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Cases, for Injuries Received by Its Servants | section shall for each offense forfeit and pay and Employees on Account of the Careless- to the person wronged or deprived of his ness or Negligence of a Fellow Servant or rights hereunder the sum of not less than Employee," is applicable to cases against fifty dollars ($50) nor more than five hunthe receiver of a railroad corporation, espe. dred dollars ($500), to be recovered in a cially one acting under the orders of a Fed- civil action." eral court.
By the 2d section it is made "unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective. If the employee of any such corporation shall recieve any injury by reason of any defect in any car or locomotive, or in the machinery or attachments thereto belonging, owned, and operated, or being run and operated, by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained; and when the fact of such defect shall be made to appear at the trial of any action in the courts of this state, brought by such employee, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the
part of such corporation."
The 1st section of the act provides that "it shall be unlawful for any railroad or railway corporation or company owning and operating, or operating, or that may hereafter own or operate, a railroad in whole or in part in this state, to adopt or promulgate any rule or regulation for the government of its servants or employees, or make or enter into any contract or agreement with any person engaged in, or about to engage in, its service, in which, or by the terms of which, such employee in any manner, directly or indirectly, promises or agrees to hold such corporation or company harmless, on account of any injury he may receive by reason of any accident to, breakage, defect, or insufficiency in, the cars or machinery and attachments thereto belonging, upon any cars so owned and operated, or being run and operated by such corporation or company, being defective, and any such rule, regula tion, contract, or agreement shall be of no effect. It shall be unlawful for any corporThe 3d section, which is the one whose ation to compel or require, directly or inscope and meaning is involved in this acdirectly, an employee to join any company tion, provides that "in all actions against association whatsoever, or to withhold any the railroad company for personal injury to, part of an employee's wages or his salary for or death resulting from personal injury of, the payment of dues or assessments in any society or organization whatsoever, or de- any person, while in the employ of such company, arising from the negligence of such mand or require either as a condition pre-company or any of its officers or employees, cedent to securing employment or being employed; and said railroad or railway company shall not discharge any employee because he refuses or neglects to become a member of any society or organization. And if any employee is discharged he may, at any time within ten days after receiving a notice of his discharge, demand the reason of said discharge; and said railway or railroad company shall thereupon furnish said reason to said discharged employee in writing. And no railroad company, insurance society or association, or other person, shall demand, accept, require, or enter into any contract, agreement, or stipulalation with any person about to enter or in the employ of any railroad company whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company thereafter arising for personal injury or death, or whereby he agrees to surrender or waive in case he asserts the same any other right whatsoever; and all such stipulation and agreements shall be void, and every corporation, association, or person violating, or aiding or abetting in the violation of, this
it shall be held, in addition to the liability
At the trial below it was contended on behalf of the plaintiff that the conductor and switchmen or yard brakemen, even when engaged together, at the same time and place, in operating the same train of cars, were not to be deemed fellow servants within the rule exempting an employer from liability to one servant for an injury caused by the negligence of a fellow servant. The circuit court, held by Judge Hammond, without deciding this question as one of general law,
'held that the case was governed by the 3d section of the above act of April 2, 1890, and, consequently, that Bartley, the conductor, having power to direct and control the work in which Van Dusen was engaged, was the superior, not the fellow servant, of Van Dusen, and was, therefore, the representative of the receiver.
The contention of the receiver is that that act by its terms applies only to corporations owning or operating railroads in whole or in part in Ohio by their own officers; and that it cannot properly be construed as applying to receivers operating railroads under the orders of a court of chancery. There are adjudged cases arising under statutes similar to the Ohio statute which seem to sustain this contention of the receiver. Henderson v. Walker, 55 Ga. 481; Campbell v. Cook, 86 Tex. 630, 634, 40 Am. St. Rep. 878,
