On Petition for a Rehearing.
Per Curiam.While a member of the Supreme Court Commission, Mi’. Commissioner Morris wrote an opinion overruling the petition for a rehearing. That opinion has been held under advisement by the court. The petition for a rehearing is now overruled, and the opinion written by the commissioner is adopted as the opinion of the court. It is as follows:
A petition for a rehearing, accompanied by an earnest and able argument, has been filed in this case. The appellee complains that in the opinion, no notice is taken of the fact that, in .several of the paragraphs of the complaint, the engine which is alleged to have run upon and injured the appellant is described as a “switching engine.” This is true, but as the engine is not described in any of the paragraphs as hav*559ing been used in connection with a passenger train, it was thought unnecessary to notice such fact.
It is held in the main opinion, that the servants of a railroad company, to whom the management and control of an engine has been entrusted, whether used for switching or other purposes, have, while using and controlling it, implied authority to remove from it any trespasser who may get upon it or attempt to occupy and control it. • In thus holding, the appellee insists that the court erred. The appellee admits, as we understand its counsel, that those in charge of its passenger engines and trains have implied authority, as its servants, to remove and put off persons wrongfully upon such engines and trains; but it denies that its servants, to whom it has given the management and control of a “ switching engine,” have implied authority to remove from it persons wrongfully upon it while so being used by its servants in the transaction of its business. If such servants have no such implied authority, a rehearing should be granted; if they have such authority, the petition should be overruled.
It is said by the appellee, that switching engines are used for local purposes — to place and replace cars, etc. — and not for the purpose of receiving and discharging passengers; that, therefore, its employees have no implied authority to remove from an engine committed to their care for such purposes, persons wrongfully upon it, whether their presence may or may not interfere with the use of the engine and the business to be transacted. Several cases are cited in support of this view. The first case to which the appellee calls our attention is that of Towanda Coal Co. v. Heeman, 86 Pa. St. 418. In this case a minor had climbed upon one, of the defendant’s coal cars when in motion. A brakeman drove him off by throwing coal at him. He was hit in the face by a piece of coal which caused him to fall, whereby he was injured. It was held that the defendant was not liable. The proof showed clearly that the brakeman was not in charge of the coal train; that, though a coal train (the appearance *560of which showed that it was not used for transporting passengers), its conductor, as its general manager, had authority to remove trespassers from it. This was conceded by the defendant’s counsel, and the reasoning and whole drift of the case show, that had the conductor violently removed the boy, a different result would have been reached.
The next case cited by the appellee is that of Marion v. Chicago, etc., R. R. Co., 59 Iowa, 428 (44 Am. R. 687), in which it was held that the defendant was not liable for the act of a brakeman in putting a trespasser off a freight train in motion, without direction from the conductor, who alone was authorized by the defendant to order such ejection. The court held the defendant not liable, because the brakeman had no authority, express or implied, to remove trespassers from the train. But it further held that the conductor, by his general employment as the manager of the train, had such authority, and that, had he ejected, as did the brakeman, the plaintiff from the train, the defendant would have been liable. And we think it equally clear that, had a tramp got upon the engine, not as a passenger or for the purpose of stealing a ride, but from mere idle curiosity, the conductor or engineer would have had authority to remove him, not because he had charge of passengers, but because he had the general control of the engine and train. The removal of such a trespasser would have about the same relation to the business of transporting passengers that the removal had, in the case before us, to the business of changing the position of cars. If the servant in charge of the freight train would be acting within the scope of his authority in removing from his engine such a trespasser, would not the servant, in charge of a switching engine, also have the implied authority to remove such a trespasser from the engine in his charge? The relation of the servant and the trespasser to the business of the employer would be the same in both cases. The trespasser upon the engine would interfere no *561more with the transportation of freight or even passengers, than he would with the changing of cars.
