The common law regulating the liability of masters for injuries received by servants in the course of their service, is thus stated by Chief Justice SHAW of Massachusetts, in a case which has the distinction of being cited as a leading one in England as well as in America: Farwell v. Boston & Worcester Rd., 4 Metcalf 49. (See also, Whart. on Neg.,

199; Thompson on Neg. 969; Totten v. Penna. Rd., 11 Fed. Rep. 564.) "He who engages in the employment of another for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment." Further on the chief justice says: Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each shall perform his appropriate duty, each is an observer of the conduct 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."

Certain limitations of this law must be noticed. The master must take care to provide good servants and suitable tools if he would avoid liability, but it is only reasonable care that the law exacts; the master is not an insurer.

For instance, machinery need not be fitted with the latest appliances if it is strong and safe with ordinary care:

A new trial is not ordered.

2 Thompson on Neg. 982-3; A. T. & S. F. Rd. v. Holi, 29 Kans. 149; M. C. Rd. v. Smithson, 45 Mich. 212; L. S. § M. S. Rd. v. McCormick, 74 Ind. 440. It is even the doctrine of some courts that the master is bound rather to good faith than to care, and so may use defective machinery provided the workman knows its condition: Hayden v. Mfg. Co., 29 Conn. 548. Contra, Kain v. Smith, 89 N. Y. 375. More care is required of the employer where a child is concerned than in the case of an adult hand Cooley on Torts 553; 2 Thompson on Neg. 977. If the master directs work in person he is answerable for the consequences of ordering hands into positions of unusual danger: Miller v. U. P. Rd., 17 Fed. Rep. 67; 2 Thompson on Neg. 974. If he turus over the whole ordering of the work to a superintendent, then by the law of agency the deputy stands in his principal's place.

But on the further point whether a deputy clothed with partial authority only a foreman or upper servantstands in the master's place, a decided change is taking place from the old rule that a foreman is a fellow-servant with others, and the master is, therefore, not liable for his negligence. Almost all the many decisions on this subject are railroad cases, where the question is the responsibility of the company for the negligence of such subordinate officials as track-masters, train-despatchers, conductors, engineers. It is impossible, here, to take up the examination of the law of every state. Suffice it to say that the western and southern states have, most of them, departed from the old rule. As the principal case indicates, so has Connecticut. So, in a measure, has New York. Pennsylvania keeps on the whole to the old law, to which Massachusetts

stoutly adheres: Malone v. Hathaway, 64 N. Y. 5; Coal Co. v. Jones, 86 Penn. St. 438. But see Mullen v. P. S. Co., 78 Id. 25; Holden v. Rd., 129 Mass.

268.

It was said by the Supreme Court of North Carolina, in a recent review of the authorities, that no definition of the term "fellow-servant," applicable to all cases, had yet been adopted by the courts, and probably could not be. So variant were the relations between master and servants in different employments, and so close the line of demarcation between co-laborers and middlemen, that each case would have to stand upon its own facts: Dobbin v. Rd., 81 N. C. 446. Thus, also, it has been decided that whether parties were fellow-servants was a question for a jury: I. & St. L. Rd. v. Morgenstern (Ill.), 12 Am. & Eng. Rd. Cases 228. A principle upon which the change in the law is based, and with which, certainly, no fault can be found, is that when the master delegates any duty which belongs to himself, he is liable for its proper performance : Hannibal & St. Joseph Rd. v. For (Kans.), 15 Am. & Eng. Rd. Cases

325.

Starting with this principle, one way of determining the line between a deputy and a mere servant is by the ruling that it is the absolute duty of the master to provide

proper instrumentalities for the conduct of the business, and if he commits this duty to a deputy, the master is nevertheless liable for its performance. This rule is well illustrated by two Minnesota cases: Drymala v. Thompson, 26 Minn. 40; Brown v. Rd., 15 Am. & Eng. Rd. Cases (Minn.) 333. In the first of these a train hand was hurt by cars being thrown from the track where the section-master, in repairing, had taken up a rail and had omitted to send out signals to warn approaching trains. 66 Here," ," said the court, in effect, "the track is an instrumentality necessary to the working of the road which it is the

master's absolute and personal duty to keep in repair, and as the company delegated this duty to the track-master, it is answerable to an employee for his neglect." In the other case a train ran into some cars which had been left standing upon the main track at a station, contrary to rule, and the engineer was injured. The fault was that of the station agent, who had charge of the station and the tracks about it. The court said, in substance, after referring to the previous case: "Here was an improper use of proper instrumentalities, and for this the company ought not to be held liable. Nor had the station agent any general superintendence of a branch of the business."

