US SUPREME COURT DECISIONS

When the contract of a common carrier with a passenger assigns to the latter a particular part of the vessel or vehicle to be occupied by him during transportation, and he voluntarily occupies a place different from that contracted for, the carrier is released from liability for injuries which necessarily arise from the passenger's change of place, but it chanrobles.com-red

Page 121 U. S. 638

continues bound to furnish safe transportation, and to indemnify the passenger, under general rules of law, for injuries which do not directly arise by reason of his change of place or which are caused by improper conduct of the carrier's servants, acting either in the scope of their general duties or in the discharge of special duties imposed upon them.

A common carrier undertakes absolutely to protect its passengers against the misconduct or negligence of its own servants employed in executing the contract of transportation and acting within the general scope of their employment.

What will be misconduct on the part of the servants of a common carrier toward a passenger cannot be defined by a general rule applicable to every case, but must depend upon the particular circumstances in which they are required to act, and in this case the issue was fairly placed before the jury by the court.

Declarations made by out officer to another officer of a steamboat while both are engaged in violently removing a passenger from a part of the vessel in which his contract of transportation did not entitle him to be are admissible in evidence as part of the res gestae in an action brought by the passenger against the corporation owning the steamboat and transporting the passenger to recover damages for injuries resulting from the assault.

This action was brought to recover damages sustained by the defendant in error, the plaintiff below, in consequence of personal injuries inflicted upon him by the employees of the plaintiff in error, a carrier of freight and passengers between the Cities of Albany and New York in the State of New York. A verdict and judgment having been rendered for the sum of $5,500, the case is brought here for review upon the ground that the court below committed errors of law in the conduct of the trial.

The plaintiff avers that he was received by the defendant as a deck passenger upon its boat the Dean Richmond at Albany, and that, in consideration of his having paid the price established for passengers of that class, it undertook to carry him safely to the City of New York, and thereby became bound that its servants and employees on said boat should not needlessly injure him while engaged in the discharge of their duties; that the defendant did not keep its contract, but broke the same in that by its servants on said boat it needlessly and severely wounded him in his person during the voyage, and whereby also incurable injuries were inflicted upon him. These allegations are accompanied by a statement of the circumstances under which the plaintiff insists the alleged wrongs were committed.

The answer denies generally that the company's agents or servants were guilty of negligence or improper conduct, and states

"That the plaintiff paid for a deck passage, and it received him on its boat as a deck passenger for passage to New York on a certain part of the boat allotted to deck passengers, as well known to the plaintiff, and subject to long established rules and regulations of the defendant, including that mentioned in the complaint, of which the plaintiff had due and full notice; that the said rules and regulations were reasonable, and the defendant's officers and employees on the said boat were charged with the duty of enforcing them in a reasonable and proper way, without unnecessary force or violence, and the said rules and regulations, and the officers and employees of the boat in uniform, were well known to the plaintiff; that the plaintiff did not remain on the part of the boat allotted to deck passengers, and did not obey the said reasonable rules and regulations of defendant, but refused so to do, and, contrary to the peace, quiet, good order, and safety of the said boat and its passengers, made a disturbance on the said boat, and the defendant neither used nor authorized any undue or unnecessary force or violence in the enforcement of the aforesaid rule and regulation, but the contrary thereof, and the plaintiff was not injured by any of the defendant's officers, employees, or agents, as alleged in the complaint. "

Page 121 U. S. 643

MR. JUSTICE HARLAN, after stating the facts in the foregoing language, delivered the opinion of the Court. chanrobles.com-red

Page 121 U. S. 644

We will not extend this opinion by a recital of all the facts and circumstances established by the proof. It is sufficient to say that there was evidence tending to sustain both the allegations of the complaint and the averments in the answer. In view of the serious conflict in the statements of witnesses, the case was one peculiarly for the determination of a jury under appropriate instructions as to the law. The court therefore rightfully refused to direct a verdict for the company unless, as claimed, the plaintiff, according to his complaint and the evidence, had no cause of action.

It appears from the complaint that the company had a regulation restricting deck passengers to a particular part of the boat, but of the existence of that rule the plaintiff averred he did not at the time have notice. It also appears by uncontradicted evidence that upon the ticket purchased by the plaintiff were printed the words, "Deck passengers not allowed abaft the shaft," and that placards in different parts of the boat indicated the place on it which such passengers were prohibited from occupying. As the plaintiff was "abaft the shaft" when injured, no case, it is insisted, was made that would sustain an action upon the contract of transportation; consequently it is contended the request to instruct the jury to find for the defendant should have been granted. This argument assumes that the plaintiff could not claim protection under the contract for safe transportation in respect to an injury done him by the company's servants while he was upon a part of the boat other than that to which he was restricted by the rule or regulation printed on his ticket. This position cannot be sustained. We shall not stop to inquire whether the regulation in question is shown to be a part of the contract for transportation, and we assume for the purposes of this case that the plaintiff stipulated that during the voyage he would remain upon the part of the boat to which deck passengers were assigned; still it would not follow that his violation of that stipulation deprived him of the benefit of his contract. Such violation only gave the carrier the right to compel him to conform to its regulation, or, upon his refusing to do so, to require him to leave the boat, using chanrobles.com-red

