The opinion
DISSENTING- OPINION.
WOODSON, J.
It is conceded by all parties to this snit, in both oral arguments and printed briefs, that the plaintiff was not a passenger upon the train of defendant at the time of his injury, but was a trespasser pure and simple. In fact, that was the theory upon which the case was tried below, and the circuit court so instructed the jury. Therefore, the appellant owed him no duty as a passenger nor did its agents and servants in charge of the train.
The respondent’s evidence tended to show, and if true, he was a trespasser upon the top of appellant’s train, and when it reached Turney, he was seated on the top of the car, with his feet hanging over the side; that at that time the conductor of the train climbed hp on the top of the car, approached respondent, and with a vile epithet, inquired what' he was doing there, and without further ado, violently kicked him off of the top of the car.
I am firmly and unalterably of the opinion that those facts, even conceded to be true, do not render the appellant liable for the injuries thereby inflicted upon the respondent; and my reason for so holding is that the conductor was not acting within the scope of his employment, and therefore the doctrine of respondeat superior does not apply.
And with all due respect for the opinion of my learned associate, I am firmly of the opinion that none of the cases cited in the majority opinion or in briefs of respondent so hold.
The case of Garretzen v. Duenckel, 50 Mo; 104,' the case upon which all the'others are based, while properly decided on the facts of that case, has no' earthly application to the facts of the cáse at bar.
*464 Suppose in that case, instead of Brewer, the clerk in the gun store, who in violation of his principal’s orders, while showing the rifle to the customer, loaded it,, and while so doing, accidentally discharged the same and shot G-arretzen, the plaintiff therein, he had, while-showing it to the customer, observed Garretzen passing on the street, had loaded it, stepped to the doorr and with a vile epithet had shot him down, would it be supposed the court in that ease would have held that. Duenckel, the principal, was liable for the injuries s» inflicted? I apprehend not; and I dare say that there is not a case to be found in the'books which so holds,, but there are scores of them holding to the contrary..
Brewer, in that case, would have been a criminal and Duenckel would not have been responsible for the shooting. So in the case at bar, if Drake, the conductor, assaulted respondent in the manner and under the conditions the respondent claims he did, then he was not acting within the scope of his authority, but his acts were those of a criminal and he and not the railroad company should be punished therefor. [Jackson v. St. Louis, Iron Mountain & Southern R. R. Co.,. 87 Mo. 422, 1 . c. 430; Stringer v. Missouri Pacific Ry. Co., 96 Mo. 1 . c. 300; Farber v. Missouri Pacific Ry. Co., 116 Mo. 1 . c. 93; Walker v. Hannibal & St. Joseph Ry. Co., 121 Mo. 575, 1 . c. 584.]
Moreover, it should be borne in mind that freight trains are not generally designated or used for the transportation of passengers, but are used in the transportation of dumb brutes and inanimate objects, and not human beings, and under those conditions it cannot and should not be presumed that Drake, the conductor, was acting, within the scope of his employment,, when he kicked the respondent from the car, especially when, as we all know, it is not only physically possible, but it frequently occurs that an employee like any other human being, while performing his ordinary duties, steps aside momentarily therefrom, and com *465 mits some of tbe most heinous crimes, which were never dreamed of by the principal when he employed him, much less authorized or anticipated that he would commit such an act.
So, if as in the Jackson case, supra, the.railroad company was not responsible for the unlawful act of-the conductor in accepting a passenger against his will, then how much stronger is the reason for holding that the appellant in this case is not responsible for the unlawful act of Drake in kicking respondent from the train, who was not a passenger, and especially where Drake had no authority whatever- to represent the. appellant in the transportation of passengers.
I, therefore, dissent from the majority opinion.