragged to the front car, the court instructed the jury that it was the duty of the
railroad company to protect its passengers from insult and injury as far as it could and that if a passenger was injured by
something that the exercise of diligence, activity, and courage would have prevented, and the officers of the train failed to
make an effort to prevent the mischief, the railroad was liable. The court also told the jury that there was evidence that the
plaintiff purchased a first-class ticket for his passage; that there were two cars on the train, the forward car (a smokers car)
and the rear car for ladies and their escorts; that the plaintiff refused the conductors request that he move into the smokers
car; and that two gentlemen, who were accompanied by ladies, and a newspaper vendor ejected the plaintiff. The court stated
that a railroad company may, where the races are numerous, set apart certain cars to be occupied by white people and certain
other cars to be occupied by colored people so as to avoid complaint and friction, but if the railroad charged the same fare to
each race, it must furnish substantially like and equal accommodations, the court adding that there is no equality of right
when the money of a white man purchases luxurious accommodations amid elegant company and the same amount of money
purchases for the black man inferior quarters in a smoking car. The court commented that it was convinced that those who
were most sensitive about contact with colored people, and whose nerves are most shocked by their presence, have little to be

proud of in the way of birth, lineage, or achievement. The jury rendered a verdict in favor of the plaintiff and against the
railroad company.
In Meyer v St. Louis, I. M. & S. R. Co. (1893, CA8 Ark) 54 F 116, an action to recover for the death of a railway passenger,
Isador Meyer, who was killed by an insane fellow railway passenger who thought that Jews were trying to kill him, the court
reversed a judgment in favor of the railway company and the sleeping car company, holding that the trial judge erred in
instructing the jury with respect to the degree of care required of a common carrier, and the carriers duty in dealing with an
insane person. The court noted that there was evidence tending to show that prior to killing Meyer the insane passenger
frequently complained that Jews were pursuing him and trying to kill him; that while Meyer was sitting in the sleeping car,
the insane passenger said to him, Its a sad thing that theyre trying to kill me, and I am a defenseless man; that this remark
was heard by the conductor; and that soon afterwards, the insane passenger shot Meyer and the conductor. The court stated
that if the defendant railway company became at any time chargeable with knowledge of the insane passengers actual
condition, the company would be charged with the duty of doing whatever a high degree of care would demand for the
protection of the other passengers on the train, the court adding that if the safety and reasonable comfort of the other
passengers would not be imperiled, the company might carry an insane person to the end of his journey, or might remove him
from the train at the first station where he might be properly cared for, but that whether he was carried on the train a longer or
shorter distance, the company was bound, so long as he was on the train, to do whatever, in the way of restraint or isolation,
was reasonably demanded for the safety and comfort of the other passengers. The court also stated that the railway company
had the legal right to refuse to accept the insane passenger as a passenger. As to the sleeping car companys liability, the court
stated that assuming, without so deciding, that the trial judge correctly instructed the jury that this company did not have the
exceptional obligations of a common carrier and only was obligated to maintain a reasonable watch to protect its passengers
from any known danger reasonably probable to arise under the circumstances, nevertheless, the trial judge erred in not
instructing the jury that the sleeping car company had the right, if need arose, to restrain or eject an insane person from the
car.
In Culberson v Empire Coal Co. (1908) 156 Ala 416, 47 So 237, an action by a railway passenger allegedly assaulted and
ejected from the train by two other passengers, the court, reversing a judgment in favor of the defendant carrier and
remanding, held that the trial judge erred in sustaining the defendants demurrer, which stated, among other things, that the
third count failed to allege the character of the danger with which the plaintiff was threatened by the two assailants and did
not allege in what manner the conductor was informed of the danger to the plaintiff or that the assault with which he was
threatened was of a dangerous character. The court stated that the third count of the complaint sufficiently averred that the
defendants servants knew of the impending danger to the plaintiff from the two assailants and knowingly failed or refused to
discharge their duty to protect the plaintiff, and that the negligence of the defendants servants resulted in the plaintiffs
injuries. The court stated that a carrier is bound to use all reasonable precautions as human judgment and foresight are
capable of to make a passengers journey safe and comfortable, adding that if a passenger is assaulted and insulted through
the negligence or the willful misconduct of the carriers servant, the carrier is responsible. The court rejected the contention
that the plaintiff was required to allege that he was without fault in bringing on the assault and that he was not the aggressor,
stating that contributory negligence is defensive matter, the nonexistence of which need not be averred in the complaint.
Affirming a judgment in favor of a white train passenger who was assaulted while on a coach for white passengers by a
Negro passenger after the plaintiff told the Negro passenger to move, the court, in Hines v Meador (1920) 145 Ark 356, 224
SW 742, held that the trial judge did not err in instructing the jury that a state statute required separate coaches for the white
and the African races and that the jury should find for the plaintiff if it found that the railroad officers knowingly permitted a
Negro passenger to ride in a compartment for white passengers, or by the exercise of ordinary care and diligence could have
known that a Negro passenger was riding among white passengers, and made no effort to expel him, and if it found that the

Negro passenger assaulted the plaintiff, unless it found that the plaintiff provoked the assault. The court noted that the train
on which the incident occurred was a passenger train operated principally for the convenience of laborers engaged in
construction work; that the plaintiff seated himself in a coach for white passengers just behind a seat occupied by two
Negroes; that after the coach filled up, the plaintiff took hold of one of the Negroes by the right arm or sleeve and told him to
go into the coach ahead; that the Negro replied that he had come in the coach first; that the plaintiff retorted that the room
was needed and there was plenty of room in the coach ahead; that the Negro then struck at the plaintiff with a knife and fled
from the coach; and that the plaintiff followed the Negro out to the front platform where the Negro cut him on the face. The
court also noted that there was testimony that showed that the train auditor ascertained, as he passed through the coach
shortly before the assault, that the Negro was wrongfully occupying a seat, and that he made no effort to get the Negro out of
the coach. The court stated that when a carrier permits a passenger to occupy a coach set apart to passengers of another race,
it will not be heard to say that it had no reason to anticipate injury to another passenger, the court adding that a violation of
the law itself is tantamount to warning that injury may result, and makes the carrier liable for any injury resulting to another
passenger, not as a cause of action based upon the statute, but from the duty of the carrier to its passengers to protect them
from harm and inconvenience.
In Evansville & I. R. Co. v Darting (1893) 6 Ind App 375, 33 NE 636, an action by a train passenger who was assaulted by
other passengers, the court affirmed a judgment in favor of the plaintiff. The court stated that the evidence proved that a
fellow passenger endeavored to quarrel with the plaintiff; that, after considerable discussion and commotion, this passenger
and several others, without cause, committed a violent assault and battery on the plaintiff; that the conductor was in the car
during the entire time; that two other passengers told the conductor that there was to be a difficulty and asked him to stop it;
that the conductor made no serious effort to prevent the attack; and that when it finally occurred in the front part of the car, he
promptly went to the rear part of the car to stop the train. The court noted that there was also evidence that a brakeman
encouraged the attack. Declaring that it is the duty of carriers to protect their passengers from violence, even from their
fellow passengers, where this can be accomplished by the exercise of proper care, the court stated that the jury might well
have found that the injury might have been prevented by proper effort on the part of the trainmen.
The evidence was sufficient to sustain a verdict for a white passenger who was assulted by a colored passenger on the
defendants railroad, held the court in Louisville & Interurban R. Co. v Garr (1925) 209 Ky 841, 273 SW 540, where a statute
imposed the duty on conductors of trains to segregate the white and Negro races, and where the plaintiff was assaulted while
he was in the Negro car without realizing the car was for Negroes, since there was evidence tending to prove that the
conductor knew the races were mixed in the car and did not attempt to separate them and tending to prove that a sign on the
Negro car read for white passengers only.
In Isenberg v New York, N. H. & H. R. Co. (1915) 221 Mass 182, 108 NE 1046, it was held that it was for the jury to
determine whether a railroad company complied with its obligation to use the highest degree of care to prevent injury to its
passengers consistent with its undertaking, where it appeared that the plaintiff had complained to the conductor and another
trainman that he was being annoyed and threatened by another passenger, and that nothing was done by them to prevent a
further assault except to ask the offender to let the plaintiff alone.
A nonsuit was held error in Skillen v West J. & S. R. Co. (1921) 96 NJL 492, 115 A 372, an action for injuries received by a
passenger on the defendants railroad who was struck by a spitball thrown by one of a number of schoolboys who were also
passengers on the train, the court saying that since there was evidence that the boys had shot spitballs on previous occasions
in the presence of the trainmen, who did not stop them or say anything to them, it was a question for the jury to determine
whether the railraod company had notice of the practice and made reasonable efforts to stop it.

In Britton v Atlanta & C. A. L. R. Co. (1883) 88 NC 536, it appeared that a colored passenger was assaulted by a white
passenger while riding on an excursion train, in a coach for white persons, where she was permitted to remain by the
conductor, though she was advised to go into a coach reserved for colored people. It further appeared that the conductor was
informed that an altercation was about to take place, but did not interfere to prevent the injury. In holding that the carrier was
liable, the court said: The carrier owes to the passenger the duty of protecting him from the violence and assaults of his
fellow passengers, or intruders, and will be held responsible for his own or his servants neglect in this particular, when, by
the exercise of proper care, the acts of violence might have been foreseen and prevented; and while not required to furnish a
police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help
sufficient to protect the passenger against assaults from every quarter, which might reasonably be expected to occur under the
circumstances of the case and the condition of the parties.
In Bedsole v Atlantic C. L. R. Co. (1909) 151 NC 152, 65 SE 925, an action against a railroad company by a train passenger
who was assaulted by a fellow passenger, the court held that there was no error in a judgment for the plaintiff. The court
noted that the plaintiff, because of the assailants threats to do him violence, secured a seat in the reserved car as a means of
protecting himself; that the conductor was told of the assailants threats against the plaintiff, was told that the plaintiff had
gone into the reserved car for protection, and was told that the assailant was a dangerous man who bore a bad reputation in
his community; that the assailant was allowed to enter the reserved car and violently assaulted the plaintiff; and that the
plaintiff killed his assailant.
In International & G. N. R. Co. v Giesen (1902, Tex Civ App) 69 SW 653, an action against a railroad company by a
passenger who was assaulted by another passenger, the court affirmed a judgment in favor of the plaintiff passenger. The
court stated that the facts, which the court did not specify, were sufficient to warrant the conclusion that the conductor could
and should have anticipated that the assault complained of would be committed, the court adding that a high degree of care
rested on the railway company to protect a passenger from an unjustifiable assault committed on him by another passenger.
In International & G. N. R. Co. v Miller (1894) 9 Tex Civ App 104, 28 SW 233, error den 87 Tex 430, 29 SW 235, the court
affirmed a judgment in favor of a female Negro passenger who was allegedly injured through the use of excessive violence
by another passenger who, having been called by the conductor to assist him, removed the plaintiff from the car set apart for
passengers of the white race and placed her in the car set apart for Negroes. The court stated that if the passenger did use
excessive and unnecessary force in removing the plaintiff, and this force was the proximate cause of the plaintiffs injuries,
and the passenger was aided and abetted in the use of such force by the conductor, the railroad company would be liable for
any injury inflicted on the plaintiff by the excessive and unnecessary force. The court declared that railway companies are
under obligations to protect their passengers from the violence of fellow passengers as far as it can be done by the exercise of
a high degree of care.
In Twichell v Pecos & N. T. R. Co. (1910) 62 Tex Civ App 175, 131 SW 243, it appeared that members of a train crew were
warned that one Childress had made an assault on the plaintiff, and that it was feared Childress was taking passage on the
train to renew the offense. Thereafter Childress conducted himself properly until he made a sudden assault on the plaintiff
when the members of the crew were not present. It also appeared that Childress had a reputation as a dangerous man, which
fact was known to the conductor. Under these circumstances it was held to be proper to refuse a peremptory instruction for
the defendant carrier, the court saying: We think it was for the jury to say whether appellees servants and employees had
such knowledge of the character of Childress, and such information of threatened assault, as would create in the mind of a
person of a very high degree of prudence and care a reasonable anticipation of an assault and injury upon appellant, and, if
so, whether, notwithstanding the ordinary demeanor of Childress just prior to the assault, such servants and employees, under
the circumstances, exercised that high degree of care to prevent the assault that the law imposes.

In Norfolk & W. R. Co. v Birchfield (1906) 105 Va 809, 54 SE 879, it was held that it was the duty of the conductor of a
train, on hearing an altercation between two passengers, to interfere to prevent further difficulty, and that for an assault on
one of the passengers by the other, thereafter occurring, the carrier was liable, the court noting that a statute made conductors
conservators of the peace. It was also held to be the duty of the conductor to prevent an assault even though he believed that
the assaulting passenger was a special officer of the railroad company. The court accordingly affirmed a judgment in favor of
the passenger who was assaulted. The court noted that although the assailant had asserted prior to the assault that he was an
agent and officer of the railroad company, the evidence failed to establish any such relation.
In the particular circumstances of the following cases in which it was contended that the plaintiff railway passenger was
deliberately assaulted by another passenger and in which there was no contention that the assaulter was intoxicated, the
courts nevertheless held that the liability of the carrier was not established.
Stating that an assault by a fellow passenger was not to be expected and a sleeping car company was not liable for negligence
in not protecting a passenger unless it or its servants had reasonable grounds for believing that an assault was imminent, the
court in Hall v Pullman Co. (1918, DC Fla) 253 F 297, supra 6[a], held that the second and third counts in a complaint,
alleging that the plaintiff, while in her berth on a sleeping car, was assaulted by a fellow passenger after the conductor and the
porter failed to respond to a bell she rang when she realized from her fellow passengers acts and demeanor that he intended
to assault her, were vulnerable to demurrer, adding that the failure of the porter or the conductor to answer the call bell was
not the natural and probable cause of the injury complained of.16
In Snyder v Colorado S. & C. C. D. R. Co. (1906) 36 Colo 288, 85 P 686, it appeared that the conductor was forcing his way
through a crowded car when he pressed the plaintiff passenger against a fellow passenger, who arose and surged against the
plaintiff so that the latter was thrown from the car and injured. In affirming a verdict which was directed for the defendant,
the court stated that although it was possible that some extremely nervous or irritable person would become angry because of
the inconvenience attendant on the crowded condition of the car, it was not in accordance with the usual and ordinary course
of events that a seated passenger would so far lose control of himself, on account of having a standing passenger crowded
against him, that he would forcibly eject the standing passenger from the car. It was therefore held that the proximate cause of
the injury to the plaintiff was the action of the irritable passenger, and that this cause could not be anticipated by the
defendants employees.
Where the plaintiff was assaulted in her berth by a fellow passenger on the defendants train, the court in Hall v Seaboard A.
L. R. Co. (1921) 84 Fla 9, 93 So 151, on rehearing, held that the railroad was not liable for the assault, since it was not
inflicted under such circumstances that it might have been reasonably anticipated or naturally expected. The court said that
the evidence failed to prove the allegations that the porter and the conductor heard the calls for assistance but failed to
respond, and that there was no allegation that under the circumstances either of them knew or could by reasonable diligence
have become aware that an assault on the passenger would take place, adding that it could not be assumed that the mere
presence of a man and a woman in a car in which there were no other passengers was a situation fraught with danger to the
woman in the absence of some external indication of the mans character.17
In Lake E. & W. R. Co. v Arnold (1901) 26 Ind App 190, 59 NE 394, the plaintiff alleged that he was ejected from a train by
fellow passengers, and was forcibly prevented on two occasions from again boarding the train, on the second occasion,
within full view of the train crew. The court admitted that a carrier is bound to exercise a high degree of care to prevent an
injury to a passenger from third persons, but held that the plaintiff failed to state a cause of action because he did not make a
general averment that he was free from fault.
In Pullman Co. v Pulliam (1920) 187 Ky 213, 218 SW 1005, an action by a sleeping car passenger who was allegedly
assaulted three times, apparently by another passenger, while she was sleeping in her berth, the court reversed a judgment in
favor of the plaintiff on the grounds that the trial judge admitted incompetent and irrelevant evidence, that a jury instruction
was erroneous, and that the verdict was excessive. The plaintiff alleged that after the first attack she gave an alarm, that after
some time the Pullman conductor appeared and assured her of protection, that a second attack was then made on her, that she
again summoned the conductor who promised to keep a watch in the car, and that when she was attacked a third time, a ring
was taken from her finger. The court held that a particular instruction, which referred to the fact that the assaults were made
by an agent or servant of the sleeping car company, was erroneous in that there was no evidence that the assaults were made
by an agent or servant of the sleeping car company and that the instruction was erroneous in that it allowed the jury to find
punitive damages.
In Mullan v Wisconsin C. R. Co. (1891) 46 Minn 474, 49 NW 249, an action by a railway passenger assaulted by a fellow
passenger, the court, holding that the plaintiff failed to make a case for the jury, affirmed an order denying a new trial. The
court noted that after a verbal altercation between the assailant and the plaintiff, the assailant struck the plaintiff; that the
struggle lasted only a few seconds until the conductor separated the parties; that after the plaintiff had washed the blood from
his face, his assailant, while passing along the aisle near where the plaintiff and the conductor were, suddenly assaulted the
plaintiff again; and that the conductor interfered promptly again and took the assailant into the baggage car. Stating that the
trial judge properly dismissed the action on the plaintiffs evidence, the court emphasized that each assault was sudden and
unexpected and that it was not shown that the parties were not separated as promptly as the circumstances would admit.
In Royston v Illinois C. R. Co. (1889) 67 Miss 376, 7 So 320, it was held that where an intoxicated negro passenger becomes
involved in an altercation with the conductor, and is assaulted by a fellow passenger because of his boisterous conduct, the
failure of the carrier to provide separate coaches for white and colored passengers cannot be deemed the proximate cause of
the negros injuries, and that the carrier is not liable therefor. Affirming a judgment for the railway company, the court noted
that after the plaintiff took his seat in the ladies car, he was invited to go to another car because of his boisterous conduct;
that he refused to enter the other car and remained on the platform where another passenger assaulted him.
In Sira v Wabash R. Co. (1893) 115 Mo 127, 21 SW 905, an action by a female train passenger who was abused and ravished
by a male passenger after they got off the train, the court affirmed a judgment in favor of the railway company. The plaintiff
alleged that her injuries were caused by her wrongful expulsion from a railway train by railway company employees. The
court noted that the evidence showed that the plaintiff was between 16 and 17 years of age; that she bought a ticket intending
to stop at Benton City; that after she boarded the train the conductor informed her that the train did not stop at Benton City,
and she would have to get off at Montgomery and wait there for another train; that during the journey her assailant engaged
her in conversation; that when the train arrived at Montgomery the assailant offered to see her safe to a hotel, to which the
conductor assented; and that instead of taking her to a hotel, he took her to a saloon where he brutally abused and ravished
her. The court stated that there was no evidence that tended to prove that Montgomery was an unsafe or inappropriate place
for a youthful and inexperienced female, traveling alone, to remain between trains. The court rejected the contention that a
train employee permitted the assailant to take the plaintiff off the train when the employee had reason to believe that the
assailant intended to assault her brutally or to offer her indignities. The court emphasized that there was no evidence that the
plaintiff or anyone else complained to the conductor of the assailants actions on the train, or that anything was said or done

