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§ 1113. Liability of carriers for their passengers' safety.

The obligation of a carrier to a passenger for his safe carriage is usually dealt with as an obligation imposed by the law of torts rather than as one assumed by contract; and properly, for the obligation is wider than any that could be based on mutual assent. The carrier does not insure the passengers' safe carriage, but is liable only for negligence." The duty imposed is to use the utmost diligence or the highest degree of care. 38 But how far the duty of the carrier in this respect differs from that of any one who for business purposes invites others on his premises may be questioned. 39 Besides the duty of avoiding negligent misconduct, the carrier is under an absolute duty to protect his passengers from the misconduct of its servants or agents.40 The decisions are of action which the statute required should be asserted within a fixed period. To have one period of limitation where the complaint is filed before the Commission and the varying periods of limitation of the different States, where a suit was brought in a court of competent jurisdiction; or to permit a railroad company to plead the statute of limitations as against some and to waive it as against others would be to prefer some and discriminate against others in violation of the terms of the Commerce Act which forbids all devices by which such results may be accomplished. The prohibitions of the statute against unjust discrimination relate not only to inequality of charges and inequality of facilities, but also to the giving of preferences by means of consent judgments or the waiver of defences open to the carrier." See also Georgia &c. R. Co. v. Blish Milling Co., 241 U. S. 190, 197, 36 Sup. Ct. 541, 60 L. Ed. 948; Metz Co. v. Boston & Maine R., 227 Mass. 307, 116 N. E. 475.

37 Readhead v. Midland Railway Co., L. R. 2 Q. B. 412, 4 id. 379; The Oregon, 133 Fed. 609, 68 C. C. A. 603.

38 Numerous cases are collected in 2 Hutchinson, Carriers, §§ 895, 896.

39 See 31 Harv. L. Rev. 306.

40 In Dwinelle v. New York Cen. & Hud. R. Co., 120 N. Y. 117, 122, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611, the court said: "As we have seen, the defendant owed the plaintiff the duty to transport him to New York, and during its performance to care for his comfort and safety. The duty of protecting the personal safety of the passenger, and promoting by every reasonable means the accomplishment of his journey, is continuous, and embraces other attentions and services than the occasional service required in giving the passenger a seat or some temporary accommodation. Hence whatever is done by the carrier or its servants which interferes with or injures the health or strength or person of the traveller, or prevents the accomplishment of his journey in the most reasonable and speedy manner, is a violation of the carrier's contract, and he must be held responsible for it." To the same effect are the following: Pittsburg, Ft. W. & C. R. Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224; Goddard v. Grand Trunk Ry. Co., 57 Me. 202, 214, 2 Am. Rep. 39; Chamberlain v. Chandler, 3 Mason, 242, 245, Fed. Cas. No. 2,575; Pendleton v. Kinsley, 3 Cliff. 416, 417, Fed. Cas. No. 10,922;

often rested on the ground that the action of the servant or agent was within the scope of his employment, 41 and in many cases this may be true, but when the act in question had no relation to the carrier's business and though occurring in the carrier's vehicle or station was due wholly to private interests or motives of the servant, the carrier's liability must be rested on the broader ground previously discussed in connection with innkeepers. 42 The carrier must also use

Bryant v. Rich, 106 Mass. 180, 188, 8 Am. Rep. 311; Chicago & Eastern R. Co. v. Flexman, 103 Ill. 546, 548, 42 Am. Rep. 33; So. Kan. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817, 5 Am. St. Rep. 766.

41 In Clancy v. Barker, 131 Fed. 161, 166, 66 C. C. A. 469, the court said: "In Dwinelle v. New York Central, etc., R. Co., 120 N. Y. 117, 126, 127, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611, the porter of a sleeping car, who had taken up a ticket of a passenger, was held to be acting within the scope of his employment when he struck the passenger during an altercation between them relative to the return of the ticket.

"In Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588, 591, 43 Am. Rep. 185, the court declared the limit of the company's liability to be 'to protect the passenger against any injury arising from the negligence or wilful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger,' and held that a driver of a street car, who was also the conductor, and who beat a passenger in the car, was within the scope of his employment to carry the passenger safely when he committed the assault.

