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    NEW ENGLAND R. CO. v. CONROY, 175 U.S. 323 (1899)

    U.S. Supreme Court

    NEW ENGLAND R. CO. v. CONROY, 175 U.S. 323 (1899)

    175 U.S. 323

    No. 42.

    Argued April 3, 4, 1899.
    Decided December 4, 1899.

    [175 U.S. 323, 324]   This was an action against a railroad corporation by a brakeman in its employ to recover damages for a personal injury caused by the negligence of the conductor of one of its trains.

    The facts in this case, as stated in the certificate of the circuit court of appeals, were as follows:

    The jury were instructed: 'The conductor of the train, under the rules laid down by the rules of the Supreme Court of the United States, is in a peculiar and special condition. The conductor of the train, as I understand the theory of the rule of the Supreme Court of the United States, is, in a certain sense, between stations, at least, is in a certain sense like the master of a ship on a voyage; he is beyond the reach of orders when running his train between stations; and there- [175 U.S. 323, 326]   fore as a matter of necessity, as a matter of public policy, I suppose, he must be held to stand in the place of the corporation itself. . . . If you find in this particular case, from the evidence in the case and such common knowledge as jurymen are entitled to use, that by the rules of this road . . . the conductor gave directions to the people who worked on the train, gave directions to start the train, gave directions to stop the train, gave directions as to the location and position of the different men on the train, and also had the general management of the train and control over it when running between stations, then I say to you, gentlemen, that he for this case represents the company, and if injuries resulted from his negligent acts the company is responsible.'

    The jury returned a verdict for the plaintiff, and assessed damages in the sum of $4,250.

    The defendant brought the case by writ of error to the United States circuit court of appeals for the first circuit.

    And, upon consideration of the case, after full argument, the judges of that court desired the instructions of the Supreme Court upon the following questions of law arising on the facts as before stated:

    1st. Whether the negligence of the conductor was the negligence of a fellow servant of the deceased brakeman?

    2d. Whether the negligence of the conductor was the negligence of its vice or substituted principal or representative, for which the corporation is responsible?

    Mr. Frank A. Farnham for plaintiff in error.

    Mr. James E. Cotter for defendant in error.

    Mr. Justice Shiras delivered the opinion of the court:

    It may be doubted whether the questions of law presented to us are really raised by the facts as certified. No facts are stated from which the jury might have found that, at the [175 U.S. 323, 327]   time and place of the accident, there was any special reason why the brakemen should have been ordered by the conductor to take their places at the brakes, and therefore it is by no means evident that there was any dereliction of duty on the part of the conductor.

    Nor is it clear that the negligence of the conductor, if negligence it was, in permitting the brakemen to ride in the caboose, was the proximate cause of Gregory's injuries. When the train parted the engineer had charge and control of the locomotive and attached cars, and it would seem to have been his duty, as it was within his power, to have prevented the subsequent collision of the detached parts. And, in that event, the case would be ruled by Baltimore & O. R. Co. v. Baugh, 149 U.S. 368 , 37 L. ed. 772, 13 Sup. Ct. Rep. 914, where it was held that the engineer and fireman of a locomotive engine, running alone on a railroad and without any rain attached, are fellow servants, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former.

    However, waiving these suggestions, and proceeding on the assumptions of the courts below that it was the duty of the conductor, at the time and place of the accident, to have the brakemen on the top of the cars where they could apply the hand brakes, and that his failure to do so was the proximate cause of the injury to the plaintiff's intestate resulting from the subsequent collision of the detached portions of the train, we meet the question, Would, in such a state of facts, the company be liable to the injured brakeman for the negligence of the conductor?

    There is a general rule of law, established by a great preponderance of judicial authority in the English and in the state and Federal courts, that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. But there have been conflicting views expressed in the application of this rule in cases where the employer is a railroad company, or other large organization, employing a number of servants engaged in distinct and separate departments of service; and our present inquiry is whether the relation between [175 U.S. 323, 328]   the conductor and the brakeman of a freight train is that of fellow servants, within the rule, or whether the conductor is to be deemed a vice principal, representing the railroad company in such a sense that his negligence is that of the company, the common employer.

