32 S.E. 399 | N.C. | 1899
The motion to dismiss the complaint and for judgment of (93) nonsuit appears from brief of defendant's counsel to be intended to raise again the question whether the lessor company, the *88
North Carolina Railroad Company, the defendant herein, is liable "for all acts done by the lessee in the operation of the road," as was held in Loganv. R. R.,
The issues excepted to are those suggested for cases of this nature inDenmark v. R. R.,
(94) The exception for refusal of the first prayer to instruct the jury that there was no evidence of negligence, and of the fourth prayer to instruct them that there was no evidence that the act of defendant's servant was within the scope of his duties, and of the sixth prayer, to instruct them that there was no evidence that the fireman of defendant's lessee struck the deceased and knocked him off the steps of the tender, are, upon the evidence, without merit. The other part of the fourth prayer, and the seventh prayer for instruction, were given in the charge. The charge of the court given in lieu of the fifth prayer for instruction gives the defendant no ground to complain at the refusal of that prayer.
We will now consider the second and third prayers for instruction, which were:
2. If the jury believe that the intestate of plaintiff was killed by the wanton, willful and malicious act of one of the employees of the railroad company, then the company would not be liable, and the jury should respond to the first issue, "No." *89
3. If the jury find that the intestate's death was caused by the wanton and malicious act of the fireman, and that his act was not done in the furtherance of the business of the defendant, they should find the first issue in favor of the defendant, "No."
The assumption in these prayers that the defendant is not liable if the plaintiff's intestate was killed by the wanton, willful and malicious act of one of the employees of the defendant, and especially if such act was not done in furtherance of the business of the defendant, cannot be sustained. The true test is, was it done by such employee in the scope of the discharge of duties assigned him by the defendant and while in the discharge of such duties? "In the furtherance of the business of employer" means simply in the discharge of the duties of the employment, and the court properly told the jury that the defendant is responsible for the injury if caused by the wrongful act of the (95) employee while acting in the scope of his employment. In Ramsdenv. R. R., 104 Mass. (at p. 120), Gray, J., says: "If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is willful or merely negligent. Howev. Newmarsh, 22 Allen, 49; or even if it is contrary to an express order of the master. R. R., v. Darby, 14 Howard, 468." The rules is thus laid down in 2 Wood Railways, sec. 316 (at p. 1404, 2 Ed.): "Where the act is within the scope of the servant's authority, express or implied, it is immaterial whether the injury resulted from the result of his negligence, or from his willfulness and wantonness; nor is it necessary that the master should have known that the act was to be done. It is enough if it is within the scope of the servant's authority. Thus, where a servant of a railway company, employed to clean and scour its cars, and keep persons out of them, kicked a boy eleven years old from a railing while the cars were in motion, whereby he was thrown under the cars and killed, it was held that the act, although in nobody's line of duty, being done in the course of the servant's employment, the company was chargeable therefor," citing R. R. v. Hack,
In the present case, whether the child jumped off because ordered by the brakeman, or by reason of the hint of a lump of coal whizzing by his head, or was actually struck and knocked off, this mode of getting him off the moving car was tortious, and the defendant is liable for the injury caused thereby. 14 A. E., 822, 823, and cases cited in the notes thereto; Pierce on Railways, 278, 279; 99 Am. Dec., 282, and notes; Peck v. R. R.,
It is true the child was on the tender in violation of a town ordinance, as the defendant contends, but the penalty for this was a small fine and not a license to the defendant's servant to cripple him or kill him.
The defendant, however, earnestly contends that if the servant's act was malicious the company is not liable for negligence. If that theory ever obtained, the above authorities show that it was contrary to reason and has been duly and fully exploded. Besides, the company is not charged in this case with malice because of any alleged malice of its *91 agent, and whether, if it was, it could be held liable for punitive damages is not before us. It is certainly liable for compensatory damage for the injury sustained from the tort of its servant.
The brief of the learned counsel for the defendant strenuously insists that a case of this kind cannot be understood by the Court and justice properly administered unless we translate the action back into one of the old common-law forms of actions, and that when that is done it would be seen that the plaintiff cannot sustain his demand. This suggests the precedent of the physician, who, in a difficult case, proposed to give his patient something to throw him into fits, on the ground that he was infallible in curing fits. It was precisely because the old (98) division into forms of action lent itself to finespun metaphysical distinctions whereby the form of proceeding became more important than the subject-matter and led to frequent miscarriages of justice, that the common sense of an enlightened age swept the old system away, and for more than fifty years the discarded legal jargon of a former age has sounded strange, if referred to at all, at Westminster Hall, in which it grew up. In our own State the Constitution abolished the old system, and by statute we have substituted the simple requirement that the complaint shall contain "a plain and concise statement of the cause of action." Code, sec. 233 (2). That is the case here. We shall not delve in the debris of dead and forgotten centuries, nor disturb the dust that sleeps above the volumes of an outworn and long-rejected legal system. To do so would be to obscure the substantial justice which it should be the sole object of every legal inquiry to ascertain. We need not darken counsel by multitude of words, nor entangle ourselves in the scholastic disputations which once obtained in legal proceeding and very often defeated their object.
Here the plaintiff's intestate was admittedly run over and killed by the defendant's train. Upon the uncontroverted facts of this case, the fireman, as a matter of law, was acting in the scope of his general employment, and the court properly instructed the jury that if the boy was made to get off the car (though he was there wrongfully) by the act of the fireman, whether malicious or not, while the train was moving, so that the boy was killed in consequence of so doing, the defendant was liable for the damage caused by the negligent conduct of its lessee in thus operating its train.
The defendant further excepted "to the charge as given." This is a "broadside" exception which cannot be considered. This has been uniformly so held for a long series of years and in possibly more than fifty cases, and has been recently reaffirmed by Furches, J., (99) in Hampton v. R. R., 120 N.C. at p. 538, and S. v. Moore, ib., at p. 571; by Faircloth, C. J., in S. v. Ashford,
The last exception, which is for refusal of judgment in favor of defendant upon the findings of the jury, needs no consideration beyond what is involved in the preceding discussion.
NO ERROR.
Cited: Adams v. R. R.,
(100)
