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Commentaries on the law of negligence in all relations online

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210; 4 Am. & Eng. R. Cas. (N. S.)
419 (foreman in charge of an extra
gang of railroad section-hands is
not a chief or superintendent of a
separate and distinct branch of
business of the company so as to
make him a vice-principal) ; Hast-
ings v. Montana &c. R. Co., 18 Mont.
493; s. c. 46 Pac. Rep. 264 (injury
to section-hand while carrying
hand-car across track under orders
of the foreman, who negligently
failed to warn him of approach of a
train — no recovery) ; Atchison &c.

1070



R. Co. v. Martin, 7 N. Mex. 158;
s. c. 34 Pac. Rep. 536 (although he
hires the men and directs where
they shall work upon the section,
where he has nothing to do with
paying them and works in the same
way they do) ; Barringer v. Dela-
ware &c. Canal Co., 19 Hun (N. Y.)
216 (section-boss knew of a defect
in a hand-car, but failed to report
it to the track-master to be re-
paired, and section-hand was in-
jured — company not liable because
they were fellow servants); Ell v.
Northern Pac. R. Co., 1 N. D. 336;
s. c. 12 L. R. A. 97 (the sole test is
the character of the act per-
formed); Spancake v. Philadelphia
Ac. R. Co., 148 Pa. St. 184; s. c. 1
Pa. Adv. Rep. 485; 23 Atl. Rep.
1006; Kinney v. Corbin, 132 Pa. St
341 (negligence of the foreman of
a gang of railroad laborers in re-
quiring them to use a chain which
he knows is defective, is that of a
fellow servant) ; Weger v. Pennsyl-
vania R. Co., 55 Pa. St 460; North-
ern Pac. R. Co. v. Charless, 162 U.
S. 359; s. c. 40 L. ed. 999; 16 Sup.
Ct. Rep. 848 (negligence of a sec-
tion-boss or foreman in running a
hand-car at too high a rate of speed
while carrying his gang of men is
not the neglect of any duty which
the master is bound to perform, but
Is that of a fellow servant of the
member of the gang); Coyne v.
Union Pac. R. Co., 133 U. S. 370;
s. c. 33 L. ed. 651; 7 Rail. & Corp.
L. J. 434; 10 Sup. Ct Rep. 382:
Wright v. Southern R. Co., 80 Fed.
Rep. 260 (act of section-foreman in
directing a hand to endeavor to
save a hand-car from being struck
by a rapidly approaching train is
that of a fellow servant) ; Northern
Pac. R. Co. v. Peterson, 162 U. S.
346; s. c. 16 Sup. Ct Rep. 843; 40
L. ed. 994 (boss of a small gang of
ten or fifteen men engaged in mak-
ing repairs upon a railroad over a
distance of three sections, aiding
the regular gang upon each section
as occasion demands, is a fellow
servant of another member of the
gang, and not a superintendent of
a separate department) ; Lochbaum



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ILLUSTRATIONS IN RAILWAY SERVICE.



[2d Ed.



which we discovered when treating of other foremen and superin-
tendents. It will be futile to attempt to reconcile the decisions, be-
cause they do not divide upon any consistent line of thought or doc-
trine. Many courts hold that a railway section-master, section-fore-
man, or section-boss, is, with respect to the* men working under him,
the vice-principal or alter ego of the railway company, so that if one
of the section-hands is killed or injured through the negligence of
such section-master, section-foreman, or section-boss, the company will
be liable to pay damages. 2 Some of the decisions put it on the mere
ground that he is the superior servant, with power to command the
control. 8 Others lay stress on the fact that the superior servant pos-
sesses the power to employ men, 4 or to employ and discharge men, 6 as



v. Oregon R. Ac. Co., 104 Fed. Rep.
852; s. c. 44 C. C. A. 220; Deavers
v. Spencer, 70 Fed. Rep. 480; s. c.
25 U. S. App. 411; 17 C. C. A. 215
(track-foreman wholly subordi-
nated to a superior, without power
permanently to discharge or employ
workmen without the supervisor's
consent, and who works with the
hands under him, is a fellow serv-
ant with a track-hand in working
a jack for raising the track, al-
though he is in supervision of the
gang when he is with it carrying
out the supervisor's instructions).

