3 Sup. Ct. Rep. 322-a brakeman and conductor of different trains; Van Wickle v. Railway Co., 32 Fed. Rep. 278-a track repairer and an engineer; McMasters v. Railroad Co., (Miss.) 4 South. Rep. 59-brakeman of one train and employe on another; Naylor v. Railroad Co., 33 Fed. Rep. 801-engineer and switchman; Van Avery v. Railroad Co., 35 Fed. Rep. 40-engineers of different trains; Connelley v. Railroad Co., (Minn.) 35 N. W. Rep. 582-a sectionman and an engineer or brakeman; Howard v. Railroad Co., 26 Fed. Rep. 837-an engineer and fireman of different trains; Railroad Co. v. Rider, 62 Tex. 267; Gormley v. Railroad Co., 72 Ind. 31; Collins v. Railroad Co., 30 Minn. 31, 14 N. W. Rep. 60; Clifford v. Railroad Co., 141 Mass. 564, 6 N. E. Rep. 751; Keyes v. Railroad Co., (Pa) 3 Atl. Rep. 15; Whaalan v. Railroad Co., 8 Ohio St. 249-in each case an engineer and a sectionman. Without stating the relation of the injured to the negligent servant in each of the following cases, they are referred to as being in the same line: Holden v. Railroad Co., 129 Mass. 268; Valtez v. Railroad Co., 85 Ill. 500; Besel v. Railroad Co., 70 N. Y. 171; Brown v. Railroad Co., (Cal.) 7 Pac. Rep. 447; Roberts v. Railroad Co., 33 Minn. 218, 22 N. W. Rep. 389; Brown v. Railroad Co., 31 Minn. 553, 18 N. W. Rep. 834; Cooper v. Railroad Co., 23 Wis. 668; Heine v. Railroad Co., 58 Wis. 525, 17 N. W. Rep. 420; Capper v. Railroad Co., 103 Ind. 305, 2 N. E. Rep. 749; Henry v. Railroad Co., 81 N. Y. 373; Blake v. Railroad Co., 70 Me. 60; Harvey v. Railroad Co., 88 N. Y. 481. The list might be greatly enlarged.

Going back to the fountain, we find this idea of exertion of influence by the injured servant as the basis of the servant rule distinctly repudiated. In the Farwell case, 4 Metc. (Mass.) 60, Chief Justice Shaw says: "It was strongly pressed in the argument that although this might be so where two or more servants are employed in the same department of duty, where each can exert some influence on the conduct of the other, and thus to some extent provide for his security, yet that it could not apply where two or more are employed in different departments of duty at a distance from each other, and where one can in no degree influence or control the conduct of the other. But we think this is founded upon a supposed distinction on which

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it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department, and what a distinct department, of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be the same or different departments? Besides, it appears to us that the argument rests up an assumed principle of responsibility which does not exist. The master in the case supposed is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort as for the negligence of his servant because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow-servant does not depend exclusively upon the consideration that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments cannot create that liability where it does not arise from express or implied contract, or from a responsibility created by law to third persons and strangers for the negligence of a servant." It is thus apparent that there is nothing in the fact that an inferior servant may not be able to exert any influence for safety over his superior to justify the refusal to apply the fellow-servant rule. On principle, we are opposed to the doctrine of the Ross case, 112 U. S. 377, 5 Sup. Ct. Rep. 184. We believe that the true rule was stated and applied in Crispin v. Babbitt, 81 N. Y. 516: “The liability of the master does not depend upon the grade or rank of the employe whose negligence causes the

injury. A superintendent of a factory, although having power to employ men or represent the master in other respects, is in the management of the machinery a fellow-servant of the other operatives. The liability is thus made to depend upon the character of the act in the performance of which the injury arises, without regard to the rank of the employe performing it. If it is one pertaining to the duty that the master owes to his servants he is responsible to them for the manner of its performance. The converse of the proposition necessarily follows: If the act is one which pertains to the duty of an operative, the employe performing it is a mere servant; and the master, although liable to strangers, is not liable to a fellowservant for its improper performance." To same effect are Lindvall v. Woods, (Minn.) 42 N. W. Rep. 1020; Davis v. Railroad Co., 55 Vt. 84; State v. Malstar, 57 Md. 287; Car Co. v. Parker, 100 Ind. 191; Hussey v. Coger, 112 N. Y. 614, 20 N. E. Rep. 556; Copper v. Railroad Co., (Ind.) 2 N. E. Rep. 749; Yates v. Iron Co., (Md.) 16 Atl. Rep. 280; Elevator Co. v. Neal, 65 Md. 438. 5 Atl. Rep. 338; McGovern v. Manufacturing Co., (Ga.) 5 S. E. Rep. 492; Lewis v. Seifert, (Pa.) 11 Atl. Rep. 514; Olson v. Railroad Co., (Minn.) 35 N. W. Rep. 866; Anderson v. Winston, 31 Fed. Rep. 528; Webb v. Railroad Co., (N. C.) 2 S. E. Rep. 440.

