tion of the law, was a contingency merely pro- | shall come into force, than to give to such lovided for by the Legislature as to the time when it should become operative. Mr. Justice Agnew, in Locke's Appeal, 72 Pa. 491, thus expresses it: "The law did not spring from the vote, but the vote sprang from the law, and the law alone declared the consequence to flow from the vote. The assumption that the Act is not a law till enacted by the people is the foundation of the argument, and with its fall the superstructure vanishes. The character of this law is precisely that of hundreds of others, which the legislative will makes dependent on some future act or fact for its operation. To assert that a law is less a law because it is made to depend on a future event or act is to rob the Legislature of the power to act wisely for the public welfare, whenever a law is passed relating to a state of affairs not yet developed, or to things future, and impossible to be fully known." See also State v. Court of Common Pleas, 36 N. J. L. 72; Gloversville v. Howell, 70 N. Y. 286; Fell v. State, 42 Md. 71; Com. v. Weller, 14 Bush, 218; State v. Wilcox, 42 Conn. 364; Boyd v. Bryant, 35 Ark. 69; Com. v. Bennett, 108 Mass. 27; Cain v. Davie Co. 86 N. C. 8; Bancroft v. Dumas, 21 Vt. 456; Smith v. Janesville, 26 Wis. 291. But the theory of self government, upon which our whole fabric of government is founded, seems to furnish the proper and natural solution of the question. These laws are local in character. Different localities may be differently affected by such legislation, and from the early history of our colonial governments questions affecting the locality have been left to the decision of the people interested therein. The New England town of to-day is a small republic in everything pertaining to local government, the county is an aggregation of towns, and the State an aggregation of counties with sovereign powers. The town or municipality does not concede that it derived its authority through the munificence of the State in the de scent of power, but it claims to have bad such power anterior to the State; that the State is the creation of the town rather than that the town is the creation of the State. Mr. Cooley states the doctrine very clearly when referring to the so called delegation of legislative power to municipalities: "The Legislature, in these cases, is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of state policy or dangers of local abuse to warrant the interposition." Cooley, Const. Lim. 229. It would seem to be conceded that the Legislature has power to authorize or allow municipal governments by charter to exercise all the ordinary police powers, including the regulation and prohibition of the sale of intoxicating liquors. If this be so, it is certainly far less a delegation of power to enact for such locality a perfect and complete statute, leaving to its people only the power to fix the date when it cality complete control and power over such legislation. The law being conceded to belong to the police powers of the government, and to be local in character, it may with propriety be left to the county to determine when it shall and when it shall not be enforced. The objection that the statute provides no penalties, and cannot, therefore, be enforced, is answered by examination of the statute which, in terms and by implication, continues the former penalties in force, and provides an additional remedy for the restraint of such sale by injunction. See section 5, supra. The language of the section is too plain to admit of doubt. The Legislature clearly intended to apply the penalties of the former law to a disobedience of the latter law. The former law is in no manner repealed, in terms or by implica tion, but was in several sections amended by the same Legislature, and continued in full force. Chapters 71, 72, etc., Laws 1887. By reference to the penalties prescribed by a former statute, and by providing others "in addition thereto," the statute must be construed as including and as having incorporated into it the penalties of the statute referred to. Turney v. Wilton, 36 Ill. 385; State v. Wilcox, 42 Conn. 364, 19 Am. Rep. 536. How The last point raised by counsel, to wit: that the law never passed the two branches of the Legislature in the manner prescribed by law, and which was ably and ingeniously presented, can receive but a passing notice here. far, under our law, a court has power to go behind the statute, as it appears to be approved by the Executive, and examine the journals and other records to determine the regularity and validity of its enactment, we are not required here to determine: for, while from the arguments of counsel there appear to be irregularities in the bill and mistakes in reference to the bill, in the various stages of progress through the two Houses, and on its way to the Executive, exhibiting to the court an almost inexcus able haste and want of care in the consideration of so important a measure, yet we are clearly of the opinion that no such omission was made or error committed as would render