Hamilton v. Chicago, M. & St. P.R. Co.

• Citation: 93 N.W. 594,119 Iowa 650
• Parties: JAMES HAMILTON, by His Next Friend, R. F. Douglas, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY. Appellant
• Decision Date: 12 February 1903
• Court: Iowa Supreme Court

93 N.W. 594

119 Iowa 650

JAMES HAMILTON, by His Next Friend, R. F. Douglas, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY. Appellant

Supreme Court of Iowa, Des Moines

February 12, 1903

Appeal from Linn District Court.--HON. H. M. REMLEY, Judge.

ACTION to recover damages for personal injuries inflicted on plaintiff by a conductor in charge of one of defendant's trains. Verdict for plaintiff for $ 50. From judgment on the verdict, defendant appeals.

Affirmed.

J. C Cook for appellant.

P. W Tourtellot and W. E. Steele for appellee.

OPINION

MCCLAIN, J.

Just prior to the injury complained of, plaintiff had been riding on the platform of a car of a passenger train of defendant, confessedly as a trespasser. Being driven from the platform by a brakeman while the train was stopped at a railroad crossing, plaintiff climbed upon another platform, after the train was in motion. Again the train was stopped, and he was put off. When the train was started a second time, he climbed on the rear steps of the last coach, and stood outside of the vestibule doors. The conductor of the train opened the doors from the inside, seized plaintiff by the collar, and slapped and beat him with his hand; and, when plaintiff exclaimed, "Don't kill me " the conductor responded, "No, I won't kill you, but I give you to understand when the train is stopped twice and you are put off you will stay off." Thereupon the train was again stopped, and plaintiff was put off or got off. This action is to recover damages for the beating.

Counsel for defendant contends that the acts of the conductor were outside of the scope of his authority, and, as plaintiff was a trespasser, the defendant is not liable. It is not easy to determine in every case what acts are so far the result of personal motives of the servant as to relieve the master from liability therefor, where the servant is at the time engaged in general in the discharge of duties for his master. There is no question that if, in removing plaintiff as a trespasser, the defendant's conductor, who was charged with the duty of removing trespassers from the train, caused him to suffer personal injury by reason of attempting to put him off at a dangerous place or by using unreasonable and unnecessary violence, the defendant would be liable for his acts, even though they were wanton, willful, malicious and unlawful. Marion v. C. R. I. & P. R. Co., 64 Iowa 568, 21 N.W. 86; ...