Missouri Pac. Ry. Co. v. Texas & P. Ry. Co.

31 F. 527, 1887 U.S. App. LEXIS 2638

Opinion

Pardee, J.

The evidence in the case shows that the petitioner, a brakeman, was injured by the negligence of the engineer, his own negligence contributing thereto, while they were both employed on the same freight train. The master’s report is practically to the same purport, but the master seems to find that the petitioner’s negligence was mitigated to slight negligence for which he was not responsible, because of his reasonable faith that the engineer would not be guilty of any negligence. The evidence shows clearly that, but for the primary negligence of the petitioner J he would not have been inj ored, although the engineer had started his train as he did without proper signal. It also seems clear in this case that the brakeman and the engineer were fellow-servants; and, as the general rule exempting the common master from liability to a servant for injuries caused by the negligence of a fellow-servant is recognized by the courts of the United States, (see Hough v. Railway Co., 100 U. S. 213,) the petitioner should not recover from the receivers in this case, unless in some way they can be shown to be in fault. A careful examination of the evidence, and of the master’s report, shows no fault of commission nor omission on the part of the receivers.

An order will be entered sustaining the exceptions to the special master’s report, and dismissing the petition of said E. M. Pierpont.