Philadelphia & Reading Railroad Company v. Derby,
55 U.S. 468 (1852)

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U.S. Supreme Court

Philadelphia & Reading Railroad Company v. Derby, 55 U.S. 14 How. 468 468 (1852)

Philadelphia & Reading Railroad Company v. Derby

55 U.S. (14 How.) 468


Where a suit was brought against a railroad company by a person who was injured by a collision, it was correct in the court to instruct the jury that if the plaintiff was lawfully on the road, at the time of the collision, and the collision and consequent injury to him were caused by the gross negligence of one of the servants of the defendants, then and there employed on the road, he was entitled to recover notwithstanding the circumstances that the plaintiff was a stockholder in the company, riding by invitation of the President, paying no fare, and not in the usual passenger cars.

And also that the fact that the engineer having the control of the colliding locomotive, was forbidden to run on that track at the time, and had acted in disobedience of such orders, was no defense to the action.

A master is liable for the tortious acts of his servant, when done in the course of his employment, although they may be done in disobedience of the master's orders.

This was an action on the case brought by Derby, for an injury suffered upon the railroad of the plaintiff in error.

The declaration, in ten counts, was, in substance, that on the 15th day of June, 1848, the defendants, being the owners of the railroad, and of a certain car engine called the Ariel, received the plaintiff into the said car, to be safely carried therein, upon, and over the said railroad, whereby it became the duty of the defendants to use proper care and diligence that the plaintiff should be safely and securely carried, yet, that the defendants, not regarding their duty in that behalf, conducted themselves so negligently by their servants, that, by reason of such negligence, while the car engine Ariel was upon the road, and the plaintiff therein, he was precipitated therefrom upon the ground, and greatly injured. Defendants pleaded not guilty.

On the 22d of April, 1851, the cause came on to be tried, and the evidence was, in substance, as follows:

In the month of June, 1848, the plaintiff, being a stockholder in the said railroad company, came to the City of Philadelphia, for the purpose of inquiring into its affairs, on his own account and as the representative of other stockholders. On the 15th of June, 1848, the plaintiff accompanied John Tucker, Esq., the president of the said company, over the railroad, for the purpose of viewing it and the works of the company.

They proceeded in the ordinary passenger train of the company, from the City of Philadelphia, the plaintiff paying no fare for his passage as far as the City of Reading.

On arriving at Reading, the plaintiff inspected the machine shops of the defendants, there situate, and remained for that purpose about half an hour after the departure of the passenger

Page 55 U. S. 469

train towards Pottsville, which latter place is about the distance of ninety-two miles from Philadelphia.

By order of Mr. Tucker, a small locomotive car engine, called the Ariel was prepared for the purpose of carrying the plaintiff and Mr. Tucker further up the road. This engine was not constructed, or used, for the business of the said defendants, but was kept for the use of the President and other officers of the company, their friends and guests.

On this engine, the plaintiff and Mr. Tucker, accompanied by the engineer and fireman, and a paymaster of defendants, proceeded, following the passenger train, until they reached Port Clinton, a station on the line of the railroad.

After leaving Port Clinton, when about three miles distant from it, going round a curve, the passengers on the Ariel saw another engine called the Lycoming, of which S. P. Jones was the conductor, approaching on the same track. The engineer of the Ariel immediately reversed his engine, and put down the brake. Mr. Tucker, the plaintiff, and the fireman, jumped from the Ariel to avoid the impending collision. After they had jumped, the engineer also left the Ariel, having done all he could do to stop it. The plaintiff, in attempting to jump, fell, and received the injury of which he complains.

The engineer of the Lycoming, when he saw the approach of the Ariel, reversed his engine and put down the brake. He did not leave the Lycoming till after the collision. At the time of the collision, the Lycoming was backing. The engines were but slightly injured by it.

On the night of the 14th or the morning of the 15th of June, a bridge, on the line of the railroad above Port Clinton, was burnt. In consequence of this, one of the tracks of the railroad was blocked up by empty cars returning to the mines, and stopped by the destruction of the bridge. For this reason a single track only could be used for the business of the road between Port Clinton and the burnt bridge.

Lewis Kirk, an officer of the said company, master machinist and foreman, went on in the passenger cars from Reading, towards Pottsville, informing the plaintiff and Mr. Tucker, that he would give the proper orders to have the track kept clear for the Ariel. On arriving at Port Clinton, he did give an order to Edward Burns, dispatcher at Port Clinton, an officer of said company, charged with the duty of controlling the starting of engines, that no car should be allowed to go over the road until he the said Kirk returned.

