Opinion of the Court. one of fellow-servants. The neglect for which the plaintiff has recovered in this case was the neglect of Holverson in not taking proper care at the time when he applied the brake to the front car. It was not a neglect of that character which would make the master responsible therefor, because it was not a neglect of a duty which the master owes as master to his servant when he enters his employment. It is urged, however, in this case that this judgment may be sustained upon another and distinct proposition. The counsel for the defendant in error says that it is alleged in the amended complaint, "that as a part of the contract of hiring, the defendant engaged to carry the plaintiff to and from his work upon the defendant's road as occasion should require, in a safe and proper manner." He then argues that the defendant having as a part of its contract of hiring assumed the obligation to carry safely, it was bound to exercise the same degree of care in its discharge as in any positive duty recognized or imposed by law, and that, therefore, the negligence of Holverson in the performance of his duty, whether it be from the relation of master and servant or one specially assumed under the contract of hiring, was a neglect of the master. Although this allegation is contained in the complaint, it is denied in the answer, and there is no proof of any contract on the part of the defendant below to carry the plaintiff safely, further than is to be inferred from the fact that the company furnished hand cars which were worked by the gang and upon which they rode to and from the place of labor. If, under these circumstances, the servant be injured through the neglect of a fellow-servant, such as appears in this case, the master is not liable. The charge of the court to the jury in the matter complained of was erroneous, and the judgment must, therefore, be Reversed, and the case remanded with directions to grant a new trial. The CHIEF JUSTICE and MR. JUSTICE FIELD and MR. JUSTICE HARLAN dissented. Opinion of the Court. NORTHERN PACIFIC RAILROAD COMPANY v. CHARLESS. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 184. Argued March 26, 27, 1896. Decided April 13, 1896. The general principles of the law of master and servant, as set forth in the opinion in Northern Pacific Railroad v. Peterson, ante, 346, are applicable to the facts in this case, and govern it. The plaintiff below was a day laborer, in the employ of the Northern Pacific Railroad. With the rest of his gang he started on a hand car under a foreman to go over a part of a section to inspect the road. While running rapidly round a curve they came in contact with a freight train, and he was seriously injured. The brake of the hand car was defective. The freight train gave no signals of its approach. He sued the company to recover damages for his injuries. Held, (1) That the railroad company was not liable for negligence of its servants on the freight train to give signals of its approach, as such negligence, if it existed, was the negligence of a co-servant of the plaintiff; (2) That any supposed negligence of the foreman in running the hand car at too high a rate of speed, was negligence of a co-employé of the company, and not of their common employer; (3) That if it should be assumed that the injury might have been avoided if the brake had not been defective, the jury should have been properly instructed on that point. THE case is stated in the opinion. Mr. C. W. Bunn for plaintiff in error. Mr. Reese H. Voorhees for defendant in error. Mr. A. K. MR. JUSTICE PECKHAM delivered the opinion of the court. The plaintiff below was an ordinary day laborer employed under a section boss or foreman to keep a certain portion of the roadbed of the defendant in repair. The foreman had power to employ and discharge men, and to superintend their Opinion of the Court. work, and was himself a workman. He employed the plaintiff, who, with the rest of the men employed in the gang. some four, five or six was carried to and from his work daily on a hand car worked by the men themselves. In August, 1886, on the 28th of the month, an accident occurred as the men were on their way to their work. They were using a hand car with what is alleged to have been a defective brake. The foreman had complained of it to the yardmaster a short time before, who had promised a better one. In the meantime and as a temporary makeshift, the foreman had provided the car with a brake which consisted of a bit of wood, 4 x 4, fastened on the side of the car with a bolt, and the long arm acted as a lever and pressed the shorter portion of the timber against the wheel. In that way the car had been run for a day or two before the morning of the accident. On that day, the plaintiff with the rest of the men in the gang and the foreman started on the hand car to go over a certain portion of the section to inspect the condition of the road. They were running the car very rapidly under the direction and supervision of the foreman and had arrived at a narrow cut in the road around a curve, when they were suddenly confronted with a freight train coming through the cut in the opposite direction. There had