hold that an overseer,1 "mining boss," superintendent,3 or other superior servant, although engaged in the same common employment, is not a fellow-servant, but a viceprincipal, representing the master, for whose negligence he is responsible, and in such States the doctrine of fellowservant would not relieve the master from liability for their acts.5

hoisterman.

The

§ 455. Same Negligence of hoisterman is held to be the fellow-servant with a ground workman and the master is ordinarily not responsible for injuries resulting from his negligence. Accordingly, where a workman was injured by a falling tub, filled with water, the fact that the hoisterman had failed to use the brake, did not render the master liable, but it was held to be the negligence of a fellow-servant."

1 "A foreman, in charge of hands, is not a fellow, but a superior servant." Berea Stone Co. v. Craft, 10 M. M. R. 16.

2 Knight v. Sadler Lead and Zinc Co., 75 Mo. App. 211; Lindon C. & M. Co. v. Persons, 11 Ind. App. 264.

3 Collier v. Steinhart, 10 M. M. R. 1.

4 Berea Stone Co. v. Craft, supra.

5 Ante, idem. "Shift boss" not co-employee and master liable. McMahon v. Ida Min. Co., 1 Am. Neg. Rep. 741. In Ohio, one of laborers appointed by mine boss, even held to be vice-principal. Wellston Coal Co. v. Smith (1901), 10 Amer. Neg. Rep. 445. Foreman held to be viceprincipal, where he had entire charge of operations of mine and hired and discharged men. Alaska United Coal Min. Co. v. Muset, 114 Fed. Rep. 66. But see Whalen v. Gold Min. Co., 168 U. S. 85-88.

Bartonshill Coal Co. v. Reid, 3 Macq. 266; Senior v. Ward, 1 E. &

E. 385.

7 Griffiths v. Gidlow, 10 M. M. R. 639. Miner is not fellow-servant with operator of cage. Jenkins v. Mammoth Mining Co. (Utah, 1902), 68 Pac. Rep. 845. Nor with carrier of tools. Idem. The question of whether a hoister was started with a sudden jerk, so as to constitute negligence, is one of fact for the jury. Duffy v. Kivlin (1902), 98 Ill. App. 483. Where an employee is injured from a premature hoisting and

§ 456. Same-Department doctrine. Some of the States have laid down the rule that before the master is exempt from liability for the negligence of a fellow-servant it must not only be the negligence of a servant in the same grade of employment with the injured one, but that it must also be the negligence of one in the same department of the master's service.1 According to this rule the master would be liable for an injury from the negligence of a fellow-servant although not superior in authority to the injured person, providing the injury resulted from the negligence of a servant in a different, distinct department of the master's business from that of the injured servant.2 The reason for holding the master liable for the negligence of fellow-servants in distinct departments of the service from the injured one, is said to be based upon the unreasonableness of compelling a servant to assume the risks of injuries from the negligence of servants in distinct departments of the service; 3 but it is doubtful if the distinction was recognized at common law, where the parent doctrine of non-liability for the negligence of fellow-servants had its origin; the distinction has

4

the ground of negligence alleged is a failure to maintain a safe place to land, no recovery can be had, as the negligence alleged and that proven are different and the cause of the injury is the negligence of a fellowservant. Roe et al. v. Thomason (Tex.), 61 S. W. 528. For case where negligent direction of hoisterinan caused rock being hoisted to be precipitated against plaintiff and foreman had given the direction to hoist it was held proper to be submitted to the jury. Sikes v. Granite Co., 92 Mo. App. 12.

1 Kielly v. Belcher Co., 10 M. M. R. 3; 2 Ante, idem. Tabler v. R. R., 93 Mo.

350; Sullivan v. R. R., 97 Mo. 113.

Relyea v. R. R., 112 Mo. 86.

79; Miller v. R. R., 109 Mo.

3 Kielly v. Belcher Co., supra; McMahan v. Ida Mining Co., 1 Am. Neg. Rep. 741; Schlereth v. R. R., 115 Mo. 87, where the department doctrine was recognized in Missouri.

4 "Workmen do not cease to be fellow-workmen because they are not all equal in station or authority." Wilson v. Merry, L. R. 1 Sc. & D. 326. "The doctrine of common employment exempted the master from

been practically abolished by the Supreme Court of the United States,1 and many of the recent decisions of the State courts have favored a complete retraction of the department doctrine.2

§ 457. Injuries from unsafe machinery and appliances. Employers owe to their employees the exercise of reasonable care and diligence in providing them with safe machinery and suitable tools and appliances to carry on their work, and for an injury from a failure to discharge this duty the employer is liable, and the master cannot avoid liability by having delegated the duty to an agent or servant. But the use of machinery or appliances that are known by the employee to be defective will bar a recovery, if there has been no promise to repair by the employer; 5 he is not bound to furnish absolutely safe appliances; it

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all liability for the negligence of fellow-workmen, unless he was, himself, guilty of personal negligence." Bryden v. Stewart, 2 Macq. 30; Griffiths v. Gidlow, 3 H. & N. 648; Senior v. Ward, 1 E. & E. 385; Ashworth v. Stanwix, 3 E. & E. 701; Mellors v. Shaw, 3 B. & S. 437; Bartonshill Coal Co. v. Reid, 3 Macq. 266; Rourk v. White &c. Co., 1 C. P. D. 556; 2 Idem, 205; Hall v. Johnson, 3 H. & C. 589; Grattis v. K. C. P. & G. Co., 153 Mo. 380.

