transport hi passengers, but to use every reasonable effort to transport them safely. This contract, and the common law duty incident thereto, often render the carrier liable for his servant's torts, which are committed without a shadow of authority, and wholly outside of the master's business. Nothing could be further removed from the course of a railroad conductors' employment, or from the carrier's business, than the kissing of female passengers, and yet the carrier must answer in tort for the assault and battery of a conductor who kisses a female passenger against her will.278 So he must answer for any tortious conduct of his servants towards passengers, which violates his duty towards them.279 This duty extends to the exercise of a high degree of care in guarding them against the assaults of strangers.280 He is not an insurer of their safety281 against other passengers, or outsiders, nor even against his servants, but he is bound to use every reasonable effort to maintain order and discipline among his servants, as well as among passengers and those who are upon his premises and conveyances.282

relations with plaintiff determined the scope of the employment. Pittsfield Cottonware Co. v. Pittsfield Shoe Co., 71 N. H. 522, 53 At. 807, 60 L. R. A. 116 (1902); Steele v. May, 135 Ala. 483, 33 So. 30 (1902).

279 Croaker v. Chicago & N. W. Ry., 36 Wis. 657, 17 Am. R. 504 (1875).

270 Birmingham Ry. v. Baird, 130 Ala. 334, 30 So. 456, 89 Am. St. R. 43 (1901); Savannah, etc., Ry. v. Quo, 103 Ga. 125, 29 S. E. 607, 68 Am. St. R. 85 (1897); Keokuk, etc., Co. v. True, 88 Ill., 608 (1878); Chicago, etc., Ry. v. Flexman, 103 Ill., 546, 42 Am. R. 33 and note (1882); McKinley v. Chicago & N. W. Ry., 44 Ia. 314, 24 Am. R. 748 (1876); Wabash Ry. v. Savage, 110 Ind. 156, 9 N. E. 85 (1886); Missouri Pac. Ry. v. Divinney, 66 Ks. 776, 71 Pac. 855 (1903); Spangler v. St. Joseph, etc., Ry., 68 Ks. , 74 Pac. 607, 63 L. R. A. 634 (1903); Shirley v. Billings, 8 Bush (71 Ky.) 147, 8 Am. R. 451 (1871); Goddard V. Grand Tk. Ry., 57 Me. 202, 2 Am. R. 39

(1869); Bryant v. Rich, 106 Mass. 180, 8 Am. R. 311 (1870); New Orleans, etc., Ry. v. Burke, 50 Miss. 200 (1874); Dwinell v. N. Y. C. Ry., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. R. 611 (1890); Haver v. Cent. Ry., 62 N. J. L. 282, 41 At. 916, 43 L. R. A. 84, 72 Am. St. R. 647 (1898); White v. Norfolk, etc., Ry., 115 N. C. 631, 20 S. E. 191, 44 Am. St. R. 489 (1894); Seawell v. Car. Cent. Ry., 133 N. C. 515, 44 S. E. 610 (1903); Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139, 15 Am. St. R. 753, 3 L. R. A. 634 (1889); Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S. W. 557, 46 L. R. A. 549 (1899).

250 Chic. & A. Ry. v. Pillsbery, 123 fll., 9, 14 N. E. 22, 5 Am. St. R. 483 (1887); Snow v. Fitchburg Ry., 136 Mass. 552, 49 Am. R. 40 (1884); Carpenter v. Boston & A. Ry., 97 N. Y. 494, 49 Am. R. 540 (1884).

