may obtain a lien upon such land from the same time, in the same manner and to the same extent as the original contractor, for the amount due him for such material

* by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which the material was last furnished

*

串

*

* under such sub-contract, a statement verified by affidavit, setting forth the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property upon which a lien is claimed; and by serving a notice in writing of the filing of such lien upon the owner of the land: provided, that the owner of any land affected by such lien shall not thereby become liable to any claimant for any greater amount than he contracted to pay the original contractor; but the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days hereinbefore specified; and no owner shall be liable to an action by such contractor until the expiration of said sixty days, and such owner may pay such sub-contractor the amount due him from such contractor for such labor and material, and the amount so paid shall be held and deemed a payment of said amount to the original contractor." A reference to the statement for a lien will show that it is defective as a subcontractor's lien, in that it recites that the contract for the sale of the material was made with the owner direct; the latter being assisted in the purchase by Buckner, the contractor. The word "contractor" appears but once in the lien statement, and then as descriptio personæ of Buckner. The name of the owner is specifically set forth, also the name of the claimant, but the name of the contractor is incidentally mentioned as descriptive of the person who helped the owners buy the material of the sash and door company. A copy of the lien, accompanied by the notice of its filing, was served on the church trustees. The statute provides that "the risk of all payments made to the original contractor shall be upon the owner until the expiration of sixty days hereinbefore specified"; that is, from the date when the material was last furnished. No risk was incurred by payment to Buckner by the church trustees, because plaintiff does not assert in the lien or notice that Buckner was the "original contractor." There seems to have been a studied purpose of the lien claimant not to place itself in the attitude of a subcontractor dealing alone with Buckner. It so phrased the lien statement that it might be available if the evidence showed it to be either the original contractor or a subcontractor. In McIntyre v. Trautner, 63 Cal. 429-a case which is almost parallel in its facts to the present one the lien notice contained a statement

that one George Scheibel was the name of the contractor who "as such contractor and as agent for and on behalf of said Trautner [defendant], entered into a contract with said McIntyre [plaintiff], under and by which" the work was done and the materials furnished. It was held that the words "as a contractor" were surplusage, and did not detract from the effect of the statement that Scheibel, in employing plaintiff, acted as agent for the defendant. See, also, Denver Hardware Co. v. Croke, 4 Colo. App. 530, 36 Pac. 624. The prayer of the petition is appropriate to an action brought by plaintiff below as an original contractor with the owner of the property. It asks for a personal judgment against Buckner, and also against the church trustees. If the Western Sash & Door Company was a subcontractor, it could not recover a personal judgment against the owner. Hodgson v. Billson, 12 Kan. 568.

When this case was here before (65 Kan. 5, 68 Pac. 1080), comment was made on the fact that the llen statement showed that the material was sold by the sash and door company direct to the church corporation. The questions involved now were not decided, however, at the former hearing.

The statement for a lien and the notice not being sufficient, under our statute, to fix a subcontractor's claim on the church property, the judgment of the court below will be affirmed. All the Justices concurring.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 479, 486492.]

2. The assignment of servants of the same master to separate departments of the same general enterprise does not affect their relation as fellow servants, unless such departments are so far disconnected that each one may be regarded as a separate undertaking.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 475-479.]

3. It is not essential to the fellow servant relation between employés of the same master that they should have an opportunity to become acquainted with each other, or to observe each other's conduct, or to take precautions against each other's negligence, or to influence each other in the formation of habits of foresight and

care.

4. Fellow servants assume the risk of injury from each other in their common conduct of the master's work.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 567-573.]

5. The master, however, contracts to exercise reasonable care in the selection of his servants, and to furnish them all with a reasonably safe place in which to work, and reasonably safe materials, tools, and appliances with which to work; and he is liable for injuries resulting from breaches of these duties, no matter what the ordinary duties or the rank or grade or department of the servant to whom their performance has been delegated.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 173, 174, 336.]

6. A member of a pile-driving crew, engaged in driving piling for the erection of false work essential to the reconstruction of a bridge, is a fellow servant with a machinist employed by the same master to repair stationary engines located in the midst of the work upon barges, upon the bridge, and upon the falsework, and used for hoisting material and driving piling in the progress of the general enterprise of building the falsework.

(Syllabus by the Court.)

Error from District Court, Atchison County; B. F. Hudson, Judge.

Action by Lena M. Miller, administratrix, against the Atchison & Eastern Bridge Company. Judgment for plaintiff. Defendant brings error. Reversed.

