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Commentaries on the law of negligence in all relations online

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Supp. 840; 46 N. Y. St Rep. 77; 18
N. Y. Supp. 768 (a fellow servant
with a brakeman in determining not
to apply for more brakemen, or not
to set off cars from his train, be-
fore proceeding down a steep grade,
even where the matter is left to his
discretion) ; Hoover v. Beech Creek
R. Co., 154 Pa. St 362; s. c. 26 Atl.
Rep. 315 (conductor and engineer,
on the one hand and a brakeman on
the other); Johnston v. Pittsburgh
&c R. Co., 114 Pa. St 443 (though
the conductor was sick and tired
out); Campbell v. Cook, 86 Tex.
630; s. c. 26 S. W. Rep. 486; rev'g
s. c. (Tex. Civ. App.), 24 S. W. Rep.
977- (when employed by a receiver,
although the conductor has control
and superintendence over the brake-
man, if he has no authority to em-
ploy or discharge brakemen under
his control on the same train);
Jackson v. Norfolk &c. R. Co., 43 W.
Va. 380; s. c. 2 Chic. L. J. Wkly.
300; 27 S. E. Rep. 278; 6 Am. &
Eng. R. Cas. (N. S.) 455; 46 L. R
A. 337; Pease v. Chicago &c. R. Co.,
61 Wis. 163 (conductor caused train
to start while brakeman was under
it); Northern &c. R. Co. v. Hogan.
63 Fed. Rep. 102; s. c. 11 C. C. A. 51.

B Van Amburg v. Vicksburg &c. R.
Co., 37 La. An. 650; s. c. 55 Am.
Rep. 517; Little Miami R. Co. v.
Stevens, 20 Ohio St. 415.

6 Ante, § 4939.

4 a Compare post, § 5042, where



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ceiving the same orders from a traih-despatcher, which each is required
to compare with that received by the other, are held to be fellow serv-
ants. 7 This doctrine has not received universal assent ; and in a very
important case, possibly overruled, at least disregarded, by the court
in which the decision was rendered, it was held (three justices dis-
senting) that a conductor who has charge of a train and who com-
mands its movements is not a fellow servant of the engineer so as to
preclude a recovery of damages by the engineer from the company
for an injury resulting from the negligence of the conductor. 8

§ 5033. Conductor and Engineer of a Construction Train and La-
borers on such Train. — These have been generally regarded as fellow
servants, 9 but this view has not received universal assent. The con-



this subject is considered from the
standpoint of the engineer.

T Edmonson v. Kentucky Ac. R.
Co., 105 Ky. 479; s. c. 20 Ky. L.
Rep. 1296; 49 S. W. Rep. 200, 448;
withdrawing opinion in 46 S. W.
Rep. 679; Grattis v. Kansas City Ac.
R. Co., 153 Mo. 380; s. c. 55 S. W.
Rep. 108; 48 L. R. A. 399 (conductor
is a fellow servant of the engineer
and also of the fireman who was
injured by the negligent acts of the
conductor in making the signal and
the engineer in obeying it) ; Rags-
dale v. Memphis Ac. R. Co., 59 Tenn.
426.

•Chicago Ac. R. Co. v. Ross, 112
U. 8. 377. See also, Ross v. Chi-
cago Ac. R. Co., 2 McCrary (U. S.)
235; Galveston Ac. R. Co. v. Brown
(Tex. Civ. App.), 59 S. W. Rep.
930 (no off. rep.) ; s. c. rev'd on
other grounds, 95 Tex. 2; 63 S. W.
Rep. 305 (when not deemed fellow
servants with respect to an injury
received by the engineer because of
the act of the engineer in starting
the train in pursuance of the con-
ductor's orders); Terre Haute Ac.
R. Co. v. Chicago Ac. R. Co.. 53 111.
App. 41 (the fact that the train-
despatcher directs his orders to both
does not make them fellow serv-
ants).

•St. Louis Ac. R. Co. v. Shackel-
ford, 42 Ark. 417; Chicago Ac. R.
Co. v. Keefe, 47 111.. 108; Chicago
Ac. R. Co. v. McDonald, 21 111. App.
409; Ohio Ac. R. Co. v. TIndall. 13
Ind. 366 (engineer and shovellers
6n gravel-train) [distinguishing
Fitzpatrick v. New Albany Ac. R.



