It is a well-settled principle of the law that the employer or master is not liable for injuries suffered by one employee solely through the carelessness or negligence of another employee of the same master engaged in the same general busi

ness.

Each employee engaged with others in the service of a common master takes upon himself the liability to injury resulting from the negligence of his co-employees. The hazard is incident to the nature of the employment into which he enters, and in respect to which the master is not an insurer, in the absence of an express contract to that effect. Nor is the master liable by the fact that the employee receiving the injury is inferior in grade of employment to the party by whose negligence the injury is caused, if both are employed in the same general business, or in other words, "if the services of each in his particular sphere or department are directed to the accomplishment of the same general end": Warner v. Erie R'y Co., recently decided by the court of appeals of New York, and reported in 39 N. Y. 468; Priestly v. Fowler, 3 Mees. & W. 1; Coon v. Utica etc. R. R. Co., 5 Id. 492; Albro v. Agawam Canal Co., 6 Cush. 75.

In Gillenwater v. Madison etc. R. R. Co., 5 Ind. 339 [61 Am. Dec. 101], and Fitzpatrick v. New Albany etc. R. R. Co., 7 Id. 436, it was held that a railroad company is liable to a servant for an injury occasioned by the negligence of other servants of the company, where the duties of the latter, in connection with which the injury happens, are not common or in the same department with those of the injured servant, and where the negligence of the latter has not contributed to produce the injury. But this limitation of the exemption of the company from liability in such cases is not recognized in any of the subsequent cases; and it is now settled in this state that the employer is not liable for an injury to one employee, occasioned by the negligence of another engaged in the same general undertaking: Ohio etc. R. R. Co. v. Tindall, 13 Ind. 366 [74 Am. Dec. 259]; Wilson v. Madison etc. R. R. Co., 18 Id. 226; Stattery v. Toledo etc. R'y Co., 23 Id. 81; Ohio etc. R. R. Co. v. Hammersley, 28 Id. 371. In Slattery v. Toledo etc. R. R. Co., supra, Worden, J., quotes with approbation from the decision. in Wright v. New York Central R. R. Co., 25 N. Y. 562, as follows: "Neither is it necessary, in order to bring a case within the general rule of exemption, that the servants, the one that suffers and the one that causes the injury, should be at the

time engaged in the same operation or particular work. It is enough that they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties and services tending to accomplish the same general purposes, as in maintaining and operating a railroad, operating a factory, working a mine, or erecting a building. The question is whether they are under the same general control."

To the same effect is the case of Manville v. Cleveland etc. R. R. Co., 11 Ohio St. 417, where it is said that "those employed in facilitating the running of the trains, by ballasting the track, removing obstructions, and those employed at stations, attending to switches, and other duties of a like nature upon the road, as well as those upon the trains, operating, may all be well regarded as fellow-servants in the common service."

In the case at bar, Losee, as master-machinist, had the immediate charge, control, and direction of the machinery, and of its repairs, as well as the control and direction of the engineers and firemen on the trains.

He and the deceased were both employees of the appellant, engaged in the same general undertaking, operating the road, -indeed, in the same department, the one serving under the immediate direction and control of the other. They were fellow-servants, and the appellant is not responsible for an injury to the one caused by the negligence of the other.

But it is insisted that the appellant was bound to the employees to furnish the road with sound and safe machinery, and to keep it in safe repair and condition, and if the explosion of the boiler and the death of the deceased were caused by the use of the engine when in an unsafe condition, the fault is attributable to the appellant, and the plaintiff is entitled to recover. We do not think this position is sound in principle, or sustained by the weight of authority, though cases may be found to support it.

The board of directors of a railroad company are its immediate representatives, and occupy the relation of master to the various employees engaged in operating the road and superintending and performing the business of the company in its various departments. When an injury results to a passenger on a train, or to a stranger, from the negligence or carelessness of an employee in the discharge of the duties devolving upon him, the principle of respondeat superior applies, and the

company is responsible in damages; but this principle does not apply as between the company and its employees, and in such cases the company can only be held responsible to the employee where the injury is caused by the negligence or failure of the board of directors to perform some duty devolved upon them by express contract with the employee, or which is implied from the duties devolving upon them in their relation of master to the employee. The directors of such a corporation, from the very nature of the organization and the business in which it is engaged, are not expected personally to superintend the various operations of the road. There is no implied obligation that they should do so; nor is it to be presumed. that they are selected with a view to their qualifications and skill for the performance of many of the duties required in constructing, equipping, and operating the road. The master is not liable to his servant, unless there be negligence on the part of the master in that which the master has contracted or undertaken, either expressly or impliedly, to do.

