f01'm.JcI>;anypartof theevicililDce submttted'tb.'theiri consideration. As men)"OfJotdinaryintelligence,:they knbwn that the reception of ,intheother case was not part of thetlfialiri which they were'sitting iJ,sjurors, but was a matter wholly asidethellefrom·. The' fact that they obtained knowledge 'of the verdic t in the i$totIer, Ca8e by hearing it read in open court cannot be assumed toba"e affected their judgment in any degree other or different from what would have been the effect, if they had obtained knowledge of it by reading the neWSpapers, or by hearing the record of. the court proceeditigs rE'adin the usual open and public mannerjand certainly it would ,not be claimed that, because the jury learned in either of these waY$ rendition. of the verdict in the Stoner Case, they were disqUlllifi(ld from sitting nSIl jury in the case at bar. SevemVassignments of error are based upon the action of the trial court'inpermitting witnesses to be called in rebuttal whose testimony was inil!lllpport oithat given. in chief, but this was a matter so clearly within the'dillcretion of the trial court that coum:el did not press the point in oml argument, and we need only say that no error appears therein. The case was fairly sent to the jury on the question of negligence on part oitha defendant company, and of contributory negligence in the running:Of.the. train of which the plaintiff was conductor,' and nothing is shown 'impeaching the correctness of the verdict under the evidence, whence it follows that ofright the judgment rendered should be affirmed, at the ,Qf plaintitf in ,and it is so ordered. Affirmed.
R. Co. '/).
(C(rcuit Court qf .Appeal., Eitjhth Circuit. June 20,1892.)
The an extra gang of track repairers, whose sole duty it was to super· . vise'the worli:'oftracK repairiiIg over. some lSor 20 miles of the roadbed of a railr:<)aq, company;tolliire the)I\6p 'necessary to work. and to direct the operations of the force so employed, is a vice principal, for whose negligence the railroad company'iB liable, whJre 'a workman in skid gang was injured while under bis orders. RtLilwllY Co; v. 5 Sup. Ct. Rep. It>4, 112 U. S. 877, construed; WOOd. y. Fe4. !l2, 4 U·. l:!.App. 49, followed.
I. FELLOW IN Fti:DiniAL COURTS.: 'Aworkmat\, w\\ileactinguilder the orders O'I'the foreman of a gang of track re.}vl\B ,in the state ilf Wisconsin. 1:leld, ill,accor!lunce with the federal adjUdications, the question involving the construction of no statute of the state; that, the '!f'Oreman WMnot, a fellow servant, although' the rule of law was .. ;, ' : : . '
In'Rrror to the 'Circuit Court of the United States, for the District of Minnesota. l:
NOR-THERN I'AC. R.CO. ll. I'ETERSON.
Action by Samuel Peterson against the NorthernPacific Railroad Company to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant brings error. ' Affirmed. Statem!3nt by THAYER, Dist).'ipt Judge: The case disclosed by the record is as follows: The defendant in error, who was plaintiff in the lower court, recovered a judgment in the 8um of $2,500 for injuries sustained while in the service of the Northern Pacific Railroad Company,in consequence of being thrown from a hand car on which he At the time of the accidentthe 'plaintiff had been working for about one month as an ordinary laborer, with an extra gang of track repairers on the defendant company's road, between Little Canada and Old Superior, in the state of Wisconsin: The, repairs extended over tbreesections, or about 18 or 20 miles then in of roadbed; and were in charge ,of a foreman by the name of Henry Holverson.. The work being done consisted in putting in new ties where needed, lInd in lining up and the track. As ,in charge of the work Holverson had full authority, as occasion requir!3d, both to hire and discharge the men composing the extra gang of track repairers. The force at the,time of the accident, and usually, consisted of 13 persons besides the foreman, and it appears to have worked under the exdusive supervision and control of Holverson, whosqpplied the men with tools and materials, and directed where, when; and how all work undertaken by the extra gang should be done. Besides the extra gang of track repairers, there were three other regular crews of section men at work on the three sections over which Holverson's jurisdiction extended, and there is some testimony in the record tending to show that the regular crews were also, to some extent, subject to Holverson's orders. The men composing the extra gang were transported pay, with their tools and ,equipments, to and from their place of labor by two hand cars furnished by the defendant company. Holverson always accompanied and had ·command of the party on these trips, and usually took a position on the front car, so as to look out for obstructions ahead and to give orders when to stop. On one of these trips, as the party were returning toSuperior