| Pa. | May 6, 1878
delivered the opinion of the court,
Although the point was not directly made to the court that there was no evidence tending to prove that it was within the line of a brakeman’s duty to remove trespassers or other persons from the cars of the defendants, yet under the particular circumstances disclosed by. this record, the question was sufficiently raised by the second and third points, which should have been affirmed. In substance they were prayers for instructions to the jury that it was no part of a brakeman’s duty to throw coal at any person on the train to which he was attached, or to- admit persons to, or remove them from the train. A careful examination of all the testimony has shoAvn that not a word contained in it tended to prove that the brakeman whose conduct is complained of, in the cruel and wanton assault he made on the plaintiff, was acting in pursuance of any
It was said by Maule, J., in 13 C. B. 247, that a master is liable for the act of his servant, “ even though the servant, in the performance of his duty, is guilty of a deviation, or a failure to perform it in the strictest and - most convenient manner. But where the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible, for the negligence of the'servant in doing it.” Thus, in the leading case of McKenzie v. McLeod, 10 Bing. 385, the master was held not to be liable for the negligence of a servant who burned a house down in trying to cleanse a chimney, it being shown that the servant’s duty was not to cleanse the chimney, but to light the fire. The legal rule was stated in the opinion of Alderson, J., in that case to be, that the act of the servant is the act of the master where the duty is defined by precise orders ; and where something is directed to be done, and the manner of doing it is left wholly to the discretion of the servant, the judgment exercised may be considered the judgment of the master, and he must be answerable. “ But,” the judge added, “where he has neither ordered the thing to be done, nor allowed the servant any discretion as to the mode of doing it, I cannot see how in common justice or common sense, the master can be held responsible.” Where a coachman, after having used his master’s horse and carriage in going upon an errand for his master, instead of taking them to the stable, used them in going upon an errand of his own, without his master’s knowledge or consent, and while doing so he negligently ran into and injured the plaintiff’s horse, it was ruled that the master was not liable : Sheridan v. Charlick, 4 Daly 338" court="None" date_filed="1872-12-15" href="https://app.midpage.ai/document/sheridan-v-charlick-6140223?utm_source=webapp" opinion_id="6140223">4 Daly 338. The same rule has been applied in
Upon the facts developed on the trial, although the plaintiff had no right to be on the cars, the jury would have been justified in finding, as they did, such reckless, gross and culpable negligence as to render the defendants liable for damages, if the brakeman had been shown to have been acting in the line of his duty and within the scope of his employment. With no evidence that he was só acting, and with the testimony of the assistant superintendent to the contrary, it was a mistake to submit the question whether the wrongful act was or was not done in the exercise of a duly delegated authority.
Judgment reversed and venire facias denovo awarded.