A railroad company, however, has been held liable for the negligence of a station agent who performs the duties of a train dispatcher. But a brakeman cannot maintain an action against the corporation for personal injuries caused by the making up of a train of cars, with platforms of unequal height, by the ordinary servants of the company under the direction of one of its station masters.2 And where, by reason of the negligence of a station master in the employ of a railroad, in not delivering a telegram to the en it is to see that the track is in order, is the knowledge of the company, and any neglect on his part is the neglect of the company. "This is not a case where the defect in the track results from necessary work being done in repairing the track. In such cases it becomes necessary to render the track somewhat unsafe while the repairs are going on, and it may well be said in such case, that it has done its whole duty to its employes. This is a case where the forces of nature have impaired the safety of the road. Against defects caused by these forces the company is bound to protect its employes by the exercise of due diligence in discovering the defects and guarding against them. That when the track becomes unsafe by the operation of natural forces there can be no doubt as to the duty of the company to use diligence in ascertaining the fact, and remedying it, and any neglect to do so is the neglect of the company, there would seem to be no doubt. All the cases hold this, and the point was decided against the company in the case of Stetler v. C. & N. W. R. Co., 46 Wis. 499; s. c., 49 Wis. 609. It seems to me too clear almost for argument that if a railroad company suffered its track to remain out of repair and unsafe after a freshet, which had weakened its bridges or washed away its embankments, after it could have learned of the fact by reasonable diligence, it would be liable to an employe operating a train on such road, unless it was the duty of the employe injured to see that the road was in a safe condition. The company, being under obligation to keep its road in a safe condition, is not relieved from its liability because of the neglect of its agents charged with that duty. The neglect of such agents is the neglect of the company in such case. It seems to me that it can make no difference that the track is rendered unsafe by the fact that a defect which renders the road unsafe arises from the fact that some object is blown upon the track, or whether the supports of the track are destroyed by the force of the winds or floods." 1. Palmer v. Utah & N. R. Co. (Idaho), 13 Pac. Rep. 425; an employe killed in an accident caused by defective track of which the agent had notice but failed to notify the conductor of the train. 2. Hodgkins v. Eastern R. Co., 119 Mass. 419. gineer of a passenger train having the right of way, notifying him that a switch was open, by means of which he must cross from one track to another to get around a freight train on the same track, and cautioning him as to the rate of speed, the engine was thrown from the track at the switch and the engineer killed, it was held that the injury was occasioned by the negligence of a co-employe, and no action could be maintained.1 § 138. Switchman. In a Minnesota case, Roberts v. Chicago, etc., R. Co.,2 a train ran off the track in consequence of a misplaced switch, negligently left open by a switchman, thereby causing the death of a baggage master on the train. The court held that the switch-tender and baggage master were fellowservants within the rule exempting the company from liability. And this is the general rule; the co-operation of the switchman is necessary to the successful management of the trains, and employes upon the train, in the common service, assume the risk of the negligent discharge of his duty. 3 1. Dealey v. Philadelphia, etc., R. of L.) 266; Smith v. Memphis & L. Co. (Pa.), 4 Atl. Rep. 170. 2. 33 Minn. 218. 3. Roberts v. Chicago, etc., R. Co., 33 Minn. 218; Slatterly v. Toledo, etc., R. Co., 23 Ind. 81; Robertson v. Terre Haute, etc., R. Co., 78 Ind. 79; s. c., 8 Am. & Eng. R. R. Cas. 175; Tinney v. Boston, etc., R. Co., 52 N. Y. 632; Harvey v. New York, etc., R. Co., 88 N. Y. 481 ; s. c., 8 Am. & Eng. R. R. Cas. 515; Gibson v. Northern, etc., R. Co., 22 Hun (N. Y.), 289; Gilman v. Eastern R. Co., 10 Allen (Mass.), 233; s. c., 87 Am. Dec. 635; Brown v. Central Pac. R. Co. 68 Cal., 171; Farwell v. Boston, ect., R. Co., 4 Metc. (Mass.) 49; s. c., 38 Am. Dec. 339; Bartonshill, etc., R. Co. v. Reid, 3 McQ. (H. R. Co., 18 Fed. Rep. 304: Satterly v. Morgan, 35 La. Ann. 1166; Chicago, etc., R. Co. v. Henry, 7 Ill. App. 322; Columbus, etc., R. Co. v. Troesch, 68 Ill. 545; East Tenn., etc., R. Co. v. Gurley, 12 Lea (Tenn.), 46; s. c., 17 Am. & Eng. R. R. Cas. 568; Fowler v. Chicago, etc., R. Co. 61 Wis., 159; 17 Am. & Eng. R. R. 536; Naylor v. New York Cent. R. Co., 33 Fed. Rep. 801; Harvey v. New York, etc., R. Co., 88 N. Y. 481; s. c., 8 Am. & Eng. R. R. Cas. 515; Tinney v. Boston, etc., R. Co., 62 Barb. (N. Y.) 218. But a switch tender, employed by a railroad company on a portion of its track upon which it permits another company to run trains, is not a servant of the $139. Track-men, Track-repairers and Track-walkers. The fact that a track-man is under the supervision of a roadmaster, and he in turn is under the supervision of the general superintendent, does not alter the nature of the duty which he is employed to do, viz.: to keep the track in order, so as to insure, as far as practicable, the safety of the trains continually passing over it. The question is as to the nature of the duty, not as to the rank or grade of the person employed to perform it. Is it a duty which the master owes to his servants? Nothing can be clearer than that it is the duty of a railroad company to provide a suitable and safe track over which its locomotive engineers and other servants of that class are required to run its trains, and that negligence on the part of those to whom it commits such duty is the negligence of the company.1 § 140. Train Dispatcher. According to the weight of authority, as well as the best considered cases, a train dispatcher of a railroad, who has the control of the movements of its trains and to whose orders the engineers and conductors are subject, is the representative of the company and not a fellow-servant of those engaged in operating and moving the trains, and the company is liable for an accident occurring through the negli latter; and an engineer of the latter, injured by the negligence of such switch tender, may maintain an action against the switch tender's employer. Smith v. New York, etc., R. Co., 10 N. Y. 127; s. c., 75 Am. Dec. 305. 