Daniel v. Petersburg Railroad

When the plaintiff’s intestate purchased his ticket at Petersburg and had his baggage checked to Garysburg, the contract for their safe delivery at the latter place was complete. The passenger’s exit from the train at Bellfield discharged the contract as to him as a passenger, and we have only to consider the duties and liabilities of the parties as to the baggage, consisting of two trunks. The contract as to the baggage, however, continued to the point of delivery and until the delivery was made.

Common carriers are insurers, subject to a few reasonable exceptions. They are held to exercise the greatest practicable care, the highest degree of prudence,, and the utmost human skill and foresight which has been demonstrated by experience to be practicable. They are so held opon the grounds of public policy, reason and safety to their pat*603rons. Tbe exceptions are tbe act of God and tbe public enemy. If these be the proximate cause, and without any neglect on tbe part of tbe carrier, then be is not liable in damages. BLe is, against all perils, bound to do his utmost to protect against loss or damage and must use.efforts proportioned to the emergency to ward it off. If he fails to do so be remains liable, although the act of God may have been the immediate cause of the mischief.

Passengers are entitled to protection from the carrier’s agent against assaults or insults from their own employees, from other passengers or persons on the train whether such persons are rightfully on the train or not. The reason of the above rigid rules is that the passenger and his baggage, during the transit, are in the possession of and under the immediate supervision and control of the carrier’s agents, such as the conductor and baggage master, and hence the difference in degree of the liability of the defendant, as a carrier and as a warehouseman. We have not undertaken to cite the authors and decisions on the above questions. They are numerous and are collected in 16 Am. & Eng. Enc. of Law, on page 387.

The contract was to deliver the baggage at the terminal point and it continues until the delivery is made. The transfer of the baggage from the train to the warehouse did not terminate the contract, but affected only the degree of care required in the two positions. The reason for the strict rule to be observed by the carrier as such, already pointed out, does not, in the nature of the circumstances, apply to him as a warehouseman, as the baggage could not be at all times under his immediate observation. In the latter capacity the defendant was only required to exercise ordinary care whilst the goods remained in his custody. Example: In Neal v. Railroad, 8 Jones, 482, it was held that goods in an ordinary wooden house *604at the station, fastened with iron locks and bars, the agent residing 200 yards from the warehouse, was ordinary care, and the railroad was not liable for the loss of the goods by theft. If the passenger does not claim his baggage within, a reasonable time after arrival at its destination, the carrier becomes a mere bailee. Under this modified obligation of bailee or warehouseman, he is bound to exercise ordinary care in keeping the baggage until called for or disposed of in some legal way. This modified obligation of the carrier is not an independent one, arising from the accidental circumstance of the baggage being left on his hands, but is imposed by the contract of carriage, and rests upon the carrier with whom the contract was made. It is not suggested, however, that the trunks were not properly cared for in this case. The defendant was not a gratuitous bailee, as he had the right to charge for storage and did charge and collect it.

On application the plaintiff’s intestate had received one trunk when he was informed of the storage charge (the other trunk not being yet delivered) when he became angry and, whilst the agent was writing and delivering the receipt and receiving the money, he severely abused the agent in his office, and, receiving his receipt and change, started out of the office and was about the door whe.n the agent picked up his gun and shot him in the back of the neck, when he fell out on the door steps and soon died from the shock.

A patron of the defendant, whilst in his warehouse on business connected with the road, is entitled, from defendant’s agent, to protection against assaults or insults from any one. The language of the deceased to the agent was rude and wrong, for which the agent had a right to expel him from the premises by using such force as was necessary and no more. The offensive language of *605the deceased, however, did not justify or excuse the violence of the agent, and, if his violent act -was done within the scope of his employment or line of .duty, then his employer, the defendant, is liable in damages for the injury complained of by reason of the original contract and the act of the agent whilst so engaged. "Was the agent’s act in the course of his employment and whilst about the master’s business? No decisive test can be given, but in all cases the question whether the act was committed by the servant in the service of his employer, or for his own purpose, is one for the jury, in view of all the circumstances. Wood on Master & Servant, 594; Hussey v. Railroad, 98 N. C., 34. In this case, that question was submitted to the jury in the charge of the court and by their verdict the fact, that the agent was acting within the line of his employer’s business is settled in the affirmative.

