charge of such trains, has been either abrogated or annulled by the instructions which gave express authority to that effect to the freight conductor. If he had acted under that authority, the liability of the company would not have been in any respect diminished by its conditioning its grant of authority upon its being properly exercised. So, when the company committed to the conductor and his crew of brakemen the custody and care of its freight train, and thereby gave implied power to exclude and expel therefrom any unauthorized persons intruding therein in contravention of the design and purpose of the company in running such a train, I think that the impli cation is not rebutted by proof that it had selected one of its servants, and given him express authority in respect to such trespassers. The express grant is not inconsistent with the implied authority. The illustration heretofore used is again pertinent. Suppose Selah had removed Welsh from the train when it was not in motion, and without excessive force; can it be doubted that he could have justified his act, in defense of an action for assault and battery, upon his implied authority to protect his master's property, and that his justification would not be negatived by proof that the company had given express authority to the conductor in respect to trespassers? The result is that the refusal of the request to charge in the respect complained of was not erroneous. There was no exception to the

charge.

There are other assignments of error, which have not been argued. As they are directed to rulings of the trial judge in matters committed to his discretion, and which are not reviewable on error, they need not be further discussed. For the reasons given, I shall vote to affirm the judgment.

DEPUE, GUMMERE, LIPPINCOTT, ADAMS, HENDRICKSON and NIXON, JJ., dissented.

CURLEY v. HOFF.

Court of Errors and Appeals, New Jersey, March, 1899.

MASTER AND SERVANT

- SAFE PLACE TO WORK — FELLOW SERVANTS. 1. The rule of duty for a master to use reasonable care that the place of working of his servants shall be kept safe is not fully applicable in a case where the work itself involves the place of working. In such a case the duty extends only to the use of reasonable care to discover and give notice of latent danger. The case of Van Steenburgh v. Thornton, 58 N. J. Law, 160, explained and distinguished.

2. The rule that a master is not liable for injury resulting to a servant from the negligence of fellow servants in the same common employment, if such servants are selected with reasonable care, is applicable to the construction, under one foreman, of a road with a brick sewer therein. In such a case the bricklayers who build the sewer are in a common employment with the laborers who excavate and sheathe the trench and with the foreman who directs the whole work.

(Syllabus by the Court.)

ERROR to Supreme Court. There was a judgment for plaintiff and defendant brings error.

CHARLES L. CORBIN, for plaintiff in error.

WARREN DIXON, for defendant in error.

COLLINS, J. This writ of error brings before us exceptions to rulings made at the trial of an action brought by a servant against his master to recover damages for personal injuries sustained in the service, in which action the plaintiff prevailed. The defendant was engaged in constructing, for the county of Hudson, a public road, with a brick sewer therein. At the time the plaintiff was hurt, the different branches of the work were in simultaneous progress under one foreman. As the trench for the sewer was excavated, it was sheathed with planks, held in place by rangers braced laterally across it. As it deepened, these planks were driven down further. Some rock was encountered, and this had to be removed by blasting. The plaintiff was one of two bricklayers engaged in building the sewer, following up the workmen engaged in making the trench. Shortly after a blast of rock, made at a point about 100 feet in advance of the bricklayers, the lower part of the bank on one side of the trench caved in upon and injured the plaintiff as he stooped to his work. At this place the sheathing had not been driven down to the bottom of the trench by some two or three feet, and there was more or less percolation of water, so that the first course of the sewer was being laid in mud. The fall of earth seems to have been due to the action of the water, aided, perhaps, by the jar of the blast. The learned judge who tried the cause refused to nonsuit the plaintiff. He instructed the jury that it is the duty of a master to exercise reasonable care to provide for his servant a safe place in which to work, and to keep it safe, and that he cannot delegate that duty so as to relieve himself of liability. This rule, he said, was subject to the qualification that the servant must assume the risk of obvious or incidental dangers and of his own negligence. In applying the rule to the case in hand, the judge instructed the jury that a delegation of such duty to the foreman would render his negligence imputable to the defendant; and on the assumption that it was the duty of the defendant to afford some protection against the caving

in of the trench, and that he had undertaken to perform that duty by means of sheathing, the judge further instructed the jury that it was the duty of the defendant to exercise "reasonable care in the construction of that sheathing so as to make that place, so far as reasonable care could make it, a safe place for the workman to engage in his labor." Exceptions, duly sealed, present these rulings for review.

The general rule stated to the jury is well established.

assertions of it in this court are to be found in the cases of Comben v. Stone Co., 59 N. J. Law, 226, 1 Am. Neg. Rep. 117, 36 Atl. Rep. 473, and Stone Co. v. Mooney, 61 N. J. Law, 253, 4 Am. Neg. Rep. 195, 39 Atl. Rep. 764. Its application, however, often presents difficulty. Where the work and place of working are coincident, it seems to have little appropriateness. It is hard to see how, for example, where the work is excavation, the master is under any duty to guard his servants against the very danger that arises from their work. The opinion read for this court in the case of Van Steenburgh v. Thornton, 58 N. J. Law, 160, 33 Atl. Rep. 380, seems to assert such a duty, but such is not the force of the decision as was pointed out in the Supreme Court in the later case of Regan v. Palo, 5 Am. Neg. Rep. 63, 41 Atl. Rep. 364, where it was held that a servant takes the risk of the caving in of the walls of a trench he is digging unless there be a latent danger, which the master, with reasonable care, might have discovered. The facts recited in the report of the Van Steenburgh Case show that there was such a latent danger, knowledge of which was chargeable to the master, and therefore this court refused to disturb a verdict against him. The learned judge who delivered the opinion considered the case as one of duty to provide a safe place in which to work, but it is plain that the real duty neglected was the discovery of a latent danger. Had the plaintiff, in that case, been told of the buried water pipe, the presence of which made it unsafe to dig near it, he would have proceeded with the work at his own risk. The case was parallel to one decided at the same term, where the principle was declared that a master is bound" to use reasonable care to protect his servant from unnecessary risk, and is liable for damages occasioned to him through some latent danger of which he should have warned him." Telegraph Co. v. McMullen, 58 N. J. Law, 155, 33 Atl. Rep. 384. The declaration in the Van Steenburgh opinion that the master was bound by the negligence of the boss foreman was really without pertinence. The record then before the court shows that there was evidence sufficient to warrant the jury in finding that the master himself knew, or ought to have known, of the latent danger. His

