85 Miss. 426 | Miss. | 1904
delivered the opinion of the court, the majority opinion.
Considering the time, place, and circumstances under which the injury forming the basis of this suit was inflicted, we think the question of whether Watson, the employe of appellee, to whose negligence the injury is charged, was on that occasion acting outside the scope of his employment, should have been submitted to the consideration of the jury. The record demonstrates that the relation of master and servant existed between Watson and apj>ellee, and, this being established, the question of whether, in the particular instance,, the servant was acting within the scope of his employment, if there is no conflict in the facts, is a question of law for the court. If there is con
In the case at bar it was the servant’s duty to attend to the steam pump located on appellee’s line of railroad, and used in supplying water to locomotives of passing trains, and have it ready for operation whenever needed for this purpose. In connection with, and as a part of, this employment, it was the servant’s duty to provide the fuel consumed in generating the steam needed for the operation of the pump. Rut the manner, time, and place of gathering this fuel were submitted to his judgment without express directions from appellee. The servant was required to see that the needed fuel was provided, but the details of its gathering were left to the dictation of his pleasure and convenience. Ror his use in going to and from the pumping station, and for transporting fuel and kindling which he would gather along the right'of way, Watson was intrusted with the custody and power to use an engine or machine known in the record as a “railroad tricycle.” Upon this, in quest of fuel, he had the right to ride over the track of appellee’s line of railway, without let or hindrance, any distance and in any direction. On the morning in question, in the discharge of his duty, he took the tricycle and proceeded to the place where his duty called him — where the pump which he was to operate was situated. Rinding that it was necessary to procure fuel, he went further down the track in search of kindling or
We recognize the well-established exception to the general rule by which the master is excused from liability for the tortious act of the servant when committed outside the scope of the servant’s employment. That exception governs in all cases when the servant abandons his master’s service and engages in some purpose personal to himself. The principle is free of difficulty, and is adhered to in all proper cases, but it has no application to the facts in the instant case. Watson was no mere sentient tool, with no power to” exercise judgment or discretion as to the time or manner in which his duties should be performed. He was intrusted with the performance of a certain duty, but the details of his service were not regulated or prescribed by the instructions of any superior, but left solely to his own uncontrolled judgment. For the acts of such servants, the master is responsible unless it clearly appears that the wrongful acts were beyond and outside the scope of their employment and committed in the furtherance of their own per
In determining whether a particular act is committed by a servant within the scope of his employment, the decisive question is not whether the servant was acting in accordance with the instructions of the master, but, Was he at the time doing any act in furtherance of his master’s business ? If a servant, having completed his duty to his master, then proceeds to prosecute some private purpose of his own, the master is not liable; but if the servant, while engaged about his master’s business, merely deviates from the direct line of duty to .accomplish some personal end, the master’s responsibility may be suspended, but it is reestablished when the servant resumes his duty. Even if in violation of express orders, a deviation from is not an abandonment of the master’s service. Mulvehill v. Bates, 31 Minn., 366 (17 N. W., 959; 47 Am. St. Rep., 796); Rahn v. Singer Mfg. Co. (C. C.), 26 Fed. Rep., 912; Weber v. Lockman (Neb.), 92 N. W., 591 (60 L. R. A., 313); Sleath v. Wilson, 9 Carr. & Payne, 607; Ritchie v. Waller, supra; Williams v. Hochler, 41 App. Div., 426 (58 N. Y. Supp., 863); Quinn v. Power, 87 N. Y., 535 (41 Am. St. Rep., 392).
