Baltimore & Ohio Railroad Company v. Baugh/Opinion of the Court

by David Josiah Brewer

United States Supreme Court

149 U.S. 368

Baltimore Company  v.  Baugh

The single question presented for our determination is whether the engineer and fireman of this locomotive, running alone and without any train attached, were 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.

This is not a question of local law, to be settled by an examination merely of the decisions of the supreme court of Ohio, the state in which the cause of action arose, and in which the suit was brought, but rather 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.

The question as to what is a matter of local, and what of general, law, and the extent to which in the latter this court should follow the decisions of the state courts, has been often presented. The unvarying rule is that in matters of the latter class this court, while leaning towards an agreement with the views of the state courts, always exercises an independent judgment; and as unvarying has been the course of decision that the question of the responsibility of a railroad corporation for injuries caused to or by its servants is one of general law. In the case of Swift v. Tyson, 16 Pet. 1, the first proposition was considered at length. On page 18 it is thus stated: 'But, admitting the doctrine to be fully settled in New York, it remains to be considered whether it is obligatory upon this court if it differs from the principles established in the general commercial law. It is observable that the courts of New York do not found their decisions upon this point upon any local statute, or positive, fixed, or ancient local usage, but they deduce the doctrine from the general principles of commercial law. It is, however, contended that the thirty-fourth section of the judiciary act of 1789, (c. 20,) furnishes a rule obligatory upon this court to follow the decisions of the state tribunals in all cases to which they apply. That section provides 'that the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.' In order to maintain the argument, it is essential, therefore, to hold that the word 'laws,' in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not of themselves laws. They are often re-examined, reversed, and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases which have hitherto come before us for decision, this court have uniformly supposed that the true interpretation of the thirty-fourth section limited its application to state laws strictly local; that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character.'

Notwithstanding the interpretation placed by this decision upon the thirty-fourth section of the judiciary act of 1789, congress has never amended that section; so it must be taken as clear that the construction thus placed is the true construction, and acceptable to the legislative as well as to the judicial branch of the government. This decision was in 1842. Forty years thereafter, in Burgess v. Seligman, 107 U.S. 20, 2 Sup. Ct. Rep. 10, the matter was again fully considered, and it was said by Mr. Justice Bradley, on pages 33 and 34, 107 U.S. and pages 21 and 22, 2 Sup. Ct. Rep., that 'the federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with and not subordinate to that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate, and the construction of state constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment, as they always do in reference to the doctrines of commercial law and general jurisprudence. * * * As, however, the very object of giving to the national courts jurisdiction to administer the laws of the states in controversies between citizens of different states was to institute independent tribunals, which, it might be supposed, would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication. As this matter has received our special consideration, we have endeavored thus briefly to state our views with distinctness, in order to obviate any misapprehensions that may arise from language and expressisons used in previous decisions. The principal cases bearing upon the subject are referred to in the note, but it is not deemed necessary to discuss them in detail.' And in the note referred to over 50 cases are cited, in which the proposition had been in terms stated or in fact recognized. Since the case of Burgess v. Seligman the same porposition has been again and again affirmed.

Whatever differences of opinion may have been expressed have not been on the question whether a matter of general law should be settled by the independent judgment of this court, rather than through an adherence to the decisions of the state courts, but upon the other question, whether a given matter is one of local or of general law. Thus in the case of Bucher v. Railroad Co., 125 U.S. 555, 8 Sup. Ct. Rep. 974, these facts appeared: A statute of Massachusetts forbade travel on the Lord's day, except for necessity or charity, under penalty of a fine not exceeding $10. The plaintiff, while riding in the cars of the defendant in violation of that statute, was injured through its negligence. The defendant pleaded his violation of this statute as a bar to any recovery, citing repeated decisions of the highest court of that state sustaining such a defense. This court followed those decisions. It is true, as said in the opinion, that there was no dispute about the meaning of the language used by the legislature, so this court was not following the construction placed upon the statute by the Massachusetts court, but only those decisions as to its effect. And yet, from that opinion two of the justices dissented, holding that, notwithstanding it was a dispute as to the effect of a state statute, it was still a question of general law.

