
    James Murray vs. South Carolina Railroad Company.
    The Railroad Company are not liable to one of their agents for an injury arising from tlio negligence of another competent agent.
    Before O’Neall J., Barnwell, July Extra Term, 1838.
    This was an action on the case, against the defendants, for an injury sustained in their service.
    The plaintiff is a tailor by trade. He resided at Aiken, and applied to Capt. Robertson, the agent of the company, for employment. He declined employing him, on account of his intemperate habits and consequent rashness. He, however, went on to Charleston, and was employed as a second fireman, *on the 18th of May. He selected the engine and engineer to which he was to be attached and under vvliom he was to serve. William E. Perry was the engineer. About the 21th of May, 1831, the plantiff’s second or third trip, as the engine was ascending the road from Charleston, near the Four Hole Swamp, just before entering an excavation, and within about three hundred yards of it, one of the witnesses (Johnson, the first fireman,) said he saw a horse standing near the commencement of the excavation, within ten steps of the road, feeding slowly towards it: he touched the engineer on the back, and asked him if he saw the horse ; he made no reply : the engine ran on : the plaintiff said to the engineer, “ stop we are in danger the engine still proceeded, until within fifty or sixty yards of the horse : this witness said he then put his hand on the “ escape steam valve,” and told the engineer again to stop, for there was danger of running over the horse, and pointed towards him : he, the engineer, theu shut off the steam : by this time the horse stepped upon the road, and there stood : the engine with the steam shut off, ran within six or eight feet of the horse : the engineer gave her all the steam she could carry, to carry her as quick as possible, and with the least danger, over the horse. At this moment, this witness took hold of the awning post, and swung himself outside the engine, for the purpose of jumping off on the left hand side of it: in this position he could see under the engine, which struck and ran over the horse : as it left the road on the right hand side, the witness jumped off on the left. His post was on the left, and the plaintiff’s on the right, of the engine : the break to stop the engine was on the right, and nearer the plaintiff than the witness : when the engineer shut off the steam, the brake was not let down : (he said he was too much agitated by fear to think of the brake :) had it been let down, the engine might have been stopped. As the engine left the road, the plaintiff’s leg dropped between the foot board of the engine and tender, and as these two came violently together, when the engine stopped, his leg was crushed, and his thigh was afterwards amputated midway. This witness gave it as his opinion, very distinctly, that the accident might have been avoided, and resulted from the carelessness of the engineer, in not stopping the engine as soon as cautioned : he thought that as the engine was running only at the rate of ten or twelve miles per *hour, it might have been stopped before they reached the horse. He said it was not the fireman’s duty to let down the brake, unless ordered by the engineer. Meredith, the conducter of the train, said, just as they emerged from an excavation, he saw the horse about fifteen yards from the road, moving from behind some bushes, and running in an oblique direction towards the road, and in the direction the engine was pursuing ; he ran thus about twenty yards, when he leaped upon the road between the rails, just at the entrance of another excavation : as he did so, the engine struck him, and passed over him, and was thrown off the track. The engine was running from sixteen to twenty miles an hour From the time this witness saw the horse, he said that he thought the only way to avoid him was to outrun him. He said, that to stop the engine, it is the duty of the engineer to shut off the steam, and the firemen to let down the “ brake it is, however, the engineer’s duty to order the fireman to let down the brake. Perry was proved to be a skilful professional engineer. The witnesses, Robertson and Ross, concurred in saying, that it was the duty of the engineer to shut off the steam, and the fireman to let down the brake, (and that was the particular duty of the second fireman) whether ordered by the engineer or not to stop the engine and prevent any accident. About three hundred feet is as short a space as within which the engine can be stopped, when running at the average rate of fifteen miles an hour.
    
