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power to direct or control in the department in which they are en-
gaged. 204 Under this statute it is held that the negligence of a su-
perior .servant of a railway company, causing injury to an employ6
under his control, renders the company liable, although the negli-
gence was in respect to the performance of work of the kind done
by the injured employ^, and not in the performance of any duty
imposed by law on the company. 205 It is helct in another case that
an engineer and a brakeman on the same train, engaged in the pro-
motion of a single object — the ihoving of the train, and associated
together in such a way that they will naturally be careful of the
train and of each other, are fellow servants in the same department;
and neither can recover damages for injuries inflicted on him through
the negligence of the other. 206 But a locomotive-engineer having
authority to direct or control a fireman on such locomotive is held
to be a superior servant of a brakeman on another train. 201

§5305. Under the Pennsylvania Statute Making Employes of
Third Persons Engaged about the Premises of a Railroad Company
Fellow Servants with the Employes of the Railroad Company. — A

peculiar rule exists in Pennsylvania. In 1868, the Legis-
lature of that State passed an act providing that, in case
an injury is sustained by any person "while lawfully en-
gaged or employed on or about the roads, works, depots
and premises of a railroad company, or in or about any train or car
therein or thereon, of which pompany such person is not an employ6,
the right of action and recovery in all such cases against the company
shall be such only as would exist if such person were an employ6"
of such railroad company. 208 Under this statute the following per-
sons have been held to be fellow servants of the employes of the rail-
road company, and not entitled to recover for injuries sustained

m Bates' Ann. Ohio Stat. (2d ed.), Ohio St 130; s. c. 37 N. E. Rep. 11;

§ 3365-22; 87 Ohio Laws, p. 160. 31 Ohio L. J. 247; 1 Toledo Leg. N.

**Peirce v. Van Dusen, 78 Fed. 48. For other cases construing this

Rep. 693; s. c. 47 U. S. App. 339; statute, see Railway Co. v. Erick,

24- C. C. A. 280. 51 Ohio St. 146; s. c. 37 N. E. Rep.

"•Hill v. Lake Shore &c. R. Co., 128; Snyder v. Railway Co., 60 Ohio

22 Ohio C. C. 291; s. c. 12 Ohio C. St. 487; s. c. 54 N. E. Rep. 475.
D. 241. m 2 Pepper & L. Pa. Dig., col.

m Railroad Co. v. Margrat, 51 3957, § 137; Pa. Laws 1868, p. 68.


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

through their negligence, under the circumstances noted: — Where
a teamster was hauling iron to a car in railroad-yard8%and was in-
jured through the negligence of the flagman in signalling him to
cross the tracks, or through the negligence of the engine crew in
not sounding any warning-signals; 209 where a boy employed by a
coal-dealer was engaged in unloading cars standing upon a siding
constructed by the dealer on his own land, and was injured by rea-
son of the neglect of the railroad employes to change the switch
leading to the siding from the main track, allowing several cars to
enter from the main track upon the siding and collide with the car
on which the boy was employed; 210 where the plaintiff was engaged
in unloading his own goods from the cars of the company, permis-
sion to do which had been granted by the agent of the company,
and employes of the company negligently shunted some cars on to
the siding and against the car in which the plaintiff was working; 211
where an employ^ of the owners of a furnace, in charge of care
owned by the latter and used in carrying coal over a railroad under
a traffic arrangement by which his employers were to furnish their
own cars, with a man to take charge of them, was injured by reason
of the excessive speed of the train around a curve ; 212 where a person
in the employ of contractors who were building a railroad-culvert,
while engaged in wheeling brick, was struck and killed by a train
going at a rapid rate of speed which gave no signal of its ap-
proach ; 21S where a servant in the employ, of a coal company, while
engaged in unloading cars of coal which stood on a track in the com-
pany's yard, laid and maintained by the defendant railroad com-
pany, which owned the cars and moved them to such points as
the coal company directed, was injured through the negligence of
the employes of the railroad company in violently shunting other
cars against the car on which he was engaged; 214 where there were
two railroad-tracks on the grounds of a rolling-mill company, one
alongside the rolling-mill and the other parallel therewith and. seven
feet distant, the cars on the grounds belonging to the railway com-
pany and being operated by its employes to such points in the yard
ae the rolling-mill company directed; and a servant in the employ

*» Baltimore &c. R. Co. v. Colvin, «* Miller v. Cornwall R. Co.. 154

118 Pa. St. 230; s. c. 12 Atl. Rep. Pa. St. 473; s. c. 26 Atl. Rep. 779.

337; 10 Cent Rep. 583; 20 W. N. C. na Fleming v. Pennsylvania R

(Pa.) 531. Co., 134 Pa. St. 477; s. c. 19 AU.

