Page:The Green Bag (1889–1914), Volume 16.pdf/834

 Notes of Recent Cases. bility of common carriers to their pas sengers and the liability of innkeepers to their guests are similar, and while that prop osition may be conceded, it is certain that the limits of these liabilities are by no means the same. A railroad company is liable to its passengers for a failure to exercise the utmost care in the preparation of its road and the operation of its engines and trains upon it, because the swift movement of its passenger train is always fraught with ex traordinary danger, which it requires extra ordinary care to avert. But an innkeeper's liability for the condition and operation of his hotel is limited to the failure to exercise ordinary care, because his is an ordinary oc cupation fraught with no extraordinary dan ger. Sandys v. Florence, 47 L. J. C. P. L. 598,600. It no more follows, from the simi larity of the liability of the carrier to that of the innkeeper, that the latter is liable for the wilful or negligent acts of its servants be yond the scope of their employment, than it does that the latter is liable for a failure to exercise the highest possible care to make his hotel and its operation safe for its guests, because the carrier must exercise that de gree of care in the management of its rail road, engines and trains. Again, there is a marked difference in the character of the contracts of carriage on a railroad or steam boat and of entertainment at an inn, and a wide difference in the relations of the parties to these contracts. In the former the car rier takes and the passenger surrenders to him the control and dominion of his person, and the chief, nay, practically the only, oc cupation of both parties is the performance of the contract of carriage. For the time being all other occupations are subordinate to the transportation. The carrier regulates the movements of the passenger, assigns him his seat or berth, and determines when, how and where he shall ride, eat, and sleep, while the passenger submits to the rules, regulations, and directions of the carrier, and is transported in the manner the latter directs. The contract is that the passenger will surrender the direction and dominion of his person to the servants of the carrier, to-

775

be transported in the car, seat, or berth, and in the manner in which they direct, and that the latter will take charge of and transport the person of the passenger safely. The log ical and necessary result of this relation of the parties is that every servant of the car rier who is employed in assisting to trans port the passenger safely, every conductor, brakeman, and porter who is employed to assist in the transportation, is constantly acting within the scope and course of his employment while he is upon the train or boat, because he is one of those selected by his master and placed in charge of the per son of the passenger to safely transport him to his destination. Any negligent or wilful act of such a servant which inflicts injury upon the passenger is necessarily a breach of the master's contract of safe carriage, and for it the latter must respond. But the con tract of an innkeeper with his guest, and their relations to each other, are not of this character. The innkeeper does not take, nor does the guest surrender, the control or dominion of the latter's person. The per formance of the contract of entertainment is not the chief occupation of the parties, but it is subordinate to the ordinary business or pleasure of the guest. The innkeeper as signs a room to his guest, but neither he nor his servants direct him when or how he shall occupy it; but they leave him free to use or to fail to use it, and all the other means of entertainment proffered, when and as he chooses, and to retain the uncontrolled do minion of his person and of his movements. The agreement is not that the guest shall surrender the control of his person and ac tion to the servants of the innkeeper in or der that he may be protected from injury and entertained. It is that the guest may re tain the direction of his own action, that he may enjoy the entertainment offered, and that the innkeeper will exercise ordinary care to provide for his comfort and safety. The servants of the innkeeper are not placed in charge of the person of the guest, to di rect, guide, and control his location and ac tion, nor are they employed to perform any contract to insure his safety; but they are