251 Fritz v. Southern Ry., 133 N. C. 725, 44 S. E. 613 (1903).

252 Mullan V. Wis. Ry. Co., 46

A similar duty rests upon the proprietor of a liquor saloon, or other place where intoxicants are publicly sold.283 He has "the undoubted right to exclude therefrom drunken and disorderly persons, and the right to remove and expel them when they become in that condition and disorderly, and likely to produce discord and brawls. Being clothed with such power, a corresponding duty to do so in the interests of law and order, and for the protection of his other guests, should be imposed as a matter of law." 284

Again, a person who puts into the hands of a servant a dangerous instrumentality, is under a common-law duty to see that the servant properly guards or uses it.285 A parent is under a similar duty. when he places dangerous instruments in the hands of his children, although they are not his servants in dealing with them.286

Tort Liability of Master to Servant. This is measured by the master's legal duty towards his servant. For any unjustifiable invasion of the servant's personal rights, the master is answerable precisely as he would be to a stranger.287 In some cases,—rather

(1891);

Minn. 475, 49 N. W. 249
New Orleans, etc., Ry. v. Burke, 53
Miss. 200, 24 Am. R. 689 (1876).

283 Curran v. Olson, 88 Minn. 307, 92 N. W. 1124, 60 L. R. A. 733 (1903).

284 Mustad v. Sweedish Brethren, 83 Minn. 40, 85 N. W. 913, 53 L. R. A. 803 (1901); Roumel v. Schambacker, 120 Pa. 579, 11 At. 779 (1887). Contra Belding v. Johnson, 86 Ga. 177, 12 S. E. 304, 11 L. R. A. 53 (1890).

285 Tex., etc., Ry. v. Scoville, 62 Fed. 730, 23 U. S. App. 506, 10 C. C. A. 479, 27 L. R. A. 179 (1894); Alsever v. Minn., etc., Ry., 115 Ia. 338, 88 N. W. 841, 56 L. R. A. 748 (1902); Pittsburg, etc., Ry. v. Shields, 47 0. St. 387, 24 N. E. 658, 8 L. R. A. 464, 21 Am. St. R. 840 (1890); Cobb v. Columbia, etc., Ry., 37 S. C. 194, 15 S. E. 878 (1892); Erie Ry. Co. v. Salisbury, 66 N. J. L. 233, 50 At. 117, 55 L. R. A. 578 (1901); Enting v. Chic. & N. W. Ry., 116 Wis. 13, 42

N. W. 358, 60 L. R. A. 158 (1902), holding master liable for servant's misconduct with torpedos, locomotive whistle, with push-car, etc. Contra, Stephen v. So. Pac. Ry., 93 Cal. 558, 29 Pac. 234, 27 Am. St. R. 223 (1892). And when the servant takes possession of such dangerous instrumentality and uses it without the master's authority, the latter is not liable: Sullivan v. Louisville & Nashville Ry., 115 Ky. 447, 74 S. W. 171 (1903).

256 Chaddock v. Plummer, 88 Mich. 225, 50 N. W. 135, 14 L. R. A. 675 with note (1891).

257 Loveless v. Standard Gold Min. Co., 116 Ga. 427, 42 S. E. 741 (1902); Odin Coal Co. v. Denman, 185 Ill., 413, 57 N. E. 192, 76 Am. St. R. 45 (1900); Lorentz v. Robinson, 61 Md. 64 (1883); Troxler v. Sou. Ry., 124 N. C. 189, 32 S. E. 550, 44 L. R. A. 313, 70 Am. St. R. 580 (1899); Russell v. Dayton Coal Co., 109 Tenn. 43, 70 S. W. 1 (1902); Norfolk, etc., Ry.

289

rare at the present time, the master is entitled to discipline a servant,288 and, within certain limits, to defame him.2 But, as a rule, a master is under the same legal duty to refrain from harming his servant that rests upon him towards strangers.200

SPECIAL DUTIES OF MASTER TOWARDS SERVANT.

(1) To Employ Suitable Fellow Servants. The relationship between them imposes upon the master certain special duties towards the servant, which may be classified as follows: First, to use reasonable care in selecting suitable and sufficient co-servants, including superintendents. He is not a guarantor of their competency and fitness. He is bound to exercise due care, however, in securing a sufficient number of competent servants; 291 but if, after such due care, injury happen to a servant through the unfitness or negligence of a fellow servant, the master is not liable therefor.292 Of course, if the master is informed of a servant's incompetency, and thereafter retains him, he is violating his duty towards other servants and may be liable to them in damages; 293 provided, the injury is due to the incompetence or unfitness of the servant in

v. Houchins, 95 Va. 398, 28 S. E. 578, 46 L. R. A. 359, 64 Am. St. R. 791 (1897).

