Besides the above, the following late cases are directly in point: Ryan v. Bagaley, 15 Mich. 179 (1883); State v. Malster, 57 Md. 287 (1881); Mayhew v. Mining Co., 76 Me. 100 (1884); Ry. Co. v. Jones, 86 Penn. St. 432 (1878).

The same principle was adopted in a number of English cases (see Murphy v. Smith, 19 C. B. (N. S.) 360 (1865)), and was regarded as settled law until the case of Wilson v. Merry was decided in the House of Lords in 1868, in which it was wholly rejected; L. R., 1 H. L. 326. Lord BLACKBURN, commenting upon this case, says: "The decision of the House of Lords is distinct that the fact that the servant held the position of vice-principalship, does not affect the non-liability of the master for his negligence as regards a fellow-servant:" Howell v. Steel Co., L. R., 10 Q. B. 62 (1874).

The later Massachusetts cases have approved of the rule adopted in Albro v. Agawam Canal Co., above referred to; and hence the English rule and the Massachusetts one is the same. According to it, all servants are under the same control who serve the same master, although the one may in fact occupy the master's place toward the other; and the generally accepted idea of vice-principalship is not recognised.

According to the great weight of opinion, the relation of fellowservants is not changed by the mere fact that one servant is of higher rank in the service than the other, and has power to direct and control him; (see cases following.) Unless one be a vice-principal, all servants of the same master are under the same control, without regard to their relative grade. The most frequent instances of this are the cases of foremen and conductors.

A foreman seldom has power to hire and discharge workmen; he does not act entirely upon his own judgment, being subject generally to the orders and control of a superintendent: he works hand to hand with those under him; in short, he has not the entire charge and control of the business or any department of it. Hence, he is generally held to be a fellow-servant with the workmen under his direction. This has been in terms decided in the following cases— the latest upon this particular point: Doughty v. Penobscot Co., 76 Me. 143 (1884); Brick v. Rd. Co., 98 N. Y. 211 (1885); Canal Co. v. Carroll, 89 Penn. St. 374 (1879); Indiana Car Co. v. Parker, 100 Ind. 181 (1884); Peschel v. Rd. Co., 62 Wis. 338 (1885); State v. Malster, 57 Md. 287 (1881).

Much the same is the position of a conductor of a railway train

towards the other servants upon it; having no general delegation of authority over them, and not being given the entire charge of any branch of the business of running the road, he is considered, by most of the cases, a fellow-servant of such other servants. The latest cases deciding this point are: Cassidy v. Rd. Co., 76 Me. 488 (1884); Slater v. Jewett, 85 N. Y. 61 (1881); Smith v. Potter, 46 Mich. 258 (1881); Pease v. Rd. Co., 61 Wis. 163 (1884).

But the rule that different ranks in service does not alter the relation of fellow-servants as between servants of the same master has not been universally accepted. A contrary view has been upheld in a number of states, and has been lately recognised and adopted in the Supreme Court of the United States.

In Ohio, it has long been settled that any one placed in authority over the servant, with power to control and direct him in the performance of his duties, is the alter ego of the master; or as has been more concisely said: "A servant is not a fellow-servant with one to whom he is subordinate." Hence a foreman is held not a fellow-servant of a workman under his control; a brakeman under the control of a conductor of a train is not a fellow-servant of such conductor: Railroad Co. v. Keary, 3 Ohio St. 201 (1854); Railroad Co. v. Lavalley, 36 Id. 221 (1880).

In holding a foreman of a lumber yard of a railway company, who had power to hire and discharge the laborers under his control, not a fellow-servant of such laborers, the Supreme Court of Illinois said: "When a railway corporation confers authority upon one of its employees to take charge of and control a gang of men in carrying on some particular branch of its business, such employee is the direct representative of the company" towards the men under his control: Railroad Co. v. May, 108 Ill. 288 (1884).

In Tennessee it is said that "the only sound rule is to hold the common superior (in this case the railway company), which can only act through its agents, responsible for all injuries resulting to the subordinate from the negligence of his immediate superior, or the party having control over him." And the court approves of the remark of Judge REDFIELD, that "we would be content to treat all subordinates who were under the control of a superior, as entitled to hold such superior as representing the master:" Redfield on Railways, I. 529 n.; Railroad Co. v. Bowler, 9 Heisk. 866 (1872).

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The same rule prevails in North Carolina and Virginia: Cowles v. Railroad Co., 84 N. C. 309 (1881); Moon v. Railroad Co., Cent. L. J. 33 (1885); s. c. 78 Va. 745.

The Supreme Court of the United States, by a divided court, has adopted the same view in the case of Railroad Co. v. Ross, 112 U. S. 377 (1884); s. c. 24 Am. Law Reg. (N. S.) 94. It is there said: "There is, in our judgment, a clear distinction to be made in their relation to their common principal, between servants of a corporation exercising no supervision over others engaged with them in the same employment, and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of supervision and direction. A conductor, having the entire control and management of a railway train, occupies a very different position from the brakeman, the porters and the others employed." And again: "The conductor of a railway train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it and control over the persons employed upon it, represents the company," and is not a fellowservant of such other persons. And the court affirmed the ruling of the judge below, that as the relation of superior and inferior was created between the conductor and engineer in the operation of the train, they were not fellow-servants within the reason of the law.

