#### BEATRICE SMITH v. CAMEL CITY CAB COMPANY.

(Filed 5 June, 1947.)

1. Carriers § 1—

Tlie operator of taxicabs for bire under franchise or license is under duty of a common carrier in regard to the safety of passengers in transit in so far as this rule of liability can be applied to this mode of transportation.

3.Carriers § 31a (3) —

A common carrier is under duty to protect its passengers from assault by intruders when by the exercise of due care the acts of violence might have been foreseen or anticipated and the carrier could have avoided injury to the passenger by the exercise of proper care, and the carrier is liable in damages proximately resulting from negligent breach of duty in this respect.

3. Same—

While the driver of a taxicab is not under duty to interfere in a fight on the sidewalk between third parties and one who is desirous of becoming a passenger but who has not entered the vehicle, after such person has been accepted as a passenger and entered the conveyance, the duty of a common carrier in regard to the safety of its passengers in transit attaches, and it may be held liable for personal injuries or loss of packages accepted with the passenger for transportation, proximately resulting from negligent breach of this duty.

4. Same—

Evidence tending to show that a person who had called a cab was assaulted as she left her place of business to enter the cab, that she finally managed to get into the cab and that the driver drove half a block with passenger’s assailants surrounding, that the driver then stopped the cab and left the scene, and that the passenger received serious injury in the fight and lost her goods she had taken with her in the cab, *is held*sufficient to overrule defendant cab company’s motion to nonsuit.

5. Negligence § 16—

In this action by a passenger in a cab to recover for injuries resulting from an assault by intruders, the complaint *is held,*not to establish contributory negligence as a matter of law, and defendant cab company’s demurrer *ore tenus*was properly overruled.

Appeal by defendant from *Clement, J.,*at February Term, 1947, of Eobstth.

No error.

This was an action for damages for personal injuries received and property lost while plaintiff was a passenger in one of defendant’s taxicabs. It was alleged that defendant’s driver negligently failed to protect plaintiff from an assault being made upon her.

Issues were submitted to the jury and answered in favor of plaintiff, and from judgment on the verdict, tbe defendant appealed.

*573
      *William H. Boyer and H. Bryce Parlcer for plaintiff.*

*W. Avery Jones and Hosea V. Price for defendant.*

Devin, J.

Tbe only assignment of error presented by tbe defendant in tbis Court is tbe denial of its motion for judgment of nonsuit. All other exceptions noted in tbe trial below bave been abandoned.

Tbis raises tbe question of tbe sufficiency of tbe evidence offered, considered in tbe light most favorable for tbe plaintiff, to warrant submission of tbe case to tbe jury. Tbe material facts were these: Tbe plaintiff operates a cafe on North Cherry Street in Winston-Salem. On tbe evening of 31 December, 1944, plaintiff caused a woman by tbe name of Fostena Phillips to be arrested for disorderly conduct. Fostena subsequently secured bail, and with her sister Mavin and some other friends, went to a place near plaintiff’s cafe and waited for her to come out. Plaintiff closed up about 2 :00 a.m. and called one of defendant’s cabs to take her home as she bad frequently done. Tbe defendant’s cab, driven by a regular employee who knew plaintiff and where she lived, came in response and drew up in front of tbe cafe. Plaintiff bad one of her employees put in tbe cab several packages containing shoes, cigarettes, and some currency amounting to about $80. When plaintiff started across tbe sidewalk to tbe cab, Fostena and her friends appeared and attacked plaintiff and a fight ensued. Plaintiff succeeded in getting on tbe front seat of tbe cab, was pulled out, and tbe fight renewed. Plaintiff succeeded in getting back in tbe cab and tbe driver was urged to drive off. Tbis be failed to do, saying, “I am going to see tbis well done.” He did, however, let tbe cab roll down to a dark spot about half a block away, with plaintiff’s assailants still bolding on to tbe cab and trying to fight her. Here tbe driver stopped tbe cab, got out, opened tbe back door and departed. Tbe plaintiff testified “tbe girls” were fighting her, but she could not start tbe car as tbe driver bad taken tbe switch keys. She then managed to get out on tbe other side, and was rescued by a man named Smith who drove up in bis ear at tbis time, her assailants fighting her all tbe way across to Smith’s car. . . . She said, “All during tbe fighting tbe girls bad been bitting me with a stick, a blackjack, one of tbe shoes off one of my feet.” Plaintiff was carried to tbe hospital where three or four stitches were taken to close a gash in her bead. During tbe melee plaintiff’s money and goods were thrown out of tbe cab, scattered and lost.

