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 it 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 conformity 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 passenger 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 serv- 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; Dwinelle v. New disclosed in the present case. York C. & H. R. R. Co. 120 N. Y. 117, 125, 8 L. R. A. 224, 17 Am. St. Rep. 611, 24 N. E. 319; Goddard v. Grand Trunk R. Co. 57 Me. 202, 213, 2 Am. Rep. 39, and crses there cited; Bryant v. Rich, 106 Mass. 188, 8 Am. Rep. 311; Spohn v. Missouri P. R. Co. 87 Mo. 74, 80; Craker v. Chicago & N. W. R. Co. 36 Wis. 657, 17 Am. Rep. 504; Pendleton v. Kinsley, 3 Cliff. 416, 427, Fed. Cas. No. 10.922; Chicago & E. R. Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33; Terre Haute & I. R. Co. v. Jack-volved no question respecting the liability son, 81 Ind. 19.

Now, it is true that a hotel is an immovable structure, and does not run on wheels like a train of cars; but in all other respects the relation existing between an innkeeper and his guest is like that existing between a carrier and passenger, and this fact has always been recognized, as shown by the cases above cited. An innkeeper, like a carrier, is engaged in a quasi public

Relative to the authorities cited in the majority opinion and not already referred to, this may be said: Calye's Case, 8 Coke, 32a, 33b, contains the single detached statement that, "if the guest be beaten in the inn, the innkeeper shall not answer for it." But it does not say by whom beaten, whether by a servant of the innkeeper or by a stranger. This, however, is a very old case, decided in 1584, and the statement quoted is purely dictum since the case in

of an innkeeper for an assault committed upon a guest within the hotel. Moreover, as the learned editor of the American & English Encyclopædia of Law remarks, in substance (vide vol. 16, 2d ed. p. 545), it may well be doubted whether the statement above quoted would be accepted at the present day as authority for the doctrine which it enunciates, since the modern authorities 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 within the hotel by a servant, or even by a stranger when the innkeeper has not taken proper care to exclude disorderly persons from his premises.

L. J. C. P. N. S. 598, 600) it was remarked, arguendo, in discussing a demurrer to the complaint, that an innkeeper's duty "is not to insure his guests, but to see only that they did not suffer from want of reasonable and proper care on his part." None of the cases, however, discuss the particular question which is presented in the case at bar, whether an innkeeper is liable to his guest for the reckless conduct of one of his servants committed upon the hotel premises, whereby the life of the guest is jeopardized. In my judgment an innkeeper ought to be held liable for an act of that nature, and as respects that question I concur in the view which was expressed by the supreme court of Nebraska in Clancy v. Barker,

Curtis v. Dinneen, 4 Dak. 245, 30 N. W. 148, was a case in which a guest of a hotel kept by a married woman sought to hold her responsible for an assault and battery committed by her husband without her consent or ratification. The husband was living with the wife in the hotel, as he had a right to do, and was assisting her to operate it, so that the case was embarrassed by the existence of the marital relation; the court holding that under the circumstances the wife could not be held responsible for the tort of the hus-ante, 642, 98 N. W. 440, that was decided band.

The other cases that are referred to are without exception cases where it was sought to hold the innkeeper responsible for some defect in the hotel premises, and

upon the same state of facts which this record discloses.

I think the judgment below should be reversed, and a new trial ordered.

TENNESSEE SUPREME COURT.

lant.

a verdict and judgment against the company for the sum of $1,300 damages for personal injuries. The company appealed, and has assigned errors.

The gravamen of the action, as alleged in the declaration, is that Sawyer was driving in a buggy along a turnpike road, and, when about to pass under the overhead trestle of the company, a train of cars rapidly came upon the tracks, frightening plaintiff's horse, overturning the buggy, and throwing plaintiff to the ground, as the result of which he sustained serious personal injuries. The theory of the plaintiff below was that this was a dangerous crossing, and the company was guilty of negligence in not warning the public of an approaching train.

The declaration comprises five counts, but the substance of the complaint, as alleged in the first count, is: "Said defendant, Louisville & Nashville Railroad Company, through and by its agents and servants, did carelessly, wantonly, negligently, and wrongfully, 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, direct

McAlister, J., delivered the opinion of ly over and above said line of pike road up

There is no complaint, either in the dec- | ing along the highway. On the other hand, laration or proof, that the horse was frightened in consequence of any excessive or unusual whistling or ringing of the bell or escaping of steam, which is usually the foundation of such actions, as illustrated by the case of Mitchell v. Nashville, C. & St. L. R. Co. 100 Tenn. 329, 40 L. R. A. 426, 45 S. W.