a Bloyd v. St. Louis &c. R. Co., 58
Ark. 66; Justice v. Pennsylvania
Co., 130 Ind. 321; Russ v. Wabash
&c. R. Co., 112 Mo. 45; s. c. 18 L. R.
A. 823; Claybaugh v. Kansas City
&c. R. Co., 56 Mo. App. 630; McDer-
mott v. Hannibal &c. R. Co., 87 Mo.
285; Rowland v. Missouri ftc. R.
Co., 20 Mo. App. 463; Hutson v.
Missouri ftc. R. Co., 50 Mo. App.
300; Clowers v. Wabash ftc. R. Co.,
21 Mo. App. 213; Banks v. Wabash
ftc. R. Co., 40 Mo. App. 457; Ha-
worth v. Kansas City ftc. R. Co., 94
Mo. App. 215; s. c. 68 S. W. Rep.
Ill (under Arkansas statute) ; Al-
lison v. Southern R. Co., 129 N. C.
336; s. c. 40 S. E. Rep. 91 (foreman
knew that train was late, and failed
to send flagman forward to protect
hand-car, and ordered the plaintiff
back to get the hand-car off the
track after he had jumped to save
himself) ; Patton v. Western ftc. R.
Co., 96 N. C. 455; Louisville ftc. R.
Co. v. Bowler, 9 Heisk. (Tenn.)
866; Sweeney v. Gulf ftc. R. Co., 84
Tex. 433.

•Atchison ftc. R. Co. v. Vincent,



56 Kan. 344; s. c. 43 Pac. Rep. 251
(company liable for negligence of
foreman in giving the word to
throw down a rail, which was being
carried, before the injured section-
man had stepped to a place of safe-
ty) ; McDermott v. Hannibal *&c. R.
Co., 87 Mo. 285; Stephens v. Hanni-
bal ftc. R. Co., 96 Mo. 207; s. c. 9
S. W. Rep. 589; Union Pac. R. Co.
v. Doyle, 50 Neb. 555; s. c. 70 N. W.
Rep. 43 (notwithstanding that he
had no authority to employ or dis-
charge hands, and that the section-
hand in question was hired by the
section-boss, likewise subject to the
orders of the foreman in respect to
work on the gravel-train) ; Patton
v. Western ftc. R. Co., 96 N. C. 455
(if the section-boss has power to
command, discharge and employ la-
borers, the master is liable for his
negligence in the exercise of such
authority); Chattanooga Elec. R.
Co. v. Lawson, 101 Tenn. 406; s. c.
12 Am. ft Eng. R. Cas. (N. S.) 669;
47 S. W. Rep. 489 (the negligence
of a track-foreman who was acting
as motorman of an electric car, in
failing to stop the same in time to
prevent an accident to a track-hand
who had attempted, pursuant to his
direction, to board the same while
in motion, and was in a perilous
position, was official, and not per-
8onal).

* Claybaugh v. Kansas City &c. R.
Co., 56 Mo. App. 630; Clowers v.
Wabash &c. R. Co., 21 Mo. App. 213;
Northern Pac. R. Co. v. Peterson,
4 U. S. App. 574; s. c. 2 C. C. A.
157; 32 Am. L. Reg. 340; 51 Fed.
Rep. 183.

ft Russ v. Wabash &c. R. Co., 112

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

well as to direct their operations; 6 and others, pursuing a principle
already referred to, 7 consider the nature of the act or omission, and
whether it was one within the scope of the authority of the superior
servant to direct and supervise as the representative of the master:'*
and others so hold under the requirements of statutes. 9 And clearly,
in so far as the section-master performs a primary or absolute duty
of the master, 10 or a part of such duty, in supervising the railway-
tracks to the end of promoting the safety of the employes, the railway
company is liable for his negligence. 11

