was riding in the full exercise of the rights given by this rule, or whether he was on the car in the performance of his duties as a servant of the defendant, so as to make him at that moment a fellow-servant of the motorman. The bill of exceptions answers this question in its statement, as follows: His work for the defendant "consisted of a certain number of trips at fixed and regular times each day. At the time of the accident he was not on actual duty, but at about noon had finished his work of that morning, got on the first car that came along. and was going home to dinner. That he took no part in the manage. ment of this car. That he usually had about three hours, between twelve and three o'clock, during which he was not on actual duty, and his time was his own, and he usually returned home about noon to dinner." The car on which he was riding was not on the line on which he was employed. At the time of the accident he did not stand in the relation of a servant to the defendant. His time was his own, and he owed the defendant no duties until the time arrived for resuming his work. It was no part of his duty to the defendant, as a servant, to take the car on which he was riding and go to a particular place for his dinner. He might go where he pleased and when he pleased during the interval before coming back to his work. This case is different in this particular from cases in which the plaintiff was riding in the line of his duty in the course of his employment. His rights were the same as if, after finishing his day's service, he had taken a car in the evening to visit a friend or to do any business of his own. The fact that he had been in the defendant's service during the day would not make him a fellow-servant with the motorman while riding in the evening under the rule, any more than if he had been a policeman or a news dealer. Exceptions sustained.

VALIDITY OF RE

EMPLOYERS' LIABILITY-RAILROAD COMPANIES LEASE OF CLAIM FOR DAMAGES-Great Northern Railway Co. v. Kasischke, 104 Federal Reporter, page 440.-In the United States circuit court for the district of North Dakota a judgment was rendered in favor of Carl Kasischke, who had brought suit against the abovenamed railway company to recover damages for injuries incurred by him while in its employ. The defendant company sued out a writ of error and carried the case to the United States circuit court of appeals, which rendered its decision October 8, 1900, and affirmed the judgment of the lower court. The evidence showed that Kasischke had signed a release of all claims for damages after his injury, and this release was offered as a defense to his suit by the railway company. He claimed, however, that said release was obtained from him by fraud and misrepresentation, and was therefore void and of no effect.

Upon this point Circuit Judge Thayer, who delivered the opinion of the court of appeals, spoke as follows:

It is further urged by the defendant company that the plaintiff on December 12, 1898, for a valuable consideration, released it from all

causes of action then existing, and that this action is barred by the release, which is in the following form:

66

Form 2704. Great Northern Railway Line. Great Northern Railway Company. Release of Damages.

Know all men by these presents, that in consideration of the sum of medical attention to me in hand paid by the Great Northern Railway Company, the receipt whereof is hereby acknowledged, I have released, acquitted, and discharged, and by these presents do release, acquit, and forever discharge, the said railway company, its successors and assigns, of and from any and all cause or causes of action, costs, charges, claim, or demand, of whatever name or nature, in any manner arising or to grow out of personal injuries received by me at Breckenridge on December 6, 1898, while assisting in coaling engine No. 200. I slipped and fell into tank pit, and coal from pocket fell on me, whereby I was severely injured. The receipt of said sum of medical attention dollars being hereby acknowledged to be in full payment, satisfaction, and discharge of any and all such cause or causes of action, costs, charges, and demand arising or growing out of said personal injuries received as aforesaid.

"In witness whereof, I have hereunto set my hand and seal this 12th day of December, A. D. 1898.

"In presence of—

J. C. NOLAN.

"E. ABIG."

"CARL KASISCHKE. [SEAL.]

Along the margin of this release was written the following statement, but it was unsigned.

This release read and explained to me before signature, and releases all claims for personal injury to date."

