
    The Pittsburg, Fort Wayne and Chicago Railway Company v. Thomas S. Devinney.
    A railway company is not liable in damages to a brakeman on one of its trains, for injuries sustained by him in a collision of bis train with another train of the same company, where the collision occurred by means of the negligence of the conductor or engineer, or both, of such other train; unless it appear that the company was guilty of a want of ordinary care in the selection and employment of an incompetent conductor or engineer through whose negligence the collision occurred.
    Error to the court of common pleas of Richland county. Reserved in the district court.
    *The original action was brought, in the common pleas, by Devinney against the railway company, to recover damages for injuries sustained by him, while acting as brakesman on one of the company’s passenger trains going east, and which collided with one of its freight trains going west; the latter train being known as second section of number 11.
    In his petition Devinney states that the collision and injuries resulted from the negligence of the company’s agents, to whom he was subordinate, and without any fraud on his part, or on the part of the servants of the company, equal or inferior to him in grade.
    The company demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The common pleas overruled the demurrer, and the company answered denying the carelessness charged in the petition, and to which the injuries are attributed.
    At the August term, 1864, of the common pleas, the cause was tried to a jury, and resulted in a verdict and judgment for $2,700 in favor of Devinney.
    The company took a second trial under the statute, at the November term, 1864, to a jury.
    At this trial a bill of exceptions was taken by the company containing a statement of evidence given on the trial, and also a portion of the charge of the court to the jury. A statement of the facts established by the evidence material to the decision here, is given in the opinion of the court.
    The common pleas, among other things, charged the jury:
    “ That a principal or employer (whether a natural person or a corporation) is not liable to one servant or employe for injuries resulting from the carelessness of another servant or employe, when both are engaged in a common service, and no power of control is given to one over the other.
    “ That where the servants stand as equals to each other, when no control or superintending power or authority is given to one over the other, where neither is in subjection to the other, but where they are acting in a common employment, though their ■employments may be separate and distinct and in different departments of the same common business, and *an injury results to one, by the negligence of the other, the principal is not liable.
    “But where an employer places one person in his employ under the direction of another also in his employ, such employer is liable for injury to the person placed in the subordinate situation, by the negligence of his superior.
    “ There must exist this relation of subordination or subjection, on the part of the servant injured, to the servant through whose negligence the injury resulted, in order to create any liability against their common employer.
    “If, therefore, the plaintiff was placed by the defendant in a po -sition subordinate to, and subject to, the orders of tbe fellow-servant through whose negligence the injury occurred, it would be liable. In order, however, to constitute the servants fellow-servants, in the sense that will defeat a recovery against the principal for the negligence of each other, it is not necessary that their business or employment should be the same. They may be fellow-servants, though the employments are separate and distinct, when both are necessary in the prosecution of a common enterprise. If the jury find from the evidence that the injury complained of by the plaintiff was the result of the negligence of the conductor of the train .designated as second section of number 11; that the said conductor had by the rules and regulations of said road the exclusive management and control of the operations of his train; that he superintended and controlled its running; that his will and intelligence •governed its running, without any participation of the plaintiff; and that in the business of the road, by the rules and general practice of the road, the plaintiff was subordinate to and under and subject to the orders of the said conductor : then the plaintiff may re•eover for an injury that resulted to him from the negligence of said conductor in the running and management of his said train, if the ■plaintiff was, himself, without fault, though the said conductor and ■the plaintiff were, at the time of the collision and injury, engaged -on different trains, and the plaintiff was, at the time, under the immediate orders and directions of another conductor.”
    To this charge of the court the company excepted.
    *The jury returned a verdict in favor of the plaintiff, and •assessed his damages at $3,000. ■
    The company moved the court to set the verdict aside, and grant -a new trial, for the following reasons:
    1. The verdict is contrary to law.
    2. It is contrary to the evidence.
    3. The court erred in its charge to the jury.
    4. The verdict should have been for the defendant, instead of the plaintiff.
    5. The damages are excessive.
    This motion was overruled, and judgment entered on the verdict ; and the company excepted, and, • to reverse the judgment, filed a petition in error in the district court, claiming that the common pleas erred:
    1. In overruling the demurrer to the petition.
    
