US SUPREME COURT DECISIONS

H. was foreman of an extra gang of laborers for plaintiff in error on its road, and as such had charge of and superintended the gang in putting in ties and assisting in keeping in repair three sections of the road. He had power to hire and discharge the hands (13 in number) in the gang, and had exclusive charge of their direction and management in all matters connected with their employment. The defendant in error was one of that gang, hired by H., and subject, as a laborer, while on duty with the gang, to his authority. While on such duty, the defendant in error suffered serious injury through the alleged negligence of H., acting as foreman in the course of his employment, and sued the railroad company to recover damages for those injuries. Held that H. was not such a superintendent of a separate department, nor in control of such a distinct branch of the work of the company, as would be necessary to render it liable to a co-employee for his neglect, but that he was a fellow-workman, in fact as well as in law, whose negligence entailed no such liability on the company as was sought to be enforced in this action.

The duties of a railroad company, as master, towards its employees, as servants, defined, and it is held that if the master, instead of personally performing these obligations, engages another to do them for him, he is liable for the neglect of that other, which, in such case, is not the neglect of a fellow-servant, but of the master.

The previous cases in this Court on this subject examined, and found to determine chanrobles.com-red

Page 162 U. S. 347

the following points as to the liability of a railroad company for injuries to an employ alleged to have been caused by the negligence of another employee while the injured person was in the performance of his

ordinary duties:

(1) That the mere superiority of the negligent employ in position and in the power to give orders to subordinates is not aground for such liability.

(2) That in order to form an exception to the general law of nonliability, the person whose neglect caused the injury must be one who was clothed with the control and management of a distinct department, and not of a mere separate piece of work in one of the branches of service in a department.

(3) That when the business of the master is of such great and diversified extent that it naturally and necessarily separates itself into departments of service, the persons placed by the master in charge of these separate branches and departments, and given control therein, may be considered, with reference to employees under them, vice-principals and representatives of the master as fully as if the entire business of the master were placed by him under one superintendent.

There is no proof of a separate contract of hiring by which the railroad company assumed obligations towards the defendant in error in excess of those ordinarily assumed by a company towards those employed by it as laborers.

This action was commenced by the plaintiff below (defendant in error) in the United States Circuit Court for the District of Minnesota, Fourth Division, to recover damages against the defendant alleged to have been sustained on account of its negligence. The plaintiff was in the service of the corporation when the injury was sustained.

The defendant denied any negligence and set up that whatever injury plaintiff below sustained was caused by his own neglect and carelessness.

The case came to trial, and evidence tending to show the following facts was given: the plaintiff was a day laborer, and he and several others, in July, 1890, were at a place called "Old Superior," a station on the line of the defendant's road. They had been working on the road at that point, but, work becoming scarce, they had applied to one Mongavin, who was a roadmaster of the defendant, and at that time stationed at Old Superior, for employment. Mongavin told them he had no more work for them there, but he would send them up to chanrobles.com-red

Page 162 U. S. 348

Poplar, and they could go to work there if they wanted to; that they could go up there, and go on an extra gang that Holverson was running. He furnished them with passes to Poplar, and the men went up, and were placed at work by Holverson on his extra gang. The work which was to be done was repairing the road and roadbed, putting in new ties where necessary, and work of that general nature.

After the plaintiff and his companions were employed by Holverson on the extra gang, it then amounted, in numbers, to 13 men, with Holverson as foreman. The extra gang had duties precisely of the same kind as those pertaining to the regular section gang which was employed on each section of the road to keep the same in repair. The road was divided into sections of about six miles in length, and the purpose of the extra gang was to help out the other gangs when the work on their sections became too much for the regular gang to do. Each section had a section foreman or boss under whom the section gang worked. The extra gang over which Holverson had charge and into which plaintiff and his associates entered, instead of confining its assistance to one section, worked, where necessary, over a distance of three sections. Holverson had power to employ men and also to discharge them. The tools used by the men in repairing the road were furnished by the company. They were sent to Holverson, who gave them to the men as they required them. The men were stationed at Poplar, and were taken each morning on handcars to the place where they were to work during the day, and when the work was finished, were brought back. The members of the gang themselves worked the handcars, Holverson generally occupying a place on the front handcar and taking care of the brakes and applying them when thought necessary. He always went with the gang, superintended their work, even if taking no part in the actual manual labor, and came home with them at the end of the day's labor.

