duty merely by the appointment of a competent agent to perform it, and that for its negligent performance by such agent the master is responsible. (c) And his duty is not discharged by the exercise of due care in hiring competent servants merely, but the same care must still be exercised in continuing them in service," and if he retains an incompetent servant, after knowledge of his incompetency, or when, in the exercise of due care, he ought to have known it, he is as responsible as if he had been wanting in the same care in hiring.(d) If the master has exercised due care in the selection and retention of his servants, he is not answerable for injuries to a servant through the negligence of a fellow-servant.

WHO ARE FELLOW-SERVANTS. Upon this question there is no little difference of opinion among the authorities. The English doctrine, and that held by the weight of authority in this country, is, that all the servants of the same master, engaged in carrying forward the common enterprise, although in different departments, widely separated or strictly subordinated to others, are to be regarded as fellow-servants, bound by the terms of their employment to run the hazard of any negligence of any of their number, so far as it operates to their detriment.(e) In other words, where the general object to be accomplished is one and the same, the employer the same, the several servants deriving authority and compensation from the same source, all employes and agents, from the highest to the lowest, are regarded as fellowservants, no matter how remote from each other they may usually be occupied, or how distinct in character and nature may be their respective duties and employments, and without regard to any difference in rank or authority.(f)

FELLOW-SERVANTS, ALTHOUGH in Different DEPARTMENTS of Labor. "In order that workmen should be fellow-servants," said Lord CRANWORTH, in Bartonshill Coal Co. v. Reid, (g) "it is not necessary that the workman causing and the workman sustaining the injury should both be engaged in performing the same or similiar acts. The driver and guard of a stagecoach, the steersman and the rowers of a boat, the workman who draws the red-hot iron from the forge and those who hammer it into shape, the engineman who conducts a train and the man who regulates the switches or the signals, are all engaged in common work. And so, in this case, the man who lets the miners down into the mine, in order that they may work the coal, and afterwards brings them up, together with the coal which they have dug, is certainly engaged in a common work with the miners themselves. They are all contributing directly to the common object of their common employers in bringing the coal to the surface." To constitute the relation of fellow-servants, "they need not at the time be engaged in the same particular work. It is

(c) Flike v. Boston, etc., R. Co. 53 N. Y. 549, 553; Gilman v. Eastern R. Co. 13 Allen, 440; Quincy Mining Co. v. Kitts, 42 Mich. 31; Booth v. Boston, etc., R. Co. 73 N. Y. 38.

(d) Shanny v. Androscoggin Mills, 66 Me. 418; Michigan, etc., R. Co. v. Dolan, 32 Mich. 510, 513. But see Chapman v. Frie R. Co. 55 N. Y. 579. (e) 1 Real. Railw. § 131.

(f)Wilson v. Merry, L. R. 1 H. L. Sc. App. 326; Bartonshill Coal Co. v. Reid, 3 Macq. 295; Allen v. Gas Co. L. R. 1 Exch. Div. 251; Rourke v. White Moss Colliery Co. L. R. 1 Com. Pl. Div. 556; Railroad v. Fort, 17 Wall. 553; Blake v. Maine Cent. R. Co. 70 Me. 60; Albro v. Agawam Canal Co. 6 Cush. 75; Gilshannon v. Stony Brook R. R. 10 Cush. 228.

(g) 3 Macq. 295.

sufficient if they are in the employment of the same master, engaged in the
same common work, and performing duties and services for the same general
purposes." (h.)

Thus, in a recent case in the English court of appeals, (¿) where the defend-
ants, brewers, contracted with one Ansell to unload a barge of coal for the
use of the brewery, at so much per ton, he to hire his help and pay them out
of the money received from defendants, but having no power to discharge
any employe without the defendant's consent, it was held that a laborer,
employed by Ansell in unloading the coal, was a fellow-servant with those at
work in the brewery (j). The superintendent of the mill and a common spin-
ner;(k) a master of a vessel and the mate;(7) the heads of different depart-
ments of work in the same coal mine, under a common superintendent;(m) a
timberman, whose duty it was to attend to the erection and repair of bridges
in a mine, and a miner;(n) an under-ground workman in a coal-pit and the
engineer at the top of the pit;(0) and an “underlooker" in a coal mine, whose
duty it was to see that the roof was securely propped up, and a common
laborer in the mine,(p)—have been held to be fellow-servants. Applying this
rule to railway service, "all who are engaged in accomplishing the ultimate
end in view that is, the running of the road-must be regarded as engaged
in the same general business, within the rule;" e. g., a locomotive engineer
and a master mechanic of the railroad;(9) a track repairer and those in charge
of the train on which he rode;(r) those in charge of a locomotive and a sec-
tion-man engaged in repairing the track;(s) the carpenter and those in charge
of the train by which he is carried to or from his work, in pursuance of his
contract of service;(t) the carpenter and the employes in charge of a turn-
table;(u) a brakeman and an engineer on the same train;(v) a brakeman on
one train, and the conductor or engineer on another train belonging to the
same company;(w) a track repairer and the fireman or engineer of a passing
train;(x) and the conductor and others in charge of a train sent out to clear
the snow from the track and a snow-shoveler carried on the train.(y)