    Unless we are constrained to accept and follow the decision of this court in the case of Chicago, M. & St. P. R. Co. v. ross, 112 U.S. 377 , 28 L. ed. 787, 5 Sup. Ct. Rep. 184, we have no hesitation in holding, both upon principle and authority, that the employer is not liable for an injury to one employee occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work; that it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; and that, accordingly, in the present case, upon the facts stated, the conductor and the injured brakenan are to be considered fellow servants within the rule.

    We shall refer to a few of the authorities which establish these principles. Farwell v. Boston & W. R. Corp. 1 Met. 49, 38 Am. Dec. 339, is the leading case in Massachusetts. The question was thus stated by Chief Justice Shaw:

    After discussing the principles of law and reason applicable to the case, the chief justice proceeded:

    In Shearman v. Rochester & S. R. Co. 17 N. Y. 153, it was held by the New York court of appeals that a servant who sustains an injury from the negligence of a superior agent engaged in the same general business can maintain no action against their common employer, although he was subject to the control of such superior agent, and that, accordingly, a brakeman upon a railroad whose duty it is not to apply the brakes except when directed by the engineer or conductor cannot maintain an action against their common employer for an injury resulting from the culpable speed at which the engineer and conductor ran the train. And this appears to be the settled doctrine in the state of New York. Besel v. New York C. & H . R. R. Co. 70 N. Y. 173; De Forest v. Jewett, 88 N. Y. 264.

    The supreme court of Pennsylvania has held, in numerous cases, and it is settled law in that state, that a fellow servant, within the meaning of the rule, is anyone serving the same mater, and under his control, whether equal, inferior, or superior to the injured person in his grade or standing, and the fact that the injured servant was under the control of the servant by whose negligence the injury was caused makes no difference. Weger v. Pennsylvania R. Co. 55 Pa. 460; Lehigh Valley Coal Co. v. Jones, 86 Pa. 432.

    In Columbus & I. C. R. Co. v. Arnold, 31 Ind. 174, 99 Am. Dec. 615, the supreme court of Indiana held, reversing some previous cases to the contrary, that it is the duty of a railroad company to use all reasonable care in the proper construction of its road, and in supplying it with the necessary equipment, and in the selection of competent subordinates to supervise, inspect, repair, and regulate the machinery, and to regulate and control the operation of the road; and that if [175 U.S. 323, 333]   these duties are performed with care by the company, and one of the persons so employed is guilty of negligence by which an injury occurs to another, it is not the negligence of the master, and the company is not responsible.

    Without following further the history of this subject in the courts of the several states, we may state that, generally, the doctrine there upheld is that of the cases herein previously cited, except in the courts of the states of Ohio, Kentucky, and perhaps others, in which the rule seems to obtain that while the master is not liable to his servant for any injury committed by a servant of equal degree in the same sphere of employment, unless some negligence is fixed on the master personally, yet that he is liable for the gross negligence of a servant superior in rank to the person injured, and is also liable for the ordinary negligence of a servant not engaged in the same department of service.

    Leaving the decisions of the state courts, and coming to those of this court, we find the latter to be in substantial harmony with the current of authority in the state and English courts. From this statement the case of Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377 , 28 L. ed. 787, 5 Sup. Ct. Rep. 184, must, perhaps, be excepted, and to it we shall revert after an examination of our other cases.