»°Cumings v. Pittsburgh &c. R. Rep. 740; 26 W. N. C. (Pa.) 180.

Co., 92 Pa. St. 82. m Peplinski v. Pennsylvania R.

ttl Ricard v. North Pennsylvania Co., 203 Pa. St. 52; s. c. 52 Atl. Rep.

R. Co., 89 Pa. St. 193; Woodward 32.
and Trunkey, JJ., dissenting.


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of the rolling-mill company, who was loading iron into a car on the
outer track, started from the car to go to the mill for more iron,
and was struck and injured by a car which the railroad company's
employes had negligently shunted on to the other track. 215 But it has
been held that an employ^ of an iron company, engaged in unloading
cars, was not a fellow servant with the employes of the railroad com-
pany engaged in shifting the cars into the iron company's stock-house,
through whose negligence he was injured, although both were under
the direction of the foreman of the iron company ; since they were not
employed on or about the premises of the railroad company, or "in or
about any train or car therein or thereon," within the meaning of
the statute; 216 that a car-inspector in a railroad-yard was not a
fellow servant with an employ^ of another company delivering a car
in such yard for transportation by the company by which the car-in-
spector was employed, where the delivery of such car had been com-
pleted by putting it upon a siding and the trainhands of the other com-
pany had started back, but, upon discovering that it was not fully
upon the siding, returned with their engine and negligently moved
the car, injuring the plaintiff; 217 and that a brakeman on an engine
used by a steel company in shifting cars upon sidings running from
a railroad-track upon its land, was not the fellow servant of an em-
ploys of a railroad company through whose negligence he was in-
jured, where a car had been delivered by the railroad company and
been unloaded, and the plaintiff, at the direction of the yard-boss of
the steel company, was engaged in moving the car from the receiving-
track to the scales, — such work not being connected with the work
of the railroad within the meaning of the statute. 218 Where street-
railway tracks of the defendant were used also by another company
by which the plaintiff * was employed as a conductor, it was held that
the road was the road of the company using it, and that an employ^

"* Weaver v. Philadelphia. Ac. R. so as to make them its employes

Co., 202 Pa. St. 620; s. c. 52 Atl. and make an injury caused by them

Rep. 30. to an employs of the latter com-

119 Noll v. Philadelphia &c. R. Co., pany the negligence of a coemploye

163 Pa. St. 504; s. c. 30 Atl. Rep. for which there can be no recovery,

157. where, in the customary course of

m Vannatta v. Central R. Co., 154 business between the two roads,

Pa* St. 262; s. c. 32 W. N. C. (Pa.) cars delivered by the former to the

288; 24 Pitts. L. J. (N. S.) 22; 26 latter road are to be placed upon

Atl Rep. 384. This case also holds the siding in the yard of the latter

that train-hands engaged in deliver- to constitute a delivery: Vannatta

ing a car to the yard of another v. Central R. Co., supra, s

road for transportation over the "Spisak v. Baltimore &c. R. Co.,

latter, are not, in the work beyond 152 Pa. St. 281; s. c. 31 W. N. C.

the actual point of connection be- (Pa.) 297; 23 Pitts. L. J. (N. S.)

tween the two roads, engaged in the 319; 25 Atl. Rep. 497.
performance of a duty of the latter

VOL. 4 THOMP. NEG.— 74 1169

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

of the lessee company, lawfully engaged in its service, could not be
said to be employed about the road of the other company; hence,
where the plaintiff was injured through the negligence of a motor-
man in the employ of the lessor company in failing to turn a switch,
he was not a fellow servant with such motorman, and was entitled
•to recover damages from the lessor company. 219

§ 5306. Under the South Carolina Constitution and Civil Code. —

The Constitution of South Carolina of 1895 makes every railroad
company liable for injuries to employes resulting from the negli-
gence of a superior agent or officer, or of a person having the right
to control or direct the services of the injured employe, and also
for injuries resulting from the negligence of a fellow servant engaged
in a different department of labor, or on another train, or about a
different piece of -work; and provides that the General Assembly
may extend its provisions to any other class of employes. 220 In pur-
suance of the power thus granted the General Assembly subsequently
extended the provisions of the above section to street-railway com-
parties. 221 A railroad company was held liable in an action under
the above section of the Constitution where it appeared that the
plaintiff, with sixteen others, was loading rails on a car, under the
directions of a foreman, who was charged with the duly of giving
orders to the men when to take hold of the rails, when to raise them,
and when to throw them on the car, and the plaintiff was injured by
the negligent failure of such foreman to countermand an order to
throw a rail on a car; since the foreman had a right to direct the
manner of the plaintiff's services; and the fact that the foreman and
the plaintiff were fellow servants, engaged in the same department of
labor, was no defense. 222

