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Commentaries on the law of negligence in all relations online

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make a coupling) ; Wilson v. Madi- servant with the engineer in charge
son &c. R. Co., 81 Ind. 226 (servant of the train and with an employ^
at a particular station, part ot oh the train who gives a signal for
whose duties consisted in coupling its movement) ; Nay lor v. New York
and uncoupling trains, and the en- &c. R. Co., 33 Fed. Rep. 801.
gineer anfl conductor of any train *° Houston &c. R. Co. v. Rider, 62
that might come along and need his Tex. 267.

services in switching cars, were fel- a McDonald v. New York Ac R.

low servants); Chicago &c. R. Co. Co., 63 Hun (N. Y.) 587; s. c. 45 N.

v. Toughy, .26 111. App. 99 (locomo- Y. St. Rep. 711; 18 N. Y. Supp. 609.

tive-engineer and switchman en- "East Tennessee &c. R. Co. v.

gaged in coupling cars); Chicago Rush, 15 Lea (Tenn.) 145.
&c. R. Co. v. Henry, 7 111. App. 322
(engineer running a switch-engine
and a switch-tender are engaged in


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the engineer a fellow servant of subordinate employes of the com-
pany. 28 It has been held that an engineer temporarily in charge
of a train cannot waive a standing rule requiring coupling to be
done with a stick, so as to render the company liable to a brakeman
.who is injured while attempting to couple cars in such manner, with
full knowledge of the rule. 24

§ 5055. Engineer and Cook. — A locomotive-engineer is not a fel-
low servant of a woman who acts as a cook on a cjir attached to a
construction-train, for her husband, who has a contract with the
company to board the railroad men, his compensation being retained
by the company out of their wages. 25

§ 5056. Engineer and Employ^ Aiding as Passenger. — These are
generally regarded as fellow servants. 26 One court has stated the
rule broadly by saying. that where one accepts employment from a
railroad company, involving his transportation from place to place,
injury by the negligence of any employ^ connected with the trans-
portation of trains over its road, is within the risk ordinarily inci-
dent to the service undertaken. 27 But a railway employ^, while
riding in the car of his employer from one place to another, in
obedience to orders, is not a fellow servant of the engineer of the
train, under a statute providing that all persons engaged in the com-
mon service of a railroad company, and who are in the same grade
of employment and are working together, are fellow servants. 28

§ 5057. Engineer and Section-Master. — In one jurisdiction a loco-
inotive-engineer is not deemed the fellow servant of a section-master,
whose duty it is to look out for the condition of the road, and to
make suitable repair, because it is the personal duty of the master to

28 Stephani v. Southern &c. R. Co., * Evansyille &c. R. Co. v. Hender-

19 Utah 196; s. c. 6 Am. Neg. Rep. son, 134 Ind. 636; s. c. 33 N. E. Rep.

22; 14 Am. & Eng. R. Cas. (N. S.) 1021; Railey v. Garbutt, 112 Ga.

575; 57 Pac. Rep. . 34. See ante, 288; s. c. 37 S. E. Rep. 360 (wood-

§ 5039. cutter and a locomotive-engineer).

* Richmond &c. R. Co. v. Finley, OT Benignia v. Pennsylvania R. Co.,

63 Fed. Rep. 228; s. c. 25 U. S. App. 197 Pa. St. 384; s. c. 47 Atl. Rep.

16; 12 C. C. A. 595; rev'g s. c. sub 359.

nom. Finley v. Richmond Ac. R. Co., M Galveston &c. R. Co. v. Norris

59 Fed. Rep. 419. (Tex. Civ. App.) f 29 S. W. Rep. 950

8 Brown v. Sullivan, 71 Tex. 470; (no off. rep.); Galveston &c. R. Co.

s. c. 10 S. W. Rep. 288. But a cook v. Leonard (Tex. Civ. App.), 29 S.

on a steam-tug has been held to be W. Rep. 955 (no off. rep.); Galves-

a fellow servant of the engineer, on ton Ac. R. Co. v. Crawford, 9 Tex.

the sole ground that they were em- Civ. App. 245; s. c. 27 S. W. Rep.

ployed by a common master: Grims- 822; 29 S. W. Rep. 958.
ley v. Hanklns, 46 Fed. Rep. 400.