Conceding that tbe driver of defendant’s cab was under no obligation to protect plaintiff while she was on tbe sidewalk, or to defend her or champion her cause outside of bis cab, still it would seem that tbe plaintiff’s testimony, that after she bad gotten in tbe cab and tbe cab bad proceeded half a block tbe driver stopped tbe cab, with plaintiff’s assailants surrounding, and left tbe scene, would afford some evidence of fail*574ure to exercise due care for tbe protection of one wbom be bad accepted as a passenger in bis cab, and tend to sustain an action for damages for injuries received and property lost proximately resulting therefrom.

It was admitted that the' defendant in this case was engaged in tbe business of operating taxicabs for hire on tbe streets of Winston-Salem, under franchise from tbe city. Hence it would seem that tbe duty uniformly held obligatory upon common carriers, with respect to tbe safety of passengers being transported by them in tbe course of their business, should also be held to be imposed upon those who operate taxicabs on tbe public streets under franchise or license issued in accord with statutory provisions and regulations, in so far as applicable to that type of carriage. *Durfey v. Milligan,*265 Mich., 97; *Shelton Taxi Co. v. Bowling,*244 Ky., 817; *Duplaise v. Yellow Taxicab Co.,*204 Wis., 419; *Yellow Cab Co. v. Carmichael,*33 Ga. App., 364; *Sanchez v. Pacific Auto Stages,*116 Cal. App., 392; 69 A. L. R., 992; 96 A. L. R., 753.

Tbe duty owed by common carriers to passengers being transported by them has been frequently stated by this Court to be to provide for tbe safe conveyance of their passengers “as far as human care and foresight” can go, consistent with practical operation of tbe business. *Perry v. Sykes,*215 N. C., 39, 200 S. E., 923; *Horton v. Coach Co.,*216 N. C., 567, 5 S. E. (2d), 828; *Hollingsworth v. Skelding,*142 N. C., 246, 55 S. E., 212. And in tbe performance of its duty it is obligatory upon tbe carrier to protect a passenger from assault, not only by tbe carrier’s employees, but also by intruders, when by tbe exercise of due care tbe acts of violence might have been foreseen and avoided. *Seawell v. R. R.,*132 N. C., 856, 44 S. E., 610; *Wilson v. Bus Lines,*217 N. C., 586, 9 S. E. (2d), 1. This obligation on tbe part of tbe carrier with respect to tbe safety of passengers continues until tbe journey expressly or impliedly contracted- for is concluded. *White v. Chappell,*219 N. C., 652, 14 S. E. (2d), 843. But before liability may be predicated for tbe injury to tbe passenger, it must have proximately resulted from tbe negligent failure of tbe carrier to perform its duty. *Chancey v. R. R.,*174 N. C., 351, 93 S. E., 834. And tbe carrier must have known of, or bad reasonable grounds to anticipate tbe assault by intruders, with present ability to avoid injury to tbe passenger by tbe exercise of proper care. *Pride v. R. R.,*176 N. C., 594, 97 S. E., 418; *Wilson v. Bus Lines,*217 N. C., 586, 9 S. E. (2d), 1; *Batten v. R. R.,*77 Ala., 91; *Lake Erie & W. R. R. v. Arnold,*26 Ind. App., 190; *Connell v. R. R.,*93 Va., 44.

We do not conceive it to be tbe legal duty of tbe driver of a taxicab to interfere in a fight on tbe street or sidewalk between third parties and one who is desirous of becoming a passenger but who has not entered tbe vehicle, but after tbe person has been accepted as a passenger and has entered tbe conveyance, tbe duty is imposed upon tbe carrier to exercise due care and vigilance to protect tbe passenger in transit from *575violence threatened by third parties when the circumstances are such as to indicate that injury to the passenger might reasonably be anticipated and avoided by the exercise of proper care. *Yellow Cab Co. v. Carmichael,*33 Ga. App., 364, 126 S. E., 269. However, .the carrier is not an insurer of the safety of its passenger, and can only be held liable in damages for negligent breach of its duty, proximately resulting in injury to the passenger, *Chancey v. R. R., supra; Mills v. R. R.,*172 N. C., 266, 90 S. E., 221, or causing loss of packages accepted with the passenger for transportation. *National F. Ins. Co. v. Yellow Cab Co.,*205 Ark., 953.

There was no error in denying defendant’s motion for judgment of nonsuit, and for the same reason defendant’s demurrer *ore tenus*to the complaint as insufficient to state a cause of action was properly overruled. The allegations of the complaint were in- substantial accord with the evidence offered. Contributory negligence was not alleged, nor may the complaint be held to establish contributory negligence as a matter of law. *Ramsey v. Furniture Co.,*209 N. C., 165, 183 S. E., 536.

As there was sufficient evidence to carry the case to the jury, and no other exception is brought forward, the result will not be disturbed.

No error.