Daniels v. Railroad Company
THE sixth section of the act of Congress of 29th April, 1802,  provides:
'That whenever any question shall occur before a Circuit Court upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, &c., be stated under the direction of the judges and certified . . . to the Supreme Court . . . and shall, by the said court, be finally decided.'
With this act in force Daniels brought a suit in the Circuit Court for the Northern District of Illinois against the Rock Island Railway Company for injuries done him by a collision on its railroad; there being a special plea to one of the counts of the declaration-of which there were several, denied generally-that the collision referred to was brought about by the carelessness of the defendant's servant, and without the knowledge or consent of the defendant, and that at the time of the injury the plaintiff himself was a servant serving as a fireman on the locomotive. The record went on:
'On the trial it was proved that the defendant was a common carrier of passengers; that at the time alleged the plaintiff was on the engine of the defendant, for the purpose and in the manner hereinafter stated, proceeding over the road of the defendant, when by the negligence and carelessness of the engineer of the locomotive (the said engineer being at the time a servant of the defendant), upon which the plaintiff was riding, a collision took place, which resulted in great personal injury to the plaintiff. The circumstances connected with the plaintiff's trip and the manner and purpose of his firing the engine, as well as some conversation of his after the injury, are detailed by the witnesses as follows.'
Then followed the testimony of seven witnesses-two on one side, five on the other-examined and cross-examined. These witnesses testified that the plaintiff had been, a week previously to the accident, a fireman on the railroad, but had been-as some signified it might be-'dismissed'-though, as it rather appeared, possibly-'suspended;'-that is to say, owing to the diminished business of the road at that exact season, had been taken off the pay-list; as the company did continually with its hands on the decrease of its business at particular times in the year, and put on a list of persons who would be preferred when, with the increase of business, the company would again require more aid. 'Its business was unsteady.' Such persons, it was testified, were under no obligation to come back, nor was the company bound to employ them again, but it was a custom if they were at hand to set them to work again as soon as there was work. Daniels, it was testified, had been inquiring two or three days previously to the day of the accident when he should be employed again, and was told that it might be in one, two, three, or four weeks; that it would depend on the business of the road.
On the day of the accident he came to the master mechanic, within whose business it was to employ and discharge firemen, and asked, as some witnesses testified, for 'a pass'-though others heard nothing about 'a pass'-to go to a place called Peru to get his clothes. The master, according to his own testimony, told him that the company was going to send an extra engine down that night or the next, and that he could 'fire' that engine down; though according to the testimony of another witness, the master told him that if he would fire that engine down he would give him a pass: 'that was the understanding between them.' The master himself swore that there was no agreement that he should fire the engine in consideration of his passage on it. The company, it was sworn to, was not in the habit of making that sort of agreement, and the master mechanic had no right to make such arrangements or to give 'passes.' He supposed, according to his own testimony, that a sub-officer whose duty it would be, unless directed to the contrary, to put the man's name on the payroll when he saw him serving on the engine, would put his name on the roll accordingly.
There was other testimony, all directed to the fact whether or not the man was actually reinstated or whether he was hanging on only, expecting to be, and had now, in consideration of 'firing' the engine on a particular trip, been given the privilege of a passage on it to go and get his clothes.
The record, after mentioning certain facts that were proved, thus went on:
'This was all the evidence bearing upon the case, and thereupon it occurred as a question whether, in point of law, upon the facts as stated and proved, the action could be maintained, and whether, consequently, the jury should be instructed that under the facts as proved the plaintiff could not recover; upon which questions the opinions of the judges were opposed. Whereupon, &c., the foregoing points upon which the disagreement has happened is ordered by the judges to be stated and certified to the Supreme Court of the United States, & c., for its final decision.'
The case came here accordingly by a certificate that the opinions of the judges were opposed on the points set forth, and was argued by Messrs. Hurd and Booth, for the plaintiff, and by Messrs. Cook and Winston, contra, on the questions of law and fact presented;-questions, however, which this court did not consider; their opinion going to the matter of jurisdiction only.
Mr. Justice SWAYNE delivered the opinion of the court.
^1 2 Stat. at Large, 159.