(dissenting.) I think the court fails to properly discriminate between things a railroad company can do and those things it cannot do, when granting special privileges to excursionists. Ai’ailroad company, in consideration of eu - joying the special benefits of the state’s right of eminent domain, and also under the rules governing public carriers, owes certain duties to the public, of which it cannot relieve itself by leasing its road or trains to another. Among these is the duty of affording facilities at all times, under reasonable circumstances, for carrying freight and passengers, as the demand may be made upon it. Its duty is to carry freight and passengers with all proper dispatch and safety. When these duties have been performed, the public demand has been met, and, as the road and its trains and appliances belong to the company, it may use it as it sees fit; for in such case the public has no further claims upon it.
It is not denied that a railroad company can hire its trains—the seats and passenger accommodation therein—to excursionists. Indeed, this is expressly sanctioned by statute, which allows reduction of fare in eases of excursions not allowed otherwise. This being true, it remains to ascertain what are those things pertaining to an excursion train which it can do and cannot do. It certainly can permit excursionists to fill up the cars with just such persons as they think proper to admit therein, for the principal objects of an excursion is to gather together congenial spirits for an outing. I refer now to an excursion like that under consideration, for there is another kind of excursion. Now, any rules the excursionists may choose to make by which they may select their company is within their right to make, and they alone are responsible for their effects upon others, and the railway company is not. Otherwise, special excursions are not to be thought of; for the people will not seek recreation and the joys of social intercourse, except with those who are congenial, and the railroad companies cannot afford to contract with excursionists without being relieved of the work and responsibility of selecting the persons to be included in the company.
It is to be conceded, also, that the company cannot relieve itself of the duty of operating its trains—even excursion trains— by and through its own skilled and duly-authorized servants— persons who understand the business in their several spheres. Public policy demands that these skilled and competent persons shall operate the trains, even when loaded with excursionists traveling under special contracts, for the duty of life and property demands that this should be so. These skilled and trained employees are under the restraints incident to their employment, and are then the better suited to this class of work. Hence the_ rule laid down in Texarkana & Ft. Smith Railroad Co. v. Anderson, ante, p. 123, is the correct rule, as was the rule in Harmon v. Railway Company, 28 S. C. 401, and Collins v. J. & P. Ry. Co., 39 S. W. 643; for in each of those cases the negligencé alleged was in the operating and running the train, so as to produce the injury complained of; and in the case of Collins v. Railway Company the negligence complained of was the neglect of the conductor to protect the plaintiff from'insult at the hands of her fellow passengers, a duty the conductor and his company clearly owed to the public, one which the company could not delegate to the managers of the excursionists, so as to relieve itself of the necessity of its performance. That duty is one of the police duties imposed by law upon the conductor and other trainmen, a failure to perform which renders the company liable.
Finally, the railroad company, having provided for meeting the reasonable demands of the public for the carriage of passengers, is at liberty to employ its trains in its own way, with the proviso that these trains must, as a matter of public policy, be operated and run by its own qualified servants for the protection and safety of life and property, and any negligence in this respect (that is, in running and operating the train) will render the company liable.
The appellant never became the passenger of the railroad company, because she was excluded from the coach by the lessees of the train before the company or its servants had entered upon the performance of their duties—the running and operation of the team. Until the company, through its servants, took charge of the train for the purpose of running it, the lessees had the right, under their lease, to exercise their right of selecting passengers, being also responsible to persons injured by the unlawful manner of exercising that right of selection. The railroad company undertook, and was required, only to carry such persons as the lessees might select for the excursion, and owed no duty to such as the lessees excluded before the train started.
I think the judgment of the circuit court was correct, and should be affirmed.
Battle, J., concurs in this dissenting opinion.