by him indicating his evil intentions, more than the fact of intruding himself on her, the court noting that of this she made no
complaint, either at the time or when testifying.
Where the grandfather of a 9-year-old boy became ill on the defendants railroad and had to be removed from the train, and
the railroad employees placed the boy in the custody of a priest, a fellow passenger, who allegedly committed the crime of
sodomy on the boy, the court, in Livingston v Seaboard A. L. R. Co. (1952, DC SC) 106 F Supp 886 (applying North
Carolina law), held that the railroad was not liable for the assault on the child after the priest had taken the child to an
orphanage, adding that the defendants employees had no reason to anticipate that the priest had any intention to mistreat the
child but had the right to assume that the child would receive the best of care.
In Chancey v Norfolk & W. R. Co. (1917) 174 NC 351, 93 SE 834, the court decided that the overcrowding of a car and the
failure to light it were not the proximate causes of an assault and robbery committed therein. It was therefore held that the
railway company was not liable for the assault and robbery, where no other negligence was proved.
In Franklin v Atlanta & C. A. L. R. Co. (1906) 74 SC 332, 54 SE 578, an action against a railway company by a female train
passenger who alleged that a male passenger put his arms around her and took other liberties with her person against her will,
the court reversed a judgment in favor of the plaintiff and remanded for a new trial. The court held that the trial judge, in
charging the general proposition that a railroad company is bound to keep a watch over passengers on its train, stated too
strong a test of the degree of diligence required. The court said that it thought the jury received the impression that the carrier
was required to keep a constant watch over its passengers, not only after having information that should lead it to anticipate
misconduct and guard against it, but to maintain such watch even when it had no reason to expect anything but the good
conduct and courtesy usual among passengers on its train, in order to obtain information about the conduct of the passengers.
Where the plaintiff, while a passenger on the defendants railroad, was suddenly and unexpectedly attacked by a fellow
passenger and where, prior to the assault and before boarding the train, the plaintiff had told the brakeman and the conductor
that his assailant had previously attacked him, and plaintiff was told that it was safe for him to get on the car, the court in
Pecos & N. T. R. Co. v Twichell (1912, Tex Civ App) 145 SW 319, writ ref, held that the carrier was not liable for the assault.
Noting that before the assault occurred the conductor had made two trips through the train to see what the assailant was doing
and that at these times the assailant was acting in a peaceful manner, the court said that since the attack was abrupt and of
short duration, and even the plaintiff thought that his assailant had given up the idea of assaulting him again, the assault could
not have been prevented under the circumstances even had both the brakeman and conductor been present and observing the
parties at the time.
In Texas & P. R. Co. v Baker (1919, Tex Com App) 215 SW 556, an action arising from the assault of a Negro female railway
passenger by a white male passenger while she was seated in a coach assigned to Negroes, the court reversed the judgment in
favor of the plaintiff and remanded for a new trial. The court held that a violation of a statute providing for a separation of the
races does not make the carrier guilty of negligence per se, and therefore liable for an assault due to the violation of the
statute, unless knowledge of the violation is known to the officer on whom the statute places the duty of enforcing the
separation.
7[a] Assaulters conduct not directed toward plaintiff passengerassaulter intoxicatedLiability supportable
Where the plaintiff railway passenger was allegedly the victim of an intoxicated passengers assault, and the assaulters
conduct was apparently not directed toward the plaintiff passenger, the courts, in the particular circumstances of the
following cases, held that the carriers liability was supportable.
In Grimsley v Atlantic C. L. R. Co. (1907) 1 Ga App 557, 57 SE 943, a railway passenger alleged that the railway company
servants knew that another passenger was intoxicated and disorderly and knew that this passenger had discharged his revolver
several times on the train, but that they failed to restrain or eject him, and alleged that the intoxicated passenger subsequently
alighted at a station and discharged the revolver into one of the coaches of the train, wounding the plaintiff passenger. The
court held that it could not be said as a matter of law that the carrier was not under an obligation to anticipate that a disorderly
intoxicated passenger, who had already discharged a pistol in disregard of the safety of fellow passengers, would injure them
by further acts of violence. The court accordingly reversed a judgment sustaining the railway companys general demurrer. 18
In Spangler v St. Joseph & G. I. R. Co. (1903) 68 Kan 46, 74 P 607, it appeared that certain drunken passengers on an
excursion train had insulted and mistreated generally the other passengers, and had threatened, as soon as they reached their
station, to take revenge on those who had interfered with their disorderly conduct. It further appeared that the employees of
the defendant carrier knew of their intoxication and threats. Under these circumstances it was held that the carrier was bound
to take precautions to prevent an attack on the car after the drunken passengers had gotten off, and that it was liable for an
injury to a passenger who was struck in the eye by a heavy burr thrown through the car window by one of them.
Where drunken Negroes were disorderly on the defendants train, and started a dispute in the car where the plaintiff was
sitting, and, a race collision being imminent, the conductor put the Negroes into the next car and left them alone, whereupon
a further disturbance was begun and a battle was waged from one car to the next, the court in Louisville & N. R. Co. v
McEwan (1899) 21 Ky LR 487, 51 SW 619, held that a verdict for a female passenger who was shot by one of the Negroes
was warranted by the evidence, since the jury could have found that a shooting should have been foreseen as a reasonable
result of the crowding in the cars, the boisterous and drunken conduct of the Negroes, and the failure to completely exclude
them from the train, and that the assault might have been avoided by ordinary care on the part of the defendants conductor.
The shot that struck the plaintiff was apparently fired at another person.19
In McWilliams v Lake Shore & M. S. R. Co. (1906) 146 Mich 216, 109 NW 272, an action by a train passenger assaulted by
an intoxicated fellow passenger, the court affirmed a judgment for the plaintiff. The assailant was shooting a revolver with
blank cartridges, and the plaintiff apparently suffered powder burns as a result of a shot near where she was seated. The court
stated that the combination of the Fourth of July, a crowded train, and a revolver loaded with blank cartridges in the hands of
a drunken man with a penchant for discharging it among the passengers, was threatening and likely to cause mischief.
Pointing out that the railway companys agent, who knew the facts, possessed all the powers of a sheriff on the train, the court
stated that whether he was required, in the exercise of proper care, either to disarm the man or to keep him under such
surveillance as would be likely to prevent mischief was a jury question.
In Abernathy v Missouri P. R. Co. (1920, Mo App) 217 SW 568, the court held that where passengers have committed
boisterous and disorderly acts in the coach of a carrier for a long period of time, the carrier becomes liable for a subsequent
assault on an innocent passenger; and it cannot avoid responsibility on the ground that the trainmen did not know of such
misconduct, since in the proper exercise of their duties they should have known of it. The court noted that the plaintiff
testified that one of the intoxicated men pushed his way through the crowded aisle of the train coach, pushing others out of
his way, and shoving another passenger against the plaintiff, by reason of which she was pushed against and through the door
into the toilet. Affirming a judgment in favor of the plaintiff, the court distinguished Lige v Chicago, B. & Q. R. Co. (1918)
275 Mo 249, 204 SW 508, supra 5[b], noting that in that case the offending passenger, though showing that he was
intoxicated, was guilty of no improper conduct while in the train or on going aboard until he suddenly and without cause

assaulted the plaintiff.
In Falzarano v Delaware, L. & W. R. Co. (1937) 119 NJL 76, 194 A 75, an action by a railway passenger who was shot by a
drunken Negro passenger, the court affirmed a judgment against the railway company. The court noted that immediately prior
to the assault the assailant demanded from a passenger his (the assailants) watch, and when the passenger told him he did not
have his watch and to go away, the assailant deliberately shot at this passenger, the bullet striking the plaintiff, who had had
no prior words or dealings of any kind with the assailant. The railway company contended that because only about 4 minutes
intervened between the time the assailant got on the train and the time of the shooting, the train crew did not have sufficient
time to know he was likely to commit an assault and to prevent him from doing so. Rejecting this contention, the court
emphasized that the uncontradicted evidence was that all the time the assailant was inside the car cursing, threatening, and
assaulting passengers, and giving every indication of a cantankerous drunken man on a rampage, the ticket collector and two
other railway employees were in a position to see what was going on and to prevent it, and yet none of them said or did
anything to prevent the assailant from accosting and threatening passengers. The court noted that the conductor testified that
the assailants conduct prior to the shooting was such that he was afraid of a holdup and that he walked away from the
assailant and went forward to tell the engineer about it.
In Penny v Atlantic C. L. R. Co. (1903) 133 NC 221, 45 SE 563, there was evidence that the plaintiff had alighted from a
train and was crossing the station platform when he was shot by a negro passenger engaged in a fight with a fellow passenger
who was in the service of the defendant railroad company, but in another state. It also appeared that no warning was given to
the plaintiff, though a conductor and brakeman knew of the danger. The court said: This was not a direct assault by
Calloway upon the plaintiff, who was a passenger on the defendants train when he was shot by Calloway, but we think that
in law the carriers duty would be as clear to warn and give notice to an alighting passenger who was in danger of being
injured by violence at the hands of outside parties, as it would be to protect them against assaults at the hands of others. It
seems to us that the same rule would apply in both cases. The defendant was charged with the plaintiffs safe exit under the
rule laid down. The imminence and suddenness of the danger, as well as the strength and numbers of those offering violence
to passengers, would be matters to be considered by the jury in connection with the carriers duty. The court accordingly
reversed a judgment directing a nonsuit.20
In Pittsburg & C. R. Co. v Pillow (1875) 76 Pa 510, an action by a railroad passenger who was struck in the eye by a piece of
glass, apparently as a result of a bottle being thrown by a drunk Negro passenger who was fighting with a white passenger,
the court affirmed a judgment in favor of the plaintiff. The plaintiff testified that prior to the bottle being thrown, the
conductor was in the car collecting fares as the white man and the Negro man were fighting and that the conductor directed
his eye back toward the fighting, as if he was watching it. Another witness testified that there was noise of quarreling when
the conductor came into the car and that the witness asked the conductor, Why dont you put that negro off?, and the
conductor said that he was not going to interfere and have his nose broken. Declaring that the carrier had the duty to exercise
the utmost degree of diligence and care, the court concluded that the plaintiff lost his eye through the quarrel of a couple of
drunken men who should not have been permitted aboard the cars, or if so permitted, should have been so guarded or
separated from the sober and orderly passengers so that no injury could have resulted from their brawls.
In Nashville, C. & S. L. R. Co. v Flake (1905) 114 Tenn 671, 88 SW 326, an action against a railroad company by a
passenger wounded by a pistol fired by another passenger, the court affirmed a judgment in favor of the plaintiff. The court
noted that the record showed that the wounded passenger was a 13-year-old boy; that the shooting occurred on the afternoon
of December 24, 1903; and that prior to the incident a number of persons under the influence of liquor exploded dynamite
sticks and fired pistols while on the train; and that immediately after the boy was shot, one of the rowdies, with a pistol in his
hand, went out of the coach to the platform and stated that his weapon had accidentally been discharged and that he had

wounded a boy. The court stated that there was abundant evidence to support the jury verdict and to indicate that the railroad
employees were inexcusably negligent in preserving order, adding that the railroad employees should have anticipated that
drunken ruffians armed with pistols, unless suppressed, would either accidentally or intentionally inflict injury on their fellow
passengers.
In Kline v Milwaukee E. R. & L. Co. (1911) 146 Wis 134, 131 NW 427, an action by a passenger against a carrier to recover
damages because of a knife wound inflicted by a drunken fellow passenger, evidence was introduced to show that the
conductor had been requested to eject the drunken man, who had been cursing and fighting. In affirming a judgment for the
plaintiff, the court held that it was for the jury to determine whether the conductor had the knowledge or the opportunity to
know that an injury to passengers was threatened or probable, and whether he kept a vigilant watch over the disorderly man
in order to protect the passengers. The court noted that witnesses to the assault testified that the assailant tried to stab another
passenger who warded off the blow of the knife and that the blow fell on the plaintiff. The court declared that while the
conductor might not be required to infer that a drunken, noisy, and obscene passenger would assault and strike any of his
fellow passengers, yet the conductor would in the exercise of ordinary care be required to keep a vigilant supervision over
such a passenger for the purpose of preventing him from injuring or annoying the other passengers, and that the conductor
should refuse to carry such a passenger on his train and either remove him himself or telephone for the public authorities, if
necessary, to remove him.
7[b] Assaulters conduct not directed toward plaintiff passengerassaulter intoxicatedLiability not established
In the following cases in which the plaintiff railway passenger was hit by an object thrown or fired by an intoxicated
passenger at a person other than the plaintiff, the courts nevertheless held that the carriers liability was not established.
In Brown v Chicago, R. I. & P. R. Co. (1905, CA8 Minn) 139 F 972, it appeared that a drunken man, on being expelled from
a train, threw a heavy missile at the conductor. The missile struck a passenger, severly injuring him. In holding that the carrier
was not liable, the court said: In the light of authority, and in the very reason of things, the liability or nonliability of the
carrier of passengers, in cases of this nature, must be held to depend upon the presence or absence of evidence tending to
show the employees of the defendant carrier either knew, or by the exercise of due care should have known, from the
circumstances of the particular case, injury to the passenger was threatened or impending, which injury, by the exercise of
that high degree of care which the law requires of a carrier of passengers for the safety and protection of the passenger, might
not only have been foreseen, but guarded against, thus averting the injury. . . . Applying this principle to the facts in the case
at bar, as stated, the nonliability of the defendant follows, and follows for the reason that the act of violence resulting in
injury to the plaintiff was suddenly entered upon and committed, entirely unapprehended and unforeseen by anyone, and was,
in its nature and manner of execution of such character, in the light of attending circumstances, as to be clearly unexpected.
Where a disorderly and partly intoxicated passenger on a train was subdued and unsuccessfully searched for arms by a
baggage master, a conductor, and a fellow passenger, and the latter, after the train had come into the station, got a pistol from
the baggage master and snapped it at the rowdy passenger, who had left the train, and who fired back, hitting the plaintiff,
who was descending from the train, the court in Penny v Atlantic C. L. R. Co. (1910) 153 NC 296, 69 SE 238, an appeal from
a judgment in favor of the plaintiff, held erroneous an instruction to the jury that the plaintiff was injured by the railroads
negligence if the jury found that a difficulty was pending between the two passengers, and that the baggage master, with
knowledge of the purpose for which the pistol was borrowed, handed the pistol to the passenger who tried to shoot the
disorderly passenger, who had alighted from the train, causing that person to fire the shot which injured the plaintiff. The
court noted that the passenger who got a pistol from the baggage master was a railroad company employee, but not on duty at
the time of the incident. Stressing that there was no evidence that the baggage master knew the reason for which the pistol
was borrowed, the court concluded that the act of the baggage master was not the proximate cause of the injury, since the
shooting was not an occurrence which a man of ordinary prudence could have reasonably foreseen. It was also held error for
the trial court to refuse to charge the jury that the plaintiff was contributorily negligent in descending from the train if he had
knowledge of the danger or could, in the exercise of reasonable care, have foreseen it. The court ordered a new trial.
8. Assaulter not intoxicated
In the particular circumstances of the following cases where the plaintiff railway passenger was the victim of an assault that
was not directed at the plaintiff, and where there was no contention that the assailant was intoxicated, the courts held that the
carriers liability was supportable.
In Nute v Boston & M. R. R. (1913) 214 Mass 184, 100 NE 1099, the court stated that a conductor who knows that there are
strikers and strikebreakers on the same train is under an obligation to take steps to prevent an outbreak of violence between
them, and, for his failure to exercise care and precaution under such circumstances, an innocent passenger injured by the
fighting of the strikers and strikebreakers may recover from the carrier. The court overruled exceptions to a judgment in favor
of the innocent passenger.
In Galveston, H. & S. A. R. Co. v Bell (1914, Tex Civ App) 165 SW 1, affd 110 Tex 104, 216 SW 390, it appeared that an
intoxicated and disorderly passenger became engaged in an altercation with another passenger, and that, on request, the
conductor made some slight effort to remove him from the car, but when he refused to go farther than a place in the aisle near
the person with whom he had quarreled, the conductor left him standing there and walked out of the car. Almost immediately
he renewed his attack on the other passenger, and the latter, in self-defense, fired three shots at his assailant, one of which
struck the plaintiff, an innocent passenger, and injured her. The court, in affirming a judgment for the plaintiff, said that it was
not necessary that appellant should or could have foreseen the occurrence as it really happened. The court quoted a text
statement: If a drunken and disorderly man is on the carriers vehicle, it will not do to say, after a passenger has been
subjected to insult or injury, that the carriers servants did not know or could not have foreseen that the particular individual
who was insulted or injured was in danger of such insult or injury, if they were apprised, or with proper care could have
known, of circumstances which indicated that someone would be injured unless the disorderly passenger or stranger were
ejected or controlled.
In Gooch v Birmingham R., L. & P. Co. (1912) 177 Ala 293, 58 So 196, an action in which it was alleged that a railway
passenger, after being involved in an altercation with the conductor, left the railway car and fired several shots into the car,
one of which hit the plaintiffs intestate, a passenger, the court, reversing a judgment in favor of the railway company and
remanding, held that the trial judge erred in sustaining the demurrer to the counts of the complaint that alleged that the
shooting was caused by the wrongful act of the motorman in throwing a controlling lever at the assailant, thereby drawing his
fire. The plaintiff alleged that after the assailant left the car he cursed the motorman, whereupon the motorman took the
controlling lever and threw it at the assailant, that the conductor then ran out of the car, and that the assailant then fired
several shots into the car. The court stated that the motorman, in thus precipitating the difficulty, was violating the duty of
protection owed to the passengers. However, the court also held that the trial judge did not err in overruling the plaintiffs
demurrer to the defendants plea, which alleged that the conductor was without fault in bringing on the difficulty and left the
car because the assailant was shooting into the car and that it was necessary for the conductor to leave the car to protect
himself from serious bodily injury. This plea was filed in response to the plaintiffs count alleging that it was the duty of the
conductor, after having brought on the difficulty, to remain in the car and protect his passengers. The court stated that while it
was the duty of the employees in charge of a car to use all the means in their power to protect passengers from injuries, it was
difficult to see how the conductor could better protect a passenger by remaining in the car while a person on the outside was
firing into the car. The court commented that since the grievance of the person firing was against the conductor, it would
seem that his leaving the car would tend to draw the firing away from the car and thus protect the passengers.
B. Streetcar, elevated train, or subway passengers
In the particular circumstances of the following cases in which a passenger on a streetcar, elevated train, or subway was
apparently assaulted deliberately by an intoxicated fellow passenger, the courts held that the carriers liability was
supportable.
Affirming a judgment against a municipal transit authority in an action by an elevated train passenger who was assaulted by a
fellow passenger, the court, in McCoy v Chicago Transit Authority (1977) 69 Ill 2d 280, 13 Ill Dec 690, 371 NE2d 625, held
that sufficient evidence was presented from which the jury could reasonably have found that the conductor knew or should
have known of the propensity of the assailants to cause trouble and that he had both the time and the ability to prevent the
assault, but failed to take necessary precautions. The court noted that the plaintiff testified that some time after he had heard
loud talking, name-calling, and general commotion emanating from a car behind him, three drunk men entered the car in
which he was seated; that after the plaintiff refused the attempted handshake of one of the men, the man called the plaintiff
names, and one of the men hit him; and that after the plaintiff tried to defend himself a fight ensued. The conductor testified
that the three men appeared to be bent on mischief when they boarded the third car of the four-car train; that it was late at
night, and the train had few passengers on board; that when he entered the third car, he went up to one of the three men and
told him not to bother a passenger; that he could have ordered the three men into the empty fourth car at that time; that after
activating the doors at a station, out of curiosity and because he was somewhat alarmed by the mens prior behavior, he
looked to see where the men had gone; and that looking into the second car, he saw that one of the men and a passenger were
fighting. The court also noted that a transit authority security officer testified that the area where the incident occurred was a
troublesome area with a high incidence of on-board crime. The court distinguished Letsos v Chicago Transit Authority (1970)
47 Ill 2d 437, 265 NE2d 650, infra 14[b], stating that in the present case, unlike Letsos, the conductor had ample
opportunity to notice the demeanor of the men and to judge their propensity to bother passengers.
In Blackwell v Fernandez (1945) 324 Ill App 597, 59 NE2d 342, an action arising from an incident in which a streetcar
passenger was stabbed by another passenger, the court affirmed a judgment against the carrier. The court noted that the
evidence showed that prior to the stabbing the assailant was drunk, that he quarreled with the conductor about his fare, that he
insulted the passengers, some of whom were ladies, and used obscene and abusive language in their presence and about them,
and that he quarreled with the plaintiffs decedent, the court commenting that if the conductor did not know of the assailants

