(50rn?U Ham i'rJinoI Hibtatg Cornell University Library KF 1257.B15 1912 ».1 A treatise on the law of personal injur! 3 1924 019 309 941 The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 9309941 A TREATISE ON THE LAW OF PERSONAL INJURIES INCLUDING EMPLOYER'S LIABILITY, MASTER AND SERVANT AND THE WORKMEN'S COMPEN- SATION ACT By HON. W. F. BAILEY OF THE WISCONSIN BAR SECOND EDITION THREE VOLUMES VOLUME I CHICAGO: CALLAGHAN & COMPANY 1912 Copyright, 1912 by CALLAGHAN & COMPANY PREFACE. The present work embraces features that are con- tained in the author's former works on Master's Lia- bility for injuries to his servant and personal injury cases. When the jSrst work was prepared the law re- lating to the master's liability was, so to speak, in a confused state, and the purpose was to properly state and classify the principles which had been declared by the courts and by the applications of which their deter- minations were said to rest. The difficulty then was and to a great extent now is, the diverse views of courts in the application of conceded principles resulting in the establishment in different jurisdictions of widely different rules. It thus became and is essential to a proper comprehension of the general subject, that the rule in each jurisdiction thus established, be stated and illustrated. Complete illustration becomes necessarily essential for the reason that courts of the same jurisdic- tion have often created an apparent exception to its general rule to meet peculiar conditions. The treat- ment of the general subject is further complicated from the fact that ia many states statutes have been enacted which contravene the common law rules therein which have been established, made applicable to particular employments only, in most eases imposing liability upon the master where none existed prior, and taking away defenses which, under the common law rules, were open to him. Within the past few years statutory liability of the master has developed to a great extent and to the effect quite generally in the states where such statutes have been enacted, that there exists stat- utory rules governing the master's liability, as appli- cable to certain employments, and common law rules, as applicable to other employments. It has been the design of this work to incorporate herein such enact- ments and their construction by the courts in applying (V) vi Peeface. them to particular cases and conditions, and also to incorporate herein a concise statement of the facts and the rule applied, both statutory and common law, in each particular jurisdiction in the United States of practically all the important cases decided by their courts of last resort. To accomplish this purpose it has required an immense amount of labor and research. Many thousand cases had to be examined and extracts made from the opinions rendered in each. The prac- titioner, as the result of such efforts, is able, not only to learn the rule of law that governs any particular state of facts, in each particular jurisdiction, but also is afforded an opportunity not otherwise open to him to ascertain whether the particular question which he presents has ever before been the subject of judicial determination. The work is further designed to be practical to lessen the labor now required in delving among a great number of cases to extract therefrom the principle and precedents which perhaps may govern his case. To still further lighten the labor reference has been made, in addition to the pubUshed reports to the Reporter System, the American Reports, American Decisions, American State Reports and Lawyers' Re- ports Annotated. While the author has felt at liberty to, and has in some cases, indulged in criticisms of what seemed to him of rulings that were inconsistent with the general rule established, yet, he has given at con- siderable length the parallel cases, so that a court or the practitioner, as the case may be, can determine the question regardless of the criticism or opinion of the author. W. F. Bailey. Eau Claire, Wisconsin, November, 1911. TABLE OF CONTENTS. VOLUME L BOOK I. GENERAL CONSIDERATIONS. Chapter. I. Introductory, §§ 1-9. II. What law governs, §§ 10-18. III. Existence of relation, §§ 19-36. IV. Independent contractors, §§ 37-44. V. Proximate and concurring causes, §§ 45-54. VI. Contracts limiting liability, §§ 55-59. VII. Contracts releasing claims, §§ 60-65. CHAPTER I. Introductory, Secs. 1-9. Sec. 1. Scope of work. 2. Synopsis of duties and defenses. 3. Safe place to work and safe appliances. Inspection. Employment of servants. Establishment of rules. Warning and instructing servants. Statutes. Mode of treatment of duties. Defenses. Assumed risk. Contributory negligence. Fellow-servants. Scope of employment. (vii) viii Mastek and Servant. Sec. 4. Statutory provisions. 5. Care required of master — Definition of ordinary care. 6. Negligence as basis of action. Violation of statute as negligence. 7. Dangers unforeseen. 8. Acts of strangers. 9. Illegal employment. CHAPTER II. What Law Governs. Secs. 10-18. Sec. 10. In general. 11. Whether foreign statute in conflict with policy of state where action brought. 12. Where injuries sustained on navigable waters or high seas. 13. Rule as respects contributory negligence. 14. Limitation of actions. 15. Law of evidence. 16. Where liability placed on common law. Doctrine of North Carolina Court. 17. Statutes — Adoption of their interpretation by state where enacted. 18. Laws of sister state; pleading and proof. CHAPTER III. Relation. Secs. 19-36. Sec. 19. Necessity for relationship and when it exists in general. 20. Right of selection. 21. Substitutes. 22. Substituted master. 23. Servant employed by one to act for another. 24. Servants of different persons or companies using same track or grounds. Table of Contents. ix Sec. 25. Servants working temporarily for another. 26. Existence of relation outside of actual working time. 27. Servants injured on train, vessel or other conveyance when not employed thereon. 28. Servants of another working upon train or vessel. Express messengers. News agents. Postal clerks. Proprietor of bar on vessel. Sleeping car porters. 29. Servants of different contractors. 30. Servants of lessee. 31. Volunteers and persons invited to assist. 32. Authority of employee to employ assistants. 33., Public officers. 34. Persons working under public officers. 35. Receivers. 36. Convicts. CHAPTER IV. Independent Contractors. Secs. 37-44. Sec. 37. Scope of chapter and general considerations. 38. When an independent contractor. Mode of payment as determining. Right to control work. Right to terminate employment. Effect of furnishing appliances and materials. Architects. Physician employed by defendant. Stevedores. 39. Relation ordinarily determined by contract between parties. 40. Termination of relation. 41. General rule as to liability of contractee. Whether act directed by superior. Master and Servant. Sec. Work done upon owner's land by another. 42. Exceptions to general rule as to liability. (a) Where work wrongful in itself or if done in ordi- nary manner would result in nuisance. Where excavation or obstruction collateral to work. (b) Where work in its nature dangerous however carefully performed. (c) Where duties imposed by law. (d) Where duties imposed by contract. (e) Wrongs done in pursuance of franchise. (f) Actual interference of master. (g) Ratification of acts of contractor. (h) Employment of incompetent contractor, (i) Where several contractors. 43. Liability of contractee to servant of contractor. Furnishing unsafe appliances. Furnishing unsafe place to work. 44. Liability of contractee to his own servants. Safe place to work. Safe appliances. Exercise of franchise. CHAPTER V. Proximate and Concurring Causes. Secs. 45-54. Sec. 45. General considerations. 46. Definitions. 47. Injuries which should have been foreseen. 48. Intervening efficient cause. 49. Two or more independent causes. 50. Classification of proximate causes. 5L Negligence as proximate cause. 52. Particular negligence as proximate cause. Contributory negligence. Negligence of fellow-servants. Table of Contents. xi Sec. 53. Concurring causes. Distinction between concurring and intervening causes. Reason for rule. Accident and master's negligence concurring. Negligence of servant not probable consequence of master's act. 54. Illustrations of concurrent negligence. Where negligence of master concurs with accident. Concurring negligence of master and stranger. Concurring negligence of master with act of God. CHAPTER VI. Contracts Limiting Master's Liability. Secs. 55-59. Sec. 55. Validity in general. 56. Contract between sleeping car company and porter. 57. Contracts between principal and contractor. 58. Contracts embracing risks not assumed as based on con- sideration. 59. Insurance contracts, reUef fund department. Effect of failure of master to comply with agreement. Knowledge of agreement on part of employee. Where beneficiary named not person entitled to damages for death. CHAPTER VII. Contracts Releasing Claims. Secs. 60-65. Sec. 60. In general. 61. Consideration. 62. Validity. Ignorance of contents. FVaud. xii Master and Servant. Sec. Reality of assent. Mistake and oral testimony. Mutual mistakes. Settlement in absence of counsel. 63. Whether avoidable in action for damages. 64. Return of consideration paid. 65. Burden of proof. BOOK II. IMPLIED DUTIES OP MASTER. Chapter. I. General considerations, §§ 66-68. II. Safe place to work, §§ 69-156. III. Safe appliances, §§ 157-291. IV. Instructing and warning servants, §§ 292-310. V. Methods, §§ 311-321. VI. Rules, §§ 322-333. VII. Employment of servants, §§ 334-352. CHAPTER I. General Considerations. Secs. 66-68. Sec. 66. Enumeration of duties. 67. Effect of custom. 68. Delegation of duties. CHAPTER II. Safe Place to Work. Secs. 69-156. i. general rules. Sec. 69. Rule and exceptions stated. 70. Safe place as distinguished from safe tools, machinery and appliances. 71. Matters considered and question as one for injury. Temporary structures. Permanent structures. 72. Duty of master as delegable. 73. Where place selected constructed by or in care of injured servant. (xiii) xiv Master and Servant. Sec. 74. Place of work controlled or owned by third person. 74a. Safe place improperly used. 75. Where place is "reasonably safe." Master's duty not absolute but exercise of ordinary care. 76. Failure to supply articles as making place unsafe. 77. Effect of illegality of work. 78. What plaintiff must show. II. WHAT CONSTITUTES PLACE TO "WORK. 79. Includes only place provided for servant's occupancy or accustomed use. 80. Temporary places. III. EXCEPTIONS TO RULE DEPENDENT ON NATURE OF WORK. 81. In general. 82. Exception as applicable where work necessarily renders place dangerous. 83. Application of exceptions to rule. Ballasting track. Blasting operations. Construction of bridge. Construction of building. Construction of pier. Construction of tracks. Firing place in mine. Landslides. Making alterations in electric switch board. Mining operations. Moving gravel in pit. Oil box on engine. Repairing bridge. Repairing building. Repairing tracks. Sheeting trench. Tearing down acid chamber in building. Table or Contents. xv Sec. Tearing down wall. Removal of buildings. Tracks. IV. EXCEPTION WHERE PLACE MADE UNSAFE BY FELLOW-SERVANT OR THIRD PERSON. 84. Master ordinarily not liable. 85. Danger incident to work. 86. Duty of warning where exposed to danger from doing of work by other servants. 87. Unsafe condition created by third person as result of malicious act of trespasser. 88. Doctrine of Kentucky Court. 89. True doctrine stated. 90. Length of time unsafe condition exists as charging master with notice. 91. Permanent structures. 92. Application of rule. V. CHARACTER OF PREMISES, A. In general. 93. Introductory. 94. Scope of subdivision. B. Bridges. 95. In general. 96. Width. 97. Height. C. Mines. 98. In general. 99. Timbering. 100. As a place of work. 101. Setting and repair of timbers. 102. Precautions to prevent material falling from roof. 103. Water in adjacent mine. xvi Mastee and Servant. Sec. 104. Structures or appliances in. 105. Statutes regulating and violations thereof. D. Tracks. 106. Construction. Ballasting. 107. Cattle guards. 108. Culverts. 109. Fencing. 110. Structures near track. E. Side tracks. 111. Construction. 112. Ballasting. 113. Character of rails. Closeness to main track. VI. CONDITION OF PR] A. In general. 114. Introductory. B. Bridges. 115. In general. 116. Adoption by use. C. Buildings. 117. In general. 118. Fire escapes. 119. Floors. 120. Steps. 121. Trap doors. D. Dynamite, storage of. 122. As making place unsafe. E. Electrical appliances. 123. Care to be exercised. Table of Contents. xvii Sec. 124. Specific duties. 125. Character of appliances. Proximate cause. 126. In general. F. Elevator shafts. G. Quarries. 127. Master's duty. 128. Unexploded blasts. H. Tracks. 129. In general. 130. Warning, effect of. 131. Extraordinary storms and freshets. 132. Depressions or holes in. 133. Open ditch. 134. Defects in rail. 135. Control of power while repairing electric railway. 136. Telltale, condition of. 137. Ties, condition of. 138. Side tracks. Rails, condition of. 139. Obstructions upon. Piles of sand. Clinkers. 140. Obstructions at side. Lumber piles and rails. Truck left near. Wagon left near. Rocks in bank in cut. 141. Ice and snow. 142. Temporary tracks. 143. Private tracks. 144. Tracks owned by third person. VII. TRENCHES, PITS AND TUNNELS. 145. In general. 146. Excavating and shoring. xviii Master and Servant. Sec. 147. Furnishing material. 148. Peculiar conditions. 149. Latent dangers. 150. Where work is required in a trench prepared. Sufficiency of material furnished. Covering. Guarding. 151. Pits. 152. Tunnels. VIII. NOTICE OR KNOWLEDGE OF DEFECTS AND RESULTS THEREOF. 153. In general. 154. Length of time. 155. Time to remedy defects. 156. Dangers not reasonably anticipated. CHAPTER in. Safe Appliances. I. In general, §§ 157-161. II. Character and extent of duty, §§ 162-177. III. Character or kind as question for jury, § 178. IV. Safeguards and precautions, §§ 179-193. V. Improper use of appliances, §§ 194-195. VI. Servants selecting unfit appliances, § 196. VII. Staging and scaffolds, §§ 197-221. VIII. Defects and repairs. A. In general, §§ 222-224. B. Statutory provision and common law rule in different states, §§ 225-240. IX. Inspection. A. Existence of duty, §§ 241-258. B. Sufficiency, §§ 259-266. C. Inspection of foreign cars, §§ 267-278. D. Proximate cause, § 279. X. Knowledge or notice of master, §§ 280-291. Sec. Table of Contents. xix I. In General. Secs. 157-161. 157. Rule stated. 158. Machinery and appliances defined. Arrangement and adjustment of parts. 158a. Statutory provisions. 159. Enumeration of particular appliances and machinery. (a) Car stakes. (b) Coupling pin. (c) Hand car. (d) Horses and mules. (e) Lodging furnished servant. (f) Logging road. 160. Ordinary tools. 161. Illustrations relating to common tools. II. Character AND Extent OF Duty. Secs. 162-177. 162. Safest and best; rule. 163. General use as test. 164. Rule as applied to particular appliances. 165. Rule as to general use not recognized in some juris- dictions. 166. Conflicting evidence, question for jury. 167. Whether master required to adopt such as are in general use. 168. New inventions, rule. 169. General rule as affected by inexperience of employee. 170. Sufficient for the purpose. 171. Machinery or appliances not incidental to service. 172. Illustrations of rule as to' sufficiency for the purpose. 173. Long use without accident. 174. Different kinds in use. 175. Adjustment of appliances. 176. Selection by employee. Particular instances and articles. 177. Reasonable time to remedy defect. Duty as to repair where warning given. XX Master and Servant. Sec. III. Character or Kind Ordinarily not a Ques- tion FOR a Jury. Sec. 178. 178. General rule and illustrations. IV. Safeguards and Precautions. Secs. 179-193. 179. Duty in respect to safeguarding appliances, whether absolute. 180. Guarding machinery in general. 181. Effect of custom. 182. General use as a test. 183. Different rule in some jurisdictions. 184. Guarding or failure to guard set screws. 185. Not required when guard would not protect. 186. Duty where young persons are exposed. 187. Where guard or guide essential to proper performance of work. 188. Servants placing attachments for their own convenience. 189. Guard provided but not used. 190. Removal of hood not used for protection of employee. 191. Machinery not near employee. 192. Illustrations respecting duty to safeguard particular appliances and premises. 193. Statutory regulations and factory acts in several states. V. Improper Use of Appliances. Secs, 194-195. 194. General rule. 195. Application of rule. Illustrations. VI. Servants Selecting Unfit Applla.nces, Sec. 196. 196. General rule. Application of. Illustrations with respect to particular appliances. VII. Staging and Scaffolds. Secs. 197-221. 197. Appliances, not a place of work. Table of Contents. xxi Sec. 198. Duty performed by furnishing suitable materials and competent workmen. 199. Sufficient that is suitable must be provided. 200. Rule where representative of master plans and super- intends. 201. Rule where furnished as a completed structure. 202. Rule where complete appliances for construction are furnished. 203. Permanent scaffold. 204. Knowledge of master of imperfect construction, effect. 205. Where master directs use of unsuitable material. 206. Scaffold built by independent contractor. 207. Scaffold constructed by employee injured. 208. Scaffold constructed under direction of master's foreman. 209. Scaffold known to be defective by vice-principal directing its use. 210. Scaffold designed for other purposes than ordinary use. 211. Temporary uprights used to support permanent tie beams. 212. Employees working near but not upon, injured by. 213. Taking down defective scaffold. 214. Scaffold built by others as place of work. 215. Rule of union as to construction by members. Effect upon liability of master. 216. Rule in Illinois. 217. Rule in North Carolina. 218. Rule in Michigan. 219. Rule in Missouri. 220. New York Labor Law. Pleading. Temporary staging in room. Master's duty as absolute. Construction of wood structure. 221. Ohio statute. xxii Master and Seevant. VIII. Defects and Repairs. Secs. 222-240. A. In general. Sec. 222. General rule. 223. Delegation of duty as dependent on particular rule of fellow-servant. Defects arising in daily use — Rule. Where servant employed to put a thing in safe and suitable condition. 224. Application of rule as to particular appliances. B. Statutory provisions and common law. Rule in different states. 225. General considefations. 226. Alabama. At common law. Statute. 227. Arkansas. 228. Federal courts. 229. Illinois. 230. Indiana. 231. Maine. 232. Maryland. 233. Massachusetts. At common law. Employer's Liability Act. Unsuitableness a defect under the statute. Statute embraces direction to use defective temporary appliance. Defense of assumption of risk not taken away. Burden as to ordinary care on plaintiff. Liability same as at common law. Application of statutory and common law doctrine to particular places and appliances. 234. Mississippi. Common law rule. Constitutional provision. Code provision. Table of Contents. xxiii Sec. 235. New York. 236. New Jersey. 237. North Carolina. 238. Ohio. Common law. Pleading. Statute. 239. Oregon. 240. Wisconsin. IX. Inspection. Secs. 241-279. A. Existence of Duty. 241. Duty of master in general. 242. Duty as dependent upon ownership. 243. Where appliance procured from reliable dealer or manu- facturer; rule. Doctrine stated by Michigan court. Doctrine stated by New York court. Doctrine stated by United States Supreme Court. Doctrine stated by Federal Courts of Appeals. Doctrine stated by Wisconsin court. Doctrine stated by Massachusetts court. Absence of visible defects. Where superficial examination would discover defects. 244. Where appliances constructed by master; rule. 245. Duty as a continuing one. 246. Defects from age and long use. 247. Inspection incidental to use. 248. Duty includes premises. 249. Inspection of quarry for unexploded blasts. 250. Inspection of mines and appliances therein. 251. Inspection of common tools. 252. Inspection after unusual occurrence. 253. Statutory inspection. 254. Improbable occurrences. 255. Temporary conditions. 255a. Appliances employees have no right to interfere with. xxiv Mastee and Servant. Sec. 255b. System of inspection. 256. Rules requiring servant to inspect. 257. Customary inspection, effect. 258. Duty, when and when not delegable. B. Sufficiency. 259. Ordinary care; the rule. 260. Character and use as test. 261. Frequency of inspection. 262. Tools required. 263. Number of inspectors. 264. Customary inspection, effect. 265. Official inspection. 266. Illustrations. C. Inspection of foreign cars. 267. General rule. 268. Duty as performed by employment of competent in- spectors. Contrary doctrine. 269. Character of, ordinary. 270. Expression "duty same as if owned" explained. 271. Distinction between foreign and domestic cars. 272. Duty upon discovery of defects. 273. Reasonable time to inspect. 274. Duty on part of delivering company. 275. Rule as applicable to sidings where delivered. 276. Rule in South Carolina. 277. Foreign cars used in company's own business. 278. Immaterial that cars are not to be sent out upon road. ' D. Proximate cause. 279. Failure to inspect as proximate cause. X. Knowledge or Notice of Master. Secs. 280-291. 280. Necessity for pleading and proof. 281. When chargeable with knowledge. Table of Contents. xxv Sec. 282. Knowledge by agent or servant. Illustrations of rule. Specific instances and employees. 283. Knowledge from condition of appliances. Illustrations. 284. Rule in Kentucky. 285. Knowledge or means of knowledge of particular defect. 286. Defects in original construction. 287. Defective appliance not in itself dangerous. 288. Danger unknown and not reasonably anticipated. Illustrations. 289. Evidence to show notice. Prior accident from same cause. Proof of no prior accident. 290. Notice presumed from lapse of time. Illustrations. 291. Failure to discover. CHAPTER IV. Instructing and Warning Servant. Secs. 292-3 10a. 292. General rule. 293. Duty as delegable. 294. Transitory risks. 295. As to effect of negligence. 296. Danger not reasonably anticipated. 297. Dangers resulting from negligence of fellow-servants. 298. Where changes made increasing the hazard. 299. Dangers from work outside scope of employment. Voluntarily attempting to repair machinery. Voluntarily performing work of another. 299a. Obvious risks and dangers. 299b. Latent and extraordinary risks or dangers. Dangers from extraneous cawses. 300. Experienced servants. 301. Inexperienced servants. xxvi Master and Servant. Sec. Presumption of qualification of servant seeking em- ployment. Where servant holds himself out as experienced. Servant transferred to other work. 302. Knowledge of master of defect or danger. 303. Knowledge of master of incapacity or inexperience of servant. 304. Knowledge of servant of danger. 305. Particularly hazardous agencies. 306. Promise to warn. 307. Proximate cause. 308. Presumption as to warning having been given. 309. Sufficiency of instructions or warning. 310. Duty to warn infants. 310a. Duty as applicable to particular acts, appliances or em- ployees. CHAPTER V. Methods. Secs. 311-321. 311. Preliminary statements. 312. System. 313. Supervision. 314. Danger not anticipated from system used. 315. Customary methods. 316. Electrical appliances. 317. Explosives. 318. Operating factories. 319. Operating mines. 320. Operation of railroads. 321. Direction of foreman or superior. Table of Contents. xxvii CHAPTER VI. Rules. Secs. 322-333. Sec. 322. Definition of term as applied. 323. Master's duty to promulgate. 324. Reasonableness. Question of law ordinarily. 325. Sufficiency. 326. Promulgation. 327. Knowledge by employee. 328. Duty of master to enforce. 329. Waiver by habitual or customary violation. 330. Effect of failure to observe by servant injured. 331. Construction. 332. Pleading. 333. Evidence relating to. CHAPTER Vn. Employment of Servants. Secs. 334-352. i. competent servants. 334. In general. 335. Duty of master. 336. What constitutes ordinary care. 337. Duty personal to the master. Illustrations of rule. 338. Retention of servant. 339. Master's knowledge of incompetency. Presumptions. Burden. Insane employees. Use of intoxicating liquors. General reputation. 340. What costitutes incompetency. 341. Reputation as proof of incompetency. 342. Specific acts as proof of incompetency. xxviii Master and Servant. Sec. 343. Character of act as tending to show incompetency. 344. Incompetency as proximate cause. 345. Where servant member of labor union. 11. NUMBER OF SERVANTS. 346. Duty of master. 347. Application of rule. Illustrations. III. EMPLOYMENT OF MINORS. 348. Duties and liabiHties independent of statute. 349. Statutory provisions. Illinois. Indiana. Iowa. Michigan. IV. EMPLOYMENT OF PHYSICIAN OR SURGEON IN CASE OF ACCIDENTS. 350. Duty of master. 351. Authority of agent to employ. 352. Competency of surgeon employed. MASTER AND SERVANT. BOOK I. GENERAL CONSIDERATIONS. Chapter I. Introductory, §§1-9. II. What LAW governs, §§10-18. III. Existence of relation, §§ 19-36. IV. Independent contractors, §§37-44. V. Proximate and concurring causes, §§45-54. VI. Contracts limiting master's liability, §§55-59. VII. Contracts releasing claim, §§60-65. CHAPTER I. INTRODUCTORY. See. 1. Scope of work. 2. Classification of work. 3. Synopsis of duties and de- fenses, and difflculties to be encountered. Safe place to work and safe appliances. Inspection. Employment of competent and sufficient coservants. EstabKshment and promul- gation of rule. Warning and instructing servants. Statutes. Mode of treatment of duties. See. Defenses. Assumed risk. Contributory negligenco. FeUowservants. Scope of employment. 4. Statutory provisions. 5. Care required of master. Wbat is ordinary care. Care required as to minor servant. 6. Negligence as basis of action. Violation of statute as negligence. 7. Dangers unforeseen. 8. Acts of strangers. 9. Illegal employment. § I. Scope of work. This treatise includes the question of the liability of master to his servant for personal injuries received while acting as servant. It does not include, except inciden- tally, the question as to the liabiHty of the master to 1 1 M. & S.— 1 2 Master and Servant. § 2 third persons for tlie acts of his servant. However, in con- nection with the question of the master's UabUity to his servant, it has been found necessary to include chapters containing the rules as to when the relation exists, inde- pendent contractors, and also relating to evidence and pleading in personal injury suits. § 2. Classification of work. The subject logically divides itself into five books as follows: I. General considerations. II. Imphed duties of master (including chapters on safe place to work, safe appliances, sufficient number of coservants, competent coservants, instruction and warn- ing, methods, rules, etc.) III. Defenses (including chapters on contributory neg- ligence assumed risk, fellow-servants, and scope of employment.) IV. Evidence. V. Procedure, including pleading, parties, and notice before suing. The questions will be treated of in this order in this work. In book I, entitled "General Considerations," following this introductory chapter, will be chapters on what law governs, the existence of the relation of master and servant, independent contractors, contracts limiting ha- bility, contracts releasing claims accrued, proximate and concurring causes, etc. In some respects, and in some cases, as stated, the doc- trine of relation is analogous to that of scope of employ- ment. The material question in the former is whether the relation of master and servant actually exists at the time of injury and in respect to it. Thus, a servant may be in the general employ of one, but at the time of injury performing services temporarily for another, and the question is presented which for the time being is the master, in other words, whether the person who employs and who is to compensate him is responsible for his injur- ies, as well as whether the employees engaged in the same §2 Introductory. work but not in the service of his employer are his fellow- servants. A situation which has given rise to considerable controversy and some difference of opinion, is where one railroad company is using the track or grounds of another, with reference to the hability of the lessee company, for defective track or place, causing injtiry to one of its employees, and also where the employees of the lessor company are injured by or through the negligence of the employees of the lessee company, with respect to the liability of either company. The question is also involved as to the relation of one who voluntarily, or at the request of an employee, performs service and is injured while in the performance of such service by or through the negli- gence of the regular employee of the master. There is also involved in the subject of relation the question of the liabiUty of the principal for injuries sustained by the employees of an independent contractor. Whether a person is an independent contractor is often a close question, it being essential to constitute hiTn such, that the principal surrender control of the work and the men performing it. Incident to this is what may be con- sidered in view of the situation, and the terms of the contract, such a surrender of control as determines the question. To what extent a master may by contract Limit his liabUity has grown to be an important question. In addi- tion to the principles of the common law, and to a great extent superceding them, statutes have been enacted in several states absolutely prohibiting contracts having such effect. Whether the legislature of a state has power to absolutely prohibit such contracts, where not against public policy, and where not in violation of the law of the land, is a serious and important question. Such legisla- tion in some of the states has been held valid, while in others the reverse has been held or considered doubtful. The power or right of contract may be said to be an inher- ent right in every person otherwise competent, within the restriction stated. This question is discussed and com- ment made upon the decisions of the courts. It would seem that a recent decision of the New York Court of 4 Master and Servant. § 3 Appeals, rendered since the manuscript was completed, goes very far in support of tlie contention for liberty of contract and against the power of a legislature to un- reasonably restrict it. § 3. Synopsis of duties and defenses and difficulties to be encountered. Of all the subjects in the law that of the master's liability for injuries to his servant is the most unsettled and hence the most difficult to treat. It practically came into existence in 1842, founded upon the declaration of a most learned court. The fundamental principles which thus became involved were, (1) the negligence of the mas- ter and (2) assumption of risk on the part of the servant. The first involved the question of the master's duty, the personal duties owing from him to his servant with respect to the latter's protection from dangers incident to the particixlar employment. The principle underlying his duty is that of the exercise of ordinary care. The un- settled doctrine with respect to the first proposition is, so to speak, twofold; the one as to what duties are by the law imposed upon the master; the other as to what of the duties thus imposed are personal to the master, in the sense that their performance cannot be delegated by him to the extent that he shall not be responsible for the manner of their performance. Courts of different juris- dictions are not entirely in accord as to either of the prop- ositions, and it may also be said that courts of the same jurisdiction in many instances have not been entirely consistent. The most radical of their differences has been, and still is, upon the relation which a superior employee invested with the power of control over subordinates, bears to such subordinates; whether that of master or that of a coservant or employee, or more plainly, whether he is performing the duties of the master or duties per- taining to a servant. In many and perhaps the greater number of jurisdictions it has been determined that the mere fact of such superiority with power of control does not determine the relation, but rather the character of the act which is performed, while in the other jurisdictions § 3 Introductory. that fact of itself determines the question and he who with power and authority directs and controls the sub- ordinate is the master, or rather is performing duties per- sonal to the master. In cases where the former rule pre- vails, in some jurisdictions, the doctrine of superior and subordinate is recognized to a limited extent, as for instance, where a servant has charge of a separate or distinct branch or department of the general business. What may or may not constitute such branch or depart- ment, is often a difficult question, some courts extending the doctrine so as to include operations merely incidental to a separate branch or department, such for instance as the operation of a railway train, while others limit the doctrine to a distinct and practically independent branch of the business where the person in charge is vested with full power and control not only of employees but of the business of that branch. The doctrine is quite generally recognized that those servants who are intrusted with the duty of furnishing apphances in the first instance, are, while exercising such duties, direct representatives of the master, and hence are performing personal duties of the master, while, with respect to maintaining them in a fit condition for use the courts are not agreed, some holding that the master's personal duty extends to repairs, while others hold that such duties may be delegated to the extent that those employees charged with such duties in their exercise are performing the duties of a servant. Safe place to work and safe appliances. Courts not unfrequently have used the expression that it is a duty personal to the master to provide safe appli- ances and a safe place in which his servants are to work. Such is not the law. The master's duty in those respects is the exercise of ordinary care to provide safe apphances and reasonably safe places of work. This doctrine how- ever, does not extend to places where the work itself makes the place insecure, nor quite generally to the con- struction of or adjustment of an apphances, such for instance as a staging or scaffold to be used by the em- 6 Master and Servant. § 3 ployees, excluding such appliances when furnished by the master in a completed state, but the master's personal duty in these respects is the furnishing of sufficient proper materials and competent workmen to make or adjust the appliance. However, the courts are not agreed upon the question of the master's duty in respect to staging and scaffolds, some holding the doctrine that they are places of work, and the rule of the master's duty in respect to place apphes. Inspection. Incidental to and in connection with the duties of the master in maintaining his appliances in a fit and safe con- dition for use, is that of inspection, to make seasonable examination of them to ascertain their condition. There is some disagreement among the courts as to whether such duty is personal to the master or one which he may properly delegate. The character and extent of such inspection or examination is necessarily involved. Most of the courts make a distinction in this respect between domestic and foreign cars, that is cars received from a connecting line for transportation. It is quite generally held, though not in aU cases or by all courts, that this duty of inspection does not extend to ordinary tools or implements or simple appliances, such for instance, as an ax, hoe, wagon, etc. A difficult question in this respect has been the determination whether a particular tool or implement was within the class of ordinary tools or simple appliances. Employment of competent and sufficient coservants. A duty personal to the master, as universally held, is that of the exercise of ordinary care in the employ- ment of fit and competent servants for the duties to the performance of which they are assigned. Such duty does not stop here, but extends to the exercise of care to see and know that if competent when employed that they remain so. If perchance incompetent when employed, their incompetency or unfitness from any cause must be known to the master, he being chargeable with that § 3 Introductory. whicli he would have known by the exercise of ordinary care. The mere suggestion of the duties of the master in this respect at once conveys to the mind dif&culties in determining these questions, and that much depends upon the particular facts and circumstances, as for in- stance what constitutes ordinary care, or rather, the facts being given, was or was it not the exercise of ordinary care? Was the servant in fact incompetent or unfit which includes a determination what constitutes incom- petency or unfitness? How or in what manner is it to be shown? And many other incidental questions. Often- times, in this connection, the question is presented of the inexperience or want of skill of the offending servant which includes youthful employees, and their discretion and judgment, having reference to their age and intelU- gence. The master's duty also includes the providing of a sufficient number of men to properly perform the re- quired service, ordinarily a question of fact. Establishment and promulgation of rules. There are still other duties on the part of the master which are personal, one of which is, where the nature of the business is of that complex character requiring the services of many employees as to require it, the establish- ment and promulgation of reasonable rules, not only for the proper carrying on and dispatch of the business, but also having in view the safety of employees engaged in dangerous employments. Difficulties are also present here. Is the particular employment one that comes within the rule of the master's duty as stated? If rules have been promulgated are they sufficient? Are they reasonable? Have they been so promulgated that the employee either knows or is chargeable with knowledge of them or of the particular rule non observed? Warning and instructing servants. Finally there devolves upon the master the duty of instructing yoimg and inexperienced servants in respect to their duties, and the manner of performing them, and warning them of dangers to which they may, while thus 8 Master and Servant. § 3 engaged, become exposed, whieh they are not presumed to understand and appreciate, as well as to warn em- ployees more mature or even experienced of such dangers. As to whether such duty is personal to the master, it may be said there is an apparent want of harmony among the courts. There certainly is as to dangers of a particular character. Where the dividing hne is, is so uncertain that no one should attempt to define it. To each particu- lar class of cases it seems there is a law unto itself. The difficult questions involved are whether the circumstances and conditions were such that instruction or warning was required, varying in almost every particular case. The character and sufficiency of the instruction and warning is also important. Statutes. This partieidar branch of the subject is further compli- cated by the provisions of statutes, which have been enacted in several states,not uniform, defining in particu- lar instances the master's duty, and to some extent abro- gating the doctrine which had been pronounced by their courts, such for instance as factory acts and relating to the employment of children, also regulating mining operations and the operation of raihoads. These statutes are in- cluded in this work and also the construction placed upon them by the courts. Mode of treatment of duties. Some idea of the intricacies that permeates, so speak, the general branch of the subject (the master's duty"), are thus made manifest from the foregoing statements and review, and of the difficulties in the way of a succinct and inteUigent treatment of it. Most other subjects in the law are susceptible of inteUigent treatment from the fact that there are settled rules and principles which pertain to or govern them, subject, however, to certain excep- tions which are themselves governed by specific and usually weU ascertained and applied rules. With the exception of some general rules and principles which are uniformly applied, all that can be done to convey to the § 3 Introductory. mind of the reader the doctrine prevailing or recognized is by illustration in stating sucinctly the facts in given cases, the determination, and the reasons given for it. It is to be kept in mind, in the absence of statutory regulation, the entire subject is judge made law. There is no common law which regulates it, other than such decisions which have been termed the American common law, although to some extent the determination of Enghsh courts have been used as precedents. It therefore would be injust and a want of proper respect, although our individual opinion as expressed might not accord, to state em- phatically that the rule or doctrine adopted by some of the courts was the law, rather than the rule or doctrine adopted by some others. Of course it is our duty where a determination is so entirely out of line, with weU settled principles in all jurisdictions, and with those of the particular court making it, to call attention to it and com- ment upon it thus attempting to demonstrate its incon- sistency. We have adopted the plan of illustration as stated, as the most practical, having the advantage of what seems to be most desired at this day, and with re- spect to our subject, of precedents, and this also with reference to the prevailing doctrine or rule in each par- ticular jurisdiction which is also given. Defenses. Among the defenses which the master may set up are assumption of risk, contributory negligence, feUow-ser- vants, and injury received while working outside the scope of the servant's employment. These will be treated of in volumes two and thxee in the order stated. Assumed risk. Statutes have been enacted in several states abrogating this doctrine as a defense, where injury has been sustained by an employee in certain class of employments, almost exclusively that of the operation of railroads, while re- tained with respect to other employments. These statutes and their application and construction are given in this work. The courts are practically agreed that the ques- 10 Master and Servant. § 3 tion of assumed risk is independent and not governed by the principles of contributory negligence, though there may be cases the circumstances of which may involve both. One court has designated assumed risk as a species of contributory neghgenee. The general rules defining assumed risk are practically the same in all jurisdictions. The want of harmony lies more in the appUcation of such rules. It may be said that the subject is divisible into three classes; ordinary risks, known risks and obvious risks. The first embraces such risks as are incident to the business as carried on by the use of appli- ances or in the place where carried on, where not defective. The presumption is that the employee, as a part of the contract of service, assumes such risks upon entering the employment. The question, however, is involved of instruction and warning in many cases. The writer is of the opinion that the master not being neghgent in the matter of furnishing appliances or place, that the only question involved is that of instruction and warning, but the courts have been and are still using the expression of ordinary risks not assumed, when the question is deter- mined on the ground that the servant was entitled to but did not receive proper instruction or warning. The second embraces risks which are actually known by the employee although the master may not have in all re- spects performed his duty in respect to the character or condition of his appliances. The third embraces not only such known risks, but also such other risks as are obvious to one of the servant's intelligence and experience, which the master may assume he fully understands and appreciates from the fact that they are obvious and open to his observation, and hence the servant is chargeable with knowledge. The two last named are sometimes designated as extraordinary risks as distin- guished from ordinary risks. Where neither known or ob- vious, it is uniformly held they are not assumed, and hence the duty on the part of the master, if he would roKeve himself from responsibility, is to give to the servant such instruction and warning as will enable the §3 Introductory. 11 latter to compreliend tlie danger from the particular source, whicli lie in the performance of his duties may reasonably be assumed to encounter. Not only is it essential that the servant have knowledge or be charge- able with knowledge of the defect, but also of the danger that is incident to the defect or naturally may flow from it. These are the general principles appKcable to the doctrine of assumed risk. The diffleulty, as before stated, Hes in their application, in many cases presenting a question of law but more frequently questions of fact. To determine whether in a particidar case the circum- stances present a question of law, the illustrations copiously given are of the utmost importance. The con- sideration of this particular branch of the general sub- ject, involves the important question of the servant's duties with respect to informing himseK of the dangers which are patent that he may encounter. Herein often is presented a question or more or less difficulty. Of course there is always present the question of the exercise of ordinary care on the part of the servant, which includes, as quite generally held, though not uniformly, that he must examine his surroiindings and not go bhndly at his work, entirely heedless of dangers that may lie in his path. This has particular relation to obvious risks. How- ever he is not required to make a critical inspection and may rely to a considerable extent upon the presumption that the master has performed his duty and that which is apparently reasonably safe, is so in fact. A branch of assumed risk sometimes present is that where a defect exists known to the employer and employee, the master promises the employee that the defect will be remedied. The effect of such a promise is to relieve the servant from the risk which otherwise he would assume by continidng the employment for a reasonable time, no time beiug stated in which it might reasonably be presumed the repairs should be made, unless the danger from a con- tinuance of the employment, from the defect, was so im- mediate and imminent that an ordinary prudent person w^ould not have assumed it even for such reasonable time. 12 Master and Servant § 3 Sucli is the general rule. It thus appears, from the mere statement of the rule, that difficult and important ques- tions are involved. It is quite generally held that the promise must be that of the master himself or one with authority in the premises to make the promise. It wiU be seen that this proposition has not been accepted in some jurisdictions and in some cases. The promise must be definite and ordinarily not conditional. What is a rea- sonable time for an expectation that the repairs wiU be made, depends much upon the circumstances and condi- tions of each particidar case. Quite often they present a question of law for the determination of the court. More often perhaps, a question for the jury. Whether the danger is immediate or imminent also presents a ques- tion sometimes for the court and more often for the jury, being one of the exercise of ordinary care. If, however, the employee continues the employment an unreasonable time or for a period beyond a reasonable expectation that the defect will be remedied, he reassumes the risk, which for the time being had been cast upon the employer. The decided eases are apparently conflicting to some extent upon aU the propositions involved. Contributory negligence. Following the chapter on assumed risks in volume two, is the closely allied defense of contributory negligence which is treated of at length. Fellow-servants. Another branch of the doctrine of assumed risk is that which embraces the doctrine of feUow-servants. The particular question involved is the assumption of the risks that are incident to the neghgenee of other servants of the same master engaged in the common employment. It was, at the inception of the rtde which charged the master with habiUty for injuries which his servant might sustain while engaged in the performnnce of his duties in his master's service, declared that injuries occasioned by or through the negligence of his other servants in the same employment was a risk which an employee impliedly § 3 Intkoductoet. 13 assumed upon entering the service. This doctrine was then said to be founded upon principles of public policy, which has been reiterated by courts to the present day. The difficulties encountered in treating this particular branch are many and varied. First, we have the ques- tion of common employment, what constitutes it? The courts are in hopeless conflict with respect to this proposi- tion, courts of different jurisdictions entertaining dif- ferent views, and even the courts of a particular jurisdic- tion are not at aU times consistent. In some the doctrine is that aU servants without respect to grade or rank, who are engaged in or about the same general business, are fellow-servants, while in others the so called department theory is recognized, that is in order to constitute ser- vants feUow-servants, they must be engaged in the same department of the common employment, and in this connection the courts which hold to this ride are in conflict as to what constitutes a separate or distinct department. There are other courts which do no agree with either of the above, and hold to the rule that aU who are in the service of the master in and about his general business, are engaged in a common employment and are f eUow-servants of each other, except those who are superior in rank or grade, with power of direction and control over subor- dinates, who directly represent the master, and they are not feUow-servants of subordinates under their control or direction. There remains another class which is in some respects analogous to the department theory, and that is that those servants only whose work brings them into immediate and habitual association with other servants, are feUow-servants. This is termed the doctrine of con- sociation and is the rule in Illinois and two or three other states. The personal duties of the master is in some an important and conclusive factor, it being the rule that those servants engaged in the performance of such duties are not fellow-servants of those otherwise engaged, as for instance, those servants whose duties are in the mainte- nance and repair of apphances or in connection with the maintenance of the place of work are not fellow-servants 14 Mastee and Servant. § 3 of those wliose duties are in connection with their use. As stated by the courts, such employments are distinct and independent, and therefore not common within the rule; while still others hold to this doctrine with respect to providing apphances or place in the first instance, but hold that it ends there, and that those servants engaged in their maintenance are fellow-servants of those who operate or use them or are engaged about them. It thus appears that this part of the general subject must be treated in part at least by a statement of the rule or doctrine prevaihng in each particular state or jurisdic- tion, and illustrating it by reference to the decided cases in that state. This particular feature of the subject is further comphcated by the enactment of statutes in several of the states, which greatly restrict the doctrine of fellow-servant. More generally such statutes relate to railroad employees, although in some, especially Massa- chusetts and Alabama, they apply to all industries. These statutes are given as weU as the construction the comrts have placed upon them. Scope of employment. There is also involved the question of what is termed "scope of employment." It embraces two propositions, one that of the directing .servant, the other that of the injured servant. The former, whether his act was within the authority vested in him or pertaining to his em- plojrment; the latter, whether the employee was at the time of his injury engaged in the performance of duties pertaining to his employment. If the former had no authority in the premises, the master will not be liable ordinarily for his unauthorized acts. If the latter was not engaged in performing duties pertaining to his employ- ment when injured, the master will not ordinarily be liable to respond in damages. The hmit of an employee's au- thority is governed largely by the particular service he is employed to render. The conditions existing at the time as well as the particular circumstances attending the act are also important features to be considered. A definite rule cannot be formulated. What duties are incidental to § 4 Introductory. 15 an employment would be difficult to state, either with respect to authority to direct or with respect to perfor- mance. With respect to the servant injured, where the question is as to whether he was engaged in the line of his duty at the time, it is not always required that he should be actually at work. It is often a question whether he shall be considered as employed when going to or return- ing from his place of work. Also when being transported on his master's trains. Also when he is upon the premises during the noon hour. These and other situations may present the question. The further question is also oft- times present, whether he is performing a service out- side of his regular employment voluntarily. This latter question and the other questions sometimes involve the question of relation, that is whether at the time of injmy he is considered a servant, although in the general em- ployment of the master. § 4. Statutory provisions. Statutes increasing the HabUity of the master, called "Employers' Liability Acts," have been enacted in some of the states of this country; and in England the statute goes much further than any in this country, since a recov- ery may be had thereunder even where the master has not been guilty of negUgence. In some states the Employer's LiabiUty Acts apply to railroad companies alone, while in other states a special statute governs railroad companies. These statutes have been held constitutional, except in a few particular instances. In 1906, a federal Em- ployer's Liabihty Act was passed, "relating to habihty of common carriers in the District of Columbia and territories and common carriers engaged in commerce between the states and between the states and foreign nations, to their employees."^ However, the United States Supreme Court held the act unconstitutional as regulating interstate commerce, and that the 1. Act June 11, 1906. 16 Master and Servant. § 5 other portions of tlie statute could not be separated therefrom, and a new statute was passed in 1908.^ Whether the statutes are to be liberally or strictly con- strued is the subject of more or less conflicting decisions. In addition to these Employers' Liabihty Acts, which for the most part are for the purpose of abolishing to a greater or less extent the rule of feUow servants, and will be treated of in the chapter on fellow-servants, there are statutes in many of the states for the further protection of servants, such as those relating to safeguarding machinery, requiring the inspection of the place to work or machinery by official or competent inspectors, Unuting the age of employment, etc. The careful practitioner will in every instance consult the statutes of his state in order to ascertain to what extent, if any, they change the existing rules. § 5. Care required of master. It is weU settled that the duty of a master toward his servants is merely to exercise ordinary care.' In other words, an employer does not guarantee or insure the absolute safety of his employees.* In some cases, however, as will be noticed in subse- quent chapters, ordinary care is insufficient where an ordinance or statute specifically requires the performance or omission of a certain act or acts. 2. Employers' Liability Cases, Adm'r, 97 Va. 631, 34 S. E. 525, 207 U. S. 463, 52 L. Ed. 297, 28 46 L. R. A. 367; Norfolk & W. R. Sup. Ct. 141; El Paso & N. E. Co. v. WiUiams, 89 Va. 165, 15 R. Co. V. Gutierrez, 215 U. S. S. E. 522. Not required to furmsh 87, 54 L. Ed. 106, 30 Sup. Ct. 21. guard to protect servant from mob 3. Sievers v. Peters Box & of strikers. Lewis' Adm'r v. Tay- Lumber Co., 151 Ind. 642, 50 N. E. lor Coal Co., 112 Ky. 845, 66 S. W. 877, 52 N. E. 399; Snowdale v. 1044, 57 L. R. A. 447. Master is. United Box Board & Paper Co., however, absolute insurer of ser- 100 Me. 300, 61 Atl. 683; Slater vant's safety from any negligent V. Jewett, 85 N. Y. 61, 39 Am. act of Ms own. Zellars v. Missouri Rep. 627; Oliver v. Ohio River R. Water & Light Co., 92 Mo. App. Co., 42 W. Va. 703, 26 S. E. 444. 107. But servant may assume risk 4. Slater v. Jewett, supra; Nor- of such negUgenee. folk & W. R. Co. V. Stevens' § 5 Intkodtjctory. 17 The master is not an insiu'er against accident but is liable to his servant only in case of negligence;^ and hence where the injury results from a pure accident and there is no negUgence on the part of the employer, the em- ployee cannot recover.^ This duty of exercising reasonable care to protect the servant is not excused by the fact that the employment is necessarily attended with danger;' but the danger of the employment determines, in some cases, the ordinary care required in the case." This subject, as to ordinary care, is treated of more fully in connection with the care required as to particular duties, such as furnishing a safe place to work, etc., in the chap- ters relating to safe place to work and other particidar implied duties. What is ordinary care. Ordinary care has been defined as that diligence which every prudent man takes omder similar circumstances;' the conduct of a man of ordinary prudence under all the circumstances of the case;^" such care as under aU the circumstances of the particular service a carefid prudent man, or officer of a corporation, would exercise under the same or similar circumstances, including all the circum- stances of time, place, and attendant conditions." In one jurisdiction, however, it has been stated that the standard of conduct is that of the ideal prudent man.^^ 5. Western Screw Co. v. Jolm- Co., 40 W. Va. 188, 20 S. E. 922; son, 86 m. App. 89. KnigM v. Cooper, 36 W. Va. 132 6. Fox V. Clearfield Wooden 14 S. E. 999. Ware Co., 211 Pa. St. 645, 61 Atl. 9. Sanders v. Central of Georgia 245; Craven v. Mayers, 165 Mass. R. Co., 123 Ga. 763, 51 S. E. 728. 271, 42 N. E. 1131; Stewart v. 10. English v. Galveston H. & Seaboard Air line Ry., 115 Ga. S. A. R. Co., 22 Tex. Qv. App. 3, 625, 41 S. E. 981. See also chap- 53 S. W. 57. ter on proximate cause in volume 11. Downey v. Gemini Mining one. Co., 24 Utah, 431, 68 Pao. 414 91 7. Illinois Steel Co. v. Ryska, Am. St. Rep. 798. 102 HI App. 347 (affirmed in 200 12. Marks v. Harriet Cotton m. 280, 65 N. E. 734.) MiUs, 138 N. C. 401, 50 S. E. 769. 8. Stewart v. Ohio River R. 1 M. fc S.— 2 18 Mastee and Servant. § 5 Where an employee is working outside of the regular line of Ms employment, as directed by his employer, it has been held that greater care is required on the part of the employer than as if the employee had been working in his regular employment. ^^ In reference to corporations, ordinary care has been held to mean such watchfulness, caution and foresight as, under aU the circumstances of the particular service, a corporation controlled by careful and prudent officers or agents, ought to exercise.^* The care to be exercised must be in proportion to the danger to be avoided or prevented and the consequences which may result from the neglect." Care required as to minor servant. In many of the states statutes have been enacted pro- hibiting the employment of infants under a certain age in all cases or ia particular employments. These statutes are considered in a subsequent chapter in this volume.^* Independent of statute, it has been held that the mere fact that a servant is a minor does not impose on the master any greater degree of care than as if he was an adult." In a subsequent chapter, ia which is considered the duty of instructing and warning servants, the effect of infancy in connection therewith is considered in detail, and it is deemed sufficient in this connection to merely state that where a servant is so yoimg that the master knows or 13. Virginia Portland Cement 839. It was held error to instruct Co. V. Luck's Adm'r, 103 Va. 427, that the law requires of a master 49 S. E. 677. the highest degree of responsibility 14. Darracott v. Chesapeake for the care and protection of an & O. R. Co., 83 Va. 288, 2 S. B. infant employee. Virginia Iron, 511, 5 Am. St. Rep. 266; F. C. Coal & Coke Co. v. Tomlinson's Austin Mfg. Co. v. Johnson, 89 Adm'r, 104 Va. 249, 51 S. E. 362. Fed. 677, 32 C. C. A. 309. In Kansas, however, it has been 15. Republic Iron & Steel Co. held that a higher degree of oare V. Ohler, 161 Ind. 393, 68 N. E. 901. and a greater precaution is required 16. See infra, . where a house servant is an infant. 17. Decatur Car Wheel & Mfg. Larson v. Berquist, 34 Kan. 334, Co. v. Terry, 148 Ala. 674, 41 So. 8 Pac. 407, 55 Am. Rep. 249. § 6 Introductory. 19 should know he has not sufficient discretion or capacity to understand and appreciate the dangers of the business, notwithstanding proper warnings and instructions have been given him, the employer is Uable for injuries resulting to the servant.^* § 6. Negligence as basis of action. Except in England, where the statute provides for compensation irrespective of negUgenee of the master, the rule is that plaintiff (employee) cannot recover unless the proximate cause of his injury was the negUgence of defendant, the employer.^' Violation of statute as negligence. The question has arisen many times as to whether the violation by a master of a statute enacted for the benefit of servants, — such as statutes requiring machinery and elevators to be guarded, forbidding emplosrment of children under a certain age, etc., — of itself gives a cause of action where the statute merely provides for a penalty, and whether the violation of the statute is negligence per se or merely evidence of negligence. In many jurisdictions, the failure of the master to per- form statutory duties imposed on him for the safety of his employees is negligence per se,^" and of itself authorizes a recovery provided the noncompliance was the cause of the injury. ^1 Under some statutes the violation of a statute is not ground for recovery by a servant unless the failure to comply with the statute was wilful. ^^ 18. Chicago & N. W. R. Co. Pelin v. New York Cent. & H. R. V. Bayfield, 37 Mich. 205; Taylor R. C, 102 App. Div. 71, 92 N. Y. V. Wootan, 1 Ind. App. 188, 27 Supp. 468; Klatt v. N. C. Foster N. E. 502, 50 Am. St. Rep. 200. Lumber Co., 97 Wis. 641, 73 N. W. 19. See chapter on proximate 563. cause. 21. Stephen v. Stevens, 66 Hun 20. Brower v. Locke, 31 Ind. 634, 21 N. Y. Supp. 721; Christner App. 353, 67 N. E. 1015; Diamond v. Cumberland & Elk Lick Coal Block Coal Co. v. Cuthbertson, Co., 146 Pa. St. 67, 23 AtL 221. 67 N. E. (Ind. App.) 558; Mos- 22. See Odin Coal Co. v. Den- grove V. Zimbleman Coal Co., 110 man, 185 HI. 413, 57 N. E. 192, Iowa, 169, 81 N. W. 227. See also 76 Am. St. Rep. 45. 20 Master and Servant. §§ 7-9 This question is considered in detail in connection with the duties neglected, in subsequent chapters. § 7. Dangers unforeseen. The general rule is that an employer need not anticipate and guard against dangers which cannot be foreseen in the exercise of reasonable care. " In other words, an employer cannot be considered negUgent for failure to anticipate what no one else under the circumstances woidd have anticipated and guarded against.^* However, the fact that the master could not anticipate the particular injury is immaterial where he could have reasonably anticipated that some injury might result as the natural consequence of his neghgence. ^^ So where a servant was injured by defects in a machine, the master was held Hable although the manner of injury coiild not have been reasonably foreseen as the natxiral residt of the defects. " § 8. Acts of strangers. An employer is not hable to his employee for injuries received from the acts of third persons over which the employer had no control.^' § 9. Illegal employment. Where a servant voluntarily engages in an illegal employment, he cannot recover damages for personal injuries. ^^ 23. Cowett V. American Woolen 24. Martin v. NUes-Bement Co., 97 Me. 543, 55 Atl. 494; New- Pond Co., 214 Pa. St. 616, 64 Atl. castle Bridge Co. v. Steel, 38 Ind. 370. App. 194, 78 N. E. 208. See also 25. Rice v. Dewberry, 93 S. W. chapter on proximate cause, infra, (Tex. Civ. App.) 715. . Immaterial that servant 26. Hoepper v. Southern Hotel injured was a minor. G. A. Duerler Co., 142 Mo. 378, 44 S. W. 257. Mfg. Co. V. DuEnig, 83 S. W. (Tex. 27. Memphis & C. R. Co. v. Civ. App.) 889. However, this Thomas, 51 Miss. 637; Illinois rule has been held not applicable Cent. R. Co. v. Quirk, 51 111. App. in case of the wilful violation of a 607. statute resulting in injury to an 28. Wallace v. Cannon, 38 Ga, employee. Willis Coal & Mining 199, 95 Am. Dec. 385. Co. V. GrizzeU, 100 El. App. 480. § 9 Introductory. 21 However, this rule does not apply so as to preclude an action for injiiries received by a minor under the age fixed by statute.^' 29. See infra, tbis volume. CHAPTER II. WHAT LAW GOVERNS. Seo. 10. In general. 11. Whether foreign statute in con- flict with policy of state where action brought. 12. Where injuries sustained on navigable waters or high seas. 13. Rule applies to contributory negligence. 14. Limitation of actions. See. 15. Law of evidence. 16. Where Uabihty based on com- mon law. Doctrine of North Carohna Court. 17. Adopting interpretation of stat- utes by courts of state where enacted. 18. Laws of sister state must be pleaded and proven. LAW GOVERNING RIGHTS AND REMEDIES. § 10. In General. When an action is brought in one state to recover for a personal injury suffered in another state, the law of the latter governs as to the rights of the htigants, and the former as to the remedy.^ 1. South Carohna & G. R. Co. V. Thurman, 106 Ga. 804, 32S. E. 863; Christianssen v. WiUiam Gra- ver Tank Works, 223 lU. 142, 79 N. E. 97; Chicago & N. W. R. Co. V. Tuite, 44 lU. App. 535; Chicago & N. W. R. Co. V. Johnson, 27 lU. App. 351; Baltimore & O. S. W. R. Co. V. Jones, 158 Ind. 87, 62 N. E. 994; Hyde v. Wabash, St. L. & Pac. R. Co., 61 Iowa 441, 16 N. W. 351, 47 Am. Rep. 820; Brewster v. Chicago & N. W. R. Co., 114 Iowa 144, 86 N. W. 221, 89 Am. St. Rep. 348; Morris v. Chicago, R. I. & Pac. R. Co., 65 Iowa, 727, 23 N. W. 143, 64 Am. Rep. 39; Illinois Cent. R. Co. V. Jordan, 117 Ky. 612, 78 S. W. 426; Turner v. St. Clair Tunnel Co., 121 Mich. 616, 80 N. W. 720, 47 L. R. A. 112; s. c, 111 Mich. 578, 70 N. W. 146, 36 L. R. A. 134, 66 Am. St. Rep. 397; Rick v. Saginaw Bay Towing Co., 132 Mich. 237, 93 N. W. 632, 102 Am. St. Rep. 422; Fogarty v. St. Louis Transfer Co., 180 Mo. 490, 79 S. W. 664; Leazott v. Boston & M. R. Co., 70 N. H. 5, 45 Atl. 1084; Hooper v. Moore, 60 N. C. 130; El Paso & N. W. R. Co. v. Mc- Conius, 36 Tex. Civ. App. 170, 81 S. W. 760. Where, in an actfon prosecuted in one state by a servant against his master to recover for personal injm^es resulting to bim from the neghgence of another ser- vant of the same master, it appear s 22 § 11 What Law Governs. 23 Such is the doctrine which generally prevails. A law providing otherwise was held unconstitutional. ^ § II. Whether foreign statute in conflict with policy of state where action brought. It was said in Mississippi that the right of action for damages given by a statute of another state may be asserted in its courts, because of the coincidence of that statute with that of Mississippi, and also because a right of action of a transitory nature, created by the statute of another state, may be enforced iu Mississippi, if not in conflict with the pubUc pohcy of such latter state.^ This is but the expression of the modern law upon the subject. The Wisconsin court in an early case stated that it was settled law in that state that an action would not he by a servant against his master for injuries in the course of his service caused by the negligence of a co- employee. That where such injury was received in another state, whose statute grants a right of action, no action will he thereof in Wisconsin; the remedy in per- sonal actions for personal injuries being governed by the lex fori.* that the accident causing the injury such right, then the action should occurred in another state, that the be determined by the law of Plor- contract of employment was made ida. If there is neither averment in that state, and that aE the stipu- or proof as to such law, then the lated services were to be performed case wiU be determined according therein, no recovery can be had if to the laws of Alabama. Watford the law of such latter state no right v. Alabama & Florida Lumber Co., of action arose from the transaction, 152 Ala. 178, 44 So. 567. though the laws of the state where 2. Baltimore & O. S. W. R. Co. the action is brought would give fuU v. Reed, 158 Ind. 25, 62 N. E. 488, relief had the accident occurred in 56 L. R. A. 468, 92 Am. St. Rep. such state. Alexander v. Pennsyl- 293; Baltimore & O. S. W. R. Co. vania Co., 48 Ohio St. 623, 30 N. E. v. Jones, 158 Ind. 87, 62 N. E. 994. 69. An employee sustaining an 3. Chicago, etc. R. Co. v. injury in Florida, cannot maintain. Doyle, 60 Miss. 977. an action therefor in Alabama 4. Anderson v. Milwaukee & unless he had such right of action St. P. R. Co., 37 Wis. 321. under the Florida law. If he had 24 Master and Servant. § 11 The court in subsequent cases did not recognize such rule.^ And finally expressly repudiated' it, except as to its determination that the covirts of the state may refuse to enforce even a personal cause of action, which depends upon the statute of another state, radically different from the law of Wisconsin, and repugnant to the public policy of the latter named state.* The mere fact that the law of another state where a personal injury is received, permits a recovery, will not be considered as against the public policy of a state simply for the reason that the laws of the state where the action is brought does not grant a right of recovery.' Thus, in an action brought in one state for injuries suffered in another, if ia the state where the injury was sustained the employee was by the law a vice principal and not a fellow-servant, the courts of the former state wQl be governed by such law.* And the general rule is that where a statute of the state where the injury occurred gives a right of action for per- sonal injuries resulting from the negligence of a fellow servant, a recovery may be had in another state where the fellow servant rule would bar a recovery if the acci- dent had happened ia the latter state. ^ 5. Seamans v. Bjiapp, Stout & 8. Illinois Cent. R. Co. v. Co., 89 Wis. 171, 61 N. W. Harris, 29 So. Miss. 760; CHcago 757, 27 L. R. A. 362, 46 Am. St. & E. I. R. Co. v. Rouse, 178 lU. Rep. 825; Bartlett v. Collins, 109 132, 52 N. E. 951, 44 L. R. A. 410. Wis. 477, 85 N. W. 703, 83 Am. 9. Chicago & E. I. R. Co. v. St. Rep. 928; Brown v. Gates, 120 Rouse, 178 lU. 132, 52 N. E. 951, Wis. 349, 97 N. W. 221, 98 N. W. 44 L. R. A. 410; Herrick v. Minne- 205; Eintgartner v. Illinois Steel apoUs & St. L. R. Co., 31 Minn. 11, Co., 94 Wis. 70, 68 N. W. 664, 34 16 N. W. 413, 47 Am. Rep. 771; L. R. A. 503, 59 Am. St. Rep. 859; Rick v. Saginaw Bay Towing Co., MacCarthy v. Whitoomb, 110 Wis. 132 Mich. 237, 93 N. W. 632, 102 113, 85 N. W. 707. Am. St. Rep. 422; Benedict v. 6. Bain v. Northern Pacific Chicago Great Western R. Co., Raih-oad Co., 120 Wis. 412, 98 104 Mo. App. 218, 78 S. W. 60; N. W. 241. MinneapoHs & St. L. R. Co. v. 7. Walsh V. New York & N. E. Herrick, 127 U. S. 210, 32 L. Ed. R. Co., 160 Mass. 571, 36 N. E. 109, 8 Sup. Ct. Rep. 1176. 584, 39 Am. St. Rep. 514. §§ 12-14 What Law Governs. 25 On the other hand, a statute of the forum making a master Kable for injuries resulting from the neghgence of fellow servants will not be applied where the accident occurred in another state. ^^ § 12. Where iniuries sustained on navigable waters or high seas. Where death occurs through neghgence of another upon the navigable waters, within the jin-isdiction of a state, the laws of the state governing such an action is apph- cable. As to the great lakes, the sovereignty and juris- diction of the states bordering thereon, extends to and includes the limits of such boundaries in the lakes." Where a seaman was injured on the high seas on a German vessel, it was held his right to recover depended on the German statute substituting fixed Uabihty for responsibihty for neghgence. ^^ § 13. Rule applies to contributory negligence. It was held that the law of a foreign country relating to contributory neghgence, related to the cause of action and not to the remedy, and was hence enforceable in Vermont in an action for personal injuries." § 14. Limitation of actions. Such actions being transitory common law actions, the employee can sue the wrongdoer wherever he can find him, but hmitations on such actions are governed by the law of the forum and not by those of the place of the injury." 10. Baltimore & 0. S. W. R. 14. AtcHson, T. & S. F. R. Co. V. Reed, 158 Ind. 25, 62 N. E. Co. v. MiUs, 116 S. W. (Tex. App.) 488, 56 L. R. A. 468, 92 Am. St. 852. In an action brougM against Rep. 293. a railroad company by an employee 11. Bigelow V. Nickerson, 17 for injuries sustained in Canada, C. C. A. 1, 70 Fed. 113, 30 L. R. A. the statute of limitations of Ver- 336. mont, where the action was brought 12. Beyer v. Hamburg Amer. are controlling. A general statute S. S. Co., 171 Fed. (C. C. A.) 682. of Canada provided such an action 13. Morrisette v. Canadian Pa^ must be brought within twelve oific R. Co., 76 Vt. 267, 56 Atl. months. Johnston v. Canadian 1102. Pac. R. Co., 50 Fed. 886. 26 Master and Servant. §§ 15 ,16 § 15. Law of evidence. The law of evidence is lex fori. The statute of a state where an accident occurs, which establishes nothing more than a rule of evidence as to the burden of proof, does not control the question where the remedy is sought to be enforced in another state." § 16. Where liability based on common law. In some jurisdictions it is held that the court of the forum will adopt the common law of the state of the injury, as determined by the decisions of their courts, and that it may be proved by parol, and by the decisions them- selves." In other states and especially in actions brought in the federal courts, the courts will adopt their own interpreta- tion of the common law. In an action brought in one state for an injury sustained in another state, where no statute of the state is pleaded, the rights of the parties as to the merits are to be determined by the common law. While the court of the forum will follow the decisions of the state where the injury was received, in construing the statute thereof, they are not bound by the interpreta- tion placed upon the common law by the comrts of that or of other states." Where propositions of common law as distinguished from statutory rights, are involved, the courts of Iowa are not in accord with the doctrine of Illinois and many other states. A person having a right of action in Ilhnois, if he sue in Iowa, cannot have that right enforced in Iowa according to the common law of Illinois."* 15. Jones v. Chicago, St. P., St. L. R. Co., 131 Ga. 354, 62 S. B. M. & 0. R. Co., 80 Minn. 488, 83 189; New York, N. H. & H. R. N. W. 446, 49 L. R. A. 640. Co. v. O'Leary, 35 C. C. A. 662, 16. MoDeed v. MoDeed, 67 lU. 93 Fed. 737. 545;Chicago & N. W. R. Co. v. 17a. Strong v. Chicago, B. & Tuite, 44 lU. App. 535; Hooper v. Q. R. Co., 129 N. W. (Iowa) 321; Moore, 50 N. C. 130; St. Louis &. Dorr Cattle Co. v. Des Moines S. F. R. Co. V. Weaver, 35 Kan. Nat. Bank, 127 Iowa 153, 98 N. W. 412, 11 Pac. 408, 57 Am. Rep. 176. 918, 102 N. W. 836. 17. Lay v. Nashville, C. & §§ 17, 18 What Law Governs. 27 Doctrine of North Carolina Court. The North Carolina court does not seem to recognize the doctrine of fellow-servant as a part of the common law. By most courts, however, it is termed the Amer- ican common law. That court held that it would not presume in the absence of proof to the contrary, that the rule of fellow-servant is in force in another state (not being a part of the common law), and hence an action under the North CaroUna statute can be maintained in that state for an injury which occurred in Tennessee.^* § 17. Adopting interpretation of statutes by courts of state where enacted. It is settled law that the construction given a state statute, by the courts of that state, not affected by any provision of the constitution or laws of the United States, is binding upon United States courts, which may be called upon to interpret it.^^ And the same rule appKes in the state courts where called upon to interpret the statutes of another state. ^^ § 18. Laws of sister state must be pleaded and proven. The laws of a sister state must be pleaded and proven. A statement of what the particular law is is sufficient without setting out in detail, decisions and opinions, which are but evidence of the law.^^ What the common law of a particular state is must be proven as a fact (in cases where such common law gov- erns). Courts, however, take judicial notice of the common law of their own state. The presumption is, in the absence of proof to the contrary, that the common law 18. Williams v. Southern R. Fed. -873, 34 L. R. A. 393; Dor- Co., 128 N. C. 286, 38 S. E. 893. midy v. Sharon BoUer Works, 127 19. Ex parte Fisk, 113 U. S. Fed. 485. 713, 28 L. Ed. 1117, 5 Sup. Ct. 20. Lay v. Nashville, C. & Rep. 724; Crosby v. Lehigh VaUey St. L. R. Co., 131 Ga. 345, 62 S. E. R. Co., 128 Fed. 193; Dennick v. 189. Central R. Co., 103 U. S. 11, 26 21. CrandaU v. Great Northern L. Ed. 439; lUinois Cent. R. Co. R. Co., 83 Minn. 190, 86 N. W. V. rhlenberg, 21 C. C. A. 546, 75 10, 85 Am. St. Rep. 458. 28 Mastek and Servant. § 18 of a particular state is the same as that of the state where the court is sitting. ^^ The cominon law may be proven by parol evidence. The usual course is to make such proof by the testimony of competent witnesses, instructed iu the law under oath. As a general rule the decisions of courts of justice are evidence of what is the common law. ^^ When it is shown by witnesses themselves that the knowledge they are testifjdng to is derived from the iden- tical reported decisions in evidence in the case, their construction of what the law is as announced by those decisions becomes immaterial. The decisions themselves are the best evidence of what they contain. ^* It becomes the duty of the court as in the case of any other documentary evidence to construe the decisions. ^^ 22. St. Louis & S. F. R. Co. v. don 237; Chicago & N. W. R. Co. Weaver, 35 Kan. 412, 11 Pac. 408, v. Tuite, 44 lU. App. 535. 57 Am. Rep. 176. 25. Alexander v. Pennsylvania 23. McDeed v. McDeed, 67 Co., 48 Ohio St. 623, 30 N. E. 69; El. 545. Cobb v. Griffith Adams Co., 87 24. Church V.Hubbard, 2 Cran- Mo. 90; Kline v. Baker, 99 Mass. 253. Existence oe Relation. 29 CHAPTER III. EXISTENCE OF RELATION. Seo. 19. Necessity for relationsMp and when, it exists in general. 20. Righ-t of selection. 21. Substitute in place of servant. 22. Substituted master. 23. Servant employed by one to act for another. 24. Servants of different persons or companies using same track or grounds. Liability of licensor for in- juries to servants of licensee. Negligence of servants of company causing the in- jury as risk assumed. Trains of one company under control of another com- pany. Where employees of pro- prietary company injured by negligence of servants of lessee. Use of coTTiTTion track at terminals. Doctrine in case of private track. Interchange of cars. Liability as joint and several. Liability of lessee company for injury to its servants caused by defective tracks or appliances of lessor. Employee of one injured upon premises of another. Two companies using de- livery track. 25. Servants working tempora- rily for another. Servants' consent essential to change of master. Sec. Minor child put to work. 26. Existence of relation outside of actual working time. During noon hour. After close of actual work for the day. Servant working over time or out of hoiirs. Going to or returning from day's work. Temporarily suspending work. Where not acting as servant. 27. Servants injured on train, ves- sel or other conveyance when not employed thereon. Employee riding for pleasure on Sunday. Rule not applicable to ser- vants of contractor. Employee neither going to nor returning from work. Employee carried occasion- ally in return for services. Effect of failure to pay fare. 28. Servants of another working upon train or vessel. Express messengers. News agents. Postal clerks. Proprietor of bar on vessel. Sleeping car porters. '29. Servants of different contrac- tors or persons. Servants of different em- ployers; master not liable for negligence of servant of another. Servant injured by sub- contractor's defective ap- pliance. 30 Masteb and Servant. §19 Seo. Sec (. Owner furnishing machinery Employee acting as chief of to contractor. of volunteer fire company. Seller of appliance. 32. Authority of employee to em- 30. Servants of lessees. ploy assistants. 31. Volunteers and persons invited Conductor. to assist. Brakeman. Employee taking up new Engineer. work. Station agent. Employee doing forbidden Agent. act. 33. Public offlcers. Where one assists servants Policeman acting under spe- of another at their request cial appointment. to expedite his own busi- 34. Persons working under public ness or that of his master. oflBcers. Persons learning duties. 35. Receivers. 36. Convicts. § ig. Necessity for relationship and when it exists in general. In order to charge one as master for personal injuries received by an alleged servant, plaintiff must first show that the relation of master and servant existed between the parties at the time of the injury.^ The question whether the relationship of master and servant exists has arisen more frequently where third per- sons have attempted to hold an alleged master Uable on the groimd of the wrongful acts of his alleged servant. So far as the rule is concerned, however, it is immaterial, on principle, whether the action is one by an alleged ser- vant against the alleged master, or by a third person against the alleged master. The relation of master and servant only exists where the person sought to be charged as master either employed or controled the servant, or had the right of control over 1. Ringue v. Oregon Coal & Navigation Co., 44 Or. 407, 75 Pac. 703; Larson v. Centennial Mill Co., 40 Wash. 224, 82 Pac. 294, 111 Am. St. Rep. 904; Western Wheel Works v. Stachnick, 102 lU. App. 420. See also Georgia Railroad & BanMng Co. v. Strauss, 110 Ga. 189, 35 S. E. 332. Exist- ence of relation must be pleaded. Logan V. Central Iron & Coal Co. 139 Ala. 548, 36 So. 729; Walton v. Lindsey Lumber Co., 145 Ala. 661, 39 So. 670. Contra, see Jones v. Old Dominion Cotton MiUs, 82 Va. 140, 3 Am. St. Rep. 92. § 19 Existence op Eelation. 31 hiTTi at the time wheii the injury happened, or expressly or tacitly assented to the rendition of the particular service by him. He must at the time have had the right to direct the action of the servant and to accept or reject its rendition by him. ^ The conclusive test of the relationship is whether the alleged master had the right to control the action of the person doing the alleged wrong, at the time of and with reference to the matter out of which the alleged wrong sprung. ' For the relation to exist, so as to make the master re- sponsible, he must not only have the power to select the servant, but to direct the mode of executing, and to so control him in his acts in the course of his employment as to prevent injury to others. * As stated in a late case, "The relation exists when the master not only has the right to select his servant, but has the power to remove and discharge him, with or without cause, and to direct what shaU be done, and the m.anner of doing it."^ If the right to control does not exist, the doctrine of respondent superior is not apphcable.* The right to control involves the power to discharge, and hence it is said that the relation of master and ser- vant win not exist unless the power to discharge exists.'' 2. Mound City Paint & Color definition of servant is concerned, Co. V. Conlon, 92 Mo. 221, 4 S. W. by the codes of several of the west- 922. em states. 3. Quinn v. Kansas City, M. 4. Quinn v. Kansas City, M. & B. R. Co., 94 Tenn. 713, 30 S. W. & B. R. Co., supra. 1036, 28 L. R. A. 552, 45 Am. St. 6 McCalligan v. Pennsylvania Rep. 767; State GiUespie, 62 Kan. R. Co., 214 Pa. St. 229, 63 Atl. 469, 63 Pac. 742, 84 Am. St. Rep. 792, 6 L. R. A. (N. S.) 544, 112 411; Pioneer Fireproof Const. Co. Am. St. Rep. 739. v. Hansen, 176 Rl. 100, 52 N. E. 17. 6. Morgan v. Bowman, 22 Mo. See also Singer Mfg. Co. v. Rahu, 538. 132 U. S. 518, 33 L. Ed. 440, 10 7. Pioneer Fireproof Const. Co. Sup. Ct. Rep. 175. This rule is v. Hansen, 176 III. 100, 52 N. E. 17. practically reiterated, so far as the 32 Masteb and Sbevant. § 20 The term "employee," as generally used, is synonymous "with "servant."^ But in another case it is held that the right to employ and discharge the servant is not conclu- sive but merely an element tending to show a right to control.^* The relationship cannot exist without the express or imphed assent of both parties,' but there need be no formal or express employment,^" nor compensation paid or expected." § 20. Right of selection. No one can be held responsible as master who has not the right to choose the servant from whose acts the injury flows. ^^ Where such right does not exist, as where a person hires a rig and team from a Uvery man, the latter furnishing the driver, and damage is caused by the negligence of such driver, his negligence cannot be imputed to the person hiring the conveyance, since he is not the latter's servant, but still a servant of the hvery man.^* 8. Hand v. Cole, 88 Tenn. 400 pany to load it on ears at the wharf, 12 S. W. 922, 7 L. R. A. 96. both being done in one operation, 8a. Roe v. Winston, 86 Minn, the appliance used belonging to the 77, 90 N. W. 122. railroad company, and its servants 9. Chicago & B. I. R. Co. v. had control of the wharf, employed Argo, 82 lU. App. 667. See also the engineer and the fireman of the Atlanta & W. P. R. Co. v. West, gang, and had employed and dis- 121 Ga. 641, 49 S. E. 711, 67 L. R. charged others of the gang, the A. 701, 104 Am. St. Rep. 179. vessel paying its dues to such cor- 10. Aga V. Harbach, 127 Iowa, poration's cashier, who retained a 144, 102 N. W. 833, 109 Am. St. part for the use of the apphances Rep. 377; Missouri, K. & T. R. Co. and gave the rest to the foreman for V. Reasor, 28 Tex. Civ. App. 302, division among the gang, and while 68 S. W. 332. a cargo was thus being discharged 11. Aga V. Harback, supra. from the vessel and loaded on the 12. BosweU V. Laird, 8 Cal. oars a rope broke injuring one of 469, 68 Am. Dec. 345 ; Du Pratt v. the gang, it was held that a jury Lick, 38 Cal. 691; Lewis v. Long was warranted in finding that the Island R. Co., 162 N. T. 52, 56 person injured was in the employ N. E. 648; Pioneer Fireproof of the railroad company. Daley Const. Co. V. Hansen, 176 IE. 100, v. Boston & Albany R. Co., 147 62 N. E. 17. Where it was the duty Mass. 101, 16 N. E. 690. of a vessel to discharge coal upon a 13. Lewis v. Long Island R. wharf, and that of a raihoad com- Co., 162 N. Y. 52, 66 N. E. 548. § 21 EXISTENCB OF Eelation. 33 And where one employs an expressman to do his de- livering, the latter furnishing his own horse and wagon, the relation of master and servant is not thus created, and the former is not liable for injuries to another caused by the neghgence of such expressman. ^^ § 21. Substitute in place of servant. The relation of master and servant ordinarily exists between an employer and a substitute hired by an em- ployee with the consent of such employer, and such sub- stitute stands in the regular employee's place, with all his responsibihties and liabilities, so far as the employer or master is concerned, and one who would be a fellow- servant of such regular employee is a feUow-servant of such substitute, though no contractual relation exists between the substitute and the master, and though such regular employee is alone responsible for the wages of the substitute. ^^ Thus, where one engaged to do certain labor on ship- board sends his servant to do the required work iu his place, he is to be regarded as a fellow-servant of the ship's carpenter." The master's duty towards such a substitute is the same as towards employees directly employed by him, including the duty of fiuTiishing a reasonably safe place to work, reasonably safe appliances and to warn him of dangers incident to the work which are not assumed. Knowledge, however, of dangers known to the servant whose place he takes, is not chargeable to such a sub- stitute.^^ In one case it was held that a stevedore employed by another who has contracted to unload a vessel, can 14. Burns v. MieMgan Paint 16. Saunders v. The Coleridge, Co., 152 Mich. 613, 116 N. W. 182, 72 Fed. 676. 16 L. R. A. (N. S.) 816. See also 17. Aga v. Harbach, 140 Iowa, Murray v. Dwight, 161 N. Y. 301, 606, 117 N. W. 669; s. c, 127 Iowa, 55 N. E. 901, 48 L. R. A. 673. 144, 102 N. W. 833, 109 Am. St. 15. Anderson v. Ginneau, 9 Rep. 377. Wash. 304, 37 Pao. 449. 1 M. & s.— 3 34 Mastbe and Seevant. § 22 recover for injuries sustained by defective appliances furnished him by the vessel, upon the same evidence which would enable his employer to recover, although there is no privity of contract between the ship owner and him; and that they were imder the same obhgations to him as they were to his employer, and what would be negh- genoe to one would be negligence to the other." § 22. Substituted master. The master, however, cannot escape hability to his servant for negligence by relegating him to a third party, the servant continuing the original employment without knowledge of a change in the relation between him and his employer. 19 And in the case of a railroad company which has suc- ceeded to and assumed control of the property of its predecessors, it cannot escape liabihty to employees of the old company for negligent acts causing injury, though such employees are not apprised of the change. It is not so much a question of contract rights as of duty owing. ^^ It was held, however, where a government contractor assigned the contract to a corporation of which he was a large stockholder, and thereafter he employed a work- man, not disclosing for whom he was employed, and such employee was injured through the negligence of the super- intendent of the corporation, that the contractor was not hable.^'i The contrary was evidently held by another court and the doctrine declared that one hiring an employee, not disclosing his agency, is Hable for neghgence causing injury to the same extent as if he in fact was the principal. ^'^ 18. The Rheola, 19 Fed. 926. em R. Co., 146 Mich. 457, 109 N. It would be otherwise if the steve- W. 847. dore was an independent con- 21. Patton v. McDonald, 204 tractor. The Dago, 31 Fed. 574. Pa. St. 517, 54 Atl. 356. 19. Missouri K. & T. R. Co. 22. Morris v. Malone, 200 lU. V. Ferch (Tex. App.), 36 S. W. 132, 65 N. E. 704, 93 Am. St. Rep. 487. 180. 20. McClure v. Detroit South- § 23 Existence of Eelation. 35 § 23. Servant employed by one to act for another. Where an action was brought against several persons as the "proprietors and bidlders" of a church, by one who was working on the construction of the church, for per- sonal injuries alleged to have been received through negligence in its construction, and the evidence was to the effect that such defendants were not proprietors of the building and had no interest in it either as owners or con- tractors, but that some of them were merely commis- sioners and members of the church, and that the others were engaged as laborers in the construction of the church, and that plaintiff was employed, if at all, by the com- missioners and superintendent, not on their own account, but for the church as an organization, it was held such persons were not his employers nor were they liable to him for his injuries.^' But the relation of master and servant was held to exist where the latter was employed, not by the master directly, but by an employee in charge of a part of the master's busi- ness (roller boss in mill) with authority to engage assist- ance therein, and the fact that the subordinate employee engaging such servant received compensation propor- tioned to the work done, did not affect that relation, nor the fact that he was paid by such subordinate.^^ One employed by a railroad company to board a bridge crew in cars furnished by the company, under an agree- ment that each man should pay a special sum per day for board, and in case any of the men failed to pay, the com- pany would deduct the amount from their wages, was held to have been in the service of the company, and the company owed her the same duty in respect to her safety while in the cars as to other employees. " But one employed by a railroad company to do general work at a station, including the handUng of express 23. WUson V. Clark, 110 N. C. 25. Tinkle v. St. Louis & S. F. 364, 14 S. E. 962. R. Co., 212 Mo. 445, 110 S. W. 24. RummeU v. DUworth, 111 1086. Pa. St. 343, 2 Atl. 355, 363. 36 Mastbe and Servant. § 24 matter, under a contract between such company and an express company, is not a fellow-servant of an employee of such express company, the two not being in the employ or under the control of the same master. ^^ § 24. Servants of different persons or companies using same track or grounds. The relation of master and servant in no sense exists as to servants of another company or proprietor, engaged with servants of such master in the use of the same track, grounds or apphances. Therefore, where a servant of one such company is injured by the actionable negKgence of the agent or servant of the other, no question arises in- volving the relation of feUow-servants; and it makes no difference in the application of the rule that the negligent act or conduct related to the character or safety of the appliance which each company was jointly or in common using, nor is it material that the servant's employer owed him a positive duty in relation to the furnishing for his use a reasonably safe place and reasonably safe apphances. ^' Thus, a person employed as a track repairer by one railroad company, is not to be considered the servant of another company using by permission the tracks of the former. ^* Nor are employees in the service of a railroad company who may be injured by defects in the road bed of another company, whose tracks it is using, in any sense a servant of the latter. 28 Nor are the employees of a railroad company, which 26. Hopper v. Southern Express Morgan, 40 Neb. 604, 59 N. W. 81 ; Co., 133 N. C. 375, 45 S. E. 771. Chicago & E. I. R. Co. v. O'Connor, 27. Gross v. Pennsylvania, P. 119 lU. 586, 9 N. E. 263; SuUivan v. & B. R. Co., 62 Hun 619; 16 N. Y. Tioga R. Co., 112 N. Y. 643, 20 N. Supp. 616; Noonan v. New York E. 569, 8 Am. St. Rep. 793. Cent. & H. R. Co., 131 N. Y. 594, 28. Catawissa R. Co. v. Arm- 30 N. E. 67; Bosworth v. Rogers, strong, 49 Pa. St. 186. 27 C. C. A. 385, 82 Fed. 975; Saw- 29. Snow v. Housatonic R. Co., yer v. Rutland & B. R. Co., 27 Vt. 8 Allen (Mass.) 441, 85 Am. Dec. 370; Omaha & R. V. R. Co. v. 720. §24 Existence oe Eelation. 37 under contract uses the tracks of a depot company, fellow- servants of the servants of such depot company. 2° The power of control is the test of hability in such cases as well as in others. '^ 30. Brady v. CMcago & G. W. R. Co., 52 C. C. A. 48, 114 Fed. 100, 57 L. R. A. 712. 31. The question was involved and determined in an early case in Vermont. A railroad company, un- der an agreement witli another, operated its trains upon a section of the latter's track, from which diverged a side track, which side track was under the exclusive con- trol of the latter. An engineer on one of the trains of the former re- ceived injuries occasioned by the negligence of the servants of the owners of the track in leaving the switch at the intersection of the main and side tracks open. His action was brought against the latter company. It was contended on the part of such company, that their duty in respect to the prem- ises was governed by contract with the other company, to which alone it was responsible; and also that the injured servant must seek redress from the master in whose employ he was, when the question of liability would be determined by the law regulating the liability of a master to his servant. That in any event, unless the servant had a right of action against his master, he could not recover in the action brought against the defendant. It was said the gist of the action did not arise upon contract between the parties, but from the mere observance of a duty imposed by law. The fact of the existence of a contract was only material as showing that the plaintiff was law- fully upon the road at the time, and was not a trespasser. The rule was applied that it was the duty of the company to keep its road in a safe and proper condition for use, and to exercise that care in the management of the switch as rea- sonably would prevent injiu^r from that source. The obligation to per- form that duty was as co-exten- sive as the lawful use of the road, and was required as a matter of public safety. This duty is created by law, and exists irrespective of any contract. As to those duties which involve the safety and secur- ity of those who are in the lawful use of the road, they are of a general and public character, and for their non-performance any person partic- ularly injured can sustain his ac- tion. The principles of fellow- servant and common employment were not in the ease, nor could it be said that the train of which the plaintiff was engineer became pro haec vice the train of the defend- ants. Sawyer v. Rutland &B.R. Co., 27 Vt. 370. Where a coal train of a railroad company, whose tracks were located near the docks of the coal company, was delivering coal to the latter company, and a brake- man of such coal company, while engaged in coupling ears of the traia of such railroad company, was injured by the negligence of such raUroad's engineer, it was held he was not a feUow-servant of the engineer. Central RaUroad Co. of 38 Masteb and Seevant. §24 Liability of licensor for injuries to servants of licen- see. The general rule is, though not followed in all cases, that the proprietary company is liable in damages for injuries caused to the servants of another company using its tracks by permission or under contract, by the negh- gence of its own servants.'^ Thus where two railroad companies jointly occupy the same grounds, such as depot grounds, switch yards and of New Jersey v. Stoermer, 2 C. C. A. 360, 51 Fed. 518. It was held that a railroad company did not bear the relation of master to a per- son or his employees who wei j engaged in removing, by the com- pany's permission, upon its tracks, by means of grade and brakes alone, cars which had been hired to such person, for injuries sustained in such service by reason of the negli- gence of their employer or of their feUow-servants. Hanna v. Chatta- nooga & N. R. Co., 88 Tenn. 310, 12 S. W. 718, 6 L. R. A. 727. An employee, who was injured on the line of the Northeastern Railroad in Georgia, claimed that he was an employee of that company, while it was claimed by the company he was in the employ of the Richmond & DanviUe Company, and was hired by the latter to work upon the lines of the former which it was operat- ing. The evidence in brief was the testimony of the plaintiff that he kept the books at one of the defend- ant's stations for fourteen days, from which it appeared the accounts were kept in the name of the Rich- mond & Danville Company; that he made his remittances to such company, and may possibly have been paid by it, but that he did not know that it was operating the road; that he afterwards became a brakeman on the train of a con- ductor who had been for a long time in the defendant's employ; that the cars were marked with the name of such company, and that the su- perintendent to whom he applied for his position was the superintend- ent of both companies. The time schedules published in the news- papers were headed by the name of the defendant and were separate from those of the operating com- pany. The proprietor of the news- paper received separate passes for their publication. It was held that the testimony as to which company was the employer was suf&eient to go to the jury, and that it was error to grant a nonsuit. Barnett v. Northeastern R. Co., 87 Ga. 199, 13 S. E. 646. 32. Georgia R. & B. Co. v. FriddeU, 79 Ga. 489, 7 S. E. 214, 11 Am. St. Rep. 444; Sawyer v. Rutland & B. R. Co., 27 Vt. 370; Robertson v. Boston & Albany R. Co., 160 Mass. 191, 35 N. E. 775; Ziegler v. Railway Co., 52 Conn. 543; Phillips v. Chicago, M. & St. P. R. Co., 64 Wis. 475, 25 N. W. 544; Omaha & R. V. R. Co. v. Morgan, 40 Neb. 604, 59 N. W. 81 ; Kmian v. Augusta & K. R. Co., 78 Ga. 749, 3 S. E. 621. § 24 Existence of Eelation. 39 tracks, it was said each company is bound to exercise ordi- nary care to prevent injuring the employees of the other, and if the employee of one company, while in the dis- charge of his duties upon such grounds, and without neg- ligence on his part, is injured by the negligence of the employees of the other company, such company is hable therefor. This was held where a boy engaged as a car cleaner of one company, while passing under some cars standing on the track, was injured by an engine of the other company backing against such ears without giving any signals.'' Where an employee of a railroad company is injured while on the premises of another railroad company through the negligence of the employees of the latter company, it is enough for the plaintiff to show that he was lawfully there. He is not bound by the terms of the agreement between the two. companies. This was held where an engineer of the lessee company was injured while the servants of the other company were attempting to place his engine, which had become derailed, upon the track, by the alleged negligence of such servants in the manner of doing the work.'* 33. Omaha & R. V. R. Co. v. pany, that she could not maintain Morgan, 40 Neb. 604, 69 N. W. 81. the action if the deceased was free 34. Robertson v. Boston & from negligence. It was not deter- Albany R. Co., 160 Mass. 191, mined whether he was an employee 65 N. E. 775; Zeigler v. Railway of the latter company which was Co., 52 Conn. 543; Philadelphia in charge of the train. It was W. & B. R. Co. V. State, 58 Md. merely said it was not clear that he 372. Where a brakeman of a rail- was. BaUian v. Augusta & K. R. road company was sent to accom- Co., 78 Ga. 749, 3 S. E. 621. Evi- pany a train to deliver a load of dently it was the same ease that lumber at a mill located on the was before the supreme court a few line of another railroad, and while months later. No reference is made on this mission, upon the train to the foregoing decision. The which was in charge of the em- facts stated differ in this: That ployees of the latter company, the in the latter appeal or case it is ear upon which he was riding was stated that the train was in charge derailed, owing to the bad condition of the employees of the company of of the track, and he was killed, it which the deceased was an em- was held, in an action brought by ployee, and was operating the train his widow against the latter com- upon the track of the other com- 40 Master and Sebvant. §24 'Negligence of servants of company causing the injury as risk assumed. Tlie doctrine of assumed risk is generally confined to the relation of master and servant. In other cases, more properly, the doctrine of contributory neghgence would apply. It was held, however, that where two companies are using the same track under proper rules and regula- tions as to each, the negligence of the employees of one company causing the injury to another is, so far as the latter company's responsibihty is concerned for the act, a risk assumed by its servants. ^^ It was later stated by the same court, that the relation of master and servant does not exist between a railroad company and an employee of a third party working upon its track, in performing duties relating to the business of such third party, and therefore the rule of assimiption pany by permission. It was held that he was not an employee of the company owning the track, and the following conclusions were reached and stated: 1st. That he was an employee of the road whose trains were being operated upon the tracks of the other, and that the only obligation that the latter road was under to him was to furnish bim a safe track on which his train might be safely run, and if it was in fault in this respect, and he was injured solely by the defect Lu its track, the plaintiff would be en- titled to recover. 