Railway Co. v. Bolling

• Decision Date: 14 July 1894
• Citation: 27 S.W. 492,59 Ark. 395
• Parties: RAILWAY COMPANY v. BOLLING
• Court: Arkansas Supreme Court

27 S.W. 492

59 Ark. 395

RAILWAY COMPANY v. BOLLING

Supreme Court of Arkansas

July 14, 1894

Appeal from Drew Circuit Court, CARROLL D. WOOD, Judge.

Action by Bolling against the Houston, Central Arkansas & Northern Railway Company. The facts are stated by the court as follows:

The appellee, a boy about four years old, while riding on a hand car of appellant, had his hand crushed in the cogs by which it was operated, and for the injury recovered damages in this action in the sum of five thousand dollars, to reverse the judgment for which the appeal in this case was taken.

The facts in the case are substantially as follows: Parkdale is the center of a section of defendant's railway, in Ashley county, Arkansas. The section was about six miles long, and Parkdale was situated about the center. At Parkdale was located the railway company's section house, at which the laborers and foreman resided. On March 29, 1892, one Bolling was foreman of that section (No. 6), and had charge of all the work thereon. He lived at the section house at Parkdale with his wife and child, Falls Bolling, who was at that time about four years old, and who is the real plaintiff in this suit. On March 29, 1892, section foreman Bolling was very ill, and one Mike O'Connor, one of the regular section hands, was presumably acting as temporary foreman. The duties of these section hands were to keep the track of their section in repair, and do all things necessary to that end. Their working hours were from 7 o'clock a. m. to 6 o'clock p. m. each day, and, except in an emergency, the foreman and laborers were not required to be on the track outside of these hours.

In order to enable this section crew to do its work, all the tools necessary were furnished them by the railway company and among these tools was a hand car. This hand car was furnished them for the express purpose of transporting the section laborers, with the tools, implements and materials to and from the several places on the line of road within the section, wherever needed, and for no other purpose. Indeed the rules and regulations of the defendant railway company forbade the section foreman, or any one of the section men allowing any one to ride on the hand car except the laborers on the section. They were forbidden to use the hand car except in their work, and the proof shows that the hand car was never intended, nor was it ever used, for the transportation of passengers. On the contrary, the use of the hand car was for this purpose positively and affirmatively prohibited. The section foreman and his men had absolutely nothing to do with the transportation of passengers. On the contrary, they were forbidden to do such work, or to carry passengers on the hand car, or in any manner. The proof was clear and undisputed that section foreman Bolling had knowledge of these rules, and that he had repeatedly imparted his knowledge to O'Connor and his crew.

On March 29, 1892, the section hands came in early from work, between 5 and 6 o'clock, at the express orders of Bolling, for the purpose of taking two ladies on the hand car up to Mr. Kinnebrew's residence, which was about a quarter of a mile beyond the end of the section, and off of section 6. Kinnebrew was very ill. His wife desired Mrs. Meyer to come and sit up with her. Mrs. Meyer had asked Mrs. Maxwell to go with her, and Mrs. Maxwell had consented. So, in order to get to Kinnebrew's, these ladies asked either Mr. Bolling, or his wife, or both, to let the section men carry them up to that point on the hand car. Mr. Bolling consented, and ordered the men to come in early from work, and carry the ladies to Kinnebrew's. One of the section men testified: "We were employed on that section No. 6, and it was the duty of the hands on that section to see every part of the road on that section every day. When we got ready to start over the north end of the section, on said March 29, 1892, Falls Bolling, a child about 4 years old, began to cry and wanted to go with us."

At 5:20 p. m. the section men quit work, and came in to the section house. On their arrival, Mrs. Bolling, who knew the purpose for which they had come in so early, sent word to the ladies that the men had come, and would take them at once. In the mean time Falls Bolling, the child of Mrs. and Mr. Bolling, and plaintiff in this case, was standing near the hand car, crying to take a ride on it. Mike O'Connor, who, the testimony shows, was much attached to the child, and made a pet of it, asked its mother to let it go with them on the hand car, and Mrs. Bolling consented, saying, "Take good care of my boy, and bring him back safe." To this O'Connor replied, apparently in a joking manner, "Yes, we will bring him back safe, or we will bring him back a corpse." Upon this reply being made, Mrs. Bolling then told the men "to leave her boy alone, and not to take him." The men made no reply to this, but simply laughed. As to whether or not this conversation actually took place the proof was contradictory.

