#### Euting, by Guardian *ad*litem, Appellant, vs. Chicago & Northwestern Railway Company, Respondent.

*November 12*

November *28, 1902.*

*Railroads: Exploding torpedo on trdclo: Injury to bystander: Liability: Scope of engineer’s employment: Court and jury.*

1. Upon the evidence in this case it is *held*to have been a question-. for the jury whether a torpedo placed upon the tract in front of an engine was put there by the fireman without the knowledge-of the engineer, or by the engineer himself.

2. Railroad torpedoes should, as matter of law, be considered as-dangerous agencies.

3. An engineer in whose custody a railway' company has placed' torpedoes to be used only as signals to trains, who for his own amusement puts one of such torpedoes, upon the track in dangerous proximity to third persons, and'then moves his engine over it, causing it to explode and injure one of such persons, is not acting beyond the scope of -his employment, but is violating a duty resulting from such employment, and the company-is responsible for his acts.

4. An engineer who, knowing that a torpedo has been placed upon-the track in front of his engine in close proximity to bystanders, moves his engine over it in the course of his employment, is guilty of a negligent act for the proximate result of which, the railway company is liable.

Appeal from a judgment of the' circuit court for Renosha' county: E. B. Belden, Circuit Judge.

*Reversed.*

This is an action for personal injuries. Many of the facts-*14■are undisputed. It appears tbat in May, 1899, tbe defendant company constructed a temporary spur track along one ■of tbe streets of tbe city of Kenosha running into a public park in tbat city (in wbicb a library building was being constructed) for tbe purpose of delivering materials for tbe construction of,,the building; tbat tbe track was not fenced; tbat on tbe morning of July 6, 1899, a switch engine operated by an engineer and fireman ran over said track into tbe park for tbe purpose of pulling a freight car, wbicb bad run oil tbe •end of tbe track, back upon tbe track; tbat tbe engine was attached to tbe car, and made several attempts to pull it; tbat ■some boys were standing in tbe park nearby, watching the •operation, and tbat a delayed celebration of tbe Fourth of July was going on; tbat tbe plaintiff was one of tbe boys thus watching, and tbat be was about nine years of age; tbat ■either tbe fireman or tbe engineer descended from tbe cab of tbe engine, and placed- a railroad torpedo on tbe track about ■a foot from one of the driving wheels; tbat the man who placed tbe torpedo on tbe track immediately got into tbe cab again, and tbe engine was moved over tbe torpedo-, exploding it; and that a flying piece of metal therefrom buried itself in plaintiff’s leg, inflicting a serious injury; and tbat tbe plaintiff did not know what it was tbat tbe man put upon tbe track. Tbe engineer testified tbat be did not place tbe torpedo on tbe track, and did not know it was there, and the fireman testified tbat be placed tbe torpedo on the track for bis own amusement, and tbat tbe engineer did not direct him to do so nor know tbat it was done. On the other band, testimony was given tending to show tbat tbe engineer himself placed tbe torpedo on tbe track.

At the close of the evidence the court directed a verdict for ■the defendant, and from judgment thereon tbe plaintiff appeals.

For tbe appellant there were briefs by *Baker & Baker,*and •■oral argument by *N. L. Baker.*

