portant ones provided in very careful detail for a severance of purely trust estates from their general assets and their further management and administration, not by the executors, but by five out of the six of them holding as trustees. Since a serious portion of the trust estates consisted of real property, provision was made for a suitable partition for the purposes of the trusts, and a broad and abundant authority given for the management of the lands. The trustees were empowered to lease the improved property for a period not exceeding five years, and that which was unimproved for not more than twenty-one years. Authority was conferred to sell the lands in other States, the unimproved property in this State, and the dwelling-house with the consent of the widow; and the trustees were authorized to rebuild structures destroyed or impaired and erect new buildings upon uuimproved property so as to render it productive.

A further provision of the will is quite significant. The trustees are empowered, in their discretion, through the agency of a revocable power of attorney, to commit the management of certain of the trust estates to the beneficiary, but preserving in themselves the title and resuming control whenever they should deem it advisable. It is impossible to reflect upon these provisions of the will without a resultant conviction that the testator contemplated and provided for two separate duties to be performed by his representatives, one as executors and the other as trustees, the latter to commence at the termination of the former, and to begin with a severance of the trust estates from the general assets, and to be held and managed thereafter by his executors, or some among them, in the capacity of trustees. Such a severance was in fact made. The accounts of the executors as such were settled, and there was left nothing but the trust estates to be managed for the beneficiaries. Separate accounts were opened with each, and they were held and managed for many years with a great amount of labor, with a large demand upon the care and patience of the trustees, and with a very heavy burden of responsibility. We think it was a proper case for the allowance of commissions to the same persons, first in the character of executors and then in that of trustees.

The appellants however further insist that the commissions of the trustees should not be computed upon the value of the real estate, and the argument is that commissions are only given upon sums of money or their equivalent received and paid out; that the trustees never received the fee of the lands, since that fee vested at once in the grandchildren, the trustees taking only an estate commensurate with their trust, which simply terminated, and was never transferred or paid over. We think this objection is well founded and that as it respects real estate held in trust, the commissions of the trustees are not to be computed upon the value of the land which remains unsold. The office of a trustee was at first deemed honorary and without compensation, but our statute changed the rule, and allowed compensation to executors, administrators and guardians at a fixed percentage to be computed upon all sums received and paid out. Trustees were not named specifically in the enactment, but they were held to be within the equity of the statute, and entitled to compensation as if included within it. To that we must therefore refer, and by that be goverued in determining what allowance, if any, is to be made. Sums received and paid out are made the basis of computation. It has nevertheless been held that securities received by an executor, and by him turned over to the parties entitled, might be treated as money received and paid out for the purpose of computing

commissions. This was itself an extension of the authority of the statute, justified by the consideration that what was accepted as money by the parties interested might well be treated as such for purposes of compensation.

But we are asked now to take a step further, and give a new extension to the act, which does violence to its language, and makes land in no just sense received or transferred constructively money. The only authority for this doctrine is the case of Wagstaff v. Lowerre, 23 Barb. 209, and a few cases in the Supreme Court and the Surrogate's Court in the city of New York, which have followed it as authority. Wasgtaff v. Lowerre was a Special Term decision. It cited as authority but two cases, neither of which justified the conclusion reached. In one of them (Matter of De Peyster, 4 Sandf. Ch. 511) the court said: "There is force in the argument that no well grounded distinction between lands and stocks as to the trustees' compensation," but the remark was uncalled for and unnecessary for the purposes of the decision. The lands there in question had been bid in upon foreclosure of mortgages belonging to the estate, and in equity remained personalty, and were therefore treated as such in the hands of the trustees.

The other case cited (McWhorter v. Benson, Hopk. 28) gives no indication that real estate was at all in question, and the elaborate opinion of the chancellor aims only to show that the statute had fixed a definite rate of compensation for au executor's services; a rate computed upon the sums of money received and paid out; and that an allowance of a gross sum was not permissible. Wagstaff v. Lowerre therefore stood upon no existing authority, and it can have only the force derived from its reasoning. In this court the question is an open oue, and so far as we have been able to ascertain, has never been discussed and decided. We ought not to wander from the statute and strain its construction to an extent approaching perilously near to legislation.

