Marion v. Chi., R.I. & P.R. Co.

• Decision Date: 04 October 1882
• Citation: 59 Iowa 428,13 N.W. 415
• Court: Iowa Supreme Court
• Parties: MARION v. CHICAGO, R. I. & P. R. CO.

59 Iowa 428

13 N.W. 415

MARION

v.CHICAGO, R. I. & P. R. CO.

Supreme Court of Iowa.

Filed October 4, 1882.

Appeal from Jefferson district court.

Action to recover for a personal injury. The plaintiff avers in his petition that he climbed upon one of the defendant's freight trains while in motion; that he did so without a ticket and without the consent of the company; that one of the defendant's brakemen in the course of his employment negligently and willfully forced him from the train while in motion, and caused him to fall through a bridge, from which he received the injury complained of.

The defendant, for answer, denied all the allegations of the petition not admitted, and did not admit that one of its brakemen, in the course of his employment, negligently or willfully forced the plaintiff from the train. There was a trial to a jury, and verdict and judgment rendered for the plaintiff. The defendant appeals.Slagle & McCracken and M. A. Low, for appellant.

McCoid & West, for appellee.

ADAMS, J.

There was evidence tending to show that the conductor was vested with the sole power to determine who should be allowed to ride upon the train, and who should be removed therefrom. Upon this point the defendant asked the court to give an instruction in these words: “Acts done by an employe while engaged in the service of his employer are not necessarily done in the course of his employment, as the term is used in law, and if an employe, while engaged in the service of his principal to perform a special service, goes beyond or outside of the scope of his employment, and in doing so injures one to whom, like the plaintiff in this case, the employer owes no duty, the employer is not liable.” The court refused to give this instruction, and gave an instruction in these words: “Even though the instruction and rules of the company placed the matter of the removal of trespassers, or nonpaying passengers, from the trains under the immediate charge and discretion of the conductor, and it was the duty of the brakeman to put off such persons only by the direction of the conductor as his superior, the defendant is not relieved from liability simply because, in this instance, the brakeman acted without orders or direction from the conductor. But if the brakeman, not as as a part of his duty as an employe of the defendant, but for the gratification of his own feelings, willfully or maliciously assaulted the plaintiff, and in this assault the plaintiff fell to the ground, then the defendant is not liable. The point you are to observe is this: that as the defendant owed the plaintiff no duty as a common carrier, therefore, unless the brakeman, as an employe of the company engaged in operating the train, acted for the purpose of putting him off, and freeing the train from him as a trespasser, the defendant is not liable for this act.” The giving of this instruction, and the refusal to give the instruction asked, are assigned as errors.

The rule is familiar that an employer is liable for the torts of an employe only where the...