Cincinnati, N.O. & T.P. Ry. Co.'s Receiver v. Finnell's Adm'r

• Decision Date: 17 March 1900
• Citation: 55 S.W. 902,108 Ky. 135
• Parties: CINCINNATI, N. O. & T. P. RY. CO.'S RECEIVER v. FINNELL'S ADM'R. [1]
• Court: Kentucky Court of Appeals

55 S.W. 902

108 Ky. 135

CINCINNATI, N. O. & T. P. RY. CO.'S RECEIVER v. FINNELL'S ADM'R. ^[1]

Court of Appeals of Kentucky.

March 17, 1900

Appeal from circuit court, Grant county.

"To be officially reported."

Action by the administrator of William Finnell against the receiver of the Cincinnati, New Orleans & Texas Pacific Railway Company and another to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and the defendant receiver appeals. Reversed.

Simrall & Galoin and A. G. De Jarnett, for appellant.

W. W Dickerson, for appellee.

HOBSON J.

Appellee filed this suit to recover for the loss of the life of his intestate by reason of the negligence of appellant's servants. The answer was substantially a traverse of the allegations of the petition, and at the conclusion of appellee's evidence, as well as on all the evidence appellant asked a peremptory instruction to the jury to find for him, which was refused. The proof showed that appellee's intestate was 17 years old, 6 feet high, and weighed about 140 pounds; that he was going to school at Corinth, Ky.; that on a number of occasions he had been allowed by the crew of appellant's local freight train to ride on the train free, and assist them in loading and unloading freight; that on the day on which he was killed this train, after arriving at Corinth, unloaded the freight for that point; that in this freight was a box of matches which took fire, and the conductor took the box out behind the depot to get at the fire and put it out; that while he was doing this the brakemen proceeded to put on the freight that was to be loaded at that point; that, among other things, a piano was to be loaded, and one of the brakemen requested the intestate and another boy, of about the same age, who was with him, a few feet away, to come and help them load the piano on the train. The piano was rolled to the door of the depot, which was about 4 feet above the platform, on the outside. Two of the brakemen got on one side of the piano, and the third brakeman and the two boys on the other side. They rolled the piano out of the door, with the intention of carrying it across the platform to the car; but when it left the door it either slipped from the two brakemen, or the weight was too heavy for them to carry, and fell to the platform, catching the intestate under it, and so mashing him that he died from his injuries a few days later. The conductor was not present, and knew nothing of what was going on until after the piano had fallen on the intestate; being out behind the depot, working on the box of matches.

The question in this case is whether the railroad company is responsible for the injury to the boy, received while voluntarily assisting the brakemen in discharging their duties. The rule on this subject is thus expressed in Wood Mast. & S. § 455: "A person who voluntarily, and without any employment, undertakes to perform a service for another, stands in the same relation as a servant for the time being, and is regarded as assuming all the risks incident to the business. And this is so even though the service is not wholly voluntary, but is induced by the request of a servant in the defendant's employ. Thus, where the plaintiff was sent by his master with a cart to the defendant's premises to get a load of cotton, and one of the defendant's servants requested him to assist in loading it, and while he was doing so he was injured by one of the defendant's servants negligently letting a bale fall upon him, it was held that an action could not be maintained; Erle, C.J., pertinently saying: 'This is the case of one volunteering to associate himself with another's servants in the performance of the defendant's work, and this without the consent or knowledge even of the defendant.' Such a person cannot stand in a better position than those with whom he associates himself, in respect to the master's liability." The same rule is laid down in 1 Shear. & R. Neg. § 182; 1 Lawson, Rights, Rem. & Prac. § 325. In Church v. Railroad Co. (Minn.) 16 L. R. A....