A force of five men, in the night service of a railroad company,
was employed in uncoupling from the rear of trains cars which were
to be sent elsewhere and in attaching other cars in their places.
The force was under the orders of O., who directed G. what cars to
uncouple, and K. what cars
Page 160 U. S. 260
to couple. As the train backed down, G. uncoupled a car as
directed. K., in walking to the car which was to be attached to the
train in its place, caught his foot in a switch and fell across the
track. As the train was moving towards him, he called out. The
engine was stopped, but the rear car, having been uncoupled by G.,
continued moving on, and passed over him, inflicting severe
injuries. K. sued the railroad company to recover damages for the
injuries thus received.
Held that K. and O. were fellow
servants, and that the railroad company was not responsible for any
negligence of O. in not placing himself at the brake of the
uncoupled car.
The action below was brought by Keegan to recover damages for
personal injuries sustained while acting as brakeman in the employ
of the railroad company. Judgment having been rendered upon the
verdict of a jury in favor of Keegan, the company sued out a writ
of error from the Circuit Court of Appeals for the Second Circuit.
Two circuit judges, sitting as the court, differed in opinion upon
questions of law arising, and thereupon certified two questions to
this Court. The certificate sets forth the following statement of
facts:
"Five men -- O'Brien, Keegan, Lally, Gooley, and Ward -- were on
the night of the accident (October 7, 1889) in the service of the
Central Railroad of New Jersey and employed in its yard at Jersey
City. They comprised what was called the 'night float drill crew,'
the duty of such crews being to take cars from the tracks on which
they had been left by incoming trains and place them on the floats
by which they were transported across the North River to the City
of New York. The drill crews, like others employed in the same
yard, received their general instructions from Dent, the
yardmaster. The men composing such crews were hired by Dent and
discharged by him, and he had the general charge of the yard and
yardmen, and assigned them to their duties."
"The course of business was as follows: Dent, the yardmaster,
gave to O'Brien drill slips -- that is, slips of paper containing
the numbers of the cars and the particular tracks leading to the
floats on which these cars were to be placed. These float tracks
were five in number, and were connected by switches with the other
tracks in the yard. The execution of this order required frequent
switching of cars from one
Page 160 U. S. 261
set of tracks to another in order to sort out from arriving
trains the particular car or cars to be placed on a particular
float track. It also required the making up of trains of cars
sometimes longer, sometimes shorter; their movement by the engine
attached to them, forward or backward, and at varying rates of
speed; the braking, coupling, and uncoupling of the cars composing
them. Ward was engineer. Lally had his post on some car near the
engine in order to transmit the engineer any signals received. He
also helped the engineer with coal and water and acted as brakeman.
Keegan did the coupling, Gooley, the uncoupling and acted as
brakeman, while the turning of the switches was attended to by
O'Brien. The direction of all these operations was with O'Brien,
who is called in the evidence sometimes 'foreman driller,'
sometimes 'conductor of the drill crew.' He was the one to direct
what cars should be taken on by the engine and when and where they
should be moved to, when the movement should start, and where it
should stop, and it was in obedience to his orders that one or
other of the men employed in his crew went to one place or another
and coupled or uncoupled particular cars. The general management of
the operation was with him, and he had control over the persons
employed therein."
"On the night of the accident, Keegan, who had been relighting
his lantern at the engine, which was then standing still, attached
to several cars, walked to the rear end of the train. O'Brien and
Gooley were standing there, looking over the drill slip. There were
some other cars standing on the same track about forty feet beyond
the end of the cars to which the engine was attached. O'Brien told
Gooley what cars were to be uncoupled. He then told Keegan to
couple the train onto the cars beyond. Keegan took the coupling
link of the rear car in his right hand and, having signaled for the
train to back slowly, walked towards the detached cars, with the
rear end of the last car at his back. Before he reached them, he
caught his right foot in the guardrail of a switch, and at once
called out to hold up the train. His call was heard, and the engine
stopped immediately. Gooley, however,
Page 160 U. S. 262
had already, on O'Brien's order, drawn the pin, and thus
uncoupled the cars indicated, so that when the engine pulled up, it
did not stop their backward movement. Neither Gooley nor O'Brien
were on the cars thus moving backwards, so there was no one to
check their motion by applying the brakes, and as a consequence the
rear wheel passed over Keegan's leg, producing the injuries
complained of."
