Whether the engineer and fireman of a locomotive engine, running
alone on a railroad and without any train attached are fellow
servants of the company, so as to preclude the latter from
recovering from the company for injuries caused by the negligence
of the former is not a question of local law, to be settled by the
decisions of the highest court of the state
Page 149 U. S. 369
in which a cause of action arises, but is one of general law, to
be determined by a reference to all the authorities, and a
consideration of the principles underlying the relations of master
and servant.
Such engineer and such fireman, when engaged on such duty are,
when so considered, fellow servants of the railroad company, and
the fireman is precluded by principles of general law from
recovering damages from the company for injuries caused, during the
running, by the negligence of the engineer.
Chicago, Milwaukee & St. Paul Railway v. Ross,
112 U. S. 377,
explained and distinguished.
John Baugh, defendant in error, was employed as a fireman on a
locomotive of the plaintiff in error, and while so employed was
injured, as is claimed, through the negligence of the engineer in
charge thereof. He commenced a suit to recover for these injuries
in the Circuit Court of the United States for the Southern District
of Ohio.
The circumstances of the injury are these: the locomotive was
manned by one Hite, as engineer, and Baugh, as fireman, and was
what is called in the testimony a "helper." On May 4, 1885, it left
Bellaire, Ohio, attached to a freight train which it helped to the
top of the grade about twenty miles west of that point. At the top
of the grade, the helper was detached, and then returned alone to
Bellaire. There were two ways in which it could return in
conformity to the rules of the company: one on the special orders
of the train dispatcher at Newark, and the other by following some
regular scheduled train, carrying signals to notify trains coming
in the opposite direction that the helper was following it. This
method was called in the testimony "flagging back." On the day in
question, without special orders and not following any scheduled
train, the helper started back for Bellaire, and on the way
collided with a regular local train, and in the collision Baugh was
injured. Baugh had been in the employ of the railroad company about
a year, had been fireman about six months, and had run on the
helper, two trips a day, about two months. He knew that the helper
had to keep out of the way of the trains, and was familiar with the
method of flagging back.
No testimony was offered by the defendant, and at the close of
plaintiff's testimony, the defendant asked the court to direct a
nonsuit, which motion was overruled, to which ruling an exception
was duly taken. In its charge to the jury, the court gave this
instruction:
"If the injury results from negligence or carelessness on the
part of one so placed in authority over the employee of the company
who is injured as to direct and control that employee, then the
company is liable."
To which instruction an exception was duly taken. The jury
returned a verdict for the plaintiff for $6,750, and upon this
verdict judgment was entered, to reverse which the railroad company
sued out a writ of error from this Court.
Page 149 U. S. 370
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The single question presented for our determination is whether
the engineer and fireman of this locomotive, running alone and
without any train attached, were fellow servants of the company so
as to preclude the latter from recovering from the company for
injuries caused by the negligence of the former.
This is not a question of local law, to be settled by an
examination merely of the decisions of the Supreme Court of Ohio,
the state in which the cause of action arose and in which the suit
was brought, but rather one of general law, to be determined by a
reference to all the authorities and a consideration of the
principles underlying the relations of master and servant.
The question as to what is a matter of local and what of
general, law, and the extent to which in the latter this Court
should follow the decisions of the state courts, has been often
presented. The unvarying rule is that in matters of the latter
class, this Court, while leaning towards an agreement with the
Page 149 U. S. 371
views of the state courts, always exercises an independent
judgment, and as unvarying has been the course of decision that the
question of the responsibility of a railroad corporation for
injuries caused to or by its servants is one of general law. In the
case of
Swift v. Tyson,
16 Pet. 1, the first proposition was considered at length. On p.
41 U. S. 18, it is
thus stated:
"But, admitting the doctrine to be fully settled in New York, it
remains to be considered whether it is obligatory upon this Court
if it differs from the principles established in the general
commercial law. It is observable that the courts of New York do not
found their decisions upon this point upon any local statute or
positive, fixed, or ancient local usage, but they deduce the
doctrine from the general principles of commercial law. It is,
however, contended that the thirty-fourth section of the Judiciary
Act of 1789, c. 20, furnishes a rule obligatory upon this Court to
follow the decisions of the state tribunals in all cases to which
they apply. That section provides"
"that the laws of the several states, except where the
Constitution, treaties, or statutes of the United States shall
otherwise require or provide, shall be regarded as rules of
decision in trials at common law in the courts of the United States
in cases where they apply."
In order to maintain the argument, it is essential therefore to
hold that the word "laws" in this section includes within the scope
of its meaning the decisions of the local tribunals. In the
ordinary use of language, it will hardly be contended that the
decisions of courts constitute laws. They are, at most, only
evidence of what the laws are, and are not of themselves laws. They
are often reexamined, reversed, and qualified by the courts
themselves whenever they are found to be either defective or ill
founded or otherwise incorrect. The laws of a state are more
usually understood to mean the rules and enactments promulgated by
the legislative authority thereof, or long established local
customs having the force of laws. In all the various cases which
have hitherto come before us for decision, this Court have
uniformly supposed that the true interpretation of the
thirty-fourth section limited its application to state laws
strictly local -- that is to say, to the positive statutes of
the
Page 149 U. S. 372
state and the construction thereof adopted by the local
tribunals, and to rights and titles to things having a permanent
locality, such as the rights and titles to real estate and other
matters immovable and intra-territorial in their nature and
character.
Notwithstanding the interpretation placed by this decision upon
the thirty-fourth section of the Judiciary Act of 1789, Congress
has never amended that section, so it must be taken as clear that
the construction thus placed is the true construction, and
acceptable to the legislative as well as to the judicial branch of
the government. This decision was in 1842. Forty years thereafter,
in
Burgess v. Seligman, 107 U. S. 20, the
matter was again fully considered, and it was said by Mr. Justice
Bradley, on p.
107 U. S. 33 and
34, that
"the federal courts have an independent jurisdiction in the
administration of state laws, coordinate with and not subordinate
to that of the state courts, and are bound to exercise their own
judgment as to the meaning and effect of those laws. The existence
of two coordinate jurisdictions in the same territory is peculiar,
and the results would be anomalous and inconvenient but for the
exercise of mutual respect and deference. Since the ordinary
administration of the law is carried on by the state courts, it
necessarily happens that by the course of their decisions, certain
rules are established which become rules of property and action in
the state, and have all the effect of law, and which it would be
wrong to disturb. This is especially true with regard to the law of
real estate and the construction of state constitutions and
statutes. Such established rules are always regarded by the federal
courts, no less than by the state courts themselves, as
authoritative declarations of what the law is. But where the law
has not been thus settled, it is the right and duty of the federal
courts to exercise their own judgment, as they always do in
reference to the doctrines of commercial law and general
jurisprudence. . . . As, however, the very object of giving to the
national courts jurisdiction to administer the laws of the states
in controversies between citizens of different states was to
institute independent tribunals, which, it might be supposed, would
be unaffected by local
Page 149 U. S. 373
prejudices and sectional views, it would be a dereliction of
their duty not to exercise an independent judgment in cases not
foreclosed by previous adjudication. As this matter has received
our special consideration, we have endeavored thus briefly to state
our views with distinctness, in order to obviate any
misapprehensions that may arise from language and expressions used
in previous decisions. The principal cases bearing upon the subject
are referred to in the note, but it is not deemed necessary to
discuss them in detail."
And in the note referred to, over fifty cases are cited in which
the proposition had been in terms stated or in fact recognized.
Since the case of
Burgess v. Seligman the same proposition
has been again and again affirmed.
Whatever differences of opinion may have been expressed have not
been on the question whether a matter of general law should be
settled by the independent judgment of this Court, rather than
through an adherence to the decisions of the state courts, but upon
the other question -- whether a given matter is one of local or of
general law. Thus, in the case of
Bucher v. Cheshire Railroad
Co., 125 U. S. 555,
these facts appeared: a statute of Massachusetts forbade travel on
the Lord's day, except for necessity or charity, under penalty of a
fine not exceeding ten dollars. The plaintiff, while riding in the
cars of the defendant in violation of that statute, was injured
through its negligence. The defendant pleaded his violation of this
statute as a bar to any recovery, citing repeated decisions of the
highest court of that state sustaining such a defense. This Court
followed those decisions. It is true, as said in the opinion, that
there was no dispute about the meaning of the language used by the
legislature, so this Court was not following the construction
placed upon the statute by the Massachusetts court, but only those
decisions as to its effect. And yet from that opinion two of the
justices dissented, holding that notwithstanding it was a dispute
as to the effect of a state statute, it was still a question of
general law.
Again, in the case of
Detroit v. Osborne, 135 U.