§5307. Under the Texas Statute.— The Texas Fellow-Servant
Act of 1891 was superseded by the Act of 1893, and the latter was
superseded, presumably, by the Act of 1897, which makes every per-
son, receiver, or corporation operating a railway or street-railway
liable for injuries sustained by any employ^ while engaged in oper-

"• Kelly v. Union Traction Co., Constitution of 1895 renders a rail-

199 Pa. St. 322; s. c. 49 Atl. Rep. road company liable for injuries to

70; aff'g s. c. 9 Pa. Dist. Rep. 69. an employe, caused by the negli-

"• S. Car. Const 1895, art. 9, § 15. gence of a superior employe" in the

m S. Car. Civ. Code 1902, § 2848; course of his employment, is

23 Laws, p. 716. proper: Bussey v. Charleston Ac

m Rutherford v. Southern R. Co., R. Co., 52 S. Car. 438; s. c. 11 Am-

56 S. Car. 446; s. c. 35 S. E. Rep. & Eng R. Cas. (N. S.) 474; 30 S. E.

136. An instruction which states, Rep. 477.
in effect, that the South Carolina


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[2d Ed.

ating the cars, locomotives or trains, by reason of the negligence of any
other employe; and, apart from the operation of trains, etc., defincis
vice-principals to be employes entrusted with the authority of super-
intendence, control or command of other employes, or with the author-
ity to direct any other employ6 in the performance of any duty of
such employ^ ; and further declares that all persons who are engaged
in the common service, and who while so employed are in the same
grade of employment and are doing the same character of work or
service and are working together at the same time and place and at the
same piece of work and to a common purpose, are fellow servants. 22 *

"Sayles' Tex. Civ. Stat. 1897,
arts. 4560f-4560i; Acts Spec. Seas.
1897, p. 14. Vnder the Act of 1891
it was held: — That an engineer in
charge of an engine doing switch
work was not a fellow servant with
a fireman on another engine also
doing switch work in the same yard,
where the crews of the two engines
were not working together: Mas-
terson v. Galveston &c. R. Co. (Tex.
Civ. App.) f 42 S. W. Rep. 1001 (no
off. rep.) ; writ of error denied, 91
Tex. 383; s. c. 43 S. W. Rep. 875.
That a brakeman and an engineer
on the same train were not fellow
servants* not being of the same
grade, — especially where the engi-
neer exercised such authority as
would make him a vice-principal:
San Antonio &c. R. Co. v. Bowles
(Tex. Civ. App.), 30 S. W. Rep. 89,
727 (no off. rep.). But in a later
case under the same Act it was held
that rules of a 'railroad company
entrusting an engineer with discre-
tion to give a signal notifying a
brakeman to apply brakes, did not
give the former "authority to di-
rect" the latter in the performance
of his duties, nor prevent their be-
ing in the same grade of the em-
ployment, and hence fellow serv;
ants: Texas Cent. R. Co. v. Frazier)
90 Tex. 33; s. c. 36 S. W. Rep. 432;
A Am. ft Eng. R. Cas. (N. S.) 664;
rev'g s.c. (Tex. Civ. App.), 34 S.
W. Rep. 664; 3 Am. ft Eng. R. Cas.
(N. S.) 381. In another case it ap-
peared that the plaintiff, while en-
gaged In the construction of a
bridge, was injured by the slipping
of a plank, which had been negli-
gently laid without fastening it. The
plaintiff had been engaged in other
work at the time it was laid, but
was working with the employes who

