ous upon the question of the master's or employer's liability for injury done by one of his servants to another by a want of skill or negligence in the business of their employment. Upon this point the court charged "that if it appeared in evidence that Fox and Sandford were in the employment of Shepperd, Leeds, & Hoyt, engaged in a common employment, and the injury to the plaintiff was occasioned by the neglect or unskillfulness of the defendant Sandford, yet under the weight of authority, English and American, the court felt constrained, and so instructed the jury, that the defendants Shepperd, Leeds, & Hoyt could not be held liable in damages for such neglect or unskillfulness on the part of their co-defendant, Sandford;" but they could be for any neglect of their own; "but were not responsible for the condition of the derrick on the morning the accident happened."

We are brought to the same conclusion in relation to the weight of authority, as well as the reason of the rule applied to the facts of the case before us: Story on Agency, sec. 453, and notes; 2 Kent's Com. 281, top page, and notes; Priestly v. Fowler, 3 Mee. & W. 1. The reasoning by which this position is maintained need not here be reiterated, as it will be found in the cases referred to, and others there cited.

It will be observed that the facts of this case do not raise the question of liability of the employer for want of due care in the selection of his servants, or making proper provisions for their safety. Such a case might fall under a very different rule.

In this case we think there is no error against the appellants in either case by which they could have been injured, in view of the facts in this case, and therefore affirm the judgment.

WHO ARE FELLOW-SERVANTS IN COMMON EMPLOYMENT.-The general rule of the employer's liability is stated in the note to Murray v. S. C. R. R., 36 Am. Dec. 279, and the origin and history of the rule is there discussed at length; and while there is very little conflict of authority as to the rule, the great difficulty that courts have experienced in the practical application of it to particular facts and circumstances has led to a great diversity of opinion and to decisions in the courts of different states totally irreconcilable. The impossibility of laying down any uniform rule which can be applied to all the varying circumstances and conditions of the business world is confessed by all the judges who have been called upon to pass on the question, and this very difficulty has led the courts of some states to consider all who are employed by the same master in the same general business, without respect to the nature of the employment, as fellow-employees, and to apply the rule with great rigor, and to allow of no exception. This is notably so in the English decisions, and in nearly all of the cases in the older states: See Priestly v. Fowler, 3 Mee. & W. 1; Farwell v. Boston etc. R. R., 4 Met. 49; S. C., 38

Am. Dec. 339; Lavell v. Howell, L. R. 1 C. P. Div. 161; S. C., 45 L. J. C. P. 387; Waller v. South Eastern R'y, 2 Hurl. & C. 102; Conway v. Belfast etc. R'y, I. R. 9 C. L. 498. On the other hand, in the progress of society and general extension and diversification of business carried on by the same employer, it has been found that the rule often works injustice and hardship, and the tendency of the modern authorities appears to be in the direction of such a modification as shall eventually devolve upon the employer a just share of the responsibility for the safety of his employees. While in many of the states the rule has become firmly ingrafted on their respective systems, still we find a constant tendency to make exceptions and lessen the harshness of the application of the rule to cases where manifest justness demands an abatement of its rigor. And without attempting to give a definition of the term "fellow-employees," under the rule, it will be sufficient to say that the tendency of the later decisions is to regard only those who, in the performance of their respective duties, are so connected or brought into co-oper-, ation that the performance of their respective duties will ordinarily bring them into such situations as to expose them to the risk of injury from the negligence or carelessness of each other—an actual co-operation to accomplish some particular result, a consociation in their ordinary duties: See Chicago etc. R. R. v. Moranda, 93 Ill. 302; S. C., 34 Am. Rep. 168; Holton v. Daly, 4 ill. App. 25; Gillenwater v. Madison etc. R. R., 5 Ind. 339; S. C., 61 Am. Dec. 101; Louisville etc. R. R. v. Collins, 2 Duv. 114; O'Donnell v. Allegheny etc. R. R., 59 Pa. St. 239; Davis v. Central Vermont R. R., 55 Vt. 84; S. C., 45 Am. Rep. 590; Ford v. Fitchburg R. R., 110 Mass. 240; S. C., 14 Am. Rep. 598; Shanny v. Androscoggin Mills, 66 Me. 420; Brown v. Central Facific R. R., 6 West Coast Rep. 797 (Cal.).

