FROM a judgment of nonsuit of the Circuit Court, Hudson County, plaintiff brings error. The declaration in this case is in tort. It avers that the plaintiff boarded one of the trains of the defendant, the Central Railroad Company, a common carrier for the transportation of passengers. and baggage between the city of Elizabeth and Bayonne, and that means to prevent them from running away while he was engaged in closing the windows in the carriage, there were reasonable grounds to justify a jury in finding that he was careless and incompetent. Benner Livery and Undertaking Co. v. Busson, 58 Ill. App. 17. A person who, for disorderly conduct, was ejected from a waiting room by a ticket agent, cannot recover for injuries inflicted by the agent on the platform during an altercation provoked by the person's insulting language, such injuries not being inflicted in the course of the agent's employment. Chicago and A. R. Co. v. Randolph, 65 Ill. App. 208, 8 Am. Neg. Cas. 195. In an action for damages for the death of a passenger on a steamboat who was killed by the mate, it is no defense in an action against the company that the class of men usually employed on steamboats were quarrelsome and violent. Memphis and C. Packet Co. v. Pikey, 142 Ind. 304, 8 Am. Neg. Cas. 221. A passenger unjustifiably assaulted by a brakeman on the train may recover from the company. Atchison, T. & S. F. R. Co. v. Henry, 55 Kan. 715, 8 Am. Neg. Cas. 280. Where a brakeman had an altercation with a passenger, and the conductor reported it at a station to a superintendent, who advised that the passenger be removed from the train, and the conductor then procured a policeman who went into the car and arrested the passenger without a warrant, and who was subsequently imprisoned, the company was liable for the false imprisonment. Atchison, T. & S. F. R. Co. v. Henry, 55 Kan. 715, 8 Am. Neg. Cas. 280. In an action against a street railway company for personal injuries, plaintiff was entitled to recover if, while on defendant's car as a passenger, he was abused by defendant's conductor, and if the abuse was continued to the sidewalk, and plaintiff was knocked down by the conductor, unless the jury believe that plaintiff was the aggressor, and while on the car abused the conductor, or assaulted him either on or off the car; and, if more force were used by the conductor than was necessary, the company is not responsible if plaintiff was the aggressor. Wise v. South Covington & C. R'y Co., 91 Ky. 537, (2d appeal, 34 S. W. Rep. 894). In an action against a railroad company for an assault by its conductor on a passenger, where it appeared that the latter, as he presented his ticket made a remark to the conductor, who thereupon struck the plaintiff with his fist, and then with his lantern, it was proper to refuse to charge that if the jury believed that plaintiff used foul and abusive language to the conductor, which caused or provoked the assault, and that, in making such assault, the conductor was not acting within the scope of his duties, but was carrying out a personal purpose and feeling, the company would not be liable. Baltimore & O. R. Co. v. Barger, 80 Md. 23, 8 Am. Neg. Cas. 360. It is within the line of a conductor's authority to eject a passenger, and if done wrongfully, recklessly, and oppressively, is cause for recovery of exemplary damages. Lucas v. Michi he did thereupon pay the said defendant his fare for passage; that while a passenger as aforesaid, and traveling in the train of the said company, he was then and there insulted and abused by one Simeon D. Apgar, a baggage master in the employ of the defendant, and with force and arms was, without cause or provocation, assaulted by the said employee of said company, whereby the plaintiff was gan Cent. R. Co., 98 Mich. 1, 8 Am. Neg. Cas. 431 n. Where an employee in charge of a gravel train took plaintiff, a boy seven years of age, on the train with him, and the boy expressing a wish to go home, was advised by the employee to get on an approaching freight train, and plaintiff got on a heap of gravel between the tracks and caught hold of the caboose, and as he did so the gravel slipped under him and he was caught by the wheels and injured, the advice of the employee was not within the scope of his employment, and it being the proximate cause of the injury, the company was not liable. Keating v. Michigan Cent. R. Co., 97 Mich. 154. Though an engineer violates an express rule of the company by running his engine from one station to another without orders from the train despatcher, he is acting within the line of his employment, and the company will be liable to a passenger injured through such misconduct. Fitzsimmons v. Milwaukee, L. S. & W. R'y Co., 98 Mich. 257. A brakeman who forced a trespasser from a moving train without an order from the conductor, though the rules of the company required that he should act under the orders of the conductor, was acting without authority, and the company was not liable. Randall v. Chicago & G. T. R'y Co., (Mich.) 3 Am. Neg. Rep. 679; Hartigan v. Michigan Cent. R. Co. (Mich.) 71 N. W. 452. Where a flagman, whose duty it was, on discovering a trespasser on a train, to take him to the conductor, and then, if so directed, to stop the train and put him off, on his own responsibility ejected