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Commentaries on the law of negligence in all relations online

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the negligence of co-servants, for
which the master is not liable) ;
Northern Pac. R. Co. v. Hambly.
154 U. S. 349; s. c. 38 L. ed. 1009;
14 Sup. Ct. Rep. 983 (track-laborer
injured by a passenger-train
deemed a fellow servant of the en-
gineer and conductor operating the
same); Van Winkle v. Manhattan
R. Co., 32 Fed. Rep. 278; McPeck
v. Central Vt. R. Co., 79 Fed. Rep.
590; s. c. 50 U. S. App. 27; Wright
v. Southern R. Co., 80 Fed. Rep.
260; Van Wickle v. Manhattan R.
Co., 32 Fed. Rep. 278 (engineer and
track-repairer of an elevated rail-
road are fellow servants).

* Filbert v. Delaware ftc. Canal
Co., 121 N. Y. 207; s. c. 23 N. K.
Rep. 1104; 30 N. Y. St Rep. 494.
So, it has been held that the man-
ager of a locomotive used locally
by a lumber company in transport-
ing its lumber and supplies, and
another servant employed by the
company to keep its track in proper
condition and repair, and who is
daily transported on such locomo-
tive to and from his work, are fel-
low servants, and such track-re-
pairer cannot recover for injuries
inflicted on him by the negligence
of the manager of the locomotive;
since the statute changing the fel-
low-servant rule in Georgia ap-
plies only to railway companies:
Ellington v. Beaver Dam Lumber
Co., 93 Ga. 53; s. c. 19 S. E. Rep. 21.
See post, § 5293.

Digitized by



§5106. Track-Walker and Trainmen. — Decisions are met with
holding that a track-walker, whose duty it is to pass to and fro over
a given section of the track to see that it is in a safe condition and
free from obstructions, is a fellow servant with trainmen on passing
trains; so that neither can recover damages from the master for
injuries sustained through the negligence of the other. 20 Thus, it
has been held that a track-walker, engaged in travelling on a rail-
road velocipede for the purpose of summoning a section-crew to
assist in clearing away a wreck, is, under the common-law rule, a
fellow servant of an engineer in charge of an engine travelling over
the same road, in the same direction, for the purpose of reaching .
the nearest turntable, so as to turn his engine and return to assist at
the wreck; 26 that a track-walker, injured by a lump of coal falling
from a carelessly loaded tender, is a fellow servant with the coal-
heaver and fireman who load the tender; 27 and that a "ganger" on
an English railway, whose duty it is to inspect the track and see that
decayed tree-nails are renewed, is a fellow servant with a guard on
a train. 28 The general view, however, is that a track-walker is not
a fellow servant of trainmen upon passing trains, so as to excuse the
company from liability if they negligently run him down. 29 Nor
will the company be excused from liability for injuries to trainmen
on passing trains, resulting from the negligent performance of his
duties by a track-walker. 80

§5106. Track-R<pairer, Fireman and Coal-Loader. — A track-re-
pairer has been held not to be a fellow servant of a fireman or of
one employed to load the tenders with coal. 81

§ 5107. Track-Repairer and Switchman. — A track-rep&irer, in the -
discharge of his duty of keeping the track in repair, discharges a
primary, absolute and unassignable duty of the company, and if he
neglects to discharge it, or discharges it in a negligent manner,

"Coon v. Syracuse Ac. R. Co., 5 "Schlereth v. Missouri Pac. R.

N. Y. 492. Co., 115 Mo. 87; s. c. 21 S. W. Rep.

"Stephani v. Southern Ac. R. Co., 1110 (track-walker was walking 1

19 Utah 196; s. c. 6 Am. Neg. Rep. along track to his place of work);

222; 14 Am. & Eng. R. Cas. (N. S.) Sullivan v. Missouri &c. R. Co., 97

575; 57 Pac. Rep. 34. Mo. 113; s. c. 10 S. W. Rep. 852.

" Schultz v. Chicago &c. R. Co., 67 » Bean v. Western Ac. R. Co., 107

Wis. 616; s. c. 58 Am. Rep. 881. N. C. 731; s. c. 12 S. E. Rep. 600;

" Waller v. South-Eastern R. Co., Smith v. Erie R. Co., 67 N. Jr L.

