MOILVAINE, J.

The principles of law in relation to the liability of a master for an injury to his servant while engaged in the performance of duties under his employment, have been so frequently considered and declared by this court, and upon such varied statements of fact, that one might be justified in assuming that the law upon this subject, in all its bearings, has been fully settled. The respective rights and duties of employer and employee, sound in contract. The employer implicitly engages to use reasonable care and diligence to secure the safety of the employee, and among other things, to exercise reasonable care in the selection of prudent fellow servants. He also engages that every one placed in authority over the servant, with power to control and direct him in the performance of his duties, will exercise reasonable care in providing for his safety, whether such superior be a fellow servant or not in the ordinary sense. The superior, in his relation to the subordinate servant, is, in the language of Judge Day, in Railway Co. v. Lewis, 33 Ohio St. 196, the alter ego of the master. This doctrine, which imputes to the master the negligence of a servant to whom he has delegated authority over other servants, has been firmly ingrafted in the jurisprudence of this State ever since the case of the Little Miami R. R. Co. v. Stephens, 20 Ohio R. 416. See also C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201, and L. S. & M. S. R. R. Co. v. Lavally, 36 Ohio St. 221, and cases therein cited.

On the other hand, the servant assumes all ordinary risks of the employment against which ordinary care on the part of the master does not provide, and among the risks thus assumed by the servant, are those which may result from the carelessness or negligence of fellow servants. Indeed, in the case before us, it is not claimed by the defendant in error that the railroad company should be held liable, if it were free from negligence, actual or imputed; and it is conceded, that such would be the case, if the engineer and himself were mere fellow servants in a common employment.

Nor is it denied by the railroad company, that it would be liable if the injuries of the defendant in error were caused by the carelessness of one of its employees, who was entrusted with power to control and direct the defendant in error in the discharge of his duties in their common employment.

The contention between the parties is not, whether a given proposition is or is not law, but rather as to a question of mixed fact and law; namely, whether such relation of superior and subordinate existed between the engineer of the train and the defendant in error as rendered the plaintiff in error responsible for an injury to the latter, caused by the carelessness of the former. The case is one for the application, rather than the definition of legal principles. We must therefore ascertain the exact relation which existed between the engineer and the defendant in

error.

They were both servants of the railway company engaged in a common employment, to wit: the operation of a single train of cars. The service of the engineer was confined to the care and management of the engine, the motive power of the train, while the defendant was employed upon the cars, and his duty, among other things, was to tighten and loosen the brakes upon the cars. Although the duties of these servants were not identical, yet as the services of each were necessary to the accomplishment of a single purpose, namely, the movement of the train, they. were fellow servants in a common employment; so that, if this relation, and none other, existed between them, the risk of injury to either by the carelessness of the other was assumed by each, and the common master or employer would not be liable. See Whaalan v. M. R. & L. E. R. R. Co. 8 Ohio St 249; Manville v. C. & L. R. R. Co. 11 Ohio St. 417; P., Ft. W. &. C. Ry. Co. v. Devinney, 17 Ohio St. 198; Kumber, adm'r of Larkin, v. Junction R. R. Co., 33 Ohio St. 150.

This brings us to inquire whether there was such relation of superior and subordinate existing between the engineer and brakeman as to render the common employer responsible for injuries to the latter caused by the negligence of the former. The crew consisted of a conductor, engineer, fireman and two brakemen. Unquestionably the train was under the control of the conductor and all the train hands were subject to his control and direction. By the rules of the company, "conductors are required to see that brakemen are attentive to duty. Two brakemen must at all times, be stationed on the top of the cars of each freight train when the train is in motion. The speed of freight trains must be governed by the use of brakes when descending grades," so as not to exceed 15 miles per hour. "Conductors of all trains are required to keep a brakeman on the last car, while the train is in motion." "Freight conductors are required to ride on a part of their train where they can see that their men attend to their duties, can signal them on descending grades and can assist in applying the brakes in case of danger." "Brake men must use judgment in applying the brakes when approaching a station and endeavor to stop the train at the right point without the necessity of the engine sounding the whistle." These rules as well as the weight of all the testimony, show that brakemen are under the general control and direction of the conductor.

