objection of the defendant. My brethren, while agreeing that this proof was improperly received, think it could not injure the defendant, and in this I cannot agree with them. It cannot be known from the charge of the court, and the verdict rendered, but that the recovery was had upon this proof; and, certainly, if that be so, it cannot be said the proof could do no injury. But even if it be true that the recovery was had upon the theory that the defendant was liable for the direct negligence of Moore, then the admission of this testimony, admitted to be incompetent, would be error. Its natural and inevitable effect was to prejudice the jury in passing upon any question of fact submitted to them,-to induce them to act from passion rather than from judgment. 3. This brings me to a consideration of the question whether Moore and the plaintiff were fellow-servants or not. Upon this subject I think that Moore and the plaintiff were unquestionably fellow-servants, and that being so, the law is well settled that the master is not liable to those in his employ for injuries directly and naturally charged to the negligence of fellow-servants, nor, under the authorities, does it make any difference that such fellow-servants are in different departments of employment, provided they are engaged in the same general business. Davis v. Detroit & M. R. Co., 20 Mich. 105, 4 Am. Rep. 364; Farwell v. Boston & W. R. Corp., 4 Metc. 49, 38 Am. Dec. 339; Gilman v. Eastern R. Corp., 10 Allen, 233, 87 Am. Dec. 635; Bold v. New York Cent. R. Co., 18 N. Y. 432; Weger v. Pennsylvania R. Co., 55 Pa. St. 460; Pittsburg, etc., Ry. Co. v. Devinney, 17 Ohio St. 209; Moseley v. Chamberlain, 18 Wis. 700; Randall v. Baltimore & O. R. Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322.

In this latter case it is held that a brakeman, working switch for his train on one track in a railroad yard, is a fellow-servant with an engine-man on another train of the same corporation, upon an adjacent track, and cannot maintain an action against the corporation for an injury caused by the negligence of the engine-man in driving his engine. too fast, and in not giving due notice of its approach, without proving negligence of the corporation in employing an unfit engine-man. The pleader in that case followed the rule

which I have already stated, and which I think should prevail in all similar cases. The declaration there alleged that the servant through whose alleged negligence the injury took place was unskillful, negligent, and unfit to perform the business and employment he was engaged in by the plaintiff to perform, and that his unskillfullness and negligence and unfitness were known to the defendant. The doctrine as to liability for negligence of a fellow-servant in that case is stated as follows: "The general rule of law is now firmly established that one who enters the service of another takes upon himself the ordinary risks of his fellow-servants, in the course of the employment;" and while declining in that case to lay down the precise or the general definition as to who are fellow-servants, the court says: "Persons standing in such a relation to one another as did this plaintiff and the engine-man of the other train are fellow-servants, according to the very great preponderance of judicial authority in this country, as well as to the uniform course of decisions in the house of lords, and in the English and Irish courts, as is clearly shown by the cases cited. They are employed and paid by the same master. The duties of the two bring them to work at the same place, and at the same time; so that the negligence of the one in doing his work may injure the other in doing his work. Their separated services have an immediate common object, -the moving of trains. Neither works under the control or orders of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence against the corporation,-their common master."

Under the rule here laid down, Moore and the plaintiff were unquestionably fellow-servants. They were employed and paid by the same master, and neither worked under the control or orders of the other; but both were under the control and orders of Fitch, the foreman of the work. Moore had no authority whatever over the plaintiff. Fitch directed when the train should start, where it should go, and directed the plaintiff and the other workmen when and where they should go upon the train to be conveyed to their dinner. Both Moore

and the plaintiff were therefore directly and absolutely under the control and orders of Fitch. They were therefore clearly, in my judgment, fellow-servants. It would serve no useful purpose to undertake to collect and review the many and conflicting authorities upon this subject, of who are, and who are not, fellow-servants. The true rule, sanctioned and sustained by the highest authority, as I understand it, is that the fellow-servant for whose negligence the company is not liable is one who labors in the same common employment, and who has not authority over the one injured, and who, no more than the injured party, is charged with the discretionary exercise of powers and duties resting upon and belonging to the company. The person causing the injury by his negligence must occupy some superior or commanding position to that of the person injured. Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205; Moon v. Railroad Co., 8 Va. Law J. 540; Nashville & D. R. Co. v. Jones, 9 Heisk, 27; Farwell v. Boston & W. R. Corp., 4 Metc. 49, 38 Am. Dec. 339; Randoll v. Baltimore & O. R. Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322

