The wharf, being considerably higher than the portholes, afforded an efficient and easy method of loading. On the wharf there was another set of men, under the charge of a foreman, who were engaged in sending the lumber into the hold and between decks by means of the chutes. These men would place a piece of lumber on one of the chutes, and slide it down into the vessel, where it was received by the mate and his men, and piled up with the other lumber. It appears that some of the lumber, depending on the size and weight of the piece, would come down with considerable force and momentum, which made it necessary for those in the between decks to get out of the way. To avoid any disaster from this danger, it was the custom and the duty of some person on the wharf to give a signal or warning cry to those in the vessel when a piece of lumber was started down one of the chutes, or just after it had been started. This warning was given, not merely as a matter of convenience, but as a danger signal, to apprise those in the vessel, so that they might be on the lookout for the lumber, and get out of its way as it came rushing down. It was therefore a signal which was necessary to the safety of those in the vessel, and was relied upon by them to avoid any risk of injury. At the time the accident occurred through which libelant was injured, he was engaged, with the other men, in the act of lifting a piece of lumber, described by the witnesses as 40 feet long, and 10 by 10 in breadth and thickWhile doing this, to remove it on a roller from the end of the chute, another piece of larger dimensions, 60 feet long, and 12 by 12, unexpectedly, and without the usual signal having been given, or any warning to apprise those in the between decks of its having been started on the chute, came down, and, before libelant could get out of the way, struck him on his right leg, severely injuring that limb. Another man, who was close by at the time, also had a very narrow escape from being struck by this piece of lumber. The testimony is uncontradicted that the signal was not given on this particular occasion. It appears that a like omission had occurred a couple of days previously, and that the mate had called the attention of the foreman in charge of the men on the wharf to this delinquency, and requested him to caution his men to be more careful. It also appears that there was no particular danger connected with the loading provided the warning signal was given in ample time to permit the men in the hold to watch for the approaching lumber, and get out of its way as it came down.

ness.

From this recital of facts, it may be taken as established that on this particular occasion, when libelant was injured, no warning signal was given by the person on the wharf whose duty it was to give such signal, and that this was such negligence as contributed proximately to the accident and injury sustained by libelant. The question then occurs, is the employer, the Port Blakely Mill Company, liable to the libelant for this negligence of his coemployé? It is contended by counsel for defendant that the company cannot be beld responsible, because libelant was a fellow servant with the employé whose duty it was to give the warning signal, and that

he was not injured through any fault or omission of duty which the company, as employer, owed to its employés. The libelant's counsel argues that this contention is not sound, for the reason that, among the positive duties and obligations which the employer owes to his employés, is that of providing a safe place for the employés in which to work; that, applying this rule to the case at bar, it was necessary for the maintenance of that safety to give warning as each piece of lumber was sent down into the hold of the vessel; and that the giving of this warning was one of the duties which the law imposes upon the master personally, for failure to perform which, whether it be his personal negligence or of his servant, acting in his stead, damages may be awarded.

It is undoubtedly true that the master assumes the duty towards his servant of providing him with a reasonably safe place in which to work; that this duty is a positive and personal one; and that, if delegated to a subordinate, it remains, nevertheless, in law, the act of the master. McKinney, Fel. Serv. p. 73, § 28; Wood, Mast. & S. p. 695, § 334; Shear. & R. Neg. (3d Ed.) p. 119, § 92; 7 Am. & Eng. Enc. Law, p. 830, and cases there cited; Anderson v. Bennett (Or.) 19 Pac. 765. The rule is ably and clearly stated by Mr. Justice Brewer in Railroad Co. v. Baugh, 149 U. S. 368, 386, 13 Sup. Ct. 914, as follows:

"A master employing a servant impliedly engaged with him that the place in which he is to work, and the tools or machinery with which he is to work or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and the machinery, and, when he employs one to enter into his service, he impliedly says to him that there is no other danger in the place, the tools, and the machinery than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits the master who provides the place, the tools, and the machinery owes a positive duty to his employé in respect thereto. That positive duty does not go to the extent of a guaranty of safety, but it does require that reasonable precautions be taken to secure safety, and it matters not to the employé by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employé, or the latter's right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore, it will be seen that the question turns rather on the character of the act than on the relations of the employés to each other."

