
    The Ann Arbor Railroad Company v. Addison.
    
      Competent for railroad companies — In contracts facilitating movement of trains — To incur liabilities for injuries to employes— Contracts can not be extended beyond terms, when.
    
    While it is competent for railroad companies, in contracts to facilitate the movements of trains in the conditions which obtain at crowded terminals, to incur liabilities for injuries to the employes of other companies resulting from the negligence of their own employes, such contracts may not, by construction, be extended to movements of trains beyond the scope of their terms.
    (No. 11817
    Decided May 31, 1911.)
    Error to the Circuit Court of Lucas county.
    Addison brought suit in the court of common pleas against the Toledo Railway & Terminal Company, the Detroit & Toledo Shore Line Railroad Company and the Ann Arbor Railroad Company, to recover on account of personal injuries sustained by him while acting as baggageman on a train of the Pere Marquette Company. At the conclusion of the evidence counsel for' Addison voluntarily dismissed the action as to the Terminal Company, and the court directed a verdict in favor of the other two companies. A judgment in favor of the Ann Arbor Company on the verdict sc directed was reversed by the circuit court, and this is a proceeding in error by the Ann Arbor Company for the reversal of that judgment of the circuit court.
    The Pere Marquette Company is the successor of. the Monroe Company. The location of the tracks and the trackage relations of the several
    
      companies, as well as the place where Addison sustained his injury, will be made clear by attention to the accompanying diagram and explanation .
    
      
    
    The Terminal Company, as its name, indicates, serves to facilitate the entrance of the trains of other roads into, and their passage around, the city of Toledo. The site is where the tracks of the other roads named, as they approach Toledo from a northerly direction reach the track of the Terminal Company. By the side of the Ann Arbor track near the crossing of the Terminal tracks is a tower, from which a towerman controls an interlocking system, by which trains on the Pere Marquette may be shunted to the track of the Terminal Company, or to the track of the Ann Arbor Company. The train which Addison was working as a baggageman, when he received his injury, approached from the north, and was by the towerman admitted to the Ann Arbor track, and then shunted by the “Y” on to the track of the Terminal Company. As the train proceeded southwardly on the Terminal track, after it had crossed the Ottawa river, having passed entirely beyond the track of the Ann Arbor Company and at point “A,” it collided with a derelict caboose standing on the Terminal track and in the collision Addison was injured. Shortly before the approach of this train a freight train of the Shore Line Company passed northwardly on the Terminal track over the Ottawa river, and thence westerly over the Ann Arbor track, and while so passing it parted, leaving its caboose on the Terminal track at point “A.” The towerman failed — negligently it may be assumed — to observe the absence of the rear lights of the Shore Line train, which would have indicated a complete train, and thus thinking that the Terminal track was clear passed the Pere Marquette train upon it.
    Only the liability of the Ann Arbor Company is here in question, and the allegations of the petition respecting it are, in substance, that the Ann Arbor Company maintained and operated an interlocking system, including the tower occupied by the towerman who operated the system; that it was the duty of that company, and of the towerman to give signals to all the trains of the Pere Marquette Company passing over the tracks of the Ann Arbor Company and the Terminal Company at the point, and not to permit any train of the Pere Marquetté to enter upon the tracks of the Terminal Company over or from the tracks of the Ann Arbor Company while the tracks of the Terminal Company were occupied. That on November 4th, plaintiff being engaged in his duties as baggageman on the passenger train of the Pere Marquette road, which had left the tracks of the Pere Marquette Company and passed on to the tracks of the Ann Arbor Company and on to the tracks of the Terminal Company, the tracks of the Terminal Company ahead of the train were involved and obscured by darkness; that the towerman passed the train on to the Terminal Company’s track, although a short time before a Toledo Shore Line train passing over the Terminal track had parted, leaving the rear end of the train standing on the track of the Terminal Company, whence the collision occurred; that the absence of lights on the rear end of that part of the train which passed the tower was not noticed by the towerman; that all the train had not passed and it was, therefore, the duty of the towerman to refuse the Pere Marquette train entrance upon the Terminal track.
    The Ann Arbor Company in its answer admits that with its knowledge and consent the Pere Marquette Company was operating trains over the designated portion of its road, and that there was an interlocking system established and maintained at the intersection of its track with that of the Terminal Company, and that the towerman was employed there. It substantially denies all the other allegations of the petition.
    Upon the trial a contract between the Monroe Company and the Ann Arbor Company was introduced in evidence. It provided for the passage of Pere Marquette trains over the track of the Ann Arbor Company to the local Terminal station in the city of Toledo. It defined the terms upon which the Ann Arbor track for that purpose should be occupied by trains of the Pere Marquette Company and it defined, so far as it was deemed necessary, the relation of those two companies in such . operation of the trains of the Pere Marquette Company over the Ann Arbor Company’s tracks to the city of Toledo. It contained no stipulation whatever to the operation of. cars or trains over the track of the Terminal Company. By the entire evidence it was shown that the train upon which Addison was injured was not operating under this contract over the track of the Ann Arbor Company to the Cherry street station, but was passing over the track of the Terminal Company to its station in Toledo, and this was under an arrangement between the Terminal Company and the Pere Marquette Company, which, the record does not disclose. There is no evidence in the record showing any duty or obligation of the Ann Arbor Company with respect to the passage of the Pere Marquette Company’s trains over the track of the Terminal Company.
    
