Bowen v. Illinois Cent. R.

Citations

• 136 F. 306
• 70 L.R.A. 915
• 1905 U.S. App. LEXIS 4458

Syllabus

<p>1. Railroads — Action for Wrongful Death — Tort of Servant.</p> <p>Under section 746, Rev. Code Civ. Proc. S. D., giving to the widow of the deceased a right of action for damage’s against a railroad company for the killing of her husband, by reason of the neglect, carelessness, or unskillfulness of the corporation, its agents, servants, and employes, the cause of action must come strictly within the terms of the statute conferring the right, and cannot be extended to any other subject or embrace any other quality of liability.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, §§ 10', 11,15.]</p> <p>2. Same — Torts of Employes — Scope of Employment.</p> <p>Such loss of life must result from the negligence, carelessness, or unskillfulness of such agent and servant while engaged in and about the work assigned him by the master. Therefore, where the act complained of is the killing of plaintiff’s husband by defendant’s station agent while deceased was signing a receipt book for a package, it cannot be assumed that such package pertained to railroad freight matter, when the evidence showed that the wrongdoer was not only at the time and place acting as agent for an express company, as well as the railroad company, without some evidence warranting the inference that the package pertained to railroad freight, rather than express matter.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, § 16.]</p> <p>3. Same.</p> <p>There is a marked distinction between an act done by the servant during his employment and an act done within the scope of his employment. To bind the master for an injury done by the servant, the servant must at the time be acting for the master within the scope of the duty assigned him.</p> <p>•4. Same.</p> <p>The distinction between the liability of the master for the wrongful acts of the servant in the instance of the relation of carrier and passenger, or hotel keepers and proprietors of theaters and their guests