2 Hurl. & Colt 102; s. c. 7 Jur. 636; s. c. 52 Atf. Rep. 634.
(N. S.) 501; 32 L. J. (Exch.) 205; "Union Pac. R. Co. v. Erickson,

11 Wkly. Rep. 731; 8 L. T. (N. S.) 41 Neb. 1; s. c. 29 L. R. A. 137; 59

325. N. W. Rep. 347.


Digitized by LjOOQLC

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

whereby a switchman is killed or injured, damages for the wrong
can be recovered from the company. 82

§ 5108. "Wreckmarter" and Section-Hand or Laborer. — This offi-
cial is generally charged with the duty of visiting wrecks, of taking
command of all persons engaged in clearing away the same, includ-
ing such general officers as the roadmaster, and of removing the
wrecked cars to a car-shop for repairs. He is deemed the vice-prin-
cipal of the company with respect to section-hands engaged under
him in the work of clearing away a wreck. 88

§ 5109. Section-Hands and Servants in Charge of a Construction-
Train. — It has been held that a railroad section-hand is not a fellow
servant with men in charge of a construction train, unless they are
cooperating in furthering a particular business of the common mas-
ter. Thus, it was held that the cooperation of section-hands and the
crew of a construction-train in placing ballast upon the road-bed,
ceased when they returned to their former and separate duties; so
that a section-hand who had resumed his labor as such in loading
iron on a car on a side-track, and was struck and killed by the con-
struction-train while he was so engaged, was not a fellow servant
with the crew of such train. 84 . Another case holds that the men
engaged upon a railroad work-train, and section-hands engaged upon
a hand-car, in keeping the road-bed in order, are fellow servants
although under separate foremen. 85

* Southerland v. Northern Pac. fellow servants of a switchman in-

R. Co., 43 Fed. Rep. 646 (section- jured by stumbling upon such coal

foreman left a pile of ashes between while coupling cars: Cincinnati Ac

the rails in a yard where the in- R. Co. v. Mealer, 50 Fed. Rep. 725.

jured switchman worked); Missouri "Wabash Ac. R. Co. v. Hawk, 121

Pac. R. Co. v. Bond, 2 Tex. Civ. 111. 259; s. c. 10 West. Rep. 137; 12

App. 104; s. c. 20 S. W. Rep. 930 N. E. Rep. 253; Nail v. Louisville

(switchman killed by stepping on Ac. R. Co., 129 Ind. 260; s. c. 28 N.

a pile of cinders negligently left by E. Rep. 183 ; 44 Alb. L. J. 230 ( fore-

a track-foreman near the track); man of crew engaged in clearing

Louisville Ac. R. Co. v. Ward, 10 C. away debris from bridge) ; Borg-

C. A. 166; s. c. 61 Fed. Rep. 927 man v. Omaha Ac. R. Co., 41 Fed.

(trackmen in ballasting the track Rep. 667. Compare Beilfus v. Lake

negligently left a dangerous hole, Shore Ac. R. Co., 29 Hun (N. T.)

into which a switchman stepped to 556, where the contrary was held,

his hurt). Opposed to the foregoing "Chicago Ac. R. Co. v. Kelly, 28

doctrine is a holding to the effect 111. App. 655; s. c. aff'd, 127 111.

that section-men whose duty it is 637; 21. N. E. Rep. 203.

to remove pieces of coal and ob- M Thorn v. Pittard, 62 Fed. Rep.

structions from a railroad-track are 232; a. c. 10 C. C. A. 352.


Digitized by LjOOQLC


[2d Ed.

§ 5110. Section-Foreman and Water-Boy. — A water-boy is not, it
has been held, a fellow servant with a section-foreman, within the
meaning of the law governing the negligence of employes. 36

§ 5111. Motorman and Track-Repairer. — A motorman of an elec-
tric car and a track foreman have been held to be fellow servants,
so that for an injury to the motorman due to such foreman's negli-
gent failure to keep the track in repair, there can be no recovery. 87

§5112. Foreman of Track-Eepairers in a Steel-Mill and Men
Working There. — A foreman of a gang of men engaged in repairing
the car-tra6ks in the works of a steel converting mill, and the em-
ployes engaged in the mill in making steel from iron, are not fellow
servants where their duties never bring them together, and where
the "con-association doctrine" prevails. 88

Article VIII. Station-Agents.