This order was communicated in express terms by Burns to Jones, the conductor of the Lycoming. Jones replied that he would go, and would take the responsibility, and, contrary to

Page 55 U. S. 470

his orders, did go up the road towards the burnt bridge, and on his return met the Ariel, and the collision ensued, as above stated. Jones had the reputation of being a careful and competent person, no previous disobedience of orders by him had ever occurred, and he was discharged by the defendants immediately after the accident, and because of it.

On the trial, the plaintiff below requested the court to charge the jury:

"I. That if the plaintiff was lawfully upon the railroad of the defendants at the time of the collision, by the license of the defendants, and was then and there injured by the negligence or disobedience of orders of the company's servants, then and there employed on the said railroad, the defendants are liable for the injury done to the plaintiff by such collision."

"II. That if the defendants by their servants, undertook to convey the plaintiff along the Reading Railroad, in the car Ariel, and while so conveying, him, through the gross negligence of the servants of the company then and there employed on the said railroad, the collision occurred, by which the plaintiff was injured, that the defendants are liable for the injury done to the plaintiff by such collision, although no compensation was to be paid to the company for such conveyance of the plaintiff."

"III. That if the collision, by which the plaintiff was injured, was occasioned by the locomotive Lycoming, then driven negligently or in disobedience of orders upon the said road by J. P. Jones, one of the company's servants, then having control or command of the said locomotive, that the defendants are liable for the injury to the plaintiffs, caused by such collision."

And the counsel for the defendants below requested the court to charge the jury:

"1. That the damages, if any are recoverable, are to be confined to the direct and immediate consequences of the injury sustained."

"2. That if the jury believe the plaintiff had paid no fare, and was passing upon the railroad of the defendant as an invited guest, in order to entitle him to recover damages he must prove gross negligence, which is the omission of that care which even the most thoughtless take of their own concerns."

"3. That the defendants would be liable in damages to a passenger who had paid passage money upon their contract to deliver him safely, for slight negligence, but to an invited guest, who paid no fare or passage money, they will not be responsible unless the jury believe that there was not even slight diligence on the part of the agents of the defendants."

"4. That the employer is not responsible for the willful act of his servant. "

Page 55 U. S. 471

"5. That if the jury believe that the conductor of the engine Lycoming willfully, and against the express orders of the officer of the company communicated to him, by running his engine upon the track above Port Clinton, caused the collision, the defendants are not responsible for any injury or loss resulting from such willful disobedience."

"6. That if the jury believe that every reasonable and proper precaution was taken to have the track of the railroad clear for the passage of the Ariel, and collision ensued solely be reason of the willful disobedience of the conductor of the Lycoming, and of the express orders duly given by an agent of the company, the plaintiff cannot recover."

"7. That if the jury believe that the conductor of the Lycoming, and all the officers of the company in any wise connected with the collision, were carefully and prudently selected, and that the collision ensued and the injury resulted to the plaintiff, an invited guest, by the willful disobedience of one of them to an order duly communicated, then the plaintiff cannot recover."

The learned judge charged the jury as requested, on all the points offered by the plaintiff.

And the learned judge charged on the first and second points offered by the defendants, as requested, and also on the third point of the defendants, with the explanation, that though all the other agents of the defendants acted with diligence, yet if one of the agents used no diligence at all, then the defendants could not be said to have shown slight diligence.

As to the fourth point, the learned judge charged as requested by the defendants, with this explanation, that though the master is not liable for the willful act of his servant, not done in the course of his employment as servant, yet if the servant disobeys an order relating to his business, and injury results from that disobedience, the master is liable, for it is his duty to select servants who will obey. The disobedience in this case is the ipsa negligentia, for it is not pretended by the defendants that the Lycoming was intentionally driven against the Ariel.

On the fifth, sixth, and seventh points of the defendants, the learned judge refused to charge as requested.

The learned judge further said, that it is admitted that the plaintiff was injured through the act of Jones, the conductor of the Lycoming, that the plaintiff was lawfully on the road by the license of the defendants; then, in this view of the case, whether he paid fare or not, or was the guest of the defendants, made no difference as to the law of the case.

The jury found a verdict for the plaintiff, and assessed the damages at three thousand dollars.

A writ of error brought the case up to this Court.

Page 55 U. S. 483

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