Ephraim v. Safeway Trails, Inc. Plaintiff-Appellee's Brief

    Argued by 
Clarence B. J ones

ImM BtuUB Olmtrt nf
For the Second Circuit 

No. 29064

FLORENCE BLAIZE EPHRAIM,
Plaintiff-Appellee,

against

SAFEW AY TRAILS, INC.,
Defendant-Appellant.

PLAINTIFF-APPELLEE’S BRIEF

L ttbell, L ijbell and J ones,
Charles T. M cK in n e y ,

Attorneys for Plaintiff-Appellee, 
No. 165 Broadway,

New York, New York 10006.

Clarence B. J ones and 
J on athan  W. L ubell ,
, of Counsel.



I N D E X

Preliminary Statement .................................................  1

P oint  I—Amendments to the Interstate Commerce 
Act pursuant to which Congress assumed control 
of the transportation of passengers by motor car­
riers engaged in interstate commerce and the regu­
lation of such transportation do not deprive motor 
carriers thereunder of the power to enter into spe­
cial contracts for the transportation of passengers 
over connecting carriers ...........................................  2

P oint  II— The limitation of liability included in 
tariffs filed by appellant and on back of the ticket 
issued by it to appellee does not preclude appellant

PAGE

from incurring liability to appellee ...................... 4

P oint  III—Appellant is liable for the injuries sus­
tained by appellee while travelling on the line of 
Southern Stages .........................................................  8

A. Where A  Special Contract Arises Between A
Passenger and Initial Carrier, Subsequent 
Connecting Carriers Operate as Agents of 
The Initial Carrier in Carrying Out Its En­
gagement to Transport Passenger to The 
Ticketed Destination .......................................  8

B. The Undisputed Record Facts Below Estab­
lish the Existence of a Special Contract 
Whereby Appellant Undertook to Trans­
port Appellee by Motor Bus Over its Own 
Lines and Those of Connecting Carriers From
New York to Montgomery, Alabama ..........  9

C. Where Special Contract Is Established, Ap­
pellant, As Principal, is Liable for Failure of 
Connecting Carrier to Exercise Required 
Care in Transporting Appellee Pursuant to
said C ontract.....................................................  H



P oint  IV— Contrary to appellant’s contention, the 
Court below did not err in holding that the rule 
laid dowTn in Louisville & Nashville E.E. Co. v. 
Chatters is inapplicable to the circumstances of this 
case ..............................................................................  12

A. None of the Cases Eecited by Appellant in 
“ Point I I I ”  of its Argument Exempt Ap­
pellant From Eesponsibility For the In­
juries and Damages Sustained by Appellee 12

B. Appellant Was the Eecipient of Economic or 
Financial Benefits From Proceeds Derived 
From the Transportation of Appellee Over
the Lines of Connecting C arriers................  17

P oint  V—Appellant is liable for the acts of the police 
officer and for the act of the driver in calling the 
police officer and identifying appellee ................  20

A. Motor Carriers of Passengers Must Exercise 
Extraordinary Care and Diligence for Safety
of Their Passengers .......................................  20

B. That the Injuries Sustained by Appellee Be-
sulted Partially From Acts Committed by an 
Officer of the Law Does Not Absolve Appel­
lant From L iab ility .........................................  22

Conclusion........................................................................ 25

Cases Cited

Battle v. Central Greyhound Lines, Inc. of New York, 
Buffalo, 171 Misc. 517,13 N. Y. S. 2d 357, 358 (Sup.
Ct.) ................................................................................  11

Boynton v. Commonwealth of Virginia, 364 U. S. 454,
460-461 ........................................................................  16

Brunswick v. Western E. E. Co. v. Ponder, 117 Ga. 63 24
Buffett v. Troy and Boston Eailroad Co., 40 N. Y.

168, 172-173 ................................................................. 11

i i
PAGE



Ill

Bullock v. Tamiami Trail Tours, Inc., 266 F. 2d 326 
(5th Cir.) .....................................................................  22

Condict v. Grand Truck Railway Co., 54 N. Y. 500,
502-503 ..........................................................................   5,11

Conklin v. Canadian-Colonial Airways, Inc., 266 N. Y.
244, 247 .................................................................    g

Cray v. Greyhound Lines, 110 A. 2d 892, 177 Pa.
Super. 275 at p. 895 ........................  2,5

Glaser v. Penn R. R., 196 A. 2d 539, 82 N. J. Super.
16 ................................................................................... 2,13

Green Bus Lines, Inc. v. Ocean Acc. and Guarantee
Corp., 287 N. Y. 309, 312 .............................................  21

Gregory v. Elmira Water Light & R. Co., 190 N. Y.
363 ................................................................................. 20

Greyhound Corporation v. Ault, 238 F. 2d 198, 201
(5th Cir.) .....................................................................  20

Griffen v. Manice, 166 N. Y. 188 .................................... 20

Kinchlow v. People’s Rapid Transit Co., et al., 88 
Fed. 2d 764 (C. C. A. D.) c. d. 57 Sup. Ct. 726 .. 23

Louisville & Nashville R. R. Co. v. Chatters, 279
u ; S. 320 ......................................................................2,4,12

Louisville Railroad Company v. Webb, 248 S. W.
2d 429 (Ct. of App. Ky.) .........................................  13

Matthews v. Southern Ry. System, 157 F. 2d 609, 610-
11 (D. C. Cir.) .............................................................  22

Mitchell v. L. E. & W. R. Co., 146 U. S. 5 1 3 .............. 20
Morrison v. Pennsylvania Railroad Company, Vol. 6

C. C. H. Fed. Carriers Cases Par. 80370, p. 2013 
(U. S. D. C., S. D. N. Y.) .........................................  13

New York Central R. R. Co. v. Lockwood, 17 Wall.
(84 U. S.) 357 .............................................................  g

Northern Pacific Railway Co. v. American Trading 
Company, 195 U. S. 439, 459 .................................  11

Penn. R. R. Co. v. Jones, 155 U. S. 333 ...................... 5

PAGE



IV

Quimby v. Vanderbilt, 17 N. Y. 306 .........................  5,11
Railroad Company v. Pratt, 82 U. S. (22 Wall.) 123, 

1 3 2 -1 3 3 ........... ............. ............................................... 11
Schmidt v. Randall, 160 F. Supp. 288, 230 (D. C.

