New England Express Company v. Maine Central Railroad Company.

meet such accident or to supply such necessity; but it is that they may lawfully select one individual or corporation upon whom they may confer exclusive and valuable privileges to the exclusion and injury of the rest of the community.

It is argued that the contract between the defendant corporation and the Eastern Express Company, it being made before the passage of the act of 1868, is a bar to the plaintiffs' right to recover. But such cannot be the case, unless the defendants had the right to grant terms, facilities and accommodations" unreasonable and unequal as between the different express companies desiring the transportation of their goods, merchandise, etc., over their railroad. But this cannot be claimed. Further, if such a contract were to be held an answer to the plaintiffs' claim, on the ground that the legislature had no right to impair its validity, then it would follow, that they might be ousted of their control and jurisdiction during the whole existence of the defendant corporation; for the defendants might have made their contract co-extensive in time with their corporate existence.

Provisions similar to those of 1868 exist in England, and the courts have ever held all acts of undue preference void, while they have sustained the railroad corporations, when they have only the interests of the proprietors and the legitimate increase of the profits of the railway in view. It is not a legitimate ground for giving preference to one of the customers of a railway company, that he engages to employ other lines of the company for the carriage of traffic distant from, and unconnected with, the goods in question; and it is undue and unreasonable to charge more or less for the same service, according as the customer of a railway thinks proper or not to bind himself to employ the company on other and totally distinct business. In re Baxendale v. The G. W. R. R. Co., 94 E. C. L. 308. But in that case a difference of charge was sustained upon goods from and to the same places, between persons who sent large quantities at a time, and stipulated to send given large quantities every year, and others who declined to do so. "The advantages there stipulated for and by the company," observes WILLES, J., "related to the carriage of the goods upon the same line, and directly affected the rate at which they could be profitably carried. In fact those advantages made a difference similar to that between the selling of goods wholesale and retail, the profit of carrying goods in large quantities and at the less rate at which they were carried,

New England Express Company v. Maine Central Railroad Company.

equaling or exceeding the profit upon the goods sent in smaller quantities at the greater rate at which they were carried." In re Garton v. Bristol & Exeter R. R. Co., 95 E. C. L. 655, WILLES, J., says: "As to the third branch of the case, viz.: that a lower charge is made by the company to persons residing at Bridgewater for the carriage of goods than is made to the complainants, no satisfactory reason seems to me to have been given for that reduction. It is not shown that it is rendered necessary for the purpose of meeting and overcoming competition.** The inequality of charge cannot be without a reason; and I am at a loss to see any other possible reason than a desire on the part of the defendants to displace the complainants as carriers, so that they themselves may become the sole carriers on their line of railway." Where a statute requires a railway company to carry for all who may apply and upon equal terms, they have no right to impose increased prices upon express carriers who sent freight by the company's trains, in aggregate quantities made up of small parcels directed to different individuals. Pickford v. Grand Junction Railway, 10 M. & W. 399. Much less have they a right to carry for one express company and refuse to carry for another, when they have the ability to carry for both.

In In re Mariott v. The London & South-western Railway Co., 87 E. C. L. 498, the defendant railway company made arrangements at one of their stations with A., the proprietor of an omnibus running between the station and K., to provide omnibus accommodations for all passengers by their trains to and from K., and allowed A. the exclusive privilege of driving his vehicle into the stationyard for the purpose of taking up and setting down passengers at the door of the booking-office. "I am of opinion," observes CockBURN, C. J., "that in giving an undue and unreasonable preference to and in favor of Williams brings the company within the provisions of the statute in question. 18 Vict. c. 31, § 2. I see no reason why this preference should be given to one omnibus and to the exclusion of another. *** I therefore think the rule should be made absolute, to the extent of enjoining the company to admit the complainant's omnibus into the station of this railway at all reasonable times, for the purpose of receiving and setting down passengers and goods, in the same manner, and to the same extent, as other public vehicles of a similar description are admitted into the yard for that purpose." In Piddington v. S. E. Railway Co., 94 E. C. L

