Walton, J.
It appears that the Maine Central Railroad Company, while engaged in transporting earth for its own use, undertook to deliver some earth for the use of Mr. H. N. Jose. And the evidence tends to show that the crew in charge of the gravel train requested the men employed by Mr. Jose to assist in dumping the earth out of the cars, and that while so engaged [564]*564a broken car, unevenly loaded, tipped over and fell upon one of Mr. Jose’s men (Thomas Welch) and inflicted injuries of which he afterwards died. Nor these injuries the administrator of Welch has recovered a verdict against the railroad company for eight thousand dollars damages. The case is before the law court on exceptions and motion for a new trial. We will first examine the exceptions.
I. It is insisted in defense that it was the duty of the servants of the railroad company to dump Jose’s earth out of the cars, and that they had no authority to employ Jose’s men to assist them, and that Jose’s men were trespassers in attempting to do so, and that, being trespassers, the railroad company owed them no duty, and was under no obligation to protect them against the carelessness of its servants.
It is undoubtedly true that, if one who has no interest in the work to be performed, a mere by-stander, voluntarily assists the servants of another, either with or without the latter’s request, he must do so at his own risk. And the jury were so instructed in this case. But it is equally well settled that one who has an interest in the work to be performed, and for his own convenience, or to facilitate or expedite his own work, assists the servants of another, at their request or with their consent, is not thereby deprived of his right to be protected against the carelessness of the other’s servants. In the former class of cases the master will not be responsible. In the latter he will be. This distinction is sustained by every text-book to which our attention has been called, and is well sustained by adjudged cases.
Thus, in Degg v. Midland Railway Company, 1 H. & N. 773, where a mere by-stander, without any request from the-servants of the railway company, volunteered to assist them in working a turn-table, and was carelessly injured by the servants of the company, the court held that he had no remedy against the company. And this case is approvingly cited in Osborne v. Railroad Company, 68 Maine, 49.
But, in Wright v. London & Northwestern Railway Company, L. R. 10 Q. B. 298, where the consignee of a heifer assisted in moving the car, in which she had' been brought, in order to [565]*565hasten her delivery, and ivas carelessly run against and hurt, the court held that he had a remedy against the company — that the rule established in the Begg case did not apply. To the same effect is Holmes v. Railway Company, L. R. 4 Exch. 254, 6 Ex. 123.
So, in this country, in Street Railway Company v. Bolton, 52 Am. Rep. 803 (43 Ohio St. 224,) where a passenger on a street railway car assisted in backing the car on to the track at a turn-out, and was carelessly run against and hurt, the court held that the railway company was responsible, because the assistance rendered tended to expedite the passenger’s journey and prevented his being regarded as a mere volunteer.
So, in Eason v. Railway Company, 57 Am. rep. 606, (65 Tex. 577,) where, to facilitate the loading of lumber, it became necessary to move a car, and the shipper’s servant, at the request of the conductor of the freight train, undertook to make the coupling, and was injured by the carelessness of the company’s servants, the court held that the railway company was responsible — that the servant was nota mere volunteer,because the assistance which he undertook to render was to facilitate his own work and thus promote the interests of his employer. The rule of exemption and its limitations are very clearly stated in this case.
