Grady v. Southern Ry. Co.

TART, Circuit Judge. The judgment of the circuit court must be affirmed. The evidence leaves no ground whatever for the contention that a reasonable rule had not been adopted by the defendant company for the notification of every one engaged in and about the cars standing upon the repair tracks that they were about to be moved. The system of notice was that of personal notice to every employé engaged in and about the cars. It is true that the rale was not printed, but that it was a well-recognized rale is conclusively shown by the evidence, without a single contradiction. The necessity for written or'printed rides is that the course of conduct maybe definitely prescribed, and may be-more certainly brought, to the attention of every person having to enforce or execute the rules, or to rely upon their execution. In this case the person charged with the execution of the rule testified that he did give the notice, and also testified to his knowledge of the rule. The plaintiff, whose right it was to rely upon the rule, testified in the most explicit terms that there vas such a rule, and that it had been constantly observed until his injury. The failure to print the rule therefore could in no way have contributed to the injury here complained of. The charge of [493] negligence based upon the absence of a sufficient rule therefore fails for ut ter lack of evidence. The second ground urged for reversal is the negligence of the foreman or assistant foreman, or some man selected by them, in failing' to comply with the rule in this particular instance. It is said that this question ought to have been left to the jury. The foreman who hud charge of moving the cars was a foreman in the freight-car repair-sheds, and, even if we assume that it was his negligence in this particular instance which caused the accident, we should still be obliged to find, under the decision of the supreme court of the United Slates, that he oidy was a. fellow servant of the plain (iff, and that his negligence in this instance was not the negligence of the company. He was not at the head of a distinct department. He was at the head of one of the many branches (to wit, the freight-repair branch) of a distinct department (to wit, the mechanical department). In the case of Mining Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40, the question was whether the defendant mining company was liable to one of its employes for injury suffered through the negligence of another of its employés, named Finley. The defendant introduced evidence, which was uncontradicted, that its business was under the control of a general manager, and was divided into three deparimeets, the mine, the mill, and the chlorination works, each of which departments had a foreman or superintendent under the general manager; that the mine department had three shifts or gangs of workmen, two by day. and one at night; and that Finley was boss of the one at nighi. Tin; jury had returned a verdict, for the plaintiff in the circuit, and a judgment entered thereon was affirmed in the court of appeals for the "Ninth circuit. The judgment, of the circuit court, of appeals was; reversed by the supreme conk. Sir. Justice Gray, delivering the opinion, said: “Finley was not a vice principal or representative of the corporation. lie was not'the general manager of its business, or (he superintendent of any department of that business. But he was merely the foreman or boss of tlie particular gang of men to which the plaintiff belonged. Whether he had or had not authority to engage and discharge the men under 1dm is immaterial. Even if lie had such authority, he was none the less a fellow servant with them, employed in the same department oí business, and under a common head. There was no evidence that he was an unsuitable person for his place, or that the machinery was imperfect or defective for its purpose. The negligence, if any, was his own negligence in using the machinery, or in giving orders to the men. The case is governed by a series of recent decisions of this court, indistinguishable in their facts from this one. Railroad v. Keegan, 160 U. S. 259, 18 Sup. Ct 289; Railroad v. Charleas, 162 U. S. 359, 10 Sup. Ct. 848; Same v. Peterson, 162 U. S. 346, 16 Sup. Ct. 343; Martin v. Railroad, 180 U. S. 399, 17 Sup. Ct. 603. See, also, Wilson v. Merry, L. R. 1 H. L. Sc. 326.” In addition to the eases cited by the learned justice, reference may also be made to Martin v. Railroad, 166 U. S. 398, 17 Sup. Ct. 603, Railroad Co. v. Baugh, 149 U. S. 369, 13 Sup. Ct. 914, and to Steamship Co. v. Merchant, 333 U. S. 375, 10 Sup. Ct. 397. It seems to us very clear that the duties of the foreman in this case were not those of a superintendent in a department of the railroad company, such that the foreman of it could be regarded as a vice principal. It is [494] useless to elaborate the discussion upon this point, because the question is to be determined by the decisions of the supreme court, and! not by the general discussion of public policy. The Baugh Case has set such limits to the vice-principal doctrine that it is exceedingly difficult to suggest a position, outside of the superintendent or acting superintendent of the various great departments of the road, which will not be filled by fellow servants of all the other employés. The Ross Case, 112 U. S. 377, 5 Sup. Ct. 184, it is said, has never been expressly overruled. This is true, but it has been so limited to its peculiar facts as to make it of no force as authority in any case where those facts are not exactly presented. The assumption that the accident was due to the foreman of the car shed has, moreover, little, if any, evidence to support it. If there was negligence in this regard, it was in all probability the negligence either of the assistant foreman, or of some workman selected and directed to give the usual alarm. Clearly, the neglect of either would be that of a fellow servant. These views lead to an affirm^ anee of the judgment.