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& L. R. Co. v. Martin, 31 Ind. App. 308, 65 | Gerrish v. New Haven Ice Co. 63 Conn. 9, N. E. 591; Michael v. Roanoke Mach. 27 Atl. 235; Schroder v. Chicago & A. R. Works, 90 Va. 492, 44 Am. St. Rep. 927, 19 Co. 108 Mo. 322, 18 L. R. A. 827, 18 S. W. S. E. 261. 1094; Carlson V. Northwestern Teleph. Exch. Co. 63 Minn. 428, 65 N. W. 914; Rahman v. Minnesota & N. W. R. Co. 43 Minn. 42, 44 N. W. 522; Hannibal & St. J. R. Co. v. Fox, 31 Kan. 586, 3 Pac. 320.

A servant who was obeying a specific order of his superior in charge "had the right to assume, in the absence of warning or notice to the contrary, that in conforming to the order he would not be subjected to injury."

The master must respond herein because he absolutely failed to take any precaution whatever to keep the plaintiff's working place safe after he had specifically ordered him to do this particular work at this particular place.

Taylor v. Evansville & T. H. R. Co. 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. Rep. 372, 22 N. E. 876; Nall v. Louisville, N. A. & C. R. Co. 129 Ind. 260, 28 N. E. 183, 611. In ordering the appellant to work at this particular place, Haines was performing the master's duty.

Lebanon v. McCoy, 12 Ind. App. 500, 40 N. E. 700; Noblesville Foundry & Mach. Co. v. Yeaman, 3 Ind. App. 521, 30 N. E. 10; Taylor v. Evansville & T. H. R. Co. 121 Ind. 126, 6 L. R. A. 584, 16 Am. St. Rep. 372, 22 N. E. 876; McMahon v. Ida Min. Co. 95 Wis. 308, 60 Am. St. Rep. 117, 70 N. W. 478; Miller v. Missouri P. R. Co. 109 Mo. 350, 32 Am. St. Rep. 673, 19 S. W. 58; Schrader v. Chicago & A. R. Co. 108 Mo. 322, 18 L. R. A. 827, 18 S. W. 1094; Carlson v. Northwestern Teleph. Exch. Co. 63 Minn. 428, 65 N. W. 915; Shearm. & Redf. Neg. last ed. §§ 204-233.

Republic Iron & Steel Co. v. Berkes, 162 Ind. 517, 70 N. E. 815.

Messrs. Elmer E. Stevenson and Edward H. Knight, for appellee:

The appellant and E. A. Haines, the foreman whose negligence is complained of, are shown by the evidence to have been engaged in the performance of a common service for the master at the time of the accident to appellant, and they were therefore fellow servants.

Smallwood v. Bedford Quarries Co. 28 Ind. App. 692, 63 N. E. 869; Standard Cement Co. v. Minor, 27 Ind. App. 479, 61 N. E. 684; Salem Stone & Lime Co. v. Chastain, 9 Ind. App. 453, 36 N. E. 910; Peirce v. Oliver, 18 Ind. App. 87, 47 N. E. 485; American Teleph. & Teleg. Co. v. Bower, 20 Ind. App. 32, 49 N. E. 182; Kerner v. Baltimore & O. 8. W. R. Co. 149 Ind. 21, 48 N. E. 364; Ross v. Union Cement & Lime Co. 25 Ind. App. 463, 58 N. E. 500; Southern Indiana R. Co. v. Martin, 160 Ind. 280, 66 N. E. 886; Brazil & C. Coal Co. v. Cain, 98 Ind. 282; Louisville, N. A. & C. R. Co. v. Isoin, 10 Ind. App. 691, 38 N. E. 423; Indianapolis & St. L. R. Co. v. Johnson, 102 Ind. 352, 26 N. E. 200; Capper v. Louisrille, E. & St. L. R. Co. 103 Ind. 305, 2 N. E. 749; Conley v. Portland, 78 Me. 217, 3 Atl. 658; Reese v. Biddle, 112 Pa. 72, 3 Atl. 813; McLaughlin v. Camden Iron Works, 60 N. J. L. 557, 38 Atl. 677; Morgridge v. Providence Teleph. Co. 20 R. I. 386, 78 Am. St. Rep. 879, 39 Atl. 328; Kelly v. Hogan, 37 Misc. 761, 76 N. Y. Supp. 913; New Pittsburgh Coal & Coke Co. v. Peterson, 14 Ind. App. 634, 43 N. E. 270, 136 Ind. 398, 43 Am. St. Rep. 327, 35 N. E. 7; Elliott, Railroads, § 222; Brothers v. Cartter, 52 Mo. 373, 14 Am. Rep. 424; McDermott v. Boston, 133 Mass. 349; Perigo v. Indianapolis Brewing Co. 21 Ind. App. 338, 52 N. E. 462; Cincinnati, H. & D. R.