The distinction running through all the cases is this, that where a mere volunteer, that is, one who has no interest in the work, undertakes to assist the servants of another, he does so at his own risk. In such a case the maxim of respondeat superior does not apply. But where one has an interest in the work, either as consignee or the servant of a consignee, or in any other capacity, and, at the request or with the consent of another’s servants, undertakes to assist them, he does not do so at his own risk, and, if injured by their carelessness, their master is responsible. In such a ease the maxim of respondeat superior does apply. The hinge on which the cases turn is the presence or absence of self-interest. In the one case, the person injured is a mere intruder or officious intermeddler. In the-other, he is a person in the regular pursuit of his own business, [566]*566and entitled to the same protection as any one whose business relations with the master exposes him to injury from the carelessness of the master’s servants. >
This distinction is sustained by the cases cited and by every modern text book to which our attention has been called; and we are not aware of a single authority which holds the contrary. The recent case of Wischam v. Richards, 136 Pa. St. 109, cited by defendant’s counsel, is not opposed to it. It sustains it. In that case, the plaintiff was hurt while assisting the defendant’s servants in unloading a heavy fly-wheel from a wagón. The court found as a matter of fact that the plaintiff was a mere volunteer, having no interest in the work which he undertook to assist the defendant’s servants in performing, and, consequently, ' that he had no remedy against their master. The court say that the 'plaintiff had no interest in the delivery of the wheel; that the delivery was not completed, but was going on when the accident occurred, and the delivery was the act of the defendant; that the participation of the plaintiff was not that of an owner receiving his own goods, but was that of a servant assisting the servants of the defendant, and that this circumstance brought the plaintiff’s case within the rule of non-liability. "The distinction,” said the court, "is refined, but it seems to be substantial, and we feel constrained to recognize it, and enforce it.” The fact that the plaintiff was a mere volunteer,. having no interest in the work which he undertook to assist the defendant’s servants in performing, -was the hinge on which the case turned, and defeated his right to recover. If the plaintiff had been sent to obtain the wheel, and, at their request or with their consent, had assisted the defendant’s servant^ in unloading it, in order to hasten or facilitate his own work, and had been injured by their negligence, his right to recover would undoubtedly have been sustained. As already -stated, the hinge on which the cases turn is the presence or 'absence of self-interest, or a self-serving purpose. In the one .ease, he is a mere volunteer — in the other, he is a person in the regular pursuit of his own business — a distinction very obvious .and substantial.
[567]*567Mr. Beach, in his work on Contributory Negligence, (sect. 120) says that where one assists the servants of another at their request, for the purpose of expediting his own business or that of his master, and be is injured by the servants’ negligence, the master is liable; that, in such a case, the relation of fellow-servant does not exist; and, in case of injury, the rule of respondeat superior applies.
Free access — add to your briefcase to read the full text and ask questions with AI
Walton, J.
It appears that the Maine Central Railroad Company, while engaged in transporting earth for its own use, undertook to deliver some earth for the use of Mr. H. N. Jose. And the evidence tends to show that the crew in charge of the gravel train requested the men employed by Mr. Jose to assist in dumping the earth out of the cars, and that while so engaged [564]*564a broken car, unevenly loaded, tipped over and fell upon one of Mr. Jose’s men (Thomas Welch) and inflicted injuries of which he afterwards died. Nor these injuries the administrator of Welch has recovered a verdict against the railroad company for eight thousand dollars damages. The case is before the law court on exceptions and motion for a new trial. We will first examine the exceptions.
I. It is insisted in defense that it was the duty of the servants of the railroad company to dump Jose’s earth out of the cars, and that they had no authority to employ Jose’s men to assist them, and that Jose’s men were trespassers in attempting to do so, and that, being trespassers, the railroad company owed them no duty, and was under no obligation to protect them against the carelessness of its servants.
It is undoubtedly true that, if one who has no interest in the work to be performed, a mere by-stander, voluntarily assists the servants of another, either with or without the latter’s request, he must do so at his own risk. And the jury were so instructed in this case. But it is equally well settled that one who has an interest in the work to be performed, and for his own convenience, or to facilitate or expedite his own work, assists the servants of another, at their request or with their consent, is not thereby deprived of his right to be protected against the carelessness of the other’s servants. In the former class of cases the master will not be responsible. In the latter he will be. This distinction is sustained by every text-book to which our attention has been called, and is well sustained by adjudged cases.
Thus, in Degg v. Midland Railway Company, 1 H. & N. 773, where a mere by-stander, without any request from the-servants of the railway company, volunteered to assist them in working a turn-table, and was carelessly injured by the servants of the company, the court held that he had no remedy against the company. And this case is approvingly cited in Osborne v. Railroad Company, 68 Maine, 49.