      2. In refusing to set aside the verdict and grant a new trial.
    3. In the instructions given to the jury.
    4. The judgment was for the plaintiff, when it should have been for the defendant.
    At the June term, 1865, of the district court, the case was reserved for decision in this court.
    
      John P. Jeffries, Martin Welker, and B. Burns, for plaintiff in error:
    1. The petition of the defendant, filed by him in the common pleas, does not state facts sufficient to constitute a cause of action. The petition contains such a negative pregnant in the averment of negligence, as shows the plaintiff below was himself guilty of bringing upon him the injury of which he complained; and the fact that he states in his petition, that he was under superiors, was a conclusion of law, when he also shows that the accident was occasioned by a. fellow-servant of equal grade.
    The law, we think, is well settled, that the railway company is not liable for injuries occasioned to their employes by the negligence of a fellow-servant engaged in the same common business of the company; as to them no power of superior is exercised — all are' upon equality, though engaged in different offices in operating the trains. The defendant in error *being a brakeman on the train, was, in fact, and in law, a fellow-servant engaged with the conductor and other agents operating the train colliding with the one upon which Devinney was doing duty at the time of the injury he complains of. This being the case, we consider the weight of the evidence fully shows the verdict of the jury to be against the law and against the weight of .the evidence. Upon the legal proposition, to; sustain the view we have taken, we refer to the following authorities: 25 N. Y. 562; 17 N. Y. 134; 18 N. Y. 433 ; 3 Ohio St. 200; 8 Ohio St. 249; 11 Ohio St. 417 ; 12 Ohio St. 486 ; 6 Indiana, 205; 13 Indiana, 367; 2 Hilliard on Torts, 563 ; 7 Am. Law Reg. 555; 10 Cushing, 228 ; 6 Barb. 231; Redfield on Railways, 386.
    In 8 Ohio St. 249, it is remarked, in substance, by the court, that, although the business may be remote, and necessarily independent, of that being performed by another servant on the same train, and. over whom the injured party may have no control, and he at the same time discharging his own duty properly, still the other employes are, in law, his co-servants engaged in a common duty, and heneo no recovery in such case could be had against the corporation for injuries resulting to an employe. This same view is taken by the court in 11 Ohio St. 417. All who are engaged in facilitating the running of the train are considered co-servants, without regard to what part of the duty they are perfoiuning.
    The case in 12 Ohio St. 486, was an action by an administrator to recover for injuries received by a brakeman by reason of a defective brake. In the consideration of the case in the Supreme Court, this principle is announced: “ That the bi’akeman Was engaged in a common business with other servants of the company in operating the trains upon the road, and all were bound to see the condition of the machinery; and if the defect of the brake was the fault of any of the servants of the company, there could be no recovery against the company, because it was the fault of the fellow-servants.” The case in 17 New York, 134, was an action for injuries occasioned by a fellow-servant whilst the injured party was riding home from his labor on the railroad train. Selden, Judge, says in the termination of the case: “ The *general rule, that where several persons are employed in the same general service, and one is injured by the carelessness of another, the employer is not responsible, is now too well settled to be disputed; ” and after citing several authorities, the learned judge says: “ It is too late, after these numerous decisions affirming the proposition, to question the soundness of the reasoning upon which it is based.” And he further remarks: “But it is said the rule applies only in cases where the servant or agent whose negligence caused the injury, and the party injured, are engaged in service of the same-kind, and has-no application to cases where parties, although in the employment of the same person, are nevertheless engaged in different occupations. The truth of this position may, perhaps, be conceded. The rule is, that, when a person engages in any employment, he takes upon himself all ordinary risks belonging to the particular service in which he is to be employed, and is presumed to have indemnified, himself by the terms of his engagement against any special hazard known to attend it.” Upon this last proposition, the case in 12 Ohio St. 494, 495, is directly also in point.
    In Redfield on Railways, see. 170, pp. 386, 387, it is declared that “it is now well settled in England, and mostly in this country, that a servant who is injured by the negligence or misconduct of his-fellow-servant, can not maintain an action against the master for such injury.” The rule that servants in different grades ought to have their action against the master, meets with no favor from this learned jurist and author; and he refers to 20 Ohio, 415, and to 3 Ohio St. 202, where the doctrine of the text is maintained; but in these cases it is declared.as sound law, that if the conductor has control of the brakeman or other servant, by authority of the principal, the company will be liable, and in such cases the brgkeman and conductor are not co-servants.
    In these last-cited cases, the rule is, says the court, that “the servant takes upon himself all ordinary risks incident to the business, including liability to injury from the negligence of other servants employed with him by the common principal, but having no control over the business, or the servant who receives the injury. In such cases they stand to *each other as equals, and are alone liable for injuries they inflict.”
    The real point made in these two authorities, as we conceive, is that where different persons are employed by the same principal in a common enterprise, and no control is given to one over the other, no action can be sustained by them against their employer for injuries sustained by one agent through the carelessness of another.
    This is also the rule laid down in Hilliard on Torts, vol. 2, pages 265 and 266: “Each employe engages, knowing the hazard of the business, and the employer is not liable for their negligence where injury results to co-servants, unless-the principal is personally acting over them all. The degree of agency or service makes no difference.”
