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been expected “under the circumstances of them, after witnessing an indignity to a the case, and the condition of the parties,” young woman, collared a rowdy and took and appellee was not required to take pre- him out of the car. Because the St. Joseph cautions to prevent the doing of that which passengers interfered with the prerogative it had no reasonable cause to suspect would of the Gower boys to be vulgar and vicious be done.

and vile, the latter became incensed, and Tall v. Baltimore Stean l'acket Co. 90 turned their distempered thoughts to the Md. 248, 47 L. R. A. 120, 44 Atl. 1007; subject of revenge. They cursed the St. Felton v. Chicago, R. I. & P. R. Co. 69 Joseph people, and swore they would get lowa, 577, 29 N. W. 618; New Orleans, St. even when they got off the train at Gower. L. & C. R. Co. v. Burke, 53 Miss. 200, 24 Many persons in many parts of the train Am. Rep. 689; Britton v. Atlanta & C. Air- heard these threats, and heard them repeatLine R. Co. 88 N. C. 536; Batton v. South & ed many times. They kept saying they Porth Ala. R. Co. 77 Ala. 591, 54 Am. Rep. would fix the St. Joe people when they got 80; Sira v. Wabash R. Co. 115 Mo. 127, 37 off at Gower; they would even up with the Am. St. Rep. 386, 21 S. W. 905; 1 Fetter, St. Joe people; they would have revenge on Carr. Pass. $ 96, p. 229.

the St. Joe people when they got off the The party who committed the assault upon train. This threatening talk continued for appellant was no longer a passenger upon a long time before the town of Gower was appellee's train, if, indeed, he ever had been reached. The train officials frequently a passenger thereon. The act committed passed by while it was going on. One man by him was the act of a stranger, which who went through the train with the concould not have been foreseen by appellee, ductor heard it, and many men and women and for which it is not liable.

heard it in the presence of the conductor. Fewings v. Mendenhall, 88 Minn. 336, 60 Upon its arrival at Gower the train had L. R. A. 601, 93 N. W. 127; Fredericks v. stopped but a moment until these threats Northern C. R. Co. 157 Pa. 103, 22 L. R. A. were being carried out. No sooner had the 306, 27 Atl. 689; Louisville & N. R. Co. v. Gower party alighted, than some of them McEwan, 17 Ky. L. Rep. 406, 31 S. W. 465. assailed the persons who remained upon the

train with a fusilade of cinders and gravel Burch, J., delivered the opinion of the and dirt thrown through the open windows, court:

and which, scattering, beat noisily against Among the many restless rushings to and the outside of the cars. Men and women fro of fretful man upon the earth was a suffered alike, and one gentleman Sunday excursion in July, 1901, from St. struck on the side of the head with a rock. Joseph to Excelsior Springs, Missouri, and Others of the ruffians walked forward and return, conducted by the St. Joseph & back, ramming their rude canes into the car Grand Island Railroad Company. The and punching the passengers. As he did little town of Gower, located some 14 miles so one of them ejaculated, “How do you from St. Joseph, contributed, 8 or 10 young like that ?" While this was going on, one men to the ferment of the teeming train. of the two conductors in charge of the exThe schedule gave the day to the excursion-cursion assisted the passengers to alight, ists at the Springs. On the return home and then walked to the forward end of the ward in the evening it soon became distress-train where the other conductor was found ingly apparent that the Gower boys had reading orders to the engineer. As the abused their holiday into a drunken spree. train started, both conductors stepped on Hilarity was presently succeeded by ef- the steps at the front end of the first pasfrontery, which readily descended to vulgar- senger car where they remained until a ity, and tended constantly to reach the pitch switch had been passed and closed, and then of maudlin fuss and quarrel. They surged they went inside the car. This constituted back and forth along the aisles of the cars the sum total of their watchfulness over the with swagger and oath and a hubbub of human beings in their care. As passengers babble and a fanfaronade of clubs they had on the train that night were Ada Spangler, cut for canes, corrupting the air with the a maiden of seventeen years, and her escort, fumes of liquor and of cigarettes, hectoring Joseph Manon. Their homes were in St. men and insulting women, entirely beyond Joseph. They occupied a seat together in the endurance of the rasped nerves and the forward part of the second passenger galled sensibilities of the decent people on coach from the engine, and, though certain the train. Some of the passengers were ugly circumstances of the turmoil of that intimidated and made afraid. Many pro- night had transpired near them, they had tests and appeals were made to the train- not become involved in it themselves. The men, whose efforts to preserve order were air was pleasanter near the window, and quite feeble. Passengers themselves re- she sat on that side of the seat.

