837--339 SUPREME COURT OF THE UNITED STATES. or control of a department. It has ever been affirmed that the employee assumes the ordinary risks incident to the service; and, as we have seen, it is as obvious that there is risk from the negligence of one in immediate control as from one simply a coworker. That the running of an engine by itself is not a separate branch of service seems perfectly clear. The fact is, all the locomotive engines of a railroad company are in the one department, the operating department; and those employed in running them, whether as engineers or firemen, are engaged in a common employment, and are fellow servants." We shall have occasion to revert to this case when we come to consider the decision in Chicago, M. & St. P. R. Co. v. Ross. In Northern P. R. Co. v. Hambly, 154 U. S. 349, 38 L. ed. 1009, 14 Sup. Ct. Rep. 983, it was held that a common day laborer in the employ of a railroad company, who, while working for the company under the order and direction of a section boss or foreman, on a culvert on the line of the company's road, receives an injury by and through the negligence of the conductor and of the engineer in moving and operating a passenger train upon the company's road, is a fellow servant with such engineer and such conductor, in such a sense as exempts the railroad company from liability for the injury so in flicted; and Mr. Justice Brown, in delivering the opinion of the court, observed: been caused by the negligence of the foreman "The general rule is, that those entering into the service of a common master become thereby engaged in a common service and are fellow servants, and, prima facie, the comThere are, mon master is not liable for the negligence of one of his servants which has resulted in an injury to a fellow servant. however, some duties which a master owes, He owes the duty to provide such as such, to a servant entering his employment. servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances, and machinery for be done. He must exercise proper diligence the accomplishment of the work necessary to "To hold the principal liable whenever in the employment of reasonably safe and[839} there are gradations of rank between the per- competent men to perform their respective son receiving and the person causing the in- duties, and it has been held in many states jury, or whenever they are employed in dif- that the master owes the further duty of ferent departments of the same general serv-adopting and promulgating safe and proper If the ice, would result in frittering away the whole rules for the conduct of his business, includCases arising being the government of the machinery and the doctrine of kellow service. tween persons engaged together in the same running of trains on a railroad track. it is a neglect of a duty which he personally identical service, as, for instance, between master be neglectful in any of these matters brakemen of the same train or two seamen of equal rank on the same ship, are compara- owes to his employees and if the employee tively rare. In a large majority of cases suffer damage on account thereof, the masthere is some distinction, either in respect to ter is liable. If, instead of personally pergrade of service, or in the nature of their em-forming these obligations, the master enployments. Courts, however, have been re-gages another to do them for him, he is liaIrctant to recognize these distinctions unless he superiority of the person causing the inJury was such as to put him rather in the category of principal than of agent, as, for example, the superintendent of a factory or railway, and the employments were so far different that, although paid by the same master, the two servants were brought no farther in contact with each other than as if they had been employed by different principals." In Central R. Co. v. Keegan, 160 U. S. 259, 40 L. ed. 418, 16 Sup. Ct. Rep. 269, Baltimore & O. K. Co. v. Baugh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914, was approved and followed in respect to its state ment as to what constitutes a vice principal. In Northern P. R. Co. v. Peterson, 162 U. S. 346, 40 L. ed. 994, 16 Sup. Ct. Rep. 843, an action had been brought in the circuit court of the United States for the district of Minnesota by Peterson to recover damages against the railroad company, alleged to have The ble for the neglect of that other, which, in "When the business of the master or em- with respect to employees under them, vice expressing the views of a majority of the principals and representatives of the master court, and the conclusion reached by him, as fully and completely as if the entire busi- cannot be reconciled with the other decisions ness of the master were placed by him under of this court hereinbefore cited. We do not one superintendent. This boss of a think that it would be proper to pass by the small gang of ten or fifteen men, engaged in case without comment, nor yet to attempt to making repairs upon the road wherever they distinguish it by considerations so narrow might be necessary, over a distance of three as to leave the courts below in uncertainty sections, aiding and assisting the regular as to the doctrine of this court on a subject gang of workmen upon each section as occa. so important and of such frequent recursion