404 her husband. Under the deed of September 29, 1859, no interest in the undivided half of the land in lot 9 could revert to her husband prior to her death. Therefore, it was not any interest of his under that deed which her husband was conveying by the deed of June 1, 1874. Nor was it her power of appointment, created by the deed of September 29, 1859, which she was exercising by the deed of June 1, 1874, because that was to be made effective by a conveyance by Hannay, and there was no request or direction by her to Hannay to convey, and he never did convey. The debt of $3,500 to Batchelor, named in the latter deed, is described therein as a debt by William H. Brereton and Samuel Brereton to Batchelor, and Mrs. Brereton is not named as debtor. Therefore, all property which they were conveying by that deed, to secure that debt, was presumably their own property, and any interest of Mrs. Brereton in it, sufficient to call for her signature to that deed, was presumably an interest created by her being the wife of Samuel, and which was supposed to grow out of his title and her marital relation, and not to have been before conveyed, irrespective of any other interest which she had in the land, or any power of appointment in respect of it. It needs not much argument or authority to support the conclusion at which we have arrived. In Agricultural Bank v. Rice, 4 How. 225, 241, it was held that, in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee, and that merely signing, sealing, and acknowledging an instrument, in which another person is grantor, is not sufficient. In the present case, if Mrs. Brereton possessed the right, she was not the grantor, and used no words to convey her right. No intention on her part to execute the power she possessed appears in the deed. Warner v. Connecticut Mut. Life Ins. Co. 109 U. S. 357, S. C. 3. SUP. CT. REP. 221, and cases there cited; Story, Eq. Jur. § 1062a. Moreover, Hannay possessed the right, and was not the grantor, and was not requested or directed by Mrs. Brereton to convey. 2 Perry, Trusts, & 778. The decree of the court in general term is affirmed. (112 U. S. 377) CHICAGO, M. & ST. P. RY. Co. v. Ross.1 1. RAILROAD COMPANY-NEGLIGENCE OF CONDUCTOR-INJURY TO ENGINEER-RELATION 2. SAME CONDUctor is the RePRESENTATIVE OF THE COMPANY. The conductor of a railway train is the representative of the company, standing in its place and stead in the running of the train. The engineer is in that particular the conductor's subordinate, and for the former's negligence, by which the latter is injured, the company is responsible. BRADLEY, MATTHEWS, GRAY, and BLATCHFORD, JJ., dissenting. In Eiror to the Circuit Court of the United States for the District of Minnesota. *J. W. Cary, for plaintiff in error. C. K. Davis and Enoch Totten, for de fendant in error. FIELD, J. The plaintiff in the court below is a citizen of Minnesota, and by occupation an engineer on a railway train. The defendant in the court 1S. C. 8 Fed. Rep. 544. below, the plaintiff in error here, is a railway corporation created under the laws of Wisconsin. This action is brought to recover damages for injuries which the plaintiff sustained while engineer of a freight train by a collision with a gravel train on the sixth of November, 1880. Both trains belonged to the company, and for some years he had been employed as such engineer on its roads. On that day he was in charge of the engine of a regular freight train which left Minneapolis at a quarter past 1 in the morning, its regular schedule time, and had the right of the road over gravel trains, except when otherwise ordered. At the time of the collision, one McClintock was the conductor of the train, and had the entire charge of running it. It was his duty, under the regulations of the company, to show to the engineer all orders which he received with respect to the movements of the train. The reg ulations in this respect were as follows: "Conductors must, in all cases, when running by telegraph and special orders, show the same to the engineer of their train before leaving stations where the orders are received. The engineer must read and understand the order before leaving the station. The conductor will have charge and control of the train, and of all persons employed on it, and is responsible for its movements while on the road, except when his directions conflict with these regulations, or involve any risk or hazard, in which case the engineer will also be held responsible." When the freight train left Minneapolis on the morning of November 6, 1880, there was coming towards that city from Fort Snelling, by order of the company, over the same road, a gravel train, termed in the complaint a "wild train;" that is, a train not running on schedule time any regular trips. The conductor, McClintock, was informed by telegram from the train dispatcher of the coming of this gravel train, and ordered to hold the freight train at South Minneapolis until the gravel train arrived. South Minneapolis is between Minneapolis and the place where the collision occurred. The gravel train had been engaged for a week before in hauling in the night gravel to Minneapolis from a pit near Mendota, for the construction by the company of a new and separate line of railroad between St. Paul and Minneapolis, and the freight train had, during this time, been stopped by the conductor, on orders of the train dispatcher, upon side tracks between Minneapolis and St. Paul Junction for the passage of the gravel train. But on the night of November 6, 1880, he neglected to deliver to the plaintiff the order he had received, and after the train started he went into the caboose and there fell asleep. The freight train, of course, did not stop at the station designated, but, continuing at a speed of 15 miles an hour, entered a deep and narrow cut 300 feet in length, through which the road passed at a considerable curve, and on a down grade, when the plaintiff saw on the bank a reflection of the light from the engine of the gravel train, which was approaching from the opposite direction at a speed of five or six miles an hour, and was then within about 100 feet. He at once whistled for brakes and reversed his engine, but