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U.S. Supreme Court

Philadelphia & Reading Railroad Company v. Derby, 55 U.S. 14 How. 468 468 (1852)

Philadelphia & Reading Railroad Company v. Derby

55 U.S. (14 How.) 468




Where a suit was brought against a railroad company by a person who was injured by a collision, it was correct in the court to instruct the jury that if the plaintiff was lawfully on the road, at the time of the collision, and the collision and consequent injury to him were caused by the gross negligence of one of the servants of the defendants, then and there employed on the road, he was entitled to recover notwithstanding the circumstances that the plaintiff was a stockholder in the company, riding by invitation of the President, paying no fare, and not in the usual passenger cars.

And also that the fact that the engineer having the control of the colliding locomotive, was forbidden to run on that track at the time, and had acted in disobedience of such orders, was no defense to the action.

A master is liable for the tortious acts of his servant, when done in the course of his employment, although they may be done in disobedience of the master's orders.

This was an action on the case brought by Derby, for an injury suffered upon the railroad of the plaintiff in error.

The declaration, in ten counts, was, in substance, that on the 15th day of June, 1848, the defendants, being the owners of the railroad, and of a certain car engine called the Ariel, received the plaintiff into the said car, to be safely carried therein, upon, and over the said railroad, whereby it became the duty of the defendants to use proper care and diligence that the plaintiff should be safely and securely carried, yet, that the defendants, not regarding their duty in that behalf, conducted themselves so negligently by their servants, that, by reason of such negligence, while the car engine Ariel was upon the road, and the plaintiff therein, he was precipitated therefrom upon the ground, and greatly injured. Defendants pleaded not guilty.

On the 22d of April, 1851, the cause came on to be tried, and the evidence was, in substance, as follows:

In the month of June, 1848, the plaintiff, being a stockholder in the said railroad company, came to the City of Philadelphia, for the purpose of inquiring into its affairs, on his own account and as the representative of other stockholders. On the 15th of June, 1848, the plaintiff accompanied John Tucker, Esq., the president of the said company, over the railroad, for the purpose of viewing it and the works of the company.

They proceeded in the ordinary passenger train of the company, from the City of Philadelphia, the plaintiff paying no fare for his passage as far as the City of Reading.

On arriving at Reading, the plaintiff inspected the machine shops of the defendants, there situate, and remained for that purpose about half an hour after the departure of the passenger

Page 55 U. S. 469

train towards Pottsville, which latter place is about the distance of ninety-two miles from Philadelphia.

By order of Mr. Tucker, a small locomotive car engine, called the Ariel was prepared for the purpose of carrying the plaintiff and Mr. Tucker further up the road. This engine was not constructed, or used, for the business of the said defendants, but was kept for the use of the President and other officers of the company, their friends and guests.

On this engine, the plaintiff and Mr. Tucker, accompanied by the engineer and fireman, and a paymaster of defendants, proceeded, following the passenger train, until they reached Port Clinton, a station on the line of the railroad.

After leaving Port Clinton, when about three miles distant from it, going round a curve, the passengers on the Ariel saw another engine called the Lycoming, of which S. P. Jones was the conductor, approaching on the same track. The engineer of the Ariel immediately reversed his engine, and put down the brake. Mr. Tucker, the plaintiff, and the fireman, jumped from the Ariel to avoid the impending collision. After they had jumped, the engineer also left the Ariel, having done all he could do to stop it. The plaintiff, in attempting to jump, fell, and received the injury of which he complains.

The engineer of the Lycoming, when he saw the approach of the Ariel, reversed his engine and put down the brake. He did not leave the Lycoming till after the collision. At the time of the collision, the Lycoming was backing. The engines were but slightly injured by it.

On the night of the 14th or the morning of the 15th of June, a bridge, on the line of the railroad above Port Clinton, was burnt. In consequence of this, one of the tracks of the railroad was blocked up by empty cars returning to the mines, and stopped by the destruction of the bridge. For this reason a single track only could be used for the business of the road between Port Clinton and the burnt bridge.

Lewis Kirk, an officer of the said company, master machinist and foreman, went on in the passenger cars from Reading, towards Pottsville, informing the plaintiff and Mr. Tucker, that he would give the proper orders to have the track kept clear for the Ariel. On arriving at Port Clinton, he did give an order to Edward Burns, dispatcher at Port Clinton, an officer of said company, charged with the duty of controlling the starting of engines, that no car should be allowed to go over the road until he the said Kirk returned.

