Dunne v. Pennsylvania Railroad

Opinion by

Mr. Justice Stewaet,

John W. Dunne, the plaintiff, a boy fourteen years of age, at about eight o’clock of the evening of the 6th day of May, 1914, boarded a freight car of the defendant company while it was moving slowly through the Borough of Phcenixville. His purpose was to steal a ride to Norristown. He climbed to the top of the car he had boarded by means of the ladder at the side, and seated himself at the end of the car, with his face towards the engine and his feet in the space between the car on which he was riding and the car next in front. For security he held to the brake wheel on his left. The train was composed of some twenty-six or twenty-eight cars, mostly box cars, and the one on which plaintiff sat was far to the rear of the train. While so seated a man carrying a lantern in one hand and a stick in the other approached along the top of the car next in front, and seeing the hoy called in a loud tone to him to get off the train, and with that threw the stick at him. The hoy thereupon hastily made his way to the ladder at the side by which he had reached the top of the car, and was descending by it when he was struck by the end of an iron girder of a bridge which the train had just reached. He was knocked from his position, fell under the wheels of the train and thus received his injuries. At the time of the accident the train had reached a speed of about twenty miles an hour. Such are the facts as found by the jury. The negligence charged was the conduct of the brakeman or other employee of the defendant company in compelling plaintiff to leave the car while it was in rapid motion. The action was by plaintiff, by his father and next friend, and by the father in his own right, and resulted in verdict for each. Judgment n. o. v. for the defendant was refused, and judgments on the verdict were accordingly ordered. The appeal raises two distinct questions: first, was there sufficient evidence in the case to support a finding that the person who ordered the plaintiff to leave the train and threw the stick at him was a brakeman or other employee of the defendant company? and second, if a brakeman or other employee, was there sufficient evidence to justify a finding that in requiring the boy to leave the train, he was acting in the line of his employment? As to the first of these, a brief reference to the evidence will show that it abundantly warrants a reasonable inference favorable to the plaintiff’s contention. To that extent plaintiff was obliged to go with his proof in order to require a submission of the question, but no further. The man in question was in a place where a brakeman in the line of his duty is often required to be. This can be said of no othér employee. The brakeman’s duty requires him to frequently pass from one car to another along the line of the train while it is in motion, and this he can do only as he walks upon the top or roof of the cars. Presumably, from the place he occupied, this man was an employee, and a brakeman as well. There is not a suggestion in the evidence that he was any othei*. Not only was he in the brakeman’s px*oper place, but he spoke as one in authority, concerned to protect the property and interests of the railroad company. He carried in his hand a lighted lamp, a circxxmstance which to any one at all familiar with railroad freight traffic would be strongly corroborative of the plaintiff’s statement, that the man was a brakeman. In the absence of anything in the evidence, even in the remotest way, indicating that he was something else, a very safe inference would be that he was a brakeman. The suggestion that he may have been a trespasser like the plaintiff himself, is at best the suggestion of a possibility too remote to entitle it to serious thought in connection with the question we are now considering, especially since it rests on nothing that can be found in the evidence. The facts and circumstances we have indicated, not only warrant a reasonable inference that the man was a brakeman in the employ of the defendant company, but go far to exclude other theory. They furnished the jury with ample warrant for their finding. As to the second, conceding, for purpose of this case only, that a burden rested on plaintiff to show that the brakeman in requiring the plaintiff to leave the car when it was ixx motion was acting within the scope of his employment, this burden was fully met if the evidence on both sides be considered. It is only necessary to refer to the testimony of the conductor of the freight train, a witness called by the defendant. This witness testified that it was part of the duty of brakemen to require trespassers to leave the train when it was at rest, and that he had given his brakemen specific orders never to require them to leave the train when it was in motion. His instructions were that they should at no time, even when the train was at rest, apply force in expelling them. Just how they were to be expelled when they declined to go he did not explain, but he made it clear enough that it was expected of the brakemen when the train was at rest and trespassers were discovered, that they should warn them off. The brakeman in this case then when he told plaintiff to “get off,” was right in the line of his employment, but was exceeding his authority, only, however, because at the time the train was in motion.

The general principle is that a master is responsible for the torts of his servant, done in the course of his employment with a view to the furtherance of his master’s business, and not for a purpose personal to himself, whether the same be done negligently or wilfully, but within the scope of his agency, or in excess of his authority, or contrary to the express instructions of the master. This doctrine is clearly recognized in Philadelphia, Wilmington & Balto. R. R. Co. v. Brannen, 1 Sadler 369, where it is said, “It is well settled law that the master is liable for the act of his servant within the general scope of his employment, although the specific act be done at a time and in a manner contrary to an express order of the master. Third persons can see and know the general scope of the employment in which the servant is engaged, but they have no means of knowing the secret orders given him. They are, therefore, not affected by such orders.” Further citation of authority is unnecessary. The assignments of error are overruled, and the judgment is affirmed.