The opinion of the Court was delivered by
Rogers, J.— If an injury be done by the act of the party at the time, or he be the immediate cause of the injury, though it happen accidentally, or by misfortune, he is answerable in trespass. . The distinction in this form of suit, has not turned either on the lawfulness of the act, from whence the injury happened, or on the design of the party doing it, to commit the injury; but on the difference between injuries direct and immediate, or mediate and consequential: in the one instance the remedy is by case; in the other, by trespass. Scott v. Shephard, (2 Hen. Blackst. 895.) Reynolds v. Clarke, (2 Lord Ray. 1402.) Leame v. Bray, (3 East, 598.) Where the injury is done by the master himself, trespass will lie, whether the injury be accidental or wilful: and the law is the same when suit is brought against the servant himself, for an act done by him. A master is not liable, either in trespass or in case,' for the wilful act of his servant, .as by driving his master’s carriage against another without his direction or assent. But he is liable to answer for any damage arising to another, from the negligence or unskilfulness of his servant acting in his employ. But in what form of action is he liable ? And the authorities are uniform, that case, and not .trespass, is the proper remedy. When a servant is in point of law a trespasser, the master is not chargeable as such; though liable to make compensation for the damage consequential from his employing an unskilful or negligent servant. The employment of the servant, it is true, is the act of the master, but from that no immediate prejudice arises to those who may suffer from his subsequent acts. It is accordingly held, that case, and not trespass, was the proper remedy, for an injury done to the plaintiff ’s chaise, by the servant of the defendant so negligently driving his carriage that it struck against the plaintiff’s chaise, and broke it. The Court said, in Morley v. Gainsford, (2 H. Bl. 442,) that it was difficult to put a case where the master could be considered as a trespasser, for an act of his servant, which was not done at his command. But in the case at bar, it is not pretended that the act was done at the command of the corporation, nor is there the slightest evidence from which their assent can be implied. If, therefore, the defendants, under the circumstances of the case, are hable, it is very clear that it iá not in this form of suit, but in action on the case, for the unski'lfulness or negligence of the - engineer, who, at the time the injury was done, was acting as the servant of the company.
Judgment reversed.