Yazoo & M. V. R. v. Cornelius , 131 Miss. 37 ( 1922 )

Anderson, J.,

delivered the opinion of the court.

The appellee, Frank Cornelius, recovered a judgment in the circuit court of Coahoma county against appellant, Yazoo & ‘Mississippi Valley Railroad Company, for damages for a personal injury suffered by him through the alleged wrong of one of appellant’s brakemen in shootingappellee while the latter was stealing a ride on one of appellant’s freight trains, from which judgment appellant prosecutes this appeal.

The errors assigned and argued, which are deemed of sufficient seriousness to notice, are that the court should have granted appellant’s request for a directed verdict, and, if mistaken in that contention, that the court erred in granting each and all of the instructions given for appellee (seven in number) except two, one on the form of the verdict and the other, the nine jury verdict charge. Appellant’s request for a peremptory instruction ivas based on two grounds: First, that the evidence failed to show that appellee was injured by a servant of appellant; and, second, that if that fact was sufficiently shown, still there was no liability, because the evidence showed that the servant causing the injury was not engaged at the time about the appellant’s business.

In passing on the propriety of a directed verdict for appellant, every fact proven, or which the evidence fairly tends to prove, favorable to appellee’s case, must be treated as established. So viewing the evidence, we have this case for the appellee: Appellant’s road on which appellee was traveling when injured runs from Memphis in Tennessee in a southerly direction through the western part of the state. On April 19, 1921, appellee walked from Memphis to Lake Cormorant, a station on appellant’s road, on his way to Lost Lake, another station on said road, both of which are in this state, the latter being south of the former some miles. While at Lake Cormorant appellee, without the knowledge or consent of the train crew in charge, hung onto the ladder attached to a box ear on the east side of and about midway of appellant’s through freight train No. 975 going south. Some miles south of Lake Cormorant, while appellee was thus situated and while said train was going at a speed of something like thirty-five miles an hour, some person having the appearance of a brakeman left the caboose in the rear and came over the top of the train, making his way toward the engine. When this person passed appellee he asked appellee where he ivas going, to which appellee replied that he was going down the road. This person then proceeded on his way toward the engine. In a .short while another person,- also having the appearance of a brakeman, came from the direction of the caboose, and Avas approaching the front of the train. When he got near to Avhere appellee was, the person Avho had preceded him and asked appellee where he Avas going looked toAvard this one,- and pointed down on the side of the train Avhere appellee Avas stationed, whereupon this second person leaving the caboose pulled his pistol and said (using the language of the plaintiff) :

“ ‘Get off here, you nigger, you- [calling him a vile name],’ and then shot me and that is all I heard him say.”

Appellee took these two men to be brakemen on this train because as he. testified they had the appearance of brakeman, and furthermore at Lake Cormorant, while this train was standing there, he saw both of these men giving the engineer signals for the .movement of this train. The train crew testified that none of them -sáw the appellee, that they did not know he was on the train at the time he was shot, in fact never heard of it until afterwards down the road some distance; and one or more of the train crew testified that at the time appellee claimed to have been shot there were probably as many as eight trespassers on this train.

Appellee’s evidence tended to show further that, although brakemen on freight trains on appellant’s roads had no right to remove trespassers from moving trains, the conductors alone had control of the trains; that still under the direction of the conductors it was the duty of brakemen to remove trespassers while the trains were not moving; and that without any directions.it was considered the duty of brakemen to protect their train from trespassers. We think under this testimony it was a question for the jury as to whether the appellee was shot by a servant of appellant.

