consideration of all that evidence, you will | 58 Am. Rep. 8; Galveston, H. & S. A. R. Co. v. 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 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 351] agreed amount; if it was the *act of the menonthehind 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, and the defendant below sued out this writ of error.

Messrs. William J. Curtis and C. W. Bunn, for plaintiff in error:

Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured.

Grand Trunk R. Co. v. Ives, 144 U. S. 408 (36: 485).

Where the evidence shows absolutely no negJigence of defendant or of any one representing , and does show affirmatively that plaintiff's injuries were due to his own disregard of the most ordinary precautions, and, as a next cause, to the gross negligence of men who were beyond dispute his fellow servants, it is the duty of the court to take the case from the jury.

Metropolitan R. Co. v. Jackson, L. R. 3 App. Cas. 193.

Holverson was a fellow servant of plaintiff. Baltimore & O. R. Co. v. Baugh, 149 U. 6.368 (37: 772); Northern P. R. Co. v. Hambly, 154 U. S. 349 (38: 1009).

Mr. Henry J. Gjertsen, for defendant in error:

Drew, 59 Tex. 11, 46 Am. Rep. 261; Smith v. Sioux City & P. R. Co. 15 Neb. 583; Douglas v. Texas Mexican R. Co. 63 Tex. 564; Brickner v. New York C. R. Co. 2 Lans. 506; Corcoran v. Holbrook, 59 N. Y. 517, 17 Am. Rep. 369; Pantzar v. Tilly Foster Iron Min. Co. 99 N. Y. 368: Hussey v. Coger, 39 Hun, 639; Mullan v. Philadelphia & S. Mail S. S. Co. 78 Pa. 25; Ryan v. Bagaley, 50 Mich. 179, 45 Am. Rep. 35; Quincy Min. Co. v. Kitts, 42 Mich. 34; Mitchell v. Robinson, 80 Ind. 281, 41 Am. Rep. 812; Henry v. Brady, 9 Daly, 142: Fort v. Whipple, 11 Hun, 586; Schultz v. Chicago, M. & St. P. R. Co. 48 Wis. 379; Hoth v. Peters, 55 Wis. 413; Chicago & A. R. Co. v. May, 108 Ill. 288; Murphy v. Smith, 19 C. B. N. S. 361; Petterson v. Wallace, 1 Macq. H. L. Cas. 748; Eagan v. Tucker, 18 Hun, 347; Gormly v. Vulcan Iron Works, 61 Mo. 492; Russ v. Wabash W. R. Co. 112 Mo. 45, 18 L. R. A. 823.

Mr. Justice Peckham delivered the opinion of the court:

The sole question for our determination is whether Holverson occupied the position of fellow servant with the plaintiff below. If he did, then this judgment is wrong and must be reversed.

By the verdict of the jury, under the charge cf the court, we must take the fact to be that Holverson was foreman of the extra gang for the defendant company, and that he had charge of and superintended the gang in the putting in of the ties and assisting in keeping in repair the portion of the road included within the three sections; that he had power to hire (and discharge) the hands in his gang, then amounting to thirteen in number, and had exclusive charge of the direction and management of the gang in all matters connected with their employment; that the plaintiff below was one of the gang of hands so hired by Holverson and was subject to the authority of Holverson in all matters relating to his duties as laborer. Upon these facts the courts below have held that the plaintiff and Holverson were not fellow servants in such a sense as to preclude plaintiff recovering from the railroad company damages for the injuries he sustained through the negli gence of *Holverson, acting in the course[352 of his employment as such foreman.

