Towanda Coal Co. v. Heeman

• Decision Date: 06 May 1878
• Citation: 86 Pa. 418
• Parties: Towanda Coal Company <I>versus</I> Heeman.
• Court: Pennsylvania Supreme Court

Page 418

86 Pa. 418

Towanda Coal Company versus Heeman.

Supreme Court of Pennsylvania.

March 13, 1878.

May 6, 1878.

March 13th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Plea: of Bradford county: Of January Term 1878, No. 42.

Elhanan Smith, for plaintiffs in error.—The act of the brakeman in throwing the coal could create no liability on the part of the company, and yet the court permitted the jury to find the fact that this act was within the scope of his employment when there was no evidence on which to base such a finding. He had no control over the management of the train, and had no right to admit or exclude passengers, and the court should have so instructed the jury. The lad was unlawfully on the train, and the company is not liable: P. & R. Railroad Co. v. Hummell, 8 Wright 378; Railroad Co. v. Norton, 12 Harris 465; Flower v. Penna. Railroad Co., 19 P. F. Smith 210. The master is not responsible for the wilful tort of his servant: 2 Hilliard on Torts 323, 422; Snodgrass v. Bradley, 2 Grant 43; Phila., Germantown and Norristown Railroad Co. v. Wilt, 4 Whart. 147; Isaacs v. Third Ave. Railroad Co., 47 N. Y. R. 122.

H. W. Patrick, for defendant in error.—The question is not whether the brakeman had authority to do the particular act, but was he in his ordinary employment at the time the act was done, and after evidence of a particular employment what is within its scope is a question of fact to be left to the jury: Lackawanna Railroad Co. v. Chenewith, 2 P. F. Smith 382; Passenger Railroad Co. v. Donahue, 20 Id. 121; Higgins v. Waltervliet Turnpike Co., 46 N. Y. 323; Sanford v. Railroad Co., 23 Id. 343; Jackson v. Second Avenue Railroad Co., 47 Id. 274.

Mr. Justice WOODWARD delivered the opinion of the court, May 6th 1878.

Although the point was not directly made to the court that there was no evidence tending to prove that it was within the line of a brakeman's duty to remove trespassers or other persons from the cars of the defendants, yet under the particular circumstances disclosed by this record, the question was sufficiently raised by the second and third points, which should have been affirmed. In substance they were prayers for instructions to the jury that it was no part of a brakeman's duty to throw coal at any person on the train to which he was attached, or to admit persons to, or remove them from the train. A careful examination of all the testimony has shown that not a word contained in it tended to prove that the brakeman whose conduct is complained of, in the cruel and wanton assault he made on the plaintiff, was acting in pursuance of any authority conferred on him. The only affirmative proof was precisely in the opposite direction. J. B. Judd, the assistant superintendent of the defendants, said: "The duty of the conductor is to take charge of the running of the trains, and he may admit or exclude passengers therefrom; the brakemen have nothing to do with passengers; they do the general business of the train as far as labor is concerned — putting on brakes, and the general work of handling a train of cars." The plaintiff at the time of the accident was a boy seven or eight years old. While a train on the Barclay railroad was stopping at the station in Towanda, he, with one or two other boys, climbed upon the cars. After the train started, one of the brakemen drove him off by throwing pieces of coal at him, some of which struck him in the face, partially blinding him. In attempting to get off he slipped, because, as he said in his testimony, he "could not see but a little," and...