In considering appellant’s second proposition, that there was not sufficient evidence to go to the jury on the question whether at the time appellee was shot by appellant’s servant the latter was engaged about appellant’s business for which he was employed, the governing principle of law should be clearly in mind. It is the law as contended by appellee that the master is liable for the tort of his servant committed within the general scope of the latter’s employment, even though the servant in committing the tort exceed his authority, and it is immaterial whether he exceed, his authority knowingly or ignorantly. The crux of the question is whether the servant commits the tort in furtherance of the master’s business about which the servant is employed. If he does, the master is liable for the tort whether the servant commits the wrong knowingly or ignorantly. This principle is supported by Richberger v. Express Co., 73 Miss. 169, 18 So. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522, where the question was fully gone into and discussed by the court. Applying this principle to the facts: Appellant’s two brakemen appeared to.be on the hunt for trespassers, one of whom found appellee and pointed him out to the other, who shot him; the one who did the shooting ordered appellee to get off before shooting. There ivas evidence to the effect that it was the duty of brakemen to protect their trains against trespassers, although they were without authority to eject trespassers from moving trains. We are of opinion that this was sufficient to make it a question for the jury whether .appellant’s brakeman shot appellee in furtherance of appellant’s business about which said brakeman was employed, or in furtherance exclusively of his own purposes. This case is distinguishable from the I. C. R. Co. v. Green, 94 So. 793, recently decided by this court. In the latter case the fireman, whose sole duties were shown to be confined about the engine, who had nothing whatever to do with protecting his train against trespassers, went forward on the train several car lengths, and, without saying anything to the plaintiff, who was a trespasser, or mailing any effort whatever to get him off of the train, shot'him. This court held the defendant not liable because the fireman was not engaged in furtherance of his master’s business about which he was employed, but in furtherance of his own purposes and ends.

In five instructions for the appellee the court told the jury in substance that, if the evidence showed the appellee was injured in the manner charged in the declaration, they should return a verdict in his favor. This was error, as held by this court in So. Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355. The court stated the reasons for so holding in the following language:

“The jury was entitled to have the law of the case, as given by the court, written out in full in the instructions. To require the jury to resort to the pleadings in the case, to patch up and piece out the instructions, is calculatéd to confuse and mislead them. In many cases the pleadings set out the cause of action and the defense thereto with such, prolixity that it would he exceedingly difficult for the jury, by reference to them, to extract therefrom the allegations sought to be incorporated in the instructions; in fact, cases arise where one learned in the law would have much difficulty in so doing. It is manifest that in such cases instructions so drawn would be most prejudicial to the rights of the opposite party.”

In one clause of instruction 2 for the appellee the court told the jury in substance that it was not necessary for the evidence to show that the brakeman who shot appellee Avas authorized to protect appellant’s train against trespassers; and in another clause they were told that, if he shot appellee AAdiile he, the brakeman, Avas “engaged in his duties about the train,” they should find for the appellee. These íavo clauses are contradictory and Avere misleading to the jury; for, if it Avas no part of the duty of the brakeman to protect the train against trespassers, he could not have been engaged about his duties Avhen he shot appellee. As stated above, the laAV is that to hold the master liable for the tort of his servant the servant must be acting in furtherance of the master’s business about Avliich he is employed ; and certainly a brakeman is not so aching in shooting a trespasser on his train if under no circumstances he is authorized to eject such trespasser or otherwise deal Avith him.

By instruction 4 for the appellee the court told the jury that, if the evidence shoAved appellant’s servant shot appellee Avhile such servant Avas in the performance of “Avhat he thought to be his duty,” they should return a verdict for appellee, even though the evidence further showed that said servant was acting beyond the scope of his duty and against the rules and regulations of appellant. If this instruction embodies a correct principle of laAV, then a railroad company Avould be liable for the tort of any of its officers or employees, from the highest to the loAvest, Avho might shoot a trespasser off of one of its trains, regardless of whether such officer or employee was engaged about the duties for which he was employed or not, provided he thought he Avas engaged about such duties. That is not the law. We know of no authority going that far. Such a rule would make the master liable for every wild caprice of his servant resulting in wrongful injury to another.

These erroneous instructions for appellee were not cured by the instructions given for appellant, for in some of their essentials they are so conflicting as to be irreconcilable; they gave the jury no definite and certain rule to be governed by.

Reversed and remanded.