McMaster v. Illinois Central Railroad Co.
| Decision Date | 27 February 1888 |
| Citation | 65 Miss. 264,4 So. 59 |
| Court | Mississippi Supreme Court |
| Parties | KATE MCMASTER v. ILLINOIS CENTRAL RAILROAD COMPANY |
APPEAL from the Circuit Court of Copiah County, HON. T. J. WHARTON Judge.
This is an action for damages against the Illinois Central Railroad Company, brought by Mrs. Kate McMaster for the killing of her son, Stephen J. Redding.
The declaration sets out that Redding was, on November 18, 1886 employed as a brake-man on one of defendants' freight trains; that this train on that day was going northward; that Redding was on the train when it left Manchac; that when the train reached the next station, Ponchatoula, both stations being in the State of Louisiana, it was discovered by the conductor and other employees of the train that Redding was missing. They supposing that he had fallen or been thrown from the train, and had probably fallen on the track, so informed the conductor and other employees of the south-bound passenger train, then at Ponchatoula, and cautioned the conductor and crew of the passenger train to run slowly and cautiously, and to keep a look out for Redding. The declaration further alleges that the conductor and other employees of the passenger train wholly failed to regard such warnings; but recklessly and wilfully proceeded at the usual rate of speed of said train, to wit, about thirty miles per hour, and that this train ran over and killed Redding, who was lying on the track in an unconscious condition and unable to move.
The defendant demurred to the declaration on the ground that it showed that Redding came to his death by the carelessness and negligence of fellow servants. The court sustained the demurrer. The plaintiff appealed.
Affirmed.
L. B Harris, for the appellant.
The decisions are not harmonious as to the liability of the company for the negligence of conductors and engineers whereby servants of the company are injured.
The books undertake to fix the relation as to who are and who are not fellow-servants, much of it arbitrary and conflicting and without simplicity--this last, a thing much needed for the sake of both public and private interests. Later decisions are tending to some plain rule, and to this end and notably is the case of Railway v. Ross, 112 U. S. S. C. Rep., p. 377, and, although by a divided court decided, holding the negligence of a conductor the negligence of the company, saying: "If the conductor does not represent the company, then the train is operated without any representative of the owner."
In the above case the company was held liable for the negligence of a conductor, whereby the engine-driver was injured. As bearing on this point, the court may examine Bass v. Railway Co., 36 Wis. 450; Railway Co. v. Miller, 19 Mich. 305; Ranch v. Lloyd, 31 Pa. 358; Railway v. Powell, 40 Ind. 37; Railway v. McMurray, 98 Ind. 358, and 1 Wood Railway Law, 449 and cases cited.
W. P. & J. B. Harris, for the appellee.
This Court has put the conductor on the footing of the engineer and others, not only of other trains, but of his own train.
He is put in by designation.
"Who are 'fellow servants' within the rules? Those who "are co-workers in the same common enterprise under the same "master and compensated by him. The conductor, engineer, "brakemen and firemen are fellow servants."
N. O., J. & G. N. R. R. Co. v. Hughes, 49 Miss. 283, 284, 285; R. R. Co. v. Doyle, 60 Miss. 977.
The exception made to the rule of this Court and those following the cases of Murray v. S. C. Ry. Co., 1 McMullan, 385, Farwell v. Ry. Co., 4th Met., Mass., 49, Priestly v. Fowler, 3 Mees & W., p. 1, is limited as we see to the special case of the crew of the train under the immediate control of the conductor of that train. When we go outside of that train to servants of the same master not there placed, he stands under the rule as we have held it to be, for the Louisiana Court has not in any case gone beyond the case thus stated.
Beach has taken this view of Ry. Co. v. Ross. Beach Cont. Neg., p. 337.
It will be apparent, that to hold that a representative of a single function of the master ceases to be a fellow servant, universally, the whole rule goes overboard.
If, therefore, we should feel that we are required to adopt the Louisiana view of the rule as to fellow servants, and make the same company, for the same people, and the same road, and the same journey change characters or relations, two or three times on a trip from Chicago to New Orleans, the case is not here presented, because the servant injured was not under the authority of the conductor of the passenger train, and yet a fellow servant under a common master, according to the principal rule.
It is to be remembered that it is not a statute or any positive law of Louisiana that is under consideration as regards this point, but the opinion of the Supreme Court of that State as to the law governing a conductor and his 'crew' on his train and while running the same.
Where states live under identically the same law as to relations of master and servant, the state of the former ought to interpret that law.
It is not to be assumed as the possible tendency of the Louisiana Courts, that the conductors are not in the category of fellow servants to any employees, and that he is universally vice-principal. He is vice-principal only as to his own 'crew,' and except as to the special function on the train and train hands, a fellow-servant of all others. Other result or consequence, we in Mississippi, under a different interpretation of the common law, are not bound in amity to give to the doctrine.
If a brakeman on one train of a railroad company is the fellow servant of the employees in charge of, or operating another train of the same company, on the same road, the declaration was demurrable.
There is some diversity of authority as to who are fellow servants, within the meaning of the rule which exempts the master or employer from liability to those engaged in his employment, for injuries suffered by them, as the result of the negligence or misconduct of other servants employed by him and engaged in the same common business; but subjection to control and direction by the same common master, in the same common pursuit, furnishes the true test of co-service. When servants are employed and paid by the same master, and their duties are such as to bring them into such a relation that the negligence of the one in doing his work may injure the other in the performance of his, then they are engaged in the same common business, and being subject to the control of the same master, they are fellow servants, within the generally accepted meaning of the rule, no matter how different the grades of service or compensation may be, or how diverse or distinct their duties may be. 3 Wood's Railway Law, 1494, et seq.
And when the relation of fellow servants is established there can be no recovery from the common master or employer by one of them for an injury occasioned to him through the negligence or misconduct of his co-employee. In order to render the master liable in such case it would be necessary to show that the negligent servant was incompetent, and that he was selected without reasonable care and...
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