same employment. This general rule is now conceded on all. hands.3 The disputes which remain concern its proper limits, and what and how many are the exceptional cases. In some quarters a strong disposition has been manifested to hold the rule not applicable to the case of a servant who, at the time of the injury, was under the general direction and control of another, who was entrusted with duties of a higher grade, and from whose negligence the injury resulted. But it cannot be disputed that the negligence of a servant of one grade is as much one of the risks of the business as the negligence of a servant of any other; and it seems impossible, therefore, to hold that the servant contracts to run the risks of negligent acts or omissions on the part of one class of servants and not those of another class. Nor on grounds of public policy could the distinction be admitted, whether we consider the consequences to the parties to the relation exclusively, or those which affect the public who, in their dealings with the employer, may be subjected to risks. Sound policy seems to require that the law should make it for the interest of the servant that he should take care not only that he be not himself negligent, but also that any negligence of

3 Bartonskill Coal Co. v. Reid, 3 Macq. H. L., p. 266; same v. McGuire. Id. 300; Hutchinson v. Railway Co., 5 Exch. 343; Morgan v. Railway Co., L. R. 1 Q. B. 149; Brown v. Cotton Co., 3 H. & N. 511; Murray v. Railroad Co., I McMul. 385; Farwell v. Boston etc, R. R. Co., 4 Met. 49; Caldwell v. Brown, 53 Penn. St. 453; Sullivan v. Railroad Co., 11 Iowa, 421; Harper v. Indianapolis, etc, R. R. Co, 47 Mo. 567 ; Davis v. Detroit, etc., R. R, Co., 20 Mich. 105; Lawler v. Androscoggin R. R. Co., 62 Me. 463; Sherman v. Rochester, etc., R. R. Co., 17 N. Y. 153; Illinois Central R. R. Co. v. Cox, 21 Ill. 20; Hard v. Vermont, etc., R. R. Co., 32 Vt. 473; Wonder v. Baltimore, etc., R R. Co., 32 Md. 411; Columbus, etc., R. R. Co. v. Arnold, 31 Ind. 174; Hayden v. Smithville Manf. Co, 29. Conn. 557.

4 Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; Cleveland, etc., R. R. Co. v. Keary, 3 Ohio N. S. 201. See these cases explained in Pittsburg, etc., R.R. Co. v. Devinney, 17 Ohio N. S. 197. See also Louisville, etc, R. R. Co. v. Collins, 2 Duv. 114; same v. Robinson, 4 Bush, 507. If the master himself works with his servants and injures one of them by his negligence, he is liable therefor, and if he has partners in the business, they are liable also. Ashworth v. Stanwix, 3 Ellis & Ellis, 701. See Mellors v. Shaw, 1 Best & Smith, 437.

others in the same employment be properly guarded against by him, so far as he may find it reasonably practicable, and be reported to his employer, if needful. And in this regard it can make little difference what is the grade of servant who is found to be negligent, except as superior authority may render the negligence more dangerous, and consequently increase at least the moral responsibility of any other servant who, being aware of the negligence, should fail to report it.5 It has also been sometimes insisted that the law should exclude from the scope of the general rule the case of a servant injured by the negligence of another who, though employed in the same general business, had his service in some distinct branch of it; as in the case of a laborer on the track of a railroad injured by the carelessness of a conductor; a carpenter employed on buildings injured by the negligence of a yard-master in making up trains; and the like. But in the main the authorities agree that the general rule must apply to such cases, and that, on the reasons on which the rule is rested, they cannot be distinguished from those in which the service of both persons was in the same line.“

5" A foreman is a servant, as much as any other servant whose work he superintends." Willes, J., in Gallagher v. Pifer, 16 C. B. N. S. 659, 694. The same doctrine was declared in Wigmore v. Jay, 5 Exch. 354, and Feltham v. England, L. R. 2 Q. B. 33 In this country it has often been declared that the grade of service of the two servants is unimportant "provided the services of each in his particular sphere and department are directed to the accomplishment of the same general Bacon, J., in Warner v. Erie R. R. Co., 39 N Y. 468, 470. See Syracuse etc. R. R. Co., 5 N. Y. 492; Chicago etc. R. R. Co.

end."

Coon v.

v. Murphy, 53 Ill. 336; Columbus etc. R. R. Co. v. Arnold, 31 Ind. 174; Hayes v. Western R. R. Corp. 3 Cush. 270; Hard v. Vermont, etc. R. R. Co., 32 Vt. 473; O'Connell v. B. & O R. R. Co., 20 Md. 212;

Sherman V.

Rochester, etc., R. R. Co, 17 N. Y., 153; Ryan v. Cumber

Keefe,

land, etc., R. R. Co., 23 Penn. St. 384; Chicago, etc., R. R. Co. v.. 47. 108; Pittsburgh, etc., R. R. Co. v. Devinney, 17 Ohio N. S. 197. "No member of an establishment can maintain an action against the master for an injury done to him by another member of that establishment, in respect of which, if it had been a stranger, he might have had a right of action." Pollock, C. B., in Abraham v. Reynolds, 5 H. &

N. 143

"It was held in Morgan v.