Having ordered plaintiff to do this particular work at this particular place, defendant had no right, by his negligence, to make the place unsafe and dangerous for the work, and the hazard of his master's negligence, of which he was ignorant, cannot be imposed upon plaintiff.

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Taylor v. Evansville & T. H. R. Co. 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. Rep. 372, 22 N. E. 876; Louisville, N. A. & C. R. Co. v. Graham, 124 Ind. 89, 24 N. E. 668; Nall v. Louisville, N. A. & C. R. Co. 129 Ind. 260, 28 N. E. 183, 611; Louisville, E. & St. L. Consol. R. Co. v. Hanning, 131 Ind. 528, 31 Am. St. Rep. 443, 31 N. E. 187; Evansville & T. H. R. Co. v. Holcomb, 9 Ind. App. 198, 36 N. E. 39; G. H. Hammond Co. v. Mason, 12 Ind. App. 469, 40 N. E. 642; Noblesville Foundry & Mach. Co. v. Yeaman, 3 Ind. App. 521, 30 N. E. 10; Lebanon v. McCoy, 12 Ind. App. 500, 40 N. E. 700; Island Coal Co. v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, 65 N. E. 1026; Gould Steel Co. v. Richards, 30 Ind. App. 348, 66 N. E. 68; Southern Indiana R. Co. v. Harrell (Ind. App.) 66 N. E. 1016; Herdler v. Buck's Stove & Range Co. 136 Mo. 3, 37 S. W. 115; Michael v. Roanoke Mach. Co. v. Voght, 26 Ind. App. 665, 60 N. E. Works, 90 Va. 492, 44 Am. St. Rep. 927, 19797; Maher v. Thropp, 59 N. J. L. 186, 35 S. E. 261; McMahon v. Ida Min. Co. 95 Atl. 1057; Fraker v. St. Paul, M. & M. R. Wis. 308, 60 Am. St. Rep. 117, 70 N. W. Co. 32 Minn. 54, 19 N. W. 349; Justice v. 478; Miller v. Missouri P. R. Co. 109 Mo. Pennsylvania Co. 130 Ind. 321, 30 N. E. 350, 32 Am. St. Rep. 673, 19 S. W. 58; 303; Houser v. Chicago, R. I. & P. R. Co.

60 Iowa, 230, 46 Am. Rep. 65, 14 N. W. | Atl. 324; McGinty v. Athol Reservoir Co. 778; Taylor v. Evansville & T. H. R. Co. 155 Mass. 183, 29 N. E. 510; Lothrop v. 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. Fitchburg R. Co. 150 Mass. 423, 23 N. E. Rep. 372, 22 N. E. 876; Northern P. R. Co. 227; Howard v. Hood, 155 Mass. 391, 29 N. v. Peterson, 162 U. S. 346, 40 L. ed. 994, E. 630; Johnson v. Boston Tow-Boat Co. 16 Sup. Ct. Rep. 843. 135 Mass. 209, 46 Am. Rep. 458; O'Keefe v. Brownell, 156 Mass. 131, 30 N. E. 479; Columbus & I. C. R. Co. v. Arnold, 31 Ind. 174, 99 Am. Dec. 615; Neutz v. Jackson Hill Coal & Coke Co. 139 Ind. 411, 38 N. E. 324, 39 N. E. 147; Robertson v. Chicago & E. R. Co. 146 Ind. 486, 45 N. E. 655; Southern Indiana R. Co. v. Martin, 160 Ind. 280, 66 N. E. 886; Ross v. Union Cement & Lime Co. 25 Ind. App. 463, 58 N. E. 500; Meehan v. Speirs Mfg. Co. 172 Mass. 375, 52 N. E. 518; Peirce v. Oliver, 18 Ind. App. 87, 47 N. E. 485; Chicago, B. & Q. R. Co. v. Abend, 7 11. App. 130.

