Louisville, Evansville and St. Louis Railway Company v. McVay.

exercised the company must be held liable." Because the regulations are not open to the public it would be unreasonable to require positive proof of such authority.

The case of Terre Haute, etc., R. Co. v. Pierce, supra, was an action by a surgeon to recover for amputating the leg of an employee, injured while at work for the company. The facts of the employment and report to the general superintendent were almost identical with the case last above. It was held that the company was liable upon the ground of ratification. There was no proof of the duties or powers of the general superintendent. The court seems to have presumed from the title of his office, that he had authority to bind the company for such surgical services.

The case of Indianapolis, etc., R. Co. v. Morris, 67 Ill. 295, was similar except that the action was to recover for nursing and care, and the employment was by the conductor, who reported to the general officers. It was held that there was a ratification of the employment, and that the company was liable.

Under a similar state of facts, a like ruling was made in the case of Cairo & St. Louis R. Co. v. Mahoney, 82 Ill. 73. In the case of Pacific R. Co. v. Thomas, 19 Kans. 256, it was held that in the absence of evidence to the contrary it should be presumed that the general superintendent of a railway has authority to employ physicians and surgeons to attend an employee injured while working for the company, and hence power to ratify an employment by agents who had no such authority. This case went further than we need go here, and announced a proposition that we need not now approve or disapprove, viz., that the same presumption should be indulged as to a division superintendent, upon whose division the injury occurred. The company was held liable upon the ground that the employment was ratified by the superintendent. The evidence of ratification was much weaker than in the case before us.

The doctrine of the above cases is fully sustained by the case of Southgate v. Atlantic, etc., R. Co., 61 Mo. 89, and the case of American Ins. Co. v. Oakley, 9 Paige, 496; 38 Am. Dec. 561, therein cited. Upon the general doctrine of what the courts take notice without proof, see 1 Best Ev., § 253; Whart. Ev. 1, § 330 et seq., and cases cited.

Applying the doctrine of the above authorities to the case before us, it must be held that the general manager had authority to

Carter v. Louisville, New Albany and Chicago Railway Company.

make the contract with appellee, and hence authority to ratify the contract as made by the road-master; and that he did so ratify it and thus made the corporation liable. There is no evidence as to how Barnett was injured; but inasmuch as the general manager ratified contracts for taking care of him, and the company paid for such service (except the claim of appellee) it should be presumed there being no evidence to the contrary — that the injury was so inflicted as that the contract for his care was not ultra vires. See Board, etc., v. Slatter, 52 Ind. 171; City of Anderson v. O'Connor, 98 id. 168.

There is nothing in the evidence that would justify us in reversing the judgment because of an excessive recovery.

We have given to the questions involved in this case a thorough and extended examination, not on account of the amount involved, but on account of the importance of the questions. As we find no available error in the record, the judgment is affirmed with

costs.

Judgment affirmed.

Carter v. LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY

COMPANY.

(98 Ind. 552.)

Master and servant — servants ejecting trespasser from locomotive engine.

Where a trespasser upon a railway locomotive engine was thrown off by the servants of the railway company, while the engine was moving at a dangerous speed, and run over and injured, the company is liable therefor.

A

CTION for personal injuries. The opinion states the case. The defendant had judgment below.

B. F. Love, H. C. Morrison, T. B. Adams, L. T. Michener, G. S. Orth and J. Park, for appellant.

J. R. Croffroth, T. A. Stuart, S. P. Baird and W. F. Stillwell, for appellee.

Carter v. Louisville, New Albany and Chicago Railway Company.

MORRIS, C. This is a suit for damages commenced by the appellant against the appellee for a personal injury, alleged to have been caused by the wrong of the appellee. The complaint contains four paragraphs.

It is stated in the first paragraph of the complaint that on the 24th day of July, 1877, the appellee was running and operating a railroad located in Tippecanoe county; that it was running engines and cars on its said road, and that it was, at the same time, using and running an engine on a side track of said road, in and near the city of Lafayette, in said county, in and about the transaction of its business; that while engaged in running and operating said engine on said side track in and about its said business, and when said engine was not in motion, the appellant and others, with the knowledge of and without objection from the servants of the appellee having charge of said engine, got on to the same; that while the appellant was so on said engine, and seated in the front part of the same, under the head-light thereof, said servants of the appellee, having charge of said engine, put the same in motion on said side track, and while said engine was running at a rate of speed that made it unsafe for the appellant to get off of the same, one of said servants ordered him off, to which he replied that he would get off if they would stop the engine so that he could safely do so; that thereupon, without checking the speed of the engine, the said servant shoved him off of said engine on to said side-track and in front of the engine, in such position that his left leg came in contact with the rail of said track; that the wheels of said engine passed over the appellant's left leg, crushing the bones thereof so that it became and was necessary to amputate his said leg some four inches below the knee; that he suffered great pain and was put to great expense, etc.

