duties pertain to the movement and operation of trains, unloading of freight, etc., and not to the appliances.

It is perfectly consistent to hold that, so long as there were others whose duty it was to look after the condition of the permanent structures, the station agent's duties in respect to obstructions related to those of a temporary character which might impede the passage of trains, and that his duties in this respect were of a similar character to those required of a switch tender or an ordinary car repairer. If a freight conductor had temporarily, yet neg ligently, left the main track obstructed with cars, it would not be contended for a moment but that his act in that respect was the act of a servant.

So it may well be said that, with the exception of what was said in the Toner Case, the decisions of this court upon the question under discussion, commencing with the case of Brabbitts v. Railway Co., have been consistent.

In this state the court is committed to the rule that an employé, when using the premises or ways of the company in going directly to and returning from his work, whether on foot or riding upon the master's trains, is at such times, and under such circumstances, to be considered in the service of the master, to the extent that if he receive injury through the negligence of other employés in operating such trains, or in the use of such premises, the master is not responsible to him therefor.48

This doctrine may be said to be of general application in this country, though, under some peculiar conditions existing, cases may be found which seem to hold a contrary view. If the employé was liable to pay fare, or by the terms of his employment it could be exacted of him, then a different rule would prevail. The character of the

"Ewald v. Railway Co., 70 Wis. 420, 36 N. W. 12, 501.

employment which such employé is engaged to perform does not enter into consideration. He becomes at such times, and under such circumstances, a fellow servant of employés negligently causing him injury.

The cases in other states cited in footnote,49 among many others, support the foregoing statement of the rule. A person who voluntarily assists, and without expectation of remuneration, in the performance of a work, at the request of the master or his representative for the time being, thereby becomes a servant, subject to the same protection, and assuming the same risks, as one regularly employed.50

It is perhaps unnecessary to state, as the rule prevails everywhere, that it is the duty of the master to provide a sufficient number of competent servants to perform the work required in a reasonably safe manner.51

In 1875 the legislature enacted a co-employé law, which was as follows: "Every railroad corporation shall be liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other agent or servant thereof, without contributory negligence on his part, when sustained within this state, or when such agent or servant is a resident of, and his contract of employment

Gilman v. Eastern R. R., 10 Allen, 233; Gillshannon v. Stony B. R. R., 10 Cush. 228; Seaver v. Boston & M. R. R., 14 Gray, 466; Ryan v. Cumberland Valley R. Co., 23 Pa. St. 384; Tunney v. Midland Ry. Co., L. R. 1 C. P. 291; Higgins v. Railroad Co., 36 Mo. 418; Kansas Pac. Ry. Co. v. Salmon, 11 Kan. 83; Russell v. Railway Co.. 17 N. Y. 134; McQueen v. Railway Co., 30 Kan. 689, 1 Pac. 139; Vick v. Railway Co., 95 N. Y. 267; Ross v. Railroad Co., 5 Hun, 488.

50 Johnson v. Ashland Water Co., 71 Wis. 553, 37 N. W. 823; Flower v. Pennsylvania R. Co., 69 Pa. St. 210; New Orleans, J. & G. N. R. Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356; Street Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333.

1 Johnson v. Ashland Water Co.. 71 Wis. 553, 37 N. W. 823.

was made in, this state; and no contract, rule, or regulation between any such corporation and any agent or servant shall impair or diminish such liability." 52

This statute was repealed by chapter 232, Laws 1880; the common-law rule being in force until 1889, when the following act was passed: "Every railroad corporation doing business in this state shall be liable for damages sustained by any employé thereof within this state, without contributing negligence on his part, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, yardmaster, conductor, or engineer, or of any other employé who has charge or control of any stationary signal target, point, block, or switch." 53 This act was repealed in 1893, and the following law enacted: "Every railroad or railway company operating any railroad or railway, the line of which shall be, in whole or in part, within this state, shall be liable for all damages sustained within this state by any employé of such company, without contributory negligence on his part. First. When such injury is caused by any defect in any locomotive, engine, car, rail, track, machinery, or appliance required by said company to be used by its employés in and about the business of such employment, when such defect could have been discovered by such company by reasonable and proper care, tests, or inspections; and proof of such defect shall be presumptive evidence of knowledge thereof on the part of such company. Second. Or while such employé is so engaged in operating, running, riding upon, or switching passenger or freight or other trains, engines, or cars, and while engaged in the performance of his duty as such employé, and while such injury shall have been caused by the carelessness or negligence of any other employé, officer, or agent of

62 Chapter 173, Laws 1875.

Chapter 438, Laws 1889.

such company in the discharge of, or for failure to discharge, his duties as such. No contract, receipt, rule, or regulation between any employé and a railroad company shall exempt such corporation from the full liability imposed by this act." 54

"Chapter 220, Laws 1893, approved April 17, 1893.

CHAPTER XVIII.

FELLOW SERVANTS (Continued).

THE RULE IN KENTUCKY.

The doctrine as to superior and subordinate is recognized, p. 366.

Difference in department immaterial, p. 367. Master liable where fellow servant was guilty of gross negligence, p. 368.

THE RULE IN WYOMING.

The rule is not clear, p. 368.

Mere difference in grade immaterial, but an employe intrusted with superintendence of business is a vice principal, p. 369.

Master's duties and the relation of agent performing them same as stated in rule of federal court, p. 369.

THE RULE IN LOUISIANA.

Substantially the same as in New York, p. 369. Doctrine of superior and subordinate recognized, p. 369.

THE RULE IN ARIZONA.

Probably follows Illinois rule, p. 370.

THE RULE IN RHODE ISLAND.

Servant performing master's duty a vice princi

pal, p. 370.