NORTHERN PAC. R. CO. v. PETERSON.

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

By the verdict of the jury, under the charge of the court, we must take the fact to be that Holverson was foreman of the extra gang for the defendant company, and that he had charge of and superintended the gang in the putting in of the ties, and assisting in keeping in repair the portion of the road included within the three sections; that he had power to hire and discharge the hands in his gang, then amounting to 13 in number, and had exclusive charge of the direction and management of the gang in all matters connected with their employment; that the plaintiff below was one of the gang of hands so hired by Holverson, and was subject to the authority of Holverson in all matters relating to his duties as laborer. Upon these facts the courts below have held that the plaintiff and Holverson were not fellow servants, in such a sense as to preclude plaintiff recovering from the railroad company damages for the injuries he sustained through the negligence of Holverson, acting in the course of his employment as such foreman.

In the course of the review of the judgment by the United States circuit court of appeals, that court held that the distinction applicable to the determination of the question of a co-employ e was not 'whether the person has charge of an important depar ment of the master's service, but whether his duties are exclusively those of supervision, direction, and control over a work undertaken by the master, and over subordinate employees engaged in such work, whose duty it is to obey, and whether he has been vested by the common master with such power of supervision and management,' Continuing, the court said that 'the other view that has been taken is that whether a person is a vice principal is to be determined solely by the magnitude or importance of the work that may have been committed to his charge; and that view is open to the objection that it furnishes no practical or certain test by which to determine, in a given case, whether an employ e has been vested with such departmental control, or has been 'so lifted up in the grade and extent of his duties,' as to constitute him the personal representative of the master. That this would frequently be a difficult and embarrassing question to decide, and that courts would differ widely in their views, if the doctrine of departmental control was adopted, is well illustrated by the case of Borgman v. Railway Co., 41 Fed. 667, 669. We are of the opinion, therefore, that the nature and character of the respective duties devolved upon and performed by persons in the same common employment, should, in each instance, determine whether they are, or are not, fellow servants, and that such relation should not be deemed to exist between two employees, where the function of one is to exercise supervision and control over some work undertaken by the master which requires supervision, and over subordinate servants engaged in that work, and where the other is not vested by the master with any such power of direction or management.' 4 U. S. App. 574, 578, 2 C. C. A. 157, 51 Fed. 182. The court thereupon affirmed the judgment.

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

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

In addition to the liability of the master for his neglect to perform these duties, there has been laid upon him by some course a further liability for the negligence of one of his servants in charge of a sep rate department or branch of business, whereby another of his employees has been injured, even though the neglect was not of that character which the master owed, in his capacity as master, to the servant who was injured. In such case it has been held that the neglect of the superior officer or agent of the master was the neglect of the master, and was not that of the co-employ e, and hence that the servant, who was a subordinate in the department of the officer, could recover against the common master for the injuries sustained by him under such circumstances. It has been already said that Holverson sustained no such relation to the company, in this case, as would uphold a liability for his acts based upon the ground that he was a superintendent of a separate and distinct branch or department of the master's business. It is proper, therefore, to inquire what is meant to be included by the use of such a phrase.

A leading case on this subject in this court is that of Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184. In that case a railroad corporation was held responsible to a locomotive engineer in the employment of the company for damages received in a collision which was caused by the negligence of the conductor of the train drawn by the engine upon which plaintiff was engineer. This court held the action was maintainable, on the ground that the conductor, upon the occasion in question, was an agent of the corporation, clothed with the control and management of a distinct department, in which his duty was entirely that of direction and superintendence; that he had the entire control and management of the train, and that he occupied a very different position from the brakemen, porters, and other subordinates employed on it; that he was in fact, and should be treated as, a personal representative of the corporation, for whose negligence the corporation was responsible to subordinate servants. The engineer was permitted to recover on that theory. These facts give some indication of the meaning of the phrase.