A foreman is a fellow servant of those working with him; and for the foreman's negligence in the discharge of those duties owing by him to the master, resulting in injury to a servant working with such foreman, the master is not liable.

A master is not chargeable with negligence on account of a place for work made dangerous alone by the carelessness and neglect of fellow servants, or for the negligent manner in which they use the tools or materials furnished to them for their work.

Indiana Car Co. v. Parker, 100 Ind. 181; New Pittsburgh Coal & Coke Co. v. Peterson, 136 Ind. 398, 43 Am. St. Rep. 327, 35 N. E. 7; Salem Stone & Lime Co. v. Chastain, 9 Ind. App. 453, 36 N. E. 910; Southern Indiana R. Co. v. Martin, 160 Ind. 280, 66 N. E. 886; Brazil & C. Coal Co. v. Cain, 98 Ind. 282; Crispin v. Babbitt, 81 N. Y. 516, 37 Am. Rep. 521.

The test to determine whether an employee is a vice principal or a fellow servant is not his title or rank, or power to employ or discharge, but the nature of the service that is being performed at the time of the accident.

Peirce v. Oliver, 18 Ind. App. 87, 47 N. E. 485; Robertson v. Chicago & E. R. Co. 146 Ind. 486, 45 N. E. 655; Justice v. Pennsylvania Co. 130 Ind. 321, 30 N. E. 303; Ross v. Union Cement & Lime Co. 25 Ind. App. 463, 58 N. E. 500; Perigo v. Indianapolis Brewing Co. 21 Ind. App. 338, 52 N.

E. 462.

If there was any negligence on the part of Haines in failing to warn the appellant, it was the negligence of a fellow servant.

New Pittsburgh Coal & Coke Co. v. Peter-workmen, for whose negligence in the per

formance of such details of the work the master is not liable to other servants.

son, 14 Ind. App. 634, 43 N. E. 270; Cole Bros. v. Wood, 11 Ind. App. 37, 36 N. E. 1074; Kerner v. Baltimore & O. S. W. R. Co. 149 Ind. 21, 48 N. E. 364; Klochinski v. Shores Lumber Co. 93 Wis. 417, 67 N. W. 934.

Kerner v. Baltimore & O. S. W. R. Co. 149 Ind. 21, 48 N. E. 364; Southern Indiana R. Co. v. Martin, 160 Ind. 280, 66 N. E. 886; Hussey v. Coger, 112 N. Y. 614, 3 L. R. A. 559, 8 Am. St. Rep. 787, 20 N. E. 556; O'Brien v. American Dredging Co. 53 N. J. L. 291, 21 Atl. 324: Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905: Central R. Co. v. Keeyan, 160 U. S. 259, 40 L. ed. 418, 16 Sup. Ct. Rep. 269; Potter v. New York C. & H. R. R. Co. 136 N. Y. 77, 32 N. E. 603. Where one servant is injured by the neg ligence of his fellow servant, the duties of both being such as to bring them into habitual association, as in this case, so that they may exercise a mutual influence upon each other, promotive of proper caution, and the master is not guilty of any negligence in employing the servant causing the injury, the master is not liable.

When the master has furnished appliances reasonably safe and fitted for the purposes intended, and exercised reasonable care to so keep them, he is not liable to a servant injured by reason of the negligent, unskilful, or improper use thereof by other servants, even if the latter be superior in rank to the injured servant. The proper use of such implements is a duty owing to the

master from all his servants.