their day's labor, Holverson set the brake on the front hand .car as it was rounding a sharp curve in a cnt,to avoid overtaking ,a woman who appeared to him to be on a trestle some 60 or 70 Yards Jthead of the hand car. The two hand cars were running at tht' time at a rate of speed. variously estimated at from 7 to 15 miles per hour, and were from 45 to 60 feet apart. A collision occurred almost instantaneously, in consequence of the sudden stoppage of the front hand car, by which that car was thrown violently from the track, and the plaintiff, who was riding thereon, was seriously injured. On the trial in the cir-cuit court the plaintiff below contended, and the jury undoubtedly found, that the collision was due to the culpable negligence of Holver,:son in stopping the front hand car top suddenly, without giving any warning to the crew of the rearear. The defendant that the .accident should be attributed to the fault of the crew on the rear car, in crunning too elos6to the front car, in violation of Holverson's, express or-
ders; but the jury eVidently discarded'that view as not warranted by the evidence. Tilden R. Selme8, for plaintiff'in error.
The question, in this case is. will this COUl't adopt the d:>ctrine that the mere matter of,su'Oortlination determines the liability of the employer; that whenever one employe is' subject to the orders of another employe the negligence of the Ja'tter is the negligence ·of the employer? , Where, it is once admitted that there are some servants who are fellowservants. whose negligence the employer is not responsible to another servant while in the line of their employment. then the only logical limita'tionsare the ones adopted by New York, MassacbusetLs, and many other states, viz., th,at the master is responsible to his servant for the negligence of another servant in the performance of all such duties, and only such as the mas.ter is required to see are perfo;med. The growth of business and theenla.],"gement of enterprises has ell:tended the master's duties, but they are /lIlt'educible to this rulE!. F:arwell v. R'ailroad Co., 4 Metc. (Mass.) 49. . .t\.fter all the courts of tllis conntry had admitted that there was a doctrine of :nonliability on the master's part' for the act of a fellow servant, they found it'impossible to logically make different limitations than the one above referred to. For this reason 'many of the decisions announcing the superior, servant doctl,'lJi$ are an arffitmentum ad homirtet,n, or a mere statement that tile superi!>r wall not afeUow servant; but. wherever the courts to extepdtlle of the doctrine with an argument, it on the logic of the Farwelt'Case, and will, upon an examination, be found to be basedon the failure of. the servant to use care in supplying 'tools 01' IIppliances. · Some cases havebeldthat the original rule was based on public policy, that public policy now requires a different rule, and therefore thefeUoW' servant dpctrine ;8honld.b,edone away with,and in support of paye abolished the rule by act of the legislatur!1. If pUblic of a Of law lished by a long line of decisions, itis the duty of the legisiature to change it, and not the court; and tpe fact that some states have modified or abolished it, by statute is' rather an argument againlit the policy of a court changing the rule than in favor ofIt. The result which such action on the part of the cQurt willpl100uce is apparent in the present case. The decisions of Wisconsin. where this action arose, follow the JdRssachusetts doctrlne, and Holverson, would there be helq to' a fellow se;'vant with plaintiff. The legislature of in 1889, thinking that the common-law rule should be changed, passed a statute (see Sftp1'a) modifying the rule by making a railroad company reiiponsible to an employe for damages caused by the negligence of any train dispatcher, telegraph operator, superintendent, yardmaster,conductor,qr engineer, or of any other who has charge 01' cflntrol of any stationary signal, target, point, block, or switch. However, under the decisions of Wisconsin. the defendant would lltill not be liable to the plaintiff for the negligence of Holverson; but the plaintiff comes into this court, and asks that the. laws of Wisconsin be amended so as to give him a cause of action. Thelltatute may not be exclusive, or this court bound by the'decisions of Wisconsinibut" if the doctrine of nonliabllity is to be modipolicy, it is suomitted the expression of the legfied·on Lheground of of Wis'consin as to,:what that public policy in Wisconsin should be is to consideration. ., · . Rross Case 00. v. Ross, 112 U. S. 377,5 Sup. Ct. Rep. 184) seem'S to be the foundation of most of the 'efforts to bl'eak down the old-establisheddoctrine on this question, as predicted it would be in the dissenting opinion. Ithas been cited as supporting the superior servant doctrine, and
NORTHERN PAC. R. CO. V. PETERSON.