S. 492, the plaintiff was injured while walking in one
of the streets of
Page 149 U. S. 374
Detroit, through a defect in the sidewalk. The Supreme Court of
Michigan had held that the duty resting upon the city, of keeping
its streets in repair, was a duty to the public, and not to private
individuals, the mere neglect of which was a nonfeasance only, for
which no private action for damages arose. This Court followed that
ruling, although conceding that it was not in harmony with the
general opinion, nor in accordance with the views of this Court,
and this was done on the ground that the question was one of a
purely local nature. This quotation was made from the opinion in
Claiborne County v. Brooks, 111 U.
S. 400,
111 U. S. 410,
as fully expressing the reasons for so following the rulings of the
Michigan court:
"It is undoubtedly a question of local policy with each state
what shall be the extent and character of the powers which its
various political and municipal organizations shall possess, and
the settled decisions of its highest courts on this subject will be
regarded as authoritative by the courts of the United States, for
it is a question that relates to the internal Constitution of the
body politic of the state."
Observations of a similar nature are pertinent to other cases,
in which this Court has felt itself constrained to yield its own
judgment to the decisions of the state courts.
Again, according to the decisions of this Court, it is not open
to doubt that the responsibility of a railroad company to its
employees is a matter of general law. In
Railroad
Company v. Lockwood, 17 Wall. 357,
84 U. S. 368,
the question was as to the extent to which a common carrier could
stipulate for exemption from responsibility for the negligence of
himself or his servants, and notwithstanding there were decisions
of the courts of New York thereon, the state in which the cause of
action arose, this Court held that it was not bound by them, and
that in a case involving a matter of such importance to the whole
country it was its duty to proceed in the exercise of an
independent judgment. In
Hough v. Railway Company,
100 U. S. 213,
100 U. S. 226, was
presented the liability of a company to its servant for injuries
caused by negligence, and MR. JUSTICE HARLAN thus expressed the
views of the entire Court:
"Our attention has been called to two cases determined in
the
Page 149 U. S. 375
Supreme Court of Texas and which, it is urged, sustain the
principles announced in the court below. After a careful
consideration of those cases, we are of opinion that they do not
necessarily conflict with the conclusions we have reached. Be this
as it may, the questions before us, in the absence of statutory
regulations by the state in which the cause of action arose, depend
upon principles of general law, and in their determination we are
not required to follow the decisions of the state courts."
In
Myrick v. Michigan Cent. Railroad, 107 U.
S. 102,
107 U. S. 108,
the question was whether a bill of lading, issued by a railroad
company, whereby the company agreed to carry cattle beyond its own
line to the place named for final delivery, was a through contract.
The ticket or bill of lading was issued in Illinois, and the
rulings of the Supreme Court of that state as to the effect of such
a ticket or bill of lading were claimed to be conclusive, but this
Court declined to follow them, and in the exercise of its own
judgment placed a different construction upon the contract. And in
the recent case of
Railway Company v. Prentice,
147 U. S. 101,
147 U. S. 106,
where the question arose as to the right to recover from the
railway company punitive damages for the wanton and oppressive
conduct of one of its conductors towards a passenger, it was
said:
"This question, like others affecting the liability of a
railroad corporation as a common carrier of goods or passengers,
such as its right to contract for exemption from responsibility for
its own negligence, or its liability beyond its own line, or its
liability to one of its servants for the act of another person in
its employment is a question not of local law, but of general
jurisprudence, upon which this Court, in the absence of express
statute regulating the subject, will exercise its own judgment,
uncontrolled by the decisions of the courts of the several
states."
Not only that, but in the cases of
Wabash Railway v.
McDaniels, 107 U. S. 454, a
case arising in the State of Indiana;
Randall v. Baltimore
& Ohio Railroad, 109 U. S. 478,
arising in West Virginia, and
Chicago, Milwaukee &c.
Railway v. Ross, 112 U. S. 377,
coming from Minnesota, all three cases being actions by employees
to recover damages
Page 149 U. S. 376
against railroad companies for personal injuries, the question
of the liability of the company was discussed as one of general
law, and no reference made to the decisions of the state in which
the injuries took place. Indeed, in the last case, the instruction
given by the circuit judge, which was sustained by this Court, was
in direct opposition to the rulings of the Supreme Court of
Minnesota. Thus, in
Brown v. Winona & St. Peter Railroad
Company, 27 Minn. 162, a case called to the attention of this
Court, that court held that "a master is not liable to one servant
for injuries caused by the negligence of a co-servant in the same
common employment," and "that the negligent servant is superior in
authority, or an overseer of the one injured, does not take the
case out of this rule." And in the opinion, on p. 165, it is
said:
"It is upon this point that the authorities disagree. Some
courts, the Supreme Court of Ohio being the leading one, hold that
where the injured servant is subordinate to him whose negligence
causes the injury, they are not 'fellow servants,' and the master
is liable. On the other hand, the great majority of courts, both in
this country and in England, hold that mere difference in grade of
employment or in authority with respect to each other does not
remove them from the class of fellow servants as regards the
liability of the master for injuries to one caused by the
negligence of the other."
The same doctrine was announced in
Brown v. Minneapolis
& St. Louis Ry. Co., 31 Minn. 553, and
Franker v. St.
Paul, Minneapolis & St. Louis Railway, 32 Minn. 54, both
decided before the
Ross case, and reaffirmed since in
Gonsior v. Minneapolis & St. Louis Railway, 36 Minn.
385. Indeed, in all the various cases in this Court, affecting the
relations of railroad companies to their employees, it has either
been directly affirmed that the question presented was one of
general law, or else the discussion has proceeded upon the
assumption that such was the fact.
An examination of the opinions in the cases in the Ohio Supreme
Court, which are claimed to be authoritative here, discloses that
they proceed not upon any statute, or upon any custom or usage, or
indeed upon anything of a local nature, but simply announce the
views of that court upon the question
Page 149 U. S. 377
as one of general law. We agree with that court in holding it to
be a question of general law, although we differ from it as to what
the rule is by that law. Indeed, the Ohio court is not wholly
satisfied with that doctrine, as appears from the cases of
Whaalan v. Mad River &c. Railroad, 8 Ohio St. 249, and
Pittsburgh, Fort Wayne &c. Railway v. Devinney, 17
Ohio St. 197. In the last case, it disagrees with the conclusions
reached by this Court in the case of
Chicago, Milwaukee &c.
Railway v. Ross, supra, and holds that a conductor of a train
is not always to be regarded as a vice-principal or representative
of the company. In that case, a brakeman on one train was injured
through the negligence of the conductor of another, and they were
held to be fellow servants, and the latter not a vice-principal or
representative of the company for whose negligence it was
responsible. The opinion in that case is significant as showing
that the question was regarded as one of common or general law;
that the ordinary rule is in accordance with the views we have
reached in this case, and that the Ohio doctrine is confessedly an
exception. We quote from it as follows:
"The true general rule is, and so it must be, that when men are
employed for the prosecution of a lawful but hazardous business,
they assume the hazards of such employment arising from the
negligence of co-employees, and stipulate for compensation
according to their estimate of such hazards, subject, however, to
this exception -- that the master is liable for such injuries as
accrued to the servant from the negligence of a fellow servant in
the selection of whom the master has been culpably negligent, and
to this we in Ohio have added the further exception of a case where
the servant injured is subordinate to, and acting under the orders
of, the culpable fellow servant. For the reasoning on which the
decisions establishing this exception are based, the members of
this court as now constituted are not responsible, nor are we at
all bound to carry out their logic to its ultimate consequences. In
subsequent cases, strictly analogous in their facts, those
decisions will doubtless be accepted as authoritative, but the case
now before us does not require us to review them. In adding this
last-named exception to the rule elsewhere
Page 149 U. S. 378
generally established, we have already diverged from the general
current of judicial decision elsewhere. A majority of the court are
unwilling to increase the divergency, doubting as we do the wisdom
of such a step and being unwilling to assume the responsibility of
what would savor so strongly of judicial legislation."
But, passing beyond the matter of authorities, the question is
essentially one of general law. It does not depend upon any
statute; it does not spring from any local usage or custom; there
is in it no rule of property, but it rests upon those
considerations of right and justice which have been gathered into
the great body of the rules and principles known as the "common
law." There is no question as to the power of the states to
legislate and change the rules of the common law in this respect as
in others, but in the absence of such legislation, the question is
one determinable only by the general principles of that law.
Further than that it is a question in which the nation as a whole
is interested. It enters into the commerce of the country. Commerce
between the states is a matter of national regulation, and to
establish it as such was one of the principal causes which led to
the adoption of our Constitution. Today, the volume of interstate
commerce far exceeds the anticipation of those who framed this
Constitution, and the main channels through which this interstate
commerce passes are the railroads of the country. Congress has
legislated in respect to this commerce not merely by the Interstate
Commerce Act and its amendments, 24 Stat. 379, c. 104, but also by
an act passed at the last session, requiring the use of automatic
couplers on freight cars. Pub. Acts, 52d Cong., 2d Sess., c.113.
