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the servants of the company.' To lift and move these plates there was attached to each crane a set of hooks connected with the cranes by means of a chain. These plates were only about one-half inch thick, and a bundle of seven or eight were customarily carried at one time for loading. One set of hooks would be attached to the forward end of the plates, and the other set to the other end. When the hooks were thus attached, the plates could be securely lifted and moved into position over the wagon; but to do so without danger of their slipping out of the hooks it was essential that the cranes should be operated together. On the day when Francis Wingle was hurt, a usual number of plates had been brought from the rear of the mill to the wagon and were suspended over the wagon driven by Nuss and there stopped. Nuss was inexperienced in loading, and at this stage he called on defendant in error, who was outside the mill with his own team, to come in and show him how to proceed with the loading. He came in accordingly, passed by Nuss' horses, and took a place on one side of the front wheels of his wagon. Seeing from the position of the suspended plates that, if lowered then on the Nuss wagon, they would rest too far back on the wagon and be liable to slide off while being hauled, he called out to the boys in charge of the cranes, “Come ahead, boys," and motioned with his hand. The front crane was started forward by the boy in charge of it, without waiting to see that the other was also inoving. The result was that the plates did not move, but the front hook, on the side of the plaintiff below, pulled out. The plates were at this moment suspended 11% or 2 feet above the wigon, and were prevented from falling on the wagon by the hook on the opposite side of the front end, so that they were caused to swing toward plaintiff and slide to one side, catching him before he could get out of the way.

D. H. Tilden, for plaintiff in error.
F. M. Cobb and R. B. Newcomb, for defendant in error. ·
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON, Circuit Judge, delivered the opinion of the court, after making the foregoing statement of the case.

The court below instructed the jury that Wingle was not the fellow servant of the boys operating the cranes, and that the negligent act of moving one crane in advance of the other, thereby causing the plates to slip out of the hooks attached to the forward crane, was one for which the Otis Steel Company was responsible. The question as to whether the defendant in error had contributed to his own injury by standing unnecessarily in a place of danger, he submitted under proper instructions to the jury. There was a verdict and a judgment for he plaintiff. It is now insisted that the court erred in instructing the jury that the defendant below was guilty of negligence, and in not instructing them, as requested, to find for the plaintiff in error.

That there was negligence in failing to move these two cranes forward at the same moment is. demonstrable. The effect of moving one before the other would be to leave the plates in their suspended position over the wagon, and would, inevitably, pull the forward hooks or one of them loose and cause the plates to slide, as they did, to one side. It was therefore not error to say that the movement of the forward crane by the servant of the plaintiff in error, without seeing that the other crane was started at the same time, was negligence. Neither was Wingle the fellow servant of the man operating the crane. Wingle was the servant of his own employer, who was an independent contractor. It was the business of the plaintiff in error to place the plates in such position upon the wagon as should be indicated

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by the driver. If, in doing this, it was done negligently, it was the actionable negligence of the Otis Steel Company. But it is said that, in respect to this particular transaction of loading this wagon with these plates, the plaintiff became for the time the servant of the Otis Company, and those in charge of the cranes his fellow servants. The fact that Wingle was the general servant of his father would not, as matter of law, prevent him becoming the particular servant of the Otis Company. That he was employed and paid only by his father would not preclude his becoming ad hoc the servant of the plaintiff in error in a particular transaction. Powell v. Construction Co., 88 Tenn. 692, 701, 13 S, W. 691, 17 Am. St. Rep. 925; Byrne v. K. C., etc., Ry. Co., 61 Fed. 605, 9 C. C. A. 666, 24 L. R. A. 693. In Powell v. Construction Co., cited above, it was said that:

“The better test would seem to be: Was he, in regard to the particular matter in which he was employed, doing the work of a general master, or was he engaged in doing the work of another, over whom the general master had no control?"

