case1 it was held that a servant of a contractor for repairing a railroad bridge, injured by a passing train, through the negligence of the company's servants, may recover from the railroad company. And in an Iowa case the Court remarked: "The deceased, although a subcontractor for the building of bridges, and therefore indirectly in the employ of the defendants, yet his duties were so entirely in another department, and wholly disconnected with operating the road, as that his relation to the employes managing the train which ran over him cannot be, in any proper sense, said to be that of a co-servant.” In Mississippi it has been held that a laborer employed by a contractor for grading a railroad, and a locomotive engineer in the employ and under the control of the company in the same work, are not fellow-servants.3 In New Jersey, however, this question was presented in a recent case and a different conclusion was reached. The facts were these: The defendant, owning a sawmill, employed master machinists to repair the waterwheel, and the machinists sent the plaintiff, with others, to do the work. It was understood between the workmen and the defendant that the mill should be run when they were not working on the

1. Young v. New York Cent. R. Co., 30 Barb (N. Y.) 229.

ropes and hoppets, with an engineer to work the engine (who was em

2. Donaldson v. Mississippi, etc., ployed and paid by the company), R. Co., 18 Iowa 280.

the engine and engineer to be under the control of W. One of the men employed and paid by W., while working at the bottom of the shaft,

3. Louisville, etc., R. Co., v. Conroy, 63 Miss. 562; s. c. 56 Am. Rep. 835. 4. Ewan v. Lippincott, 47 N. J. L. was injured by the negligence of the (18 Vroom) 192.

A company having begun sinking a shaft in their colliery, for which purpose they had fixed an engine near the mouth of the shaft, agreed with W. to do the sinking and excavating at a certain price per yard, W. to find all labor, the company to provide and place at the disposal of W. the necessary engine power,

engineer. Held, that though the engineer remained the general servant of the company, yet being under the orders and control of W. at the time of the accident, he was acting as the servant of W., and not of the company, which was therefore not liable for his negligence. Rourke v. White Moss Colliery Co., 2 C. P. D. 205; 46 L. J., C. P. 283.

wheel. While they were so at work, the defendant's engineer negligently started the wheel, injuring the plaintiff. The Court held that the engineer and the plaintiff were fellow-servants, and that the defendant was not liable. Reed, J., writing the opinion, said: "An examination of the cases in which the character of a servant has been considered will, however, disclose the fact that there is no legal test of service by which in all cases it can be de-. termined whether an employee is a servant. He may be a servant for one purpose and a volunteer or contractor for a different purpose. He may be the servant of one master viewed in one aspect, and at the same time be considered as the servant of another person for the purposes of carrying out a legal policy." This is also the doctrine of the Massachusetts Court,2 and is adhered to in an Illinois decision. 3

It is sometimes a difficult matter to determine who are contractors under the rule above set forth. This is illustrated by an English case, where the defendants were brewers, having upon the Thames a wharf, where coals

1. Concerning this last remark, Mr. McDonnell, in his well-digested book on this branch of the law, speaking of the observation of Baron Parke that a man cannot be the servant of several masters at the same time, thus writes: "A cannot be the servant of B and C in the sense that he is bound to obey both. He may, however, be the servant of both in such a sense that he may be prosecuted for embezzlement by B or C as a clerk or servant; that B or C may be liable to strangers for his torts; and that while the servant of B he cannot claim damages against C for the acts of C's servants, inasmuch as he is in law their fellow-servant." McDonnell on Master and Servant

46.

2. Johnson v. City of Boston, 118 Mass. 114.

3. Illinois Cent. R. Co. v. Cox, 21 Ill. 20; s. c. 71 Am. Dec. 148.

In this case it was held that where A contracts to deliver wood to a railroad company, the company to furnish the equipment to move it, the men on the train to obey the orders of the contractor, one of the servants employed by him to load wood upon the car having been thrown off and killed, the parties were aii servants of the company, and that no recovery could be had by the administratrix for his death. See also Rourke v. White Moss Collier Co., L. R. 1 C. P. Div. 556.

were discharged to be used in their business. The plaintiff was hired by A. to assist in unloading a barge at the wharf of the defendants. The plaintiff and A., with other men, formed a gang, the members of which were paid by the defendants, at the rate of 15. 9d. for every ton of coals discharged; one of the men was to receive from the defendant the money due for unloading the barge and to . distribute payment amongst them; the defendants alone had power to dismiss the plaintiff. Whilst the plaintiff was engaged in unloading the barge, a servant of the defendants, who was engaged in moving some barrels, negligently let one of them slip upon an upraised flap, which fell and caused the plaintiff injury. The plaintiff had frequently been at the spot when the barrels were being moved. The Court held, that the defendants were not liable to compensate the plaintiff for the injury sustained by him; for A. held the position of a foreman and not of a contractor, and the plaintiff was servant to the defendants, and he was engaged in a common employment with the servant by whose negligence the injury happened, and there was no concealed danger.1

