Yazoo & M. V. R. Co. v. Cornelius

Citation131 Miss. 37,95 So. 90
Decision Date12 February 1923
Docket Number22924
PartiesYAZOO & M. V. R. CO. v. CORNELIUS
CourtUnited States State Supreme Court of Mississippi

1 RAILROADS. Question of injury by servant held for the jury.

In an action against a railroad company by a trespasser on one of its freight trains for an injury alleged to have been received by him at the hands of one of the company's brakemen on said train, one defense of the railroad company being that the evidence does not tend to show that the injury was received at the hands of the servant of the company, the evidence examined and found to be sufficient to go to the jury on that question.

2 RAILROADS. Railroad company liable for tort of servant knowingly or ignorantly exceeding authority.

A railroad company is liable for the tort of its servant committed within the general scope of the latter's employment, even though the servant in committing the tort exceed his authority; and it is immaterial whether he exceed his authority knowingly or ignorantly.

3 RAILROADS. Question of scope of employment of servant injuring trespasser on train held for jury.

One defense of the railroad company in said action being that the evidence does not tend to show that if the plaintiff was injured by a servant of the company such servant was acting within the scope of his employment, the evidence examined and found sufficient to go to the jury on that question

4 TRIAL. Jury entitled to have law of case set out in full in instructions.

In an action against railroad company for a personal injury, instructions, telling the jury that if they believe from the evidence the plaintiff "was injured in the manner and form charged in the declaration" they should find a verdict for the plaintiff, are erroneous, because the jury are entitled to have the law of the case as given by the court set out in full in the instructions, and should not be required to resort to the pleadings in the case to piece out the court's instructions; such requirement being confusing and misleading to the jury.

5. TRIAL. Contradictory and misleading instructions erroneous.

An instruction in such a case, telling the jury in one clause that it is not necessary for the evidence to show that the servant who injured plaintiff was authorized to protect defendant's train against trespassers, and in another clause that if the evidence shows that defendant's servant when he injured plaintiff was "engaged in his duties about the train" they should find for the plaintiff, is erroneous, because those, two clauses of the instruction arc contradictory and misleading to the jury.

6. RAILROADS. Instruction on scope of employment of servant injuring trespasser on train held erroneous.

In such a case an instruction, telling the jury, if the evidence shows that defendant's servant injured plaintiff while such servant was in the performance of "what he thought to be his duty," they should return a verdict for the plaintiff even though the evidence shows that such servant was acting beyond the scope of his duty and against the rules and regulations of the defendant, is erroneous, in that it authorizes a verdict against the defendant even though defendant's servant causing the injury was engaged about duties foreign to the furtherance of defendant's business for which such servant was employed.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Action by Frank Cornelius against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Chas. N. Burch, H. D. Minor and F. H. Montgomery, for appellant.

A directed verdict should, have been granted in favor of the defendant. At the conclusion of the evidence the defendant moved for a peremptory instruction; motion was overruled by the court. We submit that this action of the court was erroneous.

The plaintiff failed to identify either the conductor or the two brakemen. Notwithstanding the plaintiff was in court and saw the conductor and the two brakemen testifying, he did not identify any one of them as the man who did the shooting. Now, the burden was on the plaintiff to show by a preponderance of evidence that he was shot by a member of the train crew, on the other hand, he only showed that he was shot by a man in overalls and that he had seen this man at Lake Cormorant giving signs. These signs may have been intended for other trespassers on the train. Plaintiff absolutely failed to identify the conductor and the two brakemen who were in charge of the train. It necessarily results, therefore that the plaintiff has failed to prove his case and that A directed verdict should have been given in favor of the defendant.