misconduct, he was dull indeed. The court also noted that a disinterested passenger testified to the effect that neither the
conductor nor the motorman did anything to protect the passengers from the assailant. Declaring that the plaintiffs decedent
was a passenger entitled to the highest reasonable degree of care, the court said that it was for the jury to decide whether he
received it, and they decided he did not.
In United R. & E. Co. v State (1901) 93 Md 619, 49 A 923, a street railway company was held to be liable for an assault on a
passenger by a drunken and disorderly passenger, who was a short time before ejected from the car for an assault on another
passenger, and was permitted to board the car again.
Where an intoxicated man entered a streetcar talking in a loud and boisterous voice and bumped into passengers in the car,
and where the plaintiff, who was also a passenger, was pushed by the drunken man as he was attempting to get off the car,
and was finally pushed off the car, the court in Holton v Boston E. R. Co. (1939) 303 Mass 242, 21 NE2d 251, held that there
was sufficient evidence to sustain a verdict for the plaintiff against the street railway, adding that there was a series of events
over a reasonable length of time within the vision and hearing of the defendants employee of such a character that the
precipitation of the plaintiff from the car could have been found to be not a sudden, unexpected act but one which could
reasonably be anticipated from a course of antecedent conduct which was negligently permitted to continue unheeded and
unchecked by the motorman.
In Liljegren v United R. Co. (1921, Mo App) 227 SW 925, the court while recognizing that a carrier is not bound to anticipate
an assault by a fellow passenger merely because he is intoxicated, in the absence of anything in his conduct to warn trainmen
that he is likely to become insulting or violent, held that the evidence was sufficient to warrant a finding of breach of duty on
the part of the carrier toward a woman streetcar passenger who was kissed by an intoxicated fellow passenger, it appearing
that he had previously, to the knowledge of the trainmen, engaged in boisterous and offensive conduct, and had assaulted
other passengers, and that another passenger prior to the assault in question had unavailingly appealed to the conductor to
protect the passengers.
A jury had the right to find that a carriers servants had good reason to anticipate that an assault would be made upon a white
passenger by an intoxicated Negro passenger, held the court in Koenig v St. Louis Public Service Co. (1932, Mo App) 45
SW2d 896, where there was evidence to show that the injured passenger and the intoxicated passenger had engaged in an
altercation which was known to the streetcar operator, and that the assailant had been acting in a boisterous manner prior to
the time of the assault, but the operator took no action to protect his passengers.
In Thompson v St. Louis Public Service Co. (1951, Mo App) 242 SW2d 299, an action by a streetcar passenger assaulted by
a drunken passenger, the court, holding that the trial court erred in setting aside the verdict and judgment for the plaintiff
passenger, reversed the judgment in favor of the railway company and remanded. The court noted that the plaintiffs evidence
showed that prior to boarding the streetcar, the assailant sat down on the tracks, called the motorman names, and dared the
operator to run over him; that during the time the assailant was on the streetcar he used obscene language at other passengers;
that immediately prior to the assault the assailant called the plaintiff names, and the plaintiff told him to get off the car. The
court stated that the jury properly could have found that the streetcar operator admitted a drunken and disorderly person as a
passenger with actual notice of his condition; that thereafter the operator, with actual knowledge that he was making a
commotion, cursing and verbally abusing other passengers, failed to make any attempt to quiet the disorderly person or to
have him placed in custody or to evict him from the streetcar; and that the operator might well have anticipated that an assault
and battery might occur. The court distinguished Lige v Chicago, B. & Q. R. Co. (1918) 275 Mo 249, 204 SW 508, supra 3,
noting that that case involved a sudden unprovoked assault by an intoxicated person without warning and that there were no
circumstances present in that case, such as appeared in the present case, out of which an assault should have been anticipated.

Where there was evidence that a drunken Negro passenger was smoking and using objectionable language in the defendants
trolley car, and the conductor asked the plaintiff, also a passenger, to help him eject the drunken person, the court in Frazier v
Public S. R. Co. (1922) 97 NJL 37, 116 A 769, held it error to enter nonsuit in the present action for injuries received when
the drunken passenger stabbed plaintiff while he was trying to eject the drunk. The court noted that there was evidence that
when the drunken passenger drew a knife the conductor ceased to help the plaintiff and did not attempt to go to the plaintiffs
assistance. The carrier owed the passenger the duty of protecting him from assaults of his fellow passengers and intruders, the
court said, and the plaintiff in no way waived or forfeited his right to that protection because he agreed to assist the conductor
in ejecting the drunk. On later appeal after a trial resulting in a verdict for the plaintiff, in Frazier v Public S. R. Co. (1923) 1
NJ Misc 361, affd 99 NJL 501, 123 A 867, the court found no error in charging the jury that if the plaintiff acted at the request
of the conductor and undertook singlehandedly to eject the offending passenger from the car, he was still entitled to be
protected against assault even though the conductor did not assist him, since the proof justified the conclusion that although
the conductor may have undertaken, with the assistance of the plaintiff, to eject the offender, the conductor abandoned that
intention when the offender drew the knife, and allowed the plaintiff from that time on to carry out the removal of the
offender alone.
In Wachser v Interborough Rapid Transit Co. (1910) 69 Misc 346, 125 NYS 767, an action by an Interborough Rapid Transit
passenger who was assaulted by an intoxicated passenger, the court reversed a judgment in favor of the carrier and ordered a
new trial. The court noted that the plaintiff boarded the car at 84th Street; that prior to the assault the drunken passenger
applied to the plaintiff grossly vile and insulting epithets in a loud tone; that at about 66th Street the plaintiff asked the
conductor to stop the drunken man, but the conductor only laughed; that when the plaintiff returned to his seat, the drunken
man kicked him on the leg; that the plaintiff again appealed to the conductor, but the conductor paid no attention; that when
the plaintiff again returned to his seat, he was violently assaulted by the drunken man; and that this final assault occurred
between 42nd and 34th Streets. The court stated that the trial judge erred in holding that it was the passengers duty to use
reasonable care and sense and not to voluntarily place himself unnecessarily in a position of expected danger, the court
stating that it could not assent to the doctrine that decent, law-abiding passengers are compelled to flee from the drunk and
disorderly, or be deemed guilty of contributory negligence. The court stated that when the plaintiff was at first annoyed by the
drunken passenger, and the conductors attention was called to it, it was the conductors duty to protect the passenger from
further annoyance, either by compelling the drunken man to desist or by ejecting him, the court adding that when the
passenger later called the conductors attention to the assault, it was the conductors duty to have the drunken man
immediately ejected from the train.
In Gerlach v Pittsburgh R. Co. (1928) 94 Pa Super 121, the court, although reversing a judgment for the plaintiffs because the
trial court erroneously charged the jury that punitive damages could be awarded, said that the evidence was sufficient to
support a recovery of compensatory damages against a street railway for negligence in failing to guard the plaintiffs from
assault by partially intoxicated fellow passengers, where the assailants were previously disorderly on the trolley car and that
fact was called to the conductors notice, and where the plaintiffs were assaulted in full view of the conductor.
In Southern Traction Co. v Coley (1919, Tex Civ App) 211 SW 265, writ dism w o j, an action by a female streetcar
passenger who was allegedly assaulted by two intoxicated passengers, the court affirmed a judgment in favor of the plaintiff.
The jury found that the conductor or motorman saw and heard the assailants, or one of them, assault, curse, and abuse the
plaintiff; that the conductor or motorman negligently failed to prevent or stop the assault and the use of abusive language; and
that such negligence was the proximate cause of the plaintiffs injuries. The court held that there was sufficient evidence to
support the verdict.

Cases:
City transit authority was not liable in negligence action by subway passenger who was stabbed by fellow passenger, where
motorman upon learning of altercation promptly alerted police, who responded to the scene, and there was no evidence
authority violated its own regulations or common standards of behavior. Miller v. City of New York, 717 N.Y.S.2d 198 (App.
Div. 2d Dept 2000).
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Although in the following cases a streetcar passenger allegedly was deliberately assaulted by an intoxicated fellow passenger,
the courts, under the particular circumstances presented, held that the carriers liability was not established.
In Hoff v Public S. R. Co. (1918) 91 NJL 641, 103 A 209, 15 ALR 860, it appeared that the plaintiff, a female passenger, as
she entered a street car, was insulted by a male passenger who allegedly was drunk. She was agitated by the occurrence, and
passed into the streetcar without paying her fare. On again passing the offender to pay her fare, further insulting remarks were
made to her. Two police officers thereafter entered the car and sat down near her. On reaching the point at which she wished
to leave the car, she used the rear door, though she could have avoided her annoyer by going out through the front door. When
a further insulting remark was made to her by the offensive passenger as she was near the exit, she threatened to smack
him, and was struck by him, sustaining serious injuries. It appeared that all of the remarks addressed to her were within the
hearing of the conductor. It also appeared from her testimony that she passed out through the rear door in order to do
something about the insults offered to her. The court held that there was insufficient evidence for the submission of the case
to the jury, since there was no proof that the conductor could have apprehended the assault in time to prevent it. The
judgment of the supreme court affirming a verdict for the plaintiff was reversed. With respect to the offenders alleged
drunken condition, the court stated that it found no warrant in the case for the assumption that he was drunk, but that if he
was, that fact was obvious to the plaintiff, and it therefore required from her the exercise of at least some degree of prudence
and foresight, looking to her safe exit from the car. Noting that the police officers testimony evidenced that he was not drunk
to such a degree of offensiveness as to make a nuisance of himself to his fellow passengers, the court declared that he had to
have been drunk to such a degree before the conductor would be warranted in ejecting him.
In Putnam v Broadway & S. A. R. Co. (1873) 55 NY 108, an action arising out of the death of a streetcar passenger who was
killed by an intoxicated fellow passenger, the court reversed a judgment in favor of the plaintiff, stating that the carriers
motion for nonsuit should have been granted. The court noted that there was evidence that when the assailant boarded the car
he was intoxicated; that he initially rode quietly on the front platform; that he later went inside the car and made insulting

remarks to the ladies under the protection of the deceased; that the deceased asked the conductor to make the assailant be
quiet; that the assailant ceased to annoy the ladies after the conductors request to be quiet, but, in an undertone unheard by
the conductor, made threats of violence against the deceased and then went to the front platform and was quiet; that the
deceased did not call the conductors attention to these threats; and that when the car stopped to allow the deceased and the
ladies to leave, the assailant seized a car hook, ran to the back platform, and struck the deceased with it. The court concluded
that the assault could not have been foreseen and that the assault was not the reasonable or probable consequence of the
conductors omission to eject the assailant from the car. The court commented that the fact that an individual may have drank
to excess will not, in every case, justify his expulsion from a public conveyance, the court adding that it is rather the degree
of intoxication, and its effect on the individual, and the fact that, by reason of the intoxication, he is dangerous or annoying to
the other passengers, that gives the right and imposes the duty of expulsion.
In the particular circumstances of the following cases in which a passenger on a streetcar or an elevated train was deliberately
assaulted by a fellow passenger, and in which there was no contention that the assaulter was intoxicated, the courts held that
the carriers liability was supportable.
Where a passenger was allegedly assaulted by eight or nine Negro men in the presence of a street railways employees on
board a car and subsequently was removed from the car and further assaulted, the court in Birmingham Electric Co. v Driver
(1936) 232 Ala 36, 166 So 701, held that the defendant was not excused because it did not know when the assailants boarded
the car that they intended to assault the plaintiff, adding that although the defendants servants may not have known of the
intention of the assailants when they boarded the car, it was their duty to protect the passengers at any time after they had
notice that he would be attacked. Noting that there was evidence that the two railway employees on the car did not make the
slightest effort to protect the plaintiff when he called on them for help, the court stated that the jury was authorized to find
that a protest or some effort on their part to protect him might not have been in vain. The court rejected the defendants
contention that the trial court erred in refusing to charge the jury that if the plaintiffs alleged injuries were proximately
caused by a fuss between the plaintiff, a nonunion worker, and the assailants, who were union men, then the defendant
should not be required to hold the bag, the court declaring that even if the plaintiff received his injuries as a proximate
result of a fuss between union and nonunion men, this did not relieve the defendants servants of efforts to protect him. The
court accordingly affirmed a judgment in favor of the plaintiff passenger.
The court, in Uebelein v Chicago Transit Authority (1967, 1st Dist) 86 Ill App 2d 395, 230 NE2d 33 , affirmed a judgment in
favor of an elevated train passenger who was injured when, as she struggled with a passenger who had walked to the outside
of the train and reached in through the window to take her purse, the train started moving forward. The plaintiff had testified
that the train started moving after a buzzer signal sounded; that when the signal sounded, the struggle had been in progress
for approximately 15 seconds; that shortly thereafter the conductor told her that he had seen the whole thing and that he
though that by starting up the train it would break the assailants grip. The court stated that it was a fact for the jury whether
the carrier did all that human care, vigilance, and foresight could reasonably do, consistent with the mode of conveyance and
the practical operation of the road, to convey the plaintiff to her destination in safety. The court rejected the carriers

contention that it could not be held liable for the sudden and unexpected assault on the plaintiff, emphasizing that there was
no question of the foreseeability of the occurrence since it was in progress and that the issue was whether the conductor, in
signaling for the train to start, was guilty of negligence.
The court, in Gordon v Chicago Transit Authority (1984, 1st Dist) 128 Ill App 3d 493, 83 Ill Dec 743, 470 NE2d 1163, 43
ALR4th 173, affirmed a judgment in favor of a rapid transit train passenger who was assaulted, raped, and robbed by another
passenger. The 29-year-old female plaintiff testified that at about 7 p.m. she was sitting in the center of the third car when a
young, muscular black man sat beside her, touched her legs, moved her dress up, and said vulgar things; that he physically
prevented her from leaving, saying he had a knife in his pocket; that he then grabbed her left arm and twisted it; that after she
screamed and tried to escape, he forced her into an unoccupied, unlighted motormans compartment at the end of the car
where he raped and robbed her. The plaintiff also testified that no other passengers were in the car during the attack. The
court declared that as a common carrier the defendant was bound to exercise a high degree of care toward its passengers and
was responsible for preventing injuries to them that reasonably could have been foreseen and avoided, adding that the
defendant was liable for an assault or other misconduct by one passenger who injured another where it had reason to
anticipate the misconduct, but failed to exercise the degree of care and vigilance practicable under the circumstances to
prevent the injury. However, the court noted that more than the mere possibility of an occurrence had to be shown to establish
reasonable foreseeability. The court stated that the record revealed that passenger volume was low at 7 p.m. on the subject
transit line; that in view of the defendants use of eight-car trains at that hour it was reasonably foreseeable that an assailant
and victim could be left alone in a car and that few, if any, other passengers would enter the car at three consecutive stations,
as happened in the present case; that the defendants rules requiring conductors to remain at certain fixed positions rendered
the possibility of an attack on an isolated passenger more likely; and that at the time of the incident the defendant was aware
that many crimes against persons took place on the trains between 5 p.m. and 10 p.m.; and that the defendant knew, or should
have known, that a motormans booth opened for passenger use provided a place of concealment that increased the
opportunities for criminal activity. Rejecting the defendants contention that the trial court erred in denying its motion for a
directed verdict since the evidence did not show that the defendant reasonably could have foreseen that a passenger would be
raped aboard a moving rapid transit train, the court stated that despite the absence of evidence that prior rapes had occurred
aboard moving rapid transit trains, there was sufficient evidence to support the conclusion that the defendant, by reason of the
physical conditions conducive to passenger isolation and the prior pattern of criminal activity aboard its trains, should have
anticipated the potential danger of such an attack and taken measures to minimize the risk.
The court reversed a summary judgment in favor of a carrier and remanded, in Martin v Chicago Transit Authority (1984, 1st
Dist) 128 Ill App 3d 837, 84 Ill Dec 15, 471 NE2d 544, an action by an off-duty police officer who, while a passenger on an
elevated train, was shot by another passenger. The trial court apparently had granted summary judgment on the ground that a
police officer could not recover for injuries resulting from risks inherently involved in police work. The court noted that when
the plaintiff was on duty as a police officer he worked primarily on an elevated train line; that on the day of the incident he
was not in uniform, but was carrying his service revolver; that shortly after 9 p.m. three men boarded the car in which he was
riding; that after the train started to move, one of the men pulled a handgun from his pocket, fired a shot into the ceiling of
the car, and announced that the three men were going to rob the passengers; that the plaintiff drew his revolver and identified
himself as a police officer; and that several shots were exchanged. The plaintiff alleged that the carrier failed to supply
guards, failed to warn passengers of the dangers of riding the elevated train on which he had ridden, failed to prevent persons
armed with weapons from riding its elevated trains, and failed to screen passengers. The court stated that the plaintiffs cause
of action was premised on the duty of care owed by a common carrier to protect its passengers against an unreasonable risk
of physical harm. The court declined to adopt the proposition that a police officer cannot recover for injuries resulting from
risks inherently involved in police work.

