company required it, but the superintendent telegraphed to the telegraph operator at Cayuga to hold No. 50 for orders. The operator told the conductor to hold No. 50 for train No. 61. He neither exhibited nor delivered any message; no rule of the company required him to do either. No. 61 came in soon after and No. 50 started towards Auburn. In a few moments it collided with "337," and the plaintiff was injured. The court say: "It was not disputed at the trial, nor is it upon this appeal, that the dispatching of train 337-" Wild Cat"—and the holding of train “50," were within the province of the superintendent, nor that, in respect thereto, be represented the defendant in its corporate capacity. Clearly he held that relation.

The defendants' counsel in commenting upon that case, suggest that the case turned upon the defective nature of the general rules governing the movement of trains, which permitted the telegraph. operator to deliver a train order verbally to the conductor. In respect to this, the court say: "The peremptory order of the superintendent to go forward regardless of No. 50 was an assurance that the track would be free and safe for the journey, and required the defendants to take reasonable precautions to make it so. The rules of the company did not require Kieffer, the telegraph operator, to submit the message received by him to the conductor or engineer of train No. 50, nor a communication back from these persons that they had received and understood the order; an omission of either circumstance was the act of the defendants and in the absence of other precautions might properly be held to constitute negligence." It is obvious that the court regarded the superintendent, who acted as train dispatcher, as the representative of the corporation, and his negligence was the negligence of the defendants. He failed to give an effective order to hold No. 50, which he might and should have done, regardless of rules. In that he, and through him the company was negligent. And none the less so that the company had failed to establish suitable rules. The intimation of the court is clear that the company was responsible on both grounds.

In Chicago, Burlington & Quincy Rd. Co. v. McSallen, 84 Ill. 109, the conductor of a special freight train received an order from the assistant superintendent directing him to run fifteen minutes behind the time of a regular freight train. In doing so he came in collision with a regular passenger train going in the opposite direction. The conductor was killed. No notice was given to

The court say:

the passenger train. The company was held liable. "As between the conductor and company, the assistant superintendent, to whose orders the trains are all subject, is the representative of the corporation. His orders to the conductor of a train are essentially the orders of the employer. This rule applies as well to all orders issued by his assistants in office and issued in his name. These orders were all signed in the name of Campbell, the assistant superintendent. If those intrusted by him with the arrangement of the business of the corporation, by orders issued in his name, neglect to issue a necessary order, that is his neglect and the negligence of the corporation."

In Kansas, in a similar case, the court say: "And those higher officers, agents or servants cannot, with any degree of propriety, be termed fellow servants with the other employees who do not possess any such extensive powers and who have no choice but to obey such superior officers, agents or servants. Such officers, agents or servants must be deemed in all cases, when they act within the scope of their authority, to act for their principal, and, in fact, to be the principal." It is conceded by the defendant's counsel that in Ohio, Illinois, Tennessee and Kentucky, the law is substantially as indicated by the authorities above referred to.

On the other hand it must be conceded that the cases above named and others of like import, are a departure from the general current of authorities elsewhere. A conductor and brakeman have been held to be fellow servants in Indiana and Michigan: Thayer v. St. Louis, &c., Ry. Co., 22 Ind. 26; Smith v. Ry. Co., 46 Mich. 258. So also an overseer and a laborer under his charge. Brown v. Winona, &c., Ry. Co., 27 Minn. 162; and a foreman and workman under him. Keystone Bridge Co. v. Newbury, 96 Penn. St. 246; Daubert v. Pickel, 4 Mo. App. 591; Hath v. Peters, 55 Wis. 405; Peterson v. Coal & Mining Co., 50 Iowa 674. In Massachusetts they have pretty rigidly adhered to the doctrine of the leading case of Farwell v. Boston & Worcester Rd. Co., 4 Met. 49. In one case there was an apparent weakening; Ford v. Fitchburg Railroad Co., 110 Mass. 260; but the court soon took pains to prevent that case from being regarded as a departure from the general rule. Holden v. Fitchburg Railroad Co., 129 Mass. 268. In that case GRAY, C. J., says, "If a master uses reasonable care in employing suitable servants, in supplying and keeping in repair suitable structures and engines, and in giving proper directions and

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taking due precautions as to their use, he is not responsible to one servant for the negligence of another in the management and use of such structures and engines in carrying on the master's work." In another place he adds: "And it makes no difference that the servant whose negligence causes the injury, is a sub manager or foreman of higher grade, or greater authority than the plaintiff."

In Feltham v. England, L. R., 2 Q. B. 33, it is said that the rule of exemption is not altered by the fact that the servant, guilty of negligence is a servant of superior authority, whose lawful direc tions the other is bound to obey.

