
    MASTER AND SERVANT.
    [Knox (5th) Circuit Court,
    October 12, 1906.]
    Donahue, McCarty and Taggart, JJ.
    J. B. Foote Foundry Co. v. James A. Young.
    Employee wot Liable fob Negligence of Sekvants of Equal Rank.
    An employe of a foundry company who, while responding to a request or order from another to assist in a certain kind of Work, is injured by reason of the negligence of the other servant cannot recover for such injuries without first showing that the servant ordering such assistance has been placed, by his employer, in a position of control Ur authority over 'him. 1
    [For other cases in point, see 6 Cyc. Dig,, “Master and .Servant,” §§ 292-437. —Ed.]
    [Syllabus approved by the court.]
    ERROR to Knox common pleas court.
    L. C. Stillwell, for plaintiff in error.
    F. V. Owen, for defendant in error.
   PER CURIAM.

Tbe defendant in- error obtained a judgment against the plaintiff in error in an action wherein he claimed that he had been injured in consequence of the negligence of the plaintiff in error and proceedings in error are now prosecuted to reverse that judgment.

It is contended that the verdict of the jury is manifestly against the weight of the evidence, and is contrary to law. These grounds were- set out in a motion for a new trial, and are carried into the petition in error, and require us to investigate this entire record.

It appears that the plaintiff was employed by the defendant to work in its paint shop, and that a few days after entering the employment, he was in a portion of the defendant’s shop where a machine known as a “rattler” was being operated by one of the defendant’s servants, Hofleek; that a belt, which in the operation of said shop was to 'be placed 'upon a pulley, which would start and operate the machine known as a “rattler,” was not upon said pulley, and that the plaintiff attempted to place the same thereon so as to start the machine, and that while engaged in this his arm- was caught, and so severely injured, that it required its amputation. He says it was in consequence of the negligence of the defendant and of his servant, Hofleek. It is his claim that the servant, Hofleek, was his superior, and that in performing the work in and about the pulley and belt, he was acting in obedience to tbe direction and orders of flofleek, wbo stood in the capacity of vice principal to defendant.

We may go to the extent of assuming • that the record.shows that Hofleck did order and direct the plaintiff to assist in adjusting said belt upon the pulley, but we simply assume this situation for the purpose of this opinion. We do not, by any means, so decide. But assuming that that situation existed, is there any proof in this record that Ifofleek stood in the relation of a vice principal to the defendant, or was he simply a fellow servant? If he was a fellow servant, without authority to direct, and the record so shows, then the verdict is not sustained by sufficient evidence and is contrary to law. If he stood in the relation of a vice principal or superior, and directed • and ordered the plaintiff to assist, and the record was otherwise sufficient, then the verdict should be sustained.

In the case of Kelley Island Lime & Transport Co. v. Pachuta, 69 Ohio St. 462, 468 [69 N. E. Rep. 988; 100 Am. St. Rep. 706], the Supreme Court gives a test to be applied in determining whether a particular servant is a vice principal or a fellow servant:

“In Ohio the test to be applied in determining whether a particular servant is a vice principal or a fellow servant, except in certain cases where the rule has been modified by statute, is whether or not he has been placed by his employer in a position of control or authority over his eoemploye.”

That this, rather than the nature and character of the work being done, is the controlling and governing test in this state is shown by the following authorities: Clev. C. & C. Ry. v. Keary, 3 Ohio St. 201; Pitts. Ft. W. & C. Ry. v. Lewis, 33 Ohio St. 196; Pitts. C. & St. L. Ry. v. Ranney, 37 Ohio St. 665.

In Clev. C. & C. Ry. v. Keary, supra, we find the following syllabus:

“But a principal is not liable to one servant in his employ for injuries resulting from the carelessness of another servant, when both are engaged in a common service, and no power or control is given to the one over the other. They stand as equals to each other, and are alone liable for the injuries they may occasion.”

The circuit court. of Cuyahoga county, in the case of Toomey v. Stamp Co. 11 Circ. Dec. 216 (20 R. 183), has also defined what constitutes a fellow servant:

“It is the rule in Ohio that the master is liable for injury to one servant from the negligence of another, where both are engaged in a common employment and one is given control over the other. Mere working together where the advice of one is accepted by another, and where by superior knowledge one gives all the advice and. direction for the work, is not alone sufficient to charge the master with the negligence of either by which the other is injured, but such direction and authority must be by the authority given by the master or some one standing in his place. ’ ’

We have carefully gone over this record and we fail to find' any place in the record where the servant, Hofleck, was given any authority or power to control and direct the work of the plaintiif in error herein. The most that we find from the record is, that he requested the assistance of other servants of the plaintiif in error and that that assistance was given, but that the master had ever conferred any authority or power, on him to control or direct this work, or any other work, we fail to find it set out m the record or shown by the proof. This being so, even if the defendant in error was directed by the person Hofleck to do this work, it does not appear that it was done under the direction or authority of the master. That being so, the record fails to show that Hofleck stood in the relation of a vice principal' or superior and the engaging in this work by the defendant in error was not in consequence of any act or direction of the master.

We have, for the purposes of this opinion, assumed every element necessary for the defendant in error to recover, and all that the defendant in error could claim in his own behalf up to the point we have been discussing, but as this is essential and necessary to be shown in the case and is not shown, it is our judgment that the verdict of the jury is against the manifest weight of the evidence and is contrary to 1 the law of the ease. Therefore, the motion for a new trial should have been granted, and the court was in error in overruling said motion. For this error the judgment of the court of common pleas will be reversed, with exceptions, and the cause remanded to the court of common pleas for further proceedings according to law. Judgment will be entered in favor of plaintiff in error for the costs in this court.  