    The case in 20 Ohio, above cited, is the only case found in the books where the rule is extended so far as to make the principal liable for injuries to a subordinate agent on the ground of grade in the employment. And the Supreme Court of Pennsylvania, 3 Law Register, 598, refer to. 20 Ohio as the only case found to go so far. The judge (Lowry) has no hesitancy in adopting the rule laid down in 6 Hill, 592; 1 McMullen, 385, and 4 Metcalf, 49, and all other authorities sustaining the proposition, that the principal is not liable for injuries produced by one co-servant to another by negligence of either of the fellow-servants.
    It is no part of the contract of employment that the principal will respond in damages to the servant for injuries sustained by him by the negligence of a co-servant. The whole question must be determined by the law governing cases of master and servant; but not upon the arbitrary rule of protection, as in cases of husband and wife, parent’ and child, or guardian and ward, where protection is inferred.
    The master and servant are equal in law, and considered equally competent to take care of themselves, and consequently have only the remedy afforded to other individuals.
    Every man, therefore, who agrees to go upon a train as brakeman is a servant of the company, performing his respective part of service; yet he does so in common with others, in forwarding-the Common design; all are co-servants, from the *conductor down to the lowest grade of workmen, in the estimation of the law.
    2. The defendant in error, at the time of receiving the injury of which he complains, was a brakeman doing duty upon the passenger train going east, and was injured by that train colliding with a freight train coming west. That, at the time of the injury, Devinney was a co-servant with the conductor of the freight train, is a fact about which there can, we think, be no controversy, when-the whole case is properly understood. lie avers, in the second-paragraph of his petition, that defendant, by its agents and servants, so negligently and carelessly conducted the trains as to injure him. The real charge is, that those conducting the freight train caused the injury. In other words, shows most clearly, we-think, that the injury was produced by its fellow-servants, and not by any superior.
    The law does not grade the servants when they are all engaged in a common undertaking, such as railroading. In such an enterprise one may be conductor, another fireman, whilst the third may be brakeman. All, however, are on equality before the law, unless some superiority is given by the pxrincipial to one of the agents-to control the others. And even the rule is, as we conceive, the superior agent must act within the scop>e of his authority — must be clothed with the power of the principal. 3 Ohio St. 209; 4 Met. 49; 3 Cush. 270; 18 West. Law Journal, 181; 10 Ib. 409; 20 Ohio, 415 ; 18 Indiana, 226.
    3. The court of common pleas, in their instructions to the jury, took occasion to say, among other things, that-if “an employer places one person in his employ, under the direction of another-also in his employ, such employer is liable for injury to the per■son placed in the subordinate situation, by the negligence of his superior.” This proposition, in the words employed in announcing it by the court, was calculated to mislead the jury, as it plainly directed them that, if any one of the employes upon the train was of higher grade than the brakeman Devinney, the railway company would be liable for the injuries he had sustained. The succeeding sentence of the charge of the c'ourt fully explains to the jury what the *court wished to impress upon them as the law of the case. This is the explanation, or rather climax, of the instructions of the court upon this legal proposition: “ There must exist this relation of subordination or subjection, on the part of the servant injured, to the servant through whose negligence the injury resulted, in order to create any liability against their common employer. If, therefore, the plaintiff was placed by the defendant in a position subordinate to and subject to the orders of the fellow-servants, through whose negligence the injury occurred, it would be liable.” This, in our judgment, was going further than the rules of law’ will warrant. The ordinary understanding -of the jury would at once lead them to say that the conductor or ■engineer of the train, of course, would be superior to the brakeman, and hence, without further inquiry, would return a verdict for the plaintiff against the railway company. The concluding sentence of the charge could not, we think, convince the jury ■otherwise.
    The charge in regard to the conductor of the freight train being the superior, and the brakeman of the passenger train the inferior, was well calculated to mislead the jury. Still, advancing the erroneous idea, as we think, of the law of the case, the court here reiterates the dogma of inferior and superior, as between the conductor and brakeman, and,says to the jury, that “ if, by the rules and general practice of the road, the plaintiff was subordinate to and under and subject to the order of said conductor [that is, of the freight train, not of the plaintiff’s train], then the plaintiff may recover for an injury that resulted to him from the negligence of «aid conductor in the running of the train, if the plaintiff himself was without fault, though the conductor and the plaintiff wore, at the time of the collision and injury, engaged on different trains, and the plaintiff was, at the time, under the immediate orders and directions of another conductor.” The plain English of this part ■of the charge is, that the conductor is the superior and the brakeman tbe inferior servant of the railway company, and that if the brakemari is injured by the negligence of the conductor the company is liable, because the conductor, in law and in fact, is the superior — -controls and directs the inferior servant.
    *If the whole charge be taken together, it will confuse any jury; and, as a whole, does not present the law of the case properly before them, but, on the contrary, presents a system of law unknown in such cases, and so clearly erroneous, that the court should not permit the verdict of the jury or the judgment upon the-same to stand for a moment upon the record.
    4. The plaintiff in error also claims that the verdict rendered in the cause is against the evidence.
    