337.

But it is conceded that the train approached this overhead bridge under which the plaintiff was about to pass almost noiselessly.

The complaint in this declaration is that it was the legal duty of the railroad company to warn travelers upon the highway, about to pass under the railroad track, of the approach of the train, and the failure of the company to perform this duty was the proximate cause of the accident..

There is proof tending to show that at the locus in quo of the accident the Louisville & Nashville Railroad crosses the Franklin & Nolensville Turnpike by means of an overhead trestle, resting upon massive rock walls, which project out on either side of the railroad, forming a narrow and restricted passageway under the railroad. The view of the approaching train was to some extent obstructed by houses, walls, hedges, etc.; and, though plaintiff was looking and listening for any train that might be coming from either direction, he neither saw nor heard the approaching train until about to start under the overhead bridge, when this train, running at the rate of about 40 miles an hour, suddenly appeared and passed over said trestle while plaintiff was passing under it, or just as he emerged from it on the eastern side. As a result thereof, plaintiff's horse became frightened, throwing plaintiff from the buggy to the ground, breaking his collar bone, and inflicting other serious personal injuries. There is proof tending to show that, as a consequence of the fracture of plaintiff's collar bone, a knot or malformation had appeared on that part of his breast and shoulder where said collar bone was broken. According to the proof, the whistle was not sounded, nor the bell rung, as the train approached this overhead crossing. It is insisted that the company was under no obligation to ring the bell or sound the whistle at this point in obedience to the requirements of the statute, since the obstruction was not upon the track of the company, but beneath it.

The theory of the plaintiff is that the company was under a common-law duty to sound the whistle on approaching a public highway extending under the railroad trestle, and which crossing, by reason of the topography of the country and the surrounding environment, was dangerous to the public travel

it is insisted on behalf of the company there is no common-law obligation on a railroad company to sound signals at an underpass, and no liability for any injury resulting from the frightening of a horse by the lawful and reasonable operation of a train over an underpass. The company therefore assigns as error the following instruction of the trial judge on this subject, viz. :

"It was the duty of the defendant company to give plaintiff reasonable warning of the approach of its trains, by the usual signals, so as to put plaintiff upon his guard on his approaching or passing under the track. If you believe from the evidence in this case that the plaintiff, on approaching the overhead bridge, was in the exercise of due care and caution, as defined to you above, and while passing under the overhead bridge the defendant's train ran over the bridge, having given plaintiff no reasonable warning of the approach in the usual way, by ringing the bell or blowing the whistle; and if the noise of the sudden approaching train passing over the road scared the plaintiff's horse and caused him to run away, throwing the plaintiff out of his buggy; and if the negligence of the defendant, through its servants or agents, by failing to give such warning, was the proximate cause (that is, the direct and efficient cause) of his injuries, without which his injuries would not have occurred, then the defendant company is liable, and your verdict should be for the plaintiff.”

It is conceded by

It is conceded by counsel on both sides that the question thus presented by the charge of the trial judge is one of first impression in this state. counsel for the company that, under the authorities, if this were a grade crossing, the company would be onerated with some common-law duty to warn travelers of its approach, but claimed that no such duty applies when the traveler is not compelled to pass over the railroad track, but beneath it.

As illustrating the position of counsel for the company, the case of Favor v. Boston & L. R. Corp. 114 Mass. 350, 19 Am. Rep. 364, is cited, in which the court used this language, viz.:

"Where a railroad crosses a highway at grade, the law imposes upon it the, duty of giving notice to travelers of the approach of its trains. This rule applies because at grade crossings the traveler on the highway and the railroad enjoy a common privilege on the highway itself, and each must use such privilege with due regard to the safety and rights of the other.