§ 5103. Section-Master, Section-Foreman, or Section-Boss, and
Trainmen. 118 — Whether the person in command of gangs of track-re-
pairers is a fellow servant of men employed in running trains over the
track must depend, to some extent, upon the point of view from
which the question is approached. Recurring to a former distinction, 11



Mo. 45; s. c. 18 L. R. A. 823; 20 S.
W. Rep. 472; Logan v. North Caro-
lina R. Co., 116 N. C. 940; s. c. 21
S. E. Rep. 959; Johnson v. South-
ern R. Co., 122 N. C. 955; s. c. 29
S. B. Rep. 784; Gulf &c. R. Co. v.
Wells (Tex.), 16 S. W. Rep. 1025
(no off. rep.) ; s. c. rev'd on rehear-
ing, on other grounds, 81 Tex. 685;
17 S. W. Rep. 511; Sweeney v. Gulf
&c. R. Co., 84 Tex. 433; s. c. 19 S.
W. Rep. 555.

• Patton v. Western Ac. R. Co., 96
N. C. 455 (power to command, em-
ploy and discharge).

T Ante, § 4918.

• Dayharsh v. Hannibal &c. R. Co.,
103 Mo. 570; s. c. 15 S. W. Rep.
554; Illinois Cent. R. Co. v. Josey,
110 Ky. 342; s. c. 22 Ky. L. Rep.
1795; 61 S. W. Rep. 703; 54 L. R.
A. 78 (section-foreman, whose duty
it was, in going over the road with
his men, to control the brakes on
the hand-car, was, in performing
that duty, the superior of the men
on the car, and not their fellow
servant). For example, it has been
held that a section-foreman, who
has the power to employ and dis-
charge section-hands, is a vice-prin-
cipal for that purpose; but, in
transporting the men to and from
their work, he and the men are fel-
low servants; so that the master is
not liable for an injury to one of
the men through the foreman's neg-
ligence while thus employed: Jus-
tice v. Pennsylvania Co., 130 Ind.

1072



321; s. c. 11 Rail. & Corp. L. J. 221;
30 N. E. Rep. 303. The Circuit
Court of the United States has held
that a section-foreman is a fellow
servant of one of the section-crew
of which he is in charge: Kansas
&c. R. Co. v. Waters, 70 Fed. Rep.
28; s. c. 36 U. S. App. 31; 16 C. C.
A. 609. The Supreme Court of the
United States has held that the fact
that a section-foreman gives an or-
der to a laborer who is with him
on a hand-car, that he shall not
look back to watch for a train, and
assurance that the foreman himself
will watch and give warning of any
danger, does not make the master
liable for an injury to the laborer
resulting from the negligence of the
foreman in failing to watch for the
train: Martin v. Atchison £c. R
Co., 166 U. S. 399; s. c. 41 L. ed.
1057; 17 Sup. Ct Rep. 603.

• St. Louis &c. R. Co. v. Rickman,
65 Ark. 138; s. c. 45 S. W. Rep. 56;
post, § 5278, et seq.

10 Ante, § 4923.

"Babcock v. Old Colony R. Co.,
150 Mass. 467; s. c. 23 N. E. Rep.
325. Another case holds that the
foreman of a section-gang, In
charge of a hand-car, is not, in re-
spect to the condition of a wooden
handle to the car, a fellow servant
with those under him: Banks v.
Wabash Ac. R. Co., 40 Mo. App. 458.

"a See ante, § 5035.

"Ante, § 4923, et seq.