26 S. W. 486.
If the reasoning of the Georgia and Texas courts be applied to the Ohio statute, it cannot be held to embrace employees acting under the receiver of a railroad corporation. But, in our judgment, the statute is applicable to actions against receivers of railroad corporations. To hold otherwise would be to subordinate the reason of the law altogether to its letter. While the intention of the legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of such words. If the Ohio statute is construed as applicable only to actions for personal injuries brought directly against railroad corporations, the result would be that in an action brought in one of the courts of Ohio the employees of a railroad corporation would be accorded rights that would be denied in another action of like kind, perhaps in the same court, to employees of the receiver of a railroad corporation under exactly similar circumstances. Could such a result have been contemplated by the legislature of Ohio? We think not. The avowed object of the statute was the protection and relief of railroad employees. To that end, it declared that in the actions mentioned in it every person employed by the railroad company, and invested with power or authority to direct or control other employees, should be deemed the superior, not the fellow servant, of those under his direction and control. The legal effect, as well as the object, of this declaration was, in the cases specified, to make the negligence of the superior the negligence of the company. No violence is done to the ordinary meaning of the words of the statute if it be held that the legislature had in mind actions against receivers of railroad corpo
rations, as well as actions directly against such corporations. The appointment of a receiver of a railroad does not change the title to the property, or work a dissolution of the corporation. Although the creature of the court, and acting under its orders, the receiver, for most purposes, stands in the place of the corporation, exercising its general powers, asserting its rights, controlling its property, carrying out the objects for which it was created, discharging the public duties resting upon it, and representing the interests as well of those who own the railroad as of those who have claims against the corporation or its property. The corporation remains in existence notwithstanding a provisional receivership established by an der of court; and for the purpose of effectuating the will of the state, as manifested by the act of 1890, an action against the receiver arising out of his management of the property may be regarded as one against the corporation "in the hands of," or possession of," the receiver. McNulta v. Lochridge, 141 U. S. 327, 331, 35 L. ed. 796, 799, 12 Sup. Ct. Rep. 11.
In Central Trust Co. v. Wabash, St. L. & P. R. Co. (1886) 26 Fed. 12, it was held that the statute of Missouri giving double damages against "every railroad corporation" which did not erect and maintain fences, openings, gates, farm crossings, and cattle guards on the line of its road (the validity of which act was sustained in Missouri P. R. Co. v. Humes, 115 U. S. 512, 29 L. ed. 463, 6 Sup. Ct. Rep. 110,) was appli cable to a railroad in the hands of a receiver. To the same effect was Hornsby v. Eddy, 5 C. C. A. 560, 572, 12 U. S. App. 404, 56 Fed. 461, where the question was as to the applicability to Federal receivers of a railroad of a statute of Kansas providing that "every railroad company" organized or doing business in that state "shall be liable for all damages done to any employee of such company, in consequence of any negli gence of its agents, or by any mismanage ment of its engineers or other employees, to any person sustaining such damage." In that case, the circuit court of appeals for the eighth circuit well said: "It is clear that, with respect to persons employed by a railway company as railway operatives, the statute last above quoted changes the rule of the common law that the master is not liable to a servant for an injury sustained in consequence of the negligence of a fellow servant. Does the fact that a receiver is appointed to temporarily operate a railroad forthwith alter the status of all of its employees, and re-establish as to them the rule of the common law, so long as the receiver remains in charge? Viewing the question in
the light of those considerations of public policy which probably gave birth to the statute, we cannot conceive of any reason why the appointment of a receiver should have such effect. It is a fact of which we may well take judicial notice that great railway systems, which employ thousands of men, are frequently operated for a term of years through the agency of a receiver. Such receivers do not, as a general rule, change the working force of the road, or the rules and regulations by which trains are run, or by which the other business of the road is transacted. The men whom they employ are engaged in the same quasi-public service as other railway employees, and daily encounter the same risks and hazards. Furthermore the receiver of a railroad operates it for the immediate benefit of the company by which it is owned, in that he discharges all of the public duties of the corporation, and appropriates the income of its road to the preservation of its property and franchises, and to the payment of its debts."
So much as to the scope and true meaning of the Ohio statute, without reference to the courts in which it may be enforced. If the statute means what we hold it to mean, must not full effect be given to it in actions for personal injuries brought against a receiver in a court of the United States? This question must be answered in the af firmative. Such legislation is not liable to the objection that it encroaches upon Feder al authority, or upon the jurisdiction or power of the United States court. The statute does nothing more than to prescribe a rule of action to be observed by all within the state. The authority to enact it is derived from the general power of the state to regulate the exercise of the relative rights and duties, and to provide for the safety, of all persons within its territorial jurisdiction. It is the duty of the Federal court sitting in this state to enforce all enactments having such objects in view, unless they encroach upon the powers and authority of the United States. That duty arises out of the statute declaring that "the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." Rev. Stat. § 721, U. S. Comp. Stat. 1901, p. 581; Baltimore & O. R. Co. v. Camp, 13 C. C. A. 233, 31 U. S. App. 213, 65 Fed. 952. Indeed, if Congress had not so declared, this court, upon principles of comity, and in support of the public policy of the state, might well recognize and enforce, in actions brought against receivers of railroads, any
rule established by the state for like actions brought against railroad companies.
