Brill v. Eddy,
| Decision Date | 08 May 1893 |
| Citation | 22 S.W. 488,115 Mo. 596 |
| Parties | Brill v. Eddy, et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.
Affirmed.
Jackson & Montgomery for appellants.
(1) Even if McMahan had been guilty of any negligence at the time and place complained of, the defendants cannot be held liable therefor, because McMahan was a special policeman and not the servant of defendants, and his alleged acts were not in the line of any duty as a servant of the defendants. Farber v. Railroad, 32 Mo.App. 378; Tolchester Beach Improvement Co. v. Steinmeier, 20 A. 188; Thornton v. Railroad, 42 Mo.App. 58; 2 Wood's Railway Law, p 1212; Carter v. Machine Co., 51 Md. 290. He was a de facto officer, and, so far as this case is concerned, his acts had the same effect as though he had been regularly confirmed. 1 Dillon on Municipal Corporations, sec. 215 and note; note to secs. 22 and 256, and sec. 276 and note; 2 Dillon on Municipal Corporations, note to sec. 892 on page 1079. (2) The court erred in permitting the plaintiff to amend his petition after the evidence was in, for the reason that the amendment made changed the cause of action. (3) The court erred in excluding evidence offered by defendants. (4) The plaintiff was a trespasser, and his injury was the result of his trespass and of his own negligence contributing thereto, and for that reason was not entitled to recover. Notwithstanding his minority, the plaintiff by his evidence showed himself to be of such mental capacity, and to have such an understanding of his conduct and its probable effect as to render such conduct negligent, and to make him responsible for the same. Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596; Donoho v. Iron Works, 75 Mo. 401; Duffy v. Railroad, 19 Mo.App. 380; Williams v. Railroad, 96 Mo. 275; Eswin v. Railroad, 96 Mo. 290; Schmidt v. Distilling Co. 90 Mo. 284.
W. S. Shirk and Sangree & Lamm for respondent.
(1) McMahan was the servant of defendants. First. They selected him, they paid him, they controlled him, they prescribed his duties and these duties pertained to their property and benefit and interests, and he was subject to discharge by them. Hence, by every recognized and controlling test and definition, the relation of master and servant existed. Bishop on Non-Contract Law, sec. 599; Sproul v. Hemingway, 14 Pick. 1; Wood's Master and Servant, secs. 1, 317 and note 1, 539; Laugher v. Pointer, 5 B. and C., 547; Cooley on Torts, 531; 1 Parsons on Contracts, 101; 1 Lawson's Rights, Remedies and Practice, sec. 294 and cases cited under notes 1 and 2; Mound City, etc. Co. v. Conlon, 92 Mo. 221. Second. Even if McMahan was a de facto policeman with power to make arrests (which is not at all conceded), yet being in the employ and under the direction and subject to the control and interference of defendants, his services being rendered to them and his duties defined by them, he became thereby their servant and was in no just and accurate sense an independent officer. A police officer may be a civil agent. Gerhardt v. Savings Institution, 38 Mo. 60; Daily v. Bank, 56 Mo. 102; Walker v. Railroad, 39 L. J. C. P., 346; Goff v. Railroad, 3 Ellis & Ellis 672; Wood on Master and Servant, p. 542; Collett v. Foster, 2 Hurl. & N. 356; Bagley v. Railroad, L. R., 7 C. P., 415; Wood on Master and Servant, sec. 459, p. 553; Railroad v. McKee, 99 Ind. 519; Lynch v. Railroad, 90 N.Y. 86; Harris v. Railroad, 35 F. 116; Yates v. Brown, 8 Pick. 23; Patterson's Railway Accident Law, p. 110; Jardine v. Cornell, 14 A. 590; Edwards v. Railroad, 1 American and English Railroad Cases, 571; Griffin v. Railroad, 148 Mass. 143. (2) The acts complained of were within the scope of the employment of McMahan as the servant of defendants and in the line of his prescribed duties while he was about his master's business and furthering his master's ends, and, hence the rule of respondeat superior applies. Whether the master directly authorizes the act or not, or was or was not privy thereto, if he places his agent or servant in a place to do a certain class of acts or accomplish a certain end, he is responsible for the means and methods and discretion of the servant employed and used to accomplish the expected result. He sets in motion the agency that produced the mischief and is liable. Marion v. Railroad, 59 Iowa 428; Borwick v. Bank, L. R., 2 Exch. 265; Garretzen v. Duenckel, 50 Mo. 104; Wood on Master and Servant, p. 561 and cases cited under note 2; Harriman v. Stowe, 57 Mo. 98; Whitehead v. Railroad, 99 Mo. 270; Shea v. Railroad, 62 N.Y. 180; Cosgrove v. Ogden, 49 N.Y. 257; Whittaker's Smith on Negligence, pp. 154, 155; Holmes v. Railroad, 12 Allen (Mass.) 580; Limpus v. London, etc. Co., 1 H. & C. Exch., 528; Railroad v. Hack, 66 Ill. 238. (3) Whether McMahan was the servant of defendants and whether he acted within