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although the violence may have no apparent relation to the conduct of the business. In the law of private relations when the assault is committed by a servant out of personal spite or in a frolic of his own, many authorities hold that the master is not liable. But practically all the cases as to public employment hold the company liable for its failure to protect its patrons from all assaults whatsoever by any employé whatever. And insults 1 directed against a passenger by a servant, also subject the railroad to liability. Although for mere insults not published no liability would normally be recognized in private relations, still a wrong is worked out in this case from the failure of the company to perform its duty to protect the passenger from insult.

Georgia. Savannah, F. & W. Ry. Co. v. Quo, 103 Ga. 125, 29 S. E. 607, 40 L. R. A. 483, 68 Am. St. Rep. 85 (1897).

Indiana.-Indianapolis P. & C. Ry. Co. v. Anthony, 43 Ind. 183 (1873).

Kentucky.-Louisville & N. R. R. Co. v. Ballard, 85 Ky. 307, 3 S. W. 530, 7 Am. St. Rep. 600 (1887). Maryland.-Baltimore & O. R. R. Co. v. Barger, 80 Md. 23, 30 Atl. 560, 26 L. R. A. 220, 45 Am. St. Rep. 319 (1894).

Massachusetts.-Coleman v. New York & N. H. R. R. Co., 106 Mass. 160 (1870).

Maryland.-Baltimore & O. R. R. Co. v. Blocher, 27 Md. 277 (1867).

New York.-Dwinelle V. New York Central & H. R. R. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611 (1890).

North Carolina.-White v. Nor

folk & S. R. R. Co., 115 N. C. 631, 20 S. E. 191, 44 Am. St. Rep. 489 (1894).

Ohio.-Passenger R. R. Co. v. Young, 21 Ohio St. 518, 8 Am. Rep. 78 (1871).

Pennsylvania.—Pennsylvania R. R. Co. v. Vandiver, 42 Pa. St. 365, 82 Am. Dec. 520 (1862).

Virginia.-Norfolk & W. R. R. Co. v. Anderson, 90 Va. 1, 17 S. E. 757, 44 Am. St. Rep. 884 (1893).

Wisconsin.-Craker v. Chicago & N. W. Ry. Co., 36 Wis. 657, 17 Am. St. Rep. 504 (1875). 1 See, for example:

Illinois. Chicago, B. & Q. R. R. Co. v. Griffin, 68 Ill. 499 (1873). Maine.-Goddard V. Grand Trunk Ry. Co., 57 Me. 202, 2 Am. St. Rep. 39 (1869).

Missouri.-McGinnis v. Missouri Pac. Ry. Co., 21 Mo. App. 399 (1886).

New York.-Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y.

§ 936. Obligation to protect guest.

The situation is substantially the same in innkeeping as in passenger carriage and the same general principles should apply; but there is upon this matter a notable conflict of authority. It would seem that since his servants are provided, among other things, for the purpose of protecting guests, every injury inflicted upon the guest by a servant, either intentionally or negligently, is a breach of his duty of protection, and should render the innkeeper liable to the guest. The innkeeper's duty, the breach of which by his servant causes the injury, is not the negative duty not to assault the guest, but the affirmative duty to protect him from assault. The servant, in assaulting the guest, is the one committing the battery; but he is at the same time causing a breach of the obligation of protection which rests on the innkeeper, and which the servant has himself been employed to carry out. To put an extreme case,2 an innkeeper would certainly be liable who continued to receive guests without notifying them that there was a guest in the house stricken with smallpox. But these principles have not been accepted by all courts. In a California case, for example, it was held that while the innkeeper must employ careful serv

347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503 (1904).

Tennessee. Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S. W. 557, 46 L. R. A. 549 (1899). Texas.-Missouri, K. & T. Ry. Co. v. Kendrick (Tex. Civ. App.), 32 S. W. 42 (1895).

Wisconsin.-Craker v. Chicago & N. W. Ry. Co., 36 Wis. 657, 17 Am. Rep. 504 (1875).

1 Minnesota.-Curran v. Olson, 88 Minn. 307, 92 N. W. 1124, 60 L. R. A. 733, 97 Am. St. Rep. 517 (1903).

Missouri.-Overstreet v. Moser, 88 Mo. App. 72 (1901).

Nebraska.-Clancy v. Barker, 71 Neb. 83, 98 N. W. 440, 69 L. R. A. 642, 115 Am. St. Rep. 559 (1904).

Pennsylvania.-Rommel v. Schambacher, 120 Pa. St. 579, 11 Atl. 779, 6 Am. St. Rep. 732 (1887).

2 Gilbert v. Hoffman, 66 Iowa, 205, 23 N. W. 632, 55 Am. Rep. 263 (1885).

3 Rahmel v. Lehndorff, 142 Cal. 681, 76 Pac. 659, 65 L. R. A. 88, 100 Am. St. Rep. 154 (1904).

ants, and would be liable for negligence in employing his servants, and would furthermore be liable if he personally stood by and saw his servant injure a guest, yet he could not be held liable for an assault by his servant on a guest in the absence of personal negligence. The innkeeper's responsibility, the court said, is distinguishable from that of the carrier. There are other cases to the same effect,1 based upon this idea that as the control of the innkeeper over his guests is not so intimate as that of a carrier he is not obliged to answer for their protection to the same extent. These must be regarded as ill-considered decisions. The obligation of the carrier and of the innkeeper in this respect should be placed on the same ground.

§ 937. Blameworthiness must be shown.

