"A servant who is injured by the negligence of a fellow-servant in the course of their common employment, without any fault on the part of the master, can maintain no action against the master for such injury." Fifield v. Railroad, 42 N.H. 225, 236; Hanley v. Railway, 62 N.H. 274; Griffin v. Company, 67 N.H. 287; Lebarge v. Berlin Mills, 68 N.H. 373; Fournier v. Company, 70 N.H. 629. The test whether the individual employees concerned were fellow-servants is not found in the fact that they were engaged in a common employment under the same general control and paid by the same principal, but is whether the negligent servant, in the act or omission complained of, represented the master in the performance of any duty owed by the master to the servant injured. The responsibility of the master is determined by the nature of the act in question, and not by a difference in rank or grade of service between particular servants. Jaques v. Company,66 N.H. 482; Small v. Company, 94 Me. 551; Bail. Mast. Ser. 284, 286.
The plaintiff, the foreman, and the teamsters were engaged in a common employment filling the trench. The plaintiff in the bottom of the ditch was injured by the negligent dumping of earth and stones upon him. If he had been warned, he could have protected himself and escaped injury. The liability of the defendants for the failure of the foreman to give the warning, assuming that such failure was due to negligence, is determined by the answer to the question whether the duty of giving the omitted warning was a duty personal to the master. The rank or grade of the employee to whom this duty was in this case entrusted is immaterial, because the foundation of the claim is the non-performance of an alleged non-delegable duty. The only breach of the master's duty suggested is the failure to provide the plaintiff with a safe place in which to work and to keep it safe. It is urged that, as the plaintiff could not safely work in the bottom of the ditch without warning, the master's duty as to the place was not performed unless the warning were given. It is not suggested that the place itself in which the plaintiff was at work was unsafe. There was no secret danger unknown to the plaintiff; at least, the injury is not attributed to such a cause. The plaintiff's injury was due to a danger arising in the progress of the work. So long as in the work of filling the trench no earth was thrown into it in the plaintiff's vicinity, the place where he was at work was safe. His injury resulted from the prosecution of the common work by the defendants' other employees. The place and the danger varied as the work progressed. The place was not a permanent location prepared by the master for the work, but was made and changed by the work the servants were doing. Where the *Page 296 supplying of a work-place is part of, or necessarily results from, the work being done, and is to be done by the servants themselves, the master is not liable for a co-servant's negligence in the progress of the work, rendering the place unsafe. Armour v. Hahn, 111 U.S. 313, 318; Zeigler v. Day,123 Mass. 152, 154. An illustration is to be found in the cases where a part of the work of the servants is to build scaffoldings or stagings upon which to work. In such cases it is no part of the personal duty of the master to see to it that such places are safe. His duty ends with the supply of suitable materials. Manning v. Manchester Mills, 70 N.H. 582. Having provided a safe place, the master is not liable upon the ground of that obligation if the place is made unsafe by the negligence of servants employed, not to provide the place, but to do the work in the place. Nash v. Company, 62 N.H. 406; Bodwell v. Company, 70 N.H. 390; Hussey v. Coger, 112 N.Y. 614, 618; Cullen v. Norton, 126 N.Y. 1; Daves v. Company, 98 Cal. 19, — 35 Am. St. Rep. 133; Hermann v. Company, 71 Fed. Rep. 853.
The obligations of the master as to machinery and appliances and in respect to the place are the same in substance, and may both, as well as his duty in the employment of servants, be comprehended by the use of the term "instrumentalities." The master's duty is to exercise care to provide reasonably safe and sufficient instrumentalities for the work. The execution of the work is the duty of the servant. "The master has not contracted or undertaken to execute in person the work connected with his business." Wilson v. Merry, L. R. 1 H. L. Sc. 326, 332. When the repair of the machinery or appliances furnished by the master requires skill and practical knowledge, the obligation is that of the master; but when the inspection and repair is incidental to the use of the appliance, i.e., is a part of the work of its use, such inspection and repair is the duty of the servant. Jaques v. Company, 66 N.H. 482, 484; Bjbjian v. Company,164 Mass. 214, 219; Cregan v. Marston, 126 N.Y. 568. Upon the same principle, when the danger arises not from the place itself, but from the use of it for the work, and no special skill or experience beyond that involved in doing the work is required to maintain the safety of the place, the maintenance of such safety is the duty of the servant because it is a part of the work. The plaintiff cannot recover on the ground of the breach of the master's obligation as to the place, because there is no evidence of negligence of the master in that respect.
