Northern Pacific Railway Company v. Dixon/Dissent White
Mr. Justice White, with whom concurred the CHIEF JUSTICE, Mr. Justice Harlan, and Mr. Justice McKenna, dissenting:

As it is given to me to understand the ruling now made, it reverses many previous decisions of this court, and introduces into the doctrine of fellow servant, as hitherto applied in those decisions, a contradiction which will render it impossible in the future to test the application of the rule of fellow servant by any consistent principle.

It is undoubtedly true that in many decisions of state courts of last resort the rigor of the rule of fellow servant has been assauged by an extension of two conceptions: the one designated as 'the department theory,' and the other as the 'doctrine of vice principal.' By the application made of the first of these in the decisions referred to the relation of fellow servant would not exist in any case where the servants were working in separate departments, even although engaged in a single enterprise or common employment. By the second, where even a limited suthority was possessed by a particular employee, such authority would cause him not to be a fellow servant with those over whom the authority was exercised.

But the decisions of this court, whilst not rejecting absolutely either the department even a limited authority was possessed by with practical uniformity, refused to adopt the broad import given to those theories as above stated. Accordingly, it has been consistently held that the fact of separate departments did not destroy the relation of fellow servant unless the departments were substantially so distinct as to cause them to be independent one of the other to such an extent that the persons engaged in one or the other were not really employed in the same business. And so also as to the doctrine of vice principal: it has been uniformly held that it did not apply to every limited exercise of authority, but was only applicable in cases where the person charged to be a vice principal possessed such general authority and supervision over the business as to cause him in effect to stand in the relation of master to those employed under him. But whilst thus declining to fritter away the rule of fellow servant by a latitudinarian application of the department and vice principal theories, such theories have always been applied by the decisions of this court wherever a given case was embraced in the doctrine as expounded in the rulings of this court above referred to. Besides, it has been declared by an unbroken line of authority in this court that, wherever there rests upon the master a positive duty which the law has imposed upon him towards his servants, liability of the master for a failure to perform such positive legal duty could not be escaped by a resort to the principle of fellow servant, because, in an action for damage occasioned by the neglect of the master to perform such positive duties, the doctrine of fellow servant had no application. I content myself with referring to some of the leading and more recent cases of this court, establishing all the propositions which I have previously stated. Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914; Northern P. R. Co. v. Hambly, 154 U.S. 349, 38 L. ed. 1009, 14 Sup. Ct. Rep. 983; Central R. Co. v. Keegan, 160 U.S. 259, 40 L. ed. 418, 16 Sup. Ct. Rep. 269; Northern P. R. Co. v. Peterson, 162 U.S. 346, 40 L. ed. 994, 16 Sup. Ct. Rep. 843; New England R. Co. v. Conroy, 175 U.S. 323, 44 L. ed. 181, 20 Sup. Ct. Rep. 85.

The inapplicability of the doctrine of fellow servant to a violation by the master of a positive duty resting on him, often stated in previous decisions, was reiterated in Baltimore & O. R. Co. v. Baugh, 149 U.S. 387, 31 L. ed. 781, 13 Sup. Ct. Rep. 914, and was fully restated in Central R. Co. v. Keegan, 160 U.S. 259, 40 L. ed. 418, 16 Sup. Ct. Rep. 269, where it was said (p. 263, L. ed. p. 421, Sup. Ct. Rep. p. 270):

