injured party arising out of a contract relation was violated states, 'In every such case the employee is directly in the line of his duty, in the sense that he is presently engaged in doing the work for which he was employed. It is the duty of the conductor to make his collections, and it is his duty to maintain order in the car for the protection of passengers * * * . It is for such purposes these employees are engaged.' In fact, in all of the Pennsylvania cases allowing recovery the court shows that the servant was doing the work he was employed to do when the assault or misconduct occurred.
It cannot be said precisely whether under such circumstances in Pennsylvania the 'scope of employment' and the 'line of duty of the employee in charge is immaterial; or whether the scope of employment and line of duty are broadened not only to cover the regular work of such servant's employment for the carrier but also the duty to act affirmatively in preventing injury to the passengers by others, and the duty of such servant in charge of the carriage to refrain from causing such injury himself. The end result is the same. See Artherholt v. Erie Elec. Motor Co., supra; Greb v. Pennsylvania R.R. Co., supra; Berryman v. Pennsylvania R.R. Co., supra; Cherillo v. Steinberg, 118 Pa.Super. 485, 180 A. 115.
In this connection see 4 Williston on Contracts, supra, § 1113, p. 3172, 'The decisions are often rested on the ground that the action of the servant or agent was within the scope of his employment, and in many cases this may be true; but when the act in question had no relation to the carrier's business and, though occurring in the carrier's vehicle or station, was due wholly to private interests or motives of the servant, the carrier's liability must be rested on the broader ground previously discussed in connection with innkeepers.'
By comparison with the test writers, Corpus Juris Secundum, American Jurisprudence, and the weight of authority, we think it is fair to say that Pennsylvania applies the terms 'scope of employment' and 'line of duty' rather strictly and certainly not broadly. See authorities cited supra in footnote 3.
The rule announced in Artherholt v. Erie Elec. Motor Co., supra, is equally applicable to a taxicab company, a common carrier of passengers. Hughes v. Pittsburg Transportation Co., 300 Pa. 55, 150 A. 153; O'Connell v. Quaker City Cab Co., 84 Pa.Super. 323; Bickel v. Reed, 118 Pa.Super. 335, 179 A. 762; McBride v. McNally, 243 Pa. 206, 89 A. 1131, 52 L.R.A.,N.S., 259.
While the Supreme Court has never cited Artherholt v. Erie Elec. Motor Co., supra, eo nomine, (except in Palmer v. Philadelphia B. & W.R.R. Co., 218 Pa. 114, 118, 66 A. 1127, on another question,) that case in our judgment states the law of Pennsylvania. We say this notwithstanding the finding of non-liability in Greb v. Pennsylvania R.R. Co., supra; Scanlon v. Suter, 1893, 158 Pa. 275, 27 A. 963; Rohrback v. Pennsylvania R.R. Co., 1914, 244 Pa. 132, 90 A. 557, and in Win v. Atlantic City R. Co., 248 Pa. 134, 93 A. 876.
In Greb v. Pennsylvania R.R. Co., supra, and Berryman v. Pennsylvania R.R. Co., supra, the court considered the place of the assault one where ordinary care was the standard; in the Greb case the baggageman acting as brakeman and the conductor left the train to go upon the platform to commit the assault, an area where they had no duty to perform for the carrier; whereas in the Berryman case the officer committing the assault was not performing any duty whatsoever for the carrier at the place of the assault.
Scanlon v. Suter, supra, was a per curiam opinion, decided on procedural grounds. It is so cited in most cases which thereafter referred to it. In a few instances it has been cited with cases involving the question of liability under the doctrine of respondeat superior, e.g., in Greb v. Pennsylvania R.R. Co., supra. Win v. Atlantic City R. Co., supra, involved an assault by a brakeman; it is not clear what the circumstances were. Cf. Kelley v. Lehigh Valley R.R. Co., supra, where liability was sustained when a brakeman struck a departing passenger with a ventilator stick.
Rohrback v. Pennsylvania R.R. Co., supra, held as a matter of law the carrier was not liable for a wilful assault committed by a pullman porter upon a passenger for personal insult, as there was no evidence to show what the duties of the porter were; and moreover, the court held the evidence was insufficient to charge defendant with liability for the assault. When the assault occurred the passenger was standing on the lower step of the car while the train was stopped at the station platform. See opinion of the lower court in 1913, 22 Pa.Dist.R. 439; Rogers v. Philadelphia & Reading Ry. Co., 263 Pa. 429, 166 A. 734, held the railroad company answerable for the negligence of a pullman porter resulting in injury to the passenger. In Rohrback v. Pullman's Palace Car. Co., C.C.E.D. Pa., 1909, 166 F. 797, recovery was denied for the same injury as that in Rohrback v. Pennsylvania R.R. Co., supra, on the ground that the passenger was the aggressor in an unprovoked abuse of the servant and himself caused the assault. Cf. New Orleans & N.E. Ry. Co. v. Jopes, 1891, 142 U.S. 18, 12 S. Ct. 109, 35 L. Ed. 919, and see Pennsylvania Railroad Co. v. Aspell, 23 Pa. 147, 62 Am.Dec. 323 (a carrier is not liable for perils to which a passenger exposes himself by his own rashness or folly). Riddell v. Philadelphia Rapid Transit Co., supra, discussing Rohrback v. Pennsylvania R.R. Co., supra, 244 Pa.at page 132, 90 A.at page 557, appears to overlook the duty to protect the passenger as well as to refrain from assaulting him. We understand Rohrback v. Pennsylvania R.R. Co., supra, to hold that, since the special duty to protect was not present, respondeat superior was the measure of liability and therefore the defendant was not liable for an assault by the servant who had no other purpose than to punish for personal insult. See 10 Am.Jur.,supra, § 1123. And cf. Pennsylvania R.R. Co. v. Vandiver, 1862, 42 Pa. 365, 82 Am.Dec. 520; Lake Shore etc. Ry. Co. v. Rosenzweig, supra; Young v. Pennsylvania R. Co., 1886, 115 Pa. 112, 7 A. 741. And see Thompson-Starrett Co. v. Heinold, 3 Cir., 1932, 60 F.2d 360; Vannatta v. Tolliver, 82 Pa.Super. 546, at page 548; Jackson v. Fort Pitt Hotel Inc., 162 Pa.Super. 271 at page 273, 57 A.2d 696.
The plaintiff passenger was within the area in which the special duty of care was required; the circumstances surrounding the injury were such as to give rise to the presumption of negligence which the carrier was obliged to rebut; the motive of the servant for an unprovoked assault was immaterial; whatever view is taken of the scope of employment or line of duty the driver was performing the very task for which he was employed, i.e., driving the cab (a driver of a taxicab has the same duty and responsibility as to the vehicle and a passenger therein as a railroad conductor. Cf. Mittleman v. Philadelphia Rapid Transit Co., 221 Pa. 485, 70 A. 828, 18 L.R.A.,N.S., 503; Ainsley v. Pittsburg, C.,C. & St. L. Ry. Co., 243 Pa. 437, 90 A. 129) and executing the contract of carriage; there was substantial evidence to support the verdict; the case was properly submitted to the jury.
The defendant's motion to set aside the verdict is denied.
Defendant's motion for a new trial suggests no additional grounds and is also denied.