does its own express business.1 But in the territory of Arizona it has been held that a teamster who hauls ties in the construction of a railroad is not consociated with the engine-driver of a train on which the workmen ride to dinner, so as to defeat his recovery against the common master for injuries caused by negligence of said engine-driver.2 In an Indiana case3 a workman employed by a railroad company to work in a tunnel was ordered by the superintendent of the work, under threat of dismissal, to get on a freight train for transportation to another tunnel, and in doing so he was violently cast on the ground and injured by the negligence of the engineer in starting the train. The court held that the company is not liable. § 130. Engine Repairers. In Pennsylvania it has been decided that where an engineer and fireman were killed by the explosion of a locotive boiler which had been recently and insufficiently repaired in the shops of the railroad company, the company is liable, although the repairers and the deceased were under the same superintendent.* Gordon, J., remarked: 66 Nor are those agents who are charged with the business of supplying the necessary machinery, to be regarded as fellow-servants, but rather as charged with the duty which the master owes to the servant, and the neglect of such agent is to be regarded as the neglect of the master. So is the employer equally chargeable, whether the failure is found in the original tool or machine, or in a subsequent bert, 46 Mich. 176; s. c., 2 Am. & Eng. R. R. Cas. 230; East Tenn., etc., R. Co. v. Gurley, 12 Lea (Tenn.), 46; s. c., 17 Am. & Eng. R. R. Cas. 568; Bradley v. Nashville, etc., R. Co., 14 Lea (Tenn.), 374. 1. Baltimore & O. R. Co. v. McKenzie, 81 Va. 71; 24 Am. & Eng. R. R. Cas. 395. 2. Hobson v. New Mexico & A. R. Co. (Ariz.), 28 Am. & Eng. R. R. Cas. 360. 3. Capper v. Louisville, etc., R. Co., 103 Ind. 305; s. c., 21 Am. & Eng. R. R. Cas. 525. 4. Pennsylvania, etc., R. Co. v. Mason, 109 Pa. St. 296; s. c., 58 Am. Rep. 722. want of repair by which it becomes dangerous. There can, indeed, be no essential difference in these particulars, and 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. $131. Firemen.— A fireman is one of the subordinate employes engaged in operating a railroad company's train. He is associated with, and directly under the command of the engineer; and the duties which he is called upon to perform do not include any of the personal duties which the company owes to its employes. It has accordingly been held that if a brakeman is injured through the negligence of the fireman no action will lie against the company. And in a Wisconsin case a railroad track-walker sued the company for personal injuries by the fall of a lump of coal from a tender, on which it was carelessly piled up. The court held that he could not recover for the reason that the fireman whose negligence in piling up the coal caused the injury was the fellow-servant of the trackman." $132. Foremen. In a previous chapter we examined the decisions of those States which adhere to what has been denominated the "superior servant limitation," and have seen that, in most of the eight or ten States wherein it is accepted, to impute the negligence of the superior to the master he must be more than a mere foreman to oversee a number of workmen.5 For if it were true that when among fel 1. See ante, § 32, et seq. 2. Kersey v. Kansas City, etc., R. Co., 79 Mo. 362; s. c., 17 Am. & Eng. R. R. Cas. 638; Greenwold v. Marquette, etc., R. Co., 49 Mich. 197; s. c., 8 Am. & Eng. R. R. Cas. 133; Galveston, etc., R. Co. v. Faber, 63 Tex. 347. 