sustained. The learned trial justice, in refusing to direct a verdict, said: "It is with very great misgiving that I hold the case. I confess to very great doubt of the right of recovery." And in his instructions to the jury he said: "Now, I have decided to leave to you, as the only possible question of any neglect or default on the part of the defendant, this: Whether it was reasonable care for the safety of the employees compelled to walk, or having the right to walk, up and down that passageway, and out of the doors, to have an unguarded opening containing hot water near enough to the passageway to render it probable that a person walking along the passageway, using reasonable care, might fall into the water. You will remember that on the occasion when Sofield did fall into this pit it was guarded for a portion of its length upon the side next to the though this might be so when two or more serv- | ants are employed in the same department of duty, where each can exert some influence over the conduct of the other, and thus to some extent provide for his own security, yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree control or influence the conduct of another. But we think this is founded upon a supposed distinction on which 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 in the same or different departments? Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master in the case supposed is not exempt from liability because the servant has other 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 anyone 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 when 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." In The Petrel [1893] P. 320, Jeune, P., agreed with Chief Justice Shaw that physical contiguity does not afford a distinction on which a practical rule can be established, and said: "In all cases the immediate instrument of physical injury must be contiguous to the person injured, and in most cases the person who causes passage by being covered by one or more planks, so that the opening into which he fell must have been, I take it, all of 3 feet back from the line of the door jamb, and it may be somewhat difficult to see how a person using that passageway with ordinary eare could have fallen into the water if the pit was in that condition. I can see no other ground of possible liability." Under the facts of this case, there existed no possible ground of liability. The defendant had constructed a pit which, when in use, was highly dangerous to fall into. When it was in use it must of necessity, in the operation of the business, be entirely or partly open, and it had furnished for it the most secure safeguard which could be used when it provided sufficient, fit and suitable planking to cover it, when necessary, when it was not in use, or during any intermission physical injury is not far from the person to whom it results. But I suppose that the signalman at one end of a rifle-range is clearly in common employment with the marker at the other, when the two have a common master; and, to give a stronger instance, a servant who unskilfully packs dynamite in a factory, and another who in unpacking it at a distant warehouse is injured by its explosion, are clearly in common employment. On the other hand, mere contiguity, if unusual or accidental, would not be consistent with common employment." To the same effect is the opinion of the New York court of appeals. "The same rule of liability must necessarily apply as well where the employments of the servants are distinct as to cases where they are one. If a servant cannot look to his employer for indemnity where, notwithstanding the exercise of due care on his part, he is injured by the carelessness of a fellow servant laboring near him in the same particular employment, why