or a complaint.' But it owes no duty to protect one coming upon its premises out of curiosity merely; 2 and it does not even owe the extraordinary duty to protect to one who is waiting at a station in order to meet a passenger.3 § 947. Duty of innkeepers to protect from third parties. The innkeeper, while not an insurer of a guest against personal injury, should protect him against injury from third persons so far as it is within his power to do so. Thus, where in the presence of an innkeeper, and without being prevented by him, one guest pinned a piece of paper on the coat of another guest and set it on fire, the innkeeper was held responsible to the injured guest for the injury thus caused. And so an innkeeper who, without warning, allows a guest to come to an inn in which he knows there is a contagious disease is responsible to the guest if he contracts the disease. But an innkeeper would not be responsible for an assault committed on one of his guests within the hotel by a stranger, provided he has taken all reasonable precautions to prevent such occurrences by excluding disorderly persons from his premises. There is one interesting case, which is probably 6 Petersburg Ry. Co., 117 N. C. 592, 23 S. E. 327, 4 L. R. A. (N. S.) 485 (1895), and cases cited. 1See particularly, Savannah Street Ry. Co. v. Bryan, 86 Ga. 312, 12 S. E. 307, 22 Am. St. Rep. 464 (1890), and cases cited. Gillis v. Pennsylvania R. R. Co., 59 Pa. St. 129, 98 Am. Dec. 317 (1868). See generally, § 371. Houston & T. C. R. R. Co. v. Phillio, 98 Tex. 18, 69 S. W. 994, 97 Am. St. Rep. 868, 59 L. R. A. 392 (1902). See generally, § 372. 4 Rommel v. Schambacher, 120 Pa. St. 579, 11 Atl. 779, 6 Am. St. Rep. 732 (1887). And see to the same effect, Curran v. Olson, 88 Minn. 307, 92 N. W. 1124, 60 L. R. A. 733, 97 Am. St. Rep. 517 (1903). 'Gilbert v. Hoffman, 66 Ia. 205, 23 N. W. 632, 55 Am. Rep. 263 (1885); Levy v. Corey, 1 City Ct. Rep. Supp. 57 (1884), accord. 6 Clancy v. Barker, 131 Fed. 161, 66 C. C. A. 469 (1904), semble. correct, which holds that where a woman was the innkeeper, she was not responsible for an assault upon a guest by her husband, as she could not exclude him from the premises.1 § 948. Special protection in sleeping cars. It is the duty of the sleeping car company to guard its passengers from harm so far as it may reasonably do so. Thus it must guard passengers from the attacks of wrongdoers, if such attacks can be foreseen; but where the attack cannot be foreseen, as in a case where a passenger is killed by an assassin, the company is not liable. "While not directly responsible to a passenger for a wrong inflicted by an intruder, or a stranger, or a fellow passenger, they are responsible for such injury if it appears that the companies knew, or ought to have known, that danger existed or was reasonably to be apprehended, and that they could, by the use of the agencies at their disposal, have prevented the mischief." So it the duty of the car company to protect its passenger, so far as it may, against annoyance and insult. Where the company allowed drunken persons to enter a sleeping car and use vulgar, profane and indecent language, it was liable in damages to a female passenger for the injury thereby sustained.3 Topic D. Duty to Act in Emergencies § 949. Duty to meet emergencies. As is discussed more fully elsewhere, almost all public servants are excused for unavoidable accidents in respect to which they are not negligent; and even with their exceptional liability, neither the carrier nor the innkeeper is liable for loss from overruling causes. Yet in all these 1 Curtis v. Dinneen, 4 Dak. 245, 30 N. W. 148 (1886). 2 Levien v. Webb, 30 N. Y. Misc. 196, 61 N. Y. Supp. 1113 (1899). 3 Connell v. Chesapeake & O. Ry. Co., 93 Va. 44, 24 S. E. 467, 57 Am. St. Rep. 786 (1896). cases of excusable accident a duty of care at once arises to make proper arrangements under the circumstances.1 This means that every effort must be taken to give adequate protection from further consequences of the accident. For instance, if a conductor on a railroad finds further progress barred by a washout, it is evidence of negligence if he fails to back the train in order to discharge his passengers at a suitable spot. But when a train stopped at a distance from burning oil cars, it was held that there was no necessity to warn passengers not to go nearer.1 § 950. Duty to repair damage. 