Yazoo & Mississippi Valley Railroad v. Stansberry

Smith, T., delivered the opinion of the court. Appellee’s minor son, aged seventeen years, without appellee’s knowledge or consent, desiring to go from the town of Ash-wood to the town of Slaughter and return, applied to the conductor of one of appellant’s mixed trains for permission to-travel thereon, in consideration of his assisting the train crew in loading and unloading freight. To- this the conductor agreed. While rendering such service the boy was injured, without negligence on the part of appellant or its employes. No evidence was introduced by either side tending to show what authority the conductor had to employ assistance in operating his train,, other than the employes furnished him by the railroad company. At the close of the evidence the court peremptorily instructed ‘the jury to find for the plaintiff, leaving to their determination only the amount of damages. Erom a verdict and judgment in favor of appellee, this appeal is taken. The contention of appellee is that the relation of master and’ [833] servant existed between him and Ms son, and that appellant, by employing Ms son, bis servant, without Ms (appellee’s) consent, in an obviously dangerous business, became responsible to the appellee for any injury which his son might sustain while so engaged, and which can be rationally attributed to the undertaking, even though the injury resulted immediately from the negligence or unskillfulness of his son; that the act of the conductor in employing his son was the act of appellant for which appellant is responsible. In this he is fully supported by the decision of the supreme court of Kentucky in Railroad Co. v. Willis, 83 Ky. 57, 4 Am. St. Rep. 124, a case wherein the facts were almost identical with the facts in the case at bar. The primary test to determine appellant’s liability is whether the act of its conductor in employing appelleejs son was within the scope of the conductor’s employment. If not, no liability attaches therefor. All of the authorities seem to' agree that a conductor at a railroad train, simply by virtue of his employment as such and without being specially authorized so to do, has no authority to employ agents' or servants for the company, except in cases of emergency demanding extra labor. 1 Elliott on Railroads (2d ed.) § 302, and authorities as cited. If the ground of the decision of the Kentucky court 'in the ease of Railroad Co. v. Willis, supra, is that in employing the plaintiff’s minor son the conductor was acting within the scope of his authority, then the decision is necessarily overruled by the later case of Clarke v. Railroad Co., 111 S. W. 344, 33 Ky. Law Rep. 797, wherein the court laid down the rule as we have hereinbefore stated it. The ground of this decision seems to be that, while the plaintiff’s son was not employed by the conductor in the sense that he was to receive wages for his labor, he was, at the request or under the direction of the conductor, rendering service for the railroad company at the time of injury, and that the request or direction of the conductor was a wrongful interference with the rights of the plaintiff, for which the railroad [834] company was responsible. In the absence of an emergency requiring such, it was equally beyond the scope of the conductor’s employment for him to request or direct a person to render service for the railroad company, where such person was hot already employed by the company. The right so to' do' would necessarily carry with it the right of such person to> demand pay from the company for the service rendered. In the absence of ■an emergency, a conductor is limited in the operation of his train to the service of such persons as are furnished'him by the master for that purpose. It follows, from the foregoing views, that appellant was not responsible for the act of the conductor in employing appellee’s son, and that the trial court erred in granting the peremptory instruction requested by appellee. We express no opinion relative to the other questions involved herein. Reversed and remanded.