189 Mass. 551 | Mass. | 1905
The plaintiff was a passenger on the defendant’s street car, and was riding near the front window, on a seat in the corner of the car. The car entered upon a turnout to pass two other cars, going in the opposite direction, which were waiting there for the plaintiff’s car to go by. The conductor of one of these cars, who had picked up a dead hen on the beach near the road, threw the hen in sport at the motorman on the car on which the plaintiff was riding. When he threw the hen he was standing on the ground near his car. He missed the motorman, and his missile struck the window, broke the glass, and thereby injured the plaintiff. This action was brought to recover compensation for the injury. The judge of the Supe
We will assume in favor of the defendant that there was no evidence to warrant a finding that the conductor who threw the hen was acting within the scope of his employment, and therefore, under the rules of law applicable to the ordinary relations of master and servant, the defendant would not be liable for the servant’s act. But the plaintiff iñvokes a special rule applicable to common carriers. A common carrier of passengers impliedly agrees to exercise 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 transportation. They necessarily submit themselves 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 wilful misconduct of others. This rule prevails generally in
the American courts. Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co. 97 Mass. 361. Bryant v. Rich, 106 Mass. 180. New Jersey Steamboat Co. v. Brockett, 121 U. S. 637. Goddard v. Grand Trunk Railway, 57 Maine, 202. Stewart v. Brooklyn & Crosstown Railroad, 90 N. Y. 588. Dwinelle v. New York Central & Hudson River Railroad, 120 N. Y. 117. Haver v. Central Railroad, 33 Vroom, 282, 284. Chicago & Eastern Railroad v. Flexman, 103 Ill. 546, 550. Fick v. Chicago & Northwestern Railway, 68 Wis. 469. Indianapolis Union Railway v. Cooper, 6 Ind. App. 202. Terre Haute & Indianapolis Railroad v. Jackson, 81 Ind. 19. In the application of the rule to injuries caused by servants of the carrier while engaged in the performance of his contract of carriage, it is held that he is liable absolutely for their misconduct. This part of
Under the authorities, it is plain that if the wrongful act which caused the injury in the present case had been done by the conductor or motorman of the car on which the plaintiff was riding, the defendant would be liable. The only question upon which there is ground for any doubt is, whether the rule applies to an injury done by a servant who was engaged in the same general service, but was employed upon another car, and was not charged directly and primarily with any duty to provide for the safety of the plaintiff. We are of opinion that the liability of the defendant is the same as if the conductor who threw the hen had been in charge of the plaintiff’s car. The rule of liability in such cases is made absolute. 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. In Bryant v. Rich, 106 Mass. 180, it was said that, “ In respect to such treatment of passengers, not merely the officers but the crew are the agents of the carriers.” The great diligence and learning of the defendant’s counsel have discovered for our enlightenment no case in which it has been held that the carrier 1was not liable, because the servant, at the time of his wrongful act, was not directly employed in carrying the passenger injured, if he was engaged in the general business of which the transportation of the passenger was a part. Of course, if he was at the
We are of opinion that the defendant is liable for the misconduct of the conductor, although he was not employed upon the car in which the plaintiff was riding.
Exceptions sustained.