In the above case the instruction given by the court at the trial, to which exception was taken, was in these words: 'It is very clear, I think, that if the company sees fit to place one of its employees under the control and 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.' That instruction, thus broadly given, was not, however, approved by this court in the Ross Case. Such ground of liability—mere superiority in position, and the power to give orders to subordinates—was denied. What was approved in that case, and the foundation upon which the approval was given, is very clearly stated by Mr. Justice Brewer in the course of the opinion delivered in the case of Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, at page 380, 149 U. S., and page 914, 13 Sup. Ct., and the following pages. In the Baugh Case it is also made plain that the master's responsibility for the negligence of a servant is not founded upon the fact that the servant guilty of the neglect had control over, and a superior position to that occupied by, the servant who was injured by his negligence. The rule is that, in order to form an exception to the general law of nonliability, the person whose neglect caused the injury must be 'one who was clothed with the control and management of a distinct department, and not a mere separate piece of work in one of the branches of service in a department.' This distinction is a plain one, and not subject to any great embarrassment in determining the fact in any particular case.

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

The subject is further elaborated in the case of Howard v. Railroad Co., 26 Fed. 837, in an opinion by Mr. Justice Brewer, then circuit judge of the Eighth circuit. The other view is stated very distinctly in the cases of Borgman v. Railroad Co., 41 Fed. 667, and Woods v. Lindvall, 1 C. C. A. 37, 48 Fed. 62. This last case is much stronger for the plaintiff than the one at bar. The foreman in this case bore no resemblance, in the importance and scope of his authority, to that possessed by Murdock in the Woods Case, supra. These cases which have been cited serve to illustrate what was in the minds of the courts when the various distinctions as to departments and separate branches of service were suggested. In the Baugh Case the engineer and fireman of a locomotive engine running alone on the railroad, and without any train attached, were held to be fellow servants of the company, so as to preclude the fireman from recovering from the company for injuries caused by the negligence of the engineer.

The meaning of the expression 'departmental control' was again, and very lately, discussed in Railroad Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, where it was held, as stated in the headnote, that a common day laborer, in the employ of a railroad company, who, while working for the company, under the orders and direction of a section boss or foreman, on a culvert on the line of the company's road, receives an injury through the neglect of a conductor and an engineer in moving a particular passenger trian upon the company's road, is a fellow servant of such engineer and of such conductor, in such a sense as exempts the railroad company from liability for the injury so inflicted.

The subject is again treated in Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269 (decided at this term), where the men engaged in the service of the railroad company were employed in uncoupling from the rear of trains cars which were to be sent elsewhere, and in attaching other cars in their place; and they were held to be fellow servants, although the force, consisting of five men, was under the orders of a boss who directed the men which cars to uncouple and what cars to couple, and the neglect was alleged to have been the neglect of the boss, by which the injury resulted to one of the men. This court held that they were fellow servants, and the mere fact that one was under the orders of the other constituted no distinction, and that the general rule of nonliability applied.

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

This boss of a small gang of 10 or 15 men, engaged in making repairs upon the road, wherever they might be necessary, over a distance of three sections, aiding and assisti g the regular gang of workmen upon each section as occasion demanded, was not such a superintendent of a separate department, nor was he is control of such a distinct branch of the work of the master, as would be necessary to render the master liable to a co-employ e for his neglect. He was in fact, as well as in law, a fellow workman. He went with the gang to the place of work in the morning, stayed there with them during the day, superintended their work, giving directions in regard to it, and returned home with them in the evening, acting as a part of the the crew of the hand car upon which they rode. The mere fact, if it be a fact, that he did not actually handle a shovel or a pick, is an unimportant matter. Where more than one man is engaged in doing any particular work, it becomes almost a necessity that one should be boss, and the other subordinate, but both are, nevertheless, fellow workmen.

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

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

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

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

Mr. Chief Justice FULLER, Mr. Justice FIELD, and Mr. Justice HARLAN dissent.