at the time acting as its employee by the authority or request of one of its regular employees;18 but the carrier is not liable for the negligent acts of a volunteer or intermeddler who attempts to render services without authority,19 unless the carrier or some employee charged with such a duty could reasonably have anticipated that a passenger would be subject to such an injury, or was at fault in some respect in failing to prevent it.20

Employees of others. Where a duty which the carrier owes to its passengers is involved, it cannot shift the obligation by delegating the performance of such duty to another, and, as respects the liability of the carrier for the proper performance of such duty, the employees of such other may be regarded as the employees of the carrier.21 Thus the carrier may be held liable as regards such duties for the negligent or wrongful acts of the employees of an independent contractor.22 So, where railroad companies are in the joint use and occupation of

of passengers, and has a certain amount of authority over them, and if, within the scope of his duty, he fails to take proper care for their safety, the carrier is liable. Newman v. Chicago, etc., R. Co., 154 Iowa 72, 134 NW 585. (2) A conductor, in the performance of those duties which the railroad company owes its passengers or those rightfully aboard the train, is the representative of the company, and in the observance of those duties must refrain from conduct which exposes a passenger or one rightfully aboard the train to peril. Missouri, etc., R. Co. v. Hibbitts, 49 Tex. Civ. A. 419, 109 SW 228.

[b] The conductor of a street car must control the operation of the car and enforce the rules of the company as far as they affect the transportation of passengers.

Mittleman

v. Philadelphia Rapid Transit Co., 221 Pa. 485, 70 A 828, 18 LRANS 503.

[c] Temporary conductor.-Where a carrier places on a train two conductors, or two persons intrusted with the usual functions of a conductor, as between a passenger dealing with one of them and the carrier he stands in the place of a conductor, whether he is such permanently or not. Atlanta, etc., R. Co. v. Haralson, 133 Ga. 231, 65 SE 437.

[d] A flagman at a railroad crossing used by a street railroad company is the agent of the latter, and it is liable for his negligence in signaling a motorman to cross. Augustus v. Chicago, etc., R. Co., 153 Mo. A. 572, 134 SW 22.

[e] Man taking down train signs. -Where a railroad company made the putting up and taking down of train destination signs a part of its business, the inference arose, in an action by an intending passenger who was injured by being struck with a sign while it was being taken down, that the man who took down the sign was an employee of the company. Oberndorf v. Philadelphia, etc.. R. Co., 53 Pa. Super. 74.

18. Ga.-Atlanta, etc., R. Co. v. Haralson, 133 Ga. 231, 65 SE 437.

Il-Tuller v. Talbot, 23 Ill. 357, 76 AmD 695.

Kan. Leavenworth Electric R. Co. v. Cusick, 60 Kan. 590, 57 P 519, 72 AmSR 374.

Mo.-Hedge v. St. Louis, etc., R. Co., 164 Mo. A. 291, 145 SW 115. Or. Lakin v. Oregon Pac. R. Co., 15 Or. 220, 15 P 641.

Wis.-Fick v. Chicago, etc., R. Co., 68 Wis. 469, 32 NW 527, 60 AmR 878. [a] Custom; employee off duty.If by custom among street railroad employees, known and assented to by the company, those who are on duty are in the habit of calling for and receiving assistance from those who are not at the time on duty, and

an employee off duty, thus called on, undertakes to render the assistance asked, he will be regarded as in the employ of the company for such service; and if he negligently abandons the work before completing it, whereby injuries to a passenger occur, the company will be liable. Leavenworth Electric R. Co. v. Cusick, 60 Kan. 590, 57 P 519, 72 AmSR

374.

[b] Long train; temporary conductor.-Where an excursion train stopping at frequent points is composed of so many coaches and is so crowded that the conductor cannot attend to his usual duties and authorizes another employee to take charge of a section thereof as conductor, as to a passenger dealing with such employee in connection with the duties so assigned him and in reliance on his being the conductor, he may be treated as such. Atlanta, etc., R. Co. v. Haralson, 133 Ga. 231, 65 SE 437.

[c] Stage driven by a passenger. -Where one of the passengers, at the request of the driver who was unwell, drove the stage, and accidents happened, the company was held liable to the persons injured thereby. "It was the duty of the proprietors of the stage line to furnish competent and careful drivers, and any neglect of that duty must render them liable for injuries sustained by passengers by reason of its omission. When Ward was permitted to drive the coach, to relieve the regularly employed driver that had been put in charge of the coach, he for the time being became their driver, and whether he undertook to drive at the request of the proprietors, their agents, or of the regular driver on the line, can make no difference. The driver was unwell when he left his station, and should have been relieved by the substitution of another competent driver, able to perform the duty. The proprietors, by themselves or their agents, have control of the horses and coaches, and when any one else is permitted to assume their control, such person is, for all purposes of a driver, their agent, and if incompetent, unskillful or careless, and injury results, the proprietors are liable for the damages to the same extent as if he were their regularly employed driver." Tuller V. Talbot, 23 II. 298, 303, 76 AmD 695.

19. Ala.-Alabama Great Southern R. Co. v. Pouncey, 7 Ala. A. 548, 61 S 601.

Kan.-Leavenworth Electric R. Co. v. Cusick, 60 Kan. 590, 57 P 519, 72 AmSR 374.

N. Y.-Mars V. Delaware, etc., Canal Co., 54 Hun 625, 8 NYS 107.

Tex.-Houston, etc.. R. Co. V. Bush, 104 Tex. 26, 133 SW 245, 32 LRANS 1201 [rev (Civ. A.) 123 SW 201].

Va.-Norfolk Bd. of Trade Bldg. Corp. v. Cralle, 109 Va. 246, 63 SE 995, 132 AmSR 917, 22 LRANS 297.

[a] Where an employee without authority starts an engine and thereby causes a collision injuring passengers, the carrier is not liable. Mars v. Delaware, etc., Canal Co., 54 Hun 625, 8 NYS 107.