Hussey v. Coger, 112 N. Y. 614, 3 L. R. A. 559, 8 Am. St. Rep. 787, 20 N. E. 556; 12 Am. & Eng. Enc. Law, 2d ed. pp. 953, 954: Kerner v. Baltimore & O. 8. W. R. Co. 149 Ind. 21, 48 N. E. 364; Robertson v. Chicago & E. R. Co. 146 Ind. 486, 45 N. E. 655: Meehan v. Speirs Mfg. Co. 172 Mass. 375, 52 N. E. 518; Hermann v. Port Blakely Mill Co. 71 Fed. 853.

A master is not required to be present at all times superintending the work, but the details of the work and the manner of its execution must usually be intrusted to

12 Am. & Eng. Enc. Law, 2d ed. pp. 953, 954; Kerner v. Baltimore & O. S. W. R. Co. 149 Ind. 21, 48 N. E. 364; Hoosier Stone Co. v. McCain, 133 Ind. 231, 31 N. E. 956; Drinkout v. Eagle Mach. Works. 90 Ind. 423; McKinnon v. Norcross, 148 Mass. 533, 3 L. R. A. 320, 20 N. E. 183; McDermolt v. Boston, 133 Mass. 349; O'Brien v. American Dredging Co. 53 N. J. L. 291, 21

Bier v. Jeffersonville, M. & I. R. Co. 132 Ind. 78, 31 N. E. 471: Chicago & E. I. R. Co. v. Kncirim, 152 Ill. 458, 43 Am. St.

Rep. 259, 39 N. E. 324; Chicago & N. W. R. Co. v. Moranda, 93 Ill. 302, 34 Am. Rep. 168; Chicago & A. R. Co. v. O'Bryan, 15 Ill. App. 134; Indiana Car Co. v. Parker, 100 Ind. 181.

An employee assumes, not only the ordinary dangers of his employment which are known to him, but also such as, by the exercise of ordinary diligence, could have been known to him.

Bailey, Master's Liability for Injuries to Servant, pp. 162 et seq.; Pennsylvania Co. v. Ebaugh, 152 Ind. 531, 53 N. E. 763; Chicago & E. R. Co. v. Wagner, 17 Ind. App. 22, 45 N. E. 76, 1121; Russell v. Tillotson, 140 Mass. 201, 4 N. E. 231; Corning Steel Co. v. Pohlplatz, 29 Ind. App. 250, 64 N. E. 476; Romona Oolitic Stone Co. v. Tate, 12 Ind. App. 57, 37 N. E. 1065, 39 N. E. 529; Diamond Plate Glass Co. v. De Hority, 143 Ind. 381, 40 N. E. 681; Chicago, I. & L. R. Co. v. Glover, 154 Ind. 584, 57 N. E. 244; Kentucky & I. Bridge Co. v. Eastman, 7 Ind. App. 514, 34 N. E. 835; Linton Coal & Min. Co. v. Persons, 15 Ind. App. 69, 43 N. E. 651; Day v. Cleveland, C. C. & St. L. R. Co. 137 Ind. 206, 36 N. E. 854; Stuart v. New Albany Mfg. Co. 15 Ind. App. 184, 43 N. E. 961.

If a servant with knowledge of existing conditions, or the means of obtaining such knowledge, without objection adopts the more dangerous method of doing the work, because it is convenient, the risk is his own. Wabash Paper Co. v. Webb, 146 Ind. 303, 45 N. E. 474; St. Louis Bolt & Iron Co. v. Brennan, 20 Ill. App. 555; St. Louis Bolt & Iron Co. v. Burke, 12 111. App. 369; Bailey, Personal Injuries Relating to Master & Servant, §§ 1121–1150; Beach, Contrib. Neg. 3d ed. § 299, note, p. 242; Elliott, Railroads, § 1313; Consolidated Stone Co. v. Redmon, 23 Ind. App. 319, 55 N. E. 454; Erskine v. Chino Valley Beet-Sugar Co. 71 Fed. 270.

When a servant knows facts from which he can, as well as the master, determine the probability of danger, he assumes the risk, even though he may not know of the actual danger.

