Toledo, Wabash & Western Railway Co. v. Harmon

Mr. Justice Walker delivered the opinion of the Court: The evidence in this record is conflicting, and was properly left to the consideration of the jury. In such cases this court will not disturb the verdict, unless we can see that it is manifestly against its weight. An attentive examination of the testimony fails to- satisfy us that the finding is unwarranted. On the contrary, we think it preponderates in favor of the finding of the jury. If the agents and employees of a railroad company, while in the discharge of their duty, act with such negligence as to occasion injury to others who are not in fault, the company must be held liable in damages for the wrong. The well being of society requires these bodies to"] employ careful and skillful agents* and that they in the performance of their duties shall have due regard to the safety and rights of other persons. They are held to a high degree of caution and skill while exercising and enjoying their franchises. Negligence, or want of skill by their agents, producing injury, will create liability. And when they locate their stations and depots in populous cities and on thoroughfares, they must, for the protection of community be held to a degree of care commensurate with the greater danger such a situation involves. When located at such places, they know the hazard that must ensue, and must be held to an increased degree of care and diligence equal to the greater hazard. The life and property of individuals cannot be lightly' or wantonly placed in jeopardy. If that might be done, then these great instruments of prosperity, and agents in the development of the resources of the country, and promoters of its commerce, instead of a blessing, would become a nuisance, if not a curse to our citizens. If the lives of men, or their property, must be endangered' in the pursuit of their ordinary and legitimate business, while lawfully passing over our public highways, and no person can be held responsible, then it would be an injury instead of a blessing to community that they-were constructed. The great object of government is to afford protection to the life, liberty and property the citizen, and in the pursuit of that object all interests should be protected, and no one branch* of business or interest be permitted to injure or destroy •"others. Althougn not equally beneficial to community, the least productive interest or pursuit is nevertheless important as contributing to the prosperity of the whole community. And to the person engaged in such a pursuit, it is as important as the vast enterprises of the more favored of his fellow citizens are to them, and he is, under the law, entitled to an equal degree of protection in its pursuit and enjoyment. And the purpose of creating government would be perverted if the great and profitable pursuits were permitted to disregard and trample upon the more humble and less lucrative occupations and callings. And however important and even essential, these great creations of modern civilization and enterprise may be to society, they must be required to regard the rights of others, to the same extent that individuals are held to avoid injury and wrong to them and to each other. Appellee had the undoubted legal right to travel this public highway, in the pursuit of his business, pleasure, or even from caprice, and appellants had no right by their agents, to unnecessarily hinder, obstruct or endanger him or his property, while thus exerpising his rights. Both parties have the right to pass and repass over the roads in the modes adapted to their construction; and each is under- equal and reciprocal obligations to observe the rights of the other; and neither can wilfully, wantonly or negligently, endanger, obstruct or delay the other in the enjoyment of his rights without incurring liability for the injury; and each party, in the exercise of his right, must observe the highest degree of prudence, circumspection and skill, to avoid the infliction of injury to other’s. In this case, there is nothing disclosed by the evidence, from which it can be inferred that appellee did not take every precaution which prudence could dictate, to avoid injury. He checked up his team before reaching the road crossing, and awaited, not only the passage of the engine, but until it came to rest before he attempted to cross. He says, that while thus waiting, the engine driver looked at him as he passed. And this he must have done, if he was not reckless of his duty; and if he did see that he was waiting to cross the track, lie was bound to afford all reasonable facilities for the purpose. And having, the control of his locomotive, and the .steam by which it was propelled, he was required -to so use and control them, as to avoid injury to others, acting with prudence and caution. He had no right after he saw appellee start to cross the track," to then put his engine in motion and run it against appellee’s wagon and team, nor had he the right to so use the steam from his engine as to frighten appellee’s horses. He saw that they were restive and afraid of his locomotive, and must have known that the escape of steam would, most probably, produce the result that ensued; and it was his duty to have -prevented its escape, and avoided the disastrous results that followed from the noise of- the escaping steam, which is highly calculated, as all observation teaches, to alarm cattle and horses. Knowing this, he should have been on his guard, and used all necessary precautions to prevent injmy. It can make no difference in its results to appellee, whether the escape of steam was