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(108 Ohio St. 484, 141 N. E. 267.)

jury that, in order for plaintiff to recover, they must find that Driscoll was at the time in the employ of the defendants and performing his usual duties as a taxicab driver. It was therefore claimed by defendants' counsel that, inasmuch as the driver's duties usually ended at usually ended at 6:30 in the evening, the act was not committed by him while performing his usual duties as a driver. Inasmuch as Driscoll was a regular employee of the defendants, and this service was rendered by him while using one of the conveyances of the defendant, for which the usual fee was paid directly into the hands of one of the defendants, it would be ridiculously technical to hold that the service was thereby rendered otherwise than in the performance of his usual duties.

Having found that the relation of carrier and passenger exists, it only remains to determine and declare the duty owing by a common carrier to protect passengers against insults and assaults by the carrier's employees and servants during the course of the transportation.

It is claimed by counsel for the defendants that the carrier can only be held responsible for negligent and careless driving, and that the carrier is not responsible if it has exercised ordinary care in selecting drivers who are competent and skilful in operating a taxi. This court has recently declared in the case of Elliott v. Harding, 107 Ohio St. 501, A.L.R., 140 N. E. 338, that the owner of any motor vehicle may be held responsible for damages caused by an incompetent incompetent driver, known to be such by the owner. The instant case, however, is based upon a very different principle. The issues in this case are not confused or complicated by any such considerations as a troublesome or intoxicated passenger, or one who refuses to pay fare, or an altercation between passenger and the servants of the carrier, neither is there any claim that the girl was the aggressor, or that her

injury and damage are chargeable to her own acts or negligence. The act of the driver was unprovoked and was committed while discharging the duties of his employment, and while using the facilities and equipment of his employer, and for which the employer received the compensation usually paid for such service. The facts, therefore, make the Master and servstrongest possible for acts after case, and the injury and damages were of a most grievous character. This case does not involve any new principle of law, and it is only novel in that it is sought to apply the same principles to motor traffic which are commonly applied to other kinds of public transportation.

ant-liability

working hours.

Among the reported cases are found a very large number similar in kind to the instant case, and differing only in the character of the assault and the extent of damage perpetrated. Among the early cases can be found a few of a contrary tenor, but the overwhelming weight of authority, even among the earlier cases, and an unbroken unanimity among the later cases, charge the carrier with liability for unwarrantable assaults upon passengers by the servants of the carrier. The carrier's obligation is to carry the passen- -assault by ger safely and driver-liaproperly and to treat him respectfully, and if the performance of this duty is intrusted to an agent or servant the carrier is held to a strict responsibility for the assaults and insults of such servants. We will notice only a few cases which are of a very similar nature.

bility.

In the case of Dwinelle v. New York C. & H. R. R. Co. 120 N. Y. 117, 125, 8 L.R.A. 224, 17 Am. St. Rep. 611, 24 N. E. 322, a passenger was assaulted by the porter of a sleeping car, the porter not being employed by the railroad company, but the Pullman car was a part of the train in which the passenger was being transported. The court

in that case used the following language: "A common carrier is bound, so far as practicable, to protect his passengers, while being conveyed, from violence committed by strangers and copassengers, and he undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract . from an assault committed upon a pasenger by a servant intrusted with the execution of a contract of a common carrier."

In Garvik v. Burlington, C. R. & N. R. Co. 131 Iowa, 415, 117 Am. St. Rep. 432, 108 N. W. 327, a brakeman followed a girl into the toilet of a day coach in the early morning, and criminally assaulted her. The following is quoted from the syllabus: "A railway company is liable in damages for a rape committed on one of its passengers by an employee."

In Campbell v. Pullman Palace Car Co. (C. C.) 42 Fed. 484, the Pullman Company was held responsible for an indecent assault made upon a female passenger by the porter of the car. This case was affirmed without official report by the Supreme Court of the United States.

In New Orleans, J. & G. N. R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98, it was held: "A railroad company impliedly warrants that its engineers, conductors, and other employees engaged in running its trains are possessed of due skill, and are competent and faithful; and it is liable under all circumstances for any injury occasioned by the misconduct, rashness, or negligence of such person; and where an injury is caused by the gross negligence or wanton and wilful misconduct of its employees, it is liable for exemplary damages."