Minn.) ..........................................................................  19
Scholwin case, 70 S. E. 2d 292, 86 Ga. App. 99 . . . .  24
Solomon v. Pennsylvania Railroad Company, 96 P.

Supp. 709 (S. D. N. Y.) ............................... ‘ ............  13
Spears v. Transcontinental Bus System, 226 F. 2d 

94 (9th Cir.) cert den., 350 U. S. 950, reh. den. 350 
U. S. 977 ....................................................................... 13

Talcott v. Wabash R. Co., 159 N. Y. 461, 472-473 . . .  5
Tompkins v. Missouri K  & T Ry. Co., 211 Fed. 391 

(C. C. A. 8th Cir.) ....................................................... 23

Wooten v. Pennsylvania Railroad Co., 288 P. 2d 220,
224 (7th Cir.) cert, den., 368 U. S. 819 .............. 7,14

Statutes Cited

Pair Labor Standards Act (29 U. S. C. Sec. 213(a)
(2)) ..............................................................................  19

Georgia Code, Section 105-202 .....................................  21
Sec. 1(18) of 49 IT. S. C...................................................  3

PAGE



Ittitpft §tat£H (Emtrl nf Appals
For the Second Circuit 

No. 29064

---------------------- o-----------------------

F lorence B laize  E p h r a im ,

Plaintiff-Appellee,
against

S afew ay  T rails, I n c .,

Defendant-Appellant. 

-----------------------o-----------------------

PLAINTIFF-APPELLEE’S BRIEF

Preliminary Statement

The ease presented to the court by the facts of the 
present controversy involve the simple question of whether 
or not defendant-appellant (hereinafter referred to as 
“ appellant” ), an initial carrier, having entered into a 
special contract to transport plaintiff-appellee (herein­
after referred to as “ appellee” ), over its own lines and 
those of connecting carriers, on a round-trip journey from 
New York to Montgomery, Alabama, is exempt from lia­
bility for injuries sustained by appellee, by reason of 
affirmative negligence and wrongful acts of appellant’s 
agents, Southern Stages, Inc., a connecting carrier. Con­
trary to the specious assertions of appellant, the correct 
decision of the court below, on the basis of the evidence 
adduced at the trial and the controlling principles of law 
relating thereto, does not contravene the national policy 
of the Interstate Commerce Act or challenge the pro­
cedures, practices and regulations of the Interstate Com­
merce Commission.



2

P O I N T  I

Amendments to the Interstate Commerce A ct pur­
suant to which Congress assumed control o f the trans­
portation o f  passengers by m otor carriers engaged in 
interstate com merce and the regulation o f  such trans­
portation do not deprive motor carriers thereunder of 
the power to enter into special contracts for the trans­
portation o f  passengers over connecting carriers.

Appellee does not challenge any of the provisions of 
the Interstate Commerce Act cited on pages iii to xvi of 
appellant’s brief, nor does appellee challenge the deci­
sions in the cases cited on pages 11 and 12 of appellant’s 
brief. Appellee respectfully submits, however, that 
neither the statutory provisions of the Interstate Com­
merce Commission Act, cited by appellant, nor the cases 
of Glaser v. Perm R.R., 196 A. 2d 539, 82 N. J. Super. 16, 
and other cases cited by it, or Cray v. Greyhound Line, 110 
A. 2d 892, 177 Pa. Super. 275 at p. 895, are applicable, 
controlling or determinative of the simple question pre­
sented to this court on appeal.

'The Glaser case, supra, insofar as it relates to the lia­
bility of an initial carrier to a passenger for injuries 
sustained on a connecting carrier, adds nothing new to 
this question different from Louisville & Nashville R. R. 
Co. v. Chatters, 279 U. S. 320. While the Glaser decision, 
supra, discussed the underlying purposes of the ICC in 
the promotion of a uniform system of transportation, 
nothing in the court’s opinion (or in the Chatters case, 
supra, upon which the opinion was based) prohibited or 
deprived an initial carrier of the power to incur liability 
by reason of a special contract with a passenger under­
taking or assuming responsibility for such passengers 
through transportation over connecting lines.



3

On page 11 of its brief, appellant cites excerpts from 
the decision in the Glaser case, supra, on page 542 of the 
court’s opinion therein. The excerpt quoted said:

“ Under the Interstate Commerce Act (I. C. A.) 
no carrier by railroad may either extend or aban­
don its line or any part thereof except on the basis 
of a permissive order of the I.C.C. after notice and 
hearing. 49 U. S. C. Sec. 1(18). There are severe 
penalties for violation. 49 U. S. C. Sec. 1(20).”  
(Emphasis added.)

Appellant would like this court to believe that the 
quoted excerpt from the opinion of the court in Glaser, 
supra, and the reference to the statutory provisions of the 
I. C. A. therein prohibited appellant as an initial carrier 
from engaging to transport appellee beyond the physical 
extent of its own franchised lines. However, Sec. 1(18) 
of 49 U. S. C. refers to the physical extension of a carrier’s 
line by construction of a new line or physical facility or 
means of transportation without obtaining a “ permissive 
order”  of the I. 0. C. Sec. 1 of Title 49 U. S. C. provides:

“ 1. par. (18). Extension or abandonment of 
lines; certificate required; contracts for joint use 
of spurs, switches, etc. No carrier by railroad 
subject to this chapter shall undertake the exten­
sion of its line of railroad, or the construction of a 
new line of railroad, or shall acquire or operate 
any line_ of railroad, or extension thereof, or shall 
engage in transportation under this chapter over 
or by means of such additional or extended line of 
railroad, unless and until there shall first have been 
obtained from the Commission a certificate that the 
present or future public convenience and necessity 
require or will require the construction, or opera­
tion, or construction and operation, of such addi­
tional or extended line of railroad, and no carrier 
by railroad subject to this chapter shall abandon all 
or any portion of a line of railroad, or the operation 
thereof, unless and until there shall first have been



4

obtained from the Commission a certificate that the 
present or future public convenience and necessity 
permit of such abandonment * *

The underlying purpose of the above quoted section 
is to prevent improvident and unnecessary expenditures 
for the construction and operation of lines needed to in­
sure adequate service and to protect interstate carriers 
from weakening themselves in the physical construction 
and operation of superfluous lines. The national trans­
portation policy of the United States and the Interstate 
Commerce Act, do not preclude or prohibit an initial car­
rier from entering into a special contract with a passenger 
for transportation over the lines of a connecting carrier. 
Such a contract does not, as appellant apparently sug’- 
gests, amount to an extension of the lines of transporta­
tion of appellant as the initial carrier.

