Barmore v. Vicksburg, Shreveport and Pacific Railway Company

CourtUnited States State Supreme Court of Mississippi
Citation38 So. 210,85 Miss. 426
Decision Date03 April 1905
PartiesTHOMAS B. BARMORE v. VICKSBURG, SHREVEPORT AND PACIFIC RAILWAY COMPANY

November 1904

FROM the circuit court of Warren county, HON. GEORGE ANDERSON Judge.

Barmore the appellant, was plaintiff, and the railway company, the appellee, defendant in the court below. From a judgment in defendant's favor, the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court, and also in the dissenting opinion of the chief justice.

Reversed and remanded.

Snyder & Gilfoil, for appellant.

If it be admitted that Watson had no business to propel the tricycle east of Cow Bayou trestle, and that when he passed across it he was engaged on business of his own, to accommodate a sick acquaintance with a ride to Waverly, and that the defendant, having furnished him with this dangerous machine and practically a free track to run it on, is charged with no liability for his misuse of the machine, and the running of his machine beyond his territorial limits, yet the facts that he left his tank for the purpose of procuring kindling for his engine; that he went beyond the place where the kindling lay, with the intention and purpose of gathering the kindling on his return; that he was on his return trip in the performance of his duty to return the tricycle to the place where it belonged, and in the further performance of his master's business, intending to gather the necessary kindling when he arrived at the place where it was, show conclusively that this employe was, at the time of the injury, in the function to which he had been appointed, engaged in his master's business, and in the performance of the duties he owed his master.

The position taken by the defendant in the court below, in its last analysis, is simply this: If the injury had been occasioned when Watson was bound east toward the kindling for the purpose of gathering it, the master would be liable; but as he was approaching the kindling from the other side, from the east, although animated with the same purpose of gathering it to fire his master's engine, which was his business, the master cannot be held.

We submit that it is inconceivable that this can be the law. The cases urged by defendant in support of its point of view of non-liability of the master are all based upon facts which show that the act was done while the servant was at liberty from his service and pursuing his own ends exclusively. And the doctrine relied on in cases cited by defendant has been greatly modified.

Where the servant is in the performance of even the slightest duty to the master, the master is held liable. In the case cited in the brief of our associates, and the latest we are able to find on the point, and very much in support of our position, Weber v. Lockman, 60 L. R. A., 313, the court says: "The boy was a minor, riding his father's horse. It was his duty, after having executed his mission, to return the animal to his father's stables. Whatever negligence there was in departing from the direct route, or in delaying his return until after nightfall, or in the management of the horse at the time of the accident, was committed in performance of this duty and service."

The supreme court of Louisiana in the case of Dorsey v. Railway Co., 104 La. 478 (52 L. R. A., 92), the latest expression from that court on this subject, says: "We take it that the rule exempting the master from responsibility is expressed in the following: 'When the employe, in carrying out a purpose of his own, does injury to another, not within the scope of his employment, the employer is not liable.'"

On the proposition that the master is liable for the damage and injury caused by the misuse by his servant of a dangerous instrument, machine, or agency, which it has placed in his hands and over which it has given him exclusive control, the following cases are in point: The case of Nashville & C. R. Co. v. Starnes, in which the court said: "Railroad corporations only act through agents; and having placed in their hands such deadly instruments, the law demands of them the utmost caution in the selection of agents, and holds them strictly accountable." 9 Heisk. (Tenn.), 52 (19 Am. Ry. Rep., 280).

"Where the servants of a railroad in the discharge of their duties pervert the appliances of the company to wanton and malicious purposes, to the injury of others, the company is liable for such injury." Chicago, B. & Q. R. R. Co. v. Dickson, 63 Ill. 157 (7 Am. Ry. Rep., 45), following Toledo W. & W. R. Co. v. Harmon, 47 Ill. 298; Railroad Co. v. Shields, 44 Am. & Eng. R. Cas., 647 (8 L. R. A., 464); Alsever v. Minneapolis & St. L. Co., 56 L. R. A., 748; and in Euting v. Chicago & Northwestern R. Co., 60 L. R. A., 158.