should he be permitted to do so when, with the same care on his part, he suffers injury by the negligence of another servant in the same general business, but at the time engaged, equally near him, in some different duty? If proximity or remoteness of position is to have influence, where is the line?" Sherman v. Rochester & S. R. Co. (1858) 17 N. Y. 153, 157. The doctrine of common employment is not limited to those cases in which "there is a connection between the different grades of employment bringing the servants into contact with each other." International & G. N. R. Co. V. Ryan (1891) 82 Tex. 565, 18 S. W. 219. This decision seems to overthrow the effect of the earlier dictum of the same court that, if public policy is to be taken as the true ground, "the rule should be confined to those juxtaposition that one would be enabled to observants whose duties bring them into such serve the negligence of his fellows." St. Louis, A. & T. R. Co. v. Welch (1888) 72 Tex. 298, 2 L. R. A. 839, 10 S. W. 529. If a servant cannot look to his employer for indemnity where, notwithstanding the exercise of due care on his part, he is injured by the carelessness of a fellow servant laboring near him in the same particular employment, why should he be permitted to do so when, with the same care on his part, he suffers injury by the negligence of another servant in the same general business, but at the time engaged equally near him, in some different duty? If proximity or remoteness of position is to have influence where is the line? And what substantial differ The deceased, Sofield, and the workmen at furnace No. 1 were fellow servants. They were engaged in the same common employment in the operation of these furnaces, and he assumed the dangers arising from the negligence of his coemployees in the performance of their duties to the defendant in such employment, and the cause of the accident, independent of incidental or obvious dangers, or those which arose by reason of his concoservants to use the means and appliances provided by the master for the work, for their own and for his protection from danger. In other words, it was the failure of his fellow workmen during the intermission of the (1889) 73 Tex. 85, 11 S. W. 156; Dealey v. Philadelphia & R. R. Co. (1886; Pa.) 3 Cent. Rep. 112, 4 Atl. 170; Dana v. New York C. & H. R. R. Co. (1881) 23 Hun, 473; Byrnes v. New York, L. E. & W. R. Co. (1889) 113 N. Y. 251, 4 L. R. A. 151, 21 N. E. 50; Gates v. Chicago, M. & St. P. R. Co. (1892) 2 S. D. 422, 50 N. W. 907. of its use or disuse of it. This planking | gebregsten, 57 N. J. L. 400, 31 Atl. 619; Harwas a perfect safety appliance for the pro- vey v. New York C. & H. R. R. Co. 88 N. Y. tection of employees or co-employees in their 481; Walker v. Boston & M. R. Co. 128 Mass. work at the blast furnaces in connection 8. with the pit, easily adjustable for that purpose. There was, under the conceded facts of this case, no want of reasonable care on the part of the defendant in furnishing proper appliances for its servants to use in their own protection, or the protection of their coemployees in the performance of their work and their duties to the master. Where the use of appliances or safeguards affects the safety of the place, the exercise of reasonable care in this respect relieves the mas-tributory negligence, was the failure of his ter from liability. McAndrews v. Burns, 39 N. J. L. 117; McLaughlin v. Camden Iron Works, 60 N. J. L. 557-559, 38 Atl. 677; Maher v. Thropp, 59 N. J. L. 186, 35 Atl. 1057; Nord Deutscher Lloyd S. 8. Co. v. Inence is there between a case of injury from the negligence of a servant with superior authority, and one from like negligence of a servant of equal authority, employed at a distance from and without the immediate influence