P O I N T  I I

The limitation o f  liability included in tariffs filed 
by appellant and on back o f the ticket issued by it to 
appellee does not preclude appellant from incurring
liability to appellee.

Appellant’s contention that the “ Limitation Printed 
on the Ticket Would Alone Constitute a Contract Binding- 
on Both Carrier and Passenger”  (App. Br., p. 13 *) is a 
distorted application of legal principles set forth in other 
cases controlled by facts which are wholly inapposite to 
the case at bar. Accordingly, the citation of the Louisville

* “ App. Br.” refers to appellant’s brief and page numbers thereto. 
Numbers in parentheses followed by the letter “a” refer to pages 
of the Appendix to Brief of Defendant-Appellant.



5

& Nashville Ry. Co. v. Chatters, 279 U. S. 320; Cray v. 
Penn Greyhound Lines, 110 A. 2d 892, 177 Pa. Super. 275; 
Penn. RR Co. v. Jones, 155 U. S. 333 (App. Br., p. 13) 
cases in support of appellant’s “ Point I I ”  are not au­
thority for exempting appellant from liability to appellee. 
Where a special contract arises between a passenger 
and an initial carrier (see Point III, infra), the “ limita­
tion of liability”  included in tariffs filed by it with the 
Interstate Commerce Commission and appearing on the 
back of a ticket does not absolve the carrier from lia­
bility for injuries to a passenger sustained while traveling 
over the lines of a connecting carrier. Talcott v. Wabash 
R. Co., 159 1ST. Y. 461, 472-473; Condict v. Grand, Truck 
Railway Co., 54 N. Y. 500, 502-503; Quimby v. Vanderbilt, 
17 N. Y. 306.

Neither the “ limitation of liability”  on appellant’s 
tickets nor the provisions of subparagraph (4), Rule 6 in 
Section A3 of appellant’s Exhibit C (167a) placed it 
under a legal disability to enter into a special contract of 
transportation with appellee. Condict v. Grand Truck 
Railway Co., supra; Quimby v. Vanderbilt, supra, at page 
313 of 17 N. Y. Appellant had the power to contract with 
appellee for through transportation to Montgomery, Ala­
bama. “ An owner of one of several lines for transporta­
tion of passengers running in connection over different 
portions of a route of travel may contract as principal for 
the conveyance of a passenger over the whole route. Such 
contract may he established by the circumstances notwith­
standing the passenger received tickets for different lines 
signed by their separate agents.”  Talcott v. Wabash R. 
Co., supra, at 472-473 of 159 N. Y. (Emphasis added.)

The Court in the Wabash case, supra, said at p. 474:
“ Upon all the evidence we think it became a 

question of fact whether the contract was for 
through transportation or not * * (emphasis 
added)



6

The statements appearing on the back of the ticket 
and contained in the tariff are not determinative of the 
relationship arising between appellant, appellee and sub­
sequent connecting carriers. Such statements are merely 
some evidence, susceptible to rebuttal by appellee’s proof ad­
duced at the trial below of facts unequivocally establishing 
that appellant in issuing its ticket acted as principal and, 
as such, did in fact, pursuant to its special contract (see 
Points III, IY, infra) with appellee, assume responsibility 
for her transportation over the connecting lines of its 
agents.

Both the statement on the back of the ticket and the 
provision in the tariff limit the responsibility of the selling 
carrier where the circumstances involve only the selling 
of the ticket and the checking of the baggage. Where fur­
ther facts are found which show that the initial carrier 
was acting as principal in the transportation of the pas­
senger to her destination, then, the limitation of respon­
sibility to its own line arising from the initial carrier’s 
mere sale of the ticket and checking baggage plainly does 
not apply. This is precisely the situation found by the 
Trial Court below.

Each stub of the ticket issued by appellant expressly 
stated that it was for the account of appellant. Appellant 
received 10% of the proceeds derived from the transpor­
tation of appellee over connecting lines of other carriers 
(132a-140a, 143a-146a). In addition to these factors, the 
evidence adduced at the trial established that appellant 
made representations to appellee, express and implied, 
at the time the ticket was issued to her (159a, 25a); that it 
had undertaken the responsibility of transporting appellee 
to her ticketed destination (24a, 28a) ; and that under the 
then prevailing circumstances appellee reasonably relied 
upon said representation. In short, it is the totality of



7-

these additional facts, not the mere issuance or sale of the 
ticket by appellant which results in appellant’s becoming 
the principal in the engagement to transport appellee to 
Montgomery, Alabama, These factors, arising from all the 
surrounding circumstances, rendered inapplicable the lim­
itation of liability on the back of appellant’s ticket and in 
the tariff regulations filed with the Interstate Commerce 
Commission.

After weighing all the facts and surrounding circum­
stances the Trial Court found:

“ Under the circumstances of the present ease, 
however, it is the opinion of this court that although 
the exculpatory declarations on the back of the 
tickets, as well as Rule 6(4) of the tariff, would apply 
where there is a mere sale of the ticket, there are 
other factors present here, in addition to a mere sale 
of a ticket, which render this defendant liable.

“  # '* * [T]he totality of these additional factors 
result in the defendant in this case becoming the 
principal in the engagement to transport plaintiff 
to Montgomery, Alabama, and render the disclaimers 
inoperative to exempt defendant from liability.”  
(p. 15a)

Similarly, in Wooten v. Pennsylvania Railroad Co., 288 
F. 2d 220, 224 (7th Cir.) cert, den., 368 U. S. 819, where the 
ticket stated “ not responsible beyond its line * * *”  and 
defendant’s tariffs provided that “ * * * the issuing carriers 
act only as agents and are not responsible beyond their own 
lines * * * ” , the Court held:

“ I f  the jury was convinced that the alleged negli­
gence existed and could be imputed to defendant, 
then defendant’s disclaimer of liability printed on the 
ticket and in the tariff could not absolve it from lia­
bility occurring beyond its own line #

The decision of the trial court is in accord with the 
principle that limitations of liability must be strictly con­



8

strued. The public policy and law of the State of New York 
is against the legality of common carriers absolutely ex­
empting themselves from liability for negligence in the 
carriage of goods or persons. New York Central R. R. Co. 
v. Lockwood, 17 Wall. (84 U. S.) 357; Conklin v. Canadian- 
Colonial Airways, Inc., 266 N. Y. 244, 247.

