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Ephraim v. Safeway Trails

February 23, 1965


Lumbard, Chief Judge, and Hays and Marshall, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge

Safeway Trails, Inc., appeals from a judgment rendered against it in the Southern District of New York in favor of Florence Ephraim for personal injuries suffered by her arising out of an assault while riding in Georgia on the bus of a connecting carrier, Southern Stages, Inc.*fn1 For reasons indicated herein, we find that the initial carrier, Safeway Trails, which sold the through ticket, cannot be held liable for the culpable actions of the connecting carrier and accordingly we reverse the judgment below.

As plaintiff was successful below, we take the facts in the light most favorable to her. Plaintiff is a Negro woman, residing in New York. On July 31, 1959, she purchased a round trip bus ticket between New York and Montgomery, Alabama, from a Safeway Trails' ticket agent in the Port Authority Bus Terminal in New York City. She received a strip of detachable ticket stubs, each stub good for a particular portion of the trip over connecting bus lines. Each ticket stated that it was sold "for account of [Safeway Trails]." The back of each ticket contained the following exculpatory clause:

"In selling this ticket and checking baggage thereon the selling carrier acts only as agent and is not responsible beyond its own line and does not assume expense of transfer at any junction or guarantee any connections."

As more fully set forth below, ten per cent of the proceeds of the sale of Southern Stages' tickets was retained by Safeway Trails, all of which ten per cent was turned over to the Port Authority.

Safeway Trails operates buses as far south as Washington, D.C. (It was undisputed that Safeway Trails operated, but did not own the bus on which Mrs. Ephraim traveled to Washington.) South of Washington, plaintiff's route took her over the lines of five connecting carriers.*fn2 Safeway Trails sold the tickets for the complete trip on each of the connecting carriers. Mrs. Ephraim also secured a reservation coupon for seat 34 on the bus as far south as Raleigh, North Carolina.

Mrs. Ephraim commenced her trip in New York in August 1959, on a bus operated by Safeway Trails. Drivers were changed at Washington, as the bus left the line of the Safeway Trails. In Raleigh, North Carolina, there was a change of both bus and driver. After boarding the new bus, plaintiff inquired about her seat and the driver told her, "Lady, on this bus you sit anywhere." Later there was another change of drivers in South Carolina.

While the bus was traveling through Georgia, on the line of Southern Stages, a white woman with two children boarded the bus. After receiving a complaint from the woman that there were no vacant seats in the front of the bus, the driver requested Mrs. Ephraim to move to one of the vacant seats in the rear of the bus. Plaintiff refused as did Mrs. Benjamin, a Negro woman in the adjacent seat. The driver told the white woman that he would "make a phone call," left the bus and returned about five minutes later. Sometime later, when the bus stopped at Warrenton, Georgia, the driver got off the bus and returned shortly with a man who was carrying a club and a pistol and who appeared to be a policeman. The bus driver pointed out Mrs. Ephraim and Mrs. Benjamin as "those two colored girls." The policeman ordered Mrs. Benjamin to the rear of the bus and she promptly complied. He then awoke Mrs. Ephraim, who had been sleeping, and when she refused to go to the rear of the bus, he pulled on her sweater and told her to leave the bus. As she started to obey this order, the officer pushed her down the aisle and when she reached the stairwell clubbed her on the head, knocking her off the bus. When she regained consciousness, she was beaten further, subjected to verbal abuse regarding her race and threatened with death by two white men, one of whom was the policeman who had removed her from the bus. When Mrs. Benjamin attempted to get off the bus to aid the plaintiff, the bus driver closed the door and drove off. As the plaintiff was bleeding profusely, she was taken to a hospital where she spent the next two days. Upon leaving the hospital she proceeded the same day to Montgomery, Alabama, on a visit unrelated to this claim and then returned to New York City.

Plaintiff commenced this diversity action against Safeway Trails in the Southern District of New York.*fn3 Southern Stages, on whose line the incident occurred, was not joined as a party. After a trial without a jury, Judge Cashin granted judgment for the plaintiff for $5,000.

Plaintiff must overcome two legal hurdles in order to succeed on her claim. First, she must show that the initial carrier, Safeway Trails, can be held liable for acts committed on the lines of the connecting carrier, Southern Stages, although there was no culpable act on the part of Safeway Trails. Second, she must show that the bus line may be held liable for the torts of a police officer acting pursuant to the request of the carrier. See Matthews v. Southern Ry. System, 81 U.S. App. D.C. 263, 157 F.2d 609 (1946). As we find the first issue dispositive of the case, it is unnecessary to consider the second.

It is well settled that, absent a finding of fault on its part, an initial carrier may not be held liable for the torts of a connecting carrier committed on the line of the connecting carrier. This has been the rule in cases involving interstate transportation since the decision of the Supreme Court in Louisville & N.R.R. v. Chatters, 279 U.S. 320, 73 L. Ed. 711, 49 S. Ct. 329 (1929). Chatters holds that in addition to this general presumption against the finding of liability on the part of the innocent initial carrier, such carrier may limit its liability for acts of connecting carriers committed on the latter's lines by notations on its tickets and by filing the appropriate tariff with the Interstate Commerce Commission, pursuant to 49 U.S.C. § 6(1). Safeway Trails had taken these steps to limit its liability. As indicated above, exculpatory language was printed on the reverse side of each ticket. The front of each ticket states that it is "Subject to Tariff Regulations." Rule 6(4) of § A3 of the Rules and Regulations of National Passenger Tariff No. A-1000 filed on behalf of Safeway Trails with the Interstate Commerce Commission provides as follows:

"In issuing tickets and checking baggage under tariffs subject hereto for baggage over the lines of other carriers participating in such tariff, the issuing carriers shown in such tariff act only as agents and do not assume responsibility for transportation over the lines of other carriers except as responsibility may be imposed by law with respect to baggage."

Without more, under the general rule of the Chatters case and the tariff and form of ticket used by Safeway Trails, no liability may be imposed on Safeway Trails for the acts committed while the plaintiff was traveling on the lines of Southern Stages. Spears v. Transcontinental Bus System, 226 F.2d 94 (9 Cir. 1955); Solomon v. Pennsylvania R.R ., 96 F. Supp. 709 (SDNY 1951); Glaser v. Pennsylvania R.R ., 82 N.J. Super. 16, 196 A.2d 539 (1963); Berry v. ...

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