133 Ky. 835 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
This action was instituted by the appellant, the administrator of Edward Pope, deceased, to recover damages of the Southern Railway Company in Kentucky for the death of Pope, alleged to have been caused by the negligence of the employes of the railway company. The negligence alleged was that Pope, who was a cinder pit man, engaged in cleaning the ashes and cinders out of engines, was placed by the-employes of the company at the hazardous duty of acting brake-man in switching cars about the yards-of the company without having first given him any. instructions as to these new duties, or any warning as to the dangers attending them, and that, because) of this failure of duty on the part of appellant’s employes, while- coupling an engine to a car he was1 caught between the bumpers and instantly crushed’ to death. The railway company denied all the material allegations of the petition, and pleaded contributory negligence on the part of Pope. These affirmative allegations having been controverted by reply,, the issues were completed. A trial by jury resulted! in a verdict in favor of the plaintiff in the sum of $3,000; and. of the judgment based upon this verdict the railway company now complains.
The crucial question upon which this case turns, as we see it, is the authority of William Fisher to direct
. Fisher, Graham Board,, and Edward Pope, all three young negro men, were employed as cinder pit men in the yards of the appellant company. Their duty! was to scrape out the ashes and cinders from the fire boxes of the engines into a pit prepared for that purpose. In addition to these duties they were called on, when the helper of the engine hostler was absent, to assist the hostler in the capacity of switchmen on brakemen. On the day Pope was injured William! Fisher had been directed by Edward Wolf, who was acting hostler of the yard engine, to assist him as hostler. There was a car loaded with lumber in the yard, which Harvey Rhodes, the general foreman of the yard, desired to have moved from the track upon which it was standing onto another track in the yard. Rhodes said to Edward Wolf, who was in the engine, that he wanted the car moved. At this time Fisher was standing on the ground. Shortly after-wards Wolf, without obeying the orders given him by Rhodes, left the engine and went to a different part of the yard in order to look after an incoming train. When Wolf left Fisher seems to have taken possession of the engine, and called Pope, who wag at the cinder pit, 'to come over -and act as his helper, telling him that Mr. Rhodes said that he (Pope) must do this. Thereupon Pope- left the- cinder pit, and acted as helper, or brakeman. The engine was propelled along the track to the car that was to be moved. Pope then adjusted the coupler, and gave Fisher the signal to back down and couple. This was done, the engine being moved quite slowly, but for some reason unex
Fisher, as said before, was himself a cinder pit man, being what is called by the witnesses “iil'e knocker.” He had been acting as hostler’s helper, but there is nothing in the record to show that he was authorized by any one to act himself as hostler or engineer. Edward Wolf was acting in this capacity, and he had directed Fisher to assist him as helper, but when Wolf left the engine to attend to other duties in a different part of the yard, there is no evidence whatever that he, or any one else in authority, authorized Fisher to take charge of the engine or to operate it. It is true both Fisher and Graham Board
No argument is necessary to show that it requires some skill to move an engine about the yards of a railroad company, and to switch cars from one track to another. To do this the corporation has skilled men called “hostlers,” and, while the hostler might be clothed with authority to order cinder pit men to assist him as helpers, it would not follow that the
In the case of Hatfield v. Adams, 123 Ky. 428, 96 S. W. 583, 29 R. 880, this court, speaking through Judge Settle, upon the principle we are now discussing, said: “So, to hold the master liable for an injury to one employe caused ’by the negligence of another, it must be made -to appear that the injury was received in the performance of a service for the master within the scope of the employment of the person injured, and that, in requiring that particular service, ihe servant through whose negligence the injury resulted had authority to represent the master, and by ■ reason thereof was the superior of the person injured. Otherwise, in the performance of such service the negligent servant and one injured must be -regarded as fellow servants, or the latter as a mere volunteer in doing an act not required by his employment.” The case of Mitchell-Tranter Co. v. Ehmett, 65 S. W. 835, 23 R. 1788, 55 L. R. A. 710, involved a question nearly akin to the one at bar. Ehmett, an employe of the corporation, wias hurt by going upon the roof of 'the building in which the business wa-s carried on. He claimed that he hia,d been sent upon a dangerous errand without being warned of 'the danger involved therein, and he testified that he went on the
Applying these principles to the case at bar, it is obvious that the plaintiff failed to make out a cause of action for damages. Fisher, being himself without authority to act as hostler, could not issue orders to Pope to act as helper. If Pope chose to obey these unauthorized orders, he did so at his peril, and assumed all the risk involved in the labor which he voluntarily undertook. There is no evidence in the case that any person in authority knew that Fisher had taken possession of the engine, or that Pope had been installed as helper. Certainly a mere usurper upon the engine was not clothed with the authority of an engine hostler. If authority could be thus assumed, it is obvious that the company would be at the mercy of every wrongful intruder. Engine hostlers are supposed to be men of experience and prudence, and they are, therefore, authorized to call inexperienced men to aid them in their duties. In thus assisting the hostler the inexperienced employe is acting under the protection of his personal supervision, and would doubtless receive from his superior all the instruction
In conclusion, we are of opinion that Fisher had no authority to take possession of the engine and operate it as hostler; that in doing so he was acting in direct disobedience of a rule of the company; that he had no authority to call on Pope to assist him; that, if he told Pope that Rhodes directed that this be done, he stated what was untrue, and that Pope obeyed him at his own peril. It follows from this that the court should have sustained the motion of the defendant at the close of plaintiff’s testimony to give a peremptory instruction to the jury to find for it.
For this reason, the judgment is reversed for further proceedings consistent herewith.