19 Utah 196 | Utah | 1899
After stating the facts,
delivered the opinion of the court.
It was admitted at the trial that no statute existed in Nevada at the time of the injury complained of changing the rule of the common law with reference to fellow servants or defining what a fellow servant is, as in Utah, and that the common law prevailed in that State and still prevails there. At the time of the injury the plaintiff was a common laborer and track walker on. defendant’s road, working with others under orders of Mr. Cannon, a section boss, who ordered the plaintiff to go to Twelve Mile Canon, where he was going when injured. Mr. Cole was road master, having authority over the section boss.
The first question to be determined is whether or not at the time of the injury in Nevada the plaintiff was a fellow servant of the engineer, and whether the court erred in granting a non-suit. By the stipulation referred to, this question is to be determined under the rules of the common law, and not under the statute of this State defining what fellow servants are. The authorities bearing upon this question are hopelessly divided upon the general subject of fellow servants, as well as upon the other questions here involved. It is useless to undertake to analyze the cases which have arisen in the courts of the several States, because they are wholly irreconcilable in principle, and too numerous to classify. As between the laborer or other employees upon a railroad track, and the conductor, engineer, or other employees of a moving railroad train, the -courts of Massachusetts, Rhode Island, New York, Indiana, Iowa, Michigan, North Carolina, Minnesota, Maine, Texas, California, Maryland, Pennsyl
In Chicago & Milwaukee R. R. Co. v. Ross, 112 U. S., 377, the court held, in substance, that a railroad corporation is responsible to its train servants and employees for injuries received by them in consequence of neglect of duty by a train conductor in charge of its train with the right to command its movements and control the persons employed upon it. That a conductor of a railroad train who has a right to command the movements of the train, and to control the persons employed upon it, represents the company while performing those duties, and does not bear .the relation of fellow servant to the engineer and employees of the corporation on the train.
The late territorial Supreme Court of Utah in Webb v. Denver & Rio Grande R. R. Co., 7 Utah, 363, held that a car repairer assisting in making a coupling was not, as a matter of law, a fellow servant of an engineer in charge of a switch engine, and a similar holding was made in Armstrong v. Oregon Short Line & Utah Northern R. R., 8 Utah, 420, and Openshaw v. Utah & Nevada R. R. Co., 6 Utah, 137.
Since these decisions were rendered, the rule has been considerably enlarged, and the Supreme Court of the United States, with many of the States, has held to a rule modifying the decision in the Koss case to a considerable extent.
In Randall v. Baltimore & Ohio R. R. Co., 109 U. S., 478, the court held, in substance, that a brakeman working a switch for his train on one track in a railroad yard, is a fellow servant with the engineman of another train of the same corporation upon an adjacent track; and he can not maintain an action against the corporation for
In Martin v. Atchison, Topeka & Santa Fe R. R. Co., 166 U S., 399, it was held as copied from the head note as follows: ‘ ‘ The plaintiff in error was in the employment of the defendant in error as a common laborer. While on a hand car on a road, proceeding to his place of work, he was run into by a train, and seriously injured. It was claimed that the collision was caused by carelessness and negligence on the part of other employees of the company, roadmaster, foreman of the gang of laborers,
In U. P. R. R. Co. v. Peterson, where the foreman of a gang of laborers, including the plaintiff, were engaged in placing ties and repairing the railroad, with power to hire and discharge men, and direct the management of all matters connected with their employment, and while so engaged the plaintiff was injured by the negligence of the foreman, it was held that the foreman was not engaged as superintendent in a separate department of the road, nor in control of such a distinct branch of the work of the company as to render it liable to a co-employee for neglect, but he was a fellow servant whose negligence entailed no liability on the company.
In the case of the U. P. R. R. Co. v. Charles, 162 U. S., 359, it appears from the head note of the case that the plaintiff was a day laborer in the employ of the North- ' ern Pacific Railroad. With the rest of his gang he started on a hand car under a foreman to go over a part of the section to inspect the road. While running rapidly round a curve they came in contact with a freight train, and they were seriously injured. The brake of the hand car was defective. The freight train gave no signals of its approach. He sued the company to recover damages for his injuries, and it was held,
1. “That the railroad company was not liable for negligence of its servants on the freight train to give signals of its approach, as such negligence, if it existed, was the negligence of a co-servant of the plaintiff.”
