. It is enough to say, that it establishes, beyond

‘ latter part of the charge of the Court below to the

. vant.”

88
Journal 01 Sztaliroacfhnvv.
narnuoan cOMPANIES--LAW or DAMAGES WHEN
snuvanrs or conrranr ARE INJURED rnaoueu

NEGLIGENCE or co-nnrnorsns.

The facts in the late case of The Pittsburg,
Fort Wayne and Chicago Railway Company as.
Devinney, (17 Ohio, 197,) are fully and clearly
stated in the following opinion by

B1mrxnRnoFF,J.—-The bill of exceptions sets
forth all the evidence given on the trial below;
but it would be 9. useless labor to repeat it here.

reasonable question, the fact that the plaintiff be-
low, being a brakeman on a train going east, re-
ceived the injury of which he complains, through
the negligence and misconduct of the conductor
, or engineer, or both, in charge of the train num-
ber eleven going West, and with which the train
on which the plaintiff below belonged, and on
which he was serving, came in collision.
The motion for a. new trial on the ground that
the verdict was against the evidence, and the

jury, both, therefore, present the distinct ques-
tion, whether--in the absence of any evidence
that the railroad company had knowingly or neg-
ligently employed an incompetent conductor or
engineer for the train, through the faulty running
of which the collision occurred-—the company is,
in law, responsible for an injury received by a
brakeman of one train, in consequence of the
negligence or mismanagement of the conductor
or engineer of another train of the same Com-
pany? .

~ A comprehensive summary of the branch of the
law applicable to this question, as settled by
cases so uniform and numerous that it is needless
to cite them, in England, New York, Massachu-
setts, Pennsylvania, and the most of the other
States of the Union, is thus stated by Read, J.
delivering theopinion of the Supreme Court of
Pennsylvania, in Caldwell vs. Brown, 6 Am. L.
Register N. S., 752:

“A servant, by entering into his master’s ser-
vice, assumes all the risks of that service which
the master cannot control, including those aris-
ing from the negligence of his fellow servants.
In case of an injury to one servant by the negli-
gence of another, it is immaterial whether he who
causes and he who sustains the injury are or are

_ not engaged in the same or similar labor, or in
positions of equal grade or authority. If they
are acting together, under one master, in carrying
out a common object, they are fellow servants.
The master, indeed, -is bound to use ordinary care
in providing suitable structures, engines, tools
and apparatus, and in selecting proper servants,
and is liable to other servantsin the same employ-
ment if they are injured by his own neglect of
duty. But it makes no difference, Whether, the
master is an individual or a corporation ; in either
case he is responsible to his servants for his own
negligence but not for that of their fellow ser-

But on this general doctrine a single exception
has been engrafted in this State——first, by a di-
vided Court, in Little Miami Railroad Company
vs. Stevens, 20 Ohio, 415, and afterwards by a
full. Court‘ in C. C. and C. R. R. Co. vs. Keary, 3
Ohio St., 201, and thenceforward recognized by

is this, that where one servant is placed in a po-
sition of subordination to, and subject to the or-
ders and control of another servant of a common
master, and the subordinate servant, without
fault of his own, and while in the performance of
his duty, is injured through the negligence of the
superior servant, while actingin the common ser-
vice, an action lies in favor of the inferior servant
so injured, against the master.

But this is the extent and limit of the excep-
tion. Beyond it no case in Ohio has ever gone:
but on the contrary, the language of the Court in
all the cases is careful to exclude the conclusion
that an action might be maintained against the
master by one servant, who has been injured
through the negligence of a fellow servant, where
no relation of superior and subordinate existed
between them.

And the case of Whaalen vs. The M. R. and L.
E. R. R. Co., 8 Ohio St., 249, turned upon this
limitation. The decision in that case was made
by a unanimous bench ; and we are unable to see
how the rulings of the Court below can be sus-
tained without. overruling that case.

