The Portland daily press., 1874-05-11
Important Reference Decision.

FERNALD vs.. THE MAINE CENTRAL RAILROAD.
The following is the award in the case Of Ebenezer
N. Fernald against the M inc Central Railroad Co.,
which referred to Hon. c. W. Walton, Hon.
Charles Danforth and Hon. W. W. Virgin of the Su-
preme Court. 1t is decision that not only
all railroad and steamboat companies engaged in the
transportation of passengers but also the travelling
public.
The facts Of the case sufficiently appear in the
award.
We, the referees, having met the parties and given
them full bearing, report follows:
In judgment there is but little if any real
ct Of evidence with respect to the facts 1t appears
that the 10th of August 1873, Irish excursion
party. some six or seven hundred in number, went
from Lewiston to Old Orchard Beach. The Maine
Central Railroad Company engaged to convey the
party to and from the Boston & Mime Railroad
transfer station, which is little distance out of
Portland.
The Rev. Ebenezer N. Ferrald clergyman, then
residing in Auburn, was passenger on the evening
train from Portland to Auburn; and when he pur-
chased his ticket, and when he took his seat in the
cars, had no knowledge that they were to be Joined
BY the excursion party On arrival OF the train at
and Sc, en- hundred in number, some Of whom were
evidently intoxicated and disordery, using prcfane,
rush board, and into the forward cars, lin one of
which Mr. Fernald was seated, in greater numbers
than could be seated. A sufficient number OF cars
had been provided to allow the whole party to be
seated and the excursionsts were informed as they
rushed toward the forward cars, that there were
plenty of unoccupied seats in the rear cars but no
efficient means were used to distribute the passen-
gers and no effort was made to separate the NOISY,
ran sss
its route. The in which Mr.. Fernald was seated
crowded that in some of the seats there were
three and four passengers. including women and
children, and many were standing in the isle The
noise and tumut continued, and those who were un-
der the influence of Intoxicating liquor continued to
profape, obscene and threatening language. The
train had passed two stations and still no effort was
made to restore ORDER or to remove the disordery,
this time Mr.. Fernald had left his seat and
standing at the end of seat occupied by two ladies'
one of whom was very much frightened at the noise
curson party. They had taken their seats in one of
the regular passenger cars in Portland at the sam
time Mr.. Fernald did; and it was at their request
that he left his seat and went and stood by them.
While standing there of the drunken passengers
NJ aq in the s Mr. ead BY
pacifying words endeavored to check his obscenity.
But the attempt was not successful In fact it is not
certain that the remark was heard by the person to
whom it was addressed. Thefeupon the woman to
whom the insulting and obscene language had been
addressed and who appears to have been one OF tne
the one who addressed her in the face. The one
struck of those who visibly Intoxicated
and Of tn ose who had been most dsorderly pro-
fame, obscene, and threatening in his language and
conduct. On being slapped in the face by the wo-
asked him if he struck him MI. Fernaid replied no.
but be fore the words fairly out of his mouth the
man struck Mr.. Fernald violent blow in the face
the party (aso disorderly and visibly intoxicated
struck Mr. Fernald severe blow on the tide of his
Fern n face U' was badly bruised, and the blood
flowed profusely.
1t is for this injury that Mr.. Fernald claims to
cover damages of tho railroad company; and the
question is whether his claim is sustained. We think
1t is.
We understand it to be well settled law that the
carrier of passengers is bound, not only to
provide safe OF conveyance but also to exer-
else constant vigilance to protect his passengers from
injury from whatever source arising. He is not an
insurer of his passengers safety If the passenger IS
injured without the fault negligence ofthe carrier,
or without the fault negligence of his servants the
carrier is not responsible. But in judgment to
allow a crowd of excursioplsts, some of whom
identity intoxicated and quarrelsome, to rush into
the regular passenger in greater numbers than
can be seated, and then proceed with the train with
out first restoring order. making any effort to
pei such disorderly persons from the train, or at
least from the occupied by the regular passen-
gers, is fault
1t is in our Judgment legal negligence and makes
the carrier responsible for the consequences. We do
not hold that the carrier is responsible for an assault
by one passenger upon another when there is nothing
in the character or condition of the one making the
assault to warn the carrier his servants that he
is unfit to be associated with orderly and well behav-
ed passengers. But hen, as in this case, persons
yisbly under the influence of intoxicating liquor and
evidently in quarresome frame of mind, are ad-
mitted into the ordinary passenger cars and allowed
to remain there while the train proceeds, and eff
fort is made to exclude them we hold that the rail-
road company is responsible if an orderly and well
behaved passenger is assaulted and injured by one of
them. Persons SO drunk to be noisy and ouarrel-
some should be excluded from the ordinary passen-
ger cars and the law will protect railroad commands
and their servants in doing Not to do SO is such
negligence as makes the railroad company responsible
for the consequences
We therefore award and determine, and this is our
final award and determination in the premises, that
the said Ebenezer N. Fernald recover against the
said Maine Central Railroad Company the sum O
siA hundred dollars as damages, and costs of refer
ence.
All of which is respectfully submitted this 9th da!
ofApril, 1874.
(SignedD C. W. WALTON,
WIN. WRIT VIRGIN,)