THE GENERAL RULE that an employer is not liable to those in his employ for injuries resulting to them from the negligence or misconduct of fellowemployees engaged in the same common service or employment is well settled. The employer is not liable except where the injury can be traced to the employer himself, either in employing incompetent servants or in retaining incompetent servants after notice, or from defective machinery or insuficient materials. In addition to the cases cited in the note to Murray v. S. C. R. R., 36 Am. Dec. 268, the following recent decisions sustain the rule: Lovegrove v. London etc. R'y, 16 C. B., N. S., 669; Gallagher v. Piper, Id.; Conway v. Belfast etc. R'y, I. R. 9 C. L. 498; Bull v. Mobile etc. R. R., 67 Ala. 206; Mobile etc. R'y v. Smith, 59 Id. 245; Lopez v. Central Arizona M. Co., 1 West Coast Rep. 41 (Ariz.); Beeson v. Green Mountain G. M. Co., 57 Cal. 20; Colorado etc. R. R. v. Ogden, 3 Col. 499; Shields v. Yonge, 15 Ga. 349; S. C., 60 Am. Dec. 698; Illinois etc. R. R. v. Cox, 21 Ill. 20; Chicago etc. R. R. v. Keefe, 47 Id. 108; Columbus etc. R'y v. Troesch, 68 Id. 545; S. C., 18 Am. Rep. 578; Ohio etc. R. R. v. Tindall, 13 Ind. 366; Wilson v. Madison etc. R. R., 18 Id. 226; Gormley v. Ohio etc. R'y, 72 Id. 31; Ohio etc. R'y v. Collarn, 73 Id. 261; S. C., 38 Am. Rep. 134; Robertson v. Terre Haute etc. R. R., 78 Ind. 77; S. C., 41 Am. Rep. 552; Helfrich v. Williams, 84 Ind. 553; Louisville etc. R. R. v. Collins, 2 Duv. 114; Hubgh v. N. O. & C. R. R., 6 La. Ann. 495; S. C., 54 Am. Dec. 565; Satterly v. Morgan, 35 La. Ann. 1166; Osborne v. Knox etc. R. R., 68 Me. 49; Blake v. Maine Central R. R., 70 Id. 60; S. C., 35 Am. Rep. 297; O'Connell v. Baltimore etc. R. R., 20 Md. 212; Shauck v. Northern etc. R'y, 25 Id. 462; Cumberland Coal etc. Co. v. Scally, 27 Id. 589; Hanrathy v. Northern etc. Ry, 46 Id. 280; Pennsylvania R. R. v. Wachter, 60 Id. 395; Kelley v. Norcross, 121 Mass. 508; Harkins v. Standard Sugar Refinery, 122 Id. 400; Colton v. Richards, 123 Id. 484; Kelley v. Boston Lead Co.,