It is perhaps on this ground that it is generally held that servants in charge of the construction and repair of machinery are vice-principals: H. & T. C. Rd. v. Marcelles, 12 Am. & Eng. Rd. Cases 231; Hough v. Rd., 100 U. S.

213.

Another mode of determining the line between a deputy and a mere servant, is by ruling that the master is liable if the negligent servant is in charge of some department of the master's business. But this

being in charge" must be more than a mere right to oversee hands or direct work; it must be more than getting higher pay, or holding a position of special skill. Not the relative grade, but the nature of the duty, makes the difference. There must be some responsibility, some "control or superior authority over another" (MCCRARY, J., charging jury, Gravelle v. Rd., 3 McCrary 363), so as to put the deputy pro tanto in the master's place: Fraker v. Rd. (Minn.) 15 Am. & Eng. Rd. Cases 256; N. C. & St. L. Rd. v. Wheless, 10 Lea (Tenn.) 741, 15 Am. & Eng. Rd. Cases, 315; C. & A. Rd. v. May, (Ill.) Id. 320.

Thus, a railroad road-master-an officer usually considered a vice-principal-has been held not a vice-principal

when he was acting for the occasion as a mere foreman of a gang of laborers: Hoke v. Rd., 11 Mo. App. 574.

The decision of the Supreme Court of the United States, in C., M. & St. P. Rd. v. Ross, 24 Am. L. Reg. (N. S.) 94, cited in the principal case, though by a divided court-Justices MATTHEWS, GRAY, BRADY and BLATCHFORD, dissenting may mark a turning point in the law. The facts are these: The conductor of a freight train received a telegram to lay over at a certain station to allow a special train to pass. Instead of notifying the engineer at once, as the rules required, the conductor went into the caboose and went to sleep. The train did not stop at the station, collided with the special, and the engineer was killed.

The company was held liable. See also, Moon v. Rd., Ct. of App. of Va., 20 Cent. L. J. 33.

A third and very common test for determining the line between vice-principal and servant is, whether the party has power to employ and discharge hands. This is sometimes regarded as an absolute test, and sometimes as an element to be considered in the case: T. M. Rd. v. Whitmore, 58 Tex. 276; Tyson v. Rd., 61 Ala. 554; C. & A. Rd. v. May (11.), 15 Am. & Eng. Rd. Cas. 320, and note; Henry v. Brady, 9 Daly (N. Y.) 143. See also, Rd. v. Decker, 82 Penn. St. 119.

All three of the foregoing rules for distinguishing between vice-principal and servant, are illustrated in a late Wisconsin case: Peschel v. C. M. & St. P. Ry. (Nov. 1884), 21 N. W. Rep. 269. The plaintiff was injured while engaged with other mechanics and laborers, under a foreman, in putting up a water-tank and wind-mill. A post, called the anchor-post, had not been set deep enough in the ground and gave way, letting the hoisting tackle fall upon the plaintiff. The foreman in charge of the work had no general power to employ and discharge hands, though au

thorized, in certain cases, to discharge a man who did not give satisfaction and employ another. The foreman was himself under the orders of a mastercarpenter. It was held that the action came not from defective machinery, for which the master would be blamable, but from a faulty setting in place of machinery good in itself, which was the fault of the servants engaged in the work. It was also held that the foreman was a fellow-servant of the injured party.

It has been held that a delegation of authority will more readily be inferred where the master is a corporation, but it is not easy to deduce any rule on this point, because there are so few cases where the master is not a corporation. In England no such distinction is admitted Thompson on Neg. 1031, and note; Brickner v. Rd., 49 N. Y. 672; Patterson v. Rd., 76 Penn. St. 389; Malone v. Hathaway, 64 N. Y. 5 ; Howells v. Steel Co., L. R., 10 Q. B. 62.