They argued, among other *15that if tbe employees of defendant used its torpedoes gine while entrusted to them fin: use in its business, for their .amusement by negligently running the engine over the torpedoes, causing injury, the defend ant. would be liable, because the defendant has been negligent in the performance of its duly to guard and safely keep sucli'dangerous appliances. 1 Thompson, Negligence (2d ed.)' §§ 522, 523; 2 Shearman & Redf. Negligence (5th ed.) § *683; Toledo, W. &*Q. *R. Co. v. Harmon,*47 Ill. 298; *Chicago, B. & Q. R. Co. v. Dickson,*63 Ill. 151; *Nashville & C. R. Co. v. Starnes,*9 Heisk. 52, 24 Am. Rep. 296; *Skipper v. Clifton Mfg. Co.*58 S. C. 143, 36 S. E. 509; *Texas & P. R. Co. v. Scoville,*62 Fed. 730; *Dinsmoor v. Wolber,*85 Ill. App. 152; *Ritchie v. Waller,*63 Conn. 155, 27 L. R. A. 161; *Schaefer v. Osterbrink,*67 Wis. 495; *Pittsburg, C. & St. L. R. Co. v. Shields,*47 Ohio St. 387; *Harriman v. P., C. & St. L. R. Co.*45 Ohio St. 11; *Craker v. C. & N. W. R. Co.*36 Wis. 657; *Bryan v. Adler,*97 Wis. 124; *Fick v. C. & N. W. R.*Co. 68 Wis. 469.

*Edward M. Ilyzer,*for the respondent,

cited *Winkler v. Fisher,*95 Wis. 355; 1 Thompson, Negligence, §§ 526, 527; *Guille v. Campbell,*200 Pa. St. 119, 55 L. R. A. 11T; *Chicago, B. & Q. B. Go. v. Epperson,*26 Ill. App. 72, 79; *Smith v. L. V. B. Go.*78 Hun, 630; *Gousins v. II. & St. J. B. Go.*'66 Mo. 572; *Bowler v. O’Connell,*162 Mass. 319, 27 L. R. A. H'73, also note, p. 161. See, also, note in *Missouri, K. & T. B. Go. v. Edwards,*25 Am. & Eng. R'O&s. (N. S.) 431.

WiNsnow, J.

The respondent’s contention (which seems to have been adopted by the trial court) is, in brief, that the uncontradicted evidence shows that there was no occasion for the use of the torpedo' in the transaction of the defendant’s business; that it was placed in the care of the ’engineer, and the fireman had no authority to take it; that the fireman took it without the knowledge of the •engineer, and placed it upon the track for his own amuse*16ment; tíiat in so doing be was entirely outside the scope of" his employment, and hence that bis principal is not responsible for the results of bis act. If this contention were-fully justified by the facts it is difficult to see bow the conclusion could be avoided. We agree with counsel that the-evidence shows that there was no occasion for the use of the' torpedo at this time in the transaction of the defendant’s-business. It is clear that under the rules of the company it' was only to be used as a signal to be put on the track when it was desired to stop an approaching train. We also agree-that the evidence shows that it was placed in the care of the-engineer, and that the fireman bad no right to- use it, or authority to take it from the engine, save as directed by the engineer. We cannot, however, admit that the uncontradicted evidence proves that the fireman placed the torpedo on the track without the authority or knowledge of the engineer. It is true that the fireman testifies to this effect, and that the engineer denies that be put the torpedo on the track, or knew of- its being placed there, but there is evidence on the part of the plaintiff tending directly to show that the engineer himself placed the torpedo on the track. Tbe nature of the evidence was as follows: Tbe plaintiff and bis two companions testified that a man jumped from the cab, placed something: on the track, the character of which they did not know, and climbed back into the cab, pulled the lever, and started the engine, when the explosion took place. Tbe engineer testified that the fireman did nothing about the operation of the engine, but that be himself pulled the throttle, and started it. Again, the plaintiff at the trial identified the engineer (both fireman and engineer standing before him) as the man who-put the torpedo on the track. We regard this evidence as-amply sufficient' to carry the question to the jury.

So, in considering tbe motion to direct a verdict, it must be taken as though it were proven that tbe. engineer placed tbe torpedo on tbe rail, and moved tbe engine over it, caus*17ing tbe explosion; and the question is whether a verdict against the defendant could be sustained upon this state of facts. That railroad torpedoes are, in their nature, dangerous agencies, cannot be doubted. It is common knowledge that they are loaded with some high explosive, and with a sufficient amount thereof to cause a loud explosion; and the danger which, exists, even in the explosion of toy torpedoes, is too well understood to admit of doubt that railroad torpedoes should be considered as dangerous agencies as matter-of law.

