On Petition for Rehearing.
Myers, J.1. The court should have referred in its original opinion to the case of Indianapolis St. R. Co. v. Kane (1907), 169 Ind. 25, as the case was familiar to the writer and to the court, but the question of non-liability under the employers’ liability act was not raised in that *418case, either upon the record or the briefs, and the majority of the court was of the opinion that, owing to that fact, it would be understood by the profession; but, upon further consideration, it was decided to withdraw the opinion and refer to that case, in order that the seeming conflict between that case and the case of Indianapolis Traction, etc., Co. v. Kinney (1909), 171 Ind. 612, and this case might be explained; for the case of Indianapolis St. R. Co. v. Kane, supra, is in seeming conflict with this case and the ease of Indianapolis Traction, etc., Co. v. Kinney, supra, and was so understood by the writer and the court at the time.
We have again examined the complaint upon the lines urged by appellee in its support, and especially the cases relied on: Taylor v. Evansville, etc., R. Co. (1889), 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. 372, Nall v. Louisville, etc., R. Co. (1891), 129 Ind. 260, and Knickerbocker Ice Co. v. Gray (1908), 171 Ind. 395.
We are clearly of the opinion that the theory of the complaint was of liability under the employers’ liability act, and that appellee’s original brief fairly so indicates, by citation of §8017 Burns 1908, Acts 1893 p. 294, §1, and cases under that act, under points and authorities as to the sufficiency of the complaint, though there is nowhere else in the record any express declaration of the theory of the complaint, and we might have been justified in reversing the judgment upon that ground. But, in view of the state of the decisions when the cause was tried, appellee ought not to be restricted as in case of a settled condition of the decisions, and for that reason we again review the complaint, upon appellee’s theory now urged, of stating a common-law liability.
It is due to appellee to say that the cases cited by his counsel upon this application have not been followed in their application to the doctrine of vice-principal, and have been distinguished in effect in a number of cases.
*4194. The ease of Taylor v. Evansville, etc., B. Co., supra, was undoubtedly correct in its holding that the master mechanic was in a general way a vice-principal, but as to the particular act which caused the injury to Taylor, he was a fellow servant. Taylor was injured by the negligent act of the master mechanic in assisting in the removal of the equalizer, and was clearly a eoemploye within the rule cited by the learned justice who wrote that opinion. He says: “If Torrence [the master mechanic] was acting in the capacity of a coemploye at the time his negligence caused the appellant’s injury, the action can not be maintained, although he was the appellant’s superior, and had the right to retain or discharge him. An agent of high rank may be, at the time the act is done, a fellow servant of an employe occupying a subordinate position. Hussey v. Coger [1889], 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. 787. If, for instance, the general superintendent should take hold of one end of an iron rail to assist an employe of the company in loading it on a car he would be, as to that single act, a fellow employe, although as to other acts he might be the representative of the master. ’ ’ The error in the application of the rule is plain, for it is stated that “while the appellant was engaged in the work of removing the key of the equalizer, under the master mechanic’s direction, the equalizer was negligently pulled out of its place by the master mechanic [our italics] and it fell upon the appellant and very severely injured him.” The work they were doing was disconnecting an equalizer and removing it from its place, in order to enable the master mechanic to examine it, for the purpose of ascertaining whether the key could be changed. That the application of the rule was inadvertently made in that ease fully appears from the statement of the rule and the facts.
In 3 Elliott, Railroads (2d ed.) §1323, it is said: “This rule does not rest upon the doctrine of subordination, but upon the *420principle that it is the master’s duty to provide safe machinery and appliances, and in performing that duty the master mechanic occupies the master’s place.” This rule is well established. But when the master mechanic has discharged the ditty of the master, of ordinary care in furnishing a safe place or safe appliances, and descends from that obligation and duty to assist in the. manual act, he is a fellow servant. The. rule is well stated in another case written by Judge Elliott (Krueger v. Louisville, etc., R. Co. [1887], 111 Ind. 51), where ho says, quoting from the case of Indiana Car Co. v. Parker (1885), 100 Ind. 181, also written by him: “The negligence of a fellow servant, or co-employe, acting as such, will not authorize a recovery in any ease, although the fellow servant or coemploye may be a superior officer, an agent or a foreman; but, if the superior agent is charged with the performance of the master’s duty, then, in so far as that duty is concerned, his acts and his negligence are the acts and the negligence of the master, and not simply those of a coemploye or fellow servant.” (Our italics.)
