negligent failure of the agent to fulfill the principal's contract, the principal is not liable for the malicious breach by the agent, of the contract which he was appointed to perform for the principal; as we understand it, that if one hire out his dog to guard sheep against wolves, and the dog sleep while a wolf makes away with a sheep, the owner is liable; but if the dog play wolf and devour the sheep himself, the owner is not liable. The bare statement of the proposition seems a reductio ad absurdum."

§ 939. Action outside of the employment.

For acts altogether outside of the employment there is in accordance with the general principle no liability, but it must be a very extreme case indeed in order to come within this saying. Only if the act is at some different time than the hours of duty, or at some different place than the premises of the company, may we have a case of private wrong by the employé disconnected from his general duty to protect the patron. Such cases of wholly independent private wrong may occur. Thus where the employé of a street railway assaulted a person who was outside the car barn waiting for a car the company was not held responsible. And in a closer case 2 where the assault was committed by the driver after the passenger left the car for the purpose of making a complaint at the company's office and had reached the sidewalk, it was held that the company was not responsible. On general principles, however, wherever an altercation begun upon the cars is continued upon the street so that it may be said

'McGilvray v. West End St. Ry. Co., 164 Mass. 122, 41 N. E. 116 (1895).

See also Palmer v. WinstonSalem Ry. & Elec. Co., 131 N. C. 250, 42 S. E. 604 (1902).

2 Central Ry. Co. v. Peacock, 69 Md. 257, 14 Atl. 709, 9 Am. St. Rep. 425 (1888).

But see Missouri Pacific Ry. Co. v. Divinney, 66 Kan. 776, 71 Pac. 855 (1903).

to be a continuous assault the company is liable.1 This was particularly true in a dramatic case where the conductor hurled a passenger off the car and assaulted him.2 It may often be a close question of fact whether the assault was made upon one who was then having business relations with the company. And indeed it is sometimes doubtful for what company the agent is acting. There are certain cases which hold that the company is only liable for the assaults of those employés whose duty it is to protect passengers during their hours of duty, but the weight of authority is overwhelmingly the other way."

5

§ 940. Cumulative liability where two services involved. Where the patron is receiving two services simultaneously, there may be a case of cumulative liability. This is well brought out in the case of an assault upon a pas

1 McQuerry v. Metropolitan St. Ry. Co., 117 Mo. App. 255, 92 S. W. 912 (1906).

See also Blomsness v. Puget Sound El. Ry. Co., 47 Wash. 620, 92 Pac. 414, 17 L. R. A. (N. S.). 763 (1907).

2 Peeples v. Brunswick & A. R. R. Co., 60 Ga. 281 (1878).

See also Wise v. Covington & C. St. Ry. Co., 91 Ky. 537, 16 S. W. 351 (1891).

3 Bowen v. Illinois Central R. R. Co., 136 Fed. 306, 69 C. C. A. 444, 70 L. R. A. 915 (1905).

4 Columbus Ry. Co. v. Christian, 97 Ga. 56, 25 S. E. 411 (1895).

5 United States.-Bowen v. Illinois Central Ry. Co., 136 Fed. 306, 69 C. C. A. 444, 70 L. R. A. 915 (1905), express agent.

Illinois.-Henson v. Urbana &

C. St. Ry. Co., 75 Ill. App. 474 (1897), motorman.

6 Georgia.-Georgia R. R. & Bk. Co. v. Richmond, 98 Ga. 495, 25 S. E. 565 (1896), baggage master.

Indiana.-Wabash Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85 (1886), brakeman.

Kentucky. Sherley v. Billings, 8 Bush (Ky.), 147, 8 Am. Rep. 451 (1871), clerk.

Massachusetts.-Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311 (1870), waiter.

New York.-Steward v. Brooklyn & C. T. R. R. Co., 90 N. Y. 588 (1882), car driver assaulted passenger maliciously. Railroad held liable.

Wisconsin.-Fick v. Chicago & N. W. Ry. Co., 68 Wis. 469, 32 N. W. 527, 60 Am. Rep. 878 (1887), ticket agent.

senger riding in a sleeping car by an employé of the car company. It is plain that the car company is liable for failing in its duty to protect its patron when one of its employés employed for the very purpose of protecting him, commits an assault upon him. Furthermore the railroad company is liable for the assault upon the passenger by the employé of the car company.2 The railroad company remains liable to protect its passenger throughout the journey, and it cannot delegate its responsibility in that respect to the car company and escape liability thereon.

Topic C. Protection against Injury by Third Parties § 941. Limited extent of the duty.

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. The carrier or innkeeper ought not to admit to its conveyances or premises disorderly or dangerous persons who it might see are likely to cause harm to its patrons. This is because there is a special duty to protect passengers from insult by third parties whether intruders or fellow passengers.3 Campbell v. Pullman P. C. Co.,

1

3

By the general principle the carrier is liable if he is negligent in not preventing the injury. See the language in:

United States.-Brown v. Chicago, R. I. & P. Ry. Co., 139 Fed. 972, 72 C. C. A. 20 (1905).

Alabama.-Birmingham Ry. & E. Co. v. Baird, 130 Ala. 334, 30 So. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43 (1900).

Arkansas. St. Louis, I. M. & So. Ry. Co. v. Wilson, 70 Ark. 136, 66 S. W. 661, 91 Am. St. 74 (1902). Connecticut.-Flint v. Norwich

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. Of the same nature is the duty to protect its patrons from exposure to indecent approach or scenes of violence. If these duties are neglected without good cause and a passenger receives injury, which might have been reasonably anticipated or naturally expected, from one who is improperly received or permitted to continue as a passenger, the carrier is responsible.1

§ 942. Protection against fellow passengers.

