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The case being thus left open, by the opinion and mandate of this court, and by the general rules of practice in equity, for further proceedings, with a right in the plaintiffs to file a replication, putting the cause at issue, the Circuit Court might, in its discretion, allow amendments of the pleadings for the purpose of more fully or clearly presenting the facts at issue between the parties. Marine Ins. Co. v. Hodgson, 6 Cranch, 206, 218; Neale v. Neales, 9 Wall. 1; Hardin v. Boyd, 113 U. S. 756.
The case is quite different, in this respect, from those in which the whole case, or all but a subsidiary question of accounting, had been brought to and decided by this court upon the appeal, as in the cases principally relied on by the petitioner. Stewart v. Salamon, 94 U. S. 434, and 97 U. S. 361; Gaines v. Rugg, 148 U. S. 228; Ex Parte Dubuque & Pacific Railroad, 1 Wall. 69; In re Washington & Georgetown Railroad, 140 U. S. 91.
It must be remembered, however, that no question, once considered and decided by this court, can be reëxamined at any subsequent stage of the same case. Clark v. Keith, 106 U. S. 464; Sibbald v. United States, and Texas & Pacific Railway v. Anderson, cited at the beginning of this opinion.
Writ of mandamus denied.
CENTRAL RAILROAD COMPANY v. KEEGAN.
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 878. Submitted December 8, 1894.- Decided December 23, 1895.
A force of five men, in the night service of a railroad company, was employed in uncoupling from the rear of trains cars which were to be sent elsewhere, and in attaching other cars in their places. The force was under the orders of O., who directed G. what cars to uncouple, and K. what cars
Statement of the Case.
to couple. As the train backed down, G. uncoupled a car as directed. K., in walking to the car which was to be attached to the train in its place, caught his foot in a switch and fell across the track. As the train was moving towards him he called out. The engine was stopped, but the rear car, having been uncoupled by G., continued moving on, and passed over him, inflicting severe injuries. K. sued the railroad company to recover damages for the injuries thus received. Held, that K. and O. were fellow-servants, and that the railroad company was not responsible for any negligence of O. in not placing himself at the brake of the uncoupled car.
THE action below was brought by Keegan to recover damages for personal injuries sustained while acting as brakeman in the employ of the railroad company. Judgment having been rendered upon the verdict of a jury, in favor of Keegan, the company sued out a writ of error from the Circuit Court of Appeals for the Second Circuit. Two circuit judges, sitting as the court, differed in opinion upon questions of law arising, and thereupon certified two questions to this court. The certificate sets forth the following statement of facts:
"Five men - O'Brien, Keegan, Lally, Gooley, and Ward — were, on the night of the accident, (October 7, 1889,) in the service of the Central Railroad of New Jersey, and employed in its yard at Jersey City. They comprised what was called the 'night float drill crew,' the duty of such crews being to take cars from the tracks on which they had been left by incoming trains and place them on the floats, by which they were transported across the North River to the city of New York. The drill crews, like others employed in the same yard, received their general instructions from Dent, the yardmaster. The men composing such crews were hired by Dent and discharged by him, and he had the general charge of the yard and yardmen, and assigned them to their duties.
"The course of business was as follows: Dent, the yardmaster, gave to O'Brien drill slips - that is, slips of paper containing the numbers of the cars and the particular tracks leading to the floats on which these cars were to be placed. These float tracks were five in number and were connected, by switches, with the other tracks in the yard. The execution of this order required frequent switching of cars from one
Statement of the Case.
set of tracks to another in order to sort out from arriving trains the particular car or cars to be placed on a particular float track. It also required the making up of trains of cars sometimes longer, sometimes shorter; their movement by the engine attached to them, forward or backward and at varying rates of speed; the braking, coupling, and uncoupling of the cars composing them. Ward was engineer. Lally had his post on some car near the engine in order to transmit to the engineer any signals received. He also helped the engineer with coal and water, and acted as brakeman. Keegan did the coupling; Gooley the uncoupling and acted as brakeman, while the turning of the switches was attended to by O'Brien. The direction of all these operations was with O'Brien, who is called in the evidence sometimes 'foreman driller,' sometimes 'conductor of the drill crew.' He was the one to direct what cars should be taken on by the engine, and when and where they should be moved to, when the movement should start, and where it should stop, and it was in obedience to his orders that one or another of the men employed in his crew went to one place or another and coupled or uncoupled particular cars. The general management of the operation was with him, and he had control over the persons employed therein.