      Upon this state of the evidence, the plaintiff having voluntarily dismissed the Terminal Company from the action, the common pleas judge directed a verdict in favor of the Ann Arbor Company.
    
      Messrs. Smith & Beckwith, for plaintiff in error.
    If the proximate cause of the accident was the act of the towerman in passing the Pere Marquette train over on to the Terminal Company track, we submit that in so doing he was not acting in any sense for the Ann Arbor Company. The Ann Arbor Company had no right to the use of the Terminal track or the connecting “Y.” It had no right or authority to permit the Pere Marquette train to pass on or over the “Y” connection on to the Terminal track.
    The Ann Arbor Company owed no duty to the Pere Marquette Company under its contract to protect its trains against accident on the Terminal track, nor to see to it that such track was clear for the Pere Marquette train to operate on or over after leaving the Ann Arbor track. Whatever precautions were needed for this purpose must be provided by the two companies in interest, viz., the Terminal Company and the Pere Marquette Company.
    But if the court shall be of opinion that the towerman was in the matter complained of acting as the servant of the Ann Arbor Company so as to make that company responsible for his acts, still we say that company is not liable. For in such case under the contract between the Ann Arbor Company and the Pere Marquette Company the plaintiff and the towerman are surely fellow-servants.
    It will not be questioned that a towerman, as such, is ordinarily a fellow-servant of trainmen. He is only an “exalted switchman.” Such was the holding of this court in the case of Railway Co. v. Burtscher, 74 Ohio St., 523.
    Functionally, therefore, the towerman and trainman are fellow-servants.
    But does the fact that the towerman is also an employe of the Ann Arbor Company, paid by it for his services,, coupled with the right (assumed, be it always remembered, solely for the sake of this argument) on the part of the Pere Marquette Company under its contract to use the services of the towerman in getting its trains off the Ann Arbor track, a service in which the Pere Marquette was certainly chiefly if not solely interested, have the effect of making this towerman in the eye of the law as between these two companies the sole and exclusive employe of the Ann Arbor Company and not in any sense the servant of the Pere Marquette Company?
    We submit that such effect would hardly have been thought of except for the purpose of making the Ann Arbor Company liable in this action.
    The case is similar to those in which an employer lends his servant to another for some particular purposes, in which case while he remains the general servant of his employer he must be dealt with in respect of the special employment as the servant of the man to whom he is lent. In such case, if the original employer parts temporarily but completely with his power of control he would not be liable for injuries resulting from the negligence of the servant. Byrne v. Railroad Co., 61 Fed. Rep., 607; Powell v. Construction Co., 88 Tenn., 692.
    If the Ann Arbor Company was the employer of the towerman in reference to the matter in hand, surely the Pere Marquette Company was also such employer. Manufacturing Co. v. Rahn, 132 U. S., 518.
    In Bosworth v. Rogers, 82 Fed. Rep., 975, it is said that the power to discharge is a “sure test” of the relation of master and servant.
    In this contract the Pere Marquette Company stipulated for and got the right to use the services of a joint employe in doing its work, precisely as if for the time being he was its separate employe'. And it had the' same right to discharge him. It thus' retained control over the manner in which each such employe did his work.
    The towerman being a servant of the Pere Marquette Company is a fellow-servant of the plaintiff.
    
