
    The Cleveland, Lorain & Wheeling Railway Co. v. Shanower.
    
      Engineer and brakeman on same train — In same department and fellow servants — Section 3365-22, Revised Statutes — Superior officer and fellow servant defined — Accidental parting of train — Conductor still in control, when.
    
    1. An engineer and a brakeman, the latter not being under the actual direction and control of the former, being upon the same train of cars and engaged in the common purpose and employment of operating the same train of cars, are in the same branch or department, and not in separate branches or departments, within the meaning of section 3365-22, Revised Statutes (87 O. L., 149); and they are fellow servants.
    2. The conductor of such train being in control of the same and the other employes thereon, in the absence of rules or proof of a custom or express authority to the contrary, is not deposed from such control by the accidental parting of the train en route, nor is the engineer thereby made the superior in direction and control of a brakeman who happens to be with him on a section of such divided train.
    (No. 8655
    Decided April 26, 1904.)
    Error to the Circuit Court of Tuscarawas county.
    Plaintiff by his petition; after certain formal allegations, alleged that on the twelfth day of December, 1899, he was directed by the defendant, plaintiff in error here, to act as brakeman on one of its freight trains, which train consisted of about thirty-two' cars, a locomotive engine, and caboose; that on said date, while the train was in motion and running northward on said railroad, a short distance north of Flushing, the train of cars parted about twenty-two cars from the locomotive engine, leaving about ten cars and the caboose following the engine and twenty-two cars; that the engineer, with full knowledge that the train had parted, and that the said ten cars and caboose were following, carelessly and negligently permitted the said ten cars and caboose to overtake and collide with the twenty-two cars and the locomotive engine, wrecking the said cars, and thereby injuring the plaintiff to such an extent that his left leg had to be, and was, amputated; that the plaintiff was in the exercise of ordinary care and without fault or negligence on his part; and that the engineer was employed by the defendant and actually had power and authority, as such employe, to direct and control the fireman employed by the defendant and working upon said locomotive engine attached to and hauling said train; and that the plaintiff, as such employe, had no authority to direct and control any employe or person in the service of the defendant.
    This petition was demurred to, for the reason that it does not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant. The demurrer was overruled, and, after answer and reply, trial was had in the court of common pleas; and at the close of the plaintiff’s testimony, as well as at the close of all the testimony, the defendant requested the court to instruct the jury to return a verdict in favor of the defendant, which was refused; and the court charged the jury, among other things, as follows: “If you find by a preponderance of the evidence that the engineman actually had power or authority to direct or control the fireman, and that the plaintiff, a brakeman, had no power or authority to direct or control any employe in the branch or department in which he was employed, then I charge you that the engineman and the plaintiff were not fellow servants.”
    
      The court of common pleas overruled the motion for a new trial, and, on petition in error in the circuit court, the judgment was affirmed. Defendant below prosecutes error to reverse both of the judgments below.
    
      Mr. J. M. Lessick and Messrs. Healea £ Healea, for plaintiff in error,
    cited and commented upon the following authorities:
    Article 1, secs. 1 and 2, and art. 2, sec. 26, Constitution; 14th amendment to U. S. Constitution; Froelich v. Railway Co., 13 O. D., 107; Maltby v. Railway Co., 13 O. D., 280; Kehle, Admr. v. Railroad Co., ---- (by Judge Wing, U. S. Circuit Court, Northern District of Ohio; Western Div.); Froelich v. Railway Co., 24 O. C. C., 359; Pierce v. Van Dusen, 9 O. F. D., 419; Tullis v. Railroad Co., 175 U. S., 348; Book 44 L. C. P. Co., 192; Harmon v. State, 66 Ohio St., 249; State v. Gardner, 58 Ohio St., 599; Railroad Co. v. Margrat, 51 Ohio St., 130; Hill, Admx. v. Railway Co., 12 Circ. Dec., 241; 22 C. C. R., 291; 12 Am. & Eng. Ency. Law (2 ed.), 971; Whaalan v. Railway Co., 8 Ohio St., 249; Mooney v. Railroad Co., ---- (U. S. Circuit Court, Northern District of Ohio, Eastern Division); Gerwe v. Fireworks Co., 5 Circ. Dec., 616; 12 C. C. R., 420; Crawford v. Railway Co., 13-23 O. C. C., 208; Railway Co. v. Andrews, Admr., 58 Ohio St., 426; Railroad Co. v. Marsh, 63 Ohio St., 236; sec. 3365-22, Rev. Stat.
    
