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gaged in rendering any service for his mas. , such invitation, and particularly that they ter, but was momentarily off duty and shall not suffer wrong from the agents and awaiting orders. The majority of the court servants of those who have invited them." decide that question in the affirmative, hold- Also in the case of Pinkerton v. Wooding, as I understand, that, if the proprietorward, 33 Cal. 557, 585, 91 Am. Dec. 657, of a hotel exercises ordinary care in the it was held that the liability of innkeepers selection of his servants, he is not re- and of common carriers is founded upon sponsible to his guests for any of their the same considerations of public policy in acts committed, even within the hotel, no the one case as in the other. matter how rash, negligent, or brutal they In the absence of express authority on may be, nor how seriously a guest may be this point I should be of opinion that injured, provided the servant was not at an innkeeper is under the same obligation the moment engaged in some work for and to protect his guests against the wrongful in behalf of the master. I am unable to and discourteous acts of his servants, comassent to this doctrine.

mitted within or upon his premises, as a The relation existing between a carrier carrier to protect its passengers agrinst and a passenger has on numerous occasions like acts of its employees. A guest comes been likened to that existing between an to a hotel on the invitation of the proprietor, innkeeper and his guest. Thus, in Com. and for the latter's profit and advantage, v. Power, 7 Met. 596, 601, 41 Am. Dec. 465, and upon the implied understanding that Chief Justice Shaw, said: “An owner of while on the premises as a guest he shall a steamboat or railroad in this respect is receive courteous and considerate treatment in a condition somewhat similar to that of from the proprietor and all persons

who an innkeeper whose premises are open to are his servants, or, at least, upon the imall guests. Yet he is not only empowered, plied understanding that while beneath his but he is bound, so to regulate his house, roof the life of the guest shall not be imas well with regard to the peace and com- periled by the rash, inconsiderate, or fort of his guests who there seek repose as wrongful acts of those who are his sorvants. to the peace and quiet of the vicinity, as to The general law of hospitality would seem repress and prohibit all disorderly conduct to impose such an obligation upon an inntherein; and, of course, he has a right and keeper. He promises suitable entertainis bound to exclude from his premises all ment to all his guests, as well as respectdisorderly persons and all persons not con- ful, considerate, and proper treatment forming to regulations necessary and proper on the part of all his servants. If a seryto secure such quiet and good order." ant of a hotel, when off duty, should

This remark was quoted with approval meet a guest outside of the hotel, and by Ryan, Ch. J., in Bass v. Chicago & N. W. not on the premises, and there assault R. Co. 36 Wis. 450, 459, 17 Am. Rep. 495. | him, it is doubtless true—although the case

Also in Jencks v. Coleman, 2 Sumn. 221, at bar requires no decision on that point226, Fed. Cas. No. 7,258, Mr. Justice Story that the innkeeper could not be charged compared the rights and duties of a car- with responsibility for the servant's conrier with those of an innkeeper, upon the duct; and it is probably true that the innevident assumption that the relation of an keeper would not be responsible for an asinnkeeper to his guest was practically like sault committed on one of his guests withthat of a carrier to a passenger.

in the hotel by a stranger, provided he has In Norcross v. Norcross, 53 Me. 163, 169, taken all reasonable precautions to prethe supreme court of that state remarked. vent such occurrences by excluding disorwhen considering an innkeeper's liability derly persons from his premises. But in for the property of his guest, that “inn my opinion the law casts on the innkeeper keepers are under the same liability as an obligation to see to it that his guost common carriers."