2d. If the iu- jury to the deceased was occasioned solely by the defect in the trucks of the car which was owned by the company of which he was an em- ployee, he coidd not recover. 3d. If the injury was caused both by the defect in the track and the de- fect ia the trucks, then the plain- tiff would be entitled to recover in proportion as the defect in the track, compared with the defect in the trucks, contributed to the injury. The company owning the track was liable to the deceased as a passenger, and if the injury was caused solely by a defect in the track, and he was not negligent nor could have avoided the iajiuy by the exercise of ordinary care and diligence, the plaintiff would be entitled to recover the amount of damages he sustained. If he was negligent, but could /not have avoided the injury caused by the defendant's negligence by the exer- cise of ordinary care, then the dam- ages should be diminished as in case of contributory negligence. The doctrine of comparative negligence prevails in Georgia in cases other than those of employees. KiUian V. Augusta & K. R. Co., 79 Ga. 234, 4 S. E. 165, 11 Am. St. Rep. 410. 35. Chicago, B. & Q. R. Co. v. Clark, 92 111. 43. § 24 Existence of Eelation. 41 of risks has no application. The conduct of such em- ployee is the subject of contributory negHgence.^* Where a brakeman, whose duty it was to uncouple cars upon tracks known to him to be unblocked and dangerous, which tracks the railroad company employing him had a a right to use, under contract with the manager of another railroad company, who owned them, while so engaged caught his foot in a frog and was injured, it was held he assumed the risk. To the argument that he was not the servant of the company which owned the track and against which he brought his action, it was said: "What- ever the obligations of the defendant may have been un- der the contract, with that company, he was imder no greater obhgation to its servants to furnish a suitable road for them to work upon that he was under to his own ser- vants. The plaintiff in going to work upon the tracks at the invitation of the defendant contained in the contract with the Troy and Boston company, assumed as against the defendant, the obvious and known risks of the employ- ment arising from the defective construction or condition of the road as fully as if he had gone upon the tracks under a contract with the defendant as his servant."" Trains of one company under control of another company. It was held that where one company uses the tracks of another imder a lease which provides that its trains shall be under the control of the yard master of the lessor com- pany, such yard master becomes its servant for the time being, and it will be hable for an injury caused another from the negligent acts of such yard master, the same as if he was its own employee, upon its own road. '* In another case, a raihoad company used a portion of the tracks of another raUroad company under an agree- ment. The operation of such trains while on the said 36. Pennsylvania R. Co. v. 38. Wabash, St. L. & P. R. Backus, 133 lU. 265, 24 N. E. 563. Co. v. Peyton, 106 HI. 534, 46 37. Wood V. Locke, 147 Mass. Am. Rep. 705. 604, 18 N. E. 578. 42 Masteb and Seevant. ■§ 24 tracks was under the control of tlie train dispatcher of the latter company and governed by its rules and regulations. A brakeman on one of the trains of the former company was killed by such train running into the rear end of a train of the latter company during a dense fog, caused by the alleged negligence of the servants and agents of the latter company. It was held that the employees of the two companies were not fellow-servants, as neither cor- poration had control over the men in the employ of the other, except that upon a few miles of railroad the train- men of the lessee company were required to obey the rules and regulations prescribed by the general manager of the defendant for both companies. The several em- ployees of each company were paid by their respective companies. The agreement between the two companies imposed obligations and duties from each to the other, and consequently to the respective trainmen of each. ^^ Where a railroad company whose road formed a junc- tion with another road intrusted a person employed and paid by such other company with the business of attending to its trains at such junction, it was held that the fact such person was employed by such other company did not change his relation as a servant of the former or release it from damages caused by his negligence. *" The plaintiff was a locomotive engineer in the employ of another railroad company which used defendant's tracks. He was operating one of his employer's trains on defend- ant's tracks, under the orders of defendant's train dis- patcher to meet one of defendant's trains at a certain point. The engineer of defendant's train violated his orders and ran by the meeting point. A colUsion was the result, in which the plaintiff was injiu"ed. It was held that the plaintiff and the engineer of the defendant's train were not fellow-servants.*^ 39. PhiUips V. Chicago, M. 41. Texas & P. R. Co. v. & St. P. R. Co., 64 Wis. 475, 25 Easton, 2 Tex. Civ. App. 378, 21 N. W. 644. S. W. 575. 40. Taylor v. Western R. Co., 45 Cal. 323. § 24 Existence of Eelation. 43 Where employees of proprietary company injured by negligence of servants of lessee. It was held that where two companies use the same track, though owned by one, such track for the time being is to be considered the track of each company using it, and the proprietary company is not responsible to its em- ployees for personal injuries which they sustain by rea- son of the negUgent use of the track by the employees of the other company. The redress for such injuries is against the company whose employees are at fault. *^ It was subsequently held, however, that a railway company permitting, by contract or otherwise, another railway company to use a section of its main Une, not at a terminal point, but to reach such point, is liable to one of its own employees for a personal injury resulting to him from the negligence of the latter company in running its trains over and upon the section used in common by both companies, it not appearing that the negligent company had any legislative authority to adopt and use any part of the main hne of the other company. In such case both companies shoidd be considered as using the franchise of the one owning the Une.^' The distinction between the two cases is that in the former the track used in common was at a terminal point, whUe in the latter such was not the fact. Use of common track at terminals. Two or more chartered railroad companies whose lines terminate at the same point, that is, at the same town or city, are not bound as a matter of law to have and to use separate terminal facilities, but may within the corporate limits use the same track in common, with or without com- mon ownership; and when they do so, a track thus laid, though the exclusive property of one of such companies, is for the time being the track of each company so using it, 42. Georgia R. & B. Co. v. 43. Central R. & B. Co. v. FriddeU, 79 Ga. 489, 7 S. E. 214, Passmore, 90 Ga. 203, 15 S. E. 760. 11 Am. St. Rep. 444. 44 Mastee and Servant. § 24 and the proprietary company is not responsible to its employees for personal injuries wliicli they sustain solely by reason of the negligent use of the track by the employ- ees of another company. The redress for such injuries is against the company whose employees are at fault. ^* Doctrine in case of private track. A manufacturer through whose works a railroad switch track is biiilt, is not responsible to his servants arising from the negUgence of the railway operatives in switching cars thereon, he having no control of their operations." The engine crew of a railroad company going upon the private track of a shipper of freight at his request to cou- ple and move cars for him on his track, under his orders, are, diu-ing the time thus engaged, the servants of said shipper, and hence the raOroad company is not liable for an injury occasioned an employee of such shipper while performing such duty, having given notice to the shipper of their readiness to proceed with their work. They were not bound to give notice to each employee. The injured servant was at work under one of the cars and injured by 44. Georgia R. & B. Co. v. mit another person or corporation Friddell, 79 Ga. 489, 7 S. E. 214, 11 to run steam cars over itig road, it Am. St. Rep. 444. is liable to third persons for dam- The case of Macon & A. R. ages caused by the negUgence of Co. V. Mayes, 49 Ga. 355, 15 such person or corporation, the Am. Rep. 678, is distinguished on same as though the company had the ground that there the negligent itself been moving the cars. Hence company was using the franchise as it was held that such a company well as the track of the proprietary owning the road was liable to a company, and Coggins v. Central R. fireman of a construction company Co., 62 Ga. 685, 35 Am. Rep. 132, using its track, who was injured on the ground that the negligence by reason of a collision with another was that of an employee of the train operated also by such con- proprietary company and the in- struction company. Macon & jury was to an employee of a tele- A. R. Co. v. Mayes, 49 Ga. 355, 15 graph company. Am. Rep. 678. It is also held that if a rail- 45. Breeze v. MacKinnon Mfg. road company sees fit to per- Co., 140 Mich. 372, 103 N. W. 908. § 24 Existence op Eelation. 45 compact of the ears, the crew having no knowledge of his being there. ^^ Interchange of cars. Where two railroads have a traffic interchange of cars, if one sets loaded cars on the track of the other at an unusual time of the night, and does not give notice or put out danger signals, whereby an employee of the other is killed by collision with the obstruction, it is liable in damages for the negligence. It seems that both compan- ies may be liable in such case; the company by which deceased was employed because it must furnish a clear track, or because the other company is pro haec its agents or servant in this matter. " Liability as joint and several. Where two or more persons or corporations are operating a railroad, their liability to an employee for an injury resulting from defective machinery fxu-nished for use in the course of the employment is several as well as joint, and an action is maintainable against either one of them." Liability of lessee company for injuries to its servants caused by defective track or appliances of lessor. The question here involved is one which presents a conflict of principles. It is conceded that it is the personal duty of the master to exercise reasonable care to furnish his employees a reasonably safe place of work, and ordi- narily it includes a reasonably safe track. With respect to other appliances, that the master's duty extends to such as he may not own, but which he furnishes for his servant's use. On the other hand, it is familiar law that the master is not responsible for injuries to his servant sustained by him while performing services for his master upon the 46. Melnerney v. Delaware & 47. Loekhart v. Little Rock & Hudson Canal Co., 151 N. Y. 411, M. R. Co., 40 Fed. 631. 45 N. E. 848. 48. Kain v- Smith, 80 N. Y. 458. 46 Master and Servant. §24 premises of another, caused by defects therein. A raihoad company having merely the right to operate its trains upon the tracks of another company, in the absence of express provisions, has no authority or control over such tracks, and can neither change or repair. What principle there- fore should be apphed where one of its servants is injured by the neghgent condition of the track owned by another upon which it operates its trains? It was stated by a federal court that in so far as the Kabihty of a railroad company to one of its employees by reason of a defective track is concerned, it is immaterial that the track was owned by another company, so long as it appears that the employee's injuries were sustained while the company by which he was employed was using it. ^' And this seems to be the general rule adopted by the courts.^" 49. Smith v. Minneapolis & St. L. R. Co., 18 Fed. 304. 50. The supreme court of Wis- consin has held that the rule in respect to carriers of passsengers and freight was applicable, in sub- stance, that where one railroad company uses the track of another company for the purpose of trans- porting passengers or property, the company transporting the persons or property is liable for any dam- ages that may be sustained caused by defects in the road of the other company so used, or by the negli- gence of the' servants or employees of such other company occurring during such transportation. Stet- ler V. Chicago & N. W. R. Co., 46 46 Wis. 497, 1 N. W. 112. A cir- cuit court of appeals, while stating the rule of liability with respect to passengers, evidently did not apply it. After stating that the reason for such rule rested upon contract, it is stated: "There is, however, no such contract between the rail- road company and its employees. Their relations and their liabilities are governed by the relative duties imposed upon them by law." The court, while stating that the ser- vants of the respective companies are not fellow-servants, applies the well-known doctrine of assumed risk. There it is stated: "They (the servants) join in a dangerous occupation. The servants know its dangers as well as the master. If they are operating over the railroad or in the yards of a corporation which does not employ them, they are aware of that fact and the risk of accident from the negligence of the employees of that corporation. All these risks which they know or which they might know by the exercise of reasonable prudence and diligence, excepting only those dan- gers which it is the positive duty of the master to protect them from, they assume, as between themselves and their master, when they enter upon and continue in the employ- §24 Existence op Eelation. 47 Where, however, an employee of a furnace company was injured by alleged defects in the brakes upon a rail- road car which his duties required him to unload, it was held that he had no ground for recovery against his em- ployer as the cars belonged to the railroad company. ^^ The distinction between cases of this character, and those relating to foreign ears, is that the master as to the ment. They may undoubtedly recover of those who are guilty of the negligence which causes their injury just as they may recover of any stranger who commits a tor- tious act that inflicts injury upon them while they are operating their trains. * * * gyt their master does not assume and is not liable to them for the negligence of the ser- vants of the licensing company, when the latter are not engaged in the discharge of the positive duties of the master. On the other hand, the master cannot renounce his absolute duties to his servant or so delegate them to another, as to re- lieve himself from hability for their discharge, and a railroad company which operates its train over an- other's road remains liable to its servants for any failure of the em- ployees of the latter in their dis- charge of the positive duties of the master." Brady v. Chicago & G. W. R. Co., 52 C. C. A. 48, 114 Fed. 100, 57 L. R. A. 712. In Tex- as, it was held that a switchman hired and paid by one company to handle and couple all the trains and cars in a union yard jointly used by his employer and two other railroad companies, can recover from his employers for injuries sus- tained while coupling the cars of one of the other companies; and it does not affect his right to recover whether the injiuries were occa- sioned by the defective condition of the cars of the other company alone, or whether they resulted from the defective condition of the cars and the track. Gulf, C. & S. F. R. Co. V. Dorsey, 66 Tex. 148, 18 S. W. 444. Where a yard master was injured while coupling ears, which resulted from the defective condi- tion of a set of platform scales over which its trains were accustomed to pass, though owned by and built upon the land of a coal company, it was held the company's Habihty was the same as though the scales and track were a part of the appli- ances owned by the company. All masters are bound to furnish then- servants with suitable and reason- ably safe tools and appliances for the work they are required to do, and the sources of their title to the tools and its extent, whether owned by them, leased or borrowed, or otherwise placed in their possession for use, are whoUy immaterial; as between them they are the tools of the master and he is liable to the servants for their defects. Little Rock & Ft. S. R. Co. V. Cagle, 53 Ark. 347, 14 S. W. 89. See Stetler V. Chicago & N. W. R. Co., 49 Wis. 609, 6 N. W. 303; Smith v. Railway Co., 18 Fed. 304. 51. Anderson v. Oliver, 138 Pa. St. 156, 20 Atl. 981. 48 Masteb and Servant. § 24 former has no control over the appliances or the place of work, while as to the latter the cars are within and under the control of the company transporting them. The rule apphed was that relating to the safety of the place of work, and the rule is that an employer is not responsible for an injury sustained by his employee, caused solely by unsafe premises which are owned and controlled by a third person, where the employer's services are per- formed.^^ A railroad company sending its locomotive engineer (employed by the month), with one of its engines, to haul temporarily for another company the trains of the latter over the hne of such latter company, is not responsible to such engineer for the bad condition of the track, nor for the want of adaptation of the engine to the track, it not being alleged that the employer company knew of such bad condition or want of adaptation and concealed its information. It is the duty of an engineer running trains upon a chartered railroad to know who is in possession of the hne and its franchises, or to use due dihgenee to ascer- tain, a pubhc law of the state putting him upon notice of the ownership.^' It would seem that the master thus loaned his servant so that he became, for the time being, the servant of the party to whom loaned.^* Under a Pennsylvania statute, the track of a railway company, when permitted to be used by another company, becomes for the time being, the track of such company so using it." 52. Sharpley v. Wright, 205 held that a person, in the employ of Pa. St. 253, 54 Atl. 896. an individual owner of cars, run on 53. Dunlap v. Richmond & D. a railroad under contract with the R. Co., 81 Ga. 136, 7 S. E. 283. company, was, when in charge of 54. Byrne v. Kansas City, Ft. such ears, an employee of the com- S. & M. R. Co., 9 C. C. A. 666, pany under the statute. Miller v. 61 Fed. 605, 24 L. R. A. 693. CornwaU R. Co., 154 Pa. St. 473, 26 55. The statute embraces the Atl. 779. It was held, however, tracks of a street railway company, that a brakeman upon a locomotive KeUey v. Union Traction Co., 199 owned and operated by a steel Pa. St. 322, 49 Atl. 70. It has been company, which also owned two §24 Existence of Relation. 49 Employee of one injured upon premises of another. The distinction is made in many cases between those who go upon premises merely for their own convenience and those who come there by invitation, express or im- plied. As to the latter, the proprietor owes them the duty of being careful and dihgent in keeping his premises safe, while as to the former he owes them no such duty. To come under an impUed invitation, as distinguished from a mere license, the visitor must come for a purpose con- nected with the business in which the occupant is engaged or which he permits to be carried on there." spur tracks connecting -sntli tlie lines of a railfoad company, and which the railroad company only used for delivering to and receiving from the steel company cars, who was injured by the negligence of the railroad company in the use of such track, was in no sense in the employ of the railroad company under the statute or otherwise. Spisak v. Baltimore & O. R. Co., 152 Pa. St. 281, 25 Atl. 497. 56. Plununer v. DiU, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Sweeney v. Old Colony & N. R. Co., 10 Allen (Mass.) 368, 87 Am. Dec. 644; Metcalfe v. Cunard Steamship Co., 147 Mass. 66, 16 N. E. 701; Gordon v. Cum- mings, 152 Mass. 513, 25 N. E. 978, 9 L. R. A. 640, 23 Am. St. Rep. 846; Severy v. Nickerson, 120 Mass. 306, 21 Am. Rep. 514. An employee of a packing com- pany was, while driving a team of horses, injured by contact with an overhead structure across a road- way, which roadway was used and permitted to be used for the accommodation of the oc- cupants of a block of build- ings. In an action against the per- 1 M. & s. — i sons who maintained such struc- ture, who were not his employers, it was alleged among other things, that the defendants were negligent in failing to provide a light or other signal at such platform to warn per- sons of its existence, and that the plaintiff had no knowledge of its existence. The injury was occa- sioned after dark. Upon demurrer it was held the complaint failed to state a cause of action; that it was not enough to show that the defend- ant had been guilty of negligence without showing in what respect he was negligent, and how he became bound to use care to prevent injury to others. Were the defendants under any higher obligations or duty to the deceased than they had been for a long time to his em- ployers? The deceased having en- tered the employment of his master for the very purpose of hauling pork in barrels from the rear of their stores along the roadway in question.' to the pubUe streets, must not the injury be regarded as one of the hazards of the em- ployment, so far as these defend- ants are concerned? True, it is alleged that he did not know of the 50 Master and Servant. §24 Two companies using delivery track. An act for the protection of railroad employees, re- quired every railroad in the state "to adjust, fill or block frogs, switches and guard rails on its tracks" so as to pre- vent the feet of the employees from being caught therein. It was held that where two railroads receive cars from each other over a delivery track at a certain point, that a person employed by one of them to take the numbers of the cars and inspect their seals as trains were made up at such place by the other, was an employee of the latter within the meaning of this statute." § 25. Servants working temporarily for another. If an employer loans his servant to another for some special service, such servant, with respect to that special projecting platform, but was it the duty of any one to inform him? If so, was it the duty of the defend- ants or his employers? Presump- tively his employers must long have known of the projecting plat- form. Were the defendants under any duty or obligation to inform them of a fact of the existence of which they long have known? Can it be that the defendants were under any higher duty or obligation to the deceased with respect to the dangers of his employment than they were to the persons who em- ployed him? The authorities cited, both English and American, to sustain the reasoning of the court, are numerous. CahiU v. Layton, 57 Wis. 600, 16 N. W. 1, 46 Am. Rep. 46. There was evidence tending to show that it was customary for the railroad company of which the deceased was an employee, to de- liver cars upon the tracks of the defendant company in the usual course of business between the two railroad companies, and that on the occasion of the accident causing inJTuy to such employee, a car had been so delivered, but had not been pushed quite far enough upon the track. It was said: ."It was proper for such first named railroad company to deliver the car in a suitable place upon the track, even if it was not its duty to do so, and in doing so that company and its servants could not be considered as bare hcensees. They were en- gaged in making a proper delivery of the car in the regular course of the business of the two raUroad companies, and the rule of law applicable to mere licensees do not apply to the plaintiff's intestate, and hence such employee could maintain an action against the de- fendant company, it negligent, for injuries sustained by reason of an unblocked frog." Turner v. Bos- ton & M. R. Co., 158 Mass. 261, 33 N. E. 520. 67. Atkyn v. Wabash R. Co., 41 Fed. 193. §25 Existence of Eelation. 51 service, becomes the servant of the party to whom his ser- vices have been loaned..^* Where a servant in the general employment of one is employed, with his consent, to do work for another, he thereby becomes a servant of the latter. The fact that there is an intermediate party, in whose general employ- ment the person whose acts are in question is engaged, does not prevent the principal from being held liable for the negligence of the subagent or under servant, unless the relation of such intermediate party to the subject matter of the business in which the under servant is engaged is such as to give him exclusive control of the means and manner of its accomplishment, and the exclusive direc- tion of the persons employed therefor.^' 68. Wiest V. Coal Creek R. Co., 42 Wash. 176, 84 Pac. 725; Grace & Hyde Co. v. Probst, 208 lU. 147, 70 N. E. 12; Bowie v. Coffin Valve Co., 206 Mass. 305, 92 N. E. 334; Gagnon v. Dana, 69 N. H. 264, 39 Atl. 982, 41 L. R. A. 389, 76 Am. St. Rep. 170. 69. Ward v. New England Fibre Co., 154 Mass. 419, 28 N. E. 299; Wood V. Cobb, 13 Allen (Mass.) 58; Kimball v. Cushman, 103 Mass. 194, 4 Am. Rep. 528; John- son V. Boston, 118 Mass. 114; Har- kins V. Standard Sugar Refinery, 122 Mass. 400; Hasty v. Sears, 157 Mass. 123, 31 N. E. 759, 34 Am. St. Rep. 267. One in the general service of another may be so trans- ferred to the service of a third per- son, as to become the latter's ser- vant with aU the legal consequences of the new relation; but to change the relation and relieve the master, requires more than the mere fact that the servant is sent to do work pointed out by such third party, who has made a bargain with his master for his services. Hence, it was held that a winohman employed by the person furnishing the hoist- ing power to a master stevedore for loading a vessel, remained that person's servant, notwithstanding the hoisting signals were given by the stevedore's foreman, and was not a fellow-servant of an employee of the stevedore who was injured by his negligence. Standard OU Co. V. Anderson, 212 U. S. 215, 63 L. Ed. 480, 29 Sup. Ct. Rep. 192. Defendants were repairing a build- ing and employed a skillful car- penter to superintend the whole job. When the time came for putting on the gutters, one of the defend- ants told the carpenter that he wanted a staging put up, and a stag- ing for the sole purpose of putting on the gutters was erected, under the direction of the carpenter, who used his own brackets to support it. The brackets were insecurely fas- tened to the building. On the next day the defendants ordered the gutters of a coppersmith and di- rected him to send a man to put 52 Master and Servant. § 25 Tlius the employees of a general contractor engaged in hoisting, with the machinery of such contractor, material of a subcontractor to be used by the latter, and who is an independent contractor, are, while so engaged, the serv- ants of the subcontractor, for whose negUgence causing injury to one of the latter's employees, such subcon- tractor and not the general contractor is liable.^" So an employee of an independent contractor, sent to perform a service for the principal, is, while so engaged under the direction and control of the latter, his servant.*'^ Where one in the employ of another, receiving compen- sation from him, is by such other engaged to a third person to assist its servants in doing a particular work, and while so at work is injured by the negligence of the latter's servants, he is, notwithstanding his general employment, their feUow-servant. The existence of this relation be- tween him and his immediate employer, does not exclude a hke relation with the third person to the extent of the special service in which he was actually engaged.'^ them up. The plaintiff was thus intendent of streets. Johnson v. sent, and when he arrived was di- Boston, 118 Mass. 114. Where a rected by such defendant where manufacturer of fireworks sold a to go to work upon the staging, committee of citizens a quantity which fell, causing him injury. It of fireworks, sent a man at the was held that the plaintiff and the request of such committee to take carpenter were fellow-servants, and charge of the display, and also sent the negligence was that of the a boy to assist him, their expenses carpenter. Killea v. Faxon, 125 being paid by the committee, who Mass. 485. took entire charge, the man and boy 60. Pioneer Fireproof Const, acting under their directions, and a Co. V. Hansen, 176 lU. 100, 52 bystander was injured by a rocket N. E. 17. fired by the boy, it was held that, 61. Green v. Sansom, 41 Fla. such man and boy were at such 94, 25 So. 332. time and in the matter of such dis- 62. It was so held where an play, the servants of such commit- employee was sent by his employer tee. Wyllie v. Palmer, 137 N. Y to do specified work in a trench 248, 33 N. E. 381, 19 L. R. A. 285; which was being constructed by the Consolidated Fireworks Co. v. defendant city through its serv- Koehl, 190 111. 145, 60 N. E. 87. ants under direction of its super- §25 Ekistence of Eelation. 53 The test is whether the servant has become subject to the dkection and control of the party to whom his services have been temporarily transferred.*' The general rule has been applied where an engine and crew were rented to another company;** where an em- ployee was furnished to aid an independent contractor;" 63. Berry v. New York Cent. & H. R. Co., 202 Mass. 197, 88 N. E. 588. 64. It was held that a railroad company was not responsible for negligence in the operation of an engine, when, at the time of an accident, the engine and crew by which it was operated were rented to and under the control of another company. Byrne v. Kansas City, Ft. S. & M. R. Co., 9 C. C. A. 666, 61 Fed. 605, 24 L.R. A. 693. Where a railroad company furnishes its contractors with trains and em- ployees to operate the same, such servants remaining in the general employ of the company, but paid by the contractors, and for the time being under the control of such contractors, the doctrine of respond- eat superior applies, and such employees are, while under such control, the servants of the eon- tractors, and hence the latter is liable in a proper case for injitties received by one of such servants through the negligence of the con- tractors. Roe V. Winston, 86 Minn. 77, 90 N. W. 122. But where a railroad company fur- nishes to a contractor engaged in constructing an extension to the company's railroad, an engine and train upon which a fireman, already in the company's service, is by it ordered to work, the company is liable for personal injuries to him caused while obeying this order, by defects in the engine attributable to the company's negligence, al- though the track of the extension in progress is in possession of the contractor, and the operation and movement of the train are under the latter's control. Under such circumstances the presumption of law arises, where such injuries are without fault on the part of such employees and were received while running the engine, that the injury was occasioned by the negligence of the railroad com- pany. The general rule upon the subject is not changed because at the time of the injury neither the engineer nor the fireman was en- gaged in the usual and ordinary business of the company as com- mon carriers of freight and pas- sengers. Savannah & W. R. Co. V. PhiUips, 90 Ga. 829, 17 S. E. 82. Where a city hired a train and train crew for the purpose of grading its own grounds, and such train was operated upon a tem- porary track laid thereon for such purpose, such crew being under the direction of the city, it was held that they were, while engaged in such employment, servants of the city. Coughlan v. City of Cam- bridge, 166 Mass. 268, 44 N. E. 218. 65. Where the master em- ployed an independent contractor 54 Masteb and Servant. §25 where an elevator pilot operated the elevator for a con- tractor;^^ where the owner of a lighter gave possession of it to perform a specified piece of work, and furnished Ms own general serv- ant, a competent person, to aid the contractor, and placed him under his exclusive direction and control in the performance of such work, it was held that the con- tractor and not the general master was responsible for the acts and negligence of the servant while thus engaged. Powell v. Virginia Con- struction Co., 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925. But where a master has sent his servant to assist contractors who had con- tracted to furnish the machinery and do the work of raising a smoke stack for the defendant, and he was injured by reason, as was alleged, of the defective condition of the machinery, and failure to warn the plaintiff of the attending danger, and the defendant himself was present, giving directions, it was held that the plaintiff, not- withstanding he was assisting the contractors; was the servant of his employer, and the defendant, his employer, was hable for his injuries occasioned by the insufQoiency of the machinery. Bhnk v. Hubinger, 90 Iowa, 642, 57 N. W. 593. A serv- ant in the general employ of the owner of premises was furnished to another who as an independent contractor was sinking a well upon the premises. Such servant was injured while so engaged and under the control and direction of the eon- tractor, by slipping and his foot coming in contact with a machine, located near his place of work. The machine was properly constructed and located. It was held that he was not at the time the servant of the employer, but rather of the contractor within the rule of the master's Uabihty for injuries to his servant. That the owner was under no special obligations or duty to furnish him a safe place to work. The doctrine of implied invitation, however, would be applicable if the premises were subject to special hazard not apparent and obvious, that is to give warning of the risks to which the contractor or his serv- ants are exposed. If, however, the dangers are open and obvious the owner may rely upon the assump- tion that they are or will be seen and known. It was held that warning was not required. That the machine which caused the injiuy and its working was open and obvious to one using his senses. Westover v. Hoover, 129 N. W. (Neb.) 285. 66. An elevator operator, who while work in operating the ele- vator is suspended, at the request of a contractor in the building, operated the elevator so that a mason in the employ of the con- tractor could use it as a moveable platform in plastering the shaft, under the latter's direction, was the servant for the time being, of the contractor, and not of his general employer from whom he received his pay. Higgins v. Western Union Tel. Co., 156 N. Y. 75, 50 N. E. 500, 66 Am. St. E«p. §25 Existence of Eelation. 55 and the crew to another;*' where a railroad employee was loaned to a telegraph company;*^ where the owner of a horse sends it with his driver to be under the control of another;*^ where an employee was sent to make repairs in 67. Where the owner of a lighter by his contract with his charterer gives the latter possession and absolute control of the boat and its captain until the charterer shall have accomphshed the work for which he engaged the boat, the captain becomes as to such act, the servant of the charterer and his relation as a servant of the owner is suspended, and such owner is not responsible for the negligence of the captain in unloading the boat causing injury to a third per- son. Anderson v. Boyer, 156 N. Y. 93, 50 N. E. 976. 68. Where a railroad company permitted a telegraph company to carry on certain work of its own on the railroad track, distinct from that of operating the road, and the telegraph company procured from the railroad company one of its brakemen to attend switches, act- ing under the orders of the tele- graph company, such brakeman became, for the time of such serv- ice, a servant of the telegraph com- pany, and not a co-servant of the engineer injured through the negli- gence of such brakeman in leaving the switch open. Hallett v. New York Cent. & H. R. Co., 167 N. Y. 543, 60 N. E. 653. But it was held that an engineer in the employ of a railroad company, subject to be discharged by and receiving his pay from it, was its servant and the company liable for injuries he received while operating a train on such road, though in operating such train he was temporarily subject to the orders of a telegraph company, represented in the im- mediate control of the train by one of its employees, and the train was being used solely in transporting materials for such telegraph com- pany, and the force engaged in such work were employees of such latter company. Coggin v. Central R. Co., 62 Ga. 685, 35 Am. Rep. 132. 69. An employee, the driver of a truck, injured by a temporary platform placed on the truck by a society (G. A. R.), being insecurely fastened, his employer not having seen nor in any manner directed the construction or placing of the platform, the society having hired the horses, truck and driver from the person in whose general employ the servant was at the time, was held to be in the special employ of the society and it, and not the gen- eral employer, liable for his injuries. Hardy v. Sheddon Co., 24 C. C. A. 261, 78 Fed. 610, 37 L. R. A. 33. But where one employed as a la- borer by a city in digging a trench was injured by the negUgence of the driver of a team owned by an individual who had hired the team and driver to the city at a certain sum per day, and the work was in charge of an employee of the city who had the right to direct where the team should be used, it was held that such driver was at such time and in relation to such act the servant of the owner of the 56 Mastbb and Sbbvant. §25 the building of another;™ where a person in the general employ of one performed services common to his employer team. The question turned upon the point whether he was controlled by his employer, though the super- intendent of the city directed his place of work. Reagan v. Casey, 160 Mass. 374, 36 N. E. 58. The plaintiff was run over by a horse and truck driven by one Murphy, by the neghgenee of the driver, who at the time was performing service for the Western Electric Company, but was in the employ of the defendant, pursuant to a contract by which the defendant was to furnish the Western Elec- tric Company with a horse, truck and driver daily to do its trucking for a special period for a special price. The defendant each day, selected from its men and equip- ment the horse, truck and driver which were to be at the disposition of the Western Electric Company, and had selected on the day in question the driver, horse and truck which caused the injury. Such servant had taken a load of goods for the Western Electric Company, and was returning to the factory when he ran over the plaintiff. It was held that the defendant was not the agent or servant of the Western Electric Company, but an independent contractor ; hence those employed by the defendant to do the work contracted for were its servants and not those of the Elec- tric Company. It was said: "The rule of respondeat superior rests in the power which the superior has a right to exercise, and which for the protection of third persons he is bound to exercise over his subordinates. It does not apply to eases where the power of control does not exist, and the power does not exist where the primary em- ployer has no voice in the selection or retention of the subordinates." Quinn v. Complete Electric Const. Co., 46 Fed. 506. 70. The plaintiff was a car- penter employed by the hoiir by a firm. He was told by such firm there was some work to be done at the defendant's building, and that the superintendent of the building would teU him what was to be done. He went to the building and received his instructions from the superintendent to fix the frame- work of an elevator floor and loosen the door at the top. To do this work it was necessary to stand on a ladder or steps in the elevator hole to take off the door. The boy who was operating the elevator was instructed by the superin- tendent not to move the elevator below the second floor until the plaintiff had finished the work and left the well. The boy diso- beyed such instruction and low- ered the elevator causing injury to the plaintiff while at work. It was held that the plaintiff was an employee of the defendant; that he and the boy were fellow-servants, and therefore he could not recover. The principle stated by Cockburn, C. J., in Rourke v. White Moss ColUery Co., 2 C. P. D. 205-209, was stated and applied, namely, that "Where one person hires his servant to another for a particular employment, the servant, for any- thing done in that particular employment, must be dealt with §25 Existence of Eelation. 57 and another;" where employee taken temporarily from his work and directed to perform individual service for his superior; '^etc.^* as the servant of that man to whom he is hired, although he remains the general servant of the man who lent him." The plaintiff was not acting under the immediate orders of his general master, the firm who sent him to work for the defend- ant, but was acting under the orders of the defendant's super- intendent, and thus became the defendant's servant, notwithstand- ing he remained the general serv- ant of such firm and was paid by them. Hasty v. Sears, 157 Mass. 123, 31 N. E. 769, 34 Am. St. Rep. 267. 71. Where an employee of one railroad company, in the perform- anoe of and as a part of his duties, was required to attend to the switches and to couple and un- couple its cars and those of another company at the station, where they used a common track, and was injured while performing such du- ties by reason of the negligence of the latter company, and it appeared he received his pay from the com- pany in whose general employ he was, though the other company paid such company a portion of his wages, it was held that these facts were sufficient to create the relation of master and servant; and the fact that the plaintiff was in the general employment of another company, does not change the rule, since a person may be the general servant of one and the special ser- vant of another; that is, he may perform special services for one while he is the general servant of another, and whUe performing such special service he wiU be the servant of the one for whom such services are performed as to that particular service. If he is the joint servant of the two companies, he has his election to sue one or both of them. Vary v. Burlington C. R. & M. R. Co., 42 Iowa, 246. 72. Where an employee of a railroad company was taken tem- porarily from his work for the com- pany by his superior and was directed to perform an individual service for the latter, it was held that the company was not liable for an accident occurring while he was in the performance of such service. The facts were that the section men, of which plaintiff was one, had completed their day's work and were proceeding on a hand car to a station after provisions for the section boss. Hurst v. C, R. I. & P. R. Co., 49 Iowa, 76. 73. Servant of one sent to repair machinery for another. A servant in the general employ- ment of one person, sent to repair the machinery of another, and who is subject, during such under- takings, to the control of such other person, and who directs him what to do, is the servant, during such time, of the latter, although he relies largely upon the skill and experience of the servant. If he negligently causes injury to an- other servant of the person in whose temporary service he is engaged, his regular employer ia 58 Masteb and Sebvant. §25 Servant's consent essential to change of masters. While recognizing the general rule that the servant of one person may for a particular work or occasion become not liable. Samuelson v. American Tool & Mach. Co., 168 Mass. 12, 46 N. E. 98; Muncie v. Spring- field Breweries Co., 200 Mass. 79, 85 N. E. 840. Mill wbiqht in employ of one pebporminq work fob another. A mill Wright in the employ of a machine company, directed by his employer to go to a certain mill and do certain work, and after finishing such work being directed by the mill superintendent to do certain other work, the superintendent go- ing with him, and while so occupied was injured through the negligence of the mill engineer, it appearing that the machine company ren- dered bUls to the mill company for labor and machinery furnished, the labor being charged for at a price per hour, the mill wright was a fellow-servant of the engineer. Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078, 102 Am. St. Rep. 328, 64 L.R. A. 114. Servant of one engaged in PUTTING MAOHINERT IN MILL OF ANOTHER. On the issue whether the plaintiff was the defendant cor- poration's servant, and a fellow- servant of its employees by whose negligence he was injured, there was evidence that he was working by the month for a firm engaged in putting a machine into defendant's mill; that the defendant's agents had prepared the specifications for the machine and sent the order to the firm to do the job, but gave no further direction to the firm in regard to the work; and that when nearly completed in the firm's shop, the machine was carried to the mill to be set up, the supporting wood work being prepared by the defend- ant's employees on the same day. A member of the firm testified "there was no contract as to mak- ing 'the machine'; we were to charge them for the stock and time." It was held there was evidence upon which the jury might properly find that the plaintiff was a servant of the defendant. Ward V. New England Fibre Co., 164 Mass. 419, 28 N. E. 299. Where the owner of a saw mill gave an order to a firm of master mechanics to make some alterations in the gearing of a water wheel of his miU, and such firm sent the plain- tiff and another workman to do the work, it being understood be- tween these workmen and such owner that the mill would run only at such times as they were not actually at work upon the wheel, and while they were so at work the engineer negligently started the wheel, causing injury to one of them, it was held he could not recover; that he was a servant of the defendant engaged in a common em- plojrment with the engineer. Ewan V. Lippincott, 47 N. J. L. 192, 54 Am. Rep. 148. Employee op one performing WORK FOE another INJURED BY DEFECTS IN THE PREMISES OP THE LATTER. Where a servant in the employ of and in the pay of one company was doing work for an- other company in the latter's yard, §25 Existence of Relation. 59 pro haec vice the servant of another, so that the latter -will not be liable to him for an injury occasioned by the neg- ligence of other servants engaged with Tiim in the common and was injiired by defects in the premises, it was held that the relar- tion of master and servant existed between such latter company and the servant injured. The court referred to Snow v. Housatonia R. Co., 8 Allen (Mass.), 441, 85 Am. Dec. 720, as sustaining their position. In fact, however, such case is in conflict therewith as to the application of the doctrine of respondeat superior. It was ex- pressly held that the relation of master and servant did not exist, and the right to recover was based upon the absence of such relation. The employee injured was in the employ of one company using the tracks of another, the defendant company, at the time he received his injury. Missouri Pac. R. Co. V. Jones, 75 Tex. 151, 12 S. W. 972, 16 Am. St. Rep. 879; Gulf, C. & S. F. R. Co. V. Dorsey, 66 Tex. 148, 18 S. W. 444. Defendant's trains and em- ployees UNDER CONTEOL OF CON- TRACTOR. A contractor agreed to lay defendant's track at the rate of a certain number of miles per day, the defendant to furnish all motive power and cars and operate the construction trains. One of such contractor's employees was killed, as alleged by the too rapid miming of a construction train. It was held that the defendant was not liable for the reason that from the nature and terms of the contract it did not have control of the construction trains, though the trainmen were retained on its pay roll and received their wages from it. MiUer v. Minnesota & N. W. R. Co., 76 Iowa, 655, 39 N. W. 188, 14 Am. St. Rep. 258. See also Hitte V. Republican Valley R. Co., 19 Neb. 620, 28 N. W. 284. Room containing machinery operated by lessor's employees RENTED TO ANOTHER. Where a room containing machinery is rented by a lessee, the machinery being operated by employees hired and paid by the lessor, whUe such machinery is being operated solely with the lessee's work, and the men operating are subject to his control and direction, they are the feUow- servants of a person employed by the lessee to work under the direction of one of those who are operating such machinery. Ro- zeUe V. Rose, 3 App. Div. 132, 39 N. Y. Supp. 363. Servant of one sent by his employer in charge of team TO ASSIST CONTRACTOR. A SCrVaUt sent to perform work for another person, with whom a contract for its performance has been made by his master, does not by that fact alone, at common law or by the Massachusetts Statute, become a servant of the latter. Hence where a person or corporation contracted with* the employer of a servant to transport the contents of a certain powder magazine to a certain place pending repairs, and then to return such contents to the magazine, and such servant assisted in the doing of such work, in charge of one of his employer's teams, but without 60 Mastbb and Servant. §25 employment on the groxmd that they are fellow-servants, the rule is qualified by the statement that, . in order to establish such relation of master and servant between the servant thus temporarily serving another and such other, it must appear that the servant has consented, either expressly or impliedly, to the transfer of Ms serAdces to the new master, and has submitted himself to the direction and control of such master.'* any duty as to the loading of the wagons or to determine the place of deposit, he did not thereby be- come the general servant of the person or corporation engaged in removing the contents of the magazines, and no liability for his death resulting from an explosion existed on the ground of the rela- tionship of master and servant. Ouhhgan v. Butler; Bent v. Butler; Lawrence v, Butler, 189 Mass. 287, 76 N. E. 726. Where the tools are not furnished bt the immediate master. Where one employed master mechanics, the master me- chanics to furnish the necessary tools and tackle to be used by their men, all the men so furnished by each, to be under the control of the principal's agent, it was held that such principal was not hable to one of such men for injuries re- ceived, caused by the negligent act of a servant furnished by a differ- ent master workman, either in furnishing imperfect tackle or in the manner of using it. HarHns v. Standard Sugar Refinery, 122 Mass. 400. StTBSTITUTB FURNISHED BT GEN- ERAL EMPLOYER. Where the owner of a horse and dray, who was en- gaged under contract with another to do certain work, furnishing his own driver, and upon his driver being taken sick the defendant vol- unteered to make use of a servant in their employ as driver, it was held that he stiU remained the servant of the general employer and not the servant of the owner of the team, where such team was killed by such person's neglect. Hofer V. Hodge, 62 Mich. 372, 18 N. W. 112, 60 Am. Rep. 266. 74. Hence, where a rolling mill company contracted with a rail- road company to furnish at a specified price the materials for rebuilding bridges, and also sMUed workmen to erect such bridges, and such workmen were supplied and were paid by their direct employers, who in turn were repaid with an additional per cent, by the railroad company, and the work was done under the direction of the engineer of the railroad company, but the foreman of the men were furnished by the rolling mill com- pany, and where one of such men so furnished was injured by an employee of the railroad com- pany in running an engine over his hand, it was held that the question whether he was a servant of the railroad company, and therefore a fellow-servant of the train em- ployees of such company who caused the injury, was properly a question for the jury. Delaware, L. & W. R. Co. V. Hardy, 58 § 26 Existence op Eelation. 61 Minor child put to work. A peculiar case in Kentucky holds that the duty of a father to educate and maintain his infant son creates the relation of master and servant; and that if one engages the servant of another in an obviously dan- gerous business, he renders himself responsible for an injury the servant may sustain while so engaged, and "which can rationally be attributable to the undertaking; and that this is so, even if the injury results immediately from the neglect or unsMlfulness of the servant, owing to the fact that the person, by so illegally interfering assumes all the risks incident to the service. This rule was applied where a minor was injured while acting as brakeman at the mere request of the conductor, without wages and without the consent of his parents/^ § 26. Existence of relation outside of actual working time. The general rule is that the relation of master and servant exists only when one in the general employ of the master is in the performance of duties of the master. However, it is a matter of common knowledge that, as to employments by the day, it is not required that the serv- ant shall be actually employed every moment of the time. Different causes necessarily require a suspension of his work for a time. The great weight of authority is to the effect that the relation of master and servant is not N. J. L. 205, 35 Atl. 1130. The immediate control of the joint rule that a person cannot become agent while working in the yard, servant of another without his It did not appear that such brake- consent was applied where a man knew of the latter provision, brakeman in the employ of one It was held that the relation of company was injured by the acts fellow servants did not exist as of a crew in a yard in the joint matter of law. Berry v. New York employ of such company and Cent. H. R. Co., 202 Mass. 197, 88 another. The contract between the N. E. 588. two companies was to the effect 75. Louisville etc. R. Co. v. that expenses and damages should WiUis, 83 Ky. 57, 4 Am. St. Rep. be apportioned equally between 124. (It is difficult to see how the them and that the employees of rule could be extended beyond the each road should be under the facts of the particular case.) 62 Masteb and Seevajstt, §26 suspended from the time a laborer arrives upon the premises and becomes subject to the order and control of the master imtil he quits for the day.'^ During noon hour. The relation of master and servant continues during the noon hour while the employee is upon the master's prem- ises, eating his noon meal, and thereafter until the hour arrives for him to resume his regular work, especially where it is the custom for the men to so partake of their meal and remain. It certainly could not be reqiiired that they should leave the premises, especially a manuf actiiring establishment, and in many cases it would be impractica- ble so to do." An employee cannot be said to be out of the line of his duty because he chooses to remain upon the car with which he is working or in connection therewith, at the noon hom'.''^ 76. Virginia Bridge & Iron Co. V. Jordan, 42 So. (Ala.) 73 ; Birming- ham Rolling Mill Co. v. Rickhold, 143 Ala. 115, 42 So. 96; Woodward Iron Co. V. Curl, 153 Ala. 215, 44 So. 969; Wilson v. Banner Lumber Co., 108 La. 590, 32 So. 460; Abend v. Terre Haute & I, R. Co., Ill lU. 202, 53 Am. Rep. 616; Evansville & R. R. Co. v. Mad- dux, 134 Ind. 571, 33 N. E. 345, 34 N. E. 611; Parkinson Sugar Co. v. Riley, 50 Kan. 401, 31 Pae. 1090, 34 Am. St. Rep. 123; Boldt v. New York Cent. R. Co., 18 N. Y. 432; Ewald V. Chicago & N. W. R. Co., 70 Wis. 420, 36 N. W. 12, 591, 5 Am. St. Rep. 178. 77. Riley v. Cudahy Packing Co., 82 Neb. 319, 117 N. W. 765. See also Cleveland, C, C. & St. L. R. Co. V. Martin, 13 Ind. App. 485, 41 N. E. 1051; Broderick v. De- troit U. R. S. & D. Co., 56 Mich. 261, 22 N. W. 802, 56 Am. Rep. 382. In the latter case it was said that it does not foUow that, be- cause an employee has been given an intermission, from work for an hour and a half at dinner, he ceases, during that time, to be a servant of the employer. If during that time he had in his care or control any of his master's property, requiring his attention and oversight, or if called upon to perform work by the master, or by any one having au- thority to command his service, the relation would tUl exist, arising in the one case from duty to prop- erly care for the property of the master, and in the other from duty to perform the service. 78. EvansviUe & R. R. Co. v. Maddux, 134 Ind. 671, 33 N. E. 345, 34 N. E. 511. § 26 Existence of Eelation. 63 A railroad company, however, owed no duty to an employee at its round house to guard him against dangers where he left his place of work for a restaurant outside of the railroad yard, and was injured while crossing the tracks in the yard by stepping into a pool of hot water which had collected on the track. ^* After close of actual work for the day. The relation of master and servant may continue after the employee has finished his day's work, and before he leaves the premises, in the ordinary course of his employ- ment, as where at the close of the day's work in a paper mill, an employee is putting on his coat preparatory to quitting work.*" A day laborer occupies towards his master the relation of master and servant while going to get his dinner pail after the day's work is done. If injured by the act of another employee, who is a fellow-servant, he cannot re- cover from the master.*^ Where an employee in a bridge gang, who worked by the day and Uved in a car provided by his employer, was injured in a colUsion after his day's work was done, and while in his car engaged with his own affairs, it was held he was in the employment of the company at the time of the accident and was a fellow-servant with the workmen in the transportation department.*^ 79. Wilson v. Chesapeake & tlie morning of the day of the acci- O. R. Co., 130 Ky. 182, 113 S. W. dent he was asleep in the bunk of his 101. sleeping car provided by the eom- 80. Hehnke v. Thibnany, 107 pany for the purpose. Trainmen in Wis. 216, 83 N. W. 360. See also the employ of the defendant ran the Boyle V. Columbian Fireproofing train onto the side track with con- Co., 182 Mass. 93, 64 N. E. 726. siderable speed, throwing him from 81. Taylor v. Geo. W. Bush & the bunk, causing him injury. It Sons Co., 5 Pennew. (Del.) 378, 61 was held that he was to be con- Atl. 236. sidered on duty at the time. He 82. International & G. N. R. was subject to the call of the com- Co. V. Ryan, 82 Tex. 565, 18 S. W. pany at any time. St. Louis, A. 219. Plaintiff was foreman of a T. R. & Co. v. Welch, 72 Tex. 298, bridge gang in the employ of the 10 S. W. 529, 2 L. R. A. 839. defendant. About three o'clock on 64 Masteb and Servant. § 26 Where a person standing on the wharf was employed by the mate of a vessel to assist in loading some goods, the service continuing about two hours and a half, and in obedience to directions he went to the office on the boat, to get his pay, and then started to go ashore, and while crossing the gang plank the hands recklessly pulled the gang plank from under him, causing him injury, the ques- tion being whether he was a servant of the company at the time, the facts being undisputed, it was held that such question was a proper one for the jury, and having been submitted and found that he was not, judgment for the plaintiff was affirmed.*' Servant working overtime or out of hours. Where a servant, at the request of the master, works over or after the time of his regular hoxirs of work, he is in the hne of his employment and is subject to the usual risks thereof.** And if he works during the dinner hour he is not for that reason a volunteer. If, however, he is doing work out- side his regular employment, he may be considered such.*^ The fact that plaintiff's decedent was advised by a vice- principal of defendant not to work beyond a certain hour for fear that he could not work on the factory the next day, but that he worked longer, was held not to sever the rela- tion of master and servant between defendant and plaintiff's decedent or show contributory negUgence on his part.*^ Where an employee was MUed by the explosion of a boiler in use by his employer, and it appeared that this occurred a short time prior to the hour at which his day's work commenced, but that he had certain prehminary duties to perform or usually did perform before such hour 83. Packet Co. v. McGue, 17 Ehmett, 23 Ky. L. Rep. 1788, 65 Wall (U. S.) 508, 21 L. Ed. 705. S. W. 835, 55 L. R. A. 710. 84. Kehoe v. AUen, 92 Micli. 86. McElligott v. Randolph, 61 464, 52 N. W. 740, 31 Am. St. Rep. Conn. 157, 22 AtL 1094, 29 Am. St. 608. Rep. 181. 85. Mitchell Transfer Co. v. § 26 Existence of Eelation. 65 it was said lie was entitled to a reasonable margin of time in arriving at Ms place of work, and the question of his being in the service at the time was a question for the jury." Going to or returning from day's work. Where the master provides hand cars for the transpor- tation of employees to a point convenient to their homes after their work is done, he owes them the same duty in respect to the safety of the car as when they are actually at work. The relation of master and servant continues.** Thus, employees of a Imnber company, while traveling to their homes on a hand car furnished by the company, are still in its service.*' An employee, a wiper of engines in defendant's round house, in going to and from his work, was, with other employees, in the habit of using a beaten pathway across the defendant's yards. While going to work along this pathway, and just as he was crossing the track, he was injured by the coming together of two freight cars which had been left apart to allow the employees to pass. It was held that at such time and under such circumstances he was in the employ of the defendant and a co-employee of the trainmen.'" Where, however, a section hand, when injured, was upon his hand car, proceeding after his day's work was done on another part of the road than that on which his duties required him to work, at the request of his foreman, on business personal to the foreman, it was held the company was not liable.'^ The fact that a person hired by the day, who missed the work train on which he was employed, was at time of his 87. Walbert v. Trexler, 156 Pa. 90. Ewald v. C. & N. W. R. Co., St. 112, 27 Atl. 65. 70 Wis. 420, 36 N. W. 12, 591, 5 Am. 88. Cicalose v. Lehigh Valley St. Rep. 178. R. Co., 75 N. J. L. 897, 69 Atl. 166; 91. Hurst v. C, R. I. & P. R. Wilson V. Banner Lumber Co., 108 Co., 49 Iowa, 76. See also Baird La. 590, 32 So. 460. v. Pettit, 70 Pa. St. 477; Baltimore 89. Arkadelphia Lumber Co. v. & Ohio R. Co. v. Trainor, 33 Md. Smith, 78 Ark. 505, 95 S. W. 800. 542. 1 M .& S.— 5 66 Master and Seevant. § 26 injury on his way to get a pass to cateli up with the train, did not render him an employee of the company.'^ Where an employee in defendant's yard, while walking on the track after his day's work was done, going to his home, was kUled, presumedly by a train running over him, and it appears that his foreman had told him that at any time he was going over the road to notice the track closely, and if anything was found wrong to let him know, it was held that he was not on duty at the time of the accident. That such general direction cannot be construed as an order to go upon the track for such a purpose outside of his general employment.^' Where a servant regularly employed as a superintend- ent, having multifarious duties which he might have to perform at any time while on his master's premises, was injured while going from said premises to attend to busi- ness of his own which he was permitted to do by his employer, it was held he was at such time to be considered a servant of the defendant. The statement was advanced by the court that at any time during working hours when he was on the defendant's premises, his duty was to look after and perform his duties there.'* Where employees, without the actual consent of the officers of the road, but with their knowedge, have been accustomed to use a switch engine to be carried from the round house to their meals, it was held a proper question for the jury whether on such occasion the engine was engaged in the business of the company. This was said where an infant not an employee was injured by the negligent manner in which the engine was operated.'^ Temporarily suspending work. The fact that a servant was not in the actual perform- ance of his duties at the time of injury, will not neces- 92. Missouri, K.&T. R. Co. V. 94. Adams v. Iron Cliffs Co., Hendricks, 49 Tex. Civ. App. 314, 78 Mich. 271, 44 N. W. 270, 18 108 S. W. 745. Am. St. Rep. 441. 93. Baker v. C, R. I. & P. R. 95. ReiUy v. Hamiibal & St. Co., 95 Iowa, 163, 63 N. W. 667. J. R. Co., 94 Mo. 600, 7 S. W. 407. § 26 Existence of Eelation". 67 sarily prevent a recovery, as where a foreman of a switch- ing crew, during a pause in his work, was sitting down and injured by the fall of a door of a box car.^* Nor because he goes into a building to warm himseK dur- ing working hours," or quits actual work for a few min- utes in order to get a drink of water.'* Where minor employees were occupying a platform in obedience to directions of a superintendent, during an interval in their work, they were not strangers and the master was in duty boimd to maintain the platform in a reasonably safe condition.^' Where not acting as servant. Where an employee, wishing to be reUeved from duty for one day, was promised such relief if he could find a sub- stitute, and while trying to find such substitute, was killed, probably by an electric shock in the telephone booth of the employer's waiting room, it was held that there could be no recovery for his death under the statute, since he was not in his employer's service at the time.^"" So employees of a railroad bridge gang, while on a pleasure trip with a borrowed hand car, are not then serv- ants in the employ of the company, i" Where plaintiff's intestate had been in the employ of defendant railroad company as a section hand working by the day, but was not at work on the night when he was run over and killed, and did not work the preceding day, it was held he was not in the defendant's employ at the 96. Houston E. & W. T. R. Co. 100. Gooch v. Citizens' Electrio V. McHale, 47 Tex. av. App. 360, St. R. Co., 202 Mass. 254, 88 N. B. 105 S. W. 1149. 591, 23 L. R. A. (N. S.) 960. See 97. Parkinson Sugar Co. v. also DicHnson v. West End St. R. Riley, 50 Kan. 401, 31 Pac. 1090, Co., 177 Mass. 365, 59 N. E. 60, 34 Am. St. Rep. 123. 52 L. R. A. 326, 83 Am. St. Rep. 98. Jaarvis v. Hiteh, 65 N. E. 284. (Ind. App.) 608. 101. Elinois Cent. R. Co. v. 99. Chambers v. Woodbury Dotson, 24 Ky. L. Rep. 1459, 71 Mfg. Co., 106 Md. 496, 68 Atl. 290, S. W. 636. 14 L. R. A. (N. S.) 383. 68 Master and Sebvant. § 27 time of the injury, and the court properly refused to sub- mit the question of employment to the juiy.^"^ Where a fireman was excused from his duties by his superior officer, and while attempting to cross a track at a public crossing was injured, it was held that he occupied the relation of one of the pubhc and persons in control of the train owe him the same duty as that owing to one of the pubhc. ^"^ A bridge foreman of a railroad company, who, while in pursuit of his own affairs and not engaged in any duty for the company, went upon the track at night on a hand car having no Ught, and was killed by collision with a special train, was not in the relation of a servant at the time."* § 27. Servants injured on train, vessel or other convey- ance, when not employed thereon. The general rule is that a master can only set up the relation of master and servant as a defense to an action by a servant where the injuries were received while engaged in his employment. If the master's negligence is a matter extraneous to his specific employment, or if the injuries be received at a time when the servant is not engaged in his duties, then the servant occupies the posi- tion or status of a stranger. But this rule has no apph- cation where, by the terms of the contract, express or implied, it appears that travehng on the esjrs constitutes a part and portion of the contract of service. In such case the person injured must be regarded as a servant or employee."^ 102. Cincinnati, N. O. & T. P. place of work from Ms home. The R. Co. V. Conley, 14 Ky. L. Rep. arrangement between the company 568, 20 S. W. 816. and the men was that they were to 103. Davis v. Atlanta & C. A. be taken to Buffalo on Monday L. R. Co., 63 S. C. 370, 41 S. E. 468. morning and brought back Satur- 104. Russell V. Oregon Short day evening in defendant's ear. No Line R. Co., 83 C. C. A. 618, 155 fare was required of them, but a Fed. 22. deduction was made from their 105. Thus a foreman of defend- wages at an amount fixed per hour, ant's shops was injured while riding being the same as when at work for upon one of its trains going to his the time when they were upon the §27 Existence or Relation. 69 Thus, an employee, "while proceeding to his work from cleaning one switch to another, on a train, having an employee's ticket, was acting in the capacity of a servant, train, their wages beginning when they reached the shops at Buffalo and ending when they left them. It was held that he was a servant at such time. Vick v. New York Cent. & H. R. R. Co., 95 N. Y. 267, 47 Am. Rep. 36. O'Donnel v. Allegheny R. Co., 59 Pa. St. 239, 98 Am. Dec. 336, was disapproved and said not to be sound law. In the latter ease, it was held that where an employee is carried to and from his place of work in considera- tion of a deduction from his wages, then he stands in the same relation as any other person paying fare, and while on his journey he is acting independent of his employ- ment and therefore cannot be con- sidered at such time an employee. O'DonneU v. Railway Co., 59 Pa. St. 239, 98 Am. Dec. 336. The gen- eral rule is that one who is hired by the day, week or year is just as much in the employer's service in going to and from his work under privi- leges granted by the master and accepted by the servant as when actually engaged in the work itself. Abend v. Terre Haute & I. R. Co., Ill 111. 202, 53 Am. Rep. 616. A servant employed to go to a certain place to do certain work, who is transported to and from such place by his employer, his pay being con- tinued all the time, is in the service as an employee from the time he leaves until he returns, and the liability of the employer for injuries continues. Alabama Great South- ern R. Co. V. Brock, 161 Ala. 351, 49 So. 453. A section master, while riding on a train going from his place of work to his sleeping place, after the day's work is over, is not a passenger but a servant. Wright V. Northampton & H. R. Co., 122 N. C. 852, 29 S. E. 100. An em- ployee upon the track invited to ride home, after his day's work, upon one of the company's ears, is not a passenger but an employee, and, if injured by the careless man- agement of the train, he has no ground for recovery if he is a fellow- servant of those managing the train. lonnone v. New York, N. H. & H. R. Co., 21 R. I. 452, 44 Atl. 592, 46 L. R. A. 730, 79 Am. St. Rep. 812. Where a laborer was being carried to and from his place of work upon the trains of the de- fendant without compensation, and was injured by the negligence of the operators upon one of such trains, it was held that the relation of master and servant existed between the employer and himself, and that the operatives who caused him injury were his fellow-servants. It was said: "If by the terms of his contract of service he was thus to be transported, then the injury was received while engaged in the serv- ice for which he was employed. If it be not properly inferable that such was the contract, it leaves the case to stand as a permissive privi- lege granted to plaintiff, of which he availed himself to facilitate his labors and service, and is specially connected with it and with the rela- tion of master and servant, and therefore furnishes no ground for 70 Mastbb and Servant. §27 notwitlistanding it was Sunday and the operation of the car on that day was in violation of a statute.^"" So an employee on a gravel train, injured by the negli- gence of the engineer while being conveyed to his home, was held to be in the service of the company, the engineer being his fellow-servant.^"^ And where a railroad company engaged in ballasting its road employed a hand to assist in loading and unload- ing a gravel train, and in the execution of his service it was necessary for him to ride on the train from the gravel pit to the place of unloading, the train being run under the direction of a conductor, and said hand having noth- ing to do in its management, it was said he was a mere employee and did not assume the character of a pas- senger."* maintaining an action against the master." Gilshannon v. Stony Brook R. Corp., 10 Gush. (Mass.) 228; Gilman v. Eastern R. Corp., 10 AUen (Mass.) 233, 87 Am. Dec. 635. Emplotbb attempting to MOUNT TKAIN to CONVEY HIM TO PLACE TO RECEIVE HIS PAT. Wlere the foreman of a gang of men em- ployed in repairing the track of a railroad company ordered them to qiiit work at fifteen mimites before the usual hour and take a train which was to carry them to a certain station, without payment of fare, according to a monthly cus- tom, to receive their wages, and one of the men, while running along the track to get on the train, was struck and injured by a hand car operated by another gang in the employ of the same company, it was held he was in the service of the corporation at the time he was injured; hence his injuries were caused by the act of f eUow-servants. O'Brien v. Boston & A. R. Co., 138 Mass. 387, 52 Am. Rep. 279. Rule not obsebved by Wash- ington COURT. It seems that the Washington court is not in fuU accord with the doctrine univer- sally recognized elsewhere. It hdid that a track layer in the employ of a street railway company, while riding on the cars to and from his place of work, is not a fellow-serv- ant of the employees operating the car. There was a collision between two cars and such employee was injured. Peterson v. Seattle Trac- tion Co., 23 Wash. 615, 63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586. 106. Shannon v. Union R. Co., 27 R. I. 475, 63 Atl. 488. 107. Russell v. Hudson R. R. Co., 17 N. Y. 134; Ryan v. Cum- berland V. R. Co., 23 Pa. St. 384. 108. Kumler v. Junction R. Co., 33 Ohio St. 150. § 27 Existence of Eelation. 71 Likewise, where an employee of a railroad company, acting in the capacity of baggage master, conductor of passenger and gravel trains, as directed, was ordered to go to a station and take charge of a train the next day, and went beyond such station, and in coming back to such place to take his train, upon one of the company's trains, was injured through the negUgenee of the operatives of such train, it was held that the operatives were his fellow- servants though he had no duties to perform in connec- tion with the operation of such train. "^ It was held that a person employed as a detective, and authorized to ride upon defendant's hand car, was such an employee in its service that he covdd recover for injuries caused by the unfitness of such means of conveyances or by any neghgence of the defendant's servants in operating such car, or from any defect in the track which may have caused him injury. ^^^ The employees of a lumber company while being trans- ported to and from their work upon ears operated by the company, are in the employment of the master to the same extent as when actually at work."^ So where a woman who was employed as a laundress, while being conveyed, either gratuitously or as a part of the contract of employment, from her home to that of her employer, in his wagon, the driver being his coach- man, was injured by the neghgence of such driver, it was held that she was to be regarded as in the service of her employer at the time of the accident and a fellow-servant of the coachman. ^^^ Employee riding for pleasure on Sunday. If an employee is hired by the day and has no labor to perform on Sunday, he cannot be said to be a servant while not performing labor for his master on that day, and if he chooses to ride upon the train of his employer on such 109. Manville v. Cleveland & 111. Self v. Adel Lumber Co., Toledo R. Co., 11 Ohio St. 417. 6 Ga. 846, 64 S. E. 112. 110. Pool V. Chicago, M. & St. 112. McGuirk v. Shattuck, 160 P. R. Co., 53 Wis. 657, 11 N. W. Mass. 45, 35 N. B. 110, 39 Am. St. 15; S. C, 56 Wis. 227, 14 N. W. 46. Rep. 454. 72 Master and Servant. § 27 day for his own convenience or pleasure, even upon a pass which he has as an employee, and is injiu'ed, it cannot be said that he was at such time, under such circumstances, a servant of the company."' Rule not applicable to servants of contractor. The general rule does not apply to the servants of contractors employed in the construction of the road of the company. They are in no sense servants or employees of the company but are passengers."* Employee neither going to nor returning from work. A conductor of a train, who after his work for the day is done, rides upon another train in going to his mine for the purpose of staying over Sunday, is not, while upon such train, in the employ of the company and hence not a fellow-servant of employees on such train. ^^* And also where an engineer in the employ of a raUroad company was injured while riding upon a train other than the one used in connection with his duties, simply for his own convenience, he was, so far as his right of recovery from the company was involved, a stranger."* Where an employee was given tickets to and from his home and place of work, which were considered a part of his contract of employment, and he received an injm-y while riding upon the trains of his employer through the negligence of its servants, and while he was using one of such tickets, though at the time he was not going to or turning from his work, but was riding for his own con- venience, it was held that he was not to be considered an employee, but a passenger. So long as he was working from day to day for the defendant, it might be said he was in its employment, but when not so traveling for a 113. State V. RaUway Co., 63 115. Illinois Cent. R. Co. v. Md. 433. Leiner, 202 lU. 624. 67 N. E. 398, 114. Graham v. Toronto, etc. 95 Am. St. Rep. 266. R. Co., 23 U. C. C. P. 541; Torphy 116. Washburn v. Nashville R. V. Railway Co., 20 U. C. Q. B. Co., 3 Head (Tenn.) 638, 75 Am. 446; Sherman v. Railway Co., 34 Dec. 784. U. C. Q. B. 451. § 28 Existence of Eelation. 73 purpose coimected "with. Ms duties of service, lie was not to be considered an employee.^" Employee carried occasionally in return for services. Where a person was carried occasionally on a mixed train in return for services in handling baggage, etc., it was held he was not an employee of the railroad com- pany."' The mere fact that a person is riding on a train at the request of the conductor, does not render him a servant of the railroad company."^ Effect of failure to pay fare. The mere fact that the conductor of a train neglects or fails to collect fare of one in the employment of a rail- road company, of itself cannot have the effect to charge such employee with the relation of servant, when he is not actually employed on the particular day and is riding for his own convenience merely. ^^^ Nor can the conductor change the relation of one who is a servant at the time to that of a passenger by receiving and treating him as such.^^^ § 28. Servants of another working upon trains or vessels. Where there is no express exemption provided by con- tract, a railroad company is liable for the consequences of its own or its servants' negligence to persons traveling upon its trains as messengers or agents of an express com- pany, to the same extent as to other passengers, although no charge is made for their care; and one temporarily sup- plying the place of an express messenger stands in the 117. Doyle V. Fitchbxirg R. Co., 120. Ohio & M. R. Co. v. 162 Mass. 66, 37 N. E. 770, 25 MuhKng, 30 lU. 9. L. R. A. 157, 44 Am. St. Rep. 335. 121. Texas &P R. Co. v. Scott, 118. Chaney v. Loiiisiana & M. 64 Tex. 549; Sherman v. Railway R. Co., 176 Mo. 598, 75 S. W. 595. Co., 72 Mo. 62, 37 Am. Rep. 423; 119. Stalcup V. Louisville, N. Baltimore & 0. R. Co. v. State, 41 A. & C. R. Co., 16 Ind. App. 584, Md. 268. 45 N. E. 802. 74 Master and Servant. § 28 same position with him and is entitled to the same pro- tection. 122 Express messengers. It was held that an express messenger upon a train, under a contract between the railroad company and the express company, was not to be considered an employee of the former, and did not, by reason of such position, assume the risks resulting from the negligence of the railroad company or its operatives in the management of its trains.i^' It was said, however, an express messenger while riding on the car furnished him for that purpose, occupies a relation to the railroad company analogous to that of an employee, and not that of a passenger, and the duty the raUroad company owes him in respect to its appli- ances, tracks and operation of trains, is measured by that which it owes to its employees.^^* It was held that a person employed by an express company as a messenger upon the trains of a railroad com- pany, and who by the terms of the agreement between such express company and railroad company was to perform the duties of baggageman for the railroad company upon such trains, was not a servant of the latter; and the fact that the nile of the raikoad company which provided, in substance, that such persons so engaged should consider themselves employees of the raUroad company in all matters connected with the movement and government of trains, and must conform to the directions of conductors thereof, was in force, would not have the effect to place 122. Blaire V. ErieRy. Co., 66 123. Pennsylvania Co. v. Wood- N. Y. 313, 23 Am. Rep. 55; For- worth, ^6 Ohio St. 585. See also dyce V. Jackson, 56 Ark. 594, 20 Louisville, N. 0. & T. R. Co. v. S. W. 628, 597; Pennsylvania Co. Douglas, 69 Miss. 723, 11 So. 933, V. Woodworth, 26 Ohio St. 585; 30 Am. St. Rep. 582. Jenningsv. Grand Trunk R. Co., 15 124. Chicago & N. W. R. Co. Ont. App. 477; Brewer v. New v. O'Brien, 67 C. C. A. 421, York, L. E. & W. R. Co., 124N. Y. 132 Fed. 593. 59, 26 N. E. 324, 21 Am. St. Rep. 647. § 28 Existence of Eelation. 75 sucli persons in such relation. The reasoning of the court was that the agreement between the two companies was that the express company for a consideration handled the baggage of the railroad company, and that the injured servant was but the agent of the express company for that purpose. ^^^ News agents. One who travels upon a train selling articles under a contract with the company to pay a simi annually for the privilege, but who is also to supply passengers with ice water, is to be considered a passenger upon the train and not an employee. ^^^ Under the Pennsylvania statute, however, a news agent on a train is employed thereon, and hence no recovery can be had for injuries to him occasioned by the negligence of an employee of the railroad company.^" Postal clerks. A postal clerk injured while riding upon the train of a railroad company in the performance of his duties as such, was held not to be an employee of the railroad com- pany. It was said: "He occupies as advantageous a position as a passenger, if in fact he is not one."^^* 125. Union Pacific R. Co. v. son were an employee, it was held Kelley, 4 Colo. App. 325, 35 Pac. in reference to a newsboy who was 923. permitted to sell papers on the cars 126. Commonwealth v. Ver- of a railroad company, that he was mont & M. R. Co., 108 Mass. 7, 11 not within the provisions of the act. Am. Rep. 301. That persons who were in eontem- 127. Smallwood v. Baltimore plation by the legislature are those & O. R. Co., 216 Pa. St. 540, 64 who, though not employees of the Atl. 732. Under a statute of company, are nevertheless engaged Pennsylvania providing in sub- or employed on or about the com- stance (Act of April 4, 1868, P. L. pany's roads or works in the per- 58) that any person engaged or formance of some act connected employed on or about the roads, therewith. Philadelphia Traction depots, premises or cars of a rail- Co. v. Orbann, 119 Pa. St. 37, road company, not being a passen- 12 Atl. 816. ger or employee, shall only have 128. Magoffin v. Missouri Pac. such right of action and recovery R. Co., 102 Mo. 540, 15 S. W. 76, against the company for personal 22 Am. 8t. Rep. 798. (Price v. injuries as would exist if such per- Pennsylvania R. Co., 113 U. S. 76 Master and Servant. § 28 A passenger, in the legal sense of the word, is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, such as the payment of fare or that which is accepted as an equivalent therefor; and a postal clerk is generally considered a passenger. ^^' In Pennsylvania, a route or mail agent riding upon a train for the discharge of his duties is not a passenger, but comes within the provision of the act of April 4, 1868, relating to persons not employed, lawfully engaged or employed on or about the roads, works, etc., of a raUroad company.^'" Proprietor of bar on vessel. It was said that where an express company hires its freight transported on the steamer and railroad of a company engaged in such business, and hires an agent to take charge of such freight, whose passage is paid for in the contract, such agent occupies the position of an ordi- nary passenger, as respects the liabilities of the company for injuries he may sustain, caused by the negligence of its employees; and where such person rents from such company a room upon its boat for selling Kquors and cigars, at a stipulated rent, such company to carry and board him as a part of the contract, that does not change his relation. The operating a bar on his own account was disconnected from his employment as agent of the express company, and if he received an injury through 218, 28 L. Ed. 980, 5 Sup. Ct. Rep. Y. 444, 69 Am. Dee. 623; Seybolt 427, and Pennsylvania R. Co. v. v. New York L. E. & W. R. Co., 95 Price, 96 Pa. St. 256, distinguished.) N. Y. 562, 47 Am. Rep. 75; Ham- 129. Gulf, C. & S. F. R. Co. v. mond v. Nortli Eastern R. Co., 6 S. Wilson, 79 Tex. 371, 15 S. W. 280, C. 130, 24 Am. Rep. 467; Houston 11 L. R. A. 486, 23 Am. St. Rep. & T. C. R. Co. v. Hampton, 64 Tex. 345; Airowsmith. v. Nashville & D. 427; Libby v. Maine Cent. R. Co., R. Co., 57 Fed. 165; Cleveland, C. 85 Me. 34, 26 Atl. 943, 20 L. R. A. C. & St. L. R. Co. V. Ketcham, 133 812. Ind. 346, 33 N. E. 116, 19 L. R. A. 130. Pennsylvania R. Co. v. 339, 36 Am. St. Rep. 550; Mellor Price, 96 Pa. St. 256; Price v. V. Missouri Pac. R. Co., 105 Mo. Pennsylvania R. Co., 113 U. S. 218, 455, 16 S. W. 849, 10 L. R. A. 36; 28 L. Ed. 980, 5 Sup. Ct. Rep. 427. Nolton V. Western R. Corp, 15 N. § 29 Existence of Eelation. 77 the negligence of the servants of the company, the rule applicable to passengers would apply. This was said where the person occupying such position, while standing upon the platform of a station, in the act of boarding a baggage car of the defendant, was injured by the explosion of the boiler of the engine attached to the train. ^^^ Sleeping car porters. A sleeping car porter is not a fellow-servant of servants of the railroad company over the lines of which his car was operated at the time of his injury. ^^^ § 29. Servants of different contractors or persons. The question sometimes is involved of the liabiKty of one party for injuries to an employee of another occasioned by the negUgence of employees of the former where all are engaged in or about the same general work. In some cases the circumstances may be such that the servants in the general employ of one, as already stated, may be- come the servants of another for the time being or for the particular work, or it may be that there is no privity of contract. In the latter class of cases, it seems the Ua- bility of the one party may be placed upon the ground of an implied invitation to use defective premises or appK- ances where such is involved. Thus, by a contract with the principal contractor for the erection of an elevator building, a fire extinguisher company was to construct and place certain apparatus in the building and the former was to furnish the staging needed in performing the work. Through the negligence of the general contractor's servants in constructing the staging, a defective plank was used in such staging, and by reason thereof an em- ployee of the fire extinguisher company was killed. It was held that such general contractor was Kable for such death, although there was no privity or contract relation between it and the deceased, on the ground that it had 131. Youmans v. Contra Costa v. Hamler, 215 III. 526, 74 N. E. S. N. Co., 44 Cal. 71. 705, 1 L. R. A. (N. S.) 674, 106 132. CHeago, R. I. & P. R. Co. Am. St. Rep. 187. 78 Mastee and Sekvant. § 29 impliedly invited him to use such staging, and also on the ground that the negligent use of the defective plank was an act imminently dangerous to human life.^^' The court cites many cases ia support of both prin- ciples, some of which appear to be closely analogous.^'* It seems that under somewhat similar facts, a different conclusion was reached by another court, which case has been considered under the head of servants in the general employ of one working temporarily for another. The facts in that case were that the defendants were repairing a building and employed a skUful carpenter to superintend the whole job. When the time came for putting on the gutters, one of the defendants told the carpenter that he wanted a staging put up, and a staging for the sole purpose of putting on the gutters was erected, under the direction of the carpenter, who used his own brackets to support it. The brackets were insecurely fastened to the building. On the next day the defendants ordered the gutters of a coppersmith and directed him to send a man to put them up. The plaintiff was thus sent, and when he arrived was directed by such defendant where to go to work upon the staging, which fell, causing him injury. It was held that the plaintiff and the carpenter were fellow-servants and the negUgence was that of the carpenter. ^'^ Servants of different employers; master not liable for negligence of servant of another. It is weU settled that the contractor for the wood work on a building is not hable for injmy to his employee from the negligence of an employee of the contractor of the mason work, as for instance, where injured by a brick being dropped upon him, and the same where injury is 133. Briglit V. Barnett Record gious Soc, 125 Mass. 487; Powers Co., 88 Wis. 299, 60 N. W. 418, 26 v. Harlow, 53 Mich. 507, 19 N. W. L. R. A. 524. 257, 51 Am. Rep. 154; Heaven v. 134. r\mong others, Devlin v. Pender, L. R. 11 Q. B., Div. 503. Smith, 89 NT. Y. 470, 42 Am. Rep. 135. KiUea v. Faxon, 125 Mass. 311; Mulchey v, Methodist Reli- 485. § 29 Existence of Eelation. 79 caused to the employees of one contractor by the em- ployees of another. ^'^ Servant injured by subcontractor's defective appli- ance. And also that an employee cannot recover from his master for injuries received in the course of his employ- ment where such injuries were caused by a subcontractor's defective appUance.^^' Owner furnishing machinery to contractor. At common law and under the Massachusetts statute providing that the employment of a subcontractor shall not bar the employer's UabUity for injuries to employees of the subcontractor from defects in the machinery fur- nished by the employer, an owner who contracts to have work done by an independent contractor with the owner's machinery, owes the same duty to the employees of the contractor as if they were his own.^'^ Seller of appliance. An independent contractor, seller of an appHance, owes the servant of the buyer, who voluntarily becomes the employee of the seller by subjecting himself to the com- mands of the latter, the duty of competent superintend- ence, but imless the employee knew that he was working for the independent contractor and consented to the trans- ference, the relation was not established, for he could not be transferred from one master to another without his consent, either express or implied.^'' 136. Penner v. Vinton Co., 288, 76 N. E. 1048. See also infra, 141 Mich. 77, 104 N. W. 385. chapter on appliances. 137. Hughes v. Leonard, 199 139. Bowie v. Coffin Valve Co., Pa. St. 123, 48 Atl. 862. 200 Mass. 571, 86 N. E. 914; Bowie 138. Sullivan v. New Bedford v. Pitchburg Steam Engine Co., Gas & Edison Light Co., 190 Mass. 200 Mass. 571, 86 N. E. 914. 80 Master and Servant. § 30 § 30. Servants of lessees. The lessee of a railroad or part of it, is held to be the agent of the lessor in respect to maintenance and defects in construction of the road and its equipments.^*" Public service corporations, such as railroads, cannot lease property without legislative consent, and an attempt to do so is a mere nuUity. A lessor raUroad therefore will be liable for the torts of the lessee in operating the road, exactly as though the lease had not been made.^*^ Where, however, such a company leases its Unes under legislative consent, it will not be hable as master for the injuries to employees of such lessee, injured through the latter's negligence.^*^ Where a master leases his premises from a third person, he is liable to an employee for injuries caused him by a defect therein, if he woiild be so Uable in case the premises were owned by him.^*' A servant in the employ of an iron company, injured prior to a lease of its property to a steel company which continued the old officers in office and so publicly an- nounced, the lease providing that all business transacted by the iron company after a fixed date, which was prior to the date of the accident, should be for the use and on accoimt of the steel company, had no ground of recovery against the steel company, but should look to the com- pany which employed him.^** The relation of master and servant, however, does not exist between the lessor of a factory and the servants, under a contract that the lessor should have the profits of the business over and above a fixed sum."* 140. Harden v. North Carolina ]43. Adams Express Co. v. R. Co., 129 N. C. 354, 40 S. E. Smith, 24 Ky. L. Rep. 1915, 72 S. 184, 55 L. R. A. 784, 85 Am. St. W. 752. Rep. 747. 144. Wieder v. Bethlehem Steel 141. Booth V. St. Louis, I. M. Co., 205 Pa. St. 186, 54 Atl. 778. & S. R. Co., 217 Mo. 710, 117 S. 145. Ault Woodenware Co. v. W. 1094. Baker, 26 Ind. App. 374, 58 N. E. 142. Swice's Adm'x v. Mays- 265. ville & B. S. R. Co., 25 Ky. L. Rep. 436, 75 S. W. 278. § 31 Existence of Eelation. 81 § 31. Volunteers and persons invited to assist. A "volunteer" is one who introduces himself into mat- ters which do not concern him and does or undertakes to do something which he is not legally or morally bound to do, or which is not in pursuance or protection of any interest. To such a person, in the absence of knowledge of peril, no affirmative duty to exercise care, is due.^" A person who volunteers to assist an employee, whether by request or otherwise, does not become an employee of the master in the absence of proof of an emergency or necessity for his employment, and then only upon re- quest, nor unless the servant requesting assistance had authority to engage an assistant. ^^^ The master owes him no duty except what he owes a trespasser.^** He is only bound to use care not to injure him after notice of his danger^*^ and infancy does not change the relation of the parties."" If a person volunteers to assist the servant of another, the master as such owes him no duty; he assvimes aUthe ordinary risks incident to the situation, and he cannot recover from the master for an injury caused by a defect in the instrumentaUties used, or by the mere neghgenoe of 146. Kelly v. Tyra, 103 Minn. 149. Atlanta & W. P. R. Co. v. 176, 114 N. W. 750, 115 N. W. 636, West, 121 Ga. 641, 49 S. E. 711, 17 L. R. A. (N. S.) 334. 67 L. R. A. 701, 104 Am. St. Rep. 147. Grissom v. Atlanta & B. 179; Evarts v. St. Paul, M. & M. Air Line Ry., 152 Ala. 110, 44 So. R. Co., 56 Minn. 141, 57 N. W. 459, 661, 13 L. R. A. (N. S.) 561, 126 22 L. R. A. 663, 45 Am. St. Rep. Am. St. Rep. 20; Longa v. Stanley 460; Everhart v. Terre Haute & I. Hod Elevator Co., 69 N. J. L. 31, R. Co., 78 Ind. 292, 41 Am. Rep. 54Atl. 251; Kentucky Cent. R. Co. 567; Chicago & E. I. R. Co. v. V. Gastineau's Adm'r, 83 Ky. 119; Argo, 82 lU. App. 667; Church v. W. B. Conkey Co. v. Bueherer, 84 Chicago, M. & St. P. R. Co., 50 HI. App. 633; Blair v. Grand Minn. 218, 52 N. W. 647, 16 L. R. Rapids & I. R. Co., 60 Mich. 124, A. 861. See also Derrickson's 26 N. W. 855; Langan v. Tyler, Adm'r v. Swann-Day Lumber Co., 51 C. C. A. 503, 114 Fed. 716. 115 S. W. (Ky.) 191. 148. Central of Ga. R. Co. v. 150. Atlanta & W. P. R. Co. v. MulUns, 7 Ga. App. 381, 66 S. E. West, supra, preceding note. 1028. 1 M. & S.— 6 82 Masteb and Servant. § 31 the servants. If, however, after discovering that such volunteer has placed himself in a position of danger, even through his own negligence, the servants fail to exercise reasonable care to avert the danger, the master will be liable. This liability does not rest on any contract obhga- tion, but on the general duty not to inflict a wanton or wilful injury on another. As respects this duty, a volun- teer occupies at least as favorable a position as a trespasser. This rule was applied where a boy, at the request of the conductor, assisted in uncoupling cars, while cars were being kicked in on the side track, and was injured.^" A mere volxmteer assisting a servant at the latter's request to fix a machine used to generate power to run an elevator, was held not a servant and the master owed him no duty in respect to furnishing a safe place for work."^ Such is the rule as applied in most jurisdictions. How- ever, some courts do not recognize it in full, but where not so recognized, the distinction apparently is that the employee requesting such assistance has implied authority to engage others, even temporarily. Thus it was held that a stranger in a miU, who, at the request of a section boss therein, procured or attempted to procure some oil from an oU can to oil certain rollers, became, as to the particular act, an employee, rendering the master liable for failure to furnish a safe place to work."' So where a bystander, on the occasion of a fire at a railroad station, was called in by the station agent to assist in pushing cars from the fire he was held a fellow- servant of a section hand engaged in the same work, and the company not responsible for an injury sustained by the negligence of the section hand."* 151. Evarts v. St. Paul, M. & 153. Tucker v. Buffalo Cotton M. R. Co. 56 Minn. 141, 57 N. W. Mills, 76 S. C. 539, 57 S, E. 626, 459, 22 L. R. A. 663, 45 Am. St. 121 Am. St. Rep. 957. Rep. 460. 154. Jaokson v. Southern Ry., 152. Langan v. Tyler, 51 C. C. 73 S. C. 557, 54 S. E. 231. A. 503, 114 Fed. 716. § 31 Existence of Eelation. 83 And where an employee was injured while assisting a servant of the defendant in the matter of laying a pipe in a trench, it was said by the court, he was not a tres- passer, but he that was a volunteer in the sense that the emplojrment was voluntary. He, however, became a servant by the request of the foreman and entitled to the same protection, and probably subject to the same risks as other servants in the defendant's employ. The court stated a rule applicable to the case as follows: "One who at the request of the men in charge, temporarily assists in the defendant's work not expecting any pay, is for the time being a servant of the defendant, and en- titled to the same protection as any other servant." The injured employee was regularly employed in digging the trench, but the court does not seem to hold that such employment placed him in any better position, than if he were a mere stranger."^ Upon a subsequent appeal it was held that the foreman was his fellow-servant."^ Where an employee was manager of the hotel cars of a railway company and his duties included cooking for employees, and a woman represented as his wife was permitted to remain with him in such cars, to do such cooking, with the knowledge and consent of the company, she was regarded as its employee or servant, and entitled to recover as such for personal injuries received through the negligence of other employees of the company even though she did not receive any pay for her services."^ An employer (defendant in the action) was delivering a heavy fly wheel to a third person at the latter's factory, and an employee of the latter, assisting either voluntarily or at the request of the former's foreman, or in obedience to the direction of the latter's foreman, was injured by the act of the defendant's foreman. It was held that if he 155. Johnson v. Ashland Water 157. Pugmire v. Oregon Short Co., 71 Wis. 553, 37 N. W. 823, 5 Line R. Co., 33 Utah 27, 92 Pae. Am. St. Rep. 243. 762, 13 L. R. A. (N. S.) 565, 126 156. Johnson v. Ashland Water Am. St. Rep. 805. Co., 77 Wis. 51, 45 N. W. 807. 84 Mastek and Servant. "^ 31 was a mere volunteer, that is, assisted entirely on his own motion, the defendant would not be liable. If he assisted at the request of the defendant's foreman he was in no better position than a mere volunteer. It was said: "A servant cannot by any act of his impose upon his master a higher liability for neghgence than the master is under to the servant himself. Nor is the defendant's liability in any manner increased by the fact that the injured employee joined in the service in obedience to an order from his superior."^^* Where the danger of removing slack was obvious to the person employed by a raihoad company to remove it, it was held it is not hable to a person employed by such employee, who is burned by the slack, there being no change in conditions or location. ^^^ Employee taking up new work. A distinction is made by some courts between a stranger volimtarily performing service at the request of one with- out authority, and an employee engaged in another capac- ity in so doing. It was said: "The distinction running through aU the cases is this: that where a mere volunteer, that is, one who has no interest in the work, undertakes to assist the servants of another he does so at his own risk. In such a case the maxim respondeat superior does not apply. But where one is employed in another capacity, and at the request of or with the consent of another's servants tmdertakes to assist him, he does not do so at his own risk, and if injured by their carelessness, their mas- ter is responsible. In such a case the maxim of respondeat superior does apply. The hinge upon which the cases turn is the presence or absence of self interest. In one case the person injured is a mere intruder or of&cious intermed- dler. In the other he is a person in the regular pursuit of his own business, and entitled to the same protection as any one whose business relations with the master expose 158. Wischam v. Ricliards, 136 159. Branstrator v. Keokuk & Pa. St. 109, 20 Atl. 532, 20 Am. W. R. Co., 108 la. 377, 79 N. W. St. Rep. 900, 10 L. R. A. 97. 130. § 31 Existence of Eelation. 85 him to injury from the carelessness of the master's servants."" In a prior case in the same court, where the facts were that the master of defendant's ferry boat, whose duty it was to transport cars across a river, attempted to uncouple cars at the request of the conductor of one of defendant's trains, and was killed, it was said that it makes no difference in regard to the liability of the defendant that the injured employee came into the serv- ice voluntarily, as to assist the defendant's servants in a particular emergency, and was injured by their negligence; for by volimteering his services he could not have greater rights, nor could he impose any greater duty on the defendant than would have existed had he been a hired servant. It was held that the same rule was appUcable if a servant, of his own motion or at the request of a fellow-servant, should undertake temporarily to perform the duties of a fellow-servant. The facts were that the master of defendant's ferry boat, whose duty it was to transport ears across a river, at the request of a conductor of one of defendant's trains, attempted to loncouple cars and was killed."