of the party injured? How could the latter better guard against the injury in the case last mentioned than in the former one? If distance is to have effect, what shall the distance be? It is manifest that no distinction or exemption as to liability of the principal, resting on the ability of the injured party to protect himself in the particular case, could be made without practically abrogating the entire rule. Sherman v. Rochester & S. R. Co. (1858) 17 N. Y. 157. In some cases it has been held generally that a telegraph operator at a wayside station is a fellow servant of the men operating trains. Price v. Detroit, G. H. & M. R. Co. (1891) 145 U. S. 651, 36 L. ed. 843, 12 Sup. Ct. Rep. 986 (memorandum judgment; decision affirmed by a divided court); Slater v. Jewett (1881) 85 N. The most striking illustrations of the doc- Y. 61, 39 Am. Rep. 627 (operator failed to comtrine in the text are the cases in which tele-ply with rule that orders regarding trains graph operators have been held to be in a common employment with trainmen. d. Illustrative cases of common employment. 1. Railway work. In the decisions clted below the principles developed in the preceding sections were held to require the conclusion that there was a common employment. The decisions are arranged under headings adapted to facilitate a comparison with the rulings (III. infra, under the doctrine of consociated duties). which were behind time should be communicated to conductors and engineers in the presence of each other). In other cases it has been conceded that the telegraph operator was in a common employment with trainmen, and the ground on which it was sought unsuccessfully to hold the master responsible was that he was a vice principal. Baltimore & O. R. Co. v. Camp (1895) 13 C. C. A. 233, 31 U. S. App. 213, 65 Fed. Rep. 952; Oregon Short Line & U. N. R. Co. v. Frost (1896) 21 C. C. A. 186, 44 U. S. App. 606, 74 Fed. Rep. 965; Cincinnati, N. O. & T. P. R. Co. v. Clark (1893) 6 C. C. A. 281, 16 U. S. App. a. Servants working in the office departments | 17, 57 Fed. Rep. 125; Blessing v. St. Louis, K. and operating trains. A station agent is a fellow servant of a brakeman. Toner v. Chicago, M. & St. P. R. Co. (1887) 69 Wis. 188, 31 N. W. 104, 33 N. W. 433. The court said: "They were both certainly in the employ of the company, and were both engaged in a sense in operating train No. 26 True. the station agent was required to keep the main track free from all obstructions for all trains as well as No. 26; but this fact did not render him any the less a fellow servant of the plaintiff in the work in which both were engaged. They were both fellow servants within the rule,-as much so as they would have been if the station agent had had no other duty to perform but to see that the main track was kept unobstructed for this train No. 26." In the following cases a station agent has been held to be the fellow servant of a trainman, but the point taken was that the former was a vice principal, not that he was in a different department: Lewis v. Seifert (1887) 116 Pa. 628, 11 Atl. 514; Brown v. Minneapolis & St. L. R. Co. (1884) 31 Minn. 553, 18 N. W. $34: Galveston, H. & S. A. R. Co. v. Farmer C. & N. R. Co. (1883) 77 Mo. 410: Monaghan v. New York C. & H. R. R. Co. (1887) 45 Hun, 113; Dealey v. Philadelphia & R. R. Co. (1886; Pa.) 3 Cent. Rep. 112, 4 Atl. 170; McKaig v. Northern P. R. Co. (1889) 42 Fed. Rep. 288; Norfolk & W. R. Co. v. Hoover (1894) 79 Md. 253, 25 L. R. A. 710, 29 Atl. 994; Reiser v. Pennsylvania Co. (1892) 152 Pa. 39, 25 Atl. 175. In Sheehan v. New York C. & H. R. R. Co. (1883) 91 N. Y. 332 (regulations held insufficient); and Sutherland v. Troy & B. R. Co. (1891) 125 N. Y. 737, 26 N. E. 609 (incompetency alleged), the same doctrine was assumed, but the cases went