CLEVELAND, C., C. & ST. L. RY. CO. v. BROWN, 73 F. 970

WOODS, Circuit Judge, after making tlie foregoing statement, delivered the opinion of the court.

The questions certified to the supreme court — though perhaps not identical, unless it be the first, with questions presented by (he record — were deemed t;o be closely pertinent; and the aim was to obtain, in answer to the fourth, a declaration of principle, and in answer to the others, if the principle suggested were affirmed, guidance for its application. 'The particulars in which the questions were found to he inexplicit: not: having been pointed out, we are unable to put them in a form better calculated to elicit tho information which we sought.

Indeed, the necessity for so doing has been removed in large measure by later decisions. We refer especially to Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269; Railroad Co. v. Peterson, 16 Sup. Ct. 843; and Railroad Co. v. Charless, Id. 848.

These cases, together with the opinion in the Baugh Oa.se, have put it beyond question that the circuit court erred it! this case when, in substance, it instructed the jury, and refused a contrary charge asked by the plaintiff in error, that if Scullen was a foreman, with authority to employ and discharge men, and to oversee and direct them in the performance of the duties assigned them, and, with that: authority, had employed Brown-and others, and laid assigned them to the work of throwing down the company’s transfer shed, he was not, iu respect to that work', a fellow servant, but stood to the men in the relation of a vice principal or representative of the company. ¡Jcullen was not: in charge of a department, but:, on the contrary, was subordinate to another, who had the general charge of the construction and repair of bridges and other structures, on a division of the road; and the company is therefore not responsible for injuries suffered by any of Ms subordinates by reason of Ms misconduct, unless it was a neglect of some duty which the master owed, as master, to the one injured.

For the neglects of a foreman, as such, the master is not responsible. It wa s laid down in the Baugh Case, and reaffirmed in Railroad Co. v.

Keegan, supra, “that the rightful test to determine whether the negligence complained of was an ordinary risk of the employment, was whether the negligent act constituted á breach of positive duty owing by the master, such as that of taking fair and reasonable precautions to surround Ms employés with fit and careful co-workers, and the furnishing to such employés of a reasonably safe place to work, and reasonably safe tools or machinery with which to do the work, — thus making the question of liability of an employer for an injury to his employé turn rather on the character of the alleged negligent act, than on the relations of the employés to each other, so that, if the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but, if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is liable therefor.” By this test,-once it is conceded — -as, under these decisions, it must be — that Scullen and Brown were fellow servants, it is clear that for the acts of negligence alleged in the first and third counts of the declaration the company was not responsible.

Those acts were all in the line of a foreman’s duty, the risk of which the employé assumed -when he entered upon the service. The second count is subject to the same criticism, except in so far as it alleges a failure and refusal of the company to furnish the necessary tools, implements, or appliances for the safe tearing down of the shed. What tools or appliances were needed, which were not furnished, it is not averred; but it was<for the defendant to move that the declaration be made more specific in that respect, if desired, and, that not having been done, proof was admissible under the general averment.

If the necessary tools were furnished by the company, but they were not employed in the work, or were unskillfully employed, through the-negligence or want of skill of the foreman, the company, for the reason already explained, is not answerable for the result; but if the tools and appliances used were insufficient, and were employed because better were not available, and that was the cause of the injury, the company is liable.

There is a duty on the part of a master to provide his servants a safe place in which to work, but manifestly that principle is not applicable to a case like this, where the place becomes dangerous in the progress of the work, either necessarily, or from the manner in which the work is done. The judgment below is reversed, and the cause remanded, with instruction to grant a new trial, and to permit, if desired, an amendment of the declaration.