cases holding the master liable where the question has been raised, can be upheld without the support of the limitation. Thus a section foreman who failed to keep the roadbed in repair, whereby a brakeman was injured, has been held to represent the master;1 and a superintendent having charge of machinery; and a foreman hiring an inexperienced boy and placing him to work with dangerous machinery ;3 and a train dispatcher of a railroad, who has the control of the movement of its trains, and to whose orders the conductors and engineers are subject; and a master mechanic and wreck master supplying improper appliances for coupling cars whereby a bridge carpenter was injured. 5 But in several recent cases the Court has undoubtedly inclined towards the limitation, and neglected the application of the rule laid down in Brothers v. Carter, viz. : that it is the act out of the negligent performance of which the injury arose which determines whether the servant performing it is a fellow-servant of the employe injured, or a representative of the master. This is noticeable in the case of Moore v. Wabash, etc., R. Co." In that case it appeared that the company had established a rule requiring all car repairers, when engaged in repairing cars, to set out red flags on each side of the place where they were at work as signals of warning to approaching trains. Notwithstanding this rule, the foreman of car repairs directed the plaintiff, without any flags being set out, as required by such 163; McDermott v. Pacific R. Co., 30 Mo. 115; Rohback v. Pacific R. Co., 43 Mo. 187; Brothers v. Carter, 52 Mo. 373; s. c., 14 Am. Rep. 424; Thorpe v. Missouri Pac. R. Co., 89 Mo. 65. Compare Gormley v. Vulcan Iron Works, 61 Mo. 492. 1. Lewis v. St. Louis, etc., R. Co., 59 Mo. 495; s. c., 21 Am. Rep. 385. See ante § 29. 2. Brothers v. Carter, 52 Mo. 373; s. c., 14 Am. Rep. 424. 3. Dowling v. Allen. 74 Mo. 15; s. c., 41 Am. Rep. 298. 4. Smith v. Wabash, etc., R. Co., 92 Mo. 359. 5. Tabler v. Hannibal & St. Jo. R. Co., 93 Mo. 79; s. c., 31 Am. & Eng. R. R. Cas. 185. 6. 52 Mo. 373. rule, to repair the drawhead of a car, promising to protect him while so engaged, and an engine ran against the car severely injuring him. The company was held liable on the ground that the foreman was the alter ego of the company, and his promise of protection was binding, although the rule provided to secure the safety of the men had not been observed, but dispensed with. And in another case1 the Court said: "The law is well settled, in this State and many others, that where the master appoints an agent with a superintending control over the work, and with power to employ and discharge hands, and direct and control their movements in and about the work, the agent, in respect of such matters, stands in the place of the master. His negligence is the negligence of the principal, and for which the latter is liable." Other cases also have taken this view, and the Court may now be said to be on the side of those favoring the limitation. 57. Nebraska.— The Ohio cases are followed in this State, and the limitation therefore prevails to its fullest extent. In Chicago, etc., R. Co. v. Lundstrum,3 Cobb, C. J., after quoting the rule laid down by Judge Ranney of that State, says: "I think the law thus established and laid down in Ohio prevails substantially throughout the Western States, and will ultimately prevail everywhere." It has accordingly been 1. Stephens v. Hannibal, etc., R. Co., 86 Mo. 221; s. c., 28 Am. & Eng. R. R. Cas. 538. 2. A road master of a railroad, having general superintendence of its track, while engaged in superintending and directing the removal of a wrecked train, but not in the manual work of removing a wreck, who gives a wrong signal to the engineer of a train assisting in removing the wreck, whereby a laborer en gaged in the work of removal is injured, has been held to be a vice principal. Hoke v. St. Louis, etc., R. Co., 88 Mo. 360. See also Stephens v. Hannibal, etc., R. Co. (Mo. 1888), 9 S. W. Rep. 589; McDermott v. Hannibal, etc., R. Co., 87 Mo. 285; s. c., 28 Am. & Eng. R. R. Cas.. 528. 3. 16 Neb. 254; s. c., 21 Am. & Eng. R. R. Cas 528. 4. Cleveland, etc., R. Co. v. Keary, 3 Ohio St. 201. held that a conductor of a construction train on a railroad, with a gang of laborers, is as to such men a vice principal and not a fellow-servant; also that a foreman of a company of men engaged in the business of repairing bridges, water-tanks, etc., on a line of railway, who has power to control and direct the movements of the men, will render the company liable for acts of negligence committed by him, whereby one of the men under his control is injured.2 § 58. New York It No other Court in this country has insisted so persistently as the New York Court of Appeals upon the rule which has been adopted in this work as the true test of fellow-service, viz.: in the character of the act being performed by the offending servant, or whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master. has stated again and again that this is the only true rule,3 and although its decisions may not have been always quite consistent with it, there can be no doubt that it is the doctrine to be gathered from them as an entirety, and the placing of this State in the column of those who follow the superior servant limitation is erroneous. A number of the decisions of this court, however, have been cited by text writers as supporting the limitation.