source arising. He is not regarded as an insurer of his passenger's safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of to make his passenger's journey safe and comfortable. He must not only protect his passenger against the violence and insults of strangers and copassengers, but a fortiori, against the violence and insults of his own servants. If this duty to the passenger is not performed, if this protection is not furnished; but, on the contrary, the passenger is assaulted and insulted through the negligence or wilful misconduct of the carrier's servant, the carrier is necessarily responsible. And it seems to us it would be cause of profound regret if the law were otherwise. The carrier selects his own servants, and can discharge them when he pleases, and it is but reasonable that he should be responsible for the manner in which they execute their trust. "18 Sec. 1095. (§ 597.) Same subject-Liable for assaults by porters or omnibus guards. So it has been held that a railroad company is liable for the wrongful assaults upon a passenger by the porter of a sleeping-car,19 or drawing-room car20 attached to its train, the servants in charge of these cars being considered, for the purposes of the contract between the railroad company and the passenger, as the servants of the railroad company.21 And the owner of an omnibus has been made to respond in damages where the omnibus guard threw a passenger, whom he deemed to be drunk, to the ground.22 18. The same principle was applied in the same court in the case of Hanson v. The Railway, 62 Me. 84, in which the proof was of an assault and battery upon a passenger by a brakeman, equally unprovoked and aggravated, and as little pertinent to his duty, and a verdict for $10,000 was not regarded as excessive under the circumstances. 19. Dwinelle v. Railroad Co., 120 N. Y. 117. See also, Bayley v. The Railway Co., L. R. 7 C. P. 415. 20. Williams v. Railway Co., 40 La. Ann. 417. 21. Pennsylvania Co. v. Roy, 102 U. S. 457. 22. Seymour v. Greenwood, 7 H. & N. 355. Sec. 1096. Same subject-Like rule governs as to liability of carrier by water for assault by servants.-As we have already seen, cairiers by water owe the same duty, in respect of the treatment of passengers, as carriers by land and are held to the same liability.23 Thus, where a deck passenger upon a steamboat, after having paid the price of his passage, was assaulted and severely beaten by the clerk to whom he had immediately before paid it, for the alleged reason that he had been secreting himself under the boilers of the boat, the owners of the steamboat were held liable as the carriers of the passenger for the act of their clerk, and were made to pay damages for the injuries inflicted, including the loss of an eye by the passenger.24 And in another case, the owners of a steamboat were made liable for the battery of a passenger by the steward of the boat and his assistants, growing out of a dispute as to whether another passenger, whose cause the plaintiff espoused, had paid for his supper.25 So a carrier by water is liable for a wrongful assault by the mate of a ship upon a passenger.26 Sec. 1097. (§ 598.) Same subject-Exemplary damages allowed. In these cases it was not only held that the carrier was liable for the injury which had been sustained by the passenger from the ill-treatment of the servant, but that they were proper cases for exemplary damages, and verdicts against the defendants for amounts greatly in excess of the actual damage from the injuries inflicted were considered proper. But, though there can be no doubt that they carry the doctrine of respondeat superior to a great length, and beyond the limit which has been thought justifiable in other classes of cases, they are sustained by the weight of authority elsewhere as to the liability of the carrier under similar circumstances.27 23. Trabing v. Nav. & Imp. Co., 121 Cal. 137, 53 Pac. Rep. 644; Memphis & C. Packet Co. v. Pikey, 142 Ind. 304, 40 N. E. Rep. 527. 24. Sherly v. Billings, 8 Bush, 147; and see Pendleton v. Kinsley, 3 Cliff. 416. 25. Bryant v. Rich, 106 Mass. 180. 26. Springer Transp. Co. v. Smith, 16 Lea, 498. 27. See post, § 1442. Sec. 1098. (§ 599.) Same subject-Early overruled cases in New York hold carrier not liable for assault by servant not acting in line of his duty.-A different view of the law was formerly taken by the courts of New York in subsequently overruled cases. In Isaacs . The Railroad,28 a female passenger upon a street car rang the bell to stop the car, in order that she might alight, and while she stood upon the platform of the car, which was yet in motion, insisting upon its being stopped, the conductor, with a rough remark, seized her by the shoulder and violently threw her to the ground, and her leg was broken by the fall. The liability of the company for the act of the conductor was denied, upon the ground that the act was wanton and reckless, and not in the performance of the conductor's duty or of any act authorized by the company. "Whenever an injury," it was said, "has been caused by the conduct of a servant in the business of his master, and within the scope of his employment, the master has been held liable, although such conduct may have been tortious. The question of liability does not depend entirely on the quality of the act, but rather upon the other question, whether it has been performed in the line of duty and within the scope of the authority conferred by the master. When the act of a servant, whether a trespass or otherwise, is without the authority, either expressly conferred upon the servant, or implied from the nature of the employment and character of the duties, and causes injury to others, the master is not answerable. It is said that the implied authority in the servant is limited to those acts which the master could himself do if personally present, and if in the performance of such acts the servant misconducts himself, the master will be liable for his acts." But this case, though the principle has been followed in some others, 29 was afterwards shown to have been incorrectly decided 28. 