St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-05-15
The Dissenting Opinion in the
Baugh Case Is a
Seoreher.
The Deei sion Declared to Be
Danger Gus to the Sow
ereign States
And Inhuman to Employees
Injured by Negligence
The Ross Case.
Special to the Globe.

jorty of the court in this case is in favor
of the largest exemptions OF corpora
tons from liability. The principle in
the Ross case covers this case, and re-
CURES, in my opinion, a Judgment OF
affirmauce."
With this vigorous arraignment Of the
majority of the supreme court Justice
Field closed his dissenting opinion in
the case of Baugh VS.. The Baltimore d
OHIO Railroad Company. The attorneys
of Minnesota and the people generally
have never taken much interest i'll the
charges so frequently made by the Sage
of Nlninger that the highest judicial
body of the nation is controlled by
the corporations. but now that
the matter has been brought
to their attention in so marked man
ner by the reversal of the celebrated
Ross case, they will be obliged to con-
feSs that for once the senator from
Dakota has been in the right. Judge
Field says so and gives his reasons in
an opinion that, for close reasoning and
| broad knowledge of constitutional law,
will take its place among the great
Judicial deliyerances Of the age.
Review of the Facts,
The facts in this case are already well
known. and need be stated but briefly.
Baugh was a citizen of Ohio, employed
as fireman On locomotive of the Bal
timOre q Ohio, a corporation created by
the state Of Maryland, and claiming
citizenship there. Baugh was in
jured on the locomotive when it
was running wild" with no con-
ductor. Under the rules of the railroad
company in such cases the engineer be-
came the conductor and the fireman
was under his control. The action was
commenced in the court of common
pleas of Belmont county, Ohio, but on
| petition of the Baltimore 81 ohio was re-
moved to the United States circuit
court for the Southern district of the
state. In that court Baugh, who lost
an arm and the use of leg, secured a
verdict for Sc, 80. In discussing the
case, Judge Field declares that the po-
| Sition Of the majority of the court, to the
effect that the engineer and the fireman
remained co-employed, although the
fireman was subject to the orders of the
| engineer, can not be maintained.
A Proper Instruction.
"The court below" he says, sin
structed the jury, in substance. as fol-
| lows: That the law assumes that where
person enters into any employment he
| takes the risks incident to that employ
ment, so far as they may result from
the nature Of the employment itself, or
| from the negligence or default of his
| fellow servants; that is, of those
who are not placed in authority and
| control over him, but who occupy
substantially the same relation to the
company as he does; but that ii an in
| jury results to an employee from the
negligence or careleSSneSS on the part
of one placed in authority over the en-
plOyeS of the company so as to direct
and control them, the company is liable;
| that. therefore, if the engineer and fire
man were fellow servants as thus de-
scribed, the plaintiff could not re-
cover; but that, if the engineer was
the agent or the representative of the
company and the fireman acted under
his direction and was subject to his
orders, and the injury resulted from the
default or negligence or wrong of the
engineer. then it must be attributed to
the company. as the negligence, default
or wrong of the company"
In this instruction Judge Field states
the United States circuit court followed
the decisions of the supreme court of
Ohio, the commonwealth in which the
cause of action arose, and the law of
| Ohio on the matter he insists
was the law to control. The relations
of employees and the liability OF
their principals are matters of legislative
control and IN no sense under the sub
mission or direction OF the judges or
courts of the United States. Of the
claim of the majority Of the court in
seeking reasons for applying the rigor-
Gus principles of the common law to
! tbi. ooco IudUa FinIdc
There Is No Common Law.
There is no unwritten general or CON-
mon law of the United States Oh the
subject. Indeed, there is no unwrItten
| general or common law of the United
States on any subject. The common law
may control the construction of terms
and language used in the constitution
and statutes OF th9 Uuited States. but
creates no Sc parate and Independent
law for them. The federal government
leach of which, as said in Wheat
on VS.. Peters g Pet. 59l,
65S), "may have its local usages,
customs, and common law. There is no
principle which pervades the Union,
and has the authority of law, that is not
embodied in the constitution or laws of
the Union. The common law could be
made part of our federal system only
by legislative adoption. When. there
fore, common-law right is asserted,
we must look to the state in which
the controversy originated. C0nceding
that federal court. sitting within a
state where the law relating to the sub
ject under consideration is unsettled and
doubtful, must exercise an Independent
judgment and declare the law upon the
best light it can obtain, this rule has nc
application where the law of the state is
Neither Unsettled Nor Doubtful.
but is established and certain, and rec.
| ogniZed as such by its judicial authori-
ties. While, as we have indicated
there is no general or common law
throughout the country-that is of the
United StateS-as TO the extent and
limits of the liability of a corporation
employment under a supervising and
directing agent, in Ohio the
law on the subject is neither
uncertain nor doubtful; 1t has been
settled there for many years. in Little
Miami Railroad Company VS.. Stevens,
it was held by the supreme court of tina;
state, over forty years ago, that where
an employer placed one in his employ
under the direction of another, also in
his employ. such employer was liable
for injury to the person placed in sub
ordinate situation by the negligence
of his superior; and that decision
has been adhered to eyer since.
There railroad company had placed
an engineer in its employ under the
control of conductor of one of its
trains. who directed when the cars were
to start and when to stop, and it was
held liable for an injury received by
him caused by the negligences of the
conductor. A collision had occurred
by reason of the omission of the con-
ductor TO inform the engineer
of change of place ordered
in the passing of trains The
company claimed exemption from liza
bility on the ground that the engineer
and conductor were fellow servants, and
that the engineer had assumed by his
contract the risk of the negligence OF