Habéis, J\,
delivered the opinion of the court.
Defendant in error brought his action in the Circuit Court of Madison county to recover of the plaintiffs in error damages for the alleged misconduct and negligence of their agent, in causing a collision of the cars on the side track of the Central Railroad, at Canton, thereby throwing defendant from a freight car on which he was standing, attending to the loading of some cars, lawfully on said track, and causing great bodily injury and pecuniary loss to defendant in error.
To this complaint the plaintiff in error filed a general denial, and there was issued thereon a verdict for the plaintiff below.
A motion was made for a new trial and refused, and bill of exceptions taken, in which all the testimony and all the instructions given and refused, or modified, are embraced, and the cause brought to this court by writ of error.
The errors relied on for reversal here, are, that the court erred in granting instructions for the plaintiff below; “ in refusing two of defendants’ instructionsin modifying defendants’ sixth instruction, and that the damages are excessive.
The arguments of counsel for plaintiff in error, furnish us the specific grounds of error on which they ask a reversal of this case, and the first is, that the court erred in instructing the jury that if they find for the plaintiff, they may give punitive damages, to operate by way of example, and to deter others from similar acts of violence and oppression, if any such acts were committed.
It is insisted, that while the railroad is liable to make compensation for the injuries committed by their agents in the transaction of the business of the company, that no adjudicated case can be found, nor a,ny well-considered dioimm produced, which will hold the principal responsible in vmdicbwe or exepipla/ry damages, for the misconduct of the agent, unless that misconduct was either approved or ratified by the princi[452]*452pal, or bad its origin, in some wrongful act or negligence of the pri/ncipal himself.
The zeal, ability, and ingenuity with which this point is pressed upon us, has induced us again to look into some of the authorities — elementary writers, as well as adjudicated cases in our own, as well as other courts — upon this subject, and we are constrained to say, that whether upon principle, or authority of adjudged cases, no general rule seems to be more firmly established, than that which holds that the principal is cwill/y responsible in damages for the acts of his agents, whether negligent or wilful, done in his employment, to the same extent as if the prmavpal himself were the actual wrong-doer. That there are many instances in which courts, yielding to the hardships of particular cases, have faltered in its application, affords no just grounds for disputing the validity of the rule itself.
To subject the maxims or fundamental principles of legal science to the test of judicial decisions, instead of bringing adjudged cases to the test of these principles, would unsettle the basis of our whole system of jurisprudence.
"What is the pri/nci/ple upon which this rule of damages is founded ? It is that the act of the agent is the act of the principal himself — qwifaoit per alAmn, faeit per'se — as expressed in the Roman law, and adopted into our law as a maxim. The original reason for this principle, both in the civil and common law, was, that the agent is but the instrument; that he who employs and confides in another, for his own benefit, must be the loser, rather than a stranger; that he, in effect, warrants the fidelity, good conduct, and skill of his agent in the business of his agency, and affords him the means of committing the injury; and therefore, on grounds of public policy, public convenience, and utility, as well as public safety, the law has established, to this extent, their legal unity and identity. Lord Holt says, in Coggs v. Bernard, 2 Ld. Raymond, 909, “ that it is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of-whose affairs obliges them to trust these sorts of persons.” Sir William Blackstone, in his Com[453]*453mentaries, volume 1, page 431, in concluding bis chapter “ Of Master and Servant,” on the subject of the liability of the master for the acts of bis servant, says, “ that the master may be frequently the loser by the trust reposed in Ms servant, but never can be a gainer; he may frequently be answerable for his servant’s misbehavior, but never ocm shelter himself from jotmishment by Ict/yi/ng the blame on his agent. The reason of this is still uniform and the same: that the wrong done by the servant is looked wpon m law as the wrong of the master himself ; and it is a standing maxim, that no man shall be allowed to take any advantage of his own wrong.” This legal unity of the principal and agent, in respect to the wrongful or tortious, as well as the rightful acts of the agent, done in the course of his employment, is an incident which the law has wisely attached to the relation, from its earliest history.
