that the employee takes upon himself all the ordinary risks of the service, including the negligence of his fellow-servants, and that in consideration of assuming such risks the servant receives increased compensation.

The justice and policy of this are maintained by these arguments: That these are perils which the servant is as likely to know, and against which he can as effectually guard, as the master; that they are perils which can be as distinctly foreseen and provided for in the rate of compensation as any others; that where several persons are employed in one common enterprise, 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 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; that if we are to teach each agent that for the negligence of others resulting in an injury to himself he can grasp the treasures of his principal, he ceases his vigilance over those with whom he works — a bribe is held out to him to incur personal risks which he may have facilities to render partially harmless to him, but which may carry destruction to others; and, finally, that the safety of all will be better secured by enforcing the rule than by giving the servant his action against his master. Farwell v. Railroad Corporation, 4 Met., 49; dissenting opinion of Spaulding, J., in Stevens v. Railroad Company, 20 Ohio, 150. This reasoning will not support the rule unless the general terms "fellow-servants" and "common employment" are taken in a restricted sense. The rule requires us to imply certain terms not expressed by the parties to be part of the contract of service; and the question is how far considerations of public policy and convenience authorize courts to go in that direction.

$372. What are the ordinary risks of an employment.

That every servant takes upon himself the ordinary risks and perils of the service he undertakes must be admitted as a rule founded in justice and sound policy. That these ordinary risks include all such as are liable to happen in the performance of the work he engages to do, although he and his fellowservants discharge their duty and exercise due care, is also clear.

Nor will it be denied that, if the servant has contracted to serve in any specified branch or department of his master's general business, he assumes the risks arising from the negligence of those of his fellow-servants, not his superiors in authority, who are engaged in the same department, whose conduct he has an opportunity of observing, and against the consequences of whose negligence he can thus, to some extent, protect himself by the exercise of his own care and prudence. But it seems apparent that any rule which goes further and throws upon the servant any risks other than those which are the natural and ordinary incidents of the work he agrees to do, and which he might fairly anticipate as liable to accompany his undertaking, is unjust and indefensible. Such a rule, we think, is the one in question, when so construed as to include in the term "fellow-servants engaged in a common employment" all who are employed by the same master, though laboring in distinct and separate departments of his business. Carried to this extent the rule relieves the master of a responsibility which justice and policy alike require he should bear. Among the duties and obligations arising out of the relation of master and servant, the law regards that of the master to provide for the safety of the men in his employment as the first and highest. It is peculiarly so where, like that of mining, the business is hazardous. This obligation includes the exercise of due care in

the selection of all who are to act for him, and requires him at least to see to it that those who labor in one department of his business are not injured by his chosen servants in another. Unless this is so there is no adequate protection to the laborer against his employer's negligence; for the workmen in one department, having no authority over those in another, nor any opportunity of observing or influencing their conduct, or of guarding themselves by their own care and prudence, are defenseless save through the watchful care of the master, which can be secured only by throwing upon him the responsibility of seeing that each department of his business is conducted with due care. It is assuming the whole question as to the reason, justice and policy of exempting the master from liability in such cases to say that such exemption is implied from the contract of service; for unless the exemption is demanded by reason and sound policy it ought not to be implied.

§ 373. Limitation of the exemption of a master for the injuries inflicted by the negligence of one servant upon his fellow-servant.

From the trustees down in one common object, In a general sense they

The defendant is a corporation engaged in mining. to the lowest grade of its employees all are engaged namely, obtaining gold and silver from the mine. are all fellow-servants engaged in a common service. Yet no court, it is believed, has gone so far as to say that all these are fellow-servants within the rule contended for here by the defendant. If the defendant negligently provides insufficient machinery, the negligence is necessarily that of some one of its servants; yet all the courts agree that it may be liable to one of its servants for such negligence. So, if there is neglect in selecting a servant, it must be the neglect of some servant of the corporation; yet there is no doubt that the corporation is liable if, from such neglect, injury results to a fellow-servant. In these cases the servant injured and the one guilty of negligence are not regarded as fellow-servants within the rule. Hence it cannot be truly said that the servant, by his contract of service, impliedly takes upon himself the risk of injury from the negligence of all who, in a general sense, are his fellowservants. As between some who, in common speech, are properly enough called fellow-servants, the master's liability attaches; as between others, it does not. Who are to be considered fellow-servants, engaged in a common business, within the rule is, in some degree, an open question in each case, to be determined by the facts of the particular case. But there should be some established principle to guide us in determining that question, and it ought to rest on sound reasoning.

