
    Railway Company v. Ranney.
    1. Where, by the rules of a railroad company, brakemen on a train of cars are placed under the control and direction of the conductor, the relation of superior and subordinate, as between the engineer and a brakeman, is not created by a rule of the company requiring the engineer to give certain signals for setting or relieving brakes, which also requires brakemen to work the brakes accordingly.
    2. In such case, the engineer and brakeman are fellow-servants in a common employment; and the company is not liable to either for an injury resulting from the negligence of the other. Sailway v. Lewis, 33 Ohio St. 196,—approved.
    Error to the District Court of Eranklin County.
    The original action was brought by defendant in error against the Pittsburgh, Cincinnati & St. Louis Railway Company, plaintiff in error, to recover damages for personal injuries resulting from the carelessness of defendant’s engineer, under the following circumstances:
    On August 2, 1871, the plaintiff below was employed as a brakeman on a train of freight cars of the defendant, running from Columbus, Ohio, to Dennison, Ohio, under the management of a conductor, an engineer, a fireman and two brakemen. On approaching Pataskala station, the train was moving at the speed of about fifteen miles per hour when a flag signal from the station was given to slow the train for orders, whereupon the engineer, by a single blast of the locomotive whistle, signalized the application of brakes by the brakemen, and thereby the speed of the train was reduced to six or eight miles per hour when opposite the station-house. While moving at this rate the engineer received dispatches 'from the station agent, and also orders to proceed without stopping at the station, whereupon, by two blasts of the whistle the engineer signaled the removal of the brakes by the brakemen. While the plaintiff, in obedience to the signal, was engaged in removing brakes, and before a reasonable time for the removal had elapsed, the engineer applied steam to the engine so violently as to break and separate the train at the coupling of the cars where the plaintiff was engaged in removing brakes, whereby the plaintiff was thrown from his feet and fell between the cars, and was thereby very seriously injured, so that it became necessary to amputate his left leg above the knee and three toes from the right foot.
    In stating his cause of action, the plaintiff alleged in the petition, among other things, the following:
    “This plaintiff states that it then and there became the duty of this plaintiff, when on said train of cars as brakeman as aforesaid, to obey and carry out in a prompt and reasonable manner all orders or commands given to him in any manner by the engineer, then and there handling, operating and controlling the locomotive attached to said train of cars, and hauling the saíne from Columbus to Dennison, as aforesaid, in reference to putting on or letting off the brakes attached to the cars, making up and forming said train of cars so hauled and moved by said locomotive, and that in said employment of brakeman on said train he was under the command and order of said engineer, and therefore compelled to obey the orders and commands given by said engineer to him in reference to using said brakes in the starting or stopping said train of cars, and as above stated in said operating, hauling, and moving said locomotive and train of cars attached thereto, said engineer was in all respects the superior of the plaintiff, and it was his duty to give orders and commands to plaintiff when on said train of cars, in reference to the time and place, and under what circumstances said brakes should be applied to the stopping or impeding the speed of said train, and when the same should be leftff o or loosened in order that the train might be enabled to move at a greater rate of speed.”
    The plaintiff further says that said injuries were so inflicted iipon him without any fault, neglect, or carelessness upon his part, and whilst he was in the proper discharge of his duties as a brakeman on said train of cars aforesaid, in an ordinary, careful and prudent manner, and plaintiff avers that said injuries were so inflicted upon him, as hereinbefore stated, by reason of the negligence, default, and want of proper care and caution, and by reason of the rashness, negligence and carelessness of the said engineer, who had charge of the said locomotive, its movements, management and control as aforesaid, and who gave said order and commands to plaintiff; and the said injuries were caused by the said engineer aforesaid, by his sudden and rapid starting of said locomotive and cars in motion, without signal or warning to plaintiff or other employees, and without the said engineer waiting sufficient or reasonable time to .enable plaintiff to obey and carry out his said order or command to let off or loosen brakes as aforesaid ; in all which, said engineer was guilty of the most grossly negligent, improper, rash and careless conduct, which, .as aforesaid, was the sole cause of the infliction of said injuries upon plaintiff, hereinbefore stated.
    The defendant, by its answer, denied that the engineer was guilty of carelessness or negligence, as chai'ged in the petition, and also, “ that in virtue of said employment he (plaintiff) thereby became, and was, in fact, subject to the orders and control and direction of the engineer of said freight train, or that said engineer thereby became, and was in fact, in all respects his superior upon said train, whose orders and commands he was in all respects bound to obey. On the contrary thereof, the defendant avers that said train was on said day under the charge and control of a conductor, who was, as such conductor, the superior of both said engineer and brakeman, and whose orders and commands both said engineer and brakeman were alike bound to obey in said common service and in subordination to said superior servant of said defendant.”
    To this answer the plaintiff replied as follows:—“ That this plaintiff admits that there was'on and connected with said train of ears mentioned in plaintiff’s petition, a conductor who was the superior of plaintiff, and in reference to the time of starting said train at stations where it stopped, was the superior of said engineer, but plaintiff says that in all respects as to the starting, stopping, controlling and movements of said engine and the cars attached thereto, both said engineer and conductor were, in all respects, the superiors of plaintiff, and both were the responsible parties in charge of said train as to said plaintiff and said railway company.”
    On the trial in the common pleas, a verdict and judgment were rendered for the plaintiff. A bill of exceptions containing all the testimony and the charge of the court was made part of the record. The judgment of the common pleas was affirmed in the district court, and this proceeding is prosecuted by the railroad company to reverse both judgments.
    
