of any duty to, or any act authorized by, the defendant, and therefore the defendant was not liable. This case was overruled in Stewart v. Railroad Co., 90 N. Y. 588 (1). In that case the plaintiff, while a passenger on one of the defendant's street cars, was unjustifiably attacked and beaten by the driver, who also acted as conductor. It was held by the court that the rule relieving the master from liability for a malicious injury inflicted by his servant when not acting in the scope of his employment did not apply as between a common carrier of passengers and a passenger, and the principle was affirmed that a common carrier undertakes to protect the passenger against any injury arising from the negligence or wilful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger. Isaacs v. Railroad Co. was set aside, in the decision of this case, on the ground that that case had been determined by the court upon the assumption that the rule of the master's liability for the assault of a servant committed upon a person to whom the master owed no duty was applicable to that case. Stewart v. Railroad Co. was affirmed and followed in Dwinelle v. Railroad Co., 120 N. Y. 117, 24 N. E. Rep. 319 (2), in which it was held that, whatever be the motive that incites the servant to commit an unlawful and improper act towards 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. This liability was deduced from the obligation of the carrier to protect the passenger against any injury from negligence or wilful misconduct of its servants while it performed its contract to carry. In some of the cases, in defining the liability of a carrier of passengers for the wilful acts of his servants, the expression" within the scope of employment," or "in the line of duty," is used. Neither of these expressions, in the usual sense, is applicable to this subject, except as descriptive of circumstances under which the liability of the carrier is unchallenged. Thus in Steamboat Co. v. Brockett, 121 U. S. 638, 7 Sup. Ct. Rep. 1039 (3), the court held that a common carrier undertakes absolutely to protect his passengers against the misconduct or negligence of his own servant employed in executing the contract of transportation, and acting 1. Stewart v. Brooklyn and Crosstown R. R. Co., 90 N. Y. 588, is reported in 8 Am. Neg. Cas. 547.

2. Dwinelle v. N. Y. Central, etc., R. R. Co., 120 N. Y. 117, is included in a note of New York cases relating to Assaults upon and Ejection of Passengers, in 8 Am. Neg. Cas. 552-553.

3. New Jersey Steamboat Co. v Brockett, 121 U. S. 637, is included in a note of cases relating to Assaults upon and Ejection of Passengers, in the United States Supreme and Circuit Courts, in 8 Am. Neg. Cas. 703-707.

within the general scope of his employment. In that case the action was founded upon an assault committed by a servant upon a passenger in enforcing rules and regulations of the company, and consequently the act was done while the servant was acting within the general scope of his employment. The case did not call for the consideration of the liability of the master under other circumstances; and it will be observed that Mr. Justice Harlan, in delivering the opinion of the court, quotes with apparent approbation the principle adopted in Stewart v. Railroad Co., 90 N. Y. 588-591, that a common carrier is bound, as far as practicable, to protect his passengers, while being conveyed, from violence committed by strangers and co-passengers, and undertakes absolutely to protect them against the misconduct of his own servants engaged in executing the contract. The expressions above quoted, used in the cases, seem to mean nothing more than that the carrier is not liable for the acts of the servant when he is off from the duties of his employment, and consequently not employed in executing the carrier's contract of transportation. In Pendleton v. Kinsley, 3 Cliff. 416, Fed. Cas. No. 10,922, the suit was against the owner of a steamboat on which the plaintiff was a passenger. A dispute arose between the plaintiff and the clerk about the payment of fare. Subsequently the plaintiff was assaulted by the clerk on board the vessel, and during the same trip. The defense was that the clerk was not at the time of the assault acting in the course of his employment, and therefore the owner of the vessel was not responsible for his acts. Mr. Justice Clifford, in overruling the defense, said that “the principles of law applicable in litigations growing out of the relations of principal and agent or master and servant are not the principles which fully define the rights, duties, obligations, and liabilities of the parties to this controversy." Speaking of the defense, the learned judge said: "Adjudged cases may be referred to which support that proposition without qualification, but they do not give full scope and effect to the obligation which the carrier assumes towards his passenger, nor to the rights and duties which those relations create and imply. Passengers do not contract merely for ship room and transportation from one place to another, but they also contract for good treatment, and against personal rudeness and every wanton interference with their persons, either by the carrier or his agent employed in the management of the ship or other conveyance, and for the fulfilment of those obligations the carrier is responsible as principal; and the injured party, in case the obligation of good treatment is broken, whether by the principal or his employees, may proceed against the carrier as the party

* * *

bound to make compensation for the breach of the obligation." The above extract from Pendleton v. Kinsley is quoted with approbation in Bryant v. Rich, 106 Mass. 180-189 (1). The liability of the carrier in such cases rests upon the principle that he has engaged to perform certain duties, and has selected his own servants for the performance of those duties, and hence an assault by an employee is a breach of the duty of the carrier to his passenger. This subject is discussed by Mr. Elliott as follows: "There is much apparent conflict among the authorities upon this subject, but we think some of it is due to the use of the term 'scope of employment,' or 'line of duty' in a different sense in different cases, or to a failure to place the decision on the correct ground. It is not merely a question of negligence in such cases, nor is it a question strictly depending upon the scope of the servant's particular employment. It is a question of the absolute duty of a railroad company to its passengers as long as that relation subsists, and a breach of that duty on its part, whether caused by the wilful act of an employee or not. Either the company or the passengers must take the risk of infirmities of temper, maliciousness, and misconduct of the employees whom the company has placed upon the train, and to whom it has committed the discharge of its duty to protect and look after the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is therefore but just to make the company, rather than the passengers, take this risk, and to hold it responsible." 4 Elliott, R. R., § 1638. The cases on this subject in the courts of our sister States are not harmonious, but the great weight of authority is in favor of the doctrine declared by the New York cases which have been cited. The decisions are collected in an elaborate note to 5 Am. & Eng. Enc. Law (2d ed.) 541-548. It is quite unnecessary to reproduce them here. The doctrine that a common carrier of passengers undertakes to carry a passenger safely and securely is nowhere impugned, and to apply to assaults upon a passenger by one of its employees the doctrine that rests solely upon the relation of principal and agent is to overlook the peculiar obligation that rests upon the carrier of passengers, and the liability which results from the failure to discharge that obligaIn actions against common carriers, the plaintiff may sue in assumpsit on the contract to carry, or in case on the common-law duty. Saund. Pl. & Ev. 325.

