Newport News & M.V. Co. v. Howe

• Citation: 52 F. 362
• Decision Date: 04 October 1892
• Docket Number: 20.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Parties: NEWPORT NEWS & M.V. Co. v. HOWE.

52 F. 362

NEWPORT NEWS & M.V. Co. v. HOWE.

No. 20.

United States Court of Appeals, Sixth Circuit.

October 4, 1892

Statement by TAFT, Circuit Judge.

This was a writ of error to reverse a judgment for $5,825, in favor of David Howe against the Newport News & Mississippi Valley Company. The defendant below was a corporation of the state of Connecticut, operating a railroad in Kentucky, and Howe was a brakeman in its employ. Howe based his right of action on the loss of his arm, caused, as he alleged, by the carelessness of an engineer of the company in operating an engine. The facts are substantially as follows: Howe was a brakeman on a freight train running east from Lexington at night. A drawbar of one of the gondola coal cars, of which the train was made up, pulled out, and the train parted. The engine and the several cars in front of the point of breaking ran on. Hughes, the conductor, and Howe were on the caboose at the rear end of the train. On the forward part were the rest of the train crew, consisting of the engineer, Kirsch the fireman, McGuire, and a brakeman, Mann. By the rules of the company applicable to such an emergency, the engineer became the conductor of the forward portion of the train, and the trainmen thereon were made subject to his orders. As soon as the conductor, Hughes, discovered the accident, he sent forward Howe with a lantern to signal the engine when it should return, and to give the engineer information as to the whereabouts of the rear cars. Howe went forward several hundred yards, sat down on the end of a tie, put his light down near him, and went to sleep, with his arm thrown over the rail. The engineer, after running about five miles discovered the parting, side-tracked the cars still attached and then started his engine and tender back to take up the rest of the train. He had with him on the engine the fireman McGuire and the brakeman Mann. The three were the only witnesses of what occurred at the time of the accident. Mann testified on behalf of the plaintiff that, when within a distance of between 100 to 200 feet from the point where Howe lay, he saw the reflection of the light from Howe's lamp. The night was very dark, and it was raining slightly. As he saw the light, he called to the engineer: 'Look out there they are;' meaning the rear portion of the train. He looked again, and saw on the other side of the track from him an object which he took to be the signaling brakeman, waiting to step on the engine. He crossed to the engineer's side, and then saw a prostrate man only 10 or 15 feet from the approaching engine. He whistled through his teeth, giving what is known as the 'steady signal' for stopping at once. The engineer applied the air brakes, reversed his lever, and did all he could to stop. Although he succeeded in bringing the engine to a standstill in 20 feet, the back wheel of the tender had passed over Howe's arm, and cut it off. McGuire testified that the engineer did not look out of the cab window, and that without doing so he could not get a clear view of the track; that the track was straight for 150 yards to where Howe lay, and that if the engineer had looked out of the cab window he could have seen Howe, and could then have stopped the engine in time to avoid the accident. The engineer's evidence contradicted that of Mann and McGuire. A motion to direct a verdict for the defendant on this state of the facts and the evidence, was denied by the court below. Error is assigned for such denial.

W. A. Sudduth, (Stone & Sudduth, on the brief,) for plaintiff in error.

Matt. O'Dougherty, (Thos. F. Hargis, on the brief,) for defendant in error.

Before BROWN, Circuit Justice, and JACKSON and TAFT, Circuit judges.

TAFT Circuit Judge, (after stating the facts.)

We think the motion to direct a verdict for defendant should have been granted, and for two reasons: First, because the engineer, who, it is claimed, caused the accident by his negligence, was a fellow servant of the plaintiff below; and, second, because the negligence of the plaintiff contributed to cause the injury of which he complains.

