petent employé, and that his injuries were the direct result of his incompetency, in that Lavelle recklessly ran the engine at a dangerous rate of speed down a mountain grade, and while so running the engine and caboose jumped the track, and injured the plaintiff; (2) that the triple valve of the caboose was defective and out of order, and it was, therefore, impossible for him to use the air brake for the purpose of stopping the rapidly running train."

At the close of the evidence the defendant below requested an instruction to the jury to find for the defendant, which request was refused. From an adverse verdict and judgment this writ of error was sued out.

The only error assigned is the refusal to give the general charge, and in the assignments of error the following reasons why it should have been granted are given:

"That the proof showed that plaintiff was injured through the negligence of one Lavelle, a fellow servant of plaintiff; that the issue made by plaintiff, and the theory upon which said suit was tried was that defendant had notice of the incompetency of said Lavelle by reason of his general reputation among the employés of defendant, whereas such general reputation among the employés of defendant, if sufficient to bring notice to the officers of defendant, was sufficient to bring notice to the plaintiff in this suit, who was working with said Lavelle as the conductor on the train of which Lavelle was the engineer, plaintiff having failed to either allege or prove that he did not know of the incompetency of said Lavelle, or of his reputation, at the time he went out with said Lavelle upon the trip in which said accident occurred." "That the negligence of said engineer, Lavelle, in operating his train rapidly was the proximate cause of plaintiff's injury, and the condition of the triple valve on plaintiff's caboose was a matter and thing too remote and disconnected from the cause of the accident to warrant a recovery on that account, under the proof in this case; and for the reason that the insufficiency of said triple valve and the air-brake appliance on the caboose wherein plaintiff was riding had been for a long time, to wit. for 10 or 12 days before the accident, as shown by plaintiff's evidence, and was at the time of the accident in which plaintiff was injured, out of repair; and that plaintiff had repeatedly given notice of the condition of said triple valve, and the employés of defendant had had ample time to fix the same, but had failed to do so, and plaintiff knew at the time he went out on said run and was injured that said triple valve had not been repaired; and therefore plaintiff assumed the risk of injury by reason of the condition of said triple valve." "That under the facts and pleadings presented by plaintiff herein, the same showing that plaintiff assumed the risk of damage and injury occurring through the negligence of said Lavelle by not reporting said Lavelle to defendant as incompetent, plaintiff being charged with notice of his incompetency through the general reputation that he himself proved and showed existed, and that plaintiff also assumed the risk of injury on account of the triple valve and its condition, for the reason, as pleaded by him, and as shown by testimony offered by plaintiff, said triple valve had been out of order for a number of days, and was reported by him a number of times: that defendant had sufficient time and opportunity to repair the same, and that plaintiff knew at the time of said run that said valve had not been repaired."

In the foregoing reasons it is assumed that the incompetency of Lavelle was the sole cause of the disaster; that such incompetency was previously brought to the attention of the railway company only through Lavelle's general reputation among the railway employés; that the plaintiff below was charged with knowledge of Lavelle's incompetency through said general reputation, and, as he did not report him to the railway company as incompetent, he thereby assumed all risks of damage and injury occurring through the negli

gence of Lavelle; that the insufficiency of the triple valve and the air-brake appliance on the caboose was too remote a cause to have any effect on the disaster; and that, as the plaintiff below knew, at the time he went on the run and was injured, that the promises to repair the valve had not been carried out, he assumed all risks in relation thereto. None of these assumptions are well-founded. The plaintiff, in his petition, charged that Lavelle was incompetent, careless, and reckless, and that the fact was known to the railway company, or might have been known by the use of reasonable diligence, and that the same was not known to the plaintiff. Under this issue the competency of Lavelle was contested, and, while the plaintiff below put on three witnesses who swore that he was incompetent, and that his general reputation was bad, the defendant railway company put on six witnesses, who, in the main, testified that he was a competent engineer, and that his general reputation was good. The plaintiff below also offered evidence tending to show that Lavelle had been laid off by the railway company for drunkenness, and that his incompetency in that respect had been directly reported to the superior officers of the railway company; and this was contested by counter evidence. There was evidence tending to show that the plaintiff below did not know that Lavelle was incompetent in fact, or had that general reputation. Much evidence was adduced pro and con as to the defects of the triple valve, and its value and use, and the use of the air-brake appliances in connection with stopping trains, and bearing on the question of neglect of the railway company in not keeping the said valve and appliances in working order. The court below properly declined to assume that all these disputed matters were established by undisputed evidence, and to resolve them so as to fit in and harmonize with one aspect of the railway company's defense. The case was properly submitted to the jury, and the judgment of the circuit court is affirmed.