as often denied. It did, however. hold that. under the facts established in that case. the conductor was the vice principal. and not a fellow servant of the engineer on a train: but that was all that. was decided, and the court expressly limit its decision to the case before it, and decline to lay down the doctri ne contended for by defendant in error in the present case. Those whose tendencies were in favor of the superior servant doctrine have, however. held that the decision sustained that principle. The duties of the conductor, as proved in that case. were the same as those of the train dispatcher or superintendent, and were duties that the master owell to the servant, (see Lewis v. Seifert. 116 Pa. St. 628,11 At!. Rep. 514;) but the duties of the conductor, as proved therein. were not such as his duties really are. and to that fact alone has been due much of the dissension this decision has caused. In Coyne v. Railroad Co.· 133 U. S. 370, 10 Sup. Ct. Rep. 382. the question of superior sertant doctrine was one of the points in the case. but the court decided it on another. and in" regard to that say: "Theseviews being conclusi ve in favor of defendant. it is unnecessary to consider the broader grounds [that the foreman was a fellow servant] urged in support of the judgment below1" This would tend to show that the supreme court did not consider that it had already committed itself to the superior servant doctrine by the Ross Case. The Ross Case has been cited, interpreted. and applied in the following federal decisions: Quinn v. Lighterage Co., 23 Fed. Rep. 363; Garrahy v. Railroad Co., 25 Fed. Rep. 258: Howard v. Railway Co., 26 Fed. Rep. 837: Anderson v. Winston. 31 Fed. Rep. 528: Van WickIe v. Railway Co., 32 }'ed. Hep. 278; Eflston v. Railway Co., Id. 893: Van Avery v. Railroad Co., 35 Fed. Rep. 40; Heckman v. Mackey, Id. 353: Ha1'dy v. Rail1'oad Co., 36 Fed. Rep. 657: The Egyptian Monarch, Id. 773; Borgman v. Railway Co., 41 Fed. Rep. 667; Ragsdale v.Railroad Co., 42 Fed. Rep. 383: Rail1'oad Co. v. Wilson, (8th Circuit,) 48 Fed. Rep. 61: v. Lindvall, rd. 73. A few of the foregoing decisions support the superior servant doctrine, but the majority not only oppose it. but assert that the Ross Case does not in any sense either approve or support it. The case of Easton v.Railway Co., 81J,pra, holds that when an accident occurs in Texas the law of fellow servants, as decided by the Texas 8tate courts, will control in the federal court. See, also, B01'gman v. Railway Co., supra. Also, in a late case in Ohio, (Alexander v. Pennsylvania Co., 30 N. E. Rep. 69,) the supreme court of that state held that when the accident occurred in Pennsylvania, the man having been employed and working in Pennsylvania, they would apply the laws of Pennsylvania to the case. And the negligence complained of having been the negligence ofa foreman for whose negligence in Ohio the defendant would have been liable, but, under the decisions of Pennsylvania the defendant not being liable, the Ohio court Donsuited the plaintiff. Railroad 00. v. Wilson, above, and Woods v. Lindvall, have not necessarily committed this court to the superior servant doctrine. It was not necessary in either of those decisions for the court to so