^ The distinction made between a stranger and an employee is not recognized by all courts. Thus it was held that an employee who, at the request of another employee, without authority to direct him, assists the latter, is a mere volunteer and the master not liable for injuries sustained by him through the negligence of such employee."^ And where a person employed by a railroad company as a car inspector voluntarily undertook the work of a 160. Welch V. Maine Cent. R. 162. Southern Ry. v. Pope's Co., 86 Me. 552, 30 Atl. 116, 25 Adm'r, 133 Ky. 835, 119 S. W. 237; L. R. A. 658. See Freeman v. San Church v. Chicago, M. & St. P. R. Antonio Brewing Co., 38 Tex. Civ. Co., 50 Minn. 218, 52 N. W. 647, App. 396, 85 S. W. 1165. 16 L. R. A. 861. 161. Osborne v. Knox & L. R. Co., 68 Me. 49, 28 Am. Rep. 16. 86 Mastee and Servant. § 31 switching crew, it was held the relation of master and servant was temporarily suspended."^ Where the employer's servant, at the request of an employee of an independent contractor, assisted the latter in releasing an elevator and was killed, his em- ployer was not liable. The elevator company was not liable since if a servant he was a fellow-servant of the engineer. If not he was a mere volunteer."* A miner was not a volunteer in fixing the blast of a fellow-miner, who had left before quitting time, which was in accord with the universal custom of the mine."* Employee doing forbidden act. A boy employed to work in a brick plant was held a mere volunteer where, without any direction or invitation so to do, he went to another place some distance away, and got upon a ladder and held a belt for a person engaged in repairing it. The foreman told him. he had no busi- ness there and ordered him to get down from the ladder and return to his work. A few minutes later the belt again broke and he returned and got on the ladder, which broke, and he fell in the machinery and was killed."' Where one assists servants of another at their request to expedite his own business or that of his master. In such cases, the ground of liability does not involve the relation of master and servant. The one assisting is in no sense a servant. The ground of hability, if there is a liabiUty, rests upon the ground that, though per- forming a service beneficial to both, the party is so doing in his own behalf, and not as the servant of the other, and 163. Louisville & N. R. Co. v. Render, 31 Ky. L. Rep. 1274, 104 Pendleton's Adm'r, 31 Ky. L. Rep. S. W. 996. 1025, 104 S. W. 382. 166. Lindquist v. King's Crown 164. Longav.StanleyHodEleva- Plaster Co., 139 Iowa, 107, 117 tor Co., 69 N. J. L. 31, 54 Atl. 251. N. W. 46. 165. McHenry Coal Co. v. § 31 Existence of Eelation. 87 is entitled to the same protection against his neghgenee as if attending to his own affairs.^" Thus, where a passenger upon a street ear, at the request of the driver, assisted in placing a derailed car on the track and was injured by the carelessness of the driver of another car of the defendant, it was held that such passenger did not engage in the service as a mere volimteer, nor did he become a feUow-servant with the negligent driver."^ Where a person injured had a personal interest in the machine as one of the co-partners who were to use the machine in their business, to see that it was put in proper shape, and he was there for the express purpose of repre- senting the owners and himself and to take possession, and he was injured through the neghgenee of one of the employees of the defendant in starting the machine, it was held that he was neither a servant nor a volunteer, and hence had a right of action for the neghgenee of defendant's servants."' Where, at the request of the owner of a freight car, the agents of a railroad company attached his car to a pas- senger train contrary to the instructions and rules of the company, he agreeing to run all risks and also to attend the brakes on his car, it was held this did not constitute him a person in the employment of the company, so as to prevent him from bringing suit against the company for damages for negligence in the operation of such train whereby he was injured."" 167. Welch V. Maine Cent. Co., 95 Minn. 329, 104 N. W. 132. R. Co., 86 Me. 552, 30 Atl. 116, 168. Street Railway Co. v. 25 L. R. A. 658; Church v. Chicago, Bolton, 43 Ohio St. 224, 1 N. E. 333, M. & St. P. R. Co., 50 Minn. 218, 54 Am. Rep. 803. See also Baynes 52 N. W. 647, 16 L. R. A. 861 ; Street v. BiUings, 30 R. I. 63, 73 Atl. 625. Railway Co. v. Bolton, 43 Ohio St. 169. Meyer v. Kenyon-Rosing 224, 1 N. E. 333, 54 Am. Rep. 803; Mach. Co., 95 Minn. 329, 104 LouisviUe & N. R. Co. v. Ward, N. W. 132. 98 Term. 123, 38 S. W. 727, 60 Am. 170. Lackawanna & B. R. Co. St. Rep. 848;Easonv.,S. &E.T.R. v. Chenewith, 52 Pa. St. 382, 91 Co., 65 Tex. 577, 57 Am. Rep. 606; Am. Dec. 168. See also Lockhart v. Meyer v. Kenyon-Rosing Mach. Liehtenthaler, 46 Pa. St. 161. 88 Master and Servant. § 32 Where a stone mason employed to erect a building, in need of stone, wMeli were upon a car, and waiting for it, with, the consent of the owner of the building, mounted the car to assist in unloading, having a direct interest in expediting the work, he was not a mere vol- unteer, to whom the railroad company owed no duty to have the car in a reasonably safe condition."^ Person learning duties. Upon a young person applying for employment on a railroad, it was agreed that he should go on the road and learn by practice and observation the duties of a flagman, being furnished with a pass. He performed the duties of a flagman under control of conductors. He was IdUed while in a caboose by a rear end collision. It was held he was an employee and a fellow-servant of those by whose neghgence he was kUled."^ Employee acting as chief of volunteer fire company. Where railroad employees organize a volunteer fire company, and the railroad company furnishes apparatus for the use of the firemen, permits them to driU at regular intervals during work hours, without deducting time, and allows the chief, a machinist, an hour each week to inspect the shops as a precaution against fire, it is the chief's duty, in case of fire, to aid in extinguishing it, and in so doing he acts as an employee.^'' § 32. Authority of employee to employ assistants. Con- ductor. Where a brakeman is absent and the proper and safe management of the train so requires, the conductor in charge has authority to supply the place of the absent brakeman. ^^* 171. MoCoimell v. Pennsyl- O. & T. P. R. Co., 13 Ky. L. Rep. varua R. Co., 223 Pa. St. 442, 72 670, 18 S. W. 11. Atl. 849. 174. Sloan v. Central Iowa R. 172. Huntzicker V. lUinois Cent. Co., 62 Iowa, 728, 16 N. W. 331; R. Co., 64 C. C. A. 78, 129 Fed. Georgia Pae. R. Co. v. Propst, 83 548. Ala. 518, 3 So. 764; Georgia Pae. 173. Collins v. Cincinnati, N. R. Co., v. Propst, 85 Ala. 203, 4 § 32 Existence of Eelation. 89 So in case of sudden emergencies, where the safety of the train demands extra help, it is within the imphed authority of the conductor to employ them."^ But a conductor, while haAdng authority to employ a brakeman when one of the regular crew is absent, or in an emergency, has no such authority imder ordinary condi- tions. A person therefore, while upon the train, assisting to load or unload freight of his own voUtion, is a mere volunteer. ^'^ Simply asking or ordering one to perform a single act, such as making a coupling or turn a single switch, does not thereby create the relationship of master and servant as to such act."^ More is essential than a mere request or order to couple ears at a time and place, or doing a single act, to constitute an emplojonent within the scope of the imphed authority of the conductor. It must be to render service to some extent continuous in its natute.^^* However, where cars detached from a train were de- scending a grade and the train crew not being near, the conductor called upon a person who was near to stop the cars and in so doing he was injured, it was held, apparently contrary to the rule just stated, that he thus became a servant of the company under the rule that a conductor of a train in an emergency, is authorized to employ a servant to assist him."^ A conductor is not clothed with authority to permit a person to ride on Ms train, under a promise to help load So. 711; Church v. Chicago, M. & & St. P. R. Co., 50 Minn. 218, 52 St. P. R. Co., 50 Minn. 218, 52 N. W. 647. 16 L. R. A. 861. N. W. 647, 16 L. R. A. 861. 176. Clarke v. Louisville & 175. McDaniel v. Highland N. R. Co., Ill S. W. (Ky.) 344. Ave. & B. R. Co., 90 Ala. 64, 8 So. 177. McDaniel v. Highland 41; Eason v. S. & E. T. R. Co., Ave. & B. R. Co., 90 Ala. 64, 8 So. 65 Tex. 577, 57 Am. Rep. 606; 41. Street Railway Co. v. Bolton, 43 178. Georgia Pac. R. Co. v. Ohio St. 224, 1 N. E. 333, 54 Am. Propst, 85 Ala. 203, 4 So. 711. Rep. 803; Meyer V. Kenyon-Rosing 179. LouisvUle & N. R. Co. v Mach. Co., 95 Minn. 329, 104 Ginley, 100 Tenn. 472, 45 S. W. N. W. 132; Church v. Chicago, M. 348. 90 Master and Servant. § 32 and unload freight, and where one such is permitted to ride under such conditions, the carrier owes him neither the duty owing to a passenger or employee.^*" The Massachusetts court has held that it was within the authority of a conductor to request an employee of an oil company to go upon a car, where such oil company owned the track where the train was standing, and also that if such request was recognized and obeyed the two servants became fellow-servants though not having a common master. It was said it was a question for the jury whether there was not a temporary change of em- ployers.^" Brakeman. A brakeman it appears, has no such impKed authority as inheres in the position of a conductor. ^^^ Thus, where an employee voluntarily assisted a brake- man at the latter's request in loading a piano on a train, it was held he as to such act was simply a volimteer and the master owed him no other duty.^*' So where the plaintiff's evidence showed that he put himself under the conductor to work his way instead 180. Vassor v. Atlanta Coast brakeman had no authority to em- Line R. Co., 142 N. C. 68, 54 S. E. ploy additional men to assist in the 849, 7 L. R. A. (N. S.) 950. switching. The fact that the exist- 181. Flynn v. Boston & M. R. ing force might have been insuffi- Co., 204 Mass. 141, 90 N. E. 521. cient to do the work did not, under 182. A construction train of the circumstances, give him any im- defendant, in charge of a conductor, pHed authority to do so; that if having pulled into a station, the any one on the ground had such conductor temporarily left the authority, it was the conductor, train to attend to his usual duties at The plaintiff was a mere volunteer, the station, leaving the trainmen to and assumed all the risks of the attend to some switching imder situation. The defendant did not the direction of the head brakeman. bear to him the relation of master The plaintiff, a bystander at the or employer and owed him no such station, got on the cars to assist in duty. Church v. Chicago, M. & switching, and while doing so sus- St. P. R. Co., 50 Minn. 218, 52 tained injuries caused by the N. W. 647, 16 L. R. A. 861. movement of certain ear trucks 183. Cincinnati N. 0. & T. P. which were loaded on one of the Co. v. FineU's Adm'r, 108 Ky. 135, cars and which were not properly 65 S. W. 902, 57 L. R. A. 266. blocked. It was held that the § 32 Existence of Eblation. 91 of paying his fare as a passenger, and that without the conductor's iastructions he took orders from a brakeman to couple a ear to the train and was injured while so doing, the injury being due to the temporary effects of cold weather on the coupUngs and not to any fault or negUgence of the employees of the company, it was held a nonsuit was proper.^** Engineer. An engineer has no implied authority to employ assist- ants except perhaps in an emergency to assist him as to matters directly connected with the engine or its use; and where he requested a lad to give a helping hand to some of the company's employees in loading a few ties upon the engine, and then he rode upon the engine to the place of their use, he was but a volunteer.^** Station agent. It was said that if a person undertakes voluntarily to perform service for a corporation, and an agent of the corporation assents to his performing such service, he stands in the relation of a servant of the corporation while so engaged; and this rule was appUed where a boy vol- unteered to go upon an errand for the defendant's station agent. ^^® 184. Sparks v. East Tennessee, he should have the next place that V. & G. R. Co., 82 Ga. 156, 8 S. E. was open, and that in the mean- 424. time he should assist the station 185. Holms V Cromwell & agent at the station where he had Spencer Co., 51 La. Ann. 352, 25 lived, as he had been doing before So. 265. See also Derrickson's (but voluntarily and without pay) ; Admr. v. Swami-Day Lumber Co., that thereafter he did assist said 115 S. W. (Ky.) 191. Has no agent by doing various things under authority to employ a brakeman. his direction, and such agent gave Mickelson v. New East Tintic R. him a switch key so that he could Co., 23 Utah 42, 64 Pac. 463. open and close switches; that on the 186. Barstow v. Old Colony day of the accident the agent's regu- R. Co., 143 Mass. 535, 10 N. E. lar assistant was absent and the 255. Where the plaintiff testified agent requested the plaintiff to help that the defendant's train dis" him out, and that he was injured patcher, to whom he had applied for while riding to a switch for the a position as brakeman, had told him purpose of closing it, in that he was 92 Master and Seevant. §33 Agent. If an agent is given sole charge of the preparation and exhibition of cumbersome and complicated machinery, and calls to his assistance one who in good faith enters upon such work, the person thus employed is not a volunteer or a trespasser, but for the time being assumes the relation of servant to the master."' § 33. Public oflficers. Generally, officers of a city, county, town, village, etc., are not, when acting in discharge of their duties, con- sidered as servants of the miinicipality."* standing upon the steps of the cars, leaning outward, prepared to jump from the car while in motion, and his body came in contact with cars left close to the main track upon a side track, and there was testimony tending to show that the station agent had authority to employ a helper in the absence of any of the regular force, though this was de- nied, and the agent denied he had employed the plaintiff or requested his assistance, it was held the evidence was sufficient to sustain a finding by the jury that the plain- tiff was at the time in the employ of the defendant. Button v. Chi- ago, M. & St. P. R. Co., 87 Wis. 63, 57 N. W. 1110. 187. Maxson v. J. I. Case Threshing Mach. Co., 81 Neb. 546, 116 N. W. 281, 16 L. R. A. (N. S.) 963. 188. Where a municipal corpor- ation elects or appoints an officer in obedience to an act of the legis- lature to perform a pubUc service in which the town has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to perform in pursuance of a duty imposed by law for the general welfare of its inhabitants or of the community, such ofl&cer cannot be regarded as the servant or agent of the town, for whose negligence or want of skill in the performance of duties a town or city can be held liable. To the acts and conduct of an ofi&cer so appointed or elected the maxim respondeat superior is not applicable. Haf- ford V. New Bedford, 16 Gray (Mass.) 297. A town is not liable to individuals for its neglect or omission to perform or its negli- gent performance of those duties which are imposed upon all towns without their corporate assent and for pubHo purposes, unless the right of action be conferred by statute. Mitchell v. City of Rock- land, 52 Me. 118. Thus a town which has assimied the duties of a school district is not liable for an injury sustained by a scholar attending the public schools from a dangerous excavation in the school yard, owing to the negligence of the town oflBloers. Bigelow v. Ran- dolph, 14 Gray (Mass.) 541. Nor is a town Kable where the imperfect construction of a town house causes §33 Existence op Eelation. 93 This is true as to members of the flxe department ;^^^ police officers;^'" superintendent of work house ;"^ health injury. Eastman v. Meredith, 36 N. H. 284, 72 Am. Dee. 302. Nor for an injury sustained by reason of the negligence of a laborer em- ployed by one of its highway sur- veyors to aid him in the perform- ance of the duties of his ofQce. Walcott V. Swampscott, 1 Allen (Mass.) 101. A city government cannot legally ratify the negligent, careless or tortious acts of its offi- cers, knowing them to be such, so as to make the city liable therefor. Mitchell V. City of Rockland, 52 Me. 118; Perley v. Georgetown, 7 Gray (Mass.) 464; Buttrick v. Lowell, 1 Allen (Mass.) 172, 79 Am. Dec. 721; Boone v. Utica, 2 Barb. (N. Y.) 104; Hodges v. Buffalo, 2 Denio (N. Y.) 110. 189. Members of the fire de- partment, although appointed by the corporation, are not, when acting in the discharge of then- duties, servants or agents in the emplojrment of the city, for whose conduct the city can be held liable, but they act rather as pubhc offi- cers or officers of the city charged with a public service, for whose negligence or misconduct in the discharge of official duty no action will lie against the city, unless expressly given, and hence the maxim respondeat superior has no application. Hayes v. City of Oshkosh, 33 Wis. 314, 14 Am. Rep. 760. Cities are not liable for the neghgent acts of the members of their fire department. It is not essential that the doctrine of the exemption of cities be placed upon the ground that the service being rendered is being rendered in pur- suance of the requirements of law. The exception to the rule obtains even where there is a voluntary exercise of power given by the stat- ute, and may well rest upon the ground of pubhc policy which would forbid the existence of such hability. Wilcox v. City of Chi- cago, 107 111. 334, 47 Am. Rep. 434; Hayes v. City of Oshkosh, 33 Wis. 314, 14 Am. Rep. 760. The members of its fire department act not as its servants or agents, but as officers with a public service, for whose negligence therein no action lies against it. Smith v. City of Rochester, 76 N. Y. 506. 190. A police officer is not a servant of the city which appoints Mm in any such manner as to take away his right of action against it for an injury by reason of a defect- ive highway. Kimball v. City of Boston, 1 Allen (Mass.) 417. A city is not Uable for an assault and battery committed by its police officers, even though it was done in an attempt to enforce an ordi- nance of the city. They can in no sense be regarded as agents or serv- ants of the city. Their duties are of a pubUo nature. Buttrick v. Lowell, 1 AUen (Mass.) 172, 79 Am. Dec. 721. 191. A municipal corporation is not answerable in damages for the> negligent acts of its officers in the execution of such powers as are con- ferred upon the corporation or its officers for the pubhc good. Hence it was held that a prisoner com- mitted to the work house, who while at work was kicked by a vicious mule which the work house 94 Masteb and Servant. §33 officers of a town;"'' transit commissioners engaged in the building of a subway;"^ etc. Where, however, a city engages in the construction of a special work and employs a superintendent and laborers to perform the same, the maxun respondeat superior does apply."* Policeman acting under special appointment. The question of the relation of a poUceman or watch- man appointed or delegated by pubUc authority to the person in whose interest or at whose request he is ap- pointed, has been the subject of much discussion and some conflict in the authorities. The distinction is made by some cotu'ts between an act done for the protection of the property of the person in whose interest he is acting and an act done for the purpose of pvuiishing the offender for that which has already been done. In the one ease he may be the servant of such person, where employed and superintendent directed him to harness, could not recover of the city for injuries so received, even though the superintendent knew the mule was vicious. Ulrieh v. City of St. Louis, 112 Mo. 138, 20 S. W. 466, 34 Am. St. Rep. 372; Jefferson County v. St. Louis County, 113 Mo. 619, 21 S. W. 217. 192. Neither the relation of master and servant nor principal and agent exists between a town and its health offlcers. Nor is the town liable for their unlawful or negUgent acts. Mitchell v. City of Rockland, 52 Me. 118. 193. Work on the subway au- thorized by the statutes of 1894, in the city of Boston, is a pubUc work over which the city had no control, but was in charge of the transit commissioners who were public offi-cers engaged in the performance of public duties, and hence they were not the servants or agents of the city. A workman injured has no cause of action against the city. Mahoney v. Boston, 171 Mass. 427,50N.E.939. 194. It was held that where an employee was killed by the negli- gence of a superintendent employed to superintend and construct a cistern wall for the use of its fire department, in the manner of con- struction of such wall, his adminis- tratrix could maintain an action against the city. It was said that it was the legal duty of the city to construct cisterns for fire purposes and it was engaged in an attempted performance of this duty, through its own private agencies, and not through the fire department or its of&cers or other of&cers of the city whose duty it was to perform such work. Mulcairns v. City of Janes- viUe, 67 Wis. 24, 29 N. W. 565. § 33 Existence op Eelation. 95 paid by him, while in the other he would not be so con- sidered. Thus it is held that a special policeman em- ployed and paid by a railroad company as such, though holding a commission from the state, was an employee of the company for whose acts in protecting the property of the company the latter was responsible."^ It was stated by the Michigan court that when such officers are acting purely in their capacity as poUce officers, the person at whose instance they are employed is not responsible for their acts. It is only when such person has employed or directed such pohce officers to act for it, that he becomes responsible; and it was held that where such an officer assisted the conductor in ejecting a passenger from a car, at the latter's request, he was the servant of the company as to such act. If he acted solely in his capacity as an officer to preserve the peace or prevent a disturbance, then he was acting in his pubUc or official capacity."^ The same distinction is made by the West Virginia court. Thus it is stated: "A special officer appointed and commissioned by the Governor at the instance of a railroad company, under the provisions of the statute, and paid by such company for his services, is prima facie a public officer for whose wrongful act such company is not liable. If, however, such an officer is engaged in spe- cial service for the company such as guarding its property, or enforcing obedience to its rules and regulations, and does a wrongful act for which the injured party is entitled to damages, and such act was within the scope of such service or employment, the company is liable as in the case of its regular employees, such as conductors and station masters. But the company is not liable for a false arrest, assault and battery or malicious prosecution not directed nor instigated by it, and founded upon an alleged breach of the peace at one of its stations, in no way affecting or 195. Deok v. Baltimore & 0. Md. 313, 20 Atl. 188, 8 L. R. A. 846. R. Co., 100 Md. 168, 59 Atl. 650, 196. Foster v. Grand Rapids 108 Am. St. Rep. 399; Tolchester R. Co., 140 Mioh. 689, 104 N. W. Beaoh Imp. Co. v. Steinmeier, 72 380. 96 Master and Servant. § 33 involving any of its property, rights or servants, nor grow- ing out of any transaction between the plaintiff and the company, although the plaintiff was rightfully at the sta- tion having a ticket and awaiting the arrival of a train, and the alleged breach of the peaee, arrest, assault and battery occurred on the premises of the company." ^^' The same distinction was made by the New York court in a recent case where a special policeman was appointed under the statute, at the request of the defend- ant, and paid by it, where a customer whose satchel had been taken by another while in the defendant's store, called the attention of the defendant's floor walker to the fact, who in turn called such of&cer who placed the person having possession of the satchel under arrest. It was said the act of the policeman was not in the protection of the master's property nor in the discharge of the master's duty to maintain peace and order on the premises, but solely on the personal complaint of the owner of the satch- el. That neither the defendant nor its agent instigated the arrest, and that defendant owed such owner no duty in the matter."* In a prior case the same eoiu"t laid down the doctrine that a railroad company emplojdng a servant who hap- pens to be a pubhe officer, acquires no immimity by such employment."^ The New Jersey court seems to have been in accord with the New York and other courts, as above stated, to the effect that where an arrest is made by such an officer, not at the instigation of the employer, the latter is not re- sponsible for his acts.^"" 197. McKain v. Baltimore & Co., 186 N. Y. 397, 79 N. E. 3, 9 O. R. Co., 65 W. Va. 233, 64 S. E. L. R. A. (N. S.) 267. 18, 23 L. R. A. (N. S.) 289, 131 199. Sharp v. Erie R. Co., 184 Am. St. Rep. 964. N. Y. 100, 76 N. E. 923. 198. Tyson v. J. H. Bauland 200. Tucker v. Erie R. Co., 69 N. J. L. 19, 54 Atl. 557. §§ 34, 35 Existence op Eelation. 97 And in Massaehusetts the employer is not liable for the official acts of the officer. ^"^ § 34. Persons working under public officers. If a person is employed by a pubUc official to do work under him, but is paid by the municipality, the relation of master and servant does not exist between the official and the laborer. Thus, the relation of master and servant does not exist between a road commissioner and the men employed under him in repairing a street. ^° ^ So, the relation of master and servant does not exist between the superintendent of a coimty hospital and the inmates thereof.^"' § 35. Receivers. While a receiver of a raUroad may be protected from an action at law in respect to the property in the possession of the court or in his hands as its receiver, or from the consequences of any accident occurring in its manage- ment, yet as to other property, the management of which he voluntarily assumed and over which the court had no control, he is responsible individually for its careful and proper management. This was ,said where an employee was injured while at work upon a connecting line which the receiver of a road had leased by permission of the court. 2"* It was said in Georgia: "Receivers of a railroad, holding possession for a court of chancery and operating the road under the orders of that court, are not subject to a suit in their official capacity for a personal injury to one of their employees, resulting from the negligence of other of their employees in the same service. The Code abol- ishing the common law rule as to feUow-servants, does not 201. Healey v. Lathrop, 178 536, 55 Atl. 417, 63 L. R. A. 223, Mass. 151, 59 N. E. 653, 86 Am. 94 Am. St. Rep. 516. St. Rep. 471; S. C, 171 Mass. 263, 203. Schrubbe v. ConneU, 69 50 N. E. 540. Wis. 476, 34 N. W. 503. 202. Bowden v. Derby, 97 Me. 204. Kain v. Smith, 80 N. Y. 458. 1 M. * S.— 7 98 Mastek and Seevant. § 36 embrace employees of receivers, but only those of railroad companies." ^"^ A railroad company is not liable as such for injuries sustained by an employee while the road is exclusively operated by and in the possession of a receiver. ^"^ The Kansas co-employee statute applies to receivers operating roads. ^"^ § 36. Convicts. Where a criminal in a state prison was injured by the fall of a defective staging in a building, which was being constructed by the defendants, who had engaged plain- tiff's services from the prison authorities, and after his release from the prison he brought an action against such defendants, it was held that the action could be main- tained; that the relation of master and servant existed; but that he could not recover for his inability to labor dur- ing the period of his imprisonment.^"* But the relation of master and servant has been held to not exist between a contractor of prison labor and a con- vict, the convict being in charge of the contractor as keeper. A convict is not therefore the feUow-servant of employees of the contractor, nor convicts, engaged in the same work.^°' It was held, however, that the relation of master and servant exists between an employer and a convict hired from the state, to the extent that the former will be liable to such convict for any injury resulting from failure to exercise reasonable care in providing safe machinery. ^^^ 205. Henderson v. Walker, 65 208. Dalheim v. Lemon, 45 Ga. 481; Thurman v. Cherokee R. Fed. 225. Co., 56 Ga. 376. This rule, how- 209. Buekalew v. Tennessee ever, has been abrogated by statute Coal, Iron& Railroad Co., 112 Ala. making receivers hable. Barry v. 146, 20 So. 606. McGhee, lOOGa. 579, 28S. E. 455. 210. Baltimore Boot & Shoe 206. Memphis & C. R. Co. v. Mfg. Co. v. Jamar, 93 Md. 404, 49 Hoechner, 14 C. C. A. 469, 67 Fed. Atl. 847, 86 Am. St. Rep. 428; 456. Hartwig v. Bay State Shoe & 207. Rouse V. Hornsby, 14 C. C. Leather Co., 43 Hun (N. Y.) 425. A. 377, 67 Fed. 219 Hornsby v. Ed- dy, 5 C. C. A. 560, 56 Fed. 461. § 36 Existence of Relation. 99 A chain gang boss was held not the fellow-servant of a chain gang prisoner, and the employer of such boss Liable for the latter' s negligence in causing injury to such prisoner. ^^"^ Convicts, while in the service of a lessee of the state, do not assume the risks of their employment to the same extent as persons who voluntarily engage in an employ- ment. He cannot recover, however, where he volun- tarily places himself in a place of danger. ^^^ 211. Boswell V. Barnhard, 96 212. Simonds v. Georgia Iron Ga. 521, 23 S. E. 414. & Coal Co., 133 Fed. (C. C. A.) 776. 100 Master and Servant. §37 CHAPTER IV. INDEPENDENT CONTRACTORS. Sec. 37. Scope of chapter and general considerations. 38. Who are independent con- tractors. Mode of payment as de- termining. Right to control work. Right to terminate employ- ment. Effect of furnishing of appK- ances and materials. Architects. Physician employed by de- fendant. Stevedores. 39. Relation ordinarily determined by contract between parties. 40. Termination of relation. 41. General rule as to Uability of contractee. Whether act directed by superior. Work done upon owner's land by another. 42. Exceptions to general rule as to liability. (a) Where work wrongful in itself or if done in ordinary manner woidd re- sult in nuisance. Sec. 43. 44. Where excavation or ob- struction collateral to work. (b) Where work in its nature dangerous however care- fully performed. (c) Where duties imposed by law. (d) Where duties imposed by contract. (e) Wrongs done in pursu- ance of franchise. (f) Actual interference of master. (g) Ratification of acts of contractor. (h) Employment of incom- petent contractor. (i) Where several contract- ors. Liability of contractee to serv- ants of contractor. Furnishing unsafe apph- ances. Furnishing unsafe place to work. Liability of contractee to his own servants. Safe place to work. Safe appUanoes. Exercise of franchise. § 37. Scope of chapter and general considerations. It is not within the scope of this work to consider in detail the law relating to independent contractors in so far as the question arises in actions against a master by a stranger, where the alleged negligence is that of a servant, § 37 Independent Conti^(^6|is. ' 101 since such, class of actions are not treated herein. At the same time, the question of independent contractor some- times arises in actions by servants of the contractee or of the contractor, against the contractee or the contractor, which must necessarily be considered; and to roimd out the chapter, a brief reference will be made to some rules which probably have never been involved except where the action was by a stranger, although part of them might be applied in actions by servants. In so far as the liabilities of the master are concerned, the question of independent contractors divides itseK into the question of (1) liability to strangers for acts of con- tractor or his servants, (2) liability to contractor himself and his servants, and (3) liabdity of employer to his own servants where the negligence is that of a contractor or servants of the contractor. Where a servant sues to re- cover damages for personal injuries, the defense is often set up that the servant is in the employ of an independent contractor who is the one, if any, hable for the injuries. This defense, however, is much more frequent where a third person sues the alleged master for injm-ies resulting from the negligence of a servant, and the defense is that the offending servant was not in the employ of defendant but was employed by an independent contractor rendering services for defendant. Since the habiLity of the master to third persons is not within the scope of this work, the cases as to independent contractors arising in such ac- tions win not be considered in detail herein, but will be cited only so far as to clearly present the rules and ex- ceptions. The question is logically treated by first con- sidering who are independent contractors and then the question of HabUity for their acts and those of their servants, principally important because of the several ex- ceptions to the general rule. For the law in general relat- ing to independent contractors, reference should be made to general works thereon.^ 1. See Moll on Independent Contractors; 16 Am. & Eng. Enoy. of Law, 186; 26 Cyo. 1546. 102 Master and Seevant. § 38 § 38. Who are independent contractors. An independent contractor is one who, generally exer- cising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of the work.^ As stated more completely, one who contracts to do a specified piece of work, furnishing his own assistants and executing the work either entirely in accord with his own ideas or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the order of the latter in respect to the details of the work, is clearly a contractor and not a servant, and a person injured by his negligence in the performance of the work would have no right of action against the party for whose benefit the work is done. * An independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work and not as to the means by which it is accompUshed.* 2. Powell V. Virginia Const, fixed by him, in the construction of Co., 88 Tenn. 692, 13 S. W. 691, 17 a building, the owner reserving no Am. St. Rep. 925; Humpton v. control, and by the terms of the Unterkircher, 97 Iowa, 509, 66 N. contract the former is made alone W. 776; Smith v. Simmons, 103 responsible for injury to laborers, is Pa. St. 32, 49 Am. Rep. 113; Lou- an independent contractor, not an than V. Hewes, 138 Cal. 116, 70 agent. Hughbauks v. Boston In- Pac. 1065; Waters v. Pioneer Fuel vestment Co., 92 Iowa, 267, 60 N. Co., 52 Minn. 474, 65 N. W. 52, W. 640. The owner of a house by 38 Am. St. Rep. 564. parol agreement employed a car- 3. Hale v. Johnson, 80 111. 185. penter to raise and put another 4. Fink v. Missouri Furnace story under the building, the car- Co., 82 Mo. 276, 52 Am. Rep. 376; penter agreeing to raise it, furnish Crenshaw v. UUman, 113 Mo. the material and complete the 633, 20 S. W. 1077; Bibb's Adm'r alteration to the satisfaction of the V. Norfolk & W. R. Co., 87 Va. 711, owner for a fixed sum. It was held 14 S. E. 163; Jensen v. Barbour, 15 that the relation of the parties was Mont. 582, 39 Pac. 906; South- that of contractor and contractee, western Telegraph & Telephone Co. and not that of master and servant, V. Paris, 39 Tex. Civ. App. 424, 87 and that the owner was not Habla S. W. 724. One agreeing to furnish for the acts or negligence of the labor and materials at prices to be carpenter in the performance of th« §38 Independent Conteactoes. 103 Mode of payment as determining. The fact that the compensation is by the day does not work, which caused the fall of the house upon the horse of the plaintiff, unless the carpenter was without proper skill or was unsuitable to do the work, or unless the work con- tracted for was a nuisance. Con- ners v. Hennessey, 112 Mass. 96. One who contracts with a municipal corporation to construct a sewer, independent of any control by the corporation as to the men or means employed, and subject to no re- straint, is an independent contrac- tor, the relation of master and servant not existing between an employee of the contractor and the corporation. Lenderink v. Village of Rockford, 135 Mich. 531, 98 N. W. 4. A construction company agreed in a written contract to undertake the construction of a telephone plant, and system, and its equipment, and to assume all risks connected therewith. At its own cost and expense, to provide all necessary labor and material, and to erect, construct and com- plete an extensive telephone plant, and system, and when completed to deliver and transfer it to the telephone company for which it was to receive $3,250,000 in bonds in the manner provided in the contract. The plant and system were out- lined in plans and specifications already prepared and identified and such other plans and specifications as should thereafter in the judgment of the consulting engineer be neces- sary or proper which were to be made a part of the contract. It was to install 10,000 telephones and procure not less than 7,500 bona fide subscribers contracts for a year; to procure aU necessary real estate and transfer the title to the telephone company and all neces- sary street permits and rights of way; to use its best endeavor to secure and transfer to the telephone company, the property, franchises, rights belonging to the Co-operative Telephone Company and its stock; to employ a chief engineer who should be under its control; to protect the telephone company against infringement of patents. The contracts further provided for a consulting engineer to be appointed by the telephone company, to approve of all materials in the build- ings or plant before used. The construction company also agreed to carry out all directions, explana- tions and instructions which the consulting engineer should give, and to the consulting engineer was com- mitted the duty of making the changes in extent and character of the work, and plans necessary or proper to the plant or materials, and the subcontractors were to be approved by such consulting engi- neer, the telephone company re- serving the right to substitute another contractor or subcontrac- tors for any that the consultmg engineer deemed unreliable or in- competent. The work was to be prosecuted at such time and in such manner as the consulting engineer should direct; and the work, mate- rial and apparatus to be performed and located at such places and in such manner as designated by the consulting engineer. It was held that the construction company was not an independent contractor, and 104 Master and Sebvant, §38 necessarily make the person agreeing to do the work hence the telephone company's negligence being established, it was liable for the death of an employee while engaged in such work. Lar- sen V. Home Telephone Co., 129 N. W. (Mioh.) 894. Persons work- ing in a shale mine were paid thirty cents a ton for shale mined, to be divided between them, excluding the mine boss, such workmen fbdng their own hours of labor and fur- nishing the explosives, which, how- ever, were used by an employee of the operator of the mine, such operator furnishing track and cars, and having the right at any time to discharge such workmen. It was held that they were not independ- ent contractors, but servants, and the master liable for injury caused to one of them by not removing an overhead rock or supporting it in the mine, which fell causing the injury. Lewis V. Detroit Vitrified Brick Co., 129 N. W. (Mich.) 726. Contractor engaged in repair- ing TANK. Dealers in hardware, plumbing, etc., engaged to repair a tank for the owner of a fruit farm, were held independent contractors and not servants, so that the prin- cipal was not liable for the death of one of his employees caused by the explosion of the tank through the negligence of a servant employed by such contractors. The fact that the manager of defendant's farm was a member of the contracting firm instructing their servant to repair the tank was held immate- rial. Hedge v. WiUiams, 131 Cal. 465, 63 Pac. 721, 64 Pac. 106, 82 Am. St. Rep. 366. Person employed to repair cornice. Where a defendant em- ployed a person engaged in the roofing and cornice business, to make some repairs to the cornice of his building, no price or plan being agreed upon, the method and means being left entirely to such person so employed, who agreed simply to remedy the defect, and a person was injured by the fall of a plank from a scaffold erected by the latter's employees in doing the work, it was held that the relation of master and servant did not exist between the defendant and the per- son so engaged to make the repairs, but that the latter was an inde- pendent contractor; the men em- ployed to do the work were his serv- ants and not servants of the de- fendants; and that it was im- material that the work was charged for by the day. Hexamer v. Webb, 101 N. Y. 377, 4 N. B. 755, 54 Am. Rep. 703. Person taking lumber from CARS AND piling IT. One who has contracted with the owner of a fac- tory to take lumber as it is delivered from the cars, pile it, put it in the kiln and dry it, and use so much as he needs in the manufacture of doors at a stipulated price per door, for which purpose the lower floor of the factory is set apart to him, is an independent contractor, and the superior, the owner of the factory, is not liable to a brakeman injured in being struck and thrown from a ear by lumber piled too near the track. Wright v. Big Rapids D. & B. Mfg. Co., 124 Mich. 91, 82 N. W. 829, 50 L. R. A. 495. Person employed by the DAY to DO A PIECE OF WORK. A per- son employed by the day to do a §38 Independent Conteactoes. 105 a servant rather than an independent contractor.^ Ordinarily an independent contractor is paid a lump sum for the whole work, but the mode of payment is not conclusive as to the relationship,^ although it is a circiam- stance to be considered.' One may be paid a lump sum for certain work and yet not be an independent contractor,* while on the other hand one may be an independent contractor rather than a servant although paid in the same manner that an ordi- piece of work and allowed by the contract to adopt Ms own methods in performing it, the employer pay- ing the expenses incurred and look- ing to him for results only, is an independent contractor. City of Groesbeck v. Pinson 21 Tex. Civ. App. 44, 50 S. W. 620. Person making eepaihs. A plumber, employed to repair water pipes in his own way, is an inde- pendent contractor. Bennett v. Truebody, 66 Cal. 509, 6 Pae. 329, 56 Am. Rep. 117. CONTKACTOB UNDER GENERAL SUPERVISION OP PRINCIPAL AS TO ACTS NOT DIRECTED BY LATTER. One contracting to construct a rail- road under the general supervision of the company's engineer located across a tract of timber land, is an independent contractor to the ex- tent that the company is not liable for the acts of a subcontractor and his employee in cutting a road through such timber outside the location of the raUroad and setting fires which through their negligence spread and burnt the owner's tim- ber. K the engineer had directed such work to be done the company would have been liable. Eaton v. European & N. A. R. Co., 59 Me. 620, 8 Am. Rep. 430. Teamster. Where the owner of teams contracted with another to do his hauling, the former em- ploying and paying his own team- sters, the latter is not hable for the negligence of such teamsters. The fact that his name was painted on the wagons, does not affect the question of his liability. Foster v. Wadsworth-Howland Co., 168 lU. 514, 48 N. B. 163. A laborer em- ployed by a city and under the direction of the city's superintend- ent, assigned to the excavation of a section of a trench without di- rection as to his work, is not an in- dependent contractor. City of Ft. Wayne v. Christie, 156 Ind. 172, 59 N. E. 385. 5. Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755, 54 Am. Rep. 703; City of Groesbeck v. Pinson, 21 Tex. Civ. App. 44, 50 S. W. 620; Emmerson v. Fay, 94 Va. 60, 26 S. E. 386; Harrison v. Collins, 86' Pa. St. 153, 27 Am. Rep. 699. 6. Corbin v. American Mills, 27 Conn. 274, 71 Am. Dec. 63. 7. Indiana Iron Co. v. Cray, 19 Ind. App. 565, 48 N. E. 803, and cases cited. 8. Waters v. Pioneer Fuel Co., 52 Minn. 474, 55 N. W. 52, 38 Am. St. Rep. 564. 106 Master and Servant. §38 nary servant would be paid. These rules are further illus- rated by the eases cited below.* 9. One who contracts with a furnace company to take sand from its land and to deliver it at its fur- nace at an agreed price per load, there being no stipulation as to the manner of digging the sand, is an independent contractor, and the company is therefore not liable for his negligence in conducting the work. Fink v. Missouri Furnace Co., 82 Mo. 276, 62 Am. Rep. 376; Bibb's Adm'rv. Norfolk & W. R. Co., 87 Va. 711, 14 S. E. 163. Where paid a fixed sum per MILE. A person employed by a railroad company to clear off and burn the rubbish from its right of way at so much per mile, who hires, pays and controls his own help, is not a servant of the company, but an independent contractor; and the railroad company is not liable for the negligence of his employees. St. Louis, I. M. & S. R. Co. v. Yonley, 53 Ark. 503, 14 S. W. 800. Where conteactob was to be reimbursed for materials and labor and a per cent additional. An agreement between a railroad company and an individual was that the latter should complete the unfinished contract of an inde- pendent contractor, and was to be paid for it what the materials and labor to be procured and furnished by him should cost and ten per cent additional to that for his com- pensation. It was said that the mode of payment is a circum- stance of much weight in solving the question of the character of one as an employee or contractor; but it is not decisive and should not have been made so. If such person was engaged as the mere instru- ment through whom the appellant was to procure materials and labor to be paid for by the company — in other words, if he was a dis- bursing agent and to be paid for his services a compensation measured by his disbursements, he was its agent and it is responsible for its acts as such. New Orleans & N. E. R. Co. V. Ruse, 61 Miss. 581. Where a building was being con- structed for a percentage over tl^e cost, the laborers employed by such contractor are his serva"ts and not those of the owner. Whit- ney & Starrette Co. v. O'Rourke, 172 lU. 177, 50 N. E. 242. Compensation by thousand or LOAD. A person operating a shingle machine to manufacture shingles by the thousand for the owners of a mill, held to be an independent con- tractor. State V. Emerson, 72 Me. 455. It was held, however, by another court, that an employee of a fuel company engaged in de- livering coal for the company at a stipulated price per load, was a servant of the company and not an independent contractor. Waters v. Pioneer Fuel Co., 52 Minn. 474, 55 N. W. 52, 38 Am. St. Rep. 546. Digger op ore at a per cent. OF ore mined. An ore digger who furnishes his own tools and appli- ances, who employs and pays his own assistants, and who is paid by the mine owners a specified per cent for ore mined by him, is not a ser- vant of the mine owners, but an independent contractor, as the means and details of the execution of his work axe subject to his own §38 Independent Conteactoes. 107 Right to control work. The main test, in determining whether one is an inde- pendent contractor or merely a servant, is whether the exclusive control and management, and hence the wrongful employ- ment by him of an infant does not render the mine owner liable to the infant's parents for his death. The fact that, in practice, the ore dig- gers would discharge their hands, on request of the mine owners, for refusal to observe the rules of the mines, and that the mine owners objected to the hiring of a certain class of assistants by the ore diggers, does not show such reservation of control as creates the relation of master and servant between them and as will constitute the assistants thus employed servants of the mine onners. Harris v. McNa- mara, 97 Ala. 181, 12 So. 103. CONTBACTOR CONSTRUCT- ING BUILDING TO BE PAID A FIXED SUM OVER DISBURSEMENTS. But one who acts under contract with the owner of a building which au- thorized him to contract in his own name for material and labor sub- ject to the approval of the owner, to construct a building for the own- er and to give his whole time to its supervision, to report the cost, a certain part thereof to be deducted and held in payment for shares of stock in the corporation construct- ing it, and who is to be paid a cer- tain sum in full for his services in looking after the execution of the contract and superintending the construction of the building, is not an independent contractor, but a servant. Hughbanks v. Boston Investment Co., 92 Iowa, 267, 60 N. W. 640. Payment by the day fob ser- vices; OWNER TO PAY THE MEN THROUGH CONTRACTOR. H. WaS employed by defendant at a cer- tain compensation per day, to procure the necessary workmen and attend to the construction of a mill, defendant to furnish all ma- terials and to pay through H. the men hired by the latter. Defend- ant exercised a control over the undertaking to the extent of direct- ing its progress, course of procedure and general management. It was held that H. was not an independ- ent contractor and that the work- men were employees of defendant. Rankel v. BuckstafE Edwards Co., 138 Wis. 442, 120 N. W. 269, 20 L. R. A. (N. S.) 1180. Contractor to receive all in excess of expenditures within a LIMITED SUM.' One who contracts with the owner of a saw mill to work up slabs into lath and pickets, with the use of machines in the mill, run, kept in order and Ughted by the owner of the mill, who owned the product, paid the wages of the men employed by the contractor, and paid the contractor any surplus remaining, computed at a stipulated price per thousand for the lath and pickets, is not an inde- pendent contractor, but a servant, and whatever duty there was to instruct an inexperienced workman as to the dangers of the employ- ment, was a duty of such owner. Nyback v. Champagne Lumber Co., 48 C. C. A. 632, 109 Fed. 732. 108 Mastbb and Sebvant. "§ 38 employer has the right to control the mode of doing the work. Ordinarily, if the employer retains control, the relation is that of master and servant rather than of eontractee and contractor; but if the employee has the right of control he is generally an independent contractor.^" Where the employer retains the right to direct the time and manner of doing the work or retains control of some part thereof, the contractor is merely the agent of the employer and the latter is ordinarily held responsible for the wrongful acts of the contractor or his servants, where such servants are not fellow-servants of the one injured. The difficult question oftentimes is to determine from the particular facts, whether, by the terms of the contract or agreement existing between the principal and his contract- or, the principal is or is not an independent contractor. The distinction upon which aU the cases turn is this: If the person employed to do the work carries on an inde- pendent employment, and acts in pursuance of a contract with his employer, by which he has agreed to do the work on specified terms in a particidar manner and for a speci- fied price, then the employer is not Uable. The relation of master and servant does not subsist between the parties, but only that of contractor and eontractee. The power of directing and controlling the work is parted with by the employer and given to the contractor. But, on the other hand, if work is done under a general employment, and is to be performed for a reasonable compensation or for a stipulated price, the employer remains Uable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraia- ing from doiag it, if he deems it necessary or expedient. ^^ 10. Lilmelian v. Rollins, 137 11. Brackett v. Lubke, 4 AUen Mass. 123, 60 Am. Rep. 287; Cen- (Mass.) 138, 81 Am. Dec. 694; tral Coal & Iron Co. v. Grider's Conners v. Hennessey, 112 Mass. Adm'r, 115 Ky. 745, 25 Ky. L. 96; Rome & D. R. Co. v. Chasteen, Rep. 165, 74 S. W. 1058, 65 L. R. 88 Ala. 591, 7 So. 94. A. 455; Bldred v. MaoMe, 178 Contract for constrttction op Mass. 1, 69 N. E. 673; City of Ft. railroad or part of it. A oor- Wayne v. Christie, 156 Ind. 172, poration organized for the purpose 59 N. E. 385. of constructing and operating a rail- §38 Indepeistdent Contbactoes. 109 Where an employee retains control over the mode and manner of doing a specific portion of the work only, and an injury results to a third person from the doing of some other portion of the work, the contractor alone is liable. ^^ road, having acquired its right of way by the exercise of the power of eminent domain or otherwise, may contract with another person for the construction of the whole or any part of the road without retaining the right to control the mode or manner of doing the work, and in such case the corporation is not liable to third persons for an injury resulting from the carelessness or wilful act of the contractor. But if the corporation retain control over the mode or manner of doing the work, the relation of independent contractor does not exist, and the employer is liable for an injury to third persons from the carelessness or wilful wrong of the contractor while engaged in the performance of the work. But a right reserved in the contract on the part of the railroad company to direct as to the quantity of work to be done or the condition of the work when com- pleted, is not a right to control the mode or manner of doing the work within the rule above stated. Hughes V. Railway Company, 39 Ohio St. 461 ; City of Cincinnati V. Stone, 5 Ohio St. 38. Yet it was held in another jurisdiction, where a railroad corporation made a contract with certain persons that the latter should build a certain portion of the railroad, and while engaged in such work some rocks were blasted, throwing a piece upon the plaintiff, causing him injury, that the plaintiff might maintain an action against the corporation to recover damages for the injury he sustained. It was said: "The contractors were in the immediate employment of the defendants. It is entirely immaterial whether the contract is written or verbal; the contractors were none the less servants of the defendants though there was a written agreement be- tween the parties, setting forth with precision what each party was to do. The sole object of the cor- poration was to build a railroad; this they might do either by em- ploying laborers by the day or by contracting with different persons to construct different sections of the road; the defendants employed the persons that did the injury." Stone V. Cheshu-e R. Co., 19 N. H. 427, 51 Am. Dee. 192. 12. Hughes V. Railway Co., 39 Ohio St. 461, 6 N. E. 553. An action was brought by a gas Hght company against a borough to re- cover for alleged injuries to its pipes by the defendant while con- structing a system of sewers. "It appeared the work was let by con- tract; and in the process of the work damage was occasioned by the caving in of the sides of a trench. It appeared by the terms of the contract that the city engineer had, in substance, the right to compel the work to be done in a proper manner and to have proper mate- rials used. It was said: "The weight of authority justified the holding that the reservations of con- trol, being but partial and existing 110 Master and Servant. §38 However, an employee in control has been held not necessarily an independent contractor. ^^ Retaining the right to supervise the work to see that it is done correctly or to the satisfaction of the employer does not make a contractor a mere servant.^* For instance, a clause merely "that the work is to be done under the direction of an architect or other person," is to give to such person power to direct as to the results of the work merely, that is, its condition when completed. It does not give him control over the contractor or his workman as to the manner of performing it.^^ Merely taking steps to see that the contractor carries out his agreement, as having the work suprevised by an architect or superintendent, does not have the effect to give the principal control of the work or the time and manner of doing the work." in certain respects only, did not prevent the existence of the relation of contraetee and independent con- tractor; that the general control over the work as to the manner and method of its execution, the over- sight and direction of the perform- ance of the actual manual labor, especially in the particulars in the execution of which the plaintiff claims injury to his property was caused, notwithstanding the pre- scribed hmitations, remained in the contractor; that the servants doing the work were his servants, not those of the defendant, and that these considerations relating to general control constitute the true test by which to determine whether the relation be that of employer and contractor or that of master and servant." 13. Atlantic Transport Co. v. Coneys, 28 C. C. A. 388, 82 Fed. 177. 14. Casement v. Brown, 148 U. S. 615, 37 L. Ed. 582, 13 Sup. Ct. Rep. 672; CaUan v. BuU, 113 Cal. 593, 45 Pac. 1017; Hooe v. Boston & N. S. R. Co., 187 Mass. 67, 72 N. B. 341. 15. KeUey v. Mayor of New York, 1 Kernan (N. Y.) 432. 16. Atlanta & F. R. Co. v. Kimberly, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231. Under a contract for construction of the brick work of a building, providing that the scaffolding should be furnished by the contractors and that the work should be done under the direction of the architect and the owner, the use of the word "direction" does not alter the rela- tion of the contractor so as to ren- der the owner liable for an injury happening to one of the former's employees, where the only direction the architect or owner could give was as to what should be done to accompUsh the ends aimed at by the contract, and where neither of them could dictate the means or methods to be employed. Hump- 38 Independent Conteactoes. Ill So where the employer reserves to himself no control over the maimer in which the work shall be performed, except that it shall conform to a certain standard when completed, he will not be liable for an injm-y sustained dm-ing the progress of the work by a servant employed by the contractor's foreman, i'' So the retention of a general supervision over the place where the work is done, and the right to inspect pieces of work to see if they conform to the contract, does not render the relation between the parties that of master and servant. ^^ And controlhng work to the extent of seeing that it is done according to the terms of the contract does not disturb the relation of independent contractor. ^^ ton V. Unterkircher, 97 Iowa, 509, 66 N. W. 776. And where con- traetors had agreed to erect a build- ing according to fixed plans and specifleations and of certain materi- als, it was held they were independ- ent contractors, notwithstanding a provision that the work should be performed under the inspection and to the satisfaction of the architects as agents of the owner, and hence the owner of the building was not responsible for the negligence of the contractors' employees, where- by a brick fell from the uncom- pleted building and injured a passer by. Smith v. Milwaukee B. & T. Exchange, 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912. 17. Vincennes Water Supply Co. V. White, 124 Ind. 376, 24 N. E. 747; Rome & D. R. Co v. Chasteen, 88 Ala. 591, 7 So. 94. 18. Gayle v. Missouri Car & Foundry Co., 177 Mo. 427, 76 S. W. 987. 19. Mason & Hage Co. v. Highland. 116 S. W. (Ky.) 320. Hence where a railroad company employed for an agreed price a skilful contractor to repair, ac- cording to specifications and \iith the privilege reserved of super- vision by its engineer, a bridge in such a manner that the passing of trains should not be prevented, but they were not to pass except upon signal from the contractor's fore- man, and a passing train broke through the bridge, killing one of the servants of the contractor working thereon, it was held that the railroad company was not liable. Bibb's Adm'r v. Norfolk & W. R. Co., 87 Va. 711, 14 S. E. 163. The defendant railroad company made a contract with an individual by which he was to take entire charge and control of defendant's freight busiuess at St. Louis station, loading and unloading cars, switch- ing them back and forth ia the yard, making up freight trains, and doing all other yard service neces- sary iu the transaction of the de- fendant's freight business. Certain other duties were imposed upon 112 Mastee and Sebvant. §38 And the fact that the general contractor sublets a part of the work embraced in his contract, and stipulates that the work is to be done in a thorough and workmanhke manner to the satisfaction of its chief engineer, will not be such an assumption of the right to control as to the details or method of doing the work as wiU make him re- sponsible for wrongs of such subcontractors or their servants. Such a provision is nothing more than is usual and necessary to enable the employer to see that the work contracted for is carried out, and neither imphes nor authorizes any such control of the details as would make the contractor his servant. ^^ him not material to the considera- tion of the question. To enable him. to properly discharge his duties he was to have control over the grounds, yards, buildings, engines and cars of the defendant at the station. Defendant was to furnish the necessary engines, and keep them in repair and supplied with fuel, etc., and to employ the engi- neers and firemen, who were to be under the control of the contractor and were to be paid by him. For his services he was to be paid monthly at the rate of fifteen cents for each ton of freight received or delivered, and fifty cents for each car hauled from the levee. The contract was to continue five years. The business was to be done under the control of defendant's super- intendent and to his satisfaction, and if not so done, defendant could revoke the contract on twenty-four hours' notice. However, where an employee of an elevator company was injured through the negligence of men operating cars, and an action brought for damages against the railroad company, it was held that such contracor was not an inde- pendent contractor, but stood in the relation of a servant to the de- fendant. The right reserved to the defendant to supervise and control the manner of doing the work de- termined this conclusion. Doubt was expressed as to the power of a common carrier to let out its work and duties so as to relieve itself from responsibility. Speed v. At- lantic & P. R. Co., 71 Mo. 303. The plaintiff was injured while working upon an air shaft intended to be connected with the defendant's mine. At the time of the accident the connection had not been made. The plaintiff was in the employ of a third party who had the contract for the construction of the air shaft. The defendants had nothing to do with the work, except they reserved the right to supervise the work so far as to see that the contract was complied with. It was said the plaintiff's remedy, if any, was against the contractors. He had none against the owners. Welsh v. Parrish, 148 Pa. St. 599, 24 Atl. 86; Welsh V. Coal Co., 5 Atl. (Pa. St.) 48. 20. Powell V. Virginia Const. Co., 88 Tenn. 692, 13 S. W. 691, §38 Independent Conteactoes. 113 But where a municipal corporation contracts for the making of a pubUc improvement under the supervision of its own engiaeer, or other proper officer, and subject to his orders, the contractor is not an independent contractor." Right to terminate employment. The right to terminate the emplojrment at any time, while having a strong tendency to show that the employee is a mere servant, is not conclusive. ^^ Effect of furnishing of appliances and materials. The existence of the relation of independent contractor does not necessarily depend on whether the appUances or materials or both are furnished by him or by his supe- rior.^' At the same time, it is a circunistance to be considered and in connection with other facts has in many cases been held to show a person not an independent contrac- tor. 2" 17 Am. St. Rep. 925; Pack v. New York, 8 N. Y. 222; Erie v. Caul- kins, 85 Pa. St. 247, 27 Am. Rep. 642; Clark's Adm'r v. H. & St. J. R. Co., 36 Mo. 202; Crenshaw v. UU- man, 113 Mo. 633, 20 S. W. 1077. 21. City of Chicago v. Mur- doek, 212 lU. 9, 72 N. E. 46, 103 Am. St. Rep. 221. 22. New Albany Forge & Roll- ing Mill V. Cooper, 131 Ind. 363, 30 N. E. 294. 23. Tiffin V. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408; Smith V. Simmons, 103 Pa. St. 32, 49 Am. Rep. 113. A person con- tracting to cut timber at a fixed price per thousand feet, the prin- cipal having no control over the work, is an independent contractor for the negligence of whose servants the principal is not liable, although such principal furnishes locomo- tives, cars, teams and rails for the prosecution and makes up the pay 1 M. & s.— 8 roll in the requisition of the con- tractor. Young V. Fosbiu-g Lum- ber Co., 147 N. Car. 26, 60 S. E. 654, 16 L. R. A. (N. S.) 255. 24. A contractor doing work by the piece for which he received a fixed price, hiring and paying his own employees, carrying on his operations in one room of his prin- cipal's factory, the latter furnish- ing the machinery, power and material, and exercising control of the manner of doing the work, was held not an independent contrac- tor but an agent, and such principal liable for injuries received by one of the agent's employees through the employer's negligence. Barg v. Bousfield, 65 Minn. 355, 68 N. W. 45. Where a person was hired to bale huUs at a fixed price per bale, out of which he was to pay those he hired to assist him, he to use his employer's machinery, which was operated by the employer, the 114 Master and Seevant. §38 Architects. An architect has been held to be an independent con- tractor where he comes within the rules already stated. ^^ latter actually exercising control over the employees, the relation of independent contractor did not exist. Southern Cotton Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 638. The contrary was held in first case in 38 S. W. (Tex. Civ. App.) 1137. A person employed by a manu- facturer and placed in charge of a branch of the general business, such as the manufacturing into iron, materials furnished by the owner, in a shop and with machinery pro- vided by such owner, the latter having some control over the ma^ terial after delivery to be manu- factured, and some right to dis- charge men employed, the person so employed having control of the work and the men, employing and paying the latter with the power to discharge them and receiving a certain sum per ton for the manu- factured article, is not an inde- pendent contractor but a foreman or boss of the owner, and the rule of independent contractor has no appHcation where an injiured ser- vant brings his action against the owner for damages. Indiana Iron Co. V. Cray, 19 Ind. App. 665, 48 N. B. 803. One employed by defendants to squeeze boxes for them in their factory, with their machines, as and when directed by their foreman and paid by the box, with the right to hire and pay his own assistant, was not an independ- ent contractor and the master was liable for injuries to his assistant caused by the agent's negUgence. Messmer v. Bell & CoggeshaU Co., 133 Ky. 19, 117 S. W. 346. A construction company engaged in building a railroad made a subcon- tract for the construction of the road from a given point as far as the company's chief engineer might determine, the company to furnish a locomotive and train, engineer, fireman and brakeman for the use of the subcontractor in such work. One of the employees in the general employ of the defendant, but who was one of the crew oper- ating the train under the direction and control of the subcontractor, was injured through the alleged negligence of such subcontractor. It was held that while engaged in such work the subcontractors were independent contractors, for whose negligence in the management of the train the construction company was not liable. Powell v. Virginia Const. Co., 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925. Where defendant employed a person to fill its ice house and furnished him with an apparatus by which the ice was hoisted, the defendant was held not liable to an employee for injuries resulting from the inexperience of such employee's fellow-servants in working such apparatus. Piette v. Bavarian Brewing Co., 91 Mich. 605, 52 N. W. 152. 25. Burke v. Ireland, 166 N. Y. 305, 59 N. E. 914. The owner of a lot employed an architect to draw plans and superintend the erection of a building thereon. He drew a plan to which the owner assented. § 38 Independent Contbactoes. 115 Physician employed by defendant. A physician acting for defendant in making a physical examination of the plaintiff in an action for personal injuries, has been held to be an independent contractor, and not a servant or agent so as to charge the defendant with habUity for his acts.^^ Stevedores. A stevedore employed to xmload coal from a vessel, who hired his own men, is an independent contractor. ^' The relation of master and servant does not exist between a stevedore employed by a firm having the con- tract to stow a cargo, and the master and owners of a vessel. The vessel being safe for work with respect to covering of hatchways when taken control of for the purpose of stowing by the firm, if they became uncovered by persons not representing or in the employ of such mas- ter or owner, no habiUty attaches to either for injuries to a stevedore f alhng in a hatchway. ^* " A ship owners who furnished a winehman to help a stevedore to unload a ship under contract, was held li- The owner paid the architect a bricklayers and hod carriers, having commission on the value of the been employed by the master building. The architect had no bricklayer, were his servants, and other interest in the work. The not those of the owner of the build- owner paid for the materials and ing. Deford v. State to use of the biUs for all the workmen upon Keyser, 30 Md. 179. orders from the architect. The 26. Pearl v. West End St. Ry. architect employed a master brick Co., 176 Mass. 177, 57 N. E. 339, layer, and employed the joijrney- 49 L. R. A. 826, 79 Am. St. Rep. men bricklayers and hod carriers. 302; Quinn v. Kansas City M. & While the building was in course B. R. Co., 94 Tenn. 713, 30 S. W. of erection, the cornice and a por- 1036, 28 L. R. A. 552, 45 Am. St. tion of the front wall fell upon a Rep. 767. See also South Florida person passing on the street. At R. Co. v. Price, 32 Fla. 46, 13 So. this time neither the owner, arehi- 638. tect nor master bricklayer were 27. SuUivan v. New Bedford present. It was held that the ar- Gas & Edison Light Co., 190 Mass. chitect and master bricklayer ocou- 288, 76 N. E. 1048. pied the position of independent 28. The Wm. F. Babeock, 31 contractors, as distinguished from Fed. 418. servants; that the journeymen 116 Mastes and Seevant. §§ 39-41 able to an employee of such stevedore for the negUgenee of such Avinchman in hoisting a tub of asphalt so fast as to cause chunks of asphalt to fall out and injure him, although the winchmanis imder the immediate supervision of the stevedore.^' An employee of a stevedore engaged in unloading a vessel and an employee of the owner of a dock and store- house from which the load is to be taken, such owner fur- nishing the engine and apparatus to be used in the loading, are not f eUow-servants, but servants of different masters. '" § 39. Relation ordinarily determined by contract between parties. The relation of the parties is to be determined ordi- narily by the contract between the parties. If the writing was not executed in good faith or it appears that, not- withstanding such contract, supervision or control of the work was assumed by the principal or original contrac- tor, in case of such contracts, then the apphcation of the rule is to be determined by the conduct of the parties." § 40. Termination of relation. The doctrine of respondeat superior ceases after a building has been constructed and accepted by the owner. If inJTuy thereafter is occasioned by imperfect construc- tion, the owner's habihty depends upon his negligence in maintaining it in such condition. The fact that it was constructed under contract is of no importance except as bearing upon the question of negUgence.'^ § 41. General rule as to liability of contracted. It being determined that an employee is an independent contractor, the general rixle is that the contractee is not 29. Tte Lisnaerieve, 87 Fed. Mfg. Co., 86 Minn. 458, 90 N. W. 570. 1116. 30. Sanfordv. Standard Oa Co., 32. Fanjoy v. Seales, 29 Cal. 118 N. Y. 571, 16 Am. St. Rep. 787. 243. 31. Klages v. Gillette-Herzog §41 Independent Conteactoes. 117 liable to the contractor or the latter's servants for injuries in connection with the work, nor is the contractee hable to third persons. '^ 33. The rule of maxim "re- spondeat superior" is limited by this principle; the responsibility of the master, grows out of, is measured by, and begins and ends -with his control of the servant. If one sought to be charged as master, did not contract with the servant for his labor or services, and is not ha- ble to him for compensation, and has no such control over him as will enable him to direct the manner of performing the labor, he is not liable. Callahan v. Burlington & M. R. R. Co., 23 Iowa, 562. The general rule is that where the rela- tion of master and servant or prin- cipal and agent does not exist, but the injury results from the negh- gence in the performance of work by a contractor, the principal is not re- sponsible for the neghgence of the contractor or the latter's servants. Exceptions to the rule are where the employer personally interferes with the work, and the acts performed by him occasions the injury; where the thing contracted to be done is unlawful; where the acts performed create a pubUc nuisance; and where an employer is bound by statute to do a thing efficiently and an injury results from its inefficiency. Berg V. Parsons, 156 N. Y. 109, 50 N. E. 957, 41 L. R. A. 391, 66 Am. St. Rep. 542. The true test in de- termining whether the doctrine of respondeat superior appUes in any case, was stated to be, does the person holding the position of mas- ter have, for the time being, or is it his duty to assume, control over the servant in respect to the perform- ance of his duties. If such right or duty of control exists, the doc- trine appHes. Otherwise not. The right to employ or discharge a servant is an element tending to show a right of control, but is not conclusive. Roe v. Winston, 86 Minn. 77, 90 N. W. 122; Rait v. New England F. & C. Co., 66 Minn. 76, 68 N. W. 729; Klages v. Gillette- Herzog Mfg. Co., 86 Minn. 458, 90 N. W. 1116. Within this rule a principal is not liable for the acts or omissions of a subcontractor. Al- dritt V. Gillette-Herzog Mfg. Co., 85 Minn. 206, 88 N. W. 741. Where one person employs another to fur- nish the materials and do a speci- fied job of work as an independent contractor, he does not thereby ren- der himself hable for injuries caused by the sole neghgence of such con- tractor or his servants. Hackett v. Western Union Tel. Co., 80 Wis. 187, 49 N. W. 822; Hundhausen, V. Bond, 36 Wis. 29; Robbins v. Chicago, 4 WaU. (U. S.) 657, 18 L. Ed. 427; Conners v. Hennessy, 112 Mass. 96; Blake v. Ferris, 5 N. Y. 48; HiUiard v. Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743. See also cases cited in Atlanta & F. R. Co. V. Kimberly, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231. Section 2692 of the Georgia Code declares: "The employer is not responsible for torts committed by his employee, when the latter exer- cises an independent business, and in it is not subject to the immediate direction and control of the em- ployer." This rule is simply de- 118 Mastee and Servant. § 41 Whether act directed by superior. An important consideration in determining whether the principal or a contractor is Kable for negligence in causing injury to an employee, is whether the act is di- rected by the superior. If the contractor is supervised or controlled by the superior, there may be a habihty, but where the contract is for results alone, the contractor being independent and free from direction and restraint in the performance, the superior is not liable.'^ Work done upon owner's land by another. A party is not chargeable with the neghgent acts of another in doing work upon his lands unless he stands in the character of employer to the one guilty of negligence, or unless the work, as authorized by him, would neces- sarily produce the injuries complained of, or they are occasioned by the omission of some duty imposed upon him. There is no distinction in this respect between an owner of real and personal property and the former is held to no stricter hability for the negligent use and manage- ment of his real estate, or of negligent acts upon it by others, than is the latter as to a similar use of his prop- erty.'* claratory of the common law. tractors, regardless of whether the Where a street railway company, work is to be performed in a thor- having authority under its charter oughfare where public rights are to construct a railroad in the public involved, or in a place where pri- street, does the work by an inde- vate rights only are affected. Ful- pendent contractor, and injury is ton County St. Ry. Co. v. Mc- oceasioned a traveler by the negli- ConneU, 87 Ga. 756, 13 S. E. 828. gence of employees of the contrae- 34. Wright v. Big Rapids D. & tor, the contractor will be personally B. Mfg. Co., 124 Mioh. 91, 82 liable, but in the absence of reserva- N. W. 829, 50 L. R. A. 495. tion of control over the work the 35. McCaflerty v. Spuyten railway company wiU not. The DuyvQ & P. M. R. Co., 61 N. Y. circumstance that the work is 178, 19 Am. Rep. 267; Scammon being done in a public thoroughfare v. City of Chicago, 25 IU.424, 79 will not affect the rule. The rule Am. Dec. 334. apphes to all independent con- § 42 Independent Contbactoes. 119 § 42. Exceptions to general rule as to liability. To the rule that the contractee is not liable to the con- tractor or his servants or third persons for personal injuries, on account of the negligence of the contractor or his servants, there are certain weU-recognized exceptions which, however, are of very infrequent apphcation except when the action by a stranger. These will now be stated. (a) Where work wrongful in itself or if done in ordinary manner would result in nuisance. An important and well-settled exception to the general rule is where the work, the subject of the contract between the principal and his contractor, is wrongful in itself, or if done in the ordinary manner would result in a nuisance. This exception rests upon the principle that if one con- tracts with another to commit a nuisance, he is a co-tres- passer by reason of his directing or participating in the work. In other words, the rule is that if the act or neglect which produces the injury is pxirely collateral to the work contracted to be done, and entirely the result of the wrongful acts of the contractor and his workmen, the pro- prietor is not Uable; but if the injury directly results from the work which the contractor engaged and was authorized to do, he is equally liable with the contractor. ^^ Though ordinarily the owner of premises (in this ease a building in process of erection) is not Uable for the acts of an independent contractor who is constructing a building or doing work upon the premises by reason of any relation as master and servant, yet it does not foUow that he may not be responsible for the consequences resulting from the defective work allowed to be done by them. " 36. Atlanta & F. R. Co. v. benefit. It was immediately front- Kimberly, 87 Ga. 161, 13 S. E. 277, ing on a public street in a large city, 27 Am. St. Rep. 231; Cuff v. New- and, according to tte testimony of ark & N. Y. R. Co., 35 N. J. L. the plaintiff, was constructed in a 17, 10 Am. Rep. 205. most dangerous and defective man- 37, A wall of a building was in ner, so much so that it excited the course of erection on an owner's alarm and apprehension of hun- premises, by his sanction, under dreds of people as they passed, and his contract and for his use and caused them to avoid the pavement. 120 Master and Servant. § 42 The rule that a person who has entered into a contract for a specific work to, be done by another, is not liable for the act or conduct of the contractor, has no appKcation in a case where a public duty is imposed upon an ofi&cer or pubUc body, and the officer or body charged with the duty commits its performance to another. For instance, whoever directs the doing of an act which when done will necessarily be the creation of a nuisance will be personally responsible for a special injury resulting therefrom to third persons, whether the act is performed by a servant or a contractor; and a municipal corporation charged by statute with the duty to keep streets in repair cannot es- cape liabihty for a negligent performance of this duty on the ground that the immediate negligence was that of a contractor who had been intrusted with its performance.'^ Where the nuisance created is not necessarily incident to the work, the master is not Uable. Thus a railroad company which has employed an independent contractor to construct its road is not liable for the damages resulting from a nuisance created by such contractor consisting of a pond on plaintiff's land, the result of failure to drain through an embankment, and the accumulation therein of filth from the camp of the contractor's workmen; the nuisance not being one necessarily incident to the construe- in its iimnediate front. It was said: servants makes no difference in "If this be so, it certainly constitu- respect to Ms liability. If a man ted a nuisance for which the owner has anything to be done on his would be liable. And the fact that premises, he must take care to the wall was erected by others un- injure no man in the mode of con- der contract, and to whom he did structing the work." Whether not bear the relation of master, wiU the injuries are to a passenger in not excuse him. In all cases where the street or a servant employed a party is in possession of fixed about his work, seems to make no property, he must take care that it difference. Deford v. State to use is so used and managed that other of Keyser, 30 Md. 179. persons shall not be injured; and 38. King v. New York Cent. & whether it be managed by his own H. R. R. Co., 66 N. Y. 181, 23 Am. servants or by contractors or their Rep. 37. § 42 Independent Conteaotoks. 121 tion of the road, and the raikoad company not having re- tained control over the manner of constructing it.'^ Where work which does not necessarily create a nui- sance, but is in itself harmless and lawfid when carefully conducted, is let by an employer who merely prescribes the end to another, who undertakes to accomphsh that end by means which he is to make use of at his discretion, the latter is in respect to such means, the master, and if a third person is injured by the neghgent use thereof the employer is not answerable. The rule was apphed where a railroad company employed an owner of a portable en- gine to pump water out of the way of an excavation it was constructing and the engine frightened a horse on the highway. It was further held that using such an engine close to a highway did not necessarily create a nuisance. *° The owner of a building cannot dictate that it be con- structed of improper materials or upon an improper plan and escape liabihty for injuries occasioned thereby be- cause he made a contract with a third person to builds it. Nor can such owner, with knowledge of a weakness or defect threatening the strength of the btiilding, set a man at work immediately under it and shift all responsibihty upon the builder. It was said: "It seems quite clear from the evidence that the defendants reserved no control over the erection of the biulding after they let the con- tract, and to this extent the builder was an independent contractor. But this fact does not of itself reUeve the defendants from all habihty. There was ample evidence tending to show that the defendants consulted with the builder and determined on the materials and plan of con- struction before the contract was let, especially as to the single top plate, the builders' testimony being that the defendants said "single top plates we guess will do." The facts were that the defendants set a. man to work under a newly built ice house which was being filled with ice, and while in such situation the buUding col- 39. Atlanta & F. R. Co. v. 40. Wabash, St. L. & P. R. Co., Kimberly, 87 Ga. 161, 13 S. E. 277, v. Farver, 111 Ind. 195, 12 N. E. 27 Am. St. Rep. 231. 296, 60 Am. Rep. 696. 122 Mastbb and Seevant. § 42 lapsed, either from the effects or method of piling it with ice or the insecure manner in which it was con- structed, or from these causes combined. *^ Where excavation or obstruction collateral to work. Where the obstruction or defect created is caused in the street, and is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the mas- ter is not hable. But when the obstruction or defect which occasioned the injmy results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party. Hence it was held that a person could not excuse himself from liability for injuries caused by an opening in the walk, left unguarded and unprotected, upon the ground that it was the duty of the contractor to attend to these things, especially where he had been warned by the super- intendent of the street of its danger.*^ This doctrine was more definitely stated in a subse- quent case in the same court, and the distinction drawn between acts purely collateral to the work which are purely the result of the wrongful act of the contractor, and such as result from the doing of the work the contractor agreed and was authorized to do. However, it is not exactly made clear with respect to obstructions or excavations in streets what are such collateral acts as may reheve the principal.** 41. Meier v. Morgan, 82 Wis. making an excavation in a street 289, 52 N. W. 174, 33 Am. St. Rep. in a city to be used for the pm'pose 39. of laying water pipes. The work 42. Bobbins v. Chicago, 4 Wall, was being prosecuted pursuant to an (U. S.) 657, 18 L. Ed. 427. See engagement with the city by the also Hundhausen v. Bond, 36 Wis. defendants, and the control of the 29; Pfau v. Williamson, 63 lU. 16. work was by an independent con- 43. The plaintiff was injured tractor of the defendants. The by his horse becoming frightened at principal question discussed was the operation of a steam drill which whether the city itself was liable as was being used in connection with upon a decision of that question and for the purpose ot aiding in was predicated the question of the §42 Independent Conteactobs. 123 Where independent contractors, •while putting down a stone curb for a county, left the trench and the pile of dirt unguarded and unlighted during the night, and a person fell into the trench receiving injury, it was held there was no liability on the part of the county, in the absence of proof of interference with the control of the work by the county. Such interference is not shown by the facts that the commissioners directed, as the contract liability of the defendant, the water supply company. The liability on the part of the city may be placed on the ground of its duty to keep the streets in a reasonably safe condition for travel, and this duty wiU not be excused, ordinarily, be- cause of the act or omission to keep it safe is that of an independent contractor. It was said: Im- provements of the kind, such as making excavations and laying pipes for gas and sewers, are made by municipal corporations under cir- cumstances where the corporation is immediately responsible for the defect or want of repair in the street without any other party be- ing answerable over to them for any damages they may have to pay to a traveler who may be injured through such defect or want of repair, as where they appoint their own superintendent and the work is done by their order and direc- tions. Other cases arise where improvements are constructed by contractors in which the munici- pality is not responsible at all, as where the improvement is of such a character that a prudent man would' not find it necessary to in- cumber the street in any respect or for any purpose, as in that ease it would be clear that the defect or want of repair which occasioned the injury was solely the result of neg- lect and carelessness on the part of the contractor, and not of any cul- pable fault of the oflQcers of the municipality. Contractors with such a corporation for such a piir- pose may or may not be responsible to a third party, in a ease like the present, according to the circum- stances. Tested by these consider- ations, it is quite clear that the ease must be viewed just as it would be if the work had been done by the defendants, and not by the subcon- tractors, or as if the work had in all respects been done under the direc- tion of the defendants as the imme- diate contractors with the municipal corporation. Where the obstruc- tion or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful act of the contractor or his work- men, the rule is that the employer is not Hable; but where the obstruc- tion or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the contractor and author- izes him to do those acts is equally liable to the injured party." St. Paul Water Co. v. Ware, 16 Wall. (U. S.) 566, 21 L. Ed. 485. 124 Masteb and Sebvant. § 42 provided, that the dirt should be thrown on the grass, and furnished boards on which the dirt might be tem- porarily deposited to protect the pavement, or that they directed certain things that did not suit them, or if they thought it would be better they would give directions.^* (b) When work in its nature dangerous however carefully performed. Another exception to the general rule is where the work to be done is in its nature intrinsically dangerous to others however carefuUy performed, the master cannot be re- Ueved from responsibiUty because it has been delegated to an independent contractor. But if the act to be done may be safely done in the exercise of due care although in the absence of such care injurious consequences to third persons would be hkely to result, then the contractor alone is hable, provided it was his duty under the contract to exercise such care.*^ It has been said if according to previous knowledge and experience the work to be done is in its nature dangerous to others, however carefully performed, the employer will be liable and not the contractor, because it is said it is incumbent upon him to foresee such danger and take pre- cautions against it; and in this exception is included the principle that when the injury is caused by defective con- struction which was inherent in the original plan of the employer, the latter is Uable. *^ In other words, an employer is not liable for the negli- gence of an independent contractor because the work is intrinsically dangerous, imless the injuries are the natural consequences of doing the very work the employer di- rected to be done.*^ 44. Eby V. Lebanon County, 46. Atlanta & P. R. Co. v. 166 Pa. St. 632, 31 Atl. 332. Kimberly, 87 Ga. 161, 13 S. E. 277, 45. Bngel v. Eureka Club, 137 27 Am. St. Rep. 231. N. Y. 100, 32 N. E. 1052, 33 Am. 47. Missouri VaEey Bridge & St. Rep. 692; City of Chicago v. Iron Co. v. VaUard, 116 S. W. Murdock, 212 111. 9, 72 N. E. 46, (Tex. Civ. App.) 93. The defend- 103 Am. St. Rep. 221; Conners v. ant caused a scaffold to be erected Hennessey, 112 Mass. 96. fifty feet from the ground, to ao- H2 Independent Conteactoes. 125 (c) Where duties imposed by law. The person upon whom a statutory or positive duty is imposed cannot delegate in any manner the performance of that duty, so as to relieve himself from responsibility for the performance of that duty. Both the duty and the responsibility rest where the duty is imposed, and hence the principal is hable for any injury that arises to others from the non-performance of such duty or in commodate workmen engaged in putting a cornice on the defendant's building, and made a contract with a firm to put on the cornice. The scaffold, owing to its defective con- struction, fell while plaintiff's intes- tate, a workman employed by the contractors, was upon it, causing his death. It was said that the scaffold was upwards of fifty feet from the ground, and unless prop- erly constructed would be a most dangerous trap, imperiling the fife of any person who might go upon it; that in placing it where they did, upon their own premises, for the use of the workmen, they not only licensed, but invited them to go upon it, and impliedly held out to them that it was a safe structiu'e, or at least that proper care had been used in its erection; and these facts, it was held, imposed a duty upon the defendants towards any person who should be invited to go upon the structure, to use proper care in its construction. Coughtry V. Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387. See also Bright V. Barnett & Record Co., 88 Wis. 299, 60 N. W. 418, 26 L. R. A. 524. Where a workman of an independ- ent contractor in the laying of gas pipes, was injured by the escape of gas from a defective joint, such gas being turned on by the gas company for the express purpose of testing the joints, the gas company was held liable upon the grounds first, that such effect was the result of the concurring negUgenoe ot both com- panies, and each were hable. Second, that the construction com- pany was organized as a mere servant or agent of the gas com- pany, the officers being the same, and the injured servant at times was in the employment of each. Third, that the work was necessa- rily dangerous and the gas company authorized it and hence was to be regarded as the author of the injury. Fourth, the gas company was act- ing under its charter and a permit from the city, and hence could not avoid liability to the workmen by letting a contract to a construction company. Chicago E. F. G. Co. v. Myers, 168 lU. 139, 48 N. E. 66. The fall of a bridge being due to an unsafe plan, the principal being charged with notice thereof, its habihty for injury to an employee of the contractor could not be ex- cused on the ground of the inde- pendent contract. Board of Com- missioners Cloud County v. Vic- kers, 62 Kan. 25, 61 Pac. 391> 126 Master and Servant. § 42 consequence of its having been negligently performed, either by himself or by a contractor employed by him.*' Thus, it is a duty imposed by law upon the owner of premises when excavations are being made, which are dangerous to the pubUc, unless protected, to so guard and protect them that they shall be maintained in a reasonably safe condition in respect to those who lawfully may be exposed to danger therefrom; and it has been held that if an independent contractor engaged in constructing a private building with a sewer negligently fails to properly guard his excavation with lights and barriers, the prin- cipal will be liable to a party injured through such neg- lect. « So a railroad company which under proper authority, has been permitted to carry a pubhc highway over its tracks, is Uable for an injury occasioned a traveler on a dark night, resulting from the failure of an independent contractor to properly guard or hght the embankment. Such hability does not rest upon the neghgence of the contractor, but upon a breach of its duty to the pubhc to keep the highway in a safe condition for travel while the work is in progress.^" 48. Atlanta & F. R. Co. v. manner in which the work was done Kimberly, 87 Ga. 161, 13 S. E. by letting the work to independent 277, 27 Am. St. Rep. 231 ; H. & G. contractors; that they could not N. R. Co. V. Meador, 50 Tex. 77; lawfully lay pipes in the streets LouisviUe & N. R. Co. v. Smith's without consent of the city; that Adm'r, 134 Ky. 47, 119 S. W. 241. such consent merely relieved them 49. McCarrier v. Hollister, 15 from the unlawftiL character of the S. Dak. 366, 89 N. W. 862, 91 work; they stand in a contract Am. St. Rep. 695. Where a water telation to the pubKo, to do the company obtained a franchise to work in the manner required by the dig trenches and lay pipes in the ordinance, and cannot relieve them- streets of a city and afterwards selves from the duty imposed by contracted with others to dig and that contract by contracting with fill the trenches at a specified price another to do the work. Colgrove per hundred feet, and by reason of v. Smith, 102 Cal. 220, 36 Pac. 411, not properly guarding the work a 27 L. R. A. 590. traveler was injured, it was held, 50. Deming v. Terminal Rail- in an action brought against the way Co., 169 N. Y. 1, 61 N. E. 983, contractors, that they were liable; 88 Am. St. Rep. 521 (overruling in that they could not relieve them- part Blake v. Ferris, 5 N. Y. 48). selves from responsibility for the § 42 Independent Conteactoes. 127 This rale is also "well illustrated by the holdings that the duty of the master to furnish a safe place to work and safe appliances cannot be delegated to an independent contractor." (d) Where duties imposed by contract. Such duties, arising from contract, which an employer owes to third persons, cannot be destroyed by the inter- vention of an independent contractor. ^^ In other words, where a person contracts to do a cer- tain thing he cannot evade Uability by employing another to do that which he has agreed to perform.^' This is well illustrated by referring to the liabUity of the master to servants of the contractor injured by defective appliances, where the master has by contract agreed to furnish the appliances.^* (e) Wrongs done in pursuance of franchise. In some jurisdictions, and especially in Illinois, it is held that a corporation is liable for the negligence or wrongful act of an independent contractor in the perform- ance of acts which could not have been done except for the existence of the charter of the company.*^ But this principle does not extend to the use of the ordinary ways and means for the construction of the road but only to the use of such extraordinary powers as the company itself could not exercise without having first complied with the conditions of the legislative grant of authority. ^^ 61. See infra, tHs chapter, § 44. ever, that the construction of a 52. Louisville & N. R. Co. v. railroad by a conta:aotor is not Smith's Adm'r, 134 Ky. 47, 119 the exercise of charter powers or S. W. 241. privileges by the contractor). This 53. Atlanta & F. R. Co. v. ease reviews at considerable length Kimberly, 87 Ga. 161, 13 S. E. 277, the prior Ilhnois decisions, in- 27 Am. St. Rep. 231 ; St. Paul Water eluding those based on the theory of Co. V. Ware, 16 Wall. (U. S.) 566, the work being inherently danger- 21 L. Ed. 485. ous. See also City of ChicEigo v. 54. See infra, this chapter, § 43. Murdock, 212 111. 9, 72 N. E. 46, 65. Boyd v. Chicago & N. W. R. 103 Am. St. Rep. 221. Co., 217 111. 332, 75 N. E. 496, 108 56. Atlanta & F. R. Co. v. Am. St. Rep. 253 (holding, how- Kimberly, 87 Ga. 161, 13 S. E. 277, 128 Masteb and Servant. §42 (f) Actual interference of master. It is not the fact of actual interference and control, but the right to interfere, which makes the difference between the independent contractor and a servant or agent. But when the relation is that of independent con- tractor, it is correct to say that the liabihty of the contrac- tee in such cases arises from the fact of actual interference and control." But where the employer or his representative inter- feres and orders a certain act to be done by a servant of the contractor, and a third person is injured from the negUgent manner in which the work is done, and not merely from the doing of the act, the eontractee is not liable. '* 27 Am. St. Rep. 231; Rogers v. Florence R. Co., 31 S. C. 378, 9 S. E. 1059; Sanford v. Pawtucket St. Ry. Co., 19 R. I. 637, 35 Atl. 67, 33 L. R. A. 564; Cunmngham v. International R. Co., 51 Tex. 503, 32 Am. Rep. 632. 57. Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 28 Atl. 32. The plaintiff was injured by a bar- rel of sugar being rolled against him as he was passing in front of de- fendant's store. It appeared that the person who thus roUed the bar- rel was a truck man in the employ of a company engaged in carting goods, and who had a contract with the defendant to furnish its trucks, teams and men and do all its cartage at a certain price per year. The defendant did not hire the men and had no power to discharge them. It was held that the defend- ant was not hable. To the argu- ment on the part of the plaintiff that the testimony showed that the defendant gave direction to the men how to handle the freight, and consequently the men were under the immediate charge and control of the defendant, and for any acts of neghgence of the men the defend- ant became hable, it was said the testimony did not support plain- tiff's assumption. The defendant simply pointed out the goods that were to be carted to their destina- tion. It did not control the man- ner in which they should be trans- ferred to the trucks nor the route that should be taken in taking them to their destination. Riedel V. Moran-Fitzsimmon Co., 103 Mich. 262, 61 N. W. 609. 58. Where an engineer of a railroad company, under contract for constructing its road bed, which reserved to the company the right to direct how it should be done, and further providing that the ground should be cleared of all per- ishable materials which were to be removed or burned as the engineer might direct, ordered an employee of a subcontractor to set fire and burn some rubbish on the line of the right of way, which was done in such a negligent manner as to § 42 Independent Conthactoks. 129 A lot owner is liable in damages to adjacent owners from the placing of materials in the street by his independ- ent contractor, where the principal has ordered them to be placed in the street and has obtained such a permit from the city, but Hmited so as not to obstruct the gutters, and the injury results from the contractor thus obstruct- ing the gutter. ^^ (g) Ratification of acts of contractor. Where the employer has ratified or adopted the un- authorized wrong of the independent contractor, he may be hable.^" (h) Employment of incompetent contractor. As to third persons, the contractee is liable where the injury results from the incompetency of the contractor which incompetency was known or should have been known to the contractee." (i) Where several contractors. In at least one case, liabihty has been cast on the em- ployer because, at least in part, there were several con- tractors. Thus, an owner about to build, contracted with one to dig the eeUar, who employed his own assistants, horses and carts; with another to do the masonry, the owner furnishing the lime, stone, etc. ; with a third to put up the superstructure. The excavation not being suffi- ciently guarded, the plaintiff fell in and was injured. It was held the owner, and not the contractor, was hable. Where the contract is spht up into different contracts, permit fire to escape causing dam- 59. Bohxer v. Dienhart Har- age, it was held a statement of ness Co., 45 N. E. (Ind. App.) 668. such fact was not sufficient to 60. Atlanta & F. R. Co. v. establish liability of the company as Kimberly, 87 Ga. 161, 13 S. E. 277, it did not appear that the loss nee- 27 Am. St. Rep. 231. essarily occurred from the burning 61. Norwalk Gaslight Co. v. as ordered, but from the neghgent Norwalk, 63 Conn. 495, 28 Atl. manner in which it was done by an 32; Simonton v. Perry, 62 S. W. employee of the subcontractor. (Tex. Civ. App.) 1090. Callahan v. Burhngton & M. R. R. Co., 23 Iowa, 562. 1 M. & S.— 9 130 Masteb and Servant. § 43 and the owner undertakes to supply the materials, and no provision is made for the supervision of the work or maintaining guards, the duty is on the owner to protect the public. ^^ § 43. Liability of contractee to servants of contractor. The general rule is that the contractee is not hable to servants of the contractor for personal injuries received in the course of employment as such.^' And the same rme applies to a contractor's liability to servants of a subcontractor.^^ Furnishing unsafe appliances. Ordinarily the contractee is under no obligation to furnish any appliances to the contractor, except as expressly provided for in the contract. But he is liable to the servants of a contractor for injuries received by them through the negligence of such contractee in not providing proper appliances, where as between himself and the contractor he is to furnish the appliances for the contractor's use.