      The jury were instructed, that the plaintiff's service subjected him to all the ordinary risks and perils of the employment. Each officer of the company, as to strangers and inferiors, was to be considered as the company ; and every command or act given or done by him, must be regarded as given or done by the company themselves. If a superior officer had given an order to an inferior, to do an act not necessary to be done, and not within the duty of the inferior, and in doing it, injury resulted to the inferior, then the company would be responsible. If, in running the road, a superior officer (the engineer) did his duty so carelessly as to subject a servant of the company to unnecessary danger, and which the servant could not avoid, then the company would be liable. But if the peril, from which the injury resulted, was unavoidable, or if the engineer did every thing ordinary prudence* suggested, to avoid it — and, notwithstanding, a servant sustained injury, it would be one of the risks to which his contract of service subjected him, and he could not recover. So, too, if the servant, (the second fireman,) did not do his duty, and to its neglect (as not letting down the brake) the injury might be fairly ascribed, then, in that case, his injury would be attributable to himself, and he could have no redress against the company.
    The facts under these instructions, were submitted to the jury. I thought, and still think, there was very little proof to justify a verdict, but still that little may sustain the verdict, $1500, found by the jury for the plaintiff.
    The defendants appeal, on the annexed grounds.
    GROUNDS OF APPEAL.
    1. Because the plaintiff, being a fireman actually employed on the car to which the accident occurred, cannot recover against the company in whose service he was.
    2. Because the ordinary risks of the occupation of the plaintiff are to be sustained by himself, and the accident was the result of such risks.
    3. Because the plaintiff himself was partly in charge of the car to which the accident occurred, and might have prevented it himself, by the timely discharge of his own duty.
    4. Because the plaintiff, being a tailor by trade, imposed himself upon the company as a fireman, and the accident is attributable to his own negligence and want of skill.
    5. Because it was clearly proved, that there was no want of skill or diligence on the part of the engineer, or other servants of the company.
    6. Because the accident itself was unavoidable, and the verdict is contrary to the evidence in all these particulars.
    Col. Branding's Argument.
    It is of the utmost importance that the principle of the case should be settled correctly; not so much on account of the railroad, as of the public in general. The company can make its contracts with its servants so as to avoid liability, if this verdict should be sustained. But this cannot be so easily done by others who come within the same principle. That principle, as contended for by the plaintiff, I take to be this: *that wherever an individual or company of individuals employ' several persons to effect any operation, the mismanagement of one of those persons, during the operation, by which another of them is injured, will subject the employer to damages at the suit of the injured person. This the defendants deny, and contend that wherever a company (or individual) employs several persons to effect, by a joint effort, any business, each person so employed takes on himself all the risks of the service which do not result from the mismanagement or improper conduct of the company itself, and each servant agrees to take on himself the risk of all injuries to result from the mismanagement or negligence of the other servants of the company engaged in the same undertaking. To illustrate this view of the subject, let me state our views a little more fully. The company are supposed to warrant that the service is not a more dangerous one than it appears to be. Thus they are supposed to warrant that 'Ae road is in ordinary repair; that the engine is a good one, and that "*tlie engineer is competent. And if this is not true, to the knowledge of the company or their chief agent, and the danger is thus greater than the servant had a right to expect, and from that cause he receives an injury, it would seem rational that the company should he liable. But the company cannot be supposed to warrant that each servant of the company shall always be watchful, and that no servant shall he injured by the negligence of another. Now, if this be not the true doctrine, some case can be found where the employer has been made liable at the suit of one servant for the negligence of another, by which he has been injured. These accidents have been numerous. They have for ages been of daily occurrence. The blacksmith, the carpenter, the ship owner, in fact, in every occupation, where a joint effort is required to perform any piece of business, the employer intrusts many to effect it; and every day it happens that some one of them is injured by the negligence of another. Yet no case can be found where it was ever imagined that the employer *was liable for such an injury. And this would seem to put the question to rest. For no reason can be assigned why a railroad company should be subject to a rule which does not apply to every company or individual who engages many about the same business. If no sailor ever recovered against the owners, for an injury occasioned by the negligence of the master, mate, or other sailors ; if one journeyman blacksmith never recovered against his employer for a burn by the carelessness of his co-journeyman; or if no instance can be found where, in all the various avocations of life, the principal has been held liable to any of his agents for an injury by his co-agent, it may be well asked, why a railroad company should be made thus liable.
    
      James Murray vs. The Railroad Company.
    The evidence of William Johnson, witness for plaintiff.
    The witness being sworn, says he was present, and in the employment of the defendants, at the time plaintiff had his leg broken. It was about the last of May, 1837. It happened about thirty-four miles this side of Charleston, near Four Hole Swamp. The witness was the first fireman, and his position was on the engine. The engineer, the plaintiff, and the witness, were on the engine together. They ran on very well till they got to the Four Hole Swamp. When they had got within about three hundred yards of being out of the swamp, the witness saw a horse standing by the side of the road, in the edge of the swamp, and near the commencement of the excavation. As soon as he saw the horse, ho asked the engineer if he saw the horse — the engineer made no answer. They ran on, approaching the horse, and the plaintiff said to the engineer, stop, we are in danger. They ran on a piece further, nearer the horse, within fifty or sixty yards of him, when the witness put his hand to the steam valve, and told the engineer to stop again, for there was danger of running over the horse. The engineer then shut off the steam. By this time, the horse stepped upon the road, and there stood— the engine, with the steam shut off, ran within six or eight feet of the horse. Before, however, the engine got that near the horse, the witness took hold of the awning post, and swung outside of the engine, with one hand on the awning post, and one foot on the foot-board of the engine, in a swinging position, for the purpose of jumping on the left hand side of the engine. The witness could see the front wheels, by looking under. As soon as the engine struck the horse, it knocked him down, his fore legs on one rail and his hind legs on the other. As soon as the hind or driving wheels struck the horse, the engine bounded up, and the witness sprang off on the left side, and the engine ran off on the right side. When the witness jumped off, the engineer was on the right hand side of the engine; the plaintiff was standing between the witness and the engineer, a little back, on the foot board of the tender. As the witness struck the ground, he rolled over and over twice, and got up, and went to see what had happened. The engineer asked him if he was hurt, he said no — and asked if any of them (the engineer and plaintiff) were hurt; the engineer said no — the engineer then turned to plaintiff, and asked him to hand a bucket of water to put out the fire — the witness ran round the head of the engine, and as he got round he heard the plaintiff say his leg was broken. Witness thinks if the engineer had tried to stop the engine, when he (the witness) first showed him the horse, he might have avoided the accident. The witness had seen the engine stopped within a shorter distance. The horse was not running. .7 /Ic witness is decidedly of the opinion that the accident was occasioned by the negligence of the engineer — thinks the engine was not going over ten or twelve miles an hour, and therefore thinks the engine could have been stopped. When the engine got within six or eight feet of the horse, the engineer gave her all the steam she could take. Edward Ferry was the engineer. They had taken in water once at Summerville, in the thirty-four miles — - they had not taken in any wood. It was either half-past eight or half-past nine o’clock. Witness thinks wood ought to have been taken in at the nineteen mile post. It was the practice of the engineers to take in water at the twelve mile post, at Summerville, and at Inabinet’s, thirty-two miles from town, if required. The distance, however, could be run very easily from Summerville to Ross’ Turn Out, three miles above where the accident happened. Witness thinks Perry came out from New York as a professional engineer.
    