'We held in Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914, that an engineer and fireman of a locomotive engine running alone on a railroad, without any train attached, when engaged on such duty, were fellow servants of the railroad company; hence, that the fireman was precluded from recovering damages from the company for injuries caused, during the running, by the negligence of the engineer. In that case it was declared that: 'Prima facie all who enter the employment of a single master are engaged in a common service, and are fellow servants. . . . All enter in the service of the same master, to further his interests in the one enterprise.' And whilst we in that case recognized that the heads of separate and distinct departments of a diversified business may, under certain circumstances, be considered, with respect to employees under them, vice principals or representatives of the master as fully and as completely as if the entire business of the master was by him placed under the charge of one superintendent, we declined to affirm that each separate piece of work was a distinct department, and made the one having control of that piece of work a vice principal or representative of the master. It was further declared that 'the danger from the negligence of one specially in charge of the particular work is as obvious and as great as from that of those who are simply coworkers with him in it; each is equally with the other an ordinary risk of the employment,' which the employee assumes when entering upon the employment, whether the risk be obvious or not. It was laid down that the rightful test to determine whether the negligence complained of was an ordinary risk of the employment was whether the negligent act constituted a breach of positive duty owing by the master, such as that of taking fair and reasonable precautions to surround his employees with fit and careful coworkers, and the furnishing to such employees of a reasonably safe place to work and reasonably safe tools or machinery with which to do the work, thus making the question of liability of an employer for an injury to his employee turn rather on the character of the alleged negligent act than on the relations of the employees to each other, so that, if the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is liable therefor.'

And the Keegan Case was cited approvingly in Northern P. R. Co. v. Peterson, 162 U.S. 346, 40 L. ed. 994, 16 Sup. Ct. Rep. 843, and New England R. Co. v. Conroy, 175 U.S. 323, 44 L. ed. 181, 20 Sup. Ct. Rep. 85.

With the rules thus conclusively determined by the prior decisions of this court, let me come to consider the questions certified, in the light of the facts stated in the certificate. Now, it is undoubted from those facts that the accident was caused by an erroneous order issued by the train despatcher in charge of the movement of all the trains, and it is equally undoubted that the fatal error committed by the train despatcher was caused by the neglect of an operator on the line of the railroad with whom the train despatcher communicated before he gave the erroneous order. To determine whether the doctrine of fellow servant applies to such a case it must be ascertained, first, whether the train despatcher was a fellow servant with those operating the train; and, second, if he was not, can the corporation avoid liability because the error of the train despatcher was occasioned by the wrong of an operator.

First. Whether it be considered in the light of the doctrine of vice principal as applied in the decisions of this court, or from the point of view of the positive duties of the master, it seems to me that the train despatcher was not the fellow servant of the men running the trains. The despatcher was a vice principal in the narrowest significance of that term. He represented the master as to the operation and movement of trains over the road. He formulated and transmitted the orders by which all were to be governed. The duty to obey his orders rested on those in charge of every train, and upon complying with this duty of obedience on their part their safety, as well as the safety of persons employed on or moved by every train, depended. As the duties of the train despatcher were of the character just stated, it must besides follow, in any view, it seems to me, that in performing them he was discharging a positive duty imposed by law upon the master. For it cannot, in reason, I submit, be questioned that the law placed a positive duty on the master to furnish a safe place to work and to give such orders as would save those who obeyed them from loss of life or limb. The opinions of this court in the cases already referred to leave no room for question on this latter proposition, and there are other decisions not previously referred to which treat it as elementary. Hough v. Texas & P. R. Co. 100 U.S. 213, 25 L. ed. 612; Union P. R. Co. v. Daniels, 152 U.S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Northern P. R. Co. v. Hambly, 154 U.S. 349, 38 L. ed. 1009, 14 Sup. Ct. Rep. 983; Northern P. R. Co. v. Peterson, 162 U.S. 346, 353, 40 L. ed. 994, 997, 16 Sup. Ct. Rep. 843.

The doctrine of positive duty was applied to the determination of whether a train despatcher was a vice principal, and performed the master's duty, by the court of appeals of the state of New York, in Hankins v. New York, L. E. & W. R. Co. 142 N. Y. 416, 25 L. R. A. 396, 40 Am. St. Rep. 616, 37 N. E. 466, and was also applied to the case of a train despatcher by the supreme court of Pennsylvania in Lewis v. Seifert, 116 Pa. 629, 2 Am. St. Rep. 631, 11 Atl. 514. Indeed, elaboration to show that a train despatcher is either a vice principal or one who, in the discharge of his functions, performs a positive duty of the master, is unnecessary, since the opinion of the court in this case proceeds upon the assumption that such is the case, and rests its conclusion upon the theory that the rule of fellow servant applies because the error of the train despatcher was caused by the fault of the operator. This, then, is the real issue.