off on the points noted. In the latest and most authoritative rulings a distinction is taken between train despatchers and telegraph operators. the former only being regarded as vice principals. Lewis v. Seifert (1887) 116 Pa. 628, 11 Atl. 514; Hankins v. New York, L. E. & W. R. Co. (1894) 142 N. Y. 416, 25 L. R. A. 396, 37 N. E. 466. But in an early New York case both these functionaries seem to be placed on the same footing as mere fellow servants, the later dis work to cover with the planks provided the open space of the pit, and this was a part of their duty in the performance of the work in which they were engaged. The restoration of this planking would have been a complete and perfect security to the deceased from any danger whatever. It was the means or appliances which had been furnished by the defendant, as master, for that purpose and for their use, and the failure to have the pit covered, at the time of the accident to Sofield, if negligent, was the act of his coservants in this common employment, for which the defendant cannot be liable. It was a negligent act in the performance of their duty. It will be observed that this work commenced with the uncovering of the pit at 7 o'clock. As the work of filling the pit with molten copper progressed from the edge the tinctions not being adverted to. Chapman v. Erie R. Co. (1874) 55 N. Y. 579 (case really turned on allegation of incompetency). So, an employee who seems from the report to have been a divisional train despatcher has been held to be a fellow servant of a brakeman, the theory of vice principalship not being referred to; and nonliability was predicated simply on the ground that their duties related to the same general object. Robertson v. Terre Haute & I. R. Co. (1881) 78 Ind. 77, 41 Am. Rep. 552. See also Sullivan v. Toledo, W. & W. R. Co. (1877) 58 Ind. 26, which seems, by implication, to uphold the same doctrine. So, in an action for the death of the plaintiff's intestate while acting as a fireman, which occurred in a collision through the negligence of the defendant's train despatcher charged with the duty of "directing" the movements of trains, the court held that the train despatcher was the fellow servant of the intestate. Millsaps v. Louisville, N. O. & T. R. Co. (1891) 69 Miss. 423, 13 So. 696. b. Servants engaged in handling the same train. In the absence of evidence showing vice principalship, all servants of a common master employed in running, operating, and rendering service with a train of cars are fellow servants. Blessing v. St. Louis, K. C. & N. R. Co. (1883) 77 Mo. 410; McGowan v. St. Louis & I. M. R. Co. (1876) 61 Mo. 528. These employees are plainly engaged in services necessary to the accomplishment of a single purpose, the movement of trains. Pittsburgh, C. C. & St. L. R. Co. v. Ranney (1882) 37 Ohio St. 665. Hence the following employees are coserv ants: A conductor and the engineer. Eckles v. Norfolk & W. R. Co. (1896) 96 Va. 69, 25 S. E. 545; Michigan C. R. Co. v. Dolan (1875) 32 Mich. 510; Dillon v. Union P. R. Co. (1874) 3 Dill. 319, Fed. Cas. No. 3,916. A conductor and a fireman. Jenkins v. Richmond & D. R. Co. (1893) 39 S. C. 507, 18 S. E. 182 (negligence in signaling); Eckles v. Norfolk & W. R. Co. (1896) 96 Va. 69, 25 S. E. 545; Summerhays v. Kansas P. R. Co. (1875) 2 Colo. 484. A conductor and a brakeman. Pease v. Chicago & N. W. R. Co. (1884) 61 Wis. 163, 20 N. W. 908 (cars negligently moved); Hoover v. Beech Creek R. Co. (1893) 154 Pa. 362, 26 Atl. 315 (negligence in signaling); Sherman V. Rochester & S. R. Co. (1853) 15 Barb. 574, Af planking was relaid, and at the intermission left partly uncovered. If there was any duty due the deceased at that time it was that the pit should have been re-covered by these workmen and the failure to recover