This order was communicated in express terms by Burns to Jones, the conductor of the Lycoming. Jones replied that he would go, and would take the responsibility, and, contrary to

Page 55 U. S. 470

his orders, did go up the road towards the burnt bridge, and on his return met the Ariel, and the collision ensued, as above stated. Jones had the reputation of being a careful and competent person, no previous disobedience of orders by him had ever occurred, and he was discharged by the defendants immediately after the accident, and because of it.

On the trial, the plaintiff below requested the court to charge the jury:

"I. That if the plaintiff was lawfully upon the railroad of the defendants at the time of the collision, by the license of the defendants, and was then and there injured by the negligence or disobedience of orders of the company's servants, then and there employed on the said railroad, the defendants are liable for the injury done to the plaintiff by such collision."

"II. That if the defendants by their servants, undertook to convey the plaintiff along the Reading Railroad, in the car Ariel, and while so conveying, him, through the gross negligence of the servants of the company then and there employed on the said railroad, the collision occurred, by which the plaintiff was injured, that the defendants are liable for the injury done to the plaintiff by such collision, although no compensation was to be paid to the company for such conveyance of the plaintiff."

"III. That if the collision, by which the plaintiff was injured, was occasioned by the locomotive Lycoming, then driven negligently or in disobedience of orders upon the said road by J. P. Jones, one of the company's servants, then having control or command of the said locomotive, that the defendants are liable for the injury to the plaintiffs, caused by such collision."

And the counsel for the defendants below requested the court to charge the jury:

"1. That the damages, if any are recoverable, are to be confined to the direct and immediate consequences of the injury sustained."

"2. That if the jury believe the plaintiff had paid no fare, and was passing upon the railroad of the defendant as an invited guest, in order to entitle him to recover damages he must prove gross negligence, which is the omission of that care which even the most thoughtless take of their own concerns."

"3. That the defendants would be liable in damages to a passenger who had paid passage money upon their contract to deliver him safely, for slight negligence, but to an invited guest, who paid no fare or passage money, they will not be responsible unless the jury believe that there was not even slight diligence on the part of the agents of the defendants."

"4. That the employer is not responsible for the willful act of his servant. "

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"5. That if the jury believe that the conductor of the engine Lycoming willfully, and against the express orders of the officer of the company communicated to him, by running his engine upon the track above Port Clinton, caused the collision, the defendants are not responsible for any injury or loss resulting from such willful disobedience."

"6. That if the jury believe that every reasonable and proper precaution was taken to have the track of the railroad clear for the passage of the Ariel, and collision ensued solely be reason of the willful disobedience of the conductor of the Lycoming, and of the express orders duly given by an agent of the company, the plaintiff cannot recover."

"7. That if the jury believe that the conductor of the Lycoming, and all the officers of the company in any wise connected with the collision, were carefully and prudently selected, and that the collision ensued and the injury resulted to the plaintiff, an invited guest, by the willful disobedience of one of them to an order duly communicated, then the plaintiff cannot recover."

The learned judge charged the jury as requested, on all the points offered by the plaintiff.

And the learned judge charged on the first and second points offered by the defendants, as requested, and also on the third point of the defendants, with the explanation, that though all the other agents of the defendants acted with diligence, yet if one of the agents used no diligence at all, then the defendants could not be said to have shown slight diligence.

As to the fourth point, the learned judge charged as requested by the defendants, with this explanation, that though the master is not liable for the willful act of his servant, not done in the course of his employment as servant, yet if the servant disobeys an order relating to his business, and injury results from that disobedience, the master is liable, for it is his duty to select servants who will obey. The disobedience in this case is the ipsa negligentia, for it is not pretended by the defendants that the Lycoming was intentionally driven against the Ariel.

On the fifth, sixth, and seventh points of the defendants, the learned judge refused to charge as requested.

The learned judge further said, that it is admitted that the plaintiff was injured through the act of Jones, the conductor of the Lycoming, that the plaintiff was lawfully on the road by the license of the defendants; then, in this view of the case, whether he paid fare or not, or was the guest of the defendants, made no difference as to the law of the case.

The jury found a verdict for the plaintiff, and assessed the damages at three thousand dollars.

