Harriman . Railway Company.

unsafe condition. Plaintiff was standing near it, and another person negligently drove against it, causing it to fall on plaintiff, whereby he was injured. It was contended that the defendant's negligence was only the remote, while the driver's was the immediate, cause of the injury, and therefore the defendant was not liable. But it was held by the court, that "if the timbers were negligently piled by defendants, the negligence continued until they were thrown down, and (concurring with the action of the driver) was a direct and proximate cause of the injury sustained by plaintiff."

In the latter case, Lane v. Atlantic Works, the defendant carlessly left a truck loaded with iron on a public street in Boston. The iron was so negligently placed on the truck that it would easily fall off. The plaintiff, a boy seven years old, was walking along the street, when he was called by another boy twelve years old, to come over and see him move the truck. The plaintiff went over and stood near the truck while the other boy was attempting to move it. In consequence of the motion thus given the truck by the other boy, the iron rolled off and injured the plaintiff's legs. Colt, J., in the opinion of the court disposes of the question now under consideration as follows: "In actions of this description the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged. But it will not be considered too remote, if according to the usual experience of mankind the result ought to have been apprehended. The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrong-doer, if such act ought to have been foreseen The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise." In that case it was held immaterial whether the act of the boy in moving the truck and, thus causing the iron to fall upon the plaintiff, was mere negligence or voluntary wrong-doing.

Harriman v. Railway Company.

And see Nagel v. The Missouri Pacific Ry. Co., supra; Binford v. Johnston, 82 Ind. 426; Wharton Neg., sec. 85.

In this case the plaintiff, when injured, was free from fault, and where he might lawfully be. He was not instrumental, in any way, in bringing about the disaster, nor chargeable with Brown's conduct or agency therein. The defendant, by its negligent act and omission, in placing and leaving the torpedo where it was found and picked up by Brown, rendered the plaintiff's injury possible and probable; and the danger of injuries resulting from some one picking up and handling an instrument of the kind described in plaintiff's amended petition, left upon the defendant's track, at the place and under the circumstances therein stated, would have been reasonably anticipated by a person of ordinary care and prudence.

The act of Brown, therefore, was but a contributing condi tion, which defendant's servants ought to have anticipated as a probable consequence of their negligent act or omission, while their negligence remained the culpable and direct cause of the injury suffered by plaintiff.

III. It remains to be considered whether, from the statements of the amended petition, the acts and conduct of the defendant's agents and servants, constituting the negligence therein charged, were so within the scope of their employment as to make the defendant liable for the injuries thereby done to the plaintiff. It is claimed they were not, because it is alleged that the torpedoes were wantonly placed upon the defendant's track by its servants, when and where there was no necessity or occasion for their use. It appears from the pleading "that the defendant in using and operating its road and trains" carried these torpedoes on its trains to be used by its servants in the management and operation of its trains; that the defendant's servants then engaged in the management of one of defendant's trains having torpedoes upon it, took these torpedoes from the train, and while so in the control and management of the train, wantonly placed them on the track. "That defendant so carelessly and negligently conducted itself in the management of its said train of cars, that it carelessly failed to explode and destroy all of the torpedoes,

Harriman v. Railway Company.

but negligently left one exposed and unexploded on its track,"

etc.

The railroad company having intrusted to its servants the control and management of its train of cars, and the custody of these dangerous explosive articles, to be used by them on its road, in the operation and management of the train, necessarily confided to some extent, in the judgment and discretion of the servants in their use. The authority to the servants was to use the torpedoes on the road in the management of the train. The real ground for claiming that the defendant is not liable, is that they were used at a time and in a manner not within their instructions or authority. But the defendant must be held to have taken upon itself the risk of errors of judgment on the part of the servants, and of mistakes, in the exercise of the discretion confided to them; and to be liable for their misjudgment and abuse of discretion in the use of them.

Nor does the fact that the conduct of the servants, constituting the negligence complained of, was a violation of their duty to the defendant, or was needless, reckless or wanton, exonerate the defendant. A master does not ordinarly authorize or expect negligence in the servant. Reasonable care and fidelity in his employment, is a part of the servant's engagement; and every act of negligence on his part is in some sense a violation of his duty to the master and a deviation from his authority.

