68 Mo. App. 92 | Mo. Ct. App. | 1896
This is an action to recover damages for personal injuries. The facts of this case, shortly stated, are about these: The plaintiff, about 8 o’clock of the night he received the injuries which he made the basis of this action, went into the waiting room of the defendant’s station at Altamont, where he lay down on a bench and went to sleep. About midnight, he suddenly awoke, finding his legs and feet on fire. After the fire had.been extinguished, one Keating, who was the defendant’s station agent and night operator in charge of the station, was standing near the plaintiff and on plaintiff inquiring, “Who done it-1?” Keating said, “he did, to scare me (plaintiff) out of the depot,” and, “that the superintendent told him not to allow any bums around there.” The undisputed evidence was further to the effect that while the plaintiff was asleep, Keating took a bottle of benzine, and poured the contents on the bench on which the plaintiff was sleeping. As to whether Keating set fire to the oil or whether it was done by another, the evidence was conflicting.
Keating testified that he intended to set fire to the benzine, but that someone else did it. He stated that if the benzine got on the plaintiff’s legs (about which there is no dispute) “it must have run on his legs.” He further testified that his purpose in pouring the benzine on the bench was to have some fun with the plaintiff.
The plaintiff was badly injured. He was disabled for several weeks and suffered much pain in consequence of the injuries he received. There was a trial, which resulted in judgment for the plaintiff and defendant has appealed.
And in further giving the plaintiff’s third, which declared: ’‘that although they may believe from the evidence that the said Keating did not set fire to said benzine, yet if they further believe from the evidence that he poured the same on plaintiff for the purpose of having someone else set it on fire, and that said person did set fire to the same,” to find for plaintiff, etc.
If the defendant’s agent, while in charge of said station and in the performance of his duties as such station agent, poured benzine upon the legs and feet of the plaintiff, or poured the same on the bench on which plaintiff was sleeping, whereby the clothing on his legs and feet became saturated therewith and the plaintiff’s legs and feet were burned in consequence thereof, it is immaterial whether defendant’s station agent set fire to the benzine himself, or whether it was done by another, for, in either case, the defendant is liable for the injuries resulting to the plaintiff by the wrongful act of its agent.
In Haehl v. Railroad, 119 Mo. loc. cit. 339, it is said: “The principle of respondeat superior applies only where what is complained of was done in the course of the employment. The principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in and about his business and carrying out his purposes. He is then responsible because the thing complained of, although the agency of another, was done by himself; and it matters not whether the injury with which it is sought to charge
It was the manner which was adopted by the defendant’s station agent in performing a duty of his employment which occasioned the plaintiff’s injury. The instructions told the jury, in effect, that if the defendant’s station agent, in the performance of a duty of his employment, committed the wrong on plaintiff, the defendant was liable for same, and this, it seems to us, accords with the rule declared by the authorities to' which we have referred.
Among the well established rules of consequential damages is that which declares that “the innocent or the culpable act of a third person may be the immediate cause of the injury and still an earlier 'wrongful act may have contributed so effectually to it as to be regarded as the efficient, or at least the concurrent and responsible cause.” And where the wrongful act of one party affords only the occasion for the illegal or wrongful act of another, it is too remote as to the first wrongdoer, yet this rule is always subject to the qualification “unless the injury thus arising was such as was likely, according to the general experience, to happen from such conduct; or where the misconduct offering such opportunity consists in the omission of some precaution it was the defendant’s duty to take against such loss as has occurred.”- The following are some of the cases which illustrate the application of the principle embodied in the foregoing rules. Morrison v. Railroad, 27 Mo. App. 418; Boggs v. Railroad, 18 Mo. App. 274; Nagel v. Railroad, 75 Mo. 661.
No wrongdoer ought to be allowed to apportion or qualify his wrong, and as a wrong hjas actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. To entitle a party to exemption, he must show not only 'that the same loss might have happened, but that it must have happened, if the act complained of had not been done. Davis v. Garnett, 5 Bing. 716.
But if it be assumed that the defendant’s agent
The defendant cites and relies greatly upon a. Texas casq (Railroad v. Cooper, 32 S. W. Rep. 517), but a reference to that ease will show that the ruling there made is inapplicable here, for there the plaintiff was in the tender of the locomotive, with the consent of the engineer, and while so being, the fireman, with the consent of the engineer, introduced the end of the nozzle or hose connected with the boiler into the plaintiff’s hip pocket and the engineer, by means of the appliances of the machinery, turned upon the plaintiff hot water or steam, which scalded and injured the plaintiff. It was held the railway company was not liable, since, in the performance of the act by which plaintiff was injured, the engineer and fireman were not acting within the scope of their authority and in the discharge of a duty in furtherance of the business of their employer. But here the defendant’s station
The judgment will be affirmed.