But, in Wright v. London & Northwestern Railway Company, L. R. 10 Q. B. 298, where the consignee of a heifer assisted in moving the car, in which she had' been brought, in order to [565]*565hasten her delivery, and ivas carelessly run against and hurt, the court held that he had a remedy against the company — that the rule established in the Begg case did not apply. To the same effect is Holmes v. Railway Company, L. R. 4 Exch. 254, 6 Ex. 123.
So, in this country, in Street Railway Company v. Bolton, 52 Am. Rep. 803 (43 Ohio St. 224,) where a passenger on a street railway car assisted in backing the car on to the track at a turn-out, and was carelessly run against and hurt, the court held that the railway company was responsible, because the assistance rendered tended to expedite the passenger’s journey and prevented his being regarded as a mere volunteer.
So, in Eason v. Railway Company, 57 Am. rep. 606, (65 Tex. 577,) where, to facilitate the loading of lumber, it became necessary to move a car, and the shipper’s servant, at the request of the conductor of the freight train, undertook to make the coupling, and was injured by the carelessness of the company’s servants, the court held that the railway company was responsible — that the servant was nota mere volunteer,because the assistance which he undertook to render was to facilitate his own work and thus promote the interests of his employer. The rule of exemption and its limitations are very clearly stated in this case.
The distinction running through all the cases is this, that where a mere volunteer, that is, one who has no interest in the work, undertakes to assist the servants of another, he does so at his own risk. In such a case the maxim of respondeat superior does not apply. But where one has an interest in the work, either as consignee or the servant of a consignee, or in any other capacity, and, at the request or with the consent of another’s servants, undertakes to assist them, he does not do so at his own risk, and, if injured by their carelessness, their master is responsible. In such a ease the maxim of respondeat superior does apply. The hinge on which the cases turn is the presence or absence of self-interest. In the one case, the person injured is a mere intruder or officious intermeddler. In the-other, he is a person in the regular pursuit of his own business, [566]*566and entitled to the same protection as any one whose business relations with the master exposes him to injury from the carelessness of the master’s servants. >
This distinction is sustained by the cases cited and by every modern text book to which our attention has been called; and we are not aware of a single authority which holds the contrary. The recent case of Wischam v. Richards, 136 Pa. St. 109, cited by defendant’s counsel, is not opposed to it. It sustains it. In that case, the plaintiff was hurt while assisting the defendant’s servants in unloading a heavy fly-wheel from a wagón. The court found as a matter of fact that the plaintiff was a mere volunteer, having no interest in the work which he undertook to assist the defendant’s servants in performing, and, consequently, ' that he had no remedy against their master. The court say that the 'plaintiff had no interest in the delivery of the wheel; that the delivery was not completed, but was going on when the accident occurred, and the delivery was the act of the defendant; that the participation of the plaintiff was not that of an owner receiving his own goods, but was that of a servant assisting the servants of the defendant, and that this circumstance brought the plaintiff’s case within the rule of non-liability. "The distinction,” said the court, "is refined, but it seems to be substantial, and we feel constrained to recognize it, and enforce it.” The fact that the plaintiff was a mere volunteer,. having no interest in the work which he undertook to assist the defendant’s servants in performing, -was the hinge on which the case turned, and defeated his right to recover. If the plaintiff had been sent to obtain the wheel, and, at their request or with their consent, had assisted the defendant’s servant^ in unloading it, in order to hasten or facilitate his own work, and had been injured by their negligence, his right to recover would undoubtedly have been sustained. As already -stated, the hinge on which the cases turn is the presence or 'absence of self-interest, or a self-serving purpose. In the one .ease, he is a mere volunteer — in the other, he is a person in the regular pursuit of his own business — a distinction very obvious .and substantial.