hold, nor did it. In the first case the track was improperly laid, owing to the negligence of the roadmaster, and this defect in the track caused the accident. In the second case the man in charge of building a trestle was negligent in the general plan of the work. aud exposed the plaintiff to a danger that he did not know of and could not understand. In both cases the man whose negligence caused the accident had general charge of the mode and manner of doing the work, and the method and manner used was in jtself defective. The court further held that in both cases the authority of the man in charge was of so general and extended a character that in that management and control he was representing the company, within the decision in the Ross Case, and that it is as
Tules,al1dteglilations for the coridoct()f; hl.'bosi:na,slt 'as/to. 'fumish ,other. safe. illstrumen-: the workv'! I" , . ':
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d4se, Ilpd'the only one which
we deem qf .facts' disclosed by
the ,};tolverson; the foreman, were fellow servantB;, The Issue :ooncerning:tbe alleged, negligence of the crew' ou'tthe was fairly' presented by the charge of the jur,riliave'9.etetmined thatissu.eadvel'sely to the ;the Jt .may be. that under the rule which prevails lriWisr,onsin, where the accident' and in some other }fiell.1 be ,regarded a's,fellow the, difference in their rank; and prior to the decia-ionihRa'ilway ,(Jo;<v,;"R088, 112U. S. 377,5 .Sup. Ct. Rep_, would pi'ob.il.bly the conclusion reached .by a that respect what seems to hl:live,been the" haJ9rethatcase was decided. But as the question that we hllVe to decideip. the case at har is one of eral!law J which does not ,involve any cohstr\1ction or interpretation of ,the statutes of the state ofWisconail1, we'inust determine it in accord· ancewlth federal 1>rinciplesenunciated in the R088 Ca8e, we 'Understand and That case has someiUmea, regard;ecf .l;rto!e than '1/ hat has .been termed ::the4oettme other it has been ':oolltended,witbgl'eatplausibility,and::?ig-or, that the case merely decideS that: a person isa\l'lCeprincipal<ltllywhenbe has control of an departmentl,lfth'e master's'service, and that within the ipg of the a train has charge of a depart. nJe··i,andi$:nQt. life110W j;lerV\IDt of Qtheremployes of the master en. in operating the same train. lIoward v. Railwq,y Co,) 26 Fed. Rep. 837. :But :we think,that it 'is hardly permissible to place such an arbitrary uPQn:the thatdecisipn, in view of the reasoning on the caserasts, and the ioits. support. Speaking fo.r the majority of the court, Ml;,. J uf:ltice FIELP uses the followirig language: is, in our 'a. clear to be made in their relation servants'of a corporation exercising no O:verothers witb them. in the .same employment, llnd _gents of thecorporationelothed. with 'the, control andmanllgement of a dis'tiltilt'oepartment. in; which their duty is 'entirely that of direction and superintendence. Acond\lctor. having the entire control and malll&gement of.a raHwaytriiin. occupies a''tery different position from the brakeman, the
porters. and other, .Hei1l infll,ctand .sllould be tr,eatEld as thepersonal corporation for Whose negligenllQ it is responsible to subordinate servants." . .