In Holmes v Fleming (1927) 122 Kan 652, 253 P 224, a streetcar passengers action to recover damages resulting from
repeated battery inflicted by a fellow passenger, the court reversed a judgment in favor of the railway company and directed
that a new trial be granted. The court noted that when the plaintiff was about to sit on an aisle seat, a passenger who was
sitting next to the window told her she could not sit there; then after she sat down the man struck her, knocking her across the
aisle; that twice more she attempted to sit down and the man struck her; that the conductor stood facing the plaintiff, only 8
feet away, and no one was in the aisle between the conductor and the plaintiff. The court stated that if the conductor knew, or
should have known, that under the circumstances assertion or reassertion of the plaintiffs privilege to occupy a vacant seat
would result in a passenger using force against her, it was the conductors duty to protect her.
In Case v St. Louis Public Service Co. (1946) 238 Mo App 1029, 192 SW2d 595, the court held that the evidence sustained a
jury verdict for the wife of a white passenger assaulted by a colored passenger on the defendants street railway, where the
motorman knew that there was an argument between the assailant and the deceased and did and said nothing to stop it, adding
that the jury could have found that by the exercise of the highest degree of care the motorman could have reasonably
anticipated from the continuing argument and the determined attitude of the assailant that an assault might take place, and
that by prompt action he could have prevented it. The court noted that before the assault the colored man had complained to
the motorman that the white man was smoking, and the conductor told the colored man to tell the white man that the
motorman said to stop smoking, the court commenting that this action by the motorman could have had no other effect than
to intensify the bad feeling between the participants in the quarrel. The court distinguished Lige v Chicago, B. & Q. R. Co.
(1918) 275 Mo 249, 204 SW 508, supra 3, noting that the evidence in that case showed a sudden, unexpected, and
unforeseeable assault, while in the case at bar there was ample evidence to show the potentially dangerous situation of a
continuous quarrel extending over several minutes involving a colored mans complaint against a white mans alleged offense
of smoking on the car, in violation of the carriers rules and to the annoyance of the colored man and his wife.
In Koch v Brooklyn H. R. Co. (1902) 75 App Div 282, 78 NYS 99, in which an assault apparently occurred on a street
railway, the court decided that there was sufficient evidence for the submission of the case to the jury where witnesses for the
plaintiff testified that repeated assaults on the plaintiff had been committed by fellow passengers, that and request had been
made to the conductor to stop such misconduct, and that he had failed to make any effectual or determined effort to put an
end to the disturbance.
The court, in Crawford v Brooklyn & Queens Transit Corp. (1938) 254 App Div 582, 3 NYS2d 105, without further
discussion, affirmed a judgment in favor of a trolley car passenger who was assaulted by another passenger where the
plaintiff claimed that the motorman did not exercise reasonable vigilance to protect the plaintiff from the assault.
In Dennis v Columbia E. S. R., L. & P. Co. (1912) 93 SC 295, 76 SE 711, an action by a passenger on an electric street
railway who was thrown off the car by other passengers, the court affirmed a judgment for the plaintiff. The court stated that
the undisputed evidence showed that the plaintiff was thrown from the moving car in the conductors presence; that the
conductor made no effort to stop the car or to prevent the plaintiff from being thrown out, not even by commanding the
person who was most active in doing it to desist; and that the conductor saw the plaintiff following the car for some distance
after he had been thrown off and did not stop or attempt to stop and let him get on again. The court noted that the fellow
passenger who seemed to have been the most active in ejecting the plaintiff testified that the conductor told him that the
plaintiff would not pay his fare and told him that he, the conductor, wanted the plaintiff off.
Where a passenger on defendant carriers street railway was assaulted by a fellow passenger in the presence of the motorman,
who did nothing to protect the plaintiff, the court in El Paso Electric Co. v Cannon (1934, Tex Civ App) 69 SW2d 532, revd
on other grounds 128 Tex 613, 99 SW2d 907, held that the evidence was sufficient to support a jury verdict for the plaintiff,

especially where, according to the testimony of the plaintiff and his witnesses, the motorman held the plaintiff while his
fellow passenger was stabbing him. The court also noted that there was abundant testimony that the injuries received were
inflicted when the plaintiff was assaulted a second time by the passenger who had made a prior unprovoked assault on the
plaintiff, stating that the defendants employees might have reasonably anticipated a repetition of the assault and should have
used ordinary care to protect the plaintiff against it.
Cases:
In negligence action against city transit authority by passenger for injuries sustained when she was assaulted, raped, and
robbed by another passenger while aboard rapid transit train, evidence was sufficient to find transit authority liable, since it
should have anticipated potential danger of such attack and taken measures to minimize risk, where there were physical
conditions on trains conducive to passenger isolation, and there was prior pattern of criminal activity aboard its trains,
notwithstanding absence of evidence of prior rapes aboard trains. Gordon v Chicago Transit Authority (1984, 1st Dist) 128 Ill
App 3d 493, 83 Ill Dec 743, 470 NE2d 1163, 43 ALR4th 173.
Plaintiff high school students who were stabbed while riding New York City Transit Authority train stated claim against
Authority by alleging: (1) that special relationship existed between Authority and students by virtue of Authoritys creation
of Safe Passage program, whereby students were encouraged to ride home in certain designated subway train cars to which
police officers would be assigned; and (2) that Authority failed to provide police protection in designated train that students
boarded. Students claim against Authority would be reinstated. Reyes v. City of New York, 238 A.D.2d 563, 656 N.Y.S.2d
379, 117 Ed. Law Rep. 1092 (2d Dept 1997).
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Although it was contended that a streetcar or subway passenger was deliberately assaulted by a fellow passenger, and there
was no contention that the assaulter was intoxicated, the courts in the particular circumstances of the following cases held
that the carriers liability was not established.
Stating that the essential ingredients of a carriers liability to a passenger assaulted by a fellow passenger were that the
servant of the carrier had knowledge or with proper care could have had knowledge that the tort was imminent, and that he

had that knowledge or the opportunity to acquire it sufficiently long in advance of the assault to prevent it with the force at
his command, the court in Arkansas Power & Light Co. v Steinheil (1935) 190 Ark 470, 80 SW2d 921, held that where a
streetcar passenger had been assaulted by a fellow passenger, under circumstances that could not have been reasonably
anticipated in time to prevent it, the carrier was not responsible. The court noted that the plaintiff was an 18-year-old white
girl of dark complexion; that she attempted to sit down in a seat about six seats from the front of the car where the motorman
was standing; that when she attempted to sit next to a male passenger, he loudly ordered her to go to the rear end of the car
where other Negroes were riding; that the plaintiff and the male passenger argued for about 5 minutes; and that the male
passenger finally pushed the plaintiff and forced her out of her seat. The court emphasized that the motorman testified that he
did not hear any of the conversation between the male passenger and the plaintiff and did not see the male passenger shoving
her from the seat, that he was engaged in operating the car while turning corners, and that there was much noise from the car
and from other traffic. The court accordingly reversed a judgment in favor of the plaintiff and remanded for a new trial.
Reversing a judgment in favor of a 14-year-old white male streetcar passenger who was assaulted by a young black female
passenger, the court, in Rodriguez v New Orleans Public Service, Inc. (1981, La) 400 So 2d 884, rejected the contention that
the failure of the motorman to do anything between the time the female passenger began insulting the male passenger and the
time of the attack constituted a breach of the carriers duty of care. The injured passenger testified that shortly after he and a
friend boarded the streetcar, two young black women made insulting remarks toward them; that they moved a few seats
away; that the insulting epithets continued for approximately 20 blocks; that the motorman gave no indication that he was
aware of the insulting epithets; that when the young women exited, a large handbag belonging to one of them hit the plaintiff
on the face; that he threw up his arms and arose and in doing so knocked one of the young women against one of the seats
across the aisle; that one of the young women then attacked the young man with a seam ripper; and that the motorman then
stopped the streetcar and separated the youths. The court expressly disapproved the doctrine that a carrier of passengers must
exercise the highest degree of care and is liable for the slightest negligence, as applied to injuries arising from batteries
inflicted on passengers by trespassers or other passengers. The court stated that the reason for the highest care standard was
the notion that one in the business of providing transportation for a fee should be a more professional transporter than the
reasonably prudent driver with respect to hazards associated with the transportation of passengers. Emphasizing that an
injury resulting from a battery is totally unconnected with the hazards generally associated with transportation, the court
stated that in these cases the carrier should be held only to a duty to exercise reasonable care. The court stated that this duty
of reasonable care extends to keeping the premises safe from unreasonable risks of harm or warning persons of known
dangers, the court adding that when the independent, intentional tortious or criminal acts of a third person constitute the
unreasonable risk, this duty does not require the risking of physical injury or civil or criminal liability by physical
intervention, but requires only the summoning of the police at the time the third persons intention and apparent ability to
execute the intended acts are known or should reasonably be known. The court found that the motorman did more for the
injured male passenger than the law required of him when he intervened in the scuffle seconds after it started and separated
the youths, and it found that there was no evidence that would indicate that the motorman should have known that the male
passenger would be attacked.
Where the plaintiff, who was a passenger on the defendants subway, testified that she twice complained to a special officer
of the subway company that a fellow passenger who was a friend of hers had threatened her life if she did not agree to
marry him, but the special officer did nothing to interfere, and where the special officer testified that he did not hear any
threats but that he saw the plaintiff and her fellow passenger standing near the edge of the platform talking in a quiet tone of
voice, the court in Siegelbaum v Dowling (1938) 254 App Div 336, 5 NYS2d 57, affd 280 NY 644, 20 NE2d 1013, held that
the defendant was not liable for injuries sustained when the other passenger suddenly threw plaintiff from the subway
platform, since under the circumstances a reasonably prudent man might readily believe that there was no foundation for the
plaintiffs accusation, particularly since the plaintiff stood close to the edge of the platform while the train was approaching.

The court added that if the special officer was negligent in failing to perform his duty, the plaintiff was likewise guilty of
contributory negligence by standing in a position of danger with full knowledge of the fact that her assailant had threatened to
throw her under the train.
A complaint to recover for injuries sustained by an incompetent due to an assault while he was a passenger in a subway was
dismissed in Scalise v New York (1956, 2d Dept) 2 App Div 2d 984, 157 NYS2d 620, affd 3 NY2d 951, 169 NYS2d 26, 146
NE2d 786, where the court held that there was no proof to show that the conductor of the subway was negligent in failing to
anticipate the single blow which was struck, since, although there had been complaints with respect to the intoxicated
condition of the incompetent, and the conductor had advised him to remain seated and quiet, there was nothing to indicate
that an assault by a third person upon the incompetent was inminent or even threatened, adding that all that was shown was
that the incompetent and his assailant had been observed close together talking loudly and gesturing.
In Stutsky v Brooklyn H. R. Co. (1904, Sup App T) 88 NYS 358, an action by a passenger, apparently a passenger on a street
railway, who was allegedly assaulted by three other passengers, the court, reversing a judgment against the carrier and
ordering a new trial, stated that the evidence did not show that the carrier failed to exercise due care in guarding the plaintiff
from injury while he was on the car. The court noted that the plaintiff testified that before he was assaulted the assailants did
not say anything to him and that the first thing that happened to him was that somebody pulled his whiskers and somebody
else hit him in the eye. Stressing that all the carrier was required to do was to exercise the requisite care, the court found that
the carriers servants had no reason to anticipate that the plaintiff would be injured.
Where the plaintiff was assaulted by fellow passengers while he was riding on the defendants subway and while he was
standing on the platform of a subway station, the court in Zimmet v New York (1956, Sup) 158 NYS2d 356, held that the
defendant was not liable for the assaults, since they were sudden and unanticipated, adding that the first assault in the subway
car was not within the defendants foreseeable risk, and the plaintiff did not establish that the second attack, which took place
on the platform, was of sufficient duration to give due notice to the defendant, or that the defendants conduct was below the
standard to be reasonably expected of it. Noting that the plaintiff contended that the defendant did not have sufficient police
protection for its passengers, the court said that five platform men and two transit policemen were present at the station where
the second attack occurred and that it did not appear from the evidence that the omission of the defendant to post additional
guards, if that was an omission, was the producing cause of the plaintiffs injuries or that additional guards could have
prevented the attacks.
A street railway was not liable to a passenger assaulted by a fellow passenger, it was held in Paal v Cleveland R. Co. (1918,
Cuyahoga Co) 11 Ohio App 462, where, prior to the assault, the crowd on the car was jovial, and its attitude was not such as
to indicate a likely quarrel or assault, and where the assailant assaulted one passenger and immediately followed that assault
by one upon the plaintiff, the court adding that there was nothing in the circumstances which could possibly have aroused the
suspicion of the conductor, who was present, that an assault would occur.
In Widener v Philadelphia Rapid Transit Co. (1909) 224 Pa 171, 73 A 209, the plaintiff was not permitted to recover for an
injury received by him in being rudely pushed and assaulted by a fellow passenger on the step or platform of a street car. The
court stated that a conductor was required to police his car, and, when able to do so, prevent injury to passengers from the
wanton assaults of unruly fellow passengers, but that in order to measure the conductors responsibility the circumstances of
the case had to be considered for the purpose of arriving at a conclusion as to what he could have done to prevent the injury.
In a per curiam opinion, the court, in McMullin v Philadelphia Rapid Transit Co. (1922) 273 Pa 159, 116 A 832, affirming a
judgment for the defendant, held that where a passenger, apparently a passenger on a street railway, on one of the defendants

cars was struck and injured by a fellow passenger, the question of whether, under the circumstances, the conductor failed in
his duty to guard the plaintiff from the attack was properly left to the jury.
In Hillebrecht v Pittsburg R. Co. (1913) 55 Pa Super 204, an action against a carrier, which apparently operated a street
railway, for damages for an assault by a fellow passenger, the court stated the facts and its conclusion as follows: There was
in the present case but one blow struck, and that blow was struck suddenly and without warning by a passenger who, up to
that moment, had been quiet and orderly. The thing was so quickly done that neither the conductor nor the friends of the
plaintiff who were standing in the aisle of the car could have prevented it. The conduct of those in charge of the car must be
judged in the light of the facts established by the evidence. The evidence failed to establish facts from which a jury should
have been permitted to find that the employees of the defendant company were guilty of negligence, and the point submitted
by the defendant company, requesting a binding instruction, should have been affirmed.
Cases:
Plaintiffs claim that defendant city transit authority was negligent in failing to maintain lock on exit near place he was
assaulted by unknown persons did not implicate proprietary function of defendant, and thus action could not be maintained
absent special relationship between parties. Transit authority was properly granted summary judgment. Genovese v New York
City Transit Auth. (1994, 1st Dept) 204 App Div 2d 116, 611 NYS2d 542.
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11. Assaulters conduct not directed toward plaintiff passengerassaulter intoxicated
In the following cases in which a streetcar passenger was the victim of an intoxicated passengers assault, and the assaulters
conduct was apparently not directed toward the plaintiff passenger, the courts under the particular circumstances presented
nevertheless held that the carriers liability was not established.
Where a passenger in a streetcar was struck by one of three intoxicated men who had been engaged in an altercation with her
companion after the motorman had gone back and warned the drunken man and was bringing him forward with him, the
court in Topping v Eastern M. S. R. Co. (1925) 252 Mass 270, 147 NE 882, held that the carrier was not negligent merely
because the person in charge of the car saw or ought to have seen that a drunken person got upon the car.
However, in Goodwin v New York (1954) 206 Misc 740, 134 NYS2d 373, an action by a subway passenger who was injured
when another passenger, who was apparently intoxicated, threw a telephone book at the subway train, the court awarded
damages to the plaintiff. The court noted that the conductor, while the train was in transit between 191st and 181st Street

