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the skidding of an automobile due to accident which occurred, and which the condition of the road after an occasioned the injury. This court unexpected shower of rain, and the there declared that the direction of case was held to be one for the jury, a verdict for the defendant was erfor the purpose of enabling the de- roneous, and that the question of fendant to exculpate himself from defendant's negligence was for the the presumption of negligence which jury. We there reiterated the rule arose from the unexplained and ab- that foresight for harm, in view of normal happening of the accident. an existing abnormal or dangerous In the last case mentioned, the plain- situation, standardized by the care tiff, an invitee in a department likely to be exercised, in the circumstore, was examining an ice box, stances, by the ordinarily prudent when the lid, which was supposed man, furnished the controlling test, to be securely upheld, suddenly fell, and we there observed that one is injuring her hand; and the same within the category "who, observing rule requiring an explanation upon the probability of impending danger the part of the defendant for the from adopting a certain course of purposes of exculpation was there action, does all that such a man applied.

could have reasonably done to avoid The tort-feasance in the case at inmeshing himself and those inbar consisted in negligence in op- trusted to his care in the dangerous eration, with notice of a dangerous environment that confronted him, defect which might cause damage to and thus creating the proximate those intrusted to defendant's care. cause or the causa sine qua non The defendant being a common car- which superinduced the accident." rier of persons, the high degree of Such is the rule applicable to the care required of him in the circum- situation existing in the case sub justances has become a proverbial rule dice; and the learned trial court, of law; and whether he exercised therefore, properly left the question that care in his conduct of the car, to the jury for solution. after having received notice on at The judgment appealed from will least three distinct occasions of an be affirmed. existing defect or an abnormal sit

For affirmance: The Chancellor, uation in one of the necessary or

the Chief Justice, Justices Trengans of locomotion, chard, Minturn, Kalisch, Black, and Trial-juryapparently of suffi

Katzenbach, and Judges Heppensenger on jitney cient moment to bus-explosion cause him to stop

heimer, Gardner, Van Buskirk, and

Clark. and look at the defective parts before proceeding fur- For reversal: None. ther upon his route, became a jury question.

NOTE. The case in this respect is not, in legal principle, unlike that of Beck The duty and liability of a carrier v. Hines, 95 N. J. L. 158, 112 Atl. of passengers for hire by automobile 332, where the captain of a ferry- is the subject of the annotation in 4 boat, presumably experienced in his A.L.R. 1499, which is supplemented by business, and with a possible danger the annotation following ANDERSON V. of an approaching vessel at high YELLOW CAB Co. post, 1202. More speed in sight, took the risk of specifically, as to the liability of probringing his boat sufficiently close to prietors of jitneys or motor busses, the on-coming danger to invite the see subd. I. of those annotations.

injury to pas

of tire,

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

C. H. KORNER et al., Doing Business under the Firm Name of C. H.

Korner & Son, Piffs, in Err.,


Ohio Supreme Court - October 23, 1923.

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

Carriers — liability of operator of taxicab.

1. The same rule and measure of responsibility attach to the owner and operator of a public taxicab for the acts of agents and servants as apply to other common carriers.

[See note on this question beginning on page 1202.] Master and servant liability for Carriers taxicabs. acts after working hours.

3. Persons owning and operating 2. A person employed as a driver of public taxicabs for the transportation a public taxicab, whose duties under of passengers, holding themselves out his contract of employment usually

as willing to carry persons generally end at 6:30 P. M., and who on a single

for hire, are “common carriers." occasion, without being specially re

[See 1 R. C. L. Supp. 1163; 4 R. C. L. quested so to do, drives one of the

Supp. 275. See also note in 4 A.L.R. vehicles of his employer, at about the

1501.] hour of midnight, in transporting a

assault by driver liability. passenger, the usual and customary

4. It is the duty of the driver of a fee for such service being collected by public taxicab to treat passengers the driver, and the same being prompt- respectfully, and the owner of such ly paid to the employer, is engaged in

taxicab and employer of such driver

must respond in damages to a pasthe service of the master, and the same

senger for the unwarranted assault measure of responsibility attaches to

of such driver committed in the course the master for the acts of the servant

of such transportation. as though the service was performed [See 4 R. C. L. 1169; 1 R. C. L. Supp. during the regular hours of service.

