Injury occasioned by the negligence of a fellow-servant, has

no application where the servant by whose negligent conduct

or act the injury is inflicted, sustains the relation of a superior

In authority to the one receiving the injury. . . . Where one

servant is placed by his employer in a position of subordina-

tion to, and subject to the orders and control of another, and

such inferior servant, without fault, and while in the discharge

of his duties, is injured by the negligence of the superior ser-

vant, the master is liable for such injury." ^ Nebraska also

follows this doctrine.^

This rule, with some confusing variations, has been adopted

In whole or in part in a few other states. In Illinois it is

adopted to this extent, namely, that the master is liable to an

Inferior servant for the negligence of a superior servant, pro-

Vided the superior is negligent in the exercise of the power

over the inferior conferred upon him by the master, " If

the negligence complained of consists of some act done or

omitted by one having such authority, which relates to his

duties as a co-laborer with those under his control, and which

might just as readily have happened with one of them having

no such authority, the common master will not be liable. . . .

But when the negligent act complained of arises out of, and

is the direct result of the exercise of, the authority conferred

upon him by the master over his co-laborers, the master will

be liable." * In Texas it is adopted subject to the additional

qualification that the superior must have authority to hire

1 20 Ohio, 415.

2 Berea Stone Co. v. Kraft, 31 Oh. St. 287, 291-292.

8 Union Pac. R. v. Doyle, 50 Neb. 555.

4 Chicago & Alton R. v. May, 108 111. 288; Meyer v. 111. Cent. R.,

177 111. 591.

340 LIABILITY OF MASTER

and discharge the inferior.^ In Kentucky the master is liable

if the superior servant was " grossly " negligent, but not other-

wise.'-^ In several other states the Ohio rule is recognized to

some extent.'' The great weight of judicial authority is, how-

ever, opposed to this test.

By statutes in several jurisdictions the superior officer test

is made a part of the positive law. Thus the "в–  Employers'

Liability Acts " malve the master liable for the negligence of

any j)erson in the service who has any superintendence and

while exercising such superintendence, or of any person in the

service to whose orders or directions the workman at the time

of the injury was bound to conform and did conform to his

injury, or (beyond this test) of any person in the service who

has charge or control of any signal, switch, locomotive engine,

or train, etc., upon any railway.* In some states similiar acts

exist applicable only to railroads.^ In other states the fellow-

servant rule is either totally abolished as to railroads or mate-

rially modified.^

§276. Same. — The non-assignable duty test.

Most of the American jurisdictions recognize and apply the

"non-assignable duty" test in determining who is or who is

not a vicc-i)rincipal. This test has its foundation in the con-

1 Missouri Pac. R. v. Williams, 75 Tex. 4; Nix v. Texas, &c. R., 82

Tex. 473.

2 Louisville, &c. R. v. Collins, 2 Duv. 114 ; Greer v. Louisville, &c. R.,

94 Ky. 109.

8 Moor V. Railroad, 85 Mo. 588; Russ v. Wabash W. Ry., 112 Mo.

45; Mason v. Richmond, &c. R., Ill N. C. 452, s. c. 114 N. C. 718;

Railroad w. Spence, 93 Tenn. 173 ; Electric Ry, r. Lawson, 101 Tenn. 406;

Andreson i\ Ogden, &c. Co., 8 Utah, 128; Armstrong v. Railway Co.,

8 Utah, 420.

* 43 & 44 Vict. c. 42 ; Alabama Code, §§ 2590-2592 ; Colorado L., 1893,

c. 77; Indiana Acts, 1893, c. 130; Massachusetts Acts, 1S94, c. 499.

See Utah L., 189G, c. 24. Post, В§ 279.

6 Arkansas Statutes, §§ 6248-6250; Mississippi Const., § 193; Ohio

L. 1890, p. 149, Post, В§ 279.

В« Florida L. of 1891, c. 4071; Georgia Code, В§ 3036; Iowa Code,

В§ 1307 ; Kansas L. 1874, c. 93 ; Wisconsin L. of 1893, c 220, Post,

В§279.

FOR TORTS TO SERVANT. 341

ception that a master owes to his servants certain duties for

the proper performance of which he remains always liable ir-

respective of whether he performs them in person^ or through

representatives ; or, to put it in another way, the servant does

not assume the risk of the due performance of these duties

even though he is aware that they are to be performed by a

co-servant. In order to grasp this test it is necessary first to

enumerate the duties which the master owes to his servants

and for the due performance of which he remains always

liable.

