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Opinion of the Court.

one thousand dollars for the damages sustained, upon which, and for costs, judgment was entered in his favor.

This case had, on a previous occasion, been before the Supreme Court of the State on appeal. The court below bad held that the complaint did not state facts sufficient to constitute a cause of action, and dismissed it and refused a motion for a new trial. On appeal from the order denying the motion the ruling below was reversed and a new trial granted. In giving its decision, the Supreme Court, among other things, held that to regulate the carrying on of any business liable to be injurious to the property of others, like that of operating a railroad, so that it shall do the least possible injury to such property, was as much within the police power of the State as regulating it with a view to protect life from its dangers; and that the State might, under that power, require railroads to be so constructed, maintained, and operated, and so protected and enclosed, that they would injure as little as possible the farms or lands through or alongside of which they run, and that the legislation of the State having this object in view was valid.

It was objected below that the statute, as thus interpreted, denied to the railroad companies the equal protection of the laws of the State, as required by the first section of the Fourteenth Amendment. The point of the objection, as indicated in the opinion of the Supreme Court, so far as we can understand it, was this, that the statute in requiring railway companies to fence their roads was a police regulation, having for its object to prevent animals from getting on the tracks and the consequent danger of injury to the animals themselves and to railway passengers and employés; and, therefore, to impose penalties and authorize a recovery of damages for noncompliance with the law for other than the resultant injuries to animals and railway passengers and employés, was in excess of the police power of the State, and a departure from its general law, which imposed penalties and damages only for the direct injuries sought to be prevented, and did not extend them so as to cover consequential and possible resulting injuries.

Opinion of the Court.

The answer to this is that there is no inhibition upon a State to impose such penalties for disregard of its police regulations as will insure prompt obedience to their requirements. For what injuries the party violating their requirements shall be liable, whether immediate or remote, is a matter of legislative discretion. The operating of railroads without fences and cattle guards undoubtedly increases the danger which attends the operation of all railroads. It is only by such fences and guards that the straying of cattle, running at large, upon the tracks can be prevented and security had against accidents from that source; and the extent of the penaltie which should be imposed by the State for any disregard of its legislation in that respect is a matter entirely within its control. It was not essential that the penalty should be confined

. to damages for the actual loss to the owner of cattle injured by the want of fences and guards; it was entirely competent for the legislature to subject the company to any incidental or consequential damages, such as the loss of rent, the expenses of keeping watch to guard cattle from straying upon the tracks, or any other expenditure to which the adjoining owner was subjected in consequence of failure of the company to construct the required fences and cattle guards. No discrimination is made against any particular railroad companies or corporations; all are treated alike, and required to perform the same duty, and, therefore, no invasion was attempted of the equality of protection ordained by the Fourteenth Amendment.

It was also objected that the statutes of Minnesota, in requiring the defendant to build partition fences for the benefit of adjoining land owners, or to pay damages for not building them, imposes upon the company a duty not required by contract, common law, or its charter, and is, therefore, a violation of the right conferred by the charter to buy and bold lands for specified purposes, the same as any other land owner.

To this position we answer that the extent of the obligations and duties required of railway corporations or companies by their charters does not create any limitation upon the State against imposing all such further duties as may be deemed

Syllabus.

essential or important for the safety of the public, the security of passengers and employés, or the protection of the property of adjoining owners. The imposing of proper penalties for the enforcement of such additional duties is unquestionably within the police powers of the States. No contract with any person, individual or corporate, can impose restrictions upon the power of the States in this respect.

The objection that by allowing damages for the diminution of value in the adjoining farm caused by the failure of the company to fence its roads and to construct proper cattle guards, is taking property of the defendant without due process of law, falls with the supposed in validity of such consequential damages which we hold to be within the discretion of the legislature to impose.

Judgment affirmed.