Railway Co., L. R. 1 Q. B. 149, that a rail

way company was not liable to a carpenter employed to work at his trade

It has also been decided in England that the master is not liable for an injury caused by the negligence of one of his servants to the servant of a sub-contractor, who is engaged in the performance of a part of the same work. If the two servants were at the time engaged in doing the common work of the employer, they must be considered as for this purpose the servants of such employer while doing his work, "each directing and limiting his attention to the particular work necessary to the completion of the whole work," notwithstanding the one was employed by and responsible to the employer directly, and the other to one employed by him.7 III. The exceptions to the general rule may perhaps be all embraced in one general proposition: That if the servant is injured in consequence of the personal negligence of the

on its line, who was injured by the negligence of its porters in shifting an engine on its turn-table close by the shed on which the carpenter was working. 'The plaintiff and the porters were engaged in one common employment, and were doing work for the common object of their masters, viz., fitting the line for traffic." Earl, Ch. J., p. 154. “If a carpenter's employment is to be distinguished from that of porters employed by the same company, it will be sought to split up the employees in every large establishment into different departments of service, although the common object of their service, however different, is but the furtherance of the business of the master; yet it might be said with truth that no two had a common immediate object." Pollock, C. B., p. 155. And see Feltham v. England, L. R. 2 Q. B. 33. It is held in Massachusetts that a railroad company is not responsible to a person employed by it to repair its cars, for a personal injury arising from the negligence of a switchman, in failing properly to adjust a switch on the track over which he is carried by the company to his place of work, unless negligence in the employment of the switchman is made out. Gilman v. Eastern R. R. Corp. 10 Allen, 233. In Albro v. Agawam Canal Co., 6 Cush. 75, it was decided that a manufacturing company was not liable to one of its operatives for an injury occasioned by the negligence of the superintendent. And see Columbus etc. R. R. Co. v. Arnold, 31 Ind. 174; Louisville etc. R. R. Co. v. Cavens, 9 Bush, 559; Weger v. Pennsylvania R. R. Co., 55 Penn. St. 460. The rule of exemption extends to every member of an establishment." Pollock C. B., in Abraham v. Reynolds, 5 H. & N. 143.

7 Wiggett v. Fox, 36 E. L. & Eq. 486; s. c. 11 Exch. 832. Compare Murray v. Currie, L. R. 6 C. P. 24; Forsythe v. Hooper, 11 Allen, 419; Burke v. Norwich etc. R. R. Co., 34 Conn. 474; Hunt v. Pennsylvania R. R. Co., 57 Penn. St. 475.

master himself, the latter is responsible for the injury, on the same general grounds and for the same reasons which would render him liable for a like negligent injury to a stranger.

In considering this proposition, it may.be remarked:

I. That the master's negligence may consist in subjecting the servant to the dangers of unsafe buildings or machinery, or to other perils on his own premises, which the servant neither knew of nor had reason to anticipate or to provide against when he entered the employment, or subsequently.

The general rule is, that while the owner of real estate is not bound to provide safeguards for wrong-doers, he is bound to take care that those who come upon his premises by his express or implied invitation be protected against injury resulting from the unsafe condition of the premises, or from other perils, the existence of which the invited party had no reason to look for. Thus, a railroad company has been held liable to one who was invited by a signal from its flagman to cross its track, on the supposition that it was clear, and was injured while so doing by a passing train. So a brewer was held liable to a customer who came to do business with him, and fell through an unguarded trap door."

The invitation to a servant to come upon dangerous premises without apprising him of the danger is just as culpable, and an injury resulting from it is just as deserving of compensation in the case of a servant as in any other case. Moreover, no reason of public policy and none to be deduced from the contract of the parties, can be suggested, which should relieve the culpable master from responsibility. cannot be understood as contracting to take upon himself risks which he neither knows or suspects, nor has reason to look for; and it would be more reasonable to imply a contract on the part of the master not to invite the servant into unknown dangers, than one on the part of the servant to run the risk of them. But the question of contract

A man

Sweeny

V.

v. Pray, Id. 378.

Old Colony etc. R. R. Co., 10 Allen, 368. See Elliott

9 Chapman v. Rothwell, El. Bl. & El. 168. See also Freer v. Cameron,

4 Rich. 228.

may be put entirely aside from the case, and the responsibility of the master may be planted on the same ground which would render him responsible if the relation had not existed. Whether invited upon his premises by the contract of service, or by the calls of business, or by direct request, is immaterial; the party extending the invitation owes a duty to the party accepting it, to see that at least ordinary care and prudence is exercised to protect him against dangers not within his knowledge, and not open to observation. It is a rule of justice and right which compels the master to respond for a failure to exercise this care and prudence.10

The terms in which the proposition has been stated will exempt the master from responsibility in all cases where the risks were apparent, and were voluntarily assumed by a person capable of understanding and appreciating them. No employer, by any implied contract, undertakes that his buildings are safe beyond a contingency, or even that they are as safe as those of his neighbors, or that accidents shall not result to those in his service from risks which perhaps others would guard against more effectually than it is done by him.

10 Marshall v. Stewart, 2 Macq. H. L. 20; s. c 33 Eng. L. & Eq. 1; Indermaur v. Dames, L. R. 2 C. P. 311; Ryan v. Fowler, 24 N. Y. 410; Strahlendorf v. Rosenthal, 30 Wis. 674; Perry v. Marsh, 25 Ala. 659 ; Schooner Norway v. Jenson, 52 Ill. 373; Walsh v. Peet Valve Co., 110 Mass. 23; Holmes v. Northeastern Railway Co., Law R. 4 Exch. 254; S. C. affirmed, L. R. 6 Exch. 123; Mellers v. Shaw, I Best & Smith, 437.

The rule has been applied against railroad companies, in the case of injuries to their servants in consequence of the road-bed being out of repair. See Snow v. Housatonic R. R. Co., 8 Allen, 441. "There is no rule better settled than this: that it is the duty of railroad companies to keep their roads 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. They are bound to furnish a safe road, and sufficient and safe machinery and cars." Breese, Ch. J., in Chicago etc. R. R. Co. v. Swett, 45 Ill. 197, 203. But a railroad company is not liable to one of its employees for an injury occasioned by a latent defect in one of its bridges, where the company employed competent persons to supervise and inspect the bridge, by whom the defect was not discovered. Warner v. Erie Railway Co., 39 N. Y. 468.