In the case of Savannah, F. & W. R. Co. v. Quo, 103 Ga. 125, 40 L.R.A. 483, 68 Am. St. Rep. 85, 29 S. E. 607, 3 Am. Neg. Rep. 777, the following proposition of law is stated in the syllabus: "It is a carrier's duty to protect passengers

from injury, violence, insult, and ill treatment at the hands of its employees during the course of transportation. . . . If a person employed by a railroad company as a baggage-master upon one of its trains assaults a female passenger thereon, with intent to commit a rape upon her, the company is answerable in damages to her for the act."

In all of the foregoing cases it is very clear that the employees went far beyond the regular duties incumbent upon them as servants of the carrier, but the carriers were nevertheless held liable to respond in damages for such acts.

The text-writers have laboriously reviewed a large number of authorities and have deduced therefrom rules in accord with the principles herein stated. 3 Thomp. Neg. §§ 3184 and 3185; 2 Shearm. & Redf. Neg. 6th ed. § 513.

So far as rail transportation is concerned, the rule may be regarded as firmly established that carriers insure passengers against unwarrantable assaults and insults at the hands of the carrier's agents and servants while in the course of the journey under a contract of carriage.

Upon what principle should a different rule apply to motor vehicles? Motor vehicles to- Carriers-liabflday occupy a larger ity of operator place in the social, of taxicab. industrial, industrial, and economic fabric than any other factor of twentieth century civilization. The automobile is contributing very largely to the pleasure of the people, while at the same time the reckless use of same is taking a tremendous toll of life and limb. More and more each year it is increasing as a factor in commercial transportation of freight and passengers, and in many communities is driving electric traction from the field. More important and more dangerous is the fact that motor vehicles are used as the instrumentalities of crime, especially the crimes of robbery and rape, and as a means of

(108 Ohio St. 484, 141 N. E. 267.)

escape and thwarting the administration of justice. All these facts are known and recognized by the public, and the courts would be grossly remiss in the discharge of their duties if they failed to recognize them and guard against them by declaring rules and principles calculated to overcome the wellknown evil tendencies.

In many of our larger cities, where public officials are notoriously failing and refusing to enforce certain laws because of their antipathy to such laws, thereby causing a general increase of crime and permitting lawlessness to progress beyond control, the public taxi has been utilized as a means of safety to those who are compelled to traverse the streets of such localities after nightfall. This last resort of safety will have been lost, if the public cannot have the assurance that drivers of public taxicabs are men of integrity and character.

This assurance can only prevail

if the owners of such vehicles employed in public transportation of passengers are held to a strict accountability for unwarrantable assaults and insults at the hands of employees in charge of such passengers.

Therefore, upon principle, as well as analogous authority, it is the judgment of this court that the judgments of the lower courts should be affirmed.

Wanamaker, Robinson, Jones, Matthias, Day, and Allen, JJ., con

cur.

NOTE.

The annotation in 4 A.L.R. 1499, which is supplemented by annotation following ANDERSON V. YELLOW CAB Co. post, 1202, deals with the duty and liability of carriers of passengers for hire by automobile; the duty and liability of proprietors of taxicabs being specifically treated in subd. II. of those annotations.

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Carrier care due from operator of taxicab.

1. The reasonable care which the operator of a taxicab owes to his passenger is the highest degree of care consistent with the proper transaction of the business.

[See note on this question beginning on page 1202.] Words and phrases "taxicab."

2. A "taxicab" is a conveyance similar to a hackney coach, but propelled by electric or steam power, and held for public hire at designated places subject to municipal control. Carrier public - necessity of being public utility.

3. To constitute a public conveyance a common carrier it is not necessary that it come within the definition of a public utility so as to be subjected to the rules and regulations of the

public utility commission, or move between fixed termini or upon fixed routes, or have fixed charges.

common

-

- taxicab as.

4. One operating a taxicab to convey passengers about a city, which is subject to the call of the public, and who charges a uniform mileage rate for services, is a common carrier.

