Flower v. Pennsylvania Railroad

1. A tram of defendants coming into a city, the engine, tender and one car were detached from the remainder, and run undeqthe charge of the fireman in the engineer’s place, to a water-station belonging to the defendants. At the station, the fireman asked a boy ten years old, standing there, to turn on the water : whilst he was climbing on the tender to put in the hose, the remainder of the train came down with their ordinary force, struck the car attached to the engine; the jar threw the boy under the wheel and he was killed. In an action by the parents for his death, Held, that it not being in the scope of the engineer’s or fireman’s employment to ask any one to come on the engine, the defendants were not liable. 2. The boy in climbing on the tender at the request of the fireman, did not come within the protection of the defendants, and they therefore owed no duty to him. 3. Assuming that he was an employee of defendants, at the request of the fireman; this relation would destroy the right of action. 4. Kay v. Pennsylvania Railroad, 15 P. F. Smith 269, distinguished.

Error to the Court of Common Pleas of Lebanon county: No. 57, to May Term 1871. This was an action on the case, commenced May 9th 1868, in the Court of ‘Common Pleas of Lancaster county, by John M. Elower and Wife against the Pennsylvania Railroad Company, to recover damages for the death of the plaintiffs’ son, Phares Elower, a child about ten years old, occasioned, as they alleged, by the negligence of the defendants’ servants. On the 31st of August 1869, the cause was removed by the defendants to- the Court of Common Pleas of Lebanon county, where it was tried November 16th 1870, before Pearson, P. J. The undisputed facts appeared to be the following:— The plaintiffs lived in the city of Lancaster, the father, a shoe maker, occupying a shop on the line of the defendants’ track, about half-way between James and Lemon streets, the distance between them being about 600 feet, and opposite a water-station of the' defendants ; a door from his shop opening on the platform of the station, which is in an excavation about six feet deep. About 8 or 9 o’clock in the morning of the 2d of May 1868, the son went on the platform; whilst there an engine and tender, with one car of the defendants, under the charge of the fireman only, came up to the station for the purpose of taking water. While the engine was standing, the boy was climbing on the tender, and at the moment some detached cars from above struck the car attached to the tender; the shock caused the boy to fall; he was run over and killed. The evidence of the plaintiffs was from several witnesses. The father testified that he heard some one ask the boy to put on the hose and turn on the water, just after that he heard a noise, went out and found his son with his neck under a wheel, killed. Greorge Babel, a boy about thirteen years old, testified that he was standing on the water-station and heard the fireman tell the boy to put the water into the tank; whilst the boy was getting over the tender to do so, a car ran down the track, jarred the engine and threw the boy off, the car went over him and killed him. This witness and the deceased were the -only persons on the platform. For the defendants: — The fireman denied that he had asked the deceased to put water into the engine; he testified that he had no power to ask any one to do it; if he had, he would have violated his duty. The conductor testified that he had cut the engine and car, it ran down to get water; he ran the other cars to the water-station to couple them; he got on to the foremost car, and in attempting to apply the brake the chain broke; he went on to the other car for the same purpose, but before he reached the brake on that, the cars came together and the accident occurred; his cars came down at about the rate of three miles an hour. Black, the foreman of engines, testified that he selected the engineers from the firemen; engineers are not permitted to carry any one but the conductors and witness; it is the duty of firemen to supply the engines with water, and they have no power to invite another to put it on; in the absence of the engineer the fireman acts as engineer for the time being; they have printed instructions to that effect. The engineer of the train testified, that as he was coming through Lancaster with his train he was necessitated to leave it, and told the fireman to run to the station and take in water. The place where the station was, was used exclusively for the passage of trains; the water-station was on a piece of ground held by the company under a long lease; it was not at any public crossing. The plaintiffs’ first point was:— “ If the jury believe that plaintiffs’ minor son was induced by the defendants’ agent, engaged in his proper employment upon a place of danger, such agent at the time neglecting his own duty, and imposing it upon said minor, and the said minor was there killed by the negligence of said agent, or other agents of the company, plaintiffs are entitled to recover. To this point the court answered :— “ This point is negatived, as it applies to the facts of the present case; as the person who invited the deceased on the engine or tank had no authority in law so to do, and therefore as relates t.o the defendants the deceased was a trespasser in getting on the engine or tank’ — was there without authority.” The court, after referring to the evidence, charged:— * * * “ On this contradictory evidence, it would be left to the jury to determine the disputed facts, and whether there was or was not negligence on the part of the, company’s servants, which caused the death of this boy, provided the case turned on that question, which in our opinion it does not, but on whether he was on the engine by lawful authority or as a mere intruder and trespasser. “ If the person injured is on the train as a mere trespasser, without authority from any one having power to give it, he cannot recover damages unless injured intentionally or through very gross negligence, and even then probably not from the company, but from the person causing the damage. The same rule prevails where parents sue for the loss of service of the child. If a person is invited on the train by some employee of the company not having the superior control in that department of the company’s business, but is at the time out of the range of his employment, and the person invited is-injured whilst so on the train, the company is not liable. The injured person is a mere trespasser. The principal may be always considered present when the servant acts within the general scope of his employment. If he travels entirely out of it the principal cannot be affected. * * * “ Where by the rules of the company the engineer and fireman are prohibited from taking any one on the engine except the conductor of the train, or the agent having general control of that branch of the company’s business, and the servant (engineer or fireman) permit a man to ride, or invite him on the engine, it is out of the usual course of the servant’s employment, and if the person so invited is injured through carelessness, the company is not responsible. The party is there without authority, for it is not the general business of the engineer or fireman to carry passengers, therefore no one can be misled by their situation on the train, nor have they any right, as against the company, to suppose that the engineer or fireman had authority to invite them on the engine or train. The person inviting would be answerable in damages, but not the company. It is precisely the same in law as if rñen or boys should climb on the cars without invitation or request from any one. Both men and boys are in the practice of intruding on the track of the road, and getting on the cars without justification or excuse, and the company is not responsible in such cases unless for intentional injury by their employees, or for very gross carelessness. * * * The engineer had no authority by virtue of his office, to invite this boy, or any other outsider, on his engine. This particular act was prohibited, and it was entirely beyond the general scope of his employment; therefore, if he did say to the boy, ‘Put on the hose and turn on the water,’ it was no lawful authority for the boy to get on the engine. So far as it affects the railroad company, it is the same as if the boy had volunteered to do the act, or climbed on the tender without request from any one.” * * * The verdict was for the defendants. The plaintiffs took a writ of error, and assigned for error the answer to their 1st point and the charge of the court.