In such a way as to cut up the railroad business into different

departments and exclude from the fellow-servant rule em-

ployees working in such different departments. This attempt

has been successful in a few states,* but it is generally held

that the railway employee assumes the risk of negligence in

any department and that the whole business must be regarded

as constituting one enterprise.^ The general rule, outside of

the states where the " different department " doctrine pre-

vails, is that servants are engaged in the same common

service whenever each might reasonably foresee, when engag-

ing in the employment, that the negligence of the others is a

risk to be encountered in the course of such service. This

brings the test fairly within the reason of the fellow-servant

rule, namely, that a servant undertakes the ordinary risks of

the service including the negligence of other servants. The

"different department" doctrine is a logical extension of

another reason given for the fellow-servant rule, namely, that

1 Osborne v. Knox, 68 Me. 49.

2 Church V. Chicago, &c. R., 50 Minn. 218. Ante, В§ 240.

8 Post, В§ 274.

* Chicago, &c. R. v. Moranda, 93 111. 302 ; Dixon v. Chicago, &c. R.,

109 Mo. 413 ; Atchison, &c. R. v. ]\IcKee, 37 Kans. 592 ; Union Pac. R. v.

Erickson, 41 Neb. 1; Armstrong r. Oregon, &c. R., 8 Utah, 420.

* Northern Pac. R. r. Ilanibly, 154 U. S. 349, and cases there cited:

Wright V. New York Central R. Co., 25 N. Y. 562 j Bjodeur v. Valley

Falls Co., 16 R. I. 448.

FOR TORTS TO SERVANT. 337

a servant is in a better position than the master to ascertain

and guard against the negligence of those with whom he is

employed : clearly this could apply only to those cases where

he is, cither generally or in a particular case, actually associated

with the negligent servant in such a way as to be able to ob-

serve him and to exercise some influence over his conduct.^

Under the general rule a track repairer is the fellow-servant

of a trainman,^ while under the "different department" doc-

trine he is not.^ Under the general rule a baggageman and

an engineer are fellow-servants, while under the special rule

they have been held not to be so, although both are employed

upon the same train,^

It is everywhere admitted that two servants of the same

master may be engaged in such totally different undertakings

that neither can fairly be regarded as having assumed the

risk of the negligence of the other. Thus where M is engaged

In the ocean carrying trade, the seamen on one of his vessels

are not to be regarded as the fellow-servants of the seamen

on another of his vessels.^ It is equally clear that under the

general rule the trainmen on one railway train are the fellow-

servants of the trainmen on another.^ Between these extremes

one might suggest the case of the servants on two ferry boats

run by the same master and plying between the same points.

The driver of a wagon employed in a master's meat busi-

ness is not in the same common service with a hod- carrier

employed by tlie same master in the construction of a building

intended for the extension of such meat business.'^

Where one railway company runs its cars over the tracks

of another, the employees of the latter are not fellow-servants

of the employees of the former.^ So an employee on a

1 See Chicago, &c. R. v. Swan, 176 111. 424.

2 Coon V. Syracuse, &c. R., 5 N. Y. 492.

8 Chicago, &c. R. v. Moranda, 93 111. 302.

* Chicago, &c. R. v. Swan, 176 111. 424.

6 The Petrel, 1893, P. 320.

6 Oakes v. Mase, 165 U. S. 363.

' McTaggart v. Eastman's Co., 28 N. Y. Misc. 127.

8 Smith V. New York, &c. R., 19 N. Y. 127 ; Murphy v. New York,

&c. R., 118 N. Y. 527.

22

338 LIABILITY OF MASTER

liglitercr is not a fellow-servant of the seamen on a vessel

employing the ligliterer.i Generally in an action against a

third person (not the master) the concurring negligence of a

fellow-servant of the plaintiff will not bar a recovery .2

§274. First exception. — The vice-principal doctrine.

The rule then is that the master is not liable for i)crsonal

injuries occasioned to one servant by the tort of a fellow-

servant employed in the same common service. But the

master is liable for his own negligence resulting in personal

iujuncs to his servant.'^ lie is also liable for the negligence

of his dei)uty resulting in injuries to his servant. This

deputy is known in the law as a vice-principal, and it now

becomes necessary to ascertain who is, and who is not, a

vice-principal.

At least two pretty well-defined tests have been applied for

the solution of this problem: (1) that one is a vice-principal

who has general superintendence and control of a business, or

of some defined department of a business, and that a servant

under his control and direction is not his fellow-servant^; (2)

that one is a vice-principal who is engaged in performing for

the master an administrative act which the law docs not per-

mit the latter to assign to any one, and that one so performing

a non-assignable act is not the fellow-servant of any other

employee.^ It will be observed that the first test regards the

rank and authority of the employee as decisive, while the

second test regards the character of the act performed, and

not rank or authority, as decisive. The first may be called

the " superior officer test " and the second the " non-assign-

able duty test."

1 Svenson v. A. M. S. Co., 57 N. Y. 108.

2 Seaman v. Koehler, 122 N. Y. 646; Perry v. Lansing, 17 llun

(N.Y.), 34.

8 Post, В§ 280 et acq.

< Little Miami R. Co. v. Stevens, 20 Ohio, 415; Union Pac. R. Co. v.

Doyle, 50 Neb. 555 ; Moon v. Richmond, &c. R., 78 Va. 715.

5 Crispin v. Babbitt, 81 N. Y. 516 ; New p:iigland R. Co. v. Conroy,

175 U. S. 323.

FOR TORTS TO SERVANT. 339

§ 275. Same. — The superior officer test.

The superior ofiicer test seems to have had its origin in the

case of Little Miami Railroad v. Stevens ' decided by the Su-

preme Court of Ohio in 1851, and has been most fully worked

out and explained by that court. As stated in a recent case

the doctrine is that, " The implied obligation of the servant to

assume all risks incident to the employment, including that of