employer and constituent, for indemnity for damage resulting from his willful wrongs or grossly negligent omissions? When they engaged to serve under him, perhaps they knew nothing of his trustworthiness or his credit; but they knew that they would serve a corporation, and probably faith in its responsibility and protection induced them to venture into its service, and this faith may be presumed to include assurance of safety as well as of pay. Perhaps if they had understood that the corporation would not be responsible for the conduct of its engineer, they would never have risked such service under him. The contract implied by law would, therefore, rather seem to be that the subordinates should look to the corporation, and not its agent alone, for indemnity for loss arising to them from his unskillfulness or culpable negligence. case. "Nor can we perceive how public policy could be subserved by the irresponsibility of the corporation in such a Such exemption, if known, might possibly stimulate the subordinates to a more vigilant observance of the engineer's conduct; but why should they be left to depend on that which could be of little, if any, avail to prevent the un`skillfulness or negligence of a superior above their dictation or control? In their employment, having * * * * nothing to do with the cars or the running of them, they, like the corporation's mere wood-choppers, are comparative strangers to the engineer and his running operations, and seem to be entitled to all the security of strangers. They may be presumed to know no more than strangers about the skill or care of the engineer, nor have they any more control over him or connection with his running arrangements or operations. They are, therefore, not, in the essential sense of contradistinctive classification, 'the same service' with the engineer and his running co-operators, who act in a different sphere and constitute a distinct class; consequently, neither of the assumed reasons for the British rule as to employes 'in the same service' can be, in any way, consistently applied as between the engineer and such common laborers as the appellee; and the apparent extension of the rule to them may be deemed inadvertent, or not carefully and logically considered with rational discrimination and precision. We therefore can neither feel the rationale, nor acknowledge the authority of the crude and self-contradictory decisions, or loose and incongruous dicta referred to on that subject; but to harmonize the law, we must recognize a more congenial principle of normal vitality, and adjudge, as we now do; that the appellee, in his humble and isolated employment, should be treated as a stranger to the engine as a motive power, and if without fault himself, might, like other strangers, recover from the railway corporation for a loss arising from the ordinary negligence of its engineer; but as the jury might possibly have found that he himself had been negligent, the Circuit Court was right in requiring proof of gross negligence by the engineer, which, in that contingency, would have been necessary to the liability of the appellant. This is the only doctrine we cannot recognize as consistent with the enlightened and homogeneous jurisprudence of this clearer day of its ripening maturity; and looking through the mist of the adjudged cases and elementary dicta, we can see no other fundamental principle which can mould them into a consistent or abiding form. That principle is the only safe clue to lead the bewildered explorer to the light which shows the sure way of right and proves the true doctrine of American law." * * Not one of the authorities accumulated in the twentyeight years since Priestly v. Fowler was decided are cited by the Court. In view of weight and number of these decisions it is certainly not an assurance of the erudition of the Court for it to casually mention "a recent rule adjudged in England, with some exceptions, and echoed, with still more exceptions, by a few American courts." It is enough to say, however, that the doctrine of this case has been the rule in Kentucky since it was decided.1 § 46. The Rule in Other States.— It is not inaccurate to say that the limitation upon the general rule first conceived by the Supreme Court of Ohio, and afterwards taken up by the Kentucky Court of Appeals, has received a recognition at one time or another, and more or less limited, by a decided minority of the jurisdictions in this country. The growth of the rule has been much obscured by the reports frequently omitting to mention the cases cited by counsel, and sometimes the judges increase this difficulty, by taking up the ideas pressed upon them, but not alluding to the authorities relied on. Owing to this reason, perhaps, as well as to others, there is seemingly much inconsistency in the decisions of many of the same states. We shall then, as the best way of discovering exactly how far the superior servant limitation has been recognized, examine the decisions of those states which have been accredited with approving of it, 1. Louisville & N. R. Co. v. Robinson, 4 Bush (Ky.) 508; Louisville, etc., R. Co. v. Cavens, 9 Bush (Ky.) 559; Kentucky Cent. R. Co. v. Ackerly (Ky.), 8 S. W. Rep. 691. In Louisville, etc., R. Co. v. Moore (Ky.), 24 Am. & Eng. R. R. Cas. 443, it was held that a conductor was not a fellow-servant of a brakeman. The Court observed: "Here the conductor had the entire control of the train; and subject to him to a certain extent, the engineer had control of the brakemen. These two superior officers were the personal representatives of the corporation as to the appellee, and for the gross Their acts were neglect of either the corporation is § 47. Alabama. A decision from this state has been cited in a recent text book1 as supporting the limitation, This is the casc of Walker v. Bolling. All this case decides is, that where there is a general manager or superintendent who is invested by the common employer with the duty and authority of employing and dismissing the inferior servants or agents who are under him, the master is responsible for acts of negligence on the part of the superintendent in failing to exercise due care and diligence in employing competent agents, or in not dismissing those who are proved to be incompetent; that the master is bound to use ordinary care toward his servant, and not expose to unnecessary risks; and this duty he does not discharge when he associates with him in a service of peril those who are wanting in ordinary skill and prudence. To supply suitable and competent fellow servants is one of the first duties of the master. The servant who performs this duty represents him. So far, then, from this case affirming the superior servant doctrine, it is one of the most common applications of the ordinary and correct rule. A later decision goes to the extent of holding that when the duties entrusted to an officer are such as cannot properly be performed by the corporation itself, its president, or board of directors, then his negligence is not that of the corporation, unless it has failed to exercise due care in the selection of a proper officer. officer. It was accordingly adjudged in an action by a fireman on a construction train, to recover from a railroad company for personal injuries from the engine being run into a section washed out by recent rains, that the roadmaster whose duty it was to look after the track and roadbed was a fellow servant of the fireman.3 1. Beach, Contrib. Neg. § 110. 2. 22 Ala. 294. 3. Mobile & M. R. Co. v. Smith, 59 Ala. 245. This decision, however, is clearly opposed to the weight of authority.1 48. Connecticut. The Supreme Court of Errors of this state follow the general rule. The only case that has been cited to support the limitation is that of Wilson v. Willimantic Linen Co.,2 where the negligence of a factory superintendent in respect to machinery was held to be the negligence of the proprietors. The Court, in effect, states the rule to be that where the master instead of attending personally to the duty of providing a reasonably safe place for his servants to work and reasonably safe appliances, employs another who does it negligently, so that a servant receives an injury by reason of the negligence, the master is liable. The Court cites and follows cases from Massachusetts, Vermont, New York and other states where the limitation is denied. 49. Georgia.-— The courts of this state are inclined to favor the limitation. In a case decided in 1882,3 Chief Justice Jackson, speaking for the Court, said: "A corporation acts only through agents, and unless responsible for their acts is wholly irresponsible. The agent who represents the corporation as master over other employes for the time is in the shoes of the corporation, and whether they fit him, and he wears them with propriety or not, is their concern, for the reason that the corporation employs him, and puts others under him as a skilled and prudent manager. * From the president and general superintendent down to the 1. See ante § 29. 2. 50 Conn. 433; s. c., 47 Am. Rep. 653; see also Burke v. Norwich & W. R. Co., 34 Conn. 479; Darrigan v. New York & N. E. R. Co., 52 Conn. 285; s. c., 23 Am. & Eng. R. 3. Atlanta Cotton Factory Co. v. Speer, 69 Ga. 137 ; s. c. 47 Am. Rep. 750. |