when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.” 1

3. Unintentional Wrongs. The wrong for which the master shall respond need not be an intentional wrong; indeed the liability is commonly all the plainer if it is not. When the servant, in the course of this employment, so negligently or with such want of skill conducts himself in or manages the business that an injury to some third person results in consequence, the master is responsible for his negligence or want of skill. Every man owes to every other the duty of due care to avoid injury; and whether he manages his business in person or entrusts it to others, he must, at his peril, see that this obligation is observed. If another has suffered an injury through the negligent or improper management of the business, the right of action arises. irrespective of the agency by which the business was conducted.'

Rounds. Delaware, &c., R. R. Co. 64 N. Y. 129, 134; S. C. 21 Am. Rep. 597. Compare Horner v. Lawrence, 37 N. J. 46. See, also, Cohen

Dry Dock, &c., Co., 69 N. Y. 170. If the acts were done in the course and within the scope of the employment and with a view to further the master's interests, even though they were willful, the master is liable. Mott . Consumers Ice Co., 73 N. Y. 543. So where an engineer, within the scope of his power but negligently, puts off his engine one riding thereon at his invitation in violation of master's rules, although the invitation was beyond his authority. Chicago, &c., Ry. Co. v. West, 17 N. E. Rep. 788 (Ill.) So where a servant willfully tested a boiler for a higher pressure than the master indicated and it exploded. Ochsenbein . Shapley, 85 N. Y. 214. For reckless acts the master is liable but not for malicious and

intentional injuries. Penn. Co. v. Toomey, 91 Penn. St. 256; Cleveland v. Newsom, 45 Mich. 62; Wood v. Detroit, &c., Co., 52 Mich. 402. See Marion v. Chicago, &c., Ry. Co., 59 Ia. 428; Deihl v. Ottenville, 14 Lea, 191.

2 Shearm. & Redf. on Neg. § 59; O'Connell . Strong, Dudley, 265; Puryear. Thompson, 5 Humph. 397: Luttrell v. Hazen, 3 Saeed, 20; Campbell v. Staiert, 2 Murph. 389; Harriss v. Mabry, 1 Ired. 240; Brasher v. Kennedy, 10 B. Mon. 28; Morgan v. Bowman, 22 Mo. 538; Brackett v. Lubke, 4 Allen, 138; McDonald v. Snelling, 14 Allen, 290; Andrus v. Howard, 36 Vt. 248; Tuel v. Weston, 47 Vt. 634; Sanford v. Eighth Ave. R. R. Co., 23 N. Y. 343; Quinn v. Power, 87 N. Y. 535; Toledo, &c., R. R. Co. v. Harmon, 47 Ill. 298; Hays v. Miller, 77 Penn. St. 233; S. C. 18 Am. Rep. 445; Smith v. Web

*The term business, as here employed, is not restricted in its meaning to business in the ordinary sense, but embraces everything the servant may do for the master, with his express or implied sanction.

4. Disobedience of Orders. It is immaterial to the master's responsibility that the servant at the time was neglecting some rule of caution which the master had prescribed, or was exceeding his master's instructions, or was disregarding them in some particular, and that the injury which actually resulted is attributable to the servant's failure to observe the directions given him. In other words, it is not sufficient for the master to give proper directions; he must also see that they are obeyed.'

Recurring once more to the case of the conductor of a rail way train: Let it be supposed that the company has given the most careful and exact directions for a cautious management, and that, amongst other things, it has directed that no train shall leave a station until orders to that effect are received by telegraph from the managing office; but that, notwithstanding these directions, the conductor, confident of his ability to reach the next station without injury, puts his train in motion, and a collision occurs. The case supposed is one in which no moral wrong is attributable to the managing officers; but the fact remains that in the management of their own busi- [*540] ness through agents an injury has been inflicted on others. That they trusted a servant who has ventured to disobey instructions is their misfortune, but it ought not also to be the misfortune of others who had no voice in his selection, and who had no concern in the question who should manage the company's business beyond the common concern of all the public that it should not be managed to their injury.'

The negligence of a farm servant may afford another apt illustration. The farmer directs his servant to burn over his fallow, but to do so when the wind is in the east, because the adjoining premises on the east would be especially exposed to damage if any other time were chosen. The servant thoughtlessly or recklessly sets the fire when the wind is blowing from the west, and the calamity the farmer had intended to guard against befalls the neighbor. The disobedience is culpable in the servant, and the master, having taken those precautions which, if observed, would have prevented the injury, is free from fault, but, nevertheless, his duty to his neighbor to so use his own as

7 Cush. 385; Garretzen v. Duenckel, 50 Mo. 104; S. C. 11 Am. Rep. 405; Higgins v. Watervliet, P. R. Co., 46 N. Y. 23; S. C. 7 Am. Rep. 293; Paulmier v. Erie R. Co. 34 N. J. 151; Johnson v. Centr. Vt. R. R. Co, 56 Vt. 707; Mound City, &c., Co. v. Conlon, 92 Mo. 221.

