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the master himself is free from fault he must be made liable in accordance with the rule of respondeat superior. But respondeat superior does not mean that the master must answer in damages to all persons for all the acts of one who is, in relation to some matters and toward some persons, his representative. It means simply that the master must respond for those acts in respect to which the negligent servant was his representative toward the plaintiff.14 The same caution must be employed in applying the rule qui facit per alium facit per se.

In the case of an injury from a co-servant, the liability of the master turns upon the question whether, in respect to the act complained of, the negligent employe was the representative of the common employer toward the plaintiff. If he was such representative the master should be liable, otherwise, the master should not be liable-results which, it will be found, the courts have reached in applying the doctrine of common employment. As between co-servants, strictly speaking, neither represents the common master with respect to the other, but it often happens that an employe sustains the double relation of fellow-workman and representative of the master.

To determine when a servant represents the common master, with respect to a co-servant, necessitates an inquiry into the duties of master, a point which will be taken up later in the discussion.

III. No doubt any longer exists as to the common law rule exempting an employer from liability to an employe injured by the negligence of a fellow-workman, when the employer is himself free from fault; the disputes which now arise are as to the limits of the rule, and are occasioned mainly by questions as to who are fellow-servants to the intent of exempting the master. What constitutes common employment? To what es ent should the master be liable for the acts ) his manager or foreman? When should pe sons in different branches of an extensive ousiness be regarded as fellow-servants? On all these and other heads much room remains for critical discrimination, and new cases must continue to arise.

Many of the questions above suggested will be answered by discovering what are the duties of the master. It may be laid down as a general proposition which, as we shall show, is borne out by the cases, that in America, under the common law, and in England, under the "Employer's Liability Act," a master is liable to his servant for any neglect of the master's duty, whether committed by the master himself or by one to whom he had delegated his authority. 15

The duties of an employer may be summed up as follows:

First: To provide safe and suitable 'machinery and appliances for the business. This includes the exercise of reasonable care in furnishing such appliances ; 16 and the exercise of like care in keeping the same in repair and making proper inspections and tests. 17

Second: To exercise like care in providing and retaining sufficient and suitable servants for the business. 18

Third: To establish proper rules and reg.. ulations for the service. 19

All of the foregoing duties, it will be perceived, are included in the one general duty of the master to provide a safe plant. The law is well settled that the master is not required to be a guarantor in this behalf; but is only required to employ reasonable and ordinary care in selecting what he requires in his business. 20

Fourth : In addition to the duties enumerated is the special one, growing out of the employment of youthful or inexperienced servants, to see that they are not employed in a more dangerous position than that for which they were engaged, and to give such warning of danger as the case demands.21 Applying these principles, it will be found that they enable us to determine a large propor tion of the cases.

15 Corcoran v. Holbrook, 59 N. Y. 517; Chicago, etc. R. R. Co. v. Jackson, 55 III. 492.

16 Hough v. Texas & Pacific R. R. Co., 100 U. S. 213; Booth v. Boston, etc. R R. Co. 67 N. Y. 593.

17 Frazier v. Penn. Co. 38 Pa. St. 104. 18 Harper v. Indpls. & St. L. R. R. Co. 44 NO. 480.. 19 Chicago, etc. R. R. Co. v. Taylor, 69 III. 461.

20 Cooley on Torts, 557; Redhead v, Midland R. R. Co. 2 Q. B. 412; Toledo, etc. R. R. Co. y. Fredericks, 71 III. 294.

21 Grizzle v. Frost, 3 Fost. & F. 622; Coombs v: New Bedford Cordage Co. 102 Mass. 572.

14 V. South. Law Rev. 281.



First: As to the master's duty to provide suitable equipments for the business and to keep the same in repair ; where a brakeman was killed by an accident resulting from defective construction of the road, the railroad company was held liable. “There is no rule better settled than this, that it is the duty of railroad companies to keep their road and works and all portions of the track in such repair and so watched and tended as to insure the safety of all who may lawfully be upon them, whether passengers or servants, or others. Such an obligation is permanent and cannot be avoided by the delegation of the power or authority to any other or number of persons.

Accordingly, it has been held that a section foreman and brakeman are not fellow-servants because the former performs an implied duty of the master. 23

In the case of Smith v. Flint, etc. Ry. Co. where a brakeman was injured through the negligence of a car inspector, the doctrine of fellow-servants was improperly applied.24

Second: "The obligation to employ suitable servants is precisely the same as that to provide suitable machinery and appliances for the business.” 25

If a master negligently employs or retains incompetent servants he “is liable for an injury occasioned to a fellow-servant by their incompetency.'

