Opinion of the Court. against railroad companies for personal injuries — the question of the liability of the company was discussed as one of general law, and no reference made to the decisions of the State in which the injuries took place. And, in the last case, the instruction given by the circuit judge, which was sustained by this court, was in direct opposition to the rulings of the Supreme Court of Minnesota. Thus, in Brown v. Winona & St. Peter Railroad Company, 27 Minnesota, 162, a case called to the attention of this court, that court held that "a master is not liable to one servant for injuries caused by the negligence of a co-servant in the same common employment," and "that the negligent servant is superior in authority, or an overseer of the one injured, does not take the case out of this rule." And in the opinion, on p. 165, it is said: "It is upon this point that the authorities disagree. Some courts, the Supreme Court of Ohio being the leading one, hold that where the injured servant is subordinate to him whose negligence causes the injury, they are not 'fellow-servants,' and the master is liable. On the other hand, the great majority of courts, both in this country and in England, hold that mere difference in grade of employment, or in authority, with respect to each other, does not remove them from the class of fellow-servants as regards the liability of the master for injuries to one caused by the negligence of the other." The same doctrine was announced in Brown v. Minneapolis & St. Louis Ry. Co., 31 Minnesota, 553, and Fraker v. St. Paul, Minneapolis &c. Railway, 32 Minnesota, 54, both decided before the Ross case, and reaffirmed since in Gonsior v. Minneapolis & St. Louis Railway, 36 Minnesota, 385. Indeed, in all the various cases in this court, affecting the relations of railroad companies to their employés, it has either been directly affirmed that the question presented was one of general law, or else the discussion has proceeded upon the assumption that such was the fact. An examination of the opinions in the cases in the Ohio Supreme Court, which are claimed to be authoritative here, discloses that they proceed not upon any statute, or upon any custom or usage, or, upon anything of a local nature, but simply announce the views of that court upon the question Opinion of the Court. as one of general law. We agree with that court, in holding it to be a question of general law, although we differ from it, as to what the rule is by that law. Indeed, the Ohio court is not wholly satisfied with that doctrine, as appears from the cases of Whaalan v. Mad River &c. Railroad, 8 Ohio St. 249, and Pittsburg, Fort Wayne &c. Railway v. Devinney, 17 Ohio St. 197. In the last case it disagrees with the conclusions reached by this court in the case of Chicago, Milwaukee &c. Railway v. Ross, supra, and holds that a conductor of a train is not always to be regarded as a vice-principal or representative of the company. In that case, a brakeman on one train was injured through the negligence of the conductor of another, and they were held to be fellow-servants, and the latter not a vice-principal or representative of the company, for whose negligence it was responsible. The opinion in that case is significant as showing that the question was regarded as one of common or general law; that the ordinary rule is in accordance with the views we have reached in this case; and that the Ohio doctrine is confessedly an exception. We quote from it as follows (p. 212): "The true general rule is, and so it must be, that when men are employed for the prosecution of a lawful but hazardous business, they assume the hazards of such employment arising from the negligence of coemployés, and stipulate for compensation according to their estimate of such hazards; subject, however, to this exception, that the master is liable for such injuries as accrued to the servant from the negligence of a fellow-servant in the selection of whom the master has been culpably negligent; and to this we in Ohio have added the further exception of a case where the servant injured is subordinate to, and acting under the orders of, the culpable fellow-servant. For the reasoning on which the decisions establishing this exception are based, the members of this court, as now constituted, are not responsible; nor are we at all bound to carry out their logic to its ultimate consequences. In subsequent cases, strictly analogous in their facts, those decisions will doubtless be accepted as authoritative; but the case now before us does not require us to review them. In adding this last-named exception to the rule else Opinion of the Court. where generally established, we have already diverged from the general current of judicial decision elsewhere. A majority of the court are unwilling to increase the divergency; doubting, as we do, the wisdom of such a step, and being unwilling to assume the responsibility of what would savor so strongly of judicial legislation." But passing beyond the matter of authorities, the question is essentially one of general law. It does not depend upon any statute; it does not spring from any local usage or custom; there is in it no rule of property, but it rests upon those considerations of right and justice which have been gathered into the great body of the rules and principles known as the "common law." There is no question as to the power of the States to legislate and change the rules of the common law in this respect as in others; but in the absence of such legislation the question is one determinable only by the general principles of that law. Further