Baltimore & O. R. v. Camp

65 F. 952 | 6th Cir. | 1895

TAFT, Circuit Judge,

after stating tlie case as above, delivered the opinion of the court.

Error is assigned to the ruling of the court below in permitting an answer to this question which was put to Keelty, the operator whose negligence caused the collision, “Why were you suspended indefinitely (that is, before the collision)?” Answer: “I went to sleep, and stopped a fast train, No. 6.” The question and answer were plainly relevant. The petition charged that the defendant company was guilty of negligence in the employment of Keelty, through whose gross neglect of duty the collision occurred, because he was careless, negligent, incompetent, and unfit for duty. The petition does not expressly charge that this negligence of the company caused the accident, but it was evidently inserted in the petition for this purpose. The case below was tried on that as one of the issues, and after a verdict and judgment it is too late to say that the petition is inartificially drawn. The fact that this operator, only a few months before, while on night duty, had gone to sleep, and had thereby stopped a train, which it was his duty to allow to pass, was most significant evidence upon the issue whether the company had been careless or not in his re-employment.

The second assignment of error is that the court refused to charge the jury to return a verdict for the defendant. In this the court was clearly right. Without respect to the question whether Keelty, the telegraph operator, could be considered the superior of Gamp, the engineer, under section 3 of the act of 1890, above quoted, there were two other issues upon which the case must have been submitted to the jury. The first was whether the company had been negligent in the re-employment of Keelty as night operator at Black Hand. The highly-responsible character of the duties of a night telegraph operator at a station upon a trunk-line railroad is too obvious to need much comment. The great degree of care, therefore, which the company must use in the selection of such agents, is also plain. Fidelity, watchfulness, ability to stay awake, promptness, knowledge of telegraphy, and a proper sense of responsibility, should all be present in such an agent, and the obligation upon the company to make proper inquiries concerning the presence or absence of these qualities in the person to be selected for the position must certainly be recognized by courts and juries alike. It has been emphatically recognized by the supreme court of the United States in the opinion delivered for that court by Mr. Justice Harlan in the case of Railway Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932. The trial court in that case charged that the position of a telegraph night operator upon a line of road was one of great responsibility, the lives of passengers and employés of trains depending on his skill and fidelity; that the company was under duty to exercise “proper and great care” to select competent persons for that branch of its service; and that the defendant was chargeable with notice of all facts concerning the fitness of such employés, which by reasonable diligence they might have known. This charge was objected to because the court used the expression “proper and great care,” instead of “ordinary care,” and for other reasons. The supreme court held that the objections were not well taken. It follows from this case that it was competent for the plaintiff to show the entire record of Keelty as a telegraph operator, whether the facts were actually known to the defendant company or not, because if they were facts of such a character that the defondant company might, by reasonable diligence, have known them (which was a cpiestion for the jury), then it ought to have known them. We therefore think that it was competent to show what Keelty’s experience had been with the Pennsylvania Company and other railroads, because it was for the jury to say whether sucli facts might not have been known by the Baltimore & Ohio Railroad Company, had they made proper inquiry. We are convinced, from an examination of the evidence, that it was ample for submission to the jury upon the issue whether the company had not been negligent in continuing Keelty in their employ as a night operator, —a boy of 18 years of age, — who, within a few months before the accident, had gone to sleep on duty. A verdict based on such evidence against a railway company, and the other circumstances here shown, a court would not be justified in setting aside.

Another issue which it was the duty of the court below to submit to the jury was the question whether the train dispatcher had not been guilty of negligence in the orders which he gave for the movements of the two colliding trains, No. 28 and No. 23. The train dispatcher, by the evidence in this case, had complete control for eight hours of the movement of all trains. He sent his dispatches in the name of, and in the stead of, the superintendent, who was absent from the office, and he was therefore at the head of the division for the operation of trains. It needs no argument to show that he was the superior of the engineer and conductor of train No. 28, within the third section of the act of April 2, 1890, quoted above, and that under that act the railroad company was liable for his negligence. More than this, we do not doubt that a train dispatcher is a representative of the company, within the rule of the common law, as expounded by the supreme court of the United States in the case of Railroad Co. v. Baugh, 149 U. S. 369, 13 Sup. Ct. 914. He represents the company for two reasons — First, because he is pro tempore in supreme control of a distinct department of the railroad, namely, the running department of the company for iris division; and, second, because the work which he is called upon to do is in the discharge of a positive duty owed by the company to its employés. By the train dispatcher’s authority to sign the superintendent’s name to his telegraphic orders which control the operating department of his division, he becomes the superintending officer of his division; and as was said by Mr. Justice Field in the Ross Case (5 Sup. Ct. 184), of the conductor, unless he is the representative of the company it has no representative in charge of the operation of trains.

