Opinion of the Court by
Chief Justice Hobson—
Reversing.
Liston B. Miller was a conductor in the service of the Central Kentucky Traction Company, and on August 30, 1908, was injured in a collision between the car he was on and some other cars which had been left standing on the track. He brought this suit to recover for his injuries. The proof for him on the trial showed these facts: He left Lexington for Versailles at 11 p. m., and was ordered by the dispatcher to return from Versailles to Lexington that night so as-to be able to take out a car early-next morning. His car was a regular car but an extra followed it. When he 'reached Versailles he got on the extra car which had orders to return to Lexington that night. They left Versailles for Lexington at 12:05. When they were about a mile out of Versailles the motorman became sick, was pale and looked weak; he asked Miller to operate the car for him as he was sick. [111]*111Miller then took the motor bar and began operating the car. The motorman went to the side of the car and vomited. When they reached Anglin avenue, in Lexington, the motorman said to Miller that he felt better and Miller turned the car over to bim at his request. When they reached Broadway the motorman again called to Miller saying that he was too sick to run the car and asked him to take charge of it. He ran it to Union and Broadway where at the request of the motorman he again turned the handlebar over to him. The motorman then ran the car to Main and Limestone streets, where he again said to Miller that he was too sick, that he could not go to the barn with the car and Miller would have to take the car in for him. Miller took charge of the car again and when he reached Fourth street where the mortorman lived, by an agreement between them the motorman got off, Miller slowing down the car for that purpose but not coming to a full stop. Miller ran the car on toward the barn. Between three and four squares beyond where the motorman got off, but before they had reached the car barn, the collision occurred and Miller was badly hurt. The track at that point was owned by the Lexington Railway Company, but the Bluegrass Traction Company and the Central Traction Company under an arrangement with the owner ran their cars over it. Each of the three companies were under the same management, each had the same dispatcher and the same superintendent. They all used the same barn. The cars into which Miller ran had been placed upon the track by the servants of the Bluegrass Traction Company acting under the orders of the same superintendent who had ordered the car Miller was on to return from Versailles to the car barn that night. The headlight of the car Miller was on was burning badly. An automobile passed just before he reached these cars which threw up considerable dust so that Miller, although on the lookout, could not see the cars in front of bim until he was right on them. Miller, while by employment a conductor, had previously run cars from the central station to the barn and understood how to manage them. The train dispatcher left his office at twelve o’clock at night and there was no way to communicate with any officer of the defendant after the motorman became sick and unable to operate the car.
On the other hand, the proof for the company was to the effect that the motorman simply felt badly but was [112]*112able to operate his car; that he did not request Miller to operate it for him but.-that Miller requested him to let him run it, and the motorman sat by him on the stool while he was running it until they reached Fourth street where the motorman asked Miller to take the car into the barn for him as Miller lived near the barn, so as to save the motorman the walk back home from the barn. The conductor who was in the car testified that the motorman •was not sick so far as he knew; that he had heard nothing of his being sick and that he did not know that Miller was operating the car until they reached Fourth street, where he heard the motorman from the ground call to Miller and ask him to take care of his tool box for him. The defendants’ proof was to the effect that Miller was not ordered to return to Lexington that night, but came back of his accord to avoid the expense of staying at Versailles. The proof for the defendant also showed that the headlight was good and that there was an express rule of the company forbidding a motorman under any circumstances to turn over his handlebars to another, and requiring him if for any reason he had to leave the car, to take his handlebar with him so that no one could operate the car while he was off it. On the other hand, there was proof by the plaintiff to the effect that it was customary for the conductors to operate the cars when the motorman was eating his lunch or for any reason he was temporarily disabled, and this usage was known and acquiesced in by the officers of the defendant.
