Opinion
May Term, 1902.
Louis J. Vorhaus, for the appellant.
Ira A. Place, for the respondent.
The learned trial judge in dismissing the complaint took the ground that Wilkinson, in charging the plaintiff with the crime, in removing him from the train and in subsequently placing him under arrest, was not acting within the scope of his employment; and the argument employed in reaching this conclusion, as shown by the oral opinion delivered at the close of the case, proceeded upon the theory that the arrest and imprisonment were not for the purpose of protecting the interests and property of the defendant.
As illustrative of what acts of the employee of a corporation are within and what acts are without the scope of his employment, we have in this State the two cases of Mulligan v. N.Y. R.B.R. Co. ( 129 N.Y. 506) and Palmeri v. Manhattan R. Co. (133 id. 261), upon the former of which the trial court mainly relied in dismissing the complaint. We deem it unnecessary to point out the distinction that, in our opinion, exists between the Mulligan case and the one at bar, thinking as we do that the liability of the defendant is to be determined by another and different principle which, upon the complaint and the proof, the plaintiff could invoke. Having as we think made out a prima facie case, he was entitled to have a jury determine whether the damages did or did not result from a breach of the defendant's general duty as a common carrier to convey him safely and without molestation to his destination.
In Wood on Master and Servant (2d ed. p. 641) the duty resting upon a common carrier is thus expressed: "A carrier of passengers for hire — as a railroad company — by the sale of a ticket, or the receipt of the price for transportation from one point to another, expressly contracts to carry such person to the point covered by the contract. In addition to that the law impliedly raises a contract on his part to carry such person safely; * * * to treat him respectfully and protect him, so far as due care on his part can do so, from injury from other persons riding by the same conveyance."
In Stewart v. Brooklyn Crosstown R.R. Co. ( 90 N.Y. 588) the court says: "By the defendant's contract with the plaintiff, it had undertaken to carry him 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. Grand Trunk Railway ( 57 Maine, 202; 2 Am. Rep. 39) it is said that "the carrier's obligation is to carry his passenger safely and properly and to treat him respectfully and if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust." The able review of authorities which follows in that case supports the conclusion reached that the rule relieving a master from liability for an injury caused by his servant, when not acting within the scope of his employment, does not apply, even though it be maliciously inflicted, as between a common carrier of passengers and a passenger.
In Dwinelle v. N.Y. Cent. H.R.R.R. Co. ( 120 N.Y. 117), Stewart v. Brooklyn Crosstown R.R. Co. ( supra) and other cases were cited with approval and it was therein said: "These and numerous other cases hold that no matter what the motive is which incites the servant of the carrier to commit an unlawful or improper act toward the passenger during the existence of the relation of carrier and passenger, the carrier is liable for the act and its natural and legitimate consequences." (See, also, Wells v. N.Y.C. H.R.R.R. Co., 25 App. Div. 365.)
In accordance with these authorities and upon the plaintiff's evidence, it was for the jury to determine whether the act of Wilkinson in removing the plaintiff from the train and the conductor's sanction after he was appealed to by the plaintiff for protection against the removal, constituted a violation of the defendant's contract to carry the plaintiff safely to New York city; and if the jury so found, then it would follow that for the plaintiff's subsequent arrest and detention, which was the direct and proximate result of such breach of duty, the defendant would be liable.
Regard being had to the obligation imposed upon the defendant of conveying the plaintiff safely to the city of New York, it was bound not only to protect him so far as practicable while being so conveyed from violence committed by strangers and co-passengers, but it was bound to protect him absolutely against the misconduct of its own servants who were employed to perform its obligation or contract of carriage. It, therefore, becomes immaterial whether Wilkinson or the conductor were acting within the scope of their employment, sufficient appearing to render it a question for the jury to determine whether the duty resting upon the defendant was properly discharged. Had Wilkinson been an entire stranger instead of an employee of the road, and had he with the assent and with the concurrence or by the direction of the conductor removed the plaintiff from the train, the same question would be presented. Where, however, it is not a stranger but an employee of the road, whether he be a detective, or a brakeman, or a fireman, who interferes with the passenger's right to be carried safely and peaceably on his journey, the additional circumstance that he is an employee of the carrier but accentuates the injury that is done to the passenger.
The extent of the duty to protect a passenger against strangers and co-passengers, as distinguished from servants of the carrier, is clearly expressed in the Stewart Case ( supra), as follows: "A common carrier is bound so far as practicable, to protect his passengers while being conveyed, from violence committed by strangers and co-passengers and he undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract."
In our view, therefore, the plaintiff having presented sufficient evidence entitling him to go to the jury upon the question of whether or not the defendant was guilty of a breach of the duty it had assumed of carrying him safely and without wrongful detention to his destination, it was error to dismiss the complaint; and, accordingly, the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred; VAN BRUNT, P.J., dissented.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.