153 Wis. 281 | Wis. | 1913
The contention of the appellant for reversal is that at the close of the evidence the court below should have directed a verdict for the defendant on the ground that the undisputed evidence showed that when Eberling opened the switch, which act caused the injury, he was not acting within the scope of his employment; and further that the court erred in changing the answer to the sixth question from “No” to “Yes.” It is contended by appellant that unless the court below could say as matter of law that Eberling was not acting beyond the scope of his employment when he opened the switch, the finding of the jury on that question should not have been disturbed.
It appears from the evidence that the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, hereafter called the Soo, under a contract with the defendant was using the defendant’s track from Rugby Junction to Milwaukee; that the trains of the Soo passed from its track to the track of the
The defendant claims that in opening the switch in question Eberling was acting outside of the scope of his employment, therefore the defendant was not responsible for his acts in that regard. The undisputed evidence shows that the switch in question was out of repair and the section foreman of defendant, John Schmidt, with two other section men, Kraus and Eberling, in the discharge of their duties for defendant, went to Rugby Junction to repair it; that it was discovered that the lock of the switch was broken or lost and Eberling was left to watch the switch, the foreman and Kraus going away; that Eberling was instructed by the foreman to remain in charge of the switch until an expected train on defendant’s road had arrived, then go to Richfield, procure a switch lock, and lock the switch; that it was the duty of Eber-ling, in case a Soo train came while he was there, to pull the spikes so the switch could be thrown and let the Soo train onto defendant’s track, and, after the Soo train passed, drive the Spikes back so as to hold the switch point to the main track; that the switch lock being broken or lost, the point was spiked, and when the point is spiked the switch cannot move; that while Eberling was thus in charge of the switch he thought the connection rod was broken and turned the switch to look at it and found it all right; that when so turned the
It further appears from the evidence that the contract between the Soo and the defendant respecting the use of the defendant’s track provides in substance that the Soo shall at its own expense maintain the connections of its tracks with the tracks of the defendant at Bugby Junction and require its employees to turn the switches connecting said tracks on defendant’s tracks whenever its engines or cars have passed over said switches and save the defendant harmless from all loss which it may suffer on account of accidents caused by the misplacement of switches by the agents or employees of the Soo. This contract, however, is not important as bearing upon the instant ease, because the defendant undertook through its agents to repair the switch, and through the negligence of the defendant’s agent while so in charge of the switch the injury was caused.
It is argued by counsel for appellant that the evidence shows without dispute that neither the defendant nor Eberling owed any duty to the plaintiff in this case to open or close the switch, and that when Eberling opened the switch he stepped aside from his duty and acted beyond the scope of his employment, hence the master'is not liable, on the authority of Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304; Cobb v. Simon, 119 Wis. 597, 97 N. W. 276; Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016; and some cases from other jiirisdictions. The question has been so often and fully
It is said by counsel for appellant that in opening the switch Eberling was a mere volunteer and the act one outside of the scope of his employment. It is true the rule is well settled that when an agent acts outside the scope of his employment his acts are not binding upon his principal. But it is not always easy to determine what acts are and what are not within the scope of employment. Whether the acts of a servant are within the scope of his employment is ordinarily a question for the jury. But when the facts are undisputed and no conflicting inferences can be drawn from the evidence, then the question becomes one of law.
In the instant case, from the undisputed evidence it appears that Eberling did not depart from his employment, but merely departed from or neglected a duty within the scope of his employment, and therefore his master was liable for his acts. Fireman's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507; Euting v. C. & N. W. R. Co. 116 Wis. 13, 92 N. W. 358; Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424; Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304; Fick v. C. & N. W. R. Co. 68 Wis. 469, 32 N. W. 527. It is well settled that when a servant is engaged in the performance of a duty delegated to him by the master, his tortious acts within the scope of his employment, though unlawful, unauthorized, or even forbidden, are binding upon his master. Johnston v. C., St. P., M. & O. R. Co., supra, and cases there cited; Bergman v. Hendrickson, supra.
Eberling was an employee of the defendant, acting in the performance of his master’s duty, within the scope of his employment, and attempting to perform a duty for the master, and even though he improperly performed that duty, or violated instructions in the performance of it, still the master is liable for his acts.
No other questions require treatment.
By the Court. — The judgment is affirmed.