A writ of error brought the case up to this Court.

Page 55 U. S. 483

MR. JUSTICE GRIER delivered the opinion of the Court.

This action was brought by Derby, the plaintiff below, to recover damages for an injury suffered on the railroad of the plaintiffs in error. The peculiar facts of the case, involving the questions of law presented for our consideration, are these:

The plaintiff below was himself the president of another railroad company, and a stockholder in this. He was on the road of defendants by invitation of the president of the company, not in the usual passenger cars, but in a small locomotive car used for the convenience of the officers of the company, and paid no fare for his transportation. The injury to his person was caused by coming into collision with a locomotive and tender, in the charge of an agent or servant of the company, which was on the same track, and moving in an opposite direction. Another agent of the company, in the exercise of proper care and caution, had given orders to keep this track clear. The

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driver of the colliding engine acted in disobedience and disregard of these orders, and thus caused the collision.

The instructions given by the court below at the instance of plaintiff, as well as those requested by the defendant and refused by the court, taken together, involve but two distinct points which have been the subject of exception here, and are in substance as follows:

1. The court instructed the jury that if the plaintiff was lawfully on the road at the time of the collision, and the collision and consequent injury to him were caused by the gross negligence of one of the servants of the defendants then and there employed on the road, he is entitled to recover notwithstanding the circumstances given in evidence and relied upon by defendant's counsel as forming a defense to the action, to-wit, that the plaintiff was a stockholder in the company, riding by invitation of the president -- paying no fare, and not in the usual passenger cars &c.

2. That the fact that the engineer having the control of the colliding locomotive was forbidden to run on that track at the time, and had acted in disobedience of such orders, was not a defense to the action.

1st. In support of the objections to the first instruction, it is alleged,

"That no cause of action can arise to any person by reason of the occurrence of an unintentional injury while he is receiving or partaking of any of those acts of kindness which spring from mere social relations, and that as there was no contract between the parties, express or implied, the law would raise no duty as between them for the neglect of which an action can be sustained."

In support of these positions, the cases between innkeeper and guest have been cited, such as 1 Rolle's Abr. 3, where it is said,

"If a host invite one to supper, and the night being far spent, he invites him to stay all night, and the guest be robbed, yet the host shall not be chargeable, because the guest was not a traveler,"

and Cayle's Case, 4 Rep. 52, to the same effect, showing that the peculiar liability of an innkeeper arises from the consideration paid for his entertainment of travelers, and does not exist in the case of gratuitous lodging of friends or guests. The case of Farwell v. Boston & Worcester Railroad Company, 4 Metcalf 47, has also been cited, showing that the master is not liable for any injury received by one of his servants in consequence of the carelessness of another while both are engaged in the same service.

But we are of opinion that these cases have no application to the present. The liability of the defendants below for the negligent and injurious act of their servant is not necessarily

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founded on any contract or privity between the parties, nor affected by any relation, social or otherwise, which they bore to each other. It is true, a traveler by stage coach or other public conveyance who is injured by the negligence of the driver has an action against the owner founded on his contract to carry him safely. But the maxim of respondeat superior, which by legal imputation makes the master liable for the acts of his servant, is wholly irrespective of any contract, express of implied or any other relation between the injured party and the master. If one be lawfully on the street or highway and another's servant carelessly drives a stage or carriage against him and injures his property or person, it is no answer to an action against the master for such injury, either, that the plaintiff was riding for pleasure or that he was a stockholder in the road, or that he had not paid his toll, or that he was the guest of the defendant, or riding in a carriage borrowed from him, or that the defendant was the friend, benefactor, or brother of the plaintiff. These arguments, arising from the social or domestic relations of life may in some cases successfully appeal to the feelings of the plaintiff, but will usually have little effect where the defendant is a corporation, which is itself incapable of such relations or the reciprocation of such feelings.

In this view of the case, if the plaintiff was lawfully on the road at the time of the collision, the court were right in instructing the jury that none of the antecedent circumstances, or accidents of his situation, could affect his right to recover.

