Baltimore & Ohio Railroad Company v. Baugh/Dissent Field

by Stephen Johnson Field

United States Supreme Court

149 U.S. 368

Baltimore Company  v.  Baugh

Mr. Justice FIELD, (dissenting.) I am unable to concur in the judgment of reversal in this case. I think the judgment of the circuit court is correct in principle, and in accordance with the settled law of Ohio, where the cause of action arose, which, in my opinion, should control the decision.

The plaintiff below, the defendant in error here, is a citizen of the state of Ohio, and the defendant, the Baltimore & Ohio Railroad Company, is a corporation created under the laws of Maryland. The present action was brought by the plaintiff in the court of common pleas of the county of Belmont, in the state of Ohio. The defendant claimed citizenship in Maryland, by virtue of its incorporation in that state, and it petitioned for and obtained a removal of the action to the circuit court of the United States for the southern district of Ohio. The plaintiff was a fireman on a locomotive of the defendant, which, on the 4th of May, 1885, had been employed in assisting a freight train from Bellaire, in Ohio, to the top of the grade, about 20 miles west of that place, when it was detached from the freight train to return to Bellaire. It would seem that by the regulations or usages of the company it was to return in conformity with orders from the train dispatcher, or upon information from him as to the use or freedom of the road, or, in the absence of such orders or information, by following close behind some regular scheduled train which would carry signals to notify trains coming in the opposite direction that the locomotive was following it. It does not appear what special orders or what information, if any, was on this occasion received by the engineer from the train dispatcher, and by his order the locomotive started back without following any scheduled train. He appears to haverelied upon his ability to avoid the train possibly coming in the opposite direction by going upon a side track, and waiting until it passed. The result was that the locomotive on its way collided with the regular local passenger train, which was running on its schedule time, and had the right of the road. In the collision the plaintiff below was injured to such an extent that his right arm had to be amputated near the shoulder, and he was rendered unable to use his right leg in walking. To recover damages for the injuries sustained he brought the present action against the railroad company, and the question presented is whether the company was liable for the injuries. He obtained a verdict for $6,750. for which, and costs, judgment was entered in his favor.

The locomotive, with the tender attached to it, was called a 'helper,' because it was used in helping trains up the grade from Bellaire. After it was detached from the train helped, it passed under the direction of the engineer, who was from that time its conductor by appointment under the regular rules of the company. The ninth rule provides that 'trains are run under the charge of the conductors thereof, and their directions relative to the management of trains will be observed, except in cases where such directions may be in violation of the rules of this company or of safety, in which cases engineers will call the attention of the conductors to the facts as understood by them, and decline compliance; conductors and engine men being in such cases held equally responsible.' And the tenth rule provides that, 'whenever a train or engine is run without a conductor, the engine man [that is, the engineer] thereof will also be regarded as conductor, and will act accordingly.' The engineer was thus invested from that time with the powers and duties of a conductor. He could then control the movements of the locomotive, and, in the absence of special orders, direct when it should start on its return to Bellaire, the places at which it should stop, and the speed with which it should proceed. The position that the company could not alter its relations to the engineer and those under his direction by such appointment does not rest upon any tenable ground. There certainly is no substantial reason why the company may not at any time constitute one of its employes a conductor of an engine or train. It is a matter resting in its discretion to appoint a conductor or to remove him from that position at any time. The duties and liabilities of the officer and his relations to the company depend upon the nature of the office which he at the time holds, not upon his duties and relations in a previously existing employment. If the corporation, acting by its directors, either by special designation or by established rule, appoint a person as conductor, generally or for a limited time, he takes the duties and incurs the responsibilities of the appointment from that date. The person previously a subordinate or coemploye becomes thereby the superior of the fellow laborer in his powers, and changed in his relations to the company. To say that he continues in his previous subordination and relationship to the company would be like stating that a common soldier taken from the ranks and put in command of a company or regiment of which he was a member still retains his subordinate relations to his former fellow soldiers and to the commander in chief. To hold that an engineer in the position placed by the rule of the company did not become a conductor in fact is refusing to give effect to the express terms of the rule. It is declaring that he shall not be what the established rule of the company declares he shall be. I do not think that this position can be maintained.

