petent and skillful at the time, but who subsequently acquired habits of intoxication, which were known to the agent. The foreman while intoxicated directed two incompetent men to erect a scaffold, which they did so unskillfully that an employe of the railroad company, who was upon it in the discharge of his duties, was injured by its falling. He brought an action against the railroad company, and the Court of Appeals held that the railroad company was chargeable with the negligence of its agent in retaining the foreman in its employ after knowledge of his incompetency.1 It has also been held that the negligence of an agent employed by a railroad company to purchase a locomotive, is chargeable to the company, and employes using such locomotive and injured through the negligence of the agent are entitled to recover damages.

§ 122. Baggage-Master.

A baggage-master on a railroad train is usually charged with no duties which properly belong to the company. In a Colorado cases it appeared that a railroad company, in anticipation of an attack upon its trains by robbers, provided breech-loading shot-guns and ammunition for their defense. These guns were placed by the superintendent of the company in charge of the train baggage-master, with instructions to keep the guns unloaded and wrapped up in a blanket, except when passing over that portion of the road where an attack was apprehended. Upon reaching a certain station on the road, the guns were to be unpacked and charged, ready for use; and after passing the same on the return of the train, the cartridges were to be withdrawn, and the guns again wrapped up, and, upon reaching the headquarters of the company, the package

1. Laning v. New York Cent. R. Co., 49 N. Y. 521; s. c., 10 Am. Rep. 417. See also ante § 94.

2. Cumberland & P. R. Co. v.

State, 44 Md. 283.

3. Colorado Cent. R. Co. v. Martin, 5 Colo, 197; s. c., 17 Am. & Eng. R. R. Cas. 592.

was to be delivered to the station baggage-master, to be kept over night, and upon the return of the train he was to replace the package. The plaintiff, a conductor on the train, who had entire command thereof, and knew of the foregoing regulations, was injured by the accidental discharge of one of the guns when the same were being replaced on the train by the station baggage-master. The court held that the injury resulted from the negligence of a fellow-servant for which the company was not liable. But in Illinois it has been held that the company is liable for the negligence of a baggage-master in allowing a trunk to fall upon and injure a car-inspector.' This decision, however, is the result of the application of the doctrine of consociation peculiar to the Illinois and two or three other courts.2

123. Boiler-Makers and Repairers.

The railroad company which places a locomotive with a defective boiler in the hands of an engineer and fireman, is certainly liable for any injury which may happen to such employes through the negligence of the boiler-makers or repairers. This liability arises from the duty of the company to use due care in furnishing safe and suitable machinery, and the agents or employes who are charged with this duty are not to be regarded as fellow-servants, but their neglect is to be regarded as the neglect of the master. The only question is whether the defect from which the accident arose was known, or might, by the exercise of reasonable diligence, have been known to the master or his agents. But the negligence of boiler-makers or boiler repairers cannot be considered as the negligence of the

1. Indianapolis, etc., R. Co. v. Morganstern, 106 Ill. 216; s. c., 12 Am. & Eng. R. R. Cas. 228.

2. See ante chap. 5.

3. Nashville, etc., R. Co. v. Jones, 9 Heisk, (Tenn.), 27; Pennsylvania,

etc., R. Co. v. Mason, 109 Pa. St. 296; s. c., 58. Am. Rep. 722; Fuller v. Jewett, 80 N. Y. 46; s. c., 36 Am. Rep. 575.

4. See ante § 25 et seq.

company where the locomotive has not been placed in the hands of other employes for use.1

$124. Brakemen.——

If one brakeman is injured through the negligence of another brakeman, in the performance of his ordinary avocations, the current of authority is unbroken to the effect that they are fellow-servants, and the company is not liable.2 And if the negligence of a brakeman causes injury to a car-repairer, who is at work in the performance of his duty under a car standing on a repair track, the company is not liable, they being fellow-servants.3 Being directly consociated with the conductor of his train, and his subordinate in some respects, he is universally held to be his fellow-servant, in so far as his, the brakeman's, negligence causes injury to the conductor;

