WORK BEYOND SCOPE OF EMPLOYMENT.

When accident not due to the neglect of master's duties it must be held to be due to a risk incident to the business. Williams v. Northern Lumber Co., 113 Fed. Rep. 382.

Servant does not assume the risk of the place for work being unsafe. Swensen v. Bender, 114 Fed. Rep. 1.

Where all materials furnished by the master for raising a weight were proper and perfect, but by reason of the insecure fastening into the ground of an anchor post, the apparatus fell and injured plaintiff, there was no recovery, as the risk was that of the employment. Peschel v. Chicago &c. R. Co., 62 Wis. 338.

See Hoppin v. Worcester, 149 Mass. 222; Benn v. Null, 65 Iowa, 407.

Risk from unsafe condition of a wagon furnished him was not assumed. Boelter v. Ross Lumber Co., 103 Wis. 324.

(c). WORK BEYOND SCOPE OF EMPLOYMENT.

A servant who enters upon an employment from its nature hazardous, assumes the usual risks and perils of the service, and of the open, visible structures known to him, or which he might have known had he exercised ordinary care and observation. Williams v. D., L. & W. R. Co., 116 N. Y. 628.

Appel v. B., N. Y. & P. R. Co., 111 N. Y. 550; De Forest v. Jewett, 88 id. 264; Haas v. R. Co., 40 Hun, 145; Gibson v. Erie, 63 N. Y. 449; Powers v. Erie, 98 id. 274; Rorer on Railroads, vol. 2, p. 834, n. 2 &c.; Hart v. Naumburg, 123 N. Y. 642; Odell v. Ry., 120 id. 323.

Infant was called upon to work a pump which was liable to fall apart while in use, a task more dangerous than that which he was employed for. Recovery was allowed. Stimper v. Fuchs &c. Co., 26 App. Div. 333; s. c. aff'd, 161 N. Y. 636.

Engineer did not take any risk as to the condition of another company's tracks. Arkansas C. R. Co. v. Jackson, (Ark.) 67 S. W. Rep. 757. Risks of service beyond the scope of duty are not assumed where the service does not involve an act of imprudence. Dallemand v. Saalfeldt, 175 Ill. 310; aff'g s. c., 73 Ill. App. 151.

If servant is sent into extraordinary dangers or those beyond the scope of his employment, whether by the master or a superior servant, the master is liable for injury. Chicago &c. R. Co. v. Bayfield, 37 Mich. 210. Assumption of risk has no application outside the scope of one's employment. Supple v. Agnew, 191 Ill. 439; rev'g s. c., 80 Ill. App. 437. Where a person of apparently sufficient age, physical ability and mental calibre to perform the service, seeks employment of a master, he impliedly represents that he is competent to perform the duties of the

position, and competent to apprehend and avoid all dangers that are discoverable by ordinary care.

Work outside of employment servant does not represent himself to do, and hence is not presumed capable of avoiding its danger.

Servant's implied assumption of risk is limited to the particular work for which he is employed, and if master orders him to work temporarily in another department, where the work is of such a different nature and character that it cannot be said to be within the scope of the employment, and where he is associated with a different class of employés, he will not, by obeying such an order, necessarily assume the risks incident to the work, and the negligence of other employés; but otherwise if, voluntarily and without direction from proper authority, he goes into hazardous work outside of his contract of hiring. But master will not be liable if the circumstances show that the servant is competent to appreciate the danger, and expressly or impliedly assumes the risk. Pittsburg &c. R. Co. v. Adams, 105 Ind. 151.

Citing Atlas Engine Works v. Randall, 100 Ind. 293; Hill v. Gust, 55 id. 45; Hawkins v. Johnson 105 id. 29; Mann v. Oriental Works, 11 R. I. 152; 14 Am. Reg. (N. S.) 728, note; Railroad Co. v. Fort, 17 Wall. 553; Lalor v. Chicago &c. R. Co., 52 Ill. 401; Coombes v. New Bedford Cordage Co., 102 Mass. 572; Chicago &c. R. Co. v. Bayfield, 37 Mich. 205; Dowling v. Allen &c. Co., 74 Mo. 13; Wood's Master & Servant, secs. 349, 352, 439; Beach Cont. Neg., sec. 132; Thomp. Neg., pp. 975-6; sec. 7, p. 977; sec. 8, p. 979; sec. 9, p. 1016; sec. 21; Pierce R. 378.

Servant does not assume the risk incident to work beyond the scope of, and more hazardous than, the duties which he is hired to perform, unless he voluntarily goes into it. Indiana &c. Gas Co. v. Marshall, 22 Ind.

App. 121.

See, also, Cleveland &c. R. Co. v. Carr, 95 Ill. App. 576.

Quarry carpenter, by acting as a volunteer, was deprived of the right to have a lookout kept for his safety. Bowling Green Stone Co. v. Capshaw, (Ky.) 64 S. W. Rep. 507.

