Finley v. Hudson Electric Railway Co. — 46 N.Y. St. Rep. 202

Majority

p. 202

William H. Finley, by Guardian, Resp’t, v. The Hudson Electric Railway Co., App’lt.

(Supreme Court, General Term, Third Department,

Filed July 2, 1892.)

Headnote

Negligence—Railboad.

Plaintiff, a boy eight years old, fell and was injured while trying to get on one of defendant's cars, by invitation of the motor man in payment for services in opening a switch. It appeared that the company had forbidden their employes to allow boys to do so, and that the car was going slowly. Held, that the motor man was not acting within the scope of his duty ‘in inviting plaintiff to ride, and that defendant owed him no duty as a passenger or guest, and was not liable.

Appeal from judgment in favor of plaintiff, "entered upon verdict, and from order denying motion for a new trial.

Action for injuries alleged to have been caused by defendant’s negligence. Plaintiff, while endeavoring to get on one of the defendant’s cars, after opening a switch for the car, slipped and fell under the car, which passed over his left leg and injured it so that it had to be amputated about four inches below the knee.

R. E. Andrews (L. F. Longley, of counsel), for app’lt; Cady & Hoysradt (J. Rider Cady, of counsel), for resp’t.

The car of the defendant was moving at a moderate rate of speed, and carefully, through the streets, so that no duty that the defendant owes to other users of the street was violated. The plaintiff was not seeking to obtain passage as a passenger ; he was not expecting or expected to pay fare, and the defendant owed no duty to him as a passenger. Connolly v. Knickerbocker Ice Co., 114 N. Y., 104 -9; 22 St. Rep., 675 ; Fleming v. B. C. R. R. Co., 1 Abb. N. C., 433 ; aff’d, 74 N. Y., 618 ; Buckley v. N. Y. & H. R. R. Co., 43 Supr. Ct., 187.

p. 203

But it is claimed that the plaintiff was getting upon the car by invitation of the motor man or conductor, in payment for his services in opening a switch for the motor man; assume that to be the fact, in doing so the motor man was not acting within the line of his duty, neither was he doing it in furtherance of the defendant’s interest or for its benefit. Ho benefit was to be derived by the defendant from the motor man’s act Hot only is it not within the scope of his employment to invite people to ride free, or to employ others to assist him in the performance of his duties and compensate them by free transportation, but in this particular case the defendant, for the purpose of breaking up a practice of the kind in question, had ordered their motor men not to permit or allow it, and had made rules against it

The master is liable only for the authorized acts of the servant; those done within the scope or line of the servant’s employment. The root of the master’s liability for the servant’s acts is his consent, express or implied, and when his acts are done within, the scope of his employment, or for his master’s benefit, or in furtherance of his interest, although not strictly in the line of his duty, yet in the course of his employment the master’s assent is implied, and he is accordingly held liable. Mehan v. Morewood, 52 Hun, 566 ; 23St. Rep., 487; Mulligan v. N. Y. & R. B. R. Co., 129 N. Y., 506 ; 42 St. Rep., 83 .

And as in the case .of Quinn v. Power, 87 N. Y., 535 , where although the servant departed from the strict line of bis duty, yet what was done was in the line of his business for the master’s benefit in furtherance of his interests, and what the master might naturally have done if he had been present.

The proposition of law is beyond dispute; the difficulty is, as in most cases, in applying it

The scope of the motor man’s duty as motor man, or driver of the car, was to conduct or drive the car carefully through the streets; as conductor, for he seems in this case to have been both motor man, or driver, and conductor, it was his duty to see to the welfare of passengers, or those seeking to become passengers; he owed as the servant of the defendant a duty to no one else; the plaintiff was not injured by reason of any neglect of duty that the defendant owed to other users of the streets; neither was he injured by any neglect of duty that the defendant owed to him as a passenger, or one seeking to become a passenger, and it was not within the scope of the conductor’s duty to invite him on the car as a guest, and as such the defendant was under no obligation of duty to him.

It seems to me that it was not a part of the motor man or conductor’s business, or within the scope of his employment, or for the benefit of the defendant or in furtherance of its interest, to invite the plaintiff upon the car under the circumstances in this case, and hence that the defendant’s assent thereto cannot be implied.

For these reasons judgment should be reversed and a new trial granted, dosts to abide the event

Mayham, P. J., and Putnam, J., concur,