The lines of this very plaintiff in error extend into half a dozen
or more states, and its trains are largely employed in interstate
commerce. As it passes from state to state, must the rights,
obligations, and duties subsisting between it and its employees
change at every state line? If to a train running from Baltimore to
Chicago, it should, within the limits of the State of Ohio, attach
a car for a distance only within that state, ought the law
controlling the relation of a brakeman on that car to the
Page 149 U. S. 379
company to be different from that subsisting between the
brakemen on the through cars and the company? Whatever may be
accomplished by statute -- and of that we have now nothing to say
-- it is obvious that the relations between the company and
employee are not in any sense of the term local in character, but
are of a general nature, and to be determined by the general rules
of the common law. But the question is not local, but general. It
is also one of the vexed questions of the law, and perhaps there is
no one matter upon which there are more conflicting and
irreconcilable decisions in the various courts of the land than the
one as to what is the test of a common service, such as to relieve
the master from liability for the injury of one servant through the
negligence of another. While a review of all these cases is
impossible, it may be not amiss to notice some, and to point out
what are significant factors in such a question.
Counsel for defendant in error rely principally upon the case of
Railroad Co. v. Ross, 112 U. S. 377,
taken in connection with this portion of rule No. 10 of the
company: "Whenever a train or engine is run without a conductor,
the engineman thereof will also be regarded as conductor, and will
act accordingly." The
Ross case, at it is commonly known,
decided that
"a conductor of a railroad train, who has a right to command the
movements of a train and control the persons employed upon it,
represents the company while performing those duties, and does not
bear the relation of fellow servant to the engineer and other
employees on the train."
The argument is a short one: the conductor of a train represents
the company, and is not a fellow servant with his subordinates on
the train. The rule of the company provides that when there is no
conductor, the engineer shall be regarded as a conductor.
Therefore, in such case he represents the company, and is likewise
not a fellow servant with his subordinates. But this gives a
potency to the rule of the company which it does not possess. The
inquiry must always be directed to the real powers and duties of
the official, and not simply to the name given to the office. The
regulations of a company cannot make the conductor a fellow servant
with his subordinates,
Page 149 U. S. 380
and thus overrule the law announced in the
Ross case.
Neither can it, by calling someone else a conductor, bring a case
within the scope of the rule there laid down. In other words, the
law is not shifted backwards and forwards by the mere regulations
of the company, but applies generally, irrespective of all such
regulations. There is a principle underlying the decision in that
case, and the question always is as to the applicability of that
principle to the given state of facts.
What was the
Ross case, and what was decided therein?
The instruction given on the trial in the circuit court, which was
made the principal ground of challenge, 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."
The language of that instruction, it will be perceived, is very
like that of the one here complained of, and if this Court had
approved that instruction as a general rule of law, it might well
be said that that was sufficient authority for sustaining this, and
affirming the judgment. But though the question was fairly before
the Court, it did not attempt to approve the instruction generally,
but simply held that it was not erroneous an applied to the facts
of that case. This is evident from this language, found in the
latter part of the opinion, and which is used in summing up the
conclusions of the Court:
"We agree with them in holding -- and the present case requires
no further decision -- that the conductor of a railway train, who
commands its movements, directs when it shall start at what
stations it shall stop at what speed it shall run, and has the
general management of it and control over the persons employed upon
it, represents the company, and therefore that, for injuries
resulting from his negligent acts, the company is responsible. If
such a conductor does not represent the company, then the train is
operated without any representative of its owner. If, now, we apply
these views of the relation of the conductor of a railway train to
the company and to the
Page 149 U. S. 381
subordinates under him on the train, the objections urged to the
charge of the court will be readily disposed of. Its language in
some sentences may be open to verbal criticism, but its purport
touching the liability of the company is that the conductor and
engineer, though both employees, were not fellow servants in the
sense in which that term is used in the decisions."
It is also clear from an examination of the reasoning running
through the opinion, for there is nowhere an argument to show that
the mere fact that one servant is given control over another
destroys the relation of fellow servants. After stating the general
rule, that a servant entering into service assumes the ordinary
risks of such employment, and among them the risk of injuries
caused through the negligence of a fellow servant, and after
referring to some cases on the general question and saying that it
was unnecessary to lay down any rule which would determine in all
cases what is to be deemed a common employment, it turns to that
which was recognized as the controlling fact in the case, to-wit,
the single and absolute control which the conductor has over the
management of a train, as a separate branch of the company's
business, and says:
"There is, in our judgment, a clear distinction to be made in
their relation to their common principal, between servants of a
corporation, exercising no supervision over others engaged with
them in the same employment, and agents of the corporation, clothed
with the control and management of a distinct department, in which
their duty is entirely that of direction and superintendence. . . .
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 assigned. 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 term is he a fellow servant with
the fireman, 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
Page 149 U. S. 382
stands in the place of and represents the corporation."
And quotes from Wharton's Law of Negligence, sec.
232
a:
"The true view is that, as corporations can act only through
superintending officers, the negligences of those officers, with
respect to other servants, are the negligences of the
corporation."
And also from
Malone v. Hathaway, 64 N.Y. 5, 12:
"Corporations necessarily acting by and through agents, those
having the superintendence of various departments, with delegated
authority to employ and discharge laborers and employees, provide
material and machinery for the service of the corporation, and
generally direct and control under general powers and instructions
from the directors, may well be regarded as the representatives of
the corporation, charged with the performance of its duty,
exercising the discretion ordinarily exercised by principals, and,
within the limits of the delegated authority, the acting
principal."
The court therefore did not hold that it was universally true
that, when one servant has control over another, they cease to be
fellow servants within the rule of the master's exemption from
liability, but did hold that an instruction couched in such general
language was not erroneous when applied to the case of a conductor
having exclusive control of a train n relation to other employees
of the company acting under him on the same train. The conductor
was, in the language of the opinion, "clothed with the control and
management of a distinct department;" he was "a superintending
officer," as described by Mr. Wharton; he had "the superintendence
of a department," as suggested by the New York Court of
Appeals.
And this rule is one frequently recognized. Indeed, where the
master is a corporation, there can be no negligence on the part of
the master except it also be that of some agent or servant, for a
corporation only acts through agents. The directors are the
managing agents; their negligence must be adjudged the negligence
of the corporation, although they are simply agents. So when they
place the entire management of the corporation in the hands of a
general superintendent, such general superintendent, though himself
only an agent, is
Page 149 U. S. 383
almost universally recognized as the representative of the
corporation, the master, and his negligence as that of the master.
And it is only carrying the same principle a little further, and
with reasonable application, when it is held that, if the business
of the master and employer becomes so vast and diversified that it
naturally separates itself into departments of service, the
individuals placed by him in charge of those separate branches and
departments of service, and given entire and absolute control
therein, are properly to be considered, with respect to employees
under them, vice-principals, representatives of the master, as
fully and as completely as if the entire business of the master was
by him placed under charge of one superintendent. It was this
proposition which the court applied in the
Ross case,
holding that the conductor of a train has the control and
management of a distinct department. But this rule can only be
fairly applied when the different branches or departments of
service are, in and of themselves, separate and distinct. Thus,
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; 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. But this is
a very different proposition from that which affirms that each
separate piece of work in one of these branches of service is a
distinct department, and gives to the individual having control of
that piece of work the position of vice-principal or representative
of the master. Even the conclusion announced in the
Ross
case was not reached by a unanimous court, four of its members
being of opinion that it was carrying the thought of a distinct
Page 149 U. S. 384
department too far to hold it applicable to the management of a
single train.
The truth is, the various employees of one of these large
corporations are not graded like steps in a staircase, those on
each step being as to those on the step below in the relation of
masters, and not of fellow servants, and only those on the same
steps fellow servants, because not subject to any control by one
over the other.
Prima facie, all who enter into the employ
of a single master are engaged in a common service, and are fellow
servants, and some other line of demarcation than that of control
must exist to destroy the relation of fellow servants. All enter
into the service of the same master, to further his interests in
the one enterprise; each knows when entering into that service that
there is some risk of injury through the negligence of other
employees, and that risk, which he knows exists, he assumes in
entering into the employment. Thus, in the opinion in the
Ross case, p.
112 U. S. 382,
it was said:
"Having been engaged for the performance of specified services,
he takes upon himself the ordinary risks incident thereto. As a
consequence, if he suffers by exposure to them, he cannot recover
compensation from his employer. The obvious reason for this
exemption is that he has, or, in law, is supposed to have, them in
contemplation when he engages in the service, and that his
compensation is arranged accordingly. He cannot in reason complain
if he suffers from a risk which he has voluntarily assumed, and for
the assumption of which he is paid."
