v. Parker, 100 Ind. 181; Atlas Engine Co. v., and Samuel Maitland as engineer, and George Randall, 100 Ind. 293; Krueger v. Louisville, Hunn as fireman, left Bay City, going south, N. A. & C. R. Co. 9 West. Rep. 247, 111 Ind. with orders to run wild to Rives Junction, over 51; Ohio & M. R. Co. v. Collarn, 73 Ind. 261. the Jackson, Lansing & Saginaw Railroad, The growing sentiment in favor of holding leased and operated by the defendant Company. the master responsible for the proper conduct On the same morning engine No. 177, without of all the various branches of his business by any train, was proceeding north over the same those who are put in charge of them by him, road, under the charge of Nilson Napier as with control and direction over other servants conductor, Robert Mills, engineer, and Thomas intrusted to them, is favored by the courts of Looney, fireman. Both engines were run unnearly, if not quite, every State in the Union, der orders by telegraph from one Kilmer, a as well as the federal courts. train dispatcher of Bay City. It was the duty of Kilmer, as train dispatcher, to establish a meeting point for these two engines, under a rule adopted by the defendant Company which reads as follows: "Rule 133. When an order is given by telegraph for two or more trains to meet at a station, the train dispatcher must first order the green signal displayed at such meeting point by the operator, and receive assurance from him that the signal has been displayed before giving orders to either train. In ordering one train to be held for another, the dispatcher will order each train held for the other." Kilmer established such a meeting point at Saginaw City, and notified engine 120 of that fact, but neglected to notify engine No. 177, and gave no order to hold this engine at that point. Napier, the conductor of No. 177, About 3 o'clock on the morning of December reached Saginaw City, and saw the green sig 30, 1885, engine No. 120, with a way car, un-nal, and found the order there to hold W. Ď. der the charge of W. D. Loomis as conductor, Loomis, conductor of No. 120, but no order

Schultz v. Chicago, M. & St. P. R. Co. 18 Wis. 375; Berea Stone Co. v. Kraft, 31 Ohio St. 287; Little Miami R. Co. v. Stevens, 20 Ohio, 415; Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St. 201; Mad River & L. E. R. Co. v. Barber, 5 Ohio St. 541; Whaalan v. Mad River & L. E. R. Co. 8 Ohio St. 249; Pittsburg, Ft. W. & C. R. Co. v. Devinney, 17 Ohio St. 197: Cowles v. Richmond & D. R. Co. 84 N. C. 309: Galveston, H. & S. A. R. Co. v. Delahunty, 53 Tex. 206; McCosker v. Long Island R. Co. 84 N. Y. 77; Lake Shore & M. S. R. C. v. Lavalley, 36 Ohio St. 221; Shearm. & Redf. Neg. § 96; Wharton, Neg. § 205.

Champlin, J., delivered the opinion of the

court:

result, and not as to the means, is an independent employment. Edmundson v. Pittsburgh, McK. & Y. R. Co. 1 Cent. Rep. 869, 111 Pa. 316.

Where a mechanic is employed by the owner of a building to make repairs, with no specific arrangement as to conditions, his employment is independent, imposing on the employé responsibility for negligence of himself or those aiding him; and the owner of the building is not liable therefor. Hexamer v. Webb, 2 Cent. Rep. 439, 101 N. Y. 377.

When a contractor takes entire control of the work, the employer, if he is not negligent in his selection, is not liable to third parties for the contractor's want of care in the performance of it. Authorities cited in Lancaster Ave. Imp. Co. v. Rhoads, 8 Cent. Rep. 214, 116 Pa. 377.

A mining corporation which is having a shaft constructed by contractors who have sole charge of all the works is not liable for an injury to an employé of the contractors, caused by the breaking of a rope in the shaft from a defect of which the contractors had notice, and whose duty it was to remedy it. Lendberg v. Brotherton Iron Min. Co. 75 Mich. 84.

A gas company is not liable for injuries from an explosion of gas, due to the negligence of the contractor laying its pipes, before it had accepted the work. Chartiers Valley Gas Co. v. Lynch, 10 Cent. Rep. 625, 118 Pa. 362.

But where a contractor lays a railroad track under an agreement that those in charge of the construction train shall be employed and paid by the company, and not by himself, and that he shall have no control of the train in any manner, the company is liable for injuries to a person employed by him, resulting from negligence to those in charge of the construction train. Chicago, B. & Q. R. Co. v. Clark (Neb.) 42 N. W. Rep. 703.

A grain-trimmer employed by a contractor to work in trimming a cargo of grain on a steamship is not a fellow servant with a mate and seamen of the ship, through whose negligence he is injured. Crawford v. The Wells City, 38 Fed. Rep. 47.