A master is bound to use due care, either personally or

through a vice-principal, to provide and maintain : —

(1) A sufficient number of competent servants ;2

(2) Suitable instrumentalities, including a safe place to

work and safe tools and appliances;^

(3) Suitable inspection of such instrumentalities;*

(4) Suitable general rules and regulations for the govern-

ment of the service ; ^

(5) Suitable special orders necessary to the safety of the

service ; ^

(6) Suitable warning of any unusual or extraordinary

risk ; ^

(7) Suitable supervision necessary to meet the above re-

quirements.^

Any servant, whatever his grade or rank, to whom the

master delegates the performance of any of the above duties

is a vice-principal while engaged in such performance, al-

'oO

1 See post, В§ 282.

2 Flike r. Boston & A. R., 53 N. Y. 549 ; Coppins v. New York Cent.

&c. R., 122 N. Y. 557 ; Wabash Ry. v. McDaniels, 107 U. S. 454.

8 Fuller V. Jewett, 80 N. Y. 46; Ford v. Fitchburg R., 110 Mass. 240.

4 Bailey v. Rome, &c. R., 139 N. Y. 302 ; Nord Deutscher, &c. Co. v. ^

Ingebregsten, 57 N. J. L. 400. Cf. Cregan v. Marston, 126 N. Y. 568. Q^

6 Abel V. Delaware & H. C. Co., 103 N. Y. 581 ; Ibid. 128 N. Y. 662.

8 Hankins v. New York, &c. R., 142 N. Y. 416.

7 Mather v. Rillston, 156 U. S. 391; Fox v. Peninsular Lead Works,

84 Mich. 676; Smith v. Oxford Iron Co., 42 N. J. L. 467.

8 AVhittaker v. D. & H. C. Co., 126 N. Y. 544; Wabash Ry. v.

McDaniels, 107 U. S. 454.

342 LIABILITY OF MASTER

though as to his other duties he may be a fellow-scrvaait.^ Any

servant, whatever his grade or rank, who is engaged in an

operative act, as distinguished from one of the above prepara-

tive or rcguKative acts, is a fellow-servant and not a vice-prin-

cipal, although as to his duties generally he may be a

vice-principal.- In other words, the nature of the act, and

not the grade or rank of the actor, constitutes the test. The

situation is much the same as if the statutes prescribed that

every employer should observe the above requirements, in

which case it would be no answer that the neglect to do so

was the neglect of the fellow-servant of the plaintiff.^

The leading case is Crispin v. Babbitt^ where it appears

that a general superintendent or head man of defendant's iron

works negligently let on steam and started a wheel on which

plaintiff was at work. It was held that this was an operative

act and not the performance of any non-assignable duty, and

that the superintendent was, therefore, in the doing of that act,

the fellow-servant of the plaintiff. " The liability of the

master does not depend upon the grade or rank of the em-

ployee whose negligence causes the injury. A superintendent

of a factory, although having power to employ men, or repre-

sent the master in other respects, is, in the management of

the machinery, a fellow-servant of the other operatives. On

the same principle, however low the grade or rank of the em-

ployee, the master is liable for injuries caused by him to an-

other servant, if they result from the omission of some duty of

the master, which he has confided to such inferior employee."

The rule thus laid down has been accepted by the United

States Supreme Court,^ and by the courts of upwaids of thirty

states.^

It will be observed that the rule has two aspects in its

^ Northern Pac. K. v. Herbert, 116 U. S. 642; cases cited supra.

2 Crispin r. Babbitt, 81 N. Y. 516.

8 New York, &c. K. v. Lainbright, 5 Oli. Cir. Ct. R. 433.

* 81 N. Y. 516.

* Central R. v. Keegan, 160 U. S. 259 ; New England R. v. Conroy,

175 U. S. 323, overruling Chicago, &c. R. v. Ross, 112 U. S. 377.

8 See 1 Sh. & Red. on Neg., В§ 232 ; 12 Am. & Eng. Ency. of Law (2d

ed.), pp. 948-970.

