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gaged in rendering any service for his master, but was momentarily off duty and awaiting orders. The majority of the court decide that question in the affirmative, holding, as I understand, that, if the proprietor of a hotel exercises ordinary care in the selection of his servants, he not responsible to his guests for any of their acts committed, even within the hotel, no matter how rash, negligent, or brutal they may be, nor how seriously a guest may be injured, provided the servant was not at the moment engaged in some work for and in behalf of the master. I am unable to assent to this doctrine.

The relation existing between a carrier and a passenger has on numerous occasions been likened to that existing between an innkeeper and his guest. Thus, in Com. v. Power, 7 Met. 596, 601, 41 Am. Dec. 465, Chief Justice Shaw, said: "An owner of a steamboat or railroad in this respect is in a condition somewhat similar to that of an innkeeper whose premises are open to all guests. Yet he is not only empowered, but he is bound, so to regulate his house, as well with regard to the peace and comfort of his guests who there seek repose as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and, of course, he has a right and is bound to exclude from his premises all disorderly persons and all persons not conforming to regulations necessary and proper to secure such quiet and good order."

This remark was quoted with approval by Ryan, Ch. J., in Bass v. Chicago & N. W. R. Co. 36 Wis. 450, 459, 17 Am. Rep. 495. Also in Jencks v. Coleman, 2 Sumn. 221, 226, Fed. Cas. No. 7,258, Mr. Justice Story compared the rights and duties of a carrier with those of an innkeeper, upon the evident assumption that the relation of an innkeeper to his guest was practically like that of a carrier to a passenger.

In Norcross v. Norcross, 53 Me. 163, 169, the supreme court of that state remarked. when considering an innkeeper's liability for the property of his guest, that "inn keepers are under the same liability as common carriers."

such invitation, and particularly that they shall not suffer wrong from the agents and servants of those who have invited them."

Also in the case of Pinkerton v. Woodward, 33 Cal. 557, 585, 91 Am. Dec. 657, it was held that the liability of innkeepers and of common carri is for ded upon the same considerations of public policy in the one case as in the other.

And in the case of Dickson v. Waldron, 135 Ind. 507, 24 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. 506, 510, 35 N. E. 1, the supreme court of Indiana remarked: "But common carriers, innkeepers, merchants, managers of theaters, and others who invite the public to become their patrons and guests, and thus submit personal safety and comfort to their keeping, owe a more special duty to those who may ac cept such invitation. Such patrons and guests have a right to ask that they shall be protected from injury while present on

In the absence of express authority on this point I should be of opinion that an innkeeper is under the same obligation to protect his guests against the wrongful and discourteous acts of his servants, committed within or upon his premises, as a carrier to protect its passengers against like acts of its employees. A guest comes to a hotel on the invitation of the proprietor, and for the latter's profit and advantage, and upon the implied understanding that while on the premises as a guest he shall receive courteous and considerate treatment from the proprietor and all persons who are his servants, or, at least, upon the implied understanding that while beneath his roof the life of the guest shall not be imperiled by the rash, inconsiderate, or wrongful acts of those who are his servants. The general law of hospitality would seem to impose such an obligation upon an innkeeper. He promises suitable entertainment to all his guests, as well as respectful, considerate, and proper treatment on the part of all his servants. If a servant of a hotel, when off duty, should meet a guest outside of the hotel, and not on the premises, and there assault him, it is doubtless true-although the case at bar requires no decision on that pointthat the innkeeper could not be charged with responsibility for the servant's conduct; and it is probably true that the innkeeper would not be responsible for an assault committed on one of his guests within the hotel by a stranger, provided he has taken all reasonable precautions to prevent such occurrences by excluding disorderly persons from his premises. But in my opinion the law casts on the innkeeper an obligation to see to it that his guest is not injured, while within the hotel, by the wrongful, inconsiderate, or negligent acts of those who are his servants.

It is said in the opinion of the majority that an innkeeper is not an insurer of the safety of the person of his guest while within the hotel. The same may be said of carriers. They do not insure the personal safety of passengers, but only to exercise a very high degree of care, or, as it is sometimes said, "the utmost care," for their protection. Yet it is now well settled that this duty is so comprehensive that it renders the carrier responsible for

