the others he is a fellow servant. That he may occupy such a dual position was held in the case of Miller v. Railway Co.23

The courts of this state, in late cases, seem to be influenced, to some extent, by the legislation of other states, in restricting the application of the rule as to fellow serv ants; and the inconsistency of recent decisions with former ones, if any, will be accounted for by this circumstance.2+ The department rule is recognized. The court say:

pany's main track, under direction of a foreman, having no connection with the train service, is not a fellow servant of train operatives. Dixon v. Railway Co., 109 Mo. 413, 19 S. W. 412.

A foreman in charge of laborers in moving the roof of a railroad company's building is a vice principal, and not a fellow servant with such laborers. Sullivan v. Railway Co., 107 Mo. 66, 17 S. W. 748.

A section foreman is not a fellow servant with sectionmen under his orders, in respect to the performance of the master's duty in directing the work in his charge. Schroeder v. Railway Co., 108 Mo. 322, 18 S. W. 1094.

A brakeman of a freight train and the fireman upon another are fellow servants. Relyea v. Railway Co., 112 Mo. 86, 20 S. W. 480.

A brakeman in a switch gang is a fellow servant with the engineer in charge of the switch engine. Warmington v. Railway Co., 46 Mo. App. 159.

Where a brakeman failed to set brakes on cars left on main track, whereby they ran down a grade, and collided with an approaching train, injuring the fireman, it was held that, as to such act, he was the fellow servant of such fireman. Relyea v. Railway Co. (Mo. Sup.) 19 S. W. 1116.

Railroad section hands engaged in ballasting the track with stone which is hauled to them on a construction train, and unloaded by the trainmen, are in a common employment with such trainmen, and are their fellow servants. Parker v. Railway Co., 109 Mo. 362, 19 S. W. 1119.

109 Mo. 350, 19 S. W. 59.

"Schlereth v. Railroad Co. (Mo. Sup.) 19 S. W. 1134; Dixon v. Railroad Co., 109 Mo. 413, 19 S. W. 413.

"We believe it is conceded on all hands that there are certain duties personal to the master, and for the nonperformance of which, resulting in an injury, he is liable even to a servant. Thus, he must observe due care in furnishing suitable machinery and appliances, in seeing that the machinery and appliances are kept in repair, in the selection of competent and trustworthy servants, in making suitable rules and regulations for the conduct of a complex business, and in seeing that youthful persons receive proper warning. It is often said that the servant intrusted with the performance of those duties personal to the master is not a fellow servant with those engaged in the prosecution of other work; but such statements are misleading, and have been the source of much trouble. The master is liable for a negligent performance of those duties, no matter by or through whom he undertakes to perform them. It is therefore evident that the question as to who are fellow servants, within the rule of exception, cannot be deter mined from expressions found in those cases which have to deal with some default or alleged default of the master in the performance of some personal duty." 25 In Parker v. Railway Co. there is a very elaborate discussion of the doctrine of fellow servants by Justice Black, and also in a dissenting opinion by Justice Thomas. The discussion of the former is a strong plea for the Illinois rule of coassociation. He concludes by saying: "Guided by the real reason for the rule, it seems to us it should be applied only in those cases where the servant injured and the one inflicting the injuries are so associated and related in their work that they can observe and have an influence over each other's work, and can report delinquencies to a common correcting power or head.

In short, they should be fellow

"Parker v. Railway Co., 109 Mo. 362, 19 S. W. 1127.

servants in fact, and not simply in dialectic theory. If in separate, distinct departments, so that the circumstances just stated do not and cannot exist, then they are not fellow servants in any just or fair meaning of the rule. The mere fact that a defective appliance, causing injury, was constructed by a fellow servant, does not relieve the master from liability therefor; but he is not liable if he furnished suitable materials for the appliances, and competent workmen to construct it, and intrusted them with its construction as part of the work which they were employed to perform, and one of them is injured in its construction by reason of a defect therein. All so engaged, as to each other,

are fellow servants." 26

"Jones v. Packet Co., 43 Mo. App. 398.

CHAPTER XVII.

FELLOW SERVANTS (Continued).

THE RULE IN TEXAS.

Servants to whom the master has delegated his own duties represent him, p. 335.

Doctrine as to difference in branch or department of work not approved, p. 336.

The rule as to the character of the employment is recognized to some extent, p. 336.

Servant in charge of special department of the business, with power to employ and discharge servants, not a fellow servant of those under his control, p. 337.

Co-employes' statute, p. 337.

THE RULE IN NORTH CAROLINA.

The rule as to master's duty in furnishing appliances, etc., same as in New York, p. 340.

Test as to relation as fellow servants is the offending servant's authority to hire and dis.harge servants, p. 340.

Not an invariable test, however, p. 341.

THE RULE IN VIRGINIA.

Servant performing master's duties represents him, p. 341.

Statement as to what these duties are, p. 342. Fellow servants are co-employes, engaged in the same department of service, thrown together in the performance of a common duty, and having

opportunity to judge of each other's liability and qualification, p. 343.

Employes in different departments not fellow serv

ants, p. 343.

Doctrine as to superior and subordinate is recognized, p. 344.

THE RULE IN MINNESOTA.

The general features of the New York rule are recognized, p. 344.

Master cannot delegate duty in regard to furnishing suitable appliances, etc., p. 344.

Doctrine of superior and subordinate not recognized, p. 344.

Nature of service determines whether employes are fellow servants, p. 347.

All engaged in construction of road or appliances are fellow servants, without regard to rank, grade, or department, p. 347.

Servants making repairs represent the master, p. 348.

Liability of railroad companies declared by statute, p. 348.

THE RULE IN COLORADO.

The rule stated, p. 349.

Agents charged with duty of procuring and inspecting machinery and appliances, and maintaining them in repair, are not fellow servants of those using the same, p. 350.

Department theory not recognized, p. 351.

The doctrine of superior and subordinate is recognized, p. 352.