Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/371

 PART IV.] LIABILITY FOR TORTS OF AGENTS. [§ 366. corporation as master is bound to perform for the safety and protection of employes cannot be delegated so as to exonerate it from liability to the employes for omissions in the discharge thereof. 1 This seems the true principle, though many author- ities do not hold to it. 2 § 366. The corporation will not be liable unless the servant's injury arises from a breach of one of these obligations. 3 All other risks connected with his employment, as between himself and the corporation, the servant is held to assume ; as, for instance, the negligence of co-servants who have been properly selected, and the ordinary risks connected with the use of dan- gerous machinery. 4 If, however, negligence imputable to the 1 Fuller v. Jewett, 80 N. Y. 46; Northern Pac. R. R. Co. v. Herbert, 116 U. S. 642; see, Story v. Concord & M. R. R. Co., 70 N. H. 364. A con- tract by a railroad company with the next of kin of a person about to enter its employment, by which, in con- sideration of such employment, the next of kin agrees to release the rail- road company for all liability for damages that might occur to such person by reason of the company's negligence during the employment, is contrary to public policy and void. Tarbell, Admr., v. Rutland R. R. Co., 73 Vt. 347. 2 Some decisions hold that when one employe is placed under the di- rection of another, the two are not co-employes, and the corporation is liable to the inferior employe for in- juries resulting from the negligence of the superior employe. Thus, a railroad company has been held lia- ble to an engineer or a brake man for injuries caused by the negligence of the conductor of the same train. Chicago and M. R. R. Co. v. Ross, 112 U. S. 377 (Justices Bradley, Mat- thews, Gray, and Blatchford dissent- ing); Cleveland, C. and C. R. R. Co. V. Keavy, 3 O. St. 201; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415. See Pittsburgh, Ft. W. and C. Ry. Co. v. Lewis, 33 O. St. 196; Jackson v. N. & W. R. R. Co., 43 W. Va. 380. Con- tra, Lawler v. Androscoggin R. R. Co., 62 Me. 463; O'Connell v. Balti- more and O. R. R. Co., 20 Md. 212; Shanck v. Northern Central Ry. Co., 25 Md. 462; and Chicago and M. R. R. Co. v. Ross, 112 IT. S. 377, was overruled in Baltimore and O. R. R. Co. v. Baugh, 149 U. S. 368, which holds an engineer and fireman of a locomotive to be co-employes within the rule. Ace. N. E. R. R. Co. v. Conroy, 175 U. S. 323; Welsh v. P. R. R. Co., 192 Pa. St. 69. A track layer and an engineer are fellow servants. Benignia v. P. R. R. Co., 197 Pa. St. 384. Inspectors and brakemen are not fellow servants. Eaton v. N. Y. C. & H. R. R. Co., 163 N. Y. 391. 3 Henry v. Lake Shore, etc., Ry. Co., 49 Mich. 495. Compare Kansas Pac. Ry. Co. v. Peavy, 29 Kans. 169. 449; Coon t Syracuse, etc., R. R. Co., 5 N. Y. 492; Randall v. Balti- more and O. R. R. Co., 109 U. S. 478; Morse v. Minneapolis, etc., Ry. Co., 30 Minn. 465; Wood v. New Bedford Coal Co., 121 Mass. 252; Kelley v. Norcross, ib. 508; Ryan v. Cumber- land Valley R. R. Co., 23 Pa. St. 384; 351
 * Gibson v. Erie Ry. Co., 63 N. Y.