Where a fireman was placed in charge of an engine, and in consequence of his incapacity the conductor was injured, the company was held liable. 27

To provide sufficient servants for the undertaking is likewise one of the absolute duties of the master. Where

à train started with only two brakemen, when the safety of the train required three, the defendant was made to respond in damages to a servant injured in consequence, although the immediate negligence in starting the train

without sufficient brakemen was that of a coservant. 28

Third : Where a switchman was killed through the default of the railroad company in not making and enforcing such proper rules and regulations as would secure the safety of its employees, the company was held liable.

The same duty in regard to rules is recognized by Justice Field in Chicago, Milwaukee & St. Paul Railway Co. v. Ross.30

Of this case, which has attracted considerable attention, it may be said, in passing, that with all respect to the eminence of the court which pronounced the decision, to hold that a conductor and engineer are not fellowservants, is contrary to the well established and uniform current of decisions both in this country and in England. To reach this conclusion, the opinion assumes that the conductor has the entire control and management of the train. “He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders.” As a matter of fact, this is seldom the case. A conductor runs either in accordance with a time card prepared by the company which “directs when the train shall start, at what speed it shall run, at what stations it shall stop, and for what length of time,” etc., or in accordance with telegraphic orders, which determine these points for him. Both conductor and engineer carry these time cards and are alike guided by them; the telegraphic orders are sent to both, and both are equally bound to obey them.

In short, both work uuder the orders of the same superior and for the same end, and, therefore, as will be seen hereafter, are fellow-servants. It is worthy of note that Justices Bradley, Matthews, Gray and Blatchford, dissenting, say: "We think that the couductor of the railroad train in this

a fellow-servant of the railroad company with the other employes on the train." The case, however, might well have been decided against the company for its neglect of the duty under consideration,


case was

22 Breese, C. J. in Chicago & N. W. R. R. Co. v. Swett, Admr. 45 III. 197, 203.

23 Lewis, Admr. v. R. R. Co. 59 Mo. 495.
24 46 Mich. 258.
25 Cooley on Torts, 558.

26 Gray, J. in Gilman v. Eastern R. R. Co., 13 Allen, 433.

27 Harper v. Indianapolis & St. Louis R. R. Co., 47 Mo. 567.

% Flike v. Boston & Albany R. R. 53 N. Y. 553. 29 Chicago & N. W. R. R. Co. v. Taylor, 69 Ill. 461. > 112 U. S. 377.



namely: to make and enforce such regula- the servant only assumes the risks of his own tions as would secure the safety of its ser- employment. vants. It has been well said that “no pru- The doctrine of common employment apdent railway superintendent at this day would plies to a volunteer just as to a co-servant; move a train of any character by telegraph, also, where the service is induced by the reunless his rules provide that both the conduc- quest of a servant in the defendant's emtor and engineer were given copies of such ploy. 38 telegraph orders.”

The question who are fellow-servants withFourth: Where a boy was directed to ad- in the meaning of the rule is a difficult one, just a belt on a rapidly revolving wheel, and,

and has been rendered more so by conflicting in attempting to execute the order, had his decisions. When persons are working toarm torn from his body, the employer was

gether for a common end, the test as to held liable on the ground of the youth and whether they sustain the relation of master inexperience of the plaintiff, notwithstanding

and servant, or of co-servants, has been the boy was a fellow servant of the one who placed upon the ground of the power to hire gave the order. 31

and discharge men.

But this is far from beGrizzle v. Frost is the leading English case

ing satisfactory, for unless one hires in virtue on the same point. 32

of his own right, rather than by the authority It will be seen that a corporation, or per

of another, he is not the employer.3 son employing a large number of servants,

It had also been held that the power to disescapes no responsibility by delegating the

charge does not create the relation of master duties of master to an agent; and, there

and servant. 40 fore, contrary to the argument often urged Judge Wood, in his work on Master and against the doctrine of common employment, Servant, lays down the rule that those are cohas no advantage in this respect over a small- servants who are subject to the same gener proprietor, who manages his own busi- eral control, and engaged in the same com

mon pursuit. 41 In all of these cases the law will presume

This rule will be found generally applicathat the master has performed his duty; and ble except to the cases where a servant is the burden of proof is therefore upon the performing one of the enumerated duties of servant to establish negligence on the part of the master; as to such duty the relation is the master. 33

that of master and servant. It has repeatIt is to be observed that one to whom a

edly been held that superiority of rank or master's duties have been delegated may, as

grade does not change the relation. 42 to such matters, stand in the place of the

The relation depends rather upon the natmaster, and as to all others be a mere

ure of the duties to be performed. servant. 34

be said, therefore, that except as to the absoIf the negligence of a master combine with

lute duties of a master, those are fellow-serthat of a fellow-servant to produce the in

vants who are engaged in the same common

same general control, jury, the master, being one of the two joint pursuit, under the

without reference to the grade of service or wrong-doers, is liable.35

dissimilarity of work, provided there is such A servant has the same right of action as a

a connection between the different kinds of stranger when the injury is caused by another servant of the same master engaged in employment as necessarily brings the sera wholly distinct business, on the ground that

vants into contact with each other.