Again, in the case of Detroit v. Osborne, 135 U.S. 492, 10 Sup. Ct. Rep. 1012, the plaintiff was injured while walking in one of the streets of Detroit, through a defect in the sidewalk. The supreme court of Michigan had held that the duty resting upon the city, of keeping its streets in repair, was a duty to the public, and not to private individuals, the mere neglect of which was a nonfeasance only, for which no private action for damages arose. This court followed that ruling, although conceding that it was not in harmony with the general opinion, nor in accordance with the views of this court, and this was done on the ground that the question was one of a purely local nature. This quotation was made from the opinion in Claiborne Co. v. Brooks, 111 U.S. 400, 410, 4 Sup. Ct. Rep. 489, as fully expressing the reasons for so following the rulings of the Michigan court: 'It is undoubtedly a question of local policy with each state what shall be the extent and character of the powers which its various political and municipal organizations shall possess, and the settled decisions of its highest courts on this subject will be regarded as authoritative by the courts of the United States; for it is a question that relates to the internal constitution of the body politic of the state.' Observations of a similar nature are pertinent to other cases, in which this court has felt itself constrained to yield its own judgment to the decisions of the state courts.

Again, according to the decisions of this court, it is not open to doubt that the responsibility of a railroad company to its employes is a matter of general law. In Railroad Co. v. Lockwood, 17 Wall. 357, 368, the question was as to the extent to which a common carrier could stipulate for exemption from responsibility for the negligence of himself or his servants, and notwithstanding there were decisions of the courts of New York thereon, the state in which the cause of action arose, this court held that it was not bound by them, and that in a case involving a matter of such importance to the whole country it was its duty to proceed in the exercise of an independent judgment. In Hough v. Railway Co., 100 U.S. 213, was presented the liability of a company to its servant for injuries caused by negligence, and Mr. Justice Harlan, on page 226, thus expressed the views of the entire court: 'Our attention has been called to two cases determined in the supreme court of Texas, and which, it is urged, sustain the principles announced in the court below. After a careful consideration of those cases, we are of opinion that they do not necessarily conflict with the conclusions we have reached. Be this as it may, the questions before us, in the absence of statutory regulations by the state in which the cause of action arose, depend upon principles of general law, and in their determination we are not required to follow the decisions of the state courts.' In Myrick v. Railroad Co., 107 U.S. 102, 108, 1 Sup. Ct. Rep. 425, the question was whether a bill of lading, issued by a railroad company, whereby the company agreed to carry cattle beyond its own line to the place named for final delivery, was a through contract. The ticket or bill of lading was issued in Illinois, and the rulings of the supreme court of that state, as to the effect of such a ticket or bill of lading, were claimed to be conclusive; but this court declined to follow them, and in the exercise of its own judgment placed a different construction upon the contract. And in the recent case of Railway Co. v. Prentice, 147 U.S. 101, 106, 13 Sup. Ct. Rep. 261, where the question arose as to the right to recover from the railway company punitive damages for the wanton and oppressive conduct of one of its conductors towards a passenger, it was said: 'This question, like others affecting the liability of a railroad corporation as a common carrier of goods or passengers, such as its right to contract for exemption from responsibility for its own negligence, or its liability beyond its own line, or its liability to one of its servants for the act of another person in its employment, is a question, not of local law, but of general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the several states.'

Not only that, but in the cases of Railway Co. v. McDaniels, 107 U.S. 454, 2 Sup. Ct. Rep. 932, a case arising in the state of Indiana; Randall v. Railroad Co., 109 U.S. 478, 3 Sup. Ct. Rep. 322, arising in West Virginia; and Railroad Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. Rep. 184, coming from Minnesota,-all three cases being actions by employes to recover damages against railroad companies for personal injuries,-the question of the liability of the company was discussed as one of general law, and no reference made to the decisions of the state in which the injuries took place. Indeed, in the last case, the instruction given by the circuit judge, which was sustained by this court, was in direct opposition to the rulings of the supreme court of Minnesota. Thus, in Brown v. Railroad Co., 27 Minn. 162, 6 N. W. Rep. 484, a case called to the attention of this court, that court held that 'a master is not liable to one servant for injuries caused by the negligence of a coservant in the same common employment,' and 'that the negligent servant is superior in authority, or an overseer of the one injured, does not take the case out of this rule.' And in the opinion, on page 165, 27 Minn., and page 486, 6 N. W. Rep., it is said: 'It is upon this point that the authorities disagree. Some courts, the supreme court of Ohio being the leading one, hold that where the injured servant is subordinate to him whose negligence causes the injury, they are not 'fellow servants,' and the master is liable. On the other hand, the great majority of courts, both in this country and in England, hold that mere difference in grade of employment, or in authority, with respect to each other, does not remove them from the class of fellow servanst as regards the liability of the master for injuries to one caused by the negligence of the other.'

