The record-union., 1891-03-31


distinction growing out of different
grades of employment. There has also
been recognized in few instances what
may be called the doctrine of ''vice
principalship;'' that is, where one gen
eral employe is held to have been given
the entire and unlimited control and
management of the whole business of the
| principal, so that he stands in all respects
IN his principals place. and all his negli-
gent acts are deemed to be the direct acts
of the principal. And upon these as
serted principles we understand appel
liant to mainly rest this case. 1t is con-
tended that as the conductor was superior
in grade to the deceased brakeman, and
adcertain authority over him, and rs
| the conductor, with respect to the rum
ming OF the train, was the vice principal,
! therefore the general rule applicable to
fellow servants does not apply. In sup
| port OF this position the case of Chicago
and M. z. r. Co. VS.. Ross 112 U. S. Rep.
! 30 is cited.
The facts of the last-named case are not
| exactly like those in the case at bar. 1t
may be assumed, however, that the
opinion of the majority of the court in
that case is favorable to the appellants
contention. That seems to be the view
taken by the four dissenting Justices
| Bradley, Matthews, Gray, and Blatch-
! ford for, in expressing their dissent,
they say: "We think that the conductor
of the railroad train in this case was fel
| low servant of the railroad company with
the other employees on the train. We
think that TO hold otherwise would be to
break down the long established rule
| with regard to the exemption from re-
SponSibility of employers for injuries to
| their servants by the negligence Of heir
| fellow servants But it is 10 lie observed
that the majority of the court were not
| governed or restrained by any statutory
| provision. They were at entire liberty TO
| consider the philosophy Of the subject,
Land to follow the direction Of their own
! Judgments as TO what should lie the rule.
/ The decision was not given i'll view Of the
! statutory law of California upon the
|. point, or of any similar law of any other
! State.
The Civil Code of California went into
effect January l, 1915, and under The head
OF obligations OF the Employer" ii pro-
! videS as follows: "Section 1870. An en-
! ployGr is not bound to indemnify his
I eInploye for losses suffered by the latter
! business in which he is employed, nor III
consequence of the negligence of
another person employed by the
same employer in the sane gcneraI
business, unless he has neglected to use
| ordinary care III the selection of the
cnlpable employee" This section Of the
code not only re-states the rule first es-
tablished by judicial decision, as to in
| jury received through the negligence Of Il
! fellow-ssryant, but it clears away to
great extent the difficulties which may
have existed as to the meaning of ''fel-
| low-servants." 1t declares them to be
those employed Sin the same general
business'' And if the employees on
train OF cars. including the engineer, the
conductor, the fireman, and the brake
/ man. are not persons employed in the
same business, it would be difficult to
| imagine set of men who could be con-
sidered as SO employed. They are on
the same train; their duties all appartain
to the running Of that train; each has his
own work to do, and the joint work of all
| is necessary to the business; they are al
most constantly in close relations and
personal contact with each other; they
have the fullest opportunities for know
ing each others qualifications as to care
! tulneSs and skill, and detecting any fail
ure of duty; and to them applies peculiar
| ly the reasoning upon which the general
rule was originally founded.
This clause of the Code has received
judicial construction. In Mclean VS..
Blue Point Gravel M. Co. (5l Cal. 255),
plaintiff was employed to work in
hydraulic mine. One Kegan was fore
man OF all work." with authority to
employ and discharge hands, Through
the negligence of Kegan plaintiff was in
jured by blast. Judgment in the trial
court went for defendant, and on appeal
plaintiffs counsel contended, as an ex-
ception to the general rule, that the en-
ployer is liable for Injury to a subordi-
nate servant by the negligence of Il su
| perior." The court affirmed the iudg-
ment and in its opinion, after quoting
section 1870, said: THE injury to the
plaintiff was caused blythe negligence of
Kegan, the foreman of defendant, who
was fellow servant with the plaintiff
another person employed by the same
employer in the same general business
that is the business of working the mine
of defendant-Kegan being in the blast
ing, and plaintiff in the hydraulic de-
partment of the general business
I The law OF this State respecting this SUBJ
ject, as set forth in the Code referred to,
recognizes no distinction growing out of
! grades of employment of the respective
employees; nor does il give any effect
to the circumstance that the fell
low servant through whose negligence
the injury came was the SUPERIOR
of the plaintiff in the general service
i'll which they were in common engaged
and the alleged distinction in this respect
insisted upon by the defendants counsel,
! founded, as he claims, on the general
principles of law, and the adjudged cases
require no examination at our hands.
! Collier VS.. Steinhart, ante, p. 116.)" 1t is
clear that in deciding this case the court
determined that the code swept away the
distinctions which appear in some of the
''adiudged cases. on the subject of fell
low servants. Collier VS.. Steinhart, re-
ferred to in the opinion t51 CAL lIG),
is still stronger to thepoint decided. Both
| of these cases We're approved in McDon-
aid VS.. HaZeltine (5S Cal. 35), which was
also case where an employe was in
jured through the carelessness of a fore
man. These cases were again followed
and approved in Stevens VS.. Doe (73 Cal.
! 26), where it was held that ''the foreman
ola mine and miner employed to work
under his directions are fellow servants;
and the owner of the mine is not liable
for injuries caused to the latter through
| the negligence of the foreman, unless he
failed to use ordinary care in the selection
of the foreman" The same doctrine was
announced in Brown VS.. c. p. r. r. Co.
| az Cal. 523), and Fagundes vs. C. p. r. r.
Co. 20 Cal. 81.
| 1t is contended, however, that the
principal may give an employe such au-
thority as will constitute him syice
principals" that in that instance such en-
ploye stands in the shoes of the principal.
and the latter is liable for the employees
negligence by which another employe is
injured; and that in the case at bar the
conductor was such vice principal. The
authorities mainly relied on for this con-
tention are Beeson VS.. Green Mountain
(57 Cal. 20}; Brown VS.. Sennett (6S Cal
225); Sanborn VS.. MADEIRA Flume Com
pany 90 Cal. 261), and McCune VS.. South
ern Pacific Railroad Company (66 Cal.
302).
In the Beeson case the death of the de-
ceased was caused by defective pipe in
a mine; and the only point decided was
that principal is liable for injury to an