Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-04-22

MdTCn {, 1879.
A RAILROAD COMPANY WHICH
HAS LEASED ITS ROAD is LA
BILE FOR THE NEGLIGENCE OF
ITS LESSEE, UNLESS SPECIALLY
EXEMPTED BY LAW.
WHEN THE EMPLOYEE OF \
RAILROAD COMPANY COMPELS
a TRESPASSER TO GET OFF a
MOVING TRAIN, AND IN CONSE-
QUENCE THE TRESpASSER IS
KILLED. THE COMPANY IS LA
BILE, EVEN THOUGH THE EN-
PLOYES ACT WAS WANTON AND
MALICIOUS
This was an action for the recovery
OF damages for the death of the plain
TITS intestate, a boy of from II to -
years of age, who was run over and
killed by the defendants engine and
tender while shifting cars in the town
OF Salisbury. There was Il verdict and
judgment in the lower court for $1,000
and defendant appealed. The Court
SAYS:
The motion to dismiss the complaint
and for Judgment OF nonsuit appears,
from the brief of defendants counsel,
to be intcuded to raise again the Ques-
ton whether the lessor company, the
Ncrth Carolina Railroad Company the
defendant herein, Is liable "for all acts
done b. ;he lessee in the operation OF
the road" but why the counsel should
feel encouraged 10 believe" that "this
court will retire from the position it
has taken uron this question:" we are
not advised. We have perceived no
lack Of "soundness of rca soninS" there
H. The decision in Loran's case was
made after full elaboration. and with
In f,,l Il;
of the important principle now again
called in question, and 1t was held that
"a railroad company cannot escape it's
responsibility for negligence by leasing
Its road to another company. unless its
Charter or subsequent act OF the Leg
lslaturc specially .cXempts 1t from ia-
biity IN such case; and it was made
In an action to which the appellant
herein was the party raising the ques-
ton. The assumption in these prayers
that the defendant is not liable il the
plaintiffs intcstate was killed by the
Wanton, willful and malicious act of
one OF the employees of the defendant
and especially if such act was not done
In fnrthcrance of the business of the
defendant, cannot be sustained. The
true test is was 1t done by such en-
ployee in the scope of the discharge of
duties assigned him by the defendant,
and while in the discharge OF such du-
ties? I'm furthcrancc of the business
OF employer" means simply in the dis
charge of the duties of the employment;
and the court properly told the jury
that the defendant is responsible for
the injury, il caused by the wrongful
act of the employee while acting in
the scope OF his employment.
But ii is needless to multiply cases
All of them hold that such cjcctmcnt
is done by the servant in the general
scope OF his employment and if done
recl;lessly or wantonly and maliciously,
and even if in n manner forbidden by
the masters orders, the company is
liable for the tortiouS act. The ground
is that the oroXimatc cause of the in
jury is not the trespasser's wrongfully
getting on the cars. but the tortious
manner in which the servant makes
him get off, and that, this act being in
the general scope of the servants en-
ployment the master is liable In the
present case, whether the child Jumped
off because ordered by the brakeman.
or by reason OF the hint of n lump of
coal whizzing by his head. or was ac-
tually struck and knocked off. this
mode of getting him off the moving car
was tortious, and the defendant is liable
Tor the injury caused thereby. The de-
PENDANT. however. earnestly contends
that, IL the servants act was malicious,
the company is not liable for negli-
Eence. If that theory ever obtained, the
above authorities show that it was con-
trary to reason, and has been duly and
fully exploded. The company is not
charged in this case with malice be-
cause of the alleged malice of it's agent,
and whether 1t could be held liable for
punitive damages is not before u.s. 1t
Is certainly liable for compensatory
damages for the injury sustained from
the tort OF Its servant. Affirmed.