First. The principle that among the risks incident to the business of the master which the servant, by his implied contract of service, assumes, are those arising from the negligence of his fellow servants, provided they have been selected with due prudence and care, was first satisfactorily expounded in the leading case of Farwell v. Railroad Co., 4 Metc. (Mass.) 49, by Chief Justice Shaw. It has been fully recognized and followed by the supreme court of the United States. In Randall v. Railroad Co., 109 U.S. 478, 3 S.Ct. 322, it was held that the defendant railroad company was not responsible to a brakeman in its employ, who, while switching his own engine and train, was struck by another engine of the defendant, negligently operated by its engineer, because the brakeman and the engineer were fellow servants, working together at the same time and place, in pursuance of a common object, to wit, the moving of trains. An exception to the general rule was first suggested, perhaps, by the decision of the case of Stevens v. Railroad Co., 20 Ohio, 415, and afterwards fully confirmed in the case of Railroad Co. v. Keary, 3 Ohio St. 201. This exception has been recognized by the supreme court of the United States in the case of Railroad Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184, where it was held that, when an engineer's injury resulted from the negligence of the conductor of his train, the negligent conductor was the representative of the company, and his negligence was its negligence. The counsel for the defendant in error rely on the exception announced in the Ross Case to take the case at bar out of the general rule.

It was decided by this court at the last term, in the case of Railroad Co. v. Andrews, 50 F. 728, 1 C.C.A. 636, that the mere fact that the negligent employe was of a higher grade than the injured servant did not prevent their being fellow servants, within the general rule, unless it also appeared that the injured servant was actually subject to the orders of the negligent employe when the accident happened. It was accordingly held that a brakeman on one train, who was killed by the negligence of a conductor of a colliding train, was a fellow servant of such conductor, and that the brakeman's representatives had therefore no cause of action against the railroad company. It was held that the facts brought the case within the Randall Case, rather than the Ross Case, and that it was error in the court below to direct a verdict for the plaintiff. We see no reason to question the correctness of the conclusion or the reasoning of the court in the Andrews Case, and it remains only to apply them to the case at bar.

The breaking of the train, under the rules of the company, made the engineer the pro tempore conductor or that part which still remained attached to the engine, and required the trainmen to act accordingly. With reference to the fireman, McGuire, and the head brakeman, Mann, therefore, the engineer was a superior officer, entitled to their obedience; and if, while the train was in two parts, the engineer's negligence had caused injury to either of them, he would have had his action against the company under the doctrine of the Ross Case, already referred to. But the plaintiff here was in the rear portion of the train, and subject to the order of the Conductor, Hughes. In obedience to Hughes' order, he went forward to signal the returning engine, and when the accident happened, he should have been discharging a duty assigned him by Hughes. Howe was not then acting under, nor was he subject to, the engineer's orders. The case is exactly like the Andrews Case, where the brakeman of one train was injured by the negligence of the conductor of another. Howe and the engineer were fellow servants, and the company is not liable to Howe, therefore, for the engineer's negligence.

It is suggested that, as the accident occurred in Kentucky, the decisions of the court of appeals of Kentucky should be controlling. It is held by that court that a brakeman and an engineer are not fellow servants, so as to prevent liability of the company to the brakeman for the negligence of the engineer. Railroad Co. v. Brook's Adm'r, 83 Ky. 131; Railroad Co. v. Moore, Id. 677. Were the question one of local law or usage, the decision of which had become a rule of property in the state, it would be our duty to regard the judgments of the Kentucky court of appeals as authoritative and final. But the question who are fellow servants, within the rule under consideration, is one of the interpretation and construction of a general contract of service according to the common law of Kentucky. It is a question of general jurisprudence, and is not local. A decision upon it could not, in its nature, have become a rule of property. Upon questions of the general common law of a state, the courts of the United States, exercising a jurisdiction concurrent with that of the state courts, are vested with the constitutional power of rendering and enforcing their independent judgment as to what the law is even if this judgment is not in accord with the conclusions of the ultimate tribunal of the state whose law they are administering. The supreme court of the United States, speaking by Mr. Justice Story, laid down the principle in the case of Swift v. Tyson, 16 Pet. 1, 18, 19, and at nearly every term since, that court has had occasion to reassert it. Many of the authorities are collated in the opinion of Mr. Justice Bradley in the case of Burgess v. Seligman, 107 U.S. 20, 34, 2 S.Ct. 10. Mr. Justice Matthews, in discussing the subject in Smith v. Alabama, 124 U.S. 465, 8 S.Ct. 564, said at page 478, 124 U.S., and...