The next case relied upon by the appellee, which we notice, is that of Wright v. Wilcox, 19 Wend. 343. The defendant’s servant was driving a wagon. A boy asked permission to ride. The servant said he might when he got to the top of a hill which he was then ascending. The boy got hold of the side of the wagon between the front and hind wheels. The servant cracked his whip and the horses started into a trot, whereby the boy was thrown under the wheels and injured. The master and servant were sued jointly. It was held by the court that they were not jointly liable. It was also held that the act of the servant was clearly wilful, and that, therefore, the master was not liable. The court, following the rule stated in McManus v. Crickett, 1 East, 106, says:
“ If Stephen,” the servant, “in whipping the horses, acted with the wilful intention to throw the plaintiff’s boy off, it was a plain trespass, and nothing but a trespass, for which the master of Stephen is no more liable than if his servant had committed any other assault and battery. All the cases agree that a master is not liable for the wilful mischief of his servant, though he be at the time, in other respects, engaged in the service of the former.” Again, the court says: “ The law holds such wilful act a departure from the master’s business.” This statement of the law is not correct. If the act of the servant is within the scope of his employment, the master is liable, however wilful the act on the part of the servant may have been. In speaking of this and the class of •cases to which it belongs, Thompson in his work on Negligence, pp. 886-7, says: “ If he,” the servant, “ makes use of his master’s property in committing this wrong, he will be deemed, according to the fantastic reasoning of Lord Kenyon” in McManus v. Crickett, supra, “to have acquired, for the time being, a special property therein. The fallacy of this reasoning was, that it made a certain mental condition of the ser*562vant the test by which to determine whether he was acting about his master’s business or not. Moreover, with respect, of all intentional acts done by a servant in the supposed-furtherance of his master’s business, it clothed the master with immunity if the act was right, because it was right; and if it was wrong, it clothed him with a like immunity because it was wrong.” He further says: “A doctrine so fruitful of mischief could not long stand unshaken in an enlightened system of jurisprudence.” See the cases cited on p. 887, repudiating the doctrine, which the author says is not the law.
The case of Isaacs v. Third Avenue R. R. Co., 47 N. Y. 122 (7 Am. R. 418), relied upon by the appellee, has been substantially overruled. Wood disapproves the case in his. work on Master and Servant.
The case of Shea v. Sixth Avenue R. R. Co., 62 N. Y. 180, is, in its reasoning, opposed to it. In Mott v. Consumers’ Ice Co., 73 N. Y. 543, Judge Allen, who prepared the opin^ ion in the case, admitted that it had been questioned, that it was a “ border case,” arid that it “ may seem to infringe upon some of the other reported cases.”
Other cases are referred to by the appellee. We have examined them, and think they are not in conflict with the main opinion in this case.
In the case of Hoffman v. New York Cent., etc., R. R. Co., 87 N. Y. 25 (41 Am. R. 337), it was held that a brakeman on a passenger train, as well as the conductor, had implied authority to remove from the train a boy who had jumped on the platform of one of the ears for the purpose of stealing a ride, and that the employer would be liable if he improperly removed the boy while the train was in motion. The court says: “Suppose a train was standing still, and a trespasser was put off by force by a brakeman, using no unnecessary violence, would it not be a good defence to an action against him for the assault, that he was a brakeman, and did the act complained of in that capacity, although without express authority? The implied authority in such a case, is an inference from the nature of the *563business, and its actual daily exercise, according to common observation and experience.” Equally may the authority of those in charge of a switching engine to remove trespassers from it be inferred from the nature of the business and its actual daily exercise, according to common observation. And so, too, might one, in charge of such an engine, if sued for assault for removing a trespasser from it, answer that he was in charge of it as the servant of the company. The court, in support of its decision, refers to Bounds v. Delaware, etc., R. R. Co., 64 N. Y. 129.
In the case- of Benton v. Chicago, etc., R. R. Co., 55 Iowa, 496, a boy had entered an empty freight car to steal a ride. He was discovered by the conductor and roughly ordered out. The train was in motion. The only way of escape was through a window, and 'the boy, in attempting to crawl out, lost his hold and fell upon the track, and was run over and killed. It was held, upon proof of these facts, that the case should go to the jury. No doubt was expressed as to the authority of the conductor properly to remove the boy. The train was not a passenger train, but a freight train. Presumably, it was to be used simply for the transportation of freight. The conductor’s authority to remove trespassers from such a train can be inferred or implied only from the fact that he has control of the train, and from the nature of the business and the means employed in its transaction. The exercise of such power is necessary alike for the protection and security of the employer and the public.
