vant in preventing a trespasser from getting on the train. Quite a number of cases may be found in which this court, applying the doctrine last announced, held the master liable for injuries wrongfully or negligently inflicted by the servant in ejecting persons from trains. Among these is the case of Smith, By, et al. v. Louisville & Nashville R. R. Co., 95 Ky., 11, in which the plaintiff, an infant, was so injured. In the opinion it is said :

"The company is liable if the servant in the exercise of his authority, within the general scope of his employment and in the line of his duty, uses unnecessary force, or uses it under circumstances or at a time when the consequences ordinarily would be seriously injurious to the person ejected." I. C. R. R. Co. v. West, 22 R., 1387.

Again in Thurman v. L. & N. R. R. Co., 17 R., 1343, we held that although a boy riding on the truss rods under a freight car was a trespasser, the railroad company was liable for injuries received by him while thus riding, if they resulted from his being pushed off by one of the trainmen at a time when it endangered his life, or rendered it probable that he would be injured; and as it was evident from the proof in the case that if violence was offered at all it was at such a time, the only question to be submitted to the jury was whether the trainmen did push the boy off. Williams' Admr. v. Southern Ry. Co., 24 R., 2214.

It will, however, be found that in all these cases the persons injured were upon or being ejected from the train, but in the case at bar appellee's injuries were not so received. He had been a trespasser upon the train before receiving his injuries, but at the time the assault and battery were committed upon him by appellant's servants, if they were committed, he was not upon the rain, or attempting to get thereon, and when they inflicted upon him the punishment complained of, the train crew were not engaged in appellant's service or in the apparent scope of their employment. As said in the case. of Winnegar's Admr. v. Central Passenger Ry. Co., 85 Ky., 552:

"The general doctrine with reference to master and servant, employer and employe, is, that when the employe committing the injury is not at the time executing the employer's business or not acting within the scope of his employment, the employer is not responsible. If one driving the cars for the corporation should leave the car

and beat or abuse one on the sidewalk, the company would not be responsible. Such an assault could not be said to have been authorized by the company, or part of the driver's employment, nor can it be said that it was done in the course of the employment." Furber v. Missouri Pacific Ry., 20 L. R. A., 354.

In the case of L. & N. R. R. Co. v. Routt, 76 S. W., 513, the plaintiff while standing near a railroad track was struck by a lump of coal thrown by the fireman on one of the defendant's locomotives and injured. In declaring the defendant not liable the court said:

"The evidence shows conclusively that if the injury was done by a servant of appellant, such servant was not at that time acting within the scope of his employment. On the contrary it shows that the servant, purposely and maliciously threw the coal at appellee with the design to injure him, and not from any purpose of protecting the master's property, or otherwise furthering the master's interests. It is difficult to imagine a case where the facts more clearly show that the servant was acting on his own behalf and in no sense for his master."

In Gilliam v. South & N. A. R. Co., 70 Ala., 268, the facts presented by the record were strikingly similar to those of the instant case. In that case the conductor of a railway train stopped his train and, pistol in hand, pursued a boy into his father's house, seized the boy and carried him off on the train. Upon these facts it was held that the railway company was not liable unless it authorized or ratified the conductor's acts. N. O. J. & G. N. R. Co. v. Harrison, 48 Miss., 112; Davis v. Houghtelin. 14 L. R. A., 737.

In Machem on Agency, section 741, we find this statenent with respect to the doctrine under consideration:

"The doctrine of the earlier cases was that the master was not liable for the willful, wrongful act of his servant, but the better and more modern rule clearly is, that the mere nature of the act is not the only criterion, but that the most important test is whether the act was done in the course of the employment."

In I. C. R. R. Co. v. Ross, 31 Ill. App., 170, it was held that a railroad company was not liable for an assault committed by its flagman stationed at a highway crossing, where he went outside of the limits of a highway and indulged in an altercation upon the company's right of way from which the assault resulted. Holler v. Ross,

59 L. R. A., 143; Cochran v. C. & M. R. Co., 56 Fed. Rep., 1014; Best v. C. & O. Ry. Co., 14 S. E., 234; Dougherty v. Chicago, M. & St. P. Ry. Co., 114 N. W., 904.

Counsel for appellee relies with apparent confidence upon the case of Robards v. P. Bannon Sewer Pipe Co., 130 Ky., 380; but we are unable to see that the conclusion reached by the court in that case militates in any sense against that reached by us in the case at bar. In that case the only question for decision was whether the petition, to which a demurrer had been filed, stated a cause of action. It was, therein, alleged that a switchman employed by the defendant as a night guard at its brick manufacturing establishment wrongfully and negligently shot and wounded the plaintiff as he approached the property, mistaking him for a burglar or other wrongdoer. It was held on appeal that the petition stated a cause of action and if its averments were established by proof, the master would be liable for the injury inflicted; but such liability was based upon the fact that the watchman, according to the averments of the petition, was by the terms of his employment not only vested with full discretion as to the means to be used in protecting the employer's property, but was expressly authorized to use fire arms in doing so. Therefore, in shooting and wounding the plaintiff, the watchman acted in the exercise of a discretion with which he was clothed and within the scope of his employment, for which reason the master was liable for his act, which was an abuse of discretion, whether committed willfully, negligently or by mistake.

