74 Neb. 1 | Neb. | 1905
The plaintiff, defendant in error, obtained a judgment in the court below for damages for personal injuries alleged to have been sustained by reason of the negligence of the servant of the defendant railway company, plaintiff in error, and it is sought by this action to secure a reversal of such judgment. The action is grounded on alleged negligence of the conductor of the defendant company while ejecting the plaintiff, a boy about 16 years of age, who was a trespasser on a moving freight train, and in so doing, as is alleged, throwing the plaintiff under the wheel of one of the cars, thereby causing the crushing of one of his lower limbs near the ankle, rendering amputation necessary. It is contended here on the part of the defendant that the judgment cannot be upheld, for the reason that the petition states no cause of action against the defendant, and that under the pleadings the defendant was entitled to a judgment in the court below. It is further contended that under the evidence the company is not liable to the plaintiff for the injury received by him; the conductor’s interference, if any, being, as contended for, not for the purpose of putting the plaintiff off the train or of resisting his attempt to board the train, and therefore it was not within the scope of the conductor’s employment, and hence the company is not legally liable therefor.
The reply is a general denial.
1. With reference to the contention that the petition does not state a cause of action, it occurs to us that both parties to the controversy have at all times during the progress of the trial in the lower court regarded the pleading as sufficient. The defendant company has given the petition such a construction as required it to answer and defend in the action, and it would seem that this court ought not now to construe the petition as not stating a cause of action unless, under a liberal construction of all of its allegations, aided, if it is, by the allegations of the answer, with the view of sustaining it if possible, the conclusion is irresistible that it is defective in substance, and that no cause of action against the defendant has been
“The petition was not assailed in the trial court, and the rule is that it should, now receive a liberal construction with the view of giving effect to the pleader’s purpose.”
Counsel’s argument directed to the alleged failure of the petition to state a cause of action is predicated on the averments found therein, wherein it is stated: “The plaintiff heard the said order of said conductor, and, intending to obey it in all respects, proceeded at once to alight from
We may also in this connection call attention to another rule of construction having a direct bearing on the question now being considered. Conceding that the petition is imperfect and ambiguous as to the situation of the parties when the assault is alleged to have been committed, the defendant by its answer has aided a defective petition and supplied the imperfection, so that the two pleadings, when construed in the light of each other, unmistakably, we think, justify the inference that the injury occurred before the plaintiff had disengaged himself from the train, and Avhile he was in the act of so doing, either by his own action, or the action of the conductor, which is alleged as a basis of recovery. In view of the averments of the answer, the conductor was manifestly acting in the strict line of
2. Can the judgment be upheld and the plaintiff recover under the evidence? In respect of this question it is insisted that by plaintiff’s OAvn statement, assuming the truth of all that is said, it is conclusively established as a fact that the assault which it is alleged Avas committed by the conductor was not in the performance of any duty which he OAved to the company, and was not an act for which the company is responsible. Counsel, in their briefs, say that it is fully admitted that, if the conductor had made the assault for the purpose of putting the plain
This evidence, drawn out on cross-examination, the substance of which we have given, is especially relied on to establish the essential fact contended for, to wit, that the conductor’s assault was not within the scope of his duties, since it was neither for the purpose of putting the plaintiff off the train, nor for the purpose of preventing him from getting on the train. The record does not necessarily establish the fact contended for, nor are we to be governed solely by the statements of the witness as testified to on cross-examination, especially so, where, in order to ascertain the real and exact situation, reference must be had to his testimony preceding, as well as that which follows. It is from all that is said and testified to by him, reconciling all parts, Avherever possible, that we may ascertain the truth of the matter in controversy. When so considered, Ave think the fair inference is that as the plaintiff was removing himself from under the car where he was riding, and after he had alighted on the ground in a position not altogether upright, but approximately so, and before he had freed himself from the train, and while his hands were
The fact that the plaintiff was not at the time trying to again board the train, or intending to do so, cannot materially affect the situation, or alter the rights, duties and liabilities of the respective parties. Such might be material, had the plaintiff entirely removed himself from the train and right of way, and for the time being ceased to be a trespasser, but he had not done this. He was still trespassing. He was yet hold of the car on which he had been riding. The act of removing himself from the train had not been completed. The act of the conductor, assuming the plaintiff’s theory to be correct, was but one of a series of continuing acts set in motion with the view of ejecting the plaintiff from the train — a place where he had no business to be — and until the act had been fully completed, and the purpose for which the different acts were set in motion accomplished, the conductor was, as it seems to us, manifestly acting within the scope of
The general rule is that a master is liable for injuries to third persons arising from the negligence of his servant AAdiile in the lawful and authorized employment of the master. Toledo, W. & W. R. Co. v. Harmon, 47 Ill., 298; Gray v. Portland Bank, 3 Mass. 363; Gass v. Coblens, 43 Mo. 377; Harriss v. Mabry, 23 N. Car. 240. The authorities say a master is liable for the acts of his servant within the general scope of his employment AAdiile about his master’s business, though the act be negligent, Avanton, wilful, or malicious, and this is so though the act complained of has been expressly forbidden by the master. 4 Cur. Law, p. 608, and authorities cited. See also Burns v. Glens Falls, S. H. & Ft. E. St. R. Co., 38 N. Y. Supp. 856; Craker v. Chicago & N W. R. Co., 36 Wis. 657, and Cohen v. Dry Dock E. B. & B. R. Co., 69 N. Y. 170. In the last case cited, in the opinion it is said:
“A master is liable for the wrongful act of his servant, to the injury of a third person, where the servant is engaged at the time in doing his master’s business, and is acting within the general scope of his authority, although he is reckless in the performance of his duty, or through*15 lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances, goes beyond the strict line of his duty, and inflicts unnecessary and unjustifiable injury.”