But the danger from the negligence of one specially in charge of
the particular work is as obvious and as great as from that of
those who are simply co-workers 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 employment, and, thus assumed by the
employee, it includes all co-workers to the same end, whether in
control or not. But if the fact that the risk is or is not obvious
does not
Page 149 U. S. 385
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 no neglect,
it would seem as though he was absolved from all responsibility,
and that the party who caused the injury should be himself alone
responsible. It may be said that this is only passing from one
difficulty to another, as it leaves still to be settled what is
positive duty and what is personal neglect, and yet, if we analyze
these matters a little, there will appear less difficulty in the
question. Obviously a breach of positive duty is personal neglect,
and the question in any given case is therefore what is the
positive duty of the master? He certainly owes the duty of taking
fair and reasonable precautions to surround his employee with fit
and careful co-workers, and the employee has a right to rely upon
his discharge of this duty. If the master is careless in the matter
of employing a servant, it is his personal neglect, and if without
proper care in inquiring as to his competency he does employ and
incompetent person, the fact that he has an incompetent, 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 co-servant, 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 master has neglected
anything -- that he has omitted any personal duty? -- and this
notwithstanding 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 negligent act. So it is not
Page 149 U. S. 386
possible for the master, take whatsoever pains he may, to secure
employees who will never be guilty of any negligence. Indeed, is
there any man who does not sometimes do a negligent act? Neither is
it possible for the master, with any ordinary and reasonable care,
always to secure competent and fit servants. He may be mistaken
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 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 the responsibility for such employee's negligence.
Again, a master employing a servant impliedly engages with him
that the place in which he is to work and the tools or machinery
with which he is to work, or by which he is to be surrounded, shall
be reasonably safe. It is the master who is to provide the place
and the tools and the machinery, and when he employs one to enter
into his service, he impliedly says to him that there is no other
danger in the place, the tools, and the machinery than such as is
obvious and necessary. Of course, some places of work and some
kinds of machinery are more dangerous than others, but that is
something which inheres in the thing itself, which is a matter of
necessity, and cannot be obviated. But within such limits, the
master who provides 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 guaranty 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 discharge of that duty, and if the master,
instead of discharging it himself, sees fit to have it attended to
by others, that does not change the measure of obligation to the
employee, or the latter's right to
Page 149 U. S. 387
insist that reasonable precaution shall be taken to secure
safety in these respects. Therefore it will be seen that the
question turns rather on the character of the act than on the
relations 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 competent and fit persons are in charge of any
particular work as positive as that of providing safe places and
machinery? Undoubtedly it is, and requires the same vigilance in
its discharge. But the latter duty is discharged when reasonable
care has been taken in providing such safe place and machinery, and
so the former is as fully discharged when reasonable precautions
have been taken to place fit and competent persons in charge.
Neither duty carries with it an absolute guaranty. Each is
satisfied with reasonable effort and precaution.
In the case of
Atchison, Topeka &c. Railroad v.
Moore, 29 Kan. 632, 644, Mr. Justice Valentine, speaking for
the court, thus succinctly summed up the law in these respects:
"A master assumes the duty towards his servant of exercising
reasonable care and diligence to provide the servant with a
reasonably safe place at which to work, with reasonably safe
machinery, tools, and implements to work with, with reasonably safe
materials to work upon, and with suitable and competent fellow
servants to work with him, and when the master has properly
discharged these duties, then at common law, the servant assumes
all the risks and hazards incident to or attendant upon the
exercise of the particular employment or the performance of the
particular work, including those risks and hazards resulting from
the possible negligence and carelessness of his fellow servants and
co-employees. And at common law, whenever the master delegates to
any officer, servant, agent, or employee, high or low, the
performance of any of the duties above mentioned, which really
devolve upon the master himself, then such officer, servant, agent,
or employee
Page 149 U. S. 388
stands in the place of the master, and becomes a substitute for
the master, a vice-principal, and the master is liable for his acts
or his negligence to the same extent as though the master himself
had performed the acts or was guilty of the negligence. But at
common law, where the master himself has performed his duty, the
master is not liable to any one of his servants for the acts or
negligence of any mere fellow servant or co-employee of such
servant, where the fellow servant or co-employee does not sustain
this representative relation to the master."
It would be easy to accumulate authorities on these
propositions, for questions of this kind are constantly arising in
the courts. It is enough, however, to refer to those in this Court.
In the cases of
Hough v. Railway Company, 100 U.
S. 213, and
Northern Pacific Railroad v.
Herbert, 116 U. S. 642,
this Court recognized the master's obligation to provide reasonably
suitable place and machinery, and that a failure to discharge this
duty exposed him to liability for injury caused thereby to the
servant, and that it was immaterial how or by whom the master
discharged that duty. The liability was not made to depend in any
manner upon the grade of service of a co-employee, but upon the
character of the act itself, and a breach of the positive
obligation of the master. In both of them, the general doctrine of
the master's exemption from liability for injury to one servant
through the negligence of a co-employee was recognized, and it was
affirmed that the servant assumed all the risks ordinarily incident
to his employment. In
Railroad Company v.
Fort, 17 Wall. 553, where a boy was injured through
dangerous machinery in doing an act which was not within the scope
of his duty and employment, though done at the command of his
immediate superior, this Court, while sustaining the liability of
the master, did so on the ground that the risk was not within the
contract of service, and that the servant had no reason to believe
that he would have to encounter such a danger, and declared that
the general rule was that the employee takes upon himself the risks
incident to the undertaking, among which were to be counted the
negligence of fellow servants in the same employment. In the cases
of
Page 149 U. S. 389
Randall v. Balt. & Ohio Railroad, 109 U.
S. 478, and
Quebec Steamship Co. v. Merchant,
133 U. S. 375, the
persons whose negligence caused the injury were adjudged to be
fellow servants with the parties injured, so as to exempt the
master from liability, and while the question in this case was not
there presented, yet in neither case were the two servants doing
the same work, although it is also true that in each of them there
was no control by one over the other. It may safely be said that
this Court has never recognized the proposition that the mere
control of one servant over another in doing a particular piece of
work destroys the relation of fellow servants, and puts an end to
the master's liability. On the contrary, all the cases proceed on
the ground of some breach of positive duty resting upon the master,
or upon the idea of superintendence 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 co-worker. 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. It might as well be said
that where a liveryman has a dozen carriages, the driver of each
has charge of a separate branch or department of service, and that
if one drives his carriage negligently against another employee,
the master is exempt from liability.
It may further be noticed that in this particular case, the
injury was not in consequence of the fireman's obeying any orders
of his superior officer. It did not result from the mere matter of
control. It was through negligence on the part of the engineer in
running his engine, and the injury would have been the same if the
fireman had had nothing to do on the locomotive, and had not been
under the engineer's control. In other words, an employee
carelessly manages an engine, and another employee who happens to
be near enough is injured
Page 149 U. S. 390
by such carelessness. It would seem, therefore, to be the
ordinary case of the injury on one employee through the negligence
of another.
Again, this was not simply one of the risks assumed by the
employee when entering into the employment, and yet not at the
moment fully perceived and understood. On the contrary, the peril
was known and voluntarily assumed. The plaintiff admits in his
testimony that he knew they had no right to the track without
orders, and that there was a local train on the road somewhere
between them and Bellaire, and yet, with this knowledge, and
without protest, he voluntarily rode on the engine with the
engineer.
Hammond v. Railway Company, 83 Mich. 334;
Railway Company v. Leach, 41 Ohio St. 388;
Wescott v.
Railroad Co., 153 Mass. 460.
In the first of these cases the party injured was a section
hand, who was injured while riding on a handcar in company with a
fellow laborer and the section foreman, and the negligence claimed
was in propelling the hand car along a curved portion of the track
with knowledge of an approaching train and without sending a
lookout ahead to give warning. In respect to this, Mr. Justice
Cahill, speaking for the court, says:
"But, if this conduct was negligent, it was participated in by
Hammond. The latter had been going up and down this section of the
road daily for three months. Whatever hazard there was in such a
position was known to him, and he must be held to have voluntarily
assumed it. . . . Where, as in this case, the sole act of
negligence relied on is participated in and voluntarily consented
to by the person injured, with full knowledge of the peril, the
question of the master's liability does not arise."
So, in this case, Baugh equally with the engineer knew the
peril, and with this knowledge voluntarily rode with the engineer
on the engine. He assumed the risk.
For these reasons we think that the judgment of the circuit
court was erroneous, and it must be
Reversed, and the case remanded for a new trial.
MR. JUSTICE FIELD, dissenting.
Page 149 U. S. 391
I am unable to concur in the judgment of reversal in this case.
I think the judgment of the circuit court is correct in principle,
and in accordance with the settled law of Ohio, where the cause of
action arose, which, in my opinion, should control the
decision.
The plaintiff below, the defendant in error here, is a citizen
of the State of Ohio, and the defendant, the Baltimore and Ohio
Railroad Company, is a corporation created under the laws of
Maryland. The present action was brought by the plaintiff in the
Court of Common Pleas of the County of Belmont, in the State of
Ohio. The defendant claimed citizenship in Maryland by virtue of
its incorporation in that state, and it petitioned for and obtained
a removal of the action to the Circuit Court of the United States
for the Southern District of Ohio. The plaintiff was a fireman on a
locomotive of the defendant, which, on the 4th of May, 1885, had
been employed in assisting a freight train from Bellaire, in Ohio,
to the top of the grade, about twenty miles west of that place,
when it was detached from the freight train to return to Bellaire.