It was monstrated with the young men, and one of 'nearing 10 o'clock when they approached

was

Gower, and she had been leaning her head the conductor did not do all he could to stop upon an improvised pillow he had made for the fighting, there was negligence. Whilst her, but had not been asleep. At Gower the conductor is not provided with a force they were both sitting upright, and while sufficient to resist such a raid as was made the train was standing still heard the storm upon the train in this instance, he has, of cinders and gravel striking against the nevertheless, large powers at his disposal, side of the car. During the confusion one and, if properly used, they are generally of the Gower boys came to their open sufficient to preserve order within the cars, window, and thrust his club cane through and to expel disturbers of the peace. His it, striking her in the breast, and causing official character and position are her to cry out “Oh!” Mr. Manon im- power. Then he may stop the train, and mediately closed the window, and just after call to his assistance the engineer, the firethe train had started a heavy iron burr man, all the brakemen, and such passengers from off a bolt, hurled by the hand of one as are willing to lend a helping hand; and who dropped his cane to do so, came crash- it must be a very formidable mob, indeed, ing through the glass and struck her in the more formidable than we have reason to beeye. She fell forward, and, as he caught | lieve had obtruded into these cars,- that her, all limp and apparently unconscious, can resist such a force. Until at least he and endeavored to support her head with his has put forth the forces at his disposal, no arm, the fluid portions of her eye ran out conductor has a right to abandon the scene upon his hand. Upon the trial of an action of conflict. To keep his train in motion, for damages brought against the railroad and busy himself with collecting fares in company for this injury a demurrer to forward cars whilst a general fight was evidence from which the foregoing facts are raging in the rearmost car, where the lady gleaned was sustained, and Miss Spangler passengers had been placed, was to fall far brings the case here for review.

short of his duty." Pittsburgh, Ft. W. & The law of the case is clear enough. "It C. R. Co. v. Hinds, 53 Pa. 512, 517, 91 Am. is the duty of a railway company carrying Dec. 224. passengers to provide for their quiet and These rules, however, are subject to the comfort, and secure them against the annoy- qualification that the carrier shall know of ing and offensive conduct of other pas- the threatened injury, or shall have opporsengers; and where the conduct of a pas- tunity to know of it, or reasonably might senger is such as to render his presence have anticipated, under all the circumdangerous to fellow passengers, and such as stances, it would happen. 5 Am. & Eng. will occasion them serious annoyance and Enc. Law, p. 553; Flint v. Norwich & N.Y. discomfort, it is not only the right, but the Transp. Co. 34 Conn. 554, 6 Blatchf. 158, duty, of a railroad company to exclude such Fed. Cas. No. 4,873. In 1 Fetter, Carr. passenger from its train.” Atchison, T. & Pass. & 96, the subject is summed up in the 8. F. R. Co. v. Weber, 33 Kan. 543, 52 Am. following manner: “Carriers of passengers Rep. 543, 6 Pac. 877. This duty to make are not insurers of the entire immunity of passengers secure is not limited to conduct their passengers from the misconduct of exhibited in the interior of the train, but fellow passengers or of strangers, any more applies to assaults coming from the outside than they are insurers of the absolute safety of the car as well. If the danger threatens of passengers in other respects. Nor can from alongside the car, it should be avert. the carrier be held liable for such mised precisely the same as if impending on conduct on the principle of respondeat any of its platforms or in any of its apart superior, as in the case of the misconduct of ments. It would be a lame rule, indeed, his servants. But, although the doctrine which required nothing more than that a is of comparatively recent growth, it is now vicious person should be put off the train, firmly established that a carrier of passenand then left raging up and down its length, gers inust exercise the same high degree of firing missiles through its window. The care to protect them from the wrongful acts Gower boys could have been separated from of their fellow passengers or of strangers the orderly and sober part of the passengers that is required for the prevention of while on the train, and when discharged casualties in the management and operation from the car could have been sent away of its trains, namely, the utmost care, from it, and kept away from it until it was vigilance, and precaution consistent with safe to proceed. For this purpose the con- the mode of conveyance, and with its ductor had the right, if necessary, to call practical operation. While not required to upon all the trainmen and such passengers furnish a police force sufficient to overcome as were willing to assist. While not an all force when unexpectedly and suddenly insurer of the safety of its passengers, the offered, it is the carrier's duty to provide railroad company was bound to exercise the ready help sufficient to protect the passenstrictest diligence in protecting them. "If'ger against assaults from every quarter which might reasonably be expected to oc- l of a jury upon them. A critical analysis cur, under the circumstances of the case and of the testimony is not necessary. From the condition of the parties; and, having the evidence relating to the character, confurnished such force, the carrier is charge- dition, and conduct of the young men it is able with their neglect in failing to protect reasonable to conclude that some depredaa passenger from assaults by strangers. tion was to be committed upon the St. This strict rule of duty must, however, be Joseph passengers at Gower. It is fairly applied in view of the relation which the inferable that the conductor knew, or should carrier sustains to all the passengers, and have known, of this danger, and hence that the circumstances of each particular case he should have exercised the highest calling for its exercise. Knowledge of the vigilance and diligence to subvert it; that existence of the danger, or of facts and he failed to employ to that end any of the circumstances from which the danger may means at his command; and that the plainbe reasonably anticipated, is necessary to tiff's injury was the result of his negligence. fix a liability upon the carrier for damages Therefore the judgment of the District sustained in consequence of failure to guard Court is reversed, with the direction that a against it." Such being the law appli- new trial be granted. cable to the facts, the question remains whether or not the facts disclosed were suf- All the Justices concur. ficient to entitle the plaintiff to the verdict

