
    Pennsylvania Company v. Gallagher.
    Where an employe of a railroad company, rightfully engaged in the repair of a freight car belonging to his employer, calls upon his son, a minor under eleven years of age, to render him necessary temporary assistance in the work, and the son, while so assisting, without any negligence on his part or 6n the part of his father, is injured through tiie negligence of the agents and servants of another railroad company in backing a train of cars upon a side-track where the ear is being repaired, the latter company is liable, in an action by the son, for damages for the injury by him so received.
    Error to the District Court of Richland County.
    The original action was brought in the Court of Common Pleas of Richland County, by the defendant in error, Charles Gallagher, an infant, by his father, Daniel Gallagher, as his next friend, against the plaintiff in error, the Pennsylvania Company, to recover for injuries alleged to have been received, by him, through the negligence of that company, while he was assisting his father in repairing a freight car.
    On the 24tli of June, 1879, the Pennsylvania Company operated, as lessee, the line of railroad known as the Pittsburgh, Fort Wayne, & Chicago Railway, and which at Mansfield, Ohio, crosses the Baltimore & Ohio Railroad. The B. & O. Railroad Co. had five different tracks running nearly parallel with Main Street in that city. One of these tracks was known as the “ transfer track,” which, by means of a switch at the north end, was connected with the main track of the Pittsburgh, Fort Wayne, & Chicago Railway. At the south end of this transfer track, it was connected with the main track of the B. & O. Railroad. It was the only means of transferring cars from one of these railroads to the other.
    Daniel Gallagher, at the time his son was injured, was in the employment of the B & O. Railroad Company, as car inspector and repairer. He had a shop near this transfer track, and in 'the vicinity of the place where his son was injured. It was a part of the duty of Daniel Gallagher to inspect the cars coming into the yard of the B. & O. Railroad Company, and repair such as required repairs. His residence was about a mile from the shop; and, on the 24th of June, 1879, Charles Gallagher, his son, then a boy under eleven years of age, as had been his custom, carried his father’s dinner to the shop.
    There was standing on this transfer track a car loaded with coal, that had come over the B. & O. Railroad from Newark, and was waiting to be transferred to the Pittsburgh, Fort Wayne, & Chicago Railway. It needed repairs, It was in some manner broken underneath the car, where the draw bar is fastened. Daniel Gallagher did not know how soon the car would have to be transferred, and it was his duty to repair it before it left the transfer track. The north end of this track curves towards the west. North of this broken car, on the same transfer track, and between it and the Pennsylvania Company’s track, were standing eight or ten freight cars, completely hiding the view of the north end of this track from Daniel Gallagher and his son. The father, for the purpose of repairing the car, shovelled away the coal from over the bolts, got under the car with ’ his son, found a strap iron bent down, put his jack under it, and ivas raising it, and requested-liis son to assist him by holding a piece of Avood under it, Avliile the father forced it up against the iron. The father and son were both under the end of this car, engaged in the performance of this Avork, when a through freight train, belonging to the Pennsylvania Company, without signal of any kind, by bell or whistle, backed and threw on to the transfer trade six or eight cars, Avith such force as to strike with great force and violence against the freight cars that were so standing upon said track, and against the freight car that Avas so being repaired, and thereby caused the injury complained of by the defendant in error.
    It Avas claimed by the plaintiff, on the trial in the court below, that the defendant Avas negligent in not giving any signals of the intended use of the track on the occasion of the injury; and, also, that on that occasion the transfer track AAras being used in an improper manner by the Pennsylvania company.
    At the close of all the testimony offered by either party-in support of the issues joined in the cause, the defendant, among other requests, asked the court to charge the jury as folio avs : —
    “ Fourth. Even although the defendant varied from the usual manner of using this track in question, yet if the plaintiff Avas there not as.an employe of the B. & O. Co. he cannot complain of the negligence, unless you find that the defendants’ agents kneAv that he was there, and wilfully injured him. •
    “Fifth. The mere fact that his father took the plaintiff with him would not invest him with the capacity of an employé of the B. & O. Co.”
    The fourth and fifth charges the court gave to the jury, and added the following qualification to said fourth request: “ Gentlemen, if the plaintiff at the time he received the injury was wrongfully upon the track, then act upon this as the law.” To which qualification the defendant, by counsel, excepted.
    And to said fifth request the court added the following qualification: “This, gentlemen, is correct. But if you find that the defendant and the Baltimore & Ohio Company were each rightfully in the joint use and occupation of this transfer track, and the father of this plaintiff, then in the employment of the Baltimore & Ohio Company, duly authorized, was engaged in repairing a car upon this track; that the plaintiff brought to him his dinner, and that while engaged in repairing said ear, shortly thereafter, the father requested plaintiff to render him necessary temporary assistance to enable him (the father) to perform said work of repairing said car, — I will submit to you the question as to whether the father, under the facts of this case, was authorized to thus employ his son for the B. & O. Co., to assist him thus in the maimer shown by the evidence. If he was thus authorized to employ the plaintiff, then the plaintiff was rightfully upon the track.” To all of which qualifications the defendant, by counsel, excepted.
    The jury returned a verdict for the plaintiff. Judgment was entered accordingly. A bill of exceptions was taken embodying all the testimony, and on error the district court affirmed the judgment of the common pleas; to reverse which judgment of affirmance, a petition in error is filed in this court.
    
