Kane v. Erie R. Co.

• Citation: 133 F. 681
• Decision Date: 12 December 1904
• Docket Number: 1,324.
• Parties: KANE v. ERIE R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

133 F. 681

KANE v. ERIE R. CO.

No. 1,324.

United States Court of Appeals, Sixth Circuit.

December 12, 1904

T McNamara, Jr., Geo. F. Arrel, and J. P. Wilson, for plaintiff in error.

Cushing & Clarke, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit to recover damages for the wrongful death of the plaintiff's intestate, a fireman on a switching engine at work in the yards of the defendant company at Niles, Ohio which resulted from a collision charged to have been due to the negligence of the engineer of another train, also at work in the yards. The suit could not have been maintained under the law as it stood in Ohio prior to the passage of the act of April 2, 1890 (87 Ohio Laws, p. 149), for under that law the negligence relied on was that of a fellow servant, for which the company was not liable. The suit, therefore, was based upon section 3 (page 150) of the act referred to, which reads as follows:

'Sec. 3. That in all actions against the railroad company for personal injury to, or death resulting from personal injury, of any person, while in the employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow servant, but superior of such other employe, also that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.'

Several years ago the case was tried and judgment recovered, which was reversed by this court for reasons stated in the opinion delivered by Judge Cochran, and reported in Erie Railroad Co. v. Kane, 118 F. 223, 55 C.C.A. 129. No question was raised at that time as to the constitutionality of the act. We did pass upon its construction, holding that, under the second clause of section 3, an engineer, having control of but a single employe, might be the constructive superior of the fireman of another train having control of none. When the case came on again for trial below, objection to the introduction of any testimony was sustained on the ground, among other things, that the provisions of section 3 relied on violate the Constitution of Ohio. Whether this holding was correct is the question before us now for determination.

We approach the consideration of the validity, under the Constitution of Ohio, of an Ohio law, with some reluctance; for the question is one whose determination properly belongs to the Supreme Court of Ohio. Pelton v. National Bank, 101 U.S. 143, 144, 25 L.Ed. 901. Unfortunately, although the law has been in force for 14 years, and several times before the Supreme Court of Ohio (R.R. Co. v. Margrat, 51 Ohio St. 130, 37 N.E. 11; R.R. v. Erick, 51 Ohio St. 146, 37 N.E. 128; Railway Co. v. Shanower, 70 Ohio St. 166, 71 N.E. 279), the validity of the provisions now assailed has yet to be determined by that tribunal. The lower courts of Ohio are divided on the question, the weight of authority being in favor of the constitutionality of the act. Under these circumstances, the well-settled rule that, where the constitutionality of a law is involved, every possible presumption is in favor of its validity, and continues until the contrary is shown beyond a reasonable doubt, laid down by the Supreme Court of the United States and the Supreme Court of Ohio, is peculiarly applicable. Sinking Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496; Railroad Co. v. Clinton Co., 1 Ohio St. 82, 83; State v. Cincinnati, 20 Ohio St. 33; Marmet v. State, 45 Ohio St. 64, 12 N.E. 463; State ex rel. v. Jones, 51 Ohio St. 492, 504, 37 N.E. 945.

Prior to the passage of this act the general rule in Ohio was that a railroad company was not responsible to an employe for injuries resulting from the negligence of a fellow servant, with the qualification, however, that where one employe was put under the control of another the company was liable to the former for injuries caused by the negligence of the latter, when both were acting in the common service. Little Miami R.R. Co. v. Stevens, 20 Ohio, 416; Railroad Co. v. Keary, 3 Ohio St. 201. In the latter case Judge Ranney pointed out that the risk assumed on entering the employment of a railroad company is only that resulting from the carelessness of those engaged in a common employment, and said (page 211): 'No service is common that does not admit a common participation, and no servants are fellow servants when one is placed in control over the other. ' So important was this Ohio rule, rendering a railroad company liable to a subordinate for injuries caused by the negligence of his superior, deemed to be, that it was held in the case of Railway Co. v. Spangler, 44 Ohio St. 471, 8 N.E. 467, 58 Am.St.Rep. 833, that it was not competent for a company to stipulate with its employes that this liability should not attach. It was pointed out that the liability was not created for the protection of the employes simply, but had its reason and foundation in a public necessity and policy. Page 479, 44 Ohio St., page 470, 8 N.E., 58 Am.Rep. 833.

So it appears that, under the Ohio rule as it existed when this act was passed, the relation of the negligent to the injured employe determined the liability of the company. If the negligent employe was in control of the injured one, the company was held liable, because then the two were not deemed fellow servants, engaged in a common employment, but one was regarded as the superior of the other. Recognizing this ground of distinction as existing in Ohio, section 3 not only gives it statutory force, but extends the liability of the company by broadening the class of superiors in the service and narrowing that of fellow servants. It provides that in all actions against the railroad company, for personal injury or wrongful death, it shall be held, 'in addition to the liability now existing by law'--

(1) 'That every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow servant, but superior, of such other employe;' and,

(2) 'Also that every person in the employ of such company having charge or control of employes in any separate branch or department shall be held to be the superior and not fellow servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.'

As said by Judge Davis in the recent case of Railway Co. v. Shanower, 70 Ohio St. 166, 169, 71 N.E. 279, 280:

'It (the act of April 2, 1890) declares that it is intended to add to the liability already recognized by law. It does this in two particulars: First, it makes obligatory upon the courts of this state the superior servant rule, which was first announced in this court in Little Miami Railroad Co. v. Stevens, 20 Ohio, 415, and which was afterwards approved and followed in a number of other cases in this and other states, although it has been repudiated in many others; second, it creates by force of the statute a relation of superior and subordinate where none exists in fact, and brings it within the operation of the rule mentioned.'

The exercise of authority by one employe over another is thus made the test. Any employe who exercises authority over another is 'not the fellow servant, but superior,' of such other, and every employe who exercises authority over another in his own branch or department is 'the superior, and not fellow servant,' of an employe in a separate branch or department who exercises no authority there. If the negligent employe is, by virtue of this enactment, the superior, and not fellow servant, of the injured employe, the latter did not assume the risk of his negligence, and the company is responsible.

It is to be observed that the basis of the new classification made by the Legislature is none other than that of the old made by the Supreme Court of Ohio. The class is merely broadened by a logical extension of the rule. Under the old, the company was liable for the negligence of one who exercised authority over the employe injured through his negligence (B. & O.R.R. Co. v. Camp, 65 F. 952, 13 C.C.A. 233, 243); under the new, it is liable not only for the negligence of one who exercises authority over the employe injured, but of one who, exercising authority in one branch or department, by his negligence causes the injury of an employe in another who exercises no authority there.

The contention is that the act violates the second section of the Bill of Rights of the Constitution of Ohio, which provides that 'all political power is inherent in the people; government is instituted for their equal protection and benefit;' and which, as held in the case of the State ex rel. v. Ferris, 53 Ohio St. 314, 41 N.E. 579, 30 L.R.A. 218, is not less broad than that clause of the fourteenth amendment, which provides that no state shall 'deny to any person within its jurisdiction the equal protection of the law. ' It is strongly urged that the statute, by conferring upon some employes a right to recover which is denied others, unjustly discriminates among those engaged in the same occupation, creating a favored class, and denying to those outside of it the equal protection of the law.

The doctrine is well settled that the General Assembly, in the absence of an applicable prohibition, has power to...