243 Pa. 43 | Pa. | 1914
Opinion by
On the morning of March 19, 1910, a number of boys got on a coal train of the defendant company, standing on one of its tracks in the City of Pittsburgh, and threw coal from the cars, which they intended to gather up and take away. A brakeman chased these boys from the cars up over a hill, and motioned to the son of the appellee, who was about twelve years of age, to come to him. It does not appear that this boy had been on the cars or had participated in any way in taking coal from them. As he approached the brakeman the latter seized •him, and having dragged him to the engine at the head of the train, lifted him up into the cab, where the engineer or fireman took charge of him. The brakeman said to a bystander that he intended to take the boy to Connellsville. A few moments later the engineer or fireman frightened the little fellow into jumping from the engine, and in doing so he fell in front of a moving locomotive on the adjoining track and was instantly
Appellant’s plea to avoid responsibility for the death of appellee’s son is that the brakeman acted without the scope of his employment in seizing the boy and dragging him to the engine, and that the same is true of the engineer or fireman in detaining him there for a few moments and then frightening him off. Whether the brakeman exceeded his authority as an employee of the defendant in grabbing the boy and placing him on the engine is not a material question, and we need not pass upon the correctness of the ruling of the court below that in so doing he was not acting within the scope of his authority, for the boy was not injured by anything that was done in seizing him, dragging him to the engine and putting him on it. Nor was he injured by anything that the engineer or fireman did in detaining him there. He was on the engine against his will, and was in no sense a trespasser; but, suppose he had been, there was a duty resting upon the engineer or fireman in putting him off to see that he was not ejected in such a manner as to imperil his life or limb, and surely that duty was no less imperative because he was held as a prisoner in the cab of the engine, even though his imprisonment there was, as counsel for appellant contend, an unauthorized act of an employee of the defendant. The boy was upon the engine, and one of the rules of the company, which it offered in evidence on the trial of the case, forbade his being there. That same rule provided that the engineer would be held responsible for failure to enforce it. It is, therefore, idle to say that the engineer or fireman by his side was not acting within the scope of duty to the appellant when he undertook to remove the boy from the engine. With the situation thus clarified, the cases upon which learned counsel for appellant rely are utterly without application. The
Judgment affirmed.