Sullivan v. L. & N. R. R., 115 Ky. 447

115 Ky. 447 | Ky. Ct. App. | 1903

Opinion of the court by

JUDGE O’REAR

Affirming.

The foreman of a switching crew in appellee’s yard, at Louisville, found a torpedo among -some rubbish in a tool box on the switch engine. As a prank he placed it on the rail in front of one of the driving wheels of the locomotive, which, passing over the torpedo, exploded it, a fragment striking appellant, a member of the crew, and injuring his leg. It is conceded that the switching crew had no occasion to use torpedoes in their work, and that the use of the one causing the injury named was entirely without the line of the foreman’s duty. In this suit by the injured switch-man to recover of the master (appellee) damages for the injury, the circuit court peremptorily instructed the jury to find for appellee.

The reason the master is liable for the act of his servant at all is because the servant is acting in that matter in the master’s stead and for him. Obviously, if the servant is not acting for the master, he can not be said to be his representative in that act. So, if the servant is charged by the master with the authority to act in his stead in a given matter, the servant’s action, or his failure to act, as the case may be, is imputed to the master as if it were his own. This general doctrine must he too well known to require now the citation of authority to support it. But where the servant steps aside from his employment and assumes to act, and does act, solely on his own account, in a matter which the master has no more connection with than if he were the most complete stranger, it would not be logical or fair to make the master vicariously suffer for it. For in doing that act the servant, so called, was absolutely his own master. Cousins v. Hannibal, etc., R. R. Co., 66 Mo., 572. Or, as it was expressed by Mitchell, J., in Morier v. St. Paul, etc., R. R. Co., 31 Minn., 351, 17 N. W., 952 47 Am. Rep., 793 (quoted with approval in Davis v. Houghtellin, 33 Neb., 582, 50 N. W., 765, 14 L. R. A., 737): “In determining whether a particular act is done in the course of the servant’s employment, it is proper to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time the injury was inflicted, acting for himself and as his own master pro tempore, the master is not liable. If the servant step aside from his master’s business, for however short a time, to do an act not connected with such, business, the relation of master and servant is for the time suspended.”

In Smith v. N. Y., etc., R. Co., 78 Hun, 524, 29 N. Y. Supp. 540, the master was held not liable for the act of its station agent in placing a torpedo upon its railway track by the agent for his own amusement, and not for the purpose of signaling a train, whereby a third person was injured. Marion v. Chicago, etc., R. R. Co. (Iowa), 13 N. W., 415, 44 Am. Rep., 687; Croft v. Alison, 4 B. & Ald., 590.

This court, in Smith v. L. & N. R. R. Co., 95 Ky., 11, 15 R., 390, 23 S. W., 652, 22 L. R. A., 72, held that, where the servant acts for his master and in furtherance of his master’s business intrusted to him, -the master is liable for his excessive act, or tort; but that if the servant in the act was acting for himself, to gratify some personal purpose, and independent of any duty to or business of his master, the latter would not be liable. A distinction is made where the person injured is a passenger, under the peculiar and high obligation of the carrier to transport him in safety.

In argument it is rather admitted that the foreman, in placing the torpedo on the track, was acting outside of his employment, and for that act appellee was not responsible; but, it is argued, for the failure of the foreman to remove the torpedo which he knew was on the track, and almost certain to explode, and possibly do injury, the master is liable. While the argument is specious, its application is not practical. The act of the foreman in placing and leaving the torpedo on the track was one continuing act, having in view but one object, namely, the explosion of the torpedo, that its noise might frighten the engineer or fireman. It is not possible to segregate this one continuous act so that it could be said that in part of it the servant was acting for himself and in another part he was acting for his master. In truth it was conceived, set in motion, and ■consummated in furtherance alone of the servant’s own purpose, entirely disconnected from any duty whatever imposed by his employment.

The case of Railway Co. v. Shields, 47 Ohio St., 387, 24 N. E., 658, 8 L. R. A., 464, 21 Am. St. Rep., 840, is relied on. In that case some trainmen placed a torpedo on the track in front of a portion of their train, intending to frighten some ladies by its explosion when the cars passed over it. However, it failed to explode. The trainmen negligently left it there, exposed, at a place where small children were in the habit of passing. Later a child found it, was attracted by its appearance, and exploded it, to his injury. The railway company was held liable, because it was said that the servant (the conductor of the train) was charged with safely keeping the dangerous implements of the master committed to his care in the discharge of the master’s business. This doctrine, carried to its full logical result, would mean that any injury done by a servant with the master’s property in the servant’s care would bind the master. As, for example, a brakeman on a railroad train who would assault a stranger with a coupling pin in use about his train. Or, if the fireman on an engine should purposely and maliciously throw a lump of coal at some one, a stranger, standing beside the roadway, and injure him. Of if, in the case at bar, the foreman had for fun-thrown the torpedo at appellant and injured him. The best-considered and most numerous authorities do not draw the line at whether the servant is using his master’s property when inflicting the injury in question, but whether-he is then representing the master in the act and in the scope of his employment.

The judgment of the circuit court is affirmed.

Petition for rehearing by appellant overruled.