Co., 7 Ind. 436]; O'Connell v. Balti-
more Ac. R. Co., 20 Md. 212 (con-
ductor of "dump" or gravel train,
and laborer thereon) ; Cumberland
Coal Ac. Co. v. Scally, 27 Md. 589
(coal miner, detailed to repair break
in railway owned by his master, and
conductor of construction train on
which he was working) ; Cassidy
v. Maine Ac. R. Co., 76 Me. 488; Mc-
Gowan v. St. Louis Ac. R. Co., 61
Mo. 528 (in the absence of proof
that the conductor was in fact a
vice-principal) ; Knahtla v. Oregon
Ac. R. Co., 21 Or. 136; s. c. 27 Pac.
Rep/ 91 (engineer and conductor of
a train in use for patrolling and re-
pairing a railroad-track are fellow
servants with a section-hand upon
the train employed to make repairs
when defects are found, although
he has no duties to perform upon
the train) ; Ryan v. Cumberland
Valley Ac. R. Co., 23 Pa. St. 3&4;
Corona v. Galveston Ac. R. Co.
(Tex), 17 S. W. Rep. 384 (no off.
rep.); Northern Pac. R. Co. v.
Smith, 59 Fed. Rep. 993; s. c. 8
C. C. A. 663 (where the roadmaster
is in charge of such train, direct-
ing its movements, and has control
of all persons employed upon it,
including the conductor and en-
gineer) ; Martin v. Atchison Ac. R.
Co., 166 U. S. 399; s. c. 41 L. ed.
1051; 17 Sup. Ct. Rep. 603 (con-
ductor and hands on a work-train,
and a section-foreman in charge of
a hand-car, are fellow servants of a
laborer on the hand-car under the
orders of such foreman) .

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4 Thomp. Xeg.] the fellow-servant doctrine.

ductor of a material-train has been regarded, not as a fellow servant
of a laborer on the train, but as the vice-principal of the master, with
respect to the duty of readjusting a switch; 10 and. a recovery was al-
lowed a laborer upon a gravel-train for an injury received through
the negligence of the conductor of the train, who had control, with
power to hire and discharge; 11 and so where the foreman of a con-
struqtion-train negligently caused the train to be moved back with-
out waiting for a signal from a switchman who was making a coup-
ling, to the latter^ injury; 118 and where the conductor himself was
killed through the negligence of the members of a bridge-gang while
unloading a car, and the conductor had nothing to do^ with the load-
ing or unloading of the cars or the work of building bridges, a re-
covery was allowed on the ground that the bridge-gang and the con-
ductor were engaged in different departments of service, although
the conductor was, at the time, trying to prevent one of the gang
from injuring the back of the car. 12

§ 5034. Conductor and Car-Repairer Working in the Same Yard. —

A conductor of a freight-train is not a superior officer or vice-prin-
cipal with respect to a car-repairer working in the same yard, but
they are fellow servants. 18

§ 5035. Conductor of Train and Track-Repairers. 183 — Whether a
train-conductor and a section-foreman or section-men are to be
deemed fellow servants is a question which may be answered differ-
ently according to the relation of the parties in each particular case.
The relation of fellow servants between train-conductors and track-
workmen has been affirmed in the case of a section-man working un-
der the direction of the conductor of a delayed train in removing an
obstruction from the track, although the rules of the company put
him under the orders of the conductor; 14 in the case of a man em-
ployed to shovel gravel upon a gravel-train, with respect to the con-
ductor of the same train ; 18 with respect to a shoveller of snow, going
upon a train engaged in removing snow from the track, and the con-

10 Coleman v. Wilmington Ac. R. (Tex. Civ. App.), 40 S. W. Rep. 152
Co., 25 S. C. 446; s. c. 60 Am. Rep. (no off. rep.).
516. u Johnson v. Cleveland Ac. R. Co.,

"Chicago Ac. R. Co. v. Blank, 24 11 Ohio C. C. 553; a c. 1 Ohio C. D.
111. App. 438. 290.

"a Louisville Ac. R. Co. v. Walling- "a Compare post, § 5103, et seq.
ford, 15 Ky. L. Rep. 170; s. c. 22 S. "Slavens v. Northern Pac. R. Co.,
W. Rep. 439 (no off. rep.). 97 Fed. Rep. 255; a c. 38 C. C. A.

"Missouri Ac. R. Co. v. Hines 151.

» Heine v. Chicago Ac. R. Co., 58
Wis. 525.

