Opinion of the court by
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,
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 mas
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
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-
The judgment of the circuit court is affirmed.
Petition for rehearing by appellant overruled.