
    COOK v. SOUTHERN RAILWAY CO.
    (Filed May 28, 1901.)
    1. CARRIERS — Negligence—Personal Injuries' — Master and Servant —Trespassers.
    
    A railroad company is responsible for an injury caused by the wrongful act of its employee, while acting in the general scope of his employment, whether such act is wilful, wanton and malicious, or merely negligent.
    2. CARRIERS — Negligence—Personal Injuries — Master and Servant —Trespassers.
    
    A carrier owes ordinary care to one stealing a ride on its train.
    3. EVIDENCE — Conflicting—Questions for Jury — Trial.
    Where there is a conflict of evidence as to whether a person was injured by jumping from the train, the question should be submitted to the jury.
    ActioN by J. W. Cook against the Southern Railway Company, heard by Judge Thos. J. Shaw and a jury, at April Term, 1900, of the Superior Court of Bukke County. From a judgment for the plaintiff, the defendant appealed.
    
      Avery & Avery, and Avery & Ervin, for the plaintiff.
    
      Geo. F. Bason, and A. B. Andreius, Jr., for the defendant.
   Clark, J.

This case is “on all fours” with Pierce v. B. Go., 124 N. G., 63. It was there humanely held that a “trespasser’s wrongful act in getting on a car does not justify making him get off in a manner calculated to kill or cripple him.” Also, that “a railroad company is responsible for injury caused by the wrongful act of its employee, while acting in the general scope of his employment, whether such act is wilful, wanton and malicious, or merely negligent.” That case cites numerous authorities (pages 93 and 94), for instance, where the carrier was held liable for a servant “employed to sweep up the car” kicking a boy off a moving train, the boy falling under the train and being killed; R. Co. v. Hack, 66 Ill., 238; or a brakeman doing the same, R. R. v. Kelly, 36 Kan., 655; and similar cases. The principle underlying those cases is stated to be “the proximate cause of injury is not the trespasser’s wrongfully getting on the cars, but the tortious manner in which the servant makes him get off.” In that ease (Pierce v. R. Co., supra) the carrier was held liable because a brakeman, either by throwing a lump of coal which frightened or struck a boy who was stealing a ride on the train, or by merely ordering the boy off, made him get off a moving train so that he was killed. In the present case the plaintiff was likewise stealing a ride. Instead of stopping the train to make him get off, or waiting until the train got to a station, it was in evidence that while the train was going four or five miles an hour the flagman, a white man, and a colored brakeman, got off the train, cursed the plaintiff and told him to get off, the brakeman threw a rock and hit the rod under the car on which the plaintiff was resting, and the flagman said “give it to him.” In consequence of this assault and the threats accompanying it the plaintiff was forced to' get off while the car was moving, and in so doing caught his foot and was badly hurt.

The defendant offered evidence denying that the plaintiff was forced to get off by its servants. The testimony was also conflicting whether the plaintiff was injured or not. These matters were therefore properly submtted to- the jury.

As to the second exception, the Court told the jury that as the plaintiff was stealing a ride the defendant owed to him only ordinary care, which it defined to be “such care as a person of ordinary prudence and skill would usually exercise under tbe same or similar circumstances.” That tbis small degree of care must be used towards a trespasser bas been often held. Pickett v. R. Co., 117 N. C., 616; Baker v. R. Co., 118 N. C., 1015; Ellerbee v. R. Co., 118 N. C., 1024. Such modicum of care was not exercised towards tbe plaintiff if, as the jury found, be was forced to get out from under a car running four or five miles an bour by tbe defendant’s servants throwing rocks at bim and cursing bim. It can make no difference to bim whether tbe chief in charge of tbe assault wore tbe epaulet of a conductor, tbe sergeant’s chevron of a flagman, or tbe corporal’s stripes of a brakeman, or, indeed, if tire stone-thrower bad been a lesser servant, a private, perhaps, 'in the carrier heirarchy

It was within the scope of tbe authority of a flagman or brakeman to ej ect or expel tbe plaintiff. Indeed, tbe flagman was asked by defendant’s counsel what be did with tramps when be found them on tbe train. To which be replied that it “depended on where be found them.” But independent . of tbis, tbe flagman and brakeman were there in tbe service of tbe company, and if, as plaintiff testified, by assault and threats they made bim get off a car moving four or five miles an bour, and tbe conductor did not restrain them, tbe company is liable for tbis wrongful act of its servant, if such wrongful act caused injury to tbe plaintiff. Tbe conductor, by bis standing orders and supervision of those under bim, should have prevented tbe assault by them upon tbe plaintiff, even upon a trespasser.

Tbe plaintiff could have been legally ejected by any employee, if done with no more force than was necessary and in a proper manner. It is tbe manner in which tbe plaintiff was ejected, and not tbe rank of tbe servant ejecting bim, of which be bas cause to complain and which malíes tbe master liable. If tbe conductor had thrown the rocks at tbe plaintiff, it would in tbe same sense have been outside tbe scope of bis employment, for tbe conductor bad no more authority to assault tbe plaintiff tban tbe flagman or brakeman bad.

Tbe defendant bas misconceived tbe meaning of Pierce v. Railroad, supra, and cases therein cited. If any servant “acting in tbe general scope of bis employment wrongfully assaulted tbe plaintiff, and sucb wrongful assault caused tbe injury, the defendant is liable,” that is to say, if the conductor while acting as conductor, or tbe flagman or brakeman while on duty as flagman or brakeman, wrongfully assaults one on tbe train, even though sucb person be a trespasser and sucb wrongful assault is tbe proximate cause of tbe injury, tbe carrier is liable. “Acting within tbe general scope of bis employment” means while on duty, and not that the servant was authorized to do sucb acts. Take tbe case of Strother v. Railroad, 123 N. C., 197, where tbe carrier was held liable for an insulting proposition by a conductor, but it was not in the general scope of bis employment to make sucb propositions. This is tbe reasoning and tbe reading of the authorities. If this were not so, tbe carrier would never be liable, for it can not be within tbe authority of any officer or employee to wrongfully assault any one.

The other exceptions do not require discussion.

Affirmed.  