The times. [volume] (Richmond, Va.) 1890-1903, 1896-04-10
Interesting Case Involving Liability Of a
Railroad for MuTder Committed Thereon,
HYSlESI9U} COIHEIL CASE RECALLED.
so Liability Imposed on the Carrier.
Floating Insurance Policy-oyster'
Law-I limitations Account stated.
Compensation of Jailers.

and Ohio Railway Company and Pull
man Palace Car Company. From the
Circuit Court of Richmond city. AZ
nrmed. Opinion by Keith. President.
on the morning Of August LIST, 1871
Mr.. d. r. Connell. Of Portsmouth, o.,
VINO was a passenger on an casto0und
Chesapeake and Cli0 train. passing be-
tween WamcsborO and Basic city, was
shot by an unknown party ana so severe
Is wounded that he died August 9Th, at
Wrishrs Hotel. i'm Charlottcsyile whith-
err be was.Carried.
Mr.. Conneu was asleep I'm his berth
upon a Pullman car, when some person
onsered the cuacl This party first
went 10 the berth occupied by n young
lady and drew back the curtains. The
occupant called for her mother, who was
in another berth. WhtreupOn the intrld-
or apoiieized and went over 10 the berth
of MIR. Connell, who resented the intrI-
sion by q kick. The intruder thereupOn
drew IFS pistol and shot Alr COnucl.
the ball entering his abdomen. passing
through his body, and lodging in the
skin of his back. The murderer escaped
and was never apprehendcd.
The action was trespass on the case.
the declaration settling out tho facts, ana
alleging negligence on the part OF the
DESCENDANT companies. To this declara-
ti0u. and 10 each of tile five counts. which
present substantially the same question
of "a law. a demurrer was fled and sus-
tained hut with leave 20 amend. De
murrer also 10 the amended declaration
and each count. This demurrer also sus-
tained, and writ of error granted.
Held. I. The first ground of error, the
sustaining by the court below Of the
a .H.a. HNflH rad ffs4fn
cannot be uuheld Where "a demurrer Is
sustained. with leave TO amend, IL plain
tiffs exercise the privilege. they cannot
afterwards be heard 10 object 10 that
ruling. Graft. 43l So Va. 2ss.
The demurrer 10 the amended declara-
ton presents 4 question OF novelty ana
interests that has seldom arisen ana
which certainly has never been passed
upon by this court.
Held. .. Passenger railways. while not
insurers (as carriers of goods arel, against [
all injuries not occurring by the acI OF
GCd or "a public enemy. are yet bound to
carry safely all passengers "hom '.'0S
caive as Messengers, I'm so far as human
care and foresight can provide; that lS'
tbev are bound TO use the utmost care
and diligence OF very cautious persons
and will De held liable for the slightest
,eglioance which human care. SKILL ana
foresight could have guarded against i
Graft. G97. A passenger sustaining IN
it,~y nv the negligence OF the c~iliel b
servants or agents, or because OF any "1
feet of machinery coaches roau-De'' vi
other fundamentally cohilecteu WI.
nassengor transportation IS pItS'',llu ~.
I'm tbe contrary is shown. TO have been
injured through the carrier n's"s'''e,
ond upon proof of injury. mas pili'"
80, lss. to recover damages therefor.
IN, t,i,ir,r here. however. is not the
~os,,It of defect i'm any OF these msliu
,,o,tetitiss The negligence aVerred IS
.r. failure TO take such precautions "'
,,o,lm nave projected the PASSENGER
.stc.n ar nfprt. I'm Pullman car uelhS
- ~ the regular train. from an ass
e,uI+ Inv an unknown person, VINO was
nermitted 10 enter the pullman WIN
intent To commit murder or ROBBERY anu
who did XIII Conneu.
II is not averrod that delennehls OF
thelr employees knew Of any danger 10
him or that there was any circumstances
10 arouse suspicion of danger
Cases cited for plaintiff are suits Tor
los of pronerty on sleeping cars by rob
borv or theft. and they establish n very
hieh degree Of duty from Sleeping car
COMPANIES 10 their patrons. In Carpen-
ter VS.. New York etc, railroad company
1ef y. Y. court says: "a traveller who
pavs for a berth is invited and has right
10 sleep. and both parties 10 tho contract
known that he is 10 become powerless 10
defend his property from thieves or his
Ders0n from insult and the company
g. bound 10 use a degree o. care commen-
surate with the danger 10 which the pas
songors are exposed. They arc
bound 10 have AN empoye charged with
the duty of carefully ana continually
watching the interior Of the car. whilg
hcrths are occupied by sleeping passen-
gers"
There is a strong array Of similar cases
an of them dealing with liability for
property only
The contention of the defendcnt that no
responsibility for a wrong attaches where
the independent act Of a third person in-
tervoncs between defendants negligence
AMI Oh injury sustained which affects and
is the Immediate cause Of The injury. is
sustained by "A convincing weight Of au-
thOrity, but does not apply IN this
case because the very nocfl-
gence alleged consists I'm per-
mitting the intrusion into the car OF the
third person whose Independent act was
the immediate cause OF tho injury what
then upon the principle. should be deem
cd the measure Of duty which defendants
owed I'm this case and what degree of
negligence will render them responsible
for the injury sustained.
Held. 3. The negligence complained Of
must stand as the prominent cause of the
injury sustained that is, 10 must bs the
direct anl efficient cause OF n.
Justice Miller said i'm los l.. s 2la. "to
warrant a finding that negligence or an
act not amounting 10 wanton wrong IS
the prOximate cause Of an injury
it must appear that the injury was the
natural and probable consequence Of the
negligence or wrongful act. and that In
ought 10 have been foreseen I'm the light
Of the attending circumstances. This
is the principle upon which this case
should be decided and goes
far towards reconciling the seem
ing conflict between the au
thoriues cited by the counsel on either
side.
Robbery and larceny are common
crimes: carriers are paid TO preserve
watch and ward over their sleeping
guests. and they are rightfully held 10
a faithful discharge of their obligations
Experience teaches that property cx-
posed 90 theft is apt 20 be stolen. bnf
happily. murder IS OF rare occurrence
Therefore when sleeping-car cOmpanies
receive a passenger IL may be assumed
that they will be on the look out for
such crimes as are likely TO be com.
mitted under temptation and when on
pOrtunlty offers and that they viii pro-
tect their guests against them. but not
that they will expect nor be required
TO take procaution against a crime so
cruel and unusual as murder. There is
no casual connection between the negli-
gence alleged and the injury sustained.
f..f. 40 . l.. -. a
ing ana Christian State a caf IS invaded
iu the night-tim by an assassin ana an