Faircloth, C. J.:
When the plaintiff’s intestate purchased his ticket at Petersburg and had his baggage checked to Garysburg, the contract for their safe delivery at the latter place was complete. The passenger’s exit from the train at Bellfield discharged the contract as to him as a passenger, and we have only to consider the duties and liabilities of the parties as to the baggage, consisting of two trunks. The contract as to the baggage, however, continued to the point of delivery and until the delivery was made.
Common carriers are insurers, subject to a few reasonable exceptions. They are held to exercise the greatest practicable care, the highest degree of prudence,, and the utmost human skill and foresight which has been demonstrated by experience to be practicable. They are so held opon the grounds of public policy, reason and safety to their pat[603]*603rons. Tbe exceptions are tbe act of God and tbe public enemy. If these be the proximate cause, and without any neglect on tbe part of tbe carrier, then be is not liable in damages. BLe is, against all perils, bound to do his utmost to protect against loss or damage and must use.efforts proportioned to the emergency to ward it off. If he fails to do so be remains liable, although the act of God may have been the immediate cause of the mischief.
Passengers are entitled to protection from the carrier’s agent against assaults or insults from their own employees, from other passengers or persons on the train whether such persons are rightfully on the train or not. The reason of the above rigid rules is that the passenger and his baggage, during the transit, are in the possession of and under the immediate supervision and control of the carrier’s agents, such as the conductor and baggage master, and hence the difference in degree of the liability of the defendant, as a carrier and as a warehouseman. We have not undertaken to cite the authors and decisions on the above questions. They are numerous and are collected in 16 Am. & Eng. Enc. of Law, on page 387.
The contract was to deliver the baggage at the terminal point and it continues until the delivery is made. The transfer of the baggage from the train to the warehouse did not terminate the contract, but affected only the degree of care required in the two positions. The reason for the strict rule to be observed by the carrier as such, already pointed out, does not, in the nature of the circumstances, apply to him as a warehouseman, as the baggage could not be at all times under his immediate observation. In the latter capacity the defendant was only required to exercise ordinary care whilst the goods remained in his custody. Example: In Neal v. Railroad, 8 Jones, 482, it was held that goods in an ordinary wooden house [604]*604at the station, fastened with iron locks and bars, the agent residing 200 yards from the warehouse, was ordinary care, and the railroad was not liable for the loss of the goods by theft. If the passenger does not claim his baggage within, a reasonable time after arrival at its destination, the carrier becomes a mere bailee. Under this modified obligation of bailee or warehouseman, he is bound to exercise ordinary care in keeping the baggage until called for or disposed of in some legal way. This modified obligation of the carrier is not an independent one, arising from the accidental circumstance of the baggage being left on his hands, but is imposed by the contract of carriage, and rests upon the carrier with whom the contract was made. It is not suggested, however, that the trunks were not properly cared for in this case. The defendant was not a gratuitous bailee, as he had the right to charge for storage and did charge and collect it.
On application the plaintiff’s intestate had received one trunk when he was informed of the storage charge (the other trunk not being yet delivered) when he became angry and, whilst the agent was writing and delivering the receipt and receiving the money, he severely abused the agent in his office, and, receiving his receipt and change, started out of the office and was about the door whe.n the agent picked up his gun and shot him in the back of the neck, when he fell out on the door steps and soon died from the shock.
A patron of the defendant, whilst in his warehouse on business connected with the road, is entitled, from defendant’s agent, to protection against assaults or insults from any one. The language of the deceased to the agent was rude and wrong, for which the agent had a right to expel him from the premises by using such force as was necessary and no more. The offensive language of [605]*605the deceased, however, did not justify or excuse the violence of the agent, and, if his violent act -was done within the scope of his employment or line of .duty, then his employer, the defendant, is liable in damages for the injury complained of by reason of the original contract and the act of the agent whilst so engaged. "Was the agent’s act in the course of his employment and whilst about the master’s business? No decisive test can be given, but in all cases the question whether the act was committed by the servant in the service of his employer, or for his own purpose, is one for the jury, in view of all the circumstances. Wood on Master & Servant, 594; Hussey v. Railroad, 98 N. C., 34. In this case, that question was submitted to the jury in the charge of the court and by their verdict the fact, that the agent was acting within the line of his employer’s business is settled in the affirmative.
