and other cases have been similarly decided.1 The second class of cases are those which consider a foreman, as such, no more a representative of the master than are his subordinates; that his giving commands and orders which the subordinates are bound to obey is merely an incident of his supervisory power, and does not render the master liable for his negligence in exercising that power; that the negligence of a foreman of a gang as to workmen under his control is only the negligence of the master when it arises out of the performance or nonperformance of some act which the master has impliedly contracted should be performed with due care, such as the furnishing proper machinery and appliances, keeping them in repair, making and promulgating proper rules, selecting competent co-servants, etc. This is the rule adopted by the great majority of the courts of this country, and is consistent with the criterion of fellow-service adopted in this work.3 Under this rule it has been held that to constitute a servant of a railroad company vice principal, so as to hold the company liable for his negligence toward anEdison Machine Works, 28 Fed. Rep. 228. Id. 1. Atlanta Cotton Factory v. Speer, 69 Ga. 137; Patton v. Western N. Car. R. Co., 96 N. Car. 455; s. c., 31 Am. & Eng. R. R. Cas. 298; Couch v. Charlotte, C. & A. R. Co., 22 S. Car. 557; s. c., 28 Am. & Eng. R. R. Cas. 331; Louisville, etc., R. Co. v. Bowles 9 Heisk (Tenn.), 866: Stephens v. Hannibal, etc., R. Co., 86 Mo. 221; s. c., 28 Am. & Eng. R. R. Cas. 538; Stephens v. Hannibal, etc,, R. Co. (Mo.), 9 S. W. Rep. 589; McDermott v. Hannibal, etc., R. Co., 87 Mo. 285; s. c., 28 Am. & Eng. R. R. Cas. 528. 2. Cook v. Hannibal & St. Jo. R. Co., 63 Mo. 397; Hannibal, etc., R. Co. v. Fox, 31 Kan. 587; s. c., 15 Am. & Eng. R. R. Cas. 325: Chica go & N. W. R. Co. v. Bayfield, 37 3. See ante § 23. 3 other servant, it is not sufficient to show that the duties of the former were to direct and control assistant brakemen in the service of the company at a particular yard, and that the latter was one of the assistant brakemen at that yard; that the foreman of a gang of men engaged in constructing a shed, who works together with them and has no authority to throw away old scaffolding and obtain new without special orders, is a fellow-servant with other men in his gang, and the company is not responsible, accordingly, for an injury to one of these occasioned by a defect in a board taken and received by such foreman for the erection of a scaffold;2 that a "road-master" is a fellow-servant of a section hand, and the latter cannot recover for the negligence of the former; that the negligence of the foreman of a gang engaged in repairing a railroad track in failing to see that the crossings were cleaned and kept in repair, whereby one of his subordinates was injured, was not the negligence of the company; that the foreman of a gang of section men engaged in the discharge of his ordinary duties in the course of his employment is a fellow-servant with them;5 that the failure of a foreman to remove a flag and place it in front of the cars upon the repair track, so as to prevent any other train from coupling on to such car while such signal was displayed, as required by a rule of the company, whereby a car repairer was injured, does not charge the company with his negligence; and that the negligence of a "gang-boss" in overseeing the lowering of an engine in the repair shops 1. Rains v. St. Louis, etc., R. Co., 71 Mo. 164; s. c., 5 Am. & Eng. R. R. Cas. 610. 2. Willis v. Oregon R. & N. Co., 11 Ore. 257; s. c., 17 Am. & Eng. R. R. Cas. 539. 3. Lawlor v. Androscoggin R. Co., 62 Me. 463; s. c., 16 Am. Rep. 492; Brown v. Winona, etc., R. Co., 27 Minn. 162. 4. Brick v. Rochester, etc., R. Co., 98 N. Y. 211; s. c., 21 Am. & Eng. R. R. Cas. 605. 5. Olson v. St. Paul, etc., R. Co., 38 Minn. 117; s. c., 33 Am. & Eng. R. R. Cas. 386, 6. Peterson v. Chicago, etc., R. Co. (Mich.), 34 N. W. Rep. 260. of a railroad company, whereby one of his subordinates is injured, is not the negligence of the company.1 § 133. General Manager or Superintendent.— The general manager or superintendent of a railroad company, clothed with the power and authority of the company's board of directors, in regard to the management of trains and all arrangements connected therewith, is the immediate representative and corporate executive officer; and his negligent or improper order, which causes an injury to an employe, renders the company liable.* The negligence of such an officer as to the company's track or appliances, whereby an employe is injured, is also the negligence of the company. Thus, a conductor employed by a railroad company notified the superintendent of the railroad of the dangerous condition of a switch. thereon; the superintendent promised to repair same, but directed the conductor to use it, observing care; while carefully using it an accident was caused by the switch, and the conductor injured. It was held that notice to the superintendent was notice to the company, which was liable for the injury. But if the superintendent or manager has not general authority, but merely supervises a certain branch of the business, a mere foreman, he stands in the same position as a foreman. Thus, one S. was sent in charge of a wrecking train to 1. McBride v. Union Pac. R. Co., (Wyo. 1889), 21 Pac. Rep. 687. 