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from statutes rather than courts' decisions.29 By statute a peculiar rule obtains in Tennessee, and a coal mine owner is exempt from liability for the acts of a "certificated foreman.” 30

12. "Different department" test of fellow-service. -It has also sometimes been held that the general rule does not apply where one servant is injured by the negligent act of another, who, although employed in the same general business, had his service in some distinct branch or department of it; for example, a railroad track laborer injured by an engine driver's carelessness, or a carpenter employed on buildings hurt by a yardmaster's negligence in making up trains. This distinction obtains in Illinois, Kansas, Texas and other states. But many others hold that the general rule applies to such cases, including Massachusetts, Pennsylvania, Wisconsin. In Pagels v. Meyer 31 it is said: "The basis of the classification of servants of the same master into those who are fellow-servants and those who are not, as established in this state, is such personal relation and association between them as affords opportunity and power to influence each other to proper caution by counsel, advice and example, or the want of such personal relation and association. Where they are brought together in direct co-operation in the performance of a particular work, they have such opportunity and power and are brought within the relation required by the rule." The "Illinois department rule" is not

29 Vogel v. American Bridge Co., 180 N. Y. 373. 30 Sale Creek etc. Co. v. Priddy, 117 Tenn. 168. 31 193 Ill. 172.

so much a question of departments as of association in the master's work and of opportunity to influence one another to caution and to guard against one another's negligence. In Pagels v. Meyer, above, it is held, in order to constitute two employees of the same master fellow-servants, to be "essential that they should be, at the time of the injury, directly cooperating with each other in the particular business in hand, or that their duties shall bring them into habitual association so that they may exercise an influence on each other, promotive of proper caution." 32

13. Comments on these tests.-In Huffcut on Agency 33 it is said the Ohio "superior officer" and the Illinois "different department" doctrines are "variations of the general rule and are rather the result of the shifting application of the rule than of any essentially different statement of it." In the leading case of Crispin v. Babbitt 34 a general superintendent in defendant's iron works negligently let on steam, starting a wheel whereon plaintiff was working, and this was held an operative act and not the performance of a non-assignable duty, and in so doing the superintendent was a fellow-servant. “The liability of the master," the court said, "does not depend upon the grade or rank of the employee whose negligence causes the injury. A superintendent of a factory, although having power to employ men, or

32 In World's Columbian Exposition Co. v. Lehigh, 196 Ill. 612, members of different gangs under the same foreman were held to be fellow-servants. In Tennessee the department doctrine is limited to railroads.

33 § 272 (2d ed.).

34 81 N. Y. 516, LEADING ILLUSTRATIVE CASES.

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 employee, 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 superior officer must be distinguished from the vice-principal, whose standing will be discussed presently. The Ohio doctrine of superior officer has no reference to the nature of the work the superior is doing, but only to his rank or standing with reference to other servants.25

14. Different employments under same master.— The servant assumes only his own employment's hazards; hence, if an injury occurs by the negligence of another servant in another, wholly distinct, business, the master will be liable as in a stranger's case. Thus, miners employed in different tunnels of the same owner, eight hundred feet apart; the crews of two vessels having a common owner, and the like, are not fellow-servants. If two departments of the same service are so far separated as to exclude probable contact and resultant danger, the injured servant is not deemed to have assumed the risk of another servant's negligence.36

15. The duties a master owes his servant.-While the rule is well settled that the master is not liable to his servant for the negligence of the fellow-serv

35 Affirmed in New England etc. R. v. Conroy, 175 U. S. 323, overruling an earlier case, 112 U. S. 377.

36 Norfolk etc. R. Co. v. Nuckol's Adm'r, 91 Va. 193.

ant, it is equally well settled that he is liable, however, for his own negligence; that is, for his own omission to perform with care and due diligence certain duties which he owes to his servant. Where, therefore, the servant is injured by reason of the master's omission to perform these duties, he may recover. It makes no difference whether the master himself has failed in the performance of such duties or whether the person whom he designated to act for him in that respect failed. In either instance the master is liable to the servant injured. In other words, the servant does not assume the risk of injuries caused by the negligence of the master in performing properly those duties which he owes his servant. It becomes important, therefore, to enumerate these duties the omission of which renders the master liable to the servant.

(1) Suitable rules and regulations. It is the master's duty to establish and promulgate general rules for the government of the service. For example, a railroad company must provide rules and regulations for the running of its trains. Whether a particular business requires rules and regulations depends upon its nature. Some businesses, being simple and having few employees and little machinery, need few regulations. Wherever adequate regulations will serve to reduce the dangers of the business, there the duty exists to provide suitable rules.

The scope of this duty is stated as follows: "The duty of the master in making rules is measured by the law of ordinary diligence. The law varies with the situation, for what would be ordinary diligence

under one set of facts would be negligence under another. If, however, under the circumstances of a particular case, the master has met the obligation of ordinary diligence in making and enforcing a rule, he is free from liability, even if some other rule would have been safer and better. The law requires him to make and promulgate reasonably safe and proper rules, and if he does so, he is not liable, even if he might have made safer and more effective rules.'' 37

Whether the regulations are adequate for the situation is, according to some decisions, a question of fact for the jury; according to others, the question is for the court.

(2) Safe place to work. A master is bound to provide a reasonably safe place in which the servant performs his work. "It is the master's duty to exercise reasonable care in furnishing those things which go to make up the plant and appliances, so as to have them at the outset reasonably safe for the work of the servants who are engaged in the general employment; and, further, to exercise reasonable care, by means of inspection and repairs, when needed, to keep the plant and appliances reasonably safe."' 38

(3) Safe tools and appliances. The duty in respect to tools and appliances is substantially the same as the duty with respect to a safe place to work. In fact, some courts use the term "appliances" to include the place where the work is being done as well as the equipment.

(4)

Suitable fellow-servants. The master owes

37 Devoe v. N. Y. etc. Ry., 174 N. Y. 1.

38 Smith v. Erie Ry. Co., 67 N. J. L. 636.

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