son, that clearly arranging and promulgating the general time table of a great railway, is the duty and the act of the master of it; and that when there is a variation from the general time table for a special occasion and purpose, it is as much the duty and act of the master, and he is as much required to perform it; that it is the duty and act of the master to see and know that his general time table is brought to the knowledge of his servants who are to square their actions to it; that the same is his duty and act as to a variation from it, which is but a special time table; and, therefore, whoever he uses to bring those time tables to the notice of his servants, he puts that person to do an act in his stead, inasmuch as the responsibility is upon him to see and know that it is done, and done effectually, and that if, instead of doing it in person, he chooses to do it through an agent, that agent, pro hac vice, is the master, and he, the master, is responsible for a negligent act therein of that agent, whereby a fellow-servant of him is harmed. This rule has been laid down in repeated cases in this court.

The Supreme Court of Connecticut1 speak as follows with reference to the relation of a train dispatcher and train hands: "It is the duty of a railroad corporation to prepare a time table and adjust the running of its trains so as to avoid collisions. It must also devise some suitable and safe method by which to run special and irregular trains, and regular trains when off their regular time. That cannot be done by general rules. Emergencies will arise which no system of rules can anticipate and provide for, in which the company must act, and act promptly and efficiently. In this case the scheme devised was to have these trains controlled by one who knew the position and movement of every train on the road liable to be affected by thema train dispatcher, acting in the name and by the authority

1. Darrigan v. New York & N. E. R. Co., 52 Conn. 285; s. c. 23 Am. &

Eng. R. R. Cas. 438.

of the superintendent. Is there not a wide and manifest difference between the duty of such an agent and the duty of a locomotive engineer? The duty of the former pertains to management and direction; that of the latter to obedience. It is immaterial that these men are hired and paid by a common employer, and that their employment is designed to accomplish one common result. The

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train dispatcher, then, in respect to the matter of moving these trains was supreme. The whole power of the corporation whose duty it was to move them safely was delegated to him. He was the agent through whom the corporation attempted to perform its duty. He acted in its name, by its authority and in its stead. The engineer was bound to obey his order. Disobedience or deviation would have been subversive of order and discipline, destructive in its consequences, and just cause for immediate dismissal. He received an order to go west from Waterbury on a single track road at a time when another train was approaching Waterbury from the west. The order was imperative and it required of him explicit obedience. He obeyed. He did not then know the consequences, but the company did or should have known. He conformed to the order as he was bound to; and while so conforming, and as the direct consequence thereof, he was injured. Reason, justice and law require that the company should be held responsible."

In California it has been held that a track repairer injured through the negligence of a train dispatcher in sending out a train may recover against the company;1 and in Idaho it has been decided that a carpenter in the employ of a railroad company, who was killed while riding on one of the company's trains, in an accident caused by a broken rail, of which the train dispatcher had notice but failed to

1. McKune v. California So. R. R. R. Cas. 589.

Co., 66 Cal. 302; s. c., 17 Am. & Eng.

notify the conductor of the train, was not a fellow-servant of such dispatcher.1

§ 141. Train Hands.

In many of the cases the offending employes are not designated otherwise than by the appellation of "train hands." Except in those States where the conductor or the engineer, by reason of their superiority, are held to represent the company, the employes engaged in operating trains are considered as fellow-servants, both of other employes on the train and employes run over or injured in a collision. Thus, where a person in the employ of a railroad company travels back and forth from his home to the place where his services are rendered, upon the cars of the company, and his transportation free of charge, constitutes part of the contract of service, while so traveling he is an employe, not a passenger, and for an injury to him through the negligence of the train hands, the company is not liable, they being his fellow-servants. A baggageman, in1. Palmer v. Utah & N. R. Co. Ind. 366; s. c., 74 Am. Dec. 259; (Idaho), 13 Pac. Rep. 425. Abend v. Terre Haute & I. R. Co., 111 Ill. 202; s. c., 17 Am. & Eng. R. R. Cas. 614.