The case of Hoffman v. The N. Y. C. & H. R. R. Co., 87 "N. Y. 25, so accords with our views on this subject, that we forbear any extended re of the numerous other cases sustaining them.

In that case the plain, a boy eight years of age, jumped on the steps of a car in aassenger train upon the defendant's road, and sat down upon the platform of the car. He was kicked from the car by the conductor, or a brakeman, while the train was running at a speed of about ten miles an hour and was injured. By the regulations of the defendant, in force at the time, the conductor had charge of the train and was responsible for its safe and proper management; and

Harriman v. Railway Company.

brakemen and other servants thereon were subject to his orders. He was authorized to remove from the cars persons who should refuse to pay their fare or were drunk, riotous or unruly; but must be governed by the provisions of the law in so doing. The law then in force provided that "if any passenger shall refuse to pay his fare, it shall be lawful for the conductor to put him and his baggage out of the car, using no unnecessary force, at any usual stopping place or near any dwellings, on stopping the train."

It was held that the defendant was liable, and in the opinion of the court, Andrews, C. J., says: Assuming the case made by the plaintiff, the act (of kicking him from the car) was flagrant, reckless and illegal; but the point is, was it within the scope of the employment? The removal of trespassers from the cars was, as we hold, within the implied authority of the defendant's servants on its train. The fact that they acted illegally in removing the plaintiff while the train was in motion, does not exonerate the defendant. ** No doubt the kicking of the boy off the car was not only a wrong to the plaintiff, but was a violation of the duty which the train servants owed to the defendant, to exercise proper care in executing the authority confided to them; but in most cases where the master has been held liable for the acts of the servant, the tortious act was a breach of the servant's duty. In this casc authority to remove the plaintiff from the cars was vested in the defendant's servants. The wrong consisted in the time. and mode of exercising it. For this the defendant is respon-ible, unless the brakeman used his authority as a mere cover for accomplishing an independent and wrongful purpose of his own."

So it may be said in this case, that at most it appears that the defendant's servants, while acting in its business and within the scope of their employment, deviated from the line of the'r duty to the defendant and disobeyed its instructions. Nevertheless, while so deviating and disregarding their instruetions, they were still doing their employer's work, though not according to their instructions. And see Quinn v. Power, 87 N. Y. 535.

Citizens' National Bank v. Brown.

We are therefore of opinion that the plaintiff's amended petition states a cause of action, and that the demurrer should have been overruled.

The judgments of the district and common pleas courts are reversed, and the cause remanded to the common pleas court, with instructions to overrule the demurrer, and for further proceedings.

CITIZENS' NATIONAL BANK v. BROWN.

Banking-Negotiable instruments-Lost certificate of deposit-Liability--Indemnity.

1. A certificate of deposit issued by a national bank for $1,145, payable to the order of the depositor, on the return of the certificate, in current funds is, in effect, a negotiable promissory note.

2. Where such a certificate is lost by the payee, and the same has never been indorsed by him, he may maintain an action at law thereon against the maker, without tendering an indemnity against future liability.

(Decided March 22, 1887.)

ERROR to the District Court of Hamilton County.

Eugene E. Brown, the defendant in error, brought suit in the superior court of Cincinnati, against the Citizens' National Bank of Cincinnati, the plaintiff in error, alleging in substance, in his petition, that on the 9th day of August, 1882, he deposited in that bank the sum of eleven hundred and fortyfive dollars, and received from the bank a certificate of deposit, of which the following is a true copy:

"762. CITIZENS' NATIONAL BANK, Cincinnati, August 9th, 1882. Eugene E. Brown has deposited in this bank, eleven hundred and forty-five dollars, payable to the order of himself on return of this certificate, in current funds,"which certificate was signed by the proper officer of the bank. That on the 16th day of September, 1882, at Cincinnati, Ohio, he lost the certificate of deposit, and his pocket-book containing the same, and had not since that time seen or