It is as thoroughly engrafted on the relation of principal and agent, and is an incident as inseparable from it in our law, as the rule that husband and wife are one person in law. They are both legal assumptions or fictions, and yet upon this principle, of the union in person of husband and wife, depend all the legal rights, duties, and disabilities that either of them acquire or incur 'by the marriage relation. Out of this same unity of person, established by law, arises the liability of the husband, jointly with his wife, for her tortious acts or misconduct during the existence of that relation. Just as well, therefore, might the husband claim exemption from his legal responsibility for the acts of the wife, upon the ground of his innocence, and inveigh against the cruelty and tyranny of courts for holding him to his legal duty and responsibility to third persons, arising from the voluntary creation of that relation, as can the plaintiffs in error in this case claim a like exemption. To transact their business by agents is an indulgence the law extends to the plaintiffs in error for their benefit, but subject to the responsibilities and incidents it has attached to the principal in that relation. "When, therefore, they contracted this relation, they voluntarily engaged with the public and third persons, that tWact of their agent in the course of their business, should be
[454]*454regarded as tbeir act in law, and they responsible accordingly. In Travis v. Claiborne, 5 Mnnf. R., page 435, Judge Roane says: “ Tlie reason why the acts of the agent are in many respects considered as the acts of the principal, arises from the relation between them; and as the liberty of acting by an agent is an indulgence to the principal, it is reasonable he should be bound by the acts of liis agent, done in pursuance of the authority given him. In such case the act of the agent is the act of the principal, and no action is imposed upon the latter, but by himself, through his agent, acting under his authority. No injury is done to third persons by this construction; they are in the same situation as if this indulgence had not been granted the principal, and he had been compellable personally to do the act.”
Mr. Holt in his Nisi Rrius R., pages 227, 229, has appended a very able note on this subject, cited with great approbation by Judge Story in his work on Agency, page 614, section 454. He says: “ The responsibility of the master for the acts of his servant has been extended by recent cases to a length beyond the ordinary course of practice, and which, unless the principle be duly understood, may appear contrary to reason and the principles of general equity. The question is of very general concern, and the cases rest upon some nice distinctions, which, however subtle and remote, are perfectly consonant with the principles of legal liability — a very different thing from moral criminality.”
The foundation of this branch of our law is avowedly in the maxim of the Roman code (4 Just, title 5), gui faeit goer alium, faeit per se, namely, that the agency of a servant is but an instrument; and that any man having authority over the actions of another, -who either expressly commands him to do an act, or puts him in a condition of which such an act is a result, or by the absence of a due care and control (either previously in the choice of his servant, or immediately in the act itself), negligently suffers him to do an injury, shall be responsible for the act of his servant, as if it were the aet of himself. All the cases rest upon the development of this principle.
“ In all such cases the term in the law books, £ general command] is equivalent to the words, general deputation, or vol/wrir [455]*455tary substitution of tlie servant for the master within the line of his particular employ, and, therefore, all the acts of the servant, within such particular line, are very properly regarded as the acts of the master.”
Judge Story, in treating of the liability of principals to third persons for the acts of their agents, gives the origin of tlie rule, thus: “ The whole doctrine turns upon the obvious maxim, that he who acts by another, acts himself,” quoting the maxim of the Roman law. lie says: “ It is a general doctrine of law, that although the principal is not ordinarily hable (for he sometimes is) in a criminal suit, for the acts or misdeeds of his agent, unless, indeed, he has authorized or cooperated in those acts or misdeeds; yet, he is held liable to third persons in a civil suit, for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty, of his agent in the course of his employment, although the principal did not authorize, or justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved them;” and for this he cites numerous authorities. “ In all such cases,” says he, “ the rule applies respondeat superior ; and it is founded upon public policy and convenience; for in no other way could there be any safety to third persons in their dealings, either directly with the principal, or indirectly with him through the instrumentality of agents.
“ In every such case, the principal holds out his agent as competent and fit to be trusted, and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency.”