'Philadelphia, &c., R. R. Co. v. Derby, 14 How. 468. See Powell v. Deveney, 3 Cush. 300; Weed v. Panama R. R. Co., 17 N. Y. 362; Luttrell

v. Hazen, 3 Sneed, 20. In Harriman v. Pittsburgh, &c., Co., 12 N. E. Rep. 451 (Ohio), servants in disregard of instructions placed signal torpedoes on the track, where there was no need of so doing, and a lad was hurt by one exploding. The master was held liable on the ground that the servants were doing the master's work, though deviating from the line of duty in disobeying orders.

not to injure the neighbor has failed in performance, and the law leaves him to bear the consequences.' It would be equally preposterous on the one hand to hold the master responsible whose servant should purposely set fire to a neighbor's house and thereby destroy it, and on the other to excuse him from the consequences of a fire which he had directed, because the agent he employed was not as careful as he had instructed him to be.

The foregoing rules seem to be just and require support from no reasoning, except such as would readily suggest itself to any thoughtful mind. Proceeding further with our subject we encounter questions which are more difficult, and rules a concur

rence in which is by no means universal. They will be [*541] found,*however, to be rules firmly grounded in authority, and they probably subserve the general interest better than any which could be substituted in their place. The rules here referred to relate to the liability of the master to the servant himself, where the latter has been injured in his service.

General Rule: Master not liable to Servant. The rule is now well settled that, in general, when a servant, in the execution of his master's business, receives an injury, which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself.

The reason most generally assigned for this rule is that the servant, when he engages in the employment, does so in view of all the incidental hazards, and that he and his employer, when

The following, among a great number of cases, illustrate this general rule: Moir v. Hopkins, 16 Ill. 313; Keedy v. Howe, 72 Ill. 133; Cosgrove v. Ogden, 49 N. Y. 255; S. C. 10 Am. Rep. 361; Rounds v. Delaware, &c., R. R. Co., 64 N. Y. 129; 21 Am. Rep. 597; Kreiter v. Nichols, 28 Mich. 496; Barden v. Felch, 109 Mass. 154; Coleman v. New York, &c., R. R. Co., 106 Mass. 160; Garretzen v. Duenckel, 50 Mo. 104; S. C. 11 Am. Rep. 405; Redding v. S. C. R. R. Co., 3 Sou. Car. (N. s.) 1; S. C. 16 Am. Rep 681; Heenrich . Pullman, &c.,

wrong one.

Maier v. Ran

But where a a place and

Co., 20 Fed. Rep. 100. See Ochsen-
bein. Shapley, 85 N. Y. 214. A
servant ordered to go to a place and
kill a certain animal, killed the only
one he found but the
The master held liable.
dolph, 33 Kan. 340.
driver, ordered to go to
return by a certain way, goes to the
place and then, at the request and for
the convenience of another, goes four
miles further on, the master is not lia-
ble for an injury caused by the horses
at such further point. Stone v. Hill,
45 Conn 44.

making their negotiations, fixing the terms and agreeing upon the compensation that shall be paid to him, must have contemplated these as having an important bearing on their stipulations. As the servant then knows that he will be exposed to the incidental risk, "he must be supposed to have contracted that, as between himself and the master, he would run this risk."

1

Whether this reason would be sufficient for all cases, if it were a matter of indifference to the general public whether the servant should have redress or not, may be matter of doubt; but it is supplemented by another, which considers the case from the standpoint of public interest. That reason is this: that the opposite doctrine would be unwise, not only because it would subject employers to unreasonable and often ruinous responsibilities, thereby embarrassing all branches of business, but also because it "would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against the master for damages could possibly afford." The rule is *therefore, one of general public policy, and there are [*542] grounds of public interest which make it of high importance. In many employments the public are compelled to rely upon the caution and diligence of servants as the chief protection against accidents which may prove destructive of life or limb; and any rule of law which would give the servant a remedy against the master for any injury resulting to himself from such an accident, instead of compelling him to rely for his protection upon his own vigilance, must necessarily tend in the direction of an abatement of his vigilance, and in the same degree to increase the hazards to others. The case of carriers of persons is the most common and most forcible illustration of this remark. It is of the highest importance in that employment that every one

'ALDERSON, B., in Hutchinson v. Railway Co., 5 Exch. 343, 351.

ABINGER, Ch. B., in Priestly v. Fowler, 3 M. & W. 1, 6; BREESE, J., in Illinois Cent. R. R. Co. v. Cox, 21

Ill. 20, 26; Lawler . Androscoggin
R. R. Co., 62 Me., 463; S. C. 16 Am.
Rep. 492; Hanrathy . Nor. Cent.
R. R. Co., 46 Md. 280.