Cincinnati v. Carper

• Decision Date: 11 October 1887
• Citation: 13 N.E. 122,112 Ind. 26
• Parties: Cincinnati, H. & I. R. Co. v. Carper, Adm'r.
• Court: Indiana Supreme Court

112 Ind. 26

13 N.E. 122

Cincinnati, H. & I. R. Co.

v.Carper, Adm'r.¹

Supreme Court of Indiana.

October 11, 1887.

Appeal from circuit court, Fayette county.

R. D. Marshall and W. C. Farrey, for appellant. Claypool & Son and Duncan, Smith & Wilson, for appellee.

Elliott, J.

The complaint of the appellee alleges that his intestate bought a ticket at Connersville entitling him to a passage on the appellant's trains to Cincinnati, Ohio; that his intestate was a stranger in Connersville, unacquainted with the points of the compass at that city; that on the day he purchased his ticket, he went to the appellant's depot, intending to take passage on its east-bound train, which, according to schedule time, passed Connersville at 8:40 p. m.; that the east and west bound trains usually passed at that hour at Connersville; that the night on which the appellee's intestate intended to take passage was dark; that at a short distance to the west of appellant's station the track passed over a highway and canal upon an elevated trestle-work several hundred feet in length; that at a short distance west of the trestle-work there was a switch known as “Salter's Switch;” that on the night on which the intestate intended to take passage for the east the train from the west was behind time, and was ordered to wait at Salter's switch for the train from the east; that the latter train was ordered to move forward, and pass at that point; that the conductor of that train had notice of these orders; that, on the arrival of the train from the east, the intestate, supposing it to be the east-bound train, entered it, and immediately thereafter it departed; that shortly after the departure of the train the conductor informed him that he was on the wrong train, and stopped the train a short distance west of the trestle-work which spanned the canal and highway; that “he carelessly and negligently directed the deceased to get off, and at once to walk back over the railroad track to Connersville, informing him that if he (the deceased) did so” he would reach the station in time to take passage on the east-bound train; that at the time the conductor gave these directions he knew of the existence of the trestle-work, and that the east-bound train would in a very few minutes pass over that part of the track lying between the place where the deceased was directed to leave the train and the station at Connersville; that there was no highway or foot passage between those points by which the deceased could return to the station, except by passing along the railroad track; that the deceased was ignorant of the existence of the trestle-work, and of the fact that the east-bound train would soon pass over the trestle-work; that the deceased undertook to obey the directions of the conductor, and, without fault or negligence on his part, was struck and killed while walking along the track built upon the trestle-work on his way to the station at Connersville.

Where a person has bought a ticket over a railroad, and, by mistake, takes passage on the wrong train, he is a passenger, so far as to entitle him to protection against the negligence of the company. Railway Co. v. Powell, 40 Ind. 37; Railroad Co. v. Gilbert, 22 Amer. & Eng. R. Cas. 405; Ry. Accident Law, 215; 2 Wood, Ry. Law, 1047. The deceased was therefore entitled to be treated as a passenger while on the train, and a high degree of practicable care to protect him from injury was due to him from the carrier.

