Bess v. Chesapeake

• Decision Date: 07 December 1891
• Citation: 35 W.Va. 492
• Court: West Virginia Supreme Court
• Parties: Bess v. Chesapeake & Ohio Railroad Co.

35 W.Va. 492

Bess

v.Chesapeake & Ohio Railroad Co.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1891.

Decided December 7, 1891.

1. Damages Railroad Companies Employer and Employe.

To charge a railroad company for the willful wrong of an employe in forcing a boy from a freight train while in motion, whereby he is injured, it must appear that the act was in the course of the employe's business and within the scope of his authority, the boy being a trespasser, not a passenger.

2. Special Findings.

A finding in answer to a particular question under sec. 5, ch. 131, Code (1887), inconsistent with a general verdict prevails over such general verdict, and judgment should be given according to the finding.

Simms & JEnslow for appellant, cited 8 Kan. 647; Id. 659; 42 N W. Rep. 237; Sedg. Lead. Cas. Meas. Dam. 738; 52 111. 183; 28 W. Va. 733; Bish. Hon Con. Law § 1051, 1054; 12 S. E. Rep. 554; 15 W. Va. 628; 86 Pa. St. 418; 98 Pa. St. 498; 70 Pa. St. 119; 91 Pa, St. 256; 59 la. 428; 47 Wis. 144; Thornp. Trials § 2692.

Gibson &Michie for appellee, cited 4 Am. & Eng. R'y Cas. 562; 15 Wall. 401; 1 Shear. & Redf. Neg. (4th Ed.) §§ 71, 73; Id. § 98 note 4; 40 Hun 605; 112 Pa. St. 551; 55 La. 496; 18 Ohio St. 399; 24 Ohio St. 670; 12 S. E. Rep. 348; 11 Graft, 697; 4 Min. Inst, p't 1. 757; 64 Miss. 584; 31 Kan. 197; 61 la. 452; 18 Ill. 418; 39 Hun 5; 76 Tex. 421; 12 N". W. Rep. 237; 21 Ill. App. 580; 80 N Y. 670; 12 S. W. Rep. 889; 88 Tenn. 710; 2 Am. & Eng. R'd Cas. 70; 22 Id. 306; 34 Id. 488; 25 Id. 446; L. R. 4 Q. B. 406.

Brannon, Judge:

This is a writ of error taken by the Chesapeake & Ohio Railroad Company to a judgment in favor of James Walter Bess, an infant suing by a next friend, against said company for twelve thousand dollars. On the 23 January, 1889, there were a number of freight cars standing on a side track in the City of Huntington, and said Bess, a boy nine years of age, got upon one of these cars, and an engine hitched to the train and while moving these cars Bess in getting off received an injury by the wheels mashing his right foot, which necessitated its amputation, and for this injury this suit was brought,

The claim of the plaintiff for recovery was, that while the train was moving some employe of the company commanded him to get off the car, and he refusing or hesitating, the employe got upon the car, and the little boy ran to the end of the flat car, stepped upon the bumper of a box car, and was getting off, having his foot in a stirrup used for descending from the car, holding with his hand to a ladder used for climbing to and from the top, and while there this employe kicked his hand, causing him to fall, so that his foot got under the wheel. A vital and material question on the trial was the identity of this employee, who he was and what the character of his employment and his duties.

In addition to its duty of finding a general verdict the court, under section 5, chapter 131 of the Code, required the jury to find upon the following particular questions of fact:

"1st. Was the plaintiff Walter Bess a trespasser on the train of the defendant at the time theacciclent occurred?

"2nd. Was the fact that he was on the train known to the defendant before the accident? If so, what agent or servant knew it?

"3rd. Was the plaintiff injured by being forced to jump off the moving train of the defendant? If so, what agent or servant forced him to jump?

"4th. Was the plaintiff kicked by an employe of the defendant and caused to fall under the wheels of the cars? If so, what employe was it?

"5th. If the plaintiff J. Walter Bess was kicked off the defendant's train by any employe of the company or forced to jump off by the defendant's employes, who was the employe and what was his position or employment? "6th. Did any of the employes of the defendant who had control of the train in question kick or force the plaintiff off of the train? If so, who was it?"

The jury made the following answers to the questions propounded by the defendant, viz: "Ans. to ques. 1 Yes. Ans. to ques. 2 Yes, name unknown to the jury. Ans. to ques. 3 Yes, name unknown to the jury. Ans. to ques.4 Yes, name unknown to the jury. Ans. to ques. 5 Name and business unknown to the jury. Ans. to ques. 6 Yes, name unknown to the jury."

