Pike v. Chicago & A.R. Co.

• Decision Date: 15 January 1890
• Citation: 41 F. 95
• Parties: PIKE v. CHICAGO & A.R. CO.
• Court: U.S. District Court — Eastern District of Missouri

41 F. 95

PIKE v. CHICAGO & A.R. CO.

United States Circuit Court, E.D. Missouri, Eastern Division.

January 15, 1890

D. P Dyer, for plaintiff.

R. H Kern, for defendant.

THAYER J.

The motion for a new trial in this case assigns various reasons why the verdict should be set aside and a retrial ordered. Among other reasons urged in support of the same, it is contended that plaintiff stood in the relation of a fellow-servant to the engineer and other trainmen in charge of defendant's train by whose alleged negligence the injury is said to have been occasioned. As this point, if well conceived, goes to the foundation of plaintiff's right of action, it will be first considered. The testimony in the case tended to show that plaintiff was stationed as a watchman at a bridge or trestle on the line of defendant's railroad; that the bridge in question, as well as the track for a distance of 1,200 feet to the east and for a distance of 700 feet to the west, thereof, was being raised and repaired at the time of the accident, to overcome a considerable down grade as the track approached either end of the trestle; that warning or 'slow lights' as they are termed, had been set at a distance of 20 telegraph poles from each end of the bridge; that it was plaintiff's duty, as watchman, to see that the slow lights were kept burning during the night, and also to inspect the track and trestle that was undergoing repair, and see that both were in a safe condition for the passage of trains; that the proper discharge of such duties required the plaintiff to pass at intervals over the track and trestle and to go to a sufficient distance in both directions from the trestle to bring the slow lights into view. The testimony showed that the plaintiff was either employed by and worked under the orders of the regular section boss, or the foreman of the construction gang that was making the repairs in question. The petition charged, in substance, that plaintiff 'was caught, struck, and thrown from the bridge' in question, by one of defendant's passenger trains on the night of June 28, 1888, and that the injury complained of was due to the negligence of the engineer and conductor of the train, in failing to give the customary warning signals as the train approached the bridge, and in running the train at a dangerous rate of speed.

If the question now under consideration was to be determined solely with reference to the rule of liability which has the sanction of the court of last resort in this state, there is no doubt that the court would be compelled to hold that the plaintiff and the trainmen-- that is, the engineer and conductor of the passenger train-- were not fellow-servants in such sense as to exempt the defendant from liability to the plaintiff for the trainmen's negligence. In the case of Sullivan v. Railway Co., 97 Mo. 114, 10 S.W.Rep. 852, a section boss was run over and killed in consequence of the negligence of an engineer in charge of a train. The negligence of the engineer appears to have consisted in the fact that he failed to keep a proper lookout, and failed to give a proper warning of the approach of the train. It was held that the company was liable for the negligent act in question, as the engineer and section boss did not at the time occupy the relation of fellow-servants. The decision in the Sullivan Case was referred to and criticised in some respects in a later case decided by the same court, to-wit, Murray v. Railway Co., 12 S.W.Rep. 252, (not yet officially reported.) Though criticised in some respects, I understand the court to adhere to the general doctrine underlying the decision, that, when working independently of each other in their respective departments of the general service, and under the immediate control of different officers or foremen, trainmen and trackmen are not to be regarded as fellow-servants, within the meaning of the rule exempting the company from liability.

A similar doctrine prevails in the state of Illinois. A foreman of a party of track repairers or sectionmen, while engaged in the discharge of his duties, was killed by a large lump of coal carelessly dropped by a fireman from the tender of a passing train. It was held, in an elaborate opinion, that the defendant company was liable to the personal representatives of the deceased for the negligent act in question. Railroad Co. v. Moranda, 93 Ill. 303. The decision in this case expressly holds that persons employed in different departments of the same general service, and under the immediate supervision of different officers or foremen, and who do not co-operate with each other in such manner as to bring them together, so that they can exercise a cautionary influence over each other, are not fellow-servants. In the case of Garrahy v. Railroad Co., 25 F. 258, Mr. Justice MILLER held, in this circuit, that a laborer employed in the business of track-laying, under the orders of a section foreman or boss, was not a fellow-servant with persons engaged in running and managing a switch-engine, that was not being used in connection with the business of track-laying, in which the laborer was engaged. In the case of Howard v. Canal Co., 40 F. 195, the United Stated circuit court for the district of Vermont held that trackmen, when engaged in their own department of the general service, are not fellow-servants with trainmen engaged in their department, in such sense as to exempt the master from liability to the former, for injuries sustained by reason of the negligence of the latter. To the same effect is the decision in Railroad Co. v. O'Brien, 21 P. 32.

So far as I am advised, the precise question now under consideration has never been decided by the supreme court of the United States. The case of Randall v. Railroad Co., 109 U.S. 482, 3 S.Ct. 322, cited by defendant's counsel merely holds that trainmen employed on one train in a railroad yard, are fellow-servants with trainmen on another train of the same company that is being operated in the same yard. The case of Railroad Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184, which has sometimes been cited in support of the proposition that persons employed in different departments of a given service are not fellow-servants, although the general object to be accomplished by the service is the same, and the employer the same, in reality only decides that the conductor of a train, who has authority to control its movements, stands in the relation of a vice-principal to other employes on the same train. The case appears to have no immediate bearing on the question how...