FLIPPIN v. KIMBALL et al., 87 F. 258

SIMONTON, Circuit Judge (after stating the facts). The appellant, Flippiu, could have proceeded in an action at law against the receivers without, leave of the court. 25 that. 433, Act 1888. Of his own accord lie intervened in a suit in equity, and submitted himself to the jurisdiction of the court. By doing this he waived his right to a trial by jury, for it is a fundamental principle that the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction.

If it be conceded or clearly shown Unit a case belongs to this class, ihe trial of questions involved in it belongs to the court itself, no matter wfiat may be its importance or perplexity. Barton v. Barbour, 104 U. S. 133.

This case being one of equitable jurisdiction only, the court was not bound to submit any issue of fact to a jury, and, having done so, was at liberty to disregard the verdict and findings of the jury, either by set'ting them, or any of them, aside, or by letting them stand, and allowing them more or less weight’in its final hearing and decree according to its own view of the evidence in the cause. Improvement Co. v. Bradbury, 152 U. S. 509, 10 Sup. Ct. 177.

So, when the court below, in accordance with the prayer of the petition, ordered an issue out of chancery to try the issues, the verdict was only advisory, and not conclusive upon the court. It liad the right to disregard it, and even to render a decree contrary to it. Watt v. Starke, 101 U. S. 247. These authorities dispose of the assignments of error which look to the result of the verdict of the jury. It was for the court below alone to determine its force and effect, and this court cannot deny its right to disregard it.

Having set aside the verdict, the circuit court proceeded to consider the case, and dismissed the petition. This was in accordance with rules of equity procedure. A similar course was sustained by the supreme court in Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298. It is alleged as error that ihe court dismissed the petition upon the ground that the negligence, if any, causing the accident, was that of a fellow servant of the petitioner.

The assignments of error proceed upon the grounds that the foreman in charge of the wreck was wholly incompetent for the performance of his duty; that the appliances used were defective, and that superior officers of the receiver were present directing, in whole or in part, the operations; and that the foreman in charge of the wreck was entirely inefficient; and that in no event was he the fellow servant of petitioner. As this is an appeal in equity, we must examine the testimony, which is spread out in full on the record. The petitioner, at the time of the accident, was 24 years of age.

He had been in the employment of the receivers one month as a

section hand, and had seen service before on railroads for two months and a half. The wreck occurred about two miles from Crewe, where he was employed, and he was ordered by his

section master to go with other hands to the wreck to assist in clearing the track. The gang engaged in this work was made up of hands from several parts of the road, who were under the direction of Emmett Hanna or Ferrell. This man was the adopted son of Capt. B. C. Hanna, who was wrecking master, and was his chief assistant, acting for him in his absence. On this day the elder Hanna was engaged on another part of the road.

The evidence shows that Emmett Ferrell had the perfect confidence of his chief; that, notwithstanding his youth (he was either 22 or 23), he had had large experience; and he enjoyed among the railroad people the reputation of a skillful and efficient man in charge of wrecks.

It also appears from the evidence that on the day of the accident he was in full charge, and although there were present Sowers, the track supervisor, Wells, the road foreman of engines, Sanderson, assistant superintendent of the motivé power, and perhaps other officials, none of them assumed charge of the wreck, as it was not in the line of their duties, but left everything to .Ferrell. Nor does the preponderance of the evidence lead to the conclusion that the appliances used were defective.

It is true that in the beginning a rope, used at the derrick broke, but nothing occurred as the result of it, and, the rope having been mended, or another substituted, no further break occurred. The accident probably occurred because, the cars not having been fastened to the track, there was too much weight upon the derrick, and a lateral strain. These caused it to upset, and so the petitioner was hurt. If there was negligence in this, it was the negligence of Emmett Ferrell, who was at the time directing the operations, and himself assisting in arranging the blocks to the wheels of a car.

These blocks were not regularly prepared, but were made of fence rails, parts of cross-ties,' and wood picked up on the track. Evidence was offered showing that on one system of railways wrecking cars always carried blocks prepared for and suitable to this purpose. But there is no evidence of a custom or usage of this character; nor is there evidence that ordinary blocks, obtained as those were on this occasion, do not serve their purpose. It must be remembered that there is no presumption of negligence in this case against the defendant, the action being by an employé against an employer.

The burden is on the petitioner. Railroad Co. v. Barrett, 166 U. S. 617, 17 Sup; Ct. 707. So the case really turns upon the point, which controlled the circuit court, if the accident was the result of negligence, the negligence was that of Emmett Ferrell; and the question is, was he the fellow servant of the petitioner? He was the foreman or acting foreman of a wreck car at the wreck. His position is thus explained by Mr.

Sanderson, who seems to be an intelligent witness: “He is a boss or acting foreman at 1hat time in charge of a gang or collection of men who may liare been gathered up as has been most convenient: exactly the same relative position as a

section foreman or car foreman would be with a gang working under him.” In determining this question it is unnecessary to quote the multitude of decisions bearing upon it, often contradictory, and frequently obscure. The general rule is we! stated in a note to Railroad Co. v. Smith, 8 C. C.

A. 670 (s. c. 59 Fed. 993), quoting for its support many authorities: “It makes no difference in the application of the rule exempting the master from liability for injuries to his servants for the acts of the co-servants that the one receiving the injury is inferior in grade and subject to the orders of the one by whose negligence the injury is caused, if both are engaged in the same general business, accomplishing one and the same general purpose.” We held in Thom v. Pittard, 8 U. S. App. 597, 10 C. C. A. 352, and 62 Fed. 232, that

section men and laborers on repair trains, being engaged iu the common purpose of keeping the railroad in order, are fellow servants. In Deavers v. Spencer, 25 U. S. App. 411, 17 C. C. A. 215, and 70 Fed. 480, this court held that a track hand, who was injured by the alleged negligence of the track foreman while he was working on a railroad, was the fellow servant of the foreman, and could not recover against the receivers for the injuries he had suffered. In the circuit court of appeals of the Fifth circuit — -McGrath v. Railway Co., 23 U. S. App. 86, 9 C. C.

A. 133, and 60 Fed. 555 — it was held that “a railroad employe, who was one of a gang of men employed to remove a wreck, cannot recover from the company for injuries caused by the negligence of the wreck master, who lias charge of the wrecking car.” And in Railway Co. v. Rogers, 13 U. S. App. 547, 6 C. C. A. 403, and 57 Fed. 378, the same court held that the acting foreman of a gang of laborers engaged in repairing a bridge was the fellow servant, engaged in the same employment, with a member of the gang who ivas injured by the falling of a piece of timber during the repairs of the bridge.

Besides this, the petitioner is a man matured. He was in the employment of the receivers as a

section hand to ivork on the track. He was not placed in a position of undisclosed danger; but he was doing work whose risks were obvious. Necessarily he assumed those risks when he went on with Ms work, and the mere happening of the accident cannot impute negligence to his employer. Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298. The judgment of the circuit court is affirmed.