demanded, was not such a superintend- rence. The case in hand exemplifies the perent of a separate department, nor was he in plexity caused by the Ross Case. The trial control of such a distinct branch of the work court gave effect to it as establishing the 340] of the master as would be necessary to *ren- proposition that the conductor of an ordider the master liable to a coemployee for his nary freight train, with no other powers neglect. He was in fact, as well as in law, than those assumed to belong to such an ema fellow workman; he went with the gang to ployee by virtue of such a position, is a vice the place of work in the morning, stayed principal, against whose negligence the comthere with them during the day, superin-pany is bound to indemnify all the other emtended their work, giving directions in re-ployees on the train. Yet it is evident that gard to it, and returned home with them in the judges of the circuit court of appeals did the evening, acting as a part of the crew of not find themselves able to either accept or the hand car upon which they rode. The reject such a proposition, as they have certimere fact, if it be a fact, that he did not ac- fied it to us as one on which they desire our tually handle a shovel or a pick, is an unim-instructions. Such a course plainly evinces portant matter. Where more than one man is engaged in doing any particular work, it becomes almost a necessity that one should be boss and the other subordinate, but both are nevertheless fellow workmen." doubts whether, in view of the decisions both before and since, the case of Chicago, M. & St. P. R. Co. v. Ross, furnishes a safe and approved rule to guide the trial courts. While the opinion in the Ross Case contains a lucid exposition of many of the es tablished rules regulating the relations between masters and servants, and particularly as respects the duties of railroad compa went too far in holding that a conductor of a freight train is, ipso facto, a vice principal of the company. An inspection of the opinion shows that that conclusion was based upon certain assumptions, not borne out by the evidence in the case, as to the powers and duties of conductors of freight trains. Thus it was said: The last case we shall refer to is that of Oakes v. Mase, 165 U. S. 363, 41 L. ed. 746, 17 Sup. Ct. Rep. 345, where it was declared to be the settled law of this court that the relation of fellow servants exists between annies to their various employees, we think it engineer operating a locomotive on one train, and the conductor on another train on the same road; and Northern P. R. Co. v. Poirier, 167 U. S. 48, 42 L. ed. 72, 17 Sup. Ct. Rep. 741, where it was held that a brakeman on a regular train of a railroad and the conductor of a wild train, on the same road, are fellow servants, and the railroad company is not responsible for injuries happening to the former by reason of a collision of the two trains, caused by the negligence of the latter and by his disregard of the rules of the company. Without attempting to educe from these cases a rule applicable to all possible circumstances, we think that we are warranted by them in holding in the present case that, in the absence of evidence of special and unusual powers having been conferred upon the conductor of the freight train, he, the engineer, and the brakemen, must be deemed to have been fellow servants within the meaning of the rule which exempts the railroad company, their common employer, from liability to one of them for injuries caused by the negligence of another. This conclusion is certainly sound unless we are constrained to hold otherwise by the decision in Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377, 28 L. ed. 787, 5 Sup. Ct. Rep. 184, already referred to. That was a case wherein an action was maintained, [341]brought by a locomotive engineer to recover damages received in a collision caused by the negligence of the conductor of the train; and it must be admitted that the reasoning employed by Mr. Justice Field, in his opinion "We know from the manner in which railways are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is as-[348] signed. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the terms is he a fellow servant with the firemen, the brakemen, the porters, and the engineer. The latter are fellow servants in the running of the train under his direction; as to them and the train, he stands in the place of and represents the corporation." We think these statements attribute duties and powers to conductors of freight trains much greater than ordinarily exist. Several of the instances of control assigned to the conductor really belong to the engineer, who, as railroads are now operated, is a much more important functionary in the actual movements of the train, when in motion, than the conductor. It is his hand that regu lates the application of the brakes that control the speed of the train, and in doing so he acts upon his own knowledge and observa 342-345 SUPREME COURT OF THE UNITED STATES. tion, and not upon orders of the conductor. | no neglect, it would seem as though he was Particularly has this become the case since absolved from all responsibility, and that the the introduction of the air train-brake party who caused the injury should be himsystem. We can take notice of the