hand of another, in such case is in law the act of the foreman, and consequently the act of the master." 19

The doctrine of the Ohio court recognizes the rule that it is the duty of the master to exercise reasonable care in providing safe machinery and appliances for the use of his employés. He is bound to vigilance, but vigilance is the maximum of his duty. Reasonable care is required in the employment of careful and competent servants, but the exercise of reasonable care by such servants is at the risk of their fellow servants. When the master has performed the duty of exercising such reasonable care in the selection of competent servants to construct or maintain in repair such machinery or appliances, his duty to other operatives who are to use them is fully met and performed.20

1 Berea Stone Co. v. Kraft, 31 Ohio St. 291.

20 Little Miami R. Co. v. Fitzpatrick, 42 Ohio St. 324.

Brakeman and conductor are not fellow servants. Lake Shore & M. S. Ry. Co. v. Spangler (Ohio Sup.) 8 N. E. 467. Conductor and trackman are not fellow servants. way Co., 38 Ohio St. 389.

Dick v. Rail

Brakeman and car inspector are fellow servants. Little Miami Ry. Co. v. Fitzpatrick, 42 Ohio St. 318.

Foreman in charge of hands repairing freight cars is not a fellow servant with subordinate in respect to the work being done at the time of injury. Lake Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St. 221.

When a sectionman had returned from his work on a construction train, and had deposited his tools and started for home, and, in attempting to cross the track, was injured by such train moving backward, it was held he was not at such time a fellow servant of the trainmen. Columbus & T. Ry. Co. v. O'Brien, 4 Ohio Cir. Ct. R. 515.

CHAPTER XIV.

FELLOW SERVANTS (Continued).

THE RULE IN MICHIGAN.

The test of the existence of the relation is a com

mon employment, p. 268.

Difference in grade or department is immaterial, p. 268.

A servant, however, in full charge over the whole work and the men is a vice principal, p. 270. It is otherwise with a servant charged with a special authority and supervision in respect to a particular part of the work, p. 270.

The rule does not apply where a servant is sent by a superior servant into a dangerous place, or exposed to a risk not assumed, pp. 271, 272. Servants furnishing appliances and keeping premises in repair not fellow servants of those using them, pp. 272, 273.

There is some uncertainty from the decisions, p. 273.

THE RULE IN CALIFORNIA.

The question is regulated by the Code, but its provision is said to follow the common law, p. 275. No distinction in grade is recognized, p. 275.

THE RULE IN INDIANA.

The master cannot delegate to a servant his duty to provide safe premises and appliances; and, if he does so, he is liable for the servant's acts or negligence, p. 277.

But he is not liable for the acts or negligence of a servant acting as such, p. 278.

He cannot delegate the duty to inspect and repair,

pp. 278, 283.

The rule as to foreign cars an exception to the general rule, p. 279.

Cases weakening expression of rule, p. 281.

A foreman is a fellow servant, except where the master's duties are delegated to him, pp. 282, 283.

THE RULE IN NEW HAMPSHIRE.

A servant or agent to whom is delegated the master's duty to provide suitable machinery and appliances is not a fellow servant, p. 284. Difference in rank or grade is immaterial, pp. 284,

285.

The rule as to repairs depends on the circumstances; in some cases the duty may, while in others it may not, be left to servants, p. 284.

The test is whether the offending servant represented the master in the responsibility or performance of any duty the latter owed, p. 285..

THE RULE IN CONNECTICUT.

The rule not clearly defined, p. 286.

The master cannot delegate his duty to furnish safe premises, machinery, and appliances, and to maintain them in proper condition, p. 286.

The rule as to those using such premises, machinery, and appliances is broader than the Massachusetts doctrine, and makes allowance for emergencies, p. 287.

The extent to which a servant having supervision is regarded as a fellow servant, p. 289.

THE RULE IN MICHIGAN.

The general rule as stated in Thompson on Negligence was approved in Michigan: "All who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants."1

The court say, in Adams v. Iron Cliffs Co.: "Nor does it make any difference that the servant guilty of the negli

1

Adams v. Iron Cliffs Co., 78 Mich. 288, 44 N. W. 270; Smith v. Potter, 46 Mich. 263, 9 N. W. 273.

The founder in a blast furnace, having charge of the inside work therein, is a fellow servant of the engineer of the locomotive used in moving cars on the premises. Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N. W. 270.

Where an employer furnishes suitable materials and employs competent workmen to construct a scaffold to be used in putting on a cornice, and the same scaffolding is subsequently used by painters, the carpenters and painters are fellow servants. Hoar v. Merritt, 62 Mich. 386, 29 N. W. 15.

Where the train dispatcher has absolute control of the running of its trains, he is not a fellow servant of those operating trains who are subject to his directions. Hunn v. Railway Co., 78 Mich. 513, 44 N. W. 502.

A car inspector is not the fellow servant of a brakeman. Morton V. Railway Co., 81 Mich. 423, 46 N. W. 111.

A section hand is a fellow servant with a conductor and engineer. Harrison v. Railway Co., 79 Mich. 409, 44 N. W. 1034.

Inspectors of premises and machinery are not fellow servants of other employés. Van Dusen v. Letellier, 78 Mich. 492, 44 N. W. 572.

One to whom the master gives the entire charge of selection of materials and construction of a runway for coal, and who employs and directs the employés using it, is a vice principal. Brown v. Gilchrist, 80 Mich. 56, 45 N. W. 82.

A mill foreman, whose duty it is to keep the machinery in repair,

gence is a servant of superior authority, unless such superior servant arises to the grade of the alter ego of the master."

The rule stated is sometimes applied in this state with extreme liberality. It was held that a servant who worked in the sawmill of a company was a fellow servant of men

is not the fellow servant of those who use it. Roux v. Lumber Co., 94 Mich. 607, 54 N. W. 492.

An assistant roadmaster, in control of a gang of men, and with power to direct their work and discharge any of them, is a superior, and not a fellow servant with such. Palmer v. Railway Co., 93 Mich. 363, 53 N. W. 397.

A yardmaster, having power to hire and discharge men, and assign and direct their work, is not a fellow servant with a switchman. Lyttle v. Railway Co., 84 Mich. 289, 47 N. W. 571.

Where it is the duty of a sawmill hand to go down under the band saw when the machinery is not in motion, and clean out the sawdust, such employé is the fellow servant of the engineer, who may start the wheel and cause him injury. Bergstrom, v. Staples, 82 Mich. 654, 46 N. W. 1035.

The master's servants engaged in digging a trench in his lumber yard, and other employés engaged in handling lumber therein, are rot fellow servants. The former are performing a master's duty as to premises. Sadowski v. Michigan Car Co., 84 Mich. 100, 47 N. W. 598.

Brakeman and conductor are fellow servants. Smith v. Potter, 46 Mich. 258, 9 N. W. 273.

Brakeman and employé loading cars are fellow servants. Day v. Ralway Co., 42 Mich. 523, 4 N. W. 203.

Where the employer furnishes sufficient sound appliances for doing the work, he is not responsible for the selection of a faulty one by a servant, whereby another is injured. Kehoe v. Allen, 92 Mich. 464, 52 N. W. 740.

Where a servant unnecessarily used a defective tool, others not defective being furnished, by which an employé was injured, the offending and injured employés were fellow servants. Rawley v. Colliau, 90 Mich. 31, 51 N. W. 350.