ing servant, by which another employé is injured; or, in other words, 216 whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master."

This principle is so exhaustively and carefully discussed by my Brother Hooker in Beesley v. Wheeler, 103 Mich. 196, that further discussion here is unnecessary. The authorities are there cited and commented on. I concur in his reasoning and the conclusions reached.

One of the principal cases relied upon by the plaintiff is Harrison v. Detroit etc. R. R. Co., 79 Mich. 409; 19 Am. St. Rep. 180. In that case, my Brother Long, speaking for the court, expressly recognized this rule in the following language: "It is not to be determined solely from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant. If it is an act that the law imposes the duty upon the part of the master to perform, then the offending employé is not a fellowservant, but a superior or agent, for whose acts the master is held liable. Again, if the master has delegated to a servant or employé the care and management of the entire business, or a distinct department of it, the situation being such that the superior servant is charged with the performance of duties towards the inferior servant which the law imposes upon the master, then such superior servant stands in the place of the master, and the rule of respondeat superior applies."

To hold Mehalski the alter ego would result, in my judgment, in the virtual abrogation of the rule. It would establish the doctrine that where a farmer employs a competent ditcher to construct a drain upon his farm, or a foreman to harvest his crops, or a carpenter to build him a barn or other building, he is responsible for their negligent acts, notwithstanding that he has employed competent men and furnished proper tools, mate rial, and machinery; and that every foreman in a manufacturing plant, and every boss of a railroad gang, is a vice-principal. would result in overruling the following cases: 217 Quincy Min. Co. v. Kitts, 42 Mich. 34; Hoar v. Merritt, 62 Mich. 386; Peterson v. Chicago etc. Ry. Co., 67 Mich. 102; 11 Am. St. Rep. 564; Adams v. Iron Cliffs Co., 78 Mich. 271; 18 Am. St. Rep. 441; and the many other cases in which this rule has been recognized and affirmed.

It

Plaintiff relies upon the following authorities to support his right of recovery: Harrison v. Detroit etc. R. R. Co., 79 Mich. 409; 19 Am. St. Rep. 180; Ryan v. Bagaley, 50 Mich. 179; 45

Am. Rep. 35; Erickson v. Milwaukee etc. Ry. Co., 83 Mich. 281; 93 Mich. 414; Shumway v. Walworth etc. Mfg. Co., 98 Mich. 411; Hunn v. Michigan Cent. R. R. Co., 78 Mich. 513.

In Harrison v. Detroit etc. R. R. Co., 79 Mich. 409, 19 Am. St. Rep. 180, which, as already shown, approves the rule as above stated, a division superintendent, who had the entire charge and control of a division of the road one hundred and fifty miles in length, was held to be the alter ego.

In Ryan v. Bagaley, 50 Mich. 179, 45 Am. Rep. 35, the defendant, the owner of the mine, lived in another state, and the entire management, control, and conduct of the mine in its operation was delegated to the mining captain. That case was tried before the writer of this opinion as the circuit judge, and the charge to the jury upon this point was as follows: "It appears from the testimony that he had the entire charge and control of the underground work, and all the work generally, of the mine, and that he employed and discharged men. Now, I charge you that Captain Whitesides, if he had this power delegated to him to manage and control the mine, negligence on his part would be the negligence of the owners or managers of the mine. So, if he directed the hoisting of this pipe, and the act alone of hoisting it was negligence, then the owners of the mine would be liable. If he did not direct how it should be done, but simply instructed Mr. Tyler to hoist the pipe, and Tyler, in his trying it, did it negligently and carelessly, that would not be the act of the defendants or Mr. Whitesides."

In Shumway v. Walworth etc. Mfg. Co., 98 Mich. 411, it was conceded by the defendant that the relations of the agent to the defendant were such that he might in law, for some purposes, 218 be regarded as the representative of the master, but it was insisted that in the particular act of starting the machine he was acting as a fellow-servant. The officer of the defendant had the entire charge of the factory, as well as the employment and discharge of men. This was evidently a case of the delegation of the entire control to the agent, who was held to be a vice-principal.

In Erickson v. Milwaukee etc. Ry. Co., 83 Mich. 281, 93 Mich. 414, stress was laid upon the fact that the foreman, Moleski, who had full charge of the gravel train, and complete control over employés working under him, with full power to hire all laborers and to discharge them, and to whom alone complaint could be made, placed the plaintiff in a position of danger, to which he was not accustomed, and for which he was not hired. Both the opinions in that case were also written by Mr. Justice

Long, and the superior servant was held to be the alter ego, under peculiar facts which showed an extensive authority conferred by the principal upon its servant. I assented to that opinion without any thought of abrogating or infringing upon the above rule so firmly established by a long line of decisions in this and other courts, and so well grounded in reason.

In Hunn v. Michigan Cent. R. R. Co., 78 Mich. 513, the train dispatcher had absolute control over the running and operating of trains from Rives Junction to Mackinaw. This case also recognizes the general rule above stated, and the difficulty inherent in determining whether the facts of any case bring it within the rule.

Whatever criticisms may be made upon the soundness of these decisions, it cannot be said that the court intended to abrogate the rule of nonliability for the negligence of a fellow-servant in every case of superior authority, nor that they apply to or govern the facts of the case at bar. This rule is well settled, and in every case the question must be, Do the facts shown by the plaintiff bring his case 219 within the rule? See Peschel v. Chicago etc. Ry. Co., 62 Wis. 349.

