and fireman; brakeman and fireman; engineer, fireman brakeman and shovelers; and two engineers of two engines attached to the same train have been held to be fellow-servants." And the employees on different trains are held to be fellow-servants.10

A baggageman and engineer; Pullman porter, conductor and engineer; and the train crew, and those who repair and inspect the cars and engines, are held not to be fellow-servants.' So a train dispatcher is not a fellowservant with those on the trains whose movements he governs. But a station agent, or local telegraph operator, has been held to be a fellow-servant with those in the train service in some jurisdictions,3 while in others the reverse is held. A like conflict of authority exists as to whether a section foreman is a fellow-servant with the

4

Cooley on Torts (2nd ed.), 1078; Meyer v. Ill. Cent. Ry. Co., 177 Ill. 591; Grattis v. Ry. Co., 153 Mo. 380; Congrave v. So. Pac. R. Co., 88 Cal. 360; Dysart v. Railroad Co., 145 Mo. 83; Louisville, etc., Ry. Co. v. Petty, 67 Miss. 255; So. Ry. Co. v. Clifford, 110 Ky. 727; Parrish v. Railroad Co., 28 Fla. 251.

10 Relyea v. Railroad Co., 112 Mo. 86; Oakes v. Mase, 165 U. S. 363; Denver, etc., R. Co., v. Sipes, 23 Colo. 226.

1Chicago, etc., R. Co. v. Swan, 176 Ill. 424; Jones v. St. Louis, etc., Ry. Co., 125 Mo. 666; Marsh v. Lehigh Valley R. Co., 206 Pa. St. 558; 78 Tex. 294; 122 Ill. 369.

2McCune v. California, etc., Co., 66 Cal. 302; Hankins v. Railroad Co., 142 N. Y. 416; 205 Pa. St. 432.

No. Pac. Ry. Co. v. Dixon, 194 U. S. 338; Reiser v. Pa. Co., 152 Pa. St. 38.

486 Tenn. 73; 40 W. Va. 436.

men under him;" and whether trainmen and track repairers are fellow-servants."

7

The following cases are cited in Cooley on Torts, as illustrations of the fellow-servant rule in cases outside of the railway service: "A cotton mill was in charge of a superintendent, with foremen over the different rooms or departments of the work. The assistant foreman of the machine shop, while crossing the yard, was killed by a barrel negligently thrown from the fourth floor by the foreman of the slushing room. The latter was held to be a fellow-servant and the defendant not liable. A corporation was engaged in the construction of asphalt pavements with a plant at Pittsburgh. The work at this point was in charge of a general superintendent, who supervised and directed all the operations at this point. There were four gangs of men, one being at the works where the asphalt was prepared, which was in charge of a foreman. But the superintendent visited the works two or three times a day and supervised the work. The foreman hired and discharged the men and directed them where and how to work. The foreman was held to be a fellow-servant of the men under him and the company was held not liable for an injury to one of them by

5That he is, see Sullivan v. Railroad Co., 62 Conn. 209; Olson v. St. Paul, etc., Ry. Co., 38 Minn. 117; Justice v. Pa. Co., 130 Ind. 321; that he is not, see 110 Ky. 342; 121 Ill. 259; 108 Mo. 322.

"That they are fellow servants: 72 Tex. 609; 91 Va. 193; 166 U. S. 399. That they are not: 135 Mich. 95; 109 Mo. 350; 48 Neb. 553; 113 Tenn. 266.

"Cooley on Torts (2nd ed.), 1083, 1084.

8 Brodeur v. Valley Falls Co., 16 R. I. 448.

reason of his being ordered by the foreman into an unsafe place. But where a foreman has entire charge and control of a work or plant and of the men there employed, and himself plans and directs the work and hires and discharges the men, he has been held to be a viceprincipal, for whose negligence the employer is liable.10 And where a foreman of whatever grade is discharging one of the positive duties of the master towards his servants, he represents the master in such matter and in respect thereto is not a fellow-servant of those under him."1

In general all employees of the same master engaged in the erection of a building are fellow-servants, though they may be doing different lines of work, as carpentry, masonry, and the like. And so are all servants employed by the master on any particular work or enterprise, although there may be gradations of rank, or different lines of work, or they may be divided into different squads or gangs.3

"Casey v. Pa. Asphalt Pav. Co., 198 Pa. St. 348.

