The rule as to the liability of carriers of passengers for personal injuries to passengers is thus stated in the case of Meier vs. Pennsylvania R. Co.:13

"Agnew, J. It is agreed on all hands, says Judge Redfield, in his work on Railways, ed. 1867, p. 174, that carriers of passengers are liable only for negligence either proximate or remote, and that they are not insurers of the safety of their passengers, as they are as carriers of goods and baggage of passengers. The numerous cases cited from which this result is drawn, justify this statement. Alden vs. N. Y. Central Railroad Co., 26 N. Y., 102, holding that a carrier is bound absolutely to provide a safe vehicle, irrespective of any question of negligence, is not in accord with the American cases generally, or the modern English decisions. It is reviewed in Redhead vs. Midland Railroad Co., 2 Law Rep. C. B., 412, and therein said not to be founded in good reason. See the cases collected in Shearman & Redfield on Negligence (1869), 299, Sect. 267

"The language of Judge Gibson, taken from New Jersey Railroad Co. vs. Kennard, 9 Harris, 204, that a carrier of either goods or passengers is bound to provide a carriage or vehicle perfect in all its parts, in default of which he becomes responsible for any loss or injury that may be suffered, has no relation to the question now before us. The case he was considering was that of a car made without guards at the window to prevent the arms of passengers being thrust out, to their injury, which he considered a defect in the construction of the car, making the carrier liable for negligence. The car was not perfect in its parts, as he thought. The car was imperfect in construction, and therefore not adapted to the end to be attained, to-wit, security. It may not be amiss to say that this opinion of the Chief Justice as to window guards was not sustained by the court in banc, and has since been overruled in Pittsburg & Connellsville Railroad Co. vs. McCleary, 6 P. F. Smith, 294. The doctrine we are now asked to sustain is that, though the car is perfect in all its parts, if imperfect from some latent and undiscoverable defect, which the utmost skill and care could neither perceive nor provide against, the railroad company must still be held responsible for injury to passengers, on the ground of an absolute liability for every defect. The plaintiff in error in effect contends that the defendants were warrantors against every accident, but even in the case referred to, Judge Gibson denied this rule. He said of the carrier, he is bound to guard him (the passenger) from every danger which extreme vigilance can prevent. This expresses the true measure of responsibility. He answered a point in these words: That the company is responsible only for defects discoverable by a careful man after a careful examination and exercise of judgment.' Thus: This is true, but were there such an examination and exercise of judgment? The defective construction of the car must have been obvious to the dullest perception/ etc. The same rule was laid down in Laing vs. Colder, 8 Barr., 482. Judge Bell says, it is long since settled that the common law responsibilities of carriers of goods for hire do not as a whole extend to carriers of passengers. The latter are not insurers against all accidents. But though (he says) in legal contemplation, they do not warrant the absolute safety of their passengers, they are bound to the exercise of the utmost degree of diligence and care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable in damages. The same doctrine will be found in substance in Railroad Co. vs. Aspell, 11 Harris, 149, and Sullivan vs. The Philadelphia & Reading Railroad Co., 6 Casey, 234, and in other cases. In all the Pennsylvania cases, it will be found that negligence is the ground of liability on the part of a carrier of passengers. Absolute liability requires absolute perfection in all respects, which is impossible.

9 Croom vs. Chicago, etc., R. Co., 52 Minn., 296, 38 Am. St. Rep., 557.

10 Barney vs. Oyster Bay, etc., Steamboat Co., 67 N. Y., 301.

11 Chicago, etc., R. Co. vs. Duncan, 28 Ind., 441, 92 Am. Dec, 322. 12 64 Pa. St., 225. 13 105 Va., 809, 54 S. E. 879.

"The utmost, which human knowledge, human skill, and human foresight and care can provide is all that in reason can be required. To ask more is to prohibit the running of railways, unless they possess a capital and surplus which will enable them to add a new element to their business, that of insurance. Nor can we carry the requirement beyond the use of known machinery and modes of using it. Railroads must keep pace with science and art and modern improvement in their application to the carriage of passengers, but are not responsible for the unknown as well as the new. The rule laid down by the learned judge, in the language quoted in the second assignment or error, is a correct summary of the law. The rule of responsibility differs from the rule of evidence. Prima facie, where a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it. Laing vs. Colder, 8 Barr., 482; Sullivan vs. Philadelphia & Reading Railroad Co., 6 Casey, 234; Shearman & Redfield on Negl., Sect. 280; Redfield on Railways, Sect. 1760, and notes. This is the rule when the injury is caused by a defect in the road, cars, or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can and ought to control as a part of its duty to carry the passengers safely; but this rule of evidence is not conclusive. The carrier may rebut the presumption and relieve himself from responsibility by showing that the injury arose from an accident which the utmost skill, foresight, and diligence could not prevent."