; So' the situation to be considered upon the motion is this: The^ defendant placed these dangerous explosives in the custody of its servant, to be placed on the track in certain contingencies as a warning to approaching trains. The servant, however, placed one on the track yhen not contemplated by the employer, evidently for his -own-' amusement, and in dangerous proximity to third persons, ..and moved the engine over it, causing it to explode, and inflict injury on one of such persons; and the question is "whether a verdict for the injured person against the principal can be sustained under such circumstances. We think this question must he answered in the affirmative. The principle that a master is not responsible for the torts of his servant when the servant has departed from his employment is well understood. If this principle were as easy of application as it is of statement, we should have little difficulty; but, like many another simple and plain principle, its application-to concrete facts is sometimes very difficult. The question,- generally, is whether the servant has departed from his employment, or whether' he has departed from or neglected a duty in the line of that employment. In the first case the principal is not responsible for his acts, and in the second case he is. Applying the principle to the present case, supposing that "the jury had found that the engineer placed the torpedo on the track, it seems quite plain that a verdict for the plaintiff might be sustained. *18Tie engineer’s duty was to operate tie engine; to take care of tie torpedoes, and see that tley were nsed only at proper times and places. Tie company lad placed in lis charge tlese dangerous agencies, and authorized *him to*use *them*at proper times. In placing one of tlem upon tie track as le did, le was doing wlat tie company lad directly authorized him to do; but le was not doing it at tie time or place authorized by tie master. He was not beyond tie scope of his employment, but he was wilfully or wantonly violating a duty resulting from Ms employment, namely, lis duty to safely keep and properly use tie torpedoes. *There have been*many cases involving tie application of this principle, and they cannot be said to be entirely harmonious; but tie principle above stated is believed to be substantiated by tie great weight of authority. Tie doctrine is quite well stated in *Pittsburgh, C. & St. L. R. Co. v. Shields,*41 Ohio St. 387, 24 N. E. 658, 8 L. R. A. 464, as follows:

> “A servant may depart from his employment without making his master liable for his negligence when outside of tie employment of his master, and he so departs whenever he goes beyond tie scope of his employment and engages in affairs of his own, but he cannot depart from tie duty intrusted to him when that duty regards tie rights of others in respect to tie employment of dangerous instruments by tie master in tie prosecution of his business, without making tie master liable for tie consequences; for the first step in that direction is a breach of tie duty intrusted to him by tie master, and his negligence in this regard becomes tie negligence of the master.”

Tie cases upon this subject will be found quite fully cited in tie case of *Alsever v. M. & St. L. R. Co.*115 Iowa, 338, 88 N. W. 841. This was a case where an engineer blew off steam from a blow-off cock solely for tie purpose of frightening some children, and one of the children, by reason of her fright, fell, and broke her leg, and it was held that a verdict for the plaintiff could be sustained under the principles herein stated.

*19There is, however, another view'whieh-may be taken of the case as made by the plaintiffs evidence, which also leads to the conclusion that it was a proper .case for the jury to pass upon. If it be true as the evidence tends to show that the engineer placed the torpedo on the track, then he knew that a dangerous explosive was on the track immediately in front of the driving wheel at the moment he moved the engine, and that third persons were in close proximity. If, under such circumstances and with that knowledge, he moved his engine in the attempt to pull the car upon the track, the master would unquestionably be liable for injuries to such third persons which were proximately. caused by the engineer’s negligent act. Upon the plainest principles, the engineer could not, in prosecuting his master’s business, move his engine over an obstacle or dangerous place upon the track which was known to him, when such movement was plainly imminently dangerous to third persons, without rendering his master liable for the proximate result of his negligent act. These views necessitate reversal oh the judgment.

*By ihe Oourt.*— Judgment reversed, and action remanded for a new trial.