[See 1 R. C. L. Supp. 1163; 4 R. C. L. Supp. 275. See also note in 4 A.L.R. 1501.]

APPEAL by defendant from a judgment of the Circuit Court for Milwaukee County (Fritz, J.) in favor of plaintiff in an action brought to recover damages alleged to have been caused by the negligent operation of defendant's automobile. Affirmed.

Statement by Doerfler, J.:

This is an appeal from the judgment of the circuit court of Milwaukee county in favor of the plaintiff, for the sum of $555.04 damages and costs.

The defendant is the owner of twenty-eight taxicabs used for conveying passengers in the city of Milwaukee, and it has a general office in such city, from which taxicabs are despatched for the purpose of conveying passengers from place to another; such taxicabs being operated pursuant to a regular rate applied to the number of miles traveled, registered upon a device known as a taximeter.

one

The plaintiff, a married woman residing on Fifty-first street, between Vliet and Galena streets, in Milwaukee, on the 14th day of June, 1920, phoned to the general office of the defendant for a taxicab to convey her from the corner of Grand avenue and West Water street in the city of Milwaukee, to her home. Pursuant to an order of the defendant, one of its taxicabs stationed at the Chicago & Northwestern depot was despatched to where the plaintiff awaited the cab, and the driver, after receiving directions as to the place of destination, proceeded on the journey, and when he arrived at or about the intersection of Vliet

and Fifty-first streets, the plaintiff was twice violently thrown from her seat to the ceiling of the automobile, and sustained severe injuries. It appears from plaintiff's evidence that at the place where the injuries were sustained the road was in a defective condition, and that the cab was driven at an excessive rate of speed.

The case was submitted to the jury upon a special verdict, in which the jury found: (1) That the cab was operated in such a manner as to cause the plaintiff to be violently thrown from the seat;

(2) that the driver of the cab was guilty of negligence in operating it in such manner; and (3) that such negligence was the proximate cause of the injury.

After verdict, the defendant moved first for judgment in its favor, notwithstanding the verdict; and, second, for the court to change the answers to questions 1, 2, and 3 of the special verdict from "Yes" to "No," and for judgment upon such verdict as so changed, and for a new trial for alleged errors contained in the instructions. Defendant's motions were denied by the court, and judgment was thereupon ordered and entered in plaintiff's favor as above stated.

Messrs. Cannon, Bancroft, & Waldron, for appellant:

The passenger necessarily assumes all incidental risks outside of the negligence of the carrier. There can be no recovery in the absence of negligence, and the burden of proving it is upon the plaintiff.

6 Cyc. pp. 590, 629; Wanzer v. Chippewa Valley Electric R. Co. 108 Wis. 319, 84 N. W. 423; Davis v. Chicago, M. & St. P. R. Co. 93 Wis. 470, 33 L.R.A. 654, 57 Am. St. Rep. 935, 67 N. W. 16, 1132, 10 Am. Neg. Cas. 507; Block v. Milwaukee Street R. Co. 89 Wis. 378, 27 L.R.A. 365, 46 Am. St. Rep. 849, 61 N. W. 1101; McGowan v. Chicago & N. W. R. Co. 91 Wis. 147, Transp. Co. 60 Wis. 141, 50 Am. Rep. 64 N. W. 891; Atkinson v. Goodrich

352, 18 N. W. 764.

Weighing the testimony of plaintiff concerning the manner in which the accident occurred, that "he must have driven into some holes," as contrasted to the positive testimony of an entirely disinterested witness as to the condition of the street at the time and place where plaintiff said the accident occurred, gives a clear preponderance of the credible evidence in favor of the defendant.

Ralph v. Chicago & N. W. R. Co. 32 Wis. 177, 14 Am. Rep. 725; Hildman v. Phillips, 106 Wis. 611, 82 N. W. 566, 7 Am. Neg. Rep. 705; Coel v. Green

(179 Wis. 300, 191 N. W. 748.)

Bay Traction Co. 147 Wis. 229, 133 N. W. 23; Draper v. Baker, 61 Wis. 450, 50 Am. Rep. 143, 21 N. W. 527; Jones, Ev. § 898.

