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The Pennsylvania Company e. McCaffrey, Administratrix.

1. McCaffrey was a section boss, and the train crew were fellow-servants.

2. The absence of the conductor and engineer was the proximate cause of McCaffrey's death.

3. That both the appellant and McCaffrey knew, before the fatal day, that the conductor and engineer habitually left the train at times during the nineteen hours of constant duty to get something to eat; that this was in violation of the rules of the company, and in disregard of their duty under the law.

4. That having this knowledge, he was bound to abandon the service or take upon himself the risks incident to operating a train with a deficient crew while part were at their meals.

The four propositions involved in his position, counsel tersely states as follows:

"Moreover the evidence, so far from showing that McCaffrey did not have knowledge of the offending habits of his fellow-servants, discloses that he did, in fact, have knowledge, and no excuse is shown for his thereafter remaining in the service."

We think the doctrine of fellowship between trainmen and trackmen so well settled in this State that a citation of authorities to support it is unnecessary. In this case appellant's counsel frankly admits that his company had, at least, "constructive notice," that the engineer and conductor were "in the habit of leaving their trains to get their meals."

It is a recognized rule of the courts that if the negligence of a master combines with negligence of a fellowservant, and the two contribute to the injury of another servant, the master is liable. Franklin, Admr., etc., v. Winona, etc., R. R. Co., 34 N. W. Rep. 898; Elmer v. Locke, 135 Mass. 575; Grand Trunk R. W. Co. v. Cummings, 106 U. S. 700; Coppins v. New York Central, etc.,

The Pennsylvania Company v. McCaffrey, Administratrix.

R. R. Co., 122 N. Y. 557; Whittaker v. President, etc., Co., 126 N. Y. 544; Lake Shore, etc., R. W. Co. v. Stupak, 123 Ind. 210 (223); Rogers v. Leyden, 127 Ind. 50 (53).

In Boyce v. Fitzpatrick, 80 Ind. 526, it is said: "While a servant assumes the risk, more or less hazardous, of the service in which he engages, he has a right to assume that all reasonable attention will be given by his employer to his safety, so that he will not be carelessly and needlessly exposed to risks which might be avoided by ordinary care and precaution on the part of his employer, and where, in the absence of such care and precaution, an employe is injured, the employer is liable, although the negligence of a fellow-servant contributed to the injury complained of." This principle was approved in Louisville, etc., R. W. Co. v. Berkey, 136 Ind. 181..

In our opinion the rule is a just and salutary one, and we ought not depart from it. Unless it be that a master has a right to require a servant to stand at his post of duty without food or rest for nineteen consecutive hours every day, Sundays included, and that such conduct is not a breach of duty to the public, as well as its other servants, it follows that the appellant, in this case, has not performed its duty towards decedent, without which it is liable, if this negligence was the proximate cause of his death. That it was, is clear. The law of nature is inexorable in its demands. The cravings of hunger must be appeased. The laws of humanity declare that every man, fit to be a member of a train crew, must have three meals, some rest, and eight hours' sleep a day.

The appellee well says: "Deprived of these requisites of intelligent life, a soldier becomes a coward, a workingman a drone.' Any being would lose his strength if worked a few months by the time schedule provided. for this crew. Every statute and employer's rule is

The Pennsylvania Company v. McCaffrey, Administratrix.

made in the presence of and subject to the laws of nature. Hunger, thirst, and sleep are imperative; and when a schedule is made of nineteen consecutive hours of service on a train, and no provision is made by the company for their supply of food, it is understood that the employes must, of necessity at times during the service, leave their places to get their meals. So that when the engineer and conductor left the train, after thirteen hours' service on the day of the accident, to get their suppers, it was in obedience to this law of nature-an overruling necessity, and was not, therefore, negligence on their part. They were not deserters, and their conduct can not be characterized as "offending habits.' Without notice to the company, it was bound to know that these men must, and therefore did, at intervals during the nineteen hours of each day, leave the train to answer nature's strong and eager desire for food. And so knowing, it will be held to have consented. If appellant desired to escape responsibility, it should have provided an adequate force.