Where an accident is unusual, and could not have been reasonably anticipated by a master in the light of long experience, there can be no culpable negligence upon his part, and a verdict for the plaintiff cannot stand.

McGahan v. Indianapolis Natural Gas Co. 140 Ind. 335, 29 L. R. A. 355, 49 Am. St. Rep. 199, 37 N. E. 601; Hines v. Willcox, 96 Tenn. 148, 34 L. R. A. 824, 54 Am. St. Rep. 823, 33 S. W. 914; Mitchell v. Stewart, 187 Pa. 217, 40 Atl. 799; Kibele v. Philadelphia, 105 Pa. 41.

The master is not bound to furnish implements of the best or most approved pattern, or of any particular design.

Jacobson v. Cornelius, 52 Hun, 377, 5 N. Y. Supp. 306; Harley v. Buffalo Car Mfg. Co. 142 N. Y. 31, 36 N. E. 813; Lake Shore & M. S. R. Co. v. McCormick, 74 Ind. 440.

Wabash, St. L. & P. R. Co. v. Locke, 112 Ind. 404, 2 Am. St. Rep. 193, 14 N. E. 391; Standard Oil Co. v. Helmick, 148 Ind. 457, 47 N. E. 14; Consolidated Stone Co. v. Redmon, 23 Ind. App. 319, 55 N. E. 454; Craven v. Mayers, 165 Mass. 271, 42 N. E. 1131; Kitteringham v. Sioux City & P. R. Co. 62 Iowa, 285, 17 N. W. 585; Evansville & T. H. R. Co. v. Krapf, 143 Ind. 647, 36 N. E. 901; Gassaway v. Georgia Southern R. Co. 69 Ga. 347; Sjogren v. Hall, 53 Mich. 274, 18 N. W. 812; Loftus v. Union Ferry Co. 84 N. Y. 455, 38 Am. Rep. 533; McGrell v. Buffalo Office Bldg. Co. 153 N. Y. 265, 47 N. E. 305; Del Sejnore v. Hallinan, 153 N. Y. 274, 47 N. E. 308; Ayers v. Rochester R. Co. 156 N. Y. 104, 50 N. E. 960; Baxter v. Chicago & N. W. R. Co. 104 Wis. 307, 80 N. W. 644; Deisenrieter v. Kraus-Merkel Malting Co. 97 Wis. 279, 72 N. W. 735; Wilber v. Follansbee, 97 Wis. 577, 72 N. W. 741, 73 N. W. 559.

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

Appellant instituted this action to recover for an injury to his person alleged to have been caused by the negligence of appellee. It is unnecessary to make any particular statement of the issues. Upon the close of the evidence introduced on behalf of the defense, the court instructed the jury to return a verdict in favor of appellee. The record presents the question as to the propriety of this action upon the part of the court.

There is a question in the case as to whether a certain appliance was defective, but, laying this matter aside for the present, it may be said that, after giving appellant the benefit of all disputed questions upon the evidence, the following facts are shown by the bill of exceptions: On July 4, 1900, appellee was, and for some time prior thereto had been, operating a flour mill, and an elevator in connection therewith, at Noblesville, Indiana. Appellee did not give the business his personal attention. One Anderson was the general manager thereof, and the evidence shows that he occasionally gave directions to the workmen. Under him was one Haines, who had charge of the loading, weighing, and handling of cars used by appeliee, as well as of the exchange business in connection with the mill. So far as shown, he had but three or four men under him. Appellant was employed by Anderson about the middle of May, 1900. He was told that he would be subject to the instructions