20. Alabama Great Southern R. Co. v. Pouncey, 7 Ala. A. 548, 61 S 601; Houston, etc., R. Co. v. Bush, 104 Tex. 26, 133 SW 245, 32 LRANS 1201 [rev (Civ. A.) 123 SW 201].

21. Barrow SS. Co. v. Kane, 88 Fed. 197, 31 CCA 452; Louisville, etc., Ferry Co. v. Nolan, 135 Ind. 60, 34 NE 710.

[a] Reason for rule.-"The rule respondeat superior rests on the power which the responsible party has a right to exercise over the acts of his subordinates, and which, for the prevention of injuries to third persons, he is bound to exercise, and applies only to cases in which such power exists. In those undertakings in which this power, in whole or in part, may properly be devolved upon others, and has been so devolved by a contract which substitutes another in the place of the original principal, and delegates to him exclusively the control of the subordinate agents whom he may find it expedient to employ, the subordinate agents are his servants, and not the servants of the original principal; and the latter is not responsible for their negligent or wrongful acts. But the undertaking of a common carrier to a passenger is not of that character. His obligation to transport the passenger safely cannot be shifted from himself by delegation to an independent contractor; and it extends to all the agencies employed, and includes the duty of protecting the passenger from any injury caused by the act of any subordinate or third person engaged in any part of the service required by the contract of transportation." Barrow SS. Co. v. Kane, 88 Fed. 197, 198, 31 CCA 452.

22. Barrow SS. Co. v. Kane, 88 Fed. 197, 31 CCA 452.

Carrier or contractor liable see supra § 1313.

23. Kansas City Southern R. Co. v. Watson, 102 Ark. 499, 144 SW 922; Edgerton v. New York, etc., R. Co., 35 Barb. 389 [aff 39 N. Y. 227]; Gulf, etc.. R. Co. v. Shelton, 96 Tex. 301, 72 SW 165 [aff (Civ. A.) 70 SW 359]. Cross references:

Carrier permitting use of road or train by another see supra § 1315. Carrier using other road see supra § 1316.

Carriers using same station see supra § 1319.

Lessor or lessee see supra §§ 1317, 1318.

24. McLean v. Burbank, 11 Minn. 277, 12 Minn. 530; Ryland v. Peters, 1 Phila. 264.

trol of the trains and are engaged in the transportation of the passenger under contract with him, although he may be availing himself of the conveniences and additional accommodations of the sleeping car, such porters are to be deemed employees of the railroad company so far as the passenger is concerned.2

25

Postal clerks engaged in the mail service on railroads are not to be deemed employees of the railroad company so as to render the company liable for their negligence causing injury to a passenger,26 but it may be held liable for the conduct of such clerks in rendering the passenger platforms dangerous at stations.2

[ 1324] 2. General Rule of Liability.28 Although

Liability throughout see generally supra §§ 1259-1261.

Liability for injuries on line of connecting carrier see supra §§ 12591262.

25. U. S.-Pennsylvania Co. V.
Roy, 102 U. S. 451, 26 L. ed. 141.
Ala.-Louisville, etc., R. Co. V.
Church, 155 Ala. 329, 46 S 457, 130
AmSR 29 and note.

Iowa.-Gannon v. Chicago, etc., R.
Co., 141 Iowa 37, 117 NW 966.

La.-Williams v. Pullman Palace Car Co., 40 La. Ann. 417, 4 S 85, 8 AmSR 538.

N. Y.-Dwinelle v. New York Cent.. etc., R. Co., 120 N. Y. 117, 24 NE 319, 17 AmSR 611, 8 LRA 224; Thorpe v. New York Cent., etc., R. Co., 76 N. Y. 402, 32 AmR 325.

Oh.-Cleveland, etc., R. Co. v. Walrath, 38 Oh. St. 461, 43 AmR 433.

[a] The law will presume that a porter employed and assigned by the Pullman Company to control the interior of a sleeping car in which a passenger was riding exercised such control with the assent of the railroad company. Louisville, etc., R. Co. v. Church, 155 Ala. 329, 46 S 457, 130 AmSR 29.

Assault by porter see infra § 1326. Respective duties and liabilities of railroad company and sleeping car company see infra § 1546.

26. St. Louis, etc.. R. Co. v. Waggoner, 90 Ill. A. 556; Carpenter v. Boston, etc., R. Co., 97 N. Y. 494, 49 AmR 540.

27. See infra § 1341.

28. See also generally Agency §§ 513-552; Master and Servant [26 Cyc 1518 et seq].

Owner of motor vehicle in charge of chauffeur or servant see Motor Vehicles [28 Cyc 38].

31

Whitman, 79 Ala. 328; Louisville, etc., R. Co. v. Laney, (A.) 69 S 993; Orr v. Boockholdt, 10 Ala. A. 331, 65 S 430.

Ark.-Mayfield v. St. Louis, etc., R. Co., 97 Ark. 24, 133 SW 168, 32 LRANS 525.

Del. Whittington v. Philadelphia, etc., R. Co., 93 A 563.

Ga.-Gasway v. Atlantic, etc., R. Co., 58 Ga. 216.

Ill.-Chicago, etc., R. Co. v. Bryan, 90 Ill. 126; Loy v. The F. X. Aubury, 28 Ill. 412, 81 AmD 292; St. Louis, etc., R. Co. v. Dalby, 19 Ill. 353.

Ind. Citizens' St. R. Co. v. Willoeby, 134 Ind. 563, 33 NE 627; Grand Rapids, etc., R. Co. v. Ellison, 117 Ind. 234, 20 NE 135; Wabash R. Co. v. Savage, 110 Ind. 156, 9 NE 85; Pittsburgh, etc., R. Co. v. Theobald, 51 Ind. 246; Indianapolis, etc., R. Co. v. Anthony, 43 Ind. 183; Jeffersonville R. Co. v. Rogers, 38 Ind. 116, 10 AmR 103; Gillenwater v. Madison, etc., R. Co., 5 Ind. 339, 61 AmD 101; Baltimore, etc., R. Co. v. Davis, 44 Ind. A. 375. 89 NE 403.