After this conversation, Mrs. Meyer and Mrs. Maxwell (or about that time) arrived, and got upon the hand car, the plaintiff being taken charge of by Mrs. Maxwell, who held him in her arms while riding on the hand car up to Mr. Kinnebrew's. After Mrs. Maxwell, Mrs. Meyer, the plaintiff, Falls Bolling, and the crew had got themselves upon the hand car, they then proceeded up the road, a distance of about three and one-half miles, to Kinnebrew's, and, on arriving there, the ladies got off the car, O'Connor going with them up to the house. After sitting for a while in social conversation with the ladies, O'Connor returned to the hand car, and started back to the section house. On its way back it overtook one Grant Johnson, a negro man, walking along the track. The hand crew, in the goodness of their hearts, stopped it and took Johnson aboard. Up to this time the child, Falls Bolling, had been riding on the front of the car, and was safe and sound. But shortly after Johnson had boarded the car the little fellow commenced to grow sleepy, and began to nod. O'Conner and the crew observed this, and fearing the child might fall off the front of the car, O'Connor moved him back from the front to the side, close to the standards, where the cog-wheels work. The car continued on its journey, but shortly thereafter the boy fell asleep, and in some unexplainable manner got his hand caught in the cog-wheel and crushed.

In the court below it was contended by appellant that Mike O'Connor and his section men were acting wholly and entirely without the scope of their employment when they undertook to carry these ladies, the plaintiff, or the colored man upon the hand car; that it was not a part of defendant's duty to carry passengers, either for hire or for pleasure, upon hand cars; that such means for the transportation of passengers was unknown to defendant's system of business; that it was contrary to the usual mode of doing busings upon this, as well as other, railroads; that the rules and regulations of the railway company forbade it; that no employee had authority, power or right to involve the defendant in such a manner. Defendant further contended, and evidence was introduced to show, that the printed rules and regulations of the defendant company positively forbade the section foreman, or any and all of his section hands, from using the hand cars in their possession for any other purpose than doing work upon the road.

Judgment reversed and cause dismissed.

Dodge & Johnson for appellant.

1. There was no liability whatever upon the part of the company. It was not the duty of defendant's employees to carry plaintiff upon the hand car; their acts in so doing were voluntary, outside the scope of their employment and authority, and against the rules of the company. The verdict is contrary to the law, and there is no evidence whatever to show liability by the company. 13 S.W. 983; 149 Mass. 205; 153 id. 191; 111 N.Y. 328; 125 Ill. 320; 56 N.W. 346 "The liability of the master does not reach wrongs caused by carelessness of servants in work not directed by the master, as business of a third party, or of the servant himself, or of the master which he did not expressly direct him to perform. The rule, briefly stated, is: The responsibility of the master grows out of, is measured by, and begins and ends with, his control of the servant." 63 Mich. 644. The above propositions are crystalized and laid down as a fixed rule by such authorities as: 1 Pars. Cont. 102; Cooley, Torts, 533; 1 Add. Torts, sec. 550, note 1; 2 Hill. Torts, 432; Story, Agency, sec. 452; Smith, Mas. & S. 322; 19 Wend. 343. See, also, 70 Me. 65; 51 Conn. 150; 82 Ill. 429; 49 Ark. 360; 43 Mo.App. 410; 125 Ill. 320; 98 Tex. 713; 77 id. 56; 42 La. 302; 45 Ark. 250; 47 id. 502; 49 id. 264. To render the master liable for the act of the servant, the servant must be at the time employed in the business of the master. If the servant be pursuing an independent purpose of his own, which is no part of the service due by him to the master, the master will not be liable for the servant's act, although he may be using instrumentalities belonging to the master, with or without the master's consent. The mere fact that the master may give permission to the servant to use the master's conveyance in the prosecution of some business of the servant will not render the master liable for the act of the servant in the course of such business. Whart. Neg. secs. 157, 162, 168; Whitt. Smith, Neg. p. 154 note, pp. 156, 162-3; 2 Thomps. Neg. p. 885; 3 Will. Civ. Cases, 177; 116 Mass. 265; 26 Pa.St. 482; 4 Daly, 338; 31 Minn. 351; 45 Conn. 44; 71 Me. 432; 4 Q. B. 476; 2 L. R. C. P. Div. 357. Though the servant be at the time in the general course of his employment, yet if...