"In Goddard v. Grand Trunk Railway, 57 Me. 202, 203, 2 Am. Rep. 39, a brakeman, who had authority to collect tickets, and who, after collecting one from a passenger, demanded another of him, and grossly insulted him because he declined to pay for his pas

sage again, was held to have been acting within the scope of his employment, and the company was charged with the damages he inflicted.

"So in Croaker v. Chicago & Northwestern Ry. Co., 36 Wis. 657, 673, 17 Am. Rep. 504, a conductor who kissed a passenger; in Pendleton v. Kinsley 3 Cliff. 416, 427, 428, Fed. Cas. No. 10,922, the clerk of a steamer who assaulted a passenger while trying to collect his fare; in Chicago & Eastern R. Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33, a brakeman who struck a passenger because during a search for a lost watch he said he thought the brakeman had it; in Terre Haute & Indianapolis R. Co. v. Jackson, 81 Ind. 19, 22, a conductor or brakeman who drenched a passenger with water; in Campbell v. Palace Car Co., 42 Fed. 485, a porter of a sleeping car who made indecent proposals to a passenger; in Williams v. Pullman Palace Car Co., 40 La. Ann. 417, 421, 4 South. 85, 8 Am. St. Rep. 538, a porter of a Pullman car who assaulted a passenger; and in Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 24 L. R. A. 483, 41 Am. St. Rep. 440, the ticket taker and special policeman of a theatre, who, in endeavoring to sell the tickets to a customer, assaulted him-were all held to be, and undoubtedly were, acting within the scope of their various employments when they inflicted the injuries for which the defendants were made to pay."

42 See supra, § 1070.

the same reasonable care to protect a passenger from injury by third persons, that is required of it in the general performance of its business.

§ 1114. Telegraph companies.

Telegraph companies are not common carriers.43 Such a company is a public service corporation,44 but does not insure the success of the performance which it undertakes. The obligation implied or imposed is to use due care to transmit a message correctly,45 and to use such care to deliver messages with reasonable promptness.46 It is common for telegraph companies to attempt to limit their liabilities by provisions, on blanks furnished for messages, to the effect that unless the message is repeated (for which an additional charge is made), the company shall not be liable beyond the price received for sending the message. Such a stipulation is held valid, except for defaults due to willfulness or gross

43 Fowler v. Western Union Tel. Co., 80 Me. 381, 15 Atl. 29, 6 Am. St. Rep. 211; Grinnell v. Western Union Tel. Co., 113 Mass. 299, 301, 18 Am. Rep. 485; Birkett v. Western Union Tel. Co., 103 Mich. 361, 61 N. W. 645, 33 L. R. A. 404; Kiley v. Western Union Tel. Co., 109 N. Y. 231, 16 N. E. 75; Gillis v. Western Union Tel. Co., 61 Vt. 461, 463, 17 Atl. 736, 4 L. R. A. 611, 15 Am. St. Rep. 917. There are contrary decisions, but they often mean no more than that a telegraph company is under the duties of a public service corporation. The following decisions relate to telephone companies, but it is assumed or stated that the law regarding telegraph companies is the same. Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721; Gwynn v. Citizens' Telephone Co., 69 S. C. 434, 48 S. E. 460, 67 L. R. A. 111; State v. Cumberland Tel. & Tel. Co., 114 Tenn. 194, 86 S. W. 390. By the Mississippi Constitution, telegraph companies are declared common carriers. Postal Tel. &

Cable Co. v. Wells, 82 Miss. 733, 35 So. 190.

44 Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561; Chesapeake, etc., Tel. Co. v. Baltimore & O. Tel. Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167; Nebraska Telephone Co. v. State, 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113. It is so far engaged in interstate commerce as to be subject to federal regulation through the Interstate Commerce Commission. 36 U. S. Stat. 544, $7.

45 Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Breese v. U. S. Telegraph Co., 48 N. Y. 132, 8 Amer. Rep. 526; Pinckney v. Western Union Tel. Co., 19 S. C. 71, 45 Am. Rep. 765.