The same doctrine was announced in Brown v. Railway Co., 31 Minn. 553, 18 N. W. Rep. 834, and Franker v. Railway Co., 32 Minn. 54, 19 N. W. Rep. 349, both decided before the Ross Case, and reaffirmed since in Gonsior v. Railway Co., 36 Minn. 385, 31 N. W. Rep. 515. Indeed, in all the various cases in this court, affecting the relations of railroad companies to their employes, it has either been directly affirmed that the question presented was one of general law, or else the discussion has proceeded upon the assumption that such was the fact.

An examination of the opinions in the cases in the Ohio supreme court, which are claimed to be authoritative here, discloses that they proceed not upon any statute, or upon any custom or usage, or, indeed, upon anything of a local nature, but simply announce the views of that court upon the question as one of general law. We agree with that court, in holding it to be a question of general law, although we differ from it, as to what the rule is by that law. Indeed, the Ohio court is not wholly satisfied with that doctrine, as appears from the cases of Whaalan v. Railroad Co., 8 Ohio St. 249, and Railway Co. v. Devinney, 17 Ohio St. 197. In the last case it disagrees with the conclusions reached by this court in the case of Railroad Co. v. Ross, supra, and holds that a conductor of a train is not always to be regarded as a vice principal or representative of the company. In that case, a brakeman on one train was injured through the negligence of the conductor of another, and they were held to be fellow servants, and the latter not a vice principal or representative of the company, for whose negligence it was responsible. The opinion in that case is significant as showing that the question was regarded as one of common or general law; that the ordinary rule is in accordance with the views we have reached in this case; and that the Ohio doctrine is confessedly an exception. We quote from it as follows: 'The true general rule is, and so it must be, that, when men are employed for the prosecution of a lawful but hazardous business, they assume the hazards of such employment arising from the negligence of coemployes, and stipulate for compensation according to their estimate of such hazards; subject, however, to this exception, that the master is liable for such injuries as accrued to the servant from the negligence of a fellow servant in the selection of whom the master has been culpably negligent; and to this we in Ohio have added the further exception of a case where the servant injured is subordinate to, and acting under the orders of, the culpable fellow servant. For the reasoning on which the decisions establishing this exception are based, the members of this court, as now constituted, are not responsible; nor are we at all bound to carry out their logic to its ultimate consequences. In subsequent cases, strictly analogous in their facts, those decisions will doubtless be accepted as authoritative; but the case now before us does not require us to review them. In adding this last-named exception to the rule elsewhere generally established, we have already diverged from the general current of judicial decision elsewhere. A majority of the court are unwilling to increase the divergency; doubting, as we do, the wisdom of such a step, and being unwilling to assume the responsibility of what would savor so strongly of judicial legislation.'

But, passing beyond the matter of authorities, the question is essentially one of general law. It does not depend upon any statute; it does not spring from any local usage or custom; there is in it no rule of property, but it rests upon those considerations of right and justice which have been gathered into the great body of the rules and principles known as the 'common law.' There is no question as to the power of the states to legislate and change the rules of the common law in this respect as in others; but in the absence of such legislation the question is one determinable only by the general principles of that law. Further than that, it is a question in which the nation as a whole is interested. It enters into the commerce of the country. Commerce between the states is a matter of national regulation, and to establish it as such was one of the principal causes which led to the adoption of our constitution. To-day, the volume of interstate commerce far exceeds the anticipation of those who framed this constitution, and the main channels through which this interstate commerce passes are the railroads of the country. Congress has legislated in respect to this commerce not merely by the interstate commerce act and its amendments, (24 Stat. 379,) but also by an act passed at the last session, requiring the use of automatic couplers on freight cars. Pub. Acts, c. 196. The lines of this very plaintiff in error extend into half a dozen or more states, and its trains are largely employed in interstate commerce. As it passes from state to state, must the rights, obligations, and duties subsisting between it and its employes change at every state line? If to a train running from Baltimore to Chicago it should, within the limits of the state of Ohio, attach a car for a distance only within that state, ought the law controlling the relation of a brakeman on that car to the company to be different from that subsisting between the brakemen on the through cars and the company? Whatever may be accomplished by statute,-and of that we have now nothing to say,-it is obvious that the relations between the company and employe are not in any sense of the term local in character, but are of a general nature, and to be determined by the general rules of the common law. But the question is not local, but general. It is also one of the vexed questions of the law, and perhaps there is no one matter upon which there are more conflicting and irreconcilable decisions in the various courts of the land than the one as to what is the test of a common service, such as to relieve the master from liability for the injury of one servant through the negligence of another. While a review of all these cases is impossible, it may be not amiss to notice some, and to point out what are significant factors in such a question.