injuries inflicted on passengers so long as the relation of carrier and passenger exists, not only by the negligent acts of its servants done while in the performance of some duty, but also by their wilful and wrongful acts, such as assaults committed on passengers or indignities offered to them. The obligation also rests on the carrier to protect its passengers while in transit, not only against the wilful and wrongful acts of its own servants, but so far as practicable from acts of violence committed by strangers and copassengers. It makes no difference, as it seems, what motive may have actuated a servant of the carrier in committing the wrongful act complained of, or whether it was done in conformity with the carrier's orders, or in express violation thereof and on the sole responsibility of the servant; for, if it was done while the relation of carrier and passenger existed, the carrier is responsible, and it cannot defend on the ground that the act of its servant was done without its sanction and at a moment when he was not rendering any special service to the carrier. A different rule obtains, of course, as respects wilful and wrongful acts done by employees to those to whom the carrier at the time owed no other or greater duty of protection than it owed to every other person in the community; but, when the peculiar relation of carrier and passenger exists, the modern rule appears to be that the carrier is under an obligation to see to it that a passenger suffers no harm on account of the wrongful and wilful acts of its servants, and that every practicable precaution is taken to protect him against the wrongful acts of strangers and copassengers. Stewart v. Brooklyn & C. T. R. Co. 90 N. Y. 588, 43 Am. Rep. 185; Dwinelle v. New 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 cises 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. 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 au thorities are opposed to the view that an

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

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

service. When he embarks in the business of keeping a hotel, he is bound to provide entertainment for all travelers who seek a place of rest and refreshment, provided they come to him in a fit condition to be entertained as guests, and are able to pay the customary charges. Unless relieved of the obligation by an express statute, the innkeeper, like the carrier, is an insurer of his guests' baggage against loss occasioned otherwise than by an act of God or the public enemy. 16 Am. & Eng. Enc. Law, 2d ed. p. 528, and cases there cited. Besides, an innkeeper is vested with the same power of control over his premises which the carrier exercises over such means of public conveyance as he provides. An innkeeper has the right to exclude from his premises all disorderly persons, and to suppress all disturbances therein that tend to disturb his guests or imperil their safety, and, according to the decision of Chief Justice Shaw in the case above cited (7 Met. 596, 601), it is his common-law duty to exercise this power. Aside from these considerations, the innkeeper, like the carrier, has the exclusive right to select all of the persons who are to aid him in the discharge of his quasi public functions. I have been unable, therefore, to discover any sufficient reason why he should not be held responsible to his guests for the consequences of any wilful and wrongful acts of his servants, committed within the hotel, to the same extent that the carrier is responsible to his passengers for like wrongful acts of its servants; and within the authorities above cited a carrier would be clearly responsible to one of its passengers for an injury inflicted by one of its employees under such circumstances as those disclosed in the present case.

innkeeper cannot be held responsible for an 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.

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 husband.

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

LOUISVILLE & NASHVILLE RAILROAD
COMPANY, Appt.,

v.

TENNESSEE SUPREME COURT.

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 plaintiff, run, drive, and propel one of its 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 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 of defendant railroad company, the horse which plaintiff was driving became frightened," etc.

John H. SAWYER.

Tenn...... .)

The duty to sound warnings when trains approach a trestle over a high way depends upon the dangerous character of the place, which is a question for the determination of the jury.

(March 25, 1905.)

PPEAL by defendant from a judgment A of the Circuit Court for Williamson County in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Reversed.

in one of them (Sandys v. Florence, 47 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, ante, 642, 98 N. W. 440, that was decided upon the same state of facts which this record discloses.

The facts are stated in the opinion. Messrs. John Bell Kuhle, C. R. Berry, and Henderson & Henderson for appel

lant.

Messrs. Hearn, McCorkle, & Lane for appellee.

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

NOTE. AS to duty to give signal when trains approach a trestle over highway, see also, in this series, Rupard v. Chesapeake & O. R. Co.

7 L. R. A. 316.

1905.

There is no complaint, either in the declaration 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.

ing along the highway.

On the other hand, 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. :

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.

663

"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 counsel on both sides that the question thus presented by the It is conceded by 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 . . This rule applies begiving notice to travelers of the approach of its trains. cause at grade crossings the traveler on the highway and the railroad enjoy a comThe theory of the plaintiff is that the common privilege on the highway itself, and pany was under a common-law duty to sound 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. And as a train of cars is a dangerwhich crossing, by reason of the topography ous power when in motion, and capable of of the country and the surrounding environment, was dangerous to the public travel- | doing great injury, a high degree of care

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is demanded of the railroad in controlling it, | avoid accident. If, therefore, the defendant

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."

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 neces-
sarily 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."

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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. The au-
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:
of statute, it is the duty of those in charge
"Independently
at all points of known or reasonably ap-
of a train to give notice of their approach
prehended danger;" citing Chicago & A. R.
Co. v. Dillon, 123 Ill. 570, 5 Am. St. Rep.
559, 15 N. E. 181; Pennsylvania Co. v.
Krick, 47 Ind. 368; Winstanley v.
Chicago,
M. & St. P. R. Co. 72 Wis. 375, 39
N. W. 856. "The absence of a statute
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-

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