It would seem that by the regulations or usages of the company it
was to return in conformity with orders from the train dispatcher,
or upon information from him as to the use or freedom of the road,
or, in the absence of such orders or information, by following
close behind some regular scheduled train which would carry signals
to notify trains coming in the opposite direction that the
locomotive was following it. It does not appear what special orders
or what information, if any, was on this occasion received by the
engineer from the train dispatcher, and by his order the locomotive
started back without following any scheduled train. He appears to
have relied upon his ability to avoid the train possibly coming in
the opposite direction by going upon a side track and waiting until
it passed. The result was that the locomotive on its way collided
with the regular local passenger train, which was running on its
schedule time, and had the right of the road. In the collision, the
plaintiff below was injured to such an extent that his right arm
had to be amputated near the shoulder, and he was rendered unable
to use his
Page 149 U. S. 392
right leg in walking. To recover damages for the injuries
sustained, he brought the present action against the railroad
company, and the question presented is whether the company was
liable for the injuries. He obtained a verdict for $6,750. for
which, and costs, judgment was entered in his favor.
The locomotive, with the tender attached to it, was called a
"helper," because it was used in helping trains up the grade from
Bellaire. After it was detached from the train helped, it passed
under the direction of the engineer, who was from that time its
conductor by appointment under the regular rules of the company.
The ninth rule provides that
"Trains are run under the charge of the conductors thereof, and
their directions relative to the management of trains will be
observed except in cases where such directions may be in violation
of the rules of this company or of safety, in which cases engineers
will call the attention of the conductors to the facts as
understood by them, and decline compliance, conductors and engine
men being in such cases held equally responsible."
And the tenth rule provides that
"Whenever a train or engine is run without a conductor, the
engine man [that is, the engineer] thereof will also be regarded as
conductor, and will act accordingly."
The engineer was thus invested from that time with the powers
and duties of a conductor. He could then control the movements of
the locomotive, and, in the absence of special orders, direct when
it should start on its return to Bellaire, the places at which it
should stop, and the speed with which it should proceed. The
position that the company could not alter its relations to the
engineer and those under his direction by such appointment does not
rest upon any tenable ground. There certainly is no substantial
reason why the company may not at any time constitute one of its
employees a conductor of an engine or train. It is a matter resting
in its discretion to appoint a conductor or to remove him from that
position at any time. The duties and liabilities of the officer and
his relations to the company depend upon the nature of the office
which he at the time holds, not upon his duties and relations in a
previously existing employment. If the corporation, acting by its
directors,
Page 149 U. S. 393
either by special designation or by established rule, appoint a
person as conductor, generally or for a limited time, he takes the
duties and incurs the responsibilities of the appointment from that
date. The person previously a subordinate or co-employee becomes
thereby the superior of the fellow laborer in his powers, and
changed in his relations to the company. To say that he continues
in his previous subordination and relationship to the company would
be like stating that a common soldier taken from the ranks and put
in command of a company or regiment of which he was a member still
retains his subordinate relations to his former fellow soldiers and
to the commander in chief. To hold that an engineer in the position
placed by the rule of the company did not become a conductor in
fact is refusing to give effect to the express terms of the rule.
It is declaring that he shall not be what the established rule of
the company declares he shall be. I do not think that this position
can be maintained.
A conductor of a train or engine is, by the very nature of the
office, its manager and director in the particular service in which
it is employed within the general regulations of the company. He
directs, subject to such general regulations, when the train or
engine shall start at what speed it shall travel, what special
route it shall take within the designated limits of the company,
and, when necessary, may designate who shall be employed under him.
In the case before us, he represented the company in all these
respects; otherwise the company was without a representative on the
helper, which will not be contended. In its management, he, as
conductor, stood in the place of the company, and, if anyone was
injured by his negligence in the discharge of his duties, the
company was responsible.
The court below instructed the jury in substance as follows:
that the law assumes that where a person enters into any
employment, he takes the risks incident to that employment so far
as they may result from the nature of the employment itself, or
from the negligence or default of his fellow servants -- that is,
of those who are not placed in authority and control over him --
but who occupy substantially the same relation to
Page 149 U. S. 394
the company as he does; but that if an injury results to an
employee from the negligence or carelessness on the part of one
placed in authority over the employees of the company so as to
direct and control them, the company is liable; that therefore if
the engineer and the fireman were fellow servants, as thus
described, the plaintiff could not recover; but that if the
engineer was the agent or representative of the company, and the
fireman acted under his direction and was subject to his orders,
and the injury resulted from the default or negligence or wrong of
the engineer, then it must be attributed to the company as the
negligence, default, or wrong of the company.
In thus instructing the jury, the court followed the law as
settled by the decisions of the Supreme Court of Ohio, in which
state the cause of action arose and the case was tried, that the
company was liable if the negligence was by one acting in the
character of its representative or agent in directing and
controlling the movements of the locomotive and the party injured
was subject to his orders. Any other ruling would have been at
variance with those decisions. The law of Ohio on the matter under
consideration was the law to control. The courts of the United
States cannot disregard the decisions of the state courts in
matters which are subjects of state regulation. The relations of
employees, subordinate to the directors of the company, but
supervising and directing the labors of others under them, to their
principals, and the liability of the principals for the negligent
acts of their subordinate supervising and directing agents, are
matters of legislative control, and are in no sense under the
supervision or direction of the judges or courts of the United
States. There is no unwritten general or common law of the United
States on the subject. Indeed, there is no unwritten general or
common law of the United States on any subject.
See 1
Tucker's Blackstone, vol. 1, Appendix, 422, 433. The common law may
control the construction of terms and language used in the
Constitution and statutes of the United States, but creates no
separate and independent law for them. The federal government is
composed of independent states, "each of
Page 149 U. S. 395
which," as said in
Wheaton v.
Peters, 8 Pet. 591,
33 U. S.
658,
"may have its local usages, customs, and common law. There is no
principle which pervades the Union, and has the authority of law,
that is not embodied in the Constitution or laws of the Union. The
common law could be made a part of our federal system only by
legislative adoption. When, therefore, a common law right is
asserted, we must look to the state in which the controversy
originated."
And there are few subjects upon which there is such diversity of
opinion and conflict of decision, not merely between the courts and
judges of the different states, but between the judges of the
federal courts, as the liability of employers for the negligent
acts of their subordinate agents, having control and direction of
servants in a common employment under them. Even as to what shall
be deemed a common employment, Mr. Beach, a leading writer on
contributory negligence, states that there are many "hundreds of
clearly irreconcilable decisions." Conceding that a federal court,
sitting within a state where the law relating to the subject under
consideration is unsettled and doubtful, must exercise an
independent judgment and declare the law upon the best light it can
obtain, this rule has no application where the law of the state is
neither unsettled nor doubtful, but is established and certain, and
recognized as such by its judicial authorities. While, as we have
indicated, there is no general or common law throughout the country
-- that is, of the United States -- as to the extent and limits of
the liability of a corporation to its employees in the case of a
common employment under a supervising and directing agent, in Ohio
the law on the subject is neither uncertain nor doubtful; it has
been settled there for many years. In
Little Miami Railroad v.
Stevens, 20 Ohio 415, it was held by the supreme court of that
state over forty years ago that where an employer placed one in his
employ under the direction of another, also in his employ, such
employer was liable for injury to the person placed in a
subordinate situation by the negligence of his superior, and that
decision has been adhered to ever since. There, a railroad company
had placed an engineer in its employ under the control of a
conductor of one of its trains who directed
Page 149 U. S. 396
when the cars were to start and when to stop, and it was held
liable for an injury received by him caused by the negligence of
the conductor. A collision had occurred by reason of the omission
of the conductor to inform the engineer of a change of place
ordered in the passing of trains. The company claimed the exemption
from liability on the ground that the engineer and conductor were
fellow servants, and that the engineer had assumed by his contract
the risk of the negligence of the conductor, and also that public
policy forbade a recovery in such cases; but the court rejected
both positions. In
Cleveland, Columbus &c. Railroad v.
Keary, 3 Ohio St. 201, the same court affirmed the doctrine
thus declared, and held that where a brakeman in the employ of a
railroad company, on a train under the control of a conductor
having exclusive command, was injured by the carelessness of the
conductor, the company was responsible, holding that the conductor
was the representative of the company upon which rested the
obligation to manage the train with skill and care. In its opinion,
the court said no service was common that did not admit a common
participation, and no servants were fellow servants when one was
placed in control over the other. In
Berea Stone Co. v.
