Girvin v. New York Central & Hudson River Railroad

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 14 years of age. He was driven off one of the defendant’s trains while in motion, by a brakeman in charge, and sustained a severe fracture of the right leg; confining him to the hospital for 10 months, and permanently disabling and impairing the use of that member. The train in question was

In Mott v. 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 expression 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 a 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 mali

ciously, or 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. Railroad 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 on 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 trains, 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 wits’ 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 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 Bounds Case, “under the 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 purpose,” 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 Bounds Case:

“It is, in general, sufficient to make the master responsible that he gave to the servant 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 authorized the act 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, ór under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his 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 brakeman, or at least should have left it to the jury to say, under the circumstances proved, whether the injury was inflicted while the brakeman was acting within the scope of his authority, which was to drive the boys off the train, and keep them off, so far as he was able to do. It was not within the province of the court to hold, as matter of law, that the brakeman 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.

Judgment and order appealed from reversed, and new trial ordered, with costs to abide event.

ADAMS, P. J., and LAUGHLIN, J., concur.

(dissenting). On the 8th day of December, 1897,. the defendant was engaged in running a freight train, composed of box and flat cars, from the works of the Solvay Process Company, adjoining the city of Syracuse on the west, to its yards in said city. Upon that day the plaintiff, who was then about lá years of age, with other boys boarded the train as it was leaving the village, to ride to the city. Concededly, the plaintiff had no right upon the train, and was not there by invitation of the defendant, and it was the duty of the train-. men to prevent all persons other than employéa from riding thereon. While the plaintiff was sitting upon one of the cars, and the other boys were scattered about on other parts of the train, .one of the brakemen approached from the rear end, hallooed at the boys, and ran towards them in a threatening manner, to drive them off. The plaintiff’s companions, after warning him of the brakeman’s approach,, leaped from the train. The plaintiff ran towards the front end of the train, the brakeman following him. When the plaintiff reached the forward end of the flat car next ahead of the one upon which he had been sitting, and when the brakeman had nearly reached him, he jumped off, and the brakeman jumped to the ground after him,, striking the plaintiff’s leg, by which it was fractured, and which is the injury complained of. According to the plaintiff’s testimony, after he and the brakeman reached the ground the brakeman picked him up, kicked and struck him several times, and then jumped upon the train, which was moving at a very slow pace. The evidence conclusively establishes that the plaintiff’s leg was not broken because of anything which happened while he was upon the train, or by striking the ground in jumping from the car, but that it was broken by the-brakeman jumping upon or against it after they had both left the train. The plaintiff testified upon his direct examination as follows l

“As I looked around I saw the brakeman dropping down off the box car west of me, on the flat car. He hallooed at me; run after me, and I ran down over one flat car. I jumped onto the other. He hallooed at me; ran after me. I ran east over the flat car where I was sitting onto the other; that is, on the flat car beyond that. He was phasing me and was hallooing at me. The engine started up just as he started after me. As he chased me, hallooing at me, I ran down to get to the other box car, and got to the handle on the left side. I could not, get up. The handle was on the left side. I- jumped off, and he jumped right on top of me; knocked' me to the ground. Then he caught me by the back of the coat, gave me a kick, and raised me up and hit me in the face five or six times. He left me then and jumped on the train. * * sQ. How soon after you landed, before he landed on top of you? A. He came right on top of me, before I struck the ground. He was on top of me when I struck the ground. Q. Did he strike your leg? A. Yes. sir; he jumped right on top of me. My right leg was broken. That was the leg he jumped onto. * * * Q. Where was it that your leg was broken? A. Right there [indicating], between my knee and ankle.”

On cross-examination the witness stated:

“On this occasion I ran because sometimes he [the brakeman] chased me-off. Other times he would not. I was afraid of him,—the way he looked at me. I ran across the car. Don’t know just how far ahead of him I was. I was not very far.. He was within seven feet of me when I started. When I got over to the.box car I seen I could not get across. I did not try to get across. I looked. I was afraid to cross. I turned around to see where he was. He was right on top of me, trying to get hold of me. I jumped right off. He jumped on top of me. The engine had just started up. Q. Did you land on your feet? A. Yes, sir. Q. Your hands and feet? A. On my feet.. Just as I jumped, he jumped right on top 'of me; fell onto me. We both struck the ground together. I did not fall on my face before he struck me. I landed squarely on my feet. Q. Were you standing up when he struck you?' A. No, sir; I was lying down. He picked me up. Q. When he jumped off, were you standing up? A. I jumped, and he jumped right on top of me. I had not struck the ground before he struck me. We both struck the ground about the' same time. My body fell over to the side. He was on top of me, and my legs and all went over. He was on top of me. We both struck the-ground together. My leg was cracked with the weight of him on top of me. I jumped first, and landed square on my feet. X had not landed on my feet when the brakeman struck me. I had not landed on the ground When he jumped on me.. It was in mid-air. I was off the ground when he struck me. My leg was not against anything. I was just in the act of falling—jumping— from the car to the ground when he jumped too. My leg broke when he struck, me. That was before I struck the ground.”

