
    No. 10,543.
    Daniel Candiff et al. vs. Louisville, New Orleans & Texas Railway Company.
    1. A hrakeman employed on a freight train in charge of a conductor has no implied authority to bind the company by a contract of passage, and his permission to a person to ride does not make such person a passenger.
    2. If it he true, as stated by plaintiff’s witness, that defendant’s conductor, on discovering that a oar had been broken open, believing that it had been done by a certain person, coolly walked up to suoli person as be was standing quietly at a station, saying and doing nothing, and shot him down without a word, such an act would he a murder entirely beyond the scope of any employment or function of the conductor, for which the company could not be held responsible.
    3. If, on the other hand, the conductor’s statement be true, that the person shot was detected in having broken open one of the ears in the night time, and when discovered jumped out of the car and ran, and refused to stop when halted, and was thereupon fired at and shot by an employe of the train, in such ease the criminal’s joint and contributing- fault would bar his recovery in a civil' action for damages.
    PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.
    
    
      Branch K. Miller for Plaintiffs and Appellees:
    One who goes upon a freight train for transportation, with the permission of the • hrakeman, to whom he pays a sum received as fare, and by whom he is induced 38 An. 115; 4 Am. and Eng. R. R. Oases, 589. to believe lie is a passenger, is a passenger, as regards the railway company.
    The conductor of a freight train represents the railway, which is responsible for his negligent or wilful acts within the scope of his employment. 37 An. 632, 654; 39 An. 1019; 112 U. S. 377.
    A master is responsible for the wilful as well as the negligent acts of his servant, if done within the scope of his employment, or under color thereof. 40 An. 91; 34 Am. and Eng. R. R. Cases, 316, 281; 46 N. Y. 23; 12 Hun. (X. Y.) 435; 12 Allen (Mass.) 49; 104 Mass. 117; 38 Ind. 125; 55 Mo. 212; 21 Ohio St. 518; 3 Hun. (N. Y.) 329; 63 111. 151; Patterson’s Railway Accident Law, Sees. 109, 111, 118; 36 Wis. 657; 103 111. 546; 60 Ga. 281; 13 Federal Rep. 116; 15 Am. and Eng. R. R. Cases, 142; 4 Am. and Eng. R. R. Oases, 537; 28 Am. and Eng. R. R. Cases, 456; Wood on Master and Servant, page 567, See. 307, pages 552, 553; Wharton on Negligence, Sees. 157, 158, 160; Bishop’s Non-Contract Liability, Secs. 608, 609.
    A railway company is responsible for the tort of one, incited and encouraged to its commission by a conductor of the company within the scope of his duty. 1 Balden (Conn.) 571; 1 Hun. (N. Y.) 52; 39 La. An. 1030.
    
      Farrar, Jonas & Kruttsohnitt for Defendant and Appellant:
    A.
    Even if the facts stated by plaintiffs on page 3 of their brief were correctly stated, plaintiffs would not bo entitled to recover for the reasons following, to-wit:
    
      1. Permission to a person to ride on the train of a railway company by an employe, not shown to have been in charge of the same, does not make such person a passenger, nor entitled to the rights of a passenger. lieary vs. Railway Company, 40 An. 38; Hanson vs. Railway Company, 38 An. llo, and authorities cited by the court in both of these cases.
    2. liven if such person be a passenger under the circumstances above stated, the obligation of the railway company to protect him is limited to the police of its trains, and of its station yards or approaches to its trains, and does not extend to any part of the open country through which its tracks pass, and where a passenger chooses to alight from the train.
    3. The obligation of a railway company to one not its passenger is governed by the general principles of the law of master and servant, viz: That it is liable for the wrongful act of its servants, only if such acts were committed in the exercise of the functions in which they were employed, and were contemplated by their employment, and which, if properly and lawfully done, would have been within the scope of their functions. liven if the injured party was not a trespasser, but was lawfully on defendant’s premises, and was properly dealing with defendant’s servant as a servant, these facts do not suffice to fix defendant’s liability, if the assault was wanton and entirely foreign to the functions committed to the servant; otherwise a merchant, or a store keeper, or a householder, would be liable for wanton assaults committed by their clerks or servants upon customers or visitors, which liability would clearly not exist unless the masters were guilty of negligence in employing so dangerous a servant. "Williams vs. Pullman Car Co., 40 An. 89; Ware vs. Barataría Canal Co., 15 La. 169; Dyer vs. Rieley and Leathers, 28 An. 6; Porter vs. O. R. I. & P Ry. Co., 41 Iowa 358.
    Under the laws of the State of Louisiana a master is not liable for the unlawful act of the servant which has caused injury to a person with whom the master has no contractual relations, unless the master could have prevented the injury and failed to do so. C. C. 2320.
    4.Ifiven if the court should conclude that Daniel Candiíf, Jr., boarded defendant’s train in New Orleans without any criminal or improper intent, and by permission of one of its brakemen; that he road to Burnside station; that he there descended from the roof of a car upon which he had been riding; that whilst standing at the side of said ear he was approached by a brakeman or conductor of the defendant company, who wantonly, maliciously, and without the slightest provocation shot him dead, the court must, nevertheless, decide in favor of defendant, unless it be further proved that defendant authorized its employes to arm themselves, and to take human life whenever they might conclude such taking to be necessary and proper in the course of their employment, and in the service of the defendant.
   The opinion of the court was delivered by

Fenner, J.