a trespasser while the train was in motion, the company was liable for the injuries that resulted. Southern R'y Co. v. Hunter, 74 Miss. 444, I Am. Neg. Rep. 289. Where a passenger went into an express car to get goods billed to him, there being no express agent at the station, and the train started but was stopped when the conductor discovered him, and he was told to get out, but refused to do so without his goods, and the train was again started when he attempted to leave, but finding that the train had passed the platform, tried to withdraw into the car when he was seized by the conductor, who was on the ground, and pulled out, the question whether the conductor was acting within the scope of his duties was for the jury. Fremont, E. & M. V. R. Co. v. Root, 49 Neb. 900. A railroad company is not liable for injuries from the explosion of a torpedo placed on the track by a station agent for his own amusement, and not as a signal to any train, and the rules forbade placing them near a station. Smith v. N. Y. C. & H. R. R. Co., (N. Y.) 78 Hun, 524. A carrier is liable for an assault upon a passenger by one of the crew who goes outside of his line of duty to do it. White v. Norfolk & S. R. Co., 115 N. C. 631, 8 Am. Neg. Cas. 564 n. Where the decedent, while calling for his baggage, was shot by the depot agent on account of abusive language used by the decedent to the agent, a finding by the jury that the agent was acting in the line of his duty so as to injured, wherefore he claims damages in the sum of $10,000. The facts as they appeared in evidence were that the plaintiff in December last took passage in the defendant's cars at Elizabethport for Bayonne, Bergen Point; that he took his seat in the passenger compartment of the baggage car; that the baggage master immediately. demanded his fare, which the plaintiff refused to give to him, and so the baggage master passed along and called the conductor, and the conductor came in; that, as soon as the conductor came in, he paid him his fare. Then the plaintiff testified: "As I was paying my fare the baggage master stood by the door, and the conductor went out of the door; and he passed along and said, 'You son of a bitch! I am notioned to punch the face off you;' and he grabbed hold of me and shook me, where I sat in the seat. The other passengers interfered, and he broke away from me. center. He tackled me again, and struck me with all the vengeance he had. I avoided the blow by keeping close to him, and he ran me along the aisle, and slammed me against the water cooler. Finally he let go of me, and threw me into the aisle of the car, against the other seats." On this evidence on the part of the plaintiff the court granted a nonsuit, whereupon the plaintiff sued out this writ of error. render the railway company liable would not be disturbed. Daniel v. Petersburg R. Co., 117 N. C. 592, 8 Am. Neg. Cas. 564 n. A railroad company is not liable for injuries to a person who jumped from a train after being told by an official that he was on the wrong train, that it was going slow, and that he could jump from it. Rothstein v. Pennsylvania R. Co., 171 Pa. St. 620, 6 Am. Neg. Cas. 390. Dirt and rock dumped against and into another's house by the section men of defendant while engaged in work ordered to be done, will render it liable though the injurious acts were not expressly authorized. Ft. Worth & N. O. R'y Co. v. Smith, (Tex. Civ. App.) 25 S. W. Rep. 1032. Where the station agent was cross and refused information to a passenger as to the name of the next town or where she could find a hotel, and when He was in the she asked for water pointed to a tank some distance away, and men and boys around the station jeered and laughed at her, the company was not liable. Missouri, K. & T. R. Co. v. Kendrick, (Tex. Civ. App.) 32 S. W. Rep. 42. A railroad company is not liable for an assault upon a peddler by its sec tion foreman on the grounds of the company, after the peddler, who had been a passenger, left the station to engage in his business. Krantz v. Rio Grande W. R'y Co., 12 Utah, 104, 8 Am. Neg. Cas. 647. The ejection of a passenger by the conductor of freight train ordered to carry no passengers is within the scope of his authority, and the company is liable for injuries sustained by the passenger in being ejected while the train was in motion. Stone v. Chicago, St. P. M. & O. R'y Co., 88 Wis. 98, S Am. Neg. Cas. 679 n. ROBERSON & DEMAREST, for plaintiff in error. JOHN L. CONOVER, for defendant in error. DEPUE, J. (after stating the facts). A master is liable for the trespass of his servant committed within the scope of his authority, even though in exercising his authority he use unnecessary violence; but for a trespass committed by the servant wilfully, or of his own malice, under color of discharging the duties of his employment, or where he has gone beyond the line of his duty to commit a trespass, the master will not be liable. This rule of law, where the relation of master and servant exists, uncontrolled by other circumstances, is well settled. It was so decided by this court in Brokaw v. Transportation Co., 32 N. J. Law, 328. The action in that case was in trespass, for ejecting the plaintiff with force and arms out of the car of the railroad company "while he was traveling in said car," and