(after stating the facts). The controverted questions of fact are settled by the verdict in favor of appellee. Did the court declare the law in the following instruction : “ (2) That if you believe that Douis Dial got on the cars of the defendant, at the request of Hensley, to unset the brake of said car, and that Hensley knew at the time, or had sufficient time and opportunity to know, and ought to have known, that plaintiff, when standing on the top of one of the defendant’s cars, could not pass under the iron bridge without injury to himself, and did not warn plaintiff of the danger, and that plaintiff had no knowledge of the danger of his position on said car, you should find for the plaintiff in such sum as is warranted by the evidence, if you believe that Hensley had authority to employ the boy for said purpose, or that said employment came within the scope of his authority?”
The evidence as to the conductor having no express authority to employ brakemen was not disputed.
Other instructions, conveying the same idea as to the authority of the conductor and the duty of the company, were given, and this seems to have been the theory upon which the case was tried. Another instruction was given which told the jury, “if the conductor acted within the apparent scope of authority, etc." d The conductor of a railway train by virtue of his employment has, ordinarily, no authority to bind the corporation by a contract. But as he is invested with authority to control all the movements of the train, and is bound to look out for the safety and reasonable comfort of the passengers, exigencies may arise in which, by virtue of his position, he may make contracts which would be binding upon the corporation, where they became indispensably necessary for the performance of his duties.” Wood on Railways, 449. ,
The proof shows that the conductor had no power to employ brakemen. The extent of his express authority was to control the movements of his train with such subalterns as were furnished him by the superintendent, who “employed all men working on all trains” of the company. As the agent of the company, to the conductor was delegated the power to control the movements of his train. To effectuate this main purpose which the corporation had in view in his employment, he would have the implied authority to do all things reasonably necessary. Mechem on Agency, 281, 311.
No exigency had supervened, no urgent circumstances were shown; nothing to call for the exercise of implied authority.
But the company would be liable, notwithstanding the conductor, in calling upon appellee, acted contrary to positive instructions, if in so doing he was within the scope of authority which it had caused or permitted him to appear to possess, i. e. the apparent scope of his authority. But here again the proof fails to show “any direct act, negligent omission, or acquiescence” on the part of the company that could be legitimately construed by appellee or any one else as conferring power upon conductors to call in boys to the assistance of the regularly employed brakemen of the company.
The application of principles, fundamental and axiomatic, concerning the express, implied, or apparent authority of ag'ents to bind their principals, to the case under consideration, very clearly fixes the status of the appellee to appellant, and determines the degree of care which the latter must exercise. This boy was not of such a tender age as to be incapable of exercising ordinary care and reasonable diligence for his own protection. He was ten yards . away, and under no obligations or restraint to obey the commands of the conductor. He was too diligent to hear and accept the invitation of one who had no authority to invite him. His assistance was not needed, and, in thus going where he had no right to be, he became technically a trespasser. The appellee then owed him no positive duty of care, and only the negative duty not to injure wilfully, wantonly, or by gross negligence. The law governing this case, as thus announced, will be found supported by the following authorities : Eaton v. Delaware, etc. R. Co. 57 N. Y. 382 ; Fleming v. Brooklyn R. Co. 1 Abbot’s N. C. 433 ; Kentucky Central R. Co. v. Gastineau's Admr. 83 Ky. 121 ; Duff v. Allegheny R. Co. 36 Am. Rep. 675 ; New Orleans, etc. R. Co. v. Harrison, 48 Miss. 112 ; cases cited in Pierce on Railroads, 370 ; St. L., I. M. & S. R. Co. v. Bennett, 53 Ark. 208 ; Flower v. Pa. R. Co. 69 Pa. St. 216 ; Georgia Pac. R. Co. v. Propst, 4 So. Rep. 711 ; Snyder v. Railroad Co. 60 Mo. 415 ; St. Louis, I. M. & S. Ry. Co. v. Ledbetter, 45 Ark. 246 ; Osborne v. Railroad, 68 Me. 49 ; Thompson on Negligence, 1045 ; Degg v. Midland R. Co. 1 H. & N. 773.
The learned counsel for appellee in his exhaustive brief, which we have fully examined and considered, has' based his able argument upon hypotheses not justified by the evidence, and the court below erred in adopting that view of the law upon the facts proven. It is unnecessary to pass upon the other points presented, as the case was tried upon the theory above discussed.
Reversed and remanded.