Northern Pacific Railroad v. Hambly

after stating the case, delivered the opinion of the court.

The third question certified to this court, and the only one it is necessary for us to consider, involves the inquiry whether the plaintiff Hambly and the conductor and engineer of the passenger train were, either Jiy the common law or the statute of Dakota, fellow-servants in such sense as- to exempt the defendant railway from liability.

There is probably no subject connected with the law of negligence which has given rise to more variety of opinion than that of fellow-service. The authorities are hopelessly divided upon the general subject as well as upon the question here involved. It is useless to attempt an analysis of the cases which have arisen in the courts of the several States, since they are wholly irreconcilable in principle, and too numerous even to justify citation. It may be said in general that, as between laborers employed upon a railroad track and the conductor or other employes of a moving train, the courts of Massachusetts, Rhode Island, New York, Indiana, Iowa, Michigan, North Carolina, Minnesota, Maine, Texas, California, Maryland, Pennsylvania, Arkansas, and Wisconsin hold the relation of fellow-servants to exist. Farwell v. Boston & Worcester Railroad, 4 Met. (Mass.) 49; Clifford v. Old Colony Railroad, 141 Mass. 564 ; Brodeur v. Valley Falls Co., 17 Atl. Rep. 54 ; Harvey v. New Yorh Central Railroad, 88 N. Y. 481 ; Gormley v. Ohio & Mississippi Railway, 72 Indiana, 31; Collins v. St. Paul & Sioux City Railroad, 30 Minnesota, 31; Pennsylvania Railroad v. Wachter, 60 Maryland, 395; Houston &c. Railway v. Rider, 62 Texas, 267; St.

In this court the cases involving the question of fellow-service have not been numerous nor, perhaps, altogether harmonious. The question first arose in the case of Randall v. Baltimore and Ohio Railroad Company, 109 U. S. 478 , in which a brakeman, working a switch for his train on one track in a railroad yard, was held to be a fellow-servant of an engineer of another train upon an adjacent, track, upon the theory that the two were employed and paid by the same master, and that their duties were such.as to bring them to work-at the same place at the same time, and their separate services had as a common object the moving of trains. It is difficult to see why, if the case under consideration is to be determined as one of general and not of local law, it does not fall directly within' the ruling of the Randall case. The services of a switchman in keeping a track clear for the passage of trains do not differ materially, so far- as actions founded upon the. negligence of train men áre concerned, from those of a laborer engaged in keeping the track in repair;

Directly in line with the case of Randall v. B. & O. Railroad Co. is that of the Quebec Steamship Co. v. Merchant, 133 U. S. 375 , in which the stewardess of a steamship belonging to a corporation brought suit to recover damages for personal injuries sustained by her by reason of a defective railing at a gangway, which gave way as she leaned against it, and precipitated her into the water. The railing had been recently removed and the gangway opened to take off some freight, and had not been properly replaced by the porter and carpenter of the ship whose duty it was to replace them. It was held that, as the porter and carpenter were fellow-servants with the stewardess, the corporation was not liable. Said Mr. Justice Blatchford: “ As the porter was confessedly in the same department with the stewardess, his negligence was that of a fellow-servant. The contention of the plaintiff is that, as the carpenter was in the deck department and the stewardess in the steward’s department, those were different departments in such a sense that the carpenter was not a fellow-servant with the stewardess. But we think that, on the evidence, both the porter and the carpenter were fellow-servants with the plaintiff. The carpenter had no authority over the plaintiff, nor had the porter. . . . There was nothing in the employment or service of the carpenter or the porter which made either of them any more the representative of the defendant than the employment and service of the stewardess made her such representative.” • The division of the crew into departments was treated as evidently for the convenience of administration upon the vessel, but having no effect upon the question of fellow-service. See also Baltimore & Ohio Railroad v. Andrews, 50 Fed. Rep. 728 .

The case of the Chicago, Milwaukee &c. Railway v. Ross, 112 U. S. 377 , is claimed to have laid down a different doctrine, and to be wholly inconsistent with the defence set up by the railroad in this case. This action was brought by thó engineer of a freight' train to recover damages occasioned, by the joint negligence of the conductor, of his own train and

It may be observed that quite a different question was raised in that case from the one involved here, in the fact that the liability of the company was placed upon a ground which has no application to the case under consideration, viz., that the person sustaining the injury was under the direct authority and control of the person by whose negligence it was caused. That it was not, however, intended in that case to lay down as a universal rule that the company is liable where the person injured is subordinate to the person causing the injury, is evident from the latest deliverance of this court in Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368 , in which an engineer and fireman were held to be, when engaged in their respective duties as such, fellow-servants of the railroad company, and the firemen precluded by principles of general law from recovering damages from the company for injuries caused by the negligence of the engineer.

Neither of these cases, however, is applicable here, since they involved the question of “subordination” of fellow-

We think this case .is indistinguishable in principle from Randall’s case, which was decided in 1883, and has been accepted as a sound exposition of the law for over ten years ; and that, unless we are prepared to overrule that case, the third question certified must be answered in the affirmative. The authorities in favor of the proposition there laid down are simply overwhelming.

We have thus far treated this case-as determinable by the general and not by the local law, as was held to be- proper both in the Ross case and in the case of Baugh. In.so holding, however, the court had in view only the law of the respective States as expounded by their highest courts. Wherever the subject is regulated by statute, of course the statute is applied by the Federal courts pursuant to Revised Statutes, . section 241, as a “ law ” of the State.

By section 3753, Compiled Laws of Dakota Territory, in one of the courts of which this case was originally com

The third question certified must be answered. in the affirmative.

The Chief Justice, Me. Justice Field, and Ms. Justice Hablan dissented.