With respect to this document the plaintiff testified, in substance, that on December 12, 1898, five days after the accident, he was sent for to come to the roundhouse; that he was somewhat affected by dizziness at that time, as a result of the accident; that on reaching the office in the roundhouse he was shown a paper by the division master mechanic, J. C. Nolan, and was asked if he understood it; that he told Nolan at the time that he could neither read nor write English; that Nolan then read the paper to him, but that he did not understand it fully or accurately; that, in the course of the conversation which ensued about the paper, he told Nolan that his doctor had asked him that morning for a dollar, and that Nolan replied, "The company will pay your doctor bill and give you a light job. He further testified, in

substance, that Nolan did not explain to him that the document was intended as a release of his claim for damages on account of the injury that he had sustained; that he did not understand it to be an agreement of that nature, but did suppose that it was an engagement on the company's part to pay his doctor and give him a light job, because Nolan said they would do so when he was asked to sign the document. He also testified that the interview with Nolan, when the paper was signed, lasted only five or ten minutes; that no money was paid to him at that time or afterwards; that nothing was said about paying him any money; that he ascertained the real purport of the writing after it was signed, through a conversation with some of his fellow-workmen,

and that he would not have signed the paper had he known it to be a release of all claims against the company for being injured. The evidence for the defendant with respect to this transaction was, as a matter of course, entirely different, and tended to establish that the release in question was not only read by Nolan, but that the object thereof was fully explained to the plaintiff before it was signed, and that he executed it with a full knowledge of the language employed, even if he did not comprehend its legal effect.

It was clearly the duty of the master mechanic, when he was informed that the plaintiff could not read or write English, and that he relied upon him for an explanation of the contents of the paper, to explain its purport and the object of asking him to sign it, and to do so fully, in language which the plaintiff could comprehend. Because Nolan represented the defendant company in the transaction, it was his duty to exercise special care in explaining its contents to the plaintiff. It was likewise the plaintiff's duty to make reasonable efforts to obtain a correct understanding of the document before he signed it, and not to sign it until he had reasonable grounds for believing that he did understand it. We think, however, that the plaintiff had a right to rely upon Nolan for an explanation of the meaning and effect of the paper, inasmuch as he assumed the duty of interpreting and explaining it, and that the plaintiff was not bound to seek other advice on the subject. The result is that if Nolan, by his statements or conduct, misled the plaintiff in any manner as to the effect of the instrument and induced him to believe that it was merely a writing by which he was to have his doctor's bill paid and get a light job, and that it was not in fact a release of his cause of action, it ought not to stand or be accepted in the present action as a bar to a recovery.

The contention of the defendant company is that there was no evidence whatsoever which tended in any way to impeach the validity of the release, and that the court should have so declared. But, in the light of what has been said, we are unable to assent to that proposition. In the first place, the consideration recited in the release as moving from the defendant company, to wit, "medical attention," was trifling in comparison with the permanent bodily injury which the plaintiff appears to have sustained; and this in itself raises a suspicion of unfairness, and gives color to the claim that the plaintiff was in some way deceived, and did not understand that he was releasing his right of action. Aside from this view are the positive statements of the plaintiff that he was not advised that the instrument was intended as a release of his claim for damages; that he would not have signed it had he understood such to be the object of asking his signature; that statements or representations were made by Nolan, which are not embodied in the document, that gave him a different understanding of its purpose; and the obvious facts that the plaintiff was to some extent subject to the influence of his superior officer, and had a very imperfect knowledge of the language in which the paper was written, and in which the negotiations leading to its signature were conducted. These considerations, in our opinion, warranted the trial court in permitting the jury to determine whether the plaintiff had consciously released his right of action, or whether his signature to the release had been obtained by conduct or representations on the part of the company's agent which amounted to deceit.

While it is essential to the public welfare that the integrity of written contracts should be maintained, by requiring the parties thereto, before they sign the same, to exercise reasonable diligence in acquiring a correct knowledge of their meaning and effect, yet it is equally important that the rule of law in this respect should not be applied with such strictness as will enable persons who are so disposed to easily overreach those who are unlettered and unwary, and deprive them of valuable rights. In this instance we are satisfied that it was the function of the jury to decide whether the plaintiff was deceived as to the contents of the release, and also to determine whether he was guilty of any such negligence in executing it, under the circumstances disclosed by the proof, as should estop him from contesting its validity. The judgment below is accordingly affirmed.