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ductbr of such train, who, by bucking the snow too hard, overturned
the car in which the shoveller rode ; 16 in the case of a conductor and
engineer of a work-train engaged in repairing the road, on the one
hand, and an employ^ upon a hand-car, also engaged in making such
repairs. 17 The contrary conclusion has been reached in the case of
the conductor of a material-train, having control of the train and
its movements, and the foreman of a gang of men engaged in repair-
ing the track, having power to direct them what to do and when to do
it, — both being deemed vice-principals; 18 in the case of a conductor
who, in disregard of signals which were displayed at a station, ran
into a car standing on the side-track having section-hands on board,
with respect to such section-hands; 19 by a strained course of reason-
ing, in the case of a section-hand engaged in repairing the track on
a curve in a city, and a conductor who ran his train upon him with-
out warning while racing, — on the ground that the jury might possi-
bly have found that the race was authorized by the company. 20

§ 5036. Conductor and Yardman. — It has been held that a con-
ductor who is injured by a collision between his train and a fugitive
freight-car, caused by a failure to set the brakes or block the wheels
(d such car upon placing it upon a side-track, is a fellow servant of
4ie yardman who put the car on the siding. 21

§ 5037. Conductor and Fireman on Same Train. — The conductor
of a train and a fireman upon the engine of the same train are gen-
erally regarded as fellow servants within the rule under considera-
tion; 22 but not in all jurisdictions. 28

u Howland v. Milwaukee Ac. R. servant with a gang of day-laborers

Co., 54 Wis. 226. * employed to work on the road,

11 Atchison Ac. R. Co. v. Martin, though under his immediate or-

7 N. Mez. 153; s. c. 34 Pac. Rep. ders).

536. n Harvey v. New York &c. R. Co.,

"Miller v. Missouri &c. R. Co., 57 Hun (N. Y.) 589; s. c. 32 N. Y.

109 Mo. 350; s. c. 19 S. W. 58. St. Rep. 817; 10 N. Y. Supp. 645.

" Haney v. Pittsburgh &c. R. Co., " Meyer v. Illinois Ac. R. Co., 177

38 W. Va. 570; s. c. 18 S. E. Rep. 111. 591; s. c. 5 Am. Neg. Rep. 558;

748. 4 Chic. L. J. Wkly. 131; 12 Am. &

•Dick v. Railroad Co., 38 Ohio Bng. R. Cas. (N. S.) 694; 52 N. B.

St 389. See also, Chicago 6c. R. Rep. 848; aff'g s. c. 65 111. App. 531.

Co. v. Lundstrom, 16 Neb. 254; s. c. "Illinois &c. R. Co. v. Spence, 93

49 Am. Rep. 718 (conductor, of a Tenn. 173; 8. c. 23 S. W. Rep. 211.
construction-train is not a fellow



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4 Thomp. Neg.] the fellow-servant doctrine.



Article IV. Engineer.



Section

5039. Engineer and brakeman on

same, train.

5040. Jurisdictions in which engi-

neer and brakeman on same
train not deemed fellow
servants.

5041. Engineer and other trainmen

on same train.

5042. Engineer and conductor on

the same train — negligence
of engineer.

5043. Engineer of construction-

train and laborers employed
thereon.

5044. Engineer and fireman on same

train.

5045. Engineer of one train and

brakeman on another train.

5046. Engineers of two different en-

gines drawing the same
train.



Section

5047. Engineer and engine- wiper.

5048. Engineer and member of

fence-gang.

5049. Engineer and shovellers on

gravel-train.

5050. Engineer and switchman.

5051. Engineer of construction-

train and section-hand on
such train.

5052. Engineer and flagman at a

crossing.

5053. Engineer and torpedo-man.

5054. Engineer acting in the place

of conductor.

5055. Engineer and cook.

5056. Engineer and employe* riding

as passenger.

5057. Engineer and section-master.

5058. Engineer and foreman of

water-supply.



§ 6039. Engineer ancf Brakeman on Same Train. — A locomotive-
engineer and a brakeman on the same train are generally deemed fel-
low servants. 1 But the engineer has sometimes been deemed the



