OpenJurist

EASTON EASTON and others

V.

tI.

HOllSTON

&

T.

C. RY. CO.

893

HOUSTON & T. C. Ry. CO. and others,1 (MARTIN t Intervenor.)

(Oircuit Oourt, E. D. Texas. November, 1897.)
1. MASTER AND SERVANT-NEGLIGENCE-FELLOW-SERVANT. The petitioner was a section hand in the employ of a receiver of a railroad, and. while returning to a section-house on a hand-car, it was run into by a train in charge of an engineer in the employ of the receiver, and petitioner was injured. Held, that as the petitioner at the time of the injury was running a car on the track, he was brought into direct relations with the employes running the train, and they were fellow-servants. respectively charged with the ordinary risks of each other's negligent acts. 2 l. NEGLIGENCE-ACTION IN FEDERAL COURT-LAW GOVERNING. Petitioner sought to recover damages for injuries in the United States court. against a receiver of a railroad appointed by the court. Held, that the laws of the state where the action arose would govern as to defendant's liability. SABIN, J., dissents.

On Exceptions to Master's Report. Henry Martin was allowed to intervene in this case to claim damages from the receivers for injuries inflicted by a collision upon their railway. The receivers demur and deny, and the matter was referred to a master, who reported that he found that petitioner at the time of the accident was in the employ of the receivers as a day-laborer or section hand; that between 7 and 8 o'clock on the morning of the foui'teenth of July, 1886, the petitioner, with three other section hands and the master in charge of his section, in due course of employment, were traveling on a hand car over said section, returning to the section-house of said section from the city of Austin; that when about 200 yards distant from said sectionhouse, approaching it, the hand car upon which they were traveling collided with a locomotive running in the opposite direction, and on its way to said Austin, and then being operated by the employes of said receivers, likewise in due course of employment; that the point where said collision occurred was in a curve of said railway; that the view of the track between the hand car and the locomotive was obstructed by a growth of trees near the track, and upon the inner side of the curve, so that those upon the hand car could not see the approaching locomotive until it was within 400 or 480 feet of them, and those operating the locomotive could not see the hand car until within a distance of about 100· yards; that the section master saw the smoke-stack of the approaching locomotive when distant 400 or 480 feet from it, and when the hand car was moving down grade at a speed of between six and eight miles an hour, when he called to and signaled the hands who were operating the the car to stop; that the car was struck by the locomotive before it was
Reported by Joseph P. Hornor, Esq.· of the New Orleans bar. Upon the question of who are fellow-servants within the meaning of the rule exempting the master from liability for injuries resulting to an employe through the negligence of a co-servant, see Reddon V. Railroad Co., (Utah,) 15 Pac. Rep. 262, and note. Theleman V. Moeller, (Iowa,) 34 N. W. Rep. 765; Railroad Co. v. De Armond, (Tenn.) 5 S. W. Rep. 600.
1 I

'·894

REPORTEll.

stopped; that when the engineer on the locomotive first saw the car, ,:&bout300 feet distant, the locomoti'\re was running at' a speed ext:eeding 18 miles per hour; that the engineer at once applied the air-brakes, and bsed all means to stop the locomotive, but was unable to do so, but did reduce its speed before it came in contact with the car; that at the time of the collision the section master was sitting on front of the car, while petitioner and his fellow-workmen were "pumpiqg" the lever by which the car was propelled, petitioner and one other workman being at the rear end of the lever, his face in the direction in which the car was moving, the other two section hands being at the .forward end of the lever; that when the section master gave the aL'um the men upon the car, except petitioner, therefrom to save themselves; that almost immediately the collision occurred; so quickly that, as one. witness testifies, the tools carried upon the car were thrown in the air by the force of the collision about the time he reached the ground; that the whistle of the locomotive was several times sounded as it crossed highways within a mile of the section house, the last time about 400 yards from the point of collision; that the whistle was not sounded when the discovered, as the fireman from his position on the locomotive could not reach the whistle lever, and both hands of the engineer were engaged in applying the checking apparatus of the locomotive, but that the fireman rang the locomotive bell; that the wind was blowing from the car towards the locomotive, and those upon the car did not hear. the bell or any of the whistle alarms; that petitioner did not see the loc9motive, did not hear the call of the section master or see his signal to stop, did not see the men jump from the car,-in fact, did not see or become aware of any of the occurrences aforesaid; that when the car was struck, petitioner was thrown a distance of about 40 feet, and about as high as the smoke-stack of the locomotive. and did not "know anything" until he found himself lying several hours thereafter upon the gallery of the section-house aforesaid; that the engineer in charge of the locomotive which collided with the hand car as aforesaid was guilty of negligence in running the locomotive at the rate of speed aforesaid around said curve, in violation. of rule 12, limiting the speed in that place to six miles an hour, and that, but for such negligence, the accident by which petitioner received his injuries would not have occurred; and that, . under the federal authorities as the master construed them, the negligence of the 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; that .under the decisions of the appellate courts of Texas the defendants would not be liable to petitioner for the consequences of such negligence; that the negligence of the engineer in running his locomotive at a speed exceeding 18 miles an hour, under the circumstances hereinbefore was the proximate cause of petitioner's injuries, and that the faHure of the petitioner to see .the approaching locomotive, considering the position which he occupied upon the hand car and the short space of time which transpired between

EASTON V. HOUSTON & T. C. RY. CO.