In the course of the review of the judgment by the United States circuit court of appeals, that court held that the distinction applicable to the determination of the question of a coemployee was not "whether the person has charge of an important department of the masOne to whom his employer commits the en-ter's service, but whether his duties are exclutire charge of the business, or a branch of it, with full power to choose his own assistants, and to control or discharge them as freely and as fully as the principal himself could, is not a fellow servant with those wh are employed under him, and the master is answerable to all the underservants for the negligence of such managing assistant, or alter ego of the master, in his personal conduct within the scope of his employment, as such manager, or in his orders.

sively those of supervision, direction, and control over a work undertaken by the master, and over subordinate employees engaged in such work, whose duty it is to obey, and whether he has been vested by the common master with such power of supervision and management." Continuing, the court said that "the other view that has been taken is that whether a person is a vice principal is to be determined solely by the magnitude or importance of the work that may have been committed to his charge, and Kansas P. R. Co. v. Little, 19 Kan. 267; Dob- that view is open to the objection that it furbin v. Richmond & D. R. Co. 81 N. C. 446, 31nishes no practical or certain test by which to Am. Rep. 512; Brown v. Sennett, 68 Cal. 225, I determine in a given case whether an employee

has been vested with such departmental con- ants in charge of a separate department or trol, or has been 'so lifted up in the grade and branch of business whereby another of his em extent of his duties' as to constitute him the ployees has been injured, even though the negpersonal representative of the master. That lect was not of that character which the master this would frequently be a difficult and embar- owed in *his capacity as master to the [354 rassing question to decide, and that courts servant who was injured. In such case it has would differ widely in their views, if the doc- been held that the neglect of the superior offitrine of departmental control was adopted, is cer or agent of the master was the neglect of well illustrated by the case of Borgman v. the master, and was not that of the coemployee, Omaha & St. L. R. Co. 41 Fed. Rep. 667, 669. and hence, that the servant, who was a suborWe are of the opinion, therefore, that the dinate in the department of the officer, could nature and character of the respective duties recover against the common master for the indevolved upon and performed by persons in juries sustained by him under such circumthe same common employment should in each stances. It has been already said that Holverinstance determine whether they are or are not son sustained no such relation to the company fellow servants, and that such relation should in this case as would uphold a liability for his not be deemed to exist between two employees acts based upon the ground that he was a suwhere the function of one is to exercise super-perintendent of a separate and distinct branch vision and control over some work undertaken by the master which requires supervision, and over subordinate servants engaged in that work, and where the other is not vested by the master with any such power of direction or management." 4 U. S. App. 574, 578. The court thereupon affirmed the judgment.

It seems quite plain that Holverson was not 353]the chief or *superintendent of a separate and distinct department or branch of the busi ness of the company, as such term is used in those cases where a liability is placed upon the company for the negligence of such an officer. We also think that the ground of liability laid down by the courts below is untenable.

or department of the master's business. It is proper, therefore, to inquire what is meant to be included by the use of such a phrase.

A leading case on this subject in this court is that of Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377 [28: 787]. In that case a railroad corporation was held responsible to a locomotive engineer in the employment of the company for damages received in a collision which was caused by the negligence of the conductor of the train drawn by the engine upon which plaintiff was engineer. This court held the action was maintainable on the ground that the conductor upon the occasion in question was an agent of the corporation, clothed with the control and management of a distinct department, in which his duty was entirely that of direction and superintendence; that he had the entire control and management of the train, and that he occupied a very different position from the brakemen, porters, and other subordinates employed on it; that he was in fact and should be treated as a personal representative of the corporation for whose negligence the corporation was responsible to subordinate servants. The engineer was permitted to recover on that theory. These facts give some indication of the meaning of the phrase.

The general rule is, that those entering into the service of a common master become thereby engaged in a common service and are fellow servants, and prima facie the common master is not liable for the negligence of one of his servants which has resulted in an injury to a fellow servant. There are, however, some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances, and machinery for the accomplishment of the work necessary to be done. He must exercise proper diligence in the employment of reasonably safe and competent men to perform their respective duties, and it has been held in many states that the master owes the further duty of adopting and promulgating safe and proper rules for the conduct of his business, including the govern ment of the machinery and the running of trains on a railroad track. If the master be neglectful in any of these matters it is a neglect of a duty which he personally owes to his employee, and if the employee suffer damage on account thereof, the master is liable. If, instead of personally performing these obliga-proval was given, are very clearly stated by Mr. tions, the master 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, no matter what his position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform as such.