W. W. & W. F. Guthrie, for plaintiff in error. Z. E. Jackson and Jackson & Jackson, for defendant in error.

BURCH, J. At the time the injury complained of in this litigation was inflicted, the Atchison & Eastern Bridge Company was engaged in the erection of false work essential to the reconstruction of a bridge across the Missouri river at the city of Atchison. The falsework served as a substructure of the old bridge during the dismantling process, of the new bridge as piece by piece it replaced the old one, and of a temporary bridge for highway purposes alongside the bridge proper, over which railway traffic was not interrupted. Many men were employed in many kinds of service. A single superintendent managed the entire work, various branches of which were in charge of foremen who directed the operations of separate squads and gangs. Material was assembled and distributed by skiffs and barges on the river, and by cars on the bridge tracks. Many kinds of tools and much machinery were used and transported from place to place. Piles were driven and braced and capped, and a multitude of subsidiary acts performed, all to the ultimate end that the falsework might be brought to completion. Stationary engines were used to hoist material and to drive the piling. These engines were located in the midst of the work, upon the barges, upon the bridge, and upon the falsework. The plaintiff's intestate, Miller, was employed as a machinist by the bridge company to repair them, and, in addition, to operate them when necessary. On the first day of his service, while he was engag ed in repairing an engine situated on the bridge, and only three feet from its north

edge, a pile driver barge moored below him, and the crew undertook to drive a pile. It met with an obstruction which rendered it necessary to raise it and resharpen the point. While it was suspended for that purpose, its top towering 30 feet above the floor of the bridge, it fell, and Miller was knocked under the wheels of a passing train, where he received injuries from which he died. His administratrix recovered a judgment against the bridge company, to reverse which this proceeding in error was instituted.

On the trial it sufficiently appeared that the injury was caused by the negligence of a member of the pile-driving crew in fastening the chain used to lift and hold the pile in suspension. The jury, however, returned special findings of fact which raise the question whether the member of the pile-driving crew charged with the duty of adjusting the chain was not a fellow servant of Miller in the general enterprise of constructing the falsework. Such findings, arranged as well as they may be to develop the subject, are as follows:

"(81) State whether or not the defendant, at the time the pile fell, was engaged in the undertaking of constructing falsework to support the ironwork of the bridge during the progress of reconstruction? A. Yes.

"(82) State whether or not, in constructing such falsework, stationary engines were used for the purpose of raising and lowering timbers and on stationary and barge pile driver? A. Yes.

"(83) State whether or not Miller was employed to do any necessary work done on the stationary engines used by the defendant, which required attention from a machinist? A. Yes."

"(85) If you answer question No. 83 in the affirmative, state what, if anything, in addition to work as a machinist, Miller was employed to do. A. Run an engine."

"(106) State whether or not, in the course of practice on that work, men in one crew were interchanged with men in others, in the judgment of the superintendent? A. Yes."

"(84) State whether or not the work which Miller took service to perform would require him to work in and around the places where other men engaged in putting up the falsework were at work? A. Yes.

"(85) State whether or not the work which Miller took service to perform required him to work in and about places where negligence on the part of other employés engaged in putting in the falsework might result in injury to him? A. Yes."

"(24) Was the line of service in which said William J. Miller was employed that of a machinist, to repair and keep in order the hoisting engines and machinery used by the defendant company in the prosecution of its work? A. Yes.

"(25) Was the duty and work in which the barge crew was employed at the time of the

injury to said Miller that of operating the machinery upon the barge, and hoisting and driving in the bed of the Missouri river? A. Yes."

"(14) At the time said William I. Miller, deceased, received the injuries from which he died, was he engaged, as a machinist, in repairing a hoisting engine upon the floor of defendant's bridge? A. Yes."

"(1) Did a pile fall in the direction of and toward William I. Miller, deceased, at the time he received the injury from which he died? A. Yes."

"(15) If you answer question 1 'Yes,' or in the affirmative, then was such pile being raised about ten (10) feet north and east from where said Miller was then at work? A. Yes.

"(16) If you answer question 1 'Yes,' or in the affirmative, then was such pile being raised from a barge or boat floating on the river? A. Yes.

"(17) If you answer question 16 'Yes,' or in the affirmative, then was such barge or boat about twenty feet lower elevation than the floor of the defendant's bridge? A. Yes.

"(18) If you answer question 16 'Yes,' or in the affirmative, then was such pile raised until the top was about thirty feet higher than the floor of defendant's bridge? A. Yes."

"(39) State whether or not the engine upon which Miller was working was located about three (3) feet from the north side of the bridge? A. Yes."

