
    Biddle, a Minor, v. The New York Central Rd. Co.
    (Decided May 19, 1930.)
    
      Mr. John F. McCrystal, for plaintiff in error.
    
      Messrs. King, Ramsey S Flynn, for defendant in error.
   Richards, J.

The plaintiff, Arthur Biddle, a minor about twelve years of age, was struck on the head June 23, 1927, in the' yard of the defendant company by a heavy broom thrown as a spear by an employee of the company, and brought this action to recover damages for the resulting injury. At the close of the evidence offered on behalf of the plaintiff the trial judge directed a verdict for the defendant company, on which judgment was rendered.

The trial judge held that there was no evidence tending to show that the employee, in throwing the broom, was acting within the scope of his employment, and there is nothing for the consideration of this court except that question.

The employee was a member of a bridge gang employed by the company in the repair of a bridge located a short distance east of Sandusky. At the close of work for the day, the employees were taken back to the yard of the company in the city of Sandusky in cars assigned for the use of the men, consisting of a sleeping car, dining car, tool car, blacksmith car and loafing car. After the men had their supper in the dining car, they, or some of them, were accustomed to spend their time in or around the loafing car, and perhaps. in the other cars, although-ihan oft duty. After supper on the occasion in-q.uestion. several bovs. m^^Oh¡jpMBiC..6amü^^M.yB£d„QfJB.„cojEnpany and were playing..ab.Qut...-a .pile of ties and other property of the company, and apparently shooting some firecrackers.. The foreman was absent, and the boys were requested by an employee named Shoemaker to desist, or to go away, and this they failed to do. Shoemaker, who was standing .in the door of the loafing car, ten or fifteen feet from the plaintiff, who was on a pileFofJiej^themuPQ^ and threw it at the plaintiff; the broom striking him and causing injuries of which complaint is made. The tOUl"^caf^onbairiedr*tobIs^" some oF which belonged to the workmen and some to the company, and also contained gas tanks, air tanks, air hose, gasoline, coal oil and other property of the company, and this property was all near where the boys were playing and exploding firecrackers.

^Jt is well settled that a master is not liable for the acts of his servant, even if performed during the existence of the employment, unless the servant was acting within the scope of his employment, and it is insisted in this’case that, the employment on the bridge having been concluded for the day, the servant was no longer within the scope of his employment.^ Clearly this contention must be sustained, unless the employee who threw the broom was, in so doing, acting within the scope of his employment in, seeking to protect the property of his employer. Under certain circumstances the duty of the employee to protect the property of his master may be inferred. West Jersey & Seashore Rd. Co. v. Welsh, 62 N. J. Law, 655, 42 A., 736, 72 Am. St. Rep., 659; McDermott v. American Brewing Co., 105 La., 124, 29 So., 498, 52 L. R. A., 684, 83 Am. St. Rep., 225; Brown v. Boston Ice Co., 178 Mass., 108, 59 N. E., 644, 86 Am. St. Rep., 469.

Certainly the liability of the employer for the act of the employee does not attach unless the relation existed at the time of the injury, and with respect to the particular transaction causing the injury. Where, under all the circumstances disclosed, controversy arises whether the servant was acting within the scope of his employment, the question must properly be submitted to the jury to ascertain that fact.

3 Cooley on Torts (4th Ed.), Section 393, states the ’test of liability as follows: “The test of the master’s responsibility is not the motive of the servant, Jbut whether that which he did was something his employment contemplated, and something which, if he should clo it lawfully, he might do in the employer’s name.”

It is quite true that ordinarily an act committed by a servant when he is off duty, as at the noon hour, or after the day’s work is done, is not within the scope of his employment and the master is not liable therefor. But if the facts show that, although the day’s work is done, the employee still had a duty to perform in the protection of his master’s property, and if it is shown that in the performance of the act which caused the injury he was acting within the line of that duty, the master would be liable.

Rule L on page 11 of the Book of Rules of the defendant company was introduced in evidence, and reads as follows: “In case of danger to the railroad property, employes must unite to protect it. ”

This is a very important rule as applied to this case, and in view of its existence, and the facts and circumstances at the time the employee threw the broom, including the inflammable property of the company located near by, this court is of the opinion that there was sufficient evidence to require that the case should be submitted to the jury.

For the reasons given the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Williams and Lloyd, JJ., concur.  