invalid the Act in question, if we were to go behind the Act as approved to consider its effect. The certifi cate of the presiding officer of each House shows the Act to have been regularly passed by that body. The journals are in many cases silent as to the action of the House when they should have spoken. The Act was in proper time approved by the Governor, and it is sufficient for this case to say it will not declare the law invalid by reason of the mere failure of the jour nals to record its passage, and, in the absence of any affirmative record that it did not secure the concurrence of both Houses, we cannot say that the certificates of the sworn officers of the two bodies of the legislative department do not upon their face import validity. The writ is discharged, and the defendant is remanded to the custody of the officer having him in charge. All the Justices concur, except Justice Thomas, not voting. Biddena ELLIOT, Respt., 0. Meckling. On November 1, 1884, a freight train was approaching this station from the CHICAGO, MILWAUKEE & ST. PAUL west, in charge of a conductor, assisted by an R. CO., Appt. (....Dak.....) 1. A section foreman whose duties require him to be on and about the track, to keep it in proper condition for running trains over it, where he is liable to be injured by passing trains, and the conductor of a freight train are fellow servants so as to prevent any recovery for injuries received by the foreman in consequence of the conductor's negligence. engineer, fireman and others, and as it neared this station was, during the process of making a flying switch, divided into three sections, the first of which, consisting of the engine and a number of cars, passed down the main track. Some of the other cars were put upon a side track; and then the rear section of the train, consisting of four cars, including a caboose and passenger coach, was also moved down the main track. About the time the first section of the train 2. Where the view of the railroad track passed down, the deceased was standing a short was unobstructed, a section foreman who, distance south of the main track, and, after it in attempting to cross the main track diagonally, had passed him he undertook to cross that track while the rear section of a train which was mak-diagonally in an easterly direction, and was ing a flying switch was in full view, and not more struck by the rear section of the train, and inthan twenty-five or thirty feet from him, coming stantly killed. There was no evidence showbehind him, was struck and killed, was guilty of ing that the conductor was not a fit person for negligence which will prevent any recovery on the service that he was employed in, nor was there any evidence showing that the deceased had received any order from, or was doing any act by direction of, the conductor or other person connected with the train. account of his death. 3. Evidence as to whether a person killed was usually careful or careless is not admissible on the question whether he was negligent at the time he was killed. (February 9, 1889.*) APPEAL by defendant, from a judgment of the District Court of Clay County in favor of plaintiff in an action to recover damages for the death of plaintiff's husband, alleged to have resulted from defendant's negligence. Reversed. Statement by Spencer, J.: Appeal from a judgment of the District Court of the Fourth District, in and for the County of Clay, entered in favor of the plaintiff, upon a verdict. The action was brought to recover damages for the death of John Elliot, plaintiff's husband, alleged to have been caused by defendant's negligence. The deceased at the time of his death was in the employ of the defendant as a section foreman, and the injuries from the effect of which he died were occasioned by the negligence of other of defendant's employés in running a freight train, and while making a flying switch. Mr. R. B. Tripp with Mr. H. H. Field, for appellant. Messrs. Grigsby & Lyon for respondent. court: This action was brought by the plaintiff, to recover damages for the death of her husband, John Elliot, alleged to have been caused by the negligence of the defendant's employés. At the close of the evidence counsel for the defendant moved the court to direct a verdict for the defendant upon several grounds, and, among others, that if the evidence tended to show negligence it was the negligence of coemployes of the deceased, engaged in the same general business, for which no recovery could be had under section 1130 of the Civil Code. This motion was overruled, and the defend ant excepted. The court then charged the jury, and, among other things, instructed them as a matter of law that the deceased and the conductor of this freight train were not coemployés within the purview of this statute, and to this instruction the defendant also excepted. The case was submitted to the jury, who returned a verdict in favor of the plaintiff. The defendant duly moved for a new trial, upon the grounds presented by said motions and exceptions, and others, which was denied. Judgment upon the verdict was entered for