102 F. 421 | U.S. Circuit Court for the District of Western Tennessee | 1900
(after stating the facts as above)'. In denying the defendant’s motion it is possible the .court is misconstruing the effect of the case of Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, Adv. S. U. S. 85, 44 L. Ed.-, the latest exposition of the law of fellow service by the supreme court of the United States. Because that court has overruled the Ross Case (112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787) it does not follow that it has established the broad contention of the learned counsel for the defendant company that the exemption from liability for the negligence of fellow servants covers all employés from the president down, except where the company has failed to furnish — First, a reasonably safe place; or, secondly, adequate appliances; or, thirdly, to make diligent inquiry as to the competency of co-servants.
The court does quote cases that enunciate this extreme doctrine, apparently, but it is one of the features of the case that the learned justice delivering the opinion of the court is most careful to confine its effect to the precise, facts involved, and declines to educe a rule applicable to all possible circumstances, — such as the rule insisted on by the defendant’s counsel here. Each case depends on its own circumstances. And this must be so, for, as Judge McKinney says in Washburn v. Railroad Co., 3 Head, 638, 642:
“If this be correct, — that the board of directors only is to be regarded as the principal or master, — it will inevitably follow that the company cannot be held liable, in a case like the present, unless it can be shown that the injury resulted from the direct action of the company in its corporate capacity. This is absurd. The corporation, of necessity, acts through the instrumentality of its officers and agents. If not prohibited by the charter, it may delegate its authority to its officers and agents, so far as it may be necessary to effect the purposes of its creation. It must act in this mode, or not act at all.”
In a very wide sense all engaged in the operation1 of a railroad, from the president to the axle greaser, are fellow servants, to be sure; but this is not what the cases mean by that expression. In this case the company had delegated to some proper official the authority to contract with this plaintiff that he should inspect and properly care for all the appliances for water supply at the water stations from Bowling Green to Memphis, and to contract with him for his safe transportation from one place to another for the performance of that service, for which he was supplied with the necessary passes and orders to receive him on any train; and by means of these orders he was admitted to the engine on which he was injured by collision through the negligence of its driver. He had not the least connection with the movement of that engine, or of any train on which he might be’ traveling.- It was, indeed, not going all the way to the point he wished to reach. He was not charged with any duty even remotely connected with its movements imposing on him any care to guard himself against the negligent management of the engine, jointly or otherwise;" nor of that character which would imply, necessarily, that the dangers of the engineer’s negligence were assumed by
“If the departments' of the two servants are so far separated from each other that the possibility of coming in contact, and hence of incurring danger from the negligent performance of the duties of such other department. could not be said to be within the contemplation of the person injured, the doctrine of fellow service should not apply. In this view it is not difficult to reconcile the numerous cases which hold that the persons whose duty it is to keep railroad cars in good order and repair are not engaged in a common employment with those who run or operate them.”
And lie pronounces tills the most satisfactory test. He cites, by way of illustration of what is meant by the test he is applying, the case of Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755. If the case we have in hand were reversed in its facts somewhat, so that the engineer had been injured by some negligence of the plaintiff, Stuber, in making repairs of a pump, let us say, it is conclusively established by this last-cited case and its approval by Mr. Justice Brown's opinion and reasoning on the subject that the doctrine of their fellow service would be no defense. Why, then, should it be now, when the injury is the other way? for there is mutuality of risk in the doctrine. Again, let ns suppose that the plaintiffs contract had been to do the work of keeping the water appliances in re pair for a compensatory sum that would contemplate the payment by him of his travel fares; would it then be claimed that he was a fellow servant with the engineer? In effect, he does the work for ⅜80 per month plus travel fares, since they give him free transportation. Or, suppose he should be traveling in his own conveyance, or otherwise independently, while on duty in the company’s service, and were injured by the engineer; would they then be fellow servants? Only in the widest sense that would, by the universality of the application, be a reduction to that absurdity mentioned by Mr. Justice McKinney in the case above quoted.
Overrule the motion.