128 Id. 456; Curran v. Merchants' Mfg. Co., 130 Id. 374; S. C., 39 Am. Rep. 457; McDermott v. City of Boston, 133 Mass. 349; Flynn v. City of Salem, 134 Id. 351; Floyd v. Sugden, Id. 563; Day v. Toledo etc. R'y, 42 Mich. 523; Smith v. Flint etc. Ry, 46 Id. 258; S. C., 41 Am. Rep. 161; Greenwald v. Marquette etc. R. R., 49 Mich. 197; Brown v. Winona etc. R. R., 27 Minn. 162; S. C., 38 Am. Rep. 285; Collins v. St. Paul etc. R. R., 30 Minn. 31; Brown v. Minneapolis etc. R'y, 31 Id. 553; Chicago etc. R. R. v. Doyle, 60 Miss. 977; Brothers v. Cartter, 52 Mo. 372; S. C., 14 Am. Rep. 424; Conner v. Chicago etc. R. R., 59 Mo. 285; McAndrews v. Burns, 39 N. J. L. 117; Sherman v. Rochester etc. R. R., 17 N. Y. 153; Laning v. N. Y. Cent. R. R., 49 Id. 521; S. C., 10 Am. Rep. 417; Crispin v. Babbitt, 81 N.Y. 516; S. C., 37 Am. Rep. 521; McCosker v. Long Island R. R., 84 N.Y. 77; Harvey v. N. Y. Cent. etc. R. R., 88 Id. 481; Young v. N. Y. etc. R. R., 30 Barb. 229; Marvin v. Muller, 25 Hun, 163; Cowles v. Richmond etc. R. R., 84 N. C. 309; S. C., 37 Am. Rep. 620; Columbus etc. R. R. v. Webb, 12 Ohio St. 475; Pittsburg etc. R'y v. Devinney, 17 Id. 197; Lake Shore etc. R'y v. Knittal, 33 Id. 468; Railway Co. v. Ranney, 37 Id. 665; Willis v. Oregon etc. R. R., 3 West Coast Rep. 240 (Or.); Weger v. Pennsylvania R. R., 55 Pa. St. 460; Lehigh Valley Coal Co. v. Jones, 86 Id. 432; S. C., 6 Rep. 125; 17 Alb. L. J. 513; Delaware etc. Canul Co. v. Carroll, 89 Pa. St. 374; Keystone Bridge Co. v. Newberry, 96 Id. 246; S. C., 42 Am. Rep. 543; Mann v. Oriental Print Works, 11 R. I. 152; Lasure v. Graniteville Mfg. Co., 18 S. C. 275; Gunter v. Graniteville Mfg. Co., Id. 262; S. C., 44 Am. Rep. 573; Ragsdale v. Memphis etc. R. R., 3 Baxt. 426; Nashville etc. R. R. v. Wheless, 10 Lea, 741; S. C., 43 Am. Rep. 317; Houston etc. R. R. v. Myers, 55 Tex. 110; Texas Mexican R'y v. Whitmore, 58 Id. 276; Davis v. Central Vermont R. R., 55 Vt. 84; S. C., 45 Am. Rep. 590; Brabbitts v. Chicago etc. R'y, 38 Wis. 289; Naylor v. Chicago etc. R'y, 53 Id. 661; Howland v. Milwaukee etc. R'y, 54 Id. 226; Hoth v. Peters, 53 Id. 405; Whitnam v. Wisconsin etc. R. R., 58 Id. 408; Heine v. Chicago etc. R'y, Id. 525; Hough v. Railway Co., 100 U. S. 213; Halverson v. Nisen, 3 Saw. 562; Melville v. Missouri River etc. R. R., McCrary, 194; Yager v. Atlantic etc. R. R., 4 Hughes, 192; Jordan v. Wells, 3 Woods, 527; Thompson v. Chicago etc. R'y, 18 Fed. Rep. 239; Crew v. St. Louis etc. R'y, 20 Id. 87.

SERVANT INTRUSTED WITH FULL CONTROL AND MANAGEMENT, OR WITH DUTIES MASTER IS HIMSELF BOUND TO PERFORM.-If an employer commits the entire charge of business to an employee, with power to choose his own assistants and to control and discharge them at pleasure, or intrusts the employee with the performance of duties which the employer himself is bound to perform, as in the preparation of materials or the construction of machinery, the employee is not a fellow-servant with those into whose hands the mere manual execution of the business is intrusted, and the employer is, therefore, liable for the negligence of such an employee, he being the representative of the master. These propositions are fully established by the cases in the note to Murray v. S. C. R. R., 36 Am. Dec. 289; and in addition thereto, see the following: Tyson v. South & North Alabama R. R., 61 Ala. 554; Fones v. Phillips, 39 Ark. 17; Beeson v. Green Mountain G. M. Co., 57 Cal. 20; Colorado Central R. R. v. Ogden, 3 Col. 499; Wilson v. Willimantic Linen Co., 50 Conn. 433; S. C., 47 Am. Rep. 653; Mitchell v. Robinson, SO Ind. 281; S. C., 41 Am. Rep. 812; Chicago etc R'y v. May, 108 Ill. 288; Kansas Pacific R'y v. Little, 19 Kan. 267; S. C., 6 Rep. 199; 6 Cent. L. J. 60; Hannibal etc. R. R. v. Fox, 31 Kan. 586; Chicago etc. R'y v. Bayfield, 37 Mich. 205; Quincy Min. Co. v. Kitts, 42 Id. 34; Ryan v. Bagaley, 50 Id. 179; S. C., 45 Am. Rep. 35; Brothers v. Cartter, 52 Mo. 372; S. C., 14 Am. Rep. 424; Gormley v. Vul

