Roberts v. Southern Ry Co

• Decision Date: 27 November 1906
• Citation: 143 N.C. 176,55 S.E. 509
• Parties: ROBERTS . v. SOUTHERN RY CO.
• Court: North Carolina Supreme Court

55 S.E. 509

143 N.C. 176

ROBERTS .

v.SOUTHERN RY CO.

Supreme Court of North Carolina.

Nov. 27, 1906.

Master and Servant — Injuries Inflicted by Yardmaster—Scope of Employment. Where a servant of a railroad made a mistake in switching a train, and thereafter, but within a short time, the yardmaster spoke to him about the mistake, and a quarrel ensued, in which the yardmaster struck the servant, the test of the railroad's liability for the assault was not whether the act was done by the yardmaster while ho was on duty or engaged in his duties, but whether it was done within the scope of his employment, and in the prosecution and performance of the business given him to do.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1217-122.->.i

Appeal from Superior Court, Mecklenburg County; Bryan, Judge.

Action by T. J. Roberts against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals Affirmed.

The evidence shows that plaintiff, an employe of the defendant, on its yard at Charlotte, was assaulted by one Bradley, the yardmaster, and plaintiff's superior. Plaintiff's account of the difficulty tended to show that plaintiff, having made some mistake in switching a train on to the wrong track, went into the office; and some time thereafter, and within a short time, Bradley, the yardmaster, came in and spoke to plaintiff about the mistake, and plaintiff called Bradley a "swell head, " and the assault was then committed. Bradley's account was that he spoke to plaintiff about the mistake when it was made; and then he (Bradley) went into the office. That later, plaintiff came in, and commenced to quarrel with witness, and the light followed. Bradley further testified that the assault was not at all serious, and both he and the plaintiff were off duty when it occurred. Plaintiff contended that though Bradley's successor may have been then on the yard and in charge, that Bradley had still continued to work, and was engaged in his duties at the time of the assault.

Plaintiff asked the court to charge that on the testimony, if believed, the jury should answer the first issue as to a wrougful assault "Yes." which was declined, and th6 plaintiff excepted. The plaintiff further asked the following special instructions: "That if the jury find from tlie evidence that Bradley, the servant of the defendant, while in the discharge of the work of the defendant company, assaulted the plaintiff, they will answer the first issue 'Yes.' Refused, except as given in the general charge, and plaintiff excepts. That if the jury find from the evidence that the plaintiff was assaulted by Bradley, the servant or employe of the defendant, while the plaintiff was on duty doing the work of the defendant company, and that such assault was made by the servant Bradley in consequence of a dispute which arose over the manner in which plaintiff's work was being done or had been done, the jury will answer the first issue 'Yes, ' although the jury may find that Bradley had been relieved for the time by the arrival of another yardmaster." Refused, except as given in the general charge, and plaintiff excepts. "That if the jury find that Mr. Blackwood had relieved Mr. Bradley from his duty as yardmaster before the difficulty commenced between the plaintiff and defendant's employe. Bradley, the defendant is nevertheless liable in damages for the assault of Bradley on the plaintiff, unless Bradley had actually quit his duties before he made the assault upon the plaintiff, about the defendant's business, and before he had actually gone off duty for the defendant, the jury will answer the first issue 'Yes.'" Refused, except as given in the general charge, and plaintiff excepts.

The court, among other things, charged the jury that where a servant does a wrong to a third person, the master must answer for the act if it was committed in the course and scope of the servant's employment, and in furtherance of the master's business. And, on the request of plaintiff, further charged that the defendant company is responsible in damages for the wrong done plaintiff by the employe of the defendant while such employs or servant was acting within the scope of his employment. And, in response to a prayer of the defendant, the court charged that if the jury find from the evidence that Bradley had been relieved from duty by the day yardmaster, Blackwood, before the fight occurred, the answer to the first issue should be "No." The plaintiff excepted to the refusal of the court to give his prayers for instructions and to the prayer given at the request of the defendant.

The jury answered the first issue as to wrongful assault "No." Judgment on the verdict for the defendant, and plaintiff excepted and appealed.

Morrison & Whittock, for appellant.

W. B....