St. Louis & S.F.R. Co. v. Hunt

• Decision Date: 19 November 1912
• Citation: 60 So. 530,6 Ala.App. 434
• Parties: ST. LOUIS & S. F. R. CO. v. HUNT.
• Court: Alabama Court of Appeals

60 So. 530

6 Ala.App. 434

ST. LOUIS & S. F. R. CO. v. HUNT.

Court of Appeals of Alabama

November 19, 1912

Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.

Action by Dan Hunt against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Campbell & Johnston, of Birmingham, for appellant.

E. D Coffman, B. C. Burkhart, and Gaston & Pettus, all of Birmingham, for appellee.

PER CURIAM.

In this case the fireman, without fault on the part of the conductor left the engine at a time when a part of the train of cars--it was a freight train--was on the main line and the other part on a side track at Townley, a station 50 miles west of Birmingham. The crew of the train consisted of the conductor, the fireman who had left the train, two brakemen the engineer, and a flagman. The train was on its way to Birmingham. Townley is evidently a place of minor importance and the services of a fireman could not be obtained at that point unless, indeed, the conductor had induced the fireman who had left his engine to go back on the engine and resume his duties. This the conductor did not do.

Dan Hunt, the appellee, was one of the brakemen, and, accepting his testimony as true, while he was not a fireman, he had at times been on an engine and helped the fireman to "scoop coal into the furnace" and necessarily, therefore, knew something of the work which a fireman has to do. The testimony is silent as to whether the other brakeman knew anything whatever about the duties of a fireman, and the conductor testifies that he did not know whether the front brakeman, Jess McCain, knew how to fire an engine or not, but that he did know that appellee, Dan Hunt, knew how to do it.

The above being the situation, an emergency existed which required prompt action on the part of appellant. While the train was a freight train, the law requires a common carrier, in and about the transportation of freight, to act with reasonable dispatch, and, as the main line of the railroad was obstructed by a part of the train, it became the duty of appellant to clear that line of the obstruction to the end that the lives of travelers should not be endangered and the freight and passenger service of appellant should not be interfered with. There was evidence tending to show that on appellant's road it was the custom for the "front" brakeman (the position occupied by Jess McCain) to supply the place of the fireman in case of such an emergency as above existed, and that it was not the custom for the "swing" brakeman (the position occupied by appellee) to supply the place of the fireman. The evidence shows, without dispute, that the conductor, in this emergency, ordered the appellee to get on the engine and act as fireman, that appellee refused to obey that order, that when he did so the conductor told him to get "his things and get off," and that appellee complied with that order and left the train. The evidence further tends to show that appellee applied to the station agent at Townley for a pass into Birmingham, but that none was furnished him, and that, being without money, he borrowed $1.371/2 from Jess McCain, bought a ticket, and went into Birmingham on a passenger train. The passenger train reached Birmingham before the arrival of the freight. It further appears that when appellee left the train Jess McCain, the other brakeman also left it, and that when the train left Townley the conductor was acting as engineer, the engineer as fireman, and the flagman as conductor, flagman, and brakeman.

1. There are four counts to the complaint, and they claim all the damages which the appellee alleges he sustained, both actual and vindictive, on account of the above acts of the conductor. The sufficiency of these counts was properly raised by demurrer, but we deem it unnecessary to consider the question as to the sufficiency vel non of either of them. It seems to us that certain well-known principles determine this controversy, and we prefer to discuss the propositions going to the merits of the case.

2. The conductor of a railroad train is its master, and upon him, in cases of emergency, the law, out of necessity, casts large authority over his subordinates. It must be remembered that while he is answerable to his superior, the railroad company, for all acts done by him while in charge of his train, it is necessary for the convenience and safety of the traveling public that he should possess all needed authority over the subordinates on his train to maintain proper discipline and respect for his orders. When an emergency arises, quick action is usually necessary. It is impossible for the general manager, the president of the company, or its board of directors to order what shall be done or how or by whom it shall be done. Some one, however, must be there to act, and the law says that, in an emergency, the conductor becomes the railroad company itself. "In such cases the master--that is, the railroad company--must be regarded as constructively present, and some one must be regarded as invested with a discretion and a right to speak in his name. One thus speaking, although ordinarily a servant, may now have the authority of an agent. He may have a right to give orders, and, although ordinarily a servant with those whom he addresses, he is now elevated, by necessity, to a higher position. He can command and they must obey." American Railroad Law (Baldwin) p. 253, § 8; Georgia Pac. Ry. Co. v. Propst, 83 Ala. 518, 3 So. 764; 3 Thompson on Neg. § 3175; 5 Rapalje & Mock's Dig. Railway Law, p. 734.

Certainly the master, at any time, may put an end to a contract of employment for personal services. If he discharges his servant before the end of his...