102 F. 96 | 8th Cir. | 1900
Lead Opinion
after stating tbe case as above, delivered tbe opinion of tbe court.
Tbe protests of this court against multiplied and frivolous assignments of error seem to be of no avail. There are 103 assignments of error in this case, of which not more than 4 or 5 are of sufficient gravity to challenge or justify our attention. It was apparent from tbe inception of this case that, if tbe railway company was responsible for the results of tbe conflicting orders it issued for tbe movement of its trains, it had no defense to tbe merits of this action, and that tbe only question to be litigated was tbe amount of tbe plaintiffs’ damages. It is obvious from an inspection of tbe record that the defendant realized this fact, and, to compensate for tbe lack of merits, resorted to tbe tactics and methods not unusual in such cases, but which it pursued with more zeal and pertinacity and carried to greater heights than common.
On tbe 27th day of November, 1897, the defendant filed an application for a continuance of tbe cause, which was overruled, ajad this ruling of the court is one of tbe principal errors assigned and insisted on. Nearly a century ago tbe supreme court of tbe United States said, “It may be very bard not to grant a new trial or not to continue a cause, but in neither case can tbe party be relieved by a
The collision which resulted in the death of the fireman, Elliott, occurred on the 11th day of June, 1892; this suit was begun on the 9th day of March, 1893; the answer was filed October 9, 1893; the defendant applied for and obtained the change of venue from one judicial division to another February 1,1894; and the affidavit for a continuance was filed November 27, 1,897. Soon after the commencement of the action, the plaintiffs, upon due notice to the defendant, took the depositions of J. F. Andrews, the conductor, and O. E. Thoman, the locomotive engineer, on the train going south, and of John Smyihe, the conductor on the train going north, at the time of the collision. Engineer Thoman produced, and made it part of his deposition, the manifold copy of the train dispatcher’s order under and in accordance with which he and his conductor were running the south-bound train; and Conductor Smythe, having given to one of the defendant’s employes, on a promise to return it, which was not done, the manifold copy of the train dispatcher’s order under and in pursuance of which he and his engineer were running the northbound (rain, (('stifled to its contents. The plaintiffs also took the deposition of John Sullivan, the defendant’s train dispatcher at Den-ison, Tex., whose division extended from Denison to Muskogee, in the Indian Territory; the train dispatcher’s office at MeAlester having been removed from that place to Denison after the collision. Mr. Sullivan testified that he, as chief train dispatcher for the defendant over the division mentioned, had possession of the train sheets and order book of the company kept by the train dispatcher in the train dispatcher’s office in MeAlester at the time of the collision, and prior to the removal of the office to Denison; and he produced a sworn and compared copy of the train dispatcher’s order to Conductor Smythe, taken from the original order book in his possession. He also testified to the movements of the colliding trains, as shown by the train sheet, up to the stations on either side of the point of collision,. when there was “no further news of same.” All of these witnesses were in the employ of the defendant, in the same
Referring to the conductors and locomotive engineers on the colliding trains, whose depositions the plaintiff had taken, the statement is made in the affidavit “that, if such reasonable time is given him in which to secure the attendance of such last-named witnesses, it will be able to show by said witnesses such a state of facts as will require the court to hold that the man Barton, whom it is claimed by the plaintiff was the train dispatcher, was a fellow servant of said W. H. Elliott.”
It is assigned for error that the court overruled the defendant’s challenge for cause to three jurors. There are several sufficient answers to this assignment. It does not appear that these jurors stood in any relation to the parties fhat disqualified them from serving as jurors in the case, or that they had any actual bias or prejudice for or against either party to the suit; and they declared on oath that they could try the case impartially, and the court so found. “The finding of the trial court upon that issue ought not to be set aside by a reviewing court unless the error is manifest. Xo less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence.” Reynolds v. U. S., 98 U. S. 145, 156, 25 L. Ed. 244. For some reason not disclosed by the record before us, the names of two of the jurors challenged for cause do not appear in the panel of jurors that tried the case, and, as they “did not sit on the jury, no harm was done to defendant.” Burt v. Panjaud, 99 U. S. 180, 25 L. Ed. 451. And, while the name of the third juror does appear in the panel, it nowhere appears in the record that the defendant exercised a single one of its peremptory challenges, so that, upon the face of the record, the defendant could have removed the juror from the panel if it desired to do so. But, as there was no valid ground of objection to the juror, if: is immaterial whether the defendant had or liad not exercised its right of peremptory challenge.
