class of injuries and carves such class out of the general rule given in the second clause; that the injury complained of by King is clearly one to his rights, not arising on contract, and not contained in any of the enumerated exceptions to the third subdivision of the section under consideration; that the only exception made by the statute is of the cases "hereinafter enumerated;" that if the legislature had intended that the rule should be subject to any case provided for in any previous section or subdivision, it would have expressed such intention. We think these latter views expressed by counsel are, in the main, correct. It is conceded if King had been injured by a co-employee, and the company had failed to exercise due care and diligence in employing or retaining such co-employee, the two-years statute of limitations would apply.

Again under section 422 of the Code, which provides for an action for damages by the personal representative of one killed by the negligence of another, the time for bringing the action is limited to two years. The statute should be construed, if possible, to harmonize its various provisions and give reasonable effect to all, and in reconciling conflicting clauses, force should be given to those clauses which would make the statute in harmony with other legislation on the same subject. As was said in Piller v. Railroad Co., 52 Cal. 45: "It is hardly to be believed that it was intended that a longer time should be given when the person injured was not killed."

The liability of the railroad company for the injury complained of accrued when the accident occurred, and by construing the words "an action for injury to the rights of another, not arising on contract," as qualifying and limiting subdivision 2 of said section 18, we give full force to the terms of subdivision 3, and leave the concluding clause of said subdivision to operate in other matters. We follow the true rule of construction and make the various provisions of the statute of limitations harmonize for the commencement of a cause of action for a personal injury resulting from the negligence of the master, and for one resulting from the negligence of a co-employee in the service of a railroad company without the fault of the master, and also for a cause of action by the representative of the injured party when the injury results fatally.

The trial court erred in overruling the demurrer to the petition; erred in admitting testimony against the objections presented; and erred in not sustaining the demurrer to the evidence. The judgment of the court below must therefore be reversed, and the cause remanded, with direction to sustain the demurrer to the petition, and enter judgment for the railroad company.

See Mobile & M. R. Co. v. Crenshaw, 8 Am. & Eng. R. R. Cas. 340; Tobin v. Houston, etc., R. Co., 8 Am. & Eng. R. R. Cas. 477.

BROWN

V.

MINNEAPOLIS AND ST. L. Rr. Co.

(Advance Case, Minnesota. March 31, 1884.)

In the absence of controlling evidence to the contrary, an ordinary railway station agent is presumed to have general charge of the tracks in and about his station.

As respects such charge he is the fellow-servant of an engineer engaged in running a locomotive upon any of such tracks, and hence the common master of the two is not responsible to the engineer for injury which he may receive in consequence of the negligence of the station agent as respects the charge of such tracks.

APPEAL from an order of the District Court, Hennepin County. Merrick & Merrick for appellant, Sheldon F. Brown.

J. D. Springer for respondent, Minneapolis & St. L. Ry. Co.

BERRY, J.-While plaintiff was running a regular passenger train upon defendant's railroad as a locomotive engineer, his engine (without apparent fault on his part) ran into some box cars standing upon the main track at Winthrop station and he was injured. The main track was that to which plaintiff's train was entitled. The freight cars had been placed there by persons not in defendant's employ, for their own convenience, and without other authority than the assent of the station agent. They were placed there about 3 P.M., and the collision occurred at 7:35 P. M., so that they had been there more than four hours. The train was due at the station at 7:27. The plaintiff put in evidence a rule of the company as follows:

"Station agents are responsible for safety of switches, which must always (except when a man is standing by) be kept right for trains running on main track. They must see that no cars are moved on side track so near the switches as not to properly clear the main track. Cars must not be allowed on the main track to load or unload, unless permission is obtained from train-master."

There was no evidence of any other rule or regulation, express or implied, as to the management of the tracks at or about the station, or as to the duties of a station agent. But we agree with the plaintiff's counsel that, in the absence of controlling evidence to the contrary, an ordinary railway station agent is to be taken as having general charge of the tracks at and about his station. This is a reasonable presumption of fact, founded upon the ordinary course of business, the common understanding of the public, and

the nature and necessities of the case. Of course, the station agent is always subject to the control of his superiors, and his general charge may be limited by rules and regulations; as, in this instance, by the prohibition to place cars upon the main track to load or unload without permission from the train-master, or by the assignment of some portion of what would ordinarily be his duties to some other person. The presumption spoken of appears to be assumed by the rule put in evidence.

As a consequence of these views it is clear that, upon the facts before stated, it was the duty of the station agent, as respects the plaintiff, to see to it that the main track was unobstructed and ready for his train, and that, in suffering it to be obstructed as it was, the agent was guilty of negligence through which plaintiff was injured. As respects the defendant, this negligence of the station agent is the only negligence of which plaintiff can or does complain. In this state of facts the trial court dismissed the action, being of opinion that the station agent was plaintiff's fellow-servant, and that, therefore (no charge of incompetence being made against him), plaintiff cannot recover for the injuries resulting from his negligence. It remains to consider whether this opinion is correct.

