55 Minn. 446 | Minn. | 1893
The plaintiff brought this action to recover for personal injuries to Ms infant child, caused by tbe negligence of the alleged servant of the defendant. 1878 G. S. ch. 66, § 34.
The injuries were inflicted by one O’Connell, and the only question presented by this appeal is whether O’Connell was defendant’s servant. The evidence, in which there is no material conflict, is substantially as follows: The defendant maintained a public depot .and freight and passenger station at the village of Waverly. The premises were owned and controlled by the defendant, but the Great Northern Express Company and the Western Union Telegaph Company had their offices in the same building, one Westinghouse being the common agent for all three companies. Westinghouse had exclusive charge of all of defendant’s business at the station. He testified that he had no authority to employ any assistants, such authority being exclusively vested in the general officers of the company; and, as respects express authority, this testimony is not contradicted. For a year or more before the injury complained of, Westinghouse had permitted a young man named Foutch to use •and practice on the instruments in the office, for the purpose of learning telegraphy; and during that time Foutch had been in the habit, as occasion required, of assisting Westinghouse in the performance of his railway duties, such as selling tickets, handling freight, putting out switch lights, etc. He had no contract with the railway company, and received no wages; the work he did evidently being in return for the privilege of the office, and the use of the instruments, in learning telegraphy. There is no evidence that the general officers of the defendant knew of or assented to Foutch’s performing this work, except the length- of time it had continued, .and the absence of any testimony that they ever objected. About ten days before the accident, Westinghouse, with the permission of
Under the doctrine of respondeat superior, a master, however careful in the selection of his servants, is responsible to strangers for their negligence committed in the course of their employment. The doctrine is at best somewhat severe, and, if a man is to be held liable for the acts of his servants, he certainly should have the exclusive right to determine who they shall be. Hence, we think, in every well-considered case where a person has been held liable, under the doctrine referred to, for the negligence of another, that other was engaged in his service either by the defendant personally, or by others by his authority, express or implied. There is a class of cases, of which Bush v. Steinman, 1 Bos. & P. 404, (often doubted
The cases most generally cited in support of it are Booth v. Mister, 7 Car. & P. 66, and Althorf v. Wolfe, 22 N. Y. 355. In Booth v Mister the defendant’s servant, whose duty it was to drive his master’s cart, was riding in the cart, but had given the reins to another person, who was riding with him, but was not in the master’s employment, and through the negligent management of this other person the plaintiff was injured. The defendant was held liable, not for the mere negligence of such other person, but for the negligence of the servant himself, who was riding in the cart, and either actively or passively controlling and directing the driving, as much as if he had hold the reins in his own hands.
In Althorf v. Wolfe, a servant, having been directed to remove snow from the roof of his master’s house, secured the services of a friend to assist him; and while the two were engaged together, in throwing the snow from the roof into the street, a passer-by was struck and killed. It was held that it was immaterial which of the two threw the ice or snow which caused the injury; that in either case the master was liable. The case is a very, unsatisfactory one, and it is very difficult to ascertain the precise ground upon which it was
Under this view of the law, the evidence made a case for the jury to determine whether Westinghouse had implied authority from the defendant to employ O’Connell as an assistant, or, to state the question differently, whether O’Connell was rendering these services for the defendant by its consent.
If the evidence were limited to the employment of O’Connell alone, and to what occurred during the ten days preceding the accident, it would probably be insufficient to support a verdict in favor of the plaintiff. But it is an undisputed fact that Westinghouse had for over a year before this been employing Foutch as an
■ There is nothing in the point that defendant is not liable because the freight which O’Connell was moving had been delivered to the consignee, who had promised to take- care of it where it laid, on the station platform.
O’Connell’s act was in the line of his employment, and was being-done in furtherance of defendant’s business. The liability of the defendant to third parties cannot be made to depend upon the question whether, as between it and the owner of the goods, it «owed the latter the continued duty of taking care of them.
Order affirmed.