** If the apparatus used belongs to the contractee, the latter is responsible for defects therein resulting in in- juries to servants of the contractor the same as if the servants were the servants of the contractee.^* But where the owner of an instrument or piece of ma- chinery, not in its natiu-e dangerous, allows another per- son competent to manage it, to take and use it, and while in the possession and use of the other it becomes defective and injures an employee of the contractor, the owner is not hable; and the fact that the right to use it was given 62. Homan v. Stanley, 66 Pa. 64. Mohr v. McKenzie, 60 111. St. 464, 5 Am. Rep. 389. App. 575. 63. Central R.&B. Co. V.Grant, 65. McCaU v. Pacific Mail S. S. 46 Ga. 417; Branstrator v. Keokuk Co., 123 Cal. 42, 55 Pac. 706. & W. R. Co., 108 Iowa, 377, 79 66. Sullivan v. New Bedford N. W. 130; ReiUy v. Chicago & Gas & Edison Light Co., 190 N. W. R. Co., 122 Iowa, 525, 98 Mass. 288, 76 N. E. 1048. N. W. 464; Avery v. Southern R. Co., 137 N. C. 130, 49 S. E. 91. § 43 Independent Contractors. 131 under a contract by which it was to be used in performing work for the owner upon his premises, does not change his liability." It was held that it is not a defense on the part of one who contracts with another to manufacture articles for him, the former to furnish the appliances, including a machine, dangerous to operate, without instruction as to the manner in which it should be operated, where an employee of such contractor was injured in operating the machine, by reason as alleged, of ignorance of the danger and a want of proper (instructions, that such servant was not in his employ, but in the employ of an independent contractor. It is a case in which, under the circumstances, a resulting injury might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance.®* It was held, however, elsewhere, that the owner of a building being repaired by the servants of independent contractors, who were using an ash lift belonging to such owner for the purpose of removing dirt from the basement, is not liable for injuries received by one of such servants, resulting from a defect in the hft.®' Where the principal agrees to furnish the material or appliances for the contractor to use, in the performance of the work, it was held the latter is not liable to his serv- ants for injuries sustained by reason of the material or appliances being defective, unless the contractor has the right of selecting or rejecting materials so furnished. The presumption is, in the absence of a reservation in the contract, that he has such right.'" 67. The facts were that defend- Y. Cent. & H. R. R. Co., 66 N. Y. ant made a contract with another 181, 23 Am. Rep. 37. to unload iron from vessels upon the 68. Jacobs v. Fuller & Hutsin- former's dock at a fixed price per piUer Co., 67 Ohio 70, 65 N. E. bar, such owner to furnish a derrick 617, 65 L. R. A. 833. to be used for such purpose. The 69. Bush v. Grant, 22 Ky. L. derrick, while in use, became out of Rep. 1766, 61 S. W. 363. repair, and from its defects, injury 70. McCaU v. Pacific Mail S. was occasioned one of the con- S. R. Co., 123 Cal. 42, 55 Pac. 706. tractor's employees. King v. N. 132 Master and Seevant. §43 Furnishing unsafe place to work. Generally, the contractee is not Hable to servants of the contractor on the ground of unsafe place to work, espe- cially where the defect is open or known equally to the parties and does not amount to a public nuisance." However, the contractee may be liable in certain cases. '^ 71. Douglas V. Marsh, 141 Mich. 209, 104 N. W. 624. Where a railroad company employed an independent contractor to con- struct a culvert under its tracks, it was held it would not be liable for injuries to a workman of the con- tractor sustained in doing the work, it not being of such a hazard- ous nature that injury might rea- sonably be expected to result therefrom. Louisville & N. R. Co. V. Smith's Adm'r, 134 Ky. 47, 119 S. W. 241. 72. Douglas v. Marsh, supra; Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164, 13 N. W. 499, 43 Am. Rep. 456; Lake Superior Iron Co. V. Ericksoi}, 39 Mich. 492, 33 Am. Rep. 423; Stevens v. United Gas & Electric Co., 73 N. H. 159, 60 Atl. 848, 70 L. R. A. 119. Where the contractor agreed with the owner of a mine to do certain work therein, the owners engaging to furnish and put up such props or supports for the roof of the mine as would render the miners secure whenever notified by the contractor that the same were necessary, it was held that, although such notice from the contractor may not have been received by the owners, if they had actual knowledge that such supports were necessary, they be- came hable in damages to an em- ployee of the contractor, who, without negUgence on his pajt, had been injured while at work in the mine through the want of such support for the roof. It was said that such liability would exist, not by virtue of any privity of con- tract between the contractor and the owner, but independently of the contract, the work being done through the firm's own procure- ment, for their own use and benefit and upon their own premises, over which they retained a superintend- eney for the miners' protection, and they owed a duty towards the contractor's servant to keep the premises in a reasonably safe condition. KeUey v. Howell, 41 Ohio St. 438. Where a contractor with a city for the construction of a sewer sublet the brick work to another, and a servant in the employ of the latter was injured by the sides of the trench caving in, in an action brought against the con- tractor it wass aid: "The contract- or excavated the trench and pre- pared it for the brick work. It was the brick work only that was sublet. It was the duty of the contractor to so prepare the trench as to make it reasonably safe for the subcon- tractor and his employees." John- ston V. Ott, 155 Pa. St. 17, 25 Atl. 751. The owner of a vessel or the vessel is not liable to the servants of an independent contractor for injuries received by them in the manner in which the contractor's §44 Independent Oontbactoes. 133 § 44. Liability of contractee to his own servants. Generally, the liability of a contractee to his own ser- vants is not affected by the fact that negligence of an independent contractor is the cause of the accident, where such negligence is in connection with a non-dele- gable duty of the contractee. Safe place to work. The duty of a master to furnish his employees a safe place to work cannot be delegated to an independent contractor, so as to relieve the master from liability. '^ duties are performed. The duty, however, remains as to providing a safe place for work, and for such a neglect of duty it m.ay be liable to such a servant. The Saranac, 132 Fed. 936. A firm of contractors made a contract with the defend- ant to put a cornice on its mills and any scaffolding required for that purpose to be furnished free of cost to him. A workman in the employ of the contractor, while engaged in the work, was MUed by the fall of the scaffold erected by the defend- ant for that purpose. It was held that, the scaffold being erected by defendant upon his own premises for the express purpose of accom- modating workmen, a duty was imposed upon it toward them to use proper diligence in constructing and maintaining the structure, and that this duty existed independently of the contract. Coughtry v. Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387. Where a mining corporation contracting for the removal of ore reserved to itself such arrangements as were neces- sajy for the protection of workmen, it was said that it was liable for such injuries as might happen to the employees of the contractor without the fault of the employee. It was said: "Legal privity may some- times exist between one contracting party and the servants of another, as where the servants are exposed to it from being obliged to work upon the former's premises under an arrangement which binds him to keep the premises in a safe condi- tion." Lake Superior Iron Co. v. Erickson, 39 Mich. 492, 33 Am. Rep. 423. 73. Trainer v. Philadelphia & R. R. Co., 137 Pa. St. 148, 20 Atl. 632; Chicago & A. R. Co. v. Eaton, 194 lU. 441, 62 N. E. 784, 88 Am. St. Rep. 161; Gulf, C. & S. F. R. Co. V. Delaney, 22 Tex. Civ. App. 427, 55 S. W. 538. Al- though an injury to an employee was directly caused by the serv- ants of an employer other than that of the injured servant in under- mining a brace placed to prevent a building from faUing, the master could not escape responsibility on the ground of independent con- tractor, when he was negligent in the matter of erecting the brace, or in notifying the servants who were excavating, not to disturb the bank where the brace was placed. Bernheimer Bros. v. Bager, 108 134 Master and Servant. §44 Thus, the duty on the part of a raikoad company of keeping its road, track and yards in a reasonably safe con- dition, being a personal duty which it cannot delegate, it cannot avoid UabiUty by letting out such duties to inde- pendent contractors. While for many purposes this rela- tion of independent contractor will be recognized, it cannot be sustained to shield the master from those posi- tive personal obhgations cast upon him by his relation to his servants.''* The fact that the defective condition of the track was occasioned by an independent contractor will not relieve the master from liability for injuries to a brakeman.'^ Md. 551, 70 Atl. 91, 129 Am. St. Rep. 458. Where an electric rail- way company allowed construction contractors to operate a car thereon, its liability to one of its own motor- men injured through the neglect of the contractors in operating the signals, could not be evaded upon the ground that the contract was an independent one, nor on the ground that it was not negligent in entrusting the operation of signals to the contractors. Orthp v. Phila^ delphia & W. C. Traction Co., 198 Pa. St. 586, 48 Atl. 497. Where a mining company let a contract for the driving of a tunnel, in its mine, it was stiU its duty to keep advised as the work progressed as to unexploded blasts and watch the conditions following explosions and so be in a position to inform a ser- vant subsequently employed of the location of unexploded charges. McMillan v. North Star Min. Co., 32 Wash. 579, 73 Pac. 685, 98 Am. St. Rep. 908. 74. Thus, where the foreman of a train crew was injured by falling over a door left at the side of the track, presumedly by an inde- pendent contractor, who had the contract for transferring grain. A judgment for plaintiff, however, was reversed on the ground of lack of proof of notice on the part of the company. Burnes v. Kansas City, Ft. S. & M. R. Co., 129 Mo. 41, 31 S. W. 347. 75. Southern R. Co. v. New- ton's Adm'r, 108 Va. 114, 60 S. E. 625. It was said the duty a railroad company owes to his trainmen can- not be delegated so as to relieve it from liability to maintain its track in a reasonably safe condition, to an independent contractor engaged to double track its road, and hence where the negligence of the employ- ees of such a contractor in firing a blast and obstructing the road, Ttdthout proper warning to em- ployees on an approaching train, caused injury to one of them, the master was held liable. Walton, Witten & Graham v. Miller's Adm'x, 109 Va. 210, 63 S. E. 458; Vickers v. Kanawha & W. V. R. Co., 64 W. Va. 474, 63 S. E. 367, 20 L. R. A. (N. S.) 793, 131 Am. St. Rep. 929. The contract for ballasting a railroad track, provided that "the contractor wiU carry on and prosecute the work in such §44 Independent Conteactoes. 135 Safe appliances. The master owes to the servant the duty of providing reasonably safe appliances with which to do the work, and the delegation of this duty to an independent con- tractor will not relieve the master from responsibility for an injury to the servant resulting from its neglect ;^^ but the courts in at least one state have refused to extend this rule to the erection of scaffolds. ''^ manner" as the engineer of the rail- road company shall direct. A train- man on the railroad company's road was injured while at his post of duty by the fall of a derrick erected and used by the contractor. It was held the railroad company was liable, and it was stated that independent of this question the company would be hable on the ground of not furnishing a safe place to work. Gulf, C. & S. F. R. Co. V. Delaney, 22 Tex. Civ. App. 427, 55 S. W. 538. 76. Trainor v. Philadelphia & R. R. Co., 137 Pa. St. 148, 20 Atl. 632; Moran v. Corliss Steam En- gine Co., 21 R. I. 386, 43 Atl. 874, 45 L. R. A. 267; Herdler v. Buck's Store & Range Co., 136 Mo. 3, 37 S. W. 115; Gulf, C. & S. F. R. Co. V. Shearer, 1 Tex. Civ. App. 343, 21 S. W. 133. The mere fact that the work is being prosecuted by an independent con- tractor in connection with or about the structures of the principal, wiU not relieve the principal from injuries caused to one of Ms serv- ants by the condition of a defect- ive structure, which it is his duty to keep in repair. Thus, where one was employed by a manufactiuing company to unload cars, employing his own assistants, it was held he was not an independent contractor as to an employee of the company injured by a defective structure which it was the duty of the com- pany to keep in repair. Foster v. National Steel Co., 216 Pa. St. 279, 65 Atl. 618. 77. A contractor contracted to paint the inside of the dome of a court house, and, having no ex- perience in building scaffolds or knowledge of that business, he made a contract with an experienced scaffold builder to erect the neces- sary scaffolding, which was to be first class. Through the negligence of such builders the scaffolding was defectively constructed, and in consequence an employee of such painter, while at work upon the scaffold, was injured by its giving way. It was held that such scaf- fold builder was an independent contractor, for whose acts the painter was not liable, and that it was not negligence for him to rely upon the judgment of such scaf- fold builder as to its sufficiency as a scaffold; and it was held the con- tractor was liable, although there was no privity of contract between him and the plaintiff. They con- tracted to build the structure for the workmen of the painter, and any defect which would cause it to give way would naturally result in injury to such workmen; and he 136 Master and Servant. §44 However, vsrliile the master may be liable to Ms inde- pendent contractor or servants for breach of his contract to furnish appliances, he is not liable to his own servant who is injured by the failure of the independent contractor to make use of safe apphances.^* Exercise of franchise. The delegation of franchise rule, already referred to,^' has been apphed by holding that, though the work of re- laying street car rails under a permit from the city granted to the street car company, is being done for it by a contractor, it is nevertheless hable to its employee for neghgence in doing such work, as for instance, leaving piles of paving stones close to the track by which a con- ductor is injured.*" owed to them a duty to use proper diligence independent of Ms con- tract. Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311; Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017. 78. Miller v. Moran Bros. Co., 39 Wash. 631, 81 Pac. 1089, 1 L. R. A. (N. S.) 283, 109 Am. St. Rep. 917. The doctrine was applied where one dehvering lumber to a subcontractor of the work upon a bridge, was injiired by a span of the bridge falling because it was too hght, while he was delivering lum- ber , upon it. It was said: "In the absence of an express stipula- tion, there was an implied obliga- tion or duty resting upon the de- fendants that they would use due care in the construction of the bridge, so that subcontractors un- der them and their servants em- ployed in other parts of the work should not be exposed to risk of injury while engaged in the due course of their employment, by reason of any neglect or want of reasonable care on their part in building that portion of the struc- ture which was to be made and erected by them. The privity is formed in the relationship growing out of the contract. A person in entering into a contract takes upon himself the usual and ordinary risks of the business in which he is thereby employed, including the neghgence of others in the same service. But the law does not reheve him from all responsibUity with those with whom he eon- tracts. He is bound to use due care in the selection of those whom he employs to work in company with others, and to be reasonably cau- tious and diligent in obtaining proper materials, in the erection of adequate structures, and in the procurement of suitable tools, ma- chinery or other instrumentalities by which the work is to be carried on." Curley v. Harris, 11 Allen (Mass.) 112. 79. See supra, §42e, this Chapter. 80. North Chicago St. R. Co. V. Dudgeon, 184 lU. 477, 56 N. E. 796. §45 Proximate and Concukring Causes. 137 CHAPTER V. PROXIMATE AND CONCURRING CAUSES. Sec. Seo. 45. General considerations. 46. Definition. 47. Injuries which should have been foreseen. 48. Intervening efficient cause. 49. Two or more independent causes. 50. Classification of proximate causes. 51. '.'Neghgence" as proximate cause. 52. Particular neghgence as prox- imate cause. 54. Contributory neghgence. Neghgence of feUow serv- ants. 53. Concurring causes. Distinction between concur- ring and intervening causes. Reason for rule. Accident and master's negh- gence concurring. In application of principle, master's duty first to be considered. Where neghgence of servant not probable consequence of master's act. LiabUity of master and serv- ant as several and not joint. Ihustrations of concurrent neg- hgence. Where negligence of master concurs with accident. Concurring neghgence of master and stranger. Concurring negligence of master with act of God. § 45. General considerations. The law of proximate cause is mucli more comprehen- sive than its relation to the question of master and servant, and hence a complete consideration thereof is not within the scope of a work on master and servant, and only a few general matters will be considered in this chapter. For extended discussion and treatment of the general question, reference should be to works and articles on "Neghgence" and "Torts."i The determination of the proximate cause of an injury is the most imcertain and unsatisfactory question involved 1. See Cooley on Torts (3d ed.), pp. 99-138; Shearman & Redfleld on Neghgence (5th ed.), pp. 26-44; 21 Am. & Eng. Enc. 483-497; 29 Cyc. 526. of Law, pp 138 Mastee and Seevant. § 46 in the law of negligence. Not but what the rules by which the question is to be determined are sufficiently definite and certain, but the facts vary so materially in different cases that the application of such rules is in many cases of but little aid in solving the question. It is well settled that the question ordinarily is one for determination by the jury, and as often the conclusion reached is merely the result of guess work or caprice. Where the facts are not controverted, it should be a question of law for the court, and most well considered cases so hold. ^ It is declared by the Wisconsin court that it is for the court to say, as matter of law, what constitutes proximate cause, and for the jury to find whether the defendant is legally chargeable with having set it in motion in the particular case.' § 46. Definition. Many definitions of proximate cause have been for- mulated by text writers and the courts. Thus it has been said that initial cause, efficient cause and proximate cause all mean the same thing in the law of negligence, i.e., the cause acting first and immediately producing the injury, or setting other causes in motion, aU constituting a natural and continuous chain of events, each having a close casual connection with its predecessor. * Perhaps the most common definition is the act or omission which immediately causes or fails to prevent the injury, and without which the injiuy would not have been inflicted. The expression is often used that the question of proximate cause depends upon whether the injuries woiild have resulted except for defendant's 2. Bunting v. Hogsett, 139 Pa. Read v. Nichols, 118 N. Y. 224; St. 363, 21 Atl. 31, 33, 34, 12 L. 23 N. E. 468, 7 L. R. A. 130. R. A. 268, 23 Am. St. Rep. 192; 3. Deisenrieter v. Kraus-Mer- Louisville & N. R. Co. v. Johnson, kel Malting Co., 97 Wis. 279, 72 27 C. C. A. 367, 81 Fed. 679; N. W. 735. Pike V. Grand Trunk R. Co., 39 4. Winchel v. Goodyear, 126 Fed. 255; Hathaway v. East Wis. 271, 105 N. W. 824, opinion Tenn. V. &. G. R. Co., 29 Fed. 489; of Judge Winslow. § 46 Proximate and Concueeing Causes. 139 negligence. If not, then tlie defendant's negligence was the real producing cause of the injury.^ Such expression, without more, is certainly inaccurate and misleading. It confounds conditions with cause. The master may be negligent in emplojdng a minor in violation of a statute, yet such negligence would not be the proximate cause of such minor being injm-ed by con- tact with uncovered gears.* Yet it is true that had not the minor been thus em- ployed, the injury to hiTn would not have happened. So the master may be negUgent in not guarding cogs, where required by statute, yet such neghgence would not be the proximate cause of an injury to an employee whose hand became caught in such unguarded cogs, by the slipping of the employee's hand from the crank handle of the machine he was operating, throwing it against the unguarded cogs.' Yet it is also true that had it not been for the cogs being unguarded, the injury would not have happened. Where an employee shpped off a tie into a low place in the track, while attempting to make a couphng, and fell, receiving injuries from the moving car, the shpping of the foot was the first immediate and originating cause of the injury. The want of ballast in the track was not the proxi- mate cause.* Yet had the track been in proper condition, it is more than probable the employee woidd not have been injured. A chambermaid in a hotel slipped and sprained her ankle while stepping from an elevator upon a step provided. She had pm-sued the same course three times a day for ten months. The charge of negligence was the want of suffi- cient light. It was held a verdict should have been di- rected for the defendant on the ground that it did not 5. Winchel v. Goodyear, 126 Nut Works, 111 Mich. 129, 69 N. Wis. 271, 105 N. W. 824; Seigel, W. 254. Cooper & Co. v. Treka, 218 III. 7. Crawford & McCrimmon Co. 559,75 N. E. 1053, 2 L. R. A. (N. v. Gose, 172 Ind. 81, 87 N. E. 711. S.) 647, 109 Am. St. Rep. 302. 8. Chicago & E. R. Co. v. 6. Borck V. MieMgan Bolt & Dinius, 170 Ind. 222, 84 N. E. 9. 140 Master and Servant. § 47 appear that the alleged carelessness (insufficient light) was the proximate cause of the injury.* Where a switchman, in attempting to couple cars whUe in motion, stumbled from his feet coming in contact with a piece of coke in the track, his arm being caught and crushed between the deadwoods, his stumbling was held to be the proximate cause of his injury, and hence the defective condition of the deadwoods was immaterial." It was held by the lUinois com-t where the facts were that two servants were riding in their employer's elevator, and one of them threw the other down so as to cause his foot to project over the floor of the elevator, and it was crushed as the elevator passed a newly constructed en- trance, that the master was Kable for the injury if it would not have happened had he not been neghgent in the construction of the entrance." It could also be said the injury could not have happened had the boy not been thrown down by his companion. Certainly the position of danger was due solely to the act of himself and companion, and as certain that the master reasonably could not be held to have anticipated such a result as probable. The court placed its decision upon the groimd of concurring neghgenee. The proximate cause need not be the sole cause but it must be an efficient cause of the injury. The words "direct cause" are not equiva- lent to "proximate cause." ^^ It is the opposite of remote cause, but not necessarily the last or the nearest cause. ^' § 47. Injuries which should have been foreseen. The question, however, is involved whether in order to find neghgence, it must appear that the injury was not 9. Benson v. Peters, 82 Neb. 2 L. R. A. (N. S.) 647, 109 Am 189, 117 N. W. 347. St. Eep. 302. 10. Cincinnati, N. 0. & T. P. 12. Ward v. Chicago, M. & St. R. Co. V. Mealer, 1 C. C. A. 633, & P. R. Co., 102 Wis. 215, 78 N. 50 Fed. 725. W. 442. 11. Siegel, Cooper & Co. v. 13. Gonzales v. City of Galves- Troka, 218 lU. 559, 75 N. E. 1053, ton, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17. § 47 Proximate and Ooncueeing Causes. 141 only the natural and probable consequence of the negli- gence or wrongful act, but that it ought to have bee of ore- seen in the hght of the attending circumstances. It "will be observed that in a great majority of the cases it is held that it is essential to establish negligence that injury should have been foreseen as the natural and probable conseqaeace.^* There are cases, however, in which it has been deter- mined that where there is evidence of negUgence, the per- son guilty of it is hable for its consequences whether he could have foreseen them or not." General language is used in other cases which might imply that the doctrine of the last above cases was approved, but it wiU be foimd upon examination that they merely decide that it is not essential that the party guilty of neghgence should anticipate the particular injury, but that it is enough if by the exercise of ordinary care he might have foreseen that some injury roight result from his neghgence.^* Thus it is stated: "Neghgence is not the proximate cause of the accident unless under all the circumstances the accident might have been reasonably foreseen by a man of ordinary inteUigence and prudence. It is not enough to prove that the accident is the natural conse- quence of the neghgence. It is not, however, necessary that injmy in the precise form in which it in fact happened should have been foreseen. It is enough that it now 14. Milwaukee etc. R. Co. v. 15. Smitli v. London & S. W. KeUogg, 94 U. S. 469, 24 L. Ed. R. Co., L. R. 6 C. P. 14, L. R. 5 256; Hoag v. Lake Shore, etc. C P. 98; Christiansen v. Chicago, R. Co., 85 Pa. St. 293, 27 Am. Rep. St. P., M. & O. R. Co., 67 Minn. 94, 653; Phillips v. Diekerson, 85 lU. 69 N. W. 640; MiUer v. St. Louis, 11, 28 Am. Rep. 607; Seheffer v. I. M. & S. R. Co., 90 Mo. 389, 2 S. Raihoad Co., 105 U. S. 249, 26 W. 439. L.Ed. 1070; McDonald V. SneUing, 16. Baltimore C. P. R. Co. v. 14 Allen (Mass.) 290; Henry v Kemp, 61 Md. 74; S. C, 61 Md. Southern Pao. R. Co., 50 Cal. 176; 619, 48 Am. Rep. 134; Terre Bryant v. Beebe & Runyan Furni- Haute & I. R. Co. v. Buck, 96 ture Co., 78 Neb. 155, 110 N. W. Ind. 346, 49 Am. Rep. 168. 690. 142 Masteb and Seevani. § 47 appears to have been a natural and probable conse- quence."^'' It is the element of probable consequence that deter- mines.^^ The Minnesota court, however, does not seem to be in full accord with this doctrine. Thus it is said: "A person guilty of negligence should be held responsible for all the consequences which a prudent and experienced per- son fully acquainted with all the circumstances which in fact existed, whether they coidd have been ascertained by reasonable diligence or not, woxold at the time of the negligent act have thought reasonably possible to fol- low, if they had occurred to his mind." This doctrine was applied where two hand cars, one following the other, came together, injuring au employee on the forward car, the handle on the rear car being broken, though it did not fully appear how or in what manner the defective handle contributed to the accident.^' A master's liability to respond in damages for his acts rests upon failure of duty, and failtu-e of duty is the absence of the exercise of ordinary care in view of the existing conditions and surrounding circumstances. Hence it is that the negligence of the master must affirmatively appear as a proximate cause of the injury in every case. Ordinary care does not require that a master should guard against that which is improbable or against consequences that a man of ordinary intelligence and prudence would not reasonably expect to occur, and negligence cannot be attributed to him in faihng to do so. The real question 17. Huber v. La Crosse City 1101, 27 L. R. A. 365, 46 Am. St. R. Co., 92 Wis. 636, 66 N. W. 708, Rep. 849; Davis v. Chicago, M. & 31 L. R. A. 683, 53 Am. St. Rep. St. P. R. Co., 93 Wis. 470, 67 N. 940. See also Klatt v. N. C. Foster W. 16, 1132, 33 L. R. A. 654, 57 Lumber Co., 92 Wis. 622, 66 N. W. Am. St. Rep. 935; McFarlane v. 791; McGowan v. Chicago & N. W. Town of SuUivan, 99 Wis. 361, 74 R. Co., 91 Wis. 147, 64 N. W. 891; N. W. 559, 75 N. W. 71. Kucera v. Merrill Lumber Co., 91 19. Wallin v. Eastern R. Co., Wis. 637, 65 N. W. 374. 83 Minn. 149, 86 N. W. 76, 54 L. 18. Block V. Milwaukee St. R. A. 481. R. Co., 89 Wis. 371, 61 N. W. § 48 Peoximate and Concubbing Causes. 143 therefore is one of negligence or tlie want of ordinary- care and not strictly proximate cause. ^^ § 48. Intervening efficient cause. The damages for which a party is, and upon principle ought to be Uable, are those which are the natural and necessary consequences of his wrongful act. But where some other agency intervenes and extends the injurious effects of the wrongful act beyond the range of its natural or necessary consequences, and beyond what could ordi- narily have been anticipated, the party originally at fault is not responsible for such additional injurious effects." As stated by a learned court, if any new cause has in- tervened between the fact accomplished and the alleged cause, of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote. ^^ As stated by Bishop in his work on Non-Contract Law, sec. 41, a remote cause is "one which has so far expended itself that its influence in producing the injury is too minute for the law's notice; or a cause which some independent force merely took advantage of to accom- plish something, not the natural or probable effect there- of." The great difficulty is in determining whether an intervening force has such effect, i. e., where the original cause ends, so to speak, and the ne^r force or cause commences. It need not be a human agency. Animate or inanimate, accidental or intentional, causes may cause the interruption." 20. Atkinson V. Goodrieli Trans, v. Kerr, 70 Pa. St. 86, 10 Am. Rep. Co., 60 Wis. 141, 18 N. W. 764, 664. 50 Am. Rep. 352; Ward v. Railway 22. Louisiana Mut. Ins. Co. v. Co., 29 Wis. 144; Hoag v. Lake Tweed, 7 Wall. (U. S.), 44 19 L. Shore & M. S. R. Co., 85 Pa. St. Ed. 65. 293, 27 Am. Rep. 653; Hoadley V. 23. Wharton on Negligence, sec- Northern Trans. Co., 115 Mass. tions 114, 115; Pennsylvania Co. v. 304, 15 Am. Rep. 106. Whitlock, 99 Ind. 16, 50 Am. Rep. 21. Pennsylvania Co. v. Whit- 71. The defendant, an individual, lock, 99 Ind. 16, 50 Am. Rep. 71; caused to be piled a large number Louisville & N. R. Co. v. Kelsey, of smoke stacks, boilers and other 89 Ala. 287, 7 So. 648; Fairbanks materials along side of and very 144 Master aistd Servant. §48 Thus it has been held that wind may be an intervening cause, where the original cause was a fire communicated from sparks from a smoke stack to a building, and from that to other buildings which were destroyed. ^^ Although a party may be gaUty of an act of negligence which naturally would produce an injury to another, yet if before such injury actually results a third person does some act which is the immediate cause of the injury, the latter alone will be responsible therefor, even though the injury would not have occxured, but for such prior negU- gent act. ^^ Thus, where a plaintiff shipped a horse in a car, leaving the door of the car open and naiUng strips of plank across the opening to prevent the horse from getting out, and the horse kicked the planks loose, escaped uninjured, wandered from the car, and finally strayed back upon the near the track of a railroad com- pany. A train of ears running on said track caught one of the stacks, pushed it along the track to a stair- way leading up to a signal tower where the plaintiff was employed, careening the tower and inducing the plaintiff to jump therefrom, from fear of injury, whereby he was in fact injured. In a suit against the defendant who caused the material to be thus dangerously placed near the track, it was urged that, if it was negligence to pile the material there, it was negli- gence for the railroad company to operate its trains with knowledge of the location of the material and the consequent danger, and such negligence on the part of the latter being an independent, ef&cient and wrongful cause, intervening be- tween the original act and the injury ultimately suffered, must be considered the proximate cause of the injury. It was said by Justice Mitchell, rendering the decision of the court, that the railroad com- pany was negligent in running its trains without causing the danger- ous obstructions to be removed, but still the negligence of the defendant in placing them there was the proximate cause of the injury, although it would not have occurred but for the succeeding negligence of the raihoad company. It was simply a case of concurrent or suc- cessive negUgence of two persons combined together, resulting im- an injury to a third person, for which he may recover damages from the one guilty of the first wrong, notwithstanding the suc- ceeding negligence of the other united in producing the injiury. Martin v. North Star Iron Works, 31 Minn. 407, 18 N. W. 109. 24. Read v. Nichols, 118 N. Y. 224, 23 N. E. 468, 7 L. R. A. 130. 25. WUmington v. Baltimore, etc. R. Co., 17 W. Va. 190, 10 Am. & Eng. R. Cases, 749. § 48 Peoximate and Concueking Causes. 145 track where he was killed by a train of the defendant, it was held that the neghgence of the raihoad company was an independent intervening cause superseding the act or neghgence of the owner in the manner of protecting the opening in the car. ^^ Another apt illustration is where gunpowder was sold to a child, the latter giving it to his parents, they subse- quently permitting the child to take some of it, which exploded, causing him injury. The act of the parents was held to have been such an intervening cause as to break the casual connection between the original act of selling the powder to the child and the subsequent injury. ^^ If a break occurs in machinery and a workman at- tempts to repair it, and is injured, the causes which brought about the break are only the remote causes of the injury and judicially are not its causes at aU. ^^ It was said a mining company shotdd construct plat- forms in its mines capable of withstanding the strain to which the ordinary operations of the mine would sub- ject it; and if disturbed by such ordinary operations as blasts, by reason of such defects in construction, such operations cannot be held to be an intervening cause. ^* Where an incompetent servant, the master being charged with knowledge of his incompetency, so negli- gently performed an act as to create imminent danger to other employees, and another employee, reahzing the danger, attempted to avert it, and in so doing was him- seH seriously injured, it was held the proximate cause of the injury was the neghgence of the incompetent serv- ant. =" 26. Louisville & N. R. Co. v. 29. Smizel v. Odanah Iron Co., Kelsey, 89 Ala. 287, 7 So. 648. 116 Mich. 149, 74 N. W. 488. 27. Carter v. Towne, 98 Mass. 30. Maryland Steel Co. v. Mar- 567, 96 Am. Dec. 682. ney, 88 Md. 482, 42 Atl. 60, 42 28. Schoultz V. Eckardt Mfg. L. E. A. 842, 71 Am. St. Rep. 441. Co., 112 La. 568, 36 So. 693, 104 Am. St. Rep. 452. 1 M. & S.— 10 146 Master and Sekvant, §§ 49, 50 § 49. Two or more independent causes. Where two or more independent causes join to produce an injury and the origin of each is a responsible cause, each author is Uable. Thus where different independent contractors were engaged in tearing down a building, which collapsed, injuring an employee of one other than the defendant, the rule stated was apphed." It must be noted that stress is laid upon the expression "the origin of each is a responsible cause." The rule pro- ceeds upon the doctrine of joint tort feasors. Where, how- ever, a fire started by defendant's negligence spread more than a mile to the northeast, where it met a fire coming from the northwest, and after the union the fire swept on from the northwest to and into plaintiff's prop- erty, and either fire, if the other had not existed, would have reached and destroyed plaintiff's property, it was held that such independent fire from the northwest became a superseding cause; that the negligent fire, if it reached the property at aU, was a remote and not a proxi- mate cause of the loss.'^ The distinction seems to be that the origin of the fire coming from the northwest was unknown, and hence was not a responsible cause, and that the property would have been destroyed by that fire even if the negligent fire com- plained of had not met and joined with it in producing the injury. § 50. Classification of proximate cause. In considering the question of proximate cause it may be looked at from at least three different view points. In the first place, the question may arise whether neghgence of any one was the proximate cause of the injury. In the second place, the question may arise, admitting that the negligence of some one was the proximate cause of the injury, as to whether the proximate cause was the negh- gence of the master or of a third person, or of the injured 31. Olson V. Phoenix Mfg. Co., P. & S. S. M. R. Co., 98 Wis. 624, 103 Wis. 337, 79 N. W. 409. 74 N. W. 661, 40 L. R. A. 457, 67 32. Cook V. Minneapolis, St. Am. St. Rep. 830. §§ 49, 50 Proximate and Concukeing Causes. 147 servant or of a fellow servant. Thirdly the question may arise as to whether the proximate cause was the particular negligence alleged in the complaint, and upon which a recovery is sought. For instance, if a recovery is sought on the ground of an unsafe place to work and the evidence shows the proximate cause was the incompetency of a feUow servant and that the master was negligent in re- taining in his service such incompetent servant, there could be no recovery, at least without an amendment of the pleadings; and if one ground of neghgenee is alleged and the proximate cause of the injury is shown to be other neghgenee, the question of fellow servants and common employment may arise so as to preclude a recovery. § 51. "Negligence" as proximate cause. Except where otherwise provided by statute, as in Eng- land, a master is not liable for injuries resulting from pure accidents. In other words, in order to hold him liable, his negligence must first be shown and then it must appear that said neghgenee was the proximate cause of the injury. ^^ Thus, the fact that a train is running at a neghgent rate of speed will not authorize a recovery for the death of the fireman in the absence of evidence that the death would not have occurred had proper speed only been exercised.'^ 33. Craven v. Mayers, 165 ant, and not leave it to mere sur- Mass. 271, 42 N. E. 1131; Jacob- mise, conjecture and speculation son V. Smith, 123 Iowa, 263, 98 when according to co mm on expe- N. W. 773; Johnston v. Yough- rience the cause may be as reason- iogheny River Coal Co., 183 Pa. ably ascribed to a condition for St. 623, 39 Atl. 10. While the which the defendant is not respon- injured employee is not bound to sible as to one for which he is, then exclude every other theory except the plaintiff is not entitled to such as is directly attributable to recover. Shuhan v. Goodrich, 92 the defendant's fault, he must N. E. (Mass.) 1005. show some connection between it 34. Cox v. Chicago & N. W. R. and a wrongful act of the defend- Co., 102 Iowa, 771, 72 N. W. 301. 148 Master and Seevant. § 52 So where the negligence charged was the use of a defect- ive hook attached to a hoisting apparatus, it appearing there was but one ground upon which the defendant could be charged with negUgence, and that was the widening or spreading of the hook, which was the sole and proximate cause of the injury, the plaintiff was bound to show affirmatively not merely that the particular hook came out of the bucket handle, but that such a thing could not have happened or would not be Ukely to happen with other hooks not spread.'^ It follows that if the negligence or wrongful act is whoUy that of a third person, the master is not hable.^^ So no recovery can be had where there is no showing from which it can be determined which of several possible causes produced the injury, where some of the causes do not involve neghgence of the master. ^^ § 52. Particular negligence as proximate cause. Where the injury is alleged to have resulted from the breach of a particular duty, no recovery can be had unless the proximate cause of the accident was the particular neg- ligence complained of.^* '35. Carney v. Minnesota Dock elevator having been used by an- Co., 191 N. T. 301, 84 N. E. 62. other employee, during the boy's 36. Breeze v. MacKinnon Mfg. absence, operating to produce the Co., 140 Mich. 372, 103 N. W. 908; condition of the floor. The corn- Bennett V. Long Island R. Co., 21 plaint as to the defect was that the App. Div. 25, 47 N. Y. Supp. 258. latch fastening the door was de- 37. Kenneson v. West End fective in that it would not always St. R. Co., 168 Mass. 1, 46 N. B. catch, and at times would rebound 114; Searles v. Manhattan R. Co., and thus leave an open space. It lOlN. Y. 661, 5N. E.66. was held there was no evidence 38. Webster Mfg. Co. v. Good- from which a jury might be per- rich, 104 lU. App. 76. It was held mitted to conclude that after the that the temporary absence of the manager (the employee who used elevator boy was not the proximate the elevator during the boy's ab- cause of the accident, where an sence) closed the door it rebounded employee was injured in stepping and opened eighteen inches as the into the elevator shaft, the door of result of the defective latch. Wen- the entrance not being closed to the dell v. Leo, 195 N. Y. 76, 87 N. B. extent of eighteen inches, the 790. §52 Peoximate and Concueeing Causes. 149 For instance, if the charge of neghgence is failure to furnish a safe place to work, no recovery can be had unless plaintiff shows not only that the place to work was unsafe but that such unsafety was itseK the efficient — proximate — cause of the injury.^' The same rule apphes where the charge is the furnishing of unsafe appUances and machinery,^" or the failure to instruct and warn,*^ or the failure to promulgate rules, ^^ or the employment of an incompetent feUow-servant. *^ So failure of the employer to comply with a statute re- quiring it to do, or refrain from doing, certain acts, does 39. Western & A. R. Co. v. Bsslinger, 95 Ga. 734, 22 S. E.580; Kellogg V. Stephens Lumber Co., 125 Micli. 222, 84 N. W. 136; Johnson v. Armour, 18 Fed. 490, 6 MoCrary 629; Spring VaUey Coal Co. V. Patting, 30 C. C. A. 168, 86 Fed. 433. 40. Williams v. Central R. of Iowa, 43 Iowa, 396; Louisville, N. A. & C. R. Co. V. Southwick, 16 Ind. App. 486, 44 N. E. 263; Bajus V. Syracuse, B. & N. Y. R. Co., 103 N. Y. 312, 8 N. E. 529, 57 Am. Rep. 723; Olson v. Doherty Lumber Co., 102 Wis. 264, 78 N. W. 572; Edmonson v. Kentucky Cent. R. Co., 105 Ky. 479, 49S. W. 200, 448; Gay's Adm'r v. Southern R. Co., 101 Va. 466, 44 S. E. 707. The defective condition of an engine in emitting steam so that the engineer could not observe the signal of a switchman whose foot was caught in a frog, it was held, was not the projdmate cause of the latter's injury, where the engine was so close to him, when the signal was given, that it could not have been stopped in time to avoid the injury, if the signal had been seen. Hunt V. Kane, 40 C. C. A. 372, 100 Fed. 256. 41. Boelter v. Ross Lumber Co., 103 Wis., 324 79 N. W. 243; Clark V. Missouri, K. & T. R. Co., 179 Mo. 66, 77 S. W. 882; Fronk v. J. H. Evans City Steam Laundry Co., 70 Neb. 75, 96 N. W. 1053. 42. Rutledge v. Missouri Pac. R. Co., 110 Mo. 312, 19 S. W. 38; Wright V. New York Cent. R. Co., 25 N. Y. 562; Kennelty v. Balti- more & O. R. Co., 166 Pa. 60, 30 Atl. 1014. 43. Wright v. New York Cent. R. Co., 25 N. Y. 562; First Nat. Bank v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39; Welsh V. Pennsylvania R. Co., 192 Pa. St. 69, 43 Atl. 402. An em- ployee seeking to recover for in- juries sustained in consequence of the incompetency of a feUow- servant retained by the employer with knowledge of the facts, must not only prove prior incompetency of which the employer could have had knowledge, as well as his re- tention by his employer, but also that the accident resulting in the injury complained of was occa- sioned by such incompetency. Coo- ney v. Commonwealth Ave. St. R. Co., 196 Mass. 11, 81 N. E. 905. 150 Master and Sbevant. §52 not render him liable to an employee where the violation of the statute is not the proximate cause of the accident/* Contributory negligence. If the contributory negligence of the injured person is the proximate cause of the injxuy, no recovery can be had.*^ In other words, the servant's own negUgence must have contributed to the injury in such a way that if he had not been negUgent no injury would have resulted from the negligence of the master. Thus, where the foreman of a section crew, having time to jump from his car and avoid injury upon the approach of a train, neglected to do so, but remained and was killed while attempting to take his ear from the track, it was held To same effect, Kliefoth v. North- western Iron Co., 98 Wis. 495, 74 N. W. 356; Norfolk & W. R. Co. V. PMlips' Adm'x, 100 Va. 362, 41 S. E. 726. See also infra, § 344. 44. The mere fact that a rail- road company had failed to comply with a statute requiring it to main- tain telegraph stations not more than ten miles apart did not render it Hable to an employee for injuries sustained, where the acci- dent occurred within less than ten miles of a telegraph station. Driv- er's Adm'r v. Southern R. Co., 103 Va. 650, 49 S. E. 1000. While the positive requirements of a statutory duty supersedes the rule of the exercise of reasonable care, and the master is liable in damages where a violation of the statute is the proximate cause of an injury, yet the employee must show affirm- atively that such violation was the proximate cause. Monson v. La Eranoe Copper Co., 39 Mont. 60, 101 Pac. 243, 133 Am. St. Rep. 649. 45. See chapter on contributory negligence. The proximate cause of the injury to an employee engaged in turning street car switches at the intersection of several lines, who was injured by being struck by a car moving at a rate of speed in excess of that prescribed by ordi- nance, he having stepped upon such track to avoid injury from prancing horses drawing a car upon a paral- lel track, was held to have been the prancing of the horses and not the speed of the car. Thompson v. Citizens St. R. Co., 152 Ind. 461, 53 N. E. 462. A defective coup- ling caused a train to break in sec- tions. The conductor in attempt- ing to reassemble the train, was injured by the train while he was in the act of ascertaining the cause of the train parting. It was held that his injuries were caused either by the failure of the brakeman to find out where plaintiff was before he gave the engineer the signal to start his engine, the engineer's failure to ring the beU before he § 52 Proximate and Concuebing Causes. 151 the proximate cause of his death was his own want of care. ** So defects in a drilhng machine at which a boy was employed were held not the proximate cause of an injtiry to his hand, but that such injury was caused by his use of a wire hook, invented by himself, to aid in the work, the use thereof not being known to his employers. " And where the foreman of a switching crew went be- tween the cars when he knew the engine was moving, and would continue to do so, imless signalled by him to stop, the failure of the engineer to ring the bell was not the proximate cause of an accident arising from the engine striking the cars, since its ringing would not have admon- ished the foreman of anything more than he knew, i. e., that the cars were moving. ^^ Negligence of fellow-servants. The master may or may not be liable for an injury to an employee where the proximate cause of the inj\uy is the negUgence of a co-employee, according to the fellow- servant rule prevailing in the particular jurisdiction. Neghgenee, however, in all cases must appear as the proximate cause. The doctrine of concurring neghgenee of the master and a fellow-servant, hereafter considered in this chapter, is not always appUeable, the intervening neghgenee of a feUow-servant taking the case without the rule. Thus it was held, that the proximate cause of an injury to a servant caused by a lump of coal falling upon him from a tender of a locomotive alleged to have been overloaded while the engine was at rest, was not the overloading of the tender but the act of a fellow- servant in standing or moving upon such loaded coal at the time.^' started, or the plaintiff's failure 47. Stefanowski v. Chain Belt to give the engineer a stop signal. Co., 129 Wis. 484, 109 N. W. 632, Murphy v. Grand Trunk R. Co., 73 7 L. R. A. (N. S.) 955. N. H. 18, 58 Atl. 835. 48. Chicago I. & L. R. Co. v. 46. Nelling v. Chicago St. P. Cobler, 172 Ind. 481, 87 N. E. 981. & K. C. R. Co., 98 Iowa, 554, 49. Weisel v. Eastern R. Co., 63 N. W. 568, 67 N. W. 404. 79 Minn. 245, 82 N. W. 576. 152 Masteb and Sebvant. § 52 And where an elevator hole was guarded by a chain provided by the owner, sufficient to protect the opening if left in proper position, and another omitted to put the chain in position during the absence of the elevator, the act of such person was held the proximate cause of injury to one resulting from the absence of such guard, and not the act of the owner in providing a chain instead of a raihng.^" So the failure sooner to remove a hand car from a track to avoid coUision with an approaching train, it was held was not the proximate cause of the plaintiff's injury, where it appeared the car was safely removed, and the injiiry was occasioned by a co-employee stumbhng and loosing his grip upon the car, throwing the weight on the plaintiff." It would seem that the Texas court, where the circum- stances were the same, has held that the proximate cause of the injury was the negUgence of the railroad company in not giving proper warning of the approach of the train. ^2 It has been held that the failure to ring the engine bell or blow the whistle in a cut rounding a curve, where section men on a hand car saw the train in time to get out of the way, was not the proximate cause of injiuy to one of them, where injured in trying to get the car off the track. ^' The proximate cause of injury to a servant who received his injuries while attempting to repair the belting, by the starting of the machine, due to the failure of the operator to properly fasten the lever which controlled it, was held to be the neghgence of such feUow-servant and not the failure of the master to instruct and warn the plaintiff. ^^ Other illustrations are given in the note below." 50. Malloy v. New York Real 53. Texas & P. R. Co. v. Eason, Estate Ass'n, 156 N. Y. 205, 50 34 C. C. A. 530, 92 Fed. 553. N. E. 853, 41 L. R. A. 487. 54. Ward v. Connor, 182 Mass. 51. Andrew V. Chicago G.W.R. 170, 64 N. E. 968. Co., 129 Iowa, 162, 105 N. W. 404. 55. An employee, working at 52. International & G. N. R. the bottom of a mine shaft, was Co. V. Newburn, 58 S. W. (Tex. kiUed by a descending ore tub. Civ. App.) 542. The tub was hoisted by a horse led §53 Peoximate and Concueking Causes. 153 § 53" Concurring causes. When the injury is the result of two concurring causes, by a boy. To control its descent it w£is the boy's duty to unhook the end of the rope from the single tree and hook it to the hame and then lead the horse towards the mouth of the shaft; that on the occasion in question, the horse escaped from the boy after the rope had been unhooked and the employee at the top of the shaft started the tub down the shaft without looking to see that the end of the rope was attached to the hame and was una- able to prevent its falling. It was held the proximate cause of the accident was not the incompetency of the boy, if he was in fact incom- petent to manage the horse, nor the insufficiency of the hoisting appaja- tus, but the negligence of the co- employee at the top of the shaft. Adams v. Snow, 106 Wis. 152, 81 N. W. 983. An employee taking sheets of steel from a stamping machine, a gauge coming loose and a sheet of steel being caught under it, which the employee attempted to loosen with his hand, calling out to the feeder to puU it back, the latter misimderstanding him, trip- ping the machine instead, causing the die to descend, cutting off the hand of the employee, the mis- understanding of the feeder, who was a feUow-servant, was held to have been the proximate cause of the injury. Richards v. Michigan Pressed Steel Co., 155 Mich. 668 119 N. W. 1077. Where em- ployees were wheeling dirt in bar- rels from a filter bed up a "'run" made of planks, and one was pushed off and injured by their run- ning into each other, the collision being caused by the first man stopping to push into place a board placed by the employees, it was held that the faUure of the master, even if it was his duty to properly secure the board, was not the proximate cause of the injury. McGough V. Bates, 21 R. I. 213, 42 Atl. 873. The proximate cause of injury where a brakeman, while riding on a switch engine, was crushed by the water tank of the engine, which became unfastened as the result of a collision, caused by the neghgence of another brakeman in manipulating a switch, is the negligence of such latter brakeman, and not a defect in the fastening of the water tank, if such there was. VizeUch v. Southern Pac. R. Co., 126 Cal. 587, 59 Pac. 129. Box CAK INSTEAD OP CABOOSE; NEGLIGENCE OP ENGINEER. The declaration was that the deceased, a freight conductor, was injured by reason of the action of the defend- ant in failing to furnish him with a proper caboose, but supplied him with a poorly built box ear, without doors or windows in the ends or lookout station in the top. That he used the car upon the promise of the defendant to furnish a proper caboose, which it failed to do, and that one of defendant's trains neghgently ran into the rear of de- cedent's train, causing the injuries complained of. The real question presented by demurrer was whether the proximate cause of ihe injury to the deceased was the negligence of feUow-servants upon the second train, neghgence of th company in faUing within a reasonable time 154 Masteb and Sebvant. §53 one party is not exempt from full Liability although an- other party was equally culpable. ^^ 56. Lake v. Milliken, 62 Me. 240; Chapman v. New Haven R. Co., 19 N. Y. 341, 75 Am. Deo. 344; Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267. to provide deceased with a suitable car, or the combined result of both negUgences. Coming to the latter ground, after defining generally what is proximate cause, it was said that the question was whether defendant could have foreseen, by any ordinary or extraordinary fore- sight, that, because of its negligence to furnish such caboose, another train upon its tracks would negli- gently run into this caboose rather than into one properly built and fitted up; if the second train is eliminated from the consideration of the case, was the negligence of the company to furnish a proper caboose in any manner whatever the cause of the death of such employee. It was held that under the allegations of the declaration it did not appear that the kind of car furnished had any connection with the injury. If, however, the allega- tion had been that, by reason of the neghgence of the defendant in failing to furnish a way car with windows in the end and with a cupola, the deceased was unable to see the approaching danger, for which he was on the lookout, and therefore he was injured he prob- ably would have alleged a good cause of action. Lutz v. Atlantic & P. R. Co., 6 N. M. 496, 30 Pac. 912, 16 L. R. A. 819. Cab defective; negligence OF engineer. The rule was held not to apply where a servant knew the character of the appliance which he operated and was injured solely by the negligence of another em- ployee. The facts were that a conductor was injured while going between ears to arrange a coupling, the cars being so constructed that there was not space to permit of a person going between them for that purpose, and the injury was occasioned by the engineer backing the engine without a signal. Long V. Coronado R. Co., 96 Cal. 269, 31 Pac. 170. An employee was injured while coupling oars having bumpers of unequal height, but not so un- equal as to perniit one to pass by the other, but which rendered the act of coupling more difficult. The injury was received from the man- ner in which the cars were forced back by the engineer. It was held that the use of cars with mis- matched coupling apparatus was not negligence, but, conceding such to be the case, it was said it was not the proximate cause of the plaintiff's injury. The mismatched couplings furnished an occasion for uncoupling the cars in a slower way than if they had not been mis- matched, but there was no risk of any injury from such delay while the ears were standing stiU. It was the negligence in driving back the train, and not the mismatched couphngs, which was the direct §53 Peoximate and Concueeing Causes. 155 If the negligence of the master contributed to, that is to say, had a share in, producing the injury, the master is liable though the negligence of a feUow-servant was also proximate cause of the injury. The failure to have the cars of equal height and the driving back of the train were distinct and independ- ent and had no connection with each other; the failure to have the cars of equal height being the remote cause, while the act of neg- ligence in driving the train back was the proximate cause, within the meaning of the cases. Norfolk & W. R. Co. V. Brown, 91 Va. 668 22 S. E. 496. Ceanb; defective crank han- dle; NEGLIGENCE CO-EMP OTEB OPERATING. Where an employee was injured by the negligent con- duet of his feUow workman in per- mitting a crane to suddenly slip out of "slow gear" into "fast gear," thereby breaking the handle of the crank, which had been cracked, and of which the foreman had knowledge, it was held that a non- suit was proper. Barlow v. Stand- ard Steel Casting Co., 154 Pa. St. 130, 26 Atl. 12. Draw bars; defective chains; NEGLIGENCE ENGINEER. ChaiuS connecting the lever with the draw bar upon a car were broken so that it became necessary for the brake- man to go underneath the plat- form to uncouple the cars. While a brakeman was so engaged, the conductor, not knowing his posi- tion, signalled the engineer to start the train, which he did, thereby causing injury to such brakeman. It was held that the negligence of the conductor in starting the train was the sole cause of the injury, and that the failure to have the chains repaired was not a con- tributory cause. Pease v. Chicago & N. W. R. Co., 61 Wis. 163, 20 N. W. 908. Floor, opening in; co- EMPLOTEE REMOVING COVER. Where an employee was injured by faUing into an opening in the floor, and there was evidence tending to show that It was usually covered, and that the covering was removed by such employee's fellow-servant, it was held that, if such was the fact, the plaintiff could not recover from the master. Hoffman v. Clough, 124Pa.St.505, 17Atl. 19. Machine defective; negli- gence ENGINEER. Where ma- chinery was held together by two clamps, which were improper appli- ances, making the use of the ma- chinery dangerous, and one broke and the engineer continued to use the machinery with but one clamp, which rendered it stiU more dan- gerous, and this afterwards broke and injured a workman engaged in the same general business, it was held that the employer was not responsible, as the proximate cause of the injury was the carelessness of the engineer, who was a fellow- servant with the injured man, in running his engine when it was dan- gerous. Philadelphia Iron & Steel Co. V. Davis, 111 Pa. St. 597, 4 Atl. 513, 56 Am. Rep. 305. Machine defective ; em- ployee OPERATING with GREA8T HANDS. It was held that the act of a machinist, while operating a machine with greasy hands, was the proximate cause of a servant's 156 Masteb and Sebvakt. §53 contributory. If the negligence of the master contributes to it, it must necessarily be an immediate cause of the injury." Where two conciuring causes contribute to an accident to an employee, the fact that the master is not responsible for one of them, does not absolve him from KabOity for the other cause for which he is responsible.^* The negUgence of each person is a proximate cause where the injmy would not have occurred but for that negligence.^' injuries, and not the absence of a cateli on the machine, which, had it been present, notwithstanding such act of the machinist, would have prevented the accident. Sul- hvan V. Wamsutta Mills, 155 Mass. 200, 29 N. E. 516. Mine, defective appliance in; negligence of enginebk. The court refused to apply the doctrine where a miner was injured by the negUgence of the engineer at the mine, in a case where it was alleged that the machinery and appUances were defective and such defects contributed to the accident. Tre- watha V. Buchanan G. M. & M. Co., 96 Cal. 494, 28 Pae. 571, 31 Pac. 561. 57. Norfolk & W. R. Co. v. Phelps, 90 Va. 665, 19 S. E. 662; Morrissey v. Hughes, 65 Vt. 553, 27 Atl. 205; Rogers v. Leyden, 127 Ind. 50, 26 N. E. 210; Cincinnati, I. & St. L. & C. R. Co. V. Lang, 118 Ind. 579, 21 N. E. 317; Thomas v. Smith, 90 Minn. 379, 97 N. W. 141; Ryan v. Farley & Loelscher Mfg. Co., 140 Iowa, 619, 119 N. W. 86; McCreery v. Union Roofing & Mfg. Co., 143 Iowa, 303, 119 N. W. 738; Wilmington Star Mining Co. V. Fulton, 205 U. S. 60, 51 L. Ed. 708, 27 Sup. Ct. Rep. 412; Chicago & A. R. Co. V. House, 172 Ih. 601, 50 N. E. 151; HanseU-Elcoek Foundry Co. v. Clark, 214 lU. 399, 73 N. E. 787; Lockwood v. Ten- nant, 137 Mich. 305, 100 N. W. 562; Welch v. Jackson & Battle Creek Traction Co., 154 Mich. 399, 117 N. W. 898; Conroy v. G. N. & F. Smith Iron Co., 194 Mass. 468, 80 N. E. 488; Texas P. R. Co. V. Maupin, 26 Tex. Civ. App. 385, 63 8. W. 346; Haverman v. Fort Worth & R. G. R. Co., 20 Tex. Civ. App. 610, 50 S. W. 155; Gibson v. Sterling Furniture Co., 113 Cal. 1, 45 Pac. 5; Keast v. Santa Ysabel G. M. Co., 136 Cal. 256, 68 Pac. 771 ; Williams v. Southern Pac. Co., 133 Cal. 550, 65 Pac. 1100; New Jersey & N. Y. R. Co. v. Young, 1 C. C. A. 428, 49 Fed. 723; Gulf, C. & S. F. R. Co. V. Kizziah, 86 Tex. 81, 23 S. W. 578; Railway Co. V. Kirk, 62 Tex. 227; Railway Co. V. Whitmore, 58 Tex. 276; Fisk V. Central Pac. R. Co., 72 Cal. 38, 13 Pac. 144, 1 Am. St. 22; Jones V. Florence Mining Co., 66 Wis. 268, 28 N. W. 207, 57 Am. Rep. 269. 58. Wilmington Star Mining Co. V. Fulton, 205 U. S. 60, 51 L. Ed. 708, 27 Sup. Ct. Rep. 412. 59. Johnson v. Northwestern Tel. Exch. Co., 48 Minn. 433, 51 N. W. 225. § 53 Peoximate and Concuebing Causes. 157 And it is no answer that the negligence or trespass of a third person contributed to the injury.^" And this is true although the party contributing was acting without concert with, and entirely independent of, the party to whom the cause is attributable in the first instance. ^^ Distinction between concurring and intervening causes. Care must be taken in the application of the rule to distinguish between concurring causes and intervening causes. This may not always be free from difficulty. An intervening cause, that is, force or power intervening, must be subsequent in time. It must be a new or inde- pendent force or power. ^^ It must be of itself sufficient to stand as the cause of the misfortune.*' It need not necessarily be the act of a responsible human agency.^* It must be a cause which interrupts the natural sequence of events, turns aside their force, prevents the natural and probable effect of the original act or omission, and pro- duces a result that could not reasonably have been anticipated.®^ The concurrent or succeeding neghgence of a fellow- servant or a third person, which does not break the se- quence of events, is not such a cause and constitutes no defense for the original wrong doer, although, in the absence of the concurrent or succeeding neghgence, the accident would not have happened.** 60. Eaton v. Boston & L. 63. Louisiana Mut. Ins. Co. v. R. Co., 11 AUen (Mass.) 600, 87 Tweed, 7 WaU. (U. S.) 44, 19 L. Am. Dec. 730; Conroy v. G. W. & Ed. 65. F. Smith Iron Co., 194 Mass. 468, 64. Wharton, sections 114-155. SON. E. 488. 65. Union Pae. R. Co. v. 61. lUidge V. Goodwin, 5 Car. Callaghan, 6 C. C. A. 205, 56 Fed. & P. 190; Eaton v. Boston & L. R. 988; Martin v. North Star Iron Co., 11 AUen (Mass.) 500, 87 Am. Works, 31 Minn. 407, 18N. W. 109. Deo. 730. 66. Union Pae. R. Co. v. Calla- 62. Aetna Insurance Co. V. Boon, ghan, 6 C. C. A. 205, 56 Fed. 988; 95 U. S. 117, 24 L. Ed. 395. Ricker v. Freeman, 50 N. H. 420, 9 158 Master and Servant. § 53 Reason for rule. The reason of the rule Hes in the fact that the effects produced by two or more concurrent causes cannot be separated and the damages apportioned; that because such may be the case the injured party should not be re- fused redress. The rule is, and always has been, in case of joint tort feasors, that either or all are Uable." Accident and master's negligence concurring. In case the injury is caused by accident, and the de- fendant's negligence concurs to the extent that the acci- dent would not have happened but for such neghgence, he is Uable for the consequences.*^ Thus, it may be said, as it has been held, that the general doctrine is that it is no defense in actions for injuries resulting from neghgence, that the neghgence of third persons or an inevitable accident or an inanimate thing, contributed to cause the injury to the plaintiff, if the neghgence of the defendant was an efficient cause without which the injury would not have happened.^' In application of principle, master's duty first to be considered. In making appKcation of the principle under discus- sion, in so far as it relates to the concurring negligence of master and fellow-servant, to particular circumstances, it is of the utmost importance that the duties and obHga- tion on the part of the master be first determined, as these duties and obligations which are personal to the master are so widely different in different states, resort must be had to the exact doctrine in the particu- Am. Rep. 267; Burrows v. Coke Deo. 730; Austin v. New Jersey Co., L. R. 5 Exoh. 67. Steamboat Co., 43 N. Y. 75, 67. Cooley on Torts, section 3 Am. Rep. 663. 153; Woodbridge v. Conner, 49 69. North Chicago St. R. Co. Me. 353, 77 Am. Dec. 263; Harden v. Dudgeon, 184 lU. 477, 56 N. E. V. Feleh, 109 Mass. 154: Slater v. 796; Commonwealth Elee. Co. v. Merserau, 64 N. Y. 138; Pittsburg, Rose, 214 lU. 645, 73 N. B. 780; etc. R. Co. V. Spencer, 98 Ind. 186. Hansell-Elcook Foundry Co. v. 68. Eaton v. Boston & L. R. Clark, 214 lU. 399, 73 N. E. 787. Co., 11 Allen (Mass.) 500, 87 Am. § 53 Pboximate and Concueeing Causes. 159 lar state whose precedent is sought to be used. The rule under consideration, we may safely state, applies to eases where the master whose personal duty is that of furnishing reasonably safe appliances, ways or instru- mentalities with which to perform his work, has fur- nished such as were not reasonably safe, and where the injury was occasioned by the neghgent manner in their use by other servants, co-employees of the injiired serv- ant, as well as where the master owes to his servant other duties such as command and superintendence which under the law he could not delegate, but were personal to him- self, and such duties were neghgently performed, either by himself or by those who directly represented him in their performance, and the employee upon whom de- volved the duty of execution was also neghgent in the performance of his duty, when a fellow-servant. The rule may apply in other cases, and does apply when the negh- gent act or omission of the master increases the hazard of the employment, and when the neghgence of the master is continuing and the neghgence of the servant co-operates with it, giving it force and carrying it forward to its final result.™ 70. The question is well illus- ant was culpable therefore in per- trated in the following eases: mitting the use of such an imperfect The first was an action where the machine. Now if the defendant neghgence of the master consisted had, by its neglect, unnecessarily in permitting an edger in his miU to increased the danger attendant remain out of repair. An employee upon the use of the machine, it was injured by the neghgent use of is hable for an injury to an such machinery by a f eUow-servant, employee, who is not himself guEty without whose neghgence, that is, of neghgence, resulting from the if the machine had been properly use of such imperfect and danger- used, the accident and consequent ous machine; and it is no excuse injiuy would not have happened, for defendant that some of its The court say: "We think it clear employees were careless in the from the evidence that if the ma- use of such dangerous machine, and chine was out of repair as claimed that if it had been carefully han- by plaintiff, then the use of it in the died, the accident would not have mill even by the most careful men, occurred. We are of the opinion was more dangerous to the men that the neghgence of the eo-em- working in its vicinity than the use ployee of the plaintiff under such of a perfect machine. The defend- circumstances, would not excuse 160 Masteb and Servant. §54 The rule must be limited to cases wliere there has been negligence on the part of the master, either in the selec- tion of the neghgent fellow-servant, or some other negli- gence, for which the law would hold him responsible if it had been the sole cause of the injury. In other words, while contributory neghgence of the servant injured, will defeat his recovery against the neghgent master, contrib- utory neghgence of the fellow-servant will not defeat such recovery. ''1 Where negligence of servant not probable conse- quence of master's act. The mere concurrence of an act of the master with a neghgent act of the employee, producing an injury that the defendant, but woidd simply be negligence contributing to the injury caused by the negligence of the defendant, and both the em- ployee and the defendant would be liable to plaintifif." Sherman v. Menomonee River Lumber Co., 72 Wis. 122, 39 N. W. 365, 1 L. R. A. 173. In another case in the same court, the complaint alleged in substance that the draw bar to defendant's engine by reason of the manner of its construction, was defective and too short to be used in connecting a car in use, styled the "Green Bay car." Upon the argument, the car notwithstanding its designation, was considered a local one. The ooiu^ say: "A railroad company is not required to have all its cars and locomotives constructed after the same pat- tern. It may lawfully construct them after different models and may use different apphances in operating its railroad. The law only requires that such cars, loco- motives and apphances shall be reasonably safe for the uses to which they are put. Hence it was not per se neghgence for the defendant to use upon its railroad an engine, the drawbar of which was too short to permit one of its cars to be safely coupled to or detached from such engine." The court further say: "It does not appear when, where or by whom this car was attached to such engine; but the attaching of it, as well as the order detaching it therefrom were manifestly the acts of the servants of the defend- ant engaged in operating its rail- road, and hence of the co-employee of the plaintiff, and therefore the defendant is not liable for the injury resulting to the plaintiff." Whitwam v. Wisconsin & M. Rail- road Co., 58 Wis. 408, 17 N. W. 124. In the first of these eases the Ua- bihty of the master depended upon its neghgence or failure of duty. In the latter there was no liabihty as there was no faUure of duty on the part of the master, although the appHance was more dangerous than if another pattern had been used. 71. CresweU v. Wilmington & N. R. Co., 2 Pennew. (Del.) 210, 43 Atl. 629. '§ 54 Peoximate and Concueking Causes. 161 was not a probable consequence of the master's act, does not render the master liable."' One is responsible for such consequences of his faiilt as are natiiral and probable; but if his fault happen to concur with something extraordinary and therefore not hkely to be foreseen, he wiU not be responsible for the imexpeeted residt.^' Liability of master and servant as several and not joint. Federal courts have held that the habihty of the master and that of the offending servant is several, and not joint, and hence an action cannot be brought against them jointly.^* Such, however, is not the law. In fact it is contrary to the reason upon which the rule is founded, and that is as have seen, that there is no way by which the damage can be apportioned." § 54. Illustrations of concurrent negligence. The rule that where the neghgence of the master and that of a fellow-servant concurs, the master is Uable, has been apphed in many cases, especially in connection with defective appUances,'® such as a defective brake on a 72. Tomaczewski v. Dobson, plotee. Although the duty of 208 Pa. St. 324, 57 Atl. 718. making a proper adjustment of an 73. McCauley v. Logan, 152 apparatus is that of a feUow-serv- Pa. St. 202, 25 Atl. 499. ant, who would probably, with 74. Marax v. Cincinnati N. 0. the exercise of extreme care, have & T. R. Co., 72 Fed. 637; HukiU protected against the injury, yet V. Maysville & B. S. R. Co., 72 where the appliance itself was Fed. 745; Landers v. Felton, 73 defective, a case of concurrent neg- Fed. 311. Ugence was presented for the de- 75. McGregor v. Reid, Mur- termiaation of the jury. Herring dock & Co., 178 111. 464, 53 N. v. E. L Dupont deNemoursP. Co., E. 323, 69 Am. St. Rep. 332; Mc- 139 Wis. 412, 121 N. W. 170. Hugh V. Northern Pao. R. Co., 32 Boilbb not equipped with Wash. 30, 72 Pao. 450; Morrison fitsible plug; negligence of V. Northern Pac. R. Co., 34 Wash. co-emplotee. It was said in refer- 70, 74 Pao. 1064. ence to the use of a boiler without 76. Appliances, defective; fusible plugs, required to be used by IMPROPER adjustment bt EM- a statuto: "We are not prepared 1 M. 4 S.— 11 162 Masteb and Sebvant. §54 to say that if one uses a dangerous instrumentality without the safe- guards which science and experi- ence suggest or the positive rules of law require, he is not to be re- sponsible for an injury resulting from such use because the negli- gence of one of his servants may have contributed to the result or because a possible vigilance of the servant might have prevented the injury." Cayzer v. Taylor, 10 Gray (Mass.) 274, 69 Am. Dee. 317. Bkake, defective; negligence OF CO-BMPLOYEE OPERATING. The rule was appUed where it was claimed that the neghgence of a foreman and that of the officers of the company in not detecting a defective brake rod co-operated with the neghgence of a fellow- servant as the cause of Injury to an employee. Cowan v. Chicago, M. & St. P. R. Co., 80 Wis. 284, 50 N. W. 180. Brake, defective; negligence OP ENGINEER. The rule was apphed where, under existing con- ditions, an engineer of a train negUgently ran his engine at too great rate of speed and came in coUision with cars standing on the track, running by a signal being, unable, by reason of the speed and a defect in the air brakes, of which defect the defendant had notice, to cheek his train after discovery of the danger. A fireman was injured as the result. Young v. New Jer- sey & N. Y. R. Co., 46 Fed. 160 [affirmed in 1 C. C. A. 428, 49 Fed. 723]. In the operation of a freight train in the night time, the train broke apart and the forward part of the train, being afterwards stopped, was run into by the detached rear cars, including the caboose, and the conductor, who was in the caboose, was killed by the colUsion. There was evidence tending to show that the immediate cause of the breaking apart of the train was the letting off of a brake on one of the rear cars, caused by the jar of the car in its motion. There was also evidence tending to show that at the time there was a sudden increase of speed of the locomotive. The question pre- sented was that of proximate cause. It was said it was a proper infer- ence from the evidence that the sud- den release of the brake was the immediate and direct cause of the breaking of the coupling. The starting forward of the locomotive upon a down grade may have con- tributed with the defective brake to cause the train to break apart. But that was one of the ordinary incidents of the movement of the train, which did not prevent the defective brake being deemed a legal and proximate cause of the result. The subsequent coUision is further removed from the cause in the order of events, but not so in its casual relation. The princi- ple was apphed that a wrong doer is at least responsible for all the injuries which resulted as a natural consequence from his misconduct — such consequences as might rea- sonably have been anticipated as likely to occur. The habiUty of such a colUsion occurring from the breaking apart of a freight train when in motion is apparent. The case is not one for the appUcation of the rule that an intervening, independent, wrongful act, by which the injury is immediately caused, and for which the defend- ant is not responsible, forbids a §54 Peoximate and Concubeing Catjses. 163 hand car or the absence of any brake," defect- recovery for the remote cause, and remits the party to Ms remedy against him to whose misconduct the injury is immediately attribu- table. We look upon the negligence of the defendant as being in operas tion, as an efficient cause, down to the time of the final catastrophe. The contributory circumstance of the stopping of the train was not an independent, efficient cause of injury, but was a circumstance caused by the negligence of the defendant, and for which it is responsible, being but a natural and probable result of the breaking apart of the train. Ransier v. Minneapolis & St. L. R. Co., 32 Minn. 331, 20 N.W. 332. Concurring negligence op trainmen on different roads. A fireman in the employ of a railroad company, injured by the negligence of the trainmen in the employ of another railroad company at a crossing, may recover from the latter although the engi- neer of the train upon which he was employed was also negligent. He is not responsible for the negli- gence of such engineer. Gray v. Philadelphia & Reading R. Co., 24 Fed. 168, 1 Blatchf. 263. Coupling pin defective; yard master's negligence. The rule was apphed where it was found that the employer was negligent in furnishing a coupling which was old and bent and that the bumpers and dead woods upon the cars were not properly arranged, and also that the yard master, a feUow-servant, of an employee injured, in attempt- ing to make the coupling, was also negligent, and that their combined negligence produced the injury. McMahon v. Henning, 3 Fed. 353, 1 McCrary 516. 77. Where an employee was injured while using a hand car, as was alleged, by reason of the ab- sence of a brake; that he, in com- pany with others of the crew, was accustomed to use such car and another in going to and from their work, and that on discovering the defect he requested and was al- lowed to ride upon such other car, and sometime thereafter was in- jured whUe on such car, which was in front of the one without a brake, and the reason alleged was that the car without a brake ran into the car upon which he was riding, those in charge of the former being unable to control its movements by reason of the lack of such brake, it was held that such employee did not, as matter of law, assume the risk incident to the use of such car. The doctrine of concurring negh- gence was apphed, which was stated to be that where a servant is in- jured directly through the negli- gence of his master in furnishing his fellow-servants defective appli- ances, the master is liable, though the negligence of the fellow-servants in the use of the defective appU- ance may have contributed to the injury. International & G. N. R. Co. V. Williams, 34 S. W. (Tex. Civ. App.) 161. Where a section hand was on a hand car with other employees under control of a sec- tion boss, and an extra train approached which gave no warning or signals, and it appeared that the brake appliance on the hand car was defective, and in the face of 164 Mastee and Seevant. §54 ive locomotives/' defective cars, 79 defective immment peril Buch employee jumped from the hand car and was injured, it was held that the jury were warranted in finding a verdict for the plaintiff, upon the ground that the negligence of a feUow- servant would not excuse the de- fendant's liability to a co-servant for an injury which would not have happened had proper appliances been furnished. Northern Pac. R. Co. V. Charless, 2 C. C. A. 380, 7 U. S. App. 359, 51 Fed. 562. [Reversed in 162 U. S. 359, 40 L. Ed. 999, 16 Sup. Ct. Rep. 848]. 78. The general rule was stated that where the master furnishes defective machinery for use In the prosecution of his business, he is not excused by the negligence of a servant using the machinery from liability to a co-servant for an injury which could not have hap- pened had the machinery been suitable to the use to which it was applied. Where, therefore, the employee of a railroad corporation was injured by the sudden starting of a locomotive, caused by its being defective and out of repair, of which defects the corporation had notice, it was held that it was no defense that the engineer could have so managed the engine as to have prevented the accident. Cone v. Delaware, L. & W. R. Co., 81 N. Y. 206, 37 Am. Rep. 491. 79. Cab, defective; negli- gence OF CONDUCTOR. If it Were conceded that a feUow-servant delivered a car to an employee without a motor handle, or with a handle not fitting the car and with which the car could not be reversed, it was held that the street railway company would be liable to a serv- ant whose injiuries were the result of such neglect, on the ground of concurring negligence. However it appeared that the car was fur- nished by the barn boss, held not to be a feUow-servant but to repre- sent the master in performing the master's duty in that respect. Chicago Union Traction Co. v. Sawnseh, 218 lU. 130, 75 N. E. 797, 1 L. R. A. (N. S.) 670. Cab defective; negligence op ENGINEER. Where a brakeman was injured while descending a car to uncouple it from the engine, and the bumper was broken off, and it was alleged that the defect in the car was the proximate cause of the injury, though it appeared that the engineer suddenly, without giving the customary signals, backed the engine against him, to the argu- ment that the injury was due to the negligence of the engineer who was a fellow-servant, it was said that it is the universally recognized duty as well of a railroad company as of any other employer to pro- vide suitable appliances for the conduct of its business and to keep them in repair, and if in conse- quence of its failure to dosoaserv- vant in its employ is injured with- out any fault on his part, it cannot successfully defend on the ground of the negligence of a fellow-serv- ant. The servant, although he assumes the ordinary risk of busi- ness, including the negligence of fellow-servants, does not contract against the combined negligence of a fellow-servant and his em- ployer. Richmond & D. R. Co. v. George, 88 Va. 223, 13 S. E. 429. §54 Proximate and Concueeing Causes. 165 derricks/" defective drawbars,*' defective engine wheel,* Cab wheel defective; negli- gence OP ENGINEEE. Where a brakeman was injured, as was alleged, by reason of a defective car wheel, he having no knowledge of the defect, the court properly refused an instruction that if fast running contributed proximately to the accident, the train being operated at the time by fellow-serv- ant s of such brakeman, he could not recover. It was held that he could recover on the ground that, if such were the fact, it was a case of concurring negligence. Houston & T. C. R. Co. V. KeUey, 35 S. W. (Tex. Civ. App.) 878. 80. Where the negligence of the master in failing to provide and maintain a safe place, contributes to the injury of the employee, the master was held liable notwith- standing the concurring negligence of those performing the work. This rule applied where a derrick of an unsafe type "Vas furnished and injury caused by the manner in which it was operated. Kreigh v. Westinghouse, Church, Kerr & Co. 214 U. S. 249, 53 L. Ed. 984, 29 Sup. St. Rep. 619. It was said the fact that the boom of a derrick, if defective, was caused to fall and injure an employee, by the negli- gence of a feUow-servant, did not, as matter of law, relieve the master from liability. The defective and unsafe condition of the derrick might stUl be found as the proxi- mate cause of the injury. Butler V. New England Structural Co., 191 Mass. 397, 77 N. B. 764. 81. The negligence of an engi- neer in failing to move the forward section of a broken train fast enough to avoid a coUision with the rear section, concurring with the negh- gence of the company in respect to a defective drawbar which caused the train to break, it was held did not relieve the company from lia- bility to a servant thus injured. Chicago & N. W. R. Co. v. Gillison, 173 lU. 264, 50 N. E. 657, 64 Am. St. Rep. 117. 82. Where the fireman was injured by the derailment of an engine, caused by a defect in the flange of a wheel, and also by a defect in the brakes upon the engine, the following charge was held to correctly state the law: "H you beheve from the evidence that one of the proximate causes of the accident, without which it would not have occurred, was the unsafe condition of the wheel or brake, or both, as claimed by the plaintiff, and plaintiff himself was not guilty of negligence in failing to apply the means furnished to stop the engine, and that defend- ant was guilty of negligence in fur- nishing them as hereinbefore ex- plained, then defendant would be liable for an Injury to plaintiff therefrom, notwithstanding the negUgenoe of the engineer or brakeman may have contributed to the accident." It was said that a distinction is to be noted between negligence in furnishing unfit or defective machinery to a servant, and the careless or improper man- ner in which the machinery, when not defective, is used by a feUow- servant. St. Louis & S. F. R. Co. v. McClain, 80 Tex. 85, 15 S. W. 789. 166 Master and Seevant. §54 Tinguarded openings in floors,*' unguarded guy ropes holding structure over street,'* defective hand cars,** defective head light or hoisting apparatus,** and defective machinery in general.*^ 83. Where a master has been negligent in failing to guard against the liability of loose objects falling through an unprotected opening in an upper floor upon employees below, it was said it will not be released from habiUty of the acci- dent so happening by the fact that other employees negligently loos- ened the objects from their place. Huggard v. Glucose Sugar Ref. Co., 132 Iowa, 724, 109 N. W. 475. 84. It was held to be negUgenee on the part of the master in not properly guarding by signals or otherwise, the guy ropes which held elevated timbers in place over a sidewalk in a public street, upon which timbers a carpenter was at work in the night time. The guys were put up by fellow-servants. A team, by reason of one of the guys not being guarded came in contact with it, and the carpenter was thrown from his position and injured. The fact that the negh- gence or act of fellow-servants or the act of the driver of the team may have contributed to the acci- dent, did not reheve the master. Kennedy v. Grace & Hyde Co., 92 Fed. 116 [affirmed in 40 C. C. A. 69, 99 Fed. 679]. 85. The general rule recog- nized and applied where a member of a section crew was injured by the car upon which he was riding be- coming derailed by contact with another hand car ahead, it being alleged that the car which was derailed was defective in that among things the brakes would not work. Maupin v. Texas & P. R. Co., 40 C. C. A. 234, 99 Fed. 49. 86. An engineer of a road en- gine was injured by collision with the switch engine in the yard. There was evidence to the effect that the former was unable to see the switch engine by reason of the head hght upon the switch engine not being in perfect condition. It was held that even if it were conceded that the engineer of the switch engine was his feUow-serv- ant, stiU that would not exoner- ate the master; if there was neg- lect on his part to see that the head light was in proper condition it would then be a case of concurring neghgence. San Antonio & A. P. R. Co. V. Harding, 11 Tex. Civ. App. 497, 33 S. W. 373. The fact that the men operating a hoist- ing apparatus were feUow-servants of one injured, is immaterial where the neghgence charged is that of the master in the improper con- struction of the appliance. Leonard v. Kinnare, 174 lU. 532, 51 N. E. 688. 87, An employer who negU- gently permits the use of a machine in doing his work which, by reason of its defects, is unnecessarily dan- gerous to his employees, is liable for any injuries resulting from its use to an employee who was not himself neghgent, even though a co-employee was guUty of negh- gence in managing the machine, and if it had been carefully handled §54 PbOXIMATE and CONCTJEEIITG CaUSES. 167 So the rule has been appKed to unsafe conditions in a mine,** and also unsafe places to work in general,*' the accident would not have occurred. This was said where the claim was that an edger in a saw- mill was out of repair, and while being used a board was thrown back, injuring an employee other than the one operating it. Sherman V. Menomonee River Lumber Co., 72 Wis. 122, 39 N. W. 365, 1 L. R. A. 173. It was said that although the negligence of an employee in operating a defective machine con- curs with the negUgence of the master in maintaining it, the master is liable to a co-employee injured thereby, though, if the machine had been carefully han- dled, the accident would not have occurred. This rule applied where the head sawyer in a mill injiu-ed by a board being thrown back from an edger. Grant v. Keystone Lumber Co., 119 Wis. 229, 96 N. W. 535, 100 Am. St. Rep. 883. 88. An operator in a mine being negligent in failing to prop the roof of an entry therein, was not relieved from liability from the mere fact that the negligence of an employee co-operated in causing the injury to a co-employee. Madden v. Saylor Coal Co., 133 Iowa. 699, 111 N. W. 67; Deweese v. Merri- mac I. M. Co., 128 Mo. 423, 31 S. W. 1 10. The general rule applied where a miner was injured by the concurring acts of feUow-miners, who negligently left an obstruction in the shaft of a mine and by the engineer who negligently allowed the cage to strike the obstruction. Handley v. Daly Min. Co., 15 Utah 176, 49 Pac. 295, 62 Am. St. Rep. 916. Where the employer has failed to use ordinary care in the mode of doing the work and therefore made the place of work unsafe, the act of a feUow-servant in faihng to give warning to the employee, as was his duty, and as an additional security to the employee, it was held did not relieve the employer for liabihty to the servant. Hennesey V. Bingham, 125 Cal. 627, 58 Pac. 200. 89. Pi/ATporm; defective; neg- ligence co-EMPLOTEE. The rule was applied where an employee was injiu-ed by another employee run- ning against him, causing him to fall, and it was alleged that the platform upon which the employees were working was too narrow and somewhat obstructed with mate- rials. Young V. Shickle, H. & H. Iron Co., 103 Mo. 324, 15 S. W. 771. And also where the master was negligent in not furnishing a safe platform upon which the employees work required them to be, and the negligence of the fellow- servants in handhng the plank. The evidence showed that the plat- form was not reasonably safe by reason of the danger, that by some inadvertence of the men in handling the plank, one end would miss a narrow bearing on which it was supported and fall through. Kroe- ger V. Marsh Bridge Co., 138 Iowa 376, 116 N. W. 125. Sending out motorman incom- petent FROM overwork; FAIIiURB TO OBSERVE PRECEDING CAR. Through overwork and loss of sleep, a motorman failed to observe a rule requiring him to keep within 100 feet behind a preceding car. 168 Master and Servant. §54 as where a railroad track is defective,'" or a trap door is As a result he collided -with such a car injuring its motorman. It was held that the failure to observe the rule by a fellow-servant would not absolve the master from ha- bUity on the ground that the master was negligent in placing such motorman in charge of the car in his unfit condition from overwork and loss of sleep. Ft. Wayne & W. V. Traction Co. v. Crosbie, 169 Ind. 281, 81 N. E. 474, 13 L. R. A. (N. S.) 1214. Sending car out op schedule time; negoqbncb of motobman ON ANOTHER CAB. Where it ap- peared the railroad company was negligent in sending out a second car, out of schedule time, without warning to the motorman of the first, whereby a collision occurred resulting in the death of such motor- man, the fact that the motorman of the second car was also negli- gent in delaying the departure of his oar, and in attempting to pass the place of coUision on the sche- dule time of decedent's car, it was held woidd not defeat a recovery against the company for decedent's death. Ft. Wayne & W. V. Trac- tion Co. V. Roudebush, 173 Ind. 57, 88 N. E. 676, 89 N. E. 369. 90. The general rule was ai>- plied where the negligence of the master consisted in maintaining a spur track defective in, among other things, that it was laid imder a train house part of the way, where there was only two feet from the floor of the train to the top of the cars, and that of trainmen in detaching ears from the train. GUa VaUey, G. & N. R. Co. v. Lyon, 203 U. S. 465, 51 L. Ed. 276, 27 Sup. Ct. Rep. 145. The rule in respect to concurring causes was applied where cars were set in motion by members of a switching crew, coUiding with an engine on the track and injuring a fireman thereon. It was stated that even if the members of such crew and the fireman were fellow-servants, still the master would be liable if but for the improper grade of the track and the defective brakes, the cars would either have been under control or would not have coUided with the engine. Missouri, K. & T. R. Co. V. Rams, 40 S. W. (Tex. Civ. App.) 635. A master was held liable for injuries to a fireman from the derailment of a train, caused by the worn condition of a rail over which the train was run by the engineer at a speed greater than that authorized by the schedules, though but for such improper speed the derailment would not have happened. Clyde v. Richmond & D. R. Co., 59 Fed. 394. The rule applied where negligence was al- leged of defects in a railroad track and in appliances for coupling cars, combined with the negligence of fellow-servants in operating the train. Gordon v. Chicago, R. I. & P. R. Co., 129 Iowa, 747, 106 N. W. 177. It was held that the negli- gence of an engineer in respect to the rate of speed and in the manner which he handled the cars, would not reUeve the company from lia* biUty from an injury occasioned an employee, where the master waa negligent in maintaining a defeotiva track which also contributed to the injury. Pittman v. Chicago & E. I. R. Co., 231 111. 681, 83 N. B. 431; §54 Pboximate and Concueeing Causes. 169 left unguarded," or in case of a defective trestle.'" So ■where the negUgenee of a fellow servant co-operates with KlosM V. Railroad Supply Co., 235 111. 146, 85 N. E. 274; Smith v. Memphis & St. L. R. Co., 18 Fed. 304. The general rule applied where a railroad company allowed sand to aocumulate upon its track and the engineer ran his locomotive at such place at a reckless rate of speed. Trinity & S. R. Co. v. Brown, 46 S. W. (Tex. Civ. App.) 926. Where the track used by the defendant company was out of repair and unsafe, and the plaintiff, an employee on a train thereon, was injured by the rails spreading, it was held that the company was liable, though also it was found by the jury that the conductor, a co- employee, was also negligent in running such train at a dangerous rate of speed, considering the con- dition of the track. Stetler v. Chicago & N. W. R. Co., 49 Wis. 609, 6 N. W. 303. Where it was contended that the accident was caused in part by the negligence of one who loaded logs upon the cars, who was an independent con- tractor, and of the defendant in the condition of its tracks, it was held that the question of the negli- gence of such loader was immate- rial, as the defendant wotild be lia- ble notwithstanding his negligence. Haley r. Jump River Lumber Co., 81 Wis. 412, 51 N. W. 321, 956. Where an employee was injured, as was alleged, by the defective con- dition of the track, and it appeared that the consequences of the de- fective condition of the track ought to have been avoided had the section master given the proper signals, and the failure to do so on his part was neghgence, and one of the proximate causes of the injury sustained, it was held that the neghgence of the section master and that of the defendant company were each of them proximate causes, without the concurrence of which the injury would not have been sustained, and under the rule applicable in such oases the defend- ant is liable as though it was the sole offender. Mooa v. Richmond & A. R. Co., 78 Va. 745, 49 Am. Rep. 401. 91. It was held that the master was not excused from his negligent act in constructing a trap door and leaving it open in the line of travel of one of his employees which con- tributes to the injury of the latter, from the fact that a fellow-servant knew of the danger and might have prevented the injury by warning the employee. Hayes v. Frederick Steams & Co., 130 Mich. 287, 89 N. W. 947. 92. The rule was applied where a brakeman in the employ of a rail- road corporation was injured by the fall of a trestle work supporting a portion of a spur track, which trestle was intended for use for an indefinite period of time, where the fall was caused partly by the defective manner in which the trestle was constructed and partly by the neghgence of a fellow-serv- ant of the injured employee. A distinction was drawn between tem- porary appUances and structures. Ehner v. Locke, 135 Mass. 575. 170 Master and Servant. §54 negligence of the master in not providing a sufficient number of servants, the master is liable.' ' Likewise the rule has been applied where the execution of an unreasonable order concurred with the neghgence of a feUow-servant.'* So where a railroad company retained a switchman in the service after it was chargeable with knowledge of his habitual disregard of the rules relating to locking switches, and requiring him to remain at his post until trains had passed, though it appeared the engineer of a train derailed, caused by such neglect, was also negligent in not observing the position of the target, it was held that a case was presented for the apphcation of the rule.'^ Where a foreman riding on an engine was injiu'ed by the engine striking a wagon at a highway crossing owing to the neghgence of the gate tender in not lowering the 93. Wliere the negligence of an engineer of a train, in the manner in whicii lie operated it, was con- tributory with the negligence of the company in not providing a sufficient number of brakeman, and their combined negligence in the respect named was the cause of an injury to a co-employee of such engineer, it was held that the negligence of the engineer did not have the effect to relieve the com- pany from liability. Booth v. Boston & A. R. Co., 73 N. Y. 38, 29 Am. Rep. 97. 94. Where an employee upon a gravel train was injmred by a col- lision with a freight train while such gravel train was standing on the main track by special order of the superintendent, and it appeared that the conductor as was his duty, in such cases, sent out a flagman to give warning to an approaching train, who so negligently performed his duty that the warning was mis- taken by the engineer, resulting in the collision; and the court hav- ing held that whether such order of the superintendent, under the circumstances, was a reasonable one was for the jury, and the jury having found that it was not, and the further question was presented as to the effect of the negligence of such flagman, it was said that where the special order in respect to the management of a particular train is, under the circumstances, unreasonable, and by the execution of such order a servant of the cor- poration, himself without fault, is injured, it will be no answer to the action of the injured party against the corporation to say that the immediate cause of the injury was the negligence of a feUow-servant of such injured party in the exe- cution of an unreasonable order. Railway Co. v. Henderson, 37 Ohio St. 549. 95. Coppins v. New York Cent. & H. R. R. Co., 122 N. Y. 557, 25 N. F 915, 19 Am. St. Rep. 523. ^ 54 Proximate and Concuebing Causes. 171 gates so as to prevent such wagon from coming onto tlie track, and the failure of the engineer and fireman to ring the bell, their combined negligence was held to be the proximate cause of the injury and recovery was had, the gatekeeper not being a fellow-servant while the engineer and fireman were.'^ Where negligence of master concurs with accident. Where an employee was injured while performing labor near a large rotary saw, which was covered on the side where he ordinarily performed his duties, but was unboxed in part on the opposite side, and his injuries were caueed by his slipping on the floor and his foot coming in contact with the saw, the finding of the jury that it was negligence to maintain the saw thus exposed was sustained, as well as that it was a concurrent cause of the accident." Yet in another court, where a boy only twelve years of age was injured in nearly a similar manner, it was held that the cause of the injury was the accidental sUp- ping of the foot, for which no one was responsible.^^ Concurring negligence of master and stranger. The rule that one is Kable for an injury caused by the concurring neghgence of himself and a third party to the same extent as for one caused by his own negligence, was appHed where a brakeman upon the train of one company was injured in a colhsion at a crossing with the train of another company.^^ And also where a workman was killed by an explosion of his employer's magazine and also of certain powder belonging to another, which had been loaded on wagons and transported some distance from the magazine pend- ing alterations therein, and his employer was guilty of negligence in the preparation for and making of such repairs, and the owner of the powder removed was 96. Chicago & A. R. Co. v. 98. Buckley v. G. P. & R. M. Wise, 206 lU. 453, 69 N. E. 500. Co., 113 N. Y. 540, 21 N. E. 717. 97. Darcey v. Fanners' Lum- 99. Chicago, R. I. & P. R. Co. ber Co., 87 Wis. 245, 58 N. W. 382. v. Sutton, 11 C. C. A. 251, 63 Fed. 394, 172 Masteb and Servant. ^ 54 negligent in not transporting it to such a distano/B as to preclude all danger of explosion in case the magazine was ignited, which negligence of both might have contributed to the death of such workman, both were jointly and severally liable. It appeared that the deceased was driving one of his employer's teams at the time of the explosion, transporting the powder of the other party, and it would seem that the magazine first became ignited causing the explosion of the powder being transported.^"" Concurring negligence of master with act of God. It was stated that a railroad is liable for the death of a servant occasioned by the concurrence of its neghgence with an act of God, such as an unprecedented rain.^"^ 100. Oulighan v. Butler, 189 101. Gulf, C. & S. F. R. Co. v. Mass. 287, 75 N. E. 726. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 395. § 55 CoNTEACTS Limiting Masteb's Liability. 173 CHAPTER VI. CONTRACTS LIMITING MASTER'S LIABILITY. Seo. Seo. 55. Validity in general. 59. Insurance contracts; relief fund 56. Contract between sleeping car department. company and porter. Effect of failure of master to 57. Contract between principal and comply with agreement. contractor. Knowledge of agreement on 58. Contracts embracing risks not part of employee. assumed as based on con- Where beneficiary named not sideration. person entitled to damages for death. § 55. Validity in general. In many states the Employer's Liability Acts contain provisions declaring that contracts between master and servant, which hmit the liability of the master, where injury is occasioned his servant, are null and void. The statutes so declaring have been set forth in the chapter on fellow-servants. Such statutes generally embrace only railroad companies and their employees, and in part, at least, abrogate the rule of feUow-servant as it exists at common law, and hence the purpose of such provisions in the statute is for the most part to prohibit the making of contracts whereby the servant shall assume the risks of the neghgence of fellow-servants. While the courts have held such restrictive statutes vaUd, no substantial reason is given for such determination. The right to contract is an inherent right, where no principle of pubUc policy is violated; a right, as between competent parties, beyond legislative control.