Bowler, 9 Heisk. 866; the foreman in charge of a distinct piece of work in an extensive foundry, and having control of the laborers and the labor: Dowling v. Allen, 74 Mo. 13; S. C., 41 Am. Rep. 298; the master of a steamvessel and a fireman: The Clatsop Chief, 7 Saw. 274; the mate and deckhand of a vessel: Daub v. Northern Pacific R. R., 18 Fed. Rep. 625; and the general superintendent, or foreman in full charge of the road, is not a fellow-servant with the conductors: Patterson v. Pittsburgh etc. R. R., 76 Pa. St. 389; S. C., 18 Am. Rep. 412.

APPLICATION TO PARTICULAR CIRCUMSTANCES.-In examining the great number of conflicting decisions of the courts in applying the general rule, we find that the great diversity of opinion has arisen from the standpoint at which the courts consider the relative status of the servants in their employment. Leaving the class of cases already discussed, in which the question of inferior and superior grades of servants caused the divergence in the decisions, we come to a class of cases where the master's liability is determined from the nature and kind of service performed by the servants, the decisions being in the main based upon the question whether or not the services rendered belong to the same or separate and distinct departments of the master's general business, having no necessary connection with each other. Many able judges hold that this difference in the class or kind of service makes no difference in the application of the rule, while others equally as able, and perhaps with more reason and justice, base the master's liability alone upon this difference in the nature and kind of service.

The reason upon which the latter base their decisions is well stated by Stuart, J., as follows: "One is not a fellow-servant with another who has no participation in duties the neglect of which contributed to the injury complained of, but whose duties belong to a distinct department:" Gillenwater v. Madison etc. R. R., 5 Ind. 339; S. C., 61 Am. Dec. 101; in which case it is held that a carpenter building bridges for a railroad company is not a fellowservant of those employed in the management of the company's train while traveling on such train by direction of the company in order to assist at another place in loading bridge-timber. So where the service of the workmen is divided into different departments and each department is committed to distinct bodies of workmen, workmen in the different departments are not fellow-servants: Holton v. Daly, 4 Ill. App. 25; so a day-laborer on a railroad track is not a fellow-servant of an engineer, they not being associated with each other in the performance of their respective duties: Toledo etc. Ry v. O'Connor, 77 Ill. 391; Louisville etc. R. R. v. Collins, 2 Duv. 114; nor is a draughtsman in locomotive-works and a carpenter employed in making repairs about the premises fellow-servants: Baird v. Pettit, 70 Pa. St. 477, 482, 483; nor a carpenter employed in the defendant's shop and an engineer, their employments being dissimilar and separate: Ryan v. Chicago etc. R. R., 60 Ill. 171; S. C., 14 Am. Rep. 32; nor brakemen and those in charge of construction and repair of track: Chicago etc. R'y v. Gregory, 58 Ill. 272; in which case a brakeman was injured by being struck by a "mail-catcher" placed too near the track: Atchison etc. R. R. v. Moore, 31 Kan. 197; Vantrain v. St. Louis Iron Mountain etc. R'y, 8 Mo. App. 538; the same applies to the engineer, fireman, or conductor and the track repairers: Chicago etc. R'y v. Moranda, 93 Ill. 302, 324; S. C., 34 Am. Rep. 168; Dick v. I. C. & L. R. R., 38 Ohio St. 389; Lewis v. St. Louis etc. R. R., 49 Mo. 495; S. C., 21 Am. Rep. 385; a train dispatcher or train-master is not a fellow-servant of a locomotive engineer: Crew v. St. Louis etc. R'y, 20 Fed. Rep. 87; and a person employed to load and unload freight at the freight-depot of a railroad com

AM. DEC. VOL. LXVII-38

pany and a switchman are not fellow-servants: Chicago etc. R'y v. Henry, 7 Ill. App. 322.

