12 j mmmn murormm.
movements of thetrain, and to control the persons employed upon it,
that his relation was that of a superior oiiicer in charge of the train, and _
that he stood for and as the representative of the corporation; that the
engineer was subject to his control. And the court likened it to the
case of a representative of a corporation who has control of a certain de-
partment in the service, other persons employed in the same depart-
ment being subject to his directions. The superior employed in such a
position represents the corporation, and it is therefore bound byhis acts,
and responsible for his negligence,~because the corporation. must act
through persons who are placed in positions of superior authority in the
different departments of the service. On the grounds stated, the Ran-
dalli Case and the Ross Case appear to rbe distinguishable. Randall v.
Railroad Oo. was followed in the case of Howard v. Railway C0., 26 Fed.
Rep. 837. In that case it was held that aafireman on a passenger train,
` and an engineer in charge of an engine not connected with such train,`
butbelonging to the same railroad company, are fellow-servants, and
where the Ereman was killed by a collision between the engine and train
occasioned by the negligence of the engineer, the company was not liable.
Judge BREWER discusses the question at length in his opinion in that
case. . * - e
Following out the logic of the Randall (hse and this case to which I.
have just referred, it is my conviction that the plaintiff in the case at
bar has made a case in which, if there was negligence at all, it was neg-
ligence on the part of the engineer who controlled the motive power of
this elevator, and of the elevator boy, one or both, and that they were
the fellow-servants of the other employes, including the plaintiff, who
were in the habit of riding in the elevator to and from their work. All
were in the service of the defendants. The elevator was used in carry-
ing on the business in which all were engaged. It is like the case of the
engineer who is running an engine connected with a train, and the other
employes who are in service on the same train. Here was an apparatus
which was put into the defendants’ building for the purpose of enabling
I the employes to prosecute the work which they were employed to do.
They were engaged in different rooms,,and ditierent stories of the build-
I ing. Theyiwent to and from theirwork ` by means of this elevator.
Here was a man in the basement who controlled the use of the steam-
power_ by whichthe elevator was moved up and down. The elevator
was one of the instruments by which the work of all was being carried
on. The engineer had not charge of a department. He was simply an
instrumentality controlling the use of the motive power, and was cer-
tainly a fellow-servant withithe plaintiii`, as was the elevator boy, if the _
persons employed by the railroad company in the Randall Case were fel-
low—servants. They wererall doing work——to use the language pf some i
of the cases-v-which conduced to a common result; neither worked un-
» der the orders or contro1.»of _ the other, and so they were fellow-servants.
Counsel are familiar with the rule in relation to the duty of the court
in submitting a case to the jury. That rule is, as laid down by the