the plaintiff, and the defendant appealed. The general and well established principle liable to one of his agents or servants for the of the common law, that an employer is not negligence of another of his agents or servants engaged in the same general business, has been of this Territory; and hence, in the consideraingrafted in, and forms part of, the statute law tion of the question presented by the exceptions of the defendant to the ruling of the court whether the deceased and the conductor of the above alluded to, we have only to determine freight train aforesaid were coemployés of the defendant, engaged in the same general business, within the meaning of this statute. The statute does not undertake to define who are coemployés, or what is intended by the term "same general business," but merely declares the general rule of law as to the non-liability of an employer to his agents and servants in the cases mentioned, leaving it for the courts to determine when persons are coemployés, See Muhlman v. Union Pac. R. Co. 2 L. R. A. 192; engaged in a common business. Stringham v. Stewart, 1 L. R. A. 483. The deceased, at the time he received the injuries which resulted in his death, was in the employment of the defendant on its line of railway as a section foreman at a station called *The original judgment of reversal was rendered in this case in May, 1887. Thereafter a reargument was granted and a decision announced May 25, 1888, adhering to the former conclusion; but no opinion was written and filed until the date given above. [Rep.] NOTE.-Master and Servant. The question thus presented has frequently been considered by the courts of this country | a switchman was injured through the negli and England, and to the adjudications upon gence of an engineer. this subject we may turn for such explanation In the latter case Mr. Justice Gray delivered of this term as they may yield, and as demon- the opinion of the court, and in discussing the strating under what circumstances this rule relations of these persons, and whether they has been applied. A general collection of all were engaged in a common business, used the the authorities on this subject at this time following language: "They are employed and would be impracticable, and is not necessary; paid by the same master. The duties of the but a few, selected from the many, as showing two bring them to work at the same place at the current of authority, and the general appli- the same time, so that the negligence of the cation of the principle, will be all-sufficient. one in doing his work may injure the other in doing his work. Their separate services have an immediate common object-the moving of the trains. Neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury, caused by such negligence, against the corporation, their common master.' It was decided as early as 1841, in South Carolina, that a section foreman who was in jured by the negligence of an engineer could not recover against their common employer for the injuries thus sustained, because they were coemployés of a common master, engaged in the same general business. Murray v. South Carolina R. Co. 1 McMul. L. 385. Soon after, it was determined by the Supreme Court of Massachusetts that an engineer who was in the employ of a railroad company, and was injured by the negligence of a switch tender, could not recover damages against the company, the negligent employé being also in its employ. Farwell v. Boston & W. R. Co. 4 Met. 49. This decision has since been followed by the courts of that State, and the doctrine applied where a brakeman was injured by the negligence of a trackman (Holden v. Fitchburg R. Co. 129 Mass. 268), and in (lifford v. Old Colony R. Co. 141 Mass. 564, 2 New Eng. Rep. 175, where the injuries were sustained by a section man, and were occasioned by the negligence of an engineer, both in the service of the company. The courts of New York have held a similar rule, and applied it in the instances following: where a section man was injured by the negligence of a trainman (Coon v. Syracuse & Ů. R. Co, 5 N. Y. 492); where a brakeman was injured through the carelessness of an engineer (Boldt v. New York Cent. R. Co. 18 N. Y. 432); where a shoveler was injured by the negligence of trainmen (Henry v. Štaten Island R. Co. 81 N. Y. 373); where a fireman was killed because of the negligence of a switchman. Harvey v. New York Cent. & H. R. R. Co. 88 N. Y. 481. In Illinois the rule was applied in the case of a car repairer injured by the negligence of an engineer (Valtez v. Ohio & M. R. Co. 85 Ill. 500); and in Pennsylvania, in the case of a section man and engineer (Keys v. Pa. Co. 1 Cent. Rep. 893); in Wisconsin, in the case of a shoveler and conductor (Heine v. Chicago & N. W. R. Co. 58 Wis. 525); in Minnesota, in the case of an engineer and station agent (Brown v. Minneapolis & St. L. R. Co. 31 Minn. 553); in Indiana, where a section man was injured through the negligence of an engineer (Gormley v. Ohio & M. R. Co. 72 Ind. 31); and also where a track man was injured by negligence of engineer (Capper v. Louisville, E. & St. L. R. Co. 103 Ind. 305, 1 West. Rep. 287); and in many of the other States. In all of them where the subject has been considered by the courts, except Tennessee, the rule has been applied in like cases; and, finally, the United States Supreme Court, in the case of Randall v. Baltimore & O. R. Co. 109 U. S. 478 [27 L. ed. 1003], has held it to be the established law, and applied it to the case where This opinion was concurred in by all the members of the court, and would seem to be decisive of the question under consideration. In the case at bar the character of the labor which the deceased was engaged to perform required him to be on and about the track to keep it in proper condition for running trains over it, and placed him in situation where he was liable to be injured by passing trains. All of the duties which he was employed to perform necessarily required his presence on the track, and all the risk to which he was exposed arose from the nature of the employment which he took upon himself. Some of the cases differ as to the reason of the rule, but there is no conflict of opinion as to its application to employés of a common master, at work for the accomplishment of a single purpose. It is sufficient within these cases to command the application of the rule, if the end to be obtained by the labor of the several employés under a common master is the same, to constitute them fellow-servants engaged in the same general business, though the services rendered may be different in kind, and rendered separately and independently of each other. It was in this manner, and for the achievement of a common purpose-the moving of trains over defendant's road-that the conductor of this freight train and the deceased were employed. Both were in the employ of and paid by the same master, both were engaged in the service of operating a railroad-the conductor in managing trains passing over the road, and the deceased in keeping such road in repair and condition for the transportation of trains over it-both receiving orders from some officer of the defendant superior to either. Neither performed his work under the direc tion of the other, nor was he under the control of the other. From the character of the duties each had to perform in promoting the common object of their employment, they were brought together as co-employés, neither being superior to or representing the common employer more than the other. True, one of the rules of the defendant, which was put in evidence, provides that in case of accident or delay track foremen shall obey orders from the conductors; but there is no evidence showing that the deceased had received or was executing any orders from the conductor of the freight train, or other person connected with it; on the contrary, the reasonable presumption from all the evidence and circumstances is that he had not received any orders from the conductor, and that his act in crossing the track was entirely voluntary on his part. The counsel for the respondent has argued with much ingenuity that the general rule of law as it has been heretofore understood has been so modified by the decision of the court in the case of Chicago Railroad Company v. Ross, 112 U. S. 377 [28 L. ed. 787], as permits a recovery by the plaintiff in this suit. We do not think that the decision in that case supports plaintiff's position. It modifies and limits to some degree the extent to which the rule is applicable, and holds, substantially, that an employé of a railroad company may, under some circumstances, and as to some persons, become a representative of his employer to such an extent as to render his principal liable for his negligent acts; and that a conductor of a railroad train, having a right to command its movements and control the other persons employed upon it, as to such persons may cease to be a fellow servant, while he remains in charge of such train, and may, under some circumstances, during such time, become a representative of the company. This decision modifies the rule as laid down in Sherman v. Rochester Railroad Company, 17 N. Y. 153, and other like cases. But we do not understand it overrules the general rule of law that where several persons are employed in the same general service, by a common employer, and one is injured by the negligence of the other, the employer is not responsible. would seem to support respondent's position here. But in this regard it is apparently in conflict with Randall v. Baltimore Railroad Company, supra, though the learned judge who wrote the opinion in the former concurred in the decision in the latter, in which the court was unanimous; and the law as there pronounced must be taken and accepted as the law of this territory. Several other decisions of the circuit courts have been cited by respondent as sustaining his view; but upon examination it will be found that they all proceed upon the doctrine of superior authority or control of one employé over another, or upon the negligence of the employer or person charged by him with the performance of a duty owing to the employé. There is no pretense