It is said the evidence to prove the conflicting orders issued from the train dispatcher’s office for the movement of these trains was incompetent and insufficient to prove that fact. We have heretofore set out the substance of the testimony on this subject. It was. not only competent, but abundantly sufficient. The original order book and train sheets were in the defendant’s possession, but beyond the jurisdiction of the trial court. In apt time before the trial, the plaintiffs served on the defendant the following notice:
*102 “In the United States Court for the Indian Territory, Northern Judicial Division, Sitting at Muskogee.
“Lydia J. Elliott, et al., Plaintiff, v. Missouri, Kansas & Texas Railway Co., Defendant. No. 2,175.
“To Missouri, Kansas & Texas Bailway Company, Above-Named Defendant: You are hereby notified to produce at the trial of the above-entitled cause the original train dispatcher’s books, train sheets, and train orders concerning movements of all trains over the line of the Missouri, Kansas & Texas Kailway between Muskogee, Ind. Ter., and- South McAlester, Ind. Ter., on the 11th day of June, 1892, and particularly all train dispatcher’s books, train sheets, and train orders specialty' relating to trains 1st 103 and 4th 58, alleged in the complaint to have met with a collision between South Canadian and Beams on said 11th day of June, 1892. Given this 24th day of Sept., A. D. 1897.
“Lydia J. Elliott,
“By Hutchings '& West, Attys.
“Service of the above notice accepted this 24th day of Sept., A. D. 1S97.
“Clifford L. Jackson, Atty. for Deft.”
The defendant having these records in its possession, and being able to produce them, but refusing to do so after due notice, the plaintiffs had a right to introduce secondary evidence of their contents. 1 Greenl. Ev. § 560. The operators at the stations where the train dispatcher’s orders were delivered to the conductors and locomotive engineers of trains retain one of the manifold copies of all orders delivered, and it is highly probable the company had possession of the retained copy of the manifold orders issued to the conductors and engineers on these trains; but, whether it had these copies or not, it did have what was more important, — the original order book containing them, and the original train sheets showing the movements of the trains until they departed from the stations between which they were wrecked by the head-end collision and were heard of no more. Moreover, if there was any doubt or uncertainty as to the absolute correctness of the evidence relating to the orders of the train dispatcher and the train sheet, the defendant had it in its power to show that fact by the production of the originals. It had had notice for years, by the depositions on file,'just what the plaintiffs’ evidence on the subject would be. It is a well-settled rule that when the evidence tends to prove a material fact which imposes a liability on a party, and he has it in his power to produce evidence which from its very nature must overthrow the case made against him, if it is not founded on fact, and he refuses to produce such evidence, the presumption arises that the evidence, if produced, would operate to his prejudice, and support the case of his adversary.' “It is certainly a maxim,” said Lord Mansfield, “that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other , side to have contradicted.” Blatch v. Archer, Cowp. 63, 65. It is said by Mr. Starkie in his work on Evidence (volume 1, page 54):
“Tbe 'conduct of tbe party in omitting1 to produce that evidence in elucidation of tbe-subject-matter in dispute wbicb is witbin bis power, and wbieb rests peculiarly witbin bis own knowledge, frequently affords occasion for presumptions against bim, since it raises strong suspicion that sucb evidence, if adduced, woyld operate to bis prejudice.”
