Rowell v. Railroad , 68 N.H. 358 ( 1895 )

The question raised here is whether the defendants' motions for a nonsuit and for a verdict in their favor should have been granted. If the plaintiff, when the conductor attempted to eject him from the freight car, was there without right and was a trespasser, yet he had a right to have the case submitted to a jury, if there was any evidence from which it was competent for them to find that the act of the defendants' servant, in ejecting or attempting to eject the plaintiff from the car, was within the scope of the servant's employment, and that he ejected or attempted to eject the plaintiff without giving him sufficient opportunity to leave the car, or if in so doing more force was used than was necessary. The master is responsible for the acts of the servant while engaged in his master's work, which are done as a means and for the purpose of performing that work; and this is so, whether the wrong is done by the servant's performing his master's business in a negligent manner, or by a wanton or reckless purpose to accomplish it in an unlawful manner. When, however, the servant, for his own purpose, does a wrong without the direction or authority of the master and not for the purpose of executing his orders or doing his work, the master is not liable. Wilson v. Peverly, 2 N.H. 548; Grimes v. Keene,52 N.H. 330; Andrews v. Green, 62 N.H. 436; Howe v. Newmarch, 12 Allen 49; Bowler v. O'Connell, 162 Mass. 319; Rounds v. Railroad, 64 N.Y. 129; Cool. Torts 534, 538.

It appears that Woodbury was the conductor in charge of this freight train for the defendants; that in the exercise of his authority over the car which the plaintiff entered, he ordered the plaintiff to leave; and was attempting to enforce this order by putting him out of the car. There was some evidence for the consideration of the jury and from which they might have found that he was performing this act as the business of his master, and that it was within the scope of has employment. There was also some evidence that Woodbury, upon ordering the plaintiff to leave the car, almost immediately ejected or attempted to eject him, slapped him in the face, and struck him so hard that the finger prints were on his face a short time thereafter. This was competent for the jury to consider on the questions of whether Woodbury ejected or attempted to eject the plaintiff without giving him a sufficient opportunity to leave, or used more force in ejecting him than was necessary, and from which they might have determined these questions in the plaintiff's favor. The defendants' motions for a nonsuit and for a verdict in their favor were properly denied.

Exceptions overruled.

All concurred.