46 Western Union Tel. Co. v. Elliott, 131 Ky. 340, 115 S. W. 228, 22 L. R. A. (N. S.) 761; Fowler v. Western Union Tel. Co., 80 Me. 381, 15 Atl. 29, 6 Am. St. Rep. 211.

negligence, in England,47 Candaa, 48 and many of the United States.49 Many States, however, hold the stipulation opposed to public policy and void.50 Whether the amendment of June 18, 1910 to the Interstate Commerce Acts, involves the invalidity of state rules and the substitution of a uniform federal rule has not yet been jurisdictions a distinction is 47 McAndrew v. Electric Tel. Co., 17 C. B. 3.

48 Baxter v. Dominion Tel. Co., 37 U. C. Q. B. 470.

49 Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Coit v. Western Union Tel. Co., 130 Cal. 657, 63 Pac. 83, 80 Am. St. Rep. 153, 53 L. R. A. 678; United States Tel. Co. v. Gildersleve, 29 Md. 232, 96 Amer. Dec. 519; Wheelock v. Postal Tel. Cable Co., 197 Mass. 119, 125, 83 N. E. 313; Western Union Tel. Co. v. Carew, 15 Mich. 525; Jacob v. Western Union Tel. Co., 135 Mich. 600, 98 N. W. 402; Halsted v. Postal Tel. Cable Co., 193 N. Y. 293, 85 N. E. 1078, 127 Am. St. Rep. 952, 19 L. R. A. (N. S.) 1021; Passmore v. Western Union Tel. Co., 78 Pa. St. 238; Williams v. Postal &c. Tel. Co., 122 Va. 675, 95 S. E. 436.

50 American Union Tel. Co. V. Daughtery, 89 Ala. 191, 7 So. 660; Western Union Tel. Co. v. Short, 53 Ark. 434, 14 S. W. 649, 9 L. R. A. 744; Des Arc Oil Mill v. Western Union Tel. Co., 132 Ark. 335, 201 S. W. 273; Western Union Tel. Co. v. Graham, 1 Colo. 230, 9 Amer. Rep. 136; Western Union Tel. Co. v. Milton, 53 Fla. 484, 43 So. 495, 11 L. R. A. (N. S.) 560, 125 Am. St. Rep. 1077; Western Union Tel. Co. v. Blanchard, 68 Ga. 299, 45 Am. Rep. 480; Western Union Tel. Co. v. Tyler, 74 Ill. 168, 24 Am. Rep. 279 [see also as to Illinois law, Stone v. Postal Tel. Cable Co., 35 R. I. 498, 87 Atl. 319, 46 L. R. A. (N. S.) 180]; Western Union Tel. Co. v. Meredith, 95 Ind. 93; Harkness v. Western Union Tel. Co.

definitely decided.51 In some taken between errors which

73 Iowa, 190, 34 N. W. 811, 5 Am. St. Rep. 672; Western Union Tel. Co. v. Crall, 38 Kans. 679, 17 Pac. 309, 5 Am. St. Rep. 795; Western Union Tel. Co. v. Eubanks, 100 Ky. 591, 38 S. W. 1068, 36 L. R. A. 711, 66 Am. St. Rep. 361; LaGrange v. Southwestern Tel. Co., 25 La. Ann. 383; Ayer v. Western Union Tel. Co., 79 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 353; Postal Tel., etc., Co. v. Wells, 82 Miss. 733, 35 So. 190; Reed v. Western Union Tel. Co., 135 Mo. 661, 37 S. W. 904, 34 L. R. A. 492, 58 Am. St. Rep. 609; Kemp v. Western Union Tel. Co., 28 Neb. 661, 44 N. W. 1064, 26 Am. St. Rep. 363; Western Union Tel. Co. v. Longwill, N. Mex. 308, 21 Pac. 339; Williamson v. Postal Tel. Cable Co., 151 N. C. 223, 65 S. E. 974 (but see Meadows v. Postal &c. Tel. Co., 173 N. C. 240, 91 S. E. 1009); Western Union Tel. Co. v. Griswold, 37 Ohio St. 301, 41 Am. Rep. 500; Blackwell Milling, etc., Co. v. Western Union Tel. Co., 17 Okla. 376, 89 Pac. 235; Pepper v. Western Union Tel. Co., 87 Tenn. 554, 11 S. W. 783, 4 L. R. A. 660, 10 Am. St. Rep. 699; Postal Tel. Cable Co. v. Sunset Construction Co., 102 Tex. 148, 114 S. W. 98; Western Union Tel. Co. v. Piper, (Tex. Civ. App. 1916), 191 S. W. 817; Wertz v. Western Union Tel. Co., 7 Utah,446, 13 L. R. A. 510, 27 Pac. 172; Gillis v. Western Union Tel. Co., 61 Vt.' 461, 17 Atl. 736, 4 L. R. A. 611, 15 Am. St. Rep. 917; Fox v. Postal Tel. Cable Co., 138 Wis. 648, 120 N. W. 399, 28 L. R. A. (N. S.) 490 (statutory).

