Northern Pac Co v. Hambly

• Citation: 38 L.Ed. 1009,154 U.S. 349,14 S.Ct. 983
• Decision Date: 26 May 1894
• Docket Number: No. 187,187
• Parties: NORTHERN PAC. R. CO. v. HAMBLY
• Court: United States Supreme Court

154 U.S. 349

14 S.Ct. 983

38 L.Ed. 1009

NORTHERN PAC. R. CO.

v HAMBLY.

No. 187.

May 26, 1894.

This was an action by George Hambly against the Northern Pacific Railroad Company for personal injuries. The jury found a verdict for plaintiff, and judgment was entered thereon, defendant's motion for a new trial being denied. The judges of the circuit court certified certain questions, on which they were divided in opinion, for the opinion of the supreme court.

This was an action by Hambly to recover damages for personal injuries sustained by him while acting as helper to a crew of masons engaged in building a stone culvert for the defendant company on its right of way, about two miles west of Jamestown, in North Dakota. Upon the trial of the case before a jury, the following facts were proven and admitted to be true by both parties, viz.: 'That the plaintiff was a common laborer in the employ of the defendant company, and, at the time he received the injury which is the ground of this action, he was in the service of the defendant, working under the direction and supervision of a section boss or foreman of the defendant company, assisting in building a culvert on defendant's line of railroad, and that while so engaged the injury complained of, and for which he sues, was inflicted upon him by being struck by a locomotive of a moving passenger train on the defendant's road (said train belonging to the defendant, and being operated by a conductor and engineer in its employ), and that the injury he received by coming in contact with said passenger train, and which is the injury sued for in this cause, was due solely to the misconduct and negligence of the conductor and locomotive engineer on said passenger train, in operating and conducting the movements of said train.'

Upon the foregoing facts, defendant prayed for an instruction to the jury that the engineer and conductor of the passenger train were fellow servants with the plaintiff, and hence that the defendant company was not liable for the injury received by the plaintiff through their negligence. Upon the question of giving such instruction the opinions of the judges were opposed; and the circuit judge being of opinion that the plaintiff and said conductor and engineer were not fellow servants, in the sense that would exempt the defendant from liability, so instructed the jury, which returned a verdict for the plaintiff in the sum of $2,500, upon which judgment was entered. Defendant thereupon moved for a new trial, upon the granting of which the judges were opposed in opinion. The motion was denied, and the judges certified the following questions for the opinion of this court:

'(1) Whether, on the admitted facts of this case, hereinbefore set out, the jury should have been instructed that the plaintiff and said conductor and engineer were fellow servants, and that they should return a verdict for the defendant.

'(2) Whether, on the facts hereinbefore set out, the court should have set aside the verdict and judgment in the case, and granted defendant a new trial.

'(3) Whether the plaintiff, who was a common day laborer in the employ of the defendant, which is a railroad company owning and operating a line of railroad, and who was, at the time he received the injury complained of, working for the defendant under the order and direction of a section boss or foreman on a culvert on the line of defendant's road, was a fellow servant with the engineer and conductor operating and conducting a passenger train on the defendant's road, in such a sense as exempted the defendant from liability for an injury inflicted upon plaintiff by and through the negligence of said conductor and engineer in moving and operating said passenger train.'

Mr. Chief Justice Fuller, Mr. Justice Field, and Mr. Justice Harlan dissenting.

James McNaught, A. H. Garland, and H. J. May, for plaintiff in error.

S. L. Glaspell, for defendant in error.

[Argument of Counsel from pages 351-355 intentionally omitted] Mr. Justice BROWN, after stating the facts in the foregoing language, 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 which 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 employes 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. Railroad Co., 4 Metc. [Mass.] 49; Clifford v. Railroad Co., 141 Mass. 564, 6 N. E. 751; Brodeur v. Valley Falls Co. [R. I.] 17 Atl. 54; Harvey v. Railroad Co., 88 N. Y. 481; Gormley v. Railroad Co., 72 Ind. 31; Collins v. Railroad Co., 30 Minn. 31, 14 N. W. 60; Railroad Co. v. Wachter, 60 Md. 395; Railroad Co. v. Rider, 62 Tex. 267; St Railroad Co. v. Shackelford, 42 Ark. 417; Blake v. Railroad Co., 70 Me. 60; Ryan v. Railroad Co., 23 Pa. St. 384; Sullivan v. Railroad Co., 11 Iowa, 421; Fowler v. Railway Co., 61 Wis. 159, 21 N. W. 40; Kirk v. Railroad Co., 94 N. C. 625; Mining Co. v. Kitts, 42 Mich. 34, 3 N. W. 240; Bridge Co. v. Newberry, 96 Pa. St. 246), while in Illinois, Missouri, Virginia, Ohio, and Kentucky the rule is apparently the other way (Railroad Co. v. Moranda, 93 Ill. 302; Sullivan v. Railway Co., 97 Mo. 113, 10 S. W. 852; Railroad Co. v. Norment [Va.] 4 S. E. 211; Dick v. Railroad Co., 38 Ohio St. 389; Railroad Co. v. Cavens' Adm'r, 9 Bush. 559; Madden v. Railway Co., 28 W. Va. 610). The cases in Tennessee seem to be divided. Railroad Co. v. Rush, 15 Lea, 145; Railroad Co. v. Robertson, 9 Heisk. 276; Haley v. Railroad Co., 7 Baxt. 239; Railroad Co. v. Jones, 9 Heisk. 27; Railroad Co. v. Gurley, 12 Lea, 46.

In this court the cases involving the question of fellow service have not been numerous, nor, perhaps altogether harmonious. The question first arose in the case of Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322, 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. 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. As a 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...