(108 Fed. 934.)

LOUISVILLE & N. R. CO. v. STUBER.

(Circuit Court of Appeals, Sixth Circuit. May 7, 1901.)

No. 881.

1. MASTER AND SERVANT-NEGLIGENCE OF FELLOW SERVANT.

The general rule is that a master is not liable for an injury sustained by one servant through the negligence of another in the same general service, in the absence of negligence of the master in respect to those duties which he is universally regarded as having assumed toward his servants, such as the obligation to exercise care in the selection of those to be associated with him, or of a place to carry on his work, and proper tools or materials with which he is to do it; and there is no sanction in the controlling authorities for taking a case out of the general rule of nonliability for the negligent acts of another servant by refined distinctions as to who are fellow servants based upon the subordination of one servant to another or upon the circumstance that two servants are engaged in different departments of a common service.

2. SAME-INJURY OF SERVANT.

The principle underlying those decisions which hold a master liable to a servant for the negligent acts of another servant in a separate and distinct department of the service is that a servant only assumes the risk from the negligence of those so closely associated with him that he is presumed to have contracted with reference to such risk; and where the duties of an employé are such that he is constantly subjected to risk of injury from the negligence of other employés, although in a different department; such principle does not apply, but as to him such other employés are fellow servants, within the rule which exempts the master from liability for their negligence resulting in his injury.

8. SAME RAILROAD EMPLOYES-TRAINMEN AND EMPLOYES RIDING IN COURSE OF DUTY.

Plaintiff was foreman of water supply on a division of defendant's railroad, his business being to supervise the tanks and pumping machinery at the water stations on such division, and to keep the same in repair. In the performance of his duties he was required to ride over the road from station to station, and was furnished with a pass good on all trains. While so riding on a detached engine to a station where his services were required, he was injured in a collision caused by the negligence of the engineer in charge of such engine. Held, that he was not a passenger, but was a fellow servant of the engineer, for whose negligence causing his injury defendant was not liable.1

In Error to the Circuit Court of the United States for the Western District of Tennessee.

John W. Judd, for plaintiff in error.

J. N. Thomason, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and CLARK, District Judge.

LURTON, Circuit Judge. The defendant in error, William Stuber, sustained a severe injury through the negligence of an engineer in charge of a detached engine upon which he was riding. Both the engineer and Stuber were at the time in the service of the railroad company. There was a judgment upon a verdict for defendant in error. 102 Fed. 421.

This case turns upon the single question as to whether the negligent engineer and Stuber were fellow servants. The facts were undisputed, and were as follows: Stuber for many years had been the "foreman of water supply" upon an extensive division of the railroad of the plaintiff in error, receiving $80 per month. His business was to supervise the water tanks and pumping machinery at the many water stations within his division, keeping same in good repair, and in condition to furnish water for the proper movement of trains. In the discharge of his duties he was obliged to pass frequently from one water station to another, and was authorized by a superintendent's order or pass to travel free upon any and all trains, and to stop them, when necessary, at any tank. To answer a call to repair the pumping machinery at Humboldt, Tenn., Stuber boarded a detached locomotive at Guthrie, Ky., bound down. the road. Through the negligence of the engineer in sole control of this engine, a collision occurred at Clarksville, Tenn., with a

1 Injuries to servant while not on duty, see note to Ellsworth v. Metheney, 44 C. C. A. 489.

train, whereby Stuber sustained a severe personal injury. The learned circuit judge was of opinion that the relation of fellow servant did not exist between defendant in error and the engineer, through whose negligence he had been injured, and instructed the jury to return a verdict against the plaintiff in error. A request to instruct the jury to find for the railroad company upon the ground that the engineer and Stuber were fellow servants was denied. The charge given and the request denied have been assigned as error. There is no statute in Tennessee defining fellow servants. The question is, therefore, one to be determined upon common-law principles. Under the decisions of the Tennessee supreme court, the liability of a railroad company to one servant who has sustained injury through the negligence of another has been made to depend upon the subordination of the one to the other, as well as upon refinements in respect to different departments of service. Railroad Co. v. Carroll, 6 Heisk. 347, 364; Railroad Co. v. Bowler, 9 Heisk. 866; Railroad Co. v. Lahr, 86 Tenn. 335, 6 S. W. 663; Mining Co. v. Davis, 90 Tenn. 711, 719, 18 S. W. 387; Railroad Co. v. De Armond, 86 Tenn. 73, 5 S. W. 600, 6 Am. St. Rep. 816; Railroad Co. v. Martin, 87 Tenn. 398, 10 S. W. 772, 3 L. R. A. 282. The question is, however, not one of local law to be settled by the decisions of the highest courts of the state in which the cause of action arose, but one of general law. So far as the supreme court of the United States has authoritatively determined the law applicable to such a case, it is the duty of this court to follow the law thus determined. But, so far as the question has not been thus authoritatively settled by that court, the common law applicable is to be determined by a consideration of all the authorities bearing upon the relation of master and servant. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772. There is no authority for regarding Stuber, while being carried to his work by his employer, as a passenger. To discharge the duties of his peculiar employment, it was necessary that he should be carried from one place of work to another, as occasion should require. His transportation to and from his work was part of his contract of service, and while being thus transported he was as much in the service of the company as when engaged in the repair or construction of a water tank or pump. He was traveling at the time under a single contract of service, and his right to be carried free to and from his work is inseparable from the contract to do the work, and no valid ground exists for saying that he paid his own fare, or was in any sense a passenger.

