H. was foreman of an extra gang of laborers for plaintiff in
error on its road, and as such had charge of and superintended the
gang in putting in ties and assisting in keeping in repair three
sections of the road. He had power to hire and discharge the hands
(13 in number) in the gang, and had exclusive charge of their
direction and management in all matters connected with their
employment. The defendant in error was one of that gang, hired by
H., and subject, as a laborer, while on duty with the gang, to his
authority. While on such duty, the defendant in error suffered
serious injury through the alleged negligence of H., acting as
foreman in the course of his employment, and sued the railroad
company to recover damages for those injuries.
Held that
H. was not such a superintendent of a separate department, nor in
control of such a distinct branch of the work of the company, as
would be necessary to render it liable to a co-employee for his
neglect, but that he was a fellow-workman, in fact as well as in
law, whose negligence entailed no such liability on the company as
was sought to be enforced in this action.
The duties of a railroad company, as master, towards its
employees, as servants, defined, and it is held that if the master,
instead of personally performing these obligations, engages another
to do them for him, he is liable for the neglect of that other,
which, in such case, is not the neglect of a fellow-servant, but of
the master.
The previous cases in this Court on this subject examined, and
found to determine
Page 162 U. S. 347
the following points as to the liability of a railroad company
for injuries to an employ alleged to have been caused by the
negligence of another employee while the injured person was in the
performance of his
ordinary duties:
(1) That the mere superiority of the negligent employ in
position and in the power to give orders to subordinates is not
aground for such liability.
(2) That in order to form an exception to the general law of
nonliability, the person whose neglect caused the injury must be
one who was clothed with the control and management of a distinct
department, and not of a mere separate piece of work in one of the
branches of service in a department.
(3) That when the business of the master is of such great and
diversified extent that it naturally and necessarily separates
itself into departments of service, the persons placed by the
master in charge of these separate branches and departments, and
given control therein, may be considered, with reference to
employees under them, vice-principals and representatives of the
master as fully as if the entire business of the master were placed
by him under one superintendent.
There is no proof of a separate contract of hiring by which the
railroad company assumed obligations towards the defendant in error
in excess of those ordinarily assumed by a company towards those
employed by it as laborers.
This action was commenced by the plaintiff below (defendant in
error) in the United States Circuit Court for the District of
Minnesota, Fourth Division, to recover damages against the
defendant alleged to have been sustained on account of its
negligence. The plaintiff was in the service of the corporation
when the injury was sustained.
The defendant denied any negligence and set up that whatever
injury plaintiff below sustained was caused by his own neglect and
carelessness.
The case came to trial, and evidence tending to show the
following facts was given: the plaintiff was a day laborer, and he
and several others, in July, 1890, were at a place called "Old
Superior," a station on the line of the defendant's road. They had
been working on the road at that point, but, work becoming scarce,
they had applied to one Mongavin, who was a roadmaster of the
defendant, and at that time stationed at Old Superior, for
employment. Mongavin told them he had no more work for them there,
but he would send them up to
Page 162 U. S. 348
Poplar, and they could go to work there if they wanted to; that
they could go up there, and go on an extra gang that Holverson was
running. He furnished them with passes to Poplar, and the men went
up, and were placed at work by Holverson on his extra gang. The
work which was to be done was repairing the road and roadbed,
putting in new ties where necessary, and work of that general
nature.
After the plaintiff and his companions were employed by
Holverson on the extra gang, it then amounted, in numbers, to 13
men, with Holverson as foreman. The extra gang had duties precisely
of the same kind as those pertaining to the regular section gang
which was employed on each section of the road to keep the same in
repair. The road was divided into sections of about six miles in
length, and the purpose of the extra gang was to help out the other
gangs when the work on their sections became too much for the
regular gang to do. Each section had a section foreman or boss
under whom the section gang worked. The extra gang over which
Holverson had charge and into which plaintiff and his associates
entered, instead of confining its assistance to one section,
worked, where necessary, over a distance of three sections.
