Brown v. The Union Pacific Railroad Company

• Citation: 111 Kan. 338,207 P. 196
• Decision Date: 06 May 1922
• Docket Number: 23,716
• Parties: LEE BROWN, a Minor, by His Mother, MEDAH BROWN, as Next Friend, Appellant v. THE UNION PACIFIC RAILROAD COMPANY, Appellee
• Court: United States State Supreme Court of Kansas

207 P. 196

111 Kan. 338

LEE BROWN, a Minor, by His Mother, MEDAH BROWN, as Next Friend, Appellant v. THE UNION PACIFIC RAILROAD COMPANY, Appellee

No. 23,716

Supreme Court of Kansas

May 6, 1922

Decided January, 1922.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LICENSEE--On Railroad Right of Way--Assaulted by Railroad Employee--Employee Not Acting Within Scope of His Employment. Plaintiff, a boy sixteen years of age, was on defendant's right of way at the invitation of and for the purpose of running an errand for the switch tender when the section foreman called him vile names. At some remark of plaintiff's in reply the foreman became angry, ran after plaintiff, caught him, tried to choke him and struck him with a broom handle. The switch tender interfered and the section foreman returned to his hand car. Plaintiff said he was going home and started to leave when the foreman got off his car, chased the plaintiff through the right of way fence into a field, through a barbed-wire fence a half block away, caught up with him and assaulted him again. In an action to recover damages from the railroad company, held, that plaintiff was not a trespasser on the right of way but was a licensee, and on the facts stated, held further, that a demurrer was properly sustained to plaintiff's evidence because it is obvious that a candid mind acting normally could not reasonably infer that the foreman in making the assault and in following up the plaintiff for a half block after he had left the right of way and again assaulting him, supposed he was engaged in an attempt to discharge any duties devolving upon him, or reasonably infer that he was in fact acting within the scope of his employment. (Kemp v. Railway Co., 91 Kan. 477, 138 P. 621, and cases cited in that opinion.)

2. SAME--Pleadings--Allegations of Employment and Agency--Partial Denial Under Oath--Pleadings Interpreted. The petition alleged that one Larson, whose first name was unknown, the section foreman and an agent and employee of defendant in charge of its tracks and right of way, ordered plaintiff to leave the right of way and struck and beat him and that while plaintiff was leaving the place and tracks the said Larson "acting as the agent, servant and employee of the defendant" followed after plaintiff, again wilfully, wantonly, maliciously, wrongfully and violently struck, cursed, abused and beat plaintiff, etc. The part of the answer, verified under section 110, civil code, denied that defendant "had in its service at the . . . place mentioned . . . any man named Larson, employed as section foreman, agent, servant or employee." Held, a negative pregnant implying an affirmative statement that defendant did have in its employ a section foreman at the time and place mentioned who was in charge of defendant's tracks and right of way, but held further, that it cannot be taken as an affirmative implication that the section foreman, while following up and assaulting plaintiff, was acting within the scope of his employment as such agent.

J. H. Brady, T. F. Railsback, William H. McHale, jr., all of Kansas City, for the appellant.

R. W. Blair, T. M. Lillard, O. B. Eidson, all of Topeka, and A. L. Berger, of Kansas City, for the appellee.

OPINION

PORTER, J.:

The appeal is from a judgment sustaining a demurrer to plaintiff's evidence. The petition alleged that the plaintiff, who was 16 years of age was assaulted by a section foreman by the name of Larson, an agent and employee of defendant in charge of its tracks and right of way near Twenty-second street in Kansas City; that the section foreman ordered plaintiff to leave the right of way and struck, cursed and abused him because he did not immediately comply, and when he started to leave, followed and assaulted him a second time.

The answer consisted of a general denial, a defense that plaintiff was a trespasser and that only such force as was reasonably necessary to put him off the right of way was used. As a further defense it was denied under oath that defendant had in its service at the time mentioned any man named Larson, employed as a section foreman, agent, servant or employee.

Plaintiff testified that he lived with his parents a short distance from where the assault occurred; that Johnson, the switch tender, called him to come over there to do an errand for him; he had often run errands for the employees of the defendant. On this occasion he was standing near the switch shanty when a section crew came up on a hand car under Larson, the foreman. He had known Larson about two years and had seen him giving orders about the repair work. Larson engaged in a conversation with the switch tender, but spoke of the plaintiff, calling him vile and unspeakable names. Plaintiff replied, "I am no more of those names than you are. You don't look any better than the rest of them along here." This caused the foreman to "fly up in the air," and plaintiff ran away; the foreman followed him, caught him and tried to choke him. Plaintiff ran and picked up a broom handle and tried to strike the foreman with it, but the latter took it and hit him across the back and shoulder. Plaintiff ran to where the switch tender was, who said, "You will have to quit fighting as long as I am tending switches here." Plaintiff then said he was going home to put on another shirt as the one he had was torn, and started to walk along the tracks when the foreman came toward him, and plaintiff ran through the right of way fence into a field, then turned east to Twenty-second street where he had to go through a barbed-wire fence, and the foreman caught up with him about 25 feet north of the defendant's tracks and beat him severely. Plaintiff finally broke loose and started home. The foreman went back to the right of way, got a piece of iron about a foot long and threw it at the plaintiff. In his cross-examination plaintiff testified:

"Q. Did you say anything to this man Larson [the foreman] except what you told us now? A. No, sir.

"Q. Before he started to choke you had you refused to get off the track? A. No, sir; he never even ordered me to get off the track.

"Q. He just started in without saying anything? A. Yes, sir."

The theory of the defense is predicated upon a number of decisions in somewhat similar cases. The rule is stated in Kemp v. Railway Co., 91 Kan. 477, 138 P. 621:

"An employer may be held liable for the wrongful acts of his employee done in the scope of his employment. . . . If done solely to accomplish the employee's own purpose or device, although in an interval of his regular service, the employer is not liable." (Syl. P 2.)

In that case the trial court overruled a demurrer to the evidence which presented the question whether upon the facts the railroad company was liable for the wrongful act of its brakeman in firing a shot which killed a trespasser--one of two young men who were riding from station to station on a freight train without paying fare. They had gotten off at a station about 10 o'clock at night intending to board the train again. As they stood near the train a brakeman got a revolver from the baggage car, started towards them and with an oath ordered them to...