Even under the English doctrine, the remoteness of the duties performed
is not wholly immaterial to the determination of the question as to who are
fellow-servants. Said Lord Justice COTTON, in Charles v. Taylor:(a) “Many
cases may be put where the master might be liable, as where he carries on two
distinct businesses, and a person employed in one of them is injured by the
negligence of a person employed in the other." The principle upon which

(h) Lehigh Valley Coal Co. v. Jones, 86 Pa. St.
432.

(i) Charles v. Taylor, 38 Law T. (N. S.) 773.
(1) Compare Rourke v. White Moss Colliery
Co. L. R. 1 Com. Pl. Div. 556.

(k) Albro v. Agawam Canal Co. 6 Cush. 75.
(1) Halverson v. Misen, 3 Sawy. 562.

(m) Lehigh Valley Coal Co. v. Jones, 86 Pa. St.
432.

(n) Quincy Mining Co. v. Kitts, 42 Mich. 34.
(0) Bartonshill Coal Co v. Reid, 3 Macq. 266.
(p) Hall v. Johuson, 3 Hurl. & C. 589.
(9) Hard v. Vermont, etc., R. Co. 32 Vt. 473.
(7) Gilshannon v. Stony Brook R. Co. 10 Cush.

(8) Foster v. Minnesota, etc., R. Co. 14 Minn.
360.

(t) Seaver v. Boston, etc., R. Co. 14 Gray, 466.
(u) Morgan v. Vale of Neath R. Co. L. R. 1 Q.
B. 149.

() Pittsburgh, etc., Ry. Co. v. Lewis, 33 Ohio
St. 196.

(w) Pittsburgh, etc., R. Co. v. Devinney, 17
Ohio St. 197.

(r) Whaalen v. Mad River, etc., R. Co. 8 Ohio
St 249.

(y) Howland v. Milwaukee, etc., Ry. co. 51
Wis. 22.

(a) 38 Law T. (N. S.) 773, 775.

such cases would rest may be gathered from the opinion of Justice BLACKBURN in Morgan v. Vale of Neath R. Co.,(b) where he says: "There are many cases where the immediate object on which the one servant is employed is very dissimilar from that on which the other is employed, and yet the risk of injury from the negligence of the one is so much a natural and necessary conse quence of the employment which the other accepts, that it must be included in the risks, which are to be considered in his wages."

The converse of this proposition legitimately follows, and is sustained by some of the Amercan courts. The principle was thus stated by HILLYER, J., in Kielley v. Belcher Silver Min. Co., (c) referred to in the principal case: "That the servant, having voluntarily entered into a contract of service to do a specified work for a specified compensation, has thereby accepted the ordinary perils incident to doing that work; and whenever the negligence of another employe of the same master can be considered an ordinary risk, one which he might reasonably anticipate at the time of making his contract, he accepts also the perils liable to happen through such negligence. And it seems clear that upon this principle those only are fellow-servants for whose negligence, one to another, the master is exempt, who serve in such capacity, and in such relation to the master and each other, that the means of the servants to protect themselves are equal to or greater than those of the master to afford them protection, and that, further than this, justice and policy forbid us to carry the implied portion of the contract of service. Beyond this, an injured servant has as clear title to relief against the master as a stranger, upon the maxim of respondeat superior." If the true reason for the master's exemption is, that the servant has taken the risk of the negligence of his fellows into account when fixing his wages, then he should be held to have assumed only the risks which he could reasonably anticipate when accepting the service.(d) Applying this test, it was held that a draughtsman in a locomotive works was not a fellow-servant with a carpenter employed in "jobbing" for the proprietor, or with laborers engaged in excavating a cellar under the building, under the directions of the carpenter;(e) nor a carpenter in the service of a railway company with those in charge of a train on which he is carried to and from his work;(f) nor a section hand, on a railroad several hundred miles in length, with the conductor and engineer of a train;(g) nor a laborer, employed by a stevedore to unload a vessel, with the mate.(h)