the effect of negligence, or from wanton and willful purpose. The engine driver does not pretend that there was any necessity, nor can we imagine any, for the escape of steam at that time. He had stopped his locomotive, and there could be no necessity to start it until appellee had crossed the track, which could have required, at most, not more than a very few seconds. There could have been no danger of an explosion, nor is it pretended there was. Then why the necessity for the escape of steam, either through the whistle or the escape pipes ? It must have been the result of gross negligence under the circumstances, or of wanton and willful purpose, in total disregard of the security of the life and property of appellee. It is, however, contended that if the engine driver did .the act wantonly or willfully, it was outside of his authority, and. hence the company are not. liable for the damages resulting from the misconduct of the engineer. He was their servant, was engaged in the performance of the duty assigned to him, and if, while so engaged, he used the engine put into his pos-, session and under his control, to accomplish the wanton or • willful act complained of, why should not the company be held-liable ? It is said that he was not'employed for the purpose, nor directed to perform the act; and it is equally true that ■ they do not employ engineers to inflict injuries through negligence or incompetency, and yet these bodies are held liable for such acts of their servants. In the case of the Chicago, Burlington & Quincy R. R. Co. v. Parks, 18 Ill. 460, it was urged that the conductor, in ejecting Parks from the train, did not only an unlawful, but an unauthorized act, and the company were not liable for damages. The law prohibited him from removing or forcibly ejecting a passenger for refusing to pay his fare, excej>t at a usual stopping place, while he put him off by force at a different place. In that case, the agent of the road did an act prohibited by the statute and outside of his authority, and yet the company were held liable. In the case of the Ill. Cent. R. R. Co. v. Reedy, 17 Ill. 582, it was said that while trespass might be maintained against the agents of the company for their immediate acts, yet the corporation who employed them would be liable in ease for the damage inflicted by their servants ; and if authority by the company to perform the act i were to be made the test of liability, they would always escape, as they would never authorize their agents to do an unlawful act, or to .omit any duty, orto carelessly or negligently perforin others, whereby injury would result to individuals. This court held, in the case of the St. Louis, Alton & Chicago R. R. Co. v. Dalby, 19 Ill. 353, that a railroad corporation is liable, in an action of trespass, for an assault and battery committed by an employee of the company on a passenger on the train ; and this rule wTas fully approved in the case of the Ill. Cent. R. R. Co. v. Read, 37 Ill. 484. It was there said, in ansxVer to the objection to the want of authority in the agent to commit the act, or that the company had no power to order a lawful act to be done in an improper mode, or so that it will violate the rights of others, and therefore, such act must be regarded as that of the agent, and not of the company; that such a rule would release railway companies from liability from all affirmative acts violating the rights of others; that in all such cases the ready answer would be, that because such act was wrongful, therefore it was unlawful, and not authorized by its charter, but the individual act of their agents, who' exercise its functions. That the result of the position would be, that the company could not be liable for a trespass, because no corporation can be empowered to commit a wrongful act. There can be no pretense, that where an agent commits an | act willfully, or otherwise, while he is not engaged in the per-1 formalice of his duty to the company, they would be liable \ for the wrong ; or even while so • engaged, if he were to per- | sonally perform an act not connected with the business of the \ corporation, they would be liable. But when employed in j-the discharge of his duty, or while engaged in operating their ) engines and machinery on their road, if he uses such agencies \ in an unskillful manner, or so negligently as to occasion injury I to ai~other, or even if, while so ei~gaged, he willfully perverts such agencies to the purpose of wanton mischief and injury, the company should respond in damages. They should not be permitted to ~ay, it is true he was an agent, was authorized by us to have the possession of our engines, was engaged iu carrying on our business, and while so engaged, he willfully perverted the instruments which we placed in his hands to something more than we designed or authorized, and, there~ fore, we should not be liable for the injury thus inflicted. In this case, so far as the record discloses, the engineer ~`as properly engaged in the use of the machinery of the company, and it can make no difference whether the escape of steam was negligently permitted, or willfully done by the engineer, any more than if he had willfully run his engine against appellee's wagon and team, and thus pioduced the injury. The question, whether it was negligently or intentionally done, can, we think, make no difference in results. It then follows that the instructions were not improper, and no error was committed by telling the jurythat the company were liable if the act was intentional on the part of the engineer. The judgment of the court below is affirmed. Juc1gme~ affirmed.