KEEP V. INDIANAPOLIS et ST. LOUIS B. 00. 633 �servant of another, — that is, a mere failure to perform the duties of his agency or service, — a stranger has no action against the agent or servant, because the latter has failecl in duty only to his principal or master. Hill v. Cavei-ly, 7 N. H. 215. But if the servant or agent, wliether executing the orders of his master or principal or npt, does a positive act of misfeasance or trespass, whereby another person is injured, he is liable to an action therefor by the person injured. Harriman v. Stowe, 59 Mo. 93 ; S. C. 2 Thomp. Neg. 1057 ; Moore v. Suydam, 8 Barb. 358 ; Wright v. Compton, 53 Ind. 337. In some cases the principal and agent may be jointly sued ; because if one commands a trespass and another executes it, both are principals, [Hewett v. Swift, 3 Allen, 420; S. 0. 10 Am. Law Reg. 505; Whitamore v. Waterhouse, 4 Car. & P. 383, per Parke, J. ;) and there seems no difflculty about this xinder the codes. Montfort v. Hughes, 3 E. D. Smith, 591 ; Phelps v. Waite, 30 N. Y. 78; Suydam v. Moore, 8 Barb. 358; Wright v. Compton, 53- Ind. 337. See also New Orleans, etc., R. Co. v, Bailey, 40 Miss. 395 ; Fleteher v. Boston, etc., R. Co. 1 Allen, 9; Illinois, etc., R. Co. v. Kanouse, 39 111. 272. �Whether the learned judge in the principal case was right in directing the jury that the Union Eailway & Transit Company was not a eommon carrier need not be discussed ; because it is conceived that its liability would be the same for an injury to a person while hauling him over its road, whether it be called a eommon carrier or not. Any debate about degrees of negligence in such a case would be misleading; for " when carriers uudertake to convey per- sons by the powerful but dangerous agency of steam, public policy andsafety require that they shonld be held to the greatest possible degree of diligence.
- * * Any negligence in such cases may well deserve the epithet of
gross." Phila. & Reading R. Co. v. Derby, 15 How. (U. S.) 486; Steam-boat New World v. King, 16 How. (U. S.) 469. The Union Eailway & Transit Company may nothe technically a eommon carrier; but in the prosecution of its business it has the custody of human beings, and the care of their lives, exactly as it would have if it were a rail way eommon carrier, and unquestionably it is subject to the same obligation of care in the prosecution of its business. In Schopman v. Boston, etc., R. Co. 9 Cush. 24, it was ruled that a railroad Company which receives on its track the cars of another company, placing them under the control of its own agents and servants, and drawing them by its own locomotives, over its own road, to their place of destination, assumes towards the passengers coming upon its road in such cars the relation of a eommon carrier of passengers, and all the liabilities incident to that relation. �St. Louis, Seymouk D. Thompson. ��� �
