Drake v. Kiely

• Decision Date: 05 May 1879
• Citation: 93 Pa. 492
• Parties: Drake <I>versus</I> Kiely.
• Court: Pennsylvania Supreme Court

Page 492

93 Pa. 492

Drake versus Kiely.

Supreme Court of Pennsylvania.

March 10, 1879.

May 5, 1879.

March 10th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Bradford county: Of January Term 1877, No. 55.

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E. B. Parsons and Delos Rockwell, for plaintiffs in error.—The sickness of the lad was too remote a consequence of his being put on the train. The defendants are only liable for such damages as their acts directly caused, and not for the consequences of intervening causes over which they have no control, and which had no connection with putting plaintiff on the car: Hoag v. Michigan Southern Railroad Co., 4 Norris 293. See also Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353; Ryan v. New York Central Railroad Co., 35 N. Y. 210; Oil Creek Railroad Co. v. Keighron, 24 P. F. Smith 320.

The master as such is not liable for the trespasses of his servant, unless the particular wrongful act of the servant was ordered by the master, or in other words, unless the master be the immediate cause of the injury. Even then he is not liable because he is the master, but because the act is personally and immediately his: Yeager v. Warren, 7 Casey 219.

B. S. Bentley and Davies & Carnochan, for defendant in error.

Mr. Justice STERRETT delivered the opinion of the court, May 5th 1879.

The trespass in this case was clearly established by undisputed testimony. The only matters about which there could be any difference of opinion were whether the defendants below were joint trespassers, whether the trespass was the proximate cause of all or only some of the injuries complained of, and, as a sequence thereof, what amount of damage the plaintiff was entitled to recover. There were all questions of fact, exclusively for the jury, and considering the charge as a whole they were submitted with instructions of which the plaintiff in error has no reason to complain. As to the fact of joint trespass, the testimony was such that the court was bound to submit it to the jury. The plaintiff himself testified that George Drake, after forcing him into the car, locked him up in the closet, and that the other defendant directed George to put him on the car. The witness says: "He caught hold of me and dragged me and put me in the car. His father, James H. Drake, said, put him on. He, George Drake, took hold of me to put me on the car; I took hold of the railing; he pulled me from it; took me in the car; put me in the closet, and left me quite a while, until the train started. I cried and asked him to let me out; they would not let me out; James H. Drake was on the platform when he told George to put me on the car. After the train had started, George came and let me out, and was going to let me off the train. His father told him to keep me on, and he took me up to Columbia X Roads." It is true we find in the defendants' testimony a different version of the transaction, so far as the conduct of James H. Drake at the outset is concerned, but it was the exclusive province of the jury to determine which was correct. If they believed the boy, the defendants were beyond doubt joint trespassers. After speaking of the conduct of George Drake, and pronouncing it an unqualified trespass, the learned judge proceeded to say that "if James H. Drake was present, directing and consenting to the act of George in putting him on the car, they were joint trespassers, and the plaintiff is entitled to recover against both such damages as the jury find, under the evidence, he sustained at their hands." In a subsequent part of the charge, the attention of the jury was again called to this feature of the case, in such a manner that they could not fail to comprehend the principle by which they were to be guided in determining the question of joint liability. They were told there could be no recovery against James H. Drake, "if he had no knowledge of the acts of his son in putting the plaintiff on the car, and knew nothing about the matter until the train had gone from the station a quarter or half a mile. He did not make himself a joint trespasser in refusing to stop the train and allow the boy to get off, although by this refusal the injury the plaintiff sustained was produced in part by the acts of both defendants, if there was no concert between them. Where two or more commit separate trespasses, tending to produce an injury to another, there is no joint liability, and can be no joint recovery. This, however, will not prevent a recovery against George Drake under the instructions already given, but there must be no recovery against James H. Drake unless the jury find from the evidence that he was a joint trespasser." What more could this defendant ask at the hands of the court? Under the instructions thus given, the jury, if they had adopted his version of the transaction, would have been bound to return a verdict in his favor. The result evidently showed that they did not do so. They believed the plaintiff's statement, and we are not at all prepared to say they were not right in so doing. The circumstances disclosed by the testimony tended rather to corroborate him, and at the same time render it difficult to understand how such an outrage could occur while the train was stopping at the station, and the conductor not be aware of it. If he was present, and cognizant of the trespass that was being committed, he owed it as a duty to himself and all concerned to assert his authority and prevent further wrong, and if he neglected to do so, it would not be unreasonable to infer consent thereto on his...