FOR TORTS TO SERVANT. 343

application to concrete facts : (1) An employee whose duties

arc mainly those of a vice-principal may by the doing of an

operative act become a fellow-servant ; ^ (2) An employee

whose duties are mainly operative may by being intrusted

with the performance of a non-assignable duty become a vice-

principal.2 It follows that the same servant may occupy a

dual position, and be at one moment, in the performance of one

act, a vice-principal, and the next moment, in the performance

of another act, a fellow-servant. The superior othcer test is

antagonistic to the first aspect of the non-assignable duty test,

but not to the second. A superior officer is in Ohio a vice-

principal, even though performing an operative act.^ But an

operative might, conceivably, become a vice-principal also if

performing a non-assignaV)le duty.* In other words the second

aspect of the non-assignable duty test may be united to the

superior officer test (as it is in Illinois) В° and thus make the

most liberal common law rule in favor of the servant.

Certain employees are, as to their ordinary duties, vice-

principals, and a default upon their part as to those duties is

a default of the master. A president of a corporation,^ a

superintendent,'' a train despatcher,^ or a regular car inspec-

tor,^ and other superior officers charged with administrative

duties, are as to such duties vice-principals ; but if they tem-

porarily perform operative acts they are fellow-servants.^'^ On

the other ha.nd conductors of railway trains,^^ engineers,^^ and

1 Donnelly v. San Francisco Bridge Co., 117 Cal. 417; Crispin v.

Babbitt, 81 N. Y. 516.

2 Nixon V. Selby, &c. Co., 102 Cal. 458.

3 Berea Stone Co. v. Kraft, 31 Oh. St. 287.

* IMobile, &c. R. v. Godfrey. 155 Til. 78, a jurisdiction that also holds

to the superior officer test (Chicago & A. R. v. May, 108 111. 2S8).

6 Ibid. 6 Smith V. Iron Co., 42 N. J. L. 467.

7 Chapman v. Erie Co., 55 N. Y. 579; Sheehan v. R. Co., 91 N. Y.

332; Johnson v. Xat. Bank, 79 Wis. 414.

В« Hankins v. R. Co., 142 N. Y. 416 ; Ilunn v. IMichigan, &c. R., 78

Mich. 513; Felton v. Harbeson, 104 Fed. Rep. 737.

9 Eaton V. New York Cent., &c. R., 1G3 N. Y. 391.

10 Crispin v. Babbitt, 81 N. Y. 516.

" Slater v. Jewett, 85 N. Y. 61.

12 Harvey v. R. Co., 88 N. Y. 481 ; Capper v. R. Co., 103 Ind. 305.

344 LIABILITY OF MASTER

trainmen generally,^ are as to their ordinary duties fcllow-

seivants of other employees engaged in operative acts.

§ 277. Same. — Summary of vice-principal doctrines.

A master remains liable to his servant lor the negligence

of a vice-principal. To determine who is a vice-pi'incipal

there are two tests. But these are not in their entirety

antagonistic, and there may therefore be a combination of the

one with a part of the other. This leads to these possible

results :

(1) The rank of the negligent servant is the sole test. If

the negligent employee is a superior officer of the injured

employee, the master is liable irrespective of the character of

the act.2 If the negligent servant is not a superior officer of

the injured servant, the master is not liable whatever the

character of the act."^

(2) The character of the act is the sole test. If the superior

officer performs an operative act he is a fellow-servant.* If

an inferior servant performs a non-assignable duty, he is a

vice-principal.^

(3) The rank of the negligent servant is a sufficient test in

case the negligent servant is the superior of the injured ser-

vant.^ In other cases the character of the act is the proper

test."

It is doubtful whether, even in Ohio, the first result would

be accepted in its logical entirety. In the greater number of

jurisdictions the second result seems to be accepted, while in

a few the combination indicated in the third is accepted.

§ 278. Second exception. — Incompetent fello-wr-servants.

If the master negligently selects incompetent servants or

negligently retains them, he is liable to a fellow-servant injured

1 Roberts v. R. Co., 33 Minn. 218; Ewald v. R. Co., 70 Wis. 420.

2 Rerea Stone Co. v. Kraft, 31 Oh. St. 287.

8 Rivilroad Co. v. Fitzpatrick, 42 Oil. St. 318 ; Coal & Mining Co. v.

Clay, 51 Oh. St. 512, 559 (semble).

* Crispin v. Babbitt, 81 X. Y. 516.

