TAFT, Circuit Judge
(after stating the facts as above). . The charges of negligence contained in the second amended petition are: First, that the receiver permitted the operation of the caboose over a defective track, and, secondly, over a switch in a dangerous and defective construction; third, that the accident occurred through the negligence of the yard master of the defendant in the operation of the locomotive, the yard master being a vice principal, and representing the receiver; fourth, that the yard master, even if a fellow servant, was incompetent, and unfit, that the receiver was aware of his unfitness and incompetence, and that this caused the accident. There is no evidence to show that the track was defective. There is no evidence to show that the switch was of a dangerous construction and condition. There is evidence to show that the switch was not sufficiently oiled, but ihe master finds, and the evidence supports Mm in the view, that, even if the switch had been oiled, the accident would have happened. From this it follows, of course, that the injury was not caused by the failure to oil. Third, it is said that the accident was caused by the negligence of the yard master, and that he was a vice principal, and represented the defendant in what he did. The master found that the yard master was a vice principal. I cannot agree in this conclusion. It is true that the evidence shows that the y'ard master had complete control of the yard; he was made responsible for its condition; that lie was authorized to employ and discharge men, and that he directed the incoming and starting of trains. 1 do not think, however, that under the principles laid down in the Baugh Case, 13 Sup. Ct. 914, this would put him at the head of one of the departments of the railroad. The nature of his duties was not at -all unlike that of a station agent, only that he had more men under him. He was subject to the orders of the superintendent, whose office was at the station in Somerset. He was subordinate to the train master. It would serve no good purpose to discuss at length or restate the grounds of the rule which must control the federal courts in determining the question whether an employé is a fellow servant or not. They have been laid down with elaboration in the Baugh Case, already referred to, and have been reaffirmed from time to time by the supreme court in numerous cases. Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843; Oakes v. Mase, 165 U. S. 363, 17 Sup. Ct. 345; Railroad Co. v. Poirier, 167 U. S. 48, 17 Sup. Ct. 741; Mining Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40. In Grady v. Railway Co., 34 C. C. A. 494, 92 Fed. 491, decided by the court of appeals of this circuit March 7, 1889, it was held that the foreman in charge of the freight-car repair shops, the immediate subordinate of the [250]*250master ear builder, who had control of the work of car repairs, — a branch of the mechanical department of the road, at the head of which was the master mechanic, — was a fellow servant of the workman who, it was charged, was injured through his negligence. In that case the court said:
“The Baugh Case has set such limits to the vice-principal doctrine that it is exceedingly difficult to suggest a position outside of those of the superintendents or acting superintendents of the various great departments of the road, the incumbent of which is not to be regarded as a fellow servant of all the other employes. The Ross Case, 112 U. S. 377, 5 Sup. Ct. 184, it is said, has never been expressly overruled. This is true, but it has been so limited to its peculiar facts as tó mate it of no force as authority in any case where those facts are not exactly presented.”
The exception to the finding of the master that Cook was not a fellow servant of Gray is sustained.
The next charge of negligence is based on the employment of Cook as a yard master when he was known to be incompetent. There is not the slightest evidence that Cook was not a good yard master. But it is said that he was an incompetent engineer. It is sufficient answer to say that he was not employed as engineer, and, if he discharged duties not assigned to him, the company is not responsible for this breach of duty unless he was a vice principal. —as he was not. But the argument is, and it is supported by the conclusion of the master, that Cook had authority to employ engineers, and in doing so he was discharging a personal duty of the receiver, owing to Gray, to use due care in the selection of such engineer; that when he assumed to act as engineer he was employing himself; that he knew he was incompetent, and, as he represented the company in the act of employing, the company was responsible for the result of such employment. The first objection to this position is that there is no allegation in the petition under which it can be maintained, and the second is that the evidence does not sustain the conclusion that Cook was not competent to run an engine in the yards. I have read the evidence on the question of the competency of the yard master both as a yard master and as an engineer, and I do not think that it established that he did not have sufficient knowledge to run a switch engine in the switching yard. He was undoubtedly reckless in the case before us, but a single instance of recklessness does not prove incompetency. The evidence to prove his incompetency is of a negative character, and most unsatisfactory, and it does not, it seems to me, contradict in any material way the direct and affirmative evidence that he did not know enough about an engine to run it in the yards. The exceptions to the finding of the master on these charges of negligence are sustained.