^ 1. It must not be forgotten, says tract is void as being against public Sir G. Jessel, M. R., in Printing poUey, because if there is one thing & Numerical Co. v. Sampson, L. which more than pubUc policy R. 19 Eq. 462, 465, "that you are requires, it is that men of full age not to extend arbitrarily, those and competent understanding shall rules which say that a given con- have the utmost liberty of con- 174 Mastee and Servant. § 55 The doctrine of fellow-servants was in its origin placed upon the ground of pubUc poUcy. Such was its only foundation. ^ The states which adopted the rule of feUow-servants have from time to time declared that it was based upon grounds of pubhc pohcy, including states that have adopted the restrictive provisions above stated, such as Indiana, Iowa, Wisconsin and Maine. Likewise the Supreme Court of the United States.' Judge Cooley and other eminent law writers have also so declared. Such doctrine related to the imphed condi- tion in eveiy contract of service. It therefore has been settled as strong as any rule or doctrine can be, that such contracts are not against public pohcy. To sustain the validity of such statutes, the eom-ts must take the para^ doxical position that the legislature may declare that as against pubhc pohcy which is not against pubhc pohcy, or to reduce it, any legislature has the absolute power to declare what is or what is not against pubhc pohcy, and if it is clothed with such absolute power, to extend it to any and all contractual relations, between competent per- sons, and thus abrogate the right of contract. The question of the right of contract has been ques- tioned in some courts, where the act abrogating the fellow- servant rule does not contain such restriction in express terms, holding that the law which destroys that relation in respect to assumption of risk itself is a prohibition against any contract by which its provisions may be evaded. Other courts, however, entertain a contrary tracting and that their contracts the public. The defense is allowed when entered into freely and volun- not for the sake of the defendant, tarily shall be held sacred. There- but for the sake of the law itself. fore you have this paramount pub- Oscanyan v. W. P. Arms Co., 103 lie policy to consider; that you are U. S. 268, 26 L. Ed. 539. not lightly to interfere with this 2. Farwell v. Boston & Wor- freedom of contract." Where cester R. Co., 4 Meto. 49, 38 Am. a contract is declared void as Dec. 339. against public poKcy, it is so de- 3. Hough v. Texas & P. R. Co., dared not in the interest of either 100 U. S. 213, 25 L. Ed. 612. of the parties, but in the interest of ■^ 55 Contracts Limiting Mastee's Liability. 175 view with the better reason. This peculiar question was determined in England under their Employer's Liabihty Act of 1886, and it was held that the servant may by express contract preclude himself from taking advantage of the provisions of the act, and may also by such contract preclude his widow from claiming such benefits in ease of his death. It was said by the judge dehvering the opinion: "I think the coiu-t should take a broad view of the con- struction of the law, having regard to the intent of the legislature. I do not think the words of the act go far enough to compel the construction that the express con- tract by a workman against the operation of the act should not take effect. In aU cases referred to in argument, where the legislature has intended to enact that a party shall not be allowed to contract himself out of an act of parliament, very express words have been used. As a general rule entire freedom of contract has been pre- served; it has only been interfered with in order to obviate great pubhc injustice. It is legitimate to see what would be the consequences if the construction contended for by plaintiff's coimsel prevailed, because if injustice would result it is unhkely that the legislature intended that construction. I think great injustice would result, be- cause the workman might obtain the benefit of the con- tract for years in the form of higher wages to cover the risk of injury, and then claim additional compensation when he was injured." * It seems that the Arkansas court is in accord with the views which have been stated.^ 4. Griffith V. Earl of Dudley, for any injury or damage he might L. R. 9 Q. B. Div. 357. sustain in his person or otherwise, 5. A servant, having been em- by accidents or coUisions on the ployed at his request by the defend- trains or road, or which might result ant railroad company in the capac- from defective machinery or care- ity of brakeman, agreed with said lessness or misconduct of himself or railway, in consideration of such any other employee and servant emplo3mient, that he woidd take of the company. It was said by the upon himself aU risks incident to court that a common carrier could his position on the road, and would not pre-contract with its customers in no case hold the company liable so as to relieve itself from Kability 176 Mastbe and Servant. §55 The Georgia court holds that a written contract entered into by an employee at the time he was employed, whereby he took upon himself the risks incident to his employment, and agreed that he would in no case hold the company responsible for any damage he might sustain by accident or collisions, or which might result from the neghgence or carelessness or misconduct of himself or other employees, was, in so far as it did not waive any criminal neglect of the company or its principal officers, a legal contract and binding upon the employee.* for its own negligent acts, but that the contract in question was not affected by the same considera- tions, that is, on the grounds of public employment, as the relation existing between the parties was essentially a private relation, namely, that of master and servant. The negligence of a fellow-servant is not in fact and in morals the negligence of the master; hence a stipulation to be answerable for their negligence beyond the selec- tion of competent servants in the first instance, and the discharge of such as prove to be reckless or incompetent, might be held as reasonable, notwithstanding a stat- ute might abolish the old rule of non-liability for the acts and omis- sions of a co-servant. It is an ele- mentary principle in the law of contracts, that "modus et con- ventio vincent legem" — the form of agp-eement and the convention of parties override the law. The court, however, rested their deci- sion of the case on the ground of public policy, that as it is the duty of employers to furnish reasonably safe appHanoes and places to work for their servants' use, and this duty is of public interest, they can- not by contract absolve themselves from liability for its performance to relieve themselves from liability for the consequences of their neglect in those respects by a contract in advance. Little Rock & Ft. S. R. Co. V. Eubanks, 48 Ark. 460, 3 S. W. 808, 3 Am. St. Rep. 245. It will be noted that the determina- tion was as to appliances and place of work. Yet in this respect the court did not state fully the com- mon law of that state upon the sub- ject. It is the common law in that state, as in the great majority of the states, that the master's duty is not absolute as to the furnishing reasonably safe appliances and safe place for work, but relative, and such common law doctrine has never been held to be against pubUo interest. 6. Western & Atlantic R. Co. v. Bishop, 50 Ga. 465; Western & Atlantic R. Co. v. Strong, 52 Ga. 461; Galloway v. Western & A. R. Co., 57 Ga. 512; Cook v. Railway Co., 72 Ga. 48. The previous deci- sions of the Georgia coTirt are re- viewed in the latter case. The court declined to overrule them, but on the contrary afSrmed the same, so far as unmodified by the statute (sec. 4586, Code of 1876). The cases of Railway Co. v. Beattie, §55 Contracts Limiting Master's Liability. 177 It -was held by the Ohio court that the liability of rail- road companies for injuries caused to their servants by the carelessness of other employees who are placed in authority and control over them is founded upon con- siderations of public policy, and it is not competent for a raihoad company to stipulate with its employees at the time and as part of their contract of employment that such HabiUty shall not attach to it.^ 66 Ga. 438, 42 Am. Rep. 75, and Railway Co. v. Gann, 68 Ga. 350, are distinguished on the grounds that they relate to contracts, not between employer and employee, but between common carrier and consignor, and consequently do not overrule or in any way afifect the cases under review. It was held in a later case that the terms of the contract, "He further agrees that he will take upon himself all risks connected with or incident to the employment, and will in no case hold the company liable for any injury or damage to his person or otherwise he may sustain whUe thus employed, whether it arises from explosion or the machinery, or accident, or negUgence, or mis- conduct of himself or any other person employed by the company, or from any other cause," were in- tended by the parties to cover all negUgence, including that of thei employer in failing to keep the machinery in safe condition, and in omitting to have it properly in- spected to ascertain its condition. Fulton Bag & Cotton Mills v. Wilson, 89 Ga. 318, 15 S. E. 322. However, it was held that an express contract would bind the employee to the provisions of the rule stated, but he would not be 1 M. & S.—12 bound by it where no express con- tract was made. The court recog- nizes the right of the company to make all needful rules for the governing of its employees, and regulating the manner of perform- ing their duties, and declares that such rules, when known to the employee, or he has been fvu-nished with a book containing them, whether he knows them or not, are binding upon him. But where a rule requires an emp oyee to waive certain rights which are not connected with his duty as an employee, then it does not bind him, although he has knowledge of it, unless he has expressly agreed thereto. The fact that he kept the rules in his possession and remained in the service of the company would not bar his right to recover unless he expressly agreed to that par- ticular rule. Georgia Pac. R. Co. v. Dooley, 86 Ga. 294, 12 S. E. 923, 12 L. R. A. 342. And also that the fact that the employee is running over another railroad at the time of the injury does not relievo him from such agreement. Galloway V. Western & A. R. Co., 57 Ga. 512. 7. Railway Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467, 68 Am. Rep. 833. 178 Masteb and Servant. §55 This is in accord with the public policy of that state. In Indiana, the statute which annuls contracts releasing railroad companies from hability to their servants for injuries to the latter, is held constitutional.^ In Alabama, the right of the master to immunity from liability by contract is denied.* 8. Pittsburg, C. C. & St. L. R. Co. V. Hosea, 152 Ind. 412, 53 N. E. 419. 9. A rule of tie defendant com- pany provided in substance that tbe conditions of the employment by the company are that the regular compensation paid for the services of the employees shall cover aU risks incurred and liability to acci- dent or other cause. The right to claim compensation for injuries ■will not be recognized. It was held that a rule which imposes upon an employee to look after and be responsible for his own safety con- travenes the law itself which fixes the liability of raiboad companies for negligence causing injury or death to their employees. Rieh- m nd & D. R. Co. v. Jones, 92 Ala. 218, 9 So. 276. A rule of the defendant company provided that all persons entering or remaining in the service of the company are warned that, in accepting or retain- ing employment, they must assume the ordinary risks attending it. Each employee is expected and required to look after and be respon- sible for his own safety, as well as to exercise the utmost caution to avoid injury to his fellows, espe- cially in the switching of cars and in all movements of trains. It was held that railroads, hke other cor- porations, and persons, have the right to adopt reasonable rules and regulations for the government of their employees, and for thei own protection; but they cannot stipu- late for immunity from liability for their own wrongful negUgence. A rule which imposes upon an em- ployee to look after and be re- sponsible for his own safety con- travenes the law itself, which fixes the liability of railroads for negli- gence causing injury or death to their employees. Louisville & N. R. Co. V. Orr, 91 Ala. 548, 8 So. 360. The Alabama Code (sec. 2590, subd. 5) makes an employer liable to an employee for personal injuries resulting from the negU- gence of any person in the employ- er's service, who has charge of or control of any car, engine or train upon a railway, or any part of the track of a railway. A rule of the defendant company provided that the regular compensation paid for the services of an employee shall cover all risks incmred and liability to accident from any cause what- ever. If an employee is disabled by accident or other cause, the right to claim compensation for injuries win not be recognized. It was held that such a rule or stipulation, be- ing in contravention of the statu- tory provisions, is opposed to public policy, and does not avail to secure non-liability for an injury caused to an employee by defendant's own negligence or misconduct in the cases specified in the statute. Hissong V. Richmond & D. R. Co., 91 Ala. 514, 8 So. 776. § 55 CoNTEACTs Limiting Master's Liabilitt. 179 It will be noted in the Alabama case last set forth in the preceding note that the rule the court had under con- sideration was one exempting the master absolutely for all neghgence either personal or that of his servants, and it may well be that such a rule when considered as such, or even as a contract, is against pubhc poUcy. But such is not the question under discussion. It is whether those contracts, express or imphed, which were based upon public policy, such as the assumption of the risks of negli- gence of fellow-servants, can be declared void at common law or under a particular statute which prohibits them. The first two Alabama cases do not reach this question, but the latter does to some extent as to the latter proposi- tion. It may have only the force and effect of determining that it is within the legislative power to declare who are feUow-servants, and change the common law in this re- spect, or to impose additional personal duties upon the master, but even this, carried to a logical conclusion, would imply the power to abolish the doctrine of fellow- servant altogether, and thus as a result prohibit the mak- ing of contracts Hmiting Uabihty upon the ground that the master may not contract against his own neghgence. The Iowa court has upheld the provisions of this statute.^" 10. Wlere the question before 1862; sec. 1, ch. 121, Laws of 1870; the court was as to the eflect of the Code, see. 1307) reads as follows; provisions of a contract, waiving viz. "Every railroad company claims for damages by a passenger shall be hable for all damages sus- riding upon a pass, upon a raUroad tained by any person, including company, it being held that such employees of the company, in eon- contract was not a defense against sequence of any neglect of the the negligence of the defendant, agents, or by mismanagement of whereby injury was caused to such the engineers or other employees passenger, it was said that the of the corporation, to any person lang:uage of the statute is so broad sustaining such damage, all con- that it includes any and all persons, tracts to the contrary notwith- employees as weU as others, who standing." Rose v. Des Moines may be injured in consequence of Valley R. Co., 39 Iowa, 246. See the negligence of the agents or also Mumford v. Chicago, R. I. & servants of the railroad company, P. R. Co., 128 Iowa 685, 104 N. or persons operating the same. The W. 1135. statute (sec. 7, eh. 169, Laws of 180 Masteb and Seevant. § 55 The Kansas court upholds this statute. Thus it was said that a raikoad company cannot contract in advance, "with its employees, for the waiver and release of the statutory liability imposed upon every railroad company organized or doing business in the state of Kansas by chapter 93, Laws of 18"^4; and that a contract in contra- vention of this statute is void, and no defense to an action brougbt by an employee of a railroad company for dam- ages in consequence of the negligence or mismanagement of the company." The Massachusetts court, by force of the statute, hold that a contract creating the exemption from Uabihty for injuries caused to a servant by the master's negligence, during the employment, is in violation of Rev. Laws, ch. 106, sec. 16 and is unenforceable.^'' In practically aU the other states such contracts have also been held invalid.^' The Wisconsin court, however, is in fidl accord with the views expressed by the writer. Thus it is said: "The general rule is that where unusual dangers are known to the employee, and he voluntarily assumes them, if he is thereby injured, he cannot recover, on accoimt of his con- tributory fault, even if the master at the same time, is guilty of neghgence, without such assumption of risk would have rendered him hable. This rule is based on the theory that when a person engages in the employment of another, he is supposed to do so in view of the usual 11. Kansas Pac. R. Co. v. v. Lundak, 196 111. 594, 62 N. E. Peavey, 29 Kan. 169, 44 Am. Rep. 1079; D. H. Davis Coal Co. v. 630. Under the general stat. 1901, PoEand, 158 Ind. 607, 62 N. E. seo. 5858, a contract entered into 492, 92 Am. St. Rep. 319; Blanton by a railroad company exempting v. Dold, 109 Mo. 64, 18 S. W. the company from aH liability for 1149; Curtis v. McNair, 173 Mo. damages by negligence, was held to 270, 73 S. W. 167; Johnston v. be against public policy. Atchison, Fargo, 184 N. Y. 379, 77 N. E. 388, T. & 8. F. R. Co. V. Front, 74 7 L. R. A. (N. S.) 537; Coley v. Kan. 519, 87 Pac. 698. North Carolina R. Co., 129 N. C. 12. Wagner v. Boston Elevated 407, 40 8. E. 195, 57 L. R. A. 817; R. Co., 188 Mass. 437, 74 N. E. TarbeU v. Rutland R. Co., 73 Vt. 919. 347, 51 Atl. 6, 56 L. R. A. 656, 87 13. See Consolidated Coal Co. Am. St. Rep. 734. § 50 CONTTRACTS LIMITING MASTBB.-'s LIABILITY. 181 risks incident to the business, and also all the unusual haz- ards attending such business, as conducted by the master, if such hazards are known to him. This, as said in effect by a very learned author, eminent as such and as a judge of one of the highest courts, is only a part of the contract which pubUc poUcy permits master and servant to make inasmuch as an opposite doctrine would not only subject employers to unreasonable and often ruinous responsi- bihties, thereby embarrassing aU branches of business, but would be an encouragement to the servant to omit that diligence for his own safety which is a far higher security than any recovery against the master for damages could afford. 1* Public policy extends further than mere consideration for the servants' own safety. It extends to the general public in case of the operation of railroads. A servant, in exercising care for his own safety, is at the same time, in many cases, acting for the protection of passengers riding upon trains, who have a right to demand, and pubUc poUcy thus demands, that no restrictions be placed upon railroad companies which prevents them from exacting from their employees proper care for the protection of their patrons, or which operates as an induce- ment to servants to relax that diligence which is so essen- tial to the safety of the travehng pubUc. § 56. Contract between sleeping car company and porter. The Illinois court held that a contract between a sleep- ing car porter and the sleeping car company, releasing the railroad company over the line of which the sleeping cars were operated, from habOity for personal injmy to him while traveUng over such lines, was a complete defense in an action brought against one such railroad company, without regard to whether the negUgence of the railroad company was gross or shght. That such contract was not against public pohcy." 14. Powell V. AsMand Iron & v. Hamler, 215 111. 525, 74 N. E. Steel Co., 98 Wis. 35, 73 N. W. 573. 705, 1 L. R. A. (N. S.) 674, 106 15. Chicago, R. I. & P. R. Co. Am. St. Rep. 187. 182 Master and Servant. §§ 57, 58 The mere fact that a Pullman car porter failed to read the contract is not, in the absence of fraud or misrepresen- tation, sufficient to avoid its effect." § 57. Contract between principal and contractor. Where the defendant railroad company contracted with a firm of contractors to remove a certain granite bluff, and among other things it was stipulated by the company that it should in no way be held responsible for any injury to, or the death of, any of the members of the said firm, or any of its agents and employees, sustained from said work, should such injury or death occur from any cause whatsoever, and one of the members of the said firm was killed through the alleged negligence of the defend- ant, and the stipulation was urged as a defense, it was said that to uphold the stipulation in question would be to hold that it was competent for one party to put the other party to the contract at the mercy of its own mis- conduct, which can never lawfully be done where an en- hghtened system of jurisprudence prevails; that pubhc pohcy forbid it, and contracts against pubhc pohcy are void; that nothing is better settled than that a common carrier cannot, by contract, exempt himseK from responsi- bility for his own or his servant's neghgence in the carry- ing of goods or passengers for hire; and that the principle is not confined to the contracts of carriers as such; but apphes imiversally." It will be noted that here the contract was not between employer and employee, and further, that the question involved was the principal's own neghgence, and was hkened unto that of a carrier of passengers. § 58. Contracts embracing risks not assumed as based on consideration. Where it is sought to include in such contract risks not impUedly assumed in the contract of employment, the 16. New York Cent. & H. R. R. mond & D. R. Co., 86 Va. 975, 11 Co. V. Difendaffer, 62 C. C. A. 1, S. E. 829; See also Olson v. 125 Fed. 893. Nebraska Tel. Co., 83 Neb. 735, 17. Johnson's Adm'x v. Rich- 120 N. W. 421. § 59 CoNTEACTs Limiting Mastee's Liability. 183 additional risks must be based upon an adequate con- sideration. "Where such, contract is executed while the servant is in the defendant's employ, and there is no new consideration or provision to continue the servant in the employment, the contract is void for lack of con- sideration.^^ § 59. Insurance contracts ; relief fund department. The validity and effect of the contract or agreement which employees make upon becoming members of a rehef association organized by railway companies, which is in substance that if disabled through fault of the rail- road company the company is released from liabihty for damages, on the employee accepting benefits, has been passed upon by courts in many cases. Such contracts, however, have not been precisely the same in their provisions* and the determination of the courts has been to some extent with reference to particular pro- visions. Such agreements, varying somewhat in phrase- ology, but in -effect the same,, have been held vaUd,^' 18. Purdy v. Rome, W. & O. 866. Where the condition is that R. Co., 125 N. T. 209, 26 N. E. 255, the acceptance by the employee of 21 Am. St. Rep. 736. relief from the reUef fund, shall 19. Petty V. Brunswick & W. have the effect to release the com- R. Co., 109 Ga. 666, 35 S. E. 82; pany from liability for damages, Eekman v. Chicago, B. & Q. R. Co., such an agreement is vaHd and 169 111. 312, 48 N. E. 496, 38 L. R. binding. The execution of the con- A. 750; Oyster v. Burlington ReKef tract does not have that effect. Dept. of C. B. & Q. R. Co., 65 Neb. It is the acceptance of the benefits 789, 91 N. W. 699, 59 L. R. A. 291. which precludes recovery of dam- See also Carter v. Brunswick & ages in case of injury from the com- W. R. Co., 115 Ga. 853, 42 S. E. pany. Pittsburg, C, C. & St. L. 239. Where the agreement was R. Co. v. Cox, 55 Ohio St. 497, that if disabled through fault of 45 N. E. 641, 35 L. R. A. 507; the railroad company, the employee CHnton v. Chicago, B. & Q. R. Co., might elect whether to accept the 60 Neb. 692, 84 N. W. 90; Chicago benefits from the association or B. & Q. R. Co. v. Curtis, 51 Neb. pursue his remedy against the com- 44?, 71 N. W. 42, 66 Am. St. Rep. pany, it was held, that by accept- 456; Johnson v. Railway Co., 163 ing such benefits, the company was Pa. St. 127, 29 Atl. 854; Atlantic released from a claim for damages. Coast Line R. Co. v. Dunning, Pittsburg, C, C. & St. L. R. Co. v. 94 C. C. A. 128, 166 Fed. 850; Elwood, 25 Ind. App. 671, 58 N. E. Pennsylvania Co. v. Chapman, 220 184 Master and Seevant. §59 not against public policy, ^ and not in violation of statutes m. 428, 77 N. E. 248; FuUer v. B. & 0. B. R. Assn., 67 Md. 433, 10 Atl. 237. It is immaterial that employee is required by company to become a member of the relief department. Johnson v. Charles- ton & S. R. Co., 55 S. C. 152, 32 S. B. 2, 33 S. B. 174, 44 L. R. A. 645. Where an employee of a railroad company becomes a mem- ber of a relief association, and, as a condition of membership, and in consideration of the contributions of the railway company to said association, and of the company's guarantee of the payment of the benefits of the association in case of injury, signs a contract by which he releases the company from liability by reason of an accident that may happen to Tn'm while in the company's employ, an action will not lie against the company where, both before and after bring- ing the action, he received money from the association on account of the injury, and gave a receipt releasing and discharging the com- pany from aU claims for damages. Martin v. Baltimore & 0. R. Co., 41 Fed. 125. It was first held in a federal case that a railroad company having organized a relief depart- ment sustained by contributions from employees, the company agreeing to make up any deficiency, a deficiency rarely occurring, a clause in the application for mem- bership to the effect that in con- sideration of payments by the com- pany the acceptance of benefits by a member should operate as a release of aU claims for damages against the company, does not preclude an employee from his right of action for injuries sustained in the service and for which the master otherwise is liable. The court emphatically declared that it differed from those courts which held to a contrary view, naming Peimsylvania and Indiana courts. MiUer V. Chicago, B. & Q. R. Co., 65 Fed. 305. It was subsequently held, however, that such contracts are valid, but they must be fair and reasonable, and not against public poUcy and supported by a valuable consideration. Chicago, B. & Q. R. Co. V. MiUer, 22 C. C. A. 264, 76 Fed. 439. 20. Hamilton v. St. Louis, K. & N. W. R. Co., 118 Fed. 92; Bck- man v. Chicago, B. & Q. R. Co., 169 III. 312, 48 N. E. 496, 38 L. R. A. 750; Pittsburg, C, C. & St. L. R. Co. V. Moore, 152 Ind. 345, 53 N. E. 290, 44 L. R. A. 638; Maine V. Chicago, B. & Q. R. Co., 109 Iowa 260, 70 N. W. 630, 80 N. W. 315; Chicago, B. & Q. R. Co. v. Curtis, 51 Neb. 442, 71 N. W. 42, 66 Am. St. Rep. 456; Beck v. Pennsylvania R. Co., 63 N. J. L. 232, 43 Atl. 908, 76 Am. St. Rep. 211; Pittsburg, C, C. & St. L. R. Co. V. Cox, 65 Ohio St. 497, 45 N. B. 641, 35 L. R. A. 507. The membership of railroad servants in a relief fund association being vol- untary, the stipulation in the appU- cation for membership, that accept- ance of benefits for an injury shall release all claims for damages against the raUroad company, is not invalid as an attempt on the part of the railroad company to contract against its liabilities for negligence, nor because it may enable the railroad company to §59 CoNTBACTs Limiting Master's Liability. 185 forbidding agreements limiting the liability of the master for injm-ies to Ms employee.^* So such agreements are not void on account of lack of mutuahty," nor. because they undertake to bind persons not parties thereto. ^^ Effect of failure of master to comply with agreement. Where, however, the company fails to fully comply with its agreement, it was held the employee is entitled to maintain his action against it for damages for his injuries.** settle some claims for leas than it otherwise could. There is no rule of pubUo policy which condemns such an arrangement. Such an agreement is not bad for want of mutuality, where the railroad com- pany is a mem^ber of the associa- tion and a party to the contract by which the employee becomes a member, and where such company is in charge of the association, guarantees the obligation, pays the expenses, makes up deficiencies, if any, and suppUes medical and surgical attendance for the mem- bers. Lease v. Pennsylvania Co., 10 Ind. App. 47, 37 N. E. 423. Where railroad companies had charge of a relief association, of which such companies and their employees were members, such companies gruaranteeing the obli- gations, supplying the facilities for doing the business and making up the deficits, if any, in the funds, it was held that an employee who voluntarily, in his application, signed an agreement that an accept- ance of benefits from the associa- tion for an injury should release the company from any claim for dam- ages therefor, could not be heard to claim that such release was in- valid as against pubUo poUcy. Such an agreement contains no stipulation that the plaintiff shall not be at liberty to bring an action for damages. This right remains as before. By the contract he was given his election either to receive the benefits or to waive them and pursue his remedy at law. Having accepted the benefits, he was pre- cluded from maintaining an action against the company. Otis v. Pennsylvania Co., 71 Fed. 136. 21. Petty V. Brunswick & W. R. Co., 109 Ga. 666, 35 S. E. 82; Pittsburg, C, C. & St. L. R. Co. V. Moore, 152 Ind. 345, 53 N. E. 290, 44 L. R. A. 638 [overruling Pittsburg, C, C. & St. L. R. Co. v. Montgomery, 162 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 300]; Pittsburg, C, C. & St. L. R. Co. V. Cox, 55 Ohio St. 497, 45 N. E. 641, 35 L. R. A. 507; Hamilton v. St. Louis, K. & N. W. R. Co., 118 Fed. 92. 22. Petty v. Brunswick & W. R. Co., 109 Ga. 666, 35 S. E. 82. 23. Baltimore & 0. R. Co. v. Ray, 36 Ind. App. 430, 73 N. E. 942. 24. Pennsylvania Co. v. Chap- man, 220 m. 428, 77 N. E. 248. 186 Mastee and Seevant. § 59 However, where a member of a railroad benefit asso- ciation had received its benefits when injured and executed a release of claims against the company, and thereafter in a suit brought by him alleged by a replication that the railroad company had not comphed with all the provisions which were the inducement of membership, it was held that his pleading was demurrable; that it did not seek to avoid the release on the ground of fraud; that he had received the stipulated beuiefits the same as though the inducements had existed. ^^ Knowledge of agreement on part of employee. Such an employee cannot avoid the effect of his agree- ment on the ground that he signed the agreement without reading it or understanding its purport, and that he was at a disadvantage in deahng with the company. The fact that at the time of receiving benefits from the association he was not advised of the strength of his case, nor of cer- tain important facts and the witnesses to prove them, will not avoid the effect of his election. ^^ Where beneficiary named not person entitled to damages for death. Where the beneficiaries named are not the persons en- titled to recover damages in case of death, it has been held that acceptance of the benefits provided will not preclude the persons so entitled from maintaining an action against the company to recover damages nor by the administra- tion to recover the same for their benefit. Thus, accept- ance of benefits by the widow, the beneficiaiy, from a voluntary rehef association maintained by a railroad company, under a provision in its certificate that it should be a release from habihty for injuries to an employee, does not bar a recovery for the wrongful death of the husband, for the use of his child. ^' 25. Spitze V. Baltimore & O. R. Fivey v. Pennsylvania R. Co., 67 Co., 75 Md. 162, 23 Atl. 307, N. J. L. 627, 52 Atl. 472, 91 Am. 32 Am. St. Rep. 378. St. Rep. 445. 26. Vickers v. Chicago, B. & 27. Pittsburg, C, C. & St. L. Q. R. Co., 71 Fed. 139. See also R. Co. v. Moore, 152 Ind. 345, §59 CoNTBACTS Limiting Master's Liability. 187 53 N. E. 290, 44 L. R. A. 638; Pittsburg, C, C. & St. L. R. Co. v. Hosea, 152 Ind. 412, 53 N. E. 419. A railroad company had comiected with it a relief department com- posed of employees who contributed certain amounts from their wages towards an insurance fund for their relief when injured, and for relief of beneficiaries named in case of death. The railroad company collected the funds, furnished the necessary clerical force, and guar- anteed payments of loss. A mem- ber of this association agreed that, in consideration of the amounts paid by the company, the accept- ance of benefits paid for injury or death should operate as a release of all claims for damages against the company arising from such in- iury or death which could be made by him or his legal representatives. He was killed in an accident upon the railroad. The beneficiary named was his widow, who ac- cepted the benefits, and by an instrument in writing received it in full satisfaction and discharge of aU claims or demands on account of or arising from the death of the deceased which she then bad, or could thereafter have, against either the reHef fund or the railroad company on behalf of herself and her children. It was held that the contract of the deceased did not waive a right of action by the ad- ministrator under the statute pro- viding that "whenever the death of a person shall be caused by wrongful act, negligence or default, and the act, negligence or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, then the person who would be so liable shall be liable notwithstanding the death;", that this contract was not a com- promise or a satisfaction; that neither the contract nor the accept- ance of the money, or release of liability by the widow, operated to bar a right of action, by the administratrix on behalf of the children; that her voluntary accept- ance of the benefit and release of the company operated to bar any action for her own benefit. Chicago, B. & Q. R. Co. V. Wymore, 40 Neb. 645, 58 N. W. 1120. A pro- vision of the constitution of a rail- road relief association "that before the association will pay the bene- ficiary of the member killed the amount of benefits due, the person legally entitled to damages for the death shall release the raih-oad company from all claims for dam- ages," was held not to be so unrea- sonable as to be void; and where the mother of the deceased member was designated as beneficiary and, upon his death, his wife and minor child, who were the persons legally entitled to damages, did not release the company, but brought suit and recovered damages by a compro- mise, it was held that the mother had no right of action against the relief association for the benefits. The railroad company, by the pro- visions of the constitution, was not released, but if suit was brought against it there could be no claim against the rehef association for benefits. Fuller v. Baltimore & 0. E. R. Assn., 67 Md. 433, 10 Atl. 237. See also Graft v. Baltimore & 0. R. Co.. 8 Atl. (Pa. St.) 206i 188 Masteb and Servant. §§60, 61 CHAPTER VII. CONTRACTS RELEASING CLAIMS. Sec. Sec. 60. In general. 61. Consideration. 62. Validity. Ignorance of contents. 63. Fraud. Reality of assent. 64. Mutual mistake. Settlement in absence of counsel. Whether avoidable in action for damages. Return of consideration paid. Mistake and oral testimony. 65. Burden of proof. § 6o. In general. The validity, construction and effect of releases of claims for personal injuries have been before the courts many times, and the rules regulating releases of claims in general, which are for the most part applicable, will not be reiterated in this connection, except in so far as particularly or peculiarly applicable to claims for personal injuries.^ § 6i. Consideration. A release of a claim for damages for personal injuries must be based on a valuable consideration, imless under 1. A release for settlement of claim for certain personal injuries specified in the release, "and also of and from all manner of actions, causes of action, claims and de- mands from the beginning of the world to this day," was held not to cover personal injuries not therein specified, and not known to exist at the time the release was executed. Since the general terms in the release were Umited by pre- ceding specifications, the rule is that, where there is a particular recital, followed by general words, the latter are qualified by the par- ticular recital. Union Pac. R. Co. V. Artist, 9 C. C. A. 14, 60 Fed. 365, 23 L. R. A. 581. Release of claim by parents for death of their son killed while employed by a railroad company, who were sole heirs, the son having i no debts, precludes recovery by an adminis- trator subsequently appointed. Christie v. Chicago, R. I. & P. R. Co., 104 Iowa, 707, 74 N. W. 697. §61 CONTEACTS EeLBASIKG ClAIMS. 189 seal in those states where the common law efficacy of seals has not been abolished.^ A promise tore-employ the injured servant is a sufficient consideration for a release.' However, in some jm-isdictions an agreement to re- employ for such time as the employee may be "satisfac- tory" to the employer is held too vague and indefinite to constitute a consideration, * especially where the releasor 2. Where a release was duly executed under seal, in a state whicli makes a seal presumptive evidence of consideration, and it appeared that no consideration was in fact paid or employment given, it was held that it is proper to dis- regard such release. Wabash West- ern R. Co. V. Brow, 13 C. C. A. 222, 65 Fed. 941. 3. Hobbs V. Brush Electric Light Co., 75 Mich. 550, 42 N. W. 965; Quebec v. Gulf, C. &S. F. R. Co., 98 Tex. 6, 81 S. W. 20, 66 L. R. A. 734. Reasonableness of contract, see Usher v. New York Cent. & H. R. R. Co., 179 N. Y. 544, 71 N. E. 1141 [afSrming 76 App. Div. 422, 78 N. Y. Supp. 508]. An employee brought an action against the employer to recover for the breach of an alleged contract by the terms of which the defendant was to pay him the sum of $100 and to furnish hiTn permanent em- ployment, and as a part considera- tion he executed a written release discharging the employer from all liability on account of injury received through the alleged negli- gence of the latter. It was held (1) that the action was of contract and not of tort; (2) that the parol promise to re-employ the plaintiff was a sufficient consideration for the release; (3) that the agreement imposed upon the defendant the duty of employing plaintiff as long as he was able, ready and wiUing to perform such service as it may have for biTn to perform, and there- fore was not void for uncertainty; (4) that the contract was not void as against public pohey; (5) that it was not void for want of mutuality; (6) that the fact that the agreement was verbal did not make it void under the provisions of the statute of frauds relating to agreements not to be performed within one year, as such provisions do not apply to con- tracts for personal services, which may terminate with the death of the party; (7) that the fact that the "written release recites the con- sideration as f 100 does not prevent it being shown that the oral agree- ment to furnish employment also formed a part of the consideration, it being merely collateral to the release. Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. Rep. 289. A division superintendent of a railroad has no implied authority to bind the com- pany by an agreement to give life employment to an employee in settlement of a claim for personal injuries. Maxson v. Michigan Cent. R. Co., 117 Mich. 218, 75 N. W. 459. 4. Gulf, C. & S. F. R. Co. V. Winton, 7 Tex. Civ. App. 57, 26 S. W. 770; Missouri, K. & T. R. Co. 190 Master and Servant. § 62 was, at the time the release was given, in the employ of the releasee.^ And the consideration fails where the employee is at once discharged on a fictitious charge, after resuming his labors." § 62. Validity. Contracts between the master and his servant, where- by the servant accepts a stipulated sum or other valuable consideration, as compensation for the injury, and thereby releases the former from aU claim for damages, are, in general, valid and binding upon the servant. Such contracts may, however, be impeached for fraud or mis- representation on the part of the employer in procuring them from the servant and, as will be observed, it has been held in some cases that if a servant did not fully understand the contents of a contract of release at the time he signed the same, upon that fact being satisfactorily established, he will not be bound by its terms. It cannot, however, upon principle, be said that any other or differ- ent rule should be appUed in determining the validity of such contracts, or the capacity of the contracting par- ties, than is applicable to ordinary contracts. Mental incapacity on the part of one of the contracting parties to a contract may always be urged against its enforce- ment without regard to the particular cause that may have induced it. Contracts, however, should not be evaded upon the mere pretext that the party seeking to avoid its provisions did not understand them, especially when the language is plain, certain and expressive; otherwise such contracts, either as agreements or as evidence thereof, may become valueless or of no import other than as throwing the burden of proof on the oppo- of Texas v. Smith, 98 Tex. 47, 81 5. Potter v. Detroit, G. H. S. W. 22, 66 L. R. A. 741, 107 Am. & M. R. Co., 122 Mieh. 179, 81 St. Rep. 607; Gulf, C. & S. F. R. N. W. 80, 82 N. W. 245. Co. V. Minter, 38 Tex. Civ. App. 6. Illinois Cent. R. Co. v. 8, 85 S. W. 477. Contra, Forbs Keebler, 27 Ky. L. R. 305, 84 S. W. V. St. Louis, I. M. & S. R. Co., 107 1167. Mo. App. 661, 82 S. W. 562. §62 CONTEACTS EeLBASING ClAIMS. 191 site party. The door for the commission of perjury- would thus be thrown open, and the giulty party being secure from punishment by the very nature of the trans- action, it would seem that justice and reason alike de- mand, at least, that the party asking release from his agreement should present some convincing cause not in law attributable to his own neglect, but produced by the conduct of the other party, amounting to an imposition upon his rights by means of which he was induced to sign and execute the agreements, before he should be permitted to impeach or avoid it. Any other rule would render unavailable contracts of compromise.'' Ignorance of contents. The general ride is that the employee cannot avoid his release by showing that he was ignorant of its contents because he could not, or did not, read its contents, or hear it read, in the absence of fraud,* except where his 7. The ease of AlbrecM v. Mil- waukee & S. Ry. Co., 87 Wis. 105, 58 N. W. 72, 41 Am. St. Rep. 30, fully sustains the views stated, and explains, if it does not qualify, what was said by the same court in earlier cases. (Shultz v. Chicago & N. W. R. Co., 44 Wis. 638; Butler v. Regents, 32 Wis. 124). It was there said with reference to an instruction of the circuit court that an employee might avoid the pro- visions of a release by merely show- ing that at the time he signed it he did not know its contents or effect "that written instruments regu- larly executed and delivered cannot be thus dealt with and avoided, and their operation defeated." The following statement in the opinion of the supreme court of the United States (Upton v. Tribil- eock, 91 U. S. 45, 23 L. Ed. 203) was approved, to wit: ."It cannot be tolerated that a man shall execute a written instrument and when called upon to abide by its terms say merely that he did not read it or know what it contained." 8. Jossey v. Georgia, S. & F. R. Co., 109 Ga. 439, 34 S. E. 664; Atchison, I. & S. E. R. Co. v. Vanordstrand, 67 Kan. 386, 73 Pao. 113; Spitze v. Baltimore & O. R. Co., 75 Md. 162, 23 Atl. 307, 32 Am. St. Rep. 378; Chicago, R. I. & T. R. Co. V. Williams, 37 Tex. Civ. App. 198, 83 8. W. 248. The doctrine of the Wisconsin court is, and such is the rule gener- ally prevaihng elsewhere, although there are exceptions, that the employee or party as the case may be, may avoid the terms of his contract if it was executed through his excusable mistake or ignorance, the burden of proof being upon him to rebut the presumption of gross negligence. Mere neglect on his part to read the contract, in the 192 Master and Sbbvant. §62 failure or inability to read or know tlie contents absence of fraud, misrepresentation or undue influence on the part of the other party, is not such negli- gence as may be excused. Neither is his inability to read English, or understand the contents of the paper, an excuse. He could and should, say the court, "seek the assistance of some one capable of properly informing him. Not to do BO is gross negligence." Albrecht V. Milwaukee & S. R. Co., 87 Wis. 105, 58 N. W. 72, 41 Am. St. Rep. 30; FuUer v. Insurance Co., 36 Wis. 599; Sanger v. Dun, 47 Wis. 615, 3 N. W. 388, 32 Am. Rep. 789; Shenon v. Insurance Co., 83 Wis. 507, 63 N. W. 878. The supreme court of Iowa entertains the same view, to the extent that "where a party had the capacity to read the release signed by him and had an opportunity to do so, and no fraud was practiced upon him to prevent him from reading it, but he chose to rely upon what another said about it, he is estopped by his own negUgence from claiming that it is not legal and binding upon him according to its terms.", Wallace V. Railway Co., 67 Iowa, 547, 26 N. W. 772; Bell v. Byerson, 11 Iowa, 233, 77 Am. Dec. 142; McCormack v. Malburg, 43 Iowa, 561 ; McKnney v. Herrick, 66 Iowa, 414, 23 N. W. 767. Where one neg- ligently signs a written contract, without taking the precaution to read it or have it read, he is bound by its terms, and the court can grant him no relief, if by such neg- ligence he is defrauded. Mc- Kinney v. Herrick, 66 Iowa, 414, 23 N. W. 767. He is estopped by his own negligence to ask reUef from his obligations, if his signature be secured without fraud or artifice. McCormack v. Molburg, 43 Iowa, 561; Bell v. Byerson, 11 Iowa, 233, 77 Am. Dec. 142. If no device is used to put a party off his guard, he having the capacity to read an instrument, and signs it without reading it, he places himself be- yond legal reKef. If the truth or falsehood of the representation might have been tested by ordinary vigilance and attention, it is the party's own folly if he neglected to do so, and he is remediless. Rogers V. Place, 29 Ind. 577; Nebeker v. Cutsinger, 48 Ind. 436. A release is not impeached merely because the releasor could not read or un- derstand its contents, since his signing in such a case raises the presumption of gross negligence, which he has the burden to dis- prove. Plaintiff testified that de- fendant's agents informed him while in bed that they had come to pay him four month's wages at $1.50 per day, and some doctor bUls. That he did not read the paper; that he could not read, and don't know whether they read it to him or not; that he did not un- derstand the contents of the paper; did not know it discharged the company from all UabiUty to pay him for his injuries and that if he had so known he would not have signed it. Afterwards he drew two month's wages which had not been paid, and which was no part of the $226 paid to him; that he was a German and did not understand the meaning of "Uability" or "dis- charge" or "consideration" or {.'em- ployer!; or I'employee,'! and those §62 CONTEACTS EeLEASING ClAIMS. 193 is due to Ms prostration or pain or suffering. words were not explained to Mm. The defendant's agents in sub- stance disputed this testimony of the plaintiff as to what was said, and testified that they read it over to him slowly, and figured with him as to about the time he would be probably laid up with his injuries. The court submitted the question as to whether he knew the contents of the paper when he signed it and that it was a settlement of the case, instructing the jury that if he did, he was bound by it; if not, then they must answer accordingly. It was said that the effect of the in- struction was that the plaintiff might avoid the effect of the release by merely showing that at the time he signed it he did not know its contents or effect. Written instruments regularly executed and delivered cannot be thus dealt with and avoided, and their operation defeated. There is no pretense that the plaintiff was induced to sign the release through fraud or mis- representation, or that any decep- tion was practiced by misreading it to him. His inability to read English and understand the con- tents of the paper is not an excuse. This was his own neghgence. He could and should have sought the assistance of some one capable of properly informing him. It cannot be tolerated that a man shall exe- cute a written instrument, and, when called upon to abide its terms, say merely that he did not read it or know what it contained. Albrecht v. Milwaukee & S. R. Co., 87 Wis. 105, 58 N. W. 72, 41 Am. St. Rep. 30 [citing Upton v. Tribil- oock, 91 U. S. 45, 23 L. Ed. 203.] 1 M. & S.— 13 But where an employee testified that he did not know the contents of the instrument he signed, which was in effect a release of all claims for damages in consideration of the sum of $32.50, and that he would not have signed it if he had known the nature of it, and that he supposed the money he received was to pay him for the time he was laid up with his wounds, and it appeared that the money was ten- dered to the defendant's attorneys after the answer was served, it was held that the evidence tended to prove that he signed the instru- ment without knowing its contents and without intending to sign such an instrument, and therefore was not bound by it. Schultz v. Chicago & N. W. R. Co., 44 Wis. 638. 9. Chesapeake & 0. R. Co. v. Howard, 14 App. Cas. (D. C.) 262 [affirmed in 178 U. S. 153, 44 L. Ed. 1015, 20 Sup. Ct. Rep. 880.] Where plaintiff's reply denied the execu- tion of the release, and alleged that when it was executed he was under the impression that it was a receipt for wages due him, and that he was unable to comprehend the purport of the release by reason of the bodily pain and mental anxiety he was then suffering in conse- quence of his injuries, it was held that, though there were no allega- tions of fraud, the reply showed matter sufficient to invahdate the alleged release. Bean v. Western N. C. R. Co., 107 N. C. 731, 12 S. E. 600. Where an employee exe- cuting a release of claims for dam- ages for personal injuries, was, at the time of the execution of such 194 Masteb and Servant. &62 Fraud. A release procured by the fraud of the master is not binding on the servant. '^'' Thus, if the employee is induced to sign the release ■without readiag it or having it read to him, by the fraudulent statements of the releasee, the release is not binding." contract, so mucli under the influ- ence of drugs and opiates, taken to alleviate his pains and sxifferings, as to be mentally incapacitated to contract, it was held that such a release was voidable and not a defense to his cause of action. Chicago, etc. R. Co. v. Doyle, 18 Kan. 58. Where the plaintifi was suffering from injuries received in a collision, an agent of the company procured him, in consideration of $50, to execute a release under seal of all claims against the defendant by reason of his property being de- stroyed at the time of the collision and also for personal injuries re- ceived at the time. The jury found that the subject of a release for per- sonal injuries was not talked of during their negotiations, and that neither the plaintiff nor the agent understood the release covered the claim for such injury. The value of the property destroyed exceeded $50. It was held that the courts would reheve against mistake as well as fraud. The further ques- tion was present, whether the ignor- ance of the plaintiff of the clause contained in the instrument "re- leasing all claims of personal in- jury" precluded him from avoiding it. It appeared that the plaintiff was sick in bed suffering from an injury. He was conscious and rational, and his recollection of events was clear, but the interview was quite brief, and it was said by the court: "It is a fair inference that the plaintiff was in no con- dition to read and fully compre- prehend the release." He was dizzy. It was said that under these circumstances the ignorance of the plaintiff of the contents of the release cannot be said to be the result of the want of such diligence on his part as to preclude him from the right to avoid it. Lusted v. Chicago & N. W. R. Co., 71 Wis. 391, 36 N. W. 857. The evidence was suf&cient to sustain a finding that a release of defendant's dam- ages signed by the father while prostrated with grief and sorrow over his son's death, obtained under such circumstances, con- stitutes a legal fraud upon his rights. Erickson v. Northwest Paper Co., 95 Minn. 356, 104 N. W. 291. 10. Rapid Transit R. Co. v. Smith, 98 Tex. 553, 86 S. W. 322 (promise to employ, no intention to perform). See also Hot Springs R. Co. V. McMillan, 76 Ark. 88, 88 S. W. 846; Atchison, T. & S. F. R. Co. V. Vanordstrand, 67 Kan. 386, 73 Pac. 113. 11. Meyer v. Haas, 126 Cal. 560, 58 Pac. 1042; Pioneer Cooper- age Co. V. Romanowicz, 186 lU. 9, 57 N. E. 864; BHss v. New York Cent. & H. R. R. Co., 160 Mass. 447, 36 N. E. 65, 39 Am. St. Rep. §62 CONTEACTS EeLEASING ClAIMS. 195 However, in some decisions, it is held that where the employee is able to read and understand the paper himself but neglects to do so and instead rehes on false 504; Sotus v. Powers-Simpson Co., 85 Minn. 447, 89 N. W. 68, 69 L. R. A. 887; Austin v. St. Louis Transit Co., 115 Mo. App. 146, 91 S. W. 450. See also Great North- ern R. Co. V. Kasischke, 43 C. C. A. 626, 104 Fed. 440; Gladish v. Pennsylvania Co., 46 C. C. A. 150, 107 Fed. 61. A party is required to exercise reasonable care in acquainting himself with the con- tents of a paper, and will not be allowed, in an action by or against him on a contract, to show simply that he was ignorant of its contents when he signed it, and that it was diflferent from what he supposed it was, and so avoid its effect. But this rule is subject to the condition that no fraud was practiced upon him for the pm-pose of procuring and which resulted in procuring his signature. It can hardly be said, as a matter of law, that a party is guilty of negligence who signs a paper relsang upon the representa^ tions as to its contents and effect made by the party presenting it and without himself examining it. Freedley v. French, 154 Mass. 339, 28 N. E. 272; Trambly v. Ricard, 130 Mass. 259; Jackson v. Olney, 140 Mass. 195, 4 N. E. 225. An agent of the defendant, after the plaintiff had received his injuries, the subject of the action, paid him $250, and persuaded him to sign a release discharging the defendant from any further liability. Only the plaintiff and his wife were present. Neither of them could write or read in the English lang- uage. The effect of their testimony was that such agent proposed to pay this sum as wages for four months. That they so understood it, and supposed that the paper was a receipt for wages. It was ad- mitted that the agent would testify that there was no misrepresenta- tion, and that the release was read and fuUy explained to the plaintiff. It was held that an issue of fraud was thus presented proper for the determination of the jury. Sobieski V. St. Paul & D. R. Co., 41 Minn. 169, 42 N. W. 863. An employee who had been injured in the service of the defendant company testified that he had agreed with the claim agent to receive $300 for his loss of time and towards getting an arti- ficial foot. The voucher which he signed was presented to him folded, so as to show only a receipt for the above account. He signed the receipt without reading the voucher relying upon the agent's repre- sentations that the settlement was only for time lost. There was testi- mony on the part of the defendant to the effect that there was a fuU settlement of all claims, and the paper was in effect a full release. It was held that the jury were justified in finding that the release was procured by fraud and was not binding. Mateer v. Missouri Pac. R. Co., 105 Mo. 320, 16 S. W. 839. The effect of the giving of a release by an employee who could not read or write, in the presence of his friend who also could not read or write, and who testify that 196 Master and Seevant. §62 statements as to its contents, by the agent of the employer, the release is valid. ^^ But a release -will not be set aside on the ground of fraud without the strongest proof. ^' tbe employer's agent represented to them at the time that it was an agreement to furnish a physician, was for the jury. Pioneer Cooper- age Co. V. Romanowiez, 186 111. 9, 57 N. B. 864. 12. See Bennett v. Himmelber- ger-Harrison Lumber Co., 116 Mo. App. 699, 94 S. W. 808. Where an employee, a conductor, had the capacity to read the release signed by him, and had an oppor- tunity to do so, and no fraud was practiced upon him to prevent him from reading it, but he chose to rely upon what another said about it, it was held that he was estopped by his own negligence from claiming that it was not legal and binding upon him according to its terms. To establish fraud the plaintiff testified in substance, that when he signed the papers they were not read over to him, that the agent stated to him that they were orders for his back pay, and that he had no knowledge of the contents of the papers. It was held that he was not excused under the circum- stances from reading the paper himself, and not to do so was negli- gence. Wallace v. Chicago, St. P. M. & 0. R. Co., 67 Iowa, 547, 25 N. W. 772. 13. A release for personal injuries win not be set aside on the ground of fraud and mistake, when it appears that the plaintiff, after his injuries, was kept in a hospital at defend- ant's expense for six months; that while there he signed the release, which three witnesses testify was read and explained to him, though he testified that he thought he was signing some hospital regulations, that the paper he signed was not the one read to him, and also that he never asked or knew who was paying the hospital expenses. Pe- derson v. Seattle ConsoKdated St. Ry. Co., 6 Wash. 202, 33 Pac. 351, 34 Pac. 665. See also Pennsylvania Co. V. Shay, 82 Pa. St. 198; Rose V. West Phil. R. Co., 12 Atl. (Pa. St.) 78. Where the release was executed upon the consideration that the railroad company would pay the funeral expenses of the plaintiff's son who had been killed, and the plaintiff afterwards brought a suit and claimed that he had not read the release, and that he under- stood that it was merely a receipt for the funeral expenses paid by the company, and it appeared by the testimony of defendant's agent that the release was read and ex- plained to the plaintiff, it was held that the ease should have been withdrawn from the jury. That it is error to submit a question of fraud to a jury to overturn a written instrument upon slight parol evi- dence. The evidence of fraud must be clear, precise and indubitable. Pennsylvania R. Co. v. Shay, 82 Pa. St. 198. Where the plaintiff testified that he did not know, when he signed a release of claim for per- sonal injiuies, what he was signing, — ^in other words, that misrepre- sentations were made to him, and that he did not know that he was giving up his rights to a certain por- §62 Contracts Eeleasing Claims. 197 The release caimot be set aside because of the mistaken opinion of the employer's doctor, relied on by the em- ployee, as to the nature and permanency of the injiuies;^^ nor where the statement of the doctor was not for the purpose of securing a release." But the dishonest opinion of a doctor of the employer as to the extent and perma- nency of the injuries, where the basis of a release and relied on as such by both employer and employee, is ground for disregarding or canceling the release." Reality of assent. In order to constitute a binding release, there must be, subject to the exceptions already stated, assent by both parties to the same agreement." tion of the claim, it vas held that an instruction was correct which stated that the release was not to be set aside upon any but the strongest and clearest testimony; that to infer fraud from anything but the strongest and most satis- factory proof is to infer a criminal thought and disposition in a man, which is against the presumption of law. Rose v. West Phil. R. Co., 12 Atl. (Pa. St.) 78. See also Parhn V. SmaU, 68 Me. 289; Gruber v. Baker, 20 Nev. 453, 23 Pac. 858. Where a plaintiff sought to avoid a release on the ground that it was not read to him; thatTie could not read English, and that he believed he was signing a receipt, and it appeared he did not request to have the paper read, nor did he ask what it was, nor mention that he could not read Enghsh, but signed it without knowing its contents, it was held that there was no evidence to show that the re- lease was obtained by fraud. Spitze V. Baltimore & O. R. Co., 75 Md. 162, 23 AU. 307, 32 Am. St. Rep. 378. 14. Atchison, T. & S. F. R. Co. V. Bennett, 63 Kan. 781, 66 Pac. 1018. 15. Quebe v. Gulf, C. & S. F. R. Co., 98 Tex. 6, 81 S. W. 20, 66 L. R. A. 734. See also Gulf, C. & S. F. R. Co. V. Huyett, 99 Tex. 630, 92 S. W. 454, 5 L. R. A. (N. S.) 669 [reversing 89 S. W. (Tex.) 1118]. 16. Lumley v. Wabash R. Co., 22 C. C. A. 60, 76 Fed. 66. And see Galveston, H. & S. A. R. Co. v. Code, 93 S. W. (Tex. Civ. App.) 124. 17. It was held that a release executed to the defendant by the plaintiff in consideration of its caring for him at the hospital until he sufficiently recovered to resume labor was not binding on him where it was shown that he could not read the instrument and that he did not read it when he signed it, but signed it at the request of his wife, who could not read, and, when it was read and explained to her by one of defendant's employees, understood it was simply a receipt. The court say: "It is a general rule that 198 Master and Servant. § 62 Mistake and oral testimony. Wliere a written paper acknowledging the receipt of a sum of money contains an agreement that the money is received in full payment of all demands for damages sus- tained, it cannot be varied or controlled by evidence of an oral agreement made contemporaneously with it and in- consistent with its terms. It was accordingly held, where such a release was executed, releasing aU claims for personal injuries, that oral evidence was inadmissible, in the absence of fraud, to show that the plaintiff under- stood that the sum paid was intended as a settlement for the damages to his property only, and that it was agreed between the parties that if it appeared that he had been injured in his person he should be paid something more. A mistake or misunderstanding on the part of the plain- tiff of the legal import of a written agreement is not a ground for avoiding it at common law.^* Mutual mistake- Where, however, a general release is pleaded as an affirmative defense to a cause of action, plaintiff may show that by a mutual mistake of parties, or a mistake on his part and fraud on the part of the defendant, the wten a person with, capacity of he could not read and ■write, the reading and understanding an in- receipt being signed by making his strument signs it, he is, in the mark, and the evidence tending to absence of fraud and imposition, show that he did not understand it bound by its contents; stUl, if the was a release of damages, was such circumstances are such that he is a release. Whitney & Starrette not estopped from setting up his Co. v. O'Rourke, 172 lU. 177, 50 want of assent, he can be relieved N. E. 242. if it can be made to appear that he 18. Squires v. Amherst, 145 did not in reality assent. Smith Mass. 192, 13 N. E. 609; Brown V. Occidental & 0. S. Co., 99 Cal. v. City of Cambridge, 3 Allen 462, 34 Pae. 84. It was a question (Mass.) 474; Pratt v. Castle, 91 for the jury whether an ignorant Mich. 484, 52 N. W. 52; Cummings laborer understood that a receipt v. Baars, 36 Minn. 350, 31 N. W. for the amount of wages due him, 449; Wheaton v. Fay, 62 N. Y. giving the number of hours work 275; Germania Fire Ins. Co. v. and the rate, at the bottom of Memphis & C. R. Co., 72 N. Y. 90, which was the words "in fuU for 28 Am. Rep. 113. services and damages," it appearing § 62 Contracts Eelbasing Claims. 199 cause of action was included in tlie release, contrary to the agreement and intent of the parties, or, in case of fraud, contrary to his intent. The intentional concealment by the releasee of a cause of action existing in favor of the releasor, of which he was ignorant, will be sufficient to estop the former from insisting upon any advantage to be derived from the mistake of the latter. Whatever proofs would be regarded as sufficient to enable the plain- tiff to maintain an action for the reformation of the release, so as to except from its provisions the demand in suit, would be available to him in the action for personal injuries by way of avoidance of its terms. ^' Settlement in absence of counsel. Where a release wlas obtained from a woman after she had cormnenced an action and employed counsel, and where she had no one to advise her except her daughter- in-law, and where it appeared that the execution of it was urged upon her by her attending physician, acting in be- half of the defendant, and where she desired a postpone- ment until she coixld consult with her counsel in regard to the matter, it was said that these circumstances were of great weight; that no release, obtained after the action had been commenced and counsel employed, in the ab- sence of such counsel, and without his consent or knowl- edge, should bind the party unless the utmost good faith is shown on the part of the defendant in obtaining the same. Where a party has employed an attorney to prosecute an action, such attorney ought to be consulted if a com- promise of such action is sought, and ordinarily it would be an act of bad faith on the part of the chent and the oppo- site party to compromise the action without the consent of or without consulting such attorney.^" 19. Kirchner v. New Home S. Brant, 46 Wis. 419, 1 N. W. 82]. M. Co., 135 N. Y. 182, 31 N. E. See also Chicago, etc. R. Co. v. 1104. Doyle, 18 Kan. 58; Eagle Packet 20. Bussian v. Milwaukee, L. Co. v. Defries, 94 111. 598, 34 Am. S. & W. R. Co., 56 Wis. 325, 14 Rep. 245. N. W. 452 [citing Watkins v. 200 Mastee and Servant. §63 § 63. Whether avoidable in action for damages. Fraud relating to the execution of a release, such as a fraudulent representation that the writing is a mere receipt, may be set up as a defense to a plea of release in an action at law.^^ This is well settled, but there is much conflict as to whether fraud as to collateral facts or as to the consider- ation of a sealed release may be set up in an action at law. In practically aU the code states such defense may be set up,'''' but there is considerable conflict in the common law states,^' and in the federal courts.^* 21. Where the employee signs, believing he is signing something else, he may attack the release in an action at law. Chicago City R. Co. V. Uhter, 212 lU. 174, 72 N. E. 195. See also Homuth v. Metropolitan St. Ry. Co., 129 Mo. 629, 31 S. W. 903; Dwyer v. Wabash R. Co., 66 Mo. App. 335. 22. Rauen v. Prudential Ins. Co., 129 Iowa, 725, 106 N. W. 198; Missoiiri Pae. R. Co. v. Good- hobn, 61 Kan. 758, 60 Pae. 1066; Bussian v. Milwaukee, L. S. & N. R.Co., 56 Wis. 325, 14 N. W. 452; Lusted V. Railway Co., 71 Wis. 391, 36N.W. 857; Chicago, etc. R.Co. V. Doyle, 18 Kan. 58; Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa, 547, 25 N. W. 772. The Iowa court subsequently held that, although where there is a written release of claim for damages ob- tained by fraudulent representa- tions, an oral agreement not con- tained in the writing cannot be enforced until the written contract is set aside or reformed in a proper proceeding for that purpose. The action was to enforce the agreement, not to recover for the injury. Jessup V. Chicago & N. W. R. Co., 99 Iowa, 189, 68 N. W. 673. In Missouri, the cases are in conflict. Homuth V. Metropolitan St. R. Co., 129 Mo. 629, 31 S. W. 903; Och V. Missouri, K. & T. R. Co., 130 Mo. 27, 31 S. W. 962, 36 L. R. A. 442. 23. Attack not allowed at law. Papke v. G. H. Hammond Co., 192 lU. 631, 61 N. E. 910; Chicago City R. Co. v. Uhter, 212 HI. 174, 72 N. E. 195; Connor v. Dundee Chemical Works, 50 N. J. L. 257, 12 Atl. 713. Other common law states have held the contrary in release eases not relating to per- sonal injuries. 24. In action at law to recover damages for personal injuries, a release intentionally executed by plaintiff for a money consideration, he knowing the legal effect thereof, cannot be attacked, or its effect as a complete bar avoided, by showing that plaintiff was induced to sign it by the misrepresentations of the surgeon who attended him as to the permanent character of his in- juries. The action may be sus- pended while the plaintiff brings an independent suit in equity to rescind the release for fraud. Vandervelden v. C. & N. W. R. Co., 61 Fed. 54. Contra, see §64 CoNTEACTs Releasing Claims. 201 § 64. Return of consideration paid. While the courts are not agreed as to whether a tender of the consideration received is essential in order to bring a suit for damages, the general rule is that such a tender is necessary. ^^ In other jurisdictions, where the release is attacked for fraud, a tender or payment need not be made before suing. ^^ Wagner v. National L. Ins. Co., 33 C. C. A. 121, 90 Fed. 395. 25. HiU V. Northern Pao. R. Co., 51 C. C. A. 644, 113 Fed. 914; Harrison v. Alabama Midland R. Co., 144 Ala. 246, 40 So. 394; Lyons V. AUen, 11 App. Cas. (D. C.) 543; Louisville & N. R. Co. v. McBboy, 100 Ky. 153, 37 S. W. 844; Lomax v. Southwest Missouri Electric R. Co., 119 Mo. App. 192, 95 S. W. 945. But see Louisville & N. R. Co. v. Hehn, 121 Ky. 645, 89 S. W. 709. The same rule seems to prevail in South Carolina and Tennessee. It was held that one who seeks to rescind a compromise of a disputed claim on the ground of fraud, must promptly, on the discovery of fraud, return or o£fer to restore to the other party whatever he has received by virtue of it, if of any value. The tender must be without qualifications or conditions. He must rescind before the commence- ment of the action. If no rescis- sion is shown, a final determination by the court that plaintiff was entitled to more than the sum paid is no answer to the objection. Gould v. Caynga County Nat. Bank, 86 N. Y. 75; Pangbom v. Continental Ins. Co., 67 Mich. 683, 35 N. W. 814. And again a suit to rescind a release of a claim for personal injuries oannot be m.ain- tained without tendering back the mobey paid as a consideration therefor, and keeping the tender good. The reasoning of the courts is that the money is paid in part to save the costs and expenses of litigation even if the result should be favorable. If the plaintiff should prosecute the action, and the judg- ment should be adverse to him, he would still have in his possession the money paid hiTn to procure a settlement, and thus, in effect, the defendant would be deprived of all benefits of the settlement, without having secured to it the return of the money which it paid to secure a settlement. Vandervelden v. C. & N. W. R. Co., 61 Fed. 54. 26. Jaques v. Sioux City Trac- tion Co., 124 Iowa, 257, 99 N. W. 1069; Missouri Pac. R. Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066; Jones v. Alabama & V. R. Co., 72 Miss. 22, 16 So. 379; Hed- lum V. Holy Terror Min. Co., 16 S. D. 261, 92 N. W. 31; Bjorklund V. Seattle Electric Co., 35 Wash. 439, 77 Pac. 727; Spring VaUey Coal Co. V. Buzis, 213 111. 341, 72 N. E. 1060; St. Louis, I. M. & S. W. R. Co. V. Brown, 73 Ark. 42, 83 S. W. 332. It has been held, however, by other courts, that one may sue for personal injuries with- out tendering a return of the money 202 Masteb and Seevant. §65 § 65. Burden of proof. Where defendant sets up a release, the burden of prov- ing the existence of such release is on defendant. But when plaintiff attacks the release for fraud or want of consideration or the like, the burden of proving such fraud, etc., is on plaintiff." received for a release of his claim, ■which he contends was obtained by fraud and while he was mentally incapable, it being sufi&eient that the court instructs that if the jury find for the plaintiff they shall deduct from the amount awarded the sum already received. O'Brien V. Chicago, M. & St. P. R. Co., 89 Iowa, 644, 57 N. W. 425; Hendrick- son, 51 Iowa, 68, 60 N. W. 287; Chicago, etc. R. Co. v. Doyle, 18 Kan. 58; Hedlum v. Holy Terror Min. Co., 16 S. Dak. 261, 92 N. W. 31. If a release of a cause of action is obtained from a person by fraud and circum^vention, at a time when he is incapable of making a contract rationally, and money is paid him at the time of its execution, he may repudiate the release and bring his action without first paying or tendering back the money received by him. Chicago, R. I. & P. R. Co. V. Lewis, 109 111. 120. See also Allerton v. AUer- ton, 50 N. Y. 670; MuUen v. Old Colony R. Co., 127 Mass. 86, 34 Am. Rep. 349. Where a release and settlement of a claim against an insurance company was insisted upon as a bar to an action upon the poUey, and the money paid had not been returned or tendered, and the court allowed the sum so paid to be credited as so much paid on account of the injury, it was said: The defendant had no right to complain that this sum was not tendered or paid back before the action was commenced, and as a condition of recovery. E the action could not be maintained, clearly the plaintiff was entitled to retain the money. If it could be maintained, and there was no cause of action for weekly indemnity, but was for loss of feet, the most the company has a right to claim is, that the payment be used as a set-off to the plaintiff's claim. Sheanon v. Pacific Mut. Life Ins. Co., 83 Wis. 507, 53 N. W. 878. The fraud that will obviate the necessity of the return of the money paid in settlement and for a release, is the fraud of the party procuring the release and must be an actual intended fraud. Ordi- narily the question is one for the jury. Pawnee Coal Co. v. Royce, 184 111. 402, 56 N. E. 621. 27. St. Louis & B. Elec. R. Co. V. ErUnger, 112 IE. App. 506; Houston & T. C. R. Co. v. Milam, 58 S. W. (Tex. Civ. App.) 735. But a release being matter of defense, a plaintiff need not allege that it was obtained by fraud. Hedlum v. Holy Terror Min. Co., 16 S. Dak. 261, 92 N. W. 31. BOOK II. IMPLIED DUTIES OF MASTER. Chapter I. Genekal considerations, §§ 66-68. II. Safe place to work, §§ 69-156. III, Safe appliances, §§ 157-291. IV. Instructing and warning servants, §§ 292-310. V. Methods, §§ 311-321. VI. Rules, §§ 322-333. VII. Relating to employment op servants, §§ 334- 352. CHAPTER I. GENERAL CONSIDERATIONS. § 66. Enumeration of duties. The implied duties of a master in reference to his servant are (1) furnishing of safe place to work; (2) furnishing safe appUances and machinery; (3) estabhshing of proper and reasonable system for conducting the business; (4) the estabUshment and promulgation of rules for the guidance of the employees; (5) instructing and warning servants; (6) the employment of a sufficient number of co- servants to safely carry on the work; and (7) the em- ployment of competent co-servants. These duties will each be treated of in separate chapters in this volume, following this chapter. It is not the duty of a raihoad company to furnish its servants with food, shelter or transportation between their home and places of work.^ 1. King V. Interstate Consol. CarU v. Interstate Consol. St. St. R. Co., 23 R. I. 583, 51 Atl. R. Co., 23 R. I. 592, 51 Atl. 305. 301, 70 L. R. A. 924. See also 203 204 Master and Seevant. §§ 67, 68 § 67. Effect of custom. In subsequent chapters in wliicli are considered par- ticular duties of the master, the effect of custom among other employers in the same line of business as affecting the question of whether an employer sought to be held Uable for his failure to fulfill a duty whereby an employee is alleged to have been injured, exercised ordinary care, is fidly considered. Suffice it to state in this connection that the general rule is that where an employer conforms to the general practice of other employers in a Kke busi- ness, there is ordinarily no neghgence on his part. How- ever, it has been held that the failure of an employer to use ordinary care in rescuing an employee in a mine in which a fire started is not excused because he acted pur- suant to the unanimous opinion of other operators.* § 68. Delegation of duties. In the succeeding chapters, which deal with particular duties of the master in reference to his servant, the question will be considered as to whether particular duties can be delegated by the master to a servant so as to absolve the master from Habihty to another servant injured by the neglect of the servant to whom the duty was delegated. This question is in reahty a question of fellow- servants, since it usually arises in considering the con- tention that the offending servant was a fellow-servant of the injured servant. The general rule is that the personal duties of the master cannot be delegated so as to absolve him from liability, but in. some jurisdictions it has been held that the duty of inspecting and repairing machinery and appliances, and hke duties, may be delegated, al- though the general rule is to the contrary. 2. Bessemer Land & improve- ment Co. V. Campbell, 121 Ala. 50, 25 So. 793, 77 Am. St. Kep. 17. Safe Place to "VVokk. 205 CHAPTER II. SAFE PLACE TO WORK. I. Gbneeal Rules. See. 69. Rule and exceptions stated. 70. Safe place as distinguisiied from safe tools, machinery and appliances. 71. Matters considered and ques- tion as one for jury. Temporary structures. Permanent structures. 72. Duty of master as delegable. 73. Where place selected, con- structed by, or in care of, injured servant. 74. Place of work controlled or owned by third person. Tracks or bridge owned by third person. 74a. Safe place improperly used. 75. When place is "reasonably safe." Master's duty not absolute, but exercise of ordinary care. 76. Failure to supply articles as making place unsafe. 77. Effect of illegality of work. 78. What plaintiff must show. II. What Constitutes Place to Work. 79. Includes only place provided for servant's occupancy or accustomed use. 80. Temporary places. III. Exceptions to Rule De- pendent ON Nature or Work. 81. In general. 82. Exception as applicable only Sec. where work "necessarily" renders place dangerous. 83. Application of exceptions to rule. Ballasting track. Blasting operations. Construction of bridge. Construction of buildings. Construction of pier. Construction of tracks. Fixing place in mine. Landslides. Making alterations in electric switch board. Mining operations. Moving gravel in pit. Oil box on engine. Repairing bridge. Repairing building. Repairing tracks. Sheeting trench. Tearing down acid chamber in building. Tearing down building. Tearing down wall. Removal of buildings. Tracks. IV. Exception Where Place Made Unsafe by Fellow- Servant OR Third Person. 84. Master ordinarily not liable. 85. Dangers incident to work. 86. Duty of warning where ex- posed to danger from doing of work by other servants. 87. Unsafe condition created by third person. As result of malicious act of trespasser. 206 Master Airt) Seevant. See. 88. Doctrine of Kentucky court. 89. True doctrine stated. Principle not followed. 90. Length of time unsafe condi- tion exists as charging mas- ter with notice. 91. Permanent structures. 92. AppUcations of rule. Bridges. Buildings. Cars. Drain. Floor. Gangway. Guard to gateway on vessel. Hammer on ladder steps. Hatchways. Iron plate placed on end. Lights. Lumber piles. Metal piece placed over ma- chine. Mill, removal of belt. Mining. Passageway. Pits. Pushing stack of doors on em- ployee. Round-house, moving engine in. Shunting cars. Stones piled upon soft ground. Switch left open. Temporary staging for un- loading vessel. Tracks. Trap door left open. Trenches. Triangle made by mate. Undermining loose coal. Unexploded blast. Vessels. Wheelbarrow left near track. Planks inseciu:ely piled. See. V. 'Character" of Premises. A. In general. 93. Introductory. 94. Scope of subdivision. B. Bridges. 95. In general. 96. Width. 97. Height. 98. 99. 100. 101. 102. 103. 104. 105. C. Mines. In general. Timbering. Duty personal to master. As a place of work. Duty to see that timbers are properly set and in repair. Precautions to prevent ma- terial falling from roof. Water in adjacent mine. Structures or appliances in. Cage. Car derailed. Roadway. Skip not used for passengers. Switches. Tracks. Ventilation. Statutes regulating and vio- lations thereof. Employment of competent mine boss. Cage, covering. Door attendant. Labor on Sunday. Lighting. Marking dangerous places. Props. Furnishing. Ventilation. D. Tracks. 106. Construction. Ballasting. 107. Cattle guards. Sate Place to Work. 207 See. 108. Culverts. When should be covered. Method of oonstruotion. 109. Fencing. Assumed risks and contribu- tory negligence. 110. Structures near track. Duty in respect to. Force of expression "nearer than necessary." Space sufBcient to clear em- ployee at side of car. E. Side tracks. 111. Construction. 112. Ballasting. 113. Character of rails. Closeness to main track. VI. ."Condition" op premises. A. In General. 114. Introductory. B. Bridges. 115. In general. 116. Adoption by use. C. Buildings. 117. In general. , 118. Fire escapes. Whether statute complied with. 119. Floors. Uneven conditions. Hole unguarded. Nail in. Opening in. Slippery condition. 120. Steps, slippery condition. 121. Trap doors. D. Dynamite, storage of. 122. As making place unsafe. E. Electrical appliances. 123. Care to be exercised. Sec. 124. Specific duties. 125. Character of appliances. Proximate cause. F. Elevator shafts. 126. In general. G. Quarries. 127. Master's duty. 128. Unexploded blast. H. Tracks. 129. In general. 130. Warning, effect of. 131. Extraordinary storms and freshets. 132. Depression or holes in track. 133. Open ditch. 134. Defects in rail. 135. Control of power while re- pairing electric railway. 136. Telltale, condition of. 137. Ties, condition of. 138. Side tracks. Rails, condition of. 139. Obstructions upon. Piles of sand. Chnkers. 140. Obstructions at side. Lumber piles and rails. Truck left near. Wagon left near. Rocks on bank of cut. 141. Ice and snow. 142. Temporary tracks. 143. Private tracks. 144. Tracks owned by third person. VII. Trenches, Pits and Tun- nels. 145. In general. 146. Excavating and shoring. 147. Furnishing material. 148. Peculiar conditions. 149. Latent dangers. 208 Mastbb and Sebvant. §69 Seo. Seo. 150. Where work is required in a VIII. Notice or Knowledge of trench prepared. Sufficiency of material fur- nished. Covering. Guarding. 161. Pits. 152. Tunnels. Defects and Results Thereof. 153. In general. 154. Length of time. Knowledge of impending dan- ger. 155. Time to remedy defects. 156. Dangers not reasonably an- ticipated. I. General Rules. § 69. Rule and exceptions stated. It is the duty of the master, -wrhich lie cannot delegate so as to escape liability, to use reasonable or ordinary care to provide a reasonably safe place for his servants to work in, except that such rule does not apply (a) where the work the servant is employed to do consists in making a dangerous place safe, or (b) where the character of the place for safety is constantly changing as the work pro- gresses as a direct result of the servant's labor, or (c) where the work itself makes the place insecure or dangerous, or (d) where the place is made unsafe by the carelessness and negligence of feUow-servants, or (e) where the place is made unsafe by a stranger and sufficient time has not elapsed to charge the master with knowledge thereof.^ 1. This rule is so elementary that an extended citation of cases is not deemed necessary. See Bessex V. C. & N. W. R. Co., 45 Wis. 477; Hulehan v. Green Bay W. & St. P. R. Co., 58 Wis. 319, 17 N. W. 17; Hulehan v. Green Bay, W. & St. P. R. Co., 68 Wis. 520, 32 N. W. 529; Van Dusen v. Letellier, 78 Mich. 492, 44N. W. 572; Coombs V. New Bedford Cordage Co., 102 Mass. 572, 3 Am. Rep. 506; Brazil Block Coal Co. v. Young, 117 Ind. 520, 20 N. E. 423; Rogers v. Ley- den, 127 Ind. 50, 26 N. E. 210; Cincinnati, I. & St. L. & C. R. Co. V. Lang, 118 Ind. 579, 21 N. E. 317; Blazenie v. Iowa & W. Coal Co., 102 Iowa, 706, 72 N. W. 292; State v. Flanigan, 74 Atl. (Md.) 818. The exceptions to the rule will be treated of in succeeding paragraphs. But no duty rests upon the master to make his fac- tory and the instrumentahties fur- nished by him to his workmen better than they were when the employee chose to accept work in the factory as it was and with the instrumentahties for work as they were then, and hence failure to cleat a plank at the edge of a vat, which slipped, precipitating a work- man into the vat, who had worked §§ 70, 71 Sape Place to Wokk. 209 This rule and the exceptions thereto are well settled and prevail throughout all the states except in so far as modified by legislation. The difficulty arises in applying the rule and the exceptions to particular cases. § 70. Safe place as distinguished from safe tools, ma- chinery and appliances. As a matter of fact, there is no clear dividing line be- tween safe place and safe machinery, etc., and some text writers have therefore not attempted to classify the two separately. For instance, a scaffold can well be considered a place to work but may just as readily be looked at as an appliance to do the work with. So a railroad engine may be considered as a place for the engineer to work or a piece of machinery fm-nished the engineer to do his work with. Generally, most of these eases where it could be treated of as an appUance are considered in the succeeding chapter relating to safe appUances, and this chapter is principally if not wholly devoted to safe place to work as relating to the premises themselves. § 71. Matters considered and question as one for iury. The term "reasonably safe" is flexible, and what is reasonably safe must be determined with reference to the character of the work and the dangers that are ordinarily and reasonably incident thereto. It has been stated that a test of quite general acceptance is that of general use. It has been quite generally held that the question is one ordinarily for determination by the jury in a given case. As to permanent structures, such rule might lead to very unsatisfactory results. One jury might determine that a particular structure under the law was reasonably safe, while another might consider the same structure as not being reasonably safe, thus necessitating, if complying with their expressed judgment, a constant change in. char- acter and condition. there for nearly a year, was not Miszoian v. Taft, 206 Mass. 227, such negligence as entitled a re- 92 N. E. 335. eovery for injuries thus received. 1 M. & s.— 14 210 Masteb and Sebvant. § 71 The question frequently arises in respect to the char- acter in height and width of bridges maintained over raihoad tracks and the structures erected near such tracks, which are among the necessities incident to a suc- cessful operation of a railroad, the courts differing widely as to the duties of a raihoad company in respect to such structures, some holding to the generally expressed rule that the master may conduct his business in his own way, with such apphances as to him seems proper when free from defects, and applying the doctrine of assumed risk where servants may be injured, while others hold that where such structures are unnecessarily dangerous that a railroad company is hable to employees injured thereby as for negUgence. The difference in the two extremes re- solves itself in the question of warning and instruction. It follows from the rule adopted by the first that the risk of dangers from such structiires is a risk assumed by the employee, as an ordinary risk incident to the service, and from the declared views of the others that the risk is not an ordinary risk, but extraordinary, and the company is hable, unless the servant has received proper and sufficient warning and instruction and thereby assumes the risk. Unquestionably the doctrine held by the courts first mentioned is the more consistent with the general princi- ples which underlie the subject of the master's habihty for injuries to his servant. It removes the question from the field of speculation and conjecture, as it must be admitted that the verdicts of unskilled and inexperienced jm-ies, in such cases, are but the result of speculation and con- jecture, even when based upon the opinion of so called experts. Further, warning and instruction is impractica- ble, and ordinarily would be but an idle requirement. To point out to an employee that there are certain structures which unless care is used are dangerous, would be of no benefit whatever to the employee. In the discharge of his duties, if engaged in the service of operation of trains, he would not and in fact could not be presumed to bear ia mind at aU times the location of such structures. His ob- servation after entering upon the employment would § 71 Safe Place to Wobk. 211 supersede the warning, and if not, would be more sug- gestive to him of particular danger than any instruction or warning, which possibly could be given him. Temporary structures. With respect to temporary structures, if necessary, of which the master should be the judge, ordinarily the question of negUgence does not or ought not to arise, where not defective. The only question in such ease is that of assumed risk, and this involves the question of instruction and warning. In one sense they may be said to be risks incident to the employment, but not to the extent that the servant is not in some manner to be informed thereof. Permanent structures. With respect to defective structures or premises or place of work, made dangerous by reason of defects, ordi- narily the master, if chargeable with knowledge thereof, wiU be held to have been neghgent and in case of injury to a servant caused thereby, will be held hable, unless relieved by the fact that the servant assumed the risk, or was guilty of contributory negUgence, and in order to charge the servant with an assumption of the risk, it must appear either that he was chargeable with knowledge of the danger or had been properly instructed and warned in respect thereto. In cases, therefore, other than where the danger results from defects, the master ordinarily is not liable as for negligence in maintaining the imsafe place, but, if hable at all, for failure to properly warn and in- struct. In cases of defects, his habiUty may rest upon neghgence in maintaining the unsafe place, and the ques- tion ordinarily is whether he is excused or reheved from such habihty by an assumption of the risk on the part of the servant, or by the latter's contributory negligence. If these distinctions are kept in view, much of confusion and apparent inconsistency may be avoided. 212 Master and Seevant. §§72-74 § 72. Duty of master as delegable. The duty to provide a safe place to work cannot be dele- gated to an agent or independent contractor so as to relieve the master from hability where the place was unsafe. ^ § 73. Where place selected, constructed by, or in care of, injured servant. The master's duty to provide a safe place to work does not arise where the servant, having the option, selected the place;' nor where it is a part of the servant's duty to keep the place safe;* nor where the servant assimies the construction of the place. ^ § 74. Place of work controlled or owned by third person. Where the master neither has nor assumes possession or control, legal or actual, of the prenaises where the servant is at work, the duty does not rest upon him to furnish a safe place to work. The duty of the master in respect to 2. Edward Hines Lumber Co. v. Beaumeister, 104 Va. 744, 52 S. B. Legas, 172 lU. 315, 50 N. B. 225, 64 627. Am. St. Rep. 38; Trainor v. Phila^ 5. A servant may assume con- delpMa & R. R. Co., 137 Pa. St. struction of the place in which he 148, 20 Atl. 632; Munoie Pulp Co. works and if he does, the master is V. Jones, 11 Ind. App. 110, 38 N. E. relieved from that duty and liability 547; Chisholm v. New England for injuries to him for defects Telephone & Telegraph Co., 185 therein. Donovanv. Harlan & Hoi- Mass. 82, 69 N. E. 1042; Mississippi lingsworth, 44 Atl. (Del. Super.) Cent. R. Co. v. Hardy, 88 Miss. 619. The general rule as to the 732, 41 So. 505; Herdler v. Buck's master's duty in respect to fur- Stove & Range Co., 136 Mo. 3, nishing a safe place for his em- 37 S. W. 115; English v. Amidon, ployees to work in does not apply 72 N. H. 301, 56 Atl. 548; Siversen where the servant does his work V. Jenks, 102 App. Div. 313, 92 N. Y. upon staging, scaffolding or similar Supp. 382; Smith v. Dayton Coal structures, where it is the duty of & Iron Co., 115 Tenn. 543, 92 the servant, by force of his employ- S. W. 62, 4 L. R. A. (N. S.) 1180; ment, to make such structures safe Pacific Express Co. v. Shivers, 41 for his own use. Channon v. San- Tex. Civ. App. 291, 92 S. W. 46. ford Co., 70 Conn. 573, 40 Atl. 462, 3. Hettick v. Hillje, 33 Tex. 41 L. R. A. 200, 66 Am. St. Rep. Civ. App. 571, 77 S. W. 641. 133. Rule as to scaffolds, see in- 4. Newport News Pub. Co. v. fra, §§ 197-221. §74 Sai'e Place to Woek. 213 the place is founded essentially upon his occupation, use and control of the premises.® But the fact that the master merely leases the premises does not absolve him from liability on the groimd that the place to work is unsafe.'' Nor is the master's liability affected by the fact that, as between such master and his landlord, the latter is to keep the place in proper condition and repair.^ So it is immaterial that the unsaf ety in the place of work arises from defects in the appliances of an independent contractor.' Tracks or bridge owned by third person. However a street railway company has been held liable for using a defective city bridge,^" as has an employer using a defective railroad track belonging to another." 6. Wliere tlie master sent his servant to perform work upon the building of a third party, he was not responsible for injury to the servant caused by defects therein. Channon v. Sanford Co., 70 Conn. 573, 40 Atl. 462, 41 L. R. A. 200, 66 Am. St. Rep. 133. The master was held not liable to an employee for injuries sustained while working at a dangerous place directed by the master, but over which he had no control. Long v. John Stephen- son Co., 73 N. J. L. 186, 63 Atl. 910; Sharpley v. Wright, 205 Pa. St. 253, 54 Atl. 896; Hughes v. Maiden & M. Gaslight Co., 168 Mass. 395, 47 N. E. 125; Trask v. Old Colony R. Co., 156 Mass. 298, 31 N. E. 6; Channon v. Sanford Company, 70 Conn. 573, 40 Atl. 462, 41 L. R. A. 200, 66 Am. St. Rep. 133. Nor where engaged with its servants in taking down and removing machinery from premises which did not belong to it. Pair- banks, Morse & Co. v. Walker, 88 C. C. A. 78, 160 Fed. 896. 7. Adams Express Co. v. Smith, 24 Ky. L. Rep. 1915, 72 S. W. 752. 8. Dieters v. St. Paul Gaslight Co., 86 Minn. 474, 91 N. W. 15. 9. Gulf, C. & S. F. Ry. Co. v. Delaney, 22 Tex. Civ. App. 427, 55 S. W. 538. 10. City of Indianapolis v. Cauley, 164 Ind. 304, 73 N. E. 691. 11. Story V. Concord & M. R. R., 70 N. H. 364, 48 Atl. 288; Ar- kadelphia Lumber Co. v. Smith, 78 Ark. 505, 95 S. W. 800. Contra, Hamilton v. Louisiana & N. W. R. Co., 117 La. 243, 41 So. 560, 6 L. R. A. (N. S.) 787. The fact that a track upon which an em- ployee was injured was owned by a third party, whose duty it was to repair it, did not deprive him of his right against Hs employer. Story V. Concord & M. R. Co., 70 N. Hamp. 364, 48 Atl. 288. And where a transfer company used the premises of another in performing its service, it owed the same duty in respect to their safety, to one of its servants, as it did in respect to 214 Mastee and Sebvant. §§ 74a, 75 § 74a. Safe place improperly used. Where a reasonably safe place to perform a service in the usual and customary way, that servants may reason- ably be expected to take, has been furnished, the master has performed his duty, and if the servant sees fit to per- form such service in a way which is not reasonably to be anticipated as one which would be adopted by any person under the circumstances, the master is not guilty of neghgence.^^ § 75. When place is "reasonably safe." What is reasonably safe within the meaning of that term, as used in the law of master and servant in its relation to the furnishing of a working place, was stated by a learned court to be a place to work as free from danger as other persons of ordinary care and caution and engaged in hke business and under Kke circumstances ordinarily furnish, and with respect to the degree of care required to be exercised on the part of the master, that the true test is whether the master came up to the standard of persons generally under similar circumstances; whether he observed such care as men of ordinary care and pru- premises of its own. Thus, wliero coupling cars thereunder. Doyle one, its foreman, in performing his v. Toledo S. & M. R. Co., 127 duties of superintending the placing Mich. 94, 86 N. W. 524, 54 L. R. A. of cars upon a private spur track, 461, 89 Am. St. Rep. 456. necessarily used steps leading from 12. This was declared in an the platform of a mUl too near the action where the operator of a track, which were rendered danger- machine, instead of using a shovel ous by their icy condition, and he which was his usual way of remov- was injured in stepping therefrom, ing saw dust from the floor under such company was held liable. his machine, crouched down under Harding v. Railway Transfer Co., the table after he had removed the 80 Minn. 504, 83 N. W. 395. So a saw dust from the floor, took hold railroad company which operates of the tinspout and shook it with its side track under the shed of a his hand to cause the saw dust brick kiln not owned by it, owes therein to drop on the floor, and the duty to its employees of seeing while in this position his foot that the shed is in a reasonably safe slipped causing his arm to be condition, and is liable to one of its thrown against the saw underneath brakemen for injuries received the table. Schmitt v. Seefeld, 139 from the falling of the shed while Wis. 459, 121 N. W. 136. § 75 Saj-e Place to Wobk. 215 dence observe in and about their affairs, or in other words, such care as the great mass of men observe under similar circumstances. ^ ' Stated differently, the rule requiring the master to fur- nish a servant with a reasonably safe working place, calls only for a place free from all dangers which a person, iu the circumstances of the master, in the exercise of ordinary care, ought to know of, and which, under the circum- stances, the servant in. the exercise of ordinary care, is not legally chargeable with knowledge of.^* And the duty is also hmited to the care necessary to have it reasonably safe for the purpose for which it was de- signed." As to dangerous substances, it is said that the measure of care imposed on the master for the safety of his servant is that ordinary care which reasonable and prudent men woxold and do exercise under Uke circum- stances." Other expressions of the courts as to the care required are given in the note below. ^^ Master's duty not absolute, but exercise of ordinary care. The duty on the part of the master is not absolute. The employer is not an insurer or guarantor of the abso- 13. Innes v. Milwaukee, 96 Livengood v. Joplin-Galena Coasol. Wis. 170, 70 N. W. 1064; Guinard Lead & Zinc Co., 179 Mo. 229, 77 V. Knapp, Stout & Company, 95 S. W. 1077. Care a reasonably pru- Wis. 482, 70 N. W. 671; JemniensH dent person would exercise under V. LobdeU Car Wheel Co., 5 Pen- like circumstances. WUliams v. new (Del.) 385, 63 Atl. 935. Sleepy Hollow Min. Co., 37 Colo. 14. MueUer v. Northwestern 62, 86 Pac. 337, 7 L. R..A. (N. S.) Iron Co., 125 Wis. 326, 104 N. W. 1170; Virginia & N. C. Wheel Co. 67. V. Harris, 103 Va. 708, 49 S. B.991 . 15. Saunders v. Eastern Hy- Higher degree of care where em- drauho Pressed Brick Co., 63 N. J. ployees are underground with scant L. 554, 44 Atl. 630, 76 Am. St. means of escape in case of danger. Rep. 222. WiUiams v. Sleepy Hollow Min. 16. Schwartz v. Shull, 45 W. Co., supra. NegUgence need not Va. 405, 31 S. B. 914. be gross. Tradewater Coal Co. v. 17. Reasonable care so far as Johnson, 24 Ky. L. Rep. 1777, 72 is reasonably consistent with the S. W. 274, 61 L. R. A. 161. Work the servants are placed at. 216 Master and Servant. §75 lute safety of the place of work. The limit of his obliga- tion and duty in that behalf is to exercise reasonable and ordinary care, having due regard to the hazards of the service, to provide his employee with a safe place in which to perform his work. And the statement that the em- ployer owes his servant the duty of providing him a reasonably safe place in which to work, is erroneous, in that it imposes upon the employer a higher degree of care than the law requires or exacts of him.^* 18. Armour & Co. v. Russell, 75 C. C. A. 416, 144 Fed. 614, 6 L. R. A. (N. S.) 602; National Biscuit Co. V. Nolan, 70 C. C. A. 436, 138 Fed. 6; Herren v. Tusca- loosa Waterworks Co., 40 So. (Ala.) 55; Lanza v. LeGrand Quarry Co., 115 Iowa, 299, 88 N. W. 805. But see Riehey v. Southern R. Co., 69 S. C. 387, 48 S. B. 285. Cincin- nati H. & D. R. Co. V. Frye, 80 Ohio St. 289, 88 N. B. 642, 131 Am. St.Rep. 709; Culver v. South Haven & E. R. Co., 138 Mich. 443, 101 N. W. 663; Lockwood v. Tennant, 137 Mich. 305, 100 N. W. 562; BlonsH V. American Enameled Brick & TUe Co., 76 N. J. L. 89, 63 Atl. 909; Cudahy Packing Co. v. Wesolowski, 75 Neb. 786, 106 N. W. 1007; Willis v. Cherokee FaUs Mfg. Co., 72 S. C. 126, 51 S. B. 538; Texas & P. R. Co. v. McCoy, 90 Tex. 264, 38 S. W. 36; Thomp- son V. California Const. Co., 148 Cal. 35, 82 Pae. 367. Notwith- standing the strong and emphatic declaration of a court in respect to the character of the place fur- nished and the master's duty in respect thereto, in short, that of ordinary care, in Innes v. Milwau- kee, 96 Wis. 170, 70 N. W. 1064, and Guinard v. Knapp, Stout & Co. Company. 95 Wis. 482, 70 N. W 671, and that the rule there declared is practically the one universal rule prevailing in the different jurisdic- tions of the country, that court quite recently seems to have made a wide departure from it, and reached the conclusion that the duty of the master to furnish the servant, in the first place, with a reasonably safe place to work, is absolute. That it cannot be dele- gated nor can it be performed by him by merely exercising ordinary care to furnish such a place. It is satisfied only by the actual fur- nishing thereof. It is said: "this rule apphes to the time of the actual furnishing thereof, not to every instant of time thereafter. This being done, there comes a secondary duty to exercise ordinary care to preserve for the servant its rea- sonably safe condition. If it be- comes unsafe and the servant re- ceives injury before the master has knowledge of the existence of the danger or has reasonable oppor- tunity to obtain sueh knowledge and reasonable opportunity to remedy the danger, he is not hable." Howard v. Beldenville Lumber Co., 129 Wis. 98, 108 N. W. 48; Yeziek V. Chicago Brass Co., 138 Wis. 342, 120 N. W. 247. See also Par- ksr Y. Fairbanks Morse Mfg. Co., §75 Safe Place to Woek. 217 As applied to a railroad corporation in respect to its tracks, its duty is to exercise reasonable watchfulness and care in inspecting its tracks and in keeping them in a reasonably safe condition.