St. Louis, Iron Mountain & Southern Railway Co. v. Lavendusky

113 S.W. 204, 87 Ark. 540, 1908 Ark. LEXIS 110

Opinion

Wood, J.,

(after' stating the facts.) It was beyond the scope of the employment of the yardmaster to throw coal 'from appellant’s car in the manner shown by the evidence. Appellant had not invested him with such authority, either real or apparent. The act was not for the benefit of appellant, and was a tort for which appellant was not liable. St. Louis, I. M. & S. Ry. Co. v. Grant, 75 Ark. 579; St. Louis, I. M. & S. Ry. Co. v. Bryant, 81 Ark. 369; Railway Co. v. Bolling, 59 Ark. 395.

The evidence does not show that Lavendusky was upon the public highway. It is not shown that the path where he was at the time of his injury was a part of the public highway. He was therefore a trespasser, Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300; St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513. The appellant owed him no positive duty to exercise ordinary care to protect him from injury. The doctrine that railway companies are liable for injuries to trespassers caused by failing to exercise ordinary care to avoid injuring them after their perilous situation has been discovered can have no application in cases where the servant’s acts causing the injuries are beyond the scope ¡of his employment.

The case of Fletcher v. Baltimore & P. Rd. Co., 168 U. S. 135, relied upon by appellee, is not in point. Fletcher, the plaintiff in error, at the time of his injury was upon a street crossing, where he had the right to be, and where the company owed him the duty to exercise ordinary care to avoid injuring him. Likewise, in the case of St. Louis S. W. Ry. Co. v. Underwood, 74 Ark. 610, the party injured was upon the public street. Other reasons also distinguish these and other cases relied upon by counsel for appellee in his oral argument from the case at bar.

For the reasons expressed the judgment is reversed, and t'he cause is remanded for a new .rial.