and which can be as distinctly foreseen and provided for in the rate of compensation as any other." It is true that, both upon the grounds of logic and fact, the reason, as here given, has been vigorously attacked; the attack varying in intensity and completeness in proportion to the feeling of antipathy which the writer bore corporations, because of their greediness or heartlessness. But whether logically sound, or true in fact, the reason of Chief Justice SHAW is still the basis upon which the rule is generally founded. The difficulty has not grown out of the unsoundness of the reason for the · rule, but out of the inability to apply the rule itself to the infinite variety of facts which are constantly presenting themselves. The question is, "Who, within the sense of the rule, or upon grounds of public policy, are to be deemed fellow servants in the same common adventure or undertaking?" Hough v. Railway Co., 100 U. S. 213. While many courts have essayed to give certain criteria by which to solve the question here presented, hardly any of acknowledged authority have endeavored to lay down a hard and fast formula by which all cases may be tested. The United States supreme court has refused to make any such attempt. See the cases above cited. That court has been exceedingly conservative in its enunciation of general rules. The same remarks apply to the majority of state courts. The result was inevitable, therefore, that the cases should be in irreconcilable conflict. It has been held that the following persons were fellow servants: Foreman of a bridge gang, and servants of operating train (Elliot v. Railroad Co., 5 Dak. 523, 41 N. W. Rep. 758); a section foreman and conductor (Fagundes v. Railroad Co., 79 Cal. 97, 21 Pac. Rep. 437); a laborer employed to remove snow from the track, and a conductor (Baughman v. Superior Court, 72 Cal. 573, 14 Pac. Rep. 207); a brakeman and conductor of different trains (Van Wickle v. Railroad Co.,

32 Fed. Rep. 278); a track repairer and an engineer (McMaster v. Railroad Co., 4 So. Rep. (Miss.) 59); a section man, and an engineer or brakeman (Howard v. Railway Co., 26 Fed. Rep. 837); a switchman of one train, and the engineer of another train (Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322). The number of cases might be greatly extended, but it is unnecessary. It will be noticed that the relation existing in each case is, in principle, the same as the relation existing in the case before us, between the plaintiff, Martin, and the engineer or conductor of the work train. In the Randall case, supra, the court says that for the purposes of that case it was not necessary "to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh the conflicting views which have prevailed in the courts of the several states; because persons standing in such relation to one another as did this plaintiff and engineman of the other train are fellow servants, according to the very great preponderance of judicial authority in this country, as well as the uniform course of decision in the house of lords and the English and Irish courts." And Judge GRAY, who delivered the opinion, cited a long line of authorities sustaining the view taken by the court. Continuing, he said, referring to the servants in the case before him: "They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. The separate services have an immediate common object, the moving of trains. Neither works under the orders or control of the other. Each, by entering into his character of services, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence against the corporation, their common master." It seems to

me clear that the principle of this case fairly and squarely covers the facts in the case before us, upon that branch of it relating to the negligence of the conductor or engineer upon the work train, and, that being the utterance of the supreme court of the United States, we are bound by it. Whatever may be the exact status of the Ross case, 112 U. S. 377, 5 Sup. Ct. Rep. 184, and its authority, which we will consider later, it has no reference to the state of facts that existed between the plaintiff and the conductor and engineer of the work train. They were fellow servants, and, being such, the common master is not responsible in damages to the plaintiff for the negligence of such fellow servants. That negligence was part of the risk he assumed.

It was argued strenuously by counsel for defendant in error that as the work train and section men were under one common direction or employment, in the repairing of the road, and the common superintendent sent them to the place of work, it was his duty to see that the work train did not run down and kill the section men upon the hand car, and failing in so doing, and being the representative of the company,-its vice-principal, the company is responsible for the negligence of the trainmen upon the work train. But in our judgment the record discloses no state of facts upon which such a contention can be predicated. The men upon the hand car were going to their work earlier than usual, and of their own volition. They were going, presumably, as they had been going for three months, over a line of railroad upon which were constantly passing trains. The work train was running in accordance with telegraphic orders, as to which orders there is no intimation of negligence, and the men upon the hand car knew that there was an order of the company providing: "Every man at work on the track must bear in mind that, in operating the road under telegraph orders, a train may pass at any moment." This abun

dantly shows that there was no negligence upon the part of the company by reason of any negligence of a superior servant controlling the operations of the men upon both the work train and the hand car. No superior servant invited the men upon the hand car to go upon the railroad with any promise that the road would remain clear of trains until they reached their destination, and then telegraphed a work train to the same place to run the men to their death. It may be urged that the testimony does not show that the plaintiff below knew of the rule above set out. But the foreman did, and, if he negligently forgot to inform the plaintiff, it is such negligence as may be considered upon the question as to the company's liability for his negligent acts, but not upon the point now being considered.

We now come to the consideration of the question, was the relation existing between the foreman of the section hands and the plaintiff below that of fellow servant? There are numerous cases in the books holding that though the foreman is a superior in some matters, as, for instance, in direction of general work, and even in power to hire the men who work with him, he is simply a fellow servant in a different grade, and that the difference in grade does not destroy the relation of fellow servant, so as to bind the common master for the negligence of the foreman. Ell v. Railway Co., 48 N. W. Rep. (N. D.) 222; Olson v. Railway Co., 38 Minn. 117, 35 N. W. Rep. 866; Lindvall v. Woods, 42 N. W. Rep. (Minn.) 1020. In the last cited case the court say: "In Brown v. Railway Co., 27 Minn. 162, 6 N. W. Rep. 484, it was held that the difference in grade of employment, or in authority with respect to each other, does not remove employees from the class of fellow servants, as regards the liability of the master for the injuries to one caused by the negligence of the other; and in speaking, in that case, of the basis upon which this rests, it is said: 'If the servant is supposed

to assume the risks which the master, with due care and diligence, can not prevent, then he assumes the risks from negligence of those servants who may be placed over him as superior servants or overseers, as well as those of equal grade with himself, for in respect to such overseers or superior servants the master, when he has used due care in selecting them, can not prevent their casual negligence, any more than he can prevent the casual negligence of those inferior in grade.'"' The case of Ell v. Railway Co., supra, was that of a servant suing the company for the negligence of the foreman of the gang doing the work where the injury occurred. That case is a well considered one, and presents the argument in favor of the contention of the company with much learning and logical power. The court says: "The foreman, Withnell, through whose negligence it is insisted that plaintiff was injured, had control of the gang employed on the work, and was vested with authority to employ and discharge the men, who were subject to his direction and supervision. Hence, it is urged that he was in his position, and therefore, in the prosecution of the work of unloading these piles, a vice-principal, and not a fellow servant." It is noticeable that this case is almost on all fours with the one before us, and the contention is the same in both cases. The court, continuing, lays down the two rules representing the two doctrines by which courts have endeavored to ascertain, from a given state of facts, if the servants were fellow servants, and says: "Here lies the difference between the two rules. The cases which preserve the fellow servant rule in its full integrity bring the facts of each case to the test, not of the rank of the negligent servant, but of the character of the negligence from which the damage results. Did the master owe to his servant a duty as master? Answer the inquiry in the affirmative, and he can not escape a careless discharge of that duty by shifting the