McDonough v. O’Niel, 113 Mass. 92; Kirby v. Tallmadge, 160 U. S. 379, 383, 16 Sup. Ct. 349, 40 L. Ed. 463; Railway Co. v. Ellis, 10 U. S. App. 640, 4 C. C. A. 454, 456, 54 Fed. 481.
It is assigned for error that a witness was allowed to state that the deceased fireman told the witness that he earned $40 per month when he first commenced to work for the defendant company in its switch yards, and that after he got to be a fireman his wages ran from $75 to $00 per month. There are several sufficient answers to this assignment. This question is treated in the brief of the counsel for the plaintiff in error as though the compensation of a fireman on a locomotive engine was regulated by an independent personal contract between each individual fireman mid the railroad company, the contents of which were unknown to any one else. But it has come to he common knowledge that the compensation, hours of labor, etc., of firemen is fixed and regulated by contract between the railway company and the officers of the labor union known as the “Brotherhood of Locomotive Firemen,” who contract for and on behalf of all firemen in the service of the company. The wage schedule is uniform for all firemen in the service, and is based on the number of miles run by the engine on which the fireman is serving, and is uniform, or substantially so, on all of the railroads in the West and Souih. The distance between train terminals to and from which train crews run ⅛ commonly about 150 miles, except in mountainous regions, and the average compensation of the firemen under the uniform wage schedule is from $75 to §90 per month. When the service is on the largest engines, or when extra hours are served, the compensation ⅛ slightly increased. All Ibis is common knowledge, and, as we shall see, was also proven in (his case.
The plaintiffs offered in evidence the “schedule showing the rate of wages to all classes” of the company’s employés. This schedule was in the possession of Mr. E. M. Morton, the freight and ticket agent of (he company at Muskogee, one of the terminal points of the Choctaw Division of the company’s road, who testified that it was. issued by the general manager of the company, and that it was furnished all terminal agents who had charge of yards, or anything of that kind; that a terminal was a point where train crews run from and to ; and that Muskogee and Denison were the terminal points of the Choctaw Division. The witness was a terminal agent, and, as such, had been bfficially furnished with, and had possession of, this official schedule of wages paid employés. But the defendant objected to its introduction, and the court sustained the objection. This schedule of wages was clearly competent for the purpose of showing the wages the company paid the firemen in its employ. The rule is well settled that when the plaintiff offers and is ready to produce competent evidence to prove a material fact in issue, and the court erroneously rejects it on the objection of the defendant,
But another and conclusive answer to the objection of this assignment of error is that there was no sufficient objection interposed to' the hearsay evidence at the time it was introduced. After testifying that the deceased first commenced to work for the company in the switch yard, the record show’s the following proceedings took place:
“Q. Wliat wages did he get at that time? (Which question is objected to by the counsel for the defendant, which objection ⅛ overruled by the court, to which action of the court in so overruling defendant’s objection defendant, by its counsel, then and there at the time duly excepted, and still excepts.) A. He told me he got $40 a month. (Whereupon counsel for defendant objected to the answer to the last question, w’hich objection is overruled by the court, to which action of the court in so overruling defendant’s objection defendant, by its counsel, then and there at the time duly excepted, and still excepts.)”
It will be observed tbat no ground for the objection is stated. The defendant simply “objected,” which, for any legal purpose, is exact! y equivalent to silence. Insurance Co. v. Miller, 19 U. S. App. 588, 8 C. C. A. 612. 614, 60 Fed. 254; Railway Co. v. Hall, 32 U. S. App. 60, 14 C. C. A. 153, 60 Fed. 868; Mining Co. v. Berberich, 36 C. C. A. 364, 94 Fed. 329.
The case of District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472, was an action for a personal injury, and the court said (page 461, 136 U. S., page 994, 10 Sup. Ct., and page 476, 34 L. Ed.):
“At this point of the witness’ testimony in chief he was asked ‘whether the book shows that this tiling was received on the 29th of November.’ The question was objected to, and Ibe objection overruled. The witness answered, ‘It was.’ To this ruling of the court as to the question and answer the defendant, excepted.”
