Pittsburg v. Kirk

• Decision Date: 26 June 1885
• Citation: 102 Ind. 399,1 N.E. 849
• Court: Indiana Supreme Court
• Parties: Pittsburg, C. & St. L. Ry. Co. v. Kirk.

102 Ind. 399

1 N.E. 849

Pittsburg, C. & St. L. Ry. Co.

v.Kirk.¹

Supreme Court of Indiana.

Filed June 26, 1885.

Appeal from Marion superior court.

Baker, Hord & Hendricks, for appellant.

H. N. Spaan, for appellee.

Mitchell, C. J.

There is involved in this record but one single question, the solution of which depends upon the law applicable to the followingfacts: Eastward from the city of Indianapolis for some miles, the lines of the Pittsburg, Cincinnati & St. Louis and the Cincinnati, Hamilton & Indianapolis railways lie parallel, and a few feet distant from each other. On the twenty-fifth day of August, 1882, Dennis Cronin was a section foreman in the service of the former, and Richard Kirk was at the same time in like service for the latter. Each had control of a crew, a hand-car, and the requisite tools for repairing track. The daily routine of Cronin's duty was to meet his crew each morning at 7 o'clock, proceed on the car with men and tools along the line of his section, direct such repairs as were required, and return in like manner with car, tools, and men to the tool-house near the depot, arriving at 6 o'clock p. m. On the evening of the date mentioned, while thus returning from the east end of his section, Cronin encountered an engine and train of cars which obstructed his further progress on the line of his employer's road, and he thereupon directed the car to be transferred from the line of the Pittsburg, Cincinnati & St. Louis Company to that of the Cincinnati, Hamilton & Indianapolis, and while proceeding on the line of the latter his car was negligently propelled against the car on which Kirk was proceeding homeward with his crew. As a consequence, Kirk was, without fault on his part, thrown from his car and severely injured. It was shown that no authority whatever existed for the transfer of the car, nor was there any right in the one railway company to use the line of the other. It appeared that occasionally like use had been made of the line of the Cincinnati, Hamilton & Indianapolis Company by the trackmen of the Pittsburg, Cincinnati & St. Louis Company; but it does not appear that this was known to or authorized by the officer of either company, nor was the use so frequent as to raise an inference of knowledge.

Kirk brought suit against the Pittsburg, Cincinnati & St. Louis Company,and had a verdict and judgment, and the question is whether, upon the foregoing facts, the finding and judgment can be upheld. The argument is pressed with much force and ingenuity that because the duties of Cronin and his crew pertained wholly to the appellant's line, and as they had no authority, either express or implied, to go upon the track upon which the injury occurred, they were at the time neither within the line of duty or scope of their employment, and that, being thus outside of both, the employer is in consequence not liable for their misconduct. It is further contended that inasmuch as at the time of the injury Cronin and his men had quit work, and were proceeding homeward, the transfer of the hand-car for the purpose of avoiding the obstruction was a mere incident to the service in which they were engaged, resorted to for their own convenience, and for that reason the employer is exempt from liability for the resulting inquiry. The inquiry in hand embraces the following considerations: (1) Was the servant at the time engaged in prosecuting the business of the master, with authority, either express or implied, to accomplish in some manner an end then in view; and did the wrongful or injurious act have relation to the consummation of such end? (2) Was the manner chosen by the servant, resulting in the injury complained of, so far incident to the end in view as that it was reasonably, under the circumstances, designed for its attainment, or was it for some purpose merely personal to the servant, having no relation or fitness to the accomplishment of the business in which he was engaged? Whether a servant in a given case was acting within the scope of his employment, in pursuance of his line of duty, or on his own responsibility, in pursuit of his own pleasure or convenience, must usually depend upon the facts in such case. To undertake to lay down a general rule applicable to all cases would not only be difficult but impossible.

But we think this much may be said: Where a servant is engaged in accomplishing an end which is within the scope of his employment, and while so engaged adopts means, reasonably intended and directed to the end, which result in injury to another, the master is answerable for the consequences, regardless of the motives which induced the adoption of the means. And this, too, even though the means employed were outside of his authority, and against the express orders of the master. 2 Thomp. Neg. 889, § 6; Wood, Mast. & Serv. 593-596.

In the case of Philadelphia & R. R. Co. v. Derby, 14 How. 486, the question was said to be in all such cases, not whether the servant was obeying or disobeying the master's orders, but whether or not he was at the time acting in the course of his employment, or was in the relation of servant to the master. Where a servant steps aside from the master's business and does an act not connected with the business which is hurtful to another, manifestly the master is not liable for such act, for the reason that, having left his employer's business, the relation of master and servant did not exist as to the wrongful act; but if the servant, continuing about the business of the employer, adopts methods which he deems necessary, expedient, or convenient, and the methods adopted prove hurtful to others, the master is liable. The point is well illustrated by the case of Quinn v. Power, 87 N. Y. 535. In that case the pilot of a ferry-boat plying between the city of Hudson and the village of Athens, on the Hudson river, when about starting on a regular trip from one point to the other, invited a boatman on board, promising to put him on board his boat, which was lying mid-river, and out of the course which it was the pilot's duty to pursue in making his trip. In attempting to deliver the boatman on his boat the ferry-boat collided with a tow attached to a canal-boat, and the plaintiff's intestate was thrown from the canal-boat into the river and drowned. The case was decided upon the basis that the deviation from the usual and selected route was without the master's authority, and that but for that fact the injury would not have occurred. Finch, J., in the course of a learned opinion, said: “In deviating from a prescribed route the servants might disregard the instructions of the master, but they were none the less engaged in the master's business of transporting passengers from Athens to Hudson, because they did not follow the usual route, or pursued another or even a forbidden track. They were still doing their employer's work, though in a manner contrary to his instructions. If they stopped the boat in the middle of the river they did not cease to be engaged in the master's business. Even if the motive was some purpose of their own, they were still about their usual employment, although pursuing it in a way and manner to subserve also such purpose. * * * They were doing it in a mode and manner perhaps not authorized, and possibly, in some sense, to effect a purpose of their own, but none the less acting within the scope of their employment, and engaged in the master's business.” Joel v. Morison, 6 Car. & P. 501, and Sleath v. Wilson, 9 Car. & P. 607, were cited in that case. In the first it was held that if a servant, while driving his master's cart on his master's business, make a detour from his usual route, for his own purpose, his master will be liable for damages resulting from the careless driving of the servant while out of his road. The principle decided in the other case was substantially the same. It has been held by this and other courts that trackmen and laborers going to and returning from work on a railroad, are, during such time, servants of the company, and so far in the line of service that for an injury received while going or coming, through the negligence of a fellow-servant, the company is not liable. Gormly v. Ohio & M. Ry. Co. 72 Ind. 31;Wilson v. Madison, etc., R. Co. 18 Ind. 226.

It was part of the section foreman's duty to return with his car, tools, and crew over the appellant's track to the tool-house near the depot, as well to observe the condition of the track as to have his car and tools there ready for use at 7 o'clock the next morning. The prescribed route was over the track of the railroad in whose service he was. He had no authority to go upon the other, but, encountering an obstacle on the line of his employer, either for his own convenience or, possibly, to accommodate the other servants of the master, and thus make them better disposed towards it and its service, he judged it convenient or expedient to invade the neighboring line, rather than wait until the appellant's was cleared, and by that means he attained the end of delivering the car, tools, and crew at their destination. In all this, whatever his motive was, he was pursuing the master's service,-that of returning the car, tools, and crew to their appointed place, as was his...