1. Calvo v. Charlotte, etc., R. Co., 23 S. Car. 526; s. c., 55 Am. Rep. 28. See authorities collected ante § 29. A railroad company is liable to any one of its employes operating its road for the negligence of either one of its officers whose duty it is to keep the road in a reasonably safe condi tion, and who culpably fails to perform such duty or to give notice or warning thereof. Kansas City, etc., R. Co. v. Kier (Kan. 1889), 21 Pac. Rep. 770. But a laborer employed by a railroad company to remove snow and other obstructions has been held to be a fellow-servant of a track-walker who interfered with a switch with which he had no concern, whereby the laborer was injured. Fagundes v. Central Pac. R. Co. (Cal. 1889), 21 Pac. Rep. 437. gence of such train dispatcher in ordering the movement. of its engines and trains, whereby employes on such trains and engines are injured.1 This conforms entirely with the criterion laid down in this work, for the functions of a train dispatcher include one of the duties, at least, which the company owes to its employes. The Supreme Court of Pennsylvania state this point very clearly: "It is very plain that it was the duty of the defendant company, as between said company and its employes, to provide a reasonably good and safe road, and reasonably safe and good cars, locomotives and machinery for operating its road. It is equally clear that it was its duty to frame and promulgate such rules and schedules for the moving of its trains, as would afford reasonably safety to the operatives who were engaged in moving them. This is a direct, positive duty which the company owed its employes, and for the failure to perform which it would be responsible to any person in 1. Smith v. Wabash St. L. & P. R. Co., 92 Mo. 359; Lewis v. Seifert, 116 Pa. St. 628; McLeod v. Ginther, 80 Ky. 399; Phillips v. Chicago, etc., R. Co., 64 Wis. 475; s. c., 23 Am. & Eng. R. R. Cas. 453; Darrigan v. New York, etc., R. Co. 52 Conn. 285; s. c., 23 Am. & Eng. R. R. Cas. 438; Crew v. St. Louis, etc., R. Co., 20 Fed. Rep. 87; Sheehan v. New York Cent. & H. R. Co., 91 N. Y. 332; Chicago, etc., R. Co. v. McLallen, 84 Ill. 109; Crew v. St. Louis, etc., R. Co., 20 Fed. Rep. 87. The case of Robertson v. Terre Haute, etc., R. Co., 78 Ind. 77; s. c., 8 Am. & Eng. R. R. Cas. 175 is the only decision which squarely denies this rule. Here the Supreme Court of Indiana say: "The duties of the train dispatcher and the brakeman are quite distinct, but not more so than are the duties of the trackman or the switch-tender and the brake man. Safety in running trains requires the prompt and faithful discharge of the duties of all these employes. Their co-operation and combined labor relate to the same object, and are essential to the movement of trains upon the road. The mere fact that the duties of some of the employes are performed upon the train, and those of others at a particular place upon the road, does not, as claimed by the appellant, determine the question of their common employment. If the duties discharged by each relate to the same general object, they must be held to be fellow-servants. It is enough if they are employed for the purpose of effecting the same general object." See also Slater v. Jewett, 85 N. Y. 61; s. c., 5 Am. & Eng. R. R. Cas. 515. 2. Lewis v. Seifert, 116 Pa. St. 628. jured as a consequence thereof, whether such person be a passenger or an employe. It would be a monstrous doctrine to hold that a railroad company could frame such schedules as would inevitably or even probably result in collisions and loss of life. This is a personal, positive duty; and, while a corporation is compelled to act through agents, yet the agents in performing duties of this character stand in the place of and represent the principal. In other words they are vice-principals. "If it be the duty to provide schedules for the moving of its trains which shall be reasonably safe, it follows logically that when the schedules are departed from, when trains are sent out without a schedule, such orders should be issued by the company as will afford reasonable protection to the employes engaged in the running of such trains. I am not speaking now of collisions caused by a disobedience of orders on the part of conductors and engineers, but of collisions or other accidents the result of obeying such orders. At the time of the collision referred to, Wellington Bertolette was the general dispatcher of the defendant company, and from his office in Philadelphia had the general power and authority of moving the trains. In this he was not interfered with by the company or any one else. For the purpose of sending out the trains, he wielded all the power of the company. He could send a train out on schedule time or he could hold it back. He could change the schedule time or make new schedules as the exigency of the case required. He could send a train out without schedule, and direct its movements from his office in Philadelphia. When he issued an order the train was bound to move as he directed. The engineer and conductor had but one duty and that was, obedience. In Slater v. Jewett1 the late Chief Justice Folger thus clearly stated the duties of railways in this particular: 'It is urged, and with rea 1. 85. N. Y. 61. |