Page:North Dakota Reports (vol. 1).pdf/370

 ter than the inferior servant, except in the enlarged field of his action, and the wider scope of the trusts confided tohim. They are both laboring for a common master in the same general business; both ultimately accountable to him; and employed, controlled, and discharged by him, either personally, or by some one selected by him for that purpose. The ultimate power to employ, control, and discharge is in his hands.

The reason for the fellow-servant rule applies with full force to the work of a servant, whatever the rank of the servant who performs it. It would be an anomalous condition of the law if the negligence of one servant was within the ordinary risks of the employment, while the negligence of another, no more prone to carelessness, should be without the domain of such risks merely because he had been set in a higher place of service by reason of superior skill or ability. Judge Cooley says: “In some quarters a strong disposition has been manifested to hold the rule not applicable to the case of a servant who at the time of the injury was under the general direction and control of another, who was intrusted with the duties of a higher grade, and from whose negligence the injury resulted. But it cannot be disputed that the negligence of a servant of one grade is as much one of the risks of the business as the negligence of a servant of any other; and it seems impossible, therefore, to hold that the servant contracts to run the risks of negligent acts and omissions on the part of one class of servants, and not those of another class. Nor, on grounds of public policy, could this distinction be admitted, whether we consider the consequences to the parties to the relation exclusively, or those which affect the public, who, in their dealings with the employer, may be subjected to risks. Sound policy seems to require that the law should make it for the interest of the servant that he should take care not only that he be not negligent himself, but also that any negligence of others in the same employment be properly guarded against by him so far as he may find it reasonably practicable, and be reported to his employer, if needful. And in this regard it can make little difference what is the grade of the servant who is found to be negligent, except as superior authority may render the negligence