Howard v. Denver & R. G. Ry. Co.

• Decision Date: 23 March 1886
• Citation: 26 F. 837
• Parties: HOWARD and Wife v. DENVER & R.G. RY. CO. [1]
• Court: U.S. District Court — District of Colorado

26 F. 837

HOWARD and Wife v. DENVER & R.G. RY. CO. ^[1]

United States Circuit Court, D. Colorado.

March 23, 1886

Rogers & Cuthbert, for plaintiffs.

E. O Wolcott, for defendant.

BREWER J.

This is a motion for a new trial which, by the direction of the trial judge, has been referred to me for decision. As I was not present at the trial, I feel at liberty to consider only the principal question upon which the ruling of the trial judge was made.

The facts which present that question are these: The plaintiffs are the parents of one John H. Howard, who, on May 19, 1883 was killed in a collision on defendant's road. Young Howard was employed as a fireman, working on the regular passenger train running west on that day from Pueblo to Leadville. That train was running on schedule time, and about a quarter of a mile west of Badger Station collided with a light engine running eastward, under the management and control of one William Ryan, its engineer. Ryan neglected his instructions, and his negligence was the proximate cause of the collision. There was no proof of incompetence on his part, or of negligence in employing him, or in the order under which he was acting and which he disobeyed. The case rested simply on the fact of his negligence. The trial judge held that his negligence was the negligence of the company and that he was not a fellow-servant with the deceased. This, then, is the single question presented. The rules of the company provided that an engineer running a light engine like this, without any separate conductor, should be regarded as both engineer and conductor. The question, therefore, is distinctly presented whether, in case of collision between a train and an engine, the negligence in the management of the engine, whereby injury results to the employes on the other train, is to be regarded as the negligence of the company, or simply the negligence of a fellow-servant. Obviously, the question is of no slight importance.

It will not be doubted that the early current of judicial decision in this country was such as to affirm that employes, situated as Ryan and the deceased, were fellow-servants. The great and leading case was that of Farwell v. Boston & W.R. Co., 4 Metc. 49, in which the opinion was written by Chief Justice SHAW. He there stated the rule to be that all persons employed by the same master, and engaged in a common enterprise, were fellow-servants, no matter what the relation in which they stood to each other. This case was generally followed, both in this country and England, and the principles enunciated thereon were accepted as correct. Nor, on the other hand, can it be questioned that the later current, both of judicial decision and legislative action, is away from that ruling in many respects.

By action of the legislature in at least two states-- Kansas and Iowa-- the railroad company is made responsible to every employe for the negligence of every other employe, so that in these states the doctrine of fellow-servants in respect to the question of negligence has ceased to have any recognition. Outside of these states, by the rulings of many courts, the case of Farwell v. Railroad Co. has been much limited and restricted. One marked limitation is this: Whereever the master owes an absolute duty to the employes, and instead of discharging that duty himself intrusts it to an agent or servant, such agent or servant is not a fellow-servant within the meaning of the rule of liability for negligence. Thus, the master owes to every employe the duty of providing a reasonably safe place in which to work, and reasonably safe instruments and machinery with which to work. This may be called a direct and absolute obligation. If the discharge of this obligation is intrusted to an agent or servant, such agent or servant is the representative of the master, and any negligence on his part is the negligence of the master.

Thus, in the case of Calor v. Charlotte, C. & A.R. Co., decided by the supreme court of South Carolina at the April term, 1885, the plaintiff, a locomotive engineer, while running his engine between Columbia and Charlotte, was injured through the negligence of a section-master and supervisor of the track-laying force, who, in disregard of the appropriate signals, took up a portion of the track, and thus derailed the engine. The court held that the true test was whether this section-master was employed to discharge the duties of the master, and also that it was the duty of the master to provide a suitable and safe place for his employes to work in and on, which duty had, in this case, been committed to the section-master. His negligence was therefore properly adjudged the negligence of the master.

