
    Street Railway Company v. Bolton.
    
      Negligence — Master and servant — Injury to passenger while assisting driver of street ear.
    
    The plaintiff was a passenger on defendant’s street railroad, on a car northward bound. The railway was a single track, with occasional sidetracks for the passage ot cars moving in opposite directions. The north-bound car, having been drawn beyond the side-track, where it was to have met the south-bound car, it became necessary to push it back to the side-track, so that the cars could pass and each proceed to its destination. At the request of the driver of the north-bound car, the plaintiff assisted him in pushing the car back to the side-track. While so engaged, without fault on his part, he was injured by the carelessness of defendant’s driver on the south-bound car Held:
    
    1. The plaintiff did not engage m the service ot defendant as a mere volunteer.
    2. Under the circumstances the plaintiff can not be considered as a fellow-servant with the driver ol the south-bound car
    3. In the case stated, the doctrine of respondeat superior applies.
    Error to the District Court of Muskingum county.
    On the 28th of April, 1879, the Mclntire Street Railway Company, the plaintiff in error, was the owner of, and operating a street railroad in the city of Zanesville. The railroad was constructed of a single track, with occasional side-tracks, whereby cars drawn by horses moving in opposite directions were enabled to pass. On the day named the defendant in error was a passenger on one of the cars going northward. This car having been driven past the side-track, where it should have passed the south-bound car of plaintiff iu error, it became necessary to push the northbound car backward to the side-track so that the southbound car could pass, and thus enable each car to proceed to its destination. At the request of the driver of the north-bound car, on which Benjamin Bolton, the defendant in error, was a passenger, he assisted the driver to push the car backward on the side-track, and while so engaged he, defendant in error, was injured by the carelessness and negligence of the driver of the south-bound car, while engaged in the business of the plaintiff in error, and without any fault or negligence of the defendant in error.
    Eor this injury the defendant in error brought his action against plaintiff in error in the court of common pleas of Muskingum county, and recovered a verdict and judgment.
    On the trial the court refused to instruct the jury that, “ if they find that the plaintiff, without the knowledge or consent of the defendant, volunteered to assist the driver of the north-bound car in the performance of his duties as such driver, the plaintiff thus volunteering to assist, whether with or without request of such driver, would for the time being stand in no better relation with respect to defendant’s liability, than would a servant of the defendant, and would assume the risks incident to such service; and that the plaintiff, while thus'assisting such driver, can not recover damages resulting to him from the negligence of the driver he is assisting, or from the negligence of the driver of the south-bound car, provided they were persons possessing ordinary care and skill in their employment, and one not superior in authority to the other; that an employer is not liable in damages to an employe for injuries resulting to such employe from the negligence of a co-employe not superior in authority, and to whom the employe injured did not owe obedience, if such employes possessed ordinary care and skill in their'employment; and, if the plaintiff volunteered to assist the driver, as before stated, and while so assisting was injured by the negligenee of either of said employes, lie can not recover, for he assumes the risks incident to such undertaking, and does not stand in any better position in respect to defendant’s liability than did the employe he was thus assisting.” But did instruct as follows :
    “ That if the plaintiff was requested by the driver of the north-bound car to assist in pushing it back, and he did so assist, and in doing so was injured by the carelessness or negligence of the driver of the north-bound car or of the south-bound car, he can recover, if such assistance was apparently necessary. Or if there was an actual necessity for him to assist the driver in pushing back the north-bound car, and he did so assist, and while doing so was injured by the negligence of the driver of either car, he can recover, whether he was requested by the driver to assist or not.”
    . The district court affirmed the judgment of the common pleas.
    This proceeding is prosecuted to reverse the judgments of the courts below.
    ■ In refusing to give the instructions requested and in the charge as given, the plaintiff in error alleges the court of common pleas erred, and that the district court erred in affirming the judgment below.
    
      Frank H. Southard, for plaintiff in error.
    
      Evans $ Beard,, for defendant in error.
   McIlvaine, C. J.

It is undoubtedly a well established principle of law that a master who is guilty of no carelessness in. employing servants is not liable to one for injuries caused by the carelessness of a fellow-servant, while both are engaged in the common service, and no relation of subordination exists between them. In such case each servant assumes the risk of injuries from the carelessness of fellow-servants.

,It is also well settled that a person who without any employment voluntarily undertakes to perform service for another, or to assist the servants of another in the service of the master, either at the request or without the request of such servants, who have no authority to employ other servants, stands in the relation of a servant for the time being, and is to be regarded as assuming all the risks incident to the business.

But it does not follow that under all circumstances a person who assists the servants of another in the discharge of their duties, without employment by the master, is to be regarded as voluntarily assuming the relation of a fellow-servant, or the risks pertaining to that relation. To illustrate; suppose a servant in driving his master’s team on the highway founders in such a manner as to prevent the use of the highway by others for the time being. Another person, who is thus impeded in the use of the road, assists the servant, either with or without request, to remove the impediments to travel from the highway. Such other person does not thereby become the fellow-servant of the driver. Indeed, in no just sense, has he voluntarily entered the service of the master. And the rule of law first above stated does not apply to the case supposed, and therefore it, was not error in the court of common pleas to refuse it.

The law of the case was properly given in the charge.

The plaintiff in the court of common pleas was not a mere volunteer, within the meaning of the rule of law contended for by plaintiff in error, but, as a passenger on the north-bound car, -was interested in having it driven to its destination. To this end it was necessary to pass the southbound car. This could only be accomplished by pushing-the north-bound car back upon the siding. In doing this, although it may not have been absolutely necessary for the passeuger to assist the driver, it was a prudent and reasonable act, justified by the circumstances of the case; not a wrongful interference and intermeddling with business in which he had no concern. It. was not, in fact or in law, an assumption of risk from the carelessness of the defendant or any of its servants.

The law in this case is well stated in Wright v. The London and N. W. R. R. Co., 1 Q. B. Div. 252.

That case was this: “The plaintiff sent a heifer (which was put into a horse-box) by defendants’ railway to their P. station. On the arrival of the train at the station, there being only two porters available to shunt the horse-box to the siding, from which aloue the heifer could be delivered to the plaintiff, iu order to save delay he assisted in shunting the horse-box, and while he was so assisting he was run against and injured through a train being negligently allowed by the defendants’ servants to come out of the siding. There was evidence that the station-master knew that the plaintiff' was assisting iu the shunting, and assented to his doing so: Held, affirming the decision of the queen’s bench, that the plaintiff was not a mere volunteer assisting the defendants’ servants, but was on the defendant’s premises, with their consent, for the purpose of expediting the delivery of his own goods; and the defendants were therefore liable to him for the negligence of their servants, according to the principle of Holmes v. North Eastern Ry. Co., L. R. 4 Ex. 254; 6 Ex. 123.”

Judgment affirmed.  