In section 458, page 634, Judge Story, treating of the responsibility of owners and employers of ships, and of stable-keepers, by the Roman law, and the reason for it, says, “ they are responsible for the tort and fraud of their agents and servants, although they are not parties to it, quasi malifieio, as if they themselves were wrong-doers; because they have made use of the service of such bad agents and servants in their employment.” And yet he says that “ the Roman law does not seem to have recognized to the full extent the general maxim, respondeat superior, [456]*456inculcated by our law ” (section 460). lie further adds that the modern nations of continental Europe have adopted the doctrine of the Roman law on this subject to its full extent, and some of them, at least, seem to have carried it much further (section 461).
' In England, an attorney was held answerable for a trespass committed by his agent, in suing out an execution after payment by the judgment-debtor, though it was done without his knowledge, and upon the reason that “ the attorney and the agent are to Toe considered one 'person.'’'1 Per Abbot, C. J., in Bales v. Pillings, 6 B. & C., page 38.
If then the act of the agent be the act of the principal in law, and this legal identity is the foundation of the responsibility of the principal, there can be no escape from his indemnity to the full extent of civil responsibility, whether we regard it as the result of the technical rule, or on the broader basis of general propriety, utility, and convenience.
If the principal seeks the indulgence of using faithless agents for his own advantage, he must take it own onere ; subject to the rights of the public, to insist on this same legal identity, as though the principal had acted for himself. If he has delegated dangerous powers to unworthy agents, it is his fault, or his misfortune; and no matter which, he cannot be permitted to throw the one or the other upon those who are compelled by his act “ to trust these sorts of persons.”
It is urged that railroad colorations, having a large amount of business, can only act by agents, who are numerous; and “that some of them will prove negligent and abuse their trusts, is positively certain, for they are human,” and to hold their principal to this responsibility for their acts, would be to inflict punishment, not for his wrong, but because of his inability to do an impossible thing; that such a rule would wither all enterprise, deter capitalists, encourage speculative litigation, destructive alike to public morals and the commercial prosperity of the State.
If it be “ positively certain” that somebody must suffer from the wrongful acts or negligence of these employees, as is here urged, and that without the positive fault of their principals, [457]*457upon whom should tbe calamity fall — upon him who trusted tbe wrong-doer for bis own gain, or on tbe stranger? If idle capital in search of splendid investment, must do its work by agents, who “ it is positively eertmn” will prove negligent- or abuse their trust, upon what principle of legal right or ethical rule can it demand of the public to bear the wrongs and injuries it originates, or to change or modify the legal incidents annexed upon grounds of public policy and public safety, to the relation it has voluntarily assumed ? If in law their civil unity and identity with their agents, in all their acts done in the course of their agency, is a necessary incident of that relation, these corporations, which are never headless, are presumed to know it; and with a knowledge of its legal consequences, can they, with any claim of justice or right, ask to be absolved from the incidents which the law has attached to the relation of prinpal and agent, for the public safety, against the very evils arid dangers which it is here urged are inseparable from that relation? If they must introduce or engage in a business, in the prosecution of which the personal security and even the personal liberty of the citizen must or may be violated or invaded, they are aware of their responsibility, in presumption of law, and are, doubtless, paid accordingly. Is it, then, reasonable to demand that they shall rest in comfort and security in the enjoyment of the large profits they realize from the dangerous instrumentalities they set in motion while the public shall suffer, without adequate protection or redress, under the outrages, indignities, and insults inflicted by irresponsible, cheap agents, commissioned by them with the power and opportunity, if not the will, thus to act? Nay more — shall this be done because “ it is positively certain ” that some of their agents will prove negligent, and abuse their trust ?
We shall not attempt a review of the many and irreconcilable cases on this subject which are to be found in the books; this would require a volume; but we have only designed to show the origin and reason of the rule, and the principle by which these cases are to be tested. We are satisfied, that whether we consider the question upon strict technical, legal [458]*458rules, or upon the great principles of moral right and social duty which generally lie at their foundation, this cmil responsibility for the wrongful or wilful act of an agent in the course of his employment must rest upon the principal to the same extent as if he had committed the act himself; and to this extent, and resting on this foundation, are all the cases decided in this court.