The rule is now well settled that railway employés, while being carried, as part of their contract of service, to and from their place of work, are fellow servants, and not passengers. Thus, in Gillshannon v. Railroad Corp., 10 Cush. 228, laborers being carried to and from their work upon a gravel train were held not to be passengers, but fellow servants of those operating the train. In Seaver v. Railroad Co., 14 Gray, 466, a carpenter, whose business it was to repair bridges and fences along the line of railroad, injured while being carried free to a place of work, was held to be a fellow servant, and not a passenger. In Ryan v. Railroad Co., 23 Pa. 384, a laborer on

a gravel train was injured through the negligence of the conductor or engineer while being carried from his residence to his place of work. Held, that there could be no recovery. In McQueen v. Railway Co., 30 Kan. 689, 1 Pac. 139, a bridge painter, while being transported over the road to discharge the duties of his place, was held not to be a passenger. In Railroad Co. v. Smith, 14 C. C. A. 509, 67 Fed. 524, 31 L. R. A. 321, it was held that a civil engineer, charged with the duty of looking after the maintenance of bridges, trestles, and water tanks, was not a passenger when traveling over the road in discharge of his duties. In Tomlinson v. Railroad Co., 38 C. C. A. 148, 97 Fed. 252,-an opinion by the circuit court of appeals for the Eighth circuit,-it was held that a bridge builder and repairer, whose duties called him to various places on the line of the railroad company employing him, was not a passenger when being carried over the road to place of work, but a fellow servant with those operating the train to which his car was attached. To the same effect are the cases of Tunney v. Railway Co., L. R. 1 C. P. 291; Ross v. Railroad Co., 5 Hun, 488, affirmed in 74 N. Y. 617, and cited in 95 N. Y. 272; Russell v. Railroad Co., 17 N. Y. 134; Vick v. Railroad Co., 95 N. Y. 267, 47 Am. Rep. 36; Abend v. Railroad Co., 111 Ill. 203, 53 Am. Rep. 616; Kumler v. Railroad Co., 33 Ohio St. 150. On this record there can be no question as to the right of the defendant in error if he had been injured while traveling for a purpose disconnected with his employment. He was not so trav eling. The cases of Doyle v. Railroad Co., 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157; Doyle v. Railroad Co., 166 Mass. 492, 44 N. E. 611, 33 L. R. A. 844; McNulty v. Railroad Co., 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376; and State v. Western Maryland R. Co., 63 Md. 433,-are cases in which it appeared that at the time of the injury the employé was not in the service of the company, but was traveling for his own purposes, and therefore a passenger. The learned trial judge and the counsel for the defendant in error seem to place the liability of the railroad company upon the theory that only those servants engaged in the same department of the service of a common master are to be regarded as fellow servants.

Stuber, it is said, had nothing to do with the actual movement of trains or engines, and was, therefore, in a different department of service. The ground upon which those courts proceed which hold an employer liable to his servants for the negligent acts of other servants in a separate and distinct department is that the servant only accepts the risk of the negligence of those so closely associated with him as that he may be supposed to have contracted with reference to the possibility of their negligence, they coming through such association to some extent under his influence. Railroad Co. v. Carroll, 6 Heisk. 348, 362, et seq.; Shear. & R. Neg. (5th Ed.) §§ 237, 238. But under this rule it is difficult to see its application here. If Stuber had been hurt by those engaged in operating a train or locomotive while he was repairing a tank or pump on the side of the track, he might with more plausibility have urged that he could not foresee, when accepting employment, that he would be exposed to the negligence of servants operating trains. But in the