It was undoubtedly the business of the driver of the wagon being loaded to indicate the position of the plates on his wagon in which they might be most safely and advantageously carried. But it was the business of the Otis Steel Company to place the plates upon the wagon in such position as should be indicated. Plainly there was no lending of the cranes and the men operating them to Wingle, the hauling contractor, or his drivers, for it was not the business of Wingle to load the plates. Neither was there any lending of the driver to the Otis Company for the purpose of assisting that company in its duty. Each had a distinct duty to perform, and Wingle's did not begin until the loading was finished. The only direction he gave, or had a right to give, was to move the cranes forward slightly, and this because, if the plates were dropped from the hooks at the point where the movement of the cranes had been stopped, they would not ride well on the wagon. The simple giving of a direction or a signal for the cranes to move forward a little, that the load might be better placed, was no transfer to the service of the Otis Steel Company, but a proper discharge of his duty as the servant of the owner of the team, to see that the loading was properly done by the Otis Company. In obeying the signal to move forward, the operator was acting only as the general servant of the Otis Company. The duty to comply was a duty imposed by his contract of general hiring, and not by reason of any authority the driver had or any which he could enforce. The Otis Company undertook to move the plates into proper position for carriage, and it was its duty to obey the signals of the driver indicating when the plates were in proper position on the wagon. The circumstances of the case bring it quite within the principles applied in The Lisnacrieve (D. C.) 87 Fed. 570, McGough v. Ropner (D. C.) 87 Fed. 534, and The Slingsby, 120 Fed. 748, 57 C. C. A. 52, where stevedores were injured by the negligence of a servant of the ship in operating a winch, although the winchman operated the winch by direction or signal from the stevedore. The carriage cases of Quarman v. Burnett, 6 M. & W. 499, Jones v. Liverpool, 14 Q. B. D. 890, and Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed.

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652, are also in point. In those cases it was held that one who hires a hack or cab with a driver is not responsible for the driver's acts of negligence, where he assumes no further control than to tell him where to drive, or stop, or start. The negligence of the plaintiff in error was so demonstrable upon the undisputed facts of the case that there was no question for submission to the jury, and the court was quite within its authority when it instructed the jury to that effect. "When but one inference can be reasonably drawn from the evidence, the question of negligence or no negligence is one of law for the court." trict of Columbia v. Moulton, 182 U. S. 579, 21 Sup. Ct. 840, 45 L. Ed. 1237.

Neither did the court err in submitting the question of contributory negligence to the jury. The weight of evidence did establish that it was usual for the driver of a wagon receiving a load of steel plate to stand between his horses, upon the wagon tongue. This was, doubtless, due to the fact that he would be out of the way, and, in case they should slip or fall, be in a reasonably safe place and in a position to control his horses and guide the plates by his hand, if necessary. Nuss, the driver of this wagon, was at the time on the wagon tongue, and escaped injury. Wingle stood on the ground, not under the suspended plates, as seems to have been the theory of counsel, but out upon one side of the front wheels. If the plates had fallen, they would not have hit him. One hook slipped. The plates were slued around toward and slid sideways against him before he could get

The inference of negligence or no negligence in standing where he did is not so plain and indisputable as to become a question of laws The facts of the case bring it within the rule applied by this court in Erie R. R. Co. v. Moore, 108 Fed. 986, 46 C. C. A. 683, Michigan Headlining & Hoop Co. v. Wheeler, 141 Fed. 61, 72 C. C. 1. 71. and Taggart v. Republic Iron & Steel Co., 141 Fed. 910, 73 C. C. A. 144.

Judgment affirmed.

(Circuit Court of Appeals, Fourth Circuit. April 10, 1907.)


Civ. Code S. C. 1902, § 2135, provides that every railroad corporation shall be responsible in damages to any person or corporation whose building or other property shall be injured by fire communicated by its locomotive engines or originating within the limits of the railroad's right of way in consequence of the act of any of its authorized agents or employés. Held, that where a fire was started by the negligence of the subboss of a railroad bridge and trestle crew, while using a boarding car as a place to sleep during the night, when he was not on duty, he neither an agent nor employé of defendant within such section, and hence

the company was not liable for the result of his acts thereunder. 2. MASTER AND SERVANT_ACTS OF SERVANT-LIABILITY OF MASTER.

Where a fire was negligently set by a railroad's subboss of a bridge and trestle crew, while he was sleeping in one of the railroad's boarding cars, when not on duty, his act was not performed in the business of the


railroad company. Hence the latter was not liable for the result thereof at common law.

[Ed. Note.-For cases in point, see Cent, Dig. vol. 34, Master and Seryant, § 1225.)

In Error to the Circuit Court of the United States for the District of South Carolina, at Greenville.

C. P. Sanders (Sanders & De Pass, on the briefs), for plaintiff in error.

Stanyarne Wilson (J. A. Sawyer, on the brief), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and McDOWELL, District Judge.

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MCDOWELL, District Judge. This was an action at law brought by the defendant in error--to be hereafter referred to as the plaintiffagainst the plaintiff in error, to recover damages for the injury to the stock, equipment, and buildings of the plaintiff at Union, S. Č., from fire which originated in a boarding car belonging to the defendant.