KENTUCKY COURT OF APPEALS.

v.

John DIEBOLD, Appt.,

municipality, the authority to use which is

conferred by the legislature. KENTUCKY TRACTION COMPANY OF

(December 17, 1903.) LOUISVILLE.

A a (...... . Ky.........)

Chancery Division of the Circuit Court

for Jefferson County dismissing a bill filed 1. An electric railway to be operated between two cities in different states

to enjoin the construction of defendant's and carry passengers and freight is a

tracks in certain streets. Affirmed. trunk railway, within the meaning of an The facts are stated in the opinion. exception of such railways from a constitu- Mr. C. H. Shield for appellant. tional provision prohibiting municipal cor

Messrs. Joseph G. Sachs and Helm, porations from granting franchises except to the highest bidder ; so that the municipality Bruce, & Helm, with Messrs. D. W. Sanmay grant it the right to lay its tracks along ders and William B. Thomas, for appelits streets without the necessity of receiving lee: bids for the privilege.

Appellee was organized under the railroad 2. A trunk railway is a commercial laws of the state, and necessarily must posrailway, whose main line, whether operated

sess all the powers possessed by other railby steam, electricity, or any other motive power, connects towns, cities, counties, or other road corporations organized under those points within the state or in different states, laws. Its powers and character are deterand which railroad company, under its char- mined by the charter and state laws, and not ter, or under the general law, has the legal by the ordinance granting it rights of way capacity of constructing, purchasing, and op into the city of Louisville. erating branch lines or feeders connecting with its main stem or trunk; the main or

Where an electric railroad has been incortrunk line bearing the same relation to its purated under the railroad law of the state branches that the trunk of a tree bears to its it becomes a railroad. branches, or the main stream of a river bears Elizabethtown, L. & B. 8. R. Co. v. Ashto its tributaries.

land d ('. Street R. Co. 96 Ky. 355, 26 S. W. 3. A municipal corporation grants no

181. franchise to a railroad company in regulating the manner in which, under its A street railway is for the use of the local charter, it shall make use of streets in the public in a municipality, runs along the

NOTE.—As to what constitutes a "railroad" | 693 ; Funk v. St. Paul City R. Co. 29 L. R. A. within the meaning of various statutes, see, in 208; Bloxham v. Consumers' Electric Light & this series, Montgomery v. Philadelphia City Street R. Co. 29 L. R. A. 507; Wade v. Lutcher Pass. R. Co. 9 L. R. A. 369; Thomson-Houston & M. C. Lumber Co. 33 L. R. A. 255 ; Ferguson Electric Co. v. Simon, 10 L. R. A. 251 ; Front v. Sherman, 37 L. R. A, 622; State v. Duluth Street Cable R. Co. V. Johnson, 11 L. R. A. 693 ; Gas & Water Co. 57 L. R. A. 63 ; and Savannah, Katzenberger v. Lawo, 13 L. R. A. 185 ; Byrne | T. & I. of H. R. Co. v. Williams, 61 L. R. A. v. Kansas City, Ft. S. & M. R. Co. 24 L. R. A. 249.

streets at grade, and is for the mere local city of Louisville, an ordinance granting to convenience of passengers going from point it a right of way from a point on its southto point within the limits of the city. ern boundary, along and over parts of cer

