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They were both servants of the railway comThe principles of law in relation to the lia- pany engaged in a common employment, to wit: bility of a master for an injury to his servant the operation of a single train of cars. The serwhile engaged in the performance of duties un- vice of the engineer was confined to the care and der his employment, have been so frequently management of the engine, the motive power of considered and declared by this court, and upon the train, while the defendant was employed such varied statements of fact, that one might upon the cars, and his duty, among other things, be justified in assuming that the law upon this was to tighten and loosen the brakes upon the subject, in all its bearings, has been fully set- Although the duties of these servants were tled. The respective rights and duties of em- not identical, yet as the services of each were ployer and employee, sound in contract. The necessary to the accomplishment of a single puremployer implicitly engages to use reasonable pose, namely, the movement of the train, they care and diligence to secure the safety of the were fellow servants in a common employment; employee, and among other things, to exercise so that, if this relation, and none other, existed reasonable care in the selection of prudent fel- between them, the risk of injury to either by low servants. He also engages that every one the carelessness of the other was assumed by placed in authority over the servant, with power each, and the common master or employer would to control and direct him in the performance of not be liable. See Whaalan v. M. Ř. & L. E. R. his duties, will exercise reasonable care in pro- R. Co. 8 Ohio St 249; Man ville v. C. & L. R. R. viding for his safety, whether such superior be a Co. 11 Ohio St. 417; P., Ft. W. &. C. Ry. Co. . fellow servant or not in the ordinary sense. The Devinney, 17 Ohio St. 198; Kumber, adm'r of superior, in his relation to the subordinate ser- Larkin, v. Junction R. R. Co., 33 Ohio St. 150. vant, is, in the language of Judge Day, in Rail- This brings us to inquire whether there was way Co. v. Lewis, 33 Ohio St. 196, the alter ego of such relation of superior and subordinate existthe master. This doctrine, which imputes to the ing between the engineer and brakeman as to master the negligence of a servant to whom he render the common employer responsible for inhas delegated authority over other servants, has juries to the latter caused by the negligence of been firmly ingrafted in the jurisprudence of the former. The crew consisted of a conductor, this State ever since the case of the Little Mi-engineer, fireman and two brakemen. Unquesami R. R. Co. v. Stephens, 20 Ohio R. 416. See tionably the train was under the control of the also C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201, conductor and all the train hands were subject and L. S. & M. S. R. R. Co. v. Lavally, 36 Ohio to his control and direction. By the rules of the St. 221, and cases therein cited.

company, "conductors are required to see that On the other hand, the servant assumes all or- brakemen are attentive to duty. Two brakedinary risks of the employment against which men must at all times, be stationed on the top ordinary care on the part of the master does not of the cars of each freight train when the train provide, and among the risks thus assumed by is in motion.

is in motion. The speed of freight trains must the servant, are those which may result from the be governed by the use of brakes when descendcarelessness or negligence of fellow servants. ing grades," so as not to exceed 15 miles


hour. Indeed, in the case before us, it is not claimed Conductors of all trains are required to keep a by the defendant in error that the railroad com- brakeman on the last car, while the train is in pany should be held liable, if it were free from motion." "Freight conductors are required to negligence, actual or imputed; and it is con- ride on a part of their train where they can see ceded, that such would be the case, if the engi- that their men attend to their duties, can signal neer and himself were mere fellow servants in a them on descending grades and can assist in apcommon employment.

plying the brakes in case of danger.” “Brake Nor is it denied by the railroad company, that men must use judgment in applying the brakes it would be liable if the injuries of the defend. when approaching a station and endeavor to ant in error were caused by the carelessness of stop the train at the right point without the neone of its employees, who was entrusted with cessity of the engine sounding the whistle.” power to control and direct the defendant in er- These rules as well as the weight of all the testiror in the discharge of his duties in their com- mony, show that brakemen are under the genmon employment.