      Cross-examined — The witness says he had been about two months in the service of the company as a fireman, when the accident happened, and in company with Perry about two weeks ; it was the second or third trip the plaintiff had made as fireman in the service of the company ; the witness and the plaintiff were receiving a dollar a day as firemen. From the time the witness saw the horse till the accident happened, the engine passed through no excavation; when the witness first saw the horse, he was standing, feeding on the right hand side of the road, about ten steps from it, and moving slowly towards the road; when witness asked the engineer if he saw the horse, he touched him on the back; the engineer turned round, but said nothing; the witness pointed towards the horse ; when the engineer shut off the steam, the brake was not let down; the engineer gave no orders to let down the brake, which ho generally does ; the brake was on the right hand side of the tender, and nearer to plaintiff than to witness ; had the brake been let down when the engineer shut off the steam, the engine might have been stopped. The witness was too much agitated with fear at the time to think of the brake. If the engineer had told the plaintiff to let down the brake, the witness could have heard it. It was not usual with the witness to let down the brake unless ordered by the engineer. When witness first saw plaintiff after the accident, he was standing holding to something ; did not say he was hurt, till he attempted to get the water. His leg was broken between the foot-board of the tender and the foot-board of the engine, by the former running under the latter; is not certain whether they took in water at the station twelve miles from Charleston or not, but does not think they did ; is not certain whether they had wood Sufficient to carry them to Ross’s or not, but is certain they had water enough; the wood was picked, and was nothing but chips and trash. The engine made steam very easily. Thinks the engineer’s intention in giving steam to the engine within six or eight feet of the horse, was to go over the horse quick, in order that the forewlieels might strike the track on the other side. After they saw the horse, witness heard the plaintiff tell the engineer to stop, for they were in danger. The engineer said nothing from the time the witness saw the horse till the accident happened.
    
      In reply — There were men on the road while the witness was there, who commenced as firemen, acting as engineers, viz. : Alfred Weed, Thomas Kingdom, and William Gillespie. About a week before the accident, Perry ran over a cow, which in the opinion of the witness might have been avoided. The business of a fireman is only dangerous when the engineer is not careful, or when unavoidable accidents happen. Coming out of the Four Hole Swamp there had been an excavation, but the dirt had been carried off. lie would not consider it his duty to put down the brake, unless told to do so by the engineer. It was the first time he spoke to the engineer about the horse, he put his hand on his back.
    Sworn to before us :
    A. PATTERSON,
    A. P. ALDRICH.
    
      The testimony of William C. Mekedith, taken by consent, for defendants.
    
    The witness being sworn, says : — That he was the conductor of the train of cars, on or about the 27th May, 1837, when an accident occurred on the railroad, near the Four Hole Swamp. The locomotive and tender were thrown off the road. The accident happened in this way : — after passing through an excavation, the witness saw a horse about fifteen yards from the road, moving from behind some bushes, running in an oblique direction towards the road, and in the direction the cars were going. The horse ran thus about twenty yards, when lie leaped between the rails of the road, just at the commencement of another excavation, and where the rails were even with the ground, or what is call a surface road. As the horse leaped between the rails, the engine caught him, ran over him, and was thrown off the track, as above mentioned. The witness was, at the time, standing on the foot-board of the hindmost car, when he first saw the horse, and until the engine was thrown oif the road — on the same side the engine was thrown off, and on which the horse approached the road, and saw distinctly what he has stated. There were from seven to nine cars in the train, and where the witness stood, was from one hundred and ten to one hundred and fifty feet from where the engine stood, and the train was moving at the rate of from sixteen to twenty miles an hour — the train w'as on ground a little ascending. To check the engine, it is the duty of the engineer to close the valve, and duty of the fireman to let down the brake — the witness was not in a position to see whether this was done, but thinks the valve was not closed till the horse crossed the road. When the witness first saw the horje, he thought the only chance to avoid coming in contact with him, was to out run him, and was of that opinion till the collision took place. The witness does not know whether the brake was down. Mr. W. E. Perry was the engineer, and Wm. Johnson and the plaintiff were firemen. The witness does not know when the engineer first saw the horse. At the time the accident occurred, the plaintiff was standing, either in the tender, or on the foot-board of the engine ; that was his proper place. The plaintiff was not a passenger, he was in the service of the company as a fireman.
    
      Cross-examined. — The witness says, the engineer might have seen the horse sooner than he did. The position of the engineer was a foot, or a little more, higher than that of the witness. The witness thinks, if the engineer had seen the horse one hundred and fifty feet sooner than he did, he might have so retarded the engine, as to have permitted the horse to outrun it. The hollow between the two excavations, is from sixty to one hundred yards wide. The horse might, by leaping both rails, have cj-ossed the road from five to ten yards before entering the excavation. In the deepest part of the hollow, the rails are not more than three feet from the ground ; the distance the engines at that time were instructed to go, was not to exceed fifteen miles an hour, as near as could be made. Thinks it was possible for the engineer to have seen the horse before he got out of the first excavation. The engineer has the control of the firemen. If the engineer wishes to stop the engine, he must tell the fireman to let down the brake. It is easier to stop the engine on an ascent, than on a descent. At the speed the engine was going at that time, and at that place, she could not have been stopped under one hundred yards. She could not have been stopped between the two excavations, but she might have been so retarded, that the horse might have avoided it. The valve was not closed till the horse crossed the rail. Perry was said to be a professional engineer ; he ran very well to the place the accident happened. The witness did say that he would not go on the train when Perry was the engineer; the witness said this, because he thought Perry ran faster than he ought to do, over certain parts of the road ; did not think he had been long enough on the road to be safe. He appeared to be cautious enough ; heard of his having run over a cow. Mr. Perry took in wood twice between Charleston and the place where the accident happened ; the distance is about thirty-four miles. It is not usual to take in wood and water at each station. The witness cannot attach blame to any person for the accident, from the facts coming within his knowledge. If Perry saw the horse time enough to stop, he was to blame ; but whether he did see the horse in time, the witness cannot say. The engine was good — first rate.
    