Under the evidence appearing on the record, the nonsuit should not have been granted, and the judgment should be reversed.

1. Bryant v. Rich, 106 Mass. 180, is reported in 8 Am. Neg. Cas. 392.

DESERANT v. CERILLOS COAL RAILROAD

COMPANY (1).

Supreme Court, New Mexico, December, 1898.

MASTER AND SERVANT- MINER KILLED BY EXPLOSION IN COAL MINE. In a suit brought to recover for the death of a coal miner, who is killed in an explosion in a coal mine, where the plaintiff claims that the explosion was caused by an air course being partially obstructed by accumulation of water, so that sufficient air was not passing through it to properly ventilate the mine, the burden of proof is on the plaintiff to show that such air course was so obstructed that sufficient air was not passing through it. FELLOW-SERVANTS. - The pit boss of a mine, working under a superintendent who has charge of the whole property and its workings is a fellowservant of the other employees, and the corporation is not liable to an administratrix for the death of an employee caused by an explosion occasioned by workmen going into a room where there is an accumulation of gas, over a danger signal, with a naked light, either by the direction of the pit boss or with him.

(Syllabus by the Court.)

FROM judgments of District Court, Santa Fe County, in favor of defendant, plaintiff brings error.

NIELL B. FIELD and FRANK W. CLANCY, for plaintiff in error. HENRY L. WALDO and RALPH E. TWITCHELL, for defendant in

error.

MILLS, CH. J. This is the second time these cases have been here for review. In these several actions damages are claimed by the plaintiff, as administratrix, against the defendant, for the death of her husband, Henry Deserant, and her sons, Jules Deserant and Henry Deserant, Jr., by an explosion which occurred in the White Ash Mine on Wednesday, February 27, 1895, at about 10:45 A. M. For the purpose of the trial, the three cases were consolidated by order of the court below, and were also heard in this court in the same manner. The declarations charge negligence in various ways, but on the trial no proof other than circumstantial was offered to show what was the cause of the explosion, or where it began. In the language of the learned judge who wrote the opinion when this case was last before this court: "It appears that by this explosion all the employees, twenty-three in number, who were at the time in the further left entry (except those in what was called the 'Plane'),, 1. See note of previous decision in this case in 4 Am. Neg. Rep. 87.

were killed, and therefore all evidence to show how the explosion occurred, and where was its initial point, is necessarily circumstantial." Railroad Co. v. Deserant, 49 Pac. Rep. 807. It is unnecessary for us to go into the particulars of the accident or show the workings of the mine, as they are sufficiently set out in the case of Railroad Co. v. Deserant, supra, heretofore reported. The only substantial difference in the evidence is that on the former trial it was testified that the body of Kelly was found in the upper crosscut, between rooms 8 and 9, and the body of Flick was found on the railroad track, in room No. 8, above the crosscut; while in the present case it is shown by the testimony of Kelly, one of the witnesses for the plaintiff, that the bodies of Kelly, Flick, and Donohue were found within a few feet of each other. The theory of the prosecution as to the cause of the explosion is the same now as then, to wit, that, owing to an accumulation of water, previous to the explosion, in a low place in the fourth left air course, a sufficient quantity of pure air was not going to the face of the workings, in the fourth left entry, to remove and expel the noxious gases; that Kelly and Flick, who were company men that is, men who were paid by the day, and not according to what work they did — acting under instructions from Donohue, the day pit boss, went with him, or by his direction, into room 8, to remove a railroad track, carrying naked lights, and that such lights set fire to the gas which had accumulated there by reason of the insufficiency of air, and caused the explosion. This theory is purely speculative, and is not supported by the evidence. It cannot be positively proved what was the initial point of the explosion or what caused it. In fact, the evidence goes to show, from measurements taken at various times by the superintendent of the mine, the pit boss, and the United States inspector, that sufficient air was going through the fourth air course and mine to make it safe. Indeed, the evidence goes further, and shows that after the explosion, and on the day of the investigation by the coroner's jury, and while much of the debris caused by the explosion was still in the fourth left air course, a sufficiency of air was passing through it, over the water and debris, through the low place, which was claimed by the plaintiff to have been obstructed by water, for the proper ventilation of the entry and its rooms, and the expulsion of all harmful gases, and for the men and animals working there at the time of the explosion. There is no evidence that the condition of the fourth left air course was the direct or proximate cause of the explosion, and, for the plaintiff to recover, this must be proved by a preponderance of evidence. That Flick, Kelly, and Donohue were fellow-servants of