66

Indeed, the only pretense found in the testimony, for the claim of defendant in error that brakemen are subordinate to the engineer of the train, is found in the fact, that it is the duty of brakemen to observe and obey certain signals given by the enginer, to wit: Rule 18. One long blast of the whistle is a warning of the approach of a train; one short blast is a signal for putting down brakes and stopping the train; two short blasts for relieving the brakes and starting the train; three, for backing the train." It is contended that these signals are in the nature of orders or commands which the engineer

is authorized to give to brakemen which they are bound to obey; and hence, the relation of superior and subordinate is created. A majority of the court do not so understand either the purpose or effect of the rule. These signals are so named properly, and are intended to notify all concerned of the thing signified. They are addressed to the conductor as well as brakemen, and it is the duty of the conductor to see that brakemen perform the duty signified. This duty is imposed upon the brakemen by force of the rule itself, and not by virtue of any authority vested in the engineer over the brakemen. The signal is a mere notice. The rule is the order of the company to the brakemen directly. Suppose a train is signaled by a station agent, as this train was, to stop for orders. It thereby becomes the duty of the conductor, as well as of each employee on the train, to stop for orders; and yet, no one can contend that such station agent, who gives the signal, is the superior, and train crew subordinate employees of the company within the meaning of rule under consideration. A variety of signals, under a variety of circumstances, are required to be given by different employees of the company, to signify that an occasion exists for the performance of a particular duty, but, it would be absurd to hold that in each case, the employee giving the signal is a superior servant, to whom all others, to whom information is thus communicated, are subordinated; so that the company would be responsible to them for any act of negligence of the employee who gave the signal, whether such negligence was in giving the signal or in the performance of other duties.

For it must be observed, that negligence or carelessness is not affirmed of the act of the engineer in giving either the signal to tighten the brakes or to loosen them. The only negligent and careless act charged against him, was in forcing the engine forward violently, without giving time to the brakemen to loosen the brakes. The signal informed the brakemen that the train was about to go forward. The rule is, "two short blasts for relieving the brakes and starting the train." The matter of applying the steam to the engine, and starting the train forward, was under the control of the engineer alone, and, although we think, upon the testimony, the act was recklessly performed and caused a very serious injury to the brakeman, it was. nevertheless, within the risks assumed by the defendant in error when he engaged with the plaintiff in error to discharge the duties of brakeman on the

train.

This conclusion of the court is fully sustained by the decision of the Supreme Court Commission in P. Ft. W. & C. Ry. Co. v. Lewis, 33 Ohio St. 196. That case was an action by a brakeman against the railway company for an injury caused by the negligence of the engineer, and the negligent act complained of was in starting the train, while the brakeman was in a dangerous position, without giving the required signal. We refer to the very able opinion of Judge

Day, without quoting from the case, further than 4th proposition in the syllabus, which reads as follows: "Where an engineer and brakeman were employed by a railroad company in operating the same train, and there was no evidence to prove that the brakeman was placed in a position of subordination to the engineer, other than what may be implied from the rules of the company, requiring the engineer to give certain signals as "a notice" to apply or loose the brakes, and requiring the brakeman to manage the brakes "according to circumstances and the signals of the engineer," and placing the brakeman while on the train, in subordination to the conductor. Held, that the engineer and brakeman were servants of the company engaged in a common service; that the relation of superior and subordinate did not exist between them; and that, therefore, the company was not responsible to the brakeman for an injury occasioned by the negligence of the engineer."

True, in the case before us, several witnesses testified that, on the road of plaintiff in error, brakemen are subordinated to the engineer of the train, but upon the whole record, it is quite evident that the information of the witnesses was based solely upon the rules above quoted in regard to the giving and obeying signals for setting or relieving brakes, so that, in point of fact, this case in this respect is exactly similar to Lewis' case; and a majority of the court can see no good reason for overruling that decision. Judgments reversed and cause remanded. OKEY, C. J., dissenting.

A railroad company is liable in this State for the negligence of a conductor, causing injury to a brakesman, upon the ground that the company has placed the conductor in a position of superiority to the brakesman. But there is no magic in the word conductor; and if the brakesman is bound to obey the orders of the engineer in applying and loosening brakes, as he clearly is, and while obeying such orders is injured by the negligence of the engineer, it is difficult to find satisfactory ground for holding that the company is not equally liable. Argument, however ingenious, based on a distinction between such cases, has for its support no valid reason, and is necessarily fallacious. opinion the law of this State is, that whenever a master has in his employ two or more persons, and the nature of their employment is such that one is required to give orders to the others, who are bound to obey, and while doing so are injured by the negligence of the person placed in such position of superiority, the master is liable, and it is immaterial whether the negligent person was known as conductor, engineer, or by other designation.

In my

In this case the company is clearly liable, in my judgment, by a just application of the principle I have stated. By the very nature of the employment, the brakesman was subordinate to the engineer. But that view is much strengthened by reference to the "general rules for running trains," which are made part of the record.