      In Reply. — The witness acted as a conductor twenty-one or twenty-two months. If an engineer is attentive to his duty, he has not much time to look around, or notice objects on either side of the road. It is his duty to notice the road ahead, and the machinery.
    The witness thinks there was wood enough aboard to carry the train to the next station. As to water he cannot say, as he knows nothing, as the water pipes were broken off.
    Sworn to before us : A. PATTERSON,
    A. P. ALDRICH.
    
      The principle, as applicable to these cases, where one man or a company is to be made liable for the act of another person, is this : that no one shall be liable for another’s act, except he has commanded it, or “has agreed to be so liable ; or where such liability has been imposed on him by law, from principles of policy, or for the public security.” *Now, it will hardly be supposed that in this case the company can be charged with an express or implied command to break the plaintiff’s leg, or that the company ever agreed to bo liable for the act. If they are liable at all, it must be on principles of policy, or for the public security.
    Now, let us see how far the public security would be promoted by making the company liable to all its servants for injuries they may sustain by the negligence of their co-servants. The public security requires that every possible motivo should be held out to every person engaged in running a train of cars, to use the utmost care ; that each should see that every other person engaged in the service does so ; that every other person is competent to liis post, and that the road, engine and cars are in safe order. Whatever principle is best calculated to secure to the public all this, is that which tlxe Court should adopt. If this will be best promoted by making each person engaged in running the train risk all inj uries he may receive, without resort to his employer, then lie should be excluded *from such resort. If want of such resort would make him more careful himself, make him urge others acting with him to more care, would induce hirn never to act but with those whom he knows to be competent, prudent, and careful, it is believed that the public would And security in it. Now, it is very' certain that where he is denied all recourse, he will risk less than where he expects a pension for life, or a sum in gross, for any injury ho may receive in the service.
    This view of the case, it appears to me, is sufficient to establish the rule, that every person who enters into the service of a railroad company takes upon himself the risk of all injuries he may sustain from the ignorance of the servants of the company who are engaged in conducting the train of cars, and that the security of the public requires the adoption of this principle.
    If, in ordinary joint efforts, when only the interest of the company is concerned, no case can be found where it has been decided that the principal shall be liable to one of his *servants for the negligence of another, how much stronger is the reason for adopting the same rule in this case, where the safety and life of passengers are promoted and secured by it, and where a different rule would greatly diminish that security.
    Let us compare the case of the injury sustained by a servant of the company, from the negligence of its agents in concert with him, with the case of injuries received from similar negligence by strangers, passengers, or freighters.
    The liability of the company for the loss or damage to goods it takes to carry, is founded on principles of public policy. As common carriers, the company is liable for all losses, except from the act of God, or the enemies of the country, even when there is no negligence, and the principle in that case has no analogy to the one before us.
    In case of injury to passengers, the rule is different, and the company is liable for all injuries to them which arise from any negligent act of the agents of it. The difference in that *case from ours is most striking. The passenger pays the company for carrying him. The agent or servant is paid by the company. The passenger has nothing to do in running the train, and if he should interfere, he would not only lose his claim on the company, but might be made liable to it in case an injury should happen. The agent or servant is bound to act, and act faithfully, and to see that others engaged with him do so ; or at least is bound to inform his employers, if he sees negligence in others. The passenger can know nothing of the condition of the road, or works, or machinery, and lias to trust for his security to liis right to recover damages if he is injured. He has no information as to the competency, skill, or prudence of those who drive the train. But, on all these matters, the agents or servants of the company may be informed before they enter the service. With such a difference of information, and condition, it would be extraordinary if the same principle should apply to both. If the company, then, are liable to the passengers only for the misconduct or negligence* of its agents, what is the extent of its liability to its servants for injuries sustained in conducting the train? Not for such as result from negligence or misconduct of those with whom they act, but simply, as I have before stated, for such injuries as they sustain from being placed in a more dangerous service than that on which they agreed to enter. If the servant has been deceived by the company as to the nature of the service, and is injured, the company would be liable. As to the competency or care of those with whom he acts, ho has the same means of information that the company possesses, and oftentimes much greater; and when the persons who are to conduct the train enter on the service, policy requires that they should be sureties for each other ; so far, at least, as to exempt the company from any responsibility for injuries which one may receive from the carelessness of another. The rule as to sailors goes further than this. The owners of the ship are not liable to the sailors for injuries they may receive in the service, howsoever they may happen ; but if the ship is lost, they forfeit their wages, nor can they recover them but on full proof that the loss was occasioned by the negligence of the master. To save this forfeiture, they may prove negligence in the agent of the owners, but there has never been a case in which it has been permitted to show such negligence to charge the owners with any injury the sailors may have received from it.
    But it may be said that the rule which applies where a stranger is injured by the agent by a negligent performance of his service, should be adopted. Here, the rule is, that a wilful act by the servant, by which a stranger is injured, will not charge the master or employer. The act must be done strictly in performance of the service of the principal, or he is not liable, for he cannot be presumed to have ordered any other. And the rule is carried very far, where the principal is presumed to have ordered his negligent acts. But the rule is not, perhaps, founded on such presumption, but on the principle that the public security requires that the employer, having engaged the agent, and placed him in a situation where his negligence may cause injury to others, shall respond to the person injured, and not leave him for redress to one who is wholly irresponsible. It can be sustained on no other principle. Now, how far does this rule apply to our case ? The co-servant* who may be injured is employed to act with the person from whose negligence the injury has arisen. He chooses his situation, and with whom he is to act. They are all employed in a common cause, and must share the common risk. They must look to each other for protection and safety, and be thence induced to stimulate each other to care and diligence, and prevent, by the efforts of ono, the consequences of the negligence of another. On this the public security depends, and it would be greatly endangered were a different principle adopted.
    Lot us consider the case in one other respect. When an injury of this kind has happened, there will always be a conflict of testimony as to the nature of the act that occasioned it. Was it the result of a mere mistake of judgment, of sheer neglect, or of wilful mismanagement; or, by whom was it caused, and the share of participation each had in it? The agents of the company are the witnesses, and in such a conflict there is great danger that every accident, even when occasioned by the party injured, will bo visited on the company. In this case, the evidence is as strong that the negligence of the plaintiff, in not putting down the brake, was the cause of the accident, as that it was owing to the negligence of the conductor of the train. On principles of policy, this investigation should never be allowed, where an injury has been sustained by one who is bound in common with others to prevent the accident by which it was occasioned. And this can be done only by this Court declaring that every person who engages to unite in conducting a train of cars, takes upon himself the risk of all injuries which may result from the negligence or misconduct of those with whom he is united in that service.
    If ti^is view of the case be correct, the inquiry is ended, and the Court may grant a new trial or a nonsuit, for the right of the plaintiff to recover is defeated on liis own showing.
    But if I have mistaken the principle, and among the risks against which the company warrant, is, that no person engaged in conducting a train shall be injured by the negligence of another in the same service ; yet, the testimony will not support the verdict. The whole occurrence took place in less than ten seconds. What was the most proper course to be pursued in such an emergency, was one of doubt and uncertainty, on which an immediate decision was to be made. The conductor *of the train decided, and the injury happened. Now, if the Court, on reviewing the testimony, cannot discover that there was sufficient evidence to warrant the jury in saying that the conductor decided wrong, not merely as a mistake of judgment, but from a negligent disregard to his duly, a new trial must be granted. For without such evidence, on no principle can the company be made liable.
   Curia, per