Furthermore, the disclaimer contained in subparagraph 
(4) of Rule 6 in Section A3 of the tariff regulations herein­
before described merely states that in issuing tickets and 
checking baggage the “ issuing carrier”  acts only as agent 
and does not have responsibility for transportation over the 
lines of other carriers. The self-serving declination or dis­
claimer of responsibility ‘ ‘ for transportation over the lines 
of other carriers”  (emphasis added) does not on its face 
immunize appellant from liability for personal injuries 
sustained by a passenger by reason of affirmative wrongful 
acts by a connecting carrier from whom appellant receives 
10% of the cost (see Point IV  infra) charged to appellee for 
transportation of such connecting carrier.

P O I N T  I I I

Appellant is liable for the injuries sustained by 
appellee while travelling on the line o f  Southern Stages.

A . W here A  Special Contract Arises Between A  
Passenger and Initial Carrier, Subsequent Con­
necting Carriers Operate as Agents o f The 
Initial Carrier in Carrying Out Its Engagement 
to Transport Passenger to The Ticketed Des­
tination.

Appellant’s assertion that it acted merely as “ agent”  
for the sale of tickets over the lines of connecting carriers 
which appellee was required to travel, in order to reach her 
destination, is contrary to the undisputed record now 
before this court. That “ it did not own, lease, operate”  
(see p. 15 App. Br.) or directly control the physical opera­



9

tion of the bus in -which appellee was travelling, when' 
affirmative wrongful acts were committed against her per­
son, does not insulate appellant from liability. Similarly, 
although appellant may have been required, under the Rules 
and Regulations of the Interstate Commerce Commission, 
to sell tickets for travel over connecting lines, the existence 
of such Rules and Regulations neither deprive appellant of 
the potver to incur liability for through transportation by 
way of special contract, nor does it exempt appellant from 
responsibility for wrongful acts against appellee occurring 
on connecting lines.

B. The Undisputed Record Facts Below Establish 
the Existence o f  a Special Contract W hereby 
Appellant Undertook to Transport A ppellee 
by Motor Bus Over its Own Lines and Those o f 
Connecting Carriers From New Y ork to Mont­
gomery, Alabam a.

On July 31, 1959, appellee purchased from appellant at 
its ticket booth in the Port Authority Building Bus Ter­
minal, in New York City, a round trip ticket for transporta­
tion by motor bus (24a and 25a). Appellee paid appellant 
the full fare for the entire round trip journey (26a).

The argument of appellant set forth in support of its 
“ Point I I I ”  and the cases recited thereunder, as authority 
for appellant’s argument are, at best, relevant to facts 
other than those adduced by appellee in support of her case 
below. The record facts show that appellant did more 
than merely issue tickets to appellee. The sale of tickets 
and appellee’s payment therefor is merely one factor out of 
a totality of factors creating a special contract between 
appellant and appellee.

Appellant made express and implied representations to 
appellee that it had undertaken her round trip bus trans­
portation from New York City to Montgomery, Alabama. 
Printed upon each of the thirteen segments of the round 
trip ticket issued to appellee by appellant was a legend



10

denoting that the origin of the trip was ‘ ‘ New York, New 
York”  and the destination “ Montgomery, Alabama”  
(159a). Upon the face of each stub was printed the nota­
tion that the ticket was issued “ for the account of (S .)” ; 
on the reverse side of each ticket “ (S .)”  was defined as 
“ Safeway Trails, Inc.” , the appellant herein (159a).

Appellee, who came to the United States for the first 
time in December of 1951 (23a) had never travelled or been 
to the southern part of our United States prior to August 
of 1959. As a West Indian Negro, she was concerned that 
the purchase of her round trip ticket from appellant and the 
reservation made concurrent therewith entitled her to a seat 
throughout the entire course of her round trip journey. This 
court may take judicial notice of the existence, in August 
1959, of racially discriminatory practices in the Southern 
States through which appellee was required to travel. Ap­
pellee wanted assurances of her reservation while travel­
ling pursuant, to the ticket issued to her and, consequently, 
specifically asked appellant’s employee whether or not she 
could be assured of a seat during the course of her journey 
(25a). The fact that the reservation slip (Def. Ex. 163a, 
159a) reserved to appellee a seat only as far as Raleigh, 
North Carolina, where a change of bus was scheduled, does 
not lessen the legal weight to be accorded the representa­
tions of appellant’s employee at the ticket window, and 
appellee’s reliance thereupon. The undisputed record fact 
is that appellee reasonably relied upon the express and 
implied representations of appellant that it had undertaken 
to transport her to her desired destination (27a, 28a).

Contrary to appellant’s assertion, appellee did not as­
sert at the trial below nor does she do so herein that such 
representations constituted appellant an insurer or guaran­
tor of safe passage for appellee throughout the entire trip. 
It is respectfully submitted, however, that these representa­
tions, appellee’s reliance thereon, the notations and legend 
on the ticket and the receipt of monies by appellant in the



11

form of a commission (132a-140a, 143a-146a and Point IV  
infra) created a special contract between appellee and ap­
pellant.

Railroad Company v. Pratt, 82 U. S'. (22 Wall.) 
123, 132-133;

Quimby v. Vanderbilt, 17 N. Y. 306;
Condict v. Grand Trunk Railway Co., 54 N. Y. 500, 

502-503;
Northern Pacific Railway Co. v. American Trading 

Company, 195 U. S. 439, 459;
Battle v. Central Greyhound Lines, Inc. of New 

York, Buffalo, 171 Misc. 517, 13 N. Y. 8, 2d 357, 
358 (Sup. Ct.).