2. Howland v. Milwaukee, etc., R. Co., 54 Wis. 226; s. c., 5 Am. & Eng. R. R. Cas. 578; Ross v. New York, etc., R. Co., 74 N. Y. 617; Tunney v. Midland, etc., R. Co., L. R. 1, C. P. 291; Kansas, etc., R. Co. v. Salmon, 11 Kan. 83; Capper v. Louisville, etc., R. Co., 103 Ind. 305; s. c., 21 Am. & Eng. R. R. Cas. 525; Gillshannon v. Stony Brook, etc., R. Co., 10 Cush. (Mass.) 228; Seaver v. Boston, etc., R. Co., 14 Gray (Mass.) 466; Dallas v. Gulf, etc., R. Co., 61 Tex. 196; Russell v. Hudson, etc., R. Co., 17 N. Y. 134, reversing s. c. 5 Duer, (N. Y.) 39; Vick v. New York, etc., R. Co., 95 N. Y. 267; s. c., 17 Am. & Eng. R. R. Cas. 609; Manville v. Cleveland, etc., R. Co., 11 Ohio St. 417; Ohio & M. R. Co. v. Tindall, 13

2

In a Maryland case, however, it appeared that plaintiff intestate was hired from day to day as a brakeman, running between X. and Y. every day except Sunday, for which day he was not paid unless employed. He was, however, expected to remain at X. from Saturday night till Monday morning, but his family residing in Y., he received permission one Sunday to visit them, and while traveling thither under a conductor's pass, he was killed by the negligence of the company's employes. Held, that he was not a co-employe. See also State v. Western Md. R. Co., 63 Md. 433; O'Donnell v. Allegheny, etc., R. Co., 59 Pa. St. 239; Baltimore,

jured by a train being thrown from the track through the negligence of the train hands cannot recover.1 An engine wiper, also, employed in the company's round-house, is a fellow-servant of the men operating a train and cannot recover for any injury he may receive, while walking through the yards, through their negligence.2 But an express messenger, carried on a railroad train under a contract with an express company, is a passenger, and not a fellow-servant of the trainmen, and if he is injured through their negligence, he may have his action against the railroad company. A track repairer, injured through the negligence of the train hands in failing to light the head-light of the locomotive is not entitled to recover, or if he is negligent

etc., R. Co. v. State, 33 Md. 542; Hutchinson v. York, etc., R. Co., 5 Exch. 343.

person is a passenger and the company is liable for his death. Commonwealth v. Vermont & M. R. Co.,

1. Mosely v. Chamberlain, 18 Wis. 108 Mass. 7. 700.

But in Central Trust Co. v. Wabash, etc., R. Co., 34 Fed. Rep. 616, it was held that an expressman and baggageman, killed in a collision while in the discharge of his duty on defendant's passenger train, through the negligence of the employes on defendant's freight train, was not a fellow-servant of such employes, following the Illinois doctrine of consociation, and the case of Chicago, etc., R. Co. v. Ross, 112 U. S. 377; s. c., 17 Am. & Eng. R. R. Cas. 501.

2. Ewald v. Chicago & N. W. R. Co. 70 Wis. 420; s. c., 33 Am. & Eng. R. R. Cas. 326.

3. Blair v. Erie R. Co., 66 N. Y. 313; s. c., 23 Am. Rep. 55; Jennings v. Grand Trunk R. Co., 15 Ont. App. Rep. 477; Pennsylvania Co. v. Woodworth, 26 Ohio St. 585. Neither is a person who buys of a railroad company the right to sell popcorn on their trains a servant. Such a

A stockholder riding free at the invitation of the president of the road is a passenger and not a fellowservant of the train hands. Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 482.

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4. Collins v. St. Paul, etc., R. Co., 30 Minn. 31; s. c., 8 Am. & Eng. R. R. Cas. 150. The negligent omission," say the Court, "to provide a head-light (or lantern) upon the locomotive,-it appearing that a headlight is necessary to the safe running of a train in the dark,—would have been the negligence of the defendant, as between it and its servants, for which it would have been liable to them for injuries caused by it. Drymala v. Thompson, 26 Minn. There was, however, no evidence that there was not a headlight on the locomotive; on the contrary, the evidence was full and satisfactory that it had a head-light. There was evidence enough that it

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ly run over.1 It makes no difference, where a train hand is injured in a collision through the negligence of other train hands, whether the accident was occasioned by the negligence of the servants manning the train in which the injured servant was, or of those on the other train, or both.2

§ 142. Yard Hands and Yardmaster.—

A yardmaster, through whose negligence an injury occurs to his assistant, is the fellow-servant of such assistant as to all acts done within the range of common employment, except such as are done in the performance of some duty which the company owes to its servants. a New York case it appeared that McC. was employed