The contention that the master's duty as to the place is in question here, involves a confusion of ideas. It is not the duty as to the place itself that is in question, but the question is as to the extent of the duty of the master to guard the servant from dangers *Page 297 arising in the course of the work from the work itself. The master is bound to take reasonable precautions to insure the servant's safety (Foss v. Baker, 62 N.H. 247, 251); or as the rule is usually expressed, to provide such reasonable rules and regulations as will enable the servants to do the work in safety. Northern etc. R. R. v. Peterson, 162 U.S. 346, 353. The measure of the master's duty in this regard is ordinary care. The law is not varied by the nature or the extent of the enterprise. "The responsibilities of the defendants in this case, and of the individual who hires two laborers in harvest, or two carpenters to erect a staging and shingle his house, are to be determined by the same legal tests." Fifield v. Railroad, 42 N.H. 225, 238. The individual who employs two laborers to dig a ditch is not required to stand over them to give warning, or to prevent one from throwing earth upon another. Neither is he required to employ a watchman to give warning to the one when the other is about to throw a shovelful of earth into or out of the trench. There is no occasion for such a precaution, not because the rule of law is different, but because ordinary care does not demand it in such case. As the number of servants is enlarged and the work extended, the probability of injury of one by the other is increased. When the nature of the work reasonably demands rules or precautions, the master's duty arises. The master's duty is performed by the adoption of a reasonably suitable method. If ordinary care requires that a warning of dangers arising from the work should from time to time be given to his servants as the work progresses, it is the master's duty to provide for such a warning. Having made provision for the warning by entrusting the duty to a competent person, he is not liable for the negligence of the person entrusted with the duty. Hussey v. Coger,112 N. Y. 614; Ocean Steamship Co. v. Cheeney, 86 Ga. 278; Cheeney v. Steamship Co., 92 Ga. 726, — 44 Am. St. Rep. 113; Luebke v. Railway, 59 Wis. 127, — 48 Am. Rep. 483; S.C., 63 Wis. 91, — 53 Am. Rep. 266; Portance v. Company,101 Wis. 574, 579, — 70 Am. St. Rep. 932; Donovan v. Ferris, 128 Cal. 48, — 79 Am. St. Rep. 25; Hartvig v. Company, 19 Or. 522; The Harold, 21 Fed. Rep. 428; Hermann v. Company, 71 Fed. Rep. 853; The Pioneer, 78 Fed. Rep. 600; Martin v. Railroad, 166 U.S. 399, 403. For other cases to the same effect see 54 L.R.A. 120, note (f), where it is said that "all the authorities with the exception of the single New Jersey case (Belleville Stone Co. v. Mooney, 61 N. J. Law 253) seem to be agreed that a master is not liable for the negligence of a servant in failing to notify a co-employee of the approach of a transitory peril which, as the work progresses, will render the environment unsafe for a brief period, but which may easily be avoided if *Page 298 due warning is given." The New Jersey case cited seems not only contrary to all the authorities as to the particular duty of warning, but also in violation of the general rule, that a master is not responsible for the lack of safety in the place occasioned by the negligence of another employee doing the work in the place, which is recognized as sound in New Jersey as well as elsewhere. Curley v. Hoff, 62 N. J. Law 758; Stewart v. Paper Co., 96 Me. 30. No sufficient reason is suggested for following the apparently anomalous doctrine of this case.