1286; 4 R. C. L. Supp. 308.] Headnotes by the COURT.

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ERROR to the Court of Appeals for Crawford County to review a judgment affirming a judgment of the Court of Common Pleas in favor of plaintiff in an action brought to recover damages for an assault committed by defendants' servant, alleged to have been negligently and carelessly employed by them as driver. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Gallinger & McCarron, for Thresher Co. 97 Minn. 305, 5 L.R.A. plaintiffs in error:

(N.S.) 598, 107 N. W. 133; Rahmel v. Defendants were not liable to re- Lehndorff, 142 Cal. 681, 65 L.R.A. 88, spond in damages for the criminal act 100 Am. St. Rep. 154, 76 Pac. 659, 16 of their employee, the only negligence Am. Neg. Rep. 7; Hardeman v. Wilcharged against them being that of liams, 150 Ala. 415, 10 L.R.A.(N.S.) employers.

653, 43 So. 726; 26 Cyc. 1526; Crelly Louisville & N. R. Co. v. Wolfe, 80 v. Missouri & K. Teleph. Co. 84 Kan. Ky. 84; Mechem, Agency, $ 740; 19, 33 L.R.A.(N.S.) 328, 113 Pac. 386, Stranahan Bros. Catering Co. v. Coit, 3 N. C. C. A. 854; Collette v. Rebori, 55 Ohio St. 410, 4 L.R.A. (N.S.) 506, 107 Mo. App. 711, 82 S. W. 552; Hud45 N. E. 634; Morier v. St. Paul, M. & son v. Missouri, K. & T. R. Co. 16 Kan. M. R. Co. 31 Minn. 351, 47 Am. Rep. 470; Mirick v. Suchy, 74 Kan. 717, 87 793, 17 N. W. 952; Slater v. Advance Pac. 1141, 11 Ann. Cas. 366; Johnson

v. Alabama Fuel & I. Co. 166 Ala. 534, jury were further definitely in52 So. 312.

structed that, if the act of interMessrs. Chester A. Meck and Ben

course was with plaintiff's consent, jamin Meck for defendant in error. the verdict should be in favor of the

Marshall, Ch. J., delivered the defendants. opinion of the court:

In addition to the allegations of The plaintiff in this action, a the petition that plaintiff was a passenger in a public taxicab, sued passenger in a public taxicab drivto recover damages from Korner & en by an employee of the firm ownSon, as owners and operators of a ing and operating the taxicab, the line of public taxicabs then being petition contained the further alleoperated for hire in the city of gation that the driver was a person Bucyrus, Ohio. It was alleged in of low morals and a depraved charthe petition and admitted in the an- acter, which fact his employers swer that the defendants did, at the knew, or by the exercise of orditime complained of, own and oper- nary care should have known. ate a line of taxicabs for hire. It Much of the charge of the court was claimed that plaintiff, at about is taken up with that feature of the the hour of 12 o'clock at night, went case, which need not receive serious to the place of business of defend- attention at our hands, because the ants in Bucyrus, and applied for a conclusions we have reached in this taxicab to take her to her home in controversy make it unnecessary to a remote part of the city, and found prove that the owner and operator Edward Driscoll, an employee of of a public taxicab had notice or defendants, who started to take her knowledge of the depraved characto her home in a taxi, but who, in- ter of the driver. The jury restead of going directly to her home, turned a verdict in favor of the drove the machine into the country, plaintiff, and this verdict must have where he assaulted and ravished been based upon a finding that her.

