William Ell, Respondent, v. Northern Pacific Railroad Company, Appellant.
1. Negligence—Fellow-Servant.
The negligence of the foreman of a gang in failing to block a pile which was shoved against plaintiff, injuring him, because it was not blocked, is the negligence of a fellow-servant, although the foreman had authority to employ and discharge plaintiff, and the plaintiff was under his superintendence and control in doing the work in the performance of which he was injured.
2. Who Are Fellow-Servants.
Whether a negligent servant is the fellow-servant of an employe who is injured by the carelessness of the former depends, not upon the relative ranks of the two servants, but upon the character of the work, the negligence with respect to which resulted in the injury.
3. When Negligence of Servant is the Negligence of the Employer.
The negligent performance or omission to perform a duty which the master owes to his employes is at common law the negligence of the master, whatever the grade of the servant who is in that respect careless. The negligence of a servant engaged in the same general business with the injured servant is the negligence of a fellow-servant, whatever position the former occupies with respect to the latter, as to all acts which pertain to the duties of a mere servant, as contradistinguished from the duties of the master to his employes.
4. Negligence; Measure of Damages.
In actions for damages for negligence, interest may be awarded or withheld in the discretion of the jury.
(Opinion Filed January 15, 1891.)
APPEAL from district court, Stutsman county; Roderick Rose, Judge.
John C. Bullitt, Jr. and John 8S. Watson, for appellant: The judgment can be sustained only by the adoption of the superior servant limitation of the fellow-servant rule. The idea that the master is responsible to inferior servants for acts of superiors has produced confusion in the decisions. In general it is favored by the southern and western courts, and by the U. S. supreme court; but is repudiated by courts whose number and authority (saving the U. S. supreme court) outweighs that of those favor-
