Easton v. Houston & T. C. Ry. Co. , 32 F. 893 ( 1887 )

Pardee, J.

According to the report of the special master, the petitioner, a section hand in the employment of the receivers, while operating a hand car on the railway, was injured through the negligence of another employe of the receivers then operating a locomotive on the same tracks. The duties of the petitioner as a section hand are not specifically set forth by the master, but the report does state that at the time of the injury complained of the petitioner, with other section hands and the section foreman, “indue course of employment, were traveling on a hand car over said section,” and the petitioner and his fellow-workmen were pumping the lever by which the car was propelled. There is no question but that the engineer in charge of the locomotive was in the lino of his duty. It follows that the duties of the two employed and paid by tiie same master brought them to work at the same place at the same time, so that the negligence of the one in doing his work injured the other in doing his work. Their separate services had an immediate common relation, to-wit, the use of the same tracks. Neither worked under the control or orders of the other.

The master says in his report “that under the federal authorities, as I construe them, the negligence of said engineer was not that of a fellow-servant with petitioner in that sense which would exonerate the defendants as the common master from liability therefor, but that his said negligence was, in legal contemplation, the negligence of the defendants. I am of the opinion that under the decisions of the appellate courts of Texas the defendants would not be liable to petitioner for the consequences of such negligence.”

It seems to he conceded as to the Texas decisions the master is correct.

The case here is one arising in Texas, and under the laws of Texas, and Texas law ought to control as to the defendants’ liability. There is no other law to govern it. As fedorai authorities sustaining the finding of the master, I have been referred to the case of Railroad v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, which holds that “a conductor of a railroad train, who has the right to command the movements of the train, and to control the persons employed upon it, represents the company while performing those duties, and does not bear the relation of fellow-sorvant to the engineer and other employes of the corporation on the train;” and to the later caso of Railroad Co. v. Herbert, 116 U. S. 648, 6 Sap. Ct. Rep. 590, whore it was held that a brakeman and the officer or agent of the company charged with the duty of keeping the cars in repair were not fellow-servants within the common-law rule. These cases were decided by a divided court. In the Case of Ross, the vice-principal doctrine is recognized, and in the Case of Herbert, the fellow-servant negligence rule is modified by limiting the application of the rule to employes in the same department of service, and under this latter authority I can well see how the master might conclude in this case that, as the section hand and the locomotive engineer are in separate departments, they are not fellow-servants assuming the risks of each other’s negligent acts. I am, however, of the opinion' that neither of these cases is applicable to the facts of the present case. Whatever may be as a general rule the duties Of the section hand, as distinguished from the duties of those railroad employes running trains and locomotives, at the time of ■complainant’s injury he was running a carón the road, and his duty and employment brought him in direct connection and relation with the employes running the special train causing the injury. Both were using the tracks of the railway at the same time, and so near to each other that the conduct of the one necessarily affected the comfort and safety of the other. At that time it seems to me they were fellow-servants in the same general department, governed by the same rules, and respectively charged with the ordinary risks of each other’s negligent acts.

The case of Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, by a unanimous court, seems to me to be directly in point. In that case a brakeman of one train, while attending a switch on one track in a railroad yard, was injured by the negligence of an engineer of another train on another track. They were held to be fellow-servants, within the rule, and the rule was illustrated as follows:

“They are employed and paid by the saíne master. The duties of the two bring them to work at the same place, at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate common object, — the moving of the trains, neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence against the corporation, their common master.”

This illustration fits this-pase as though made especially for it.

As the Texas authorities are conceded to be against the intervenor, it is not necessary to go further with this case. An order will be entered sustaining the defendants’ exceptions to the master’s report, and dismissing the intervention of Henry Martin, with costs.

Sabin, J., dissenting from the opinion of the circuit judge, the matter was allowed to lie over, to be heard by the circuit justice, or for the division to be certified, as counsel may elect.