The defendant company acted in the same capacity as an auto delivery, and the rule applied to the keeper of a livery is not the rule applied to a common carrier.

McGregor v. Gill, 114 Tenn. 521, 108 Am. St. Rep. 919, 86 S. W. 318; Terminal Taxicab Co. v. Kutz, 241 U. S. 252, 60 L. ed. 984, P.U.R.1916D, 972, 36 Sup. Ct. Rep. 583, Ann. Cas. 1916D, 765.

Messrs. William A. Schroeder and Horace B. Walmsley, for respondent: There is sufficient evidence of negligence.

Peschel v. Klug, 170 Wis. 519, 175 N. W. 805.

Neither the trial court nor this court can change a jury verdict on account of mere preponderance of evidence.

Bates v. Chicago, M. & St. P. R. Co. 140 Wis. 242, 133 Am. St. Rep. 1069, 122 N. W. 745; Nash v. New York C. & H. R. R. Co. 125 N. Y. 715, 26 N. E. 267.

The jury are bound to apply their common general knowledge to the facts.

Barker v. Western U. Teleg. Co. 134 Wis. 152, 14 L.R.A. (N.S.) 533, 126 Am. St. Rep. 1017, 114 N. W. 439; Murphy v. Fond du Lac, 23 Wis. 367, 99 Am. Dec. 181.

The court cannot set aside any finding of a special verdict which has any evidence to support it.

Dahl v. Milwaukee City R. Co. 65 Wis. 371, 27 N. W. 185; Hanson v. Chippewa Valley & N. R. Co. 150 Wis. 104, 135 N. W. 488; Smith v. Reed, 141 Wis. 483, 124 N. W. 489; Maxon v. Gates, 136 Wis. 270, 116 N. W. 758; Pierson v. Citizens' Teleph. & Teleg. Co. 135 Wis. 73, 115 N. W. 336; Menominee River Sash & Door Co. v. Milwaukee & N. R. Co. 91 Wis. 447, 65 N. W. 176.

The instruction given to the jury to the effect that the defendant was a common carrier and owed to the plaintiff the care and duty which go with that relation was not error.

Braun v. Minneapolis, St. P. & S. Ste. M. R. Co. 170 Wis. 10, 172 N. W. 743; Rump v. Bresnan, 160 Wis. 179, 151 N. W. 251; E. L. Essley Machinery Co. v. First Trust Co. 160 Wis. 300, 151 N. W. 814; Falkner v. Schultz, 160

Wis. 594, 150 N. W. 424; Hommel v. Badger State Invest. Co. 166 Wis. 235, 165 N. W. 20; Ryan v. State, 168 Wis. 14, 168 N. W. 566; Bechmann v. Salzer, 168 Wis. 277, 169 N. W. 279.

Doerfler, J., delivered the opinion of the court:

The jury, among other things, was instructed as to the degree of care required by the defendant in the operation of its cab at the time and place in question, as follows: "The duty which the defendant, as a common carrier, owes to a passenger, requires the defendant's employees, for the safety of its passengers, in the operation of its cars, to exercise the highest degree of care reasonably to be expected from human vigilance and foresight in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of its business."

To this instruction defendant duly excepted; it being contended that the degree of care required by the driver of the cab is not that applicable to a common carrier, and that the defendant in the instant case was not a common carrier, and that it was merely liable for injuries sustained as a result of the failure to exercise ordinary care. In other words, defendant contended that the degree of care required of its driver was that applicable to one hiring a private conveyance for a specific purpose, from a garage or a livery stable.

The instruction given by the trial court is substantially in conformity with what has been laid down by the rule adopted in Ferguson v. Truax, 132 Wis. 478, 14 L.R.A. (N.S.) 350, 110 N. W. 395, 112 N. W. 513, 13 Ann. Cas. 1092, and Oberndorfer v. Pabst, 100 Wis. 505, 76 N. W. 338, and such rule is the rule in Wisconsin as applicable to the degree of care required of common carriers. The Ferguson Case is one involving the liability of a proprietor of a passenger elevator to a passenger, and in that case the following statement from 1 Hutch

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