On the other hand, the former, basing their opinions on the argument that the servants are, nevertheless, employed in the furtherance of the same general business, hold the master not liable for negligence of an employee in one department of service resulting in injury to an employee in another and distinct department of the same general enterprise: Morgan v. Vale of Neath R'y, 5 Best & S. 570, 580; S. C., 33 L. J. Q. B. 260; in which case it is held that a carpenter at work on a shed near a turn-table, both belonging to the defendant, being injured by negligence of the trainmen in turning an engine on the turn-table, could not hold the common employer liable; and a bridge carpenter on the defendant's railroad, being required in the discharge of his duties to go upon the defendant's train, is regarded as engaged in the operation" of the railroad, and for injuries to him from negligence of the trainmen the master is not liable: Shroeder v. Chicago etc. R'y, 47 Iowa, 375; so with the operatives in a mill and those whose duty it is to keep the fire-extinguishing apparatus in working order: Jones v. Granite Mills, 126 Mass. 84; the boiler-makers and those whose duty it is to finish and test the boilers: Murphy v. Boston etc. R. R., 88 N. Y. 146; S. C., 8 Abb. N. C. 41; 59 How. Pr. 197; 42 Am. Rep. 240; a surveyor in the service of the defendant, injured by the negligence of the men in charge of the train while going to his place of employment on the defendant's train: Ross v. N. Y. etc. R. R., 5 Hun, 488; a fireman or an engineer on an engine and those whose duty it was to put the engine in condition for the road and keep it in repair: Mobile etc. R. R. v. Thomas, 42 Ala. 672; Columbus etc. R'y v. Arnold, 31 Ind. 174; Hubgh v. N. O. etc. R. R., 6 La. Ann. 495; S. C., 54 Am. Dec. 565; Shanck v. Northern etc. R'y, 25 Md. 462; Wonder v. Baltimore etc. R. R., 32 Id. 411; S. C., 3 Am. Rep. 143; Hard v. Vermont etc. R. R., 32 Vt. 473; an inspector of cars and brakeman: Chicago etc. R'y v. Bragonier, 11 Ill. App. 516; Smith v. Potter, 46 Mich. 258; S. C., 41 Am. Rep. 161; Columbus etc. R. R. v. Webb, 12 Ohio St. 475; a man whose duty it is to see that the roof of a mine was properly supported and the miners in the mine: Froughear v. Lower Vein Coal Co., 62 Iowa, 576; Hall v. Johnson, 3 H. & C. 589; S. C., 11 Jur., N. S., 180; 34 L. J. Ex. 222; 13 Week. Rep. 411; 11 L. T., N. S., 799; a head brakeman and a yard-master: Besel v. N. Y. etc. R. R., 70 N. Y. 171; a train guard on a train and the foreman of a gang of track layers: Waller v. South Eastern R'y, 2 H. & C. 102; track layers engaged in building a temporary track to a gravel pit, and the shovelers attached to the gravel train: Lovegrove v. London etc. R'y, 16 C. B., N. S., 669; a person whose only duty was to bring a boat to the wharf at a warehouse, there to be loaded by other employees of the same master, and those engaged in loading the boat: Lavell v. Howell, 1 C. P. Div. 161; S. C., 45 L. J. 387.

The conflict between these two lines of decision seems to cease in the final result arrived at by the courts, though their reasoning in arriving at the result is as conflicting as ever, when we come to another class of cases in which the general rule is uniformly applied. Whenever the servants are manifestly in the same common service, and engaged upon the same class or kind of work, there is no conflict. These two conflicting lines of decisions, uniting in this particular in their results, gives rise to a class of cases in which the one line either assumes or decides that the employment is one of a consociation of duties, and the other line simply applies the rule to all who are working for the same master to accomplish the general result. Conformably with the foregoing, the following cases hold that those mentioned are fellow-ser

