#### Cincinnati, New Orleans & Texas Pacific Railway Company, et al. v. Daniels’ Admx.

(Decided January 5, 1912.)

Appeal from Lincoln Circuit Court.

Master and Servant — Personal Injury — Railroads—Action for Damages — Employee When Not a Volunteer or Trespasser. — Decedent was a rear brakeman on a freight train. His caboose was out of repair. He and his conductor were engaged in equipping another caboose with supplies. For this purpose the supplies were carried to a point near one of the switching blocks in the railroad yards. The switching crew had charge of the caboose to be supplied. Decedent got upon the caboose to indicate to the switch- . ing crew where to spot the cabooes. This was customary. Held that although decedent was not being paid for his work, he was engaged in the performance of work of a .preparatory character which it was customary for the rear brakeman to do and which had to be done, and was thus serving his master in the spirit of a faithful ' employee, and that being true, he was not a trespasser or volunteer, but was entitled to the same protection and required to use the same degree of care as an ordinary switchman similarly situated.

JOHN GALVIN, K. S. ALCORN, J. W. ALCORN for appellants.

ROBERT HARDING, DENTON & FLIPPIN, J. W. RAWLINGS, W. S. BURCH and EMMETT PURYEAR for appellee.

OPINION OF THE COURT BY

WlLLIAM ROGERS CLAY,

COMMISSIONER

Affirming.

' On August 14, 1906, Tilomas L. Daniels fell from a cut of cars that were being switched in the Somerset yards of the Cincinnati, New,Orleans & Texas Pacific Railway Company and was killed. Charging that his death was occasioned by a sudden, unusual and unnecessary jerk of the train, this action was brought by his administratrix against the railway company and its *87engineer, George Colson, to recover damages. A trial before a jury resulted in a verdict for $6,800.00 in favor of plaintiff against tbe railway company, and $200.00 against Colston. Prom tbe judgment predicated tbereon tbe railway company and Colston appeal.

At tbe time of tbe accident, Daniels’ regular position was 'that of rear brakeman on a freight train. The caboose, wbicb was attached to bis train, was out of repair, and' it was necessary to procure another caboose. Just prior to tbe accident Daniels, together with bis brother-in-law, Cabell, and bis conductor, Buck Tucker, were engaged for an hour and a half or two hours in bringing from a store house to one of tbe tracks in tbe yard the necessary supplies with wbicb to equip tbe new caboose. These supplies consisted of brasses, chains, indicators, flags, jacks, etc., and were to be put into the caboose so it would be ready to go out on Daniels’ train. After tbe supplies bad been placed near tbe track, .Daniels said to Tucker, “I will go over and get tbe caboose and'have them stop tbe caboose at this place so we can load tbe supplies.” Tucker, tbe conductor, remarked, “all right.” Daniel then went straight across to tbe cars and climbed up on tbe caboose. At that time tbe caboose was being switched in 'the yard, and composed one of a cut of cars. First there were three empty cars, then tbe caboose, then two gondolas, then tbe engine. Tbe cut was being shoved by tbe engine and was moving north. Tbe switching crew was composed of tbe yard foreman and two switchmen, and tbe engineer and fireman in charge of tbe yard engine. When Daniels reached tbe cut of cars be climbed upon tbe caboose. Tbe engineer saw Daniels just a few seconds before be fell from tbe car.

One of appellee’s witnesses, who bad formerly been an engineer, testified that be was within a few feet of tbe engine when tbe .accident occurred. Tbe engineer applied bis straight-air brake valve and at tbe same time reversed bis engine. Tbe effect *of*this was to' cause ^ very sudden, rough stop, wbicb was not at all necessary. One of appellant’s witnesses also testified that be saw Daniels on top of tbe caboose and that tbe cut of cars went about five car lengths before be was thrown off. This witness says that when the cars stopped be saw a bulk go forward and fall. Later on be said it was Daniels who fell.

*88According to the testimony of Colston, the engineer, he made no stop at all until after Daniels fell.- Hamilton, another witness for appellant, says that the train was stopped as it went aronnd the curve of the main line. This stop was made on a signal from witness, because some stakes were leaning out from a flat car towards the track the train was on, and he was afraid these stakes would strike the cab.

As the evidence tended to show that no emergency existed which required both the application of the air brake and the reversing of the engine, and that this method of stopping the train caused a sudden, unusual and unnecessary jerk thereof, we conclude that the evidence upon this point was sufficient to justify the submission of the case to the jury.

Appellant’s most serious contention is that Daniels, at the time of the accident, was a trespasser or volunteer, and, therefore, not entitled to recover. Upon this point the evidence for appellant is to the effect that Daniels was not on duty at the time he was killed. In procuring the supplies for the caboose, as well as in getting upon the caboose for the purpose of spotting it, he was performing services for which he was not being paid and which devolved upon others. The switching crew, alone, had control of the cars in the yard. It was their duty to see that they were properly placed. The engineer takes signals from the switching crew, and no one else. Daniels had no right at all to signal the engineer. Daniels had no business whatever upon the caboose.

On the other hand, it is shown by the evidence for appellee that the conductor is charged with the duty of seeing that the caboose, before going out upon its trip, is properly equipped. Daniels, in helping to carry the supplies from the store house to the track, was working-in company with and under the direction of his- conductor. While not drawing any money for his services, he was getting ready for his work. In doing this-he and the conductor were following the usual plan of procedure. One witness testifies that it was customary for the rear brakeman to keep supplies on the caboose.- He also testifies that it was the duty of Daniels to guide and direct the engineer where to place or spot the caboose for the purpose'of taking on-supplies. ■ : ' •

'• Under this evidence we can not say that Danióls-was. a trespasser or volunteer. While, technically speaking,, he *89was not on duty was, therefore, receiving no pay for his services, yet he was engaged in the performance of work of a preparatory character, which it was customary for the rear brakeman to do and which was absolutely necessary to be done. lie was serving his master in the spirit of a faithful employe, and it would be taking too narrow a view of the scope of a servant’s duty to hold that, while so engaged, he was not entitled to the same protection from injury as the ordinary employe who is being paid for, and is engaged in the performance of the work for which he was employed.

While there is some criticism of the instructions given, we fail to find therein any errors prejudicial to appellant’s substantial rights. The .question, whether or not there was an unusual and unnecessary jerk of the train, and one so violent as to show a want of ordinary care o!n the defendant’s part for the safety of the deceased, was fairly presented to the jury. The instructions also imposed upon Daniels, in getting on top of the caboose, the duty of exercising the same degree of care in protecting himself as should have been exercised by a switchman of ordinary care in that position. The jury were further told that the engineer owed to Daniels no greater duty than he owed to the switchmen of his crew, and the instruction then defined what that duty was. The latter instructions were given upon motion of appellant, and were as favorable as appellant was entitled to.

Other alleged errors are relied upon, but we do not deem them of sufficient importance to justify a reversal.

Judgment affirmed.