Master liable for acts of agent or representative.

An employer is liable for injury caused by one employé to another, by virtue of authority conferred by him upon the employé causing the injury. Mason v. Edison Mach. Works, 24 Blatchf. 93, 28 Fed. Rep. 228.

Employers may put in their place an agent or representative in carrying on their work, for whose default and negligence they will be liable. Smith v. Oxford Iron Co. 42 N. J. L. 467.

An employer cannot escape liability, even to an employé, for the nonperformance or negligent performance of a duty which he owes to an employé, merely by intrusting its performance to some other employé or agent. Pike v. Chicago & A. R. Co. 41 Fed. Rep. 95; Krueger v. Louisville, N. A. & C. R. Co. 9 West. Rep. 247, 111 Ind. 51; authorities cited in Pennsylvania Co. v. Whitcomb, 9 West. Rep. 825, 111 Ind. 212.

A railroad company is liable when its officers or agents who are invested with a controlling or superior duty in furnishing suitable machinery are, in discharging it, guilty of negligence, from which injury results to a servant of the company. Hough v. Texas & P. R. Co. 100 U. S. 213 (25 L. ed. 612).

The master is liable for the negligence of the agent or subordinate to whom he has given the entire charge of his business or a distinct part of it. Lewis v. Seifert, 9 Cent. Rep. 755, 116 Pa. 628.

And his liability is the same although the employé deviates from the master's instructions. Atchison, T. & S. F. R. Co. v. Randall, 40 Kan. 421.

Where plaintiff, while in the exercise of care in performing his duties in removing a wrecked car, was injured through negligence of a direct representative of the railroad company which employed him, he may recover compensation. Sheldon, J., dissents. Wabash, St. L. & P. R. Co. v. Hawk, 10 West. Rep. 137, 121 III. 259.

Whenever a master delegates to another the performance of a duty to a servant which rests upon himself absolutely, he is liable for the manner in

reason that his negligence was that of a fellow servant. (3) The testimony relative to damages, and the charge of the court in reference thereto, were erroneous."

The declaration was not demurred to. It states a cause of action, and is sufficient after verdict.

for himself. He received his clearance, and proceeded north three or four miles, and met engine No. 120 upon a curve at about 3 degrees and 20 minutes. The respective engines were running at from ten to twelve miles an hour. The collision resulted fatally to Hunn. At the time a thick fog was prevailing, the night was dark, and the view at the curve was obstructed The second ground above stated, if sustained, by houses and other objects, which prevented prevents a recovery in the action, and raises the the approaching engines from being seen from most important point in the case. The court each other a distance of from three to four car-long ago announced and has steadily adhered lengths. The accident occurred within the to the doctrine that a master is not liable to a limits of the Saginaw yards. The time-card servant for injuries received through the negrule, which was well known to all employés of ligence of a fellow servant while engaged in a the Company, required "that trains will run common employment. Mich. Cent. R. Co. v. carefully, and under full control, through all Leahey, 10 Mich. 193; Davis v. Detroit & M. R. yards, and irregular trains must keep sharp Co. 20 Mich. 105; Mich. Cent. R. Co. v. Dolan, lookout for switching engines." 32 Mich. 510; Mich. Cent. R. Co. v. Austin, 40 Mich. 247; Quincy Mining Co. v. Kitts, 42 Mich. 34; Day v. Toledo, C. S. & D. R. Co. 42 Mich. 523; Mich. Cent. R. Co. v. Smithson, 45 Mich. 212; Mich. Cent. R. Co. v. Gilbert, 46 Mich. 176; Smith v. Potter, 46 Mich. 258; Henry v. Lake Shore & M. S. R. Co. 49 Mich. 495; Greenwald v. Marquette, H. & O. R. Co. 49 Mich. 197; Ryan v. Bagaley, 50 Mich. 179; Gardner v. Mich. Cent. R. Co. 58 Mich. 590.

The plaintiff recovered a judgment in the court below, and the defendant asks its reversal upon several grounds, the principal of which are the following: (1) The declaration was insufficient, in not setting forth with more particularity the duty of the defendant, the breach of duty which caused the accident, and the cause of the accident. (2) The only negligence proved upon the trial was that of the train dispatcher, and no recovery can be had, for the!

The rule is a salutary one in all cases of fel

which the duty is performed. Lindvall v. Woods tion of his servants. Loughlin v. State, 7 Cent. Rep. Minn.) 4 L. R. A. 793.

A foreman in charge of men employed in raising a part of a railroad track is an agent of the company, and not a fellow servant of one of the men under his orders. Stephens v. Hannibal & St. J. R. Co. 96 Mo. 207.