V.

Iowa.-McKinley v. Chicago, etc., R. Co., 44 Iowa 314, 24 AmR 748. Kan.-Atchison, etc., R. Co. Henry, 55 Kan. 715, 41 P 952, 29 LRA 465; Southern Kansas R. Co. v. Hinsdale, 38 Kan. 507, 16 P 937.

Ky. Denker Transfer Co. v. Pugh, 162 Ky. 818, 173 SW 139; Louisville, etc., R. Co. v. Vincent, 96 SW 898, 29 KYL 1049.

La. Williams v. Pullman Palace Car Co., 40 La. Ann. 417, 4 S 85, 8 AmSR 538; Choppin v. New Orleans, etc., R. Co., 17 La. Ann. 19; Block v. Bannerman, 10 La. Ann. 1; Carmanty v. Mexican Gulf R. Co., 5 La. Ann. 703.

Md.-Baltimore, etc., R. Co. V. 29. See cases infra this note. Leapley, 65 Md. 571, 4 A 891; BaltiAnd see infra § 1325. more, etc., R. Co. v. Blocher, 27 Md. 277.

[a] In a few of the older decisions it has been held that a carrier of passengers is not in any case liable for the willful and malicious acts of its servants, but these cases do not accord with the great weight of authority. Sunday v. Gordon, 23 F. Cas. No. 13,616, 1 Blatchf. & H. 569; Turner v. North Beach, etc., R. Co., 34 Cal. 594; Crocker V. New London, etc.. R. Co., 24 Conn. 249; McKeon v. Citizens' R. Co., 42 Mo. 79, 43 Mo. 405; Hibbard V. New York, etc., R. Co., 15 N. Y. 455.

30. Schmidt V. New Orleans R. Co., 116 La. 311, 40 S 714, 7 LRANS 162.

Liability of corporations for torts of agents or servants see generally Corporations [10 Cyc 1203 et seq]. 31. See supra § 1308.

32. U. S.-New Jersey SteamBoat Co. v. Brockett, 121 U. S. 637, 7 SCt 1039, 30 L. ed. 1049; Philadelphia, etc., R. Co. v. Derby, 14 How. 468, 14 L. ed. 502; Stockton v. Bishop, 4 How. 155, 11 L. ed. 918; Kansas City Southern R. Co. v. Willsie, 224 Fed. 908, 140 CCA 352; Gallena v. Hot Springs R. Co., 13 Fed. 116, 4 McCrary 371; McGuire v. The Golden Gate, 16 F. Cas. No. 8,815, McAll. 104.

Ala.-Louisville, etc., R. Co. V.

Mass.-Com. v. Brockton St. R. Co., 143 Mass. 501, 10 NE 506; Krulevitz v. Eastern R. Co., 140 Mass. 573, 5 NE 500, 143 Mass. 228, 9 NE 613; Coleman v. New York, etc., R. Co., 106 Mass. 160; Ramsden v. Boston, etc., R. Co., 104 Mass. 117, 6 AmR 200.

Minn.-Rosted v. Great Northern R. Co., 76 Minn. 123, 78 NW 971; Cain v. Minneapolis, etc., R. Co., 39 Minn. 297, 39 NW 635.

Mo.-Ephland v. Missouri Pac. R. Co., 137 Mo. 187, 37 SW 820, 38 SW 926, 59 AmSR 498, 35 LRA 107 [aff 71 Mo. A. 597]; Brown v. Hannibal, etc., R. Co., 66 Mo. 588; Travers v. Kansas Pac. R. Co., 63 Mo. 421; Perkins v. Missouri, etc.. R. Co., 55 Mo. 201; Richmond v. Missouri Pac. R. Co., 162 Mo. A. 422, 144 SW 168; Grayson v. St. Louis Transit Co., 100 Mo. A. 60, 71 SW 730; McGinnis v. Missouri Pac. R. Co., 21 Mo. A. 399.

Nev. Quigley v. Central Pac. R. Co., 11 Nev. 350, 21 AmR 757.

Ń. J.-Haver v. Central R. Co., 62 N. J. L. 282, 41 A 916, 72 AmSR 647, 43 LRA 84.

N. Y.-Drew v. Sixth Ave. R. Co., 26 N. Y. 49; Weed v. Panama R. Co., 17 N. Y. 362, 72 AmD 474; Drew v.

Sixth Ave. R. Co., 1 Abb. Dec. 556; Connell v. New York, etc., R. Co., 134 App. Div. 231, 118 NYS 944; Franklin v. Third Ave. R. Co., 52 App. Div. 512, 65 NYS 434; Flynn v. Central Park, etc., R. Co., 49 N. Y. Super. 81.

Oh.-Passenger R. Co. v. Young, 21 Oh. St. 518, 8 AmR 78; Atlantic, etc., R. Co. v. Dunn, 19 Oh. St. 162, 2 AmR 382; Pittsburg, etc., R. Co. v. Slusser, 19 Oh. St. 157.

Pa.-Schimpf v. Harris, 185 Pa. 46, 39 A 820; Pennsylvania R. Co. v. Vandiver, 42 Pa. 365, 82 AmD 520.

S. C.-Schockley v. Southern R. Co., 93 S. C. 533, 77 SE 221.

Tex.-Denison, etc., R. Co. v. Carter, 98 Tex. 196, 82 SW 782, 107 Am SR 626 [rev (Civ. A.) 79 SW 320]; Galveston, etc., R. Co. v. Donahoe, 56 Tex. 162; Texas, etc., R. Co. v. Boren, (Civ. A.) 149 SW 295: Missouri, etc., R. Co. v. Gerren, 57 Tex. Civ. A. 34, 121 SW 905; Gulf, etc., R. Co. v. Luther, 40 Tex. Civ. A. 517, 90 SW 44; Claiborne v. Missouri, etc., R. Co., 21 Tex. Civ. A. 648, 53 SW 837, 57 SW 336.