Counsel for defendant in error rely principally upon the case of Railroad Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. Rep. 184, taken in connection with this portion of rule No. 10 of the company: 'Whenever a train or engine is run without a conductor, the engine man thereof will also be regarded as conductor, and will act accordingly.' The Ross Case, at it is commonly known, decided that 'a conductor of a railroad train, who has a right to command the movements of a train and control the persons employed upon it, represents the company while performing those duties, and does not bear the relation of fellow servant to the engineer and other employes on the train.' The argument is a short one: The conductor of a train represents the company, and is not a fellow servant with his subordinates on the train. The rule of the company provides that, when there is no conductor, the engineer shall be regarded as a conductor. Therefore, in such case he represents the company, and is likewise not a fellow servant with his subordinates. But this gives a potency to the rule of the company which it does not possess. The inquiry must always be directed to the real powers and duties of the official, and not simply to the name given to the office. The regulations of a company cannot make the conductor a fellow servant with his subordinates, and thus overrule the law announced in the Ross Case. Neither can it, by calling some one else a conductor, bring a case within the scope of the rule there laid down. In other words, the law is not shifted backwards and forwards by the mere regulations of the company, but applies generally, irrespective of all such regulations. There is a principle underlying the decision in that case, and the question always is as to the applicability of that principle to the given state of facts.

What was the Ross Case, and what was decided therein? The instruction given on the trial in the circuit court, which was made the principal ground of challenge, was in these words: 'It is very clear, I think, that if the company sees fit to place one of its employes under the control and direction of another, that then the two are not fellow servants engaged in the same common employment, within the meaning of the rule of law of which I am speaking.' The language of that instruction, it will be perceived, is very like that of the one here complained of, and, if this court had approved that instruction as a general rule of law, it might well be said that that was sufficient authority for sustaining this, and affirming the judgment. But, though the question was fairly before the court, it did not attempt to approve the instruction generally, but simply held that it was not erroneous an applied to the facts of that case. This is evident from this language, found in the latter part of the opinion, and which is used in summing up the conclusions of the court: 'We agree with them in holding-and the present case requires no further decision-that the conductor of a railway train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and, therefore, that, for injuries resulting from his negligent acts, the company is responsible. If such a conductor does not represent the company, then the train is operated without any representative of its owner. If, now, we apply these views of the relation of the conductor of a railway train to the company, and to the subordinates under him on the train, the objections urged to the charge of the court will be readily disposed of. Its language in some sentences may be open to verbal criticism, but its purport touching the liability of the company is that the conductor and engineer, though both employes, were not fellow servants in the sense in which that term is used in the decisions.' It is also clear from an examination of the reasoning running through the opinion, for there is nowhere an argument to show that the mere fact that one servant is given control over another destroys the relation of fellow servants. After stating the general rule, that a servant entering into service assumes the ordinary risks of such employment, and, among them, the risk of injuries caused through the negligence of a fellow servant, and after referring to some cases on the general question, and saying that it was unnecessary to lay down any rule which would determine in all cases what is to be deemed a common employment, it turns to that which was recognized as the controlling fact in the case, to wit, the single and absolute control which the conductor has over the management of a train, as a separate branch of the company's business, and says: 'There is, in our judgment, a clear distinction to be made in their relation to their common principal, between servants of a corporation, exercising no supervision over others engaged with them in the same employment, and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. * * * We know from the manner in which railways are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the term is he a fellow servant with the fireman, the brakemen, the porters, and the engineer. The latter are fellow servants in the running of the train under his direction; as to them and the train, he stands in the place of and represents the corporation.' And quotes from Wharton's Law of Negligence, (section 232a:) 'The true view is that, as corporations can act only through superintending officers, the negligences of those officers, with respect to other servants, are the negligences of the corporation.' And also from Malone v. Hathaway, 64 N. Y. 5, 12: 'Corporations necessarily acting by and through agents, those having the superintendence of various departments, with delegated authority to employ and discharge laborers and employes, provide material and machinery for the service of the corporation, and generally direct and control under general powers and instructions from the directors, may well be regarded as the representatives of the corporation, charged with the performance of its duty, exercising the discretion ordinarily exercised by principals, and, within the limits of the delegated authority, the acting principal.'

