(after stating the facts.) In Flower v. Pennsylvania Railroad Company, 69 Pa. St. 210, the facts were as follows: “A train of defendant’s coming into the city, the engine, tender and one car were detached from the remainder, and run, under the charge of the fireman in the engineer’s place, to a water-station belonging to the defendants. At the station, the fireman asked a boy ten years old, standing there, to turn . on the water; while he was climbing the tender to put in the hose, the,remainder of the train came down with their ordinary force, struck the car attached to the engine, the jar threw the boy under the Ayheels, and he was killed.” In action by the parents for his death, it was held that, it not being in the scope of the engineer’s or fireman’s employment to ask any one to come on the engine, the defendants were not liable; that the boy, in climbing on the tender at the request of the fireman, did not come within the protection of the defendants, and they therefore owed no duty to him. The appeal in this case was before Justices Agnew, Sharswood and Williams. Judge Agnew delivered the opinion of the court. He said : “Whether the boy could be treated as a mere trespasser is scarcely the question. His youth might possibly excuse concurrent negligence, where there is clear negligence on the part of the company. The true point of this case is that, in climbing the side of the tender or engine, at the request of the fireman, to perform the fireman’s duty, the son of the plaintiffs did not come within the protection of the company. To recover, the company must have come under a duty to him, which made his protection necessary. * * * Nor can the mere youth of the boy change the relations of the case. That might excuse him from concurring negligence, but cannot supply the place of negligence on the part of the company, or confer an authority on one who has none. It may excite our sympathy,'but cannot create rights or duties which have no other foundation.”
In Eaton v. Delaware, etc. R. Co. 57 N. Y. 382, it is said that railroad companies have the right to make a complete separation between their freight and passenger business. When this is done, the conductor of a freight train has such general authority only as is incidental to the business of moving freight, and no power whatever as to the transportation of passengers; and notice of this limited authority will be implied from the natural and apparent divisions of the business. “In the great transactions of commercial corporations, convenience requires a sub-division of their operations among many different agents. lOach of these may have a distinct employment, and become a general agent in his particular department, with no powers beyond it,” p. 389.
In Stone v. Hills, 45 Conn. 47, it is said: “The rule is that for all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master’s business, within the scope of his employment, and for acts in any sense warranted by the express authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible; for acts which are not in these conditions, the servant alone is responsible.”
In Storey v. Ashton, Cockburn C. J. said: “We cannot adopt the view of Erskine J. in Sleath v. Wilson,1 that it is because the master has intrusted the servant with the control of the horse and cart that the master is responsible. The true rule is that the master is only-responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.” L. R. 4 Q. B. 476. “Thus, it will be seen that, in the absence of express orders to do an act, in order to render the master liable, the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the employment.” Wood’s Law of Master and Servant, 546.
In the case at bar the section foreman was not only not authorized, expressly or by implication, to permit persons to ride on the hand car, but had been expressly forbidden by the rules of the company and otherwise to permit it, and there was no custom to permit persons to ride on the hand car shown to have been known to, or acquiesced in by the officers of the railroad company. “In order that the corporation should be made responsible by reason of such a custom, it was necessary to show that it was actually known to the officials who conducted its business, or that it was so general and of such long continuance that it must be fairly inferred that it was known and assented to by them.” Powers v. Boston, etc. Rd., 153 Mass. 191. Such is not shown to have been the case here. The court deems it needless to set out or discuss the instructions. The court is therefore of the opinion that there is a total failure in this case of evidence to show any liability upon the part of the railroad company. Wherefore the judgment is reversed, and the cause is dismissed.
Wood, J., being disqualified, did not participate in the determination of this cause.. 9 C. & P. 607, 612.