Gibson v. Kennedy, A--50
| Decision Date | 14 January 1957 |
| Docket Number | No. A--50,A--50 |
| Citation | 23 N.J. 150,128 A.2d 480 |
| Parties | George GIBSON, Plaintiff-Respondent, v. Gerard KENNEDY, Defendant, and Pennsylvania Railroad Company, a corporation of Pennsylvania, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Stephen Vr. Strong, New Brunswick, for appellant
John J. Rafferty, New Brunswick, for respondent (Rafferty & Blacher, New Brunswick, attorneys; Philip Blacher, New Brunswick, of counsel).
The opinion of the court was delivered by
Defendant, Pennsylvania Railroad Company, appealed to the Appellate Division from a judgment against it in the sum of $25,000 entered upon a jury verdict. We certified the appeal on our own motion. The judgment also ran against defendant's employee, Kennedy, who, however, did not appeal.
The action with respect to the railroad was grounded upon the Federal Employers' Liability Act, 45 U.S.C.A., sec. 51, which provides that a railroad engaged in interstate commerce shall be liable for injury to or death of its employees 'resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.'
The litigation arose out of an assault and battery by Kennedy upon plaintiff. The complaint pursued two theories. One was that defendant continued to employ Kennedy despite knowledge of his dangerous character. The trial court resolved this charge in defendant's favor at the close of plaintiff's case. The other approach, upon which plaintiff prevailed, was that Kennedy's conduct constituted negligence for which defendant was chargeable under Respondeat superior.
As the statute has been construed, with binding effect upon us, Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), 'negligence' embraces an assault and battery, and the employer must respond if it was committed by an employee in the scope of his employment with the purpose of furthering the employer's business. Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082 (1930); Alpha Steamship Corp. v. Cain, 281 U.S. 642, 50 S.Ct. 443, 74 L.Ed. 1086 (1930); Nelson v. American-West African Line, Inc., 86 F.2d 730 (2d Cir. 1936), certiorari denied 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873 (1937); Smith v. Lehigh Valley R. Co., 174 F.2d 592 (2d Cir. 1949); Jester v. Southern Ry. Co., 204 S.C. 395, 29 S.E.2d 768, 156 A.L.R. 632 (Sup.Ct.1944), certiorari denied 323 U.S. 716, 65 S.Ct. 44, 89 L.Ed. 576 (1944); Annotation, 33 A.L.R.2d 1295 (1954).
Defendant urges it was error to send the case to the jury and to deny a motion for a new trial.
Defendant insists the testimony will reasonably admit of the single conclusion that Kennedy's attack was motivated solely by personal animosity and hence defendant should not be held. Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299 (1922). In our view, however, the evidence abundantly supports a finding that Kennedy committed the tort in the discharge of his duties and with the purpose of furthering his employer's business under orders as he understood them, albeit that this purpose may have been concurrently attended by a desire to retaliate for personal pique.
The attack occurred on November 4, 1953. On that day, Kennedy was a passenger conductor in charge of a train travelling from New York City to Trenton, N.J., with instructions, as he testified, to proceed 'deadhead' from New Brunswick to Trenton. He understood defendant's regulation to mean that all passengers had to alight at New Brunswick, and that employees of the road likewise had to leave at that stop unless expressly authorized to proceed 'deadhead' beyond that point. As indicative of his understanding of the regulation, Kennedy said he directed a member of his crew whose duty ended at New Brunswick to leave the train at that station, notwithstanding the employee lived in Trenton.
Plaintiff had boarded the train at Elizabeth as a special duty conductor under orders from the trainmaster, who had over-all charge, to observe for violations of regulations. Plaintiff, in fact, was authorized to continue to Trenton. Kennedy, however, testified he knew plaintiff as a passenger conductor, although he also knew plaintiff at times served as the trainmaster's representative. According to plaintiff, he did serve as a passenger conductor at times, although his role as special duty conductor was the usual one. Plaintiff recalled only three prior occasions when he served as a special duty conductor on a train on which Kennedy worked and one occasion when he and Kennedy worked together as conductors.
Plaintiff said that when the train reached New Brunswick Kennedy announced 'all passengers off, New Brunswick is the last stop,' and asked plaintiff where he was going, to which plaintiff replied that he represented the trainmaster and had orders to go to Trenton on that train, and on demand exhibited his transportation pass; that Kennedy said the pass did not evidence the claimed authorization and insisted plaintiff get off, to which plaintiff asserted his intent to remain. Kennedy's version was quite different and was supported by members of his crew, Grady and Saams. Kennedy denied plaintiff revealed he was riding as the trainmaster's representative or showed any pass, and said that when he asked plaintiff to leave he 'replied to me in an abusive tone that I was 'To get the hell out of there' and mind my own business.' Kennedy added that if plaintiff had claimed he was authorized to remain, he would have accepted his statement.