[567]*567Mr. Beach, in his work on Contributory Negligence, (sect. 120) says that where one assists the servants of another at their request, for the purpose of expediting his own business or that of his master, and be is injured by the servants’ negligence, the master is liable; that, in such a case, the relation of fellow-servant does not exist; and, in case of injury, the rule of respondeat superior applies.
Mr. Thompson, in his work on Negligence, (vol. 2, page 1045) says that, care must be taken to distinguish the case of a mere volunteer from that of one assisting the servants of another, at their request, for the purpose of expediting his own business or that of his master; for, in such a case, he will not stand in the relation of fellow-servant to them; and, if he is injured by their negligence, the doctrine of respondeat superior will apply, and their master will be responsible.
But, in the present case, it is urged by the learned counsel for the railroad company that the crew in charge of a gravel train have no authority to make such a request, or give such consent, as will authorize the servants of the consignee to remove or assist in the removal of earth from the cars.
We do not think that such a want of authority exists. It seems to us that the persons having the charge of freight are the very ones to give such consent or to make such a request. And it has been so held, both in England and in this country.
In Wright’s Case, L. R. 10 Q. B. 298, it was so held. In that case Mr. Justice .Field said that the agent to deliver freight is the proper person to give consent for the consignee to assist in its delivery. That was the heifer case already referred to.
And in Lewis v. Railroad, 11 Met. 509, it was so held. In that case a truckman was permitted by one M’Coy to assist in the removal of a block of marble from a car. The truckman was allowed to take the car to the depot of another railroad company, and there, by the use of the latter's derrick, to make the attempt to lift the block of marble from the car and place it directly on his truck. But the attempt failed. The derrick gave way and the block of marble fell and Avas broken. This brought into litigation, directly and sharply, the authority of these [568]*568two servants,— one a servant of the railroad company and the other a servant of the consignee,— thus to change the place and manner of delivering freight. And precisely the same argument was urged against the authority in that case as is urged against the authority in this case. It was said that M’Coy was in no sense a general agent of the railroad company; that his only authority was to receive and deliver freight; that his authority being thus special and limited, his consent to change the place and manner of delivering the freight was not binding upon the company. But the court held otherwise. The court held that the place and manner of delivering freight may always be changed by the servants of the carrier and the servants of the consignee ;. that their authority to make such changes is included in their authority to receive and deliver freight; that if the consignee of a bale of goods steps into a car and asks for a delivery there, and it is passed over to him, the delivery is complete. The rule established by the authorities seems to be this, that the persons having authority to deliver freight and the persons having authority to receive it, may always agree upon the place and manner of its delivery.
In the present case, the evidence tended to show that the railroad company, while engaged in grading a portion of its track in or near Portland, undertook to leave some earth at a point on the line of its road for Mr. Jose. Mr. Jose employed a contractor by the name of Shannahan to take the earth away. It appeared in evidence that, at the request of the railroad crew in charge of the gravel train, Shannahan’s men had assisted in dumping the earth left for Mr. Jose out of the cars ; and, on the day of the accident, when Shannahan’s men came for more earth, the earth had been left in the cars, and the railroad men had gone on to where they were delivering earth for the use of the railroad. Consequently, Shannahan’s men were obliged to dump the earth out of the cars themselves, or wait for an indefinite length of time for the return of the railroadmen. It was a cold day in December, and to wait would be neither comfortable for themselves nor profitable for their employer. And so, for-their own convenience and to facilitate their own work, Shannahan’s [569]*569men undertook to dump the earth out of the ears themselves. The decedent was one of them. The evidence shows that he was an experienced man at that kind of work. But one oí the cars was defective and had been improperly loaded, and it tipped over and fell upon him and inflicted the injuries of which, at the end of about seven months, he died.
