Johnson v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 15 May 1913
• Citation: 141 N.W. 430,157 Iowa 738
• Parties: ELMA JOHNSON, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

141 N.W. 430

157 Iowa 738

ELMA JOHNSON, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee

Supreme Court of Iowa, Des Moines

May 15, 1913

Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.

ACTION for personal injuries by reason of the alleged negligence of a brakeman. There was a demurrer to the petition which was sustained, and the plaintiff appeals.

Affirmed.

Ranck & Messer, and T. P. Bence, for appellant.

Carroll Wright (deceased), J. L. Parrish, and Walker & Ferson, for appellee.

OPINION

EVANS J.

The petition is lacking in directness of allegation and much is left therein to mere inference. Considering it, however, in the light of the arguments, the case presented is in brief as follows: The plaintiff lived near by the defendant's right of way. She was the friend of one of the defendant's brakemen. While upon a passing train, he undertook to deliver to her a personal note from himself. He attached it to a torpedo for the purpose of weight and threw the same to the ground near the edge of the right of way near the plaintiff's home. It is alleged also that prior to such time he had "waved at this plaintiff and had by his acts and conduct indicated a friendliness toward her and had thrown off to her magazines and other articles." In pursuance of the intent of the brakeman the plaintiff obtained possession of the note and the torpedo, both being brought to her by a third person, her sister. Later she was injured by the explosion of the torpedo, being unaware of its dangerous character. It is averred also that said brakeman had the care, custody, and control of certain dangerous articles and weapons, namely torpedoes; the care, custody, and control of the same having been intrusted to him by the said defendant company, said torpedoes being instruments placed by them in the hands and care of said employee, and being used in the operation and control of its trains and in giving signals and orders with reference thereto, and particularly with reference to that train upon which said brakeman was working and acting and upon which the said torpedoes were at the time of the happening of the things herein complained of.

The demurrer to the petition was interposed on the general ground that the act of the brakeman which is complained of was not within the scope or in the line of his employment by the defendant; that the act complained of was purely a personal transaction between the brakeman and the plaintiff and sustained no relation to the duties of the brakeman as an employee of the defendant.

Appellant concedes the general proposition that the defendant can not be held liable unless the act complained of was within the real or apparent scope of the brakeman's employment in a legal sense. But she contends that the use of the torpedo in the manner stated was within the scope of his duty because he had been intrusted with the care and custody thereof by the defendant, and that the defendant was therefore bound to see that such torpedoes were so used and cared for as not to expose the public to danger. The petition clearly states a case of negligence against the brakeman. Whether such negligence, however, can be imputed to the defendant depends upon the question first stated. There is a little confusion in the argument at this point a tendency to assume that, if the brakeman owed a duty to protect the plaintiff against the danger of the torpedo, then the defendant would be liable as for the acts of its employee.

We will direct our attention to the one controlling question in the case: Was the act complained of within or without the scope of the brakeman's employment? It is clear on the face of it that the act of the brakeman in attaching a torpedo to a personal note and throwing it to the ground on the right of way near the home of the plaintiff was not an act within the contemplation of his employment. It was not an act which he was required to do for any purpose or under any circumstances in the line of his employment. The act was apparently purely personal between the brakeman and the plaintiff. The plaintiff herself responded to the act of the brakeman as being personal to herself. The question whether the act of a servant in a given case is within the scope of his employment is often a very difficult one, although the books abound in cases on the subject. We find no case which has gone to the extent of holding that such an act as this can be deemed as within the scope of the employment of the servant.

It is contended by appellant that the case of Alsever v. M. & St. L., 115 Iowa 338, is warranty for her present contention. We think otherwise. The general question involved in this case received much consideration in the cited case and we can do no better than to adopt the discussion there contained. That was a case where an engineer of a locomotive playfully operated the blow-off cock of his engine for the purpose of frightening some little girls, one of which fell as the result of her fright and broke her limb. It was held that the act of the engineer was within the scope of his employment. It was a part of his daily duty to operate the blow-off cock at various times, according to the call of his judgment, for the purpose of the cleansing of his engine and perhaps for other appropriate purposes. It was said: "It was part of the engineer's duty to use this blow-off cock. For all the record discloses, he may then have been operating it to cleanse the boiler. There is no evidence to the contrary. Whether, incidentally to cleansing it, he engaged in the diversion of frightening the children, or blew off the steam or spray for that express purpose, however, we think, can make no difference. The company had placed in his charge an instrumentality requiring care in its operation and management. He was doing precisely what the company contemplated he should do when it employed him, i. e., operating the blow-off cock. When this was to be done and how, as said, was left to his discretion, the use of which was also contemplated in his employment, and the company was as responsible for a mistake or willful perversion of judgment in its operation, if within the compass of what he was to do, when amounting to negligence, as for his negligence in doing that which may be conceded to have been necessary." Rounds v. Railway Co., 64 N.Y. 129 (21 Am. Rep. 597); Cooley, Torts, page 534. This distinction is well illustrated by the case of Cobb v. Columbia & G. R. Co., 37 S.C. 194 (15 S.E. 878), where the company was declared liable for the misconduct of the engineer in willfully or wantonly blowing off steam so as to scare a horse and cause it to run away, but not liable for the misconduct of the trainmen, contributing thereto, by shouting. The engineer was doing that which he might, but for the proximity of the horse, lawfully do within the scope of his employment. Trainmen were under no circumstances engaged to do what they did. The one thing was done within the master's business; the other without. And on this principle Kincade v. C. M. & St. Paul, 107 Iowa 682, and Marion v. Railway Co., 59 Iowa 428 at 430, are to be distinguished from the case at bar. The abstract rule or test was stated as follows: "We think the true test that stated by Judge Cooley in his work on Torts (page 536): 'The test of the master's liability is not the motive of the servant, but...