Eaton v. Delaware, Lackawanna & Western Railroad

Dwight, C. The real inquiry in the present action is, whether, under the circumstances of the case, the relation of *387 common carrier and passenger existed between the plaintiff and defendant. If that can be established, it is plain that the negligence of the conductor was such as to make the defendant liable for the plaintiff’s injuries. It must, however, appear that the defendant was under a duty to the plaintiff to exercise care toward him. That duty can only spring up from acts of the conductor causing the relation of common carrier and passenger to exist between the parties. It is now well settled that liability in such cases is to be derived from a pre-existing duty or obligation on the part of the principal. In that case the negligence of the servant whom he employs to discharge the duty or obligation is imputable to himself, so as to render him responsible. (Smith v. Dock Company, L. R. [3 C. P.], 326; Collis v. Selden, id., 495; Nicholson v. Erie Railway Company, 41 N. Y., 525, and cases cited in opinion of Earl, Ch. J.) The solution of the questions at issue is not to be sought in the rules of law appertaining to common carriers. It must be obtained from the principles of the law of agency. The true inquiry is, whether the conductor, as an agent of the defendant, had the power to take the plaintiff upon the train in such a way as to bind the defendant as a carrier to him as a passenger. The facts of the case, so far as it is necessary to consider them, are briefly these; they are stated in the form most favorable.to the plaintiff: He, being then under twenty-one years of age was, with two other boys, walking toward his home on the railroad track, and, having been passed by a coal train, moving slowly, was beckoned by the conductor in charge of it, who was then on the rear car, a caboose (to be hereafter described), to get upon the train. The plaintiff and his associates acted accordingly. The conductor, afterward, solicited them to go with him, upon his return trip, to a place called Phillipsburgh, where he would procure for them situations as brakemen. They went 'with him. The train, toward morning, stopped on the track at a point where there was a sharp curve in the road. The conductor was guilty of negligence, in not sending back a flagman,, to warn an- *388 approaching train. Ho signal was given, nor was any Tight exposed for this purpose. A collision occurred, by which the plaintiff sustained serious injury, without negligence on his part. The rear car, or “ caboose,” in which the plaintiff was at the time of the injury, was supplied with a stove, and there were boxes running up and down the car, in which the tools, etc., of the employes of the road were kept. The car was also used as a place of deposit for lanterns, couplings, etc. The boxes had covers on which persons could sit. The car was, in substance, - a store-room, and used for carrying provisions while the train was on the road. These arrangements were made for the convenience of the defendant’s servants, and the car, really, carried train equipments. There was no evidence that passengers, either habitually or occasionally (except in the present instance), rode in the caboose. There was a regulation of the defendant, printed on the tables intended for the use of its employes, that passengers were forbidden to ride on coal trains. Disobedience of this rule, if known to the defendant, was followed by a discharge of the employe so offending. Of this regulation the plaintiff had no actual notice, and it was not put up in the “ caboose.” The plaintiff paid no fare, nor was any demanded of him. The question submitted to the jury at the trial was, whether the plaintiff was informed of the regulation referred to; and they were instructed, that if they should answer that in the negative, the plaintiff could recover. To this direction exception was taken by the defendant. In .considering the effect of these facts, it should be premised that railroad companies, like other common carriers, have a right to make reasonable regulations as to the management of their business. While they may, if they see fit, have the freight and passenger business carried on upon a single train, under one management, they may also completely separate their transactions by arranging them in distinct departments. They may thus have an engineer, brakemen and a conductor, whose duties shall be confined solely to the management.of a freight train. Such a conductor, though *389 bearing the same name as the general manager of a passenger train, would have quite different powers. The law would, in general, only confer upon him such authority as was incidental to the business of moving freight; and no power whatever as to the transportation of passengers. This would clearly be the case if a person applying to be a passenger on a freight train had actual notice of the division of the business. In the great transactions of commercial corporations, convenience requires a subdivision of their operations among many different agents. Each of these may have a distinct, employment, and become a general agent in his particular department, with no powers beyond it. He is only identified with the principal to that extent. ¡Notice to such an agent would only be notice to the principal in respect to the department in which he acted. (1 Parsons on Contracts, 76 [5th ed.]; see Story on Agency, §§ 17, 167, where the distinction between a strict general agent and one for a particular purpose is considered ; see § 131 as to his powers; also, 1 Parsons on Contracts, 76.) These general propositions will scarcely be disputed. The remaining inquiry is, whether notice to a supposed passenger will not be implied from the nature and apparent