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

provide and maintain a safe road-bed, and the section-master, in so
doing, is a vice-principal. 29

§ 5058. Engineer and Foreman of Water-Supply. — The foreman
of the water-supply arrangements on a division of a railroad, whose
duty it is to supervise the tanks and pumping-machinery at water-
stations and to keep them in repair, and who, in. the performance
of his duties, is required to ride over the road from station to sta-
tion on a pass which is furnished him, which is good on all trains,
is deemed a fellow servant of an engineer on whose engine he is rid-
ing to a station where his services are required; so that, if he is in-
jured in a collision brought about by the negligence of the engineer,
he cannot recover damages from the company. 80

Article V. Switchmen, Yardmen, Roundhouse-Men, Etc.

Section Section ,

5062. Foreman of yard-engines and 5074. Yardmen and roundhouse-

switchmen or yardmen. man.

5063. Foreman of switch-crew and 5075. Yard-clerk and .switching-

member of crew. crew.

5064. Foreman of roundhouse and 5076. Yard-clerk and engineer of

brakeman. freight-train.

5065. Hostler at roundhouse and 5077. Carpenter in switch-yard and

his helper. • engineer.

5066. Employ^ of outside foreman 5078. Yard conductor and fireman.

and employe of inside round- 5079. Yardmaster and yard fore-
house-foreman, man.

5067. Switchman and trainmen. 5080. Yardman and trainman.

5068. Switchmen on different en- 5081. Yardmaster or 'yard-foreman,

gines. ' and yard-helper or yard-

5069. Members of different switch- hand.

lng-crews. 5082. Yard-superintendent and fore-

5070. Foreman of one switching- man of yard-engines.

. crew and members of an- 5083. Car-inspector and yardmaster
other switching-crew. over him.

5071. Switchman and switchmen. 5084. Engine-repairer and yardman

5072. Night-watcher and foreman assisting him.

of yard-crew. 5085. Switch-tender and other em-

5073. Yardmaster and switchman. ploygs.

§ 5062. Foreman of Yard-Engines and Switchmen or Yardmen-—

These, when engaged in the same yard in switching cars, are deemed

•Calvo v. Charlotte Ac. R. Co., 23 149; rev'g s. c. sub nom. Stuber v.

S. C. 526; s. c. 55 Am. Rep. 28. Louisville &c. R. Co., 102 Fed. Rep.

w Louisville Ac. R. Co. v. Stuber, 421.
108 Fed. Rep. 934; s. c. 48 C. C. A.


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fellow servants. 1 This is so under the "con-association doctrine" which
obtains in Illinois ; so that two engine-crews engaged in switching cars
in the yards of a company, each of which has a foreman who gives '
orders to his own crew, while both crews are under the command of a
common yardmaster and are associated together in the business of
switching cars in the company's yards, are fellow servants. 2 It is so
under a statute of Texas, defining fellow servants to be persons en-
gaged in the common service of a railway company in the same grade
of employment, without any superintendence or control over their
fellow employes, or authority to direct any other employ^ in per-
forming his duties, working together at the same place and to a com-
mon purpose. 8

§ 5063. Foreman of Switch-Crew and Member of Crew. — In some
jurisdictions, it is held that a foreman of a switch-crew is not a fel-
low servant with a member of the crew under him, — as where the
plaintiff, under the orders of his foreman, was making a coupling,
and the foreman negligently sent a second cut of cars into the switch,
injuring the plaintiff. 4 So, where an employ^ was injured by the neg-
ligence of his foreman, while making a running switch under the
foreman's orders ; and it appeared that the foreman of the crew, who
received his orders from the yardmaster, in carrying out such orders
had control and directed the movements of the switch-crew, — the jury
were warranted in finding that such foreman was not a fellow servant
when exercising command over the crew. 5

§ 5064. Foreman of Roundhouse and Brakeman. — A brakeman on
a freight-train is not a fellow servant with the foreman of a round-
house whose duty it is to keep the engines in repair; so that if the
brakeman is injured by the negligence of the foreman in suffering an
engine to go out in a bad state of repair, it is not the negligence of a
fellow servant, but that of the master, since it is a failure to perform
one of the primary or absolute duties of the master. 6

x Harley v. Louisville &c. R. Co., tenhouse, 28 Ind. App. 633; s. c.

