Illinois Cent. R. Co. v. Green

• Decision Date: 15 January 1923
• Docket Number: 22946
• Citation: 94 So. 793,130 Miss. 622
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. GREEN

94 So. 793

130 Miss. 622

ILLINOIS CENT. R. CO. v. GREEN

No. 22946

Supreme Court of Mississippi

January 15, 1923

September 1922

1 RAILROADS. Fireman not within scope of employment in ejecting trespasser.

A railroad fireman, employed to coal the engine and do such other incidental work in and about the engine and tender as was necessary to operate the engine, had no authority, and was acting beyond the scope of his employment, in leaving the engine and going back over the train to eject a trespasser and, if he did so and assaulted the trespasser, the employer was not liable.

2 RAILROADS. Company not liable for malicious shooting of trespasser by employee.

Conceding that it was the duty of a railroad fireman to leave his engine and go back upon the running train and eject trespassers, where the shooting of a trespasser was not done in furtherance of the master's business while attempting to eject the trespasser, but willfully and maliciously without warning, and for some personal malicious and unlawful motive, without authority from the railroad company, it was not liable in damages.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Madison county, HON. W. H. POTTER, Judge.

Action by Wilson Green, Jr., by his next friend, against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment entered for defendant.

Judgment reversed.

Mays, Saunders & McLaurin, for appellant.

The peremptory instruction requested by the defendant, we respectfully submit, should have been given. If the plaintiff told the truth, the fireman left his duties about the engine and crept back to where the plaintiff was stealing a ride and committed a murderous assault upon him by shooting him with a pistol. Both on his direct and cross-examination, the plaintiff insisted that the man who shot him was the fireman on the train. If any member of the train crew shot the appellee it was the fireman. The fireman testified that he stayed on his engine from the time he left Martin until he got to the next station, and stated further. "I had no business about the train."

It is one of the fundamental principles of the law of master and servant that the master is not liable for wilful or negligent acts of servants committed outside the scope of the servant's employment, unless such act was directed to be done or ratified by the master. Railway Co. v. Harrison, 48 Miss. 112; L. & N. R. Co. v. Douglass, 69 Miss. 723, Vicksburg Waterworks Co. v. Gorman, 70 Miss. 360; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 360; A. & V. Ry. Co. v. McAfee, 71 Miss. 70; A. & V. Ry. Co. v. Harz, 88 Miss. 601; I. C. R. R. Co. v. Lofton, 72 Miss. 32; Moore Stave Co v. Wells, 111 Miss. 796.

We have listed some, but by no means all of the decisions of this court announcing the rule as above stated. Many of those cases are cited as leading cases by the courts of the country and by text-writers. The only question for consideration on this phase of the case is whether the fireman whom the plaintiff says shot him with a pistol was at the time acting within the scope of his employment. That question, we confidently submit, must be answered in the negative. In addition to the positive and uncontradicted evidence that the fireman had nothing to do with the ejection of trespassers from the train is the common knowledge of mankind on the subject, and the presumption attaches in the absence of evidence, that the fireman has no duties except about the engine. We have already referred to the testimony of the fireman to the effect that he never left his engine and that he had no business about the train, and that, we submit, answers the inquiry. But if there had been no evidence on the subject, we respectfully submit that this court would take judicial notice of the fact that the fireman had no business about the management of the train and nothing to do with the ejection of trespassers from the train.

"Courts judicially know that a railway is a common carrier; that it is not an eleemosynary institution, but carries for hire, and other matters of general knowledge relating to railroads." American & English Encyclopedia of Evidence, vol. 7, p. 941, and notes; 15 R. C. L., page 1124, par. 52; Mason v. Richmond, etc., R. F. Co., 32 Am. St. Rep. (N. Car.) 814.

We respectfully submit that the judgment of the court below, for the reasons assigned, should be reversed and the suit dismissed.

H. B. & J. M. Greaves, for appellee.

Replying to the argument of the defendant, with regard to the peremptory instructions being granted for the defendant, we will note the authorities cited on page 4, first. Railroad Co. v. Harrison, 48 Miss. 112. This case has been expressly overruled by this court in Richburg v. Express Co., 73 Miss. 161. See that part of opinion by WHITFIELD, J., page 170. L. & N. Railroad Co. v. Douglas, 69 Miss. 728.

