Brunner v. American Telegraph & Telephone Co.

Opinion by Mr. Justice Williams, This case -was tried with care and discrimination by the [451] learned judge of the court below, but in one particular at least we think he fell into error. The plaintiff’s right to recover rested on a theory which drew its support mainly from inference. There was really no controversy over the important facts in the case. The plaintiff was thrown from his buggy and injured because of the sudden fright of his horse which made it uncontrolable. The fright was caused by the explosion of a percussion cap of the kind used in blasting with dynamite, near the highway on which the plaintiff was driving, and but a little way in front of him. The cap was exploded by Delaney who was an employee of the defendant company. But the defendant denied its liability for Delaney’s act, alleging that it was not done within the scope of his employment or in the service of the company but for his own amusement or the gratification of an idle curiosity. The contest narrowed down to this question. In support of their position the company proved that it had two gangs of workmen employed in the construction of its line who were independent of each other and with different duties. One, known as “ the digging gang,” dug and prepared the holes into which the poles were to be set. The other, known as “ the pole gang,” came behind and set or planted the poles in the holes that had been made ready by the digging gang. With the first of these gangs was a man known as the dynamite man, who had charge of, carried and exploded the dynamite used in blasting such rocks as the digging gang could not dispose of with pick and bar. Delaney belonged to the pole gang. On the morning of Monday the sixteenth day of September, 1889, both gangs came on the line to resume work. The digging gang went forward to dig at the place where they left off on Saturday night. Livingston, the dynamite man, went to a barn not far from the highway where his cartridges and caps had been stored to get a supply for the day’s work among the diggers. When he came out the members of the pole gang or some of them were standing near and unemployed. He remarked that some of the caps had water in them and were worthless. Delaney said to him “ give me some of them caps.” He gave him one or more of them and a piece of fuse and, as he testifies, went forward towards the digging gang some little distance, when he heard a report. Delaney and another man whose name was Grofton had ex [452] ploded a cap, and the fright of the horse and the injury to the plaintiff had resulted. It was> quite clear that the scope of Delaney’s employment did not include the use of explosives for ,any purpose. Unless therefore'the explosion of the cap could be connected with Livingston so as to become his act, there was no way by which the folly or negligence of Delaney and Grofton could be charged to the company defendant. To make the necessary connection the theory was suggested that Delaney’s object was to determine whether the caps were valuable or not, and his experiment was in the interest and for the benefit of the company, and the information of Livingston who stood by and tacitly authorized it to be made. There was no direct evidence in the support of this theory but the learned judge submitted the question to the jury with the instruction that if they should find from the facts before them the cap was exploded in the presence of Livingston and as a test of the usefulness of the caps that had been wet, they would be justified in finding in favor of the plaintiff. This fixed the attention of the jury, and poised their verdict, upon the character of the act of Delaney in exploding the cap. Livingston and Delaney were the persons who of all others were capable of throwing light upon this subject. The testimony of Livingston was strongly against the theory of the plaintiff. The deposition of Delaney had been taken and the defendant offered to show by it what the character of his act really was. He had testified that he did not obtain and explode the cap in the course of his employment, nor at the request of any officer or agent of the company, nor yet for any useful purpose, but for his own amusement and to satisfy his own curiosity. This was the precise point to be settled. The fact was peculiarly within his knowledge. He had stated what the fact was. The court however excluded his answer, and the ruling is the basis of the first assignment of error. The answer should have gone to the jury. The witness had stated the fact of his employment by the defendant, and the fact that he exploded the cap; and the jury were being asked to infer, from these answers and the surrounding circumstances, that his act was in effect the act of Livingston, done in the line of Livingston’s employment and for his guidance. It was incumbent on the defendant therefore to show what the fact was, and explain fully the con [453] duct of Delaney, and for this purpose it was competent to show by him that he was gratifying an idle curiosity and diverting himself and those about him. His credibility was for the jury but his testimony upon this point was relevant and competent. The first assignment of error is sustained. The extract from the charge embodied in the second assignment states as a fact that Livingston when he gave the cap to Delaney had just been making an experiment to determine whether the caps would explode. As we understand Livingston’s testimony he distinctly denies that he had made such an experiment. There was some evidence that a previous explosion had been heard but whether it was a cap, and if so by whom it was exploded, does not appear. The question was for the jury and the statement by the court was necessarily harmful to the defendant. The third and fourth assignments of error are not sustained. The points on which they are predicated assumed a fact which the jury might find, and actually did find, to be otherwise. The question which the learned judge submitted was in the case. The jury had the witnesses before them, and whether the inference was a fair one from all the testimony that Delaney was acting for and in the stead of Livingston in exploding the cap and for the purpose of determining the value of the caps which Livingston at first thought were ruined, was for them to determine. The judge could not, upon the evidence, determine this question and give a binding instruction, as these points requested him to do, without invading the province of the jury. It is true the direct evidence was against the plaintiff’s theory, but there was a basis, though a pretty narrow one, for the inference to rest upon. Whether it was a sufficient basis was primarily for the jury and if their conclusion was conscionable, though the judge might think the preponderance of the evidence was the other way, their verdict would not be disturbed. The judgment is reversed and a venire facias de novo awarded.