The Ohio statute is not applicable alone to railroad corporations of Ohio engaged in the domestic commerce of this state, It is equally applicable to railroad corporations doing business in Ohio and engaged in commerce among the states although the statute, in its operation, may affect in some degree a subject over which Congress can exert full power. The states may do many things affecting commerce with foreign nations and among the several states until Congress covers the subject by national legislation. This principle is illustrated in many cases; as in Cooley v. Port Wardens, 12 How. 299, 320, 13 L. ed. 996, 1005. where the pilot laws of Pennsylvania were sustained, and were held to have been enacted by virtue of the power residing in the state to legislate, Congress not having abrogated them or established regulations inconsistent with them; as in Sherlock v. Alling, 93 U. S. 99, 104, 23 L. ed. 819, 820, where the court held that a statute of Indiana, giving a right of action to the personal representatives of a deceased when his death was caused by the wrongful act or omission of another, was applicable to the case of death resulting from collisions between vessels engaged in interstate commerce; and in which case it was said, generally, "that the legislation of a state, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit;" as in Morgan's L. & T. R. & S. S. Co. v. Board of Health, 118 U. S. 455, 463, 30 L. ed. 237, 241, 6 Sup. Ct. Rep. 1114, where a quarantine statute of Louisiana, directly affecting comn.erce among the states and with foreign nations, was held not to be void as a regulation of commerce, but was valid under the power of the state to protect the public health, and was to be respected until the system of quarantine established by it was abrogated or displaced by Congress; as in Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564, where a statute of Alabama was upheld that required all locomotive engineers in that state, whether they served on trains engaged in domestic commerce, or only on trains engaged in interstate commerce, to be examined and licensed by a state board before acting as engineers within that state; and as in Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 100, 32 L. ed. 352, 354, 2 Inters. Com. Rep.
Undoubtedly, the whole subject of the liability of interstate railroad companies for the negligence of those in their service may be covered by national legislation enacted by Congress under its power to regulate commerce among the states. But, as Congress has not dealt with that subject, it was competent for Ohio to declare that an employee of any railroad corporation doing business here, including those engaged in commerce among the states, shall be deemed, in respect to his acts within this state, the superior, not the fellow servant, of other employees placed under his control. If the effect of the Ohio statute be, as undoubtedly it is, to impose upon such corporations, in particular circumstances, a lia
238, 9 Sup. Ct. Rep. 28, in which the court | act of Congress passed in execution of the held to be constitutional a state enactment power granted to it by the Constitution." requiring all locomotive engineers to be examined by a state board for color blindness, and in which case it was said that "wherever there is any business in which, either from the products created or the instrumentalities used, there is danger to life or property, it is not only within the power of the states, but it is among their plain duties, to make provision against accidents likely to follow in such business, so that the dangers attending it may be guarded against so far as is practicable;" and which local enactments were to be deemed valid until Congress took action on the subject. In Western U. Teleg. Co. v. James, 162 U. S. 650, 662, 40 L. ed. 1105, 1109, 16 Sup. Ct. Rep. 934, the Supreme Court of the United States held a statute of Georgia requiring everybility for injuries received by some of its telegraph company with a line of wires employees which would not otherwise rest wholly or partly within that state to re- upon them according to the principles of ceive despatches, and, on payment of the general law, that fact does not release the usual charges, to transmit and deliver them Federal court from its obligation to enforce with due diligence, under a named penalty, the enactments of the state. Of the validto be a valid exercise of the police power of ity of such state legislation we entertain no the state in relation to interstate messages. doubt. In Missouri P. R. Co. v. Mackey, The court said: "While it is vitally impor- 127 U. S. 205, 208, 210, 32 L. ed. 107-109, tant that commerce between the states 8 Sup. Ct. Rep. 1161, the Supreme Court should be unembarrassed by vexatious state had occasion to consider several objections to regulations regarding it, yet, on the other a law of Kansas making railroad companies hand, there are many occasions where the liable for injuries suffered by employees police power of the state can be properly through the negligence of their fellow servexercised to insure a faithful and prompt ants. Replying to the objection that such performance of duty within the limits of the legislation denies the equal protection of the state upon the part of those who are engaged laws to railroad companies, in that it did in interstate commerce. We think the stat- not apply alike to all corporations, the ute in question is one of that class, and, in court said: "But the hazardous character of the absence of any legislation by Congress, the business of operating a railway would the statute is a valid exercise of the power seem to call for special legislation with reof the state over the subject." spect to railroad corporations, having for its object the protection of their employees as well as the safety of the public. The business of other corporations is not subject to similiar dangers to their employees, and no objections, therefore, can be made to the legislation on the ground of its making an unjust discrimination."