If the act which the servant was engaged in at the time of the injury was one which, if continued until its completion, would have furthered the master’s business and been within
In the instant case it was the duty of Watson to procure fuel. He was given control and custody of an appliance to be used for that purpose and in going to and from his work. On the occasion in question he went by the place where his duty called him, on an affair in no wise connected with the master’s business or his own service. That moment he deviated from his duty and from the scope of his employment. It must be noted that the service of the day in which the servant was then engaged — - the gathering of the fuel and operating of the pump — -had not been discharged when Watson deviated from his service. But the testimony of the servant himself shows that he had not abandoned his duty. He still intended to gather the fuel on his return from his own errand, and to regain his post of duty at the pump. It is conceded by counsel for appellant, so far as the discussion of this particular phase of the case is concerned, that, for any injuries which Watson might have inflicted between the time when he deviated from his service and when he resumed it, the master was not responsible. We express no opinion of this point;'but, even if it be true, the inquiry arises; When did Watson resume his service, so as to render his master liable ? His private affair was to carry a sick friend to -the station, but when that was completed and he began to propel the railroad tricycle back over the route which he had previously traveled, with the intention and for the purpose of proceeding to the discharge of the duty which he was employed to perform;
We hold, in cases where the servant has made a temporary departure from the service of the master, that when the object of that departure has been accomplished and the servant reengages in the discharge of his duty, the responsibility of the master instantly attaches. Any other conclusion would leave us without any definite rule, in cases of temporary abandonment of duty, to determine when the servant reentered the scope of his employment. This conclusion is not antagonistic to any express decision in this state or in Louisiana, where the injury happened. Speaking of the doctrine of the responsibility of the master for the torts of the servant, the supreme court of the latter state has said: “The law is simple. Masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed. Rev. Civ. Code, art. 2320.'” Odom v. Schmidt, 52 La. Ann., 2129 (28 South. Rep., 350).
In this state the exact question here presented has never been passed on. The cases cited by appellee are all based on the fact that the act complained of was one clearly beyond the scope of the servant’s employment. The final test to determine the master’s liability is thus stated in the case of Canton Co. v. Pool, 18 Miss., 157 (28 South. Rep., 824; 84 Am. St. Rep., 620): “Whether, from the nature of the act itself, as actually done,
The conclusion we have reached is supported by authority elsewhere. Thus in Chi. Con. Bottling Co. v. McGinnis, 86 Ill. App., 38, the master was held liable for injuries inflicted by the driver of his wagon, though the driver had temporarily departed from his employer’s service, and had deviated from the direct, route over which his duty required him to- pass, on an enterprise purely personal to himself — namely, to call on his wife — and the accident occurred after the completion of this personal mission, at a time when the servant had again assumed control of his master’s vehicle, but before he had actually again performed any act in the master’s service. Says the court: “It is contended, first, that when a servant, acting as driver of his master’s wagon, leaves the direct route of his business and goes upon some errand of his own, the master cannot be held to respond for negligence of the servant while upon such errand.”. And after discussing the other questions presented and stating the general rule governing the master’s liability as we have herein announced it, the court responds to the contention, saying: “We. are of the opinion that, applying the rules to the facts of this case, -it cannot be held that the driver of the appellant, when he again started on his business of delivering goods of' appellant, after having stopped upon an errand of his own, was not engaged in the master’s work, within the scope of his em.ployment.” So, in M., K. & T. Ry. Co. of Texas v. Edwards (Tex. Civ. App.), 67 S. W., 891, the facts were: A brakeman on the train of the appellant abandoned the master’s service on the train which he was assisting in operating, crossed the track on the opposite side of the train, and went on. an errand of his
• Under 'the facts of this case it was error in the court to charge, as a matter of law, that Watson was not acting within the scope of his employment when the injury was inflicted on appellant.