It may


31 Railroad Co. v. Fort, 17 Wall. 553. 32 3 F. & F. 622.

33 Tarrant v. Webb, 18 C. B. 797; Baulec v. R. R. Co. 59 N. Y. 356.

34 Wood's Master and Servant, p. 860; Crispin v. Babbitt, 81 N. Y. 520.

* Paulmeiser v. Erie Ry. Co. 34 N. J. 151.

36 Cooley on Torts, p. 560.
87 Degg v. Midland R. R. Co. 1 H. & N, 773.
3 Potter v. Faulkner, 5 L. T. 455.
39 The King v. Hoseason, 14 East. 605.
40 Reedie v. London, etc. R. R. Co. 4 Ex. 244.
41 Woods M. and S. p. 837.

42 Cooley on Torts, 544; Flike n. Boston, etc. R. R. Co., 53 N. Y. 549, 553.



man. 44


Thus, it has been held, that the relation of tion is the English “Employer's Liability Act fellow-servants exists between a carpenter

of 1880.” 51 employed by a railroad company and its train It cannot be denied that until modified by hands; and between an engineer and switch this enactment the doctrine of common

ployment, as enforced in England, was often But the receiver of a railroad and a unjust and subject to abuse. To such an exvant employed on the railroad are not fellow tent has this defense been carried that the servants. 45

law was stated as follows: "At present a IV. In France, a case which was probably

master is not liable to any servant for any inthe very first involving the doctrine of com jury which arises from the act or default of mon employment was brought before the any fellow-servant whether that fellow-serCourt of Lyons in 1834, three years earlier vant be in a position of authority or not, and than Priestley v. Fowler. The Court of First in ascertaining whether the person to whose Instance held that the plaintiff, having ac act or default the injury is due, is a fellowcepted the danger, could not recover, and servant, the widest possible construction is this judgment was affirmed on appeal. 46 given to the term Common Employment.” 52

This case, however, was afterwards over The English Liberals, embracing this as an ruled, and it was determined that Article excellent opportunity for agitation and re1384 of the Code Civil, rendered the em form, secured the passage of the act above ployer liable.

referred to, popularly called the “Gladstone The Italian Code (Art. 1153) contains a Bill.” The effect of this act was not to abol. provision similar to that of the French Code, ish the defense of common employment; it and would probably be given a similar con restores the doctrine to about the position it struction. 47

held when Priestley v. Fowler had been deThe Prussian law has recently made the cided in 1837, which is substantially the same master liable and has prohibited contracts in as the present American law when unaffected derogation of this liability. 48

by statutes. But the enactment in question In Scotland alone, when presented as goes further and gives to an employee the question of novel impression, do we find the same remedy as to a stranger for a personal courts rejecting the doctrine of common em injury, caused by reason of the negligence ployment. 49


of any person in the service of the employer In 1858, however, the House of Lords de who has th charge or control of any signal, cided that the rule was the same for Scotland points, loc notive engine or train upon a as for England, and the laws of the two

railway.53 countries have since been in harmony on this In practice this act has not accomplished point.

what was expected of it, as a servant may, The courts of Ireland have always followed by express contract, waive the benefit of the the English rule.50

statute except as to criminal negligence, and As showing the general trend of public

such a contract will be enforced. 64 The law sentiment on this question, it may not be

is the same in this country, as to such conamiss to note the recent statutory changes.

tracts, unless expressly forbidden by statThe most carefully considered statute and the one which has attracted the most atten The results of an examination of the

American statutes on this subject may be 43 Morgan v. Vale of Neath R. R. Co. L, R. 1 Q. B., summarized as follows: six States, Georgia, 149.

Iowa, Kansas, Mississippi, Rhode Island and 44 Columbus, etc. R. R. Co. v. Troesch, 69 III. 545. * Mearu's Admr. v. Holbrook, 5 Am. Rep. 633.

Wisconsin, and the Territories of Montana 46 Dalloz, 18:37, 2nd pt. 161. 47 Beven's Einp. Liab. Act, 1880, p. 6.