Kraft, 31 Ohio St. 287, decided in 1877, that court held that
a master was liable for an injury to a servant resulting from the
negligence of a superior servant. There, the corporation was
organized to quarry and manufacture stone, and, while in the
employment of the company and engaged in loading stone on its cars,
one of the employees received an injury through the carelessness
and negligence of an agent and servant of the company in the
selection and use of unsafe and dangerous implements and machinery
for the purpose of loading the stone upon the cars for
transportation. The unsafe and defective machinery was selected by
the foreman of the quarry. It was contended that the foreman and
the laborers under him were fellow servants, but the court held
that the foreman, occupying substantially the relation of
principal, was in no just or proper sense a fellow servant nor in
what might be properly denominated a common service, and said:
"The relation existing between them was such as
Page 149 U. S. 397
brings the case clearly within the rule established by repeated
adjudications of this court and now
firmly settled in the
jurisprudence of the state that where one servant is placed by
his employer in a position of subordination to and subject to the
orders and control of another, and such inferior servant, without
fault, and while in the discharge of his duties, is injured by the
negligence of the superior servant, the master is liable for such
injury."
It will be observed that the court states in this opinion that
the rule of liability was then firmly settled in the jurisprudence
of the state. If any rule of law can be considered as settled by
judicial decisions, that rule is settled as the law of Ohio. The
question is not whether that is the best law for Ohio, but whether
it is the law of that state. It will be time to consider of its
change or improvement when that matter is submitted to us, which is
not yet. If the law were expressed in a statute, no federal court
would presume to question its efficacy and binding force. The law
of the state on many subjects is found only in the decisions of its
courts, and when ascertained and relating to a subject within the
authority of the state to regulate, it is equally operative as if
embodied in a statute, and must be regarded and followed by the
federal courts in determining causes of action affected by it
arising within the state.
Bucher v. Cheshire Railroad,
125 U. S. 555;
Detroit v. Osborne, 135 U. S. 492,
135 U. S. 497.
For those courts to disregard the law of the state as thus
expressed upon any theory that there is a general law of the
country on the subject at variance with it, in cases where the
causes of action have arisen in the state, and which, if tried in
the state courts, would be governed by it, would be nothing less
than an attempt to control the state in a matter in which the state
is not amenable to federal authority by the opinions of individual
federal judges at the time as to what the general law ought to be
-- a jurisdiction which they never possessed, and which, in my
judgment, should never be conceded to them. That doctrine would
inevitably lead to a subversion of the just authority of the state
in many matters of public concern. It would also be in direct
conflict with section 721 of the Revised Statutes, which declares
that
"The laws of the several states,
Page 149 U. S. 398
except where the Constitution, treaties, or statutes of the
United States otherwise require or provide, shall be regarded as
rules of decision in trials at common law in the courts of the
United States, in cases where they apply."
This provision is a reenactment of section 34 of the original
Judiciary Act. 1 Stat. 73, 92, c.20. Under the term "laws," as here
mentioned, are included not merely those rules and regulations
having the force of law which are expressed in the statutes of the
states, but also those which are expressed in the decisions of
their judicial tribunals. The latter are far more numerous, and
touch much more widely the interests and rights of the citizens of
a state in their varied relations to each other and to society in
the acquisition, enjoyment, and transmission of property, and the
enforcement of rights and redress of wrongs. The term "laws" in the
Constitution and the statutes of the United States is not limited
solely to legislative enactments unless so declared or indicated by
the context. When the Fourteenth Amendment ordains that no state
shall deny to any person within its jurisdiction "the equal
protection of the laws," it means equal protection not merely by
the statutory enactments of the state, but equal protection by all
the rules and regulations which, having the force of law, govern
the intercourse of its citizens with each other and their relations
to the public, and find expression in the usages and customs of its
people and in the decisions of its tribunals. The guaranty of this
great amendment "as to the equal protection of the laws" would be
shorn of half of its efficacy if it were limited in its application
only to written laws of the several states, and afforded no
protection against an unequal administration of their unwritten
laws. It has never been denied, that I am aware of, that decisions
of the regular judicial tribunals of a state, especially when
concurring for a succession of years, are at least, evidence of
what the law of the state is on the points adjudged. The law, being
thus shown, is as obligatory upon those points in another similar
case, arising in the state, as if expressed in the most formal
statutory enactments. If this is not so, I may ask, in anticipation
of what I may say hereafter, what becomes of the judicial
independence of the states?
Page 149 U. S. 399
The doctrine that the application of the so-called general and
unwritten law of the country to control a state law, as expressed
by its courts, in conflict with it has the sanction of Congress by
its supposed knowledge of the decisions of this Court to that
effect, and its subsequent silence respecting them, does not strike
me as having any persuasive force. The silence of Congress against
judicial encroachments upon the authority of the states cannot be
held to estop them from asserting the sovereign rights reserved to
them by the Tenth Amendment of the Constitution. Such silence can
neither augment the powers of the general government nor impair
those of the states. Silence by one or both will not change the
Constitution and convert the national government from one of
delegated and limited powers, or dwarf the states into subservient
dependencies. Acquiescence in or silence under unauthorized power
can never give legality to its exercise under our form of
government.
Marshall, when a member of the Virginia convention called to
consider the question of the adoption of the Constitution of the
United States, in answer to an inquiry as to the laws of what state
a contract would be determined, answered: "By the laws of the state
where the contract was made. According to those laws, and those
only, can it be decided." 3 Elliott, Deb. 556.
Judge Tucker, in the appendix to the first volume of his edition
of Blackstone, says that the common law has been variously
administered or adopted in the several states. Is the federal
judicial department to force upon these states views of the common
law which their courts and people have repudiated? I cannot assent
to the doctrine that there is an atmosphere of general law floating
about all the states, not belonging to any of them, and of which
the federal judges are the especial possessors and guardians, to be
applied by them to control judicial decisions of the state courts
whenever they are in conflict with what those judges consider ought
to be the law.
The present case presents some singular facts. The verdict and
judgment of the court below were in conformity with the
Page 149 U. S. 400
law of Ohio, in which state the cause of action arose and the
case was tried, and this Court reverses the judgment because
rendered in accordance with that law, and holds it to have been
error that it was not rendered according to some other law than
that of Ohio, which it terms the general law of the country. This
Court thus assumes the right to disregard what the judicial
authorities of that state declare to be its law, and to enforce
upon the state some other conclusion as law which it has never
accepted as such, but always repudiated. The fireman, who was so
dreadfully injured by the collision caused by the negligence of the
conductor of the engine that his right arm had to be amputated from
the shoulder and his right leg was rendered useless, could obtain
some remedy from the company by the law of Ohio as declared by its
courts, but this Court decides, in effect, that that law, thus
declared, shall not be treated as its law, and that the case shall
be governed by some other law which denies all remedy to him. Had
the case remained in the state court, where the action was
commenced, the plaintiff would have had the benefit of the law of
Ohio. The defendant asked to have the action removed, and obtained
the removal to a federal court because it is a corporation of
Maryland, and thereby a citizen of that state by a fiction adopted
by this Court that members of a corporation are presumed to be
citizens of the state where the corporation was created, a
presumption which in many cases is contrary to the fact, but
against which no averment or evidence is held admissible for the
purpose of defeating the jurisdiction of a federal court.
Louisville Railroad Co. v.
Letson, 2 How. 497;
Cowles
v. Mercer County, 7 Wall. 121;
Paul v.
Virginia, 8 Wall. 168,
68 U. S. 178;
Steamship Co. v. Tugman, 106 U. S. 120.
Thus, in this case, a foreign corporation not a citizen of the
State of Ohio, where the cause of action arose, is considered a
citizen of another state by a fiction, and then, by what the Court
terms the general law of the country, but which this Court held in
Wheaton v. Peters has no existence in fact, is given an
immunity from liability in cases not accorded to a citizen of that
state under like circumstances. Many will doubt the wisdom of a
system which permits such a vast
Page 149 U. S. 401
difference in the administration of justice for injuries like
those in this case between the courts of the state and the courts
of the United States.
I am aware that what has been termed the general law of the
country -- which is often little less than what the judge advancing
the doctrine thinks at the time should be the general law on a
particular subject -- has been often advanced in judicial opinions
of this Court to control a conflicting law of a state. I admit that
learned judges have fallen into the habit of repeating this
doctrine as a convenient mode of brushing aside the law of a state
in conflict with their views. And I confess that, moved and
governed by the authority of the great names of those judges, I
have myself, in many instances, unhesitatingly and confidently, but
I think now erroneously, repeated the same doctrine. But
notwithstanding the great names which may be cited in favor of the
doctrine, and notwithstanding the frequency with which the doctrine
has been reiterated, there stands, as a perpetual protest against
its repetition, the Constitution of the United States, which
recognizes and preserves the autonomy and independence of the
states -- independence in their legislative and independence in
their judicial departments. Supervision over either the legislative
or the judicial action of the states is in no case permissible
except as to matters by the Constitution specially authorized or
delegated to the United States. Any interference with either,
except as thus permitted, is an invasion of the authority of the
state, and to that extent a denial of its independence. As said by
this Court, speaking through Mr. Justice Nelson,
"the general government and the states, although both exist
within the same territorial limits, are separate and distinct
sovereignties, acting separately and independently of each other,
within their respective spheres. The former in its appropriate
sphere is supreme, but the states, within the limits of their
powers not granted, or, in the language of the Tenth Amendment,
'reserved,' are as independent of the general government as that
government within its sphere is independent of the states."