On the other hand it is said: A master is not liable for a malicious or wanton act of a servant done outside of his employment, Avithout regard to his services, and in order to effect some purpose of his oavu. Mott v. Consumers’ Ice Co., 73 N. Y. 543. In this same case, however, it is declared that “for the acts of a servant Avithin the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interests, the master is responsible, whether the act be done negligently, wantonly, or even wilfully.”
Tested "by the principle deducible from these authorities, there seems little room to doubt that the acts of the conductor alleged in the petition, and as testified to by the plaintiff, and for which the company is sought to be held responsible, if believed by the jury, were within the general scope of the employment of the servant, were committed Avhile he was engaged in his master’s business, and Avith a vícav to the furtherance of the business and interests of the master. This court in an early case has recognized and given expression to the rule adverted to, Avherein it is held that a corporation is liab’e for acts committed in the course of the agent’s employment, or in connection with the transaction of the business of the corporation. Miller v. Burlington & M. R. R. Co., 3 Neb. 219. A case well in point is Hamilton v. Chicago, M. & St. P. R. Co., 119 Ia. 650, 93 N. W. 594. There a conductor in ejecting a trespasser from the train, after he had climbed thereon the second or third time, seized him by the collar, slapped and beat him Avith his hand, then stopped the train and put the trespasser off. It is held that the beating administered by the conductor was within the line of his employment, and that the master was liable, In the opinion it is said;
*16 “There is no question that if, in removing plaintiff as a trespasser, the defendant’s conductor, who was charged with the duty of removing trespassers from the train, caused him to suffer personal injury by reason of attempting to put him off at a dangerous place or by using unreasonable and unnecessary violence, the defendant would be liable for his acts, even though they were wanton, wilful, malicious, and unlawful.” Citing a number of authorities. “This proposition,” continues the court, “is conceded by counsel for appellant, but he contends that the evidence shows the beating of the plaintiff to have been a separate and distinct transaction. * * * It was not as the result of any personal malice or ill will of the conductor, but because, as conductor, he was irritated by the conduct of plaintiff, and, as he declares, was actuated with the purpose of teaching the plaintiff a lesson, so that when he was put off he would stay off. There is nothing to indicate that the conductor, under pretense of discharging his duty as conductor, was taking the opportunity to injure plaintiff on account of his personal ill will. He was confessedly acting throughout as conductor — discharging the duty of preventing plaintiff, as a trespasser, from- riding on the train. We think the case is plainly one where the wrongful acts of the conductor, if any, were chargeable to the defendant.”
The same may be said of the facts in the case at bar. The conductor was manifestly acting through no personal ill will to the plaintiff. His acts were with the view of removing the plaintiff, as a trespasser, and to prevent a recurrence of the trespass. He was, if the plaintiff’s story is believed, forcibly removing him from the train and from the position in connection therewith - he was occupying when the assault was committed, for the express purpose and with the sole object in view of preventing him from further riding on the train, AAdiich he was endeavoring to do, and to prevent a continuance of the trespass, and the act complained of was one of a series or a part of a continuous act brought about for this very
“We think the fact that the deceased was retreating from the brewery, at the time the fatal shot was fired, shows conclusively it was not fired for or with the intent of protecting the bmvery, or in the line of Roenspeiss’ • duty. * * * To protect the brewery did not require Roenspeiss to shoot and kill a person who was retreating therefrom.”
Davis v. Houghtellin, 33 Neb. 582, is also relied on. In that case the servant was employed to guard certain feed upon certain premises, and to seize and delain persons who might be found disturbing such feed. The party injured had occasion to be on the premises, and while there the servant, in attempting to seize and detain him, carelessly and negligently shot and killed him. There was no allegation that the third party was molesting the feed, or attempting to do so, and it was held that a demurrer to the petition was rightly sustained. The case, we think, in principle is clearly distinguishable from the one at bar. Other like cases are cited, but it will serve no useful purpose to advert to them at length. Suffice to say that the facts in these several cases on which the right to recover must rest are held-to negative the idea that the servant at the time of the act complained of was acting in the line of his duty, and within the scope-of the employment for which he was engaged. In such case the servant is held to be at the time when the injury was inflicted acting for himself and as his own master, and therefore the master employing him was not liable. The acts relied on as establishing the liability of the master in each instance are held not connected with the business in which the servant was engaged, and it is held that the relation of master and servant was for the time suspended. As we have attempted to elucidate in the case at bar, the acts of the servant which are made the basis for a recovery were
Finding no prejudicial error in the record, we are of the opinion that the judgment should be affirmed, and it is accordingly so ordered.
Affirmed.