Assuming that Haines was guilty of neg

of Haines. Appellant worked under Haines | chock would be put under one of the wheels in loading cars, and in moving them on a when the car reached the proper position. siding used in connection with the plant; Haines said to the two men, as the car was but, when there was no work of that kind approaching: "When that loaded car comes to do he was given general, or, as he de- down and bumps that empty car, you keep scribes it, "roustabout," work upon the it going down the switch." Appellant testipremises. The mill was about 150 feet north fied that his understanding of the order was of the elevator. The siding was on the east that when the two cars got far enough apart side of the mill and of the elevator, and so that they could get in between them, and when cars were loaded at the mill they were before the empty car had lost its momenpulled down to or just beyond a track scale tum, they were to get in and push. The two which was in front of the latter building. men undertook to do so, and, as appellant From one to three cars were handled per was pushing, he slipped, and one of his feet day. The men would sometimes push an was caught by the flange of a wheel of the empty car between the two points, but the loaded car. Both appellant and his associate method of taking a loaded car from the mill cried out. Their cries were heard by a man to the elevator was by means of an appli- inside, but the car continued to move for a ance in the elevator known as a "car puller." minute or a minute and a half, during The power was transmitted from this ap- which time appellant's foot slipped along pliance to the car by means of a rope. The the rail for a little distance, but the outcar puller would draw the car at the rate come of it was that his foot was crushed. of 45 feet per minute. The rope passed out Appellant did not look back after stepping of the elevator through a window which was between the cars. He supposed that the so situated that, by attaching the rope to loaded car would be stopped. He had never the rear truck the car, it could be pulled been called on before to help push a car that until the rear end of it was just south of the had been started by a car behind it. scale. Anderson had explained to appellant at different times that it was neces-ligence in giving cne order, and in failing to sary for a man to stand in the window to signal to stop the car puller the moment signal the man in charge of the car puller that he was apprised that appellant's foot when to shut off the power. Haines ordina- was caught, it is to be determined whether rily did this, but he frequently designated Haines occupied sucn a relation to the work some one of the men to do it. On quite a that appellee should be held responsible for number of occasions appellant had done the consequences which ensued. If there is this. A short distance south of the scales any liability in this case, it must be placed two tracks came into the siding,-one from on a common-law ground, since appellee is the Lake Erie & Western Railroad, and the an individual. other from the Chicago & Southeastern Railroad. Appellant had helped to push cars between the mill and the elevator, and had assisted in pulling cars onto the intersecting tracks to the south. Haines ordinarily worked with his men. He possessed no power to hire or discharge them. Appellant was forty-two years old, and had had a reasonable amount of general experience about machinery. He admits that he was thoroughly familiar with the surroundings outside the mill and elevator. During the night of July 3, 1900, two cars were pushed into the siding by the Lake Erie & Western for appellee's use. The next morning the north car was loaded at the mill. The other car stood partially on the scale, but the greater part of it was to the south thereof. It was necessary to pull the loaded car down to the scale to weigh it, and then to get the empty car to the north. Haines, appellant, and another man started to do this work. The rope was fastened to the rear truck of the loaded car, and Haines stood at the window to stop the car when it stood upon the scale. It seems to have been appellant's expectation, since it was the practice, that a

The extreme doctrine concerning who are fellow servants, which was declared in Columbus & I. C. R. Co. v. Arnold, 31 Ind. 174, 99 Am. Dec. 615, is no longer the law of this state. There have been innovations upon the doctrine as declared in that case, in the direction of a more liberal rule in favor of injured employees, but not to the extent of permitting a recovery on the grounds suggested. Appellant's counsel cite upon this branch of the case the following authorities: Indiana Car Co. v. Parker, 100 Ind. 181; Taylor v. Evansville & T. H. R. Co. 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. Rep. 372, 22 N. E. 876; Nall v. Louisville, N. A. & C. R. Co. 129 Ind. 260, 28 N. E. 183, 611; Louisville, E. & St. L. Consol. R. Co. v. Hanning, 131 Ind. 528, 31 Am. St. Rep. 443, 31 N. E. 187; Hoosier Stone Co. v. McCain, 133 Ind. 231, 31 N. E. 956; Island Coal Co. v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, 65 N. E. 1026. Indiana Car Co. v. Parker, 100 Ind. 181, was a case where a duty of the master was neglected, in failing to furnish a safe place to work. It is therein very clearly pointed out that, as respects those duties which the master