stations in New York City at about 11:30 p.m. on New Years Eve was notified that three ruffians were rampaging through the
cars, shouting, cursing, breaking electric bulbs, and insulting passengers who sought to remonstrate with them, but although
having such notice did nothing about the matter until he reached 168th Street station, from which point he notified the
trainmaster, and it appeared that one of the three ruffians, after getting off the train at the latter station, ripped a telephone
book from its fastenings in a booth at such station, and flung it at the train as it started to move, shattering a window near
which a passenger was sitting and striking her in the head and also causing flying glass which cut her face. The court held
that the carrier, by neglecting its duty to promptly quell the disturbance by ejecting the ruffians or discouraging them from the
wilful course of reckless misconduct on which they were plainly embarked, made itself liable in damages to the passenger.
In Brehony v Pottsville Union Traction Co. (1907) 218 Pa 123, 66 A 1006, the court held that the evidence did not warrant
the submission of the case to the jury where it appeared that a drunken streetcar passenger refused to pay his fare, and, in
resisting ejection from the car, violently struck at the conductor with his foot, and, missing him, hit the plaintiff, a fellow
passenger. The only negligence charged to the defendant carrier was the admission of the drunken passenger who inflicted the
injury. In reversing a judgment for the plaintiff, the court said: It is the duty of a conductor to exercise a watchful care for
the safety of his passengers; and this duty may require him under certain conditions to refuse to admit into his car a person
applying. . . . If one applying for admission bears upon his person signs convincing to the ordinary mind that he is afflicted
with a dangerous and contagious malady, it is manifestly the duty of the conductor to exclude him. . . . But such danger
cannot be affirmed of admitting a person who is simply intoxicated. Intoxication is not infectious; nor does it so ordinarily
express itself in violence that disturbance of the peace of the car is to be reasonably apprehended when an intoxicated person
is admitted. There may be, and doubtless are, exceptional cases where the intoxication is so gross, the condition resulting
therefrom so offensive, the conduct of the individual so unbecoming and violent, as to justify, and indeed require, his
exclusion.
In Virginia R. & P. Co. v McDemmick (1915) 117 Va 862, 86 SE 744, an action by an electric car passenger who was kicked
by a Negro passenger while the Negro was fighting with a third passenger, the court reversed a judgment for the plaintiff and
remanded for a new trial. The court noted that the evidence showed that prior to the assault the assailant, who apparently was
somewhat intoxicated, took a seat and lighted a cigar; that the conductor told him of the rule forbidding smoking; that the
assailant went to the rear platform and smoked; that the conductor told him that smoking was not allowed on the platform;
that while the assailant, who was standing so that he obstructed the door, was arguing with the conductor, the trolley wheel
slipped from the trolley wire, causing the car to stop in the middle of a turn and causing the car to block all other traffic; that
the assailant refused the conductors request to move away from the door; that the conductor pushed him away and asked
another passenger to hold him until the conductor could replace his trolley and get an officer to arrest the assailant; that the
conductor opened the door for the purpose of getting out; that about this time the plaintiff mounted the cars platform; that at
that time the assailant and the other passenger were engaged in a scuffle or a fight; and that just as the plaintiff tried to deposit
his fare in the box, the assailant swung out his foot so as to strike the plaintiff. The court held that the trial judge erred in
refusing to give the instruction requested by the carrier that the jury believed from the evidence that the injury to the plaintiff
was unexpected and inflicted at a time when the defendants servants were unable to protect him therefrom, the jury must
find for the defendant. Noting that the evidence showed that there was nothing in the assailants conduct while inside the car
from which it could or should have been reasonably inferred or anticipated that he would become a source of danger and
menace to the other passengers and that the conductor testified that he could not have prevented the plaintiffs injury because
he was replacing the trolley when it occurred, the court stated that there was evidence on which to base the requested
instruction.

Where a streetcar passenger was the victim of another passengers assault, the assaulters conduct was not directed toward the
plaintiff passenger, and there was no contention that the assaulter was intoxicated, the courts in the particular circumstances
of the following cases held that the carriers liability was supportable.
The court, in Holly v Atlanta S. Railroad (1878) 61 Ga 215, reversed a judgment dismissing the declaration of a street
railroad passenger who alleged that two men were fighting on the car in which she was a passenger and that when she
attempted to get off the car she was caught in the door by the men and was severely mashed and bruised. The plaintiff alleged
that the defendant street railroad was negligent in failing to provide any conductor to preserve order and that the driver was
negligent in failing to suppress the fight or to eject the combatants or to come to her assistance. The defendant street railway
company urged that a distinction should be made between steam railroad cars and street cars, with respect to the care required
for the prevention of assaults by fellow passengers. On this point the court said: It is true that, as argued for defendant in
error, there may be a difference between railroads on which cars are propelled by steam across the country, and these street
railroads in cities; but both are carriers of passengers, and liable for slight neglect, or the absence of extraordinary diligence.
And their duty to their passengers, in caring for their safe and comfortable conveyance from point to point, is the same. The
decision was based on the following section of the Georgia Code: A carrier of passengers is bound to extraordinary
diligence, on behalf of himself and his agents, to protect the lives and persons of his passengers. But he is not liable for
injuries to the person after having used such diligence.
In Meredith v New Orleans Public Service, Inc. (1981, La App 4th Cir) 402 So 2d 738, cert den (La) 407 So 2d 732, an
action by a streetcar passenger who was injured in a scuffle near the streetcar after a carrier representative asked her to leave
the streetcar, the court affirmed a judgment against the carrier. The court noted that the record indicated that after the plaintiff
informed the streetcar operator that she had seen a male passenger attempt to remove the contents of a purse belonging to a
female passenger, the streetcar operator called a nearby policeman for assistance; that moments later, when the streetcar
stopped, the male passenger exited the rear of the car into the waiting arms of the policeman; that when the plaintiff alighted
from the front of the streetcar a carrier official requested that she remain at the scene; that shortly thereafter the male
passenger broke loose from police custody and knocked the plaintiff to the ground as he fled from the scene. The court also
noted that the streetcar operator testified that the male passenger had a reputation as a pickpocket and had molested a woman
on a streetcar 4 days prior to the incident in question. The court stated that the carrier was negligent in failing to take the
proper degree of care and caution necessary to prevent the injuries of the kind sustained by the plaintiff, adding that the
incident should have been anticipated by the streetcar operator and other carrier officials at the scene. The court commented
that it believed that the injury could have been prevented if the plaintiff had been requested to remain on the streetcar.
Kearns v Brooklyn & Queens Transit Corp. (1938) 254 App Div 779, 4 NYS2d 764, was an action in which a trolley car
passenger, who was struck by one of two participants in a fistfight on the trolley car, claimed that the motorman, with
knowledge of the existence of the fight, did not exercise reasonable care to protect the plaintiff against injury. The court,
without further discussion, affirmed a judgment in favor of the plaintiff passenger.
12.5. Miscellaneous

Cases:
Victim of assault by other train passenger did not establish that transit authority had direct and immediate control over victim,
as necessary to establish special duty exception to governmental immunity, where victim alleged that she had asked authority
for protection from that passenger and had received promises of protection, but did not allege that authority had placed other
passenger on train or directed victim to ride train. Collins v Chicago Transit Auth. (1997, 1st Dist) 286 Ill App 3d 737, 222 Ill
Dec 246, 677 NE2d 449.
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[END OF SUPPLEMENT]
C. Bus passengers
In the particular circumstances of the following cases in which a bus passenger was apparently deliberately assaulted by an
intoxicated passenger, the courts held that the carriers liability was supportable.
In Watson v Chicago Transit Authority (1972) 52 Ill 2d 503, 288 NE2d 476, an action by a bus passenger for gunshot injuries
arising from his struggle with another passenger, the court, reversing a judgment in favor of the defendant transit authority,
held that the trial court erred in directing a verdict for the defendant. The court emphasized that prior to the incident the
busdriver had spoken to the assailant, who the plaintiff described as appearing intoxicated; that the assailant gave the
impression that he was leaving the bus, but then walked toward the plaintiff, loudly demanded change from him, and pulled a
pistol from his pocket; that during the ensuing altercation and struggle, women passengers were screaming; that meanwhile
the driver proceeded several blocks without stopping; then the plaintiff, his companion, and the assailant fell from the bus
when the driver opened the rear exit while the vehicle was in motion; and that the driver finally stopped the bus and locked
himself in after the remaining passengers had alighted. The court distinguished Letsos v Chicago Transit Authority (1970) 47
Ill 2d 437, 265 NE2d 650, infra 14[b], stating that in that case it had concluded that the driver had acted reasonably in
refusing to allow a possibly unruly man to reenter a bus and that subsequent events occurred so swiftly that the driver had no
opportunity to prevent the occurrence.
The evidence was sufficient to support a jury verdict for a passenger against a bus line for an assault by a fellow passenger
which took place outside the conveyance, it was held in Murray v Cedar Rapids City Lines, Inc. (1951) 242 Iowa 794, 48

NW2d 256, where, after two drunken boys had used vile and abusive language and conducted themselves boisterously on the
bus, the driver left the bus unguarded with the plaintiff and other innocent passengers shut in with the youths in order to
summon the police, the court saying that the capacity of the two youths for causing injuries and their probable disposition for
doing so might reasonably have been anticipated by the driver. Noting that the defendant argued that the actions of the boys
in assaulting the passenger were a new and intervening cause and that the negligence of the bus driver was not the proximate
cause of the injury, the court said that the question of proximate cause was also properly left to the jury. The court declared
that the carriers duty stopped just short of insuring the safety of its passengers from assault from fellow passengers and that
the carrier was bound to protect the passengers as far as human care and foresight could go. The court noted that the plaintiff
testified that after the driver left the bus he and the other passengers also left the bus; that there was then an altercation
outside of the bus when some passengers other than the plaintiff tried to restrain the boys pending return of the driver with
the police; and that one of the boys broke loose and struck the plaintiff, which buckled his glasses into his eye.
Where a bus passenger was assaulted by a fellow passenger who had been drinking, the bus driver heard and saw the
altercation between the passengers, and the plaintiff was subsequently assaulted by the same passenger, the court in Rine v
Eastern M. S. R. Co. (1945) 317 Mass 520, 58 NE2d 750, stating that the occurrence was more than an unexpected, sporadic
act, held that a verdict against the bus company was supported by the evidence, which was ample to show that the second
assault was the natural and ordinary culmination of a series of acts all occurring within the hearing and knowledge of the
operator and over such a length of time as to afford him an opportunity to take appropriate measures to protect the plaintiff.
In Pacific Greyhound Lines, Inc. v Vermillion (1935, Tex Civ App) 87 SW2d 312, writ dism w o j, the court, sustaining a jury
verdict for one who was assaulted by a Negro passenger while upon defendants bus, held that it was not necessary that the
driver of the bus should have anticipated that a drunken passenger would assault a fellow passenger in order to show
negligence on the part of the driver, but that it was only necessary to show that the driver might have reasonably anticipated
that the intoxicated passenger would cause trouble and have a fight with some of the passengers. The court rejected the
carriers contention that the assault was so sudden it could not reasonably have been prevented by the busdriver, stressing that
the sudden and unprovoked nature of the assault was not the sole determining factor on the issue of actionable negligence.
The court pointed out that it was shown that the Negro passenger drank a pint bottle of whiskey while on the bus; that he
passed by the driver when he got out of the bus and again boarded the bus at a bus stop; that there was a rearview mirror that
enabled the driver to see the passengers and observe their conduct; and that the Negro passenger became intoxicated and
talked loudly. The court concluded that this evidence was sufficient to support the view that the busdriver knew or should
have known the Negro passenger had become intoxicated and was disorderly, the court adding that it is a matter of common
knowledge that some men in such condition are frequently dangerous and prone to acts of unprovoked violence.
In Kerrville Bus Co. v Williams (1947, Tex Civ App) 206 SW2d 262, writ ref n r e, the court, sustaining a verdict for a
passenger on the defendants bus who was assaulted by a drunken fellow passenger, held that the evidence was sufficient to
justify the jury in finding that the assailant was intoxicated on the bus, that the plaintiff was injured by being kicked by him,
and that the bus driver knew that the plaintiff was being molested and could have reasonably foreseen that the drunken person
would, in all reasonable probability, injure the plaintiff or some other passenger in the manner in which the plaintiff was
injured.

In the following cases in which a bus passenger was allegedly deliberately assaulted by an intoxicated passenger, the courts,
under the particular circumstances presented, nevertheless held that a carriers liability was not established.
In Orr v New Orleans Public Service, Inc. (1977, La App 4th Cir) 349 So 2d 417, an action by a bus passenger assaulted by
other passengers, the court reversed a judgment against the carrier. The plaintiff, a white seaman, testified that he and another
seaman were seated about two-thirds of the way back of the bus when four black youths, who were apparently drunk,
boarded the bus speaking loudly and using profanity; that the youths took seats directly behind the seamen, and within the
time the bus traveled one block or less they tried to pick the seamens pockets; that the seamen then moved to the front of the
bus followed by the four black youths and other blacks, all of whom started to punch and kick the seamen; that the plaintiff
seaman asked the driver for assistance; that the driver stopped the bus about a block after the fighting began, got up, and
asked the blacks to stop; that matters became so violent at this time that the other seaman threw his money out the door, the
black youths rushed out, grabbed the money, and ran off. Although the court recognized that a public carrier is required to
exercise the highest degree of care and that the carrier could be liable for an assault by one passenger on another where there
was reason for the employee to anticipate the assault and a failure on his part to take such action as might be practicable to
prevent the assault, the court stated that even accepting all the facts established by the plaintiffs testimony it found no
liability on the part of the carrier. The court emphasized that from the plaintiffs testimony it was clear that the actual violence
lasted only a very brief part of the approximately 8 minutes the black youths were on the bus and emphasized that the
plaintiffs testimony did not establish that the conduct of the four blacks on entering the bus was sufficient to justify or
require that the driver keep them off the bus. The court distinguished Campo v George (1977, La App 4th Cir) 347 So 2d 324,
infra 14[a], noting that in that case the driver was aware of the possibility of trouble from the time, or within one block
after, a gang of 17 or 20 youths entered the bus and began to terrorize the white passengers, yet he continued on his route for
8 or 9 miles, and failed to seek help even when his bus stopped on a corner where a police station was only 20 feet away. 21
In Pinkney v Miller (1983, La App 4th Cir) 439 So 2d 1113, cert den, prohibition den, mand den (La) 444 So 2d 117,
reconsideration den (La) 445 So 2d 443, an action by the widow of a bus passenger who was shot and killed by another
passenger while he and his wife were attempting to get off a bus, the court reversed the trial court judgment in favor of the
widow and entered judgment in favor of the carrier. The court held that the trial court erred in applying the standard that a
common carrier had to exercise the highest degree of care and was liable for the slightest negligence. The court stated that
under Rodriguez v New Orleans Public Service, Inc. (1981, La) 400 So 2d 884, supra 10[b], a reasonable care standard
was proper, and the carrier and its driver did not have the burden of exculpating themselves from negligence, but the plaintiff
had the burden of proving that the carrier breached a legal duty to protect her and her husband from the risk of a criminal
attack. The court said that the test for determining the carriers negligence was whether its driver exercised reasonable care in
allowing the assailant on the bus, whether the driver knew or should have known of the assailants intention to commit the
battery, and whether the driver knew the assailant had the ability to execute the intended act. The court noted that the plaintiff
and her husband attempted to get off the bus only four blocks after the assailant had boarded the bus; that during this
extremely short distance the assailant walked to the rear of the bus; that without any notice or indication to the busdriver of
his intentions, the assailant interfered with the plaintiffs attempt to leave the bus; that the plaintiffs husband then struck the
assailant with an umbrella; and that the assailant then shot the plaintiffs husband. The court stated that accepting these facts
as uncontroverted and in a light favorable to the plaintiff, it found it impossible to conclude that the busdriver failed to
exercise reasonable care simply by allowing the assailant to enter the bus. The court stated that there was no way for the
driver to foresee that the assailant would commit a homicide moments after he got on the bus, stressing that the driver did not
know or should not have known of the assailants intent to harass the plaintiff or harm her husband; and that the driver did not
know that the assailant had the ability (a gun) to execute the intended act. Although the court recognized that there was
evidence that the assailant was talking loudly before getting in the bus, had to knock hard for the door to open, stumbled
while getting in, and did not pay his fare, the court stated that assuming the driver was fully aware of the assailants dazed

