without his own fault, by a board which fell through the hatch in consequence of the winch man's starting up the steam winch without notice to his fellow workman, whose business it was to tend the ropes at the platform. The winch man was furnished by the ship, and not by the stevedore, and was a competent person. It was held by Brown, J., that all were in the common service of the ship, and were colaborers in the same undertaking, and that the ship, therefore, was not liable for the injury, no breach of any duty owed by the ship or her officers being shown. In Cooper v. Railroad Co., 23 Wis. 668, a flagman, whose duty it was to place a flag as a signal of danger at a place where some rails had been taken up, negligently put it in such a place that it could not be seen in time to avert a train running into a gap in the road, resulting in the death of the plaintiff, who was a brakeman on the train. It was held that the two were fellow servants. In The Islands, 28 Fed. 478, the libelant, a longshoreman, was employed in the hold of the vessel, shoveling coal. A gangway man was stationed at the hatch, to keep the tubs of coal clear of the sides of the hatch, as they were raised or lowered; in other words, to maintain the safety of the place below, where claimant was working. Through his negligence libelant was injured. It was held that there could be no recovery, be cause of the fact that the libelant and the gangway man were fellow servants. In The Furnessia, 30 Fed. 878, it was held that the boatswain of a ship loading lumber, handling the steam winch by which the lumber was lowered into the hold, and the libelant, a stevedore engaged in the loading, were fellow servants. In The Servia, 44 Fed. 943, the libelant, who was engaged in loading iron in the hold of a steamship, was injured through the negligence of the guy tender or of the engineer, in allowing the skid, in ascending to the deck, to catch. and in not stopping the engine. It was held that they were fellow servants with libelant, and that the only obligation of the ship was to see that the instruments used were reasonably sound and fit for the service. In The Walla-Walla, 46 Fed. 198, a longshoreman, assisting in loading a vessel, and the second mate, were held to be fellow servants. In Steamship Co. v. Merchant, 133 U. S. 375, 10 Sup. Ct. .397, the stewardess and the carpenter and the porter were held to be fellow servants. It appeared that the carpenter belonged to the deck department, and the stewardess and the porter to the steward's department, but this was held to make no difference in their relation to each other of fellow servants.

The latest declaration of the doctrine of fellow servants by the supreme court is in the case of Railroad Co. v. Keegan, 16 Sup. Ct. 269, delivered December 23, 1895. It appeared from the facts of that case that the plaintiff was one of a crew of five men, comprising what was called the "night float drill crew"; that the duty of such crew was to take cars from the tracks on which they had been left by incoming trains, and place them on floats, by which they were transported across the North river to the city of New York. The drill crews, like others employed in the same yard, received their general instructions from the yard master, who had the power to

hire and discharge the men composing such crews, and had general charge of the yard and yard men, and assigned them to their duties. The crew of which plaintiff was a member were, however, under the immediate control and general management of one of their number, named O'Brien. He was sometimes called "foreman driller," sometimes "conductor of the drill crew." He was the one to direct what cars should be taken on by the engine, and when and where they should be moved to, when the movement should start, and where it should stop; and it was in obedience to his orders that one or other of the men employed in his crew went to one place or another, and coupled or uncoupled particular cars. The plaintiff, Keegan, attended to the coupling. He was instructed by O'Brien to couple a train onto certain cars beyond. While engaged in discharging that duty, he was injured through the negligence, it was claimed, of O'Brien. The negligence complained of was his ordering plaintiff to couple cars which he had just ordered to be uncoupled from a backwardly moving train to stationary cars beyond them, without himself being on the moving cars, so as to apply the brakes to check their motion in case such action became necessary. or seeing that some one was there to exercise control over their movement. Under this state of facts, two questions were certified up from the circuit court of appeals of the United States for the Second circuit. They were (1) whether the defendant in error and O'Brien were or were not fellow servants, and (2) whether, from negligence of O'Brien in failing to place himself or some one else at the brake of the backwardly moving cars, the plaintiff in error was responsible. The supreme court, in answering the first question. held that Keegan, the defendant in error, was a fellow servant with O'Brien. As to the second question, it was held that the plaintiff in error was not responsible for the negligence of O'Brien, as he was not discharging a positive duty of the master. In this connection, Mr. Justice White, delivering the opinion of the court, says:

"A personal, positive duty would clearly not have been imposed upon a natural person, owner of a railroad, to supervise and control the details of the operation of switching cars in a railroad yard; neither is such duty imposed as a positive duty upon a corporation; and, if O'Brien was negligent. in failing to place himself or some one else at the brake of the backwardly moving cars, such omission not being the performance of a positive duty owing by the master, the plaintiff in error is not responsible therefor."