There is another theory developed by this record, which the appellant was entitled to have submitted to the consideration of the jury. It grows out of the well-established principle of law that a master who intrusts the custody and control of a dangerous appliance or agency to the management of a servant will not be permitted to avoid responsibility for injuries inflicted thereby on the plea that the servant, in the particular act complained of, was acting outside the scope of his employment. As stated in another connection in this opinion, we adhere to the general rule which exonerates the master from liability for the acts of the servant committed beyond the scope of his employment; but this rule is not of universal application (being itself but an exception to the general rule which primarily imputes liability to the master), nor is it antagonistic to the position here assumed. The servant is empowered by the master to discharge certain duties, and it is incumbent upon him to exercise the same care and attention which the law requires of the master; and if that care and attention be about the management and custody of dangerous appliances, the master cannot shift the responsibility connected with the custody of such instruments to the servant to whom they have been intrusted and escape liability therefor. This rule arises from the absolute duty which is owing to the public by those who employ in their business dangerous agencies or appliances, en
The absolute duty of the master, which cannot be delegated, in reference to the degree of care demanded in the custody, control, and operation of dangerous instrumentalities, applies not to those alone which are operated or propelled by the power
An attempt has been made, in a very few illogically reasoned cases, to draw a distinction between instrumentalities “dangerous in themselves” and those “dangerous by reason of improper use,” and confine the master’s liability to cases due to mismanagement of the former class alone. An analysis will show that the distinction is more imaginary than real, and too refined to be of any practical benefit as a method of determining legal responsibility. The argument has a degree of plausibility when limited to agencies inherently dangerous even when most carefully handled, such as dynamite and similar substances, as distinguished from those of like character, such as gasoline, naphtha, and the like — only dangerous when proper precautions are not observed; but the sophistry of the argument becomes apparent, and refutes itself, when we come to the consideration of dangerous engines, machinery, or appliances. No appliance is “dangerous of itself,” but practically every appliance may become “dangerous by improper use.” Neither a locomotive, pile driver, electric or cable car, automobile, threshing machine, or team and wagon is “dangerous of itself,” yet with practical unanimity the courts hold the master liable for damages caused thereby, even though the servant who has the sole custody and control thereof is at the time acting willfully, wantonly, and in disobedience to his master’s orders. And so, on .the other hand, an ax, a crowbar, a scythe, and similar implements in daily use, are equally as deadly when improperly used; but no court would hold a master liable for the tortious act of his servant on the ground alone that he had intrusted the custody of such appliance to the servant. No appliance when at rest is
It is, of course, impracticable, if not impossible, to state any general definition by which it may be decided with any degree of certainty what appliances or agencies do, and what do not, fall within tbe term “dangerous,” as employed by courts and text writers. The limit of human inventive genius has not yet been reached, and appliances are as variant as tbe uses to which they are devoted. And, again, something must depend on tbe circumstances attendant upon tbe use of tbe particular instrumentality in question. But we see no reason, justice, or legal principle in tbe distinction which would allow compensation for an injury inflicted by tbe misuse of a locomotive, electric car, or horse and wagon, and yet deny recovery, though tbe injury is to tbe same extent, and inflicted under similar circumstances, when caused by tbe mismanagement of a band car or railroad tricycle. While tbe propelling power differs in each instance cited, all are subject to human control, and all
The views we have -herein announced, and the principle on which the liability of the master is based, are clearly recognized by the supreme court of the United States in Railroad Co. v. Derby, supra. In summing up the whole matter, the court says: “The intrusting such a powerful and dangerous engine as a locomotive to one who will not submit to control is itself an act of negligence — the ‘ccuusa causans1 of the mischief-while the proximate cause, or the ipsa negligeniia which produces it, may truly be said in most cases to be disobedience of orders by the servant so intrusted. If such disobedience could be set up by a railroad company as a defense, when charged with negligence, the remedy of the injured party in most cases would be illusive, discipline would be relaxed, and the danger to the life and limb of the traveler greatly enhanced. Any relaxation of the stringent policy and principles of the law affecting such cases would be highly detrimental to the public safety. And these expressions apply with more striking force to the condition of affairs which would exist if railroad companies who intrust dangerous appliances to an untrustworthy servant were permitted to say that at the time of any alleged injury such servant was not acting within the scope of his employment. If this be the law, the recovery of all persons injured by the misuse of such appliances is largely dependent upon the veracity of the employe by whose negligence the injury is caused.
In the case at bar it is contended by the- appellee that inasmuch as the tricycle, by the running of which the injury was inflicted, was before the trial court, and by the trial judge examined and pronounced not to be a dangerous appliance, we should on this account accept this finding of fact by the trial judge as conclusive, and not disturb the judgment. The decision of facts is not within the province of the judge. "Whether or not the railroad tricycle, as propelled, and moving at the rate
It is not necessary, as the record is here presented, for us to discuss or decide the exact legal status of appellant at the time or the exact duty which appellee owed to appellant under the circumstances attending the injury, for the reason that a peremptory instruction was granted appellee, and appellant is entitled to have the testimony in his behalf accepted and considered as true. So treating it, the record shows that appellant 'was injured by the gross negligence of the employe of appellee, who, knowing appellant’s perilous situation, wantonly caused the injuries complained of. If this be true, contributory negligence would constitute no defense, and appellant, even though a trespasser, would nevertheless be entitled to recover.
