MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
The third question certified to this court, and the only one it is necessary for us to consider, involves the inquiry whether the plaintiff Hambly and the conductor and engineer of the passenger train were, either by the common law or the statute of Dakota, fellow-servants in such sense as to exempt the defendant railway from liability.
There is probably no subject connected with the law of negligence which has given rise to more variety of opinion than that of fellow-service. The authorities are hopelessly divided upon the general subject as well as upon the question here involved. It is useless to attempt an analysis of the cases which have arisen in the courts of the several States, since they are wholly irreconcilable in principle, and too numerous even to justify citation. It may be said in general that, as between laborers employed upon a railroad track and the conductor or other employes of a moving train, the courts of Massachusetts, Rhode Island, New York, Indiana, Iowa, Michigan, North Carolina, Arkansas, and Wisconsin hold the relation of fellow-servants to exist. Farwell v. Boston & Worcester Railroad, 4 Met. (Mass.) 49; Clifford v. Old Colony Railroad, 141 Mass. 564; Brodeur v. Valley Falls Co., 17 Atl. Rep. 54; Harvey v. New York Central Railroad, 88 N.Y. 481; Gormley v. Ohio & Mississippi Railway, 72 Indiana, 31; Collins v. St. Paul & Sioux City Railroad, 30 Minnesota, 31; Pennsylvania Railroad v. Wachter, 60 Maryland, 395; Houston &c. Railway v. Rider, 62 Texas, 267; St.
Louis & Iron Mountain Railway v. Shacklford, 42 Arkansas, 417; Blake v. Maine Central Railroad, 70 Maine, 60; Ryan v. Cumberland Valley Railroad, 23 Penn. St. 384; Sullivan v. Miss. & Mo. Railroad, 11 Iowa, 421; Fowler v. Chicago & Northwestern Railway, 61 Wisconsin, 159; Kirk v. Atlantic &c. Railway, 94 N.C. 625; Quincy Mining Co. v. Kitts, 42 Michigan, 34; Keystone Bridge Co. v. Newberry, 96 Penn. St. 246: while in Illinois, Missouri, Virginia, Ohio, and Kentucky the rule is apparently the other way. Chicago & Northwestern Railroad v. Moranda, 93 Illinois, 302; Sullivan v. Missouri Pacific Railway, 97 Missouri, 113; Richmond & Danville Railroad v. Normont, 4 S.E. Rep. 211; Dick v. Railroad Co., 38 Ohio St. 389; Louisville &c. Railroad v. Caven, 9 Bush, 559; Madden v. Chesapeake & Ohio Railway, 28 W. Va. 610. The cases in Tennessee seem to be divided. East Tennessee &c. Railroad v. Rush, 15 Lea, 145; Louisville & Nashville Railroad v. Robertson, 9 Heisk. 276; Haley v. Mobile & Ohio Railroad, 7 Baxter, 239; Nashville & Decatur Railroad v. Jones, 9 Heisk. 27; East Tennessee &c. Railroad v. Gurley, 12 Lea, 46.
In this court the cases involving the question of fellow-service have not been numerous nor, perhaps, altogether harmonious. The question first arose in the case of Randall v. Baltimore and Ohio Railroad Company, 109 U.S. 478, in which a brakeman, working a switch for his train on one track in a railroad yard, was held to be a fellow-servant of an engineer of another train upon an adjacent track, upon the theory that the two were employed and paid by the same master, and that their duties were such as to bring them to work at the same place at the same time, and their separate services had as a common object the moving of trains. It is difficult to see why, if the case under consideration is to be determined as one of general and not of local law, it does not fall directly within the ruling of the Randall case. The services of a switchman in keeping a track clear for the passage of trains do not differ materially, so far as actions founded upon the negligence of train men are concerned, from those of a laborer engaged in keeping the track in repair;
neither of them is under the personal control of the engineer or conductor of the moving train, but both are alike engaged in an employment necessarily bringing them in contact with passing engines, and in the "immediate common object" of securing the safe passage of trains over the road. As a laborer upon a railroad track, either in switching trains or repairing the track, is constantly exposed to the danger of passing trains, and bound to look out for them, any negligence in the management of such trains is a risk which may or should be contemplated by him in entering upon the service of the company. This is probably the most satisfactory test of liability. If the departments of the two servants are so far separated from each other that the possibility of coming in contact, and hence of incurring danger from the negligent performance of the duties of such other department, could not be said to be within the contemplation of the person injured, the doctrine of fellow-service should not apply. In this view it is not difficult to reconcile the numerous cases which hold that persons whose duty it is to keep railroad cars in good order and repair are not engaged in a common employment with those who run or operate them. The case of Northern Pacific Railroad v. Herbert, 116 U.S. 642, is an illustration of this principle. The plaintiff in this case was a brakeman in defendant's yard at Bismark, where its cars were switched upon different tracks and its trains were made up for the road. He received an injury from a defective brake, which had been allowed to get out of repair through the negligence of an officer or agent of the company who was charged with the duty of keeping the cars in order. It was held, upon great unanimity of authority both in this country and in England, that the person receiving and the person causing the injury did not occupy the relative position of fellow-servants. See also Hough v. Railway Co., 100 U.S. 213; Union Pacific Railway v. Daniels, 152 U.S. 684. Even in Massachusetts, whose courts have leaned as far as any in this country in supporting the doctrine of fellow-service, it has been held that agents who are charged with the duty of supplying safe machinery are not to be regarded as fellow-servants with those
who are engaged in operating it. Ford v. Fitchburg Railroad, 110 Mass. 240.
