Art. 6. Carriers. But so much force may be used as is considered needful to effect the result. Peck v. N. Y. C., etc., Co., 70 N. Y. 587. A carrier of passengers by rail is bound to exercise the utmost vigilance, not only in guarding its passengers against careless interference by others, but even against violence, and if, in consequence of neglecting this duty, a passenger receives injury which, in view of all the circumstances, might have been reasonably anticipated, it is liable. Carpenter v. B. & A. R. R. Co., 97 N. Y. 494. While a railroad company is not an insurer of the safety of its passengers, it is bound to use a high degree of skill and vigilance to guard against accidents which may be attended with injurious consequences to them. This duty is not discharged without the utmost care and diligence which human prudence and foresight will suggest to secure the safety of the passenger, and this vigilance is to be exercised by the company to see that its roads and appliances used in operating it are and remain in good condition and free from defects, and a latent defect which will relieve it from responsibility is such only as no reasonable degree of human skill and foresight could guard against. Palmer v. D. & H. C. Co., 120 N. Y. 170. See Stierle v. Union Ry. Co., 156 N. Y. 70, and opinion on reargument, 156 N. Y. 684. Willis v. Metropolitan Street R. R. Co., 76 App. Div. 340, upon a review of the leading authorities, holds that the rule is well settled that once the relation of carrier and passenger is entered upon, the carrier is answerable for all consequences to the passenger of the willful misconduct or negligence of the persons employed by it in the execution of the contract which it has undertaken toward the passenger, distinguishing Block v. Third Ave. R. R. Co., 60 App. Div. 191, 69 N. Y. Supp. 1107, and further holding that the weight of authority is that a passenger upon the cars of a common carrier is entitled to be safely transported, and that any act on the part of the defendant's servants in carrying out this contract, whether carelessly done, or done with personal malice on the part of the servant, which results in injury to the plaintiff, must charge the carrier with liability, and that a cause of action, whether for the assault or for negligence, is properly maintainable against the carrier. See Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 117. But a railroad may contract with a gratuitous passenger for its Art. 6. Carriers. exemption from liability, in all cases where it is not against law or public policy. Wells v. N. Y. C. & H. R. R. R. Co., 24 N. Y. 181; Perkins v. N. Y. C. & H. R. R. R. Co., 24 N. Y. 196. The language of a ticket or pass must be explicit to relieve a railroad company from its common-law liability as a common carrier for personal injuries sustained by a passenger. Such a limitation must be expressed in language so plain and unequivocal that it can readily be apprehended by any one, whether it seeks to relieve the liability of the carrier of freight or passengers for its negligent acts. Dow v. Syracuse, Lake Side & B. R. R. Co., 81 App. Div. 362, collating and citing authorities. The liability of passenger carriers is based upon the law of negligence and can only receive full consideration in connection with treatment of that branch of the law. No attempt is made to do other than cite a very few of the leading authorities bearing upon the question of liability of carriers. SUBDIVISION 5. Carrier of Baggage. A carrier of passengers by the sale of a passenger ticket without any specific agreement or separate compensation as incident to the contract, becomes obligated to carry the baggage of a passenger to a reasonable amount, and to deliver it at the end of the route to the passenger or his duly-authorized agent. Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y. 278. A common carrier is liable for the personal baggage of the passenger, unless the loss is caused by an act of God, or the public enemy, and a reasonable sum of money for the payment of his expenses, if carried by the passenger in his trunk, would be included in the liability for loss of baggage. Adams v. New Jersey Steamboat Co., 151 N. Y. 163 (167). A distinction exists between the degree of responsibility resting upon a steamboat company for the personal effects of a passenger occupying a stateroom, and that resting upon a railroad company in respect to a passenger occupying a berth in a sleeping car. Adams v. N. J. Steamboat Co., 151 N. Y. 163. The nature and extent of liability of a carrier for the baggage of the passenger is very fully considered and authorities cited in Talcott v. Wabash R. R. Co., 159 N. Y. 461; Trimble v. N. Y. C. & H. R. R. R. Co., 162 N. Y. 84. Art. 7. Master and Servant. ARTICLE VII. MASTER AND SERVANT. SUBDIVISION 1. Rule respondeat superior . 2. When relation of master and servant exists. PAGE. 78 80 82 86 91 SUBDIVISION 1. Rule Respondeat Superior. It is a familiar and primary rule of law that a man is not responsible for the acts of others. To this rule there is, however, an exception, known as respondeat superior, so thoroughly established that it is considered rather as a fundamental rule than as an exception, that the master is liable for the wrongful acts and negligence of his servant, performed while in the pursuit of his master's business within the scope of his employment. 