In Wilson v. Merry, &c., L. R., 1 H. L. Scotch Appeals 326, the Lord Chancellor says: "But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do."

It seems to us that the rule prevailing in Massachusetts, and which did prevail in England previous to the passage of the "Employers' Liability Act," hereinafter referred to, unduly enlarges the exemption and confines the liability of employers within too narrow limits. If such a rule had been followed in Wilson v. Willimantic Linen Co., supra, the decision must have been otherwise. The rule, we think, does not sufficiently recognise the distinction between agents, managers, and even superintendents on the one hand, and mere servants and common laborers on the other-between duties which the master is required to perform and work which is ordinarily performed by employees. It makes little allowance for emergencies, and does not sufficiently regard the obvious fact that cases are constantly arising, especially in the operation of railroads, which no general rule can provide for, in which the master must be regarded as constructively present, in which some one must be invested with a discretion and a right to speak and command in his name and by his authority. Such a right carries with it the corresponding duty of obedience; some one must hear and obey.

To make no discrimination, but in all cases to place those who are invested with authority to direct and control on the same footing with those whose duty it is merely to perform as directed without discretion and without responsibility, seems to us unwise and impolitic.

We

The duties of a master in most cases are easily distinguished from those of an employee. The proprietor of a cotton mill is bound to have a safe building, a safe dam or engine, and safe machinery; and he is bound to keep them so. To do that he must employ skilled mechanics, who perform his duties. Their negligence is his negligence. The English rule says that he has done his whole duty when he has employed skilful, careful men to do this work. think that a more salutary rule would be to require him to see that the work is actually done with care and skill; to require him to inspect the work personally if competent, and if not, to employ others who are, and who will exercise more than ordinary care, so as to make it reasonably certain that the operatives will be surrounded by safe machinery and appliances. The liability of the master for the negligence of such agents is a surer guarantee of safety than immunity.

The diligence required will be the greater as the danger and hazards increase. The operation of a railroad requires a greater degree of care than the operation of a cotton mill. It is the duty of a railroad corporation to prepare a time-table and adjust the running of its trains so as to avoid collisions. It must also devise some suitable and safe method by which to run special and irregular trains, and regular trains when off their regular time. That cannot be done by general rules. Emergencies will arise which no system of rules can anticipate and provide for, in which the company must act and act promptly and efficiently. In this case the scheme devised was to have these trains controlled by one who knew the position and movement of every train on the road liable to be affected by them—a train dispatcher, acting in the name and by the authority of the superintendent. Is there not a wide and manifest difference between the duty of such an agent and the duty of a locomotive engineer? The duty of the former pertains to management and direction; that of the latter to obedience. It is immaterial that these men are hired and paid by a common employer, and that their employment is designed to accomplish one common result. That argument, if pressed to its logical conclusion, would obliterate all distinctions among those engaged in railroad business, from the president down to the humblest servant, and would practically exempt the company from all duty and all liability to those in its service.

A reference to the rules of the company in connection with the

facts will serve to show that the views above expressed are applicable to this case. Here were two irregular trains to be moved in opposite directions on a single track railroad so as to pass each other. It was necessary that their movements should be directed by instructions emanating from some one intelligent source. The rules of the company provide for moving trains by special orders. One rule is, "All orders shall be given by a superintendent, or by a dispatcher appointed for that purpose, under direction of a superintendent; no other person will be allowed to give them." Another rule is, "Division superintendents are supreme on their respective divisions, and are responsible only to the management for such orders as they may give." The following is from the finding of the court: "So far as the printed rules and regulations of the company did not govern, the train dispatcher was authorized to give such orders for the movement and protection of trains as he saw fit, and while so acting he had all the authority of, and acted in the stead and place of, the division superintendent."

The train-dispatcher then, in respect to the matter of moving these trains, was supreme. The whole power of the corporation, whose duty it was to move them safely, was delegated to him. He was the agent through whom the corporation attempted to perform its duty. He acted in its name, by its authority, and in its stead. The engineer was bound to obey his order. Disobedience or deviation would have been subversive of orders and discipline. destructive in its consequences, and just cause for immediate dismissal. He received an order to go west from Waterbury on a single track road at a time when another train was approaching Waterbury from the west. The order was imperative and it required of him implicit obedience. He obeyed. He did not then know the consequences, but the company did or should have known. He conformed to the order, as he was bound to; and while so conforming, and as the direct consequence thereof, he was injured. Reason, justice and law require that the company should be held responsible.

Another rule provides that "in emergencies each employee must promptly obey the orders of any superior officer." By that rule the company made the order of that officer, whoever he may be, and of whatever grade he may be, its own. If the order is an improper one, and, in executing it, another employee is injured, the company should be responsible. In such a case the grade of service becomes and is material.