delivered the opinion of the Court.
These contentions require the determination of two questions: 1. Were Wheatley and Calaway fellow servants. 2. Was there any negligence proved other than that of Calaway which may be imputed to the company.
1. Ho doctrine has given rise to so much confusion in judicial reports as the question as to what constitutes the relation of fellow servants, and there is no branch of the law so fraught with perplexity. Judge Bailey in his recent admirable work on “ Masters’ Liability for Injuries to Servants,” page 229, says: “ The authorities are so confused in determining who are fellow servants and upon what principle they should be determined that it requires a thorough acquaintance with the doctrine as recognized and declared by the courts of each State to properly apply the decisions of its courts to a given case.”
In this State we are controlled by no adjudicated cases, and are therefore free to seek and find, if we may, the safe rule and reasonable solvent of these perplexities.
“ It is a universal rule at common law that master or employer is not responsible to those engaged in his employment for injuries suffered by them as the result of the negligence of other servants in his employ and engaged in the same general service or employment;” Bailey 229.
*312“ The general rule is that he who engages in the employment pf another for the performance of specific duties for compensation takes upon himself the natural and ordinary risks and perils incident to the performance of such service, which include the carelessness and negligence of those who are in the same employment;” McKinney, Fellow Servants 18.
“ The true test whether an employee occupies the position of a fellow servant to another employee or is the representative of the master is to be found not from the grade or rank of the offending or injured servant, but is to be determined by the character of the act being performed by the offending servant which caused the injury.”
Let us ascertain the duty of the master as such. There are certain positive duties which the master must perform, “ and the person who discharges any of these duties, no matter what his rank or grade, no matter by what name he may be designated, cannot be a fellow servant; he is an agent, and the rule applicable to principal and agent must apply; id. § 23.
Whenever the servant is doing work which attaches to and should be preformed by the master as such, he represents the master, and does not hold the relation of fellow servant to the other employe who may be injured by his negligence.
Therefore “ where a master uses due diligence in the selection of capable and trustworthy servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable to one of them for an injury received by him in consequence of the carelessness of another while both were engaged in the same service.” id. § 9.
The duties of the master may be summed up as follows: He must furnish for his employes a reasonably safe place in which to work; reasonably safe machinery and appliances with which to work ; he must exercise due care and caution in selecting competent and trustworthy co-workers; and it may be he should make and promulgate rules for the government of his establishment whenever it is so large or complicated, as to make his personal supervision *313impracticable. These are the master’s positive duties, negligence in meeting any of which makes the master liable. We think this is probably the extent of his liability. When the servant is performing any of these duties, he is the agent and representative of the master, and the master is liable to an injured employe for the negligence of the offending servant therein. When this rule does not apply, the co-employes are fellow servants and the master is not liable.
This is the doctrine as it now has become crystallized in the reports of the Supreme Court of the United States; beginning with the case of Randall vs. B. & .O. R. R. Co., 100 U. S. 482, and running through the cases of the B. & O. R. R. Co. vs. Baugh, 149 U. S. 369, Northern Pac. E. R. Co. vs. Hambly, 154 U. S. 349, and the latter cases in the United States Courts of Appeal. It is also the doctrine of the courts in the States of Pennsylvania, New York, Massachusetts, Maryland and a majority of the other States of the Union. Indeed we may say, of the overwhelming majority of all the well. considered and well reasoned cases on this subject. It was uniformly the English doctrine prior to the statutes on this subject.
It is the one reasonable and philosophic rule that lifts us out of the uncertainty and confusion that has clouded this branch of the law, and furnishes us a uniform and clear test.
Apply this test to the case at Bar and see how easily the problem of the relation of Calaway and Wheatley to each other is solved. There is no proof that the place where Wheatley worked, that is, the road bed, track, etc., were not reasonably safe; there is no proof that the machinery and appliances with which he worked, that is, the engines, switches, etc., were not reasonably safe; there is no proof that reasonable care was not taken in selecting capable and skillful co-workers ; indeed it is proved that Calaway had had seven years’ experience; there is no proof that effective rules were not promulgated for the government of the employes; indeed it is in evidence that there were such rules, and that their observance on that very night and at Porter’s Station had worked the safety of *314both life and property with respect to this very train No. 17 and another train ahead of it.
Therefore from the evidence none, of these duties of the master appear to have been omitted. It is apparent, therefore, that the duty of Calaway in signaling the train in no way related to any of these positive duties of the company, but was a duty ministerial in its character, and of executive detail in the operation on the road, which must of necessity be vested in the faithfulness of the employee. This therefore fixes his position relative to Wheatley as that of fellow servant and not as the representative or agent of the master, and if his negligence alone caused the accident which resulted in the death of Wheatley the company cannot be held liable.
2. But it has been urged with great force and earnestness by the plaintiff’s counsel, that even if Calaway was a fellow servant, and the accident was caused by reason of his negligence, that there was other negligence on the part of the defendant that combined with the negligence of Calaway in causing the injury, and therefore the defendant should be held. This proposition is true if the evidence sustains it.
But is there any such proof in this case ? We must be governed, not by conjecture, but by the proof. The counsel has suggested that at the time of the accident the “ Y ” and the main track were to some extent obstructed and congested by reason of an accident at St. Anne’s the day before, which had delayed peach and passenger trains and thus interferred with the safe operation of the road; that the danger target signal at the station was not used; that the central agent at Clayton had not stopped No. 97 by orders, and other suggestions in. this line. After careful examination of the plaintiff’s proof we are unable to find any evidence, which shows that these matters so suggested were in any wise the result of negligence on the part of the defendant, or that they in any respect were the proximate cause of the accident which resulted in Wheatley’s death.
From the evidence of the plaintiff, it appears that the accident *315resulted alone from the negligence of George W. Cala way while he was in the performance of duties, heretofore described, which were of executive detail in the operation of the road, and that in the performance of such duties we conclude that he was a fellow servant of Wheatley, and that the defendant is not liable for- such negligence. It was Calaway’s negligence, for which he is liable, but is not the negligence of the Company, and may not be imputed to it.
It is with great reluctance that courts take cases away from the jury, but where the evidence on the part of the plaintiff is such, that if a verdict is found for the plaintiff, the Court would be constrained to set it a side, it is not only • reasonable but it is the duty of the Court to .stop the case at that point. Such in our judgment is the case at bar.
We therefore order that non suit be entered.
The Court then directed the jury .to bring in a verdict for the defendant, so that the opinion of the Court could be treated as if a charge to the jury, and subject to exception if desired.
Verdict for the defendant.