Where a suit was brought against a railroad company by a person
who was injured by a collision, it was correct in the court to
instruct the jury that if the plaintiff was lawfully on the road,
at the time of the collision, and the collision and consequent
injury to him were caused by the gross negligence of one of the
servants of the defendants, then and there employed on the road, he
was entitled to recover notwithstanding the circumstances that the
plaintiff was a stockholder in the company, riding by invitation of
the President, paying no fare, and not in the usual passenger
cars.
And also that the fact that the engineer having the control of
the colliding locomotive, was forbidden to run on that track at the
time, and had acted in disobedience of such orders, was no defense
to the action.
A master is liable for the tortious acts of his servant, when
done in the course of his employment, although they may be done in
disobedience of the master's orders.
This was an action on the case brought by Derby, for an injury
suffered upon the railroad of the plaintiff in error.
The declaration, in ten counts, was, in substance, that on the
15th day of June, 1848, the defendants, being the owners of the
railroad, and of a certain car engine called the
Ariel,
received the plaintiff into the said car, to be safely carried
therein, upon, and over the said railroad, whereby it became the
duty of the defendants to use proper care and diligence that the
plaintiff should be safely and securely carried, yet, that the
defendants, not regarding their duty in that behalf, conducted
themselves so negligently by their servants, that, by reason of
such negligence, while the car engine
Ariel was upon the
road, and the plaintiff therein, he was precipitated therefrom upon
the ground, and greatly injured. Defendants pleaded not guilty.
On the 22d of April, 1851, the cause came on to be tried, and
the evidence was, in substance, as follows:
In the month of June, 1848, the plaintiff, being a stockholder
in the said railroad company, came to the City of Philadelphia, for
the purpose of inquiring into its affairs, on his own account and
as the representative of other stockholders. On the 15th of June,
1848, the plaintiff accompanied John Tucker, Esq., the president of
the said company, over the railroad, for the purpose of viewing it
and the works of the company.
They proceeded in the ordinary passenger train of the company,
from the City of Philadelphia, the plaintiff paying no fare for his
passage as far as the City of Reading.
On arriving at Reading, the plaintiff inspected the machine
shops of the defendants, there situate, and remained for that
purpose about half an hour after the departure of the passenger
Page 55 U. S. 469
train towards Pottsville, which latter place is about the
distance of ninety-two miles from Philadelphia.
By order of Mr. Tucker, a small locomotive car engine, called
the
Ariel was prepared for the purpose of carrying the
plaintiff and Mr. Tucker further up the road. This engine was not
constructed, or used, for the business of the said defendants, but
was kept for the use of the President and other officers of the
company, their friends and guests.
On this engine, the plaintiff and Mr. Tucker, accompanied by the
engineer and fireman, and a paymaster of defendants, proceeded,
following the passenger train, until they reached Port Clinton, a
station on the line of the railroad.
After leaving Port Clinton, when about three miles distant from
it, going round a curve, the passengers on the
Ariel saw
another engine called the
Lycoming, of which S. P. Jones
was the conductor, approaching on the same track. The engineer of
the
Ariel immediately reversed his engine, and put down
the brake. Mr. Tucker, the plaintiff, and the fireman, jumped from
the
Ariel to avoid the impending collision. After they had
jumped, the engineer also left the
Ariel, having done all
he could do to stop it. The plaintiff, in attempting to jump, fell,
and received the injury of which he complains.
The engineer of the
Lycoming, when he saw the approach
of the
Ariel, reversed his engine and put down the brake.
He did not leave the
Lycoming till after the collision. At
the time of the collision, the
Lycoming was backing. The
engines were but slightly injured by it.
On the night of the 14th or the morning of the 15th of June, a
bridge, on the line of the railroad above Port Clinton, was burnt.
In consequence of this, one of the tracks of the railroad was
blocked up by empty cars returning to the mines, and stopped by the
destruction of the bridge. For this reason a single track only
could be used for the business of the road between Port Clinton and
the burnt bridge.
Lewis Kirk, an officer of the said company, master machinist and
foreman, went on in the passenger cars from Reading, towards
Pottsville, informing the plaintiff and Mr. Tucker, that he would
give the proper orders to have the track kept clear for the
Ariel. On arriving at Port Clinton, he did give an order
to Edward Burns, dispatcher at Port Clinton, an officer of said
company, charged with the duty of controlling the starting of
engines, that no car should be allowed to go over the road until he
the said Kirk returned.
This order was communicated in express terms by Burns to Jones,
the conductor of the
Lycoming. Jones replied that he would
go, and would take the responsibility, and, contrary to
Page 55 U. S. 470
his orders, did go up the road towards the burnt bridge, and on
his return met the
Ariel, and the collision ensued, as
above stated. Jones had the reputation of being a careful and
competent person, no previous disobedience of orders by him had
ever occurred, and he was discharged by the defendants immediately
after the accident, and because of it.