2. Washburn v. Nashville & C. R. Co., 3 Head (Tenn.), 638; s. c., 75 Am. Dec. 784; Phillips v. Chicago, etc., R. Co., 64 Wis. 475; s. c., 23 Am. & Eng. R. R. Cas. 453. Plaintiff, while rolling wheels down a track of defendant, so inclined that the wheels would roll of their own momentum, was injured by loose wheels rolling down behind him. Held, that evidence that the super get a car on a track. He intendent in charge had been warned by one of the men to station a man at the top to check the wheels, in order to prevent any injury of this kind, was admissible to show negli. gence on the part of defendant. Savannah, etc., R. Co. v. Goss (Ga. 1888), 5 S. E. Rep. 777. 3. Patterson v. Pittsburg & C. R. Co., 76 Pa. St. 389. Compare Mobile, etc., R. Co. v. Smith, 59 Ala. 245. superintended this branch of the business of the defendant railroad company, under the orders of the person in charge of the shops and yards. S. negligently gave an improper order and a workman under his command was killed. The General Term of the New York Supreme Court held that S. and the workman were fellow-servants and the company was not liable. And in the absence of evidence to show that the general traffic manager of a railway company occupies, towards the company, a position superior to that of fellow-servant with a milesman employed by the same company, they are to be taken to be fellow-servants, and the company is not liable for injuries caused to the milesman by the negligence of the traffic manager.2 § 134. Master Mechanic.— Where a railroad.company have placed their engines and other machinery under the immediate charge, control, and direction of a master mechanic, and have furnished him with adequate materials and resources for their repair, his negligence in respect to such engines and machinery is the negligence of the company. He stands in their place and has delegated to him the performance of one of the primary duties which the company owes to their employes, viz. that of overseeing and repairing machinery and appliances. It has accordingly been held that a division master mechanic is not a fellow-servant of a locomotive fireman, and a railroad company is liable for the death of the latter caused by the parting of the locomotive and the tender, owing to their difference in height, after the master mechanic had been notified of the defect.3 And a brake 1. Beilfus v. New York, etc., R. Co., 29 Hun (N. Y.), 556. decision squarely overrules the case of Columbus & I. R. Co. v. Arnold, 2. Conway v. Belfast & N. C. R. 31 Ind. 174, where it was held that Co., 11 Ir. R. C. L. 345. a master machinist, who has the immediate charge, control, and direction of the engines and other machinery of a railroad company and 3. Krueger v. Louisville, N. A. & C. R. Co., 111 Ind. 51; s. c., 31 Am. & Eng. R. R. Cas. 329. This man injured through the negligence of a master mechanic as to machinery has an action against the company,1 and so has an engineer.2 In a Texas case3 a plumber employed in a railway company's repair shops, who was injured through the negligence of a master mechanic, was held entitled to recover. $135. Roadmaster. A railway roadmaster occupies much the same position towards the company's track, roadbed, etc., as the master mechanic does towards the engines and machinery; and if a train hand is injured through the roadmaster's negligence in keeping the track in proper condition, an action will lie against the company.* 4 "A railroad company is liable," say the Supreme Court of Kansas,5 "to any one of its servants operating its road for the negligence of any other one of its servants whose duty it was to keep the road in good condition, and who culpably failed to perform such duty, or to give proper warning; for in such case the two classes of servants would not be fellow-servants or co-employes, the repairs thereof, and the control and direction of the engineers and firemen on the trains, is a fellow-servant of such a fireman. It is a curious fact, however, that the opinion in the Krueger case, supra, makes no mention of this case, although the opinion in both cases was written by the same judge. But in Indiana Car Co. v. Parker, 100 Ind. 181, the Court say that the Arnold case is an extreme one, and "perhaps (1) carries the doctrine beyond its limits." 1. Gottlieb v. New York, etc., R. Co., 100 N. Y. 462; s. c., 24 Am. & Eng R. R. Cas. 421; Cooper v. Pittsburg, etc., R. Co., 24 W. Va. 37. 2. Hough v. Texas & Pac. R. Co., 100 U. S. 213; Ford v. Fitchburg R. Co., 110 Mass. 240; s. C., 14 Am. Rep. 598. The case of Hard v. Vermont Cent. R. Co., 32 Vt. 473, announces a different rule, but this decision was practically overruled in Davis v. Central Vermont R. Co., 55 Vt. 84; s. c., 11 Am. & Eng. R. R. Cas. 173. 3. Douglas v. Texas-Mexican R. Co. 63 Tex. 564. 4. Houston, etc., R. Co. v. Dunham, 49 Tex. 181; Atchison etc., R. Co. v. Moore, 29 Kan. 632; S. C., II Am. & Eng. R. R. Cas. 243; Davis v. Cent. Vermont R. Co., 55 Vt. 84. Compare Mobile, etc., R. Co. v. Smith, 59 Ala. 245. |