
    Andrew McLeod, Appellant, v. The New York, Chicago and St. Louis Railroad Company, Respondent.
    
      Railroad detective — a passenger arrested by him on a chan'ge of taking money from another passenger, may sue the company— the act need not have been within the scope of the detective's employment — duty of a railroad company to its passengers.
    
    A railroad company is bound, as far as practicable, to protect its passengers while in transit from violence committed by strangers and co-passengers and also to protect them absolutely against the misconduct of its own servants.
    If a passenger sustains injury or damage hy reason of the misconduct of an employee of the railroad company, it is immaterial whether such servant was or was not acting within the scope of his employment.
    In an action brought against a railroad company to recover damages for the unlawful arrest and detention of the plaintiff, while a passenger on one of the defendant’s trains, by a detective in the employ of the defendant, evidence was given tending to show that the detective wrongfully accused the plaintiff of the theft of a twenty-dollar bill from a fellow passenger; that he searched, the plaintiff after the latter had appealed to the conductor for protection, and the conductor had refused to interfere; that, not finding the stolen money upon the plaintiff, the detective, against the protest of the .plaintiff and with the approval of the conductor, took the plaintiff from the train, and testified against him on an examination, and had him confined in jail, where he remained for a period of nine days, at the end of which he Was discharged.
    
      Held, that it was.for the jury to determine whether the detective’s act in removing the plaintiff from the train and the conductor’s act in sanctioning such removal, after the plaintiff had appealed to him for protection, constituted a violation of the defendant’s contract of carriage;
    That, if the jury so found, the defendant would be liable for the plaintiff's sub- . sequent arrest and detention, as such was the direct and proximate result of . the breach of duty.
    Van Brunt, P. J., dissented.
    Appeal by the plaintiff, Andrew McLeod, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York oh the 20th day of November, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    The action was brought to recover for the unlawful arrest and detention of plaintiff by defendant’s servant, a railroad detective, while he was a passenger on its train from Chicago to New York. The plaintiff is an actor and was on his way east' to keep professional engagements previously made and which he was unable to fulfill because of his arrest and detention. The situation as described by plaintiff’s witnesses, at the close of whose testimony the complaint was dismissed, was as follows:
    When the train carrying the plaintiff, a friend of his named Aldrich, a railroad detective named Wilkinson and an old gentleman among its passengers reached Fort Wayne, Ind., there was a stop of about five or ten minutes for luncheon and the plaintiff left the smoking car, got a cup of coffee and then went to the baggage car to see if his trunks had been put aboard. He then returned to the smoker and Aldrich informed him that the old gentleman had been cheated out of some money. He went to the latter and inquired about it, and the old gentleman told him that a man had asked him for a twenty-dollar bill in exchange for one-dollar bills and he gave it to him, and the man after counting the bills said there were but nineteen and he would go to the other car for the other dollar, which he did, carrying all the money and never returned, and he did not know who the stranger was. Aldrich testified that he remained in the car at Fort Wayne reading a book and that after plaintiff had gone out, a man passed his seat saying, “ that is all right; I will be right back,” and a little later he learned that the old gentleman who was sitting ahead of him had been robbed.
    When the train pulled out of Fort Wayne, the plaintiff, as he was passing through the car, was accosted by Wilkinson who asked if he had been speaking to the old gentleman and upon replying that he had, was requested to go to him, which he did, and Wilkinson then said to the old gentleman, “This is the man that took your money, isn’t it ? ” and the answer was, “ I guess it is.” Aldrich says the old gentleman first replied, “ I don’t know.” Wilkinson then told plaintiff he was a detective and showed his badge and said he would search him and plaintiff appealed to the conductor for protection who said that Wilkinson was a detective for the road and had more authority than he had and told the latter to go ahead. The detective’s search disclosed no twenty-dollar bill. Wilkinson then said he saw plaintiff take the money, which plaintiff denied, saying he knew nothing of it and had been at luncheon during the time. The detective then demanded the twenty dollars, saying that if it was returned nothing further would be done, and upon plaintiff’s refusal to raise the money from his friends said he would take him from the' train at Fostoria, O., at which place plaintiff again appealed to the conductor, who replied, “ That is all right; Mr. Wilkinson knows his business; he is an officer of this road and the company will stand good for him, anything he does.”
    The plaintiff, together with his musical instruments, including a cornet and banjo, was taken from the train by Wilkinson at Fostoria, O., and, by the latter’s orders, confined in jail, and the next morning Wilkinson testified against him at an examination and he was then sent to Tiffin, O., where he remained for nine days awaiting requisition papers, when proceedings' against him ceased and he, was discharged. Aldrich further testified that, the baggageman on the train had come into the smoker and ' told the detective that the plaintiff had inquired about his baggage at Fort Wayne, and that in Cleveland he (Aldrich) went to see the superintendent at the defendant’s office there and told him what had occurred on the train and a day or so later saw him. again and he said: “ Our detective there seems well satisfied that he has the right man. * * * I do not see what is to be done.” The detective Wilkinson testified that he was a special officer in the employ of the company “ to look after car thieves,” and that when such a thing occurred he investigated it when reported to him ; that he did detective work “ all along the • róad; ” that he did not often arrest persons accused upon trains.; that he never had any specific instructions, but he looked “ after the company’s interest in robberies and burglaries and such as that,” but was not instructed to ride along and make observations, as to whether any theft was committed on trains, although he did that; that after the arrest he reported to the company and that he obtained . a lawyer in the road’s employ at Tiffin, O.
    At the conclusion of this testimony, motion to dismiss the complaint was granted, and from judgment so entered plaintiff appeals.
    