47 N. Y. 122. 29. Parker v. The Railway, 5 Hun, 57; Whitaker v. The Railroad, 51 N. Y. 295; Hibbard v. The Railroad, 15 id. 455; Higgins v. The Turn. & R. R. Co., 46 id. 23; Weed v. Railroad, 17 id. 362; Drew v. The Railroad Co., 26 id. 49. because it ignored the distinction between the duty owed by the carrier to a passenger and that owing to a mere stranger.30 Thus it has been held by the same court that a railway company may be liable to an action for assault and battery for blows upon the face of the passenger, struck by the conductor of the car in attempting to eject the passenger who resisted; for, it was said, such an act may be done without malice or ill feeling, and may be deemed necessary by the conductor to effect the purpose with which he is charged in the proper performance of his duty.31 Sec. 1099. ($ 600.) Liability of carrier for assault by servants in station or before or after the existence of the relation of carrier and passenger.-But the elementary rule that the master can be held liable for the tortious acts of the servant only when they are done by the servant in the course of the servant's duty, and in his undertaking to perform it, but not when they are acts of wilful misconduct, has been made the test of the carrier's liability to the passenger when the tortious acts complained of have been committed by the carrier's servant before the relation of carrier and passenger has commenced,32 or after it has ceased,33 or while the passenger re 30. Stewart v. Railroad Co., 90 N. Y. 588. 31. Jackson v. The R. R., 47 N. Y. 274. 32. One who goes to a railway station, even though intending to take passage some hours in the future, and engages in other business (such as writing up his insurance reports), cannot be said to have put himself directly under the carrier's control and care with the bona fide intention of becoming a passenger, so as to make the company liable to him for an assault by the station agent. Andrews v. Railroad Co., 86 Miss., 129, 38 So. Rep. 773. See also, Railroad Co. v. Richmond, 98 Ga. 495, 25 S. E. Rep. 565. But the railway company is liable where the ticket agent on an elevated road violently and wilfully pushed down stairs a man to whom he had refused to sell a ticket under the erroneous impression that he was drunk (McKernan v. Railway Co., 54 N. Y. Super. 354). 33. The plaintiff was rightfully ejected from a station room by a station agent who used no more force than was necess y.. that purpose. Thereafter a.. Cereation occurred between the plain mains as such upon the station grounds.34 Where the rela tion of carrier and passenger has not commenced, or where it tiff and the station agent, and, in the scuffle that ensued, plaintiff was shot in the thigh. The fight occurred on the platform after the plaintiff had applied some opprobious epithets to the station agent. The appellate court found as a matter of fact that the station agent in the fight on the platform was not acting in the line of his duty and held the railroad company not liable in damages for plaintiff's injuries. Railroad Co. v. Randolph, 65 Ill. App. 208. So in Central Railway Co. v. Peacock, 69 Md. 257, the driver on a street car used insulting language to a passenger, who replied that when they got to the office of the company (which they were soon to pass) he would report him. When the car got within a block of the office, the passenger left the car and started toward the office, intending to report the conduct of the driver and then return to the car to continue his journey. He did not inform the driver of his intention to return to the car. The driver, on seeing the passenger going toward the office, got off the car, intercepted the passenger and beat him severely with the iron car-brake. The court held that the plaintiff had ceased to be a passenger, that the driver was not acting in the line of his duty, and that the car company was not liable for the assault. But in a very similar case, where the conductor first assaulted a passenger upon the car and then followed him to the office, where he had gone to make complaint, and again assaulted him there, the company was held liable for both assaults, the conductor being deemed to be acting on both occasions as an employe and violating the duty which the company owed to the plaintiff as a passenger. Savannah, etc., R.. Co., v. Bryan, 86 Ga. 312, 12 S. E. Rep. 307. See, also, Daniel v. Railroad Co., 117 N. Car. 592, 23 S. E. Rep. 327, where a person was shot by the baggage master during an angry altercation after the relation of carrier and passenger had ceased, and a finding of the jury that the baggage master was acting within the scope of his authority was not disturbed. In The Little Miami Railroad Co. v. Wetmore, 19 Ohio St. 110, an altercation occurred between the passenger and the baggagemaster of the railroad, which resulted in an attack by the latter upon the passenger with a hatchet, from which he received ce rious injury; but it was held that the assault was not in the course of the business of the servant of the defendant, and that it could not therefore be held liable. In Crocker v. The Railroad, 24 Conn. 249, a person was kicked while attempting to re-enter the car after ejection, and the rule in the text was applied. 34. In Railway Co. v. Bowlin, (Tex. Civ. App.) 32 S. W. Rep. 918, the railroad company was held liable for the act of one who |