Holverson had power to employ men and also to discharge them. The
tools used by the men in repairing the road were furnished by the
company. They were sent to Holverson, who gave them to the men as
they required them. The men were stationed at Poplar, and were
taken each morning on handcars to the place where they were to work
during the day, and when the work was finished, were brought back.
The members of the gang themselves worked the handcars, Holverson
generally occupying a place on the front handcar and taking care of
the brakes and applying them when thought necessary. He always went
with the gang, superintended their work, even if taking no part in
the actual manual labor, and came home with them at the end of the
day's labor.
About a month after plaintiff had been working in this extra
gang, and on the 19th of August, 1890, while returning on the
handcar with the rest of the gang from the day's work,
Page 162 U. S. 349
the accident out of which this suit arises occurred. Holverson
occupied his accustomed place on the front handcar at the brakes.
The plaintiff and several of his associates were on the same car.
The second car was occupied by the remainder of the gang. While
proceeding around a curve on the track, Holverson thought he saw
some object in front of him, and he applied his brakes, as was
said, very suddenly, in consequence of which the car was abruptly
stopped. He gave no warning of his intention, and the rear car was
following so closely that it had no chance to stop before running
into the car ahead, the result of which was that the first car was
thrown from the track, throwing plaintiff off the car, and injuring
his leg by having the rear car run over it.
It was alleged that the brakes on the rear car were defective,
and that on that account the rear car could not be stopped as
readily as it would otherwise have been. This issue was not
insisted upon, and was not in fact submitted to the jury. There is
also evidence that the handcars were being run at the unusual rate
of speed of from 12 to 15 miles an hour. Other evidence was given
in regard to the nature of the wound and the alleged neglect of
Holverson and the injuries sustained by plaintiff below.
The court, among other things, charged the jury as follows:
"The plaintiff claims his injuries resulted from the negligent
act of Holverson, who was the defendant's foreman of an 'extra gang
of laborers,' of whom the plaintiff was one, working on the
defendant's road."
"The defendant claims they resulted from the negligence of the
plaintiff's fellow servants, and also claims that Holverson was a
fellow servant of plaintiff. Whether he was so or not depends on
the relation he sustained to the defendant company, and the court
instructs you that if you find from the evidence that Holverson was
a 'foreman on extra gang' for the defendant company, and that as
such foreman he had the charge and superintendency of putting in
ties and lining and keeping in repair three sections of the
defendant's road; that he hired the gang of hands, about thirteen
in number, to do this work for the company, and had the exclusive
charge and
Page 162 U. S. 350
direction and management of said gang of hands in all matters
connected with their employment, and was invested with authority to
hire and discharge the hands to do said work at his discretion, and
that plaintiff was one of the gang of hands so hired by Holverson,
and that the plaintiff was subject to the authority of Holverson in
all matters relating to his duties as a laborer, then the plaintiff
and Holverson were not fellow servants in the sense that will
preclude the plaintiff from recovering from the railroad company
damages for any injury he may have sustained through the negligence
of Holverson, acting in the course of his employment as such
foreman."
"If you find Holverson was not a fellow servant of the
plaintiff, but representing the company, then, as was well observed
by counsel for defendant, the question, under the evidence in the
case, for your determination is was the injury the result of the
negligent act of Holverson, the defendant's agent, who was riding
on and had charge of the front handcar, or was it the negligence of
the hands who were on and operating the hind car? If the negligence
of the men on the hind car occasioned the accident, the defendant
is not liable, but if the accident resulted from the negligent act
of Holverson, the defendant is liable."
"You have heard the evidence relating to the functions and duty
of Holverson and the hands at work under him, and, upon a full and
fair consideration of all that evidence, you will determine whose
negligent act occasioned this accident."
Counsel for the defendant below asked the court to charge the
jury on the question of defective brakes, but after some
conversation between counsel and the court, the court stated:
"You do not want a charge further than the issues in the case.
