all of these persons were fellow servants of the plaintiff, for whose negligence the defendant is not responsible, and you should find the defendant not guilty." The exception to this refusal properly brings before us the legal question presented upon the facts of the record. The refusal to give this instruction necessarily involved the assumption that the court gave an instruction which did not sustain this view of the case. Without passing upon the question whether the exception is properly saved by the court's instruction upon the point covered by the instruction asked by the plaintiff in error, and refused, I will set the ruling out, that it may be seen in connection with the above refused instruction: "If you find from the evidence that the plaintiff was employed by the defendant, through the instrumentality of its section foreman, to labor in the capacity of a section hand upon the defendant's railroad, and that the plaintiff, in compliance with the command of the said section foreman, entered upon and into a hand car of the defendant on the morning of the 5th of June, 1889, for the purpose of going to his daily labor, and that while the plaintiff was so going in and upon the said hand car a train of cars and locomotive engine propelled by steam power, operated by the agents and servants of the defendant, was run upon and over said hand car, through the negligence or recklessness of the agents and servants of the defendant in charge of said train of cars and locomotive engine, and the plaintiff was thereby injured, and that the plaintiff at the time of receiving the injury was exercising due care and caution to protect himself from injury, the jury should find the issues for the plaintiff, and assess his damages at such sum as will compensate him for the injuries received, not exceeding the sum of ten thousand dollars, the amount of damages claimed in the declaration."

The facts proven upon the trial were substantially as follows: The plaintiff below, Martin, at the time of the accident, was in the employ of the Atchison, Topeka & Santa Fe Railroad Company as a section man, and had been for three months. It was his duty, with its foreman and others, to aid in repairing the railway. Upon the day of the accident he and his foreman and one other laborer left Albuquerque on the hand car, in the morning, to go to their place of work, north of Albuquerque. That he took his position upon the hand car in such a manner as to have his face looking south, but was ordered by his foreman to turn and face north. The third man on the car made some remark, that a train was coming out of Albuquerque. The foreman said he would look out for trains. The foreman was in charge of a section gang, and hired the men; directed when they ought to be discharged, and where they should work upon the section; but he also worked in the same way as did the other men, and had nothing to do with paying the

men. There was upon the line of the defendant's railroad between Socorro and Wallace, at the time of the accident, a work train which was engaged in aiding in repairing the railway. It was under the management and control of a conductor, and at the time of the accident there was upon the train a roadmaster, who had control of the line of road where the accident occurred. The work train, shortly after the hand car left the station, also left Albuquerque for the north, backing the train, and overtook the hand car, running into it, knocking it from the track, and seriously injuring the plaintiff, Martin. Where the accident occurred was in a level country, and the track could be seen plainly for a long distance.

It may be conceded that the accident was caused by the joint negligence of the conductor and engineer upon the work train and the foreman upon the hand car. While it would seem that there was no excuse or reason for Martin to entirely rely upon the foreman to look out for trains, and thus to excuse himself from ordinary precaution in affairs of so much possible hazard, yet, as the question of contributory negligence was before the jury, and they found there was none upon the part of Martin, there is nothing before us but the admitted negligence of the company's servants, and its relation to the parties to this record. It is absolutely necessary, for a proper consideration of the legal questions presented by the record, to thoroughly eliminate all possible collateral questions. Corporations of every character and kind must necessarily act through and by means of agents, yet the corporation is not bound to respond for every negligent act of those agents. The corporation owes to its employes certain positive and personal duties, such as seeing that they have safe and proper tools and other appliances to work with; that their fellow servants are carefully selected, and competent to perform the work assigned them. And the company is bound to use ordinary care and diligence to see that these requisites are met. But there is no question before us upon these phases of a master's liability to the servant. As far as this record shows, the company has faithfully performed its duties to this plaintiff in these requisites. There is but the single question before us, was the plaintiff below and the other servants of the company, whose negligence caused the injury, fellow servants? If they were, then the rul ing of the lower court was erroneous, and must be reversed. If they were not, then the verdict was proper, and the judgment must stand. It is now the recognized law of the land, both in the state and in the federal courts, that the master is not liable to a servant for the negligence of a fellow servant unless the negligence was caused by the personal wrong of the master, or his contributory negligence, in the given case. Farwell v. Railroad Co., 4 Metc. (Mass.) 49;

Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322; Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184; Hough v. Railway Co., 100 U. S. 213. The reason given for this exemption is thus stated by Chief Justice Shaw in Farwell v. Railroad Co., Metc. (Mass.) 49: "The general rule, resulting from considerations as well of justice as of policy, is that he who engages in the employment of another, for the performance of specified duties and services for coinpensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal contemplation the compensation is adjusted accordingly; and we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen anu provided for in the rate of compensation as any other." It is true that, both upon the grounds of logic and fact, the reason, as here given, has been vigorously attacked; the attack varying in intensity and completeness in proportion to the feeling of antipathy which the writer bore corporations, because of their greediness or heartlessness. But whether logically sound, or true in fact, the reason of Chief Justice Shaw is still the basis upon which the rule is generally founded. The difficulty has not grown out of the unsoundness of the reason for the rule, but out of the inability to apply the rule itself to the infinite variety of facts which are constantly presenting themselves. The ques

tion is, "Who, within the sense of the rule, or upon grounds of public policy, are to be deemed fellow servants in the same common adventure or undertaking?" Hough v. Railway Co., 100 U. S. 213. While many courts have essayed to give certain criteria by which to solve the question here presented, hardly any of acknowledged authority have endeavored to lay down a hard and fast formula by which all cases may be tested. The United States supreme court has refused to make any such attempt. See the cases above cited. That court has been exceedingly conservative in its enunciation of general rules. The same remarks apply to the majority of state courts. The result was inevitable, therefore, that the cases should be in irreconcilable conflict. It has been held that the following persons were fellow servants: Foreman of a bridge gang, and servants of operating train, (Elliot v. Railroad Co., 5 Dak. 523, 41 N. W. Rep. 758;) a section foreman and conductor, (Fagundes v. Railroad Co., 79 Cal. 97, 21 Pac. Rep. 437;) a laborer employed to remove snow from the track, and a conductor, (Baughman v. Superior Court, 72 Cal. 573, 14 Pac. Rep. 207;) a brakeman, and con

ductor of different trains, (Van Wickle v. Railroad Co., 32 Fed. Rep. 278;) a track repairer, and an engineer, (McMaster v. Railroad Co., [Miss.] 4 South. Rep. 59;) a section man, and an engineer or brakeman, (Howard v. Railway Co., 26 Fed. Rep. 837;) a switchman of one train, and the engineer of another train, (Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322.) The number of cases might be greatly extended, but it is unnecessary. It will be noticed that the relation existing in each case is, in principle, the same as the relation existing in the case before us, between the plaintiff, Martin, and the engineer or conductor of the work train. In the Randall Case, supra, the court says that for the purposes of that case it was not necessary "to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh the conflicting views which have prevailed in the courts of the several states; because persons standing in such a relation to one another as did this plaintiff and engineman of the other train are fellow servants, according to the very great preponderance of judicial authority in this country, as well as the uniform course of decision in the house of lords and the English and Irish courts." And Judge Gray, who delivered the opinion, cited a long line of authorities sustaining the view taken by the court. Continuing, he said, referring to the servants in the case before him: "They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. The separate services have an immediate common object, the moving of trains. Neither works under the orders or control of the other. Each, by entering into his character of services, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence against the corporation, their common master." It seems to me clear that the principle of this case fairly and squarely covers the facts in the case before us, upon that branch of it relating to the negligence of the conductor or engineer upon the work train, and, that being the utterance of the supreme court of the United States, we are bound by it. Whatever may be the exact status of the Ross Case, 112 U. S. 377, 5 Sup. Ct. Rep. 184, and its authority, which we will consider later, it has no reference to the state of facts that existed between the plaintiff and the conductor and engineer of the work train. They were fellow servants, and, being such, the common master is not responsible in damages to the plaintiff for the negligence of such fellow servants. That negligence was part of the risk he assumed.