If the negligence of the coemployé in that case was not the breach of a positive duty, owing by the master to the servant, to provide a reasonably safe place for him to work in, it is difficult to see how that doctrine can be applied to the facts in the case at bar to the extent of making the defendant responsible..

In none of the cases cited by counsel for libelant do I find the proposition he contends for sustained; at least, not so as to be deemed applicable to the facts of the case at bar. Those cases to which he refers, and in which the facts would seem to justify the application of such a doctrine, assuming it to be a sound one, went off on other grounds. While they involve the law of master and servant, in none of them is it laid down as a settled rule, under a

state of facts similar to those in the case at bar, that where a place in which an employé is directed to work is reasonably safe and free from danger, it is rendered unsafe because of the negligence of a fellow servant, through which negligence injury results to another employé. In this connection, let us briefly examine a few of the leading cases cited by him, and which he claims establish the correctness of his position.

In Mining Co. v. Whelan, 12 C. C. A. 225, 64 Fed. 462, a decision of the circuit court of appeals for this circuit (Ninth), it appeared that the plaintiff was injured through the negligence of a coemployé, known as his "boss." The duties of plaintiff were to break up rock in the ore pit, from which the broken rock was drawn, from time to time, through chutes, to a lower level, at which the chutes were closed by gates. The duties of the boss under whom he worked were to see that the men did their work, to direct them where to work, to notify them when rock was to be drawn through the chutes, and to direct when rock should be drawn through any particular chute. There was a conflict of evidence as to whether the boss was authorized to employ and discharge men at work under him. Plaintiff, who was at work on the top of a pile of rock, covering the head of a chute, was injured by being drawn through the chute with the rock. There was a conflict as to whether, on the occasion in question, the boss notified plaintiff that the chute was to be drawn. The trial court left the question as to whether or not the boss was a fellow servant with plaintiff to the jury. It was held by the appellate court that this course was a proper one, and, as the jury found for the plaintiff, that they must, necessarily, have determined that the boss and plaintiff were not fellow servants. Some parts of the opinion seem to sustain counsel's contention, but,. taken as a whole, and considering the differences between the duties imposed on the boss in that case, who, to all intents and purposes, was a vice principal, and the duties imposed on the person whose business it was to give the warning signal in this case, I do not think that it is authority for his proposition. The court refers to the character of the "boss" and his relation to the plaintiff as follows: "Did the court err in refusing to instruct the jury to find a verdict for defendant? The first and most important question is whether Finley, the night boss of the shift of workmen employed at the mine, was a fellow servant of the plaintiff. Finley's duties were to see that the men did their work, to direct them where to work, and to notify them when rock was to be drawn from the chutes. It was the duty of plaintiff to obey Finley's orders. Finley was his boss. Those questions are undisputed."

It was held that the court below did not err.

In the case at bar, libelant was injured through the negligence of a person who was in so sense a "boss" or vice principal. He was a coemployé, the danger from whose negligence was as obvious and as great as from that of those who were working with the plaintiff in the hold of the vessel. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914.

The case of Railroad Co. v. Charless, 7 U. S. App. 359, 2 C. C. A. 380, and 51 Fed. 562, is also referred to as authority for libelant's

contention. But in that case the plaintiff was a laborer employed by the railroad company, who was injured by the inability, because of a defective brake, to stop a hand car, on which he was engaged in the performance of his duty, in time to prevent a collision with a freight train. The hand car was in charge of the section boss of the company at the time of the accident, and was being run at a high rate of speed. The complaint also alleged that the telegraph operator at Cheney negligently failed to notify the plaintiff and his coemployés that, in going west on the section at that time, they would meet a freight train going east; and that the conductor and engineer of the freight train were negligent in running their train at great speed; and that the failure of defendant, through its agents. to use ordinary care in these particulars, was the proximate cause of the injury to the plaintiff. The amended answer admitted that it was the duty of the company to furnish its employés engaged in maintaining its track and roadbed with information concerning the movements of trains over the sections on which they were employed. A demurrer had been interposed to the complaint, on the ground. that it did not state facts sufficient to constitute a cause of action, which was overruled. This was assigned as error, but the circuit court of appeals declined to disturb the ruling of the trial court. With respect to the employer's duty to furnish correct information concerning the movements of its trains, as set forth by the complaint in that case, the court said that it was a direct, positive duty which the company owed to such of its employés as were exposed to danger by the movement of trains. There is nothing in the opinion which supports libelant's contention that a mere coemployé, through whose negligence another employé is hurt, is a vice principal simply because he fails to give a certain warning signal, by reason of which negligence a place of work, otherwise safe, is rendered dangerous, and injury results.

