

LAW, CONSTITUTIONAL. (EMPLOYEES' LIABILITY.) 



433 



df>es not exist between the company and its 

 servants. To this the reply is made that work- 

 men no more assume the risk of accidents aris- 

 ing from the carelessness of other servants 

 than do passengers, and that the principle of 

 liability to passengers is not based on contract, 

 but is an arbitrary rule of law, since the lia- 

 bility of the company extends in many casea 

 to those who are not passengers, and with 



waukee, and St. Paul Railway Company. The 

 plaintiff was an engineer on a freight- train, 

 and had been injured by a collision with a 

 gravel-train, caused by the negligence of the 

 conductors on the two trains. The court held 

 that the company was liable. It based its de- 

 cision on the ground that the engineer and 

 conductors, though employe's of the same com- 

 pany, were not_ fellow-servants. The princi- 



whom it has no contract. "There is another pies that it affirmed will impose an impor- 



11 _ ' j_T TT_. *i~ ,1 C<i _ i O _ _ y"1 .A. 1" * J-_ J.* . J.T 1 A 1 A 



reason," says the United States Supreme Court, 

 " often assigned for this exemption, that of a 

 supposed public policy. It is assumed that the 

 exemption operates as a stimulant to diligence 

 and caution on the part of the servant for his 

 own safety as well as that of his master. Much 

 potency is ascribed to this assumed fact by 

 reference to those cases where diligence and 

 caution on the part of servants constitute the 

 chief protection against accidents. But it may 

 be doubted whether the exemption has the ef- 

 fect thus claimed for it. "We have never known 

 parties more willing to subject themselves to 

 dangers of life or limb, because, if losing the 

 one or suffering in the other, damages could 

 be recovered by their representatives or them- 

 selves for the loss or injury. The dread of per- 

 sonal injury has always proved sufficient to 

 bring into exercise the vigilance and activity 

 of the servant." The doctrine of the em- 

 ployer's exemption was advanced for the first 

 time in the United States by the Supreme 

 Court of South Carolina in 1841 (Murray vs. 

 Railroad Company, 1 McMillan's Reports, 385), 

 and in the following year it was approved in 

 an elaborate opinion by Chief-Justice Shaw, of 

 the Massachusetts Supreme Court (Farwell vs. 

 Boston and Worcester Railroad Company, 4 

 Metcalf's Reports, 49). It was first distinctly 

 announced in England in 1850, but it did not 

 become a settled principle of law in that coun- 

 try until 1858, when it was affirmed by the 

 House of Lords (Bartonshill Coal Company vs. 

 Reid and same Company vs. McGuire, 3 Mac- 

 queen's House of Lords cases, 266, 300). The 

 principle has been affirmed and recognized by 

 numerous decisions since rendered in England 

 and in the United States. A very comprehen- 

 sive meaning has been given to " common em- 

 ployment " and "fellow-servants." Under these 

 decisions it is difficult to limit the doctrine so 

 as to say that any persons employed by a rail- 

 way company, whose labors may contribute 

 to the running of its trains, are not fellow-serv- 

 ants, however widely separated their duties. 

 On the other hand, there are many decis- 

 ions in this country restricting the employer's 

 exemption from liability to cases where the 

 fellow -servants are engaged in the same de- 

 partment, and act under the same immediate 

 direction; and holding that within the reason 

 and principle of the doctrine, only such serv- 

 ants can be considered as engaged in the same 

 common employment. 



The case just decided by the United States 

 Supreme Court was Ross vs. The Chicago, Mil- 

 VOL. xxiv. 28 A 



tant limitation upon the prevalent doctrine 

 of the courts, relating to the liability of em- 

 ployers. The opinion was written by Justice 

 Field. The rule laid down and the reasons for 

 it appear in the following passage : 



It is not essential to the decision of the present con- 

 troversy to lay down a rule which will determine, in 

 all cases, what is to be deemed a common employ- 

 ment, even if it were possible to do so. 



There is, in our judgment^ a clear distinction to be 

 made, in their relation to their common principal, be- 

 tween servants of a corporation, exercising no super- 

 vision over others engaged with them in the same em- 

 ployment, and agents of the corporation, clothed with 

 the control and management of a distinct department, 

 in which their duty is entirely that of direction and 

 superintendence. A conductor, having the entire con- 

 trol and management of a railway train, occupies a 

 very different position from the brakeman, the por- 

 ters, and other subordinates employed. He is in fact 

 and should be treated as the personal representative 

 of the corporation, for whose negligence it is responsi- 

 ble to subordinate servants. This view of his relation 

 to the corporation seems to us a reasonable and just 

 one, and it will insure more care in the selection of 

 such agents, and thus give greater security to the serv- 

 ants engaged under him in an employment requiring 

 the utmost vigilance on their part, and prompt and 

 unhesitating obedience to his orders. The rule which 

 applies to such agents of one railway corporation must 

 apply to all, and many corporations operate every day 

 several trains over hundreds of miles at great distances 

 apart, each being under the control and direction of a 

 conductor specially appointed for its management. 

 We know from the manner in which railways are op- 

 erated, that, subject to the general rules and orders of 

 the directors of the companies, the conductor has en- 

 tire control and management of the train to which he 

 is assigned. He directs when it shall start, at what 

 speed it shall run, at what stations it shall stop 2 and 

 for what length of time, and everything essential to 

 its successful movements, and all persons employed on 

 it are subject to his orders. In no proper sense of the 

 terms is he a fellow-servant with the fireman, the 

 brakeman, the porters, and the engineer. The latter 

 are fellow-servants in the running of the train under 

 his direction, who, as to them and the train, stands in 

 the place of and represents the corporation. As ob- 

 served by Mr. Wharton, in his valuable treatise on the 

 " Laws of Negligence " : " It has sometimes been said 

 that a corporation is obliged to act always by servants, 

 and that it is unjust to impute to it personal negligence 

 in cases where it is impossible for it to be negligent 

 personally. But if this be true, it would relieve cor- 

 porations from all liability to servants. The true view 

 is, that as corporations can act only through superin- 

 tending officers, the negligences of those officers with 

 respect to other servants are the negligences of the 

 corporation." ( 232 a.) 



There are decisions in the courts of other States, 

 more or less in conformity with those cited from Ohio 

 and Kentucky, rejecting or limiting to a erreater or less 

 extent the master's exemption from liability to a serv- 

 ant for the negligent conduct of his fellows. We agree 

 with them in holding and the present case requires 

 no further decision that the conductor of a railway 

 train, who commands its movements, directs when it 