The servants of a subcontractor are usually not considered as fellow-servants of the contractor's employes.2 Thus, one who is employed by a dealer in lumber, to deliver lumber upon an unfinished bridge to subcontractors who have undertaken to build the wooden portion thereof, has been held entitled to recover damages against the contractors who have undertaken to build the entire superstructure, for an injury sustained by him while so delivering lumber, through a defect in the ironwork of that portion of the bridge which has been completed.3 In the case of Wiggett v. Fox, however, the defendants, who

4

1. Charles v. Taylor, 3 C. P. D. 492; 38 L. T. 773.

2. Murphy v. Carali, 3 H. & N. 462; Murray v. Currie L. R., 6 C. P.

24.

3. Curley v. Harris, 11 Allen,. (Mass.) 113.

4. 11 Exch. 832.

had contracted with the Crystal Palace Company to erect a tower, made a subcontract with M. and four others to do by piece particular portions of the work. The workmen of the subcontractor were paid weekly by the defendants, according to the time which they worked. The subcontractor received from the defendants' foreman directions as to the execution of the piecework. The persons who contracted with the defendants to do piecework signed printed regulations by which they were not at liberty to leave their employment till after they had completed their work, and had given a week's notice. A man who was employed by a subcontractor was killed by a workman in the service of the defendants. The jury found that the deceased was the servant of the contractor. The Court remarked that the subcontractor and all his servants must be considered, for this purpose, the servants of defendants whilst engaged in doing work, each devoting his attention to the completion of the whole work, and working together for that purpose.

18. Same.-Servants of Different Railway Companies.Arrangements are often made between different railway companies, having lines which connect, to run trains over each other's track; but whatever effect an agreement between the several companies owning connecting lines may have upon the parties thereto, it cannot have the effect of making those 'who were employed and paid wages by either of the contracting parties, the co-employes of the agents and workmen of the other parties, or make the others liable either severally or jointly for any loss or damage caused by the neglect of any one of them, even where the agreement is silent in this respect.1

1. In an action to recover damages for killing plaintiff's intestate through the negligence of defendant's servants, it appeared that the

intestate was a servant of another railroad company, and while at work in their pit as an ashman, was run over by an engine of defendant's

Thus, where an injury to an employe of one of said companies occurs on the road of another, and is caused by the imperfect condition of the road, the principle that every employe assumes the risk of the negligence of his co-employes, is not applicable to him. And where the servant of one railroad company, running its trains over the track of another, is injured by reason of the negligence of the servants of such other company, he is not debarred from bringing his action against the company employing him. The servant occasioning the injury is not to be regarded as a fellow-servant.2 But in Illinois it has been decided that where an engine driver of one company running upon the road of another, was injured in a collision occasioned by the negligence of the servants of such other company, he was not entitled to recover damages from the company which had permission it was decided that a railroad comfrom the other company to use the track. Held, that intestate and defendant's engineer and fireman were not fellow-servants so as to relieve defendant from liability for their negligence. Sullivan v. Tioga R. Co., (N. Y. 1889) 20 N. East Rep. 569.

1. Philadelphia, etc., R. Co. v. State, 58 Md. 372; s. c. 10 Am. & Eng. R. R. Cas. 792.

An employe of the P. Company was killed in an accident while the train of the former was on the track of the A. road. Held, that deceased was not an employe of the A. Company. Augusta, etc., R. Co. v. Killian, 79 Ga. 234; s. c. 4 S. E. Rep. 165.

2. Catawissa R. Co. v. Armstrong, 49 Pa. St. 186; Sawyer v. Rutland & B. R. Co., 27 Vt. 370.

To the same general effect are other authorities. In Stetler v. Chicago & N. W. R. Co., 46 Wis. 497,

pany, running its trains on the tracks. of another company, was liable to its employees for an injury occasioned by a defect in the track, and the doctrine of "fellow-servants" was not mentioned, the court evidently considering it to have no application.

In Carroll v. Minnesota V. R. Co., 13 Minn. 30, the defendant and a steamboat company were operating under an arrangement by which defendant was to carry passengers and freight between St. Paul and Belle Plain and the steamboat company was to carry them between Belle Plain and Mankato. Each sold tickets over the route of the other. Held, that the servants of one of the companies were not fellow-servants to those of the other so as to prevent the servants of one recovering from the other for injuries by the negligence of its ser

vants.