In looking into those rules I find they do not support the theory that the conductor alone is superior to the brakesman. On the contrary, the engineer is, under the rules of the company, in many things as much superior to the brakesman, and as much beyond his control or advice, as the conductor, and the brakesman is quite as likely to be injured by the negligence of the former as the latter. The company speaks as emphatically and as potently through the engineer as through the conductor. Take the very case under consideration. Pataskala was not a regular stopping place for this freight train. The conductor gave no signal to stop, but the engineer, in pursuance of a rule of the company, did give the signal for that purpose. The rules provide, inter alia: "One short blast is the signal for putting down the brakes and stopping the train; two short blasts for relieving the brakes and starting the train. * * * When signal bell on engine is rung by conductor to stop at next station, the engineer will answer with two short whistles. Engineers will also give the same signal when it is seen to be necessary to stop at a station at which he has not been signaled to stop by the conductor." Engineers "will be held equally responsible with the conductors in case of any violation of the rules and regulations of the road."

Here the engineer gave the signals because the company, by fixed rules, commanded him to give them, without waiting for any order of the conductor, and the brakesman obeyed the signals because it was his imperative duty to do so, under the rules of the company. And the same rules which required the engineer to give the signals, made it his duty, when the brakes were loosened, to put on more steam so as to increase the speed. The engineer, in performing this last duty, however, was guilty of gross negligence; he started the train so suddenly as to break it into three sections and maim Ranney for life; and it is fair to say that Ranney would not have been injured if he had not been at the very moment obeying the orders of the company, given through the engineer, to loosen the brakes.

The conductor performed no office whatever at or before reaching Pataskala station-there was none for him to perform. The injury would have happened the same way, to the same extent, and from the same cause, i. e. the negligence of the company acting through the engineer, if the conductor had been absent from the train. Shall we segregate the acts of the engineer performed in the few moments which elapsed from the time of giving the signal to apply the brakes until the injury occurred, holding that in giving the signals he was the company's alter ego, and in putting on more steam a fellow servant of Ranney-his right hand the company, his left a mere fellow servant? Surely there is no real foundation for any such distinction.

and the decision of the majority in this case is, in my judgment, equally erroneous. White, J., dissented on the same ground. und. [This case will appear in 37 O. S.]

INSURANCE-LOSS-LIABILITY

SUPREME COURT OF OHIO.

DETROIT FIRE & MARINE INS. Co.

v.

COMMERCIAL MUTUAL INS. Co.

March 28, 1882.

Where an insurance company, after having taken a risk and reinsured in another company to indemnify itself against loss on its policy, discharges its liability by the payment of a less sum than that for which the original Insurance was effected, the sum so paid by it will be taken as the amount of damage sustained, and the measure of indemnity to be recovered from the reinsuring company; provided such sum is within the amount of the reinsurance policy, and does not exceed the amount of actual loss, and such policy contains no condition for prorating loss or limiting liability.

Error to the District Court of Cuyahoga County.

The petition alleged that on the 10th of May, 1871, the plaintiff, the Commercial Mutual Insurance Company, issued its policy of insurance, causing $20,000 to be insured upon the body, tackle, apparel, and other furniture, of the Schooner called the "John Burt," from noon of the 6th day of May, 1871, to noon of the 5th day of December, 1871. That on the same day, the defendant, the Detroit Fire & Marine Insurance Company, on account of the Commercial Mutual Insurance Company-loss if any, payable to them-made re-insurance, and caused $5,000, to be insured upon said Schooner, from noon of said 6th day of May, to noon of said 5th day of December. That in and by said policy of re-insurance, the said vessel, with her tackle, apparel and other furniture was valued at $25,000; and the limit of insurance upon the vessel interest thereby insured, was fixed at $20,000. That with the exception of the names of parties and amount insured, the terms, conditions, and stipulations of said re-insurance policy, were substantially the same, as those contained in the policy issued by the re-insured company to the owner of the vessel. That on the 14th of October, 1871, the lakes, sunken, and so damaged, that she was said vessel was, by the perils and dangers of the abandoned as a total loss, and the abandonment was accepted.

The answer alleged that before the commencement of said action, the plaintiff settled and compromised with the owner of said vessel, his claim of $20,000 under the policy issued to him, for the sum of sixty cents on the dollar, to wit, $12,000; and obtained from the owner an absolute release and discharge from all liability under said policy; that at the time of said settlement and compromise, the plaintiff was not in a bankrupt or insolvent condition; that in accordance with the terms of said settlement and compromise, the defendant paid to the plaintiff $3,000, or sixty

The original insurer became liable to the owner of the vessel for a total loss, but actually paid him only $12,000, being sixty per cent. of the amount of the policy, in full discharge of its liability. The whole amount of re-insurance was $5,000. Shall the re-insured company recover the full amount of its policy, or only a pro rata part of the latter sum, at the rate of sixty cents on the dollar?

