Page:Federal Reporter, 1st Series, Volume 10.djvu/727

 GBATBLLE V. MINNEA.POLIS & ST. LOUIS Ei. CO. 'Sll.5 �same common service witb the plaintiff, or wliether he was there on the part of the company. And you may be governed by the following rule : "Fellow-servants, within the meaning of the law, are such as are employed in the same service, and subject to the same general contract. But if a railroad company sees fit to invest one of its servants with control or superior authority over another with respect to any particular part of his business, the two are not, with respeot to such business, fellow-servants within the meaning of the law. One is, in such a case, subordinate to the other, and the superior stands in place of the corporation." So, if you find, in your investigations, that the plaintiff was injured by the negligence of its assistant yard- master, then you will inquire whether the plaintiff was a subordinate with respect to the duties which he was then performing, — if he was under the control and direction of the assistant yard-master, by the rules of the railroad company, in the performance of the duty which he was then performing. If so, I charge you as a matter of law that they were not fellow-servants within the meaning of the rule. �Now there is another question in the case upon which there is, per- haps, some conflict of testimony. It is alleged by the plaintiff that these two officiais, the assistant yard-master and the engineer in charge of the engine and tender, were both negligent, incompetent, and unfit persons for the positions which they held, and that this was known to the defendant; and that it was guilty of negligence in employing them, or continuing to employ them; whereby the plain- tiff bas a right to complain that he was injured on account of that negligence. Upon that subject the law is that when the plaintiff entered the service of the railroad company he assumed all the ordi- nary risks incident to the employment upon which he entered. He knew that he was entering upon a dangerous business, and therefore assumed all the risks ordinarily incident to the performance of the duties that he undertook to perform. On the other hand, the rail- road company agreed, by the implication of the law, that they would not subject him to extraordinary or unusual perils or dangers; and, among other things, they agreed that they would employ for service with him persons uf reasonable competency and fitness for their du- ties, and he had a right to expect that. The law presumes, however, that the railroad company, in employing its servants, exercised usual care and prudence, and if the plaintiff seeks to recover on the ground that it f ailed in that respect, it is incumbent upon him to prove this : lu the first place, that these servants were incompetent and unfit per- ��� �
 * sons; and, in the second place, that the railroad company had notice