The principle which lies at the foundation of the master's exemption in any case is this: That the servant, having voluntarily entered into a contract of service to do a specified work for a specified compensation, has thereby accepted the ordinary perils incident to doing that work; and whenever the negligence of another employee of the same master can be considered an ordinary risk, one which he might reasonably anticipate at the time of making his contract, he accepts also the perils liable to happen through such negligence. And it seems clear that upon this principle those only are fellow-servants for whose negligence, one to another, the master is exempt, who serve in such capacity and in such relation to the master and each other that the means of the servants to protect themselves are equal to, or greater than, those of the master to afford them protection, and that further than this justice and policy forbid us to carry the implied portion of the contract of service. Beyond this an injured servant has a clear title to relief against the master as a

stranger, upon the maxim respondeat superior. Such cases as that of Fort, in 17 Wallace, and Ford v. Railroad Company, 110 Mass., 240, with many others, show that the contract of service is not presumed to regulate all the rights and duties of the parties. Under various circumstances the master has been held liable to one servant for the negligence of another, notwithstanding the privity of contract. In such cases the master's liability attaches, not by virtue of his contract, but upon the maxim respondeat superior, which maxim our supreme court has said is of "universal application," and "wholly irrespective of any contract, express or implied, or any other relation between the injured party and the master." Railroad Company v. Derby, 14 How., 468

($ 219-20, supra).

Regarding the case at bar in the light of the conclusions thus reached, the complaint states a good cause of action, and it is not enough to defeat it that the negligence charged must have been that of some servant of the defendant employed in the same general business with the plaintiff. To defeat the action it must appear that the plaintiff and the person whose negligence caused the injury were fellow-servants within the principles announced in this opinion. The demurrer is overruled.

ERROR to U. S. Circuit Court, District of Nebraska.

STATEMENT OF FACTS.- Fort sued the railroad company for damages for the loss of his son's arm while in their service and acting under the orders of one Collett. There was a special verdict that Collett had sent the boy on a dangerous mission, which a prudent man would not have done; that the order was not a reasonable one, and its execution attended with great hazard to life and limb.

Opinion by MR. JUSTICE DAVIS.

It was assumed on behalf of the plaintiff in error, on the argument of this cause, that the master is not liable to one of his servants for injuries resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the injury. Whether this proposition, as stated, be true or not we do not propose to consider, because, if true, it has no application to this case. § 374. Where an employee is required by a superintendent having control of him to perform dangerous service for which he was not engaged, the principal is responsible for disaster in such service.

It is apparent, from the findings in the present suit, if the rule of the master's exemption from liability for the negligent conduct of a co-employee in the same service be as broad as is contended for by the plaintiff in error, that it does not apply to such a case as this. This rule proceeds on the theory that the employee, in entering the service of the principal, is presumed to take upon himself the risks incident to the undertaking, among which are to be counted the negligence of fellow-servants in the same employment, and that considerations of public policy require the enforcement of the rule. But this presumption cannot arise where the risk is not within the contract of service, and the servant had no reason to believe he would have to encounter it. If it were otherwise principals would be released from all obligations to make reparation to an employee in a subordinate position for any injury caused by the wrongful conduct of the person placed over him, whether they were fel

low-servants in the same common service or not. Such a doctrine would be subversive of all just ideas of the obligations arising out of the contract of service, and withdraw all protection from the subordinate employees of railroad corporations. These corporations, instead of being required to conduct their business so as not to endanger life, would, so far as this class of persons were concerned, be relieved of all pecuniary responsibility in case they failed to do it. A doctrine that leads to such results is unsupported by reason and cannot receive our sanction.