If the duty of keeping a bridge in repair was intrusted by the company to its foreman, his negligence is that of the company. Bowen v. Chicago, B. & K. C. R. Co. 14 West. Rep. 744, 95 Mo. 268.

Where defendant, engaged in mining quartz, appointed a superintendent to supervise and manage its mining operations, work done by his employé was the same as if done by himself, and defendant was liable for injury resulting therefrom. McDade v. Washington & G. R. Co. (D. C.) 3 Cent. Rep. 797,5 Mackey, 144.

Agents charged with the duty of procuring machinery, or with the duty of inspecting and keeping the same in suitable repair, are not to be regarded as fellow servants with employés laboring in the business where such machinery is used. Wells v. Coe, 9 Colo. 159; Kelly v. Erie Teleg. & Teleph. Co. 34 Minn. 321.

The rule that the employé assumes all the risks incident to the service he enters does not apply where a superior agent representing the master orders the employé to do a designated act, in the performance of which the latter is injured by the superior's negligence. Taylor v. Evansville & T. H. R. Co. (Ind.) 6 L. R. A. 584.

Combined negligence of master and co-servant. If the negligence of the master is combined with the negligence of a fellow servant, and the two contribute to the injury of another servant who is free from negligence, the master is liable. Franklin v. Winona & St. P. R. Co. 37 Minn. 409.

A master, to be exempt from liability to a servant for negligence of fellow servants, must himself have been free from negligence. Baltimore & O. R. Co. v. McKenzie, 81 Va. 71.

70, 105 N. Y. 159.

In legal contemplation his negligence was the negligence of the master. Baltimore & O. R. Co. v. McKenzie, supra: Babcock v. Old Colony R. Co. (Mass.) 23 N. E. Rep. 325.

A master is responsible for an injury to a servant from the combined negligence of the master and a fellow servant, notwithstanding the contributory negligence of such servant. Faren v. Sellers, 39 La. Ann. 1011; Fisk v. Central Pac. R. Co. 72 Cal. 38.

If the negligence of a railroad company contributes to-that is to say, has a share in producing-an injury to an employé, the company is liable, even though the negligence of a fellow servant was also contributory. Grand Trunk R. Co. v. Cummings, 106 U. S. 700 (27 L. ed. 266).

A master is not released from liability for an injury to a servant from a defective machine, by the fact that the operator of the machine was negligent in managing it, where his negligence simply contributed to the injury caused by the master's negligence. Sherman v. Menomonee River Lumber Co. 1 L. R. A. 173, 72 Wis. 122.

In order to render the master liable, the superior must stand so far in the place of the master as to be charged in the particular matter from which the injury results with the performance of a duty which the master owes to a servant. Louisville & N. R. Co. v. Lahr, 86 Tenn. 335.

If a section-master was intrusted by a railroad company with the performance of the duty, or a part of the duty, of supervision of the tracks, which a reasonable regard for the safety of its employés required the corporation to perform, such company is liable for his negligence. Babcock v. Old Colony R. Co. supra.

Liability of master for injuries caused by his negligence. See notes to Sherman v. Menomonee River Lumber Co. (Wis.) 1 L. R. A. 173; Griffin v. Boston & A. R. Co. (Mass.) 1 L. R. A. 698.

Liability for negligence of vice-principal or agent. See note to Muhlman v. Union Pac. R. Co. (Colo.) 2 L. R. A. 192.

The master is responsible for the negligent act of one servant causing injury to a co-servant, where such servant was, by the appointment of the master, charged with the performance of duties which the master was bound to perform for the protec- | W. R. Co. (Mo.) 5 L. R. A. 735.

Fellow servants, who are. See notes to Hussey v. Coger (N. Y.) 3 L. R. A. 559; Lindvall v. Woods (Minn.) 4 L. R. A. 793; Murray v. St. Louis Cable &

It was upon this principle that in Ryan v. Bagaley, 50 Mich. 179, this court held the owner of a mine liable for the negligence of the mining captain. The question was made to turn upon whether the mining captain was intrusted with the management of the mine without interference. If he was, in respect to legal responsibility his negligence was the negligence of the defendant.