C. W here Special Contract Is Established, A p ­
pellant, As Principal, is Liable for  Failure o f 
Connecting Carrier to Exercise Required Care 
in Transporting A ppellee Pursuant to said Con­
tract.

Under well established principles of respondeat su­
perior, appellant, where a special contract arises between 
it and appellee, is liable for breaches of duty, wrongful acts 
and failure of its agent, a subsequent connecting carrier, 
to exercise the standard of care required under the cir­
cumstances in carrying out appellant’s contract with appel­
lee to transport her to her destination of Montgomery, 
Alabama. Buffett v. Troy and Boston Railroad Co., 40 
N. Y. 168, 172-173.



12

P O I N T  I V

Contrary to appellant’s contention, the Court be­
low  did not err in holding that the rule laid down in 
Louisville & Nashville R.R. Co. v. Chatters is inappli­
cable to the circumstances o f  this case.

A. None o f the Cases Recited by Appellant in 
“ POINT III”  o f its Argument Exempt A ppel­
lant From Responsibility For the Injuries and 
Damages Sustained by Appellee.
The principles of law of the cases set forth in appel­

lant’s brief on pages 15 through 20 are neither controlling 
nor determinative on the question of whether or not appel­
lant incurred any liability to appellee for injuries she sus­
tained while travelling on the connecting line of Southern 
Stages Inc. None of the cases involved affirmative acts of 
negligence or intentional wrongs to the plaintiffs therein. 
None precluded an initial carrier from having the power 
of incurring liability by way of special contract for 
personal injuries sustained by a passenger travelling, pur­
suant to a ticket issued by the initial carrier, on lines of 
a connecting carrier. None involved a ticket issued by an 
initial carrier hearing a legend indicating that each stub 
for every part of the trip was issued for its “ own account” . 
None of the cases involved the existence of affirmative 
proof at the trials thereof of any tangible financial and/or 
economic benefit accruing to the initial carrier from the 
sale of tickets for travel over the lines of other connecting 
carriers.

Appellant, in its brief, says that the case of Louisville 
& Nashville Railroad Company v. Chatters, supra, is “ on 
all fours with the case before this court except that the 
nature of the tort is different”  (App. Br., p. 16). Appellee 
has no quarrel with appellant’s recitation of the facts of 
the Chatters case. Nor does appellee challeng-e the holding



13

of that case as applied to the facts therein. The Chatters 
case, however is not “ on all fours”  with the facts and 
circumstances of the case at bar. Chatters involved the 
question of whether or not liability was incurred by an 
initial carrier for injuries sustained by a passenger while 
traveling over the lines of a connecting carrier, pursuant 
to the mere purchase of a round trip ticket from the 
initial carrier. The only similarity between the Chatters 
case and the facts and circumstances adduced at the trial 
herein are: (1) the sale of a round trip ticket by the initial 
carrier; (2) the limitation of liability appearing on the 
ticket, and (3) the injuries sustained by the plaintiff 
therein occurred on the lines of a connecting carrier. 
Neither the reported record facts in the Chatters case nor 
the court’s opinion is controlling’ where a special contract 
arises between a passeng’er and the initial carrier.

Neither in Chatters, supra, nor Glaser v. Pennsylvania 
Railroad Company, 196 A. 2d 539, 82 N. J. Super. 16; 
Spears v. Transcontinental Bus System, 226 F. 2d 94 
(9th Cir.), cert. den. 350' U. S. 950, reh. den. 350 U. S'. 
977); Morrison v. Pennsylvania Railroad Company, Yol. 
6 C. C. H. Fed. Carriers Cases Par. 80370, p. 2013 (U. S. 
D. C., S. D. N. Y .) ; Solomon v. Pennsylvania Railroad Com- 
pany, 96 F. Supp. 709 (S. I). N. Y.) nor in Louisville Rail­
road Company v. Webb, 248 S. W. 2d 429 (Ct. of App. K y.) 
was there any clear and convincing proof, by a fair pre­
ponderance of the evidence, at the trials below that:

(1) The round trip ticket issued for travel was “ for  
the account”  of the defendant initial carrier therein. 
Indeed, in Chatters, supra, as indicated from the excerpt 
of the court’s opinion recited on page 17 of appellant’s 
brief, the ticket issued by the initial carrier under the 
joint tariff then prevailing was expressly “ for the account 
of Southern” , a connecting carrier. Similarly, in Morrison 
v. The Pennsylvania Railroad Company, supra, the ticket 
was issued for the account of a connecting carrier. Each



14

of the stubs of the ticket issued by appellant to appellee here­
in, however, recited expressly on its face, that it was issued 
“ for the account”  of appellant, the initial carrier, and not 
the connecting carrier as in the Morrison and Chatters 
cases. The decisions in the other cases cited by appellant 
and cited hereinabove were either silent on this fact or 
involved the issuance of tickets by the initial carrier for 
the account of a connecting carrier.

(2) The defendant was a direct recipient and bene­
ficiary of an economically advantageous relationship with 
the connecting carrier, upon whose lines plaintiff-passenger 
sustained her injuries, and of a significant percentage of 
the proceeds derived from the sale to plaintiff of transpor­
tation over the lines of a connecting carrier.

(3) The defendant had held itself out to plaintiff 
passenger that it had undertaken, as principal by special 
contract, the transportation of plaintiff to her ticketed 
destination.

(4) Plaintiff had affirmatively relied upon said repre­
sentations and undertaking by defendant.

(5) The connecting carrier had engaged in wanton and 
willful acts of misconduct directly resulting in physical 
abuses and injuries to the plaintiff therein.

Moreover, the court, in Chatters, supra, at pages 330-331 
(see App. Br., p. 17) said:

“ But there was no basis, either in pleading or 
proof, for a joint liability of both petitioners for the 
negligence of one * * There was, therefore, no 
evidence of joint liability of petitioners in the ease 
* * V ’ (Emphasis added.)

The court, in Wooten v. Pennsylvania Railroad Co., 
supra, in distinguishing the facts of that case from those 
in Chatters, supra, said of the Chatters case at p. 224:

“ There a directed verdict in favor of an issuing 
carrier was proper in a tort suit against it and the



15

connecting carrier where there were no allegations 
or proof of negligence by its employees or of such 
relationship that negligence could he imputed to the 
issuing c a r r i e r (Emphasis added.)

