Mr. Justice Harlan,
after -stating the case- as above reported,-delivered the opinion of the court..
We will not extend this opinion by a recital.of all the facts and circumstances established by the proof. It is sufficient to say that there was evidence tending to sustain both the allegations of the complaint and the averments in the answer. In view of the serious conflict in the statements of witnesses, the case'was one peculiarly for the determination of a jury, under appropriate instructions as to the law. The court, therefore, rightfully refused to direct a verdict for the company, unless, as claimed, the plaintiff, according to his complaint and the evidence, had no cause of action.
It appears from the complaint that the company'had á reg:' ulation restricting deck passengers to a particular part, of thé boat; but of the existence of that rule, the plaintiff averred,' he did not, at the time, have notice. It also .appears by uricontradicted evidence that, upon the ticket purchased by the plaintiff, were printed the words " deck passengers not allowed abaft the shaft," and that placards, in different parts of the' boat, indicated the place.on it which such passengers were prohibited from occupying. As the plaintiff was "abaft the shaft " when injured, no case, it is insisted, was made that would sustain an action upon the contract of transportation; consequently, it is contended, the request to instruct the jury to find for the defendant should have been granted. This argument assumes that the plaintiff could not claim protection under the contract for safe transportation in respect to an injury done him by the company's servants while he was upon a part of the boat other than that to which he was restricted by the rule or regulation printed on his ticket. This position cannot be sustained. We shall not stop to inquire whether the regulation in question is shown to be a part of the contract for transportation; and we assume, for the purposes of this case, that the plaintiff stipulated that, during the voyage, he would remain upon the part of the boat to which deck passengers were assigned; still,- it would not follow that his violation of that stipulation deprived him of the benefit of his contract. Such violation • only gave the carrier the right to compel him to conform to its regulation, or, upon his refusing to do so, to require him to leave the boat, using, in either ease, only such force as the circumstances reasonably justified. If the injuries necessarily arose from his violation of the regulation established for deck .passengers, the carrier would not be responsible therefor. But if they were not the .necessary result of his being, at the time, on a part of the boat where he had no right to be, and were directly caused by the improper conduct of the carrier's servants, either while acting within the scope of their general employment, or when in the discharge of special duties imposed upon them, he is not precluded from claiming the benefit of thecontract for safe transportation.
The plaintiff was entitled, in virtue of that contract, to protection against the misconduct or negligence of the carrier's servants. Their misconduct or negligence whilst transacting the company's business, and when acting within; the general scope :of their employment, is, of necessity to. be imputed to the corporation, which constituted them agents for the performance of its contract with the passenger. "Whether the act of the servant be one of omission or commission, whether negligent or fraudulent, "if," as was adjudged in Philadelphia & Reading Railroad v. Derby, 14 How. 468, 486, "it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize or even know of the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant's employment." See also Philadelphia, Wilmington & Baltimore Railroad v. Quigley, 21 How. 202, 210. " This rule,", the Court of Appeals of New York well says, "is founded upon public policy and convenience. Every person is bound to use due care in the conduct of his business. If the business- is committed to an agent or servant, the obligation is not changed." Higgins v. Watervliet Turnpike Co., 46 N. Y. 23, 27. The principle is peculiarly applicable as between carriers and passengers; for, as héld by the same court in Stewart v. Brooklyn & Crosstown Railroad, 90 N. Y. 588, 591, a common carrier is bound; as far as practicable, to protect its passengers, while being conveyed, from violence committed by strangers and co-passengers, and undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract.
"What -will be misconduct on the part of its servants towards a passenger cannot be defined by a general rule applicable to every case, but must depend upon the particular circumstances in which they are required to act. In the enforcement of reasonable regulations established by the carrier for the conduct o"f its business, the servant may be obliged to use force. But the law will not protect the carrier if the servant uses excessive or unnecessary force. This doctrine is well illustrated in Sanford v. Eighth Avenue Railroad, 23 N. Y. 343, 345. In that case it appeared that the plaintiff's intestate got upon a street railroad car in the night time, and, after being shown to a seat, refused, without sufficient cause, to pay his fare. He was ordered to leave the car, and, failing to do so, the conductor led him to the forward platform, and, without stopping the car, forcibly ejected him therefrom. The injuries received by the passenger resulted in his death. The court said: " It must be conceded that the conductor had a right to expel the intestate for the reason that he would not pay his fare when asked to do so. But this was not a right to be exercised in a manner regardless of all consequences. A person cannot be thrown from sc railroad train in rapid motion without the most imminent danger to life; and, although he may be justly liable to expulsion, he may lawfully resist an attempt to expel him in such a case. As the refusal of a passenger to pay his fare will not justify homicide, so it fails to justify any act which in itself puts human. life in. peril; and the passenger has the same right to repel an attempt to eject him, when such attempt will endanger him, that , he has to resist a direct attempt to .take his life. The great Jaw of self-preservation so plainly establishes this conclusion that no further argument is necessary. . . . It is said that the intestate offered resistance wheri he was thus seized. But this he had a right to do in order to save life, Avhich he had not forfeited by refusing to pay the fare. He was liable, as we said, .to be expelled, and the conductor's-iassault would have been, justified if the car had been stopped, and the expulsion had been made without unnecessary violence. But, as- the conductor had no right to make the assault, when, he did and as he did, so the law will justify such resistance as was offered .to that assault." See also Hoffman v. New York Central & Hudson River Railroad, 87 N. Y. 25; Rounds v. Delaware, &c., Railroad, 64 N. Y. 129, 134; Lynch v. Metropolitan Railway, 90 N. Y. 77; Ramsden v. Boston & Albany Railroad, 104 Mass. 117, 121; Noble v. Cunningham, 74 Ill. 51, 53; Northwestern Railroad v. Hack, 66 Ill. 242; Robinson v. Webb, 11 Bush, 464, 482.