About a month after plaintiff had been working in this extra gang, and on the 19th of August, 1890, while returning on the handcar with the rest of the gang from the day's work, chanrobles.com-red

Page 162 U. S. 349

the accident out of which this suit arises occurred. Holverson occupied his accustomed place on the front handcar at the brakes. The plaintiff and several of his associates were on the same car. The second car was occupied by the remainder of the gang. While proceeding around a curve on the track, Holverson thought he saw some object in front of him, and he applied his brakes, as was said, very suddenly, in consequence of which the car was abruptly stopped. He gave no warning of his intention, and the rear car was following so closely that it had no chance to stop before running into the car ahead, the result of which was that the first car was thrown from the track, throwing plaintiff off the car, and injuring his leg by having the rear car run over it.

It was alleged that the brakes on the rear car were defective, and that on that account the rear car could not be stopped as readily as it would otherwise have been. This issue was not insisted upon, and was not in fact submitted to the jury. There is also evidence that the handcars were being run at the unusual rate of speed of from 12 to 15 miles an hour. Other evidence was given in regard to the nature of the wound and the alleged neglect of Holverson and the injuries sustained by plaintiff below.

The court, among other things, charged the jury as follows:

"The plaintiff claims his injuries resulted from the negligent act of Holverson, who was the defendant's foreman of an 'extra gang of laborers,' of whom the plaintiff was one, working on the defendant's road."

"The defendant claims they resulted from the negligence of the plaintiff's fellow servants, and also claims that Holverson was a fellow servant of plaintiff. Whether he was so or not depends on the relation he sustained to the defendant company, and the court instructs you that if you find from the evidence that Holverson was a 'foreman on extra gang' for the defendant company, and that as such foreman he had the charge and superintendency of putting in ties and lining and keeping in repair three sections of the defendant's road; that he hired the gang of hands, about thirteen in number, to do this work for the company, and had the exclusive charge and

Page 162 U. S. 350

direction and management of said gang of hands in all matters connected with their employment, and was invested with authority to hire and discharge the hands to do said work at his discretion, and that plaintiff was one of the gang of hands so hired by Holverson, and that the plaintiff was subject to the authority of Holverson in all matters relating to his duties as a laborer, then the plaintiff and Holverson were not fellow servants in the sense that will preclude the plaintiff from recovering from the railroad company damages for any injury he may have sustained through the negligence of Holverson, acting in the course of his employment as such foreman."

"If you find Holverson was not a fellow servant of the plaintiff, but representing the company, then, as was well observed by counsel for defendant, the question, under the evidence in the case, for your determination is was the injury the result of the negligent act of Holverson, the defendant's agent, who was riding on and had charge of the front handcar, or was it the negligence of the hands who were on and operating the hind car? If the negligence of the men on the hind car occasioned the accident, the defendant is not liable, but if the accident resulted from the negligent act of Holverson, the defendant is liable."

"You have heard the evidence relating to the functions and duty of Holverson and the hands at work under him, and, upon a full and fair consideration of all that evidence, you will determine whose negligent act occasioned this accident."

Counsel for the defendant below asked the court to charge the jury on the question of defective brakes, but after some conversation between counsel and the court, the court stated:

"You do not want a charge further than the issues in the case. There is nothing about the brake in the case. It all reduces itself to this: if you find under my charge that Holverson was not a fellow servant of the plaintiff, then the question is through whose negligent act did this injury occur? Was it the act of Holverson, the foreman, who was on the front car, or was it the negligent act of plaintiff's fellow servants on the hind car? If it was the act of Holverson, then the plaintiff is entitled to the agreed amount. If it was the

Page 162 U. S. 351

act of the men on the hind car, then plaintiff cannot recover and your verdict must be for the defendant."

Exceptions were duly taken to the refusal to charge as requested by counsel for the defendant below, and to the charge as above given.

The jury returned a verdict in favor of plaintiff. Upon writ of error, the United States Circuit Court of Appeals for the Eighth Circuit affirmed the judgment, 51 F.1d 2, and the defendant below sued out this writ of error.