condition, which was alcohol- or drug-induced, the drivers action in allowing the then docile assailant to board the bus was
not easily associated with the risk that he would become violent or have a concealed weapon and eventually shoot a
passenger. The court added that a persons dazed condition certainly does not project the possibility or foreseeability of a
criminal act. The court noted that it was uncontested that on boarding the bus the assailant was silent and outwardly presented
no threat of harm.
In Leake v Queen City Coach Co. (1967) 270 NC 669, 155 SE2d 161, an action by a bus passenger assaulted by an allegedly
intoxicated fellow passenger, the court, reversing a judgment in favor of the plaintiff, held that the bus companys motion for
judgment of nonsuit should have been allowed. The plaintiff presented evidence that prior to the assault the assailant was
intoxicated and got into an argument with two marines and struck at one of them; that the driver called the assailant to come
to him, and that as the assailant returned to his seat after talking with the driver, he jabbed the plaintiff in the left hip with a
needle. The driver testified that prior to the assault he did not see the assailant drink any whiskey and did not smell any, that
when he called the assailant up and asked him to lower his voice, the assailant replied he would be glad to do so, and the
driver did not hear him anymore. Holding that the driver had no reasonable grounds to anticipate an assault on the plaintiff,
the court emphasized that prior to the assault there had been no altercation or unpleasantness between the assailant and the
plaintiff, and there was nothing in the assailants demeanor to cause the busdriver to foresee any trouble. The court
commented that since the plaintiff was lying on the seat with his hips exposed to the aisle, it was likely that the assailants
action was impetuous in that the plaintiffs position presented a target and a temptation that he could not resist. Noting that
the driver was the only bus company employee, the court stated that his primary duty was to give his full attention to the
operation of the bus, adding that if he concentrated his faculties on this duty, he was not likely to observe the conduct of the
passengers except in the most unusual cases.
In Dallas v Jackson (1970, Tex) 450 SW2d 62, a wrongful death action arising from the deliberate shooting of one passenger
by another passenger after the busdriver had stepped off the bus to call the police, the court reversed the judgment of the
appellate court against the carrier and affirmed the trial court judgment in favor of the carrier. The appellate court had
reversed the trial courts judgment notwithstanding the verdict and remanded on the ground that the trial court erred in
refusing to submit the plaintiffs requested issues relating to the negligence of the busdriver in failing to remove, restrain, or
eject the assailant after he had become a passenger on the bus. Passengers testified that prior to the shooting the assailant was
intoxicated, carrying a gun, and creating a disturbance, and that no one told the busdriver that the assailant was carrying a
gun. The busdriver testified that after he heard two men arguing loudly, he told them to quiet down or they would have to get
off; that after they ignored his warning he stopped the bus at a filling station in order to seek police assistance; and that he
made this stop about two blocks after he had given his warning. Pointing out that strong-arm tactics on the drivers part when
they ignored his warning might have led to further altercation endangering other passengers on the bus, the court held, as a
matter of law, that the busdriver fulfilled his duty by stopping the bus after his warning had been ignored and by attempting to
seek police assistance, and held that the busdriver owed no duty to remove, restrain, or eject the assailant. The court approved
the holding of the appellate court that there was no evidence of probative force to sustain the jurys answers that the busdriver
was negligent in permitting the assailant to enter the bus and that such negligence was a proximate cause of the occurrence in
question.
Cases:
Evidence that person boarding bus was in apparent alcohol or drug-induced dazed condition, that he got on bus and walked to
rear without speaking to anyone, that, four blocks later, without any notice or indication to driver of his intentions, passenger
interferred with female passengers attempt to leave bus, whereupon female passengers husband struck passenger with
umbrella and passenger shot husband, did not indicate that the driver had failed to exercise reasonable care simply by
allowing passenger to enter bus, since there was no way for driver to foresee that passenger would commit homicide
moments after he got on bus, driver did not know or should not have known of passengers intent to harass passengers, and
driver did not know passenger had ability (was armed) to execute intended act. Pinkney v Miller (1983, La App) 439 So 2d
1113, cert den, prohibition den, mand den (La) 444 So 2d 117, reconsideration den (La) 445 So 2d 443.
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In the particular circumstances of the following cases in which a bus passenger was apparently deliberately assaulted by
another passenger, and in which there was no contention that the assaulter was intoxicated, the courts held that the carriers
liability was supportable.
Stating that a common carrier was liable for its failure, after reasonable notice, to protect a passenger from assault by a fellow
passenger, the court in Citizens Coach Co. v Wright (1958) 228 Ark 1143, 313 SW2d 94, held that the evidence was
sufficient to support a verdict for the plaintiff where, after an argument over a seat, the plaintiff was assaulted by a fellow
passenger and where the plaintiff testified that while the argument was taking place, and prior to the actual physical assault,
the bus driver looked at the parties but did nothing to protect the plaintiff from the assault, which occurred a few minutes
later.
In Lopez v Southern California Rapid Transit Dist. (1984, 2d Dist) 153 Cal App 3d 1135, 200 Cal Rptr 779 , hear gr by sup
ct,22 an action against a transit district by five bus passengers who were allegedly assaulted by other passengers, the court,
reversing a judgment of dismissal, held that the defendant was not immunized from fulfilling the same duty that would be
imposed on a private company operating the same buses. The plaintiffs alleged that while they were riding as paying
passengers, a fight broke out among some of the passengers; that the busdriver knew that a group of juveniles had boarded
the bus and were harassing the passengers, but that he failed to take any precautionary measures; and that the defendant knew
that violent incidents occurred on its buses with regularity and that there had been previous assaults on passengers on the
route in question. Noting that a state statute provided that a carrier must exercise the utmost care and diligence for the safe
carriage of passengers, the court held that the statute imposed liability on the defendant for breach of its duty to protect its
passengers from assault by fellow passengers. The defendant contended that it was immune from liability because of another
state statute that provided that a public entity was not liable for failure to provide police protection service or for failure to
provide sufficient police protection service. Rejecting this contention, the court stated that the defendant was not necessarily
required to provide police protection to satisfy its duty of care, but was required to provide the same degree of protection that
a private bus company had to provide under similar circumstances. The court stressed that the extent of the protection owed
the plaintiffs, and whether it was provided, were fact questions. The court disagreed with Hernandez v Southern California
Rapid Transit Dist. (1983, 2d Dist) 142 Cal App 3d 1063, 191 Cal Rptr 436, infra 14[b], in which the court held that the
plaintiff could not allege the existence of a special relationship that would take her cause of action outside the breadth of
the police protection immunity statute. The Lopez court held that a special relationship existed between the parties based
on the plaintiffs dependence on the defendant for their safe transportation. The court pointed out that bus passengers have no
say as to who else might be admitted on the bus, that bus passengers might have no means of avoiding another passenger bent
on attack, and that only the busdriver might have the means of summoning help and the means of escape.
In Bullock v Tamiami Trail Tours, Inc. (1959, CA5 Fla) 266 F2d 326 (applying Florida law) , the court held that a bus line
was liable for an unprovoked assault by a white passenger on a Jamaican Negro passenger and his wife, who was also a
Negro although she appeared to be white, since the defendant could have reasonably anticipated the danger to the plaintiffs
because it was known that people in the area would disapprove of the plaintiffs sitting together in the front of the bus, bus
drivers had been warned by the defendant concerning possible racial disturbances in general and the defendants employees
knew that the plaintiffs were unfamiliar with segregation. The court continued that the defendant failed to take proper
precautions, since it should have advised its Jamaican agency to tell Negroes wishing to tour the South of the southern
tradition of segregation, and should have told its drivers to warn Negro passengers, and since the bus driver should have
explained to the plaintiffs his reasons for wishing them to move to the rear and should not have told the assailant of the
plaintiffs race and position on the bus. The court noted that the assailant testified that, although he had a car, he decided to
buy a ticket on the bus after overhearing the busdriver in a restaurant tell police officers of the plaintiffs presence by pointing
out the plaintiffs and saying, fellows look what I have got to contend with and nothing I can do about it.
In De Lucia v Metropolitan Dade County (1984, Fla App D3) 451 So 2d 1008, an action by a bus passenger who was
assaulted by a fellow passenger while on a county bus, the court reversed a summary judgment in favor of the county and
remanded. The court noted that the record revealed that the plaintiff was proceeding down the aisle of the bus towards the
front exit door when she apparently stepped on the assailants foot; that the plaintiff apologized to the assailant; that the
assailant spit in the plaintiffs face; that the plaintiff told the busdriver that the assailant spit at her; and that the assailant then
punched the plaintiff in the face. Declaring that spitting constituted an assault or battery, the court stated that a factfinder
could have concluded that the busdriver was apprised that an assault and battery by the assailant had occurred, that the
busdriver had reasonable ground to believe that an act of violence by the assailant would follow, and that the driver did not
act to prevent such violence. The court said that a carrier is held to the highest degree of care in making arrangements to
guard against all dangers from whatever source arising that may, according to the usual course of things, be expected to
occur. The court added that the person in charge of a carrier is invested with the powers of a peace officer to protect
passengers from assaults by fellow passengers or by strangers, and that if he fails in this duty and one passenger is assaulted
by another, he is guilty of negligence, and the carrier must answer for the injury inflicted.
In McPherson v Tamiami Trail Tours, Inc. (1967, CA5 Ga) 383 F2d 527 (applying Georgia law), an action by a Negro
minister who, while sitting in the forward part of a bus, was beaten by a white man, the court reversed a judgment on a
verdict in favor of the defendant bus company and remanded for entry of a judgment in favor of the minister on the issue of
liability and for further proceedings. The court noted that the busdriver, within the hearing of the man who subsequently
attacked the minister, told the minister to move to the rear of the bus and, when the minister asked the reason for this request,
said, Well, I asked you to; that the driver made his request after he had heard someone near the entrance of the bus make
threats against the minister; and that the driver did not communicate these threats to the minister. The court declared that a
common carrier is bound to use extraordinary care and diligence to protect its passengers, adding that the busdriver failed to
exercise this degree of care when he asked the Negro passenger to move to the rear of the bus without informing him that he

had heard someone near the bus entrance make threats against him.
In Campo v George (1977, La App 4th Cir) 347 So 2d 324, an action by a bus passenger who was assaulted by another
passenger, the court reversed a judgment in favor of the carrier and its busdriver and ordered that there be a judgment in favor
of the plaintiff. The court noted that the incident occurred during the Mardi Gras season; that the assailant was a member of a
group of youthful Negroes who immediately after boarding the bus began to harass and intimidate the white passengers; that
two or three blocks after the youths boarded, the busdriver activated his front and rear blinker lights to alert the police that
there was trouble on the bus, but that no help materialized; that prior to the assault on the plaintiff the driver made a regular
stop that was 20 feet from a police station; that the driver testified that he did not seek police assistance because he believed
that the youths would be getting off in three or four blocks; that after the stop near a police station one of the youths punched
the plaintiff in the face; that as the youths were leaving the bus, one of them came back and threw a bottle, which hit the
plaintiff, causing the injuries in suit. The court stated that a public carrier of passengers for hire is required to exercise the
highest degree of care for the safety of those it undertakes to transport and is liable for the slightest negligence. Declaring that
the mere showing of injury to a fare-paying passenger establishes a prima facie case of negligence, the court added that such
a carrier can be liable for an assault by one passenger on another passenger where there is reason for the carrier employee to
anticipate the assault and failure on his part to take such action as may be practicable under the circumstances to prevent the
assault from being committed or to interfere with its execution. 23 The court concluded that in the instant case the busdriver
should have reasonably anticipated that the youths would assault the plaintiff or other passengers. The court distinguished
Aime v Hebert (1973, La App 4th Cir) 282 So 2d 566, infra 14[b], noting that in Aime the noisy and boisterous youths kept
to themselves in the rear of the bus and had not physically molested any of the other passengers, so that the driver could not
have reasonably anticipated that any of them would assault a passenger.24
Where a statute provided that carriers of passengers should provide equal but separate accommodations for the white and
Negro races by providing separate vehicles, or separate compartments on each vehicle, or by dividing the vehicle by a
partition, and where a bus contained, instead of a partition, small signs with the words white and colored on them to
indicate where the various races should sit, the court in Mississippi Power & Light Co. v Garner (1937) 179 Miss 588, 176
So 280, held that a Negro passenger who was struck, while sitting in the area designated for Negroes, by a white passenger
who demanded her seat, was entitled to recover from the carrier, since the carrier had violated the segregation statute, adding
that the object of the statute was to avoid just such attacks.
In Garrett v Bee Line (1939) 257 App Div 981, 13 NYS2d 154, an action by a girl on a schoolbus who was struck in the eye
by a missile projected by a boy on the bus by means of a rubberband, the court affirmed a judgment in favor of the plaintiff.
Noting that the carrier had received complaints about the conduct of children in the bus sometime before the accident
happened, the court stated that the jury was warranted in finding that the carrier, through its driver, had notice of repeated acts
in the bus similar to that which caused the plaintiffs injury. The court also held that the jury was warranted in finding that the
carrier failed to use available and effective means to prevent injury, such as the plaintiff received, to children using the bus,
adding that it was for the jury to say whether by such failure the carrier fell short of reasonable care.
Where a girl on a school bus was struck in the eye by a paper clip fired by a boy, and where boys had been shooting at girls
with paper clips outside the bus and after they boarded the bus, the court in Maley v Childrens Bus Service, Inc. (1952) 203
Misc 559, 117 NYS2d 888, affd 282 App Div 920, 125 NYS2d 643, held that the bus company was liable for the injury,
observing that the driver failed to exercise ordinary care, supervision, and judgment under the circumstances, since he either
knew of the boys activities, or in the exercise of ordinary care and prudence should have learned of them, and in either
situation should have taken action to stop such rowdyism. The carrier was not only liable under the common law, the court
continued, but was also liable under the regulations of the State Commissioner of Education, since the defendant was under a

statutory duty to provide for the care and transport of the children entrusted to its driver, adding that the drivers breach of
duty to his passengers was the proximate cause of the accident to the infant plaintiff.
In Tickner v Rochester-Genesee Regional Transp. Authority (1976) 87 Misc 2d 703, 386 NYS2d 622, an action by a bus
passenger assaulted by a fellow passenger, the court granted the motion to dismiss the carriers defense that the cause of
action did not come within the exceptions in a state insurance statute. The court did not specify the contents of the insurance
statute, beyond stating that the issue was whether the alleged personal injuries arose out of the use or operation of the
vehicle within the meaning of the state statute. The court stated that no harm to the injured passenger would have resulted
merely from the use of the bus as a common carrier, were it not for the assault, which constituted an intervening cause for
which the carrier might be held liable. The court added that the injury resulted from the alleged independent negligence of the
carrier in not preventing the assault, which was incidental to and not a natural and probable consequence of the function of
the vehicle.
In Floyd v Cleveland (1955) 99 Ohio App 282, 56 Ohio Ops 21, 70 Ohio L Abs 563, 123 NE2d 540, the court, sustaining a
judgment for one who was assaulted by a fellow passenger on the defendants bus after the assailant had had an epileptic
attack and while the plaintiff was ministering to him at the request of the bus driver, who left to get an ambulance, held that
under the circumstances of the case the conclusion of the trial court was not manifestly against the weight of the evidence,
since the bus driver could have, in the exercise of the highest degree of care, foreseen and prevented the assault.
In Finken v Milwaukee County (1984, App) 120 Wis 2d 69, 353 NW2d 827, an action arising out of the assault of a 12-year-
old boy by older boys while riding a bus, the court, affirming a judgment against the carrier, held that there was credible
evidence to support the jurys findings of negligence and causation. There was evidence showing that after the victim and a
friend had boarded the bus, a group of about 20 loud and rambunctious youths, aged 13 to 16, entered the bus through the
door and through the window; that the busdriver was able to see persons entering the bus through the windows by use of her
outside rearview mirrors; that after the victim refused a demand for money by one of the youths, several of the youths hit
him; that during the assault the victims friend pulled the buzzer cord and saw the driver watching the back of the bus in her
rearview mirror; and that the victim and his friend did not see the driver take any action to control the youths. The court
stated that the jury could reasonably infer from the testimony that the driver had reason to anticipate an act by the youths
directed at other passengers or had reason to know during the course of the assault that one of her passengers was
experiencing trouble, and that, in either case, the jury could reasonably find that her failure to act before or during the assault
was negligent and that her negligence caused the injuries to the victim. The court added that it was reasonable to infer, for
example, that the assault would not have occurred had the driver ordered the youths off the bus for their rowdiness, warned
them, or notified them she was summoning the police. The court stated that the carrier had a duty to use reasonable care to
prevent an act by a passenger if the carrier could reasonably anticipate that the passenger might injure another by that act.
Cases:
In action by bus passenger against public common carrier to recover for personal injuries received during fight between other
passengers, trial court had erred in sustaining bus companys demurrer without leave to amend since public as well as private
carriers have duty to use utmost care and diligence for their passengers safe carriage, which duty might require bus driver to
take any number of precautionary measures; since common carrier and its passengers have special relationship, giving
rise to initial duty on part of carrier to come to aid of passengers; since carrier was not immunized by statute that exempts
public entities and public employees from liability for failure to establish or provide sufficient police protection, in that none
of precautionary measures that driver might have taken constituted police services; and since carrier was not entitled to
immunity under statutes that immunized discretionary acts, in that a drivers protection of passengers constitutes ministerial
act, and, moreover, particular driver did not exercise discretion. Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal. 3d 780,
221 Cal. Rptr. 840, 710 P.2d 907 (1985).
Under Montana law, injuries suffered by bus passenger assaulted by copassenger were not so unforeseeable as to preclude
holding bus company liable for negligence. Groves v. Greyhound Lines Inc., 79 Fed. Appx. 255 (9th Cir. 2003) (applying
Montana law).
In negligence action by parents and guardian of 12-year-old child against county public transportation system for injuries
sustained by child when he was allegedly assaulted by group of boisterous youths when a passenger on county bus, evidence
supported verdict finding defendant liable for bus drivers failure to act before or during assault to prevent injury to child,
where driver had reason to anticipate such an assault, or at very least to know during course of assault that one of her
passengers was in trouble, and where she could have ordered youths off bus, warned them, or notified them that she was
summoning police. Finken by Gutknecht v. Milwaukee County, 120 Wis. 2d 69, 353 N.W.2d 827 (Ct. App. 1984).
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Although in the following cases a bus passenger was allegedly assaulted deliberately by another passenger, and there was no
contention that the assaulter was intoxicated, the courts in the particular circumstances presented held that the carriers
liability was not established.
In Taeleifi v Southern Cal. Rapid Transit Dist. (1982, 2d Dist) 130 Cal App 3d 366, 181 Cal Rptr 697, an action by a bus
passenger who was assaulted by another passenger, the court affirmed an order dismissing the passengers complaint against
a rapid transit district. The plaintiff alleged that a dangerous condition existed on the bus on which she was traveling in that
the defendant rapid transit district permitted violent hoodlums and derelicts to board buses, thereby subjecting passengers to
frequent physical assaults. The court noted that the plaintiff attempted to establish liability on the theory that the operation of
the bus along its established route constituted a dangerous condition of property that rendered the governmental entity liable
under a state statute that provided for a public entitys liability for injury caused by a dangerous condition of its property. The
court stated that contrary to the plaintiffs assertion, the complaint contained no allegation that a concurrent physical
condition of the bus itself contributed to the assault, but that the condition of which the plaintiff complained was the presence
of criminal assailants aboard buses, a circumstance wholly unrelated to a property defect. The court added that to the extent
that the plaintiffs complaint might be construed as pleading a defect in the operation of the bus by virtue of the drivers
failure to prevent the presence of criminal assailants on the bus, public policy militated against the imposition of such a duty.
The court noted that the scope of the drivers employment was limited to driving the bus and collecting fares, adding that a
busdriver will seldom, if ever, recognize a criminal assailant at a glance. The court stated that to require a driver to judge a
boarding passengers character in a split second invited the violation of innocent persons rights and created a risk of physical
confrontation on the steps of a bus. Finally, the court stated that the rapid transit district had no duty to warn against criminal
conduct.
In Hernandez v Southern California Rapid Transit Dist. (1983, 2d Dist) 142 Cal App 3d 1063, 191 Cal Rptr 436;25 an action
by the mother of a bus passenger who was killed by another passenger, the court affirmed the order dismissing the defendant
rapid transit district from the action. The plaintiff alleged, among other things, that the defendant knew or should have known
that buses traveling the route on which the decedent was killed were known to be targets of criminal violence against
busdrivers and passengers; that the defendant knew or should have known that security on the bus in question and on the bus
system was inadequate to protect bus passengers; and that the defendant breached its duty of due care by failing to provide
adequate training for busdrivers in responding to criminal violence; and that the defendant negligently failed to provide
adequate security to protect bus passengers from the criminal violence in the areas surrounding the bus routes. The trial court
had found the defendant immune from liability under a state statute that provided that a public entity was not liable for failure
to provide police protection service or for failure to provide sufficient police protection service. The court stated that the
plaintiffs basic allegation that the damages she suffered from the death of her son was proximately caused by the defendants
breach of its duty to provide its passengers with adequate police protection was insufficient. The court said that in the absence
of a special relationship between the defendant and the plaintiff, the state statute immunized the defendant from liability
and noted that the plaintiff did not and could not allege the existence of a special relationship.
In Alvarez v Metropolitan Dade County (1980, Fla App D3) 378 So 2d 1317, an action by a bus passenger who was attacked
by an allegedly unknown assailant, the court affirmed a judgment on the pleadings in favor of the carrier. Although the
court noted that the attack occurred at a location where other passengers had previously been assaulted, the court pointed out
that as far as the pleadings revealed, the unknown assailant could have entered the bus at any stop along the route, possibly
where there had never been a previous assault, the court adding that to hold the defendant liable under the allegations of the
pleadings would make the defendant an insurer, with absolute liability to all passengers. The court declared that the defendant
would only be liable for the assault of one patron on another patron if the defendant knew that the particular assailant had
dangerous propensities, emphasizing that in the present case there was no previous notice to the defendant that the assailant
had dangerous propensities.
In Letsos v Chicago Transit Authority (1970) 47 Ill 2d 437, 265 NE2d 650, an action by a bus passenger who was shot by
another passenger, the court, reversing a judgment in favor of the plaintiff, held that the trial judge erred in denying the
defendant transit authoritys motion for judgment notwithstanding the verdict. The court noted that the driver testified that at
a bus stop a passenger stumbled on his way to the door and then told the plaintiffs companion to remove his feet from the
aisle; that when it appeared to the driver that the passenger was going to get involved physically with the plaintiffs
companion, the driver directed the passenger to leave the bus, which he did; that subsequently, as the driver was driving, an
argument began among the plaintiff, his companion, and another passenger, escalating into a fight; that at the next stop the
driver began to rise from his seat to separate the men, but before he could intervene shots were fired. Although the court
noted that prior to the shooting the evidence most favorable to the plaintiff showed that there was noise, described vaguely as
hollering and argument coming from the rear of the bus, the court emphasized that the bus was described as being crowded,
and a certain level of noise would not have been unusual, and that no connection appeared between the noise and the later
events in the front of the vehicle. The court stated that, viewing all the evidence in a light most favorable to the plaintiff, the
incident causing the plaintiffs injury occurred so quickly and unexpectedly that the driver acting with the highest degree of

