This is an action on the case, for an injury sustained by the plaintiff, at the time he was in the employment of the defendants, as a brakeman on a freight train between Worcester and Springfield, as stated in the report.
The case comes before the court upon exceptions taken by the plaintiff to the rulings of the judge who presided at the trial. It appeared from the evidence, that if a man had been stationed on the rear car of the second train, he would have been able to stop the cars which were separated, and thus have prevented the collision. There were on this train two brakemen. One of them, who would otherwise have been stationed on the rear car, went forward to warm himself, and the other agreed to take his place on the rear car, but neglected to do so, and by this neglect, the injury happened. This brakeman was also the acting conductor of the train for this particular occasion. He ought to have taken his station as brakeman on the rear car of the second train, as he agreed to do, and as he was required to do by the general orders of the defendants.
The judge ruled, that the defendants were not responsible to the plaintiff for any damage suffered by him in consequence of the neglect of duty and breach of orders by the acting conductor of the second train. To this ruling exception is taken.
This ruling is in accordance with the decision of this *273court in the case of Farwell v. Boston & Worcester Railroad Corporation, 4 Met. 49, in which it was settled, that a master is not answerable to one of his servants, for an injury received by him in consequence of the carelessness of another servant, while both are engaged in the same service. It is not necessary, on this occasion, to go into the reasoning by which the decision in that case was sustained. The case was thoroughly considered, and is believed to be fully sustained by reason and authority; and the court has no disposition to disturb the authority, or to depart from the decision of that case. The counsel for the plaintiff has endeavored to distinguish this case from the one referred to, and thus to withdraw the present case from the operation of that decision. ■ He says, that in the case referred to, the party in fault, and the party injured, were of the same grade of employment, both being laborers ; and that the case is therefore an authority only in reference to cases where the parties sustain the same relation to the corporation ; but that when a laborer is injured by the neglect of an officer, the rule does not apply. The distinction for which he contends is, that though the company is not responsible to a laborer, for neglect of an ordinary laborer, yet they are answerable for the neglect of an officer, and that in the present case, the neglect was that of an officer.
It is not necessary to consider particularly the soundness of this argument, because, even if it were correct in principle, it fails entirely in matter of fact. It is distinctly set forth and settled by the report, that the party chargeable with neglect, and the party injured, were both brake men of precisely the same grade. Although the brakeman in default was the acting conductor on this occasion, yet he was but a brakeman, charged with the duty of that class of laborers, and his neglect was in that character only, and not as conductor. As between him and the other brakeman, it was a matter of indifference which took his station on the rear car; that was matter of arrangement and concert between them; and this brakeman having engaged to take that station as such, and having neglected to do, so, the default was the default of this *274brakeman ; for which default, by the decision of this court in the case above cited, the defendants are not answerable to the plaintiff. The ruling in this particular was therefore clearly correct.
The second clause of the ruling was not objected to.
The last part of the ruling, as to the immateriality of the trains’ being short handed, is objected to as incorrect. But when it is established, that the injury complained of was occasioned by the neglect of the man on the train, and not by reason of the absence of the man, then surely the absence of the man becomes immaterial. The reasonings and calculations of the counsel, as to chances and probabilities, are skilful and ingenious, but chance and probability are too remote and contingent to be the basis of judicial decision in a case like this. The proximate cause is the object of inquiry, and when discovered, is to be regarded and relied on.
Then it was said, that whether material or not was to be left to the jury. But surely it was within the province and the duty of the court to instruct the jury, that a fault, if any, of the defendants, from which the plaintiff had not suffered, and of which he had no right to complain, was immaterial. Any fault of the defendants, not affecting the plaintiff, was certainly in legal contemplation immaterial in this case.
Judgment on the verdict.