In addition to the inquiry, who is to be deemed a vice-principal? the law is in a transition state as to the question, when are workmen in a common employment? The general rule laid down by Chief Justice SHAW, that they are in a common employment who serve and are paid by the same master, and aid in carrying out the same enterprise (Thompson on Neg. 1026), has been departed from in some states where it is held, those only are in a common employment who may actually o erlook each other's work Rd. v. Jones, 9 Heisk. (Tenn.) 27; McGowan v. Rd., 61 Mo. 528; Smith v. Potter, 46 Mich. 258; Rd. v. Morgenstern, 106 Ill. 216. It has been said to be the law in the federal courts that common employment means the same department of duty: GRESHAM, J., in King v. O. & M. Rd., 11 Bissell

362.

We are now prepared to look at the statutory changes in the law.

The fullest and most complete statute, the English Employers' Liability Act of

1880 (43 & 44 Viet. c. 42), provides that workmen, or their representatives, shall have an action against their employers (which includes associations, corporate or incorporate,) for injuries or death happening:

1. By reason of defects in " ways, works, machinery, or plant," arising from the employer's negligence, unless the workman knew of the defect and failed to give notice of it.

2. By reason of the negligence of any one having superintendence entrusted to him; or

3. By reason of the negligence of any person to whose orders the workman was bound to conform.

4. By reason of bad rules and regulations; but none shall be bad which have been approved by the proper department of government.

5. By reason of the negligence of any employee having "charge or control of any signal, points, locomotive engine, or train upon a railway."

The compensation to be recovered may not exceed the estimated earnings for three years previous, of workmen in like employment and in the same district, as the injured person. Notice of the injury must be given to the employer within six weeks, and suit begun within six months, or in case of death within twelve months, except that in cases of death the judge may excuse the lack of notice if he see fit. The act applies to railway servants and also to any "laborer, servant in husbandry, journeyman-artificer, or otherwise engaged in manual labor." By a hard though possibly accurate interpretation of these words, an omnibus conductor whose business it was to look out for passengers and take fares, was held not "engaged in manual labor": Morgan v. Omnibus Co., L. R., 13 Q. B. Div. 832.

According to English law the employer must provide proper and safe machinery, but the cases are not uniform on the point whether if the employed VOL. XXXIII.-59

knows the machinery unsafe and makes no complaint, he may hold the employer liable. We can come nearest to reconciling the decisions by saying with LORD COCKBURN, not very definitely, it must be admitted: "That the risks necessarily involved in the service must not be aggravated by any omission on the part of the master, to keep the machinery in the condition in which, from the terms of the contract, or the nature of the employment, the servant had a right to expect it would be kept :" Clarke v. Holmes, 7 H. & N. 937, Whart. on Neg. 210. See also Dynen v. Leach, 26 L. J. Ex. 221; Assop v. Yates, 2 H. & N. 767; Weems v. Mathieson, 4 Macqueen H. L. Cas. 215. But now the Employers' Liability Act settles it, and as we think rightly, that an employer is liable for defects in apparatus which he knows, or ought to know of; for a man cannot contract that he shall not be responsible for his own neglect, nor is the negligence of an employer a risk incident to his servant's employment. Thus, a case arose under the act, where a man had been killed by a lump of coke falling upon him from a lift under which he was standing. The sides of the lift ought to have been fenced in. It was argued that the word "defect" did not mean unfitness for the purposes to which it was applied of a machine perfect as far as it went, but the court said that if a machine was not suitable for the purposes it was used for, of course it was defective: Heske v. Samuelson, L. R., 12 Q. B. 30. A "defect in condition of ways "" defect in the way itself; not an obstruction lying in it: McGiffin v. Shipbuilding Co., L. R., 10 Q. B. Div. 1.

means a

In making the master responsible for the negligence of his superintendent, and for bad rules and regulations, the Employers' Liability Act is declaratory of the existing law, but it introduces a material change when it makes the employer answerable for the negligence of