low servants where the master bas exercised | other words, while the servant assumes the risk due care in the selection of competent em- of the negligence of fellow servants, he does ployés, and has become pretty generally recog- not assume the risk of negligence in the master nized by the courts of last resort in this coun- himself, or in anyone to whom the master try. But the question of who are fellow may see fit to intrust his superintending authorservants still perplexes the judicial mind, and ity." gives rise to a great diversity of opinion. Some courts go so far as to hold that, if the master exercises due care in selecting employés, his full duty towards his servants is discharged, even though he selects one or more agents to represent him in overseeing, he controlling and carrying on the business, however large and extended it may be, if he retains the right of employing and discharging his servants. Others hold that so long as they are employed and It now becomes pertinent to inquire what paid by the same master, and are engaged in a the duties of Kilmer, the train dispatcher, common enterprise, they are fellow servants. whose negligence caused the death of the fireBut this is the extreme, and denies substantial- man, Hunn, were. The division superintendly all liability of the master in a vast majority ent's name was W. A. Vaughn. In receiving of cases where enterprises of any considerable dispatches from the train dispatcher, the conmagnitude are carried on. Perhaps no satis- ductors and engineers never act upon them factory rule has yet been formulated by which unless signed with the initials "W. A. V.” it may in all cases be determined who are fel- Dispatches delivered by the operator so authenlow servants, in such sense as to shield the ticated were considered authoritative, and were master from the negligence of his servant. We acted upon. Mr. Hair was the chief train dismay start, however, where the rule is clear that patcher at Bay City, and he had six train disa master is liable to his servant for an injury patchers under his supervision in the Bay City caused by his own negligence. The master office, only one of whom, however, was on duty may not choose to give his personal attention at a time. He testified that the train dispatch to his business, and may desire to put another ers signed the initials "W. A. V." to their disin his place, to manage and control it for him patches, and were authorized to do so, and that as fully as he might do if personally present. the division superintendent, Mr. Vaughn, never Such person is his alter ego, and the master is sees them at all, and knows nothing about as responsible for his acts of omission and com- them, and does not even know the instructions mission, while engaged in the business intrust- in regard to train dispatchers. He was asked: ed to him, as if he did such acts himself. It is the duty of the master to supervise, direct and control the operations and management of his business, so that no injury shall ensue to his employés through his own carelessness or negligence in carrying it on, or else to furnish some person who will do so, and for whom he must stand sponsor. This is true of natural persons, and it is especially true of corporations, who can only act through natural persons. Whenever the business conducted by the person selected by the master is such that the person selected is invested with full control (subject to no one's supervision except the master's) over the action of the employés engaged in carrying on a particular branch of the master's business, and, acting upon his own discretion, according to general instructions laid down for his guidance, it is his province to direct, and the duty of the employés to obey, then he stands in the place of the master, and is not a fellow servant with those whom he controls.

In Quincy Mining Co. v. Kitts, 42 Mich. 39, this court said: "This duty of due care in the employment and retention of competent servants is one the master cannot relieve himself of by any delegation, and, if it becomes necessary to intrust its performance to a general manager, foreman or superintendent, such officer, whatever he may be called, must stand in the place of his principal, and the latter must assume the risks of his negligence. The same is true of the general supervision of his business. If there is negligence in this, the master is responsible for it, whether the supervision be by the master in person, or by some manager, superintendent or foreman to whom he delegates it.

In

Q. Who has the control of trains on the Jackson, Lansing & Saginaw division, or who did have at the time of this accident?

A. Mr. Kilmer, in regard to moving them backwards and forwards; the entire charge at that time; nobody else has any right to interfere.

He further testified that no more than one person has control of the trains at any one time, and no other train dispatchers would have the right to interfere, not even the division superintendent, or the superintendent, or the president of the Company, unless they wanted to relieve the train dispatchers themselves. If they wanted to take his program, and sign it, by these orders they could do so; they have the authority. They would have to receipt for it, and take upon themselves the duties.

Rule 124 of the Company reads as follows: "The general and assistant superintendent, the division superintendent and the train dispatchers on duty are the only persons authorized to move trains by special order, and but one person on the same circuit shall be permitted to move trains by special order at the same time."

Rule 127 is as follows: "The train dispatcher on duty will have full power to run any train or engine by telegram that he may think proper. No irregular train or engine will be allowed to run upon the road, either upon a single or double track, without his knowledge and instructions, unless they can follow a regular train under a red flag, and then only to a station where they can obtain an order," etc.

Mr. Vaughn, the division superintendent

over the divison of defendant's road, testified | must hear and obey. . . . It must also devise as follows:

There are some authorities which hold that | curring cause was the negligence of a fellow a train dispatcher, and those operating trains servant in running at a greater rate of speed under his control, are fellow servants. It than the rules allowed. The court gave full seems to me, however, that those authorities effect to the rules in his charge to the jury, so do not give sufficient prominence to the posi- far as they were material, by instructing the tion which the train dispatcher occupies in op- jury that "if you find, as a matter of fact, that erating a railroad. He is the corporation for the collision resulted entirely from the neglithe time being, and exercises powers which gence of one or both of the engineers of engines neither the superintendent, nor the president, No. 120 and 177, the defendant is not chargenor any other officer or agent of the corpora- able with the consequence of that negligence.' tion, can interfere with.