act of self alone responsible. It may be said that March 2, 1893 (27 Stat. at L. 531), which this is only passing from one difficulty to anenacted "that it shall be unlawful for any other, as it leaves still to be settled what is common carrier engaged in interstate com- positive duty and what is personal neglect; merce by railroad to use on its line any and yet, if we analyze these matters a little, locomotive engine in moving interstate traffic there will appear less difficulty in the ques-(34 not equipped with a power-driving wheel tion. Obviously, a breach of positive duty brake and appliances for operating the train- is personal neglect; and the question in any brake system, or to run any train in such given case is, therefore, What is the positive traffic after said date that has not a suffi- duty of the master? He certainly owes the cient number of cars in it so equipped with duty of taking fair and reasonable precaupower or train-brakes that the engineer on tions to surround his employee with fit and the locomotive drawing such train can con- careful coworkers, and the employee has a trol its speed without requiring brakemen right to rely upon his discharge of this duty. to use the common hand-brake for that pur- If the master is careless in the matter of empose." We do not refer to this statute as ploying a servant, it is his personal neglect; directly applicable to the case in hand, but and if without proper care in inquiring as to tent person the fact that he has an incompeas a legislative recognition of the dominant his competency he does employ an incompeposition of the engineer. tent, and therefore an improper, employee is a matter of his personal wrong, and owing to his personal neglect. And if the negligence of this incompetent servant works injury to a coservant, is it not obvious that the master's omission of duty enters directly and properly into the question of responsibility? If, on the other hand, the master has taken all reasonable precautions to inquire into the competency of one proposing to enter into his service, and as the result of such reasonable inquiry is satisfied that the employee is fit and competent, can it be said that the omitted any personal duty; and this, notmaster has neglected anything, that he has withstanding that after the servant has been employed it shall be disclosed that he was incompetent and unfit? If he has done all that reasonable care requires to inquire into the competency of his servant, is any neglect imputable to him? No human inquiry, no possible precaution, is sufficient to absolutely determine in advance whether a party under certain exigencies will or will not do a negli gent act. So it is not possible for the master, take whatsoever pairs he may, to secure employees who will never be guilty of any negli not sometimes do a negligent act? Neither gence. Indeed, is there any man who does is it possible for the master, with any or He may be misdinary and reasonable care, always to secure competent and fit servants. taken, notwithstanding the reasonable precautions he has taken. Therefore, that a servant proves to be unfit and incompetent, or that in any given exigency he is guilty of a negligent act resulting in injury to a fellow servant, does not of itself prove any omission of care on the part of the master in his employment; and it is only when there is such[345] omission of care that the master can be said to be guilty of personal wrong in placing or continuing such servant in his employ, or has done or omitted aught justifying the placing upon him responsibility for such employee's negligence. Cases are cited in the opinion in the Ross Case in which it has been held by the supreme court of Ohio and by the court of appeals of Kentucky that railroad companies are responsible for negligence of conductors [843]to other employees. *But those courts do not accept the ordinary rule exempting the master from liability to a servant for the negliAt least, they gent conduct of his fellows. do not apply such a rule to the extent that this and other courts have done. They hold that 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. In so far as the decision in the Case of Ross is to be understood as laying it down, as a rule of law to govern in the trial of actions against railroad companies, that the conductor, merely from his position as such, is a vice principal, whose negligence is that of the company, it must be deemed to have been overruled, in effect if not in terms, in the subsequent case of Baltimore & O. R. Co. v. Baugh, before cited. There Mr. Justice Brewer, in commenting upon the proposition applied in the Ross Case, that the conductor of a train has the control and management of a distinct department, said: "But the danger from the negligence of one specially in charge of the particular work is as obvious and as great as that of those who are simply coworkers with him in it. Each is equally with the other an ordinary risk of the employment. If he is paid for the one, he is paid for the other; if he assumes the one, he assumes the other. Therefore, so far as the matter of the master's exemption from liability depends upon whether the negligence is one of the ordinary risks of the employmnet, and thus assumed by the employee, it includes all coworkers to the same end, whether