Northern Pac. R. Co. v. Peterson, 51 F. 182

Thayer, District Judge, after stating the case as above, delivered the opinion of the court. The chief question in this case, and the only one which we deem it necessary'to consider, is whether, on the state of facts disclosed by the record, Peterson, the plaintiff, and Holverson, the foreman, wer.e fellow servants. The issue concerning the alleged- negligence of the ) crew on the rear hand car was fairly presented by the charge of the lower court, and the jury have determined that issue adversely to the ¡contention of the defendant company.

It may be conceded that under the rule which prevails in Wisconsin, where the accident occurred, and i in, some other states as well, Peterson and Holverson would be regarded | as. fellow servants, notwithstanding the difference in .their rank; and :prior-to the decision in. Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, such would probably have been the conclusion reached by á ¡majority of the federal courts, following in that respect what seems to jhave been the weight of authority before that case was decided. .

But 'as the question that we have to decide in the case at bar is one of gen- ¡ eral law, which does not involve any construction or

interpretation of ; the statutes of the state-of Wisconsin, we must determine it in accordance with-federal adjudications and the principles enunciated in the Ross Case,, as we understand and construe it.

That case has some- , times’been regarded as establishing no more than what has been termed the doctrine of “departmental control.” In other words, it has been contended, with great plausibility and vigor, that the case merely decides that a person is a vice principal only when he has control of an .'important department of the master’s service, and that within the mean- . ing of the rulé a conductor of a railway train has charge of a department, and is not a fellow servant of other employes of the master engaged in operating the same train. Howard v. Railway Co., 26 Fed. Rep. 837.

But wé think that it is hardly permissible to place such an arbitrary limitation upon the scope of that decision, in view of the reasoning on which the case rests, and the authorities cited in its support. Speaking for the majority of the court, Mr.

Justice Field uses the following language: “There is, in our judgment, a clear distinction to be made in their relation to their common principal between servants of a corporation exercising no supervision over others engaged with them in the same employment, and agents of the corporation clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. - A conductor, having the entire control and management of a railway train,.occupies a very different position from the brakeman, the porters, and other subordinates employed.

Jle is in fact and should bo treated as the personal representative of the corporation for whose negligence it is responsible to subordinate servants.” Tins we understand to bo an explicit statement of a general rule by which to determine in any given case whether a person occupies.-the relation of a vice principal or a fellow servant.

And the test applicable to the determination of that question is not whether the person has charge of an important department of the master’s service, but whether his duties are exclusively those of supervision, direction, and control over a work undertaken by the .master, and over subordinate employes engaged in such work whose duty it is to obey, and whether he lias been vested by the common master with such power of supervision and management.

The other view, that the question whether a person is a' vice principal is to be determined solely by the magnitude or importance of the work that may have been committed to his charge, is open to the objection that it ‘furnishes no practical or certain test by which to determine in a given case whether ail employe has been vested -with ■such departmental control, or has been “so lifted up in the grade and extent of his duties” as to constitute him the personal representative •of the master.

That this would frequently bo a difficult and.embarrassing question to decide, and that courts would differ widely in their views, if the doctrine of departmental control was adopted, is well illustrated by the case of Borgman v. Railway Co., 41 Fed. Rep. 667, 669.

We are of the opinion, therefore, that .the nature and.character. of the respective duties devolved upon and performed by persons in the same common employment should in each instance determine whether they ate or are not fellow servants, and that such relation should not be deemed to exist between two employes where •• the' function of one is to exercise supervision and control over some work undertaken by the master which requires supervision, and over subordinate servants engaged in that work, and where the other is not vested by the master with any such power of direction or management.

The views which, we have thus expressed concerning the proper

interpretation' of the Ross Case were substantial stated by this court in the-recent case of Woods v. Lindvall, 4 U. S. App. 49, and 48 Fed. Rep. 62. We believe that they are also in accord with the view generally entertained by other courts, and by the profession, concerning the scope and effect of that decision. Shear. & R. Reg. (4th Ed.) § 226. On the trial in the circuit court there was no substantial controversy as to the relative functions of Peterson and Holverson.

It was practically conceded that Holverson’s solo duty was to supervise the work of track repairing over some 18 or 20 miles of the defendant’s road, to hire the men necessary to do that work", and to direct the operations of the force so employed. He controlled the force engaged in that work as fully and effectually as any other agent or officer of the defendant company could have done.

" On the other hand, Peterson was an ordmary laborer, who had been employed by the foreman as a member of tha extra gang of - track repairers. . \ At the conclusion of the testimony the trial court charged the jury, with respect to the relation ■ existing between the two employes, in the following language: “Whether Holverson was a fellow servant of the plaintiff or not depends on the relation he sustained to the defendant company; and the court instructs you that if you And from the evidence that Holverson was a ‘foreman of an extra gang’ for the defendant company, and that as such foreman he had the charge and superintendence of putting in ties and lining and-keeping in repair three sections of the defendant’s road; that he hired the gang of hands, about thirteen in number, to do this work.for the company, and had the exclusive charge and direction and management of said gang of hands in all matters connected with their employment, and was invested with authority to hire and discharge the hands to do said work at his discretion; and that plaintiff was one of the gang of hands so hired by Holverson; and that, the plaintiff was subject to the authority of Holverson in all matters relating to his duties as a laborer,—then the plaintiff and Holverson were not fellow servants in the sense that will preclude the plaintiff from recovering from the railroad company damages for any injury he may have sustained through the negligence of Holverson, acting in the course of his employment as such foreman. ” In view of what has already been said, we are unable to hold that the trial court erred in giving the foregoing instruction.

We are equally unable to say that the court erred in refusing to direct the jury as a .matter of law that Holverson and Peterson were in fact fellow servants. As these are the only substantial errors assigned, the judgment of the circuit court must be and it is hereby affirmed.