is not injured, while within the hotel, by And in the case of Dickson v. Waldron, the wrongful, inconsiderate, or negligent 135 Ind. 507, 24 L. R. A. 483, 41 Am. St. acts of those who are his servants. Rep. 440, 34 N. E. 506, 510, 35 N. E. 1, It is said in the opinion of the mithe supreme court of Indiana remarked: jority that an innkeeper is not an insurer "But common carriers, innkeepers, mer. of the safety of the person of his guest chants, managers of theaters, and others while within the hotel. The same may who invite the public to become their pa- be said of carriers. They do not insure trons and guests, and thus submit personal the personal safety of passengers, but only safety and comfort to their keeping, owe to exercise a very high degree of care, or, a more special duty to those who may ac- as it is sometimes said, “the utmost care,” cept such invitation. Such patrons and for their protection. Yet it is now well guests have a right to ask that they shall settled that this duty is so comprehonsive be protected from injury while present on that it renders the carrier responsible for injuries inflicted on passengers so long as service. When he embarks in the business the relation of carrier and passenger exists, of keeping a hotel, he is bound to provide not only by the negligent acts of its serv- entertainment for all travelers who seek a ants done while in the performance of place of rest and refreshment, provided some duty, but also by their wilful and they come to him in a fit condition to be wrongful acts, such as assaults committed entertained as guests, and are able to pay on passengers or indignities offered to them. the customary charges. Unless relieved of The obligation also rests on the carrier to the obligation by an express statute, the protect its passengers while in transit, not innkeeper, like the carrier, is an insurer of only against the wilful and wrongful acts his guests' baggage against loss occasioned of its own servants, but so far as practi- otherwise than by an act of God or the cable from acts of violence committed by public enemy. 16 Am. & Eng. Enc. Law, strangers and copassengers. It makes no 2d ed. p. 528, and cases there cited. Bedifference, as seems, what motive may sides, an innkeeper is vested with the same have actuated a servant of the carrier in power of control over his premises which committing the wrongful act complained the carrier exercises over such means of of, or whether it was done in conformi'y public conveyance as he provides. An innwith the carrier's orders, or in express keeper has the right to exclude from his violation thereof and on the sole responsi- premises all disorderly persons, and to supbility of the servant; for, if it was done press all disturbances therein that tend to while the relation of carrier and passengar disturb his guests or imperil their safety, existed, the carrier is responsible, and it and, according to the decision of Chief cannot defend on the ground that the act | Justice Shaw in the case above cited (7 of its servant was done without its sanction Met. 596, 601), it is his common-law duty and at a moment when he was not rendering to exercise this power. Aside from these any special service to the carrier. A dif- considerations, the innkeeper, like the carferent rule obtains, of course, as respects rier, has the exclusive right to select all wilful and wrongful acts done by employees of the persons who are to aid him in the to those to whom the carrier at the time discharge of his quasi public functions. owed no other or greater duty of protec- I have been unable, therefore, to discover tion than it owed to every other person in any sufficient reason why he should not be the community; but, when the peculiar held responsible to his guests for the conrelation of carrier and passenger' exists, sequences of any wilful and wrongful acts the modern rule appears to be that the of his servants, committed within the hotel, carrier is under an obligation to see to it to the same extent that the carrier is rethat a passenger suffers no harm on account sponsible to his passengers for like wrongful of the wrongful and wilful acts of its sery. acts of its servants; and within the auants, and that every practicable precaution thorities above cited a carrier would be is taken to protect him against the wrong-clearly responsible to one of its passengers ful acts of strangers and copassengers. for an injury inflicted by one of its emStewart v. Brooklyn & C. T. R. Co. 90 N. ployees under such circumstances as those Y. 588, 43 Am. Rep. 185; Divinelle v. Neu disclosed in the present case. York C. & H. R. R. Co. 120 N. Y. 117, 125, Relative to the authorities cited in the 8 L. R. A. 224, 17 Am. St. Rep. 611, 24 N. majority opinion and not already referred E. 319; Goddard v. Grand Trunk R. Co. to, this may be said: Calye's Case, 8 Coke, 57 Me. 202, 213, 2 Am. Rep. 39, and cises | 32a, 33b, contains the single detached statethere cited; Bryant v. Rich, 106 Mass. 188, ment that, “if the guest be beaten in the 8 Am. Rep. 311; Spohn v. Missouri P. R. inn, the innkeeper shall not answer for Co. 87 Mo. 74, 80; Craker v. Chicago & it.” But it does not say by whom beaten, N. W. R. Co. 36 Wis. 657, 17 Am. Rep. whether by a servant of the innkeeper or 504; Pendleton v. Kinsley, 3 Cliff. 416, by a stranger. This, however, is a very 427, Fed. Cas. No. 10.922; Chicago & old case, decided in 1584, and the statement E. R. Co. v. Flexman, 103 Ill. 546, 42 Am. quoted is purely dictum since the case inRep. 33; Terre Haute & l. R. Co. v. Jack. volved no question respecting the liability son, 81 Ind. 19.

