Page:Federal Reporter, 1st Series, Volume 8.djvu/560

 546 PBPERAL. BEPOBTEE. �him their agent and representative for this purpose, and to require plaintiff to receive its orders in this way. I am of the opinion that in respect to the duty of delivering or showing the running orders to the engiheer the conductor was the superior of the engineer ; that he stood in the place and stead of the company, and was, for that pur- pose, a vice-principal. It.follows from this that if the accident com- plained of was the resuit of the negligence of the conductor in failing to deliver the running orders to the plaintiff on the night of the acci- dent, the plaintiff must recover unless his own negligence caused or (iontributed to the injury. And upon that subject — of contributory negligence on the part of the plaintiff — I will speak presently. That is all, I think, that need bje said to you upon that branch of the case. conductor to deliver the order concerning the running of the train that night to the plaintiff, who was the engineer, and if you also find that plaintiff was injured, and that he did not contribute to his injury by any negligence of his own, then the law is that the defendant is liable. Because I hold that, under the order to which I have called your attention, the relation of superior and inferior was created by the company as between these two servants in the partic- ular niatter of the operation of its trains, and they were not, within the meaning of the law, fellow servants engaged in the same common employment. �But the plaintiff claims to recover upon another ground, and it will be your duty to pass upon that also. He claims that he is enti- tled to recover upon the ground that McClintock, the conductor, was a negligent and unfit person to be entrusted with the duties of a con- ductor; and that the defendant company had sufiicient notice of that fact before the accident, and continued him in its service. This is denied by the defendant, and the issue thus joined, being one purely of fact, is for you to determine from all of the evidence before you. �When the plaintiff entered the service of the defendant he volun- tarily assumed all the usual and ordinary risks belonging to the occu- pation in which he was about to engage; but the company also became obligated to use proper diligence in furnishing him with rea- sonably suitable and proper machinery with which to work, and also in the employment of fellow servants who should have ordinary fit- ness and competency for the performance of their duties. In other words, it was the duty of the company not to subject plaintiff to any extraordinary or unusual danger by employing, knowingly, other serv- ants to operate the trains with him who are negligent or incompe- ��� �
 * If you find that the accident was caused by the failure of the