The supreme court disregarded this general exception, saying (page 462, 136 U. S., page 994, 10 Sup. Ct., and page 476, 34 L. Ed.):
“In Camden v. Doremus, 3 How. 515, 530, 11 L. Ed. 705, this court declined hr consider objections made to the admission of evidence which did not state-the grounds upon which they were made, and did not obviously cover the competency of such evidence, nor point to some definite and specilic defect in its character. ‘We must,’ the court said, ‘consider objections of this character as vague and nugatory, and, if entitled to weight anywhere, certainly as without weight before an appellate court.’ To the same effect are Burton v. Driggs, 20 Wall. 125, 133, 22 L. Ed. 299; Patrick v. Graham, 132 U. S. 627, 629, 10 Sup. Ct. 194, 33 L. Ed. 460. This rule is especially applicable in actions like the present one, in which no fixed rule can be prescribed for measuring the amount of damages, and in which the result must, of necessity, depend, upon the good sense and sound discretion of the jury, as controlled by the special circumstances of the case.”
And while there were objections interposed to some introductory and collateral questions propounded to the witness upon the ground that they called for hearsay, there was no objection at all interposed to the question and answer now objected to, namely:
“Q. What did he get after he got to be a fireman? A. He told me his wages run from $75 to $90 per month.”
To this question and answer no objection whatever was made. It is always allowable to interpose stringent and rigid rules to set off hypercritical and technical objections to the admission of evidence
“If éve'ry slight defect or slip which a microscopic eye can detect in a question or answer or the charge ot the court is to he counted, prejudicial error, litigation will become interminable over subtle refinements and quibbles which were not seen or regarded by the judge or jury at the trial, and" which had no bearing whatever on the decision of the case on its merits. Such an administration of the law would be intolerable. ‘But there is nothing,’ said Judge' [now Mr. Justice] Brown, of the supreme court of the United States, ‘which tends to belittle the authority of the courts, or to impair the confidence of the public in the certainty of justice, as much as the habit of reversing cases for slight errors in admitting testimony, or trifling slips in the charge." » ⅜ * Better by far the practice of the English courts and the federal supreme court, where every intendment is made in favor of the action of the lower court,, and cases are rarely reversed except for errors going to the very merits,- — errors which usually obviate the necessity of a second trial.’ 'Report Am. Bar. Ass’n 1889, p. ——. Though these remarks of the learned justice ■were not uttered from the bench, they express the rule upon the subject by which appellate courts should be guided, and they have our approval.”
We reaffirm wbat was there said, and apply it to this case. The admission of incompetent evidence of a material fact is an error without prejudice, where the fact is proved by other competent evidence (Cooper v. Coates, 21 Wall. 105, 22 L. Ed. 481), or the party complaining of the error was instrumental in excluding competent evidence to prove the fact (see authorities supra), or where the fact is one of common knowledge.
