Opinion of the Court.

First. We think it was error to submit to the jury the question of the negligence of the employés on the extra freight train in failing to give the signals of its approach. This failure, assuming that it constituted negligence, was nothing more than the negligence of co-servants of the plaintiff below in performing the duty devolving upon them. The principle which covers the facts of this case was laid down in Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, and that case has never been overruled or questioned. The Ross case, 112 U. S. 377, is a different case, and was decided upon its own peculiar facts. See Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368, 380. Among the latest expressions of opinion of this court in regard to views similar to those stated in the case in 109 U. S., (supra,) is the case of the Northern Pacific Railroad Company v. Hambly, 154 U. S. 349. It seems to us that the Randall and the Hambly cases are conclusive, and necessitate a reversal of this judgment. In the Hambly case it was held that a common day laborer in the employ of a railroad company, who, while working for the company, under the orders and direction of a section boss or foreman on a culvert on the line of the company's road, received an injury through the negligence of a conductor and of an engineer in moving a particular passenger train upon the company's road, was a fellow-servant with such engineer and with such conductor in such a sense as exempts the railroad company from liability for the injury so inflicted. We are unable to distinguish any difference in principle arising from the facts in these two cases.

The question of the negligence of the hands upon the extra freight train should not have been submitted to the jury as constituting any right to a recovery against the corporation on the ground of such negligence.

Second. We also regard it as erroneous to have submitted to the jury the general question whether Kirk, the section foreman, was negligent in running his hand car at too high a speed just prior to the accident. Kirk and the plaintiff below were co-employés of the company, and the neglect of Kirk, if it existed, in driving his hand car too fast (assuming it was

Opinion of the Court.

in proper condition) was not such negligence as would render the company responsible to Kirk's co-employé. It was not the neglect of any duty which the company as master was bound itself to perform. This we have held in the Peterson case, and for the reasons there stated. While it may be assumed that the master would have been liable if a defective brake had been the cause of the accident, yet, the defendant below is, under the charge of the judge, permitted to be made liable by proof of the speed of the hand car, if the jury found that Kirk the foreman knew it to be dangerous and that the accident happened because of that speed, even though it would have happened if the brake had been the regular kind and in good order. The language of the court does not separate the question of general negligence in running a hand car which was in good order too fast from that which might be negligence with reference to running a hand car with a defective brake at the same rate of speed. For using in a negligent manner a defective appliance furnished by the master, the latter might be liable if a co-employé were thereby and in consequence thereof injured. As the master furnished the defective appliance, it would be no answer to say that it was negligently used. But, on the other hand, the master would not be responsible for the negligent use of a proper appliance. From the language used by the court the company might have been held liable if Kirk were running the hand car at a dangerous rate of speed, although the jury found the brake actually used to have been sufficient. A dangerous rate of speed was, therefore, held to be negligence, for which the company would be liable. But it is said that the fact of a dangerous rate of speed is necessarily so mingled and intimately connected with the fact of a defective brake that it is impossible to regard the speed separate and distinct from the defect, so that when the question of excessive speed was submitted to the jury as a possible foundation for the finding of negligence, it was in substance and effect a submission to the jury of the question of excessive speed in the particular case of a hand car supplied with a defective brake. We think this is not an answer to the objection, and that there was error in submitting

Opinion of the Court.

the question of excessive speed to the jury in the manner in which it was done in this case. From the evidence set forth in the record it is clear that the jury might have taken the view that the temporary brake was, while it lasted, as adequate for the purpose as any other, but that the hand car, assuming it was in good order, was negligently run at a dangerous rate of speed so that it could not have been stopped in time, even if it had been supplied with a regular brake. In that event, under the judge's charge, the jury might have held the company responsible for the mere negligence of the foreman Kirk in running a hand car adequately supplied at a dangerous rate of speed. That neglect, we hold, the company was not responsible for.