W. Va.-Killmyer V. Wheeling Tract. Co., 72 W. Va. 148, 77 SE 908, 48 LRANS 683.

Wis. Fick v. Chicago, etc., R. Co., 68 Wis. 469, 32 NW 527, 60 AmR 878 and note; Bass v. Chicago, etc., R. Co., 36 Wis. 450, 17 AmR 495, 39 Wis. 636, 42 Wis. 654, 24 AmR 437: Milwaukee, etc., R. Co. v. Finney, 10 Wis. 388.

Man.-Hill v. Winnipeg Electric R. Co., 21 Man. 442.

Ont. Decue v. Wabash R. Co., 3 OntWR 102.

[a] The failure to discharge a legal duty owed by a railroad employee to a passenger is negligence. Texas Cent. R. Co. v. Cameron, (Tex. Civ. A.) 149 SW 709.

[b] Assigning passenger to coach. -A conductor or other servant in performing the statutory duty of assigning passengers to the proper coaches acts as the agent of the carrier, and it is liable for his misconduct in doing so. Denker Transfer Co. v. Pugh, 162 Ky. 818, 173 SW 139; Louisville, etc., R. Co. v. Ritchel, 148 Ky. 701, 147 SW 411, 41 LRANS 958 and note, AnnCas1913E 517.

[c] Conductor falling against passenger. The conduct of the conductor of a street car while in the car is in a sense official conduct for which the street railroad is responsible to a passenger injured thereby if such conduct, as in carelessly falling against the passenger and injuring him, is negligence, regardless of whether the conductor is in general competent or incompetent. whether or not the street railroad might reasonably know of his incompetency. Spinney v. Boston El. R. Co., 188 Mass. 30, 73 NE 1021.

or

[d] Where a motorman and conductor exchange places and an accident occurs through the negligent operation of the car, the carrier is liable, although the conductor was not acting within the scope of his employment, on the ground of the

34

35

carriage,33 or by implication from the situation of the parties, although such acts are in violation of rules of the carrier," or contrary to its orders.36 Nor can the carrier escape this liability by failing to give its employees full instructions or by restricting their authority so as to disable them from properly performing their duties.37 But ordinarily the carrier is not liable if the acts are outside of the scope or course of the employment of the agent or servant; 38 nor is it liable where the injuries sustained are not caused by any negligent or wrongful act on the part of its employees.39

Contagious disease. It has been held that a passenger who contracts a contagious disease from a

motorman's negligence in abandoning the control of the car to the conductor. Hill v. Winnipeg Electric R. Co.. 21 Man. 442.

[e] Leaving team unattended.The fact that an injury to a passenger in a livery carriage arose from the driver's negligent act in leaving the carriage unattended to go on an independent service did not relieve his master from liability. John Radel Co. v. Borches, 147 Ky. 506. 145 SW 155, 39 LRANS 227.

33. Orr v. Boockholdt, 10 Ala. A. 331, 65 S 430.

Limitation of or exemption from liability see generally supra §§ 11511164.

34. Orr v. Boockholdt, 10 Ala. A. 331, 65 S 430.

35. Louisville, etc., R. Co. V. Whitman, 79 Ala. 328; Foley v. Boston, etc., St. R. Co., 198 Mass. 532, 84 NE 846; Dreyfus v. St. Louis, etc., R. Co., 124 Mo. A. 585, 102 SW 53. See also cases supra note 32.

[a] Failure to read rules.-The fact that a motorman did not have time to read the rules of the company, where he had been in its service nearly two weeks after having been instructed for twelve days, is no excuse. Foley v. Boston, etc., St. R. Co., 198 Mass. 532, 84 NE 846.

36. Philadelphia, etc., R. Co. V. Derby, 14 How. (U. S.) 468, 14 L. ed. 502; Heenrich v. Pullman Palace-Car Co., 20 Fed. 100; Schmidt v. New Orleans R. Co., 116 La. 311, 40 S 714, 7 LRANS 162. See also cases supra note 32.

37. Schmidt v. New Orleans R. Co., 116 La. 311, 40 S 714, 7 LRANS 162.

38. U. S.-Lezinsky v. Metropolitan St. R. Co., 88 Fed. 437, 31 CCA 573.

Ala. Alabama Great Southern R. Co. v. Godfrey, 156 Ala. 202, 47 S 185, 130 AmSR 76; Goodloe v. Memphis, etc., R. Co., 107 Ala. 233, 18 S 166, 54 AmSR 67, 29 LRA 729.

Ark. Chicago, etc., R. Co. v. Nelson, 87 Ark. 524, 113 SW 44.

Fla.-Wright v. Georgia Southern, etc., R. Co., 66 Fla. 510, 63 S 909, LRA1916E 1134.

Ill.-Chicago, etc., R. Co. v. Koehler, 47 Ill. A. 147.

Ind. Cincinnati, etc., R. Co. V. Carper, 112 Ind. 26, 13 NE 122, 14 NE 352, 2 AmSR 144.

Mass.-Langley v. Boston El. R. Co., 223 Mass. 492, 112 NE 79; McGilvray v. West End St. R. Co., 164 Mass. 122, 41 NE 116.

Miss.-Louisville, etc., R. Co. V. Douglass, 69 Miss. 723, 11 S 933, 30 AmSR 582.

N. Y.-Isaacs v. Third Ave. R. Co., 47 N. Y. 122, 7 AmR 418; Molloy v. New York Cent., etc., R. Co., 10 Daly 453.

N. C.-Owens v. Wilmington, etc., R. Co., 126 N. C. 139, 35 SE 259, 78 AmSR 642.

Oh. O'Neil v. Baltimore, etc., R. Co., 2 Oh. Cir. Ct. 504, 1 Oh. Cir. Dec. 610.

