Goodloe v. Memphis & Charleston Railroad

107 Ala. 233 | Ala. | 1894

HARALSON, J.

We examine the single question presented by the defense and alone considered by the appellant; that the defexxdant is not guilty for the reason that the injury complained of was xiot inflicted on plaintiff by the defendant’s servant’s or employes, while they were acting within the range but outside of the authority confei’red by defendant on them. Other errors assigned are not insisted on in the argument filed, and are, therefore, treated as waived.

The question presented has been well considered by this and many other coixrts. It was recently before us in the case of Lampkin v. The L. & N. R. R. Co., 17 So. Rep. 448,in which,as the result of the authorities there cited, it was slated as the well settled rule, that the carrier’s obligation was to protect its passengers against the violence and insults of its own servants and of strangers and co-passengers; that a contract exists between a common carrier and its passengers, to use all reasonable exertion to protect them from injury from fellow' passengers and its agents in charge of the train. In an earlier case, it was said, that “the clearly established doctrine now is, that railroad corporations are liable for all acts of wantonness, rudeness or force, done or caused to be done by their agents or employes, if done in and about the business or duties assigned to them by the corporation ; and the rule of vindictive or punitive damages against such corporations for abuse by their employes of the duties and powers confided to them, is the same as that, which applies to natural persons, who are guilty of such misconduct. It is confined however, to abuses perpetrated in the line of duties assigned to them, and does not extend to any tort, wantonness or wrongful act the employes may commit in matters not connected with the service of tho railroad corporation. In the line of their assigned duties, they stand in the place of tho corporation ; without that line, the corporation is bound by nothing they may do,” — L. & N. R. R. Co. v. Whitman, 79 Ala., 239. The same principle had been differently but very clearly expressed in Gilliam v. Railroad Co., 70 Ala., 268; “that if the employe, while acting within the scope of the authority of the employment, do an act injurious to another, either through negligence, wantonness or intention, then for such abuse of authority conferred upon him, or implied in his employment, the master or employer is responsible in damages to the person thus injured. But, if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master is not.”

The principle settled in these and many other similar adjudications, is not disputed, but its application to the cases as they occur, gives rise to continued disputations. What is meant by the words “while acting within the range of the authority of the employment of the servant,” is made the ground for contention in each case. But, that seems, also, to be well settled on authority, and while it is often a matter of nice adjustment to the facts of a case, it has been made clear enough, not to be of very difficult application. It is said, on the point under consideration, that the rule of the responsibility of the master for the acts of his servant, “docs not apply simply from the circumstance that at the time when the injury is inflicted the person inflicting it was in the employment of another; but that, in order to make the master liable, the act inflicting the injury must have been done in pursuance of an express or implied authority to do it. That is, it must be an act which in fairly incident to the employment \ in other words, an act which the master has set in motion.” * * “And generally, where the injury results from the execution of the employment, the master is liable.” 2 Wood on Railroads, § 316. In explanation of the rule, this court long ago held, as the result of the authorities examined and cited, that when the servant is in the performance of his master’s orders, or authorized acts, and in the doing thereof, conducís himself so negligently or unskdlfully that injury results to another, then the doctrine of respondeat, superior applies, and the master will be liable in an action on the case, but that, for the acts of the agent, willfully and intentionally done, without the command and authorization of the master, the servant, and not the master is liable: and that the rule has no application when the servant actually wills and intends the jury, or steps aside from the purpose of the agency committed to him, and inflicts an independent wrong. — Cox v. Keahey, 36 Ala., 340. So, we find it held, that where a slave, being a passenger on a steamboat, was wounded by a gun negligently discharged by the second engineer of the boat; the captain, in an action against him for the injury, was held not to be liable, because the di- charge of the gun by the engineer, was not an act done in the course of his employment, or in the discharge of any duty connected with the service. — McClenaghan v. Brock, 5 Rich. L. (S. C.) 17. And, where a servant employed to light fires in a house, lighted furze and straw, in order to clean a chimney that smoked, and the house caught fire therefrom and -was destroyed, it was held, that the act of cleaning the chimney in the manner stated, was one outside the scope of her employment, and tlie master was not liable. — McKenzie v. McLeod, 10 Bing., 385. And still again, in a recent case, where an employe, who being behind in his accounts, was suspected of setting fire to the building in which he was employed, in order to destroy the evidence of Iris default, wo said, that there was no evidence tending to show, if the employe did sot fire to the building, that-it was a negligent act of his, dono while in the performance of his duty, and that, if he did it it all, it was his own tortious, wicked act, done outside the lino of his employment, in which the defendant did not participate, or afterwards, in any manner ratify, and for which it was not in any manner responsible. — Collins v. A. G. S. R. R. Co , 16 So. Rep., 142.

In the case before us, the evidence shows, that the appellant purchased a ticket at Tusoumbia, from the defendant company, to go as a passenger on its train to his homo at Barton, and tarried in the waiting room until, the arrival of the train, when he loft the waiting room, wont on the platform along the side of the train, and proceeded to the point, at which he could enter the passenger coach, anti when near the entrance of the coach, as he expressed it, he “was struck against, quartering on his back and shoulder* with such force as to knock or push him off the platform on the south sido of it, and fell to the ground, breaking his left log,” &c.

McCormick, a witness for defendant, testified, that he was supervisor of the middle division of the defendant’s railroad, from Corinth to Decatur, and was going over* his division on the train which plaintiff was about to enter, when he was hurt-; that he had nothing to do with the train as an employe ; that he had gotten off on its' arrival, and gone to the train dispatcher's office to sec1 if he had any message for him, and on his return, he found Mr. Porterfield, the road master of defendant, and Mr. Jones, the sleeping car conductor, in conversation with each other, on the platform. Mr. Porterfield asked witness, if ho had ever met Mr. Jones, to which witness made a playful remark, to the effect that he did not want to know him, at the same timo making a. lick at him with his hand, when Jones threw up his hand, as if to ward off the blow, and knocked or pushed witr ness against the plaintiff, which caused him to fall off the platform, and injure himself. Jones, the Pullman conductor, gave substantially the same account of the transaction. There was no evidence, that either had ill will towards plaintiff,.or intended to do him any harm. McCormick knew him well and was friendly with him, and Jones did not know him at all. The evidence also shows, that McCormick and Jones were friends, and what occurred between them was in sport.

What these parties did to cause plaintiff’s injury, was not in the line of their respective engagements, or that of either of them, to their employer; it was not fairly incidental to their employment; i.t was not done in pursuance of an express or implied authority from the master to do it; it was the result of the conduct of these employes who, in the commission of the injurious act, however innocently done, had stepped aside from the purposes of the agency committed to them, and inflicted an independent wrong on the plaintiff; and they, if anybody, and not the defendant company, are liable for it.

Affirmed,