McLaurin, Armistead & Brien, on same side.

Weber v. Lockman (Neb.), 60 L. R. A., 313, decided in November, 1902, is in point. This was an action against defendant to recover damages for personal injuries caused by the negligence of defendant's son, acting in the capacity of a servant for his father, for which defendant was alleged to be responsible.

In Cosgrove v. Ogden, 49 N.Y. 225 (10 Am. St. Rep., 361), it is said: "The test of the master's responsibility for the act of the servant is not whether such act was done according to the instructions of the master to the servant, but whether it was done in the prosecution of the business that the servant was employed by the master to do."

In the case at bar the act was done while the servant was en route to pick up the kindling necessary to start his fires. It seems to us that he was certainly at the time about his master's business. In the case of Fitzsimmons v. Railroad Co., 57 N.W. 127, a case where a railroad engineer violated the express orders of the company and ran his engine from one station to another, it was said he was still acting within the lines of his employment, and plaintiff, the passenger injured by his wrongful conduct, recovered of the defendant company. It will be noted, too, from an examination of the case, that a recovery was had, and based on the ground that the engineer was still in the line of his employment, although conducting the business of his master in violation of his master's orders, and not because of the fact that the party injured was a passenger on another of defendant's trains. Is there any difference in principle between the wrongful operation of a locomotive and the wrongful operation of a tricycle? See also in this connection Smith v. Munch, 68 N.W. 19.

The general rule of liability of the principal to a third party is the same in Louisiana, the scene of this accident or injury, as it is in Mississippi or other common-law states, Louisiana going further than some of them, however, in adhering to and enforcing the doctrine of "last clear chance." McClanahan v. Railway Co., 35 South. Rep., 902.

Watson had been entrusted by appellee with the custody and care of a railroad appliance, a tricycle, which, when properly used, was in itself a dangerous instrument, and for that reason defendant cannot escape liability resulting from the improper handling thereof.

Whether or not the tricycle was an appliance of such dangerous character in itself as to require the utmost care in its use, and such care that the railroad could not relieve itself of the responsibility of the improper use thereof, because of its nature, by a servant, nevertheless the limits for the use and keeping of the appliance by the servant had been prescribed, and it was the duty of the servant to return said appliance to its present and proper place for keeping or use, and that, too, no matter where he found it or how it got out of place, and in attempting to so return it the servant was doing his duty to his master, and certainly at the implied bidding of his master.

There is no dispute in the testimony as to the character of Watson's employment. He was a pumpman, and to discharge this service for the company he had been supplied with this tricycle. The limit of the right to use the tricycle was to go to and from his home to the tank, and up and down the track generally to pick up kindling with which he could fire his engine. It was his duty to keep this tricycle, property of the company, at Delhi, his home, when not in his actual use for the purposes mentioned.

Now let us suppose this case: Suppose that on the morning of the 14th of July, 1903, when he started out to do this work, he had not picked up May Barmore (not plaintiff, but the man carried to Waverly) at the pump, but that he had passed him there, and had gone on to the west end of Cow Bayou to get his chips. Suppose that when he got there he had set his tricycle to the side of the track, and that he had walked, or by some other means been conveyed, to Waverly for purposes of his own. Then suppose that May Barmore had followed along behind on his way to Waverly on foot, and had found this tricycle on the side of the track, and had reset it on the track, and had ridden from there on to Waverly on it, and that Watson had been at the station by accident and saw him arrive and had recognized the tricycle as the one in his use and custody. What then would have been his duty to his employer? The answer, and the only correct answer, naturally follows the asking--that is, of course, to carry it back to where it belonged. His duty to his company would arise then and there instantly. Now we submit, in all confidence, that there is no distinction in principle in the case at bar and the supposed case, as to Watson's duty to his master after the tricycle arrived at Waverly, no matter how it got there. As to who did wrong in taking it there, the answer is wholly immaterial. It was Watson's duty to take the machine...

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