Snyder v. Han. & St. Jos. R.R. Co.

• Decision Date: 31 May 1875
• Citation: Snyder v. Han. & St. Jos. R.R. Co., 60 Mo. 413 (Mo. 1875)
• Parties: ELIZABETH SNYDER, Appellant, v. THE HAN. & ST. JOS. R. R. Co., Respondent.
• Court: Missouri Supreme Court

60 Mo. 413

ELIZABETH SNYDER, Appellant,

v.THE HAN. & ST. JOS. R. R. Co., Respondent.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

Hill & Carter, for Appellant.

I. The duty of the employees in charge of the train required that they should caution the boy to keep away and resist his getting upon the train. (Kline vs. Cen. Pac. R. R. Co., 37 Cal., 400; Lovett vs. Salem, etc., R. R. Co., 9 Allen, 557; Cook vs. Champlain, 1 Denio, 91; Davis vs. Mann, 10 Mes. & W., 545; Lynch vs. Nurdin, 1 Ad. & Ell., N. S. 29; Beers vs. Housatonic R. R., 19 Conn., 566; Robinson vs. Cone, 22 Vt., 213; Byrne vs. Goodman, 19 Conn., 507.)

II. A master is bound by the acts of his servant in the line and scope of his employment. (Ramsden vs. Boston & Albany R. R. Co., 104 Mass., 117, and cas. cit.; L. M. &. R. Co. vs. Wetmore, 19 Ohio St., 131.) And it is immaterial that said employees acted contrary to instructions. (9 Am. R., p. 11 and cas. cit.; Phil. & Read. R. R. Co. vs. Derby, 14 How., 468-483; Whart. Negl., § 171, and cas. cit.) III. The master is liable in a civil action. (Redding vs. S. C. R. R. Co., 3 S. Car. [U. S.] 1; Winterson vs. Eighth A. R. R. Co., 2 Hilt., 389.)

IV. The boy, in accepting the invitation of those in charge of the train to jump upon the car to ride with them, was not a trespasser. (Am. R., vol. 9, p. 11; cited 107 Mass., p. 108, and cas. cit.)

V. It makes no difference that he was a passenger without hire and may have been received or induced to get upon the train in violation of orders. Still the defendant would be liable. (107 Mass., 108, above cit.)

VI. Whenever servants deal with persons as passengers while acting within the line of their duty, as is charged in the petition, the master is responsible for their acts civilly, even if their acts be acts of positive malfeasance or misconduct. (Pass. R. R. vs. Young, 21 Ohio, 518; Am. R., vol. 8, cas. cit.)

M. Oliver, for Respondent.

I. It is not stated in the petition, whether the train was passenger or freight, or whether respondent's employees, induced or encouraged appellant's son to jump on said train, or what business was transacted by said train. These facts should be pleaded.

II. To make respondent liable, the petition should show that the act of employees, which caused or led to the injury, was lawful, but performed in a negligent or careless manner; and that the boy was injured in consequence. If the act itself was unlawful, it was as a legal proposition without the scope or range of the authority of the employees or servants and respondent is not liable for the consequences.

HOUGH, Judge, delivered the opinion of the court.

This was an action by the plaintiff to recover damages for the loss of the services of her infant son by reason of injuries alleged to have been inflicted upon him, in consequence of the negligence and carelessness of defendant's servants, and also for expenses incurred by her for medical attendance, and in nursing him during his resulting sickness.

The material portion of the petition is as follows: “The defendant was the owner of a certain railroad, running through the city of St. Joseph and across the streets and alleys thereof, and to the Missouri River Bank, and the engines and cars therein, and was, and for a long time previous to the time of the injuries hereinafter complained of, had been, engaged in the business of running said engines and cars, over and upon said railroad, alternately, from defendant's depot in said city of St. Joseph to said river and back again, making numerous trips each day with its said engines and cars, over its said road between said points, through a densely inhabited part of said city, in the line of its duty and business; and defendant, by its employees, was, and for a long time previous had been, accustomed to and did, while so acting within the line of their duty and business for the defendant, wilfully and unlawfully assume control over, and did carelessly and negligently induce, encourage and permit the son of plaintiff, one Henry Snyder, an infant about eleven years of age, and divers other children and boys, residing with their parents, in the vicinity of, and adjacent to defendant's said road, and in the absence of, and against the wish, entreaties and protestations of their said parents, and while their said cars were in motion, running as aforesaid, over said road, to frequently jump upon and ride upon defendant's said cars, between said points, and that said son of plaintiff, Henry Snyder, being so encouraged and permitted by said defendants said employees, was, in obedience to his childish instincts in the premises, attempting to so jump upon said cars, to-wit, on or about the 25th day of October, 1871, and while said cars were being so run by said employees in defendant's said business, through said city between said points, when said Henry Snyder was then and there thrown down, and under the wheels of said cars, and in consequence of defendant's said carelessness and negligence, his leg was then and there run over by said cars, and was thereby so crushed and mangled, that same had to be amputated; whereby, etc.,” and plaintiff claimed damages for the loss of services which would thereby be incurred by her during the whole period of her son's minority.

To this petition the defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The Circuit Court sustained the demurrer and rendered final judgment thereon, for the defendant, and plaintiff has appealed to this court.

The rule is firmly established that the master is civilly liable for the tortious acts of his servant, whether of omission or commission, and whether negligent, fraudulent or deceitful, when done in the course of his employment, even though the master did not authorize, or know of such acts, or may have disapproved or forbidden them. (Garretzen vs. Duenckel, 50 Mo., 107.)

The chief difficulty which has arisen in the application of this rule as appears from the adjudicated cases, has been in ascertaining whether the act complained of was committed in the course of the servant's employment.

Conceding for the present, that the petition in this case charges that the injury complained of was received by the plaintiff's son while attempting to get on the cars, in consequence of an invitation extended to him at the time by the servants of the defendant, in charge of said cars, can the defendant on such a state of facts, be held liable in this action? Can such injury be said to have happened, by reason of any act of defendant's servants, within the scope of their employment?

What was their employment? It is charged to have been the running of the engines and cars of the defendant between two points within the limits of the city of St. Joseph. It does not appear whether such cars were at the time being used in the transportation of passengers, or of freight only; or whether the defendant's servants were merely engaged in switching cars to be thereafter used for passengers or freight.

In the case of Wilton vs. Middlesex R. R. Co. (107 Mass., 108), it appeared that the plaintiff, a girl of nine years of age was walking with several other girls upon the Charlestown bridge about 7 o'clock in the evening, when one of the defendant's horse-cars came along very slowly, and the driver beckoned to the girls to get on. They thereupon got on the front platform, and the driver immediately struck his horses, when, by reason of their suddenly...