Collector v.
Day, 11 Wall. 113,
78 U. S.
124.
Page 149 U. S. 402
To this autonomy and independence of the states their
legislation must be as free from coercion as if they were separated
entirely from connection with the Union. There must also be the
like freedom from coercion or supervision in the action of their
judicial authorities. Upon all matters of cognizance by the states
over which power is not granted to the general government, the
judiciary must be as free in its action as the courts of the United
States are independent of the state courts in matters subject to
federal cognizance.
"Such being the separate and independent condition of the states
in our complex system, as recognized by the Constitution, and the
existence of which is so indispensable that, without them, the
general government itself would disappear from the family of
nations, it would seem to follow,"
as said by the Court in the case cited,
"as a reasonable, if not a necessary, consequence that the means
and instrumentalities employed for carrying on the operations of
their governments, for preserving their existence, and fulfilling
the high and responsible duties assigned them in the Constitution,
should be left free and impaired, should not be liable to be
crippled, much less defeated, by the taxing power of another
government,"
to which we may add, nor by the supervision and action of
another government in any form. "We have said," continues the Court
in the same case,
"that one of the reserved powers was that to establish a
judicial department; it would have been more accurate, and in
accordance with the existing state of things at the time, to have
said the power to maintain a judicial department. All of the
thirteen states were in possession of this power, and had exercised
it at the adoption of the Constitution, and it is not pretended
that any grant of it to the general government is found in that
instrument. It is therefore one of the sovereign powers vested in
the states by their constitutions, which remained unaltered and
unimpaired, and in respect to which the state is as independent of
the general government as that government is independent of the
states."
Such being the nature of the judicial department, and the free
exercise of its powers being essential to the independence
Page 149 U. S. 403
of the states, how can it be said that its decisions as to the
law of the state, upon a matter subject to its cognizance, can be
ignored and set aside by the courts of the United States for the
law or supposed law of another state or sovereignty, be it the
general or special law of that state or sovereignty? If a federal
court exercise its duties within one of the states where the law on
the subject under consideration is uncertain and unsettled,
"where," as Chief Justice Marshall said, "the state courts afford
no light," it must, as we have already stated, exercise an
independent judgment thereon, and pronounce such judgment as it
deems just. But no foreign law, or law out of the state, whether
general or special, or any conception of the court as to what the
law ought to be, has any place for consideration where the law of
the state in which the action is pending is settled and certain. A
law of the state of that character, whether expressed in the form
of a statute or in the decisions of the judicial department of the
government, cannot be disregarded and overruled, and another law,
or notion of what the law should be, substituted in its place
without a manifest usurpation by the federal authorities. I cannot
permit myself to believe that any such conclusion, when more fully
examined, will ultimately be sustained by this Court. I have an
abiding faith that this, like other errors, will in the end "die
among its worshipers."
The independence of the states, legislative and judicial, on all
matters within their cognizance is as essential to the existence
and harmonious workings of our federal system as is the legislative
and judicial supremacy of the federal government in all matters of
national concern. Nothing can be more disturbing and irritating to
the states than an attempted enforcement upon its people of a
supposed unwritten law of the United States under the designation
of the general law of the country, to which they have never
assented and which has no existence except in the brain of the
federal judges in their conceptions of what the law of the states
should be on the subjects considered.
The theory upon which inferior courts of the United States take
jurisdiction within the several states is, when a right is
Page 149 U. S. 404
not claimed under the Constitution, laws, or treaties of the
United States, that they are bound to enforce, as between the
parties, the law of the state. It was never supposed that, upon
matters arising within the states, any law other than that of the
state would be enforced, or that any attempt would be made to
enforce any other law. It was never supposed that the law of the
state would be enforced differently by the federal courts sitting
in the state, and the state courts; that there could be one law
when a suitor went into the state courts and another law when the
suitor went into the federal courts, in relation to a cause of
action arising within the state -- a result which must necessarily
follow if the law of the state can be disregarded upon any view
which the federal judge may take of what the law of the state ought
to be, rather than what it is.
As said by the Supreme Court of Pennsylvania at an early day (as
far back as 1978), "the government of the United States forms a
part of the government of each state."
Respublica v.
Cobbet, 3 Dall. 473. To which the same court, over
a half century later, added:
"It follows that its courts are the courts of each state; they
administer justice according to the laws of the state as construed
and settled by its own supreme tribunal. This has been more than
once solemnly determined by the Supreme Court of the Union to be
the rule of their decision, whenever the construction of the
Constitution of the United States, treaties, or acts of Congress
does not come in question."
Commonwealth v. Pittsburgh & Connellsville
Railroad, 58 Penn.St. 44.
In
Shelby v.
Guy, 11 Wheat. 362,
24 U. S. 365,
this Court, in considering the meaning to be given to the words
"beyond the seas," in a statute of limitations of Tennessee,
said:
"That the statute laws of the states must furnish the rule of
decision to this Court so far as they comport with the Constitution
of the United States in all cases arising within the respective
states, is a position that no one doubts. Nor is it questionable
that a fixed and received construction of their respective statute
laws, in their own courts, makes, in fact a part of the statute law
of the country, however we may doubt the propriety of
Page 149 U. S. 405
that construction. It is obvious that this admission may at
times, involve us in seeming inconsistencies, as, where states have
adopted the same statutes and their courts differ in the
construction. Yet that course is necessarily indicated
by the
duty imposed on us to administer, as between certain individuals,
the laws of the respective states, according to the best lights we
possess of what those laws are."
In
Beauregard v. New
Orleans, 18 How. 497,
59 U. S. 502,
which was before us in 1855, this Court, in speaking through Mr.
Justice Campbell, said:
"The Constitution of this Court requires it to follow the laws
of the several states as rules of decision wherever they properly
apply. And the habit of the Court has been to defer to the
decisions of their judicial tribunals upon questions arising out of
the common law of the state, especially when applied to the title
of lands. No other course could be adopted with any regard to
propriety. Upon cases like the present, the relation of the courts
of the United States to a state is the same as that of its own
tribunals. They administer the laws of the state, and to fulfill
that duty they must find them as they exist in the habits of the
people and in the exposition of their constituted authorities.
Without this the peculiar organization of the judicial
tribunals of the states and the Union would be productive of the
greatest mischief and confusion."
The position that the plaintiff, the fireman, voluntarily
assumed the risk in this case because he knew the helper had no
right to the track without orders, and there was possibly a local
train somewhere on the track, by continuing on the train instead of
leaving it, does not strike me as having much force. It was not
considered of sufficient importance to be called to the attention
of the court below, or of the jury. Its suggestion now seems to be
an afterthought of counsel. It is not positively shown that any
special orders as to the movement of the helper on its return, or
any information as to the use or freedom of the road, were received
by the engineer from the train dispatcher; but the fireman had no
actual knowledge on that point, though he had a right to presume
that such was the case, from the fact that immediately upon the
receipt of
Page 149 U. S. 406
an order given to the conductor at Burr's Mills, the latter
directed that the helper start back. Nor did the fireman have any
actual knowledge whether the train he was directed to follow was or
was not a regular scheduled train, though he had a right to presume
that it was, from the orders of the conductor. His information as
to what was known, and consequently directed or omitted, by the
engineer on that subject was too imperfect for him to act upon it.
His continuance as fireman on the locomotive after its movement to
return to Bellaire was not with sufficient knowledge of any failure
of the engineer to give the proper orders as to a scheduled train
to justify an abandonment of the locomotive. It was under the
direction of the engineer, not of the fireman, and he may have felt
confident that it could be run on a side track, if necessary, to
avoid any possible collision with a train coming in the opposite
direction, as was sometimes done. It would be a dangerous notion to
put into the heads of firemen and other employees of a railroad
company that if they had reason to believe, without positive
information on the subject, that dangers attended the course
pursued by the movements of the train under the direction of its
conductor, they would be deemed to assume the risk of such
movements if they did not expostulate with him, and, if he did not
heed the expostulation, leave the train, even after it had
commenced one of its regular trips. A strange set of legal
questions would arise, more embarrassing to the courts than the
fellow servant question, if such action should be deemed essential
to the retention by the employee of the right to claim indemnity
for injuries which might follow from the course pursued. If the
employees could abandon a train after it had commenced one of its
regular trips when they had reason to believe, without absolute
information, that danger might attend their continuance on it, new
strikes of employees would spring up to embarrass the commerce of
the country and annoy the community, founded upon such alleged
apprehensions. The circumstances attending the cases in which an
employee has been held to have voluntarily assumed the risks of an
irregular, improper, or ill-advised movement of a train, under
directions of its
Page 149 U. S. 407
conductor, are essentially different from those of the case
before us. The testimony in the record, upon which the allegation
is made that the fireman voluntarily assumed the risks taken by the
engineer with knowledge of their existence, is of the most flimsy
and unsatisfactory character conceivable. It only discloses general
ignorance by him of what the engineer did, or of information upon
which he acted, as will be seen by its perusal. The allegation,
which is founded upon a few broken and detached sentences, loses
its entire force when the context is read. The whole testimony
bearing upon this subject is given in the note below.