Kennedy said the situation in which a passenger refused to leave at the last stop had never before confronted him. He left the train and inquired of the ticket agent, Hayes whether a railroad policeman was available, and was told that none was and that the New Brunswick police would not act except upon a complaint, which Kennedy did not wish to make, since
Meantime, plaintiff alighted from the train to ascertain the reason for the delay and met Kennedy returning from the ticket agent's office. The testimony again diverges. Plaintiff said he asked Kennedy what the delay was and Kennedy replied, 'You are the delay to the train', and that the train would proceed but 'you are not going to go'; that he followed Kennedy for some 35 to 40 feet, walking on his left, 'when suddenly Kennedy turned around and swung his lantern and hit me in the eye and the side of the face'; that he was dazed and attempted to follow Kennedy into the train but as he mounted the first step Kennedy, then on the platform of the train, again struck him with the lantern, rendering him unconscious. Kennedy, on the other hand, testified that when he passed plaintiff on the railroad platform, plaintiff asked if the train was going to leave and he answered that it was; that he walked past plaintiff and proceeded about 100 feet and signaled for the train to move; that as he attempted to board the train plaintiff struck him without warning, 'attempting then to continue to force his way onto the train'; that he, Kennedy, defending himself, lashed out with both fists, but did not strike plaintiff with the lantern. There was other testimony supporting Kennedy's claim of an injury to his left cheek, but his disclaimer of the use of the lantern was not believable in the absence of some other explanation of the severe injuries to plaintiff, and no other specific explanation was offered.
The jurors were not bound to accept all of the testimony of any witness, but rather could accept such portions as they deemed worthy of belief. The foregoing re sume easily reveals a sufficient basis for a finding that Kennedy, who was in charge of the train, acted in the scope of his employment, and that with the purpose of furthering defendant's business and its regulation against riding 'deadhead,' he sought to prevent a person he believed to be unauthorized from boarding the train.
Defendant's insistence that the motivation was solely personal rests upon these circumstances. About 15 months before the event here involved, plaintiff testified in a disciplinary proceeding against Kennedy with respect to a complaint which, however, plaintiff had not advanced. Further, two days before the event here involved, plaintiff observed Saams, a member of Kennedy's crew, smoking a cigarette at the Pennsylvania station and either told Saams to put out the cigarette or to assist the passengers. On that occasion, Kennedy asked plaintiff to report to him any complaints relating to his crew. Both plaintiff and Kennedy disclaimed any ill feeling as the result of either affair and both deemed their relations to be friendly, plaintiff adding, 'he was very cooperative with me, I had no trouble with Mr. Kennedy.' Stress is also placed on the testimony of the ticket agent, Hayes, that when he asked Kennedy who the recalcitrant passenger was, Kennedy replied that he did not know. But the jury was free to accept Kennedy's testimony that Hayes never put that question and that there was no occasion in the conversation for Kennedy to identify the passenger. Lastly, defendant points out that Kennedy could have used the telephone at the station to seek further instructions from a superior, but did not.
Although the jury could have concluded from these circumstances, coupled with the severity of the attack, that Kennedy harbored a grievance and sought to satisfy it, yet the jury with equal justification could have found private motive played no role at all, or in any event, although concurring, did not exclude the purpose to further defendant's business. Restatement, Agency, sec. 236 (1933). As said in Nelson v. American-West African Line, Inc., ...
To continue reading
Request your trial
-
Schultz v. Roman Catholic Archdiocese of Newark
...is negligent or intentional. In practice, only rarely do intentional torts fall within the scope of employment. See Gibson v. Kennedy, 23 N.J. 150, 128 A.2d 480 (1957) (railroad liable for employee who assaulted fellow employee during dispute as to his right to ride on train); W. Prosser, H......
-
Cosgrove v. Lawrence
...Agency 2d, supra. Third, the conduct must be actuated, at least in part, by a purpose to serve the master. In Gibson v. Kennedy, 23 N.J. 150, 128 A.2d 480 (1957), the Court held that the evidence properly presented a jury question as to whether an assault and battery upon plaintiff, during ......
-
Shadel v. Shell Oil Co.
...exceeded the scope of whatever authority existed as a matter of law. This argument is clearly without merit. See Gibson v. Kennedy, 23 N.J. 150, 128 A.2d 480 (1957); Johnston v. American Oil Company, ...
-
Brijall v. Harrah's Atl. City
...and discharge of defendant's business and within the scope and limits of [the employee's] employment.” Id.; see also Gibson v. Kennedy, 23 N.J. 150, 128 A.2d 480 (1957) (holding that a reasonable jury could find that a railroad conductor who was in charge of a train was acting within the sc......