In the present case the fee of the lands, it is conceded, vested in the grandchildren by force of the will at the date of the death of the testator. The estate of the trustees took priority, but only for the purposes of the trust. Stevenson v. Lesley, 70 N. Y. 512. They were authorized to sell and to rent the real estate. Upon all sums of money thus realized, and passing through their hands they were entitled to commissions; but the unsold lands at the close of the trust passed to the possession of the remaindermen, not through any title derived from the trustees, but by force of the original devise. The trustees transferred no land, but simply refrained from exercising their power of converting it into money. And so they not only never paid it out, even constructively by any grant or conveyance, but never even received the absolute fee which all the time was a vested interest in remainder. Their estate was simply commensurate with their trust, bounded as to duration by the terms of the trust, and as to the unsold lands never equalling in value that of the fee.

We must therefore adhere to the statutory basis of computation, and decline to advance further in a construction which steadily departs from a plain and unambiguous enactment having a definite purpose and meaning. If hardship or injustice shall result, of which we are by no means certain, the remedy may be readily applied by further legislation.

So much of the judgment as allows commissions upon the value of the unsold lands should be reversed without cost to either party.

All concur.
Judgment accordingly.

MASTER AND SERVANT - DEFECTIVE MACHINERY-NEGLIGENCE OF CO-SERVANTSTATUTE-CONTRIBUTORY NEGLIGENCE.

SUPREME COURT OF THE UNITED STATES, FEBRUARY 1, 1886.

NORTHERN PACIFIC RAILROAD Co. v. HERBERT. A railroad company is liable for an injury sustained by its brakeman by reason of a defective and worn-out brake, which had been long in that condition, to the knowledge of the yard-master, and which defect might have been ascertained by inspection.

This liability is not affected by a statute which enacts that an employer is not bound to indemnify his employee against the negligence of another employee in the same general business, unless he failed to use ordinary care in the selection of the culpable employee.

The brakemar having been employed but one day in the yard, was not chargeable with contributory negligence unless the defect was patent or he had been informed of it.

know, and that he did know, the condition of each of the cars, and that he carelessly put his leg between them when setting the brake of the forward car, and thus, through his own fault, suffered the injury of which he complains.

There was a verdict in favor of the plaintiff for $25,000. A motion for a new trial was made on various grounds; among others, that the damages were excessive. The court ordered that a new trial be granted unless he remitted $15,000 of the verdict, and in case he did so that the motion be denied. He remitted the amount, and judgment was entered in his favor for the balance, and costs of suit, which the Supreme Court of the Territory affirmed.

For the reversal of the judgment several errors of the court below are assigned; but so far as they are deemed material, they may be reduced to four: (1) In sustaining a challenge to a juror; (2) in denying a new trial on condition that the plaintiff should remit a part of the sum awarded by the verdict; (3) in refusing to dismiss the suit at the close of the plaintiff's case; (4) in refusing to charge that the plaintiff should have taken notice of the defects in the cars, and that he was

