Greb v. Pennsylvania Railroad Co.

• Decision Date: 11 October 1909
• Docket Number: 230-1908
• Parties: Greb v. Pennsylvania Railroad Company, Appellant (No. 1)
• Court: Pennsylvania Superior Court

41 Pa.Super. 61

Greb v. Pennsylvania Railroad Company, Appellant (No. 1)

No. 230-1908

Superior Court of Pennsylvania

October 11, 1909

Argued April 14, 1909 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 1, Allegheny Co June Term, 1904, No. 975, on verdict for plaintiff in case of Theodore F. Greb v. Pennsylvania Railroad Company.

Trespass to recover for personal injuries. Before Brown, P. J.

The facts are stated in the opinion of the Superior Court.

The court charged in part as follows:

[The plaintiffs in this action allege that while leaving the train and passing along the railway platform an unprovoked assault was made upon them by the conductors or the agents of the railway company.

If that be the fact, namely, an unprovoked assault, they are entitled to recover damages for the assault and injury, the pain and suffering, and in addition, at your discretion, punitive or punishing damages.]

[So you come down to the turning point in these cases. It is alleged by the plaintiffs -- and of course that is undisputed -- that they were passengers on this railway; that this trouble occurred while leaving the train and passing along the platform. That was part of the company property, just as much as though it was the car in which they had been riding. A passenger had the right to walk along the platform to get away from the company's property. If under those circumstances these plaintiffs did not provoke this assault or injury by any misconduct on their own part, and the thing resulted solely from the act of the railway company's agents, then the plaintiffs may recover damages.]

[If this was an unprovoked assault by the agents of the defendant, without any misconduct on the part of the plaintiffs themselves, they would be entitled to recover.]

[If the weight of the testimony satisfies you that there was no misconduct on the part of the plaintiffs, that they did not bring about the assault, did not take any part in it, then they are entitled to recover. The elements of damage are such as have been suggested to you by counsel in his argument to the jury.]

Defendant presented this point:

1. Under the pleadings and all the evidence, the verdict must be for the defendant. Answer: Refused.

Verdict and judgment for plaintiff for $ 500. Defendant appealed.

Errors assigned were above instructions, quoting them.

James F. Miller, with him Patterson, Sterrett & Acheson, for appellant. -- The testimony of the plaintiffs' witnesses shows that the baggage man and the conductor, when they committed upon the plaintiffs the assault alleged, were acting outside of the scope of their authority: Brennan v. Merchant, 205 Pa. 258; McFarlan v. R. R Co., 199 Pa. 408; Pass. Ry. Co. v. Donahue, 70 Pa. 119.

A common carrier is not liable when its servants (in these cases the baggage man and conductor) acting outside of the scope of their authority, and for purposes of their own assault a person who has safely alighted from a train and is proceeding along the station platform to the street: Artherholt v. Motor Co., 27 Pa.Super. 141; Dodge v. Steamship Co., 148 Mass. 207 (19 N.E. 373); Kennedy v. R. R. Co., 32 Pa.Super. 623.

James M. Clark, for appellee. -- A very high degree of care is required of a common carrier as long as the passenger is on the train, and at what juncture this high degree of care is modified is of the utmost importance in determining these cases. It has been held that the railroad company is liable for a willful or intentional trespass by its employee, on the passenger who had not yet entered the train, but was on the platform about to so enter: McFarlan v. Penna. R. R. Co., 199 Pa. 408.

In support of our contention that the relation of the carrier and passenger had not ceased at the time the assault complained of in these cases was committed, we cite the cases of Powell v. R. R. Co., 220 Pa. 638; Keefe v. R. R. Co., 142 Mass. 251 (7 N.E. 874); Brennan v. Merchant & Co., 205 Pa. 258; Rounds v. R. R. Co., 64 N.Y. 129.

When a passenger has alighted from a train the relation of carrier and passenger remains until he has left the premises of the carrier: Hall v. R. R. Co., 36 Pa.Super. 556; Guinney v. Hand, 153 Pa. 404; Brennan v. Merchant & Co., 205 Pa. 258.

