duct of its servants while engaged in performing a duty which the carrier owes to the passenger. In that case Judge Tracy, writing the opinion of the court, cited many authorities, and, among other things, said: "In the present case the defendant had intrusted the execution of the contract to the driver of the car, and the plaintiff was under his protection. Any breach of the contract committed by the driver was a breach committed by the defendant. It is conceded that any injury arising from the mere negligence of the servant constitutes a breach of the contract. Had the driver, while executing the contract, carelessly and negligently injured the plaintiff, the defendant's liability would not have been doubted. Can it be less a breach of the contract that the injury was intentionally inflicted? An act which would amount to a breach of the carrier's contract if negligently done, would be equally a breach if done willfully and maliciously. It is immaterial whether a breach of contract results from the negligence or willfulness of the defendant's agent. It is the injury that was suffered by the plaintiff while in the defendant's car, and not the motive which induced it, that constitutes the gist of the action. No reason exists for holding a master liable for the negligence of servants in his employment which does not with equal force preclude him from alleging intentional default of the servant as an excuse for not performing a duty which he has undertaken. In the former case the negligence of the servant is that of the master, and that is the ground of the master's liability; in the latter, the act of the servant is the act of the master, the motive of the servant making no difference in regard to the legal character of the master's default in doing his duty."

A rule which should make the carrier liable when the act resulting in the injury was carelessly but unintentionally done, and exonerate him when the injury was the result of the intentional act of the servant, would lead to most absurd results. It has been held that a railroad company, by the sale of a ticket for passage on its road, assumes the obligation and undertakes absolutely to protect the passenger against any injury from negligence or willful misconduct of its servants while performing its contract; and that, whatever may be the motive which incites the servant to commit an unlawful or improper act towards the passenger

during the existence of the relation of carrier and passenger, the carrier is liable for the act and its natural and legitimate consequences. In such a case, too, it has been held that it is wholly immaterial upon the question of the defendant's liability that the servants acted in good faith.'

A carrier corporation is liable for all acts of wantonness, rudeness or force, done or caused to be done by its agents or servants, in or about the business or duties assigned to them, although in violation of the general rules or orders prescribed for their conduct; and the rule as to vindictive damage for such acts, in an action against the corporation, is the same as in actions against natural persons. Although a brakeman in the absence of express orders, has no authority to eject a passenger from a train, a railroad company will be liable for an injury wantonly inflicted on a passenger traveling on a train on which such brakeman is employed. So a railway company. is most unquestionably liable for the malicious and criminal acts of its employés towards passengers while they are executing what they suppose to be the orders of the company, even though the orders do not in fact contemplate such acts. Where an agent commits an assault in the line of his duty and within the scope of his employment the master is liable. A street railway company is liable for an assault by a driver upon a passenger, committed for the purpose of procuring him to pay his fare, which the latter claimed to have once paid.* A railroad company is responsible for an assault and battery by the conductor of one of its trains upon a passenger in seizing or attempting to seize his property to enforce payment of his fare." Where a passenger on a street car by mistake put too much fare in the box and was reimbursing himself by collecting fares from 'Duinelle v. New York Cent. & H. R. R. Co. 8 L. R. A. 224, 120 N. Y. 122; see also Hamilton v. Third Ave. R. Co. 53 N. Y. 25.

Louisville & N. R. Co. v. Whitman, 79 Ala. 328.

Wabash R. Co. v. Savage, 6 West. Rep. 298, 110 Ind. 156.

4Mc Kinley v. Chicago & N. W. R. Co. 44 Iowa, 314; Chicago & E. R. Co. v. Flexman, 103 Ill. 546, 8 Am. & Eng. R. Cas. 354; Gasway v. Atlanta & W. P. R. Co. 58 Ga. 216.

Hamilton v. Third Ave. R. Co. 13 Abb. Pr. N. S. 318, 3 Jones & S. 118. 6 Malecek v. Tower Grove R. Co. 57 Mo. 17.

Ramsden v. Boston & A. R. Co. 104 Mass. 117; Moore v. Fitchburg R. Corp. 4 Gray, 465; Hewett v. Swift, 3 Allen, 420; Holmes v. Wakefield, 12 Allen,

incoming passengers, and the driver removed him from the car for so doing, the driver is guilty of an assault for which the railroad company is liable.'

Striking a passenger, throwing him down, trampling on him, etc., is ground of action against the company for assault and battery.* A carrier is responsible for the malicious and wanton acts of its servant to a passenger, whether done in the line of his employment or service or not, if done in the course of the discharge of his duty to the master which relates to the passenger. A brakeman who kicks a passenger as the latter is attempting to board a moving train renders the company liable for the injuries resulting from his act. Where a person, desiring to become a passenger upon a freight train, entered the caboose and the conductor insolently refused to carry him, and struck him with his lantern, the railroad company was liable.*

Carriers of passengers by water are under the same liability as those by land for assaults by their servants. The plaintiff offered to purchase a ticket for his passage upon defendant's steamboat when he embarked, but the clerk refused to change the bill which he offered in payment, and later, upon refusal to pay his fare, the clerk assaulted plaintiff and removed him to another part of the boat. It was held that, although the plaintiff could have been removed from the boat for his refusal to pay, yet the carrier was liable for the assault upon him while he was permitted to remain." Receivers of a railroad company are liable for injuries to a passenger on a train, resulting from the willful or malicious acts of the conductor. If a passenger on a train receives injuries which are the direct and necessary result of willful, wanton, or malicious acts of the conductor or those assisting him, he is entitled to damages therefor. Where a brakeman refused to allow a passenger

'Corbett v. Twenty-third St. R. Co. 42 Hun, 587.