In Railroad Co. v. Holcomb, a decision of the appellate court of Indiana, reported in 36 N. E. 39, it appeared that plaintiff, a car repairer, at work on defendant's repair track, was struck by a car pushed by a switch engine, which came on the track without his knowledge, because no notice was given of the approach of the train by the brakeman, the person who had been charged with that duty. It seems that the brakeman had other duties to attend to, and that his attention was principally devoted to them. It was held that, although the company had furnished adequate rules and regulations to notify car repairers of the approach of trains, yet that, as no proper means to carry out such rules had been made, the company was liable. It was held, therefore, not error for the trial court to refuse to give an instruction which directed the jury that, if the company had provided rules that notice should be given, it had fully discharged its duty to plaintiff. The court said:

"It was the duty of appellant to make reasonable and adequate rules for the protection of its workmen. To require actual notice to the workmen, as in this rule provided, is certainly good, so far as it goes; but we are not prepared to say, as a matter of law, that this was all that was necessary. It was as much the duty of the company to provide reasonably adequate

means for giving the notice as to require it to be given. The case in hand furnishes an apt illustration of the inadequacy of such a rule; the brakeman having devolved upon him this duty only as an incident to the principal duties of his position, and performing this duty in a perfunctory, halfway manner, his attention being really given to other matters."

The inapplicability of this state of facts to the case at bar is evident. Here, the employer did furnish adequate means to give the required signal. He did detail a person whose duty it was to give the warning; and this person was, presumably, competent and able to discharge that duty, nothing to the contrary having been shown. Furthermore, there was not the slightest intimation at the hearing that his duties were so numerous or exacting, or that he was otherwise so engaged, that he could not attend to the giving of the sig nals in a careful and proper manner. In the case just cited, the court, further on in its opinion, does give expression to views of the law which would seem to sustain the contention of counsel for libelant. But, after a careful reading of the opinion as a whole, I have come to the conclusion that these remarks were intended to be made with reference, and should be considered in subordination, to what the court, in the first of its opinion, deems to be the liability of the master in not furnishing adequate means to give the requisite warnings. employer, undoubtedly, is under the positive duty of not only provid ing a competent person to give signals or warnings, when such a course is necessary in order to avert accidents and injury, but he must also provide a person whose duties are of such a nature that he can fully, properly, and carefully discharge the added duty of giving warnings. Obviously, the employer is not fulfilling his whole duty to his employés in detailing another employé to attend to signals or give warnings when the latter is so handicapped with other work that he cannot fully and properly discharge the duty of giving signals or warnings. Under this state of the facts, I cannot agree with counsel for libelant that that case is an unequivocal affirmance of the doctrine contended for. The same observation may be made with reference to the remainder of the cases cited by him, and it is unnecessary to review each authority referred to.

The

In my judgment, the libelant in this case was injured through the negligence of a coemployé, who, in law, is deemed to be a fellow servant, and not a vice principal. The employer discharged his full duty towards libelant when he provided a competent person to give the warning signals. Having done that, his responsibility for any injury sustained through the negligence of such coemployé to libelant was protected by the general rule which exempts employers from liability for injuries sustained through the negligence of fellow servants. Libelant, by his contract of employment, impliedly assumed all the ordinary risks of the business in which he was engaged, among which the negligence of fellow servants is recognized as one of the risks. As was well said in Steamship Co. v. Merchant, 133 U. S. 375, 379, 10 Sup. Ct. 397:

"The case, therefore, falls within the well-settled rule, as to which it is unnecessary to cite cases, which exempts an employer from liability for injuries to a servant caused by auother servant, and does not fall within any