3. Schultz v. Chicago & N. W. R. Co., 67 Wis. 616; s. c., 58 Am. Rep. 881. 4. Chap. IV. 5. Ante § 70. low-workmen one has authority to direct and control the work of the others (as in all cases a general superintendence must be vested in some one, in order that the efforts of each may be in harmony and tend to one practical result, where many are employed), this person becomes a representative of the common master, and imposes on him a personal responsibility for his representative's misconduct or want of proper care and caution in conducting the business, the subordination necessary among numerous workingmen would practically neutralize the rule itself.1 As a foreman, then, is not, by virtue of his superiority merely, a representative of the common employer, except in a very 1. Smith, C. J., in Kirk v. Atlanta & C. A. R. Co., 94 N. Car. 625; s. c., 25 Am. & Eng. R. R. Cas. 507. 2. Peterson v. Whitebreast, etc., Co., 50 Iowa, 673; s. c., 32 Am. Rep. 143; Houser v. Chicago, etc., R. Co., 60 Iowa, 230; s. c., 46 Am. Rep. 65; Hofnagle v. New York Cent. R. Co., 55 N. Y. 608; Loughlin v. State, 105 N. Y. 159; Murphy v. Boston & Albany R. Co., 59 How. Pr. (N. Y.) 197; Hanrathy v. Northern Cent. R. Co., 46 Md. 280; Zeigler v. Day, 123 Mass. 152; Cumberland Coal & Iron Co. v. Scally, 27 Md. 589; Hogan v. Central Pac. R. Co., 49 Cal. 128; Willis v. Oregon R. & N. Co., 11 Oregon, 257; s. c., 17 Am. & Eng. R. R. Cas. 559; Brown v. Winona & St. P. R. Co.,, 27 Minn. 162; Olson v. St. Paul, etc., R. Co., 38 Minn. 117; s. c., 33 Am. & Eng. R. R. Cas. 356; Brick v. Rochester, etc., R. Co., 98 N. Y. 211; s. c., 21 Am. & Eng. R. R. Cas. 605; Hart v. New York Floating Dry Dock Co., 48 N. Y. Super. Ct. 460; Albro v. Agawam, etc., Co., 6 Cush. (Mass.) 75; Chicago, etc., R. Co. v. Simmons, 11 Ill. App. 147; Lawler v. Androscoggin, etc., R. Co., 62 Me. 463; s. c., 16 Am. Rep. 492; Daubert v. Pickel, 4 Mo. App. 590; Rains 7. St. Louis, etc., R. Co., 71 Mo. 164; s. c., 5 Am. & Eng. R. R. Cas. 610; Barrington v. Delaware, etc., R. Co., 19 Hun (N. Y.) 216; Scott v. Sweeny, 34 Hun (N. Y.) 292; Malone v. Hathaway, 64 N. Y. 5; s. c., 21 Am. Rep. 570; Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 433; Weger v. Pennsylvania R. Co., 55 Pa. St. 460; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246; s. c., 42 Am. Rep. 543; Fones v. Phillips, 39 Ark. 17; Hoth v. Peters, 55 Wis. 405; Peschel v. Chicago, etc., R. Co., 62 Wis. 338; s. c., 17 Am. & Eng. R. R. Cas. 545; Doughty v. Penobscot, etc., Co., 76 Me. 143; Conley v. Portland R. Co., 78 Me. 217; Berea, etc., Co. v. Kraft, 31 Ohio St. 287; s. c., 27 Am. Rep. 510; Peterson v. Chicago, etc., R. Co. (Mich.), 34 N. W. Rep. 260; Capper v. Louisville, etc., R. Co., 103 Ind. 305; s. c., 21 Am. & Eng. R. R. Cas. 525; Indiana Car Co. v. Parker, 100 Ind. 191; Drinkout v. Eagle Machine Works, 90 Ind. 423; Brazil, etc., Coal Co. v. Cain, 98 Ind. 282; Wright v. New York, etc., R. Co., 25 N. Y. 562; Crispin v. Babbitt, 81 N. Y. 516; s. few jurisdictions, the cases resolve themselves into two classes: First, those holding that in order to constitute him a representative or agent of the employer he must have conferred upon him authority to take charge and control of a gang of men in carrying on some particular branch of the master's business, and to govern and direct the movements of the men under his charge with respect to that branch of business; that in such case all orders and commands given by him within the scope of his authority are, in law, the commands of the master, and the fact that he has a superior, standing between him and the company, makes no difference. Decisions affirming this principle have held that