Marion v. Chicago Rock Island & Pacific R'y Co.

• Decision Date: 22 October 1884
• Citation: 21 N.W. 86,64 Iowa 568
• Parties: MARION v. THE CHICAGO ROCK ISLAND & PACIFIC R'Y CO
• Court: Iowa Supreme Court

21 N.W. 86

64 Iowa 568

MARION v. THE CHICAGO ROCK ISLAND & PACIFIC R'Y CO

Supreme Court of Iowa, Dubuque

October 22, 1884

Appeal from Keokuk District Court.

THIS is an action to recover damages for a personal injury, received by the plaintiff by being forcibly removed from a railroad train by a brakeman in the employ of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

AFFIRMED.

M. A Low, for appellant.

McCoid Brighton & Jacques, H. N. West and Sampson & Brown, for appellee.

OPINION

ROTHROCK, CH. J.

I. It is averred in the petition that, as a freight train of the defendant was passing through the city of Fairfield, the plaintiff, without the consent of the company, and without a ticket, and while the train was in motion, got upon the train by climbing upon the iron ladder upon the side of a box freight car.

"That after he had gotten upon said car, and before he had succeeded in climbing on top, the speed of the train increased, and it passed where it was dangerous to life and limb for him to leave it; and while in such position on the ladder of the freight car, and well knowing that he could have climbed upon the car, remained where he was, or gotten off, had the train stopped or slackened up at some less dangerous place, in safety, the brakeman on said train, in the course of his employment, ordered him off, and when he failed to get off, because of the great danger to his life, while pleading for his life, pushed him and cruelly and inhumanly tramped upon his hand and fingers, and negligently, willfully and criminally forced him, without fault on his part, from the car, causing him to fall therefrom through Crow creek bridge, a great height, breaking his thigh in two places, bruising and cutting his body in different places, etc. That the brakeman was, in the line of his duty, authorized to put plaintiff off the train."

The defendant objected to any evidence in support of the allegations of the petition, because it appeared from the same that the defendant was not liable, in that it did not show that the brakeman charged with ejecting the plaintiff had authority to do so, and that, if the allegations of the petition are true, the brakeman was guilty of a felonious assault, for which the defendant would not be liable.

And the defendant asked the court to instruct the jury as follows:

"6. If the jury find from the evidence that the brakeman willfully and maliciously, intending thereby to inflict great bodily harm upon plaintiff, kicked or pushed plaintiff from the car while it was moving at a rapid rate of speed, causing the injuries complained of, they must find for the defendant."

These two propositions, that is, the overruling of the motion to exclude the evidence, and the refusal to give the above instruction, present substantially the same question, and they may properly be examined together. And for the purposes of this examination it will be assumed that the brakeman was authorized to remove persons from the train who sought to take passage thereon without tickets, or who, for any reason, had no right to go on the train or remain thereon.

It is claimed by counsel for appellant that, if the petition and plaintiff's testimony be true, the assault was felonious, and was an act wholly without the scope of the brakeman's authority. A large number of cases are cited upon the question as to the liability of a master for a wanton, willful, and intentional wrong of his servant. Among the authorities which hold that the master is not liable in such cases are, De Camp v. Mississippi & Missouri Railroad Company, 12 Iowa 348; Cooke v. Illinois Central Railroad Company, 30 Iowa 202; Cleveland v. Newsom, 45 Mich. 62, 7 N.W. 222; Fraser v. Freeman, 43 N.Y. 566, and Howe v. Newmarch, 12 Allen 49.

In the case of McKinley v. The Chicago & Northwestern Railroad Company, 44 Iowa 314, De Camp's case and Cooke's case, above cited, were distinguished from McKinley's case, upon the ground that in the latter the injury was done to a passenger, while in the former it was done to live stock, respecting which the duty of the railroad company was entirely different. It is said, however, in that case: "If we were left to determine the question upon principle, whether an employer should be held liable for the willful or criminal acts of the employe done in the course of his employment, we should have very little or no hesitation in affirming such liability, and this because the employer has placed the employe in a position to do wrong, and, it being done in the course of his employment, the intent with which it was done should not affect the liability of the employer, whether the intent be good or ill. So long as he acts within the scope of his employment, the employer should be bound. The decided weight and number of the authorities are in accord with this view."

McKinley's cause of action accrued to him on March 22, 1872. In April of the same year, the legislature of this state passed an act which provided, "that every corporation and person owning and operating a railroad in this state shall be liable for all damages sustained by any person in consequence of the willful wrongs, whether of commission or omission, of their agents and employes, when such wrongs are in any manner connected with the use and operation of any railroad so owned or operated, on or about which they shall be employed."

The substance of this act was afterward incorporated into section 1307 of the Code. It will be seen that the cases of De Camp v. R. R. and Cooke v. R. R., and McKinley v. R. R., so far as it approves the two former cases, are no longer applicable under the laws of this state.

If, therefore, the brakeman in this case had authority to remove persons from trains, the defendant is liable for any willful wrong he may have done in removing the plaintiff, and it is wholly immaterial what motive he had, or with what malice the act was done. Indeed, in a former appeal in this case, we said "that, if the conductor had forced the plaintiff from the train while in motion, and while crossing a bridge, the act would very clearly, under the evidence, be deemed to be in the course of his employment, and that, too, even if it were shown that he had been expressly instructed to eject no person from the train when in motion, especially when crossing a place as dangerous as a bridge. In one sense, the specific act would not be in the course of his employment, but his general employment to remove trespassers from the train would be sufficient to render the company liable." So that, if the act which produce the injury be done in the course of the employment of the wrongdoer, the company is liable, whether the act be merely one of negligence, or a willful and criminal wrong. Suppose that a conductor should have occasion to eject a person from a train for refusal to pay his fare, and should conceive that the better way to eject him would be first to disable him by knocking him down, and in doing so should kill him; surely the company would be liable, and it would be wholly immaterial, so far, at least, as compensatory damages are involved, whether the conductor was actuated by malice, or was guilty of murder or manslaughter.

II. The court permitted the plaintiff to testify, over the objection of the defendant, that he told the brakeman...