McDaniel v. Highland Ave. & B.R. Co.

• Decision Date: 11 June 1890
• Citation: 90 Ala. 64,8 So. 41
• Court: Alabama Supreme Court
• Parties: MCDANIEL v. HIGHLAND AVE. & B. R. CO.

8 So. 41

90 Ala. 64

MCDANIEL v. HIGHLAND AVE. & B. R. CO.

Supreme Court of Alabama

June 11, 1890

Appeal from circuit court, Jefferson county; E. T. TALIAFERRO Special Judge.

L C. Dickey and John F. Gillespie, for appellant.

CLOPTON J.

In the first count of the complaint plaintiff sues in the capacity of employe, and in the second as a passenger. Assuming the facts as testified by himself, he is not entitled to recover un der either count. The first avers that, being employed by defendant as switchman, he was injured by the carelessness and negligence of the engineer, and in consequence of defective machinery, while passing from the engine to the platform of the car for the purpose of alighting to turn the switch, "as was his duty then and there in the line of his employment." The controlling facts, so far as applicable to this count, are that he was employed by defendant about November 1, 1887, as a day laborer, as fireman and switchman, reporting daily for service, and, when not needed for the day, was allowed to attend to other business, subject to the call of defendant. That he was not employed on the day of the injury, other than by the conductor, as hereinafter stated, is not controverted; to use his own language, he was "off duty." On that day January 31, 1888, he boarded a train of defendant at Lake View, of his own accord, and, after getting on the train, was ordered by the conductor to turn the switch at Cox's station, between Lake View and Birmingham. Both the conductor and the clerk of the superintendent of the company testified that the former had no authority to employ plaintiff or any other person; therefore, whether plaintiff was employed depends upon the implied authority of the conductor. In Railway Co. v. Propst, 83 Ala. 518, 3 South. Rep 764; 85 Ala. 203, 4 South. Rep. 711, it was ruled that as, in an emergency, discretion and authority to supply the places of disabled and missing servants must reside in some officer or agent of the corporation, and as no one could exercise this power as well or so prudently as the conductor in charge of the train, his authority will be implied. But it was also held that the employment, to bind the company, must come within the scope of his agency or implied power; and that an order or direction to do a single act, such as to turn a single switch, will not constitute an employment binding the company. Authority to supplement temporarily the...