12 Am. & Eng. Encyc. of Law (2d ed.), 897. It is an old and thoroughly established doctrine that, where the relation of master and servant exists, the master is responsible to third persons for the damage caused by the wrongful acts or omissions of his servants in the course of their employment as such. Shearman & Redfield, § 141; Harlow v. Humiston, 6 Cow. 189, holding that if a man's servant in ordinary course of his business obstructs a highway, from which a traveler receives a subsequent injury, the master is liable. This is known as the doctrine of respondeat superior. McKinney on Fellow Servants, $ 2. The explanation of the doctrine seems to be historical, dating back to the period of the Roman law, when servants were slaves, for whom the father of the family was responsible as part of his general responsibility for the family, which he represented and governed. 2 Kent Comm. 260, note. The liability of the master to third persons for the negligent or wrongful acts of those in his employment is based on the broad principle of the general security of society and business. As Art. 7. Master and Servant. every one is responsible for the results of his own negligence, a person may not divest himself of liability by deputizing another to act for him, and then disclaiming the consequence of his acts, if they result in injury to the person, property, or reputation of another. In an early case, Parke, B., was of the opinion that he was properly held liable "who selected him as his servant, from the knowledge of, or belief in, his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey." Barrows on Neg. 153, citing Quarman v. Burnett, 6 M. & W. 499; Hern v. Nichols, 1 Salk. 289; Lane v. Cotton, 12 Mod. 473. The reason of the rule is that every act which is done by a servant in the course of his duty is regarded as done by the master's orders, and consequently is the same as if it were the master's own act. Barton's Hill Coal Co. v. McGuire, 3 Macq. H. L. 306. The rule respondeat superior is based upon the right which the employer has to select his servants, and discharge them if not competent or skillful or well-behaved, and to direct and control them while in his employ. The rule has no application to a case where this power does not exist. Maximilian v. The Mayor, 62 N. Y. 160. It is the general rule that a party injured by the negligence of another must seek his remedy against the person whose actual negligence it was which caused the injury, and that such person alone is liable. (King v. N. Y. C., etc., Co., 66 N. Y. 182.) The case of master and servant is an exception, and the negligence of the latter is imputable to the master where the servant, in doing the act which occasions the injury, is acting within the scope of his employment. This exception rests upon most satisfactory reason, because the servant in the case supposed is acting in place of the master and by his appointment, and the master who selects and controls the servant makes the servant his representative in his business. Engel v. Eureka Club, 137 N. Y. 100 (103). Allen, J., in Mott v. Consumers' Ice Co., 73 N. Y. 543, says: "The responsibility of the master for the acts of a servant rests upon the express or implied authorization of the acts by the master, who in the employment of another to act for him assumes all the risk of a wrongful execution of his duties." Art. 7. Master and Servant. SUBDIVISION 2. When Relation of Master and Servant Exists. "The master is one who has the superior choice, control, and direction; whose will is represented, not merely in the ultimate result of the work in hand, but in all its details; one who is the responsible head of a given industry; one who has the power to discharge; one who has in his employment one or more persons hired by contract to serve him, either as domestic or common laborers; one who not only prescribes the end, but directs, or may at any time direct, the means and methods of doing the work; a head or chief, an instructor, an employer; a director, a governor. A servant is one who is employed to render personal service to his employer otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter." 14 Am. & Eng. Encyc. of Law (1st ed.), p. 745, citing elementary works and authorities. A person who puts another in his place to do a class of acts in his absence is answerable for the torts of the latter, either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done, and whether it be done negligently, wantonly, or even willfully; provided that which is done is done by the agent in the course and within the general scope of his employment. But if the agent without regard to his service or his duty therein, or solely to accomplish some purpose of his own, acts maliciously or wantonly, the employer is not liable. Underhill, 59, citing Bayley v. Manchester, Sheff. & Lincoln R. R. Co., L. R.; 7 C. P. 415; Dyer v. Munday (1895), 1 Q. B. 742; Mott v. Consumers' Ice Co., 73 N. Y. 543. The doctrine respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong at the time and in respect to the very transaction out of which the injury arose. The master is the person in whose business the servant is engaged at the time, and who has the right to control and direct his conduct. Higgins v. Western Union Telegraph Co., 156 N. Y. 74 (78), citing Wyllie v. Palmer, 137 N. Y. 248 (257). These authorities, with others, are collated and discussed in Murray v. Dwight, 161 N. Y. 301, where it is held that the mere |