Fairchild v. New Orleans & North-Eastern Railroad, 60 Miss. 931

Fairchild v. New Orleans & North-Eastern Railroad

60 Miss. 931 | Miss. | 1883

Cooper, J.,

delivered the opinion of the court.

The appellee was engaged in the erection of a telephone *932line along its right of way, the work being under the supervision of its agent, Thompson, who was charged with the duty of procuring the necessary poles, which he was directed by the superintendent to get from the appellee’s right of way. The laborers employed negligently or wilfully cut certain trees from the land of the appellant, which were used as poles for the telephone line, and this suit is brought to recover the statutory penalty for such cutting. The testimony is conflicting as to the instructions given by Thompson to the laborers in reference to the locality from which the poles were to be obtained, he testifying that he explicitly instructed them to confine themselves to the right of way, which was clearly defined, while it was testified by a witness for the plaintiff that his instructions were to get them from the right of way if they were to be had there, and if not, to obtain them from the adjacent land. We must assume that the judge below, by whom the case was tried, a jury being waived, believed the witness Thompson.

It is, however, said by the appellant that as a corporation can only act by and through its agents, it must be held that the corporation was itself present through its agents, the laborers, and if it was so present then the negligence or wilfulness of the laborers was the negligence or wilfulness of the defendant. The principle invoked would be applicable if the injury had been caused by the negligence of Thompson, the agent of the corporation, who was charged with the performance of the work of constructing the line ; but the mere laborers who were under his control and direction did not occupy the attitude of agents of the company within the rule invoked.

These laborers were the mere sentient tools of the company, authorized by the character of their employment to exercise no discretion or judgment as the representatives of the corporation, but were simply charged with performance of the physical labor necessary to the execution of the instructions of their superior.

The judgment is affirmed.