554; Kline v. Central Pacific R. R. Co., 37 Cal. 400; Sullivan v. India Mfg. Co., 113 Mass. 398; Hill v. Gust, 55 Ind. 49.

These cases proceed upon the theory of the enhanced duty of the employer in cases of the employment of minors, without knowledge of the risks they are to assume.

This duty performed, the minor properly instructed, and he stands upon the same plane with other servants, in reference to the risks incident to the employment, and those arising from the want of care in his fellow-servants.

In the cases cited supra, no question was made as to the authority of the superintendent to bind his principal by ordering the thing done which produced the injury. In all of them, the service to be performed was within the scope of the authority conferred.

Here the question is, Could Snape bind the defendant by the order he gave the plaintiff to seek work outside of his own peculiar department?

He was a boss in the tool-room, and as such, we may fairly assume he was authorized to control and direct the manner in which the work of that room was to be performed, and all other things relating to the orderly and proper conduct of his branch of the business. But it does not appear that he was authorized to employ hands for any purpose.

Charles Hooper was the vice-principal of the defendant in the boiler-shop, with full control and authority, and authorized to employ and discharge help. He employed plaintiff, and directed him to obey David Snape; but he employed him to work in the tool-room, and the instructions given to plaintiff to obey the boss of that room must be construed in view of the employment.

We cannot, by any reasonable intendment, hold that the authority of David Snape was enlarged or extended by this direction of Hooper. It simply relegated the plaintiff to the control of Snape, within the purview and subject to the employment which Hooper had given him.

The employment to work in the tool-shop was the subjectmatter, and the control given to Snape and the directions to plaintiff to obey him must be construed with reference to and confined to such subject-matter.

Plaintiff was directed to obey Snape, but it was as a laborer in the tool-room that he was so ordered.

We know of no rule or construction by which the order given under such circumstances, and for such a purpose, can

be held to authorize Snape to employ the plaintiff for an entirely different purpose from that contemplated by Hooper, and thereby to bind the defendant.

The roving commission given to the plaintiff by Snape, to seek employment in the boiler-shop, unless intended to direct him to the persons in charge of such shop, involved an element of carelessness, but it was not the negligence of the defendant or of its agent or vice-principal, its aliter ego authorized or held out as being authorized to speak for it.

We conclude, therefore, that as Snape was not authorized to send plaintiff to the boiler-shop in quest of employment, and that as he was not directed or employed by any one so authorized, the defendant is not responsible for the injuries which he received through the carelessness, if any, of defendant's employees.

It follows that the nonsuit was properly granted, and the judgment and order appealed from should be affirmed.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

THORNTON, J., dissented.

Rehearing denied.

INFANT EMPLOYEES. - Notwithstanding some general declarations to the contrary, which may occasionally be found in the reports, there is no question that the law recognizes some distinction between the duty which a master owes his adult servant or employee, and that which he owes to an employee who, from his youth or inexperience, or other mental immaturity or infirmity, is not able, without instruction, to understand the perils to which he is exposed in the course of his employment. This distinction, as near as we can express it, is this: that as to the latter class of servants, the master must give them full instructions with respect to the dangerous character of the machinery with or about which they are employed, and of the means necessary to be used to avoid those dangers: Jones v. Florence M. Co., 66 Wis. 268; 57 Am. Rep. 269; Parkhurst v. Johnson, 50 Mich. 70; 45 Am. Rep. 28; Dowling v. Allen, 74 Mo. 13; 41 Am. Rep. 298; Coombs v. Bedford Cordage Co., 102 Mass. 572; 3 Am. Rep. 506; Grizzle v. Frost, 3 Fost. & F. 622.

After they have received these instructions, they stand upon the same footing as other servants, and must suffer, without redress from their employers, injuries resulting either from their own negligence or that of their fellow-servants.

The only questions involved in the principal case, about which there can be any serious difference of opinion, are, whether the negligence of the person whom the plaintiff obeyed is to be regarded as the negligence of his fellcw-servant, and whether the plaintiff should have been precluded from

recovery on the ground that the person whom he obeyed had no authority to direct him to enter upon the performance of the dangerous duty.

