Cuyahoga Circuit Court.

We are of the opinion that the term, "actually collected," as used in the first section quoted from, and the word, "collected," as used in the other section, are synonomous in their meaning, and that the clerk is entitled to a percentage on all moneys which come into his hands as fees and which he is required to pay into the fee fund.

The case of State ex rel. v. Brewster, 44 Ohio St., 249 [6 N. E. Rep., 653], is cited in support of the demurrer.

In that case, the prosecuting attorney of Hamilton county claimed a commission of ten per cent. on moneys paid to the order of the clerk of the court of common pleas, under the provisions of Secs. 7336 and 7337, Rev. Stat. The statute under which the claim was made, is Sec. 1298, Rev. Stat., and reads:

"In addition to his salary, the prosecuting attorney is entitled to ten per cent. on all moneys collected on fines, forfeited recognizances, and costs in criminal causes, provided that such commission shall not in any one case exceed one hundred dollors."

In the opinion in that case, on page 250, this language is used:

*

"The question arises upon the proper construction of the language, on all moneys collected ** on costs in criminal causes,' used in Sec. 1298. Does the language embrace costs paid by the state to the order of the clerk under the sections above referred to, or is it confined to such costs as the prosecuting attorney collects of defendants in criminal causes, in performance of the duty imposed on him by section 1273, Rev. Stat.? * * *

"Now looking outside of Sec. 1298 to other sections of the Revised Statutes, more or less related to it in subject-matter, we find that by Sec. 7183 it is made the duty of the prosecuting attorney to prosecute and recover the penalty of all recognizances by him received; and, by Sec. 1273, to prosecute on behalf of the state all complaints, and in every case of conviction to 'forthwith cause execution to be issued for the fines and costs, or costs only, as the case may be, and faithfully urge the collection until it is effected;' and 'forthwith pay over to the county treasurer all moneys belonging to the state or county which come into his possession for fines, forfeitures, costs, or otherwise.'

"Now we think it is manifest that the mind of the legislature was directed to the provisions of these several sections when it enacted Sec. 1298, and that the commission there allowed on all moneys collected on fines, forfeited recognizances, and costs in criminal causes, has reference to such fines, forfeited recognizances, and costs in criminal causes, as, by these sections. he is required to collect."

Again, this language is used in the opinion:

"It is hardly to be supposed that the allowance of a commission on moneys collected by a prosecuting attorney in the performance of a duty required of him by statute would be associated with the allowance of a percentage on moneys neither collected nor required to be collected by him."

It will be observed that, in this opinion, stress is laid upon the fact that the moneys upon which the prosecuting attorney was claiming a percentage, were moneys which, in no sense, were ever collected by him; they never came into his hands, nor were they ever required to come into his hands; which clearly distinguishes the case from the one at bar, where all moneys are required, by law, to come into the hands of the clerk.

State v. Commissioners.

We are of opinion that the moneys upon which the relator in this action seeks to recover a percentage, are fees actually collected by him and paid by said clerk into the fee fund," upon which he is entitled to the commission of ten per cent.

The demurrer is overruled.

NEGLIGENCE-MASTER And servant.

[Huron Circuit Court.]

Parker, Haynes and Hull, JJ.

LULU HILL, ADM'X, V. Lake Shore aND MICHIGAN SOUTHERN RAILWAY Co.

1. ADOPTION of Sec. 3365–22, REV. STAT.-LEGISLATIVE INTENT.

Inasmuch as the doctrine of fellow servants had grown up and been applied in various parts of the United States before the adoption of Sec. 3365-22, Rev. Stat., 87 O. L. 149, providing that "in addition to the liability now existing by law, every person in the employ of such company, actually having power or authority to direct or control any other employee, is not the fellow servant, but superior of such other employee, also that every person in the employ of such company having charge or control of employees in any separate branch or department, shall be held to be the superior and not fellow servant of employees in any other branch or department who have no power to direct or control in the branch or department in which they are employed," the legislature in using the terms "separate branch or department" and providing the rules set forth, must be held to have had in view the doctrine theretofore applied in other states, as the legislature does not undertake to define what shall be deemed a different department or branch of service, but leaves that to be determined by the courts, as we think upon principles analogous to those laid down in cases where the departmental limitation had theretofore been adopted and applied.

