Huntzicker v. Illinois Cent. R. Co.

• Decision Date: 09 May 1904
• Docket Number: 1,267.
• Citation: 129 F. 548
• Parties: HUNTZICKER v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

129 F. 548

HUNTZICKER v. ILLINOIS CENT. R. CO.

No. 1,267.

United States Court of Appeals, Sixth Circuit.

May 9, 1904

Bell Terry & Bell, for plaintiff in error.

Fentress & Cooper and Cooper, Hirsh & Cooper, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

The plaintiff's intestate, Fred Fereday, a young man desiring employment in the train service of the defendant, applied to the trainmaster on one of its divisions therefor, and, it appearing that he had not had sufficient experience to qualify him for the service, it was agreed that he should go upon the road and learn by observation and practice what the duties of a flagman were, and gain the necessary experience to qualify him. To this end the trainmaster gave him the following permit:

'Fulton Ky., May 14, 1902.

'Freight Conductors, Fulton District:

'Allow the bearer, Fred Fereday, to learn the duties of flagman on Fulton District. Good thirty days.

O. M. Sewall, Trainmaster.' Thereupon Fereday, using the permit, went upon various freight trains moving over the road, seeking to acquire familiarity with the business. He observed and inquired about the methods of the business, and was instructed therein, and participated in the performance of the duties of flagman under the direction and control of the conductor of the train. On June 3, 1902, Fereday having expressed a desire to be examined in respect to his proficiency, the trainmaster indicated that if he would come to his office he would examine him. A message to that effect was delivered to Fereday, who thereupon left the train on which he then was, and took another freight train moving to the destination where the trainmaster's office was located. On this train he used his permit, and continued his pursuit of information, and to some extent his practice of executing a flagman's duties. While on the way, being tired, he obtained the conductor's consent that he lie down in the caboose and sleep awhile. This he did, and while he was asleep, a train coming up from behind negligently ran into the caboose, crushing it, and killing him instantly. Upon proof of these facts by the plaintiff, and of which there was no dispute, counsel for the defendant moved for a peremptory instruction by the court that the jury should find for the defendant, upon the ground, as we gather, that Fereday was a fellow servant, with those by whose negligence he was killed. The request was granted, and a verdict was rendered for the defendant, and judgment accordingly.

The decisive question in the case is whether Fereday was a servant of the defendant at the time he was killed. If he was, he was a fellow servant with those whose negligence caused his death, and the defendant would not be liable. Oakes v. Mase, 165 U.S. 363, 17 Sup.Ct. 345, 41 L.Ed. 746; New England R.R. Co. v. Conroy, 175 U.S 323, 20 Sup.Ct. 85, 44 L.Ed. 181. If he was a mere licensee, in the enjoyment of a privilege accorded him by the defendant, he was not a fellow servant, and the plaintiff was entitled to recover. As there was no controversy over the facts, the question became one of law, and the court performed a duty of its own in deciding it. The agreement between the parties, reduced to its elements, was that the defendant was to furnish the plaintiff the facilities for qualifying himself for the duties of a flagman; that is to say, it was to give him instruction and transportation over its road; not such transportation as is due to a passenger, but such as is ordinarily incident to the operation of freight trains by men in that service. In consideration of this, Fereday was to perform such elementary and simple service as he was capable of under the direction of the conductors of trains. If this were doubtful, the subsequent conduct of the parties confirms the construction of the contract above states. As there was no contract for his ultimate employment as a flagman, the defendant would receive and did receive no other consideration for the privileges granted to Fereday than such services as he would render while in the enjoyment of them. It is quite true that he was not obliged to...