The full briefs of counsel and their able argument on each side, assisted the Court greatly in the consideration of this case. We do not find it necessary to refer to their numerous citations, but will do so as to some of them. Jones v. Glass, 13 Ired., 305, relied upon by the defendant, was the case of an overseer engaged in his employer’s business. In the exercise of his proper duties he used excessive force and seriously injured the slave and his employer was held liable. The quotation from the opinion on page 308 was that the driver left the track and ran over a man, and the master was held not liable, because the driver was not doing the business his master had put him about. No authority is cited and without controverting that statement it is sufficient to say that according to the verdict, the agent in the present case was in the line of his duty.
Wesson v. Railroad, 4 Jones, 379. Here the defendant had let out the building of the road to contractors, who, [606]*606whilst so working, committed a trespass on adjacent lands without the knowledge of the defendant. The court said a master is no.t liable for the wilful trespass of a servant. H,e is liable in an “action on the case” for an injury caused by the negligence or unskillfulness of a servant while doing his business, but not in an action of trespass vi et armis. Rut there is another ground to support that conclusion, to-wit, that a contractor is not a servant proper. His is an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. He is not subject to the orders of the other contracting party in respect to the details of the work, but is only bound to do the specific work according to an agreed plan. Baron Rolfe in Reedie v. Railroad Co.,
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Faircloth, C. J.:
When the plaintiff’s intestate purchased his ticket at Petersburg and had his baggage checked to Garysburg, the contract for their safe delivery at the latter place was complete. The passenger’s exit from the train at Bellfield discharged the contract as to him as a passenger, and we have only to consider the duties and liabilities of the parties as to the baggage, consisting of two trunks. The contract as to the baggage, however, continued to the point of delivery and until the delivery was made.
Common carriers are insurers, subject to a few reasonable exceptions. They are held to exercise the greatest practicable care, the highest degree of prudence,, and the utmost human skill and foresight which has been demonstrated by experience to be practicable. They are so held opon the grounds of public policy, reason and safety to their pat[603]*603rons. Tbe exceptions are tbe act of God and tbe public enemy. If these be the proximate cause, and without any neglect on tbe part of tbe carrier, then be is not liable in damages. BLe is, against all perils, bound to do his utmost to protect against loss or damage and must use.efforts proportioned to the emergency to ward it off. If he fails to do so be remains liable, although the act of God may have been the immediate cause of the mischief.
Passengers are entitled to protection from the carrier’s agent against assaults or insults from their own employees, from other passengers or persons on the train whether such persons are rightfully on the train or not. The reason of the above rigid rules is that the passenger and his baggage, during the transit, are in the possession of and under the immediate supervision and control of the carrier’s agents, such as the conductor and baggage master, and hence the difference in degree of the liability of the defendant, as a carrier and as a warehouseman. We have not undertaken to cite the authors and decisions on the above questions. They are numerous and are collected in 16 Am. & Eng. Enc. of Law, on page 387.
The contract was to deliver the baggage at the terminal point and it continues until the delivery is made. The transfer of the baggage from the train to the warehouse did not terminate the contract, but affected only the degree of care required in the two positions. The reason for the strict rule to be observed by the carrier as such, already pointed out, does not, in the nature of the circumstances, apply to him as a warehouseman, as the baggage could not be at all times under his immediate observation. In the latter capacity the defendant was only required to exercise ordinary care whilst the goods remained in his custody. Example: In Neal v. Railroad, 8 Jones, 482, it was held that goods in an ordinary wooden house [604]*604at the station, fastened with iron locks and bars, the agent residing 200 yards from the warehouse, was ordinary care, and the railroad was not liable for the loss of the goods by theft. If the passenger does not claim his baggage within, a reasonable time after arrival at its destination, the carrier becomes a mere bailee. Under this modified obligation of bailee or warehouseman, he is bound to exercise ordinary care in keeping the baggage until called for or disposed of in some legal way. This modified obligation of the carrier is not an independent one, arising from the accidental circumstance of the baggage being left on his hands, but is imposed by the contract of carriage, and rests upon the carrier with whom the contract was made. It is not suggested, however, that the trunks were not properly cared for in this case. The defendant was not a gratuitous bailee, as he had the right to charge for storage and did charge and collect it.
