St. Louis Southwestern Ry. Co. v. Harvey

• Citation: 144 F. 806
• Decision Date: 19 March 1906
• Docket Number: 2,285.
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. HARVEY.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

144 F. 806

ST. LOUIS SOUTHWESTERN RY. CO. v. HARVEY.

No. 2,285.

United States Court of Appeals, Eighth Circuit.

March 19, 1906

(Syllabus by the Court.)

Two indispensable conditions of the liability of a master for the negligent acts of a servant are that they shall be within the scope of the latter's employment and that they shall be done in conducting the business of the master. If a servant step aside from the business of his master for never so short a time to do an act that is not a part of that business, the relation of master and servant is for the time suspended, and the acts of the servant during this interval are not the master's but his own.

The use by a servant, in the commission of a tortious act and while pursuing his own affairs, of cars, engines, or facilities of the master, without the latter's consent, but which the servant could not have procured in the absence of the relation of master and servant, is insufficient to charge the master with liability for the acts of the servant.

A straw boss and some members of a gang of laborers, which was engaged in surfacing and repairing track, took a hand car and drove it to town about three miles south of their place of work and camp at about four in the afternoon. About eight in the evening some members of another gang, which was engaged in relaying the track near the place of work of the former gang, were taking some sick workmen to the town under a hand car, when they collided with the first car which was returning without any light upon it. The rules and practice of the company prohibited the allowance of a hand car upon the track, without the permission of a foreman, but the men sometimes used them without his knowledge. The working hours of the men ceased at six in the afternoon. The foreman of the men on the dark car testified that they were not engaged in the business of the master, and that the hand car was not on the track with his knowledge or consent after six in the evening. Held, the acts of the men on the dark car after their hours of work had ceased were not within the scope of their employment, nor in the business of the company, and the latter was not liable for them.

W. T Woolridge (S. H. West and F. G. Bridges, on the brief), for plaintiff in error.

Trimble Robinson & Trimble, and J. H. Harrod, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

On March 3, 1903, two gangs of laborers were at work for the St Louis Southwestern Railway Company, the defendant below, at a point about three miles north of Jonesboro in the state of Arkansas. The plaintiff below, Sam J. Harvey, was a member of a gang which was engaged in taking up old rails and laying new ones and the foreman of his gang was one Redding. The other gang was engaged in surfacing and repairing the roadbed about a quarter of a mile north of Redding's gang, and W. J. Bridges was its foreman. The hours of work for the men in these gangs were from 7 in the morning until 6 in the evening. It was contrary to the rules and practice of the company to permit a hand car upon the railroad track without the permission of a foreman. About four in the afternoon a hand car operated by a straw boss or assistant foreman and some members of Bridges' gang passed south towards Jonesboro. After the men in Redding's gang had completed their work for the day, and about 8 in the evening their foreman sent the plaintiff and four or five other laborers in charge of an assistant foreman upon a hand car to Jonesboro to carry some sick workmen. The plaintiff was in charge of a red light and a white light upon the front of the hand car. He placed the red light on the car, sat down by the side of it, hung his feet over the front end of the car and held the white light upon one of his legs. The evening was dark and at a point about two miles north of Jonesboro they collided with the hand car in possession of the members of Bridges' gang which was coming north without any light upon it and the plaintiff's legs were caught between the cars and seriously injured. He brought this action against the company to recover damages upon the ground that he was injured by the negligence of those members of Bridges' gang who were operating the dark car. At the close of the evidence counsel for the defendant requested the court to instruct the jury to return a verdict in its favor. This request was refused, and this refusal is assigned as error.

Conceding without considering or deciding the question, that the men upon the dark car belonged to the classes of servants for whose acts of negligence the master is liable under the statutes of Arkansas, the burden of proof was upon the plaintiff to establish the fact that at the time and place of the collision these men were running the car in their possession in the discharge of a duty of their employment as servants of the corporation. The first question for consideration in the case, therefore is, was there any substantial evidence at the trial sufficient to sustain a finding of the jury that this fact existed? It is not enough that there was evidence that these men were engaged in the business of the corporation during their working hours or at other times or places, but it was necessary to produce evidence that they were thus employed at the time and place of the collision. The finding of this fact...