division of the business. It would seem so. The matter will be simplified by supposing, in the outset of the discussion, that this had been a coal train without any “caboose” attached. Hnder such circumstances, although a wayfarer had taken a gratuitous ride, with the conductor’s assent, upon one of the coal vans, happening for the moment to be empty, so that he could improvise a seat, he could scarcely be deemed a passenger, and the defendant, as to him, a carrier. The presumption is that a person on a freight train is not, legally, a passenger; and it lies with him who claims to be one, to take the burden of proof to show that, under the special circumstances of the case, the presumption has been rebutted. So, if a stagecoach proprietor should regularly carry his passengers in a stage and their baggage in a wagon, there would be a fair presumption that the wagon was not intended for passengers, *390 though, under special circumstances, it might be used in that manner. A person asserting that he was a passenger, though riding in the baggage-wagon, would be bound to prove it. In both these cases, the distinction between the passenger and the freight business would be so marked by the external signs of classification, that any person of ordinary prudence would take notice of it. This would be equivalent to actual notice, and the burden of proof would devolve upon him to show that the carrier had relaxed his rule. (Robertson v. New York and Erie Railroad Co., 22 Barb., 91.) The question now recurs, whether there is anything in the facts of the present case to rebut the presumption which would naturally be derived from the separation of the defendant’s coal business from its other transactions. If so, it must be in the authority of the conductor, as a general agent of the defendant, or in the appearance of the caboose as fitted up for the transportation of passengers, or, in the conductor’s invitation or suggestion, as to the plaintiff’s employment as a brakeman. It is a fallacy to argue that a conductor is a general agent for this purpose, assuming that his power would, as a rule, place him under the class of general agents; he only holds that position for the management of a freight train. The fact that the same word, “conductor,” is used to designate servants in two kinds of business, which the defendant has made perfectly distinct, tends to confusion. There is no real analogy between the duties of a conductor of a passenger train and those of the manager of a strict freight train. A different class of men would naturally be employed in the two cases. The defendant has a right to assign specific duties to the one distinct from those performed by the other. It is a familiar rule in such a case, that an agent cannot increase his powers by his own acts; they must always be included in the acts or conduct of the principal. (Marvin v. Wilber, 52 N. Y., 270, 273.) Ho act of a conductor of a freight train will bind the company as to carrying passengers, unless the principal in some way assents to it. In the present case, it was distinctly proved that the *391 company forbade the act, and there was no evidence of any form, of assent to its exercise, except that which may be inferred from the use of the caboose. The caboose was not fitted up in the manner usual in passenger cars. Its general appearance showed it to be exclusively designed for the use of the defendant’s servants. The plaintiff could not have been misled as he paid no fare. The conclusion is, that there was nothing in the attendant circumstances, in the present instance, to show that the conductor could, by inviting the plaintiff to get upon the train, create between him and the defendant the relation of passenger and carrier. The result is supported by the adjudged cases. In Lygo v. Newbold (9 Exch., 302) the plaintiff contracted with the defendant to carry certain goods for her in his cart. The defendant sent his servant, who, without the defendant’s authority, permitted the plaintiff to ride in the cart. On the way, the cart broke and the plaintiff was injured. It was held that the defendant had not contracted with the plaintiff to carry her, and that he was not liable. The Supreme Court of Maine have sought to weaken the force of this case by the assertion that it was not the case of a common carrier. (Dunn v. Grand Trunk Railway Co., 58 Me., 187; 10 Amer. Law Reg. [N. S.], 623.) The criticism seems to be unfounded, as the question here at issue does not respect the duties of a common carrier to a passenger, but is the preliminary one, whether the plaintiff is a passenger. . This depends upon the law of agency, and to this the decision in Lygo v. Newbold is strictly applicable. Elkins v. B. and M. R. R. Co. (23 N. H. 275) is favorable to the defendant. The railway company in that case had a regulation prohibiting the carriage of freight on passenger trains. It was held, that as it had not authorized or acquiesced in any deviation from the regulation, and had received no compensation for the carriage of the goods, it was not liable. Reference may also be made to the authorities establishing the proposition, that wherever an agent has powers over a definite subject he cannot by his own act extend *392 his powers to other subjects, even of a cognate character. Notice to the person dealing with him is immaterial, (Benedict v. Martin, 36 Barb., 288; Gilbert v. Beach,. 