Va.-Washington, etc., R. Co. V. Carter, 117 Va. 424, 85 SE 482.

Wash.-Marks v. Alaska SS. Co., 71 Wash. 167, 127 P 1101.

[a] "The general rule is that a carrier can be held liable for the

ticket agent of a carrier while purchasing his ticket cannot recover damages if the carrier did not know or have any reason to know that the agent had such disease; 40 but the contrary has been held where the agent knew that he was infected with such a disease.41

The owner of a passenger elevator is liable for injuries to a passenger which result from the negligent or wrongful act of an employee while acting as such and within the scope of his employment;42 but not where the employee is acting outside the scope of his employment," or where the negligent or wrongful act is done by one who has no duty to perform in operating the elevator.44

43

moved up above the level of the floor for some feet, and without knowing of the approach of plaintiff, a customer, she instructed one of the bundle boys to shut the door, the evidence in an action by plaintiff for injuries sustained owing to her having stepped into the shaft warranted a finding that the act of the boy in pulling down the elevator before shutting the door was within the apparent scope of his authority in obeying the cashier's order. H. B. Phillips Co. v. Pruitt, 82 SW 628, 26 KyL 831, 83 SW 114, 26 KyL 1105.

[b] Owner of elevator held not operator.-Where an elevator manufacturing company constructs an elevator in the building of a prospective purchaser to be operated by

1335.

under the direct supervision of the company until such time as he shall be satisfied that it is in thorough running order, and while it is being so operated owing to a defect in its mechanism it falls, severely injuring one of the prospective purchaser's employees, the placing of the elevator in the building is not a breach of the common-law duty prohibiting an act the natural and probable consequence of which will be dangerous to the lives of other people; and the company under the facts recited not being the operator, there is no other ground on which it can be held liable. Zieman v. Kieckhefer El. Mfg. Co., 90 Wis. 497, 63 NW 1021.

43. Sweeden V. Atkinson Impr. Co., 93 Ark. 397, 125 SW 439, 27 LRA NS 124.

[a] Thus where a passenger elevator operator invites a minor into the elevator as his guest for the purpose of taking her for a ride, as she has no business in the building it is an act without the scope of the servant's employment, and the master is not liable for injuries to the child from the operator's negligence. Sweeden v. Atkinson Impr. Co.. 93 Ark. 397, 125 SW 439, 27 LRANS 124.

[b] Dangerous instrumentality.A master is not liable for injuries to a child by the negligence of a passenger elevator operator who was acting outside the scope of his employment in letting her ride thereon, on the theory that a master is responsible for the acts of his servant because the master had placed him in charge of a dangerous instrumentality, where the injury resulted from the negligent act of the operator, and not from the character of the elevator itself. Sweeden v. Atkinson Impr. Co., 93 Ark. 397, 125 SW 439, 27 LRANS 124.

44. Gibson v. International Trust Co., 177 Mass. 100, 58 NE 278, 52 LRA 928; Norfolk Bd. of Trade Bldg. Corp. v. Cralle, 109 Va. 246, 63 SE 995, 132 AmSR 917, 22 LRANS 297.

[a] The janitor of a building who while riding in the elevator moves the elevator boy's stool without the latter's knowledge does not act as the servant or agent of the owner of the building in so doing, so as to make it liable for his negligence therein to a passenger injured by the starting of the elevator, where the

[1325] 3. Distinct Doctrine as to Carriers. It has been held that unless a willful or malicious act is done within the scope of the employment of the employees of the carrier, no recovery can be had for an injury resulting therefrom.* But many of the latest and best considered cases hold that the rule that the principal or master is not liable for injuries resulting from the willful and malicious acts of his agent or servant, not done within the scope of his employment," ,46 is not applicable where the injury is inflicted on a passenger by a carrier's

boy losing his balance in attempting to sit down reaches for something to support him and takes hold of the lever. Gibson v. International Trust Co., 177 Mass. 100, 58 NE 278, 52 LRA 928.

[b] Stranger. Where a hallboy not charged with any duty of operating an elevator or of seeing that it is operated requests another boy not in defendant's employ to take plaintiff to one of the upper floors, and while doing so plaintiff is injured by the boy's negligent operation of the elevator, the relation of master and servant does not exist between defendant and the boy running the elevator, hence defendant is not liable for his negligence, Norfolk Bd. of Trade Bldg. Corp. v. Cralle, 109 Va. 246, 63 SE 995, 132 AmSR 917, 22 LRANS 297.

45. Cunningham v. Seattle Electric R., etc., Co., 3 Wash. 471, 28 P 745; Emerson v. Niagara Nav. Co., 2 Ont. 528; Moore v. Metropolitan R. Co., L. R. 8 Q. B. 36; Allen v. London, etc., R. Co., L. R. 6 Q. B. 65; Poulton v. London, etc., R. Co., L. R. 2 Q. B. 534; Bayley v. Manchester, etc., R. Co., L. R. 8 C. P. 148 [aff L. R. 7 C. P. 415]; Edwards v. London, etc., R. Co., L. R. 5 C. P. 445; Goff v. Great Northern R. Co., 3 E. & E. 672, 107 ECL 672, 121 Reprint 594; Roe v. Birkenhead, etc., R. Co., 7 Exch. 36, 155 Reprint 845; Seymour v. Greenwood, 7 H. & N. 355, 158 Reprint 511 [aff 6 H. & N. 359, 158 Reprint 148]; Lowe v. Great Northern R. Co., 62 L. J. Q. B. 524.