^' 130 Wis. 525, 110 N. W. 409. Not- with standing the emphatic lan- gniage stated by thecourt in each of those cases, we find late expres- sion of the rule to be inconsistent with what is therein stated, and the rule contended for as the law approved. The question in issue was the location of a cattle chute with reference to its nearness to a side track. After stating that there was abundant proof that the railroad company acted with aU the care ordinarily exercised in such matters, there being none to the contrary, there was presented no controverted question for the jury, it was further stated: ."This court has often held in terms or in effect, that if a person acts in the custo- mary way and is not obviously careless as to the safety of persons or property of others, he cannot properly be convicted of having been guilty of actionable negUgenee. The logic is unanswerable, since the test of actionable neghgence is absence of ordinary care, and ordi- nary care is the care exercised by the great mass of mankind, that a person whose conduct is in har- mony with that of such great mass under the same or similar circum- stances, is not guilty of actionable wrong. With the exception noted the rule is universal and has been often recognized by the court." Such exception was stated to be where a customary way is utterly disregardful of personal safety. Jensen v. Wisconsin Cent. R. Co., 128 N. W. (Wis.) 982. Certainly this does not accord with previous declarations referred to that the master's duty was absolute and not the exercise of ordinary care. To the same effect as the foregoing, was another recent statement of the court as follows: "The rule re- quiring the master to furnish his servant with a reasonably safe working place, calls only for a working place free from all dangers which a person in the circum- stances of the master in the exer- cise of ordinary care, ought to know of, and which under the cir- cumstances, the servant in the exercise of ordinary care is not legally chargeable with knowledge of." Glenesky v. Kimberly & Clark Co., 140 Wis. 52, 121 N. W. 893. It is possible that the court in stating in the cases just cited that the master's duty was absolute and not the exercise of ordinary care, that it was intended only that it was absolute to the extent that it was general and could not be dele- gated. The language used, how- ever, does not warrant it. It was negligence to place a bell used as a signal to start machinery in such a manner that it might be rung by accident. Owens Vora Brick & Sewer Pipe Co. v. Glenn, 106 S. W. (Ky.) 1195. 19. Culver v. South Haven & Eastern R. Co., 138 Mich. 443, 101 N. W. 663; Pahlan v. Detroit, G. H. & M. R. Co., 122 Mich. 232, 81 N. W. 103. In the operation of 218 Mastek and Servant, §§ 76-78 The duty of a railroad company as to keeping its tracks and grounds in a safe condition is a relative one, dependent on the purposes for wliich they are used, and the duties required of employees on them. ^^ For instance, a coal company operating a logging road solely for its own purposes need not maintain the road with the same degree of care required of commercial railroads. ^^ § 76. Failure to supply articles as making place unsafe. In order to make a place to work safe, it is generally necessary to supply those appliances which are custo- marily used by employers in connection with such work.^'' § 77. Effect of illegality of work. A city is not excused from its duty to furnish a reason- ably safe place for its servants to perform their work, as for instance, in the construction of a pubhc sewer, on the groimd that such sewer was not legally estabhshed.^' § 78. What plaintiff must show. In an action by a servant for personal injuries alleged to have been caused by failure of the master to furnish a safe place to work, it was held that the plaintiff, in order to recover, must show that the place was unsafe, that the master in the exercise of ordinary care would have railroads, ordinary care is required . 21. Demko v. Carbon HUl Coal Choctaw, O. & G. R. Co. v. Co., 69 C. C. A. 74, 136 Fed. 162. Doughty, 77 Ark. 1, 91 S. W. 768; 22. Under the evidence, there Anderson v. Northern Pac. R. Co., was not a failure of duty in pro- 34 Mont. 181, 85 Pac. 884; De Mase viding a place of work, in not sup- V. Oregon R. & Nav. Co., 40 Wash, plying what was termed a pipe 108, 82 Pac. 170. Care dependent on horse, an appUance used in the the situation of the road and the manufacture of screws, it not being topography of the country. Pat- essential, in view of the appliance ton V. Southern R. Co., 27 C. C. A. used, for the safe doing of the work. 287, 82 Fed. 979. Not "high" Conner v. Draper Co., 182 Mass. degree of care. Van Blarcom v. 184, 65 N. E. 39. See also next Central R. Co. of New Jersey, 73 chapter. N. J. L. 540, 64Atl. 111. 23. Norton v. City of New 20. Williams v. St. Louis & Bedford, 166 Mass. 48, 43 N. E. S. F. Ry. Co., 119 Mo. 316, 24 S. 1034. W. 782. § 78 Safe Place to Woek. 219 had knowledge of the defect, and that the plaintiff did not have knowledge and did not have equal opportunities of acquiring it.^^ As stated by another court, to render a master liable for injuries to a servant caused by the condition of his premises, it must appear that the servant did not appre- ciate the risk incident to the condition, that the master did appreciate it, that the condition was such as a man of average prudence would not suffer to exist, and that the master did not exercise ordinary care in notifying the servant of the dangers incident thereto. ^^ These statements seemingly place the burden of proof as to assumption of risk upon the plaintiff and undoubt- edly express the doctrine in those jurisdictions where such is the rule, with the exception of the statement as to equal opportunity. However, in many jurisdictions, as fully appears in the chapter on evidence, such burden is cast upon the defendant, and hence the foregoing statements made by the courts with respect to the plaintiff's want of knowledge or opportunity, have no application. Equal means of knowledge, as an element of assumed risk, has never been recognized by the majority of courts, and in some where formerly recognized has been discarded. This question is considered iu a subsequent chapter under head of equal knowledge. II. What Constitutes Place to Work. § 79. Includes only place provided for servant's occu- pancy or accustomed use. The master's duty in respect to furnishing his servants a safe place in which to work, extends to such parts of the premises only as he has prepared for their occupancy while doing his work, and to such other parts as he knows 24. McCormick Harvesting 25. Bennett v. Concord Wood- Mach. Co. V. Zakzewski, 220 lU. working Co., 74 N. H. 400, 68 Atl. 622, 77 N. E. 147, 4 L. R. A. (N. 460. S.) 848. 220 Mastee and Servant. §79 or ought to know they are accustomed to use while doipg it. If the servant voluntarily and without necessity de- parts from the safe place to one more dangerous, and is injured, the master is not hable.^^ The duty of the master is Kmited to the premises where the servant is required to be for the performance of his work, and does not extend to his protection while on priv- ate excursions outside of those limits, taken solely on his own account. ^^ The place to work includes the mode of entrance and exit ; ^* passageways; 2' walks i^" stairways ;^^ railroad tracks; '^ 26. Harris v. Det. Farende DampsMbselskab, 75 N. J. L. 861, 70 Atl. 155. 27. Kennedy v. Chase, 119 Cal. 637, 52 Pao. 33, 63 Am. St. Rep. 153; Broadway Coal Min. Co. v. Render, 119 S. W. (Ky.) 198. 28. Haber v. Jenkins Rubber Co., 72 N. J. L. 171, 61 Atl. 382. 29. The duty of the master in respect to furnishing a safe place to work extends to a passageway in a mill between two machines, used for a long time by the employees with the assent of the master. Ed- wards V. TUton Mills, 70 N. H. 574, 50 Atl. 102. WTule the plain- tiff was on defendant's premises at their request for the purpose of making repairs on the roof, he was injured by falling through an open unguarded hatchway in dangerous proximity to the regular passage- way in which he was walking. Neither the hatchway nor the passageway was sufficiently lighted. AU such facts were known to de- fendants and unknown to the plaintiff, and defendants were Ua.- ble. This case seems to have been decided on the ground that the plaintiff was a licensee, not an employee, as it held that the alle- gations of the complaint did not show he was in defendant's em- ploy. BarowsH v. Schulz, 112 Wis. 415, 88 N. W. 236. 30. A walk provided by the master for the use of servants is a place of work within the meaning of the law. Kirby v. Montgomery Bros. & Co., 197 N. Y. 27, 90 N. E. 52. 31. English v. Amidon, 72 N. H. 301, 56 Atl. 548; Ferris v. Herns- heim, 51 La. Ann. 178, 24 So. 771. 32. A reasonably safe place to work, which it is the duty of the master to furnish, includes the entire track over which an employee is required to pass. Newhouse v. Kanawha & W. V. R. Co., 62 W. Va. 562, 59 S. E. 1071. But a railroad company is not liable for injuries to an employee because of alleged defects in a frog where the employee was using a tri- cycle at an excessive rate of speed, to which he had attached a gaso- line engine with the consent of the master. TwitcheU v. Minneapolis St. P. & S. S. M. R. Co., 107 Minn. 383, 120 N. W. 631. §79 Safe Place to Woek. 221 ladders;^' running board on machine;'* steel deck of a vessel;'** place where employees go to eat their dinner, the time given being too short to enable them to leave the premises to eat;'^ room where employees are accustomed to go to change their clothes;'* tunnel leading to a coal mine, through which employees go to work;'' etc. Other illustrations of what constitutes a place to work are given in the note below. '^ 33. A ladder, maintained for an employee to reach, one of the man heads at the rear of one of the boilers in a factory, was held a place which the master's duty required him to maintain reason- ably safe. Missouri K. & T. R. Co. V. Steele, 50 Tex. Civ. App. 634, 110 S. W. 171. 34. Running board on a ma- chine upon which an employee stands while operating it, is a working place, within the rule of the master's duty. Marshal v. Dalton Paper MiUs, 82 Vt. 489, 74 Atl. 108, 24 L. R. A. (N. S.) 128. 34a. It was a question for the jury whether under the evidence it had been rendered unsafe from having been recently painted, the paint not having dried, which ren- dered it sHppery, and also whether an employee ignorant of its condi- tion at the particular place, should have been warned of the condition or danger therefrom. Orso v. Great Lakes Engineering Works, 129 N. W. (Mich.) 673. 35. Cleveland, C. C. & St. L. R. Co. V. Martin, 13 Ind. App. 485, 41 N. E. 1051. 36. Muhlens v. Obermeyer & Liebmann, 83 App. Div. 88, 82 N. Y. Supp. 527. 37. WiUiams v. Belmont Coal & Coke Co., 55 W. Va. 84, 46 S. E. 802. 38. A bin used for the storage of scrap iron from which servants are to select the material thus stored for use is a place of work. Baltimore & 0. S. W. R. Co. v. Spaulding, 21 Ind. App. 323, 52 N. E. 410. The duty of the master, a railroad company, in respect to the safety of its tracks, includes a contrivance for weighing cars con- stituting a portion of a track. Rome R. Co. v. Thompson, 101 Ga. 26, 28 S. E. 429; Thompson v. Rome R. Co., 101 Ga. 26, 28 S. E. 429. The master having provided other means for his employees to reach the various floors of the building than by riding on a freight elevator not intended to carry pas- sengers, and during his seven years' employment an employee had not used the elevator but once before, and he was injured in f aUing off the elevator, negligence was not chargeable to the master in faihng to employ a conductor. O'Don- nell V. MacVeagh, 205 lU. 23, 68 N. E. 646. A railroad company owes no duty to its employees to maintain a safe footway along its road bed, and hence a brakeman injured by falling into a hole left between ties by the ballast washing out, has no cause of action against the company. Kerrigan v. Penn- sylvania R. Co., 194 Pa. St. 98, 44 Atl. 1069. The master's duty in 222 Master and Servant. §§ 80, 81 § 80. Temporary places. The place to work, to be witMn the rule, must be a place permanent in character, as distinguished from where the servant is making his own place to work in.'^ III. Exceptions to Rule Dependent on Nattjke of Work. § 81. In general. The duty to furnish a safe place to work does not apply (a) where the work is making a dangerous place safe,^" as in removing a railroad wreck; or (b) where respect to the piling of lumber and to the men engaged thereat, is to exercise ordinary care to provide and maintain a reasonably safe foundation for the pUes. Kirby Lumber Co. v. Dickerson, 42 Tex. Civ. App. 504, 94 S. W. 153. A narrow space close to cog wheels which was fenced off, no one having occasion to go in there except the engineer to oil the machinery, is not a place furnished employees in which to do their work, and the doctrine relating to that duty on the part of the master is not in- volved. Casey v. Penn. Asphalt Pav. Co., 198 Pa. St. 348, 47 Atl. 1128. 39. City of Greeley v. Foster, 32 Colo. 292, 75 Pac. 351; Phoenix Bridge Co. v. Castleberry, 65 C. C. A. 481, 131 Fed. 175. The rule that in the preparation of a place, the doctrine of safe place does not a-PPly. 'w^a^ apphed where em- ployees were engaged in con- structing a new shaft in a mine, excavating and timbering it, and hence the use of a platform staging therein, was a mere incident to the construction of the shaft. How- ever, after the shaft was construct- ed, it was said the rule of safe place would apply. Risker v. Iron Cliffs Co.— , Mich.— , 128 N. W. (Mich.) 747. The general rule was not ap- phed where an employee was in- jured by the giving way of a coal shed, which had been constructed only about a month prior, when only half full of coal, while he was engaged in bracing it. The reason given for not appljdng such rule appears to be that in the absence of any information to the contrary, he had a right to assume the waU was safe, as many reasons beside the avoidance of present danger might exist for putting up the braces. It does not appear that any other reason existed or what rea- sons might have existed. Some- thing would depend upon the character of the bracing. Schmidt V. J. G. Johnson Co., 129 N. W. (Wis.) 657. 40. American Bridge Co. v. Seeds, 75 C. C. A. 407, 144 Fed. 605, 11 L. R. A. (N. S.) 1041; Baltimore & O. S. W. R. Co. v. Hunsucker, 33 Ind. App. 27, 70 N. E. 556; Indiana & C. Coal Co. v. Batey, 34 Ind. App. 16, 71 N. E. 191. But see Pressed Steel Car Co. V. Herath, 110 III. App. 596. §81 Safe Place to Work. 223 the work itself makes the place unsafe or dangerous/^ such as the tearing down of a building; or (c) where the character of the place for safety is constantly changing as the work progresses as a direct result of the servants' labor, ^^ as in blasting, excavating, constructing a building, and the hke. These three exceptions run into each together to a considerable extent and are all based on the same idea, and hence will be treated of in this connection together. 41. The general rule that it is the master's duty to furnish his servant a safe place to work, is subject to the limitation that where the servant is engaged in work the very nature of which is to make the place unsafe, he assumes the hazards arising therefrom, and the master is not required to guard against them. Jacobson v. United States Gypsum Co., 144 Iowa, 1, 120 N. W. 651; Gulf, C. & S. F. R. Co. V. Jackson, 12 C. C. A. 507, 65 Fed. 48; Kennedy v. Spring, 160 Mass. 203, 35 N. E. 779; Armour V. Hahn, 111 U. S. 313, 28 L. Ed. 440, 4 Sup. Ct. Rep. 433; Porter v. Coal Co., 84 Wis. 418, 54 N. W. 1019; Carlson v. Oregon Short Line & N. W. R. Co., 21 Oreg. 450, 28 Pao. 497; Eraser v. Lumber Co., 45 Minn. 235, 47 N. W. 785; Walh- quist V. Maple Grove C. & M. Co., 116 Iowa, 720, 89 N. W. 98; Smith's Admr. v. North Jelieo Coal Co., 131 Ky. 196, 114 S. W. 785; Rowden v. Schoenherr-Walton Min. Co., 136 Mo. App. 376, 117 S. W. 695; Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 615; A. H. Jacoby Co. v. Williams, 110 Va. 55, 66 S. E. 491; Omaha Packing Co. v. Sanduski, 84 C. C. A. 89, 155 Fed. 897, 19 L. R. A. (N. S.) 355; Westinghouse, Church, Kerr & Co. v. Callaghan 83 C. C. A. 669, 155 Fed. 397, 19 L. R. A. (N. S.) 361 ; Morgan Const. Co. V. Frank, 86 C. C. A. 168, 158 Fed. 964; Robichaud v. Men- deU, 74 Atl. (N. H.) 1049. As to such danger the law only requires reasonable care to employ compe- tent men and provide suitable material [Oleson v. Maple Grove C. & M. Co., 115 Iowa, 74, 87. N. W. 736; Bradley v. James H. Forbes Tea & Coffee Co., 213 Mo. 320, 111 S. W. 919; Louisville & N. R. Co. V. Carter, 112 S. W. (Ky.) 904.], and the use of reasonable care to discover and give notice of latent danger. Curley v. Hoff, 62 N. J. L. 758, 42 Atl. 731. And the same rule applies where the work required is to make a safe place dangerous. Norfolk & W. R. Co. V. Gesswine, 76 C. C. A. 214, 144 Fed. 56. 42. American Bridge Co. v. Seeds, 75 C. C. A. 407, 144 Fed. 606, 11 L. R. A. (N. S.) 1041; Fowinier v. Pike, 128 Fed. 991; Bird V. Utica Gold Min Co., 2 Cal. App. 674, 84 Pac. 256; Poorman Silver Mines of Colorado v. Dev- Hng, 34 Colo. 37, 81 Pac. 262; Utica Hydraidic Cement Co. v. Whalen, 117 lU. App. 23; Meehan v. St. Louis, M. & S. E. R. Co., 114 Mo. 224 Mastee and Servant. §§ 82, 83 § 82. Exception as applicable only where work "nec- essarily" renders place dangerous. It was said the exception to the general rule as to the duty of the master to use ordinary care to provide a reasonably safe place to work, made where the character of the work is such that the relative safety of employees necessarily varies from time to time as the work progresses, and the work being done at times renders the place dan- gerous, appKes only where the work being done neces- sarily rendered the place dangerous and not to a case where the danger coidd have been entirely obviated at a shght expense.*' § 83. Application of exceptions to rule. Ballasting track. Where a railroad company in ballasting its track left piles of gravel between its tracks in its yard, it was held an unreasonable time and the exception to the rule stated did not apply.** App. 396, 90 S. W. 102; Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pao. 615; AUen v. BeU, 32 Mont. 69, 79 Pae. 582; CuUy V. Northern Pac. R. Co., 35 Wash. 241, 77 Pac. 202. The duty of caring for the safety of a place or of machinery, where the work nec- essarily changes the character of the place or the machinery as to safety, as the work progresses, is a duty of the servant and not of the master. Kreigh v. Westinghouse, Church, Kerr & Co., 81 C. C. A. 338, 152 Fed. 120, 11 L. R. A. (N. S.) 684; American Bridge Co. v. Seeds, 75 C. C. A. 407, 144 Fed. 605, 11 L. R. A. (N. S.) 1041. Hence, where it is the workmen's duty to shore up or make the place safe as the work progresses, the master's duty is performed when he furnishes suitable material for that purpose. MUlen v. Pacific Bridge Co., 51 Oreg. 538, 95 Pao. 196. It was held, however, that a brakeman upon a freight train is not so connected with the work of improving the yards as to charge him with having assumed the risk arising from the defective condi- tion of the yards resulting from such improvements which causes him injury; and hence the exception to the rule as to the duty of the master to furnish a safe place does not apply in its entirety to servants employed in the construction of buildings and railroad yards. Hurst V. Kansas City, P. & G. R. Co., 163 Mo. 309, 63 S. W. 695, 85 Am. St. Rep. 539. 43. Bamett & Record Co. v. Schlapka, 208 El. 426, 70 N. B. 343. 44. Hurst V. Kansas City, P. & G. R. Co., 163 Mo. 309, 63 S. W. 695, 85 Am. St. Rep. 539. § 83 Safe Place to Wobk. 225 Blasting operations. The duty of the master in respect to furnishing a safe working place was held to apply to workmen engaged in widening a tunnel by blasting. *^ Where the nature of the employment is extremely dangerous, and the conditions continually change by reason of placing and setting off blasts, whereby dangerous conditions arise continually through the acts of a servant, without the knowledge of the master, the employer cannot be held responsible without his fault, and the risks of such dangerous employment are those which the employee assumes in accepting the labor. *^ Construction of bridge. The rule where conditions change from time to time as the work progresses has no appUcation where, in the construction of a bridge, the contractor failed to fasten an appliance called a "traveler" to the false work to prevent it being moved by a wind storm. An employee was injured by the moving of the traveler. The accident, it was said, did not result from changing conditions in the prosecution df the work. ^' Construction of building. It seems needless to state that the rule as to safe place to work is of hmited application.** The obligation of a master to provide reasonably safe places and structures for his servants to ~ work upon, does not oblige him to keep a building which they are employed in erecting in a safe condition at every moment of their work, so far as its safety depends upon the due performance of that work by them and their fellow- servants.** 45. Mason, Hanger & Coleman Const. Co., 240 111. 416, 88 N. B. Co. V. Kennison, 134 Ky. 844, 121 982. S. W. 999. 48. Walaszeweld v. Sehokneeht, 46. Anderson v. Daly Min. Co., 127 Wis. 376, 106 N. W. 1070. 16 Utah, 28, 50 Pac. 815. 49. Armour v. Hatn, 111 U. S. 47. Casey v. Kelly-Atkinson 313, 28 L. Ed. 440, 4 Sup. Ct. Rep. 1 M. & s.— 15 226 Mastee and Servant. §83 Thus, where a truss of a building in process of con- struction fell, injuring an employee, it was held that the master was not liable, since the general rule as to the mas- ter's duty in respect to providing a safie working place, had no appHcation.^" There is no obhgation on the part of the owner of a building in process of construction to so light it that his employees may see their way in going to and from said building, or from one place to another therein. ^^ Where, however, an employee was injiu-ed by the fall of a steel column put in place during the construction of a building, when the beams were being placed or had just been placed upon it, and the cause of the fall was assumed to have been the insecure setting of the column upon its base, it was held the jury might properly find negligence on the part of the master. ^^ In the construction of a building, a temporary floor was laid to provide a place to work on while setting up posts, girders and joists for the floor above. There was a hole in this floor into which plaintiff, a common laborer about the building, fell. It was held a question for the jury whether the master was negligent in leaving the hole in the floor unguarded and not notifying the workman of its existence and whether plaintiff assimied the risk or was guilty of contributory negligence. ^^ The evidence in another case was held sufficient to sustain a finding that the master was neghgent where, in constructing a building, he maintained a passageway from an elevator used to hoist material to the upper story in the building, with short planks laid from longer ones over a space between the girders. The injmy was caused to a 433; Fournier v. Pike, 128 Fed. 51. Murphy v. Greeley, 146 991; Armour & Co. v. Dumas, 43 Mass. 196, 15 N. E. 654. Tex. Civ. App. 36, 95 S. W. 710. 52. Hansell-Eleook Foundry Co. See also Strehlau v. John Schroeder v. Clark, 214 111. 399, 73 N. E. Lbr. Co., 142 Wis. 215, 125 N. W. 787. 429. 53. Merrill v. Pike, 94 Minn. 50. MoElwaine-Riehards Co. v. 186, 102 N. W. 393. WaU, 166 Ind. 267, 76 N. E. 408. § 83 Safe Place to Wobk. 227 mason while passing over it, who fell by reason of their loose condition, to the basement below. '^ Where an employee was injm-ed by a limiber pile falling upon him while engaged in carrying lumber from a pile thereof to a mill in process of construction, the master was not excused, the doctrine that the master's duty in respect to a place made imsafe by the work being per- formed being held not applicable." Construction of pier; part of railroad track. The work of constructing a pier is of that changeable character that the rule of the master's duty in respect to safe place of work is not applicable.^® Construction of tracks. It was said, however, that it is neghgence in a railroad company to leave the spaces between the ties of a railroad track, used for construction purposes, unfilled, and it is responsible for the injury to one of its brakemen caused by stepping between the ties and falling, when coupling cars in the night time, and ignorant of the defect in the track. This was said in reference to a side track of an unfinished road, though it had been completed beyond this point, and the brakeman was engaged on a construction train running over the completed portion of the road." "Where a laborer engaged in constructing a road was injured while upon a construction train by reason of the spreading of the raUs, which defect was due to the manner in which the rails were spiked, one spike only in three ties and none on the fourth, upon a curve, it was said: He assximed greater risk than if passing over a completed road, yet he had a right to expect a degree of care and skQl equal to that ordinarily exercised during the progress of railroad construction." 54. Johnson v. Lindahl, 106 57. Gulf, C. & S. F. R. Co. v. Minn. 382, 118 N. W. 1009. Redeker, 67 Tex. 181, 2 S. W. 513. 55. Hardesty v. Largey Lum- 58. Colorado Midland R. Co. ber Co., 34 Mont. 151, 86 Pao. 29. v. Naylon, 17 Colo. 501, 30 56. Chesapeake & O. R. Co. v. Pao. 249, 31 Am. St. Rep. 335. Hoffman, 109 Va. 44, 63 S. E. 432. 228 Masteb and Servant. § 83 And where a laborer, engaged with others in repairing a track, the use of which had been partially abandoned, and which had fallen to decay, was injured by the con- struction train upon which he was riding leaving the track at a crossing, caused by the space along the rails for the flanges to run in, becoming filled with mud, the effect of a rain the night before, it was said that while the rule is generally applied that where it is the duty of the employee of a railroad corporation, in the course of his work, to ride over the road, it is its duty to provide a track suitable and sufficient for the purpose and to maintain it in good order, it must be considered with some quahflcation where the road has become dilapidated and out of repair, and is in the process of reconstruction, in which work the employee is engaged. It was held the risk was one incident to the natm-e of the emplojmient.*' Fixing place in mine. The rule which requires the master to use reasonable diligence to furnish a reasonably safe place for his em- ployees to work, having no application to those whose duties are to make dangerous places safe, such exception is not changed by the statute of Illinois, and was appHed where a minor was injured in fixing a dangerous place in a 59. Brick v. Rochester, N. G. defendants were liable. Trihay v. & P. R. Co., 98 N. Y. 211. Brooklyn Lead Min. Co., 4 Utah, 60. Kellyville Coal Co. v. Bru- 468, 11 Pac. 612. Where an em- zas, 223 111. 595, 79 N. B. 309. But ployee, engaged in the work of where a timberman entered a mine making an insecure place in a mine for the purpose of timbering it and secure, was Idlled by the fall of a making it secure, and he was injiured mass of rock, it was said: It is the by the fall of a piece of lead while so general rule that it is the duty of the engaged, and it appeared that the master to exercise care to provide a work of timbering, on account of reasonably safe place in which the the character of the rock and soU, servant may perform his service, should have been done as the work But this rule cannot justly be ap- of excavating progressed, which was pUed to cases in which the very not done, and thereby his work was work the servants are employed to more dangerous than he had a right do consists in making a dangerous to anticipate, it was held that the place safe, or in constantly ehang- § 83 Safe Place to Wobk. 229 Land slides. Where -workmen were injiiared while engaged in clearing away a land sHde from a rock coming down the mountain side, it was held the raOroad company was not liable under the general rule of its duty to provide a reasonably safe place to work." Making alterations in electric switch board. The fact that employees in an electric power plant were engaged in making alterations in an electric switch board, did not reheve the master of using such reasonable skiU and care to provide a safe place, as though the apparatus was complete. The facts in this case did not bring it within the rule that where a servant is employed to make a dangerous place safe he assumes the risk.^^ Making cross cut in mine. The rule that a master is not Hable for dangerous and more or less hazardous conditions of the place in which the servant is employed, when such conditions are tem- porary and result from the necessary prosecution of the work, was held not to apply where the injured employee had no part in producing the condition which led to his injury, as where making a cross cut in a mine, near an ing the character of the place for the hazard of the dangerous place safety as the work progresses. The and the increased hazard of the duty of the master does not extend place made dangerous by the work to keeping such a place safe at are the ordinary and known dan- every moment of time as the work gers of such a place, and by his progresses. The servant assumes acceptance of the employment the the ordinary risks and dangers of servant necessarily assumes them, his emplojrment that are known to Finlayson v. Utica M. & M. Co., him, or those that might be known 14 C. C. A. 492, 67 Fed. 507. to him by the exercise of ordinary 61. Maloney v. Florence & C care and foresight. When he en- C. R. Co., 39 Colo. 384, 89 Pao. gages in the work of making safe a 649, 19 L. R. A. (N. S.) 348, 121 place that is known to be dangerous. Am. St. Rep. 180. or in a work that in its progress 62. Martin v. Des Moines E. necessarily changes the character L. Co., 131 Iowa, 724, 106 N. W. for safety of the place in which it is 359. performed as the work progresses. 230 Masteb and Sbbvant. § 83 entry where the employee was at work, it disturbed the face of the entry, causing coal to fall upon such employee.*' Mine; excavating in. A mirier making excavations preparatory to the plac- ing of supporting timbers by other workmen was held not to be engaged in making a dangerous place safe so as to work an assumption of risk.** Mine; unexploded blasts. The rule as to changing conditions was not applied where a foreman, a vice-principal, gave an employee false information with respect to an unexploded blast in a mine.*^ But it was held to apply where it was the duty of the employee injured to ascertain if all the shots had been discharged.** Mine; work in. It was stated that the rule of law declaring the duty of a master in regard to furnishing a servant a safe place to work, is usually applied to a permanent place, or one that is quasi permanent. It does not apply to such places as are constantly shifting and being transformed as a direct result of the servant's labor, and where the work in its progress necessarily changes the character for safety of the place in which it is performed as it progresses. The fore- going was stated in reference to the working in a mine.*^ The exception to the rule that the master's duty in respect to safe place to work does not apply where the work itseK makes the place insecure, or where the con- ditions are constantly changing as the work progresses, 63. Superior Coal & Mining Co. 66. Poorman SUver Mines v. V. Kaiser, 229 lU. 29, 82 N. E. 239, DevHng, 34 Colo. 37, 81 Pa<3. 252. 120 Am. St. Rep. 233. 67. Holland v. Durham Coal 64. Faulkner V. Mammoth Min. & Coke Co., 131 Ga. 715, 63 S. E. Co., 23 Utah, 437, 66 Pae. 799. 290. See also Heald v. Wallace, 65. Allen v. BeU, 32 Mont. 69, 109 Tenn. 346, 71 S. W. 80. See 79 Pae. 582. also Russell Creek Coal Co. v. Wells, 96 Va. 416, 31 S. E. 614. § 83 Sapb Place to Wobk. 231 it was held had no application to mines, where the duties are prescribed by the Miaer's Act (Burns Ann. St. 1901, sec. 7479).'" Moving gravel in pit. The rule that the master must exercise reasonable care to furnish a safe place for his servant to work ia does not apply where the conditions are changing from time to time in the prosecution of the work, and hence a master cannot be held Uable for failure to make a gravel pit safe for employees aU the time, where the natural support of the bank is being constantly removed, and when the chang- ing conditions must be watched and provided against by the workmen themselves.*' Where an employee was injured while engaged in excavating gravel from & gravel bank and loading the gravel on cars, the changing conditions were such that the master was not required to maintain the safety of the place as the work progressed.™ The exception to the rule was held not to apply, as matter of law, where an employee was injiu'ed by the faU of an overhanging bank of earth which was being moved, and it appeared that on prior occasions the servant, representing the master, in order to secure greater safety, had the top of the bank blown off, which was not done in the instance of the plaintiff's injury.^^ Oil box on engine. Keeping free from grease. The master was held hable for injury to an employee who shpped from an oil box upon an engine while using it as a step. The ground of recovery was failure of the mas- ter to keep the oil box free from oil and grease, that such was the master's personal duty.^^ 68. Antiocli Coal Co. V. Rockey, 71. Bradley v. Chicago, M. & 169 Ind. 247, 82 N. B. 76. St. P. R. Co., 138 Mo. 293, 39 S. 69. Village of Montgomery v. W. 763. Robertson, 229 lU. 466, 82 N. E. 72. Houston & T. C. R. Co. v. 396. Alexander, 121 S. W. (Tex. Civ. 70. Culley v. Northern Pa<5. App.) 602. R. Co., 35 Wash. 241, 77 Pao. 202. 232 Master and Seevant. § 83 The question whetlier such condition was or was not the necessary or unavoidable result of the daily use of the engine, was not discussed. It would seem that keeping such box free from grease was a matter of detail and naturally a servant's duty. Repairing bridge. Where an employee was injured while performing ser- vices under the direction of a foreman in repairing a bridge, it was held that the master was not liable for the condition as to safety of the premises, but that the case was within the exception to the general rule as to the master's duty of a place where the work itself makes the place imsafe.^' Repairing building. An employer is not to be held to a rule which will prevent the possibihty of an accident. To have a small hole in the floor, useful for the purpose for which the room is u^ed, and not in the ordinary line of travel, partially unprotected for a few days while changes and repairs are being made, is not evidence of such neghgence as would enable an employee, whose work was in the room and who was aware of the changes being made, to recover for injuries sustained by faUing into such opening.'* Repairing tracks. Where a brakeman employed upon a gravel train, being used for the purpose of hauhng and depositing gravel and material to be used in making general repairs, taking up old rails and relaying new, was injured by reason of a box car jiimping the track, owing to the bad condition of the track, and the question was as to the defendant's duty in providing a reasonably safe track, it was said that it was argued, in effect, that where servants are em- ployed to put a thing in safe condition and good repair it would be inconsistent and absurd to require of the mas- ter to have it in safe condition and good repair for the 73. San Antonia & A. P. R. Co. 74. Wannamaker v. Burke, 111 V. Weigers, 22 Tex. Civ. App. 344, Pa. St. 423, 2 AtL 500. 64 S. W. 910. § 83 Safe Place to Woek. 233 purpose of such employment; and when the seiT^ant has nothing to do with the thing but to repair it, the argument is undeniable; but the court stated that the case at bar was not exactly such a case, but rather the ques- tion was whether it was the duty of the defendant to plain- tiff to have the old track, if so used, iu a reasonably safe and suitable condition to perform the service? The duty of a master in respect to the instruments and means furnished to his servants to perform is the same whatever the relation of the services may be — whether it be to repair or to do any other thing. As the defendant required the plaintiff, ia the work of distributing materials for the work of repairing the track, to use the old track, it should have been reasonably safe for the piirpose.'^ The general rule was held not to apply, but it was within the exception, where an employee was engaged at night in tearing up and relaying a portion of a railroad track which had been undermined by high water, and neghgence was claimed ia that a sufficient number of men were not provided and the ground was covered with obstructions^'* The rule that the master is bound to use reasonable care and skill to furnish his servants safe and suitable instru- ments and apphances to perform the services iu which they are engaged, only appUes where such instrumentahties are placed in their hands for use. It has no appUcation to the safety and condition of the thiag which the servant is employed to repair. Where a servant is employed to put a tldng in a safe and suitable condition for use, it would be unreasonable and inconsistent to require the master to have it in safe condition and good repair for the purpose of such employment. Where a servant is employed to assist ia repairing or opening a railroad which is in a dilapidated condition and out of repair, the master does not owe to him the same duty to furnish a safe road bed as to that portion of the road out of repair 75. Madden v. Minneapolis & 76. Gulf, C. & S. F. R. Co. v. St. Louis R. Co., 32 Minn. 303, Jaokson, 12 C. C. A. 607, 65 Fed. 20N.W.317. 48. 234 Mastee and Seevant. § 83 as it does to a servant engaged in tlie operation of trains upon the road in the ordinary course of business, or in riding upon the road in the course of his employment.^' Sheeting trench. Where employees were engaged in sheeting the sides of a trench in. order to make the trench safe, and one of them was injured, it was held that the master was not ha- ble." Tearing down acid chambers in building. Where a common laborer was injured while in the act of tearing down several acid chambers in a building under the direction of an overseer, it was held, upon the evidence, that the master was not negUgent." Tearing down building. The master's duty in providing a working place does not extend to work which is necessarily dangerous, such as the wrecking of a building. He is not bound to the exercise of ordinary care to discover the danger.*" Temng down wall. No common law liability for an injury to an employee caused by a wall faUing while he was assisting in tearing it down, attaches to the master, when not personally pres- ent, and proper apphances and workmen are furnished, nor does the doctrine of res ipsa loquitur apply. *^ 77. Carlson v. Oregon Short a minor was engaged, that of Line & U. N. R. Co., 21 Oreg. 450, wheeling debris from the building 28 Pao. 497. to a boiler room, where injured by 78. City of Greeley v. Foster, a portion of the building falling 32 Colo. 292, 75 Pao. 351. upon him, was such as to bring 79. Daniels v. Liebig Mfg. Co., him within the rule that a master 2 Marv. (Del.) 207, 42 Atl. 447. in taking down a building is not 80. American Window Glass required to furnish workmen, en- Co., V. Noe, 86 C. C. A. 133, 158 gaged in such occupation a safe Fed. 777; American Window Glass place to work. American Car & Co. V. Arnold, 86 C. C. A. 137, 158 Foundry Co. v. HiU, 226 111. 227, Fed. 781 ; BaUard & BuUaxd Co. v. 80 N. E. 784. Lee's Adm'r, 131 Ky. 412, 115 S.W. 81. Henahan v. Lyons, 201 732. Declaration did not allege such Mass. 269, 87 N. E. 602. facts that the employment in which § 84 Sape Place to Woek. 235 A master was not negligent in failing to provide a safe place to work, where the employee was working in remov- ing the debris from a burned building and was injured by a brick shaft vault, suddenly and without warning, falling. It was apparently safe.*^ Removal of buildings. In the removal of buildings the rule that the master must furnish a safe place to work is of limited apphca- tion.*' Tracks, temporary. In making a temporary track around a washout, rea- sonable care should be exercised to see that it is supported by sufficient ties and the rails laid so that one shall not be materially lower than the other. It should be made reasonably safe for wreckiag cars. The foreman directing such repairs, in making the track safe, represents and is performing duties personal to the master.** IV. Exception Where Place Made Unsafe by Fellow- Servant OR Third Person. § 84. Master ordinarily not liable. The master is not chargeable with the consequences of a place for work made dangerous only by the carelessness and negligence of fellow-servants or by the neghgent man- ner in which they used the tools and materials furnished them for their work, nor is the master bound to give notice of transitory dangers caused by acts of feUow-servants.** 82. Gans Salvage Co. V. Bymes, Coger, 112 N. Y. 614, 20 N. E. 556, 102 Md. 230, 62 AtL 155, 1 L. R. A. 3 L. R. A. 559, 8 Am. St. Rep. 787; (N. S.) 272. Coimors v. Holden, 152 Mass. 598, 83. Walaszewski v. Sehoknecht, 26 N. E. 137; Quebec Steamship Co. 127 Wis. 376, 106 N. W. 1070. v. Merchant, 133 U. S. 375, 33 L. 84. Atchison, T. & S. P. R. Co. Ed. 656, 10 Sup. Ct. Rep. 397; V. Wilson, 1 C. C. A. 25, 48 Fed. 57. Baron v. Detroit & C. S. N. Co., 91 85. Mmer v. American Bridge Mich. 585, 52 N. W. 22; CuUen Co., 216 Pa. St, 559, 65 Atl. 1109; v. Norton, 126 N. Y. 1, 26 N. E. Martin v. Atchison, T. & S. F. R. 905; Deye v. Lodge & Shipley Co., 166 U.S. 399, 41 L. Ed. 1051, Maeh. Tool Co., 70 C. C. A. 64, 17 Sup. Ct. Rep. 603; Hussey v. 137 Fed. 480. 236 Masteb and Sebvant. §84 The master having otherwise performed, his duties, is not required personally to superintend the details of the service, which tend to make the place of work imsafe but may entrust such duty to his employees.** 86. Dill V. Marmon, 164 Ind. 507, 73 N. E. 67, 69 L. R. A. 163. The word place means the prem- ises where the work is to be done and does not comprehend the negli- gent act of fellow-servants by reason of which the place is ren- dered unsafe or dangerous. If the place in which the servant is set to work is not inherently dangerous and will not necessarily or proba- bly become so in the ordinary exe- cution of the work assigned, no special supervision of the master is required, but, by the attention to details of arrangement and exe- cution, the servant is required to guard the place against insecurity. The master, therefore, cannot be held responsible for an accident, the nature of which indicates that it must be attributed to the manner in which an apphance is used or placed by a workman, and hence he is not liable for an accident to a servant resulting from the negli- gence of a feUow-servant in placing an empty truck so near a car track that it was set in motion by a pass- ing car. Haskell & Baker Car Co. V. Przezdziankowski, 170 Ind. 1, 83 N. E. 626, 14 L. R. A. (N. S.) 972, 127 Am. St. Rep. 352. Where an employee, while working in a pit from which coal was elevated to bins above, was injured by the starting of the machinery which elevated the buckets, coal dropping from the buckets upon him, the proximate cause of his injury was not the condition of the place as being unsafe, but the method of performing the work, in improperly starting the machinery. The doc- trine was pronounced that a place which is safe so long as the machin- ery is not in operation, and the only danger to which the employee may be exposed is in starting the ma- chinery, is safe within the meaning of the law. Peterson v. Chicago, R. I. & P. R. Co., 128 N. W. (Iowa) 932. Notwithstanding that by nearly all authority, the master's duty is performed when he fur- nishes a place of work reasonably safe, and is not responsible if such place is made unsafe by the act of a fellow-servant, the Wisconsin court recently has omitted to apply the rule in a case where the facts were that an employee in a trench was injured by the act of another em- ployee in dropping from above a block of wood, which fell upon and injured the former. There was no question but what the trench was a safe place of work. No inherent dangers lurked in the trench itself, or its surroundings. The only dan- ger was that some employee might carelessly do some act such as throwing a stone, dropping a block of wood, or even falling himself upon one engaged in work therein. The opinion however goes upon the ground that the employee who dropped the block was' not the feUow-servant of the injured em- ployee. He was employed by the same master and engaged in the same work; the construction of a §85 Safe Place to Work. 237 § 85. Dangers incident to work. The rule is that in the performance of work of the character of blasting rocks in a precipice, or in the con- struction of buildings and the like, the master, after making the place in the first instance reasonably safe, has no other duty to perform other than in furnishing building. Yet it is said, lie was not engaged in a common em- ployment because the two em- ployees belonged to different crews, each working under a separate fore- man. There is not the slightest warrant for this ruling, in the pre- vious decisions of this court, except possibly Rankel v. Buckstafi-Ed- wards Co., 138 Wis. 442, 120 N. W. 269, 20 L. R. A. (N. S.) 1180, which is not cited. Of aU the courts who have repudiated the so-called department theory, none have been more emphatic or consistent in its repudiation than the Wisconsin court. The cases cited by the learned judge who wrote the opin- ion, as a reference to them will clearly show, do not sustain his conclusion. They are cases where the negligence consisted in preparing the place of work, and not where, after it was prepared, the negligence consisted of some transitory act which might result in injury to one working therein. The block which injured the employee was no part of any structure. It was dropped from a runway above. The man- ner in which the runway was con- structed is referred to, but it seems it is entirely immaterial from the fact that if defectively constructed the injury in no manner was due to Buch defect. The runway did not faE, but the block was carelessly dropped by an employee upon the runway. The decision is also in conflict with another well settled principle in this state and else- where, forcibly stated by the Chief Justice in a dissenting opinion wherein it is stated: "K I under- stand the opinion correctly, it holds by necessEiry implication, that in building operations the master must furnish a safe place to work. It seems to me that this is contrary to the doctrine which has been estabhshed and followed in this state, at least since the case of Peschel v. Chicago, M. & St. P. R. Co., 62 Wis. 338. See also Porter v. S. C. & M. C. Co., 84 Wis. 418, and the line of cases cited in Strehlau v. Schroeder L. Co., 142 Wis. 215, 125 N. W. 429. The prin- ciple established in these cases is briefly that when a master fur- nishes suitable materials to his employees with which to erect a building upon a proper site, he is not liable for injuries resulting to one from perils created by them in the progress of the work. The cases where either by custom or contract it is the duty of the master to furnish a scaffold upon which the employee is to work, manifestly have no application to the present case. As I view this case, the law of safe place to work does not apply at all." Driscoll v. AJlis Chambers Co., 144 Wis. 451, 129 N. W. 401. 238 Master and Seevant. §§ 86, 87 reasonably safe appliances and the employment of com- petent servants. His duty does not require Mm to keep the place in a safe condition at every moment of the work so far as its safety depends on the due performance of that work by a servant and his fellow-servants. This rule was applied where, after a blast, the foreman sent a workman to clear a blasted spot and omitted to remove, or notify the workman to remove, a threatened piece of rock which fell upon him. Such foreman, as to such acts, it being matter of detail, was their feUow-servant." § 86. Duty of warning where exposed to danger from doing of work by other servants. It was held that, though the place where a servant is set to work in itself is safe, but he is exposed to danger from the doing of work by other servants, not connected with his own, the master is in duty bound to employ the neces- sary means to give him timely warning of such danger, and that such duty is personal to the master.^* § 87. Unsafe condition created by third person. A master is not hable for a defect in his premises created by a third person without authority, where the defect has not existed a sufficient length of time for the master to be chargeable with knowledge thereof.^' However, he is not relieved from UabiUty to his em- ployee injured by such defect, if he knew or was charge- able with knowledge of the defective condition of the place so made dangerous.'" Nor is the master Uable where the defect is caused by the act of his contractor. The master, however, is not thus excused where notwithstanding the contract he owes the duty of maintaining a safe place.'^ 87. Perry v. Rogers, 157 N. T. S. W. 602, 62 L. R. A. 474, 97 Am 251, 51 N. E. 1021. St. Rep. 570. 88. Western Elec. Co. v. Han- 90. Barto v. Iowa Tel. Co., 126 selmann, 69 C. C. A. 346, 136 Iowa, 241, 101 N. W. 876, 106 Am. Fed. 564, 70 L. R. A. 765. St. Rep. 347. 89. Chandler v. Kansas City 91. Toledo Brewing & Malting Missouri Gas Co., 174 Mo. 321, 73 Co. v. Boscli, 41 C. C. A. 482, 101 Fed. 530. §§ 88, 89 Safe Place to Wobk, 239 The doctrine of safe place to work has no application where the place was safe and is merely made unsafe by the negligent act of an employee of a third person.'* As result of malicious act of trespasser. It was held that a railroad company is not liable for the death of a fireman resulting from a defect in its track caused by the wanton and mahcious act of a trespasser, unless it could have prevented the consequences thereof by the exercise of reasonable diligence. The bxrrden of proof changed, where the defect was admitted, to the defendant, to show the defect was caused by a trespasser and that the consequences could not have been prevented by the exercise of reasonable care.^' § 88. Doctrine of Kentucky court. Seemingly the Kentucky court is not in accord with the foregoing exception, as it held that where a place of work was made dangerous solely by the act of a feUow-servant, the master was not thus reUeved from responsibihty. The facts were that an employee, in digging a hole for a pole, left an imexploded dynamite stick in the hole, and another employee, in completing the work, not informed as to the existence of the explosive, was injured by its exploding. The master was held hable although he had no knowledge of the defect and danger.'* § 89. True doctrine stated. It seems upon a review of the cases which are subse- (luently referred to herein as illustrations of this particu- lar branch of the subject, that courts oft times have failed to recognize the distinction between the use of premises and appliances and their condition as fiumished or main- tained by the master for use by his employees. This distinction, however, was clearly and forcibly expressed 92. Penner v. Vinton Co., 141 94. Harp v. Cumberland Tel. & Mich. 77, 104 N. W. 385. Tel. Co., 25 Ky. L. Rep. 2133, 80 93. Marcom v. Raleigh & A. S. W. 510. Air Line R. Co., 126 N. C. 200, 35 S. E. 423. 240 Master and Seevant. § 89 and illustrated by an able court many years ago, and much of confusion would have been avoided if it bad been more generally followed. Thus it was said: "The negligent use by an employee of perfect working machinery will seldom be adjudged a breach of the master's duty of providing a safe place for his employees. Such a construction would make any neghgent misplacement of a switch, any colli- sion of trains, even any negligent dropping of tools about a factory, a breach of duty of providing a safe place. The true idea is, that the place and instruments in themselves must be safe, for this is what the master's duty fairly compels, and not that the master must see that the negh- gent handling by an employee of the machinery shall not create danger." ^^ In those jurisdictions where the employees whose negligence creates the condition of unsafety in the maimer of the use of the premises, under the rule of feUow- servants prevailing therein, either at common law or by force of a statute, directly represent the master, the latter being chargeable with their neglect or omission, then the master is properly held responsible for the reasonable safety of his premises, though unsafety is the result of their improper use, and it should be noted in referring to the nimierous instances given herein, that where the habUity of the master has been determined, it has generally been so determined upon the groimd that the condition was created by one clothed with the exercise of a personal duty of the master. Principle not followed. A car repairer was injured while repairing a car on a repair track by reason of a leaning car with others being moved on another parallel track, striking a car on the 95. JenHns v. Richmond & D. ing a train had broken in two and R. Co., 39 S. C. 507, 18 S. E. 182, part of the cars were standing upon 39 Am. St. Rep. 750. The negli- the track, and that those in gence charged was that the em- charge had failed to signal the ployee was not ftirnished a safe approaching train upon which the place to work, in this, that the track plaintiff was employed, was obstructed by cars, it appear- <§ 90 Safe Place to Wobk. 241 repair track which was placed at the end of the repair track so that it came close to cars moving on such other track, which car was thus moved with sufficient force to cause other cars between it and the one upon which such employee was at work, to move, and one of which to strike the car upon which plaintiff was at work, causing it to fall and injure him. It was held that sufficient appeared from which a jury were justified in finding that there was a failure of duty on the part of the defendant in providing such employee a reasonably safe place in which to perform his sendee.'® The place where the injured employee was at work was eminently safe, unless rendered unsafe by the manner in which he had supported the car upon which he was at work. It was otherwise rendered unsafe only by the act of other employees in the manner of operating cars. If the cars had been properly operated, or if the employee had been properly warned there was no danger to him. It may be that the master was hable to him for his injuries. But if so, not upon the ground of failure to exercise reai- sonable care to furnish a reasonably safe place, but that, under the rule prevailing in that state, he was responsible for the maimer in which his servants used a safe place or safe apphances, or in permitting the use of an improper appUance (a leaning car) or in failing to properly warn such employee. § 90. Length of time unsafe condition exists as charging master with notice. As stated with respect to a place made unsafe by the act of third persons, that the master may be liable when such condition has remained a sufficient time to charge him with notice, so the master may be liable where the unsafe condition has been created by his servants in the use of his premises, who are fellow-servants of one injured by reason of their acts or omission, where continued for 96, St. Louis, A. & T. H. R. Co. V. Holman, 155 lU. 21, 39 N. E. 573. 1 M. 4 S.— 16 242 Master and Servant. §§91, 92 sueli a length of time, as where dangerous obstruetiong have been placed upon or near a track by such servants. It woidd be unreasonable to hold that a master, his duty being only to furnish a reasonably safe place in the first instance, or rather to exercise reasonable care to that end, but also to the exercise of the same care to maintain it in such condition, should be excused where he had knowledge or was chargeable with knowledge of the condition of unsafety, from the fact that it was created in its use by its employees. The principle more properly appUes to temporary dangers occurring in use. Stated by a learned court: "The defendant had furnished a good road bed and in this respect had done its duty in f lu-nishihg a safe place. It was rendered unsafe temporarily by the act of a fellow-servant. In order to bind the defendant, actual notice of the obstruction must be shown, or it must be shown to have existed for such a length of time that the law wiU imply notice." ^^ This was said in reference to a wheel barrow left near the track. § 91. Permanent structures. With respect to permanent appliances or structures, the principle referred to has no application, as in case of poles or structures erected so near a track as to be neces- sarily dangerous. In such cases an employer may not be hable on the ground that as to such conditions he has the right to exercise his own judgment and only the question of assum.ed risk is involved, including instruction and warning, or, as held in some jurisdictions, he may be hable on the ground that the place is made unnecessarily danger- ous by such structures. The mere fact that they were erected by fellow-servants is not involved. § 92. Applications of rule. Bridges, construction of. Where the superintendent of the work of constructing a new bridge over the Mississippi river over an old one, 97. Wickham v. Detroit United Railway, 160 Mich. 277, 125 N. W. 22. § 92 Safe Place to Woek. 243 was thrown from an elevated portion of it and injured, and it appeared he gave all the orders and instructions, and that the immediate cause of his injury was the negUgence of a feUow-servant in the improper handling of plank that was being hoisted, there was no liability of the master on the ground of failure to furnish a safe place to work, or in failing to supply sufficient help.^^ Building, construction of, fall of masonry. It was held that a corporation, in building a structure composed in part of brick work and in part of wood work, was not responsible for the fall of the masonry upon a carpenter, whereby he was killed, where due care was employed in selecting the mason and the defect was caused by a mistake in judgment of such mason, who was well skilled in his business. Such carpenter and mason were fellow-servants. The facts were that the defendant was building a magazine to store ammunition. The mason built an arch for the structure, and, after its completion, he pronounced it safe to remove the props which supported it temporarily, and while so engaged it fell injuring the carpenter.'^ Building, construction of; protection from material falling from above. It was a question for the jury whether an employer had performed his duty as to keeping the place of work rea- sonably safe, where an employee in setting tUe ta a build- ing of several stories under construction, was injured by a heated rivet faUing upon him from above, the particular neglect being a failure to cover the floors of the building above such place of work, that is placing of boards two or three inches apart. ^^ 98. MoKenna v. Chicago, M. & v. City of St. Joseph, 104 Mo. 114» St. P. R. Co., 92 Minn. 508, 100 16 S. W. 397, 24 Am. St. Rep. 317. N. W. 373, 101 N. W. 178. 100. Pioneer Fireproof Const. 99. Keith v. Walker Iron & Co. v. HoweU, 189 lU. 123, 59 N. E. Coal Co., 81 Ga. 49, 7 S. E. 166, 535. SeeStrehlauv. JohnSchroeder 12 Am. St. Rep. 296. See ShorteU Lumber Co., 142 Wis. 215, 125 N. W. 429. 244 Master and Seevant. § 92 Building, tearing down. Where an employee was injured by the negligent man- ner in which another employee attempted to take down an old building, it was said: "The employer is not hable upon the groimd of placing a servant to work in a dan- gerous place without instructions, if the place in which the work was done was safe and proper, and the only negligence was that of a fellow-servant of such employee in. the manner of doing the work."^"^ Car, failure to block. A railroad company was not liable for neghgence in faiUng to block a car upon a siding, where such car was securely braked, nor for failure to provide a safety switch, where such car was evidently, by the force of a heavy wind, driven on to the main track causing the death of an engineer. It was said the failure to block the car was the omission of a feUow-servant, that the duty of the company was to furnish only a reasonably safe track and apphances.^"^ Car, loading. The duty to furnish a safe place to work, which an express company owes its servants, employed on its cars, extends only to the construction and equipment of the car. The loading and manner in which the material is placed in. the car is a matter properly delegated to serv- ants.'*' Car, support while being raised. The jacking of the end of a raihoad car for the purpose of repairing the trucks, is not a part of the master's duty of providing a reasonably safe place to work, but a part of the duty of the servants making the repairs. ^"^ 101. Connors v. Holden, 152 Page, 29 Tex. Civ. App. 489, 68 Mass. 598, 26 N. E. 137. S. W. 528. 102. Illinois Cent. R. Co. v. 104. Moit v. Illinois Cent. R. Wooley, 77 Miss. 927, 28 So. 26. Co., 82 C. C. A. 430, 153 Fed. 103. WeUs, Fargo & Co. v. 354. § 92 Sai'b Plage to Wobk. 245 It is stated in respect to the furnishing of a safe place to "work, that it is the duty of the master to see that the servant is not unnecessarily exposed to danger in doing his work, and hence if the master neghgently gives an order in obeying which the servant is exposed to danger, which he would otherwise have not encountered, the master may be held Uable to such servant for an injury suffered by him. This was said in reference to a direction given by the foreman for an employee to set up a keg on the comer of a car and put a block upon it, and while in the attempt the car which was held up by jacks feU upon the employee injuring him. Evidently it was considered that the unsafe method or condition was created by a vice principal, not a fellow-servant."^ Car trucks, failure to block. The master was held not liable for the act of fellow- servants faihng to block trucks removed from under a car so as to prevent them from rolling on to the track and thus ooUiding with a car. The master owed no duty of inspection in such a case."^ Car wheels, moving in shop. The general rule was appUed where the place orginaUy safe was made unsafe by the maimer in which a mere boss, a feUow-servant, directed the work of moving wheels to be done."^ Drain, covering not placed. An employee of the defendant removed a loose plank in the floor which was used as a cover for a drain beneath it, in the performance of his duty in washing the floor to permit the waste to go into the drain, but he neglected to replace the plank and another employee stepped into the hole and was injured. Such neglect was in the use and operation of the appUance furnished by the master, and 105. Yarber v. Chicago & A. 107. Richmond Locomotive R. Co., 235 lU. 589, 85 N. E. 928. Works v. Ford, 94 Va. 627, 27 106. Connolly v. North Jersey S. E. 509. St. R. Co., 76 N. J. L. 1, 69 AtL 487. 246 Master and Servant. § 92 was not in the construction or maintenance of reasonably safe place for the servant to work, and hence, being the neghgence of a co-servant, the master was held not liable, lo^ Floor, hole in; cover not placed. The act of the employer's servants in leaving a hole partially uncovered or the covering insecurely fastened near where a foreman in the boUer room was attending to his duties, rendered the place unsafe, and their neglect was chargeable to the employer.^"' Floor, slippery condition of. While the master, having provided a safe place to work, is not Uable to a servant though the neghgence of serv- ants making the place unsafe, yet where such condition has taken place and the master has failed to take precau- tions to guard against it, and the master ought to have known of it in time to prevent the injury that happened, and did not remove it, it constitutes a breach of duty. The floor where an employee was reqviired to work became sHppery from oil dripping upon it from a shaft from Saturday noon until Monday morning, and a dripping pan had not been provided to prevent it."° Floor, accumulation of articles thereon. Where employees in a mill permitted articles to accumu- late, when not in use, on the floor and there remain for two weeks or more, and there was a place provided by the employer for their storage, the employer was not hable for iujm'ies to one of such employees, who was injured in falling from stumbhng against such articles. ^^^ Gangway, obstruction. Where a gangway became obstructed by the act of fel- low-servants, during the temporary absence of an em- 108. Stewart v. International 110. Leazotte v. Jackson Mfg. Paper Co., 96 Me. 30, 51 Atl. 237. Co., 74 N. H. 480, 69 Atl. 640. 109. Frye v. Bath G. & B. 111. Devlin v. Phoenix Iron Co., 94 Me. 17, 46 AtL 804. Co., 182 Pa. St. 109, 37 Atl. 927, § 92 Saj-b Place to Work. 247 ployee, and he stumbled over it and was injured, sueli ob- struction being known to tbe foreman, the master was not reheved from habihty on the ground that the obstruction was created by a fellow-servant. ^^^ Guard to gateway on vessel not secured. Where the stewardess upon a vessel was injured by reason of the raiUng upon the deck of the vessel giving way because not properly adjusted or put in place by employees who were charged with such duty, its use and purpose be- ing to operate as a sort of gate across the gangway where passengers and freight were received and discharged, and it appeared the raihng was so adjusted as to open and close, and when the stewardess was leaning against it, it gave way owing to the failure of such an employee to properly secure it, whereby she feU into the water, it was held that she could not recover; that her injm-ies were due to the carelessness of her fellow-servants."' Hammer on ladder steps. It cannot be said that the mere placing of a hammer on the steps of a ladder, which fell from the movement of the ladder, was a failure of duty on the part of the master in respect to the place of work of the employee."* Hatchway on vessel left open. It was held that the neglect of another employee in leaving a hatchway of a vessel open, whereby an employee was injured, was not the fault of those servants who were employed to fvumsh and maintain a safe place, but of those engaged with the deceased in making use of a place admittedly safe."^ It not being usual to close the hatch upon a vessel after the day's work was done, a master was not hable for the injuries sustained by a servant in faUing through 112. Deering v. Baxzak, 227 114. Fay v. Wilmarth, 183 111. 71, 81 N. E. 1. Mass. 71, 66 N. E. 410. 113. Quebec Steamship Co. v. 115. Baron v. Detroit & C. S. Merchant, 133 U. S. 375, 33 L. Ed. N. Co., 91 Mich. 585, 52 N. W. 22. 656, 10 Sup. Ct. Rep. 397. 248 Master and Sebvant. § 92 the hatchway while returning from supper from the fact that a co-employee had removed the lamp hanging at the hatch. "« Hatchway on vessel, manner of removing. The exception stated and applied where an employee was injured by the negligent manner in which a hatch to the hold of a vessel was attempted to be removed, causing it to fall on hiTn while at work therein."' Hatchway uncovered in passagew;ay. It was stated that an inexperienced person upon his going to work for the first time through a dark passageway may assume that there are no latent dangers, and hence does not assume the risk of injury from uncovered hatch- ways therein."* Hatch between decks. It was held a duty personal to the master to see that the chain locker hatch in a dark place upon a vessel, between the decks, was closed at such times as stevedores are to perform their work of stowing away the cargo. It was not a hatch for the usual stowage of cargo, such as steve- dores must at their peril look out for and are presumed to know about. "^ Iron plate placed on end. The question of the master's neghgence was held for the jury where an employee was injured while passing through an alley by a large iron plate falling, which for a long time had stood on end nearly evenly balanced, so that sUght force would cause it to topple over.^"" Lighting, failure to use, means provided for. Where a master has done his whole duty in providing the proper means of hghting the place in which his 116. The Victoria, 13 Fed. 43. ger v. Drysdale, 69 Kan. 119, 76 117. Hussey v. Coger, 1 12 N. Y. Pao. 441 . 614, 20 N. E. 556, 3 L. R. A. 559, 119. The Helios, 12 Fed. 732. 8 Am. St. Rep. 787. 120. Riley v. Cudahy Packing 118. Soh-srarzchild & Sulzber- Co., 82 Neb. 319, 117 N. W. 765. § 92 Safe Place to Wobk. 249 employees are to work, lie is not liable for the failure of co- employees as between themselves to avail themselves of the means of lighting at hand.^" Where a master had furnished all the appliances necessary for the Ughting of a mill in the proper conduct of his business, and had committed to a competent elec- trician the duty of operating those appliances, neghgence cannot be charged to him if the electric Ughts are turned off thereby rendering the place where an employee is working unsafe. Such turning off of the Kghts was of a class of risks incident to the daily conduct of the business, one wherein a servant was intrusted with a function per- taining to a customary operative detail, and hence not the negligence of the master in failing to furnish a safe place for the servants to work.^" Lumber piles, steps on. Where a scaler in defendant's employ was injured by the breaking of steps to a lumber pUe, such steps being made by an extension of the boards in the pUe at conven- ient distances apart, and it was alleged that the servant who constructed the pUe had selected for such purpose one board that was weak from defects, it was held, upon demurrer, that the complaint stated a cause of action. ^^' Metal piece placed over machine. Though a piece of metal was placed over a machine by a fellow-servant, which rendered the place of work of 121. Foster V. International Pa- able material and a servant selects per Co., 183 N. Y. 45, 75 N. E. 933. such therefrom as may be unfit.) 122. MUler v. Centralia Pulp & Benzing v. Steinway did not in- Water Power Co., 134 Wis. 316, 113 volve the construction of a scaf- N. W. 9.54, 13 L. R. A. (N. S.) 742. fold, but rather the direction to use 123. The court seemed to con- a completed platform under an sider the case as analogous in assurance that it was safe. Fraser principle to those cases where de- v. Red River Lumber Co., 42 Minn, fective ladders and scaffolds are 520, 44 N. W. 878. Upon a subse- involved; citing Benzing v. Stein- quent appeal it was held that the way, 101 N. Y. 547, 5 N. E. 449, defendant was not liable. Fraser and other cases. (In such cases the v. Red River Lumber Co., 45 Minn, master is not liable ordinarily if he 235, 47 N. W. 785. has furnished sufficient and suit- 250 Masteb and Sebvant. §92 another servant unsafe, yet it having so remained for some time, the master was chargeable with knowledge thereof and liable for injury to an employee occasioned by its insecure position. ^"^ Mill, removal of belt. The rule of furnishing a safe place to work is not appU- eable where a servant was directed by the superintendent of a mill to take off a belt, and to slow down the engine, where he stopped the engine but it was started before the servant got the belt wound up and out of the way. Neither does the rule of promise to repair apply. The neghgence, if any, was that of a fellow-servant. ^^^ Mine, direction of work. If the place wherein a miner works, was in the first instance reasonably safe, and was afterwards rendered unsafe by the neghgent manner in which the mining com- pany's boss directed the work therein and the miner was injured thereby, the company is not liable where the miner and mining boss were fellow-servants.^^' Mine, lashing cable. The California statute does not impose a positive per- sonal obhgation on persons and corporations operating mines to see that timbers longer than the buckets are lashed to the cable, so as to render such persons or corpo- rations Kable for injuries resulting from a failure to lash such timbers. ^^' Mine, lowering planks. It was held a question for the jtiry whether the super- intendent of a mine ought to have anticipated, in giving an order for men to carry plank down a stairway in a mine, that in some manner the planks woidd get beyond control 124. Kolodrianski v. American 126. Russell Creek Coal Co. v. Locomotive Co., 29 R. I. 127, 69 Wells, 96 Va. 416, 31 S. E. 614. Atl. 505. 127. Manning v. App. Consoli- 125. Dwyer v. Nixon, 47 C. C. dated Gold Min. Co., 149 Cal. 36, A. 666, 108 Fed. 751. 84 Pao. 657. § 92 Safe Place to "Wobk. 251 and come in contact with employees in a lower part of the mine, thus making their place of work which was otherwise safe, unsafe. It was said the question of feUow- servants was not involved. ^^^ Passage way; material thrown from building. An employee was injured while passing along an aUey way by a piece of broken asphalt flooring being thrown from an adjacent building and striking him. It was thrown by other employees. The master's neghgence was predicated upon the ground that he directed his workmen in taking up the flooring to throw the refuse out in the manner it was thrown, and that in so planning the work, a duty he could not delegate so as to reUeve him from UabUity, he added a new and extraordinary hazard after the injured employee entered his employment, with- out giving him any notice or warning thereof. It was held the master was liable. ^^* Pit; plank covering unfastened. It being customary and necessary at times to cover a pit in which an employee stood at times in performing his work at a machine, for him to stand upon when per- forming his work when not in the pit, and the carpenter whose duty it was to replace the floor which consisted of single planks, having so replaced them without nailing or otherwise fastening them, whereby one of the planks sHpped off the joist, resulting in injury to such employee, it was held that the neghgence was that of the carpenter who was a fellow-servant, notwithstanding the superin- tendent had promised to furnish lumber to make the flooring aU in one piece and had failed to do so. The material on hand was sufficient for the purpose if the floor had been properly naUed.^^" 128. Jensen V. Commodore Min. elair & Co., 137 Iowa, 130, 114 N. Co., 94 Minn. 53, 101 N. W. 944. W. 612. 129. Schminkey v. T. M. Sin- 130. Nemier v. Kiter, 179 Pa, St. 557, 36 Atl. 335. 252 Mastee and Seevant. § 92 Pushing stack of doors on employee. It seems that the negUgence of fellow employees in pushing a stack of doors over, on to another employee, was held neghgence imputable to the master, and whether he could have foreseen such neghgent act was immate- rial.!" Round house, moving engine in. Where an employee was injured while cleaning an engine m a round house, and another employee ran an engine into the one upon which the former was working, causing him injury, the master was held Kable on the groimd of neglect of duty in fumSshing a safe place to work, although the place was only temporarily imsafe, and made so by the act of feUow-servant.^^^ Shunting cars ; improperly controlled. The place of work is rendered unsafe where a railroad company permits detached and imperfectly controlled cars to be shimted upon tracks running into a repair shop, in such a manner that cars, although not intended for the shop, are hable to enter without warning and endanger the hves of employees therein.^'* Stones piled upon soft ground. A servant was permitted to recover by reason of his working place being made dangerous by the piling of large stones upon the soft groimd which fell injuring him.i'* Switch left open. A switch neghgently left open is not a defect in the road bed for which a person thereby injured can recover 131. Texas & N. O. E. Co. v. & W. R. Co., 151 N. Y. 579, 45 Barwick, 50 Tex. Civ. App. 544, N. E. 1028. IIOS. W. 953. 134. Peter & Melcher Stone 132. MuUin v. Northern Pao. Works v. Green, 25 Ky. L. Rep. R. Co., 38 Wast. 550, 80 Pac. 814. 946, 76 S. W. 844. 133. Doing v. New York, O. § 92 Safe Place to Wobk. 253 from the company on an allegation of failure to maintain its road bed in safe condition.^'* Leaving a switch open on a spur track upon which logging trains were operated, where such was the custom, known to an employee thereon, who was injured in a collision with his train and a box car on such track, was held not to be negligence.^'® Temporary staging for unloading vessel. Where an employee in unloading a vessel was injured by the insecure manner in which the longshoreman built a staging, which was a temporary means improvised by them for their own convenience, and the claim was made that the master failed in his duty of providing a safe place for work, it was said that the place which the master furnished was the ship itself, constructed in the usual way, and which became unsafe, not by reason of any carelessness or negUgent plan or manner of construction but solely from the way the longshoreman did their work.^^' Tracks; ashes dumped on. It was held a brakeman could not recover for injuries received through being thrown in front of a moving train by stumbling over a pile of ashes wrongfully dxunped be- tween the rails by a fireman. The fireman and brakeman were feUow-servants and so also were the section men whose duty it was to remove them. The defendant had furnished a good road bed, and in this respect had done his duty in furnishing a safe place. It was rendered unsafe, temporarily, by the act of a fellow-servant. In order to bind the defendant, actual notice of the obstruc- tion must be shown, or it must be shown to have existed for such a length of time that the law wiU imply notice. 135. Pleasants v. Raleigh & A. R. & N. Co., 64 Oreg. 188, 102 Air Line R. Co., 121 N. C. 492, Pac. 796. 28 S. E. 267, 61 Am. St. Rep. 674. 137. Hogan v. Smith, 125 N. 136. Abel V. Coos Bay, R. & E. Y. 774, 26 N. E. 742. 254 Masteb and Servant, §92 Neither was shown, and the judgment for the plaintiff was reversed without ordering a new trial. ^^* Tracks ; cars left close to another track. Where a brakeman was brushed from the sides of a car by contact with a caj standing on a side track too close to the main track, and it appeared that such car was placed thereby another train crew, it was held that an instruction leaving the question of defendant's negUgence to the jury was improper. The act of leaving the car close to the main track was that of a fellow-servant of the brakeman, for which the defendant was not responsible.^'* Where a car was left on a track dangerously near another track upon which employees were required to oper- ate trains, and an employee on one of such trains was injured by contract therewith, it was held that the proximate cause of the injury was the act of fellow-servants in leaAdng the car in that position, i*" Where an employee acting as a brakeman was injured while descending a car upon its side ladder, by coming in contact with a car which was wider than the ordinary car, and standing on a side track used for storing cars, and which track was parallel with the main track, it was held that the defendant did not owe it as a duty to the plain- tiff to change the position of its tracks or to discontinue the use of cars of such width, or to make a change in its custom of storing these and other cars upon the side track; and therefore, in a legal sense, the defendant was guilty of no breach of duty and of no negUgence towards him. The plaintiff assumed the risk arising from these things."^ A brakeman was killed while on the 'engine steps by contact with a car on a spur too near the main track. The negUgence aUeged consisted in the construction and main- tenance of the side track used for storing loaded cars, hav- 138. Loranger v. Lake Shore & 140. Daeey v. Old Colony R. M. S. R. Co., 104 Mict. 80, 62 Co., 153 Mass. 112, 26 N. E. 437. N. W. 137. 141. Content v. New York, 139. Schaub V. Hannibal & St. N. H. & H. R.Co., 165 Mass. 267, J. R. Co., 106 Mo. 74, 16 S. W. 924. 43 N. E. 94. § 92 Sate Place to Wobk. 255 ing a dangerous grade, and in failing to provide suitable means to secure such loaded cars on tlie said track. It was held the receiver of the road was negHgent in the respect named, and Uable.^*^ Tracks; cars, from manner unexplained, moved from spur to main track. Where an unattached car, left at night on a side track near a railroad station, was in some manner moved upon the main track, obstructing it, and in a coUision with a train a brakeman was injured and the court assumed that the only reasonable inference from the proven facts was that it was moved by the force of the wind, it was held that neghgence on the part of the company did not appear, it appearing that it was the duty of the station agent to see that the main track was kept unobstructed. Even if he was derelict in his duty (which the evidence did not show) he was a feUow-servant of the injured brakeman. ^^' Where a fireman was injured by coUision with a car which had either from its own weight, or by force of the wind, moved from a side track on to the main track, and there was some evidence tending to show that the brakes were defective, it was held the company was hable upon the ground of failure in furnishing an unobstructed track. 1*" Tracks ; derrick left near. Where it appeared that a railroad company suffered a derrick, not actually in use for the pm-pose of its busi- ness, to remain for an imreasonable length of time on land within its control, in such a position by the side of the track as to be in danger of being thrown down by ordi- nary natural causes, and would, if it fell, interfere with the safe passage of trains, and it did fall, whereby a brakeman upon a train was injured, it was held that the company was 142. Continental T. Co. of Co., 69 Wis. 188, 31 N. W. 104, 33 N. Y. V. Toledo, St. L. & K. C. R. N. W. 433. Co., 86 Fed. 929. 144. Henry v. Wabash West- 143. Toner v. C. M. & St. P. R. ern R. Co., 109 Mo. 488, 19 S. W. 239. 256 Masteb and Servant. § 92 liable upon the distinct ground that the injury resulted from neglect in not removing the derrick, or in not guard- ing against the danger of allowing it to remain, even though it was put up by other servants of the corporation, and independently of their neghgence.^" Where a derrick was placed near a track for the use of shippers, and the arm of the derrick, to which was at- tached a hook, swung over the track, injuring an employee who, in the performance of his duties, came in contact with it, it was said that the duty of the master was to place such an implement under the charge of a competent servant, charged with the duty of seeing that it was properly used and properly secured when not in use, and there being absence of proof that the derrick in question was so placed in charge of a competent person, the jury were justified from the evidence in finding the defendant negligent.'** Tracks ; pit left uncovered. Where an employee of a railroad company fell into a pit in the track, while in the act of coupUng cars, which was left uncovered by other employees who were or had been making repairs of an apphance located in such pit, it was held that his injuries were caused by the negUgence of his feUow-servants in making a place which was safe, unsafe by their negligence.'*' Tracks ; staging close to. Where the timber of a temporary scaffold which was constructed around a tank for a purpose connected with the repairing of the tank extended so close to the track as to brush a brakeman from the ladder of a passing car, it was held that, in view of the mere fact that the timber was placed there by a fellow-servant of the brakeman, this would not bar his recovery if the company knew it was 145. Holden v. Fitctburg R. P. R. Co., 2 S. Dak. 422, 60 N. W. Co., 129 Mass. 268, 37 Am. Rep 907. 343. 147. Filbert v. Delaware & 146. Gates v. C. M. & St. H. C. Co., 121 N. Y. 207, 23 N. E. 1104. § 92 Sai'b Place to Woek. 257 there, or in the exercise of proper care ought to have known of it. It was further held, in view of the evidence that it was there the day before and was so near to a passing train as to brush the screen upon the cab of the engiae, that the defendant was chargeable with notice. ^^^ Tracks; ties piled near. Where the plaintiff was one of a gang of men unloading ties from cars and pUing them near a side track, and another gang loaded them on cars on the side track, differ- ent gangs working day and night, and the plaintiff, while pushing a loaded car by one of the piles left standing by the night gang, was injured by the fall of such pile, it was held the company was negUgent in failing to adopt reasonable precautions for the protection of the men who were engaged in imloading cars.^*' Trap door left open. The question of negligence of the master in not pro- viding a safe place for work was for the jury where an employee operating a machine, who had been so em- ployed about four months, was injured in falUng into a hole in a dark passageway, the trap door being left open by a feUow-servant, it appearing that he used the passage- way frequently, was using it at the time to get oil for his machine, and he testified he never had known of the existence of the trap door. It was said it could not be said the servant was neghgent in leaving the trap door open, xmguarded, if no guards were furnished by the defend- ant."" The maintaining of a trap door in the floor of a hallway in a manufacturing estabhshment as a necessary means of reaching the cellar, where aU the employees have knowledge of its existence and use, and only one of them having occasion to use it, who has strict orders always to 148. Texas & P. R. Co. v. 1087. See 87 Tex. 339, 27 S. W. Hohn, 1 Tex. Civ. App. 36, 21 S. W. 60, 28 S. W. 517. 942. 150. Johnson v. Field-Thurber 149. Texas & N. 0. R. Co. v. Co., 171 Mass. 481, 51 N. E. 18. Echols, 25 S. W. (Tex. Civ. App.) 1 M. & S.— 17 258 Masteb and Servant. '§ 92 close it after Mm, is not negligence in the proprietors towards the workman, although it be without any device for keeping it closed and the hallway be imperfectly lighted. 1" The maintenance of an opening in the floor of a cotton mill, as a means of access to a well underneath, is not neghgence on the part of the owner, when he has provided a cover therefor, strong and safe when ia place, and given orders that it be kept in place. "^ Trench; failure to warn employee in, of approach of car. The rule that the master's duty to provide a safe place for his servants to work in cannot be delegated, has no appUcation to a case where the place is not inherently dangerous, but is hable to be rendered unsafe, as by the sudden approach of a street car over which the master had no control, causing injmy to a laborer digging a ditch in the street in which to lay a gas main."' Trench; raising pipe in. The evidence in this case was held insufficient to show neghgence on the part of the master. An employee was injured while in a trench assisting in laying a large pipe therein, and some other workmen, but not of the same crew, neghgently pulled a rope raising the pipe causing injury."* Triangle made by mate. It was held the owners of a coasting vessel were not Mable for injmies occasioned a seaman on board the ves- sel, wMle in port and in command of the mate, through the breaking of a triangle on which the seaman was sitting scraping the mast, when it appeared they had furnished 151. Pawling v. Hosldiis, 132 163. Gereg v. Milwaukee Gas- Pa. St. 617, 19 Atl. 301, 19 Am. light Co., 128 Wis. 35, 107 N. W. St. Rep. 617. 289, 7 L. R. A. (N. S.) 367. 152. Clough V. Hoffman, 132 154. King v. Iowa R. Co., 114 Pa. St. 626, 19 Atl. 299, 19 Am. St. N. W. (Iowa) 177. Rep. 620. § 92 Safe Place to Work. 259 proper materials for the construction of the triangle, and the injury was caused by the negligence of the mate in constructing it and in ordering the seaman to use it."^ Undermining loose coal. Where an employee in a mine was injured by the act of a fellow-servant in undermining some loose coal left by a blast, it was held the master was hable upon the ground of failure to provide a safe working place. The rule that the master's duty does not extend to a place made unsafe by act of fellow-servant was not discussed. ^^* Unexploded blast. Where a foreman carelessly placed a workman in a cement quarry to work, too near an unexploded blast, the quarry being otherwise safe as such, it was said that the master is not chargeable with the consequences of a place of work made dangerous by the carelessness and neglect of a feUow-servant, though he happen to be the foreman."' Vessel; lowering freight in. That the place of work was rendered dangerous by the reckless manner in which the officers and agents of a ship company lowered freight into a vessel, while they were intoxicated, was chargeable to the master where an employee was injured by such recklessness."* Wheelbarrow left near track. The master was held not Uable for the mere transitory act of an employee in leaving a wheelbarrow near the track, which resulted in injury to a street car conductor while on the running board of his car."* 155. Kalleck v. Deering, 161 158. Melse v. Alaska Coin- Mass. 469, 37 N. E. 450, 42 Am. meroial Co., 42 Wash. 356, 84 Pao. St. Rep. 421. 1127. 156. Tradewater Coal Co. v. 159. Wickham v. Detroit Unit- Johnson, 24 Ky. L. Rep. 1777, 72 ed Ry., 160 Mich. 277, 125 N. W. S. W. 274, 61 L. R. A. 161. 22. 157. CuUen v. Norton, 126 N. Y. 1, 26 N. E. 905. 260 Mastee and Seevant. § 93 Planks insecurely piled. Where a night "watclunan in a mill fell, from his foot being caught in planks insecurely piled by carpenters dur- ing the day, the doctrine of safe place to work was not involved. The negUgence, if any, was that of fellow- servants. ^'"' V. "Chaeacteb" of Premises. A. In General. § 93. Introductory. It has been stated in previous pages that the master's duty in respect to his premises or place of work provided for his servants, is that of the exercise of ordinary care. Such is but the statement of a general rule, which experi- ence has shown is very flexible and is, ordinarily a question for determination by a jury. It is, therefore, not a matter of wonderment that much conflict and confusion exists in the decided eases, there being no certain guide or stand- ard, the determination in particular cases being but the caprice or conjecture of a jury selected from the different walks ©f hfe, without experience as a rule, and influenced often times by prejudice which, try as hard as they will, they cannot whoUy overcome. This is stated, not so much in derogation of the system, and perhaps no better can be suggested, as to call attention to the fact that one such determination ought not to have any binding force, where the same question is present before another court and jury. The principle has been expressed, and as here- tofore stated with approval, that jurors should not be permitted in any case to determine the question of the character of appUances or premises furnished by the mas- ter, where free from defects. That the rule should be strictly adhered to in order that the master may conduct his business in his own way and with such apphances as to him may see fit, provided he does not violate the law 160. Bodwell v. Nashua Mfg. Co., 70 N. H. 390, 47 Atl. 613. §§ 94, 95 Safe Place to "Wobk. 261 of the land, and if such appliances or premises are more dangerous in their use than others that might be provided, the question of the character of such appliances or prem- ises is not involved, but rather the question, where the danger is obvious, whether the servant in entering upon, or continuing in, the employment, assumed the risk, or where not obvious to one of his age or experience, whether there devolved upon the master a personal duty of in- struction and warning. To permit a jury to determine, especially in cases of compUcated machinery and the Kke, the merits or demerits of which are questions of skill and experience, what the master's duty is in respect to the character of his apphances, is unjust. Many of the courts, among which have been and are the most able and considerate, in this cotmtry, have advocated and adhered to such doctrine. There are other courts which do not apply it. The practitioner, whatever may be his views, should know the position taken by the courts in different jurisdictions and thus be prepared to meet the question wherever called upon. Hence, at considerable length, the determination by all the different courts of last resort is stated, not only generally upon the main question, but as to the character of particiilar places and structiires. It wiU thus appear that courts are in a hopeless disagree- ment as to what a master should have done. § 94. Scope of subdivision. This subdivision is intended to cover questions as to the character of particular places as safe or unsafe, the question of imperfect construction or defects therein being left for the succeeding subdivision. Beidges. § 95. In general. First, the question of the "character" of railroad bridges wiU be considered and it wiU be noted, even as to such structures, the coiirts are not agreed. The question of imperfect construction is considered hereafter. '262 Master and Seevant, §§ 96, 97 § 96. Width. With respect to the width of such bridges, it was held, where a fireman was killed while at the side of his engine in the act of putting out the fire in some waste in the box of a driving wheel, by contact with the side of a bridge, which bridge it was alleged was too narrow, that it was not a breach of duty to maintain low bridges or bridges of such width that were safe to one exercising ordinary care."^ And, stated by another court, where it appeared a brakeman was injured by coming in contact with the sides of a bridge, which was within a few inches of the sides of a car, while he was ascending to the top of a car, that no duty rested upon the company to make its bridges wide enough so that employees would not be endangered in performing their duties. '^^^ It was held, however, by another court, where a brakeman was injured while climbing a ladder on the side of a box car, by contact with one of the stays of a bridge, and it appeared that the track was three and one half inches nearer the stays on that side than the opposite side, and that he was in the discharge of his duties at the time in response to a signal, that judgment for the plaintiff would not be disturbed. The case does not disclose the servant's knowledge or opportunity for knowledge of the character of the structure."' § 97. Heighth. The general doctrine was declared, approved by many courts, that there is no legal obligation on the part of a railroad company to build its bridges with an elevation so great that one of its e^.ployees, standing upright on a car, wUl not be endangered."* 161. Sheoler v. Chesapeake & 606. Other oases as to width, see 0. R. Co., 81 Va. 188, 59 Am. Rep. Bryce v. Chicago, M. & St. P. Ry. 654. Co., 103 Iowa, 665, 72 N. W. 780; 162. lUick V. Flint & P. M. R. Hughes Adm'r v. LouisvUle & N. R. Co., 67 Mich. 632, 35 N. W. 708. Co., 104 Ky. 774, 48 S. W. 671. 163. Ft. Worth & D. C. R. Co. 164. Baylor v. Delaware, L. V. Graves, 21 S. W. (Tex. Civ. App.) & W. R. Co., 40 N. J. L. 23, 29 Am. ^ 97 Sape Place to Wobk. 263 It "was stated by a court declaring such rule that such employee is chargeable from the mere fact of his entering upon the employment with knowledge that the danger existed."^ But it was held by another court that the general rule stated above was not true as a general proposition, but might be imder exceptional circumstances.^" Here is a commingHng of the question of neghgence of the master with that of assumption of risk on the part of the servant, two distinct and independent matters. The master is not negUgent in maintaining the structure because the servant assmnes the risk. He violates no duty. If neghgent at all, it would be for failiu-e of duty required of him to apprise the servant of the danger, failure of such duty being a distinct and independent act of negligence. The rule is stated by other courts in a quahfied form. Thus it is stated: "No negligence can be imputed to the railroad company because the struts of the bridge were not high enough to allow a person passing imder them, stand- ing upright on top of the cars." It appeared that an em- ployeecould safely pass by stooping or sitting down on the cars and it was held a want of reasonable care on the part of an employee not to have done so."^ And again: "Railroad bridges should be so con- structed, as to height, that brakemen who are required to go on top of cars, in the discharge of their duties, while passing over a bridge, may pass through and imder the roof of the bridge without danger to their personal safety Rep. 208; Clark's Admr. v. Rich- 165. Baylor v. Delaware, L. mond & D. R. Co., 78 Va. 709, 49 & W. R. Co., 40 N. J. L. 23, 29 Am. Am. Rep. 394; Baltimore & O. R. Rep. 208. Co. V. Strickler, 51 Md. 47, 34 166. Gusman v. Caflfery Cent. Am. Rep. 291; Cleveland, C. C. & R. & R. Co., 49 La. Ann. 1264, 22 St. L. R. Co. V. Walter, 147 HI. So. 742. 60, 35 N. B. 529; Chicago & A. R. 167. Baltimore & 0. R. Co. v. Co. V. Johnson, 116 111. 206, 4 N. E Strickler, 51 Md. 47, 34 Am. Rep. 381. Contra, Louisville & N. R. 291. Co. V. Cooley'a Adm'r, 20 Ky. L. Rep. 1372, 49 S. W. 339. 264 Masteb and Servant. § 97 but this does not require the roof of the bridge shall be of such a height that the brakeman can stand on top of the cars and pass through with safety.""* And again, where the question was whether the defend- ant was neghgent in maintaining a low bridge at its then elevation: "But in this inquiry it must not be forgotten that, if the irregularity of the ground surface and the state of the neighboring improvements were such that the bridge could not be raised, without too great inconvenience to vehicles crossing it, without great and serious injury to neighboring land proprietors affected by its change, or without too great expense to the railroad company, either of these would furnish an excuse for not raising the bridge — either of said categories would furnish a case where one convenience would yield to another. This inquiry should be carefully presented to the jury and care- fully considered by them.""' This court, however, subsequently held that the fact that a railroad company maintains an overhead bridge of such height that a brakeman standing on top of a freight ear cannot pass tmder it in absolute safety, constitutes, under ordinary circumstances, prima facie negUgence, but it does not constitute wilfid, wanton or intentional negU- gence, although the bridge could be elevated at small, expense and without public inconvenience.^™ The Kentucky court subsequently held under the statute of that state relating to recovery of punitive dam- ages for wilful neglect, that the maintenance of such a low bridge was wilful negligence. ^'^ The rule was declared, which has considerable support, that raih-oad companies are under obligation to all persons 168. Cleveland, C. C. & St. Banks, 104 Ala. 608, 16 So. 547. L. R. Co. V. Walter, 147 El. 60, 35 See also Fort Worth & R. G. R. Co. N. E. 529; Chicago & A. R. Co. v. v. Kime, 21 Tex. Civ. App. 271, Johnson, 116 lU. 206, 4 N. E. 381. 51 S. W. 558. 169. LouisviUe & N. R. Co. v. 171. Cincinnati, N. 0. & T. P. Hall, 91 Ala. 112, 8 So. 371, 24 R. Co. v. Sampson's Adm'r, 16 Am. St. Rep. 863. Ky. L. Rep. 819, 30 S. W. 12. 170. Louisville & N. R. Co. v. §97 Sapb Place to "Woek, 265 who have a right to be on top of their trains in the dis- charge of any duty, to so construct their overhead bridges or other overhanging structures adjacent to their tracks, that they will not expose such persons to unnecessary risks or to perils that can easily and without any great outlay be avoided. If for any reason structures of the kind last mentioned are maintained which do expose persons who have a right to be on top of moving freight trains to un- usual risks (such as a liability to be knocked off), then the exercise of due care requii-es some warning to be given, either verbally or by whip lashes, to all of those persons who, in the discharge of their duties, are liable to sustain injuries in consequence of such structures."^ 172. CHcago, M. & S. P. R. Co. V. Carpenter, 6 C. C A. 551, 66 Fed. 451; Baltimore & 0. R. Co. V. Rowan, 104 Ind. 88, 3 N. E. 627; LouisviUe, N. A. & C. R. Co. v. Wright, 115 Ind. 378, 16 N. E. 145, 17 N. E. 584, 7 Am. St. Rep. 432; Clark V. St. Paul & S. C. R. Co., 28 Minn. 128, 9 N. W. 581; Flan- ders V. Chicago, St. P.,M.& 0. R. Co., 51 Minn. 193, 53 N. W. 544; Gulf, C. & S. F. R. Co. V. Knox, 25 Tex. Civ. App. 450, 61 S. W. 969. It was declared it was the duty of a railroad company to so construct its tracks and bridges as wiU. make them safe for employees to perform their duties and a party within its service has a right to assume that this obligation has been discharged, and suoh rule so declared was ap- plied where a conductor of a freight train was injured by contact with the braces of an overhead bridge, and it appeared the bridge was of sufficient height to permit a man wMle standing in the center on the top of an ordinary box car, to pass under it in safety, but if he stood two or three feet from the center he could not escape contact with the braces. St. Louis, Ft. S. & W. R. Co. V. Irwin, 37 Kan. 701, 16 Pao. 146, 1 Ami. St. Rep. 266. See also Baltimore & 0. R. Co. v. Rowan, 104 Ind. 88, 3 N. E. 627; Louisville, N. A. & C. R. Co. v. Wright, 115 Ind. 378, 16 N. B. 145, 17 N. E. 584, 7 Am. St. Rep. 432; Pennsylvania Co. v. Sears, 136 Ind. 460, 34 N. E. 15, 36 N. E. 353. A brakeman had been running over a section of the road for more than a year on which all the bridges but three were of such a height that he could pass under safely while stand- ing on the top of freight cars, and the three were of sufficient height to permit him to pass under while standing erect on the top of ordinary box ears. The defendant had recently introduced furniture cars which were of such height that they would not permit an employee to pass under the low bridges in safety while standing erect on the top. Such brakeman was injured by con- tact with one of such low bridges as he stepped upon one of such fur- niture cars. It was held that the 266 Mastee and Sbevant. §98 C. Mines. § 98. In general. Whether the duty imposed upon the master in respect to fm-nishing a reasonably safe mine, has been performed, is a question in many cases difficult to determine. The operation of a mine presents peculiar features not ordi- narily incident to other employments. The mine in. maintenance of suoh low bridges was prima facie evidence of negli- gence and the defendant was liable unless the injured employee was chargeable with contributory negli- gence or with the assumption of the risk. Atchison, T. & S. F. R. Co. V. Rowan, 55 Kan. 270, 39 Pao. 1010. Where an employee was kiUed by contact with a low bridge, and it appeared that suoh employee had never been informed of its location or existence, and had never passed over the road in his capacity as brakeman, except in the night time, it not appearing that he ever had an opportunity to observe the height of the bridge, it was held the risk was not assumed. Upon the question of the company's negligence in maintain- ing the bridge, it was said: ."We are not prepared to say that the defendant was not ^ilty of very gross negligence in continuing to maintain for so many years a low bridge, over which it operated trains with fiu-niture and other cars so high that a brakeman could not stand upon them and pass through the bridge in safety. Such structures have been strongly con- demned by this court in prior cases, and if railroad companies will persist in maintaining them to the imminent peril of the lives of their employees who are engaged in the service, whose necessary hazards are so great, it does not seem any hardship to require them to re- spond in damages to the families of those who are killed thereby." Atchison, T. & S. F. R. Co. v. Love, 57 Kan. 36, 45 Pac. 59. It has been held that it was negligence to maintain a low overhead bridge, notwithstanding the statute (Code 1904, sec. 1294d, ch. 36) which provided that where a bridge is not sufBciently high to permit safe passage of cars, with employees on top, warning signals shall be maintained, and failure to main- tain suoh signals shall make the company Kable, etc. The statute did not release the company from liability for the negligent construc- tion of the bridge. Chesapeake & O. R. Co. V. Rowsey's Adm'r, 108 Va. 632, 62 S. E. 363. And where a statute required the erec- tion of tell tales or warning signals at a distance of 150 feet from the approaches of an overhead bridge, a brakeman did not assume the risk where the statute was not comphed with, where injured on top of a furniture car, somewhat higher than the cars ordinarily in use, though the bridge was high enough to admit of a person passing in safety while on top of an ordinary car. Hailey v. Texas & P. R. Co., 113 La. 533, 37 So. 131. § 99 Sape Place to Woek. 267 the first instance has to be opened and. preparation made to obtain therefrom and remove the product. Conditions are constantly changing. The character and location of the work is such that its prosecution is at all times more or less hazardous. The doctrine which exempts a master, where the work itself makes the place unsafe, cannot in all cases be apphed. A place, so to speak, is continually being made. Duties in this respect devolve upon the master to make the place reasonably safe. These duties, in some cases, are personal to the master at common law, or by force of particular statutes. What specific means must be employed in the performance of such duty depend largely upon the attendant conditions, and hence in many cases a general rule cannot be formulated which will be appUcable. In some particulars the courts are not agreed. The text-writer therefore cannot state what has been required or excused. With respect to the char- acter of the appliances used, it has been held that the rule of general use as a test is appHcable."' § 99. Timbering. Propping roof. The question often has been involved whether in the matter of timbering or propping the roof of a mine, the employer is liable for the manner in which such work is per- formed, or whether his duty is performed by furnishing suf- ficient suitable materials and the employoient of compe- tent servants to perform that work. The question of fel- low-servant is involved. Duty as personal to master. It was held, where a coal mine had a sloping entrance through which coal was brought to the surface, that the duty of the employer required the exercise of reasonable care to have the roof of such entrance sufficiently propped to prevent coal from faUing on the track."