In the case at bar the injuries inflicted upon the appellee resulted from the unauthorized and willful acts of the brakeman, Blair, and perhaps other members of the train crew who followed appellee to where he had fled away from the train, and were inflicted under circumstances which showed that he was not even a trespasser at the time. The acts, therefore, of the trainmen, were not committed for the protection of appellant's property, or in the performance of any duty which they owed it. In other words, such acts were in no view of the case within the scope of the trainmen's employment.

Therefore, in the light of the facts furnished by the record and the authorities referred to, we are strained to hold that their acts and conduct imposed no liability upon appellant, and this being so, it was clearly entitled to the peremptory instruction asked on the trial.

Whether the evidence appearing in the record in this case would authorize a recovery against the trainmen, it would not be proper for us to say here.

The above conclusion makes it unnecessary for us to pass on the instructions complained of further than to say, they should not have been given, as appellant was entitled to a peremptory instruction directing the jury to find for it. If appellee had sued the members of the train crew he would have been entitled to have the case go to the jury upon his evidence, but the evidence did not warrant the submission of this case to the jury except for the purpose of directing the return of a verdict for appellant.

For the reasons indicated the judgment is reversed for a new trial and proceedings consistent with the opinjon.

Whole court sitting.

York, et al. v. Hogg.

(Decided March 10, 1911.)

Appeal from Perry Circuit Court.

Land-Location of Boundary Line-Identification of Corners -This is an action brought in equity to enjoin a trespass, and turns on the true location of the dividing line between appellant and appellee. Evidence was heard as to how the respective grantees construed the description of the dividing line. Held that while the descriptions are awkwardly expressed they are clear enough not to re'quire the aid of parol evidence to explain further than to identify the points called for as corners. The judgment should have been for the defendant. Reversed, with instructions to enter a judg ment in conformity herewith.

P. T. WHEELER for appellant.

E. E. HOGG, HAZELRIGG & HAZELRIGG for appellee.

OPINION OF THE COURT BY JUDGE O'REAR-Reversing.

This is an action of trespass, and to enjoin trespass. It was brought in equity under the latter feature of the case. The case turns on the true location of the dividing line between the lands of appellant and the boundary owned by appellee. Both claim under a common grantor, who conveyed the two parcels (formerly constituting one body of land) by two separate deeds executed on the same day. The grantor was conveying the entire boundary in

severalty to two of his children, dividing the tract between them. The land lays on Otter Creek, a tributary of the Middle Fork of Kentucky river. Forming the watershed of Otter Creek are two ridges, practically parallel with Otter Creek, the ridges coming together at the head of the tributaries of that stream. Near the junction of two of its tributaries, one called Cow Creek, the other Linden Creek, is a cliff formation in a spur of the mountain ridge, in which is a cavern known as the Dark Rock House. Appellee claims under the deed from Jeremiah Smith to Preston Smith, which thus describes the land conveyed: "Beginning at the crooked rock in a small hollow above the fish trap; thence up the river to Otter Creek; thence up said river to upper corner tree on the bank of said river; thence with said Smith's lines around the ridge opposite the Dark Rock House; thence crossing the said Otter Creek; thence by the Dark Rock House square up to the top of the ridge; thence with the ridge down opposite the crooked rock; thence to the beginning.”

The other deed, under which appellants claim, thus describes the land conveyed by it: "Beginning at the Dark Rock House; thence up the left hand side to the ridge to said Smith's line; the outside line up to the left hand fork; thence up to the fork ridge to the top of the fork ridge, and around to the head of the right hand fork, in all the lands that said Smith holds in that boundary of land down around the ridge opposite to the Dark Rock House; thence to the beginning."

We construe the calls to read as if the reader were in person going around the boundaries from the beginning, so as to learn what was the intention of the grantor in using the descriptive language that he used. So that when in going along the first named ridge a point is reached where the Dark Rock House is at an angle of ninety degrees, that is the point designated as being opposite the Dark Rock House. The line next called for is a straight line (nothing to the contrary appearing) so as io cross Otter Creek, pass by the Dark Rock House, and on up the side of the next parallel ridge to its top, the grantor meaning by "square up the ridge to the top" to run the line in a direct straight course until the top of the ridge was reached. Then the line is turned back toward the beginning point on the river, following the top of the ridge.

Vol. 142-23.