On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- Justice Oliphant. The opinion of the court was delivered by Weintraub, J.
Defendant, Pennsylvania Railroad Company, appealed to the Appellate Division from a judgment against it in the sum of $25,000 entered upon a jury verdict. We certified the appeal on our own motion. The judgment also ran against defendant's employee, Kennedy, who, however, did not appeal.
The action with respect to the railroad was grounded upon the Federal Employers' Liability Act, 45 U.S.C.A., sec. 51, which provides that a railroad engaged in interstate commerce shall be liable for injury to or death of its employees "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier."
The litigation arose out of an assault and battery by Kennedy upon plaintiff. The complaint pursued two theories. One was that defendant continued to employ Kennedy despite knowledge of his dangerous character. The trial court resolved this charge in defendant's favor at the close of plaintiff's case. The other approach, upon which plaintiff prevailed, was that Kennedy's conduct constituted negligence for which defendant was chargeable under respondeat superior.
As the statute has been construed, with binding effect upon us, Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949), "negligence" embraces an assault and battery, and the employer must respond if it was committed by an employee in the scope of his employment with the purpose of furthering the employer's business. Jamison v. Encarnacion, 281 U.S. 635, 50 S. Ct. 440, 74 L. Ed. 1082 (1930); Alpha Steamship Corp. v. Cain, 281 U.S. 642, 50 S. Ct. 443, 74 L. Ed. 1086 (1930); Nelson v. American-West African Line, Inc., 86 F.2d 730 (2 d Cir. 1936), certiorari denied 300 U.S. 665, 57 S. Ct. 509, 81 L. Ed. 873 (1937); Smith v. Lehigh Valley R. Co., 174 F.2d 592 (2 d Cir. 1949); Jester v. Southern Ry. Co., 204 S.C. 395, 29 S.E. 2 d 768, 156 A.L.R. 632 (Sup. Ct. 1944), certiorari denied 323 U.S. 716, 65 S. Ct. 44, 89 L. Ed. 576 (1944); Annotation, 33 A.L.R. 2 d 1295 (1954).
Defendant urges it was error to send the case to the jury and to deny a motion for a new trial.
Defendant insists the testimony will reasonably admit of the single conclusion that Kennedy's attack was motivated solely by personal animosity and hence defendant should not be held. Davis v. Green, 260 U.S. 349, 43 S. Ct. 123, 67 L. Ed. 299 (1922). In our view, however, the evidence abundantly supports a finding that Kennedy committed the tort in the discharge of his duties and with the purpose of furthering his employer's business under orders as he understood them, albeit that this purpose may have been concurrently attended by a desire to retaliate for personal pique.
The attack occurred on November 4, 1953. On that day, Kennedy was a passenger conductor in charge of a train travelling from New York City to Trenton, N.J., with instructions, as he testified, to proceed "deadhead" from New Brunswick to Trenton. He understood defendant's regulation to mean that all passengers had to alight at New Brunswick, and that employees of the road likewise had to leave
at that stop unless expressly authorized to proceed "deadhead" beyond that point. As indicative of his understanding of the regulation, Kennedy said he directed a member of his crew whose duty ended at New Brunswick to leave the train at that station, notwithstanding the employee lived in Trenton.
Plaintiff had boarded the train at Elizabeth as a special duty conductor under orders from the trainmaster, who had overall charge, to observe for violations of regulations. Plaintiff, in fact, was authorized to continue to Trenton. Kennedy, however, testified he knew plaintiff as a passenger conductor, although he also knew plaintiff at times served as the trainmaster's representative. According to plaintiff, he did serve as a passenger conductor at times, although his role as special duty conductor was the usual one. Plaintiff recalled only three prior occasions when he served as a special duty conductor on a train on which Kennedy worked and one occasion when he and Kennedy worked together as conductors.
Plaintiff said that when the train reached New Brunswick Kennedy announced "all passengers off, New Brunswick is the last stop," and asked plaintiff where he was going, to which plaintiff replied that he represented the trainmaster and had orders to go to Trenton on that train, and on demand exhibited his transportation pass; that Kennedy said the pass did not evidence the claimed authorization and insisted plaintiff get off, to which plaintiff asserted his intent to remain. Kennedy's version was quite different and was supported by members of his crew, Grady and Saams. Kennedy denied plaintiff revealed he was riding as the trainmaster's representative or showed any pass, and said that when he asked plaintiff to leave he "replied to me in an ...