126 Ky. 605 | Ky. Ct. App. | 1907
Seversing.
J. E. Pendleton, while engaged in assisting a switching crew, was killed by being crushed between two cars. • In this action his administrator recovered $5,000 for the destruction of his life. A reversal is asked for several alleged errors committed by the trial court.
To understand fully the questions involved, it will be necessary to relate with some particularity the facts exhibited by the record. Pendleton, who was about 22 years of age, was first employed in November, 1901, by appellant as a yard clerk in its yards at Guthrie, Ky. He remained in this branch of the service until January, 1905, when he was transferred to the car inspector and repair department, and worked there until his death on February 6,1905. His duties as yard clerk and in connection with' the inspector and repair department did not require him to do anything with reference to the switching or shifting of cars in the yard, or to assist in any way the switching crew; and it is conceded that he was never employed as a member of the switch crew. Previous to Ms engagement by appellant, and during the time he • acted as yard clerk and worked in the inspector and repair department, he was endeavoring to fit himself for the position of brakeman, and had quite a desire to get this place. Frequently, while acting as yard clerk and inspector, he assisted the switching crew in their work, throwing switches, giving signals to the engineer, riding the cars — in fact, doing everything that the regular switching crew did. There is evidence that he did this with the knowledge
The real issue in the case, and the one. to which counsel have especially addressed themselves, may be thus stated: For appellee it is said that as Pendleton, with the knowledge and implied consent and approval of the person in charge of the yard, was permitted to frequently perform the duties of a switchman, such as throwing switches, giving signals, and riding cars, the company owed to him the same duty that it did to a regular member of the switching crew. The company’s argument, supported by the testimony introduced by it, is that Pendleton was employed in a different department of its service; that he had no duties to perform in connection with the switching crew; that although he was at times, with the knowledge and apparent consent of the person in charge of the yard, permitted to assist in the performance of these duties, he did so without his approval and in opposition to his direct commands; and hence he is to be treated as a trespasser or volunteer, arid the company cannot be held responsible for his death. It is further urged that his duties as car inspector and repairer demanded his attention and service from 7 a. m. to 6 p. m., and that during these hours he should have remained at the place where the performance of his duties required him to be. It may safely be said, and for the purpose of this
The relation of master and servant is created by ■ contract, either express or implied. It imposes recip
The remaining question to be considered is: Did the fact that he assisted the switching crew, with the knowledge and implied consent of the agent in charge of the yard, have the effect of establishing for the time being the relation of master and servant between him and the person for whom he voluntarily assumed to work? In assisting the switching crew, he did not take the place of any member of that crew. His services were not needed. In helping them he was acting with a view to his own advancement, and endeavoring to become proficient as a brakeman and switchman; and in our opinion the relation of master and servant between Pendleton and appellant could not in this manner and under the facts of this case be created. Certain it is that he had never been employed as a member of the switching crew, nor had he ever been requested or directed by any person in authority to perform any of the duties in connection with it. The foreman of the crew had no authority to bind the company by his consent to or approval of Pendleton’s service. He was under the control of the agent; indeed, strictly speaking, the right of employ
It would be difficult, and we will not attempt, to. lay down any fixed rule, or one of general application, in the settlement of the intricate question as to when persons not employed are to be treated as volunteers or as servants. The conditions and circumstances under which volunteers perform services are so varying that often, although beginning as volunteers, they may become for the time being servants, entitled to protection the same as if regularly employed in the first instance. The .books are full of distinctions and differences, growing out of the facts of each case as they are presented to the court. We may, however, with no sense of uncertainty, say that something more than mere knowledge of, and implied consent to, occasional acts of service, in employments, like the one under consideration, will be required to create the important relation of master and servant. If the relation could be thus established, employers,
In Kentucky Central R. Co. v. Gastineau’s Adm’r, 83 Ky. 119, 7 Ky. Law Rep. 17, Gastineau, a boy between fourteen and fifteen years of age, was run over and killed by a car of the railroad company which he was endeavoring to uncouple from a train while switching in the company’s yard. In a special verdict the jury found that the deceased, when killed, was voluntarily assisting the employes of the road, with their knowledge and consent, in switching ears; that they discovered his peril too late to prevent his death; and that he contributed to it by his presence and offering to uncouple the car. In the course of the opinion the court said: “The deceased could not be regarded as a servant or employe of the company at the time of his death. He did not in a legal sense occupy that relation, and was to it a stranger; and in this light the rights of the parties must be viewed. A railroad company has a right to the exclusive use and occupation of its yard and track, except at crossings or such places as the public are by law authorized to use. Otherwise, it could not properly perform its duties to the public. It is not required' to anticipate the intrusion of others, and one who enters upon them wthout right does so at his peril, and in case of injury cannot recover, unless it was wantonly inflicted after the danger was discovered. * * * Without having in view for the. present the age of the deceased, we remark that the fact that a mere employe knows of the presence of an inter-meddler does not legalize it, and so place him as to the company in its protection that it is bound to
We have examined with care the authorities cited by appellee, but in none of them do we find anything in conflict with the principles heretofore announced. In Illinois Central R. Co. v. Timmons the principal question in the case was whether or not the person who employed Timmons had authority to do so; and this was the "point in issue. In Collins v. C., N. O. & T. P. Ry. Co., 18 S. W. 11, 13 Ky. Law Rep. 670, Collins was injured by the explosion of a gas tank. One of the issues in the case^was whether or not at the time he received the injury he was engaged in the business of the company. After stating the facts, the court said: ‘ ‘ These facts plainly show that in the case of a fire upon appellee’s premises it was the duty of deceased to aid in extinguishing it, and. that in doing so he was acting as its employe. ’ ’ In Cumberland Telephone & Telegraph Co. v. Adams, 91 S. W. 739, 28 Ky. Law Rep. 1265, Adams was in the employment of the company as a groundman. On the evening he was hurt he was sent by the foreman with
Our conclusion is that upon the facts presented by this record appellee was not entitled to recover. He was a mere volunteer, who placed himself in a position of- danger. The railroad company owed him no duty, except to exercise ordinary care to avoid injury to him after his position of peril was discovered; and, as we have seen, there is no claim of negligence in this respect.
Wherefore the judgment is reversed, with directions for a new trial consistent with this opinion.