87 Iowa 488 | Iowa | 1893
— The presentation of the case in this court involves several complaints as to the, action of the district court, each of which will be noticed.
The criticism is without merit, because the instruction does not direct a recovery if the defendant either
There is some contention as to the removal, and in this respect the appellant contends that the section men only removed the steer from the cattle guard, and that the further removal was by the son of the owner, or at least not by the employees of the company; and there is testimony to the effect that when the steer was off the cattle guard the section boss said to William Wasson: “There is your steer. You can do what you please with him.’’ Neither Wasson nor any other person present was authorized to relieve the company of the responsibility for a proper removal of the steer. Conceding that it could have turned it over to the owner, and thus ended its responsibility for the proper care of it, it could not end its responsibility by turning it over to, or permitting those who were, in a legal sense, .strangers, to take charge of it for removal to .a proper place. If the section boss had, in terms, directed the .steer to be left where it was left, it seems to us no reasonable doubt could be entertained of the liability ■of. the company for resulting damage,. because the entire act would have been involved in that of removing it from the track, and the law would not permit it to be done in such a manner as to constitute a public nuisance. No more will the law permit the company to escape responsibility by permitting others to do, in ■any improper manner, what it should have done in a proper manner. All that was done was under the eye' of the employees of the company, upon whom devolved 'the duty of a proper removal and disposition, and all that was done was designed for that purpose. We may further say that, while the fact is much in doubt, there is testimony from which the jury could have found that the steer was placed in the highway by the direction of
It appears that Waller and his men were not employed on the particular section where the steer was found, and this point is urged as against their authority. It does, however, appear that it was their duty to clear the track of obstructions at that point, if known to themand such a duty would carry with it the obligations for a proper discharge of it as to the public; at least, so far as not to create a nuisance. No limitation of employment would be available to the company, as against such a rule. We are referred to several authorities sustaining the rule that, beyond the ¡scope of their employment, a master is not liable for the torts of his servants, and the rule is not to be questioned. In this connection the appellant quotes from Mali v. Lord, 39 N. Y. 381, as follows: “It can not be presumed that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself, if present.” Comment upon that case will serve to show a distinction •of this ease from tho'se cited. Emphasis is placed in argument upon the thought that the master will not be
These considerations dispose of the complaints as to the fifth instruction given by the court, and the refusal to give the fourth and fifth instructions asked.
From these conclusions the judgment should be APFIE.MED.