See, also, Hough v. Railway Co., 100 U. S. 213; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, and cases there cited.

The rule itself is well settled. The question here is whether the negligence of the person on the wharf whose duty it was to give the warning signal, and who failed to do so, was a breach of the master's duty to furnish libelant a reasonably safe place to work in, or whether it was the negligence of a fellow servant, not engaged in the performance of a positive duty required of the master. It is important to observe in this connection that libelant was not injured by reason of any defect or inherent danger in the premises or place where he was

engaged in working, which the master knew or should have known, and which libelant did not know; but he was injured solely by reason of the fact that the person whose duty it was to give the warning signal omitted to do so. No question was raised at the hearing as to the safety of the hold and between decks, so far as the place itself was concerned, nor as to the sufficiency and fitness of the implements and instrumentalities used in loading, nor as to the competency of the person whose duty it was to give the signal to discharge that service. No negligence on the part of the company in employing and selecting the particular individual to give the warning was shown, and, so far as that feature of the case is concerned, it may be taken as conceded that he was competent. The legal presumption is that he was competent, and that the master discharged his duty to the libelant in that respect, no proof to the contrary having been submitted. Beasley v. Fruit-Packing Co., 92 Cal. 388, 28 Pac. 485; Drake v. Railroad Co. (Sup.) 30 N. Y. Supp. 671; Potter v. Railroad Co. (N. Y. App.) 32 N. E. 603.

Having selected a competent person, the master has done all that the law requires of him, and any negligence of such coemployé is the act of a fellow servant, for which the master is, by the general law, exempt from liability. This view of the case is confirmed by inquiring into the danger which existed and its cause. The only fact that rendered the place unsafe was the failure to give the signal. But for that omission, it would have been, on the particular occasion when libelant was hurt, free from danger. The method of loading lumber pursued in this case, and the practice of giving signals of warning, so that those in the vessel could get out of the way as the piece of timber comes down the chute, is, as was testified, the usual and customary way of loading vessels with lumber on this coast. The libelant himself testified that, "if they give warning for every piece, no accident will happen. We have plenty of time to get away." It is difficult, therefore, under this state of facts, to see how the negligence of the coemployé can be imputed to the employer, without contravening the general and well-settled rule exempting the employer for the negligence of a fellow servant. The mere negli gence of the servant does not prove negligence of the employer. Cooper v. Railroad Co., 23 Wis. 669. Had it been shown that the signal man was addicted to intemperance, or by reason of some physical defect or careless habits, which the employer knew or should have known, was unfit and incompetent to discharge his duties in a reasonably careful and proper manner, such a state of facts would tend to bring the case within the well-recognized exceptions to the general rule. But no such showing was made. The contention of counsel for libelant is that the place where libelant was working was rendered unsafe by reason of the fact that the person on the wharf whose duty it was to give the warning failed to do so, and that this negligence constituted a breach of duty on the part of the master to furnish a safe place for libelant to work in. The word "place," in my judgment, means the premises where the work is being done, and does not comprehend the negligent acts of fellow

servants, by reason of which the place is rendered unsafe or danger. ous. The fact that the negligent act of a fellow servant renders a place of work unsafe is no sure and safe test of the master's duty and liability in this respect, for it may well be said that any negligence which results in damage to some one makes a particular spot or place dangerous or unsafe. To so hold would virtually be making the master responsible for any negligence of a fellow servant which renders a place of work unsafe or dangerous. It would be doing the very thing which it is the policy and object of the general rule not to do. It would create a liability which the master could not avoid by the exercise of any degree of foresight or care. In this case the person who was detailed to give the warning signal, and omitted to' do so, was, undoubtedly, both in reason and upon authority, a fellow servant of libelant. They were both engaged in a common employment, viz. that of loading lumber; both were employed and paid by the same common master, the Port Blakely Mill Company.

Judge Thompson, in his work on Negligence (volume 2, p. 1026, § 31), gives the following general rule:

"That all who serve the same master, work under the same control, derive authority and compensation from the same common source, are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants, who take the risk of each other's negligence."

