O'CONNOR v. ATCHISON, T. & S. F. RY. CO., 137 F. 503

JENKINS, Circuit Judge.

The declaration in each count, while averring that the service in which the deceased came to his death was without the service he had contracted to render, and while asserting that he was ignorant of the attendant danger of the service h,e was ordered to perform, and that the roadmaster knew of the danger but failed to advise the deceased thereof, nowhere asserts that the defendant in error or its roadmaster knew, or had reason to b.elieve, or by the exercise of reasonable care and observation could have known, that the deceased was inexperienced or of immature judgment, or of tender years, or ignorant of the attendant danger of the service to which he was ordered.

In dealing with the facts pleaded, we are compelled to assume that the deceased was a man of mature judgment, of ordinary intelligence, and acquainted with the workings of the laws of nature which are of common observation.

Assuming, then, that the roadmaster was a vice principal; that the deceased was temporarily withdrawn from the service he had engaged to perform; that he was directed to enter upon another and more dángerous service, with the perils of which he was unacquainted (if we are permitted to assume that he was ignorant of the law of gravity)—the question arises whether the declaration is sufficient without an allegation that the railway company or its roadmaster knew or had reasonable cause to believe that the deceased was ignorant of the dangers attendant upon the service to which he was ordered.

This question is not a new one in this court. In Reed v. Stockmeyer, 74 Fed. 186, 20 C. C. A. 381, we held that the liability of a master in case of injury to his servant received in an employment outside of that for which he had engaged arises, not from the direction of the master to the servant to depart from the one service and engage in the other and more dangerous work, but from failure to give proper warning of the attendant danger in cases where the danger is not obvious, or where the servant is of immature years, or unable to comprehend the danger. This principle is sustained by abundant authority.

In addition to the cases considered in our decision, we need only refer to the cases of Klochinski v. Shores Lumber Company, 93 Wis. 417, 67 N. W. 934; Murphy v. Rockwell Engineering Company (N. J. Sup.) 57 Atl. 444; Felton v. Girardy, 104 Fed. 127, 43 C. C. A. 439; Deisenrieter v. Kraus-Merkel Malting Company, 97 Wis. 279, 289, 72 N. W. 735; Sladky v. Marinette Lumber Company, 107 Wis. 250, 260, 83 N. W. 514; Wagner v. The Plano Manufacturing Company, 110 Wis. 48, 85 N. W. 643.

So far as recovery is sought by reason of the forcible striking of the car by the engine, caused by the carelessness of those operating the engine, it is clear that the deceased was a fellow servant with the operator. Northern Pacific Railroad Company v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 994; Martin v. Atchison, Topeka & Santa Fé Railroad Company, 166 U. S. 399, 17 Sup. Ct. 603, 41 L. Ed. 1051; Northern Pacific Railway Company v. Dixon, 194 U. S. 338, 24 Sup. Ct. 683, 48 L. Ed. 1161.

We need not consider the contention that the master, failing in duty to his servant, cannot avoid liability because the negligence of a fellow servant contributed in some degree to the injury, because we hold there is no apt allegation in this declaration showing failure of duty on the part of the master. ■The judgment is affirmed.