Evans, J.

In the consideration of the question involved in tins case, I shall assume that the verdict establishes the fact that the plaintiff’s injury was the effect of the negligence of the engineer, and then the question arises whether the railroad company is liable to one servant for an injury arising from the negligence of another servant. The business of the company is the transportation of goods and passengers. Its liability in these respects, is, in general, well defined and understood by the profession ; and if the plaintiff’s case came within any of the principles applicable to these cases, we should have no difficulty in deciding it. The application of steam power to transportation on railroads, is of recent origin, but the principle by which the liability of a carrier is fixed and ascertained, is as old as the law itself. There is nothing in the fact, that the defendant is a corporation, except that of necessity it must act altogether by agents. The liability is precisely the same as if the defendant was an individual acting by the agency of others. The principle is the same, whether you apply it to a railroad, a steamboat, a wagon, a stage coach, or a ship. If this plaintiff' is entitled to recover, I can see no reason why the owner of any of the above modes of conveyance, should not be liable under the same circumstances. If the owner of a wagon should employ two men, one to drive and the other to load, and either of them should so negligently perform his work as to injure the other, the owner of the wagon would be liable. The principle will extend to nil the vocations of life wherein more than one person is employed to effect a single object; and a new class of liabilities would arise, which I do not think has ever heretofore been supposed to exist. It is admitted, no case like the present has been found, nor is there any precedent suited to the plaintiff’s case, unless he stands in the relation of a passenger to the company. In this point of view, his counsel has chosen to regard him, for I *understand the declaration alleges ho was a passenger. Now, a passenger is every where spoken of as one who pays for transportation. In all the operations necessary for this, he is passive. The moment he becomes an operator, for then his character is changed, he becomes the servant of the company, and not its passenger. It would be a confusion of terms so to regard him. He is no more a passenger than a sailor or a stage driver. There is nothing in the definition of bailment, or the classification of the different kinds of liability growing out of that relation, which applies to the plaintiff's case, and if he is entitled to recover, it must be on principles which apply equally to all operations of life in which agents are employed. There is no question that, in general, the principal is liable for the acts of the agent, performed in the execution of his agency, or in and about the business of his principal. Thus, the owners of a railroad would be liable to passengers for an injury sustained by the negligence of any of its servants, superior or subordinate, because it is implied in the undertaking to carry, not only that the road and cars are good, but that the servants employed are competent and will perform their duty. For the loss of goods, the law annexes a still greater responsibility. So, also, if one employ an agent to execute any work whereby an injury may result to a stranger, the law requires it to be done with care, and if a stranger sustain an injury, his principal is liable, as was decided in O’Connell vs. Strong, (Dud. Rep. 265.) But the plaintiff is neither a passenger nor a stranger, and if he can recover, it must be in his hermaphrodite character as a passenger fireman. In the cases above enumerated, the principal is represented by the agent, and unless he his liable, the great operations of life cannot be carried on — no man would have adequate security for his person or his property. The owner of goods would not trust them on a railroad, or a steamboat, if his only security was the liability of the mere servants employed. No passenger would commit his safety to a railroad, steamboat, or stage coach, if, in case of injury, he could look to none but the agents usually employed about these modes of transportation. So, also, no man would have any guarantee for the security of his property, if his only remedy for negligence was the irresponsible or insolvent agents which another might employ. In all these, and similar cases, the reasons of the liability of the *principal are clear, and the law books are full of cases or precedents which apply to them ; but it is not so with the plaintiff’s case; there is neither authority nor precedent for it.

