Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1830-09-11

fhe case recently tried III DA'""' - n :: =
Court, Judge Hanson presiding, OF NC I .asls"
ys. The Proprietors of the Union Line o. o@ss s
The Importance Of the decision induces US ~ Puv
fish to-day the opinion which was de,'verea ~
the Court, and which explains N the cleares' aa.u
most satisfactory manner, the Law, as spp" *.
bile to carriers Of persons. We believe that the
re sult Of this case will have the best effect in SCI
curing the public. safety and cenyenence.
o'''''s' ~ Bait. Gazette. !
The evidence on the partof theplaintiif' proved
that the Union Line being overtaken.by the OPP
position within seven or eight miles OF Baltimore
the driver of the former in order still 10 keep
| ahead. used the usual method OF running across
the path of the opposition: where the ground ara
mn. hermit this. he urged the horses TO full speed,
notwithstanding the entreaies of the passengers,
aud among the the plaintiff who begged nun
to desist, and let the opposition pass him. When
| the two stages reached the corner near fratt
street, where road to the right passes by the
Chemical factory, the opposition turned oh; on
perceiviny which the driver of the Union Line
started atfuIl speed, to prevent the other reach,
ing Baltimore street before him. He continued
at a gallop until he met some carts between
Green and Paca streets in Pratt street. against
one Of which the stage struck, and, on account q
its great rflocity, was overturned. Inc plain
|
forehead much cut. and he was confined for six
weeks by the accident
The evidence ON the part Of the defendants
proved that the driver of the Union Line was Of
excellent character, and much skill; that the
Proprietors had given him express orders not to
race against the Opposition; and that Immediate
Nv after the accident in question, he had been
dismissed from their employ, and although fire.
ouently seeking to return to it, had been m
yariably refused. He was examined as a wit
ness, after release from the defendants, and
stated. that, at the time Of the accident he did
not much think about his orders. but was anx-
ious to get into town before the opposition.
After the testimony was closed the counsel
for the defendants prayed that the Court would
rive the following instructions to the Jury.
That ifthe Jury shall find from the evidence
that the defendants in the cause expressly for.
babe the driver of the stage to race against the
{ oppositon,-and that dsregardng and Violating
said order, the said driver did race their stage
and that the injury suffered by the plaintiff was
an immediate consequence of such wilfuneSs OF
the driver. and violation of the express orders
given to him by his employers; that then. IN such
case, they, the defendants are not liable,in dam
ages for said injury"
This prayer the Court refused, and delivered
the following " OPINION.
The prayer and the argumentin support of it or
, the part of the defendants have proceeded, we
think very correctly, on the ground. that in order
to sustain the action against the servants his ac
must have been in its inception tortious, and ev'
idence has therefore been given that the driver,
in racing against the opposition, did so against the
express orders of his owners, and that therefore
his conduct, being wilfu, is rendered tortious
l.. c.l. No IN
clusion is that no direction which the master could
give to his servant as to duties and conduct which
the law itself imposed, could alter the nature OF
the obligations to the plaintiff or effect the Char
acter Of or the distinction which the law creates
between the different remedies it affords-and
!, from careful examinationofa technical question
touching the rights and interests OF very useful
: body of men, affording great accommodation to
the public, and the rights, interest and safety OF
the public itself, we think that the best rule de.
drclble from collation. of the authorities is
| that inasmuch as servant can be sued in Tres
pass Wet arms, only where the master is not Ii.
able Except where they are joint trespassers) SO
the master is alwaysiable where the servant is
not and both are liable in an action on the case
when sued Jointly for joint act. Are the facts
then before us such as to sustain an action of tres
pass vi ct arms or an action in case:
To sustain the former, the act complained Of
must be tortious and in itself actionabe, that is
to say not only wiifiiin the sense contemplated
bv the prayer of the Defendants, butintcntional.
direct and Immediately effectng an injury (no
matter how slight and from its character indi-
eating design to modest at the moment
the rights Of others. Now although the rae.
ing Of stage may be misdemeanor and
indictable, being contra bonos mores and endan.
serng the safety of the public at large, it is not
of itself actionabe; the injury arising from it, is
therefore technically Incidental, and consequen.
tial, and the remedy is in case, not in trespass;
if therefore the cart or the horse against which the
driver ran had been injured, the action would be
case against the owners not trespass against the
driver; The act ofracing The stage oas iUifil,n not
the running agGinsf The cart. If this be the true
doctrine as regards the rights Of third persons,
who are strangers and not at all included in the
obligations ofthe owners and passengers, the rea.
son for it in the case of the latter is in SO much
stronger as the injury to them is the more remote,
fho,.o c,,, nf ..cfa e.