A conductor of a train or engine is, by the very nature of the office, its manager and director in the particular service in which it is employed within the general regulations of the company. He directs, subject to such general regulations, when the train or engine shall start, at what speed it shall travel, what special route it shall take within the designated limits of the company, and, when necessary, may designate who shall be employed under him. In the case before us he represented the company in all these respects; otherwise the company was without a representative on the helper, which will not be contended. In its management, he, as conductor, stood in the place of the company, and, if any one was injured by his negligence in the discharge of his duties, the company was responsible.

The court below instructed the jury in substance as follows: That the law assumes that where a person enters into any employment he takes the risks incident to that employment so far as they may result from the nature of the employment itself, or from the negligence or default of his fellow servants,-that is, of those who are not placed in authority and control over him,-but who occupy substantially the same relation to the company as he does; but that, if an injury results to an employe from the negligence or carelessness on the part of one placed in authority over the employes of the company so as to direct and control them, the company is liable; that, therefore, if the engineer and the fireman were fellow servants, as thus described, the plaintiff could not recover; but that if the engineer was the agent or representative of the company, and the fireman acted under his direction and was subject to his orders, and the injury resulted from the default or negligence or wrong of the engineer, then it must be attributed to the company as the negligence, default, or wrong of the company.

In thus instructing the jury the court followed the law as settled by the decisions of the supreme court of Ohio,-in which state the cause of action arose and the case was tried,-that the company was liable if the negligence was by one acting in the character of its representative or agent in directing and controlling the movements of the locomotive, and the party injured was subject to his orders. Any other ruling would have been at variance with those decisions. The law of Ohio on the matter under consideration was the law to control. The courts of the United States cannot disregard the decisions of the state courts in matters which are subjects of state regulation. The relations of employes, subordinate to the directors of the company, but supervising and directing the labors of others under them, to their principals, and the liability of the principals for the negligent acts of their subordinate supervising and directing agents, are matters of legislative control, and are in no sense under the supervision or direction of the judges or courts of the United States. There is no unwritten general or common law of the United States on the subject. Indeed, there is no unwritten general or common law of the United States on any subject. See 1 Tuck. Bi. Comm. Append. 422, 433. The common law may control the construction of terms and language used in the constitution and statutes of the United States, but creates no separate and independent law for them. The federal government is composed of independent states, 'each of which,' as said in Wheaton v. Peters, 8 Pet. 591, 658, 'may have its local usages, customs, and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption. When, therefore, a common-law right is asserted, we must look to the state in which the controversy versy originated.' And there are few subjects upon which there is such diversity of opinion and conflict of decision, not merely between the courts and judges of the different states, but between the judges of the federal courts, as the liability of employers for the negligent acts of their subordinate agents, having control and direction of servants in a common employment under them. Even as to what shall be deemed a common employment, Mr. Beach, a leading writer on contributory negligence, states that there are many 'hundreds of clearly irreconcilable decisions.' Conceding that a federal court, sitting within a state where the law relating to the subject under consideration is unsettled and doubtful, must exercise an independent judgment and declare the law upon the best light it can obtain, this rule has no application where the law of the state is neither unsettled nor doubtful, but is established and certain, and recognized as such by its judicial authorities. While, as we have indicated, there is no general or common law throughout the country-that is, of the United States-as to the extent and limits of the liability of a corporation to its employes in the case of a common employment under a supervising and directing agent, in Ohio the law on the subject is neither uncertain nor doubtful; it has been settled there for many years. In Railroad Co. v. Stevens, 20 Ohio, 415, it was held by the supreme court of that state, over 40 years ago, that where an employer placed one in his employ under the direction of another, also in his employ, such employer was liable for injury to the person placed in a subordinate situation by the negligence of his superior; and that decision has been adhered to ever since. There a railroad company had placed an engineer in its employ under the control of a conductor of one of its trains, who directed when the cars were to start and when to stop, and it was held liable for an injury received by him caused by the negligence of the conductor. A collision had occurred by reason of the omission of the conductor to inform the engineer of a change of place or dered in the passing of trains. The company claimed the exemption from liability on the ground that the engineer and conductor were fellow servants, and that the engineer had assumed by his contract the risk of the negligence of the conductor, and also that public policy forbade a recovery in such cases; but the court rejected both positions. In Railway Co. v. Keary, 3 Ohio St. 201, the same court affirmed the doctrine thus declared, and held that where a brakeman in the employ of a railroad company, on a train under the control of a conductor having exclusive command, was injured by the carelessness of the conductor, the company was responsible, holding that the conductor was the representative of the company upon which rested the obligation to manage the train with skill and care. In its opinion the court said no service was common that did not admit a common participation, and