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

been hurt. The party who enters a street-car, without intending to pay his fare, is there wrongfully, and may be removed. But if negligently thrown from the car by the owner and injured, no one would doubt the latter's liability. See Whart. Neg., §§ 345 et seq., and notes; Shear. & Redf. Neg., § 264; Lawrenceburgh, etc., R. Co. v. Montgomery, 7 Ind. 474; Howe v. Newmarch, 12 Allen, 49; Philadelphia, etc., R. Co. v. Derby, 14 How. 468; Jeffersonville R. Co. v. Rogers, 38 Ind. 116; s. c., 10 Am. Rep. 103.

Assuming, as we have, that the person who threw the appellant from the engine was the servant of the appellee, and acting within the scope of his employment, we think the complaint is clearly good. We think it too clear to be seriously questioned that those in charge of and operating the engine of the appellee, in transacting its business, had not only the right to remove from it any person wrongfully upon it, but authority to do so from the appellec. Authority to take charge of and operate the engine would include authority to remove from it any thing or person whose presence upon it might in any way interfere with its use. Such authority is indispensably necessary to enable the servant to transact the business of the master. The question is not as to the manner of the removal, but whether those in charge of an engine may, by authority of the master, because they have control of it, remove from it persons who have wrongfully gotten upon it. Had those in charge of the engine stopped it, and without unnecessary force or violence removed the appellant from it, no one would doubt that they could justify the act as the servants of the appellee. Indianapolis, etc., R. Co. v. McClaren, 62 Ind. 566; Jeffersonville R. Co. v. Rogers, supra. In the latter case it is said: "If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is willful or merely negligent; *

or

even if it is contrary to an express order of the master." It can hardly be questioned, we think, that the removal of a person wrongfully upon an engine is within the scope of the employment of those to whom its care, management and control have been intrusted. Wood Mast. and Ser. 587, 655, 656; Evansville, etc., R. Co. v. Baum, 26 Ind. 70; Noblesville, etc., G. R. Co. v. Gause, 76 id. 142; s. c., 40 Am. Rep. 224.

In the case of Rounds v. Delaware, etc., R. Co., 64 N. Y. 129; s. c., 21 Am. Rep. 597, the facts were substantially as follows: The plaintiff jumped upon the platform of a baggage car on the defend

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

ant's road to ride to a place where the cars were being backed to make up a train. The defendant's rules forbade all persons, except certain employees, riding on baggage cars, and directed baggagemen to rigidly enforce the rule. The plaintiff's evidence tended to show that the baggageman ordered the plaintiff off while the car was in motion. A pile of wood was near the track. The plaintiff replied that he could not get off because of the wood, whereupon the baggageman kicked him off; he fell against the wood and under the cars and was injured. The court held that the baggageman was, while kicking the plaintiff off the platform, acting within the scope of his employment, and that the fact that the plaintiff was a trespasser was no defense. Hewett v. Swift, 3 Allen, 420; Pittsburg, etc., Ry. Co. v. Caldwell, 74 Penn. St. 421; Cooley Torts, 120; Shea v. Sixth Av. R. Co., 62 N. Y. 180; s. c., 20 Am. Rep. 480; Lovett v. Salem, etc., R. Co., 9 Allen, 557.

It is insisted that the several paragraphs of the complaint are bad, because it is only averred that one of several employees of the appellee, having charge of the engine, pushed the appellant from it, without specifying the duties and employment of this particular one of said employees. After stating the manner in which the appellant got upon the engine, it is averred, in the first paragraph, that the employees of the appellee having charge of the engine put it in motion, that one of said employees ordered the appellant off, etc.; "that said employee shoved him off," etc. If, as thus averred, one of several employees of the appellee, having charge of the engine, put him off of it in the manner stated, the appellee is responsible for his act. In this respect the other paragraphs are like the first, some of them more certain indeed, and the fourth alleges that the appellee threw the appellant from the engine. The complaint, and each paragraph of it, is as certain and specific in this respect as were the complaints in the case of Evansville, etc., R. Co. v. Baum, supra, and Pittsburgh, etc., R. Co. v. Theobald, 51 Ind. 246. If the complaint was not sufficiently specific, a motion to make it more specific would have been proper.

We conclude that the several paragraphs of the complaint are good, and that the demurrer to them should have been overruled. PER CURIAM. It is ordered, upon the foregoing opinion, that the judgment below be reversed, at the cost of the appellee, with instructions to overrule the demurrer to each paragraph of the complaint.

VOL. XLIX-99

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

ON PETITION FOR A REHEARING.

PER CURIAM. While a member of the Supreme Court Commission, Mr. Commissioner MORRIS wrote an opinion overruling the petition for a rehearing. That opinion has been held under advisement by the court. The petition for a rehearing is now overruled, and the opinion written by the commissioner is adopted as the opinion of the court. It is as follows:

A petition for a rehearing, accompanied by an earnest and able argument, has been filed in this case. The appellee complains that in the opinion no notice is taken of the fact, that in several of the paragraphs of the complaint, the engine which is alleged to have run upon and injured the appellant is described as a "switching engine." This is true, but as the engine is not described in any of the paragraphs as having been used in connection with a passenger train, it was thought unnecessary to notice such fact.