The distinction is well stated in the case of Ford v. Fitchburg R. Co. (1872), 110 Mass. 240, 14 Am. Rep. 598, where it is said: “The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow servants of those who are engaged in operating it. They are charged with the master’s duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require.” (Our italics.) And this is true in jurisdictions where superior agents, such as section foremen, are recognized as vice-principals, a rule which has never obtained in this State. Gann v. Nashville, etc., R. Co. (1898), 101 Tenn. 380, 47 S. W. 493, 70 Am. St. 687.
*4213. *420The case of Nall v. Louisville, etc., R. Co., supra, is more *421nearly in point as respects the allegations of the complaint before us, than any other case cited or that we have been able to find. There is, however, one marked divergence between these two eases. In that case, the decedent was a track, or section hand, taken out of his usual employment to do an extraordinary and hazardous work. Helms, in charge of the work, is designated in the complaint as “agent and chief foreman of the defendant,” “defendant’s agent in chief,” “he alone directing and commanding how such work should he done, and who should do it.” It was there said that “styling him in the complaint as ‘agent,’ or ‘chief,’ or ‘representative of defendant,’ casts no light upon the matter. The law imposes certain duties. * * # The agent to whom he entrusts such duty, regardless of his rank, acts as the master, and in his place.” The case is grounded upon the case of Taylor v. Evansville, etc., R. Co., supra, without noting the distinction and inadvertence of the application of the rule as we understand it in that ease. The case of Nall v. Louisville, etc., R. Co., supra, was correctly decided upon other grounds, which are stated on petition for rehearing, because it shows an unusual condition with which the railway company was suddenly confronted, requiring immediate action, and requiring not only the furnishing of safe appliances, but an intelligent directing authority, in order to accomplish a specific thing not contemplated by the employment of the servant; and also because the servant was put in a place in itself dangerous, and of continuing danger, and it was properly held that this directing head was necessarily the master.
*4222. *421The case at bar is essentially different in several particulars. Appellee was engaged in the usual line of an employment in which he was experienced. The place where he was directed to work is not alleged to have been dangerous or hazardous, it only became so by the manner in which the common employment was carried on. It is not alleged that *422there was any defect in the appliances or machinery, or any danger in the place where the work was carried on. When the master has used ordinary care in selecting the appliances, and continues this duty, and the work is not in a dangerous place, or is not rendered dangerous hy some reason other than the negligent manner in which it is carried on, the master’s duty is discharged. If this were not true, the master would become an insurer of safety. Characterizing the superior as “superintendent, foreman and boss,” adds nothing to his relation; the allegations simply show him to he a superior in a common employment. It is alleged that defendant delegated to the “superintendent, foreman and boss” “power and authority to provide ways, works, tools, machinery and appliances with which to do and perform the work.” It is not alleged that there was any neglect in providing them. It is alleged that defendant gave and delegated to him “power and authority” to direct the manner of doing the work and what each employe should do, and said employes were bound to conform to his orders. That is no more than the power which every superior servant has. It is not alleged that the place where he was directed to work was dangerous, so there is no duty shown to have been neglected in that respect, unless it can be said that the place must he kept safe under all conditions, and the negligence charged is not in rendering the place unsafe, hy reason of anything in or about the place, but by reason of a condition arising and created, outside of the place, in the progress of the work, by the order to remove braces, causing a piling to fall, which coaid, or was as likely to fall in any other direction as in the direction of appellee. In other words, if appellee had been in some other place where he had a right to he, and had been injured by the falling piece, he would, upon the theory of this complaint, so far as a common-law action is concerned, have had as good a right of action as he here claims. We only call attention to this fact to show that it is not because he was in *423a particular place, but because of the alleged negligence in removing the stay — that is, the manner in which, under a common law employment, a constantly changing general work was carried on — that he was injured.
In the case of Knickerbocker Ice Co. v. Gray, supra, the complaint charged both defective machinery and an unsafe place, with direction from one, who was charged with the duty of the master to furnish safe machinery and a safe place to work, for Gray to leave his usual place of employment and go into the unsafe place, where he was injured from the unsafe condition there existing. The question of the authority of the engineer to direct Gray, arose upon the evidence, and it ivas shown that the engineer was charged with the duty of hiring and discharging men, and to look after the engines, machinery and engine-rooms, which necessarily implied the duty of keeping them safe — a master’s duty.