On this proof the court instructed the jury in substance (1) that if Miller was rightfully operating the car as motorman and while he was so operating it and exercising ordinary care, it collided with the freight cars, negligently left on the track by the defendant, they should find for the plaintiff; (2) that unless they so believed they should find for the defendant; (3) that if the motorman on the car became so ill that he could not in safety to himself and in safety to the car and its passengers or crew operate it, or if the plaintiff believed, and had reasonable grounds to believe this, and that it was necessary that the car should be moved and it was impracticable to obtain orders from the officers of defendant what steps to take toward supplying the place of the motorman, then the plaintiff, so long as these con[113]*113ditions existed and no longer, was rightfully the motorman upon the car; (4) the plaintiff: could not recover if he failed to exercise ordinary care in operating the car; (5) if the cars with which the collision occurred had been negligently left on the track by the servants of the Bluegrass Traction Company, such servants for the purposes of this action were the servants of the defendant. The jury found for the plaintiff fixing the damages at $12,-000. The court entered judgment on the verdict and refused a new trial. The defendant appeals.
The defendant asked the court to instruct the jury that they could not find for the plaintiff unless they believed from the evidence that at the time the motorman left the car at Fourth and Limestone streets, he was by reason of sickness unable to run the car, and it was for this reason necessary to get Miller to run the car to the barn. The court refused to so instruct the jury, and by the instruction which he gave allowed Miller to recover although no emergency in fact existed, if Miller believed and had reasonable grounds to believe that the emergency existed.
In determining the rights of the parties we must carefully bear in mind the relation in which they stood. While Miller was in the service of the company as conductor, he was not the conductor of the car on which he was riding; he had no duty to the company to perform on that car; under his own evidence he was simply ordered to return to Lexington on that car. In so far as he took any part in running the car he was simply a volunteer unless an emergency arose, requiring him to run the car. The rule is that a person who is not authorized to perform as a servant the work in which he is injured, can not recover of the master if he is injured, damages for his injury, because the master not having authorized him to act owes him no duty.
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Opinion of the Court by
Chief Justice Hobson—
Reversing.
Liston B. Miller was a conductor in the service of the Central Kentucky Traction Company, and on August 30, 1908, was injured in a collision between the car he was on and some other cars which had been left standing on the track. He brought this suit to recover for his injuries. The proof for him on the trial showed these facts: He left Lexington for Versailles at 11 p. m., and was ordered by the dispatcher to return from Versailles to Lexington that night so as-to be able to take out a car early-next morning. His car was a regular car but an extra followed it. When he 'reached Versailles he got on the extra car which had orders to return to Lexington that night. They left Versailles for Lexington at 12:05. When they were about a mile out of Versailles the motorman became sick, was pale and looked weak; he asked Miller to operate the car for him as he was sick. [111]*111Miller then took the motor bar and began operating the car. The motorman went to the side of the car and vomited. When they reached Anglin avenue, in Lexington, the motorman said to Miller that he felt better and Miller turned the car over to bim at his request. When they reached Broadway the motorman again called to Miller saying that he was too sick to run the car and asked him to take charge of it. He ran it to Union and Broadway where at the request of the motorman he again turned the handlebar over to him. The motorman then ran the car to Main and Limestone streets, where he again said to Miller that he was too sick, that he could not go to the barn with the car and Miller would have to take the car in for him. Miller took charge of the car again and when he reached Fourth street where the mortorman lived, by an agreement between them the motorman got off, Miller slowing down the car for that purpose but not coming to a full stop. Miller ran the car on toward the barn. Between three and four squares beyond where the motorman got off, but before they had reached the car barn, the collision occurred and Miller was badly hurt. The track at that point was owned by the Lexington Railway Company, but the Bluegrass Traction Company and the Central Traction Company under an arrangement with the owner ran their cars over it. Each of the three companies were under the same management, each had the same dispatcher and the same superintendent. They all used the same barn. The cars into which Miller ran had been placed upon the track by the servants of the Bluegrass Traction Company acting under the orders of the same superintendent who had ordered the car Miller was on to return from Versailles to the car barn that night. The headlight of the car Miller was on was burning badly. An automobile passed just before he reached these cars which threw up considerable dust so that Miller, although on the lookout, could not see the cars in front of bim until he was right on them. Miller, while by employment a conductor, had previously run cars from the central station to the barn and understood how to manage them. The train dispatcher left his office at twelve o’clock at night and there was no way to communicate with any officer of the defendant after the motorman became sick and unable to operate the car.
