trol." This definition is almost useless unless we are told what is meant by the words "same common pursuit" and "same general control." Judge Thompson, in his work on Negligence,2 announces as a general rule, that "all who serve the same master, work under the same control, derive authority and compensation from the same common source, are engaged in the same general business, though it may be in different grades, or departments of it, are fellow-servants, who take the risk of each others negligence." This rule is more specific than Judge Cooley's, but it is unsatisfactory for the same reasons. Mr. Wood says: "The true test of fellow service is the community in that which is the test of service-which is, subjection to the control and direction by the same common master in the same common pursuit." Here again, "the same common pursuit" are the undefined, yet indispensable words of the rule. Mr. Beach in his work on Contributory Negligence, devotes considerable space to the discussion of this question, and gives the following definition or description: "All servants in the employ of the same master, subject to the same general control, paid from a common fund, and engaged in promoting or accomplishing the same common object, are to be held fellow-servants in a common employment.' Like the other authors he deals exclusively with undefined general terms. It will be seen that these rules are all stated so broadly that they are too general to be of much, if any, service. Most of the rules laid down in the decisions are of the same character. In Massachusetts it is said that "the rule of law, that a servant cannot maintain an action against his master for an injury caused by the fault or negligence of a fellowservant, is not confined to the case of two servants working in company, or having opportunity to control or in4. Beach Contrib. Neg. p. 338,

"14

1. Cooley on Torts, p. 541, note 1.

2. 2 Thomp. on Neg. p. 1026, § 31. § 115. 3. 3 Woods Ry. Law, § 338.

fluence the conduct of each other, but extends to every case in which the two, deriving their authority and their compensation from the same source, are engaged in the same business, though in different departments of duty; and it makes no difference that the servant whose negligence causes the injury is a sub-manager or foreman, of higher grade or greater authority than the plaintiff."1

In Maine it is said "persons who are employed under the same master, derive authority and compensation from the same common source, and are engaged in the same general business, although one is a foreman of the work and the other a common laborer, are fellow-servants, and take the risk of each other's negligence, the principal not being liable to the injured servant therefor. An exception to the rule exists if the master has delegated to the foreman or superintendent the care and management of the entire business, or a distinct department of it, the situation being such that the superior servant is charged with the performance of duties towards the inferior servant which the law imposes upon the master."

And in Texas Judge Thompson's rule is substantially reiterated: "Where two servants are employed by the same master, labor under the same control, derive their authority and receive their compensation from a common source, and are engaged in the same business, though in different departments of the common service, they are fellow-servants."

In Bartonshill Coal Co. v. Reid1, Lord Cranworth stated the rule as follows: "To constitute fellow-laborers within the meaning of the doctrine which protects the master from responsibility for the injuries sustained by

1. Holden v. Fitchburg R. Co., 129 Mass. 268; s. c. 2 Am. & Eng. R. R. Cas. 94. 2. Doughty v. Penobscot Log R. Co. v. Rider, 62 Tex. 267. Driving Co., 76 Me. 143. 4. 3 Macqueen 266,

3. Texas & P. R. Co. v. Harrington, 62 Tex. 597; s. c. 21 Am. & Eng. R. R. Cas. 571; Houston, etc.,

one servant through the wrongful act or carelessness of another, it is not necessary that the servant causing and the servant sustaining the injury shall both be engaged in precisely the same or even similar acts. Thus, the driver and guard of a stage coach, the steersman and rowers of a boat, the man who draws the red hot iron from the forge and those who hammer it into shape, the engineer and switchman, the man who lets the miners down into, and who afterwards brings them up from the mine, and the miners themselves-all these are fellow-servants and collaborateurs within the meaning of the doctrine in question."

A

13. Elements Entering into the Rule.-Common Employment.— Before attempting to deduce any general rule by which to determine what employes occupy the relation of fellow-servants to each other, it will be useful to examine the various elements and conditions which go to make up the rules set out in the preceding section, as well as other elements or conditions not there stated, but which certain courts have insisted upon. The first and most prominent of these is that of common employment. It may almost be said that the solution of the entire question depends upon the meaning which is given to these words. prominent text writer1 says: "As soon as the rule became recognized law, the courts were called upon to say what classes of cases the term included. Having established the rule, they were asked to apply it, and as case after case arose, it became necessary to determine whether it should have a wide or a narrow application. On the one hand it might be held to include only those employes who worked side by side in a similar occupation, as masons building a wall, or carpenters a house, or weavers attending adjacent looms; and on the other hand, it might be so extended as to include all employes of every

1. Beach, Contrib. Neg., § 115.

grade who are hired by the same person, as all the hands in a factory, or all the employes in a railway corporation; and between the two extremes would be found many various degrees, where the rule might be held to include or exclude occupations more or less dissimiliar. The chief embarrassment seems to have been to settle whether it should be strictly confined to persons engaged in similiar occupations, or should include any and every occupation, however essentially unlike. Some courts have done one thing, and some another, and decisions abound excluding and including almost every mentionable occupation." It is believed, however, that the question of what constitutes common employment is not, per se, a fundamental one. The words are of such comprehensive import that, unless they are defined by making a practical application, it is merely stating the rule anew, and in other words, to explain them. If the rule given infra is the correct one, it is useless to speculate upon the meaning of these words, as the question can be solved without it.1

1. It has been said that the most approved test of a common employment is whether the injured servant can be said to have apprehended the possibility of injury from another servant while engaged in the service for which he hires. It is not necessary that both be engaged in the same or even similar acts, so long as the risk of injury from the one is so much a natural and necessary consequence of the employment which the other accepts that it must be included in the risks which have to be considered in his wages. Underhill on Torts, 52. C

In Illinois it is said that “a proper test of the existence of this relation may be to inquire whether the negligence of the one is likely to inflict injury on the other." Valtez v. Ohio

& M. R. Co., 85 Ill. 500.

There have been many cases in the English Courts, the decision of which turned upon the meaning to be attached to the phrase "common employment" and the tendency of the English decisions has been to give a very wide signification to the

term. Here are some instances: a chief engineer and a third engineer on board a steamer; a laborer employed in loading bricks and a deputy foreman of plate layers; one of a gang of scaffolders and the foreman of the gang; a carpenter and joiner employed in painting an engine shed near a turn-table and the company's servants engaged in managing traffic, who negligently turned a carriage on the turn-table and upset a ladder, whereby the

It is almost universally admitted that the rule, that the common master of several servants, employed in the same service, is not responsible for an injury to one of said servants caused by the negligence of another, while engaged in a common employment, has no application to a case of common employment alone, without proof of a common master. It applies only where the action is brought for an injury to a servant or agent against the principal by whom such servant was himself employed.1 The rule is clearly a just one.