*
Page 149 U. S. 408
It only remains to notice the observations made upon the
decision in the
Ross case, which seem to me to greatly
narrow
Page 149 U. S. 409
its effect and destroy its usefulness as a protection to
employees in the service of large corporations, under the direction
and control of supervising agents. That was an action brought by a
locomotive engineer in the employ of the Chicago, Milwaukee and St.
Paul Railroad Company to recover damages for injuries received in a
collision which was caused by the negligence of the conductor of
the train. The company claimed exemption from liability on the
ground that the conductor and engineer were fellow servants, but
the court charged the jury that it was clear that if the company
saw fit to place one of its employees under the control and
direction of another, then the two were not fellow servants engaged
in the same common employment within the meaning of the rule of law
which was the subject of consideration, and that by its general
order, the company made the engineer, in an important sense,
subordinate to the conductor. To this charge exceptions were taken.
The correctness of the charge was the question discussed in the
case by counsel, and determined by the court. Its correctness was
necessarily sustained by the judgment of affirmance, which could
not have been rendered if the exceptions to it were well taken. The
majority of the court in their opinion, while admitting that the
charge is much like the one in the present case, and might be well
said to be sufficient authority for sustaining and affirming the
judgment, contend that the court did not attempt to approve the
instruction generally, but simply held that it was not erroneous as
applied to the facts of the case, and in support of this view cite
the language of the court used to show that the conductor of a
railway company, exercising certain authority, represents the
company, and therefore for injuries resulting from his negligent
acts the company was responsible, and the statement that the case
required no further decision. Clearly it did not require any
further decision, for it covers the instruction objected to, that
if the company saw fit to place one of its employees under the
control and direction of another, then the two were not fellow
servants engaged in the same employment within the meaning of the
rule of law as to fellow servants. A conductor of a railway
company, directing
Page 149 U. S. 410
the movements of its train and having its general management,
illustrates the general doctrine asserted and sought to be
maintained throughout the opinion in the
Ross case, that
railroad companies in their operations, extending in some instances
hundreds and even thousands of miles, and passing through different
states, must necessarily act through superintending agents --
employees subordinate to the company, but superior to the employees
placed under their direction and control. The necessity of this
doctrine of subordinate agencies standing for and representing the
company was well illustrated in the duties and powers of a
conductor of a train or engine. They were stated as an illustration
of the necessity and wisdom of the rule, and not to weaken or
narrow the general doctrine asserted in the decision of the court,
and which its opinion, in almost every line, attempted to maintain.
The necessity of subordinate agencies exists whenever a train or
engine is removed from the immediate presence and direction of the
head officers of the company.
The opinion of the majority not only limits and narrows the
doctrine of the
Ross case, but in effect denies, even with
the limitations placed by them upon it, the correctness of its
general doctrine and asserts that the risks which an employee of a
company assumes from the service which he undertakes is from the
negligence of one in immediate control, as well as from a
co-worker, and that there is no superintending agency for which a
corporation is liable, unless it extends to an entire department of
service.
A conclusion is thus reached that the company is not responsible
in the present case for injuries received by the fireman from the
negligent acts of the conductor of the engine.
There is a marked distinction in the decisions of different
courts upon the extent of liability of a corporation for injuries
to its servants from persons in their employ. One course of
decisions would exempt the corporation from all responsibility for
the negligence of its employees, of every grade, whether exercising
supervising authority and control over other employees of the
company or otherwise. Another course of
Page 149 U. S. 411
decisions would hold a corporation responsible for all negligent
acts of its agents, subordinate to itself, when exercising
authority and supervision over other employees. The latter course
of decisions seems to me most in accordance with justice and
humanity to the servants of a corporation.
I regret that the tendency of the decision of the majority of
the Court in this case is in favor of the largest exemptions of
corporations from liability. The principle in the
Ross
case covers this case, and requires, in my opinion, a judgment of
affirmance.
MR. CHIEF JUSTICE FULLER, dissenting.
I dissent because, in my judgment, this case comes within the
rule laid down in
Chicago, Milwaukee &c. Railway v.
Ross, 112 U. S. 377, and
the decision unreasonably enlarges the exemption of the master from
liability for injury to one of his servants by the fault of
another.
* The detached and broken sentences, upon which the allegation
is made that the plaintiff voluntarily assumed the risk in the
case, are printed in italics in the passage from the record in
which they are given below with their context:
As to orders received on the morning the train started back to
Bellaire:
Record, p. 40.
"Question. Now, Mr. Baugh, do you know of any order that was
received that morning by your train?"
"Answer. Yes, sir."
"Q. What do you know of?"
"A. All I know is an order thrown off while we were at Burr's
Mills, and I gave it to the engineer, and he told me to let him
out; that we would go."
"Q. What was that order?"
"A. I don't know."
"Q. Do you know what it was?"
"A. No, sir."
"Q. What happened immediately after you gave your engineer that
order?"
"A. He told me to let him out."
"Q. What did happen immediately after you gave that order to the
engineer?"
"A. He started to go."
"Q. Who opened the switch?"
"A. I did it."
"Q. What did you do then?"
"A. Shut the switch and got on the engine."
"
* * * *"
Record, p. 41.
"Q. Do you know what time it was when you started out of the
switch at Burr's?"
"A. No sir."
"Q. Did you know then what time of day it was?"
"A. No sir."
"Q. Did you pay any attention to that at all?"
"A. No; I did not. It was not my business to pay attention."
"Q. Well, I was going to ask you was that any part of your
duty?"
"A. No, sir."
"Q. Whose direction were you under?"
"A. Under my engineer's."
"Q. Did you receive any orders as you went west that morning at
Lewis' Mills?"
"A. I don't know."
"Q. On your helper, who received the orders?"
"A. The engineer did. He received all the orders."
Record, p. 47.
"Q. Now, Mr. Baugh, when you got up to Burr's Mills, to that
turntable, just explain to the jury the process by which that
engine would get back to Bellaire?"
"A. We had all the trains on the road to contend with, and we
had to run inside tracks when coming down to keep out of the way of
them."
"Q. When did you first learn the fact that you had to keep out
of the way -- out of the way of what trains?"
"A. All the trains that was expected."
"Q. The schedule trains, would it not be?"
"A. I reckon."
"Q.
What was the process -- what right had you to go back
after you got to Burr's Mills or the turntable? You had no right to
the track at all unless you had orders, had you?"
"A.
No, sir; didn't have no right without orders."
"Q. And you proposed to get a right to the track by writing an
order which you have said you did write?"
"A. I was going to flag on the engine. I did not want to run
them on my orders."
"Q. You had been running the length of time, whatever it was;
you knew the time of this local train out of Bellaire?"
"A. No sir."
"Q. You were in the habit of meeting it?"
"A. I did not know what time they left."
"Q. You knew where you met them always?"
"A. No, sir; we would not meet them perhaps once in a month. We
would not meet them once a month sometimes."
"Q. You knew the time of the local train?"
"A. No, sir."
"Q. You knew there was a local train on the road running out of
Bellaire in the morning?"
"Yes, sir."
"Q. You knew when you were running -- knew where you met
them?"
"A. I did not know anything about it that time."
"Q. Is it not a part of your duty to learn these things? I want
to know if you did not know that there was a local train and has
been for the last ten years running out of Bellaire about the same
time -- about the same hour and the same minute."
"A. No, indeed; I did not."
"Q. And you were at work at -- in the shops and yard, and did
not know anything about it?"
"A. No, sir; I did not."
"Q. You entirely overlooked that fact? No answer."
"
* * * *"
Record, p. 49.
"Q.
Did you know that there was a local train coming out
about that time?"
"A. I knew there was a local train on the road someplace."
"Q. Between you and Bellaire?"
"A. Yes, sir."
"Q. I wish you would explain to the jury what you mean by
flagging. You say your intention was to flag down to Bellaire. How
is that done?"
"A. We make out an order and give it to the engineer on the
train we want to follow; sign the engineer's name, and I went with
this flag on the train, and our engine followed behind until we met
another train, and then we would side track there and pass."
"Q. That is, you would keep far enough ahead so that if you met
a train you would signal it and stop the train?"
"A. I would go right on the train that had the right of way of
the track, and our engine followed after."