This is an action for damages for personal injuries. There was a trial before the Court and jury, and a verdict and judgment for 'plaintiff for $1,075 and costs, and defendant railroad company has appealed, and assigned errors.
Plaintiff was engaged by several parties at Mt. Pleasant to load potatoes in barrels from wagons into the cars which were placed upon the side tracks. It was necessary, for the more convenient and expeditious loading of the potatoes, to have the cars moved to another point on the side tracks, where the cars could be more readily reached by the wagons. At the request of Bibb, brakeman on the train, plaintiff went on top of a car to assist in placing it at a convenient and proper place, and while he was so engaged the engine struck the car with force and violence, and plaintiff was thrown to the ground and had his foot crushed by the cars running over it. It was customary to require shippers to load the cars upon the side tracks, and the railroad company and employees placed the cars at convenient places for that purpose.
The main and perhaps only question in this case is admirably stated by opposing counsel, and plainly and very pointedly put to the jury in an admirable charge by the Court. The contention of defendant railroad company is, that the company had sufficient crew to place the cars properly, and would have done so, and there was no emergency or necessity for the plaintiff to aid in this work, and, in so
The theory of plaintiff is that it was necessary to replace the cars in another position, and that he and his employers had an interest in having them so placed in order to expedite their own work, and hence- he was not a fellow-servant with company’s employees, but was engaged in his employer’s work and was entitled to recover for the negligent acts of the company’s servants. Upon this point the learned trial Judge gave the following instructions: “The defendant insists that the plaintiff was a volunteer merely; that is, he was voluntarily assisting the brakeman, whose own duty it was to do the work which plaintiff undertook to do. If this is so— that is, .if you find that the plaintiff was a mere volunteer, having no interest, either for himself or his employer, in the work which he was undertaking to do, that is, in assisting brakeman Bibb in his work — -then he could not recover for the negligent acts of any of the agents and servants of the defendant company, unless their conduct was so grossly negligent as to show a wanton, willful, and reckless disregard of his safety. If the plaintiff was, as I have just said, simply assisting Bibb, the brakeman, in doing work which it was Bibb’s duty to perform, then he cannot recover from the defendant for any injury caused by the negligence or misconduct
Defendant relies upon the cases of Mayton v. The Texas & Pacific Ry., 63 Tex., 77; Therman v. Hannibal R. R., 4 A. & E. Rep., 589 ; Everhart v. T. H. (& I. R. R., 4 Am. & Eng. Rep., 599, as holding the general rule that one who volunteers services, or performs them at the request of an employee not authorized to employ him, stands in the same relation to the company as to liability of the company as those with whom he associates himself. Counsel for the railroad concedes that cases may be taken out of this general rule, but insists there must appear a self-interest in the very work to be done, citing Welch v. Maine Gentral R. R., 30 Atlantic Rep., 116 ; also the case of Wisham v. Richards, 20 Atlantic Rep., 533 (136 Penn. State Reps., 109), as illustrating the rule and exceptions.
The contention of plaintiffs is illustrated by the case of Eason v. S. & E. T. R. R. Co., 57 Am. Reps.,
Another case in point is McIntire St. R. Co. v. Bolton, from the Supreme Court of Ohio, reported in 54 Am. Iieps., 803. In that case, a passenger on a street railway was injured. The car which he was upon had got off of the right track, and he was assisting the servants of the road in pushing it back, when he was injured by another car belonging to the same road. In this case, it is not shown that he was requested to assist in what he was doing, nor is it anywhere stated that it was necessary for him thus to assist in order to get it back, or that he would save much time by assisting, or that he was in any haste to pursue his journey. The Court put the case upon the distinct ground that he had an interest in having the car shoved back, in order to facilitate his journey; that what he was doing was
A very carefully considered case is that of O'Donnell v. Maine Central R. Co., 25 Lawyers’ Rep. Annotated, 659. In that case the same arguments urged by counsel for defendant in this case, were pressed on the Court. . It is said in the opinion: “It is undoubtedly true that if one who has no interest in the work to be performed/ a mere bystander, voluntarily assists the servants of another, either with or without the latter’s request, he must do so at his own risk, and the jury were so instructed in this case. But it is equally well settled that one who has an interest in the work to be performed, and for his own convenience, or to facilitate or expedite his own work, assists the servants of another, at their request or with their consent, is not thereby deprived of his right to be protected against the carelessness of the other’s servants. In the former class of cases the master will not . be responsible, in the latter he will be. This distinction is sustained by every text-book to which our attention has been called, and is well sustained by adjudged cases.”
And a little further on, the law is stated thus: “The distinction running through all the cases is this: That where a mere volunteer — that is, one who has no interest in the work — undertakes to assist the servants of another, he does so at his
‘ ‘ But in the present case it is urged by the learned counsel for the railroad company, that the crew in charge of the gravel train had no authority to make such a request or give such consent as will authorize the servants of the consignee to remove or assist in the removal of earth from the cars. We do not think that such a want of authority exists. It seems to us that the persons “ having the charge of freight cars are the very ones to give such consent,
The case of Wischam v. Richards, cited and relied upon by the defendant in this case, is referred to in that opinion as upholding the doctrine herein laid down. The Court says of it: “The recent case of Wischam v. Richards, 136 Pa., 109 (10 L. R. A., 97), cited by defendant’s counsel, is not opposed to it. It sustains it. In that case the plaintiff was hurt while assisting the defendant’s servants in unloading a heavy ñy wheel from the wagon. The Court found, as a matter of fact, that the plaintiff was a mere volunteer, having no interest in the work which he undertook to assist the defendant’s servants in performing, and, consequently, that he had no remedy against their master.”
It is earnestly insisted, however, that the rule of liability cannot exist unless there was a necessity on the part of the railroad to have the services of the plaintiff, and that if the business was that of the railroad, and it had sufficient force to perform it, then the plaintiff must be considered a volunteer and inter-meddler. But none of the cases holding the company liable proceed upon this ground, but upon the more satisfactory one, whether the plaintiff is to be regarded in such cases as expediting and forwarding his own business, or that of the railroad company, either as an accommodation or as a necessary help. In other words, was he engaged in his own business or that of the railroad ? If the former, the
The questions of fact in this case were properly left to the jury — -that is, as to whether plaintiff was a mere volunteer, aiding the brakeman on his invitation, or whether he was acting in his own interest and that of his employers. The question of negligence in the servants of the railroad company was left to the jury, and they were told that in no event could the plaintiff recover unless the railroad company was negligent.
We think the matter was properly submitted to the jury, under a proper charge, and they have found for the plaintiff’s contention, and the judgment of the Court below is affirmed, with costs.