Page images
PDF
EPUB

of their size. It would be unfair and unjust to allow a party to claim and hold against his grantor the bed of a lake containing thousands of acres, solely on the ground that he had bought and paid for all the small surrounding fractional tracts, the mere rim."

In my view, there is no difference, in law, in the two cases now under consideration, and a like judgment should be rendered in each. But the judgment in the case of Nye is assented to as the best practical solution under the circumstances.

HUNTING RIGHTS. - Every person has an equal right of taking, for his own use, all creatures fit for food that are wild by nature, so long as he does not injure another in the enjoyment of his rights; but as every person has the right of exclusive dominion over his own lands, no other person or persons can hunt or sport upon his land except by his permission. This rule applies equally to lands covered by water, as well as upland: Sterling v. Jackson, 69 Mich. 488; 13 Am. St. Rep. 405, and particularly note 416-420. CONVEYANCES OF LANDS LYING ADJACENT TO NON-NAVIGABLE WATERS. The grantee of land bounded upon a non-navigable stream takes to the thread of the stream: Fulmer v. Williams, 122 Pa. St. 191; 9 Am. St. Rep. 88; Wil liams v. Buchanan, 1 Ired. 535; 35 Am. Dec. 760, and note; Lowell v. Robinson, 16 Me. 357; 33 Am. Dec. 671; Muller v. Landa, 31 Tex. 265; 98 Ain. Dec. 529; State v. Columbia, 27 S. C. 137; Menasha etc. Co. v. Lawson, 70 Wis. 600. And his title cannot be limited to the edge of the stream, unless there is an expressed intention in the deed to that effect: Paul v. Carver, 26 Pa. St. 223; 67 Am. Dec. 413, and note. But compare Wiggenhorn v. Kountz, 23 Neb. 690; 8 Am. St. Rep. 150; Branham v. Turnpike Co., 1 Lea, 704; 27 Am. Rep. 789, and note. Lands bounded by a pond extend to the margin of the water as existing when the conveyance is made: Bradley v. Rice, 13 Me. 198; 29 Am. Dec. 501; Cook v. McClure, 58 N. Y. 457; 17 Am. Rep. 270. And this rule was applied to a conveyance of land bounded upon a lake: Trustees of Schools v. Schroll, 120 Ill. 509; 60 Am. Rep. 575. But a deed to land bounded by a pond made by an artificial dam, through which the thread of the stream has always been apparent, passes title to the thread of the stream: Phinney v. Watts, 9 Gray, 269; 69 Am. Dec. 288; Lowell v. Robinson, 16 Me. 357; 33 Am. Dec. 671.

LAKES, DEFINITION OF: Trustees of Schools v. Schroll, 120 Ill. 509; 60 Am. Rep. 575. Lakes are not public waters unless navigable: State v. Narrows I. Club, 100 N. C. 477; 6 Am. St. Rep. 618.

TRESPASS CONTINUOUS IN ITS NATURE may be enjoined to prevent a multiplicity of suits and vexatious litigation: Mills v. New Orleans S. Co., 65 Miss. 391; 7 Am. St. Rep. 671, and note.

PITTSBURGH, CINCINNATI, AND ST. LOUIS RAILWAY COMPANY V. SHIELDS.

[47 OHIO STATE, 387.]

MASTER AND SERVANT - RAILROAD'S LIABILITY FOR NEGLIgence of SerVANT. A railroad company is liable for the negligence of its servant in placing and leaving torpedoes, of which he has the custody, on its track at a point where the public, including children, are permitted to pass, notwithstanding such negligent acts of the servant are wanton, reckles, needless, and against the rules of the company.

MASTER AND SERVANT - CUSTODY OF DANGEROUS INSTRUMENT - LIABILITY FOR NEGLIGENCE OF SERVANT. A person having in his custody instruments of danger must keep them with the utmost care, and one charged with such duty cannot devolve it upon his servant, so as to exonerate himself from the consequences of injury caused to others by the negligent manner in which the duty in regard to the custody of such instruments may be performed by such servant.

MASTER AND SERVANT - LIABILITY FOR NEGLIGENCE OF SERVANT. — Whatever the servant is intrusted by the master to do for him must be done with the same care and prudence that would be required of the master acting in that regard for himself. If it is the custody of dangerous instruments, the servant must observe the utmost care. MASTER AND SERVANT-LIABILITY FOR NEGLIGENCE OF SERVANT OUTSIDE

EMPLOYMENT. A servant may depart from his employment without making the master liable for his negligence, and he so departs whenever he goes beyond the scope of his employment and engages in affairs of his

own.

MASTER AND SERVANT LIABILITY FOR NEGLIGENCE OF SERVANT. —A servaut cannot depart from a duty intrusted to him when that duty regards the rights of others in respect to the employment of dangerous instruments by the master in the prosecution of his business, without making the master liable for the consequences of the negligence of the servant; nor is it necessary, to make the master liable, that there should be specific directions as to the particular act. It is sufficient if the general relation of master and servant within the range of such act exists, and that the wrong inflicted was incidental to the discharge of the duty with which the servant was intrusted.

MASTER AND SERVANT LIABILITY FOR NEGLIGENCE OF SERVANT.

- Where

the master has a duty to perform, and intrusts it to his servant, who disregards it to the injury of another, it is immaterial, so far as the liability of the master is concerned, with what motive or for what purpose the servant neglects such duty.

Charles Darlington, for the plaintiff in error.

Foos, Fisher, and Foos, for the defendant in error.

