Skirvin v. Louisville & N.R. Co.
| Decision Date | 20 March 1907 |
| Parties | SKIRVIN v. LOUISVILLE & N. R. CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Kenton County.
"Not to be officially reported."
Action by Omer Skirvin against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.
H. D Gregory and B. F. Graziani, for appellant.
Benjamin D. Warfield and S.D. Rouse, for appellee.
O'REAR C.J.
Appellant was invited by his brother, a switch brakeman in appellee's employ, to ride upon one of appellee's freight trains being switched in its yards in Newport. In attempting to get on the train appellant was jerked or thrown off by a sudden movement of the train, which he charges was negligently done, and with the knowledge at the time by the brakeman aforesaid of appellant's peril. In this suit by appellant to recover damages for his injury, the court peremptorily directed a verdict for the defendant.
Appellant's contention is that he was either a passenger or a licensee. But we think not. The train was a cut of freight cars being switched from one point in the railroad company's yards to another. It was in no sense a passenger train-- a fact so obvious that appellant as a person of ordinary intelligence must have been aware of it. A railroad company has the right to regulate its business so as to haul its passengers on one train and its freight traffic upon another. A conductor of a train is the representative agent of the carrier as to the train in his charge, within the scope of the business intrusted to him. A freight conductor might bind his principal as to anything coming within the actual or apparent scope of his duties; but as to matters clearly beyond his duties his attempt to bind the principal is futile for want of legal power. In such matter he is in no sense of the word acting for his master. Clearly a mere brakeman on a freight train, or the member of a switching crew, has not the power by virtue simply of his position, to bind his employer in a contract for the carriage of passengers on the latter's freight cars. The lack of authority is so patent that any one must take notice of it. The relation of carrier and passenger is one of contract. There must be an agreement by the carrier, and generally a consideration paid by or for the passenger, to bring the relation into being. When it is so created, the law imposes very vigorous obligations upon the carrier as to...
To continue reading
Request your trial