
    John Lang, App’lt, v. New York, Lake Erie and Western Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    Master and servant—Injury to third person.
    The question whether a servant, when he injures a third person, is acting within the scope of his authority, is for the jury.
    Appeal from a judgment dismissing the complaint.
    
      C. D. Rust, for app’lt; Benjamin F. Tracy, for resp’t.
   Brown, P. J.

—The plaintiff, a'boy of 11 years of age, while riding upon a coal train of the defendant, going from Bergen to Weehauken, fell off, and received the injuries complained of. The plaintiff’s testimony, however, was to the effect that one of the brakemen of the train threw coal at him, and as he was about to get off he was hit in the back of the neck by a large lump of coal thrown by the brakeman, and knocked from the car. The complaint was dismissed on the ground that the brakeman was not shown to have any express authority from the defendant to remove intruders from the train, and nbne could be implied from his position, or the nature of his employment, and the correctness of that ruling is .the only question presented for review.

We are of the opinion that the case, in all its aspects, was for the jury. The question as to the liability of a master for the acts of his servant is one that has received full and careful consideration in numerous cases in this and other states. It is not always possible to harmonize the decisions, and it would be impossible, in an opinion of ordinary length, to attempt a review of the numerous cases to which our attention has been called by the learned counsel who argued this appeal. The general rule applicable to a master’s liability is quite well settled, but it is difficult to apply it to the different circumstances under which the question arises. The learned counsel for the respondent has cited the case of Coal Co. v. Heeman, 86 Pa. St. 418, in which the facts are quite similar to those before us, and which fully sustains the ruling of the trial court; but that case is, we think, opposed to the current of authority in this state. The test of the master’s liability is not whether the injury is the result of acts committed by the express authority of the master, but whether the servant has authority to act in respect to the business in which he is engaged when the injury was committed; and for all acts done by the servant in the execution of his employer’s business, within the scope of his employment, the master is liable. Higgins v. Watervliet Turnpike Co., 46 N. Y. 23 ; Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129. In Roitnds' Case the plaintiff was kicked from the platform of a car upon which he was stealing a ride, by a baggageman who had authority to remove him from the train; and by this latter fact the case is distinguished from the one at bar. But in Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 25, the plaintiff was kicked from the train by the conductor or a brakeman, and the case was considered by the couit of appeals upon the assumption that the injury might have been inflicted by the act of either. In the course of his opinion, Judge Andrews said: “ It is conceded that authority in a conductor to remove trespassers, in a lawful manner, is implied, and is incident to his position. We think the same concession must be made in respect to the authority of a brakeman who finds a trespasser on the platform of a car. * * * The implied authority, in such a case, is an inference from the nature of the business, and its actual daily exercise, according to common observation.”

The reasoning of the court upon this question renders its conclusion as applicable to a coal train as a passenger train. The conductor and brakeman are in charge of the train, and the property carried by it. Their duty is not only to properly manage the train, but to guard and protect it; and, very obviously, this duty implies an authority to remove intruders from it. The same rule was applied in Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 2 St. Rep. 249; affirmed in 113 N. Y. 670; 23 St. Rep. 994. It did not appear in that case who it was that did the act which was the cause of the injury, except that he was an employe of the defendant But, because the purpose of the act was the removal of the plaintiff from the car, the court held it was within the scope of the servant’s employment The case of Palmeri v. Man. Railway Co., 133 N. Y. 261; 44 St. Rep. 894, is a recent illustration of the application of the rule which makes the master liable for the unlawful acts of its servants. In that case a ticket agent charged the plaintiff t with having given him a counterfeit coin, and called him a “counterfeiter,” and other names. He demanded another coin in place of the one given him, and detained him in the station while he endeavored to get an officer to arrest him. ’ Because he was acting for his employer, and endeavoring to recover his property, the master was held liable for his acts. The brakeman in this case, if the plaintiff’s story was true, was acting for the protection of his master’s property ; and his act in removing the plaintiff was within his implied power, and incident to his position upon the train. We are of the opinion, also, that this question was decided in the case brought by the plaintiff’s father. Lang v. N. Y., L. E. &. W. R. R. Co., 51 Hun, 603; 22 St. Rep. 110; affirmed, 123 N. Y. 656; 33 St. Rep. 1030. In Judge Barnard’s opinion, he says, “ The brakeman was engaged in the master’s business, and acting within the scope of the authority.” An examination of the printed case and the points of counsel show that the point was fairly presented upon the appeal.

It follows that it was erroneous to dismiss the complaint, and the case should have been submitted to the jury. The judgment must be reversed, and a new trial granted, with costs to abide the event. •

All concur.  