Agency, Scope of employment.
If a porter in the employ of an express company at a railroad station, who in the course of his duty is carrying a loaded revolver in a holster, when he is resting at the stand of a bootblack is asked by one of two bootblacks there whether a cartridge which that bootblack has in his possession will fit his revolver, and thereupon the porter draws the revolver from the holster and as he does so the revolver goes off and the other bootblack is shot in the leg, the injured bootblack cannot maintain an action against the express company employing the porter for his injuries thus sustained, because there is no evidence for the jury that the porter in drawing the revolver from the holster was acting in the course of his employment.
LORING, J.
The count on which the plaintiff went to trial was a count alleging that he was shot by one O'Brien through the carelessness and negligence of O'Brien in handling a revolver in the course of his employment as a servant of the defendant. The evidence went no further than to warrant the jury in finding that a third person asked O'Brien to see whether a cartridge which he had picked up would fit the revolver O'Brien was carrying in a holster through this belt in the course of his employment as the defendant's servant; that thereupon O'Brien drew the revolver from the holster and that as he did so the revolver went off and the plaintiff was shot in the leg. On this evidence the jury were not warranted in finding that in drawing the revolver from the holster O'Brien was acting in the course of his employment as a servant of the defendant.
In accordance with the terms of the report the entry must be
Judgment for the defendant.