no servants were fellow servants when one was placed in control over the other. In Stone Co. v. Kraft, 31 Ohio St. 287, decided in 1877, that court held that a master was liable for an injury to a servant resulting from the negligence of a superior servant. There the corporation was organized to quarry and manufacture stone, and, while in the employment of the company and engaged in loading stone on its cars, one of the employes received an injury through the carelessness and negligence of an agent and servant of the company in the selection and use of unsafe and dangerous implements and machinery for the purpose of loading the stone upon the cars for transportation. The unsafe and defective machinery was selected by the foreman of the quarry. It was contended that the foreman and the laborers under him were fellow servants, but the court held that the foreman, occupying substantially the relation of principal, was in no just or proper sense a fellow servant, nor in what might be properly denominated a common service, and said: 'The relation existing between them was such as brings the case clearly within the rule established by repeated adjudications of this court and now firmly settled in the jurisprudence of the state,-that where one servant is placed by his employer in a position of subordination to and subject to the orders and control of another, and such inferior servant, without fault, and while in the discharge of his duties, is injured by the negligence of the superior servant, the master is liable for such injury.' It will be observed that the court states in this opinion that the rule of liability was then firmly settled in the jurisprudence of the state. If any rule of law can be considered as settled by judicial decisions, that rule is settled as the law of Ohio. The question is not whether that is the best law for Ohio, but whether it is the law of that state. It will be time to consider of its change or improvement when that matter is submitted to us, which is not yet. If the law were expressed in a statute, no federal court would presume to question its efficacy and binding force. The law of the state on many subjects is found only in the decisions of its courts, and when ascertained and relating to a subject within the authority of the state to regulate, it is equally operative as if embodied in a statute, and must be regarded and followed by the federal courts in determining causes of action affected by it arising within the state. Bucher v. Railroad Co., 125 U.S. 555, 8 Sup. Ct. Rep. 974; Detroit v. Osborne, 135 U.S. 492, 497, 10 Sup. Ct. Rep. 1012. For those courts to disregard the law of the state as thus expressed upon any theory that there is a general law of the country on the subject at variance with it, in cases where the causes of action have arisen in the state, and which, if tried in the state courts, would be governed by it, would be nothing less than an attempt to control the state in a matter in which the state is not amenable to federal authority by the opinions of individual federal judges at the time as to what the general law ought to be,-a jurisdiction which they never possessed, and which, in my judgment, should never be conceded to them. That doctrine would inevitably lead to a subversion of the just authority of the state in many matters of public concern. It would also be in direct conflict with section 721 of the Revised Statutes, which declares that 'the laws of the several states, except where the constitution, treaties, or statutes of the United States 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.' This provision is a re-enactment of section 34 of the original judiciary act. 1 Stat. 92. Under the term 'laws,' as here mentioned, are included not merely those rules and regulations having the force of law which are expressed in the statutes of the states, but also those which are expressed in the decisions of their judicial tribunals. The latter are far more numerous, and touch much more widely the interests and rights of the citizens of a state in their varied relations to each other and to society in the acquisition, enjoyment, and transmission of property, and the enforcement of rights and redress of wrongs. The term 'laws' in the constitution and the statutes of the United States is not limited solely to legislative enactments unless so declared or indicated by the context. When the fourteenth amendment ordains that no state shall deny to any person within its jurisdiction 'the equal protection of the laws,' it means equal protection not merely by the statutory enactments of the state, but equal protection by all the rules and regulations which, having the force of law, govern the intercourse of its citizens with each other and their relations to the public, and find expression in the usages and customs of its people and in the decisions of its tribunals. The guaranty of this great amendment, 'as to the equal protection of the laws,' would be shorn of half of its efficacy if it were limited in its application only to written laws of the several states, and afforded no protection against an unequal administration of their unwritten laws. It has never been denied, that I am aware of, that decisions of the regular judicial tribunals of a state, especially when concurring for a succession of years, are, at least, evidence of what the law of the state is on the points adjudged. The law, being thus shown, is as obligatory upon those points in another similar case, arising in the state, as if expressed in the most formal statutory enactments. If this is not so, I may ask, in anticipation of what I may say hereafter, what becomes of the judicial independence of the states? The doctrine that the application of the so-called general and unwritten law of the country to control a state law, as expressed by its courts, in conflict with it, has the sanction of congress by its supposed knowledge of the decisions of this court to that effect, and its subsequent silence respecting them, does not strike me as having any persuasive force. The silence of congress against judicial encroachments upon the authority of the states cannot be held to estop them from asserting the sovereign rights reserved to them by the tenth amendment of the constitution. Such silence can neither augment the powers of the general government nor impair those of the states. Silence by one or both will not change the constitution and convert the national government from one of delegated and limited powers, or dwarf the states into subservient dependencies. Acquiescence in or silence under unauthorized power can never give legality to its exercise under our form of government.