This case is not an authority here, because there the baggageman and expressman were preparing to play a practical joke on the plaintiff, when the negro got frightened, and jumped out of the train. Note also the case of Canton Warehouse Co. v. Pool, 78 Miss. 147.

This case was where some young men in the city of Canton, invited Mr. Pool to go and inspect the ice plant, in order to play a practical joke on Pool, which they did, frightening Pool, who jumped from the ice house platform and was injured. This latter case, Canton Warehouse Co. v. Pool, is fully distinguished in Magouik v. Telephone Co., 79 Miss. 637. The case of Waterworks Co. v. Gorman, 70 Miss. 360, has no application to this case whatever. A. & V. Railroad Co. v. McAfee, 71 Miss. 70, we will discuss later. A. & V. Railroad Co. v. Hartz, 88 Miss. 681, has no application here as it was simply a suit brought against the Railroad Company to recover damages because of a personal difficulty between the employees. These cases are all cited in: 123 Miss. 264, 91 So. 700, and the facts of each case show that it is no authority here.

The case of Moore Stave Co. v. Wells, 111 Miss. 796. This is no authority here, as that was a mere personal matter between a servant of the Stave Company and Wells, and had nothing to do with the employee's business.

We will now consider the case of A. & V. Railroad Co. v. McAfee, 71 Miss. 70, which is very much relied on by the appellant and cited again in his brief in the middle of page 7. In this case a member of the crew on a freight train, was undertaking to collect fare from the negro, and in a struggle which ensued, the brakeman, who was not trying to eject the plaintiff from the train, but simply to collect fare, for the brakeman's own personal use, threw the negro from the train, thereby injuring him. This case I find cited in the following reports: 72 Miss. 36; 123 Miss. 264; 91 So. 344, 700. We also find this case cited in the notes of 5 L. R. A. (N. S.), page 1025.

Now, we will refer to the first citation of this case in the case of the Railroad Co. v. Latham, 72 Miss. 32. In this case the opinion was delivered by WHITFIELD, J., and here differentiates between a case where recovery can be had, and a case where recovery cannot be had. If the court has any question in its mind about our right to recover in this case, I would respectfully suggest that it read the opinion of WHITFIELD, J., in this case and the two cases cited by WHITFIELD, J., on page 35. Kansas City Railroad Co. v. Kelly, 14 P. 173.

I am a little surprised at the appellant basing his argument and hope of reversal on this theory, that: "The court should know that neither the fireman or engineer eject trespassers." . . . This argument being in the face of their witnesses' testimony, which I will quote as follows: Mr. Scott, the conductor of the train on which the negro was shot, testified on page 95 of the testimony, and being page , of the record, as follows in answer to my question: "Q. Aint it a fact that the rules of the railroad company require you and your crew, whenever you see a man get on the train, to go and get him off there? A. The rules have been that way, but it is so hard to keep them off, they have been left with us." Again, we respectfully submit that nothing in the cases cited covers anything in this case.

The case we find most directly in point, is the case of Illinois Central Railroad Co. v. Brown, 39 So. 531, decided December 18, 1905, by TRULY, J. This case is on all-fours with our case in every respect and we request the court to read the statement of facts, in that case, and the opinion of the court.

We call the court's attention to Christian v. I. C. Railroad Co., 71 Miss. 237. See the case of Thompson v. Railroad Co., 72 Miss. 715, in which the court held that it is for the jury to determine the wanton and wilful negligence in the defendant's servants, ordering a trespasser to leave the train, while the same was in rapid motion. See the case of Fore v. Railroad Co., 87 Miss. 221.

Replying further to the suggestion that the court should have given a peremptory instruction. This court has always held that occasionally it was the duty of the trial court to set aside a verdict and grant a new trial, but only where the judge is of the opinion that the finding of the jury is clearly against the great preponderance of the evidence. Judge CALHOUN said (not quoting) that it must be a rare occasion indeed where the judge should undertake to take the case from the jury. See the case of Fore v. Railroad Co., 87 Miss. 211.

There are a long line of decisions, unnecessary for me to cite which hold that it is the rarest case, where there is conflicting evidence, which will permit the judge to take the case...