Cooley, Torts, p. 541, note 1; Wood, Ry. Law, § 338; Beach, Contrib. Neg. p. 338, § 115.

The case most directly in point, both as to facts and the law enunciated, is Steamship Co. v. Cheney (Ga.) 12 S. E. 351. It ap peared there that the plaintiff, as in this case, was working in the hold of a vessel. He was engaged in receiving and stowing bales. The bales were thrown down through the hatch, and the company had placed a man at the hatchway to give warning to those in the hold whenever bales were thrown down. It appeared that upon one occasion no warning was given, and the complainant was injured by a bale which was thrown down. The hatch tender was usually the engine driver, or one of the hands employed to assist in loading the vessel. The court held that such person, whoever he might be, was a fellow servant with the complainant. Simmons, J., used the following language:

"He [the hatch tender] was engaged by the company in the same business that all the other hands of the gang were engaged in, to wit, the loading of the vessel with freight. He was therefore a coemployé with the other persons engaged in this business; and if, when stationed at the hatchway for the purpose of giving notice to the hands below, he failed to give that notice, or if he absented himself from the hatchway, and while absent some other person engaged in the business threw the bales down into the hold, without notice to those below, and the plaintiff was thereby injured, it was in consequence of the negligence of a coemployé, and, under the law, he cannot recover for such negligence."

And the verdict in favor of plaintiff was reversed, and a new trial granted.

The same case came up again before the court, on a second appeal, and the opinion of the court is reported in 19 S. E. 33. Upon the sec

ond trial, the lower court granted the defendant a nonsuit. But a materially different state of facts was developed on the second trial. It appeared that, before the plaintiff went into the hold, the foreman in charge of the work had promised him that a man would be sta tioned at the hatchway to give warning as the bales were about to be thrown down. It thus appears that there was an express promise that some one should be stationed at the hatchway to give warning. The appellate court found, from the facts, that this promise had not been fulfilled, and that no one had been detailed to give warning, as plaintiff had requested. It therefore reversed the judgment of nonsuit. The court say:

"The evidence in this case tends to show that it was essential to the safety to those employed in the hold of the vessel, at the time in question, that a 'hatch tender' should be so stationed at the hatchway to warn them when bales were about to be thrown into the hold; and, if this was so, it was the duty of the company to supply a person to be stationed at the hatchway for that purpose. If all the men employed in loading of the ship were engaged in other parts of the work, from which none of them could be spared to give warning at the hatch, the number of employés ought to have been increased, and one of them directed to perform this particular service. So long as no employé was charged with the duty of giving warning at the hatch, there was a failure on the part of the defendant to carry out its implied contract with those employés for whose safety such warning was necessary."

But in the case at bar there was no such failure to carry out the employer's duty. He did furnish a person to give the warning signal. This person was, so far as the evidence shows, competent to discharge that duty. The employer, therefore, did all that was required of him by law. For any negligence of such person so employed, resulting in damage to a coemployé, he is not liable.

One

of the ordinary risks which employés assume is the negligence of fellow servants.

With respect to this question, the same judge, in the above case, on the second appeal, said:

"If the foreman complied with his promise, and stationed a man at the hatch, and the person so stationed negligently absented himself, without the knowledge of the foreman, his absence would be the negligence of a fellow servant, and not of the company."

In neither of these decisions does the court advert to the doctrine, contended for by counsel for libelant, that the duty to give warning is one personal to the employer, and that, if a subordinate be delegated to perform it, he is a vice principal to that extent, and not a fellow servant. If such a doctrine be sound, it was certainly applicable to the facts of that case as they appeared upon the first appeal. There, as here, a failure to give the customary warning signal rendered the work unsafe and dangerous, and it was by reason of the failure to give such warning that the plaintiffs in both cases were injured. It is significant, therefore, that no such doctrine as is here contended for was even alluded to by the court.

In the case of The Harold, 21 Fed. 428, the libelant was one of several men procured by a stevedore to shift coal in a vessel, all of whom were paid for by the ship, by the day; and he was injured,