owes to the servant, they cannot be delegat- | are limited to carrying on the work or died, and that therefore the omission of the recting it, whether actively assisting thereservant to whom their performance is in- in or not, and who is invested with no autrusted is necessarily the omission of the thority, or charged with no duty, in furmaster. The case, however, gives no recog-nishing places or appliances for the work, nition to the view that rank or superiority or in the employment or retention of emin service upon the part of a commanding ployees, is himself usually a mere coemservant is a controlling factor in the solu- ployee. His duties require him to use, or tion of the question as to liability. On the superintend and direct the using of, places contrary, it was said: "The rules which and appliances, and to control employees these decisions so firmly establish as the law furnished by the master. If, however, he is of this state may be thus stated: First. The given additional authority, and is charged master is not liable to a servant for in- with the duty of furnishing places to work, juries resulting from the negligence of a fel- and appliances for the work, and is authlow servant engaged in the same general orized to employ and discharge operatives, line of duty, where the negligent act is per- he is, as to such things, not a coemployee, formed in the capacity of a servant. Sec- but speaks and acts as the master. One who ond. Servants engaged in the same general is placed in unrestricted control of a given line of duty are fellow servants, although department by his master, and is clothed one may be a superior, and the others may with the power to command the services of be subordinate servants, under his immedi- the other employees not simply to see that ate direction and control." In Taylor v. they faithfully discharge the duties ordiEvansville & T. H. R. Co. 121 Ind. 124, 6 narily pertaining to their employment, and L. R. A. 584, 16 Am. St. Rep. 372, 22 N. E. in the usual places, with the usual appliances 876, it was held that the company was lia- provided therefor, but has authority to reble to a servant who was injured, while act- quire of them the performance of other ing under a special order of the master duties in other places and with other applimechanic, owing to a negligent act done by ances,-who has the authority to call the the latter. The case does not rest upon the sectionmen, the bridge builders, the freight theory that the master mechanic occupied a handlers, and the laborers from the gravel position analogous to that of a foreman, but pit and gravel train, and require of all that on the proposition that, in view of the full they unite in averting the threatened deauthority which he had over the men, ma- struction of a bridge,-is certainly in such chinery, and work, he stood for the master matters more than a mere fellow servant in the particular circumstances. The fol- with those thus subject to his control." In lowing extract from the opinion will suffi- Louisville, E. & St. L. Consol. R. Co. v. ciently show the effect of the decision: "We Hanning, 131 Ind. 528, 31 Am. St. Rep. do not affirm that an employee with author- 443, 31 N. E. 187, it was held that the raility to command may not be a fellow serv- road company was liable where a servant ant. On the contrary, we hold that one hav- was killed while engaged in the repair of ing authority to command may still be a a car on a track used for switching; it apfellow servant; but we hold also, that, pearing that the servant was called from his where the position is such as to invest the regular work, and had engaged in the repair employee with sole charge of a branch or de- of the car at the special command of the partment of the employer's business, the general foreman of the company's repair employee, as to that branch or department, shops, and that such foreman had neglected may be deemed a vice principal while en- to put out flags, as it was alleged that it gaged in giving orders or directing their was his duty to do, and as decedent supexecution." In Nall v. Louisville, N. A. & posed had been done. In Hoosier Stone Co. C. R. Co. 129 Ind. 260, 28 N. E. 183, 611, v. McCain, 133 Ind. 231, 31 N. E. 956, the a servant was called out, with a large force | facts were that, while two cars were being of men, to save a bridge which a freshet loaded with stone they started, and, running threatened with destruction. While labor- down a grade, caused the death of a servant ing in the waters, as he was directed to do who was unloading coal from a car which by an employee who had solely been intrust- was standing further down the track. The ed with the work of endeavoring to save the superintendent was present, and had dibridge, the servant was killed by reason of rected the loading of the cars above, and a negligent order given by the man in the jury found that there was nothing to charge of the work as to the movement of prevent him from seeing that the cars were a locomotive. It was held that the master not sufficiently stationed. In deciding the was liable. In the opinion of the petition case, this court said: "It sufficiently apfor a rehearing, it was said: "One who is pears, upon a fair and reasonable construcplaced in charge of a force of men engaged tion of the facts stated, that the superinin any of those occupations, whose duties tendent represented the corporation of

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