eral control and direction of the conductor. The contention between the parties is not, Indeed, the only pretense found in the testiwhether a given proposition is or is not law, but mony, for the claim of defendant in error that rather as to a question of mixed fact and law; / brakemen are subordinate to the engineer of the namely, whether such relation of superior and train, is found in the fact that it is the duty of subordinate existed between the engineer of the brakemen to observe and obey certain signals train and the defendant in error as rendered the given by the enginer, to wit: Rule 18. “One plaintiff in error responsible for an injury to the long blast of the whistle is a warning of the apfatter, caused by the carelessness of the former. proach of a train; une short blast is a signal for The case is one for the application, rather than putting down brakes and stopping the train; the definition of legal principles. We must two short blasts for relieving the brakes and therefore ascertain the exact relation which ex- starting the train; three, for backing the train." isted between the engineer and the defendant in It is contended that these signals are in the naerror.

ture of orders or commands which the engineer is authorized to give to brakemen which they Day, without quoting from the case, further are bound to obey; and hence, the relation of than 4th proposition in the syllabus, which superior and subordinate is created. A majority reads as follows: "Where an engineer and of the court do not so understand either the pur- brakeman were employed by a railroad company pose or effect of the rule. These signals are so in operating the same train, and there was no named properly, and are intended to notify all evidence to prove that the brakeman was placed concerned of the thing signified. They are ad- in a position of subordination to the engineer, dressed to the conductor as well as brakemen, other than what may be implied from the rules and it is the duty of the conductor to see that of the company, requiring the engineer to give brakemen perform the duty signified. This duty certain signals as "a notice" to apply or loose is imposed upon the brakemen by force of the the brakes, and requiring the brakeman to manrule itself, and not by virtue of any authority age the brakes "according to circumstances and Vested in the engineer over the brakemen. The the signals of the engineer,” and placing the signal is a mere notice. The rule is the order of brakeman while on the train, in subordination the company to the brakemen directly. Sup- to the conductor. Held, that the engineer and pose a train is signaled by a station agent, as brakeman were servants of the company engaged this train was, to stop for orders. It thereby in a common service; that the relation of supebecomes the duty of the conductor, as well as of rior and subordinate did not exist between them; each employee on the train, to stop for orders ; and that, therefore, the company was not respon: and yet, no one can contend that such station sible to the brakeman for an injury occasioned agent, who gives the signal, is the superior, and by the negligence of the engineer.” train crew subordinate employees of the com- True, in the case before us, several witnesses pany within the meaning of rule under consider testified that, on the road of plaintiff in error, ation. A variety of signals, under a variety of brakemen are subordinated to the engineer of circumstances, are required to be given by differ the train, but upon the whole record, it is quite ent employees of the company, to signify that an evident that the information of the witnesses was occasion exists for the performance of a particu- based solely upon the rules above quoted in relar duty, but, it would be absurd to hold that in gard to the giving and obeying signals for seteach case, the employee giving the signal is a ting or relieving brakes, so that, in point of fact, superior servant, to whom all others, to whom this case in this respect is exactly similar to information is thus communicated, are subordi- Lewis' case; and a majority of the court can see nated; so that the company would be responsi- no good reason for overruling that decision. ble to them for any act of negligence of the em- Judgments reversed and cause remanded. ployee who gave the signal, whether such negli- OKEY, C. J., dissenting. gence was in giving the signal or in the per- A railroad company is liable in this State for formance of other duties.

the negligence of a conductor, causing injury to For it must be observed, that negligence or a brakesman, upon the ground that the company carelessness is not affirmed of the act of the en- has placed the conductor in a position of superigineer in giving either the signal to tighten the ority to the brakesman. But there is no magic brakes or to loosen them. The only negligent in the word conductor; and if the brakesman is and careless act charged against him, was in bound to obey the orders of the engiforcing the engine forward violently, without neer in applying and loosening brakes, as he giving time to the brakemen to loosen the brakes. clearly is, and while obeying such orders is inThe signal informed the brakemen that the jured by the negligence of the engineer, it is train was about to go forward. The rule is, “two difficult to find satisfactory ground for holding