The court then went on to say that, in contrast to 
Chatters:

“ These very issues were in dispute in the case 
before us.”  (Emphasis added.)

In the case at bar, however, there was “ proof * * # of 
such relationship, that negligence could be imputed to the 
issuing carrier” . At the trial herein these issues were in 
dispute and were resolved by the court below, the trier of 
the facts, in its findings that the totality o f circumstances 
established “ such relationship”  (a special contract) be­
tween appellant and appellee. Accordingly, under the 
principle of respondeat superior the negligence of Southern 
Stages, Inc. can be imputed to appellant, initial carrier.

The Spears case, supra, is inapposite to the facts herein 
and is not applicable authority for absolving appellant from 
injuries sustained by appellee on the line of Southern 
Stages. 'The very excerpt from the court’s opinion in 
Spears, quoted at page 19 of appellant’s brief, that:

“ Generally, however, a carrier is only responsible 
for acts over its own lines, acts over which it has 
control (citing Chatters) * * * ”

impliedly recognized that, under facts other than those in 
Spears, supra, and Chatters, supra, an initial carrier may 
incur liability for injuries sustained by a passenger over 
the lines of the connecting carrier.

Similarly, in the Morrison case, supra, the very portion 
of the court’s decision quoted by appellant (App. Br., p. 20) 
shows that the “ initial carrier’s liability would depend 
upon the terms of its contract with the passenger” . While, 
as the court noted, these terms may be evidenced by the



16

provisions of the tariffs, the court clearly did not intend to 
exclude the consideration of other circumstances as shown 
by the court’s citation of the Talcott v. Wabash R.R. Co., 
supra, case which squarely held that it is a question of fact 
to be determined by all the circumstances whether the 
initial carrier had contracted as principal for the convey­
ance of a passenger over the whole route.

It is respectfully submitted that, by reason of the special 
contractual relationship that arose between appellant and 
appellee under the particular facts of this case, appellant, 
as an initial carrier, cannot by contractual relationships 
with other instrumentalities or entities avoid its own obli­
gation and duty to its passengers for the entire length of 
the contractual journey. This principle was strongly re­
affirmed by the U. S. Supreme Court in Roynton v. Common­
wealth of Virginia, 364 U. S. 454, 460-461. In this case, while 
the civil liability of a carrier to its passenger was not in 
issue, it was nevertheless necessary to decide whether an 
interstate carrier ’s obligation to provide unsegregated serv­
ice to its passenger extended to the facilities of a terminal 
restaurant. The restaurant in question was not owned by 
the carrier and was not supervised by any employees of 
the carrier. Nevertheless, the court held that the obligation 
of the carrier under the Interstate Commerce Act to pro­
vide non-discriminatory accommodations to its passengers 
extended to the facilities of the terminal restaurant. Justice 
Black in so holding made the following statement:

“ Respondent correctly points out, however, that, 
whatever may be the facts, the evidence in this rec­
ord does not show that the bus company owns or 
actively operates or directly controls the bus ter­
minal or the restaurant in it. But the fact that 
Sec. 203(a) (19) says that the protections of the 
motor carrier provisions of the Act extend to ‘ in­
clude’ facilities so operated or controlled by no 
means should be interpreted to exempt motor car­
riers from their statutory duty under Sec. 216(d) 
not to discriminate should they choose to provide



17

their interstate passengers with services that are 
an integral part of transportation through the use 
of facilities they neither own, control nor operate. 
The protections afforded by the Act against dis­
criminatory transportation services are not so nar­
rowly limited. We have held that a railroad cannot 
escape its statutory duty to treat its shippers alike 
either by use of facilities it does not own or by con­
tractual arrangement with the owner of those facil­
ities. United States v. Baltimore & Ohio R. Co., 
supra. And so here, without regard to contracts, 
if the bus carrier has volunteered to make terminal 
and restaurant facilities and services available to 
its interstate passengers as a regular part of their 
transportation, and the terminal and restaurant have 
acquiesced and cooperated in this undertaking, the 
terminal and restaurant must perform those services 
without discriminations prohibited by the Act. In 
the performance of those services under such con­
ditions the terminal and restaurant stand in the 
place of the bus company in the performance of its 
transportation obligations. Cf. Derrington v. Plum­
mer, 240 F. 2d 922, 925-926, cert, denied, 353 
U. 8. 924, 77 S. Ct. 680, 1 L. Ed. 2d 719. Although 
the courts below made no findings of fact, we think 
the evidence in this case shows such a relationship 
and situation here.”

B. Appellant W as the Recipient o f  Economic or 
Financial Benefits From Proceeds Derived 
From the Transportation o f A ppellee Over the 
Lines o f Connecting Carriers.
Appellant seeks to construct a principle of law from 

the absence of evidence before the court in Chatters, supra, 
on the question of whether the initial carrier received any 
of the proceeds derived from the sale of a coupon ticket for 
transportation beyond its own line. That the Chatters case 
and the other cases which allegedly follow “ the rule laid 
down in Chatters”  made no mention of money inuring 
to the initial carrier did not preclude the trial court 
or any other subsequent court, from taking cognizance of



18

this fact which was established by affirmative proof at 
the trial. Appellant, dissatisfied with the record facts 
in this case, seeks to avoid the factual finding of the 
trial court that it received 10% of the proceeds derived 
from the transportation of appellee over the lines of 
connecting carriers (15a). Not having record facts satis­
factory to its liking, appellant would have this court de­
termine the question of its liability to appellee not on the 
record facts present in this case, but on record facts pres­
ent in other cases, distinctive and different than the factual 
circumstances in the case at bar.

Appellant contends that it received nothing he., no 
economic gain or benefit, from the sale of the coupon ticket 
beyond its own line (App. Br. 22) because the Port Au­
thority charges appellant for use of its terminal at a 
rental of 10% of all money taken in by appellant at the 
terminal. It is respectfully submitted that appellant has 
misconstrued the record evidence and assumed relation­
ships which do not exist in this record. The record is bar­
ren of any fact which would indicate, in any way, that 
the commission (132a) received by appellant was ear­
marked or designated to be turned over to the Port Au­
thority for the rental cost in the terminal.

