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ter, 34 Md. 265; 6 Am. Rep. 332; Polack v. Trustees, 48 Cal. 490; Gerhard v. Seekonk River etc. Commrs., 15 R. I. 334; Kings County etc. Co. v. Stevens, 101 N. Y. 411; Coster v. Mayor, 43 N. Y. 399; Barr v. Oskaloosa, 45 Iowa, 275; Heller v. Atchison etc. R. R. Co., 28 Kan. 625.
The last of these decisions is by Mr. Justice Brewer, and is perfectly clear in maintaining the proposition that one whose acceso is not cut off, and whose property rights, in the immediate front of his lot, are not invaded, and who suffers only from the loss of convenience of access, which of itself may turn the tide of travel from his premises, occasions loss of business and depreciation in value of property, sustains damage of the same kind, but in greater degree, than that sustained by the public generally.
We have not endeavored to collect all of the cases holding this view, but have included, as will be observed, the decisions of many states. We concede that the holding of some of the courts of this country are not in harmony 615 with this, the great weight of authority, and it would seem that the English rule, urged by appellant's learned counsel, cannot be reconciled with the current of authority in this country, but that rule has met with frequent criticisms in the cases we have cited, and is in some justified under acts of parliament.
However, we are constrained to hold with the best American authority, even if the conflict with the English rule were sharply drawn and free from distinctions.
There is in this country a line of holdings which is sometimes thought to conflict with what we have said to be the current of authority, namely, those cases which include the holding of liability for obstructions by elevated railways. These, however, should be distinguished as not having relation to access, but to the easement of light and air, and as encroaching upon the immediate lot front.
All of the cases we have cited, to the question now under consideration, involved the vacation of one or more of several avenues of access, and left other avenues which required a more circuitous course in reaching the property of the plaintiff. In several of the cases, provisions of the state constitutions and statutes, reserving damages for the taking of or injury to property, were considered as not allowing damages, where the injury was of the character suffered by the community in general. In some of the cases, it is urged, as it has been in this case, that, if instead of vacating the street the proceeding had been to establish
1 street, the appellants would have been subject to assessment for benefits therefrom, and for that reason they would be entitled to damages. It was held not to affect the question: Buhl v. Fort Street, 98 Mich. 596; Stanwood v. Malden, 157 Mass. 17; East St. Louis v. O'Flynn, 119 Ill. 200; 59 Am. Rep. 795; Kean
616 Elizabeth, 54 N. J. L. 462; Chicago v. Union Bldg. Assn., 102 Ill. 379; 40 Am. Rep. 598.
In the case of Kean v. Elizabeth, 54 N. J. L. 462, it was said in this connection: "It is assumed by counsel for prosecutrix, that because the prosecutrix was assessed for a benefit resulting from the opening of this street peculiar to herself, that she got & vested right in the continued existence of the street, of which she could not be stripped without compensation. But this, I think, is more plausible than substantial. While the right she got may have been of peculiar benefit to her property, yet it was a right which she shared with the public. The privilege of using the street was shared by each member of the community. It may not have been of the same value to each member of the community, but the right to use the street was in each citizen the same. It was exclusively a public right, put under the control of the representatives of the public. It was subject to alteration or abolition when, in the judgment of those to whom the public interests were confided, those interests demanded such action. The age sessment of benefits is presumed to be based upon the recognized power of the state and its agencies to modify or destroy the improvement.”
It has been suggested by counsel for the appellant that the question, as to whether there has been an injury, is one for the jury under proper instructions. The question has, with but few, if any, exceptions, arisen upon demurrer to the petition, as it does in this case. A statement of the facts, submitted and tested by the rules of pleading and principles of law, which otherwise would be given as charges to the jury, constitutes the case and calls for judicial determination as a question of law. As to whether one whose access was not cut off by the vacation of a part of a street may recover has been expressly held to be a question of law: East St. 617 Louis v. O'Flynn, 119 Ill. 200; 59 Am. Rep. 795; Stanwood v. Malden, 157 Mass. 17.
It should be conceded, of course, that if legal injury is pleaded, the degree of that injury, in ascertaining the amount of recovery, may be submitted to the jury, but as to whether a legal injury is pleaded is a question of law for the court.
In the absence of authority from other states there could be no
escape from the conclusion that our court has gone so far in the direction we have shown as to deny a recovery by the appellants. They have ample means of access to their property, and the vacations complained of do not affect the access to their lot front, but are remote from it. If they have suffered in the depreciation of the value of their property by the inconvenience of the public travel to reach it, or of the appellants to reach other parts of the city, that inconvenience is suffered alike by all who may desire to go to the appellant's property, or from that property to other parts of the city. It is, therefore, an injury suffered in common by the appellants and the public in general, though the degree of appellant's injury may be, and probably is, the greater.