      Rush Taggart, for plaintiff in error.
    I. There was nothing to show the men in charge of the train of plaintiff in error that there was any one about the cars standing on the transfer track, and it was not incumbent upon those men to ascertain that no one was' there. Lehey-v. Railroad Go., 4 Robertson, 204; Railroad Go. v. McLaughlin, 47 111., 265.
    II. There is nothing in the evidence tending to show any authority from the B. & O. Co., on the father’s part, to employ any assistance of any kind whatever. There is nothing to show that such assistance was necessary even at that time. It does not appear that it was even known to any one of the B. & O. employés, except the father himself. Yet, with this total absence of testimony upon this essential question, the court modified the fifth request of the defendant, and submitted the whole question of authority to the jury. It was error thus to submit this question in the absence of any proof of the extent of the father’s powers. Tow anda Goal Go. v. Keenan, 86 Penn. State, 418.
    It surely cannot be contended that the mere fact of the father being an employé of B. & O. Company would give him this right, for the servant is an agent simply of his master, and the rule of the law and of the courts has always been to confine his agency to the limits of the authority conferred by the master. Wetmore v. L. M. R. R. Go., 19 Ohio State, 110; P. F. W. & Q. Ry. Go. v. Maurer, 21 Ohio State, 421; Plouier v. Pennsylvania R. R. Go., 69 Penn. State, 210; Luff v. Allegheny Valley R. R. Go., 2 A. & E. R. R. cases, 1; IF. O. J. £ Gr. W. R. R. Go. v. Harrison, 48 Miss., 112, reported in 12 American, 556; Fverhart v. T. II. ‡ I. R. R. Go., advance case from Indiana, reported in 4 A. & E. R. cases, 599; Sherman v. K. $ St. J. R. R. Go., 72 Missouri, 62, reported in 4 A. & E. R. R. cases, 589.
    The fact that two companies were occupying this track would not vary the rule laid down in the above cases. For, while a change in the method of use by either might authorize the other or those representing it, and upon the track by its authority, to make complaint of such unauthorized use, yet one upon the track without the lawful authority of either company would not have the right to complain, unless he was wantonly injured. Sutton v. JY. Y. O. JR. JR. Co., 66 N. Y., 243.
    Nor does the infancy of the plaintiff change the relation of the parties under the facts of this case. If he had been seen on the track, then his infancy should have been taken into account, in considering what should be done to avoid injuring.him. Moore v. P. R. R. Co., advance ease, Penn., reported in 4 A. & E. R. R. cases, 569 ; C. B. Sf Q. R. R. Co. v. Stumps, 55 Ills., 367; Philadelphia Reading R. R. Co. v. Spearen, 47 Penn. State, 303; C. £ A. R. R. Co. v. McLaughlin, 47 Ills., 265.
    This was not a public place, nor a place where persons were in the habit of passing and repassing at will, so that it is clearly distinguishable upon principle from the case of B. I. R. R Co. v. Snyder, 18 Ohio State, 399.
    
      Jenner <f Tracy, for defendant in error.
    On the proposition that Charles Gallagher was entitled to the same degree of care from the Pennsylvania Company that his father, an employé of said Baltimore and Ohio Railroad Company, had a right to demand, we refer to Wood’s Master and Servant, Sec. 455; Cumberland Valley R. R. Co. v. Myers, 55 Penn. St., 288; Begg v. Midland R. R. Co., 1 H. & N., 773; 40 JEnglish Law and Eq., 376; Abraham v. Reynolds, 6 Jur. (N. S.), 53; Shearman $ Redfield on Neg., Sec. 106; Little v. Summerlee Iron and Coal Co., 27 Jur., 135.
    Charles was not a trespasser, but was engaged in advancing the interests of the Baltimore and Ohio Company at a time and place that it was proper for him to be, and at the request of an employé of said Baltimore and Ohio Company, and could not have been negligently and carelessly injured by the Baltimore and Ohio Company, whose employé he became, much less by the Pennsylvania Company, engaged at the time in a wrongful use of that transfer track. Wilton v. Middlesex R. R. Co., T07 Mass., 108; 30 111., 9; Wood’s Master and Servant, Sec. 452, and the authorities cited by the author in the notes to said Sec. 455.
   Dickman, J.

