96 Ark. 558 | Ark. | 1910
(after stating the facts). It is the contention of the plaintiff that he made a contract with the conductor of one of the defendant’s local freight trains to carry him from Bald Knob to Higginson in consideration of services -to be performed by him in assisting the train crew in loading and unloading freight.
The undisputed evidence shows that the conductor did not have express authority to make such contract. Did he have implied authority» to make it? The general rule is that the agent has the implied authority to do all things which are reasonably necessary to effectuate the main purpose for which he is employed.
Mr. Elliott says that the authority of the conductor ordinarily extends to the control of the movements of his trains and to the immediate direction of the movements of the employees engaged in operating the train; and does not extend to making contracts on behalf of the railway company. 1 Elliott on Railroad, § 302.
Continuing, the author says: “As we have said, the conductor has no general authority to make contracts on behalf of the company, but he may in rare cases of necessity, when circumstances demand it, bind the company by such contracts as are clearly necessary to enable him to carry out his prescribed duties. In order that contracts made by him shall be obligatory upon the company, they must be made to enable him to perform the duties required of him, and must not relate to collateral matters nor be outside of the line of duty assigned him. Thus, he may, where other provision has not been made, employ mechanics to repair a break of the cars or machinery which must be repaired before the train can proceed to its destination, and may engage men and teams to render the roadway or bridges secure for the passage of his train, when weakened or partially swept away by unforeseen causes; but in such cases the authority to contract does not exist unless there is necessity for immediate action. It is the necessity which confers the authority, not simply the position of conductor.” 1 Elliott on Railroads, § 302.
In the case of Eaton v. Delaware, etc., Ry. Co., 57 N. Y. 382, it is said: “There is nothing in the business of a conductor which would lead to the conclusion that he had authority to make contracts with persons to act as brakemen. His apparent duties are to carry forward a train after it is organized. The business of organizing it is in its nature wholly distinct. It is, in fact, committed to a train dispatcher.” In Cooper v. Lake Erie, etc., Ry. Co., 136 Ind. 366, 36 N. E. 272, the court said:
“While the conductor and brakeman were in charge of the train, it does not appear that they had any authority to employ assistance in its management. No emergency is shown for the employment of the appellant. * * * No custom, rule or regulation of the appellee company is shown by which the appellant might pay his way by working on the train, assisting the brakeman or other employee. * * * At most, the appellant was upon the train by the sufferance of the conductor and brakeman, who were themselves without authority to receive him. Any dangers to which he might become exposed were wholly at his own risk. The company would be liable only for wilful injury to him.” As bearing upon the question and recognizing this principle, we also cite the following: Church v. Milwaukee & S. P. Ry. Co., 50 Minn. 218; Louisville & N. Ry. Co. v. Ginley, 45 S. W. (Tenn.) 348; Everhart v. Terre Haute & Ind. Rd. Co., 78 Ind. 292; Rhodes v. Georgia Rd. & Banking Co., 84 Ga. 320; Vassor v. Atlantic Coast Line Rd. Co., 142 N. C. 68, 9 Am. & Eng. Ann. Cas. 535.
This principle was recognized and applied by this court in the case of Railroad Company v. Dial, 58 Ark. 318. The court held (quoting syllabus) : “Where a boy 15 years of age, at the request of the conductor of a freight train, undertakes to throw off the brake on a car, and is injured by striking his head on an iron bridge, he can not recover from the railroad company on account of its negligence in failing to warn him of •the danger if the conductor had no express or apparent authority to employ him, and there was no exigency which called for the exercise of implied authority.”
It is not claimed that there was any sudden or unexpected emergency which made it necessary for the proper operation or safety of the train for the conductor to employ the plaintiff. There is no evidence that the injury was wanton or wilful.
Applying the general principles above announced to the facts of this case as testified to by the plaintiff himself, and upon which he bases his right of recovery, it is apparent that he is neither a passenger nor employee. He bases his right to recover wholly upon the contract made with the conductor. He testified that he was performing the services usually performed by brakemen while making the trip. He could not be engaged in the immediate and direct duties of a servant and at the same time be considered a passenger. He was not an employee because the conductor had no authority, express or implied, to make the contract of employment. He was a mere volunteer, and as such assumed the risks of the situation in which he placed himself.
There was an attempt made to prove by the cross examination of the conductor the existence of a custom whereby persons were permitted to ride upon local freight trains in consideration of services performed by them in loading and unloading freight. The conductor says this applied to colored men only. But, in order to malee the company liable, there must be proof, not only of the custom, but that it was actually known by the officials who conducted the affairs of the railway company, or that it was so general and of such long continuance that it must be fairly inferred that it was known and assented to by them. Railway Company v. Bolling, 59 Ark. 395. It might be inferred from the evidence of the conductor in this case that he allowed plaintiff to ride without collecting his fare; that he, the conductor, intended later to collect it; but that he overlooked it, or neglected to collect it, owing to his mind being occupied with other duties. But, whatever would be the rights of a person riding gratuitously in a coach provided for passengers by permission of the conductor without any evidence of his right to do so, such as a pass, that question has passed out of the case; for plaintiff was not injured while on the train; but, according to his own testimony, he had left the train, and was injured while attempting to re-enter it and be carried according to the terms of the contract which we have held the conductor had no authority, either express or implied, to make.
It follows that the court should have directed a verdict for the defendant as requested by it; and for the error in not doing so the judgment must be reversed, and the cause will be dismissed.