of an innkeeper for an assault committed Now, it is true that a hotel is an immov- upon a guest within the hotel. Moreover, able structure, and does not run on whe?ls as the learned editor of the American & like a train of cars; but in all other re- English Encyclopædia of Law remarks, in spects the relation existing between an inn- substance (vide vol. 16, 2d ed. p. 545), it keeper and his guest is like that existing may well be doubted whether the statement between a carrier and passenger, and this above quoted would be accepted at the fact has always been recognized, as shown present day as authority for the doctrine by the cases above cited. An innkeeper, which it enunciates, since the modern au. like a carrier, is engaged in a quasi public thorities are opposed to the view that an

innkeeper cannot be held responsible for an, in one of them (Sandys v. Florence, 47 assault committed upon one of his guests L. J. C. P. N. S. 598, 600) it was rewithin the hotel by a servant, or even by marked, arguendo, in discussing a demurrer a stranger when the innkeeper has not tak- to the complaint, that an innkeeper's duty en proper care to exclude disorderly per- “is not to insure his guests, but to see only sons from his premises.

1

that they did not suffer from want of reaCurtis v. Dinncen, 4 Dak. 245, 30 N. W. i sonable and proper care on his part.” None 148, was a case in which a guest of a hotel , of the cases, however, discuss the particular kept by a married woman sought to hold question which is presented in the case at her responsible for an assault and battery bar, whether an innkeeper is liable to his committed by her husband without her con- guest for the reckless conduct of one of his sent or ratification. The husband was liv, servants committed upon the hotel premises, ing with the wife in the hotel, as he had whereby the life of the guest is jeopardized. a right to do, and was assisting her to In my judgment an innkeeper ought to be operate it, so that the case em- held liable for an act of that nature, and barrassed by the existence of the marital as respects that question I concur in the relation; the court holding that under view which was expressed by the supreme the circumstances the wife could not be court of Nebraska in Clancy v. Barker, held responsible for the tort of the hus- ante, 642, 98 N. W. 440, that was decided band.

upon the same state of facts which this The other cases that are referred to record discloses. are without exception cases where it was I think the judgment below should be resought to hold the innkeeper responsible versed, and a new trial ordered. for some defect in the hotel premises, and

was

TENNESSEE SUPREME COURT.

V.

LOUISVILLE & NASHVILLE RAILROAD, a verdict and judgment against the comCOMPANY, Appt.,

pany for the sum of $1,300 damages for

personal injuries. The company appealed, John H. SAWYER.

and has assigned errors.

The gravamen of the action, as alleged in Tenn.....

the declaration, is that Sawyer was driving

in a buggy along a turnpike road, and, when duty to sound warnings when about to pass under the overhead trestle trains approach a trestle over a high: of the company, a train of cars rapidly came way depends upon the dangerous character of

upon the tracks, frightening plaintiff's the place, which is a question for the determination of the jury.

horse, overturning the buggy, and throwing

plaintiff to the ground, as the result of (March 25, 1905.)

which he sustained serious personal injuries. The theory of the plaintiff below was that

The

of the Circuit Court for Williainson pany was guilty of negligence in not warnCounty in favor of plaintiff in an action ing the public of an approaching train. brought to recover damages for personal in- The declaration comprises five counts, but juries alleged to have been caused by defend the substance of the complaint, as alleged ant's negligence. Reversed.

in the first count, is: “Said defendant, The facts are stated in the opinion. Louisville & Nashville Railroad Company,

Messrs. John Bell Kuhle, C. R. Berry, through and by its agents and servants, did and Henderson & Henderson for appel- carelessly, wantonly, negligently, and wrong. lant.

fully, and without notice or warning to Messrs. Hearn, McCorkle, & Lane for plaintiff, run, drive, and propel one of its appellee.

said engines and trains of cars up to, upon,

over, and across said overhead bridge, directMcAlister, J., delivered the opinion of ly over and above said line of pike road upthe court:

on which plaintiff was traveling in the way The defendant in error, Sawyer, recovered and manner aforesaid, on account of which

careless, wanton, negligent, and wrongful act NOTE.-As to duty to give signal when trains

of defendant railroad company, the horse approach a trestle over highway, see also, in this series, Rupard v. Chesapeake & 0. R. Co., which plaintiff

' was driving became fright7 L. R. A. 316,

ened," etc.

