Porter v. C., R. I. & P. R., 41 Iowa 358

Porter v. C., R. I. & P. R.

41 Iowa 358 | Iowa | 1875

Cole, J. —

The evidence introduced on the tidal by the *361plaintiffs and defendants tended to establish, the facts substantially as set out in the third count of the answer, which is contained in the statement of the case preceding this opinion. After the evidence was closed the defendant asked the court to instruct the jury as follows:

“ Instruction 12. If you find from the evidence that certain persons were employed to run and operate a train upon the railroad/ of defendant, that these persons, while so employed, and while engaged in running a train, committed an assault and battery upon the person of plaintiff, he, the plaintiff, at the time not being a passenger upon or in any way connected with defendant or its train, but was simply a stranger or citizen passing on or along its railroad track; or that the persons so employed attempted by force to and did kidnap him, and this was done without any direction, or authority, or knowledge of the defendant other • than such employment,’then the defendant is not liable in damages sustained by reason of such acts.” Which the court refused, as well as several others involving the same principle, and gave instructions to the effect that such acts as were specified in the answer “were in some manner connected with the use and operation of the defendant’s' railroad within the meaning of the statute, to the extent that the defendant would be held responsible for such acts, provided you find that they were willful and wrongful acts, under the instructions hereinafter given.” The statute referred to, being Code, section 1307, is as follows: “Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of agents, or by any mismanagement of engineers, or other employes of the corporation, and in consequence of the willful wrongs, whether of commission or omission, of such agents, engineers or other employes, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed.”

*362i railroads • acts’1 of01employes. *361In our view, the refusal to give the instructions asked, as well as the giving of that quoted, was error. Without deter*362mining whether the statute is in any respect different from the common law rule respecting the liability of employers for the wrongful acts of their employes, we are clear that the acts charged, as shown by the evidence, were not in any manner connected with the use and operation of the defendant’s railroad. ' They were wholly disconnected with the employment for which those doing the acts were engaged. The following cases sufficiently illustrate and confirm our views: De Camp v. The Miss, & M. R. R. Co., 12 Iowa, 348; Cooke v. The Ill. Central R. R. Co., 30 Iowa, 202; Howe v. Newmarch, 12 Allen, 49, 52-3-6; Moore v. Sanborn et al., 2 Mich., 519-29; Lyons v. Martin, 8 Ad. & El., 512; Allen v. London etc. R. R. Co., Eng. L. R. Q. B., 65; The Little Miami R. R. Co. v. Wetmore, 19 Ohio, 110; The Thames Steamboat Co. v. The Housatonic R. R. Co., 24 Conn., 40, 54; Elkins v. Boston and Maine R. R. Co., 23 N. H., 275; Penn. etc. R’y v. Zug, 47 Pa. St., 480; Rich v. Jakway, 18 Barb., 357.

Reversed.