      C. N. Olds and Lorenzo English, for plaintiff in error:
    
      Railway Co. v. Lewis, 33 Ohio St. 196; Railroad Co. v. Stephens, 20 Ohio, 415 ; Wood on M. & S. 809, 821, 847, 848, 883; McAndrews v. Burns, 5 Reporter, 120; Valetz v. Railroad Co., 5 Reporter, 127 ; that engineers and brakemen are in the same class of service, see Louisville, &c. R. R. Co. v. Robinson, 4 Bush (Ky.), 507; Chamberlain v. R. R. Co., 11 Wis. 238; Chicago, &c. R. R. Co. v. Murphy, 53 Ill. 336; Whalan v. R. R. Co., 8 Ohio St. 249.
    
      W. B. Page and T. E. Powell, for defendant in error:
    That an engineer may be the superior of other employees was decided in Railway Co. v. Collins, 2 Duvall, 114, and in an article in 5 Am. Law Reg. 272, Redfield commends this case in favorable terms. This principle has been substantially affirmed by this court in a late case, in 36 Ohio St. 221, L. S. & M. S. R. R. Co. v. Lavally. It was there held that Lavally “ was the subordinate of the foreman, in respect to the work in which he was engaged at the time he was injured; ” and it would have made no difference in his right to recover, if he had been originally employed by the company to work upon ears in a shop under another foreman, or had even been employed to brake in the yard, provided that, at the time he was injured, he was working under the direction and authority of the person whose negligence caused the injury. •
   MoIlvaine, J.

The principles of law in relation to the liability of a master for an injury to his servant while engaged in the performance of duties under his employment, have been so frequently considered and declared by this court, and upon such varied statements of fact, that one might be justified in assuming that the law upon this subject, in all its bearings, Iras been fully settled. The respective rights and duties of employer and employee, sound in contract. The employer implicitly engages to use reasonable care and diligence to secure the safety of the employee, and among other things, to exercise reasonable care in the selection of prudent fellow-servants. lie also engages that every one placed in authority over tire servant, with power to control and direct him in the performance of his duties, will exercise reasonable care in providing for his safety, whether such superior be a fellow-servant or not, in the ordinary sense. The superior, in his relation to the subordinate servant, is, in the language of Judge Day, in Railroad Co. v. Lewis, 33 Ohio St. 196, the alter ego of the master. This doctrine, which imputes to the master the negligence of a servant to whom he has delegated authority over other servants, has been firmly ingrafted in the jurisprudence of this state ever since the case of Little Miami R. R. Co. v. Stephens, 20 Ohio, 416. See also C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201; and L. S. & M. S. R. R. Co. v. Lavally, 36 Ohio St. 221, and cases therein cited.

On the other hand, the servant assumes all ordinary risks of the employment against which ordinary care on the part of the master does not provide: and among the risks thus assumed by the servant, are those which may result from the carelessness or negligence of fellow-servants. Indeed, in the case before us, it is not claimed by the defendant in error -that the railroad company should be held liable, if it -were free from negligence, actual or imputed; and it is conceded, that such would be the case, if the engineer and himself were mere fellow-servants in a common employment. Nor is it denied by the railroad company, that it would be liable if the injuries of the defendant'in error were - caused by the carelessness of one of its employees, who was intrusted with power to control and direct the defendant in error in the discharge of his duties in their common employment.

The contention between the parties is not, whether a given proposition is or is not law; but rather as to a question of mixed fact and law; namely, whether such relation of superior and subordinate existed between the'engineer of the train and the defendant in error as rendered the plaintiff in error responsible for an injury to the latter, caused by the carelessness of the former. The case is one for the application, rather than the definition of legal principles. We must therefore ascertain the exact relation which existed between the engineer and the defendant in error.