vants within the operation of the general rule: Engineer and brakeman on the same train: Summerhays v. Kan. Pac. R'y, 2 Col. 484; Pittsburgh etc. R. R'y v. Lewis, 33 Ohio St. 196; engineer, brakeman, and shovelers on a construction train: St. Louis etc. R. R. v. Britz, 72 Ill. 256; engineer and brakeman in the employ of the same company: Louisville etc. R. R. v. Robinson, 4 Bush, 507; Moran v. N. Y. etc. R. R., 3 Thomp. & C. 270; S. C., 67 Barb. 96; Pittsburg etc. R'y v. Devinney, 17 Ohio St. 197; Pittsburgh etc. R'y v. Ranney, 37 Id. 665; fireman and brakeman: Greenwald v. Maraquette etc. R. R., 49 Mich. 197; Kersey v. Kansas City etc. R. R., 79 Mo. 362; fireman and engineer: Jordan v. Wells, 3 Woods, 527; laborer on a construction train engaged in unloading iron and the engineer of the train: Chicago etc. R'y v. Keefe, 47 Ill. 108, holding that the duties that attached the laborer to the train made him a part of its equipment; track repairers and those engaged in running the trains: Gormley v. Ohio etc. R'y, 72 Ind. 31; track repairers cannot recover for injury caused by the failure of an engineer and a fireman to light the head-light of the engine: Pennsylvania R. R. v. Wachter, 60 Id. 395; Collins v. St. Paul etc. R. R., 30 Minn. 31; so a station-agent having general charge of the tracks at the station is a fellow-servant with the trainmen running trains over those tracks: Brown v. Minneapolis etc. R'y, 31 Id. 533; Evans v. Atlantic etc. R. R., 62 Mo. 49; so a sectionman traveling over the road on a hand-car in the line of his duty is a fellow-servant of the engineers and conductors of the company's trains: Blake v. Maine Central R. R., 70 Me. 60; S. C., 35 Am. Rep. 297; and a day-laborer in the defendant's shops and the man employed in running the steam-hammer: Hawrathy v. Northern etc. R. R., 46 Md. 280; S. S., 5 Rep. 698; so a carpenter who raises a staging to enable a plumber to put a gutter on a building and the plumber in using the scaffolding are fellow-servants, if employed by same employer: Killea v. Faxon, 125 Mass. 485; so a car inspector and a yard switchman, whose duty it was to send cars needing repairs to the shop, are fellow-servants: Gibson v. Northern Cent. R'y, 22 Hun, 289; a telegraph operator who receives and transmits telegraphic orders to engineer of an "extra:" Dana v. N. Y. Cent. R. R., 23 Id. 473; one engaged in coupling and uncoupling the cars on a train and the engineer and conductor of the same train: Wilson v. Madison etc. R. R., 18 Ind. 226; a yard hand whose duty it is to perform such work as the foreman should require and one employed in stripping engines, when the foreman has ordered the yard hand to assist the stripper: Chicago etc. R'y v. Schenring, 4 Ill. App. 533; the engineer and conductor of a wood train engaged in moving wood for the company under contract with a contractor and the men employed by the contractor: Illinois etc. R. R. v. Cox, 21 Ill. 20; a station-master having charge of making up of trains and a brakeman on a train made up by direction of sta tion-master: Hodykins v. Eastern R. R., 119 Mass. 419; a locomotive engineer and a switchman on the track over which he runs: Brown v. Central Pacific R. R., 6 West Coast Rep. 797 (Cal.); Smith v. Memphis etc. R. R., 18 Fed. Rep. 304; a brakeman and a switchman on same road: Slattery v. Toledo ete. R'y, 23 Ind. 81; fireman and a switchman: Tinney v. Boston etc. R. R., 52 N. Y. 632; Harvey v. N. Y. Cent. etc. R. R., 88 N. Y. 481; the engineer of an elevator and the other employees whose duties required them to use the elevator: Stringham v. Stewart, 27 Hun, 562; S. C., 64 How. Pr. 5; the engineer of hoisting-works, used in raising and lowering men and materials in the sinking of a shaft, is a fellow-servant of the men in the shaft engaged in excavating and loading the rock to be hoisted: Buckley v. Gould & Curry S. M. Co., 8 Saw. 394; S. C., 14 Fed. Rep. 833; Bartonshill Coal Co. v. Reid, 3 Macq. 236; S. C., 4 Jur., N. S., 767; in which latter case the ground of the decision

was that the engineer and miners were engaged by the same master in the common enterprise of getting coal to the surface of the ground, and hence were fellow-servants within the rule; so miners who are engaged in a mine in breaking down the ore with picks, and by blasting, are fellow-servants with those who load it into barrows and wheel it away, being engaged in the same line of employment: Keilley v. Belcher S. M. Co., 3 Saw. 500; and a switchman in railroad yard having charge of moving the cars from one switch to another and the engineer of the yard engine: Columbus etc. R. R. v. Troesch, 68 Ill. 545; S. C., 18 Am. Rep. 578; Satterly v. Morgan, 35 La. Ann. 1166; a brakeman employed in turning a switch on one track is a fellow-servant, within the rule, of an engineer of the same corporation upon an adjacent track in the same yard: Randall v. Baltimore etc. R. R., 109 U. S. 478; a private detective employed by defendant, who is injured while walking along the track in performance of his duties, is a fellow-servant of the men in charge of the trains of the defendant: Pyne v. Chicago etc. R'y, 54 Iowa, 223; S. C., 37 Am. Rep. 198; a person engaged in carrying water to the laborers on a construction train, and to assist in gathering up the tools, is a fellow-servant of the laborers: Missouri Pac. R'y v. Haley, 25 Kan. 35; but under the act of February 26, 1874, the master is liable for injury done to him by the laborers. But a pilot, whom the owner of a ship is bound by law to employ, does not take upon himself the risk of injury from the negligence of one of the crew: Smith v. Steele, L. R. 10 Q. B. 125; S. C., 44 L. J. Q. B. 60; and in Louisville etc. R. R. v. Yandell, 17 B. Mon. 586, it was held that the general rule had no application when slaves were employed under contract with their owner.