      Matson & Dirlam, for defendant in error:
    As to the first point made, that the petition in' the common pleas did not state facts sufficient to constitute a cause of action, we have simply to say that could the negative pregnant be found, we think the defect could not be reached by demurrer. And we think the petition, instead of averring that the injury was caused by a fellow-servant of the same grade, alleges exactly the contrary; nor do we deem the allegation that he was under superiors, a mere legal conclusion.
    We shall not find so much fault with the principles of law contended for by plaintiff in error, as their attempted application to the facts in the case at bar.
    If the doctrine contended for by plaintiff in error (which we do not concede) wore true — viz., the defendant in error being a brakeman on one train, was, in fact and in law, a follow-servant engaged in a common employment with the conductor and engineer of the approaching train colliding with the one upon which he was brakeman — yet we think the verdict is sustained by both the law and evidence.
    The issue made in the testimony is, simply, whether the injury was caused by the conductor or engineer of the train on which Devinney was braking, or some officer that controlled them and him; or was it caused by the negligence of the conductor or engineer who had control of the train which collided with the -one on which he (Devinney) was. The theory of the defendant below seemed to be, that if the injury could be traced to the superintendent, train-dispatcher, or the conductor or engineer of the train on which Devinney was stationed, the company would be liable,. because of their superiority *and control of both him and: the machinery on which he was employed. But if the injury was-caused by the carelessness of the conductor or engineer of the other train, then the company was not liable, because of the absence of controlling power over the plaintiff below, on the part of said conductor and engineer.
    We think on this issue the weight of the evidence fastened the-fault of the collision upon the superintendent, and those who were managing the train going east.
    We think the weight of evidence fixes the fault upon the employes of the company who held, and by the rules of the company; had a right to hold, Devinney subject to their orders and control.
    But it is claimed that the jury were prevented from fairly passing upon that fact, by the charge of the court, and that the instructions of the court, taken as a whole, must have conveyed to-the minds of the jury the idea that if they found the collision was-caused by the carelessness of the conductor and engineer- of the freight train, the company was liable.
    We do not think the charge of the court will bear as a whole orín any of its parts such an interpretation ; for the court was very careful to charge the jury that before they could find a verdict forDevinney, they must find, as a matter of fact, that the injury was caused by the negligence of some employe who was superior to, and had a right to control said Devinney in the business, and who-had a right to command and exact obedience from him in the employment of the company, and that unless this subordination existed on the part of Devinney to the servant of the company through whose negligence the injury was caused, there could be no-recovery.
    We think this charge more favorable to the company than the law will warrant; for it confines the liability of the road to the-acts of those servants who, by the rules of the company, had .a right to exact personal-odedience from Devinney at the time of the injury. We think the rule is broader, and extends to those servants who are, by the rules of the road, intrusted with the control of the machinery which may, by careless management, injure the employes who, by the rules of the road, *are excluded
    from any control over the -machinery, or the management of the business; who stand simply as “ hewers of wood and carriers of water;” who are compelled to intrust their personal safety to employes who have nothing in common with them, but who control the business of the common master, common only in his being the master of both.
    With the position of plaintiff in error on the law of the case, that a railroad company is not liable for injuries occasioned to employes by the negligence of a fellow-servant employed in the same common service, where as between them there is no right of control, we do not propose to take issue. We think that proposition too well settled in Ohio to admit of discussion.
    But, as we have said, we do differ widely as to the application of this principle in ascertaining who are fellow-servants engaged in a common service. Are they conductor and brakeman ? Wherein is-their service common ? The duty of one is to supervise, control and direct; “ his will alone controls everything, and it is the will of the owner that his intelligence alone should be trusted for this purpose.”
    This service is not common to him and the brakemen; they can not participate in it; they are not permitted .to exercise their judgments ; they may not advise or suggest as to stopping or starting-the train; they may not say, let us provide against collision, by ascertaining the positions of other trains, or let us run slowly around this curve, or await the passing of that train. These are-matters with which they have, and can have nothing to do ; they belong to the master, or to one exercising his prerogative, which is to direct and control. And on this point we refer to the opinion of the court, in C., C. & C. R. R. Co. v. Kearney, 3 Ohio St. 210.
    The very nature of the injury, and the manner in which it was brought about, demonstrates that it must have been caused by the carelessness of some one of the class of servants who were exercising the prerogative of the master, and not of the class to which Devinney belonged.
    If anything is to be inferred in law from the fact- that the negligent party is conceded to be a conductor, and the injured party a brakeman, injured by a collision, it seems to us that *it should b© that the parties were not fellow-servants, and from the nature of the injury, and the manner of its infliction, that it could not have been caused by the carelessness of a fellow-servant of the brakeman, engaged with him in a common service.
   Brinkerhoff, J.

