The opinion
Dent, Judue
{dissenting) :
I. am compelled to dissent in this case, to be consistent with the position taken in the case of Flannegan v. Railroad Co., 40 W. Va. 410 ( 21 S. E. 1028 ), as follows, to wit: “The doctrine, as recognized and enforced in this ¡State, is that it is the personal and non-assignable duty of the master — First, to exercise reasonable care in providing and keeping in repair suitable machinery, and all necessary appliances, including a safe place to labor; second, to exercise a like care to provide and retain suitable servants for each department of service; third, to establish, conform to, and enforce compliance with proper rules and regulations. Those are the superior duties, for the proper performance of which the master is responsible, whether he entrust them to a department, or any employe of any grade, and the neglect of which by the agent or agency to which they are intrusted renders the master liable to any one injured by reason of such negligence, against whom and to whom contributory negligence cannot be shown or imputed from his own act or the act of a fellow servant, whether it be of commission or omission. Daniel's Adm'r v. Railway Co., 36 W. Va. 397 ( 15 S. E. 162 ); Cooper v. Railway Co., 24 W. Va. 37 ; and other cases heretofore cited; also, Schroeder v. Railway Co., 108 Mo. 323 ( 18 S. W. 1094 ); Foster v. Railway Co., 115 Mo. 165 ( 21 S. W. 916 ). The decisions of many jurisdictions are not in line with our decisions on this subject. 7 Am. & Eng. Enc. Law, 821, tit. ‘Fellow Hervants. ’ The rule of stare decisis applies with impi-egnable force in this instance, and from which tlvere is no way of escape, even if the court were so inclined, unless by an utter and reprehensible disregard of all precedent.” The majority of the Court, however, appear to have arrived at a-different conclusion, and have determined, in disregard of its former decisions, to start *402 on the promulgation of an entirely different rule, dependent on the principles of fellow service.
Under the doctrine as heretofore established by this Court, the liability of the master was not determined by the rank or title of the employe or servant, but on the duty that he was called upon to perform or discharge. If such duty was a non-assignable, sometimes called “positive,” duty of the master, the master was liable for the servant’s negligence, to any person injured thereby; but, if an assignable duty, the master was not liable. ¡So that, in determining whether the servant was for the time being the agent or vice-principal, his rank was not considered; but the duty he was in the act of performing was alone decisive of the question, although it is generally recognized that the duties of the master are more apt to be imposed on those of his servants who hold superiority in rank. It was improper, therefore, to hold that any officer or employe was at all times, by reason of his employment or rank, a vice principal. And it is just as improper to hold that an officer or employe, by virtue of his employment, is at all times the fellow servant with those with whom he is working, whether in a superior or inferior capacity. The main question in every case of negligence was not whether, generally speaking, the servant in fault was the superior or inferior in rank of the injured party, but whether the duty the negligent servant was called upon to perform was a non-assignable duty of the master, and from this duty alone his temporary position of vice principal or fellow servant was determined. The effect of the present opinion is to change this law, and to hold that a conductor, it matters not what duty may be imposed upon him by the .master, as to all the other trainmen, whether on bis train or on other trains, is a fellow servant; in short, that, the duties of all the employes in the operating department of the road make them fellow servants, it matters not the relationship they bear to each other, nor that the duties they may be called upon to discharge may be what have been heretofore designated by this Court, and even in the opinion of Junan BrannoN, to be the non-assignable duties of the master. Among these non-assignable duties is the duty to furnish a safe place to work, — that is, as to trainmen, a safe track, not only in construction, but free from *403 dangerous obstructions of every kind, — and also to adopt, promulgate, and enforce safe and proper rules for the conduct of business, including the government of the machinery, and the running of trains on a railroad track. Mr. Bishop sums up the the duties of the master to be “watchfulness of ways and appliances.” In the ease of Riley v. Railway Co., 27 W. Va. 145 , it is held : “When a railroad company puts a superintendent, foreman, or •other employe in its place to discharge some duty which it owes to its servants or employes, as to such duty such superintendent or other employe is not a co-servant, but the representative of the company, and as to such duty the company is bound by the acts or omissions of such middleman, the same as though the acts had been done or omitted by the company itself.” This is the doctrine of vice principal, as settled in this State, first announced in the case of Cooper v. Railway Co., 24 W. Va. 37 , and followed in Madden v. Railway Co., 28 W. Va. 610 ; Criswell v. Railway Co., 30 W. Va. 798 ( 6 S. E. 31 ); Daniel's Adm'r v. Railway Co., 36 W. Va. 397 ( 15 S. E. 162 ); Core v. Railroad Co., 38 W. Va. 747 ( 18 S. E. 596 ); Haney v. Railway Co., 38 W. Va. 570 ( 18 S. E. 748 ); Flannegan v. Railroad Co., 40 W. Va. 440 ( 21 S. E. 1028 ), — all of which cases are overruled by the present case, in its effect, although the language is not made to so express.