And as a train of cars is a danger

ous power when in motion, and capable of doing great injury, a high degree of care

is liable in this action, it is so because it
failed to comply with the requirements of
the statute prescribing its duty when its
train approached the crossing of the high-
way."

is demanded of the railroad in controlling it, | avoid accident. If, therefore, the defendant
and some notice of its approach to the high-
way is required both by the rules of the com-
mon law and by statute. But where a rail-
road crosses a highway by a bridge, it does
not, in common with the traveler, have any
privilege in or use of the highway itself.
Though the track and the highway are near
and adjacent to each other, they are entire-
ly distinct and separate. The railroad has
no rights in the highway, and consequently
the same duties are not imposed upon it
that are imposed when it passes over the
highway itself in common with the traveler.
It has the right to use its roadbed and
bridge as a railroad may use them,-by
running its trains at the common rate of
speed, accompanied by the usual noises at-
tendant upon such exercise of its rights.
It is not bound by law to notify the travel-
er of its intention to use its bridge in the
ordinary and usual manner."

In Ryan v. Pennsylvania R. Co. 132 Pa. 304, 19 Atl. 81, it appeared that plaintiffs were driving under defendant's railroad upon a public street, when a train crossing overhead frightened their horse so that it became unmanageable and ran away, inflicting serious personal injuries, and resulting in the death of one of the children. The court said: "The defendant company was operating its road in a lawful manner. No defect was shown in the construction of the road. On the contrary, it was the work of competent engineers, approved by the chief engineer and surveyor of the city, and in pursuance of an ordinance of councils ex pressly authorizing it. The sight and sound of a moving train always have a tendency to frighten horses. In this case the fright was occasioned by the sound. We cannot measure, nor can a jury be properly allowed to measure, the amount of sound which may be made by a railroad train, either in crossing bridges at overhead crossings or at other places. The defendant company, under all the authorities, has the right to operate its road in a lawful manner; and, when it does so without negligence and without malice. it is not responsible for injuries occasioned thereby."

In Ransom v. Chicago, St. P. M. & O. R. Co. 62 Wis. 178, 51 Am. Rep. 718, 22 N. W. 147, liability was adjudged against the company for breach of a statute of that state requiring certain precautions to be observed by railroad companies before crossing any highway; causing a horse to run away near a crossing, and inflicting personal injuries on plaintiff's wife. The court said: "There is no statute, and we are aware of no common-law rule, which, under such circumstances, requires railroad companies to observe those precautions to

In Jenson v. Chicago, St. P. M. & 0. R. Co. 86 Wis. 589, 22 L. R. A. 680, 57 N. W. 359, the court said as follows: "It is certainly no wrong for the train to be run over such bridges in the usual and ordinary way, and even in this way some horses going under the bridge, or being near it at the same time, might be frightened by it. The trains must necessarily make considerable noise going over the bridge. They cannot be run without it. It is not by any means certain that a train would make less noise going over slowly than faster. What degree of noise must it make, to frighten horses? ... As to ringing the bell and blowing the whistle, they are only required, if at all, in order to avoid frightening horses, and, with that view, to warn the traveler on the highway to stop. Where should he stop, and how near the bridge? If near the bridge, and his horse is liable to be frightened and run away, he will be in a much more dangerous condition than if he should drive on and take his chances, for the horse, facing the train rushing over the bridge, would turn suddenly around to escape danger, and upset the carriage."

The au

The cases just mentioned comprise all
those cited by counsel for the company in
support of their contention that the charge
of the circuit judge was erroneous.
thorities holding the contrary doctrine will
now be considered. Rapalje & Mack, in
their Digest of Railway Law, vol. 3, § 92, p.
493, state the law thus: "Independently
of statute, it is the duty of those in charge
of a train to give notice of their approach
at all points of known or reasonably ap-
Co. v. Dillon, 123 Ill. 570, 5 Am. St. Rep.
prehended danger;" citing Chicago & A. R.
559, 15 N. E. 181; Pennsylvania Co. v.
Krick, 47 Ind. 368; Winstanley v. Chicago,
M. & St. P. R. Co. 72 Wis. 375, 39
a statute
N. W. 856. "The absence of
requiring the ringing of a bell or the
sounding of a whistle in approaching high-
way crossings will not excuse the com-
pany for a failure to do so under all cir-
cumstances. Where the view of approach-
ing trains is obstructed, or it is impossible
or very difficult to hear them, and in simi-
lar cases, it is clearly the duty of the com-
pany to give such signals, although not re-
quired by statute;" citing authorities.
"Whether, in a given case, ordinary care re-
quires the giving of such signals, is a ques-

1