87 N.Y. 25 | NY | 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *27 The jury have found that the plaintiff was kicked from the car while in motion, by the conductor or brakeman. There was a very sharp conflict of evidence upon this question. The testimony of the conductor and brakeman, and of a by-stander, tended strongly to show that neither the conductor, nor brakeman, touched, or said any thing to the plaintiff, and that he and other boys jumped off the platform of the car, as the brakeman came out of the door.
It is not claimed that the finding of the jury upon this issue is unsupported by evidence, and the point is not raised *30 by any exception, but it is insisted that the act of kicking a boy from a car while in motion, assuming that it was done by the conductor or brakeman, was not within the scope of any authority conferred by the defendant upon the person in charge of the train, but was an illegal, wanton, and willful act, for which the employer is not responsible.
By the general regulations adopted by the defendant, in force at the time of the transaction in question, the conductor has charge of the train, and is responsible for its safe and proper management, and brakemen, and other servants thereon, are subject to his orders. He is authorized to remove from the car persons who refuse to pay their fare, or are drunk, riotous, or unruly; but the regulations declare that in exercising this authority he must be governed by the provisions of law. The only provision of law on the subject is found in section 35 of the General Railroad Act (Laws of 1850, chap. 140), which provides, that if any passenger shall refuse to pay his fare, it shall be lawful for the conductor to put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling-house, on stopping the train. The regulations defining the duties of brakemen, introduced by the defendant, are not printed in the case, and there is no proof before us of any specific authority given to brakemen to remove trespassers from the cars. It is conceded that authority in a conductor to remove a trespasser in a lawful manner, whether conferred by the rules or not, is implied, and is incident to his position. We think the same concession must be made in respect to the authority of a brakeman who finds a trespasser on the platform of a car. His duties do not primarily pertain to the protection of the cars against intruders; but he is a servant of the company on the train, concerned in its management, and fully cognizant of the obvious fact that intruders, who jump upon the train for a ride, without intention of becoming passengers, are wrongfully there. Suppose a train was standing still, and a trespasser was put off by force by a brakeman, using no unnecessary violence, would it not be a good defense to an action against him for *31
the assault, that he was brakeman, and did the act complained of in that capacity, although without express authority? The implied authority in such a case, is an inference from the nature of the business, and its actual daily exercise, according to common observation and experience. But assuming authority in the conductor or brakeman to remove a trespasser in a lawful manner, the question remains, whether when a conductor or brakeman, without warning or notice of any kind, kicks a boy of eight years from the platform of a car, while the train is running at a speed of ten miles an hour, he can be said to be acting within the scope of his employment, so as to make the company liable for the act. Assuming the case made by the plaintiff, the act was flagrant, reckless, and illegal; but the point is, was the act within the scope of the employment and authority? If it was, and the servant in doing what he did, undertook to act for the company, and not for himself or for his own ends, the company is not exonerated, although the servant may have deviated from instructions in executing the authority, or may have acted without judgment, or even brutally. The removal of trespassers from the cars, was, as we hold, within the implied authority of the defendant's servants on the train. The fact that they acted illegally in removing the plaintiff while the train was in motion, does not exonerate the defendant. In some cases, where the existence of an authority in the servant to do a particular act is in controversy, and the authority is sought to be established by inferences and implications, it may be a material circumstance bearing upon the non-existence of the authority sought to be implied, that the act was one which the master could not do himself, without a violation of law. But this fact would not be decisive. No doubt the kicking of the boy off the car, was not only a wrong to the plaintiff, but was a violation of the duty which the train servants owed to the defendant, to exercise proper care in executing the authority confided to them; but in most cases, where the master has been held liable for the acts of a servant, the tortious act was a breach of the servant's duty. In this case, the authority to *32
remove the plaintiff from the car was vested in the defendant's servants. The wrong consisted in the time and mode of exercising it. For this the defendant is responsible, unless the brakeman used his authority as a mere cover for accomplishing an independent and wrongful purpose of his own. The general subject has been recently considered in this court, and it is unnecessary further to elaborate it. (Higgins v. The Watervliet TurnpikeCo.,
The trial judge, in the course of his charge, said that the evidence for the plaintiff, came from Vogel, and this young man (referring to the plaintiff), "a very intelligent and, I think, truthful youth; I mean so far as a desire to tell the truth is concerned; but who was eight years old at the time the thing happened." The defendant's counsel, at the conclusion of the charge, excepted to "that part of the charge in which the court expressed the opinion that the plaintiff was a truthful young man." The court replied: "I did think so, but I did not say that for that reason he ought to be believed." The credit to be given to a witness, involves the consideration of his intention to tell the truth, as well as the accuracy of his memory; and in both branches it is for the jury. But we think it is not an error of law for a judge to indicate an opinion as to the honesty of a witness, in commenting upon his evidence. At the same time, in view of the just regard which is paid by jurors to the opinions of the judge, it is doubtless proper that in a case of conflicting evidence, he should use great caution in expressing his opinion. In this case, the judge did not assume to take the question of credibility from the jury; and when his attention was called to the subject by the exception, he unmistakably referred the matter to them. It would greatly embarrass the administration of justice, if every unguarded expression of opinion by the judge on a question of fact during a trial, should be subject to exception, as invading the province of a jury; and we have seen no well-considered *33
authority sustaining such a rule. (Winne v. McDonald,
All concur.
Judgment affirmed.