It was argued strenuously by counsel for defendant in error that as the work train and

station of the negligent servant-"is a limitation, a very important limitation, of that rule. It finds no warrant in the cases which first enunciated that rule. It rests on no subsequent legislation, and we are firm in the conviction that the mere superiority in the rank of the negligent servant-his right to control the servant injured, and to employ and to discharge him-calls for no modification of the fellow-servant rule. The bedrock of that doctrine is that every employe assumes the risk of his coemployes' negligence, as one of the ordinary risks of his work." The court then enters into a clear and exhaustive consideration of the reasons why the doctrine, as here laid down, is correct in principle, and cites numerous cases to show that a great preponderance of authority is in favor of the doctrine as held by that court, and then concludes as follows: "We believe that the fellow-servant rule should hedge about all masters, without discrimination; that its wise and just barrier against liability should not be broken down by a fiction; that those whose business, from its very nature, necessitates gradations of service, should not be deprived of its protection on account of a distinction which in no manner affects the considerations which gave it birth, and have led to its almost universal adoption. We see nothing to justify the limitation doctrine, except the increased safety of employes in a dangerous business; and this applies, if at all, equally to cases where the two servants are of the same grade." We have quoted thus fully from this case because the facts are quite similar to those in the case before us, and, further, because the learned judge has presented the reasons for the general rule in the most convincing manner possible. The rule thus ably set forth is the one adopted by the great majority of states, and having the indorsement generally of the federal courts and the United States supreme court until, at least, the announcement of Railroad Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322. The doctrine as above laid down, however, had been rejected by the courts of Ohio, Michigan, Kentucky, and a few others; and in those jurisdictions the liability of the master had been gauged by the departmental test or the grade test, with a constantly growing tendency to increase the number and character of the departments or grades, and thus in fact annihilating the fellow-servant doctrine, or making of it a barren abstraction. When the United States supreme court, in 1884, announced the doctrine of the Ross Case, the legal profession and all masters were startled,-not at the decision itself, for while, as to the facts in that case, even, it was a departure from the apparent direction of the doctrine of the case of Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, yet, as applied to its facts, it was not devoid of justice; but the reasons and

the citations of authorities both tended in the direction of the rule which was surely emasculating. the fellow-servant doctrine, and basing the master's liability solely upon negligence of any servant. The facts of the Ross Case were these: A freight train was going south upon the railroad, under the control of a conductor. A gravel train was coming north. At a station a few miles from the point where the two trains ought to pass, the conductor of the freight train received a telegram instructing him where to allow the gravel train to pass. He neglected to give the engineer the order, by reason of which there was a collision, and the engineer was injured. He sued the company for damages. The lower court gave the jury the following instruction: "It is very clear, I think, that if the company sees fit to place one of its employes under the control and direction of another, that then the two are not fellow servants engaged in the same common employment, within the meaning of the rule of law of which I am speaking." It must be conceded, if the court had fully indorsed that instruction, that in every case where one servant is under any control and direction of another the rule of fellow servant would not apply. The case before us would be one under the spirit of the Ross Case. But the court very carefully limited its ruling to the alleged facts in that case. Justice Field says: "We agree with them [the courts of Ohio and Kentucky] in holding-and the present case requires no further decisionthat the conductor of a railroad train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and therefore that, for injuries resulting from his negligent acts, the company is responsible." The justice, in applying this rule, says the language of the construction may be open to verbal criticism. And it certainly is, for it takes no great acumen to see that the learned judge imports into the instruction a variety of facts not covered by the words of the instruction, "control and direction;" facts, too, that must have been assumed, for it is a matter of common notoriety that no conductor has the authority or performs the acts set out in the quotation italicised. In the very case itself, the negligence is predicated upon the failure of the conductor to deliver an order-not his orderfrom another and higher servant, without which he could not move the train a foot. The decision in this case was not agreed to by four of the justices, upon the ground that they thought the conductor and engineer fellow servants. However, the case stood as an authority for the principle that, in cases where one servant has any control or direction over another, the fellow-servant doctrine does not apply; and if that is the meaning of the case, and it is now an au

thority for that view of this legal doctrine, then it is decisive of the case before us, as we are bound by the decisions of the supreme court of the United States.

