The Chicago v. Flexman

• Decision Date: 30 September 1882
• Citation: 1882 WL 10352,42 Am.Rep. 33,103 Ill. 546
• Parties: THE CHICAGO AND EASTERN RAILROAD COMPANYv.JAMES FLEXMAN.
• Court: Illinois Supreme Court

103 Ill. 546

1882 WL 10352 (Ill.)

42 Am.Rep. 33

THE CHICAGO AND EASTERN RAILROAD COMPANY

v.JAMES FLEXMAN.

Supreme Court of Illinois.

Filed at Ottawa May 12, 1882.Rehearing denied September Term, 1882.

APPEAL from the Circuit Court for the Second District;--heard in that court on appeal from the Circuit Court of Iroquois County; the Hon. FRANKLIN BLADES, Judge, presiding. Mr. WILLIAM ARMSTRONG, for the appellant:

The master is not liable for the willful mischief of his servant, or his acts outside of the line of his employment. McManus v. Cricket, 1 East, 106; Croft v. Allison, 4 B. & A. 500; Lane v. Cotton, 12 Mod. 488; Middleton v. Fowler, Salk. 282; Rowe v. Birkenhead R. R. Co. 7 Eng. L. & E. 546; Story on Agency, sec. 456; Wharton on Agency, sec. 540; Angell on Carriers, sec. 604; Cooley on Torts, 533; 2 Kent's Commentaries, 260; Wright v. Wilcox, 19 Wend. 343; Vanderbilt v. Richmond Turnpike Co. 2 Conn. 479; Hibbard v. New York and Erie R. R. Co. 15 N. Y. 455; Isaac v. Third Avenue R. R. Co. 47 Id. 122; Mott v. Consumers' Ice Co. 73 Id. 543; Evansville and Crawfordsville R. R. Co. v. Baum, 26 Ind. 70; Indianapolis, Pitts. and Chicago Ry. Co. v. Anthony, 43 Id. 183; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110; Bryant v. Rich, 106 Mass. 180; Ramsden v. B. and A. R. R. 104 Id. 117; Shirley v. Billings, 8 Bush, 147; Goddard v. Grand Trunk Ry. Co. 57 Maine, 202; Johnson v. Barber, 5 Gilm. 425; Tuller v. Voght, 13 Ill. 277; Oxford v. Peter, 28 Id. 434; Halty v. Markel, 44 Id. 227; Pritchard v. Keefer, 53 Id. 117; Noble v. Cunningham, 74 Id. 51; Chicago, Burlington and Quincy R. R. Co. v. Bryan, 90 Id. 126.

Appellee, at the time of the injury, was a stranger to the appellant, and not a passenger, and was upon the car without payment of his fare.

There is a duty resting upon a passenger to so demean himself towards the servants as not, by misbehavior, to provoke a personal quarrel with them. Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 133. See, also, Illinois Central R. R. Co. v. Whittemore, 43 Ill. 420; Chicago and Northwestern R. R. Co. v. Williams, 55 Id. 185; Chicago, Burlington and Quincy R. R. Co. v. Griffin, 68 Id. 499. Messrs. DOYLE, MORRIS & STEARNS, for the appellee:

It is the duty of a carrier to protect his passenger from violence and insult, from whatever source, and more especially from his own servants. Goddard v. Grand Trunk Ry. Co. 57 Maine, 202; Howe v. Newmarch, 12 Allen, 115; Angell & Ames on Corporations, 404; Moore v. Railroad, 4 Gray, 365; Seymour v. Greenwood, 7 Hurl. & Nor. 354; Railroad v. Finney, 10 Wis. 388; Railroad v. Arendiver, 42 Pa. St. 356; Weed v. Railroad, 17 N. Y. 362; Railroad v. Derby, 14 How. 468; Railroad v. Hinds, 53 Pa. 512; Flint v. Transportation Co. 34 Conn. 554; Landreaux v. Bell, 5 La. (O. S.) 275; Nieto v. Clark, 1 Cliff. 145; Chamberlain v. Chandler, 3 Mass. 242; Bryant v. Rich, 106 Id. 180; Chicago and Northwestern Ry. Co. v. Croaker, 36 Wis. 657; Keokuk Northern Line Packet Co. v. True, 88 Ill. 608.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought by James Flexman, against appellant, to recover damages for personal injuries inflicted upon him while a passenger in appellant's cars, by a brakeman in the employ of the company.

The plaintiff, as appears from the evidence, procured a ticket from Hoopeston to Milford, and took passage on a freight train which carried passengers. Soon after plaintiff entered the car he laid down in a seat and went to sleep. When the train arrived at Milford he was notified by the conductor. As plaintiff was about to leave the car he missed his watch, and supposed it had been stolen. He then refused to leave the train until he recovered the watch, and the conductor consented that he might remain on the train until they should reach Watseka. After the train had started, a passenger assisted plaintiff in making a partial search for the watch, but it was not then found. The passenger then inquired of plaintiff who he thought had his watch, to which he replied, “That fellow,” pointing at the brakeman. Immediately after the remark was made the brakeman struck plaintiff in the face with a railroad lantern, inflicting the injuries complained of. These are substantially the facts, over which there is no controversy by the parties.

After the plaintiff had introduced all his testimony, the defendant entered a motion to exclude the evidence from the jury, and asked for an order directing the jury to find a verdict for defendant. The court denied the motion, and the defendant excepted. This decision of the court presents the question whether the facts proven, conceding them to be true, constitute a cause of action against the defendant.

The point is made that as plaintiff only paid fare to Milford he ought not to be regarded as a passenger on the train after he left that place. We do not regard this position well taken. The conductor did not demand or require fare from the plaintiff; had he done so, no doubt the required amount would have been paid. As the conductor failed to call for fare, it must be regarded as waived. At all events, we have no hesitation in holding that the railroad company occupied the same position towards plaintiff that it would have occupied had he paid his fare.

But it is said, “that if the plaintiff was injured by a servant of appellant, it was an act outside of the employment of the servant who committed the act, and not in furtherance of his employment by the master.” This position is predicated upon McManus v. Cricket, 1 East, 106, and like cases which have followed it. In the case cited Lord KENYON said: “It is laid down by HOLT, Ch. J., as a general position, ‘that no master is chargeable with the acts of his servant but when he acts in the execution of the authority given him.’ Now, when a servant quits sight of the object for which he is employed, and without having in view his master's orders pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and, according to the doctrine of Lord HOLT, his master will not be answerable for such act.” The doctrine announced is no doubt correct when applied to a proper case. If, for example, a conductor or brakeman in the employ of a railroad company should willfully or maliciously assault a stranger,--a person to whom the railroad company owed no obligation whatever,--the master in such a case would not be liable for the act of the servant; but when the same doctrine is invoked to control a case where an assault has been made by the servant of the company upon a passenger on one of its trains, a different question is presented--one which rests entirely upon a different principle.

What are the obligations and duties of a common carrier toward its passengers? In Keokuk Northern Line Packet Co. v. True, 88 Ill. 608, it was held that a steamboat company, as a carrier of passengers for hire, is, through its officers and servants, bound to the utmost practicable care and diligence to carry its passengers safely to their place of destination, and to use all reasonably practicable care and diligence to maintain among the crew of the boat, including deck hands and roustabouts, such a degree of order and discipline as may be requisite for the safety of its passengers. The same rule that governs a steamboat company must also be applied to a railroad company, as the duties and obligations resting upon the two are the same, or any other company which carries passengers for hire. In Goddard v. Grand Trunk Ry. Co. ...