89 N.J.L. 525 | N.J. | 1916
The opinion of the court was delivered by
The plaintiff, Thomas Ward, sued Matthew Cannon and the Erie Railroad Company to recover damages for personal injuries done to him, resulting from an assault and battery, by a gunshot in the groin, on Saturday afternoon, August 15th, 1914, about four-thirty. The trial resulted in a verdict against both defendants. The Erie Railroad Company only appeals. The only errors alleged are the refusals of the trial judge to grant the motions to nonsuit and to direct a verdict in favor of the defendant; upon the refusal of the trial judge to nonsuit, the defendant rested without offering further testimony and moved for a direction of a verdict, on the same grounds urged on the motion for a non-suit.
' The only point involved in the case is whether Cannon, when he fired the shot at the plaintiff, was acting within the scope, of his employment, as a detective, servant or agent of the defendant company ? Our examination of the record leads us to the conclusion that he was not such servant or agent; that it was error for the trial court not to have granted the motions to nonsuit the plaintiff and to direct a verdict in favor of the defendant. The plaintiff’s version of the occurrence, in substance, is as follows: That, on the afternoon of the day of the shooting, the plaintiff was standing under the Park avenue viaduct, or bridge, that crosses the Erie railroad, in Hoboken, near Willow avenue, which is about two hundred and twenty feet or more from the place where the shooting occurred. The shooting occurred on the property of the Erie Railroad Company. This was the beginning of the Erie railroad freight yard at Weehawken. The plaintiff heard several shots and ran over to the railroad track and saw there the defendant Cannon standing over a man by the name of Ferris, whom the plaintiff knew, and when he, Ward, the plaintiff, got within three or four feet of Cannon, Cannon fired a shot
There is no dispute, however, about the facts in the case under consideration. They all come from the plaintiff himself, and for the purposes of the motions for nonsuit, the direction of a verdict, and on this appeal the plaintiff’s testimony must be taken, not only as true, but with every fair and legitimate inference that can be drawn from the facts as testified by the plaintiff.
But we think this case is controlled by the case of Holler v. Ross, 68 N. J. L. 324, in the Court of Errors and Appeals, which is an illustrative case, and one of many in the books. That case holds where it appears when the plaintiff rests that the act of the servant was a willful one, and was not expressly or impliedly within the line of the servant’s duty or employment, there should be a nonsuit. That case was cited, subsequently, with approval by the same court, in the case of Evers v. Krouse, 70 Id. 653, holding that an act done by a servant while engaged in the work of his master, but entirely disconnected therefrom, done, not as a means or for the purpose of performing that work, but solely for the accomplishment of the independent, malicious or mischievous purpose of the servant, is not in any sense the act of the master. The rule will be found stated, in nearly the same language, with a collection of many cases in 26 Cyc. 1528. See, also, Tier v. Miller, 80 N. J. L. 691.
This case is differentiated from the class of eases cited by the plaintiff, which hold that the master is liable for a willful injury inflicted on a trespasser where authority is given by a master to his servant to eject trespassers from the premises of the former, such as Letts v. Hoboken Railroad Co., 70 N. J. L. 358; Bernadsky v. Erie Railroad Co., supra; New Ellerslie Fishing Co. v. Stewart, 123 Ky. 8; 9 L. R. A.