was a neglect of their duty to him to perform their work with reasonable care to protect him from danger. The very want of safety was caused solely by the work which his coservants were performing. The place, the appliances for protection, and the work were all coincident. The general rule of the assumption by the servants of dangers arising from the risks by reason of the negligence of coservants is well established and needs no repetition. In Curley v. Hoff, 62 N. J. L. 758, 42 Atl. 731, this court held the rule of fellow servants to be "as applicable to a case where the work involves the place of working as to any firmed in (1858) 17 N. Y. 153 (train allowed to attain a dangerous speed); La Pierre v. Chicago & G. T. R. Co. (1894) 99 Mich. 212, 58 N. W. 60 (car placed so that a long plank had to be used for a gangway, and this broke under the weight of the heavy parcels which the conductor required the servant to carry); Robinson v. Houston & T. C. R. Co. (1877) 46 Tex. 540 (ordering brakeman to cut a train in motion); Norfolk & W. R. Co. v. Houchins (1897) 95 Va. 398, sub nom. Norfolk & W. R. Co. v. Swaine, 46 L. R. A. 359, 28 S. E. 578; Wooden v. Western N. Y. & P. R. Co. (1895) 147 N. Y. 508, 42 N. E. 199, Reversing (1893) 5 Misc. 537, 25 N. Y. Supp. 977. A conductor and an employee hired to do "any and all kinds of labor," including coupling. Wilson v. Madison, etc., R. Co. (1862) 18 Ind. 226. A petition is demurrable which merely avers that the plaintiff, a brakeman, was injured by the negligence of his conductor, and does not allege that the company was negligent in employing such conductor. Dow v. Kansas P. R. Co. (1871) 8 Kan. 642 (the court was inclined to except from the operation of the doctrine of coservice only the higher officers who had authority to hire and discharge the other employees). Engineer and brakeman. McDonald v. Norfolk & W. R. Co. (1897) 95 Va. 98, 27 S. E. 821; Central Trust Co. v. East Tennessee, V. & G. R. Co. (1895) 69 Fed. Rep. 357; Sherman v. Rochester & S. R. Co. (1853) 15 Barb. 574, Affirmed in (1858) 17 N. Y. 153; East Tennessee, V. & G. R. Co. v. Smith (1890) 89 Tenn. 114, 14 S. W. 1077; South Florida R. Co. v. Price (1893) 32 Fla. 46, 13 So. 638; Boatwright v. Northeastern R. Co. (1886) 25 S. C. 128; Hagins v. Cape Fear & Y. Valley R. Co. (1890) 106 N. C. 537, 11 S. E. 590 (complaint demurrable which alleged that at the time of the injury the locomotive was temporarily abandoned by the engineer in charge, and, with his consent and by his direction, was moved and operated by a boy, of inexperience and careless habits, who was incompetent, reckless, careless, and negligent, which was the proximate cause of the plaintiff's injury); Evans V. Chamberlain (1893) 40 S. C. 104, 18 S. E. 213; Moseley v. Chamberlain (1861) 18 Wis. 706, Overruling Chamberlain v. Milwaukee & M. R. Co. (1860) 11 Wis. 239, by a majority of two judges to one: Pittsburgh, C. & St. L. R. Co. v. Ranney (1882) 37 Ohio St. 665; Moran v. New York C. & H. R. R. Co. (1874) 67 Barb. 96; Wallis v. Morgan's L. & T. R. & S. S. Co. (1886) 38 La. Ann. 156; other. . . There was no lack or inadequacy of materials for sheathing and bracing. The fault, if any, was entirely with the servants engaged in the work, and not with the master. The foreman in this regard was the fellow servant with the plaintiff. The test always must be whether the negligent act or omission was in the discharge of the master's or the servant's duty. . . . In the Ingebregsten Case it was acknowledged that inspection incidental to the use of a tool or appliance was the servant's, not the master's, duty. So, in the case in hand, the keeping safe a place of working incidental to the work itself was the servant's, not the master's, duty." In McLaughlin v. Camden Iron Works, 60 N. J. L. 