Moore v. Fitchburg Railroad , 70 Mass. 465 ( 1855 )

Thomas, J.

This is an action of tort, and comes up upon exceptions to the rulings of the presiding judge.

1. It is too well settled for discussion, that an action for a tort may be maintained against a corporation. Thayer v. Boston, 19 Pick. 511, and cases cited.

2. There is no difficulty in joining the corporation with their servant in the same action. Had there been any difficulty, the verdict has relieved it. With the consistency of the verdict, in charging the one and discharging the other, we have nothing to do, upon these exceptions.

3. The instructions as to the liability of the defendant corporation for the acts of their servant'were favorable to the corporation. The only point upon which a doubt might be suggested would be upon the second clause of the instructions, that if the company authorized the conductor to put out of the cars passengers who had not paid their fare, and he put out persons who had paid their fare, the company would not be responsible for his acts. If a passenger who has paid his fare, and conducts himself well, is removed by the servant of the company, having charge and control of the train, it is difficult to see how the company could escape responsibility for his act. See Philadelphia & Reading Railroad v. Derby, 14 How. 468.

The want of instructions in relation to the right of the conductor to remove the plaintiff, if intoxicated, or using profane language, is not the subject of exception. We cannot presume that proper instructions were not given. If the defendants desired specific instructions upon this point, they should have made their request to the presiding judge, and, if he refused, excepted to such refusal.

Exceptions overruled.