BOSWORTH v. ROGERS, 82 F. 975

JENKINS, Circuit Judge (after stating the facts, delivered the opinion of the court). The test of fellow service is a common master and a common service. These must concur. There must be unity of service and control. This principle underlies every ruling upon the subject from the time of Priestley v. Fowler, 3 Mees. & W. 1, and Murray v. Railroad Co., 1 McMull. 384, the pioneer cases upon the subject, and Farwell v. Railroad Corp., 4 Metc. (Mass.) 49 (in which Chief Justice Shaw delivered his masterly exposition of the doctrine of master and servant), down to the latest recorded decision.

The exemption of liability on the part of the master for injury occurring to one servant by the negligence of another servant in a common service is only permitted when the master has discharged Ms obligations to his servant, among which, notably, are:

(1) To nse reasonable care to furnish a reasonably safe place to work in, having regard to the character of the employment; (2) to use reasonable care to provide safe tools and appliances for the doing of the work; (3) to use proper diligence in the hiring of reasonably safe and competent men to perforin their respective duties; (4) in the case of railway employment, to adopt and promulgate proper rules for the conduct of the business. Railroad Co. v. Peterson, 162 U. S. 346-353, 16 Sup. Ct. 843.

The servant relying upon the discharge of these duties bv the master assumes the risks incident to his service and those arising from the default of a fellow servant in the common service. He has a right to rely upon the discharge by the master of his duty with respect to the employment of competent co-servants, and assumes only the risks of injury arising from the default of a co-servant upon the assumption that the do -y of the master has been performed. If that has not been done, and tin: servant is injured by reason thereof, he may recover of the master for the injury.

This is because the master’ has ihe control, and is bound to exercise proper diligence to employ only competent and to discharge an incompetent servant. This duty to the servant continues through the entire service, and furnishes a shield and protection to Mm, subject to which is his assumption of risk. In the case in hand there was no common master. The in testa te of the defendant in error was in the service of the St. Louis Company. The servants through whose fault the jury found the collision to have occurred were in the service of the plaintiff in error, the receiver of the Chicago Company.

The deceased was engaged in the operation of one of the trains of the former company. They who were neglectful and whose neglect caused the death were engaged in the operation of the trains of the receiver of the Chicago Company. There was no common master. The receiver was not bound in duty to Kogers by any obligations of a master, because Sogers was not in Ms service.

It is not correct to say that because the trains of both companies, by agreement between them, were operated over a joint track, under and according to rules and regulations from time to time established by the Chicago Company, therefore the servants of the St. Louis Company in the operation of its trains over the joint track were in the service of the Chicago Company. They were neither operating the trains of the latter company, nor, in any just sense, engaged in its service. It or its receiver had no control over them.

It is true the trains were to be operated in accordance with the rules and regulations established by the Chicago Company. That was indispensable to the operation of a joint track; but, in so operating the trains, the servants of the one company did not become the servants of the other company; the trains of the one company did not become the trains of the other company; the servants of the one company did not,, for the time being, transfer their allegiance to the other company.

They were bound, it is true, to operate the trains according to certain rules and regulations to which their master had agreed; but, in so doing, they discharged their duty to their own master, and not a duty owing by them to the other company. Neither company had control over the servants of the other company. Neither could discharge the servants of the other, and‘the right of discharge is a sure test of control.

It is true that the companies had agreed that, for just cause, either party, upon demand of the other, would discharge any of its servants employed in reference to the joint use of the track; but each for itself had to determine the cause, and whether it would comply with the demand. The stipulation gave no right to one company to discharge the servant of the oilier, and gave no control whatever over him. He owed service to his own master, and to no other, and could not be controlled or discharged by any other. Nor were these men engaged in a common service.

The one set was operating the train of one company; the other set, the train of another company. The service was distinct; none the less so because the two trains, at the 1 one of the injury, were upon the same track. They were engaged in the like sendee, but not in the same service. They were not working to a common end. They were serving separate masters, and in distinct employments. These views, as we think, are abundantly sanctioned by authority. Warburton v. Railway Co., L. R. 2 Exch. 30; Railroad Co. v. Stoermer, 1 U. S. App. 276, 2 C. C. A. 360, and 51 Fed. 518; Railroad Co. v. Craft’s Adm’x, 29 U. S.

App. 687, 16 C. C. A. 175, and 69 Fed. 124; Sawyer v. Railroad Co., 27 Vt. 370; Robertson v. Railroad Co., 160 Mass. 191, 35 N. E. 775; Zeigler v. Railroad Co., 52 Conn. 543; Smith v. Railroad Co., 19 N. Y. 127; Svenson v. Steamship Co., 57 N. Y. 108; Railroad Co. v. Hardy, 57 N. J. Law, 505, 31 Atl. 281, affirmed in court of errors, 58 N. J. Law, 205, 35 Atl. 1130; Railroad Co. v. Armstrong, 49 Pa. St. 186; Philadelphia, W. & B. R. Co. v. State, 58 Md. 372; Railroad Co. v. O’Connor, 119 Ill. 586, 9 N. E. 203; Phillips v. Railway Co., 64 Wis. 475, 25 N. W. 544. There is a class of cases, of which Rourke v.

Colliery Co., 46 Law J. C. P. 283, 1 C. P. Div. 556, Johnson v. City of Boston, 118 Mass. 114, and Ewan v. Lippincott, 47 N. J. Law, 192, are examples, to the effect that one may be in general the servant of one person, but for a special purpose, on a particular occasion, may make himself the servant of another; as where the servant of one is lent, for the time being, to another, to- perform some service for that other, remaining, however, under pay from the former.

In such case it is held by these decisions that, while performing such service, he is a fellow servant with those in the service of the one for whom he is at the time working, although he be under pay from another. We need not here question the correctness of these decisions, since, as we conceive, they are not pertinent to the case in hand; for, as we have said, Bogers was in no just sense working under employment by, or in the service of, or for the purposes of, the plaintiff in error.

The Ewan Case is referred to in the subsequent case of Hardy, in the same court, and is stated to have gone to the extreme, and is not to be considered as infringing upon the general doctrine stated; the Johnson Case was not deemed by the supreme judicial court of Massachusetts in the Bobertson Case to impair the general rule; and the Bourke Case was also distinguished upon its facts from the Warburton Case. The case of Clark v. Railroad Co., 92 Ill. 43, does not sustain the contention of the plaintiff in error.

That was an action by Clark against his master to recover for injuries sustained through the negligence of the servant of another railroad company, and it was held that the master was not guilty of negligence. We are of opinion that the court rightly ruled that Bogers was not a fellow servant of the train crew in the service of the plaintiff in error. It is further objected that the jury was instructed to award damages to the full extent of the statute, and that the language employed is susceptible of that construction, within the decision in Railway Co. v. Austin, 69 Ill. 426.

We are not at liberty to consider this objection, nor other objection which may be made to the charge with respect to damages for failure to call the attention of the jury to the elements of damage, because no requests in either respect were presented, no exception was taken to the charge, and error is not assigned thereon. The overruling of the motion for a new trial cannot be assigned for error. The judgment will be affirmed.