Holmes v. Wakefield , 94 Mass. 580 ( 1866 )

Hoar, J.

The general rule of law that, where a master employs a servant to do an act which involves the use of force against the person or property of another, and the servant, in the course of his employment, uses force in a manner or to an extent unlawful and unjustifiable, both are answerable as trespassers, has been settled in this commonwealth in the cases of Moore v. Fitchburg Railroad, 4 Gray, 465, and Hewett v. Swift, 8 Allen, 420. It was admitted that the defendant Wakefield was the conductor in charge of the train; and the only question, therefore, is whether he was in the execution of the duty required of him by the regulations of the corporation when he caused the plaintiff to leave the cars. Among the “ special instructions v given him by the railroad superintendent was this: “ The conductors will not allow any person to ride in any freight car attached to their train.” The defendants argue that this direction was intended as a security for the freight; that the conductor had no charge of passengers; and that, at the utmost, it only authorized him to prevent persons from getting on to the cars, and did not require him to remove them, especially after the train was in motion.

But we do not think the effect of the instruction can be so limited. It plainly made it his duty to prevent any person’s riding on a freight car. This he might do in any lawful and proper manner; by the use of reasonable force to prevent getting upon the car, or in removing a person who had got upon the car in violation of the rule. The wrong to the plaintiff consisted in using force unreasonably; that is, at a time and under circumstances which made it dangerous to his life or limb. A test of this may be found by inquiring whether the plaintiff could have maintained his action against Wakefield merely for ejecting him from the car, without proot or personal injury and we think it clear that he could not. The ruling at the trial was therefore right, and the case falls within the principle of the decisions before cited. Exceptions overruled.