EMPLOYERS' LIABILITY-VICE-PRINCIPAL-NEGLIGENCE OF FELLOWSERVANT-Small v. Allington and Curtis Manufacturing Co., 48 Atlantic Reporter, page 177.-Albert E. Small brought suit against the above-named company to recover damages for personal injuries incurred while in its employ and alleged to have been caused by the defendant's negligence. In the supreme judicial court in Cumberland County, Me., a verdict of $500 damages was given for the plaintiff. The defendant company moved for a new trial and a hearing was had before the full bench of the supreme judicial court in law term. Said court rendered its decision January 29, 1901, and granted the motion. From the opinion of the court, which shows the facts in the case and was delivered by Chief Justice Wiswell, the following is quoted:

At the time of the accident the plaintiff was in the employ of the defendant, and was engaged with others in the work of hoisting and placing in position a large metal appliance to be used for the purpose of collecting sawdust and shavings, and known as a "dust collector." The defendant, a corporation doing business in the State of Michigan, had made a contract with the Williams Manufacturing Company, of Portland, to furnish for the latter this dust collector, and to place the same in position on top of the boiler house of its plant. This appliance had arrived in Portland, the framework within which it was to be placed had been constructed by the manufacturing company as provided in the contract, and the plaintiff and other employees of the defendant had commenced hoisting the collector by means of ropes and blocks, sometimes called a "double fall and tackle." Just before the accident the collector had been hoisted nearly, but not quite, far enough, when the two blocks came together, and it became necessary to unfasten the tackle and rearrange the blocks so that the additional hoisting could be accomplished. To do this, it was necessary to temporarily secure the collector in place while the fall and tackle was unfastened and rearranged.

The plaintiff and other servants of the defendant, fellow-servants of the plaintiff, had placed planks, blocks, and props under the collector for this purpose, and the plaintiff was on top of the collector, unfastening the tackle, when it fell a few feet, and the plaintiff was thrown to

the roof of the boiler house, sustaining some, but not very serious, injury.

There is no intimation that any of the appliances furnished by the defendant were insufficient for the purpose, or that there was not an abundance of suitable materials of all kinds with which to do this work of hoisting. Nor is there any claim made that the servants employed by the defendant were incompetent or insufficient in number, and no allegation of that kind is contained in the writ.

The accident was unquestionably caused by the failure of those engaged in securing this collector in its temporary position, while the tackle was to be unfastened, to exercise sufficient care. But this was

the fault of the plaintiff and his fellow-servants, or some one or more of them. The defendant had performed its full duty when it had provided suitable appliances necessary for the work of hoisting and placing in position this collector, and had employed competent and sufficient workmen.

But it is urged that the defendant's superintendent, by reason of his entire superintendence of this work, and of the absence of the employer, was not a fellow-servant of the plaintiff, but that he was a vice-principal; that he had the immediate supervision of the work, and that he was negligent in not giving more explicit instructions as to temporarily securing the collector, and in not himself seeing that this was properly and safely done; and that the defendant is liable for any negligence of his.

The doctrine that a superior servant is on that account a vice-principal, representing his master, rather than a fellow-servant with others employed by the same master and engaged in the same work, does not prevail in this State, and is not supported by the weight of authority. The master's liability to one servant for the negligence of another in no way depends upon the superior rank of the negligent servant. A servant of any grade may be employed in the discharge of the particular and personal duties which the master owes to the servant, as when he is engaged in the duty of providing safe, suitable, and sufficient machinery and appliances. While engaged in such employment, although at other times he may be only a fellow-servant with other employees, he becomes a vice-principal, and his master is liable for his negligence, because the performance of these duties can not be delegated by a master so as to relieve himself from the consequence of negligence in these respects. The test which determines the master's liability for the negligence of one employee, whereby injury is caused to another, is the nature of the duty that is being performed by the negligent servant at the time of the injury, and not the comparative grades of the two servants.

In this case the superintendent represented the defendant at Portland, and was undoubtedly in the position of a vice-principal while he was engaged in the performance of those duties that the defendant owed to its employees, in providing all necessary and proper appliances and materials, both as to quantity and quality. But in doing the work of hoisting this dust collector into its position he was a fellow-servant of the plaintiff, who was employed for and engaged in carrying out the same purpose; and, even if any negligence can be attributed to the superintendent in the performance of this work of temporarily securing the collector, necessarily incidental to the