It is assigned as an error that the court refused to instruct the jury that the train dispatcher was a fellow servant of the fireman. But this was not error. That the train dispatcher is not a fellow servant of the trainmen in discharging the duties of the train dispatcher for the railroad company is now as firmly settled as any rule of law can be by judicial decisions. A railroad track is of no use to its owner or the public unless cars are run upon it. The railroad is built for that purpose. It is the movement of the trains upon the track that constitutes it a railroad. That is the consummation of the whole business. Trains will not move of their own volition. They have to- be set in motion and kept moving by orders from some source.' The conductors'and engineers on the different trains have no authority over each other. They are required to obey orders for the movement of their trains, but can give none. The company itself can alone tell when and how its trains shall be run. That is its business, and, in the last analysis, its only business. In the orderly and safe conduct of this business, it must make a printed time-table, which is but another name for orders governing and regulating the movement of its trains under normal conditions. The making of this time-table is a legal duty of the railroad company, and, no matter upon whom thé'company may devolve this duty, the time-table, when made, ■and whether well or ill made, is the work of the railroad company, and the' Company is responsible for its results. It is not the work of the man who- put it up, no matter what relation he sustains to the ’company. In contemplation of law, it must necessarily emanate from the supreme head or authority of the company, without regard 'to '■ the ha'nd used to promulgate or publish it. But printed time
“It is the duly ol the railroad company to prepare a time-tahle and adjust the running of its trains so as to avoid collisions. It must also devise some suitable amt safe method by which to run special and irregular trains, and regular trains when off their regular time. That cannot be done by general rules. Emergencies • will arise which no rules can anticipate and provide for, in which the company must act, and net promptly and efficiently. In this case the scheme devised was witli these trains, controlled by one who knew the position and movement, of every train on the road liable to be affected by that, — a train dispatcher acting in the name and by the authority of the superintendent. Ts there not a wide and manifest difference between the duty of such an agent and a locomotive engineer? The doty of the formen' pertains to management and direction; that of the latter to obedience. It is immaterial that these men are hired and paid by a common employer, and iliat their employment is designed to accomplish one common result. * * s The train dispatcher, (lieu, in respect to the matter of moving the trains, is supreme. The whole power of the corporation, whose duty it was to move them safely, was delegated to him. He was the agent through whom the corporation attempted to perform its doty. He acted in its name, by its authority, and in its stead. The engineer was bound to obey his orders. Disobedience or deviation would have been subversive of order and discipline, destructive in its consequences, and just canse for immediate dismissal. * ⅞ * Reason, justice, and law require that the company shall be held responsible.”
In Hankins v. Railroad Co., 142 N. Y. 416, 37 N. E. 466, 25 L. R. A. 396, Judge, (now Mr. Justice) Beckham, speaking for the court of appeals, said:
*108 “Nor is the holding that a train dispatcher, in the dispatch of trains, per* forms for the master a duty which it owes as such, a new departure in the branch of the law under discussion. While the cases cited below do not necessarily proceed upon that basis, yet it is plain that it was in all of them regarded as an indisputable proposition, so far as a train dispatcher acted in ordering the movement of trains.”
In Railway Co. v. Heck, supra, tbe supreme court of Indiana, after an exhaustive discussion of the question and review of the authorities, say (page 314, 151 Ind., and page 996, 50 N. E.):
“The contrary is held to be the law in Mississippi and in Maryland, in a qualified form, so that we are safe in saying that the overwhelming weight of judicial opinion is that a train dispatcher, charged with the duties and clothed with the powers that the one now in question was, is not a fellow servant with trainmen in the employ of the railroad company, but is a vice principal, for whose negligence the company is liable.”
An examination of the cases confirms this statement of the court. We cite the cases: Hankins v. Railway Co., 142 N. Y. 416, 87 N. E. 466, 25 L. R. A. 396; Dana v. Railway Co., 92 N. Y. 639; Sheehan v. Railway Co., 91 N. Y. 332; Slater v. Jewett, 85 N. Y. 61; Darrigan 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, 7 L. R. A. 500; Railroad Co. v. Barry, 58 Ark. 198, 23 S. W. 1097; Railroad Co. v. McLallen, 84 Ill. 109; Smith v. Railway Co., 92 Mo. 359, 4 S. W. 129; Washburn v. Railroad Co., 3 Head, 638; Railway Co. v. Arispe, 5 Tex. Civ. App. 611, 23 S. W. 928, 24 S. W. 33; Railway Co. v. Camp, 31 U. S. App. 213, 229, 13 C. C. A. 233, 65 Fed. 952; Clyde v. Railroad Co. (C. C.) 69 Fed. 673; Railway Co. v. Frost’s Adm’x, 44 U. S. App. 606, 21 C. C. A. 186, 74 Fed. 965; Railway Co. v. Heck, 151 Ind. 293, 306-315, 50 N. E. 988; McKune v. Railroad Co., 66 Cal. 302, 5 Pac. 482; Phillips v. Railway Co., 64 Wis. 475, 25 N. W. 544; Flannegan v. Railway Co., 40 W. Va. 436, 21 S. E. 1028; Railway Co. v. De Armond, 86 Tenn. 75, 5 S. W. 600; McKinney, Fel. Serv. (1890) § 143.