They were both servants of the railroad company engaged in a common employment; to wit, the operation of a single train of cars. The service. of the engineer was confined to the care and management of the engine, the motive power of the train, while the defendant was employed upon the cars, and his duty, among other things, was to tighten and loosen the brakes upon the cars. Although the duties of these servants were not identical, yet as the services of each were necessary to the accomplishment of a single purpose, namely, the movement of the train, they were fellow-servants, in a common employment; so that, if this relation, and none other, existed between them, the risk of injury to either by the carelessness of the other was assumed by each, and the common master or employer would not be liable. See Whaalen v. M. R. & L. E. R. Co., 8 Ohio St. 249 ; Manville v. C. & T. R. R. Co., 11 Ohio St. 417; P., Ft. W. & C. Ry. Co. v. Devinney, 17 Ohio St. 198 ; Kumler v. Junction R. R. Co., 33 Ohio St. 150.

This brings us to inquire whether there was such relation of superior and subordinate existing between the engineer and brakeman as to render the common employer responsible for injuries to the latter caused by the negligence of the former. The crew consisted of a conductor, engineer, fireman and two brakemen. Unquestionably the train was under the control of the conductor, and all the train hands were subject to his control and direction. By the rules of the company, “ Conductors are required to see that brakemen are attentive to duty. Two brakemen must, at all times, be stationed on the tops of the cars of each freight train, when the train is in motion.” “ The speed of freight trains, which must be governed by the use of brakes when descending grades, is not to exceed fifteen miles per hour.” “ Conductors of all trains aro required to keep a brakeman on the last car, while the train is in motion.” “Freight conductors are required to ride on a part of their train where they can see that their men attend to their duties, can signal them on descending grades and can assist in applying the brakes in case of danger.” “ Brakemen must use judgment in applying the brakes when approaching a station, and endeavor to stop the train at the right point without the necessity of the engine sounding the whistle.” These rules, as well as the weight of all the testimony, show that brakemen are under the general control and direction of the conductor.

Indeed, the only pretense, found in the testimony, for the claim of defendant in error, that brakemen are subordinate to the engineer of the train, is found in the fact, that it is the duty of brakemen to observe and obey certain signals given by the engineer, to wit: Rule 18. “ One long blast of the whistle is a warning of the approach of a train: one short blast is a signal for putting down brakes and stopping the train: two short blasts for relieving the brakes and starting the train: three, for backing the train.” It is contended that these signals are in the nature of orders or commands, which the engineer is authorized to give to brakemen, which they are bound to obey; and. hence, the relation of superior and subordinate is created. A majority of the court do not so understand either the purpose or effect of the rule. These signals are so named properly, and are intended to notify all concerned of the thing signified. They are addressed to the conductor as well as brakemen, and it is the duty of the conductor to see that brakemen perform the duty signified. This duty is imposed upon the brakemen by force of the rule itself, and not by virtue of any authority vested in the engineer over the brakeman. The signal is a mere notice. The rule is the order of the company to the brakeman directly. Suppose a train is signaled by a station agent, as this train was, to stop for orders. It thereby became the duty of the conductor, as well as of each employee on the train, to stop for orders; and yet, no one can contend that such station agent, who gives the signal, is the superior, and the train crew subordinate employees of the company, within the meaning of the rule under consideration. A variety of signals, under a variety of circumstances, are required to be given by different employees of the company, to signify that an occasion exists for the performance of a particular duty, but it would be absurd to hold that in each case, the employee giving the signal is a superior servant, to whom all others, to whom information is thus communicated, are subordinated; so that the company would be responsible to them for any act of negligence of the employee who gave the signal, whether such negligence was in giving the signal, or in the performance.of other duties.

For, it must be observed, that negligence or carelessness is not affirmed of the act of the engineer in giving either the signal to tighten the brakes or to loosen them. The only negligent and careless act charged against him, was in forcing the engine forward violently, without giving time to the brakemen to loosen the brakes. The signal informed the brakemen that the train was about to go forward. The rule is: “ Two short blasts for relieving the brakes and starting the train.” The matter of applying the steam to the engine, and starting the train forward, was under the control of the engineer alone, and although we think, upon the testimony, the act was recklessly performed and caused a very serious injury to the brakeman, it was, nevertheless within the risks assumed by the defendant in error when he engaged with the plaintiff in error to discharge the duties of brakeman on the train.

