McDONALD et al. v. BUCKLEY, 109 F. 290

After stating the facts as above, the opinion of the court was delivered by PARDEE, Circuit Judge. There are seven assignments of error, but we find it unnecessary to consider any but the third, to the effect that the court erred in refusing to instruct the jury to find a verdict for the defendants, and the seventh, which complains of the refusal of the court to instruct the jury that, if the injury was the result of any carelessness of the foreman, Griffith, while he was engaged in the work of pile driving, he was a fellow servant, and defendants cannot be'held responsible.

There was no evidence tending to show that the master did not furnish safe and proper machinery and appliances, nor that the master did not use due and proper care in the selection of competent employés.

On the facts given, as in the above statement, and taking the evidence in the most favorable light for the plaintiff, the case presented is one where a foreman who had the power to select, employ, and discharge, and who had the direction of the work to be performed, and who was at the time engaged with the plaintiff and others in carrying on the operations, was guilty of negligence in directing the work, which negligence resulted in injury to the plaintiff; and the question presented for decision is whether, under these circumstances, the foreman and the plaintiff were fellow servants.

In the much-considered leading case of Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772, there is a full discussion of the fellow-servant doctrine, and therein a locomotive engineer, who had charge of his engine, and directed its operations, was held to be a fellow servant with a fireman on the same locomotive, who was subject to his orders, and generally under his direction. The principles declared in the Baugh Case are restated and approved in Railroad Co. v. Keegan, 160 U. S. 259, 263, 16 Sup. Ct. 269, 270, 40 L. Ed. 418, 421, as follows: “We field in Railroad Co. v. Baugh, 149 U.

S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772, tfiat an engineer and fireman of a locomotive engine running alone on a railroad witfiout any train attaefied, wfien engaged on sucfi duty, were fellow servants of tfie railroad company; lienee tfiat tfie fireman was precluded from recovering damages from tfie company for injuries caused, during tfie running, by tfie negligence of tfie engineer.

In tfiat ease it was dedared that: ‘Prima facie, all who enter the employment of a single master are engaged in a common service, and are fellow servants. * * * All enter in the service of the same master to further his interests in the one enterprise.’ And while we in that case recognized that the heads of separate and distinct departments of a diversified business, under certain circumstances, be considered, with respect to employés under them, vice principals or representatives of the master as fully and as completely as if the entire business of the master was by him placed under the charge of one superintendent, we declined to affirm that each separate piece of work was a distinct department, and made the one having control of that piece of work a vice principal or representative of the master.

It was further declared that ‘the danger from the negligence of one specially in charge of the particular work is as obvious and as great as from that of those who are simply coworkers with him in it.

Each is equally with the other an ordinary risk of the enrploypient,’ which the employé assumes when entering upon the employment, whether the risk be obvious or not It was laid down that the rightful test to determine whether the negligence complained of was an ordinary risk of the employment was whether the negligent act constituted a breach of positive duty owing by the master,' — such as that of taking fair and reasonable iirecautions to surround his employés with fit and careful coworkers, and the furnishing to such employés of a reasonably safe place to work, and reasonably safe tools or machinery with which to do the work: thus making the question of liability of an employer for an injury to his employé turn rather on the character of the alleged negligent act than on the relations of the employés to each other, so that, if the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but, if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is liable therefor.” And the application of these principles resulted in holding that the foreman of the night gang in the service of a railroad company, •who had direction of the operations, — that is, the coupling of cars and movement of the same, — was a' fellow servant with the members of the force employed under him.

Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 994: “H. was a foreman of an extra gang of laborers for plaintiff in error on its road, and as such had charge of and superintended the gang in putting in ties and assisting in keeping in repair three sections of the road. He had power to hire and discharge the hands (IB in number) in the gang, and had exclusive charge of their direction and management in all matters connected with their employment. The defendant in error was one of that gang, hired by II.. and subject, as a laborer, while on duty with the gang, to his authority.

While on such duty, the deféndant in error suffered serious injury through the alleged negligence of II., acting as foreman in the course of his employment, and sued the railroad company to recover damages for those injuries. Held, that II. was not such a superintendent of a separate department, nor in control of such a distinct branch of the work of the company, as would he necessary to render it liable to a co-employ6 for his neglect; but that he was a fellow workman in fact as well as in law, whose negligence entailed no such liability on the company as was sought to be enforced in this action.” In Martin v.

Railroad Co., 166 U. S. 399, 17 Sup. Ct. 603, 41 L. Ed. 1051, the points decided, as reported in the syllabus, are as follows: “The plaintiff in error was in the employment of the defendant in errólas a common laborer. While on a hand car on the road, proceeding to his place of work, he was run into by a train, and seriously injured. It was claimed that the collision was caused by carelessness and negligence on the part of other employés of the company, — road master, foreman of the gang of laborers, conductors, etc.

Held, that the co-employés whose negligence was alleged to have caused the Injury were fellow servants of the plaintiff, and hence that the defendant was not liable for the injuries caused by that negligence.” See, also, Mining Co. v. Whelan, 168 U. S. 86, 89, 18 Sup. Ct. 40, 42 L. Ed. 390. In Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L.

Ed. 181, there is an exhaustive review of decisions and opinions involving the question of who are fellow servants, and the principles declared, in the Baugh Case, and followed since then by the supreme court, were commended and reaffirmed. - Considering and applying the rules laid down by the supreme court in the cases above mentioned, we are constrained to, held in the instant case that,- although Griffith was the foreman, and had charge and ¡direction of the operations of the pile driver and of all the employs in the pile-driver gang, with the power to employ and discharge, yet, while engaged in actual work of operating the pile driver, giving the signals to the engineer for the fall of the hammer, he was a fellow servant with the other members of the gang, and that any negligence'committed by him while thus working was his own personal negligence, for which his masters are not responsible.

It follows that the third and seventh assignments of error are well taken, and that the trial court erred in refusing the instructions therein referred to. The judgment of the circuit court is reversed, and the cause is remanded, with instructions to grant a new trial.