262 P. 496 | Kan. | 1928
The opinion of the court was delivered by
In this appeal the St. Louis-San Francisco Railway Company brings up for review a ruling of the trial court denying its motion for judgment upon special findings returned by a jury in connection with the general verdict in which Henry Taylor was awarded damages in the sum of $2,250. A motion for a new trial was filed by defendant, but it was subsequently withdrawn and the only question presented on this appeal is, did the court err in overruling defendant’s motion for judgment upon the special findings?
The plaintiff alleges, among other things, that while he was riding upon the train, admittedly without ticket or permit, he took a position upon an oil car and while holding to a hand rail, with the train going at a rate of about forty miles an hour, he was accosted by two brakemen who, after some conversation with him, told him he would have to get off the train; that plaintiff informed them he could not get off while the train was going so fast, and thereupon
“1. On the occasion in question, were the brakemen of the defendant required to walk along said northbound train while it was in motion between stations? A. No.
“2. On the occasion in question, were the brakemen of the defendant required to discover or eject persons from the train while the train was in motion between stations? A. No.
“3. If you find that defendant’s brakemen threw plaintiff from the train on the occasion in question, did they do so in furtherance of any duty required of them by the defendant; if so, what duty? A. No.
“4. If you find for plaintiff, state the names of the persons who threw plaintiff off the train? A. Unknown.
■ “5. If you find for the plaintiff, state upon what wrongful conduct of the defendant you base your verdict? A. Reckless .way of' putting him off the train.
“6. Do you find that on the occasion in question, plaintiff suffered his alleged injuries at the hands of persons who, with personal malice and intent to kill plaintiff, threw him off the train? A. Yes.”
The only question we have to consider is the effect of these special findings. It appears to have been contended, and that evidence was offered to the effect that none of the trainmen of defendant had anything to do with his fall from the train, but plaintiff testified that two men carrying lanterns approached him from different directions and violently threw him from the train. The jury found that he was thrown from the train by persons unknown. Assuming, as the jury seems to have done, that those who ejected him were brakemen, we have the question whether the defendant is liable for their act done not in performance of any duty they owed to the defendant,
In the early case of Hudson v. M. K. & T. Rly. Co., 16 Kan. 470, where an agent of the company assaulted and beat a person who had
“A master is not responsible for the tortious or wrongful acts of his servant when these acts are not directly authorized by him nor done in the course or within the scope of such servant’s employment.” (Syl. It 1.)
In Brown v. Railroad Co., 11 Kan. 338, 207 Pac. 196, where the rule of the cases mentioned was followed, reference was made to an approved test of liability of a master for the torts of a servant. It was said, quoting from, Wood’s Master and Servant, 2d ed., § 307:
“The simple test is, whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business; but, whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him.” (p. 341. See, also, Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153.)
In view of the findings that the tortious act was not done in furtherance of any duty of the brakemen to the defendant, but was done by them with personal malice and intent to kill plaintiff, no liability of the defendant was established, as special findings control the general verdict, the result is that the verdict must be set aside and judgment entered in favor of the defendant.