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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.

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

the early against insults and assaults by the cases can be found a few of a concarrier's employees and 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-lia

and skilful in operating a taxi. This properly

to

bility. court has recently declared in the treat him respectfully, and if the case of Elliott v. Harding, 107 Ohio performance of this duty is intrustSt. 501, - A.L.R. - 140 N. E. 338,

-, 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 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 an sleeping car, the porter not being altercation between 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

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in that case used the following lan- from injury, violence, insult, and ill guage: 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 therethe 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 difv. Allbritton, 38 Miss. 242, 75 Am. ferent rule apply to motor vehicles? Dec. 98, it was held: “A railroad Motor vehicles to

Carrien-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 (108 Ohio St. 484, 141 N, D. 267.) escape and thwarting the adminis- if the owners of such vehicles emtration of justice. All these facts

All these facts ployed in public transportation of are known and recognized by the passengers are held to a strict acpublic, and the courts would be countability for unwarrantable asgrossly remiss in the discharge of saults and insults at the hands of their duties if they failed to recog- employees in charge of such pasnize them and guard against them sengers. by declaring rules and principles Therefore, upon principle, as well calculated to overcome the well- as analogous authority, it is the known evil tendencies.

judgment of this court that the In many of our larger cities, judgments of the lower

lower courts where public officials are notorious- should be affirmed. ly failing and refusing to enforce

Wanamaker, Robinson, Jones, certain laws because of their an

Matthias, Day, and Allen, JJ., contipathy to such laws, thereby caus

cur. ing a general increase of crime and permitting lawlessness to progress

NOTE. beyond control, the public taxi has been utilized as a means of safety to The annotation in 4 A.L.R. 1499, those who are compelled to traverse which is supplemented by annotation the streets of such localities after following ANDERSON V. YELLOW CAB nightfall. This last resort of safe- Co. post, 1202, deals with the duty and ty will have been lost, if the public liability of carriers of passengers for cannot have the assurance that hire by automobile; the duty and liadrivers of public taxicabs are men bility of proprietors of taxicabs being of integrity and character.

specifically treated in subd. II. of This assurance can only prevail those annotations.

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upon fixed

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.” public utility commission, or move be2. A

“taxicab" is conveyance tween fixed termini or similar to a hackney coach, but pro- routes, or have fixed charges. pelled by electric or steam power, and held for public hire at designated

common

taxicab as. places subject to municipal control. 4. One operating a taxicab to conCarrier — public — necessity of being

vey passengers about a city, which is public utility,

subject to the call of the public, and 3. To constitute a public conveyance

who charges a uniform mileage rate a common carrier it is not necessary for services, is a common carrier. that it come within the definition of [See 1 R. C. L. Supp. 1163; 4 R. C. L. a public utility so as to be subjected Supp. 275. See also note in 4 A.L.R. to the rules and regulations of the 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.:

(2) that the driver of the cab was This is an appeal from the judg- guilty of negligence in operating it ment of the circuit court of Mil- in such manner; and (3) that such waukee county in favor of the negligence was the proximate cause plaintiff, for the sum of $555.04 of the injury. damages and costs.

After verdict,

verdict, the defendant The defendant is the owner of moved first for judgment in its fatwenty-eight taxicabs used for con- vor, notwithstanding the verdict; veying passengers in the city of Mil- and, second, for the court to change waukee, and it has a general office the answers to questions 2, and 3 in such city, from which taxicabs of the special verdict from "Yes" are despatched for the purpose of to "No," and for judgment upon conveying passengers from one such verdict as so changed, and for place to another; such taxicabs be- a new trial for alleged errors coning operated pursuant to a regular tained in the instructions. Defendrate applied to the number of miles ant's motions were denied by the traveled, registered upon a device court, and judgment was thereupon known as a taximeter.

ordered and entered in plaintiff's The plaintiff, a married woman

favor as above stated. residing on Fifty-first street, be

Messrs. Cannon, Bancroft, & Waltween Vliet and Galena streets, in dron, for appellant: Milwaukee, on the 14th day of June,

The passenger necessarily assumes 1920, phoned to the general office of all incidental risks outside of the negthe defendant for a taxicab to con- ligence of the carrier. There can be vey her from the corner of Grand no recovery in the absence of negliavenue and West Water street in gence, and the burden of proving it is the city of Milwaukee, to her home.

upon the plaintiff. Pursuant to an order of the defend

6 Cyc. pp. 590, 629; Wanzer v. Chip

pewa Valley Electric R. Co. 108 Wis. ant, one of its taxicabs stationed at

319, 84 N. W. 423; Davis v. Chicago, the Chicago & Northwestern depot M. & St. P. R. Co. 93 Wis. 470, 33 was despatched to where the plain- L.R.A. 654, 57 Am. St. Rep. 935, 67 tiff awaited the cab, and the driver, N. W. 16, 1132, 10 Am. Neg. Cas. 507; after receiving directions as to the Block v. Milwaukee Street R. Co. 89 place of destination, proceeded on Wis. 378, 27 L.R.A. 365, 46 Am. St. the journey, and when he arrived Rep. 849, 61 N. W. 1101; McGowan v. at or about the intersection of Vliet

Chicago & N. W. R. Co. 91 Wis. 147, and Fifty-first streets, the plaintiff Transp. Co. 60 Wis. 141, 50 Am. Rep.

