As was stated before, neither defendant nor defendant's agent ever employed Langan. To Brennan no authority to employ extra help, or to select individuals to make repairs, or to improve the running of the elevator, was ever intrusted. The mere circumstance that three months before he had invited his brother-in-law to remedy the sparking at the commutator, and had told Talmadge he did so, to which the latter did not object, is not sufficient evidence of authority to employ an additional temporary servant to help do the master's work. The plaintiff's counsel submits the following proposition:

"Where the services are rendered by request of the man in charge, though the person assisting expects no pay, and is employed for a mere temporary purpose, he is for the time being a servant, and entitled to the same protection as any other servant."

The cases cited on the brief, however, do not support this broad statement. Railway Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333, 54 Am. Rep. 803; Degg v. Railway Co., I Hurl. & N. 773, and Potter v. Faulkner, 31 Law J. Q. B. 30, have been referred to supra. In Bradley v. Railroad Co., 62 N. Y. 99, the track master, who engaged plaintiff to scrape snow with his team, had express authority to hire extra help when occasion required. The language of the proposition in the brief is evidently taken from Johnson v. Water Co., 71 Wis. 553, 37 N. W. 823, 5 Am. St. Rep. 243, where the court says:

"Plaintiff was engaged in defendant's work at the request of the man in charge of the work; and although it may be said that he was working for a mere temporary purpose, and that the plaintiff was not expecting any pay for the work done, and in that sense the employment was voluntary, still, being in the defendant's employment at the request of its servant or foreman, he was not a trespasser, and he was at the time being the servant of the defendant, and entitled to the same protection as any other servant of defendant, and probably subject to the same risks of injury from the negligence of his fellow servants."

In that case plaintiff was in the employ of contractors who were digging a ditch for defendant. Other men were in the same trench, laying pipe and calking it for defendant. He was called by one George G. to help them, and the accident happened apparently because an insufficient force was employed in the laying and calking. But it should be noted that the case came up on demurrer, and the complaint alleged that one "Pooley was the superintendent of said defendant, and as such superintendent had charge of said work of calking, and employed men to do such work, and when he was off George G. was authorized by Pooley to have control of the work and of the men who were assisting in such work." In Wiggett v. Fox, 11 Exch. 832, it was held that a subcontractor and his servants were the fellow servants of workmen employed by the contractor. In Warburton v. Railway Co., L. R. 2 Exch. 30, the porter of a railroad company was held not to be the fellow servant of an engine driver of another railroad, both roads using the same station. In Abraham v. Reynolds, 6 Jur. (N. S.) 53, it was held that the servant of a carter who called to receive a bale of cotton and brought the rope with which to lower it was not the fellow servant of the employés of the owner of the bale who undertook to lower it. In Railroad Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356, the injured person was defeated on the ground of contributory negligence.

The last case cited to sustain the proposition that the request of an unauthorized servant is sufficient to transform a volunteer into a servant supports no such proposition. A fireman, acting as engineer on a railroad train, which was at a water station, asked a young boy to turn on the water. The boy was climbing on the tender to put in the hose, when other cars struck the car attached to the engine and knocked him off. The court said:

"In climbing the side of the tender at the request of the fireman, to perform the fireman's duty, he did not come within the protection of the company. To recover the company must have come under a duty to him which rendered his protection necessary. 串 * *. The boy was where he had no right to be, and where he had no right to claim protection,-where the company was in use of its private ground, and was not abusing its privileges, or trespassing on the rights or immunities of the public. The only apology for his presence there is the unauthorized request of one who could not delegate his duty, and had no excuse for visiting his principal with his own thoughtless and foolish act." Flower v. Railroad Co., 69 Pa. 210, 8 Am. Rep. 251.

