Mississippi Central Railroad Co. v. McWilliams

• Decision Date: 27 November 1916
• Citation: 72 So. 925,112 Miss. 238
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENTRAL RAILROAD COMPANY v. MCWILLIAMS

72 So. 925

112 Miss. 238

MISSISSIPPI CENTRAL RAILROAD COMPANY v. MCWILLIAMS

Supreme Court of Mississippi

November 27, 1916

October 1916

APPEAL from the circuit court of Forest county, HON. PAUL B JOHNSON, Judge.

Suit by Dave McWilliams against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case reversed.

S.E Travis, for appellant.

We deem it unnecessary to deal with the assignments of error seriatim or to discuss all the points raised. The fourth, ninth tenth, eleventh, and twelfth assignments deal with the motion for a peremptory instruction and the sufficiency of the evidence to support a verdict, and may be considered together. We submit that the said motion for a peremptory instruction should have been sustained.

In the first place, the act complained of was not that of the appellant but that of the fireman in his individual capacity and for a purely personal object. The testimony shows without any contradiction and absolutely that appellee's injury resulted from the act of the fireman on the train in question while engaged in his own personal enterprise, throwing wood from the tender for his private use, without the knowledge or consent of the appellant, and the law is well settled that the master is not liable to a servant or any third party injured in such case. 6 Labatt's Master & Servant (2 Ed.), p. 6906; P. & Ft. W. & C. R. R. Co. v. Mauer, 21 Oh. St. 421; Burke v. Shaw, 59 Miss. 443; I C. R. R. Co. v. Latham, 72 Miss. 32; Sullivan v. Morris, 109 Ill.App. 650; Goodloe v. Memphis & C. R. R. Co., 107 Ala. 233; R. R. Co. v. Douglass, 69 Miss. 723; Cotton Warehouse Co. v. Poll, 78 Miss. 147; Walton v. Sleeping Car Co., 2 N.E. 101.

The following authorities are to the same effect: "And a servant, though in charge of a dangerous agency, who acts without any reference to the service for which he is employed, and not for the purpose of performing the work of his employer, but to effect some independent purposes of his own, does not render his master responsible either for his wrongful act or omission. Stephenson v. Southern P. Co., 93 Cal. 558, 15 L. R. A. 475, 27 Am. St. Rep, 223, 29 P. 234; Chicago B. & Q. R. Co. v. Epperson, 26 Ill.App. 79;" 10 L. R. A. (N. S.) note, page 396.

Where drills were carried on train by the baggage man merely to accommodate persons who had no contract relations with the carrier, the carrier receiving no benefit from the transportation and not knowing of or consenting thereto, and the baggageman threw such drills from the train and struck and injured the person to whom they were sent, there was no liability. Walker v. R. R. Co., 42 Am. St. Rep. 547.

Currie & Currie, for appellee.

The appellant assumes that the act complained of was that of the servant, wholly disconnected with the discharge of performance of the master's business. The evidence in this case establishes an entirely different contention. The fireman was in the performance of his duties, and was on duty in the actual discharge of his master's business at the time of the commission of the act producing the injury. Under these conditions, the act of the servant, whether within or without the scope of his employment, is the act of the master, or at least, establishes such a state of fact or condition at the time of the injury as to hold the master liable in damage. We will not attempt to criticize each case cited by appellant, but from a reading of these authorities, it is readily seen that not a single one of them is applicable to the case at bar. With reference to when the servant will be held to be acting within or without the scope of his employment under certain conditions, has been well discussed in the case of Richburger v. American Express Company, 73 Miss. 161, 18 So. 922; Barmore v. V. S. & P. R. Co., 85 Miss. 426, 38 So. 210; McManus v. Crickett, 1 N.E. 106; Railroad Company v. Young, 21 Oh. St. 518.

There is another principle of law decided by the court in this opinion, which we insist is controlling in this case, that is with reference to the master entrusting to his servant machinery or appliances inherently dangerous within themselves. Upon this point the court said: "There is another theory developed by this record, which the appellant was entitled to have submitted to the consideration of the jury. It arose out of the well-established principle of law that the master who entrusts the custody and control of dangerous appliances or agencies to the management of his servants will not be permitted to avoid responsibility for injuries inflicted thereby on the plea that the servant in the particular act complained of, was acting outside of the scope of his employment."

We especially direct the court's attention to this case, which we deem not necessary to quote from further. It is clearly established by this opinion that for the master to escape liability on the ground that the servant was acting beyond the scope of his employment is an exception to the rule. The true rule in such cases imputes liability to the master, and this rule arises from the absolute duty which is owing to the public by those who employ in their business dangerous agencies or appliances, engines or instruments liable, if negligently managed, to result in great damages to others.

By reference to the opinion, it will be seen that Judge WHITFIELD rendered the opinion in the case of Canton Cotton Warehouse Company v. Pool, and that the same Justice rendered a dissenting opinion in the case of Barmore v. American Express Company, above cited, citing in his dissenting opinion, R. R. Co. v. Latham, 72 Miss. 32, Richburger v. V. S. & P. R. Co., 73 Miss. 161, and Canton Cotton Warehouse Company v. Pool. We call the court's attention to this dissenting opinion for this reason: that as contended by appellee these cases are not analogous to the case at bar, and the principles controlling these cases do not control the case at bar. Further, if the court should hold, as counsel for appellant contends, that this case is controlled by the same principles as are involved in the cases referred to in the dissenting opinion of Justice WHITFIELD, then we say: "These cases have been overruled by the opinion of the court in the Richburger case."

The evidence in the case shows conclusively that Knight, the fireman was in the discharge of his duties at the time he himself claims to have thrown the wood from the tender of the engine, and that the train was running at a rate of eight or ten miles per hour. It has been repeatedly held by the courts of...