The case of Hutchinson vs. Railway Company,
decided by the Court of Exchequer in 1850, (5
Ex. 13., 342,) is even more closely in point. There,
in one aspect of the case assumed by the Court to
be the true one, the party: injured was, as here,
employed as a servant of a railway company on
one train, and was injured by a collision with an-
other train, occurring through the negligence of
other servants of the same company in the man-
agement of the latter train. The Court held that
the company was not responsible, unless the com-
pany had been culpably negligent in the selection
of the servant or servants through whose fault
the injury arose ; and no such negligence appear-
ed in that case, as there does not in this.

Indeed in all the books, I am unable to find a
single case which would justify the rulings oi‘ the
Court below, with the. single exception of Cham
berlain ‘£18. Mn. and Miss. u. R. Co., 11 Wis., 239,
which seems to go to the full length of holding
that a master is in all cases liable for an injury
received by one servant, by means of the negli-
gence of a fellow servant engaged in a common
employment, irrespective of any circumstances of
superiority, subordination, rank or grade. In
going to this extent, I believe the Supreme Court
of Wisconsin stands alone. A majority of this
Court is unwilling to follow it, believing, as we
do, that it would be wrong in itself, and disaster-
ous in its tendencies to every business requiring
many haads to prosecute it. Yet I am unable to
see how, if we sustain the rulings of the Court
below, we can, on any well grounded distinction,

stop short of proceeding to the same extreme
length.
Employers are not omniscient, and if they were,

they would hardly be able to find employees

whose vigilance was incapable of relaxation, and
whose carefulness would never lapse into neg-
ligence. It  therefore unreasonable to ex-
pect such results from employers of ordinary
penetration and insight into character, and wrong
to exact it from them. And if it be a crime, or
quasi crime, as some who argue the question of
the masters responsibility seem unconsciously to
intimate, to put in operation the tremendous and

this Court in subsequent cases. That exception‘

dangerous enginery and natural forces which

aMER1cAN RAILROAD JOURNAL. -

modern civilization has discovered, invented and
applied, it is surely a sufficient answer to a claim
of responsibility on that ground» against the em-
ployer," on the part of the employee, to say that
the latter is a voluntary pa7't'e'ceps crz'm.z'm's. And
in the consideration of questions arising under
the law regulating the rights and obligations of
master and servant, it is important that we should
not forget that the same rules which we apply as
against railways and other rich and powerful cor-
porations, must also be applied with equal hand
to private employers of labor in analogous cases.

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 co-employers, 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 ser-
vant 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 es-
tablishing this exception are based, the members
of this Court, as now constituted, are not respon-
sible ; nor are we at all bound to carry out their
logic to its ultimate consequences. In subsequent
cases, strictly analagous in their facts, those de-_,
cisions will doubtless be accepted as authorita-
tive; 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 de-
cision elsewhere. A majority of the Court are
unwilling to increase the divergence; doubting,
as we do, the wisdom of such a step, and being
unwilling to assume the responsibility of what
would savor so strongly ofjudicial legislation.

A majority of the Court are of opinion that the
Court of Common Pleas erred in overruling the
motion for a new trial, on the ground that the
verdict was against the evidence, and also in the
latter part of the charge to the jury, as being cal-
culated to mislead the jury into the belief that
the plaintiff‘ below was entitled to recover on the
facts of the case above assumed to be shown by
the record.

Judgment reversed, and cause remanded to the
Court of Common Pleas.

 Hon. James M. Stone of Charlestown,
Mass., has been elected President, James S. Dra-
per of Wayland Clerk, and Col. F. J. Parker of
Boston Treasurer of the Massachusetts Central
R. R. Co. The expenditures of the past year have
been $9,771 2.2. It is estimated that three-quar-
ters of a million additional, amounting to $3,750,-
000 in all, will be ample to complete all the
equipments.

5:? The traflic receipts of the European and
North American Railway in December, 1870, were
$21,103 85, against $15,387 54 in 1869, and $14,-
779 31 in 1868.

iv]? The old board of ofliccrs of the St. Louis,
Vandalia, Terre Haute and Indianapolis Railroad
were 1'e-elected on the 12th inst.