There is nothing about the brake in the case. It all reduces itself
to this: if you find under my charge that Holverson was not a
fellow servant of the plaintiff, then the question is through whose
negligent act did this injury occur? Was it the act of Holverson,
the foreman, who was on the front car, or was it the negligent act
of plaintiff's fellow servants on the hind car? If it was the act
of Holverson, then the plaintiff is entitled to the agreed amount.
If it was the
Page 162 U. S. 351
act of the men on the hind car, then plaintiff cannot recover
and your verdict must be for the defendant."
Exceptions were duly taken to the refusal to charge as requested
by counsel for the defendant below, and to the charge as above
given.
The jury returned a verdict in favor of plaintiff. Upon writ of
error, the United States Circuit Court of Appeals for the Eighth
Circuit affirmed the judgment, 51 F. 182, and the defendant below
sued out this writ of error.
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
The sole question for our determination is whether Holverson
occupied the position of fellow servant with the plaintiff below.
If he did, then this judgment is wrong and must be reversed.
By the verdict of the jury, under the charge of the court, we
must take the fact to be that Holverson was foreman of the extra
gang for the defendant company, and that he had charge of and
superintended the gang in the putting in of the ties and assisting
in keeping in repair the portion of the road included within the
three sections; that he had power to hire and discharge the hands
in his gang, then amounting to 13 in number, and had exclusive
charge of the direction and management of the gang in all matters
connected with their employment; that the plaintiff below was one
of the gang of hands so hired by Holverson, and was subject to the
authority of Holverson in all matters relating to his duties as
laborer. Upon these facts, the courts below have held that the
plaintiff and Holverson were not fellow servants, in such a sense
as to preclude plaintiff recovering from the railroad company
damages for the injuries he sustained through the negligence of
Page 162 U. S. 352
Holverson, acting in the course of his employment as such
foreman.
In the course of the review of the judgment by the United States
circuit court of appeals, that court held that the distinction
applicable to the determination of the question of a co-employee
was not
"whether the person has charge of an important department of the
master's service, but whether his duties are exclusively those of
supervision, direction, and control over a work undertaken by the
master, and over subordinate employees engaged in such work whose
duty it is to obey, and whether he has been vested by the common
master with such power of supervision and management."
Continuing, the court said that
"the other view that has been taken is that whether a person is
a vice-principal is to be determined solely by the magnitude or
importance of the work that may have been committed to his charge,
and that view is open to the objection that it furnishes no
practical or certain test by which to determine in a given case
whether an employee has been vested with such departmental control,
or has been 'so lifted up in the grade and extent of his duties' as
to constitute him the personal representative of the master. That
this would frequently be a difficult and embarrassing question to
decide, and that courts would differ widely in their views if the
doctrine of departmental control was adopted, is well illustrated
by the case of
Borgman v. Omaha & ST. Louis Railway,
41 F. 667, 669. We are of the opinion, therefore, that the nature
and character of the respective duties devolved upon and performed
by persons in the same common employment should in each instance
determine whether they are or are not fellow servants, and that
such relation should not be deemed to exist between two employees
where the function of one is to exercise supervision and control
over some work undertaken by the master which requires supervision,
and over subordinate servants engaged in that work, and where the
other is not vested by the master with any such power of direction
or management."
51 F. 182. The court thereupon affirmed the judgment.
It seems quite plain that Holverson was not the "chief" or
Page 162 U. S. 353
"superintendent" of a separate and distinct department or branch
of the business of the company as such term is used in those cases
where a liability is placed upon the company for the negligence of
such an officer. We also think that the ground of liability laid
down by the courts below is untenable.
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 common master is not
liable for the negligence of one of his servants which has resulted
in an injury to a fellow servant. There are however, some duties
which a master owes as such to a servant entering his employment.
