Yazoo & Mississippi Valley Railroad v. Kern

McCurroch, C. J. Plaintiff’s intestate, Richard Pinkston, was knocked from the side-ladder of a coal car and killed in the yards of defendant railroad company at Helena, Arkansas. He was working as switchman at the time, and his death was caused by his body striking another car on a sidetrack near the track on which his train of cars was moving-. This action was instituted in the circuit court of Phillips County to recover damages on account of the death of said Pinkston, negligence of servants of said defendant being charged in leaving the car on the sidetrack too close to the switch to allow the free passage of cars on the other track. It was alleged in the complaint that Pinkston was employed by said defendant as one of the switching crew in the yards, and that he was performing his duties as such when the injury occurred. The Louisville, New Orleans and Texas Railroad Company, as owner and lessor of the railroad, was also joined as defendant. The plaintiff recovered damages below, and defendant appealed. Thé answer, among other defenses tendered, denied that Pinkston was employed by either of the defendants, or that he was performing services for either of the defendants when he was killed. The injury occurred-on June 3, 1908. Pinkston had formerly been in the service of the Yazoo- & Mississippi Valley Railroad Company as a member of the switching crew at Plelena, but was discharged on May 15, 1908, in order to reduce the force on account of falling off in business during the summer months. The crew at Helena was ordinarily-composed of three men in addition to the engineer and fireman— the yardmaster and -two switchmen. The yardmaster was foreman of the crew. After Pinkston was discharged, he went to Memphis, and the trainmaster offered him employment there as extra flagman, which he declined. He returned to Helena, and the evidence tends to show that he worked again from time to time as switchman under the direction of the yardmaster, and was so working on the day of the injur)’. It is not shown, however, that any one having authority to employ him knew that he was again at -work. The yardmaster had authority to temporarily employ a switchman in the place of a regularly employed one who became sick or otherwise incapacitated for work, but not to increase the regular force or to employ an extra man. The trainmaster alone had authority to employ men in that service. This is the undisputed evidence on that point. He employed Pinkston and discharged him. The position of yardmaster with respect to the employment of men under his control is the same as that of conductor of a train. His crew is made up by another who is superior in authority, and who employs the men to work under him. His implied authority can be exercised only where an emergency arises that makes it necessary to temporarily employ help in order to carry on the work in hand during the existence of the emergency or until the superior officer or agent can act. St. Louis, I. M. & S. Ry. Co. v. Jones, 96 Ark. 558. It ca«n not be contended, under the circumstances of this case, as disclosed by the undisputed evidence, that any emergency existed which called for the employment of an extra man. Pinkston had just been discharged by the trainmaster in order to reduce the force, but he was soon afterwards put to work again or allowed to work by the yardmaster without the knowledge of the trainmaster. He was not put back on the pay roll, and made no claim for wages, as far as shown by the evidence in the record. For all that appears in the evidence, he was simply working for the yardmaster several days before he was injured. No explanation is given why he did this, but there is evidence to the effect that he did work from time to time under the 'direction of the yardmaster. The company had the right to determine, through its officers, what person should be taken into its service, and what particular agent should be clothed with authority to enter into contracts for service to be performed. It is clear from the undisputed evidence in this case that no one but the trainmaster had express authority to employ men in that branch of the 'service, and there is no evidence which justifies the conclusion that the yardmaster had implied authority to employ Pinkston under the circumstances. Stress is laid on the fact that, according to the testimony, the station agent at Helena had charge of the company’s business at that place, from which apparent authority can be implied to employ men to work in the company’s service. The undisputed testimony shows, however, that the agent exercised no control over -the switching crew, and that the sole authority to employ and discharge, them was vested in the trainmaster. The station agent had neither express nor implied authority to employ them, and to do so was not in the apparent scope of his authority. It follows that, since Pinkston was a mere volunteer, the defendant owed him no duty save the negative one not to injure him after discovering his peril. Railroad Company v. Dial, 58 Ark. 318; St. Louis, I. M. & S. Ry. Co. v. Jones, supra. It is also insisted that, according to the undisputed evidence, Pinkston was guilty of contributor}' negligence which bars recovery of damages; but, as the case is to be reversed on the grounds above stated, we need not pass on other questions argued. The facts of the case were fully developed in the trial, and no useful purpose would be served in remanding the case for a new trial. The judgment is therefore reversed, and the cause dismissed. Hart and Frauenti-iar, JJ., dissent.