Sullivan v. Louisville & N.R. Co.

• Citation: 115 Ky. 447,74 S.W. 171
• Parties: SULLIVAN v. LOUISVILLE & N. R. CO.
• Decision Date: 01 May 1903
• Court: Court of Appeals of Kentucky

74 S.W. 171

115 Ky. 447

SULLIVAN v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

May 1, 1903

Appeal from Circuit Court, Jefferson County, Common Pleas Division.

"To be officially reported."

Action by D. J. Sullivan against the Louisville & Nashville Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Matt O'Doherty, for appellant.

Helm Bruce & Helm and E. W. Hines, for appellee.

O'REAR J.

The foreman of a switching crew in appellee's yard, at Louisville, found a torpedo among some rubbish in a tool box on the switch engine. As a prank he placed it on the rail in front of one of the driving wheels of the locomotive, which passing over the torpedo, exploded it, a fragment striking appellant, a member of the crew, and injuring his leg. It is conceded that the switching crew had no occasion to use torpedoes in their work, and that the use of the one causing the injury named was entirely without the line of the foreman's duty. In this suit by the injured switchman to recover of the master (appellee) damages for the injury, the circuit court peremptorily instructed the jury to find for appellee.

The reason the master is liable for the act of his servant at all is because the servant is acting in that matter in the master's stead and for him. Obviously, if the servant is not acting for the master, he cannot be said to be his representative in that act. So, if the servant is charged by the master with the authority to act in his stead in a given matter, the servant's action, or his failure to act, as the case may be, is imputed to the master as if it were his own. This general doctrine must be too well known to require now the citation of authority to support it. But where the servant steps aside from his employment and assumes to act and does act, solely on his own account, in a matter which the master has no more connection with than if he were the most complete stranger, it would not be logical or fair to make the master vicariously suffer for it. For in doing that act the servant, so called, was absolutely his own master. Cousins v. Hannibal, etc., R. R. Co., 66 Mo. 572. Or, as it was expressed by Mitchell, J., in Morier v. St Paul, etc., R. R. Co., 31 Minn. 351, 17 N.W. 952, 47 Am.Rep. 793 (quoted with approval in Davis v. Houghtellin, 33 Neb. 582, 50 N.W. 765, 14 L.R.A. 737): "In determining whether a particular act is done in the course of the servant's employment, it is proper to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time the injury was inflicted, acting for himself and as his own master pro tempore, the master is not liable. If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended."

In Smith v. N. Y., etc., R. Co., 78 Hun, 524, 29 N.Y.S 540, the master was held not liable for the act of its station agent in placing a torpedo upon its railway track by the agent for his own amusement, and not for the purpose of signaling a train, whereby a third person was injured. Marion v. Chicago,...