* 173. Coal Creek Mining Co. v. 174. Corson v. Coal Hill Coal Davis, 90 Tenn. 711, 18 S. W. 387. Co., 101 Iowa, 224. 268 Mastee and Sebvant. § 100 Also that it was the duty of a mine owner to timber the sides of an entry to the mine to prevent stone and other material from falling."^ § 100. As a place of work. In a case where the question of the master's duty was involved, it was said, whether the injury was caused by excavating too large a space without placing the timbers or whether it resulted from the fact that the timbering previously erected had ceased to support the roof by reason of the subsequent dropping of the ore therefrom, thus leaving too great an area unsupported, the case was not within the rule requiring the master to provide the servant with a reasonably safe place in which to work; that the so-called p'ace was a mere incident of the mining operations, the result of the common labor of those employed in the mining, and the master's duty was discharged by the exercise of reasonable care in furnishing suitable material and employing competent men to do the work."^ The Arkansas court seems to be in accord with the doc- trine last stated as it held that an owner of a mine, em- ploying a person to drive an entry for a certain price per yard, and pay for coal taken out, was not bound to timber unfinished portions of the entry, but only to fxirnish timber at plaintiff's request to enable him to do the work.^'* The master, however, may be Uable for failure to keep a supply of timber for use as props and deUver them as re- quired, such being a positive duty by force of a statute."* Other courts have held that the doctrine of safe place to work appUes to the operation of a mine."' 175. E. Smith & Sons v. Garri- 178. Mt. Olive & S. Coal Co. son, 108 S. W. (Ky.) 293. v. Herbeek, 190 lU. 39, 60 N. B. 176. Petaja v. Aurora Iron 105; Sugar Creek Min. Co. v. Mia. Co., 106 Mich. 463, 64 N. W. Peterson, 177 111. 324, 62 N. E. 475; 335, 66 N. W. 951, 32 L. R. A. 435, Western Anthracite Coal & Coke 58 Am. St. Rep. 505. Co. v. Beaver, 192 lU. 333, 61 N. B. 177. Mammoth Vein Coal Co. 335. V. BubUss, 83 Ark. 667, 104 S. W. 179. Consolidated Coal Co. v. 210. Gruber, 188 lU. 584, 59 N. E. 254; §§ 101, 102 Safe Place to Woek. 269 The doctrine of safe place to work was held applicable where a coal miner was struck and killed by material fall- ing from the roof of a passageway, after having exploded a blast in a room about to be abandoned, and as he was about to make an inspection after the shot was fired, in order to make a report to the shift boss as to the effect of the shooting. 1*" § 101. Duty to see that timbers are properly set and in repair. It was held to be a positive duty on the part of a mine owner, after the mine is opened and timbered, to use reasonable care and dihgence to see that the timbers are properly set and that they are kept in proper condition and repair; to this end he must provide a competent mining boss or foreman and make timely inspection of timbers, roofs and waUs.^" NegUgenee of the employer, however, did not appear where coal from the roof of a mine feU while the employer who, pursuant to request from a workman, was engaged in putting up props to sustain the roof, the coal falling in while the props furnished, having been found too long, were being sawed to the proper length."^ § 102. Precautions to prevent material falling from roof. It would seem that among the personal duties of the master is to exercise precaution to keep the mine safe from the dangers of faUing ore and rock, where threatened, where he is chargeable with notice. ^^' McKenzie v. North Coast Colliery 183. Pantzar v. Tilly Foster Co., 55 Wash. 495, 104 Pao. 801 ; Iron Min. Co., 99 N. Y. 368, 2 N. E. HiU V. Nelson Coal Co., 40 Mont. 24; Consolidated Coal Co. v. Gru- 1, 104 Pac. 876. ber, 188 111. 584, 59 N. E. 254; Sev- 180. Northern Coal & Coke Co. erance v. New England Tale Co., 72 V. Allera, 46 Colo. 224, 104 Pac. Vt. 181, 47 Atl. 833. Where there 197. was evidence that defendant was 181. Western Coal & Min. Co. constructing a tunnel or gang way V. Ingraham, 17 C. C. A. 71, 70 Fed. into his mine, and that ordinary 219. care required testing for loose and 182. Sugar Creek Min. Co. v. fractured pieces of coal, and these Peterson. 177 111. 324, 52 N. E. 475. if found should be knocked down. 270 Masteb and Servant. §§ 103, 104 § 103. Water in adjacent mine. The duty of the master in respect to the safety of the working place was said to extend to such extraneous mat- ters as menace the safety of the place and which are ascertainable upon reasonable inquiry, as for instance, the presence of water in a neighboring mine in dangerous quantity which may endanger the safety of his mine, and to make reasonable inquiry and to take reasonable precau- tions to protect it from such danger. ^^^ § 104. Cage, operating. Structures or appliances in. It was a question for the jury whether, in the particular instance, the master was negligent in not pursuing the usual custom of sending the cage empty down the shaft in a mine before lowering the men. The cage struck an obstruction in the shaft throwing a miner off the bar upon which he was standing, causing him injury."* Car derailed. Where a miner was engaged at work in a mine at a speci- fied price per ton for coal deUvered at the mouth of the shaft, and it was his duty to run his loaded cars out of the room in which he worked to the entry, the proprietor was and also ttat the work was under the of the mine had knowledge of such immediate supervision of the de- conditions as would suggest to fendant's superintendent, and that them that rock was liable to fall one piece in falling struck a workman at any time, it was held a question and injured him, it was held that for the jury whether the failure to such facts were sufficient to send remove or support such rook was a the question of defendant's negli- lack of ordinary care in not pro- gence to the jury. It was said that viding a safe place for the miners in such case it is for the jury to say, to work. (Rules of law and of con- not whether the employer had duct applicable to operators of adopted the best method of eon- mines are very fully stated in the structing a gangway, but whether, opinion.) Union Pacific R. Co. v. according to the circumstances, Jarvi, 3 C C A. 433, 63 Fed. 65. he had exercised proper care. 184. WiUiams v. Sleepy Hollow Vanesse v. Catsburg Coal Co., Mining Co., 37 Colo. 62, 86 Pac. 159 Pa. St. 403, 28 Atl. 200. Where 337, 7 L. R. A. (N. S.) 1170. a miner was injured by the falling 185. Alaska United Gold Min. of loose rock from the roof of a Co. v. Keating, 53 C. 0. A. 655, mine, and it appeared the officers 116 Fed. 561. § 104 Sape Place to "Woek. 271 chargeable with no duty to him with reference to rerailing of a derailed ear.^*^ An employee whose duty it is to signal the engineer to shut off the power, where coal cars in a mine are off the track, is not bound to look after the safety of the entrance to the mine. Such is the master's duty or one employed for that work."^ Roadway. The duty of the master, it was held, extended to main- taining the roadway along which an employee was reqtiired to drive a car, in a reasonably safe condition. ^^^ Skip not used for passengers. An employee injured while riding in a skip or iron box used in hoisting ore out of a mine and not intended for passengers, cannot recover damages where the master has provided a safe method of egress from the mine, unless he shows that he was so directed to ride by his superior or that it had been the custom of the employees thus to use it, to the knowledge of the master; nor can a recovery be had in any event, in the absence of proof showing some defect, either in the apphanees or method of construction. A master is not bound to anticipate that an employee riding in such a "skip" wUl permit any part of his person to extend beyond its sides. ^*' Switches. It was held that the master's duty to provide a reason- ably safe working place required it, where its automatic switches in a mine frequently became so obstructed as not to work, to keep a man there to remove the obstructions."" 186. Cavanaugh v. Centerville 189. Bums v. Old Sterling I. Block Coal Co., 131 Iowa 700, 109 & M. Co., 188 N. Y. 175, 80 N. E. N. W. 303, 7 L. R. A. (N. S.) 907. 927. 187. Corson V. Coal Hill Coal 190. Central Coal & Iron Co. v. Co., 101 Iowa, 224. Walker, 30 Ky. L. Rep. 621, 99 S. 188. Henrietta Coal Co. v. W. 309. Campbell, 211 111. 216, 71 N. E. 863. 272 Master and Seevant. § 104 Tracks. The duty of maintaining tracks in a mine in a reasonably safe condition was held to be personal to the master. It was a question for the jury whether that duty had been performed, where at the jimction of a side with the main track, one of the tracks was about an inch higher than the other, and it was alleged that the switch tender, in jimip- ing on to the foot board of the motor car, and by reason of the jerk of the car in going over the track at this point, was injured by his foot shpping and passing through an open- ing in the running board. "^ Ventilation. Statutes in some of the states require and provide for the ventilation of mines. That the exercise of reasonable care in providing for the safety of such a place of work independently of statute, would require such a pre- caution, is beyond question. ^^^ It is stated that it .s the duty of an operator of a mine to use all apphances readily obtainable, known to science, for the prevention of accidents arising from the accumula- 1ion of gases or other explosive substances in the mine."^ That his duty in this respect is such as to render pru- dent blasting with gunpowder reasonably safe."* The state examiner having ordered the removal of dust in a mine, and the sprinkling of roads therein, and to put up a canvass sheet at a cross cut, this was held sufficient to charge the operator with knowledge of the defective condition."^ Where negKgence was charged in shutting down a ventilating fan in a mine, upon discovery of fire, it was 191. Sundvall v. Interstate Iron 193. Western Coal & Min. Co. Co., 104 Minn. 499, 116N. W.1118. v. Berberich, 36 C. C. A. 364, 94 192. Western Coal & Min. Co. Fed. 329. V. Berberich, 36 C. C. A. 364, 194. Godfrey v. Beattyville 94 Fed. 329; Godfrey v. Beatty- Coal Co., 101 Ky. 339, 19 Ky. L. viUe Coal Co., 101 Ky. 339, 19 Ky. Rep. 501, 41 S. W. 10. L. Rep. 501, 41S. W. 10; Mosgrove 195. Riverton Coal Co. v. Shep- V. Zimbleman Coal Co., 110 Iowa, herd, 207 lU. 395, 69 N. E. 921. 169, 81 N. W. 227. §105 Safe Place to "Woek. 273 said: "No one can be charged with carelessness when he does that which his judgment approves or where he omits to do that of which he has no time to judge. Such acts or omissions, if faulty, may be called mistakes, but not carelessness.""^ § 105. Statutes regulating and violations thereof. In no branch of business have the legislatures inter- fered to a greater extent in behalf of employees than in connection with mining. Such statutes relate, inter aha, to the timbering, ventilation, signals, protection of cages, escapement shafts, etc. Generally, failure to obey the statute renders the master Uable where an accident results because of such failure."' In Illinois, only a wilful violation is actionable. Any conscious violation of the provisions of the act is wilful, within the meaning of the statute."^ 196. Hughes v. Oregon Imp. Co., 20 Wash. 294, 55 Pac. 119; Brown v. French, 104 Pa. St. 604. 197. Johnson V. Mammoth Vein Coal Co., 88 Ark. 243, 114 S. W. 722, 123 S. W. 1180, 19 L. R. A. (N. S.) 646; Vandalia Coal Co. v. Yemm, 92 N. E. (Ind.) 49 (requir- ing sprinkling). It was held by the Iowa court that every person, while violating an express statute (ven- tilating), is a wrongdoer and is ex necessitate negUgent in the eyes of the law, and an innocent person within its protection, injured there- by, is entitled to civil remedy by way of damages. Mosgrove v. Zimbleman Coal Co., 110 Iowa, 169, 81 N. W. 227. By the Indiana court that the duties prescribed by the Miner's Act (Burn's Ann. St. 1901, see. 7479) are personal to the master and a neglect to observe them by his servants is chargeable to him. Antioch Coal Co. v. Rockey, 169 Ind. 247, 82 N. E. 76. 1 M. & s.— 18 198. Eldorado Coal & Coke Co. V. Swan, 227 lU. 586, 81 N. E. 691, the existence of smoke at the bot- tom of a shaft did not lessen the operator's obhgation to maintain the light required by statute. Mine and Miner's Act of lUinois (Kurd's Rev. Stat.,ch. 93, see. 18) construed to be for the protection of all workmen in and about a mine. Brennen v. Chicago & CarterviUe Coal Co., 241 lU. 610, 89 N. E. 756. The duty imposed by the statute requiring the sprinkling of roadways in mines, is mandatory. The omission of the manager or examiner to observe the statute is chargeable to the operator. Davis v. lUinois Collieries Co., 232 lU. 284, 83 N. E. 836; Vandaha Coal Co. V. Yemm, 92 N. E. (Ind.) 49. Statute requiring examination and inspection of mine by examiner is mandatory. Aetitus v. Spring Val- ley Coal Co., 246 lU. 32, 92 N. E. 579. 274 Mastbe and Sbevant. § 105 Employment of compelent mine boss. The master is not relieved of his duty in respect to maintaining his mine reasonably safe, by the employment of a competent mining boss required by the statute of 1881. The court states that although the statute was borrowed from Pennsylvania, and the court there had prior thereto placed a construction upon it that the master was ex- empted, yet the court would not follow it as such con- struct' on was contrary to the poUcy of the laws of Tennes- see."' Cage, covering. Where an employee, while at work on top of the cage in a mine, was killed by a missile, the character of which was unknown, falling upon him, no negligence was shown on the part of the master. The fact that the statute required a covering over the cage had no apphcation as the employee was on top of the cage. ^°'' Door attendant. A statute having provided that there shall be an attendant to open and close the doors in mines, it was negligence per se not to provide such attendant, where, if the statute had been observed, a collision and conse- quent injury to a mule driver would have been avoided. ^" The statute of Pennsylvania requiring the presence of an attendant at mine doors, has reference solely to venti- lation, and does not apply to the safety of persons using the gangways. ^"^ Labor on Sunday. McLain's Code, sec. 5438, making it a misdemeanor to labor on Sunday, does not have the effect to prevent recovery of damages from the owner for injixries received by an employee while laboring in a mine on Simday.^"' 199. Smith v. Dayton Coal & 201. Himrod Coal Co. v. Stev- Iron Co., 115 Tenn. 543, 92 S. W. ens, 203 111. 115, 67 N. B. 389. 62, 4 L. R. A. (N. S.) 1180. 202. Allen v. Kingston Coal Co., 200. Jacobson v. Smith, 123 212 Pa. St. 54, 61 Atl. 572. Iowa, 263, 98 N. W. 773. 203. Taylor v. Star Coal Co., 110 Iowa, 40, 81 N. W. 249. § 105 Safe Place to Woek. 275 Lighting. The statute requiring certain places in a mine to be lighted, the master was held neghgent in violating the statute in this respect. An employee was injured in stimibling over a block of wood.^"* Marking dangerous places. The Mine and Miner's Act of Illinois, relat'ng to the marking of dangerous places in a mine, applies to danger- ous conditions of a permanent character as well as tem- porary, including a live electric wire so placed that a driver or his mule is exposed to contact therewith. ^"^ The provisions of the statute (Kurd's Rev. St. 1905, p. 1388, c. 93, sec. 18b) which makes it the duty of mine examiners, when discovering working places to contain accumulation of gas or recent faUs or any dangerous place to exist, to mark the place with notice to men to keep out, and report the same to the mine examiner, cover a dan- gerous condition of the roof of a mine.^"^ A hoisting engine at the top of an incline connected with a coal mine and used for the purpose of hoisting coal, constitutes a part of the mine and within the statute requir'ng dangerous places to be marked with danger signals.^"' Passageways. The operators of a mine failed to comply with the statute in respect to the condition of the mine, and a driver was injured in being caught by the roof the height of which was less than prescribed by statute. Such failure being wilful, the questions of feUow-servant's negligence and plaintiff's contributory neghgence were not in- volved. ^"^ 204. Robertson v. Donk Bros. & Mining Co., 235 111. 540, 85 N. E. Coal & Coke Co., 238 lU. 344, 87 743. N. E. 373. 207. Spring VaUey Coal Co. v. 205. Dunham v. Black Dia- Greig, 226 lU. 511, 80 N. E. 1042. mond Coal Co., 239 lU. 457, 88 208. Spring VaUey Coal Co. v. N. E. 216. Rowatt, 196 111. 156, 63 N. E. 649. 206. Mertens v. Southern Coal 276 Mastee akd Sebvant. § 105 Props. Furnishing. Failure to comply with the Arkansas statute requiring operators of mines to furnish props was held negligence per se.^"' McLain's Code, section 2463, makng it a misdemeanor for any miner to neglect or refuse to securely prop or support the roofs and entries under his control, of a mine where he is worMng, has no application where the evidence shows that such an employee, injured by pieces falling from the roof, had no control over the roof and was di- rected not to remove any slate therefrom. ^^^ It was held that, imder a statute of Illinois relating to the furnishing of props in a mine, that a demand for props made by a miner upon drivers, was a sufficient demand upon the mine manager, where such manager had instructed the miners to so make their requests. ^^^ Under the statute requiring coal mine managers to provide miners with a sufficient supply of props, caps and timbers on demand, the operator's duty is not discharged by a manager providing such props, etc., as he deems sxifficient, but when a miner makes a reasonable and timely demand for timbers of a particular kind to be used in his working place, the operator shovild furnish them.^^^ Although the statute only requires that an operator of a mine shall keep a sufficient supply of timber, where required, to be used as props, so that the workmen may be able to properly secure such workings from caving in, yet if the operator assume the task of propping and securing the roof of a mine, and he so neghgently fails in securing it, he is Mable, notwithstanding such statute, to one injured by his fault. ^^^ 209. Johnson V. Mammoth Vein Co., v. Lucis, 226 lU. 23, 80 N. E. Coal Co., 88 Ark. 243, 114 8. W. 560. 722, 123 S. W. 1180, 19 L. R. A. 212. Springfield Coal Min. Co. (N. S.) 646. V. Gedutis, 227 III. 9, 81 N. E. 9. 210. Taylor v. Star Coal Co., 213. Consolidated Coal Co. v. 110 Iowa, 40, 81 N. W. 249. Soheiber, 167 lU. 539, 47 N. E. 211. Donk Bros. Coal & Coke 1052. § 105 Safe Place to Work. 277 Such statute does not have the effect to reKeve the employer from his common law duty to fTimish a safe place for work to such workmen whose duties do not re- quire them to use the props, as, for instance, a driver of cars over tracks in a mine entry. ^^* It was said: "Where an owner, operator or manager so constructs or equips his mine that he knowingly oper- ates it without conforming to the provisions of the Act, he wiLfully disregards its provisions and wilfully disre- gards the safety of miners employed therein."^" Ventilation. In several of the states, as well as by federal legislation, the ventilation of mines is regulated by statute.^" The neglect of a mine owner, in the absence of any excuse, to provide for ventilation of his mine, as required by section 2488 of the Iowa Code, is neghgence entithng an employee to recover for injiuies caused thereby, though the section provides no penalties for its violation. ^^^ The Ilhnois statute providing that "aU permanent doors in mines used in guiding and directing the ventilating cur- rents shall be so hung and adjusted as to close automatic- ally," was not enacted for the sole purpose of securing proper ventilation in the mine, but was also intended for the protection of miners who are in danger of receiving injury in closing the doors after passing through them.^^' Under a statute of Washington which provided that operators of mines shall provide for the thorough ventila- 214. ConsoUdated Coal Co. v. N. E. (Ind. App.) 295; Cerrillos Bokamp, 181 lU. 9, 54 N. E. 567. Coal R. Co. v. Deserant, 9 N. M. 215. Donk Bros. Coal & Coke 49, 49 Pac. 807 (construing Act Co. V. Peton, 192 III. 41, 61 N. E. Cong. Marcli 3, 1891); Andricus' 330. Adm'r v. PineviUe Coal Co., 121 216. Czareeki v. Seattle & S. F. Ky. 724, 90 S. W. 233. R. & N. Co., 30 Wash. 288, 70 217. Mosgrove v. Zimbleman Pao. 750; Western Coal & Mining Coal Co., 110 Iowa, 169, 81 N. W. Co. V. Jones, 75 Ark. 76, 87 S. W. 227. 440; Central Coal & Coke Co. v. 218. Madison Coal Co. v. Gregory, 78 Ark. 43, 93 S. W. 56; Hayes, 215 lU. 625, 74 N. E. 755. Indiana & C. Coal Co. v. Neal, 75 278 Masteb and Servant. § 106 tion of mines by forcing air into them so that every place in the mine shall be free from standing povfder smoke and gases of every kind, it was held that a personal duty was placed upon the master, the performance of which could not be delegated so as to relieve him from the consequences of non or improper performance. "' D. Tracks. § 106. Construction. With respect to the character of railroad tracks, the same disagreement exists as to the master's duty as in other cases which have been considered. Some courts adhere to a doctrine that a jury shall determine this question. It is a strange doctrine that inexperienced jurors shall dictate the character of railroad tracks that shall be employed in the matter of method of construction and material used; that railroad companies shall be subjected to their whims and caprices in this respeclj and not upon the judgment' and skill of those who are experienced in such matters. "The manner of construc- tion of a railroad is an engineering question. The par- ticular method of construction is or should be beyond the control of the courts. A railroad company cannot be required to adopt any particular method of construction or any particular contrivance or device in order to be in the exercise of ordinary care. Pubhc pohcy does not require courts to lay down any rule as to the manner of construc- tion of railroads. A verdict of a jmy is not a precedent and is not binding on another jury. One jury might find the construction a proper one while another jury might find it an improper one, and the important engineering question of the manner of constructing a railroad would thus be left to the varying and uncertain opinions of jurors." 2 20 219. Sommer v. Carbon HiU 220. Chicago & E. I. R. Co. v. Coal Co.. 32 C. C. A. 156,8 9 Fed. DrisooE, 176 lU. 330, 52 N. E. 921. 54, "^ 106 Safe Place to "Work. 279 The same in effect is the declaration of the supreme com-t of the United States. Thus it was said with refer- ence to the charge that a raih-oad company was neghgent in maintaining a sharp curve in its track: "Although it appears that the curve was a sharp one at the place where the accident happened, yet we do not think that pubhc pohcy requires the courts to lay down any rule to re- strict a railroad company as to the curves it shall use in its freight depots and yards, where the safety of passen- gers and the pubhc are not involved, much less that it should be left to the varying and uncertain opinions of juries to determine such an engineering question." ^^^ The Ind ana court, however, permitted a jury to de- termine that the tracks in a railroad yard, where a switchman had had two weeks experience, were too near together, from the fact that such employee, while standing on the stirrup of a moving car, came in contact with the Itunber loaded upon a car upon an adjacent track. ^^^ It was stated by the Massachusetts court, where a brakeman was injured while upon the side of a car, by contact with a car upon a side track, somewhat larger than ordinary freight cars: "The defendant did not owe him the duty to change the position of its tracks or dis- continue the use of such cars upon its railroad, or to make a change in the method of storing these and other cars upon its side track, and therefore in a legal sense was guilty of no breach of duty and of no negligence towards him."223 In the cases cited below the question of the defendant's negligence in the manner of the construction of its tracks was held a question for the jury.^^^ 221. Tuttle V. Detroit, G. H. Co. v. Roberts, 161 Ind. 1, 67 N. E. & M. R. Co., 122 U. S. 189, 30. 630. Ed. 1114, 7 Sup. Ct. Rep. 1166. See 223. Content v. New York, N. Content v. New York N. H. & H. & H. R. Co., 165 Mass. 267, 43 H. R. Co., 165 Mass. 267, 43 N. E. N. E. 94, 94; Twitehell v. Grand Trunk R. 224. Where a railroad company Co., 39 Fed. 419. permitted the ends of railroad ties 222. Baltimore & O. S. W. R. to project a foot beyond the regu- 280 Masteb and Sebvant. no8 ■ Ballasting. It was said, it is the duty of a railroad company, at switcliing points, to so ballast its tracks that the ballast is on a level with the top of the ties, leaving no opening under the rails. It is no exemption from this duty that the system n general use upon other roads was to leave an open space under the rails at switching points, tmless that system rendered the track reasonably safe for employees. ^^^ It was held, however, by another court, that an excava- tion under a spring rail frog, being usual and necessary to the operation of the appUanoe, that it was not negligence to so maintain it.^^^ lar ties. WMtclier v. Boston & M. R. Co., 70 N. H. 242, 46 Atl. 740. Where a space more than 2 J^ inches wide was left between a rail and a planMng at a crossing into which a brakeman's foot was caught. Louisville & N. R. Co. v. Johnson, 27 C. C. A. 367, 81 Fed. 679; VaUey R. Co. v. Keegan, 31 C. C. A. 255, 87 Fed. 849. Where the ties in a railroad yard lay exposed above the ground, the space between them being unfilled, and at the place of injiuy crooked ties had been put down, their ex- posure being greater and the track was rougher and more dangerous than elsewhere in the yard, a brake- man having stumbled at such place while performing his duties. St. Louis, I. M. & S. R. Co. v. Robbins, 57 Ark. 377, 21 S. W. 886. Where a railroad company had constructed and maintained its track at the foot of a mountain in a out through loose boulders embedded in clay or gravel. The company's engineer regarded it as safe. It had been constructed eight years. There had been no recent rainfall. Clune V. Ristine, 36 C. C. A. 450, 94 Fed. 745. Where the evidence tended to show that the rail was too weak and too light to support the engine and rolling stock used on the road and the derailment of an engine was caused by a broken switch rail, negHgence was presumed. Clapp v. Minneapolis & St. L. R. Co., 36 Minn. 6, 29 N. W. 340, 1 Am. St. Rep. 629. And where the condi- tion of the road was such owing in part to the narrowness of the em- bankment and defective ties, that it was not reasonably safe for use by engines of heavy weight, it was held not reasonably safe, within the rule of the master's duty. Walker V. McNeU, 17 Wash. 582, 50 Pac. 518. 225. Lake Erie & W. R. Co. v Morrissey, 177 111. 376, 52 N. E. 299. 226. Riley v. Louisville & N. R. Co., 66 C. C. A. 598, 133 Fed. 904. § 107 Safe Place to Woek. 281 And by another, tliat it was negligence to permit a de- pression from two to four inches deep and a foot and a half across at a switching place in a railroad yard.^^' And by another, that it was a question for the jury whether the space left under a switch rod was so unneces- sarily large as to render the place of work unsafe. ^^^ Whether a railroad company was neghgent where it had raised its tracks, but had not ballasted the part so raised, in not providing a safe place to work, where the track was covered with snow, and a brakeman in walking upon it to turn a switch was caught between the ties and injured, was for the jury.^^^ It was held neghgence on the part of a raihoad com- pany, when ballasting its track, to leave stones eight or ten inches in diameter between the rails. ^'^ § 107. Cattle guards. Where a statute provided that "every corporation constructing or operating a railway shall . . . con- struct, at aU points where such railway crosses a pubUc highway, good, sufficient and safe crossings and cattle guards, . . . and any railway company neglecting and refusing to comply with the provisions of this section shall be hable for damages sustained by reason of such neglect or refusal, and in order for the injured party to recover it shall only be necessary for him to prove such neglect or refusal," it was held that the statute required that such cattle guards should be so constructed as to be sufficient and safe for all the uses and purposes for which the defendant was using it, and that included the use of it by employees engaged in coupling cars, and the danger to them in stepping into it or between the guards. ^^ 227. St. Louis, I. M. & S. R. Co. 230. Galveston, H. & S. A. R. V. Mangan, 86 Ark. 507, 112 S. W. Co. v. Pitts, 42 S. W. (Tex. Civ. 168. App.) 255. 228. Hannah v. Connecticut 231. Ford v. Cliicago, R. I. & R. R. Co., 154 Mass. 529, 28 N. E. P. R. Co., 91 Iowa, 179, 59 N. W. 682. 5, 24 L. R. A. 657. 229. Erie R. Co. v. Moore, 61 C. C. A. 226, 113 Fed. 269. 282 Master and Sebvanx. § 108 Where a cattle guard was maintained close to a scale used for weighing cars, and a brakeman but three days in the service, and without knowledge of the structure, was injured in the night time while couphng cars over such cattle guard, by stepping into it, it was held that the jury were warranted in finding that it was neghgence, un- der the circumstances, to maintain the cattle guard at that place, and that such employee had not assumed the risk from it. It was said, however, that the act of the de- fendant in maintaining such cattle guard would not render the defendant liable, if it was obvious or known to such employee at the time of the accident. ^^^ The only purpose of the several sections of the Texas statute relating to fencing and constructing cattle guards is to protect inclosures. The law does not require railroads to be fenced, nor does it require cattle guards to be put in merely because they have been fenced. The Habihty of injmy caused by coming in contact with animals trespassing upon the road is one of the dangers incident to the operation of railroads, and may be encountered inside of inclosures having cattle guards as well as outside. ^^' § 108. Culverts. Incident to the construction and maintenance of rail- road tracks is the construction of culverts or drains to prevent an accumulation of water. One of the important questions often presented is whether the master's duty re- quired, at a particular place, the construction of a culvert or drain. Ordinarily this has been held a question for the juiy. No particular question of law seems to have been considered in the cases where the question has been pre- sented, but simply one of fact whether the company in view of the surrounding conditions and in the hght of past experience, should, in the performance of its duty, have provided such means of safety for the protection of its employees. The general rule, however, is stated, that the 232. Fredenberg v. Northern 233. Ward v. Bonner, 80 Tex. C. R. Co., 114 N. Y. 582, 21 N. E. 168, 15 S. W. 805. 1049, 11 Am. St. Rep. 697. § 108 Safe Place to Work. 283 duty of the master, in respect to the construction of its tracks, is that of the exercise of reasonable care in provid- ing culverts for the escape of water collected and acciunu- lated by its embankments and excavations.^'^ Thus, where an engineer upon a railroad constructed along the foot of a mountain range, was killed by the derailment of his engine by reason of gravel on the track, which dm-ing a storm had washed down the moimtain side through a natural gully, there being no culvert for its escape under the track, it was held that the question of negligence in not constructing a culvert at the place was one for the jury to determine on the evidence as to the construction of the road and the formation of the land.^'^ Where water froze upon a track causing derailment of a car, resulting in the death of an employee, it was held a question for the jiuy, upon conflicting evidence, whether there was negligence on the part of the company in not foreseeing the danger and providing a drain. ^'^ When should be covered. It seems to be quite generally conceded that the mapter's duty requires that culverts within railroad yards and within a reasonable distance of switches, wherever employees would be apt to go in couphng cars, should be covered.^" But such method is not required at places remote from stations, far distant from any yard or switch, where it is not reasonably to be anticipated that couphng of cars will be required.^'* 234. Union Pacific R. Co. v. 237. Franklin v. Winona & St. O'Brien, 161 U. S. 451, 40 L. Ed. P. R. Co., 37 Minn. 409, 34 N. W. 766, 16 Sup. Ct. Rep. 618. 898, 5 Am. St. Rep. 856; West v. 235. Union Pacific R. Co. v. Southern Pac. R. Co., 29 C. C. A. O'Brien, 1 C. C. A. 354, 4 U. S. 219, 85 Fed. 392. App. 221, 49 Fed. 538 [afermed in 238. Franklin v. Winona & St. 161 U. S. 451 40 L. Ed. 766, 16 P. R. Co., 37 Minn. 409, 34 N. W. Sup. Ct. Rep. 618.] 898, 5 Am. St. Rep. 856; Southern 236. Balhoff v. Michigan Cent. Pac. R. Co. v. Gloyd, 70 C. C. A. a. Co., 106 Mich. 606, 65 N. W. 528, 138 Fed. 388. 592. 284 Masteb and Servant. § 109 It was held a failure of duty in this respect was not shown from the mere fact of having an uncovered culvert 281 feet from a switch and at a place where no duty was required of an employee which might cause him to step into it. 2 39 Nor where it appeared a section man fell into an open water way while pushing a hand car which was properly constructed.^^" Method of construction. Whether the master's duty required him, in maintain- ing a drain or culvert across a spur track which was covered between the raUs and ties, to cover the ends beyond the ties, was held a question for the jury.^^^ The master's duty does require that culverts shall be so constructed as to leave sufficient space for the escape of such quantity of water as ought reasonably to be antici- pated woidd accumulate, to be carried away. Where there have been previous washouts or the culvert has proved inadequate, it would seem that the company had sufficient notice that the culvert was inadequte.^*^ It was stated that a railroad company was hable for injuries caused by the washing out of a culvert, if the defective manner in which it was constructed contributed to the cause which was the giving way of a dam con- structed by another across the river, upon his own land, whereby an excessive quantity of water flowed to and against the cidvert.^*^ § 109. Fencing. It has been uniformly held that at common law no duty was imposed upon a railroad company to fence its tracks, much less for the protection of employees.*** 239. West V. Southern Pae. R. W. R. Co., 104 Wis. 473, 80 N. W. Co., 29 C. C. A. 219, 85 Fed. 392. 752. 240. Couch V. Charlotta, C. & 243. Bonner v. Wingate, 78 A. R. Co., 22 S. C. 557. Tex. 333, 14 S. W. 790; Bonner v. 241. Ross V. Great Northern Mayfield, 82 Tex. 234, 18 S. W. 305. R. Co., 101 Minn. 122, 111 N. W. 244. GiU v. LouisviUe & N. R. 951. Co., 160 Fed. 260. But it seems 242. Crouse v. Chicago & N. that it was held in New York that §109 Sape Place to Wobk. 285 Such duty, where it exists, is wholly a creation of statute, and hence the principal question involved is the construction to be placed upon the particular statute. The duty being made absolute, the principal question which has been involved is whether such duty includes protection to railroad employees. It will be observed that the courts are not agreed upon this proposition, some of them holding that employees are protected thereby, ^*^ even at common law there may be a duty on the part of raiboad com- panies to fence their tracks even for the protection of employees. It was said that a railroad com- pany, for the safety of its passen- gers as well as its employees upon its engines and cars, is bound to use suitable caxe and sMll in furnishing not only adequate engines and cars, but a proper track and road bed properly constructed, and rea- sonable prudence and care must be exercised in keeping the track free from obstructions, animate and inanimate; and if from any want of proper care such obstructions are permitted to be and come upon the track, and a train is thereby wrecked, and any person thereon is injured, the railroad company upon common law principles must be held responsible. Independently of any statutory requirement, a jury might find upon the facts of a case that it was the duty of a rail- road company to fence its tracks to guard against such danger. Donne- gan V. Erhardt, 119 N. Y. 468, 23 N. E. 1051, 7 L. R. A. 527. 245. It was affirmed by the cir- cuit court of appeals in an elabor- ate opinion by Justice Brewer, that the principle which requires the master to provide a reasonably safe place for his servants to do and perform their work, applies to maintaining proper fences by a railroad company along its right of way to keep animals from straying from adjoining premises, upon its tracks. The contention on the part of the railroad company was that the statute was enacted for the benefit of the proprietors of adjoining lands, and did not in any manner affect the liability of the company to its employees. The court gave fuU consideration to this proposition and said: "It is doubt- less true that where a right is given by statute, only those to whom the right is in terms given, can avail themselves of its benefits. But it does not follow, that when a duty is so imposed, a violation of that duty exposes the wrongdoer to liability to no person other than those specially named in the statute; on the contrary, it is not unreasonable to say, that every party who suffers injury by reason of its violation of any duty, is entitled to recover for such injuries. At any rate it is clear that the fact that certain classes of persons were intended to be primarily pro- tected by the discharge of a statu- tory duty, will not necessarily pre- vent others, neither named nor intended as primaiy beneficiaries, from maintaining an action to recover for injuries caused by the violation of such legislative com- 286 Master and Sbbvant. §109 while other oourts, construing particular stat- mand. It may well be said that although primarily intended for the benefit of one class, it was also intended for the protection of all who need such protection. The purpose of fence laws of this character is not solely the protec- tion of proprietors of adjoining fields, it is also to secure the safety of trains. That there should be no obstruction on the track is a matter of utmost importance to those who are called to ride upon railroad trains. Whether that obstruction be a log placed by some wrongdoer, or an animal straying on the track, the danger to the trains and those who are traveling thereon, is the same. To prevent such obstruc- tions being one of the purposes of the statute, any one whose business calls him on a train, has a right to complain of the company if it fails to comply with this statutory duty. . . . An employee has the same right as a passenger to com- plain of injuries caused by a viola- tion of duties imposed by such a statute. The purpose, is protection to the train. All who are on that train are exposed to equal danger. It is not a case where the employee has the means of protecting him- self, and the traveler not; for if the train be derailed, the danger to each is equal. It is urged, however, by the defendant, that the failure to keep the fence in repair, is the neghgence of a co-employee, and that therefore it is not responsible, but the duty is cast by the statute upon the company and it is cast as an absolute duty. It must erect and maintain safe and secure fences. It is a duty whose object is the securing a safe place for the employees on the train to do their work; and that as is known is an absolute duty cast upon the com- pany, responsibility for neglect of which cannot be evaded by in- trusting it to some employee." Atchison, T. & 8. F. R. Co. v. Reesman, 9 C. C. A. 20, 60 Fed. 370, 23 L. R. A. 768. It wiU be observed that the language of the court makes the responsibility equal as to passengers and employees. Whether it is to be inferred that the measure of care to be observed as to each in maintaining safe and secure fences is the same is a question not made clear. The duty to maintain a safe place for an employee to work is one of the exercise of reasonable care only. Is it to be inferred that the duty in the respect named on the part of the master, is an ab- solute one imposed by statute, and for that reason not a question of the exercise of reasonable care? The learned judge quotes approv- ingly from the opinion in Donnegan V. Erhardt, 119 N. Y. 468, 23 N. E. 1051, 7 L. R. A. 527: "Raihoad company, for the safety of its passengers as well as its employees upon its engines and cars, is bound to use suitable care and skill in furnishing not only adequate en- gines and cars, but also a safe and proper track and road bed. The track must be properly laid and the road bed properly constructed, and reasonable prudence and care must be exercised in keeping the track free from obstructions, ani- mate and inanimate, and if from want of proper care, such construc- tions are permitted to be and come §109 Safe Place to Woek. 287 utes, conclude tliat their object and purpose upon the track, and a train is thereby wrecked, and any person thereon is injured, the raihoad company upon common law princi- ples, must be held responsible. Experience shows that animals may stray upon a railroad track, and if they do, there is danger that the train may come in collision with them and be wrecked. Ade- quate measures, reasonable in their nature, must be taken to guard against such danger. Independ- ently of any statutory requirement, a jviry might find upon the facts of a case, that it was the duty of a railroad company to fence its track, to guard against such danger. But whatever the rule would be, independently of the statute, there is no reasonable doubt that it im- poses the absolute duty upon a railroad company to fence its tracks. That duty it is reasonable to suppose, was imposed not only to protect the lives of animals, but also to protect human beings upon railroad trains. It is made an unqualified duty; and for a viola- tion thereof, causing injury, the rail- road company incurs responsibil- ity." In referring to the claim that the provisions of a statute requir- ing railroad companies to fence their right of way were for the ex- clusive benefit of land owners, it was observed that it was not the theory upon which this statute has been uniformly sustained. While the protection of the property of adjacent proprietors is an incidental object to the statute, its main and leading one is the protection of the traveling pubhc. To insure such protection railroads are impera- tively required to fence their tracks, and the penal Kabihty is a matter of legislative discretion. Trice v. Raihoad Co., 49 Mo. 438. See also Isabel v. Railroad Co., 60 Mo. 475; Barnett v. Railroad Co., 68 Mo. 56, 30 Am. Rep. 773; Rit- ledge V. Raihoad Co., 78 Mo. 286; RozzeUe v. Railroad Co., 79 Mo. 349. Compare Berry v. Railroad Co., 65 Mo. 172; Harrington v. Railroad Co., 71 Mo. 384; John- son V. Railroad Co., 80 Mo. 620; Peddicord v. Railroad Co., 85 Mo. 160; Dickson v. Omaha & St. L. R. Co., 124 Mo. 140, 27 S. W. 476, 25 L. R. A. 320, 46 Am. St. Rep. 429. Where the wording of a statute was that, "until such fences and cattle guards shall be duly made, every raUroad corporation owning or operating any such road shall be hable for all damages done to cattle, horses or other domestic animals or persons thereon, occasioned in any manner, in whole or in part, by the want of such fences or cattle guards; but after such fences and cattle guards shall have been in good faith con- structed, such liabilities shall not extend to damages occasioned in part by the contributory negh- gence, nor to defects existing with- out negligence on the part of the corporation or its agents," it was held that the words "or persons thereon" included employees on trains; also, that by the express terms of the statute the defense of contributory negligence was exclud- ed where there was a failure to comply with the statute in the first instance, and that such legislation was within the policy power of the 288 Masteb and Sebvant. §109 does not include protection of employees. ^^^ state. Quaokenbush v. Wisconsin & M. R. Co., 62 Wis. 411, 22 N. W. 519. It was said it is doubtless true that Where a right is given by stat- ute, only those to whom the right is in terms given can avail them- selves of its benefits; but it does not follow that when a duty is so im- posed, a violation of that duty exposes the wrongdoer to liability to no person other than those specifically named in the statute. It may well be said that though previously intended for the benefit of one class, it was also intended for the protection of all who need such protection. The purpose of fence laws of this character is not solely for the protection of proprietors of adjoining fields; it is also to secure safety to trains. Atchison, T. & S. F. E. Co. V. Reesman, 9 C. C. A. 20, 60 Fed. 370, 23 L. R. A. 768. It was held in lUinois that such a statute describes a duty which extends to the protection of trainmen as well as to the owners of stock. Terre Haute & I. R. Co. V. WUliams, 172 lU. 379, 50 N. E. 116, 64 Am. St. Rep. 44. 246. Thus, the Iowa statute (sec. 1289 Code) provided for fenc- ing the right of way and made the company liable to the owner of stock MUed for its value, and it was held that the company owed no duty to its employees of fencing its tracks, nor constructing its roads with any other curves or grades than it sees fit, but that they must be allowed to determine for them- selves whether they will fence in all places within their right of way. Patton V. Central Iowa R. Co., 73 Iowa, 306, 35 N. W. 149. The Min- nesota statute provided that "any company or corporation operating a line of raUroad in this state, and which company or corporation has failed or neglected to fence said road, . . . shaU hereafter be liable for all damages sustained by any person in consequence of such failure or neglect," and it was held that a fireman who was injured by his train colliding with cattle on the track could not recover under the statute. Fleming v. St. Paul & D. R. Co., 27 Minn. Ill, 6 N. W. 448. See also Redfield on Rail- ways, p. 516 et seq., vol. 1. The Virginia statute requiring railroad companies to fence their tracks and providing that in case of injury to property on any part of the track not so fenced, negligence need not be proven, has no application for the protection of railroad employees. Newsom's Adm'r v. Norfolk & W. R. Co., 81 Fed. 133. The statute of Virginia only required a railroad company to fence its right of way through enclosed lands, and hence where cattle escaped from a cattle pen constructed and maintained by shippers in an open field, from the faulty construction of the cattle pen, and injured an employee, the company was not liable. Carper v. Receivers of Norfolk & W. R. Co., 23 C. C. A. 669, 78 Fed. 94, 35 L. R. A. 135. The Tennessee statute making aU persons or corporations owning or operating railroads in that state absolutely liable for all live stock killed or injured in or near their tracks by a moving train, subject to the defense of contributory negligence, but exempting railroad § 109 Sate Place to Wobk. 289 In other courts it tas been held that while the failure to fence the road is not, where injury to persons results, as in the case of animals, conclusive of liability irrespective of neghgence, yet an action will He for per- sonal injxiry, and this breach of duty will be evidence of neghgence. ^^' Assumed risk and contributory negligence. Where a conductor was killed by his train colKding with cattle which strayed upon the track, the right of way not having been fenced, it was held, as a matter of law, that the company was not liable. This result was placed upon the ground that the plaintiff must have known that the right of way was not fenced and assumed the risk.''*' Where, however, an employee was injured in a collision by the train upon which he was working with cattle upon the track, it being alleged that the cattle were thus upon the track through the insufficiency of the fencing of the right of way, it was held that the question of the defend- ant's neghgence and the assumption of the risk on the part of such employee were proper questions for the jury.^*^ companies from such liability if the wholly different from the statute track is enclosed by a lawful fence, considered in Quackenbush v. Wis- and good and sufficient safegniards, consin & M. R. Co., 62 Wis. 411, imposes no duty on railroad com- 22 N. W. 519.) Curry v. Chicago panics to employees to fence their & N. W. R. Co., 43 Wis. 665. tracks. A railroad, under the 247. Tho duty is d>ie (speaking common! law, owes no duty to of a municipal ordinance), not to servants to fence its tracks. GUI the city as a municipal body, but V. Louisville & N. R. Co., 160 to the public, considered as com- Fed. 260. Where the statute re- posed of individual persons, and quired railroads to be fenced each person specially injiu-ed by the and directed the liability of the breach of the obHgation is entitled companies for injury to domes- to his individual compensation and tie animals by failure to fence, to an action for its recovery, it was held that this statute was Hayes v. Michigan C. R. Co., Ill designed to protect trains on U. S. 228, 28 L. Ed. 410, 4 Sup. railroads at least as much as domes- Ct. Rep. 369. tic animals straying upon them; to 248. Sweeney v. Central Pao. repeal the common law rule, and to R. Co., 57 Cal. 15. protect not only the adjoining land 249. Magee v. North P. C. R. owners, but the public generally. R. Co., 78 Cal. 430, 21 Pac. 114, 12 (The statute in question was Am. St. Rep. 69. 1 M. * a— m_ 290 Master and Servant. § 110 The Wisconsin court held that, under the particular statute, the right of action was for neghgence. The rule of absolute habiUty was said to be as "unwise in policy as unsound in legal construction. " It was further said : ' 'And the rule is universal that in actions for injury by negli- gence, contributory neghgence sufficient in degree will defeat them." Still later in Wisconsin, in construing a particular statute, it was held that the duty on the part of the railroad company, to fence within a given time, was, by the, very words of the statute, absolute, and precluded the defense of contributory negligence or of assumption of the risk; that such effect was in the nature of a penalty and the regulation was within the pohce power of the legisla- ture. 26" § 110. Structures near track. Duty in respect to. The nearness of structures to railroad tracks, whether constituting neghgence or the contrary on the part of the raihoad company, has been a subject of frequent investi- gation and determination by courts. As will be seen by reference to the decided cases, the courts are not agreed. In many jurisdictions the doctrine aheady announced that the character of the premises, including the location of structures, is a matter within the judgment and discretion of the company, and that the only questions involved are assumed risk and instruction and warning, is reiterated; while others hold to the doctrine that it is a question for courts to determine whether they are so located as to be reasonably safe. The cases involving this question are numerous. In nearly all the question of assumed risk is discussed and involved. To avoid repetition it has been deemed advisable to place most of them under that head, retaining here sufficient only to illustrate what has been held in respect to the master's duty, together with the reasons given for such determination. Thus it was stated : "It is not negligence per se to maintain structures 250. Quaekenbush. v. Wiscon- sin & M. R. Co., 62 Wis. 411, 22 N. W. 519. §110 Safe Place to Woek. 291 dangerously near the track. The company is not liable for danger but for negligence. It may be liable for neglect of duty ia failing to warn an employee of the danger, but such -warning is not required where the employee has knowledge oris chargeable with knowledge thereof." ^" And it was also stated by another court that courts take judicial notice that it is usual for sidings to be so con- structed as to permit cars to stand close to biuldings. This is uniformly true of elevators and coal bins. There is no neglect of duty on the part of railroad companies in maintaining a side track close to such structures. ^^^ 251. Mobile & 0. R. Co. v. VaUowe, 214 lU. 124, 73 N. E. 416. The Minnesota court recently an- nounced the doctrine that, whether a necessary structure such as a post sustaining a tell tale wire, was necessarily placed and maintained between tracks, was a question for the jury. That when practicable they must be placed at a reasonably safe distance from the track, and when impracticable notice and warning to employees is necessary. It is stated in the opinion that there was evidence tending to show that the pole could without impair- ing its usefulness have been placed between the passenger and another track twenty feet apart. What such evidence was, and whether by competent experts, is not dis- closed. It did appear that the plaintiff, a fireman, injured while leaning out from the cab, by con- tact with the pole, had been on that run for two months. KoUer v. Chicago, St. P., M. & O. R. Co., 129 N. W. (Minn.) 220. The Wisconsin court, notwithstanding what was said in Dorsey v. Ph i l l ips & C. Const. Co., 42 Wis. 583, have clearly stated what in most juris- dictions has been declared or recog- nized as the law with respect to the location of such structures. Thus it is said; "The switch and cattle guard was necessary appurtenances of defendant's business. It neces- sarily possessed such large measure lof freedom in laying out its raUroad yard and arranging the instrumen- talities in. connection therewith, that pretty clear evidence would be required to warrant condemning it of being actionable negligence'in the matter, with no evidence what- ever in that respect, but on the con- trary affirmative proof in abund- ance that it acted with all the care ordinarily exercised in such matters, there was no controversy on the question for solution by a jury. This court has often held, in terms or in effect, that if a person acts in the customary way and is not obviously careless, he cannot properly be convicted of having been guilty of actionable negli- gence." Jensen v. Wisconsin Cent. R. Co., 128 N. W. (Wis.) 982. 252. Pahlan v. Detroit, G. H. & M. R. Co., 122 Mich. 232, 81 N. W. 103. See also Southern R. Co. v. Carr, 82 C. C. A. 240, 153 Fed. 106. 292 Master and Sbevant. § 110 Force of expression "nearer than necessary." The expression has been used by some courts that it is negligence to maintain certain structures (cattle chutes) nearer the track than is necessary. ^^' By others so to maintain them as to imnecessarily expose employees to loss of life or limb.^^* That the maintenance of the spout to a water tank was inexcusably so near the track as to unnecessarily ex- pose employees to danger is neghgence. ^" The question is naturally suggested, who is to determine the question of necessity or when unnecessarily dangerous? These courts have held that it is a question for the jury. How is it to be determined? This question has not been answered directly, but it has been determined upon the mere conjecture of a jury, merely exercising their own impracticable judgment. It is but just to say that in the federal case cited in the preceding note, supra, the particular dcAdce was a water spout, and the negligence claimed was that it was so arranged that it hung too low over the track, to permit an employee when upon a furniture car to pass under it, in safety, it appeared that with practically no expense it could have been elevated without in any manner inter- fering with its efficiency. It was really a case of negligent construction. Space sufficient to clear employees at side of car. In some cases it has been held that the placing of a structure so near the track that a brakeman, in mounting a car, may be struck by it, is negligence. "* '253. Smith v. Spokane Falls 255. Choctaw, O. & G. R. Co. & N. R. Co., 52 Wash. 350, 100 v. McDade, 191 U. S. 64, 48 L. Pac. 747. Ed. 96, 24 Sup. Ct. Rep. 24; Lind- 254. Dorsey v. Phillips & C. say v. Norfolk & S. R. Co., 132 N. Const. Co., 42 Wis. 583; Louisville C. 59, 45 S. E. 611. & N. R. Co. V. MilhMns, 21 Ky. 256. Wood v. Louisville & N. L. Rep. 489, 51 S. W. 796; Denver R. Co., 88 Fed. 44; Keist v. Chicago & R. G. R. Co. V. Burchard, 35 G. W. R. Co., 110 Iowa, 32, 81 Colo. 539, 86 Pac. 749; Texas & P. N. W. 181; Galveston, H. & A. S. R. E. Co. V. Swearingen, 59 C. C. A. Co. v. Brown, 33 Tex. Civ. App. 31, 122 Fed. 193. 589, 77 S. W. 832; Hall v. Union § 110 Sape Place to Woek. 293 And in one of the federal courts of appeals it was lield that it is a breach of duty to its employees for a railroad company to build stand pipes so close to its tracks as to endanger employees on passing trains, when engaged in the performance of their duties, and such employees do not assume the risk from such structures merely because they know of their existence and general location.^" It would thus seem that the test of neghgence on the part of the master, as held by these courts, is whether space suffl-cient is left between the car and the structure to permit a person to ascend or descend the side of a car with absolute safety. Such a rule, if carried to its logical con- clusion, would impose upon raihoad companies the absolute duty of maintaining overhead bridges at such elevation above the tracks, and of such width as not to endanger the person of employees, and the same with respect to its tunnels, without regard to other condition of practicabihty or expense — ^without regard to expense, because the mere question of cost, if a test of negligence, would be without any standard or limit, except as framed in each particular case by a jury. The rule was stated by another court in a modified form, as foUows: "It would seem the correct standard by which the neghgence of a railroad company ought to be measured, when the action is for an injury or death to one of its trainmen, arising out of its alleged neghgence, in erecting or maintaining a chute in too close proximity to its track, is that it must be when so erected and maintained, dangerous and unsafe to persons operating its trains, when they are exercising, under the particidar circumstances, ordinary care." 2" Pao. R. Co., 16 Fed. 744, 5 Mc- R. Co. v. Cowley, 92 C. C. A. 201, Craxy 259; Morrisette v. Canadian 166 Fed. 283. Pac. R. Co., 74 Vt. 232, 52 Atl. 258. Cleveland, C. C. & St. 520; Boston & M. R. Co. v. L. R. Co. v. Perkins, 171 Ind. 307, Gokey, 79 C. C. A. 64, 149 Fed. 42. 86 N. B. 405. The Missouri court, 257. Norfolk & W. R. Co. v. while pronouncing a rule that "a Beckett, 90 C. C. A. 25, 163 Fed. railway company is required to 479. See also Chesapeake & 0. place its signal posts, cattle guards, 294 Masteb and Seevant. §111 E. Side Tracks. § 111. Construction. It was said that a railroad company does not owe its employees the same duty as to its side tracks as to its main tracks, as regards the safe condition thereof. The use to which they are put does not require as perfect fences and other structures used in connection with the road, at a safe distance from the track, to the end that they mil not be dangerous to employees in operating its trains," state, that it is not in accord with the rule prevaiUng in many states. It was also stated that it could not be said as matter of law, that a wa^ ter crane placed within 18 J^ inches from the side of a car, is a safe dis- tance from the track. Charlton V. St. Louis & S. F. R. Co., 200 Mo. 413, 98 S. W. 529. The Wis- consin court, quite recently, in carefully guarded language, giving some force to the question of ex- pense, held the master's negligence was a question for the jury where it appeared that a leather company placed and maintained a steam pipe connecting its buildings over a side track at such a height that a per- son standing on the top of a box car would come in contact with it, it appearing that the pipe could have been raised at small cost, so as not to interfere with em- ployees on freight trains. Renne v. United States Leather Co., 107 Wis. 305, 83 N. W. 473. The court evidently was influenced in its determination by its former deci- sion in Dorsey v. Construction Company, supra, and later cases, placing it upon the ground of the master's duty in respect to fur- nishing a reasonably safe place, stating that the court had re- peatedly held that in certain cases it was a question for the jury to determine whether a given struc- ture was so near the track or so near a passing car as to render it unnecessarily dangerous to per- sons employed in operating the train. It has been well said that "juries must necessarily determine the responsibility of individual con- duct, but they cannot be allowed to set up a standard which shall in effect dictate the custom or control the business of the community." Titus V. Bradford, B. & K. R. Co., 136 Pa. St. 618, 20 Atl. 617, 20 Am. St. Rep. 944. The rule announced in the cases last con- sidered would permit juries to determine in every case whether the location of machinery in a fac- tory or mill or the method of oper- ating a railroad, was unnecessarily dangerous, and hence not reason- ably safe. It has been held that the placing and maintaining of a telegraph pole in the space between tracks in a railroad yard, so that the top of a passing freight car was only fifteen inches distant from the pole, tended to show negligenoe on the part of the company. Illinois Terminal R. Co. v. Thompson, 210 lU. 226, 71 N. E. 328. Also the location by an electric railway company of a pole twenty-two inches nearer than the average dis- § 112 Safe Place to Woek. 295 condition. Hence it was held that a raihoad company was not required to ballast its side tracks, and such risks as were occasioned by a failure so to do were assumed by the employees. ^^' It was held that it is not within the province of a jury to determine the method of constructing side tracks.^*" Also that a railroad company was not guilty of negh- gence in not ballasting a side track in such a manner as to cover the ends of the ties near the rails. It was also said it is not within the province of juries to prescribe the manner of using side tracks or the character of apphances which an employer may use.^" § 112. Ballasting. At every stage of the principal subject we meet with disagreement of the covirts as to the duty of the master and in fact every branch of it. This is to be regretted, but it seems that every court feels at Uberty to make a law unto itself. It is nothing more than judicial legislation, in some cases ignoring every principle upon which the gen- tance of its poles on the line, such trie railway company to place a guy pole inclining towards the track six wire over the track of a railway and one-half inches in six feet, company so low that an employee Withee v. Somerset Traction Co., upon a train cannot pass under it 98 Me. 61, 56 Atl. 204. It has with safety, and likewise negligence also been held that no injury having on the part of the railway cpra- occurred on account of the eaves pany to permit a wire to be so of a house projecting over a track located. Erslew v. New Orleans & for fifteen years, the railroad com- N. E. R. Co., 49 La. Ann. 86, 21 pany was not negligent in per- So. 153. mitting them to remain. Southern 259. Batterson v. Chicago & B. Co. v. Carr, 82 C. C. A. 240, G. T. R. Co., 53 Mich. 125, 18 N. 153 Fed. 106. And also not to be W. 584; O'DonneU v. Duluth, S. negligence on the part of a railroad S. & A. R. Co., 89 Mich. 174, 50 company to permit poles to be N. W. 801. See also Stetler v. erected and maintained on prem- Chicago & N. W. B. Co., 46 Wis. ises not owned by it so near the 497, 1 N. W. 112. track as to be dangerous to em- 260. Twitchell v. Grand Trunk ployees operating cars. Chatta- R. Co., 39 Fed. 419. nooga Electric R. Co. v. Moore, 113 261. Ragon v. Toledo, A. A. & Tenn. 531, 82 S. W. 478. It was N. W. R. Co., 97 Mich. 265, 56 held negligence per se for an elec- N. W. 612, 37 Am. St. Rep. 336. 296 Master and Sebvant. § 113 eral doctrine is based, and it seems the duty of a railroad company in respect to its side tracks is no exception. It is stated by an able court, as stated above, that a railroad company does not owe the same duty as to its side tracks as to its main tracks as regards the safe condition thereof; that they are not required to ballast side tracks. It is also stated by another equally learned, that railroad tracks are not ballasted for the purpose of making them safe for the employees of the company to walk thereon, but to make them firm and safe for the passage of trains. That the failm-e to ballast a side track used for storing cars and making up trains is not a breach of duty it owes to employees. ^^^ Another court, however, stated and held that it is as much the duty of a railroad company, which it owes to brakemen, to use the required care in the construction of a spm- track leading to a gravel pit, as in the construction of its main line.^" In another court a jury were permitted to find that it was negUgence on the part of a railroad company not to ballast or fin in between the ties of its side tracks with dirt or cinders, so as to make a smooth surface for employees to walk upon while coupling cars or performing other duties. 2^* § 113. Character of rails. It was stated by one coiu-t that ordinarily a master will not be permitted to show, as a defense to an action by an employee for not furnishing reasonably safe and suitable machinery, appliances or premises, that it was the universal custom of other masters to fiu-nish defective implements or an unsafe place to work. This was said in reference to a custom on the part of a raihoad company of using worn rails for side tracks, and admitting testimony 262. Finnell v. Delaware L., I. & P. R, Co., 140 Iowa, 33, 116 & W. R. Co., 129 N. Y. 669, 29 N. W. 714. N. E. 825. 264. Chicago & B. I. R. Co. 263. Roenfranz v. CMcago, R. v. Hines, 132 lU. 161, 23 N. B. 1021, 22 Am. St. Rep. 515. § 114 Sai'b Place to Wobk. 297 of road masters in effect that the track was in a reason- ably safe and good condition. ^^' The general principle or rule stated, without doubt is the law as maintaiaed by most courts. The vice, if any, is in its appheation, as the court assumed that the furnishing of worn raUs for the construction of side tracks rendered such tracks defective. Another court was not of the same opinion. Thus, where a railroad company had taken partially worn rails from its main track and put them in a side track, and offered to prove that this was the universal custom of other roads, which proof was excluded by the trial court, it was held error, that such evidence was admissible to rebut the inference of negU- gence. It was said that from such a use of old rails the conclusion of negUgence does not arise as a matter of com-se. It was so doubtful that the defendant was entitled to show that its conduct was in accord with that of others engaged in the same business, thus leaving it for the jury to determine the question of ordinary care.^" Closeness to main track. It was held that neghgence could not be predicated on the construction of a side track six feet and ten inches from the main track. ^*^ VI. "Condition" op Premises. A, In General. § 114. Introductory. The duty of the master extends, as has been stated, to the exercise of reasonable care to "maintain" the place of work in a reasonably safe condition. Such duty is personal, and hence the mere fact that the premises are not in a reasonably safe condition, where the master is charge- able with knowledge thereof, is ordinarily sufficient to 265. Lake Erie & W. R. Co. v. M. R. Co., 42 Minn. 79, 43 N. W. Mugg, 132 Ind. 168, 31 N. E. 564. 787. 266. Doyle v. St. Paul, M. & 267. Raines v. Great Northern R. Co.. 53 Wash. 570, 102 Pao. 431. 298 Mastee and Sbevant. §114 charge him with a lack of reasonable care, and with ha- bOity for injuries sustained by a servant caused by such neglect of duty. What is such reasonable care in a given case, depends upon the surroundings and the dangers to be fairly apprehended and encountered. ^^^ "Reasonably safe" is a flexible term. As applied to the master's duty in "maintaining" the place in a rea- sonably safe condition, it is not required that it shall be in such condition for aU purposes, but only when used in the ordinary way and for the purposes intended. ^^' In previous chapters the general rules relating to the master's duty and his Uability has been stated and con- sidered. The application of those rules as to the "condi- tion" of specific premises is the purpose of this subdivision. Thus, the master has been held liable on the groimd of unsafe place to work where the place was oinlighted or not sufficiently Kghted.^^'* 268. Devlin v. Railway Co., 87 Mo. 545. 269. International & G. N. R. Co., V. Reiden, 48 Tex. Civ. App. 401, 107 S. W. 661. 269a. Sawyer v. Rumford Falls Paper Co., 90 Me. 354, 38 Atl. 318, 60 Am. St. Rep. 260; Devaney v. Degnon-MoLean Const. Co., 79 App. Div. 62, 79 N. T. Supp. 1050 [affirmed in 178 N. Y. 620, 70 N. B. 1098]; Nash v. Kansas City Hy- draulic Press Brick Co., 109 Mo. App. 600, 83 S. W. 90; Jensen v. Hudson Saw MiU Co., 98 Wis. 73. But see Dene v. Arnold Print Works, 181 Mass. 560,64 N. E. 203 ; Ryan v. Armour, 166 lU. 568, 47 N. E. 60. A clerk in the employ of the defend- ant was injured by the sharp point of a ring in the nose of a dressed hog being driven into the plaintiff's leg. The negligence charged was a want of sufQcient light on the plat- form and in the car in which the hogs were loaded and the manner of injury was in running the truck against some object in the car which could not be seen whereby the hog was rolled from the truck and the injury was sustained as aforesaid. It was held that the question of the master's neghgence was for the jiury. Carlson v. Great Northern R. Co., 106 Minn. 254, 118 N. W. 832. It was held a personal duty on the part of the master to properly light a stairway in the night time, used by employees, in goiag from their place of work in a factory. It had been the custom to furnish such light but was omitted on the occa- sion in question. EngUsh v. Ami- don, 72 N. H. 301, 56 Aa 548. § 115 Safe Place to Woek. 299 B. Beidges. § 115. In general. It was stated by the Texas court that no legal presump- tion exists that a railroad company keeps its bridges in good repair.^™ This ruling certainly is not in accord with the rule almost -universally prevailing. It being the duty of a rail- road company to keep its apphanees, premises and struc- tures in a reasonably safe condition of repair, or rather, to exercise reasonable care in that respect, the universal rule of law applies, that of presumption of performance of duty. The whole law of negligence, except where other- wise provided by statute, as in Ohio in particular cases rests upon this presumption, and hence the burden is cast upon the plaintiff to show neglect or faHiu-e of duty on the part of the defendant. The fact that in some jmis- dictions the plaintiff must prove that he was in the exer- cise of ordinary care, does not weaken the force of this presumption, but rather strengthens it. The reasoning is in such cases, the plaintiff must show he was in the exer- cise of due care to overcome the presumption that the de- fendant was in the exercise of due care, as well as to show that the defendant's want of it was the sole and proximate cause of the injury. In other jurisdictions, where the burden is cast upon the defendant to show the lack of due care on the part of the plaintiff, the rule rests upon the pre- sumption that he was in the exercise of due care. The question of neglect of duty m maintaining bridges in proper repair may rest upon many varying conditions. In some eases the defect is manifest; in others, it is the condition of the structure with reference to the purpose for which it is used. Thus, where a train was derailed and a bridge gave way, it being shown that the bridge was suf&cient and safe for the passage of trains over it, there was no neglect of duty on the part of the company. That the duty on the part of the company as to reasonable 270. Missouri, K. & T. R. Co. V. Parker, 20 Tex. Civ. App. 470, 49 S. W. 717, 50 S. W. 606. 300 Mastbb and Servant. §§ 116, 117 care in tlie construction and maintenance of its bridges was limited to the uses and purposes for which they are constructed.^'^ The mere fact that a bridge which was constructed by competent engineers, collapsed during an extraordinary flood, is not sufficient to show that the bridge was not sufficient or in a smtable condition.^" It was held, however, that the construction of a trestle over a stream, subject to a rapid rise of several feet, with only a narrow span for the passage of drift wood, resting on banks and not anchored to the rock in the bed of the stream, was insufficient and not suitable, and the com- pany was thus chargeable with neglect of duty. ^' ' § 116. Adoption by use. A street railway company which uses a city bridge for its tracks thereby adopts such bridge as one of its appliances and where chargeable with knowledge of its defective condition is liable to one of its employees whose iujiuies are caused by such defects. ^'^ C. Buildings. § 117. In general. In determining whether a building is a safe place to work, a distinction is of course necessary according to whether the building is in course of construction or is a completed building. In the former case, the rule as to safe place to work is only of Umited application if appUcable at aU; in the latter case the rule generally applies in full force the same as to any other place to work, and it is the duty of the master to exercise ordinary care to keep the building in a safe condition for his servants working therein or about.'''* 271. St. Louis & S. F. R. Co. 274. City of Indianapolis v. V. HiU, 79 Ark. 76, 94 S. W. 914. Cauley, 164 Ind. 304, 73 N. E. 691. 272. McGuire v. Lehigh Valley 275. Where the wall of a build- R. Co., 215 Pa. St. 618, 64 Atl. 825. ing had become bulged and propped 273. Terre Haute & I. R. Co. v. and a guy rod supported a der- Fowler, 154 Ind. 682, 66 N. E. 228, rick which ran through an opening 48 L. R. A. 531. in the wall of or near such place, §118 Sapb Place to Woek. 301 § 118. Fire escapes. Statutes have been enacted quite generally reqtairing the maintenance of fire escapes upon buildings of a certain specified character. Such duty did not exist at common law. The owner of a building not pecuharly exposed to the such rod being held by iron plate fastened on the outside, and such plate, though of sound iron, broke, thus releasing the rod and causing the derrick to fall and injure an employee, the question of the mas- ter's neghgence was for the jury. Ashley Wire Co. v. Mercier, 163 lU. 486, 45 N. B. 222. Where/a corporation rented and used a building for the storage of paper and it collapsed, killing one of its employees, and it did not appear that any one connected with the corporation had any notice of the defect, except possibly one who was a mere foreman, it was held there could be no recovery from such corporation. The mere fact that the btzilding collapsed is not proof that the lessee neghgently over- loaded it. McKenna v. Paper Co., 176 Pa. St. 306, 35 Atl. 131. Where an employee was injured by stones falling from the coping of a building, and it appeared they were not fastened by iron rods to the wall, and there was some evidence that rods were necessary, and there was evidence also that the work was reasonably safe without them, it was held that the question of de- fendant's neghgence was for the jury. Gibson v. SuUivan, 164 Mass. 557, 42 N. E. 110. Where a common laborer was injured while at work in connection with the erection of a building by the roof of a shed falling upon him, which had been rendered unsafe and in- secure by the throwing upon it of large amounts of snow and debris, and it appeared it had remained upon the shed several days before the roof feU, it was held that the owners were liable for permitting such a weight to be thrown and re- main upon the roof of the shed in which the plaintiff was required to perform his work, as rendered his work unnecessarily hazardous. It was assumed that the material was so thrown upon the roof under the direction of the defendant's super- intendent or foreman, and that they knew it was there and they were charged with knowledge of the danger. Johnson v. First Nat. Bank, 79 Wis. 414, 48 N. W. 712, 24 Am. St. Rep. 722. Plaintiff, who was a contractor to put in elevators in defendant's building, while ex- amining the premises for such pur- pose stepped upon an insecure scaffold erected by other contrac- tors who were putting in a tile floor- ing and was being used by them. It was held the employer was not liable for failure to furnish a safe place to work. WhaUon v. Sprague Electric Elevator Co., 1 App. Div. 264, 37 N. Y. Supp. 174. The use of movable steps in the cellar of a building, which slipped causing injury to an employee, was held not to be negligence in the absence of proof that they were unsafe in themselves or unsuitable for the place. Regan v. Donovan, 159 Mass. 1, 33 N. E. 702. 302 Masteb and Servant. § 118 danger of fire from the character of the work to be carried on within it, was not bound to anticipate what was merely a remote or possible danger or that its occurrence would put in jeopardy the lives of his workmen. The ordinary means of escape by stairs, halls, doorways and windows, might reasonably be deemed sufficient, and the common law did not require, where the building was properly constructed, for its intended use and purpose, that extra and imusual precautions should be adopted to protect the occupants against a danger for which the owner would be in no manner responsible, and which he was not reasonably bound to anticipate.^" Therefore, the particular statute prescribes the measure of duty. Such statutes usually impose a penalty for disobedience of its provisions, and do not in aU cases, in express terms, impose a habihty upon the owner for injuries that may be sustained by his employees or others. The question therefore is involved, whether the owner is so liable in case of neglect to comply with the condition of the statute. In some jurisdictions such a neglect, where the statute merely imposes a penalty for disobedi- ence, does not create a hability for injuries thus sustained, while in others, the disobedience itself is negUgence per se, and in others it is prima facie evidence of neghgence. It is a general principle, however, that whenever one owes another a duty, whether such duty be imposed by volun- tary contract or by statute, a breach of such duty causing damage gives a cause of action. Statutes providing for fire escapes, the duty imposed upon the owner, is imposed solely for the benefit of the occupants, and in ease of fac- tories and the hke, for the benefit and protection of operatives, so that they may have mode of escape in case of fire. ^''^ 276. Pauley v. Steam Gauge & 277. WiUy v. MuUedy, 78 N. Lantern Co., 131 N. Y. 90, 29 N. E. Y. 310, 34 Am. Rep. 536; Pauley v. 999, 15 L. R. A. 194; Jones v. Steam Gauge & Lantern Co., 131 Granite Mills, 126 Mass. 84, 30 N. Y. 90, 29 N. E. 999, 15 L. R. A. Am. Rep. 661; Keith v. Granite 194. MiUs, 126 Mass. 90, 30 Am. Rep. 666. § 118 Sate Place to Woek. 303 Hence, an employee sustaining injury caused by an omission to comply with such, a statute, may recover damages. "Whether statute complied with. What is a substantial compliance with a statute re- quiring fire escapes is the question usually presented, and in fact the only one, as the master's duty for entire neglect seems to be absolute unless excused by the acquiescence or conduct of the injured party. Screwing down Ught and easily raised window sashes adjoining the fire escape on a manufacturing establish- ment, and requiring employees to keep them closed in order to maintain a high temperature necessary to the work carried on, do not constitute neghgence or breach of duty towards employees, and is not a violation of the statute prescribing the maintenance of fire escapes embrac- ing windows and connecting with the interior by easily accessible and unobstructed openings."^ Where there were no outside fire escapes, and the only means of escape fl-om a burning building was a stainv^ay and scuttle leading to the roof and a series of inside inclosed wooden stairways leading from floor to floor to the ground, a young girl was burned while escapiag from an upper floor. It was for the jury to say whether there was a safe or sufficient means of escape from the fire, and whether the failure to comply with the statute, relative to fire escapes ia factories, (L. 1897, ch. 415) and the detention residting therefrom caused or contributed to her injuries. She did not assume the risk, as matter of law, even if she knew of the absence of fire escapes."' A factory, in part, was three sections in height. There were five windows on the side of the three story part, which looked out on the flat roof of the two-story part, the middle window extending to the floor of the third story and to within one foot of the flat roof, the other windows being 278. Huda v. American Glu- 279. Arnold v. National Starch cose Co., 154 N. Y. 474, 48 N. E. Co., 194 N. Y. 42, 86 N. E. 815, 897, 10 L. R. A. 411. 21 L. R. A. (N. S.) 178. 304 Masteb and Servant. § 119 about three feet above sucli roof. Along one side of the two-story part there was a lean to, the roof of which was six or seven feet below the roof of the two-story part and about seven feet from the ground, with a firm ladder connecting the two roofs. There were inside stairways three or four feet wide at each end of the three-story part leading from floor to floor to the ground floor below. It was held that the factory in question was, at the time of the passage of c. 335 of Laws 1895, "providing that every factory building three stories or more in height, in which more than twenty-five people are employed, shall be provided with iron fire escs^pes on the outside of the building, but that this provision shall not apply to any buildings 'now erected' which are supplied with a reason- able fire escape or fire escapes," supplied with a fire escape within the meaning of that statute. ^^^ § 119. Floors. Cases are numerous in which the master has been charged with negligence with respect to the condition of floors in his buildings. The questions most often involved are whether the condition is the result of the act of a fellow-servant or a risk assumed. In some cases the alleged defect was in the floor itself, permanent in character, occasioned by use or improper construction. That it is a duty personal to the master to exercise reasonable care to maintain floors in his buildings in a proper state of repair, as weU as to maintain his apphances or other prem- ises in such condition, is beyond question. Where the condition is not merely transitory a material question often is whether the condition alleged is such a defect as wiU constitute a neglect of duty. The general rule appUes that a floor should be reasonably fit for the purpose, that is, for the intended or accustomed use. Thus a floor on which heavy weights are moved should be properly supported, and such supports kept in proper repair. ^" 280. Dunlavey v. Racine M. 281. Thompson v. American & W. I. Co., 110 Wis. 391, 85 N. W. Writing Paper Co., 187 Mass. 93, 1025. 72 N. E. 343. <^ 119 Safe Place to Woek. 305 Uneven condition. And -while a floor, unevenly worn, was held not a breach of the master's duty in respect to the place of work, but that a servant assumes the risk;^^^ it was held that a place in an iron floor being so broken that one wheel of a truck loaded with hot castings pushed by employees, dropped into the hole, causing castings to fall from the truck thus injuring one of the employees, ren- dered the place not reasonably safe and the master was liable. ^^' Hole unguarded. Where a youth about eighteen years old was injured while employed in taking boards from an edger and placing them on a trimmer in a saw miU, in being pushed backward from a board of imusual length coming to Mm, into a hole in the floor dangerously near where he had to stand in the performance of his duties, which hole was im- guarded, and his hand was thus thrown in contact with the saw. It was held the master was liable. ^** Nail in. A nail in a floor near a saw, sticking up above the surface from an inch to an inch and three-fourths, against which an employee stumbled over onto a saw, was held such a defect as rendered the master liable. It was not a transitory risk, the condition of the nail showing it had been there a long time. It was usually covered with shavings and the risk was not obvious. ^^^ Opening in. Evidence was held sufficient to establish the master's negligence in respect to a defective floor, where an opening two feet square had been insecurely covered over without 282. McLaughlin v. Atlanta Lumber Co., 91 Minn. 317, 97 Mills, 27 R. I. 158, 61 Atl. 42. N. W. 977. 283. Missouri Malleable Iron 285. Young v. Snell, 200 Mass. Co. V. DiUon, 206 lU. 145, 69 242, 86 N. E. 282, 19 L. R. A. (N. N. E. 12. S.) 242. 284. Bredeson v. C. A. Smith 1 M. * S.— 20 306 Masteb and Servant. ^119 replacing the joists that had been cut out, and it appeared that a year before it had broke under the weight of a girl and then covered with a thin packing box hd. ^** Slippery condition. NegUgence cannot be presumed from the mere fact of the shppery condition of a floor. There must be some proof that it is neghgence to maintain a floor in that condition. If such were the usual and necessary condition it could not be neghgence.''*' In most of the decided cases, other questions than that of the master's duty in respect to the condition of the floor, seems to have influenced the court. Thus it was held, on evidence that a floor constructed of hard maple, would from use become worn and shppery, and at the place where an inexperienced servant was operating a machine had become so worn and shppery and was covered with dust and shavings, the servant not knowing of such condition, the question of the master's neghgence was for the jury to determine.^** The inexperience of the servant would seem to have been the material question and the duty to warn or instruct. It certainly ought not to be held a breach of duty to maintain a floor, otherwise in good condition, simply be- cause it had become somewhat worn smooth. The condi- tion of a floor, by reason of its being worn smooth,was held, by the same court, to be within the rule of the master's duty, and the question of its being a reasonably safe place for the servant to perform his work, on that account, was a proper question for the jury. ^*® Where, however, an employee was injured by his feet getting caught between a shaft and the floor, the floor being shppery, causing him to shde or faU, the dangerous character of the machinery being in plain sight, it was 286. O'Brien v. Sullivan, 195 N.W. 900; Shannon v. Willard, 201 Pa. St. 474, 46 Atl. 130. Mass. 377, 87 N. E. 610. 287. Swift & Co. V. Holoubek, 288. Acme Harvester Co. v. 60 Neb. 784, 84 N. W. 249; Swift & Chittick, 230 lU. 658, 82 N. E. 647. Co. V. Holoubek, 62 Neb. 31, 86 289. Weber Wagon Co. v. KeM, 139 111. 644, 29 N. E. 714. ^§ 120, 121 Sapb Place to Woek. 307 held that the master was not required to box the machin- ery; that as it was the normal condition of the floor to be wet and sUppery, it was a risk assumed; that as the dan- gerous character of the machinery was in plain sight, no duty rested upon the master to point it out.^^" A different proposition was involved where the shppery condition of a passageway was dangerous, when used by employees while carrying molten metal, by reason of an accumulation of ice and snow.^^^ It is evident that such place was not reasonably safe for the pm-pose for which used, that the master was charge- able with knowledge of its condition, and its duty was to have removed or prevented the source of danger. § 120. Steps, slippery condition. Steps leading from a factory, which employees were required to use in going to and returning from their work, were held to be within the rule of the master's duty.^^'' § 121. Trap doors. It is a principle universally recognized that the care required of a master is such as is commensurate with the danger. Trap doors, as the designation imphes, are at best dangerous traps. Thus it was held, where a trap door is maintained in the haU of a bviilding, it is the duty of the master when it is open to provide barriers or give warning to employees who have occasion to pass in the haU. If he provides such barriers he may entrust their use to his employees and if they fail to use them and injury thereby is occasioned, such negUgence is that of a fellow-servant. If articles were selected by such servants to constitute barriers, without the knowledge of the master as to such custom, and on the particular occasion they were not 290. Murphy v. American Rub- 292. Fitzgerald v. Connecticut bar Co., 159 Mass. 266, 34 N. E. River Paper Co., 155 Mass. 155, 268. 29 N. E. 464, 31 Am. St. Rep. 537; 291. Smith v. Peninsular Car Mahoney v. Dore, 155 Mass. 513, Works, 60 Mich. 501, 27 N. W. 662, 30 N. E. 366; Osborne v. London 1 Am. St. Rep. 542. & N. W. R. Co., 21 Q. B. Div. 220. 308 Mastee and Servant. § 122 used, in such case tlie master would not be relieved from liability. =i»' It was held a question for the jmy whether the method of maintaining a trap door in a floor?- without hinges and which fitted tight in closing, was negUgence on the part of the master in respect to its duty to furnish a safe place in which its employees were required to work.^^* D. Dynamite, Storage of. § 122. As making place unsafe. A place of work may be made unsafe by reason of the use to which it is placed by the master. Although inherently safe, such use may change its character to that of unsafe. Thus the storage of dynamite, or other explosive sub- stances, may create a hazard which renders the place un- safe, as where dynamite is stored ia dangerous quantities in the only room provided for workmen for shelter and storing their tools, clothing and eating limches. The master is not excused by the fact that the explosion of dynamite so stored is an unusual or extraordinary occur- rence.^^ An employer was held negUgent in the failxire of his duty in respect to the place of work in that he permitted explosive dynamite caps to be in the boiler house, where an employee was eating his lunch, by the invitation or permission of the foreman in charge, some of which ex- ploded injuring an employee. ^'® And clearly guilty of negHgence in leaving a quantity of dynamite in an uncovered box within a few feet of tents where men were accustomed to eat and sleep, in which were stoves burning soft coal, and where the men were 293. Falardeau v. Hoar, 192 mour & Co., 84 Neb. 224, 120 N. W. Mass. 263, 78 N. E. 456. See Kupp 1110. V. Rummel, 199 Pa. 90, 48 Atl. 679. 295. Brown v. West Riverside 294. Bateman v. New York C. Coal Co., 143 Iowa, 662, 120 N. W. & H. R. R. Co., 178 N. T. 84, 70 732, 28 L. R. A. (N. S.) 1260. N. B. 109. See also Debus v. Ar- 296. Heldmaier v. Cobbs, 195 HL 172, 62 N. E. 853. § 123 Safe Place to Wobk. 309 accustomed to smoke cigars and pipes and to light matches, and ashes from the stoves were removed daily and thrown indiscriminately upon the premises. Dyna- mite ignited and was burning when an employee threw a blanket over it to smother it, and it exploded causing injury.^" It was also held that the neghgence of employees in placing dynamite near a fire to thaw out was imputable to the master, and a breach of the duty which requires him to furnish a reasonable safe working place for his employees. ^^* E. Electrical Appliances. § 123. Care to be exercised. The important question, where electrical appliances are involved, seems to be what constitutes ordinary care in a given case. By reason of the great danger that is incident to the use or in connection with such, greater care is required than ordinarily required in connection with other apphances. The Loidsiana court seems to place not only the exercise of great care, but a degree of extraordinary care on the part of employers whose busi- ness require the use of electricity. Thus it is said the master's duty is to see that its wires are perfectly insu- lated and kept so, or else it must provide adequate guard wires or other sufficient safety apphances as means of pro- tection. The fact that frequent iaspections are made to ascertain the condition of the wires and remedy defect- ive insulation does not reheve the company from Ha- bility. If a span wire has become dangerously charged with the_ electrical current, the company's inspection should have been thorough enough to have discovered it. It is the company's business to know the dangerous 297. Anderson v. Smith, 104 298. Angel v. JelKco Coal Min- Minn. 40, 115 N. W. 743. See also Sag Co., 25 Ky. L. Rep. 108, 74 Froeberg v. Smith, 106 Minn. 72, S. W. 714. 118 N. W. 67. 310 Masteb and Sebvant. § 124 defects in or along its lines, and knowing, to safeguard the same. "'' The same in effect was held by the North Carolina court, stating that an electric light company is boimd to use the utmost care in the construction and repair of its appli- ances. ""' §124. Specific duties. The master's duty, operating electric appliances, to- wards its Unemen, is that of protecting them by perfect insulation at places where they are required to go iu the discharge of their duties.^" It seems, however, that ia another court it was held that the duty to insulate all its wires, was not absolute on the part of an electrical company, but rather a question for the jury whether exposed spUces should be insulated.'"^ Where an electrical company placed its wires through the branches of trees, so that the high potential wires charged with 2300 volts of electricity were within twenty- six inches of low potential wires, and proper construction required those wires to be at least five feet apart, and even when so placed should not be permitted to pass through the branches of trees, thereby endangering contact, it was held guilty of negUgence as matter of law.'"* Failure on the part of an electric company to comply with a municipal ordinance requiring insulation of wires, and overhead conductors to be protected by guard wires or other suitable device, was held to be prima facie negUgence.'"* 299. Potts V. Shxeveport Belt 302. New Omalia T. H. E. L. R. Co., 110 La. 1, 34 So. 103, Co. v. Kombold, 68 Neb. 54, 93 98 Am. St. Rep. 452. N. W. 966, 97 N. W. 1030. 300. Home v. Consolidated R. 303. Grimm v. Omaha Elee- L. & P. Co., 144 N. C. 375, 57 S. E. trio L. & P. Co., 79 Neb. 387, 112 19. N. W. 620. 301. Padueah R. & L. Co. v. 304. Commonwealth Electric BeU's Adm'r, 27 Ky. L. Rep. 428, Co. v. Rose, 214 IlL 545, 73 N. E. 85 S. W. 216; Colusa Parrot Min. 780. & Smelt. Co. V. Monohan, 89 C. C. A. 256, 162 Fed. 276. §§ 125, 126 Sapb Place to Wobk. 311 It was held that it was not the duty of a telephone com- pany to inspect its poles below ground and inform linemen which are safe. ^"^ § 12S. Character of appliances. The general rule that a master need not furnish the latest appliances, where those in use are reasonably safe, applies to electrical appUances and machinery.'"* However, such apphances should be furnished or con- structed in such a manner as to be reasonably safe or rea- sonable care exercised to that end. Where a lineman was injured while upon one of the company's poles by reason of the pulling out of a pin, insecurely driven, while at work inspecting wires, it was held that a defect in original construction appeared for which the master was responsible. '"^ Proximate cause. To charge the master with liability, not only must there appear a neglect of duty required, but that such neglect was the proximate cause of the injury. Thus, where it appeared that the proximate cause of injury to a Uneman was the unfastening of his safety belt, while upon a pole, from the ring in his main belt, and this was caused by the spring of the snap coming in contact with the projecting end of a bolt in a cross arm, it was held the company was nothable.'"* F. Elevatob Shafts. § 126. In general. While it is the duty of the master towards his servants who use or work in the vicinity of elevator shafts, to maintain them reasonably safe, yet he is not bound to an- 305. DeFrates v. Chicago U. T. & T. Co., 185 Mass. 82, 69 N. E. T. Co., 243 ni. 356, 90 N. E. 719. 1042. 306. Lancaster's Adm'r v. Cen- 308. Lincoln G. & E. L. Co. v. tral City L. & P. Co., 137 Ky. 355, Thomas, 74 Neb. 257, 104 N. W. 125 S. W. 739. 1S3. 307. Chisholm v. Neir England 312 Master ajs'd Servant. § 127 ticipate or guard against possible injury to employees. He has a right to assume that persons riding in an elevator will not unnecessarily expose themselves. Thus he is not bound to anticipate possible injury to an employee from his feet hanging over the edge of the elevator plat- form and thus come in contact with a small hole in the plastering on the elevator well. '"' It was held a question for the jury whether it was negli- gence for the master to leave a projecting sill or girder in an elevator shaft, which was dark, in close proximity to the elevator itself, which was unenclosed on two sides."" The maintenance of insecure hatches over a freight elevator, near where employees had to go, was held negh- gence as matter of law. An employee stepped upon it, when it gave way, resxilting in her death from falling down the shaft.'" G. QUAEKIES. § 127. Master's duty. The rule so often expressed and applied, with respect to the master's duty in respect to the safety of the place, apphes to quarries, but with this quahfication or exception generally recognized, that it does not apply to the fuU ex- tent to places made unsafe by the act of fellow-servants or places where the work itself makes the place unsafe. Conditions as to safety ia a quarry are constantly chang- ing as the work progresses. Dangers from blasting opera- tions, raising and handling heavy bodies of rock, deep excavations and other conditions are necessarily incident to such work. The question most frequently presented and upon which the Uabihty of the master most frequently depends are those of instruction and warning and assump- tion of risk. The rule of the master's duty, however, was applied where an employee was killed by the falling of a 309. McDonald v. Button, 198 311. Hillebrand v. Standard Mass. 398, 84 N. E. 434. Biscuit Co., 139 Cal. 233, 73 Pac. 310. Olson v. Hanford Produeo 163. Co., Ill Iowa, 347, 82 N. W. 903. § 128 Sate Place to Woek. 313 rock from above in a quarry which had fallen some time before from a higher elevation and lodged, no cause appearing to cause it to fall the second time other than its insecure position. ^^'^ And not applied where a rock feU from the wall or side of the quarry. It was said the duty of the master did not require a close inspection of the surface of the wall, that there was no reason to suppose a rock would faU there- from.'^' Nor was it applied where a servant was directed by the superintendent to throw certain stones in a quarry from a dump into the road to be hauled away. He and other ser- vants had been rolling stones over a chff where they fell on this dump. Half way down the cLLff an overhanging rock which had been left before he commenced his work, fell and injured him. He did not observe the danger. It was held there was nothing about the matter that the officer should know that a special hazard was involved, which those on the dump could not understand better than he could. '^* While in a case in another court where the facts were that a boy fifteen years old was set at work close to a projecting rock, which from some unexplained cause fell and injured him, it was held the defendant was liable upon the ground that it was the foreman's duty to have tested the rock and, if found dangerous, to have removed it.'" § 128. Unexploded blasts. It was held that a master Was not liable for the killing of his servant while working in a cement quarry where fre- quent blasting is required, where the quarry was a safe place to work, and the accident was caused solely by the negligence of the foreman in placing the servant at work in 312. Haggerty v. Hallowell 314. Roytio v. Litchfield, 51 Granite Co., 89 Me. 118, 35 Atl. C. C. A. 197, 113 Fed. 240. 1029. 315. McMiUaii Marble Co. v. 313. White v. Spokane I. & Black, 89 Tenn. 118, 14 S. W. 479. E. R. Co., 54 Wash. 670, 103 Pao. 1119. 314 Master and Seevant. §§ 129, 130 a certain place too near an unexploded blast. It was said tlie master is not chargeable with, the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow-servant, though he happen to be a foreman. ^1* H. Tracks. § 129. In general. The track is one of the instrumentalities of a railroad and therefore something which it is the master's absolute duty, as generally held, though in some states such is not the rule, to employ due care in maintaining and keeping in a condition suitable to the purpose for which it is to be used, that is to say, in such a condition that it can be used with reasonable safety for such purpose. ^^^ Such duty, with respect to the condition of the track, is not that it shall be at aU times safe. A railroad track is constantly wearing out and requires frequent renewals, and it is often necessary for gravel and construction trains to go over and upon unsafe portions of the track to transfer materials needed for repairs. The duty of a railroad com- pany under such dreumstances, is to give timely notice of the insecurity so that the necessary precautions may be adopted to avoid danger. ^^* § 130. Warning, effect of. Thus, where a section foreman discovered a broken rail, and he took reasonable precautions to warn approaching trains, and after this was done he commenced at once to replace the broken rail, and while they were at work and before completing the same, a freight train upon which the plaintiff who was injured was at work ran into the open space causing him injury, it was held, applying the 316. CuUen v. Norton, 126 N. 318. St. Louis, I. M. & S. R. Y. 1, 26 N. E. 905. Co. v. Morgart, 45 Ark. 318; Henry 317. Drymala v. Thompson, 26 v. L. S. & M. S. R. Co., 49 Micli. Minn. 40, 1 N. W. 255; Smith v. 495, 13 N. W. 832. Erie R. Co., 67 N. J. L. 636, 52 Atl. 634, 59 L. R. A. 302. § 131 Safe Place to Woek. 315 foregoing rvile, that there was no neglect of duty chargeable to the company. It was said: "In so far as its employees are concerned, if the track is injured and thereby be- comes unsafe, the company is under no obKgation to repair the same. It must, however, give them timely warning of the injury so that danger may be averted, and having given such notice, it may take whatever time it may deem proper to repair the same." The break in the rail was attributed to the excessively cold weather and could not have been anticipated or prevented. "^ The act of a section foreman, however, in taking up a ran for track repair, without putting out proper signals to warn approaching trains, was chargeable to the company, where an employee upon a train was injured by such negli- gent act on the part of the section foreman. ^^^ § 131. Extraordinary storms and freshets. A railroad company is not required to provide against storms extraordinary and unprecedented in their char- acter in the particular locahty; and hence an employee, whose injuries were attributable to such a cause, was not entitled to recover from the company upon mere proof of the injury. It must appear that the master did or omitted something which his duty required. '^^ If, however, the company in the exercise of ordinary care, had reason to expect or anticipate that its tracks naight be overflowed, as a result from heavy rains, and the track settle from a great accmnulation of water, which could have been prevented by a sufficient outlet, then it might properly be chargeable with negligence in failing to take such precautions or other precautions that would prevent the track from becoming unsafe, and where the track at that point had on previous occasions been over- 319. Henry v. L. S. & M. S. R. Erie R. Co., 67 N. J. L. 636, 52 Co., 49 Mich. 495, 13 N. W. 832. Atl. 634, 59 L. R. A. 302; Chicago See also Devlin v. Railway Co., 87 & A. R. Co. v. Eaton, 194 HI. 441, Mo. 545. 