On the trial, the plaintiff below requested the court to charge
the jury:
"I. That if the plaintiff was lawfully upon the railroad of the
defendants at the time of the collision, by the license of the
defendants, and was then and there injured by the negligence or
disobedience of orders of the company's servants, then and there
employed on the said railroad, the defendants are liable for the
injury done to the plaintiff by such collision."
"II. That if the defendants by their servants, undertook to
convey the plaintiff along the Reading Railroad, in the car
Ariel, and while so conveying, him, through the gross
negligence of the servants of the company then and there employed
on the said railroad, the collision occurred, by which the
plaintiff was injured, that the defendants are liable for the
injury done to the plaintiff by such collision, although no
compensation was to be paid to the company for such conveyance of
the plaintiff."
"III. That if the collision, by which the plaintiff was injured,
was occasioned by the locomotive
Lycoming, then driven
negligently or in disobedience of orders upon the said road by J.
P. Jones, one of the company's servants, then having control or
command of the said locomotive, that the defendants are liable for
the injury to the plaintiffs, caused by such collision."
And the counsel for the defendants below requested the court to
charge the jury:
"1. That the damages, if any are recoverable, are to be confined
to the direct and immediate consequences of the injury
sustained."
"2. That if the jury believe the plaintiff had paid no fare, and
was passing upon the railroad of the defendant as an invited guest,
in order to entitle him to recover damages he must prove gross
negligence, which is the omission of that care which even the most
thoughtless take of their own concerns."
"3. That the defendants would be liable in damages to a
passenger who had paid passage money upon their contract to deliver
him safely, for slight negligence, but to an invited guest, who
paid no fare or passage money, they will not be responsible unless
the jury believe that there was not even slight diligence on the
part of the agents of the defendants."
"4. That the employer is not responsible for the willful act of
his servant. "
Page 55 U. S. 471
"5. That if the jury believe that the conductor of the engine
Lycoming willfully, and against the express orders of the
officer of the company communicated to him, by running his engine
upon the track above Port Clinton, caused the collision, the
defendants are not responsible for any injury or loss resulting
from such willful disobedience."
"6. That if the jury believe that every reasonable and proper
precaution was taken to have the track of the railroad clear for
the passage of the
Ariel, and collision ensued solely be
reason of the willful disobedience of the conductor of the
Lycoming, and of the express orders duly given by an agent
of the company, the plaintiff cannot recover."
"7. That if the jury believe that the conductor of the
Lycoming, and all the officers of the company in any wise
connected with the collision, were carefully and prudently
selected, and that the collision ensued and the injury resulted to
the plaintiff, an invited guest, by the willful disobedience of one
of them to an order duly communicated, then the plaintiff cannot
recover."
The learned judge charged the jury as requested, on all the
points offered by the plaintiff.
And the learned judge charged on the first and second points
offered by the defendants, as requested, and also on the third
point of the defendants, with the explanation, that though all the
other agents of the defendants acted with diligence, yet if one of
the agents used no diligence at all, then the defendants could not
be said to have shown slight diligence.
As to the fourth point, the learned judge charged as requested
by the defendants, with this explanation, that though the master is
not liable for the willful act of his servant, not done in the
course of his employment as servant, yet if the servant disobeys an
order relating to his business, and injury results from that
disobedience, the master is liable, for it is his duty to select
servants who will obey. The disobedience in this case is the
ipsa negligentia, for it is not pretended by the
defendants that the
Lycoming was intentionally driven
against the
Ariel.
On the fifth, sixth, and seventh points of the defendants, the
learned judge refused to charge as requested.
The learned judge further said, that it is admitted that the
plaintiff was injured through the act of Jones, the conductor of
the
Lycoming, that the plaintiff was lawfully on the road
by the license of the defendants; then, in this view of the case,
whether he paid fare or not, or was the guest of the defendants,
made no difference as to the law of the case.
The jury found a verdict for the plaintiff, and assessed the
damages at three thousand dollars.
A writ of error brought the case up to this Court.
Page 55 U. S. 483
MR. JUSTICE GRIER delivered the opinion of the Court.
This action was brought by Derby, the plaintiff below, to
recover damages for an injury suffered on the railroad of the
plaintiffs in error. The peculiar facts of the case, involving the
questions of law presented for our consideration, are these:
The plaintiff below was himself the president of another
railroad company, and a stockholder in this. He was on the road of
defendants by invitation of the president of the company, not in
the usual passenger cars, but in a small locomotive car used for
the convenience of the officers of the company, and paid no fare
for his transportation. The injury to his person was caused by
coming into collision with a locomotive and tender, in the charge
of an agent or servant of the company, which was on the same track,
and moving in an opposite direction. Another agent of the company,
in the exercise of proper care and caution, had given orders to
keep this track clear. The
Page 55 U. S. 484
driver of the colliding engine acted in disobedience and
disregard of these orders, and thus caused the collision.