Reversed and remanded.
delivered the following dissenting opinion:
The facts in this case are briefly these: The plaintiff, a farmer, living in the country, several miles from defendant’s line of railway, rode his horse from his farmhouse to the railway track, at a point between stations, hitched the animal near the track, and started on foot along the railway track, going westward to a town called “Delhi,” over three miles distant from the place where plaintiff left his horse.' One Watson was employed by the appellee railway company to pump water at a water station, a point on the west side of a stream called “Bayou Macon,” distant about a mile east of Delhi, and he was furnished with a railroad tricycle, with which to carry himself from his home, at Delhi, to the pumping station; and he was also permitted to use the tricycle -in gathering up chips with which to start the fire in the machinery which ran the pump. On the date of the accident resulting in plaintiff’s injuries, Watson left home in the morning, riding his tricycle, went to the
The true test as to whether an act is done by the servant Avithin the scope of the master’s business has been thrice recently stated with great care by this court. Those cases are: Railroad Co. v. Latham, 72 Miss., 32 (16 South. Rep., 757); Richberger v. Express Co., 73 Miss., 161 (18 South. Rep., 922; 31 L. R. A., 390; 55 Am. St. Rep., 522); Canton Cotton Warehouse Co. v. Pool, 78 Miss., 147 (28 South. Rep., 823; 84 Am. St. Rep., 823). This last case seems to me conclusive
In the case of Mulvehill v. Bates, 31 Minn., 364 (17 N. W., 959; 47 Am. St. Rep., 796), the servant drove an express wagon regularly for the master, picking up business on the streets. .On the day in question he had gone over to West St. Paul to deliver a trunk; then he went a block and a half in a direction away from his return route to St. Paul, and got a load of poles for himself, and was taking the poles home when he ran over the boy. The court say: “We understand from this that the horse and express wagon were intrusted generally to the driver, with authority to secure such business as he could, make his own contracts, and drive wherever it might be necessary to go in order either to receive or deliver any articles which he might be employed to transport. Had some one employed him to transport a load of poles, it seems to us that there would have been no doubt but that in going for them, and in conveying them to their destination, he would have been acting within the scope of his employment, for that was just the kind of business he was employed to perform, as much as transporting trunks or any other kind of property. . . . He was intrusted generally with
In the case of Rahn v. Singer Mfg. Co. (C. C.), 26 Fed. Rep., 912, Corbitt, the servant of the Singer Manufacturing Company, ran over the plaintiff in Franklin avenue, in the city of Minneapolis, at the time he had a Singer sewing machine in the wagon, which he was to sell upon commission, and was then engaged in trying to sell it. The case shows that Corbitt was employed to canvass and to sell such machines on terms to suit his own convenience, and had taken that trip to look after his own private business, but at the same time was pursuing the defendant’s business; and the court expressly held that the company would be liable if Corbitt thus “combined his own business with that of the defendant, and was using the team not exclusively for his own ends, but at the same time was pursuing the defendant’s business.” And the court added: “If Corbitt had been attending to his own business, and was returning home from a private business trip or a pleasure trip of his own, and was engaged in business outside of the range of his employment by the defendant, at the time the plaintiff was run over, then, although he was using the wagon at the time, which he used when engaged in the performance of the defend
In the case of Weber v. Lockman (Neb.), 92 N. W., 591 (60 L. R. A., 313), Weber, Sr., had a farm and a herd of cattle. As a part of his business, the cattle had to be driven ‘five or six miles from home and put in a pasture. His son proposed one Sunday morning to drive the cattle to pasture. Weber, Sr., objected because it was Sunday. The son, without the father’s knowledge, drove the cattle to pasture, and then made a detour in returning, about a mile, to visit some friends. On coming back home, after nightfall, the horse became frightened, ran away, and injured the plaintiff. The court said that the business of driving the Cattle to pasture was part of the master’s business, and the only question was whether it Was done at the right time, and that, inasmuch as the boy had been-engaged in the master’s business in taking the cattle to pasture, it was his duty, as part of the same business, to return the horse to his master’s stable. Note specially here that Whát the boy did on the outgoing trip was strictly part of the master’s business — carrying the cattle to pasture — and, as a matter of ’course, that -it was also part of his duty to the master to return the horse after executing the duty of taking the cattle to pasture. I repeat, what the servant did here, on the outgoing trip to Waverly, was no pait of the master’s business whatever; and, as a matter of course, in coming back he was returning, not from doing the master’s business, but from an independent journey of his own.