2. RULE IN Determining Relation of Superior and Fellow Servants. The proper rule in the determination of the relation of superior and fellow servants of a railway company is not by an arbitrary division or holding that because some are employed as engineers, some as firemen, some as brakemen and some as conductors, each of these various lines are different departments, but the true rule is that where there are close and constant associations of employees at their work, bringing them into relation with each other where they may have an influence upon the conduct of one another in their operations and in their work, those so brought together in groups may be said to be in separate departments. In other words each group or each gang, employe in the promotion of a single object, as the running of a train of cars from one end of a section to another, or the management of a certain section of a railroad or any other things which a certain group of men are set to work upon, may be said to be in a separate department.

8. RULE APPLied-BrakeMAN AND Engineer FellOW SERVANTS.

Under the foregoing rule, an engineer and a brakeman upon the same train in the promotion of a single object, i e., the moving of the train, associated together in such a way as that they will naturally be careful of the train and therefore careful of one another, are fellow servants in the same department. 4 SCOPE OF The Term “Defective MacHINERY."

The term "defective machinery," as used in Sec. 3365-21, Rev. Stat., relating to prima facie negligence, is not restricted to defective construction or something absent from the machinery, but applies to machinery which has been allowed to become out of repair, gummed up or so dirty that it will not operate as it is designed to or should operate; but the presumption of negligence from such defects is rebuttable.

16 O. C. D. Vol. 12

Huron Circuit Court.

5. WHEN QUESTION as to Defect Should GO TO JURY.

Where a railroad train started out in good order and the brakes became gum med up, in the ordinary operation of the train, and failed to operate properly, the case should go to the jury on the question whether the company was negligent or not, but should not be so submitted as to result in a shifting of the burden of proof upon the question of the existence of the defect.

• RULE AS TO CHARACTER OF MACHINERY.

The true rule, within Sec. 3365-21, Rev. Stat., relating to defective machinery and prima facie negligence, in respect to all machinery, is that it should be as perfect as machinery that is in ordinary use and as it could be maintained by the exercise of ordinary care.

7. RULE OF Employers for Safety of Servants.

A charge that employers are bound to adopt only such rules as experience shows to be reasonably necessary, is too narrow. Employers are bound to adopt such rules as persons o ordinary care would discover and must know would be necessary for the safety of employees, even though the conditions may be new to the employers, and they have had no experience in such cases.

8. OBJECTIONable Charge AS TO ASSUMPTION OF RISK.

A charge which directs the jury that if they find there was no rule provided by a railroad company for warning employees on its train when emergency brakes were to be applied, yet if the employee knew there was no such rule and continued in the service of the company without complaint or o jection he assumed the risk incident to such failure to provide rules, is objectionable in failing to state the qualification that this would depend upon the knowledge or lack of knowledge of the employee of the risk or danger incident to an operation of the train without such a rule.

HEARD ON Error.

PARKER, J.

This action was brought by Lulu Hill, plaintiff in error here and plaintiff in the court below, as administratrix of the estate of William Hill, to recover from the defendant railroad company on account of the death of William Hill, occurring on the east side of the river in the city of Toledo, on the railroad of the defendant company, and it was charged that his death resulted from the negligence of the railroad company.

It appears that the decedent was a rear brakeman upon a freight train consisting of over seventy cars, which was proceeding westward and approaching the river at Toledo and the junction of the Cincinnati Hamilton & Dayton railroad with the defendant company's railroad; that he was sitting upon the caboose at the rear end of the train; that the engineer of the train was apprised that the semaphore some distance ahead of the train was turned so as to require him to bring his irain to a stop and that he did bring his train to a stop; that the stoppage of the train resulted in the deceased being thrown from the train and killed. It is said that the railroad company was negligent in this, that the engineer was negligent in bringing the train to a sudden stop unnecessarily; that he had plenty of time and distance within which to bring the train safely to a stop by doing it gradually by the application of what is called the "service brake," instead of the application that is said to have been made, i. e., the “emergency brake." It is said also that the defendant company was negligent in that it did not provide a rule whereby the engineer should give warning to the trainmen when about to make the application of the brakes, since it is said the application of the service brake is liable to result in the application of an emergency

Hill v. Railway Co.

brake, though not intended, and that the emergency stop is very dangerous and gives a very hard jolt to the train and is likely to throw one from the train; and it is urged that since this is likely to occur from any stop, the company should provide a rule for a notification by signal from the engine that the brakes are going to be applied, so that the trainmen may be upon their guard against an emergency stop, whether intentionally applied or whether inadvertently applied in the effort to apply the service stop.