5115. Station-agent and trainmen.

5116. Section-foreman on the one

hand, and station-agent,


train-conductor and brake-
man on the other.

5117. Station-agent and section-

§ 5115. Station-Agent and Trainmen. — With respect to the ques-
tion whether a railway station-agent is to be deemed a fellow servant
with men employed in running the trains of the same company, we
find the same difference of opinion that we have found with respect
to telegraph-operators, who, indeed, are in most cases at way stations,
the station-agents. In some jurisdictions it is held that such a sta-
tion-agent is a fellow servant with trainmen; 1 while in other juris-
dictions it is held that he is not. 2

"Wilson v. Banner Lumber Co.,
108 La. 590; s. c. 32 South. Rep.

37 Rittenhouse v. Wilmington St.
R. Co., 120 N. C. 544; s. c. 26 S. E.
Rep. 922.

"Joliet Steel Co. v. Shields, 146
111. 603; s. c. 34 N. B. Rep. 1108;
aff'g s. c. 45 111. App. 453.

1 Brown v. Minneapolis Ac. R. Co.,
31 Minn. 553 (is a fellow servant
with an engineer running a locomo-
tive on the tracks in and about the
station); Toner v. Chicago Ac. R.
Co., 69 Wis. 188; s. c. 31 N. W. Rep.
104; 33 N. W. Rep. 433 (is a fellow

servant of a brakeman) ; Galves-
ton Ac. R. Co. v. Farmer, 73 Tex.
85; s. c. 11 S. W. Rep. 156 (is a fel-
low servant of a brakeman on a
freight-train — case where station-
agent negligently allowed improp-
erly-loaded car to be put in train —
no recovery.

2 Atchison Ac. R. Co. v. Seeley, 54
Kan. 21; s. c. 37 Pac. Rep. 104
(with respect to the duty of load-
ing cars, station-agent held not to
be a fellow servant with a brake-
man on such cars) ; Louisville Ac.
R. Co. v. Jackson, 106 Tenn. 438;
s. c. 61 S. W. Rep. 771 (not a fel-


Digitized by


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

§5116. Section-Foreman on the One Hand, and Station-Agent,
Train-Conductor and Brakeman on the Other. — These have been held
to be fellow servants; so that, where the section-foreman is injured,
through the negligence of the others, there can be no recovery. 8

§ 5117. Station-Agent and Section-Hand. — A station-agent, in
discharging his duty of placing cars upon side-tracks, is not a fellow
servant of a section-hand upon a work-train who is injured while
the train is passing such station in consequence of the negligence of
the agent in leaving a car upon a side-track so near the main track
as to result in a collision. 4

Article IX. Master Mechanic, Division Superintendent,



5119. Master mechanic and other


5120. Division superintendent and

other railway employes.


5121. Roadmaster, and engineers
and trainmen of trains.

5122. Roadmaster and section-hand.

5123. Roadmaster and member of


§ 5119. Master Mechanic and Other Employes. — These are gen-
erally deemed not to be fellow servants, 1 especially where the master
mechanic has general superintendence and charge, with power to
employ and discharge men; 2 but in a few cases they are held to be
fellow servants. 8

low servant with the conductor of
a freight-train so as to prevent his
recovering damages from the com-
pany for injuries caused by the neg-
ligence of the agent in leaving a
"pinch-bar" lying on the track) ;
Gulf Ac. R. Co. v. Calvert, 11 Tex.
Civ. App. 297; s. c. 32 S. W. Rep.
246 (under a statute defining who
are and who are not fellow ser-
vants, station-agent not a fellow
servant of the members of a train-
crew employed at the station in
coupling cars on their train).

•Miller v. Michigan Ac. R. Co.,
123 Mich. 374; s. c. 82 N. W. Rep.

4 St. Louis Ac. R. Co. v. Biggs, 53
111. App. 550.

1 St. Louis Ac. R. Co. v. Harper,
44 Ark. 524 (master mechanic and
foreman of railway-shops not a fel-
low servant of a watchman injured
by negligence of the master me-
chanic); Tabler v. Hannibal Ac. R.
Co., 93 Mo. 79; s. c. 11 West. Rep.