      Mr. Harry Levis on, for defendant in. error.
    Plaintiff in error contends, as a second proposition of law, that the plaintiff below and towerman are fellow-servants. Of course this contention is absolutely inconsistent with and contradictory of the contention that the towerman'was acting as a Terminal employe. On this proposition, we confidently submit that the numerous authorities hold practically unanimously that they were not fellow-servants.
    Counsel argues that the towerman was the employe or servant of the Pere Marquette Company because the contract says. that the words “joint employes” whenever the same are used in this contract shall be construed to mean all laborers employed in the maintenance or care of the tracks or machinery used jointly. We súbmit that this contract does not make but simply calls him a joint employe and that the Ann Arbor and Pere Marquette companies can not fix an ethploye’s status or rights in law simply by agreeing between themselves to give him a certain name or by agreeing that he shall be placed in a certain class to which a certain term shall be applied. The status of a laborer as an employe or servant is fixed by the nature of his duties - and relations. The contract might just as well have provided that a Pere Marquette bookkeeper in Detroit should be construed to be a fellow-servant of an Ann Arbor bookkeeper in Toledo.
    The power of control is the test of liability and of the relation of master and servant. Brady v. Railway Co., 114 Fed. Rep., 100; Gravatt v. State, 25 Ohio St., 162.
    As to the rule of respondeat superior, see Clark v. Fry, 8 Ohio St., 358; Cotter v. Lindgren, 106 Cal., 602; 26 Cyc., 966; Grace & Hyde Co. v. Probst, 208 Ill., 147; Manufacturing Co. v. Rahn, 132 U. S., 518.
    It is true that the Pere Marquette Company did arrange a train schedule by conference, and ran its trains accordingly, and did make use of the services of the towerman furnished by the' Ann Arbor Company, and did have the right to ask the Ann Arbor Company to discharge him, but by none of these things did .it “control the manner of doing the work,” nor did these things give it supervision or direction over him, as all of the decided cases show.
    Servants of two different masters cannot be. made fellow-servants merely by agreement of the masters, especially where they are not aware of any such agreement. There is nothing in the entire record to show that the plaintiff had any knowledge of. the terms of the Ann Arbor-Pere Marquette agreement. Railway Co. v. Kelley, 4 Colo. App., 325; Railroad Co. v. State, 58 Md., 373; Chamberlain v. Pierson, 87 Fed. Rep., 420; Railroad Co. v. Martin, 113 Tenn., 266; Robertson v. Railroad Co., 160 Mass., 191; 26 Cyc., 1284, 1285, 1286; 12 Am. & Eng. Ency. Law (2 ed.), 993.
    A case exactly in point is Smith v. Railroad Co., 19 N. Y., 127; Bosworth v. Rogers, 82 Fed. Rep.; 975; Jennings v. Railway Co., 29 App. D. C., 219.
    The general rule in New York is stated in Hurl v. Railroad Co., 73 N. Y. Supp., 1042; Railroad Co. v. Vandenberg, 164 Ind., 470; Strader v. Railroad Co., 86 Hun, 613; Sawyer v. Railroad Co., 27 Vt., 370; Railway Co. v. Easton, 2 Tex. Civ. App., 378; Iron Co. v. Lea, 144 Ala., 169; Morgan v. Smith, 159 Mass., 570; Railroad Co. v. Conroy, 63 Miss., 563.
    One of the leading cases is Zeigler v. Railroad Co., 52 Conn., 543; the facts are peculiar and the relation of fellow-servants and of master and servant are clearly discussed. Erickson v. Railway Co., 171 Mo., 649; Baker v. Railway Co., 149 Fed. Rep., 882; Buchanan v. Railway Co., 75 Ia., 393; Railroad Co. v. Martin, 113 Tenn., 266; Railroad Co. v. Craft, 69 Fed. Rep., 124; Phillips v. Railway Co., 64 Wis., 475; Lockhart v. Railway Co., 40 Fed. Rep., 631; Railroad Co. v. Stoermer, 51 Fed. Rep., 518; Kastl v. Railroad Co., 114 Mich., 53; Swainson v. Railway Co., 3 Exch. Div., L. R., 341.
    The Ann Arbor Company controlled him; the entire contract gives this company control over all the employes who are classified under the term “joint emploj'-es.” All the provisions of the contract clearly show that there is no joint control.
    The Pere Marquette Company had the right to request the Ann Arbor Company to dismiss the towerman; but this did not control him. If the Ann Arbor Company complied with the request,' his services were dispensed with; but it was-first necessary for the Ann Arbor Company to comply with the request, and the dismissal or discharge came from the latter company. He .could be discharged only by his master or employer. Suppose the Ann Arbor Company refused or failed, for some reason, to comply with the request; could the Pere Marquette Company then dismiss, discharge or control him? It might have some other remedy or recourse, but it could not dismiss or control. Railway Co. v. Kelley, 4 Colo. App., 325.
    To constitute the relation of fellow-servants, the servants must be under the same master and the employment must be one having a common object. Hardy v. Railroad Co., 57 N. J. L., 505; Railroad Co. v. Hardy, 59 N. J. L., 35; Good v. Johnson, 8 L. R. A., N. S., 897; McKinney on Fellow-Servants, Sec. 18; Sprague v. Smith, 29 Vt., 421; Sul
      