in control or not. But if the fact that the risk is or is not obvious does not control, what test or rule is there which determines? Rightfully this, there must be some personal wrong on the part of the master, some breach of positive duty on his part. If he discharges all that may be called positive duty, and is himself guilty of 190 “Again, a master employing a servant impliedly engages with him that the place in which he is to work and the tools or ma chinery with which he is to work, or by which 175 U. S. The principle in the Ross Case covers this case, and requires, in my opinion, a judgment of aflirmance." So, likewise, Mr. Chief Justice Fuller dissented in the Baugh Case for the express reason that, in his opinion, the case came within the rule laid down in Chicago, M. & St. P. R. Co. v. Ross. he is to be surrounded, shall be reasonably | limitations placed by them upon it, the corsafe. It is the master who is to provide the rectness of its general doctrine, and asserts place and the tools and the machinery, and that the risks which an employee of a comwhen he employs one to enter into his ser- pany assumes from the service which he unvice he impliedly says to him that there is no dertakes is from the negligence of one in imother danger in the place, the tools, and the mediate control, as well as from a coworker, machinery, than such as is obvious and neces- and that there is no superintending agency sary. Of course, some places of work and for which a corporation is liable, unless it some kinds of machinery are more dangerous extends to an entire department of service. than others, but that is something which in- A conclusion is thus reached that the comheres in the thing itself, which is a matter pany is not responsible in the present case of necessity, and cannot be obviated. But for injuries received by the fireman from the within such limits the master who provides negligent acts of the conductor of the engine. the place, the tools, and the machinery owes a positive duty to his employee in respect thereto. That positive duty does not go to the extent of a guarantee of safety, but it does require that reasonable precautions be taken to secure safety, and it matters not to the employee by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the To conclude, and not to subject ourselves discharge of that duty, and if the master, in- to our own previous criticism, of proceeding stead of discharging it himself, sees fit to upon assumptions not founded on *the evi-[347] have it attended to by others, that does not dence in the case, we shall content ourselves change the measure of obligation to the em- by saying that, upon the facts stated and cerployee, or the latter's right to insist that tified to us by the judges of the circuit court reasonable precaution shall be taken to se- of appeals, we cannot, as a matter of law, cure safety in these respects. Therefore it based upon those facts and upon such com. will be seen that the question turns rather mon knowledge as we, as a court, can be supon the character of the act than on the rela-posed to possess, hold a conductor of a tions of the employees to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master: but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor. But, it may be asked, is not the duty of seeing that I concurred in the opinion and judgment competent and fit persons are in charge of any particular work as positive as that of of this court in Chicago, M. & St. P. R. Co. 346] providing *safe places and machinery? Un- v. Ross, 112 U. S. 377, 28 L. ed. 787, 5 Sup. doubtedly it is, and requires the same vigil. Ct. Rep. 184, and do not now perceive any ance in its discharge. But the latter duty sound reason why the principles announced is discharged when reasonable care has been in that case should not be sustained. In my taken in providing such safe place and ma-judgment the conductor of a railroad train is chinery, and so the former is as fully discharged, when reasonable precautions have been taken to place fit and competent perBons in charge. Neither duty carries with it an absolute guaranty. Each is satisfied with reasonable effort and precaution." Accordingly, the conclusion reached was that, although the party injured was a fireman, who was subject to the orders and control of the engineer, in the absence of any conductor, there was no liability on the company for negligence of the ad interim conductor. freight train to be a vice principal within Accordingly we answer the first question Mr. Justice Harlan dissenting: the representative of the company in respect of its management, all the other employees on the train are his subordinates in matters involved in such management, and for injury received by any one of those subordinates during the management of the train by reason of the negligence of the conductor the railroad company should be held responsible. As the conductor commands the movements of the train and has general control over the employees connected with its operation, the company represented by him ought to be held responsible for his negligence resulting in injury to other employees discharging their duties under his immediate orders. If in such case the conductor be not a vice principal, it is difficult to say who among the officers or agents of a