In Bartonshill Coal Co. v. Reid, 3 McQueen, 266, and Bartomhill Coal Co. v. McGuire, 3 McQueen, 300, the parties injured were miners, employed to work in a coal-pit, and the party whose negligence caused the injury was employed to attend the engine by which they were let down into the mine. The same engine, however, raised the coal from the bottom of the mine to the surface. In that case it was held that the engineer and the workmen were engaged in a common work, the court saying: "The miners could not perform their part unless they were lowered to their work, nor could the end of their common labor be attained unless the coal which they got was raised to the pit's mouth, and, of course, at the close of the day's labor, the workmen must be lifted out of the mine. Every person who engaged in such an employment must have been perfectly aware that all this was incident to it, and that the service was necessarily accompanied with the danger that the person entrusted with the machinery might be occasionally negligent, and fail in his duty."

I do not think that the case of Chicago, etc., Ry. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, decided by the

supreme court of the United States, and relied upon by the plaintiff, establishes any other or different doctrine from that that I have stated. That case, like all the others, on examination, would be found to put the right of recovery upon the ground that the person through whose negligence the injury happened, was in a place of authority over the person injured, and occupied such a position as, for the time being, to stand in the place of and represent the company. Of course, in such a case as that, there can be no question about the liability of the company for the injuries so caused; but it is not true to say that Moore stood in any such position or attitude in the present case. In the Ross Case, just cited, Mr. Justice Field, in pronouncing the very able opinion in that case, says: "There is, in our judgment, a clear distinction to be made, in their relation to a common principle, 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 entirely that of direction and superintendence. A conductor, having the entire control and management of a railway train, occupies a very different position from the brakeman, the porters, and other subordinate employes. He is, in fact, and should be treated, as the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. We know from the manner in which railways are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements; and all persons employed on it are subject to his order. In no proper sense of the term is he a fellow-servant with the firemen, the brakemen, the porters, and the engineer. The latter are fellowservants in the running of the train under his direction, who, as to them and the train, stands in the place of and represents the corporation." Now, I concur in all that, and give it my full sanction, but I cannot see how the case can

*

aid the plaintiff at all here. The reasoning there used and employed, as I look at it, is directly opposed to the position of plaintiff in this case. Upon the trial there was no pretense, and could be none, that the engineer, Moore, stood in the place of, or in any manner represented, the company. As I have already stated, he was simply, like the plaintiff, acting under the orders and control of the foreman of the work, who directed when and how the train should be moved. I think I have now said enough to indicate my views upon the features of the case stated, to show why I cannot concur in the opinion filed. Of course, the rule that I have stated here does not exempt the defendant from liability from negligence in employing an unfit servant, or negligently retaining such servant in its employment. Such a case, if properly alleged and proved, may justify a recovery, but under the declaration in the present case no such recovery could be had. As I have shown, the defendant was entitled to have such a case properly alleged. It is true, an amendment may remedy this hereafter; but that does not help the plaintiff now, as the case stands. The objection made to such proof affected the substantial rights of the defendant on this trial, and it is entitled to the benefits thereof. For the reasons stated I think the verdict and judgment should be reversed.

[Civil No. 167. Filed August 2, 1886.]

[S. C. il Pac. 397.]

ELIJAH CLIFFORD et al., Plaintiffs and Respondents, v. L. LARRIEU, Defendant and Appellant.

1. IRRIGATION-ACTION FOR WRONGFUL DIVERSION-PARTIES-WATER USER THOUGH NOT DITCH-OWNER MAY MAINTAIN ACTION FOR WRONGFUL DIVERSION-DITCH-OWNER NOT NECESSARY PARTY PLAINTIFF. The owners of land irrigated by means of a ditch owned by another person, or a corporation, may have an action against one who wrongfully diverts water from the ditch.

2 SAME-DITCH-OWNER HAS RIGHT TO TOLL-WATER-USER TO WATER UPON PAYMENT OF TOLL.-Though the owners of the ditch be en