This list might be added to, but we are concerned not so much about the number of cases to be cited in support of our views as about the soundness of our position upon principle. We believe that the fellow-servant rule should hedge about all masters without discrimination; that its wise and just barrier against liability should not be broken down by a fiction; that those whose business, from its very nature, necessitates gradations of service should not be deprived of its protection on account of a distiction which in no manner affects the considerations which gave it birth, and have led to its almost universal adoption. We see nothing to justify the limitation doctrine, except the increased safety of employes in a dangerous business; and this applies, if at all, equally to cases where the two servants are of the same grade. But, so far from augmenting their safety, the liability of the master will have the contrary effect, if it produces any effect at all. That servant will grow more careless, who in

stead of being exclusively liable for his own negligence, finds that beyond him is another liability, so much more desirable to the injured servant that the careless servant is invariably lost sight of the liability of the corporation, against which the verdict is more easily secured, and, when obtained, is certain of payment.

We have assumed that our statutes on this question (§ 3753 Comp. Laws) are only declaratory of the common law. But we do not decide whether they limit the liability of a master. They certainly impose upon him no greater responsibility than the common law, and, as the question of their restrictive force has not been discussed, we do not decide it. See Herbert v. Railroad Co., 3 Dak. 38, 13 N. W. Rep. 349, on appeal 116 U. S. 642 6 Sup. Ct. Rep. 590, and dissenting opinion. We are clear that the trial court erred in refusing to charge the jury that the negligence of Withnell in failing to block the pile was the negligence of a fellow-servant, and in instructing them that it was not; and for this error the judgment of the district court is reversed. There are other questions in the case, on which we refrain from expressing any opinion, as the evidence on a new trial may be materially different. This does not apply to the question of interest, and we therefore hold that the trial court erred in charging the jury to give the plaintiff interest on his recovery, without submitting it to their discretion. "In an action for the breach of an obligation not rising from contract,

in

terest may be given in the discretion of the jury." § 4578, Comp. Laws. Judgment reversed, and new trial ordered. All con

cur.

OVE JOHNSON, Respondent, v. NORTHERN PACIFIC RAILROAD COMPANY, Appellant.

1. Bills of Exceptions-Order Extending Time to Settle. Where the district court by ex parte orders, which were duly served on respondent's counsel, enlarged the time for settling a bill of exceptions, no reason being brought upon the record for granting such orders, and counsel for respondent appearing, and objecting to the settlement, held, such orders were such as the court had authority to make ex parte, and were therefore prima facie valid. Nothing to the contrary being shown, this court will assume that such orders were based upon a proper showing of cause.

2. Same; Settlement After Statutory Time Had Elapsed. Where, after time granted for settling a bill had expired, the district court, without making an order extending time, and, against objection, settled and allowed the bill, held not error. Such order of settlement operated to extend the time until the date of the actual settlement. It is within the power of the district court, under the Code, either to enlarge time, or to allow an act to be done after the time limited by the Code. Comp. Laws, §§ 4939, 5093. Under existing statutes, settling bills of exception and statements, and giving notice of intention to move for a new trial, are matters not of a jurisdictional nature. Until the time for appeal has expired, all of the various steps leading up to and including a motion for a new trial may, with respect to time, after statutory time has elapsed, be taken at any time allowed by the sound judicial discretion of the trial court. This court will presume that such discretion is properly exercised in all cases until the contrary appears.

3. Railroad Companies - Presumption of Negligence.

In an action for damages caused by a prairie fire alleged to have been started by defendant's negligence, and where the complaint charges negligence both as to the machinery and appliances in use upon the train which threw out the fire, and as to the management of such machinery and appliances, held, the primary fact that defendant's train threw out the fire in question being shown, such fact of itself will operate to make out a prima facie case of negligence. Such fact creates a disputable presumption of defendant's negligence.

4. Same; Same; How Rebutted.

Held, further, that the prima facie case of negligence cannot be rebutted by the defendant by showing merely that the machinery and appliances were of a proper character, and were at the time in good condition, without showing the further fact that the same were handled with due care at the time the fire was thrown out.