      livan v. Railroad Co., 44 Hun, 304, 20 N. E. Rep., 569; Quinn v. Construction Co., 46 Fed. Rep., 506; McGatrick v. Wason, 4 Ohio St., 566; Railroad Co. v. Armstrong, 49 Pa. St., 186; Jones v. Railway Co., 125 Mo., 666.
   Shauck, J.

This case presents no material question of law with respect to - which counsel differ, or with respect to which it is, believed any lawyers would differ. The differences between counsel and between the courts below seem to concern only the proper statement of the case. Why the original plaintiff voluntarily dismissed from the case the Terminal Company, upon whose track the train was passing at the time he received his injury, is left to conjecture. The only question here is, whether the Ann Arbor Company is liable for that injury. There is in the record a contract under which the Pere Marquette Company might have run this train over the Ann Arbor Company’s track to another station in Toledo. If it had been so operated, the construction of the contract between the Ann Arbor Company and the Pere Marquette Company might become material. But in this instance the Pere Marquette Company was not exercising the right which that contract conferred upon it. In that contract are stipulations from which the liability of the Ann Arbor Com-’ pany might be inferred with respect to injuries sustained by trainmen of the Pere Marquette Company on the Ann Arbor Company’s track. It contains no stipulation whatever as to a train moving on the Terminal track, nor is there anything in the record, to show that Ann Arbor Company was a party to the arrangement by which the Pere Marquette Company’s train was passing over the track of the Terminal' Company. Not only is there an absence of 'such evidence, but it affirmatively appears from the evidence that the Ann Arbor Company had no relation whatever to that arrangement. When the trial judge directed a verdict in favor of the Ann Arbor Company, he obviously took account of the considerations that the train was not operated under the contract of the Ann Arbor Company for the passage of the train over its road, and that the contract of the Ann Arbor Company imposed upon it no duty whatever with respect to trains passing into* the city over the track of the Terminal Company. The “Y” by which the train passed from the track of the Ann Arbor Company to that of the Terminal Company was constructed but a short time before this accident, and in so passing and operating its trains, they were pursuing some arrangement between the Pere Marquette and the Terminal companies, which does not appear of record. It is sufficient to say that the record not only negatively, but affirmatively shows that the Ann Arbor Company was not a party to that arrangement. We assume that the view of the case which led the circuit .court- to reverse the judgment upon the verdict so directed was, as stated in the brief of counsel for the defendant in error, that the tower-man was the servant of the Ann Arbor Company. In a general sense he was, and it may be that he acted in that relation so as to charge the Ann Arbor- Company for injuries resulting from his negligence to employes on trains of the Pere Marquette Company passing over the Ann Arbor track under the contract referred to. But to that question we need give no consideration since the injury occurred to one upon a train moving upon another road, under another arrangement with another party.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Judgment reversed.

■ Spear, C. J., Davis, Price, and Johnson, JJ., concur.  