42 F. 383 | U.S. Circuit Court for the District of Minnesota | 1889
In the amended complaint filed in this cause it is averred that on the 17th day of March, 1888, the plaintiff was in the employ of the defendant company as a locomotive fireman; that in the performance of his duty as such he was on that day required to go upon engine No. 181, which was pulling a train between Missoula and Arlee, upon the line of defendant’s road, in -the then territory of Montana; that, through the fault and negligence of the defendant, a collision occurred between the train on which plaintiff was employed and another train belonging to defendant, near the station called “Evaro;” that plaintiff, to ayoid the danger of being crushed to death by the coming collision, jumped from the engine on which he was firing, and received injuries resulting in the amputation of his right leg. In the answer filed, it is averred 'that, by the rules of the company in force when the accident happened, it -was the duty of all trains on defendant’s road to stop at all night telegraph offices, and receive a clearance order before proceeding east such office, between the hpurs of 7 p. m. and 7 a.m.; that under •;he rule-it w'as the duty of the persons operating train No. 1 to stop at said station of Evaro, and not to pass the same until the proper clearance order had been received; that, disregarding such rule, the persons operating said train No. 1 did not stop at said station, but proceeded on eastward until said train No. 1 met.the engine on which plaintiff was riding, and came in collision therewith; that the collision was caused by the negligence of the persons operating train No. 1; that such persons were fellow-servants with the plaintiff, and for their negligence the defendant is not responsible. The demurrer to the answer presents the question whether the facts therein averred show' that the defendant company is not liable for the injuries received by plaintiff.
If the solution of the problem thus presented was wholly dependent upon the determination of the question whether, under the rule of the common law, the plaintiff and the parties in charge of train No. 1, w'ere fellow-servants, we would have presented the exact point which the supreme court stated, but did not decide, in the case of Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184. In that case an engineer was injured in a collision between two trains, which resulted from the negligence of the conductor of each train. The supreme court held that the relation of fellow-servant did not exist between the engineer and the conductor of the train on which the engineer was employed, but did not pass upon the question wffiether the cónductor of the other train was or was not a fellow-servant with the injured engineer. The conclusion reached in that case, to the effect that.the engineer and conductor of the same train were not fellow-servants, is placed upon the ground that the conductor wras charged with the duty of running the train; was in command of its movements; directed when it should stop and when it should proceed; had the general management thereof and control over the persons on the train; and must therefore he held to be the representative of the company, for whose negligence the latter would be responsible.
The control of the train is placed in the hands of the conductor, in order that there should be some responsible person charged with the duty of properly moving the train; that is, of determining when the train shall stop, and when it shall proceed, with reference to meeting and passing other trains upon the road. This power of control over the movements of a given train is not conferred upon the conductor with sole reference to the safety of the train upon which' he is acting as conductor. He is charged with the duty of so moving his own train as to secure not only its own safety, but also to aid in securing the safety of other trains which are moving upon the same portion of the line. In the management of his own train the conductor must ever bear in mind that there may be other trains upon the road, and to secure the safety of his own train, and also of other trains, he must, as the representative of the company, exercise due care to avoid collisions. It is unquestionably the duty of the company, in running its trains, to exercise due care to see that the movements thereof are so regulated that collisions shall be prevented. For that purpose the defendant company adopted the rule sot up in the answer providing that between the hours of 7 p. m. and 7 a. m. no train must pass beyond a telegraph station until it had received the necessary clearance order. The conductor of train No. 1 was charged with the duty
On part of plaintiff it is further claimed that the statute of Montana, in force when the accident happened, modifies the common-law rule in regard to the liability for the acts of fellow-servants. The statute (section 697, Comp. St. 1888) is as follows:
“That in every case the liability of the corporation to a servant or employe, acting under the orders of his superior, shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employe not appointed or controlled by him, as if such servant or employe were a passenger.”
This statute does not go to the length of abrogating the general rule that the master is. not liable to an employe for the consequences of the negligence of a co-employe, but it does enact, in effect, that a superior is not a co-employe with an inferior, and that one may be a superior as compared with another, even though the former does not control the latter. The enactment is based upon the known fact that, in carrying on the business of railroading, there are recognized grades among the numerous classes of employes, and, while they all are working for a common master and for an ultimate common result, they are practically not all co-servants. The present plaintiff was a fireman, and his duties were limited generally to attending to the furnace and other matters upon the engine.
This cause has already been before the court on demurrer to the answer, and in the opinion then given it was held that, under the common-law rule and under the provisions of the statute of Montana, it could not bo held that a fireman was a co-employe with the conductor of a train by whoso negligence in controlling the movements of his train a collision was caused with the engine upon which the plaintiff was acting as fireman. By an amended answer now on file, it is averred that the collision was caused by the negligence of the engineer in charge of the engine upon which the plaintiff was acting as fireman, and that they were co-employes, anti therefore the company is not liable. It is averred in the amended answer that the accident occurred on the 17th day of March, 1888; that on that day, and for some time prior thereto, the rules of the company provided that between the hours of seven in the evening and seven in the morning all trains should consider themselves held for orders at all night telegraph offices, and in accordance with said rule it was the duty of all trains on the defendant’s lino of railroad to stop at all night telegraph offices, and receive a clearance order, before proceeding past such office, between the hours named; that the rules of the defendant further provided that, in approaching stations whereat there are switches, all freight trains must move with great cau
The principle recognized -in the Ross Case by the supreme court is that -one who is charged with the control of the movement of the train, who directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, or who, in other words, controls the movement of the train, is in no proper sense a fellow-servant with the fireman, the brakeman, or the engineer on such train. In that ease a collision was caused by the negligence of the conductor in failing to communicate to the engineer an order which he had received, and the engineer was the person injured. The court held that the relation of
Roes the fact that the collision in this case was caused by the negligence of the engineer change the relation of the parties'? The solution of this question must be sought, not in the mere name applied to the one at fault, but in the relation he in fact occupied towards the company and the'other train-men in the performance of the duty devolved upon him, and in the doing of which he was guilty of negligence. It is apparent to every one, having any knowledge of the operation of railway trains, that there are two persons thereon who divide between them the responsibility of the actual movement of the train. These persons are the conductor and the engineer. While the duties of these two persons are widely different yet practically by the combination of both are the movements of the trains controlled, and in the management thereof they each in their respective places represent the company, and they are not fellow-servants with, the other employes upon the train who are not charged with the management of the train, and have no control over the same. The brakeman, the fireman, and the porters upon the train are not eo-workers with the conductor and the engineer in the control and running of the train. They have no voice in determining the speed of the train, when it shall stop, when proceed, and other like matters. Touching all questions affecting the movements of the train, the relation of such employes towards the persons who have control over the movements of the train is that of inferior towards superior; the latter exercising absolute control, and the former owing the duty of obedience. According to the averments in the amended answer, two acts of negligence are charged upon the engineer, to-wit, not halting at the station at Evaro and remaining there until the proper clearance order was received, and in passing the station at too great a speed. It is clearly in-ferable from the answer that the control and management of the train in these particulars was a duty resting upon the engineer. He it was who should have brought the train to a halt at the station, and in fact he practically was the only one who could so control the train as to bring it to a stop before passing the station. Ho, also, lie it was who controlled the speed at which the train was moving when it reached the station. Thus the amended answer charges that the person who had the actual control over the movements of the train, and whose duty it was to observe the rules of the company in the particulars named, was guilty of negligence in the performance thereof: and I can see no substantial ground for holding that the engineer, in his relation to such movements of the train as arc wholly under his control, occupied any different rela-.iion to the other subordinate employes on the train than is occupied by