* It will be profitable 1. Chicago, etc., R. Co. v. Lundstrum, 16 Neb. 254; s. c., 21 Am. & Eng. R. R. Cas. 528. 2. Sioux City, etc., R. Co. v. Smith (Neb.), 36 N. W. Rep. 285. See also Burlington, etc., R. Co. v. Crockett, 19 Neb. 138; s. c., 24 Am. & Eng. R. R. Cas. 390; Smith v. Sioux City, etc., R. Co., 15 Neb. 583; s. C., 17 Am. & Eng. R. R. Cas. 561; Sioux City & Pac. R. Co. v. Smith (Neb. 1888), 36 N. W. Rep. 285. N. Y. 549; s. c., 13 Am. Rep. 545; Crispin v. Babbitt, 81 N. Y. 516; s. c., 37 Am. Rep. 521; McCosker v. Long Island R. Co,, 84 N. Y. 77; s. c., 5 Am. & Eng. R. R. Cas. 564; Corcoran v. Holbrook, 59 N. Y. 517; s. c., 17 Am. Rep. 369; Hussey v. Coger (N. Y. 1889), 20 N. E. Rep. 556. 4. Mr. Beach, in his valuable book on Contributory Negligence, cites the following: Fuller v. Jewett, 80 N. Y. 46; s. c., 36 Am. Rep. 575; 3. Flike v. Boston & A. R. Co., 53 Booth v. Boston, etc., R. Co., 73 N. to examine these decisions briefly and see whether the Court deciding them looked to the act which the employe, for whose negligence it was sought to hold the master liable, was performing, or to his grade or station. Corcoran v. Holbrook was a case where the general agent of the proprietors of a cotton-mill was held to represent his principals in neglecting to repair certain machinery, the defects in which he was aware of. The Court held that he could not be considered a fellow-servant of an employe who was injured while using such machinery, Rapallo, J., remarking: "As to the acts which a master or principal is bound as such to perform toward his employes, if he delegates the performance of them to an agent, the agent occupies the place of the master, and the latter is deemed present, and liable for the manner in which they are performed." In Flike v. Boston & A. R. Co. an employe of a railroad company, whose duty it was to make up and dispatch trains and to employ and station brakemen thereon, sent out a train without the requisite number of brakemen, owing to which one of the train men was killed. It was held that such employe was not a fellow-servant, but an agent representing the company, whose duty it was to provide a sufficient number of brakemen, and as they had delegated this duty to one of their employes, they were liable for his negligence in the performance of it. Chief Justice Church said: "The true rule, I apprehend, is to hold the corporation liable for negligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank Y. 38; s. c., 29 Am. Rep. 97; Flike v. Boston, etc., R. Co., 53 N. Y. 549; s. c., 13 Am. Rep. 545; Crispin v. Babbitt, 81 N. Y. 516; s. c., 37 Am. Rep. 521; McCosker v. Long Island R. Co., 84 N. Y. 77; Malone v. Hathaway, 64 N. Y. 5; s. c., 21 Am. Rep. 573; Corcoran v. Holbrook, 59 N. Y. 517; s. c., 17 Am. Rep. 369. 1. 59 N. Y. 517; s. c., 17 Am. Rep. 369. 2. 53 N. Y, 549; s. c., 13 Am. Rep.. 545. or title of the agent intrusted with their performance. As to such acts the agent occupies the place of the corporation, and the latter should be deemed to be present, and consequently liable for the manner in which they are performed. If an agent employs unfit servants his fault. is that of the corporation because it occurred in the performance of the principal's duty, although only an agent himself. So in providing machinery or materials, and in the general arrangement and management of the business, he is in the discharge of the duty pertaining to the principal." Crispin v. Babbitt1 is an exceptionally strong case upon this point. Here an agent of defendant, having entire management and control of his iron works, carelessly let steam on an engine near which plaintiff was working, whereby plaintiff was injured. The trial court charged that the agent represented defendant only in respect to the duties confided to him as managing agent, but refused to charge that as to other duties he was to be regarded as a fellow-servant with the plaintiff, and left it as a question of fact. The Court of Appeals held that such refusal was error. Rapallo, J., in the course of his opinion, said: "The liability of a master does not depend upon the grade or rank of the employe whose negligence causes the injury however low the grade or rank of the employe, the master is liable for injuries caused by him to another servant, if they result from the omission of some duty of the master, which he has conf.ded to such inferior employe. * * * the act (letting on the steam) was the act of a mere operative, for which the defendant would be liable to a stranger, but not to a fellow-servant of the negligent employe." * In all of the latter, as well as the earlier decisions of this court, the principles enunciated in the cases above set forth are strictly adhered to. There have been a number of 1. 81 N. Y. 516; s. c., 37 Am. Rep. 521. 2. Malone v. Hathaway, 64 N. Y. 5; s. c., 21 Am. Rep. 573; Wright |