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recover for an injury sustained.' But when a conductor is merely asked how long a train will stop at a certain station, and tells the passenger, he is not presumed to know that the latter desires to alight on business, and does not thereby assume any obligation to watch the movements of the passenger or delay the train on his account.
A conductor is a general agent of the company as far as concerns the rights of passengers in reference to alighting from a train.' Passengers on board of cars are under the direction and control of the conductor, and it is his duty to exercise the greatest care and precaution in providing for their safety. It is his duty to use vigilance and care in maintaining order and protecting passengers from violence and insults. Failure to do so renders the company liable in damages to the injured passenger."
It is the duty of an engineer to keep a constant lookout for obstructions, and, if he discovers one, to promptly resort to all means within his power known to skillful engineers to avert the threatened injury or danger. But he is not required to heed the signal to stop his train, given by a stranger, when no danger is in sight or is reasonably to be apprehended. If a driver or
' brakeman on an elevated car sees fit to intimate to a boy to come forward and he follows the intimation and then if, instead of stopping the car he seizes the person of the child to lift him per force from the moving car, there can be no doubt but that would be an act of negligence--that kind of neglect in the discharge of the duties appertaining to his employment for which his principal would be liable. The principal is not liable for every unlawful act of his agent, or for an act done out of the course of his employment, but this would be an act done in the course of his employment, the inviting or assisting or getting passengers off the car in which the law would hold the principal responsible.'
Alabama, G. 8. R. Co. v. Hleddleston, 82 Ala. 218. ' Missouri Pac. R. Co. v. Foreman, 73 Tex. 311. * Louiscille, N. A. & C. R. Co. v. Wood, 13 West. Rep. 319, 113 Ind. 570. *Bellman v. New York Cent. & H. R. R. Co. 42 Hun, 135. *Spohn v. Missouri Pac. R. Co. 2 West. Rep. 118, 87 Mo. 74. *Bullock v. Wilmington & W. R. Co. 105 N. C. 180, 42 Am. & Eng. R.
Cas. 93. · Blair v. Grand Rapids & I. R. Co. 60 Mich. 124. Drew v. Sirth Ave. R. Co. 26 V. Y. 49.
A case of novel and unusual interest recently came before the Kansas Supreme Court. A person about to travel to a point on the Chicago, Kansas & Western Railroad purchased a ticket from an agent who at the time was suffering from smallpox. As a result the purchaser contracted the disease, and afterwards brought an action against the company for $20,000 damages. The court holds that he cannot recover, because proof of knowledge on the part of the company of the agent's illness when he sold the ticket was not shown, and on the further and broader ground that the Hegligent act, if any, of the agent in imparting a contagious disease to the purchaser of the ticket was not within the scope of his authority, so as to charge the company, his master. The court says: "The sickness of an agent with a contagious disease cannot be presumed to be authorized or directed by the master, and is not an incident in any way to the employment of selling tick. ets or acting as agent at a station. We are not referred to any decisions, and we cannot find any in the books where a master or railroad company has been held liable in a case like this."
Where the defendant in an action was in command of a steamship at quarantine, which was directed to be fumigated by the deputy health officer of the port of New York—by his order the chief steward cleared the passengers from the steerage, and utensils containing some poisonous substances were placed therein for the purpose of fumigation-and the health officer gave instructions as to the length of time the steerage should remain closed and as to the removal of the vessels, but one of these, an ordinary drinking cup, was not removed with the others and plaintiff's intestate a child of four years, who with his mother, had been ordered by the steward to return to the steerage cabin, drank some of the poison in the cup and died from the effects thereof; in an action to recover damages, held, that it was within the line of defendant's duty to see that the poison was removed; and for his negligence, or the negligence of his subordinates in omitting to discharge this duty, he was liable. Also held that, as the mother of the deceased had been directed to return to the cabin, she had the right to infer that everything was safe and that no extraordi
"Long v. Chicago, K. & W. R. Co. (Kan.) 15 L. R. A. 319.
nary diligence on her part was required for the protection of her child.'
The Act of Congress of March 30, 1852, "to provide for the better security of the lives of passengers on board vessels propelled in whole or in part by steam or for other purposes," does not exempt the owners and master of the steam vessel and the vessel from liability for injuries caused by the negligence of its pilot or engineer, but makes them liable for all damage sustained by a passenger or his baggage, from any neglect to comply with the provisions of the law, no matter where the fault may lie; and in addition to this remedy, any person injured by the negligence of the pilot or engineer, may have his action directly against those officers."
