Breese v. Trenton Horse R. R. Co., 52 N. J. Law, 250, 5 Am. Neg. Cas. 31, 19 Atl. Rep. 204; Clyne v. Helmes, 61 N. J. Law, 358, 39 Atl. Rep. 767; Marples v. Standard Oil Co., 71 N. J. Law, 353, 59 Atl. Rep. 32. Obviously the construction which the pleader puts upon the facts can have no effect upon the mind of the court. With the facts before us we ourselves must ascertain their legal force. In the present case, on the facts stated, we think no such duty as is averred by the plaintiff rested upon the defendant company. As is stated by Mestrezat, J., in Sharpley v. Wright, 205 Pa. St. 253, 54 Atl. Rep. 896: "It is well settled that an employer is not responsible for an injury sustained by his employee, caused solely by unsafe premises which are owned and controlled by a third person, and where the employee's services are performed. The reason of the rule is that the employer does not own, use or control the premises," and hence is without power to make any change in their condition. In Channon v. Sanford Co., 70 Conn. 573, 40 Atl. Rep. 462, 41 L. R. A. 200, 66 Am. St. Rep. 133, it is said that "the general rule requiring the master to use reasonable care to provide a reasonably safe place for the servant to work in, is not ordinarily applicable to cases where the master neither has nor assumes possession, use or control, legal or actual, of the premises where the servant may be at work. The general rule is based upon such possession, use and control by the master of the premises where he puts his servant at work for him; and, speaking generally, his duty to use due care to make and keep such place reasonably safe flows from and is measured by such possession, use and control." To the same effect is Hughes v. Gaslight Co., 168 Mass. 395, 47 N. E. Rep. 125. The principle underlying these and like decisions is that the employer cannot be justly charged with negligence as to matters over which he has no control.

The conclusion reached upon the point presented by the first ground of demurrer disposes of the case, and renders unnecessary a consideration of the question whether the existing conditions set out in the declaration created a situation of danger necessarily so obvious as to charge the plaintiff's decedent with the assumption of risks arising therefrom.

The defendant is entitled to judgment on the demurrer.

KIERNAN v. NEW JERSEY ICE CO.

Supreme Court, New Jersey, June, 1906.

MASTER AND SERVANT - ASSAULT BY SERVANT ON BOY ON BACK OF ICE WAGON. —A servant in charge of an ice wagon, without authority to do so, gave permission to a person to take a piece of ice from the wagon, and then, while the person was in the act of taking the piece of ice, the servant assaulted him. Held, that the master was not responsible for the assault.

(Syllabus by the Court.)

ERROR to Circuit Court, Hudson County.

Action by Francis Kiernan against the New Jersey Ice Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Argued November Term, 1905, before the Chief Justice and FORT, PITNEY and REED, JJ.

BRINKERHOFF & FIELDER, for plaintiff in error.

ALEXANDER SIMPSON, for defendant in error.

REED, J. The plaintiff, a boy of fifteen years, was injured by being thrown from an ice wagon belonging to the defendants by a man named Lahey. The wagon was standing in an open yard used by the defendants. Lahey had charge of the horses, which had been detached from the wagon, and was apparently leading them towards the stable. The boy was playing ball with some other boys in some lots across the street from this yard. The ball was batted over into the street. The plaintiff went after the ball, and when in or near the yard, asked Lahey if he could have a piece of ice, and Lahey nodded "Yes." The plaintiff climbed upon the steps of the wagon and got a piece of ice; when Lahey ran to him, grabbed him by the back of the neck and threw him off the wagon. The lad fell against a stump, breaking his arm. This is the testimony of the plaintiff and his witnesses; no witnesses being offered on behalf of the defendant.

We think, from the testimony, the jury could have drawn the conclusion that Lahey was in charge of the ice wagon, and that it was within the scope of his employment to prevent the abstraction of ice, and to remove trespassers from the wagon. From the testimony the jury could have found that Lahey used excessive violence in removing this boy from the wagon. But, by the testimony of the

plaintiff and his witnesses, the boy was invited by Lahey to take ice, and while he was in the act of so doing he was assaulted. There is nothing to show that Lahey had any express or implied authority from the defendant to permit any one to take ice gratuitously from its wagon. Therefore, when Lahey gave such permission, he did it on his own responsibility, and not as a servant of the defendant. A servant in extending an unauthorized invitation to a person to ride upon a dump-cart (Driscoll v. Scanlon, 165 Mass. 348, 15 Am. Neg. Cas. 711n, 43 N. E. Rep. 100, 52 Am. St. Rep. 523; Morris v. Brown, 111 N. Y. 318, 18 N. E. Rep. 722, 7 Am. St. Rep. 751), or to ride upon a hand car (Hoar v. Maine Cent. R. R. Co., 70 Me. 65, 15 Am. Neg. Cas. 339n, 35 Am. Rep. 299), or to a child to ride upon a trolley car (Finley v. Hudson Elec. R'y Co., 64 Hun, 373, 19 N. Y. Supp. 621), or upon a gravel train or freight car (Flower v. Penn. R. R. Co., 69 Pa. St. 210, 12 Am. Neg. Cas. 524, 8 Am. Rep. 251; Keating v. Mich. Cent. R. R. Co., 97 Mich. 154, 56 N. W. Rep. 346, 37 Am. St. Rep. 328; Smith v. Louisville R. R. Co., 124 Ind. 394, 24 N. E. Rep. 753), is not acting within the scope of his authority, and if the invited person is injured, the master is not liable. The only way by which the defendant could be held liable for the injury in the present instance is upon the theory that the invitation. by Lahey is to be entirely disregarded in the transaction. In other words, the theory is this: That Lahey having no authority to extend to the plaintiff a license to take the ice, therefore, when the latter got upon the steps of the wagon he stood as any other trespasser, and Lahey, notwithstanding his invitation, having still the authority to prevent trespassing and remove trespassers, represented the defendant when he threw the plaintiff from the wagon steps. Now, admitting that the jury had sufficient testimony from which to draw the conclusion that Lahey was possessed of authority to protect the ice carried in his wagon, and to keep trespassers from the wagon itself, the question is whether it was within the scope of his authority to create the condition which he was authorized to prevent, and then to represent the company in abolishing those conditions?