It was said, in the argument, that if the engineer had been the owner of the road, he would have been liable. Of this I apprehend there would have been no doubt, but then his liability would have arisen, not from his being the owner, but because the injury arose from his own act. That he is now liable, seems to me to admit of no doubt. But it by no means follows as a consequence, that because he is liable, those who employ him are liable also. One acting as agent may subject himself to liability in a variety of cases, for which his principal would not be liable ; and this may be as well in cases of contract as in cases of tort. The extent of the liability of the principal, for the acts of the agent, can, in general, be readily ascertained from the object of the contract, and the relative position of the parties. A passenger desires to be transported from one place to another; the carrier undertakes to do this, and is liable if he fails. It is wholly immaterial by whose default the injury resulted. There has been a breach of the contract, and he has a right to look to him with whom his contract was made. With the plaintiff, the defendants contracted to pay hire for his services. Is it incident to this contract that the company should guarantee him against the negligence of his co-servants ? It is admitted he takes upon himself the ordinary risks of his vocation; why not the extraordinary ones? Neither are within his contract — and I can see no reason for adding this to the already known and acknowledged liability of a carrier, without a single case or precedent to sustain it. The engineer no more represents the company than the plaintiff. Each in his several department represents his principal. The regular movement of the train of cars to its destination, is the result of the ordinary performance, by each, of his several duties. If the fireman neglects his part, the engine stands still for want of steam; if the engineer neglects his, everything runs to riot and disaster. It seems to me, it is, on the part of the several agents, a joint undertaking, where eacli one stipulates for the performance of his several part. They are not liable to the company for the conduct of each other, nor is the company liable to one for the misconduct of another; and, as a general rule, I would *say, that where there was no fault in the owner, he would be liable only for wages to his servants; and so far has this doctrine been carried, that in the case of seamen, even wages are forfeited if the vessel be lost, and no freight earned.

In the above observations, I have endeavored to confine myself strictly to the case before the Court. It is not intended to pre-judge other questions, which may arise between the company and its servants; nor do I mean to say, that a case may not occur where the owner, whether an individual or company, will be liable for the acts of one agent to another; but then it must be in such cases as where the owner employs unfit and improper persons as agents, by whose ignorance or folly another is injured. Upon such a case it will be time enough to express an opinion when it arises. The present is not such a ease. The engineer, according to the evidence was competent, though he may have been rash in the particular instance in which the plaintiff’s injury was sustained. He was known to the plaintiff as well as to the company, for it appears by the report that he selected the engineer under whom he was willing or prepared to serve. It seems to me the plaintiff is not, therefore, entitled to retain his verdict, and a motion for a new trial is granted.

Richaudson, EaRLE, Butlee, Harper, Dunkin, JJ. and CG., concurred.

Johnson, Chancellor.

I concur in this opinion, and will only add a word in illustration of iny own views of the question.

The foundation of all legal liability, is the omission to do some act which the law commands, the commission of some act which the law prohibits, or the violation of some contract by which the party is injured. There is no law regulating the relative duties of the owners of a steam car, and the persons employed by them to conduct it. The liability, if any attaches, must therefore arise out of contract. What was the contract between these parties ? The plaintiff, in consideration that the defendants would pay him so much money, undertook to perform the service of fireman on the train. This is all that is expressed. Is there anything more implied ? Assuming that the injury done, was in conse-quenco of the negligence of the engineer, the defendants would not be liable, ^unless they undertook to answer for his diligence and skill. Is that implied ? I think not, The law never implies an obligation in relation to a matter about which the parties are or may, with proper diligence, be equally informed. No one will ever be presumed to undertake for that which a common observer would at once know was not true. The common case of the warranty of the soundness of a horse, notoriously blind, may be put in illustration. The warranty does not extend to the goodness of the eyes, because the purchaser knew or might have known, with proper care, that they were defective.

Now the plaintiff knew that lie was not to conduct the train alone. He knew that he was to be placed under the control of the engineer. He knew that the employment in which he was engaged was perilous, and and that its success was dependent on the common efforts of all the hands ; and, with proper diligence and prudence, he might have been as well, and it does not follow that he might not have been better, informed than the defendants, about the fitness and security of all the appointments connected with the train. If he was not, it was his own want of prudence, for which defendants are not responsible. If he was he will be presumed to have undertaken to meet all the perils incident to the employment.

There is not the least analogy between this case and that of common carriers of goods or transporters of persons. They arc liable in respect to the price paid. Not so here. The plaintiff paid nothing for liis transportation ; on the contrary, he was to be paid for his labor, and for the perils to which he was exposed, as incident to his employment. No prudent man would engage in any perilous employment, unless seduced by greater wages than he could cam in a pursuit unattended by any unusual danger.

O’Neall, J.,

dissenting. This case was tried by myself, and although, had I been on the jury, I should have found for the defendants, yet there were certainly facts in the evidence, which might have led another to a different conclusion ; and, therefore, I am not disposed to disturb the verdict. This makes it necessary to consider the legal doctrine which I laid down to the jury.

In substance, I held, that if the injury to the plaintiff resulted* from the negligence of the engineer, then the plaintiff was entitled to recover. This doctrine, a large majority of my brethren think erroneous, and however much deference is due to their opinions, yet, as I consider them to be wrong, I think it my duty to state my own views.

This case is one of the first arising out of the conveyance of human beings by locomotives on railroads. It goes beyond the ordinary case of a passenger, and presents a claim on the part of a hired servant, against his employers, for an injury sustained in their service. If it arose out of any of the old-fashioned modes of conveyance, managed by the defendants themselves, could there be a doubt that they would be liable, if the injury resulted from negligence ? Take the case of a stage coach, driven by the owner, and let it be supposed that the plaintiff was hired as a guard, and that he was injured in that employment, by the careless driving of the defendant, who would hesitate to say that he was entitled to recover ? No one who had a proper regard to legal principles.