51 See 18 Col. L. Rev. 612.

would not have been prevented by repetition and mistakes in the wording of the message which would have been thus prevented. Even admitting the validity of the stipulation generally, some courts assert that it protects the company only in the latter class of cases. 52 But most of the jurisdictions that uphold the stipulation enforce it in any case, whatever the character of the breach of duty, if there was neither gross negligence or wilful default. A distinction also has been suggested in regard to cipher messages, or those so written as to be obscure in meaning.53

Where a limitation of damages to the cost of the message is held invalid, stipulations limiting the amount to a multiple of the cost, such as ten times, are equally invalid.54 But a distinction seems certainly possible between an agreement to liquidate possible damages at a reasonable amount and an agreement to limit damages to a nominal sum. It is also usually provided that a claim for damage must be presented within a fixed time, such as sixty days from the time when the message was filed for transmission. This is valid. 55 In

52 Box v. Postal Tel. Cable Co., 165 Fed. 139, 91 C. C. A. 172, 28 L. R. A. (N. S.) 566; Western Union Tel. Co. v. Henderson, 89 Ala. 510, 520, 7 So. 419; Barnes v. Western Union Tel. Co., 24 Nev. 125, 50 Pac. 438, 77 Am. St. Rep. 791; Western Union Tel. Co. v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Rep. 843.

53 In Primrose v. Western Union Tel. Co., 154 U. S. 1, 28, 38 L. Ed. 883, 14 Sup. Ct. 1098, the court held that a provision limiting liability in regard to such messages was valid. The distinction is, however, repudiated in Western Union Tel. Co. v. Eubanks, 100 Ky. 591, 38 S. W. 1068, 36 L. R. A. 711, 66 Am. St. Rep. 361; Postal Tel. Co. v. Wells, 82 Miss. 733, 35 So. 190.

54 Harkness v. Western Union Tel. Co., 73 Iowa, 190, 34 N. W. 811, 5 Am. St. Rep. 672 (ten times); Western Union Tel. Co. v. Eubanks, 100 Ky. 591, 38 S. W. 1068, 18 Ky.

L. Rep. 995, 66 Am. St. Rep. 361, 36 L. R. A. 711 (fifty times); Fowler v. Western Union Tel. Co., 80 Me. 381, 15 Atl. 29, 6 Am. St. Rep. 211, (ten times); Fox v. Postal Tel. Cable Co., 138 Wis. 648, 120 N. W. 399, 28 L. R. A. (N. S.) 490 (fifty times).

55 Western Union Tel. Co. . Heathcoat, 149 Ala. 623, 43 So. 117; Western Union Tel. Co. v. Moxley, 80 Ark. 554, 98 S. W. 112; Western Union Tel. Co. v. Waxelbaum, 113 Ga. 1017, 39 S. E. 443, 56 L. R. A. 741; Webbe v. Western Union Tel. Co., 64 Ill. App. 331; Western Union Tel. Co. v. Yopst, 118 Ind. 248, 20 N. E. 222, 3 L. R. A. 224; Free . Western Union Tel. Co., 135 Iowa, 69, 110 N. W. 143; Russell ย. Western Union Tel. Co., 57 Kan. 230, 45 Pac. 598; Western Union Tel. Co. v. Lehman, 106 Md. 318, 67 Atl. 241; Wheelock v. Postal Tel. Cable Co., 197 Mass. 119, 83 N. E. 313; Cole v. Western Union Tel. Co., 33 Minn.

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