TEXAS & P. RY. CO. v. WILLIAMS, 62 F. 440

LOCKE, District Judge (after stating the facts). There is no doubt about the law, contended for in this case, that, if the servant of the defendant in the court below (plaintiff in error) committed an assault while acting within the scope of his employment, the company is liable, but, if not so acting, it is not. Railroad Co. v. Hanning, 15 Wall. 649; Railroad Co. v. Derby, 14 How. 468.

The difficulty is in making application of such principle to the facts as proven, and the only question for our examination is whether such facts raised a question as to whether or not he was so acting sufficient to submit to the jury. Where there is such question, it is one of fact, and should be so submitted (Redding v. Railroad Co., 3 S. C. 1); but here the trial court did not consider the testimony justified such submission.

The position of the conductor made it his duty to collect the fare from those he found on the train without tickets, passes, or recognized right to ride, and in doing this, or attempting to do this, or in meeting any exigency or emergency naturally and necessarily growing out of this duty, his conduct, or the course he pursued in performing it, Avould be within the scope of his employment.

The testimony here shows that he approached Williams for his fare, but was informed that he was being passed by the road master, but, upon being told by that party that he had not given Williáms permission to ride, he went back to Williams, and again demanded his fare, and, in doing this, he admits that he may have used strong language, may have sworn, and said that he was a “damned lie.” ' How far this was proven by the testimony of the plaintiff, which was before the eourt, the record does not disclose, and we can only determine what preceded the assault by the admission of Nicely himself.

He was at that time acting within the scope of his employment, and when his abuse was answered by something which implied the same insult he had been heaping upon Williams, and which had naturally been drawn out by his own language and conduct, we do not consider that it can be properly claimed that he immediately abandoned his employment as conductor, and commenced an attack solely in his personal capacity.

If, as is claimed, he was resenting a fancied insult as a man, it plainly appears from his own testimony that it was one which he had provoked as conductor, and we consider that such character should reasonably be held to cover the whole transaction, and that the entire evidence, when properly considered, cannot reasonably raise a question whether he was not acting beyond the scope of his employment, which should have been submitted to the jury.

In instructing the jury that, if they found that the conductor alarmed the plaintiff to such an extent that lie jumped off the car, they should find for the plaintiff, although the allegations of the petition were that he was knocked and kicked from the train, we consider that the judge charged upon the evidence before him, and that the variance between allegata and probata was immaterial. It was not such as could mislead or surprise the adverse party. McClelland v. Smith, 3 Tex. 210; May v. Pollard, 28 Tex. 677; and Wiebusch v. Taylor, 64 Tex. 53.

Forcing the plaintiff off the train in a wrongful manner was the gravamen of the complaint, and, whether it were done with the hand, the foot, or threats of bodily injury, the effect was the same. The judgment of the circuit court is therefore affirmed, with costs.