Passenger Railway Co. v. Donahue

• Decision Date: 13 November 1871
• Court: Pennsylvania Supreme Court
• Parties: Pittsburg, Allegheny and Manchester Passenger Railway Company <I>versus</I> Donahue.

Page 119

70 Pa. 119

Pittsburg, Allegheny and Manchester Passenger Railway Company versus Donahue.

Supreme Court of Pennsylvania.

November 7, 1871.

November 13, 1871.

November 7th 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 18, to October and November Term 1871 D. W. & A. S. Bell and A. M. Brown, for plaintiffs in error. —The act of the driver was a wanton trespass, not done in the course of his employment, nor under the express or implied authority of the defendants; they are therefore not responsible: Shearman and Redfield on Negligence, §§ 55, 59, 62; Poulton v. London and S. W. Railway, 2 Queen's Bench 535; Little Miami Railroad v. Wetmore, 9 Am. Law Reg. 621; Fox v. N. Liberties, 3 W. & S. 103; Croft v. Allison, 4 B. & Ald. 590; Phila. G. and N. Railroad v. Wilt, 4 Whart. 143; Yerger v. Warren, 7 Casey 319; Morley v. Gaisford, 2 H. Black. 442.

A. G. Cochran and R. J. Powers, for defendant in error.— The master is liable for the tortious acts of his servant when done in the course of his employment: Penna. Railroad v. Vandiver, 6 Wright 365; Goddard v. Gr. Trunk Railway, 10 Am. Law Reg. N. S. 17; Moore v. Railroad, 4 Gray 465; Railroad v. Finnay, 10 Wis. 385; Weed v. Railroad, 17 N. Y. 362; Flint v. Transportation Co., 34 Conn. 554; Landreaux v. Bell, 5 Louisiana, O. S. 275; Railroad v. Blocher, 27 Md. 277; Railroad v. Derby, 14 How. 468; Seymour v. Greenwood, 30 Law J. Rep. Exch. 189, 327.

The judgment below was affirmed November 13th 1871. PER CURIAM.

We agree with the counsel for the plaintiff in error, that for a wilful and wanton trespass committed by a car-driver the company is not responsible; but here, in addition to the trespass, the driver inflicted the principal injury by negligently and recklessly driving the car over the limb of the plaintiff's son, thus injuring him. For this the company was clearly answerable. We perceive no error in the record, and the judgment is affirmed.

On the 15th of January 1870, Michael Donahue (the boy men-mentioned in the foregoing case), by his next friend, Patrick Donahue, brought an action on the case against the same defendants for the same injury, and the case was tried, September 28th 1871, before Kirkpatrick, J., on the same evidence.

The defendants' points and their answers were: —

1. The defendants are not liable for the wilful and unauthorized trespass of a driver or conductor of their cars.

Answer: "Refused as presented. These defendants are responsible for the results of their driver's conduct, if this conduct was exercised within the scope of his authority, and within the course of his ordinary employment as such. If therefore you find his conduct was so exercised by the driver, and in consequence thereof the boy fell under the wheels of defendants' car, they are responsible to this plaintiff for any and all injuries resulting to him therefrom. The amount is wholly for you, upon a careful consideration of all the testimony in the cause."

2. If the plaintiff was assaulted by the driver or conductor of defendants' car, and knocked off the car and injured in consequence thereof, the defendants are not liable for said alleged trespass, in the absence of express authority from defendants to the driver to commit such trespass.

3. Taking the testimony on the part of the plaintiff to be true, viz., that the driver of the car struck plaintiff with an iron bar or poker and knocked him off, and he fell under a wheel of the car and was thereby injured, the defendants are not liable for said trespass.

Both the 2d and 3d points were refused.

4. If the injury complained of was occasioned by the wilful act of the driver or conductor, and not shown to have been authorized or assented to by the officers of the corporation, defendants, the plaintiff cannot recover.

Answer: "Refused for reasons given in answer to defendants' 1st point, and for the further reason that to enable the plaintiff to recover, there is no necessity to show that the driver was authorized to do this particular act, or any other act of like kind or character. `The criterion is not whether the master has given the authority to do the particular act, but whether the servant was in the ordinary course of his employment.' This is the rule laid down by the Supreme Court of this state. It is a rule to us, and we submit it to you as binding in this case. We might go further possibly and, as a court, tell you whether this act did or did not come within such scope and compass as a driver and conductor, and we think in so doing we would only be doing what the Supreme Court said and did in the case we have just cited, but prefer leaving it as a matter of fact to be found by you, as any other fact in the case, instructing you further, that if you find that the act was done in the ordinary course and scope of his employment, as such driver and conductor, then the defendants are responsible to the plaintiff for the damages resulting from his being knocked off and being run over by the car-wheel."

The court further charged: —

* * * "That it was not necessary that authority should have been given to the driver and conductor to do this particular act, or any other like act; that the criterion was not whether they would have given the servant authority to do a particular act, but whether the servant in doing the act was in the ordinary course of his employment; that authority to do this particular act of the driver and conductor from defendants was not claimed nor was it proven; that it was clear no such authority ever was or would have been given; that this, however, was not necessary to the plaintiff's right to recover under the instruction and for the various reasons already given; * * * that the rule of damages was, if the jury find him entitled to recover at all under all the evidence in the case, they would be justified in giving him damages not only for such as he has already sustained, also such as he will reasonably sustain in the future, arising from the injury complained of, but also allow him for any pain and suffering he has sustained by reason of the injury."

The jury returned the following verdict: —

"We find a verdict for the plaintiff in amount as follows —

                "For pain suffered, seven hundred and fifty dollars   $750.00
                For compensation, four thousand four hundred and
                  sixty-six dollars and sixty-six cents   .    .     4,466.66
                                                                    _________
                                        Total verdict     .    .    $5,216.66"
                

The defendants removed the case to the Supreme Court, and assigned for error the answers to their points and the portions of the charge given above.

The writ of error was heard November 12th 1872, before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

It was argued by

...