I am of the opinion, therefore, that the judgment should be reversed, and no new trial ordered.

Ordered accordingly.

Long and Hooker, JJ., concurred with Grant, J.

MONTGOMERY, J. The plaintiff sues to recover for negligent injury. The defendant railroad company employed the Chicago & Grand Trunk Railway Company to deliver, upon its yard at Port Huron, dirt taken from the tunnel which the Chicago & Grand Trunk road was excavating for, which dirt was to be used by defendant in leveling its own yard. The defendant had nothing to do with the train, except to indicate to the conductor of the train where to place the cars for unloading. The plaintiff was engaged with a gang of men in the work of unloading the cars as they were placed in the yard. The gang of men was under the immediate charge of one Mehalski as foreman. Mehalski's authority consisted of directing the manner of unloading, and he also had authority, when given direction by his superior, Mr. Cole, to hire and discharge men. The testimony shows that Mr. Cole was the division roadmaster of the defendant road, and he had general charge and direction of the work of filling the yard. He gave instructions to Mehalski to keep the time and number of cars, and he gave directions in relation to the work. Mehalski, before increasing his force of men, con

sulted and obtained the consent of Mr. Cole. With this consent, he had authority to keep up the number of the force by hiring men to take the place of those who left. While he did not exercise the power of discharging men at any time prior to the injury to plaintiff, he testifies that he supposed that he had the power to discharge men if they were not doing the work satisfactorily. He 220 testifies that he was under Mr. Cole's direction and charge; that Mr. Cole was there on the spot, sometimes twice a day, and sometimes only twice a week. "If he [Cole] saw the work was being done as he wanted, he would say, 'All right.' If it was something that did not satisfy him, he gave me instructions."

The injury was caused, as is claimed by the plaintiff, in the following manner: In the conduct of the business, when the men were leveling dirt in the yard, the signal for them to leave the work, and go at once to the cars and commence the work of unloading, was a call from Mehalski in the words, “Come on, boys." When the train was placed, the engine would be uncoupled and moved away. This custom was known to all the men. They came to unload whenever Mehalski called them, and not before. When he saw the train coming, he went on, and placed it where he wanted it to be unloaded, and then called the men. On the day in question, after the train which caused plaintiff's injury came into the yard, Mehalski, following the usual custom, called to the men by hallooing, "Come on, boys," and waved his hands. The men had previously been assigned in pairs to the cars on the train. Each knew his own car. The plaintiff was at work on the car furthest from the engine-the fifth car. The men had been working to the south of the train. The engine was on the north end of the train, and plaintiff's car would, therefore, be the first one reached by the laborers. Each of the men carried a pail of water, in which he dipped his shovel when the wet clay, which was very sticky, adhered to it. The train came. The conductor, under the order of Mehalski, placed it. In coming to the train from the south, plaintiff, who was assigned to the last car, went to the west side, that he might fill his pail with water from the pond. He got his water, and put it upon the car. At the time Mehalski hallooed and 221 motioned to the men, the cars had stopped. Plaintiff saw the engine uncoupled and standing at a distance. When he got to the car, it stood about thirty feet away. It was there when he went for the water. It was standing in the same place when he started to climb up. It appears that Mehalski had been notified that the train was blocking the yard engine of the Flint & Pere Mar

quette Railroad on another track, and was requested to have the mud train moved. Mehalski was then at the south end of the train, and, in answer to the request to move the train, he went up to the engine. As Mehalski went to the north end of the train to instruct the conductor to pull it ahead, the men were coming up to unload the train. The engine backed down and against the train, and the plaintiff received the injuries complained of. No warning was given by Mehalski. The plaintiff recovered, and the defendant brings the case to this court.

1. The most important question arises upon the instruction of the court upon the subject of whether the plaintiff and Mehalski were fellow-servants. Upon that question the circuit judge instructed the jury as follows: "If you find from all the evidence in the case that Jacob Mehalski had full power to hire and discharge men that were engaged in unloading this car, and that he had full control over these men in directing and managing their work in and about the entire business for which they were employed that is, in receiving the train into the yard and placing the train, the unloading of the dirt and the leveling of it down, and the general direction of the work-then I instruct you, as a matter of law, that Jacob Mehalski was not a fellow-servant of the plaintiff."

It has been found difficult to lay down general rules for determining whether one who has some direction of a branch of business of the principal is to be deemed his representative or a fellow-servant, and much confusion has arisen from a misapplication of well-understood rules; and 222 it may be said, also, that the confusion has most often arisen in determining the question with reference to the rank of the offending servant. In general we think the true test is, whether the person alleged to be a representative of the master is engaged in the performance of an act which it is the duty of the master to perform for the protection of his employés—such a duty as that of providing a safe place to work, and safe machinery and appliances; exercising due care in the selection of servants engaged in the same employment; giving proper direction as to use of dangerous machinery by inexperienced employés; and the establishment of proper rules and regulations for the conduct of the business. Where there has been neglect of any of these duties, whether the neglect is the personal neglect of the master or that of one intrusted by him with the performance of the duty, such neglect is attributable to the master; and this is generally true, without reference to the rank of the offending servant.