can Iron Works, 61 Mo. 492; Whalen v. Centenary Church, 62 Id. 326; Cook v. Hannibal etc. R. R., 63 Id. 397; Hall v. Missouri Pacific R'y, 74 Id. 298; Lydon v. Manion, 3 Mo. App. 602;' Devany v. Vulcan Iron Works, 4 Id. 236; Corcoran v. Holbrook, 59 N. Y. 517; S. C., 17 Am. Rep. 369; Booth v. Boston etc. R. R., 73 N. Y. 38; Sheehan v. N. Y. Cent. R. R., 91 Id. 332; Spelman v. Fisher Iron Co., 56 Barb. 151; Eagan v. Tucker, 18 Hun, 347; Henry v. Brady, 9 Daly, 142; Washburn v. Nashville etc. R. R., 3 Head, 638. But if the employee is negligent in performing work as a co-laborer with those under his control, which had no relation to his position as representative of his master, he would be a fellow-servant with those under him: Chicago etc. R'y v. May, 108 Ill. 288; Hoke v. St. Louis etc. R'y, 11 Mo. App. 574; as a superintendent of the road department of a railroad assuming to act as a mere "boss" or "foreman of a gang:" Hoke v. St. Louis etc. R'y, supra.

SUPERIOR AND INFERIOR SERVANTS.-Aside from the case where full control and management is intrusted to a superintendent or other employee by the employer, so that the employee represents to all intents and purposes the employer, we have the case where lesser powers and authority are conferred upon an employee. The English decisions, and a large number of American cases, maintain the doctrine that where the negligent servant is a superior and the injured servant an inferior, they are fellow-servants in a common employment, and the master is not liable, provided they are engaged in a common enterprise, with duties tending to the same general object or end; as, the head engineer and third engineer on a vessel: Searle v. Lindsay, 11 C. B., N. S., 429; S. C., 8 Jur., N. S., 746; 31 L. J. C. P. 106; 10 Week. Rep. 89; 5 L. T., N. S., 427; the general traffic manager of a railroad and a "milesman:" Conway v. Belfast etc. R'y, I. R. 9 C. L. 498; the manager of a gas company and the workmen employed about the premises: Allen v. New Gas. Co., L. R. 1 Exch. Div. 251; the foreman of locomotive-works and the men employed under him: Feltham v. England, L. R. 2 Q. B. 33; a subforeman in a coal mine in charge of a particular portion of the mine and the miners: Wilson v. Merry, L. R. 1 H. L. Sc. App. 326; the manager of a mine and the miners: Howell v. Landove Siemens Steel Co., L. R. 10 Q. B. 62; the foremen of a mine and the miners: McLean v. Blue Point M. Co., 51 Cal. 255; Peterson v. Whitebreast Coal etc. Co., 50 Iowa, 673; S. C., 32 Am. Rep. 143; the foreman in building scaffolding and the workmen under him: Gallagher v. Piper, 16 C. B., N. S., 669; the foreman of a gang of men employed as track or section men and the men under him: Chicago etc. R'y v. Simmons, 11 Ill. App. 147; Houser v. Chicago etc. R'y, 60 Iowa, 230; S. C., 46 Am. Rep. 65; Lawler v. Androscoggin R. R., 62 Me. 463; S. C., 16 Am. Rep. 492; Cumberland Coal etc. Co. v. Scally, 27 Md. 589; Daubert v. Pickel, 4 Mo. App. 591; Malone v. Hathaway, 64 N. Y. 5; S. C., 21 Am. Rep. 573; Barring v. Delaware etc. Canal Co., 19 Hun, 216; Weger v. Pennsylvania R. R., 55 Pa. St. 460; Keystone Bridge Co. v. Newberry, 96 Id. 260; S. C., 42 Am. Rep. 543; the conductor and brakeman on the same train, or in the employ of the same company: Thayer v. St. Louis etc. R. R., 22 Ind. 26; Sherman v. Rochester etc. R. R., 17 N. Y. 153; Whitman v. Wisconsin etc. R. R., 58 Wis. 408; Chicago etc. R'y v. Doyle, 60 Miss. 977; Conner v. Chicago etc. R'y, 59 Mo. 285; Day v. Toledo etc. R'y, 42 Mich. 523; the conductor in charge of a gravel train and the laborers on the train: Ryan v. Cumberland Valley etc. R. R., 23 Pa. St. 384; Naylor v. Chicago etc. R'y, 53 Wis. 661; Howland v. Milwaukee etc. R'y, 54 Id. 226; Heine v. Chicago etc. R'y, 58 Id. 525; O'Connell v. Baltimore etc. R. R., 20 Md. 212; the train dispatcher and the brakemen and engineers on the trains of the company: Robertson v. Terre

