Opinion of the Court.

the less, on that account, the act of the Common Pleas. As such, it was, when rendered, open to review by the Supreme Court, and for that reason is not the final judgment of the highest court in the State in which a decision in the suit could be had. Rev. Stat. § 709. The writ is dismissed." See also Bostwick v. Brinkerhoff, 106 U. S. 3; Rice v. Sanger, 144 U. S. 197; Rutland Railroad v. Central Vermont Railroad, 159 U. S. 630, 638; Sanford Co., petitioner, 160 U. S. 247.

In the case at bar, it was argued in support of the jurisdiction of this court that, if an appeal had been taken from the final judgment of the inferior court to the Supreme Court of Wisconsin, that court, according to its uniform course of decisions, would have affirmed the judgment, upon the ground that its decision upon the first appeal was conclusive; that this court, according to the decision in Northern Pacific Railroad v. Ellis, 144 U. S. 458, would not take jurisdiction of a writ of error to review a judgment based upon that ground only; and consequently that a writ of error from this court to the inferior court was the only way in which the decision of that court, refusing full faith and credit to the judicial proceeding in Illinois, could be reviewed by this court.

If all this were so, there would be strong ground for sustaining the present writ of error. Wheeling & Belmont Bridge v. Wheeling Bridge, 138 U. S. 287, 290; Luxton v. North River Bridge, 147 U. S. 337, 342. But the argument is based upon a misconception of the decisions supposed to support it.

It is true that the Supreme Court of Wisconsin, upon second appeal from an inferior court, has always declined to reconsider any question of law decided upon the first appeal. Downer v. Cross, 2 Wisconsin, 371, 381; Noonan v. Orton, 27 Wisconsin, 300; Du Pont v. Davis, 35 Wisconsin, 631; Lathrop v. Knapp, 37 Wisconsin, 307; Oshkosh Fire Department v. Tuttle, 50 Wisconsin, 552. It does not, however, as appears by the two cases last cited, when that question is the only one presented by the second appeal, dismiss that appeal for want of jurisdiction; but it entertains jurisdiction, and affirms the judgment. In so doing, that court has done no more than this court has always done, or than is necessary to

Opinion of the Court.

enable an appellate court to perform its duties satisfactorily and efficiently, which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case upon any and every subsequent appeal. Washington Bridge v. Stewart, 3 How. 413, 425; Roberts v. Cooper, 20 How. 467, 481; Clark v. Keith, 106 U. S. 464; Chaffin v. Taylor, 116 U. S. 567; Sanford Co., petitioner, 160 U. S. 247, 259.

The case of Northern Pacific Railroad v. Ellis was very peculiar in its circumstances, and was as follows: Ellis brought an action against the Northern Pacific Railroad Company, in an inferior court of the State of Wisconsin, to quiet title to land; and in his complaint set forth not only his own title, but also the title of the railroad company under a conveyance by way of donation from a county. The railroad company demurred to the complaint, the demurrer was overruled, and the company appealed to the Supreme Court of Wisconsin, which held the conveyance to be void for want of power in the county under the constitution of the state, and therefore, without any Federal question being presented or considered, affirmed the order overruling the demurrer, and remanded the case to the inferior court for further proceedings. 77 Wisconsin, 114. The railroad company then filed an answer, reasserting its title under the deed from the county; and afterwards applied for leave to file a supplemental answer, setting up a decree which, since the decision of the Supreme Court of the State, had been rendered by the Circuit Court of the United States in a suit commenced, after the former order of the inferior court, by the railroad company against Ellis. and others, by which judgment the title of the railroad company in other lands held under the same conveyance was adjudged to be valid. The inferior court of the State denied leave to file the supplemental answer, and, upon a hearing, rendered final judgment against the railroad company. The company again appealed to the Supreme Court of the State, which affirmed the judgment, upon the ground that its own decision upon the demurrer as to the validity of the title of the railroad company was res adjudicata, and could not, accord

Opinion of the Court.

ing to the settled law of the State, be reviewed by the inferior court, or even by the Supreme Court of the State, save upon motion for rehearing. 80 Wisconsin, 459, 465. The only right under the laws of the United States, suggested or considered at any stage of the proceedings in the courts of the State, was the claim that the decree of the Circuit Court of the United States, rendered after the decision of the Supreme Court of the State upon the first appeal, estopped Ellis to deny the validity of the conveyance from the county to the railroad company. The only decision made by the Supreme Court of the State upon that claim was that the invalidity of that conveyance had been finally adjudged, for the purposes of the suit, by its former decision, and therefore the decree of the Circuit Court of the United States should not be permitted to be pleaded by supplemental answer, in the nature of a plea puis darrein continuance. This court, in dismissing the writ of error to the Supreme Court of the State, dealt with no other question; 144 U. S. 458; and never considered the right of the railroad company, merely by virtue of its charter from the United States, to take land by such a conveyance, until that subject was brought into judgment upon the subsequent appeal from the decree of the Circuit Court of the United States. Roberts v. Northern Pacific Railroad, 158 U. S. 1, 25, 27.