It is the duty of such a corporation to use every reasonable care in the proper construction of its road, and in supplying it with the necessary equipment, including properly constructed engines, and the necessary and proper materials for its repair, and the selection of competent, skillful, and trusty subordinates to supervise, inspect, repair, and regulate the machinery, and to regulate and control the operations of the

If these duties are performed with care and diligence by the directors, and one of the persons so employed is guilty of negligence by which an injury occurs to another, it is not the negligence of the directors, or master, and the company is not responsible. This position is sustained by the rulings of this court in Chicago etc. R. R. Co. v. Harney, 28 Ind. 28 [92 Am. Dec. 282], and Ohio etc. R. R. Co. v. Hammersley, 28 Id. 371.

In the case of Warner v. Erie R'y Co., 39 N. Y. 468, the action was brought to recover damages arising from a personal injury which resulted in the death of one of the defendant's employees, a baggageman, on a train which was precipitated. into a stream by the falling of a bridge. The jury found that the bridge fell from decay in its timbers. The bridge was properly constructed, and was originally of sufficient strength for the purposes for which it was intended. It was held that the company was not liable, in the absence of proof that the

directors of the company had notice of the unsafe condition of the bridge.

The case of Wilson v. Merry, decided in the English house of lords, in May, 1865, and reported in L. R. 3 App. 326, is said to be a very instructive case on this subject. The report containing the case is not in our reach, but we find a somewhat comprehensive notice of it in Warner v. Erie R'y Co., supra, the substance of which is as follows:

It was a Scotch appeal in a case where a verdict had been recovered against the proprietors of a coal mine, for the death of a party occasioned, as was alleged, by the defective construction of a scaffold in the mine. "The case turned upon the liability of the master for an injury to his employee, where the master did not personally superintend the work, but devolved it upon a suitable mechanic or foreman, superior in grade to the injured employee. Opinions were given by the lord chancellor, Lord Cairns, and by the ex-chancellors, Lord Cranworth and Lord Chelmsford, all substantially concurring in the conclusion that the duty of the master was to select proper and competent persons to do the work, and furnish them with adequate materials and resources for its accomplishment; and when he had done that, he had performed his whole duty. In the course of his opinion, Lord Cairns says: 'The master is not and cannot be liable to his servant, unless there be negligence on the part of the master, in that which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business, but to select proper and competent persons to do so, and furnish them with adequate materials and resources for the work.' He adds: If the persons so selected are guilty of negligence, this is not any negligence of the master; and if an accident occurs to a workman to-day, in consequence of the negligence of another workman, skillful and competent, who was formerly but is no longer in the employment of the master, the master is not liable, although the two cannot technically be described as fellow-workmen; negligence cannot exist, if the master does his best to supply competent persons. He cannot warrant the competency of his servants'": See also Wright v. New York Central R. R. Co., 25 N. Y. 562.

One of the cases cited by the appellee, and much relied on to sustain the rulings of the court below, is that of Warner v. Erie R'y Co., 49 Barb. 558, in the supreme court of New York;

but that case, as we have seen, was subsequently reversed by the court of appeals, on the very point to which it is cited as authority: 39 N. Y. 468.

Here the evidence conclusively shows that Losee was skillful and competent, and that the shop of the appellant at Indianapolis was furnished with all the necessary appliances, and with adequate materials and resources, and skillful workmen to keep the machinery in repair.

Notice to the directors of the company that the engine was out of repair and unsafe for use would not of itself be sufficient to render the company liable. Such machinery is often liable to get out of repair and become unsafe. The directors did not, in person, superintend its repairs or direct its use, but devolved these duties on a skillful, competent, and trustworthy mastermachinist, and furnished him with adequate materials and resources for its repair. They did not direct or authorize its use when in an unsafe condition, and are not responsible for its use in that condition, in the absence of notice that it was being so used. But there was no evidence even tending to prove that the directors of the company had any notice that the engine was in an unsafe condition, or that it was being so used.

We have discussed the questions involved in the case on the hypothesis that the engine was defective and unsafe, and was carelessly put into the service in that condition by Losee, and that the explosion was caused by the defective condition of the engine, and without any fault or negligence on the part of the deceased, or of the engineer in charge; but we are by no means satisfied that the evidence justifies such a conclusion. It was a rule of the service, that when an engine was out of repair, rendering it unsafe or unfit for the service required, the engineer in charge should report the fact promptly to the mastermachinist. No such report was made as to engine No. 16, nor was there any evidence that the master-machinist had any notice in fact that it was in an unsafe condition or needed repairs; whilst the engineer who had been in charge of and daily used it for months, and up to the day on which the deceased was placed on it as fireman, testified that it was a good machine, in a safe condition, and in good repair the day before the accident. The only evidence to the contrary was that of the engineer in charge of it on the day of the explosion, who testified that the boiler was leaking at the flues, in the flue-sheet; but the explosion is not ascribed to that cause. He

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