ployer from liability to a servant for the negligence of a fellow servant rests upon the implied undertaking of the servant to assume the risks, necessarily incident to the service in which he engages, including the risks of the negligence of his fellow-servant in discharging duties which the employer cannot be expected to discharge personally. There is no reason why a third person, with whom there is no such implied undertaking, should be entitled to immunity from the results of the negligence of his servants, merely because the injured party is also an employe, who in the course of his employment is compelled to come in contact with the servants of such third party. In Massachusetts, however, where the fellow-servant rule is strictly adhered to, it is held that one who employs master mechanics to do certain work under his agents' general direction, each to furnish the men, tools and tackle necessary for his work, is not, in the absence of negligence in their selection, liable for an injury resulting to a servant employed by one master mechanic through the negligence of another in furnishing imperfect tackle, or in the manner of using it.1 So, in an action against a city to recover for personal injuries sustained by the plaintiff from the falling in, through the negligence of servants of the city, of the sides of a sewer which the city was constructing, and in which the plaintiff was at the time engaged in drilling a rock, the plaintiff offered to prove that he was in the employ of a man who employed a large number of men, and who, in his business of drilling and The rule has been held not applicable to a case where a servant of a tenant has been injured by the negligence of a servant of the owner of a building, employed in the same room to manage an engine working an elevator upon which the injury occurred. Stewart v. Harvard College, 12 Allen (Mass.) 58. A drover transported over a rail road upon a pass for the purpose of taking care of his stock, is a passenger for hire, and not a fellow-servant with the employes of the company. Carroll v. Missouri Pac. R. Co., 88 Mo. 239, 26 Am. & Eng. R. R. Cas. 268. 1. Harkins v. Standard Sugar Refinery, 122 Mass. 400. blasting rocks for all persons who employed him, sent his workmen from place to place to do work; that the plaintiff with other servants of his employer was sent to drill and blast rock in the bottom of a sewer under the superintendence of a fellow workman, who received the same pay as the others; that the workmen were to drill and blast the rock in the sewer in the places pointed out by the foreman of the sewer department of the city in charge of the whole work; that all the work except the drilling and blasting was done by servants of the city; that the whole work, including the drilling and blasting, was under the general supervision of the superintendent of sewers of the city, and under the direct charge of a foreman of the sewer department; that the city paid the plaintiff's employer a certain sum per day for each of his men for the time they were actually employed, and the employer paid his men a less sum each per day, and directed them where to go and what to do, retaining control of them so far that he could change them from one place of work to another and dismiss them. The Court held that the plaintiff was a fellow-servant with the servants of the city whose negligence caused the injury, and that the action could not be maintained.1 It is the injured party and the party causing the injury who must have a common master. Therefore, damages resulting to a servant from an injury to his wife, occasioned by the negligence of his fellow-servants, may be recovered by him from his master.2 1. Johnson v. City of Boston, 118 Mass. 114; see also Wiggett v. Fox, 11 Exch. 832; Ewan v. Lippincott, 47 N. J. L. 192; see "contractors and sub-contractors,” § 17, infra. 2. Gannon v. Housatonic R. Co., 112 Mass. 234. In this case the Court observed: "It is said that the general rule which exempts the mas ter from liability to his servant has a tendency to insure the safety of the public by increasing his care and fidelity, and that the public policy of the rule is equally applicable here. But if it be conceded that this is the true foundation of the rule, its bearing is too remote to influence the result to which we come in this case." § 15. Same-Master's own Torts—Partners and Receivers.— The principle that a servant sustaining an injury from the negligence of a fellow-servant, while engaged in the common employment, cannot recover in an action against the common master, does not exempt from liability a master who himself takes part in the servant's work and while so doing injures the servant through negligence.1 This has sometimes been spoken of as an exception to the rule, but in reality it is not an exception at all, but a direct application of the most general rule-that a tortfeasor must answer for his acts. If the master is a mem Evidence showing that the wife was working for her husband, who was keeping a boarding car and boarding the company's men, under an agreement that the company should retain their board, and pay it to the husband. Held, that the wife and the engineer of the train were not fellow-servants. Brown v. Sullivan, (Tex.) 10 S. W. Rep. 288. 