In addition to the liability of the master for his neglect to perform these duties, there has been laid upon him by some courts a further liability for the negligence of one of his serv

In the above case the instruction given by the court at the trial, to which exception was taken, was in these words: "It is very clear, I think, that if the company sees fit to place one of its employees under the control and direc tion of another, that then the two are not fel low servants, engaged in the same common employment within the meaning of the rule of law of which I am speaking." That instruction thus broadly given was not, however, [355 approved by this court in the Ross Case. Such ground of liability, mere superiority in position and the power to give orders to subordi nates, was denied. What was approved in that case, and the foundation upon which the ap

Justice Brewer in the course of the opinion delivered in the case of Baltimore & O. R. Co. v. Baugh, 149 U. S. 368 [37: 772], at 380 [779], and the following pages. In the Baugh Case it is also made plain that the master's responsibility for the negligence of a servant is not founded upon the fact that the servant guilty of the neglect had control over and a superior position to that occupied by the servant who was injured by his negligence. The rule is that in order to form an exception to the gen

eral law of nonliability the person whose neg- | the orders and direction of a section boss or lect caused the injury must be "one who was foreman on a culvert on the line of the comclothed with the control and management of a pany's road, receives an injury through the distinct department, and not a mere separate neglect of a conductor and an engineer in piece of work in one of the branches of service in moving a particular passenger train upon a a department." This distinction is a plain company's road, is a fellow servant of such one, and not subject to any great embarrass- engineer and of such conductor in such a sense ment in determining the fact in any particular as exempts the railroad company from liability for the injury so inflicted.

case.

The subject is again treated in Central R Co. v. Keegan, 160 U. S. 259 [ante, 418], decided at this term, where the men engaged in the service of the railroad company were[357 cars which were to be sent elsewhere and in attaching other cars in their place, and they were held to be fellow servants, although the force, consisting of five men, was under the orders of a "boss" who directed the men which cars to uncouple and what cars to couple, and the neglect was alleged to have been the neglect of the "boss" by which the injury resulted to one of the men. This court held that they were fellow servants, and the mere fact that one was under the orders of the other constituted no distinction, and that the general rule of nonliability applied.

When the business of the master or employer is of such great and diversified extent that it naturally and necessarily separates itself into departments of service, the individuals placed by the master in charge of these sepa-employed in uncoupling from the rear of trains rate branches and departments of service, and given entire and absolute control therein, may properly be considered, with respect to employees under them, vice principals and representatives of the master as fully and as completely as if the entire business of the master were placed by him under one superintendent. Thus Mr. Justice Brewer, in the Baugh Case, illus. trates the meaning of the phrase "different branches or departments of service" by sug gesting that "between the law department of a railway corporation and the operating department there is a natural and distinct separation, one which makes the two departments like two independent kinds of business, in which the one employer and master is engaged. So oftentimes there is in the affairs of such corporation what may be called a manufacturing or repair department, and another strictly operating 356] department; these two departments are, in their relations to each other, as distinct and separate as though the work of each was carried on by a separate corporation. And from this natural separation flows the rule that he who is placed in charge of such separate branch of the service, who alone superintends and has the control of it, is as to it in the place of the master."