The defendant moved the Court to enter judgment for it on these findings upon the particular questions, but the Court refused to do so. Was this refusal error?

This question is to be solved on legal principles. First, the plaintiff, though a child, was in a legal view a trespasser, for he was on the car without right, lie was not a passenger. The law draws a marked and sharp distinction between a passenger and a trespasser. In the case of a passenger, the carrier is not allowed to say that the assault or willful wrong of the servant was an excess, outside his duty, and his own personal act.

" It is among the implied provisions of the contract between a passenger and a railway company that the latter has employed suitable servants to run its trains, and that passengers shall receive proper treatment from them; and a violation of this implied duty or contract is actionable in favor of the passenger injured by its breach, though the act of the servant was wailful and malicious, as for a malicious assault upon a passenger committed by any of the train hands, whether within the line of his employment or not, The duty of the carrier towards a passenger is contractual, and among other implied obligations is that of protecting a passenger from insults or assaults by other passengers or by their own servants." 2 Wood, R'y Law, p. 1194. There is no inquiry in such case as to whether the wrong to the passenger is within the scope of his authority, or whether his act is wanton. This is a rule largely dictated by public policy and is based on a duty owing from the carrier to the passenger. Wood Mas. & Serv. § 321.

But in the case of a trespasser, no duty except absti- nence from wanton injury and gross negligence lies upon the carrier, and the rule is different, for to make the carrier liable the wrong must be one done by the servant within the scope of his duty and in the course of his business. 2 Wood, R'y Law § 316, p. 12, states the principle thus:" While, in the case of passengers, because of the contractual duty existing on the part of the company, the question as to whether the servant committing the injury had authority express or implied, to do so, or, in other words, whether it was done in the line of his duty, is not material, yet, when the question arises between a trespasser, or one to whom this duty is not owed, and the company, a different question is presented, and the company can only be made liable when authority, express or implied, to do the act is shown. Thus, the conductor of a train being in charge of, and having full control over it, represents the company as to any matter connected with its management or control, and for an act done by him in the line of his duty, as by the ejection of a trespasser etc., the company would unquestionably be liable; but for the act of a brakeman of the train, who, without the direction of the conductor, should remove a trespasser from the train, the company would not be liable, unless express authority to do an act to which the act complained of is incident is shown, because the act is not one which comes within the scope of his duty." Angell & Ames, Corp. § 388, after stating that " an action of trespass can not be sustained against a private corporation for an act done by one of its agents unless done communicato consilio;or, in other words, unless the act has been directed, suffered or ratified by the corporation. A corporation is liable for an injury done by one of its servants in the same manner and to the same extent only as a natural individual would be under like circumstances," adds," A distinction exists as to the liability of a corporation for the willful toil of its servants, towards one to whom the corporation owes no duty except such as each citizen owes to every other, and that towards one who has entered into some peculiar contract with, the corporation, by which his duty is increased. Thus, it has been held that a railroad corporation is liable for the willful tort of Its servant whereby a passenger on the train is injured." 1 Shear. & Red. Keg., § 154.

In New v. Co., 17 N. Y. 365, the opinion pointedly draws the distinction, and also R. R. Co. v. Finney, 10 Wis. 388. In Grodard v. R. R. Co., 57 Me. 213, the defendant contended that it was not liable because the brakeman's assault upon the passenger was willful and malicious, and not directly or impliedly authorized by the company, and the court said: "The fallacy of this argument, when applied to common carriers of passengers, consists in not discriminating between the obligatiion which he is under to his passenger and the duty which he owes a stranger. It may be true that if the carrier's servant willfully and maliciously assaults a stranger, the master will not be liable; but the law is otherwise when he assaults one of his master's passengers. The carrier's obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he entrusts the performance of his duty to servants, the law holds him responsible for the manner in which they execute their trust, "

The Supreme Court of Louisiana drew this distinction so definitely, that when a party was beaten by a porter on a sleeping car, the Pullman Car Co. was held not liable because the act was not in the line of the porter's duty and the person injured had not a berth on the sleeping car, and there was no contractual relation between him and the company, but he had gone into the car to ask privilege to wash his hands; but it held the railroad company liable because he was a passenger and this car was one of its train. Williams v. Car Co., and Same v. Same, 40 La, 87, 417; 8 Am. St. Rep. 512, 588. See extended...