“ short blasts for relieving the brakes and starting that the company is not equally liable. Arguthe train." The matter of applying the steam ment, however ingenious, based on a distinction to the engine, and starting the train forward, between such cases, has for its support no valid was under the control of the engineer alone, and reason, and is necessarily fallacious. In my although we think, upon the testimony, the act opinion the law of this state is, that whenever was recklessly performed and caused a very se- a'master has in his employ two or more persons, rious injury to the brakeman, it was. neverthe- and the nature of their employment is such that less, within the risks assumed by the defendant one is required to give orders to the others, who in error when he engaged with the plaintiff in are bound to obey, and while doing so are inerror to discharge the duties of brakeman on the jured by the negligence of the person placed in train.

such position of superiority, the master is liable, This conclusion of the court is fully sustained and it is immaterial whether the negligent perby the decision of the Supreme Court Commis- son was known as conductor, engineer, or by sion in P. Ft. W. & C. Ry. Co. v. Lewis, 33 Ohio other designation. St. 196. That case was an action by a brakeman In this case the company is clearly liable, in against the railway company for an injury my judgment, by a just application of the princaused by the negligence of the engineer, and the ciple I have stated. By the very nature of the negligent act complained of was in starting the employment, the brakesman was subordinate to train, while the brakeman was in a dangerous the engineer. But that view is much strengthposition, without giving the required signal. ened by reference to the "general rules for run

We refer to the very able opinion of Judge | ning trains," which are made part of the record.





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In looking into those rules I find they do not and the decision of the majority in this case is, support the theory that the conductor alone is in my judgment, equally erroneous. su perior to the brakesman. On the contrary, White, J., dissented on the same ground. the engineer is, under the rules of the company, [This case will appear in 37 O. 8.] in many things as much superior to the brakesman, and as much beyond his control or advice,

INSURANCE-LOSS LIABILITY as the conductor, and the brakesman is quite as likely to be injured by the negligence of the for

SUPREME COURT OF OHIO. mer as the latter. The company speaks as emphatically and as potently through the engineer

DETROIT FIRE & MARINE INs. Co. as through the conductor. Take the very case under consideration. Pataskala was not a regu

COMMERCIAL MUTUAL INS. Co. lar stopping place for this freight train. The conductor gave no signal to stop, but the engineer,

March 28, 1882. in pursuance of a rule of the company,'aid give

Where an insurance company, after having taken a the signal for that purpose. The rules provide, risk and reinsured in another company to indemnify inter alia: “One short blast is the signal for

itself against loss on its polivy, discharges its liability putting down the brakes and stopping the train;

by the payment of a less sum than that for which the or

iginal Insurance was effected, the sum so paid by it will be two short blasts for relieving the brakes and taken as the amount of damage sustained, and the measstarting the train. * * * When signal bell ure of indemnity to be recovered from the reinsuring on engine is rung by conductor to stop at next

company; provided such pum is within the amount of

the reinsurance policy, and does not exceed the amount station, the engineer will answer with two short of actual loss, and such policy contains no condition for whistles. Engineers will also give the same signal proraling loss or limiting liability. when it is seen to be necessary to stop at a station at Error to the District Court of Cuyahoga which he has not been signaled to stop by the conduc- County. tor.Engineers “will be held equally responsi- The petition alleged that on the 10th of May, ble with the conductors in case of any violation 1871, the plaintiff, the Commercial Mutual Inof the rules and regulations of the road.”

surance Company, issued its policy of insurance, Here the engineer gave the signals because causing $20,000 to be insured upon the body, the company, by fixed rules, commanded him to tackle, apparel, and other furniture, of the give thein, without waiting for any order of the Schooner called the “ John Burt," from noon of conductor, and the brakesman obeyed the signals the 6th day of May, 1871, to noon of the 5th day because it was his imperative duty to do so, under

of December, 1871. That on the same day, the the rules of the company. And the same rules defendant, the Detroit Fire & Marine Insurance which required the engineer to give the signals, Company, on account of the Commercial Mutual made it his duty, when the brakes were loosened,

Insurance Company-loss if any, payable to

to put on more steam so as to increase the speed.

