(concurring). The point is made in the motion for a rehearing that the language used in the opinion of this court establishes, as a matter of law, the duty on the part of the Pullman Company to maintain a constant watch for the protection of passengers against assault, and that thus the company is made a guarantor of the safety of passengers against assaults of fellow passengers, even if such assaults were unexpected and unforeseen. It is proper, I think, for me to state, under the conditions, that in my opinion that question—that is, whether a constant watch must, as a matter of law, be kept for the protection of Pullman passengers from unexpected assaults—is not in the case.
The complaint was that the plaintiff in error was negligent, in that it failed to use reasonable care in watching over and guarding and protecting the defendant in error from intruders. The evidence was that a watch of a kind was in fact kept, in that the porter was awake and nearby, the conductor, although asleep, was within calling distance, and a flagman, who had been sitting in view of the aisles, had temporarily, and just before the assault, left the ear. The charge to the jury was that it was “the duty of the defendant to exercise all reasonable care, skill, and diligence in' watching over, guarding, and protecting the plaintiff from intruders, * * * and if they failed to exercise such skill and diligence, and thereby and as a proximate result thereof the plaintiff was assaulted, she would be entitled to recover damages.”
So the point decided by the jury was that the watch maintained on the occasion complained of was not of the character or was not as careful and continuous a watch as reasonable care in that regard required. What would constitute reasonable care and be a sufficient watch, under the circumstances, were for the jury to determine. If they had been told, as a matter of law, that a constant watch, as that expression would have been applied to the facts of this case, should have been kept to protect passengers from assault, the province of the jury would, in my opinion, have been invaded.
It is with the view that there was no error in the charge, and that there is evidence to sustain the verdict of the jury, that I concur with the majority of the court in the opinion that the motion should be overruled.