61 43 and 44 Vict. c. 42. * (1876) House of Commons Doc. 3:2, p. 27.

52 House of Com. Doc. 1877, 285. 40 (1839) Sword v. Cameron, 1 Scoich Sess. Cag. 493; 53 Sec. 1, sub-sec. 3. (1872) Dixon v. Rinkin, 11 Scotch Sesy. Cas. 420.

B4 Griffiths v. Earl of Dudley, 51 L. J. Rep. Q. B, D. 60 McEnerny v. Waterford & Kilkenny Ry. Co. 8 Ir.

043. C. L. B. 312.

Western, etc. R. B. Co. v. Bishop. 60 Ga. 465.

ute. 55

and Wyoming, have adopted statutes provid- TAXATION-CONSTITUTIONAL LAW-IN

TER-STATE COMMERCE. ing the same remedies for railroad employes as for the public in general. The State of

THE WESTERN UNION TELEGRAPH COMPANY Rhode Island, though extending protection V. THE STATE BOARD OF ASSESSMENT. to other employes than those of railroads,

Supreme Court of Alabama, December Term, 1885. limits the remedy to cases where loss of life occurs. It is noticeable that, with the ex- 1. Taxation-Extent of Words, Property and Taxception of Rhode Island, recent litigation

able Property.-The words "property” and “taxable

property,” as used in the constitutional provisions rechanges the common law doctrine only with quiring taxes on property to be assessed in exact prorespect to railroads.

portion to its value, and limiting the rate of taxation

on taxable property (Art. XI, $$ I, 4), do not include Thus we see that, when presented as a

all the subjects of taxation; and those provisions have question of novel impression, except in the no application to taxes imposed as licenses on particScottish courts, the master has uniformly

ular occupations or privileges, or on the gross receipts

of any business. been held exempt from liability to a servant injured by the negligence of a co-servant;

2. Constitutional Law-Discrimination Between

Kinds of Business-A tax of two per cent. on the gross that there is a general tendency, in this amount of the receipts by any and every telegraph country as well as in Europe, to modify this company, derived from business done in this State, is rule by statute; that the common law in this

not violative of either of these provisions nor is it ob

jectionable as discriminating between the corporations behalf is based on sound legal principles and specified and corporations engaged in other kinds of is in accordance with natural justice, and in

business. general terms may be stated as follows:

3. Inter-State Commerce-Messages Beyond Borders When a workman, without fault of his own,

of State.-The tax is imposed on the gross receipts of

the business done in this State, which includes receipts is injured by the negligence of another, in

from messages sent beyond the limits of the State, or the services of the same master, the injured received here from messages sent from beyond this

State, and this is not an unauthorized interference party may have his action against the negli

with inter-State commerce. gent servant in any event; he may recover from the master when the latter is personally

Appeal from Montgomery Circuit Court. at fault, or when the negligent servant was

Tried before Hon. John P. Hubbard. performing one of the duties which the law

Messrs. Gaylov B. Clark and Jones & Faulkner, imposes on the master, or where—though the counsel for appellants; Hon. T. N. McClellan, two servants had a common employer—they Atty-Gen., contra. were engaged each in a different business, or

CLOPTON, J., delivered the opinion of the court:

Subdivision six of section six of the revenue in such different departments of the same

law, levies a tax of two per centum “on the gross business that they were not likely to be

amount of the receipts by any and every telebrought together; but that the injured ser

graph, telephone, electric light, and express comvant may not recover from the master when pany derived from business done by it in this the fault was that of a competent servant

State." Acts, 1884-85, p. 10. The constitutionperforming a servant's duties, and engaged

ality of the statute is the material point of contes

tation; which question we shall consider on acin the same branch of business with the per

count of its importance to both the State and the son injured.

tax-payer, pretermitting any expression of opinThe doctrine of common employment has ion as to the appropriateness or regularity of the been sharply criticized, partly because of the proceedings. Appellant contends the statute viounsubstantial nature of the remedy against a

lates section one of article eleven of the Constituco-servant, and partly by reason of the sym

tion, which requires that, “All taxes shall be as

sessed in exact proportion to the value of such pathy naturally felt for the weaker party,

property;" and also section four of the same arbut properly understood and enforced, it is a

ticle, which provides: "The General Assembly safe and reasonable rule.

shall not bave the power to levy, in any one year, Chicago, III. Frank H. CLARK. a greater rate of taxation than three-fourths of

one per centum on the value of taxable property within this State."

Prior to the Constitution of 1865, the only limita ations on the power of taxation were, that no one shall be obliged to pay any tithes, taxes or other rate, for the building or repairing of any place of worship, or for the maintenance of any minister

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