Girvin v. New York Central & Hudson River Railroad

Williams, J.: The action was brought to recover damages for injuries to the plaintiff, alleged to have been caused by the negligence of the defendant. The plaintiff was a boy fourteen years of age. He was driven off one of the defendant’s trains while it w.as in motion by a brakeman in charge, and sustained a severe fracture of the right leg,, confining him to the hospital for ten months and permanently disabling and impairing the use of that member. The train in question was known as the “ Solvay Pull.” It was [563] a freight train composed of box and flat cars, employed in the transportation of material and supplies between the yards of the defendant in the. city of Syracuse and the works of the Solvay Process Company, a large manufacturing concern located at the village of Solvay, adjoining the city limits-on the west. The. boys who lived in the vicinity of defendant’s yards often rode up from Syracuse to Solvay and. back upon this train, and this was frequently permitted by the employees in charge of the train. This particular brakeman had seen the boy on the train before and did not disturb him. Sometimes he objected to the boys riding on the train and chased them off, and sometimes he did not. Upon .the day of the accident the plaintiff, with some other boys about his age, rode from .Syracuse to Solvay upon this train, and remained playing about until it was ready to return. As the train started back towards the city the boys, including the plaintiff, got aboard, and the plaintiff took a seat upon a log which rested upon two flat cars. While he was sitting there the brakeman in charge of the train approached from the rear, and as he saw the boys hallooed at them and ran at them in a threatening manner to drive them off the train, which was moving quite slowly. The other boys, warning the plaintiff of the brakeman’s approach, jumped off the train. The plaintiff ran forward upon the flat car. The brakeman followed him up, shouting angrily at him, and coming closer to him as they both ran along. They went upon and along the flat car next in front of the one on which the plaintiff had been seated, and as the plaintiff came to the forward end of the car the brakeman came close to him, and was reaching his hand to seize the plaintiff when the plaintiff jumped from the car to the ground, and the brakeman jumped after him. Both left the car about the same time and reached the ground together, the brakeman coming in contact with the plaintiff, before they reached the ground, and landing upon the boy. As they struck the ground the plaintiff’s leg was fractured. The brakeman seized the plaintiff, raised him up, kicked and struck him, and then dropped him and jumped back upon the train. This is a fair statement of the facts, as claimed by the plaintiff at the trial. It cannot be said, under the pleadings and the evidence, that.it could be found that the plaintiff was injured by being frightened from the train and merely jumping to the ground. The plaintiff must stand upon his pleading and the proofs [564] given in his behalf.' The nonsuit was granted upon the sole ground that the brakeman was not acting within the scope of his authority when he followed the plaintiff from the car and jumped upon him, "thus fracturing his leg. This is the only question involved in this appeal. In Mott v. Consumers’ Ice Co. (73 N. Y. 543) it was said : “ The rule recognized in all the recent cases, and which does not materially conflict with any of the older decisions, although it may qualify some of the intimations and casual expressions of illustrations of the judges is that, for the acts of the servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible, whether the act be done negligently, wantonly or even willfully. * * * But if a servant goes outside of his employment, and without regard to his service, acting maliciously, dr in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible; so that the inquiry is, whether the wrongful act is in the course of the employment, or outside of it, and to accomplish a purpose foreign to it. In the latter case the relation of master and servant does not exist so as to hold the master for the act.” This is a concise statement of the law, which has been cited and approved in all the later cases. The facts in this case are not precisely like those in any of the cases cited by counsel on either; side, and the facts of no two of the cases are just alike. The only question here is, whether the law as we have quoted it makes the master liable in this case. It was said in Rounds v. D., L. & W. R. R. Co. (64 N. Y. 129): “ If the master, when sued for an injury resulting from the tortious act of his servant while.apparently engaged in executing his orders, claims exemption Upon the ground that the servant was, in fact, pursuing his own purposes, without reference to his master’s business, and' was acting maliciously and willfully, it must ordinarily be left to the jury "to determine this issue upon a consideration of all the facts and circumstances proved.” Looking now to the facts of this case, it appears that the defendant was troubled, not on this single occasion but constantly, by the boys jumping upon and off of. its trains and riding upon its train [565] between Syracuse and Solvay. It seemed to be impossible to keep them off. If they were driven off one part of a train they would climb upon another part. There was so much of this trouble that the brakemen were at their wit’s ends to deal with it. It was the duty of the trainmen not only to drive the boys off, but to keep them off so far as it was possible for them to do so, and apparently the brakeman, on the occasion in question, was intent upon the performance of this duty and Was thus engaged in his master’s business, and was acting within the general scope of his employment. He was trying to drive the boys off the train and to keep them off. He very likely acted negligently in jumping upon the plaintiff after the plaintiff left the car, but it- is difficult to see how he was acting maliciously in order to effect any purpose of his own outside of the attempt to drive the plaintiff off .the train and keep him off. He had no purpose foreign to such duty to perform. He did not, in the language of the court in the Rounds case, “ under guise and cover of executing his master’s orders, and exercising the authority conferred upon him, willfully and designedly, for the purpose of accomplishing his own independent malicious or wicked purposes,” inflict the injury upon the plaintiff. He was so bothered by the boys and by the plaintiff that on this occasion he lost his temper, and, under the influence of passion, acted negligently, recklessly and without judgment or discretion; but the master was not thereby excused from responsibility for his acts. It was said in the Hounds case: “ It is, in general, sufficient to make the master responsible that he gave to the servant an authority, or made it his duty, to act in respect to the business in which he was engaged, when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authdrized the áct of the servant, and he will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his duty, or inflicted an unnecessary injury in executing his master’s orders'.' The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the [566] strict line of liis duty, or authority and inflicts an unjustifiable injury upon another.” Within these rules of law the court should have determined that the defendant was liable for the act of the brakernan, or at least should have left it to the jury to say, under the circumstances proved, whether the injury was inflicted while the brakernan was acting within the scope of his authority, which was to drive the boys off the train and keep them off so far as lie was. able to do. It was not within the province of the court to hold, as matter of law, that the brakernan was not acting within the scope of his authority, and that, therefore, the defendant was not.liable for his act in inflicting the injury. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred, except McLennan and Spring, JJ., dissenting.