but the latter class would really be the representative of the master, the representative of the railroad company; and the failure of the servant would be within the line:

of his duty." But the mere negligence of a roadmaster in misplacing a switch will not render the company liable to any engineer and fireman who are injured thereby, 2 And where the roadmaster assumes to act as a mere "boss" or foreman of a gang, and one of the laborers under his control is injured, they are fellow-servants.

But

a railroad company has been held liable for damages to an employe who, in assisting to get a car off the track, was injured by the breaking of an old worn rope used by the direction of the roadmaster superintending the job.a

§ 136. Section Boss or Section Hand.—

A section boss in charge of a squad of hands, working, altering and repairing the road, or one of his subordinates, can in no sense be regarded as a fellow-servant of employes operating trains over the road so as to exempt the company from liability for their negligence in leaving the track defective. The company delegates to these employes the

1. See ante § 29.

2. Through the negligence of a competent roadmaster of a railroad corporation a switch was misplaced, and a locomotive engine and a train of cars were turned upon a side track, the sleepers of which were rotten; the engine and train were thrown from the track, and the engineer and fireman of the engine were injured. Held, that they were fellow-servants with the roadmaster and could not maintain an action against the corporation. Walker v. Boston & M. R. Co., 128 Mass, 8; s. c., I Am. & Eng. R. R. Cas. 141.

3. Lawlor v. Androscoggin R. Co., 62 Me. 463; Brown v. Winona, etc., R. Co., 27 Minn. 162; s. c., 38 Am.

Rep. 285.

In Hoke v. St. Louis, etc., R. Co., 88 Mo. 360 (reversing s. c., 11 Mo. App. 574), a different conclusion apparently is reached. There a roadmaster of a railroad, having general superintendence of its track, while engaged in superintending and directing the removal of a wrecked train, but not in the manual work of removing a wreck, gave a wrong signal to the engineer of a train assisting in removing the wreck, whereby a laborer engaged in the work of removal is injured. It was held (erroneously, it is believed) that the company was liable.

4. Galveston, etc., R. Co. v. Delahunty, 53 Tex. 206.

performance of a duty which the law makes it incumbent on the company to perform, i. e., that of furnishing a reasonably safe track and roadbed and keeping it in repair, and it is liable for the negligent performance of this duty.' A section-boss and a section-hand are usually considered. fellow-servants, but on this point the decisions are conflicting.3

§ 137. Station Agents and Masters.

The position occupied by a station agent and the responsibility of the company for his negligence are clearly stated by the Supreme Court of Minnesota. Berry, J., says: "In the absence of controlling evidence to the contrary, an ordinary railway station agent is to be taken as having general charge of the tracks at and about his station. This

is a reasonable presumption of fact, founded upon the ordinary course of business, the common understanding of the public, and the nature and necessities of the case. Of course, the station agent is always subject to the control of his superiors, and his general charge may be limited by rules and regulations; as, in this instance, by the prohibition to place cars upon the main track to load or unload without permission from the train master, or by the assignment of some portion of what would ordinarily be his duties to some other person. The presumption spoken of appears to be supported by the rule put in evidence. As a consequence of these views it is clear that, upon the facts before stated, it was the duty of the station agent, as respects the plaintiff, to see that the main track was unobstructed and ready for his train, and that, in suffering it to be obstructed as it was, the agent was guilty of negligence through which plaintiff was injured. As respects the defendant, this negligence of the station agent is the only negligence of which plaintiff can or does complain. In this state of facts the trial court dismissed the action, being of opinion that the station agent was plaintiff's fellow-servant, and that, therefore, no charge of incompetency being made against him, the plaintiff cannot recover for the injuries resulting from his negligence. Applying the rule that, the facts being undisputed, the relation of the station master to the plaintiff is a question of law, in our opinion the station master in this case does not fall within the exception to the rule making him prima facie plaintiff's fellow-servant. Here there was no neglect to furnish or maintain suitable instrumentalities for the performance of plaintiff's proper service; and herein the case differs essentially from Drymala v. Thompson, relied upon by plaintiff. There the track itself was defective. Here no complaint is made that the track itself was improperly 1. An engineer.