The court, therefore, did not hold that it was universally true that, when one servant has control over another, they cease to be fellow servants within the rule of the master's exemption from liability, but did hold that an instruction couched in such general language was not erroneous when applied to the case of a conductor having exclusive control of a train n relation to other employes of the company acting under him on the same train. The conductor was, in the language of the opinion, 'clothed with the control and management of a distinct deparment;' he was 'a superintending officer,' as described by Mr. Wharton; he had 'the superintendence of a department,' as suggested by the New York court of appeals.

And this rule is one frequently recognized. Indeed, where the master is a corporation, there can be no negligence on the part of the master except it also be that of some agent or servant, for a corporation only acts through agents. The directors are the managing agents; their negligence must be adjudged the negligence of the corporation, although they are simply agents. So when they place the entire management of the corporation in the hands of a general superintendent, such general superintendent, though himself only an agent, is almost universally recognized as the representative of the corporation, the master, and his negligence as that of the master. And it is only carrying the same principle a little further, and with reasonable application, when it is held that, if the business of the master and employer becomes so vast and diversified that it naturally separates itself into departments of service, the individuals placed by him in charge of those separate branches and departments of service, and given entire and absolute control therein, are properly to be considered, with respect to employes under them, vice principals, representatives of the master, as fully and as completely as if the entire business of the master was by him placed under charge of one superintendent. It was this proposition which the court applied in the Ross Case, holding that the conductor of a train has the control and management of a distinct department. But this rule can only be fairly applied when the different branches or departments of service are in and of themselves separate and distinct. Thus, 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 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. But this is a very different proposition from that which affirms that each separate piece of work in one of these branches of service is a distinct department, and gives to the individual having control of that piece of work the position of vice principal or representative of the master. Even the conclusion announced in the Ross Case was not reached by a unanimous court, four of its members being of opinion that it was carrying the thought of a distinct department too far to hold it applicable to the management of a single train.

The truth is, the various employes of one of these large corporations are not graded like steps in a staircase, those on each step being as to those on the step below in the relation of masters, and not of fellow servants, and only those on the same steps fellow servants, because not subject to any control by one over the other. Prima facie, all who enter into the employ of a single master are engaged in a common service, and are fellow servants, and some other line of demarcation than that of control must exist to destroy the relation of fellow servants. All enter into the service of the same master, to further his interests in the one enterprise; each knows when entering into that service that there is some risk of injury through the negligence of other employes, and that risk, which he knows exists, he assumes in entering into the employment. Thus, in the opinion in the Ross Case, page 382, 112 U.S., and page 186, 5 Sup. Ct. Rep., it was said: 'Having been engaged for the performance of specified services, he takes upon himself the ordinary risks incident thereto. As a consequence, if he suffers by exposure to them, he cannot recover compensation from his employer. The obvious reason for this exemption is that he has, or, in law, is supposed to have, them in contemplation when he engages in the service, and that his compensation is arranged accordingly. He cannot, in reason, complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid.'