"There was evidence tending to show that under circumstances
such as these, O'Brien, or someone else should have been on the
rear car of those moving backward, and the negligence complained of
was his ordering defendant in error to couple cars which he had
just ordered to be uncoupled from a backwardly moving train to
stationary cars beyond them without himself being on the moving
cars or seeing that either Gooley or Lally were there to exercise
control over their movement."
"The jury, by their verdict, found that O'Brien was
negligent."
The questions of law arising from these facts, upon which the
court desired instruction for the proper decision of the writ of
error, were certified as follows: (1) whether the defendant in
error and O'Brien were or were not fellow servants, and (2)
whether, from negligence of O'Brien in failing to place himself or
some one else at the brake of the backwardly moving cars, the
plaintiff in error is responsible.
Page 160 U. S. 263
MR. JUSTICE WHITE, after stating the facts in the foregoing
language, delivered the opinion of the Court.
We held in
Baltimore & Ohio Company
v. Baugh,
Page 160 U. S. 264
149 U. S. 368,
that an engineer and fireman of a locomotive engine running alone
on a railroad, without any train attached, when engaged on such
duty, were fellow servants of the railroad company -- hence, that
the fireman was precluded from recovering damages from the company
for injuries caused during the running by the negligence of the
engineer. In that case, it was declared that:
"
Prima facie, all who enter the employment of a single
master are engaged in a common service, and are fellow servants. .
. . All enter in the service of the same master to further his
interests in the one enterprise."
And while we in that case recognized that the heads of separate
and distinct departments of a diversified business may, under
certain circumstances, be considered, with respect to employees
under them, vice-principals or representatives of the master as
fully and as completely as if the entire business of the master was
by him placed under the charge of one superintendent, we declined
to affirm that each separate piece of work was a distinct
department, and made the one having control of that piece of work a
vice-principal or representative of the master. It was further
declared that
"the danger from the negligence of one specially in charge of
the particular work was as obvious and as great as from that of
those who were simply coworkers with him in it. Each is equally
with the other an ordinary risk of the employment,"
which the employee assumes when entering upon the employment,
whether the risk be obvious or not. It was laid down that the
rightful test to determine whether the negligence complained of was
an ordinary risk of the employment was whether the negligent act
constituted a breach of positive duty owing by the master, such as
that of taking fair and reasonable precautions to surround his
employees with fit and careful coworkers and the furnishing to such
employees of a reasonably safe place to work and reasonably safe
tools or machinery with which to do the work, thus making the
question of liability of an employer for an injury to his employee
turn rather on the character of the alleged negligent act than on
the relations of the employees to each other, so that, if the act
is one done in the discharge of some positive duty of
Page 160 U. S. 265
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 liable therefor.
There is nothing in the later decision of this Court in
Northern Pacific Railroad Company v. Hambly, 154 U.
S. 349, militating against the views expressed in the
Baugh case. On the contrary, that case is approvingly
referred to (p.
154 U. S.
359), although said there to involve a different
question from that which was in the
Hambly case.
The principles thus applied in the case referred to are in
perfect harmony with the rules enforced by the Supreme Court of the
State of New Jersey, within whose territory the accident happened
which gave rise to the preset controversy.