He owes the duty to provide such 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
the accomplishment of the work necessary to be done. He must
exercise proper diligence in the employment of reasonably safe and
competent men to perform their respective duties, and it has been
held in many states that the master owes the further duty of
adopting and promulgating safe and proper rules for the conduct of
his business, including the government of the machinery and the
running of trains on a railroad track. If the master be neglectful
in any of these matters, it is a neglect of a duty which he
personally owes to his employee, and if the employee suffer damage
on account thereof, the master is liable. If, instead of personally
performing these obligations, the master engages another to do them
for him, he is liable for the neglect of that other, which in such
case is not the neglect of a fellow servant, no matter what his
position as to other matters, but is the neglect of the master to
do those things which it is the duty of the master to perform as
such.
In addition to the liability of the master for his neglect to
perform these duties, there has been laid upon him by some course a
further liability for the negligence of one of his servants in
charge of a separate department or branch of business, whereby
another of his employees has been injured, even though the neglect
was not of that character which the master owed, in
Page 162 U. S. 354
his capacity as master, to the servant who was injured. In such
case, it has been held that the neglect of the superior officer or
agent of the master was the neglect of the master, and was not that
of the co-employee, and hence that the servant, who was a
subordinate in the department of the officer, could recover against
the common master for the injuries sustained by him under such
circumstances. It has been already said that Holverson sustained no
such relation to the company in this case as would uphold a
liability for his acts based upon the ground that he was a
superintendent of a separate and distinct branch or department of
the master's business. It is proper, therefore, to inquire what is
meant to be included by the use of such a phrase.
A leading case on this subject in this Court is that of
Chicago, Milwaukee & St. Paul Railway v. Ross,
112 U. S. 377. In
that case, a railroad corporation was held responsible to a
locomotive engineer in the employment of the company for damages
received in a collision which was caused by the negligence of the
conductor of the train drawn by the engine upon which plaintiff was
engineer. This Court held the action was maintainable on the ground
that the conductor, upon the occasion in question, was an agent of
the corporation, clothed with the control and management of a
distinct department, in which his duty was entirely that of
direction and superintendence; that he had the entire control and
management of the train, and that he occupied a very different
position from the brakemen, porters, and other subordinates
employed on it; that he was in fact and should be treated as, a
personal representative of the corporation, for whose negligence
the corporation was responsible to subordinate servants. The
engineer was permitted to recover on that theory. These facts give
some indication of the meaning of the phrase.
In the above case, the instruction given by the court at the
trial, to which exception was taken, was in these words:
"It is very clear, I think, that if the company sees fit to
place one of its employees under the control and direction of
another, that then the two are not fellow servants engaged in the
same common employment within the meaning of the rule of law of
which I am speaking."
That instruction, thus broadly
Page 162 U. S. 355
given, was not, however, approved by this Court in the
Ross case. Such ground of liability -- mere superiority in
position, and the power to give orders to subordinates -- was
denied. What was approved in that case, and the foundation upon
which the approval was given, is very clearly stated by MR. JUSTICE
BREWER in the course of the opinion delivered in the case of
Baltimore & Ohio Railroad v. Baugh, 149 U.
S. 368, at
149 U. S. 380,
and the following pages. In the
Baugh case, it is also
made plain that the master's responsibility for the negligence of a
servant is not founded upon the fact that the servant guilty of the
neglect had control over, and a superior position to that occupied
by, the servant who was injured by his negligence. The rule is that
in order to form an exception to the general law of nonliability,
the person whose neglect caused the injury must be
"one who was clothed with the control and management of a
distinct department,
and not a mere separate piece of work in
one of the branches of service in a department."
This distinction is a plain one, and not subject to any great
embarrassment in determining the fact in any particular case.
When the business of the master or employer is of such great and
diversified extent that it naturally and necessarily separates
itself into departments of service, the individuals placed by the
master in charge of these separate branches and departments of
service, and given entire and absolute control therein, may
properly be considered, with respect to employees under them,
vice-principals and representatives of the master, as fully and as
completely as if the entire business of the master were placed by
him under one superintendent. Thus, MR. JUSTICE BREWER, in the
Baugh case, illustrates the meaning of the phrase
"different branches or departments of service" by suggesting
that
"between the law department of a railway corporation and the
operating department, there is a natural and distinct separation --
one which makes the two departments like two independent kinds of
business, in which the one employer and master is engaged. So
oftentimes there is in the affairs of such corporation what may be
called a manufacturing or repair department, and another strictly
operating department.