The testimony of appellant’s own witness, Thomas B. 
Stevens (129a-146a) makes it amply clear that the ap­
pellant has incurred costs in its operations at the Port 
Authority Terminal, and that one of these costs is the 
rental charge which is equal to 10% of all monies taken in 
by appellant at the terminal. Whether appellant received 
a commission of 10% from the connecting carriers who 
are transporting its passengers to their destinations or 
receives 5%, or even no commission, appellant would be 
liable to the Port Authority for the rental charge of 10%. 
By receiving 10% of the proceeds derived from the trans­
portation of the passenger over the lines of connecting 
carriers, appellant has clearly received an economic benefit



19

— a monetary amount which it could use to pay the terminal 
rent, or use for other purposes as it saw fit. If appellant 
mistakenly paid over to the connecting carrier 100% of the 
proceeds derived from transportation of the passenger 
over that carrier’s lines, appellant would have a contract 
right to recover its commission from that carrier. Ob­
viously, during the time that it was not in possession of 
this commission, it could not avoid its unrelated rental 
obligation to the Port Authority.

Essentially, appellant’s position is that, since it has 
a rental obligation of 10% of all monies received from the 
sale of tickets, its commission of 10% from the proceeds 
derived from the transportation of the passenger over the 
lines of the connecting carriers is never received by it 
and is of no benefit to it. As indicated above, the funda­
mental error in this analysis is revealed by the fact that, 
regardless of whether or not any commission is received 
by appellant, it must pay the rental charge of 10% of 
the income from, the sale of the tickets. As long as the 
tickets are sold and money received for their sale, ap­
pellant is obligated for the rental charge. The 10% com­
mission is of no less a benefit to appellant because it ap­
plies this money to the payment of rent than it would be if 
it applied it to the payment of salaries to its employees 
or for other expenditures. Cf. Schmidt v. Randall, 160 F. 
Supp. 228, 230 (D. C. Minn.!), wherein the court held that 
the 10% commission received by a hotel from the sale 
of bus tickets was to be included in the hotel’s annual dollar 
volume to determine whether it was exempt under the 
Fair Labor Standards Act (29 U. S. C. Sec. 213(a)(2)), 
and the court noted that from this commission the hotel 
must pay operating expenses and a portion of an em­
ployee’s salary.

I f  appellant is correct, then the contention that noth­
ing was received and no benefit was realized from the sale 
of an article could be made by any seller in regard to any



20

commission so long as he was able to match an item of 
cost in his operations which was substantially equal to 
the amount of commissions. Clearly, such a result runs 
contrary to basic legal and business sense. Nevertheless, 
the record herein demonstrates that this is precisely what 
appellant has done, since appellant’s witness admits that 
its total costs of operations in New York are 20% (143a) 
and that it has only been able to obtain commissions equiva­
lent to 10%.

P O I N T  V

Appellant is liable for the acts of the police officer 
and for the act of the driver in calling the police 
officer and identifying appellee.

A. Motor Carriers of Passengers Must Exercise 
Extraordinary Care and Diligence for Safety 
of Their Passengers.

Appellant was required to exercise the highest degree 
of care, diligence and precaution for the safety of appellee 
who, by special contract, it had undertaken to transport. 
Mitchell v. L. E. W. R. Co., 146 U. S. 513; Greyhound 
Corporation v. Ault, 238 F. 2d 198, 201 (5th Cir.) See also 
Gregory v. Elmira Water Light & R. Co., 190 N. Y. 363; 
Griffen v. Manice, 166 N. Y. 188.

As stated in Greyhound Corporation v. Ault, supra, the 
rule in Georgia, the situs of the breaches of duty and wrong­
ful acts proven herein, is that:

“  * * * all carriers of passengers, though not in­
surers, must exercise extraordinary care and dili­
gence for the safety of their passengers, and * # * 
the Georgia statutes provide that proof of injury is 
‘ prima facie evidence of want of reasonable skill and 
care’ on the part of motor carriers. Sec. 68-710, 
Georgia Code Annotated.”



21

The Georgia Code, Section 105-202, defines extraor­
dinary diligence as follows:

“ In general, extraordinary diligence is that ex­
treme care and caution which very prudent and 
thoughtful persons exercise under the same or similar 
circumstances. * * * The absence of such diligence is 
termed slight negligence.1’ ’

Proof of the injuries sustained by appellee while travel­
ling on the line of Southern Stages is prima facie evidence 
of want of reasonable skill and care on the part of the agents 
of appellant. The undisputed record facts of the injuries 
sustained by appellee, as described by her own testimony and 
that of the witness, Rosa Lee Benjamin (93a-100a, 110a- 
112a) demonstrated the absence of due care and regard for 
the safety and welfare of appellee. See Green Bus Lines, 
Inc. v. Ocean Acc. and Guarantee Corp., 287 N. Y. 309, 312.

Appellant grossly violated the standard of care required 
of it in the transportation of appellee pursuant to its special 
contract therewith. The trial court, as the trier of fact, 
found on the basis of the evidence adduced at the trial that 
the injuries sustained by appellee occurred by reason of 
affirmative acts of negligence and misconduct committed 
against the person of appellee, while travelling on the bus 
line of Southern Stages.

The Court below found that:

“ In the instant case, the evidence is abundantly 
dear that the entire occurrence was instigated by the 
bus driver. Plaintiff was not causing a disturbance 
and had not violated any regulation of laiu. Notwith­
standing this fact, the "driver left the bus and made 
a telephone call to the police and deliberately brought 
about the unlawful ejection of plaintiff from the bus. 
He himself directed the officer to plaintiff without 
any prior request, and further prevented anyone 
from coming to plaintiff’s assistance. This is a clear 
case in which the driver maliciously initiated, in­
stigated and brought about the unlawful ejection of 
plaintiff and thereby proximately caused the damages



22

and injuries sustained by her. Under these circum­
stances, it is no defense that the physical assault 
itself was not committed by the driver.”  (17a) (Em­
phasis added.)

Contrary to the assertions of appellant (App. Br., 29 
and 30) the conduct of the employee of Southern Stages 
and of the police officer to whom he identified appellee was 
within the foreseeable zone of risk, specifically to be per­
ceived and anticipated from appellant’s breach of its duty 
of care to appellee as a passenger. See Bulloch v. Tamiami 
Trail Tours, Inc., 266 F. 2d 326 (5th Cir.).