458; 5 S. W. Rep. 810 (master me-
chanic travelling on a wrecking-
train with full control of the men
thereon, not a fellow servant of the
men, although a conductor has su-
pervision of the train) ; Cooper v.
Pittsburgh Ac. R. Co., 24 W. Va. 37
(master mechanic and brakeman
on a freight-train).

* Taylor v. Evansville Ac. R. Co.,
121 Ind. 124; s. c. 22 N. E. Rep.
876; 6 L. R. A. 584; 41 Am. A Eng.
R. Cas. 437; 7 Rail. A Corp. L. J.
125; 41 Alb. L. J. 173 (had entire
control, with full authority to em-
ploy and discharge and to select
and change machinery) ; Missouri
Pac. R. Co. v. Sasse (Tex. Civ.
App.), 22 S. W. Rep. 187 (no off.
rep.) (master mechanic in charge
of a roundhouse chargeable with
knowledge of a defect in an appli-
ance, causing injury to a workman,
who is not his fellow servant).

"Columbus Ac. R. Co. v. Arnold.
31 Ind. 174 [overruling Fitzpatrick

Digitized by



§ 5120. Division Superintendent and Other Railway Employ** —
A division superintendent of a railroad company who has general
charge and supervision of the company's entire business over his
division, including the control of the movement of all trains, is a •
vice-principal of the company, and it is chargeable with his negli-

§ 5121. Roadmaster, and Engineers and Trainmen of Trains. — A

roadmaster or a division roadmaster of a railway company, some-
times called a master' mechanic, represents the company in the per-
formance of- his duties of inspecting the road, and the rolling-stock
employed thereon, and in keeping the same in suitable repair. If,
therefore, he is negligent in the discharge of this duty, whereby an-
other employ6 of the company is killed or injured, the company will
be liable, 5 — as where a trainman is injured by a switch defectively
constructed under the supervision of the roadmaster; 6 or where he
negligently removes the staffs from the brakes of freight-cars, where-
by an engineer is killed. 7 But it has been held that he is the fellow
servant of an engineer and fireman who are injured by his negli-
gence in misplacing a switch. 8 So, a roadmaster has been deemed a
fellow servant of the engineer and conductor of a train upon which
he rides in the performance of his duties, and the company is not
liable to him for an injury caused by their negligence.*

§ 5122. Boadmaster and Section-Hand. — A roadmaster (or an as-
sistant roadmaster) is, with respect to his duties of superintending,
commanding and controlling, generally regarded as the vice-princi-
pal of the railway company and not as the fellow servant of section-
men, especially where they work under their own proper foreman,
and the roadmaster possesses the power to employ and discharge. 10

v. New Albany Ac. B. Co., 7 Ind. M Palmer v. Michigan Ac. R. Co.,

436]; Hard v. Vermont Ac. R. Co., 93 Mich. 363; a. c. 53 N. W. Rep.

32 Vt. 473 (master mechanic and 397; 17 L. R. A. 636; Harrison v.

locomotive-engineer). Detroit Ac. R. Co., 79 Mich. 409;

♦Louisville Ac. R. Co. v. Heck, 151 s. c. 44 N. W. Rep. 1034; 7 L. R. A.

Ind. 292; s. c. 50 N. E. Rep. 988. 623; 41 Am. A Eng. R. Cas. 398

• Atchison Ac. R. Co. v. Moore, 31 (section-man was injured by the
Kan. 197. negligence of the roadmaster in or-

6 Rouse v. Downs, 5 Kan. App. dering him to continue work while

549; s. c. 47 Pac. Rep. 982. an engine was approaching, thus

'Browning v. Wabash Ac. R. Co., throwing him off his guard); Gal-

124 Mo. 55; s. c. 27 S. W. Rep. 644. veston Ac. R. Co. v. Delahunty, 53

• Walker v. Boston Ac. R. Co., 128 Tex. 206 (section-man, in assisting
Mass. 8. The opinion in this case in getting a car on the track, in-
does not state why they were fellow jured by the breaking of an old and
servants. worn rope used by direction of the

•Gulf Ac. R. Co. v. Ryan, 69 Tex. roadmaster).
665; s. c. 7 S. W. Rep. 83.


