US SUPREME COURT DECISIONS

A common day laborer in the employ of a railroad company who, while working for the company under the order and direction of a section "boss" or foreman on a culvert on the line of the company's road, receives an injury by and through the negligence of the conductor and of the engineer in moving and operating a passenger train upon the company's road is a fellow-servant with such engineer and such conductor in such a sense as exempts the railroad company from liability for the injury so inflicted. chanrobles.com-red

Page 154 U. S. 350

This was an action by Hambly to recover damages for personal injuries sustained by him while acting as helper to a crew of masons engaged in building a stone culvert for the defendant company on its right of way, about two miles west of Jamestown, in North Dakota. Upon the trial of the case before a jury, the following facts were proven and admitted to be true by both parties, viz.:

"That the plaintiff was a common laborer in the employ of the defendant company, and at the time he received the injury which is the ground of this action, he was in the service of the defendant, working under the direction and supervision of a section boss or foreman of the defendant company, assisting in building a culvert on defendant's line of railroad, and that while so engaged, the injury complained of, and for which he sues, was inflicted upon him by being struck by a locomotive of a moving passenger train on the defendant's road, said train belonging to the defendant and being operated by a conductor and engineer in its employ, and that the injury he received by coming in contact with said passenger train, and which is the injury sued for in this cause, was due solely to the misconduct and negligence of the conductor and locomotive engineer on said passenger train in operating and conducting the movements of said train."

Upon the foregoing facts, defendant prayed for an instruction to the jury that the engineer and conductor of the passenger train were fellow servants with the plaintiff, and hence that the defendant company was not liable for the injury received by the plaintiff through their negligence. Upon the question of giving such instruction the opinions of the judges were opposed, and the circuit judge, being of opinion that the plaintiff and said conductor and engineer were not fellow servants in the sense that would exempt the defendant from liability, so instructed the jury, which returned a verdict for the plaintiff in the sum of $2,500, upon which judgment was entered. Defendant thereupon moved for a new trial, upon the granting of which the judges were opposed in opinion. The motion was denied, and the judges certified the following questions for the opinion of this Court: chanrobles.com-red

Page 154 U. S. 351

"1. Whether, on the admitted facts of this case, hereinbefore set out, the jury should have been instructed that the plaintiff and said conductor and engineer were fellow servants, and that they should return a verdict for the defendant."

"2. Whether, on the facts hereinbefore set out, the court should have set aside the verdict and judgment in the case, and granted defendant a new trial."

"3. Whether the plaintiff, who was a common day laborer in the employ of the defendant, which is a railroad company owning and operating a line of railroad, and who was at the time he received the injury complained of working for the defendant under the order and direction of a section boss or foreman on a culvert on the line of defendant's road, was a fellow servant with the engineer and conductor operating and conducting a passenger train on the defendant's road in such a sense as exempted the defendant from liability for an injury inflicted upon plaintiff by and through the negligence of said conductor and engineer in moving and operating said passenger train. "

Page 154 U. S. 355