57 Fed. Rep. 144. 62 N. E. Rep. 295 (under Employ-

*0'Leary v. Wabash R. Co., 52 ers' Liability Act).

111. App. 641. 8 Illinois Cent. R. Co. v. Johnson,

3 Gulf Ac. Co. T. Warner, 89 Tex. 95 111. App. 54; s. c. aff'd, 191 111.

475; s. c. 35 S. W. Rep. 364. To the 594; 61 N. E. Rep. 334; Taylor v.

same effect, see Texas &c. R. Co. Missouri Pac. R. Co. (Mo.), 16 S.

v. Tatman, 10 Tex. Civ. App. 434; W. Rep. 206 (no off. rep.),

s. c. 31 S. W. Rep. 333 (foremen of 6 Ohio Ac. R Co. v. Stein, 140

two yard-engines). Ind. 61; s. c. 39 N. E. Rep. 246.

*Terre Haute &c. R. Co. v. Rit-

vol. 4 thomp. neg.— 67 1057

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

§ 5065. Hostler at Roundhouse and his Helper. — A hostler at a
roundhouse and his helper, in the duty of caring for locomotives, are
fellow servants with respect to an injury which the helper may re-
ceive while working with the hostler, where the injury is not due to
any improper exercise of authority by the hostler over the helper. 7 It
has been held that the head hostler of a roundhouse is a fellow servant,
and not the vice-principal, of a locomotive-fireman and of a "wiper"
or "fire-puller" employed in the roundhouse; and hence his knowl-
edge of the incompetency of the latter employ6 is not chargeable to the
company so as to render it liable for personal injuries to the fireman
resulting from such incompetency, where the roundhouse is in charge
of a foreman and master mechanic, who alone has the power to hire
and discharge servants. 8

§ 5066. Employ6 of Outside Foreman and Employ6 of Inside
Roundhouse-Foreman. — An employ^ was injured through a collision
between an engine standing over a cinder-pit in a roundhouse, on
which engine the employ6 was engaged under orders of the inside
roundhouse-foreman, and an engine which was run in from the out-
side under orders from the outside foreman. It was held that the in-
jured employ^ and the employ6 acting under the orders of the out-
side foreman were not fellow servants. 9

§ 5067. Switchman and Trainmen. — A switchman is 10 or is not "
a fellow servant of other trainmen according to the supreme thought
of the hour or of the court.

7 Chicago &c. R. Co. v. Massig, 50
111.. App. 666; Clay v. Chicago Ac.
R. Co., 56 111. App. 235.

•Smith v. St. Louis Ac. R. Co.,
151 Mo. 391; s. c. 14 Am. & Eng.
R. Cas. (N. S.) 609; 52 S. W. Rep.

•Texas &c. R. Co. v. Scruggs, 23
Tex. Civ. App. 712; & c. 58 S. W.
Rep. 186.

10 St. Louis &c. R. Co. v. Brown,
67 Ark. 295; s. c. 54 S. W. Rep. 865
(coupling-link on foreign car broke
through negligence of switchman,
whose duty it was to put only
sound links and pins in the cars
composing the train; fireman in-
jured — no recovery) ; Miller v.
Southern Pac. R. Co., 20 Or. 285;
s. c. 43 Alb. L. J. 354; 26 Pac. Rep.
70; Guthrie v. Southern Pac. R.
Co. (Or.), 26 Pac. Rep. 76 (no off.
rep.) (switchman failing properly


to close a switch or to report that it
is out of repair; trainman injured-
no liability; Hudson v. Charleston
Ac. R. Co., 55 Fed. Rep. 248 (fire-
man and switchman engaged in
coupling or uncoupling cars).