64 N. W. 891; Atkinson v. Goodrich was twice violently thrown from

352, 18 N. W. 764. her seat to the ceiling of the auto- Weighing the testimony of plaintiff mobile, and sustained severe inju- concerning the manner in which the ries. It appears from plaintiff's accident occurred, that "he must have evidence that at the place where driven into some holes," as contrasted the injuries were sustained the road to the positive testimony of an entirely was in a defective condition, and

disinterested witness as to the conthat the cab was driven at an ex

dition of the street at the time and cessive rate of speed.

place where plaintiff said the acciThe case was submitted to the

dent occurred, gives a clear prepon

derance of the credible evidence in jury upon a special verdict, in

favor of the defendant. which the jury found: (1) That

Ralph v. Chicago & N. W. R. Co. 32 the cab was operated in such a man

Wis. 177, 14 Am. Rep. 725; Hildman ner as to cause the plaintiff to be

v. Phillips, 106 Wis. 611, 82 N. W. 566, violently thrown from the seat; 7 Am. Neg. Rep. 705; Coel v. Green (179 Wis. 300, 191 N. W. 748.) Bay Traction Co. 147 Wis. 229, 133 N. Wis. 594, 150 N. W. 424; Hommel v. W. 23; Draper v. Baker, 61 Wis. 450, Badger State Invest. Co. 166 Wis. 235, 50 Am. Rep. 143, 21 N. W. 527; Jones, 165 N. W. 20; Ryan v. State, 168 Wis. Ev. § 898.

14, 168 N. W. 566; Bechmann v. SalThe defendant company acted in the zer, 168 Wis. 277, 169 N. W. 279. same capacity as an auto delivery, and

Doerfler, J., delivered the opinion the rule applied to the keeper of a

of the court: livery is not the rule applied to a common carrier.

The jury, among other things, McGregor v. Gill, 114 Tenn. 521, 108 was instructed as to the degree of Am. St. Rep. 919, 86 S. W. 318; Ter- care required by the defendant in minal Taxicab Co. v. Kutz, 241 U. S. the operation of its cab at the time 252, 60 L. ed. 984, P.U.R.1916D, 972, and place in question, as follows: 36 Sup. Ct. Rep. 583, Ann. Cas. 1916D, “The duty which the defendant, as 765.

a common carrier, owes to a passenMessrs. William A. Schroeder and

ger, requires the defendant's emHorace B. Walmsley, for respondent: There is sufficient evidence of neg

ployees, for the safety of its pasligence.

sengers, in the operation of its Peschel v. Klug, 170 Wis. 519, 175

cars, to exercise the highest degree N. W. 805.

of care reasonably to be expected Neither the trial court nor this from human vigilance and forecourt can change a jury verdict on sight in view of the mode and characcount of mere preponderance of evi- acter of the conveyance adopted dence.

and consistent with the practical Bates v. Chicago, M. & St. P. R. Co.

prosecution of its business." 140 Wis. 242, 133 Am. St. Rep. 1069,

To this instruction defendant 122 N. W. 745; Nash v. New York C. & H. R. R. Co. 125 N. Y. 715, 26 N. E.

duly excepted; it being contended 267.

that the degree of care required by The jury are bound to apply their

the driver of the cab is not that apcommon general knowledge to the plicable to a common carrier, and facts.

that the defendant in the instant Barker v. Western U. Teleg. Co. 134 case was not a common carrier, and Wis. 152, 14 L.R.A.(N.S.) 533, 126 Am. that it was merely liable for injuSt. Rep. 1017, 114 N. W. 439; Murphy

ries sustained as a result of the failv. Fond du Lac, 23 Wis. 367, 99 Am.

ure to exercise ordinary care. In Dec. 181. The court cannot set aside any find

other words, defendant contended ing of a special verdict which has any

that the degree of care required of evidence to support it.

its driver was that applicable to one Dahl v. Milwaukee City R. Co. 65 hiring a private conveyance for a Wis. 371, 27 N. W. 185; Hanson v. specific purpose, from a garage or Chippewa Valley & N. R. Co. 150

a livery stable. Wis. 104, 135 N. W. 488; Smith v. Reed, The instruction given by the trial 141 Wis. 483, 124 N. W. 489; Maxon v.

court is substantially in conformity Gates, 136 Wis. 270, 116 N. W. 758; Pierson v. Citizens' Teleph, & Teleg.

with what has been laid down by Co. 135 Wis. 73, 115 N. W. 336; Me

the rule adopted in Ferguson v. nominee River Sash & Door Co. v. Truax, 132 Wis. 478, 14 L.R.A. Milwaukee & N. R. Co. 91 Wis. 447, (N.S.) 350, 110 N. W. 395, 112 N. 65 N. W. 176.

W. 513, 13 Ann. Cas. 1092, and The instruction given to the jury

Oberndorfer v. Pabst, 100 Wis. 505, to the effect that the defendant was

76 N. W. 338, and such rule is the a common carrier and owed to the plaintiff the care and duty which go

rule in Wisconsin as applicable to with that relation was not error. the degree of care required of com

Braun v. Minneapolis, St. P. & S. mon carriers. The Ferguson Case Ste. M. R. Co. 170 Wis. 10, 172 N. W.

is one involving the liability of a 743; Rump v. Bresnan, 160 Wis. 179, 151 N. W. 251; E. L. Essley Machinery

proprietor of a passenger elevator Co. v. First Trust Co. 160 Wis. 300, 151 to a passenger, and in that case the N. W. 814; Falkner v. Schultz, 160 following statement from 1 Hutch

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