Wiley v. Pere Marquette Railway Co.

Wiest, J.

Samuel Spaulding, an employee of defendant company, styled by himself a detective, and designated by the company a patrolman, armed with a revolver, carried under permit, called at the door of a small one-room building located on the railroad company property, but leased to another company and occupied by plaintiff, her husband and little child, and asked permission to search the room. Receiving no reply from plaintiff, who was seated upon a couch, he knocked a block from the hand of a small child standing in the doorway, and, while stooping, ostensibly to pick up the block, but in reality to peek under the couch, his revolver fell from its holster, and, not being provided with any safety device, exploded when it struck the floor, and shot plaintiff in the thigh, causing a painful wound, from which the bullet has not been extracted, and which, it is claimed, will cause her permanent discomfort. Plaintiff was awarded a verdict of $2,500. Defendant moved for judgment notwithstanding the verdict, and also for a new trial. The court entered judgment for defendant on the ground that the patrolman was not, at the time of the accident, acting within the scope of his employment. Plaintiff reviews by writ of error.

We think the trial judge was in error in entering judgment for defendant. Spaulding’s testimony was to the effect that he was about the business of defendant company intrusted to him, and had reason for looking in this home for stolen goods, and was there on such errand. Without further stating his testimony, we think it carried to the jury the question of whether, at the time of the accident, he was acting within the scope of his employment. The learned trial judge left this question to the jury, and the verdict, supported by evidence, fixed the fact that Spaulding was acting within the scope of his employment. The question was one of fact and not one of law. There is, however, another ground supporting recovery by plaintiff. It was the duty of defendant company, in arming its employee, to so supervise the method and means of carrying the firearm as to safeguard persons from injury arising from its accidental discharge.

The employee was carrying the revolver under permit obtained by defendant. The revolver was carried in an open holster near the left shoulder, from which it would fall when the employee stooped over far enough, and from which it had so fallen on a previous occasion. The revolver was not provided with a safety device calculated to prevent its discharge upon striking the floor. There was a positive duty resting upon defendant to supervise the carrying of this dangerous instrumentality by its employee, for the firearm was in the service of defendant and carried by its servant under permit obtained for- that purpose. This duty to protect third persons from injury, by reason of careless carrying of an unsafe revolver, was not performed by defendant, and plaintiff, having been injured because this duty was not performed, is entitled to recover damages, irrespective of whether the act was or was not within the scope of the servant’s employment. Plaintiff counted on the careless way of carrying the revolver and its want of safety devices.

Defendant has also assigned error upon the refusal of the trial court to give requested instructions to the jury. We find no error with reference to such requested instructions entitling defendant to a new trial. Defendant’s motion for a new trial not having been passed on by the circuit judge, we may not consider the question of whether the verdict is against the great weight of the evidence. Upon this record plaintiff is entitled to judgment on the verdict.

The judgment entered is reversed, with costs to plaintiff, and the case is remanded to the circuit with direction to enter judgment on the verdict.

Bird, c. J., and Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred.