| Ill. App. Ct. | Jan 21, 1902
delivered the opinion of the court.
It is not claimed by appellee’s counsel, and in view of the evidence can not be claimed, that the brakeman, O’Brien, had express authority to remove trespassers from the train, but counsel claim that the brakeman’s authority so to do was within the scope of his employment as brakeman, and that the jury were warranted in so finding, and cites decisions of other States to that effect. But, whatever may be the law in other States, we think it conclusively settled in this State, that such authority can not be assumed to be possessed by a brakeman, and that in the absence of proof, it can not be inferred or implied from the nature of his employment. Ill. Cen. R. R. Co. v. King, 179 Ill. 91" date_filed="1899-04-17" court="Ill." case_name="Illinois Central Railroad v. King">179 Ill. 91; C., R. I. & P. Ry. Co. v. Brackman, 78 Ill. App. 141" date_filed="1898-09-26" court="Ill. App. Ct." case_name="Chicago R. I. & P. Ry. Co. v. Brackman">78 Ill. App. 141.
In the first of the cases cited, a trespasser on a freight train was injured by the willful and apparent malicious conduct of a brakeman in pulling him from the train. The following instruction was given by the trial court:
“ The court instructs you that if you believe, from the evidence, that the injury complained of was wantonly and willfully inflicted, as charged in the declaration, then the plaintiff will be entitled to recover, although you may believe, from the evidence, that plaintiff was guilty of some negligence.”
Commenting on this instruction, the court say:
“ This instruction is objected to because it purported to state to the jury the conditions under which plaintiff would be entitled to recover and under which they should return a verdict for him, and omitted the requirement of proof that the brakeman was acting within the line of his duty or within the scope of his employment. The law can not assume, at least as to a subordinate employe on a train, who is not intrusted with the general management and control of it, that he has control over passengers or persons attempting to ride, or that he is intrusted by his employer with authority in respect to them or to eject them, and it was necessary to make the proof. (3 Elliott on Railroads, Sec. 1255; Farber v. Missouri Pacific Railroad Co., 116 Mo. 81" date_filed="1893-05-16" court="Mo." case_name="Farber v. Missouri Pacific Railway Co.">116 Mo. 81; Corcoran, v. Concord and M. Railroad Co., 56 Fed. Rep. 1014.)”
” The authorities cited by the court fully sustain the text of the opinion.
¡Numerous authorities are cited by appellant’s counsel in line with the opinion of the Supreme Court quoted supra, to which we think it unnecessary to refer. The case in 78 Ill. App., cited supra, is similar to the present, and directly in point. O’Brien not having been expressly authorized to remove trespassers from the train, and this not having been within the scope of his employment as brakeman, neither the operating railway company nor appellant is liable for his acts in the premises. For what one does not, either himself or by another, he is not responsible. Decisions in cases of assaults by railway employes on passengers riding on passenger trains have no application to such case as the present. 2 Wood on Railroads, 2d Ed., by Minor, Sec. 316; C. & E. R. R. Co. v. Flexman, 103 Ill. 550, 551.
We do not find it necessary to pass on the contention of appellant’s counsel that if there is any liability of either railroad company, the Louisville, ¡New Albany & Chicago Railway Company is solely liable. Authority of O’Brien to remove appellee from the train being an element essential to recovery, and there being no evidence tending to prove such authority, but, on the contrary, the evidence being that he had no such authority, it was error to submit the cause to the jury.
The judgment will be reversed.