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ILLUSTRATIONS IN RAILWAY SERVICE. [2d Ed.

it must be concluded that in so far as the section-foreman is negligent
in the performance of his duty of keeping the track in suitable repair
and free from dangerous obstructions, he represents the railway com-
pany, because that is a primary or absolute duty of the master; so
that, if a trainman is killed or injured through" his negligent failure
to perform this duty, the railway company will be liable. 18 On the
other hand, if an injury is inflicted upon a section-foreman through
the negligence of a trainman, or of the trainmen, then the question
will rest upon different constructions and will present more difficulty.
Those engaged in the mere operation of a railway-train, or, in fact, of
any department of the business of a master, are often regarded as fel-
low servants of those with whom such operatives come in contact.
Nevertheless, in the case of trainmen on the one hand and track-re-
pairers on the other hand, there is no "con-association"; 14 they are not
brought into contact with each other in such a sense that they can
observe each other's conduct and habits, and report them to the com-
mon master; nor have they a ready opportunity of checking each
other's negligence or correcting each other's faults. The rule which
makes the master liable for an injury inflicted by one of his servants
in one distinct department of service, upon another of his servants en-
gaged in another and distinct department of such service, operates, in
the theory of some of the courts at least, in favor of a right of action
in such a case. 10 Other courts — in some cases without regard to prin-

u Kansas City &c. R. Co. v. Webb, man v. Oregon &c. R. Co., 21 Or.
97 Ala. 157; s. c. 11 South. Rep. 888 530; s. c. 28 Pac. Rep. 625 (section-
(failure to discover and remedy a foreman a vice-principal with re-
defect in a switch; train derailed; spect to the duty of giving notice
engineer injured — company liable) ; of a dangerous obstruction on the
St. Louis ftc. R. Co. v. Weaver, 35 track to those engaged on a re-
Kan. 412; Clifford v. Old Colony pair-train); Bateman y. Peninsular
ftc. R. Co., 141 Mass. 564; Drymala R. Co., 20 Wash. 133; s. c. 12 Am.
v. Thompson, 26 Minn. 40 (compa- ft Bng. R. Cas. (N. S.) 678; 54 Pac.
ny liable for negligence of a sec- Rep. 996 [disapproving Chicago Ac.
tion-foreman in taking up a rail R. Co. v. Murphy, 53 111. 336; s. c.
without setting proper signals to 5 Am. Neg. Rep. 48]; Hulehan v.
warn an approaching train, where- Green Bay ftc. R. Co., 64 Wis. 520;
by a trainman is Injured) ; Lewis s. c. 32 N. W. Rep. 529 (company
v. St. Louis Ac. R. Co., 59 Mo. 495; liable for injury to its brakeman
s. c. 21 Am. Rep. 385; Hall v. Mis- from obstructions on the tracks,
souri ftc. R; Co., 74 Mo. 298 (com- caused by the negligence of its sec-
pany liable to switchman for in- tion-boss). Circumstances under
juries received from loose iron rail which an accident to a brakeman,
negligently left by section-foreman due to a defect In the track, was
in path used by switchmen in the ascribed to the negligence of the as-
discharge of their duties) ; Wright sistant roadmaster, and not to that
v. Southern R. Co., 123 N. C. 280; of the section-foreman: Anderson
s. c. 12 Am. ft Eng. R. Cas. (N. S.) v. Michigan &c. R. Co., 107 Mich.
717; 31 S. E. Rep. 652; Fisher v. 591; s. c. 2 Det. Leg. N. 725; 65 N.
Oregon &c. R. Co., 22 Or. 533; s. c. W. Rep. 585.
16 L. R. A. 519; 12 Rail, ft Corp. u Ante, § 4971.
L. TJ. 139; 30 Pac. Rep. 425; Well- "Peoria &c. R. Co. v. Rice, 144

vot,. 4 thomp. neg.— 68 1073

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

ciple — take a different view. 15 * Under a principle already stated, 11
the trainmen may become vice-principals of the company with respect
to the duty of repairing a car, the failure to perform which duty results
in the death of a section-foreman. 17 Again, it is plain that the two
classes of employes may be temporarily thrown into such con-associa-
tion as will, on principle, make them fellow servants of each other.
Thus, it has been held that a section-master and a trackman are fellow
servants of a trainman, where all three are engaged in looking after
and in removing obstructions from the track created by a storm. 18 And
there are decisions which ascribe the relation of fellow servants to a
section-foreman and the conductor of a passing train through "whose



