Sharp v. Erie R. Co.

• Decision Date: 13 February 1906
• Citation: 184 N.Y. 100,76 N.E. 923
• Parties: SHARP v. ERIE R. CO.
• Court: New York Court of Appeals Court of Appeals

184 N.Y. 100

76 N.E. 923

SHARP

v.ERIE R. CO.

Court of Appeals of New York.

Feb. 13, 1906.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Charles F. Sharp, administrator of George Sharp, against the Erie Railroad Company. From a judgment of the Appellate Division (85 N. Y. Supp. 553,90 App. Div. 502), affirming a judgment for defendant, plaintiff appeals. Reversed.

Gray. J., dissenting.

David C. Robinson and Frank C. Ogden, for appellant.

Frederick Collin, for respondent.

O'BRIEN, J.

The plaintiff's intestate, a boy of about 17 years of age, was shot and killed on the 16th of May, 1901, by a man named Wheeler, at Salamanca. The boy, with one or two companions, got upon one of defendant's freight cars at Elmira for the purpose of stealing a ride. They were running away from their homes, and their destination was Youngstown, Ohio. When the train arrived at Salamanca, some 60 miles west, it appears that three men shouted to them that there were detectives in the yard, and they proceeded to get off as quickly as possible. They jumped from the moving train and were pursued by Wheeler along the railroad track for some distance to the west when the boy turned at right angles and passed to the adjacent land through an open gate. The pursuit was continued by Wheeler for about 50 feet on the adjoining land, and when the boy, being ahead of him, was about 100 feet from the railroad premises, Wheeler drew a pistol and fired at him; the ball entering the back of his head, producing death.

The question in this case is whether the defendant can be held responsible for the act of Wheeler in killing the boy. It is claimed that Wheeler acted in a dual capacity; that, while he was the servant of the defendant for certain purposes, he was also a public officer, and that he killed the boy while acting in the capacity of such officer, and not as the servant of the defendant. It is important to know at this stage of the discussion just what Wheeler's relations to the defendant were. There does not seem to be any dispute in regard to the scope of his employment. He was paid $50 a month by the defendant, and his duties were to protect the company's interests on the right of way; to keep tramps from trains and look after robberies that might occur at stations and on freight cars in the yards and on the tracks and in the station, and look after persons in an intoxicated condition on the company's property, and generally to look after crimes committed against the railroad company on the right of way. It was part of his duty to drive off and keep off trespassers from the company's property. His duty was not limited to keeping trespassers off the trains where it was to the company's interest to keep them out of the yard. That was largely committed to his discretion. It will be observed that there is no conflict in the testimony nor any dispute about the facts, and it is argued by the learned counsel for the defendant that in such cases the question becomes one of law for the court, and there is nothing for the jury to pass upon. That was the view taken by the learned courts below. The plaintiff was nonsuited, and the Appellate Division affirmed the judgment. It is argued that the moment Wheeler passed beyond the boundaries of the defendant's premises onto the adjoining lot where the deceased was killed he was no longer acting as the defendant's servant, but was pursuing and seeking to arrest the boy who had committed or was engaged in the commission of a crime. It will be noted that the pursuit commenced when the deceased jumped from the car and was continuous until the shooting occurred. So the question is whether, at the time that Wheeler fired the fatal shot, he was acting as the defendant's servant or as a public officer; and, further, whether that question was one of law for the court, or of fact for the jury.

In actions for personal injuries arising from negligence, and in other actions sounding in tort, it is far from correct to assert that when the facts are undisputed the question becomes one of law. Whether the undisputed facts impute negligence is for the jury, when the circumstances are such that men of ordinary prudence and discretion might differ as to the character of the acts under the circumstances of the case, or whether the inferences to be drawn from or the significance to be attached to the testimony are doubtful. 1 Thomas on Negligence, p. 673. A recent author who has written much on the law of negligence states the rule in these words: ‘It is obviously a question of fact for the determination of a jury whether, at the time of the particular act or omission by the servant which caused the injury, the plaintiff's servant was acting within the scope of his employment or acting outside of it to effect some purpose of his own. Upon such a question the verdict of a jury will be conclusive. * * * Whether the person whose immediate negligence or misconduct caused the particular injury was acting at the time as the servant of the person sought to be charged frequently depends on such a variety of facts that it falls outside of any definite rule, and...