To

To the same effect is Rhodes v. Banking Co., 84 Ga. 320, 10 S. E. 922, 20 Am. St. Rep. 362, where brakemen asked a boy to help them pull a car, and he did so. "The plaintiff's son," says the court, "was not a fellow servant with the servants of the defendant in error. be the servant of another, there must be some contract or some act on the part of the master which recognizes the person as a servant, either express or implied." In Everhart v. Railroad Co., 78 Ind. 292, 41 Am. Rep. 567, plaintiff was returning home along & street intersected by defendant's tracks on which several flat cars were slowly moving. An employé of defendant, who was employed about such tracks, requested plaintiff to get upon one of said cars and apply the brake. He did so, and was injured. The court says:

*

*

*

"If the plaintiff were to be regarded as having been the servant of the defendant, it would seem that he could not recover for the injury caused by the negligence of his fellow servants. But it seems to us that he cannot be regarded as having been the servant of the defendant. He was not requested or directed to man the brake by any one that is shown to have had authority from the defendant to make such employment. The plaintiff was a mere volunteer, consenting, at the request or direction of the defendant, to perform service which should have been performed by the employés themselves, and, while he cannot be regarded as an employé, he is in no better condition than if he had been. Nor is he in any better condition legally than if he had been a mere intermeddler, undertaking to perform the service without request or direction from any one, because, as we have seen, he was not requested or directed to get upon the car and apply the brake by any one having power from the defendant to authorize him to do so. The defendant owed him no duty either as an employé, passenger, or traveler upon a highway crossed by the railroad. Under the circumstances, the authorities above cited make it clear that the defendant is not liable. If there had been an urgent necessity for some one other than an employé of the defendant to get upon the car or cars and apply the brakes, in order to prevent a destruction of human life or valuable property, possibly the case might be different, but no such necessity was shown."

See, also, Church v. Railway Co., 50 Minn. 218, 52 N. W. 647, 16 L. R. A. 861. In that case plaintiff was requested by the head brakeman of a wrecking train to assist in switching the cars. The court held that it "was necessary for the plaintiff to establish, as the essential foundation of his right to recover, the existence of the relation of master and servant between himself and the defendant company,

and this, in turn, depended upon the authority of the head brakeman to employ him to assist in the switching." It says:

"In our opinion, none of the evidence introduced or offered had any tendency to prove any such relation between plaintiff and defendant, or any such authority on the part of the head brakeman. The fact that plaintiff had been or was in the employment of the defendant elsewhere is wholly unimportant. He was not at the station on defendant's business. He was not an employé of defendant at that place or as to the switching of that wrecking train. The case stands precisely as if the head brakeman had called on any other bystander at the station to assist. While the head brakeman had charge of the movements of the train in doing this switching during the temporary absence of the conductor from the cars on other business, yet this was the entire scope and extent of his authority. The conductor had not abdicated the general charge and control of the train or turned it over to the brakeman. The latter had no authority, actual or apparent, express or implied, either from custom or from any present pressing emergency, to employ additional brakemen, either permanently or temporarily. It was wholly immaterial whether two brakemen were or were not sufficient to do the switching. Even if they were not, that fact would not, under the circumstances, give a mere brakeman authority to employ an additional force. If any one on the ground had any implied authority to do so it was the conductor, who had charge and control of the train. In doing what he did the plaintiff was, therefore, a mere volunteer, and as such assumed all the risks incident to the position. The defendant did not bear to him the relation of master or employer, and owed him no duty as such."

In Morris v. Brown, 111 N. Y. 318, 18 N. E. 722, 7 Am. St. Rep. 751, plaintiff's intestate was an engineer, who, when going to inspect the tunnel for the Croton aqueduct, rode (as he often had ridden before) on a returning dump car of the defendants, who were excavating the tunnel. Eventually this turned out to be an unsafe way of getting to his destination. In the opinion is found the following:

"Plaintiff did not acquire any right to be upon the car through any consent or act or acquiescence on the part of the defendants. The brakeman of the car had known it, but neither his knowledge nor assent could bind defendant. He was not their agent for that purpose. It is a general proposition that a master is chargeable with the conduct of his servant only when he acts in the execution of the authority given him. *** In the case before us the brakeman was never told or authorized to carry any person. and if he acquiesced in, or by silence consented to, the intestate's going in upon the cars, there is no evidence that in doing so he was acting in the line of his duty or within the scope of his employment. The deceased bad, in fact, ridden upon the car. He had done so under no other permission,-a volunteer, but in safety. In each instance, however, he must be deemed to have assumed the risk, and this last time he was unfortunate. The consequences of that misfortune should not be thrown upon the defendants."