Page 121 U. S. 645

in either case only such force as the circumstances reasonably justified. If the injuries necessarily arose from his violation of the regulation established for deck passengers, the carrier would not be responsible therefor; but if they were not necessary result of his being at the time on a part of the boat where he had no right to be, and were directly caused by the improper conduct of the carrier's servants either while acting within the scope of their general employment or when in the discharge of special duties imposed upon them, he is not precluded from claiming the benefit of the contract for safe transportation.

The plaintiff was entitled in virtue of that contract to protection against the misconduct or negligence of the carrier's servants. Their misconduct or negligence while transacting the company's business, and when acting within the general scope of their employment, is of necessity to be imputed to the corporation, which constituted them agents for the performance of its contract with the passenger. Whether the act of the servant be one of omission or commission, whether negligent or fraudulent, "if," as was adjudged in Philadelphia & Reading Railroad v. Derby, 14 How. 486,

"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 also Philadelphia, Wilmington & Baltimore Railroad v. Quigley, 21 How. 210. "This rule," the Court of Appeals of New York well says,

"is founded upon public policy and convenience. Every person is bound to use due care in the conduct of his business. If his business is committed to an agent or servant, the obligation is not changed."

Higgins v. Watervliet Turnpike Co., 46 N.Y. 27. The principle is peculiarly applicable as between carriers and passengers, for, as held by the same court in Stewart v. Brooklyn & Crosstown Railroad, 90 N.Y. 591, a common carrier is bound, as far as practicable, to protect its passengers, while being conveyed, from violence committed by strangers and co-passengers, and undertakes absolutely to protect them against chanrobles.com-red

Page 121 U. S. 646

the misconduct of its own servants engaged in executing the contract.

What will be misconduct on the part of its servants toward a passenger cannot be defined by a general rule applicable to every case, but must depend upon the particular circumstances in which they are required to act. In the enforcement of reasonable regulations established by the carrier for the conduct of its business, the servant may be obliged to use force, but the law will not protect the carrier if the servant uses excessive or unnecessary force. This doctrine is well illustrated in Sanford v. Eighth Avenue Railroad, 23 N.Y. 345. In that case it appeared that the plaintiff's intestate got upon a street railroad car in the night-time, and, after being shown to a seat, refused without sufficient cause to pay his fare. He was ordered to leave the car, and, failing to do so, the conductor led him to the forward platform, and, without stopping the car, forcibly ejected him therefrom. The injuries received by the passenger resulted in his death. The court said:

"It must be conceded that the conductor had a right to expel the intestate for the reason that he would not pay his fare when asked to do so. But this was not a right to be exercised in a manner regardless of all consequences. A person cannot be thrown from a railroad train in rapid motion without the most imminent danger to life, and although he may be justly liable to expulsion, he may lawfully resist an attempt to expel him in such a case. As the refusal of a passenger to pay his fare will not justify homicide, so it fails to justify any act which in itself puts human life in peril, and the passenger has the same right to repel an attempt to eject him, when such attempt will endanger him, that he has to resist a direct attempt to take his life. The great law of self-preservation so plainly establishes this conclusion that no further argument is necessary. . . . It is said that the intestate offered resistance when he was thus seized. But this he had right to do in order to save life, which he had not forfeited by refusing to pay the fare. He was liable to be expelled, and the conductor's assault would have

Page 121 U. S. 647

been justified if the car had been stopped and the expulsion had been made without unnecessary violence. But as the conductor has no right to make the assault when he did and as he did, so the law will justify such resistance as was offered to that assault."

See also Hoffman v. New York Central & Hudson River Railroad, 87 N.Y. 24; Rounds v. Delaware &c. Railroad, 64 N.Y. 129, 134; Lynch v. Metropolitan Railway, 90 N.Y. 77; Ramsden v. Boston & Albany Railroad, 104 Mass. 121; Noble v. Cunningham, 74 Ill. 53; Northwestern Railroad v. Hack, 66 Ill. 242; Robinson v. Webb, 11 Bush 464, 482.