care could not have averted it.26
Where a bus passenger alleged that she was assaulted by a fellow passenger both on the bus and after they had descended
from the bus, the court in Bernard v Baton Rouge Bus Co. (1955, La App 1st Cir) 81 So 2d 456, held that the conclusive
evidence showed that there were no blows struck between the passengers and that the passenger, if she was assaulted,
provoked the difficulty herself, and further that the bus driver could not have anticipated any difficulty either on or off the
bus, since the latter was very crowded with school children and there was a great deal of noise. The court noted that when the
alleged assailant asked the driver for something with which to hit the plaintiff, the driver told him he couldnt do that on the
bus and to forget the matter.
In Aime v Hebert (1973, La App 4th Cir) 282 So 2d 566, an action by a white bus passenger who was hit and stabbed by
black teenaged passengers, the court, holding that the busdriver was not negligent, affirmed a judgment in favor of the bus
company. The court declared that a public carrier of passengers for hire is required to exercise the highest degree of care for
the safety of those it undertakes to transport, adding that such a carrier can be liable for an assault by one passenger on
another passenger where there is reason for the carrier employee to anticipate the assault and a failure on his part to take such
action as may be practicable under the circumstances to prevent the assault from being committed or to interfere with its
execution.27 Applying this rule, the court pointed out that prior to the assault the busdriver knew the youths were noisy and
boisterous, but saw that they were keeping to themselves in the rear, the court adding that the driver was not aware that the
black youths were armed, nor could he reasonably have anticipated that they would assault one of the other passengers. The
court also emphasized that the stabbing incident did not occur until the group was leaving the bus and came as a complete
surprise to the driver and the other passengers.
In Carter v New Orleans Public Service, Inc. (1976, La App 4th Cir) 335 So 2d 105, cert den (La) 338 So 2d 701, an action
by two bus passengers who were assaulted by teenaged passengers, the court affirmed a judgment in favor of the carrier.
According to the plaintiffs testimony, after the teenagers pulled the male plaintiffs hair, the female plaintiff pulled the cord
for the purpose of stopping the bus; that after both plaintiffs were then physically attacked by the youths, the female plaintiff
again pulled the cord and screamed, and within a few seconds the bus stopped; and that the bus traveled four or five blocks
between the hair-pulling incident and the place where it stopped. Pointing out that there was evidence that the driver, after
becoming aware of the attack, stopped the bus at the nearest intersection, tried to assist the plaintiffs, and called the
dispatcher, the court concluded that the busdriver did not violate any duty placed on him after he became aware of the
disturbance and attack on the plaintiffs. The court declared that although a public carrier must exercise a high degree of care
in transporting passengers to their destinations, it is the carriers duty to prevent a passenger from injuring another passenger
only if the danger is apparent and could be prevented by the exercise of proper care. 28 With respect to the plaintiffs
contention that the conduct of the teenaged passengers when they were boarding the bus was so unruly and ungovernable that
the driver was aware or should have been aware that a disturbance would occur, the court held that the trial judge did not err
in accepting the busdrivers characterization of the teenagers as exhibiting a playful and jovial attitude, rather than a
threatening, abusive, or rowdy attitude. The court accordingly concluded that the driver was not placed on notice that injury
might foreseeably result to the passengers.
In Higgins v New Orleans Public Service, Inc. (1977, La App 4th Cir) 347 So 2d 944, an action by a 67-year-old male bus
passenger who was beaten by a young male passenger who was from a group of five or six who had been talking loudly but
not threateningly for a few minutes prior to the beating, the court reversed a judgment in favor of the plaintiff and ordered the
suit dismissed. The plaintiff testified that he was seated in the front of the bus on the side-facing seat across from the driver
and that the beating continued for at least 2 minutes. The court stated that the drivers testimony taken as a whole, despite his
one statement that the beating lasted 30 to 45 seconds, was that the beating occurred so swiftly that there was no opportunity

for him to do anything. The court stated that the driver did not have the obligation to intervene physically in a beating, but
only had the obligation to summon the police as speedily as possible. The court concluded that the carrier could not be held
liable for the first blows that the plaintiff suffered, which neither the plaintiff nor the driver had any cause to anticipate,
adding that even if it were true that the driver allowed the beating to continue for at least 2 minutes without attempting to
summon the police, that breach of obligation did not cause the later part of the beating because the police would not have
arrived in time to stop it in any event.
In Imig v New Orleans Public Service, Inc. (1980, La App 4th Cir) 391 So 2d 72 , an action by a bus passenger who alleged
that she was struck on the back of the head by rowdy high school students, the court affirmed a judgment dismissing the suit.
The plaintiff, a teacher, alleged that prior to the assault the busdriver was given notice that another passenger in the rear of the
bus was assaulted and that the driver either ignored the warning or was prevented from hearing the warning because of the
overcrowded bus. The court emphasized that the testimony showed that a crowd of boisterous students boarded the bus at a
certain stop every day; that the busdriver, the plaintiff, who frequently rode the bus, and another passenger had not previously
seen any violent incidents involving these students; and that there was no evidence to indicate that the plaintiff was struck by
one of the rowdy students, rather than by accident, nor by one of the passengers already on the bus when the students boarded
it. The court declared that a carrier is required to exercise the highest degree of care for the safety of those it undertakes to
transport, adding that until there is some indication that would require a vigilant, competent, and experienced driver
exercising the highest degree of care to observe the contemplated reckless and unlawful act of another, it is not negligence on
his part to fail to do so.29
And where a passenger, at the bus drivers request, assisted the driver in removing from the bus a fellow passenger who was
having an epileptic fit, and, after the sick passenger was removed and the driver had released him, he suddenly caught the
plaintiff by the finger and broke it, the court in Frady v Ballard (1943) 222 NC 762, 24 SE2d 254, held that the evidence
failed to disclose negligence on the drivers part that would render the bus company liable to the plaintiff for such injury.
In Pearlstein v Philadelphia Transp. Co. (1960) 400 Pa 365, 162 A2d 205, where bus passengers were suddenly assaulted by a
fellow passenger on leave from a state hospital, the court, stating that the assailants appearance and behavior did not attract
attention to him when he boarded the bus and did not forewarn the driver of his subsequent behavior, held that the driver
exercised the degree of care required of him, since there was evidence, although contradicted, to show that the driver had no
knowledge of the assaults until shortly before he brought the bus to a stop and since there had been no outcry until the last
assault took place.
Where the plaintiff, while a passenger on the defendants bus, was drunk and annoying, and violating defendants rule
concerning standing in the bus, and where the plaintiff was assaulted by a fellow passenger when the driver left to get police
to remove the plaintiff, the court in Southeastern Greyhound Lines, Inc. v Smith (1939) 23 Tenn App 627, 136 SW2d 727,
held that the carrier was not liable for the assault, since the plaintiff, having refused to abide by the regulations of the
company and being responsible for the absence of the driver, was in no position to complain that a fellow passenger assaulted
him for the disturbance he had caused, adding that there was nothing to indicate that the driver had any reason to anticipate
that an assault would be committed while he was getting the police. The plaintiff alleged that the assailant approached him in
a more or less threatening attitude, invited him off the bus, shook his fist under the plaintiffs nose, and abused him. Noting
that the plaintiff also alleged that the assailant was a bus company employee, the court found that the assailant was a bus
company driver, but that he was not on duty at the time of the incident and was riding as any other passenger on a personal
mission, wholly outside the course of his employment.

Cases:
Bus passenger failed to state a claim for breach of common carriers duty of care under California statute where any physical
injury allegedly sustained by passenger occurred after she voluntarily followed driver off the bus, and was allegedly
subjected to excessive force by officers responding to drivers call. Wests Ann. Cal. Civ. Code 2100. Arpin v. Santa Clara
Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) (applying California law).
Transit district was immune from liability in suit by minor passenger on bus who was attacked by two other passengers, even
if bus driver would have been able to intervene under circumstances. Hendricks v. Champaign-Urbana Mass Transit Dist.,
276 Ill. App. 3d 230, 213 Ill. Dec. 49, 658 N.E.2d 519 (4th Dist. 1995).
Bus driver for Mass Transit Administration (MTA) had duty to take affirmative action to provide aid to passenger being
assaulted by group of unruly juveniles who had boarded bus, after driver heard passenger yell, Bus driver, stop the bus. They
are beating up this man back here. Stop the bus. Restatement (Second) of Torts 314A. Todd v. Mass Transit Admin., 373
Md. 149, 816 A.2d 930 (2003).
City transit authority had no special relationship with bus passenger, and thus was not liable for injuries sustained when
passenger was shot, after getting off of authoritys bus, by individual with whom passenger had had a physical altercation on
bus, absent evidence that an authority employee observed anyone injuring passenger while on authority property and failed to
summon emergency assistance, and that such failure was a proximate cause of passengers injuries sufficient to bring
passengers claim within an exception to the special relationship requirement. Frazier v. Manhattan and Bronx Surface
Transit Operating Authority, 75 A.D.3d 619, 905 N.Y.S.2d 657 (2d Dept 2010).
In action by passenger against transit authority for injuries sustained on bus as result of assault by another passenger, during
which bus traveled for approximately one-and-one-half blocks before driver was able to reach telephone to call police, transit
authority was entitled to summary judgment where, even assuming special relationship existed between transit authority and
plaintiff, that relationship merely established existence of duty of reasonable care, which driver had fulfilled. Katzman v.
New York City Transit Authority, 174 A.D.2d 607, 571 N.Y.S.2d 93 (2d Dept 1991).
Public bus company had no liability for injuries sustained by student who was punched by fellow student on public bus on
way to high school where, even assuming special relationship existed between bus company and injured student, there was no
showing of any lack of reasonable care on part of bus company in that, even though assailant might have been disruptive on
bus at some previous time, there was no warning or indication that assailant would engage in physical violence against other
students. Rabadi by Rabadi v. County of Westchester, 160 A.D.2d 858, 554 N.Y.S.2d 291, 60 Ed. Law Rep. 154 (2d Dept
1990).
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14.5. Assaulters state of intoxication unknown or unspecified
Cases:
Evidence was insufficient to establish that driver of bus had actual or constructive notice that any passenger was in danger of
assault or that there was dangerous atmosphere on bus which would create duty to seek assistance, and transit authority was
not liable for injuries suffered by passenger who was punched twice in back of head by passenger who was exiting bus; only
evidence presented was that bus was noisy, passenger never told driver of incident occurring before she was punched in
which something struck her shoulder, no passenger complained to driver at any time regarding behavior on bus, passenger did
not expect to be punch, and at no time did noisy passengers walk up and down aisle threatening other riders. Milone v.
Washington Metropolitan Area Transit Authority, 91 F.3d 229 (D.C. Cir. 1996).
Injuries to bus passenger allegedly sustained in attack from other passengers did not result from operation of bus by public
employee, and thus transportation districts immunity from liability was not waived under Governmental Immunity Act;
provision of security to passengers was not necessary for bus driver to operate vehicle, and furthermore, passenger did not
allege that his injuries resulted from any act or omission of driver. Wests C.R.S.A. 24-10-106(1)(a). Stockwell v. Regional
Transp. Dist. of Denver, 946 P.2d 542 (Colo. Ct. App. 1997), rehg denied, (May 8, 1997) and cert. denied, (Nov. 3, 1997).
Any duty on part of common carrier protect bystander passengers against actions of armed passenger did not render carrier
liable for injuries resulting when armed passenger fired previously concealed gun during altercation on bus; any acts or
omissions of carrier were not a proximate cause of the shooting. Sanchez v. Independent Bus Co., Inc., 358 N.J. Super. 74,
817 A.2d 318 (App. Div. 2003).
Bus company was not liable for injuries sustained by passenger when he was lured off bus, robbed, and stabbed by fellow
passenger, even though passenger told bus driver his desired destination and driver failed to warn passenger that fellow
passenger was directing him to exit bus at wrong stop, where there was no indication that bus company anticipated or
reasonably ought to have anticipated such an assault. Farmer v. Green Bus Lines, Inc., 679 N.Y.S.2d 88 (App. Div. 2d Dept
1998).
Transit authority could not be liable for failing to prevent third party from pushing bus passenger out of bus window, absent
any special duty owed by authority in regard to passenger safety. Rawlins v. Manhattan and Bronx Surface Transit Operating
Authority, 232 A.D.2d 340, 648 N.Y.S.2d 610 (1st Dept 1996).
Transit authority and busdriver were entitled to summary judgment in action by passenger stabbed while riding city bus,
where passenger did not establish any special relationship between himself and transit authority that would warrant
imposition of liability and also failed to show any lack of reasonable care on part of transit authority or driver that would
warrant exception to rule that transit authority owes no duty to protect person on its premises from assault by third persons

absent facts establishing special relationship between transit authority and person assaulted. Alleyne v New York City Transit
Auth. (1994, App Div, 2d Dept) 617 NYS2d 523.
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15. Assaulters conduct not directed toward plaintiff passenger
In the particular circumstances of the following cases in which a bus passenger was injured as a result of a flight between the
busdriver and another passenger who was intoxicated, the courts held that the carriers liability was supportable.
But see Wolf v East St. Louis City Lines, Inc. (1949, CA8 Mo) 173 F2d 393 (applying Illinois law), an action by a bus
passenger who was struck on the head with a metal ticket punch as a result of a fight between the bus operator and a colored
male passenger, where the court affirmed a judgment dismissing the action. The plaintiffs evidence disclosed that prior to the
incident the bus operator told the colored passenger that he would have to pay his fare or get out; that, receiving no response,
the operator walked back to where the passenger was sitting; that the passenger then assaulted the operator, and that in some
way, a ticket punch left the operators hand and struck the plaintiff. The court stated that the operator did nothing more than
he was required to do in the performance of his duty, adding that the fact that on two previous occasions the same colored
passenger had refused to pay his fare, and that others had paid it for him, would not justify an inference that the operator was
charged with notice that a fight would follow a demand of the additional 5-cent fare due from the passenger if he were to
continue his journey. The court emphasized that there was no evidence indicating that the colored passenger was, or appeared
to be, either intoxicated or insane, noting that the plaintiff testified that when the bus operator walked back toward the
passenger, the plaintiff did not know or have any reason to believe that an altercation would start.
The court, in Spalt v Eaton (1937) 118 NJL 327, 192 A 576, affirmed a judgment in favor of a bus passenger who was injured
as a result of a fight among the driver and two other passengers, holding that there was tangible evidence of the carriers
negligent conduct proximately causing the plaintiffs injuries. The court noted that there was evidence that a passenger under
the influence of intoxicating liquor indulged in unseemly language and refused to obey the bus operators commands to be
seated; that the operator finally admonished the offender that, unless the misbehavior ceased, the operator would be required
to eject him from the vehicle; that the offenders brother, also a passenger, said that he would resist such an effort with force;
that when the driver tried to expel the offender, he and his brother started to fight with the driver; that the plaintiff was caught
in between them and was thrown against a partition; and that while the misbehavior of the offender began sometime before
the altercation, the bus operator did not invoke the aid of one of the police officers stationed along the route. The court stated
that it was a factual question whether it was within the realm of reasonable prevision that the operators attempt at forcible
expulsion of the offender would precipitate a melee that would menace the safety of the passengers. The court pointed out
that the bus operator did not have an unconditional right, nor was he under an absolute duty, to resort to forcible expulsion, if
that course was likely to be productive of peril to the nonparticipating passengers, and if an alternative preventative measure
less likely to subject the passengers to the risk of harm was available. On appeal, in a per curiam opinion, Spalt v Eaton
(1938) 119 NJL 343, 196 A 736, the court, affirming the judgment for the plaintiff, held that the trial judge properly denied
the carriers motions for nonsuit and a directed verdict, stating that there was a factual question whether the busdriver showed
a lack of proper care for the safety of his passengers.
It was held reversible error to sustain a demurrer to the petition of one injured while a passenger on defendants bus, in
Schafer v Youngstown M. R. Co. (1935, App) 19 Ohio L Abs 205, where the petition alleged that the driver permitted a
drunken, threatening person to board the bus as a passenger and where, after the drunken passenger had been ejected from the
bus and during a quarrel with the driver outside the bus, the drunk threw a bottle at the driver which struck a pole, causing
fragments of glass to pierce the eye of the plaintiff. The petition, it was said, presented questions of fact to be determined by
the jury, since the jury could find that the bus driver could have foreseen and anticipated that the passenger would throw a
bottle causing injury to other passengers.
Cases:
Even if special relationship existed between infant bus passenger and city transit authority, transit authority established that it
acted reasonably under the circumstances, and thus passenger could not recover damages for personal injuries he sustained
when he was injured by firecracker thrown by fellow passenger. Banks v. New York City Dept. of Educ., 70 A.D.3d 988, 895
N.Y.S.2d 512 (2d Dept 2010).
Murder/suicide on county bus, in which driver was shot and killed by another passenger, was not foreseeable as matter of
law, and county bus company was not the cause in fact of resulting accident, and thus county was not liable in negligence to
bus passenger who was injured when driverless bus plunged off bridge. Tortes v. King County, 119 Wash. App. 1, 84 P.3d 252
(Div. 1 2003), as amended, (Sept. 22, 2003).
[Top of Section]
[END OF SUPPLEMENT]
D. Taxicab passengers
16. Assaulter intoxicated
In the particular circumstances of the following cases in which a taxicab passenger was allegedly deliberately assaulted by an
intoxicated fellow passenger, the courts held that the liability of the taxicab company was supportable.

