54 So. 885 | Miss. | 1910
On the trial of this case, which was an action against the St. Louis & San Francisco Bailroad Company and T. P. Willis, the conductor, the jury returned a verdict in favor .of the plaintiffs against the railroad company for ten thousand dollars damages. But the verdict was silent as to the codefendant, Willis, the conductor. We think, on the authorities, that this amounted to a verdict exonerating Willis, to the same extent as if they had found a verdict for Willis. After the verdict, Willis made a motion, based on this theory, and the court sustained the motion, and entered a judgment discharging Willis from liability. The cross-appeal is prosecuted from this. We think the action of the court was correct on the matter involved in the cross-appeal.
The defendant company later made a motion in arrest of the judgment against it. The railroad company presents four defenses: First, that the firing of the pistol by the conductor, Willis, and the killing of the deceased, Sanderson, the husband and father of the plaintiffs, was an accident pure and simple, and hence that the company was not liable; second, that the firing of the pistol and
As to the first, the verdict of the jury must be taken as having established the fact that the act was not accidental.
As to the third defense, that the deceased was not a passenger, we think, also, that the evidence as to whether he was a passenger, under all the peculiar circumstances of this particular case as shown by the evidence, was a question of fact for the jury to determine, on proper instructions from the court. The defendant company got the benefit of instructions which told them in varying forms that if they believed from the evidence that the deceased was concealing himself so as to evade the payment of his fare, that he did not have the bona fide intention when he boarded the train of paying his fare, but was stealing a ride and attempting to evade his fare, they should find for the defendant company. Under these full instructions on the testimony in the case, the time of the ride being only about five minutes, we think the. fact that he was a passenger was properly submitted to the jury for their determination, and that the verdict consequently establishes the fact that he was a passenger. The authorities on this subject have been admirably collected by the counsel on both sides, whose
As to the second proposition, if it should be conceded that the act was not one in the line of the conductor’s duty, but was one wholly outside of the scope of his employment and the line of his duty, it is thoroughly well settled that' this beneficent principle, applicable in proper cases, that the master is not responsible for the acts done by the servant outside the line of his duty, and .not- in the service of the master, has no application whatever to • a case where the conductor, the alter ego of the company, himself inflicts the injury on the passenger. In Thompson on Negligence, vol. 3, § 3187, it is said:. “This calls up a plain distinction between the liability of a carrier of passengers for assaults or insults committed by his own servants upon his passengers and for similar wrongs committed by them upon trespassers or third persons. For such wrongs committed upon his passengers he will be liable in any event, whether in doing them his servant was acting within the scope of his employment or not, since they are a breach of his contract to carry his passenger in safety and with good treatment.” And in a masterly opinion by McClellan, C. J., Birmingham Ry. & Electric Co. v. Baird, reported in 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43, this doctrine is elaborately discussed and thoroughly vindicated, citing and reviewing a large number of authorities. Judge McClellan, speaking for the Supreme Court of Alabama in that case, says: “And it is of no consequence, when the wrong is committed by the carrier’s own servant, even that servant particularly charged with the duty of conserving the passenger’s well-being, en route, that the act bears no connection or relation with or to the duties of such servant to the carrier, and is not committed as an incident to the discharge of any duty, but is utterly violative of all duty, and apart and away from the scope of employment, as that term is
He quotes in that opinion the following from Chief Justice Ryan in the case of Craker v. Chicago Railroad Company, 36 Wis. 657, 17 Am. Rep. 504: “But we need hot pursue the subject; for, however that may be in general, there can be no doubt of it in those employments in which the agent performs a duty of the principal to third persons, as between such third persons and the principal. Because the principal is responsible for the duty, and if he delegate it to an agent, and the agent fail to perform it, it is immaterial whether the failure be accidental or willful, in the negligence or in the malice of the agent, the contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent. It would be cheap and superficial morality to allow one owing a duty to another to commit the performance of his duty to a third, without responsibilty for the malicious conduct of the substitute in the performance of the duty. If one owe bread to another, and appoint an agent to furnish it, and the agent of malice furnish a stone instead, the prin
We approve this as the true rule in this character of cases. The supreme and paramount duty of the conductor, who is the master in such cases, is to protect the passengers from injury, and the absolute character of this duty excludes entirely the operation of the other principle, applicable in proper cases, that the master is not liable for the servant’s act, where that act is clearly not in the line of his duty and done outside the scope of his employment. It seems to us a perfectly sound rule, founded in the highest and most beneficent public policy.
In the case of Railroad Company v. Clarke, 85 Miss. 697, 38 South. 97, this court followed the Texas Supreme Court, and rested its judgment on two grounds: First, that if it were assumed in such case that the. company and its servants were jointly liable, nevertheless the right of action which the plaintiff had was both joint and several, and that, though both were equally liable, the liability was based on distinct and different legal principles — the servant because of his personal trespass, and the company because of its failure to discharge its nondelegable duty towards the public regarding its custody and management of its dangerous instrumentalities, or, as here, in not having a competent conductor. And the court rests its judgment in the second place on our statute (section 4944 of the Code of 1906; section 4378 of the Code of 1892), which is in the following words: “In all cases, civil and criminal, a judgment or decree appealed from may be affirmed as to some of the appellants and be reversed as to others; and one of' sev
We think this statute, with this construction placed upon it, is a perfect answer to the argument of learned counsel for appellant on the motion in arrest of judgment. The error assigned by the railroad company, that the verdict exonerating Willis, the conductor, was wrong, at the same time a verdict against the company was rendered, under our statute, and the construction referred to here is at most merely a reversible error as ’to Willis, not affecting the validity of the judgment against the railroad company. Besides all of which, it is further to be said that we have recently reviewed, on full consideration, the case of Clarke v. Railroad, in the case of Nelson v. I. C. R. R. Co., 53 South. 619, and approved and reaffirmed the doctrine of the Clarke case on this point, and we remain satisfied of the correctness of our conclusion on the grounds indicated. There are cases to the contrary, which are pointed out by the learned counsel for appellant; but those cases were decided in the absence, so far as they show, of any statute like ours on this subject. Our statute was manifestly intended to do away with the opposite rule, as one which would in many cases sacrifice the substantial rights of parties to
Consequently since our statute of 1836, authorizing several judgments, and dismission or release of one or more who are sued, cannot per se release the others. .This construction of the Kentucky statute is exactly our construction of our statute. See, also, the elaborate notes to Louisville Mail Company v. Barnes, supra, and the note to Abb v. Northern Pacific Railway Company, 92 Am. St. Rep. 872. And see the opinion of this court in Bailey v. Delta Electric Company, 86 Miss. 634, 38 South. 354, where, in concluding the opinion, it was said: “This is more in- accord with justice and in better harmony with the principles of enlightened jurisprudence, which will not permit a party suffering a wrong to be deprived of his right to redress by any purely technical reason.”
Affirmed on appeal.
Affirmed on cross-appeal.
The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment of the court below is affirmed, both on the appeal and cross-appeal.