The bill of exceptions sets forth all the evidence given on the trial below;. but it would be a useless labor to .■repeat it here. It is enough to say that it establishes, beyond reasonable question, the fact that the plaintiff below, being a brakeman •on a train going east, received the injury of which he complains, through the negligence and misconduct of the conductor or engineer, or both, in charge of-the train number eleven going west, and with which the train on which the plaintiff below belonged, and on which he was serving, came in collision.

The motion for a new trial on the ground that the verdict was against the evidence, apd the latter part of the charge of the court below to the jury, both, therefore, present the distinct question, whether — in the absence of any evidence that the railroad company had knowingly or negligently employed an incompetent conductor or engineer for the train, through the faulty running of which the collision occurred — the company is, in law, responsible for an injury received by a brakeman of one train, in consequence of the negligence or mismanagement of the conductor or engineer of another train of the same company ?

A comprehensive summary of the branch of the law applicable to this question, as settled by cases so uniform and numerous that it is needless to cite them, in England, New York, Massachusetts, Pennsylvania, and the most of the other states of the Union, is thus stated by Read, J., delivering the opinion of the Supreme Court of Pennsylvania, in Caldwell v. Brown, 6 Am. L. Register, N. S. 752 :

11A servant, by entering into his master’s service, assumes all the risks of that service which the master can not control, including those arising from the negligence of his follow-servants. In case of •an injury to one servant by the negligence of another, it is immaterial whether he who causes *and he-who sustains the injury are or are Pot engaged in the same or similar labor, or in positions of equal grade or authority. If they are acting together, under one master, in carrying out a common object, they are fellow-servants. The master, indeed, is bound to use ordinary care in providing •suitable structures, engines, tools, and apparatus, and in selecting proper servants, and is liable to other servants in the same employ t ment if they are injured by his own neglect of duty. But it makes no difference whether the master is an individual or a corporation: in either case he is responsible to his servants for his own negligence, but not for that of their, fellow-servants.”

