In the argument filed in support of this motion, counsel for appellant insist that we ignored what they consider the greatest objection to the charge, to wit, "that it was error, as applied to the facts of this case, to give such charge at all, without so qualifying it as to inform the jury that the supposed duty to exercise care could arise only on appellant's discovery of facts threatening danger of this character (negligence and misconduct of other passengers) to appellee, and calling on it for interference;" citing the case of Ellinger v. Railway, 153 Pennsylvania State, 215; 58 American and English Railway Cases; 25 Atlantic Reporter, 1132, as most in point on the facts.
According to the testimony of appellee, a couple of disorderly passengers, who had been riding in the same coach with her, were *Page 582 standing on the platform of the car, "still cursing and jowering," when she passed out of the coach near them and started down the steps provided for the exit of passengers. That a disorderly conflict between them, either in anger or sport, ensued, resulting in the injuries complained of, is a reasonable, if not the only proper, deduction from her evidence; and that, too, notwithstanding her statement on cross-examination that she did not know who did it.
It thus appears that these disorderly passengers were in conspicuous proximity to appellee as she was about to descend from the car to the platform, and that this obvious situation could not reasonably have escaped the notice of appellant's servant, had he been, according to invariable custom, at the usual place to see passengers safely landed. Can appellant escape the consequence of a knowledge of such situation by the absence of its servant from his post of duty?
We think not. It was as much the duty of appellant, by the exercise of a high degree of care, to safely land as it was to safely carry appellee. It had undertaken for hire to do both. There is nothing to indicate that a high degree of care would have been consistent with the absence of the carrier's servant from the usual place of exit while passengers were disembarking. Even the common hackman who plies his calling between the depot and hotel stands at the door of his coach till the passengers are all out.
To have so qualified the charge, therefore, as to make appellant's duty to exercise care depend upon an actual discovery of threatened danger, would have been misleading when applied to the facts of the case as detailed by appellee. According to appellant's testimony, there was no case to submit.
In the Pennsylvania case cited, the court held that the railroad was not bound to anticipate and provide against the haste and want of civility of a passenger boarding the train, in his effort to reach a seat in the car, whereby another passenger leaving the train was suddenly and unexpectedly jostled and injured — a materially different case, we think, from the one under consideration. Even in that case the principle is recognized, citing Railway v. Pillow, 76 Pennsylvania State, 510, that protection against violence from drunken and disorderly persons upon its trains is the duty of the carrier.
The motion will be overruled.
Overruled. *Page 583