the case was before the court on demurrer. Whether the plaintiff was lawfully a passenger in the company's car, and entitled to the privileges and protection due from the carrier to its passengers, does not appear in the case. The plaintiff in this case became a passenger in the defendant's car, and at the time of this occurrence had paid his fare to the conductor, and was entitled to all the rights, privileges, and protection which the law accords to passengers, and subject to the duties and liabilities which the law imposes on a carrier for the safety of its passengers. The case now before the court depends, not upon the law of liability of a master for the acts of his servants, but upon the duty imposed on the railroad company in the carriage of the plaintiff as a passenger. The duty of a carrier of passengers is to safely and securely carry persons who bear to it the relation of passengers. The carrier is under obligation to use the utmost care and diligence in providing suitable and sufficient vehicles for the conveyance of its passengers, to carry the passenger therein to the end of his route, to protect him against assault and other ill treatment by those employed by and under the carrier's control while on the way, and to exercise the utmost vigilance and care in maintaining order and guarding the passenger against violence, from whatever source arising, which might reasonably be anticipated or naturally expected to occur in view of all the circumstances, and the number and character of persons on board. Cooley, Torts, 644; 5 Am. & Eng. Enc. Law (2d ed.) 541. In the application of this principle, the grade of the employee by whom the injury was done, or the scope of his employment, is immaterial. The courts of England seem to apply to such a situation the ordinary rule that prevails as between master and servant. Allen v. Railway Co., L. R. 6 Q. B. 65 (1); Walker v. Railroad Co., L. R. 5 C. P. 640(2); Railway Co. v. Broom, 6 Exch. 314(3). In Isaacs v. Railroad Co., 47 N. Y. 122 (4), the Court of Appeals of New York held that the defendant was not liable for the act of the conductor in pushing a passenger from the car while it was in motion. The decision was put upon the ground that the act of the conductor was a wanton and wilful trespass, not in the performance 1. In Allen v. London & S. W. R'y Co., L. R. 6 Q. B. 65, it was held that a clerk in the service of a railway company, whose duty it is to issue tickets to passengers, and to receive the money, and to keep it in a till under his charge, has no implied authority from the company to give into custody a person whom he suspects has attempted to rob the till, after the attempt has ceased; as such arrest could not be necessary for the protection of the company's property, and the company was therefore not liable for the act of the clerk. In such action it appeared that the clerk in handing plaintiff change gave him a foreign coin which he refused to receive, but the clerk declined to take it back, and plaintiff threw the coin upon the counter and said: "I will have my right money;" whereupon the clerk gave him into custody and charged him with attempting to steal money from the till. On trial of the suit against the railway company for false imprisonment, plaintiff was nonsuited. 2. The facts in Walker v. SouthEastern R'y Co., L. R. 5 C. P. 640, were: A constable, who was a servant also of the railway company, after the conclusion of a scuffle in a station-yard between some of the company's servants and other persons, wrongfully gave A. into custody on a charge of assaulting the servants of the company. By the regulations of the company their constables were authorized to take into custody any one they saw committing an assault upon another in any of the stations, and for the purpose of putting an end to any fight or affray; but they were directed to use this power with extreme caution, and not if the fight or affray was at an end before they interposed: Held, that the company was not liable for the act of their servant, as the constable was not acting within the scope of his employment. In such action it appeared that B. refused to leave a station-yard of the company, and a struggle thereupon ensued between him and the servants of the company, during which he was wrongfully given in charge by a constable of the company, employed under the above rule: Held, that there was evidence that the company was acting within the scope of his employment. 3. In Eastern Counties R'y Co. v. Broom, 6 Exch. 314, it was held that if the servant of a corporation commits an assault by the authority of the corporation, an action for assault and battery is maintainable against the corporation. Held, also, that if an assault is committed on behalf and for the benefit of a corporation, the corporation may ratify the act of the agent, and if they do so they render themselves liable to an action for the assault. Held, also, that if a servant of a railway company, acting on behalf of the company, assaults and imprisons a passenger, to compel him to pay his fare for riding in a carriage of the company, the act of the servant is one which may be for the benefit of the company, and may be ratified by the company. 4. Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122, is reported in 8 Am. Neg. Cas. 524. |