But the danger from the negligence of one specially in charge of the particular work is as obvious and as great as from that of those who are simply co-workers with him in it. Each is equally with the other an ordinary risk of the employment. If he is paid for the one, he is paid for the other; if he assumes the one, he assumes the other. Therefore, so far as the matter of the master's exemption from liability depends upon whether the negligence is one of the ordinary risks of the employment, and, thus assumed by the employe, it includes all co-workers to the same end, whether in control or not. But if the fact that the risk is or is not obvious does not control, what test or rule is there which determines? Rightfully this: There must be some personal wrong on the part of the master, some breach of positive duty on his part. If he discharges all that may be called positive duty, and is himself guilty of no neglect, it would seem as though he was absolved from all responsibility, and that the party who caused the injury should be himself alone responsible. It may be said that this is only passing from one difficulty to another, as it leaves still to be settled what is positive duty and what is personal neglect; and yet, if we analyze these matters a little, there will appear less difficulty in the question. Obviously, a breach of positive duty is personal neglect; and the question in any given case is, therefore, what is the positive duty of the master? He certainly owes the duty of taking fair and reasonable precautions to surround his employe with fit and careful co-workers, and the employe has a right to rely upon his discharge of this duty. If the master is careless in the matter of employing a servant, it is his personal neglect; and if without proper care in inquiring as to his competency he does employ and incompetent person, the fact that he has an incompetent, and, therefore, an improper, employe is a matter of his personal wrong, and owing to his personal neglect. And if the negligence of this incompetent servant works injury to a coservant, is it not obvious that the master's omission of duty enters directly and properly into the question of responsibility? If, on the other hand, the master has taken all reasonable precautions to inquire into the competency of one proposing to enter into his service, and as the result of such reasonable inquiry is satisfied that the employe is fit and competent, can it be said that the master has neglected anything, that he has omitted any personal duty? and this, notwithstanding that, after the servant has been employed, it shall be disclosed that he was incompetent and unfit? If he has done all that reasonable care requires to inquire into the competency of his servant, is any neglect imputable to him? No human inquiry, no possible precaution, is sufficient to absolutely determine in advance whether a party under certain exigencies will or will not do a negligent act. So it is not possible for the master, take whatsoever pains he may, to secure employes who will never be guilty of any negligence. Indeed, is there any man who does not sometimes do a negligent act? Neither is it possible for the master, with any ordinary and reasonable care, always to secure competent and fit servants. He may be mistaken, notwithstanding the reasonable precautions he has taken. Therefore, that a servant proves to be unfit and incompetent, or that in any given exigency he is guilty of a negligent act resulting in injury to a fellow servant, does not of itself prove any omission of care on the part of the master in his employment; and it is only when there is such omission of care that the master can be said to be guilty of personal wrong in placing or continuing such servant in his employ, or has done or omitted aught justifying the placing upon him the responsibility for such employe's negligence.

Again, a master employing a servant impliedly engages with him that the place in which he is to work and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and the machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools, and the machinery, than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits the master who provides the place, the tools, and the machinery owes a positive duty to his employe in respect thereto. That positive duty does not go to the extent of a guaranty of safety, but it does require that reasonable precautions be taken to secure safety, and it matters not to the employe by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employe, or the latter's right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore it will be seen that the question turns rather on the character of the act than on the relations of the employes to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor. But, it may be asked, is not the duty of seeing that competent and fit persons are in charge of any particular work as positive as that of providing safe places and machinery? Undoubtedly it is, and requires the same vigilance in its discharge. But the latter duty is discharged when reasonable care has been taken in providing such safe place and machinery, and so the former is as fully discharged when reasonable precautions have been taken to place fit and competent persons in charge. Neither duty carries with it an absolute guaranty. Each is satisfied with reasonable effort and precaution.

In the case of Railroad Co. v. Moore, 29 Kan. 632, 644, Mr. Justice Valentine, speaking for the court, thus succinctly summed up the law in these respects: 'A master assumes the duty towards his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools, and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow servants to work with him; and when the master has properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment or the performance of the particular work, including those risks and hazards resulting from the possible negligence and carelessness of his fellow servants and coemployes. And at common law, whenever the master delegates to any officer, servant, agent, or employe, high or low, the performance of any of the duties above mentioned, which really devolve upon the master himself, then such officer, servant, agent, or employe stands in the place of the master, and becomes a substitute for the master, a vice principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence. But at common law, where the master himself has performed his duty, the master is not liable to any one of his servants for the acts or negligence of any mere fellow servant or coemploye of such servant, where the fellow servant or coemploye does not sustain this representative relation to the master.'