On application the plaintiff’s intestate had received one trunk when he was informed of the storage charge (the other trunk not being yet delivered) when he became angry and, whilst the agent was writing and delivering the receipt and receiving the money, he severely abused the agent in his office, and, receiving his receipt and change, started out of the office and was about the door whe.n the agent picked up his gun and shot him in the back of the neck, when he fell out on the door steps and soon died from the shock.
A patron of the defendant, whilst in his warehouse on business connected with the road, is entitled, from defendant’s agent, to protection against assaults or insults from any one. The language of the deceased to the agent was rude and wrong, for which the agent had a right to expel him from the premises by using such force as was necessary and no more. The offensive language of [605]*605the deceased, however, did not justify or excuse the violence of the agent, and, if his violent act -was done within the scope of his employment or line of .duty, then his employer, the defendant, is liable in damages for the injury complained of by reason of the original contract and the act of the agent whilst so engaged. "Was the agent’s act in the course of his employment and whilst about the master’s business? No decisive test can be given, but in all cases the question whether the act was committed by the servant in the service of his employer, or for his own purpose, is one for the jury, in view of all the circumstances. Wood on Master & Servant, 594; Hussey v. Railroad, 98 N. C., 34. In this case, that question was submitted to the jury in the charge of the court and by their verdict the fact, that the agent was acting within the line of his employer’s business is settled in the affirmative.
The full briefs of counsel and their able argument on each side, assisted the Court greatly in the consideration of this case. We do not find it necessary to refer to their numerous citations, but will do so as to some of them. Jones v. Glass, 13 Ired., 305, relied upon by the defendant, was the case of an overseer engaged in his employer’s business. In the exercise of his proper duties he used excessive force and seriously injured the slave and his employer was held liable. The quotation from the opinion on page 308 was that the driver left the track and ran over a man, and the master was held not liable, because the driver was not doing the business his master had put him about. No authority is cited and without controverting that statement it is sufficient to say that according to the verdict, the agent in the present case was in the line of his duty.
Wesson v. Railroad, 4 Jones, 379. Here the defendant had let out the building of the road to contractors, who, [606]*606whilst so working, committed a trespass on adjacent lands without the knowledge of the defendant. The court said a master is no.t liable for the wilful trespass of a servant. H,e is liable in an “action on the case” for an injury caused by the negligence or unskillfulness of a servant while doing his business, but not in an action of trespass vi et armis. Rut there is another ground to support that conclusion, to-wit, that a contractor is not a servant proper. His is an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. He is not subject to the orders of the other contracting party in respect to the details of the work, but is only bound to do the specific work according to an agreed plan. Baron Rolfe in Reedie v. Railroad Co., 4 Exch., 244, said “But neither the principle of the rule (of Master and Servant) nor the rule itself can apply to a ease when the party sought to be charged does not stand in the character of employer to the party by whose negligent act the injury has been occasioned.”
Hussey v. Railroad, 98 N. C., 34, was an action for slander by defendant’s general superintendent and came to this Court upon demurrer. This Court overruled the demurrer and sent the case back for such action as the defendant might be advised.
The first five prayers for instruction by the defendant were in substance that there was no evidence that the agent was acting in the line of his duty to his employer, or that if they believed the evidence they should answer the first issue “No.” These prayers assumed the very questiofi which the jury had to consider and that was properly left to the jury. The last prayer is answered in .another part of this opinion.
We think the charge of the court presented the case to [607]*607the jury fully as favorably as the defendant c-ould ask. The exceptions to the charge were that the court refused to give the prayers to the jury. We think the court gave the defendant’s prayers, as far as was proper, to the jury, and the exceptions are overruled. "Whilst the abusive language of the deceased would have justified his expulsion by necessary force, it could not extenuate such excessive violence on the part of the agent.
The burden of proving and making out a case, at least presumptively, was upon the plaintiff throughout the trial, but when the killing is admitted, then the burden of showing extenuating circumstances, by a preponderance of evidence, was upon the defendant. That was a material part of his defence, and the jury was so instructed. State v. Willis, 68 N. C., 26; Joses v. Railroad, 142 U. S., 17.
After mature consideration of this case, by reason of its importance, we are unable to see any error in the trial below.
Affirmed.