The second paragraph of the complaint is like the first, except that the statement that the appellant got upon the engine with the knowledge and without objection from the appellee's servants having charge of said engine, is omitted. It states that one of the appellee's servants having charge of said engine seized the appellant and negligently threw him from said engine. In other respects they are the same.

The third paragraph is in substance the same as the first; it states that the appellant got on the engine with the knowledge and notice of the appellee; that the appellee, through its servants and while the engine was in motion, shoved the appellant off, etc.

Carter v. Louisville, New Albany and Chicago Railway Company.

The fourth paragraph is the same as the third except that it states that the appellee negligently and carelessly pushed the appellant from the engine.

The appellee demurred separately to each paragraph of the complaint, on the ground that neither states facts sufficient to constitute a cause of action. The court sustained the several demurrers, and the appellant electing to stand by his complaint, final judgment was rendered for the appellee.

The errors assigned bring in question the rulings of the court upon the demurrers to the complaint.

The appellee contends that each paragraph of the complaint is fatally defective, because neither shows it to have been in fault; that upon the facts stated it is not responsible for the acts of those who threw the appellant from the engine; that those who threw or pushed the appellant off the engine are not alleged or shown to have been acting within the scope of their employment.

It may be safely assumed, we think, that the appellee was upon the facts stated in each paragraph of the complaint wrongfully upon the appellee's engine. He must have known that the position which he had voluntarily taken and occupied upon the engine -in the front portion of it under the head-light-was a dangerous and improper one. He is not alleged to have been invited by the appellee or its servants to occupy this position of danger. The use of the engine, its construction and obvious design, unmistakably notified the appellant that it was not intended for the purpose for which he was improperly using it. He was voluntarily and wrongfully upon the engine and therefore took upon himself whatever risks and perils not occasioned by the wrongful acts of those in charge of the engine might attend the position which he had assumed. Nor does the fact that the appellant was thus upon the engine with the knowledge of and without objection from those in charge of it, excuse, much less justify, his conduct. The knowledge of the appellee's servants and their failure to object will under the circumstances stated in the complaint hardly warrant the inference that the appellee had authorized such servants to assent to and approve for it the conduct of the appellant. The engine itself, its uses and obvious design, were a warning and protest against the conduct of the appellant which he was not at liberty to ignore or disregard. He could not without negligence assume the position which he avers he did, so obviously dangerous, even

Carter v. Louisville, New Albany and Chicago Railway Company.

with the permission of those in charge of the engine. Robertson v. New York, etc., R. Co., 22 Barb. 91.

Though wrongfully upon the appellee's engine, the appellant did not thereby assume the risks to his person that might be caused by the wrongful acts of the appellee's servants, and if such acts were expressly or constructively authorized by the appellee, it must be held to be liable for their consequences. It is averred in each paragraph of the complaint, that one of the appellee's servants pushed the appellant from the engine while it was moving at a rate of speed which rendered it dangerous for him to get off of it; that he fell in front of it and on the rail of the track, and was injured by the wheels of the engine passing over his leg. Though wrongfully upon the engine, the appellant was not an outlaw, nor did he thereby assume the risks to his person caused by the alleged conduct of the servants of the appellee. He assumed the risks incident to his own wrong, but not those incident to or directly resulting from the wrongful act of the servant. To push or throw the appellant from his position on the engine, while it was running at a speed that made it dangerous for him to get off, was an act, not of omission, of mere negligence, in the sense in which the word is used in the case of Pennsylvania Co. v. Sinclair, 62 Ind. 301, and other cases referred to by the appellee, but of reckless aggression, evincing a wanton indifference to consequences and willingness to inflict injury.

The appellee contends that unless it is alleged or shown that the acts of its employees were willful or purposed, the complaint is bad, because there was negligence on the part of the appellant. Grant this, though we do not decide it, yet the complaint shows that those in charge of the engine were guilty of something more than mere negligence, as that word is used in the case of Pennsylvania Co. v. Sinclair, supra, relied upon by the appellee. There was, according to the averments, that "something more than mere negligence," which evinces willfulness, a purpose to injure. injury was the direct result of the aggressive act of the appellee's servant. The act of pushing the appellant off the engine was the proximate cause of the injury. The wrong of the appellant was not proximate to the injury so as to preclude his right to recover. True, if he had not been upon the engine, he would not have been thrown from it; but though wrongfully upon the engine, had he been let alone, or properly removed from it, he might not have

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