(concurring). My only excuse for adding anything to what has been so well said by the CHIEF JUSTICE is that if, as some suppose, this court has shifted ground, and departed from its former rulings, or if, as is suggested, there is any doubt as to the guiding principles adopted by the court, it is due to the profession that it be made as clear as possible what position the court occupies. It is needless to say that the doctrine of “fellow servant,” and particularly that phase of it presented by this case, to wit, when a superior employé bears to inferior employés under him the relation of vice principal and when that of fellow servant, is one of the most difficult questions in the law.
The principle which this court has always announced as the test is that it is not the mere rank or grade of the superior employé, but the nature of the duty or service which he was performing, *442which determines the question; that, whenever a master delegates to another the performance of a duty which he owes absolutely to Ms servants, or which would fall within the line of his duty as master if personally present, then, in the'performance of such acts, such other person would be, as to other servants, a vice principal, and not a fellow servant. Whether we have always correctly applied tMs test to the facts, is another question. For example, in hiring and discharging workmen the foreman in the present case would represent the master, and his negligence in the premises would be chargeable to the master. So also in the matter of selecting or inspecting implements and other instrumentalities for the performance of the work, assuming that this duty had been delegated to him. And where, as in this case, he had been given entire control of the work, and of all the workmen engaged in it, with absolute and supreme authority to give them orders how to do the work and where to work, I tMnlc that, on exactly the same principle, in giving these orders, which the workmen were bound to obey, he represented the master, and was performing a duty which would have devolved on the master if personally present. Shearman & R. Neg. (4th Ed.) § 233.
I am not able to concur in the views of Justice CANTY that the test is the parity or disparity of skill or knowledge between the superior and the inferior employés. Aside from its being a novelty in the law, wMch is always dangerous, I do not think it rests on any sound principle. The parity or disparity of skill or knowledge may be very material upon the questions of negligence and contributory negligence, and I can see how the degree of skill or knowledge required for the performance of a particular duty may, in. some cases, have an important bearing upon the question whether that duty was an absolute one of the master or the mere act of a fellow servant; but I fail to see how it is at all controlling as determinative of the question whether, in performing a given act, the superior employé did or did not represent the master. Eeduced to a concrete form, and applied to the facts of this case, the proposition seems to be about this: As the foreman knew that the curbing was unsafe, therefore in giving the order to plaintiff he was a vice principal, but if he had not* known that the curbing was unsafe, then the order would have been merely the act of a fellow servant.