Second. It being then established that the train despatcher was either a vice principal or performing the positive duty of the master, does the fact that his wrongful order for the movement of the train was occasioned by the neglect of the operator with whom he communicated give rise to the application of the rule of fellow servant? I fail to perceive how it can, if the principles which the previous decisions of this court have upheld are to be adhered to. Those principles are these: That where the act is one done in the discharge of a positive duty of the master, negligence in the performance of the act, however occasioned, is the act of the master, and not the act of a fellow servant. To say to the contrary, it seems to me, is to cause the decisions of this court to reduce themselves to two contradictory propositions: first, that a servant when injured by the act of another person cannot be allowed to recover by applying the broad construction given by many of the state courts to the vice principal and department theories, because the correct rule is the one which narrows those theories, and because, besides, the truer test by which to ascertain the existence of the relation of fellow servant is to determine whether the act done was one concerning a positive duty of the master; and, second, when a case is presented where the act complained of has been done by a vice principal, under the view adopted by this court of that theory, or involves a positive duty of the master, there may be no recovery because of the application of the doctrine of fellow servant to the case. The result being that recovery cannot be had in any event.

The decisions of this court leave no doubt as to the true rule on the subject. In Northern P. R. Co. v. Herbert, 116 U.S. 642, 29 L. ed. 755, 6 Sup. Ct. Rep. 590, speaking of the positive duty of the master, the court, through Mr. Justice Field, said (p. 647, L. ed. p. 758, Sup. Ct. Rep. p. 593):

'This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants can be transferred so as to exonerate him from such liability. The servant does not undertake to incur the risks arising from the want of sufficient and skilful colaborers, or from defective machinery, or other instruments with which he is to work. His contract implies that, in regard to these matters, his employer will make adequate provision that no danger shall ensue to him.'

In Northern P. R. Co. v. Hambly, 154 U.S. 340, 38 L. ed. 1009, 14 Sup. Ct. Rep. 983, the court, speaking through Mr. Justice Brown, thus approvingly referred to the Herbert Case (p. 357, L. ed. p. 1012, Sup. Ct. Rep. p. 985):

'The case of Northern P. R. Co. v. Herbert, 116 U.S. 642, 29 L. ed. 755, 6 Sup. Ct. Rep. 590, is an illustration of this principle. The plaintiff in this case was a brakeman in defendant's yard at Bismarck, where its cars were switched upon different tracks and its trains were made up for the road. He received an injury from a defective brake, which had been allowed to get out of repair through the negligence of an officer or agent of the company, who was charged with the duty of keeping the cars in order. It was held, upon great unanimity of authority, both in this country and in England, that the person receiving, and the person causing, the injury, did not occupy the relative position of fellow servants. See also Hough v. Texas & P. R. Co. 100 U.S. 213, 25 L. ed. 612; Union P. R. Co. v. Daniels, 152 U.S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756.'

In Union P. R. Co. v. Daniels, 152 U.S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756, an action for injury occasioned by the breaking of a defective car wheel, the existence of which defect had not been discovered owing to insufficient inspection, liability was sought to be escaped upon the plea that a sufficient number of competent inspectors had been employed. But, declaring the liability of the railroad company, the court said (p. 689, L. ed. p. 600, Sup. Ct. Rep. p. 758): 'There can be no doubt that, under the circumstances of the case at bar, the duty rested upon the company to see to it, at this inspecting station, that the wheels of the cars in this freight train, which was about to be drawn out upon the road, were in safe and proper condition, and this duty could not be delegated so as to exonerate the company from liability to its servants for injuries resulting from the omission to perform that duty, or through its negligent performance.'

