269 Pa. 222 | Pa. | 1920
Opinion by
The principle enunciated in Petrowski v. R. R., 263 Pa. 531, and Minute v. R. R., 264 Pa. 93, does not control this case. Where infant trespassers are found on board a freight train by a man duly garbed as an employee, he may, in the performance of his duty of guarding and protecting the train, eject such persons, and it is immaterial how the boy got upon the cars, whether with or without permission. It is the duty of the employee to put him off, and when so acting he is within the scope of his employment, but in putting him off he must commit no negligent act that is likely to cause the infant injury. In the case at bar, the driver of defendant’s storage and transfer truck permitted or invited plaintiff’s son, fourteen years of age, to ride on the truck. When the boy reached his destination, the car stopped and he attempted to alight. The driver, it seems, did not give him sufficient time. He started the truck just as the boy was part way down. By so doing, it threw the lad under the wheels, causing the injury complained of. To sustain a recovery, under these circumstances, it should appear that the act of the driver, in permitting the boy to ride, was fairly within the scope of his employment: Wind v. Steiert & Son, 71 Pa. Superior Ct. 194; Byrne v. Pittsburgh Brewing Co., 259 Pa. 357; Scheel v. Shaw, 60 Pa. Superior Ct. 73. If he so acted, the master owed a duty through his agent to see that no negligent act should happen that might injure the invitee. The test is not that, when the invitation was
Judgment affirmed.