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Argument for Defendant in Error.

such negligence, is unwarranted by common knowledge of railroad business.

Assuming in the present case that the negligence was that of the conductor or persons having the care and control of a moving passenger train, can it be said that such a reason will fit the facts of this case? Can Hambly, a common laborer working on a culvert on the line of a railroad be said to be an observer of the conduct of the person or persons in charge of the passenger train? Does he have any opportunity to guard against their negligence? Does he come in contact with them so as to learn their habits, methods, or recklessness? He has nothing to do with train service, may never before have seen the conductor or engineer. It is manifest that one in his position could have no influence over the persons in charge of the passenger train since their business did not bring them together.

That persons in charge of trains are not fellow-servants in the same common employment with persons working along the track, see Garrahby v. Kansas City, St. Joseph &c. Railroad, 25 Fed. Rep. 258; Pike v. Chicago & Alton Railroad, 41 Fed. Rep. 95; Chicago & Northwestern Railroad v. Moranda, 93 Illinois, 302; Sullivan v. Missouri Pacific Railway, 97 Missouri, 113; Richmond & Danville Railroad v. Normont, 4 S. E. Rep. 211; King v. Ohio &c. Railroad, 14 Fed. Rep. 277.

The rule laid down in the Farwell case was grounded on public policy, the court saying that, “in considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all parties concerned.”

Not being founded in exact justice, the reasons for the rule have failed in a variety of cases and a number of limitations have arisen or sprung from the hardships of a general application of a rule founded solely on alleged public policy. Northern Pacific Railroad v. Herbert, 116 U. S. 642; Ross v. Chicago, Milwaukee &c. Railroad, 112 U. S. 377; Ryan v. Chicago &

VOL. CLIV-23

Argument for Defendant in Error.

Northwestern Railway, 60 Illinois, 171; Chicago & Alton Railroad v. Kelley, 21 N. E. Rep. 203; St. Louis & San Francisco Railway v. Weaver, 11 Pac. Rep. 408; Madden v. Chesapeake & Ohio Railway, 28 W. Va. 610; Northern Pacific Railroad v. O'Brien, 21 Pac. Rep. 32; Cooper v. Mullins, 30 Georgia, 146; O'Donnell v. Allegheny Valley Railroad, 59 Penn. St. 239; Moon v. Richmond & Allegheny Railroad, 78 Virginia, 745; Nashville &c. Railroad v. Carroll, 6 Heisk. 347; Louisville & Nashville Railroad v. Sheets, 13 S. W. Rep. 248 (Ky.); Donaldson v. Miss. & Mo. Railroad, 18 Iowa, 280.

If the reasons which influenced the Farwell decision do not exist; if one of these employés did not assume the risk of the conductor's negligence more than or differently from the other, and it would be absurd to say that such is the case, if the employé on another train has no better opportunity of observing the conduct of the conductor than one on the same train with :such conductor, then there is no theory or principle to distinguish between the two cases, and the master would be liable in both.

With greater force can it be asked, upon what theory can it be held that the conductor of the passenger train in the case at bar was a fellow-servant with the laborer at work on a culvert on the railroad? Under the authority of the Ross case, if the brakeman on the train had been injured in the same negligent circumstance, the company would be held liable. Yet the brakeman was acquainted with the conductor, made the run with him frequently, knew his habits and had a better opportunity to observe his actions than the laborer working on the culvert.

Hambly was not engaged in and had no such knowledge of train service as was possessed by the brakeman. His duties did not bring him to work at the same place and at the same time as the conductor. Their separate service did not have a common object. While they were both servants of the same master, the one was engaged in the train department and the other in the bridge department. Unless the entire operations of an extensive and widespread railroad corporation can be

Opinion of the Court.

grasped in the expression, general business or common employment, then these men were not fellow-servants. While it may be said that the conductor represented the master as a viceprincipal, and was for that reason not a fellow-servant with the defendant in error, yet it seems the better reason that he was not a fellow-servant because not in the same common employment.

MR. JUSTICE Brown, after stating the case, delivered the opinion of the court.

The third question certified to this court, and the only one it is necessary for us to consider, involves the inquiry whether the plaintiff Hambly and the conductor and engineer of the passenger

train

were, either by the common law or the statute of Dakota, fellow-servants in such sense as to exempt the defendant railway from liability.