2. “That any supposed negligence of the foreman in running the hand car at too high a rate of speed, was negligence of a co-employee of the company and not of their common employer.”
‘ ‘ Whether the engineer and fireman of a locomotive engine, running alone on a railroad and without any train attached, are fellow servants of the company, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former, is not a question of local law, to be settled by the decisions of the highest court of the State in which a cause of action arises, but is one of general law to be determined by a reference to all the authorities, and a consideration of the principles underlying the relations of master and servant.
■ ‘ ‘ Such engineer and such fireman, when engaged on such duty are, when .so considered, fellow servants of the railroad company, and the fireman is precluded by principles of general law from recovering damages from the company for injuries caused during the running, by the negligence of the engineer.”
In. U. P. R. R. Co. v. Hambly, 154 U. S., 349, it was held that “a common day laborer in the employ of a railroad company, who, while working for the company under the order and direction of a section boss or foreman, on a culvert on the line of the company’s road, receives an injury by and through the negligence of the conductor and of the engineer in moving and operating a passenger train upon the company’s road, is a fellow servant with such engineer and such conductor, in such a sense as exempts the railroad company from liability for the injury so inflicted.”
In the argument of this case counsel for appellant rely upon the case of Railroad Co. v. Ross, 112 U. S., 377, in connection with the rule of the company, number 89, to bring their case within the rule laid down in the above
Further commenting upon the rule laid down in the Eoss case, the court said : ‘ ‘ The court, therefore, did not hold that it was universally true that, when one servant has control over another, they cease to be fellow servants within the rule of the master’s exemption from liability, but did hold that an instruction couched in such general language was not erroneous when applied to the case of a conductor having exclusive control of the train in relation to other employees of the company acting under him on the same train. The conductor was, in the language of the opinion, ‘ clothed with the control and management of a distinct department; ’ he was ‘ a superintending officer, ’ as described by Mr. Wharton; he had ‘ the superintendency of a department,5 as suggested by the New York Court of Appeals. * * "x" Thus, between the law department of a railroad corporation and the operating department, there is a natural and distinct separation, one which makes the two departments like two independent kinds of business, in which the one employer and master is engaged. So, oftentimes, there is in the affairs of such corporation what may be called a manufacturing or repair department, and another strictly operating department; these two departments are, in their relation to each other, as distinct and separate as though the work of each was carried on by a separate corporation. And from this natural separation flows the rule that he who is placed in charge of such separate branch of the service,
In discussing the Boss case, the court, in the U. P. R. R. Co. v. Hambly, 154 U. S., 358, distinguishes the Boss case and says : “ The case was decided not to be one of fellow service upon the ground that the conductor was ‘ in fact, and should be treated as the personal representative of the corporation, for whose negligence it is responsible to subordinate servants.’ The court drew a distinction between servants of a corporation, exercising no supervision over others engaged with them in the sam.6 employment, and agents of a corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence.’ In that particular case the court found that the conductor had entire control and management of the train to which he was assigned, directed at what time it should start, at what 'speed it should run, at what stations it should stop, and for what length of time, and everything essential to its successful movements, and that all persons employed upon it were subject to his orders. Under such circumstances he was held not to be a fellow servant with the fireman, brakeman, and engineer.”
The facts in this case differ somewhat from the facts in the Boss case and from cases referred to from Utah. The plaintiff was a common track walker engaged in keeping the track in repair so that trains could pass up and down the road in safety. A wreck having occurred, he was
Upon a careful examination of all the decisions of the higher courts of the country, we are impelled to conclude that under the facts as shown, the plaintiff was a fellow servant of the engineer, and that the court committed no error in directing a verdict for the defendant.
The judgment of the district court is affirmed, with costs.