问题 单项选择题

2000年8月21日晚11时,原告徐某乘坐被告付某驾驶的出租车(车主为被告阔达公司)前往自己的住所。行车途中,原告的癫痫病突然发作,付某见状将其拖下车,弃于路旁,开车离去。原告认为,被告未能善意履行其基于旅客运输合同应负的义务,在原告发病时,置其生命、财产安全于不顾,将其象一件物品一样,扔下出租车,给其造成了精神损害及心灵创伤,故要求被告赔偿损失。被告不同意原告的主张。对此,下列表述中,正确的是( )。

A.本案中,原告有权主张违约责任,但无权要求侵权损害赔偿

B.本案中,原告有权主张侵权损害赔偿,但无权主张违约责任

C.本案中,原告既有权主张违约责任,又有权要求侵权损害赔偿,并可同时主张

D.本案中,原告既有权主张违约责任,又有权要求侵权损害赔偿,原告得选择其一主张

答案

参考答案:D

解析:本题涉及违约责任与侵权责任竞合问题。依《合同法》第288条规定,运输合同是承运人将旅客或者货物从起运地点运输到约定地点,旅客、托运人或者收货人支付票款或者运输费用的合同。本案中,原告乘坐阔达公司的出租车,即与阔达公司建立了客运关系,阔达公司及其工作人员付某应依约将原告运送至目的地。依《合同法》第107条规定,当事人一方不履行合同义务或者履行合同义务不符合约定的,应当承担继续履行、采取补救措施或者赔偿损失等违约责任。被告半途将发病的原告抛下,构成违约,应依法承担违约责任。依最高人民法院《关于确定民事侵权精神损害赔偿责任若干问题的解释》第1条第1款的规定,自然人因人格尊严权受到侵害的,有权请求赔偿精神损害。本案中,被告司机将发病的乘客扔下车,扬长而去的行为就是不尊重原告的人格,该行为具备侵权行为的构成要件:其一,该行为具有违法性;其二,原告的精神痛苦;其三,该行为与原告的精神痛苦具有因果关系;其四,被告存在主观过错。因此,被告的行为侵犯了原告的人格尊严权,应依法承担侵权损害赔偿之责任。依《合同法》第122条规定,因当事人一方的违约行为,侵害对方人身、财产权益的,受损害方有权选择依照合同法要求其承担违约责任或者依照其他法律要求其承担侵权责任。故本题应选D。需要注意的是,本案中,承担责任的应是阔达公司,而非付某,因其乃履行职务过程中的行为,其责任应由法人承担。

阅读理解

I believe in leaving work at five o’clock. In a nation with such a strict work ethic(道德规范) , this is considered strange. Working only 40 hours a week? I just don’t know many people who punch out (打卡下班) at five o’clock anymore.

My father tried to teach me the importance of hard work, long hours and devotion to a career. But then there are the things he taught me unintentionally, like when he arrived home from work for the last time and crawled up the stairs.

My father, a self-employed sales trainer, was that sick, that tired. His body was wracked with liver cancer, and he suffered the effects of a diabetic ulcer(糖尿病). Despite all this, he insisted on traveling a long way to give a lecture. He probably earned a lot of money that day, but he paid the price. He returned to the hospital soon afterwards and was dead within three months, aged just 58.

It’s been 10 years since I saw my father come home that night and since then, I’ve thought a lot about work. I’ve decided something: I will never crawl up the stairs exhausted. As much as I love my job as a newspaper reporter, I will never work myself into the ground, physically or emotionally. Not taking my work home didn’t come easily to me at first. After all, I am my father’s daughter. In college, I was the girl who sat on the library steps each morning, waiting for the doors to open. I even dreamt about schoolwork.

My dad once told me he was unable to just gaze at a sunset; he had to be doing something as he looked at it—writing, reading, playing chess. You could say he was a success: He was a published author, an accomplished musician, fluent in many languages. That’s an impressive list, but the thing is I want to gaze at sunsets. I don’t want to meet a deadline during them or be writing a column at the same time, or glance at them over the top of a book.

This raises the question: If I leave work at five o’ clock to watch the sunset, what are the consequences? Do I risk not reaching the top of my profession? Maybe, because honestly, knocking off after eight hours probably won’t earn me the best promotion. But hey, leaving work at five o’ clock means I eat dinner with my family. I get to hop on my bike and cycle through the streets of my hometown when there is no traffic.

And I get to take in a lot of sunsets. That’s got to be worth something.

小题1:Which of the following about the author’s father is true?

A.He set a good example to his daughter.

B.He tried to force his values on his daughter.

C.He gained much pleasure from his work.

D.He achieved great success at the expense of his health.小题2:What does the author mean by saying “Not taking my work home did not come easily at first” in Paragraph 4?

A.There was so much work to do.

B.All her colleagues took work home.

C.She was educated to be a workaholic.

D.She wanted a promotion in her work.小题3:What’s the author’s attitude toward promotion?

A.She doesn’t care about it at all.

B.She is eager to get promoted

C.She thinks it’s for the ambitious people

D.Getting promoted at all costs is not worthwhile小题4: This text is developed________.

A.by giving examples

B.by making comparisons

C.by describing process

D.by order of time小题5: What does the writer intend to tell us?

A.To praise his father’s diligence

B.To ask us to take time off work to enjoy life

C.To complain about the strict work ethic

D.To stress the importance of hard work

单项选择题