The question raised by this demurrer is, whether the deceased and the foreman of the slashing room were fellow servants, within the meaning of the rule which exempts the master from liability to his servant for an injury received through the negligence of a fellow servant in the course of their common service. The plaintiff contends that they were not, because they were not employed in the same department. The cases cited by the plaintiff, excepting those in Illinois, are plainly distinguishable from the case at bar. Thus, in Chicago Milwaukee Railroad v. Ross, 112 U.S. 377, it was held that an engineer was not a fellow servant with a conductor in charge, and to whom the company had given the right to command the movements of the train and to control the persons employed on it, upon the ground that the conductor should be treated, being so in fact, as the personal representative of the corporation, for whose negligence it was responsible to subordinate servants. In Moon'sAdm'r v. R. A.R.R. 78 Va. 745, the company was building a new road, and the construction, at the place of injury, was in charge of a section master, who was held not to be a fellow servant with a train hand, the company having delegated to an agent a duty incumbent upon it. It was also held that a conductor, having control and direction, was not a fellow servant with the train *Page 450 hand, but his superior. In Ford v. Fitchburg Railroad Co.110 Mass. 240, the company was held liable for not providing a proper engine, and in Davis v. Railroad Co. 55 Vt. 84, for a defective roadbed. These cases stand upon very different considerations from the one before us. The duty of the master to furnish suitable machinery and appliances, and to keep the same in repair, is unquestioned. It is also well settled that, when a master delegates to a servant duties which belong to himself, the servant will occupy the place of the master, not that of fellow servant with other employes, and the master will remain as responsible for the negligence of this servant as if he were personally guilty of it himself. Mulvey v. R.I. LocomotiveWorks, 14 R.I. 204. In the present case the deceased was not under the overseer of the slashing room, nor did the latter stand in the place of the principal with reference to the deceased. But the decisive question in this case is, whether the circumstances set forth amount to fellow service, as the term is used in law. The cases in Illinois are directly in favor of the plaintiff's contention. They proceed upon the distinct ground that, to constitute workmen under the same master fellow servants, they must directly cooperate with each other, or, by their usual duties, be brought into such habitual association as to have the power of influencing each other to the exercise of constant caution, by example, advice, encouragement, and by reporting delinquencies. In the case of Chicago N.W.R.R. v. Moranda,93 Ill. 302, the court reviews and affirms its position at length. It remarks, however: "Although the distinction taken by this court between these two classes of co-servants," i.e. those employed in the same department and those employed in separate and disconnected branches of the business, "has not the sanction of the courts of England, nor that of most of the courts of last resort in this country, we think, on principle, it is a distinction that ought to be taken."
But this distinction has not been overlooked in the adjudications upon this subject. In the early case of Farwell v. Boston Worcester R.R. Corp. 4 Metc. 49, the consideration of a distinction between those two classes of servants was pressed upon the court. Upon this point, Shaw, C.J., says, in the opinion of the court: "When the object to be accomplished is one and the same, when *Page 451 the employers are the same, and the several persons derive their authority and compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant they must be to be in the same or different departments. In a blacksmith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk, several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight and voice, and yet acting together. Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer, but because theimplied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied." The reasons here set forth are a strong answer to the position taken in the Illinois cases. They show an obvious impracticability in trying to gauge the liability of an employer, in a complex business, by the independence of its different branches, or by the intercommunication of those employed. Not only would it be almost impossible, in many cases, to separate the work into distinct departments and to discern their dividing lines, but incidental duties, changing the relations of workmen to each other, would vary also the master's liability. He would thus be liable for the negligence of a servant at one time or place and not at another. Without a personal supervision of all his help in all their work, he could not know when he was responsible and when he was not. Moreover, such a rule would govern the liability of a master when the groundwork upon which the rule is founded did not exist. For if *Page 452 the test of liability be that of the separate and independent duties of the servants, they may, nevertheless, be so near each other as to be able to exert a mutual influence to caution; or, if it be that of association, they may still be in the same department, but unable, from their duties or position, to exert such influence. But, aside from these considerations, we do not think the rule is correct in principle. The principle upon which the determination of Farwell v. Boston Worcester R.R. Corp. proceeded is the same that has been generally followed in England and in this country, namely, that the rights and liabilities of both master and servant are those which grow out of their contract relation. The master impliedly agrees to use due care for the safety of his servant, in providing suitable places and appliances for work; and, as is universally conceded, the servant agrees to assume the ordinary risks of his employment. The most common risks of service spring from the negligence of fellow servants. When one works with others, he knows that his safety depends on the exercise of care by those around him, as their safety depends also upon his own caution. No man can enter into an employment without a thought of this. Negligence, therefore, among workmen is a breach of the duty which each owes to the others, and not a breach of the master's duty, if he has exercised the care that is required of him. For his own negligence the master must answer, but for that of others, which is a risk incident to every employment, he has not agreed to be responsible, but on the contrary the servant has impliedly agreed to assume it upon himself. The contract relation, therefore, puts them outside of the rule which makes a master liable to a stranger for the negligence of his agent, for respondeatsuperior is based upon considerations of public policy which are not called for in the relation between master and servant. The cases cited by the defendant abundantly illustrate and support the generally recognized doctrine that servants under the same master, in a common service, are fellow servants, although they may be engaged in different departments of labor.
But the plaintiff further contends, even in this view of the case, it is only the ordinary risks, which can be reasonably foreseen and taken into account, that the servant assumes; and, consequently, since the deceased could not foresee such an act of carelessness as *Page 453 the throwing of the barrel, it is not within the risks assumed. We have already said that the ordinary risks include the carelessness of others. This rule is distinctly recognized inRailroad Company v. Fort, 17 Wall. 553, one of the cases cited by the plaintiff upon this point, The court say: "The employe, in entering the service of the principal, is presumed to take upon himself the risks incident to the undertaking, among which is to be counted the negligence of fellow servants." In that case a boy of tender years was sent by a superior, whose orders he was required to obey, to adjust a belt in a dangerous place, outside of his regular duties, in ignorance of the danger. There is a wide difference in the application of the rule in such a case and in the case at bar. The argument of the plaintiff here, if followed, would abrogate the rule; for the careless acts of another are just the ones that cannot be foreseen. If they could be, it would be because they were a part of the ordinary way of doing things, and, therefore, presumably not negligent. They are, nevertheless, a part of the ordinary risks. We think the plaintiff's claim that the deceased and the overseer of the slashing room are not to be regarded as fellow servants is untenable, and that the demurrer to the declaration must be sustained.
Demurrer sustained.