Priest v. Hudson River R. Co. 10 Abb. Pr. N. S. 60.

Eads v. Metropolitan R. Co. 43 Mo. App. 536.

Molloy v. New York Cent. & H. R. R. Co. 10 Daly, 453.

* Western & A. R. Co. v. Turner, 72 Ga. 292, 53 Am. Rep. 842.

*Block v. Bannerman, 10 La. Ann. 1; Springer Transp. Co. v. Smith, 16 Lea, 498.

'Pendleton v. Kinsley, 3 Cliff. 416.

*Dillingham v. Anthony, 3 L. R. A. 634, 73 Tex. 47.

'Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608.

to pass through the ladies' car, used abusive language and committed an assault, plaintiff was entitled to exemplary damages.' A street car company is liable for damages occasioned by the wrongful, wanton, and malicious ejection of a passenger by its conductor. Although a servant of a carrier may be obliged to use force in the enforcement of reasonable regulations established by the carrier, the carrier will not be protected if he uses excessive or unnecessary force.'

For unnecessary force in ejecting a passenger the company is liable, although the conductor had the right to remove him.* If the conductor, acting in the performance of his duty, exceeds the degree of force necessary and proper to accomplish the purpose of removal, and injury results, the company is also liable." A railroad company is liable for a willful assault committed by its brakeman in an effort to discharge his duty to put a trespasser off the train. A carrier is responsible for the malicious and wanton acts of its servant to a passenger, whether done in the line of his employment or service or not, if done in the course of the discharge of his duty to the master which relates to the passenger. A railway company selects its own agents at its own pleasure and is bound to employ none but capable prudent and humane men." If the carrier places lady passengers under the protection of libertines who insult or assault them, or male passengers under the protection of drunken ruffians who fall upon and beat them without cause, it will be responsible for the injury. This rule rests upon sound reason and is abundantly supported by authority. Where a person is assaulted and grossly insulted by a brakeman employed on the train, the company is liable." Where a conductor on a train makes an indecent assault on a

'Atlanta & W. P. R. Co. v. Condor, 75 Ga. 51.

North Chicago City R. Co. v. Gastka, 4 L. R. A. 481, 128 Ill. 613. New Jersey S. B. Co. v. Brockett, 121 U. S. 637, 30 L. ed. 1049. 4Chicago, St. L. & P. R. Co. v. Bills, 1 West. Rep. 347, 104 Ind. 13.

Jackson v. Second Ave. R. Co. 47 N. Y. 274; Ramsden v. Boston & A. R. Co. 104 Mass. 117.

Alabama G. S. R. Co. v. Frazier, 93 Ala. 45. Eads v. Metropolitan R. Co. 43 Mo. App. 536. Pennsylvania R. Co. v. Vandiver, 42 Pa. 365. 'Goddard v. Grand Trunk R. Co. 57 Me. 202.

female passenger the company is liable for compensatory damages.'

A master is liable for the tortious acts of his servant, done within the scope of the servant's authority, although in disobedience of instructions or orders. The employer is estopped to deny his A railroad company is responsible for the unlawful violence and misbehavior of its employés to its passengers both on the cars and at the office.*

servant's authority.

Where plaintiff, a passenger on a steamboat, was assaulted and injured by the steward, the master as common carrier was held liable for the injury. Where a passenger on its boat was insulted and injured by the officer of the boat the carrier was held liable. Where a brakeman assaulted a passenger, the company was held liable. For violation of their rights passengers have their remedy by action on the contract of carriage.

A street car company is liable to damages occasioned by the wrongful, wanton, and malicious ejection of a passenger by its conductor. Such act is within the general scope of the conductor's employment. And it is immaterial that the person ejected is only a trespasser, if the manner of the ejection be violent and malicious. As the driver of a street car has the carrier's authority to expel improper or disorderly persons, and the carrier is answerable for his errors in the exercise of the power, it will be responsible where he throws a passenger from the cars causing him personal injuries, although the act of the driver was willfully done.'

The authorities are numerous which sustain the position already stated that if undue force is used in a lawful removal of a passen

Craker v. Chicago & N. W. R. Co. 36 Wis. 657; Southern Kansas R. Co. v. Hinsdale, 38 Kan. 507.

See McCord v. Western U. Teleg. Co. 1 L. R. A. 144 and note, 39 Minn. 181. 'See Dillingham v. Anthony, 3 L. R. A. 634, 73 Tex. 47.

'Savannah Street & R. R. Co. v. Bryan, 86 Ga. 312, 9 Ry. & Corp. L. J. 136. 'Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311.

*Sherley v. Billings, 8 Bush, 147, 8 Am. Rep. 451.

Chicago & E. R. Co. v. Flexman, 103 Ill. 546; Cain v. Minneapolis & St. L. R. Co. 39 Minn. 297.

North Chicago City R. Co. v. Gastka, 4 L. R. A. 481, 128 Ill. 613; Atchison, T. & St. J. R. Co. v. Gants, 38 Kan. 608; Southern Kansas R. Co. v. Rice, 38 Kan. 398.

*Lyons v. Broadway & 8. A. R. Co. 32 N. Y. S.R. 232.