The injury in this case did not occur while the boy was doing what his father engaged he should do. On the contrary, he was at the time employed in a service outside the contract and wholly disconnected with it. To work as a helper at a moulding machine, or a common work-hand on the floor of the shop, is a very different thing from ascending a ladder resting on a shaft to adjust displaced machinery, when the shaft was revolving at the rate of one hundred and seventy-five to two hundred revolutions per minute. The father had the right to presume when he made the contract of service that the company would not expose his son to such a peril. Indeed, it is not possible to conceive that the contract would have been made at all if the father had supposed that his son would have been ordered to do so hazardous a thing. If the order had been given to a person of mature years, who had not engaged to do such work, although enjoined to obey the directions of his superior, it might with some plausibility be argued that he should have disobeyed it, as he must have known that its execution was attended with danger. Or, at any rate, if he chose to obey, that he took upon himself the risks incident to the service. But this boy occupied a very different position. How could he be expected to know the peril of the undertaking? He was a mere youth, without experience, and not familiar with machinery. Not being able to judge for himself he had a right to rely on the judgment of Collett, and, doubtless, entered upon the execution of the order without apprehension of danger. Be this as it may, it was a wrongful act on the part of Collett to order a boy of his age and inexperience to do a thing which, in its very nature, was perilous, and which any man of ordinary sagacity would know to be so. Indeed, it is very difficult to reconcile the conduct of Collett with that of a prudent man, having proper regard to the responsibilities of his own position and the rights of others. It is charitable to suppose that he did not appreciate the danger and acted without due deliberation and caution. For the consequences of this hasty action the company are liable, either upon the maxim of respondeat superior, or upon the obligations arising out of the contract of service. The order of Collett was their order. They cannot escape responsibility on the plea that he should not have given it. Having intrusted to him the care and management of the machinery, and in so doing made it his rightful duty to adjust it when displaced, and having placed the boy under him with directions to obey him, they must pay the penalty for the tortious act he committed in the course of the employment. If they are not insurers of the lives and limbs of their employees they do impliedly engage that they will not expose them to the hazard of losing their lives or suffering great bodily harm, when it is neither reasonable nor necessary to do so. The very able judge who tried the case instructed the jury on the point at issue in conformity with these views, and we see no error in the record.

MR. JUSTICE BRADLEY dissented.

Judgment affirmed.

MCMAHON v. HENNING.

(Circuit Court for Kansas: 1 McCrary, 516-520. 1880.)

Opinion by McCRARY, J. STATEMENT OF FACTS. The plaintiff sued defendant, as receiver of the Lawrence, Leavenworth & Galveston Railroad Company, to recover damages for personal injuries received while in defendant's employ. The defendant was at the time of the accident engaged in operating said railroad under an appointment from this court as receiver thereof. The plaintiff sought to recover upon two grounds: First, that his co-employee, one Bowles, who, at the time of the accident, was acting as yard master, was guilty of negligence in running certain cars together to be coupled at a great and dangerous speed, causing the injury to plaintiff, who was engaged in coupling; and second, that defendant was guilty of negligence in using cars dangerous and defective in their construction, whereby plaintiff was injured. It was alleged that the coupling-pin was old and bent and that the bumpers were improperly constructed and located, and were thereby rendered exceedingly and unnecessarily dangerous. Issue was joined upon these allegations, the cause was tried before a jury, and there was a special finding by the jury as follows:

The jury was directed to answer the following questions: "If the jury find the defendant guilty of negligence, which caused the injury to plaintiff, they will state in what it consists;" and the jury answered as follows: "Answer. That the coupling-pin was worn and bent, and that there was negligence on the part of Bowles, the yard master, in not doing his duty carefully, and in not informing plaintiff of his change of purpose in placing the cars, and in the use of the cars with this particular pattern of bumpers or dead-wood." The jury also find specially that the cars were not in good repair; that the coupling-pin was worn and bent; that the cars were not such as were generally in use on western roads; that the plaintiff's injury was in part caused by the use of defective bumpers; and that the bumpers used were more dangerous than others by reason of being placed on the side of the draw-bar instead of above it. An act of the legislature of Kansas, entitled "An act to define the liability of railroad companies in certain cases," approved February 26, 1874, provides as follows: "Every railroad company organized or doing business in this state shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of the engineer or other employee, to any person sustaining such damage." Comp. Laws of Kansas, 1879, ch. 84, § 29, p. 784.

The defendant moves to set aside the verdict and for a new trial upon the ground that the court erred in charging the jury that the statute was applicable to this case; and his counsel argues with much force that a receiver engaged in the operation of a railroad is not a “railroad company," within the meaning of the act. In the view I take of the case it is not necessary to decide this important question.

By the special finding the fact is established satisfactorily, I think, that the injury resulted from the negligence of the defendant in furnishing defective machinery for the use of his employees in performing the very dangerous duty of coupling cars. The coupling-pins were old and bent, and the bumpers or dead-wood were not properly arranged, so that the whole was cumbersome,' inconvenient and dangerous. This was a plain violation of duty on the part of the defendant. Ordinary care clearly requires of persons engaged in oper