I think, however, that there is another ground of negligence clearly established by the evidence, which the court, in order to do justice, ought not to ignore, and ought to give the petitioner an opportunity to introduce into her petition by amendment. The evidence and the findings of the master make it clear that the real reason for this accident is to be found in an attempt of the yard master, [251]*251and the acquiescence of the other employés who were with him^ in that attempt, to run through an open switch on the supposition vhat the switch was intended to work automatically at all times, and to save the necessity of turning it by hand. It is further clearly shown by the evidence for the receiver that the switch had not such purpose'. The switch was placed where it was with the hope that in cases of accident when cars ran through an open switch the breaking of the switch points would he avoided by automatic action in the switch itself. It was not intended that employés should deliberately run through an open switch, relying on the operation of the automatic device. It was not a labor saving machine. It was only to he used in an emergency. It was like an emergency brake in an elevator, or a device for breaking the fall of the cab at: the bottom of the elevator in case the cable breaks. Such devices are not intended for constant use, and a servant who pats them to such use cannot complain if they do not always operate. They are safety appliances to be used in case of accident, and cannot be relied on in the regular course.
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TAFT, Circuit Judge
(after stating the facts as above). . The charges of negligence contained in the second amended petition are: First, that the receiver permitted the operation of the caboose over a defective track, and, secondly, over a switch in a dangerous and defective construction; third, that the accident occurred through the negligence of the yard master of the defendant in the operation of the locomotive, the yard master being a vice principal, and representing the receiver; fourth, that the yard master, even if a fellow servant, was incompetent, and unfit, that the receiver was aware of his unfitness and incompetence, and that this caused the accident. There is no evidence to show that the track was defective. There is no evidence to show that the switch was of a dangerous construction and condition. There is evidence to show that the switch was not sufficiently oiled, but ihe master finds, and the evidence supports Mm in the view, that, even if the switch had been oiled, the accident would have happened. From this it follows, of course, that the injury was not caused by the failure to oil. Third, it is said that the accident was caused by the negligence of the yard master, and that he was a vice principal, and represented the defendant in what he did. The master found that the yard master was a vice principal. I cannot agree in this conclusion. It is true that the evidence shows that the y'ard master had complete control of the yard; he was made responsible for its condition; that lie was authorized to employ and discharge men, and that he directed the incoming and starting of trains. 1 do not think, however, that under the principles laid down in the Baugh Case, 13 Sup. Ct. 914, this would put him at the head of one of the departments of the railroad. The nature of his duties was not at -all unlike that of a station agent, only that he had more men under him. He was subject to the orders of the superintendent, whose office was at the station in Somerset. He was subordinate to the train master. It would serve no good purpose to discuss at length or restate the grounds of the rule which must control the federal courts in determining the question whether an employé is a fellow servant or not. They have been laid down with elaboration in the Baugh Case, already referred to, and have been reaffirmed from time to time by the supreme court in numerous cases. Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843; Oakes v. Mase, 165 U. S. 363, 17 Sup. Ct. 345; Railroad Co. v. Poirier, 167 U. S. 48, 17 Sup. Ct. 741; Mining Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40. In Grady v. Railway Co., 34 C. C. A. 494, 92 Fed. 491, decided by the court of appeals of this circuit March 7, 1889, it was held that the foreman in charge of the freight-car repair shops, the immediate subordinate of the [250]*250master ear builder, who had control of the work of car repairs, — a branch of the mechanical department of the road, at the head of which was the master mechanic, — was a fellow servant of the workman who, it was charged, was injured through his negligence. In that case the court said:
“The Baugh Case has set such limits to the vice-principal doctrine that it is exceedingly difficult to suggest a position outside of those of the superintendents or acting superintendents of the various great departments of the road, the incumbent of which is not to be regarded as a fellow servant of all the other employes. The Ross Case, 112 U. S. 377, 5 Sup. Ct. 184, it is said, has never been expressly overruled. This is true, but it has been so limited to its peculiar facts as tó mate it of no force as authority in any case where those facts are not exactly presented.”
The exception to the finding of the master that Cook was not a fellow servant of Gray is sustained.
The next charge of negligence is based on the employment of Cook as a yard master when he was known to be incompetent. There is not the slightest evidence that Cook was not a good yard master. But it is said that he was an incompetent engineer. It is sufficient answer to say that he was not employed as engineer, and, if he discharged duties not assigned to him, the company is not responsible for this breach of duty unless he was a vice principal. —as he was not. But the argument is, and it is supported by the conclusion of the master, that Cook had authority to employ engineers, and in doing so he was discharging a personal duty of the receiver, owing to Gray, to use due care in the selection of such engineer; that when he assumed to act as engineer he was employing himself; that he knew he was incompetent, and, as he represented the company in the act of employing, the company was responsible for the result of such employment. The first objection to this position is that there is no allegation in the petition under which it can be maintained, and the second is that the evidence does not sustain the conclusion that Cook was not competent to run an engine in the yards. I have read the evidence on the question of the competency of the yard master both as a yard master and as an engineer, and I do not think that it established that he did not have sufficient knowledge to run a switch engine in the switching yard. He was undoubtedly reckless in the case before us, but a single instance of recklessness does not prove incompetency. The evidence to prove his incompetency is of a negative character, and most unsatisfactory, and it does not, it seems to me, contradict in any material way the direct and affirmative evidence that he did not know enough about an engine to run it in the yards. The exceptions to the finding of the master on these charges of negligence are sustained.
