Cincinnati, N. O. & T. P. Co.'s Receiver v. Finnell's Admr.

108 Ky. 135 | Ky. Ct. App. | 1900

Opinion of the court by

JUDGE HOBSON

Reversing.

Appellee filed' this suit to recover for the loss of the life of Ms intestate by reason of the negligence of appellant’s servants. The answer was substantially a traverse of the allegations of the petition, and at the conclusion of appellee’s evidence, as well as on all the evidence, appellant asked1 a peremptory instruction to the jury to find for him, which was refused. The proof showed that appellee's intestate was seventeen years old, 6 feet high, weighed about 140 pounds; that he was going to school at Corinth, Ivy.; that on a number of occasions he had been allowed by the crew of appellant’s local freight train to ride on the train free, and' assist them in loading and unloading freight; that on the day on which he was killed this, train, after arriving at Corinth, unloaded the freight for that point; that in this freight was a box of matches, which took fire, and the conductor took the box out behind the depot to get at the fire and put it out; that while he was doing this the brakemen proceeded to put on the freight that was to be loaded at that point; that, among other things, a piano was to be loaded, and one of the brakemen requested the intestate and another boy, of about the same age, who was with him, a few feet away, to come and help them load the piano on- the train. The piano was rolled to the door of the depot, which was about four feet above- the platform, on the outside. Two of the brakemen got on one side of the piano, and the third brakemam and the two boys on the other side. They rolled the piano out of the door, with the intention of carrying it across the platform to the ca.r; but when it left the door it either slipped from the two brakemen, or the weight was too heavy for them to carry, and fell to the platform, catching the intestate under it, and so mashing him that he died1 from his injuries a few days later. The conductor was not present, and knew nothing of what was going on until after the piano had fallen on the intestate; being out behind the depot, working on the box of matches..

The question in this case is whether the railroad company is responsible for the injury to the boy, received while voluntarily assisting the brakemen in discharging their duties. The rule on this subject is* thus expresed in Wood, Mast. & S. section 455: “A person who voluntarily, and without any employment, undertakes to perform a service for another, stands in the same relation as a servant for the time being, and is regarded as assuming all the risks incident to the business. And this is so even though the service is not wholly voluntary, but is induced by the request of a servant in the defendant’s employ. Thus, where the plaintiff was sent by his master with, a cart to the defendant’s premises to get a load' of cotton, and one of the defendant’s servants requested him to assist in loading it, and while he was doing so he was injured by one of the defendant’s servants negligently letting a bale fall upon him, it was held that an action could mot be maintained; Erie, C. J., pertinently saying: 'This is the case of one volunteering to associate himself with another’s servants in the performance of the defendant’s work, and this without the consent or knowledge even of the defendant.’ Such a person can not stand in a better position than those with whom he associates himself, in respect to the master’s liability.” The same rule is laid down in 1 Shear. & R. Neg., section 182; 1 Lawson, Rights, Rem. & Prac., section 325. In Church v. Railroad Co. (Minn.) 16 L. R. A., 861 (s. c. 52 N. W. 647), the learned editor, citing a large number of authorities, thus well states the rule: “One who has no interest in the performance of the work which he undertakes, whether of his own volition, or at the suggestion of others engaged in the work, and merely to assist them in its performance, is a volunteer, and assumes all the' risks of the employment, and can not recover for injuries ocasioned by an accident happening through the neglect of those with whom he is acting.” There are a large number of cases supporting this rule. Thus, where the fireman' of an engine asked a boy to put in the hose and turn in the water at a station, and the boy was killed while acting for the fireman, under circumstances not entitling the fireman to recover if he had been in the place of the boy, it was held that there could be no recovery. Flower v. Railroad Co., 69 Pa., 210. So, where a boy was hurt in coupling cars. Railroad Co. v. Harrison, 48 Miss., 112. So, where the plaintiff was .assisting the defendant’s servants in delivering a fly wheel, and by their negligence the wheel was allowed to fall on him. Wischam v. Rickards (Pa. Sup.) 20 Atl., 532, (10 L. R. A., 97). So where the plaintiff, at the request of the brakeman, undertook to help them operate the brakes on the train. Mayton v. Railroad Co., 51 Am. Rep., 637 Evarts v. Railway Co. (Minn.) 57 N. W., 459, (22 L. R. A., 663). In notes to these cases numbers of other oases are collected. The same principles were announced by this court, except as to children, too young to understand the danger, in Railroad Co. v. Gustineau’s Adm’r, 83 Ky., 119. Under these authorities, there can be no recovery for the injury to the intestate, unless the fact that he was an infant takes this case out of the rule. He was1 seventeen years of age, and well grown for his years. The danger from the fall of a piano was apparent, and there is nothing in the record to warrant the conclusion that he had not sufficient discretion to be held responsible for the consequences of his acts. The rule is that a minor in entering a service assumes, like the adult, the risks of that service, unless too young to appreciate the peril to which he is exposed. 1 Shear. & R. Neg., section 218. In a note to this section are collected several cases in which this rule was applied to boys fifteen or sixteen years of age. In Kelley v. Asphalt Co., 93 Ky., 363, (20 S. W., 271), this court sustained a peremptory instruction where the boy was in his seventeenth year. The brakemen had no authority to call in others to help them in their work, and while it was tliei-r duty not to place children, or suffer them to remain, in places of peril, where by reason of their inexperience they would reasonably be exposed to injury, and the appellant would be answerable for negligence on the brakeman’s part if they did so, this duty is the same as every one owes to that character of persons on his premises, and the principle has no application where one who is substantially a young man undertakes to help another lift a piano. There is, therefore, nothing in the case to take it out of the general rule exempting the master from liability to one who is injured, while helping his servants at their request, by reason of their negligence; and the court should have instructed the jury to find for appellant.

There was no error in not removing the cause to the federal court, one of the defendants being a resident of this' State. Railroad Co. v. Dixon’s Adm’r (Ky.) 47 S. W., 615. But foi” the reasons indicated the judgment is reversed, and the cause remanded, with directions to grant appellant a new trial, and for further proceedings not inconsistent with this opinion.

Petition for rehearing filed by appellee and overruled