54 FEDERAL nmrosrms.
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of the master to use due care in the selection of competent servants,
and in furnishing them with all the proper and suitable means and
. machinery for the safe performance of the duties intrusted to them,
the performance of which duty will relieve the master from liability
to an employe who receives an injury by reason of the carelessness
of a co·employe engaged in the same service; or (2) a liability under
the statute of Iowa, which enacts that railway companies shall be
liable to such of their employes as are engaged in the operating of
the railroad for the injuries caused by the negligence of a co-employe.
If the action against the company is based upon the first ground, it
is apparent that the fact that the engineer was guilty of negligence
in the running of the train which would constitute a cause of action
against him, would not alone show a violation of duty on part of the
company. If based upon the liability created by the statute, it is
equally clear that the ground of action is distinct and separate from
that charged against the engineer.
Under the allegations of the petition, in order to entitle plaintiff to
recover against the defendant Emsley, it must be shown that he him-
selfwas guilty of negligence in the management of the train under
his charge, resulting in injury to the deceased. Failing in proof of
personal negligence on part of the engineer, plaintiff could notre-
cover against him, but that would not entitle the company necessa-
rily to a verdict in its favor. In the petition it is expressly charged
that the defendants, "while operating and running a passenger train
over the defendants’ road, did carelessly, negligently, and wrong-
fully run said train of cars upon and against Alvis Fink." In legal
effect, this charges that the defendant company negligently and care-
_ lessly ran said train of cars; and, under this allegation, it is open to
plaintiff to show negligence on part of any employe of the company in
the running of said train; and if negligence on part of a flagman, or
on part of the conductor, train dispatcher, or road-master, in con-
nection with the running of said train, could be proven as a matter
of fact, and that such negligence was the proximate cause of the death
of deceased, then the plaintiff could recover against the company, but _
not against the engineer.
Under the averments of fact in the petition, two controversies are
presented,—one between plaintiff and the defendant Emsley, and one
between plaintiff and the defendant company. In the controversy
between plaintiff and Emsley, the company has no part nor lot. It
has no legal interest therein; and, if the plaintiff and Emsley were
citizens of diiferent states, the latter could remove the action, even
if the company and plaintiff were citizens of the same state. In the
controversy between plaintiff and the company, Emsley has no legal
interest. The cause against the company not only can be separated,
but must be separated, from that against Emsley, because the grounds
of liability are legally different. Although the case may be tried as
one before the same jury, the issues upon which the liability of the