5 Bosw., 445; 8 N. Y., 222; 11 id., 432.) The case of Lawrencebicrgh and Miss. R. R. Co. v. Montgomery (7 Ind. [Port.], 476) is not opposed to these views. The only-point bearing on the present subject was, whether the court below erred in not instructing the jury that a railroad company is not liable for an injury which may happen to a person who takes passage on a train engaged in transporting gravel and not engaged in carrying passengers. The court properly held that the request for this instruction was too broad. It added: “ In the case of Fitzpatrick v. New Albany and Salem R. R. Co. (id., 436) we decided that a person riding on a gravel train might, under certain circumstances, recover for an injury occasioned by a collision. Besides, the last qualification of the proposed instruction was calculated to mislead the jury, as it appeared that the company had carried passengers in gravel trains in a number of instances.” (P. 477.) This decision, owing to the special grounds upon which it was placed, has no bearing on the present ease, the facts being materially different. The case of Dunn v. The Grand Trunk Railway Co. (supra), in its precise facts, is not opposed to the theory adopted in the case at bar. The plaintiff had paid his fare and entered the “ saloon ” car of a freight train, contrary to the regulations of the company, but with the knowledge of the conductor. The company was held liable. The ease differs from the one at bar in two respects: payment of fare and the attachment of a “ saloon car.” What that was is not precisely stated. It may be assumed to be one fitted up for the accommodation of passengers. It might thus, perhaps, be inferred that the defendant had assented to a relaxation of its rules. The reasoning of the case is disapproved by a well known text writer upon railways (Judge Redfield), and is unsatisfactory. The principle there acted upon is not to be extended beyond the precise facts of the case. *393 The only other point to be considered is whether the suggestion of the conductor that the plaintiff might secure employment as a brakeman if he would go with him to Phillipsburgh, is of such a character as to impose a liability upon the defendant. The same general course of reasoning already resorted to is applicable. The employment of brakemen is no part of the ordinary duty of a conductor. The company gave him no power to make any arrangement of the kind. Even if his suggestions had been influential in former cases, the plaintiff had not acted upon that fact. The defendant had not held him out as having authority. The testimony on this branch of the case, most favorable to the plaintiff, is that the conductor told the plaintiff that if he wanted work and would go back to Phillipsburgh he was sure of a situation, or that he would get him a situation, and promised that he should be a brakeman on the road. It appeared, however, that the conductor had no authority to employ brakemen, this part of the business being intrusted to an employe termed a “ train dispatcher.” Looking at this testimony in the most favorable light it is only an instance of an agent having defined authority, making representations beyond the scope of his agency. It is not one of those cases where he has an apparent authority, including the act in question, but owing to a secret fact does not have it in the particular case. (North River Bank v. Aymar, 3 Hill, 262; Farmers and Mechanics’ Bank v. Butchers and Drovers’ Bank, 16 N. Y., 125, 128, 143; Witbeck v. Schuyler, 44 Barb., 469; N. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y., 30; Rawls v. Deshler, 3 Keyes, 572.) On the other hand there is nothing in the business of a conductor which could lead to the conclusion that he had authority to make contracts with persons to act as brakemen. His apparent duties are to carry forward a train after it is organized. The business of organizing it is, in its nature, wholly distinct. It is, in fact, committed to a “ train dispatcher.” Hnder such circumstances there is no act on the part of the defendant by which he can be estopped from showing *394 the conductor’s real authority any more than a commercial house would be if one of its travelers, in the course of a journey, assumed to hire a clerk to do business for his employers at home. Suppose that such a person, while driving his employer’s carriage in the course of his business, had taken up a person casually met on the highway in whom he became interested and to whom he had promised employment as a clerk with the intention of carrying him to such employer, would the employer be liable for the negligent driving of his traveler whereby the promisee was injured ? The contention of the plaintiff must go to the length of maintaining that the company was bound by the act of the conductor to take the plaintiff into its service. If he had reached his destination without injury and received no employment he would, on the principle asserted in this case, have an action against the defendant for not supplying him with work. The conductor’s authority to carry can only be incidental to his power to make a valid engagement for the plaintiff’s services. The admission of such a doctrine would subvert familiar rules of the law of agency. It cannot be that it is law. (Cochran v. Newton, 5 Den., 482; S tringham v. St. Nicholas Ins. Co., 3 Keyes, 280.) But it is said that by the act of the conductor the plaintiff was lawfully on the train, and that for this reason the defendant was liable to him for the negligence of its servants. With due submission this is simply begging the question. The plaintiff could only be “lawfully” on the train by an authorized act of the conductor. The question still recurs, had the conductor the authority to take the plaintiff on the train ? If not, he could not lawfully be there. It is not necessary to consider whether he was a trespasser. It is enough to hold that a duty to be careful toward him could only spring up, on the part of the defendant, by an act on the conductor’s part coming within the scope of his authority. It has already been abundantly shown that there was no such act. ‘ The judgment should be reversed.