The counsel for the plaintiff in error in their brief cite and rely on Robertson v. Railroad Co., 78 Ind. 77, as establishipg a different doctrine; but that case was expressly overruled by the case of Railway Co. v. Heck, 151 Ind. 292, 50 N. E. 988.
It is said that, as “Elliott suffered instantaneous death in the collision in question, any right of action for damages on account of negligence on the part of the railway company died with Elliott, and did not survive to these defendants in e»ror.” This contention was put .at rest by the decision of this court in Coal Co. v. Bevil, 27 U. S. App. 96, 10 C. C. A. 41, 61 Fed. 757; Broughel v. Telephone Co. (Conn.) 45 Atl. 435.
Exception is taken to the assessment of 10 per cent, damages, upon the affirmance of the judgment appealed from, by the United States court of appeals in the Indian Territory. The Arkansas statute (section 1311, Mansf. Dig.) adopted and in force in that territory, and obligatory upon the United States court of appeals, provides:
“Upon tbe affirmance of a judgment, order or decree for tbe payment of money, tbe collection of wbicb, in whole or in part, has been superseded, as provided in this chapter, 10 per centum damages on the amount superseded shall be awarded against the appellant”
Dissenting Opinion
(dissenting). The nature and kind of service rendered and of control and direction exercised by a train dispatcher on a division of a railroad differ in no respect from the nature and kind of service rendered and of control and direction exercised by a conductor of a train between stations (Railroad Co. v. Conroy, 20 Sup. Ct. 85, Adv. S. U. S. 85, 44 L. Ed. —); by the foreman of a gang of laborers, engaged in repairing sections of a railroad, who has power to hire and discharge the hands who compose the gang, and exclusive charge of their direction and management in all matters connected with their employment: (Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 944); of an engineer wlm is regarded as conductor, and has the direction and control of his engine and fireman (Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772); of a foreman who has the power to hire and discharge men under him, and to direct them when, where, and how to work in the construction of a sewer in a city street (City of Minneapolis v. Lundin, 19 U. S. App. 245, 58 Fed. 525, 7 C. C. A. 344); of a foreman who has the power to hire and discharge the men at work under him, and to control and direct their acts in grading a street in a city (Batch v. Haas, 36 U. S. App. 393, 20 C. C. A. 151, 73 Fed. 974); and of a section foreman who directs and controls the action of the section men who work under his charge (Railway Co. v. Waters, 36 U. S. App. 31, 16 C. C. A. 609, 70 Fed. 28); and as these various superior servants are fellow servants with their subordinates, under the decisions cited, so is a train dispatcher upon a division of a great railroad, in my opinion. There is no difference in the nature of the relation of a train dispatcher of a division of a great railroad to the trainmen, whose movements he directs, and that of the relation of a conductor to the trainmen on his train; of an engineer, who is regaried as conductor, to his fireman; of a section boss to the men of hissing; or of a foreman of a force of laborers, whose action he has the power to direct and control, to the men in his charge. In each case the subordinate servants are required to render implicit obedience to their superior. In each case the superior servant is himself a subordinate, who works under the direction of a superintendent or general manager. In each case the superior servant and his subordinates are “all co-workers to the same end,” regardless of their rank; and in neither case does the superior servant discharge any absolute duty of the master*, or have the entire management of all his business, or of a separate and distinct department of his business. In the last analysis, the proposition that the train dispatcher is not a fellow servant of Ms subordinates rests upon nothing but the superior servant doctrine, — upon nothing but the fact that lie has the right to give directions for the operation of the trains which are moved by his co-workers on the particular division of the railroad