contract with the township bound him to protect water pipes, and a public map on file disclosed the existence of the water pipe that constituted the danger. This point was made in the brief filed in support of the judgment. The only exceptions on which error was assigned were to the refusal to nonsuit or direct a verdict for the defendant. Hence nothing was really decided beyond what those exceptions necessarily involved. Coming to a case where sheathing of a sewer trench is necessary or desirable the rule of the master's duty to provide a safe place for working seems as little appropriate. The sheathing is a part of the work, and, where the earth is soft or friable, a necessary part, for without it there can be no trench. There should be no difference between the rule governing the construction of a sewer and that governing the construction of any other work. The trench, sheathed or unsheathed, is a necessary part of such construction.

Another general rule, as well established as that under discussion, is that a master who has used due care in the selection and employment of his servants is not responsible for an injury done to one of them by the carelessness of another in the course of their common employment. The courts of this state have inflexibly adhered to this rule since its first formal assertion in Harrison v. Railroad Co., 31 N. J. Law, 293. It is as applicable to a case where the work involves the place of working as to any other. It has been properly applied by the Supreme Court in Gilmore v. Nail Co., 55 N. J. Law, 39, 25 Atl. Rep. 707, to a case of alleged negligent failure by a foreman to remove from the walls of a mine, in which the plaintiff was drilling holes for blasting, fragments of ore that had been loosened by previous blasts, one of which fragments fell upon and injured the miner; and in Maher v. McGrath, 58 N. J. Law, 469, 33 Atl. Rep. 945, to alleged negligent construction, by masons, of a scaffold, for their work, which fell with and injured a laborer delivering upon it brick for the wall being built by the masons. The court itself has unanimously applied it to the alleged negligent construction by ship carpenters of a scaffold necessary for the building of a vessel, where the scaffold fell and injured another carpenter standing upon it at work. Olsen v. Nixon (N. J. Err. & App.) 4 Am. Neg. Rep. 515, 40 Atl. Rep. 694. The rule must be equally applicable to negligence in sheathing the sides of a sewer trench, there being, as in this case, no allegation or proof of carelessness in the selection or employment of servants, or that the foreman or workman were in fact incompetent.

The decision in Steamship Co. v. Ingebregsten, 57 N. J. Law, 400, 31 Atl. Rep. 619, does not conflict with the views above expressed.

That decision related to mechanical appliances, not a place of working. But the rule of the master's duty is the same in both cases, viz., a reasonable care for the servant's safety. While delegation to others will not relieve the master from the consequences of negligence in the performance of what the law makes the master's duty, it will not charge upon the master the consequences of the negli gence of his servants towards each other. The risk of that negligence, for reasons of public policy, the law places on the servants. The test always must be whether the negligent act or omission was in discharge of the master's or the servant's duty. Smith v. Iron Co., 42 N. J. Law, 467. In the Ingebregsten Case it was acknowledged that inspection incidental to use of a tool or appliance was the servant's, not the master's, duty. So in the case in hand the keeping safe a place of working incidental to the work itself was the servant's, not the master's, duty. This distinction is well illustrated by a decision of the New York Court of Appeals. A laborer was employed in breaking out and loading lumps of clay. The clay bank overhung him, but was safe as long as it was undisturbed. In the progress of the work the foreman weakened the cohesion of the bank above the laborer, and it fell upon and injured him. held that the master was not liable. Loughlin v. State, 105 N. Y. 159, 11 N. E. Rep. 371. In a leading case in England it was decided that, while the owners of a mine were bound to use reasonable care to provide a proper system of ventilation, so as to prevent accumulation of fire damp, they were not responsible for the negligence of their underground manager in obstructing the free working of the system by a scaffold set up to reach a coal seam. Wilson v. Merry, L. R. 1 H. L. Sc. 326. In this case Lord Chelmsford's opinion is very convincing, both as to the distinction drawn and as to the manager's being a fellow servant with the miners (1). A well-considered opinion of the same purport is that of Gray, Ch. J., in Holden

1. In Wilson v. Merry, L. R. 1 H. L. Sc. 326 (House of Lords, Scotch Appeals, May, 1868), an action for damages for the death of plaintiff's son who was killed while engaged as a miner in defendant's employment, the doctrine of fellow servant and the master's immunity, and the duties of the master in respect to furnishing proper materials for the servant's work, are fully discussed.

As to fellow-servant: the Lord Chancellor (Lord Cairns), said: "I do not think the liability or nonliability, of

Lord

the master to his workmen can depend upon the question whether the author of the accident is not, or is, in any technical sense, the fellow-workman, or collaborateur, of the sufferer." Cranworth said: "Workmen do not cease to be fellow-workmen because they are not all equal in point of station or authority." Lord Chelmsford said: "It has certainly been held by Scotch judges of great eminence that the exoneration of a master from liability for injury arising to one fellowservant from the negligence of another