rape, as defined by the court, had At the trial the defendants en- actually been committed. deavored to prove that Driscoll was

While it was not seriously quesnot on duty at the time; that by tioned that the defendants were the terms of his employment his du- common carriers of passengers, inties ceased at 6:30 in the evening. asmuch as there has never been an It was admitted, however, that authoritative declaration by this Driscoll used a machine belonging court upon this point, it will be to the defendants, and on his return proper to briefly state that all the to the garage paid into the hands authorities, without exception, have of one of the defendants the usual declared that public taxicabs, operfee for such taxi service.

ated for hire, and which are offered The testimony of plaintiff, strong- promiscuously to ly supported by the testimony of the public for the Carriers-taxiher mother and other attendant cir- service of transcumstances, if believed, made portation of passengers, are comclear case of rape.

Driscoll testi- mon carriers. This is true, without fied at the trial, and while admit- any regard to the limits of the seryting having driven the girl into the ice. Huddy, Auto. 5th ed. p. 45; country before taking her home, Berry, Auto. 3d ed. $ 1502. and admitting the act of sexual in- It was admitted in the answer tercourse, denied that it was against that they "were the owners and opher will.

erators of a certain line of taxicabs The court clearly instructed the for hire in the city of Bucyrus, jury that there could be no recovery Ohio," and in their testimony that unless it was found that there was they held themselves out as willing unlawful carnal knowledge by force to haul people in taxicabs for hire. and against plaintiff's will. The The court further instructed the

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(108 Ohio St. 484, 141 N. E. 267.) jury that, in order for plaintiff to injury and damage are chargeable recover, they must find that Dris- to her own acts or negligence. The coll was at the time in the employ act of the driver was unprovoked of the defendants and performing and was committed while discharghis usual duties as a taxicab driver. ing the duties of his employment, It was therefore claimed by defend- and while using the facilities and ants' counsel that, inasmuch as the equipment of his employer, and for driver's duties usually ended at which the employer received the 6:30 in the evening, the act was not compensation usually paid for such committed by him while perform- service. The facts, ing his usual duties as a driver therefore, make the Master and servInasmuch as Driscoll was a regular strongest possible for acts after

working hours. employee of the defendants, and case, and the inthis service was rendered by him jury and damages were of a most while using one of the conveyances grievous character. This case does of the defendant, for which the not involve any new principle of usual fee was paid directly into the law, and it is only novel in that it is hands of one of the defendants, it sought to apply the same principles would be ridiculously technical to to motor traffic which are commonhold that the service was thereby ly applied to other kinds of public rendered otherwise than in the per transportation. formance of his usual duties.

Among the reported cases are Having found that the relation found a very large number similar of carrier and passenger exists, it in kind to the instant case, and difonly remains to determine and de- fering only in the character of the clare the duty owing by a com- assault and the extent of damage mon carrier to protect passengers perpetrated. Among the early against insults and assaults by the cases can be found a few of a concarrier's employees and servants

servants trary tenor, but the overwhelming during the course of the transporta- weight of authority, even among tion.

the earlier cases, and an unbroken It is claimed by counsel for the unanimity among the later cases, defendants that the carrier can only charge the carrier with liability for be held responsible for negligent unwarrantable assaults upon pasand careless driving, and that the sengers by the servants of the carcarrier is not responsible if it has rier. The carrier's obligation is to exercised ordinary care in select- carry the passen

-assault by ing drivers who are competent and ger safely and driver-liaskilful in operating a taxi. This properly and to court has recently declared in the treat him respectfully, and if the case of Elliott v. Harding, 107 Ohio performance of this duty is intrust

A.L.R. -, 140 N. E. 338, ed to an agent or servant the carthat the owner of any motor vehicle rier is held to a strict responsibility may be held responsible for dam- for the assaults and insults of such ages caused by an incompetent

an incompetent servants. We will notice only a driver, known to be such by the few cases which are of a very simowner. The instant case, however, ilar nature. is based upon a very different prin- In the case of Dwinelle v. New ciple. The issues in this case are York C. & H. R. R. Co. 120 N. Y. not confused or complicated by any 117, 125, 8 L.R.A. 224, 17 Am. St. such considerations as a trouble. Rep. 611, 24 N. E. 322, a passenger