"On the night of the accident Keegan, who had been relighting his lantern at the engine, which was then standing still, attached to several cars, walked to the rear end of the train. O'Brien and Gooley were standing there looking over the drill slip. There were some other cars standing on the same track, about 40 feet beyond the end of the cars to which the engine was attached. O'Brien told Gooley what cars were to be uncoupled. He then told Keegan to couple the train onto the cars beyond. Keegan took the coupling link of the rear car in his right hand, and, having signalled for the train to back slowly, walked towards the detached cars, with the rear end of the last car at his back. Before he reached them he caught his right foot in the guard rail of a switch, and at once called out to hold up the train. His call was heard and the engine stopped immediately. Gooley, however,
Argument for Defendant in Error.
had already, on O'Brien's order, drawn the pin and thus uncoupled the cars indicated, so that when the engine pulled up it did not stop their backward movement. Neither Gooley nor O'Brien were on the cars thus moving backwards, so there was no one to check their motion by applying the brakes, and as a consequence the rear wheel passed over Keegan's leg, producing the injuries complained of.
"There was evidence tending to show that under circumstances such as these O'Brien or some one else should have been on the rear car of those moving backward, and the negligence complained of was his ordering defendant in error to couple cars which he had just ordered to be uncoupled from a backwardly moving train to stationary cars beyond them without himself being on the moving cars or seeing that either Gooley or Lally were there to exercise control over their movement.
"The jury, by their verdict, found that O'Brien was negligent."
The questions of law arising from these facts, upon which the court desired instruction for the proper decision of the writ of error, were certified as follows: 1, whether the defendant in error and O'Brien were or were not fellow-servants; and, 2, whether from negligence of O'Brien in failing to place himself or some one else at the brake of the backwardly moving cars, the plaintiff in error is responsible.
Mr. Robert W. De Forest and Mr. George Holmes for plaintiff in error.
Mr. A. G. Vanderpoel for defendant in error.
Chicago, Milwaukee & St. Paul Railway v. Ross, 112 U. S. 337, stands as the law to-day. In that case the conductor of the freight train was present. In Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368, there was no conductor present. Northern Pacific Railroad v. Hambly, 154 U. S. 349, may be regarded as the judicial construction of the relation of the Baugh case to the Ross case.
Opinion of the Court.
The test of liability of the master for the act of a servant is given in the Ross case, in the following words: "The conductor has entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what station it shall stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders." These words are cited with approval in the Baugh case. In the Hambly case it is said, of the Ross case: "The case was decided not to be one of fellow service upon the ground that the conductor was in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. The court drew a distinction between servants of a corporation exercising no supervision over others engaged with them in the same employment and agents of a corporation clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. In that particular case the court found that the conductor had entire control and management of the train to which he was assigned, directed at what time it should start, at what speed it should run, at what stations it should stop, and for what length of time, and everything essential to its successful movements, and that all persons employed upon it were subject to his orders. The word 'orders' referred to the orders of the conductor.
Under such circumstances he was held not to be a fellowservant with the fireman, brakeman, and engineer, citing certain cases from Kentucky and Ohio."
O'Brien was a conductor, and the proximate cause of plaintiff's injury was his, O'Brien's, negligent order to Gooley to pull the pin, and it is respectfully submitted that the giving that order was a negligent masterial act in law.
MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.
We held in Baltimore & Ohio Railroad Company v. Baugh,