On petition for rehearing.
Thayer, J.I have examined the petition for a rehearing filed herein, and am unable to discover therefrom any good reason for changing the former opinion expressed in this case. ■ The petition, in fact, is but an extended argument upon the questions already considered, and I would deem it unnecessary to indicate any further view, were it not for certain language which appears in the petition, of which the following is a copy: “If the principles are to be applied to the extent indicated in the opinion, they carry the law of agency to the extent not heretofore enforced or declared in any case within our knowledge, and which, as it *235seems to us, must tend to a very great extent to render the transactions of business by means of agents impracticable, for the reason that under the doctrine of this case the master or principal is rendered powerless, be is at the mercy of his employees, who may, as his agent, but without his authority, or knowledge, or consent, by leaving the line of their employment, do wrongful acts enough to bring bankruptcy and ruin to the master or principal.”
I supposed the position of the court would be understood, from what has been already announced as its views upon that question; but counsel seem to overlook the principle upon which the opinion was based. It is simply this: A common carrier of passengers undertakes to transport them safely and with reasonable dispatch. That is an obligation the common carrier takes upon himself, or itself, when he or it engages to carry passengers for hire. If that obligation is broken, the carrier is liable, whether the breach results from the negligence, misconduct, or malice of the persons the carrier employs to perform the obligation.
The question whether the agent kept within the line of his duty, or got out of it, is unimportant. A conductor, brakeman, or other employee upon a passenger train of cars, is employed to perform certain duties; but whether he keep within the line of his duty or not has nothing to do with the company’s liability to a passenger, if injured through the fault of such employee.
A railroad engineer would have no right to get drunk, or act recklessly or maliciously while running a train of cars. If he did so, he might be said, in one sense, to be outside of his line of duty; but who would undertake to exonerate the company from liability for an injury to a passenger occasioned by any such acts? A person who takes passage upon a train of cars contracts with the company that he shall receive good treatment while in transit. Under such circumstances, could it reasonably be contended that the company would not be liable, if its agents or servants were wantonly to inflict abuse upon such passenger? No court would stop to inquire whether the agent or employee was outside of his line of duty or not; it would make no difference whether he acted from honest motives or maliciously; the *236effect would be the same. The obligation of the company would be violated, and its liability attach. So with the obligation to transport passengers safely. It may be violated as well by the malicious acts as the negligent acts of its employees, and the question of their being within or beyond their line of duty in such cases cannot be considered.
The rule is different, of course, where the act of the agent affects a party to whom the company owes no duty. There the character of the act, as to its being negligent or malicious, becomes important. That a master is not ordinarily liable for the malicious acts of his servant is an old and well-settled principle, and the reason of the rule is that the servant becomes a principal when he commits such acts; he is then outside of his line of duty. But in a case like the one under consideration, the master cannot shield himself from liability upon any such grounds. The liability there arises out of another principle, which was attempted to be explained in the opinion delivered.
The exception to the proof as to the kind of car the respondent was in when the collision occurred between the cars and engine is insisted upon as ei’ror with more pertinacity than consideration. The point is merely technical at most. If the position of the appellant’s counsel were correct, they have very little to complain about. They were certainly not taken by surprise in the proof; it was not a matter that could be sprung upon them and they not prepared to meet. The proof related to an open, visible, notorious fapt, which they were as well prepared to disprove, no doubt, at one time as another. How could it have been important to apprise the appellant that the respondent would prove the style and arrangement of the car. The former knew that it was an open car, that the seats were arranged lengthwise, and that the ends were entirely open; or if that were not the fact, they could have disproved it by its employees who had control of the car, and by hundreds of others upon very short notice. The fact was of such a character that the appellant could not have been misled in consequence of the proof. The counsel for the appellant seem to think that it was entitled to all the immunity of a prisoner under indictment. The claim that this *237proof tended to establish another and different ground of liability, to my mind, is wholly absurd. Proving the mode in which the car was constructed established no liability. The appellant had a legal right to run cars of that character upon its road, and the respondent took all the risk incident thereto when she engaged passage upon them. It is not like a case where cars are defective and occasion a casualty in consequence thereof; they were perfect as designed. If the respondent had engaged passage in a closed car, an ordinary passenger coach, and the company had placed her in an open flat car, there might have been grounds for liability in case of accident. Using such kind of car under the circumstances this one was employed did not, however, create any liability, and the fact as to its mode of construction and arrangement was only important as an effect, and not as a cause. Its proof was competent in order to show how the injury was received, and to disprove the charge of contributory negligence, and it evidently was admitted upon that ground.
There are no sufficient grounds for a rehearing, and the motion will therefore be denied.