
    THOMAS MILLS vs. THE ORANGE, ALEXANDRIA AND MANASSAS RAILROAD COMPANY.
    At Law. —
    No. 9637.
    I. The defendant is a railroad corporation, chartered by the State of Virginia, and uses the track of a Washington railroad company by agreement. The plaintiff, while flagging defendant’s trains over the road of the Washington company, must for the time be considered the servant of the defendant, and is not entitled to recover for any injury occasioned by tbe negligence of another servant, without showing that defendant was guilty of negligence in selecting the servant by whose fault the accident happened.
    II. What constitutes negligence -usually is a mixed question of law and fact; and sometimes negligence is of a character so gross on the part of a plaintiff, that a judge may well instruct a jury that he is not entitled to recover. ■
    III. A plaintiff was guilty of gross negligence who voluntarily placed himself upon the track before an approaching railroad engine, by which he was injured; and the judge trying the cause may instruct the jury to return a verdict for the defendant on that ground.
    STATEMENT OR THE CASE.
    This case was before tbe court at a previous term, and it was then determiued that tbe defendant was liable to tbe plaintiff for a personal injury produced by tbe carelessness of its agents in running a train of ears tbrougb tbe city of Washington on tbe track of another company. 1 MacAr., 285. A new trial was granted; and tbe case comes up again upon a bill of exceptions, which raises tbe questions whether the defendant is to be considered in the employ of tbe defendant, and whether the latter would be liable for injuries to the plaintiff occasioned by the negligence of another in the same occupation. In order to understand what is expressed in the opinion, it becomes necessary to state a portion of the testimony. On the trial, the plaintiff was called and testified as follows:
    “ I reside in Washington; have lived here ten years. In 1871 and 1872 was engaged as flag-man by the Washington and Alexandria Railroad Company. I was employed to carry the flag before the engines running from Seventh-street depot to the Baltimore and Ohio depot, in this city. My work was to walk on the track directly in front of the engine, and swing a red flag to let people know that the train was coming. The train was not allowed to go faster than I walked; I carried this flag before all the trains that passed over the road; I was employed by the Washington and Alexandria Road to carry the flag, and was told by Mr. Stevens to carry the flag before the defendant’s trains of cars as I carried it before the Washington and Alexandria trains of cars. The defendant’s passenger-trains passed over this road twice a day. I had carried the flag fordefendant’strainssomenineor ten months beforel was hurt. I was hurt on the 15th day of March, 1872, while I was carrying the flag from the Baltimore and Ohio-depot to the Seventh-street depot, going west. The train was running faster than it had a right to run, and I stepped on the track some five or six yards in front of the engine, and when I had done so before they always slowed the train. They were about to cross the Seventh-street road — and when running too fast I always went on the track. In this instance they did not slow the train, but ran on to me. The engineer could see me on the track. He ran over me and crushed my ankle. It was a year before I was able to walk at all; for three or four months I was confined to my bed. I cannot now work as I used to. I cannot stand on this foot, and when I do it pains me nights. I went on the track to stop the train from passing Seventh street at the speed they were running; they were running faster than they had a right to run. The train that ran on to me carries the through passengers from Lynchburgh, Ya., to the Baltimore and Ohio depot in this city. All the persons on this train, except the conductor, were in the employ of the defendant.”
    He was cross-examined, and said:
    “At the time I was hurt, the conductor of the Washington and Alexandria Road had charge of the train. He took charge of the train at Alexandria, and ran it through to the Baltimore and Ohio depot in this city and back to Alexandria. I was not trying to get on the cow-catcher at the time I was hurt; I never rode on the cow-catcher; when I went on the track, I went on some five or six yards ahead of the engine, as it was near Seventh street; the train was running faster than it had a right to run.”
    
      The defendant called as a witness O. A. Stevens, who testified as follows :
    “I was the superintendent of the Washington and Georgetown Railroad at the time of this accident. The plaintiff was employed by me to carry a red flag before the engines and trains passing over our road as they ran from the Seventh-street depot to the Baltimore and Ohio depot in this, city.. He had been employed in this business a year or more before-this accident happened.”
    The witness here produced a letter, which was read in evidence, as follows:
    “Office Washington and GeorgetownR. R. Co., “Corner Ninth St. and Maryland Ave.,
    “ Washington, D. C., September 30,1869.
    “Dear Sir: In reply to your letter of the 20th inst., saying arrangements were being made to run by your road, on and. after Sunday, October 3, have to say that you are at liberty to do so upon the following terms and conditions, viz: Your company to allow this road forty (40) cents-for all passengers transported over our lines north or south, having through tickets .and in cars of your company, with right to use dead-trains north or south for local purposes on our part 5 also a pro rata division of all moneys received by the ‘through line’ for extra baggage, estimating our road at twenty (20) miles in length. It is also expected that your company will furnish engines and trains, engine-men, firemen, and brakemen, and taking on said trains all express and mail cars bound north and south free of charge to this road. All such trains will be under the control of a conductor in our employ, and be subject to the rules and regulations governing the working operations of our road. You will instruct your engine-men and train-men accordingly. This arrangement is subject to alteration whenever deemed expedient on the part of those in charge of either road.
    “Very respectfully,
    “O. A. STEVENS,
    “ Gen’l Supt.
    “H, W. Vandergrift, Esq.,
    “ Chief Engineer and Gen’l Supt,
    