corporation sued by one of its employees for personal injuries ought to be regarded as belonging to that class. "The opinion of the majority not only lim-Having these views, I am compelled to withits and narrows the doctrine of the Ross hold my assent from the opinion and judg Case, but, in effect, denies, even with the ment in this case. That this reasoning and conclusion were inconsistent with those in the Ross Case is not only apparent on comparing them, but further appears in the dissenting opinion in the Baugh Case of Mr. Justice Field, who was the author of the opinion in the Case of Ross. He said: (See S. C. Reporter's ed. 348-354.) Equal protection of laws to corporations— 1. A statute making a railroad company liable fixed to it by the state court of last resort will not be disregarded by the United States Supreme Court, and a different construction [No. 71.] injury was bound to conform, and did con. "Third. Where such injury resulted from the act or omission of any person done or made in obedience to any rule, regulation, or by-law of such corporation, or in obedi ence to the particular instructions given by any person delegated with the authority of the corporation in that behalf. 66 'Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, round house, locomotive engine, or train upon a railway, or where such injury was caused by the negligence of any person, coemployee, or fellow servant engaged in the same common service in any of the several departments of the *service of any such cor-[350] poration, the said person, coemployee, or fellow servant, at the time acting in the place, and performing the duty, of the corporation in that behalf, and the person so injured, obeying or conforming to the order of some Argued and Submitted October 26, 27, 1899. superior at the time of such injury having Decided December 11, 1899. NA CERTIFICATE from the United 0 States Circuit Court of Appeals for the Seventh Circuit presenting the question of the constitutionality of a state statute which makes railroad companies liable to employees injured by negligence of fellow servants. Statute upheld. the authority to direct; but nothing herein "For the entire act reference is made to Session Laws of 1893, page 294, Burns's Annotated Indiana Statutes, Revision of 1894, paragraphs 7083 to 7087, inclusive. "The Lake Erie & Western Railroad Company is a corporation of the state of Illinois owning and operating a railroad extending Statement by Mr. Chief Justice Fuller: from Peoria, Illinois, into and through the This case comes to this court on the fol-state of Indiana. It is contended that the lowing certificate of the United States cir- statute referred to is invalid because inconcuit court of appeals for the seventh circuit:sistent with the 14th Amendment of the [349] *"In this case, duly argued and submitted to this court, there arises a question of law concerning which this court desires the instruction of the Supreme Court of the United States The action was brought by the plaintiff in error to recover damages for an injury suffered while in the employment of the defendant in error, caused by a negligent act of a fellow servant, for which the defendant in error is alleged to be responsible by force of an act of the legislature of Indiana approved by the governor of the state March 4, 1893. The first section of the act reads as follows: "1. That every railroad or other corporation, except municipal, operating in this state, shall be liable in damages for personal injury suffered by any employee while in its service, the employee so injured being in the exercise of due care and diligence, in the following cases: "First. When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools, and machinery connected with or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person intrusted by it with the duty of keeping such way, works, plant, tools, or machinery in proper condition. "Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employee at the time of the Constitution of the United States. If it be invalid the declaration shows no cause of action, and the errors alleged to have been committed at the trial become immaterial. The opinion of this court is that material error was committed at the trial for which the judgment below should be reversed if the statute mentioned is valid, and that if the statute mentioned is invalid the judgment should be affirmed. The question whether that statute is valid or violates the 14th Amendment of the Constitution of the United States the court hereby orders certified and submitted to the Supreme Court of the United States for its proper decision." Mr. Addison C. Harris argued the cause and filed a brief for plaintiff in error: It is too late to say that a state may not regulate the liability of railroad companies towards their employees for injuries suffered by the negligence of a coemployee or fellow servant. Chicago & N. W. R. Co. v. McLaughlin, 119 U. S. 566, 30 L. ed. 477, 7 Sup. Ct. Rep. 1366; Missouri P. R. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep. 1161; Minneapolis & St. L. R. Co. v. Herrick, 127 U. S. 210, 32 L. ed. 109, 8 Sup. Ct. Rep. 1176; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 32 L. ed. 585, 9 Sup. Ct. Rep. 207; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Magoun v. Illinois |