A directed verdict should also have been given on the ground that even if plaintiff had been shot by a member of the train crew, such action on the part of the trainman was beyond the scope of his authority and not in furtherance of the master's business. American Railway Express Company v. Wright, 91 So. 344; I. & N. R. R. v. Corlander, 91 So. 699; Moore Stave Co. v. Wills, 111 Miss. 796, 72 So. 228; Canton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620; A. & V. Ry. Co. v. Harz, 88 Miss. 681, 42 So. 201; A. & V. Ry. Co. v. McAfee, 71 Miss. 70, 14 So. 260; Hines v. Cole, 123 Miss. 264; Ticherberger v. Express Co., 73 Miss. 169; Railroad v. McWilliams, 112 Miss. 244; Railway Co. v. McAfee, 71 Miss. 73; Railroad Company v. Latham, 72 Miss. 35; 5 Ruling Case Law, section 745; Louisville Gas Co. v. Kaufman, 105 Ky. 131, 48 S.W. 439; Thomp. Neg., p. 364; Hughes v. Railroad Co., 91 Ky. 526, 16 S.W. 275; Wintuska's Admr. v. Railroad Co. (Ky. ), 20 S.W. 819; Section 103 of Black's Law and Practice, in Accident Cases; United States v. Ross, 92 U.S. 281; Looney v. Metropolitan Rd. Co., 20 U.S. 480; Leonard v. Miami Min. Co., 148 F. 827; Leary v. Fitchburg Rd. Co., 173 Mass. 373, 43 N.E. 817.

The court erred in granting plaintiff's second, third, fourth, fifth and seventh instructions in that no one of said instructions was complete in and of itself, but referred the jury to the declaration filed in the case. The declaration and the instructions are conflicting. As already stated, the declaration alleges that a servant of the defendant "acting within the scope of his employment, wantonly, maliciously, wilfully and cruelly shot the plaintiff."

Instruction No. 4 (Rec. 92) for the plaintiff is: "The court instructs the jury that if they believe from the evidence, that an employee of the company, while in the discharge of his duty, or what he thought to be his duty, shot the plaintiff, while he was stealing a ride, as alleged in the declaration, then they must find for the plaintiff even though the jury may believe from the evidence that said employee of the company was acting beyond the scope of his duty and against the rules and regulations of the company."

We again submit, therefore, that the instructions of the plaintiff, referring to the declaration as a basis of liability, were not harmless errors, but most prejudicial.

Indeed, on referring to the instructions for the plaintiff it will be found that reference is made to the declaration for the purpose of piecing out the instructions in every instruction for the plaintiff with the exception of the instruction stating the form of verdict and the instruction advising the jury that nine jurors may return a verdict.

Instruction No. 2 for the plaintiff is erroneous in that it makes the defendant liable for any tort committed by a servant during the hours while he is on duty. Instruction No. 4 is erroneous in that the master is held liable for any tort of the servant if the servant did "what he thought to be his duty. We submit that no case can be found which will hold the master liable for a total unauthorized act of the servant merely because the servant "thought" the act to be his duty. This would leave the master exposed to every whim or caprice of the servant and would extend the doctrine of respondeat superior far beyond the principle of any adjudicated case.

Instruction No. 7 is erroneous in that the master is made liable for the act of any servant in shooting a trespasser off a train, even though such servant may not have been a member of the train crew and may have had nothing whatever to do with the operation of the train. The instructions granted plaintiff and defendant are hopelessly conflicting. L., N. O. & T. v. Phillips, 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; McNeil v. Bay Springs Bank, 110 Miss. 271; Solomon v. Compress Co., 69 Miss. 319; Hines v. McCullers, 121 Miss. 677.

On the whole case it is respectfully submitted that the case should be reversed and dismissed, or in any event, reversed and remanded for a new trial on correct instructions.

Maynord, Fitzgerald & Venable, for appellee.

The jury having found that the man who did the shooting was the brakeman of the company, the question then arises as to what are the scope of the duties of brakeman. It was testified to by the conductor and two brakemen, who were on the fateful train, that the brakeman had no right to eject a trespasser, except by order of the conductor, and that the conductor in this case had not given any such order.

Now, in the case at bar the question arises as to whether or not an employee or agent of the company, whose line of duty requires him to see that the train is free of trespassers, and even at the injunction of the conductor to eject trespassers, and whose instructions, of course, and employment, require that he not injure persons in ejecting them, nevertheless exceeds his instructions and authority and wilfully shoots a trespasser off the train in such an event, is...

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