§ 70. General Remarks.-Application of the Limitation.

From the foregoing review of the cases in the States whose decisions have been cited by judges and writers to support the limitation, it will be seen that there are eight, or perhaps ten, States in this country, and the Federal Supreme Court, where the doctrine can be said to prevail, either to its furthest extent, as in Ohio and Kentucky, or to a modified degree. It will also be seen that, except in those States adopting the ultra rule that where the master sees fit to place one of his employes under the direction and control of another the relation of fellow-servants does not exist and the latter is the representative of the master, the doctrine is very vague and undefined, and there can be no exact principles evolved out of it. The dividing line to be crossed, which takes an employe out of his class and changes him into a vice principal who represents the superior, and bears his relation to the other employes, so that his negligence becomes the negligence of the superior towards the latter, cannot be determined so as to apply to all the jurisdictions wherein the limitation is recognized. Except in three or four of the States, perhaps, to impute the negligence of such a servant to the master, he must be more than a mere foreman to oversee a gang, direct their work under the supervision of the master, see that they perform their duty, and, in case of dereliction, report

Cent. & H. R. Co., 33 Fed. Rep. 801; Robertson v. Cornelson, 34 Fed. Rep. 716; Central Trust Co. v. Wabash, etc., R. Co. 34 Fed. Rep. 616; Van Avery v. Union Pac. R. Co., 35 Fed. Rep. 40. In Mealman v. Union Pac. R. Co., 37 Fed. Rep. 189; Brewer, J., said: "I think it is necessary not merely that there should be subordination, but that the party in control should have such departmental control-such an extended authority

that the Court may justly say that

he represents the principal, that he is a vice principal; the general superintendent, the superintendent of a division, superintendent of roads and bridges, any party who has a department under his control; and the Supreme Court say that a conductor stands in this category." See also language of the same judge to same effect in Howard v. Denver, etc., R. Co., 26 Fed. Rep, 837; s. c., 24 Am. & Eng. R. R. Cas. 448.

them.1 As a general rule he must have the management of a department of the master's business, such as the right to employ hands and discharge them, direct their labor, purchase material, etc. He is in this respect considered as an agent, clothed with some of the authority of the master, to whom the laborers are put in subordination, and to whom they owe obedience. Although such a one may work with the laborer in furthering the common business of the master, he is held to be not a fellow-servant in the sense of that term as used by the courts, because he repre sents the master in his authority to direct, control, or manage the business, or some portion or department of it. Because, in applying this rule the same results are frequently, and in perhaps the majority of cases, reached, it should not be confused with what has been accepted herein as the true criterion of fellow-service. There is a wide difference between them. The one deals almost entirely with the station, rank, or authority of the two servants. The other ignores this altogether, and looks only at the nature of the act out of which the injury arose. It pronounces as a rule of law that where the master owes an obligation to the servant, the duty must be positively and fairly performed, either by the master acting in persona or by his agent. The only issue, then, which arises is whether the act which was negligently performed or omitted was one of the duties which the master owed to the servant under the circumstances. As these duties are well understood and have often been defined, the application of the rule is comparatively without difficulty. The doctrine of the superior servant limitation, on the other hand, being princi

1. Kirk v. Atlanta & C. A. R. Co., 94 N. Car. 625; s. c., 25 Am. & Eng. R. R. Cas. 507; Peterson v. Whitebreast, etc., Co., 50 Iowa, 673; s. c., 32 Am. Rep. 143; Chicago, etc., R. Co. v. Simmons, 11 Ill. App. 147; Berea Stone Co. v. Kraft, 31 Ohio

St. 287; s. c., 27 Am. Rep. 510; Sioux City, etc., R. Co. v. Smith, 22 Neb. 775; Louisville, etc., R. Co. v. Lahn (Tenn.), 6 S. W. Rep. 663; New York, etc., R. Co. v. Bell (Pa.), 28 Am. & Eng. R. R. Cas. 338.

pally an erroneous deduction from the language of the old reports wherein certain servants are called vice principals, is founded upon false theories, and its systematic and consistent application is impossible. It cannot be a correct

rule of law.

871. Stipulation by Master for Exemption from Liability for Torts of Superior Servant.

In a recent Ohio case1 it was held that the liability of railroad companies for injuries caused to their servants by the carelessness of other employes placed in authority and control over them, is founded upon considerations of public policy, and it is not competent for a railroad company to stipulate with its employes at the time, and as part of their contract of employment, that such liability shall not attach to it."The policy of our law," said Chief Justice Owen, "being well settled, it only remains for us to inquire whether railroad companies may ignore or contravene that policy by private compact with their employes, stipulating that they shall not be held to a liability for the negligence of their servants which public policy demands should attach to them. The answer is obvious. Such liability is not created for the protection of the employes simply, but has its reason aud foundation in a public necessity and policy which should not be asked to yield or surrender to mere private interests and agreements."

1. Railway Co. v. Spangler, 44 Ohio St. 471; s. c., 28 Am. & Eng. R. R. Cas. 319. Compare Western,

etc., R. Co. v. Bishop, 50 Ga. 465. And see infra, § 108.

CHAPTER V.

THE DIFFERENT DEPARTMENT LIMITATION.

§ 72. The Doctrine Stated.
73. Origin of the Doctrine.
74. Reasons for the Doctrine.
75. Application of the Rule.

76. Questions of Fact for the Jury.
77. The Doctrine an Exceptional one.

$72. The Doctrine Stated.—

Owing to the fact that the division of labor has led to such growth in modern industrial enterprises, causing them to be divided into distinct and separate departments, some of the courts of this country contend for the following limitation: That in order to constitute servants of the same master fellow-servants it is not enough that they were engaged in doing parts of some work or in the promotion of some enterprise carried on by the master not requiring co-operation, nor bringing the servants together, or into such personal relations that they could have exercised an influence, one upon the other, promotive of proper precaution in respect of their mutual safety, but it is essential either that they were actually co-operating at the time of the injury, in the particular business in hand, or that their usual duties should bring them into habitual consociation, so that such proper caution would be likely to result. This different department distinction has been

called the doctrine of Illinois, Georgia,2 Kentucky, and Tennessee. It has been recognized in all of these States, as

The doctrine was first judicially recognized in Indiana in the year 1854. A bridge carpenter was injured through the negligence of a railroad engineer. The Court, in deciding that the company was liable for the injury, said: "If the bridge builder of the company be regarded as a co-servant of the engineer, within the meaning of the Priestly and