The instructions given by the court below at the instance of
plaintiff, as well as those requested by the defendant and refused
by the court, taken together, involve but two distinct points which
have been the subject of exception here, and are in substance as
follows:
1. The court instructed the jury that if the plaintiff was
lawfully on the road at the time of the collision, and the
collision and consequent injury to him were caused by the gross
negligence of one of the servants of the defendants then and there
employed on the road, he is entitled to recover notwithstanding the
circumstances given in evidence and relied upon by defendant's
counsel as forming a defense to the action, to-wit, that the
plaintiff was a stockholder in the company, riding by invitation of
the president -- paying no fare, and not in the usual passenger
cars &c.
2. That the fact that the engineer having the control of the
colliding locomotive was forbidden to run on that track at the
time, and had acted in disobedience of such orders, was not a
defense to the action.
1st. In support of the objections to the first instruction, it
is alleged,
"That no cause of action can arise to any person by reason of
the occurrence of an unintentional injury while he is receiving or
partaking of any of those acts of kindness which spring from mere
social relations, and that as there was no contract between the
parties, express or implied, the law would raise no duty as between
them for the neglect of which an action can be sustained."
In support of these positions, the cases between innkeeper and
guest have been cited, such as 1 Rolle's Abr. 3, where it is
said,
"If a host invite one to supper, and the night being far spent,
he invites him to stay all night, and the guest be robbed, yet the
host shall not be chargeable, because the guest was not a
traveler,"
and
Cayle's Case, 4 Rep. 52, to the same effect,
showing that the peculiar liability of an innkeeper arises from the
consideration paid for his entertainment of travelers, and does not
exist in the case of gratuitous lodging of friends or guests. The
case of
Farwell v. Boston & Worcester Railroad
Company, 4 Metcalf 47, has also been cited, showing that the
master is not liable for any injury received by one of his servants
in consequence of the carelessness of another while both are
engaged in the same service.
But we are of opinion that these cases have no application to
the present. The liability of the defendants below for the
negligent and injurious act of their servant is not necessarily
Page 55 U. S. 485
founded on any contract or privity between the parties, nor
affected by any relation, social or otherwise, which they bore to
each other. It is true, a traveler by stage coach or other public
conveyance who is injured by the negligence of the driver has an
action against the owner founded on his contract to carry him
safely. But the maxim of
respondeat superior, which by
legal imputation makes the master liable for the acts of his
servant, is wholly irrespective of any contract, express of implied
or any other relation between the injured party and the master. If
one be lawfully on the street or highway and another's servant
carelessly drives a stage or carriage against him and injures his
property or person, it is no answer to an action against the master
for such injury, either, that the plaintiff was riding for pleasure
or that he was a stockholder in the road, or that he had not paid
his toll, or that he was the guest of the defendant, or riding in a
carriage borrowed from him, or that the defendant was the friend,
benefactor, or brother of the plaintiff. These arguments, arising
from the social or domestic relations of life may in some cases
successfully appeal to the feelings of the plaintiff, but will
usually have little effect where the defendant is a corporation,
which is itself incapable of such relations or the reciprocation of
such feelings.
In this view of the case, if the plaintiff was lawfully on the
road at the time of the collision, the court were right in
instructing the jury that none of the antecedent circumstances, or
accidents of his situation, could affect his right to recover.
It is a fact peculiar to this case that the defendants, who are
liable for the act of their servant coming down the road, are also
the carriers who were conveying the plaintiff up the road, and that
their servants immediately engaged in transporting the plaintiff
were not guilty of any negligence or in fault for the collision.
But we would not have it inferred from what has been said that the
circumstances alleged in the first point would affect the case if
the negligence which caused the injury had been committed by the
agents of the company who were in the immediate care of the engine
and car in which the plaintiff rode, and he was compelled to rely
on these counts of his declaration, founded on the duty of the
defendant to carry him safely. This duty does not result alone from
the consideration paid for the service. It is imposed by the law
even where the service is gratuitous. "The confidence induced by
undertaking any service for another is a sufficient legal
consideration to create a duty in the performance of it."
See
Coggs v. Bernard and cases cited in 1 Smith's Leading Cases
95. It is true, a distinction has been taken in some cases between
simple negligence and great or gross negligence, and it is said
that one who
Page 55 U. S. 486
acts gratuitously is liable only for the latter. But this case
does not call upon us to define the difference, if it be capable of
definition, as the verdict has found this to be a case of gross
negligence.