But the plaintiff in error cites the case of Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. Rep. 914, as conclusive of the proposition before us, and that in its favor. This latter case is the latest utterance of the supreme court upon the fellow-servant doctrine, and its authority, whatever it is, is decisive of the present case. The defendant in error insists that it does not change the doctrine announced in the Ross Case, while the plaintiff in error insists that, if it does not change the doctrine there put forward, it interprets the holding to be in accordance with the view of the law which it contends for, and which it insists is the law of the federal jurisdiction. What, then, does the Baugh Case hold, and what is its relation to the Ross Case? Referring to the last question first, we remark that a previous decision of a court may be considered afterwards in four separate phases: (1) It may be overruled and repudiated; (2) it may be made the basis of the second or other ruling, without more; (3) it may be distinguished; and (4) it may be interpreted in accordance with the later and fuller discussion of the rule of law under consideration. The Baugh Case plainly shows that neither the first nor second phase was pursued in reference to the Ross Case. The discussion by Justice Brewer in the Baugh Case shows that he was not attempting to discriminate the cases, for in principle they were too near alike, but that he was following the fourth method, and endeavoring to place its somewhat disturbing holding upon such a practical basis as the Baugh Case was about to lay down. It would seem, therefore, that the doctrine as now held by the supreme court is to found solely in the Baugh Case, and that it is unnecessary to further consider the Ross Case; for, if that case is authority, it is so only because it harmonizes with the Baugh Case. Differing from the usual course, the Baugh Case is not an additional authority depending upon the Ross Case, but the latter takes its efficacy because it has been interpreted by the law of the Baugh decision. Does the Baugh Case sustain that view of the fellowservant doctrine held by the majority of courts, which base the fellow-servant relation upon the character of the negligent act, rather than upon that of the grade or department of work? We think it does. It must first be noticed that this case decides that the question involved is one of general law, and not of local law. This is a very significant fact, for the reason that the case was first tried in the federal court of Ohio, and was decided in accordance with the decisions of that state. If, now, the question had been determined to have been one of local law, then those decisions would have been binding upon the supreme court, and there

could have been no escape, excepting upon

the theory that the question was one of general law. Justice Field, who wrote the decision in the Ross Case, dissented in this, (the Baugh Case,) and insisted that the question was peculiarly one of local law. In the Ross Case we find that Justice Field quoted to sustain his position upon the main question the cases of Railroad Co. v. Stevens, 20 Ohio, 415; Railroad Co. v. Keary, 3 Ohio St. 201; and Railroad Co. v. Collins, 2 Duv. 114,-(Kentucky cases,)-authorities, all which sustain the doctrine which takes the minority view of the fellow-servant doctrine. It is therefore significant of the direction in which the Baugh Case was to be decided that the court at once cleared itself of the impediment of the Ohio cases. The facts in the Baugh Case were these: The plaintiff, Baugh, was employed by the railroad company as fireman on one of its locomotives. The locomotive was manned by one Hite, as engineer, and the engine was known as a "helper;" that is, it aided other engines in hauling trains up steep grades, when, through with its help, it returned to its starting point alone, under direction of the train dispatcher, or following some scheduled train. On the day of the accident, the "helper," without special orders, and not following any scheduled train, started back, and collided with a regular train, and Baugh was injured. Baugh had worked for the company for six months, knew the "helper" had to keep out of the way of trains, and was familiar with the method of flagging back. The court instructed the jury as follows: "If the injury results from negligence or carelessness on the part of one so placed in authority over the employe of the company who is injured as to direct and control that employe. then the company is liable." This instruction is very similar to the one in the Ross Case, but is not so broad as the one given by the lower court in this case. The court, by Justice Brewer, say, in formulating the results of the Ross Case: "The court, therefore, did not hold that it was universally true that when one servant has control over another they cease to be fellow servants, within the rule of the master's exemption from liability, but did hold that an instruction couched in such general language was not erroneous, when applied to the case of a conductor having exclusive control of a train, in relation to other employes of the company, acting under him, on the same train. The conductor was, in the language of the opinion, 'clothed with the control and management of a distinct department.'