The subject is further elaborated in the case of Howard v. Denver & R. G. R. Co. 26 Fed. Rep. 837, in an opinion by Mr. Justice Brewer, then circuit judge of the eighth circuit. The other view is stated very distinctly in the cases of Borgman v. Omaha & St. L. R. Co. 41 Fed. Rep. 667, and Woods v. Lindvall, 4 U. S. App. 49, 48 Fed. Rep. 62. This last case is much stronger for the plaintiff than the one at bar. The foreman in this case bore no resemblance in the importance and scope of his authority to that possessed by Murdock in the Woods Case, supra. These cases which have been cited serve to illustrate what was in the minds of the courts when the various distinc tions as to departments and separate branches of service were suggested. In the Baugh Case, the engineer and fireman of a locomotive engine, running alone on the railroad and without any train attached, were held to be fellow servants of the company so as to preclude the fireman from recovering from the company for injuries caused by the negligence of the engineer.

The meaning of the expression depart mental control' was again and very lately discussed in Northern P. R. Co. v. Hambly, 154 U. S. 349 [38: 1009], where it was held, as stated in the headnote, that a common day laborer in the employ of a railroad company, who, while working for the company under

These last cases exclude by their facts and reasoning the case of a section foreman from the position of a superintendent of a separate and distinct department. They also prove that mere superiority of position is no ground for liability.

This boss of a small gang of ten or fifteen men, engaged in making repairs upon the road wherever they might be necessary, over a distance of three sections, aiding and assisting the regular gang of workmen upon each section as occasion demanded, was not such a superintendent of a separate department, nor was he in control of such a distinct branch of the work of the master as would be necessary to render the master liable to a coemployee for his neglect. He was in fact, as well as in law, a fellow workman; he went with the gang to the place of work in the morning, stayed with them during the day, superintended their work, giving directions in regard to it, and returned home with them in the evening, acting as a part of the crew of the hand car upon which they rode. The mere fact, if it be a fact, that he did not actually handle a shovel or a pick, is an unimportant matter. Where more than one man is engaged in doing any particular work, it becomes almost a necessity that one should be boss and the other subordinate, but both are nevertheless fellow workmen.

If in approaching the line of separation be tween a fellow workman and a superintendent of a particular and separate department there may be embarrassment in determining the question, this case presents no such difficulty. It is clearly *one of fellow servants. The[358 neglect for which the plaintiff has recovered in this case was the neglect of Holverson in not taking proper care at the time when he applied the brake to the front car. It was not a neglect of that character which would make the master responsible therefor, because it was not a neglect of a duty which the master owes as master to his servant when he enters his employment.

running a hand car at too high a rate of speed while carrying his gang of men is not the neglect of any duty which the master is bound to perform, but is that of a fellow servant of the members of his gang.

3. For using in a negligent manner a defective appliance furnished by the master, the master may be liable if a coemployee is thereby and in consequence thereof injured; but the master is not responsible for the negligent use by an employee of a proper appliance whereby a coemployee is injured.

It is urged, however, in this case, that this judgment may be sustained upon another and distinct proposition. The counsel for the defendant in error says that it is alleged in the amended complaint, "that as a part of_the contract of hiring, the defendant engaged to carry the plaintiff to and from his work upon the defendant's road as occasion should require, in a safe and proper manner." He then argues that the defendant having as a part of its contract of hiring assumed the obligation to carry safely, it was bound to exercise the same degree of care in its discharge as in any positive duty recognized or imposed Argued March 26, 27, 1896. Decided April 13, by law, and that, therefore, the negligence of Holverson in the performance of his duty, whether it be from the relation of master and servant or one specially assumed under the contract of hiring, was a neglect of the

master.

Although this allegation is contained in the complaint, it is denied in the answer, and there is no proof of any contract on the part of the defendant below to carry the plaintiff safely, further than is to be inferred from the fact that the company furnished hand cars which were worked by the gang and upon which they rode to and from the place of labor. If, under these circumstances, the servant be injured through the neglect of a fellow servant, such as appears in this case, the master is not liable.

The charge of the court to the jury in the matter complained of was erroneous, and the judgment must therefore be reversed and the case remanded, with directions to grant a new trial.

[No. 184.]

1896.