In the case of Sleath v. Wilson, 9 Carr. & Payne, 601 (38 Eng. Com. Law Rep., 249), the case was simply that the master
In .the case of Ritchie v. Waller, 63 Conn., 155 (28 Atl., 29; 27 L. R. A., 161; 38 Am. St. Rep., 361), the master had employed a. farm laborer to haul manure from a brewery to his farm. He went with him once, and showed him the usual route. Afterwards he directed the laborer to go and get manure, and Blackwell, the servant, with the wagon and horse of the de
In the case of Williams v. Koehler, 41 App. Div., 426 (58 N. Y. Supp., 863), the facts were: “The plaintiff, a boy seven years old, was standing at the edge of the sidewalk, by the side
In a late ease on this whole doctrine of deviation — the case of Quinn v. Power, 87 N. Y., 535 (41 Am. St. Rep., 392)— Finch, J. (one of the greatest judges New York has ever produced), makes the difference between deviation and departure perfectly plain. In that case the master’s business consisted in transporting persons and freight over the river on a ferryboat between Hudson and Athens. The plaintiff, who wanted to get on a canal boat standing out in midstream, was permitted by the servant managing the ferryboat to come on board at Athens, and was to be transferred to the canal boat, in midstream, as a matter of favor. In doing this a slight deviation from the usual track of the boat across the river was made, but the ferryboat at the time was transporting freight and passengers between Hudson and Athens. The court say: “At the most, it appears to us a case where the servant, while acting in the master’s business and within the scope of his employment, deviated from the line of duty to his master and disobeyed his instructions.” And on p. 540 of 87 N. Y. (41 Am. St. Rep., 392) added, citing certain cases: “These cases are useful to illustrate the idea that there may be a deviation from the serv
In the case of Geraty, 16 App. Div., 114 (44 N. Y. Supp., 659), the driver and helper of one of the defendant’s large trucks, which were employed in transporting and delivering ice from defendant’s storehouse to customers in the city, deviated from the usual route and stopped at a restaurant to get breakfast. The ice had been negligently loaded on the truck, and a block of ice fell off and injured the plaintiff. The court said: “The rule as laid down by the latest cases in the English courts is that a master is responsible for an injury resulting from the negligence of his servant while driving his cart, provided that the servant is at the time engaged in his master’s business, even though the accident happens in a place to which his master’s business did not call him. But if the journey upon which the
In the case of Chicago v. McGinnis, 86 Ill. App., 38, the facts were that the master’s business consisted in having goods delivered in the city by a wagon owned by the master, and that the servant, while engaged in delivering appellant’s goods, deviated slightly from the regular route to call upon his wife, and .that, after leaving the house of his wife, he was again proceeding upon his master’s business, when a boy, who had climbed upon the steps of the wagon, was injured. It further appears that the place where the driver stopped to see his wife was within the territory within which he delivered the goods of appellant; and what did the court say at p. 41 of 86 Ill. App. ? Simply this: “We are of the opinion that, applying the
In the case of Missouri, etc., Ry. Co. v. Edwards, 67 S. W., 891, we have a case not decided by the supreme court of Texas, but by one of its courts of civil appeals — an inferior appellate court. There a brakeman of appellant, while the train was standing still, went to a saloon or restaurant at one side of the train, and, while hurriedly returning to board the train, then just moving away, ran against and injured appellee. The court said nothing, except that, while he might not have been on his master’s business in stepping aside to the saloon or restaurant, he was when returning to resume his accustomed place of service. The case is not reasoned out, and not a single authority is cited, and it is the judgment of an inferior tribunal. ■ It may be barely possible to sustain the case on the theory that the servant was in the service of the master in attending to his business about the car, and had simply deviated from that service in going into the saloon or restaurant to get, it may be, some necessary meal. If this be not the true explanation of the case, then I do not hesitate to say that the decision is unsound.
