Northern Pacific Railway Co. v. Dixon , 24 S. Ct. 683 ( 1904 )

Me. Justice Beewee,

after making the foregoing state ment, delivered the opinion of the court.

A servant is entitled to recover damages for injuries suffered through the personal fault or misconduct of his employer, but when the employer has been personally free from blame and the injury results from the fault or misconduct of a fellow servant it would seem reasonable that the wrongdoer should be alone responsible, and that one who is. innocent should not be called upon to pay damages. And such is the. general rule. But where the employer is a railroad or other corporation having a large number of employes, sometimes engaged in different departments of service, certain limitations or qualifications of this general rule have been prescribed. Perhaps no question has been more frequently considered by the courts than that of fellow servant, and none attended with more varied suggestions and attempted qualifications. It has been discussed so often that any extended discussion in the present case is unnecessary, and it is sufficient to state the principal suggestions and consider their applicability to the case at bar.

In a recent case in this court, New England Railroad Company v. Conroy, 175 U. S. 323, it was said (p.,328):

“We have no hesitation in holding, both upon principle and authority, that the employer is not liable for an injury to one employé occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work; that it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end.”

Tested by this, it is obvious that the local operator-was a fellow servant with the fireman. They were “engaged in the same general undertaking,” the movement of trains. They were called upon “to perform duties tending to accomplish the same general purposes,” and “the services of each in his particular sphere or department were directed to the accomplishment of the same general end.” The fireman who shovels coal into the fire-box of the engine is not doing precisely the same work as the engineer, neither is the conductor who signals to the engineer to start or do stop, nor the operator who delivers from the telegraph office at the station to the engineer orders to move, and who reports the coming and the going of trains, arid yet they are all working each in his particular sphere towards the accomplishment of this one result, the ■movement of trains.

Another qualification suggested is where the one guilty of the- negligence has such general • control and occupies such relation to the work that he in effect takes the place of the employer — becomes a vice principal, or alter ego, as he is sometimes called. If an employer, whether an individual or ■a corporation, giving no personal attention to the work, places it in the entire control of another, such person may be not improperly regarded as the principal and his negligence that 'of the principal. That thought'has in some cases been carried further, .and’ when it appeared that the work in which the employer was engaged was divided into separate and distinct departments, the one in charge of-each of those'departments has been regarded as also a vice principal. In Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368, 383, we said:

“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- coritrol therein, are properly to be considered, with respect to employes’ 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 Róss 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.”

So also in Northern Pacific Railroad v. Peterson, 162 U. S. 346, it was held that the foreman of a gang of laborers employed in putting in ties and keeping in repair a part of the road, although he had the power to hire or discharge any laborer and exclusive control and management in all matters connected with their work, was a fellow servant with the men .in the gang, and on page 355 the rule was thus stated:

“The rule is that,in order to form an exception to the general law of non-liability^the person.whose neglect caused the injury must be ‘one who was clothed with the control and management of a distinct department, and not a mere separate piece of work in one of the branches of service in a.department.’ This distinction is a plain one, and not subject to any great embarrassment in determining the fact in any particular .■case.”

Obviously there is nothing in this qualification which has application here. The negligent person was a local operator' and station agent, and in no reasonable sense of the term a vic¿ principal or in charge of any department.

Another suggestion is, that the doctrine of fellow servant does not apply where the servant injured and the servant' guilty of the negligence are engaged in separate departments of service. In Northern Pacific Railroad v. Hambly, 154 U. S. 349, a common laborer was employed under the direction of a section.boss in building a culvert on the line of defendants railroad, and while so employed was struck and injured by a moving passenger train, the. injury resulting solely through the misconduct and negligence of the conductor- and engineer of the train. It was held' that they were fellow servants, and • in respect to this suggestion it was said (p. 357) :

“As a laborer upon a railroad track, either in switching trains or repairing the track, is constantly exposed to the danger of passing trains, and bound to look out for them, any negligence' in the management of such trains is a risk which may or should be contemplated by him in entering upon the service of the company. This is probably the most satisfactory test of liability. If the departments of the two servants are so far separated from each other that the possibility of coming in contact, and hence of incurring danger from the negligent performance of the duties of such other department, could not be said to be within the contemplation of the person injured, the doctrine of fellow service should not apply.”

Applying this to the case before us, manifestly the work of, the fireman and the operator brought the parties closely together in the matter of the movement of the trains. Dixon knew that any negligence on the part of the operator might result in injury to him, and must have contemplated such possibility when he entered the service of the company.

It is urged that "it is as much the duty of the company to give correct orders for the running of its trains so they would not collide as it was to see that their servants had reasonably safe tools and machinery with which to work, and a reasonably safe place in which to work,” and hence, that one who is employed in securing .the .correct orders for the movement-, of trains is doing the personal work of the employer, and not to be regarded as a fellow servant of those engaged in operating and running the trains. But the master does not guarantee the safety of place or of machinery. His obligation is only to use reasonable care and diligence to secure such safety. Here the company had adopted reasonable rules for the operation of all its trains. No imputation is made of a want of competency in either the train dispatcher or the telegraph operator. So far as appears, they were competent and proper persons for the work in which they were employed. A momentary act of negligence is charged against the telegraph operator. No reasonable amount of care and supervision which the master had taken beforehand would have guarded against such unexpected and temporary act of negligence. Before an employer should be .held responsible in-' damages it.should appear that in some way, by the exercise of reasonable care and prudence, he could have avoided the injury. He cannot be personally present everywhere and at all times, and. in the nature of things cannot guard against every temporary act of negligence by one of his employés. As said in Whittaker v. Bent, 167 Massachusetts, 588, 589, by Mr. Justice Holmes, then a member of the Supreme Court, of Massachusetts:

“The absolute obligation of an employer to see that due care is used to provide safe appliances for his workmen is not extended to all the passing risks which arise from short-lived causes. McCann v. Kennedy, ante, p. 23. See also Johnson v. Boston Towboat Co., 135 Massachusetts, 209; Moynihan v. Hills Co., 146 Massachusetts, 586, 592, 593; Bjbjian v. Woonsocket Rubber Co., 164 Massachusetts, 214, 219.”

Without discussing more at length the various forms and phases of the question of fellow servants, or the many suggestions which have been made to qualify or limit the general doctrine, we answer the questions presented as follows:

First. The telegraph operator was, under the circumstances described, a fellow servant of the fireman.

Second. The negligence of the telegraph operator was the negligence of a fellow servant of the fireman, the risk of which the latter assumed.