MISS01:jRI PAC, RY, CO. V. TEXAS & P. RY. CO. ,
Mrnmunicate fire to the intervenor's premises; but there is no evidence of a.nd I take the master's mean that the fire was communicated by the engine, and that the evidence does not exculpate the agents of 't he receivers from negligence, If the receivers had tlhown that the engine was supplied with the best appliances for the prevention' ofsparksand the spread of fire, and' that at the time, or im,me.:. after, appliq.llces were ill it,wQuld be difficult to hold: them liable in: this case.· As the proofis, however, I am constrained to confirm the special master's report. '" be ovar'ruled, and the report be connrlH-ed·
.a', ,', '
MIsSOURI PAC. Ry. CO.
& P. Ry. Co.
(Oircuit Oourt;E. -D. LouiBiana.
:MASTER AND SERVANT-NEGLIGENCE-FELLOW·SERVANT.
That the common master is not liable to a servant for injuries caused by the , neglig.ence of a is a rule recognized in the United States courts, '(H9'itgkiy; Raiffl!ulI 00., lOO'Uo' S; a brakeman of a railroad train cannm reoover of the company fQr injuries lWouBed by . · ., ,. I
; Master's Report.' , ' .' " praying for compensation for , Petiti911 orE. 'M. persdrid injuries. JoTvn H. Kennard, Ji'., 'for petitioner. W. and S. S. PrentiSs, forreceivere. . _.. ,it
PAIiDEE, J. The evidence in the case shows that, the petiti<:mer,a brakeman, was. inj uredby the negligence of theengineer,hrs oW'll negligence contributing thereto; while they were both employed 011 the same freight 'train. 'The master's report is practically to the same' purPGrt, but the 'llUiii:ltarseems to find that the petitioner?snegligencewas n'litiga:ted to slight negligence for which he was not responsible,because of his reason.; able faith that the engineer would not he guilty of any negligence. The evidence shows clearly that, but for the ,primary negligence of the petitioner, he would not have been inj ured ,although the engineer bad started his tntib as he did without proper signal. ItaIso seems clear in this case that the" brakeman and the engineerwere feliow.se1"Vants; and, as the general mIa' exempting the common master from liabilityto a servant for injuries,ca,tised by the negligence of a fellow-servant is recognized· by the courtsofthe United State'5;(see,Houghv. Railway Co., 100 U. 8. ,213,) the notreco-irer from 'the receivers in this case;, unless in sorne' ws'y they ron he shown to be in fault. A ca.refulexamination of the evidential and of the mnster's report, shows no fault of commission noromissioil on the part of the teceivers. An order Will be entered sustaihing the exceptions to the special. master's reporti and dismissing the petition of saidE. M. Pierpont.:
WINSTON and others.
«(Jirouit Oowrt, n.Hinneaota. June Term, 1887.)
1. MASTERANDSERVANT-LU.DILITY OF MASTER-SERVANT'S. KNOWLEDGE OF
DANGER-;-ORDERS OF FOREMAN.
Plaintiff, one' of a of workmen employed by contractors. while exca· vatinga tunnel,was mjured by an earth slide produced by a crack in the soil from blasting, and sued his employers for damages. Held, denying his mo· tion for a new trial, that,as thedanger was apparent to plaintiff personally, he conld not recover, though the foreman of the gang, also knowing the danger, ordered plaintiff to work, without notifying him thereof.
SAME-FELLOW,SERVA1ilT-FOREMAN OF GANG.
The foreman of a gang of laborers, employed by a contractor, is a fellow· servant of one of the gang.
At Law. Henry Johrui and H. S. Williams, for plaintiff. Kitchel, Cohen & Shaw; for defendants.
J. In this casa·a motionfo'r a new trial is made by plaintiff. Defendanls were contractors excavating a tunnel through a hill in the northern part of the city of St. Paul, in this district. It waS a face cut. One side of the hill was a little higher than the other,where the excavationwas made. It appeared.from the testimony that the contractor worked night and day gangs. The plaintiff was an employe in the night gang, under a foreman, and brings this suit to recover damages from a personal injury SUffered, .as charged from the negligence of the defendants. This cut was through a hill which was about 30 feet in height. It waslworked by having a platform raised some 15 feet, so that the men could work upon the platform, and also under it, in making the excavation. ,The sides of the cut were sloped, and the evidence shows the usual slope was given to them. In this face cut, when the day gang weht off, the night gang came on, and it was while the night gang were at work that the injury occurred. Blasts had been made on account of the character of the soil. 'A crack was formed, shortly after a blast, in the. afternoon of the day before. the accident, and some time during the morning there was a. slide of earth, llnd plaintiff was injured. It is claimed that the foreman of the gang saw the crack, llnd did not inform the men of the fact that it was a dangerous place, and plaintiff was ordered to go to work there. The 'evidence oiall the parties, with the exception oione who testified in regard to the character of the excavation, goes :directly to the point that the; foreman saw the (Jrack, and that they also sBwit. Anderson testifies; 'thllthe did Dot see it, it is obvious any that, .if there was any danger,it Wll$ as apparent olleelse. There is another reason why the phtintiff cannot recover in this case, and that is, the foreman,' if he was at fault, was a co-servant with Anderson. An effort is made by the plaintiff to bring this case within the decision of the United States supreme court in Railway Co.