288 The Agincourt, 1 Hagg. 271 (1824); Butler v. McClellan, 1 Ware (U. S.) 220 (1831); The Stacy Clarke, 54 Fed. 533 (1892). See Masters of Vessels, 20 Am. & Eng. Cyc. of Law, pp. 203-207 (2d Ed.).

2 Child v. Affleck, 9 B. & C. 403 (1829).

200 In some cases, the fact of an accident carries with it no presumption of negligence on the part of the master towards his injured servant, although it would towards certain others, such as passengers, in whose behalf there is prima facie a breach of his contract to carry safely. Patton v. Texas, etc., Ry., 179 U. S. 658, 21 Sup. Ct. 275 (1900).

291 Louisville, etc., Ry. Co. v. Davis,

91 Ala. 487, 8 So. 552 (1890); Kelly v. New Haven Steamboat Co., 74 Conn. 343, 50 At. 871 (1902); Louisville, etc., Ry. v. Semonis, (Ky.), 51 S. W. 612 (1899); Cheney v. Ocean Steamship Co., 92 Ga. 726, 19 S. E. 33, 44 Am. St. R. 113 (1893); Portance v. Lehigh Valley Co., 101 Wis. 574, 579, 77 N. W. 875, 70 Am. St. R. 932 (1899).

292 The Antonio Zambrana, 89 Fed. 60 (1898); Weeks v. Sharer, 111 Fed. 330, 49 C. C. A. 372 (1901); Relyea v. Kansas City Ry., 112 Mo. 86, 20 S. W. 480 (1892); Reichel v. N. Y. Cent. Ry., 130 N. Y. 682, 29 N. E. 763, 42 N. Y. St. R. 510 (1892).

203 Metropolitan, etc., Co. v. Fortin, 203 Ill., 454, 67 N. E. 977 (1903); Brown v. Levy, 108 Ky. 163, 55 S. W. 1079 (1900); Norfolk & W. Ry. v. Hooven, 79 Md. 253, 29 At. 994, 25 L.

question.294 The burden of proof, however, is upon the plaintiff to show the master's negligence in selecting or continuing incompetent servants. The mere fact that they turn out to be incompetent does not tend to establish a prima facie case of negligence on the master's part.295

(2) Duty to Establish and Promulgate Proper Rules. That this duty rests upon the master, whenever such rules are feasible and will serve to minimize the risk of a hazardous employment, is well settled. If the business involves no exercise of peculiar skill, nor the use of dangerous machinery, nor extra hazard to the servant, rules for the performance of the work are unnecessary.296 In other lines of business it may be a question for the jury, whether rules and regulations should be made and enforced.297 In still others, the conditions may be so complex and the hazard to the servant so great, that the master's failure to establish proper rules and to insist upon their observance will amount to a clear violation of his legal duty.298 Perhaps no better statement of the principles, defining and regulating this duty, has been made than the following: The duty of a master in making rules is measured by the law of ordinary diligence. That law varies with the situation, for what would be ordinary diligence under one set of facts would be negligence in another. If, however, under the circumstances of a

299 66

R. A. 710 and note, 47 Am. St. R. 392 (1894); Lamb v. Littman, 128 N. C. 361, 38 S. E. 911, 53 L. R. A. 852 (1901).

24 Norfolk, etc., Ry. v. Phillips, 100 Va. 362, 41 S. E. 726 (1902).

295 Stafford v. Chicago B. & T. Ry., 116 Ill., 244 (1885); Roblin v. Kansas City, etc., Ry., 119 Mo. 476, 24 S. W. 1011 (1894).