Now, it is conceded by all the cases that the master has a duty to perform with respect to instructing minor and inexperienced servants. If this duty may be avoided by merely placing them under the charge of an elder and more experienced person, and denouncing the failure of the person under whose charge they are thus placed to instruct them as the mere negligence of a fellow-servant, then nothing has been gained by the declaration of the general principle that it is the duty of the master to instruct such servants. The true rule, we think, is this: that whenever the law imposes a duty upon the master it will not permit him to evade the performance of this duty by delegating it to another; and the act or neglect of that other is, with respect to a person injured by it, the act or negligence of the master. As was said by the court of appeals of New York, in the case of Flike v. Boston and Albany R'y Co., 53 N. Y. 553, "the true rule is to hold the corporation liable for negligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent intrusted with their performance. As to such acts, the agent occupies the place of the corporation, and the latter should be deemed present, and consequently liable for the manner in which they are performed."

Dowling v. Allen, 74 Mo. 13, 41 Am. Rep. 298, was, in its facts, very like the principal case. The plaintiff, being seventeen years of age, and without experience in the foundry business or with machinery, was employed by the defendant. At first his duties consisted in running errands and in sweeping out. Afterwards he was employed in a machine-shop, and in a yard where a turn-table was being constructed under the charge of King, one of his fellow-servants, whom he had been instructed to obey by the defendant's foreman. After plaintiff had been working about three weeks at the turn-table with King, the latter directed him to stop the engine. The engine could be reached in two ways, the shorter of which was to cross a revolving shaft. King directed the boy to hurry, and he therefore took the shorter way, and in stepping over the revolving shaft, he was caught by it, and suffered the injuries for which he sought compensation by the action. The court said: " 'We think the doctrine well settled by the authorities that, although the machinery, or that part complained of as especially dangerous, is visible, yet if by reason of the youth and inexperience of the servant he is not aware of the danger to which he is exposed in operating it or approaching near to it, it is the duty of the master to apprise him of the danger, if known to him."

The objection that the plaintiff was injured through the negligence of his fellow-servant was disposed of as follows: "Nor do we think that in this instance King, who gave the plaintiff the order to stop the engine, was the plaintiff's fellow-servant. While it appears that Fisher was foreman of the establishment, King had charge of the construction of the turn-table, and Fisher directed the plaintiff to go with King and do whatever he should direct. In McGowan v. Railroad Co., 61 Mo. 528, there was no proof that the conductor had the superintendence or control over the men or the work, or power to provide or replace machinery.' Here King was foreman of the hands constructing the turn-table. They were under him, and the plaintiff was expressly ordered by Fisher to do whatever King told him. A foreman of an entire establishment as extensive as defendant's cannot be everywhere present to direct the employees in their work; but must of necessity give

orders through others, as in this instance. In Marshall v. Shricker, 63 Mo. 309, relied upon by appellant, it was held that the employer cannot be charged with negligence of one who is merely a foreman over the plaintiff not engaged in a distinct department of the general service, but in some work with plaintiff, and not charged with any executive duties or control over plaintiff which would constitute him the agent of the employer.' Aside from the fact that King was foreman here, is the additional fact that Fisher directed plaintiff to do whatever King might order him to do; and he was in fact obeying Fisher in executing King's order. If it was negligence or recklessness to direct plaintiff to perform the work in the prosecution of which he received the injury, it was a direct consequence of the order given by Fisher, who was defendant's aliter ego."

The decision in the principal case is placed partly upon the ground that the plaintiff was not justified in obeying David Snape, by the fact that defendant's vice-principal had placed him in Snape's charge, with instructions to yield him obedience.

Snape was the boss of the tool-room; and the court was of the opinion that the instruction given to plaintiff by the vice-principal must be interpreted in connection with Snape's apparent employment, that of boss of the tool-room, and as not requiring or justifying the plaintiff in obeying him in respect to matters not taking place in such room. This construction of the direction given the plaintiff by defendant's vice-principal may be correct as a legal principle, and yet perhaps not be entirely conclusive of plaintiff's right to recover. If minors and other inexperienced persons are entitled to be warned of the dangers of machinery in operation in their presence and visible to them, the same careful and merciful spirit ought to exempt them from the consequences of misinterpreting language well calculated to mislead them, and requiring for a correct determination of its effect careful judicial deliberation. Even in the case of an adult employee, he cannot be expected to enter into disputes with those placed in authority over him. This question was carefully considered, and we think directly determined in the case of Chicago & N. W. R. Co. v. Bayfield, 37 Mich. 205.

