enabled either of them, as against the other, to insist upon a dedication at any time after January 1, 1886. We may view it from another standpoint.

It is insisted that the alienation of his land by respondent renders it impossible to insist upon specific performance on the part of the city because the other parties are not in a position to perform on their part. But such alienation was not made until after the contract, if any existed, was broken on the part of the city. Now, if an enforceable contract existed against the city, certainly damages for its breach, if any were sustained, can be recovered. That action is left to appellant, which ought, perhaps, to be a sufficient reason why he ought not to recover against this respondent. But it is clear to us that appellant never had any right of action for specific performance against the city. While the power of a court of equity to thus coerce the legislative branch of a municipal government is very doubtful, (see Wells, Juris. 33 et seq.,) yet we do not base our decision on that ground. Both the contract and the resolution provide that the city, when it accepts such dedication, shall agree to maintain the same as a public park forever, in good repair, or in as good repair as when accepted, free from all nuisances whatsoever, and place only such buildings and improvements thereon as shall be suitable to the purposes of a public park. Now, it is evident that these covenants are continuing covenants, and their enforcement would or might require the constant supervision of a court. Courts of equity will never compel specific performance of such contracts. Blanchard v. Railroad Co., 31 Mich. 43, and the extended citations in the reporter's note to that case. Again, every alleged violation of said contract would involve the consideration and determination of questions of fact. Such contracts are never specifically enforced. Caswell v. Gibbs, 33 Mich. 331. The transfer of his land by respondent deprived appellant of no legal right. The judgment of the district court dismissing the complaint is affirmed. All concur.

WILLIAM ELL, Respondent, v. NORTHERN PACIFIC RAILROAD COMPANY, Appellant.

1. Negligence - Fellow-Servant.

The negligence of the foreman of a gang in failing to block a pile which was shoved against plaintiff, injuring him, because it was not blocked, is the negligence of a fellow-servant, although the foreman had authority to employ and discharge plaintiff, and the plaintiff was under his superintendence and control in doing the work in the performance of which he was injured.

2. Who Are Fellow-Servants.

Whether a negligent servant is the fellow-servant of an employe who is injured by the carelessness of the former depends, not upon the relative ranks of the two servants, but upon the character of the work, the negligence with respect to which resulted in the injury.

3. When Negligence of Servant is the Negligence of the Employer.

The negligent performance or omission to perform a duty which the master owes to his employes is at common law the negligence of the master, whatever the grade of the servant who is in that respect careless. The negligence of a servant engaged in the same general business with the injured servant is the negligence of a fellow-servant, whatever position the former occupies with respect to the latter, as to all acts which pertain to the duties of a mere servant, as contradistinguished from the duties of the master to his employes.

4. Negligence; Measure of Damages.

A

In actions for damages for negligence, interest may be awarded or withheld in the discretion of the jury.

(Opinion Filed January 15, 1891.)

PPEAL from district court, Stutsman county; RODERICK
ROSE, Judge.

John C. Bullitt, Jr. and John S. Watson, for appellant: The judgment can be sustained only by the adoption of the superior servant limitation of the fellow-servant rule. The idea that the master is responsible to inferior servants for acts of superiors has produced confusion in the decisions. In general it is favored by the southern and western courts, and by the U. S. supreme court; but is repudiated by courts whose number and authority (saving the U. S. supreme court) outweighs that of those favor

ing the doctrine: McKinley on Fellow Servants, §§ 111 to 167; Dillon in 24 Am. Law Rev. p. 118; Crispin v. Babbitt, 81 N. Y. 516; Hanathy v. R. R. Co., 46 Md. 280; Zeigler v. Day, 123 Mass. 152; Hogan v. R. R. Co., 49 Cal. 128; Am. and Eng. R. R. Cases, vol. 17, p. 516: Fanvell v. R. R. Co., 4 Metc. 49; Herbert v. R. R. Co., 3 Dak. 38; Elliot v. R. R. Co., 41 N. W. 757, etc. The company's duty to the plaintiff was fulfilled when it had furnished suitable appliances for the work; the negligent use of the appliances by a fellow servant of whatever grade was one of the plaintiff's employment.

S. L. Glaspell for respondent: In adopting unqualifiedly the superior servart limitation of the fellow-servant rule this court would follow the Supreme Court of the United States and every state supreme court which has passed upon the question as an original proposition since 1884, when C. M. & St. P. R. Co. vs. Ross, 112 U. S. 377, was decided and the superior servant limitation given a full and unqualified adoption by the highest court in this country. The rule as laid down by Mr. Justice Field in that decision is as follows: "There is, in our judgment, a clear distinction to be made in their relation to their common principal, 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 that of direction and superintendance."

The rule is recognized in Elliott vs. Railroad Co., 5 Dak. 223, s. c. 41 N. W. 758; and see Railroad Co. v. Fort, 17 Wall. 553, s. c. 21 L. Coop. Ed. 739.