"Louisville &c. R. Co. v. Sheets.
11 Ky. L. Rep. 781; s. c. 13 S. W.
Rep. 248; 41 Am. & Eng. R. Cas.
470 (no off. rep.) (not a fellow
servant of a locomotive-engineer,
under a statute); Lake Shore &c.
R. Co. v. Feller, 21 Ohio C. C. 605;
s. c. 11 Ohio C. D. 799 (not a fel-
low servant of a brakeman where
division yardmaster had delegated
to him the duty to warn an ap-
proaching train of danger) ; Lake
Shore &c. R. Co. v. Pero, 22 Ohio
C. C. 130; s. c. 12 Ohio C. D. 25
(switch-tender not a fellow servant
of train -conductor under a stat-
ute) ; Lake Shore &c. R. Co. v. Man,

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§ 6068. Switchmen on Different Engines. — In Texas a switchman
on one engine is not deemed a fellow servant of a switchman on an-
other engine. 12

§5069. Members of Different Switching-Crews. — Two switching-
crews of the same railroad company are fellow servants, so that the
company is not liable for an injury to a member of one crew caused
by negligence on the part of the other crew, or of a member of it. 18

§ 5070. Foreman of One Switching-Crew and Members of Another
Switching-Crew. — There is a decision to the effect that the foreman
of one of two crews in a switch-yard, all being employ 6s of the rail-
road company, while being a vice-principal with respect to the mem-
bers of his own crew, is yet a fellow servant with respect to the mem-
bers of the other crew ; so that the company is not liable for injury in-
flicted through the negligence of such foreman upon a member of the
other crew, where all are under the control and direction of the same
yardmaster, and the foreman has no control, or direction over the
members of the other crew. 14

§ 5071. Switchman and Switchmen. — Switchmen working to-
gether in the same squad or in the same yard are, of course, fellow
servants. 15

§5072. Night-Watcher and Foreman of Yard-Crew. — A night-
watcher employed by a railroad company to note and report upon the
conduct of a foreman of a night crew, whose duty it is to make up
trains, is a fellow servant of the foreman. 16

§ 5073. Yardmaster and Switchman. — A yardmaster, with power
to hire and discharge men, to assign them to their duties, and to
direct them in the performance thereof, is not a fellow servant of a
switchman employed in the yard, but is the vice-principal of the rail-
way company. 17

9 Ohio C. C. 173 (railroad company v. Driscoll, 176 111. 330; s. c. 4 Chic,

liable to a switchman riding home L. J. Wkly. 130; 12 Am. & Eng. R.

as customary upon an engine, due Cas. (N. S.) 644; 52 N. E. Rep.

to the negligence of a brakeman 921; rev'g s. c. 70 111. App. 91.

and the conductor). "Missouri Pac. R. Co. v. Lyons,

"Galveston &c. R. Co. v. Master- 54 Neb. 633; s. c. 75 N. W. Rep. 31.

son, 91 Tex. 385; s. c. 51 S. W. Rep. "Illinois Cent. R. Co. v. Stewart,

1091 (citing as overruled, Texas — - Ky. — ; s. c. 23 Ky. L. Rep. 637;

&c. R. Co. v. Tatman, 10 Tex. Civ. 63 S. W. Rep. 596.

App. 434; s. c. 31 S. W. Rep. 333). "Chicago Ac. R. Co. v. Geary, 110

"Chicago Ac. R. Co. v. Hartley, 111. 383.

90 111. App. 284; Chicago Ac. R. Co. "Lyttle v. Chicago &c. R. Co., 84


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4 Thomp. N"eg.] the fellow-servant doctrine.

§ 5074. Yardmen and Roundhouse-Man. — It has been held that
a roundhouse employe, subject to the control of the foreman of the
.roundhouse, is not a fellow servant of employes of the yardmaster,
so as to relieve the company from liability for an injury to him
from the negligence of the employes of the yardmaster in leaving a
coal-car too near the work-track to allow clearance, where it was the
duty of the yardmaster's employes to place the coal-cars- in proxim-
ity to the engines, and the duty of the roundhouse foreman's em-
ployes to take coal from such cars for the engines. 18

§ 5075. Yard-Clerk and Switching-Crew. — A clerk whose duty it
is to take the numbers of cars delivered to a railroad company in its
yard, under instructions to keep out of the way of the switching-
crew therein, assumes, as one of the. ordinary hazards of the service,
the risk of injury from the negligence of the switching-crew. 19

