Evans v. Louisville, New Orleans & Texas Railway Co.

Campbell, C. J., delivered the opinion of the court. The question presented is, has the plaintiff a right to recover for the injury sustained because of the negligence of-the engineer, by reason of the change made in our law by § 193 of the constitution of 1890 ? The plaintiff' was a brakeman, and was injured by the negligence of the engineer, who had signaled for brakes, and, while they were being applied in pursuance of the signal, caused a movement of the train, [530] without proper warning, whereby the plaintiff was hurt. It was not designed by the constitution to abrogate the rule of law applicable to fellow-servants in a common employment, but to modify it as expressed in § 193; aud unless this case falls within the specifications of that section, there can be no recovery. The claim is that the engineer was the superior agent or officer, or person having the right to control or direct the services of the party injured. This is not predicable of the relation between the engineer and brakeman, in the performance of the ordinai-y duties prescribed for them respectively by the rules of the company, and the nature of the service. As to these the relation of superior and subordinate does not exist, but they are co-equal — co-ordinate co-operators, each with a part to perform, like different members of the human body, each with appropriate functions, some of greater or less honor, it may be, but all necessary co-efficients in the complete whole. Neither can say to the other, “ I have no need of thee,” or claim superiority or right to control or direct the services of the other in obeying the rules prescribed for and obligatory on all alike. Their relation is correlative. They have reciprocal duties, in enforcing the rules of the common superior for the successful operation of the train, and superiority or right to control, in the sense of the constitution, cannot be affirmed of them. The constitutional provision has reference to a superior agent or officer, of the sort well known as such, and any other person in the company’s service, by whatever name, who may be intrusted with the right to control and direct the services of others, according to his discretion and judgment — one to whom is committed the direction or control of others, for the accomplishment of some end dependent on his independent orders, born of the occasion, sprung from him as director, and not consisting of the mere execution of routine duties in pursuance of fixed rules by various employes, each charged with certain parts in the general performance. It may be that under some circumstances the engineer may be the superior of the brakeman, in [531] the meaning of the constitution, but in the operation of the train, in accordance with rules, one is no more superior than the other, and they are not within the rule established by the constitution. To hold that they are, would, by interpretation,. so enlarge the constitutional provision as to sweep away entirely the rule as to fellow-servants as existing before, in the face of the incontrovertible fact that the purpose of the framers of the constitution was, not to abrogate, but to modify to a certain extent, carefully expressed in § 193: Even with our view, there is not much of the formerly existing rule left, and if the engineer and brakemen ón a train, in the execution of their ordinary functions, as prescribed for them, are not subject to its operation, we do not know to whom or in what case it could apply. Affirmed.