Alabama & Vicksburg Ry. Co. v. McAfee

• Decision Date: 30 October 1893
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY v. PETER MCAFEE
• Court: Mississippi Supreme Court

14 So. 260

71 Miss. 70

ALABAMA & VICKSBURG RAILWAY COMPANY v. PETER MCAFEE

Supreme Court of Mississippi

October 30, 1893

FROM the circuit court of Rankin county, HON. A. G. MAYERS, Judge.

Appellee an unlettered negro, who lived at Brandon, purchased of appellant an excursion ticket from that place to Jackson and return. He was left by the passenger-train at Jackson, and seeing a freight-train of appellant about ready to leave in the direction of Brandon, he arranged with the crew to take passage home thereon, agreeing to work in lieu of paying fare. He assisted in uploading freight at Pearson, an intermediate station where the train stopped, and rendered some other service on the way. After the train left Pearson according to his testimony, one of the crew, who turned out to be a brakeman, demanded payment of his fare, and he paid twenty-five cents, whereupon the brakeman insisted upon the payment of more, the fare being forty-five cents, and, in a struggle which ensued, he fell from, or was pushed off, the running train. He testified that this employe attempted forcibly to take his money, and pushed him off. He sustained injuries, for which this action was brought.

Defendant's testimony tended to show that passengers were not allowed on this train; that the conductor knew nothing of the arrangement made by the plaintiff to travel thereon, or the effort to make him pay fare; and that while brakemen sometimes collected fares, they had no authority to do so. In his testimony, the brakeman denied that he attempted forcibly to take plaintiff's money, and said that when he spoke to him about the payment of the balance of the fare he jumped off. The court refused to instruct for defendant.

The instruction referred to in the opinion is as follows "The court instructs the jury, in behalf of plaintiff that even though plaintiff may have gotten on the train without any right, and even if he was a trespasser on the train, the defendant had no right to eject him in a way that would endanger him or hurt him; and if the brakeman knocked or shoved him off while the train was moving, the defendant is liable to the plaintiff for such damages as he sustained."

Verdict and judgment in favor of plaintiff for $ 500. Motion for new trial overruled. Defendant appeals.

Reversed, and remanded for a new trial.

W. L. Nugent, for appellant.

The case of Railroad Co. v. Phillips, 64 Miss. 693, does not change the general rule in this state and make the master responsible for the torts of its servants under all circumstances. It has never been held that such torts are chargeable upon the master, unless committed by the servant when in his master's service. Here the brakeman was not authorized to collect fares. He was stealing on his own hook.

The court erred in giving the instruction asked by plaintiff. It is not the law that the company was liable for the violence of a brakeman outside the line of his duty. The case called loudly for a peremptory instruction in favor of the defendant.

Unless railroad companies, as to trespassers on their trains, are sureties for their servants and bound for their acts, the plaintiff had no case.

P. Henry and A. J. McLaurin, for appellee.

1. If it be true that this train was forbidden to carry passengers it does not follow that plaintiff was improperly on it. The persons in charge of the train invited him to travel on it, and passengers are carried on some...