22 S.D. 256 | S.D. | 1908
This is an action instituted by the plaintiff to recover damages for an alleged personal-injury sustained by him by reason of an assault by one (of the section men, claimed to have been employed by the defendant under the direction of the foreman of the section crew. Verdict and judgment being in favor of the plaintiff, the defendant has appealed.
This action was before us at a former term of this court on an appeal from an order overruling the demurrer to the 'complaint, pnd which order ‘was reversed by this court. The decision is reported in 18 S. D. 420, 100 N. W. 1097, 70 L. R. A. 731. On the going down of the remittitur, the plaintiff amended his complaint and at the commencement of the trial the defendant objected to any evidence under the -amended complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and that the judgment in the former action was -res adjudicata and conclusive in .the present action. This contention of the ¡appellant is in our opinion untenable. The amended complaint contains very material allegations that were not contained in the original Complaint, and which have the effect of bringing the case within the rule holding a defendant liable for the act of his servant or employe. The principal 'amendment is made in paragraph 5 of the complaint, and is as follows: “And after being advised by the said Henry 'Doust and said crew at said time that they were instructed to construct said fence by said defendant company, and proposed and intended so to do, notwithstanding the protest of the 'said plaintiff, for 'said Berit Pramhus, plaintiff said to said crew then and there that he
The -contention (of the appellant that the complaint as amended does not state facts sufficient to constitute a cause of action is in our opinion untenable. The true rule as to the.liability of a master for the acts of his servant seems to be that for the acts of the servant within the general scope of his employment while engaged in his master’s business, and done with the view of the furtherance of that business and in the (master’s interest, the. master will be responsible, even if the acts be done wantonly and willfully. Rounds v. D., L. & W. Ry. Co., 64 N. Y. 129, was a case in which the plaintiff jumped upon the platform of a baggage car on the defendant’s road to ride to a place where the cars were being backed to make -up a train. The -rules of the company required the. baggage master to allow no person on the baggage car. The baggage-man ordered the plaintiff off while the car was in m'dticfa. ■ A pile
It is further contended by the appellant that the plaintiff’s evidence does not support the verdict and judgment, but in our opinion ithis contention i¡s untenable. The evidence fully sustains the allegations of the complaint, that the plaintiff was directed by Berit Pramhus to go and forbid the workmen from erecting the
The contention of appellant that no express authority was shown in the foreman to construct this fence by the defendant company, and that, therefore, it is not liable, is untenable. It is sufficient for the plaintiff to 'show that the foreman, or the section boss on the road was directing the work and giving orders to the men under his charge to erect ¡the fence. The reasonable and fair inference from these facts which the jury was authorized to draw was that the section boss was performing his duties under the direction of the defendant. .
The court in its charge to -the jury stated the rule of law applicable to this case very fairly and clearly, and under the evidence and -the charge of the court we are of the opinion that the verdict of the jury was fully justified.
Rinding no error in the record, the judgment of the court below and order denying a new trial -are affirmed.