By the clear weight of authority it is now held, that the general rule, that the master is exempt from liability to one servant for an injury caused by the negligence of a fellow servant, does not apply where the injured servant is inferior in rank to the one by whose negligence he is injured, and is under the direction and control of such other and is bound to obey his orders: Beach on Contrib. Neg. § 110; Deering on Neg. § 204; Thompson on Neg. vol. 2, p. 1028; Sherman & Redfield on Neg. (4th Ed.) § 226; Wharton on Neg. § 229; Gravelle v. M. & St. L.

Ry. Co., 10 Fed. 711; Miller v. U. P. R. Co., 12 Fed. 600; Thompson v. C. M. & St. P. R. Co., 14 Fed. 564; Mason v. Edison, 28 Fed. 228; Borgman v. St. L. & O. R., 41 Fed. 667; Slater v. Chapman, (Mich.) 35 N. W. 106; Berea Stone Co. v. Kraft, 31 Ohio St. 287; Brown v. Sennett, (Cal.) 9 Pac. 74; Railroad Co. v. Driscoll, (Col.) 21 Pac. 708; Kelley v. Cable Co. (Mont.) 14 Pac. 633; N. P. R. Co. v. O'Brien, (Wash.) 21 Pac. 32; Railroad Co. v. Hawk, (Ill.) 12 N. E. 253; Railroad Co. v. Fox, (Kan.) 3. Pac. 320; Harrison v. Railroad Co., (Mich.) 44 N. W. 1034; Railroad Co., v. Smith (Neb.) 36 N. W. 285; Criswell v. Railroad Co., 30 W. Va. 798, s. c. 33 Amer. & Eng. R. Cases 232; Stephens v. Railroad Co., 86 Mo. 221, s. c. 28 A. & E. R. Cases 538; Railroad Co. v. Collins, 2 Duv. (Ky.) 113, s. c. 87 Amer Dec. 486; Railroad Co. v. Jones, 9 Heisk, (Tenn.) 27; Patton v. Railroad Co., (N. Car.) 31 A. & E. R. Cases 298; Mann v. Orient Print Works, 11 R. I. 152; Couch v. Railroad Co., 22 S. C. 557, s. c. 28 A. & E. R. Cases 331; Ayres v. Ry. Co., (Va.) 33 A. & E. R. Cases 269; Darrigan v. Railroad Co., 52 Conn. 285; Van Amburg v. Railroad Co., 37 La. 650; Railroad Co. v. Williams, (Va.) 9 S. E. 990; Baldwin v. Railroad Co., 63 Iowa, 210, s. c. 39 N. W. 507; Atlanta Cotton Factory Co. v. Speer 69 Ga. 137, s. c. 47 Amer. Rep. 750; Reddon v. U. P. R. Co., (Utah) 15 Pac. 262; Hobson v. Railroad Co., (New Mex.) 28 A. & E. R. R. Cases 360

These authorities adopt the limitation without reserve and without qualification as to the specific act of negligence, viz., whether the negligence grows out of a duty which the master owes to the servant or not; and hold that the negligence of a superior servant whatever it be is the negligence of the master.

In some states where the superior servant limitation is denied it is conceded that where a foreman has the power of employing, directing and discharging men under him, that he is a vice principal.

Mr. McKinney in his work on Fellow Servants, § 64, claims Texas as one of the states which "discountenances the limitation;" and while that may be true, it is held in Missouri Pac. R. Co. v. Williams, (Texas) 12 S. W. 835: "A servant who has the authority to employ other servants, under his immediate super

vision, exercises an important function of his master, and has as full control over them as the master would have were he present acting in person. The subordinate, in such case, is as much the servant of the agent who employs and controls him as he would be of the master, were the latter discharging the functions of the agent. It seems, therefore, that there is as much reason for holding that a servant assumes the risk of the master's negligence as for holding that he assumes the risk of the negligence of such a superior employe of his master. He may be presumed to exercise an influence over a co-employe who did not employ and has no power to discharge him, calculated to promote care and vigilance on the part of the latter, which he cannot or dare not exercise towards one who has the right to terminate his employment." And to the same effect see Patton v. Railroad, 31 Amer. & Eng. R. Cases 303.

The learned editor of the American and English Railroad Cases says, in his note to Chicago, Milwaukee & St. P. R. Co. v. Ross, 17 Amer. & Eng. R. Cases 514: "It is, we believe, true that in every case where the power to employ and discharge exists, the relation established has been held to be not that of a fellow servant, but of vice principal." See list of cases cited in same note, and notes in Vol. 17, Amer. & Eng. R. Cases p. 560 and 563; Railroad Co. v. Sullivan, 41 A. & E. R. Cases 463.

This superior servant limitation must be correct in some cases, or a corporation would escape liability altogether. Many courts have therefore qualified the doctrine to the extent of holding that the master is only liable when the superior servant violates some duty which the master owes to the inferior servant. It is the duty of the master to furnish a reasonably safe place to work, and safe and proper tools. It is the duty of the master to maintain such, and his duty of caring for the safety of his men is continuing, and never ceases while they are in his employ.

Counsel for appellant first seeks to escape the rule of the master's liability for the negligence of a superior servant, resulting in injury to an inferior acting in obedience to the order of the superior, and next he contends that a specific act of negligence charged, viz., the omission of Withnell to block the out