In the United States, at least it is well settled that a carrier of passengers is liable in damages for personal injuries inflicted on its passengers by intruders, strangers, or fellow passengers, if it knew or ought to have known that the danger existed, or was reasonably to be apprehended, and could, by the use of the agencies at its disposal, have prevented the mischief. In the reported case it is held that a street railway company is not liable to a passenger for an injury inflicted by a missile thrown by a stranger, standing in the street, for the purpose of injuring the motor man of one of its cars as a punishment for the motorman's refusal to stop the car at a place where it was not required by law or custom to stop. The decision is based on the ground that the motorman was not bound to anticipate that the stranger who was hailing the car would be guilty of a criminal assault upon the motorman or the passengers, particularly in view of the fact that the stranger was standing at a point where the company was not required to stop its cars and where it was not in the habit of stopping them. This holding seems to be sound in principle, is supported by authority, and is not in conflict with the general rule stated above.

In the present case of Norfolk, etc., R. Co. vs. Birchfield,14 it is held that when the conductor of a train hears an altercation between two passengers, it is his duty to interpose in order to prevent trouble, and that if he fails to do so the railroad company is liable for an assault by one of the passengers upon the other; and that this is especially true where there is a statute making conductors conservators of the peace and empowering them to make arrests on board their respective trains. It is also held in that case that it is the duty of the conductor to prevent an assault, even though he believes that the assaulting passenger is a special officer of the railroad company.

The liability of carriers of passengers for torts committed by their employees is considered in the case of Marion vs. Chicago, etc., R. Co.:15

"The rule is familiar that an employer is liable for the torts of an employe only when they are committed in the course of his employment. The difficulty has been to determine what acts should be deemed within the course of his employment. If, in this case, the conductor had forced the plaintiff from the train while in motion, and while crossing a bridge, the act very clearly would, under the circumstances, be deemed to be in the course of his employment, and that, too, even if it were shown that he had been expressly instructed to eject no person from the train when in motion, and especially when crossing a place as dangerous as a bridge. In one sense, the specific act would not be in the course of his employment, but his general employment to remove trespassers from the train would be sufficient to render the company liable.

14 8 American and Eng. Annotated Cases, p. 590.

15 59 Iowa, 428.

"But it appears to us that the act of an employe of a railroad company in removing a trespasser from a train cannot be considered the act of the company, unless he was engaged generally to remove trespassers, or specifically to remove the particular trespasser. The court below appears to have thought otherwise. The instruction given proceeds upon the theory that where a person is employed to do one thing, and he volunteers to do another, his act shall nevertheless be deemed to be within the scope of his employment, if his purpose was to serve his employer. But in our opinion the purpose of the employe is not in a case like the one at bar, material. The court, we think, was misled by a distinction which has been drawn by courts in a different class of cases. Where the question is as to whether the employer is liable for a wilful injury done by an employe, it is sometimes important to inquire whether the employe's purpose was to serve his employer by the wilful act. Illinois Central Railroad Co. vs. Downey, 18 I11., 259; Wright vs. Wilcox, 19 Wend., 343; Moore vs. Sanborn, 2 Mich., 519; Croft vs. Alison, 4 B. & Ald., 590; Johnson vs. Barber, 5 Gilman, 425; Foster vs. Essex Bank, 17 Mass., 479. The rule is that an employer is not liable for a wilful injury done by an employe, though done while in the course of his employment, unless the employe's purpose was to serve his employer by the wilful act. Where the employe is not acting within the course of his employment, the employer is not liable, even for the employe's negligence, and the mere purpose of the employe to serve his employer has no tendency to bring the act within the course of his employment. Where a female servant having authority to light fires within a house, but not to clean the chimneys, fit a fire for the sole purpose of cleaning a chimney, it was held that her employer was not liable for an injury caused by her negligence in lighting the fire. Mackenzie vs. McLeod, 10 Bing., 385; see, also, Towanda Coal Co. vs. Heeman, 86 Pa. St., 418.

"In our opinion, the court erred in the instruction given, and in refusing the instruction asked by the defendant. Several other questions are presented, but in the view which we have taken of the case, they will probably not arise upon another trial."