them-made re-insurance, and caused $5,000, to The engineer, in performing this last duty, how

be insured upon said Schooner, from noon of said ever, was guilty of gross negligence; he started 6th day of May, to noon of said 5th day of Decemthe train so suddenly as to break it into three

ber. That in and by said policy of re-insurance, sections and maim Ranney for life; and it is

the said vessel, with her tackle, apparel and fair to say that Ranney would not have been in- other furniture was valued at $25,000; and the jured if he had not been at the very moment

limit of insurance upon the vessel interest thereobeying the orders of the company, given by insured, was fixed at $20,000. That with the through the engineer, to loosen the brakes. exception of the names of parties and amount

insured, the terms, conditions, and stipulations The conductor performed no office whatever at or before reaching Pataskala station-there was

of said 're-insurance policy, were substantially none for him to perform. The injury would by the re-insured company to the owner of the

the same, as those contained in the policy issued have happened the sume way, to the same

vessel. That on the 14th of October, 1871, the extent, and from the same cause, i. e. the negligence of the con papy acting through the engi- lakes, sunken, and so damaged, that she was

said vessel was, by the perils and dangers of the neer, if the conductor had been absent from the

abandoned as a total loss, and the abandonment train. Shall we segregate the acts of the engi

was accepted. neer performed in the few moments which elapsed from the time of giving the signal to ap

The answer alleged that before the commence

ment of said action, the plaintiff settled and comply the brakes until the injury occurred, holding that in giving the signals he was the com

promised with the owner of said vessel, his claim

of $20,000 under the policy issued to him, for the pany's alter ego, and in putting on more steam a

sum of sixty cents on the dollar, to wit, $ 12,000; fellow servant of Ranney-bis right hand the company, his left a mere fellow servant? Surely and discharge from all liability under said policy;

and obtained from the owner an absolute release there is no real foundation for any such distinc

that at the time of said settlement and compro tion.

mise, the plaintiff' was not in a bankrupt or inRailway Co. v. ,

Lewis, 33 Ohio St. 196, was, 1 solvent condition ; that in accordance with the think, wrongly decided, and of the same opinion terms of said settlement and compromise, the were two of the five judges who heard that case, defendant paid to the plaintiff $3,000, or sixty


per cent. of the amount insured on said vessel come a certainty, and the re-insured has actually by said policy of re-insurance; and paid the same, sustained a loss, he is to be indemnified only in full satisfaction and discharge of all claim partially and not completely; at least to the extent against it, under said re-insurance policy. of the amount named in the policy of re-insur

To the foregoing answer the plaintiff below ance. demurred generally, and the court sustained the Upon this subject, there are but

few adjudged demurrer, the defendant, not desiring to plead

None are to be found in the English books. further, judgment was thereupon rendered in From a very early day re-insurance has been inplaintiff's favor for the full amount of its claim; terdicted in that country by act of Parliament, and at the following term of the district court (19 Geo. 2, Ch. 37, sec. 4), Mr. Arnold states that this judgment was affirmed.

this statute arose from the fact that re-insurance LONGWORTH, J.

had come to be employed as a mode. of speculatThe original insurer became liable to the ing in the rise and fall of premiums, and the leg. owner of the vessel for a total loss, but actually islature foresaw that it might be used as a cover paid him only $12,000, being sixty per cent of for wager policies, 1 Arnold on Ins. 290. Andree the amount of the policy, in full discharge of its v. Fletcher, 2 T. R. 161, is an emphatic declaraliability. The whole amount of re-insurance tian of the meaning and force of this statute. was $5,000. Shall the re-insured company re- Whatever may have been the reasons for its cover the full amount of its policy, or only a pro adoption, however, it has certainly never been rata part of the latter sum, at the rate of sixty recognized as a part of the common law of this cents on the dollar?

