vision, exercises an important function of his master, and has as fall control over them as the master would have were he present acting in person. The subordinate, in such case, is as much the servant of the agent who employs and controls him as he would be of the master, were the latter discharging the functions of the agent. It seems, therefore, that there is as much reason for holding that a servant assumes the risk of the master’s negligence as for holding that he assumes the risk of the negligence of such a superior employe of his master. He may be presumed to exercise an influence over a co-employe who did not employ and has no power to discharge him, calculated to promote care and vigilance on the part of the latter, which he cannot or dare not exercise towards one who has the right to terminate his employment.” And to the same effect see Patton v. Railroad, 31 Amer. & Eng. R. Cases 303.
The learned editor of the American and English Railroad Cases says, in his note to Chicago, Milwaukee & St. P. R. Co. v. Ross, 17 Amer. & Eng. R. Cases 514: “It is, we believe, true that in every case where the power to employ and discharge exists, the relation established has been held to be not that of a fellow servant, but of vice principal.” See list of cases cited in same note, and notes in Vol. 17, Amer. & Eng. R. Cases p. 560 and 563; Railroad Co. v. Sullivan, 41 A. & E. R. Cases 463.
This superior servant limitation must be correct in some cases, or a corporation would escape liability altogether. Many courts have therefore qualified the doctrine to the extent of holding that the master is only liable when the superior servant violates some duty which the master owes to the inferior servant. It is the duty of the master to furnish a reasonably safe place to work, and safe and proper tools. It‘s the duty of the master to maintain such, and his duty of caring for the safety of his men is continuing, and never ceases while they are in his employ.
Counsel for appellant first seeks to escape the rule of the master’s liability for the negligence of a superior servant, resulting in injury to an inferior acting in obedience to the order of the superior, and next he contends that a specific act of negligence charged, viz., the omission of Withnell to block the out-