It appears that the defendant had a work train for the use of one of its bridge and trestle crews, consisting of a car used as a cooking and dining place, a sleeping car for the two white members of the crew, a sleeping car for the negro members, and one or more cars for timber and tools. For a considerable time prior to the fize, which occurred about 11 o'clock on the night of October 22, 1904, this construction train had been placed at night after coming in from work on a short spur track close to the premises of the plaintiff. This spur track belonged to the Union & Glenn Springs Railroad Company; but it is abundantly shown that the defendant was authorized to use it for the purpose above mentioned. The foreman of the crew was a white man by the name of Pope. The only other white member of the crew was one Ayres, who died some time after the fire and prior to the trial. During the forenoon of the day preceding the fire Pope quit work and left the crew under the charge of Ayres. After the day's work was finished Ayres had his supper in the dining car, and then went into the town. He returned about 8 o'clock, and went to bed in the white sleeping car in the bed regularly used by him. In this car there was a portable kerosene lamp, provided by the defendant for the use of the occupants of the car. When this car was in motion, the lamp was usually placed in a wall bracket. On the night of the fire the lamp was on a table very near the foot of the bed used by Ayres. About 11 o'clock of that night the negro cook was awakened by cries of fire, and, on making his way into the sleeping car where Ayres was, he found the car filled with kerosene smoke and the bed and bedding ablaze. There is much evidence tending to show that Ayres, who at this juncture was standing at the window of the car, making no effort to subdue the fire, was very drunk. The alarm quickly brought numerous people to the scene, and the evidence of nearly every one who saw Ayres indicates that he was drunk. In fact, the cook appears to have found it necessary to bodily carry him from the burning car. The result of the fire was the destruction of

several of the cars Pope, the foreman month. The rema paid monthly at a of work. Avres hours, in the absen some evidence ten negro members of Work train. But hours Ayres was he saw fit, and it in order to go to work whatever, a least. At the timforming any duty

The complaint also contains as a the result of the to reads as follow

“Every railroad or corporation wlios municated by its l right of way of sa agents or employee on the right of was shall have an insu be so held responsi

The assignmen based on the ref refusal to give was not in the hours. We reg: as being, so far ployés." There and also evidenc over. the time the fir statute.

So far as we never ascribed complaining of right of way o Railway Co., by that court t Railroad Co., 3 S. C. 86, 19 S E. 497.

“In determinin ant's employmer the time engage is at liberty fro be no question

The one

In 19

of the cars and of the property of the plaintiff. It appears that ne foreman, and McClurkin, the cook, were employed' by the

The remaining members of the crew, including Ayres, were onthly at a fixed rate per day, according to the number of days k. Ayres was in some sense a “subboss.” During working

in the absence of Pope, he had charge of the crew. There was evidence tending to show that at night, Pope being absent, the

members of the crew regarded Ayres as having charge of the train. But all of the evidence was to the effect that after work s Ayres was a "free man.” He could sleep in the car or not as aw fit, and it was clearly shown that he returned to the car merely rder to go to bed. Since 6 o'clock that afternoon he had done no rk, whatever, and had none to do until the following morning at st. At the time the fire started he was in no sense engaged in perrming any duty for the defendant. The complaint is drafted under 1 Civ. Code S. C. 1902, § 2135, and Iso contains as a second cause of action a charge that the injury was he result of the negligence of the defendant. The statute referred to reads as follows:

“Every railroad corporation shall be responsible in damages to any person or corporation whose buildings or other property may be injured by fire communicated by its locomotive engines, or originating within the limits of the right of way of said road in cousequence of the act of any of its authorized agents or employees, except in any case where property shall have been placed ou the right of way of such corporation unlawfully or without its consent, and shall have an insurable interest in property upon its route for which it could be so held responsible and may procure insurance thereon in its own behalf.”

The assignments of error, in so far as they are now material, are based on the refusal of the trial court to direct a verdict and on the refusal to give certain instructions based on the theory that Ayres was not in the employment of the defendant at night after working hours. We regard the language of the statute, “its authorized agents” as being, so far as we are now concerned, synonymous with “employés." There was evidence tending to show that Ayres was drunk and also evidence tending to show that he in some way turned the lamp over. The one question for discussion is whether or not Ayres was at the time the fire was started an employé within the meaning of the statute.

So far as we are advised the Supreme Court of South Carolina has never ascribed to this statute any purpose other than to relieve one complaining of injury from fire originating on a railroad company's right of way of the necessity of proving negligence. Thompson v. Railway Co., 24 S. C. 369. It seems to have been repeatedly held by that court that this statute is to be strictly construed. Rogers v. Railroad Co., 31 S. C. 378, 9 S. E. 1059; Hunter v. Railroad Co., 41 S. C. 86, 19 S. E. 197; Lipfield v. Railroad Co., 41 S. C. 385, 19 S. E. 197. In 1 Sherman & Redfield Negligence, $ 117, it is said:

"In determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act is done while the servant is at liberty from service and pursuing his own ends exclusively, there can be no question of the master's freedom from all respousibility, even though


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