There is nothing in the decisions above cited, or in any other decision of this court, which countenances the position that in Wisconsin, or in any other State, when the highest court of the State, upon a first appeal, decides a Federal question against the appellant, and remands the case to the inferior court, not merely to carry the judgment into execution, but for further proceedings according to law, and upon further hearing the inferior court renders final judgment against him, he can have that judgment reviewed by this court by writ of error, without first appealing from it to the highest court of the State, or at least, where such is the practice, presenting a petition to that court for leave to appeal. Fisher v. Perkins, 122 U. S. 522.

In the case at bar, as in McComb v. Knox County Commis

Syllabus.

sioners, above cited, the final judgment of the inferior court of the State may have been the necessary result of the previous decision by the Supreme Court of the questions presented for its determination; but it was none the less, on that account, a judgment of the inferior court. As such, it was, when rendered, open to review by the Supreme Court upon a new appeal; and, for that reason, was not the final judgment of the highest court of the State in which a decision in the suit could be had.

Writ of error dismissed for want of jurisdiction.

NORTHERN PACIFIC RAILROAD COMPANY v. PETERSON.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH

CIRCUIT.

No. 153. Argued and submitted March 18, 1896. — Decided April 13, 1896.

H. was foreman of an extra gang of laborers for plaintiff in error on its road, and as such had charge of and superintended the gang in putting in ties and assisting in keeping in repair three sections of the road. He had power to hire and discharge the hands, (13 in number,) in the gang, and had exclusive charge of their direction and management in all matters connected with their employment. The defendant in error was one of that gang, hired by H., and subject, as a laborer, while on duty with the gang, to his authority. While on such duty the defendant in error suffered serious injury through the alleged negligence of H., acting as foreman in the course of his employment, and sued the railroad company to recover damages for those injuries. Held, that H. was not such a superintendent of a separate department, nor in control of such a distinct branch of the work of the company, as would be necessary to render it liable to a co-employé for his neglect; but that he was a fellow-workman, in fact as well as in law, whose negligence entailed no such liability on the company as was sought to be enforced in this action.

The duties of a railroad company, as master, towards its employés, as servants, defined; and it is held that if the master, instead of personally performing these obligations, engages another to do them for him, he is liable for the neglect of that other, which, in such case, is not the neglect of a fellow-servant, but of the master.

The previous cases in this court on this subject examined, and found to deter

Statement of the Case.

mine the following points, as to the liability of a railroad company for injuries to an employé alleged to have been caused by the negligence of another employé, while the injured person was in the performance of his ordinary duties:

(1) That the mere superiority of the negligent employé in position and in the power to give orders to subordinates is not a ground for such liability;

(2) That in order to form an exception to the general law of non liability, the person whose neglect caused the injury must be one who was clothed with the control and management of a distinct department, and not of a mere separate piece of work in one of the branches of service in a department;

(3) That when the business of the master is of such great and diversified extent that it naturally and necessarily separates itself into departments of service, the persons placed by the master in charge of these separate branches and departments, and given control therein, may be considered, with reference to employés under them, viceprincipals and representatives of the master as fully as if the entire business of the master were placed by him under one superintendent.

There is no proof of a separate contract of hiring, by which the railroad company assumed obligations towards the defendant in error in excess of those ordinarily assumed by a company towards those employed by it as laborers.

THIS action was commenced by the plaintiff below (defendant in error) in the United States Circuit Court for the District of Minnesota, Fourth Division, to recover damages against the defendant alleged to have been sustained on account of its negligence. The plaintiff was in the service of the corporation when the injury was sustained.

The defendant denied any negligence, and set up that whatever injury plaintiff below sustained was caused by his own neglect and carelessness.

The case came to trial and evidence tending to show the following facts was given: The plaintiff was a day laborer, and he and several others in July, 1890, were at a place called Old Superior, a station on the line of the defendant's road. They had been working on the road at that point, but work becoming scarce they had applied to one Mongavin, who was a roadmaster of the defendant and at that time stationed at Old Superior, for employment. Mongavin told them he had no more work for them there, but he would send them up to