Haute etc. R. R., 78 Ind. 77; S. C., 41 Am. Rep. 552; Blessing v. St. Louis etc. Ry, 79 Mo. 410; the material-man and train dispatcher, having authority to hire and discharge men and direct the movements of trains, and an ordinary track laborer: McKune v. Cal. Southern R. R., 5 West Coast Rep. 159 (Cal.); the superintendent and operatives in a factory: Albro v. Agawam Canal Co., 6 Cush. 75; the foreman of laborers working on the street of a city and the laborers under him: McDermott v. City of Boston, 133 Mass. 349; Flynn v. City of Salem, 134 Id. 351; the "sectionman" and one employed to load wood on the tender: Foster v. Minnesota etc. R. R., 14 Minn. 360; the overseer, or roadmaster, and a "sectionman" under him: Brown v. Winona etc. R. R., 27 Id. 162; S. C., 38 Am. Rep. 285; the roadmaster and an engineer: Walker v. Boston etc. R. R., 128 Mass. 8; the yardmaster and one whose duty it is to make up trains: McCosker v. Long Island. R. R., 84 N. Y. 77; the foreman who erected scaffolding and a hod-carrier: Green v. Banta, 48 N. Y. Super. Ct. 156; the foreman of a dock company engaged in superintending the raising of a vessel and the men under him: Hart v. N. Y. Floating Dry Dock Co., Id. 460; the person placed in special charge of a wrecking-train and the crew: Beilfus v. New York etc. R'y, 29 Hun, 556; the mate and seamen of a ship: Olson v. Clyde, 32 Id. 425; Halverson v. Nisen, 3 Saw. 562; the foreman of a gang of laborers, engaged in erecting a shed under the direction of a supervisor, and the laborers: Willis v. Oregon R'y etc. Co., 3 West Coast Rep. 240; the "mining-boss" and "driver-boss: ' Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; S. C., 6 Rep. 125; 17 Alb. L. J. 513; the "mining-boss" and the miners: Delaware etc. Canal Co. v. Carroll, 89 Pa. St. 374; the foreman bridge-builder and a journeyman bridgebuilder and carpenter working under him: Yager v. Atlantic etc. R'y, 4 Hughes, 192; the millwright and a carpenter under him; National Tube Works v. Bedell, 96 Pa. St. 175; the foreman in operation of a pile driver and the laborers: Schultz v. Chicago etc. R'y, 48 Wis. 375; the foreman of a lumber-yard and laborers: Hoth v. Peters, 55 Id. 405; the engineer of a steam shovel and the laborers engaged with the machine: Thompson v. Chicago etc. R'y, 18 Fed. Rep. 239.

On the other hand, a number of recent American cases have shown a disposition to depart from this rule. "No service is common that does not admit of a common participation, and no servants are fellow-servants when one is placed in control over the other:” Cleveland etc. R. R. v. Keary, 3 Ohio St. 201; Graville v. Minneapolis etc. R'y, 3 McCrary, 352; Nashville etc. R. R. v. Wheless, 10 Lea, 741; S. C., 43 Am. Rep. 317. Thus it has been held that the conductor of a train is not a fellow-servant in a common employment with the rest of the men on the train, over whom he has control and authority: Chicago etc. R'y v. Ross, 112 U. S. 377; Ross v. Chicago etc. R'y, 2 McCrary, 235; Little Miami R. R. v. Stevens, 20 Ohio, 415; Moon's Adm'r v. Richmond etc. R. R., 78 Va. 745; S. C., 49 Am. Rep. 401; Dobbin v. Richmond etc. R. R., 81 N. C. 446; S. C., 31 Am. Rep. 512; Chicago etc. R'y v. Swanson, 16 Neb. 254; S. C., 49 Am. Rep. 718; Chicago etc. R’y v. Bayfield, 37 Mich. 205; the foreman in charge of repairing cars and the workmen under him: Lake Shore etc. R'y v. Lavalley, 36 Ohio St. 221; the yard-master in charge of cars in the yard and the yardmen employed about the cars: Stoddard v. St. Louis etc. R. R., 65 Mo. 514; the engineer and a fireman, where by the rules of the company the engineer is placed in superior authority: Mann v. Oriental Point Works, 11 R. I. 152; Nashville etc. R. R. v. Jones, 9 Heisk. 27; the "sectionboss," or foreman, having full authority to order a gang of track laborers about: Miller v. Union Pacific R'y, 17 Fed. Rep. 67; Louisville etc. R. R. v.