than that, it is a question in which the nation as a whole is interested. It enters into the commerce of the country. Commerce between the States is a matter of national regulation, and to establish it as such was one of the principal causes which led to the adoption of our Constitution. To-day, the volume of interstate commerce far exceeds the anticipation of those who framed this Constitution, and the main channels through which this interstate commerce passes are the railroads of the country. Congress has legislated in respect to this commerce not merely by the Interstate Commerce Act and its amendments, 24 Stat. 379, c. 104, but also by an act passed at the last session, requiring the use of automatic couplers on freight Public Acts, 52d Cong. 2d Sess., c. 113. The lines of this very plaintiff in error extend into half a dozen or more States, and its trains are largely employed in interstate commerce. As it passes from State to State, must the rights, obligations and duties subsisting between it and its employés change at every state line? If to a train running from Baltimore to Chicago it should, within the limits of the State of Ohio, attach a car for a distance only within that State, ought the law controlling the relation of a brakeman on that car to the cars. Opinion of the Court. company to be different from that subsisting between the brakemen on the through cars and the company? Whatever may be accomplished by statute-and of that we have now nothing to say it is obvious that the relations between the company and employé are not in any sense of the term local in character, but are of a general nature, and to be determined by the general rules of the common law. The question is not local, but general. It is also one of the vexed questions of the law, and perhaps there is no one matter upon which there are more conflicting and irreconcilable decisions in the various courts of the land than the one as to what is the test of a common service, such as to relieve the master from liability for the injury of one servant through the negligence of another. While a review of all these cases is impossible, it may be not amiss to notice some, and to point out what are significant factors in such a question. The Counsel for defendant in error rely principally upon the case of Railroad Co. v. Ross, 112 U. S. 377, taken in connection with this portion of rule No. 10 of the company: "Whenever a train or engine is run without a conductor, the engineman thereof will also be regarded as conductor, and will act accordingly." The Ross case, as it is commonly known, decided that "a conductor of a railroad train, who has a right to command the movements of a train and control the persons employed upon it, represents the company while performing those duties, and does not bear the relation of fellow-servant to the engineer and other employés on the train." argument is a short one: The conductor of a train represents the company, and is not a fellow-servant with his subordinates on the train. The rule of the company provides that when there is no conductor, the engineer shall be regarded as a conductor. Therefore, in such case he represents the company, and is likewise not a fellow-servant with his subordinates. But this gives a potency to the rule of the company which it does not possess. The inquiry must always be directed to the real powers and duties of the official and not simply to the name given to the office. The regulations of a company cannot make the conductor a fellow-servant with his subordinates, Opinion of the Court. and thus overrule the law announced in the Ross case. Neither can it, by calling some one else a conductor, bring a case within the scope of the rule there laid down. In other words, the law is not shifted backwards and forwards by the mere regulations of the company, but applies generally, irrespectively of all such regulations. There is a principle underlying the decision in that case, and the question always is as to the applicability of that principle to the given state of facts. What was the Ross case, and what was decided therein? The instruction given on the trial in the Circuit Court, which was made the principal ground of challenge, was in these words: "It is very clear, I think, that if the company sees fit to place one of its employés under the control and direction of another, that then the two are not fellow-servants engaged in the same common employment, within the meaning of the rule of law of which I am speaking." The language of that instruction, it will be perceived, is very like that of the one here complained of, and if this court had approved that instruction as a general rule of law, it might well be said that that was sufficient authority for sustaining this and affirming the judgment. But though the question was fairly before the court, it did not attempt to approve the instruction generally, but simply held that it was not erroneous as applied to the facts of that case. This is evident from this language, found in the latter part of the opinion, (p. 394,) and which is used in summing up the conclusions of the court: "We agree with them in holding—and the present case requires no further decision that the conductor of a railway train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and, therefore, that, for injuries resulting from his negligent acts, the company is responsible. If such a conductor does not represent the company, then the train is operated without any representative of its owner. If, now, we apply these views of the relation of the conductor of a railway train to the company, and to the |