It is next insisted, that the fifth and sixth instructions for plaintiff below are erroneous. These instructions are as follows:
“Fifth. If the jury believe from the evidence that the plaintiff was injured by defendants’ agents in the course of their employ, then the jury will have to be satisfied from the evidence that said agents were not only skilful and of good habits, but that they acted on the occasion with reasonable skill, and with the utmost prudence and caution ; and if the jury believe that the disaster was occasioned by the least negligence or want of skill or prudence on the part of the defendants or their agents, or either of them, then the law is for the plaintiff, and the jury will so find.
“ Sixth. If the jury believe from the evidence that the defendants are a railroad company, acting in their transportations by the dangerous and powerful agency of steam, public policy and safety require that they be held to the greatest possible care and diligence, and any negligence in such cases may well deserve the epithet of gross.”
It is not denied that the rule laid down in these instructions, as applicable to passengers, is correctly stated; but it is urged, that as to third persons, not passengers, or others, towards whom the company is under no special obligation of extreme diligence, the rule of law is, that the company is only responsible for injuries arising from the want of ordma/ry care and skill, and that this is the rule applicable in this case.
Mr. Pierce, in his work on American Railroad Law, states the rule as held by Mr. J. Willard, in Brand v. Schenectady and Troy R. R., 8 Barb., pages 368, 379 : “ The highest diligence is not to be exacted of any person, except when a compensation is paid for the service; or where the party injured is in the power, or under the control of the defendant, as in case of stage pas[459]*459sengers; or the party officiously obtrudes ” his services upon another, or is the sole party deriving a benefit from the act; or that the party occasioning the injury was in the wrong place, or engaged in an unlawful calling; but where both parties stand on an equality as to the means of avoiding the accident, and both are engaged in a lawful employment, only ordinary diligence will be required.
The rule as thus stated is not inconsistent with the general rule recognized by this court in the Jackson and Vicksburg Railroad Co. v. Patton, 31 Miss. R. 156, based upon the decisions of the Supreme Court of the United States in 13 and 14 Peters: “That where carriers undertake to carry passengers by the powerful and dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligenceand “ that persons having charge of instruments of great danger, are bound to manage them with the utmost care.” The decision of J. Willard, quoted by Mr. Pierce, was in the case of a foot passenger who was injured while walking on the track of a railroad in the streets of a city; and it was there held, that in the case of passengers, or when the party injured is in the power and under the control of the carrier, or when the party officiously obtrudes his services upon another, or is the sole party deriving benefit from the act; or when the party occasioning the injury was in the wrong place, or engaged in an unlawful calling; in all such cases the general rule exacting the utmost or highest diligence is applicable. But in the absence of such circumstances, “ when both parties stand on an equality as to the means of avoiding the accident, and both are engaged in a lawful employment, the strict rule of extreme diligence is not required of the carrier,” and this is the rule stated by this court, as applicable to the case of the Mississippi Central Railroad v. Miller, not yet reported, to which the general rule of extreme diligence is held inapplicable.
The case before us does not fall under the rule last stated, as is here urged by counsel for plaintiffs in error. This was not a case where both parties stood on an equality as to the meams [460]*460of molding the accident. For the defendant in error had no power to avoid the collision — he had no right to expect it — and no duty therefore devolved upon him. Fie had no right to suppose that the plaintiffs in error, either by negligence or design, would produce the collision. Plaintiffs in error had no right to occupy any portion of the siding, to the prejudice of defendant, but were there by courtesy, and 11 for their own benefit,” attempting to occupy a place not belonging to their company, and in the actual prior occupancy of one lawfully entitled thereto, by contract with the owners for a valuable consideration — a right in its nature exclusive. Of this actual occupation, under the circumstances, they were bound to take notice, at their peril. When leaving their own track, with a powerful and dangerous engine, to occupy a track belonging to others, it was their duty to know, and, if ignorant, to inform themselves, of its situation, whether occupied or not, so as to enable them to avoid all accidents. There was, therefore, no “ equality in the means of avoiding the accident ” — no equality in power— no equality in right — no equality in duty. The means, the power, and the duty of avoiding the accident all rested on the plaintiffs in error.