This is an action by a father and mother to recover damages for the killing of their minor son by a servant of the defendant company.

The discrepancy between the facts alleged in the petition and those appearing on the evidence is very wide.

The petition discloses that, on May 6, 1889, their son, “took passage for Point Houmas, La., on a train of said company, and duly paid his fare to the conductor of the train;” that at Burnside station, while the train was stopping, he descended from the train; that while thus being at said station, an alarm was raised that a freight car of the train was being broken open and robbed by thieves; that the conductor, brakeman and other employees ran to said car to drive off and capture the-thieves, and that the conductor or one of the other employees, mistaking the son of petitioners for one of the thieves, shot him with a pistol, etc.

The evidence discloses a very different state of facts.

Plaintiffs’ case rests entirely upon the testimony of a single witness, a colored youth named Esteve, who is contradicted on nearly every important point by other witnesses, and who contradicted himself by inconsistent statements made at different times.

His story is that he and the boy, Candiff, got on top of a car of a freight train of defendant at New Orleans to ride to Kenner; that they gave one of the brakemen of the train 15 cents to let them ride; that before reaching Kenner they called the brakeman, and wishing to go further, gave him a dollar; that, when the train stopped at Burnside station, they descended to ease their limbs; that, as they were so, quietly standing there, no alarm or excitement existing, the conductor came up to them and shot Candiff, and then putting his pistol at witness’ face accused him of breaking into the car, and ordered him to get back into the car. He says distinctly that there was no alarm or excitement, and he heard nothing about a car being broken into until after the shooting.

It is very clear, under this statement, even if true, that Candiff and Esteve were not passengers. They were simply engaged in stealing a ride on defendant’s train with the corrupt connivance of a brakeman.

The brakeman of a freight train has no implied authority to bind the company by contracts of passage.

The train had a conductor, as Esteve admits he knew, who had charge of the train, and who alone, if any one, could have accepted these parties as passengers. Reavy vs. R. R. Company, 40 An. 33; Patterson Railway Acc. Law, Sec. 209.

But the brakeman denies the whole of Esteve’s story; says he never consented to their riding, and was not aware that they were on the car until just before the train stopped at LaPlace Station, when he discovered them standing on the draw-heads between two cars, and that, at LaPlace, he ordered them off the train, and supposed they had left.

The conductor says that when the train was stopping at Burnside, as he walked along, he heard talking in one of the box cars; that, anticipating trouble, he stepped into the station agent’s office and borrowed a pistol for self-protection; that he then walked to the car and discovered that it had been broken open by cutting the seal and knocking off the cleat, and that some persons had been in the car; that it was night and he could not see the persons; that about that time one of the brakemen came up; that then two men jumped out of the ear and started to run; that he told them to stop and they did not stop; and that then the brakeman fired and shot one of them, who proved to be Candiff.

Whether we accept the version of Esteve or that of the conductor, it is plain that the railway company can not be held liable.

We have already said that the relation of carrier and passenger did not exist, and defendant’s liability vel non is governed by the law of master and servant.

If Esteve’s version be true, the shooting of Candiff was as coldblooded a murder as Was ever committed. It presents the conductor-as coolly walking up to a man standing quietly, doing and saying nothing, and shooting him down without a word. No stretch of the doctrine that masters are responsible even for the torts of their servants when done within the scope of their employment and in the exercise of the functions in which they are employed, can make it cover such an act as this.

Admitting that the conductor is charged with the duty of protecting the cars and contents confided to his care, and that acts done in execution of such charge are within the scope of his employment, and admitting that he supposed Candiff had broken into the car, and shot him for that reason, in what manner was such shooting, under such circumstances, necessary or conducive to the protection of the property?

If, on the other hand, we accept the conductor’s version, we have the case of a man detected in the crime of breaking open a car in the night-time, who attempts to escape by running away, who, when ordered to stop by parties in charge of the property, refuses to do so, and who is then shot by one of said parties.

It is not necessary to justify the act of the brakeman or to decide whether or not it was within the scope of his employment, in such manner as to make the company responsible. It is very clear that, in such a transaction, the party detected in the commission of a crime, and shot while attempting to escape arrest, would be in a case of such contributory fault that the law would afford him no relief in a civil action for damages.

Counsel for defendant suggests the very apt analogy of a night watchman employed to guard a house. He detects burglars in the house, who attempt to escape, and on their failing to halt when called to do so, he shoots one of them. Could the burglar shot be listened to in an action of damages?

On the other hand, if the watchman had discovered that a burglary had been committed, and, some time afterward, seeing two persons standing quietly in the street, whom he supposed to be the burglars, he walks up to them and shoots one of them without a word, who proves to be innocent, would his employer be liable?

These questions seem to us to answer themselves.

It is, therefore, adjudged and decreed, that the verdict and judgment appealed from be annulled and set aside, and that there be now judgment in favor of defendant, rejecting the demands of the plaintiffs at their costs in both courts.  