557, 559, 38 Atl. 677, Mr. Justice Collins, writing the opinion, said: "Where appliances for work are needed, the duty is on Hoover v. Beech Creek R. Co. (1893) 154 Pa. 362, 26 Atl. 315; South Florida R. Co. v. Weese (1893) 32 Fla. 212, 13 So. 436; Chaddick v. Lindsay (1897) 5 Okla. 616, 49 Pac. 940: Indiana, B. & W. R. Co. v. Dailey (1886) 110 Ind. 75, 10 N. E. 631; Summerhays v. Kansas P. R. Co. (1875) 2 Colo. 486 (cars started without a signal). the master to use reasonable care in their A conductor, coupler, signal man, pin puller, and engineer, all engaged in drilling cars in a railroad yard, are fellow servants. Central R. Co. v. Keegan (1897) 27 C. C. A. 105, 51 U. S. App. 489, 82 Fed. Rep. 174 (so laid down on authority of Supreme Court (1895) 160 U. S. 259, 40 L. ed. 418, 16 Sup. Ct. Rep. 269), to which the case had been certified for an opin c. Servants working on different trains. In an early English case Pollock, C. B., expresses a doubt, obiter, whether the drivers of the engines of different trains are engaged in a common object. Waller v. South Eastern R. Co. (1863) 2 Hurlst. & C. 102, 9 Jur. N. S. 501, 32 L. J. Exch. N. S. 205, 11 Week. Rep. 731, 8 L. T. N. S. 325. Engineer and fireman. Hobbs v. Atlantic & N. C. R. Co. (1890) 107 N. C. 1, 9 L. R. A. 838, 12 S. E. 124; Murray v. South Carolina R. Co. (1841) 1 McMull. L. 385, 36 Am. Dec. 268; Gulf, C. & S. F. R. Co. v. Blohn (1889) 73 Tex. 637, 4 L. R. A. 764, 11 S. W. 867; New Jersey | ion). & N. Y. R. Co. v. Young (1892) 1 C. C. A. 428, 1 U. S. App. 96, 49 Fed. Rep. 723; Henry v. Lake Shore & M. S. R. Co. (1892) 49 Mich. 495, 13 N. W. 832; South Florida R. Co. v. Price (1893) 32 Fla, 46, 13 So. 638; Parrish v. Pensacola & A. R. Co. (1891) 28 Fla. 251, 9 So. 696; South Florida R. Co. v. Weese (1893) 32 Fla. 212, 13 So. 436; Mulligan v. Montana Union R. Co. (1897) 19 Mont. 135, 47 Pac. 795. That the engine is running without any train attached makes no difference in this instance. Baltimore & O. R. Co. v. Baugh (1893) 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914. Fireman and brakeman. Louisville & N. R. Co. v. Kelly (1894) 11 C. C. A. 260, 24 U. S. App. 103, 63 Fed. Rep. 407; Galveston, H. & S. A. R. Co. v. Faber (1885) 63 Tex. 344: Kersey v. Kansas City, St. J. & C. B. R. Co. (1883) 79 Mo. 362: Greenwald v. Marquette, H. & O. R. Co. (1882) 49 Mich. 197, 13 N. W. 513; South Florida R. Co. v. Price (1893) 32 Fla. 46, 13 So. 638. Two brakemen in the performance of their ordinary duties. Young v. West Virginia C. & P. R. Co. (1896) 42 W. Va. 112, 24 S. E. 615; Cole v. Rome, W. & O. R. Co. (1893) 72 Hun, 467, 25 N. Y. Supp. 276; Hayes v. Western R. Corp. (1819) 3 Cush. 270 (here the negligent brakeman was acting as conductor); Chicago, B. & Q. R. Co. v. Howard (1895) 45 Neb. 570, 63 N. W. 872. Trainmen and engine wipers. Ewald v. Chicago & N. W. R. Co. (1888) 70 Wis. 420, 36 N. W. 12. Engineer and fireman and man "staking" cars. Watts v. Hart (1893) 7 Wash. 178, 34 Pac. 423, 771. Trainmen and expressman hired for the trip to act as brakeman. Chamberlain v. Milwaukee & M. R. Co. (1860) 7 Wis. 425 (upon the second appeal (1860) 11 Wis. 248, the servant was held entitled to recover, the doctrine of common employment being repudiated. But the law in But this doubt has long since been resolved against the servant, and it is now settled that trainmen, although engaged on different trains, are fellow servants. Norfolk & W. R. Co. v. Houchins (1897) 95 Va. 398, sub nom. Norfolk & W. R. Co. v. Swaine, 46 L. R. A. 359, 28 S. E. R. Co. v. Ruby (1871) 38 Ind. 294, and cases 578, and cases cited; Pittsburgh, Ft. W. & C. cited. negligence is predicated on the obvious ground The assumption of the risks of one another's that they are "aware that many other trains must pass over the same track as their own train." Thom v. Pittard (1894) 10 C. C. A. 352, 8 U. S. App. 597, 62 Fed. Rep. 232. This rule has been applied in the case of the following employees : A conductor of one train and the employee on another. Oakes v. Mase (1897) 165 U. S. 363, 41 L. ed. 746, 17 Sup. Ct. Rep. 345, Affirming Northern P. R. Co. v. Mase (1894) 11 C. C. A. 63, 27 U. S. App. 238, 63 Fed. Rep. 114: Baltimore & O. R. Co. v. Andrews (1892) 17 L. R. A. 190, 1 C. C. A. 636. 