Baker v. Philadelphia & R. Ry Co.

• Decision Date: 24 January 1907
• Docket Number: 48.
• Citation: 149 F. 882
• Parties: BAKER v. PHILADELPHIA & R. RY. CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

149 F. 882

BAKER v. PHILADELPHIA & R. RY. CO.

No. 48.

United States Circuit Court, E.D. Pennsylvania.

January 24, 1907

Charles H. Edmunds, for plaintiff.

Gavin W. Hart, for defendant.

HOLLAND District Judge.

The Central Railroad of New Jersey was using the tracks of the Philadelphia & Reading Railway Company from Bound Brook to Berks streets, in the city of Philadelphia, by an arrangement, the exact terms of which did not appear. On the morning of September 9, 1905, the plaintiff, Henry K. Baker an engineer, was in charge of a fast freight of the Central Railroad Company approaching Philadelphia. Upon arriving at Tabor Junction at about 2:34 o'clock on the morning of that day, the train was stopped by the display of a red danger signal in the tower, manned by an employe of the Reading Railway Company. Six minutes later a white light was displayed from the tower, signaling the train to proceed and, under the rules, the engineer had a right to assume the south-bound track was unobstructed, and he was authorized and in fact required, to proceed. When his train arrived at a point somewhat south of the signal station, he struck the engine and tender of a local freight belonging to the Reading Railway Company, which was crossing over from the south-bound to the north-bound track as Baker's train was passing. The Reading Railway's freight engine had no right to be at that point. The engineer (King) of this engine testified that, in violation of the rules, he had been on the south-bound track after cars without having a man out either ahead or behind his train to guard against accident. The rules governing the running of trains on both roads were uniform, and issued in accordance with the rules adopted by the American Railway Association. Rules 99 and 100 were the same for both companies. The employe in the tower who gave the signal and the train crew of the Reading Railway Company were employes of the Philadelphia & Reading Railway Company the train crew of the Jersey Central were employes of the latter company. The jury was, in substance, instructed that the man in the tower and the Reading Railway Company's crew were not fellow servants of the crew in charge of the Central Railroad Company's train, and that if the former, or either of them, were negligent, as a result of which the death of the plaintiff's son was caused, she would have a right to recover, and the court refused to instruct the jury, at the request of the defendant, that the case was governed by the statute of the state of Pennsylvania passed April 4, 1868, and further refused to instruct the jury that--

'Even though the decedent was technically upon the road of his employers, to wit, the Central Railroad of New Jersey, it was their duty to supply him with safeguards as the occasion demanded; and, having supplied him with Reading Railroad employes, they must be considered as Central Railroad employes, and that the defendant would not be liable in this suit; and further, that the towerman was a part of the means by which the train was enabled to run, and he must be considered as one of the employes necessary to move the train, and, no matter by whom employed, he was in law a co-employe of decedent.'

Under the common law, the master is not responsible for injuries received by his servant as a result of the negligence of a fellow servant engaged in the same common employment; but all the authorities are to the effect that, in order that this rule may apply, the servant whose negligence caused the injury must be an employe of the same master of the employe injured. Servants of different masters are not deemed to be fellow servants, within the meaning of this rule, although they are working together in the same common employment; they must all be under the control and direction of a common master. Coates v. Chapman, 195 Pa.St. 109, 45 A. 676; Crawford v. Wells City (D.C.) 38 F. 47; Central Railroad Co., v. Stoermer, 51 F. 518, 2 C.C.A. 360; The Wm. F. Babcock (D.C.) 31 F. 418; Thompson's Commentaries on Law of Evidence, Secs. 4846, 4996. This seems to be the law as laid down by most courts of last resort in the United States, as the collation of cases on this question found in Thompson's Commentaries, supra, will show. Servants of different railway companies, using the same tracks, are not fellow servants, so as to relieve the employer from injuries negligently inflicted by its employes upon the employes of the other company. Numerous cases cited in Thompson's Commentaries, Secs. 4998, 5000, illustrate this principle.

It is contended by the defendant that the case is covered by the statute of the state of Pennsylvania passed April 4, 1868 (P.L. 58), as follows:

'Section 1. When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or on or about any train or car therein or thereupon, of which company such person is an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee. Provided, that this section shall not apply to passengers.'

The application of this act of 1868 to cases such as the one at bar has been, in our judgment, finally settled by the decision of the Supreme Court of Pennsylvania in the case of Keck v. Philadelphia & Reading Ry. Co., 206 Pa.St 501, 56 A. 47. The facts of that case and the one here are entirely similar, with the sole exception that there was in the Keck Case no towerman to signal Keck that his track was clear for him to proceed. The Keck Case arose out of the death of the plaintiff's husband, who was an engineer on the Central Railroad of New Jersey, using the tracks of the Reading Railway Company, and was killed by running into one of the latter's trains negligently upon the track, which the Central Railroad train had a right to use at the time. Judge Mitchell, in deciding the Keck Case, reviewed all the previous decisions of the Supreme Court of Pennsylvania in which this act of assembly was considered, and held that the rules to be deduced from these cases are as follows: 'First. Where the same track is used by two railroad companies, it must be considered for the application of the act of 1868 as the property of each while using it. Secondly. Whether the use be by virtue of joint or several ownership, charter right, lease, license, or traffic agreement, is immaterial. Thirdly. To bring the case within the second class distinguished in Spisak v. B. & O.R.R. Co., 152 Pa.St. 281, 25 A. 497 (namely those where the employment is ordinarily the duty of railroad employes), the plaintiff must not only be engaged in such work, but also be so engaged for or upon the property of the railroad by whose negligence he is injured. Thus in the present case (Keck Case) the plaintiff's...