It would be easy to accumulate authorities on these propositions, for questions of this kind are constantly arising in the courts. It is enough, however, to refer to those in this court. In the cases of Hough v. Railway Co., 100 U.S. 213, and Railroad Co. v. Herbert, 116 U.S. 642, 6 Sup. Ct. Rep. 590, this court recognized the master's obligation to provide reasonably suitable place and machinery, and that a failure to discharge this duty exposed him to liability for injury caused thereby to the servant, and that it was immaterial how or by whom the master discharged that duty. The liability was not made to depend in any manner upon the grade of service of a coemploye, but upon the character of the act itself, and a breach of the positive obligation of the master. In both of them the general doctrine of the master's exemption from liability for injury to one servant through the negligence of a coemploye was recognized, and it was affirmed that the servant assumed all the risks ordinarily incident to his employment. In Railroad Co. v. Fort, 17 Wall. 553, where a boy was injured through dangerous machinery in doing an act which was not within the scope of his duty and employment, though done at the command of his immediate superior, this court, while sustaining the liability of the master, did so on the ground that the risk was not within the contract of service, and that the servant had no reason to believe that he would have to encounter such a danger, and declared that the general rule was that the employe takes upon himself the risks incident to the undertaking, among which were to be counted the negligence of fellow servants in the same employment. In the cases of Randall v. Railroad Co., 109 U.S. 478, 3 Sup. Ct. Rep. 322, and Steamship Co. v. Merchant, 133 U.S. 375, 10 Sup. Ct. Rep. 397, the persons whose negligence caused the injury were adjudged to be fellow servants with the parties injured, so as to exempt the master from liability; and while the question in this case was not there presented, yet in neither case were the two servants doing the same work, although it is also true that in each of them there was no control by one over the other. It may safely be said that this court has never recognized the proposition that the mere control of one servant over another in doing a particular piece of work destroys the relation of fellow servants, and puts an end to the master's liability. On the contrary, all the cases proceed on the ground of some breach of positive duty resting upon the master, or upon the idea of superintendence or control of a department. It has ever been affirmed that the employe assumes the ordinary risks incident to the service; and, as we have seen, it is as obvious that there is risk from the negligence of one in immediate control as from one simply a co-worker. That the running of an engine by itself is not a separate branch of service seems perfectly clear. The fact is, all the locomotive engines of a railroad company are in the one department, the operating department; and those employed in running them, whether as engineers or firemen, are engaged in a common employment and are fellow servants. It might as well be said that, where a liveryman has a dozen carriages, the driver of each has charge of a separate branch or department of service, and that, if one drives his carriage negligently against another employe, the master is exempt from liability.

It may further be noticed that in this particular case the injury was not in consequence of the fireman's obeying any orders of his superior officer. It did not result from the mere matter of control. It was through negligence on the part of the engineer in running his engine, and the injury would have been the same if the fireman had had nothing to do on the locomotive, and had not been under the engineer's control. In other words, an employe carelessly manages an engine, and another employe who happens to be near enough is injured by such carelessness. It would seem, therefore, to be the ordinary case of the injury on one employe through the negligence of another.

Again, this was not simply one of the risks assumed by the employe when entering into the employment, and yet not at the moment fully perceived and understood. On the contrary, the peril was known and voluntarily assumed. The plaintiff admits in his testimony that he knew they had no right to the track without orders, and that there was a local train on the road somewhere between them and Bellaire; and yet, with this knowledge, and without protest, he voluntarily rode on the engine with the engineer. Hammond v. Railway Co., 83 Mich. 334, 47 N. W. Rep. 965; Railway Co. v. Leech, 41 Ohio St. 388; Wescott v. Railroad Co., 153 Mass. 460, 27 N. E. Rep. 10.

In the first of these cases the party injured was a section hand, who was injured while riding on a hand car, in company with a fellow laborer and the section foreman, and the negligence claimed was in propelling the hand car along a curved portion of the track, with knowledge of an approaching train, and without sending a lookout ahead to give warning. In respect to this, Mr. Justice Cahill, speaking for the court, says: 'But, if this conduct was negligent, it was participated in by Hammond. The latter had been going up and down this section of the road daily for three months. Whatever hazard there was in such a position was known to him, and he must be held to have voluntarily assumed it. * * * Where, as in this case, the sole act of negligence relied on is participated in, and voluntarily consented to, by the person injured, with full knowledge of the peril, the question of the master's liability does not arise.'