Act beyond the scope of employment involved danger, but did not, in view of the lack of deliberation, in the emergency, appear to be reckless or imprudent. Risk not assumed. Chicago &c. R. Co. v. McCarty, 49 Neb. 475.

Floor sweeper did not assume the risk of injury incident to wiping a moving belt, which was beyond the scope of his employment. Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100.

Elevatorman went to see what stopped his elevator. His act was not beyond his duty though he was ordered to report in case of trouble. Stone v. Boscawen Mills, (N. H.) 52 Atl. Rep. 119.

A fireman called upon by the engineer to aid in throwing on a belt,

WORK BEYOND SCOPE OF EMPLOYMENT.

and thus to work out of his sphere, subject to great and unknown risks, without information or caution, recovered from the master for injuries received, as the engineer represented the master. Mann v. Oriental &c. Works, 11 R. I. 152.

Where work is outside the scope of one's duties only such risks as are known or obvious are assumed. Ft. Worth &c. R. Co. v. Wrenn, 20 Tex. Civ. App. 628.

North Chicago Street R. Co. v. Conway, 76 Ill. App. 621; Felton v. Girardy, 104 Fed. Rep. 127; Hillsboro Oil Co. v. White, (Tex. Civ. App.) 54 S. W. Rep. 432.

Where an employé of mature years and ordinary intelligence consents to temporarily do work directed to be done outside of the employment for which he contracted, and he is injured while doing it, no negligence of the master can be predicated on this alone; as where the foreman of construction work was injured in coupling cars and did not recover therefor. Cole v. R. Co., 71 Wis. 114.

Distinguishing Dill v. Homrighausen, 79 Wis. 634.

The plaintiff contended that the master was liable on the ground that there was no presumption that he assumed the risk, on the authority of the following cases: Ohio &c. R. Co. v. Hammersley, 28 Ind. 374; Lalor v. C. B. &c. R. Co., 52 Ill. 401; Pittsburg &c. R. Co. v. Adams, 105 Ind. 151; Jones v. L. S. &c. R. Co., 49 Mich. 573; Mann v. Oriental Print Works, 11 R. I. 152; Chicago &c. R. Co. v. Bayfield, 37 Mich. 205; Broderick v. Detroit &c. Co., 56 id. 261; Cook v. S. P. &c. R. Co., 34 Minn. 45; Dowling v. Allen, 74 Mo. 13; Railroad Co. v. Fort, 17 Wall. 553; Benzing v. Steinway, 101 N. Y. 547; O'Connor v. Adams, 120 Mass. 427; but the court followed: McGinnis v. C. S. Co., 49 Mich. 466; Wormwell v. M. C. R. Co., 10 Atl. Rep. (Me.) 49; Rummell v. Dillworth, 111 Pa. St. 343; Leary v. B. & A. R. Co., 139 Mass. 587; Railroad Co. v. Fort, 17 Wall. 554; Cahill v. Hilton, 106 N. Y. 512; Wood's R. L. 1487; Hillsboro Oil Co. v. White (Tex. Civ. App.), 41 S. W. Rep. 874; Wood's M. & S., sec. 344.

Mere placing a person at temporary work outside of his employment, does not place the risk on the master, if he do not object and be an adult of ordinary capacity, and if he must have known the dangers he takes the risk. Paule v. Florence &c. Co., 80 Wis. 350.

VII. Fellow Servants.

Master not liable for injury from negligence of competent fellow servant: (1). A master is not liable to an employé for the negligence of a fellow servant. A master is not responsible to those in his employ for injuries resulting from the negligence, carelessness or misconduct of a fellow servant engaged in the same general business. Farwell v. Boston & Worcester R. Corp., 4 Metc. 49; Brown v. Maxwell, 6 Hill 592; Coon

v. Syracuse & Utica R. Co., 1 Seld. 492; Sherman v. Rochester & Syracuse R. Co., 17 N. Y. 153; Russell v. Hudson R. Co., id. 134; Boldt v N. Y. Cent. R. Co., 18 id. 432; Hayes v. Western R. Corp., 3 Cush. 270; Albro v. Agawam Canal Co., 6 id. 75; Ray v. Boston & Worcester R. Corp., 10 id. 112; Gillshanon v. Stony Brook R. Corp., 10 id. 228; Hutchinson v. York &c. Railway Co., 5 Exch. R. 343.

(2). The rule exempting the master is the same, although the grade of the employment is different, and the one injured is subject to the control of the one by whose negligence the injury is caused. Hayes v. Western R. Corp., supra; Albro v. Agawam Canal Co., supra; Wyman v. Jay, 5 Exch. 352.