On the other hand, the proof for the company was to the effect that the motorman simply felt badly but was [112]*112able to operate his car; that he did not request Miller to operate it for him but.-that Miller requested him to let him run it, and the motorman sat by him on the stool while he was running it until they reached Fourth street where the motorman asked Miller to take the car into the barn for him as Miller lived near the barn, so as to save the motorman the walk back home from the barn. The conductor who was in the car testified that the motorman •was not sick so far as he knew; that he had heard nothing of his being sick and that he did not know that Miller was operating the car until they reached Fourth street, where he heard the motorman from the ground call to Miller and ask him to take care of his tool box for him. The defendants’ proof was to the effect that Miller was not ordered to return to Lexington that night, but came back of his accord to avoid the expense of staying at Versailles. The proof for the defendant also showed that the headlight was good and that there was an express rule of the company forbidding a motorman under any circumstances to turn over his handlebars to another, and requiring him if for any reason he had to leave the car, to take his handlebar with him so that no one could operate the car while he was off it. On the other hand, there was proof by the plaintiff to the effect that it was customary for the conductors to operate the cars when the motorman was eating his lunch or for any reason he was temporarily disabled, and this usage was known and acquiesced in by the officers of the defendant.
On this proof the court instructed the jury in substance (1) that if Miller was rightfully operating the car as motorman and while he was so operating it and exercising ordinary care, it collided with the freight cars, negligently left on the track by the defendant, they should find for the plaintiff; (2) that unless they so believed they should find for the defendant; (3) that if the motorman on the car became so ill that he could not in safety to himself and in safety to the car and its passengers or crew operate it, or if the plaintiff believed, and had reasonable grounds to believe this, and that it was necessary that the car should be moved and it was impracticable to obtain orders from the officers of defendant what steps to take toward supplying the place of the motorman, then the plaintiff, so long as these con[113]*113ditions existed and no longer, was rightfully the motorman upon the car; (4) the plaintiff: could not recover if he failed to exercise ordinary care in operating the car; (5) if the cars with which the collision occurred had been negligently left on the track by the servants of the Bluegrass Traction Company, such servants for the purposes of this action were the servants of the defendant. The jury found for the plaintiff fixing the damages at $12,-000. The court entered judgment on the verdict and refused a new trial. The defendant appeals.
The defendant asked the court to instruct the jury that they could not find for the plaintiff unless they believed from the evidence that at the time the motorman left the car at Fourth and Limestone streets, he was by reason of sickness unable to run the car, and it was for this reason necessary to get Miller to run the car to the barn. The court refused to so instruct the jury, and by the instruction which he gave allowed Miller to recover although no emergency in fact existed, if Miller believed and had reasonable grounds to believe that the emergency existed.
In determining the rights of the parties we must carefully bear in mind the relation in which they stood. While Miller was in the service of the company as conductor, he was not the conductor of the car on which he was riding; he had no duty to the company to perform on that car; under his own evidence he was simply ordered to return to Lexington on that car. In so far as he took any part in running the car he was simply a volunteer unless an emergency arose, requiring him to run the car. The rule is that a person who is not authorized to perform as a servant the work in which he is injured, can not recover of the master if he is injured, damages for his injury, because the master not having authorized him to act owes him no duty. There is an exception to this rule where the injured person is an emergency assistant acting at the request of an employe, who has under such circumstances, authority to request his assistance, although ordinarily he is not invested with such power. (2 Labatt on Master and Servant, section 631.) Thus in Sloan v. Cen. Iowa R. R. Co., 62 Iowa, 728, a conductor whose crew was short, requested a third person to act as brakeman on his train, the regular brakeman being absent. It was held that the con[114]*114ductor though not ordinarily authorized to hire brakemen, had authority to supply the place of the absent brakeman for the time being. The same principle was applied in Aga v. Harbach, 127 Iowa, 144, where an engineer requested another to help him adjust an electric light in the engine room. In Georgia Pac. R. R. Co. v. Propst, 83 Ala., 518, one of the brakemen on a train became violently sick, and the conductor requested a third