laid it when he was injured. It was
held that, although the plaintiff
was not a fellow servant with such
employes at the time the plank was
laid, he became their fellow servant
on joining them, and thdt, as the
negligence consisted also in allow-
ing the plank to remain unfastened,
it was continuing, and was that of
the plaintiff's fellow servants, for
which the company was not liable:
Allen v. Galveston &c. R. Co., 14
Tex. Civ. App. 344; s. c. 37 S. W.
Rep. 171. Under the Act of 189S
it was held: — That a brakeman on a
train which had been made up and
was about ready to leave the yard
and start on its regular trip, was
not a fellow servant with employes
in charge of a switch-engine which
was not at the time engaged in any
service or performing any act in
reference to such train, they not
being "engaged in the common
service": Patterson v. Houston Ac.
R. Co. (Tex. Civ. App.), 40 S. W.
Rep. 442 (no off. rep.). That a
night crew engaged in loading ties
from a stack on to cars on 6ne
track were not fellow servants with
another crew engaged during the
daytime in unloading ties from cars
on another track on the opposite
side of the stack, and placing them
on the stack, not being "working
together, at the same time and
place, and to a common purpose":
Texas &c. R. Co. v. Echols, 17 Tex.
Civ. App. 677; s. c. 41 S. W. Rep.
488. But that an engineer and
switchman in the same . crew, en-
gaged in switching cars under a
common foreman, were fellow serv-
ants, though employed and dis-
charged by different * superiors: ,
Gulf &c. R. Co. v. Warner, 89 Tex.
475; s. c. 35 S. W. Rep. 364.


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

Under this statute a switchman employed in coupling cars while a
train is being made up in the yard is held to be "operating" such cars
or train, and entitled to recover for an injury suffered while so en-
gaged; 224 but the contrary conclusion was reached in the case of a
section-hand engaged in unloading a car, and injured by the negli-
gence of a fellow servant. 225 A foreman of a gang of track-repairers
is held to be within the protection of that section of the act relating
to the operation of cars, locomotives, and trains, notwithstanding he is
a vice-principal under the provisions of another section ; and he -may
recover for injuries resulting from the negligence of the men under
his control while engaged in repairing the track. 228 * A section*
hand returning from work to the tool-house on foot to place his
tools therein, was not a fellow servant with other section-hands car-
rying tools to the tool-house on a hand-car, since they were not doing
• the same character of work, — the meafis of doing the work .being
held to differentiate its character; nor was he a fellow servant with
them on the theory that they were working at the same piece of
work, since he was carrying his tools without their aid. 226 A fore-
man in charge and control of a bridge-gang is held to be a vice-prin-
cipal as toward a member of such gang, engaged under his orders
in a separate piece of work; and the company is liable to such work-
man for injuries sustained through the negligence of such foreman
in the performance of his duty. 227 Since this statute makes a rail-
road company liable for injuries sustained by any employe* thereof,
while engaged in operating its cars, by reason of the negligence of
any other employ^ whether a fellow servant or not, it was error
to instruct that the plaintiff could not recover for the death of an
employ^, who was thrown from a hand-car by reason of its being
suddenly stopped by a fellow servant, if the jury believed that the
brake was not applied under the order, direction, or signal of the
foreman. 228

"* Missouri Ac. R. Co. v. Baker ""Lawrence v. Texas Cent R.

(Tex. Civ. App.), 58 S. W. Rep. Co., 25 Tex. Civ. App. 293; 8. c. 61

964 (no off. rep.). On the trial of S. W. Rep. 342.

this action the court sustained a **a Texas Ac. R. Co. v. Smith, 114

demurrer to defendant's special Fed. Rep. 728; s. c. 52 C. C. A. 360.

plea that plaintiff was injured "•Long v. Chicago Ac. R. Co., 94

through the negligence of a servant Tex. 53; s. c. 57 S. W. Rep. 802.

for whose negligence defendant was m Texas Ac. R. Co. v. Carlin, 111

not responsible, instead of receiving Fed. Rep. 777; s. c 49 C. C. A. 605

proof and determining whether the (foreman failed to see and remove

evidence brought plaintiff within a heavy iron maul from the bridge,

the statute. The error, if any, was in consequence of which a train

held to be immaterial; since, under struck the maul and threw it

plaintiff's, pleadings, he could not against plaintiff, who was standing

recover without proving such facts: twenty feet away).

Missouri Ac. R. Co. v. Baker, supra. ** Perez v. San Antonio Ac. R. Co..


