Clarke v. Louisville & N.R. Co.

• Decision Date: 17 June 1908
• Parties: CLARKE v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

111 S.W. 344

CLARKE v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

June 17, 1908

Appeal from Circuit Court, Nicholas County.

"Not to be officially reported."

Action by Willie Clarke against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

J. J Osborne and W. J. Osborne, for appellant.

Benjamin D. Warfield and E. M. Dickson, for appellee.

CARROLL J.

The appellant at the time he received the injuries complained of was 18 years of age. His foot was crushed by being caught between the couplers in a train. Averring that the injuries he received were caused by the negligence of the employés of appellee in operating the train, he brought this action to recover damages. Upon a trial, and at the conclusion of the evidence offered in behalf of appellant, the lower court directed the jury to return a verdict in favor of appellee. So that the only question we are called upon to consider is whether or not the evidence introduced was sufficient to authorize a submission of the case to the jury. In the disposition of this question, it will be necessary to relate with some detail the facts.

On the day he was injured Clarke went to Maysville, Ky. on a passenger train. Late in the afternoon he went to the depot for the purpose of returning to his home upon a freight train that left Maysville for Paris about 5 o'clock. Arriving at the depot some 20 minutes before the freight left, he assisted the train crew, with whom he was acquainted, and with the knowledge of the conductor, in making up the train coupling and uncoupling cars, and performing such other duties as brakemen ordinarily discharge. He did not ask permission of the conductor to ride on the train, nor did the conductor ask him if he was going to ride, nor was anything said between them concerning this matter. But, when the train left Maysville, he got on it, and soon after it left the depot he went into the caboose where the conductor and the train crew were seated. The train had its full compliment of men, consisting of the engineer, fireman, conductor, and three brakemen. Between Maysville and Park Hill, at which last-named point the injury occurred, the train stopped at several stations for the purpose of unloading and loading freight, and at each of these places Clarke assisted the trainmen. He does not state particularly that the conductor requested him to assist the crew in loading and unloading freight, but does say that the conductor was present at each station, and did not object to his assistance or request him to desist. He also testifies that in the presence of the conductor one of the brakemen furnished him a suit of overalls to wear, so that he might not injure or soil his clothes in handling the freight. He did not pay or offer to pay any fare, nor was any fare demanded of him. When the train reached Park Hill, a station on the road, Clarke was directed by the conductor to uncouple the engine from the freight care next to it, so that the engine might go down on a switch some 200 yards distant, and get a couple of cars that they wanted to put into the train. When the engine started after the cars Clarke, in connection with one of the brakemen, got in the engine cab and rode down to the point where the cars were standing on the side track. He says he was directed by the conductor to go with the engine and assist in getting the cars out. When the engine reached a point some 25 feet from the loaded cars, Clarke got out of the cab, and walked back to couple the tender to the end of the nearest car. The coupling knuckles on the car were closed, and the tender bumped its coupling knuckle into the coupling knuckle of the freight care without making the coupling. Clarke then signaled the engineer to pull away from the freight car, which he did, until there was a space of some 10 feet between the end of the tender and the car. After the engine had pulled away, Clarke undertook with his hand and finally with his foot, to open the coupling on the freight car, so that the tender could be coupled to it. While in the act of opening the coupler with his foot, the engine backed in, catching his foot between the couplers, injuring it to such an extent as to make necessary the amputation of his leg between the ankle and the knee. Counsel for appellant contends, first, that at the time of his injury Clarke was a passenger and entitled to sue and recover as a passenger for injuries sustained; and, second, that, if he was not a passenger, he was an employé, and entitled as such to maintain the action and recover damages.

The question as to when a person who is not riding on a passenger train, or a train upon which passengers are permitted to ride, is entitled to the rights that attach to a passenger, has been considered by courts of last resort in a number of states, including our own court, and different views are taken as to when and under what circumstances the relation of passenger is created. But we do not think that any of the elements necessary to constitute Clarke a passenger, or to fix the liability of the company upon the basis that he was a passenger, exist in this case. There is no pretense that the train upon which he was riding had any accommodation for passengers, or that passengers were ever carried upon it, or that he asked or was given consent by the conductor or any other person to ride as a passenger, or that he tendered or offered to tender his fare as a passenger. On the contrary, Clarke knew that the train did not carry passengers, and that he was not riding on it as a passenger, except in the sense that he was being carried from one place to another. The mere fact that he was riding by the invitation or with the knowledge and implied consent of the conductor did not under the facts of this case convert him into a passenger in the ordinary and legal acceptation of the term. We do not deem it necessary in the consideration of this case to point out the conditions under which a person riding upon a freight train may become a passenger or to define the authority of the conductor of a freight train relative to permitting persons to take passage upon it. The facts make it so apparent that Clarke at the time he received the jury complained of was not a passenger that we will not do more than cite the following authorities in which different phases of this question are illustrated: Dunn v. Grand Trunk Ry. Co., 58 Me. 187, 4 Am.Rep. 267; L. & N. R. Co. v. Thornton, 58 S.W. 796, 22 Ky. Law Rep. 778; Dalton v. L. & N. R. Co., 56 S.W. 657, 22 Ky. Law Rep. 97; Skirvin v. L. & N. R. Co., 100 S.W. 308, 30 Ky. Law Rep. 1208; B. & C. S.W. R. Co. v. Cox, 66 Ohio St. 276, 64 N.E. 119, 90 Am.St.Rep. 583; Thompson on Negligence, § § 2666, 3326; L. & N. R. Co. v. Hailey, 94 Tenn. 383, 29 S.W. 367, 27 L.R.A. 549; Eaton v. Delaware, Lackawanna, etc., R. Co., 57 N.Y. 382, 15 Am.Rep. 513; L. & N. R. Co. v. Scott's Adm'r, 56 S.W. 674, 22 Ky. Law Rep. 30, 50 L.R.A. 381; C., N. O. & T. P. Ry. Co. v. Jackson, 58 S.W. 526, 22 Ky. Law Rep. 630; Elmore v. Sea Board Air Line R. Co., 131 N.C. 569, 42 S.E. 989.

Nor can Clarke at the time of his injury be considered as an employé of the company. The train had a full crew, there was no emergency, and no special need for the services of Clarke. The conductor under the circumstances had no authority to and did not employ him to assist as a brakeman. The general rule is that where a brakeman is absent, and the proper and safe management of the train so requires, and in cases of sudden emergency demanding extra labor, it is within the implied authority of the conductor to employ assistance; but all the authorities agree that, except under the conditions indicated, the conductor is not authorized to employ agents or servants to assist in the management or operation of the train. Sloane v. Railroad Co., 62 Iowa 728, 16 N.W 331; Railway...