Page:North Dakota Reports (vol. 1).pdf/375

 it would be extremely difficult to establish a practical rule. * * * When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department, and what a distinct department, of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be the same or different departments? Besides, it appears to us that the argument rests up an assumed principle of responsibility which does not exist. The master in the case supposed is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; * * * and he is not liable in tort as for the negligence of his servant because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow-servant does not depend exclusively upon the consideration that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments cannot create that liability where it does not arise from express or implied contract, or from a responsibility created by law to third persons and strangers for the negligence of a servant.” Itis thus apparent that there is nothing in the fact that an inferior servant may not be able to exert any influence for safety over his superior to justify the refusal to apply the fellow-servant rule. On principle, we are opposed to the doctrine of the Ross case, 112 U. 8. 377, 5 Sup. Ct. Rep. 184 We believe that the true rule was stated and applied in Crispin v. Babbitt, 81 N. Y. 516: “The liability of the master does not depend upon the grade or rank of the employe whose negligence causes the