The questions of law arising from these facts, upon which the court desired instruction for the proper decision of the writ of error, were certified as follows: (1) Whether the defendant in error and O'Brien were or were not fellow servants; and (2) whether, from negligence of O'Brien in failing to place himself or some one else at the brake of the backwardly moving cars, the plaintiff in error is responsible.
Mr. Chief Justice Fuller, Mr. Justice Field, and Mr. Justice Harlan dissenting.
R. W. De Forest, for plaintiff in error.
A. G. Vanderpool, for defendant in error. [160 U.S. 259, 263]
Mr. Justice WHITE, after stating the facts in the foregoing language, delivered the opinion of the court.
We held in Railroad Co. v. Baugh, [160 U.S. 259, 264] 149 U.S. 368 , 13 Sup. Ct. 914, that an engineer and fireman of a locomotive engine running alone on a railroad, without any train attached, when engaged on such duty, were fellow servants of the railroad company; hence, that the fireman was precluded from recovering damages from the company for injuries caused, during the running, by the negligence of the engineer. In that case it was declared that: 'Prima facie, all who enter the employment of a single master are engaged in a common service, and are fellow servants. ... All enter in the service of the same master to further his interests in the one enterprise.' And while we in that case recognized that the heads of separate and distinct departments of a diversified business may, under certain circumstances, be considered, with respect to employees under them, vice principals or representatives of the master, as fully and as completely as if the entire business of the master was by him placed under the charge of one superintendent, we declined to affirm that each separate piece of work was a distinct department, and made the one having control of that piece of work a vice principal or representative of the master. It was further declared that 'the danger from the negligence of one specially in charge of the particular work was as obvious and as great as from that of those who were simply coworkers with him in it. Each is equally with the other an ordinary risk of the employment,' which the employ e assumes when entering upon the employment, whether the risk be obvious or not. It was laid down that the rightful test to determine whether the negligence complained of was an ordinary risk of the employment was whether the negligent act constituted a breach of positive duty owing by the master, such as that of taking fair and reasonable precautions to surround his employees with fit and careful co- workers, and the furnishing to such employees of a reasonably safe place to work, and reasonably safe tools or machinery with which to do the work; thus making the question of liability of an employer for an injury to his employ e turn rather on the character of the alleged negligent act, than on the relations of the employees to each other, so that, if the act is one done in the discharge of some positive duty of [160 U.S. 259, 265] the master to the servant, then negligence in the act is the negligence of the master, but, if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is liable therefor.
There is nothing in the later decision of this court in Railroad Co. v. Hambly, 154 U.S. 349 , 14 Sup. Ct. 983, militating against the views expressed in the Baugh Case. On the contrary, that case is approvingly referred to ( 154 U.S. 359 , 14 Sup. Ct. 983), although said there to involve a different question from that which was in the Hambly Case.
The principles thus applied in the case referred to are in perfect harmony with the rules enforced by the supreme court of the state of New Jersey, within whose territory the accident happened which gave rise to the preset controversy.
In O'Brien v. Dredging Co., 53 N.J.Law, 291, 21 Atl. 324, O'Brien sought to hold the company liable for an injury sustained by him while employed as a deck hand on one of their dredges, at the time used in dredging the James river, near Richmond, under a contract with the United States government. The ground of liability alleged was that the injury had been caused by the negligence of another employ e, one Cannon, who was called the 'captain' of the dredge. Cannon was authorized to employ men to work on the dredge, subject to the approval of the general superintendent ( who had his head-quarters at the home office of the company), who had power to disapprove or discharge them; the duty of the captain was to operate the dredge in said dredging; plaintiff was employed by Cannon as a deck hand on the dredge, and his duty was to aid in the operation of the dredge; and Cannon had charge of the men so employed, and they were under him. The court held that while Cannon was intrusted with some authority to employ the workmen, yet, with respect to the operation of the dredge in the prosecution of defendant's business, he was not a general superintendent, but a mere foreman of the gang of workmen, engaged with them in the execution of the master's work. He was a superior and they [160 U.S. 259, 266] were inferior workmen, but all were employed in a common operation, though in different grades of service. In the course of the opinion, on the question of the risks which must be contemplated are assumed by one entering the service of another, the court said:
Applying the principles announced by this court and the supreme court of New Jersey to the facts of the case at bar, it is clear that O'Brien and Keegan were fellow servants. O'Brien's duties were not even those of simple direction and superintendence over the operations of the drill crew. He was a component part of the crew, an active coworker in the manual work of switching, with the specific duty assigned to him by the yardmaster of turning the switches. He was subordinate to the yard master, who had jurisdiction over this and other drill crews; and it was the yard master who employed and discharged all the workers in the yard, giving them their general instructions, and assigning them to their duties. O'Brien's control over the other members of the drill crew [160 U.S. 259, 267] was similar to the control which a section foreman exercises over the men in his section; and following its construction of the decisions of this court in the Baugh and Hambly Cases, the circuit court of appeals for the Eighth circuit has held that a section foreman is a fellow servant of a member of his crew, and that one of the crew injured by the negligence of the foreman could not recover. Railway Co. v. Waters, 70 Fed. 28.
In Potter v. Railroad Co., 136 N. Y. 77, 32 N. E. 603, employees of a railroad company, while switching cars in the company's yard, under the direction of a yard master, shunted a number of cars onto a track so that they collided with a car being inspected, and caused the death of the inspector. It was claimed that proper and reasonable care required that there should have been a brakeman on the front of the cars, to control in an emergency their motion, when detached from the engine. In the absence of allegation of proof to the contrary, the court presumed that competent and sufficient servants were employed, and proper regulations for the management of the business had been established, and observed (136 N. Y. 82, 32 N. E. 603):
We adopt this statement as proper to be applied to the case at bar. A personal, positive duty would clearly not have been imposed upon a natural person, owner of a railroad, to supervise and control the details of the operation of switching cars in a railroad yard; neither is such duty imposed as a positive duty upon a corporation; and if O'Brien was negligent, in failing to place himself or some one else at the brake of the backwardly moving cars, such omission not being the performance of a positive duty owing by the master, the plaintiff in error is not responsible therefor. [160 U.S. 259, 268] These conclusions determine both questions certified for our decision, and accordingly the first question is answered in the affirmative, and the second in the negative.
Mr. Chief Justice FULLER, Mr. Justice FIELD, and Mr. Justice HARLAN, dissent.