McFarlan v. Pennsylvania Railroad

Opinion by

Mb. Justice Mitchell,

For a wilful or intentional trespass by an employee outside of the line of his duty under his employment it is settled that the employer is not responsible, even though it be committed while the servant is in the exercise of his employment. But in the latter case, its wilful and separate character must appear.

Plaintiff declared for an unprovoked assault upon him by the conductor as he was about to enter the train and the defense was a total denial that any such assault took place. Appellant now argues that as the jury have found in the plaintiff’s favor that the assault was committed, we must take the plaintiff’s version of it, and that makes out a clear case of wilful and unprovoked trespass outside the line of the conductor’s employment. But this view ignores some of the evidence. The jury were bound in finding their verdict to consider and determine not only the fact of the assault but also its character and the circumstances under which it was made. The plaintiff testified that he was an intending passenger and was in the act of entering the car. Prima facie, therefore, he was within the authority and control of the conductor in the course of his employment, and there was other testimony to the same effect. Thus Mrs. Barton, a witness, testified that when the conductor caught hold of the plaintiff he said: “ Stay off until the people get out.” This was evidence that what the conductor did was not only in the course of his employment but in the supposed performance of his duty in the orderly management of the passengers leaving and entering the train. If in so doing he used unnecessary violence the employer would be liable, and the jury have so found.

Judgment affirmed.