    Randall v. Baltimore & O. R. Co. 109 U.S. 478 , 27 L. ed. 1003, 3 Sup. Ct. Rep. 322, was the case of an action in the circuit court of the United States for the district of West Virginia against a railroad corporation by a brakeman in its employ for personal injuries received, while working a switch, by being struck by one of its locomotive engines; and it was unanimously held by this court, affirming the court below, that the plaintiff could not recover, although the injury was occasioned by the negligence of the engineman in running his engine too fast, or not giving due notice of its approach. In the course of the opinion, which was pronounced by Mr. Justice Gray, he said:

    Northern P. R. Co. v. Herbert, 116 U.S. 642 , 29 L. ed. 755, 6 Sup. Ct. Rep. 590, was a case wherein it appeared that a brakeman suffered an injury by reason of the fact that the brakes which he was called upon to apply were broken and our of order, and it was held, per Mr. Justice Field, that it was the duty of the company to furnish sufficient and safe materials, machinery, or other means by which service is to be performed, and to keep them in repair and order, and that as this duty had not been fulfilled the plaintiff was entitled to recover. There was another question in that case as to the import and effect of a statute of Dakota, in which territory the accident took place, providing that 'an employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee,' and that 'an employer must, in all cases, indemnify his employee for losses caused by the former's want of ordinary care.'

    It was held, by a majority of the court, that these provisions [175 U.S. 323, 335]   of the Dakota Code expressed the general law that an employer is responsible for injury to his employees caused by his own want of ordinary care; that his selection of defective machinery, which is to be moved by steam power, is of itself evidence of a want of ordinary care, and allowing it to remain out of repair, when its condition is brought to his notice, or by proper inspection might be known, is culpable negligence; that the cars, in that case, had been defective for years; that the brakes were all worn out, and their condition had been called to the attention of the yard master, who had control of them while in the yard, and might have been ascertained, upon proper inspection, by the officer or agent of the company charged with the duty of keeping them in repair, yet nothing was done to repair either brakes or cars; that, in such circumstances, the company had not exercised ordinary care to keep the cars and brakes in good condition; and that, therefore, under the provisions of the statute, the company was bound to indemnify the plaintiff. The minority of the court considered that the case was governed by the local statute, and that the statute, properly construed, relieved the employer, under the facts of the case, from liability to the injured employee. They declined to express any opinion upon the question of liability apart from the statute.

    Quebec S. S. Co. v. Merchants, 133 U.S. 375 , 33 L. ed. 656, 10 Sup. Ct. Rep. 397, was an action brought in the circuit court of the United States for the southern district of New York by one Merchant, who was employed as a stewardess of the steamship Bermuda, belonging to the defendant company. It appeared that the ship's company consisted of thirty- two persons, divided into three classes of servants, called three departments-the deck department, the engineers' department, and the steward's department. The captain, the first and second officers, the purser, the carpenter, and the sailors were in the deck department; the engineers, the firemen, and the stokers were in the engineers' department; the steward, the waiters, the cooks, the porter, and the stewardess were in the steward's department. At the close of the evidence the defendant's counsel requested the court to charge the jury to find a verdict for the defendant on the ground that the injury sustained by the plaintiff was occasioned, if there was [175 U.S. 323, 336]   any negligence, by the negligence of a fellow servant. This the court refused to do. There was a verdict for the plaintiff, and the case was brought to this court. Here it was contended that as the carpenter, whose negligence was alleged as the cause of the accident, 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 Mr. Justice Blatchford, speaking for the entire court, said:

    The next notable case is that Baltimore & O. R. Co. v. Baugh, 149 U.S. 368 , 37 L. ed. 772, 13 Sup. Ct. Rep. 914, in which it was held that an engineer and fireman of a locomotive, running alone and without any train attached, were fellow servants of the company, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former. In the course of the opinion Mr. Justice Brewer said:

    We shall have occasion to revert to this case when we come to consider the decision in Chicago, M. & St. P. R. Co. v. Ross.

    In Northern P. R. Co. v. Hambly, 154 U.S. 349 , 38 L. ed. 1009, 14 Sup. Ct. Rep. 983, it was held that a common day laborer in the employ of a railroad company, who, while working for the company under the order and direction of a section boss or foreman, on a culvert on the line of the company's road, receives an injury by and through the negligence of the conductor and of the engineer in moving and operation a passenger train upon the company's road, is a fellow servant with such engineer and such conductor, in such a sense as exempts the railroad company from liability for the injury so inflicted; and Mr. Justice Brown, in delivering the opinion of the court, observed:

    In Central R. Co. v. Keegan, 160 U.S. 259 , 40 L. ed. 418, 16 Sup. Ct. Rep. 269, Baltimore & O. R. Co. v. Baugh, 149 U.S. 368 , 37 L. ed. 772, 13 Sup. Ct. Rep. 914, was approved and followed in respect to its statement as to what constitutes a vice principal.