Marshall, when a member of the Virginia convention called to consider the question of the adoption of the constitution of the United States, in answer to an inquiry as to the laws of what state a contract would be determined, answered: 'By the laws of the state where the contract was made. According to those laws, and those only, can it be decided.' 3 Elliott, Deb. 556.

Judge Tucker, in the appendix to the first volume of his edition of Blackstone, says that the common law has been variously administered or adopted in the several states. Is the federal judicial department to force upon these states views of the common law which their courts and people have repudiated? I cannot assent to the doctrine that there is an atmosphere of general law floating about all the states, not belonging to any of them, and of which the federal judges are the especial possessors and guardians, to be applied by them to control judicial decisions of the state courts whenever they are in conflict with what those judges consider ought to be the law.

The present case presents some singular facts. The verdict and judgment of the court below were in conformity with the law of Ohio, in which state the cause of action arose and the case was tried, and this court reverses the judgment because rendered in accordance with that law, and holds it to have been error that it was not rendered according to some other law than that of Ohio, which it terms the general law of the country. This court thus assumes the right to disregard what the judicial authorities of that state declare to be its law, and to enforce upon the state some other conclusion as law which it has never accepted as such, but always repudiated. The fireman, who was so dreadfully injured by the collision caused by the negligence of the conductor of the engine that his right arm had to be amputated from the shoulder and his right leg was rendered useless, could obtain some remedy from the company by the law of Ohio as declared by its courts, but this court decides, in effect, that that law, thus declared, shall not be treated as its law, and that the case shall be governed by some other law which denies all remedy to him. Had the case remained in the state court, where the action was commenced, the plaintiff would have had the benefit of the law of Ohio. The defendant asked to have the action removed, and obtained the removal to a federal court because it is a corporation of Maryland, and thereby a citizen of that state by a fiction adopted by this court that members of a corporation are presumed to be citizens of the state where the corporation was created, a presumption which, in many cases, is contrary to the fact, but against which no averment or evidence is held admissible for the purpose of defeating the jurisdiction of a federal court. Railroad Co. v. Letson, 2 How. 497; Cowless v. Mercer Co., 7 Wall. 121; Paul v. Virginia, 8 Wall. 168-178; Steamship Co. v. Tugman, 106 U.S. 120, 1 Sup. Ct. Rep. 58. Thus in this case a foreign corporation not a citizen of the state of Ohio, where the cause of action arose, is considered a citizen of another state by a fiction, and then, by what the court terms the general law of the country, but which this court held in Wheaton v. Peters has no existence in fact, is given an immunity from liability in cases not accorded to a citizen of that state under like circumstances. Many will doubt the wisdom of a system which permits such a vast difference in the administration of justice for injuries like those in this case between the courts of the state and the courts of the United States.