B. That the Injuries Sustained by A ppellee Re­
sulted Partially From Acts Committed by an 
Officer o f the Law Does Not Absolve Appellant 
From Liability.
As was said in the opinion of the court below, the ap­

plicable law governing these particular circumstances of 
this case was enunciated in the case of Matthews v. Southern 
By. System, 157 F. 2d 609, 610-11 (D. C. Cir.) wherein it 
was said:

“ This case is governed by the rules of law ap­
plicable to the obligations of a common carrier to its 
passengers and its liabilities for breach of those 
obligations. A  common carrier is required to protect 
its passengers against assault or interference with 
the peaceful completion of their journey. But an 
exception to the general rule is that an agent of the 
carrier is not required to interfere with a known 
officer of the law apparently engaged in the perform­
ance of his duty. This exception covers the action 
of an agent of a carrier in pointing out to a known 
officer of the law persons as to whom the officer in­
quires * * * Under the exception, the railroad is not 
liable for action of its agents in notifying police 
officers of violations of law or suspected violations. 
This latter is so because of the basic public policy 
which protects such notification generally and also 
because of the primary duty of the conductor of a 
train to protect passengers from injury by others;



23

e.g., assault, robbery, insult, disturbance, etc., in 
which cases the conductor must call the police. But 
the exception goes no further. It does not cover the 
action of the agent in otherwise causing, procuring, 
assisting in, or participating in the arrest or ejection, 
or where the arrest is at the instance of the agent. 
In other words, there is a clear line between the action 
of an agent of a carrier in merely notifying the police 
of a violation of law or identifying persons at the 
request of a police officer, and his action in going 
beyond mere notification or identification and by some 
additional act procuring, causing, directing, or par­
ticipating in an arrest or ejection.”

The Kinchlow v. People’s Rapid Transit Co., et ad. 
case, 88 Fed. 2d 764 (C. C. A. D. C.) c. d. 57 Sup. Ct. 
726, cited on page 30 of appellant’s brief, is distinguish­
able from the case at bar because in Kinchlow, the trial 
court found, as a question of fact, that the ejection of 
plaintiff-passenger therein from a connecting carrier motor 
bus, resulted solely from the disorderly conduct of plain­
tiff when ordered by a police officer to change her seat. 
Contrary to the action of appellant’s agent Southern Stages, 
Inc., in Kinchlow “ the driver took no part in the actual 
ejection of the passenger(s) from the car, nor did he 
order or request the policeman to eject plaintiff ”  (at p. 
767). (Emphasis added.)

Appellant’s assertion on page 30 (App. Br.) that “ There 
is no proof that the driver requested the sheriff to remove 
plaintiff from the bus” , in the present case is not sup­
ported by the record below or by the finding of the trial 
court (17A).

Tompkins v. Missouri K  <$> T Ry. Co., 211 Fed. 391 
(C. C. A. 8th Cir.), also cited on page 30 of appellant’s 
brief, is distinguishable from the facts before this court 
because there, in the language of the court: “ The record 
* * * contain (ed) no evidence that the Pullman Company, 
or any of its officers or employees, ever requested, or in 
any way caused or instigated the removal of the plaintiff



24

from the Pullman car in which he was riding * * * ”  (at 
394). (Emphasis added.)

In the Scholwin case, 70 S. E. 2d 792, 86 Ga. App. 99, 
cited on page 31 of appellant’s brief, the court said in a 
sentence immediately preceding the excerpt from the court’s 
opinion, quoted in appellant’s brief, that “ while a carrier 
owes to his passenger the duty of protecting him from 
insult, injury, and mortification, the carrier is not liable 
where a passenger is arrested by a sheriff under a valid 
process”  (at 795). (Emphasis added.)

Surely appellant cannot contend that the evidence pre­
sented at the trial below disclosed any valid and lawful 
process under which appellee was arrested. The undis­
puted record fact is that the plaintiff was not committing 
any act in violation of law at the time the wrongful acts 
were committed against her, while travelling pursuant to 
her special contract with appellant on the connecting line 
of Southern Stages, Inc.

The Brunswick v. Western R. R. Co. v. Ponder, 117 Ga. 
63, also cited on page 31 of appellant’s brief, is distinguish­
able from the present controversy, as is the Tompkins case, 
supra, in that in Brunswick three men boarded the train 
to arrest the plaintiff therein, wholly and completely inde­
pendent of any act on the part of any officer or employee 
of the connecting carrier in which the plaintiff was riding. 
The court said that “ the company was under no duty to 
inquire into the legality of the arrest”  because “ the arrest 
was apparently regular, and in the absence of any knowl­
edge or notice to the contrary, the officers and agents of 
the company could assume that it was lawful”  (at p. 63, 
App. Br.).

The arrest of appellee, however, while travelling on 
Southern Stages, Inc., was not “ apparently regular”  and 
there was no absence of any knowledge or notice to the 
contrary on the part of appellee’s agents. Accordingly,



25

there is no basis on the record facts herein for asserting 
that Southern Stages, Inc., agent of appellant in carrying 
out its special contract with appellee, could assume that 
the arrest of appellee was lawful (17a).

Finally, appellee has never contended “ that appellant 
should not sell tickets to colored people because of the 
possibility of conflict with a local bigot, be he a passenger, 
a bus driver or a police officer”  (App. Br., p. 32). Appellee 
does contend, and the lower court has found, that when 
appellant enters into an engagement to transport a pas­
senger to her destination, which involves travel over the 
lines of connecting carriers to carry out the engagement, 
then appellant itself and through its agents, connecting 
carriers, has a responsibility to exercise due care for the 
passenger’s safety and to refrain from wrongful acts which 
are the proximate cause of injury to the passenger.

CONCLUSION

For the above stated reasons, the judgment below 
should be affirmed.

Respectfully submitted,

L u bell , L ubell and J ones, 
Charles T. M cK in n e y , 

Attorneys for Plaintiff-Appellee.

Clarence B. J ones and 
J on athan  W . L hbell ,

of Counsel.



T he H ecla P ress, 54 L afayette Street, N ew  Y ork City , BE ekm an  3-2320
«̂ §iP»39