The logical soundness of the general rule appears from its application to the facts in this case. The plaintiff was injured because the foreman negligently directed or permitted the earth to be thrown upon him. If the duty of warning is personal to the master, the duty to take care that the earth should not be thrown upon the servant is equally so. The difference is merely one of statement. If the master is liable here for the negligence of the foreman in omitting the warning, he would be liable for the negligence of the teamster who dumped his load without warning if the duty rested upon him to give warning, or for the negligence of the single shoveler who in like manner emptied his shovel upon his companion. In the latter case, it would be entirely immaterial whether the one in the ditch or the one upon the ground above was foreman. The cause of the injury is the negligent throwing of the earth by the one upon the other. The absence of a warning by which the injury would have been escaped is merely evidence of negligence in the person performing the act. As the act is that of a servant, the negligence is also. It is immaterial whether the act and the omission are chargeable to the same person. The division of duty necessary in large enterprises does not make that the act of the master which in smaller concerns is the negligence of the servant. The fact that the foreman had control over the plaintiff and directed him where to work does not, under Jaques v. Company, make the master liable for the negligence in the work of a fellow-servant. Keenan v. Railroad, 145 N.Y. 190, 196. Assuming that the power of direction involved the exercise of the master's duty (which is not generally true), the plaintiff's injury did not arise from any negligence in the performance of such duty.
The parties agree in an amendment to the case, that the only questions raised or transferred are (1) the liability of the defendants for the failure of the boss, who was present performing the duty of giving warnings, to warn the plaintiff at the time of the accident; and (2) the effect of the assurance of protection by the foreman to the plaintiff as an inducement to him to enter upon and continue at the work assigned him. Therefore, whether the *Page 299 personal duty of the employers required them in this case to make rules for the conduct of the business or provision for a warning, and whether such duty was discharged by the assumption by the foreman of the task of giving warning, are questions not raised or presented for consideration.
While there is no implied contract for the breach of which the defendants are liable, they might be personally liable upon an express contract if one were made. There is evidence of an express undertaking by the foreman that he would "take care of" the plaintiff. Construed in the light of the practice shown by the evidence, this might be found to constitute an agreement to give warning, or a warranty that one should be given. Accompanied by evidence of authority from the defendants, such contract and its breach would establish the plaintiff's case. The only evidence is that the foreman was in charge of the whole gang, both teamsters and shovelers, and had been all summer. It is to be inferred, therefore, that the foreman had authority to direct the men where to work. If it were necessary to place a man to give warning, he had that authority. If the assurance had been that some one — the foreman, or some one else — would be charged with the duty of warning, and no person had been directed to perform that duty, the failure might be held a breach of the master's duty entrusted to him. But there is no evidence that the foreman was authorized to do more in the name of the defendants than perform so much of the defendants' legal duty as was entrusted to him. The duty to select some one to give the warning having been performed by the assumption of that duty by himself, of whose competency no question is made, his authority so far as shown by the evidence was exhausted. In his capacity of watchman, he had no more authority to pledge the defendants as insurers of the plaintiff's safety than any man whom he might have directed to perform that duty. His authority to act for the defendants being only that implied by law, he had not authority to act for them outside the duty which the law imposed upon them. If the law imposed upon them the duty of warning, the express agreement is immaterial except upon the question of the plaintiff's care, because the defendants would be equally liable without as with the agreement; while if they are not liable, there is nothing in the case empowering the foreman to agree they should be. What the foreman said was the mere promise or guaranty of a fellow-servant. It does not purport to be anything more. The promise of a servant that he will exercise care in the work entrusted to him to avoid injury to a fellow-servant is not the promise of the master. Martin v. Railroad, 166 U.S. 399, 403; Schott v. Bank, 63 N. Y. Supp. 631; 54 L.R.A. 116, note (2). *Page 300
It does not appear that the foreman hired or discharged the other employees. Entrusted with the authority to make the contract of hiring, reasonable and necessary stipulations introduced by him into the contract would be binding upon the defendants. As part of such a contract, a reasonable and necessary special guaranty of notice might bind the defendants. Bradley v. Railroad, 62 N.Y. 99. The case discloses nothing of the sort. The plaintiff has placed his claim solely upon the failure to give warning. The lack of warning, unexplained, may be evidence of negligence in the person whose duty it was to give it; but to charge the defendants as employers, the plaintiff must go farther and show that the failure is chargeable to negligence, either in employing incompetent servants or an insufficient number, or in placing the duty of warning upon one so occupied with other duties as to be incompetent to perform this, or to a failure to make proper rules and regulations for the conduct of the work. In the absence of any evidence upon either point suggested, the nonsuit was properly ordered.
Exception overruled.
BLODGETT, C. J., and CHASE and WALKER, JJ., concurred.