In
O'Brien v. American Dredging Co., 53 N.J.L., 291,
O'Brien sought to hold the company liable for an injury sustained
by him while employed as a deck hand on one of their dredges at the
time used in dredging the James River, near Richmond, under a
contract with the United States government. The ground of liability
alleged was that the injury had been caused by the negligence of
another employee, one Cannon, who was called the "captain" of the
dredge. Cannon was authorized to employ men to work on the dredge,
subject to the approval of the general superintendent (who had his
headquarters at the home office of the company), who had power to
disapprove or discharge them; the duty of the captain was to
operate the dredge in said dredging; plaintiff was employed by
Cannon as a deckhand on the dredge, and his duty was to aid in the
operation of the dredge, and Cannon had charge of the men so
employed, and they were under him. The court held that while Cannon
was entrusted with some authority to employ the workmen, yet, with
respect to the operation of the dredge in the prosecution of
defendant's business, he was not a general superintendent, but a
mere foreman of the gang of workmen, engaged with them in the
execution of the master's work. He was a superior and they
Page 160 U. S. 266
were inferior workmen, but all were employed in a common
operation, though in different grades of service. In the course of
the opinion, on the question of the risks which must be
contemplated are assumed by one entering the service of another,
the court said:
"Whether the master retain the superintendence and management of
his business or withdraws himself from it and devolve it on a
vice-principal or representative, it is quite apparent that
although the master or his representative may devise the plans,
engage the workmen, provide the machinery and tools, and direct the
performance of the work, neither can as a general rule be
continually present at the execution of all such work. It is the
necessary consequence that the mere execution of the planned work
must be entrusted to workmen, and, where necessary, to groups or
gangs of workmen, and in such case that one should be selected as
the leader, boss, or foreman to see to the execution of such work.
This sort of superiority of service is so essential and so
universal that every workman, in entering upon a contract of
service, must contemplate its being made use of in a proper case.
He therefore makes his contract of service in contemplation of the
risk of injury from the negligence of a boss or foreman, as well as
from the negligence of another fellow workman. The foreman or
superior servant stands to him, in that respect, in the precise
position of his other fellow servants."
Applying the principles announced by this Court and the Supreme
Court of New Jersey to the facts of the case at bar, it is clear
that O'Brien and Keegan were fellow servants. O'Brien's duties were
not even those of simple direction and superintendence over the
operations of the drill crew. He was a component part of the crew,
an active coworker in the manual work of switching, with the
specific duty assigned to him by the yardmaster of turning the
switches. He was subordinate to the yardmaster, who had
jurisdiction over this and other drill crews, and it was the
yardmaster who employed and discharged all the workers in the yard,
giving them their general instructions and assigning them to their
duties. O'Brien's control over the other members of the drill
crew
Page 160 U. S. 267
was similar to the control which a section foreman exercises
over the men in his section, and following its construction of the
decisions of this Court in the
Baugh and
Hambly
cases, the Circuit Court of Appeals for the Eighth Circuit has held
that a section foreman is a fellow servant of a member of his crew,
and that one of the crew injured by the negligence of the foreman
could not recover.
Kansas & Arkansas Valley Railway v.
Waters, 70 F. 28.
In
Potter v. N.Y. Central & Hudson River Railroad,
136 N.Y. 77, employees of a railroad company, while switching cars
in the company's yard under the direction of a yardmaster, shunted
a number of cars onto a track so that they collided with a car
being inspected and caused the death of the inspector. It was
claimed that proper and reasonable care required that there should
have been a brakeman on the front of the cars to control in an
emergency their motion when detached from the engine. In the
absence of allegation of proof to the contrary, the court presumed
that competent and sufficient servants were employed and proper
regulations for the management of the business had been
established, and observed (p. 82):
"It is quite obvious that the work of shifting cars in a
railroad yard must be left in a great measure to the judgment and
discretion of the servants of the railroad who are entrusted with
the management of the yard. The details must be left to them, and
all that the company can do for the protection of its employees is
to provide competent co-servants and prescribe such regulations as
experience shows may be best calculated to secure their
safety."
We adopt this statement as proper to be applied to the case at
bar. A personal positive duty would clearly not have been imposed
upon a natural person, owner of a railroad, to supervise and
control the details of the operation of switching cars in a
railroad yard; neither is such duty imposed as a positive duty upon
a corporation, and if O'Brien was negligent in failing to place
himself or some one else at the brake of the backwardly moving
cars, such omission not being the performance of a positive duty
owing by the master, the plaintiff in error is not responsible
therefor.
Page 160 U. S. 268
These conclusions determine both questions certified for our
decision, and accordingly the first question is answered in the
affirmative, and the second in the negative.
So answered.
MR. CHIEF JUSTICE FULLER, MR. JUSTICE FIELD, and MR. JUSTICE
HARLAN dissented.
