Fisher v. City of Boston.

mer or mayor and aldermen. 29. So where a distinct fire department is established in a village or district, the district may raise money for the purchase of engines and other necessary apparatus, and for incidental expenses; but the charge and management thereof are imposed upon the engineers and other officers, when elected. §§ 33, 40, 41, 43. The firewards, engineers and other similar officers are not the servants or agents of the city or town, but are public officers, for whose acts in their official capacity the city or town or fire district is not made responsible, except in the single case of the pulling down of a building to prevent the spreading of a fire. §§ 5, 41. Taylor v. Plymouth, 8 Metc. 462.

Gen. Sts., ch. 24, §§ 4, 6, 7, 9, 13, 26,

Nor is it material that in the city of Boston a fire department has been established and is regulated under a special statute, accepted by the city council. St. 1850, ch. 262. The engineers and members of that department are no less public officers, and no more agents of the city, than firewards and similar officers under the General Statutes. In the leading case of Hafford v. New Bedford, 16 Gray, 297, the fire department, for the negligence of whose members the city was held not to be liable to an action, was established and regulated, and its officers and members appointed, under a similar Epecial statute.

This case is not like that of an act done by the city for its own corporate advantage and immediate emoluments, as in Oliver v. Worcester, 102 Mass. 489; or in constructing or repairing a common sewer, laid under authority of a statute voluntarily accepted by the corporation, which permits the assessment of a contribution to the expense thereof upon the abutters, as in Emery v. Lowell, ante, 13. But it comes precisely within the rule laid down in Hafford v. New Bedford, and since applied to various similar cases. Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, id. 172 Barber v. Roxbury, 11 id. 318; Barney v. Lowell, 98 Mass. 570. Demurrer sustained.

NOTE-See Wheeler v. Olty of Cincinnati, 8 Am. Rep. 368 (19 Ohio St. 19).- REP.

Ramsden v. Boston & Albany R. R. Co.

RAMSDEN, plaintiff, v. BOSTON & ALBANY R. R. Co.

(104 Mass. 117.)

Railroad company — responsibility for acts of conductors. Master and servant.

Where a railroad conductor attempts to seize articles of property in the hands of a passenger for the purpose of enforcing payment of fare, the corporation is liable to an action of assault and battery.

TORT for an assault and battery. The judge below made the following report:

"The plaintiffs introduced evidence tending to show that the female plaintiff got on board the defendants' cars at Newton Corner, for the purpose of going to West Newton in an evening train; that she paid the fare to the conductor; that afterward the conductor demanded the fare again; that she said she had before paid it; that the conductor told her she lied; that the conversation between them was in a loud tone; that the attention of people in the cars was attracted by it; that she was confused and shamed and excited by it; that the conductor demanded of her that she should give him her parasol to keep as security, or as payment for the fare; that she refused; that he took hold of it, and, after somewhat of a struggle, took it away from her; and that, by reason of this, the said plaintiff, a few days afterward, was prematurely delivered of a child, and had suffered much in health.

"After the testimony for the plaintiffs was concluded, the judge announced to the counsel that at the conclusion of the case, whenever that should be, the rulings would be as follows; and that, after hearing them, the counsel upon the one side or the other might proceed or not with the case to the jury, as they might elect. These are the rulings: Upon the pleadings, the action is tort in the nature of trespass for an assault. In order to maintain the action, the plaintiffs must show that an assault was committed upon the female plaintiff. A conductor, by virtue of his implied authority as such, that being the only authority shown in this case, has no right to seize articles of property belonging to a passenger for the purpose of thus enforcing the payment of fare. And if a conductor does this, or attempts to do this, and, in so doing, and for the sole purpose of

Ramsden v. Boston & Albany R. R. Co.

seizing such property, commits an assault on a passenger, the corporation is not responsible in trespass for such acts.' Upon the announcement of these rulings, with the foregoing statement made by the judge to the counsel, the plaintiff's counsel consented to a verdict for the defendants."

1. D. Van Duzee, for plaintiffs.

G. S. Hale, for defendants, cited Ashaelot Manufacturing Co. v. Marsh, 1 Cush. 507; Howe v. Newmarch, 12 Allen, 49; Poulton v. London & Southwestern Railway Co., Law Rep., 2 Q. B. 534; Roe v. Birkenhead, Lancashire & Cheshire Junction Railway Co., 7 Exch. 36; Eastern Counties Railwag Co. v. Broom, 6 id. 314; Lyons v Martin, 8 Ad. & El. 512; Aldrich v. Boston & Worcester Railroad Co., 100 Mass. 31; Ayrcrigg v. New York & Erie Railroad Co., 1 Vroom. 460; Wilson v. Peverly, 2 N. H. 548; Church v. Mansfield, 20 Conn. 284; Thames Steamboat Co. v. Housatonic Railroad Co., 24 id. 40; Brown v. Purvance, 2 Har. & Gill. 316; Oxford v. Peter, 28 Ill. 434.