There is no complaint, either in the der- | ing along the highway. On the other hand, laration or proof, that the horse was fright- it is insisted on behalf of the company there ened in consequence of any excessive or un is no common-law obligation on a railroad usual whistling or ringing of the bell or es company to sound signals at an underpass, caping of steam, which is usually the foun- and no liability for any injury resulting dation of such actions, as illustrated by the from the frightening of a horse by the lawcase of Mitchell v. Nashville, C. & St. L. R. ful and reasonable operation of a train over Co. 100 Tenn. 329, 40 L. R. A. 426, 45 S. W. an underpass. The company therefore as337.

signs as error the following instruction of But it is conceded that the train ap- the trial judge on this subject, viz. : proached this overhead bridge under which "It was the duty of the defendant comthe plaintiff was about to pass almost noise- pany to give plaintiff reasonable warning of lessly.

the approach of its trains, by the usual sigThe complaint in this declaration is that nals, so as to put plaintiff upon his guard on it was the legal duty of the railroad company his approaching or passing under the track. to warn travelers upon the highway, about If you believe from the evidence in this to pass under the railroad track, of the ap- case that the plaintiff, on approaching the proach of the train, and the failure of the overhead bridge, was in the exercise of due company to perform this duty was the prox care and caution, as defined to you above, imate cause of the accident.

and while passing under the overhead bridge There is proof tending to show that at the defendant's train ran over the bridge, the locus in quo of the accident the Louis- having given plaintiff no reasonable warning ville & Nashville Railroad crosses the Frank- of the approach in the usual way, by ringing lin & Nolensville Turnpike by means of an the bell or blowing the whistle; and if the overhead trestle, resting upon massive rock noise of the sudden approaching train passwalls, which project out on either side of ing over the road scared the plaintiff's horse the railroad, forming a narrow and restrict- and caused him to run away, throwing the ed passageway under the railroad. The view plaintiff out of his buggy; and if the negliof the approaching train was to some ex- gence of the defendant, through its servants tent obstructed by houses, walls, hedges, etc.; or agents, by failing to give such warning, and, though plaintiff was looking and listen was the proximate cause (that is, the direct ing for any train that might be coming from and efficient cause) of his injuries, without either direction, he neither saw nor heard which his injuries would not have occurred, the approaching train until about to start then the defendant company is liable, and under the overhead bridge, when this train, your verdict should be for the plaintiff.” running at the rate of about 40 miles an It is conceded by counsel on both sides hour, suddenly appeared and passed over said that the question thus presented by the trestle while plaintiff was passing under it, charge of the trial judge is one of first imor just as he emerged from it on the eastern pression in this state. It is conceded by side. As a result thereof, plaintiff's horse counsel for the company that, under the aubecame frightened, throwing plaintiff from thorities, if this were a grade crossing, the the buggy to the ground, breaking his collar company would be onerated with some combone, and inflicting other serious personal mon-law duty to warn travelers of its apinjuries. There is proof tending to show proach, but claimed that no such duty apthat, as a consequence of the fracture of plies when the traveler is not compelled to plaintiff's collar bone, a knot or malforma pass over the railroad track, but beneath tion had appeared on that part of his breast it. and shoulder where said collar bone was As illustrating the position of counsel for broken. According to the proof, the whistle the company, the case of Favor v. Boston was not sounded, nor the bell rung, as the E L. R. Corp. 114 Mass. 350, 19 Am. Rep. train approached this overhead crossing. 364, is cited, in which the court used this It is insisted that the company was under language, viz.: no obligation to ring the bell or sound the “Where a railroad crosses a highway at whistle at this point in obedience to the grade, the law imposes upon it the duty of requirements of the statute, since the ob- giving notice to travelers of the approach of struction was not upon the track of the com its trains. . . This rule applies bepany, but beneath it.

cause at grade crossings the traveler on The theory of the plaintiff is that the com the highway and the railroad enjoy a company was under a common-law duty to sound mon privilege on the highway itself, and the whistle on approaching a public highway each must use such privilege with due reextending under the railroad trestle, and gard to the safety and rights of the other. which crossing, by reason of the topography

