US SUPREME COURT DECISIONS

Whether the engineer and fireman of a locomotive engine, running alone on a railroad and without any train attached are fellow servants of the company, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former is not a question of local law, to be settled by the decisions of the highest court of the state chanrobles.com-red

Page 149 U. S. 369

in which a cause of action arises, but is one of general law, to be determined by a reference to all the authorities, and a consideration of the principles underlying the relations of master and servant.

Such engineer and such fireman, when engaged on such duty are, when so considered, fellow servants of the railroad company, and the fireman is precluded by principles of general law from recovering damages from the company for injuries caused, during the running, by the negligence of the engineer.

Chicago, Milwaukee & St. Paul Railway v. Ross, 112 U. S. 377, explained and distinguished.

John Baugh, defendant in error, was employed as a fireman on a locomotive of the plaintiff in error, and while so employed was injured, as is claimed, through the negligence of the engineer in charge thereof. He commenced a suit to recover for these injuries in the Circuit Court of the United States for the Southern District of Ohio.

The circumstances of the injury are these: the locomotive was manned by one Hite, as engineer, and Baugh, as fireman, and was what is called in the testimony a "helper." On May 4, 1885, it left Bellaire, Ohio, attached to a freight train which it helped to the top of the grade about twenty miles west of that point. At the top of the grade, the helper was detached, and then returned alone to Bellaire. There were two ways in which it could return in conformity to the rules of the company: one on the special orders of the train dispatcher at Newark, and the other by following some regular scheduled train, carrying signals to notify trains coming in the opposite direction that the helper was following it. This method was called in the testimony "flagging back." On the day in question, without special orders and not following any scheduled train, the helper started back for Bellaire, and on the way collided with a regular local train, and in the collision Baugh was injured. Baugh had been in the employ of the railroad company about a year, had been fireman about six months, and had run on the helper, two trips a day, about two months. He knew that the helper had to keep out of the way of the trains, and was familiar with the method of flagging back.

No testimony was offered by the defendant, and at the close of plaintiff's testimony, the defendant asked the court to direct a nonsuit, which motion was overruled, to which ruling an exception was duly taken. In its charge to the jury, the court gave this instruction:

"If the injury results from negligence or carelessness on the part of one so placed in authority over the employee of the company who is injured as to direct and control that employee, then the company is liable."

To which instruction an exception was duly taken. The jury returned a verdict for the plaintiff for $6,750, and upon this verdict judgment was entered, to reverse which the railroad company sued out a writ of error from this Court. chanrobles.com-red

Page 149 U. S. 370