There are other American courts that deny the English doctrine upon this point, but base their conclusion upon different grounds. It is said that the master's exemption rests upon grounds of public policy-upon the expediency of throwing the risk of injury upon those who are best able to guard against the dangers. A master is not, therefore, liable for an injury inflicted by one servant upon another, where the two are co-operating with each other in a particular business at the time of the injury, or are, by their usual duties,

(b) 5 Eest & S. 570, 580; S. C. 33 Law J. (Q. B.)

260.

(c) 3 Sawy. 500.

(d) Baird v. Pettit, 70 Pa. St. 477, 482.

(e) Baird v. Pettit, 70 Pa. St. 477, 482.

(ƒ) O'Donnell v. Allegheny, etc., R. Co. 59 Pa. St 239.

(g) Nashville, etc., R. Co. v. Carroll, 6 Heisk. 347.

(h) Mullan v. Philadelphia, etc., S. S. Co. 78 Pa. St 25. Whether they were fellow-servants was a question for the jury.

brought into habitual consociation, because they have the power of influencing each other to the exercise of constant caution in the master's work (by example, advice, and encouragement, and by reporting delinquencies to the master) in a great, and in most cases a greater, degree than the master. Where the servants have no opportunity for such influence over each other, the reason for the master's exemption no longer exists. Accordingly, in a recent case in Illinois, where this doctrine is elaborately considered and the authorities reviewed, it was held that a railway company was liable to a track repairer, who, while standing by the track, was struck and injured by a piece of coal carelessly thrown from the tender by the fireman of a passing train.(2) Similarly, an engine-driver of a railway has been held not to be a fellow-servant with a laborer in the company's carpenter-shop.(j) And the same doctrine has been held and applied in other states.(k)

FELLOW-SERVANTS, ALTHOUGH ONE IS SUBJECT TO THE AUTHORITY OF THE OTHER. Said COCKBURN, C. J., in the case of Howells v. Landore Steel Co.:(1) "Since the case of Wilson v. Merry, (m) in the house of lords, it is not open to dispute that, in general, the master is not liable to a servant for the negligence of a fellow-servant, though he be the manager of the concern;" and the certified manager of a colliery, appointed under a statute, was held a fellow-servant with a worker in the mine. By the weight of authority in America as well as in England, the fact that the negligent servant is superior in authority to the injured servant, that he hires and may discharge him, and may direct him as to his work, does not enlarge or modify the master's liability.(n)

But this rule is not accepted, without modification, in this country. First. There are a number of authorities that hold that if the master has placed the entire charge of the business in the hands of an agent, exercising no authority and no superintendence of his own therein, such agent represents the master, and for his negligence the master is responsible to his servants.(0) "Owing to the fact that the business of corporations is transacted by means of agents, they would escape the just measure of liability, unless the rule applied to them. In this respect, both as to liability and for protection, they stand on the same footing with individuals."(p) Second. By other authorities the rule is denied altogether, and it is held that if the relation of superior and subordinate is shown to exist between the negligent and the injured servant, the latter being subject to the orders and contract of the former, the master is

(i) Chicago, etc., R. Co. v. Moranda, 93 111.302. (5) Ryan v Chicago, etc., R. Co. 60 I11. 171. (k) Cooper v. Mullins, 30 Ga. 146; Louisville, etc., R. Co. v. Cavens, 9 Bush, 559; Nashville, etc., R. Co. v. Jones, 9 Heisk. (Tenn.) 27. (2) L. R. 10 Q. B. 62.

(m) L. R. 1 H. L. Sc. App. 323.

(n) Murphy v. Smith, 19 C. B. (N. S.) 361; Gallagher v. Piper, 16 C. B. (N. S.) 669; Zeigler v. Day, 123 Mass. 152; Marshall v. Schricker, 63 Mo. 308; Lawler v. Androscoggin R. Co. 62 Me. 463; Peterson v. Whitebreast Coal & Mining Co. 50 Iowa, 673; O'Connell v. Baltimore, etc., R. Co. 20 Md. 212; Malone v. Hathaway, 64 N. Y. 5; Curran v.

