Chicago, etc., Railway Company v. Ross,10 the Federal Supreme Court decided that a railway train conductor was a vice-principal, representing the company, and not a fellow-servant with the same train's engineer. This decision has since been modified by the same court holding them fellow-servants. Many state courts, following the earlier decision, hold that the conductor is not a fellow-servant of the other employees on the train, and allow the latter to recover for the former's negligence, against the common master. But the better rule is said to be that the conductor is a fellow-servant with the other employees on the same train, and that all such employees are fellow-servants with respect to each other, while engaged in the operation and handling of the train; thus, engineer and brakeman; engineer and fireman; brakeman and fireman; engineer, fireman, brakeman and shovelers; and two engineers of two engines attached to the same train; and the employees on different trains operated by the same company, are held to be fellow-servants." So, also, those who load cars and whose duty it is to see that they are properly loaded, and those who move them. It is now generally held that a railway employee assumes the risk of negligence in any department and that the whole business of the railroad must be regarded as a single enterprise.12

6. Same subject.-A baggageman and engineer; Pullman porter, conductor and engineer; and the

10 112 U. S. 377, modified in New England R. Co. v. Conroy, 175 U. S. 323. 11 Meyer v. Illinois etc. R., 177 Ill. 591; Oakes v. Mase, 165 U. S. 363. 12 Northern Pacific R. v. Hambly, 154 U. S. 349.

train crew and those who repair and inspect the cars and engines; a train dispatcher and those on the train whose movements he governs, are not fellowservants.13 Where one railway company runs its cars over the tracks of another, the latter's employees are not fellow-servants of the former's employees.

A conflict of authority exists as to whether or not a station agent or local telegraph operator and those in the train service; a section foreman and the men under him; trainmen and track repairers, are, respectively, fellow-servants.1 A "student" or "cub" brakeman and a freight train crew are considered fellow-servants.15 A third person concurring with a fellow-servant in injuring plaintiff cannot invoke the fellow-servant doctrine as a defense.16

7. Fellow-servants in other employments.-Outside the railway service, the following cases occur: the assistant foreman of a cotton mill machine shop and the foreman of its slashing room; a foreman in charge of a gang of men, under the supervision of a general superintendent, and the men under him, were held, respectively, fellow-servants; but not so as to a foreman having entire charge of the work or plant, or a foreman discharging a positive duty owing by the master. In the following cases the employees are not fellow-servants: A sawyer having charge of saw and machinery for handling logs, and the men

13 Marsh v. Lehigh etc. R., 206 Pa. St. 558; Hankins v. Railroad Co., 142 N. Y. 416.

14 Northern Pacific R. v. Dixon, 194 U. S. 338; Justice v. Pennsylvania Co., 130 Ind. 321.

15 Louisville etc. R. v. Vincent, 116 Tenn. 317.

16 Kentucky etc. R. v. Sydnor, 119 Ky. 18.

17 Cooley, Torts (2d ed.), pp. 1083-84.

working with him; one engaged to repair a mill and those working in the mill; the gas inspector or tester of a mine and the miners; one who inspects rafted logs for pikes and those who put the logs on the carriage to be sawed.18

All employees of the same master engaged in erecting a building, though doing different lines of work, as carpentry, masonry, etc., have been held to be fellow-servants; all the persons composing a ship's company, divided into three classes: (1) the deck department, including officers, sailors, etc.; (2) the engineer's department, and (3) the steward's department, such division being merely a matter of convenience, are fellow-servants. But an employee on a lighter is not a fellow-servant of a seaman on a vessel employing the lighter. In general, all who are employed by the same master on any particular work, although there may be different ranks or different lines of work, or divisions into different gangs, are considered fellow-servants. But workmen of different contractors or masters who are working on the same building or job, or otherwise for the same proprietor on the same premises, are not fellowservants.19 Whether elevator operators are fellowservants with others in the same building is disputed.20

8. Rule in cases of transfer of service.-The master who has immediate control of the servant will be the one responsible, so where the servants of one master are sent to work on the premises of another, 18 Evans v. Louisiana Lumber Co., 111 La. 534.

19 Morgan v. Smith, 159 Mass. 570; Moll, Independent Contractors, § 196. 20 See note to Judd v. Letts, 158 Cal. 359, in 41 L. R. A. (N. S.) 156.

they are the servants of the latter while working under his control or direction.21 Defendant contracted to construct a printing press brick foundation, and sent a foreman and men to do the work; plaintiff delivered goods at the building basement, interfering with defendant's work, and to hasten matters the foreman ordered the men to assist plaintiff, who was injured by their negligence; they were held not fellow-servants.22

9. Anomalous co-servants.-One who voluntarily assists a servant at the latter's request does not generally become a servant of the master so as to impose on the latter a master's duties and liabilities; the volunteer is hardly more than a trespasser; it may be otherwise where the servant is authorized to employ assistance, either expressly or by implication, as by necessity arising from an unforeseen emergency.23 As "compulsory servants," such as pilots and convicts, are not free to contract, they cannot be said to have assumed the risks of a fellow-servant's negligence.2 The master's liability extends to persons substituted by authority or necessity for regular servants.25

10. "Superior rank" test of fellow-service.Many states hold the general rule not applicable to the case of a servant who, at the time of the injury, was under the general direction and control of another, who was entrusted with duties of a higher

21 Hasty v. Sears, 157 Mass. 123.

22 Brown v. Jarvis etc. Co., 166 Mass. 75.

23 Johnson v. Ashland Water Co., 71 Wis. 553.

24 Buckalew v. Tennessee etc. Co., 112 Ala. 146.

25 Pugmire v. Oregon etc. R., 33 Utah 27.

grade, and from whose negligence the injury resulted. This is known as the "Ohio rule." 26 In some cases a foreman or superior giving an order to work in a particular place or with a particular machine, etc., is held to be a fellow-servant of the injured workman, for whose negligence the master is not liable.27 Some cases hold that the power to hire and discharge other servants, when vested in the superior servant, is sufficient to remove him from the relation of co-servant with those under him, and hold the master liable for his negligent acts injuring other servants; but in most cases the power to hire and discharge is not regarded of more importance than the grade or rank of the fellow-servants, and is not considered a controlling test in fixing the liability of the master.28

11. Same subject.-But most authorities pay little attention to the rank or grade of the servants, and maintain that, as to the details in executing the work, the foreman and workman are fellow-servants, providing the master has employed someone to represent him in the management of the work, and has neglected no precaution in employing a competent foreman and in making reasonably safe provisions for the proper execution of the work. The weight of authority inclines away from the modification of the fellow-servant doctrine which excludes from its scope those who have authority over their fellowworkmen, and any relief from this must be derived 26 Little Miami etc. R. v. Stevens, 20 Ohio 415.

27 Moody v. Hamilton Mfg. Co., 159 Mass. 70.

28 Compare Nix v. Texas etc. R., 82 Tex. 473, and Noyes v. Wood, 102 Cal. 389.