country. Our courts have refused to so regard The contract of insurance has always been re- it, or to find anything in re-insurance contrary garded as one of indemnity, the object being to to public policy and fair dealing. Upon this protect the insured from any and all damage oc- subject, Mr. Justice Sedgwick said in the early casioned by the happening of the loss insured case of Merry v. Prince, 2 Mass. 176, “That & against, not exceeding the amount of the policy. contract of re-insurance is not prohibited by the

Re-insurance is thus defined by Mr. May: “It principles of the common law is admitted by the is a contract of indemnity to the re-insured, parties. It is a contract which, in itself, seems whatever be the subject matter, and binds the perfectly fair and reasonable, and might be prore-insurer to pay to the re-insured the loss sus- ductive of very beneficial consequences to those tained in respect to the subject insured, to the concerned in this important branch of commerce; extent for which he is re-insured, and not necus- but because it was much abused, and turned to sarily differing in form from an original insur- pernicious purposes it was prohibited by an act ance.” May on Insurance 11. In the case be- of the Parliament of Great Britain." In this fore us the policy does not differ in form from the case he goes on to show conclusively that the original policy, although it may be true, as I am principle

of that statute has never found a place informed it is, that policies of re-insurance gen- in the insurance law of the United States." See erally contain a condition that the loss, if any, also Merchant's & M. Ins. Co. v. Washington Ins. shall be payable pro rata, at the same time and Co., 1 Handy 408, 425. This will serve to ex. in the same manner with the re-insurance com- plain the fact that the English reports are barpany, yet no such condition is expressed in the ren of authority upon the subject. under investipolicy before us. Is it to be implied ? . To an- gation. swer this question we must have a clear idea of Since the decision of the French Court of Adthe nature and object of such a contract. Par-miralty at Marseilles, in December, 1848, cited sons in his work on Marine Insurance, vol. 1 p. in Emerigon, Traiti des Assurance, Meredith's

“In all cases of, what- Translation 202, (but no other report of which I ever may be their ground, the re-insured stands, have been able to find), it has been uniformly as to his insurers, in the same relation in which held, that, where the first insurer becomes inthe insured stands to him," "and it may be said solvent, and, on a compromise with his creditors, in general, that, wherever the insurance is not pays only a certain percentage of the loss, the reon the property of the insured, but against risks insurer is nevertheless, bound to pay the re-inwhich he bears, this is in the nature of re-insur- sured the full amount of the loss to the extent of ance," (p. 303). And in Phillips on Insurance the re-insurance. The most carefully considered $ 374, this definition is given : “Re insurance case, and perhaps the leading case upon this subis á contract whereby one party, called the re-inject is Hone and Bokee v. Mutual Safety Ins. Co. gurer, in consideration of a premium paid to him, i Sandfurd 137, subsequently affirmed in 2 : agrees to indemnify the other against the risk Comstock 235. In this case the decision of the assumed by the latter, by a policy in favor of a French Admiralty Court is followed, and the third party."

And it has been held that the court repeat with approval the language of original assured cannot assert any interest in a Emerigon and · Roccus, to the effect that the repolicy of re-insurance. Herkenrath v. Ins. Co., 1 insurer is bound to pay the whole loss which is Barb. Ch. 363.

incurred by the first insurer. If it bestrue, then, that it is the risk which is Ronlay Paty ard Alanzet, two distinguished insured against, and the contract is intended to modern french authors, are also cited as speak furnish complete indemnity, it is difficult to under- | ing to the same effect. stand any reason why, when such risk has be- In Blackstone di Alemannia Ins. Co. 56 N. Y.

299, says:


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104, the same doctrine is declared to be definitely is held upon the same defined uses. Railway Co. v. settled. See also to same effect, Ins. Co.

Cumminsville, (14 Ohio S. 524) approved and followed. Cashow, 41 Md. 59, and Eagle Ins. Co. v. Lafay

Error to the District Court of Scioto County. ette Ins. Co., 9 Ind. 443.

