trine, although requested to so charge by defendant’s counsel. Whatever other ground of liability there may have been, the verdict cannot stand if the trial judge erred in this respect, for the verdict may rest entirely upon the ground work of such instruction.
The foreman, Withnell, through whose negligence it is insisted that plaintiff was injured, had control of the gang employed on the work, and was vested with authority to employ and discharge the men, who were subject to his direction and supervision. Hence it is urged that he was in his position, and therefore, in the prosecution of the work of unloading these piles, a vice-principal, and not a fellow-servant. In this connection the authorities are cited which sustain the doctrine that the station of the employe, and not the character of the act, determines the question whether. the master is responsible. In many of the cases where the superior-servant limitation was applied, such servant was in fact the fellow-servant of the employe injured. But, because of some superior position occupied by him with respect to the servant injured, the master was, by a legal fiction, regarded as personally present in the person of the superior-servant, and made responsible to one servant for the manner in which another servant performed the duties and labors pertaining to a servant’s employment. Here lies the difference between the two rules. Those cases which preserve the fellow-servant rule in its full integrity bring the facts of each case to the test, not of the rank of the negligent servant, but of the character of the negligence from which damage results. Did the master owe to his servant a duty as master? Answer the inquiry in the affirmative, and he cannot escape a careless discharge of that duty by shifting the burden to the shoulders of a servant, however inferior his position may be. The negligence of a fellow-servant has not wrought injury in such a case. It is the negligence of the master himself, because that was carelessly done which he was bound to have carefully performed. The master must use due care in supplying his servants with safe appliances, and in providing them a safe place in which to work. These are duties of the master. They are none the less his duties because from the necessities of bus-
