90 N.Y. 588 | NY | 1882
As there was no conflict of evidence upon the trial, the only question to be determined is, whether upon the facts proved the plaintiff was entitled to recover? The defendant was a common carrier of passengers. The plaintiff had taken a seat in one of the defendant's cars, to be conveyed from the western district of Brooklyn to the eastern district of the same city, and had paid his fare. Before reaching the point where he was to leave the car he was attacked by the driver of the car and cruelly beaten. The trial court dismissed the plaintiff's complaint on the ground that the defendant's servant, in assaulting the plaintiff, was not acting within the scope of his employment, but attacked the plaintiff to gratify some wicked and malicious purpose of his own. Had the person assaulted been one to whom the defendant owed no duty, the dismissal of the plaintiff's complaint would probably have been correct; but the rule which applies in such a case has no application as between a common carrier and his passenger. In such a case a different rule applies. By the defendant's contract with the plaintiff, it had undertaken to carry him *591
safely and to treat him respectfully; and while a common carrier does not undertake to insure against injury from every possible danger, he does undertake to protect the passenger against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger. In Goddard v. The Grand Trunk Railwayof Canada (
In the present case the defendant had intrusted the execution of the contract to the driver of the car, and the plaintiff was under his protection. Any breach of the contract committed by the driver was a breach committed by the defendant. It is conceded that any injury arising from the mere negligence *592
of the servant constitutes a breach of the contract. Had the driver, while executing the contract, carelessly and negligently injured the plaintiff, the defendant's liability would not have been doubted. Can it be less a breach of the contract that the injury was intentionally inflicted? An act which would amount to a breach of the carrier's contract, if negligently done, would be equally a breach if done willfully and maliciously. It is immaterial whether a breach of contract results from the negligence or willfulness of the defendant's agent. (Weed v.Panama R.R. Co.,
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 *593 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. The carrier selects his own servants and agents, and, we think, he must be held to warrant that they are trustworthy as well as skillful and competent. Judge STORY states the rule as follows: "In every such case the principal holds out his agent as competent and fit to be trusted, and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency." (Story on Bailments, §§ 400 and 406;Stokes v. Saltonstall, 13 Peters [U.S.], 181.) "A railway company selects its own agents at its own pleasure, and is bound to employ none except capable, prudent and humane men." (Penn.R.R. Co. v. Vandiver, 42 Penn. St. 365.)
If the carrier places lady passengers under the protection of libertines who insult or assault them, or male passengers under the protection of drunken ruffians who fall upon and beat them without cause, he should be responsible for the injury. This rule rests upon sound reason, and is abundantly supported by authority.
In Goddard v. The Grand Trunk Railway of Canada (
In Craker v. Chicago and Northwestern Railway Company
(
The judgment should be reversed and new trial granted, costs to abide the event.
All concur, except RAPALLO, J., absent.
Judgment reversed.