111. 227; 8. c. 33 N. E. Rep. 951 (sec-
tion-foreman, injured by negligence
of locomotive-engineer in failing to
observe a signal-flag placed on a
bridge on which the foreman was
working, was not a fellow .servant
of such engineer, since they were
employed in different departments
and wholly separate and discon-
nected from each other) ; Dobson
v. New Orleans &c. R. Co., 52 La.
An. 1127; s. c. 27 South. Rep. 670
(foreman of a gang of laborers
hauling dirt with a train of flat-
cars is not a fellow servant of the
conductor of the train) ; Omaha Ac.
R. Co. v. Krayenbuhl, 48 Neb. 553;
s. c. 4 Am. & Eng. R. Cas. (N. S.)
483; 67 N. W. Rep. 447; Union Pac.
R. Co. v. Callaghan, 6 C. C. A. 205;
s. c. 56 Fed. Rep. 988 (foreman of
a repair-gang riding upon a repair-
train is not a fellow servant of the
conductor of such train, so as to
prevent recovery for injuries
caused by the conductor's failure
to stop the train to receive orders
respecting a defective bridge).
The fact that a section-foreman,
who sustained Injuries on a bridge
owing to the negligence of a loco-
motive-engineer in failing to ob-
serve a flag placed on a bridge,
had a right to flag the train, and
that it was the duty of the engineer
to obey the signal, was not regard-
ed as tending to establish the rela-
tion of fellow servants between the
section-foreman and the engineer:
Peoria &c. R. Co. v. Rice, 144 111.
227; s. c. 33 N. E. Rep. 951.

"a Card v. Eddy, 129 Mo. 510;
8. c. 28 S. W. Rep. 979 (flreman
on a running train is a fellow
servant of a section-foreman in de-
livering from the train as it passes

1074



a message for the foreman tied
around a piece of coal). Compare
Card v. Eddy (Mo.), 24 S. W. Rep.
746 (no off. rep.) ; and see contra,
Chicago &c. R. Co. v. Moranda, 93
111. 302.

16 Ante, § 4923, et seq.

11 The proposition affirmed by an
authoritative court on this point is
that where trainmen noticed and en-
deavored to repair a freight-car
door, which was hanging by one top
corner only, and failed to repair it,
but continued to use the car without
reporting its condition, the railway
company is responsible for their
negligence, resulting in the death of
a section-foreman, who was struck
by the door swinging outward with
the motion of the train in passing
him, though the condition of the
car was not communicated to any
employ^ of the company occupying
the position of master or vice-prin-
cipal: Chicago &c. R. Co. v. Cullen,
187 111. 523; s. c. 58 N. E. Rep. 455;
aff'g 8. c. 87 111. App. 374.

"Wellman v. Oregon Ac. R. Co..
21 Or. 530; s. c. 28 Pac. Rep. 625.
On this principle, a section-foreman
has been regarded as a fellow serv-
ant of trainmen while being trans-
ported on a train *to or from his
work. Section-master so riding is
a fellow servant of the engineer,
and, if injured by the engineer's
negligence, cannot recover: Wright
v. Northampton &c. R. Co., 122 N.
C. 852; s. c. 10 Am. & Eng. R. Cas.
(N. S.) 151; 29 S. E. Rep. 100 [but
compare Union Pac. R. Co. v. Cal-
laghan, 6 C. C. A. 205; s. c. 56 Fed.
Rep. 988] ; Southern Pac. Co. v. Mc-
Gill (Ariz.), 44 Pac. Rep. 302 (no
off. rep.).



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ILLUSTRATIONS IN RAILWAY SERVICE.