Directly in line with the case of Randall v. B.&O. Railroad Co. is that of the Quebec Steamship Co. v. Merchant, 133 U.S. 375, in which the stewardess of a steamship belonging to a corporation brought suit to recover damages for personal injuries sustained by her by reason of a defective railing at a gangway, which gave way as she leaned against it, and precipitated her into the water. The railing had been recently removed and the gangway opened to take off some freight, and had not been properly replaced by the porter and carpenter of the ship whose duty it was to replace them. It was held that, as the porter and carpenter were fellow-servants with the stewardess, the corporation was not liable. Said Mr. Justice Blatchford: "As the porter was confessedly in the same department with the stewardess, his negligence was that of a fellow-servant. The contention of the plaintiff is that, as the carpenter was in the deck department and the stewardess in the steward's department, those were different departments in such a sense that the carpenter was not a fellow-servant with the stewardess. But we think that, on the evidence, both the porter and the carpenter were fellow-servants with the plaintiff. The carpenter had no authority over the plaintiff, nor had the porter. . . . There was nothing in the employment or service of the carpenter or the porter which made either of them any more the representative of the defendant than the employment and service of the stewardess made her such representative." The division of the crew into departments was treated as evidently for the convenience of administration upon the vessel, but having no effect upon the question of fellow-service. See also Baltimore & Ohio Railroad v. Andrews, 50 Fed. Rep. 728.
The case of the Chicago, Milwaukee &c. Railway v. Ross, 112 U.S. 377, is claimed to have laid down a different doctrine, and to be wholly inconsistent with the defence set up by the railroad in this case. This action was brought by the engineer of a freight train to recover damages occasioned by the joint negligence of the conductor of his own train and
that of a gravel train with which it came in collision. The case was decided not to be one of fellow-service upon the ground that the conductor was "in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants." The court drew a distinction "between servants of a corporation, exercising no supervision over others engaged with them in the same employment, and agents of a corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence." In that particular case the court found that the conductor had entire control and management of the train to which he was assigned, directed at what time it should start, at what speed it should run, at what stations it should stop, and for what length of time, and everything essential to its successful movements, and that all persons employed upon it were subject to his orders. Under such circumstances he was held not to be a fellow-servant with the fireman, brakeman, and engineer, citing certain cases from Kentucky and Ohio, which maintained the same view.
It may be observed that quite a different question was raised in that case from the one involved here, in the fact that the liability of the company was placed upon a ground which has no application to the case under consideration, viz., that the person sustaining the injury was under the direct authority and control of the person by whose negligence it was caused. That it was not, however, intended in that case to lay down as a universal rule that the company is liable where the person injured is subordinate to the person causing the injury, is evident from the latest deliverance of this court in Baltimore & Ohio Railroad v. Baugh, 149 U.S. 368, in which an engineer and fireman were held to be, when engaged in their respective duties as such, fellow-servants of the railroad company, and the firemen precluded by principles of general law from recovering damages from the company for injuries caused by the negligence of the engineer.
Neither of these cases, however, is applicable here, since they involved the question of "subordination" of fellow-servants
and not of "different departments." Of both classes of cases, however, the same observation may be made, viz., that to hold the principal liable whenever there are gradations of rank between the person receiving and the person causing the injury, or whenever they are employed in different departments of the same general service, would result in frittering away the whole doctrine of fellow-service. Cases arising between persons engaged together in the same identical service, as, for instance, between brakemen of the same train or two seamen of equal rank in the same ship, are comparatively rare. In a large majority of cases there is some distinction either in respect to grade of service, or in the nature of their employments. Courts, however, have been reluctant to recognize these distinctions unless the superiority of the person causing the injury was such as to put him rather in the category of principal than of agent, as, for example, the superintendent of a factory or railway, and the employments were so far different that, although paid by the same master, the two servants were brought no farther in contact with each other than as if they had been employed by different principals.
We think this case is indistinguishable in principle from Randall's case, which was decided in 1883, and has been accepted as a sound exposition of the law for over ten years; and that, unless we are prepared to overrule that case, the third question certified must be answered in the affirmative. The authorities in favor of the proposition there laid down are simply overwhelming.
We have thus far treated this case as determinable by the general and not by the local law, as was held to be proper both in the Ross case and in the case of Baugh. In so holding, however, the court had in view only the law of the respective States as expounded by their highest courts. Wherever the subject is regulated by statute, of course the statute is applied by the Federal courts pursuant to Revised Statutes, section 241, as a "law" of the State.
By section 3753, Compiled Laws of Dakota Territory, in one of the courts of which this case was originally
commenced, "an employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employe." In the case of Elliot v. Chicago, Milwaukee &c. Railroad, 41 N.W. Rep. 758, a case which arose after the enactment of the above statute, the Supreme Court of the Territory held that a section foreman and a train conductor were co-employees within the purview of this statute, and were "engaged in the same general business." While this construction, given by the Supreme Court of a Territory, is not obligatory upon this court, it is certainly entitled to respectful consideration, and in a doubtful case might well be accepted as turning the scale in favor of the doctrine there announced. The opinion is a very elaborate one, reviews a large number of cases, and follows those of New York, Pennsylvania, and Massachusetts, as founded upon sounder principles. We may safely assume that the construction thus given to this statute will not be overruled by the courts of the two States which have succeeded the Supreme Court of the Territory without most cogent reasons for their action.
The third question certified must be answered in the affirmative.
The CHIEF JUSTICE, MR. JUSTICE FIELD, and MR. JUSTICE HARLAN dissented.