Upon the other question of the negligence of the employés on the freight train, the error in the charge is not rendered harmless by any explanation given by the learned judge. The difficulty remains uncured. The jury might have found from the evidence that this hand car while going at the rate of speed stated could have been stopped with the extemporized brake, in time to prevent any danger of a collision, in case the proper signals had been given by the hands on the freight train, but that the accident resulted from their failure to give those sig nals, and that such failure was negligence on their part. The verdict may have been based upon such negligence. We hold the company was not liable for the negligence of the hands on the freight train in failing to give proper signals.

These two important and material errors on the part of the learned judge who tried the cause, in his charge to the jury, having never been remedied or in any manner cured, we are compelled to sustain the exceptions taken to such charge.

The judgment entered upon the verdict of the jury must be Reversed, and the cause remanded with instructions to grant a new trial.

The CHIEF JUSTICE and MR. JUSTICE FIELD and MR. JUSTICE HARLAN dissented.

Statement of the Case.

NORTHERN PACIFIC RAILROAD COMPANY v.

LEWIS.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIR

A person who, without authority, cuts wood from public lands of the United States, not mineral, or purchases such wood so cut, and leaves it, when cut or purchased, upon such public lands near a railroad, has no right of possession of, or title to, or ownership in it, and cannot maintain an action against the corporation owning such railroad for its destruction by fire caused by sparks from locomotives of the company.

THIS action was brought by the defendants in error against the railroad company to recover damages for the destruction. of some 10,000 cords of wood by fire communicated to the wood by sparks from the engines of the company.

It was alleged in the amended complaint that the railroad company neglected and failed, for a long time prior to the happening of the fire, and while using and operating their railroad, to keep each side of the railroad track free from dead grass, weeds, brush and other dangerous and combustible material, as by law they were required to do, and that the company used locomotives which threw from their smokestacks large amounts of live cinders and sparks, and that the company carelessly and negligently operated and used its road, and by reason thereof, and on the 5th day of August, 1890, in Jefferson County, Montana, set fire to the grass, weeds and other combustible and dangerous material, which the defendant had negligently and carelessly allowed to remain by the side of the track, and the fire spread rapidly and consumed and destroyed the cord wood belonging to the plaintiffs, as partners, then being in Jefferson County, Montana, and along and near the railroad track, of the amount of 9400 cords, and of the value of $25,350.

The defendant by its answer denied all negligence, and denied "that on or about the date aforesaid, or on any other

Statement of the Case.

day or date, the defendant set any fire which consumed or destroyed any cord wood belonging to the plaintiffs or any or either of them." The defendant also put in issue the value of the cord wood, and alleged that whatever was lost was lost through the contributory negligence of the plaintiffs.

The case came on for trial at the Circuit Court of the United States for the Ninth Circuit, for the District of Montana, held in December, 1891, and January, 1892, and resulted in a verdict for the plaintiffs for the sum of $21,487.83. The company sued out a writ of error from the United States Circuit Court of Appeals for the Ninth Circuit, and that court affirmed the judgment. 7 U. S. App. 254. The company then sued out a writ of error from this court.

Upon the trial of the action the plaintiffs to maintain the issues on their part introduced evidence tending to show that in the month of April, in the year 1889, they entered upon a portion of the unsurveyed public domain of the United States, lying on the easterly slope of the Rocky Mountains, in the county of Jefferson, State of Montana, and there chopped and caused to be chopped about 10,000 cords of wood from the timber then standing and growing upon such public lands; that the wood was cut over an area of country of about three miles, north and south, and about two by two and a half miles, east and west; that the wood so cut was white pine, and much of it was made of trees of less diameter than eight inches. The plaintiffs also gave evidence that they were citizens of the United States, and that the plaintiff, George S. Lewis, at the date of the cutting of said wood, was a resident of Butte, Montana, and that the other plaintiffs resided at White Sulphur Springs in the State of Montana. It was further shown that after the wood was cut it was drawn to a point near the railroad and there piled. That the place where the wood was so piled was on the unsurveyed public lands of the United States and about 200 yards south of the railroad operated by the defendant.

Plaintiffs also gave evidence tending to show that they had purchased from various parties during the summer of 1890 about 5000 cords of white pine cord wood, which had also