The same principle was recognized in the case of Morris v. Richmond & A.R. Co., decided by the court of appeals of Virginia, in April, 1884, and reported in 8 Virginia Law J. 540. In that case, the decedent, whose administrator was plaintiff, was a brakeman on a material-train. A section gang at work on the track failed to signal the train, although it had the rails misplaced. In consequence, the train was derailed, and the decedent injured so that he died in eight hours. The court held that the section-men and the decedent were not fellow-servants, saying that 'where a company delegates to an agent or employe the performance of duties which the law makes it incumbent on the company to perform, his acts are the acts of the company,-- his negligence is the negligence of the company;' citing Brothers v. Carter, 52 Mo. 372; Flike v. Boston & A.R. Co., 53 N.Y. 549; Corcoran v. Holbrook, 59 N.Y. 517; Mullan v. Philadelphia & S.M.S. Co., 78 Pa.St. 25; Ryan v. Chicago & N.W.R. Co., 60 Ill. 171.

The case of Davis v. Central Vt. R. Co., 55 Vt. 84, is a well-considered case upon this point. In that case it appeared that, through the negligence of the company's bridge builder in constructing, and of the road-master in repairing, a culvert, it washed out, whereby a foreman was killed. The company was held responsible. The court said:

'The bridge-builder and road-master, while inspecting and caring for the defectively constructed culvert, were performing a duty, which, as between the intestate and defendant, it was the duty of the defendant to perform. Their negligence therein was the negligence of the defendant.'

Among other cases affirming the same doctrine may be cited the following: Lewis v. St. Louis & I.M.R. Co., 59 Mo. 495; O'Donnell v. Railroad Co., 59 Pa.St. 239; Nashville & C.R. Co. v. Carroll, 6 Heisk. 348; Tierney v. Minneapolis & St. L. Ry. Co., 33 Minn. 311; S.C. 23 N.W. 229; Atchison, etc., R. Co. v. Holt, 29 Kan. 149; Fuller v. Jewett, 80 N.Y. 46; Slater v. Jewett, 85 N.Y. 61; Gunter v. Graniteville Manuf'g Co., 18 S.C. 262; Gilmore v. Northern Pac. R. Co., 15 Amer.& Eng.R.Cas. 304, and note.

Another important limitation is that where an employe is placed in charge of the entire operations, or of a separate department, so that in respect to the entire work, or the separate department, he has full control, is, so to speak, a vice principal-- an alter ego-- of the master, his negligence is that of the master, and not that of a fellow-servant. Thus the general superintendent of a railroad, the superintendent of bridges, the road-master, the foreman in charge of the machine-shops, have all been declared vice-principals, and their acts the acts of the master. And in a late case, which has attracted great attention, that of the Chicago, M. & St. P. Ry. Co. v. Ross, 112 U.S. 377, S.C. 5 S.Ct. 184, it was held that the conductor of a train came within the same category. The reason underlying this is that by reason of the extent of the authority conferred, the power and discretion vested in such employe, the fact that practical supremacy and control is given to him, it is fitting that he should be regarded as the active, present representative of the master,-- one in whom the master has placed such confidence, and to whom he has so far transferred his powers, as to make him his other self. Among many authorities affirming this doctrine may be cited the following: Railroad Co. v. Fort, 17 Wall. 553; Grizzle v. Frost, 3 Fost.& F. 622; Cook v. Hannibal, etc., R. Co., 63 Mo. 397; Whalen v. Centenary Church, 62 Mo. 326; Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Lalor v. Chicago, etc., R. Co., 52 Ill. 401; Mullan v. Philadelphia, etc., S. Co., 78 Pa.St. 25; Kansas Pac. R. Co. v. Little, 19 Kan. 267; Malone v. Hathaway, 64 N.Y. 5; Brickner v. New York Cent. R. Co., 49 N.Y. 672.

An effort has been made to engraft another exception, to the effect that where the master sees fit to place one of his employes under the direction and control of another, the relation of fellow-servants does not exist, and the latter in all his actions towards the former, is the representative of the master, and his negligence the negligence of the master. As in all the subdivisions of service,-- no matter how minute,-- in all separate work,-- no matter how small the work,-- there is generally a foreman or boss in charge, having control and direction, though often working with the others, the recognition of such an exception, as thus broadly stated, would largely increase the responsibility of the master. Nevertheless, the rule has been thus laid down by several courts. The supreme court of Kentucky, in Louisville & N.R. Co. v. Bowler, 11 Alb.Law J. 119, in which case a section-hand had been injured through the negligence of his section boss, decided 'that the only sound rule is to hold the common superior, which can only act through its agents, responsible for injuries resulting to the subordinate from the negligence of his immediate superior or party having control over him. ' Similar was the ruling of my...