mentioned, we think that nothing can be clearer than that it is the duty of a railroad company to provide a suitable and safe track over which its locomotive engineers and other servants of that class are required to run its trains, and that negligence on the part of those to whom it commits such duty is the negligence of the company."

$63. Tennessee.—

The limitation prevails in this State to its fullest extent. "The principle upon which our rule is based," say the Court," to wit, that the master will be liable for injuries resulting to one servant from the negligence of another servant, who is the immediate superior of the first, is based not upon the idea of the relative rank of the two servants, or the general superiority of the one in position, intelligence, or skill, or in the wages received, but upon the ground that the one is placed under the order and direction of the other, and required to submit to and obey such order in the performance of his duties, so that the inferior is placed in the position of servant to the superior. In such cases the superior is held to represent the master." The question presented in most of the decisions of this court, then, is whether the offending servant and the injured servant occupied towards each other the relation of "superior" and "inferior" in the sense indicated. It has accordingly been held that if a section-hand is injured by the negligence of the section-boss the company is liable;2 that the negligence of a railway engineer, whereby a brakeman is injured, is the negligence of the company, and that a telegraph operator and a conductor are not fellow-ser

1. Nashville, etc., R. Co. v. Wheeler, 10 Lea (Tenn.) 741; s. c., 4 Am. & Eng. R. R. Cas. 633, holding that an engineer is not a "superior" of a brakeman.

2. Louisville, etc., R. Co. v. Bowles, 9 Heisk (Tenn.) 866; s. c., I Alb. L. J. 119.

3. East Tennessee, etc., R. Co. v. Collins, 85 Tenn. (1 Pickle) 227.

vants.1 In short, where the negligent servant is the superior, permanently or temporarily, of the injured one, having authority to direct or control the latter, the general rule does not apply.2

§ 64. Texas.

The rule laid down by this court, on the subject under discussion, is found in Robinson v. Houston & Texas Cent. R. Co. There, Judge Moore, speaking as the organ of the Court, said: "It is urged that the general rule which holds that a servant cannot recover damages from the master for an injury sustained by reason of the negligence of a fellow-servant is not applicable in this case because the injury to appellant resulted from the negligence of the conductor for the time being, to whose direction and control appellant was subjected. For a time, as says Judge Cooley,1

1. East Tenn., etc., R. Co. v. De Armond (Tenn.), 5 S. W. Rep. 600. 2. Nashville v. Carroll, 6 Heisk (Tenn.) 347; East Tenn., etc., R. Co. v. De Armond (Tenn.), 5 S. W. Rep. 600; Haynes v. East Tenn. R. Co., 3 Cold. (Tenn.) 222.

3. 46 Tex. 550; followed in Dallas v. Gulf, etc., R. Co., 61 Tex. 196; s. c., 21 Am. & Eng. R. R. Cas. 575.

4. So. Law Rev. April 1876, p. 110. "Since the article of Judge Cooley, above referred to, was published, that learned jurist and author has devoted much time to the study of this question, and treats it quite fully in his work on Torts, published as late as the year 1880. In this work, pp. 542-545, speaking of injuries resulting from the negligence of fellow-servants, he announces his views in the following language: 'The rule which exempts the master from responsibility for injuries to his servants, proceeding from risks inci

dental to his employment, extends to cases where the injury results from the negligence of other servants in the same employment. Whatever controversy there may have been for a time on this point may now be said, by an overwhelming weight of authority, to have been thoroughly quieted and settled. Some disputes still remain which concern the proper limits of the doctrine, and what, and how many, are the exceptional cases. In some quarters a strong disposition has been manifested to hold the rule not applicable to the case of a servant who, at the time of the injury, was under the general direction and control of another who was intrusted with the duties of a higher grade, and from whose negligence the injury resulted. But it cannot be dis-. puted that the negligence of a servant of one grade is as much one of the risks of the business as the neg

a strong disposition was manifested in some of the courts to hold to this view. We, however, agree with him that the negligence of a servant of one grade is as much one of the risks of the business as the negligence of another; and it seems impossible, therefore, to hold that the servant contracts to run the risks of negligent acts or omissions on the part of one class of servants, and not those of another class." While this statement of the law is quite general, it certainly negatives the idea that this court is one of those favoring the superior servant doctrine. On the contrary, its decisions wherein the master has been held liable, are entirely consistent with the rule above laid down, and can be harmonized with the criterion that it is the act performed by the offending servant, and not his station or grade which should be looked at in determining whether the master is liable for his negligence. Thus, it has been held that a master who delegates his power to another, to employ, discharge, and control servants in a given work, is responsible to a servant for an injury received by him through the incompetency of a servant so employed, when such incompetency was known to the person so authorized to make the employment, and was not known, and by the exercise