6 U. S. App. 75. 50 Fed. Rep. 728, Distinguishing Chicago, M. & St. P. R. Co. v. Ross (1884) 112 U. S. 377, 28 L. ed. 787, 5 Sup. Ct. Rep. 184, on the ground that the brakeman was not subject to the authority of the conductor or engineer of the other train; Kerlin v. Chicago, P. & St. L. R. Co. (1892) 50 Fed. Rep. 185, Limiting Chicago, M. & St. P. R. Co. v. Ross (1884) 112 U. S. 377, 28 L. ed. 787, 5 Sup. Ct. Rep. 184; Northern P. R. Co. v. Poirier (1895) 15 C. C. A. 52, 29 U. S. tained by falling overboard in consequence of which another employee fell in, did not of the failure of a porter and a carpenter of render the master liable. The determinathe ship to properly readjust the movable tion reached is that the cause of the death rail closing the gangway after it had been of the intestate of the plaintiff was the negremoved for the discharge of passengers, it ligent act of his coservants in the performwas held that the negligence was that of a ance of their duty towards him in the same fellow servant, for which the employer was common employment, and that there should not responsible. In Filbert v. Delaware & have been a nonsuit or direction of a verdict H. Canal Co. 121 N. Y. 207, 23 N. E. 1104, at the trial. it was held that the failure of employees to cover a pit which they had used the day before, and left open over night, in consequence Judgment is therefore reversed, and venire de novo awarded. ants employed in the repair or construction of the permanent way. From one point of view these servants are in a common employment because they are "engaged in the same common object, the safe conveyance of passengers to the end of their jourWaller v. South Eastern R. Co. (1863) ney." App. 583, 67 Fed. Rep. 881, Following Randall | d. Servants handling ordinary trains and servv. Baltimore & O. R. Co. (1883) 109 U. S. 478, 27 L. ed. 1003, 3 Sup. Ct. Rep. 322; St. Louis, I. M. & S. R. Co. v. Needham (1894) 25 L. R. A. 833, 11 C. C. A. 56, 27 U. S. App. 227, 63 Fed. Rep. 107 (switch negligently left open in breach of rules); Becker v. Baltimore & O. R. Co. (1893) 57 Fed. Rep. 188; Pleasants v. Raleigh & A. Air Line R. Co. (1897) 121 N. C. 492, 28 S. E. 267; Baltimore Trust & Guaranty Co. v. Atlanta Traction Co. (1895) 69 Fed. Rep. 358 (a case of the crews of two different street cars); Michigan C. R. Co. v. Dolan (1875) 32 Mich. 510; Pittsburgh, Ft. W. & C. R. Co. v. Ruby (1871) 38 Ind. 294 (conceded case actually turned on negligence vel non in retaining the conductor); Chicago, St. L. & N. O. R. Co. v. Doyle (1883) 60 Miss. 977. In a few cases the doctrine of Chicago, M. & St. P. R. Co. v. Ross (1884) 112 U. S. 377, 28 L. ed. 787, 5 Sup. Ct. Rep. 184, has been supposed to involve the corollary that the conductor is a representative of the company, not only as to the men on his own train, but as to those on other trains also. Northern P. R. Co. v. O'Brien (1889; Wash. Terr.) 21 Pac. 32; Au v. New York, L. E. & W. R. Co. (1886) 29 Fed. Rep. 72 (omission to see that brakemen were at their posts and brakes set on a steep grade; brakeman on another train injured by running away of train); Ragsdale v. Northern P. R. Co. (1889) 42 Fed. Rep. 383. But this construction is discredited by the above-cited decisions of the court of appeals. The theory that the conductor of one train should be