THE AMERICAN AND ENGLISH RAILROAD CASES NEW SERIES. VOL. VII. PEIRCE υ. VAN DUSEN. (Circuit Court of Appeals, Sixth Circuit, Feb. 2, 1897.) Liability of Receivers for Injuries to Employees.*-A state statute forbidding any railroad or railway corporation or company owning and operating or operating a railroad in whole or in part in the state from adopting any rule or entering into any agreement with its employees whereby it shall be held harmless for injuries to such employees, forbidding the use of defective machinery, and declaring such corporations liable, in certain cases, for injuries received by its employees through the negligence of a fellow servant, is applicable to a receiver operating a railroad under the orders of a federal court. State Statutes-Jurisdiction of Federal Courts.-Such legislation is not liable to the objection that it encroaches upon federal authority, nor upon the jurisdiction or power of the federal court, as it merely prescribes a rule of action to be observed by all within the state, and applies to corporations not wholly within the state as well as domestic corporations. *Receiver-Fellow Servants-Statutes.-As to whether statutes sustaining the common-law liability of railroads for injuries incurred by their servants through the negligence of fellow servants apply to railroads operated by a receiver, see Robinson v. Huydekoper, 5 Am. & Eng. R. Cas., N. S., 216, and note at page 218. In McMahon v. Henning, 1 McQuary (U. S.) 516, 3 Fed. Rep. 353, the question whether receiver was a railroad company within the meaning of Kansas Laws of 1879, ch. 84, § 29, was discussed, but not decided. Peirce v. Van Dusen. (N. S.) State Statutes Regulating Railroads-Validity.-A state statute applying to all railroad corporations operating railroads within the state, and to all of a given class of railroad employees is general in its nature, and operates uniformly throughout the state, and is, therefore, not obnoxious to a provision of the state constitution requiring all laws of a general nature to have a uniform operation throughout the state. Injuries to Employees-Fellow Servants-Negligence.—Under the provisions of such statute that every person in the employ of a railway company "having power or authority to direct or control any other employee of such company, is not the fellow servant, but the superior of such other employee," the fact that a brakeman in the employ of a railway company was injured through the negligence of a conductor of such company in the performance by such conductor of work pertaining to such conductor and other employees in the same work, and not through the negligence of such conductor in the performance of any duty imposed by law on the master personally does not prevent recovery for the injuries. Same-Res Gestae.-In such action it was not error to admit the declarations of the conductor, who was engaged with the plaintiff in performing the work in which such plaintiff was injured, made while the work was yet unfinished, on the spot where the injury occurred, and almost simultaneously with the injury, and describing how it was caused. IN ERROR to the Circuit Court of the United States for the Western Division of the Northern District of Ohio. Clarence Brown, for plaintiff in error. Orville S. Brumback, for defendant in error. Before HARLAN, Circuit Justice, and TAFT and LURTON, Circuit Judges. HARLAN, Circuit Justice. This action was brought by Edward Van Dusen against R. B. F. Peirce, as the receiver of the Toledo, St. Louis & Kansas City Railroad Company, a corporation organized under the laws of this state. The order appointing Peirce as receiver was made by the court below in the case of Continental Trust Co. of New York v. Toledo, St. L & K. C. R. Co., 72 Fed. 92. It directed the receiver to operate the railroad, and do all things necessary to carry on the business of the company. He was so engaged on the 26th day of February, 1895, when the plaintiff, a yard brakeman, in the employ of the receiver, was so Case Stated. R. Cas. Peirce v. Van Dusen. seriously and permanently injured while in the discharge of his duties-being himself without fault-that he lost entirely the use of his right hand. These injuries, it is alleged, were caused solely through the carelessness and negligence of one Bartley, a conductor employed by the receiver, and under whose control and direction the plaintiff was placed at the time of his being injured. The defendant denied the allegations imputing negligence to him, and denied that the plaintiff was without fault. A verdict was returned in favor of the plaintiff for $5,500 in damages. A motion for a new trial having been made and overruled, judgment was entered upon the verdict. The principal question before us is whether the statute of Ohio passed April 2, 1890 (Laws Ohio 1890, p. 149), entitled "An act for the protection and relief of railroad employees; forbidding certain rules, regulations, contracts and agreements, and declaring them unlawful; declaring it unlawful to use cars or locomotives which are defective, or defective machinery or attachments thereto belonging, and declaring such corporation liable, in certain cases, for injuries received by its servants and employees on account of the carelessness or negligence of a fellow-servant or employee," is applicable to cases against the receiver of a railroad corporation, especially one acting under the orders of a federal court. The first section of the act provides that: "It shall be unlawful for any railroad or railway corporation or company owning and operating, or operating, or that may hereafter own or operate a railroad in whole or in part in this state, to adopt or promulgate any rule or regulation for the government of its servants or employees, or make or enter into any contract or agreement with any person in or about to engage in its service, in which, or by the terms of which, such employee in any manner, directly or indirectly, promises or agrees to hold such corporation or Peirce v. Van Dusen. (N. S.) company harmless, on account of any injury he may receive by reason of any accident to, breakage, defect or insufficiency in the cars or machinery and attachments thereto belonging, upon any cars so owned and operated, or being run and operated by such corporation or company, being defective, and any such rule, regulation, contract or agreement shall be of no effect. It shall be unlawful for any corporation to compel or require directly or indirectly an employee to join any company association whatsoever, or to withhold any part of an employee's wages or his salary for the payment of dues or assessments in any society or organization whatsoever, or demand or require either as a condition precedent to securing employment or being employed, and said railroad or railway company shall not discharge any employee because he refuses or neglects to become a member of any society or organization. And if any employee is discharged he may, at any time within ten days after receiving a notice of his discharge, demand the reason of said discharge, and said railway or railroad company shall thereupon furnish said reason to said discharged employee in writing. And no railroad company, insurance society or association, or other person shall demand, accept, require or enter into any contract, agreement or stipulation with any person about to enter, or in the employ of any railroad company whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive in case he asserts the same, any other right whatsoever, and all such stipulation and agreements shall be void, and every corporation, association or person violating or aiding or abetting in the violation of this section shall for each offense forfeit and pay to the person wronged or deprived of his rights hereunder the sum of not less than fifty dollars ($50) nor more than five hundred dollars ($500) to be recovered in a civil action.” By the second section it is made— R. Cas. Peirce v. Van Dusen. "Unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective. If the employee of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or in the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained, and when the fact of such defect shall be made to appear at the trial of any action in the courts of this state, brought by such employee, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation." The third section, which is the one whose scope and meaning is involved in this action, provides that: "In all actions against the railroad company for personal injury to, or death resulting from personal injury of, any person, while in the employ of such company, arising from the negligence of such company or any of its officers or employees, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employee of such company, is not the fellow-servant, but superior of such other employee, also that every person in the employ of such company having charge or control of employees in any separate branch or department, shall be held to be the superior and not fellowservant of employees in any other branch or department who have no power to direct or control in the branch or department in which they are employed." At the trial below it was contended on behalf of the plaintiff that the conductor and switchmen or yard. brakemen, even when engaged together, at the same time and place, in operating the same train of cars, |