    
      “Orange, Alex, and M. B. BP
    
    
      The duty of plaintiff was to flag the trains, to keep ahead of them, so that in crossing the streets he could give notice to people crossing that the train was approaching. The conductor of our road was on this train at the time of the accident, and had charge of it from the Baltimore and Ohio depot to Alexandria. The conductor was to take up the tickets and collect the fare.
    A.t the close of the testimony the defendant, by his counsel, asked the court to charge the jury as follows:
    “If the jury find that, at the time of the accident, the plaintiff was engaged in flagging the train of the defendant over the road of the Washington and Alexandria Railroad Company, the plaintiff for the time being must be considered in the employ of the defendant, and is not entitled to recover without showing that the defendant was guilty of negligence in the selection of their engineer or some other officer by whose negligence said accident happened.”
    The court so instructed the jury, and directed them to find a verdict for the defendant, whereupon the jury found a verdict for the defendant, as directed by the court; to which instruction and direction the plaintiff, by his counsel, then and there excepted.
    
      William B. Hawes for plaintiff:
    1st. The defendant, by his counsel, asks the court to charge the jury that “the plaintiff, for the time being, must be considered in the employ of the defendant,” &c. This offer was sustained by the court, and in our judgment was error. It is true it was accompanied with the further offer, “if the jury find,” &c. On this point there was no dispute. It is admitted that the plaintiff was flagging the defendant’s train at the time of the accident. But this by no means establishes the fact that he (plaintiff) was in the employ of the defendant; the jury should have been permitted to consider this question, and been allowed to determine who was the plaintiff’s master. The theory of counsel, that the plaintiff must be considered in the employ of defendant, is quite too large a “theory” to be sustained by the evidence in this case.
    By reference in the letter of Stevens, on page 3 of exceptions, it will be seen that the defendant contracted for the use and occupation of the Alexandria and Georgetown Road, and was to pay therefor a certain amount on each passenger carried over the road, together with certain other perquisites for its use. This letter furnishes the entire contract upon which the defendant passed its trains over this road. It was to “be subject to the rules and regulations of the Alexandria Road,” but in no sense were the operators of the Alexandria and Georgetown Road to become the émployés of the defendant. Such an idea is not hinted at by the contract, but, on the contrary, the letter in question expressly directs the defendant to instruct its émployés to conform to the “ rules- and regulations” of the Alexandria and Georgetown Road. From this language it is impossible to draw the inference that the track and émployés of this latter company, for the time being, passed into the hands and control of the defendant. The defendant was to carry the flag before defendant’s trains as he carried it before the Alexandria and Georgetown trains. He carried it as the employé of the Alexandria Company, and was paid by this company, and worked under its “rules and regulations.” Thedefendant was not the master of the plaintiff and had no control over him, nor had any of the émployés of the defendant any authority to direct the plaintiff in the ex-cution of the work or labor he was to perform. If the jury should take this view of the case, there is but one remaining ; that of the damages the plaintiff is entitled to recover. Such a finding by the jury would render unnecessary the consideration of the several propositions which we now proceed to discuss.
    2d. The second point, which I understood the court to say he desired should be submitted to the court in general term, is one of no ordinary interest, involving injuries to servants by the neglect of fellow-servants. How far, and to what extent, a servant may sustain an action against his employer for injuries inflicted by a fellow-servant, in the same line of employment with himself, is a question upon which the best judicial talent of the American bench has differed in opinion. I admit that there are numerous decisions, both in this country and in England, holding to the doctrine that the master cannot be held responsible for negligent injuries inflicted by one servant upon another, where both are acting in thetsame grade of employment. But the time has come when this antiquated view of the rights of parties should be reversed, and the decisions of our own country at least made uniform upon a question of such vital interest to rights of labor in all departments of industry.
    The cases sustaining this doctrine are founded upon the idea that there is an implied agreement on the part of the servant to take the risk of negligence of fellow-servants. The argument upon which this theory of an implied agreement is based is not sound; and here is my reason for this conclusion %
    