New England Express Company v. Maine Central Railroad Company. 109, the defendants made an increased charge upon "packed par cels." The jury negatived that they incurred an additional risk or expense on the carriage thereof. "Here," remarks BYLES, J., "the defendants charge double for certain packages, though the goods are of a like description, and the jury have found there is no increased risk or expense incurred by them in the carriage of them. That seems to me to be an express violation of the 17th section." In Sanford v. Railway Co., 24 Penn. 378, it was held that express companies had as good a right to the benefits of a railroad as the owners of the packages which they carried personally had, and that a contract giving to an express company an exclusive right of transportation on the passenger trains was illegal and void, both at common law and by the statutes of the state. "Whenever," observes LEWIS, C. J., "a charter is granted for the purpose of constructing a railroad, the corporation is clothed with the power to take private property, in order to carry out the object, it is an inference of law from the extent of the power conferred, and the subject-matter of the grant, that the road is for the public accommodation. The right to take tolls is the compensation to be received for the benefits conferred. If the public are entitled to these advantages, it results from the nature of the right that the benefits should be extended to all alike, and that no special privileges should be granted to one man or set of men, and denied to others. The special stipulations inserted in charters, for the purpose of securing these rights, are placed there in abundance of caution, and affirm nothing more than the common right to equal justice, which exists independent of such provisions. *** The supposed necessity for such provisions, in charters granted in this country and in England, proves nothing more than that the law-makers in both countries were aware of the difficulty in holding large corporations to those common obligations of justice which individuals feel bound to acknowledge without legislative enactment."

The plaintiff is entitled to maintain his action.

Defendant defaulted. Damages to be assessed by the judge at nisı prius.

Goddard v. Grand Trunk Railway Company.

GODDARD V. GRAND TRUNK RAILWAY CO., appellants.

(57 Maine, 202.)

Carriers Liability of, for willful misconduct of servants-Measure of

damage.

The plaintiff, a passenger in defendants' railway car, gave up his ticket to a brakeman, who was authorized to demand and receive it. Shortly after the latter approached plaintiff, denied that he had received his ticket, and assaulted and grossly insulted him. In an action against the railway company to recover damages, — Held, that the defendants were liable, and that plaintiff could recover exemplary damages. (TAPLEY, J., dissented on the question of damages.)

The defendants having retained the brakeman in their employ after notice of his conduct, the court refused to set aside as excessive a verdict for $4,850.

THE action was trespass for an assault by defendant's servant upon plaintiff. The court at the trial charged, in substance, that if the facts sworn to by plaintiff were found to be true, the defendant was liable, and that it was a proper case for punitive or exemplary damages. The jury returned a verdict of $4,850. The other facts are stated in the opinion.

G. F. Shepley, for plaintiff.

P. Barnes, for defendant.

WALTON, J. Two questions are presented for our consideration: first, is the common carrier of passengers responsible for the willful misconduct of his servant; or, in other words, if a passenger, who has done nothing to forfeit his right to civil treatment, is assaulted and grossly insulted by one of the carrier's servants, can he look to the carrier for redress? and, secondly, if he can, what is the measure of relief which the law secures to him? These are questions that deeply concern, not only the numerous railroad and steamboat companies engaged in the transportation of passengers, but also the whole traveling public; and we have endeavored to give them that consideration which their great importance has seemed to us to demand.

I. Of the carrier's liability. It appears in evidence, that the plaintiff was a passenger in the defendants' railway car; that, on

Goddard v. Grand Trunk Railway Company.

request, he surrendered his ticket to a brakeman employed on the train, who, in the absence of the conductor, was authorized to demand and receive it; that the brakeman afterward approached the plaintiff, and, in language coarse, profane and grossly insulting, denied that he had either surrendered or shown him his ticket; that the brakeman called the plaintiff a liar, charged him with attempting to avoid the payment of his fare, and with having done the same thing before, and threatened to split his head open and spill his brains right there on the spot; that the brakeman stepped forward and placed his foot upon the seat on which the plaintiff was sitting, and, leaning over the plaintiff, brought his fist close down to his face, and, shaking it violently, told him not to yip, if he did he would spot him; that he was a damned liar; that he never handed him his ticket; that he did not believe he paid his fare either way; that this assault was continued some fifteen or twenty minutes, and until the whistle sounded for the next station; that there were several passengers present in the car, some of whom were ladies, and that they were all strangers to the plaintiff; that the plaintiff was at the time in feeble health, and had been for some time under the care of a physician, and at the time of the assault was reclining languidly in his seat; that he had neither said nor done any thing to provoke the assault; that, in fact, he had paid his fare, had received a ticket, and had surrendered it to this very brakeman who delivered it to the conductor only a few minutes before, by whom it was afterward produced and identified; that the defendants were immediately notified of the misconduct of the brakeman, but, instead of discharging him, retained him in his place; that the brakeman was still in the defendants' employ when the case was tried and was present in court during the trial, but was not called as a witness, and no attempt was made to justify or excuse his conduct.

Upon this evidence the defendants contend that they are not liable, because, as they say, the brakeman's assault upon the plaintiff was willful and malicious, and was not directly nor impliedly authorized by them. They say the substance of the whole case is this, that "the master is not responsible as a trespasser, unless, by direct or implied authority to the servant, he consents to the unlawful act."

The fallacy of this argument, when applied to the common carrier of passengers, consists in not discriminating between the obli