Digitized by LjOOQLC

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

It is, perhaps, to be regretted that the decisions are not unanimous
on this point. One of them holds that a roadmaster having control
of the movements of a work-train and of the trainmen thereon, with
power to employ and discharge them, is, with respect to the move-
ments of the train, a fellow servant of a section-hand on the train
who is injured through a collision. 11 Another assimilates the status
of a roadmaster to that of a mere superior servant or overseer, and,
consequently, makes him the fellow servant of a section-hand. 12

§ 5123. Roadmaster and Member of Wrecking-Gang. — It was held
by one court that a roadmaster of a railway company, who had super-
intendence of the "road department," was not a vice-principal of the
company in such a sense as to render it liable for his negligence
while he was acting as a mere "boss" or foreman of a wrecking-gang, —
his negligence consisting in giving a wrong signal to the engineer
of the wrecking-train, whereby a member of the gang was injured ; 13
but this decision was reversed on the ground that his duties were
generally those of superintendence and not of manual work, and that
the injury to the laborer proceeded from an act which he performed
by virtue of his authority or superintendence, and not merely as a
fellow workman. 14 So, where the trainmaster and roadmaster were
superintending the work of clearing away a wreck, and an employe
was injured from the negligent manner in which a derrick-chain
was fastened to a car, it was held that the negligence was that of the
trainmaster and roadmaster, as vice-principals, and not that of the
fellow servant who fastened the chain. 10

Article X. Various Other Illustrations, Alphabetically


Section Section

5125. Brakemen and other train- 5131. Employes constructing, and

men. employes using a sema-

5126. Brakeman and engineer. phore.

5127. Brakeman and fireman. 5132. Expressmen employed by ex-

5128. Bridge-tender and section- press-company, and serv-

man. ants of railway company.

5129. Car-loader and car-couplers. 5133. Express-messenger and rail-

5130. Car-loader and switchmen. way-train employe's.

"Galveston Ac. R. Co. v. Smith, " Hoke v. St Louis Ac. R. Co, M

76 Tex. 611; s. c. 13 S. W. Rep. 562. Mo. 360.

"Brown v. Winona Ac. R. Co., 27 "Reed v. Missouri Ac. R. Co., 94

Minn. 162; s. c. 38 Am. St. Rep. 285. Mo. App. 371; s. c. 68 S. W. Rep.

" Hoke v. St. Louis Ac. R. Co., 11 364.
Mo. App. 574.


Digitized by LjOOQ l€


[2d Ed.


5134. Fireman and brakeman.

5135. Fireman and other trainmen.

5136. Gripman of cable-car and

crew of wrecking-train.

5137. Guard against train-robbers,

and express-messenger.
6138. Maker-up of trains, and brake-
man and driller.

5139. Porter of palace-car and train-

men of railway company.

5140. Quarryman and trainmen.

5141. Sand-man and other train-



5142. Signal-man on street-railway

and gripman.

5143. Street-railway conductor and


5144. Telegraph-operator and track-


5145. Track-laborer, train-conductor

and track-walker.

5146. Trainmen and other employe's

who are being hauled to
and from their work.

5147. Watchman and conductor or


§ 5125. Brakemen and Other Trainmen. — Brakemen and other men
employed on the same train are fellow servants within the rule under
consideration. 1

§ 5126. Brakeman and Engineer. — A brakeman is a fellow servant
of the engineer in such a sense that if the brakelnan inflicts a negli-
gent injury upon the engineer there can be no recovery of damages
from the company. 2

§ 5127. Brakeman and Fireman. — A brakeman and a fireman, the
latter being engaged in the discharge of his ordinary duty of receiving
signals from the brakeman and repeating them to the engineer, are
co-equal fellow servants, and the railway company is not liable for an
injury to the brakeman, either from the ordinary or the gross negli-
gence of the fireman. 8 So, a brakeman engaged in coupling cars is a
fellow servant with a fireman who dumps ashes upon the track; but
there may be some difficulty in agreeing to the conclusion that he is
also a fellow servant with the sectionmen whose duty it is to remove
the ashes, 4 since the keeping of the track in a safe condition is a pri-
mary duty of the master.