    In Northern P. R. Co. v. Peterson, 162 U.S. 346 , 40 L. ed. 994, 16 Sup. Ct. Rep. 843, an action had been brought in the cireuit court of the United States for the district of Minnesota by Peterson to recover damages against the railroad company, alleged to have been caused by the negligence of the foreman of a gang of laborers, engaged in putting in repair sections of the railroad. The foreman had power to hire and discharge the hands who composed the gang, and had exclusive charge of their direction and management in all matters connected with their employment. The plaintiff recovered a verdict, and the judgment of the circuit court thereon was affirmed by the circuit court of appeals of the eighth circuit. The cause was brought to this court, and the judgments of the courts below were reversed. The opinion of this court was by Mr. Justice Peckham, in which he reviewed the authorities, and expressed the following conclusions:

    The last case we shall refer to is that of Oakes v. Mase, 165 U.S. 363 , 41 L. ed. 746, 17 Sup. Ct. Rep. 345, where it was declared to be the settled law of this court that the relation of fellow servants exists between an engineer, operating a locomotive on one train, and the conductor on another train on the same road; and Northern P. R. Co. v. Poirier, 167 U.S. 48 , 42 L. ed. 72, 17 Sup. Ct. Rep. 741, where it was held that a brakeman on a regular train of a railroad and the conductor of a wild train, on the same road, are fellow servants, and the railroad company is not responsible for injuries happening to the former by reason of a collision of the two trains, caused by the negligence of the latter and by his disregard of the rules of the company.

    Without attempting to educe from these cases a rule applicable to all possible circumstances, we think that we are warranted by them in holding in the present case that, in the absence of evidence of special and unusual powers having been conferred upon the conductor of the freight train, he, the engineer, and the brakemen, must be deemed to have been fellow servants within the meaning of the rule which exempts the railroad company, their common employer, from liability to one of them for injuries caused by the negligence of another.

    This conclusion is certainly sound unless we are constrained to hold otherwise by the decision in Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377 , 28 L. ed. 787, 5 Sup. Ct. Rep. 184, already referred to. That was a case wherein an action was maintained, brought by a locomo- [175 U.S. 323, 341]   tive engineer to recover damages received in a collision caused by the negligence of the conductor of the train; and it must be admitted that the reasoning employed by Mr. Justice Field, in his opinion expressing the views of a majority of the court, and the conclusion reached by him, cannot be reconciled with the other decisions of this court hereinbefore cited. We do not think that it would be proper to pass by the case without comment, nor yet to attempt to distinguish it by considerations so narrow as to leave the courts below in uncertainty as to the doctrine of this court on a subject so important and of such frequent recurrence. The case in hand exemplifies the perplexity caused by the Ross Case. The trial court gave effect to it as establishing the proposition that the conductor of an ordinary freight train, with no other powers than those assumed to belong to such an employee by virtue of such a position, is a vice principal, against whose negligence the company is bound to indemnify all the other employees on the train. Yet it is evident that the judges of the circuit court of appeals did not find themselves able to either accept or reject such a proposition, as they have certified it to us as one on which they desire our instructions. Such a course plainly evinces doubts whether, in view of the decisions both before and since, the case of Chicago, M. & St. P. R. Co. v. Ross, furnishes a safe and approved rule to guide the trial courts.

