Hughes v. Murdoch Storage & Transfer Co.

Opinion by

Mr. Justice Kephart,

The principle enunciated in Petrowski v. R. R., 263 Pa. 531, and Minute v. R. R., 264 Pa. 93, does not control this case. Where infant trespassers are found on board a freight train by a man duly garbed as an employee, he may, in the performance of his duty of guarding and protecting the train, eject such persons, and it is immaterial how the boy got upon the cars, whether with or without permission. It is the duty of the employee to put him off, and when so acting he is within the scope of his employment, but in putting him off he must commit no negligent act that is likely to cause the infant injury. In the case at bar, the driver of defendant’s storage and transfer truck permitted or invited plaintiff’s son, fourteen years of age, to ride on the truck. When the boy reached his destination, the car stopped and he attempted to alight. The driver, it seems, did not give him sufficient time. He started the truck just as the boy was part way down. By so doing, it threw the lad under the wheels, causing the injury complained of. To sustain a recovery, under these circumstances, it should appear that the act of the driver, in permitting the boy to ride, was fairly within the scope of his employment: Wind v. Steiert & Son, 71 Pa. Superior Ct. 194; Byrne v. Pittsburgh Brewing Co., 259 Pa. 357; Scheel v. Shaw, 60 Pa. Superior Ct. 73. If he so acted, the master owed a duty through his agent to see that no negligent act should happen that might injure the invitee. The test is not that, when the invitation was given, lie was engaged in the course of bis employment in bis master’s business, but was tbe invitation or its consequences in furtherance of tbe master’s business, so that it might be said to be impliedly within bis authority? Tbe master is bound by tbe acts of bis servant in tbe course of bis employment, but be is not bound by those outside of such employment. Tbe servant (a truck driver) has no right to impose upon bis master’s onerous liability by bolding him responsible for tbe safe carriage of any person be may see fit to accept as a passenger. Such persons, so invited or permitted to ride, should know of this obvious lack of authority from tbe position tbe man holds and tbe character of bis employment. If there was some risk in riding, tbe passenger assumed whatever risk there was, as well as that which came from bis alighting and leaving tbe truck. Tbe servant’s duties were those of an ordinary driver of a truck, and at tbe time of tbe accident be was engaged in tbe performance of such duties. He bad no implied authority to permit boys to ride on bis truck, and acted beyond tbe scope of bis employment when be did so. Nor does tbe fact that, although a trespasser, tbe boy was safely on tbe truck, alter tbe case. Tbe master, short of wantonness, did not owe him tbe duty of safe carriage or to see that be safely alighted. Tbe boy’s appearance on tbe truck was a trespass, created by tbe act of tbe driver for bis own personal pleasure, comfort or convenience, and tha,t of tbe boy. He continued as a trespasser and tbe driver’s subsequent conduct in negligently starting tbe truck before tbe boy was off, was part of tbe same trespass. None of tbe acts occurred in tbe execution or furtherance of tbe master’s business: Kiernan v. Ice Co., 74 N. J. L. 175; Driscoll v. Scanlon, 165 Mass. 348. Tbe master was under no duty to take care of tbe boy by keeping him off tbe truck, nor liability for injuries -resulting from bis voluntarily leaving it. It is not like a case where tbe master is engaged in tbe transportation of passengers or freight, where tbe scope of tbe agent’s authority has been extended as we have indicated. Thus far, under our law, the agent’s authority presumptively does not include that claimed for here.

Judgment affirmed.