in the case at bar that the appellant failed to discharge any duty owing by it to the deceased, or that the company was negligent in the employment of, or retention in its service of, the conductor who had charge of the train. It is not, therefore, within the purview of section 1131, nor within the exception to section 1130. On the contrary, it comes directly within the exemption defined by section 1130, and within the doctrine of the common law, as stated in Randall v. Baltimore Railroad Company, supra. Since the decision in the Garrahy Case the question here involved has been before several of the Circuit Courts of the United States, and the decision in the Randall Case adhered to and followed. Thus, in Van Wickle v. Manhattan Railway Company, 32 Fed. Rep. 278, it was held that a track repairer and an engineer were co-employés, and that the company was not liable to the former for an injury resulting from the negligence of the latter. Coxe, J., in his opinion, after referring to the Garrahy Case, says: "Recognizing the marked lack of unanimity among the decisions, it may still be confidently affirmed that the proposition that persons holding the relation that this plaintiff and the engineer held to each other are fellow servants is maintained by a great preponderance of authority," and in support of this view he cites Randall v. Baltimore Rail road Company, supra; Vick v. New York Cent. The facts and circumstances of that case were unlike the case at bar. There the conductor was charged with a special duty, which it was incumbent upon his employer to perform, and which he neglected to render. The engineer, the injured person, was subject to his command. Here it is expressly proven, and uncontradicted, that the conductor had no authority or control over the deceased. He was not then a superior over the deceased, and, as to him, did not represent the defendant. The case of Northern Pacific Railroad Com-road Company, Boldt v. New York Cent. Railpany v. Herbert, 116 U. S. 642 [29 L. ed. 755], also relied upon by the respondent, is not applicable here. That case decides that under section 1131 of the Civil Code a railroad company is liable to one of its employés a brake-Rep. 363. man-for the negligence of another employé --a car repairer-in failing to keep in proper repair certain appliances used by the injured person in the transaction of the business of the company, which he was employed to do, and he was held not to be in the same business as the brakeman, who was injured by the use of a defective car. It was the duty of the company to provide safe machinery and appliances. The facts in these cases, and the grounds upon which the decisions rest, are clearly inapplicable to support respondent's position here; nor do they militate against the doctrine laid down in Randall v. Baltimore Railroad Company, supra, though the decision in the Ross Case was made subsequently. The case of Garrahy v. Kansas City Railroad Company, 25 Fed. Rep. 258, as reported, So, in Easton v. Houston R. Co. 32 Fed. Rep. 893, the United States Circuit Court, in Texas, made a similar ruling, Pardee, J., in his opinion, using the following language: "As federal authorities sustaining the finding of the master I have been referred to the case of Chicago Railroad Company v. Ross, 112 U. S. 377 [28 L. ed. 787], which holds that 'A conductor of a railroad train, who has the right to command the movements of the train, and to control the persons employed upon it, represents the company while performing those duties, and does not bear the relation of fellow servant to the engineer and other employés of the corporation on the train'; and to the later case of Northern Pacific Railroad Company v. Herbert, 116 U. S. 648 [29 L. ed. 758], where it was held that a brakeman and the officer or agent of the company charged with the duty of keeping the cars in repair were not fellow servants within the common-law rule. These cases were decided by a divided court. "In the Case of Ross the vice principal doctrine is recognized, and in the Case of Herbert the fellow-servant negligence rule is modified by limiting the application of the rule to employés in the same department of service; and under this latter authority I can well see how the master might conclude in this case that, as the section hand and the locomotive engineer are in separate departments, they are not fellow servants assuming the risks of each other's negligent acts. I am, however, of the opinion that neither of these cases is applicable to the facts of the present case. "Whatever may be, as a general rule, the duties of the section hand, as distinguished from the duties of those railroad employés running trains and locomotives, at the time of complainant's injury he was running a car on the road, and his duty and employment brought him in direct connection and relation with the employés running the special train causing the injury. Both were using the tracks of the railway at the same time, and so near to each other that the conduct of the one necessarily affected the comfort and safety of the other. At that