46. See Agency § 537; Master and Servant [26 Cyc 1527].

47. Birmingham R., etc., Co. V. Baird, 130 Ala. 334, 30 S 456, 89 Am SR 43, 54 LRA 752; Johnson v. Detroit, etc., R. Co., 130 Mich. 453, 90 NW 274; Shelby v. Metropolitan St. R. Co., 141 Mo. A. 514, 125 SW 1189; Houston, etc., R. Co. v. Washington, (Tex. Civ. A.) 30 SW 719. See also cases infra note 48.

"It [a carrier of passengers] cannot invoke the rule that the master is not liable for an injury resulting from the wilful and malicious acts of his agent, not done in the course of his employment. That rule does not apply when the injury is inflicted upon a passenger by the carrier's servant.' Houston, etc., R. Co. V. Washington, (Tex. Civ. A.) 30 SW 719, 729.

48. U. S.-Pendleton v. Kinsley, 19 F. Cas. No. 10.922, 3 Cliff. 416.

Ala.-Birmingham R.. etc., Co. v. Baird, 130 Ala. 334, 30 S 456, 89 Am SR 43, 54 LRA 752.

Fla.-Wright v. Georgia Southern, etc., R. Co., 66 Fla. 510, 63 S 909, LRA1916E 1134.

Ill.-Wabash, etc., R. Co. v. Rector, 104 Ill. 296; Coggins v. Chicago, etc., R. Co., 18 Ill. A. 620; Chicago, etc., R. Co. v. Barrett. 16 Ill. A. 17. Ind.-Louisville, etc.. R. Co. v. Kelly, 92 Ind. 371, 47 AmR 149; Chicago, etc., R. Co. v. Fisher, (A.) 110 NE 240; Baltimore, etc., R. Co. V. Davis, 44 Ind. A. 375, 89 NE 403. Iowa.-Ray v. Chicago, etc., R. Co., 163 Iowa 430, 144 NW 1018.

Ky-Louisville R. Co. v. Kupper. 118 SW 266; Winnegar v. Central Pass. R. Co., 85 Ky. 547, 4 SW 237; Sherley v. Billings, 8 Bush 147, 8 AmR 451.

Me.--Hanson v. European, etc., R.

Co.. 62 Me. 84, 16 AmR 404; Goddard v. Grand Trunk R. Co., 57 Me. 202, 2 AmR 39.

Mass.-Thayer v. Old Colony St. R. Co., 214 Mass. 234, 101 NE 368, 44 LRANS 1125, AnnCas1914 B 865; Hayne v. Union St. R. Co., 189 Mass. 551, 76 NE 219, 109 AmSR 655, 3 LRANS 605 and note; Bryant V. Rich, 106 Mass. 180, 3 AmR 311.

Mich.-Johnson v. Detroit, etc., Co., 130 Mich. 453, 90 NW 274. Minn.-Conger v. St. Paul, etc., Co., 45 Minn. 207, 47 NW 788.

R.

R.

V.

Miss. St. Louis, etc., R. Co. Sanderson, 99 Miss. 148, 54 S 885, 46 LRANS 352.

Mo.-Ephland v. Missouri Pac. R. Co., 137 Mo. 187, 37 SW 820, 38 SW 926, 59 AmSR 498, 35 LRA 107 [aff 71 Mo. A. 597]; Malecek v. Tower Grove, etc.. R. Co., 57 Mo. 17; Eads v. Metropolitan R. Co., 43 Mo. A. 536; Randolph v. Hannibal, etc., R. Co., 18 Mo. A. 609.

Mont.-Taillon v. Mears, 29 Mont. 161, 74 P 421, 1 AnnCas 613 and note. Nev. Quigley v. Central Pac. R. Co., 11 Nev. 350, 21 AmR 757.

N. Y.-Palmeri V. Manhattan R. Co., 133 N. Y. 261, 30 NE 1001, 28 AmSR 632, 16 LRA 136 [aff 60 Hun 579, 14 NÝS 468, and dist Mulligan v. New York, etc., R. Co., 129 N. Y. 506, 29 NE 952, 26 AmSR 539, 14 LRA 7911; Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588, 43 AmR 185 [dist Isaacs v. Third Ave. R. Co., 47 N. Y. 122, 7 AmR 418]; Fisher v. Metropolitan El. R. Co., 34 Hun 433; Lyons v. Broadway, etc., R. Co., 10 NYS 237.

N. C.-White v. Norfolk, etc., R. Co., 115 N. C. 631, 20 SE 191, 44 AmSR 489.

Tenn.-Springer

Transp. Co. V. Smith, 16 Lea 498, 1 SW 280.

Tex.-Dillingham V. Russell, 73 Tex. 47, 11 SW 139, 15 AmSR 753, 3 LRA 634 and note; International, etc., R. Co. v. Kentle, 2 Tex. A. Civ. Cas. 303.

Wash.-Marks v. Alaska SS. Co., 71 Wash. 167, 127 P 1101.

W. Va.-Layne v. Chesapeake, etc., R. Co., 66 W. Va. 607, 67 SE 1103; Teel v. Coal, etc., R. Co., 66 W. Va. 315, 66 SE 470; Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 SE 243, 29 AmSR 827, 14 LRA 798; Ricketts v. Chesapeake, etc., R. Co., 33 W. Va. 433, 10 SE 801, 25 AmSR 901, 7 LRA 354.

Wis.-Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 NW 507, 45 LRANS 314, AnnCas1913E 823.

[a] Reasons for rule.-(1) "Passengers riding on railroad trains are peculiarly under the control of the carrier's agents and are practically helpless in guarding against intrusions on their part, and so the law is settled that a railroad company is responsible for any acts of its servants on the train which tend to injure or humiliate the passenger." Ray v. Chicago, etc., R. Co., 163 Iowa 430, 433, 144 NW 1018. (2) The duty of a carrier to carry passengers safely and expeditiously, and to conserve by every reasonable means the convenience, comfort, and peace of the passengers, rests on its agents who must protect each passenger from bodily discomfort, insult, indignities, and personal violence, and although the act of an agent breaching such duty is one which bears no

48

relation to the duty of the carrier, and is not connected as an incident to the discharge of any duty, the carrier is liable because of a violation of the duty which it owes to passengers. Baltimore, etc., R. Co. v. Davis, 44 Ind. A. 375, 89 NE 403.