^ummerhays v. Kansas Pac. -R.
Co., 2 Colo. 484; South Florida R.
Co. v. Price, 32 Fla. 46; s. c. 13
South. Rep. 638 (prior to the statute
of 1887); Chicago Ac. R. Co. v.
Brandau, 65 111. App. 150; St. Louis
Ac. R. Co. v. Britz, 72 111. 256;
Brewster v. Chicago &c. R. Co., 114
Iowa 144; s. c. 86 N. W. Rep. 221
(in a jurisdiction where the com-
mon-law rule had not been abol-
ished); Wallis v. Morgan's &c. R.
&c. Co., 38 La. An. 156; Bell v. Globe
Lumber Co., 107 La. 725; s. c. 31
South. Rep. 994; Warmington v.
Atchison 6c. R. Co., 46 Mo. App.
159 (brakeman with a switch-gang
is a fellow servant with the engi-
neer in charge of the switch-en-
gine); Dysart v. Kansas City &c.
R. Co., 145 Mo. 83; s. c. 46 S. W.
Rep. 751; Keegan v. New York Ac.
R. Co., 45 App. Div. (N. Y.) 629;
s. c. 64 N. Y. Supp. 595; Sherman
v. Rochester Ac. R. Co.. 17 N. Y.
153; Railway Co. v. Ranney, 37

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Ohio St. 665 [approving Pittsburgh
Ac. R. Co. v. Lewis, 33 Ohio St
196]; Chaddlck v. Lindsay, 5 Okla.
616; s. c. 49 Pac. Rep. 940; Evans ▼.
Chamberlain, 40 S. C. 104; s. c. 18 S.
E. Rep. 213 (engineer, and brakeman
engaged in coupling cars); Boat-
wright v. Northeastern R. Co., 25 S.
C. 128; Louisville Ac. R. Co. v. Mar-
tin, 87 Tenn. 398; s. c. 10 S. W. Rep.
772 (although, the forward end of
the train having been uncoupled, the
right to command had devolved up-
on the engineer, but he had not ex-
ercised the right) [compare East
Tennessee Ac. R. Co. v. Collins, 85
Tenn. 227; s. c. 1 S. W. Rep. 888
(engineer In charge of train)];
East Tennessee &c. R. Co. v. Smith,
89 Tenn. 114; s. c. 14 S. W. Rep.
1077 (the conductor being in charge
of the train) ; Nashville &c. R. Co.
v. Wheeless, 10 Lea (Tenn.) 741;
s. c. 43 Am. Rep. 317; Texas Ac. R.
Co. v. Berry, 67 Tex. 238; Interna-
tional Ac. R. Co. v Moore, 16 Tex



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vice-principal of the company, — as, for instance, in the case of a
train breaking in two, the conductor being left on the rear portion,
in which case the engineer becomes the superior officer in command
of the forward portion, and the company is liable in such a case for
injuries resulting from his failure to send back a flagman. 2

§ 5040. Jurisdictions in which Engineer and Brakeman on Same
Train Hot Deemed Fellow Servants. — In jurisdictions which do not
regard a superior servant, ordering and controlling an inferior serv-
ant, as a fellow servant of the latter, a locomotive-engineer is fre-
quently regarded as not being a fellow servant of a brakeman in such
a sense that, if the brakeman is killed or injured by reason of the
engineer's negligence, the railway company will escape liability. 8

§5041. Engineer and Other Trainmen on Same Train. — A loco-
motive-engineer is generally deemed the fellow servant of other train-
men on the same train. 4

§ 5042. Engineer and Conductor on the Same Train — Negligence
of Engineer. — Viewing the question from the standpoint of the engi-
neer, 5 and recollecting that the engineer is not, with respect to the



Civ. App. 61; s. c. 41 S. W. Rep. 70
(circumstances under which engi-
neer, instructing head brakeman as
to his duties, was not a vice-prin-
cipal as toward the latter) ; Eckles
v. Norfolk ftc. R. Co., 96 Va. 69;
8. c. 25 S. E. Rep. 545 (engineer
injured freight-conductor while lat-
ter was acting as a brakeman);
McDonald v. Norfolk ftc. R. Co., 95
Va. 98; s. c. 27 S. E. Rep. 821; 8
Am. ft Eng. R. Cas. (N. S.) 552;
Fowler v. Chicago ftc. R. Co., 61
Wis. 159; Newport News ftc. R. Co.
v. Howe, 6 U. S. App. 172; s. c. 3
C. C. A. 121; 52 Fed. Rep. 362
(train broke apart — brakeman sent
forward to signal forward portion,
which was under the control of the
engineer) ; Richmond ftc. R. Co. v.
Finley, 63 Fed. Rep. 228; s. c. 25 U.
S. App. 16; 12 C. C. A. 595; rev'g
s. c. sub nom. Finley v. Richmond
ftc. R. Co., 59 Fed. Rep. 419 (engi-
neer temporarily in charge of a
train cannot waive a standing rule
of the company requiring coupling
to be done with a stick, so as to
render it liable to a brakeman in-
jured while between the cars for the



purpose, with full knowledge of
such rule); Missouri Pac. R. Co. v.
Texas ftc. R. Co., 31 Fed. Rep. 527;
Central Trust Co. v. East Tennessee
ftc. R. Co., 69 Fed. Rep. 357.