How far this decision will be followed in the various states it is of course, impossible to say. Its principle has been already adopted, however, in the conservative state of Connecticut in a case in which a train dispatcher and engineer were held not to be fellow-servants. The court says: "To make no discrimination, but in all cases to place those who are invested with authority to direct and control on the same footing with those whose duty it is to merely perform as directed without discretion and without responsibility, seems to us unwise and impolitic:" Darrigan v. Railroad Co., 52 Conn. 285 (1884); s. c. 24 Am. Law Reg. (N. S.) 452. And the court fully approves of the principles of the English "Employers Liability Act"

This Act (43 & 44 Vict. c. 42, 1880,) changes almost entirely the rule laid down by the English courts, and provides, in substance, as follows, concerning this division of our subject: "Workmen or their representatives shall have a right of action against

their employers for injuries or death happening 1. By reason of the negligence of any one having superintendence intrusted to him. 2. By reason of the negligence of any person to whose orders the workman was bound to conform."

It will be observed that this statute seems to be based upon the principle which some of our courts have insisted upon as the only just and wise one; and that it aims to bring about, by legis-, lative act, that which those courts, guided by what they consider proper policy, have accomplished of their own motion.

III. What servants are in a common employment.-The rule generally laid down in reference to this, is that all servants of the same master, whose labors tend to the accomplishment of the same general purpose, are in a common employment. Hence, all servants engaged in operating a mine, or railway, or factory, are within the rule. It was argued by counsel in Farwell v. Railroad Co., before referred to, that what is now known as the rule of fellow-servants, should not apply in cases where servants are employed in different departments of duty, having no connection with and at a distance from one another, and where one could in no way observe or influence the conduct of the other. But to this the court replied that the distinction would be very difficult to apply practically; that to distinguish one department of duty from another would be impossible in many cases, and that therefore such a rule could not be adopted.

This view has been strictly adhered to in Massachusetts ever since the above case was decided. In a late case, Holden v. Railroad Co., 129 Mass. 268 (1880), it was said: "It is well settled in this commonwealth and in Great Britain that the rule of fellowservants is not confined to the case of two servants working in company, or having opportunities to control or influence the conduct of each other, but extends to every case in which the two, deriving their authority and compensation from the same source, are engaged in the same business, though in different departments of duty."

In a noted English case, Bartonshill Coal Co. v. McGuire, 3 Macq. H. L. C. 300 (1858), a much more limited view was taken. It was said that "in each case it is necessary to ascertain whether the servants are fellow-laborers in the same work, and that where servants are engaged in different departments of duty, an injury committed by one servant upon another by carelessness or negli

gence in the course of his peculiar work, is not within the exemption." And in the same opinion, speaking of a case where the Scotch court held that a carpenter engaged in repairing a railway carriage was not in a common employment with an engine-driver and the person who arranged the switches, Lord Chancellor CHELMSFORD said the case might be reconciled with the English authorities, on the ground that the workmen were engaged in totally different departments of duty.

Later English cases, however, rejected this view, and the settled opinion came to be that servants are in a common employment although the object on which one is employed is "very dissimilar from that on which the other is employed," and in the case of railway employees it is said that "whenever the employment is such as necessarily to bring the person accepting it into contact with the traffic of a line of railway" the rule of common employment is to apply. The same principle governs in the case of employees of any industrial enterprise: Morgan v. Rd. Co., L. R., 1 Q. B. 149 (1865). This view has been adopted in the courts of most of the states ; and it can be stated as the general rule, that all servants of the same master, engaged in the same general business, though in different departments of it, are fellow-servants in a common employment.

The following cases are in point: an engineer of a locomotive is in a common employment with a telegraph operator employed by the railway company: Slater v. Jewett, 85 N. Y. 61 (1881); the managers of different departments of a mine, subject to the orders of a general superintendent: Railroad Co. v. Jones, 86 Penn. St. 432 (1878); a track repairer and a fireman of a passing train : Dick v. Railroad Co., 38 Ohio St. 389 (1882). See also to the same effect, Smith v. Iron Co., 42 N. J. L. R. 467 (1880); Doughty v. Penobscot Co., 76 Me. 143 (1884); Wonder v. Railroad Co., 32 Md. 411 (1870); Quincy Co. v. Kitts, 42 Mich. 34 (1879); Roberts v. Railroad Co., 33 Minn. 218 (1885).

But there are two limitations upon the rule just given. One of these is well settled; the other is perhaps no more than a mere denial of the general rule.

1. Those persons who are charged with the performance of a duty which the master owes to his servants are not in a common employment with such servants.

2. Those servants, who though employed by the same master, and working for the same general purpose are yet in such different kinds