Williams was a young man in the employ of the plaintiff in the capacity of a common laborer, and Smith was in charge of a construction train. While Williams was on a flat-car, near the engine, assisting in unloading ties, Smith ordered him to go back to the caboose and help stop the train. He started back, and was not again seen until it was discovered that he had fallen between the cars and received injuries resulting in his death. In a suit brought by his administratrix to recover for such injuries, it was claimed that no recovery could be had, because Williams was not under the direction and control of Smith, nor subject to his orders. The court to this objection replied: "The fact that Williams was under no obligation to obey the order of Smith is not, in our opinion, sufficient to sustain the first proposition. When one person engages in the employment of another, he undertakes to obey all lawful orders, and he subjects himself, for any failure to do so, to the double liability of being expelled from his employment and of being required to pay damages. It is true, the master had no right to direct him to do anything not contemplated in the employment; but when one thus contracts to submit himself to the orders of another, there must be some presumption that the orders he receives are lawful, the giving of the orders weing of itself an assumption that they are lawful; and the servant who refuses to obey would take upon himself the burden of showing a lawful reason for the refusal. This of itself is sufficient for excusing the servant who

declines the responsibility in any case in which doubts can possibly exist; he should assume that the order is given in good faith, and in the belief that it is rightful; and if, in his own judgment, it is unwarranted, it is not for the master to insist that the servant was in the wrong in not refusing obedience. Respect for the master, as well as a consideration for his own interest, may very properly induce him to waive his own judgment for that of his superior, and instead of engaging in disputes and being perhaps ejected from his employment, to leave questions of doubt for future settlement. Now, although we think, on the facts, as the jury has found them, there was no authority to send Williams to handle brakes, yet the point was not so clear but that serious question was made of it on the trial; and it would be grossly unjust to compel the servant at his peril to decide correctly on the validity of an order presumptively lawful, when the consequences of even a correct decision might be apparent insubordination, and perhaps difficulty and litigation. It is perfectly just, under such circumstances, to leave upon the master the responsibility he assumed in giving the unwarranted order, and to hold that the servant is not blamable in yielding obedience to his superior. . . . . Nor do we think it follows that, because Smith at the time was exceeding his authority, the company is not responsible for his action. It is in general no excuse to the employer that the injury which has occurred was caused by disobedience of his orders, whether they be express orders or implied orders. He assumes the risks of such disobedience when he puts the servant into his business, and the reasons for holding him responsible for the servant's conduct are the same, whether injury results from a failure to observe the master's directions, or from a neglect of the ordinary precautions for which specifie directions are deemed necessary. It will be conceded that, for a positive wrong beyond the scope of the master's business, intentionally or recklessly done, the master cannot be held responsible; this being very properly regarded as the personal trespass or tort of the servant himself. But when the wrong arises merely from an exercise of authority committed in furthering the master's interest, and the master receives the benefit of the act, if any, it is neither reasonable nor just that the liability should depend upon any question of the exact limits of the servant's authority. The master fixes these; and it is his duty to keep his servant, in what is done by him, within the fixed limits. An act in excess would still have the apparent sanction of his authority; the occasion for it would be furnished by the employment, and the injured party could not always be expected to know or be able to discover whether it was or was not without express sanction. In this case Smith had charge of the train and of the men employed with it. In what he did he was not purposely committing any wrong outside the employment; but his wrong was committed while acting in the very capacity in which he was employed, and had for its manifest purpose, not to injure Williams, but to advance the interests of the railway company. As between the company and any other than a fellow-servant, there could be no question that his act should be deemed the act of the company. But we also think that, where the superior servant, by means of an authority which he exercises by delegation of the master, wrongfully exposes the inferior servant to risks and injury, the master must respond. It is only where the risks properly pertain to the business and are incident to it that the master is excused from responsibility; and a risk of this nature, not being one of the kind, the general rule applies, and he must answer for the misconduct of his agent."

WHO ARE FELLOW-SERVANTS. — A yard-laborer and a locomotive-engineer: Chicago and Alton R. R. Co. v. Murphy, 53 Ill. 336; 5 Am. Rep. 48. A rail