Ramsden v. Boston & Albany Railroad , 104 Mass. 117 ( 1870 )

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 Wakefield, 12 Allen, 580. If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is wilful or merely negligent; Howe v Newmarch, 12 Allen, 49 ; or even if it is contrary to an express order of the master. Philadelphia & Reading Railroad 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. Boston 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 by compelling him to jump off while the train is in motion; in either 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 the 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 corporation was not responsible for such acts, was therefore erroneous. - Verdict set aside.

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