    It is a settled principle of law that “implied responsibility grows out of something not directly declared, but arising from what is admitted or expressed in the contract between parties.” Bouvier’s Law Dictionary, vol. 1, 688. Apply this principle to the case before the court, and I ask by what stretch of judicial imagination can it be u implied” that the plaintiff in this suit agreed to take the risk of the negligence of a fellow-servant in his contract to flag the trains of the Alexandria and Georgetown Road? Not one word in the contract further than his agreement to carry the flag; and from this it is claimed the implication is to be drawn that he assumed the negligent action of fellow-servants.
    General Superintendent Stevens says, “The duty of the plaintiff was to flag the trains, keep ahead of them, so that in crossing the streets he could give notice to people crossing that the train was approaching.” Nothing more, in our judgment, is needed to set forever at rest, so far as this case is concerned, the doctrine of implied responsibility; no risk is assumed and none can be inferred from paintiff’s agreement. If this view of the point at issue be correct, this case must be returned to the circuit for a new trial, without further argument as to who are fellow-servants. See Redf. on Negligence, page 125, sec. 101.
    3d. But we propose, in connection with this subject, to discuss the question as to the extent of the master’s liabilities for injuries to “fellow-servants.” The judicial bench of this country have by no means gone to the extent of English authority on this point. It is true that the judicial opinions of the English courts have, to a large extent, been followed by the courts of several States. But this subject is now undergoing a re-examination, and has recently been greatly shaken by arguments based upon a more enlightened view of the rights and liabilities of servants. The following cases will show how far and to what extent the courts of the several States have departed from the above rule : Hilliard on Torts, vol. 2, page 474, &c., cases cited; Chamberlain vs. Milwaukee, 11 Wis., 238; Sawyer vs. Rutland &c., 1 Williams, 370, Eng., 6 Md., 205; Abraham vs. Reynolds, 5 Hurl, and Nor., 143, Eng.; Russell vs. Hudson R. Co,, 5 Duer, 39 N. Y.; Sher. & Redf. on Negligence, sec. 101, pp. 125,126, and note; Young vs. New York Central Railroad, 30 Barb., 229; Donaldson vs. Mississippi Railroad, 18 Iowa, 280, 26 Ind., 364; Cleveland, Columbus & Cincinnati Railroad vs. Keary, 3 Ohio, 201, 262; Stevens vs. Little Miami Railroad, 20 Ohio, 415, 435; 5 Ohio St., 541, 563; 5 Ohio St., 201, 209, 211, 212. These two last cases repudiate the law as laid down in Priestly vs. Fowler.
    
    
      Dixon vs. Romkin, 1 Am. R. R. Cases, 569 ; Fitzpatrick vs. New Albany, &c., 7 Ind., 436, 5 Ind., 340; Young vs. New York, &c., 30 Barb., 239; Cooper vs. Mullins, 30 Ga., 146; Louisville and Nashville Railroad vs. Collins, 2 Duvall, 114; 4 Bush, Ky., 507; 47 Miss., 404.
    4th. The following cases declare the law where separate companies use the same track by agreement: Sher. & Redf. on Negligence, 126, 127; Sawyer vs. Rutland and Burlington, Railroad Company, &c., 27 Vt., 370; Smith vs. New York and Harlem Company, 19 N. Y., 127; Snow vs. Housatonic Railroad Company, 8 Allen, 441; Graham vs. Northeastern Railroad Company, 18 C. B., N. S., 229 Eng.; Fletcher vs. Peto, Foster’s Rep., Crown Law, Eng., 368; Catawissa Railroad Company vs. Armstrong, 49 Penn. St., 186; Webb vs. Portland Railroad Company, 57 Me., 117; U. S. Digest, vol. 1, new series.
    
      R. T. Merrick and Walter S. Cox for defendant:
    The plaintiff, a flag-man employed by the Washington, Alexandria and Georgetown Railroad Company, complains that, while flagging a train over their road, belonging to the defendant, he was injured through the carelessness of the engineer of the train in the defendant’s employ.
    The trains of the Virginia company were run over this road in pursuance of an agreement set out in the record, by which the trains were to be under the control of a conductor in the employ of the Washington company, and subject to the rules and regulations governing the working operations of their road. It was under such control at the time of the alleged injury. The only question in the case now open for ' discussion is whether the flag-man and engineer were not, pro hac vice, to be considered in the employ of the same superior. It will be maintained for the defense that either the train and all its officers were, for the time being, to be «considered in the service of the Washington company, or the officers of the latter are to be considered, for the time being, in the service of the Virginia company. In either case they were engaged at the same time in the same immediate occupation, and the superior would not be liable to one servant for the consequences of another’s negligence. The train is to be considered as a unit in regard to its management and not as under two separate governments with divided responsibilities. See Rauch vs. Lloyd & Hill, 31 Penn. St., 358 ; Peters vs. Ryland, 20 Penn. St., 197. It is deemed unnecessary to discuss the general question of an employer’s liability to one servant for injuries occasioned by another, as the rule is supposed to be settled in regard to servants engaged together in the same occupation.
   Mr. Justice Olin

delivered the opinion of the court:

In looking carefully through the papers in this case since the argument, I see no error in this ruling of the law by the justice presiding at the trial of this cause prejudicial to the plaintiff. If the judge committed any error in the conduct of the trial, it was in failing to instruct the jury to render a verdict for the defendant upon the ground that the plaintiff was guilty of gross negligence in voluntarily placing himself upon the track before an approaching railroad engine, by which he was run over and injured. What constitutes negligence usually is a mixed question of law and fact. But sometimes negligence is of a character so gross, that a judge may well instruct a jury that the plaintiff is not entitled to recover, and I think the undisputed fact of this case would render it eminently proper to give such direction.  