IN

W. P. Clough and George Gray, for plaintiff in error Thomas Wilson, for defendant in error.

FIELD, J. The Northern Pacific Railroad Company is a corporation created under the laws of Congress to construct a railroad and a telegraph line from Lake Superior to Puget Sound. In 1879 it had constructed and was operating the road from Duluth, in Minnesota, to Bismarck, in Dakota. On the 24th of October of that year the plaintiff in the court below, the defendant in error here, was a brakeman in its yard at Bismarck, where its cars were switched upon different tracks and its trains were made up for the road. It was his duty, among other things, to set and loosen the brakes of the cars whenever necessary, and whenever ordered to do so by the yard-master. At the time mentioned he was ordered to stop, with the brakes, two cars which had been switched upon a track in the yard. In obedience to his order, he went upon the rear car and attempted to set the brake attached to it, but the brake was so badly broken and out of order that it could not be made to work. As soon as he discovered this he stepped on the forward car in order to stop it. The brake on that car was a "step brake," and in order to work it he was obliged to place his foot on the step attached to the car below the top, and this brought his foot and leg between the two cars. This brake was also out of order, and while attempting to set it, his foot being upon the step, the car struck another car on the track, and was suddenly stopped. The draw-bar and bumper of the rear car had been pulled out, and for want of them the two cars, when the forward one was suddenly stopped, came violently together, crushing his leg so that amputation became necessary. To recover damages for the injuries sustained he brought this action against the company, alleging that it was its duty to provide good and safe cars, and machinery and apparatus of a like character for braking and handling them, and also to make rules and regulations for switching and handling them in the yard, and for notifying employees of the condition of defective and broken cars, so that they might not be subjected to unnecessary danger; but that it neglected its duty in these particulars, and thereby, without his fault, he was injured as stated.

In its answer the company admitted the allegations as to the employment of the plaintiff and the injuries he had received, but set up that it was his duty to

him of a right to recover.

[Omitting first two grounds.]

3. The dismissal of the suit at the close of the plaintiff's case was moved on the ground that the plaintiff had failed to establish a cause of action; and in support of this position it is contended that the plaintiff was a fellow servant of the officer or agent of the company who was charged with the duty of keeping the cars in order, and therefore could not recover against the company for injuries suffered by reason of the latter's negligence, and that this exemption from liability is declared by the statute of Dakota. The general doctrine as to the exemption of an employer from liability for injuries to a servant caused by the negli gence of a fellow-servant, in a common employment, is well settled. When several persons are thus employed, there is necessarily incident to the service of each the risk that the others may fail in that care and vigilance which is essential to his safety. In undertaking the service he assumes that risk, and if he should suffer he cannot recover from his employer. He is supposed to have taken it into consideration when he arranged for his compensation. As we said on a former occasion: "He cannot in reason complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid." Chicago & M. R. Co. v. Ross, 112 U. S. 377-383; S. C., 5 Sup. Ct. Rep. 184.

It is equally well settled however that it is the duty of the employer to select and retain servants who are fitted and competent for the service, and to furnish sufficient and safe materials, machinery, or other means by which it is to be performed, and to keep them in repair and order. This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed no duty required of him for the safety and protection of his servants can be transferred so as to exonerate him from such liability. The servant does not undertake to incur the risks arising from the want of sufficient and skillful co-laborers, or from the defective machinery or other instruments with which he is to work. His contract implies that in regard to these matters his employer will make adequate provision that no danger shall ensue to him. This doctrine has been so frequently asserted by courts of the highest character that it can hardly be considered as any longer open to serious question.

It was substantially declared in the recent case of Hough v. Railway Co., 100 U. S. 213; S. C., 34 Am. Rep. 621, where we said that notwithstanding a rail

of services, about which there is considerable conflict of opinion, but of the different employment. In the repair of the machinery the servant represented the master in the performance of his part of the contract, and therefore in the language of the instructions his negligence in that respect is the omission of the master or employer in contemplation of law.'"

Numerous decisions from other courts to the same purport might be added. Bessex v. Chicago & N. W. R. Co., 45 Wis. 477, 481; Wedgwood v. Chicago & N. W. R. Co., 41 id. 478; Toledo R. Co. v. Conroy, 68 Ill. 561; Drymala v. Thompson, 26 Minn. 40. The doctrine laid down in them is specially applicable when the employer is a common carrier of passengers and property, and steam is the motive power, inasmuch as any defect in the machinery may be followed by serious disasters. The same considerations which render him responsible in such cases for the safe transportation of passengers and property should also impose upon him an equal responsibility to his employees, so far as their safety depends upon the character and condition of the machinery and appliances used in the transportation. Where the employee is not guilty of contributory negligence, no irresponsibility should be admitted for an injury caused to him by the defective condition of the machinery and instruments with which he is required to work, except it could not have been known nor guarded against by proper care and vigilance on the part of his employer.