$ 105. Liability for Violence of Employes-Former
Rule. Carriers on water and land select and appoint their own agents without consulting the passengers, and it is but reasonable that they should be held responsible for any act of violence to the passenger of which such employés may be guilty, as the moment the passenger enters the steamer or other conveyance, he is more or jess under the orders and control of the master or conductor. Fit or unfit, humane or brutal, good-tempered or morose, the passenger is comparatively helpless, and may be obliged to submit for the time being without any means of redress. It has been said that he may have his remedy against the carrier, if he can prove that the carrier was negligent, or that the person active in the wrong, was the agent of the carrier and was in the course of his employment, but, if not, he must be content with his remedy against the assailant of his person. There are adjudged cases which support this proposition, without qualification.
In an action for damages to a passenger by reason of the carelessness and negligence of the driver of the car (who was also conductor), who, while a man who was intoxicated was trying to get off the car while in motion, seized hold of him to prevent his falling, but the man slipped from liis grasp, fell under the car and
Kennedy v. Ryall, 67 N. Y, 379.
his arm and leg were injured by the wheels passing over them, it was said that if the conduct of the driver in such case is willful and malicious, with intent to injure plaintiff, he might be indictable for assault with intent to kill, or some other criminal offense, but his employer is not responsible for his crimes nor for his acts of willful and malicious trespass. The company was answerable only for his negligence or his incapacity or unskillfulness in the performance of the duties assigned him. In such case punitive damages cannot be allowed or any damages beyond full compensation for the injury sustained.' But is not the company responsible for employing a conductor who assaults passengers willfully and maliciously?
In a Pensylvania case the court said: “We do not say that in no case can a blow be given by a conductor or a driver, and be within the scope of his authority. It certainly may when, by resistance to proper authority it becomes necessary to execute that authority. No company would ever confer the authority even to beat trespassers on their cars. In this case the blow knocked the plaintiff
' off the car and by culpable negligence the car was driven over his foot and he was badly injured. The driving of the car wes within the scope of the driver's employment, and for this the company was answerable. It was for this that damages were given.'
In an English case it was decided that “a person who puts another in luis place to do a class of acts, in substance necessarily leaves liim to determine, according to the circumstances which arise, when an act of that class is to be done, and trusts him for the manner in which it is done. Consequently he is answerable for the wrong of the person so entrusted in the manner of doing such act wder circumstances in which it ought not to have been done, provided that which is done is not done from any caprice of the servant, but in the course of the employment." In that case the company was held answerable for £200 for injury done a passenger by a porter who attempted to remove him from a train which he was rightfully on but which the porter thought was the
Mcheon v. Citizens R. Co. 42 Mo. 79. * Pittsburg, A. & M. Pass. R. Co. v. Donahue, 70 Pa. 119. 3 Bayley v. Manchester, S. & L. R. Co. L. R. 7 C. P. 415.
The conductor of a street car is not a driver of a carriage within the meaning of a statute, which makes the owners of carriages running upon the highway liable for all injuries and damages done by a driver while driving such carriage, whether the act was willful or negligent, and following this line of cases, where plaintiff, a passenger on defendant's car, desiring to alighit, passed ont upon the platform of the car and requested the conductor to stop the car and refused to get ont till the car had come to a full stop, whereupon, and while the car was in motion, the conductor threw her from the car with great violence out upon
pavement, whereby she was seriously injured, it was held that the act was a wanton and willful trespass and not in the performance of any duty to or any act authorized by the carrier, and that such (arrier was not liable. The court said: “If an act is done by the servant on the business of the master, and within the scope of his employment, the master is liable to third persons for any abuse of the authority conferred, or for injuries resulting from any error of judgment or mistake of facts by the servant, as well as for those resulting from negligence or the reckless performance of his duties.”
The judgment in an early New York decision was upon this ground and authorities are cited in the opinion of the court by Judge Andrews; but the same authorities, as well as the judgment in that case, reaffirm and recognize the principle that for the willful, wanton and reckless acts of the servant not committed in the service of the master, and not within the line of his duty or the scope of his employment, the master is not liable. The line separating the acts for which the master is responsible, from those for which he is not responsible, it is admitted, is not in all cases, very well defined, and in some cases it may be difficult to distinguish between the two classes of acts. The difficulty is not however, it is said, as to the principle but in its application to particular circumstances and the question of liability does not depend upon the quality of the act but rather upon the other question whether it has been performed in the line of duty and within the scope of the authority conferred by the master.' Carriers are not respon'Higgins v. Waterrliet Turnp. & R. Co. 46 N. Y. 27. See also Seymour v.
Greenwood, 7 Hurlst. & N. 355; Limpux v. London Gen. Omnibus Co. 1