ing the doctrine: McKinley on Fellow Servants, §§ 111 to 167; Dillon in24 Am. Law Rev. p. 118; Crispin v. Babbitt, 81 N. Y¥. 516; Hanathy v. R. R. Co., 46, Md. 280; Zeigler v. Day, 123 Mass. 152; Hogan v. R. R. Co., 49 Cal. 128; Am. and Eng. R. R. Cases, vol. 17, p. 516: Fanvell v. R. R. Co., 4 Mete. 49; Herbert v. R. R. Co., 3 Dak. 38; Elliot v. R. R. Co., 41 N. W. 757, etc. The company’s duty to the plaintiff was fulfilled when it had furnished suitable appliances for the work; the negligent use of the appliances by a fellow servant of whatever grade was one of the plaintiff’s employment.
S. L. Glaspell for respondent: In adopting unqualifiedly the superior servant limitation of the fellow-servant rule this court would follow the Supreme Court of the United States and every state supreme court which has passed upon the question as an original proposition since 1884, when C. M. & St. P. R. Co. vs. Ross, 112 U. 8. 377, was decided and the superior servant limitation given a full and unqualified adoption by the highest court in this country. The rule as laid down by Mr. Justice Field in that decision, is as follows: “There is, in our judgment, a clear distinction to be made in their relation to their common principal, between servants of a corporation, exercising no supervision over others engaged with them in the same employment, and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is that of direction and superintendance.”
The rule is recognized in Elliott vs. Railroad Co., 5 Dak. 223, s. c. 41 N. W. 758; and see Railroad Co. v. Fort, 17 Wall. 553, s. c. 21 L. Coop. Ed. 739.
By the clear weight of authority it is now held, that the general rule, that the master is exempt from liability to one servant for an injury caused by the negligence of a fellow servant, does not apply where the injured servant is inferior in rank to the one by whose negligence he is injured, and is under the direction and control of such other and is bound to obey his orders: Beach on Contrib. Neg. § 110; Deering on Neg. § 204; Thompson on Neg. vol. 2, p. 1028; Sherman & Redfield on Neg. (4th Ed.) § 226; Wharton on Neg. § 229; Gravelle v. M. & St. L.