MINSHALL, C. J. The suit below was an action by Shields, a small boy, prosecuted by his next friend, against the Pittsburgh, Cincinnati, and St. Louis Railway Company for an injury caused by the explosion of a torpedo, wantonly and negligently left on its track by one of its servants, at a point

where the children and inhabitants living along the line of the track were daily in the habit of passing with the knowledge and acquiescence of the company. The torpedo, a dangerous instrument, used by the company as a signal in the operation of its road, was picked up by a companion of the plaintiff, carried some distance away, and caused to explode by one of them hitting it. They were ignorant of its character, and at the time trying to satisfy their curiosity about it. The same accident caused the injury for which the original action in Harriman v. Pittsburgh etc. R'y Co., 45 Ohio St. 11, 4 Am. St. Rep. 507, was brought, the judgment in which was reversed by this court for error in sustaining a demurrer to the petition; and the petition in the Harriman case is substantially the same as in this case.

After the decision in the Harriman case, the defendant below filed an answer in this case, the second defense of which, and to which a demurrer was sustained, is as follows: "The defendant, for its second defense, says that it carries upon its trains signal torpedoes to be used in addition to its regular signals when from fog or other cause the other signals cannot be seen or relied upon, and that if said torpedo was placed upon the track, as alleged in said amended petition, by the employees of this defendant (a fact which defendant wholly denies), that then said employees placed the same upon the track at a time and place, in broad daylight, when and where there was no necessity for the use thereof, or of any signals of any kind whatsoever, and that said use was without the knowledge or consent or authority, express or implied, of the defendant; was against and contrary to its rules and regulations, as said employees well knew; and that said torpedo was so used by them outside and beyond the scope of their employment, and in no wise connected with the control, management, or operation of said train of cars or railroad, and was so placed for the accomplishment of an independent and wrongful purpose of their own, in this, to wit: that said employees, or one of them, while said train was taking water at said water-tank, for the purpose of having sport with some lady passengers who were upon said train, took torpedoes from the place where kept on said train, and without the knowledge of said lady passengers, with whom said employees were well acquainted, placed the same upon the iron rails of the track, in front of the wheels of the caboose in which said lady passengers were riding, with the intention to

frighten them by the sudden and unexpected explosion of said torpedoes, which would result with a loud noise by the passage of the caboose over them; when said train started forward, one of said torpedoes failed to explode, and was found as stated in said amended petition."

The sustaining of the demurrer to this defense is assigned. for error. There is also an exception to the ruling of the court in refusing to charge as requested. But this ruling need not be noticed, as it presents simply the same question as is presented by the demurrer to the answer.

It would seem that the question raised by this defense was presented by the demurrer to the petition in the Harriman case, and determined by the decision of this court therein; the fourth proposition of the syllabus being, in substance, that the railroad company was liable for the negligence of its servant in placing and leaving the torpedoes on its track at a point where the public, including children, were permitted to pass, "notwithstanding such negligent acts of the servant were wanton, reckless, and needless."

But the counsel for the plaintiff in error think that it was not, and claim that there is clear error in the case, for the reason that the act of the conductor in placing the torpedoes on the track was a mere caprice of his own, outside of his employment as a servant, and contrary to the rules of the company, and that therefore the company is not liable.

We do not adopt this view, and shall show that the negligence of the conductor in this regard, though wanton and contrary to the rules of the company, occurred within his employment, and is therefore imputable to the company.

The law requires of persons having in their custody instruments of danger, that they should keep them with the utmost care: 1 Hilliard on Torts, 3d ed., 127. "Sometimes," says Pollock, "the term 'consummate care' is used to describe the amount of caution required; but," he says, "it is doubtful whether even this is strong enough. At least, we do not know any English case of this kind (not falling under some recognized head of exception) where unsuccessful diligence on the defendant's part was held to exonerate him ": Pollock on Torts, 407. See also Wharton on Negligence, sec. 851.

And it stands to reason that one charged with a duty of this kind cannot devolve it upon another, so as to exonerate himself from the consequences of injury being caused to others by the negligent manner in which the duty in regard to

the custody of such an instrument may be performed. Speaking of the absolute duty imposed by statute in certain cases, and also of the duties required by common law "of common carriers, of owners of dangerous animals or other things involving, by their nature or position, special risk or harm to neighbors," Pollock observes: "The question is, not by whose hand an unsuccessful attempt was made, whether that of the party himself, of his servant, or of an 'independent contractor,' but whether the duty has been adequately performed or not ": Pollock on Torts, 64.

We in no way limit nor question the soundness of the general rule, which exonerates the master from liability for the acts of his servant done outside of his employment. What has been stated is strictly within the reason and principle of the rule, which is, that whatever the servant is intrusted by the master to do for him must be done with the same care and prudence that would be required of the master, acting in that regard for himself; if it be the custody of dangerous instruments, he must observe the utmost care.

The inability of the master to shift the responsibility connected with the custody of dangerous instruments, employed in his business, from himself to his servants intrusted with their use, is analogous to, and may be said to rest upon, the same principle as that which disenables him from shifting to an independent contractor liability for negligence in the performance of work that necessarily tends to expose others to danger, unless the work is carefully guarded. It seems by the great weight of authority and reason that this cannot be done: See Southern Ohio R. R. Co. v. Morey, 47 Ohio St. 207, and cases there cited; also see Lawrence v. Shipman, 39 Conn. 586, 589, and Cooley on Torts, 2d ed., 644, 646.

And the relation of master and servant and that of employer and independent contractor are, in this regard, treated in one view by Pollock in his work on torts, as will appear from consulting his work, at page 64.

Now, in this case, it must be observed that the duty intrusted by the railway company to the conductor in regard to these torpedoes was, not only to use them as signals with the requisite care and caution, but to observe like care and caution in the custody of them when not in use. The servant's custody of them when not in use was as much a part of his employment as was the use of them as signals when required. In taking them from the place where they were carried when

« PreviousContinue »