Again the railway company is bound to provide general rules and general time-tables for the reasonably safe operation of its railway system, and also rules applicable to all emergencies likely to arise. It is inevitable that at times, and in sudden exigencies, the general time-table must be set aside. It then becomes the duty of the company to construct a temporary time-table with such care and skill that it may he reasonably adapted to secure the operation of all the trains on the road without accident or injury to passenger or employe. The person who devises this temporary time-table for the company, and issues telegraphic orders to carry it out, is the train dispatcher. He acts, it is true, under certain rules, hut he is intrusted with a wide discretion and absolute control. That he is the representative of the company, and not the fellow servant of those required to obey his orders, is held by many courts. Hankins v. Railroad Co., 142 N. Y. 416, 37 N. E. 466; Dana v. Railroad Co., 92 N. Y. 639; Sheehan v. Railroad Co., 91 N. Y. 342; Slater v. Jewett, 85 N. Y. 62; Darigan v. Railroad Co., 52 Conn. 285; Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514; Hunn v. Railroad Co., 78 Mich. 513, 44 N. W. 502; Railroad Co. v. Barry, 58 Ark. 198, 23 S. W. 1097; Railroad Co. v. McLallan, 84 Ill. 109; Smith v. Railroad Co., 92 Mo. 359, 4 S. W. 129; Washburn v. Railroad Co., 3 Head (Tenn.) 638; Railroad Co. v. Arispe, 5 Tex. Civ. App. 611, 23 S. W. 928, and 24 S. W. 33; McKin. Fel. Serv. § 143.

In this case the rules of the company were certainly ample to secure safety in the movement of trains under telegraphic orders. Dispatches were required to be sent to trains which were to meet, so as to reach each train one station away from the meeting point. The receipt of these dispatches was to be acknowledged by the operator and those in charge of the trains affected thereby, before the orders were acted on. The east-bound train had, by the rules of the company, the right of way, and the west-bound train was not to leave, under the orders sen!, until the officers of the east-bound train had signified their understanding of the orders to the train dispatcher. In case of great emergency, it was permitted that trains should meet at a point without having received directions so to do at previous stations, but in such cases the train dispatcher was required to see to it, by communication with the operator at the proposed meeting point, that extra precautions, by torpedoes and flagmen, had been taken (o stop the trains. It does not appear why it was necessary to delay sending out the dispatch for the meeting of train 23 and train 28 until the latter train had left Newark, if, indeed, it had then done so. There was a conflict as to whether, when the dispatch was sent, it might have been delivered to train 28 at Newark. Indeed, there was little or no evidence before the jury to show the emergency which justified a departure from the ordinary rule in this case. But, even if there were, certainly no attempt was made to show why the train dispatcher had not, in accordance with the rules, insisted on receiving from the operator at Black Hand assurance that the extra precautions required by the rules — namely, the display of holding signals and the use of torpedoes — had been taken. Had he done so, the collision would not have occurred. All these circumstances were for the consideration of the jury on the issue whether the company was reasonably prudent and careful in the management of its trains; its own rules furnishing competent evidence, as against itself, of a proper standard of care. The long acquiescence of the engineer in a departure from such rules without objection, if anything of the kind were shown, would be competent to prove an assumption of the additional risk thereby involved, and defeat an action for injury eatised thereby; but a compliance with an exceptional order varying from the rule, suddenly made, would not constitute such acquiescence. On the whole case, we are clearly of opinion that the evidence of negligence in the train dispatcher’s orders was quite enough to support a verdict for defendant.

