Ames v. Union Railway Co.

Wells, J. The relation of master and apprentice, set forth in this declaration, is such as will sustain an action in the name of the master for an injury to the apprentice causing disability, per quad servitium amisit. 1 Chit. Pl. (3 Am. ed.) 47. Reeve’s Dom. Rel. 376. Bac. Ab. Master & Servant, O. M' Carthy v. Guild, 12 Met. 291. Dennis v. Clark, 2 Cush. 347. Rice v. Nickerson, 9 Allen, 478. Kennedy v. Shea, 110 Mass. 147. [544] Martinez v. Gerber, 3 Scott N. R. 386 ; S. C. 3 Man. & Gr. 88. Hodsoll v. Stallebrass, 11 A. & E. 301. Hall v. Hollander, 4 B. & C. 660. Woodward v. Washburn, 3 Denio, 369. The tort alleged does not consist in the breach of any contract. Even if the contract arising from the purchase of a ticket were held to have been made with the apprentice alone and in his own right, it.would not exclude liability in tort for injuries caused by the negligence of the defendant; and upon that liability an action may be maintained by any one who has suffered damage by means thereof. The degree of care required of the defendant, and thus the question whether there was any liability in tort, might be affected by the existence of the relation of contract between the defendant and the person injured. But a tort, not consisting merely in a breach of the contract, being proved, the right to recover for the damages caused must be governed by the general rule of law; and, under that rule, will be determined by the nature of the injury, and of the right or interest injuriously affected. 3 Bl. Com. 142. Marshall v. York, Newcastle & Berwick Railway, 11 C. B. 655 ; 7 Eng. L. & Eq. 519. The judgment for the defendant must-therefore be reversed, and the Demurrer overruled.