It will be remembered that the only negligence charged upon defendant in the case at bar is the failure to keep the hanger securely affixed to its place, or to discover from reasonably careful inspection that it was loose and likely to give way under strain. This measure of active vigilance to secure a safe place to work in and safe appliances to work with may be required of the master by the servant he has employed, but is not due to a stranger. A leading case in this state is Larmore v. Iron Co., 101 N. Y. 393, 4 N. E. 752, 54 Am. Rep. 718. There plaintiff went upon premises of defendant to solicit employment. He passed near a piece of machinery for raising ore. The machine was defective, and by its breakdown while he was near it he was injured. He insisted that defendant was negligent in omitting to take

affirmative measures to ascertain and remedy defects. The court held that as to persons standing in certain relations to defendant a duty rested upon the company to exercise reasonable care in the maintenance and reparation of the machine; "but the plaintiff stood in no such relation to the defendant as imposed upon it the duty to keep the machine in repair. He was in every legal sense a stranger to the defendant. * * * There is no negligence, in a legal sense, which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons and not as to others, depending on peculiar relations and circumstances. In the case before us there were no circumstances creating a duty on the part of the defendant to the plaintiff to keep the machine in repair. * * *The machine was not intrinsically dangerous. The plaintiff was a mere licensee. The negligence, if any, was passive, and not active of omission and not of commission." The same principle is enunciated in Nicholson v. Railway Co., 41 N. Y. 529, where the court says:

* * *

"Plaintiff had an implied license to cross at that point, and hence he was lawfully there. He was not there by invitation of the defendant nor in the business of defendant. * * While he was lawfully there he had no right, as against the defendant, to be there. It could at any time have revoked the license. * Defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. It had no right intentionally to injure him, and would be liable if it needlessly or carelessly injured him while performing its own business. It owed him a duty to abstain from injuring him either intentionally or carelessly, but it did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission."

In our opinion, the direction of a verdict in favor of defendant was correct, and the judgment is affirmed.

NOTE.

Liability of Employer for Injuries to Volunteers.

1. In General.

[a] (Ill. Sup. 1892) Where a coal miner, who has quit work, and been paid off, goes to work again at the mine with the knowledge of the superintendent in charge of the work, and without objection from him, he is in the service of the mine owners, even though they are not aware of his resuming work.-Catlett v. Young, 32 N. E. 447, 143 Ill. 74.

[b] (Ind. App. 1897) That plaintiff was rendering services on defendant's train as brakeman, with the "acquiescence, knowledge, consent, and permission of the conductor," does not render him a servant of defendant, so as to entitle him to recover damages as such.-Stalcup v. Railway Co., 45 N. E. 802, 16 Ind. App. 584. [c] (Mass. Sup. 1887) No action lies in the case of one who volunteers to perform service for a railroad corporation, and is killed while walking upon the track, in the performance of such service, where the evidence shows a want of due care on his own part.-Barstow v. Railroad Co., 10 N. E. 255, 143 Mass. 535.

[d] (Minn. Sup. 1900) A person who voluntarily assumes to act as a baggageman on a railroad train cannot recover for injuries received by defective appliances.-Wagen v. Railroad Co., 82 N. W. 1107, 80 Minn. 92.

[e] (Miss. Sup. 1873) A corporation is not liable for injuries received by a person through the negligence of its servants while such person was voluntarily engaged in the business of the corporation without its knowledge or consent, unless the servants of the company acquiesced in his performing the work in question.-Railroad Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356.

