A. L. Smith, L. J., read the following judgment:[[109]] There appears to have been some misapprehension as to what was decided in the case of Taylor v. Manchester, Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q. B. 134, to which I was a party.
The plaintiff in the present case was a passenger on the defendants’ railway, and whilst lawfully riding in one of their carriages was injured by its being negligently run into a dead-end by the defendants’ driver.
It has been thought by the master, and also by Day, J., that, because the negligence was that the driver omitted to turn off steam, this constituted a nonfeasance or omission within what was said in the above-mentioned case, and that as the plaintiff had recovered 25l. and no more he was only entitled to county court costs. I am clearly of opinion that this is not what was decided, nor is any such statement to be found in that judgment.
The distinction between acts of commission or misfeasance, and acts of omission or nonfeasance, does not depend on whether a driver or signalman of a defendant company has negligently turned on steam or negligently hoisted a signal, or whether he has negligently omitted to do the one or the other. The distinction is this, if the cause of complaint be for an act of omission or nonfeasance which without proof of a contract to do what has been left undone would not give rise to any cause of action (because no duty apart from contract to do what is complained of exists), then the action is founded upon contract and not upon tort. If, on the other hand, the relation of the plaintiff and the defendants be such that a duty arises from that relationship, irrespective of contract, to take due care, and the defendants are negligent, then the action is one of tort, and as regards the County Court Acts and costs this is what was laid down in the above-mentioned case. The appeal should be allowed with costs here and below.
Rigby, L. J. I entirely agree. It appears to me that the attempt to dissect the act of the defendants’ servant, and to treat the mere omission to turn off steam as a nonfeasance within the meaning of the cases referred to, altogether fails. An engine-driver is in charge of the train, and a passenger is in that train, independently of contract, with the permission of the defendants. That passenger is injured in consequence of the train being negligently brought into collision with the dead-end. The proper description of what was done is that it was a negligent act in so managing the train as to allow it to come into contact with the dead-end and so cause the accident. It is a case in which the company by their servant neglected a duty which they owed to the plaintiff—that is to say, it was a case in which an action of tort could be brought.
Appeal allowed.[[110]]
SOUTHERN RAILWAY COMPANY v. GRIZZLE
Supreme Court, Georgia, January 13, 1906.
Reported in 124 Georgia Reports, 735.
Action by Mrs. Grizzle against the Southern Railway Company and T. A. O’Neal.
The petition alleged, in substance, that the petitioner’s husband was killed by the negligence of the railway company, and of O’Neal, who was the engineer in charge of the train, while the train was being operated over a public-road crossing. It was alleged, inter alia, that no bell was rung nor whistle sounded, nor the speed of the train checked, and that the requirements of the blow-post law[[111]] were entirely disregarded by the engineer. To this petition O’Neal demurred on several grounds. The demurrer was overruled, and O’Neal excepted.[[112]]
Cobb, P. J. 1. An agent is not ordinarily liable to third persons for mere nonfeasance. Kimbrough v. Boswell, 119 Ga. 210. An agent is, however, liable to third persons for misfeasance.[[113]] Nonfeasance is the total omission or failure of the agent to enter upon the performance of some distinct duty or undertaking which he has agreed with his principal to do. Misfeasance means the improper doing of an act which the agent might lawfully do; or, in other words, it is the performing of his duty to his principal in such a manner as to infringe upon the rights and privileges of third persons. Where an agent fails to use reasonable care or diligence in the performance of his duty, he will be personally responsible to a third person who is injured by such misfeasance. The agent’s liability in such cases is not based upon the ground of his agency, but upon the ground that he is a wrong-doer, and as such he is responsible for any injury he may cause. When once he enters upon the performance of his contract with his principal, and in doing so omits, or fails to take reasonable care in the commission of, some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf. See 2 Clark & Skyles on Agency, 1297 et seq. Misfeasance may involve also to some extent the idea of not doing; as where an agent engaged in the performance of his undertaking does not do something which it is his duty to do under the circumstances, or does not take that precaution or does not exercise that care which a due regard to the rights of others requires. All this is not doing, but it is not the not doing of that which is imposed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law as a responsible individual in common with all other members of society. It is the same not doing which constitutes actionable negligence in any relation. Mechem on Ag. § 572. As was said by Gray, C. J., in Obsorne v. Morgan, 130 Mass. 102 (39 Am. Rep. 439): “If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance or doing nothing, but it is misfeasance, doing improperly.” In that case the agent was held liable by the fall of a tackle-block and chains from an iron rail suspended from the ceiling of a room, which fell for the reason that the agent had suffered them to remain in such a manner and so unprotected that they fell upon and injured the plaintiff. In Bell v. Josselyn, 3 Gray, 309 (63 Am. Dec. 742), Metcalf, J., said: “Assuming that he was a mere agent, yet the injury for which this action was brought was not caused by his nonfeasance, but by his misfeasance. Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do.... The defendant’s omission to examine the state of the pipes, ... before causing the water to be let on, was a nonfeasance. But if he had not caused the water to be let on, that nonfeasance would not have injured the plaintiff.”