time, it seems to me, they were fellow servants in the same general department, governed by the same rules, and respectively charged with the ordinary risks of each other's negligent acts. "The case of Randall v. Baltimore Railroad Company, 109 U. S. 478 [27 L. ed. 1003], by a unanimous court, seems to me to be directly in point." And again, in Naylor v. New York Central Railroad Company, 33 Fed. Rep. 801, the Circuit Court of the Northern District of New York held that an engineer and switchman were fellow servants. Wallace, J., said: "The switchman and the deceased engineer were not only co-employés of the defendant, but they were each engaged in duties which brought them to work at the same place, at the same time, under circumstances in which the carelessness of one might be fatal to the safety of the other." The decision in each of these cases was placed upon the authority of Randall v. Baltimore Railway Company, supra. Upon reason and authority, therefore, we are of opinion in the case under consideration that the conductor and the deceased were coemployés, and engaged in the same general business, and that the trial court erred in holding otherwise. Did the negligence of the deceased contribute to the accident which resulted in his death? James Kennedy, one of the witnesses sworn in behalf of the defendant, testified as follows: "We commenced pushing the car out of the way of the approaching car that was coming on to the side track. We commenced pushing, and the next thing I heard Mr. Elliot holler. I thought it was him . . . When Elliot hollered to me he was ten or twelve feet west of the car-house. At that time I was right opposite on the side track-right across from him The train was coming from the west. They made what I should call a 'flying switch,' to the best of my judgment. Part of the train came down the main track with the engine, and part came in on the side track, and another part came on the main track. The last part was the part that struck Elliot. I saw the train after it struck him. I helped get him out from under the cars. It was the last section that struck him-the last part on the main track. The first part was on the main track, and the middle part was sent off on this side track." H. C. Smith, a witness for plaintiff, also testified as follows: "I was acquainted with Elliot; worked under him in his gang about seven months. I was present the morning this accident occurred. Just before the accident, Elliot and I were talking, about twenty-five feet west of the car-house, before the train came down; and when the engine went by us I started west and he started east. He got as far as ten or fifteen feet from the car-house, when he stepped across the track. I should judge that is about as far as he got. I went west toward the depot. I did not go on the depot platform until I looked around, and saw a man under the train. I did not know it was him at the time. I did not see him struck. When Elliot and I were talking we were not on the track. We were on the south side, four or six feet from the track. I mean that he crossed from the south side to the north side. I saw him cross the south rail. I did not pay any attention whatever. I thought he got across all right, Cross-Examination. "This accident was a little after 8 o'clock in the morning. It was a clear morning. There was nothing on the track to obstruct the view from where I and Elliot stood by the track. At the time we were standing there I knew this train was in, or about in. While I was standing there with Elliot, the front part of the train pulled past me, down to the east. I did not notice any cars attached to the engine in the front part. I would not be positive of that. I recollect two cars set in on the south track. I don't know what the men on the hand-car were doing while Elliot and I were standing there. I did not notice them doing anything during that time. Just before that, I was running with the section force. I had another man in my place that day. I belonged with the force. I was going away that day, and was talking with Elliot just before leaving to go down and get on the train. The first that I noticed the rear end of the train coming down the track was just as it run in on the switch, coming in on the main track, the rear end of it, after the car went in on the side track, and as I turned and left Elliot to come up towards the depot. It was about opposite to the depot when I started to go west. As I went west towards the depot it came down the track, and immediately passed me. The last I saw of Elliot before the accident happened was when I turned to look and he was just in the act of stepping over the south rail. At that time he was across the south rail. I saw him. He was stepping across. At that time I was ten or fifteen feet from where I was talking with him. The last I saw of Elliot he was stepping across the rail. At that time the train must have been most down to Elliot. I should judge the car was about twenty-five or thirty feet from Elliot when he crossed the rail. The last I saw of Elliot before the accident was at that time. |