But on this general doctrine a single exception has been ingrafted in this state- — first, by a divided court, in Little Miami Railroad Company v. Stevens, 20 Ohio, 415, and afterward by a full court, in C., C. & C. R. R. Co. v. Keary, 3 Ohio St. 201, and thenceforward recognized by this court in subsequent cases. That exception is this, that where one servant is placed in a position of subordination to, and subject to the orders and control of another servant of a common master, and the subordinate servant, without fault of his own, and while in the performance of his duty, is injured through the negligence of the superior servant while acting in the common service, an action lies in favor of the inferior servant so injured, against the master.

But this is the extent and limit of the exception. Beyond it no case in Ohio has ever gone; but, on the contrary, the language of the court in all the cases is careful to exclude the conclusion that an action might be maintained against the master by one servant who has been injured through the negligence of a fellow-servant, where no relation of superior and subordinate existed between them.

And the case of Whalan v. The M. R. & L. E. R. R. Co., 8 Ohio St. 249, turned upon this limitation. The decision in that case was made by a unanimous bench; and we are unable to see how the rulings of the court below can be sustained without overruling that case.

The case of Hutchinson v. Railway Co., decided by the court of exchequer in 1850 (5 Exch. 342), is even more closely in *point. There, in one aspect of the case assumed by the court to be the true one, the party injured was, as here, employed as a servant of a railway company on one train, and was injured by a collision with another train, occurring through the negligence of other servants of the same company in the management of the latter train. The court held that the company was not responsible, unless the company had been culpably negligent in the selection of the servant or servants through whose fault the injury arose; and no such negligence appeared in that case, as there does not in this.

Indeed, in all the books, I am unable to find a single case which would justify'the rulings of the court below, with the single exception of Chamberlain v. Mil. & Miss. R. R. Co., 11 Wis. 239, which seems to go to the full length of holding that a master is in all cases liable for an injury received by one servant, by means of the negligence of a fellow-servant engaged in a common employment, irrespective of any circumstances of superiority, subordination, rank, or grade. In going to this extent, I believe the Supreme-Court of Wisconsin stands alone. A majority of this court is unwilling to follow it, believing, as we do, that it would be wrong in’ itself, and disastrous in its tendencies to every business requiring many hands to prosecute it. Yet, I am unable to see how, if we sustain the rulings of the court below, we can, on any well-grounded-distinction, stop short of proceeding to the same extreme length.

Employers are not omniscient; and if they were, they would, hardly he able to find employes whose vigilance was incapable of relaxation, and whose carefulness would never lapse into negligence. It is therefore unreasonable to expect such results from employers of ordinary penetration and insight into character, and wrong to exact it from them. And if it be a crime, or quasi crime, as some who argue the question of the master’s responsibility seem unconsciously to intimate, to put in operation the tremendous and dangerous enginery and natural forces which modern civilization has-discovered, invented, and apjdied, it is surely a sufficient answer to-a claim of responsibility on that ground against the employer, on the part of the employe, to say that the flatter is a voluntary pariiceps criminis. And in the consideration of questions arising under the law regulating the rights and obligations of master and servant, it is important that we should not forget that the same rules which we apply as against railways and other rich and powerful corporations, must also be applied with equal’hand to private-employers of labor in analogous eases.

The true general rule is, and so it must be, that when men are enqfioyed for the prosecution of a lawful but hazardous business, they assume the hazards of such employments arising from the-negligence of co-employes, and stipulate for compensation according to their estimate of such hazards; subject, however, to this exception, that the master is liable for such injuries as accrued to-the servant from the negligence of a fellow-servant in the selection of whom the master has been culpably negligent; and to this we-in Ohio have added the further exception of a case where the servant injured is subordinate to, and acting under the orders of the culpable fellow-servant.

For the reasoning on which the decisions establishing this exception are based, the members of this court, as now constituted, are-not responsible; nor are we at all bound to carry out their logic to its ultimate consequences. In subsequent cases, strictly analogous in tbeir facts, those decisions will doubtless be accepted as authoritative ; but the case now before us does not require us to review them.