§ 5076. Yard-Clerk and Engineer of Freight-Train. — It has been
held that a "yard-clerk," whose duty it is to take a record of the
seals of the cars in the yard, is, while so engaged, a fellow servant
of an engineer of a freight-train backing into the yard. 20 So, one
whose duties are to take the number of each car coming into a sta-
tion is a fellow servant with the engineer, since, though engaged in
different kinds of work, their duties bring them into constant asso-
ciation. 21 But a car accountant employed by a terminal railway
company to check up the cars that come into the common yard is
not a fellow servant of a locomotive-engineer of one of the com-
panies using the yard under an arrangement with the terminal com-
pany, where, in taking an account of the cars, he is not acting for
the railroad company but is acting for the terminal company, and
there is no common superior having control of all persons engaged

Mich. 289; s. c. 47 N. W. Rep. 571. another car for the purpose of re-
See also, Taylor v. Missouri Pac. moving it from the yard: Atchison
R. Co. (Mo.), 16 S. W. Rep. 206 &c. R. Co.' v. Meyers, 76 Fed. Rep.
(no off. rep.) (yardmaster with 443; s. c. 46 U. S. App. 226; 22 C. C.
general charge of a railway-yard A. 268.

not a fellow servant of a member "Houston &c. R. Co. v. Talley,

of a switching crew employed in 15 Tex. Civ. App. 115; s. c. 39 S.

the yard). On the other hand, W. Rep. 206.

where a "foreign car" was retained "East St. Louis &c. R. Co. v.

in the yards of a railway company. O'Hara, 59 111. App. 649.

after it had been ordered to be re- *°New York Ac. R. Co. ▼. Hyde,

turned as defective, by the yardmas- 56 Fed. Rep. 188; s. c. 5 C. C. A

ter, or by crews in the yard, this 461.

was deemed an act of a fellow serv- " Beuhrlng v. Chesapeake 6c. R.

ant of a switchman injured while Co., 37 W. Va. 502; s. c. 16 S. E.

attempting to couple such car to Rep. 435.


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about the yards, — the reason being that he and the engineer are
servants of different masters. 22

§5077. Carpenter in Switch- Yard and Engineer.— A carpenter
employed in a railway switch-yard is not a fellow servant of a loco-
motive-engineer. 28

§ 5078. Yard Conductor and Fireman. — A yard conductor whose
duty it is to take care of a switch in the railway-yard is a fellow
servant of a fireman on a train who is injured by the negligence of
the yard conductor in leaving the switch open. 24

§ 5079. Yardmaster and. Yard-Foreman — It has been held (but-
the view is believed to be untenable) that a railway yardmaster, who
is made responsible for the condition of the yards at the terminus
of a division of the road, who directs the incoming and the starting
of trains, who is authorized to employ and discharge men, but who,
at the same time, is subject to the orders of the superintendent and
trainmaster, — is but a fellow servant of the foreman of a switching-
gang employed in the yard under him. 25

§ 5080. Yardman and Trainmen. — A yardman engaged in sweep-
ing snow from the tracks in the yard, and an engineer and brakeman
engaged in the yard in switching cars, are fellow servants, 60 that if
the yardman is injured by the negligence of the engineer or brake-
man, he cannot recover damages from the company. 26

§ 5081. Yardmaster or Yard-Foreman, and Yard-Helper or Yard-
Hand. — These are generally regarded as fellow servants when working
together in a railway yard, so that if the inferior servant is injured

B Northern Pac. R. Co. v. Craft, "Corcoran v. New York &c. R.

69 Fed. Rep. 124; s. c. 16 C. jC. A. Co., 46 App. Div. (N. Y.) 201; 8.

175; 29 U. S. App. 687. c. 61 N. Y. Supp. 672. But an en-

"Egmann v. East St. Louis 6c. gineer in charge of a road-engine
R. Co., 65 111. App. 345; s. c. on which is temporarily in a railroad-
former appeal, sub nom. East St. yard for the purpose of taking out
Louis &c. R. Co. v. Eggmann, 58 a train, is not a fellow servant of
111. App. 69. the foreman and members of the

24 Parker v. New York &c. R. Co., yard-crew under him, under Tex.

18 R. I. 773; s. c. 30 Atl. Rep. 849. Rev. Stat. 1895, art. 4560g: Mis-

18 Thomas v. Cincinnati Ac. R. souri &c. R. Co. v. Whitelock, 16

Co., 97 Fed. Rep. 245. To the same Tex. Civ. App. 176; s. c. 41 S. W.

effect, see Cincinnati &c. R. Co. v. Rep. 407. Compare Texas &c. R.

