Higgins v. Southern Railway Co.

98 Ga. 751 | Ga. | 1896

Lumpkin, Justice,

The plaintiff’s action was dismissed on demurrer. It appears from the allegations of his declaration that he was riding upon a freight-train of the defendant “on top of a caboose,” with the permission of a flagman, but without the' knowledge or consent of the conductor. The latter, upon discovering the plaintiff, cursed him; and while he was running “across the caboose in order to get off,” shot him with a pistol, inflicting a severe and dangerous wound upon his thigh.

Undoubtedly it is the duty of a railroad conductor to determine what persons are entitled to ride upon a train committed to his care, and to expel any person found upon such train who has no right to be there. In so doing, his acts are, in legal contemplation, the acts of his master, for the reason that they are performed in the line of his duty. For the purpose of expelling such a person from a'train, the conductor may lawfully use whatever amount of force is reasonably proper and necessary; but he certainly cannot-commit, even upon a trespasser.,, a malicious, wanton and murderous assault.

The plaintiff, according to his own allegations, was undoubtedly a trespasser. The permission given him to ride upon the train by the flagman amounted to nothing, and the conductor would unquestionably have been justified in ejecting him from the train, if he had done so in the proper manner. It is certainly true that the means employed by him were not only unauthorized, but criminal. At the same time, the object he sought to accomplish was strictly in the line of his employment, and the master is, in law, responsible for the damages which resulted to the plaintiff through the violent and unlawful means employed by the conductor in 'discharging his duty.

This case differs from that of Georgia Railroad Co. v. Wood, 94 Ga. 124. There, the unlawful act of violence committed by the company’s servant, even upon the assumption that it was a part of his duty to keep trespassers off the train, occurred when it could no longer be effective for this purpose; and hence, the act in question was undoubtedly beyond tbe scope of tbe employment in wbicb tbe servant was engaged. It was, however, intimated in tbat case tbat if tbe act of tbe servant bad been done in attempting to prevent a trespass upon tbe company’s property, and tbe trespasser bad been injured by tbe company’s servant on account of bis using more force than be ought to have used in accomplishing bis purpose, tbe company would have been liable. Judgment reversed.