Whether the negligent act was within the scope of the servant's employment is a question of fact for the jury: Guinney v. Hand, 153 Pa. 404; Laird v. Traction Co., 166 Pa. 4; Artherholt v. Motor Co., 27 Pa.Super. 141; Art Syndicate v. Ins. Co., 213 Pa. 506.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.

OPINION

RICE, J.

This and the succeeding case are appeals from judgments in favor of Theodore F. Greb and Frank J. Greb. The cases were tried together. The plaintiffs in company with their brother Philip were passengers on the defendant's train from Swissvale to certain stations in Pittsburg. On reaching Wilkinsburg, the next station after Swissvale, there was some trouble over a ticket which Philip presented to the conductor, the result of which was that Philip was put off the train against the protests and objections of the plaintiffs. The train then proceeded on its way, and when it reached the station to which Theodore was destined he went out of the front door of the car to alight. He testified that as he did so C. W. Meek, the baggage master of the train, who was acting also as brakeman, and F. J. Arnold, the conductor, were standing on the platform of the car, and that the former accosted him in these words, " Do you want to take anything out of me?" to which he replied, " No, I ain't looking for a fight." He then alighted from the car and walked back, across one track, to the station platform. This led to the stairway going down to the street. He testified that Meek followed him and that when they were on the station platform -- at a distance described by him as a car's length from the steps of the car from which he had alighted, and by another witness as thirty or forty feet from the train -- Meek again accosted him with the words, " Here you son of a bitch, if you want to take anything out of me here I am; " to which Theodore replied, " No, I ain't looking for trouble." He says that as he then started to walk away Meek struck him a blow which knocked him down and rendered him unconscious, and that he remembered no more of the affair. Frank J. Greb, the plaintiff in the other case, testified that as he stepped out onto the rear platform of the same car he saw Meek and Theodore " tussling" on the station platform, that he went over and may have grabbed Meek for the purpose of getting them apart, and that Arnold, the conductor, came over immediately and struck him, Frank, two or three times upon his head, inflicting scalp wounds. We need not go into greater detail in describing the injuries the plaintiffs claimed to have sustained. Nor need we show wherein the version given by the defendant's witnesses of the affair and of its inducing cause differs irreconcilably in material particulars from those given by the plaintiffs. The verdict of the jury interpreted in the light of the instructions given by the court implies a finding, which for present purposes must be accepted as conclusive, that neither of the plaintiffs provoked the assault by any misconduct on his part. But it must also be borne in mind that according to the plaintiff's own showing the assault did not occur on the train, or while the plaintiff was in the act of entering or alighting from it, but upon the station platform, and that there is no evidence that either of these trainmen, as employees of the defendant, had any control over that part of the railroad premises, or had any duty to perform in respect of the passengers who had left the train at that place.

A master is ordinarily liable to answer in a civil suit for the tortious or wrongful acts of his servants, if those acts are done in the course of his employment in his master's service. In Brennan v. Merchant & Co., 205 Pa. 258 54 A. 891, this statement of the general rule as given by Mr. Justice Andrews in Rounds v. Delaware & Hudson R. R. Co., 64 N.Y. 129, was quoted with approval: " It is in general sufficient to make the master responsible that he gave to the servant an authority, or made it his duty, to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his duty, or inflicted an unnecessary injury in executing his master's orders. The master who puts the servant in a place of trust or responsibility, and commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury upon another." Not every deviation of the servant from the strict execution of his duty, nor every excessive use of force therein, nor every disregard of particular instructions will be such an interruption of the course of employment as to determine or suspend responsibility. " But, where there is not merely deviation, but a total departure from the course of the master's business, so that the servant may be said to be 'on a frolic of his own' the master is no longer answerable for the servant's conduct:" Pollock on Torts (Bl. ed.), * 74. " For a willful or intentional trespass by an...