1. Ashworth v. Stanwix, 3 El. & Bl. 701; 7 Jur. N. S. 467; 30 L. J. Q. B. 183; Mellors v. Shaw, 30 L. J. Q. B. 333; Lorentz v. Robinson, 61 Md. 64; Busch v. Buffalo, etc., R. Co., 29 Hun. (N. Y.) 112; Ryan v. Fowler, 24 N. Y. 410; Leonard v. Collins, 70 N. Y. 90; Grand Trunk R. Co. v. Cummings, 106 U. S. 700.. In Scott v. Craig, 34 Jur. 401, a servant received injuries from the use of a defective scaffold, which was crected by a competent foreman and workmen under the supervision of the master. The Court held that as the master himself superintended the work, the negligence was his and not that of a co-servant, and the fact that the work was done under the direction of his foreman, did not relieve him from liability. In Ashworth v. Stanwix, 3 El. & Bl. 701, Compton, J., said: "The doctrine that a servant on entering the service of an employer takes on himself, as a risk incidental to the service, the chance of injury arising from the negligence of fellow-servants engaged in the common employment, has no application to the case of the negligence of an employer. Though the chance of injury from the negligence of fellowservants may be supposed to enter into the calculation of a fellowservant in undertaking the service, it would be too much to say that the risk of danger from the negligence of a master, when engaged with him in their common work, enters in like manner into his speculation. From a master he is entitled to expect the care and attention which the superior position, and presumable sense of duty of the latter ought to command. The relation of master and servant does not the less subsist because, by some arrangement between the joint masters, one of them takes on himself the functions of a workman. It is a fallacy to suppose that on that account the character of master is converted into that of fellow laborer." §15] MASTER'S TORTS.—PARTNERS AND RECEIVERS. 33 ber of a partnership by whom the servant is employed, and the work in which he takes part is within the scope of the common undertaking of the partnership, his copartners are jointly liable with him for the injury thus caused to the servant by his negligence.1 Thus it has been held that where the boiler of one steamer near another exploded, thereby injuring a deck hand on the other, the fellow-servant rule did not apply, though the defendant was a partner in the business of running both boats.2 The liability of a receiver of an insolvent corporation, in his official capacity for an injury to his servant, sustained, while in his employment, by reason of the negligence of the receiver or the negligence of his agents, is usually determined by the same rules and principles that are applicable to persons or corporations.3 1. Ashworth v. Stanwix, 3 El. & Bl. 701; 7 Jur. N. S. 467. an action for torts and injuries caused by his own negligence, de 2. Connoly v. Davidson, 15 Minn. fault or misconduct, (Klein v. Jewett, 519. In Zeigler v. Day, 123 Mass. 152, an action by a laborer against his employer to recover for personal injuries caused by the falling in of the sides of a sewer in which the laborer was at the time at work, there was evidence that the employer was a contractor for the construction of the sewer; that the laborer was at work at the time of the accident under the direction of a superintendent who had charge of the work and was admitted to be skillful and competent, and who was to receive, as compensation for his service, one-half the profits. Held that the superintendent was a fellow-servant of the laborer. 26 N. J. Eq. [11 C. E. Gr.] 474), or the negligence of the persons employed by him in operating the road, Ohio & M. R. Co. v. Davis, 23 Ind. 533; Mearas Adm'r v. Holbrook, 20 Ohio St. 137; s. c. 5 Am. Rep., 633; Kinney v. Crocker, 18 Wis. 74; Kennedy v. Indianapolis C. & L. R. Co., 2 Flip. (U. S.) 704. See Lamphear v. Buckingham, 33 Conn. 237; Ballou v. Farnum, 91 Mass. (9 Allen) 47; Barter v. Wheeler, 49 N. H. 9; Little v. Dusenberry, 46 N. J. L. (17 Vr.) 614; s. c. 25 Am. & Eng. R. R. Cas. 632; Davis v. Duncan, 19 Fed. Rep. 477. It has been said that "it accords with sound principle and reason, that a receiver exercising the franchises of a railroad company, should be held amenable in his official 3. Mearas v. Holbrook, 20 Ohio St. 137. A receiver of a railway is liable in capacity in the same rules of lia $16. Same.-Negligence of Master and Fellow Servant Combined.— If the negligence of the master contributes to the injury to the servant, it must necessarily become an immediate cause of the injury, and it is no defense that another was likewise guilty of wrong. In Grand Trunk R. Co. v. Cummings, the United States Supreme Court were called upon to determine the validity of the following instruction: "That if Noyes [the person claimed to be a co-servant] was negligent, and if the company was also wanting in ordinary care and prudence in discharging their duties, and such want of ordinary care contributed to produce the injury, and the plaintiff did not know of such want of ordinary care and prudence, the defendant would be liable; that if two of those causes contributed, the company would be liable; that the mere negligence of Noyes of itself does not exonerate them, if one of their own faults contributes." The Court held that there was no error in the instruction, Chief Justice Waite saying: "It was in effect that if the negligence of the company contributed, that is to say, had a share in producing the injury, the company was liable, even though the negligence of a fel bility that are applicable to the company while it exercises the same power of operating the road." Mearas Adm'r v. Holbrook, 20 Ohio St. 137; s. c. 5 Am. Rep. 633. See Ohio &. M. Co. v. Davis, 23 Ind. 553; Nichols v. Smith, 115 Mass. 332; Paige v. Smith, 99 Mass. 395; Potter v. Bunnell, 20 Ohio St. 159; Ex parte Brown, 15 S. Car. 518; Erwin v. Davenport, 9 Heisk (Tenn.) 44; Blumenthal v. Brainerd, 38 Vt. 402; Pope's Case, 30 Fed. Rep. 169; Winbourn's Case, 30 Fed. Rep. 167. In Michigan it has been questioned whether an action for injuries can be maintained against the receiver of a railroad company in whose employment the party was at the time of the injury. See Smith v. Flint & P. M. R. Co., 46 Mich. 258; s. c. 41 Am. Rep. 161. In Iowa the matter has been regulated by the Code, and an action may be maintained against the receiver of a railroad, appointed either by the Courts of the State, or a Circuit Court of the United States, by an employee of such railroad, who has been injured by reason of the negligence of a co-employee or fellowservant. Central Trust Co. V. Sloan, 65 Iowa, 655; Sloan v. Central Iowa R. Co., 62 Iowa, 728. 1. 106 U. S. 700; s. c. II Am. & Eng. R. R. Cas. 254. |