It is held in the main opinion that the servants of a railroad company, to whom the management and control of an engine have been intrusted, whether used for switching or other purposes, have, while using and controlling it, implied authority to remove from it any trespasser who may get upon it or attempt to occupy and control it. In thus holding, the appellee insists that the court erred. The appellee admits, as we understand its counsel, that those in charge of its passenger engines and trains have implied authority, as its servants, to remove and put off persons wrongfully upon such engines and trains; but it denies that its servants, to whom it has given the management and control of a "switching engine," have implied authority to remove from it persons wrongfully upon it while so being used by its servants in the transaction of its business. If such servants have no such implied authority, a rehearing should be granted; if they have such authority the petition should be overruled.

It is said by the appellee, that switching engines are used for local purposes-to place and replace cars, etc. and not for the purpose of receiving and discharging passengers; that therefore its employees have no implied anthority to remove from an engine committed to their care for such purposes, persons wrongfully upon it, whether their presence may or may not interfere with the use of the engine and the business to be transacted. Several cases are cited in support of this view. The first case to which the appellee

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

calls our attention is that of Towanda Coal Co. v. Heeman, 86 Penn. St. 418. In this case a minor had climbed upon one of the defendant's coal cars when in motion. A brakeman drove him off by throwing coal at him. He was hit in the face by a piece of coal which caused him to fall, whereby he was injured. It was held that the defendant was not liable. The proof showed clearly that the brakeman was not in charge of the coal train; that though a coal train (the appearance of which showed that it was not used for transporting passengers), its conductor, as its general manager, had authority to remove trespassers from it. This was conceded by the defendant's counsel, and the reasoning and whole drift of the case show that had the conductor violently removed the boy, a different result would have been reached.

The next case cited by the appellee is that of Marion v. Chicago, etc., R. Co., 59 Iowa, 428; s. c., 44 Am. Rep. 687, in which it was held that the defendant was not liable for the act of a brakeman in putting a trespasser off a freight train in motion, without direction from the conductor, who alone was authorized by the defendant to order such ejection. The court held the defendant not liable because the brakeman had no authority, express or implied, to remove trespassers from the train. But it further held that the conductor, by his general employment as the manager of the train, had such authority, and that had he ejected as did the brakeman, the plaintiff from the train, the defendant would have been liable. And we think it equally clear, that had a tramp got upon the engine, not as a passenger or for the purpose of stealing a ride, but from mere idle curiosity, the conductor or engineer would have had authority to remove him, not because he had charge of passengers, but because he had the general control of the engine and train. The removal of such a trespasser would have about the same relation to the business of transporting passengers that the removal had, in the case before us, to the business of changing the position of cars. If the servant in charge of the freight train would be acting within the scope of his authority in removing from his engine such a trespasser, would not the servant, in charge of a switching engine, also have the implied authority to remove such a trespasser from the engine in his charge? The relation of the servant and the trespasser to the business of the employer would be the same in both cases. The trespasser upon the engine would interfere no more with the transportation of freight or even passengers, than he would with the changing of cars.

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

The next case relied upon by the appellee, which we notice, is that of Wright v. Wilcox, 19 Wend. 343; 32 Am. Dec. 507. The defendant's servant was driving a wagon. A boy asked permission to ride. The servant said he might when he got to the top of a hill which he was then ascending. The boy got hold of the side of the wagon between. the front and hind wheels. The servant cracked his whip and the horses started into a trot, whereby the boy was thrown under the wheels and injured. The master and servant were sued jointly. It was held by the court that they were not jointly liable. It was also held that the act of the servant was clearly willful, and that therefore the master was not liable. The court, following the rule stated in McManus v. Crickett, 1 East, 106, says:

"If Stephen," the servant, "in whipping the horses, acted with the willful intention to throw the plaintiff's boy off, it was a plain trespass, and nothing but a trespass, for which the master of Stephen is no more liable than if his servant had committed any other assault and battery. All the cases agree that a master is not liable for the willful mischief of his servant, though he be at the time, in other respects, engaged in the service of the former." Again the court says: "The law holds such willful act a departure from the master's business." This statement of the law is not correct. If the act of the servant is within the scope of his employment, the master is liable, however willtul the act on the part of the servant may have been. In speaking of this and the class of cases to which it belongs, Thompson in his work on Negligence, 886-7, says: "If he," the servant, "makes use of his master's property in committing this wrong, he will be deemed, according to the fantastic reasoning of Lord KENYON" in McManus v. Crickett, supra, "to have acquired, for the time being, a special property therein. The fallacy of this reasoning was, that it made a certain mental condition of the servant the test by which to deter mine whether he was acting about his master's business or not. Moreover, with respect of all intentional acts done by a servant in the supposed furtherance of his master's business, it clothed the master with immunity if the act was right, because it was right; and if it was wrong, it clothed him with a like immunity because it was wrong." He further says: "A doctrine so fruitful of mischief could not long stand unshaken in an enlightened system of jurisprudence." See the cases cited on p. 887, repudiating the doctrine, which the author says is not the law.