a collision almost immediately followed, destroying the engines, damaging the cars of the two trains, causing the death of one person, and inflicting upon the plaintiff severe and permanent injuries, for which he brings this action. On the trial the conductor of the gravel train testified that at the time of the collision he was under orders to run to South Minneapolis regardless of the plaintiff's train; that having 12 cars loaded with gravel his train stalled before reaching the cut where the collision happened; that he then separated his train in the middle, took six cars to Minnehaha station, went back with the engine for the other six cars, and was coming with them through the cut when the collision occurred; that the gravel train had run in the night about a week, and that when he could reach Minneapolis before the starting time *of plaintiff's train he ran without orders, otherwise upon orders, and had met or passed plaintiff's train at the same place about every night during the week. *383 It is evident from this brief statement that the conductor on each train was guilty of gross negligence. The conductor of the freight train was not only required by the general duty devolving on him as one controlling its movements to give to its engineer such orders as would enable him to avoid collision with other cars, but, as we have seen, he was expressly directed by the regulations of the company, when running by telegraph or special orders, to communicate them to him. Had these regulations been complied with the collision would have been avoided. The conductor of the gravel train allowed it to be so overloaded that its engine was incapable of moving it at one portion of the road before reaching the cut; and when, in consequence, he was obliged to leave half of his cars on the track while he took the others to Minnehaha, he omitted to send forward information of the delay or to put out signals of danger. Having for the week previous passed the freight train at nearly the same place on the road, he must have known that by the delay there was danger of collision. Ordinary prudence, therefore, would have dictated the sending forward of information of his position, or the putting out of danger signals. Had he done either of these things the collision would not have occurred. The collision having been caused by the gross negligence of the conductors, the question arises whether the company is responsible to the plaintiff for the injuries which that collision inflicted upon him. The general liability of a railroad company for injuries caused by the negligence of its servants to passengers and others not in its service is conceded. It covers all injuries to which they do not contribute. But where injuries befall a servant in its employ, a different principle applies. Having been engaged for the performance of specified services, he takes upon himself the ordinary risks incident thereto. As a consequence, if he suffers by exposure to them, he cannot recover compensation from his employer. The obvious reason for this exemption is that he has, or in law is supposed to have, them in contemplation when he engaged in the service, and that his compensation is arranged accordingly. He cannot, in reason, complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid. There is also another reason often assigned for this exemption—that of a supposed public policy. It is assumed that the exemption operates as a stimulant to diligence and caution on the part of the servant for his own safety as well as that of his master. Much potency is ascribed to this assumed fact by reference to those cases where diligence and caution on the part of servants constitute the chief protection against accidents. But it may be doubted whether the exemption has the effect thus claimed for it. We have never known parties more willing to subject themselves to dangers of life or limb because, if losing the one, or suffering in the other, damages could be recovered by their representatives or themselves for the loss or injury. The dread of personal injury has always proved sufficient to bring into exercise the vigilance and activity of the servant. But, however this may be, it is indispensable to the employer's exemption from liability to his servant for the consequences of risks thus incurred that he should himself be free from negligence. He must furnish the servant the means and appliances which the service requires for its efficient and safe performance, unless otherwise stipulated; and if he fail in that respect, and an injury result, he is as liable to the servant as he would be to a stranger. In other words, while claiming such exemption he must not himself be guilty of contributory negligence. When the service to be rendered requires for its performance the employment of several persons, as in the movement of railway trains, there is nec essarily incident to the service of each the risk that the others may fail in the vigilance and caution essential to his safety. And it has been held in numerous cases, both in this country and in England, that there is implied in his contract of service in such cases that he takes upon himself the risks arising from the negligence of his fellow-servants while in the same employment, provided always the master is not negligent in their selection or retention, or in furnishing adequate materials and means for the work; and that if injuries then befall him from such negligence, the master is not liable. The doctrine was first announced in this country by the supreme court of South Carolina in 1841, in Murray v. Railroad Co. 1 McMull. 