I am aware that what has been termed the general law of the country-which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject-has been often advanced in judicial opinions of this court to control a conflicting law of a state. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a state in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the constitution of the United States, which recognizes and preserves the autonomy and independence of the states,-independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the constitution specially authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the state, and, to that extent, a denial of its independence. As said by this court, speaking through Mr. Justice Nelson, 'the general government and the states, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the states, within the limits of their powers not granted, or, in the language of the tenth amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the states.' Collector v. Day, 11 Wall. 113, 124.

To this autonomy and independence of the states their legislation must be as free from coercion as if they were separated entirely from connection with the Union. There must also be the like freedom from coercion or supervision in the action of their judicial authorities. Upon all matters of cognizance by the states, over which power is not granted to the general government, the judiciary must be as free in its action as the courts of the United States are independent of the state courts in matters subject to federal cognizance. 'Such being the separate and independent condition of the states in our complex system, as recognized by the constitution, and the existence of which is so indispensable that, without them, the general government itself would disappear from the family of nations, it would seem to follow,' as said by the court in the case cited, 'as a reasonable, if not a necessary, consequence, that the means and instrumentalities employed for carrying on the operations of their governments, for preserving their existence, and fulfilling the high and responsible duties assigned them in the constitution, should be left free and impaired, should not be liable to be crippled, much less defeated, by the taxing power of another government,' to which we may add, nor by the supervision and action of another government in any form. 'We have said,' continues the court in the same case, 'that one of the reserved powers was that to establish a judicial department; it would have been more accurate, and in accordance with the existing state of things at the time, to have said the power to maintain a judicial department. All of the thirteen states were in possession of this power, and had exercised it at the adoption of the constitution; and it is not pretended that any grant of it to the general government is found in that instrument. It is, therefore, one of the sovereign powers vested in the states by their constitutions, which remained unaltered and unimpaired, and in respect to which the state is as independent of the general government as that government is independent of the states.'

Such being the nature of the judicial department, and the free exercise of its powers being essential to the independence of the states, how can it be said that its decisions as to the law of the state, upon a matter subject to its cognizance, can be ignored and set aside by the courts of the United States for the law or supposed law of another state or sovereignty, be it the general or special law of that state or sovereignty? If a federal court exercise its duties within one of the states where the law on the subject under consideration is uncertain and unsettled, 'where,' as Chief Justice Marshall said, 'the state courts afford no light,' it must, as we have already stated, exercise an independent judgment thereon, and pronounce such judgment as it deems just. But no foreign law, or law out of the state, whether general or special, or any conception of the court as to what the law ought to be, has any place for consideration where the law of the state in which the action is pending is settled and certain. A law of the state of that character, whether expressed in the form of a statute or in the decisions of the judicial department of the government, cannot be disregarded and overruled, and another law, or notion of what the law should be, substituted in its place, without a manifest usurpation by the federal authorities. I cannot permit myself to believe that any such conclusion, when more fully examined, will ultimately be sustained by this court. I have an abiding faith that this, like other errors, will in the end 'dieamong its worshipers.'

The independence of the states, legislative and judicial, on all matters within their cognizance is as essential to the existence and harmonious workings of our federal system as is the legislative and judicial supremacy of the federal government in all matters of national concern. Nothing can be more disturbing and irritating to the states than an attempted enforcement upon its people of a supposed unwritten law of the United States, under the designation of the general law of the country, to which they have never assented, and which has no existence except in the brain of the federal judges in their conceptions of what the law of the states should be on the subjects considered.

The theory upon which inferior courts of the United States take jurisdiction within the several states is, when a right is not claimed under the constitution, laws, or treaties of the United States, that they are bound to enforce, as between the parties, the law of the state. It was never supposed that, upon matters arising within the states, any law other than that of the state would be enforced, or that any attempt would be made to enforce any other law. It was never supposed that the law of the state would be enforced differently by the federal courts sitting in the state, and the state courts; that there could be one law when a suitor went into the state courts and another law when the suitor went into the federal courts, in relation to a cause of action arising within the state,-a result which must necessarily follow if the law of the state can be disregarded upon any view which the federal judge may take of what the law of the state ought to be rather than what it is.