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§ 5308. Under the Utah Statute.— The Utah Fellow-Servant Act
declares that all persons in the employ of any person, firm, or corpo-
ration, who are. entrusted with the authority of superintendence, con-
trol, or command of other employes, or with the authority to direct
any other employ^ in the performance of any duties of such employ^,
are vice-principals. 229 Under this act it is held that the master is
liable for the negligent act of such a vice-principal, resulting in in-
jury to any employ^, whether it is committed in the discharge of the
positive duties of the master or not, and whether it is committed
while he is exercising his authority to command or superintend
others, or not. 280 The statute also declares that all persons who are
in the same grade of service, and are working together at the same
time and place and to a common purpose, neither of such persons
being entrusted by their common master with any superintendence
or control over his fellow employes, are fellow servants with each
other. Accordingly, it was held that a miner was not a fellow serv-
ant with one whose duty it was to manage and operate a cage by
which the miners were conveyed in and out of the mine. 281

§5309. Under the Wisconsin Statute. — The Wisconsin statute
makes every railroad company liable for injury to any employ^ while
engaged in operating, running, riding upon or switching trains, en-
gines or cars, and while engaged in the performance of his duty as
such employ6, where the injury is caused by the negligence of any
other employ^, officer or agent of the company in the discharge of,
or for failure to discharge, his duties as such employe, officer or
agent. 282 This statute has been held to apply so as to make the

28 Tex. Civ. App. 255; s. c. 67 S. W. whether servants are fellow serv-

Rep. 137. ants is for the jury: Braegger v.

*»Utah Rev. Stat. 1898, §§ 1342, Oregon Ac. R. Co., 24 Utah 321; s.

1343; Laws 1896, p. 99. This Act c. 68 Pac. Rep. 140.

was held to be constitutional in "Wis. Stat. 1898, § 1816; Laws

Dryburg v. Mercur Gold Min. Ac. 1893, ch. 220. The statute of 1875,

Co., 18 Utah 410; s. c. 5 Am. Neg. ch. 178, which made railroad com-

Rpp. 253; 55 Pac. Rep. 367. parties liable for the negligence of

280 Southern Pac. Co. v. Schoer, any employs in respect to his duty,

114 Fed. Rep. 466; s. c. 52 C. C. A. causing injury to any other em-

268; 57 L. R. A. 707. ployS while in the line of his duty,

** Jenkins v. Mammoth Min. Co., was held to be valid, though it did

24 Utah 513; s. c. 68 Pac. Rep. 845. not impose a similar liability upon

An instruction which states to the other corporations, nor limit such

Jury who are fellow servants as de- liability to injuries connected with

fined by the statute, and that the the operation of the road; so that

plaintiff cannot recover if the jury a section-hand who was injured

find that he was injured through while at work in a yard driving a.

the negligence of a fellow servant, spike into a tie, through the negli-

— is a sufficient instruction as to gence of those in charge of a switch-

the doctrine of the negligence of engine in backing cars upon him

fellow servants, as the question, without warning, was entitled to


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

company liable where an employ^ who was assisting to separate by
hand a freight-car from other freight-cars, was killed by the neg-
ligence of other employes in running a train against such freight-
cars; 288 and where an employ^ engaged in propelling a hand-car was
injured through the negligence of coemployes in running another
hand-car into it, — the phrase "or other cars" beyig held to include
hand-cars. 234 Where the defendants, a railroad construction com-
pany, were engaged in grading a line of railroad-track which was
to be straightened, and the railroad company furnished them with
work-trains, and with employes to operate the same, who were paid
and controlled by the defendants for the time being, it was held that
the defendants, while engaged in such work, were within the scope
and purpose of the statute ; so that a brakeman on a work-train, who
was injured by reason of the negligence of the engineer, could recover
against the construction company. 285 But it was held that a railroad
company was not liable where a car-repairer, while engaged in repair-
ing a car, was injured by the negligence of a switchman in causing a
car to be kicked against the car in which the car-repairer was at work;

damages: Ditberner v. Chicago Ac.
R. Co., 47 Wis. 138. This statute
was repealed by Laws 1880, ch. 232.
Under the statute of 1889, ch. 438,
making railroad companies liable
for "the negligence of any train-
despatcher, telegraph-operator, su-
perintendent, yardmaster, conductor
or engineer, or any other employ^,
who has charge or control of any
stationary signal, target point,
block or switch,'' it was held that
such a company was liable for an
injury to a brakeman while he was
making a coupling, caused by the
engineer's negligently increasing
the speed of the train, when the
brakeman had given no signal to do
so and was in a position of ex-
treme danger, but free from fault:
Kruse v. Chicago Ac. R. Co., 82
Wis. 568; s. c. 52 N. W. Rep. 755.
So, the company was liable for an
injury to a yard workman who was
struck by a passenger-car kicked
Tapidly into the yard in the dark,
due to the negligence of a brakeman
who accompanied the car in riding
on the rear instead of the front of
the car, and not warning the plain-
tiff: Promer v. Milwaukee &c. R.
Co., 90 Wis. 215; s. c. 63 N. W. Rep.
90. The foreman of a railway re-

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 159 of 165)