Affirming a judgment in favor of a taxicab passenger who was assaulted by another passenger who was allegedly intoxicated,
the court, in Black & White Cab Co. v Doville (1952, Ark) 251 SW2d 1005, held that the trial judge did not err in instructing
the jury that if, prior to the assault, the assaulters conduct would have induced a reasonably vigilant and prudent cabdriver by
the exercise of ordinary care to have anticipated an assault on the plaintiff, then it would become the duty of the cabdriver in
the exercise of a high degree of care to use all reasonable means to protect the plaintiff from assault. The court noted that
there was evidence that when the plaintiff, who was seated in the back seat, stated his desired destination, the assaulter, who
was in the front seat, said, You want to go with us; that when the plaintiff reiterated his desired destination, the assaulter
pulled the plaintiff forward and assaulted him; that when the cab stopped to discharge another passenger, the plaintiff tried to
get out, but the assaulter and the other man in the front seat seized the plaintiff and beat him; that the taxicab driver did not
protest, call the police, or do anything to discourage the assault or to protect the plaintiff; that the cab was equipped with a
two-way radio to the office of the cab company; and that the cabdriver did not report the attack to the cab company office.
However, in Pinnell v Yellow Cab Co. (1948) 77 Ga App 73, 47 SE2d 774, an action by a taxicab passenger who was robbed
and shot by another passenger, the court, affirming a judgment in favor of the cab company, held that the trial judge did not
err in sustaining the cab companys general demurrer. The plaintiff alleged that she and her female companion engaged a
taxicab; that en route to their destination the cabdriver picked up a male passenger who, after entering the cab, said that he
was drunk and made other statements of a vulgar nature; that the driver admonished him, and he apologized; and that after
riding four or five blocks, the male passenger robbed the driver, the plaintiff, and her companion, and shot the plaintiff
through the right foot. The plaintiff charged that the cabdriver, while acting within the scope of his authority, negligently
subjected the plaintiff and her companion to danger in stopping the cab without their consent and in picking up the additional
passenger in violation of the contract of hire. The court stated that even if it could be said that picking up the passenger
violated the contract, this alleged violation was not the proximate cause of the plaintiffs injuries because her injuries grew
out of the willful and criminal conduct of the male passenger, the court adding that there was nothing to indicate that the
taxicab driver should have anticipated or foreseen this criminal conduct. The court distinguished Grimsley v Atlantic C. L. R.
Co. (1907) 1 Ga App 557, 57 SE 943, supra 7[a], stating that that case held that it was a question for the jury whether the
carrier should have apprehended that an intoxicated passenger, who was armed with a pistol and had been shooting it while
on the train, would jump from the train at a station and fire the pistol into the coach, injuring another passenger.
A taxicab company was liable for injuries received by a female passenger when she was shot by a fellow passenger, held the
court in Bynum v Wiggins (1958, La App 1st Cir) 107 So 2d 476, where, prior to the time that the injured passenger boarded
the taxicab, the driver knew that the assailant had been drinking and told him to put away a revolver with which he was
playing, and where, at the time of the assault, the taxi driver had left the cab for a few minutes. Declaring that a carrier has
the duty of exercising the highest degree of care to his passenger, the court concluded that the driver was guilty of gross
negligence, since he could have reasonably foreseen that the assault might take place.
Where a taxicab passenger was allegedly deliberately assaulted by a fellow passenger, and there was no contention that the
assaulter was intoxicated, the courts, under the particular facts presented in the following cases, held that the liability of the
taxicab company was supportable.
In Jones v Yellow Cab & Baggage Co. (1954) 176 Kan 558, 271 P2d 249, it was held that the trial court erred in sustaining a
demurrer to the plaintiffs evidence where that evidence showed that the plaintiff was a passenger in the defendants taxicab,
and the driver permitted the plaintiffs former husband to enter the cab, although the plaintiff told the driver that she was
afraid of her former husband and that he had threatened her, and where, after the plaintiff had repeatedly told the driver that
she did not want her former husband in the cab, the husband assaulted his wife without interference by the driver. The court
noted that the plaintiff testified that when she came back to the cab after knocking on the door of a coworker who was to
share the cab, she had one foot on the running board when her ex-husband fired shots at her, pulled her free of the cab, and
assaulted her, and that the cabdriver drove away.
See St. Michelle v Catania (1969) 252 Md 647, 250 A2d 874, an action by a taxicab passenger who was allegedly assaulted,
robbed, kidnapped, and raped by a taxicab driver and another passenger, where the court reversed the order sustaining a
demurrer to a count of the declaration that stated that the taxicab business owner breached her duties to provide the plaintiff
with safe carriage and to protect the plaintiff from the misconduct of the driver. Focusing on the drivers alleged assault, the
court stated that since the passengers declaration alleged facts that, if proved to the satisfaction of the jury, would support a
finding that the contract of transportation had not ended, the omission of an affirmative allegation that the driver was acting
within the scope of his employment did not make the declaration demurrable.
Where a 14-year-old girl was lured into a taxicab by the driver, at the instance of a passenger already in the cab, and where
the girl, while a passenger, was raped by both the cab driver and the other passenger, the court in Haser v Pape (1949) 77 ND
36, 39 NW2d 578, held that the trial court erred in directing a verdict in favor of the cab company. The court accordingly
reversed the judgment for the cab company and granted a new trial. Discussing the cab companys liability for the assault by
the passenger, the court stressed that the assault was accomplished with the wilful connivance and assistance of the driver,
adding that the basis of the carriers liability for the assault was not the tort itself but rather the negligent omission of the
carrier, through its employee, to prevent the assault.
RESEARCH REFERENCES
Wests Key Number Digest

Wests Key Number Digest, Carriers 280(5-8)
Wests Key Number Digest, Carriers 280(1)
Wests Key Number Digest, Carriers 280(1.2)
Wests Key Number Digest, Carriers 281

Wests Key Number Digest, Judgment 181(33)
A.L.R. Library
A.L.R. Quick Index, Assault and Battery
A.L.R. Quick Index, Buses
A.L.R. Quick Index, Carriers
A.L.R. Quick Index, Railroads
A.L.R. Quick Index, Street Railways
A.L.R. Quick Index, Taxicabs
A.L.R. Quick Index, Victim
A.L.R. Federal Quick Index, Amtrak
A.L.R. Federal Quick Index, Assault and Battery
A.L.R. Federal Quick Index, Buses

A.L.R. Federal Quick Index, Carriers

A.L.R. Federal Quick Index, Motor Carriers
A.L.R. Federal Quick Index, Railroads
A.L.R. Federal Quick Index, Streetcars and Street Railways
A.L.R. Federal Quick Index, Taxicabs
A.L.R. Federal Quick Index, Victim of Crime
Liability for Injury on or in Connection with Escalator, 63 A.L.R.6th 495
Validity, construction, and effect of assault and battery exclusion in liability insurance policy at issue, 44 A.L.R.5th 91
Validity and construction of statute or ordinance specifically criminalizing passenger misconduct on public transportation, 78
A.L.R.4th 1127
Liability of land carrier to passenger who becomes victim of third partys assault on or about carriers vehicle or premises, 34
A.L.R.4th 1054
Liability for injury on, or in connection with, escalator, 1 A.L.R.4th 144
Carriers liability based on serving intoxicants to passenger, 76 A.L.R.3d 1218
Carriers liability for injury or death of infant passenger as affected by fact that child was in custody of parent or other adult,
74 A.L.R.3d 1171
Duty and liability of carrier by motorbus to persons boarding bus, 93 A.L.R.2d 237
Carriers duties to passenger who becomes sick or is injured en route, 92 A.L.R.2d 656
Scope of limitation statutes specifically governing assault and battery, 90 A.L.R.2d 1230
Sleeping-car companys liability for employees assault upon passenger, 60 A.L.R.2d 1115
Employers liability for assault by taxicab or motorbus driver, 53 A.L.R.2d 720
Carriers duty and liability to its passenger injured on platform and the like of station or terminal owned by another company,
41 A.L.R.2d 1286
Legal Encyclopedias
Am. Jur. 2d, Carriers 1065-1070
Treatises and Practice Aids

Averbach, Handling Accident Cases
Stein, Damages and Recovery: Personal Injury and Death Actions
Danner, Pattern Deposition Checklists
Danner, Pattern Interrogatories: Basic Facts
Trial Strategy
Carriers negligent maintenance of public facility, 47 Am. Jur. Proof of Facts 2d 577
Assault and Battery, 2 Am. Jur. Proof of Facts 81
Trial of a Personal Injury Case in a Comparative Negligence Jurisdiction, 21 Am. Jur. Trials 715
Locating and Interviewing Witnesses, 2 Am. Jur. Trials 229
Forms
5 Am. Jur. Pleading and Practice Forms, Carriers, Forms 191-193
21 Am. Jur. Pleading and Practice Forms, Railroads, Forms 121-123
Additional References
Boolean Search Query: liab! or negligen! w/15 carrier w/15 assault w/7 fellow or passenger

Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1
This annotation and the annotation at 34 A.L.R.4th 1054 together supersede the annotations at 15 ALR 868, 46 A.L.R.2d 1098, and
77 A.L.R.2d 504.
2 Cases involving all kinds of land carriers are within the scope of this annotation, regardless of whether they are common or private
carriers. For definitions and distinctions regarding types of carriers, see Am. Jur. 2d, Carriers 1-9. Not regarded as carriers for
present purposes, however, are elevators and escalators. See, generally, Am. Jur. 2d, Elevators and Escalators 22, and the
annotation at 1 A.L.R.4th 144, entitled Liability for injury on, or in connection with, escalator.
3
This annotation includes cases that involve an attack by means of direct physical contact or by means of an object thrown or fired.
However, cases involving an injury to a passenger caused by crowding in a conveyance, by a passengers accidentally touching,
stepping, or falling on another passenger, by a passengers negligently throwing an object that hits another passenger, or by a
passengers using abusive or profane language to another passenger are included only if the courts have called the occurrence an
assault (see Am. Jur. 2d, Carriers 1058, 1066, 1069, and 1070).
4 This annotation includes cases in which the assaulter and the victim are explicitly or implicitly treated as passengers by the
courts and thus includes cases in which the assault on a passenger allegedly occurred in a place other than on board a carrier.
However, all cases involving alleged assaults by law enforcement officers on a passenger, and all cases in which the court did not
indicate whether the assaulter was a passenger or a third party, are collected in the annotation at 34 A.L.R.4th 1054, entitled
Liability of land carrier to passenger who becomes victim of third partys assault on or about carriers vehicle or premises.
For brevity, the term plaintiff is used in this annotation to refer to the passenger who is the victim of the assault, even though in
the case of a minor, incompetent, or deceased victim, the named plaintiff may be someone other than the victim.
5
See 9- 12, infra, for cases involving passengers on intracity street railways, elevated trains, and subways.
6
In Tomme v Pullman Co. (1922) 207 Ala 511, 93 So 462, infra 5[b], where the court held that a high degree of care was required
of the carrier to protect a passenger from injury from another while on the vehicle when the wrong was actually foreseen, but that
only ordinary care and prudence in foreseeing or anticipating the threatened violence was required, the court noted that there were
expressions in the Seaboard Case not entirely in accord with its present opinion and that the Seaboard Case was expressly
overruled insofar as it might conflict with the present holding.
7
This case was distinguished in Powell v Beasley (1938) 57 Ga App 231, 194 SE 926, infra 5[b].
8 This case was distinguished in Powell v Beasley (1938) 57 Ga App 231, 194 SE 926, infra 5[b].
10 For the courts holding in favor of the defendant Seaboard Coastline Railroad in this case, see Hanback v Seaboard C. Railroad
(1975, DC SC) 396 F Supp 80, infra 5[b].
9
This case was distinguished in Hanback v Seaboard C. Railroad (1975, DC SC) 396 F Supp 80, infra 5[b].
11
This case was distinguished in Abernathy v Missouri P. R. Co. (1920, Mo App) 217 SW 568, infra 7[a]; Case v St. Louis Public
Service Co. (1946) 238 Mo App 1029, 192 SW2d 595, infra 10[a]; Thompson v St. Louis Public Service Co. (1951, Mo App) 242
SW2d 299, infra 9[a]; and Hines v Rice (1920) 142 Ark 159, 218 SW 851 (applying Missouri law), supra 5[a].
12 The court apparently assumed that the allegedly drunken man had the status of a passenger.
13 The facts are taken, in part, from Anderson v South Carolina & G. R. Co. (1908) 81 SC 1, 61 SE 1096, supra 5[a], a subsequent
appeal, in which the court affirmed a judgment in favor of the plaintiff passenger.

14
For the courts ruling against the defendant National Railroad Passenger Service, see Hanback v Seaboard C. Railroad (1975, DC
SC) 396 F Supp 80, supra 5[a].
15 See Hall v Seaboard A. L. R. Co. (1921) 84 Fla 9, 93 So 151, infra 6[b], for the plaintiffs state court action against the railway
company.
16
See Hall v Seaboard A. L. R. Co. (1921) 84 Fla 9, 93 So 151, infra, for the plaintiffs state court action against the railway
company.
17 See Hall v Pullman Co. (1918, DC Fla) 253 F 297, supra, for the plaintiffs federal court action against the sleeping car company.
18
This case was distinguished in Pinnell v Yellow Cab Co. (1948) 77 Ga App 73, 47 SE2d 774, infra 16.
19 The facts are taken, in part, from the courts opinion on a former appeal, Louisville & N. R. Co. v McEwan (1895) 17 Ky LR 406,
31 SW 465.
20
See Penny v Atlantic C. L. R. Co. (1910) 153 NC 296, 69 SE 238, infra 7[b], an appeal after a trial in the same case, in which the
court reversed a judgment for the plaintiff and ordered a new trial. The court noted in that opinion that the assailant was partly
intoxicated.
21 In Rodriguez v New Orleans Public Service, Inc. (1981, La) 400 So 2d 884, supra 10[b], the court disapproved of the doctrine
that a carrier of passengers is required to exercise the highest degree of care, as applied to actions involving injuries arising from
batteries inflicted on passengers by trespassers or other passengers, the court declaring that a carrier had only a duty in such cases
to exercise reasonable care. The Rodriguez court noted that the court in the Orr Case used this reasonable care approach
notwithstanding its purported adherence to the highest care standard.
22
This case has no precedential value in California as a result of a hearing being granted by the California Supreme Court.
23
In Rodriguez v New Orleans Public Service, Inc. (1981, La) 400 So 2d 884, supra 10[b], the court disapproved of the doctrine
to exercise reasonable care.
24 The Campo Case was distinguished in Orr v New Orleans Public Service, Inc. (1977, La App 4th Cir) 349 So 2d 417, supra 13[b].
25 The court, in Lopez v Southern California Rapid Transit Dist. (1984, 2d Dist) 153 Cal App 3d 1135, 200 Cal Rptr 779, hear gr by
sup ct, supra 14[a], disagreed with the holding of the Hernandez court.
26 9[a]
This case was distinguished in McCoy v Chicago Transit Authority (1977) 69 Ill 2d 280, 13 Ill Dec 690, 371 NE2d 625, supra ,
and Watson v Chicago Transit Authority (1972) 52 Ill 2d 503, 288 NE2d 476, supra 13[a].
27 In Rodriguez v New Orleans Public Service, Inc. (1981, La) 400 So 2d 884, supra 10[b], the court disapproved of the doctrine
to exercise reasonable care. The Rodriguez court noted that the court in the Aime Case used this reasonable care approach
notwithstanding its purported adherence to the highest care standard.
28

29
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Liability of land carrier to passenger who becomes victim..., 43 A.L.R.4th 189...

43 A.L.R.4th 189 (Originally published in 1986)

American Law Reports

Sonja A. Soehnel, J.D.

Table of Cases, Laws, and Rules

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10[b] Assaulter not intoxicatedLiability not established

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0 Related matters 1[b]

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Table of Cases, Laws, and Rules

District of Columbia Circuit

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County 1955) 14[a]

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1[b] IntroductionRelated matters

II. General considerations

3. Carrier employees duty with respect to intoxicated passenger

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with respect to an intoxicated passenger was governed by the common law.

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4. Carriers duty to use physical force to protect assault victim

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III. Liability in particular circumstances

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5[a] Assaulters conduct directed toward plaintiff passengerassaulter intoxicatedLiability supportable

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6[a] Assaulter not intoxicatedLiability supportable

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6[b] Assaulter not intoxicatedLiability not established

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assaulted the plaintiff.

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8. Assaulter not intoxicated

B. Streetcar, elevated train, or subway passengers

9[a] Assaulters conduct directed toward plaintiff passengerassaulter intoxicatedLiability supportable

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10[a] Assaulter not intoxicatedLiability supportable

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