Is there any distinction in law as to the effect which the employment of the plaintiff is to have, in the different kinds of service in which he may engage ? I think there is none. If Mr. Tupper, the able and efficient officer of the company, had, in person, managed the engine, and the plaintiff had been injured by his carelessness, I would most respectfully ask, how could it be pretended that the company was not liable ?

I admit here, once and for all, that the plaintiff, like any other servant, took, as consequence of his contract, the usual and ordinary risks of his employment. What is meant by this ? No more than that he could not claim for an injury, against which the ordinary prudence of his employers, their agents or himself, could provide. Whenever negligence is made out as the cause of injury, it does not result from the ordinary risks of employment.

How far are the defendants liable for the acts of the engineer ? In the language used in Bacon’s Abridgment, Tit. Master and Servant, letter R , “it is highly reasonable that they should answer for such substitute, at least civililer; and that his acts, being pursuant to the authority given him, should be deemed the acts of the master.” Now, to this authority, it will not do to say the defendants did not authorize the engineer *to run his engine so carelessly as to injure the plaintiff. They put him in command of it, and authorized him with it to run the road. If, in the doing of this act, which is according to their authority, he acts negligently, then they are liable for the consequences, for they result from the doing of their business, by one then employed by them. The cases of Drayton ads. Moore, and Parker & Co. vs. Gordon, (Dudley’s Rep. 268,) and of O'Connell vs. Strong, (Ib. 265,) are full to this point. In ordinary cases, this would not be questioned. But it is supposed that this case is not governed by the ordinary rules applicable to cases of liability, arising out of the relation of master and servant. I am at a loss to conceive any just reason for this motion. The law, it seems to me, is to be regarded as a general science, applicable to every case coming within the letter or the reason of the rule. Where it is within neither, it becomes an exception to it. It is only necessary to state this case, to see that it is within both the letter and reason of the rule; for the defendants employ the plaintiff to act under the command of another of their servants. In such a case, the servant in command, is in the place of the employers. When they hire another to engage in a service, where neither his own care nor prudence can shield him from injury, which may arise from the act of another of their agents, having the control of him, the question of their liability depends upon the care used by such superior agent. The ordinary rule in cases of hiring goods, is, that the hirer should use that degree of care which a prudent man would take of his own goods. If this degree of care is shown, then the hirer is not liable for any injury which may result to the goods hired. This rule, it seems to me, must, necessarily, be that which applies to this case. Is more favor to be bestowed on a man’s goods than on his person ? It would be strange that this should be so. It may be tested, however, by inquiring if the plaintiff, instead of himself, had hired his negro man to the defendants as second fireman, and he had lost his leg by the care-lessncss of the engineer, would not the defendants have been liable ? It seems to me that they would, or one section of the law of bailments would be repealed by the Court of Errors. There can be no difference in the law, as applicable to the white mail or the slave, in a contract of hiring. Both are capable of self-preservation, and both are ^capable of wrong and right action ; and in the capacity of firemen, both are under the orders of the engineer, and must look to him for safety.

In the cases of Drayton ads. Moore, and Parker & Co. vs. Gordon, (Dud. Rep. 272,) it was said, “ when a master employs slaves in any public employment or trust, such as tradesmen, ferrymen, wagoners, patroons of boats, or masters of vessels in the coasting or river navigation, he undertakes, not only for their skill, and faithfulness to all who may employ them, but also, for their general skill and faithfulness to the 'whole community.” This rule stated as to slaves, applies more forcibly to hired servants, and my brother Johnson, who then resisted the rule as to slaves, admitted it in its fullest extent as to hired servants. Taking this as settled law, how stood the plaintiff in his contract with the defendants in relation to the engineer ? Had he not the right, according to law% to regard the defendants as contracting both for skilfulness and faithfulness? It seems to me, there can be no doubt about it. Well, this being so, if the engineer was negligent, the defendants’ undertaking for his faithfulness was broken, and they are most clearly liable.

It is, however, urged (and that is, as I understand, the ground on which the Court of Errors decides the case) that this case is one of novel impression, and not to be decided by the ordinary rules of the law of bailment. Conveyance by locomotives on railways is supposed to be more analogous to shipping than any thing else; and hence, unless a sailor could recover for an injury arising from the neglect of a master, it is supposed that a fireman cannot, for an injury arising from the neglect of the engineer. Before I discuss the case in this new aspect, I deny that any mode of conveyance on land is to be put on a footing with the navigation of the ocean in ships. That is governed by the principles of law coeval with society, and in many respects common to every civilized nation of the earth. Conveyances on land are also regulated by a very ancient and well-settled law wholly distinct from the other. It will, however, be sufficient to show by one plain view, that the law applicable to mariners cannot affect this case. Unless a vessel earns freight, the mariner is entitled to no wages. Suppose a locomotive running from Charleston to Aiken should burn up the entire train, and thus earn no *would not all the hands hired by the defendants to manage her, be entitled to their wages ? There could be no more doubt that they would, than that a man hired to drive my wagon to Charleston, who, by some unforeseen accident should lose his load, would still be entitled to his wages. This shows that in the very beginning there is such a difference in the law of a ship and that of a locomotive, that it is impossible the law of the former can decide the right of a servant employed in the latter, to recover for an injury arising from the neglect of the engineer.

But if it were otherwise, and this case depended upon maritime law, still I am inclined to think the plaintiff ought to recover. Ho exactly analogous case can be found. In Phillips on Ins. 463, Judge Story is represented as 'saying, in the case of the Saratoga, “It appears to me, that upon the established doctrine of our law, where the freight is lost by inevitable accident, the seamen cannot recover wages, as such, from the ship owner.” I concede that this dictum is the true law regulating a mariner’s right to wages. If the freight was lost by the master’s neglect, it could not then be ascribed to inevitable accident; and then, I think, the seaman would be entitled to recover If this is true in relation to wages, the same rule must hold as to the mariner’s right to recover for any injury arising from the negligence of the master.