This conclusion of the court is fully sustained by the decision of the supreme court commission in P., Ft. W. & C. Ry. Co. v. Lewis, 33 Ohio St. 196. That case was an action by a brabeman against the railroad company for an injury caused by the negligence of the engineer, and the negligent act complained of was in starting the train, while the brakeman was in a dangerous position, without giving the required signal. We refer to the very able opinion of Judge Day, without quoting from the case, further than the 4th proposition in the syllabus, which reads as follows: Where an engineer and brabeman were employed by a railroad company in operating the same train, and there was no evidence to prove that the brakeman was placed in,a position of subordination to the engineer, other than what may be implied from the rules of the company, requiring the engineer to give certain signals as “a notice” to apply or loose the brakes, and requiring the brakeman to manage the brakes “ according to circumstances and the signals of the engineer,” and placing the brakeman, while on the train, in subordination to the conductor:—Held, that the engineer and brakeman were servants of the company engaged in a common service; that the relation of superior and subordinate did not exist between them; and that, therefore, the company was not responsible to the brakeman for an injury occasioned by the negligence of the engineer.”

True, in the case before us, several witnesses testified that, on the road of plaintiff in error, brakemen are subordinated to the engineer of the train; but upon the whole record, it is quite evident that the information of the witnesses was based solely upon the rules above quoted in regard to the giving and obeying signals for setting or relieving brakes, so that, in point of fact, this case in this respect is exactly simular to Lewis’s case; and a majority of the court can see no good reason for overruling that decision.

Judgments reversed a/nd cause remanded.

Okey, C. J.,

dissenting. A railroad company is liable in this state for the negligence of-a conductor, causing injury to a brakeman, upon the ground that the company places the conductor in a position of superiority to the brakeman. But there is no magic in the word conductor; and if the brakeman is bound to obey the orders of the engineer in applying and loosening brakes, as he clearly is, and while obeying such orders is injured by the negligence of the engineer, it is difficult to find satisfactory ground for holding that the company is not equally liable. Argument, however ingenious, based on a distinction between such cases, has for its support no valid reason, and is necessarily fallacious. In my opinion the law of this state is, that, wherever a master has in his employ two or more persons, and the nature of their employment is such that one is required to give orders to the others, who are bound to obey, and while doing so are injured by the negligence of the person placed in such position of superiority, the master is liable; and it is immaterial whether the negligent person be known as conductor, engineer, or by other designation.

In this case the company is clearly liable, in my judgment, by a just application of the principle I have stated. By the very nature of the employment, the brakeman was subordinate to the engineer. But that view is much strengthened by reference to the general rules for running trains,” which are made part of the record. In looking into those rules I find they do not support the theory that the conductor alone is superior to the brakeman. On the contrary, the engineer is, under the rules of the company, in many things as much superior to the brakeman, and as much beyond his control or advice, as the conductor, and the brakeman is quite as likely to be injured by the negligence of the former as the latter. The company speaks as emphatically and as potently through the engineer as through the conductor. Take the very ease under consideration. Pataskala was not a regular stopping-place .for this freight train. The conductor gave no signal to stop, but the engineer, in pursuance of a rule of the company, did give the signal for such purpose. The rules provide, inter alia: “ One short blast is a signal for putting down the brakes and stopping the train; two short blasts for relieving the brakes and starting the train. . . . When the signal bell on engine is rung by conductor to stop at next station, the engineer will answer the signal with two short whistles. Engineers will also gi/oe the same signal when it is seen to ie necessary to stop at a station at which he has not ~been signaled to stop iy the conductor.” Engineers “ will be held equally responsible with the conductors in case of any violation of the rules and regulations of the road.”

Here the engineer gave the signals because the company, by fixed rules, commanded him to give them, without waiting for any order of the conductor, and the brakeman obeyed the signals because it was his imperative duty to do so, under the rules of the company. And the same rules which required the engineer to give the signals, made it his duty, when the brakes were loosened, to put on more steam so as to increase the speed. The engineer, in performing this last duty, however, was guilty of gross negligence; he started the train so suddenly as to break it into three sections and maim Ranney for life; and it is fair to say that Ranney would not have been injured if he had not been at the very moment obeying the orders of the company, given through the engineer, to loosen the brakes.

The conductor performed no office whatever at or before reaching Pataskala station—there was none for him to perform. The injury would have happened the same way, to the same ex-' tent, and from the same cause, i. e., the negligence of the company, acting through the engineer, if the conductor had been absent from the train. Shall we segregate the acts of the engineer performed in the few moments which elapsed from the time of giving the signal to apply the brakes until the injury occurred, holding that in giving the signals he was the company’s alter ego, and in putting on more steam a fellow-servant of Ranney—his right hand the company, his left a mere fellow servant ? Surely there is no real foundation for any such distinction.

Railway Co. v. Lewis, 33 Ohio St. 196, was, I think, wrongly decided, and of the same opinion were two of the five judges who heard that case, and the view of the majority in this case is, in my judgment, equally erroneous.

White, J., dissented on the same ground.  