McDaniel v. Highland Avenue & Belt Railroad

CLOPTON, J. In the first count of the complaint, plaintiff sues in the capacity of employé, and in the second, as a passenger. Assuming the facts as testified by himself, he is not entitled to recover under either count. The first avers, that being employed by defendant as switchman, he was injured by the carelessness and negligence of the engineer, and in consequence of defective machinery, while passing from the engine to the platform of the car, for the purpose of alighting to turn the switch, “as was his duty then and there in the line of his employment.” The controlling facts, as far as applicable to this count, are, that he was employed by defendant about November 1st, 1887, as a day-laborer, as fireman and switchman, reporting daily for service, and when not needed for the day was allowed to attend to other business, subject to the call of defendant. That he was not employed on the day of the injury, other than by the conductor as hereinafter stated, is not controverted; to use his own language, he. was “off duty.” On that day, January 31, 1888, he boarded a train of defendant at Lake-View, of his own accord, and, after getting on the train, was ordered by the conductor to turn the switch at Cox’s station, between Lake-View and Birmingham. Both the conductor and the clerk of the superintendent of the company testified, that the former had no authority to employ plaintiff, or any other person; therefore, whether [67] plaintiff was employed, depends upon the implied authority of the conductor. In Ga. Pac. Railway Co. v. Propst, 83 Ala. 518; s. c., 85 Ala. 203, it was ruled that as, in an emergency, discretion and authority to supply the places of disabled and missing servants must reside in some officer or agent of the corporation, and as no one could exercise this power as well, or as prudently, as the conductor in charge of the train, his authority will be implied. But it was also held, that the employment, to bind the company, must come within the scope of his agency, or implied, power; and that an order or direction to do a single act, such as to turn a single switch, will not constitute an employment binding the company. Authority to supplement temporarily the number of servants employed and supplied by the corporation, will not be implied in the absence of some unforeseen or unexpected emergency. There is nothing in the evidence tending to show any necessity to employ plaintiff as a switchman, or that he was brought under the control, or subject to the orders of the conductor, or that he occupied any relation to the company other than that of a passenger. The mere direction to turn the switch was not within the scope of the conductor’s authority, or in the discharge of his duties, and would not have fastened a liability on the defendant, had plaintiff been injured while attempting to obey the order, which was not the case. The circumstances under which plaintiff was injured, were as follows: There being no water in the coach, he went to the engine to get some. In attempting to pass from the tender to the platform of the coach, he grasped the brake, which was loose, and as he did so, the engineer suddenly turned on the air-brakes. The suddenness of the jerk, and turning of the brake, caused him to fall between the engine and the car. He knew that, there being no steps to the engine, it was necessary to pass over the iron railing to enter the coach; the train was on a sharp curve, and approaching the switch at a rapid rate of speed. To say nothing of his going to the engine, where neither necessity nor duty called him, in attempting to return to the coach while the train was in rapid motion on a sharp curve, he negligently, it may be said recklessly, exposed himself to an obvious danger, and in consequence was injured. Under the circumstances, though the engineer may have been negligent in the management of the train, or the company in furnishing defective machinery, plaintiff’s negligence contributing to his injury is a complete defense. Had he remained in the coach, or on the engine, he would not have been injured. The undisputed facts and uncontradicted evidence, free from adverse inferences, establish contributory negligence [68] oil the part of the plaintiff; and the court was justified in giving, on the written request of defendant, the affirmative charge. Affirmed.