Page:North Dakota Reports (vol. 1).pdf/369

iness, or for other reasons, he confides their discharge to an employe. His personal negligence in this respect would create liability. He cannot gain exemption from negligence of another in this regard by delegating these personal duties to another. This doctrine is sound, and it in no manner is a limitation of the fellow-servant rule. On the other hand, the other doctrine is a limitation—a very important limitation—of that tule. It finds no warrant in the cases which first enunciated that rule. It rests on no subsequent legislation; and we are firm in the conviction that the mere superiority in the rank of the negligent servant—his right to control the servant injured, and to employ and to discharge him—calls for no modification of the fellow-servant rule. The bed-rock of that doctrine is that every employe assumes the risk of his co-employe’s negligence as one of the ordinary risks of his work. Is a superintendent or foreman so much more careless in the performance of work pertaining to a servant’s duties than a subordinate employe that the risk of the former’s negligence is an extraordinary one? If work belonging to the duties of a servant be done carelessly, what conceivable difference is there whether the negligence proceed from a commander or a subaltern, so long as the master himself is not personally at fault. The superior-servant is in fact a fellow-servant. The two are engaged in the same general work for the master; one using his muscle chiefly, and the other perhaps working mainly with his brain. The only ground on which the superior’s relation as fellow-servant is ignored is the constructive presence in his person of the master, because the master in the distribution of labor has appointed him to work in the line of superintendence and control. But this control, this superior rank, cannot lift him above the grade of a fellow-servant into the position of a vice-principal so long as he is engaged in the work of a servant only. If a servant of inferior rank should perform the same work, he would not be regarded as the master; and we are at a loss to understand how the higher rank of the servant can change the nature of the act, or increase the risk of the inferior servant, so as to render inapplicable the fellow-servant rule. The superior-servant is no more the representative of the mas-