The presiding justice instructed the jury that one who voluntarily assists the servants of another can not recover from the master for an injury caused by the negligence or misconduct of such servants; that one can not by his officious conduct impose upon the master a greater duty than that which he owes to his own hired servants; that care must be taken, however, to distinguish a mere volunteer from one who assists the servants of another, at their request, for the purpose of expediting his own business or that of his master ; for, in such a case, he will not stand in the relation of a fellow-servant to them, and, if injured by their negligence, their master will be responsible; that if the plaintiff' (Thomas Welch) consented to assist in dumping the cars, at the request of the railroad crew in charge of the train, to expedite or facilitate the work which he was engaged in performing for Mr. Jose, lie could not be regarded as such an intermeddler or volunteer as to preclude him from a recovery on that ground, provided the alleged negligence and injury were made out in other respects ; nor could he be regarded as a fellow-servant with the employees of the railroad, so as to preclude him from a recovery on that ground.
These instructions were several times repeated, and not always in precisely the same words; but such were the substance and effect of the instructions.
Counsel for the railroad company profess to be greatly alarmed at the consequences of such a doctrine. What, they ask, will be the limit of such a power? Where will the line be drawn? And they profess to believe that if such a power is conceded to the persons in charge of a gravel train, then the engineers of freight and passenger trains may turn over tlieir engines to inexperienced persons, and the property and lives of the whole community be put in jeopardy. To thus enlarge and magnify [570]*570the consequences of a ruling may be an ingenious mode of argument, but we do not think it is sound. It does not follow that because the crew in charge of a gravel train may allow the servants of a consignee to assist in removing earth from the cars that, therefore, the engineers of freight and passenger trains may turn over their engines to inexperienced hands. We give no countenance to such a doctrine. Our decision goes no farther than to hold that the persons having the charge of freight-may allow the servants of the consignee to remove it from the cars, and that the latter, while so engaged, have a right to be protected against the negligence of the former. In other words,that, in such cases, the rule of respondeat superior applies.Such a doctrine seems to be well sustained by authority, and we believe it to be sound.
II. We will now consider the motion. It is the opinion of the court that the jury were properly instructed, and that the evidence was sufficient to justify a verdict for the plaintiff; but we think that the damages assessed by the jury, ($8000) were clearly excessive. When one is negligently injured, and he dies immediately, the largest amount recoverable is $5000. The amount may be less, but never more. If the person injured survives for a considerable length of time, this limitation does not apply; or, rather, did not, when this action was tried. What the rule may be under the recent statute, (Act of 1891, c. 124) will not now be considered. But we think this statutory limitation, whether applicable to the particular case under consideration or not, is entitled to consideration in determining whether or not a verdict is excessive. The damages recoverable for negligently causing the death of a person must in every case depend largely upon what would probably have been the earnings, of the deceased if he had not been killed. Other elements enter into the calculation; but the earning capacity of the deceased is always an important factor. The death of one capable of earning a large income is necessarily a greater loss to his estate than the death of one capable of earning only a small income. The earning capacity of the deceased in this case must have been small. He was not a skilled workman. [571]*571His only employments had been working in sewers and shoveling gravel. This appears from his own deposition taken before his death. And notwithstanding he was an unmarried man, and had no one dependent upon him for support, and twenty-three years of age, he had not saved a dollar of his earnings. We feel justified, therefore, in assuming that his earning capacity was small. Possibly, if he had lived, he might, later in life, have developed a capacit}’ for more lucrative employments. Probably not. And, in estimating the loss to his estate, caused by his death, we must be governed by probabilities, not possibilities. Probably, if the deceased had not been injured, and had lived to the common age of man, he would have left but little, if anything, to his surviving relatives. It seems to us that in such a case the damages recoverable for the benefit of surviving relatives ought to be comparatively moderate; that if, under our law, no more than $5000 is recoverable for the negligent killing of a skilled workman, capable of earning a large income, when his death is immediate, a verdict of $8000 for the death of an unskilled workman, capable of earning only a small income, must be regarded as clearly excessive, though, as in this case, he survives his injuries some six or seven months. Influenced by these considerations, we think a new trial must be granted, unless the administrator remits all over $5000. If such a remittitur is entered upon the clerk’s docket, the entry will be,
Motion and exceptions overruled.