The contract of insurance has always been regarded as one of indemnity, the object being to protect the insured from any and all damage occasioned by the happening of the loss insured against, not exceeding the amount of the policy. Re-insurance is thus defined by Mr. May: "It is a contract of indemnity to the re-insured, whatever be the subject matter, and binds the re-insurer to pay to the re-insured the loss sustained in respect to the subject insured, to the extent for which he is re-insured, and not necussarily differing in form from an original insurance." May on Insurance § 11. In the case before us the policy does not differ in form from the original policy, although it may be true, as I am informed it is, that policies of re-insurance generally contain a condition that the loss, if any, shall be payable pro rata, at the same time and in the same manner with the re-insurance company, yet no such condition is expressed in the policy before us. Is it to be implied? To answer this question we must have a clear idea of the nature and object of such a contract. Parsons in his work on Marine Insurance, vol. 1 p. 299, says: "In all cases of re.insurance, whatever may be their ground, the re-insured stands, as to his insurers, in the same relation in which the insured stands to him," "and it may be said in general, that, wherever the insurance is not on the property of the insured, but against risks which he bears, this is in the nature of re-insurance," (p. 303). And in Phillips on Insurance $374, this definition is given: "Re insurance is a contract whereby one party, called the re-inaurer, in consideration of a premium paid to him, agrees to indemnify the other against the risk assumed by the latter, by a policy in favor of a third party." And it has been held that the original assured cannot assert any interest in a policy of re-insurance. Herkenrath v. Ins. Co., 1 Barb. Ch. 363.

If it be true, then, that it is the risk which is insured against, and the contract is intended to furnish complete indemnity, it is difficult to understand any reason why, when such risk has be

come a certainty, and the re-insured has actually sustained a loss, he is to be indemnified only partially and not completely; at least to the extent of the amount named in the policy of re-insur

ance.

Upon this subject, there are but few adjudged cases. None are to be found in the English books. From a very early day re-insurance has been interdicted in that country by act of Parliament, (19 Geo. 2, Ch. 37, sec. 4), Mr. Arnold states that this statute arose from the fact that re-insurance had come to be employed as a mode of speculating in the rise and fall of premiums, and the legislature foresaw that it might be used as a cover for wager policies, 1 Arnold on Ins. 290. Andree v. Fletcher, 2 T. R. 161, is an emphatic declaratian of the meaning and force of this statute. Whatever may have been the reasons for its adoption, however, it has certainly never been recognized as a part of the common law of this country. Our courts have refused to so regard it, or to find anything in re-insurance contrary to public policy and fair dealing. Upon this subject, Mr. Justice Sedgwick said in the early case of Merry v. Prince, 2 Mass. 176, "That a contract of re-insurance is not prohibited by the principles of the common law is admitted by the parties. It is a contract which, in itself, seems perfectly fair and reasonable, and might be productive of very beneficial consequences to those concerned in this important branch of commerce; but because it was much abused, and turned to pernicious purposes it was prohibited by an act of the Parliament of Great Britain." In this case he goes on to show conclusively that the principle of that statute has never found a place in the insurance law of the United States. See also Merchant's & M. Ins. Co. v. Washington Ins. Co., 1 Handy 408, 425. This will serve to explain the fact that the English reports are barren of authority upon the subject under investigation.

Since the decision of the French Court of Admiralty at Marseilles, in December, 1848, cited in Emerigon, Traiti des Assurance, Meredith's Translation 202, (but no other report of which I have been able to find), it has been uniformly held, that, where the first insurer becomes insolvent, and, on a compromise with his creditors, pays only a certain percentage of the loss, the reinsurer is nevertheless, bound to pay the re-insured the full amount of the loss to the extent of the re-insurance. The most carefully considered case, and perhaps the leading case upon this subject is Hone and Bokee v. Mutual Safety Ins. Co. 1 Sandford 137, subsequently affirmed in 2. Comstock 235. In this case the decision of the French Admiralty Court is followed, and the court repeat with approval the language of Emerigon and Roccus, to the effect that the reinsurer is bound to pay the whole loss which is incurred by the first insurer.

Bonlay Paty ard Alanzet, two distinguished modern french authors, are also cited as speaking to the same effect.

