than these, it seems to me very clear that the defendant cannot be ch3rged with negligence in leaving an unfenced ash heap adjoining its coal shaft. The demurrer will be sustained.
VAN AVERY 'V. UNION PAC.
(Oircuit Court, D. Colorado. May 7,1888.)
MASTER AND SERVANT-WHO ARE FELLOW-SERVANTS-LocOMOTIVE ENGniEERS.
Locomotive' engineers are fellow-servants, and in Colorado the company employing them is not liable for personal injuries resulting to one from the negligence of another in a collision.1 On demurrer to
At Law. Action for damages for personal injuries. the complaint. Browne.& Putnam, for plaintiff. TeUer & Oralwod, for defendant.
BREWER, J. In this case there is a demurrer to the complaint, and the question presented is really only this: Whether an engineer is a coemploye with another engineer in the sense of that rule of law which relieves a railroad. company from responsibility for the negligence of one co-employe. The old rule unquestionably was that all employes, even the superintendent and general manager, were simply co-employes of one master,. ,'fhat has been limited ,by repeated adjudications. Of course, this court is bound to follow ,the rulings of the supreme court of tbe United States, ,and in the case of Randall v. Raumad Co·· 109 U. S. 478, 3 Sup. Ct. Rep. 322, a question arose of this kind: The party jured was an engineer I the negligent party was a brakeman employed on another engine. and the court unanimously held that they were co-employes. There was no complete definition in that case, and yet, as giving certain rules which determined whether the party injured and the' party doing the injury were co-employes, the court, says this: · "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 one in doing the work may injure the other in doing his work. Theil'separate services have an immediate common object-the movillg of trains; neither works under the orders or control of the other; each by entering into a contract of services takes the risk of the negligence of the other in performing his services." There it was an engineer on one train and a brakeman employed on another. Here it is an engineer on one engine and an engineer on another. The duties of the two brought them to work at the same place at the same time; the negligence of the one might and did injure the
1 See, contlra Railroad Co. v. Ackley, (Ky.) 8 S. W. Rep. 691. As to who are fellowservants.,!. see Wolcott v. Studebaker. 84 Fed. Rep. 8; McMaster v. Railway Co., (Miss.) 4 South 59.
CANTER V. COLORADO UNITED MIN. CO.
other; theh separate services had an immediate common object-the moving of engines; neither worked under the orders or control of the other. Following that, in 112 U. S. 377, 5 Sup. Ct. Rep. 184, the famous. Ro88 Case, the supreme court, by five to four judges, held that a conductor having charge of a train was so far localized in his work, given such control over the train, that it was.fair to hold him as a viceprincipal, and not a co-employe with one on another train injured by his negligencej but they do not carry this exception to the old rule Leyond the conductorjand while, of course, no man can know what may be the decision of the court in subsequent cases, I am reliably informed that the decision was intentionally and narrowly limited to the case of a conductor. In Railroad 00. v. Herbert, 116 U. S. 642, 6 Sup. Ct. Rep. 590, a case that went up from Dakota, the court held that one who had charge of the. keeping of the cars and machinery in order was not a coemploye with one who was at work as a brakeman, on the ground that it was an independent duty of the railroad company to see that its IlllV chinery, its cars, were kept in ordet; and that that was not a common service with that of one who is employed in running trains. In 119 U. S. there are two cases,-one, Steam-Ship 00. v. Garey, p. 245,7 Sup. Ct. Rep. 1360, and the othe.r Railway 00. v. McLaughlin, p. 566,7 Sup. Ct. Rep. 1366. Neither of those cases adds anything to the question, for +lley were each affirmed by a divided court, so no principle of law was settled. .In one of them the negligence charged was of some agent of the company in failing to provide a suitable rope. That was the duty of one who had charge of the machinery of the company as contradistinguished from one who worked in using such implementsj and yet, by I)nly a divided court, the judgment below was affirmed. Theothercase '¥ent up from Iowa, and that was affirmed by a divided court; although in Iowa, by statute, they have abolished the rule in respect toco-employes, just as they have in Kansas. So the rule, as at present left by the supreme court,-and that, of course, guides me,-is that an engineer is a co-employe. It is a common service in a common object,--:'the moving of trains,-and, following the decisions of that court, I must sustain the demurrer to that complaint.
COLORADO UNITED MIN.
(Ozreuit Oourt, D; Oolorado.
May 4. 1888.)
MASTER AND SERVANT-NEGLIGENCE OF MASTER-PLEADING.
The complaint in an action for damages for personal injuries set out the employment of plaintiff by defendant, and charged II. breach of duty on. the employer's part in faillnlt t.o keep a certain ladder in proper repair, andtlla& one of the rounds of said ladder broke and dropped plaintiff. The allegation of negligence was to the effect that "it was the duty of defendant to keep said ladder in good, safe, and secure condition, so that those in its employment milrht securely ascend and descend the shaft UDon the same." Held. on de-