    While the opinion in the Ross Case contains a lucid exposition of many of the established rules regulating the relations between masters and servants, and particularly as respects the duties of railroad companies to their various employees, we think it went too far in holding that a conductor of a freight train is, ipso facto, a vice principal of the company. An inspection of the opinion shows that that conclusion was based upon certain assumptions, not borne out by the evidence in the case, as to the powers and duties of conductors of freight trains. Thus it was said:

    We think these statements attribute duties and powers to conductors of freight trains much greater than ordinarily exist. Several of the instances of control assigned to the conductor really belong to the engineer, who, as railroads are now operated, is a much more important functionary in the actual movements of the train, when in motion, than the conductor. It is his hand that regulates the application of the brakes that control the speed of the train, and in doing so he acts upon his own knowledge and observation, and not upon orders of the conductor. Particularly has this become the case since the introduction of the air train-brake system. We can take notice of the act of March 2, 1893 (27 Stat. at L. 531), which enacted 'that it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power- driving wheel brake and appliances for operating the trainbrake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train-brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand-brake for that purpose.' We do not refer to this statute as directly applicable to the case in hand, but as a legislative recognition of the dominant position of the engineer.

    Cases are cited in the opinion in the Ross Case in which it has been held by the supreme court of Ohio and by the court of appeals of Kentucky that railroad companies are responsible for negligence of conductors to other employees. [175 U.S. 323, 343]   But those courts do not accept the ordinary rule exempting the master from liability to a servant for the negligent conduct of his fellows. At least, they do not apply such a rule to the extent that this and other courts have done. They hold that no service is common that does not admit a common participation, and no servants are fellow servants when one is placed in control over the other.

    In so far as the decision in the Case of Ross is to be understood as laying it down, as a rule of law to govern in the trial of actions against railroad companies, that the conductor, merely from his position as such, is a vice principal, whose negligence is that of the company, it must be deemed to have been overruled, in effect if not in terms, in the subsequent case of Baltimore & O. R. Co. v. Baugh, before cited. There Mr. Justice Brewer, in commenting upon the proposition applied in the Ross Case, that the conductor of a train has the control and management of a distinct department, said:

    Accordingly, the conclusion reached was that, although the party injured was a fireman, who was subject to the orders and control of the engineer, in the absence of any conductor, there was no liability on the company for negligence of the ad interim conductor.

    That this reasoning and conclusion were inconsistent with those in the Ross Case is not only apparent on comparing them, but further appears in the dissenting opinion in the Baugh Case of Mr. Justice Field, who was the author of the opinion in the Case of Ross. He said:

    So, likewise, Mr. Chief Justice Fuller dissented in the Baugh Case for the express reason that, in his opinion, the case came within the rule laid down in Chicago, M. & St. P. R. Co. v. Ross.

    To conclude, and not to subject ourselves to our own previous criticism, of proceeding upon assumptions not founded on [175 U.S. 323, 347]   the evidence in the case, we shall content ourselves by saying that, upon the facts stated and certified to us by the judges of the circuit court of appeals, we cannot, as a matter of law, based upon those facts and upon such common knowledge as we, as a court, can be supposed to possess, hold a conductor of a freight train to be a vice principal within any safe definition of that relation.

    Accordingly we answer the first question put to us in the affirmative, and the second question in the negative.

    Let it be so certified.

    Mr. Justice Harlan, dissenting:

    I concurred in the opinion and judgment of this court in Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377 , 28 L. ed. 787, 5 Sup. Ct. Rep. 184, and do not now perceive any sound reason why the principles announced in that case should not be sustained. In my judgment the conductor of railroad train is the representative of the company in respect of its management, all the other employees on the train are his subordinates in matters involved in such management, and for injury received by any one of those subordinates during the management of the train by reason of the negligence of the conductor the railroad company should be held responsible. As the conductor commands the movements of the train and has general control over the employees connected with its operation, the company represented by him ought to be held responsible for his negligence resulting in injury to other employees discharging their duties under his immediate orders. If in such case the conductor be not a vice principal, it is difficult to say who among the officers or agents of a corporation sued by one of its employees for personal injuries ought to be regarded as belonging to that class. Having these views, I am compelled to withhold my assent from the opinion and judgment in this case.

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