person to act as brakeman in his place. It was held that the person so acting in the emergency could recover for an injury received. In L. & N. R. R. Co. v. Ginley, 100 Tenn., 472, the conductor in an emergency requested a third person to help him when his brakeman was otherwise employed, and could not make a coupling. A recovery by the person who was thus injured was sustained. There are also numerous cases holding that a person is not a volunteer if he assists the servants of the defendant at their request in doing work in which he is interested, and while so acting is injured by the negligence of the defendant. This has been applied in cases in loading freight and in favor of passengers on cars where an accident had occurred or by reason of some other emergency it was necessary that the passengers should assist the servants of the railroad company. (Eason v. S. E. T. R. R. Co., 65 Tex., 577, and authorities cited.) But we have not been referred to any case in which a recovery has been allowed by one who assisted a servant at his request when no emergency in fact existed and the servant was without authority to employ assistance. We do not think that such a rule should be applied on the facts of this case. From the time the car left Versailles until about the time that the motorman got off at his house, the. conductor, the motorman and Miller were the only persons on the car. About the time the motorman got off, a trespasser got on to ride down to the barn, and he was the only other person on the car. The conductor and the motorman were in charge of the car. If the motorman became disabled it was incumbent upon the conductor to take charge of it. Miller was under no responsibility for the car. The conductor was not consulted. Miller simply took charge of it.at the request of the motorman and should be regarded as a volunteer unless the motorman was in fact so sick that he could not safely operate the car. It is true there is proof by Miller that the conductor had not long been on the road and did not understand how to operate a ear. [115]*115Still he was in charge of it, and he knew nothing of any .disability on the part of the motorman or of his intention to leave the car until he had left it. It is true that .he then allowed Miller to operate the car down toward the barn, but as the motorman had been left behind in view of the short time that elapsed before the collision, Miller should be regarded as simply a volunteer, unless in fact the motorman when he left the car at Fourth and Limestone under the arrangement between him and Miller was too sick to-operate-it safely to the barn. In other words, Miller can not recover unless he acted in an emergency, and it was for the jury under all the facts to say whether or not an emergency existed. The fault with instruction No. 3 given by the court is that the' court thereby left it to Miller to decide whether an emergency existed when this question was for the jury and not Miller. This instruction with the words “or if the plaintiff believed and had reasonable grounds to believe that such motorman had become and was so ill” omitted, expresses our idea of the law upon this point. The court should have instructed the jury on this point in substance as above indicated.
By another instruction the court will tell the jury ■that if the motorman got off the car at Fourth and Limestone streets and Miller then took charge of the car to operate it to the barn for the accommodation of the motorman, when the motorman was not in fact too sick to safely operate the car to the barn, they should find for the defendant.
Instruction 5 is also complained of, but we do not see that it was improper under the facts of the case. The defendant by its dispatcher had ordered this car to return from Versailles to the barn. Having given this specific order it was the duty of the defendant to exercise ordinary care to keep the place where the servant was to work reasonably safe. While this duty rested upon it, the superintendent who had charge of this car ordered the other cars taken out and gave the men who were to take them out no warning of the coming of the other car, or direction to keep the track clear. No care was taken to keep this track clear for the car which had been ordered to run over it. The court, therefore, properly held that the defendant was liable for the obstruction of the track. The court did not err in refusing to instruct the jury peremptorily to find for the defendant. [116]*116There was sufficient evidence that the mortorman was too sick to operate his car to take the case to the jury, and in view of the short distance from Fourth and Limestone streets to the barn, and the usage prevailing in such cases, if the emergency really existed, the plaintiff was an emergency assistant. We have examined the cases of Gamble v. Akron R. R. Co., 63 Ohio State, 352, and L. & N. R. R. Co. v. Hays, 128 S. W., 289. Neither of these cases are in any manner applicable to the question that we have considered; in neither of them was the question of the right of a volunteer to determine whether or not an emergency existed, presented or decided.
Judgment reversed and cause remanded for a new trial and for further proceedings consistent herewith.
Whole court sitting.
Judge Nunn dissenting.