Pennsylvania Company v. Toomey

• Decision Date: 05 November 1879
• Citation: 91 Pa. 256
• Court: Pennsylvania Supreme Court
• Parties: Pennsylvania Company <I>versus</I> Toomey.

91 Pa. 256

Pennsylvania Company versus Toomey.

Supreme Court of Pennsylvania.

October 10, 1879.

November 5, 1879.

October 10th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 116.

Hampton & Dalzell, for plaintiff in error.—The company was not responsible for the act of the conductor if it was malicious: Manchester Passenger Railway Co. v. Donahue, 20 P. F. Smith 19.

A. M. Watson, for defendant in error.

Mr. Justice MERCUR delivered the opinion of the court, November 5th 1879.

This was an action on the case against the plaintiff in error, and Householder, the conductor of the train, for forcibly ejecting the defendant in error from the platform of a passenger car of the company. After the latter closed his evidence, the counsel for the defendants below moved for judgment of nonsuit. The court granted the nonsuit as to Householder, but refused it as to the railroad company.

We see no error in the first assignment. Under the conflicting evidence it was right to submit the case to the jury under proper instructions.

The alleged error arises under the second assignment in answer to the fifth point submitted by the defendant in error. The court was requested, inter alia, to charge the jury that if Toomey was ejected at the time and place in question by Householder, the conductor of the train, carelessly, wilfully or maliciously, using more force than was required, and while the train was in motion, and not at a station or some safe place, "whereby he received bodily harm and permanent injury, they might award such damages as under the evidence they found he had sustained." In answer to this point the learned judge said, "we think the term `malicious' undesirable in this point, because it might very well be that if Householder was guilty of malice in putting the plaintiff off, it would make it such a wilful thing on his part that the principal would not be responsible for it at all. That is, if it was his design to injure the plaintiff, and he does the act with that design, maliciously, then under certain circumstances, his employer would not be liable for his act at all. I do not think that is this case, however. The defendant company is liable for the conductor's carelessness and neglect of duty in the course of his employment, and only that. If he chooses to go outside of his employment and commit a wilful, deliberate and intended injury to this plaintiff without any regard to what he was engaged at, the employer would not be liable. So I do not think the word `malicious' is desirable in the point, because it goes beyond what the facts in the case would warrant, and in a certain sense would prevent the plaintiff from recovering from the railroad company. If there was anything in the case presented by the plaintiff to show malice, then it would be a question for you to consider whether it was the wilful and intended design of this man to injure the plaintiff, apart from the necessity of getting him off the train. If he did this wilfully, and designedly hurt the plaintiff, the plaintiff could not recover from the company, because the company is not responsible for anything more than the neglect of duty of the conductor in the course of his employment. If he chooses to go outside of his employment, then he is not the agent of the company at all, and the principal cannot be held responsible." Justice to the court required that we should state this whole answer.

The plaintiff in error does not complain of the judge's declaration of the law, for what acts of the conductor the company would be liable, and for what it would not be liable. The complaint is that he did not submit to the jury to find whether, under the law as he declared it, the act of the conductor was of such a...