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saults whatsoever by any employee whatever.3 This is sometimes spoken of as exceptional; but as a matter of fact the apparently extreme liability of the public company in such cases is part of the general duty to protect those in its charge. Indeed, it may help in understanding the law to say that every servant of the company has the duty to protect patrons from injury by himself as well as injury by third parties.

69. Protection from third parties.—Moreover, those engaged in the public services which involve the charge of persons and their belongings are under a stringent liability to use the utmost care in their protection from such injuries from third parties as they ought to have foreseen and could have prevented. This is because there is a special duty to protect patrons from insult by third parties, whoever they may be. Indeed the law is very exacting as to all this, holding the carrier or innkeeper liable for injuries by third parties which ought to have been anticipated. A distinction, it should be noted, is made in these cases which was not made in the preceding paragraph. Wherever, for instance, the trainmen take no steps to protect the hand luggage of a passenger from theft, the company will be held liable.35 But where a sudden attack is made upon the passenger which the conductor had no reason to anticipate he is not liable if he cannot get to the aid of the passenger in time.3 A railroad is liable for

34 Chesapeake & O. Ry. Co. v. Francisco, 149 Ky. 307, 148 S. W. 46. 35 Hasbrouck v. New York C. & H. R. R. Co., 202 N. Y. 363, 95 N. E. 808. 36 Putnam v. Broadway & S. A. R. R. Co., 55 N. Y. 108.



assault on a passenger in the waiting room only if the conditions in that locality are such as to require constant guard to be kept.37 But surely a carrier should not abandon a non-union workingman to a mob which is demanding him, even if this might make it safer for other passengers.

70. Avoidance of threatened harm. In particular there are many cases describing the liability which carriers are under to protect their patrons while in their charge from injuries to them by their fellow passengers which there was reason to anticipate, either from general circumstances or from particular facts. Injury to passengers resulting from overcrowding at stations is danger for which the carrier is bound to answer and could have taken measures to prevent.3 If so many are taken on board a car that one of the passengers is subsequently crowded off, the carrier is liable, for it should not have permitted the car to get so dangerously overcrowded.40 Speaking generally, the carrier must use the utmost care in protecting passengers from all evil doers whatsoever, and there are many well considered cases which support this view; but none of them fail to impose the qualification that the wrong or injury done the passenger by such strangers must have been perpetrated under such circumstances that it might reasonably have been


37 Batton v. So. & No. Ala. R. R. Co., 77 Ala. 591, LEADING ILLUSTRATIVE CASES.

88 Chicago & A. R. R. v. Pillsbury, 123 Ill. 9. 39 Pray v. Omaha St. Ry. Co., 44 Neb. 167.

40 Dittmar v. Brooklyn Heights R. R. Co., 91 App. Div. 378 (N. Y.), 86 N. Y. Supp. 878.

anticipated. Thus a carrier will be liable for injury to passengers by a mob only when the facts were known to it in time to have taken effective action. And the owners of a sleeping car will not be held liable for the assassination of a passenger while the car is standing in the station.42

71. Injuries outside the employment.—When the assault committed by the employees is at some other place than the premises of the company, to which this special duty to protect does not extend, the company may escape liability. Thus where a person waiting for a car outside the car barn was assaulted by an employee the company was not held responsible.43 But where a conductor hurled a passenger from a car and followed this by an attack upon him in the street it was all held a continuous assault for which the company was liable.44 Upon similar principles the company is not responsible for failing to protect those who have no business relations with it. Thus it owes no affirmative duty to furnish protection to sightseers upon its premises; nor need it provide protection for passengers after a reasonable time has passed for them to leave the premises.45 Still less is it liable for wrong done to a former passenger by a trainman away from the premises of the carrier after the transportation is 72. Peculiar protection under special circumstances.- In certain callings peculiar care is owed patrons because of the extent to which they intrust themselves to the proprietors. An innkeeper who, without warning, allowed a guest to come to a house where there was a contagious disease was held responsible to a guest who contracted that disease. 47 Similarly a sleeping-car company is bound to keep continual watch by night to protect sleeping passengers from harm.48 Indeed in the case of sleeping cars there is a cumulative liability; the passenger who can show a failure to take every precaution for his safety having the right to sue either the car company or the railroad company. In emergencies, it should be added, every ordinary course should be set aside. Where a passenger is stricken with violent illness a train should be stopped at the next place where medical attendance can be obtained."9 And where peaches are rotting the carrier may take the extraordinary step of selling them on the spot.

over. 46

41 Pounder v. Northeastern R. R., (1892) 1 Q. B. 385 (Eng.). 42 Connell's Ex 'rs. v. Chesapeake & 0. R. R. Co., 93 Va. 44, 24 S. E. 467. 43 Palmer v. Winston-Salem Ry. & Elect. Co., 131 N. C. 250, 42 S. E. 604. 44 Peeples v. Brunswick & A. R. R. Co., 60 Ga. 281. 45 Chicago & A. Ry, Co. v. Tracey, 109 Ill. App. 563. 46 Missouri K. & T. R. R. Co. v. Pope, 149 S. W. 1185 (Tex.).



47 Gilbert v. Hoffman, 66 Iowa 205, 23 N. W. 632. 48 Campbell v. Pullman P. C. Co., 42 Fed. 484. 49 Central of Ga. Ry. Co. v. Madden, 135 Ga. 205, 69 S. E. 165. 50 American Express Co. v. Smith, 33 Oh. St. 511.



73. Proper theory of liability.—The basis of liability for losses happening in the undertaking is not altogether uniform. What complicates the matter is that the standard of liability for some services differs materially from that of other services. In common carriage and innkeeping our law has for a long time held the proprietors practically liable absolutely as insurers for loss of the goods intrusted to them. To this liability as an insurer, however, there are, as will be seen, at least four well-established exceptions—the act of God, the king's enemies, vice of the goods, and interference of the patron. In all other public callings the most that the law holds the proprietor liable for under any circumstances is the highest practicable standard of care. It should, however, be emphasized that the liability as an insurer imposed upon the carrier and the innkeeper is as abnormal in public service as it is in private business. It is imposed only upon carriers of goods, not upon carriers of passengers; it applies to the protection of the guest's belongings, not of his person. It is not applied to any other public callings, however similar they may be to carriage and innkeeping; and it is only imposed when the service in question is being rendered upon a basis that such service is of a public nature.

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