
    NORTHERN PAC. R. CO. v. HOGAN.
    (Circuit Court of Appeals, Eighth Circuit.
    July 16, 1894.)
    No. 357.
    1. Master’s- Liability to Servant—Fellow Servants—Brakeman and Conductor.
    A brakeman and a conductor are fellow servants, within Comp. Laws N. D. 1887, § 3753, exempting an employer from liability to an employe for negligence of another person employed by him in the same general business.
    
      2. Same—State Statute—Following Construction by State Court.
    The state having power to determine tlie liability of an employer, to an employe for injury sustained in his service, the construction put on its statute on the subject by its court of last resort will be followed by federal courts.
    In Error to the Circuit Court of tlie United States for the District of Minnesota.
    Action by Cornelius Hogan against the Northern Pacific Railroad Company for injuries received in its employment as a brakeman. Judgment for plaintiff. Defendant brings error.
    Reversed.
    J. H. Mitchell, Jr., for plaintiff in error.
    F. D. Larrabee, for defendant in error.
    Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.
   THAYER, District Judge'.

The facts disclosed by the record in this case, which was a suit for personal injuries, are substantially as follows: Cornelius Hogan, the defendant in error, was a brakeman, who had been in the service of the Northern Pacific Railroad Company, the plaintiff in error, for about two years prior to May, 1892. At that time he was serving the company in the capacity of head brakeman on a regular freight train running between Jamestown and Cargo, in the state of North Dakota. This train usually arrived in Jamestown from the west at about 7 o'clock in the evening, and left shortly thereafter for Fargo; but on the occasion of ilie accident, to wit, on the evening of May 10, 1892, it was an hour or two late. It frequently happened that some car loads of live stock had to be taken up and placed in the train at Jamestown, and such was the case on the evening of May 10, 1892. -It appears from the testimony that, after the train in question arrived at Jamestown from the west, the train crew, including Hogan, who were to take charge of the same from that point east to Fargo, were called, and proceeded with the discharge of their several duties in the usual and ordinary manner. Hogan and the conductor of the train took the numbers and seals of all the cars composing the train, after which they went to the yardmasters office, which was some distance east of the forward or eastern end of the train. After waiting there a few moments for orders and instructions,' they again went to the forward end of the train, with a view of attaching the road engine thereto, which was then standing on an adjoining side track. The road engine was let out onto the track on which the freight train was standing, and was backed down to within a few feet of the forward car, preparatory to being coupled therein when the train was made up and ready to start. At about the same time, another engine, binned the “helper,” was let out onto tlie main track, by Hogan, and was sent back to the rear of the standing freight train for the purpose of being attached thereto, so as to help push the train out of the station on an ascending-grade. During these several occurrences, it seems that a party of men were engaged at the rear or west end of the train in the act of attacking three' car loads of live stock thereto. A switch engine, was being used for that purpose. It is an undisputed fact that owing to the length of the train, consisting, as it did, of about 30 cars, and owing to the darkness of the night, neither Hogan nor the conductor could.see what progress this party of men had made with their work, nor in what part of the train they were placing or attempting to place the three cars of live stock; but they did know that these cars were to be placed in the train, and that a party of men were engaged in that service at the rear end of the train with a switch engine. Hogan testified that the conductor finally gave an order to couple the road engine to the outgoing train, saying at the same time, “Those three cars of stock have been put on the rear end of the train.” The conductor testified that he said: “We will couple up now, so as to get ready to go. I think they are putting the stock- on the rear end, on the hind end, of the train.” In the act of making the coupling, pursuant to the order of the conductor, Hogan lost the thumb and forefinger of one of his hands, by their being crushed between the bumpers of the car and the engine. There was evidence tending to show that the standing train of freight cars was pushed forward about six or eight inches by the movement of one or the other of the engines at the rear end -of the train, either the switch engine or the “helper,” and that this unexpected movement of the train occasioned the injury of which the plaintiff! complains. In the circuit court a judgment was rendered against the railroad company for $4,500, to reverse which it has brought the case to this court. The railroad company relies upon the following propositions to obtain a reversal of the judgment: First, that by virtue of a statute of the state of North Dakota, where the accident occurred, the railway company is not liable to Hogan for the negligent act of the conductor of the freight train, if, indeed, he was guilty of any negligence; and, second, that, upon the undisputed evidence in the case, the accident was due to one of the ordinary risks of the employment, and that the railway company was in no wise at fault.

The statute to which reference is thus made is section 3753 of the Compiled Laws of North Dakota for the year 1887, and is as follows:

“An employer is not bound to indemnify bis employee for losses suffered by tbe latter in consequence of tbe ordinary risks of tbe business in wbicb be is employed, nor in consequence of tbe negligence of another person employed by the same employer in the same general business, unless be bas neglected to use ordinary care in tbe selection of tbe culpable employee.”