[b] Causing passenger to jump from train.-(1) A railroad company while running a mixed train is answerable for damages resulting to a passenger from jumping from the train on account of the negligent and terrifying acts of one of its brakemen made in the car in which he was being carried, and from which he might reasonably infer that a wreck of the train was imminent, although such brakeman had no express duty to perform in or about such car, or in the direction of passengers, and no real danger was imminent. Ephland v. Missouri Pac. R. Co., 137 Mo. 187, 37 SW 820, 38 SW 926, 59 AmSR 498, 35 LRA 107 [aff 71 Mo. A. 597]. (2) A brakeman whose duty it is to assist passengers on and off the car and to call stations and the like is acting within the scope of his agency in directing a passenger who is being carried past his station to jump from the train, and the carrier is bound by his direction. Owens v. Wabash R. Co., 84 Mo. A. 143.

49. Hayne v. Union St. R. Co., 189 Mass. 551, 76 NE 219, 109 AmSR 655, 3 LRANS 605; International, etc., R. Co. v. Lane, (Tex. Civ. A.) 127 SW 1066; St. Louis Southwestern R. Co. v. Franklin, (Tex. Civ. A.) 44 SW 701.

[a] "The reason for the rule applies as well when the servant is employed upon another car as when he is working on the car upon which the injury occurs. If one of the reasons for the liability is that the servant, through his relation to his master, owes a duty to protect the passenger from injuries by others, and a fortiori from injuries by himself, this duty, so far as it relates to the last branch of the obligation, is not confined to servants the nature of whose service requires them to give personal attention to the passenger in reference to possible injuries from others, but it includes those employed in the general business of transportation, and involves a duty to refrain from doing injury to any of the master's passengers, whether in the special charge of the servant or not. It would be too strict and narrow a rule to hold that this liability of the master extends only to injuries by servants especially charged with the duty of protecting passengers from injury." Hayne v. Union St. R. Co., 189 Mass. 551, 553, 76 NE 219, 109 AmSR 655, 3 LRANS 605.

[b] Illustrations.—(1) Where the conductor of one car in sport threw a dead hen at the motorman of the car on which plaintiff was riding. and the hen missed the motorman, struck the window of the car near where plaintiff was sitting, and injured her, the fact that the conductor was a member of the crew of another car than that in which plaintiff was riding did not exempt defendant from liability for such injuries. Hayne v. Union Št. R. Co., 189 Mass. 551. 76 NE 219, 109 AmSR 655. 3 LRANS 605. (2) It is immaterial

20 SE 191, 44 AmSR 489.

what position in the railroad company's employ a servant holds to whom a passenger reports the condition of the door of a car which subsequently injures the passenger, where such servant is superintending the movement of the cars, as the railroad company will be liable for his negligence no matter what position he holds in its employ. Inter-portation. They necessarily submit national, etc., R. Co. v. Lane, (Tex. Civ. A.) 127 SW 1066.

50. U. S.-Pendleton v. Kinsley, 19 F. Cas. No. 10,922, 3 Cliff. 416.

Ala.-Nashville, etc., R. Co. V. Crosby, 183 Ala. 237, 62 S 889: Culberson v. Empire Coal Co., 156 Ala. 416, 47 S 237.

Fla.-Wright v. Georgia Southern, etc., R Co., 66 Fla. 510, 63 S 909, LRA1916E 1134; Pelot v. Atlantic Coast Line R. Co., 60 Fla. 159, 53 S 937.

Ill. Chicago, etc., R. Co. v. Barrett, 16 Ill. A. 17.

Ind.-Louisville, etc., R. Co. v. Kelly, 92 Ind. 371, 47 AmR 149; Baltimore, etc., R. Co. v. Davis, 44 Ind. A. 375, 89 NE 403.

Iowa.-Ray v. Chicago, etc., R. Co., 163 Iowa 430, 144 NW 1018.

La.-Alexander v. New Orleans R., etc., Co., 129 La. 959, 57 S 283. Mass.-Thayer v. Old Colony St. R. Co., 214 Mass. 234, 101 NE 368, 44 LRANS 1125, AnnCas1914B 865. Mo.-Farber v. Missouri Pac. R. Co., 116 Mo. 81, 22 SW 631, 20 LRA 350.

N. Y.-Brewster v. Interborough Rapid Transit Co., 68 Misc. 348, 123 NYS 992.

N. C.-White v. Norfolk, etc., R. Co., 115 N. C. 631, 20 SE 191, 44 AmSR 489.

Tex.-Texas Midland R. Co. V. Dean, 98 Tex. 517, 85 SW 1135, 70 LRA 943 [rev (Civ. A.) 82 SW 524].

Wash.-Blomsness v. Puget Sound Electric R. Co., 47 Wash. 620, 92 P 414, 17 LRANS 763.

W. Va.-Layne v. Chesapeake, etc., R. Co., 66 W. Va. 607, 67 SE 1103. Wis. Craker v. Chicago, etc., R. Co., 36 Wis. 657, 17 AmR 504.

"A common carrier of passengers impliedly agrees to exercíse the utmost care and diligence, consistent with the proper management of his business, to protect his passengers from injury through the misconduct of other persons, while he is performing his contract for their transthemselves in a large degree to his care and control, and he undertakes to provide for their safety in all those particulars which ought to be under his direction and management. Among these, to a certain extent, are the kind of persons permitted to approach the passengers on the carrier's premises. and the rules and regulations which govern the conduct of the carrier's servants and others, while the contract for carriage is being performed. While the carrier does not guarantee perfection in these particulars, he is under an obligation of implied contract and consequent legal duty, to use a very high degree of care to prevent injuries that might be caused by the negligence or willful misconduct of others. This rule prevails generally in the American courts." Hayne v. Union St. R. Co., 189 Mass. 551. 552, 76 NE 219, 109 AmSR 655, 3 LRANS 605.