"(79) State whether or not Miller was working at the time on the engine within ten (10) or fifteen (15) feet of the pile driver? A. Yes.

"(80) State whether or not Miller, at the time the pile fell, was working where he could see the operations upon the pile driver? A. Yes."

These facts are sufficient to enable the court to draw the proper conclusion of law as to the relation of the deceased and the chainman of the pile-driver crew.

Each party to the suit sought the legal opinion of the jury upon certain phases of the controversy. To the plaintiff the jury responded as follows:

"Were said William I. Miller, deceased, at the time he received the injury from which he died, and the barge or boat crew employed in raising the pile, engaged in different lines of work or employment? A. Yes. "Were the work and duties of said William I. Miller such as to bring him into habitual association with said barge crew, so that he might exercise an influence upon said barge crew promotive of proper care and caution, and the line of employment of said barge crew such that they might exercise an influence upon said Miller promotive of proper care and caution? A. No.

"At the time said Miller received the injuries from which he died, was he working in a different line of duty and service from

This court can say whether the repair of engines is a different kind of service from pile driving, and whether, from the nature of their duties, and the situations of the machinist and the chainman, they might, in their work, exercise an influence upon each other promotive of care and caution, and whether they were both engaged in a common enterprise, as well as the jury; and the questions and answers last presented are reproduced here chiefly for the purpose of elucidating the theories of counsel respecting the rules of law applicable to the case. From these questions and answers it is apparent the plaintiff relies upon the so-called departmental and consociation limitations of the fellow servant rule acknowledged in certain jurisdictions, while the position of the defendant is that identity of department and consociation of duties are not tests of the master's liabiity, but that, if the injured and the injuring servants work under the control of a common master in a general employment directed to a common end, the master is not liable, provided, of course, the neglected duty be not one which the master himself must perform.

There is much force in the defendant's argument that the master is not liable in this case even under the consociation theory of the relation between the servants. Miller's duties called him into the most intimate association with the other men. The conduct of each was at all times likely to affect the others. If his tools should fly from his hand, or a separated part of the machinery he was repairing should escape him, they might strike a member of the barge crew. If a pile were unskillfully handled, it might strike him. Trucking crews passing and repassing with tools, machinery, and materials might injure him, and carelessness in his conduct might injure them. When he was injured he was within 10 or 15 feet of the barge crew, and in plain view of the pile, which hung almost over him, and his duties constantly exposed him to such perils. The nature of his employment was such that he might have been repairing or even running the engine used for hoisting the pile which fell at the time it fell. He was almost as intimately related to the chainman as the engineer upon the barge. In states where the consociation doctrine prevails, it is held that the length of time the different servants may have been at work is not material, and that all of them need not be engaged to do work precisely identical in kind. "It is

true, they might have been fellow servants in the strictest sense, and yet they might not have been associated an hour before the happening of the injury. What is meant is, if the parties continue to be engaged in a common service, they will be habitually associated, so that they may exercise any influence over each other promotive of common safety." Chicago & Alton R. Co. v. Hoyt, 122 Ill. 369, 375, 12 N. E. 225, 227. "The fact that an employé was only temporarily engaged at a particular task, and that he had no acquaintance with his colaborers, does not operate to bar the application of the doctrine of fellow servants."

Klees

v. C. & E. I. R. Co., 68 Ill. App. 244. "It is an error to suppose that a force of men cannot be engaged in a common service unless all are continuously working at the same time, and engaged in doing precisely the same kind of work. It is sufficient if all are actually employed by the same master, and that the work of each, whatever it may be, has for its immediate object a common end or purpose, sought to be accomplished by the united efforts of all. The skill of a carpenter, blacksmith, or other mechanic might be very useful in removing a wreck, and, when thus working together in such a service, though each one in his own particular way, they are all, within the meaning of the rule, engaged in a common employment." Abend v. T. H. & I. R. Co., 111 Ill. 202, 211, 53 Am. Rep. 616. If this be true, all the conditions of the consociation doctrine are fairly satisfied in this case, since the findings of fact disclose a very necessary dependence of the machinist and the pile drivers upon each other's care and vigilance for mutual safety, and abundant opportunity for the operation of reciprocal influences conducive to their common welfare. It is not the purpose of the court, however, to rest its decision upon this ground, if another and more fundamental one be discoverable. If the decisions of this court show that it has, in the main, consistently adhered to a logically defensible theory respecting the liability of a master for an injury to one of his servants caused by the negligence of another, those decisions, and the theory upon which they proceed, ought to be followed, unless great injustice would result from doing SO. To discover the true position of the court upon this subject, an examination of its leading and best-considered cases is necessary.