3 Southern R. Co. v. Barr, 21 Ky.
L. Rep. 1615; s. c. 55 S. W. Rep.
900 (no off. rep.). See post, § 5054.

•Newport News ftc. R. Co. v. Ei-
fort, 15 Ky. L. Rep. 600; s. c. 49
Alb. L. J. 289 (no off. rep.); Means
v. Carolina ftc. R. Co., 126 N. C.
424; s. c. 35 S. E. Rep. 813 (was
both engineer and conductor, and
had the right to employ or dis-
charge any of the crew) ; East Ten-
nessee ftc. R. Co. v. Collins, 85 Tenn.
227; s. c. 1 S. W. Rep. 883; Rags-
dale v. Northern ftc. R. Co., 42 Fed.
Rep. 383 (engineer is a vice-prin-
cipal in respect to such movements
of a train as are wholly under his
control). But see Baltimore ftc. R.
Co. v. Baugh, 149 U. S. 368.

* Watts v. Hart, 7 Wash. 178; s.
c. 34 Pac. Rep. 423, 771.

'See ante, § 5032, where it is
viewed from the standpoint of the
conductor.

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4 Thomp. Neg.] the fellow-servant doctrine.

conductor, a vice-principal of the master, but is either an inferior serv-
ant or a fellow servant of the conductor, — it follows that if the con-
ductor is killed or injured through the negligence of the engineer,
there can be no recovery of damages. 6

§6043. Engineer of Construction-Train and Laborers Employed
Thereon. — These are generally regarded as fellow servants. 7

§ 5044. Engineer and Fireman on Same Train. — The engineer and
fireman on the same locomotive-engine are generally classified as fel-
low servants, although the engineer is the superior servant with re-
spect to the fireman, and is vested with authority to control him and
to superintend his work. 8

§ 6045. Engineer of One Train and Brakeman on Another Train. —

Whether these will be deemed fellow servants depends upon construc-
tions already adverted to. 9 It has been held that an engineer of a
"wild engine" not attached to a train is a fellow servant, and not a
vice-principal, of a brakeman upon another train with which the en-
gine collides by reason of such engineer's negligence; 10 and that a
brakeman on a freight-train is a fellow servant with an engineer on
a passenger-train of the same company; 11 but that an engineer in
charge of an engine on the main track is not, as a matter of law, a
fellow servant of a brakeman at the rear of a train # on a side-track,
who signals the engineer to go ahead. 12 Nor was such an engineer
a fellow servant with a brakeman on a freight-train standing on a
side-track, who negligently left a switch open, whereby a collision
resulted in which the engineer was injured, — such brakeman being
deemed the agent of the company to see that the switch was closed. 1 *

•Linck v. Louisville ftc. R. Co., son, 4 Bush (Ky.) 507. See also,

107 Ky. 370; a c. 21 Ky. L. Rep. Pittsburgh Ac. R. Co. v. Devinney,

1097; 54 S. W. Rep. 184 (though 17 Ohio St 197; Wright v. New

conductor was acting as brake- York &c. R. Co., 25 N. T. 562.

man); Moore v. Jones, 15 Tex. Civ. "Chicago Ac. R. Co. v. Flynn, 54

App. 391; s. c. 39 S. W. Rep. 593 111. App. 387; s. c. aff'd, 154 111. 448;

(under different sections of the 40 N. E. Rep. 332. See also, Hous-

same statute). ton &c. R. Co. v. Patterson, 20 Tex.

T Chicago Ac. R. Co. v. McDonald, Civ. App. 255; s. c. 48 S. W. Rep.

21 111. App. 409; Miller v. Ohio &c. 747 (brakeman and engineer belong-

R. Co., 24 111. App. 326. Ing to different crews operating

"Chicago &c. R. Co. v. Brandau, different trains on same division

65 111. App. 150. are^not fellow servants).

• Ante, § 5014, et aeq. ' «st. Louis &c. R. Co. ▼. Kelton,

"Healey v. New York &c. R. Co., 28 Tex. Civ. App. 137; s. c. 66 S. W.

