Illinois Cent. R. Co. v. Latham

• Decision Date: 10 December 1894
• Citation: 16 So. 757,72 Miss. 32
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. LINCOLN LATHAM

16 So. 757

72 Miss. 32

ILLINOIS CENTRAL RAILROAD CO. v. LINCOLN LATHAM

Supreme Court of Mississippi

December 10, 1894

FROM the circuit court of the first district of Panola county. HON. EUGENE JOHNSON, Judge.

Action by Lincoln Latham against the Illinois Central Railroad Company to recover damages for personal injuries. The facts are stated in the opinion. There was a judgment for plaintiff for $ 2,500. Motion for a new trial overruled, and defendant appeals.

Judgment reversed and cause remanded.

Mayes &amp Harris, for appellant.

On the facts of this Case plaintiff was not entitled to recover. If we concede that the brakeman had authority generally to eject trespassers from freight trains, we think that this case comes within the principle laid down in the New York cases to the effect that the company is not liable when the brakeman uses his authority as a mere cover for the accomplishment of an independent and wrongful purpose of his own. 87 N.Y. 32; 64 Ib., 129.

Assuming Latham's testimony to be true, it is manifest that the brakeman was using his authority, if he had it, as a mere cover to extort money from Latham for his own use. Plaintiff was riding on top of a car to avoid paying fare. The regular fare was $ 1.50. The brakeman, who, by the rules of the company, was required to notify the conductor, concealed his presence, and demanded of him fifty cents. The brakeman had no authority to eject a trespasser, except under the orders of the conductor. It is perfectly clear that the brakeman did not act within the scope of his duty, but was subordinating his master's business to his own interest and for his own personal gain. See 82 Tex. 561; 86 Penn., 418; 8 Am. & Eng R. R. Cas., 117; 35 W.Va. 492. On the general question as to the authority of a brakeman, see 116 Mo. 81; 56 F. 1014.

The case is controlled by Railroad Co. v. McAfee, 71 Miss. 70, and Railroad Co. v. Harris, Ib., 74.

G. D. Shands, for appellee.

On the question whether the brakeman who ejected plaintiff was on duty, and acted within the scope of his duties, there is a sharp conflict of evidence, and the question was for the jury. Railroad Co. v. Cantrell, 70 Miss. 329. It is within the scope of a brakeman's duty to eject trespassers. Railroad Co. v. Kelly, 14 P. 172.

It was shown by oral evidence and by the printed rules of the company that it is the duty and the common practice of appellant's brakemen to exclude trespassers on failure to pay fare. The mere custom of doing this is enough to establish that it was their duty. 3 Am. St. R., 220, s.c. 48 Ark. 187. Whether the act of a servant is within the scope of his duty is for the jury. 120 N.Y. 117; 17 Am. St. R., 611.

A master is responsible for the mode in which a servant performs an act within the scope of his duty. 27 Am. St. R., 901; Railroad Co. v. Seals, 13 So. (Ala.), 917. The case differs from Railroad Co. v. McAfee, in that this plaintiff was thrown off because he either would not or could not pay fifty cents for fare. If it be true that the brakeman intended to appropriate the money to his own use, it was without the knowledge or collusion of plaintiff, and does not relieve the company from responsibility.

Argued orally by J. B. Harris, for appellant.

OPINION

WHITFIELD, J.

Accepting the plaintiff's testimony as true, it appears that he was riding on top of the coach to avoid the payment of his fare, and did not go back to the caboose because he feared the conductor would say something. He got on at Memphis to go to Sardis. The fare was $ 1.50. The brakeman did not demand $ 1.50, but fifty cents; he did not eject him when the demand for fifty cents was first made and declined, and not until the transit was nearly terminated. Under the rules, introduced by plaintiff, and as explained by Homer Williams, a witness for plaintiff, it would have been the duty of the brakeman to report to the conductor the presence of plaintiff on the train, and act as to his ejection under the conductor's orders. The brakeman made no report to the conductor whatever, but acted independently of him. Failing to get the money--the fifty cents--he cursed the plaintiff and shoved him off the moving train. Surely, in no just and reasonable view can it be held that in the acts of the brakeman thus done was he acting in his master's business, or with intent to perform any duty due to the master. He was not demanding "fare," but money to put in his pocket. He did not eject him under the orders of the conductor, nor when--aside from any orders of the conductor--he first discovered him, nor at the next station. He was plainly attempting to extort money for his private use.

We are not prepared to hold that it may not be the implied duty of a brakeman to eject trespassers, on the idea clearly put by Judge Andrews in 87 N.Y. 25, 28, that "the implied authority in such a case is an inference from the...