We must tion for the fellow-servant rule in this country. look to the Supreme Court of Ohio to find the first recognition of the limitation. In 1851 the case of Little Miami Railroad Co. v. Stevens1 came before that court, and it was adjudged, quoting from the syllabus, that "where an employer placed one person in his employ under the direction of another, also in his employ, such employer is liable for injury to the person of him placed in the subordinate situation, by the negligence of his superior." Applying this principle, the court held that a railroad company is liable where it places an engineer under the orders of a conductor and he is injured through the negligence of the latter. "We could easily suppose a case," said Caldwell, J., "where two persons employed by the same individual, and standing on a perfect equality-where the business was managed as much by one as the other-where they would stand on the same footing as men in the community generally do-in which the employer would not be liable for an injury done to one by the negligence of the other. But we regard this case as standing on an entirely different footing." The Court specifically refused to be bound by the reasoning in the Farwell case and the Murray case, saying: "The case in 4 Metcalf denies the right of recovering, principally on two grounds, namely, that the person employed contracts with reference to the perils of the employment; and that he receives a compensation, in the way of wages, for such perils, and therefore he cannot recover; and that it would be contrary to public policy to permit a recovery, as the tendency would be to produce carelessness on the part of persons thus employed. The decision in 1 McMullan appears to be based principally on the first of these two propositions. We have noticed both of these propositions in our previous remarks. In both cases much stress is laid upon the fact that no precedent of 1. 20 Ohio, 416. It is a recovery under such circumstances is to be found. to be noticed, that in both of these cases the facts differ in some particulars from the present; we must admit, however, that the reasoning in those cases would cover the one now before us. So far as those cases decide that a recovery cannot be had in a case like the one now before the Court, we think they are contrary to the general principles of law and justice, and we cannot follow them as precedents." The doctrine thus became firmly rooted. The same court took the same view again in 1854 in the case of Cleveland, etc., R. Co. v. Keary.1 The decision in the Stevens case having been made by a divided court, and its correctness having been denied, the Court again examined the grounds on which it was placed, and the rule there laid down met with the unanimous approval of the Court. Judge Rainey carefully specified that the doctrine applied to corporations, which could not act in person, and went also to the full length of denying the doctrine of Priestly v. Fowler and Farwell v. Railroad Co. He brought forward in support of this view the Scots case of Dixon v. Rankin,2 decided in 1852, wherein the 1. 3 Ohio St. 201. In this case it was held that where a railroad company place a brakeman in their employ under the control of the conductor, the latter having exclusive command of the train, and the brakeman, without fault on his part, is injured by the carelessness of the conductor, the company is liable. 2. I Am. Ry. Cas. 569; 14 Sec. Ser. 420. In this case the Lord Justice clerk, after referring to the English decisions, proceeds to say: "The master's primary obligation in every contract of service, in which his workmen are employed in a hazardous and dangerous occupation, for his interest and profit, is to pro vide for and attend to the safety of the men. That is his first and leading obligation, paramount even to that of paying for their labor. This obligation includes the duty of furnishing good and sufficient machinery and apparatus, and of keeping the same in good condition, and the more rude and cheap the machinery, and the more liable on that account to cause injury, the greater his obligation to make up for its defects by the attention necessary to prevent such injury. In his obligation is included, as he cannot do everytning himself, the duty to have all acts by others whom he employs done properly and carefully in order to avoid doctrines of the English cases were repudiated, and an exactly contrary decision made. In subsequent cases, however, the Court recognized and applied the ordinary rule and expressly stated that the earlier cases turned upon the subordination of the injured servant. The exception engrafted into the doctrine by the Ohio court by these early cases, and now recognized, is this: that where one servant risk. This obligation is not less than the obligation to provide for the safety of the lives of his servants by fit machinery. The other servants are employed by him to do acts which, of course, he cannot do himself, but they are acting for him, and instead of himself, as in his hands. For their careful and cautious attention to duty, and for their want of vigilance, and for their neglect of precaution by which danger to life may be caused, he is just as much responsible as he would be for such misconduct on his own part if he were actually working or present. And this particularly holds as to the person he intrusts with the direction and control over any of his workmen, and who represents him in such a matter." And he adds: "There have been many cases in Scotland, at all periods and during the last fifty years, a very large number which proceeded on this as a fixed principle of the law as to the contract of service." Lord Cockburn, after stating that "the plea that the master is not liable rests solely on the authority of two or three very recent decisions of English courts," says: "If this be the law of England I speak of it with all due respect. But it most certainly is not the law of Scotland. I defy any industry to produce a single decision, or dictum, or institu tional indication, or any trace of any authority to this effect, or of this tendency, from the whole range of our law. If such an idea exists in our system, it has, as yet, lurked undetected. It has never been condemned, because it has never been stated." After alluding to the fact that the rule had been pressed upon the Court, not only on account of the weight of English authority, but for its own inherent justice, he proceeds: "This last recommendation fails with me, because I think the justice of the thing is exactly in the opposite direction, I have rarely come upon any principle that seems less reconcilable to legal reason. I can conceive some reasonings for exempting the employer from liability altogether, but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for reparation, because they incur danger on his account, and certainly are not understood, by our law, to come under any engagement to take these risks on themselves." This decision, however, as we have seen, was overruled by the House of Lords in so far as it was inconsistent with Priestly v. Fowler and Bartonshill Coal Co. v. Reid, 3 Macqueen, 266. is placed in a position of subordination to and subject to the orders and control of another servant of a common master, and the subordinate servant, without fault of his own, and while in the performance of his duty, is injured through the negligence of the superior servant while acting in the common service, an action lies in favor of the inferior servant so injured against the master.1 45. Same.-Rule in Kentucky.— The This doctrine (the superior servant limitation) was early taken up in Kentucky, but the courts of that State have never gone to the extent of the early Ohio cases. leading authority is Louisville & N. R. Co. v. Collins,2 decided by Chief Justice Robertson, in 1865, when the whole question was new and unsettled in that court. A common laborer, assisting an engineer in righting a locomotive, was injured by the negligence of the latter in starting the locomotive while the former was working beneath it. He sued the company and obtained a verdict for five thousand dollars in the trial court. "The appeal presented," said Judge Robertson, "the question involving the legal liability of railroad companies for damages. resulting to an inferior from the negligence of a superior 1. Mad River, etc., R. Co. v. Barber, 5 Ohio St. 541; Whaalen v. Mad River, etc., R. Co., 8 Ohio St. 249; Pittsburg, etc., R. Co. v. Devinney, 17 Ohio St. 197; Manville v. Cleveland & T. R. Co., 11 Ohio St. 417; Meara v. Holbrook, 20 Ohio St. 137; Berea Stone Co. v. Kraft, 31 Ohio St. 287; Kumler v. Junction R. Co., 33 Ohio St. 150; Pittsburg, etc., R. Co. v. Lewis, 33 Ohio St. 196; Pittsburg, etc., R. Co. v. Ranney, 37 Ohio St. 665; s. c., 5 Am. & Eng. R. R. Cas. 533; Lake Shore, etc., R. Co. v. Lavalley, 36 Ohio St. 221; s. c., 5 Am. & Eng. R. R. Cas. 549; Pittsburg, etc., R. Co. v. Henderson, 37 Ohio St, 549; s. c., 5 Am. & Eng. R. R. Cas. 529; Dick v. Railroad Co., 38 Ohio St. 389; s. c., 8 Am. & Eng. R. R. Cas. 101; Little Miami, etc., R. Co. v. Fitzpatrick, 42 Ohio St. 318; s. c., 17 Am. & Eng. R. R. Cas. 578. In the case last cited, however, it was held that inspectors of cars and brakemen are fellow-servants, and a railroad company is not liable for an injury to the latter, occasioned by the negligence of the car inspector. 2. 2 Duv. (Ky.) 114; s. c., 87 Am. Dec. 486. employe, while engaged in different spheres of employment in the common service of any such corporation." After disposing of the question of contributory negligence, the Court proceeded to the discussion of the main issue involved, and said: "In all these operations (the running of trains) the invisible corporation, though never actually, is yet always constructively, present through its acting agents, who represent it, and whose acts within their representative spheres, are its acts. Had the appellee been a stranger, the appellant would therefore have been certainly suable and responsible in this action, and we cannot admit that the appellee's relation as an employe in its service should exempt the corporation from that general liability, as it might perhaps do by the application of a recent rule adjudged in England, with some exceptions, and echoed, with still 'more exceptions, by a few American courts. But this anomalous rule, even as sometimes qualified, is, in our opinion, inconsistent with principle, analogy, and public policy, and is unsupported by any good or consistent reason. In the use and control of the engine the engineer is the chief and governing agent of the corporation, and all his associates in that employment are employes in 'a common service.' Neither of these subordinates under his control is, as between themselves, an agent of the railway company, and therefore it is not responsible for any damage done by one of them to another while in its service, and so far the British rule has foundation in both reason and analogy, but beyond this it is baseless of any other support than a falsely assumed public policy or implied contract. In the employment and control of his subordinates the engineer acts as the representative agent of the common superior-the corporation. They have no authority to control or resist him in his allotted sphere of service, and why, then, should the law imply a contract to trust him alone, and never look to the corporation, as his |