It was the province of the jury to inquire' whether the transfer track was used in an improper manner by the Pennsylvania Company, at the time Charles Gallagher was injured; and whether the company, through its agents and servants, negligently, and without giving the usual or any signal or notice to him or to his father,, moved the ears upon the transfer track, and thus inflicted the injury received. Upon a careful examination of all the testimony disclosed by the record, we are not satisfied that the verdict of the jury was so clearly against the weight of the evidence, as to require that it should be set aside and the judgment reversed, unless the son was assisting his father under such circumstances, or the son’s conduct at the time was such, that ordinary care and prudence to prevent the injury could not be exacted of the company. Landis v. Kelly, 27 Ohio St., 567.

It is not neeessary to inquire, whether the son, notwithstanding his immature years, would be responsible for a failure to use the ordinary degree of care, as it is not claimed that there was any negligence on his part or on the part of his father,— if the father’s negligence could be imputed to him. But It is contended, that the same relations did not exist between the Pennsylvania Company and the son, which existed between that company and the father; that the same measure of duty was not owing by that company to the son which was owing to the father. Daniel Gallagher, it is said, was an employ^ of the Baltimore and Ohio Railroad Company, and was rightfully engaged in the line of his duty, while his son was not such an employé; that the father had no authority from his employer to call upon his son to assist him; and that the son rendered the required assistance at his peril, notwithstanding the Pennsylvania Company might fail to use ordinary care and prudence.

As appears by the evidence, Daniel Gallagher was the car inspector, and, in that capacity, the duty devolved upon him to attend to the repairing of cars. His employer must be regarded as having invested him with all the necessary powers incident to his employment. If A. employs B. to operate his factory, giving to him the entire charge over the same, fitun the nature of the employment, B. is vested with power to do such acts as may be necessary for the conduct of the business in which he is employed, in its ordinary and usual manner; as,, if machinery should break, to get it repaired, and generally to do any acts essential to the discharge of his duties, and the prosecution of the business usually intrusted to persons in his position. Wood's Law of Master and Servant, 500.

In the’ business of repairing the broken car, Daniel Gallagher was * authorized to bring to his aid any instrument or agency necessary to the proper performance of his work. ■ He availed himself of the necessary temporary assistance of his son, as he used other instrumentalities under his-control. Pie did not delegate to another a charge committed to himself personally, because of his acknowledged skill and fitness, but directed his son to render assistance which was merely mechanical, and under the supervising guidance and control of the father’s mind and will. Presumptively, Daniel Gallagher did not exceed his powers in Galling upon his son for temporary assistance; and, though a contingency might have been possible in which the Baltimore & Ohio Railroad Company might have raised a question as to the son’s right to recover of it, in an action for injuries received through his father’s carelessness, such possible contingency would not excuse a want of due care on the part of the Pennsylvania Company. Charles Gallagher was not a trespasser, nor wrongfully on the premises where he was injured. And we cannot reach the conclusion that he bore such a relation to the Baltimore & Ohio Railroad Company, that, while rendering needed assistance to that company, in compliance with the directions of its agent with such implied authority, he was placed beyond the pale of protection against the carelessness of the plaintiff in error.

In another aspect of this case, it would seem, that if the Pennsylvania Company could have recovered of the Baltimore & Ohio Railroad Company, for any injury received by it at the hands of Charles Gallagher, while. under his father’s direction and control, the son was not such a stranger to the service of the Baltimore & Ohio Railroad Company, as to debar him from all remedy for injuries suffered by him, through the negligence of the agents and servants of the Pennsylvania Company. That the Pennsylvania Company would have such right of action, is the doctrine of well-adjudged cases.

Simons v. Monier, 29 Barb., 419, was a case, in which the defendant owned a farm, his servant residing on it. In the course of farming, the servant cut a quantity of brush, and piled it in heaps, adjacent to the plaintiff’s land. He then sent his son, an infant, to set fire to it, and the fire extended to the plaintiff’s land, destroying a quantity of timber thereon. It was held, that the act of the son was the act of the father — the defendant’s servant, he being under his control; and that the defendant was liable. Although the act was done by the hand of the son, the hand was directed, guided, and controlled by the mind and will of the father. See also Althorf v. Wolfe, 22 New York, 355; Booth v. Mister, 7 Carr. & Payne, 66.

In the view which we take of this case, the defendant was not prejudiced by the qualifications added by the court to the fourth and fifth requests given in charge to the jury. We are therefore of opinion, that the judgment of the district court should be affirmed.

Judgment accordingly.  