20 R. I. 136; s. c. 37 Atl. Rep. 676; R ep# 8 87. See post, § 5085.
3 Am. Neg. Rep. 98.

"Louisville Ac. R. Co. v. Robin-

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§ 5046. Engineers of Two Different Engines Drawing the Same
Train. — If two engines are coupled together and drawing the same
train, and a collision is caused by the negligence of the engineer in
charge of the first engine," whereby the engineer in charge of the sec-
ond engine is injured, he will not be entitled to recover damages from
the company, because the two engineers are fellow servants. 14

§ 5047. Engineer and Engine-Wiper. — An engineer in charge of
an engine is a fellow servant of an engine-wiper, engaged in cleaning
it, who is injured by the act of a hostler who gets upon it and opens
the throttle for the purpose of moving it, in violation of a rule of
the company. 15 An engine-wiper employed in the yard of a railroad
company, who fires up the engines before leaving-time, is a fellow
servant with an engineer in the yard through whose negligence in
doing the necessary shifting and making up of trains preparatory
to leaving he is injured, although they are under different bosses
and he has been told to go to the engineer for instruction if his boss

is absent. 16

*.

§ 5048. Engineer and Member of Fence-Gang. — A member of a
railway fencing-gang is not, as matter of law, a fellow servant with
the locomotive-engineer of a freight-train, although at the time of
being injured the member of the fence-gang is attempting to get upon
a car for the purpose of unloading posts from it, — the reason being
that they are not in "con-association" under the Illinois rule, but are
engaged in different departments of service. 17

§5049. Engineer and Shovellers on Gravel-Train. — One who is

employed by a railroad company to assist in loading and unloading
gravel used in ballasting the road is, while riding from the gravel-pit
to the place of unloading, a fellow servant of the engineer in charge
of the locomotive, and the company is not liable for the killing of the
gravel-shoveller through the negligence of the engineer. 18

"Cincinnati &c. R. Co. v. Roberts, thorn, 147 111. 226; s. c. 35 N. E.

110 Ky. 856; s. c. 23 Ky. L. Rep. Rep. 534; aff'g s. c. 45 111. App. 635.

264; 62 S. W. Rep. 901. "Kumler v. Junction R. Co., 33

M Louisville Ac. R. Co. v. Richard- Ohio St. 150; Ohio &c. R. Co. v. Tin-
son, 100 Ala. 232; s. c. 14 South, dall, 13 Ind. 366 [distinguishing
Rep. 209. Fitzpatrick v. New Albany &c. R.

"South Florida R. Co. v. Weese, Co., 7 Ind. 436]; St. Louis &c. R.

32 Fla. 212; s. c. 13 South. Rep. 436. Co. v. Britz, 72 111. 256 (engineer,

"Louisville &c. R. Co. v. Haw- brakeman, and shoveller are fellow

servants).



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4 Thomp. Neg.J the fellow-servant doctrine.

§ 5050. Engineer and Switchman. — An engineer and switchman
brought into con-association in the discharge of their respective duties
are fellow servants; l •

§ 5051. Engineer of Construction-Train and Section-Hand on
such Train. — These are fellow servants where both are in the employ
of the same company. 20

§ 5052. Engineer and Flagman at a Crossing. — These are fellow
servants ; so that the negligence of the engineer in running his engine
with an unlighted headlight, because it is defective, instead of obey-
ing the rules, which require him to examine the engine, and, in case
of defects discovered therein, to take it to the repair-shop, by which
negligence a flagman at a crossing is killed, does not render the com-
pany liable. 21

§ 5053. Engineer and Torpedo-Han. — The engineer of a train and
an employ^ of the company whose duty it is to display danger-sig-
nals upon the track to such train, which is following, are fellow
servants; so that if the latter is injured by the negligence of the
engineer, the company is not liable. 22

§ 5054. Engineer Acting in the Place of Conductor. — A rule of a
railway company that, "in case an engine is run over any portion of
the road unaccompanied by a conductor, the engineer must perform
the duties .and make the reports of a conductor, in addition to his
own," does not have the effect of modifying the rule which makes

19 Creswell v. Wilmington &c. R. a common employment) ; Satterly
Co., 2 Pen. (Del.) 210; s. c. 43 Atl. v. Morgan, 35 La. An. 1166; Rut-
Rep. 629; 14 Am. & Eng. R. Cas. ledge v. Missouri Pac. R. Co., 123
(N. S.) 625 (engineer of a locomo- Mo. 121; s. c. 24 S. W. Rep. 1053;
tive engaged in shifting cars is a 27 S. W. Rep. 327 (switchman in-
fellow servant of one of the shift- jured while attempting to uncouple
ing-crew, killed while attempting to a car in a railroad-yard is a fellow



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