But, it is said, it would be impolitic to make the defendants liable for any injury accruing to a fireman, from the neglect of the engineer. This would be worth inquiring into with great care in the Legislature; but, in a Court, I think we have nothing to do with the policy of a case; the law of it is our guide. But if we are to look to the policy, then I should avgue that the more liability imposed on the railroad company, the more care and prudence would be thereby elicited. This result is what the community desires. For it secures life and property, committed to their care.

I think the motion ought to be dismissed.

Gantt, J., concurred.

J. JonNSTON, Ch.,

also dissenting. It may not diminish the force of the observations made by Mr. Justice O’Neall, if I *state very briefly the reasons which induce me to concur in his dissent.

It is admitted that the duties and liabilities between masters and hired servants, result only from the nature and terms of the contract which forms the relation; and that neither party is allowed to extend or abridge the contract. That the master cannot exact other services than those stipulated for; nor, by any indirection, subject the servant to any other than the ordinary perils incident to the employment; and that if he does, by any agency whatever, or by any means, whether of design or negligence, accumulate upon the servant, while in the performance of his duty, any dangers beyond these inherent in the service itself, they fall upon the latter, not as a servant, (for his contract does not bind him to endure them,) but as a man, and the law entitles him to redress.

It is also admitted that these principles are not confined to cases where one servant only is employed, but prevail when a plurality are at the same time engaged by the same master. Their application, however, in cases of the latter description, depends upon the terms of the contract. If several jointly contract to perform a specified duty, the master is not liable to either of them for injuries resulting from the faithlessness or negligence of his coadjutor; all of them being, substantially, agents for each other, to perform their joint undertaking. But when their engagements are several, each undertaking for himself, to perform distinct offices, in a matter susceptible of a division of labor, each stands to the master in the same relation, and is entitled to the same rights, as if he was the only servant employed. The master is responsible to him, as he would be to a stranger, for the misconduct of the others, who are exclusively his, the master’s, agents.

Now, this is admitted to be the general law upon the subject; and it is applicable to the servants of a railroad company, as well as to those of any other employer, unless there be something to take them out of its operation.

No instance of master and servant has been pointed out where these principles do not obtain, except the case of a ship’s crew; but that stands clearly upon special grounds of usage.

If the servants employed about a railroad, are excepted out of the general rides relating to agency, the exception, with the '-•'grounds and reasons of it, must be shown, otherwise the employers will be as liable to any one engaged in their service, for injuries inflicted on him by other agents, in the course of their employment, as a planter would be to a hired hand for maltreatment by his overseer.

I presume no one will contend that the rule applicable to service in a railroad company, is, that the company is not liable to any agent, for any injury, provided the company can only show that another of its agents has inflicted it. Would it do to say, for example — and upon what principle could it be said — that a superintendent of the hands engaged in repairing the road, may, with impunity to the company, abuse his authority, to the injury of their health ? Or, if the cars were to be run at night, and, through the neglect of hands set apart to watch the road, and remove obstructions, the whole train were lost, and any officer or hand on board were crippled, certainly no one moans to assert that none of these could claim compensation from the company, but must look exclusively to the irresponsible agents (perhaps slaves,) hired by the company, through whom the injury accrued ? And yet, how is the rule to be laid down — -I wish to hear the rule stated — which would include that case and exclude this. The fidelity of the hands detailed to superintend the road, in the case I have supposed, would be as essential to the common enterprise of running the cars, as the fidelity of the hands on board to their respective duties. If the idea is indulged, that there is, in any branch of this enterprise, an implied undertaking among the servants to do the work jointly, and to waive the neglect of each other, what will constitute such an understanding ? Where are its limits ? Does it arise from the intimate connection of the hands ? Then, I wish to be informed what degree of intimacy, what strength of association, is demanded, to raise the implication ? Where is the line ?

I give no opinion upon the evidence. I take the verdict for the facts ; and, according to the finding of the jury, the plaintiff faithfully performed his particular duty, and, while performing it, was injured by the faithlessness or negligence with which the company, acting in the person of another agent, executed a duty incumbent upon them. Ought the plaintiff’s remedy to be doubtful ?

*The elements of the contract between him and the defendants, are these : on their part, so far as they were to contribute to the propelling of the cars, that they would carry him safely ; and, on his part, that on the trip he would perform certain offices. With respect to the last, he was their servant; with regard to the first, he was their passenger; and as their passenger, they have crippled him. The distinction is plain, and the propriety of applying it would be as plain, if instead of being stationed where he was, he had only been a clerk, hired by the company to travel up and down in the cars, and take a minute of their operations. Yet, on principle, no discrimination can be drawn against him on account of his being a fireman, and not travelling clerk; because he had ns little connection with, or control over, the department from which his injury sprang, or the agent to whom it was exclusively committed by the defendants, as if he had been assigned any imaginable duty in the remotest part of the train.

Note. — This case was argued before the present incumbent was elected to the office of State llejiorter, which will account for the want of the usual notes of the argument of counsel. He has been furnished by his Honor, Judge Richardson, with the argument of Col. Standing, submitted by him, in his life time, to the Appeal Court, which he has published with the case. The Reporter regrets, exceedingly, that he has not been furnished with the eloquent arguments (as lie has been informed they were,) of the different counsel who were engaged in this case.

See 9 Rich., 93, 468; 4 Rich., 426; 5 Rich., 15; 1 Strob., 525, and other cases concerning passenger carriers. An.  