94 So. 793 | Miss. | 1922
delivered the opinion of the court.
The Illinois Central Eailroad Company appeals from a judgment of one thousand two hundred fifty dollars, rendered against it as damages for an assault and battery committed upon appellee, Wilson Green, by a servant of the railroad company, while appellee was a trespasser, stealing a ride upon one of its freight trains.
The main point urged by appellant for reversal is that, if the assault was committed by one of its servants, it was done-while the servant was acting beyond the scope of his authority, and not in furtherance of the master’s business. The opposite view of the appellee is that the assault
The facts, briefly stated, pertinent to the question presented by the appeal, are as follows: The appellee, Wilson Green, Jr., a young negro about twenty years of age, accompanied by one of his friends, boarded one of appellant’s freight trains at Martin, Tenn., and was “stealing a ride” on his way back home to Canton, Miss.
After the train left on its journey southward, and while the appellee was riding upon a flat car, some five cars back from the engine, a person appeared on the top of a box car near the flat car, and fired a revolver shot in the direction of appellee, ivhich struck him and caused him to .fall from the train, and one of his feet fell upon the rail and was crushed to such an extent that it was necessary to amputate it.
On the trial of the case the appellee testified that the man who shot him was the fireman on the train, who he had previously seen putting coal in the locomotive and oiling it when the train was standing still. He was positive in his identification of the fireman as the man who suddenly appeared on top of the box car and shot him without warning, or without attempting to eject him from the train.
The conductor, trainmen, engineer, and fireman all testified that no one of them did the shooting. They appeared in person at the trial, and the appellee was asked to identify the man who shot him, but he said that he was unable to do so; he insisted, however, that it was the fireman who did the shooting, and described the way he was dressed and the cap that he wore. The conductor testified that a strange white man w;as seen hanging onto the train at or near the place where the shooting occurred, and that the description of the assaulter given by appellee suited that of this white man, who was seen to hang onto the train at that point.
The testimony offered by the appellees shows without contradiction that the man, whoever he was, that shot him, suddenly appeared upon the box car next to the flat car upon which appellee was riding, and, without any notice or effort to eject appellee from the train, willfully and maliciously shot appellee, causing him to fall from the car upon the rail, Avhich resulted in the loss of his foot.
The record contains no evidence showing that the assault was made by the fireman, or any other member of the crew, while in the attempt to eject appellee from the train, but the case Avas submitted to the jury upon the theory that recovery might be had if under any circumstances the appellee' Avas assaulted by the fireman or any other- member of the creAV engaged about the operation of the train, and was at the time acting within the scope of his employment and in furtherance of the master’s business.
It is our opinion, from the undisputed facts disclosed by the -record, that the appellee has no right of recovery, and that the peremptory instruction asked in the lOAver court by the appellant should have been granted.
The evidence fails to warrant a recovery for two obvious reasons, namely: First the fireman had no authority, and Avas acting beyond the scope of his employment, to- leave his engine to go back over the train five cars away and attempt to eject a passenger beating his way on the train. The fireman was employed to coal the engine and do such other incidental work in and about the engine and tender as Avas necessary to operate the engine; and if he left his employment and went back upon the train while it was running and assaulted a trespasser riding thereon the master is not liable for his act. The fireman, in this case,
The second reason why there is no liability iii this case is that, conceding, for the moment, the fireman is such a member of the train crew as makes it his duty to leave his engine and go back upon the running train and eject trespassers, still in this case the shooting of appellee was not done in furtherance of the master’s business while attempting to eject the trespasser, but the shooting was willfully and maliciously done without warning, and not in the purpose of ejecting the trespasser, but was done for some other personal, malicious, and unlawful motive, without authority of the railroad company and for which it is not liable in damages.
The rule is well settled in this state that the master is not liable for the acts of the servant when done outside of the scope of his employment and not in furtherance of the master’s business, unless such act be directed to be done by the master or ratified by him. Railway Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356; L. & N. R. Co. v. Douglass, 69 Miss. 23, 11 So. 933, 30 Am. St. Rep. 582; Vicksburg Waterworks Co. v. Gorman, 70 Miss. 360, 11 So. 680; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620; A. & V. Ry. Co. v. McAfee, 71 Miss. 70, 14 So. 260; A. & V. Ry. Co. v. Harz, 88 Miss. 681, 42 So. 201; I. C. R. Co. v. Latham, 72 Miss. 32, 16 So. 757; Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228.
In' view of the conclusions reached above, the judgment of the lower court is reversed, and judgment entered for appellant.
Eeversed, and- judgment here for appellant.
Reversed.