Scott v. Peabody Coal Co.

Mr. Justice Smith delivered the opinion of the court. The fundamental question presented by the record is that of liability. The evidence shows without controversy that the action of the driver, Hughes, in inviting or permitting the plaintiff to ride on the wagon he was driving was entirely outside of, and beyond the scope of the business of the defendant, and the employment of the driver. The defendant had not permitted its drivers to allow, boys to ride on its wagons. On the contrary all drivers of coal wagons, and Hughes personally, had been forbidden to do that tiling. So far as the record, shows this was the first time any attempt had been made to violate this injunction to the drivers of defendant’s wagons; and no notice of any custom or practice on the part of its drivers had been brought home to the defendant, if any such practice existed. Allowing the plaintiff to climb up on the rear end of the wagon while it was in motion was likewise entirely outside of the employment of the driver, and outside the scope of the business of the defendant, and contrary to orders. It is not claimed that the defendant had any notice or knowledge of the act of Hughes. The only inference from Hughes ’ direction to plaintiff to go to the corner and wait for him there, instead of permitting him to get on the wagon before it left the yard, is, that there was an attempt to conceal from defendant’s knowledge the fact that plaintiff was to be permitted to ride on the wagon. If Hughes was negligent in allowing plaintiff to attempt to mount the wagon while it was in motion, it was not only not the act of defendant, but it was without the knowledge of the defendant, and a part of the concealment of the servant of his violation of express orders. There is, therefore, no circumstance or fact in the case which takes it out of the general rule, so often announced and applied in this kind of cases, that the master is not to be held to respond for the negligent acts of the servant done outside of the scope of the master’s business and the servant’s employment. Brewing & Malting Co. v. Huggins, 96 Ill. App. 144. “An act done by a servant while engaged in his master’s work, but not done as a means or for the purpose of performing that work, is not to be deemed an act of the master.” Bowler v. O’Connell et al., 38 N. E. Rep. 498; Driscoll v. Scanlon, 43 N. E. Rep. 100; Chicago T. T. R. Co. v. Schiavone, 216 Ill. 275; Chicago, M. & St. Paul Ry. Co. v. West, 125 Ill. 320; Chicago R. I. & P. Ry. Co. v. Moran, 129 Ill. App. 38; Chicago City Ry. Co. v. Cooper, 128 id. 528; Chicago R. I. & P. Ry. Co. v. Brackman, 78 id. 151; Flower v. Pennsylvania R. Co., 69 Pa. St. 210. But, in behalf of defendant in error it is contended ' in argument that there are two grounds upon which the responsibility of the defendant for the act of Hughes may be based. First, a wagon and team of horses constitute a dangerous attraction to young children on the street, if operated with a want of reasonable care for their safety. Second, construing the servant’s authority in this case in the most limited way, he nevertheless had authority to drive and to stop driving when he observed or knew any one to be in danger from the progress of the wagon. In support of the first ground, Thompson on Negligence, vol. 1, sec. 25, is cited. It is sufficient to say that the citation is not applicable. In support of the second ground, the Am. & Eng. Enc. of Law (2nd ed.) Vol. 21, p. 474, is cited, where some author, after a discussion of the law of injury to children “by attractive nuisance,” further says: “that with stronger reason where the presence of a child trespasser is actually known to a party, or where such presence would have been known had reasonable care been exercised, there may be liability in negligence for injuries sustained— a doctrine acquiesced in by even the strongest advocates of the rule that there is no duty to trespassers.” The principle of liability in the turn-table cases, and other dangerous machines attractive to children and negligently left exposed, so that children are liable. to come in contact with them, is also sought to be applied to this coal wagon under the circumstances of this case. The maxim sic utere tuo ut alienum non laedas is also urged as expressing the obligation of the defendant to the plaintiff, upon the theory that any duty of the driver Hughes in connection with the wagon which would have devolved upon “his master if he (it) had been driving it personally down the street was delegated to the servant, if not expressly, then by implication of law.” In our opinion these principles and theories cannot be legally applied to the facts of this case. However greatly we may regret the injury which this poor boy has sustained, and however much we might be inclined to search for some way of compensating him for the injury, we find no warrant in the law for affirming this judgment, whereby the amount of the judgment shall be taken from the defendant and given to the plaintiff for damages for injuries which the defendant did not cause. The judgment is reversed with a finding of facts. Reversed.