regarded as belonging to a different department from the men on another train (see III. infra), has been explicitly repudiated in Virginia and Mississippi. Norfolk & W. R. Co. v. Donnelly (1892) 88 Va. 853, 14 S. E. 692 (right-of-way order, misconstrued, caused collision); McMaster v. Illinois C. R. Co. (1887) 65 Miss. 264, 4 So. 59; Enright v. Toledo, A. A. & N. M. R. Co. (1892) 93 Mich. 409, 53 N. W. 536; Van Avery v. Union P. R. Co. (1888) 35 Fed. Rep. 40 (two engineers); Chicago, St. L. & N. O. R. Co v. Doyle (1883) 60 Miss. 977. A fireman on a passenger train, and an engineer in charge of an engine not connected with such train. Howard v. Denver & R. G. R. Co. (1886) 26 Fed. Rep. 837, Approved in Wolcott v. Studebaker (1887) 34 Fed. Rep. 12. A brakeman on one train and a fireman on another. Randall V. Baltimore & O. R. Co. (1883) 109 U. S. 478, 27 L. ed. 1003, 3 Sup. Ct. Rep. 322 (engineer ran engine too fast, and gave no notice of its approach at a switch). See also Grand Trunk R. Co. v. Cummings (1882) 106 U. S. 700, 27 L. ed. 266, 1 Sup. Ct. Rep. 493, where the engineer of one train was assumed to be a coservant of all the employees on another; and Jenkins v. Richmond & D. R. Co. (1893) 39 S. C. 507, 18 S. E. 182, where the departmental rule was expressly rejected as not applicable to servants on different trains. 2 Hurlst. & C. 101, 32 L. J. Exch. N. S. 205, 9 Jur. N. S. 501, 8 L. T. N. S. 325, 11 Week. Rep. 731, per Pollock, C. B., during the argument of counsel. Or, as other cases put it, "the common purpose of the service is the moving of trains." Elliot v. Chicago, M. & St. P. R. Co. (1889) 5 Dak. 523, 3 L. R. A. 363, 41 N. W. 750. Or they are "engaged in the common enterprise of maintaining and operating the road." Boldt v. New York C. R. Co. (1858) 18 N. Y. 432. In Coon v. Syracuse & U. R. Co. (1849) 6 Barb. 231, the supreme court pointed out that the great object and business of the company were to "transport passengers and freight," and proceeded thus: "To facilitate this business, and to render the road capable of performing the business required of it by the public as well as by the interests of the stockholders, a great sarily employed. many different agents and workmen are necesTo these are assigned various duties; to some are assigned the duty of examining the track of the road; to others the keeping the road in repair; some are engineers and some brakemen; some are conductors and some switchmen; but they are all necessary and indispensable for carrying out the primary object, to wit, the safe and speedy transportation of passengers and freight over the road. They are all engaged in one general business and common enterprise." This decision was affirmed in (1851) 5 N. Y. 492. From another point of view the same result follows from the fact that the conduct of one necessarily affects the safety of the other. Elliot v. Chicago, M. & St. P. R. Co. (1889) 5 Dak. 523, 3 L. R. A. 363, 41 N. W. 750); that is to say, though they are in different departments they are "by the very nature of their employment brought into frequent contact, and the risk of negligence by the one must, therefore, be considered to have been in the contemplation of the other when service under the common master was accepted." Norfolk & W. R. Co. v. Nuckols (1895) 91 Va. 195, 21 S. E. 342. See also Northern P. R. Co. v. Hambly (1894) 154 U. S. 349, 38 L. ed. 1009, 14 Sup. Ct. Rep. 983; Boldt v. New York C. R. Co. (1858) 18 N. Y. 432. The following employees are therefore held to be coservants: Track-repairers and trainmen generally. Gormley v. Ohio & M. R. Co. (1880) 72 Ind. 31; Gillshannon v. Stony Brook R. Corp. (1852) 10 Cush. 228: Whaalan v. Mad River & L. E. R. Co. (1858) 8 Ohio St. 249; Manville v. Cleveland & T. R. Co. (1860) 11 Ohio St. 417, 425, |