Appeal, Nos. 362 and 363 | Pa. | Jun 3, 1918
This action was brought for the recovery of damages for injuries sustained by Zortman Stidfole, a boy ten years of age, in being chased or driven from a car of the defendant company on which he was a trespasser. The jury found that the brakeman who chased or drove him off had done so in a negligent manner, for which the company was responsible, and verdicts and judgments for the boy and his mother followed. On this appeal from them by the railway company its main contention is that Maurer, the brakeman, was not acting within the scope of his employment when he drove the boy off. This is sufficiently and correctly answered by the following from the charge of the learned trial judge: “Mr. Maurer was a brakeman, temporarily engaged in one of his duties, and that duty was flagging, nevertheless he was still» a brakeman, and while flagging he was in the service and engaged in the business of the defendant company, and among his duties as a brakeman was the duty of keeping trespassers off of trains. The mere fact, therefore, that he ordered this boy off this train and pursued him, both striking and striking at him, while he was temporarily engaged in flagging trains at this switch, would not alter or affect the liability of his employer, the defendant company, for his negligent act. I instruct you that this is the law that you will apply in this case, if you believe that the facts warrant its application. In other words, if you find as a fact from the whole evidence that the accident occurred in the way as re