6 Fuller V. Jewett, 80 N. Y. 46.

8 Chicago & A. R. v. May, 108 111. 288.

' Mobile, &c. R. v. Godfrey, 155 111. 78.

rOK TORTS TO SERVANT. 345

through the negligence of such incompetents.^ To furnish

safe servants is one of the master's duties, like the furnishing

of safe instrumentalities, and he must use due care to perform

it. " Incompetency exists, not alone in physical or mental

attributes, but in the disposition with which a servant per-

forms his duties. If he habitually neglects these duties, he

becomes unreliable, and although he may be physically and

mentally able to do well all that is required of him, his dispo-

sition toward his work and toward the general safety of the

work of his employer and to his fellow-servants, makes him

an incompetent man." ^ The master must be wanting in due

care, that is, he must be negligent in hiring or negligent in

retaining the servant after notice, or reasonable means of

notice, of such incompetency.^ A single negligent act of a

servant is not sufficient evidence of incompetence.* But evi-

dence of the servant's reputation for intemperance or other

disability is competent.^ The question is one of fact.^

В § 279. Third exception. — Statutory provisions.

The liability of a master to one servant for the negligence

of another has been much enlarged by statute. These statutes

are sometimes general in their nature, and sometimes made

applicable only to railroad corporations.

Employers' Liability Acts. The first of these acts is the

English Employers' Liability Act passed in 1880.'' This act

provides :

(1) When personal injury is caused to a workman^ by

1 Coppins V. New York Cent., &c. R., 122 N. Y. 557.

2 Ihid., p. 564.

3 Cameron v. New York Cent., &c. R., 145 N. Y. 400.

* Baulec v. N. Y., &c. R., .59 N. Y. 356 ; Evansville R. v. Guyton, 115

Ind. 450.

5 Chicago & A. R. v. Snllivan, 63 111. 293; Hilts v. Chicago, &c. R., 55

Mich. 437.

6 Mann v. Delaware & H. C. Co., 91 N. Y. 495; Sutherland v. Troy,

&c. R., 125 N. Y. 737; Wall v. Delaware, &c. R., 54 Hun, 454, affirmed,

125 N. Y. 727.

' 43 & 44 Vict. c. 42.

8 As defined by Employers and Workmen Act, 1875, i. e. railway ser'

346 LIABILITY OF MASTER

reason of any defect in the condition of the ways, works,

machinery, or plant connected with or iised in the business

of the employer, which defect arose from or had not been dis-

covered or remedied owing to the negligence of the cinjjloycr

or of some person in the service of the employer and in-

trusted by him with the duty of seeing that the ways, works,

machinery, or plant were in proper condition, — the workman

shall have the same right of compensation and remedies

against the employer as if the workman had not been a work-

man of, nor in the service of the employer, nor engaged in his

work,i unless the woi-kman knew of the defect or negligence

which caused the injury, and failed within a reasonable time

to give, or cause to be given, information thereof to the

employer or some person superior to himself in the service of

the employer, unless he was aware that the employer or such

superior already knew of the said defect or neglect.^

(2) Where personal injury is caused to a workman by

reason of the negligence of any person in the service of the

employer who has any superintendence intrusted to him^

whilst in the exercise of such superintendence, — the work-

man shall have, etc. [same as in section 1].

(3) Where personal injury is caused to a workman by

reason of the negligence of any person in the service of the

em))loycr to whose oi-dcrs or directions the workman at the

time of the injury was bound to conform, and did conform,

where such injury resulted from his having so conformed, —

the workman shall have, etc. [same as in section 1].

vants, manual laborers, etc., not including seamen or domestic servants.

Sec. 8 of the Act.

1 This somewhat infelicitous clause is interpreted to mean, — the doc-

trine of the implied assuniptinn by the workmen of these risks, including

the negligence of a fellow-servant, shall not apply. Griffiths v. Earl of

Dudley, Q. B. Div. ;5fi.5.

2 This clau.se retains the doctrine of contributory negligence and the

a.ssumption of risk known to the servant but unknown to the master.

The whole of this section is probably law in most of the United States

under the non-assignable duty test.

8 Cleans a person whose sole or principal duty is tliat of superintend-

ence and who is not ordinarily engaged in manual labor. Sec. 8 of the

Act.

FOR TORTS TO SERVANT. 347

(4) Where personal injury is caused to a workman by

reason of the act or omission of any person in the service of

the employer done or made in obedience to rules or by-laws

of the employer, or in obedience to particular instructions

given by any person delegated with the authority of the em-

ployer in that behalf, and the injury resulted from some