In the case of Railroad Co. v. Peterson, 162 U. S. 353 (16 Sup. Ct. 843), Air. Justice Beckham says : “If, instead of personally performing these obligations, the master engages another to do them for him, he is liable for the neglect of that other, which in such case is not the neglect of a fellow servant, no matter what Ms position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform, as suchi” This language is in perfect harmony with former decisions of this Court cited above, and to which the Bu-preme Court of the United Btates continues to adhere. McKinney, Eel. 8erv. 304, states the general ride to be that the master’s duty to his employes is fully performed when he establishes and promulgates proper rules and regulations. With the carrying out and enforcement of such rules and regulations he has nothing to do. After the master has completed, furnished, and equipped the road, *404 and adopted rules and regulations, his duty towards his employes is at an end. If they disregard the rules, and operate the road at liberty, and thereby render the employment extra-hazardous and dangerous, the master is not liable to his servants injured thereby. Such is the conclusión of the opinion in this case, but such is not the law of this State, as heretofore settled by the decisions of this Court. They hold that, if a master engages in the (jitfín/ publie operation of running a railroad, it is a duty incumbent upon him, both to the public and individuals, not only to adopt and promulgate proper rules, regulations, and schedules for the separate divisions of his business, called “trains,” but also to keep a watchful and superintending eye over his whole road, to see that these rules, regulations, and schedules are faithfully adhered to and carried out, and if, for any unforseen cause, they are interrupted, hindered, or rendered impracticable, to substi-hite necessary special arrangements in lieu thereof. And as the master cannot be omnipresent, or, being a mere liction of law, known as a “corporation,” cannot be present at all, such duties must be performed by persons expressly delegated for the service, commonly known as “vice principals.” Ho that it may, and often does, happen that each and every employe of a railroad may be called upon to fill the important-position of a vice principal. For instance, when a train starts from one end of the. road the track may be dangerously obstructed, in a. manner not known to the trainmen, by numerous other trains running on or out of time, or by washouts, slips, bowlders, or otherwise; and it is the duty of the master, who is required to vigilantly guard the track, to notify the trainmen of these various obstructions, which duty he may impose on a conductor, brakeman, watchman, or other employe, and, if such employe fails to give the required notice or warning, his failure is imputed to the master. The holding of other courts is that all the master is required to do is to furnish competent servants to watch the road and give warning of obstructions, and for their negligence he is not liable. But this Court has heretofore held that these are positive duties of the master, which he cannot delegate in such manner as to escape, liability. If we are to be guided by precedent, and follow the beaten track *405 marked out- by our predecessors, it become,s equally erroneous to bold that a conductor, as such, is a fellow servant, of the other trainmen, as to hold that lie is a vice principal, without regard to the duty he is discharging. The decision in the present case abandons the old road, and, flying oil' at a tangent, undertakes to follow a path pointed out by certain text writers as the main highway pursued by the courts of other states whose doctrines are less settled than our own, and greatly limits in extent, the non-assignable or positive duties of the master, even tending towards their entire abrogation, and which will be the natural sequence if the course evidently indicated is pursued, when it will be finally determined that all servants of a common master, without regard to rank, authority, or duty, are fellow servants, and thus wholly relieve the master from liability to them on account of the negligence of each other. It is better to have the law settled, even though it operate harshly, than to have a state of confusion itroduced by a continual abandonment of former maturely considered principles. I concur in the conclusion, but not, in the principles stated contrary to the former decisions of this Court,
Reversed.