LOCHBAUM v. OREGON RY. & NAV. CO., 104 F. 852

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The motion to dismiss the writ of error upon the ground that it was not sued out within six months after the entry of the judgment is denied upon the authority of Insurance Co. v. Phinney, 178 U. S. 327, 20 Sup. Ct. 906, 44 L. Ed. 1088. It is contended that the foreman, Peter Grant, stood in the attitude of vice principal to the plaintiff in error, and that he was negligent in not first ordering the men to scrape the banks before beginning work in the ditches, and in not stationing a man to warn the gang against falling rocks. It appeared from the testimony that Peter Grant was

section foreman, and had authority to hire and discharge men for the work in which the plaintiff in error was engaged, and that he reported to one E. Brown, who was one of six division road masters on the'line of the railroad; that Brown, as such division road master, had authority to determine what work was to be done on his division, and from time to time inspected it and examined it; and that he in turn was required to report to the general road master in charge of the entire road, and the general road master reported to the general superintendent.

Upon this statement of the facts we think there can be no question that under the ruling in Mining Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40, 42 L. Ed. 390, Peter Grant was a fellow servant of the plaintiff in error.

In that case the court held, in a case where the business of a mining corporation was in the control of a general manager, and was divided into three departments, of which the mining department was one, and each department had a superintendent under the general manager, and in the mining department were several gangs of workmen, that the foreman of one of these gangs, whether he had or had not authority to engage and discharge the men under him, was a fellow servant with the men, and the corporation was not liable to one of the men for injuries caused by the foreman’s negligence in managing a machine or in giving orders to the men.

It is impossible to distinguish that case from the case at bar, and it becomes unnecessary to discuss the decisions of the state courts which are cited by the plaintiff in error. The judgment of the circuit court is affirmed.