The third and fifth assignments of error present the question whether, either under the statute of Ohio or at common law, the plaintiff. Gamp, as engineman, and Keelty, the telegraph operator, were fellow servants. The circuit court held that they were not fellow servants, by virtue of the Ohio statute. We are not able to concur in this construction of the statute. In our opinion the telegraph operator has neither power nor authority to direct or control the engineer. He is only the medium through whom orders from the train dispatcher are communicated to the engineer and the conducto!'. He gives notice to the engineer and the conductor. He gives notice to the engineer of certain facts, from which the duty of the engineer arises, under the rules of the company. The conductor is in control of the train, and the engineer and the brakeman are his subordina.tes. Suppose that the conductor sends, an order to the engineer by the brakeman. Does the brakeman thereby become a person actually having power or authority to direct or control the engineer? Manifestly not. When a switchman throws a switch, and signals to the engineer that he has done so, is he actually exercising power or authority to direct or control the engineer? Clearly not. The duty of the switchman, in such a case, is merely to give notice to the engineer of the condition of affairs upon which the engineer is required to act. And so the engineer’s duty to act upon the signal from the telegraph operator does not come from any authority or power to control reposed in the telegraph operator. The authority or control is in the train dispatcher, who gives (he order, not in the mere transmitter of it. When there is no order, but the telegraph operator conveys by signal, to the engineer, information as to the position of other trains, or the condition of the track ahead, the operator is the mere register of the fact; a mere notifier; a mere giver of information, upon which the engineer, under the rules of the company, at once knows his duty, and acts accordingly, in Railway Co. v. Ranney, 37 Ohio St. 665 (decided before the act of 1890 became the law), the question was whether an engineer, who gave signals by whistles, to the brakeman, to put on and release brakes, exercised a power to control and direct the brakeman in the performance of his duties. Judge McIlvaine (page 671), referring to this argument, says:

“It is contended that these signals are in the nature of orders or commands, which the engineer is authorized to give to brakemen, which they are bound io obey, and hence the relation of superior and subordinate is created. A majority of the court do not so understand either the purpose or effect of the rule. These signals are so named jiroperly, and are intended to notify all concerned of the thing signified. They are addressed to the conductor as well as brakeman, and it is the duty of the conductor to see that brakemen perform the duty signified. This duty is imposed upon the brakemen by force of the rule it Rolf, and not by virtue of any authority vested in the engineer over the brakemen. The signal is a mere notice, The rule is tlie order of the company to the brakeman, directly. Suppose a train is signaled by a station agent, as this train was, to stop for orders. It thereby became the duty of the conductor, as well as of each employé on the train, to stop for orders; and yet no one can contend that such station agent who gives the signal is the superior, and the train crew subordinate employés of the company, within the meaning of the rule under consideration. A variety of signals, under a. variety of circumstances, are required to be given by different employés of the company, to signify that an occasion exists for the performance of a particular duty; but it would be absurd to hold that in each case the employé giving the signal is a superior servant, to whom all others to whom information is thus communicated are subordinated, so that the company would be responsible to them for any act of negligence of the employé who gave the signal, whether such negligence was in giving the signal, or in the performance of other duties.”

The same rule was laid down in the case of Railway Co. v. Lewis, 33 Ohio St. 196.

There is much less ground for holding that a telegraph operator has any control or authority over an engineer or a conductor than there is that the engineer has control over a brakeman. The engineer exercises discretion to determine when the brakes shall be put on, and when not. Knowing that his signals are to be acted on by the brakeman, and having discretion to give them as he thinks it proper, in the running of the train, he may, with some plausibility, be said to exercise actual power and authority over the brakeman, though, under the decision of the supreme court of Ohio, as we have seen, this is not the proper view. But a telegraph operator, in giving notice to an engineer of a train about to pass, has no discretion whatever. He gives the exact notice which the train dispatcher orders him to give, and no other. He exercises no discretion. He is' a mere messenger hoy. He is the vehicle by which the order is carriedu

But it is said that, while this might otherwise be a reasonable and proper construction of the statute, there is a clause in section 3 which imposes upon the court the duty of giving to the words, “actually having power or authority to direct and control,” a meaning they do not usually have. The important words of section 3 are:

“It shall be held in addition to the liability now existing by law, that every person in the employ of sucb company, actually having power or authority to direct or control any other employé of such company, is not the fellow servant, but superior of sucb other employé, also that every person in the employ of such company having charge or control of employés in any separate branch or department, shall be held to be the superior and not fellow servants of employés in any other branch or department who have no power to direct or control in the branch or department in which they are employed.”