1 Casey v. Louisville Ac. R. Co.,
84 Ky. 79 (laborers at work on a
railroad in transporting dirt on a
small truck to the cars a short dis-
tance away, alternately acting as
brakemen) ; Hayes v. Western R.
Corp., 3 Cush. (Mass.) 270 (brake-
man and another brakeman, to-
gether with conductor) ; Green wald
v. Marquette Ac. R. Co., 49 Mich. 197
(brakeman and fireman); Chicago
Ac. R. Co. v. Howard, 45 Neb. 570;
s. c. 63 N. W. Rep. 872; Ward v.
Chesapeake Ac. R. Co., 39 W. Va.

46; s. c. 19 S. E. Rep. 389; Whit-
wam v. Wisconsin Ac. R. Co., 58
Wis. 408.

*Whalen v. Michigan Ac. R. Co.,
114 Mich. 512; s. c. 4 Det. Leg. N.
653; 72 N. W. Rep. 323.

•Southern R. Co. v. Clifford, 110
Ky. 727; s. c. 23 Ky. L. Rep. Ill;
62 S. W. Rep. 514 (in Kentucky,
Where the doctrine respecting "gross
negligence" prevails) .

*Loranger v. Lake Shore Ac. R.
Co., 104 Mich. 80; s. c. 62 N. W. Rep.


Digitized by


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

§ 5128. Bridge-Tender and Sectionman. — The tender of a railroad
drawbridge, whose duty it is to open the draw to allow boats to pass,
and close it so that trains can pass over the bridge, is a fellow servant
of a section-hand who is injured, while riding on a hand-car, by the
negligence of the bridge-tender in leaving the lever of the drawbridge
in such a position that it strikes the car. 5

§ 5129. Car-Loader and Car-Couplers. — The servants of a railway
company who load its cars and the brakemen who couple and uncouple
them are fellow servants ; so that the company will not be liable for
the negligence of its car-loaders in so loading a car with timbers that
the timbers project over the end of a car so as to cause the death of a
.brakeman while attempting to couple the cars. 6

§ 5130. Car-Loader and Switchmen. — Under the "coii-aasociation
doctrine" which obtains in Illinois, switchmen at work in a coal-yard,
engaged in switching cars from place to place, are not in such direct
co-operation with other employes of the same company engaged in
loading the cars wit£ coal as to create the relation of fellow servant
between them, so as to relieve the employer from liability for an in-
jury to a car-loader caused by the negligence of one of the switchmen. 7

§ 5131. Employls Constructing, and Employls TTsing a Semaphore.

— Employes of a railway company who construct for the company a
semaphore are discharging a primary or absolute duty of the master,
under a principle already considered, 8 and are, hence, not fellow serv-
ants of employes who use the semaphore after it has been constructed ;
for example, of an employ^ who is required to climb upon it, in order
to operate it, and is injured through a defect in its construction. 9

§ 5132. Expressman Employed by Express Company, and Servants
of Railway Company. — A man employed and paid by an express com-
pany, who also takes care of the baggage-car in which the express
matter is transported, and who acts as baggagemaster in handling
the baggage, the express company not charging the railway company
therefor, is not a fellow servant of the trainmen of the railway com-
pany in charge of the train on which he is riding, because they are
servants of different masters. 10

6 Illinois Ac. R. Co. v. Bishop, 76 • Ante, § 4923, et seq.

Miss. 758; s. c. 25 South. Rep. 867. • Welty v. Lake Superior Terminal

•Bailey v. Delaware Ac. Canal Ac. Co., 100 Wis. 128; s. c. 75 N. W.

Co., 27 App. Div. (N. Y.) 305; s. c. Rep. 1022.

50 N. Y. Supp. 87. X0 Cobb v. St Louis Ac. R. Co., 149

7 Winona Coal Co. v. Holmquist, Mo. 609; s. c. 13 Am. A Eng. R. Cas.

51 111. App. 507. (N. S.) 632; 50 S. W. Rep. 894.

1084 v

Digitized by LjOOQLC


§ 5133. Express-Messenger and Railway-Train Employed. — It has
been held that an express-messenger employed solely by an express
company to transfer express-packages over a railroad, is not a fellow
servant of the railway employ6s, although he also acts as baggageman
under an agreement with the express company and the railway com-
pany, which defines his baggage duty, and although a rule of the rail-

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 148 of 165)