It is a fact peculiar to this case that the defendants, who are liable for the act of their servant coming down the road, are also the carriers who were conveying the plaintiff up the road, and that their servants immediately engaged in transporting the plaintiff were not guilty of any negligence or in fault for the collision. But we would not have it inferred from what has been said that the circumstances alleged in the first point would affect the case if the negligence which caused the injury had been committed by the agents of the company who were in the immediate care of the engine and car in which the plaintiff rode, and he was compelled to rely on these counts of his declaration, founded on the duty of the defendant to carry him safely. This duty does not result alone from the consideration paid for the service. It is imposed by the law even where the service is gratuitous. "The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it." See Coggs v. Bernard and cases cited in 1 Smith's Leading Cases 95. It is true, a distinction has been taken in some cases between simple negligence and great or gross negligence, and it is said that one who

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acts gratuitously is liable only for the latter. But this case does not call upon us to define the difference, if it be capable of definition, as the verdict has found this to be a case of gross negligence.

When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of "gross."

In this view of the case also we think there was no error in the first instruction.

2. The second instruction involves the question of the liability of the master where the servant is in the course of his employment, but, in the matter complained of, has acted contrary to the express command of his master.

The rule of respondeat superior, or that the master shall be civilly liable for the tortious acts of his servant, is of universal application whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable, and it makes no difference that the master did not authorize or even know of the servant's act or neglect, or even if he disapproved or forbade it -- he is equally liable if the act be done in the course of his servant's employment. See Story on Agency § 452; Smith on master and Servant 152.

There may be found in some of the numerous cases reported on this subject dicta which, when severed from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examination will show that they depended on the question whether the servant, at the time he did the act complained of, was acting in the course of his employment -- or in other words whether he was or was not at the time in the relation of servant to the defendant.

The case of Sleath v. Wilson, 9 Car. & Payne 607, states the law in such cases distinctly and correctly.

In that case a servant, having his master's carriage and horses in his possession and control, was directed to take them to a certain place, but instead of doing so, he went in another direction to deliver a parcel of his own, and, returning, drove against an old woman and injured her. Here the master was held liable for the act of the servant though, at the time he committed the offense, he was acting in disregard of his

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master's orders; because the master had entrusted the carriage to his control and care, and in driving it, he was acting in the course of his employment. Mr. Justice Erskine remarks in this case:

"It is quite clear that if a servant, without his master's knowledge, takes his master's carriage out of the coach house and with it commits an injury, the master is not answerable, and on this ground, that the master has not entrusted the servant with the carriage; but whenever the master has entrusted the servant with the control of the carriage, it is no answer that the servant acted improperly in the management of it. If it were, it might be contended that if a master directs his servant to drive slowly, and the servant disobeys his orders and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law; the master in such a case will be liable, and the ground is that he has put it in the servant's power to mismanage the carriage by entrusting him with it."

Although among the numerous cases on this subject some may be found, such as the case of Lamb v. Palk, 9 C. & P. 629, in which the court have made some distinctions which are rather subtle and astute as to when the servant may be said to be acting in the employ of his master, yet we find no case which asserts the doctrine that a master is not liable for the acts of a servant in his employment, when the particular act causing the injury was done in disregard of the general orders or special command of the master. Such a qualification of the maxim of respondeat superior would in a measure nullify it. A large proportion of the accidents on railroads are caused by the negligence of the servants or agents of the company. Nothing but the most stringent enforcement of discipline and the most exact and perfect obedience to every rule and order emanating from a superior can insure safety to life and property. The entrusting such a powerful and dangerous engine as a locomotive to one who will not submit to control and render implicit obedience to orders is itself an act of negligence, the "causa causans" of the mischief, while the proximate cause, or the ipsa negligentia which produces it, may truly be said in most cases to be the disobedience of orders by the servant so entrusted. If such disobedience could be set up by a railroad company as a defense when charged with negligence, the remedy of the injured party would in most cases be illusive, discipline would be relaxed, and the danger to the life and limb of the traveler greatly enhanced. Any relaxation of the stringent policy and principles of the law affecting such cases would be highly detrimental to the public safety.

The judgment of the circuit court is therefore


Page 55 U. S. 488

MR. JUSTICE DANIEL dissents from the decision of this Court in this cause, upon the ground that, the said railroad company being a corporation created by the State of Pennsylvania, is not capable of pleading or being impleaded under the 2d section of the 3d article of the Constitution in any of the courts of the United States, and that therefore the circuit court could not take cognizance of the controversy between that corporation and the plaintiff in that court.


This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this Court that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs and interest until the same is paid at the same rate per annum that similar judgments bear in the courts of the State of Pennsylvania.

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