And as a train of cars is a dangerof the country and the surrounding environ- ous power when in motion, and capable of ment, was dangerous to the public travel- | doing great injury, a high degree of care

even

is demanded of the railroad in controlling it, avoid accident. If, therefore, the defendant and some notice of its approach to the high- is liable in this action, it is so because it way is required both by the rules of the com- failed to comply with the requirements of mon law and by statute. But where a rail. the statute prescribing its duty when its road crosses a highway by a bridge, it does train approached the crossing of the highnot, in common with the traveler, have any way." privilege in or use of the highway it-elf. In Jenson v..Chicago, St. P. M. & 0. Though the track and the highway are near R. Co. 86 Wis. 589, 22 L. R. A. 680, 57 N. and adjacent to each other, they are entire W. 359, the court said as follows: "It is ly distinct and separate. The railroad has certainly no wrong for the train to be no rights in the highway, and consequently run over such bridges in the usual and the same duties are not imposed upon it ordinary way, and in this way that are imposed when it passes over the some horses going under the bridge, or highway itself in common with the traveler. being near it at the same time, might It has the right to use its roadbed and be frightened by it. The trains must necesbridge as a railroad may use them,-by sarily make considerable noise going over running its trains at the common rate of the bridge. They cannot be run without it. speed, accompanied by the usual noises at. It is not by any means certain that a train tendant upon such exercise of its rights. would make less noise going over slowly It is not bound by law to notify the travel than faster. What degree of noise must it er of its intention to use its bridge in the make, to frighten horses ? .. As to ordinary and usual manner."

ringing the bell and blowing the whistle, In Ryan v. Pennsylvania R. Co. 132 Pa. they are only required, if at all, in order 304, 19 Atl. 81, it appeared that plaintiffs to avoid frightening horses, and, with that were driving under defendant's railroad up view, to warn the traveler on the highway on a public street, when a train crossing to stop. Where should he stop, and how overhead frightened their horse so that it near the bridge? If near the bridge, and became unmanageable and ran away, inflict. his horse is liable to be frightened and run ing serious personal injuries, and resulting away, he will be in a muc more dangerous in the death of one of the children. The condition than if he should drive on and court said: “The defendant company was take his chànces, for the horse, facing the operating its road in a lawful manner. No train rushing over the bridge, would turn defect was shown in the construction of the suddenly around to escape danger, and upset road. On the contrary, it was the work the carriage.” of competent engineers, approved by the The cases just mentioned comprise all chief engineer and surveyor of the city, and those cited by counsel for the company in in pursuance of an ordinance of councils ex: support of their contention that the charge pressly authorizing it. The sight and sound of the circuit judge was erroneous. The auof a moving train always have a tendency thorities holding the contrary doctrine will to frighten horses. In this case the fright now be considered. Rapalje & Mack, in was occasioned by the sound. We cannot their Digest of Railway Law, vol. 3, § 92, p. measure, nor can a jury be properly allowed 493, state the law thus: "Independently to measure, the amount of sound which may of statute, it is the duty of those in charge be made by a railroad train, either in cross- of a train to give notice of their approach ing bridges at overhead crossings or at other at all points of known or reasonably applaces. The defendant company, under all the authorities, has the right to operate its prehended danger;" citing Chicago & A. R. road in a lawful manner; and, when it does Co. v, Dillon, 123 III. 570, 5 Am. St. Rep. so without negligence and without malice. 559, 15 N. E. 181; Pennsylvania Co. v. it is not responsible for injuries occasioned Krick, 47 Ind. 368; Winstanley v. Chicago,

1. & St. P. R. Co. 72 Wis. 375, 39 thereby."

In Ransom v. Chicago, St. P. M. &0. R. N. W. 856. “The absence of a statute Co. 62 Wis. 178, 51 Am. Rep. 718, 22 N. requiring the ringing of a bell or the W. 147, liability was adjudged against the sounding of a whistle in approaching highcompany for breach of a statute of that way crossings will not excuse the comstate requiring certain precautions to be pany for a failure to do so under all cirobserved by railroad companies before cross

cumstances. Where the view of approach ing any highway; causing a horse to run ing trains is obstructed, or it is impossible away near a crossing, and inflicting person- or very difficult to hear them, and in simial injuries on plaintiff's wife. The court lar cases, it is clearly the duty of the comsaid: “There is no statute, and we are pany to give such signals, although not reaware of no common-law which, unquired statute;" citing authorities. der such circumstances, requires railroad "Whether, in a given case, ordinary care recompanies to observe those precautions to quires the giving of such signals, is a ques

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