O'Banion v. Missouri Pacific Railway Co.

The opinion of the court was delivered by Smith, J. :

Counsel for the railway company contend, first, that there was no evidence proving or tending to prove that the person who, it is claimed, *356 pushed the plaintiff below from the car was in the employ of the railway company in the capacity of a brakeman or otherwise. Many decisions .are cited confirming the general rule that the declarations of a person are not competent to prove his authority to act as agent for another. It will be noted, however, that counsel for defendant below, upon cross-examination of the. plaintiff, interrogated him as follows :

“Ques. He said he was the head brakeman of that train? Ans. Yes, sir.

“Q. You supposed he had authority to run it, did n’t you? A. Yes, sir.”

These responses, now claimed to be incompetent, would not have been extracted from the witness except for their supposed benefit to the railway’s side of the case. Having sought to profit by the use of such testimony in its behalf, it cannot now be permitted to complain that the adventure was disastrous. It cannot avail a party bringing such testimony before the jury to invoke authority in denial of its competency. This testimony, coupled with the fact that the person who stated the capacity in which he was employed had a brakeman’s stick in his hand, and was engaged, when plaintiff approached him, in letting off a brake on the car, was prima facie evidence that he was a brakeman in the employ of the railway company.

The second contention of defendant in error is that, “assuming that the person who pushed plaintiff, if he was pushed, was a brakeman in the service of the railway company, then his act complained of was not in the discharge of any duty he owed the company.” The argument is that, in pushing the plaintiff from the car, the brakeman was acting on his own account, piqued by the refusal of O’Banion to pay him the *357 amount demanded for passage on the train. It cannot be said that a brakeman situated as this one was, in charge of the front end of the train, did not have general authority to remove trespassers therefrom. [K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655 , 14 Pac. 172 , 59 Am. Rep. 596 .)

In U. P. Ply. Co. v. Mitchell, 56 Kan. 324, 327 , 43 Pac. 244 , the authority of . a brakeman to eject trespassers was recognized by the approval of an instruction given to that effect. In Elliott on Railroads, volume 3, page 1962, the author notes the rule prevailing in this state, as announced in the case of K. C. Ft. S. & G. Rld. Co. v. Kelly, supra, that the ejection of trespassers is within the scope of the implied authority of a brakeman. If it were clear that in pushing O’Banion from the car the brakeman did so for the purpose of extorting money from him, or inflicted punishment on him in that way for not paying the sum demanded, then we might say that the brakeman was not, when so doing, engaged in the performance of any duty imposed on him by reason of, his employment as agent of the railway company. The brakeman owed a duty to his employer (the railway company) to remove trespassers from the cars which made up the train, and if, in the discharge of such duty, he recklessly or in a wilful, wanton or malicious manner performed it, and ejected a trespasser in a way to cause bodily injury, the railway company was liable for his acts. (U. P. Rly. Co. v. Mitchell, supra.)

Different minds might arrive at different conclusions, after considering the testimony introduced on behalf of plaintiff below, concerning the reasons -which impelled the brakeman to act as he did. "We are asked to determine that the motivé which actuated him in ejecting the plaintiff was a desire.for personal *358 gain to himself, and that he was not influenced by any obligation of duty which he owed the railway company to keep trespassers from riding on the train. To arrive at the impelling motive in the case was a matter peculiarly within the province of the jury. After a demand for money made by the brakeman, and up to the time of plaintiff’s forcible ejection from the car, though the intervening time w$s short, there was a locus pcenitentix during which the servant’s continuing duty to his employer might have asserted itself and overcome his desire for personal gain, causing him to act solely in the interests of the company and not for his own benefit.

We cannot conclude, considering all the testimony given by the plaintiff below, that his injuries were the result of a wilful attack made on him by a person acting independently of and outside of the range Of his employment, when the servant who caused his injuries was, immediately before and directly after the plaintiff was hurt, satisfactorily proved to have been in the service of the company. The intent and purpose with which acts are done can be better ascertained by a jury composed of persons drawn from different vocations in life than by a body of professional men all engaged in one calling. Mr. Thompson, in his Commentaries on the Law of Negligence, says:

“It is obviously a question of fact for the determination of a jury whether, at the time of the particular act or omission by the servant, which caused the injury, the plaintiff’s servant was acting within the scope of his employment, or acting outside of it to effect some purpose of his own. (Yol. I, § 615.)

“Whether the person whose immediate negligence or misconduct caused the particular injury was acting at the time as the servant of the person sought to be *359 charged frequently depends on such a variety of facts that it falls outside of any definite rule, and for that reason becomes, under proper instructions, a question of fact for the jury.” (Id. §616.)

The judgment of the court below will be reversed and a new trial ordered.

Doster, C.J., Pollock, J., concurring.'