On July 3, 1877, the defendant in error, David If it be true, then, that the re-insurer is liable Lawrence and others, filed their petition in the to the re-assured (to the extent of the sum named Court of common Pleas of Scioto County to enin the policy) for the full amount of the loss, for join the Scioto Valley Railway Company, the which only a liability has attached to the origi- plaintiff in error, from constructing its railroad

a nal insurer, but which he has not paid and can- along and on Gay street in the city of Portsnot pay on account of insolvency, how much mouth in said county. more must it be true that such obligation exists The plaintiffs aver that they are the owners of where the re-assured has not only incurred a li- valuable lots abutting on said street; that said ability but has actually paid the full amount for street is dedicated to public use as a street, the which he asks indemnity? If there existed fee thereof being vested in said city in trust for room for doubt as to how this question should be said use. They also aver that said railway comanswered the answer would be found in the de- pany has obtained from said city of Portsmouth, cision of Ill. Mut. Ins. Co. v. Andes Ins. Co. 67 the right of way so far as said city has power to Ill. 362, which, as far as I am able to un- grant the same, to construct and build said railderstand it, is indistinguishable from the case at road over and along said Gay street, that the bar. In that case the element of insolvency did constryction of said railroad and the laying of not exist. The original insurer was liable to the track thereof along said street as contempay to the insured the sum of $6,000, in conse- plated in said grant of the right of way by said quence of the loss of the subject matter insured, city, and the running of locomotives and trains but actually paid only $600, in full discharge of thereon, will have the effect of rendering the the liability, the amount of the re-insurance was property of the plaintiffs in Gay street to a great $2,000, It was said by the court, that the re- extent worthless, and to deprive them of their assured would have been entitled to recover property in said street, and the private rights $600, had there been a clause in the policy pro- and easements which they respectively now rating the loss.

have in the same. It is also averred that such The claim of the plaintiff in error is based contemplated use of said street is not only an esupon the theory that, in respect to the subject sential diversion of it to other purposes than matter of insurance, the re-insured and the re- those for which it was acquired, but is such an insurer are engaged in a common venture and enlargement of its uses as to accumulate materiought thereupon to bear the loss in ratable pro- ally additional burdens upon the land, and deportion. In the light of the authorities this stroy or impair the incidental rights of the view is wholly untenable. It pre-supposes a plaintiffs appurtenant to their lands abutting certain privity of contract to exist between the on said street, and that the damages resulting original' insured ani the re-insurer, the exist- therefrom will be irreparable. ence of which is denied by every authority The answer of the defendant, put in issue the which has spoken upon the topic. I am con- averments of the petition as to the injurious eftent to close this subject by quoting the lan- fects upon the property of the plaintiffs, resultguage of Emerigon: * The re-insurance is ab- ing from the construction and operation of the solutely foreign to the original assured, with railroad, and relied upon the grant from the city whom the re-insurer contracts no sort of obliga- as a bar to the relief sought. ition.” Traiti des Assurance, Meredith's Trans- On the trial the court found the issues in favor lation, p. 201.

of the plaintifts and granted the injunction as Judgment affirmed.

prayed for, unless the railroad company, as [This case will appear in 37 0. S.]

against the plaintiffs, should first acquire the

right to construct said road, under proceedings RAILROAD-CONSTRUCTION IN A STREET

instituted as required by law for the appropriaOF A CITY-INJUNCTION.

tion of private property.

On error this judgment was affirmed by the SUPREME COURT OF OHIO.

district court, and the present proceeding is in

stituted in the court to reverse both judgments. THE SCIOTO VALLEY RAILWAY


This case is governed by the principles laid

down in Street Railway v. Cumminsville, (14

March 28, 1882. Ohio St. 524); and we are not disposed to depart 1. Where the construction of a railroad in a street of a from the ruling in that case. city, will work material injury to the abutting property, 1. As to the claim of the plaintiff in error such construction may be enjoined, at the suit of the owners, until the right to construct such road in the

that the abutting lot owners will sustain no ap street shall first be acquired, under proceedings insti- preciable damage by the construction of the rail. tuted against such owners as required by law for the ap- road on the street. propriation of private property.

This question was put in issue by the plead2." In such case it is immaterial whether the fHe is vested in the city or in the abutting owners, so long as it

ings and was found by the court below in favor

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