[2d Ed.



negligence the foreman is injured. 19 So, the men who have been en-
gaged in repairing a switch may be regarded as discharging a primary
or absolute duty of the railway company, within the meaning of a rule
already considered, 20 so as not to be deemed fellow servants of a
brakeman who is injured by reason of his foot being caught in a hole
left by them while digging around a switch. 21

§ 5104. Section-Hands, Track-Repairers or Track-Laborers, and
Trainmen. 213 — What has been said with respect to the relation subsist-
ing between section-master, section-foreman, or section-boss, on the one
hand, and trainmen on the other, will equally apply in the case of
section-men or track-laborers, — that is to say, persons engaged in
repairing the track, — on the one hand, and trainmen on the other;
and we shall find a similar difficulty in reconciling all the decisions.
They are 22 or they are not 28 fellow servants of each other; and you



"Elliott v. Chicago Ac. R. Co., 5
Dak. 523; s. c. 3 L. R. A. 363; 41
N. W. Rep. 758; Palko v. Central
R. Co., 9 Kulp (Pa.) 550.

20 Ante, § 4923, et aeq.



* Vautrain v. St Louis &c. R. Co.,
8 Mo. App. 538.

a a See ante, § 5035.

"Fagundes v. Central Pac. R.
Co., 79 Cal. 97; s. c. 3 L. R. A. 824;



"Chicago &c. R. Co. v. Shannon,
43 111. App. 540 (no "con-associa-
tion"); Chicago &c. R. Co. v. Mo-
randa, 93 111. 302 (track-repairer
not a fellow servant of fireman who
injures him by throwing a lump of
coal from the tender of the en-
gine); Peoria &c. R. Co. v. Johns,
43 111. App. 83; Chicago Ac. R. Co.
v. Eaton, 96 111. App. 570; s. c.
aff'd. 194 111. 441; 62 N. E. Rep.
784 (do not cooperate in same line
of employment, and trackman per-
forms one of the absolute duties of
master) ; Union Pac. R. Co. v.
Geary, 52 Kan. 308; s. c. 34 Pac.
Rep. 887 (track-repairer killed by
being thrown from a car loaded
with ties by the sudden starting of
the train without any signal or
warning — company liable); Chesa-
peake &c. R. Co. v. Venable, 111 Ky.
41; s. c. 23 Ky. L. Rep. 427; 63 S.
W. Rep. 35; Swadley v. Missouri
Pac. R. Co., 118 Mo. 268; s. c. 24
S. W. Rep. 140 (not a fellow serv-
ant of those in charge of the regu-
lar freight and passenger trains) ;
McKenna v. Missouri Pac. R. Co.,
54 Mo. App. 161; Schlereth v. Mis-
souri &c. R. Co., 115 Mo. 87; s. c.
19 S. W. Rep. 11&4; Parker v. Han-
nibal Ac. R. Co., 109 Mo. 362; s. c.
18 L. R. A. 802; 50 Am. & Eng. R.
Cas. 521; 19 S. W. Rep. 1119; 35



Cent L. J. 187; 46 Alb. L. J. 286
(reversing a judgment for plaintiff
and granting a new trial; three
judges holding that section-men en-
gaged in ballasting the track are
in a common employment with
trainmen on a train which hauls
the ballast, and who unload it;
three judges holding that they are
not in a common employment; and
the deciding vote for reversal and
a new trial being cast upon the
ground that the evidence, though
tending to show that the gangs
were independent and under sepa-
rate foremen, and hence not fellow
servants, — did not show it clearly) ;
New York &c. R. Co. v. Lambright,
5 Ohio C. C. 433; Southern Pac. Go.
v. Ryan (Tex. Civ. App.), 29 S. W.
Rep. 527 (no off. rep.); Missouri
&c. R. Co. v. Bond, 2 Tex. Civ. App.
104; Torian v. Richmond Ac. R.
Co., 84 Va. 192; s. c. 4 S. E. Rep.
339; Howard v. Delaware &c. Canal
Co., 40 Fed. Rep. 195; s. c. 6 L. R.
A. 75; 41 Am. & Eng. R. Cas. 473;
Northern Pac. R. Co. v. Charless,
51 Fed. Rep. 562; s. c. 3 C. C. A.
380; 51 Am. & Eng. R. Cas. 198
(not a fellow servant of trainmen
running a special train at an un-
usual rate of speed around a
curve) ; Garrahy v. Kansas City
&c. R. Co., 25 Fed. Rep. 258.