The full briefs of counsel and their able argument on each side, assisted the Court greatly in the consideration of this case. We do not find it necessary to refer to their numerous citations, but will do so as to some of them. Jones v. Glass, 13 Ired., 305, relied upon by the defendant, was the case of an overseer engaged in his employer’s business. In the exercise of his proper duties he used excessive force and seriously injured the slave and his employer was held liable. The quotation from the opinion on page 308 was that the driver left the track and ran over a man, and the master was held not liable, because the driver was not doing the business his master had put him about. No authority is cited and without controverting that statement it is sufficient to say that according to the verdict, the agent in the present case was in the line of his duty.

Wesson v. Railroad, 4 Jones, 379. Here the defendant had let out the building of the road to contractors, who, *606whilst so working, committed a trespass on adjacent lands without the knowledge of the defendant. The court said a master is no.t liable for the wilful trespass of a servant. H,e is liable in an “action on the case” for an injury caused by the negligence or unskillfulness of a servant while doing his business, but not in an action of trespass vi et armis. Rut there is another ground to support that conclusion, to-wit, that a contractor is not a servant proper. His is an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. He is not subject to the orders of the other contracting party in respect to the details of the work, but is only bound to do the specific work according to an agreed plan. Baron Rolfe in Reedie v. Railroad Co., 4 Exch., 244, said “But neither the principle of the rule (of Master and Servant) nor the rule itself can apply to a ease when the party sought to be charged does not stand in the character of employer to the party by whose negligent act the injury has been occasioned.”

Hussey v. Railroad, 98 N. C., 34, was an action for slander by defendant’s general superintendent and came to this Court upon demurrer. This Court overruled the demurrer and sent the case back for such action as the defendant might be advised.

The first five prayers for instruction by the defendant were in substance that there was no evidence that the agent was acting in the line of his duty to his employer, or that if they believed the evidence they should answer the first issue “No.” These prayers assumed the very questiofi which the jury had to consider and that was properly left to the jury. The last prayer is answered in .another part of this opinion.

We think the charge of the court presented the case to *607the jury fully as favorably as the defendant c-ould ask. The exceptions to the charge were that the court refused to give the prayers to the jury. We think the court gave the defendant’s prayers, as far as was proper, to the jury, and the exceptions are overruled. "Whilst the abusive language of the deceased would have justified his expulsion by necessary force, it could not extenuate such excessive violence on the part of the agent.

The burden of proving and making out a case, at least presumptively, was upon the plaintiff throughout the trial, but when the killing is admitted, then the burden of showing extenuating circumstances, by a preponderance of evidence, was upon the defendant. That was a material part of his defence, and the jury was so instructed. State v. Willis, 68 N. C., 26; Joses v. Railroad, 142 U. S., 17.

After mature consideration of this case, by reason of its importance, we are unable to see any error in the trial below.

Affirmed.

(concurring): The correctness of the ruling in the court below depends, not upon the general principles governing the liability of the master for the torts of his servant, but upon the nature, extent and duration of the duty of protection which is implied in contracts for the carriage of passengers. Stewart v. Brooklyn, &c., 90 N. Y., 588, 594. It is important", therefore, to define the duty particularly and clearly, and to determine when it arises and when it ceases to exist. From the inception of the relation between them until it ends, the law imposes upon the carrier the duty of protecting his passenger absolutely against his own servants and qualifiedly against all other persons. Though the conduct of the employee or officer in doing violence to the passengers maybe wholly unau*608thorized, beyond the scope of his authority and even wilful and malicious, the obligation to respond in damages for any injury done still rests upon the principle just as fully as it would had the master commanded or encouraged the commission of the act. Hutchinson on Carriers, Sections 595, 596, 597; Jeddard v. Railway, 57 Me., 202; Sherley v. Billings, 8 Bush, 47; People v. Brunswick, &c., 60 Ga., 282; Stewart v. Brooklyn, supra; Terra Haute, &c. v Jackson, 6 Am. & Eng. R. cases, 178; Chicago R. Co. v. Slexam, 103 Ill., 546; Western R. Co. v. Turner, 72 Ga., 292; Railroad v. Sheehan, 29 Ill., App., 90; Dwenelle v. Railroad Co., 120 N. Y., 117; Railroad Co. v. Kertle, 16 Am. &. Eng. R. cases, 337; Bryan v. Rich, 106 Mass., 180.