[a] "The inquiry is, not whether the servant acted as the carrier's agent in inflicting the injury but whether the master has broken his contract for the safe carriage of the passenger." Layne V. Chesapeake,

etc., R. Co., 66 W. Va. 607, 618, 67 SE 1103.

[b] Absurd results of contrary rule.-"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. By such a rule a stage company who should place a lady passenger under the protection of its driver, to be carried over its route, would be liable if, by his unskillful driving, he upset the coach and injured her; but if, taking advantage of his opportunity, he should assault and rob her, the carrier would go scot free. If the porter of a sleeping car, employed to guard the car while the passengers sleep, should himself fall asleep or, abandoning his post, allow a pickpocket to enter and rob the passengers, the company would be liable; but if the guardian should himself turn pickpocket, and rifle the pockets of the passengers, the company would not be responsible for his acts." Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588, 592, 43 AmR 185.

See also cases supra note 48. "As between the carrier and its passengers the contract of carriage imposes upon the carrier the duty, not only to carry safely and expeditiously between the termini of the road expressed in the contract, but also to conserve by every reasonable means their convenience, comfort, and peace throughout the journey. And the same duty is of course upon the carrier's agents. They are under a duty to protect each passenger from bodily discomfort, from insult, from indignities, and personal violence from whatever source. This is true although the act is one which bears no relation to the duty of car- [c] Particular act unauthorized. rier, and is not connected as an inci- -A carrier is responsible for indent to the discharge of any duty. juries willfully or carelessly inIn such case the carrier is liable flicted on passengers by servants because of violation of duty it owes engaged in the performance of duties to passengers, and not that the act within the general scope of their is incident to the duty and scope employment, whether the particular of employment. It is not applicable act was or was not authorized by to such acts.'" Baltimore, etc., R. the master. The question in such Co. v. Davis, 44 Ind. A. 375, 89 NE cases is whether the servant was, 403. 404. To same effect White v. when he inflicted the injury, acting Norfolk, etc., R. Co., 115 N. C. 631, within the line of his duties, and

not whether the particular act was authorized. Louisville, etc., R. Co. v. Kelly, 92 Ind. 371, 47 AmSR 149.

[d] Passengers do not contract merely for room and transportation from one place to another, but for good treatment and against personal rudeness and want of interference with their persons, either by the carrier or its agents employed in the management of the conveyance; and whatever may be the motive which incites a carrier's servant to commit an unlawful or improper act toward a passenger during the existence of the relation of carrier and passenger, and regardless of whether the wrong is committed in the execution of the servant's employment. the carrier is liable for the act and its natural and legit!mate consequences. Pelot v. Atlantic Coast Line R. Co., 60 Fla. 159, 53 S 937. 51.

52.

See supra § 1302.

U. S.-Pennsylvania R. Co. v. McCaffrey, 149 Fed. 404, 79 CCA 224. Ark. St. Louis, etc., R. Co. v. Tukey, 119 Ark. 28, 175 SW 403, LRA 1915E 320; Moore v. Louisiana, etc., R. Co.. 99 Ark. 233, 137 SW 826, 34 LRANS 299; St. Louis, etc., R. Co. v. Dowgiallo, 82 Ark. 289, 101 SW 412.

Ill-McMahon v. Chicago City R. Co., 143 Ill. A. 608 [aff 239 Ill. 334, 88 NE 223]; Illinois Southern R. Co. v. Hubbard, 106 Ill. A. 462; Chicago, etc., R. Co. v. Barrett, 16 Ill. A. 17. Ind.-Chicago, etc., R. Co. V. Fisher, (A.) 110 NE 240. Ky.-Chesapeake, etc., R. Co. V. Francisco. 149 Ky. 307, 148 SW 46, 42 LRANS 83.

Mass.-Hayne v. Union St. R. Co., 189 Mass. 551, 76 NE 219, 109 AmSR 655, 3 LRANS 605.

Mo.-Van Hoeffen V. Columbia Taxicab Co., 179 Mo. A. 591, 162 SW 694; McQuerry v. Metropolitan St. R. Co., 117 Mo. A. 255, 92 SW 912.

N. Y.-Zeccardi v. Yonkers R. Co., 190 N. Y. 389, 83 NE 31, 17 LRANS 770 [rev 113 App. Div. 649, 99 NYS 936]; Miller v. Brooklyn Heights R. Co., 124 App. Div. 537, 108 NYS 960; Baumstein v. New York City R. Co., 56 Misc. 498, 107 NYS 23.

W. Va.-Layne v. Chesapeake, etc., R. Co., 66 W. Va. 607, 67 SE 1103.

Wis.-Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 NW 507, 45 LRANS 314, AnnCas1913E 823.

53. Palmer v. Winston-Salem R., etc., Co., 131 N. C. 250, 42 SE 604; Missouri, etc., R. Co. v. Pope, (Tex. Civ. A.) 149 SW 1185.

Assaults or personal violence after relation terminated see infra § 1326. 54. Cross references: Assaults in ejecting passenger who has forfeited his right to carriage see supra § 1194. Indecent assaults on females see infra § 1328.

55. See supra § 1325.

56. U. S.-New Jersey Steamboat Co. v. Brockett, 121 U. Š. 637, 7 SCt 1039, 30 L. ed. 1049; Kansas City Southern R. Co. v. Willsie, 224 Fed. 908, 140 CCA 352; Pendleton v. Kinsley. 19 F. Cas. No. 10,922, 3 Cliff. 416. Ala. Southern R. Co. v. Hanby, 183 Ala. 255, 62 S 871; Nashville, etc., R. Co. v. Crosby, 183 Ala. 237, 62 S 889; Alabama City, etc., R. Co.