There is probably no subject connected with the law of negligence which has given rise to more variety of opinion than that of fellow-service. The authorities are hopelessly divided upon the general subject as well as upon the question here involved. It is useless to attempt an analysis of the cases wbich have arisen in the courts of the several States, since they are wholly irreconcilable in principle, and too numerous even to justify citation. It may be said in general that, as between laborers employed upon a railroad track and the conductor or other employés of a moving train, the courts of Massachusetts, Rhode Island, New York, Indiana, Iowa, Michigan, North Carolina, Minnesota, Maine, Texas, California, Maryland, Pennsylvania, Arkansas, and Wisconsin hold the relation of fellow-servants to exist. Farwell v. Boston & Worcester Railroad, 4 Met. (Mass.) 49; Clifford v. Old Colony Railroad, 141 Mass. 564; Brodeur v. Valley Falls Co., 17 Atl. Rep. 54; Harvey v. New York Central Railroad, 88 N. Y. 481; Gormley v. Ohio & Mississippi Railway, 72 Indiana, 31; Collins v. St. Paul & Sioux City Railroad, 30 Minnesota, 31; Pennsylvania Railroad v. Wachter, 60 Mary. land, 395; Houston &c. Railway v. Rider, 62 Texas, 267; St.

Opinion of the Court.

Louis & Iron Mountain Railway v. Shackelford, 42 Arkansas, 417; Blake v. Maine Centrul Railroad, 70 Maine, 60; Ryan v. Cumberland Valley Railroad, 23 Penn. St. 384; Sullivan v. Miss. & Mo. Railroad, 11 Iowa, 421; Fowler v. Chicago & Northwestern Railway, 61 Wisconsin, 159; Kirk v. Atlantic &c. Railway, 94 N. C. 625; Quincy Mining Co. v. Kitts, 42 Michigan, 34; Keystone Bridge Co. v. Newberry, 96 Penn. St. 246: while in Illinois, Missouri, Virginia, Ohio, and Kentucky the rule is apparently the other way. Chicago & Northwestern Railroad v. Moranda, 93 Illinois, 302; Sullivan v. Missouri Pacific Railway, 97 Missouri, 113; Richmond & Danville Railroad v. Normont, 4 S. E. Rep. 211; Dick v. Railroad Co., 38 Ohio St. 389; Louisville &c. Railroad v. Caven, 9 Bush, 559; Madden v. Chesapeake & Ohio Railway, 28 W. Va. 610. The cases in Tennessee seem to be divided. East Tennessee &c. Railroad-v. Rush, 15 Lea, 145; Louisville & Nashville Railroad v. Robertson, 9 Heisk. 276; Haley v. Mobile & Ohio Railroad, 7 Baxter, 239; Nashville & Decatur Railroad v. Jones, 9 Heisk. 27; East Tennessee &c. Railroad v. Gurley, 12 Lea, 46.

In this court the cases involving the question of fellowservice have not been numerous nor, perhaps, altogether harmonious. The question first arose in the case of Randall v. Baltimore and Ohio Railroad Company, 109 U. S. 478, in which a brakeman, working a switch for his train on one track in a railroad yard, was held to be a fellow-servant of an engineer of another train upon an adjacent track, upon the theory that the two were employed and paid by the same master, and that their duties were such as to bring them to work at the same place at the same time, and their separate services had as a common object the moving of trains. It is difficult to see why, if the case under consideration is to be determined as one of general and not of local law, it does not fall directly within the ruling of the Randall case. The services of a switchman in keeping a track clear for the passage of trains do not differ materially, so far as actions founded upon the negligence of train men are concerned, from those of a laborer engaged in keeping the track in repair;

Opinion of the Court.

As a

neither of them is under the personal control of the engineer or conductor of the moving train, but both are alike engaged , in an employment necessarily bringing them in contact with passing engines, and in the “immediate common object” of securing the safe passage of trains over the road. laborer upon a railroad track, either in switching trains or repairing the track, is constantly exposed to the danger of passing trains, and bound to look out for them, any negligence in the management of such trains is a risk which may or should be contemplated by him in entering upon the service of the company. This is probably the most satisfactory test of liability. 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 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. The case of Northern Pacific Railroad v. Herbert, 116 U. S. 642, is an illustration of this principle. The plaintiff in this case was a brakeman in defendant's yard at Bismark, where its cars were switched upon different tracks and its trains were made up for the road. He received an injury from a defective brake, which had been allowed to get out of repair through the negligence of an officer or agent of the company who was charged with the duty of keeping the cars in order. It was held, upon great unanimity of authority both in this country and in England, that the person receiving and the person causing the injury did not occupy the relative position of fellow-servants. See also Hough v. Railway Co., 100 U. S. 213; Union Pacific Railway v. Daniels, 152 U. S. 684. Even in Massachusetts, whose courts have leaned as far as any in this country in supporting the doctrine of fellow-service, it has been held that agents who are charged with the duty of supplying safe machinery are not to be regarded as fellow-servants with those

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