The argument is that because, by the decisions of the supreme court of Ohio previous to the passage of this act, where one employé actually had power or authority to direct or control another employé, the two were not fellow servants, and the master was liable for the negligence of the superior, therefore the court must now strain the meaning of the words, “actually having power or authority to direct or control,” so as to give them a wider effect than the then prevailing rule of liability, and so satisfy the legislative intent expressed in the words, “in addition to the liability now existing by law.” From this necessity for a strained construction, the court is urged to hold that mere mediums of communicating orders, mere signal givers, mere registers of facts, exercise actual power and authority to direct and control the persons to whom it is merely their duty to communicate information or orders issued by others. It is true that, in the construction of a statute, it is the duty of the court, when it can, to give effect and meaning to every clause and part of it. It is also true that, before the passage of the act, it was uniformly held by state courts of Ohio that any person in the employ of a railroad company or other master, actually having power or authority to direct or control any other employ* of the same master, was his superior, and that the master was liable for injury to the inferior caused by the negligence of such superior. This has been the holding since the decision of Railroad Co. v. Stevens, 20 Ohio, 415, as will be seen by reference to the following eases: Railroad Co. v. Keary, 3 Ohio St. 201; Railroad Co. v. Barber, 5 Ohio St. 541; Whaalen v Railroad Co., 8 Ohio St. 249; Manville v. Railroad Co., 11 Ohio St. 417; Railway Co. v. Devinney, 17 Ohio St. 197; Stone Co. v. Kraft, 31 Ohio St. 287; Railway Co. v. Lewis, 33 Ohio St. 196; Railway Co. v. Lavalley, 36 Ohio St. 221; Railway Co. v. Ranney, 37 Ohio St. 665; Dick v. Railroad Co., 38 Ohio St. 389; Railway Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467; Alexander v. Pennsylvania Co., 48 Ohio St. 623, 631, 30 N. E. 69. But the words, “in addition to the liability how existing by law,” can have no effect to pervert the ordinary meaning of language. Courts are not compelled to stultify themselves for the purpose of reconciling inexplicable inconsistencies of legislatures; nor in this case is it necessary for the court to do so. The second provision in section 3, namely, that the superior in one branch or department shall not be the fellow servant of a subordinate in another branch, does add to the liability of the railway companies under the decisions of the Ohio courts, as they were at the time of the passage of this act. In Railway Co. v. Devinney, 17 Ohio St. 197, it was held that a company was not liable to a brakeman on one of its trains, for injuries sustained by him in a collision occurring by reason of the negligence of the conductor of the other train,, because such conductor and brakeman were fellow servants. And this was the holding until was passed the statute now under investigation, whereby the company becomes liable to the brakeman for injury by the negligence of the conductor or engineer of another train. Railroad Co. v. Margrat (a decision by the supreme court of Ohio) 37 N. E. 11. The words, “in addition to the liability now existing by law,” therefore, may be given effect by referring them to this latter provision of the section. Taking the parts of the section together, it would seem that the first clause was introduced as merely declaratory of the law then existing, for the purpose of making fuller and clearer the meaning of the legislature with reference to the second clause. In commenting on the first clause, and the alleged implication in the statute that it increased the liability of railroad companies, Judge Bradbury, in delivering the opinion in Railroad Co. v. Margrat, said:

“The remedy was so complete, where the relation of superior and subordinate actually existed, that the statute here could have little or no operation. Still it may be said that the statute makes the rules of liability of certain and universal application, denying any exception to its operation, wherever the relation of subordinate and superior exist, and the subordinate is injured by the negligence of the superior while engaged in the common service.”

