(after stating the facts). It is contended that the court erred in giving these instructions, which, it is claimed, make the master liable for the tortious acts of his servants resulting in damages, without regard to whether the servant at the time was acting within the scope of his employment.
These instructions submit the question of the liability of the railroad to the payment of damages for the injuries inflicted upon the appellee upon the theory that he was a trespasser upon a train which did not carry passengers, and authorized them to find against the defendant if the injuries were inflicted wilfully and wantonly upon the appellee by any of the servants of the railroad in charge of the train, whether such servant was acting within the scope of his authority at the time or not.
In Railway v. Hackett, 58 Ark. 386, this court said: “ Such, in our opinion, is not the law, according to the weight of authority. The intention with which Gallagher acted can not affect the liability of the railroad company, though it might affect the amount of damages. Cleghorn v. N. Y. Cent. & H. R. Ry. Co., 56 N. Y. 47. The question is, was Gallagher, at the time he fired the pistol, acting in the course of his employment as night watchman for the railroad company? If he was, the company is liable in damages for any wrongful act of his in the course of his employment. Of course, if the act causing the injury was outside of the course of the servant’s employment — disconnected with the service of the company — then the company would not be liable.”
In Sweeden v. Atkinson Improvement Co., 93 Ark. 397, the court said: “But it is also well settled that the master is not liable for an independent, negligent or wrongful act of a servant, done outside the scope of his employment. 2 Cooley on Torts, 1030; 26 Enc. 1526. The act of the servant for which the master is liable must pertain to something, that is incident to the employment for which he is hired, and which it is his duty to perform, or be for the benefit of the master.”
Wood, on Master and Servant, p. 540, states it as follows:
“But if the act of the servant is not expressly ordered by the master, or within the scope of his employment, the master is not liable therefor, even though done in the course of his employment. The question is whether the act was expressly or impliedly authorized by the master, and this is a question to be determined by the jury, in view of the employment, its character, the nature of the services required, the instructions given by the master, and the circumstances under which the act was done. ”
It is not contended that the acts causing the injury were authorized or ratified, and the appellant was only liable for them if done by its servant in the performance of his duty within the scope of his employment, which is usually a question to be determined by the jury. St. Louis, I. M. & S. Ry. Co. v. Grant, 75 Ark. 584; St. Louis, I. M. & S. Ry. Co. v. Pell, 89 Ark. 87; St. Louis, I. M. & S. Ry. Co. v. Hendricks, 48 Ark. 181; Ward v. Young, 42 Ark. 552.
Appellee insists that, if appellant desired this question submitted to the jury, it should have asked a correct instruction embodying it, and, not having done so, it can not complain .of the instructions given. But the master is only liable for the acts done by his servant while in the performance of his duty in his employment, and the instructions given, leaving out this feature, do not correctly declare the law.
The second section of instruction numbered 8 authorizes the jury to find for the plaintiff,' although he was a trespasser, if the servants of defendant, in charge of the train, assaulted, beat and injured him, provided he had not provoked the assault, leaving out entirely any question as to whether the assault was committed in the performance of any duty to the master or for its benefit.
Said instructions were erroneous and prejudicial, and the judgment is reversed, and the cause remanded for a new trial.