IN ERROR to the United States Circuit

review a judgment affirming the judgment of the Circuit Court of the United States for the Eastern Division of the District of Washington in favor of the plaintiff, Hugh Charless, against the Northern Pacific Railroad Company, defendant, for damages on account of the negligence of the agents and servants of the defendant. Reversed and cause remanded for new trial.

See same case below, 51 Fed. Rep. 562. The facts are stated in the opinion. Mr. C. W. Bunn, for plaintiff in error: The court was in clear error in submitting to the jury negligence of the defendant based on negligence of the engineer of the freight train. The engineer of the freight train and the section foreman were fellow servants.

Randall v. Baltimore & O. R. Co. 109 U. S. 478 (27: 1003): Quebec S. S. Co. v. Merchant, 133 U. S. 375 (33: 656); Northern P. R. Co. v.

The Chief Justice and Mr. Justice Field Hambly, 154 U. S. 349 (38: 1009). and Mr. Justice Harlan dissent.

359]NORTHERN PACIFIC RAILROAD COMPANY, Plff. in Err.,

V.

HUGH CHARLESS.

(See S. C. Reporter's ed. 359-365.)

Messrs. Reese H. Voorhees, A. K. McBroom, and L. H. Prather, for defendant in

error:

The facts, if true, make the defendant liable, and therefore constitute a good cause of action.

Northern P. R. Co. v. Herbert, 116 U. S. 643 (29:757); Hough v. Texas & P. R. Co. 100 U. S. 213 (25: 612).

It is entirely within the court's discretion as to whether a witness shall or shall not give his

Negligence of coservants-of a section boss-lia- testimony as a continuous narrative.

bility of master.

1. The negligence of employees on a train in failing to give a signal of its approach, whereby a track laborer on a hand car is injured, is the negligence of his coservants, for which the master is not liable.

2. The negligence of a section boss or foreman in NOTE.-As to fellow servants and their negligence; who are fellow servants; vice principal; superior servant; liability of master,-see note to Baltimore & O. R. Co. v. Baugh, 37: 773.

As to who are coemployees or coservants within the rule that a master is not responsible for injuries to a servant occasioned by the negligence of a coservant, see note to Hough v. Texas & P. R. Co. 25: 612.

As to negligence; responsibility of master for care fulness and competency of coservants,-see note to Wabash R. Co. v. McDaniels, 27: 605.

As to master's duty to furnish suitable and safe machinery and appliances; and liability to servant for their being insufficient or out of repair,-see note to Richmond & D. R. Co. v. Elliott, 37: 728.

Thomp. Trials, § 354; 3 Chitty, Gen. Pr.

894.

Where the ground of objection to a question put to a witness is not given, the exception is unavailing and cannot be reconsidered.

Toplitz v. Hedden, 146 U. S. 252 (36: 961). The court had no power to direct a nonsuit without the plaintiff's consent. Plaintiff was entitled to his trial by jury.

D' Wolf v. Raband, 26 U. S. 1 Pet. 476 (7: 227); Elmore v. Grymes, 26 U. S. 1 Pet. 469 (7: 224); Crane v. Morris, 31 U. S. 6 Pet. 598 (8: 514); Castle v. Bullard, 64 U. S. 23 How. 172 (16: 424); Silsby v. Foote, 55 U. S. 14 How. 218 (14: 394).

Where defendant's counsel made no motion asking that the court direct the jury to return a verdict for defendant, and proceeded to take testimony in its own behalf, the court's refusal to direct a verdict for defendant cannot be assigned as error.

Accident Ins. Co. v. Orandal, 120 U. S. 527

(30: 740); Grand Trunk R. Co. v. Cummings, | Nav. Co. v. Merchants' Bank, 47 U. S. 6 How. 106 U. S. 700 (27: 266); Robertson v. Perkins, 129 U. S. 233 (32: 686).

The engineer and the plaintiff were not en-inspect the condition of the road. They were gaged in the same common work.