296 Texas, etc., Ry. v. Echos, 87 Tex. 339, 27 So. 60 (1894); Olsen v. Nor. Pac. L. Co., 40 C. C. A. 427, 100 Fed. 384 (1900); Gila Valley, etc., Ry. v. Lyon (Ariz.), 71 Pac. 957 (1903); Morgan v. Hudson, etc., Ore Co., 133 N. Y. 666, 31 N. E. 234 (1892).

297 McGovern v. Central Vt. Ry., 123 N. Y. 280, 25 N. E. 373 (1890);

Ford v. Lake Shore, etc., Ry., 124 N. Y. 493, 26 N. E. 1101, 12 L. R. A. 454 (1891).

20s Kansas City Ry. v. Hammond, 58 Ark. 324, 24 S. W. 723 (1894); Judkins v. Maine Central Ry., 80 Me. 417, 14 At. 735 (1888); Lake Shore, etc., Ry. v. Lavalley, 36 0. St. 221 (1880); Hartvig v. Nor. Pac. L. Co., 19 Or. 522, 25 Pac. 358 (1890); Lewis v. Seifert, 116 Pa. 628, 647, 11 At. 514, 2 Am. St. R. 631 (1887); Madden v. Cheseapeake Ry., 28 W. Va. 610, 57 Am. R. 695 (1886); Smith v. Baker (1891), A. C. 325.

290 Devoe v. New York, etc., Ry., 174 N. Y. 1, 66 N. E. 568 (1903). Consult also Nolan v. N. Y. & C. Ry., 70 Conn. 159, 39 At. 115, 43 L. R. A.

particular case, the master has met the obligation of ordinary diligence in making and enforcing a rule, he is free from liability,300 even if some other rule would have been safer and better. The law requires him to make and promulgate reasonably safe and proper rules, and if he does so he is not liable, even if he might have made safer and more effective rules."

66

Test of Sufficiency of Rules: If a rule is actually made, the question still remains whether it is proper and sufficient under the circumstances, for due diligence is not satisfied by an insufficient and inadequate rule.301 There is an essential difference between rules made by a master for his own protection and the regulation of his business in his own interest, and those made for the protection of his servants; for, in the one case, the sufficiency affects no one but himself, while in the other, the lives and limbs of his servants are involved. *** It may be that where the situation is simple and entirely free from complications the sufficiency of the rules made even to protect employees would be a question of law. When, however, the situation is complicated, the question of sufficiency of the rules, as well as of the manner of their promulgation, "is for the jury. ***What is reasonable and proper under a complicated state of facts permitting diverse inferences, is a question of fact."

For Court or Jury? It must be confessed, that the diversity of judicial opinion upon the last point in the foregoing extract is irreconcilable. In the case quoted from, a minority of the court. dissented, holding 302 that "the question as to whether a rule is reasonable and proper is a question for the court, and not for the jury." "Of course," said the dissenting judges, "in cases where the facts with reference to the nature and contents of the rule are not clearly established, or are to be determined from controverted

305 with full note (1898), and Hill v. Boston & M. Ry., 72 N. H. 578, 57 At. 924 (1904).

300 Smith v. Chic., etc., Ry., 91 Wis. 503, 65 N. W. 183 (1895); Ball v. Hauser, 129 Mich. 397, 89 N. W. 49 (1902).

201 Vose v. Lancashire, etc., Ry., H. & N. 728 (1858); Memphis, etc., Ry. v. Graham, 94 Ala. 545, 10 So. 283 (1891); Dowd v. N. Y. O. & W. Ry., 170 N. Y. 459, 63 N. E. 541

(1902); Willis v. Atlantic, etc., Ry., 122 N. C. 905, 29 S. E. 941 (1898). Nor is the master protected if he sanctions the habitual disregard of the rules by his servants. Hunn v. Mich. Cent. Ry., 78 Mich. 513, 526, 44 N. W. 502, 7 L. R. A. 500 (1889); McNee v. Coburn, etc., Co., 170 Mass. 283, 49 N. E. 437 (1898).

302 Devoe v. N. Y., etc., Ry., 174 N. Y. pp. 12, 13.