      Mr. Robert T. Scott and Messrs. Bowers £ Buchanan, for defendant in error,
    cited and commented upon the following authorities:
    Article 1, secs. 1 and 2, and art. 2, sec. 26, Constitution; 14th amendment to U. S, Constitution; 
      Slaughter House Cases, 83 U. S., 36; Bradwell v. Illinois, 83 U. S., 130; Tullis v. Railroad Co., 175 U. S., 348; Railroad Co. v. Montgomery, 152 Ind., 1; Pierce v. Van Dusen, 9 O. F. D., 419; Railway Co. v. Margrat, 51 Ohio St., 130; Railway Co. v. Irwin, Admr., 56 Ohio St., 743; act of April 1, 1890, sec. 3; Railroad Co. v. Murphy, Admr., 50 Ohio St., 137; Dick v. Railroad Co., 38 Ohio St., 389; sec. 3365-22, Rev. Stat.
   Davis, J.

This case is not controlled by the' decision in Railway Co. v. Margrat, 51 Ohio St., 130. The facts of that case were held to justify the application of the statutory rule provided in the last clause of section 3365-22, Revised Statutes. Inasmuch as the engineer and the injured brakeman were engaged in distinctly separate enterprises, that is, the operation of separate trains, it was held that the engineer was a person “having charge or control of employes in any separate branch or department” and therefore the superior and not the fellow servant of the brakeman on another train who had “no power to direct or control in the branch' or department” in which he was employed. There may be reasons for doubting the soundness of that interpretation of the words “separate branch or department,” but that question does not necessarily arise here.

The statute is in derogation of the common law, and therefore it cannot be enlarged beyond its terms. It declares that it is intended to add to the liability already recognized by law. It does this in two particulars : First, it makes obligatory upon the courts of this state the superior servant rule, which was first announced in this court in Little Miami Railroad Co. v. Stevens, 20 Ohio, 415, and which was afterwards approved and followed in a number of other cases in this and other states, although it has been repudiated in many others. Second, it creates by force of the statute a relation of superior and subordinate where none exists in fact, and brings it within the operation of the rule mentioned. The contention in this case is to bring the engineer and brakeman within the second particular; for it does not seem to be seriously contended that the brakeman was actually under the direction or control of the engineer. There is in evidence a rule of the railway company which contains this sentence: “"When there is no conductor, or he is disabled, the engineman will have charge of the train, and will be governed by the rules prescribed for conductors.” But there was a conductor on this train, and he was not disabled. Shall we assume that the mere breaking of a link or a coupling pin dethroned him, and delegated from the master to the engineer authority to control the brakeman? The rules which are in evidence disclose no such provision, and we discover no foundation in fact or in reason, for making such an assumption. Upon cogent reasoning this court held in Railway Co. v. Ranney, 37 Ohio St., 665, that the relation of superior and subordinate, as between an engineer and a brakeman, is not created by a rule which requires the engineer to give certain signals, and which also requires brakemen to work the brakes in response to the signals. And much less could such a relation be implied from, or created by, the brakeman signalling to the engineer the information that the train had parted, and by the answering signal of the engineer.

It is conceded that the fireman is subordinate to the engineer; but in.order that this ease may be controlled by the last clause of section 3365-22, Revised ■Statutes, it is necessary that the engineer and the brakeman should be in different branches or departments of service. Whatever may be the exact definition of the words “branch or department,” as used in the statute, it seems clear to us that ■ the engineer and the brakeman were associated in a common employment and in the same branch or department, viz.: that of operating the same train of cars. It does not appear that as between them there was any relation of superior and subordinate, either in fact or in law. Therefore, if there was negligence on the part of the engineer which produced the injury complained of, it was the negligence of a fellow servant. It follows that the plaintiff has neither alleged nor proven a cause of action against the defendant.

It is insisted by counsel that this conclusion involves an injustice to somebody. For example, if we may suppose that the same act of negligence by the engineer, which caused the injury to the plaintiff, also caused an injury to another brakeman on another train; yet the latter may recover under Railway Co. v. Margrat, while the former may not. This is true, and assuming that Railway Co. v. Margrat correctly construes the statute, the result is attributable to the statute itself. While attempting to modify the common law, it has not entirely abrogated it.

The court of common pleas erred in refusing to direct a verdict for the defendant below, and also erred in the charge. The judgment of the circuit court affirming that of the court of common pleas, and the judgment of the court of common pleas are both

Reversed and judgment rendered for plaintiff in error.

Shatjck, Price, Crew and Summers, JJ., concur.  