(3). It is not necessary that the servants, the one injured and the one causing it, should be engaged in the same work or operation. Boldt v. N. Y. Cent. R. Co., Coon v. Syracuse & Utica R. Co., Farwell v. Boston & Worcester R. Corp., Albro v. Agawam Canal Co., Gillshanon v. Stony Brook R. Corp., Wyman v. Jay, Hutchinson v. York & Newcastle Branch Railway Co., supra. The question is, whether they are under the same general control. Abraham v. Reynolds, 5 Hurl. &

Norm. 142.

(4). The master is liable for personal negligence in employing unfit servants and agents, or in the furnishing of the work to be done, or the machinery supplied. Priestly v. Fowler, 3 M. & W. 1; Hayden v. Smithville Man. Co., 29 Conn. 548; Robert v. Smith, 2 Hen. & Man. 213; Williams v. Clough, 3 id. 257; Griffiths v. Godson, id. 648; Wyman v. Jay, supra; Owens v. Holland, Ellis, Blackb. & Ell. 102; Keegan v. W. R. Corp., 4 Seld. 175; Patterson v. Wallace, 28 L. & E. 48; Marshall v. Stewart, 33 id. 1.

(5). If the servant injured has same means of knowledge as master of unskillfulness of the servant, or deficiencies in the appliances, he cannot recover. Priestly v. Fowler, 3 M. & W. 1; Hayden v. Smithville Man. Co., Griffiths v. Godson, Williams v. Clough, Keegan v. Western R. Corp., Paterson v. Wallace, supra; Skip v. Eastern Counties Railway Co., 24 L. & E. 396; s. c., 9 Exch. 223; Wright v. N. Y. C. R. Co., 25 N. Y. 562.

Where, upon the trial of an action brought to recover damages resulting from the death of the plaintiff's intestate by reason of the alleged negligence of the defendant, it is shown that the accident which caused the death of the plaintiff's intestate was the result of negligence on the part of a co-employé of the plaintiff's intestate, damages therefor cannot be recovered from the employer. Herrington v. Lake Shore & Michigan Southern R. Co., 83 Hun, 365.

WHEN THEY HAVE A COMMON MASTER.

Master is not responsible for the acts of competent fellow servant. Nolan v. New York &c. R. Co., 70 Conn. 159.

Summerhays v. Kan. Pac. R. Co., 2 Colo. 484; Kindel v. Hall, 8 Colo. App. 63; Davis v. Muscogee Man. Co., 106 Ga. 126; Kerr v. Crown Cotton Mills, 105 id. 510; Terre Haute &c. R. Co. v. Leeper, 60 Ill. App. 194; Chicago &c. R. Co. v. Libey, 68 id. 144; Illinois Steel Co. v. Bauman, 78 id. 73; s. c., aff'd, 178 Ill. 351; Small v. Allington &c. Man. Co., 94 Me. 551; Wosbigian v. Washburn &c. Man. Co., 167 Mass. 20; Gorman v. Woodbury, 173 id. 180; Healey v. Blake Man. Co., 180 id. 270; Walkowski v. Penokee &c. Mines, 115 Mich. 629; s. c., 41 L. R. A. 33; Duncan v. Roberts Co., 194 Pa. St. 563; Northern P. R. Co. v. Peterson, 162 U. S. 346; Chicago &c. R. Co. v. Kellogg, 54 Neb. 127; Cooper v. Milwaukee &c. R. Co., 23 Wis. 668.

The rule applied in favor of a receiver of a company. Youngblood v. Comer, 97 Ga. 152.

Brown v. Comer, 97 Ga. 801; Peirce v. Oliver, 18 Ind. App. 87.

(a). WHEN SERVANTS ARE FELLOW SERVANTS.

1. WHEN THEY HAVE A COMMON MASTER.

Captain of lighter and employé of shipper have not. Anderson v. Boyer, 13 App. Div. 258.

Brakeman, an employé of a licensee or lessee railroad was not a coservant with engineer of licensor or lessor though the trains of the former road were subject to the directions of the latter's division superintendent. Hurl v. New York &c. R. Co., 68 App. Div. 400.

See, also, Brennan v. Berlin &c. Build. Co., 74 Conn. 382.

The drumman of a hoisting machine in the employ of the ship owner was not a fellow servant with one in the employ of the stevedore, though both were engaged in loading the ship. Lauro v. Standard Oil Co., 76 N. Y. Supp. 800.

Car inspector of one company was not the co-servant of a switchman of another, though both were members of an association which occupied the premises. Kastl v. Wabash R. Co., 114 Mich. 53.

Kunzman v. Lehigh Valley R. Co,. 10 Pa. Super. Ct. 1.

That two companies use the track of a third under rules made by the latter does not make their employés fellow servants. Smithson v. Chicago &c. R. Co., 71 Minn. 216.

Where a railroad porter and an express company's messenger under a joint arrangement between the companies, engaged in unloading express and baggage together, they were held co-servants. San Antonio &c. R. Co. v. Raylor, (Tex. Civ. App.) 35 S. W. Rep. 855.

A car accountant of a terminal company, held not the fellow servant