— This action is for personal injury received by plaintiff. He recovered below and defendant appealed. The evidence tended to show, and, since the verdict it may be said to have shown, that plaintiff was a section man on defendant’s road, and that he received his injury at the hands of the section foreman. Three or four men including plaintiff and the foreman were endeavoring to pull a switch tie out from under the rails. All four had their picks stuck in *303Hie tie, and were in a' stooping position pulling at the tie when the foreman’s pick slipped and he fell hack against an embankment. He immediately recovered himself-and made a quick “ overhanded ” stroke at the tie. His pick struck plaintiff on the head, causing the injury of which complaint is made. The plaintiff was working under the foreman’s directions and orders, and when hurt was working as directed by the foreman.
It is established law of this state, now well understood since Judge Heney’s opinions in the cases of Moore v. Railroad, 85 Mo. 588, and McDermott v. Railroad, 87 Mo. 285, that a section foreman, or boss, is not the fellow-servant of the men under his charge, control and direction. That he is, notwithstanding his inferior standing in the official scale of the corporation, a vice-principal is clearly demonstrated in the Moore and McDermott cases. But in this case we have the unusual fact that the injury was directly inflicted by the foreman himself while engaged in the work as a co-laborer with plaintiff. Does this fact alter the relation of the parties, or interfere with the master’s liability? Our opinion is that it does not. If in the case at bar the section foreman had ordered one of his hands to strike his pick down between the heads of the two others, it would not be contended that defendant was not liable for the injury resulting from such imprudent order. There is no just or logical distinction between the act of the vice-principal in negligently ordering a servant to do an imprudent thing, and in doing the thing himself. In each case it is the act of the vice-principal; in one, he wills the servant shall do the act, in the other, he wills that he, himself, shall do it. This position is sustained by authority. Gormley v. Iron Works, 61 Mo. 492; Dayharsh v. Railroad, 103 Mo. 570; Berea Stone Co. v. Kraft, 31 Ohio St. 287; *304Ashworth v. Stanwia, 3 El. & El. 701; Ormand v. Holland, 96 Eng. Com. Law, 102; Wharton on Negligence, secs. 205, 235; Shearman & Redfield on Negligence, sec. 89.
The servant assumes the risk of the negligence of" his fellow-servant, but does not assume the risk of the-negligence of the master himself, or, what is the same thing, of a servant placed over and in control of him by the master or his superior, and under whose orders and directions he must act. The foregoing disposes of defendant’s objection to plaintiff’s instructions on the' question of fellow-servant.
We think there was sufficient evidence of the foreman’s negligence to submit to the jury. The stroke with the pick, between the heads of plaintiff and his comrade, under the circumstances and in the position of the parties, may well be considered negligence.
It is insisted that the judgment should be reversed, on account of the court permitting one of the plaintiff’s-witnesses to state how the defendant’s hospital is supported. The witness said that “ there is twenty-five-cents taken off every man’s check that is paid to the-hands, and this goes to the hospital to pay for taking care of the men that get injured. It is taken from the-section men and from all the employes of the railroad.” This testimony was preceded by the cross-examination of the plaintiff in which defendant had him state that-he was sent to defendant’s hospital, and that defendant charged him no board and no fee for the physician at the hospital. If it was proper for the defendant to-show this to the jury, it was no more than fair that the testimony complained of should also be heard. Plaintiff had not attempted to show as items of his damage the payment of board or a physician.
The judgment is affirmed.
All concur.