ALASKA MINING COMPANY

v.

WHELAN

MR. Justice Gray,

after stating the case, delivered the opinion of the court.

The evidence introduced at the trial, giving it the utmost possible effect in favor of the plaintiff, was insufficient to sup port a verdict for him; and the defendant’s request, made at the close of the whole evidence, to instruct the jury to return a verdict for the defendant, because Finley, whose negligence was'the ground of the action, was a fellow-servant of the plaintiff, should have been granted.

Finley was not a .vice-principal or. representative of the corporation. He was not the general manager of its business, or the superintendent of any department of that business. But he was merely the foreman or boss of the particular gang of men to which the plaintiff belonged. Whether he had or had not authority to engage and discharge the men under him is immaterial. Even if he had such authority, he was none the less a fellow-servant with them, employed in the same department of business, and under a common head. There was no evidence that he was an unsuitable person for his place, or that the machinery was imperfect or defective for its purpose. The negligence, if any, was his own negligence in using the machinery or in giving orders to the men.

The case is governed by a series of recent decisions of this court, undistinguishable in their facts from this one. Central Railroad v. Keegan, 160 U. S. 259 ; Northern Pacific Railroad v. Charless, 162 U. S. 359; Same v. Peterson, 162 U. S. 346; Martin v. Atchison &c. Railroad, 166 U. S. 399. See "also Wilson v. Merry, L. R. 1 H. L. Sc. 326.

This ground being decisive of the case, no opinion need be expressed upon other questions argued at the bar. Judgments of the Circuit Court of Appeals and of the District Court reversed, and case remanded to the District Court with directions to set aside the verdict and to order a new trial.

The Chief Justice and Mr. Justice HaelaN dissented.