This we to. be an explicit statement of a general rule by which to determiM in any case whether a person occupies the relation of a vice principal ora fellow servant. And the test applicable to the determillatiohof that question is not whether the person has charge of an important department of the master'sservice, but whether his dutieS,are exclusively direction, and control over R. work undertaken by the master,and over subordinate emplnyes in such work whose duty it is to obey I s.nd whether he hs;s been vested·by the common master with such power of supervision and management.. The other view,thatthe question whether a personiisa vice' principal is to be determined solely, by the magnitude or impor:.. tance of the work that may have been committed to his charge, isopeh to the objection that it f\]rnishes no practical or certain test by whic·,· to determine in a given case whf'ther an employe has been vested with such departmental control, or has been "so lifted up in the grade and extent of his duties" as to constitute him theperson/lJ representative of the master. That this wO\:lld frequently be a difficult andflmbarrassingquestion to .decide, and that courts would differ widely in their views, if the doctrine of departmental control was· adopted, .is well illustrated by the case of Borgman v. Railway Co') 41 Fed. Rep. 667,. 669. We are of the opinion, therefore, t!:;lat the nature and character of the respective duties devolved upon and performed by persons in the same common employment should in each determine whether they are or are not fellow servants, and that such relation should not be deemed to exist betweAn two employes where the function of one is to exercise supervision and control over some work undertaken by the master which requires supervision, and over subordinate servants engaged in that work) and where the other is not vested by the master with any such power of direction or management. The views which we have thus expressed concerning the proper interpretation of the ROB8 Que were substantially stated by this court in the recent case of Woods v. LindvaU, 4 U. S. App. 49, and 48 'Fed. Rep. 62. We believe that they are also in accord with the view generally entertained by other courts, and by the profession, concerning the scope and effect of that decision. Shear. & R. Neg. (4th Ed.) § 226. On the trial in the circuit court there was no substantial controversy as to the relative functions of Peterflon and Holverson. It was practically conceded that Holverson's sole duty was to supervise the work of track repairing over some 18 or 20 miles of the defendant's road, to hire the men necessary to do that work, and to direct the operations of the force so employed. He controlled. the force engaged in that work as fully and effectually as any other agent or officer of the defendant company could have done. On the other hand, Peterson was an ordinary laborer, who had been employed by the foreman as a member of the extra gang of track repairers. . .
.·Atthij·co'O.Clusion of :the! testimony· the trial court chfLrgeq·the jury, relatibI1; existing between the two employes, in the follovying language: afellow servant of the plaintiff or not depends enl:tbe nlation he sustained to the defendant company; and the court instiqct.s you:tbat if you tlndfrom the evidence that Holverson was a 'foreman for thedeff,lndant company, and that as such foreman he ;chargf,l and superintendence of putting in ties and lining and keeping In' oftha road; that he hired the gang of hand/:j', about thirteen in nmnl:,ier, to do this work for the company, and had tMi!:dltisive'charge and management of said gang of hands in all with 'their employment, and was invested with authority to liire:and discharge the hands to do said work at his discretion; and tha,t p!AUntiff one of thf,lgang of hands so hired by Holverson; and that the plainti1t.l'aS. !',ubject to the authority of Holverson in all matters relating to his dutiesa!,alaboTer,-tllen the plaintiff and Holverson were not fellow servants .10 the sense that· wlll preclude the plai ntiff' from recovering from thel'ailroad;OO1npany damages for any injUry he may have sustained through the negligence of Holverson, acting in the course of his employment as such forema·n." In view of what has already been said, we are unable to hold that the trial court· erred in giving the fbregoing instruction. Weare equally unable to say that the cOn'rt erred in refusing to direct the jury as a matter of law that Holversbu and Peterson were in fact fellow servants. As these are the only substantial errors assigned, the judgment of the circuit court must be and it is hereby affirmed.
WithreSpeot tb the
fl. SOUTHERN PAC.
(C£rcuit Court of .A1,lpeal.9, Fifth O'rcuU.)
an for wrongfulde&tlJ. occurring in another state, the statute of limitations of the forum governs, unless the statute giving the right of action in sucb ,other state itself prescribes alimitation.
In Errorto'the Circuit Court of the United States for the Western District of Texas. Actioll. by Refugio and Jose Munos, minors, by their next friend, Juan Ochoa, against (he Southern Pacific Company. Judgment for l;iefendant on dElI:nurrer to plaintiffs' petition. Plaintiffs bring error. Affirmed. . Millard Patltmwn, C. N. Buckler, J. A. Buckler, and John Mitchell, for plaintiffs in error. .. Henry J. Lep1YJl and Joseph Paxton Blq,ir, for defendant in error. and MCCORMICK, Circui$ Before LocKE, Pistrict Judge, and Judges. '. , ' .
PARDEE, Circuit Judge. This suit was commenced March 20, 1891, to recover damages for the death of a parent, alleged to have been caused