"Although, among the numerous cases on this subject, some may be found (such as the case of Lamb v. Palk, 9 C. & P. 629) in which the courts have made some distinctions which are rather subtile and astute, as to when the servant may be said to be acting in the employ of his master; yet we find no case which asserts the doctrine that a master is not liable for the acts of a servant in his employment, when the particular act causing the injury was done in disregard of the general orders or special command of the master. Such a qualification of the maxim of respondeat superior would, in a measure, nullify it. A large proportion of the accidents on railroads are caused by the negligence of the servants or agents of the company. Nothing but the most stringent enforcement of discipline, and the most exact and perfect obedience to every rule and order emanating from a superior, can insure safety to life and property. The intrusting such a powerful and dangerous engine as a locomotive to one who will not submit to control, and render implicit obedience to orders, is itself an act of negligence, the ' causa causans' of the mischief; while the proximate cause, or the ipsa negligentia which produces it, may truly be said in most cases to be the disobedience of orders by the servant so intrusted. If such disobedience could be set up by a railroad company as a defence, when charged with negligence, the remedy of the injured party would, in most cases, be illusive, discipline would be relaxed, and the danger to the life and limb of the traveller greatly enhanced. Any relaxation of the stringent policy and principles of the law affecting such cases would be highly detrimental to the public safety."
1 Sammell v. Wright, 5 Esp. 263; Dean v. Branthwaite, 5 Esp. 35; if a person hire a hackney-coach and driver, and the horses or coach be injured, he will not be responsible therefor.1 But if he hire a coach and horses, and allow his own servant to drive, he will be responsible for injury done by the servant, unless it be wanton and malicious. Yet if he hire a coach, horses, and driver, and insist that the latter shall drive in a particular manner, by which injury is done; or if he order him to leave the horses, and during his absence they run away, and over-turn and destroy the coach, the hirer will be liable.2
§ 885. What constitutes negligence must depend upon the circumstances of each case, the nature and value of the bailment, and the known skill and capacity of the hirer. He is not liable for thefts, unless they be committed under circumstances which presuppose a want of proper care and diligence.4 If the injury or loss be occasioned by unavoidable accident, or overwhelming force, and without his fault, he is not liable.6 By the English rule, the burden of proof is upon the bailor to establish negligence; a mere proof of loss does not create a presumption thereof, which must be rebutted by the bailee. The rule has, indeed, been somewhat controverted in America, and still seems open to doubt.2
Pothier, Contrat de Louage, n. 196; 10 Am. Jur. 256, 257, 258; Milligan v. Wedge, 12 Ad. & El. 737; Story on Agency, § 53, and note (5); Hughes v. Boyer, 9 Watts, 556; Quarman v. Burnett, 6 M. & W. 499.
1 Huges v. Boyer, 9 Watts, 556.
2 Laugher v. Pointer, 5 B. & C. 547; Quarman v. Burnett, 6 M. & W. 499. When both parties are silent as to the number of persons who are to be permitted to drive in a hired carriage, the hirer is authorized to carry such a number as the vehicle was intended to carry, not exceeding the load properly adapted to the horses drawing the same. Harrington v. Snyder, 3 Barb. 380. If A. rides with B. from C. to D., knowing that B. hired the horse to go only to C, A. is not liable in trespass to the owner of the horse if he exercise no control over him. Hubbard v. Hunt, 41 Vt. 376 (1868).
4 Finucane v. Small, 1 Esp. 315; Brind v. Dale, 8 C. & P. 207; s. c. 2 Mood. & Rob. 80; Clarke v. Earnshaw, Gow, 30; Broadwater v. Blot, Holt, N. P. 547; Leek v. Maestaer, 1 Camp. 138; Story on Bailm. § 407; Jones on Bailm. 91, 92; Harrington v. Snyder, 3 Barb. 380. See Butt v. Great Western Railway Co., 11 C. B. 140; Great Western Railway Co. v. Rimell, 27 L. J. (n. s.) C. P. 201; 6 C. B. (n. s.) 917, Am. ed.
5 Menetone v. Athawes, 3 Burr. 1592; Longman v. Gallini, Abbott on Shipping, 259, note d; Reeves v. Ship Constitution, Gilp. 591; Cailiff v. Danvers, Peake, 114; 2 Cowp. 479; Butt v. Great Western Railway Co., 11 C. B. 140; 7 Eng. Law & Eq. 448.
§ 886. The analogies of the law, and the weight of authorities, seem to require the bailor to offer some evidence of negligence in the outset, which may be held sufficient, unless the bailee explains or accounts for the loss in some way. But if no evidence at all be offered tending to show negligence in the bailee, other than the mere naked, simple fact of the loss or injury to the thing bailed, or if the jury be uncertain whether the bailee was in fault, it would seem the bailor ought not to recover. Negligence is the gist of his action, and the duty of proving such fact seems naturally to belong to him whose case depends upon it.3
§ 887. The hirer must not only use the article with due care, but he must restrict himself to the precise use for which it is hired.1 Thus, if a horse be hired to journey to one place, the hirer cannot journey with him to another place; and such a misuser is considered as a conversion of the property, for which the bailee is responsible to the full extent of the loss, from whatever cause it may happen.2 There may, however, be an exception in favor of cases where the same injury or loss must inevitably have occurred without such conversion.3
1 1 Bell, Comm. 454; 2 Kent, Coram. 587; Story on Bailm. § 410; Adams v. Carlisle, 21 Pick. 146; Carsley v. White, 21 Pick. 254; Brind v. Dale, 8 C. & P. 207; 8. C. 2 Mood. & Rob. 80; Finucane v. Small, 1 Esp. 315; Cooper v. Barton, 3 Camp. 5, note; Newton v. Pope, 1 Cow. 109.