As said by the supreme court of Pennsylvania at an early day, as far back as 1978,-'the government of the United States forms a part of the government of each state.' Respublica v. Cobbet, 3 Dall. 473. To which the same court, over a half century later, added: 'It follows that its courts are the courts of each state; they administer justice according to the laws of the state as construed and settled by its own supreme tribunal. This has been more than once solemnly determined by the supreme court of the Union to be the rule of their decision, whenever the construction of the constitution of the United States, treaties, or acts of congress does not come in question.' Com. v. Pittsburg & C. R. Co., 58 Pa. St. 44.

In Shelby v. Guy, 11 Wheat. 362, 365, this court, in considering the meaning to be given to the words 'beyond the seas,' in a statute of limitations of Tennessee, said: 'That the statute laws of the states must furnish the rule of decision to this court so far as they comport with the constitution of the United States in all cases arising within the respective states, is a position that no one doubts. Nor is it questionable that a fixed and received construction of their respective statute laws, in their own courts, makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious that this admission may, at times, involve us in seeming inconsistencies, as, where states have adopted the same statutes and their courts differ in the construction. Yet that course is necessarily indicated by the duty imposed on us to administer, as between certain individuals, the laws of the respective states, according to the best lights we possess of what those laws are.'

In Beauregard v. New Orleans, 18 How. 497, 502, which was before us in 1855, this court, in speaking through Mr. Justice Campbell, said: 'The constitution of this court requires it to follow the laws of the several states as rules of decision wherever they properly apply. And the habit of the court has been to defer to the decisions of their judicial tribunals upon questions arising out of the common law of the state, especially when applied to the title of lands. No other course could be adopted with any regard to propriety. Upon cases like the present the relation of the courts of the United States to a state is the same as that of its own tribunals. They administer the laws of the state, and to fulfill that duty they must find them as they exist in the habits of the people and in the exposition of their constituted authorities. Without this the peculiar organization of the judicial tribunals of the states and the Union would be productive of the greatest mischief and confusion.'

The position that the plaintiff, the fireman, voluntarily assumed the risk in this case, because he knew the helper had no right to the track without orders, and there was possibly a local train somewhere on the track, by continuing on the train instead of leaving it, does not strike me as having much force. It was not considered of sufficient importance to be called to the attention of the court below, or of the jury. Its suggestion now seems to be an afterthought of counsel. It is not positively shown that any special orders as to the movement of the helper on its return, or any information as to the use or freedom of the road, were received by the engineer from the train dispatcher; but the fireman had no actual knowledge on that point, though he had a right to presume that such was the case, from the fact that immediately upon the receipt of an order given to the conductor, at Burr's Mills, the latter directed that the helper start back. Nor did the fireman have any actual knowledge whether the train he was directed to follow was or was not a regular scheduled train, though he had a right to presume that it was, from the orders of the conductor. His information as to what was known, and consequently directed or omitted, by the engineer on that subject was too imperfect for him to act upon it. His continuance as fireman on the locomotive after its movement to return to Bellaire was not with sufficient knowledge of any failure of the engineer to give the proper orders as to a scheduled train to justify an abandonment of the locomotive. It was under the direction of the engineer, not of the fireman, and he may have felt confident that it could be run on a side track, if necessary, to avoid any possible collision with a train coming in the opposite direction, as was sometimes done. It would be a dangerous notion to put into the heads of firemen and other employes of a railroad company that if they had reason to believe, without positive information on the subject, that dangers attended the course pursued by the movements of the train under the direction of its conductor, they would be deemed to assume the risk of such movements if they did not expostulate with him, and, if he did not heed the expostulation, leave the train, even after it had commenced one of its regular trips. A strange set of legal questions would arise, more embarrassing to the courts than the fellow-servant question, if such action should be deemed essential to the retention by the employe of the right to claim indemnity for injuries which might follow from the course pursued. If the employes could abandon a train after it had commenced one of its regular trips when they had reason to believe, without absolute information, that danger might attend their continuance on it, new strikes of employes would spring up to embarrass the commerce of the country and annoy the community, founded upon such alleged apprehensions. The circumstances attending the cases in which an employe has been held to have voluntarily assumed the risks of an irregular, improper, or ill-advised movement of a train, under directions of its conductor, are essentially different from those of the case before us. The testimony in the record, upon which the allegation is made that the fireman voluntarily assumed the risks taken by the engineer with knowledge of their existence, is of the most flimsy and unsatisfactory character conceivable. It only discloses general ignorance by him of what the engineer did, or of information upon which he acted, as will be seen by its perusal. The allegation, which is founded upon a few broken and detached sentences, loses its entire force when the context is read. The whole testimony bearing upon this subject is given in the note below.