WHEN INJURED SERVANT IS MINOR, the application of the general rule is, with the limitation hereafter given, the same as in case of persons of mature years: Ohio etc. R. R. v. Tindall, 13 Ind. 366; Brown v. Maxwell, 6 Hill, 592; S. C., 41 Am. Dec. 771. But in applying the rule, regard must be had to the capacity and understanding of the minor, it appearing to be settled that he can be held to no greater degree of intelligence and capacity than his youth, inexperience, and want of judgment, as known to his employer, would warrant: St. Louis etc. R'y v. Valiviers, 56 Ind. 511; as in the employment of a minor as a brakeman on a railroad train, it was held that the company was liable for any injury to him by the negligence of his fellow-employees if he did not have sufficient discretion to comprehend the dangers of the employment: Hamilton v. Galveston etc. R'y, 54 Tex. 556; and if a young person is employed about dangerous machinery, being unacquainted with its nature and use, the employer is bound to take care that the child is duly instructed therein, and if this is neglected, or the foreman directs the machinery to be used in a dangerous manner, of which the young person is not likely to be fully aware, the employer is liable for any injury to the young person from such use of the machinery: Grizzle v. Frost, 3 F. & F. 622; in which case a young child was set to work removing the cans placed to receive hemp from a carding-machine when they became filled, and to replace them with empty The machine had revolving rollers run by steam, and there was no means of quickly stopping the machine. The foreman directed her to pick up some pieces of hemp that had fallen on the floor and place them in the rollers; in doing so her hand was caught in the rollers, and before the machine could be stopped, owing to the lack of proper means for stopping it, her arm was badly injured. In a case where a boy of tender years, engaged as a helper in a machine-shop of the defendant, was ordered by the superintendent to go up a ladder among dangerous belts in order to adjust a belt, and having received serious injury in attempting to obey the order, the question

cans.

of his capacity and experience having been submitted to a jury, and the jury finding that it was highly dangerous to send a boy of his age and experience among those belts, the court held that the question of fellow-employment could not be raised in the case, putting the decision on the ground that the boy's contract of service did not include such service, and in entering the service of the company he took only the risks incident to his contract of employment, and that on account of his youth he could not be expected to know the danger of obeying the orders of the superintendent: Railroad Co. v. Fort, 17 Wall. 553. Whether the minor is of sufficient capacity and experience to know the hazards of any given employment is a question for the jury: Hayden v. Smithfield Mfg. Co., 29 Conn. 548. But a boy fourteen years of age, having had two and a half years' experience, cannot recover for injury suffered in consequence of the negligence of a fellow-employee: Curran v. Merchants' Mfg. Co., 130 Mass 374; S. C., 39 Am. Rep. 457.

VOLUNTEER ASSISTING SERVANT OF ANOTHER.-A person voluntarily assisting the servant of another in the performance of his duties, either gratuitously or at the request of the servant, cannot recover against the master for any injury received while so assisting in consequence of the servant's negligence: Osborne v. Knox etc. R. R., 68 Me. 49. Accordingly it was held that where the servants of a railroad company were turning a truck on a turntable, the plaintiff's intestate volunteered to assist, and while so engaged was injured by reason of the careless running of an engine against the truck, the railroad company was not liable, as by so volunteering he could not impose a greater obligation on the company than it owed to its hired servants: Degg v. Midland R'y, 1 H. & N. 773; S. C., 3 Jur., N. S., 395; 26 L. J. Exch. 171. So where the defendant's porters were engaged in lowering bales of cotton from his warehouse into his wagon, which was also in charge of servants of the defendant, the plaintiff, being in a hurry to receive a load of cotton, at the request of the defendant's servants assisted them in the work of receiving the bales into defendant's wagon, and while so assisting he was injured by the falling of a bale of cotton on him in consequence of the negligence of defendant's porters, it was held that there could be no recovery: Potter v. Faulkner, 1 Best & S. 800; S. C., 8 Jur., N. S., 259; 31 L. J. Q. B. 30; 10 Week. Rep. 93; 5 L. T., N. S., 455. But where the plaintiff volunteered to and assisted the defendant's servants in the delivery of the plaintiff's heifer, in the absence of a sufficient number of the defendant's men to shunt the horse-box to the siding from which aloue the heifer could be delivered, and while so doing was injured by reason of the negligence of other employees of the defendant in allowing the train to come out of the siding, it was held, in Wright v. London etc. R. R., L. R. 1 Q. B. Div. 252, that the plaintiff was not a "mere" volunteer, and was entitled to recover, he being on the defendant's premises by consent for the purpose of expediting the delivery of his own stock.

SHERFEY V. BARTLEY.

[4 SNEED, 58.]

IT IS NO DEFENSE TO ACTION FOR INJURY FROM BITE OF VICIOUS DOG THAT PLAINTIFF WAS TRESPASSER at the time upon the land, if the owner of the dog, knowing of the propensities of the dog, permits it to run at large.

ACTION for damages. The opinion states the facts.