3 Where the injury may be repaired wholly or partially at the place of accident, and where such a course is peculiarly necessary to prevent further deterioration, the elements of this new duty are obvious. The carrier must do what is reasonable to prevent deterioration of the goods or damage to them as a result of an accident. Thus although there is an inherent tendency in perishable goods to rapid deterioration, still if they could be preserved by unusual precautions, these should be taken. Thus if a cargo has been wet it should be dried if that is practicable. So perishable provisions should be iced if the departure of the carrier has been delayed.' And wrecked cars 1 Penn v. Buffalo & El. R. R. Co., 49 N. Y. 204, 10 Am. Rep. 355 (1872). See also Black v. Chicago, B. & Q. Ry. Co., 30 Neb. 197, 46 N. W. 428 (1890). 2 International & G. N. Ry. Co. v. Hynes, 3 Tex. Civ. App. 20, 21 S. W. 622 (1893). But see Empire Transportation Co. v. Wallace, 68 Pa. St. 302, 8 Am. Rep. 178 (1871). 3 Houston, E. & W. T. Ry. Co. v. Rogers, 16 Tex. Civ. App. 19, 40 S. W. 201 (1897). 4 Conroy v. Chicago, St. P., M. & O. R. R. Co., 96 Wis. 243, 70 N. W. 486, 38 L. R. A. 419 (1897). 5 Notara v. Henderson, L. R. 7 Q. B. 225 (1872). Steamboat Lynx v. King & F., 12 Mo. 272, 49 Am. Dec. 135 (1848). 7 Peck v. Weeks, 34 Conn. 145 (1867). should be guarded if that is possible.1 Of course in these as in other cases, if the law throws this rather extraordinary liability of care in emergencies on the companies, they may recoup themselves by a proper charge. And clearly special instructions by the shipper not to take precautions will excuse the carrier from so doing in the absence of any unexpected delay. § 951. Liability to stop performance. Unusual circumstances may call for the stopping of performance. Thus when a horse has been made sick by being frightened by the motion of the train, the car containing it should be sidetracked upon request where this is practicable.2 In a more extreme case it was held lately that where a woman traveling was taken with childbirth pains it was the duty of the conductor to accede to her request to stop the train at a town where there was a hospital although the train was not scheduled to stop there. To put less obvious cases, it has been held that where the transportation of peaches was stopped at a bridge which had been swept away and the delay promised to be so long that in the weather conditions then prevailing the fruit was sure to rot before it could be got to market even if another route were next attempted, the carrier had the extraordinary right, if indeed not the duty, to sell the fruit on the spot. The extraordinary law of this section is for extreme cases. A conductor is not obliged to stop a train to enable a passenger to recover a hand bag lost out a window.5 1 Lang v. Pennsylvania R. R. Co., 154 Pa. St. 342, 26 Atl. 370, 35 Am. St. Rep. 846 (1893). 2 Coupland v. Housatonic R. R. Co., 61 Conn. 531, 23 Atl. 870, 15 L. R. A. 534 (1892). 4 Central of Ga. Ry. Co. v. Madden (Ga.), 69 S. E. 165 (1910). American Express Co. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561 (1878). "Henderson v. Cent. Pass. Ry. § 952. Duty to take appropriate action. It is now well established that in most cases of this sort, the first thing that should be attempted by the carrier is to communicate with the owner of the goods for his further directions. Similarly a telegraph company should notify the sender, if there, of the cause preventing the delivery of the message.2 It may be that there is a duty to forward by some other connection if one is available.3 But there is no duty to go to extraordinary expense to complete one's own performance in a way never professed.* Generally speaking the duty is to take appropriate action. And the courts will properly hesitate to declare the course which the proprietors of the service took in the haste of an emergency unreasonable, if it was in good faith. Co., 140 U. S. 683, L. ed. 11 Sup. 1 Mississippi.-Alabama & V. Ry. Co. v. Brichett, 72 Miss. 891, 18 So. 421 (1895). New York.-Johnson V. New York C. R. R., 33 N. Y. 610, 88 Am. Dec. 416 (1865). United States. Swan v. Western Union Telegraph Co., 63 C. C. A. 550, 129 Fed. 318 (1904). North Carolina. Cogdell V. Western Union Telegraph Co., 135 3 Ohio.-American Exp. Co. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561 (1878). Washington.-Andrus v. Columbia & O. Stb. Co., 47 Wash. 333, 92 Pac. 128 (1907). 4 Missouri.-Silver v. Hall, 2 Mo. App. 557 (1876). Pennsylvania.-Empire Transportation Co. v. Wallace, 68 Pa. St. 302, 8 Am. Rep. 178 (1871). |