Gray, 41 C. C. A. 535; s. c. 101 Fed. Co. v. Harrington, 62 Tex. 597

Rep. 623; 50 L. R. A. 47 (general (where a contrary conclusion is

yardmaster and a yard-foreman are reached, but at common law),
fellow servants).


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

through the negligence of the superior one, there can be no recovery
from the company. 27

§ 5082. Yard-Superintendent and Foreman of Yard-Engines. — In

Texas a yard-superintendent is not a fellow servant with the fore-
man of yard-engines engaged in switching cars about the yard.* 8

§ 5083. Car-Inspector and Yardmaster Over Him. — It has been
held that a yardmaster, and an employ^ under him charged with the
duty of inspecting cars in the yard to ascertain if they are in con-
dition to move, are not fellow servants; so that if, before such em-
ploy6 has finished his inspection, the yardmaster negligently orders
the train on which the inspector is engaged to move out, by reason
of which the inspector is killed, the railroad company is liable. 29

§ 5084. Engine-Repairer and Yardman Assisting Him. — A yard-
man who was injured while assisting an engine-repairer to remove
a heavy piece of machinery from an engine, through the breaking of
a plank which the engine-repairer had placed in position and on
which they were both standing, could not recover damages from the
master, he and the engine-repairer being fellow servants, and the
defect in the plank not being patent or known to the company. 30

§ 5085. Switch-Tender and Other Employes. — It has been held that
the duty of opening and closing a switch in the ordinary operation
of a railroad is not one of the personal, absolute, or unalienable
duties of the master. 81 Thus, a switch-tender is a fellow servant with
a locomotive-engineer; 82 and with a person employed by a railroad

"Moody v. Hamilton Man. Co., of damages from the company for

159 Mass. 70; s. c. 34 N. E. Rep. the negligence of the foreman in

185; Fraker v. St Paul Ac. R. Co., permitting cars to be backed with

32 Minn. 54 (yard-foreman who is great force against other cars which

subject to the orders of a yardmas- the helper is engaged in coupling

ter is a fellow servant of one em- in the night-time: Armstrong v.

ployed in a yard in moving cars). Oregon &c. R. Co., 8 Utah 420; &

See also,' Chicago &c. R. Co. v. c. 32 Pac. Rep. 693.

Scheming, 4 111. App. 533. Com- M Texas &c. R. Co. v. Tatman, 10

pare North Chicago Rolling Mills Tex. Civ. App. 434; s. c. 31 S. W.

Co. v. Monka, 4 111. App. 664; Rep. 333.

Farquhar v. Alabama &c. R. Co., "Driscoll v. Chicago Ac. R. Co.,

78 Miss. 193; s. c. 28 South. Rep. 97 111. App. 668.

850 (yardmaster riding on a flat- M Chicago &c. R. Co. v. Scheming,

car attached to a switching-engine 4 111. App. 533.

is a fellow servant of the en- " St. Louis &c. R. Co. v. Need-

gineer). But in one jurisdiction, a ham, 63 Fed. Rep. 107; s. c. 25 L. R-

yard-foreman is held not to be a A. 833; 11 C. C. A. 56.

fellow servant of his helper, who "Farwell v. Boston &c. R. Co., 4

is subject to his orders, so as to Mete. (Mass.) 49; s. c. 2 Thomp.

preclude a recovery by the helper Neg. (1st ed.), p. 924.


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[2d Ed.

company to tend a chain across a street for the purpose of prevent-
ing travel over the track when trains are about to pass, but who oc-
casionally signals trains with his flag. 83 For like reasons, a fire-
man on an engine engaged in hauling freight-cars into the yard of
a railroad company has been held to be in the same general business
with another servant of the company whose duties were usually con-
fined to the roundhouse of the company within the yard, but who
.occasionally acted as a substitute for the switch-tender** A similar
conclusion was reached where a brakeman was injured by the negli-
gence of a section-boss whose duty it was to tend the switch at a
particular station. 85 In some jurisdictions, however, it is considered
that the person whose duty it is to tend a switch, even though the
duty be temporary, — as in the case of a brakeman whose duty it is
to throw a switch to admit his train to a side-track, and to close the

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 145 of 165)