"It is the duty of the railway not to increase the perils of its servants by the inadequacy of the force employed in any particular work; and, in particular, trains must be manned by a sufficient number of train hands." Patterson's Railway Accident Laws, section 297; Flike, Admr., v. Boston, etc., R. R. Co., 53 N. Y. 549; Booth v. Boston, etc., R. R. Co., 73 N. Y. 38; Moak's Underhill on Torts, 47.

We think it clear that the appellant was guilty of a breach of duty toward the public, including McCaffrey, by operating the train with only a fireman and a brakeman, because it was its duty to have an adequate number of competent men on the train to handle it and give notice of its approach. And when, by appellant's conduct, it became necessary for its two chief employes to

The Pennsylvania Company v. McCaffrey, Administratrix.

temporarily absent themselves, it was its duty, at once, to stop the train until their return, or supply their places with other competent men during their enforced and necessary absence. This legal duty is supported by several rules printed on the time card.

Rule 40 provides that the whistle is to be sounded three times when a standing train is to move backward. Rule 40 provides that before starting, the bell must be rung.

Rule 110 reads as follows: "When a train is run backward (except when shifting and making up trains in yards), a signalman must be stationed in a conspicuous position on the rear car, so as to perceive the first sign of danger, and immediately signal to engineman.' The evidence shows that all these rules were violated by the company at the time of the accident.

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Impliedly conceding all these facts, the appellant seeks to escape responsibility, by urging that McCaffrey negligently contributed to his own death. If this were true, the general verdict of the jury to the contrary should be set aside. No difference how derelict of duty the company was, if McCaffrey saw or knew the train was backing on him, and going beyond him, he was bound to exercise the caution which the law imposes on every man to take care of himself, even at the risk of losing his position. But as there is evidence in the record strongly tending to establish that he was "stepping back from the car," and "tried to get out of the way," fell, and the "train pushed" the "hand car on him" at the time the calamity befell him, we are not prepared to say that the jury falsified the facts when they found he was not guilty of negligence contributing to the result. Complaint is made that the court refused to give the jury the 16th and 17th instructions asked by defendant. The 16th states the proposition that if McCaffrey knew the engineer and conductor were in the habit of absent

The Pennsylvania Company v. McCaffrey, Administratrix.

ing themselves from the train, at times, to get necessary food, then it was McCaffrey's bounden duty to know they were on this train at that time, "and not to place, or attempt to place, the hand car on the track if they were absent, and if he failed in this respect he was negligent." This would have imposed upon him the duty to board the train as it passed, and see if the conductor was on. And as it is negligence to get on a running train, he would have been compelled to have followed the train to the station, in case it did not stop long enough for him to overtake it, and make the inspection. On the same principle he would have been required to see if the fireman was eating his supper on the engine. We are not aware of any rule casting such a burden on the section boss. In the Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88 (94), this court said: "The obligation or duty of the master is not to expose the servants, while conducting his business to perils or hazards which might have been provided against by the exercise of due care and proper diligence on the part of the master." In Patterson's Railway Accident Laws, supra, section 283, it is declared that a railway company "is bound to its servants to exercise that degree of care which

will tend to secure its servant's safety to as great an extent as is compatible with the conduct of an essentially hazardous business by the use of human instrumentalities." As to the 17th instruction, there was no evidence tending to show that "McCaffrey saw the backing train approaching him in time, and with opportunity, to get out of the way, and failed to do so. The fact is, while trying to get out of the way he fell, and was then struck, dragged and injured. In Rice on Ev., volume 2, p. 796, it is said: "No instructions should be given, which are not relevant to facts which there is evidence tending to prove." By another instruction the appellant asked the court to

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