On redirect examination the witness testified:

“As I jumped off the car, he [the brakeman] jumped at the same time, so we practically struck the ground together. Up to the time he struck my leg, there was not anything the matter with my leg. As I felt my leg crack, he was right on top of me. There was nothing by this point where my leg cracked, that I know of, only the path right between the two cars. His feet struck my leg at this point where it was broken.”

Joseph Stull, a witness called by the plaintiff, testified that he-“saw the brakeman land on his [the plaintiff’s] leg.” All the witnesses called by the plaintiff who saw the accident said, in words or-in substance, that the plaintiff’s leg was broken by being struck or jumped upon by the brakeman, and not by striking the ground as he-jumped from the car.

The brakeman, who was called as a witness by the defendant, testified that he did not jump upon the boy or upon his leg when he left the car; and it is urged on behalf of the plaintiff that, upon his evi

“Where a party calls upon the trial court to make a ruling in his favor, he must specify with reasonable clearness the point that he desires considered and decided, in order to predicate error upon an exception to a ruling against .him.”

In Heimberg v. Railway Co., 162 N. Y. 352 , 56 N. E. 899 , the headnote is as follows:

“Where the owner has claimed upon the trial that the written paper was insufficient as a consent, he cannot, after a judgment in his favor has been, reversed below, change his position, and ask the court of appeals to éxamine the evidence in order that it may find some fact to overcome the paper, or answer the decision of the reversal.”

"An exception to the denial of a motion for a new trial does not enable a party to argue in the court of appeals a point not taken on the trial.”

Quinlan v. Welch, 141 N. Y. 158 , 36 N. E. 12 .

The cases above cited apply with equal force to the suggestion in the prevailing opinion of the court in this case that “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,” and that for the negligent performance of the duty, by the brakeman, of keeping the plaintiff off the train, the defendant is liable. There is no evidence in the case which in any manner supports such suggestion or theory. No evidence was given tending to show that the brakeman was charged with the duty of keeping the plaintiff or other boys'off the train. Plaintiff’s experienced counsel at no time during the progress of the trial called the attention of the learned trial court to such a proposition, or suggested that it could be made the basis of a recovery, and he has not argued or alluded to such a proposition upon this appeal. The case was tried and the appeal argued upon the single theory that the brakeman was charged with the duty of removing the plaintiff and other trespassers from the train; that while engaged in the performance of that duty he negligently and willfully inflicted upon the plaintiff the injuries complained of. The point that the brakeman was charged with the duty of keeping the plaintiff and others from getting on the train, that he was engaged in the performance of that duty when the plaintiff was injured, and that therefore the defendant was liable for his negligent acts, was not raised or taken upon the trial, and is therefore not available to the plaintiff upon this appeal. Werner v. City of Rochester, supra.

Assuming that the evidence tended to establish the allegation in the complaint that the brakeman “jumped immediately after this plaintiff, striking him as he landed, and thereby breaking this plaintiff’s leg,” was the learned trial court justified in granting defendant’s motion for a nonsuit? At the time the brakeman attempted to scare the plaintiff and his associates from the train, it was concededly moving at a very slow rate of speed,—had just started, as some of the witnesses stated, and others testified that it had just commenced to move. It was going so slowly that the brakeman was able to jump from the car, chastise the plaintiff, as stated by his witnesses, and again get upon the same car before it had passed the spot where the plaintiff was. Under such circumstances, it may be doubted whether a finding by the jury that the defendant was guilty of negligence because the brakeman, charged with the duty of keeping trespassers off the train, compelled the plaintiff, a boy then 14 years of age, to leave the train while it was moving at such rate of speed, would have been justified. It is evident that if the employés of the defendant were under the obligation of bringing the long, heavy train in question to a full stop before driving the plaintiff and the other boys off,

In the case of Rounds v. Railroad Co., supra, the court says:

“It seems to tie clear enough from the cases in this state that the act of the servant causing actionable injury to a third person does not" subject the master to civil responsibility in all cases where it appears that the servant was at the time in the use of his master’s property, or because the act, in some, general sense, was done while he was doing his master’s business, irrespective of tfie real nature and motive of the transaction. * * * If. however, the servant, 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, does an injury to another, then the master is not liable. The relation of master and servant as to that transaction does not exist between them. It is a willful and wanton wrong and trespass, for which the master cannot be held responsible.”

The only question to be determined in this case is as to whether the defendant’s brakeman, in leaving the car and jumping upon or against the plaintiff when he was upon the ground and clear from the train, was acting within the scope of his employment, in the performance of the duty imposed upon him by the company. When the facts are ascertained, there can be no question about the rules of law which are applicable. In the case at bar we will assume that the defendant’s brakeman was charged with the duty of removing trespassers, including the plaintiff, from the train of which he had charge, and that for any negligent or wrongful act committed while in the discharge of that duty, although acting in excess of his authority, or even done willfully or maliciously, which resulted in injury to a third person, the defendant would be liable. The brakeman,

Upon all the evidence, and under the authorities, the conclusion is reached that the learned trial justice properly granted the defendant’s motion for a nonsuit. It follows that the judgment and order appealed from should be affirmed, with costs.

SPRING, J., concurred.