Again, in Northern P. R. Co. v. Peterson, 162 U.S. 346, 40 L. ed. 994, 16 Sup. Ct. Rep. 843, speaking through Mr. Justice Peckham of the positive duties of the master, the court said (p. 353, L. ed. p. 997, Sup. Ct. Rep. p. 845):

'He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances, and machinery for the accomplishment of the work necessary to be done. He must exercise proper diligence in the employment of reasonably safe and competent men to perform their respective duties, and it has been held in many states that the master owes the further duty of adopting and promulgating safe and proper rules for the conduct of his business, including the government of the machinery, and the running of trains on a railroad track. If the master be neglectful in any of these matters, it is a neglect of a duty which he personally owes to his employees, and if the employee suffer damage on account thereof, the master is liable. If, instead of personally performing these obligations, the master engages another to do them for him, he is liable for the neglect of that other, which, in such case, is not the neglect of a fellow servant, no matter what his position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform as such.'

And these principles have been applied by the court of appeals of the state of New York to a case like the one at bar. Dana v. New York C. & H. R. R. Co. 92 N. Y. 639. In that case, in communicating verbally to a conductor an order received from the train despatcher, an error was committed by one Keifer, a telegraph operator, and a collision between trains resulted. In the course of the opinion, reversing the judgment which had been entered in favor of the railroad company, the court said (p. 642):

'For Keifer's act, in this respect, the defendant is clearly liable. The act he was required to do, and did perform, was one for which the master was responsible as a duty pertaining to itself, and as to it Keifer occupied the place of the master. Flike v. Boston & A. R. Co. 53 N. Y. 549, 13 Am. Rep. 545.'

Nor do I perceive the pertinency, as applied to the facts in the case at bar, of the extract made from the opinion of the supreme judicial court of Massachusetts in the case of Whittaker v. Bent, 167 Mass. 588, 589, 46 N. E. 121. The doctrine of transitory risk, as expounded in the case referred to and in previous cases in Massachusetts which that case followed, really amounts only to this: that where the work is of such a character that dangers which cannot be foreseen or guarded against by the master may, in the nature of things, suddenly and unexpectedly arise, there is no neglect of a positive duty owing by the master in failing, by himself or the agencies he employs, to anticipate and protect against that which the utmost care on his part could not have prevented. But this doctrine can have no application to a case like the one in hand, where the damage was occasioned by an act of obvious neglect in the performance of a positive duty.

That the doctrine of transitory risk applied in the Massachusetts cases relied upon has no application here, it seems to me, is made clear by the fact that it is stated in the certificate that the trains in question were extra trains, obliged by the rules of the company to run on no preordained schedule, and solely under the command of the despatcher, and that, to quote the certificate, 'a large proportion of its freight trains on this division were run as extra trains, and the times of their arrivals and departures were not shown on the regular time-tables, but their movements were made upon telegraphic orders issued by the train despatcher upon information furnished by telegraph to the train despatcher by its station agents and operators along the line of the railroad.' To apply the transitory risk theory to this condition of affairs, it seems to me, is to say that the methed permanently adopted by the company for running the class of trains in question is to be governed, not by that fact, but by the fictitious assumption that the trains were temporarily operated by wire alone. The consequence of the application of the doctrine of transitory risk to the condition of affairs shown in the certificate is, as I understand it, but to say that a railroad which chooses to operate its trains solely through orders of the train despatcher is a licensed wrongdoer as respects its employees, since thereby it is exempt from those rules of positive duty which the law would otherwise impose. The result is, besides, to decide that if a railroad adopts a regular schedule the law casts a positive duty on it as regards its employees, but that it may escape all such duty on the theory of transitory risk, if only the road elects to adopt no schedule, and to operate its trains solely by telegraph.

For the foregoing reasons I dissent.

I am authorized to say that the CHIEF JUSTICE, Mr. Justice Harlan, and Mr. Justice McKenna concur in this dissent. 

Notes