In the early case of Dow v. Kansas Pac. Ry. Co., 8 Kan. 642, it was held that a conductor and a brakeman of the same railway train are fellow servants. The court was greatly impressed with the duty of railroad companies to make their service safe to the traveling public, and, believing that the watchfulness over each other of officers and agents charged with the running of trains would tend to promote the general welfare, it apparently undertook to encourage such

conduct by preventing a recovery against the master in case one of those servants should injure another. In the opinion it is said: "The paramount object of nearly all the rules of law concerning the operation of railroads is security to the person and lives of human beings, and particularly security to the persons of passengers being transported on the trains from one portion of the country to another; and, in order to insure this security, the railroad companies are held to the strictest accountability with regard to passengers. They must use the utmost care and skill within the scope of human foresight or human knowledge practicable. They are liable to passengers for the slightest negligence on the part of their agents or servants. But this is not all. A rule must be adopted that will insure the most skillful and trustworthy agents and servants.

* * *

But it is also the policy of the law to make it to the interest of every servant or agent of the railroad company to see that every other servant or agent of the company is competent and trustworthy. This may be done by making it to the interest of every employé of the railway company to inform the company of every act of any other employé showing a want of skill, care, or competency. The employés of the railway company have the best opportunity of knowing the competency and trustworthiness of the other employés of such company, and, if they do not think the other employés are competent or careful, let them either inform the company, so that the incompetent or negligent employés may be discharged, or themselves quit the service of the company. Who can know better whether a conductor of a railroad train is competent and trustworthy than the brakeman of the same train? As to passengers, and generally as to any person not in the employ of the company, the negligence of any agent or servant of the company is the negligence of the company. As to such persons even the negligence of the brakeman is the negligence of the company. But as between co-employés no one is peculiarly the representative of the company more than another, except, perhaps, the higher officer whose duty it is to employ and discharge the other employés, and therefore as between co-employés the negligence of none but the higher officers aforesaid is the negligence of the company. If such higher officers are not careful and diligent in employing and discharging or retaining the other employés, then the company is responsible to the other employés for the negligence of such employés as may have been employed or retained without proper care." From these extracts it is plain, however, that the court was not attempting to establish a general foundation for the law of co-service. Finding a peculiar state of facts to which the reasoning of the opinion would apply, it drew a limited conclusion, without discussing the bearing of the argu

ment upon broader subjects. It was sufficient to make the interest of the public the controlling consideration in determining who should be liable for the negligent infliction of injuries upon each other by persons charged with the running of trains. As far as it went, the opinion was an affirmation of the views of Chief Justice Shaw in the epochmaking case of Farwell v. Boston & Worcester Railroad Corporation, 4 Metc. (Mass.) 49, 58, 59, 38 Am. Dec. 339. In that case it is said: "If we look from considerations of justice to those of policy, they will strongly lead to the same conclusion. In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all parties concerned. This is, in truth, the basis on which implied promises are raised; being duties legally inferred from a consideration of what is best adapted to promote the benefit of all persons concerned, under given circumstances. To take the well-known and familiar cases already cited, a common carrier, without regard to actual fault or neglect in himself or his servants, is made liable for all losses of goods confided to him for carriage, except those caused by the act of God or of a public enemy, because he can best guard them against all minor dangers. * * The liability of passenger carriers is founded on similar considerations. They are held to the strictest responsibility for care, vigilance, and skill on the part of themselves and all persons employed by them, and they are paid accordingly. The rule is founded on the expediency of throwing the risk upon those who can best guard against it. Story on Bailments, § 590 et seq. We are of opinion that these considerations apply strongly to the case in question. Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service if the common employer will not take such precaution and employ such agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrongdoer." This interest of a portion of the public in a particular employment, however, cannot furnish a sound basis from

which to determine the liability of masters generally. In multitudes of cases employés may not be able to exert any appreciable influence upon each other, and yet the risk of injury from a co-servant be one clearly within the comprehension of the parties when the relation of master and servant was formed. In the Farwell Case the effect of the consociation of employés, and their separation into departments, upon the liability of the master, was reasoned out as follows: "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 over the conduct of the other, and thus to some extent provide for his own 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 control or influence the conduct of another. But we think this is founded upon a supposed distinction on which 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 in the same or different departments. In a blacksmith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk, several may be at work on the same piece of cordage at the same time, at many hundred feet distant from each other and beyond the reach of sight and voice, and yet acting together. Besides, it appears to us that the argument rests upon 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