In Hennington v. Georgia, 163 U. S. 299, 317, 41 L. ed. 166, 173, 16 Sup. Ct. Rep. 1086, in which a statute of Georgia forbidding the running of freight trains in that state on the Sabbath day was assailed as unconstitutional when applied to interstate commerce, the Supreme Court of the United States, upon a review of the adjudged cases, held it to be clear that "the legislative enactments of the states, passed under their admitted police powers, and having a rea! relation to the domestic peace, order, health, and safety of their people; but which, by their necessary operation, affect to some extent, or for a limited time, the conduct of commerce among the states, are yet not invalid by force alone of the grant of power to Congress to regulate such commerce; and, if not obnoxious to some other constitutional provision, or destructive of some right secured by the fundamental law, are to be respected in the courts of the Union until they are superseded and displaced by some
There is another view of this matter, equally con usive. By act Cong. March 3, 1887, chap. 373 (24 Stat. at L. 554), as amended by act August 13, 1888, chap. 866 (25 Stat. at L. 433, U. S. Comp. Stat. 1901, p. 582), it is provided:
"Sec. 2. That whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the state in wh such property shall be situated in the same manner the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager
this view by the learned counsel for the receiver may be thus summarized: That the act imposes a liability for damages for the negligence of fellow servants only as against a railroad company operating a railroad within Ohio; that it confers a right of action only upon employees of such railroad "Sec. 3. That every receiver or manager companies; that no other employer is subof any property appointed by any court of ject to the liability, and no other employee the United States may be sued in respect is given the right; that the act selects from of any act or transaction of his in carrying the general class of employers railroad comon the business connected with such proper- panies operating railroads, and imposes upty, without the previous leave of the court on them a special burden; that the act is in which such receiver or manager was ap- special class legislation, not uniform pointed; but such suit shall be subject to throughout the state, and applies to no perthe general equity jurisdiction of the court son or company engaged in any other occuin which such receiver or manager was ap- pation employing servants, although the ocpointed, so far as the same shall be neces-cupation be equally hazardous. Consesary to the ends of justice." quently, the act is special in its operation and effect, is confined to particular corporations engaged in a specific business, does not cover the whole subject of the relations of master and servant, and is not, therefore, of a general nature, and of uniform operation throughout the state, within the meaning of the Constitution of Ohio.
It would seem to be clear that, under this act of Congress, if a railroad in the possession of a Federal receiver is to be managed and operated according to the requirements of the laws of the state in which the property is situated, "in the same manner that the owner or possessor therecf would be bound to do if in possession thereof," such management and operation must be subject to any rule prescribed by the state imposing upon railroad corporations liability for the negligence of employees having superior authority over other employees.
This we understand to be the effect of the decision in Eddy v. Lafayette, 163 U. S. 456, 464, 41 L. ed. 225, 228, 16 Sup. Ct. Rep. 1082, in which the question arose whether the local statutes regulating the service of process against a railway corporation were applicable to actions against the receivers of such corporations. The trial court and the circuit court of appeals were of opinion that the 3d section of the judiciary act of March 3, 1887, chap. 373, § 2 (24 Stat. at. L. 552, 554, U. S. Comp. Stat. 1901, p. 582), authorizing suits to be brought against receivers of railroads without special leave of the court by which they were appointed, was intended to place receivers "upon the same plane with railroad companies," both as respects their liability to be sued for acts done while operating a railroad, and as respects the mode of service of process. [4 U. S. App. 247, 251.] This court said: "We concur in that view, and in the conclusion reached, that the service in the present case, on an agent of the receivers, was sufficient to bring them into court in a suit arising within the Indian territory." But it is contended that the Ohio statute is repugnant to the provision of the Constitution of Ohio declaring that "all laws of a general nature shall have a uniform operation throughout the state." Art. 2, § 26. The argument made in support of
In support of these views, counsel have referred to Shaver v. Pennsylvania Co. 71 Fed. 931, which was an action to recover damages for personal injuries alleged to have resulted from the negligence of a railroad corporation and its agents. The defense was that the plaintiff, by becoming a member of an organization known as the "Voluntary Relief Department of the Pennsylvania Lines West of Pittsburgh," and accepting the benefits of said association, had agreed that the railroad company should be discharged from any and all liability to him on account of such injuries. The plaintiff demurred to the answer upon the ground that the agreement referred to was invalid under the above statute of Ohio of 1890, which, as we have seen, provides in its 1st section that "no railroad company, insurance society, or association, or other person, shall demand, accept, require, or enter into any contract, agreement, stipulation, with any other person about to enter, or in the employ of any railroad company, whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive, in case he asserts the same, any other right whatsoever; and all such stipulations or agreements shall be void," etc.
who shall wilfully violate the provisions of this section shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine not exceeding $3,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
Judge Ricks held that the contract relied on by the railroad company was valid, and that the statute of Ohio declaring it to be void was unconstitutional. "The Ohio statute," he said, "in denying to the employees of a railroad corporation the right