In the case of Pittsburg, Cincinnati, etc.,. Ry. Co. v. Kirk, 102 Ind., 399 (1 N. E., 849; 52 Am. St. Rep., 675), it was the duty of one Cronin, in charge of a hand car, to meet his crew each morning at seven o’clock, and proceed on the car with men and tools along the line of his section, direct necessary-repairs, and return in like manner to the tool house, at the depot, at six o’clock r.m. On the evening of the accident, after
I have thus gone, case by case, over each of the authorities cited in support of the proposition that what the servant did in this case, in going away from the place where the chips were, to a distance of three miles, to the town of Waverly, and in returning therefrom, was work done in the master’s business, and not a total departure from the master’s business, or, to put it more strongly for appellant, was a mere case of deviation in the master’s business, and not a case of total departure therefrom. If now one will specially note that in every one of these cases, with the possible exception of the case from the court of
Secondly, was tbe instrument — the railroad tricycle — a dangerous instrument, within tbe meaning of tbe rule of law on that subject? Undoubtedly there is a class of instrumentalities or appliances or agencies which are dangerous in themselves-— inherently dangerous — concerning which two duties are imposed by law upon tbe servants of tbe master who have tbe custody of such instrumentalities or agencies. These two duties are, first, tbe duty of proper use of such agencies; and, second, tbe proper custody of such agencies. If one is injured either by tbe improper use of tbe agencies or by tbe agency itself, such injury resulting from careless custody, in either case the master is liable. In all tbe books and decisions tbe line of demarcation between such agencies and instrumentalities as are inherently dangerous and those which are not inherently dan
The distinction which I have adverted to is clearly drawn in the two following cases: In the first, cited by the majority— Pittsburg v. Shields, 24 N. E., 658, at p. 660 (8 L. R. A., 464, at p. 467; 21 Am. St. Rep., 840)—the court say, speaking of a hatchet: “A hatchet is not an instrument of danger, within the rule above stated. It includes only such instruments as are such within themselves. The danger of a hatchet is in the hand and the spirit of the man who may use it. If in this case the instrument left on the track had been a hatchet, the company would not have been liable to a child who might after-wards have picked it up and been injured by it; for the company would have been under no such duty as to its custody as it was under in regard to this dangerous explosive.” In the case of Loop v. Litchfield, 42 N. Y., 358, 359 (1 Am. St. Rep., 513), treating the distinction I have above set out, the court say: “The appellants recognize the principle of this decision, and seek to bring their case within it by asserting that the fly wheel in question was a dangerous instrument. Poison is a dangerous substance. Gunpowder is the same. A torpedo is a dangerous instrument, as is a spring gun, a loaded rifle, or the like. They are instruments and articles in their nature calculated to do injury to mankind, and generally intended to accomplish that purpose. They are essentially and in their elements instruments of danger. Not so, however, an iron wheel, a few feet in diameter and a few inches in thickness, although one part may be weaker than another. If the article is abused by too long use or by applying too much weight or speed, an injury may occur, as it may from an ordinary carriage wheel, a wagon axle, or the common chair in which we sit. There is scarcely an object in art or nature from which an injury may not occifr
In the case at bar it seems perfectly clear to me that the injuries sustained by appellant were not due to any inherent danger in. the tricycle, within the rule of law on that subject, but exclusively to the negligent use of the tricycle by Watson. It is impossible for me to understand how there could be any inherent danger in this tricycle. It does not, I hold, come within .the rule applicable to dangerous agencies. The whole trouble here is not that the tricycle, because of any inherent dangerousness within itself, injured appellant, but simply and merely that this man Watson recklessly and willfully ran over the appellant with the tricycle. It is a case, therefore, on the second branch of the argument, of nothing else than the mere reckless and negligent use of an instrument in itself naturally harmless. The numerous cases where persons have been injured by carriages, vehicles of various kinds, mowing machines, and things of that sort, axes, hatchets, and the like, are all seen to be, when properly classified, cases where the injury was due merely to the negligent use of the particular thing, not to any inherent danger in the thing itself. In other words, we may say, broadly and distinguishingly, that the difference is between explosives and the like, as gunpowder, dynamite, torpedoes, electricity, etc., and other things. In the former the injury is due directly to the inherently dangerous character of the agency; in the latter, exclusively to the negligent use of the thing by some person — the thing being in itself not dangerous. A railroad tricycle is, in my judgment, plainly in the latter class.
I do not often dissent, making it a rule of my judicial life