*

GRAY, J. A railroad corporation is liable, to the same extent as an individual would be, for an injury done by its servant in the course of his employment. Moore v. Fitchburg Railroad Co., 4 Gray, 465; Hewitt v. Swift, 3 Allen, 420; Holmes v. Wakefield, 12 id. 580. If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is willful or merely negligent (Howe v. Newmarch, 12 Allen, 49), or even if it is contrary to an express order of the master. Philadelphia & Reading R. R Co. v. Derby, 14 How. 468

The conductor of a railroad train, from the necessity of the case, represents the corporation in the control of the engine and cars, the regulation of the conduct of the passengers as well as of the subordinate servants of the corporation, and the collection of fares He may even eject a passenger for not paying fare. O'Brien v. Beston & Worcester Railroad Co., 15 Gray, 20. It has been adjudged by this court that if, in the exercise of his general discretionary authority, he wrongfully ejects a passenger who has in fact paid his fare; or uses excessive and unjustifiable force in ejecting a passenger who has not paid his fare, and injures him by a blow or kick, or y compelling him to jump off while the train is in motion; in either VOL VI.

26

Hill Manufacturing Co. v. Boston & Lowell R. R. Co.

case, the corporation is liable. Moore v. Fitchburg Railroad Co Hewitt v. Swift, and Holmes v. Wakefield, above cited.

We are all of opinion that this case cannot be distinguished in principle from those just mentioned. The use of unwarrantable violence in attempting to collect fare of the plaintiff was as much within the scope of the conductor's employment as the exercise or threat of unjustifiable force in ejecting a passenger from the cars. Neither the corporation nor the conductor has any more lawful authority to needlessly kick a passenger, or make him jump from the cars when in motion, than to wrest from the hands of a passenger an article of apparel or personal use, for the purpose of compelling the payment of fare. Either is an unlawful assault; but if committed in the exercise of the general power vested by the corporation in the conductor, the corporation, as well as the conductor, is liable to the party injured. In Monument National Bank v. Globe Works, 101 Mass. 59, Mr. Justice HOAR said: "No corporation is empowered by its charter to commit an assault and battery; yet it has frequently been held accountable in this commonwealth for one committed by its servants."

The ruling of the learned judge who presided at the trial, that if a conductor, in seizing, or attempting to seize, articles of property belonging to a passenger, for the purpose of thus enforcing the payment of fare, committed an assault upon the passenger, the corpora tion was not responsible for such acts, was therefore erroneous.

*COLT, J., did not sit in this case.

Verdict set aside.

HILL MANUFACTURING CO., plaintiff, v. BOSTON & LOWELL R. R. Co,

(104 Mass. 122.)

Common carrier — liability beyond line. Delivery. United States Statutes · construction of.

A railway company may by contract assume to carry goods beyond its own line and where such contract exists, the company will be liable as common car. riers for the entire route.

Hill Manufacturing Co. v. Boston & Lowell R. R. Co.

The liability of a common carrier, as such, does not terminate until notice has been given to the consignee of the arrival of the goods, and a reasonable time has elapsed for their removal.

The United States statutes of 1851, chapter 43, exempting the owners and char terers of vessels, from responsibility for losses arising from accidental fires, does not apply to expressmen or other common carriers who avail themselves of steamboats and other vessels for the transportation of packages in the fulfillment of contracts under which they assume the common-law liability.

CONTRACT to recover the value of goods. The goods were shipped May 22, 1868, by the Lowell Bleachery, agents of plaintiffs, by defendant's railway at Boston, for New York. The goods were transported by defendants to the end of their line. They were thence transported unnecessarily over the Worcester & Nashua Railroad, the Providence & Worcester Railroad and the Providence & New York steamship line to New York. The steamer with the goods on board arrived at New York on Sunday morning, May 24; and at about noon the steamer, lying at the wharf, took fire and the goods were greatly damaged. The case was submitted. The opinion states the remaining essential facts.

I. S. Abbott, for plaintiffs, cited Najac v. Boston & Lowell Rail road Co., 7 Allen, 329; Fitchburg & Worcester Railroad Co. v. Hanna, 6 Gray, 539; Simkins v. Norwich & New London Steamboat Co., 11 Cush. 102; Cobb v. Abbott, 14 Pick. 289; Weed v. Saratoga & Schenectady Railroad Co., 19 Wend. 534; Fairchild v. Slocum, id. 329; Champion v. Bostwick, 18 id. 175; Hart v. Rensselaer & Saratoga Railroad Co., 4 Seld. 37; Quimby v. Vanderbilt, 17 N. Y. 306; Illinois Central Railroad Co. v. Copeland, 24 Ill. 332; Mytton v. Midland Railway Co., 4 Hurlst. & Norm. 615; Bristol & Exeter Railway Co. v. Collins, 7 H. L. Cas. 194.

E. R. Goulding, for defendants, cited Nutting v. Connecticut River Railroad Co., 1 Gray, 502; Darling v. Boston & Worcester Railroad Co., 11 Allen, 295; Gass v. New York, Providence & Boston Railroad Co., 99 Mass. 220; Burroughs v. Norwich & Worcester Railroad Co., 100 id. 26; Naugatuck Railroad Co. v. Waterbury Button Co., 24 Conn. 468; Elmore v. Naugatuck Railroad Co., 23 id. 457; Hood v. New York & New Haven Railroad Co., 23 id. 1; Farmers & Mechanics' Bank v. Champlain Transportation Co., 18 V. 131, and 23 id. 186; Van Santvoord v. St. John, 6 Hill, 157;