Illinois Cent. R. Co. v. Hart

• Decision Date: 08 February 1910
• Docket Number: 1,987.
• Citation: 176 F. 245
• Parties: ILLINOIS CENT. R. CO. v. HART.
• Court: U.S. Court of Appeals — Sixth Circuit

176 F. 245

ILLINOIS CENT. R. CO. v. HART.

No. 1,987.

United States Court of Appeals, Sixth Circuit.

February 8, 1910

It is the settled rule in the federal courts that an employer is not liable for an injury to an employé by the negligence of another employé engaged in the same general undertaking, and it is not necessary that an employé should be engaged in the same operation or particular work; but it is sufficient if the two are in the employment of the same master and engaged in the same common enterprise, both performing duties tending to accomplish the same general purpose, although they may be in different departments.

The defendant in error (plaintiff below, and hereafter called the plaintiff) recovered verdict and judgment against the plaintiff in error, as defendant below, on account of personal injuries suffered by the plaintiff. The case was heard upon the following statement of facts, agreed upon between counsel at the trial:

'On the 17th of September, 1907, Robert Lee Hart, the plaintiff, was employed by the Illinois Central Railroad Company as a signalman. His duties were to keep the boxes and appliances used with the electric signal service of the company in repair, and he was at that time assigned to a certain section of the railroad. At the place where he was assigned, the block signal service was in operation on the line of the defendant, Illinois Central Railroad Company and its railroad at that place consisted of a double track one track for the use of its north-bound trains, and one track for the use of its south-bound trains. The trains operated by the defendant, Illinois Central Railroad Company, were operated by means of electric block signals. These signals are in the form of a high pole with a semaphore, and work automatically by means of electric batteries and wires; the semaphore being connected with the rails of the track, so that a train, in passing over the rails by one of the signals will cause the same to work automatically, and to display a signal which will indicate to any other train approaching on the same track that the block, which is the portion of the track between signals, is occupied by another train, and under the rules of the company, no train is permitted to enter a block which is so occupied. When the train passes out of the block, the signal is automatically displayed so as to indicate that the block is empty and not occupied by a train; and all of the trains upon the road are operated in this manner, and proceed in accordance with the signals from the semaphores of the various blocks. On the above date, to wit, September 17, 1907, Hart was engaged in the discharge of his duties as a signalman, and in the act of repairing one of the batteries in connection with the block signal service, near the town of East Cairo, and so engaged on the west side of the west or south-bound track, when a passenger train of the defendant company approached, running on the east track, at the rate of some 50 or 60 miles an hour, and just before the train reached the place where Hart was at work, and at the crossing of a road, the baggage master of the train threw or kicked from the baggage car, a bag of ice, weighing about 100 pounds, and which bag, owing to the momentum of the train, when it struck the ground, skidded across the south-bound track, and out more than 20 feet from the north-bound track, to the place where Hart was standing, and struck and broke his leg, and otherwise injured him. The bag of ice was put upon the train south of East Cairo, for the purpose of being thrown or kicked off at this place. It was company ice; that is, ice which the railroad company furnished to its section men in warm weather, and was thrown off at this place for the use of those employes. That this was done without the knowledge of this man, and that he, at the time, was a stranger on that part of the work, had simply been put there a few days in interchange with another employe of the company, who had been sick at that time; that this bag of ice was directed by the depot agent at the town of Wickliffe to be so kicked off of that fast running train, and when it was placed upon the train by the agent, or by his orders, it was known that the train would not stop at that place, and it was indicated that it should be kicked off from the train when running at this high rate of speed.'

It was agreed that, if the defendant should be held liable, the amount of the verdict for plaintiff should be $3,500. At the conclusion of the statement (no other evidence being introduced) the defendant moved for the direction of a verdict in its favor, upon the ground that the men engaged in the operation of the train, including the baggage master, were fellow servants of the plaintiff. This motion was overruled, and the jury instructed to return a verdict in favor of the plaintiff, for $3,500. The writ of error brings up for review the action of the court, not only in refusing to direct a verdict for the defendant, but also in directing a verdict for the plaintiff.