Prima facie the plaintiff and the station agent were fellowservants, for they were acting together under one master in carrying out a common object. Gilman v. Eastern R. Co., 10 Allen, 233. They were engaged in the same common employment, under the same general control. Cooley, Torts, 544, and cases cited. They were subject to the same general control, coupled with an engagement in the same common pursuit. Wood, Mast. & Serv. S$ 426, 435, and cases cited. McGowan v. Railroad Co., 61 Mo. 528; Thomp. Neg. p. 1037, § 38. Is there anything to except the station agent from this prima facie relationship of fellow-servant to the plaintiff? He would be excepted only if he stood in the place of the master as a vice-principal, or, as it is sometimes expressed, as the master's alter ego. Malone v. Hathaway, 64 N. Y. 5. But one employed becomes a vice-principal as respects another only when he is intrusted with the performance of some absolute and personal duty of the master himself, such as the providing of proper instrumentalities with which the service required of an employee is to be performed, or the general management and control of the master's business, or of some branch of it. Drymala v. Thompson, 26 Minn. 40, and cases cited; Wood, Mast. & Serv. $$ 390, 438; Mullan v. P. & S. M. S. Co., 78 Pa. St. 25; Malone v. Hathaway, supra. In such cases the negligence of the viceprincipal is the negligence of the master. Drymala v. Thompson, supra; Fay v. Railroad Co., 30 Minn. 231; Cooley, Torts, 560, 563; Corcoran v. Holbrook, 59 N. Y. 517; Quincy M. Co. v. Kitts, 42 Mich. 34; Booth v. Railroad Co., 73 N. Y. 38. But the general

management or control of the master's business, or some branch thereof, does not include the case of one simply charged with special duties performing them under the direction of the master, or under the control of superior officers. Malone v. Hathaway,

supra.

Applying the rule that, the facts being undisputed, the relation of the station master to the plaintiff is a question of law (Marshall v. Schricker, 63 Mo. 309), in our opinion the station master in this case does not fall within the exception to the rule making him prima facie plaintiff's fellow-servant. Here there was no neglect to furnish or maintain suitable instrumentalities for the performance of plaintiff's proper service; and herein this case differs essentially from Drymala v. Thompson, supra, relied upon by plaintiff. There the track itself was defective. Here no complaint is made that the track was improperly constructed or in bad order. But the complaint, in effect, is that a proper track was improperly used or attended to by the station agent. A master is not, by reason of any absolute or personal duty on his part, liable to one employee for the improper use of proper instrumentalities by another. Floyd v. Sugden, 134 Mass. 563; Summersell v. Fish, 117 Mass. 312; Griffiths v. Gidlow, 3 Hurl. & N. 648; Gibson v. Pacific R. Co., 46 Mo. 163; Wood, Mast. & Serv. § 371; Brown v. W. & St. P. R. Co., 27 Minn. 162; Heine v. Chicago & N. W. R. Co., 17 N. W. Rep. 420.

Any other doctrine would obviously lead to most astonishing consequences. Neither is the station agent's case that of an officer exercising general control or management of the defendant's business, or of a branch thereof. He is simply charged with special duties as to his station, as a switchman sometimes is as to a particular switch or an engineer as to a particular engine. His duty is simply that of an operative. Farwell v. B. & W. Co., 4 Metc. 49; Gilman v. Eastern R. Co., supra; Zeigler v. Day, 123 Mass. 152; Crispin v. Babbitt, 81 N. Y. 516; McClosker v. L. I. R. Co., 84 N. Y. 77; Harvey v. Railroad Co., 88 N. Y. 481; Slattery's Adm'r v. Railway. Co., 23 Ind. 81; Moak, Eng. Rep. 340, 342; Flynn v. Salem, 134 Mass. 351. As it would seem, then, that there is nothing to take the station agent in this instance out of the category of a prima facie fellow-servant of the plaintiff, we are of opinion that the court below was right in holding him to be such fellow-servant and dismissing the action accordingly.

The order refusing a new trial is accordingly affirmed.

GIBBS et. al.

v.

GREAT WESTERN RY. Co.

(English Law Reports, 12 Queen's Bench Division, 208.)

In an action for compensation under the Employers' Liability Act, 1880, the evidence showed that it was the duty of F., a workman employed in the signal department of the defendants' railway, to clean, oil, and adjust the points and wires of the locking apparatus at various places along a portion of the line, and to do slight repairs, that for these purposes he was, with several other men, subject to the orders of an inspector in the same department, who was responsible for the points and locking gear, which were moved and worked by men in the signal boxes, being kept in proper condition, and that F. having taken the cover off some points and locking gear in order to oil them, negligently left it projecting over the metals of the line whereby injury was caused to a fellow workman:

Held, that there was no evidence for the jury that F. had "charge or control" of the points within the meaning of s. 1, sub-s. 5, of the Employers' Liability Act, 1880, so as to make the defendants liable for his negligence.

APPEAL by the plaintiffs from the decision of the Queen's Bench Division making absolute a rule nisi to set aside a verdict for the plaintiffs, and to enter a nonsuit on the ground that there was no evidence of liability on the part of the defendants under the Employers' Liability Act, 1880. The action was brought in the Marylebone County Court by the widow and children of George Gibbs, to recover compensation in respect of personal injury resulting in death, sustained by Gibbs whilst in the defendants' employment.

The material facts appearing on the judge's notes are stated in the report of the case before the Queen's Bench Division, 11 Am. & Eng. R. R. Cas. 235. The sole question for the purpose of the present report is, whether there was evidence to go to the jury that one Fisher, a fellow workman with Gibbs, in the employment of the defendants, by whose negligence the injury had been caused, was a person having "the charge or control" of points upon the railway within the meaning of s. 1, sub-s. 5, of the Employers' Liability Act, 1880. As to this, Fisher's evidence-in-chief was as follows: "I am employed by the company in the signal department, and have charge of the locking apparatus. A youth was working under me. My duty is to clean, oil, and adjust the points and wires, and keep them oiled, and to see that the boy does his work." His evidence on cross-examination was: "My duties are to clean and oil the locking bars and apparatus. I had several