road company has been held not liable for the locking of the door of a water-closet on a female passenger through a mere accident, and her consequent confinement therein for a few minutes,17 and, in the absence of proof that sufficient time had elapsed to charge the servants with notice of its presence, and to give them a reasonable opportunity to remove it, the railroad company was held not liable for injuries caused by slipping on snow or ice,18 vomit19 or mud,20 which had been deposited on the steps or platforms of the cars while en route. But the rule as to regular inspection of railroad vehicles while N. Y. 488, 18 N. E. Rep. 859, 2 L. yond a reasonable expectation of R. A. 252. performance to require a railroad ccrporation to do so." In this case the car in question had a well and safely constructed platform provided with all the conveniences and appliances ordinarily used to afford safety and comfort to its occupants, with proper and convenient steps and hand-rails. During a night trip, in a storm of sleet and snow, a thin covering of ice had formed upon the platform, upon which a passenger, who had several times passed over it and knew of its condition, slipped and was injured. "The presence of snow or ice upon exposed places on moving cars is an accident of the hour, and no ordinary diligence could, during the prevalence of a storm, wholly remove its effects from the places exposed to its action, so as to prevent accidents to heedless and in attentive travelers. A passenger on a railroad train has no right to assume that the effects of a continuous storm of snow, sleet, rain or hail will be immediately and effectually removed from the exposed platform of the car while making its passage between stations or the termini of its route, and it would be an obligation be 17. Gulf, etc. R'y Co. v. Smith, 10 Tex. Civ. App. 338, 30 S. W. Rep. 361. 18. Palmer v. Railroad Co., 111 N. Y. 488, 18 N. E. Rep. 859, 2 L. R. A. 252. No legal duty is imposed upon a railroad company to remove ice from the railing or platform of the front end of the express car, or to make such platform safe for passengers to get on or ride upon the same. Railway Co. v. Allender, 59 Ill. App. 620; s. c. 47 Ill. App. 484. In Railway Co. v. Aldridge, 27 Ind. App. 498, 61 N. E. Rep. 741, the plaintiff knew of the presence of snow and ice on the rear platform, and that the conductor was stationed at the front end of the car to assist passengers in alighting, but he persisted in getting off at the rear end. He was held guilty of such contributory negli gence as would bar a recovery. 19. Proud v. Railroad Co., 64 N. J. L. 702, 46 Atl. Rep. 710, 50 L. R. A. 468. 20. Vanclever. Railroad Co., 107 Mo. App. 96, 80 S. W. Rep. 706. at rest is much stricter than that relating to their inspection while in motion. Such inspection must then be made as is consistent with that degree of engineering skill and experience required in the careful and prudent operation of railroads; and for any injury resulting from the company's failure to so inspect its vehicles, it will be liable. Under circumstances of more than ordinary peril, as in case of violent storms or floods, the railroad company must inspect its vehicles with more than ordinary promptitude, particularly those parts which are the most apt to become, defective from such causes. The greater the peril, the greater is the vigilance demanded.21 And this vigilance extends to the inspection of sleeping cars owned by another company which the railroad company invites its passengers to use.22 5. Duty as to servants employed. Sec. 958. (§ 533.) Responsibility for the character of servants employed. It is equally important and imperative that the employees or servants of the carrier shall be competent, attentive and sufficiently skilled for the performance of the duties to which they may be assigned. As to the responsibility of coach proprietors in this respect, it was said by Best, J., that "the coachman must have competent skill, and must use that skill with diligence; he must be well acquainted with the road he undertakes to drive; he must be provided with steady horses, a coach and harness of sufficient strength, and properly made; and also with lights by night. If there be the least failure in any one of these things, the duty of the coach 21. Libby v. Railroad Co., 85 Me. 34, 26 Atl. Rep. 943, 20 L. R. A. 812; Keating v. Railroad Co., 104 Mich. 418, 62 N. W. Rep. 575. If snow and ice were on the steps of a car before the train started, and the steps were in such a condition that some one was likely to slip upon them, the jury is warranted in finding that their condition ought to have been remedied at the earliest practicable moment. Gilman v. Railroad Co., 168 Mass. 454, 47 N. E. Rep. 193. 