It is apparent that, according to the plaintiff's testimony, there would have been no trespass had there been no invitation. The plaintiff was doing the very act which Lahey had licensed him to do, and nothing more. No cause for ejecting the plaintiff arose, except that which Lahey had brought about. If a servant employed to keep a yard or wharf free from trespassers should challenge another to come within the limits of such property and fight, and during or at the close of the fight he should throw his adversary from the prop

erty, injuring him, it would hardly be contended that the servant was acting within the scope of his employment. Although the injured person was a trespasser, and engaged in a breach of the peace upon the property of the master, nevertheless the transaction would obviously be the affair of the servant alone, for the result of which he alone would be responsible. So it seems, in the present case, that, according to the account given by the plaintiff, Lahey enticed the plaintiff to commit the trespass for which he was ejected; that such enticement was for a purpose personal to Lahey; that his subsequent conduct is a part of the same transaction and that the whole transaction cannot be said to have occurred in the execution of any portion of the business of the company devolved upon Lahey. Therefore, for his act, the defendants are not responsible. Judgment should be reversed.

GOODWIN ET UX. V. CENTRAL R. R. OF N. J.

Court of Errors and Appeals, New Jersey, June, 1906.

RAILROADS COLLISION AT CROSSING CONTRIBUTORY NEGLIGENCE — QUESTION OF FACT. — 1. On the trial of an action for personal injuries the testimony in the aspect most favorable to the plaintiff presented this situation: The plaintiff driving a team of mules on the public road toward a railroad crossing with which he was familiar made no observations to see if a train was approaching until he reached a point twenty-eight or thirty feet from the track from which he had an unobscured view up the tracks to a curve some one hundred feet away, and where if he had seen a train approaching he would have stopped his team, and have been in a place of safety, his mules not being liable to take fright by a passing train. Not seeing the train which had not yet rounded the curve the plaintiff drove on, and would have crossed the tracks in safety had not his mules when on the tracks come to a sudden stop owing to a shout from a brakeman on the rear end of a train that was rapidly approaching, running backward, and giving no signals. On being started up again the mules crossed the tracks in safety, and the wagon so far cleared the rails that its hind wheel only was struck.

Held, that the direction of a verdict for the defendant on the ground of contributory negligence was erroneous, the question whether the plaintiff's wagon was struck because of his failure to exercise ordinary caution not being under the circumstances a court question.

SAME SIGNALS POSITIVE AND NEGATIVE TESTIMONY. — 2. Held, also, that in view of the positive testimony of the plaintiff that the statutory signals were not given, corroborated by circumstantial tesVOL. XX 28

timony, that question should have been submitted to the jury, notwithstanding the positive testimony of the defendant's witnesses to the contrary (1).

SAME.

3. Quære, whether the statute respecting the giving of audible signals applies to a train that is running backward.

GUMMERE, C. J., and REED, GREEN, GRAY and DILL, JJ., dissenting. (Syllabus by the Court.)

ERROR to Supreme Court.

Action by Walter M. Goodwin and wife against the Central Railroad of New Jersey. From judgment for defendant, plaintiffs bring error. Reversed.

WILLIAM C. GEBHARDT, for plaintiffs in error.

WALTER H. BACON and GEORGE HOLMES, for defendant in error. GARRISON, J. The plaintiffs, who are husband and wife, sued to recover damages for personal injuries sustained by the latter in a collision between the wagon in which she was seated and a train operated by the defendant. The accident happened at a public crossing and the liability of the defendant was based at the trial upon its alleged failure to give proper signals for this crossing. The trial resulted in the direction of a verdict for the defendant upon the grounds, I, that the testimony that the audible signals were not given, although conflicting, did not raise a jury question, and, 2, that the plaintiffs, upon their own showing, were guilty of contributory negligence.

In respect to each of these grounds we think that the trial court was in error.

1. Upon the first point the testimony viewed in the light most favorable to the plaintiff, as it must be in considering the error now complained of, presented a considerable mass of evidence, both direct and inferential, that the audible signals for the crossing were not given as required by the statute in force at the time this accident. occurred, namely, September, 1902. The defendant's train, which was made up of three passenger coaches, each sixty feet long, and three or four freight cars, was running backward toward the crossing, so that the rear end of the train was some 300 feet nearer to the crossing than was the locomotive. Whether the statutory provision in question applies to a case of this sort is not directly raised by any assignment of error, and has not been argued; but assuming that it does apply and that the continuous blowing of the whistle and ringing of the bell constituted the whole duty of the defendant, as de

I. See, at end of this case. NOTE ON POSItive and Negative TestimONY AND SUBMISSION OF SAME TO JURY.