| Miss. | Oct 15, 1893
delivered the opinion of the court.
The rule of accountability of the muster for the wanton or malicious misconduct of his servant, declared in the first and third instructions given for the plaintiff beloAV, is erroneous. According to these instructions, no matter whether the person injured Avas a passenger or a trespasser, the railroad company was liable for the wilful misconduct of its servant; and no matter whether the act complained of was done in the discharge of the servant’s duty within the line of Ins employment, or whether he was accomplishing some private and personal design of his oavii wholly dissociated from his duty to his master. These instructions confound the duty of the common carrier to passengers with that to those not passengers — trespassers. The former it is under contractual duty to carry safely ; to the latter it OAves no other duty than
The rule announced in the case of Burke is applicable only in certain particular instances where the contract duty to safely carry exists. We have seen no authority for extending that rule to those whom the carrier is under no obligation to carry at 'all; and we have declared, in the ease of Royston v. Railroad Co., 67 Miss., that we would not extend it. As to trespassers, the rule is that for wanton and malicious injuries the master is liable where the act complained of was done by the servant in the discharge of his duty to, and within the line of his employment by, the master; but if he was accomplishing some purpose of his own, which had no connection with the discharge of his duty to his master, the doctrine of respondeat superior has no application.
To the trespasser on its trains, just as to the trespasser on its tracks, the railroad company owes precisely the same duty which it owes to all mankind; and this duty is exactly that which each man owes to every other, viz.; abstention from wanton, and wilful injury in the use of one’s own property. But is a railway company, unlike all other beings, unlike all other masters, to be held to accountability for the wanton and wilful misconduct of its servants, done outside the line of their employment and their duty, and in no way connected therewith, and that, too, to strangers, trespassers, it may be? Shall the railway company be made liable for such acts, done, perchance, by a disobedient servant, and in disregard of his duty to his master?
We adhere to the reasonable and just rule of affixing legal liability where the master is shown to be responsible for his servant’s act, done in the discharge of his duty, within the scope of his employment; and this rule is of force in the case at bar, where the carrier was under no contractual obligation to carry safely. Therefore, for the errors in the instruction named, the judgment of the court below is
Reversed, and the cause remanded for a new trial.