been no warning or signal of any kind given by any of the employés on the freight train of its approach, and plaintiff below knew nothing of the fact that any freight train was expected. Efforts were made to stop the hand car, and as the speed did not seem to be slackened in time, plaintiff became frightened and undertook to jump from the front end of the car, when he stumbled over some tools that were on the car and fell between the rails in front of it. As the hand car approached him he put his foot up against it in order to prevent its running over him, but the impetus of the car was too great, and it ran over and doubled him up and wrenched his spine, causing him great internal injuries. The other hands jumped off the car, removed it from the track and took the plaintiff out of danger before the freight train passed by. The injuries of the plaintiff were of a very serious nature, and Opinion of the Court. his legs became paralyzed, and he was rendered a cripple for life. He commenced this action against the defendant below to recover damages on account of the negligence of the agents and servants of the defendant. The negligence claimed consisted in: 1. The defective break on the car, which it is alleged was an appliance for the prosecution of the work on the defendant's road and necessary to be used to enable the employés to perform their duties, and that as such appliance it was the duty of the defendant to see that it was reasonably safe and fit for the purpose intended. 2. The negligence of the foreman in charge of the gang, who directed the speed of the hand car and ran it at a hazardous rate of speed, when he knew that a train coming towards him was expected, while the other members of the gang were ignorant of that fact. 3. The negligence of the train hands on the approaching train in giving no signals of their approach around the curve and through the cut, although they were near a public crossing and some signals were necessary on that account. Upon the trial evidence was given tending to prove the above facts, and, among other things, the judge charged the jury as follows: 66 'I think that the case, when stripped of all the side issues and the incidental questions surrounding it, resolves itself into just this question for this jury to determine: Whether the injury to the plaintiff resulted directly from the negligence of the defendant in needlessly exposing him to the danger of being hurt by a collision between the hand car and the extra freight train at the place where it occurred; or, whether the injury was a mere accident, which was the result of one of the ordinary hazards of the employment in which he was engaged; whether it was an ordinary risk of his employment, or whether an extraordinary danger caused by the negligence on the part of the defendant; whether that negligence was a negligence of the foreman in running the hand car too fast up to a point which he knew to be dangerous, and which he did not warn the other men working on the hand car of, so that Opinion of the Court. it was impossible for them, without extreme hazard to their lives, to avoid a collision; or, whether the negligence was on the part of the officers in charge of the freight train in approaching a curve in the cut, which obstructed the train from view, or passing a public crossing without giving warning by sounding the whistle or engine bell. “If, in any of these respects, there was actual neglect on the part of defendant which placed the plaintiff in a situation of extraordinary danger, something clearly beyond the ordinary risks of his employment, and his injury was not in any degree owing to his own negligence at the time, the defendant would be liable to damages." The defendant below excepted to each of the above propositions, as laid down by the learned judge in his charge, and the jury rendered a verdict in favor of the plaintiff, which was affirmed by the Circuit Court of Appeals for the Ninth Circuit, and the defendant below sued out a writ of error from this court to review the judgment. Many of the facts surrounding the happening of this accident are similar in their nature to those existing in the case of the Northern Pacific Railroad Co. v. Peterson, ante, 346, just decided. The employment of the plaintiff below, the nature of the work and the powers of the section boss under whom he worked are substantially the same as those existing in the other case. We may refer to the general principles of the law of master and servant applicable to these facts which are set forth in the opinion of this court in that case, and which we think govern the case at bar upon those facts. In regard to the particular allegations of negligence above set forth, it is not necessary, in the view we take of this case, to express any opinion whether the alleged defect in the brake on the hand car rendered it a defective appliance within the meaning of the law rendering the master liable for a failure. to provide a reasonably safe and proper appliance for the work to be done by his employés. There were two other propositions submitted to the jury by the learned judge, each of which was, as we think, of a material nature and also clearly erroneous. |