In the case of the female passengers the weight of authority goes further, and extends the obligation to them so far as to impose the legal duty upon the carrier of protecting them not only against indecent assaults, but against in;ulting proposals or insolent abuse, obscene or offensive words. Crake v. Railroad Co., 36 Wis., 657; Bryan v. Railroad Co., 16 Am. & Eng. R. Cases, 335; Railroad Co. v. Ballard, 85 Ky., 307; Campbell v. Car Co., 42 Fed. Rep., 484.

A railroad company is bound also to use reasonable vigilance to protect a passenger against violence at tbe hands of fellow passengers or of intruders, or of any person permitted by it to come bn its premises, and where it appears that its conductor knew or had reasonable ground to apprehend that the safety of a passenger or passengers was endangered by any threatened force from within or outside of the train, and failed to use every available means to avert the threatened wrong, the company is liable to respond in damages for any assault that ensued. Hutchinson, supra, Sec. 553 a; Britton v. Railroad, 88 *609N. C., 536 ; Spehm v. Railroad Co., 87 Mo., 74; Railroad Co. v. Burke, 53 Miss., 200; Spehm v. Railroad Co., 101 Mo., 417; Railroad Co. v. Pillow, 76 Pa. St., 510; Railroad Co. v. Hines, 53 Pa. St., 512; Flint v. Transportation Co., 34 Conn., 554; Railroad Co. v. Flexam, supra; Angell on Carrier, See. 521, p. 462, note a; Railroad Co. v. Riley, 39 Ind., 568.

Where the servant of the railway company is actually assaulted, he has the same right as other persons to repel force by resistance, but, having overcome it, he becomes liable himself and renders the carrier answerable if he further pursue and punish the wrong doer. Hanson v. Railroad Co., 62 Me., 84. Insulting language is never deemed in law provocation sufficient to justify an assault or to warrant the use of excessive force in the expulsion of intruders. But the servant of a company that owes the duty of protection to one on its premises by its invitation, or to transact business with it, stands in a relation to such person somewhat analagous to that which a peace officer sustains to a prisoner in his custody. It is therefore clear that the defendant was liable to answer in damages for the killing of the plaintiff’s intestate, who was at the time, in contemplation of law, under its protection, and, as will appear from the authorities already cited, the liability is in no wise dependent upon the question whether the agent was acting -within the scope of his authority. Railroad Co. v. Hines, 53 Pa. St., 512. The fact that the intestate was on the premises and under the protection of the company, if such was his status, gave him, the right to claim absolute immunity from injury at the hands of any of its servants. The duty of insuring his safety against injury by intruders might possibly depend upon the question whether a servant-was at the time on duty at the place of the threatened injury. But for any injury sustained'at *610the bands of its servant, whether on or off duty, a person on its premises by its invitation may hold a railroad company unconditionally responsible. The contract of carriage begins not later than the time when a person enters upon the premises of a carrier for the purpose of securing passage, but where carriages are furnished by it to transport passengers to a station a person entering such vehicle or even halting one for the purpose of boarding it with the same object in view and under the implied invitation of the carrier, is entitled to the same right of protection as after the purchase of a ticket. Hutchinson, supra, Section 556-to 561; Dwenelle v. Railroad Co., 120 N. Y., 117; Bryan v. Bennett, 54 Eng. Com. Law Rep., 603; Hansley v. Railroad, 115 N. C., 602; Railroad Co. v. True, 88 Ill., 608; Thompson on Car Pas., p. 42, note. The con-trae! for the carriage of the person with implied right of protection ceases ordinarily when the passenger is safely landed at his point of destination and has left or had reasonable time to leave the premises of the carrier. Johnson v. Railroad, Mass., 125; Patterson Railroad Accident Law, Secs. 221, 320 ; Imhoff v. Railroad Co., 20 Wis. 344; P. C. &c. R. Co. v. Krouse, 30 Ohio St., 222. But even when only so much of the implied contract is in question as imposes the duty of carrying to its destination the person of the passenger, the law looks to his safety by requiring of the carrier the exercise of ordinary care in keeping in good condition every part of the usual way which is to be traveled by him in getting off the premises. Hutchinson, supra; Sec. 516, 519, p. 593; Dodge v. Railroad Co., 148 Mass. 207. It was held by some of the Court formerly that the proprietors of public conveyances, which carried passengers, were not responsible for their baggage unless a distinct price was paid for its carriage. “But the law is now settled otherwise, and when the carrier contracts for *611carriage of the passenger, either expressly or by receiving him upon its conveyances, the carriage of his reasonable and ordinary baggage is regarded as being undertaken as incidental to the principal contract, and as equally obligatory upon the carrier.” Hutchinson, supra, Section 678.