The act of the plaintiffs in error, which produced the collision, was an unlawful act, a trespass, and without necessity. Their “ courtesy ” only extended to the use of that track (as testified to by Frost, the superintendent of the Miss. Central R. R.), when nothing was in the way, and under this permissive use, they had no right to- infringe upon the lawful occupancy of defendant in error. They were “ the sole pa/rties to be benefited by the act,” and they alone were called upon, according to the circumstances in evidence, to exercise any diligence in avoiding the collision, and those circumstances demonstrate the necessity of the utmost caution and greatest diligence. The rule in relation to foot passengers walking on the track of a railroad, or others crossing railroads at the intersection of public highways, or in the streets of a city, with power of locomotion, and under a duty not to obstruct the passage of cars, can have no application to a case like this. In all such cases the party injured [461]*461voluntarily places himself in the way of the company’s right, and where they, are not only accustomed to run their engines, but of necessity must rum, them. But here the plaintiffs in error “ were in the wwng place,” having no right to occupy the place where defendant stood, having no necessity to run their engines where defendant’s cars were standing, and not accustomed to run them there when “ anything was in the wayf or when previously occupied.
The fifth and sixth instructions were therefore properly given.
The next error complained of is the ninth instruction given for plaintiff below, as follows:
“ Ninth. That it was not sufficient for the defendants to have given the usual warning; even if the jury should be satisfied that they did give the usual warning, yet if their agents, or either of them, did not give all the warning and use all the caution that the nature of plaintiff’s position, the time of night, and the locality required, the defendants are responsible in damages for all injury done to plaintiff, for want of such reasonable caution and warning that the nature of the case, time of night, and locality required.”
This instruction was certainly not to the prejudice of plaintiffs in error, for no warning that they could have given would have been sufficient, in a case like the present, to relieve them from responsibility for a collision; though the jury were left so to infer from this instruction. If the plaintiffs had given actual personal notice of their moving on this side track, or even further, that they untended to run their engine against the cars on which defendant was placing his cotton, it will scarcely be assumed that even this would have justified their act, or excused them from liability, or impose any legal duty on defendant in error. The blowing of their whistle, the ringing of their bell, the shouting of their agents, or the presence of their side-lights, or any other demonstration they could have made, could only have amounted to notice to the defendant in error that they were moving on the side track so far, and no farther, as they lawfully might, without prejudice to the defendant in error, and that with the utmost caution and prudence; and not that they [462]*462designed or expected a collision. The defendant in error could not, therefore, have been required to do anything. This permissive use was in subordination to the right of defendant in error. There was ample room for both. Defendant in error had no right, therefore, to expect, and was under no obligation to use any diligence to prevent, a collision, or any accident that might result from it; while plaintiffs in error were under every obligation to see that no one suffered injury by an act which was alone for their benefit, and of which no one in the situation of defendant in error could have been reasonably expected to take notice. Defendant in error was bound to do nothing, for he had no power to avoid the collision. Plaintiffs in error were bound to all care and diligence, because they had the power to prevent it; and the proof clearly shows they are without the shadow of excuse. The pretence’that their brakesmen and agents in charge of the engine, with only “ twenty pounds of steam,” “ moving very slowly,”couldnot with perfect care have controlled it, as set up by their guilty agent, Iiewston, in his deposition, is preposterous, and only affords additional proof of the unreliable character of this source of evidence.
Notwithstanding any warning or notice the plaintiffs in error might have given, they were bound to the utmost diligence, and there was nothing, therefore, to their prejudice in this instruction, which left it to the jury to say whether, under all the circumstances in evidence, the- plaintiffs in error had used the utmost diligence to avoid the collision.
~VVe think there was no error in the tenth instruction. Nor do we think there was any error in refusing the motion for anew trial.
Let the judgment be affirmed.