10 Richmond Granite Co. v. Bailey, 92 Va. 554; Cunningham v. Ry. Co., 4 Utah, 206; Baldwin v. Ry. Co., 75 Ia. 297. 1Nixon v. Selby Smelting Co., 102 Cal. 458; Consolidated Coal Co. v. Wombacher, 134 Ill. 57.

2 Enright v. Oliver, 69 N. J. L. 357; Olmstead v. Raleigh, 130 N. C. 243.

3 Ryan v. McCully, 123 Mo. 626; World's Columbian Expo. v. Lehigh, 196 Ill. 612; Buck v. N. J. Zinc Co., 204 Pa. St. 132. Workmen of different contractors or masters, though working on the same job or building, are not fellow servants. John Spry L. Co. v. Duggan, 182 Ill. 218; Sanford v. Standard Oil Co., 118 N. Y. 571; McCafferty v. Dock Co., 11 Ohio C. C. 457;

On the other hand, in the following cases it is held the employees named are not fellow servants: A sawyer having charge of saw and machinery for handling logs, and the man working with him. One engaged to repair a mill and those working in the mill." The gas inspector or tester of a mine and the miners. One who inspects rafted logs for pikes and those who put the logs on the carriage to be sawed."

Sec. 401-63. SAME SUBJECT GENERAL RULE OF LIABILITY OF MASTER FOR ACTS OF INDEPENDENT CONTRACTOR.A man may give over the doing of any lawful work to another so exclusively and fully, that this other becomes an independent principal or contractor, and his employees are in nowise connected or related through such contractor with the master, as to give any right of action to them against the master for the contractor's negligence, or to third persons for the negligence of the contractor or his servants. To do this, the contract must be for something that may be lawfully done; and something that in its necessary or probable effect will not injure others; be without negligence as regards the person selected to carry it out; who should be entrusted with the full con

Quebec S. S. Co. v. Merchant, 133 U. S. 375; Hanna v. Granger, 18 R. I. 507.

4 Evans v. La. Lumber Co., 111 La. 534.

5 Hearn v. Quillan, 94 Md. 39; 19 Wash. 537. To the contrary, see, 148 Pa. St. 177.

6 Coster v. Pac. Coast Co., 26 Wash. 138; Gowen v. Bush, 76 Fed. 349.

7 Covington Saw Mill, etc., Co. v. Clarke, 116 Ky. 461.

trol of the work without reservation as respects the manner of doing it, or the persons to be employed, leaving the person for whom the work is to be done an interest only in the ultimate result of the undertaking. But it is to be remembered that certain duties resting upon the owner of property cannot be delegated so as to relieve him from responsibility for negligence in regard thereto, and that the ownership of property carries the burden of seeing that it shall be so managed as not to become a menace or nuisance to others. So where an owner of property left a contract for the removal of walls that had been damaged by fire, it was said to be such a duty to do the work carefully, and it could not be

8 Cooley on Torts, 646, 647; Shearm & Redf. on Neg. Sec. 73; Evans v. Murphy, 87 Md. 498; Clark v. Fry. 8 Ohio St. 358; Curtis v. Kiley, 153 Mass. 123; 49 Ohio St. 69; Cuff v. Railroad Co., 35 N. J. 17; Lawrence v. Shipman, 39 Conn. 586. In the last case it is said: "1. If a contractor faithfully performs his contract, and the third person is injured by the contractor in the course of its due performance, or by its result, the employer is liable, for he causes the precise act to be done which occasions the injury; but for the negligence of the contractor not done under the contract, but in violation of it, the employer is in general not liable. . . 2. If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible on the same principle as in the last case, for I cause acts to be done which naturally expose others to injury... 3. If I employ as contractor a person incompetent or untrustworthy, I may be liable for injuries done to third persons by his carelessness in the execution of his contract. . . 4. The employer may be guilty of personal neglect, connecting itself with the negligence of the contractor in such manner as to render both liable."