caurnn ·v. coLonADo UNITED Mm. co. 41
other; their separate services had an immediate common object-the
moving of engines; neither worked under the orders or control of the
other. Following that, in 112 U. S. 377, 5 Sup. Ct. Rep. 184, the
famous Ross Case, the supremecourt, by tive to four judges, held that a
conductor having charge of a train was so far localized in his work, and
given such control over the train, that it was,fair to hold him as a vice—·
principal, and not a co-employe with one on another train injured by
his negligence; but they do not carry this exception to the old rule be—
iyond the conductor; and while, of course, no man can know what may
be the decision of the court in subsequent cases, I am reliably informed
that the decision was intentionally and narrowly limited to the case of a
conductor. In Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. Rep.
590, a case that went up from Dakota, the court held that one who had
charge of the keeping of the cars and machinery in order was not a co-
employe with one who was at work as a brakeman, on the ground that
it was an independent duty of the railroad company to see that its ma-
chinery, its cars, were kept in order; and that that was not a common
service with that of one who is employed in running trains. In 119 U.
S. there are two cases,-one, Steam—Ship C0. v. Carey, p. 245, 7 Sup. Gt.
Rep. 1360, and the other Railway Oo. v. McLaughlin, p. 566, 7 Sup. Ct.
Rep. 1366. Neither of those cases adds anything to the question, for
‘hey were each aiiirmed by a divided court, so no principle of law was _
settled. In one of them the negligence charged was of some agent of
the company in failing to provide a suitable rope. That was the duty
of one who had charge of the machinery of the company as contradis-
tinguished from one who worked in using such implements; and yet, by
only a divided court, the judgment below was affirmed. The othercase
went up from Iowa, and that was afhrmed by a divided court; although
in Iowa, by statute, they have abolished the rule· in respect to co·em-
ployes, just as they have in Kansas. So the rule, as at present left by
the supreme court,-and that, of course, guides me,—is that an engineer
is a co·employe. It is a common service in a common object,—¥-the mov-
ing of trains,——and, following the decisions of that court, I must sustain
the demurrer to that complaint.
Caurmz v. COLORADO Uurrnn Mm. C0.
(Uircuit Court, D: Oolorado. May 4, 1888.)
Mssrnn zmn Sn1zv.m·r——NneLm1a:Ncn or MASTER—PLEADING.
The complaint in an action for damages for personal injuries set out the
employment of plaintilf by defendant, and charged a breach of duty onthe
emplcgyer s part n failing to keep a certain ladder in proper re air, andthat
one o the rounds of said ladder broke and dropped plamtiif. 'lzhe allegation
of negligence was to the effect that “it was the duty of defendant to keep said
ladder in good, safe, and secure condition, so that those in its employment
might securelv ascend and descend the shaft upon the same. " Held. on de-