There is no suggestion in this by the court that the words, “actually having power and authority to direct or control,” do not describe a relation in which one is the “superior” and the other the “subordinate,” within the ordinary meaning of those terms. It seems too plain for further argument that the conductor and the engineer arenot subordinates of the telegraph operator, within the statute.

Second, it is argued that, even if this be true, the telegraph operator is nevertheless not a fellow servant of the conductor and engineer, within the common-law rule. We think” he is. He and the engineer and the conductor work together, at the same time and place, for a common employer, with an immediate common'object, namely, the proper running of trains. It is essential, in the operating department of a railroad company, that there should be provision for communicating to those in charge of different trains the whereabouts of other trains, to avoid collision. This information is given by means of the general time-table and general rules for the running of trains with reference to each other,-which the employés in charge of each train are obliged implicitly to obey. But it often happens that the general time-table must be varied from, and these variations must be communicated to those in charge of trains. This is effected, usually by telegraphic orders from the superintendent or the train, dispatcher, who has supreme control of the running of trains. The information is also communicated by means of flagmen, by means of torpedoes, by red lights and green lights upon trains, by the block-signal system, and in other ways. The subordinate employés, whose duty it is to transmit the orders of the officer in control, or to give information as to the presence of trains upon any part of the track, without special orders, are engaged at the same time and plage with the persons operating the train, in a common employment, having an immediate, common object, namely, that of the running of trains, and therefore are fellow servants. The man who makes the signal at the station to the engineer on the approaching train to stop is as much engaged in the running and operation of that train as the flagman sent out ahead to signal the condition of a switch. Neither exercises the discretion or the judgment or the control of the master, but each contributes his part to the safe running of the train. There can be no separation of the signal department and the operating department, for the employés engaged upon the train, in the actual, manual operation of the train, are expected to be part of the signal department of the company. The man who puts out the green light at the back of the train, to indicate that a train is following, communicates to every station .agent, every conductor, and every engineer, who sees it, knowledge upon which they, each of them, must act, and yet it can hardly be said that the brakeman, in displaying this green light, is acting in a different department from the man who opens and closes the throttle valve of the engine. The principles which must govern in this case were first announced by the supreme court of the United States in Randall v. Railroad Co., 109 U. S. 178, 3 Sup. Ct. 322. In that, case a brakeman working a switch for bis train on one track in the railroad yard was injured by the negligence of the engineman of another train, in driving Ms engine too fast, and in not giving due notice of its approach. It was held that the two were fellow servants. Said Mr. Justice G-ray, delivering the opinion of the court:

“They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate, common object in the moving of the trains. Neither works under the orders or control of the other. Each, dj entering into his contract of service, takes the risk of the negligence of the other in performing Ms service; and neither can maintain an action for an injury caused by such negligence against the corporation, their common master.”

Every word of this passage has application to the relation existing between the engineman of a train and a telegraph operator charged with the duty of signaling the engineman. Among the cases cited by Mr. Justice Gray is that of Slater v. Jewett, 85 N. Y. 62, where it was expressly held by the court of appeals of New York that a, telegraph operator and a fireman upon an engine were fellow servants, so that the fireman could not hold the railway company liable for an injury caused by the negligence of the telegraph operator in transmitting a dispatch giving orders to the on engineer.

In Steamship Co. v. Merchant, 133 U. S. 375, 10 Sup. Ct. 397, the stewardess of the steamship was injured by leaning against the rail, which had not been properly replaced by the porter and carpenter of the ship, who had had occasion to remove it and put it back. The contention was that the carpenter was in the deck department, and that the stewardess was in the steward’s department, and that, therefore, neither was the fellow servant of the other; but the supreme court refused to take this view, and held that they were fellow servants. Said Mr. Justice Blatchford:

“The carpenter had no authority over the plaintiff, nor had the porter. They and the plaintiff had all signed the shipping articles; and the division into departments was one evidently for the convenience of administration on the vessel, and did not have the effect of causing the porter and the carpenter not to be fellow servants. * * * There was nothing in the employment or service of the carpenter or the porter which made either of them any more the representative of: the defendant than the employment and service of the stewardess made her such representative.”