Louisville & P. R. Co. v. Louisville City tain named streets and alleys, to Center and R. Co. 2 Duv. 175; Johnson v. Louisville Jefferson streets. One of the highways over City R. Co. 10 Bush, 233; 1 Lewis, Em. which the franchise granted by the municDom. $ 110a; Zehren v. Milwaukee Electric ipality extends is that part of Sixteenth R. & Light Co. 99 Wis. 83, 41 L. R. A. 575, street upon which appellant's property 67 Am. St. Rep. 850, 74 N. W. 538; East fronts. Conceiving that the franchise End Street R. Co. v. Doyle, 88 Tenn. 747, 9 granted to appellee was void, as being vioL. R. A. 100, 17 Am. St. Rep. 933, 13 S. W. lative of the provisions of g 164 of the Con936; Malott v. Collinsville, C. & E. St. L. istitution, which requires that all franchises Electric R. Co. 47 C. C. A. 345, 108 Fed. included within its language be sold to the 313; Lieberman v. Chicago ds. 8. Rapid highest bidder, appellant instituted this acTransit R. Co. 141 Ill. 140, 30 N. E. 544; tion for an injunction to prohibit the buildMassachusetts Loan & T. Co. v. Hamilton, ing of the proposed line along Sixteenth 32 C. C. A. 46, 59 U. S. App. 403, 88 Fed. street in front of his property. 589; Williams v. City Electric Street R. Co. The pleading in this case aptly raises the 41 Fed. 556; Buckner v. Hart, 52 Fed. 835; one question involved in the record, whether Chicago & N. W.R. Co. v. Milwaukee, R. & K. or not the proposed road is a trunk railroad Electric R. Co. 95 Wis. 561, 37 L. R. A. 856, within the meaning of g 164. If it is, ap60 Am. St. Rep. 136, 70 N. W. 678; Louis- pellant has no cause of action; if it is not, rille & N. R. Co. v. Anchors, 114 Ala. 492, the injunction prayed for should have been 62 Am. St. Rep. 116, 22 So. 279; Bridal Veil awarded. Trunk railroads are specifically Lumbering Co. v. Johnson, 30 Or. 205, 34 L. excepted from the provisions of § 164. The R. A. 368, 60 Am. St. Rep. 818, 46 Pac. 790. opinion of the learned chancellor below fully

If a railroad company is given the power, meets our view upon the question for adby an act of the legislature, to run along the judication, and it is adopted as the opinion streets of a city, and the city is simply given of the court, and is as follows: To decide the power of regulation, or of fixing the the questions of law which arise on this moterms and conditions upon which this fran- tion, two sections the Constitution of chise shall be exercised, then the ordinance Kentucky have to be considered, to wit, $$ will be treated as simply an exercise of that 163 and 164. Section 163 is as follows: admitted power of regulation, and no more. “No street railway, gas, water, steam heat

American Union Teleg. Co. v. Harrison, 31 ing, telephone, or electric light company N. J. Eq. 627; Ex parte Byrd, 84 Ala. 17, 5 within a city or town shall be permitted or Am. St. Rep. 328, 4 So. 397.

authorized to construct its tracks, lay its This railroad cannot in any possible sense pipes or mains, or erect its poles, posts, or be said to be a "street railway,” within the other apparatus, along, over, under, or meaning of g 163 of the Constitution. It across the streets, alleys, or public grounds manifestly is not such an enterprise as the of a city or town without the consent of the members referred to in adopting that instru- proper legislative bodies or boards of such ment.

city or town being first obtained; but when Elizabethtown, L. & B. S. R. Co. v. Ash-charters have been heretofore granted conferland & C. Street R. Co. 96 Ky. 347, 26 S. W. ring such rights, and work has in good faith 181.

been begun thereunder, the provisions of

this section shall not apply." Section 164: Barker, J., delivered the opinion of the “No county, city, town, taxing district, or court:

other municipality shall be authorized or The appellant, John Diebold, is a citizen permitted to grant any franchise or priviof Louisville, Kentucky, and owns real prop- lege, or make any contract in reference erty fronting on Sixteenth street, which is thereto, for a term exceeding twenty years. one of the highways of that city. The ap- Before granting such franchise or privilege pellee, the Kentucky Traction Company of for a term of years such municipality shall Louisville, is railroad corporation organ- first, after due advertisement, receive bids ized under the General Statutes of Ken- therefor publicly, and award the same to the tucky, having power and authority, under highest and best bidder; but it shall have its charter, to construct and operate an elec- the right to reject any or all bids. This tric line from Louisville, Kentucky, to section shall not apply to a trunk railway.” Nashville, Tennessee, and to be a common The question to be decided sharply on this carrier of both passengers and freight, when motion is whether the appellee, having its in operation. As a necessary prerequisits termini in Louisville and Nashville, under to the building of the proposed line, appel- its original and amended charter, is a street lee secured, from the general council of the railway, and therefore within the constitutional prohibition against such a grant as nois Central Railroad Company, the Louisthat contained in the ordinance referred to, ville & Nashville Railroad Company, or an or a trunk railway, and thereby expressly interurban or interstate railroad company, excluded by § 164 from the prohibitory all having the same corporate purposes, and operation of the two sections of the state performing the same important public funcConstitution above quoted. Whether a rail. tions for the convenience and good of the way is a street railway or a trunk railway, public, in transporting passengers, freight, it will not be contended, we apprehend, de- and express matter, for the advancement pends or the motor power employed by it in of commerce between towns and cities withpropelling its rolling stock over and along in a state, or between towns and cities withits tracks. It certainly can make no differ- in different states, is obliged, in order to acence whether the cars of a railroad company complish the corporate purposes of its creaare propelled by the agency of steam, or of tion, to have terminal points, as passenger gasoline, or of electricity, compressed air, or freight depots, to reach which it is necesliquified air, or any other agency which sci- sary to lay its tracks along the streets withence and the inventive genius of man may in in a city or town, does not make such railthe future bring into use. Rather the char- road company a street railway, and impress acter of a railroad company is determined upon it a local, intramural character, such by the nature and extent and limits put up as is possessed by gas, water, steam heating, on its operation by law or otherwise, and and electric light companies, enumerated in by the character and object of its corporate $ 163 of the state Constitution, above quotcreation as shown by its charter. By the ed. If a railroad company, whether operoriginal charter of the Louisville & Nashville ated by steam or electricity as a motor powRailroad, it was authorized and empowered er, which lays its tracks and connects in to lay its tracks and propel its cars thereon commercial relationship different towns, between Louisville and Nashville, and was cities, counties, and other municipalities authorized and empowered, just as the ap- within a state, or cities of different states, pellee in this case is authorized and empow. be not a trunk railway, then it is difficult to ered, to transport passengers, freight, and understand what a trunk railway is. We express matter to all intermediate points, have examined all the recognized authorities towns, cities, and counties between Louis- upon railroads and railways, and have been ville and Nashville, and to erect its depots unable to find, in any text-book or decision, to accomplish its corporate purposes, just the phrase "trunk railway," or anything as the appellee here is authorized and em- that approaches the same. In Elizabethpowered to do. The only difference in char- town, L. & B. S. R. Co. v. Ashland & C. acter, legal or otherwise, between the appel. Street R. Co. 96 Ky. 355, 26 S. W. 181, the lee and the Louisville & Nashville Railroad, court said: "It is urged, however, that the under its charter, is that one has steam for appellee (the street railway company) is not a motor power,

the other has electric- a railway company in the meaning of the ity; both are interurban and interstate rail- section of the Constitution quoted. We road corporations. It is difficult to under think, whatever may be said of street railstand what the phrase "a trunk railway" ways in general, that the charter of this clearly means, if it does not mean an inter-company puts it in the class indicated by urban and an interstate railway for commer- that section. The railway was to connect cial purposes.

two cities. It might use steam, horse, or Appellant insists that appellee is a street other propelling power on said road in the railway within the meaning of g 163 of the transportation of freight and passengers.” state Constitution, above quoted. It will be In the case under consideration, the appelobserved at a glance that the framers of g lee was organized under the general railroad 163 of the state Constitution intended that laws of this state, just as a railroad corporathe restricted character of the street rail- tion extending its line from the city of way, as a strictly local intramural street car | Louisville to any distant point in the state company, should be understood as such by of Kentucky, or to any city or point in a the classification and association of the distant state (assuming that the foreign street railway referred to i that section states accorded the right or privilege to the with gas companies, water companies, steam Kentucky corporation in or across their terheating companies, telephone companies, and ritory), would have to be organized. And electric light companies, all of which are unless the agency of propulsion adopted by strictly intramural, and essentially and ex- a railroad determines its legal character as clusively local, in their scope and operation a street railway or a railroad trunk line, it in cities, towns, and other municipalities. is impossible to conceive of any distinction The fact that a railroad company, whether between the two. It seems to us that it is operated by electricity or steam, such as the the charter of a company which places it in Chesapeake & Ohio Railroad Company, Illi. I the class to which it belongs, whether street

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