Belt Railway Co. v. Banicki

Mr. JusticeWaterman delivered the opinion of the court. Counsel for appellee say: “Aside from plaintiff, three witnesses whose credibility is not impeached by a single circumstance, testify with practical unanimity to facts from which it appears beyond doubt that the watchman, either by the grossest kind of negligence, amounting to wantonness, or willfully and maliciously, inflicted a serious wound on plaintiff, by shooting him in the knee. It also appears by uncontradicted testimony that it was the watchman’s duty to keep out of the yard in which the shooting occurred, people who had no business there.” According to all the evidence appellee was, when injured, a trespasser. Such being the case appellant owed to him no duty except not to wantonly or willfully inflict injury upon him. Ill. Central Ry. Co. v. O’Connor, 189 Ill. 559-564; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512. That its servant, acting in the line of his duty, did wantonly and willfully injure appellee is the contention of his counsel. While it is true that under an allegation of negligence a recovery can be had upon proof of gross negligence (C. B. & Q. Ry. v. Carter, 20 Ill. 390; R. R. I. & St. Louis Ry. Co. v. Phillips, 66 Ill. 548) it does not follow that under an allegation of injury resulting from negligence a recovery can be had by a trespasser. C., B. & Q. Ry. Co. v. Johnson, 103 Ill. 512-522. “ In negligence there is no purpose to do a wrongful act, or to omit the performance of a duty.” “ ^Negligence, even when gross, is but an omission of duty.” “ When there is particular intention to injure, or a degree of willful and wanton recklessness which authorizes the presumption of an intention to injure, generally, the act ceases to be merely negligent and becomes one of violence or fraud.” C., B. & Q. Ry. Co. v. Johnson, 103 Ill. 512. There are degrees of negligence, as there are of care, but the words slight negligence, ordinary negligence and gross negligence are each descriptive of an omission, a neglect, without intention to do harm. Gross and great negligence are relative' terms. One is the same as the other and each is descriptive of negligence only. In Wilson v. Brétt, 11 M. & W. 113, Lord bran-worth said that gross negligence is ordinary negligence With a vituperative epithet. See also, Beal v. South Devon Ry. Co., 3 H. & C. 327; Grill v. General Iron Screw Collier Co., L. R. C. P. 1; Steamboat New World v. King, 16 Howard U. S. 469; Austin v. Manchester Ry. Co., 16 Jurist 766. We think gross or great negligence is something more than ordinary negligence; nevertheless it is a statement of negligence and nothing more. Appellee, being a trespasser, introduced no evidence warranting a recovery under either of the first four counts of the declaration. The defendant asked the court to instruct the jury as follows: “ If you believe from the evidence in this case that the plaintiff, after being ordered to leave the premises of the defendant immediately started peaceably to do so, without opposing or resisting the watchman, Kenney, and that the plaintiff continued thus to go toward the fence alongside the defendant’s railway, and that just as he neared such fence, or was about to step over the same, the watchman wantonly, without lawful excuse or authority, and merely to satisfy some personal spite, or feeling of anger toward the plaintiff or his companions, fired the pistol toward the plaintiff and inflicted the wound of which the plaintiff complains in this case, and that such act on the part of the watchman was not necessary or proper to the protection of the cars in said yard, nor done in the performance of any duty in that respect, the plaintiff is not entitled to recover in this case, and your verdict should be for the defendant.” This instruction was refused. A master is liable for the act of his servant done in the course of his employment about his master’s business. Wood on Master and Servant, 522. The master is, in this State, responsible for acts of the servant done within the general scope of his employment, while engaged in his master’s business, with a view to the furtherance of that business, whether he acts willfully or wantonly. A master is not liable for acts of his servant not within the scope of his employment. Tuller v. Voght, 13 Ill. 277-285; Oxford v. Peter, 28 Ill. 434; C., M. & St. P. Ry. Co. v. West, 125 Ill. 320-323; N. C. C. Ry. Co. v. Gastka, 128 Ill. 613-617; C., B. & Q. Ry. Co. v. Casey, 9 Ill. App. 632; Foster et al., Extrs., v. The Essex Bank, 17 Mass. 478-508-510; The Mechanic’s Bank v. Bank of Columbia, 5 Wheaton (U. S.), 326; Bolinbroke v. Swindon Local Board, 8 Ad. & Ellis, 512; Bailey v. Manchester Ry. Co., L. R. 7, C. P. 420; Evans’ Ewell on Agency, 489, marginal paging; Wood on Master and Servant, 522; 9th Ed. Story on Agency, Sec. 456-456a; Vol. 14, page 818-25, 1st Ed. Am. & Eng. Ency. of Law; Thames Steamboat Co. v. Housatonic Ry. Co., 24 Conn. 40, 53, 54, 56; McCann v. Tillinghast, 140 Mass. 327; Cleveland v. Newson, 45 Mich. 62; Cantrill v. Colwell, New Ed., 40 Tenn. 471; Golden v. Newbrand, 52 Ia. 59. The mere employment of a watchman to guard property and keep away trespassers does not involve an authority to shoot trespassers; and authority for such shooting can not be presumed. In the present case there was no evidence either of authority to shoot, or that the defendant knew that the watchman carried firearms. • The shooting of a trespasser who is actually leaving the premises is not within the general or implied authority of a mere watchman. In Golden v. Newbrand, 52 Iowa, 59, an action against a master for damages, a watchman employed to guard a brewery shot one Golden, who had just thrown a brick into the brewery. Golden was shot while retreating from the brewery. The court said : “ We think the fact that the deceased was retreating from the brewery at the time the fatal shot was fired shows conclusively it was not fired for or with the intent of protecting the brewery or in the line of Eoenspir’s (the watchman’s) duty.” A majority of the court are of the opinion that the following instruction asked by defendant should have been given: “ The court instructs you that the law is that the master is not responsible for the acts of the servant done outside the master’s business, and to accomplish some end personal to the servant himself; that the law does not imply any authority from the master to the servant to commit an assault upon a person who is not injuring or threatening to injure the master’s property and who is not interfering with the servant’s performance of his duty to the master; and if, in this case, you believe from the evidence that the plaintiff, Banicki, was peaceably leaving the railroad property of the defendant, and was not threatening the defendant’s property nor refusing to go promptly outside its right of Way, nor interfering in any way with the performance by the watchman of his duties in the defendant’s railroad yard, and that under these circumstances Kenney tired the shot that struck the plaintiff for some purpose of his own, the plaintiff can not recover in this case, and your verdict should be for the defendant.” The judgment of the Superior Court is reversed and the cause remanded.