Opinion of the Court. purposes, at issue, without further pleading on either side. Equity Rule 66. Fourth. A demurrer to the answer is unknown in equity practice. But the plaintiff may set down the case for hearing upon bill and answer; whereupon all the facts alleged in the bill and not denied in the answer, as well as all new facts alleged in the answer, are deemed admitted, as upon a demurrer to an answer in an action at law. Equity Rule 41, as amended at December Term, 1871, 13 Wall. xi; Equity Rule 60; Leeds v. Marine Ins. Co., 2 Wheat. 380; Reynolds v. Crawfordsville Bank, 112 U. S. 405, 409; Banks v. Manchester, 128 U. S. 244, 250, 251. For the purpose of the hearing upon exceptions to an answer, the facts alleged in the bill and in the answer must indeed be considered as admitted, and only matter of law is presented for decision, as in a case set down for hearing upon bill and answer. But the difference between the two cases is this: When a case in equity is set down for hearing on bill and answer, the whole case is presented for final decree in favor of either party. But when the matter set down for hearing is the plaintiff's exceptions to the answer, the case is not ripe for a final decree; the only question to be decided is the sufficiency of the answer; and no final decree can be entered against either party, unless it declines or omits to plead further. In the present case, the plaintiffs, upon the coming in of the answer, neither moved for leave to amend the bill, nor filed a replication, nor set down the case for hearing upon bill and answer. But they filed exceptions to the answer; and those exceptions only were set down for hearing, and were heard and passed upon by the court. While some of the exceptions were directed, as is usual, to the want of due answer to specific allegations of the bill, others of the exceptions related to the sufficiency of the whole answer to constitute any defence. Its sufficiency in the latter respect might properly have been questioned by setting down the case for hearing upon bill and answer. But neither for this nor for any other reason, was VOL. CLX-17 Opinion of the Court. any objection made to the exceptions as irregular or improper in form. The Circuit Court, upon sustaining the exceptions, could not (unless the defendants chose to stand by their answer) enter a final decree against the defendants; or do anything more than order them to put in a full and complete answer, on pain of being held to have confessed the bill. If the Circuit Court, instead of sustaining the exceptions to the answer, had overruled those exceptions, the plaintiffs would have had the right to file a replication, and the bill could not be dismissed unless and until they neglected to file one. When the decree of the Circuit Court, sustaining the plaintiffs' exceptions to the answer, and (because the defendants declined to plead further) granting to the plaintiffs the relief prayed for in the bill, was reversed by this court, the only matter which was or could be decided by this court, upon the record before it, was that the answer was sufficient. This court, in so deciding, could go no further than the Circuit Court could have done, had it made the like decision. Neither the Circuit Court, nor this court, upon adjudging that the answer was sufficient, could, without any consent or neglect on the part of the plaintiffs, deprive them of their right, under the general rules in equity, to file a replication. Nor did this court undertake, either by its opinion or by its mandate, to preclude the plaintiffs from filing a replication. On the contrary, at the outset of the opinion, after observing that, in the manner in which the case was submitted for decision, the facts alleged in the bill and not denied in the answer, and the new facts alleged in the answer, must be assumed to be true, the question arising upon those admitted facts was stated to be "whether the decree in favor of the plaintiffs can be sustained;" and, while the opinion declared that, assuming those facts, the mortgage was valid, yet both the opinion and the mandate ordered no final judgment for the defendant, but only ordered the judgment for the plaintiff to be reversed, and the cause remanded to the Circuit Court for further proceedings not inconsistent with the opinion of this court. Syllabus. The case being thus left open, by the opinion and mandate of this court, and by the general rules of practice in equity, for further proceedings, with a right in the plaintiffs to file a replication, putting the cause at issue, the Circuit Court might, in its discretion, allow amendments of the pleadings for the purpose of more fully or clearly presenting the facts at issue between the parties. Marine Ins. Co. v. Hodgson, 6 Cranch, 206, 218; Neale v. Neales, 9 Wall. 1; Hardin v. Boyd, 113 U. S. 756. The case is quite different, in this respect, from those in which the whole case, or all but a subsidiary question of accounting, had been brought to and decided by this court upon the appeal, as in the cases principally relied on by the petitioner. Stewart v. Salamon, 94 U. S. 434, and 97 U. S. 361; Gaines v. Rugg, 148 U. S. 228; Ex Parte Dubuque & Pacific Railroad, 1 Wall. 69; In re Washington & Georgetown Railroad, 140 U. S. 91. It must be remembered, however, that no question, once considered and decided by this court, can be reëxamined at any subsequent stage of the same case. Clark v. Keith, 106 U. S. 464; Sibbald v. United States, and Texas & Pacific Railway v. Anderson, cited at the beginning of this opinion. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 165 364 711 859 72f1023 731 973 73f 980 160 259 L-ed 418 168 89 74f 192 No. 373. Submitted December 3, 1894.- Decided December 23, 1895. A force of five men, in the night service of a railroad company, was employed in uncoupling from the rear of trains cars which were to be sent elsewhere, and in attaching other cars in their places. The force was under the orders of O., who directed G. what cars to uncouple, and K. what cars 160 259 L-ed 418 77f 540 78f 705 160 259 L-ed 418 80f 262 160 259 L-ed 418 175 338 f82f 174 84f 769 160 259 L-ed 418 871 760 921 493 92f 570 Statement of the Case. to couple. As the train backed down, G. uncoupled a car as directed. K., in walking to the car which was to be attached to the train in its place, caught his foot in a switch and fell across the track. As the train was moving towards him he called out. The engine was stopped, but the rear car, having been uncoupled by G., continued moving on, and passed over him, inflicting severe injuries. K. sued the railroad company to recover damages for the injuries thus received. Held, that K. and O. were fellow-servants, and that the railroad company was not responsible for any negligence of O. in not placing himself at the brake of the uncoupled car. THE action below was brought by Keegan to recover damages for personal injuries sustained while acting as brakeman in the employ of the railroad company. Judgment having been rendered upon the verdict of a jury, in favor of Keegan, the company sued out a writ of error from the Circuit Court of Appeals for the Second Circuit. Two circuit judges, sitting as the court, differed in opinion upon questions of law arising, and thereupon certified two questions to this court. The certificate sets forth the following statement of facts: - "Five men - O'Brien, Keegan, Lally, Gooley, and Ward — were, on the night of the accident, (October 7, 1889,) in the service of the Central Railroad of New Jersey, and employed in its yard at Jersey City. They comprised what was called the night float drill crew,' the duty of such crews being to take cars from the tracks on which they had been left by incoming trains and place them on the floats, by which they were transported across the North River to the city of New York. The drill crews, like others employed in the same yard, received their general instructions from Dent, the yardmaster. The men composing such crews were hired by Dent and discharged by him, and he had the general charge of the yard and yardmen, and assigned them to their duties. "The course of business was as follows: Dent, the yardmaster, gave to O'Brien drill slips-that is, slips of paper containing the numbers of the cars and the particular tracks leading to the floats on which these cars were to be placed. These float tracks were five in number and were connected, by switches, with the other tracks in the yard. The execution of this order required frequent switching of cars from one Statement of the Case. set of tracks to another in order to sort out from arriving trains the particular car or cars to be placed on a particular float track. It also required the making up of trains of cars sometimes longer, sometimes shorter; their movement by the engine attached to them, forward or backward and at varying rates of speed; the braking, coupling, and uncoupling of the cars composing them. Ward was engineer. Lally had his post on some car near the engine in order to transmit to the engineer any signals received. He also helped the engineer with coal and water, and acted as brakeman. Keegan did the coupling; Gooley the uncoupling and acted as brakeman, while the turning of the switches was attended to by O'Brien. The direction of all these operations was with O'Brien, who is called in the evidence sometimes 'foreman driller,' sometimes conductor of the drill crew.' He was the one to direct what cars should be taken on by the engine, and when and where they should be moved to, when the movement should start, and where it should stop, and it was in obedience to his orders that one or another of the men employed in his crew went to one place or another and coupled or uncoupled particular cars. The general management of the operation was with him, and he had control over the persons employed therein. "On the night of the accident Keegan, who had been relighting his lantern at the engine, which was then standing still, attached to several cars, walked to the rear end of the train. O'Brien and Gooley were standing there looking over the drill slip. There were some other cars standing on the same track, about 40 feet beyond the end of the cars to which the engine was attached. O'Brien told Gooley what cars were to be uncoupled. He then told Keegan to couple the train onto the cars beyond. Keegan took the coupling link of the rear car in his right hand, and, having signalled for the train to back slowly, walked towards the detached cars, with the rear end of the last car at his back. Before he reached them he caught his right foot in the guard rail of a switch, and at once called out to hold up the train. His call was heard and the engine stopped immediately. Gooley, however, |