We conclude that the circuit court did not ert in sustaining the appellee's demurrer to the complaint, and the judgment is affirmed
HIGHWAYS-OBSTRUCTION OF ACCESS TO.-The owner of a lot fronting on a street, though he has no title in any part of the lands upon which such street is located, may sustain an action to recover damages resulting to him from an obstruction of the street, impairing, in a substantial degree, the light or accessibility of his premises: Aber. droth v. Manhattan Ry. Co., 122 N. Y. 1; 19 Am. St. Rep. 461; Long. mont v. Parker, 14 Col. 386; 20 Am. St. Rep. 277, and note. If dam. ages are occasioned an abutting owner by an improvement made by a municipality in the street in front of his property, whereby ingress and egress to the premises are injuriously affected, this is a kind of injury, not common to the general public, for which the city is liable: Pueblo v. Strait, 20 Col. 13; 46 Am. St. Rep. 273, and note; Seldon V. Jacksonville, 28 Fla. 558; 29 Am. St. Rep. 278, and note.
AL AI. BP., VOL 1-9
SCHROEDER V. Flint & PERE MARQUETTE R. R. Co.
(103 MICHIGAN, 213.) RAILROADS.-A FOREMAN OF A GANG OF MEN employed by a railroad company in unloading dirt from cars, who is under the immediate and direct control of a division roadmaster, is only a fellow-servant with each of the other members of the gang, whether he is authorized to hire and discharge or not. Therefore, Done of them can recover of the common master for the foreman's negligence.
Hanchett, Stark & Hanchett, for the appellant.
314 GRANT, J. The liability of the defendant, the Flint & Pere Marquette Railroad Company, under the instructions of the court, depends upon the position occupied by Mehalski, the boss or foreman of a gang of ten men, who were occupied in unloading and leveling the dirt hauled upon its premises by the defendant, the Chicago & Grand Trunk Railway Comp The bole negligence alleged as ground for recovery against the Flint & Pere Marquette road is that Mehalski failed to give notice to his coemployés that the train was about to move. Before discussing this question, I desire to state that, in my judgment, this accident could not possibly have happened, without the nego ligence of the plaintiff himself, if the trainmen of the Chicago & Grand Trunk road had performed their duty. It was established beyond controversy, by the testimony of witnesses and by the rules of the company, that it was the duty of the trainmen to give warning of the moving of the train, and to see that both the "track and the train were clear,” and that it was the duty
( 854 )
of the rear brakeman to be in his place on the rear car when the train moved. The case against the Grand Trunk company was withdrawn by the plaintiff before it was submitted to the jury, and he was permitted to recover on the ground of the negligence of the Flint & Pere Marquette company.
If Mehalski was not the defendant's alter ego, then it is not liable. He occupied the usual position of boss or foreman of a gang of men. His duties were no other, or different, or greater, than those of the foreman of the ordinary section gang upon a railroad. In all such cases, some one of the men employed must . be invested with authority to direct the work. He kept the time, counted the number of cars, directed the men where and how to work, 215 saw that they did their work properly, directed the place where the train should stop for unloading, notified the men when to cease leveling and go to unloading, and then assisted in doing the work. He was under the immediate and direct control of Mr. Cole, a higher official of the defendant, who was often present, sometimes daily, superintending and directing the work. I do not think there was any legitimate evidence tending to show that he was invested with authority to hire and discharge men. He certainly had not done it before the accident, and was not given express authority until long afterward. But whether he did or did not have such authority I consider of little consequence. The power to hire and discharge is not conclusive, and is, in many cases, of little moment. Too much prominence has often been given to this authority. One may possess it and still not be the alter ego, or he may not possess it and still be the alter ego.
The doctrine of nonliability for the negligence of a fellowservant is so firmly established, and has been so frequently affirmed, in this state, that I deem it unnecessary to cite the anthorities. The difficulty has always been in determining whether the servant whose negligence caused the injury was, under the facts of each case, the alter ego or a fellow-servant. The perplexity and difficulty of the question have been recognized in the decisions of this court, and it is quite possible that there may be some difficulty in harmonizing them all; but the rule recognized in nearly if not all of them is thus stated by McKinney on Fellow-Servants, section 23:
“The true test, it is believed, whether an employé occupies the position of a fellow-servant to another employé, or is the representative of the master, is to be found, not from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offend