1. Murphy v. Boston & A. R. Co., 88 N. Y. 146; s. c., 8 Am. & Eng. R. R. Cas. 510, see ante § 26.

2. Youll v. Sioux City, etc., R. Co., 66 Iowa 346; s. c., 21 Am. & Eng. R. R. Cas. 589; Chicago, etc., R. Co. v. Rush, 84 Ill. 570; Hayes v. Western R. Corp., 3 Cush. (Mass.) 270; Atchison, etc., R. Co. v. Plunkett, 25 Kan. 188; s. c., 2 Am. & Eng. R. R. Cas. 127; Besel v. New York, etc., R. Co., 70 N. Y. 171; Nashville, etc., R. Co. v. Foster, 10 Lea (Tenn.) 351; s. c., 11 Am. & Eng. R. R. Cas. 180; Nashville, etc., R. Co. v. Wheless, 10 Lea (Tenn.) 741; s. c., 4 Am. & Eng. R. R. Cas. 633; Houston, etc., R. Co. v. Gilmore, 62 Tex. 391.

3. Besel v. New York, etc., R. Co., 70 N. Y. 171; Campbell v. Pennsylvania R. Co. (Pa.), 24 Am. & Eng. R. R. Cas. 427. In the case last cited, the Court say: "The testimony conclusively shows that plaintiff was fully cognizant of the danger to

and the same is true of the

which he was exposed, from negligently dropping in cars on the tracks where he was from time to time at work, and the precautions that were taken to avert such danger. He was as fully aware of all this as the company itself, and knew that his safety depended on the care that was exercised by his fellow-servants."

4. Wilson v. Madison, etc., R. Co. 18 Ind. 226; Thayer v. St. Louis, etc., R. Co., 22 Ind. 26; Smith v. Potter, 46 Mich. 258; s. c., 2 Am. & Eng. R. R. Cas. 140; Dow v. Kansas Pac. R. Co., 8 Kan. 642; Sherman v. Rochester, etc., R. Co., 17 N. Y. 153; 15 Barb. (N. Y.) 574; Robinson v. Houston, etc., R. Co., 46 Tex. 540; Pilkenton v. Gulf, etc., R. Co., 7 S. W. Rep. 805; Atchison, etc., R. Co. v. Moore, 29 Kan. 63; s. c., 11 Am. & Eng. R. R. Cas. 243; Smith v. Flint, etc., R. Co., 46 Mich. 258; Pease v. Chicago, etc., R. Co. (Wis.), 17 Am. & Eng.

engineer.1 If he negligently misplaces a switch and causes a collision whereby a fireman is killed, or fails to set the brakes of a train, whereby a laborer engaged in loading dirt upon such train is injured, or fails to give warning

§§ 125–6] BRIDGE REPAIRER-BRIDGE Builder.

269

to a section hand on the track of the approach of a train,1 the company is not liable. In short the usual functions of a brakeman on a railroad train do not include any of the duties which the company owes to its employes.

§ 125. Brake Repairer.—

Under the laws of Alabama a car-inspector, a brake repairer, and a brakeman are fellow-servants, and no right of action can accrue to either for an injury sustained by the negligence of any of the others.2

$126. Bridge Builder.—

4

The negligence of a bridge-builder in constructing a bridge or culvert is attributable to the railroad company, and a fireman injured by the washing out of the culvert owing to such negligence is entitled to recover damages. A single decision in Vermont, has held this to be the law,3 but the same principle has been applied in many other cases, and is undoubtedly correct. In this Vermont case Ross, J., in the course of an exceedingly able opinion, says: "The bridge-builder and road-master, while inspecting and caring for the defectively constructed culvert, were performing a duty which, as between the intestate and defendant, it was the duty of the defendant to perform. Their negligence therein was the negligence of the defendant, being the agents of the defendant for the performance of these duties; notice to them in regard to the defective construction of the stockade as affecting the safety of the culvert was notice thereof to the company." But a workman employed in the construction of a railroad bridge assumes the

Eng. R. R. Cas. 60. See also St. Louis, etc., R. Co. v. Britz, 72 Ill. 256.

& Eng. R. R. Cas. 180. But see car inspector, § 127, infra.

3. Davis v. Cent. Vermont R.

1. Connelly v. Minneapolis E. R. Co., 55 Vt. 84; s. c., 11 Am. & Eng.

Co. 38 Minn., 80.

2. Nashville, etc., R. Co. v. Foser, 10 Lea (Tenn.), 351; s. C., 11 Am.

R. R. Cas. 173.
4. See ante § 29.