Dixon v. Northern P. Ry. Co.

• Decision Date: 04 March 1905
• Citation: 37 Wash. 310,79 P. 943
• Parties: DIXON v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

79 P. 943

37 Wash. 310

DIXON v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

March 4, 1905

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Action by Charles H. Dixon, a minor, by M. G. Royal, his guardian ad litem, against the Northern Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

B. S Grosscup and A. G. Avery, for appellant.

Troy &amp Falknor, for respondent.

DUNBAR J.

This action was brought in behalf of one Dixon, to recover damages for the alleged wanton and willful act of a brakeman in kicking him from a moving train, resulting in injuries necessitating the amputation of his arm. Dixon was a boy about 18 years old, and was beating his way on a freight train from Portland to Tacoma, riding on the bumpers six or seven cars back from the engine. The train reached Centralia about 2 o'clock in the morning of July 3, 1903, stopped a few minutes, and then pulled out. After going two or three hundred yards from the depot, a brakeman came over the cars and asked Dixon if he had any money, and, being told that he had none, swore at him and told him to get off. He answered that the train was going too fast, and he could not get off, and the brakeman said, 'Now, you son of a b_____, get off,' and thereupon stepped on his fingers (Dixon was holding on the car ladder), and kicked him loose, kicking him on the head and shoulders several times. By reason of such treatment he was forced to let go of his hold on the ladder, and fell down on the track, the wheels of the car running over his arm and mangling it so that amputation was necessary. This was the testimony of Dixon, which was denied by the trainmen, but was a question that was submitted to the discretion of the jury, and may be considered a fact established in the case. Upon trial the jury brought in a verdict for plaintiff in the sum of $1,999.

It is assigned that the court erred (1) in denying defendant's motion for nonsuit made at the close of the testimony; (2) in denying defendant's motion for a new trial, made upon the grounds, among others, that the evidence was insufficient to justify the verdict, and that the verdict was against the law; (3) in allowing the witness Scheelke and the witness Reisinger to testify, over the objection of defendant, to statements made by plaintiff after the accident, to the effect that 'that son of a b_____ of a brakeman kicked him off the train'; (4) in refusing to allow the witness Shields to testify to statements made to him by a stranger, at the time and place of the accident, as to the manner in which it occurred.

The question involved in the first and second assignments, which are argued together in appellant's brief, raises the question of the responsibility of a railroad company for the wanton and willful act of a brakeman resulting in injury to a trespasser, in the absence of evidence showing that the brakeman's act was within the scope of his employment. It is earnestly contended by the respondent, with some degree of reason, that this question cannot be raised in this court by the appellant, it not having been raised in the lower court. With the view we take of the merits of the case, it is not necessary, in the respondent's interest, to discuss this question, and we mention it only to prevent the claim which might be made in some future case, that, under the doctrine of this case, the court had retreated from the position which it has uniformly taken--that a case must be tried in this court upon the same theory on which it was tried below; but, inasmuch as the merits involve an important question, which is sure to rise at some future time, we have concluded to enter upon a discussion thereof.

Of course, there is no question but that there is a sharp distinction drawn by the authorities between passengers and trespassers on a railroad car; but the distinction is an to the duty owing by the company, and not as to tortious acts committed on either passenger or trespasser. A high degree of care on the part of the company is exacted by the law, to insure the safety of the passenger who has for a mutual consideration placed himself in the care and under the charge of the company. To this degree of care the trespasser is, of course, not entitled, for he has no contractual relation with the company, and cannot, therefore, plead, as can a passenger, that there is an implied provision in the contract that the company has employed suitable servants to run its trains. Standing as a naked trespasser, the company is not bound to consider his interests in the selection of its servants, or in the performance of its business in any way. But, notwithstanding this distinction, the law, out of regard for common humanity, will not permit a master to allow his servant to unnecessarily abuse or imperil the life or limb even of a trespasser, and if the company, through its servants, willfully injure him, it will be liable, even though he may have been guilty of contributory negligence. It is well settled generally that a railroad company is responsible in damages to a trespasser for torts committed upon him by a servant who, in the commission of the tort, is acting in the line of his employment and within the scope of his authority; not within the scope of his authority as applied to the commission of the tort, for no authority for such commission could be conferred, but within the scope of his authority to rightfully do the particular thing which he did do in a wrongful manner. And, while the master will be held liable for the willful act of the servant not done to further or protect the master's interest or with a view to the master's service, if the servant is authorized to perform the duty, but in the performance of that duty acts willfully or negligently to the detriment of another, the master will be held liable. So that the pertinent question in this case is, was the brakeman acting within the actual or implied scope of his employment when he committed the act complained of?

Upon this question there is a great conflict of authority; many courts, as asserted by the appellant, holding that it is not within the implied authority of a brakeman to expel trespassers from the company's trains, but that their business, as their name implies, is to attend to the brakes on the cars. Many of the authorities cited by appellant, while discussing incidentally the question involved here, are based upon other principles, and are not of value in determining this question; and others, notably the text-books, simply undertake to give an expression to the general current of authority. Thus, the appellant's citation from Patterson on Railway Accident Law, that the general rule is that, in order to render the railroad liable for the act of the servant, it must also be shown that the particular act which caused the injury was within the scope of the servant's employment, is of little value, for the question here is whether the act committed was within the scope of the servant's employment impliedly. It will not be contended anywhere that the railroad would be liable if the servant was acting entirely without the actual or implied scope of authority, and upon an independent proposition not connected with the master's business. The same author, however, on page 109, after discussing this proposition and citing some cases holding in favor of appellant's contention, says: 'The doctrine of most of the cases, however, is that wherever a railway servant is put in charge of any property of the railway, as a station master in charge of a station, or a conductor in charge of a train, or an engine driver or fireman in charge of an engine, or a brakeman in charge of a car, that servant is necessarily charged with the duty of protecting that particular property, and he is therefore, for that purpose, vested with an implied authority to remove trespassers therefrom; and if he makes a mistake, either by removing a person who is rightfully therein or thereon, or by using unnecessary violence in the removal of a trespasser, the railway must be held liable for all such injuries as result, in the one case from the removal, and in the other case from the unnecessary violence with which that removal is effected.' It is further said, on page 110: 'The doctrine of the last-mentioned class of cases seems to be sound, for, if the person who does the wrongful act be, in fact, a servant of the railway, and if the act be done in furtherance of the general purposes of the railway, and not to accomplish an independent personal purpose on the part of the servant, the railway ought to be held liable therefor, on the ground of an implied delegation to the servant of authority for the performance of the particular act. * * *'

There are, however, many cases cited by the appellant which hold directly that a trakeman is not within the actual or implied scope of his authority or employment when ejecting a trespasser from a train. The most pointed and strongest case on this question, among others, is Farber v. Missouri Pacific Ry. Co., 116 Mo. 81, 22 S.W. 631, 20 L. R. A 350, where it was held that it cannot be assumed, in the absence of proof, that a brakeman on a freight train was authorized to remove a trespasser. And...