In adding this last-named exception to the rule elsewhere generally established, we have already diverged from the general current of judicial decision elsewhere. A majority of the court are unwilling to increase the divergence; doubting, as we do, the wis•dom of such a step, and being unwilling to assume the responsibility of what would savor so strongly of judicial legislation.

A majority of the court are of opinion that the court of common .pleas erred in overruling the motion for a new trial, on the ground that the verdict was against.-the evidence, and also in the latter part of the charge to the jury, as being calculated to mislead the jury ■into the belief that the plaintiff *below was entitled to recover on the facts of the case above assumed to be shown by the record.

Judgment reversed, and cause remanded to the court of common pleas.

Day, C. J., and Scott, J., concurred.

"White and Welsh, JJ., dissented.

Welch, J.,

dissenting. I can not concur in this opinion. It does not overrule the former Ohio decisions on the subject, and yet it narrows the ground upon which they stand, so as to make them utterly indefensible. I admit that they stand upon exceptional .ground — the weight of authority, outside of Ohio, being that a servant, without regard to his grade of authority or position, can nqt maintain an action against his employer, for the fault of a fellow-servant. But what is that exceptional ground ? A majority of this court confine it to cases of actual, direct authority of the servant at fault over the party injured, leaving the latter without remedy where the fault is outside of the authority of the former, and outside of the proper sphere of the latter, but committed by a servant engaged in another department of the common business. Accordingly, an .action is denied in the present case, to a brakeman upon a train of cars, because the injury he received was occasioned by the negligence of a conductor upon the colliding train; and he is told that, if the injury had resulted from the negligence of a conductor upon Ms own train, he could have maintained his action 1 This is not merely making a distinction without a difference ; it is-making a distinction against a party when the difference is in his-favor. And when we remember, that a principal reason why the fellow-servant is ever denied his action in such cases, is his supposed power to- interfere and prevent the injury, it is plain that the discrimination is not founded in principles of justice or public policy; and I deny that it is warranted by any just interpretation of the Ohio decisions referred to.

The Supreme Court of Wisconsin places these Ohio cases upon a much broader basis. The court (in Chamberlain v. *M. & M. R. R. Co., 11 Wis. 238) holds that a servant can maintain an action against his employer, for the fault of his fellow-servant, in all cases-where the party injured is not himself actually at fault; and the court bases its decision mainly upon the authority and reasoning of the court in the- Ohio cases referred to.

There is a wide difference between these interpretations, and I think the truth lies between them. I understand the principle established by our former adjudications to be this : The servant will be allowed his action, in such cases, when it appears that he could not have participated, or interfered to prevent the injury, without a breach of duty; in other words, where he could not have done so-without going out of his proper sphere-of action, and thus violatingthe rules and regulations of the business — which are nothing more or less than the laws of his employer. And .it matters not whether the-breach of duty consists in the violation of the laws of his employer, which regulate the authority of superior and inferior servants, or whether it consists in a violation of other laws prescribing the particular sphere of action for each. The case at bar falls clearly within this principle. It would certainly be as much a violation-of duty for the brakeman to go out of his proper sphere of action as such, and usurp the duties of a conductor, or indeed of any servant on another train, as it would be to usurp the duties of the conductor on his own train. In either case, he would be- guilty of insubordination, and would himself be liable to an action. His business lies within the circle prescribed for him by the laws of his employer. No employment-outside of that circle is a “ common employment ” to him. As long as he remains within it and does his duty there, his employer is bound to protect and indemnify him against the acts of other servants, with whom he has no community of right or power to participate. He is bound to indemnify him as well against the acts of those placed upon another train, as of those-placed in authority over him on the same train. The business upon the two trains, at least as to the subordinate hands upon each, is, in no proper sense, a common business. And if, by a fiction, it is, in any sense and to any extent, to be considered as a ^common business, then I say, by the same fiction, and to the same extent,, the authority of the conductors on each must, necessarily, be a common authority over both. But I deny that it is, in any proper sense,, a common business, or that it is necessary to show any such common authority.

I am of opinion that the judgment of the court below should be affirmed.  