In Blackstone v. Alemannia Ins. Co. 56 N. Y.

V.

104, the same doctrine is declared to be definitely settled. See also to same effect, Ins. Co. Cashow, 41 Md. 59, and Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443.

If it be true, then, that the re-insurer is liable to the re-assured (to the extent of the sum named in the policy) for the full amount of the loss, for which only a liability has attached to the original insurer, but which he has not paid and cannot pay on account of insolvency, how much more must it be true that such obligation exists where the re-assured has not only incurred a liability but has actually paid the full amount for which he asks indemnity? If there existed room for doubt as to how this question should be answered the answer would be found in the decision of Ill. Mut. Ins. Co. v. Andes Ins. Co. 67 Ill. 362, which, as far as I am able to understand it, is indistinguishable from the case at bar. In that case the element of insolvency did not exist. The original insurer was liable to pay to the insured the sum of $6,000, in consequence of the loss of the subject matter insured, but actually paid only $600, in full discharge of the liability, the amount of the re-insurance was $2,000, It was said by the court, that the reassured would have been entitled to recover $600, had there been a clause in the policy prorating the loss.

The claim of the plaintiff in error is based upon the theory that, in respect to the subject matter of insurance, the re-insured and the reinsurer are engaged in a common venture and ought thereupon to bear the loss in ratable proportion. In the light of the authorities this view is wholly untenable. It pre-supposes a certain privity of contract to exist between the original insured an the re-insurer, the existence of which is denied by every authority which has spoken upon the topic. I am content to close this subject by quoting the language of Emerigon: The re-insurance is absolutely foreign to the original assured, with whom the re-insurer contracts no sort of obligation." Traiti des Assurance, Meredith's Translation, p. 201.

Judgment affirmed.

[This case will appear in 37 O. S.]

RAILROAD-CONSTRUCTION IN A STREET OF A CITY-INJUNCTION.

SUPREME COURT OF OHIO.

THE SCIOTO VALLEY RAILWAY

บ.

DAVID LAWRENCE ET AL.

March 28, 1882.

1. Where the construction of a railroad in a street of a city, will work material injury to the abutting property, such construction may be enjoined, at the suit of the owners, until the right to construct such road in the street shall first be acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.

2. In such case it is immaterial whether the fee is vested in the city or in the abutting owners, so long as it

is held upon the same defined uses. Railway Co. v. Cumminsville, (14 Ohio S. 524) approved and followed. Error to the District Court of Scioto County. On July 3, 1877, the defendant in error, David Lawrence and others, filed their petition in the Court of common Pleas of Scioto County to enjoin the Scioto Valley Railway Company, the plaintiff in error, from constructing its railroad along and on Gay street in the city of Portsmouth in said county.

The plaintiffs aver that they are the owners of valuable lots abutting on said street; that said street is dedicated to public use as a street, the fee thereof being vested in said city in trust for said use. They also aver that said railway company has obtained from said city of Portsmouth, the right of way so far as said city has power to grant the same, to construct and build said railroad over and along said Gay street, that the construction of said railroad and the laying of the track thereof along said street as contemplated in said grant of the right of way by said city, and the running of locomotives and trains thereon, will have the effect of rendering the property of the plaintiffs in Gay street to a great extent worthless, and to deprive them of their property in said street, and the private rights and easements which they respectively now have in the same. It is also averred that such contemplated use of said street is not only an essential diversion of it to other purposes than these for which it was acquired, but is such an enlargement of its uses as to accumulate materially additional burdens upon the land, and destroy or impair the incidental rights of the plaintiffs appurtenant to their lands abutting on said street, and that the damages resulting therefrom will be irreparable.

The answer of the defendant, put in issue the averments of the petition as to the injurious effects upon the property of the plaintiffs, resulting from the construction and operation of the railroad, and relied upon the grant from the city as a bar to the relief sought.

On the trial the court found the issues in favor of the plaintiffs and granted the injunction as prayed for, unless the railroad company, as against the plaintiffs, should first acquire the right to construct said road, under proceedings instituted as required by law for the appropriation of private property.

On error this judgment was affirmed by the district court, and the present proceeding is instituted in the court to reverse both judgments. WHITE, J.

This case is governed by the principles laid down in Street Railway v. Cumminsville, (14 Ohio St. 524); and we are not disposed to depart from the ruling in that case.

1. As to the claim of the plaintiff in error that the abutting lot owners will sustain no appreciable damage by the construction of the railroad on the street.

This question was put in issue by the pleadings and was found by the court below in favor