In the case of Evans v. Davidson, 53 Md. 245 (36 Am. R. 400), a general farm servant, in the absence of his master, undertook, with other servants, to drive a cow of the plaintiff out of his master’s cornfield into which she had broken, and, in doing so, struck the cow with a stone and killed her in the field. The master was held liable.
In the case of Cauley v. Pittsburgh, etc., R. W. Co., 98 Pa. St. 498 (4 Am. & Eng. R. R. Cases 533), a boy got upon a sand car standing upon a switch. The oar was moved a few yards, *564and while in motion the conductor ordered him off. In obeying the order the boy was injured. Upon the trial the boy offered to prove the above facts. The court ruled the offered evidence out, on the ground that the facts did not tend to prove negligence on the part of the defendant’s servants. Paxson, J., says: .“All the conductor did was to order the plaintiff off the car. This was his duty to do. The boys were trespassers, and their removal from the cars was not in itself a cause of complaint. Was there anything in the manner of their removal which would render the defendant company liable in damages? The plaintiff was not thrown off. He was not touched by the conductor or any railroad employee. * * * Before the company can be held liable it must appear that the'injury to the plaintiff was the natural and probable result of the conductor’s order.”
The court held that the offered evidence did not tend to prove this, and that, therefore, there was no error in its exclusion. But the court also held that it was the duty of the conductor having control of the sand car to remove the trespassing boys from it. The conductor’s authority was not inferred from the fact that it was his duty to receive and discharge passengers on and from the sand car, for its form and construction, as well as its use, was notice to him and all others, that it was not intended and could not, any more than a switching engine, properly be used for any such purpose. It was his duty to remove trespassers from the sand car, because its management and control had been entrusted to him, and because such a use of the sand car by trespassers would be incompatible with the use which the conductor was, by his employment, required to make of it in the transaction of his employer’s business. The court assumed that, had the conductor improperly removed the plaintiff from the sand car, the defendant would have been liable. This case is, we think, directly in point. Had the appellant wrongfully intruded himself into and occupied the engineer’s cab, to the exclusion of the latter, could not those in charge of the engine *565have removed him, using no unnecessary force. Would not the possession and control of the engine, and their duty to use it in placing and replacing cars, have clothed them by implication with authority to remove such a trespasser? Would it not, as in the case just cited, have been their duty to do so ? If the position of the appellee is the law, those in charge of the engine would have no power to remove the trespasser, because the engine was not to be used in hauling passengers, instead of placing and replacing cars.
As against those to whom the possession of the engine had been given for a special purpose, and the exclusive possession and control of which were essential to accomplish that purpose, the trespasser must be regarded as the rightful occupant of the engine, though his possession, by preventing the use of it in placing and replacing ears, might ruinously delay the transportation of freight, endanger the safety of property and passengers, and expose the employer to incalculable losses. We think the appellee, by placing its servants in possession of a switching engine for the purpose of placing and replacing cars upon its track at Lafayette, impliediy gave them authority not only to retain the exclusive possession of the engine while so engaged, but to remove from it all trespassers and wrong-doers.
In the case of Johnson v. Chicago, etc., R. R. Co., 58 Iowa, 348, it was held that those in charge of the appellant’s station-house had implied authority to remove from the waiting room a person who was not there for the purpose of taking passage on the appellant’s road, and that, if unnecessary force and violence were used in his removal, the appellant would be liable. It was, says the court, nothing more than the application of the ancient rule, that if one person came into the dwelling-house of another'without right, after requesting him to depart, and-his refusal to comply, he may be removed by gently laying hands upon him and using such .force as is reasonably necessary tó effect the object. Because the employer might, if present, remove from its engine a trespasser, *566or from its station-house an intruder, so may the servant to whom the possession, care and use of the station-house or switching engine have been intrusted, remove from the one or the other trespassers and wrong-doers. It is the right of possession in the master, and the duty of the servant to whom the property has been intrusted, to keep and maintain that possession for the master, which give the latter the right to remove trespassers. See also the case of Nashville, etc., R. R. Co. v. Erwin, 3 Am. & Eng. R. R. Cases 465.
Filed Feb. 11, 1885.