In the present case the jury were instructed, in substance, that the. plaintiff had no right to be in any part of the boat except that' assigned to deck passengers, and that'the carrier's servants had the right — using no more force than was necessary- — to remove him from the place where he was found by the watchman. Referring to the testimony of the plaintiff, the court observed: "He says that he went upon the bales of hops, remained there a short time, went to sleep, and was awakened by the watchman, Thiel, striking him with a cane; that -he struck him first on the feet, afterwards in the face, and told him to get down. He asked Thiel if he was doing any harm there, and asked to be allowed to stay. Part of the answer was, £ Get down, come down.' The assault upon him continuing, he then put up his satchel for protection, and was thereupon caught by the collar of his coat and pulled headlong from the freight, his shoulder striking one of the barrels standing near, dislocating it or causing the injury which bas been described. He says that upon regaining his feet he was again struck by the watchman. Soon after another officer of the boat came and he was pushed towards the shaft and told that was- the part of the boat for him to remain in; that he went to the barber shop, and there for the first time read his ticket and saw the requirement in reference to deck passengers. That very briefly is the statement of the plaintiff." The court proceeded: "If you believe that statement to be true, then I say, as a matter of law, that there was more force than was necessary to accomplish the result, , and the plain tiff is entitled to a verdict." To this last part of the charge the defendant took an exception. But we perceive no ground upon which the exception can properly rest. If the statements of the plaintiff were true, then neither argument nor citation of authorities is necessary to show that undue force was used by the company's servants. And it was the right of the court to so instruct the jury.
. But that the jury might, also, have in mind the case as made by the defendant, the court said: " On the other hand, you have the testimony of the witness Thiel, who says he came to the freight two or three times before the transaction and told plaintiff to get down; that the other passengers all got down; that on the third occasion he stepped on a box and told him to come down; that the plaintiff, instead of doing so, endeavored to climb higher or get away from him; that the plaintiff- Mcked him in the breast, and in the excitement he. caught hold of him, and in the struggle which ensued, the boxes, the plaintiff, and the witness came down together in a crash upon the floor. If you believe that statement, then the plaintiff brought this assault upon himself; it was an unavoidable accident, and the plaintiff is not entitled to recover. Other Avitnesses have been called, who in part corroborate the story of the Avatchman, and in some particulars corroborate the story of the plaintiff." '
The whole case Avas thus fairly placed before the jury upon the issue, as to whether the defendant's servants, in executing its regulation as to deck passengers, used unwarrantable force and thereby caused the injuries of which the plaintiff complains.
One objection made by the defendant to the admission of evidence deserves to be noticed. The plaintiff in his evidence described the manner in which, as is contended, he Avas dragged by the watchman from the boxes. After stating that he was thrown to the floor, and was being roughly pushed by the Avatchman, he proceeded: " Then I saw another man coming Avith the uniform of the boat on, and the cap, and he said: 'All such men as you ought' to be killed.' I -says, 'What do you want to kill me for?' he says, 'You farmers are so stingy, you are too stingy to buy a state-room, and you ought to be killed.' I said, 'You ought not to call me stingy;' then he said, 'Have you looked at your ticket?' I think he had ' third assistant mate ' on his cap, the cap had a yellow cord, the same as the officers of the boat wore." It appeared, in proof, that the person here referred to was one of the mates of the Richmond.
The defendant objected, at the trial, to. the competency of the statements of • the mate. The objection was overruled and an exception taken. It is now insisted that* the defendant is not responsible for the brutal language of its servants,- and that the declarations of the mate to the plaintiff were not competent as evidence against the carrier. We are of opinion that these declarations constituted a part of the res gestee. They were made by one servant of the defendant while assisting another servant in enforcing its- regulation as to deck passengers. They were made when the watchman and the mate, according to the evidence of the plaintiff, were both in the very act-of violently "pushing" him, while in a helpless condition, to that part of the boat assigned to deck passengers. Plainly, therefore, they had some relation to the inquiry, whether the enforcement of that regulation was attended with unnecessary or cruel severity. They accompanied and explained the acts of the defendant's servants out of which directly arose the injuries inflicted upon the plaintiff. Vicksburg & Meridian Railroad v. O'Brien, 119 U. S. 99, 105; Ohio & Mississippi Railway v. Porter, 92 Ill. 437, 439; Toledo & Wabash Railway v. Goddard, 25 Ind. 185, 190, 191. As bearing upon this point, it may be stated that the jury were instructed that the case, as presented, did not authorize vindictive or punitive damages, and that in no event could they award the plaintiff any larger amount than would reasonably compensate him for the injuries received; thus guarding against undue weight being .given to the harsh words of the company's servants, apart from their acts.
Other questions arise upon the admission of evidence against the objection of the defendant; upon the refusal of the court to grant requests for instructions in its behalf; and upon cer tain parts of the charge, to which it excepted. In our opinion none of these questions require consideration; and the action of the court, in respect to them, constitutes no ground for the reversal of the judgment. The-charge of the court embodied all that need have been said. It correctly stated the propositions of law arising in the case. No substantial error having been committed, the judgment is
Affirmed.
S. C. 80 Am. Dec.' 2S6.