the scope of his employment and in the line of his prescribed duties and about his master's business at the time he did the acts resulting in the injury to the child, are all questions of fact to be submitted to and answered by the jury (Courtney v. Baker, 60 N.Y. 1; Perigo v. Railroad, 55 Iowa 326; Wharton on Negligence, sec. 167; Dwinelle v. Railroad, 120 N.Y. 117; Railroad v. Spicker, 105 Pa. St. 142; Rounds v. Railroad, 64 N.Y. 129; Wood on Master and Servant, p. 549), and was so submitted and answered in the affirmative. (4) Though the child was a trespasser, this fact gave defendants no right to remove him by dangerous or negligent methods, or at dangerous times, or by inadequate means, or by the application of reckless and negligent and unnecessary force from a moving train. Carter v. Railroad, 98 Ind. 552; Railroad v. Savage, 110 Ind. 156; Railroad v. Kelly, 36 Kan. 655; Shea v. Railroad, 62 N.Y. 180; Lang v. Railroad, 51 Hun, 63; Brown v. Railroad, 66 Mo. 595; Lovett v. Railroad, 9 Allen (Mass.) 557; Rounds v. Railroad, 64 N.Y. 129; Biddle v. Railroad, 112 Pa. St. 551. (5) The question of the contributory negligence of the child was put to the jury (in the form desired by defendants) and passed on by them. First. If plaintiff was guilty of contributory negligence by placing himself in a dangerous position, and yet the proximate cause of the injury was the careless and negligent acts of defendant's servant, plaintiff may recover. Kelly v. Railroad, 95 Mo. 279; Brown v. Railroad, 50 Mo. 461; Weeks' Damnum Absque Injuria, 242 and authorities cited; 1 Harris' Damages by Corporations, page 406 and post and authorities cited; Winters v. Railroad, 99 Mo. 509. Second. But allowance is to be made for the immature judgment, impulsiveness and thoughtlessness of children. This is the rule of humanity, of parental authority, and is the benign doctrine of the civil law. Cooper v. Railroad, 66 Mich. 261; Eswin v. Railroad, 96 Mo. 290; Burger v. Railroad, Mo. Sup. Court; Williams v. Railroad, 96 Mo. 275; 1 Harris' Damages by Corporations, p. 542 and note and p. 548. Third. And of the criminal law. The presumption is that under fourteen years of age a child is incapable of committing a crime. State v. Adams, 76 Mo. 355; State v. Tice, 90 Mo. 112.
OPINION
The plaintiff, a minor suing by his next friend, brought this action against the defendants, who are the receivers of the Missouri, Kansas & Texas Railway Company, to recover damages for the loss of an arm. The chief complaints made in this court, are, first: that there is no evidence of negligence on the part of McMahan; second, if McMahan was guilty of negligence the defendants are not liable because he was acting in the capacity of a police officer.
The evidence bearing on the first complaint is in substance this The yards of the railroad company extend from Third to Eleventh streets in the city of Sedalia. Various repair shops are located therein, and a large number of men are engaged in the shops and yards in repairing disabled cars. The main and several side or switch tracks run north and south through the yards. Broadway or Eighth street runs east and west and crosses the yards. John McMahan was employed by defendant as day watchman at and for a long time prior to the accident, and it was his duty to keep boys out of the yards and away from the cars. While standing in Broadway near the place where the tracks cross that street, he saw the plaintiff and three or four other boys hanging to the cars of a freight train going south. It seems the plaintiff and the other boys got on the cars at the north end of the yards. Some of the witnesses say the train was moving at the rate of ten miles per hour, but other evidence tends to show that it was moving at a much less rate of speed. McMahan stepped forward so the train would pass close to him. All the boys except the plaintiff saw him and at once jumped down and ran away. The plaintiff had one foot on the lower step of a ladder attached to the front end of a car, and held on by grasping the upper rounds with his face to the car. The proof is all to the effect that he did not see McMahan and that the latter gave the boy no warning. McMahan had but one arm. The witness Brown who saw the whole transaction testified: McMahan got his arm partly around the boy, not clear around him, but just far enough to jerk him loose; the boy fell down under the car; McMahan made a grab for him and got him up when he fell back; McMahan made a second attempt to get the boy but did not get him in time to save his arm. Several other witnesses testified that McMahan jerked the boy loose as the cars passed and that the boy fell or was knocked under the car. McMahan testified as follows: "When the boy got close to me he let loose and jumped off and in doing so struck me; the force of the...
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