* * *

2. 26 Minn. 40.

constructed or in bad order. But the complaint, in effect, is that a proper track was improperly used, or attended to by the station agent. A master is not, by reason of any absolute or personal duty on his part, liable to one employe for the improper use of proper instrumentalities by another.1 Any other doctrine would obviously lead to most astonishing consequences. Neither is the station agent's case that of an officer exercising general control or management of the defendant's business, or a branch thereof. He is simply charged with special duties as to his station, as a switchman sometime is as to a particular switch, or an engineer to a particular engine. His duty is simply that of an opera

tive."

This is the position taken by other authorities where the status of the station agent has come into question. Thus, a brakeman jumped upon a moving train, and while climbing up the ladder on the side of the car was struck by a pile of lumber near the track, which was unloaded and piled there by the direction of the station agent. In an action against the company for damages, the Supreme Court of Rhode Island2 held that the station agent was the brakeman's fellow-servant who was not entitled to recover for the former's negligence. And, though by the rules of a railroad company its station agent is held responsible for the safety of switches, and is expressly required to see that the main track is kept clear and unobstructed for the passage of trains, and to be out at the station and know that everything is right when trains are passing, yet such station agent has been held to be a fellow-servant of a brakeman on a train of the company passing his station, and the company is not liable to such brakeman for inju

1. Citing, Floyd v. Sugden, 134 Mass. 563; Summersell v. Fish, 117 Mass. 312; Griffiths v. Gidlow, 3 H. & N. 648; Gibson v. Pacific R. Co., 46 Mo. 163; Wood, M. & Serv. § 371;

Brown v. Winona & St. P. R. Co.,

27 Minn. 162; Heine v. Chicago, etc., R. Co. 58 Wis. 525.

2. Gaffney v. New York & N. E. R. Co., 15 R. I. 456; s. c., 31 Am. & Eng. R. R. Cas. 265.

ries from a collision near such station caused by the negligence of the agent.1

roneous.

The position taken by these cases, is, it is believed, erIf there is anything well established about the law of fellow-servants as far as it concerns railroad companies, it is that negligence in keeping the company's track and roadbed in a safe condition and suitable for the passage of trains, is negligence, which, as between the company and an employe injured thereby, is chargeable upon the company. This rule has been applied almost without exception where roadmasters, section-hands, track-repairers, etc., have been derelict in the performance of their duties, and in consequence of which some train-hand has been killed or injured. If a station agent is charged with this duty of the company of seeing that the tracks and switches. around the station are in a safe condition, is there any good and sufficient reason why the same rule should not be applied in case of his negligence in this respect? A track is just as much a defective and just as dangerous for the passage of trains if a car is standing where it ought not to stand and where it is not expected, as if the ties were rotten or the rails loose, or a rock or other obstruction is left upon the track, and a railroad company should be held liable in the one case as well as in the other.4

3

1. Toner v. Chicago, etc., R. Co., track for its employes who run its 69 Wis. 188.

2. Ante § 29.

3. Ante §§ 29, 135, 136; infra§ 139. 4. These observations are supported by the dissenting opinion of Taylor, J., in the case of Toner v. Chicago, etc., R. Co., 69 Wis. 188. He said: "The proposition is not disputed, but it is insisted that permitting a car to obstruct a track is not such a defect in the road as to fix negligence on the company if not removed. If it be the duty of the company to maintain a safe

trains, can it make any difference whether a rock, a tree, or a broken bridge, a broken rail, or a structure maintained too near the track, or a railroad car driven upon the track by the force of the winds, causes the dangerous condition of the road? In either case it becomes the duty of the company to remove the obstruction or repair the track as soon as it can be ascertained by the exercise of reasonable diligence. And in such case the knowledge of the agent of the company, whose duty