When carriers undertake to convey persons by the powerful but
dangerous agency of steam, public policy and safety require that
they be held to the greatest possible care and diligence. And
whether the consideration for such transportation be pecuniary or
otherwise, the personal safety of the passengers should not be left
to the sport of chance or the negligence of careless agents. Any
negligence, in such cases, may well deserve the epithet of
"gross."
In this view of the case also we think there was no error in the
first instruction.
2. The second instruction involves the question of the liability
of the master where the servant is in the course of his employment,
but, in the matter complained of, has acted contrary to the express
command of his master.
The rule of
respondeat superior, or that the master
shall be civilly liable for the tortious acts of his servant, is of
universal application whether the act be one of omission or
commission, whether negligent, fraudulent, or deceitful. If it be
done in the course of his employment, the master is liable, and it
makes no difference that the master did not authorize or even know
of the servant's act or neglect, or even if he disapproved or
forbade it -- he is equally liable if the act be done in the course
of his servant's employment.
See Story on Agency §
452; Smith on master and Servant 152.
There may be found in some of the numerous cases reported on
this subject dicta which, when severed from the context, might seem
to countenance the doctrine that the master is not liable if the
act of his servant was in disobedience of his orders. But a more
careful examination will show that they depended on the question
whether the servant, at the time he did the act complained of, was
acting in the course of his employment -- or in other words whether
he was or was not at the time in the relation of servant to the
defendant.
The case of
Sleath v. Wilson, 9 Car. & Payne 607,
states the law in such cases distinctly and correctly.
In that case a servant, having his master's carriage and horses
in his possession and control, was directed to take them to a
certain place, but instead of doing so, he went in another
direction to deliver a parcel of his own, and, returning, drove
against an old woman and injured her. Here the master was held
liable for the act of the servant though, at the time he committed
the offense, he was acting in disregard of his
Page 55 U. S. 487
master's orders; because the master had entrusted the carriage
to his control and care, and in driving it, he was acting in the
course of his employment. Mr. Justice Erskine remarks in this
case:
"It is quite clear that if a servant, without his master's
knowledge, takes his master's carriage out of the coach house and
with it commits an injury, the master is not answerable, and on
this ground, that the master has not entrusted the servant with the
carriage; but whenever the master has entrusted the servant with
the control of the carriage, it is no answer that the servant acted
improperly in the management of it. If it were, it might be
contended that if a master directs his servant to drive slowly, and
the servant disobeys his orders and drives fast, and through his
negligence occasions an injury, the master will not be liable. But
that is not the law; the master in such a case will be liable, and
the ground is that he has put it in the servant's power to
mismanage the carriage by entrusting him with it."
Although among the numerous cases on this subject some may be
found, such as the case of
Lamb v. Palk, 9 C. & P.
629, in which the court have made some distinctions which are
rather subtle and astute as to when the servant may be said to be
acting in the employ of his master, yet we find no case which
asserts the doctrine that a master is not liable for the acts of a
servant in his employment, when the particular act causing the
injury was done in disregard of the general orders or special
command of the master. Such a qualification of the maxim of
respondeat superior would in a measure nullify it. A large
proportion of the accidents on railroads are caused by the
negligence of the servants or agents of the company. Nothing but
the most stringent enforcement of discipline and the most exact and
perfect obedience to every rule and order emanating from a superior
can insure safety to life and property. The entrusting such a
powerful and dangerous engine as a locomotive to one who will not
submit to control and render implicit obedience to orders is itself
an act of negligence, the
"causa causans" of the mischief,
while the proximate cause, or the
ipsa negligentia which
produces it, may truly be said in most cases to be the disobedience
of orders by the servant so entrusted. If such disobedience could
be set up by a railroad company as a defense when charged with
negligence, the remedy of the injured party would in most cases be
illusive, discipline would be relaxed, and the danger to the life
and limb of the traveler greatly enhanced. Any relaxation of the
stringent policy and principles of the law affecting such cases
would be highly detrimental to the public safety.
The judgment of the circuit court is therefore
Affirmed.
Page 55 U. S. 488
MR. JUSTICE DANIEL dissents from the decision of this Court in
this cause, upon the ground that, the said railroad company being a
corporation created by the State of Pennsylvania, is not capable of
pleading or being impleaded under the 2d section of the 3d article
of the Constitution in any of the courts of the United States, and
that therefore the circuit court could not take cognizance of the
controversy between that corporation and the plaintiff in that
court.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Pennsylvania, and was argued by counsel. On
consideration whereof it is now here ordered and adjudged by this
Court that the judgment of the said circuit court in this cause be
and the same is hereby affirmed with costs and interest until the
same is paid at the same rate per annum that similar judgments bear
in the courts of the State of Pennsylvania.