I think, however, that there is another ground of negligence clearly established by the evidence, which the court, in order to do justice, ought not to ignore, and ought to give the petitioner an opportunity to introduce into her petition by amendment. The evidence and the findings of the master make it clear that the real reason for this accident is to be found in an attempt of the yard master, [251]*251and the acquiescence of the other employés who were with him^ in that attempt, to run through an open switch on the supposition vhat the switch was intended to work automatically at all times, and to save the necessity of turning it by hand. It is further clearly shown by the evidence for the receiver that the switch had not such purpose'. The switch was placed where it was with the hope that in cases of accident when cars ran through an open switch the breaking of the switch points would he avoided by automatic action in the switch itself. It was not intended that employés should deliberately run through an open switch, relying on the operation of the automatic device. It was not a labor saving machine. It was only to he used in an emergency. It was like an emergency brake in an elevator, or a device for breaking the fall of the cab at: the bottom of the elevator in case the cable breaks. Such devices are not intended for constant use, and a servant who pats them to such use cannot complain if they do not always operate. They are safety appliances to be used in case of accident, and cannot be relied on in the regular course. It was a personal duty of the company to plaintiff’s decedent, as one of its employés, to communicate to him and to all other employes using the switch the proper limitation upon its use. This was not done. Had the yard master been informed that the automatic device in the switch was only to be depended upon when it could not he helped, hut that in all ordinary circumstances it was to he used as an ordinary hand switch, and had he communicated these rules for ihe use of the switch lo iiis subordinates, it is clear that this accident would not have happened. Gray, standing upon the front platform of the caboose, seeing the open switch, would undoubtedly have signaled to (look, who was running the engine, to stop until the switch could be turned, (look would have stopped, and in that case there would have been no collision. It is a personal duty owing by the master to the servant in a dangerous and complicated business to prescribe rules sufficient for its orderly and safe management, and to keep his servants informed of those rules, so far as they may be needful for their guidance. Railroad Co. v. Camp, 31 U. S. App. 213, 13 C. C. A. 233, and 65 Fed. 952; Slater v. Jewett, 85 N. Y. 61; Shear. & R. Neg. (5th Ed.) § 202. It is further the personal duty of the master to avoid exposing his servants to unusual risks by giving warning to them of the perils to which they may be exposed in the use of machinery, where the servant has not the same opportunity to know the dangers of the machinery that the master has. In the present ease this switch had been pni in place but a few days before, and the scope for its use had certainly not been properly explained to its employés. They had boon given to understand by the yard master that it was a labor-saving device, instead of which it was only an emergency switch. To this failure on the part of the receiver or his superintendent the accident is directly due. It: would prop erly have been the yard master’s duty to communicate to the cmpioyés the proper use to which the automatic part of this switch could be devoted. If he failed in that duty, he failed in a personal duly directly owing from the receiver to petitioner’s decedent, for [252]*252which the receiver can be held liable. It is not that the switch was defective, but only that its mode of use, resulting from a failure of the receiver or his agents properly to regulate it, was negligent. In Smith v. Baker [1891] App. Cas. 325, the plaintiff was employed to drill holes in a rock near a crane worked by men in another department of his employer’s work. The crane was used for lifting stones which were sometimes swung over plaintiff’s head without warning. During the work a stone so swung fell on the plaintiff, and- injured him. This was held by the house of lords to be a defective system of work, rendering the employer liable in the event of injury caused thereby. “I think,” said Lord Halsbury (page 339), “the cases cited at yonr lordships’ bar of Sword v. Cameron, 1 Sc. Sess. Cas. (2d Ser.) 493, and Coal Co. v. McGuire, 3 Macq. 300, established conclusively the point for which they were cited, — that a negligent system or a negligent mode of using perfectly sound machinery may make the employer liable.”
The remaining exceptions to the report are overruled. The petitioner is given leave to file an amendment to her amended petition in accordance with the suggestion herein, and upon the filing of such amendment a decree will be entered finding in favor of the petitioner in the amount reported by the master, to wit, $8,000.