Page 162 U. S. 356
These two departments are, in their relations to each other, as
distinct and separate as though the work of each was carried on by
a separate corporation. And from this natural separation flows the
rule that he who is placed in charge of such separate branch of the
service -- who alone superintends and has the control of it -- is,
as to it, in the place of the master."
The subject is further elaborated in the case of
Howard v.
Denver & Rio Grande Railroad, 26 F. 837, in an opinion by
MR. JUSTICE BREWER, then circuit judge of the Eighth Circuit. The
other view is stated very distinctly in the cases of
Borgman v.
Omaha & St. Louis Railroad Co., 41 F. 667, and
Woods
v. Lindvall, 48 F. 62. This last case is much stronger for the
plaintiff than the one at bar. The foreman in this case bore no
resemblance, in the importance and scope of his authority, to that
possessed by Murdock in the
Woods case,
supra.
These cases which have been cited serve to illustrate what was in
the minds of the courts when the various distinctions as to
departments and separate branches of service were suggested. In the
Baugh case, the engineer and fireman of a locomotive
engine running alone on the railroad, and without any train
attached, were held to be fellow servants of the company so as to
preclude the fireman from recovering from the company for injuries
caused by the negligence of the engineer.
The meaning of the expression "departmental control" was again,
and very lately, discussed in
Northern Pacific Railroad v.
Hambly, 154 U. S. 349,
where it was held, as stated in the headnote, that a common day
laborer in the employ of a railroad company who, while working for
the company under the orders and direction of a section boss or
foreman on a culvert on the line of the company's road, receives an
injury through the neglect of a conductor and an engineer in moving
a particular passenger train upon the company's road is a fellow
servant of such engineer and of such conductor in such a sense as
exempts the railroad company from liability for the injury so
inflicted.
The subject is again treated in
Central Railroad v.
Keegan, 160 U. S. 259,
decided at this term, where the men engaged
Page 162 U. S. 357
in the service of the railroad company were employed in
uncoupling from the rear of trains cars which were to be sent
elsewhere, and in attaching other cars in their place, and they
were held to be fellow servants although the force, consisting of
five men, was under the orders of a boss who directed the men which
cars to uncouple and what cars to couple, and the neglect was
alleged to have been the neglect of the boss, by which the injury
resulted to one of the men. This Court held that they were fellow
servants, and the mere fact that one was under the orders of the
other constituted no distinction, and that the general rule of
nonliability applied.
These last cases exclude, by their facts and reasoning, the case
of a section foreman from the position of a superintendent of a
separate and distinct department. They also prove that mere
superiority of position is no ground for liability.
This boss of a small gang of ten or fifteen men engaged in
making repairs upon the road wherever they might be necessary over
a distance of three sections, aiding and assisting the regular gang
of workmen upon each section as occasion demanded, was not such a
superintendent of a separate department, nor was he is control of
such a distinct branch of the work of the master, as would be
necessary to render the master liable to a co-employee for his
neglect. He was in fact, as well as in law, a fellow workman. He
went with the gang to the place of work in the morning, stayed
there with them during the day, superintended their work, giving
directions in regard to it, and returned home with them in the
evening, acting as a part of the crew of the handcar upon which
they rode. The mere fact, if it be a fact, that he did not actually
handle a shovel or a pick, is an unimportant 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.
If, in approaching the line of separation between a fellow
workman and a superintendent of a particular and separate
department, there may be embarrassment in determining the question,
this case presents no such difficulty. It is clearly
Page 162 U. S. 358
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 therfor, 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
handcars 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.
MR. CHIEF JUSTICE FULLER, MR. JUSTICE FIELD, and MR. JUSTICE
HARLAN dissent.