385, and was affirmed by the supreme court of Massachusetts the following year in Farwell v. Boston & Worcester R. Co. 4 Metc. 49. In the South Carolina case, a fireman, while in the employ of the company, was injured by the negligence of an engineer also in its employ, and it was held that the company was not liable, the court observing that the engineer no more represented the company than the fireman; that each in his separate department represented his principal; that the regular movement of the train of cars to its destination was the result of the ordinary performance by each of his several duties; and that it seemed to be on the part of the several agents a joint undertaking where each one stipulated for the performance of his several part; that they were not liable to the company for the conduct of each other, nor was the company liable to one for the conduct of another, and that, as a general rule, when there was no fault in the owner, he was only liable to his servants for wages. In the Massachusetts case, an engineer employed by a railroad company to run a train on its road was injured by the negligence of a switch-tender also in its employ, and it was held that the company was not liable. The court placed the exemption of the company, not on the ground of the South Carolina decision, that there was a joint undertaking by the fellow-servants, but on the ground that the contract of the engineer implied that he would take upon himself the risks attending its performance; that those included the injuries which might befall him from the negligence of fellow-servants in the same employment; and that the switch-tender stood in that relation to him. And the court added that the exemption of the master was supported by considerations of policy. "When several persons," it said, "are employed in the conduct of one common enterprise or undertaking, and the safety of each depends on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common employer will not take such precautions and employ such agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other." And to the argument, which was strongly pressed, that though the rule might apply where two or more servants are employed in the same department of duty, where each one can exert some influence over the conduct of the other, and thus, to some extent, provide for his own security, yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree control or influence the conduct of another, it answered that the objection was founded upon a supposed distinction, on which it would be extremely difficult to establish a practical rule. "When the object to be accomplished," it said, "is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case." And it added, "that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the 385 *384 988* servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied." 4 Metc. 49, 60. The opinion in this case, which was delivered by Chief Justice SHAW, has exerted great influence in controlling the course of decisions in this country. In several states it has been followed, and the English courts have cited it with marked commendation. The doctrine of the master's exemption from liability was first distinctly announced in England in 1850 by the court of exchequer in Hutchinson v. York, N. C. & B. Ry. Co. 5 Exch. 343. Priestley v. Fowler, 3 Mees. & W. 1, which was decided in 1837, and is often cited as the first case declaring the doctrine, did not directly involve the question as to the liability of a master to a servant for the negligence of a fellow-servant. In that case a van of the defendant in which the plaintiff was carried was out of repair, and overloaded, and consequently broke down, and caused the injury complained of; but it did not appear what produced the defect in the van, or by whom it was overloaded. The court, in giving its decision against the plaintiff, observed that if the master was liable, the principle of that liability would "carry us to an alarming extent;" and in illustration of this statement said that if the owner of a carriage was responsible for its sufficiency to his servant, he was, under the principle, responsible for the negligence of his coach-maker, or harnessmaker, or coachman, and mentioned other instances of such possible responsibility to a servant for the negligence of his fellows, concluding that the inconvenience of such consequences afforded a sufficient argument against the application of the principle to that case. The case, therefore, can only be considered as indirectly asserting the doctrine. At any rate, the Hutchinson Case is the first one where the doctrine was applied to railway service. There it appeared that a servant of the company who, in the discharge of his duty, was riding on one of its trains, was injured by a collision with another train of the same company, from which his death ensued; and it was held that his representatives could not recover, as he was a fellow-servant with those who caused the injury; and the court said that whether the death resulted from the mismanagement of the one train or the other, or of both, did not affect the principle. The rule was applied at the same time by that court to exempt a master-builder from liability for the death of a bricklayer in his employ, caused by the defective construction of a scaffolding by his other workmen, by reason of which it broke, and the bricklayer at work upon it was thrown to the ground and killed. Wigmore v. Jay, 5 Exch. 354. The doctrine assumes that the servant causing the injury is in the same emyloyment with the servant injured; that is, that both are engaged in a common employment. The question in all cases therefore is, what is essential to render the service in which different persons are engaged a common employment? And this question has caused much conflict of opinion between different courts, and often much vacillation of opinion in the same court. In Bartonshill Coal Co. v. Reid, and the Same Co. v. McGuire, reported in 3 Macq. H. L. Cas. 266, 300, decided in 1858, the parties injured were miners employed to work in a coal-pit; and the party whose negligence caused the injury was employed to attend to the engine by which they were let down into the mine and brought out, and the coal was raised which they had dug; and it was held that they were engaged in a common work, that of getting coal from the pit. "The miners," said the court in the latter case, "could not perform their part unless they were lowered to their work; nor could the end of their common labor be attained unless the coal which they got was raised to the pit's mouth; and, of course, at the close of their day's labor the workmen must be lifted out of the mine. Every person who engaged in such an employment must have been perfectly aware that all this was incident to |