1 Grattis v. K. C. P. & G., 153 Mo., p. 401; R. R. v. Baugh, 149 U. S. 369; R. R. v. Hornby, 154 U. S. 349; R. R. v. Keegan; 160 U. S. 259; R. R. v. Peterson, 162 U. S. 346; Oaks v. Mose, 165 U. S. 363; Alaska &c. Gold Min. Co. v. Whelen, 168 U. S. 85-88.

2 See complete list of cases and able refutation of the doctrine, by Marshall, J., in Grattis v. K. C. P. & G. Co., 153 Mo. 380.

8 Lake Sup. Co. v. Erickson, 10 M. M. R. 39; Ardesco Oil Co. v. Gil. son, 10 M. M. R. 669.

4 Trihay v. Brooklyn Co., 15 M. M. R. 535; Magnus v. Bullion Beck Co. (Utah), 4 Amer. Neg. Rep. 91.

5 Watson v. Coal Co., 52 Mo. App. 366; Berning v. Medart, 56 Mo. App. 443; Aldrich v. Furnace Co., 78 Mo. 559.

6 Lake Sup. Co. v. Erickson, supra. Nor is he liable where machinery is open and visible, such as revolving shaft, as he is not bound to change his plant. Lemoine v. Aldrich (Mass.), 10 Amer. Neg. Rep. 637.

is sufficient if the machinery or appliances, although not the most approved,1 are the same as those customarily used by prudent persons in the same business; 2 and even though bad material or unskillful work has been used and an injury result therefrom, there is no liability if the master had employed a competent and skilled machinist to do the work, or construct the machinery,3 for any other rule would make the master an insurer of the safety of his servants.

§ 458. Failure to inspect. It is the duty of the master to inspect dangerous places and appliances, to keep the same in a reasonably safe condition, and a failure to inspect will render him liable, although ignorant of the defect or danger, if a careful inspection would have informed him thereof. Nor will the mere proof of an inspection relieve the master, unless it is shown to have been a careful one," for he is liable for a careless inspection, the same as though none had been made. However, inspection is only necessary where the employer has superior means of knowledge to the employee, for if the danger is as open to one as to the other to observe, there would be no duty to inspect by the master."

1 Bohn v. C. R. I. & P. Co., 106 Mo. 429; Keenan v. Waters (Pa.), 2 Amer. Neg. Rep. 454.

2 Ante, idem. Evidence that better machinery could be obtained is not competent, as employer is not bound to furnish the best made, but only such as is reasonably safe. Acme Coal Min. Co. v. McIver, 5 Colo. App. 267.

3 Ardesco Oil Co. v. Gilson, 10 M. M. R. 669.

4 McCone v. Gallagher (N. Y.), 2 Am. Neg. Rep. 613; Benzing v. Steinway & Sons, 101 N. Y. 550.

5 Ry. Co. v. Ward, 1 Am. Neg. Rep. 590.

6 Durkin v. Sharp, 88 N. Y. 225; Egan v. Ry. Co., 42 N. Y. Supp. 188; Car. Co. v. Parker, 100 Ind. 181.

'Buswell Per. Inj., § 211. The law does not require the master to roke inspection of shots that have failed to go. Brown v. King, 100 Fed.

§ 459. Clothing catching on machinery. — It is generally regarded as such an act of contributory negligence, for an employee to wear clothing of such a character as would be liable to catch on open and exposed machinery as would prevent a recovery by him, in case of injury,1 and this would be particularly true where the employee negligently handled clothing in close proximity to revolving machinery. But where the machinery was not open to view, or was negligently constructed and such an injury would be more liable to occur on account thereof, the master would be liable,3 and, in any event, in such case, the question of assumed risk is for the jury.4

§ 460. Giant powder-Injuries from explosions.— Where unexploded shots of giant powder are left in a mine and the ground boss of the retiring crew permits a new crew to enter the mine, without warning them of such danger and an injury occurs from drilling into and exploding the powder, the master is liable. And on account of the dan

Rep. 561. For cases predicated upon negligence in failing to inspect appliances, see Bailey's Mas. Lia. for Inj. to Sr., 93 to 103; Bowman v. Waite, 110 Cal. 23; Mo. Coal. Co. v. Schwab, 74 Ill. App. 567; Ashland Coal Co. v. Wallace, 101 Ky. 626; Smizel v. Iron Co., 116 Mich. 149; Sykes v. St. L. & S. F. Co., 88 Mo. App. 193; Mansfield Coal Co. v. McEury, 91 Pa. St. 185; Chicago Coal Co. v. People, 181 Ill. 270; 20 Am. & Eng. Enc. Law (Ed.), 89. But if inspection retards work (Island Coal Co. v. Greenwood, 151 Ind. 476), or if inspection would only develop a matter of common knowledge, it is not necessary. Garragan v. Falls River Iron Co., 158 Mass. 596; Shea v. K. C. F. S. & M. Co., 76 Mo. App. 29; 20 Am. & Eng. Enc. Law (2 Ed.), p. 89.

1 Lemoine v. Aldrich (Mass.), 8 Amer. Neg. Rep. 637.

2 Heemke v. Thilman (Wis.), 8 Am. Neg. Rep. 172.

3 Jara-zeski v. Mfg. Co. (Minn.), 8 Am. Neg. Rep. 441.

4 Dempsey v. Sawyer (N. Y.), 10 Am. Neg. Rep. 285. 5 Anderson v. Daly Min. Co. failure to give notice of blast. 4 Am. Neg. Rep. 195.

(Utah), 2 Am. Neg. Rep. 659. Liable for Mooney v. Belleville Stone Co. (N. J.),