But though the legal obligation to transport the ordinary baggage is incidental to the agreement to carry the person, the liability of the carrier for its safety until a reasonable time after the passenger reaches his destination, extends not simply to responsibility for want of ordinary care, as in the case of the passenger himself, bnt is the same as that of carrier of goods. Hutchinson, supra, Section 678. Every obligation growing out of the contract continues so long as the contract continues. Dwenelle v. Railroad Co., 120 N Y., 117. After a reasonable time, if the baggage is not called for or removed from the station, the liability as insurer ceases, and the law substitutes for it that of warehouseman! Hoeger v. Railroad Co., 63 Wis., 100.

When the relation of carrier, with the obligation of an insurer ceases, that of warehouseman takes its place not under any new agreement but under the original contract of carriage, which still binds the carrier to as high a degree of diligence in caring for it as it was at any time bound to exercise for the safety of the passenger, while on its carriage or premises. Hutchinson, supra, Sec. 712. “The fair construction of the contract (says Hutchinson, Section 713) is said to be that the carrier agrees for a consideration to transport the passenger and his baggage to his destination, and deliver the latter to him on his arrival, if called for, and if not called for, that it shall be properly stored and reasonable care shall be exercised to prevent injury or loss, until it is called for or is lawfully disposed-of.” The plaintiff’s intestate went upon the premises of the company as he had a right to do, in order to surrender his checks *612and receive the-baggage still held under the original contract of carriage. He paid his fare to that station, and acquired the incidental right to have it transported. A passenger does not lose his character as such by alighting at a station before reaching his destination (Parsons v. Railroad Co., 113 N. Y., 356) and he may get off and stop over at any intermediate point, and still in his egress from and ingress to the station, he is under the protection of the carrier while on its premises. While declaring explicitly that the rule governing the master’s liability for the torts of his servant does not apply “to the case of an assault committed upon a passenger by a servant entrusted with the execution of a contract of a common carrier,” the Court of Appeals of New York, in Stewart v. Brooklyn, &c., 90 N. Y., 588, 594, state the rule to be that “The carrier undertakes to protect the passenger against any injury arising from the negligence or wilful misconduct of its servants while engaged in performing a duty which the carrier owed to the passenger.” Whether the doctrine might not have been extended even further, it is not necessary for the decision of this case to determine. The station agent was discharging a duty which the defendant owed to the plaintiff’s intestate in receiving the checks and delivering the baggage. Before that duty was fully performed and while the intestate was on the premises under the original contract'of carriage to receive his trunks stored in its warehouse, its agent made a deadly assault upon him with no pretence or other ground of excuse or justification than the use of insulting language, which in law is no provocation at all. This appeal presents a grave question which has received mature consideration. While in this particular instance it-may impose a burden upon the carrier to answer for the wilful act of its agent, it is not probable that with a full understanding of the law such wilful conduct will be *613heard of again in the next half century. The law, must hold the carriers to the duty of so managing their own servants as to insure the safety of the lives and limbs of persons under their protection. The carriers may provide for their own protection by care in the selection of servants and the use of wholesome discipline, where the employees fail in the discharge of their duty. The other questions are unimportant.

The fact that the plaintiff’s intestate had come upon the premises by invitation of the company gave him a right to the protection of the company through its officers and .servants. The contract of carriage and the fact that he was receiving the baggage that had been transported under it being admitted, the company was, nothing further appearing, liable for an injury to him by its servant. I think there was no error in instructing the jury that under the admitted facts, the burden of proof was shifted upon the defendant to show that he was justified in making the deadly assault upon the plaintiff’s intestate. While I concur with the majority of the Court in the conclusion reached, I do not agree to the opinion of the Chief Justice in so far as it seems to make the liability of the defendant dependent at all upon the question whether the servant was acting within the scope of his authority. The liabil-' ity for acts of servants is absolute as to injuries inflicted by them on persons under their protection. I wish to emphasize the view that the principle governing this case affects the relation of master and servant only when the former is a common carrier, and while the opinion of the Court has been modified, it is still open to objection upon this point.’

The body of the foregoing opinion, submitted as a tentative one, was rejected by the Court, but I still think *614that it places our conclusion upon the only impregnable ground.