108 F. 934 | 6th Cir. | 1901
The defendant in error, William Stu-ber, sustained a severe injury through the negligence of an engineer in charge of a detached engine upon which he was riding. Both-the engineer and Htuber were at the time in the service of the railroad company. There was a judgment upon a verdict for defendant in error. 102 Fed. 421.
This case turns upon the single question as to whether the negligent. engineer and S tuber were fellow servants. The facts were undisputed, and were as follows: Stuber for many years had been the “foreman of water supply” upon an extensive division of the railroad of the plain tiff in error, receiving $80 per month. His business was to supervise the water tanks and pumping machinery at the many water stations within his division, keeping same in good repair, and in condition to furnish water for the proper movement of trains. In the discharge of his duties he was obliged to pass frequently from one water station to another, and was authorized by a superintendent's order or pass to travel free upon any and all trains, and to stop them, when necessary, at any tank. To answer a call to repair the pumping machinery at Humboldt, Tenn., Ktuber hoarded a detached locomotive at Guthrie, Ky., bound down the road. Through the negligence of the engineer in sole control of this engine, a collision occurred at Clarksville, Tenn., with a train, whereby íá tuber sustained a severe personal injury. The learned circuit judge was of opinion that the relation of fellow servant did not exist between defendant in error and the engineer, through whose negligence he had been injured, and instructed the jury to return a verdict against the plaintiff in error. A request to instruct the jury to And for the railroad company upon the ground
■ The rule is now well settled that railway employés, while being carried, as part of their contract of service, to and from their place of work, are fellow servants, and not passengers. Thus, in Gillshannon v. Railroad Corp., 10 Cush. 228, laborers being carried to and from their work upon a gravel train were held not to be passengers, but fellow servants of those operating the train. In Seaver v. Railroad Co., 14 Gray, 466, a carpenter, whose business it was to repair bridges and fences along the line of railroad, injured while being carried free to a place of work, was held to be a fellow servant, and not a passenger. In Ryan v. Railroad Co., 23 Pa. 384, a laborer on a gravel train was injured through the negligence of the conductor or engineer while being carried from his residence to his place of work. Held, that there could be no recovery. In McQueen v. Railway Co., 30 Kan. 689, 1 Pac. 139, a bridge painter, while being transported over the road to discharge the duties of his place, was held not to be a passenger. In Railroad Co. v. Smith, 14 C. C. A.
Stnber, it is said, had nothing to do with the actual movement of trains or engines, and was, therefore, in a different department of service. The ground upon which those courts proceed which hold au employer liable to his servants for the negligent acts of other servants in a separate and distinct department is that the servant only accepts the risk of the negligence of those so closely associated with him as that he may'he supposed to have contracted with reference to the possibility of their negligence, they coming through such associaiion to some extent under his influence. Railroad Co. v. Carroll. 6 Heisk. 348, 362, et seq.; Shear. & R. Neg. (5th Ed.) §§ 237, 288. But under this rule it is difficult to see its application here. If Stuber bad been hurt by those engaged in operating a train or locomotive while be was repairing a tank or pump on the side of the track, he might with more plausibility have urged that he could not foresee, when accepting employment, that he would he exposed to the negligence of servants operating trains. But in the case of Morgan v. Railway Co., L. R. 1 Q. B. 149, the plaintiff was employed by the railway company to do work as a carpenter, ne was injured while standing on scaffolding at work on a shed close to the line of railway, and was injured by the carelessness of some train hands in shifting a locomotive on a turntable so that it struck a ladder supporting the scaffolding, by which means the plaintiff
“It appears to me that we should he letting in a flood of litigation were we to decide the present case in favor of the plaintiff. For, if a carpenter’s employment is to be distinguished from that of the porters employed by the same company, it will be sought to split up the employés in every large establishment into different departments of service. Although the common object of this employment, however different, is but the furtherance of the business of the master, yet it might be said that no two had a common immediate object. This shows that we must not overrefine, but look at the common object, and not at the common immediate object.”
In the case at bar Stuber’s employment required him to pass over the line of railway continuously upon all kinds of trains. Thus he was brought continuously in contact with those operating the trains, and must, upon the association, rule, be regarded as having foreseen that he would be exposed, at least while being carried to and from his place of work, to the negligence of those operating trains. The general rule is that the master is not liable in the absence of negligence in respect to those duties which he is universally regarded as having undertaken; such as the obligation to exercise care in the selection of those to be associated with him, or of a place to carry on his work, and proper tools or materials with which to do it. In the decisions of the supreme court we find no sanction for taking a case out of this general rule of nonliability for the negligent acts of a fellow servant by refined distinctions as to who are fellow servants, based upon the subordination of one servant to another, or upon the circumstance that two servants are engaged in different departments of a common service. Thus, in Steamship Co. v. Merchant, 133 U. S. 375, 10 Sup. Ct. 397, 33 L. Ed. 656, the department theory was repudiated in respect to those in service upon the same steamship, and the ship’s carpenter held to be the fellow servant of the stewardess, though in distinct departments. In Railroad Co. v. Hambly, 154 U. S. 349, 360, 14 Sup. Ct. 983, 986, 38 L. Ed. 1009, 1013, a section hand was held to be the fellow servant of those engaged in operating trains. Mr. Justice Brown, in delivering the opinion of the court, said:
“To bold 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 on the same ship — are comparatively rare. In a large majority of cases there is some distinction either in respect to grade of service or in the nature of the 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.”
In Railroad Co. v. Conroy, 175 U. S. 323, 328, 20 Sup. Ct. 85, 44 L. Ed. 181, Ross’ Case, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787, was expressly overruled, and the .last vestige of authority for sup-
“Unless we are constrained to accept and follow the decision of this court in the case of Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787, we have no hesitation in holding, both upon principle and authority, that the employer Is not liable for an injury to one employé occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged hi the same operation or particular work; that it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in tlie same common enterprise, both employed to perform duties tending to' accomplish tlie same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; and that, accordingly, in tlie present case, upon tlie facts stated, the conductor and the injured brakeman are to be considered fellow servants within tlie rule.”
Applying Ibis principle, it is clear that Stuber and the engineer, through whose negligence he was hurt, were servants of a common master, and, though not; engaged “in the same operation or particular work,” they were both employed to perform duties “tending to accomplish the same general purposes.” Tlie services of Stuber in supplying trains with water were just as important to the proper movement of trains as those of the engineer upon a locomotive. The services of each in his particular sphere were directed to the accomplishment of the same general end. They were, therefore, fellow servants, without regard to the intimacy of their association, though, as we have already seen, the duties of H tuber were such as (o require that he should be constantly carried to and from his work by those engaged in the operation of trains and engines. The failure to instruct for tlie jdaiuthi iu error was an error, for which the judgment must be reversed.