duties. For his negligence in the performance of these duties, whereby another servant is injured, the master is liable.53

18. Same subject-Operative and administrative acts.-Whoever is thus set to perform the master's non-assignable duties above referred to, no matter what may be his rank or grade, represents the master and in that particular is not a fellow-servant of those to whom the duty is owed. The master's responsibility is determined by the nature of the act in question; if the offending employee was in the performance of a duty devolving upon the master or was charged therewith, in reference to the particular act causing the injury, the master is liable; otherwise such employee is a fellow-servant.55 The distinction between a fellow-servant and a vice-principal lies in the nature of the act to be performed; if it be an operative act, the employee is a fellow-servant of all other employees; if an administrative act, he is a vice-principal in that his act is his master's act; the same employee may be both a fellow-servant and a vice-principal, depending on whether he is performing the one or the other act.

19. Same subject-Grade or rank of servants.— "It cannot be disputed that the negligence of a servant of one grade is as much one of the risks of the business as the negligence of a servant of any other; and it seems impossible, therefore, to hold that the servant contracts to run the risks of negligent acts

53 Hough v. Ry. Co., 100 U. S. 213.

54 Mullin v. California etc. Co., 105 Cal. 77.

55 Northern Pacific R. v. Peterson, 162 U. S. 346; Mast v. Kern, 34 Ore. 247, LEADING ILLUSTRATIVE CASES.

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or omissions on the part of one class of servants and not those of another class. Nor on grounds of public policy could the distinction be admitted, whether we consider the consequences to the parties to the relation exclusively, or those which affect the public. * Sound policy seems to require that the law should make it for the interest of the servant that he should take care not only that he be not himself negligent, but also that any negligence of others in the same employment be properly guarded against by him, so far as he may find it reasonably practicable, and be reported to his employer, if needful. In this regard it can make little difference what is the grade of the servant who is found to be negligent, except as superior authority may render the negligence more dangerous, and consequently increase at least the moral responsibility of any other servant who, being aware of the negligence, should fail to report it. These views are supported by very numerous decisions, and the great weight of authority now is that the mere fact that one servant has authority over another does not create an exception to the general rule that exempts the master from liability for an injury to one servant by the negligence of a fellow-servant." 56

20. Same subject-Act and not the grade.-As stated by Judge Thompson in his work on Negligence, it is not the grade or rank of the servant inflicting the injury, as compared with the one injured, that is the true test to determine whether the

56 Cooley, Torts (student's ed.), pp. 544-545; Crispin v. Babbitt, 81 N. Y. 516, LEADING ILLUSTRATIVE Cases.

master is responsible, but it is the character of the negligent act or omission which the wrongdoing servant was doing at the time that controls. "If it was an act of service, then, in jurisdictions where the fellow-servant doctrine prevails, the master is not liable, although the servant inflicting the injury may be, for general purposes, a representative of the master and his alter ego or vice-principal; but if it was an act of vice-principalship, an act done in the discharge of some duty which the law devolves primarily upon the master, and which is unalienable, then the master will be liable, although the servant inflicting the injury may be of the lowest grade in his service. Out of these considerations springs what is called the 'doctrine of dual relationship' of a servant. The meaning is that the same servant may be, with respect to acts of a certain kind, a fellowservant of the others, and with respect to acts of another kind, a vice-principal of the master. Thus the negligence of one occupying generally the position of vice-principal to servants employed under him, in failing to provide safe and proper appliances, is chargeable to the master, although, in handling such appliances, he may be a fellow-servant."'57

21. Same subject-Superior officer.-Where two persons, subject to the same general master's control and direction, are working to accomplish the same common object, though one is higher in rank, and he has the right to direct and control the other's work, "in such cases, the subordinates assume the risks of the negligence of their superiors in their

57 Thompson, Negligence, §§ 4918, 4923.

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work of supervision, to the same extent as that of those who work by their sides. The distinction upon which these cases rest is that between an act of vice-principalship and a mere act of service. The meaning is, that where a superior servant is performing a positive and unassignable duty of the master, his negligence is the master's negligence, no matter what his grade or rank in the service may be; but where he is performing a mere detail of work, his negligence is that of the fellow-servant, although he may be in command over the injured servant, and although his negligence may consist in giving an erroneous command or direction."58 The "non-assignable duty" test is founded on the notion that a master owes his servants certain duties for the proper performance of which he continues liable, whether he performs them personally or through representatives; and the servant does not assume the risk of their due performance, even though aware that they are to be performed by a co-servant.

59

22. Same subject-A summary.-Huffcut on Agency, in substance, thus summarizes the viceprincipal doctrines: "A master remains liable to his servant for a vice-principal's negligence. There are two tests of vice-principalship, but they are not entirely antagonistic, and one may be combined with a part of the other. This leads to these possible results: (1) The negligent servant's rank is the sole test; if the negligent employee is the injured employee's superior officer the master is liable, irre58 Thompson, Negligence, § 4938.

59 § 277 (2d ed.).

spective of the character of the act; if not such superior officer, the master is not liable, whatever its character. (2) The character of the act is the sole test; if the superior officer performs an operative act he is a fellow-servant; if an inferior servant performs a non-assignable duty, he is a vice-principal. (3) The negligent servant's rank is a sufficient test in case the negligent servant is the injured servant's superior; in other cases the character of the act is the proper test. The second is the commonly accepted view. In a few states, the combination indicated in the third is accepted." This doctrine is now comprehensively termed the "dual capacity" test, and is a mixed question of law and fact.60

23. Injured servant's contributory negligence.— The master's liability for negligently failing to perform a personal or non-assignable duty is also subject to the rule that the servant cannot recover for injuries proximately due to his own contributory negligence. This is merely an application of the general rule that contributory negligence bars a recovery at common law. But care should be taken to distinguish between contributory negligence and assumed risk, for both may arise in the same case; thus, plaintiff claims that the platform on which he worked was unsafe and unlighted; if unsafe he may have assumed the risk; if unlighted, suitable torches may have been furnished which plaintiff negligently failed to use.81 It is not necessarily contributory negligence for a servant to expose himself to danger 60 Fogarty v. St. Louis etc. Co., 180 Mo. 490.

61 Kaare v. Troy Steel & Iron Co., 139 N. Y. 369.