In the case of Ohio, etc., R. Co. v. Stein (1894), 140 Ind. 61, it was held that the duty of a foreman of machine shops to see that the appliances sent out were ordinarily safe was the master’s duty, and in the case of Indiana, etc., R. Co. v. Snyder (1895), 140 Ind. 647, it was held that a carpenter charged with the duty of making and placing hand-car handles is a vice-principal as to that service, because that is a master’s duty, and it is manifest that that line of cases does not control the question here. Here we have negligence charged, not in the machinery or appliances, but in giving an order by one in general charge of the work, and the question turns upon the relation of the master to the foreman, and his relation to appellee. Suppose the foreman had pried off the brace? Could it then be insisted that he was not a fellow servant in doing the general work? Can it be any more the ease when he directs another to do it? In other words, does the fact of the giving of the order raise him to a higher relation than doing it manually? It was said in the case of Thacker v. Chicago, etc., R. Co. (1902), 159 Ind. 82, *42485, 59 L. R. A. 792: “In this State there is a clear distinction between a superior servant and a vice-principal. A superior servant is generally one who has authority to direct and control other servants, and may or may not be charged with any of the duties which the master owes his servants.”
In the case of Dill v. Marmon (1905), 164 Ind. 507, 515, 69 L. R. A. 163, it was said: “Notwithstanding the view which this court has sanctioned as to the liability of the master to a servant for the negligence of an employe who is over the whole service, or over a large department of it, yet it has never given any recognition to what is termed the ‘superior servant doctrine.’ On the contrary, it has always maintained that the master was not liable for the act of a mere foreman in giving directions concerning the work to a servant working under him, where the place and appliances furnished by the master were proper. * * * In the case last cited [Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460,] it was pointed out that the master’s duty relative to furnishing a safe place to work does not require, in undertakings which may properly be entrusted to a foreman and the men under him, that the master shall guard the men against those transient dangers which from time to time occur in the progress of the work. In Southern Ind. R. Co. v. Martin (1903), 160 Ind. 280, it was said: * * * ‘The whole matter was one of detail that the foreman and the men might properly be permitted to attend to in their own way.’ ”
4. The employer however is not liable to his employe for the negligence of his coservants in respect to the details of the work, nor is he bound to protect his employe against the mere transitory perils that the execution of the work occasions. “The word ‘place’ in negligence eases usually means the premises where the work is to be done, and does not comprehend the negligent acts of fellow servants by reason of which the place is rendered unsafe or dangerous. # * # The absolute obligation resting upon *425a master to use due care to provide and maintain a safe place for his workmen does not extend to all the passing risks that may arise from short-lived causes.” Haskell & Barker Car Co. v. Przezdziankowski (1908), 170 Ind. 1, 14 L. R. A. (N. S.) 972, 127 Am. St. 352.
5. 2. It must be manifest that in order that there should be a liability under the complaint in this case, it must appear that the foreman was acting in place of the master, discharging a master’s duty, with respect to the alleged negligent order, and it is likewise manifest that the foreman was not discharging any duty owing by the master. It is not shown what, if any, authority the foreman had, except that of controlling and directing the manner of doing the work, and to hold that the complaint states a cause of action would be to hold that every superior servant in directing the manner of doing a specific work, in the line of a general employment, is a vice-principal, and creates a liability merely from his power of control and direction of the work, and his negligence in doing so, and the very object and purpose of the employers’ liability act, owing to the hazards of train operation, was to create that relationship under specified conditions, by way of enlargement of the common law liabilities. A superior servant cannot be said to be a vice-principal in giving a negligent order in the progress of a changing work any more than it can be said that a master is liable where a qualified servant chooses a negligent manner of doing a specific work assigned to him. Either case would make the master an insurer. Broad allegations of power and authority to direct the work and control the men cannot control the specific allegations showing that the injury was occasioned by a negligent direction, under the changing conditions under which the work was carried on, by one who was not discharging the duties of the master, but those of a superior servant, in giving the direction.
Two cases in which the proposition is tersely stated are *426found in Flynn v. City of Salem (1883), 134 Mass. 351, and Floyd v. Sugden (1883), 134 Mass. 563. See, also, O’Neil v. Great Northern R. Co. (1900), 80 Minn. 27, 82 N. W. 1086, 51 L. R. A. 532; Tedford v. Los Angeles Electric Co. (1901), 134 Cal. 76, 66 Pac. 76, 54 L. R. A. 85, and Illinois Cent. R. Co. v. Josey’s Admx. (1901), 110 Ky. 342, 61 S. W. 703, 96 Am. St. 455, 54 L. R. A. 78 and the valuable and extensive notes.
The petition for rehearing is overruled.