' some or intoxicated passenger, or was assaulted by the porter of a one who refuses to pay fare, or ail sleeping car, the porter not being altercation between a passenger employed by the railroad company, and the servants of the carrier, but the Pullman car was a part of neither is there any claim that the the train in which the passenger girl was the aggressor, or that her was being transported. The court


St. 501,

in that case used the following lan- from injury, violence, insult, and ill guage: A common carrier is

treatment at the hands of its embound, so far as practicable, to pro- ployees during the course of transtect his passengers, while being portation.

If a person emconveyed, from violence committed ployed by a railroad company as a by strangers and copassengers, and baggage-master upon one of its he undertakes absolutely to protect trains assaults a female passenger them against the misconduct of its thereon, with intent to commit a own servants engaged in executing rape upon her, the company is anthe contract

from an as- swerable in damages to her for the sault committed upon a pasenger by act." a servant intrusted with the execu- In all of the foregoing cases it is tion of a contract of a common car- very clear that the employees went rier."

far beyond the regular duties inIn Garvik v. Burlington, C. R. & cumbent upon them as servants of N. R. Co. 131 Iowa, 415, 117 Am. the carrier, but the carriers were St. Rep. 432, 108 N. W. 327, a nevertheless held liable to respond brakeman followed a girl into the in damages for such acts. toilet of a day coach in the early The text-writers have laboriously morning, and criminally assaulted reviewed a large number of auher. The following is quoted from thorities and have deduced there the syllabus: “A railway company

from rules in accord with the prinis liable in damages for a rape com- ciples herein stated. 3 Thomp. mitted on one of its passengers by Neg. $$ 3184 and 3185; 2 Shearm. an employee.”

& Redf. Neg. 6th ed. $ 513. In Campbell V. Pullman Palace So far as rail transportation is Car Co. (C. C.) 42 Fed. 484, the concerned, the rule may be regardPullman Company was held respon- ed as firmly established that carsible for an indecent assault made riers insure passengers against unupon a female passenger by the warrantable assaults and insults at porter of the car. This case was

the hands of the carrier's agents affirmed without official report by and servants while in the course of the Supreme Court of the United the journey under a contract of carStates.

riage. In New Orleans, J. & G. N. R. Co. Upon what principle should a dif

Allbritton, 38 Miss. 242, 75 Am. ferent rule apply to motor vehicles? Dec. 98, it was held: "A railroad Motor vehicles to

Carrier-liabilcompany impliedly warrants that day occupy a larger ity of operator

of taxicab. its engineers, conductors, and other place in the social, employees engaged in running its industrial, and economic fabric trains are possessed of due skill, than any other factor of twentieth and are competent and faithful; century civilization. The automoand it is liable under all circum- bile is contributing very largely to stances for any injury occasioned the pleasure of the people, while at by the misconduct, rashness, or the same time the reckless use of negligence of such person; and same is taking a tremendous toll of where an injury is caused by the life and limb. More and more each gross negligence or wanton and wil- year it is increasing as a factor ful misconduct of its employees, it in commercial transportation of is liable for exemplary damages.” freight and passengers, and in

In the case of Savannah, F. & W. many communities is driving elecR. Co. v. Quo, 103 Ga. 125, 40 tric traction from the field. More L.R.A. 483, 68 Am. St. Rep. 85, 29 important and more dangerous is S. E. 607, 3 Am. Neg. Rep. 777, the the fact that motor vehicles are following proposition of law is stat- used as the instrumentalities of ed in the syllabus: “It is a car- crime, especially the crimes of robrier's duty to protect passengers bery and rape, and as a means of

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