Where the directions of the conductor are within the scope of his authority, and obedience to them will not expose a passenger to known or to apparent danger which a prudent man would not incur, obedience by the passenger is not contributory negligence, although it may result in bringing injury upon him. In Pool v. Railway Co., 53 Wis. 657, 11 N. W. Rep. 15, and 56 Wis. 227, 14 N. W. Rep. 46, the doctrine was stated somewhat more broadly, and it was said, in speaking of the passenger: “He relied, and we think he had a right to rely, on the judgment of the person in charge of the car, presuming that by following his directions in the matter he would not expose himself to any unnecessary or unusual peril.” It was held in Hanson v. Railway Co., 38 La. Ann. 111, 58 Amer. Rep. 162, that one who rides on the locomotive, under the direction of the “engineer conductor,” is not guilty of contributory negligence; and the court said: “It has also been frequently held that taking an unusual place on a train, which ordinarily might be considered contributory negligence, cannot be so regarded when the place is occupied by the direction or permission of the conductor.” We cannot concur in this extreme view of the law. Our conclusion is that a passenger may safely rely on the judgment of those placed in charge of the train where it is not plainly open to his observation that reliance will expose him to danger that a prudent man would not incur; but that he cannot rely on their judgment where it would expose him to a risk that a reasonably prudent man would not assume. An American author says: “If the danger is obvious, and such as a reasonable man would not have incurred, the passenger must not assume the risk.” 3 Wood, Ry. Law, 1121. It was said by this court in Railroad Co. v. Kelly, 92 Ind. 371, 47 Amer. Rep. 149, that “our own cases hold that passengers are warranted in obeying the directions of the agents and servants of the carrier, unless such obedience leads to known danger which a prudent man would not encounter.” This doctrine is supported by our own cases, and by the great weight of authority. Railway Co v. Swift, 26 Ind. 459; Railroad Co. v. Hoagland, 78 Ind. 203; Railroad Co. v. Fix, 88 Ind. 381, 45 Amer. Rep. 464; Railroad Co. v. Buck, 96 Ind. 346; Filer v. Railroad Co., 49 N. Y. 47; Filer v. Railroad Co., 59 N. Y. 47; Railroad Co. v. Cantrell, 37 Ark. 519, 40 Amer. Rep. 105; Fowler v. Railroad Co., 18 W. Va. 579; Hickey v. Railroad Co., 14 Allen, 429; Railroad Co. v. Aspell, 23 Pa. St. 147, 62 Amer. Dec. 323; Railroad Co. v. Boyer, 97 Pa. St. 91; Railroad Co. v. Horst, 93 U. S. 291; Railroad Co. v. Person, 4 S. W. Rep. 755; Beach, Cont. Neg. 72; 2 Wood, Ry. Law, 1121; Hutch. Carr. § 535.

Under the rule we have stated, the deceased cannot be considered guilty of contributory negligence upon the case made by the complaint, for it is averred that he was ignorant of the danger to which the directions of the conductor exposed him, and was free from fault and negligence. As he was free from fault and ignorant of danger, and as the danger was not open to his observation, he cannot be regarded as having done what a reasonably prudent man would not have done in relying upon the directions of the appellant's conductor, if the directions were given by the conductor while acting within the line of his duty.

We come now to a question of much more difficulty, and that is, were the directions of the conductor given while acting within the scope of his authority? It is an elementary rule that a principal is not bound by the acts of his agent unless they are performed within the scope of the authority actually or ostensibly conferred upon him. This rule applies, of course, to railroad corporations as well as to natural persons. Ry. Accident Law, 99.

The conductor of a passenger train is undoubtedly clothed with extensive authority. In discussing this subject, Chief Justice Ryan said: “Indeed, as that fictitious entity, the corporation, can only act through natural persons, its officers and servants, and as it of necessity commits its trains absolutely to the charge of officers of its own appointment, and passengers of necessity commit to them their safety and comfort in transitu, under circumstances of such peril and subordination, we are disposed to hold that the whole power of the corporation, pro hac vice, is vested in these officers, and that, as to the passengers on board, they are to be considered as the corporation itself.” Bass v. Railway Co., 36 Wis. 450. Speaking for the court, Campbell, J., said of the conductor and the company: “He represents them in the whole management of his train.” It was also said: “He occupies the same position as the master of a ship.” Railway Co. v. Miller, 19 Mich. 305. In Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, the court declared that the conductor represents the corporation, and said: “If such a conductor does not represent the company, then the train is operated without any representative of its owner.” Discussing the general subject, the supreme court of Pennsylvania said: “And wherever there are no prescript rules, the usage or common law of railroads makes the conductor the responsible agent in the conduct of the train. It is of the last importance to all interests, both public and private, that the law should define with precision to whom the custody and responsibility of a train of cars attaches. We hold that from the beginning to the end of the trip, whatever the motive power employed, the conductor, and nobody else, is the responsible party in possession of the train.” Rauch v. Lloyd, 31 Pa. St. 358. There are many authorities which assert doctrines substantially the same as those declared in the cases from which we have quoted. Railway Co. v. Powell, supra; Railroad v. McMurray, 98 Ind. 358; 1 Wood, Ry. Law, 449, and cases cited; Thomp. Carr. 369.

But, broad as the authority of the conductor is, it is by no means unlimited; on the contrary, it is limited to the management and control of the train committed to his care. He has authority to control the train in its movements, and it is his duty to take measures to preserve passengers from injury while getting on the trains, while they are on it, and while they are alighting. In the discharge of this duty he must, as the representative of the company, exercise a high degree of care and diligence, but, when the relation of carrier and passenger terminates, the authority of the...