The latest case on the subject is that of Railroad Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, in which it was held that a common day laborer in the employ of a railroad company, while working for the company under the order and direction of a section boss or foreman, on a culvert of the line of the company’s road, was a fellow servant of the conductor and engineer of a passenger train, and .could not recover of the company for an injury-sustained through the negligence of such conductor and engineer. After referring to the case of Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, and Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, Mr. Justice Brown, speaking for the court, said:

“Neither of these cases, however, is applicable here, since they involved the question of ‘subordination’ of fellow servants, and not of ‘different departments.’ Of both classes of cases, however, the same observation may be made, viz', that to hold the 'principal liable whenever there are gradations of rank between the person receiving and the person causing the injury, or whenever they are employed in different departments of the same general service, would result in frittering away the whole doctrine of fellow service. Cases arising between persons engaged together in the same identical service, as, for instance, between brakemen of the same train, or two seamen of equal rank in the same ship, are comparatively rare. In a large majority of eases . there is some distinction, either in respect to grade of service, or in the nature of their employments. Courts, however, have been reluctant to recognize these distinctions, unless the superiority of the person causing the injury was. such as to put him rather in the category of principal than of agent, as, for example, the superintendent of a factory or railway, and the employments 'were so far different that, although paid by the same master,- the two servants were brought no further in contact with each other than as if they had been employed by different principals. We think this case is indistinguish.able in principle from Randall’s Case, which was decided in 1883, and has been accepted as a sound exposition of the law for over ten years, and that, unless we are prexiared to overrule that case, the third question certified must be answered in the affirmative. The authorities in favor of the proposition there laid down are simply overwhelming.”

In this court we Lave had a phase of the question now before us, in the case of Railway Co. v. Clark, 6 C. C. A. 281, 57 Fed. 125. There an engineer was injured by the failure of a telegraph operator to signal to him that a train had passed less than 10 minutes in advance of him; and we held that where, as in that case, the telegraph operator was acting merely as a station agent or switchman, to signal to the engineer facts within his own observation, he was, under the principle of fiandall’s Case, a fellow servant of the engineer. We did not, however, decide in that case — because it was not necessary — that the telegraph operator, in transmitting the orders of the train dispatcher, was a fellow servant of the persons to whom he communicated those orders; and to that extent the Clark Case is not controlling authority here. But, after giving the question full consideration, we do not think that any distinction can be made between the case where a telegraph operator 'communicates facts to the engineer, within his own knowledge, and that where he transmits orders of the train dispatcher. The argument in support of the distinction is this: It is the admitted -duty of the railroad company to prepare a complete system of rules for the running' of trains, applicable to ordinary conditions and to extraordinary conditions, so far as they can be anticipated, .adapted to secure safe transportation of employés and passengers. This duty -includes that of furnishing a general time-table, upon which trains may safely run. It- is the further duty of the company to promulgate the rules and time-table, and to see to it that they are brought to the knowledge of their employés engaged in run;ning their trains. Whenever the. time-table is disregarded, and trains are run upon telegraphic orders, this is but the establishment of a temporary time-table by the company. The contention, therefore, is that the company 1ms the same positive duty to see to it that its employés operating its trains receive notice of the temporary time-table as of the general time-table, and that tiie negligence, of (he telegraph operators in discharging this duty of the company, is the negligence of the company, and the fellow-servant rule has no application. The link in this chain of argument that will not bear the strain of examination is the assumption that, because it is the absolute duty of (he company to communicate to its employes its general tinni-table, it must íiave the same duty with respect to a change of tinni-table in an emergency. The tluty of the company is to provide general time-tables and general rules, and rules for all possible emergencies, and to communicate them to its employes affected by them, because this is reasonable and possible. The circumstances are such, and the time within which the communication can be made is so ample, that the company can have no excuse for failing to make it. Eut an employ6 who enters the service of a railway company knows that the transmission of a temporary change in the time-table, occasioned by an emergency, and calling for immediate action, must be through telegraph operators and signalmen, who are stationed along the road, working with them, at the same time and place, for the immediate, common object of running trains; and therefore he must be held to assume the risk of negligence in those persons thus engaged with them in exactly the same work. The only obligation winch the company can be held to, with respect to the communication of a sudden and temporary change in the running times of trains by telegraphic, order, is that, so far as those who represent the company are concerned, all reasonable care shall be taken in transmitting notice of the temporary changes. Meeting exactly the same contention in Slater v. Jewett, supra, Chief Judge Folger, after fully conceding (he master’s duty to see and know that his general time-table is brought to the- knowledge of his servants who are to square (heir actions to it, said:

“It is not true that, on an occasion like tills, it is the duty of the master, or a part of his contract, to sec; to it, as with a personal sight and touch, that notice of a temporary and special interference with a general time-table comes- to (lie intelligent apprehension of all those whom it is to govern in the running of approaching trains. It is utterly impracticable so to do, and a brakeman or a iireman on a train knows that it is, as well as any person connected with the business, lie knows that trains will oi'ien and unexpectedly require to be stopped, and that such orders must, from the nature of the case, be given through servants skilled in receiving and transmitting them. H there is due care and diligence in choosing competent persons for that duty, a negligence by them in the performance of it is a risk of the employment that the coemployé takes when he enters the service. Such a variation, and the giving notice of it, is not like the supply of suitable machinery, or of competent and skilled fellow workmen. It is the act of an hour or of an inslant, which, for any useful effect to be got from it must bo done at the instant, and that, too, from a distance. * * * The reasonable rule in such case hath this extent, and no more, that he (the master) must first choose his agents with due care for their possession of skill and competency, and that then he must use the best means of communication, according to prescribed general rales and regulations, devised from tbe best experience in siicb business; and it, among those means, is tbe service of a fellow servant competent for bis place, bis possible carelessness is a risk-of tbe employment that bis fellows take when entering into tbe service.”

In several of the cases already cited to sustain the view that á train dispatcher is not a fellow servant of a conductor or engineer, a clear distinction is made between the telegraph operator and the train dispatcher, by which the former is placed in the category of all subordinate employés with the engineman and conductor, and is held to be a fellow servant of them. Such is the holding in Slater v. Jewett, 85 N. Y. 63, already referred to, and the propriety of it has been recognized in all subsequent New York cases, and distinctly approved in Sutherland v. Railroad Co., 125 N. Y. 737, better reported in 26 N. E. 609. The same distinction is recognized in Reiser v. Pennsylvania Co., 152 Pa. St. 38, 25 Atl. 175, and in McKaig v. Railroad Co., 42 Fed. 288. A different view, it is true, has been taken in Railroad Co. v. De Armond, 86 Tenn. 75, 5 S. W. 600, and in Madden v. Railroad Co., 28 W. Va. 610. But in these two states the different department theory prevails, and is the basis of the decision in each case. The different department exception to the fellow-servant rule, as we have seen, has been much limited by the supreme court of the Uni1 ed States in its last utterance upon the subject, and the authorities of West Virgina and Tennessee are therein expressly dissented, from. In the case of Railroad Co. v. Charless, 2 C. C. A. 386, 51 Fed. 562, the circuit court of appeals of the Ninth circuit held that a telegraph operator, under the averments of the petition in ihat case, was not a fellow servant of a train employé injured by his negligence. This decision by the Ninth circuit has been considered by us, as may be seen by reference to Judge Barr’s opinion in the Clark Case, already referred to. And only one sentence need be added to the comment there made. The court of the Ninth circuit relies on the decision of Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514, to sustain its conclusion. That case only decided that the train dispatcher was not a fellow servant of the conductor or engineer injured by his negligence. The court below had also charged that the telegraph operator was a fellow servant. But it did not become necessary for the supreme court of Pennsylvania then to pass upon the correctness of the charge of the court on this point. Subsequently, however, in the case of Reiser v„ Pennsylvania Co., 152 Pa. St. 38, 25 Atl. 175, this question arose squarely, and was decided as already stated, and contrary to the conclusion reached in the Charleas Case.

In view of the decisions of the supreme court, in view of the ruling of this court in the Clark Case, and because of the considera*tions already stated, in our judgment the telegraph operator was the fellow servant, both at common law and under the statute, of the engineer Gamp. And therefore the instruction of the court to the jury upon this subject was erroneous. The judgment must therefore be reversed, with instructions to order a new trial.