[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 101 There can be no doubt, that had the plaintiff been a traveler upon the public highway, whose course took *Page 102 him on this occasion across the track of the defendant's road, he would with like lack of look-out for a coming train have been so chargeable with contributory negligence, that he could not have maintained an action for the injury which he received. There is little doubt, that had he been a servant of the defendants under ordinary circumstances, he would have been like chargeable; nor is there doubt, that had there been other facts added, to those which were shown and which in the case of a traveler or an ordinary servant were probably enough to make out contributory negligence, but that there would have been the same result. Thus if he had seen or heard the train approaching, or had been warned of its coming in time to avoid it, and had made no attempt thereto, or if he had been under the duty to have watched for it, he would have been culpably negligent; so that the case comes to the questions: 1st. Whether the contract between him and the defendant's foreman was, that the latter should "let him know the time the trains would come." 2d. Whether the foreman had the authority to make that contract. And, 3d. Whether if made with authority it excused him from looking and listening for the coming of a train. 1st. The jury have found that there was such a contract; and on testimony which, though contradicted, will sustain the finding. 2d. As to the authority to make it; it is first to be observed, that there was no written or indeed formal parol appointment of the foreman, by which his duties and powers were specifically or distinctly marked out. The foreman's appointment to his place was by parol in a general way, and somewhat of the extent of his authority is to be got at by implication, from the powers confessedly given, and from the adoption or recognition of previous acts, and from the nature and extent of his usual employment. The authority of an agent is always construed to include all the necessary and usual means of executing his duty to his principal with effect. The foreman in this case was charged with the duty of clearing the track of snow, and it was usual for him to do this with men hired by him temporarily for the purpose and paid ultimately by the defendant. It is to be *Page 103 inferred, that at the place of the accident this was effected by the use of a scraper drawn by horses and handled by men. It is not to be doubted, but that he had power to employ for the company a man and his horses for the work, nor but that he had power to engage for the company that the man employed should receive a reasonable compensation for his and their labor, nor but that he had power to engage for the company, to any other extent rendered necessary and proper under the circumstances of the case, to effect with reasonable speed and completeness the primary object of keeping the track in fit condition for the movement of trains, with authority to hire men and teams and to pay for their services. It cannot be doubted but that he had authority to suit the rate of compensation to the exigencies at the time of hiring, and that whatever rate be engaged for, which was reasonable, necessary and proper, under the circumstances of the case, the company would be bound to pay. It cannot be different, where the necessities of the occasion required of him an engagement, enhanced in degree by an exchange of service, instead of by an increase in moneyed compensation. The transaction was in mid-winter, it was on a stormy day, the snow was falling, and flying before the wind, the place of labor was directly upon the tracks where trains passed frequently, the plaintiff was ignorant of the times for the passage of them, he was unused to the labor requested of him, and for that reason unwilling to undertake it, he was the only man who was out that day with a team, and hence any terms not unreasonable which he fixed for his labor were to be complied with. It was not unreasonable under these circumstances, that he should be paid in money the value of his services, and that he should be relieved of his apprehension of danger from the trains, and of the care of watching for them. They were the only terms upon which any labor of man and beast could be got. This was an agreement which the defendant could have made with him, and one which it would not have been unnatural or unreasonable for him to stipulate for, nor for it to accede to. It was one which any agent of defendant, duly authorized thereto, might *Page 104 reasonably accede to. As the necessity for the work to be done existed, as it was a work which it was the duty of the foreman to have done, as the plaintiff was the only one whom he could procure to do it, it seems that it was an incident, to his duty to have the work done and to his general authority to use the necessary and proper means therefor, to make the agreement with the plaintiff not only for the compensation for his labor, but for his protection from danger. It is quite apparent from the facts which have been stated, that there was need for being on the lookout for coming trains, and that the care of being on the lookout would interfere with the steady and constant progress of the work undertaken; it was not unreasonable then for the foreman to take upon himself the duty of warning the plaintiff of the coming of the trains, for which from his experience upon the track and his knowledge of the time-table, and of all the usual signs of approach and passage of trains, he was much the better fitted; nor was it unreasonable for the plaintiff to rely upon the greater knowledge and judgment of the foreman in this respect, and upon his present ability to do it, by reason of his freedom from other occupation. It seems to me, that the engagement of the foreman with the plaintiff was, from the necessity for it and from its reasonableness, one which was within the scope of his general authority, as a natural means of fulfilling the important duty with which he was charged. 3d. As the engagement was binding upon the defendant, I think that the plaintiff had a right to rely upon it, and that he was not required by his duty to the defendant to be on the lookout for the coming of their trains. So the contract of the defendant is to carry a passenger safely to his destination on its line, and he need not inspect before entering its car, whether it is in good state for the journey. He has their promise that it shall be so, and upon that he may rest until he in fact perceives defect. The plaintiff was in the same position. He had engaged with the defendant for another to look and to listen for him, who was better fitted for the task, and he had a right to go on without apprehension with the labor he had bargained to do. Had he seen or heard or *Page 105 been told of a train coming, it would have been his duty to have tried to avoid it, but it was not his duty to look and listen for it.
These views lead to an affirmance of the judgment with costs.
All concur.
Judgment affirmed.