To hold a public servant for failure to protect his patrons as he has professed to do, is not to impose upon those who conduct these services the responsibility of an insurer of the safety of the patrons. Some one concerned in rendering the service must be found to be to blame for the injury complained of. The duty is to protect from such injurious acts as the proprietor may fairly be held responsible for. A rather recent case 2 well illustrates this. A passenger was injured by the accidental falling of a brakeman upon her; but the court found no ground for holding the railroad liable. "The declaration is founded on the careless and negligent manner in which the brakeman discharged his duty, and the only two questions in the case to be determined upon this motion are-First, whether the company failed to discharge the duty which it owed to the plaintiff as a passenger; and, second, whether

1 Clancey v. Barker, 131 Fed. 161, 66 C. C. A. 469, 69 L. R. A. 653 (1904).

2 Skinner v. Atchison, T. & S. F. Ry. Co., 39 Fed. 188 (1889). See

also Goodloe v. Memphis & C. R. R. Co., 107 Ala. 233, 18 So. 166, 29 L. R. A. 729, 54 Am. St. Rep. 67 (1894).

the brakeman was negligent in the discharge of the duty committed to his care." The defendant owed, the court held, care and protection to the plaintiff,—such care and protection as, in the ordinary management and operation of trains, the highest degree of skill and care could exercise properly to protect her. But it appeared that the brakeman was in no way to blame for his slipping; and hence the railroad was held not liable. 1

§ 938. Bases of liability for unauthorized injury.

Practically all the cases hold that those who have engaged themselves in a public service where people are in their charge are liable to a greater extent for injury to such persons than those engaged in a private business would be under similar circumstances. This is sometimes spoken of as exceptional; but as a matter of fact the apparently extreme liability of the public company in such cases is part of the general duty to protect those in its charge. This extends to outrageous action by the employé of a public servant against those whom it is the duty of the public company to protect, as well as to all other defaults in this respect. Indeed, it may help in

That the assault by the employé was provoked by the passengers is generally held no excuse. See, for example:

Illinois. Chicago & Eastern R. R. Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33 (1882).

Maryland.-Baltimore & O. R. R. Co. v. Barger, 80 Md. 23, 30 Atl. 560, 45 Am. St. Rep. 319, 26 L. R. A. 220 (1894).

New York.-Weber v. Brooklyn, Q. C. & S. R. R. Co., 47 App. Div. 306, 62 N. Y. Supp. 1 (1900).

North Carolina.-Strother v. Ab

2

erdeen & A. R. R. Co., 123 N. C. 197, 31 S. E. 386 (1898).

But see:

Georgia.-City Electric Ry. Co. v. Shropshire, 101 Ga. 33, 28 S. E. 508 (1897).

New York.-Hibbard v. N. Y. & E. Ry. Co., 15 N. Y. 555 (1857).

2 United States.-New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 S. Ct. 1039, 30 L. ed. 1049 (1886).

Alabama.-Birmingham Ry. & El. Co. v. Baird, 130 Ala. 334, 30 So. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43 (1900).

understanding the law to say that every servant of the company has the duty to protect them from injury by himself as well as injury by third parties. This matter is well discussed in a leading case. "We do not understand it to be denied that if such an assault on the respondent had been attempted by a stranger, and the conductor had neglected to protect her, the appellant would have been liable. But it is denied that the act of the conductor in maliciously doing himself what it was his duty, for the appellant to the respondent, to prevent others from doing, makes the appellant liable. It is contended that, though the principal would be liable for the

Georgia. Savannah F. & W. Ry. Co. v. Quo, 103 Ga. 125, 29 S. E. 607, 40 L. R. A. 483, 68 Am. St. Rep. 85 (1897).

Indiana.-Louisville & N. R. R. Co. v. Kelley, 92 Ind. 371 (1883).

Maryland.-Baltimore & O. R. R. Co. v. Barger, 80 Md. 23, 30 Atl. 560, 26 L. R. A. 220, 45 Am. St. Rep. 319 (1894).

Massachusetts.-Hayne v. Union St. Ry. Co., 189 Mass. 551, 76 N. E. 219, 3 L. R. A. (N. S.) 605, 109 Am. St. Rep. 655 (1905).

New Jersey.-Haver v. Central of N. J. R. R. Co., 62 N. J. L. 282, 41 Atl. 916, 43 L. R. A. 84, 72 Am. St. Rep. 647 (1898).

New York.-Dwinelle v. New York Cent. & H. R. R. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611 (1890).

Nevada. Quigley v. Central Pacific R. R. Co., 11 Nev. 350, 21 Am. Rep. 757 (1876).

Ohio.-Passenger R. R. Co. v. Young, 21 Ohio St. 518, 8 Am. Rep. 78 (1871).

Tennessee.-Pullman P. C. Co.

v. Gavin, 93 Tenn. 53, 23 S. W. 70, 21 L. R. A. 298, 42 Am. St. Rep. 902 (1893).

Texas. St. Louis, S. W. Ry. Co. v. Johnson, 29 Tex. Civ. App. 184, 68 S. W. 58 (1902).

Virginia.-Norfolk & W. R. R. Co. v. Anderson, 90 Va. 1, 17 S. E. 757, 44 Am. St. Rep. 884 (1893). Washington.-Cunningham v. Seattle El. R. & P. Co., 3 Wash. 471, 28 Pac. 745 (1892).

V.

West Virginia.-Gillingham Ohio River Ry. Co., 35 W. Va. 588, 14 S. E. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827 (1891).

1 Craker v. Chicago & N. W. Ry. Co., 36 Wis. 657, 17 Am. Rep. 504 (1875).

In perhaps a majority of States the courts go so far as to permit the recovery of punitive damages against the company. Goddard v. Grand Trunk Ry. Co., 57 Me. 202, 2 Am. St. Rep. 39 (1869).

But this would seem to be going too far. Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 37 L. ed. 97, 13 Sup. Ct. 261 (1893).

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