2. Master's liability for act of servant-General rule. As explained elsewhere,2 the law is well settled that when a person employs another to perform services for him under his direction and control, he is liable to third parties for any damages which such employee may inflict by reason of improper conduct in the course of his employment. If A chooses to have his work done for him by B and B negligently performs such work and thereby injures a third person, A is liable to such person for the damages thus inflicted. This rule is usually stated in the form of a maxim, respondeat superior, which means, in this connection, let the master respond in damages.

This rule, "let the master answer, " is founded essentially upon grounds of public policy. He who chooses to do his work by the hand of another is responsible to third parties who may be injured by such other in the course of his doing the work.

3. Same subject - Exception Fellow-servant rule. The rule stated in the foregoing section has a well-defined exception, usually known under the name of the fellow-servant rule. This doctrine, in short, means that, while the master is liable to third persons for the negligence of his servant, he is not liable to his own servant for injuries inflicted by the negligence of such servant's fellow-worker. In other words, the maxim, respondeat superior, does not apply when one servant of a common master injures by his own negligence a fellow-servant.

This rule originated in the United States in 1841, in the case of Murray v. South Carolina Railroad

2 See subject, LAW OF AGENCY.

Company. The reason for the rule that the master is liable to third parties for the negligence of his servant has been stated to be one of public policy and expediency. Likewise, the reason for the exception to the rule, that is, the fellow-servant doctrine, is one of public policy and expediency. The courts, however, have not always put it in this form. It is usually stated that when the servant enters the employment of a master, he assumes the risks incident to the employment, and that among those risks are injuries caused by the negligence of fellow-workmen.*

8 McMullan's Law, 385 (S. C.).

4 Examples of risks assumed by a servant are given in the following extract from Cooley, Torts (2d ed.), p. 1051: "Trainmen take the risk of a low bridge over the track, and of posts, poles or other structures or obstructions near thereto, if they know, or by the exercise of ordinary care might know, of their existence. 40 N. J. L. 23; 52 Ia. 276; 125 Mass. 79; 104 Ind. 88; 196 U. S. 51. But other cases hold that a servant does not assume the risk of obstructions near the track unless he knows not only of their existence in a general way, but also of their dangerous proximity to the track. 214 Ill. 124; 124 Ia. 48; 98 Me. 61; 23 Ore. 94; 71 Tex. 700. A railroad servant assumes the risk of unblocked guard rails or frogs. 49 Mich. 466; 36 Kan. 129; 147 Mass. 604. So of an unguarded ash pit, of which he has knowledge. 111 Ky. 822; 27 S. C. 71. So of a car loaded with projecting rails or logs, 101 Pa. St. 1; of handling disabled cars being taken to the repair shop, 32 Minn. 54; 110 Ind. 18; of cars with double deadwoods, and generally of defective appliances of which he is aware. 147 U. S. 238; 119 Pa. St. 301; 107 Mich. 540. So of smoke and gases in a tunnel. 75 Md. 152. One employed to shovel snow from the tracks at a distance from any dwelling takes the risk of injury from frost while so employed. -23 R. I. 583. Trainmen do not take the risk of an unsafe track. 67 N. J. L. 636; 123 N. C. 280; 135 Mich. 95. One employed about a mill or factory assumes the risk of unguarded machinery with which he is familiar, or which is patent to ordinary observation. 35 Kan. 292; 135 Mass. 398; 66 Mich. 277; 71 Mo. 66. So of the danger of falling earth in excavating, or of falling rock in a quarry. 53 Wis. 661; 53 Kan. 731. A servant whose duty it is to repair electrical lines takes the risk of defective poles and crossarms, of defective insulation of the wires, or of defective insulation of the wires of another company in dangerous proximity to the line he is repairing. 97 Md. 620; 126 Ia. 241; 107 Tenn. 392; 176 Mass. 125. So one employed to take

This reason for the fellow-servant rule is well stated in Farwell v. Boston, etc., Railroad Corporation: "The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services."

It is also sometimes said that by the contract of employment the servant does not stipulate for any case of action against his master for injuries suffered by the acts of fellow-servants. Thus, as stated in the case above referred to, the master is not liable "because the implied contract of the master does not extend to indemnify the servant against the negligence of anyone but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract expressed or implied."

A further reason for not allowing the servant to recover for injuries due to fellow-servants is that the injured servant himself is really to blame for his own down decayed and unsafe poles takes the risk of their falling. 74 Minn. 163. As a general rule, a servant cannot recover for any injury caused by the very defect which he is employed to repair. 74 Minn. 163. An employee in a store takes the risk of slipperiness of marble stairs with which she is familiar. 178 N. Y. 377. Where the master keeps a dangerous dog and the servant knows of his vicious propensity, he takes the risk if he continues in the service. 78 Hun. 560 (N. Y.). A servant employed in a white lead faetory assumes the risk of injury from the lead. 30 App. Div. 205; 51 N. Y. Supp. 602.''

54 Met. 49 (Mass.), LEADING ILLUSTRATIVE CASES.

injuries. "We are of opinion that these considerations apply strongly to the case in question. Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common employer will not take such precautions, and employ such agents, as the safety of the whole party may require. By these means, the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrongdoer."

The application of the fellow-servant rule is confined to cases of injuries inflicted by those who are really servants of a common master and who were at the time of the injuries engaged as servants in the common employment. It is important, therefore, to determine who are fellow-servants and what constitutes common employment.

4. Who are fellow-servants.-No clear and specific definition that will cover all cases can be given of a fellow-servant, or that will universally indicate

6 Farwell v. Boston, etc., Railroad Corp., 4 Met. 49 (Mass.), LEADING ILLUSTRATIVE CASES.

just who are and who are not fellow-servants. Thompson on Negligence' gives the general rule as upheld by the weight of adjudged cases, "that all who serve a common master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow-servants who, under the rule under consideration, are deemed to take the risk of each other's negligence." The servant injured and the one at fault must necessarily be fellow-servants employed by a common master and engaged in the same service; the latter term narrows the application of the rule. All persons engaged in common service or employment are fellow-servants, when each of them is occupied in service of such a kind that the others, in the exercise of ordinary sagacity, ought to foresee, when accepting their employment, that his negligence would probably expose them to injury. They must be employed by the same master, engaged in the same common work and be performing duties for the same general purpose.s The definition of fellow-servants is a question of law for the court; whether a given case falls within that definition is a question of fact, to be determined by the jury under proper instruction.

5. Fellow-servants in railroad service. In the railroad service some special rules prevail as to who are and who are not fellow-servants. Beginning with

7 § 4917. See Mast v. Kern, 34 Ore. 247, LEADING ILLustrative CASES. 8 Laning v. N. Y. Cent. R. Co., 49 N. Y. 521.

Chicago etc. R. v. Swan, 176 Ills. 424; Lake Erie etc. R. v. Middleton, 142 Ill. 550.