ligence of a servant of any other; and it seems impossible, therefore, to hold that the servant contracts to run the risks of negligent acts and omissions on the part of one class of servants, and not those of another class. Nor on grounds of public policy could this distinction be admitted, whether we consider the consequences to the parties to the relation exclusively, or those which affect the public, who in their dealings with the employer may be subjected to risks. Sound policy seems to require that the law should make it for the interest of the servant that

he should take care not only that he

be not negligent himself, but also that any negligence of others in the same employment be properly guarded against by him, so far as he may find it reasonably practicable, and be reported to his employer, if neediu. And in this regard it can make little difference what is the grade of the servant who is found to be negligent, except as superior authority may render the negligence more dangerous, and consequently increase at least the moral responsibility of any other servant, who, being aware of the negligence, should fail to report it.'"

of due care could not have been known to the person injured.1 And a yard foreman whose duty it was to see that the engines of a railway company were in good repair and failed to do so, whereby an employe was injured, has been held to represent the company.2 A stock and fuel agent of a railroad company who sustained injury from a defective track, has been permitted to maintain an action against the company, the Court holding that the fact that the company's servants caused the track to be defective, having nothing to do with the case3. In another case1 a plumber employed in a railroad company's repair shops was directed by the master mechanic, to whose orders he was subject, to hold a piece of timber between a tender and an approaching engine to prevent a direct collision, and so holding he asked the master mechanic if that was right, to which the latter replied, “Yes, that will do." The engine striking the timber higher up than the buffer of the tender, brought the timber violently against the plumber and severely injured him. The Court held that the company was liable. On the other hand, the general rule exempting the master from liability has been applied in numerous cases so as to entirely discountenance the limitation.5

1. Texas Mexican R. Co. v. Whitmore, 58 Tex. 277; s. c., 11 Am. & Eng. R. R. Cas. 195.

2. Houston, etc., R. Co. v. Marcelles, 59 Tex. 334; s. c., 12 Am. & Eng. R. R. Cas. 231.

63 Tex. 77; s. c., 51 Am. Rep. 637; Dallas v. Gulf, etc., R. Co., 61 Tex. 196; s. c., 21 Am. & Eng. R. R. Cas. 575; Pilkenton v. Gulf, etc., R. Co. (Tex.), 7 S. W. Rep. 805; Houston, etc. R. Co. v. Willie, 53 Tex. 318;

3. Houston, etc. R. Co. v. Rider, Robinson v. Houston, etc., R. Co., 62 Tex. 267.

46 Tex. 540; Hamilton v. Galves

4. Douglas v. Texas Mex. R. Co., ton, etc., R. Co., 54 Tex. 556; Hous

63 Tex. 564.

5 Galveston, etc., R. Co. v. Faber, 63 Tex. 344; Texas, etc.. R. Co. v. Harrington, 62 Tex. 597; s. c., 21 Am. & Eng. R. R. Cas. 571; Houston, etc., R. Co. v. Rider, 62. Tex. 267; Mayton v. Texas & Pac. R. Co.,

ton. etc., R. Co. v. Dunham, 49 Tex. 181; Houston, etc., R. Co. v. McNamara, 59 Tex. 255; East Line, etc., R. Co. v. Scott, 68 Tex. 694; Houston, etc., R. Co. v. Gilmore, 62 Tex. 391.

§ 65. Vermont.—

Justice Ross of the Supreme Court of this State, in an opinion1 which is certainly entitled to rank as one of the leading authorities on the subject, disposes of the superior servant limitation as follows: "Some courts have held that the master is responsible for the negligence of a servant who had the right to command and did command an under servant, who was injured in the performance of such command or order negligently given. This distinction, however, is not now generally recognized, nor would it seem to be a proper application of the general principles which all agree apply to the relation of master and servant in regard to injuries sustained by the latter in performing the service. The principal diversity in the latter decisions. arises in determining the extent of the liability of the master for the negligence of his servant, which causes injury to another servant, while performing a duty which, by the rela tion of master and servant, rests upon the master." The italicized portion of the above clearly shows the criterion of fellow-service which was in the mind of the writer. It is more definitely stated in the latter portion of the opinion: "When the case of Hard v. Vermont & Canada R. Co.2 was decided, the liability of the master was held to be dependent upon whether the servant, whose negligence caused the injury, and the servant injured were fellow-servants in a common employment or work. Making this the test for determining the master's liability, the reasoning and conclusions of the late Chief Justice Pierpont are unanswerable. But this test, while determinative of a great number of cases, as we have seen, has been abandoned both in England and in this country, and in lieu thereof the master's liability has been made to rest upon whether the negligence arose in the performance of a duty

1. Davis v. Vermont Cent. R. Co., 55 Vt. 84; s. c., 11 Am. & Eng.

R. R. Cas. 173.

2. 32 Vt. 473.