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

can take your choice. It lias been held that a railroad employ^ en-
gaged in making repairs on a pit between the tracks, who negligently
leaves it uncovered, by reason of which another employ^, in attempt-
ing to uncouple cars, falls into it and is injured, is a fellow servant of
the latter, who cannot recover against the company for such negli-
gence. 24



21 Pac. Rep. 437; Gormley v. Ohio
&c. R. Co., 72 Ind. 31 (hand-car run
over by freight-train, through neg-
ligence of engineer, killing laborer
thereon — no recovery) ; Ohio &c. R.
Co. y. Collarn, 73 Ind. 261; s. c. 38
Am. Rep. 134; 8 Cent. L. J. 12; 7
Repr. 143; Clifford v. Old Colony
&c. R. Co., 141 Mass. 564; Pennsyl-
vania R. Co. v. Wachter, 60 Md.
395 (injury to trackman by failure
of competent and carefully-selected
trainmen to expose headlight on a
foggy morning); Harrison v. De-
troit ftc. R. Co., 79 Mich. 409; b. c.
44 N. W. Rep. 1034; 7L.R.A. 623;
41 Am. ft Eng. R. Cas. 398; Connel-
ly v. Minneapolis Ac. R. Co., 38
Minn. 80; s. c. 35 N. W. Rep. 582
(Injury to trackman by negligence
of engineer and brakeman); Col-
lins v. St Paul ftc. R. Co., 30 Minn.
31; Foster v. Minnesota ftc. R. Co.,
14 Minn. 360; Parker v. Hannibal
ftc. R. Co., 109 Mo. 362; s. c. 18 L.
R. A. 802; 50 Am. ft Eng. R. Cas.
521; 19 S. W. Rep. 1119; 35 Cent
L. J. 187; 46 Alb. L. J. 286 (revers-
ing a judgment for plaintiff and
granting a new trial; three judges
holding that section-men engaged
in ballasting the track are in a com-
mon employment with the trainmen
on a train which hauls the ballast,
and who unload it; three judges
holding that they are not in a com-
mon employment; and the deciding
vote for reversal and a new trial
being cast upon the ground that the
evidence, though tending to do so,
did not show plainly that the gangs
were independent and under sepa-
rate foremen, proof of which state
of facts would justify a verdict for
plaintiff); Corbett v. St. Louis ftc.
R. Co., 26 Mo. App. 621; Hastings v.
Montana Ac. R. Co., 18 Mont. 493; s.
c. 46 Pac. Rep. 264 (section-hand and
locomotive-engineer) ; Filbert v. Del-
aware ftc. Canal Co., 121 N. Y. 207
(employs repairing pit between
tracks negligently left it uncovered,
and another employe 1 was injured
thereby while coupling cars) ; Mele

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v. Delaware ftc. Co., 39 N. Y. St. Rep.
153; s. c. 14 N. Y. Supp. 630; Boldt
v. New York ftc. R. Co., 18 N. Y.
432; Coon v. Syracuse 6c. R. Co.. 5
N. Y. 492; Whaalan v. Mad River
ftc. R. Co., 8 Ohio St 249; Burrell
v. Gowen, 134 Pa. St. 527; Norfolk
&c. R. Co. v. Nuckols, 91 Va. 193;
s. c. 21 S. E. Rep. 342; Northern Pac.
R. Co. v. Charless, 162 U. S. 359;
s. c. 40 L. ed. 999; 16 Sup. Ct Rep.
848 (the negligence of employes on
a train in failing to give a signal
of its approach, whereby a track-
laborer on a hand-car is injured, is



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