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 they had reason to anticipate, either from general circumstances or from particular facts.2

& N. Y. Transp. Co., 34 Conn. 554 (1868).

Georgia. Savannah, F. & W. Ry. Co. v. Boyle, 115 Ga. 836, 42 S. E. 242, 59 L. R. A. 104 (1902).

Maryland.-United Rys. & E. Co. v. Deane, 93 Md. 619, 49 Atl. 923, 54 L. R. A. 942, 86 Am. St. Rep. 453 (1901).

Missouri.-Woas v. St. Louis Transit Co., 198 Mo. 664, 96 S. W. 1011, 7 L. R. A. (N. S.) 231 (1906).

Nebraska.-Bevard V. Lincoln Traction Co., 74 Neb. 802, 105 N. W. 635, 3 L. R. A. (N. S.) 318 (1905).

New Jersey.-Haver v. Central R. R. of New Jersey, 62 N. J. L. 282, 41 Atl. 916, 72 Am. St. Rep. 647, 43 L. R. A. 85 (1898).

Pennsylvania.-Graeff v. Philadelphia & R. R. R. Co., 161 Pa. St.

230, 28 Atl. 1107, 23 L. R. A. 606, 41 Am. St. Rep. 885 (1894).

Virginia.-Connell V. Chesapeake & O. Ry. Co., 93 Va. 44, 24 S. E. 467, 57 Am. St. Rep. 786 (1896).

1

By this general principle the carrier is not liable if the negligence cannot be imputed to him in the premises. See particularly:

Alabama.-Batton v. So. & No. Ala. R. R. Co., 77 Ala. 591, 54 Am. Rep. 80 (1884).

New York.-Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y. 108, 14 Am. Rep. 190 (1873).

2 United States.-St. Louis, I. M. & So. Ry. Co. v. Greenthal, 77 Fed. 150, 23 C. C. A. 100 (1896).

Connecticut.-Flint v. Norwich & N. Y. Transp. Co., 34 Conn. 554 (1868).

The argument was once made that the carrier should always be held liable for an assault by one passenger upon another, because he should be as answerable for the acts of one he had accepted as a passenger as he would be for one he had taken as a servant. But it is now universally recognized that there is no such privity in the conduct of the enterprise between the carrier and his passenger as to make him liable for the acts of his passenger as such. The most that can be required of the carrier, therefore, is the full performance of his duty to protect the passenger. And it is well established that there is no liability if the assault by the fellow passengers

District of Columbia.-Flannery v. Baltimore & O. R. R. Co., 4 Mackey, 111 (1885).

Georgia.-Richmond & D. R. Co. v. Jefferson, 89 Ga. 554, 16 S. E. 69, 17 L. R. A. 571, 32 Am. St. Rep. 87 (1892).

Illinois. Chicago & A. R. R. Co. v. Pillsbury, 123 Ill. 9, 14 N. E. 23, 5 Am. St. Rep. 483 (1887).

Iowa. Felton v. Chicago, R. I. & P. Ry. Co., 69 Ia. 577, 29 N. W. 618 (1886).

Kansas. Spangler v. St. Joseph & G. I. Ry. Co., 68 Kan. 46, 74 Pac. 607, 63 L. R. A. 634, 104 Am. St. Rep. 391 (1903).

Kentucky.-Kinney v. Louisville & N. Ry. Co., 99 Ky. 59, 17 Ky. Law Rep. 1405, 34 S. W. 1066 (1896).

Maryland.-Tall V. Baltimore Steam Packet Co., 90 Md. 248, 44 Atl. 1007, 47 L. R. A. 120 (1899). Massachusetts.-Kuhlen v. Boston & N. St. Ry. Co., 193 Mass. 341, 79 N. E. 815, 7 L. R. A. (N. S.) 729, 118 Am. St. Rep. 516 (1907). Michigan.-MacWilliams v. Lake

Shore & M. S. Ry. Co., 146 Mich. 216, 109 N. W. 272 (1906).

Minnesota.-Mullan v. Wisconsin C. Ry. Co., 46 Minn. 474, 49 N. W. 249 (1891).

Mississippi.-Illinois Central Ry. Co. v. Minor, 69 Miss. 710, 11 So. 101, 16 L. R. A. 627 (1892).

Missouri.-Jackson v. Missouri P. Ry. Co., 104 Mo. 448, 16 S. W. 413 (1891).

New Jersey.-Exton v. Central Ry. Co., 63 N. J. L. 356, 46 Atl. 1099, 56 L. R. A. 508 (1899).

North Carolina.-Penny v. Atlantic Coast Line Co., 133 N. C. 221, 45 S. E. 563, 63 L. R. A. 497 (1903).

Pennsylvania.—Pittsburg, F. W. & C. Ry. Co. v. Hinds, 53 Pa. St. 512, 91 Am. Dec. 224 (1866).

Tennessee. Ferry Companies v. White, 99 Tenn. 256, 41 S. W. 583, 38 L. R. A. 427 (1897).

Washington.-Wescott v. Seattle R. & S. Ry. Co., 41 Wash. 618, 84 Pac. 588, 4 L. R. A. (N. S.) 947, 111 Am. St. Rep. 1038 (1906).