It is said that the railroad company was also negligent in that the brakes were out of order or defective; that there is testimony tending to show that the engineer did not purposely apply the emergency stop, but that he intended to apply the service stop, and that on account of the defective condition of the brakes the emergency stop was applied, bringing the train to a sudden stand and throwing the decedent therefrom.

The company denied all negligence and averred that the deceased was guilty of contributory negligence.

Upon the issues thus presented, the case was submitted to a jury that returned a verdict in favor of the defendant below. A motion for a new trial was made and overruled and the plaintiff in error complains of various alleged errors, which he says resulted to his prejudice and on account of which he seeks a reversal of the judgment of the court below.

One of the questions which arose upon the trial of the case and which is presented here is, whether the engineer and the deceased brakeman were fellow servants, they both being servants of the defendant company upon the same train, it being contended by the railroad company that if there was any negligence other than the negligence of the deceased which resulted in his injury and death, it was the negligence of the engineer in needlessly applying the emergency brake, and that the engineer being a fellow servant of the deceased, no right of action accrued on that account.

The court, at the request of the defendant, charged the jury as follows:

"The engineer upon the train was the fellow servant of the deceased, and the deceased assumed the risk of injury resulting from any negligence of the engineer; and the plaintiff cannot recover for any injury resulting to the deceased from the engineer's negligence." To the giving of the above request by the court to the jury the plaintiff by her counsel at the time excepted.

It is contended on behalf of the plaintiff in error that under the statutes, Sec. 3365-21, Rev. Stat., these two servants were in separate departments of service and that therefore the plaintiff might have recovered on account of the negligence of the engineer and that this instruction, that they were fellow servants, should not have been given.

Section 3365-22, 87 O. L., 149, reads as follows:

"That in all actions against the railroad company for personal injury to, or death resulting from personal injury, of any person, while in the employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employee of such company, is not the fellow-servant, but superior of such other employe, also that every person in the employ of

Huron Circuit Court.

such company having charge or control of employees in any separate branch or department, shall be held to be the superior and not fellow servant of employees in any other branch or department who have no power to direct or control in the branch or department in which they are employed."

There was testimony here tending to show that the deceased did not have the power to control or direct in any branch whatever while the engineer did have power to direct and control at least the fireman upon the train. So that the question is directly presented, whether or not the engineer and the rear brakeman, or the deceased, were in separate departments or branches of the service within the purview of this

statute.

That an engineer upon one train is in a separate branch or department from a brakeman upon another train has been held in C. H. & D. R. R. Co. v. Margrat, 51 Ohio St., 130 [37 N. E. Rep., 11]. But it is urged by the defendant in error that a very different question is presented here, where both are trainmen upon the same train.,

་་

The doctrine upon the subject of what is called the different departments of service amounting to a limitation upon the doctrine of fellow servants had grown up and been applied in various parts of the United States before the adoption of this statute by our legislature and it seems apparent to us that in using the term separate branch or department," and in providing these rules, the legislature must have had in view the doctrine and rules theretofore applied in other states; for the legislature does not undertake to define what shall be deemed a different department or branch of the service, but leaves that to be determined by the courts, as we think, upon principles analogous to those laid down in the case where this departmental limitation had theretofore been adopted and applied.

I will read from 12 Am. and Eng. Ency. Law (2 ed.), beginning at page 971: "In addition to the liability for the negligence of a servant charged with the performance of the master's positive duties to his servants, there has been laid upon the master, by some courts, a further liability for the negligence of a servant engaged in a department of the same general business which is separate and distinct from the department in which the injured servant is employed."

"This rule may be stated as follows: Where a servant is employed in a department of the general service which is separate and distinct from that of the servant or servants whose negligence caused the injury, the fellow servant rule has no application, and the master is liable."

Among the cases cited as applying the different department limitation upon the doctrine of fellow servants are cases in Illinois (and Illinois seems to be the leading state for that doctrine,) Georgia, Kentucky. Tennessee, Arizona, Missouri, Nebraska, Utah, West Virginia, etc. It is pointed out that the recognition of such limitation is contained in the Mississippi constitution.

It is said that this doctrine was first judicially recognized in Indiana in the year 1854; but it has since been repudiated in this state. It was adopted in Kentucky, however, in 1865 and was subsequently taken up in other states."

While it may have been subsequently repudiated by the courts in Indiana, it is our recollection from our reading of the Indiana Employ