Merchants' Manuf'g Co. 130 Mass. 374; McCosker v. Long Island R. Co. 84 N. Y. 77; Keystone Bridge Co. v. Newberry, 95 Pa. St. 246.

(0) Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; Mullan v. Philadelphia, etc., S. S. Co. 78 Pa. St. 25; Gormly v. Vulcan Iron Works, 61 Mo. 492; Kansas, etc., R. Co. v. Little, 19 Kan. 269; Malone Hathaway, 64 N. Y. 5; Beeson v. Green Mountain Gold Mining Co. 57 Cal. 20.

(p) Lehigh Valley Coal Co. v. Jones, 6 Pa. St. 432; Howells v. Landore Steel Co. L. R. 10 Q. B. 62, Blackburn, J.; Allen v. New Gas Co. 1 Exch. Div. 251.

liable.(4) Accordingly, a quarryman and the foreman of the quarry;(r) a brakeman and the engineer or conductor of a freight train;(s) a railroad laborer in building a culvert and the superintendent under whose orders he acted;(t) an architect and a superintendent, having general charge of the erection of a building, and a workman thereon;(u) the "section-boss" on a railroad and the workmen under him ;(c) the conductor of a construction train and a boy of seventeen, employed as a laborer on the train,(w)—have been held not fellow-servants. Third. The test laid down by the New York courts is, that, in order to charge the master, the superior servant must so far stand in the place of the master as to be charged with the performance of duties towards the inferior servant, which, under the law, the master owes to such servant.(x) In the late case of Crispin v. Babbitt, (y) where it was left to the jury to determine whether the "business and financial man" in charge of the defendant's iron works was a fellow-servant with the plaintiff, a laborer in the works, who was injured by the act of the agent in carelessly turning on the steam of an engine by which the plaintiff was standing, Judge RAPELLO states the New York rule thus: "The liability of the master does not depend upon the grade or rank of the employe whose negligence causes the injury. A superintendent of a factory, although having power to employ men or represent the master in other respects, is, in the management of the machinery, a fellow-servant of the other operatives. On the same principle, however low the grade or rank of the employe, the master is liable for injuries caused by him to another servant, if they result from the omission of some duty of the master which he has confided to such inferior employee. ** *The liability of the master is thus made to depend upon the character of the act in the performance of which the injury arises, without regard to the rank of the employe performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance. The converse of the proposition necessarily follows. If the act is one which pertains only to the duty of an operative, the employe performing it is a mere servant, and the master, although liable to strangers, is not liable to a fellow-servant for its improper performance." Hence, as it is the master's duty to furnish his servants with reasonably safe machinery and to keep the same in proper repair, the agent or servant to whom he delegates this duty is not the fellowservant of the one who uses the machinery, as has been decided in a large number of cases, (a) though the contrary is maintained in England and in some American courts. (b) The inspector of the machinery and appliances of a

(9) Little Miami R. Co. v. Stevens, 20 Ohio, 415; Pittsburgh, etc., Ry. Co. v. Devinney, 17 Ohio St. 197, 210; Knoxville Iron Co. v. Dodson, 7 Lea, (Tenn.) 367, 377. Compare Kumler v. Junction, etc., R. Co. 33 Ohio St. 150.

(r) Berea Stone Co. v. Kraft, 31 Ohio St. 287. (9) Cowles v. Richmond, etc., R. Co. 84 N. C. 309. Compare Pittsburgh, etc., Ry. Co. v. Lewis, 33 Ohio St. 196.

(1) Kansas, etc., R. Co. v. Little, 19 Kan. 269. (u) Whalen v. Centenary Church, 62 Mo. 226. (v) Lou'sville, etc., R. Co. v. Bowler, 9 Heisk, (Tenn.) 866.

(w) Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205.

(x) Hofnagle v. New York, etc. R. Co. 55 N. Y. 608; Flike v. Boston, etc., R. Co. 53 N. Y. 519. (y) N. Y. 516.

(a) ruller v. Jewett, 80 N. Y. 46; Booth v. Boston, etc., R. Co. 73 N. Y. 38; Wedgwood v. Chicago, etc.. R. Co. 41 Wis. 478: Shanny v. Androscoggin Mills, 66 Me. 420.

(b) Columbus, etc., R. Co. v. Arnold, 31 Ind. 174; Wonder v. Baltimore, etc., R. Co. 32 Md. 411; Harrison v. Central R. Co. 31 N. J. Law, 293 ; Waller v. South-eastern R. Co. 2 Hurl. & C. 102;