Roebuck v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 99 Kan. 544

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Federal Employers’ Liability Act — Railroad Employee Assaulted by Fellow Servant — Liability of Carrier — Negligence. The federal; employers’ liability act provides a remedy only in cases where the employee is killed or injured from a cause incidental to or arising out of railroad employment, and therefore the ordinary rules governing the relation of master and,servant necessarily apply, and the carrier is liable,only where it has been negligent in the performance of some duty imposed upon it as employer.</p> <p>2. Same — Negligence—When Rules of Common Law Govern. In determining what constitutes negligence of 'the carrier in trials under the federal employers’ liability act, the original common-law rules are to be applied, except where those rules are, by the terms of the act, abrogated, qualified, or restricted; and in ease of any conflict between the state and federal courts as to. what constitutes negligence the case is controlled by the common law as interpreted and applied in the federal courts.</p> <p>3. Same — Criminal Assault by Fellow Servant — Scope of Employment — - Liability of Carrier. Under the common law of master and servant, as adopted and enforced by the courts generally, the master is not liable for the willful and criminal assault by one employee upon another, where the assault was not expressly or impliedly authorized or within the scope of the employment. (Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386.)</p> <p>4. Same — Assault Not Committed Within Scope of Employment — Carrier Not Liable. In an action brought under the federal employers’ liability law (Part 1, 35 U. S. Stat. at Large, ch. 149, § 1, p. 65) to recover damages for the death of plaintiff’s husband, a section foreman in defendant’s employ, who was stabbed by a Mexican employed under him, the petition alleged that plaintiff’s intestate notified his superior officers, the roádmaster and the assistant division superintendent, that he could not