It is true that authorities almost without number can be cited from the decisions of the courts in support of the position that an employé who has the direction and control of those working with or under Mm is the alter ego of his master, and not: the fellow servant of his subordinates, and that the master is liable for his negligence. This is what ⅛ termed the “superior servant: doctrine,” and it has been the favorite theory of many courts, and at one time received the favorable consideration of the supreme court of the United States. Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787. The later decisions of that court, however, and of the federal courts that follow its rulings, have utterly repudiated this doctrine, and have firmly established the following rules of law: All who enter the employment of a common master to accomplish a common undertaking are prima, facie fellow servants. Those to whom the master intrusts the entire supervision and control of all his business, or of a distinct: and separate department of a large and diversified business, and those to whom the master intrusts the discharge of his absolute duties of selecting employes, of furnishing a place for them to work and materials for them to work with, and perhaps of making rules for the conduct of his business, are not, while they are discharging these specific duties, the fellow' servants of the other employes of the common master. Rut these servants, when they are discharging other than these specific duties, and other servants at all times, are the fellow servants of all others engaged in the common undertaking for the common master. Neither the fact that one servant is superior in rank or higher in grade than others, nor the fact that the duty of one is to order and di^gct the movements of others, while the duty of. tin; others is to obey“the orders aud directions of their superior, will abrogate or affect their relation of fellow servants, or constitute the superior a vice principal, unless he is intrusted with the entire management of all his master’s business, or of a distinct and separate department of a large and diversified business. Every servant who enters the employment of the common master assumes the risk of the negligence of his co-workers in the common undertaking, whose duty it is to direct his work and to order him when, where, and liow to do it, just as much as lie does that of those servants whose duty it is to work by his side and to obey the orders of the superior servants. Railroad Co. v. Conroy, 20 Sup. Ct. 85, Adv. S. U. S. 85, 44 L. Ed. -; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 944; Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; City of Minneapolis v. Lundin, 19 U. S. App. 215, 7 C. C. A. 344, 58 Fed. 525; Balch v. Haas, 36 U. S. App. 393, 20 C. C. A. 151, 73 Fed. 974; Railway Co. v. Waters, 36 U. S. App. 31, 16 C. C. A. 609, 70 Fed. 28; Millsaps v. Railway Co., 69 Miss. 423, 13 South. 696; Railroad Co. v. Hoover, 79 Md. 253, 29 Atl. 994, 25 L. R. A. 710; Blessing v. Railway Co., 77 Mo. 410; 2 Bailey, Pers. Inj. §§ 2001, 2190; Railroad Co. v. Poirier, 167 U. S. 48, 17 Sup. Ct. 741, 42 L. Ed. 72; Oakes v. Mase, 165 U. S. 363, 17 Sup. Ct. 345, 41 L. Ed. 746; Railroad Co. v. Keegan, 160 U. S. 259,
Under the above rules, which seem to me to be sustained by the foregoing authorities, and to be now firmly established by the later decisions of the supreme court, the train dispatcher in this case, whose duty it was to direct the movement of trains on one of several divisions of this railroad, was, in my opinion, a fellow servant of all his co-workers in the operating department of the plaintiff in error below its superintendent or general manager; and for that reason the railroad company was not liable for his negligence. The deceased assumed the risk of that negligence when he entered the employment of the common master for the purpose of carrying on, in conjunction with this train dispatcher, the common undertaking of operating the railroad of the plaintiff in error. The trial court refused to declare this to be the law, and the court of appeals in the Indian Territory sustained that ruling. For this reason it seems to me that the judgments below should be reversed.
The ruling to which reference has been made is not, in my opinion, the only error in the trial of this case. There were several errors,— notably, the refusal of the trial court to instruct the jury that they should not consider the testimony of Broyles, which was mere hearsay, in assessing the damages. But the fundamental error has already been discussed, and no good purpose would be subserved by prolonging this opinion to consider less important mistakes.