[f] (Ohio Sup. 1885) Plaintiff, a passenger on a street car, assisted in pushing the car onto a side track for the purpose of allowing another car to pass, and in doing so was injured by the negligent driving of the passing car. Held, that plaintiff did not engage in the service of the street railroad company as a mere volunteer, so as to relieve it of liability for his injuries.Railway Co. v. Bolton, 1 N. E. 333, 43 Ohio St. 224.

[g] (Tex. Sup. 1895) Plaintiff's husband was an employé of a coal company, and was engaged in loading coal from an elevated platform, through a chute, to a car on defendant's tracks. The chute was so applied to the car that any abrupt movement of the latter would injure it. Defendant caused a "flying switch" to be made, with great speed, from the main track to the side track upon which the car was being loaded. Plaintiff's husband, whose duty it was to protect the chute, not appreciating the speed of the approaching cars, climbed on an intervening box car to set the brakes and intercept the collision with the coal car, and was thrown down by the collision and killed. Held, that plaintiff was not prevented from recovering on the ground that he was a volunteer servant of the railroad company.-Railway Co. v. Duncan, 32 S. W. 878, 88 Tex. 611.

2. Authority of Employés.

[a] (U. S. C. C., Mo., 1887) A person who without pay assists as a brakeman in making up a railroad train by the direction or with the express permission of a yard master, who has authority to employ necessary assistants in his department, is not a trespasser, but a servant of the company, and it will be liable to him for an injury resulting from a defective brake.-Central Trust Co. v. Texas & St. L. Ry. Co., 32 Fed. 448..

[b] (Ala. Sup. 1887) The conductor of a freight train has implied authority, in case of the sickness of one of his brakemen, to employ a person to take his place, so as to render the railroad company liable for its negligence resulting in the injury of such person.-Railway Co. v. Propst, 3 South. 764, 83 Ala. 518; Id., 4 South. 711, 85 Ala. 203.

[c] (Ala. Sup. 1887) A railroad is not liable for injuries to a passenger while acting as brakeman, under the orders of the conductor, whom he was under no obligation to obey, and by whom he was not employed for that purpose.-Railway Co. v. Propst, 3 South. 764, 83 Ala. 518.

[d] (Ala. Sup. 1890) Plaintiff, switchman for defendant, “off duty" boarded one of its trains of his own accord, and was ordered by the conductor to turn a switch. Held, that the conductor had no implied authority to make such command, and the mere act of obeying it did not constitute plaintiff defendant's employé.-McDaniel v. Railroad Co., 8 South. 41, 90 Ala. 64.

[e] (Ark. Sup. 1893) Where a railroad company has not given its conductor express authority to employ help, nor clothed him with apparent authority, and there is no exigency requiring extra help, a boy of 15, who willingly obeys his request to assist on a car, is a trespasser, and, if injured, cannot recover from the company, in the absence of willful or gross negligence.Railroad Co. v. Dial, 24 S. W. 500, 58 Ark. 318.

[f] (Cal. Sup. 1889) It appeared that deceased, being a competent engineer, with the knowledge and consent of B., entered a locomotive to assist in running it; that a bridge gave way under the locomotive; that defendant was aware of the defective state of the bridge, and did not prevent the trip: that B. was defendant's foreman, conductor, and assistant superintendent, and started his trains; that he alone organized the trip; that defendant knew the train would move under B.'s general supervision, and that, there being no regular engineer on the line, he believed B. would secure the serv ices of one. Held, that B. had authority to employ an engineer, and that plaintiff could recover.-Davis v. Button, 18 Pac. 133, 20 Pac. 545, 78 Cal. 247. [g] (Ga. Sup. 1888) Plaintiff placed himself under the orders of the conductor of defendant's train to work his way, instead of paying his fare as a passenger, and without the conductor's instructions he took orders from a Irakeman to couple a car to the train and was injured while doing so, the injury being due to the temporary effects of cold weather on the coupling. and not to any fault or negligence of the employés of the company. Held. that he was a volunteer in the work and could not recover.-Sparks v. Railway Co., 8 S. E. 424, 82 Ga. 156.