Liability of the Carrier to Passengers for Injuries by Its Servants

With the unprecedented development of the means' of transportation in the early nineteenth century, and the increased use of the corporate form of ownership and control of these means, the inadequacy of the familiar rule of law, respondeat superior, as a protection to the travelling public from the torts of the carrier's servants was recognized. The majority of courts applied with the utmost rigor a test which determined the master's liability by considering whether the act complained of was within the scope of the servant's authority. Some few courts said that the liability depended rather upon whether the act was in the course of the employment. In either case the liability depended upon the effect of the arrangement between the master and the servant, and there was little practical advantage in the change of expression.

The master's liability was, further qualified by the so-called rule of McMamuals v. Cricket , which, denied any recovery where the servant's act was malicious or wilful. Additional difficulties in the way of a satisfactory rule of liability arose from a belief that a corporation could not be sued in trespass. Consequently, in the middle of the century a new rule was developed in the courts of the United States which was peculiarly well adapted to the ever-increasing number of cases by passengers against railroad companies for injuries from the wilful wrongs of the carriers' employees. It may be advisable at this point to say that this rule has never been applied in any courts but those of the United States.

The liability of the carrier to the passenger in all parts of the British Empire is still determined by considerations of the scope of the employer's authority