The opinion
Paterson, J., dissenting.
I am unable to distinguish this case from McKune v. Cal. S. R. R. Co., 66 Cal. 302 , and other recent cases in which it has been held here that an employee in one department of a business like railroading or mining is not a fellow-servant of an employee in another and different department of the business. In McKune v. Cal. S. R. R. Co., 66 Cal. 302 , it was held that a train-dispatcher and material-man was not a fellow-servant of an ordinary track-laborer. Mr. Justice Field in a recent case said: “ 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. .... There is, in our judgment, a clear distinction to be made in their relation to their common principal between servants of the corporation, exercising no supervision over those engaged with them in the same employment, and agents of the corporation clothed with the control and management of a distinct department in which their duty is entirely that of direction and superintendence. A conductor, having the entire control and management of a railway train, occupies a very different position from the brakemen, the porters, and other subordinates employed. He is, in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants.....In no proper sense of the term is he a fellow-servant with the firemen, the brakemen, the porters, and the engineer. The latter are fellow-servants in the running of the train under his direction; as to them and the train, he stands in the place of and represents the corporation. As observed by Mr. Wharton, in his valuable treatise on the *102 Law of Negligence, .... 'the true view is, that as corporations can act only through superintending officers, the negligences of those officers with respect to other servants are' the negligences of the corporation.’ ” A large number of cases are cited and reviewed in support of the principle of law enunciated therein.
In that case, the plaintiff, an engineer, received injuries through the negligence of the conductor of ehis train, and it was held that the relation of fellow-servant did not exist, and the company was liable. (Chicago & M. R. R. Co. v. Ross, 112 U. S. 377 .)
But the exigencies of this case do not require us to say that the engineer of a train is not a fellow-servant with any other of the employees on the same train with him. We have held that a conductor and brakeman are fellow-servants. (Brown v. C. P. R. R. Co., 72 Cal. 523 .) The case before us is a much stronger case against the company than the one above referred to,— Chicago & M. R. R. Co. v. Ross . The relationship between those who caused the accident here and the deceased was not nearly so close as that of employees on the same train. The deceased was a laborer employed by defendant to remove snow and other obstructions from its track, and was under the immediate control of a road-master. There was no contributory negligence on his part in sleeping in the ear on a side-track under directions of the road-master. {McKune v. Cal. S. R. R. Co., 66 Cal. 302 .) It is admitted that the accident was primarily caused through the negligence of a track-walker named Rabbitt, and the conductor of the train which collided with the car in which the laborers were sleeping.
The case before us is very much like St. Louis & S. F. R. R. Co. v. Weaver, 35 Kan. 412 . The question there was, whether a section boss was a fellow-servant of an engineer, and it was held that he was not. The court said: “ The division road-master, and the section foreman and his assistants, were in one line of duty,. *103 while the train-men were in another and a different line of duty, and each set within its own line of employment represented the master as to the other set, and the members of one set were not the near fellow-servants with the other set.” In the eleventh volume of the Pacific Reporter, at page 545, another somewhat similar case is reported (Hobson v. N. M. & A. R. R. Co.), in which the court held that a teamster engaged in hauling ties for the construction of a railroad was not consociated with the engineer of the train on which the teamsters and other workmen were in the habit of riding back and forth from their headquarters to the place of work, so as to defeat the recovery against their common master for injuries received through the negligence of the engineer. •
Thornton, J., concurred with Mr. Justice Paterson.
Rehearing denied.