895

the time when the locomotive could first be discovered and the moment when the collision occurred, is not sufficient to charge him with negligence efficiently or substantially contributing to his injuries, and that therefore petitioner is entitled to recover in this action, and that the said receivers are officially liable to him for the payment of such damages as may be adjudged him as compbnsation for his injuries. CampbeU Dunham, for intervenor. O. T. Holt. for receivers.
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, " in due 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 line of his duty. It follows that the duties of the two employed and paid by the 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 corltrol or orders of the other. . The master says in his report" that under the federal authorities, as I the negligence of said engineer was not that of a fellowservant 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 be 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 federal 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 fellowservant to the engineer and other employes of the corporation on the trainj" and to the later case of Railroad Ql. v. Herbert, 116 U. S. 648, 6 Sup. Ct. Rep. 590, where 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

696

FEDERAL BEl'ORTER.

were decided by a divided court. In the Case of Ross, the vice-principal doctrine is recognized, and in the (hse 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 car on 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 Sal,le rules,and respectively charged with the ordinary risks of each other's negligent acts. The case of Randall v. Railroad 00., 109 U. S. 478, 3 Sup. Ct. Rep. 822, 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 traeR: 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 same 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 case 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.

EASTON

11.

HQUSTON & T. C. Ry. CO.

1897 ,

others. l

EASTON

and others v.

HOUSTON &T. C. Ry. Co. and BAUGH'& Co., Intervenors.)

(Otrcuit Oourt, 1!J. D. Texas.

November 19, 1887.)

'CARRIERS-REDUCED RATES-LIMITATION OF TIME.

On .Tanuary 28, 1887, petitioner entered into a contract with the agent of a receiver of a railroad for shipment of goods from New York to Texas at cut freight rates. The steamer at New York refused to receive the goods, and February)2, 1887, the receiver guarantied the contract, and the goods were shipped March 1st. On March 4th the petitioner was informed thaf the time was had expired, and the former rates restored. Petitioner testified the agent of the receiver said to him as to limitation of time of was under the impres8ion he had mentioned it. Held, that the direct' testi mony of the petitioner and the conduct of the parties showed that no im· medIate shipment was contemplated.

On Exceptions to Master's Report. W. H. & Co. were allowed to intervene in this case, to
claim an amount paid by them for freight in excess of amount contracted for with the agent of the receivers, and the matter was referred to a special master, who reported as follows: I find that on the twenty-eighth of January, 1887, H. D. Patrick, local agent for the defendant receivers in the city of Austin, offered to W. H. Firebaugh & Co., the petitioners, who then were, and for some years 1100 been, merchants in said city, a special or "cut" rate of fifty cents per one hundred pounds upon freight from New York city to Austin if shipped in quantity of not less than twenty thousand pounds in one Shipment, and such offer was for freight for immediate shipment by "the Morgan" line: of steamers from New York. That immediately thereafter petitioners sent an order to their correspondents in New York, C. M. Biddle & Co., to ship to tllemat Austin, via the "Morgan" line of steamers, a quantity of freight consisting of tin, iron, and white lead. weighing more than twenty pounds" and in said order stated the special rate aforesaid. That un the tenth of the following month the said Biddle & Co. notified petitioners that the said Morgan line refused to receive the freight at the special rate named; that immediately, on .said tenth of February, petitioners consulted the said agent, Patrick, and stated to him the refusal of the Morgan line to receive the freight at the "cut" rate; that thereupon the said agent communicated the facts to the general freight agent of the defendants, who replied, guarantying topetitioners the special rate offered on the twenty-eighth of January, whereupon petitioners directed their New York correspondent by telegraph as follows: "Ship the goods as soon as possible; we have guaranty j" that on the first of March the said Biddle & Co. delivered the goods ordered on the twenty-eighth ,')f January, and referred to in the above quoted telegram, to the said MOl'gan line in New York city, consigned to petitioners at Austin, and received therefor eight bills of lading, the aggregate weight of the freights so delivered being twenty-six thousand and sixty-nine pounds. I find that the amount of freight charges for transportation of said freight from New York to Austin, at the rate of 50 cents pE'r hundred pounds, would be $130.35, and 95 cents insurance-$131.30j that, upon the arrival of the freight at Austin, about the twenty-first of March, the said agent of the receivers at that station demanded and received of petitioners as freight money on said shipment,

.

1 Reported

v.32F.no.14-57

by Joseph P. Hornor, Esq., of the New Orleans

.

bar.