22. Robinson v. Railroad Co., 135 Mich. 254, 97 N. W. Rep. 689. proprietors is not fulfilled, and they are answerable for any injury or damage that happens. "23 And this definition of the diligence required of such carriers has been substantially re And when the route peated in a number of American cases.24 or journey upon which he is employed is one more than ordinarily exposed to the danger of attacks by robbers and outlaws, the driver, besides being competent in other respects, must be cool, self-possessed, prudent, and of good judgment and forethought.25 Sec. 959. (§ 534.) Same subject-Liable for their negligence, imprudence or incompetency. For any carelessness, imprudence or incompetency of the driver, the proprietor will of course be liable to the same extent as for his own. It has accordingly been held that if, of two ways, the driver, with knowledge of the fact, select the one which is the more hazardout;26 or if the accident be caused by racing or improper speed;27 or if he fail to caution the passengers when passing over a part of the road more than ordinarily dangerous;28 or if through his negligence the passenger is put in a position of danger, in the attempt to escape from which he is injured, 29 even though if he had remained quiet and made no effort to extricate himself from the supposed danger, he would have re 23. Crofts v. Waterhouse, 3 road by showing that the injured Bing. 319. 24. McKinney v. Neil, 1 McLean, 540; Tuller v. Talbot, 23 Ill. 357; Farish v. Reigle, 11 Gratt. 697; Frink v. Coe, 4 G. Greene (Iowa), 555; Stokes v. Saltonstall, 13 Pet. 181; Benner Livery Stable Co. v. Busson, 58 Ill. App. 17. passenger directed or expressed a wish to travel over such road. Budd v. Carriage Co., 25 Ore. 314, 35 Pac. Rep. 660, 27 L. R. A. 279. 27. Mayor v. Humphries, 1 C. & P. 251. 28. Maury v. Talmadge, 2 McLean, 157; Laing v. Colder, 8 Penn. 25. Holladay v. Kennard, 12 St. 479; Dudley v. Smith, 1 Camp. Wall. 254. 26. Mayhew v. Boyce, 1 Starkie, 423. The carrier cannot escape liability for an injury caused by driving a team over an unsafe 167. 29. Stokes v. Saltonstall, 13 Pet. 181; Ingalls v. Bills, 9 Met. 1; Jones v. Boyce, 1 Stark. 493; Caswell v. The Railroad, 98 Mass. 194. ceived no injury;30 or if the accident be attributable to the intoxication of the driver the carrier is responsible.31 Sec. 960. (§ 535.) Same subject-Companies and corporations liable. As to companies and corporations, by which by far the greater part of the business of the carriage of passengers is now done, and which necessarily act through agents, the law will recognize no distinction when the question is one of negligence between such agents and their principals, except so far as the remedy is concerned; and in questions of liability for injuries occasioned by negligence or incompetency between such carriers and their passengers, the officers and agents of the former will be identified with their principals, and the question of negligence, unfitness or incompetency to which the injury is referred will be treated as one between the injured passenger and the officer or agent himself,32 and such companies will be regarded as constructively present in all acts performed by their agents and servants within the range of their ordinary employments.33 And when such carriers 30. Eldridge v. The Railroad, 1 Sand. 89; Railroad v. Aspell, 23 Penn. St. 147; Buel v. The Rail road, 31 N. Y. 314; Dimmitt v. Railroad Co., 40 Mo. App. 654, citing Hutch. on Carr. In Ephland v. Railway Co., 71 Mo. App. 597; s. c. 57 Mo. App. 147, a brakeman wantonly terrified passengers by calling out, "Jump for your lives!" and by rushing to the brakes. The plaintiff believed himself to be in imminent danger, jumped off the train and was injured. The railroad company was held liable, although there was a strong dissenting opinion on the ground that the brakeman was not acting within the scope of his authority. 31. Frink v. Coe, 4 Greene (Iowa), 555. lins, 2 Duvall, 114; Pittsburg, etc. R. R. v. Duby, 38 Ind. 294; Railway Co. v. Brown, 113 Ga. 414, 38 S. E. Rep. 989. The captain of a vessel is a general agent of the owner, but his authority does not extend beyond the transactions and concerns within the scope and business of his principal. The shipowner will not be liable in damages to a passenger therefore when the master gratuitously undertakes to deliver a telegram to a passenger. Davies v. Steamboat Co., 94 Me. 379, 47 Atl. Rep. 896, 53 L. R. A. 239. 33. Bass v. The Railway, 36 Wis. 450; Washburn v. The Railroad, 3 Head, 638; Taillon v. Mears, 29 Mont. 161, 74 Pac. Rep. 421. If an employe of the carrier neg 32. Louisville, etc. R. R. v. Col- ligently pushes or crowds a pas employ for the carriage of their passengers steam power, and undertake to convey them by railroads and steam vessels, in which mode of carriage the least omission of duty or want of necessary skill or promptness may be attended with the most. disastrous results, they will be required to exercise even more circumspection, if possible, than carriers by other modes of conveyance, in the selection of their employees. As said by Grier, J., in the case of The Philadelphia & Reading Railroad v. Derby,34 "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 intrusting 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 intrusted. 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."35 Sec. 961. (§ 536.) Same subject-Liability for knowingly retaining unfit servants-Ratification.-And if, with knowledge of his incompetency, unfitness, or intemperate habits, such carriers employ a servant, or retain him in the management of any portion of their business upon which the safety of senger, who is about to alight, from the car, and an injury follows, the carrier is liable when the employe is acting in the line of his duty. Schimpf v. Harris, 185 Pa. St. 46, 39 Atl. Rep. 820. 34. 14 How. 468. 35. And see Carpue v. The Railway, 5 Ad. & El. (N. S.) 747. |