C. N. Burch, for plaintiff in error.

K. D. McKellar, for defendant in error.

Before SEVERENS and WARRINGTON, Circuit Judges, and KNAPPEN, District judge.

KNAPPEN District Judge (after stating the facts as above).

It is contended on plaintiff's behalf that the court rightly directed a verdict for the plaintiff, upon the ground, first, that the baggageman, in so throwing or kicking the ice off the train, was acting, not in the performance of his duties as baggageman, but 'merely doing what the master himself had planned and directed him to do,' it being shown, as insisted, that it was the custom of the railroad company to have this ice so distributed by putting the same off rapidly moving trains, and that the act in question was thus 'in accordance with a fixed purpose and plan'; and, second, because the act of so throwing off the ice was a breach of the employer's duty to provide the employe with a safe place to work.

It is clear that unless this method of putting the ice off the moving train is shown to have been either expressly or impliedly authorized by the railroad company, or permitted by it, with knowledge of the existence of the alleged custom (or unless it shall be held that the act in question constituted a breach of the employer's duty to provide plaintiff a safe place to work), the act of the baggageman was the act of a fellow servant of the plaintiff. There being no Tennessee statute governing the relations in question, it is unnecessary to look to the decisions of the Supreme Court of that state; the question being one of common-law liability of the employer, and thus one of general law. B. & O.R.R. Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772; Newport News & M.V. Co. v. Howe (C.C.A., 6th Circuit) 52 F. 362, 3 C.C.A. 121; Kinnear Mfg. Co. v. Carlisle (C.C.A., 6th Circuit) 152 F. 933, 936, 82 C.C.A. 81.

The rule is well settled in the courts of the United States that an employer is not liable for an injury to an employe occasioned by the negligence of another employe engaged in the same general undertaking; that it is not necessary to the application of this rule that an employe should be engaged in the same operation or particular work; that it is enough to bring the case within the general rule of exemption if they are in the employment of the same master and engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purpose; or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end. Among the cases which declare this rule the following decisions of the Supreme Court and of this court may be cited: B. & O.R.R. Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772; Oakes v. Mase, 165 U.S. 363, 17 Sup.Ct. 345, 41 L.Ed. 746; No. Pacific R.R. Co. v. Poirier, 167 U.S. 48, 17 Sup.Ct. 741, 42 L.Ed. 72; New England R.R. Co. v. Conroy, 175 U.S. 323, 20 Sup.Ct. 85, 44 L.Ed. 181; Grady v. Southern Ry. Co., 92 F. 491, 494, 34 C.C.A. 494; Thomas v. C.N.O. & T.P.R. Co. (C.C.) 97 F. 245; Kinnear Manf'g Co. v. Carlisle, 152 F. 933, 82 C.C.A. 81.

The cases thus far referred to involve the relation between employes in the same department of labor, including engineer and fireman and conductor and brakeman of the same train, engineer on one train and conductor on another, brakeman on regular train and conductor of wild train, foreman and employe in repair or manufacturing shops, and yardmaster and fireman of switchyard. The authorities are equally express that the relation of fellow servant is not taken away by the fact of their employment in different departments of the same general service. In Quebec S.S. co. v. Merchant, 133 U.S. 375, 10 Sup.Ct. 397, 33 L.Ed. 656, a ship's carpenter in the deck department was held a fellow servant of the porter in the steward's department. In Northern Pacific R.R. Co. v. Hambly, 154 U.S. 349, 14 Sup.Ct. 983, 38 L.Ed. 1009, a common day laborer in the employ of the railroad company, working under the direction of a foreman on a culvert on the line of the railroad was held a fellow servant with the engineer and conductor engaged in operating a passenger train upon the same road; the court saying (page 357 of 154 U.S., page 984 of 14 Sup.Ct. (38 L.Ed. 1009)):

'As a laborer upon the railroad track, either in switching trains or repairing track, is constantly exposed to the danger of passing trains, and bound to look out for them, any negligence in the management of such train is a risk which may or should be contemplated by him in entering upon the service of the company.'

In Texas & Pacific Ry. Co. v. Burman, 212 U.S. 536, 29 Sup.Ct. 319, 53 L.Ed. 641, both the...