It admits of no doubt, we think, that the interpretation placed upon that statute by the supreme court of North Dakota would absolve the railway company from liability, on the state of facts disclosed by the present record. In the case of Elliott v. Railroad Co., 41 N. W. 758, the supreme court of .the then territory of Dakota held that a section foreman and a train conductor were coemployés In the same general business, within the meaning of the above statute; and in a late case, decided by the supreme court of North Dakota since its admission into the Union, it was held in an' elaborate opinion that a foreman of a gang of laborers, who had authority to hire and discharge the men composing the gang, and to control and direct them while at work, was also a coemploy6 of the various members of the gang, within the purview of such statute. Vide Ell v. Railroad Co., 48 N. W. 222. The court decided in substance, that whether two persons in the service of the samé master are coemployés, and subject to the rule of liability declared by (lie aforesaid statute, depends not. upon the relative rank of the two employes, nor upon the fact that one controls' and directs the other, but upon the character of the work in the doing of which the negligent act is committed. The “superior servant doctrine,’5' as it has sometimes been termed, was expressly disapproved in that ease, as well as the decision of the supreme court of the United States in the case of Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184. It was ruled, in effect, that, under the provisions of the Dakota statute, a master is not liable to one employe for the negligent act of another, unless the latter is at the time engaged in the performance of some duty that is personal to the master. There seems to be no valid ground, therefore, for dissenting from the view which is advocated by counsel for the plaintiff in error, that the statute of Xorth Dakota, as construed by the highest court of that state, exempts the railroad company from liability for the injuries complained of, and that in the courts of that state the plaintiff below could not have recovered upon the state of facts proven at the trial.

It must also he regarded as a well-established doctrine that the states have the right to regulate.the relations existing between employers and employés within their respective borders, and to determine hv legislative enactment when and under what circumstances an employer shall he held liable to an employé for an injury sustained by the latter while in his service. Ho far as we are aware, laws of tills description have always been treated as obligatory upon the federal courts to the same extent.and with like limitations as other statutory enactments, even where they modify tesóme extent the pre-existing rules of the common law, and we can conceive of no sufficient reason why they should not have the same effect in the federal courts, as rules of decision, which is accorded to other state statu tes. It was said on this subject in the case of Railroad Co. v. Baugh, 149 U. S. 368, 378, 13 Sup. Ct. 914, that “there-is no question as to the power of the-states to legislate and change the rules of the common law in this respect as in others.” And in other cases, as well, it has been taken for granted that the states have ample power to regulate the relations existing between employers and employes as they may deem expedient. Hough v. Railway Co., 100 U. S. 213, 226; Railway Co. v. Prentice, 147 U. S. 101,. 106, 33 Sup. Ct. 261; Railroad Co. v. Hambly, 14 Sup. Ct. 983. Indeed, it would lead to intolerable results, which will he readily apprehended, if the federal courts should either deny the authority of such statutes, or refuse to enforce- them according- to the interpretation placed thereon by the courts of the state, particularly by its court of last resort. We ought to say in this connection that, it has not been expressly claimed by counsel for the defendant in error that the statute of North Dakota now in question is not binding upon the federal courts, but such seems to us to be the necessary-result of the argument actually made. It is said that the statute of Dakota is merely declaratory of the common law; that in construing the statute the state court merely gave expression to its views of the common law, and that the federal courts, being courts of co-ordinate jurisdiction, are not bound by the decision of the state court on questions of that character. The argument is ingenious, but, as we think, it is fallacious. The state statute to which reference has been made supersedes the common law in the state where it was enacted, touching the subject to which it relates; and, while it is true that the state court had occasion to refer to the principles of the common law, yet it must be borne in mind that such reference was made solely for the purpose of ascertaining the intent of the lawmaker as evidenced by the statute in question. It is the statute, however, and not the common law, which is now in force in the state of North Dakota; and it is the statute, as construed by the highest court of that state, which must determine the rights of the parties and control the decision in the case at bar. Any other view would render the statute inoperative and nugatory.

In what has thus far b^en said we have not been unmindful of the observations made with reference the Dakota statute in Railroad Co. v. Herbert, 116 U. S. 642, 653, 6 Sup. Ct. 590. In that case the court was dealing with the liability of an employer for an injury sustained by an employé in consequence of defective machinery and appliances. The court held that the statute did not exempt the employer in siich case, because whoever was appointed to provide suitable machinery and appliances was discharging a personal duty of the master, and, while, so acting, was the representative of the master, and not a coemployé, within the purview of the Dakota statute. The decision is accordingly in harmony with the views of the state court in Ell v. Railroad Co., supra.

In conclusion, it is important to add that in a very recent case, heretofore cited (Railroad Co. v. Hambly), which originated in Dakota, the supreme court of the United States gave effect to the same statute which is now under consideration, holding that, by virtue of its provisions, a person employed in keeping the track of a railroad in repair was a coemployé of the engineer and conductor of a passenger train on the same road, through whose negligence he had sustained injuries. At the time the last-mentioned suit was instituted, the Dakotas had not been admitted into the Union, and the decision of the territorial supreme court construing the statute in question was said to be merely persuasive authority. It was conceded, however, that the interpretation given to the statute by the highest court of the state after its admission into the Union would, as a matter of course, be adopted and applied by the federal courts, pursuant to the requirements of section 721, Rev. St. U. S.

Our conclusion is, therefore, that the first contention of the plaintiff in error, heretofore stated, should have been sustained by the circuit court, and that the declaration of law embodying that con-ten tion should have been given, and that the jury should have been directed to return a verdict in favor of the defendant. For the error committed in refusing the instruction and refusing to direct a verdict in favor of the company, the judgment is reversed, and the cause is remanded, with directions to award a new trial.  