MINNEAPOLIS AND St. Louis RailwAY COMPANY, Plaintiff in Error, v. NELSON. Error to the Supreme Court of the State of Minnesota. No. 241. Submitted April 21, 1893. Decided May 10, 1893. MR. JUSTICE FIELD. The facts in this case are similar to those in the case just decided, and by stipulation is to be disposed of in the same way. Judgment is accordingly

Affirmed.

BALTIMORE AND OHIO RAILROAD COMPANY v.

BAUGII.

ERROR TO THE CIRCUIT COURT OF THE

UNITED

STATES FOR THE

SOUTHERN DISTRICT OF OHIO.

No. 89. Argued December 9, 12, 1893. - Decided May 1, 1893.

Whether the engineer and fireman of a locomotive engine, running alone on

a railroad and without any train attached, are fellow-servants of the com. pany, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former, is not a question of local law, to be settled by the decisions of the highest court of the State

Statement of the Case.

in which a cause of action arises, but is one of general law, to be determined by a reference to all the authorities, and a consideration of the

principles underlying the relations of master and servant. Such engineer and such fireman, when engaged on such duty are, when so

considered, fellow-servants of the railroad company, and the fireman is precluded by principles of general law from recovering damages from the company for injuries caused, during the running, by the negligence

of the engineer. Chicago, Milwaukee & St. Paul Railway v. Ross, 112 U. S. 377, explained

and distinguished.

John Baugh, defendant in error, was employed as a fireman on a locomotive of the plaintiff in error, and while so employed was injured, as is claimed, through the negligence of the engineer in charge thereof. He commenced a suit to recover for these injuries in the Circuit Court of the United States for the Southern District of Ohio.

The circumstances of the injury were these: The locomotive was manned by one Hite, as engineer, and Baugh, as fireman, and was what is called in the testimony a “helper." On May 4, 1885, it left Bellaire, Ohio, attached to a freight train, which it helped to the top of the grade about twenty miles west of that point. At the top of the grade the helper was detached, and then returned alone to Bellaire. There were two ways in which it could return, in conformity to the rules of the company: one, on the special orders of the train dispatcher at Newark, and the other, by following some regular scheduled train, carrying signals to notify trains coming in the opposite direction that the helper was following it. This method was called in the testimony “flagging back.” On the day in question, without special orders, and not following any scheduled train, the helper started back for Bellaire, and on the way collided with a regular local train, and in the collision Baugh was injured. Baugh had been in the employ of the railroad company about a year, had been fireman about six months, and had run on the helper, two trips a day, about two months. He knew that the helper had to keep out of the way of the trains, and was familiar with the method of flagging back. No testimony was offered by the defendant, and at the close

VOL. CXLIX-24

Opinion of the Court.

of the plaintiff's testimony the defendant asked the court to direct a nonsuit, which motion was overruled, to which ruling an exception was duly taken. In its charge to the jury the court gave this instruction : “ If the injury results from negligence or carelessness on the part of one so placed in authority over the employé of the company, who is injured, as to direct and control that employé, then the company is liable." To which instruction an exception was duly taken. The jury returned a verdict for the plaintiff for $6750, and upon this verdict judgment was entered. To reverse which, the railroad company sued out a writ of error from this court.

Mr. John K. Cowen, (with whom was Mr. Hugh L. Bond, Jr., on the brief,) for plaintiff in error.

Mr. L. Danford, (with whom was Mr. James C. Tallman on the brief,) for defendant in error.

MR. JUSTICE BREwer delivered the opinion of the court.

The single question presented for our determination is, whether the engineer and fireman of this locomotive, running alone and without any train attached, were fellow-servants of the company, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former.

This is not a question of local law, to be settled by an examination merely of the decisions of the Supreme Court of Ohio, the State in which the cause of action arose, and in which the suit was brought, but rather one of general law, to be determined by a reference to all the authorities, and a consideration of the principles underlying the relations of master and servant.

The question as to what is a matter of local, and what of general law, and the extent to which in the latter this court should follow the decisions of the state courts, has been often presented. The unvarying rule is, that in matters of the latter class this court, while leaning towards an agreement with the

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