According to the authorities cited there can be no question as to the liability of the railroad company to the plaintiff for the injuries he sustained. If no one was appointed by the company to look after the condition of the cars, and see that the machinery and appliances used to move and to stop them were kept in repair and in good working order, its liability for the injuries would not be the subject of contention. Its negligence in that case would have been in the highest degree culpable. If however one was appointed by it charged with that duty, and the injuries resulted from his negligence in its performance, the company is liable. He was, so far as that duty is concerned, the representative of the company. His negligence was its negligence, and imposed a liability upon it, unless, as contended, it was relieved therefrom by the statute of Dakota.

Section 1130 of the Civil Code of that Territory is in these words:

"CO-EMPLOYEES. An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee."

The next section, 1131, is as follows:

"EMPLOYER'S NEGLIGENCE. An employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care."

We do not consider that the first of these sections changes the law previously existing as to the exemption of an employer from personal responsibility for injuries committed by a servant to a fellow-servant in the same general business, or identifies the business of providing safe machinery and keeping it in repair with the business of handling and moving it. The two kinds of business are as distinct as the making and repairing of a carriage is from the running of it. They are, as stated in the case cited by the Supreme Court of Massachusetts, from which we have cited above, separate and independent departments of service, though the same person may by turns render service in each. The person engaged in the former

represents the employer, and in that business is not a fellow-servant with one engaged in the latter. The words" same general business" in the section have reference to the general business of the department of service in which the employee is engaged, and do not embrace business of every kind which may have some relation to the affairs of the employer, or even be necessary for the successful management. If any other construction were adopted, there would, under the section, be no such thing as separate departments of service in the business of railroad companies; for whatever would tend to aid in the transportation of persons and property would come under the designation of its general business. The same section is in the Civil Code of California, and our construction of it accords with that of the Supreme Court of the State.

In Beeson v. Green Mountain Gold Min. Co., 57 Cal. 20, the defendant, a corporation engaged in quartz mining, appointed a superintendent to supervise and manage its mining operations, with authority to discharge and employ laborers at the mine. One of the laborers thus engaged lost his life in a fire, which originated from a defective pipe put up by a tinner under the supervision of the superintendent, and connected with the engine used to raise ore and take water from the mine. It did not appear that the deceased knew,or had reason to know, of the defect. In an action by his widow for damages in consequence of his death, it was held, against the contention of the company, that the superintendent was not a fellow employee of the deceased in the sense intended by the section; that for the purposes of managing the business and determining what machinery should be used and how placed, he was the representative of the company, and that the deceased was not bound to know whether a defect existed in the machinery and appliances not within his view, but had a right to rely upon the implied engagement of the company that the pipe was properly placed and constructed. It was also held that the tinner in performing his share of the work was not a fellow-servant of the deceased; that as his work was done under the direction and supervision of the superintendent, it was the same as if done by the superintendent in person.

We do not perceive that the provision of the sixth section of the Civil Code of Dakota, that in the Territory "there is no common law in any case where the law is declared by the Codes," at all affects the question before us. There cannot be two rules of law on the same subject contradicting each other; therefore where the Code declares the law there can be no occasion to look further; but where the Code is silent the common law prevails. What constitutes the "same general business" is not defined by the Code, but may be explained by adjudged cases. The declaration by the Code of a general rule, which is conformable to existing law, does not prevent the courts from looking to those cases for explanation any more that it prevents them from looking into the dictionary for the meaning of words.

Section 1131 of the Dakota Code expresses the general law, as we have stated it to be, that an employer is responsible for injuries to his employees caused by his own want of ordinary care. His selection of defective machinery, which is to be moved by steam power, is of itself evidence of a want of ordinary care; and allowing it to remain out of repair when its condition is brought to his notice, or by proper imspection might be known, is culpable negligence. Here the cars had been defective for years. The brakes were all worn out, and their condition had been called to the attention of the yard-master, who had control of them while in the yard, and might have been ascertained,