the foreman of a railroad wrecking crew is not a fellow-servant of a workman in his crew, and for an accident happening to the latter, through the negligence of the former, the company is liable; that a railroad company is responsible for an injury to one of a gang of laborers in its yards, caused by the foreman negligently giving an improper command;2 that the negligence of a foreman of a set of hands, whose business it was to repair freight cars while standing on the track, in failing to use reasonable care to protect one of his subordinates while under a car repairing it, was the negligence of the company, for which it was liable; that c., 37 Am. Rep. 521; McDermott v. Atlanta & C. A. R. Co., 94 N. Car. 625; s. c., 25 Am. & Eng. R. R. Cas. 507; Brodeur v. Valley Falls Co. (R. I. 1889), 17 Atl. Rep. 54. 1. Wabash, etc., R. Co. v. Hawk, 121 Ill. 259; s. c,, 31 Am. & Eng. R. R. Cas. 306. 2. Chicago & A. R. Co. v. May, 108 Ill. 288; s. c., 15 Am. & Eng. R. R. Cas. 320. 3. Lake Shore, etc., R. Co. v. Lavalley, 36 Ohio St. 221; s. c., 5 Am. & Eng. R. R. Cas. 549. And see Hannibal, etc., R. Co. v. Fox, 31 Kan. 587; s. c., 15 Am. & Eng. R. R. Cas. 325; Luebke v. Chicago, the negligence of a foreman of a section gang in failing to carry out the rules of the company and protect his men while at work was the negligence of the company;1 that a person having control of a railroad company's timberyard, and employing and discharging men, is a vice principal, and the person upon whom the care and management of the yard devolves in his absence is to be regarded as a temporary vice-principal, and his negligence, causing injury to a yard employe, is not the negligence of a co-employe;2 that "where a servant in the employ of a railroad company is injured through the negligence of a foreman, who has control and superior authority over him with respect to the business in which they are employed, and who has authority to employ and discharge men, and give directions as to their movements and their work, then such foreman is to be considered as a superior servant,' and the company will be held responsible for the injury "; 3 that "where a master employs one servant and requires him to work under the orders of another, and gives the latter power to dismiss the former at his pleasure, the latter is a superior servant or vice principal, and stands in the place of the master when acting in the scope of his powers"; 4 etc., R. Co., 59 Wis. 127; s. c., 15 Am. & Eng. R. R. Cas. 183; Moore v. Wabash, etc., R. Co., 85 Mo. 588. But compare Fraker v. St. Paul, etc., R. Co., 32 Minn. 54; s. c., 15 Am. & Eng. R. R. Cas. 256; Kirk v. Atlanta, etc., R. Co., 94 N. Car. 625; s. c., 25 Am. & Eng. R. R. Cas. 507. 1. Criswell v. Pittsburg, etc., R. Co, 30 W. Va. 798; s. c., 33 Am. & Eng. R. R. Cas. 233. 2. Baldwin v. St. Louis, etc., R. Co. (Iowa, 1888), 39 N. W. Rep. 507. 3. Smith v. Sioux City, etc., R. Co., 15 Neb. 583; s. c., 17 Am. & Eng. R. R. Cas. 561. 4. Miller v. Union Pac. R. Co. (U. S. C. C. Colo.), 17 Fed. Rep. 67. Where a foreman of common laborers is employed in handling and moving heavy parts of machinery, having full control of them for that purpose, and hiring and discharging them subject to the approval of the superintendent of a corporation engaged in the manufacture of dynamo engines, the corporation is liable for an injury to one of the laborers who was engaged with six others in moving the bed-plate of an engine, weighing about 1,500 pounds, where the foreman called the others away, and left the plaintiff to hold it alone, when it turned over on him and broke a bone of one of his legs, and otherwise injured him. Mason v. |