In the present case, the jury was instructed, in substance, that the plaintiff had no right to be in any part of the boat except that assigned to deck passengers, and that the carrier's servants had the right -- using no more force than was necessary -- to remove him from the place where he was found by the watchman. Referring to the testimony of the plaintiff, the court observed:

"He says that he went upon the bales of hops, remained there a short time, went to sleep, and was awakened by the watchman, Thiel, striking him with a cane; that he struck him first on the feet, afterwards in the face, and told him to get down. He asked Thiel if he was doing any harm there, and asked to be allowed to stay. Part of the answer was, 'Get down, come down.' The assault upon him continuing, he then put up his satchel for protection, and was thereupon caught by the collar of his cost, and pulled headlong from the freight, his shoulder striking one of the barrels standing near, dislocating it, or causing the injury which has been described. He says that upon regaining his feet, he was again struck by the watchman. Soon after, another officer of the boat came, and he was pushed toward the shaft, and told that was the part of the boat for him to remain in; that he went to the barber shop, and there for the first time read his ticket, and saw the requirement in reference to deck passengers. That, very briefly, is the statement of the plaintiff."

The court proceeded:

"If you believe that statement to be true then I say as a matter of law, that there was more force than was necessary to accomplish the result, and the plaintiff

Page 121 U. S. 648

is entitled to a verdict."

To this last part of the charge the defendant took an exception. But we perceive no ground upon which the exception can properly rest. If the statements of the plaintiff were true, then neither argument nor citation of authorities is necessary to show that undue force was used by the company's servants, and it was the right of the court to so instruct the jury.

But that the jury might also have in mind the case as made by the defendant, the court said:

"On the other hand, you have the testimony of the witness Thiel, who says he came to the freight two or three times before the transaction, and told plaintiff to get down; that the other passengers all got down; that on the third occasion, he stepped on a box and told him to come down; that the plaintiff, instead of doing so, endeavored to climb higher or get away from him; that the plaintiff kicked him in the breast, and in the excitement he caught hold of him, and in the struggle which ensued the boxes, the plaintiff, and the witness came down in a crash upon the floor. If you believe that statement, then the plaintiff brought this assault upon himself; it was an unavoidable accident, and the plaintiff is not entitled to recover. Other witnesses have been called who in part corroborate the story of the watchman and in some particulars corroborate the story of the plaintiff."

The whole case was thus fairly placed before the jury upon the issue as to whether the defendant's servants, in executing its regulation as to deck passengers, used unwarrantable force, and thereby caused the injuries of which the plaintiff complains.

One objection made by the defendant to the admission of evidence deserves to be noticed. The plaintiff in his evidence described the manner in which, as is contended, he was dragged by the watchman from the boxes. After stating that he was thrown to the floor and was being roughly pushed by the watchman, he proceeded:

"Then I saw another man coming with the uniform of the boat on, and the cap, and he said: 'All such men as you ought to be killed.' I says, 'What do you want to kill me for?' He says, 'You farmers are so stingy,

Page 121 U. S. 649

you are too stingy to buy a stateroom, and you ought to be killed.' I said, 'You ought not to call me stingy.' Then he said, 'Have you looked at your ticket?' I think he had 'third assistant mate' on his cap; the cap had a yellow cord, the same as the officers of the boat wore."

It appeared in proof that the person here referred to was one of the mates of the Richmond.

The defendant objected at the trial to the competency of the statements of the mate. The objection was overruled and an exception taken. It is now insisted that the defendant is not responsible for the brutal language of its servants and that the declarations of the mate to the plaintiff were not competent as evidence against the carrier. We are of opinion that these declarations constitute a part of the res gestae. They were made by one servant of the defendant while assisting another servant in enforcing its regulation as to deck passengers. They were made when the watchman and the mate, according to the evidence of the plaintiff, were both in the very act of violently "pushing" him, while in a helpless condition, to that part of the boat assigned to deck passengers. Plainly, therefore, they had some relation to the inquiry whether the enforcement of that regulation was attended with unnecessary or cruel severity. They accompanied and explained the acts of the defendant's servants out of which directly arose the injuries inflicted upon the plaintiff. Vicksburg & Meridian Railroad v. O'Brien, 119 U. S. 99, 119 U. S. 105; Ohio & Mississippi Railway v. Porter, 92 Ill. 437, 439; Toledo & Wabash Railway v. Goddard, 25 Ind. 190, 191. As bearing upon this point, it may be stated that the jury were instructed that the case, as presented, did not authorize vindictive or punitive damages, and that in no event could they award the plaintiff any larger amount than would reasonably compensate him for the injuries received, thus guarding against undue weight being given to the harsh words of the company's servants, apart from their acts.

Other questions arise upon the admission of evidence against the objection of the defendant, upon the refusal of the court to grant requests for instructions in its behalf, and upon certain chanrobles.com-red

Page 121 U. S. 650

parts of the charge to which it excepted. In our opinion, none of these questions requires consideration, and the action of the court in respect to them constitutes no ground for the reversal of the judgment. The charge of the court embodied all that need have been said. It correctly stated the propositions of law arising in the case. No substantial error having been committed, the judgment is

Affirmed.