So, in this case, Baugh equally with the engineer knew the peril, and with this knowledge voluntarily rode with the engineer on the engine. He assumed the risk.

For these reasons we think that the judgment of the circuit court was erroneous, and it must be reversed, and the case remanded for a new trial.

Notes

1  The detached and broken sentences, upon which the allegation is made that the plaintiff voluntarily assumed the risk in the case, are printed in italics in the passage from the record in which they are given below with their context:

As to orders received on the morning the train started back to Bellaire:

Record, p. 40. 'Question. Now, Mr. Baugh, do you know of any order that was received that morning by your train? Answer. Yes, sir.

'Q. What do you know of? A. All I know is an order thrown off while we were at Burr's Mills, and I gave it to the engineer, and he told me to let him out; that we would go.

'Q. What was that order? A. I don't know.

'Q. Do you know what it was? A. No, sir.

'Q. What happened immediately after you gave your engineer that order? A. He told me to let him out.

'Q. What did happen immediately after you gave that order to the engineer? A. He started to go.

'Q. Who opened the switch? A. I did it.

'Q. What did you do then? A. Shut the switch and got on the engine.'

• * *

Record, p. 41. 'Q. Do you know what time it was when you started out of the switch at Burr's? A. No, sir.

'Q. Did you know then what time of day it was? A. No, sir.

'Q. Did you pay any attention to that at all? A. No; I did not. It was not my business to pay attention.

'Q. Well, I was going to ask you was that any part of your duty? A. No, sir.

'Q. Whose direction were you under? A. Under my engineer's.

'Q. Did you receive any orders as you went west that morning at Lewis' Mills? A. I don't know.

'Q. On your helper, who received the orders? A. The engineer did. He received all the orders.'

Record, p. 47. 'Q. Now, Mr. Baugh, when you got up to Burr's Mills,

to that turntable, just explain to the jury the process by which that engine would get back to Bellaire? A. We had all the trains on the road to contend with, and we had to run inside tracks when coming down to keep out of the way of them.

'Q. When did you first learn the fact that you had to keep out of the way,-out of the way of what trains? A. All the trains that was expected.

'Q. The schedule trains, would it not be? A. I reckon.

'Q. What was the process,-what right had you to go back after you got to Burr's Mills or the turntable? You had no right to the track at all unless you had orders, had you? A. No, sir; didn't have no right without orders.

'Q. And you proposed to get a right to the track by writing an order which you have said you did write? A. I was going to flag on the engine. I did not want to run them on my orders.

'Q. You had been running the length of time, whatever it was; you knew the time of this local train out of Bellaire? A. No, sir.

'Q. You were in the habit of meeting it? A. I did not know what time they left.

'Q. You knew where you met them always? A. No, sir; we would not meet them perhaps once in a month. We would not meet them once a month sometimes.

'Q. You knew the time of the local train? A. No, sir.

'Q. You knew there was a local train on the road running out of Bellaire in the morning? Yes, sir.

'Q. You knew when you were running,-knew where you met them? A. I did not know anything about it that time.

'Q. Is it not a part of your duty to learn these things? I want to know if you did not know that there was a local train and has been for the last ten years running out of Bellaire about the same time,-about the same hour and the same minute. A. No, indeed; I did not.

'Q. And you were at work at-in the shops and yard, and did not know anything about it? A. No, sir; I did not.

'Q. You entirely overlooked that fact? No answer.'

• * *

Record, p. 49. 'Q. Did you know that there was a local train coming out about that time? A. I knew there was a local train on the road some place.

'Q. Between you and Bellaire? A. Yes, sir.

'Q. I wish you would explain to the jury what you mean by flagging. You say your intention was to flag down to Bellaire. How is that done? A. We make out an order and give it to the engineer on the train we want to follow; sign the engineer's name; and I went with this flag on the train, and our engine followed behind until we met another train, and then we would side track there and pass.

'Q. That is, you would keep far enough ahead so that if you met a train you would signal it and stop the train? A. I would go right on the train that had the right of way of the track, and our engine followed after.'