It only remains to notice the observations made upon the decision in the Ross Case, 112 U.S. 377, 5 Sup. Ct. Rep. 184, which seem to me to greatly narrow its effect and destroy its usefulness as a protection to employes in the service of large corporations, under the direction and control of supervising agents. That was an action brought by a locomotive engineer in the employ of the Chicago, Milwaukee & St. Paul Railroad Company to recover damages for injuries received in a collision which was caused by the negligence of the conductor of the train. The company claimed exemption from liability on the ground that the conductor and engineer were fellow servants; but the court charged the jury that it was clear that if the company saw fit to place one of its employes under the control and direction of another, then the two were not fellow servants engaged in the same common employment, within the meaning of the rule of law which was the subject of consideration, and that by its general order the company made the engineer, in an important sense, subordinate to the conductor. To this charge exceptions were taken. The correctness of the charge was the question discussed in the case by counsel, and determined by the court. Its correctness was necessarily sustained by the judgment of affirmance, which could not have been rendered if the exceptions to it were well taken. The majority of the court in their opinion, while admitting that the charge is much like the one in the present case, and might be well said to be sufficient authority for sustaining and affirming the judgment, contend that the court did not attempt to approve the instruction generally, but simply held that it was not erroneous as applied to the facts of the case, and in support of this view cite the language of the court used to show that the conductor of a railway company, exercising certain authority, represents the company, and, therefore, for injuries resulting from his negligent acts the company was responsible, and the statement that the case required no further decision. Clearly, it did not require any further decision, for it covers the instruction objected to, that if the company saw fit to place one of its employes under the control and direction of another, then the two were not fellow servants engaged in the same employment within the meaning of the rule of law as to fellow servants. A conductor of a railway company, directing the movements of its train, and having its general management, illustrates the general doctrine asserted and sought to be maintained throughout the opinion in the Ross Case, that railroad companies in their operations, extending in some instances hundreds and even thousands of miles, and passing through different states, must necessarily act through superintending agents,-employes subordinate to the company, but superior to the employes placed under their direction and control. The necessity of this doctrine of subordinate agencies standing for and representing the company was well illustrated in the duties and powers of a conductor of a train or engine. They were stated as an illustration of the necessity and wisdom of the rule, and not to weaken or narrow the general doctrine asserted in the decision of the court, and which its opinion, in almost every line, attempted to maintain. The necessity of subordinate agencies exists whenever a train or engine is removed from the immediate presence and direction of the head officers of the company.

The opinion of the majority not only limits and narrows the doctrine of the Ross Case, but, in effect, denies, even with the limitations placed by them upon it, the correctness of its general doctrine, and asserts that the risks which an employe of a company assumes from the service which he undertakes is from the negligence of one in immediate control, as well as from a co-worker, and that there is no superintending agency for which a corporation is liable, unless it extends to an entire department of service.

A conclusion is thus reached that the company is not responsible in the present case for injuries received by the fireman from the negligent acts of the conductor of the engine.

There is a marked distinction in the decisions of different courts upon the extent of liability of a corporation for injuries to its servants from persons in their employ. One course of decisions would exempt the corporation from all responsibility for the negligence of its employes, of every grade, whether exercising supervising authority and control over other employes of the company or otherwise. Another course of decisions would hold a corporation responsible for all negligent acts of its agents, subordinate to itself, when exercising authority and supervision over other employes. The latter course of decisions seems to me most in accordance with justice and humanity to the servants of a corporation.

I regret that the tendency of the decision of the majority of the court in this case is in favor of the largest exemptions of corporations from liability. The principle in the Ross Case covers this case, and requires, in my opinion, a judgment of affirmance.

I dissent because, in my judgment, this case comes within the rule laid down in Railway Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. Rep. 184, and the decision unreasonably enlarges the exemption of the master from liability for injury to one of his servants by the fault of another.