      Louis J. Vorhaus, for. the appellant.
    
      Ira A. Place, for the respondent.
   O’Beiw, J.:

The learned trial judge in dismissing the complaint took the ground that Wilkinson, in charging the plaintiff with the crime, in removing him from the train and in Subsequently placing him under arrest, was not acting within the scope of his employment; and the argument employed in reaching this conclusion, as shown by the oral opinion delivered at the close of the case, proceeded upon the theory that the arrest and imprisonment were not for the purpose of protecting the interests and property of the defendant.

As illustrative of what acts of the employee of a corporation are within and what acts are without the scope of his employment, we have in this State the two cases of Mulligan v. N. Y. & R. B. R. Co. (129 N. Y. 506) and Palmeri v. Manhattan R. Co. (133 id. 261), upon the former of which the trial court mainly relied in dismissing the complaint. We deem it unnecessary to point out the distinction that, in our opinion, exists between the Mulligan case and the one at bar, thinking as we do that the liability of the defendant is to be determined by another and different principle which, upon the complaint and the proof, the plaintiff could invoke. Having as we think made out a prima facie case, he was entitled to have a jury determine whether the damages did or did not result from a breach of the defendant’s general duty as a common carrier to convey him safely and without molestation to his destination. '

In Wood on Master and Servant (2d ed. p. 641) the duty resting upon a common carrier is thus expressed: “ A carrier of passengers for hire — as a railroad company — by the sale of a ticket, or the receipt of the price for transportation from one point to another, expressly contracts to carry such person to the point covered by the contract. In addition to that the law impliedly raises a contract on his part to carry 'such person safely; * * * to treat him respectfully and protect him, so far as due care on his part can do so, from injury from other persons riding by the same conveyance.”

In Stewart v. Brooklyn & Crosstown R. R. Co. (90 N. Y. 588) the court says: “ By the defendant’s contract with the plaintiff, it had undertaken to carry him safely and to treat him respectfully; and while a common carrier does not undertake to insure against injury from every possible danger, he does undertake to protect the passenger against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger.” In Goddard v. Grand Trunk Railway (57 Maine, 202; 2 Am. Rep. 39) it is said that “the carrier’s obligation is to carry his passenger safely and properly arid to treat him ‘respectfully and if he intrusts the performance of this duty to his servants, the law holds him- responsible for the manner in which they execute the trust.” The able . review of authorities which follows in that case supports the conclusion reached that the rule relieving a master from liability for an injury caused by his servant, when not acting within the scope of his employment, does not apply, even though it be maliciously inflicted, as between a common carrier of passengers and a passenger.

In Dwinelle v. N. Y. Cent. & H. R. R. R. Co. (120 N. Y.117), Stewart v. Brooklyn & Crosstown R. R. Co. (supra) and other cases were cited with approval and it was therein said : “ These and numerous other cases hold that no matter what the motive is which incites the servant of the carrier to commit an unlawful or improper act toward the passenger during the existence of the relation of carrier and passenger, the carrier is liable for the act and its natural and legitimate consequences.” (See, also, Wells v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 365.)

In accordance with these authorities and upon the plaintiff’s evidence, it was for the jury to determine whether the act of Wilkin- ■: son in removing the plaintiff from the train and the conductor’s sanction after he was appealed to by the plaintiff for protection against the removal, constituted a violation of the defendant’s contract to carry the plaintiff safely to New York city; and if the jury so found, then it would follow that for the plaintiff’s subsequent, arrest and detention, which was the direct and proximate result of such breach of duty, the defendant would be liable.

Regard being had to the obligation imposed upon the defendant -of conveying the plaintiff safely to the city of New York, it was. bound not.only to protect him so far as practicable while- being socoñveyed'from violence committed by strangers and co-passengers,, but it was bound to protect him absolutely against the misconduct-of its own servants who were employed to perform its obligation or contract of carriage. It, therefore, becomes immaterial whether Wilkinson or the conductor were acting within the scope of their employment, sufficient appearing to render it a question for the jury to determine whether the duty resting upon the defendant was- ‘ properly discharged.. Had Wilkinson been an entire stranger instead. of an employee of the road, and had he with the assent and with the concurrence or by the direction of the conductor removed the plaintiff from the train, the same question would be presented. Where, however, it is not a stranger but an employee of the road, whether he be a detective, or a brakeman, or a fireman, who interferes with the passenger’s right to be carried safely and peaceably on his journey, the additional circumstance that he is an employee of the carrier but accentuates the injury that is done to the passenger.

The extent of the duty to protect a passenger against strangers and co-passengers, as distinguished from servants of the carrier, is clearly expressed in the Stewart Case (supra), as follows: A common carrier is bound so far as practicable, to protect his passengers while being conveyed, from violence committed by strangers and co-passengers and he undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract.”

In our view, therefore, the plaintiff having presented sufficient evidence entitling him to go to the jury upon the question of whether or not the defendant was guilty of a breach of the duty it had assumed of carrying him safely and without wrongful detention to his destination, it was error to dismiss the complaint; and, accordingly, .the judgment and order should be reversed and a new trial ordered, witli costs to the appellant to abide the event.

Ingraham, McLaughlin and Hatch, JJ., concurred; Yan Brunt, P. J., dissented.

Judgment and. order reversed and new trial ordered, with costs to appellant to abide event.  