62 N. E. 784, 88 Am. St. Rep. 161. 320. Drymala v. Thompson, 321. Evans v. Wabash R. Co., 26 Minn. 40, 1 N. W. 255; Smith v. 222 Mo. 435, 121 S. W. 36. 316 Master and Seevant. §§ 132, 133 flowed, a jury miglit find that it ought to have anticipated such a result. '2^ § 132. Depression or holes in track. In the preceding subdivision treating of the character of premises and the manner of construction of railroad tracks, the question of ballasting and the master's duty in that respect, was considered. Depressions or holes in the track, not connected with the duty of ballasting, properly relate to the condition of the track and are herein so considered. Quite generally it has been held that de- pressions of such a character, where not essential to the proper condition or operation of the road, may render the place not reasonably safe, and hence evidence of neglect on the part of the company. Thus it has been held that leaving of holes between the ties and near a culvert, into which a brakeman's foot may become caught, while in the act of coupHng cars, renders the place not reasonably safe;'^' that a hole in a track about five or six inches deep into which a brakeman stepped while couphng cars, was such a defect as justified a finding of negligence ;^^* and that it was negUgenee to permit a depression from two to four inches deep and a foot and a haK across at a switching place in a railroad yard.^^^ § 133. Open ditch. It was held a question for the jury whether the leaving of a ditch open beneath a railroad track ia a yard was neghgence. It appeared that nearly aU the switch rods iu the yard had openings or ditches under them of the same general character as the opening in question, for the purpose of giving free play to the switch rod, but there was some evidence that the openings under the other switch rods were much shallower than the one ia question. 322. Stoher V. St. Louis, I. M. Pae. R. Co., 141 Mo. 97, 38 S. W. & S. R. Co., 105 Mo. 192, 16 S. W. 723, 41 S. W. 887. 591. 325. St. Louis, I. M. & S. R. Co. 323. Ulinois Cent. R. Co. v. v. Mangan, 86 Ark. 507, 112 S. W. Sanders, 166 LI. 270, 46 N. E. 799. 168. 324. HoUeubeok v. Missouri §§ 134, 135 Safe Place to Woek. 317 Also that tlie opening in question constituted a part of a continuous drain, and that in other yards all such drains were covered. '^^ § 134. Defects in rails. It was held a question for the jury whether a railroad company was Uable in maintaining a track with low point at a crossing in a yard with fish plates loose, such defect having existed for six months. A car was derailed by reason of such alleged defect causing the death of a brake- man walking at the side of the car being backed over the place. '^^ It was held, however, that the mere fact that there are low joints in a track, does not show a neghgent defect, where such track is otherwise in good order, rock ballasted and trains can run over it safely at forty or fifty miles an hour, and where it appears that the ground was wet at the time of the alleged injury therefrom, and the unevenness was caused by frost coming out of the ground which cannot be avoided in railroading.'^* A jury having found that the injury to a brakeman while on the back of a tender to an engine prepared to make a coupling to a car, was caused by the sinking of the track at that point, thus permitting the drawbars to sUp by, it was assumed that such condition was a defect in the track for which the company was hable to such brakeman for his injuries. That there appeared a breach of duty in failing to inspect and maintaining the track in a rea- sonably safe condition. '2' § 13S. Control of power while repairing electric railway. Where employees were engaged in relaying track on an electric railway, a third rail being used, it was held the 326. Hennessey v. Chicago & Co. v. Benton, 65 C. C. A. 660, 132 N. W. R. Co., 99 Wis. 109, 74 N. W. Fed. 460. 554. See also Hannah v. Connec- 328. Atchison, T. & S. F. R. tiout River R. Co., 154 Mass. 529, Co. v. Croll, 3 Kan. App. 242, 45 28 N. E. 682. Pac. 112. 327. Chicago, M. & St. P. R. 329. Texas & P. R. Co. v. Guy, 23 S. W. (Tex. App.) 633. 318 Masteb and Servant. §§ 136, 137 personal duty of the master to have turned off the power from that portion of the track or keep it turned off while the men were at work, especially where it was not neces- sary to maintain the etirrent thereon.''" § 136. Tell tale, condition of. Evidence was held insufficient to estabhsh defendant's negligence in the matter of defect in the tell tales before a low bridge. The only evidence was that one of the wires were sUghtly bent.'" § 137. Ties, condition of. The rule stated, in substance that the master's duty ex- tends only to the safety of the place when used in the ordinary way and for the purpose intended, was applied where in signalling a train a brakeman upon a freight train stepped to the side of the engine, on the end of a rotten tie, which caused him to fall on the track in front of an approaching train. It was stated, the tie was suf- ficient for the ordinary purpose, and the master could not foresee its use in the manner and for the purpose stated.'" It was held that if the ties of a railroad track are long enough to support the engine and cars so long as they remain on the rails, no inference of negligence can be drawn from the fact that after the engine leaves the rails, it tiims over by reason of some of the ties being old and rotten.'" Where, however, ties are rotten and the rails not suf- ficiently fastened, and a train, from such cause, leaves the track, it is such a defect as renders the place not reasonably safe, and a breach of duty on the part of the company in maintaining the track in such condition. A section man was injured while walking along the track to reach his place of work. "* 330. Keeley v. Boston Elevated Co. v. Reiden, 48 Tex. Civ. App. R. Co., 192 Mass. 481, 78 N. E. 401, 107 S. W. 661. 490. 333. Ward v. Bonner, 80 Tex. 331. Deschenes v. Concord & 168, 15 S. W. 805. M. R. R. Co., 69 N. H. 285, 46 334. Swadley v. Missouri Pao. Atl. 467. R. Co., 118 Mo. 268, 24 S. W. 140. 332. International & G. N. R. 40 Am. St. Rep. 366. § 138 Sai^ Place to Wobk. 319 § 138. Side tracks. The question of ballasting side tracks has been con- sidered. It is no doubt the duty of a railroad company to keep its side tracks in a reasonably safe condition for the use for which they are designed. Such use, as stated, does not require that they shall be constructed or maintained •with the same completeness as main tracks for reasons given. A railroad company will not be justified in per- mitting dangerous holes or excavations to exist, where not essential to maintaining the track or yard in which they are located in proper condition. Thus, it may be suf- ficient to constitute a neglect of duty to cause dirt to be thrown out between the cross ties of a track in a raihoad yard, leaving deep holes into which an employee may inadvertently, while in the discharge of his duty, step or fall;''^ or to permit to remain an uncovered ditch across the track.'" It must appear, however, in order to charge the company with neglect of duty, where not made by direction of one with authority to represent the company, as for instance, it not appearing when or by whom the depression was made, that the company in some manner was chargeable with notice. '*' Rails, condition of. The duty of a railroad company does not extend to keeping such tracks free from every httle projection, such as a flattened or spUntered rail at the joint projecting five eighths of an inch. ' ^* It has been held, however, that it was a neglect of duty on the part of a street railway company to permit its tracks leading into the car barn to become so oily that a 336. Missouri Pae. R. Co. v. 337. Artis v. Buffalo, R. & P. Jones, 76 Tex. 161, 12 S. W. 972, R. Co., 3 App. Div. 1, 37 N. Y. 16 Am. St. Rep. 879; Northern Pao. Supp. 977, 38 N. Y. Supp. 42. R. Co. V. Teeter, 11 C. C. A. 332, 338. Barrett v. Great Northern 63 Fed. 627. R. Co., 75 Minn. 113, 77 N. W. 540. 336. Hollenbeck v. Missouri Pac. R. Co., 34 S. W. (Mo.) 494. 320 Master and Sebvant. § 139 car collided with, the one under whicli an employee was working, resulting in his injury.''' It seems that at least one court is of the opinion and so determined that roughness and uneven conditions of the rails is such a defect in a side track as to constitute negli- gence in permitting such condition, where the effect was that an employee was thrown from a flat car while at- tempting to couple cars, by a sudden jolt of the car,'*" § 139. Obstructions upon. The master's duty requires that side tracks shall be kept free from obstructions which endanger the person of employees who are connected with the use and operation of such tracks.'*^ Such duty includes the keeping of the tracks in a yard clear from ashes'*^ and cinders;'*' and to remove within a reasonable time piles of gravel which have fallen between and outside the raUs. '** Piles of sand. However, the mere placing of sand along the track in small pUes, is not such an act of negligence as wiU permit a recovery by an employee injured in stumbhng upon or against one such while in the attempt to mount a car. It is essential to the proper construction or repair of a track that sand be thus distributed.'*^ It was held that the mere placing of ballast along a rail- road track for use in necessary repairs, at a point a mile from any yard or usual stopping place, was not negli- gence.'** 339. Jelinekv. St. Paul City R. 343. CMttiok v. Minneapolis, Co., 104 Minn. 249, 116 N. W. 480. St. P. & S. S. M. R. Co., 88 Minn. 340. Trinity & S. R. Co. v. 11, 92 N. W. 462. Lane, 79 Tex. 643, 15 S. W. 477, 344. Gillespie v. Grand Trunk 16 S. W. 18. R. Co., 150 Mich. 303, 113 N. W. 341. McClamey v. Chicago, M. 1116. & St. P. R. Co., 80 Wis. 277, 49 345. Hathaway v. East Tenn., N. W. 963. V. & G. R. R. Co., 29 Fed. 489. 342. Southeriand v. Northern 346. Lloyd v. North Carolina Pao. R. Co., 43 Fed. 646. R. Co., 151 N. C. 536, 66 S. B. 604. ^ 140 Sape Place to Woek. 321 Clinkers. And it was also held that the presence of one clinker of unnatural size on the margin of a raUway track, where switching is to be done, and on which a brakeman acci- dentally steps in descending from a moving engiae, will not render the company Uable for a personal injury which he thus sustains. It is not required to constitute premises of such a character reasonably safe, that the surface shall be kept clear of every object which by chance might cause accidental injury. ^*^ § 140. Obstructions at side. Under this subhead, temporary obstructions, as dis- tinguished from permanent structures, are considered, the latter being considered in subsequent pages. It has been said it is as much the duty of a railroad company to keep its tracks in proper repair as it is to keep its machinery, engines and cars in such repair. That to permit the same to be unnecessarily obstructed in such manner as to in- crease unnecessarily the danger to its employees is negh- gence for which the company is responsible. ^^^ Lumber piles and rails. And accordingly it has been held that it was neghgence on the part of a raUroad company to pile or permit the pil- ing of lumber, contrary to custom, so near a side track as to be dangerous. ^^^ And also that it was a failure of duty on the part of a railroad company to leave an iron rail near the track, where a train operative in the performance of his duties was Liable to stumble upon it. '*" Yet in another court it was held that the duty on the part of a railroad company to keep its freight yard iu such condition that its employees may do their work in reason- 347. Lee v. Central R. & B. 349. Bradbum v. Wabash R. Co., 86 Ga. 231, 12 S. E. 307. Co., 134 Miob. 575, 96 N. W. 929. 348. Bessex v. Chicago & N. 350. Hall v. Missouri Pac. R. W. R. Co., 45 Wis. 477. Co., 74 Mo. 298. 1 M. & s.— 21 322 Masteb and Seevant. § 140 able safety, does not extend so far that it may not have shippers and rails near its track. ''^ Truck left near. To leave a truck on the edge of a platform, by a station agent, standing six inches from the edge, was held negh- gence chargeable to the company, where a brakeman rid- ing on the steps of an engine came in contact with it and was injured.'*^ It is questionable whether such a conclusion would be reached in most of the states where the common law pre- vails. The station master woidd be a feUow-servant and in any event the negUgence, if any, would be that if a fellow-servant making improper use of a safe appUance. The same court held, however, in a more recent case, that the evidence was insufficient to charge a raOroad company with neghgence in leaving a truck so near the track that the brakeman who missed the open vestibide at the first end of a car, caught the rear end where the vestibule was closed, and in the attempt to open it, came in contact with the truck. The train pulled out inxmediately after the baggage was unloaded from the track, hence there was no opportimity to remove it, and the company could not anticipate that he would be in such perilous position at that time.'*' Wagon left near. Where a wagon was left close to the track during the noon hour by a person unloading coal, the raihoad com- pany not being chargeable with notice, neghgence on the part of the company did not appear. ^^* Rocks on bank of cut. The leaving of rocks taken from a cut, which had been loosened in blasting, in such a position as hkely to fall 351. Thompson v. Boston & M. 353. Baxter v. Minneapolis, St. R. Co., 153 Mass. 391, 26 N. E. P. & S. S. M. R. Co., 104 Minn. 1070. 230, 116 N. W. 474. 352. Koepsel v. Minneapolis, 354. Connors v. Elmira, C. & St. P. & S. S. M. R. Co., 100 Minn. N. R. Co., 92 Hun 339, 36 N. Y. 202, 110 N. W. 974. Supp. 926. § 141 Sapb Place to Woek. 323 at any time upon the track, was held to be such negligence as justified a recovery by an employee injured by reason of the derailment of a train caused by contact with a rock faUen upon the track. ^" § 141. Ice and snow. Dangers from snow banks are inseparable from the operation of railroads, where snow prevails. '" And a railway company is not bound to keep its grounds near its tracks free from ice and snow.'" It is, however, required to keep its tracks properly flanged and free from obstructions, such as ice and snow, which endanger the safety of those operating the road."* It must not permit a ridge of ice in a railroad yard about two inches higher than the rails to remain, between the rails ;'^' nor a temporary drain across the tracks to remain fiUed with snow even with the ties. '*" It was held, however, where a fireman was killed by the overturning of his engine, while pushing a snow plow, caused by ice formed between the rails, that the question of furnishing a reasonably safe plaxje for the employee to work was not involved, but rather the question whether the company was neghgent in the conduct of the work or removing snow from its tracks. The work having been done in the customary manner and the company not being 355. Bean v. Western N. C. R. T. R. Co., 52 Mich. 40, 17 N. W. Co., 107 N. C. 731, 12 S. E. 600. 232, 50 Am. Rep. 243. 356. Brown v. Chicago, R. I. & 358. McClamey v. Chicago, P. R. Co., 69 Iowa, 161, 28 N. W. M. & St. P. R. Co., 80 Wis. 277, 49 487; Piquegno v. Chicago & G. T. N. W. 963. See also Cregg v. R. Co., 52 Mich. 40, 17 N. W. 232, Chicago* W. M. R. Co., 91 50 Am. Rep. 243; Howland v. Mich. 624, 52 N. W. 62; Orttel v. Milwaukee, L. S. & W. R. Co., 54 Chicago, M. & St. P. R. Co., 89 Wis. 226, UN. W. 529; Morse v. Wis. 127, 61 N. W. 289. Miimeapolis & St. L. R. Co., 30 359. Rifley v. Minneapolis & Minn. 465, 16 N. W. 358; Bryant St. L. R. Co., 72 Minn. 469, 76 V. Burlington, C. R. & N. R. Co., N. W. 704. 66 Iowa, 305, 23 N. W. 678, 55 360. De Cair v. Manistee & Am. Rep. 275. G. R. Co., 133 Mich. 578, 95 N. W. 357. Piquegno v. Chicago & G. 726. 324 Masteb akd Seevant. § 142 chargeable with knowledge of the acoumulatioii of ice, it was not liable. '" The mere falling of snow or formation of ice upon rail- road tracks is not of itself evidence of negligence on the part of the company; but if by reason of the structures or improvements placed upon the yards or by reason of the method of caring for or maintaining such yards or by reason of pubUe travel across the same, such snow or ice accumulates in heaps or ridges in places where brakeman are required to go in performing their duties, thereby exposing them to danger of sKpping beneath the wheels of moving cars, and such obstructions are allowed to remata an unreasonable length of time, it cannot then be said, as matter of law, the company is not negUgent.'*^ Reasonable care does not require railroad companies to remove aU the snow from their yards, where cars are switching and trains made up. If they keep the surface of the snow practically level, and do not allow it to accumu- late above the level of the rails or in dangerous ridges or hummocks, or to form dangerous holes, they cannot be charged with negligence for not removing the snow or covering it with ashes or cinders.'^* § 142. Temporary tracks. The duty of the master to furnish a reasonably safe working place, does not extend to the condition of a tem- porary track from a quarry upon which to convey crushed rock, where changed about twice a week.'** It has been held, however, that the master failed in his duty of providing a safe place, in not providing a guard rail upon a tramway to prevent cars from jumping the track. A car feU from the tramway and injured a work- man below. '*^ 361. Neagle v. Syracuse, B. & 75 N. W. 15; Rifley v. Minneapolis N. Y. R. Co., 185 N. Y. 270, 77 N. & St. L. R. Co., 72 Minn. 469, 75 E. 1064, 25 L. R. A. (N. S.) 321. N. W. 704. 362. Santey v. Chicago, R. I. 364. Mowry v. Frazier & Fos- & P. R. Co., 118 Iowa, 39, 91 N. W. ter, 120 S. W. (Ky.) 289. 820. 365. Barber Asphalt Pav. Co. 363. Pay v. Chicago, St. P., v. Odasz, 29 C. C. A. 631, 85 Fed. M. & O. R. Co., 72 Minn. 192, 754. -^ 143 Safe Place to Woek. 325 § 143. Private tracks. Where a corporaticai maintains a railway as part of its lumber manufacturing business, the duty of the company in its construction and operation is that of ordinary care as to reasonable safety, considering the purpose for which it is to be used.'^* It was stated that although a logging road is not expected or required to be laid with the same care and security, nor to be operated with the same degree of pru- dence as is demanded in the construction and operation of tracks in use by common carriers, yet the master's duty requires that they should be so constructed and operated as to render it reasonably safe for those whose duties necessitate their going upon such road and performing service. '^^ It was held that the master was not neghgent in equipping his logging road with Ught or even worn rails, and cars of standard make, though the brakes may not come above the top of the car and must be set while the car is at rest; it not appearing that any of the defects rendered the road or its operation unsafe for the purpose for which it was iutended.'** Where a track was built by private persons for the purpose of shipping ice over the defendant's road, it was said if it was sufficient for the occasional and special use for which it was designed and used, though unfit for gen- eral use, it was aU the law required. "' The master, in handhng rock and slag through its build- ing, in cars running on tracks on an elevated platform, is not required to keep its tracks clear from small particles of rock and slag that may fall from the cars. It cannot be said he shoxild anticipate that they rendered the place a soiirce of danger. "" 366. Baxrow v. B. R. Lewis 369. Stetler v. Chicago & N. Lumber Co., 14 Idaho, 698, 95 Pao. W. R. Co., 46 Wis. 497, 1 N. W. 682. 112. 367. Lynn v. Antrim Lumber 370. Cook v. United States Co., 105 La. 451, 29 So. 874. Smelting Co., 34 Utah, 190, 97 368. Cavaness v. Morgan Lum- Pae. 28. ber Co., 50 Wash. 232, 96 Pao. 1084. 326 Masteb and Sebvant. § 144 § 144. Tracks owned by third person. A question whicli has given rise to considerable discus- sion and frequently presented to courts, is that of the habiUty of a company operating trains upon the tracks of another company, for injuries to its employees caused by the defective condition of such tracks. This question is quite fully considered in another chapter. It will be seen that the courts are not fully in accord. It is main- tained on the one hand that as the company operating a train has no control over the track, and hence cannot remedy defects that may exist, it is not Hable for injuries thus sustained. This was the doctrine expressed by a court where a railroad company had given a lumber company the privilege of running a logging train upon its tracks, which was derailed by reason of a defective bridge. It was held, however, that the raUroad company was liable in damages for such injury.''^ This is the test apphed in determining the relation of master and servant ; whether the master has control and direction over the servant when in the general employment and pay of another. On the other hand it is held that the master's duty is to exercise reasonable care to furnish a reasonably safe place, and that the master in the use of premises of another, adopts them as his own, applying the doctrine to some extent, of the master's duty in relation to foreign cars. Thus it was held that the mere fact that the servant of a raikoad company was injured by the de- fective track of a company other than that of his employer, but in use by his employer at the time, does not reheve the master from UabUity.^'^ It was held that an employee not shown to have knowledge that a track upon a wharf was a private siding, did not assume the risks of the condition of such track. 371. Hamilton v. Louisiana & Atl. 288; Doyle v. Toledo, S. & N. W. R. Co., 117 La. 243, 41 So. M. R. Co., 127 Mioh. 94, 86 N. W. 560, 6 L. R. A. (N. S.) 787. 624, 54 L. R. A. 461, 89 Am. St. 372. Smith V. Memphis & L. R. Rep. 456; Harding v. Railway Co., 18 Fed. 304; Story v. Concord Transfer Co., 80 Minn. 504, 83 & M. R. Co., 70 N. H. 364, 48 N. W. 395. §§ 145, 146 Safe Place to Woek. 327 In tlie absence of such, knowledge the company owed him the same duty as was owing him in respect to its own tracks. ^'^ VII. Trenches, Pits and Tunnels. § 145. In general. A distinction is properly made between the work of excavating and shoring a trench, and work in a trench after the trench itself has been prepared. With respect to the work of excavating a trench, it would seem most proper that the rule where the character of the work makes the place unsafe should ordinarily be appUed. That in respect to shoring and protecting the place that the nile of the master's duty to furnish sufficient of suitable material and competent workmen, is applicable, and with respect to work required in a trench already prepared, that the rule of the master's duty to exercise reasonable care to provide a reasonably safe place of work, should be applied. It cannot be said that these rules have in aU cases been applied. The second rule above given however, has been quite generally recognized in cases of excavation."* Thus it was held that, the master having furnished suitable materials, he is not liable for the failure of the foreman to use them.^^* § 146. Excavating and shoring. It was stated, where there was no evidence that the defendant failed to furnish sufficient of suitable material for the bracing of the sides of a trench: "The work was committed to the supervision of a skUfid and competent superintendent. It required for the pro- 373. Grand Trunk R. Co. v. 80 N. E. 1092, 19 L. R. A. (N. S.) Tennant, 14 C. C. A. 190, 66 Fed. 340; Bergquist v. Minneapolis, 42 922. Minn. 471, 44 N. W. 530; Zi^ler 374. Dube v. Lewiston, 83 Me. v. Day, 123 Mass. 152; Floyd v. 211, 22 Atl. 112; Cook v. New York Sugden, 134 Mass. 563. C. H. R. R. Co., 119 N. Y. 653, 375. Brown v. Peoples Gas 23 N. B. 1150; Citrone v. O'Rourke Light Co., 81 Vt. 477, 71 Atl. 204, Eng. Const. Co., 188 N. Y. 339, 22 L. R. A. (N. S.) 738. 328 Masteb and Servant. § 147 tection of the men, the frequent use of temporary struc- tures, the location and direction of which, as the digging progressed, was a part of the work, in which the super- intendent and the men under him were alike employed, and for the preparation of which, as in the use of the scaffold of the mason or carpenter, the master is not Uable, imless there is something to show that he assumed it as a duty independent of the servant's employment. The oc- casional presence of the defendant as the work went on, is not enough to charge liim with that duty.'" The same result was reached in the determination of another court, but such result was placed upon the ground that the laborer engaged in excavating the trench and those who were engaged in putting in the curbing as the work progressed, were fellow-servants.*" § 147. Furnishing material. It appearing therefor, in this connection, that the master's duty is that of furnishing sufficient suitable material and competent men for the work, the question involved is whether the master has performed his duty in this respect. It was held that a jury were warranted in finding that this duty had not been performed where the material necessary to make the trench safe was not furnished, though it appeared there was material some two miles away that the foreman had authority to use, as they might find that this was practically inaccessible on accoimt of the distance. That in this view of the facts the plaintiff's intestate was set at work in a place of dan- ger without the precautions being taken for his safety which the employer was bound to see taken. "^ In an action brought under the Massachusett's Employ- er's Liabihty Act (the master being hable for the acts or omissions of an employee whose principal duty is that of 376. Ziegler v. Day, 123 Mass. 378. Fitzsimmons v. Taunton, 152. See also Johnson v. Boston, 160 Mass. 223, 35 N. E. 549. See 118 Mass. 114. also Laporte v. Cook, 21 R. I. 158, 377. Bergqnist v. Minneapolis, 42 Atl. 519. 42 Minn. 471, 44 N. W. 530. § 148 Sapb Place to Wobk. 329 superintendence), where tlie negligence charged was that of a superintendent in not supporting the sides of a trench which caved in injuring an employee, and it was urged that the city was not liable upon the ground that the superintendent had no authority to provide materials for such purpose, it was said that this side of the case is too narrow. That the superintendent may be negligent in ordering the work commenced or continued when proper material for insuring the safety of the workmen engaged are not at hand, as well as in faiUng to use such as is at hand, and it was personal negUgence on the part of the particular superintendent to allow the work to go on before necessary materials were procured. That it was a question for the jury whether in the exercise of due care the superintendent could allow such a trench as the witnesses described to be opened in sandy soil without protecting the sides by planking."' § 148. Peculiar conditions. An employer is not hable for injuries sustained by his employee from the caving in of a bank beside which the employee is working, where such caving of the bank is due to the nature of the soU and is as apparent to the servant as to the employer.'^" The same rule as to the master's liability does not apply where there are peculiar dangers incident to the situation that are known or which ought to be known by the mas- ter in the exercise of ordinary care and as to which the servant is ignorant. It is the master's duty to exercise reasonable care to guard against such accidents as could be foreseen as Hable to occur, and if he had knowledge that there was a parallel sewer a few feet distant from the trench under construction, which naturally would render the work more dangerous, or any other cause that would have a tendency to cause the caving of the sides of the 379. Connolly v. Waltham, 156 94 N. W. 1124. And the same Mass. 368, 31 N. B. 302. rule applies where the employee 380. McQueeney v. Chicago, is working ia a trench. M. & St. P. R. Co., 120 Iowa, 522, 330 Masteb and Sebvant. § 149 trench, he would be liable to his servant for injuries re- ceived by the caving of the trench at which he was working, if caused by such condition. Where the master had failed to warn the servant, but in the absence of proof of the knowledge of the master of such conditions, either actual or constructive, he would not be hable.'" Where there were dangers connected with the excavating of a deep trench (31 feet), one side of which for a distance of twenty feet ran along a chimney stack foundation twenty feet deep, and cross cuts were made which were not shored up in any way, and an employee, ignorant of the conditions, was injured by the earth caving in upon him, and the earth had become insecure in being satur- ated with percolating water, to the knowledge of the defendants, it was held a question for the jury whether the defendants had provided the plaintiff with a reasonably safe place, in which to perform his work, whether the plain- tiff was guilty of contributory neghgence, and whether he assimied whatever danger there was in doing the work.^'* §149. Latent dangers. It would seem that where there are hidden dangers incident to the work of which the servant is not aware, which are known to one in charge of the work, that at least he shoidd be informed and that the failure of such employee in charge to so inform the servant should be chargeable to the master, as such duty of warning gener- ally is personal to the master. It was, however, held, applying the rule that the duty of a master to use rea- sonable care to furnish a reasonably safe place for its employees to work, does not extend in the construction of a sewer to keeping the same safe at every place and at every moment of time in the progress of the work, that if such place becomes imsafe through the oversight of a foreman, who is not a vice principal, to inform a workman that a djmanaite cartridge has failed to explode, the master is not hable for a resulting injury. ^^' 381. Del Sejnore v. Hallinan, 584, 59 N. E. 311, 53 L. R. A. 877. 153 N. Y. 274, 47 N. E. 308. 383. City of Minneapolis v. 382 Finn v. Cassidy, 165 N. Y. Lundin, 7 C. C. A. 344, 58 Fed. 525. § 150 Safe Place to Work. 331 § 150. Where work is required in a trench prepared. As stated, the rule is different from that stated in respect to preparing a trench, where work is required in a trench prepared. The prepared ditch becomes a place of work, a duty personal to the master to exercise reasonable care to see that it is not only reasonably safe at the outset, but is maintained in such condition.'** Thus where an employee had been ordered to clean out certain underground water pipes, and a trench had been opened for the purpose of furnishing him a proper place and opportunity to do the work by the defendant's section men and other laborers, and while he was so en- gaged in disconnecting such pipes, the earth caved in upon him, causing his death, it was held the defendant was liable upon the ground of failure of duty to furnish him a reasonably safe place to work.'*^ And where it was alleged that the defendants, who were the selectmen of a town, were neghgent in faihng to provide suitable means of support for the sides of a trench, in which they had employed the plaintiff to lay pipe for the purpose of building a pubhc sewer, it was held they were bound when they hired him to work in a particular place, to see that it was reasonably safe, and that mate- rials were fmnushed to make it so. '^^ The neglect of the foreman in charge of the work of digging a trench and laying water pipes therein, to shore the sides of the trench, the master having furnished suit- able and sufficient material for such purpose, does not have the effect to reheve the master from UabUity for injury to an employee engaged in laying pipe therein, from such cause, although such neglect on the part of the foreman to use such material would not be chargeable 384. Baird v. Reilly, 35 C. C. 385. Kranz v. Long Island R. A. 78, 92 Fed. 884; Kranz v. Long Co., 123 N. Y. 1, 25 N. E. 206, 20 Island R. Co., 123 N. Y. 1, 25 N. E. Am. St. Rep. 716. 206, 20 Am. St. Rep. 716; HUgar 386. Breen v. Field, 157 Mass. V. City of Walla WaUa, 50 Wash. 277, 31 N. E. 1075. 470, 97 Pac. 498, 19 L. R. A. (N. 8.) 367. 332 Mastee and Seevant. ^ 150 to the master for injuries to an employee engaged in excavating the trench.'" Sufficiency of material furnished. The evidence was sufficient to establish that a trench which had been dug to the depth of seven feet and braced with a single plank held in place on each side of the trench by cross pieces, was dangerous and hable to cave in, and that such condition could have been discovered by the master in the exercise of ordinary care.'** Where the employer, while his employees were engegsd in digging a trench, supphed for shoring boards only eight feet in length and only seven eighths of an inch in thickness and they gave way under the pressure of the dirt, it was held that this fact was sufficient to sustain a verdict of the employer's neghgence which was the proximate cause of the injury to the employee working in the trench.'*' An employee in charge of placing sheet piUng in con- struction of a sewer, which piling was put in under his direction, whose death was caused by such piling giving way, was held, by his agreement to put in the pihng, to the use of due diligence, and thereby transferred to himseK the duty in that respect resting on the defendant. ''" Covering. Where the master has covered his trench, the rule of his duty in respect to place applies as weU as to other places in respect to safety; and where such covering was insuf- ficient to sustain the weight of a heavy wheel, it was held a question for the jury whether there was a failure of duty on the part of the master. '" 387. Baird v. ReiUy, 35 C. C. A. 390. Salzwedel v. City of Adri- 78, 92 Fed. 884. an, 145 Mich. 280, 108 N. W. 701. 388. McCoy v. Northern Heat. 391. W. C. De Pauw Co. v. & Elec. Co., 104 Minn. 234, 116 Stubblefleld, 132 Ind. 182, 31 N. E. N. W. 488. 796. 389. Kurstelska t. Jackson, 89 Minn. 95, 93 N. W. 1054. § 151 Safe Place to Woek, 333 Guarding. It is the duty of the master to guard or protect dan- gerous openings, where so located that, in the exercise of reasonable care, it ought reasonably to be anticipated that injury might result, and this apphes to ditches and trenches as well as other openings. Thus, where an employee using a customary path in going to his work, was injured by falling into a ditch of which he had no knowl- edge, before it was light, it was held to warrant a finding that the master was negligent in not displaying danger lights or use other means of warning. ^^^ In another court it was stated to be an act of neghgence to leave an open ditch unguarded where employees might pass, in going to or from their work. Whether the defend- ant should have anticipated that some of the employees including plaintiff, might, in the dark, pass along the place and faU into it, was a question for the jury.^^' § 151. Pits. The removal of earth from gravel beds and the hke ordinarily is governed by the rule which exempts the master from Uabihty where conditions are constantly changing, and the work itself makes the place of work unsafe. To some extent this subject has been considered xmder that head. The question of the liability of the mas- ter more generally turns upon the question of the mas- ter's duty to instruct and warn an employee of dangers incident to that work, and the further question of the assumption of the risk by the employee, which questions are, with respect to such cases, treated under those heads. The question of feUow-servant is often also involved. In some cases, however, it appears that the rule of the master's duty in respect to fimiishing a safe place, was appUed. Thus it was held a question for the jury whether the master was negligent when the support at the base of a high clay bank, which had consisted of a former slide of a large body of clay, was removed, in not anticipating 392. Noms v. Cudahy Packing 393. Hebert v. Interstate Iron Co., 124 Iowa, 748, 100 N. W. 853. Co., 94 Minn. 257, 102 N. W. 451. 334 Mastee and Seevant. § 152 a further slide, and prepare in some way to avoid it. A laborer was killed by the subsequent sliding of the bank while working at or near its base.''^ Agaiu, an employee in a gravel pit was injured by the bank of earth falling upon him. The bank on the day previous to his going to work, had been undermined, two or three feet, and wedges had been driven the night before on the top of the bank, to cause the dirt to fall, of which the employee had no knowledge, and which he had no opportunity to observe. Rain had fallen during the night. No notice was given to such employee of the dan- gerous condition of the bank. It was held negligence chargeable to the master to leave the bank in such dan- gerous condition, that the doctrine of fellow-servant was not applicable nor that of assumption of risk.'" Where an employee was injured by the caving in of a bank of earth and it appeared other employees had attempted to break it down and failed, the question was said to be, not whether the adhesive force was weakened so that the bank fell and injured the plaintiff, nor would such necessarily in law constitute a want of ordinary care, but whether a person of ordinary care would have used the same or hke means to break down the bank, and after having done so would have continued to require an employee to work under it.'" § 152. Tunnels. The rule requiring the master to furnish a safe place to work, applies to the construction of a permanent tunnel in a mountain, and in so far as the work is completed the master's duty is to make the tunnel reasonably safe from the fall of overhanging rock. '^' The place of work in a tunnel was not reasonably safe by reason of the shoring not extending suf&ciently near the 394. Reilly v. Troy Brick Co. 396. Deppe v. Chicago, R. I. 184 N. Y. 399. 77 N. E. 385. & P. R. Co., 36 Iowa, 52. 395. Thomas v. Ross, 21 C. C. 397. Hanley v. California A. 444, 75 Fed. 552. Bridge & Const. Co., 127 CaL 232, 59 Pac. 577, 47 L. R. A. 597. § 153 Sape Place to Woek. 335 face of the timnel and the crutch, nearest the face of the tunnel not being sufficiently near the end of the planks, where an employee was injured by clay faUing upon him. ''* A tunnel so constructed that at the center of the arch on top is but eighteen feet and at a short distance from the entrance is less than seventeen feet from the track, was not properly or safely constructed. '^' The employer's duty in respect to furnishing a safe place for a miner engaged in running a tunnel, drilUng and blasting from the face of the mine to work, was said to be to use proper precautions to prevent the falling of the roof of that part of the tunnel which has been made, and to keep the floor free from debris so as not to obstruct the escape of the miner in case of accident. ^°'' VIII. Notice or Knowledge of Defects and Results Thereof. § 153. In general. Whether a master is chargeable with knowledge of a defective condition of his premises ordinarily depends upon the facts and circumstances of the particular case. There is no dispute as to the rule. Where the defect is inherent in the premises as provided in the first instance, and obvious to a person of ordinary prudence, notice may be presumed, under the general rule that the master wiU be presumed to know that which in the exercise of ordi- nary care he would have discovered. Whether he is charge- able with knowledge of latent defects depends upon whether they would have been discovered by proper supervision and inspection, where such duty is imposed upon him. The master's duty in respect to the condition of his premises, is, as has been stated, the exercise of reasonable care. He is not a guarantor of their safety, and 398. Ross V. Shanley, 185 IE. 400. KeUey v. Fourth of July 390, 56 N. E. 1105. Mining Co., 16 Mont. 484, 41 Pac, 399. Mexican Cent. R. Co. v. 273. Eckman, 42 C. C. A. 344, 102 Fed. 274. 336 Masteb and Servant. §153 hence it follows that if he has no knowledge, either actual or constructive, of their unsafe condition, he is not at fault. ^" 401. Thus where the lessee of premises employed a -workman to clean an oven recently rebuilt by the lessor, and such workman, while engaged in the oven in the act of cleaning it, was injured by the oven falling on him, it was held, in an action against his employers, that no recovery could be had un- less it was made to appear that the latter had knowledge of the danger or were neghgent in not obtaining it; and as there was no proof that they knew or had reason to sus- pect the oven was defectively constructed, the action could not be sustained simply upon the ground that the oven proved defective. Nason v. West, 78 Me. 253, 3 Atl. 911. It was held an em- ployer may assume, and without inspection, that the lessor of the building in which he occupies rooms as a tenant (the lessor fur- nishing everything in the rooms except chairs and tools with which the employees .of the tenant work), in the absence of any indications to the contrary, that a paU attached to an overhead pipe by a plumber employed by the lessor was prop- erly and safely fastened, although it had been hanging there for three or four weeks. Kirk v. Sturdy, 187 Mass. 87, 72 N. E. 349. The mere fact that a superintendent ordered a workman to drill a hole for blasting where an unexploded charge was already in, in the absence of evi- dence that the superintendent could by proper dihgenoe have known the previous charge remained unex- ploded, is not sufBcient to sustain a claim of negligence. Houston v. Culver, 88 Ga. 34, 13 S. E. 953. The mere failure to discover, upon an examination by two competent persons, that a blast had not ex- ploded, was held simply a mistake, not negligence. Harris v. Balfour Quarry Co., 131 N. C. 563, 42 S. E. 973. Where the operator of a quarry, having operated it for twenty-five years, had no knowl- edge of an unexploded blast and none had been found before, and one of his positive requirements was to leave no unexploded blasts, the hole in question having been charged three times before, the last time about two weeks before the accident and was then entirely blown out, such operator was not guilty of negligence, and a servant injured by such unexploded charge could not recover. Lanza v. Le- Grand Quarry Co., 115 Iowa, 299, 88 N. W. 805. Where a brakeman was injured by the derailing of an engine caused by a rock on the track, and it ap- peared the road was at that point laid through a rocky and mountain- ous region, and there was no direct proof as to the location of the rock before it fell or as to the place from which it fell, and no specific act or omission that might be negligence was shown, it was held that it was error to refuse a nonsuit. Denver & R. G. R. Co. V. McComas, 7 Colo. App. 121, 42 Pac. 676. Notice to a railroad company that cars passing over a certain place in its §154 Sate Place to Work. 337 The rules already laid down in the chapter on safe machinery and appliances as to knowledge of defects are also, for the most part, applicable to knowledge as to unsafe place to work, and should be considered in con- nection herewith. § 154. Length of time. That notice may be presumed from the length of time the defect has existed, has been stated in previous pages, and cases cited, with respect to the condition of appliances and also with respect to defects created by third persons or fellow-servants. It will suffice to state that length of time a defect has existed may be sufficient to charge the master with knowledge of defects in his premises however or by whom they may have been created. What tracks had a iiunping or jarring motion, would not tend to show notice to it of a latent internal seam in a rail at that place, which subse- quently caused the rail to spht and break, there being no evidence that the motion of the cars was caused by or was suggestive of the latent defect in the rail. James v. Northern Pacific R. Co., 46 Minn. 168, 48 N. W. 783. To charge the owner of a mine with Uability for the death of an employee caused by rock faUing from the roof, it must appear that the owner had previous knowledge of the defective condi- tion of the roof or was negligent in not discovering it. Cherokee & P. C. & M. Co. V. Britton, 3 Kan. App. 292, 45 Pao. 100. And also such knowledge must appear with respect to the oily condition of a floor upon which an employee slipped and fell, where recovery is sought against the master. Kli- neintie v. Nashua Mfg. Co., 74 N. H. 276, 67 Atl. 573. Where, how- ever, the defendant's foreman had a 1 M. * s.— 22 short time before the falling of a structure, examined it, and the top of one of the posts supporting it had previously been so destroyed by fire that the cap no longer held it in place, and he must have seen the damaged condition of the post, which gave way under pressure of a large piece of coal encrusted with ice being loosened by a fellow-serv- ant, faUing against it, it was held the jury were warranted in finding that the defendant, through its proper representative, knew before the accident that plaintiff's working place imder the structure was un- safe. Baumann v. C. Beiss Coal Co., 118 Wis. 330, 95 N. W. 139. Where an employee engaged in the work of repairing a tunnel was in- jured, caused by the insufficiency of the braces, and the place was known to be thus insecure to the defend- ant's foreman, it was held the serv- ant was entitled to recover. LouisviUe, N. A. & C. R. Co. v. Graham, 124 Ind. 89, 24 N. E. 668. 338 Masteb Ain) Sebvant. §154 time is sufficient depends upon tte facts of each particular case. As also has been stated with reference to appliances, the question of the lapse of a reasonable time to remedy the defect after notice, actual or constructive, must be considered. The question of notice arising from the length of time a defect has existed most frequently is for determination by a jury, but the defect may have existed for such a length of time that the court is permitted to determine it. As stated by a court with reference to the loose condition of a spht rail of a discontinued switch which had been spiked, where there was some evidence it had been in such condition for some time, "such defects, when they do happen, do not at once fasten a Uabihty on the railroad company. It is only after they have existed long enough for diligent supervision to discover and remedy them that Uability attaches. If they exist and are sufficiently patent to be discovered by careful inspection, the longer they are permitted to remain the greater the negligence." ^"^ 402. Kansas City, M. & B. R. Co. V. Webb, 97 Ala. 157, 11 So. 888. Where an employee was in- jured by lumber from a pile falling upon him, it was said that if the lumber was safely piled in the first instance, but it subsequently be- came unsafe by the removal of lumber from the pUe, it must appear that the defendant, through some responsible oflQcer or agent, had actual notice of the defect, or that it had existed for so long a time that the defendant should have dis- covered it in the exercise of reason- able diligence. Baldwin v. St. Louis, K. & N. W. R. Co., 68 Iowa, 37, 25 N. W. 918. It has been held that a master was chargeable with knowledge of a pUe of scrap iron falling where its dangerous condi- tion had remained for three days. Baltimore & O. S. W. R. Co. v. Spaulding, 21 Ind. App. 323, 62 N. B. 410. And also that evidence showing a depression in the track had existed for three days and was known to the section boss, was suf- ficient to charge knowledge thereof upon the company, and to sustain a verdict on that ground in favor of an engineer who was injured by the derailment of his engine claimed to have been caused by such defect in the track. Worden v. Humeston & S. R. Co., 76 Iowa, 310, 41 N. W. 26. Where, however, a hole in the floor, which had been covered by a patch, became exposed on the morning of the accident, it was held that negligence could not be charged to the master for faihng to discover and remedy it, no pre- sumption of negligence arising from failure to Inspect during the short period the hole was exposed § 154 Sate Place to Woek. 339 Knowledge of impending danger. The question is often presented whether the conditions actually present and known to the master or one who stands in his place, are sufficient to charge him with knowl- edge that there is impending danger so as to charge him with a neglect of duty in not anticipating that accident and injury may flow unless precautions are taken to avoid them. It is a difficult question at best, and, unless in ex- treme cases, or in cases where there can be only one rea- sonable inference, a jury ought not to be permitted to de- termine it. The human mind is so constituted that the same conditions do not impress aU minds ahke. What may impress the mind of one individual as to apparent danger may not have that effect upon the mind of another. Much also depends upon the knowledge, skiU and expe- rience of the individual. Jurors have not been present and have no personal knowledge of the conditions as they existed. They merely hear it as narrated by those who are present. An accident often discloses what might have been done by way of precaution to have avoided the accident, when such means or the necessity for their use would not have been suggested prior thereto. The question arises most frequently where the threatening con- ditions arise suddenly, as for instance, where there has been a heavy rain faU, and a sudden rising of water in streams, threatening structures over them, or cases of land slides and the hke.*"' AomeBoxCo.v. Gregory, 119 Term. quent patrol of a bridge, where 537, 105 S. W. 350. Where barriers water suddenly rising in a storm had been removed from a bridge caused the rails laid upon a bridge across a trench for some days, it was or its approach to be loosened by held that the master had ample time the action of ice, whereby an engi- to discover the defect and to repair neer was killed, and it appeared it, and hence was liable in damages that a section boss had examined to an employee injured by reason the bridge a few hours before. That of such defect. Bennett v. Standard he should have been impressed Plate Glass Co., 158 Pa. St. 120, from what he observed that there 27 AtL 874. might be danger. Scagel v. Chi- 403. It waa held that a railroad eago, M. & St. P. R. Co., 83 Iowa, company was chargeable with neg- 380, 49 N. W. 990. It did not ap- ligeuee in not making a more fre- pear that at the time the section 340 Masteb and Servant. §155 § 155. Time to remedy defects. Where the master discovers, or should have known, that the place to work is unsafe, it seems that he can not be held Uable imless a reasonable time has elapsed, before the boss examined the bridge, the eon- ditions were the same as at the time of the accident, but it was held he should have anticipated that such or similar effect might ensue from the observation he made. A rail- road embankment which had stood for thirty years without any diffi- culty occurring at that point, gave way after a sudden and unprece- dented rain fall. The road master had sent men to a point two miles distant where trouble might be anticipated. The rain fall occurred within two hours prior to the acci- dent to a train, by which the plaintiff, an employee, was killed. The defendant had no actual no- tice of the defect thus occasioned. It was held that it was a question of fact for the jury to determine whether the company was charge- able with negligence in not knowing of or discovering the defect in time to have warned the plaintiff. Cen- tral Railroad & Banking Co. v. Kent, 84 Ga. 351, 10 S. B. 965. In an action against a railroad com- pany for the negligent killing of an engineer, occasioned by the over- turning of his engine through the sinking of the track at a fiU, evi- dence that some weeks previous, the track having simk a few inches, had been repaired, and was, in the opinion of exi)erts, the best part of the road; that on the morning of the accident the track was twice in- spected by the track walker; that two heavy freight trains had passed over it in safety; and that there was a very heavy rain faJl at that place which made the earth soft and yielding, it was held there was not sufQcient to show any negli- gence on the part of the company. That to hold the company Uable would be to hold it responsible for the act of God. Binns v. Richmond & D. R. Co., 88 Va. 891, 14 S. E. 701. There may be indications which caU upon the master to in- vestigate and ascertain the condi- tion of his premises, as where a month before an accident there had been a heavy fall of rock from a place in a mine, not propped or timbered and small pieces had fallen occasionally thereafter. Such conditions were held sufficient to justify a finding that the defect had existed for such a length of time that the owner had constructive notice thereof. Cushman v. Car- bondale Fuel Co., 116 Iowa, 618, 88 N. W. 817. Where, however, an employee in the yard of a brick manufacturing company, was in- jured by the fall of a loose brick from the top of a chimney, which had recently been injured by fire, no bricks being visible to any one at the top of the chimney and no one knowing that any were loose or in danger of faUing, it was held he had no cause of action against his em- ployer; that he had all the knowl- edge of the danger any one pos- sessed. Pilucki V. Detroit Steel & Spring Works, 117 Mich. Ill, 75 N. W. 295. It was held a question for the jury whether an employer ought to have known of the defect- ive condition of a furnace, if de- nso Safe Place to Woek. 341 accident, to remedy the defect, provided of course that any duty to warn servants of the danger has been com- phed with.«* fective from tlie length of time in use and from prior repairs. A break out occurred and metal came through and in contact ■with water exploded. Illinois Steel Co. V. Saylor, 226 IE. 283, 80 N. E. 783. It would seem, in one case at least, that the master was held chargeable with knowledge where the evidence did not disclose by whom the alleged defect was caused, nor when caused. An employee in descending a car was caught be- tween a board projecting from the top of another ear on an adjacent track. It seems to have been held that the master was chargeable with knowledge of the board being there. It may be for aught that ap- peared that it was placed there but a few moments before. It might have been there placed by a trespasser. Campbell v. Railway Transfer Co., 95 Minn. 375, 104 N. W. 647. In another case, the fact that a rock fell from a place where the operator had been blast- ing injiuing one of the employees, together with evidence that a prudent examination would have disclosed the defect and danger, was held sufficient prima facie to establish negligence. Perry v. Rogers, 91 Hun 243, 36 N. T. Supp. 208. If the circumstances were such as to make it the duty of the master to make an examination, then the liability of the master could not well be questioned. 404. See Abbott v. Marion Min. Co., 112 Mo. App. 550, 87 S. W. 110; Hurst v. Kansas City, P. & G. R. Co., 163 Mo. 309, 63 S. W. 695, 85 Am. St. Rep. 539; Alabaster Co. v Lonergan, 90 lU. App. 353. Contra, see Franck V. American Tartar Co., 91 App. Div. 571, 87 N. Y. Supp. 219. Under the Alabama Code, section 2590, an employer must have a reasonable time to remedy a defect after discovery, and a jury should be instructed as to this point where it arises in the case. United States Rolling Stock Co. v. Weir, 96 Ala. 396, 11 So. 436. Where an employee about defendant's round house was injured by the falling of a long heavy door upon hdm, caused by the attachments which held it and by means of which it was moved becoming defective and out of re- pair, and it appeared that such defective condition of such attach- ment was known to the defendant's master mechanic, who was in charge and who had authority in the premises to hire and discharge hands, twenty-four hours prior to the injury to the plaintiff, it was held that whether a reasonable time after such knowledge by such mas- ter mechanic of the defective con- dition of the attachment had inter- vened prior to the accident to cause the defect to be remedied, was a question for the court, and it was not error on the part of the trial court to find that twenty-four hours was such reasonable time. It was further held that knowledge on the part of such master mechanic was chargeable to the master, upon the ground that such agency and power which he possessed consti- tuted him a vice principal. Mis- 342 Master and Sebvant. §156 § 156. Danger not reasonably anticipated. This particular element in the law relating to the gen- eral subject is considered in a subsequent chapter in its application to appUances. The doctrine therein stated and the reasoning as well, applies with equal force to dangers incident to the condition of the place provided by the master upon which the servant is to perform his work. It is fundamental, that negUgence is not the proximate cause of an accident unless under all the circumstances the accident might have been reasonably foreseen by a man of ordinary inteUigence and prudence. Such as to suggest itself to such a person. It is not enough to prove that the accident is the natural consequence of the negli- gence. It must also have been the probable conse- quence. *"* In addition to the illustrations given in the former chapter showing the appUcation of the rule, the following set forth in the notes below having special reference to premises are apt.*°^ souri Pac. R. Co. v. Sasse, 22 S. W. (Tex. Civ. App.) 187. This ques- tion is further considered in the chapter on safe machinery and appliances. 405. Nelson v. Allen Paper Car Wheel Co., 29 Fed. 840; Ford v. Tremont Lumber Co., 123 La. 742, 49 So. 492, 22 L. R. A. (N. S.) 917, 131 Am. St. Rep. 370. 406. Thus a concern stored in Its vaults celluloid checks which had been used as money but called in. A fire having occurred in the vault they, from such cause, ex- ploded injuring an employee. It ■was held that the employer could not reasonably have anticipated such an accident or an accident from such cause, and hence was not liable in damages to his employee. Ford V. Tremont Lumber Co., 123 La. 742, 49 So. 492, 22 L. R. A. QSr. S.) 917, 131 Am. St. Rep. 370. It was held that a worn place in a runway about eight inches long, one and one-fourth inches wide and one-fourth to one-half inches in depth in its deepest part, was not such a defect as the master would anticipate the possibility of a de- flection of a barrow loaded with coal, from such cause. The wheel of a barrow thus loaded deflected and swerved over the side of a runway, falling upon and injuring an employee. Landiigan v. Taylor- Goodwin Co., 197 Mass. 582, 84 N. B. 314. Where a plank used to make an easy ride over a sill, had become so worn as to leave a jolt of half an inch rise over which the wheels of a truck had to pass, it was held that it could not be said there was negligence in leaving such a slight obstruction. Nelson v, Allen Paper Car Wheel Co., 29 Fed. 840. Saj-e Appliances. 343 CHAPTER III. SAFE APPLIANCES. I. In genekal, §§ 157-161. II. Character and extent of dutt, §§ 162-177. III. Character or kind as question for jury, § 178. IV. Safeguards and precautions, §§ 179-193. V. Improper use of appliances, §§ 194-195. VI. Servants selecting unfit appliances, § 196. VII. Staging and scaffolds, §§ 197-221. VIII. Defects and repairs. A. In general, §§ 222-224. B. Statutory provision and common law rule in different states, §§ 225-240. IX. Inspection. A. Existence op duty, §§ 241-258. B. Sufficiency, §§ 259-266. C. Inspection of foreign cars, §§ 267-278. D. Proximate cause, § 279. X. Knowledge or notice of master, §§ 280-291. I. IN GENERAL. Seo. Sec. 167. Rule stated. (e) Lodging fumisted serv- 158. What are machinery and ap- ant. plianees. (f ) Logging road. Distinction between mate- 160. Ordinary tools. rial and appliances. Exemption based on ground Machinery defined. of no superiority of knowl- Arrangement and parts of edge on part of master. machinery. 161. Illustrations relating to com- ISSa.Statutory provisions. mon tools. 159. Enumeration of particular ap- Blocks. plianees and machinery. Bucket. (a) Car stakes. Chains. (b) Coupling pin. Crow bar. (c) Hand car. Hammer. (d) Horses and mules. Harness. 344 Mastee and Servant. §§ 157, 158 Seo. See. Hook. Ships' rigging. Ladders. Skid. Lantern and globe. Sling. Maul. Steam. Platform. Steel bar. Pole or stick used as a tem- Steel chisel. porary axle. Steel implement. Push pole. Steel pin. Ropes. Truck. Screen; Turn table and switches. Seat. Wagon. Set or snap. Watch box. Sewing machine belt. Wrench. § 157. Ride stated. It is tlie duty of the master to use reasonable care and prudence in providing servants with, machinery and appliances reasonably safe and suitable for their use, and he is hable for injuries resulting from any defect in the machinery or appliances which was, or ought to have been, known to him, and was not known to the servant. § 158. "What are machinery and appliances. The term "appliances" as used in the determination of the question of the master's duty to his servant, is very comprehensive. It includes machinery, apparatus and premises as weU as the servants employed to do the work.^ Distinction between material and appliances. There is a wide distinction between material and appliances. The term "appliance" refers to the machinery and aU the instruments used in operating it. Material includes everything of which anything is made; "the substance of matter out of which anything is made or may be made." It is not part of the master's duty to furnish material upon which machinery may operate. 1. Johnson v. Ashland Water Charleston & W. C. Ry. Co., 61 S. Co., 71 Wis. 553, 37 N. W. 823, C. 468, 39 S. E. 715. 5 Am. St. Rep. 243; Bodie v. § 158a Sate Appliances. 345 He, however, may furnisli this material, in -whieh case he is only bound to observe the rule "Sic utere tuo ut non aHen- um laedas" or to exercise reasonable care in so doing. ^ Machinery defined. As used in the Massachusetts statute, the word "ma- chinery" includes such machinery and mechanical devices as are in use, and such additions thereto or appurte- nances thereof, as are found to be used in connection there- with or as incidental to the use thereof, and not to have any broader significance. It was accordingly held that a harness supplied for use by an employer was not a part of the employer's "machinery."^ Arrangement and parts of machinery. The arrangement of machinery was held to be included in the term appliance, and where a machine was so improperly arranged that the belt was likely to move, when the machine was at rest, from the loose pulley to a fixed one, and thereby cause the machine to start, there was a failure of duty on the part of the master. * The term includes aU parts of a machine. If some of its parts, by reason of its construction, require frequent replacement, such parts when adjusted in the machine, become as much a part of it as if included in its original construction, and a defect in one of such parts is a defect in the machine. This rule was applied to a defective punch in a machine.^ § lS8a. Statutory provision. There are many statutory enactments in regard to machinery and appKances. First of aU are those relating to "ways, works, and machinery," found in the Employer's 2. Gallman v. Union Hardwood Mooney v. Connecticut River Lum- Mfg. Co., 65 S. C. 192, 43 S. E. 524. ber Co., 154 Mass. 407, 28 N. E. 3. Murphy v. O'Neil, 204 Mass. 352. 42, 90 N. E. 406, 26 L. R. A. (N. 5. Toy v. United States Car- S.) 146. tridge Co., 159 Mass. 313, 34 N. B. 4. Donahue v. Drown, 154 461. Mass. 21, 27 N. E. 675. See also 346 Masteb and Sebvant. ^ 159 Liability Acts of several states and which are, to a large extent at least, merely a reiteration of common law rules. While such statutes do not apply entirely to re- pairs, their chief importance is in connection therewith, and they are treated under that subhead.' So there are statutory provisions relating to scaffolds and the Uke,^ appliances in mines,* inspection,' and safe- guarding machinery,^" which will be treated of hereafter. § 159. Enumeration of particular appliances and ma- chinery. (a) Car stakes. Whether car stakes are necessary appliances forming a part of the car, there is some diversity of opinion. It was held that temporary stakes put on a flat car by a shipper of lumber, to whom the car had been furnished by a railroad company, were the necessary appliances forming part of the car, and where such as were used were defective and insufficient and by reason thereof injury was caused to an employee of such company; it was also held that it was the duty of the company to have exer- cised proper care in knowing that smtable and proper stakes were used; that this duty was not excused by the exercise of a custom delegating it to shippers. ^^ The contrary doctrine was held, in effect, that the loading of cars and the necessary binding or otherwise seeming the articles transported, including the selection of stakes from a large and suitable quantity fm-nished, per- tain to the ordinary use of the car within the scope of the servant's employment, and not a duty personal to themaster.^^ 6. See infra, § 226 et seq. See also Pennsylvania R. Co. v. 7. See infra, §§ 220, 221. La Rue, 27 C. C. A. 363, 81 Fed. 8. See infra, this chapter. 148; Port Blakely Mill Co. v. 9. See infra, §§ 253, 265. Garrett, 38 C. C. A. 342, 97 Fed. 10. See infra, § 193. 637. 11. Bushby v. New York, L. 12. Rounds v. Carter, 94 Me. E. & W. R. Co., 107 N. Y. 374, 14 535, 48 Atl. 175. N. E. 407, 1 Am. St. Rep. 844. § 159 Safe Appliances. 347 A brakeman was injured by the breaMng of a defective stake, used to hold a load of ties upon a platform car. The evidence showed merely that his employer supplied lumber enough to be sawed into stakes and men enough to prepare them, and that the defective stake was among those so prepared. It was said: "The use of the stake as a means of facilitating the passage of a brakeman from car to car of the train made it the duty of the defendant to use due care to see that it was suitable for that purpose. The case is one of the furnishing of an implement never fit for use, and evidently unfit. Such a stake could not, without neghgence, have been placed where stakes were kept, to be used for the purpose to which this was put. The questions of selection by a servant of an unfit imple- ment from a mass furnished by the master, and of the personal duty of the master in respect to equipping the cars, are not material. The evidence falls short of showing a sufficient supply of sotmd and suitable stakes. It shows only a supply of lumber for the purpose of making stakes. That the stake was among those so prepared would justify a finding that it was there through the negligence of the men whose duty it was to prepare them, and for that negligence, at least, the defendant was answerable."" (b) Coupling pin. The master's personal duty was held to extend to and include an ordinary coupling pin.^* (c) Hand car. While it has been directly held that a hand ear was a simple piece of machinery of which an employee using the same had equal means of knowledge of its condition as the master,^* yet quite generally it has been considered as an appliance within the rule of the master's duty. 13. Mclntyre v. Boston & M. are collected uader the head of R. Co., 163 Mass. 189, 39 N. E. ."Servant selecting unfit appli- 1012. anoes." 14. San Antonia & A. P. R. Co. 15. Burlington & C. R. Co. v. V. Hahl, 83 S. W. (Tex. Civ. App.) Liehe, 17 Colo. 280, 29 Pao. 175. 27. The oases respecting couplings 348 Master and Servant. § 160 (d) Horses and mules. The term appliance also applies to horses furnished the servant for use, and where the master is chargeable with knowledge of the vicious character of such animals and injury results to a servant, the master, in the absence of circumstances excusing his fault, is ordinarily hable." It was said there is no distinction between directing the use of a dangerous miile and directing the use of a dan- gerous mechanical apphance." (e) Lodging furnished servant. It also was apphed to lodging furnished a servant where the latter was exposed to cold and was thereby rendered siok.^' (f) Logging road. The duty of the master in respect to its appliances and premises as to the construction and maintenance of a logging road, is to so construct and operate it as to render it reasonably safe to its employees.^' § 160. Ordinary tools. The question as to how far, if at all, the duty of the master extends to furnishing and inspecting ordinary tools, such as hammers, ladders, etc., is the subject of considerable conflict in the decisions, and reference should also be made to the subdivision on inspection. ^^ 16. George H. Hammond Co. v. booker Ice Co. v. Fimi, 25 C. C. A. Johnson, 38 Neb. 244, 56 N. W. 579, 80 Fed. 483. 967; Martin V. Wrought Iron Range 17. Manufaotiu-er's Fuel Co. v. Co., 4 Tex. Civ. App. 185, 23 S. W. White, 228 lU. 187, 81 N. E. 841; 387; Miller v. KeUey Coal Co., 239 Collins v. Harrison, 25 R. I. 489, 56 111. 626, 88 N. E. 196, 130 Am. St. Atl. 678, 64 L. R. A. 156. Rep. 245; Fleming v. Covington, 18. Clifford v. Denver, S. P. 102 Minn. 403, 113 N. W.1016; & P. R. Co., 9 Colo. 333, 12 Pac. Bailey v. Swallow, 98 Minn. 104, 219. Compare King v. Interstate 107 N.W. 727; Palmer v. Coyle, 187 Consol. R. Co., 23 R. I. 583, 51 Mass. 136, 72 N. B. 844; Wei- Atl. 301, 70 L. R. A. 924; CarU v. gand v. Atlantic Refln. Co., 189 Interstate Consol. R. Co., 23 Pa. St. 248, 42 Atl. 132; Wysoeki R. I. 592, 51 Atl. 305. V. Wisconsin Lakes I. & C. Co., 121 19. Arkadelphia Lumber Co. v. Wis. 96, 98 N. W. 950; Knieker- Smith, 78 Ark. 505, 95 S. W. 800. 20. See infra, § 251. § 160 Sape Appliances. 349 There is also mucli diversity of opinion as to what shall be considered as an ordinary tool or implement. It has been held that a statute rendering the master liable for defective "machinery" is not extended to a ease of injmy to an employee arising from the use of ordinary tools such as a hammer. ^^ It "was stated: "We cannot hold, for in our opinion it is not the law, that an employer is hable to a servant when he furnishes him with an ox, a wagon, a saw, a ham- mer or any other tool which appears to be first class, and which subsequently, by some latent defect, breaks and injures the servant. If such were the law, every farmer, contractor or other employer would be Kable to his employee when he furnished him tools and they broke and injured him on account of some latent defects which could not be ascertained by the exercise of ordinary care."''* In reference to the general rule, it was said: "It is one of a just and salutary character, designed for the benefit of employees engaged in work where machinery and materials are used of which they can have but httle knowledge, and not for those engaged in ordinary labor which only requires the use of implements with which they are entirely famihar."^^ As to such articles with which the employee is brought into actual contact and where by handling them he must necessarily see and know their condition and report to the employer, the master is not presumed to have better or even equal knowledge with his servants, and therefore, if such an implement becomes defective, in the absence of actual notice on the part of the master, he is not liable. 2* 21. Georgia R. & B. Co. v. 23. Marsh v. Chiekering, 101 Nelms, 83 Ga. 70, 9 S. E. 1049, N. Y. 396, 5 N. E. 56. 20 Am. St. Rep. 308. 24. Kinney v. Corbin, 132 Pa. 22. Georgia R. & B. Co. v. St. 341, 19 Atl. 141. Nelms, 83 Ga. 70, 9 S. E. 1049, 20 Am. St. Rep. 308. 350 Master and Servant. § 160 The court state: "A different rule would prevail vdth reference to macliinery or perishable articles which expe- rience teaches require regular inspection and which are ordinarily presumed to demand repairs and attention." The court state further: "When a master provides a servant with an ax or a pick to be used in the latter' s ordinary employment, there would arise no duty on the part of the employer to inspect them, unless after com- plaint made. To aUow a servant to use and handle a chain for days, weeks or months, and then hold a master responsible for accidents resulting from wear and tear or breaking, woidd be harsh law."^^ Exemption based on ground of no superiority of knowledge on part of master. Generally speaking, in the case of simple tools, no Uability rests upon the master for the ordinary perils residting from their use, nor for those latent and ordinary defects or weaknesses which by reason of the common usual character of the appUance, are presumed to be known by all men ahke; but such exemption is based on the condition that the defect and peril are such that no superiority of knowledge of the master over the employee exists or can be presumed.^' 25. Kinney v. Corbin, 132 Pa. feet is not known to the employee, St. 341, 19 Atl. 141. See also De or if of such a character as not to be Graff V. Railway Co., 76 N. Y. 125; obvious to his observation, the rule Morton v. Railway Co., 81 Mich, has no appHcation. The defect in 423, 46 N. W. 111. the wrench was a loose screw which 26. Stork V. Charles Stolper held the jaws together. Stork v. Cooperage Co., 127 Wis. 318, 106 Charles Stolper Cooperage Co., N. W. 841. The court, however, 127 Wis. 318, 106 N. W. 841. stated that the foregoing rule which Whether a cant hook, defective in it announced, was not appUcable to the prong being dull, was such a a monkey wrench, though conceded tool or appliance as was within the ordinarily to be an ordinary tool, master's duty to maintain reason- under an exception which it states ably safe, was, as well as the ques- to be that if the master is actually tion of the duty of the master in cognizant of the defect and as a respect to simple tools, elaborately reasonable man he should appre- discussed by the Georgia coxu-t. eiate that it is Ukely to result in Many cases are cited and the con- injury to one using it, and the de- elusion was reached that while the § 161 Sape Appliances. 351 § 161. Illustrations relating to common tools. Blocks. Where blocks of -wood necessary for doing certain work, can be picked up at any time around the workshop, the failure of the master to specially fiimish them will not render the master liable for injuries to an employee caused by their non-use." But blocks fxu-nished an employee to stop coal cars at a dimip, were held to be such appUances as come within the general rule of the master's duty, where they were to be furnished as called for. ^s Bucket. A bucket was used in hoisting and transferring coal from a dock to cars. It was of simple construction. The foreman was injured by a defect therein, which he or any one else had no knowledge of prior to the injury. The rule or custom was that if any buckets became defective master may not owe a duty of in- sHp Co., 127 Mich. 103, 86 N. W. spection.to very simple appliances 520, 54 L. R. A. 456, 89 Am. St. to the employee using them, on the Rep. 461. The exact question of ground he has just as good or better whether such an implement was an opportunity than the master to ordinary tool was not discussed; observe their condition, yet where the case being determined upon the injury is caused to an employee not distinction the court made between in any manner connected with the a case where the employee selects use of the tool, the master might be from a quantity furnished of safe liable for a defect which proper and suitable appliances, one that is inspection would have disclosed, defective or unfit, and a case Williams v. Garbutt Lumber Co., where a specific tool is furnished 132 Ga. 221, 64 S. E. 65. In another for use. See also Rawley v. case, it was stated as a general CoUiau, 90 Mich. 31, 51 N. W. 350. proposition that where a specific 27. Hathaway v. lUinois Cent, tool is given to the servant for use R. Co., 92 Iowa, 337, 60 N. W. (not one of his own selection), the 651. See also Robinson v. Blake master is bound to see that, as fur- Mfg. Co., 143 Mass. 528, 10 N. E. nished in the first instance, it is 314. reasonably safe and fit for the use 28. Lehigh VaUey Coal Co. v. intended. The particular tool was Warrek, 28 C. C. A. 540, 84 Fed. a soft head for use in riveting metal ■866. plates. Noble v. Bessemer Steajn- 352 Mastee and Seevant. § 161 for him to cause the same to be set aside for repairs, by a repairer, who would come and make the repairs. It was held he assumed the risk. ^^ Chains. Whether ordinary chains are such implements as are embraced within the general rule is not settled. Some courts hold that they are, while others class them as mere ordinary tools. Evidently, since chains are used for a great variety of purposes, and much oftentimes depends upon their condition as to strength in withstanding the strain required, and particularly that the employee has no reasonable opportunity of ascertaining their condition in many instances, a uniform rule cannot be applied. It may be that where the employee has an equal or better knowledge of their condition than the master, or better opportunities for knowing its condition, that it assumes the character of an ordinary tool. This would seem to be in accord with what was stated in a leading case. '" The rule as apphed by the Massachusetts court is that if a servant is injured by the breaking of a chain, de- signed for his permanent use in hoisting goods, in- conse- quence of a feUow-servant's negligence, in using old instead of new iron in replacing ahnk, the master is hable for the injury though the proximate cause thereof was the negligence of the fellow-servant in making the Unk, since as the chain was a permanent appliance, the master was bound to see that it was safe, as well as to furnish proper material and a competent smith to make it. '^ As to brake chains, it would seem that they were such appliances or parts of an appliance, as come within the rule of the master's duty in respect to furnishing reason- ably safe appliances.'^ 29. LukoosMv. Michigan Cent. 46 Minn. 18, 48 N. "W. 409. R. Co., 129 N. W. (Mioh.) 707. 31. HaskeU v. Cape Ann An- 30. Kinney v. Corbin, 132 Pa. elior Works, 178 Mass. 486, 59 St. 341, 19 Atl. 141. See also N. E. 1113, 4 L. R. A. (N. 8.) 220. Honiflus V. Chambersburg Eng. 32. Morton v. Railway Co., Co., 196 Pa. St. 47, 46 Atl. 259; 81 Mich. 423, 46 N. W. Ill; De Krogstadt v. Northern Pao. R. Co., Graff v. Railway Co., 76 N. Y. 125. § 161 Safe Appliances. 353 And the same as to an ordinary chain which broke while being used to straighten a cable.'* Crowbar. The general rule in respect to the master's duty in fur- nishing reasonably safe appliances, was applied to an ordinary crowbar selected by a servant from a quantity furnished by the master. It broke while being used to turn a jack screw. There was some evidence that it might have been weakened by contact with water while it was hot.** Hammer. A hammer is a tool or instrument ordinarily used by one man in the performance of manual labor. It may be an essential part of machinery, when it is intended to be and is operated by means thereof; but when disconnected from any other mechanical appliance and operated simply by muscular strength directly apphed, such tool or instrument is not "machinery" in its most comprehensive significa- tion or in the meaning of the Alabama statute. *^ This rule as to non-Uability of the master was apphed to a steel hammer where an injury was occasioned by a sHver being thrown therefrom, the claim being that it was too soft.*® And also to a snap hammer, where an employee was injured by a chip flying therefrom.*^ 33. Martin v. Gould, 103 Minn. 36. Lynn v. Glucose Sugar Co., 467, 115 N. W. 276. See also 128 Iowa, 501, 104 N. W. 577. Honifius V. Chambersburg Eng. See also Meyer v. Ladewig, 130 Co., 196 Pa. St. 47, 46 Atl. 259; Wis. 566, 110 N. W. 419, 13 L. R. Jones V. Herrick, 141 Iowa, 615, A. (N. S.) 684; Vanderpool v. 118 N. W. 444. Partridge, 79 Neb. 165, 112 N. W. 34. MiUer v. Great Northern 318, 13 L. R. A. (N. S.) 668. R. Co., 85 Minn. 272, 88 N. W. 37. It was said: "It was made 758. by a competent blacksmith from 35. Georgia Pac. R. Co. v. proper material. Such tools were Brooks, 84 Ala. 138, 4 So. 289; used by skilled mechanics who were Georgia R. & B. Co. v. Nebns, 83 competent to decide when out of Ga. 70, 9 S. B. 1049. 20 Am. St. repair, and had the liberty of hav- Rep. 308. ing them repaired or replaced." 1 M. & S.— 23 354 Masteb and Servant. § 161 And also to a steel strildng hammer, it being stated that the duty of inspection does not extend to the small and common tools in every day use of the fitness of which the employees using them may reasonably be supposed to be competent to judge. '^ And the same with respect to a common sledge pur- chased from a hardware dealer. ^' And also to a pick or hammer having a wooden handle, inserted in an iron cross head, having a hammer face on one end and pick point on the other, it being a simple tool.*" Yet it was stated by the same court that the rule that the master does not owe his servants the duty of inspection of small tools, such as hammers, planes, etc., applies only to defects from use, and was not appUed to a hammer de- fective in its manufacture in that its face or surface was not smooth.*^ Where a hammer, the property of a servant, was pur- chased from a reputable dealer, it was held the master did not owe a feUow-servant the duty of inspection. A helper seventeen years old was injured by a chip from the hammer coming in contact with his eye.*^ On the other hand, other courts have held a hammer an appliance within the general rule.*' It did not appear an inspection 41. Morris v. Eastern R. Co., would have disclosed any defect. 88 Minn. 112, 92 N. W. 535. Three of the judges, a majority of 42. Dompier v. Lewis, 131 those who concurred, were also of Mich. 144, 91 N. "W. 152. the opinion that no duty of in- 43. Thus it was held that an spection rested upon the master ordinary hammer used for driving as to common tools in every day spilses, was such an appliance as to use. Wachsmuth v. Shaw Elec- come within the general rule, and trie Crane Co., 118 Mich. 275, 76 where it appeared that the face of a N. W. 497. hammer was brittle and in its use an 38. Golden v. Ellis, 104 Me. employee suffered injury in the loss 177, 71 Atl. 649. of an eye from a fragment breaking 39. Koschman v. Ash, 98 Minn, from the face of such hammer, the 312, 108 N. W. 514, 116 Am. St. master was held hable upon the Rep. 373. ground of having furnished an 40. Lehman v. Chicago, St. P., unsafe appliance. Johnson v. Mis- M. & D. R. Co., 140 Wis. 497, 122 souri Pac. R. Co., 96 Mo. 340, 9 N. W. 1059. S. W. 790, 9 Am. St. Rep. 351. nei Sape Appliances. 355 Harness. A harness furnislied. for a servant's use in driving a vicious horse evidently was held not within the rule relat- ing to ordinary tools, although the viciousness of the horse was known to both master and servant, the master being chargeable with knowledge of the itisuf&cieney of the harness, and the servant ignorant thereof. The master was held liable for injuries sustained by reason of such defect.^* Where an employee was injured by a chip flying from a hammer known as a "softhead" when struck by a riveting hammer, resulting in the loss of an eye to an employee, the question whether in its construc- tion, temper had been left in the soft end, or that it had become hardened and crystalized by use, held upon the evidence a question for the jury. Seemingly it was ad- mitted, if the former, the employer was negligent. Potvin v. West Bay City Shipbuilding Co., 156 Mich. 201, 120 N. W. 613. See also Noble V. Bessemer Steamship Co., 127 Mich. 103, 86 N. W. 620, 54 L. R. A. 456, 89 Am. St. Eep. 461. The Texas court seems to have ap- plied the rule of the master's duty in furnishing reasonably safe ap- pliances to an ordinary hammer and to have held a master liable where the face of such a hammer had become chipped or cracked from use, for an injury to an em- ployee not using it, from a chip flying therefrom. De la Vergne Refrigerating Mach. Co. v. Stahl, 24 Tex. Civ. App. 471, 60 S. W. 319. What was termed a flogging hammer was said not to be an ordi- nary tool within the rules relating to the latter in respect to the master's duty. A distinction was made be- tween furnishing such a tool, de- fective in construction, and one becoming defective from use, and also where furnished direct and one selected from a mass supplied. The decision was upon demurrer and the ease of Hefferen v. Northern Pac. R. Co., 45 Minn. 471, 48 N. W. 1, 526, was distinguished. Norris V. Eastern R. Co., 88 Minn. 112, 92 N. W. 535. And see VantHul v. Great Northern R. Co., 90 Minn. 329, 96 N. W. 789. Seemingly the Indiana Court does not make an exception in the rule as to the master's duty in furnishing rea- sonably safe appKances in favor of ordinary tools, as it held that the master was chargeable with knowl- edge of defects in a hickory handle to a hammer, as the defect might have been disclosed by inspection. Baltimore & 0. S. W. R. Co. v. Amos, 20 Ind. App. 378, 49 N. E. 854. 44. Cooper v. Robert Portner Brewing Co., 112 Ga. 894, 38 S. E. 91. See also Murphy v. O'Neil, 204 Mass. 42, 90 N. E. 406, 26 L. R. A. (N. S.) 146. 356 Masi'ee and Servant. '^ 161 Hook. With respect to a hook which an employee was using in his attempt to remove timbers in a mill, it was stated that it being a simple contrivance, the danger in its use easily comprehended, and being entirely in his care, he assumed, the risk, if any, from its end being straight instead of curved and of its being dull. Whether within the excep- tion to the general rule as an ordinary tool is not stated except by implication.*^ Ladders. With respect to ladders, there not only seems to be a contrarity of opinion, but the question is compUeated by the character of the tool as weU as by the use to which it is placed. It may safely be said that the courts of most of the states, in the absence of a statute upon the subject, have held that an ordinary ladder is not such an apphance as comes within the general rule of the master's duty." The Tennessee court held, however, that an ordinary ladder is an apphance within the rule of the personal duty of the master, and that an employee was justified in rely- ing upon the repair of the ladder after objecting to its condition, and that the master was hable for the insuf- ficient manner in which the repairs were made. " And stich was the decision of the New Jersey court, in which a distinction was made between a ladder fur- nished and a temporary platform which f eUowworkmen had to adjust as the work proceeded. ** Thfi Missouri court also holds to the doctrine that a 45. Olson V. Doherty Lumber 256, 66 Atl. 576, 13 L. R. A. (N. Co., 102 Wis. 264, 78 N. W. 672. S.) 687; Dessecker v. Phoenix See The Neptuno, 30 Fed. 925. MUls Co., 98 Minn. 439, 108 N. W. 46. Corcoran v. Milwaukee Gas 516. Light Co., 81 Wis. 191, 51 N. W. 47. Ritt v. True Tag Paint Co., 328; Marsh v. Chickering, 101 N. 108 Tenn. 646, 69 S. W. 324. T. 396, 5 N.E. 56; CahiU V.Hilton, 48. Planigan v. Guggenheim 106 N. Y. 512, 13 N. E. 339; Sheri- Smelting Co., 63 N. J. L. 647, 44 dan V. Gorham Mfg. Co., 28 R. I. Atl. 762. § 161 Sapb Appliances. 357 ladder is an appKance within the master's duty, *' and the same has been held by a federal court.*" A thirty foot ladder attached to a water tank only occasionally used, cannot be said, as matter of law, to be a common tool or appliance within the rule which exempts the master from the duty of inspection." Nor a fortyfoot extension ladder used by an electric light company. The replacing of a rotten round in such a ladder was held not ordinary repairs which a workman is expected to make, in the absence of proof that he knew of the defective condition.*^ The servant, however, takes the risk of all defects in a ladder which are open and obvious.^' Where ladders are furnished that are suf&cient without being spliced, or a quantity of ladders are furnished from which selection may be made, the master cannot be held liable, where workmen spliced one such ladder with a shorter one, and in such condition it was used by them, for injuries caused to one of them by the breaking of one of such ladders.** Lantern and globe. A lantern globe is not such an implement as requires inspection on the part of the master," but the failure to furnish a suitable lantern to enable a brakeman to safely couple cars at night was held to be a neglect of duty of the part of the master.*^ 49. Steinhauser V. Spraul, 114 MiU. Co., 98 Wis. 407, 74 N. W. 91, Mo. 651, 21 S. W. 515, 859; S. C, 67 Am. St. Rep. 816. 127 Mo. 541, 28 S. W. 620, 30 54. McKay v. Hand, 168 Mass. S. W. 102, 27 L. R. A. 441. 270, 47 N. E. 104; Higgins v. Hig- 50. The Truro, 31 Fed. 158. gins, 188 Mass. 113, 74 N. E. 471. 61. Nichols V. Pere Marquette 55. Gulf, C. & S. P. R. Co. v. R. Co., 145 Mich. 643, 108 N. W. LarHn, 98 Tex. 225, 82 S. W. 1026, 1016. 1 L. R. A. (N. S.) 944. 52. Twombly v. Consolidated 66. Atchison, T. & S. F. R. E. L. Co., 98 Me. 353, 57 Atl. 85, Co. v. Lannigan, 56 Kan. 109, 64 L. R. A. 551. 42 Pao. 343. See Pennsylvania 53. Borden v. Daisy Roller Co. v. Congdon, 134 Ind. 226, 33 N. E. 795, 39 Am. St. Rep. 251. 358 Masteb and Servant. § IBl Maul. An ordinary maul was not considered in the light of an ordinary tool. It had a crooked and cracked handle, was badly worn and battered, uneven on the surface, and when the employee struck a blow with it, it glanced and re- bounded in such a way as to cause him to loose his balance on the top bent of a bridge upon which he was working. It was held that the question of furnishing a defective tool as well as that of the master's knowledge, were proper questions for the jury." Platform. A platform built at the edge of a stream or lake used for unloading logging ears, was held to be an appliance within the rule requiring a master to furnish a reasonably safe place for his employees to work.*^ Pole or stick used as a temporary axle. Such an implement was held to be an ordinary tool. It was not machinery or such an appliance which a failiire to furnish would constitute neghgence. It was the duty of employees to furnish such a thing, many of which with- out doubt could be found within easy reach. ^^ Push Pole. A push pole, however, attached to a switching engine, was held an appliance of a permanent character, which it was the duty of a raUroad company to inspect.*" Ropes. In general, ropes are not considered in the light of an ordinary tool. While the question does not seem to have been specifically raised, yet it has been quite uniformly considered by the courts that ropes were such an appli- ance as came within the rule of the master's duty. The 57. Chicago, K. & W. R. Co. v. 59. Potter v. Chicago, R. I. & Blevins, 46 Kan. 370, 26 Pac. 687. P. R. Co., 46 Iowa, 399. 58. Bailey v. Swallow, 98 Minn. 60. Pennsylvania R. Co. v. 104, 107 N. W. 727. Forstall, 87 C. C. A. 73, 159 Fed. 893. § 161 Sape Appliances. 359 questions that have been most frequently involved are the selection of a rope by a fellow-servant from a quan- tity furnished, and whether the servant so selecting, as to such act, represented the master. ^^ A rope used for lowering timber in the construction of a trestle along a railroad track, by means of which heavy timbers are put into their place, is in no sense a part of the ways, works, machinery or plant of a railroad company within the Alabama statute.*^ Screen. The use of a screen to protect the eyes of an employee while another employee in a railroad shop was chiseling a cylinder, was held a mere temporary expendiency of the employee, the hanging of which was not a part of the master's duty in order to make the place safe.*^ Seat. A seat upon which an employee was sitting while oper- ating a machine, so constructed that by sitting too near the end and reaching for articles coming from the machine, it was liable to tip and throw the operator upon the machine, was held an unsuitable appliance, and espe- cially where the operator was directed to do an act most likely to cause the seat to tip.^* It was, however, held that the master .was not required to furnish seats for his female employees of such a char- acter that they would not tip over when caught in their skirts.®* Set or snap. A set or snap used to receive blows of a sledge in riveting eye beams, was evidently considered an ordinary 61. Telander v. Sunlin, 44 63. Ailes v. Illinois Cent. R. Fed. 564; Lund v. Hersey Lumber Co., 135 Iowa, 154, 112 N. W. 226. Co., 41 Fed. 202 ; Perry V. Ricketts, 64. Spaulding v. Forbes Litho- 55 HI. 234; Indiana Car Co. v. graph Mfg. Co., 171 Mass. 271. Parker, 100 Ind. 181; Warden v. 50 N. E. 543, 68 Am. St. Rep. 424. Old Colony Ry., 137 Mass. 204. 65. Donohoe v. Lonsdale Co., 62. Southern R. Co. v. Moore, 25 R. I. 187, 55 Atl. 326. 128 Ala. 434, 29 So. 659. 360 Master and Seevant. § 161 tool, although the specific statement of the ground for the decision that the master was not Uable for an injury to an employee from a sliver flying from the tool, was that the danger was as apparent and within the comprehen- sion of the employee as the master.** Sewing machine belt. An ordinary sewing machine belt consisting of several parts fastened with hooks, is not a dangerous instrumen- tality, the use of which by the master wiU render him Uable for injuries to a servant." Ships' rigging. The general rule which governs the master in respect to the character and condition of the appUance he should furnish for the use of his employees, extends to and includes the rigging of a ship and the seamen who are employed thereon or in connection therewith.** Skids. It was held to be the master's duty to furnish sMds for unloading raUs from cars and the duty of employees to so carefully use and place them as to avoid injuring one another. '^ Sline. A sUng which holds a suspended staging at the side of a vessel was held a part of the permanent instrumentalities provided for employees, both at common law and under the Massachusetts Employer's LiabiUty Act, and not a mere temporary makeshift devised by employees to aid them in the performance of their work.™ 66. Gillaspie v. United Iron 784; The Norway v. Jensen, 6^ Works Co., 76 Kan. 70, 90 Pao. 760. lU. 373. 67. Nelson-Bethel Clothing Co. 69. Indianapolis Fraction & V. Pitts, 131 Ky. 65, 114 S. W. 331, Terminal Co. v. Kinney, 171 Ind. 23 L. R. A. (N. S.) 1013. 612, 85 N. E. 954, 23 L. R. A. (N. , 68. Thompson v. Hermann, 47 S.) 711. Wis. 602, 3 N. W. 579, 32 Am. R«p. 70. Doherty v. Booth, 200 Mass. 522, 86 N. E. 945. ^ 161 Safe Appliances. 361 Steam. The duty of fumishing adequate steam capacity to make tlie operation of machinery reasonably safe rests upon the master, and is within the rule that makes it his duty to furnish reasonably safe machinery. ''' Steel bar. It was held that a steel bar used by employees to aUgn a railroad track was not machinery within the Code provision authorizing a recovery by a servant for personal injiu-ies caused by any defect in the condition of the machinery used in the business of the master.''* Steel chisel. A steel chisel used in cutting metal by striking it with a hammer, was evidently held to be an ordinary tool, the duty of inspection and repair being incident to the duty to use, and where an employee was injured by a piece of steel flying from the chisel, the negligence, if any, was held to be that of a fellow-servant and not of the mas- ter.'' Steel implement. It was held, however, in another case, that the mere fact that in breaking rock with a steel implement in- tended to cut rails, made of the best steel and practically new, a fragment of steel flew from it, did not establish negUgence on the part of the master. It was said with reference to the general rule: "It has never been carried to the extent of holding him (the master) hable for defects in tools, material or place of work, that no sort of inspec- tion on his part coidd have discovered, for he is not bound to make the tools, material or place of work absolutely safe, or to insm-e those engaged in the service against the ordinary risks incident to the nature of the employment."'* 71. Burgess V. Humphrey Book- 73. Demato v. Hudson County ease Co., 156 Mich. 345, 120 N. W. Gas Co., 74 N. J. L. 793, 67 Atl. 790. 28. 72. Clements v. Alabama Great 74. Langhom v. Wiley, 28 Ky. Southern R. Co., 127 Ala. 166, L. Rep. 1186, 91 S. W. 255. 28 So. 643. 362 Master and Seevant. '^ 161 Steel pin. The master's duty in respect to his appliances was extended to a steel pin made in the master's shop. It was alleged to be defective from being over tempered whereby slivers of steel were Ukely to fly therefrom in being driven.'^ Truck. It was held that an ordinary truck was not such a simple appliance as that an ordinary workman would be expected to repair it.'^ Turn table and switches. The construction and maintenance of turn tables and switches are equally within the duty of the master as the construction of the main Une. They are essential to its operation and without them or efficient substitutes for them, the road could not be used, and such duty requires the exercise of reasonable care to keep them in a fit and safe condition. ^^ Wagon. The rule requiring a master to furnish his servant with reasonably safe appUances, was applied to a wagon, where it did not appear affirmatively that the servant had used or been acquainted with the wagon for a sufficient length of time to have necessarily tested its strength or observed its defects.''* It was held, however, that it was not the duty of the master to inspect a wagon bought of a reputable maker of wagons for the trade and to be used in the ordinary way, though if employed in a hazardous use there may be such duty." 75. Goransson v. Riter Conley 77. Elmer v. Locke, 135 Mass. Mfg. Co., 186 Mo. 300, 85 S. W. 575. 338. 78. Boelter v. Ross Lumber 76. Paidsen v. Bittendorf Axle Co., 103 Wis. 324, 79 N. W. 243. Co., 146 Iowa, 399, 125 N. W. 174. 79. TaHman v. Nelson, 141 Mo. App. 478, 125 S. W. 1181. § 161 Safe Appliances. 363 Watch box. A watch, box for use by a flagman and placed between two tracks, is an appliance which it is the personal duty of the master to see placed in such a position as not to endanger the flagman. Servants who remove it for repairs and replace it, represent the master.*" Wrench. Where a wrench used by an employee in screwing a nut on a bolt broke from the strain, causing the emploj ee to fall from an elevated position, it was held that of itself was not evidence of neghgence. The wrench was not a danger- ous tool and injury resulting from its breaking could not reasonably have been anticipated.*^ 80. Philadelphia, B. & W. R. 81. Garnett v. Phoenix Bridge Co. V. Devers, 101 Md. 341, 61 Co., 98 Fed. 192. Atl. 418. 364 Master and Servant. n. CHARACTER AND EXTENT OF DUTY. See. 162. Necessity of furnishing safest and best appliances. Late improvements not re- quired. Rule as stated in early case. Master not a guarantor or insurer. Doctrine as laid down by Wisconsin court. Doctrine of Minnesota and Pennsylvania courts. Railroads not required to equip cars Tvith every possible appliance to in- sure safety. Rule applied to arrange- ment of mactinery and adjustment of belts. What is reasonably prudent and safe as measure of duty. Doctrine of Texas court. Where character and sufl- eiency held question for jury. Cars without ladders. Derailing switch, absence of. 163. General use as test. Rule stated in different forms. Purchase from, reputable dealer or manufacturer. Rule applied to derrick chain. Rule applied to torpedoes. General use not established by custom of a few well regulated roads. Special safety devices not required when not in general use. See. Machine fastened in usual way. 164. Rule as applied to particular appliances. Automatic couplers. Cars. Chock on a vessel. Fuse. Gearing. Guards to machines. Guard rails on machine. Hand cars. Rails. Paint, character of Set screws. Signals. Switches. 165. Rule as to general use not universally adopted. Rule in North Carolina. Exception in Michigan as to switch locks. Rule in Colorado. Rule not appHed where safety g^uard would have avoided accident. Where place or appliance obviously dangerous. 166. Where evidence conflicting, question one for jury. 167. Where master required to adopt such as are in gen- eral use. 168. New inventions. Not required to adopt more safe if his own is reason- ably safe. 169. Rule as affected by inex- perience of employee. 170. Sufficiency for purpose for which used. ^62 Sape Appliances. 365 Sec, Sec. 171. Machinery or appliances not Hook connecting cable with incidental to service. car. 172. Illustrations of rule as to suf- Manner of fastening tank ficiency for particular pur- to framework of tender. pose. Long use without accident Belt shifter. not conclusive. Boiler. Rule not applied. Brake beam. 174. Different kinds in use. Bumpers. 175. Adjustment of appliances. Cable chain. 176. Where employees duty to Cage in mine. select material from that Cars. furnished. Check chains. Apparatus for hoisting Coal, quality of. smoke stack. CooMng retort. Appliance for unloading Couplings and draw bars. cars. Crow bars. Belt connection. Derrick. Belt tightener. Emerywheel. Chains holding dirt. Guard rail. Guard rail about machines. Hand holds, absence of. Fastening of guy ropes. Hook. Location of blow off pipe. Ladder. Platform for adjustment of Locomotive, sloping tank. appliance. Oil box on cars. Racks built upon cars. Pulley block. Setting up grind stones. Rack for storage of lumber. Wind mill and water tank, Reversing rod. adjustment of detached Ring. parts. Ropes. 177. Reasonable time to remedy Semaphore, location of. defect. Ship. Whether duty to repair in Switch. specified time if warning Wrench. is given. 173. Long use without accident. § 162. Necessity of furnishing safest and best appliances. The underlying doctrine of the master's duty towards his servant, with respect to the character of the appli- ances furnished and place of work, as well as other duties that rest upon him, is that of the exercise of ordinary care. His duty does not extend to providing reasonably safe places and apphances, but only to the exercise of reason- able care to provide such, and in determining the habiUty of the master in the matter of their sufficiency this rule 366 Master and Servant. §162 should be the guiding test. The definition of such care has been stated in general terms. Its application to par- ticular appUances, methods and duties is not always free from difficulty. While in general the question of the exer- cise of ordinary care is for the jury, yet the courts have prescribed certain limits to this general rule within which the question must be determined. They have assumed and so declared that the mass of ordinarily prudent men in respect to their apphances, do not always adopt the safest or best of such, and hence a rule of almost imiversal appUcation has been promulgated to the effect that the employer is not bound to furnish for his workmen the safest machinery nor provide the best material for its operation. If the machinery be of an ordinary character and such as can with reasonable care be used without danger, it is all his duty requires. It is sufficient if rea- sonably safe.'^ 82. Armour & Co. v. Russell, 75 C. C. A. 416, 144 Fed. 614, 6 L. R. A. (N. S.) 602; Chicago, R. I. & P. R. Co. V. Lonergan, 118 111. 41, 7 N. E. 55; Lake Shore & M. S. R. Co. V. McCormiek, 74 Ind. 440; Payne v. Reese, 100 Pa. St. 301; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483; Burke v. Witherbee, 98 N. Y. 562; Henry v. Staten Island R. Co., 81 N. Y. 373; Camp Point Mfg. Co. v. Ballou, 71 lU. 417; Whitwam v. Wisconsin & M. R. Co., 58 Wis. 408, 17 N. W. 124; RummeU v. Dilworth, 111 Pa. St. 343, 2 Atl. 355, 363; Lehigh & W. B. Coal Co. v. Hayes, 128 Pa. St. 294, 18 Atl. 387, 5 L. R. A. 441, 15 Am. St. Rep. 680; Ft. Wayne, I. & S. R. Co. v. Gilder- shoe, 33 Mich. 133; Botsford v. Michigan Cent. R. Co., 33 Mich. 266; Michigan Cent. R. Co. v. Smithson, 45 Mich. 212, 7 N. W, 791; McGinnis v. Canada S. Bridge Co., 49 Mich. 466, 13 N. W. 819; Carter v. OHver Oil Co., 34 S. C. 211, 13 S. E. 419, 27 Am. St. Rep. 815; Sisco v. Lehigh & H. R. R. Co., 145 N. Y. 296, 39 N. E. 958; Wormell v. Maine Cent. R. Co., 79 Me. 397, 10 Atl. 49, 1 Am. St. Rep. 321; Pittsburg & C. R. Co. V. Sentmeyer, 92 Par. St. 276, 37 Am. Rep. 684; Shaffer v. Haish, 110 Pa. St. 575, 1 Atl. 575; Friel v. Citizens' R. Co., 115 Mo. 503, 22 S. W. 498; Burns v. Old SterUng I. & M. Co., 188 N. Y. 175, 80 N. E. 927; New Gait House Co. V. Chapman, 30 Ky. L. Rep. 692, 99 S. W.632;Strattner V. Wilmington City Elec. Co., 3 Pennew. (Del.) 245, 50 Atl. 57; Podvin V. Pepperell Mfg. Co., 104 Me. 561, 72 Atl. 618, 129 Am. St. Rep. 411; Murphy v. Hughes, 1 Pennew. (Del.) 250, 40 Atl. 187; Soward v. American Car Foundry Co., 66 W. Va. 266, 66 S. E. 329; § 162 Sapb Appliances. 367 He is simply required to furnisli sueli as are reasonably safe and to see that there are no defects in those which his employees must use. The test is not whether the master has omitted to do something he could have done, but whether in selecting tools and machinery for the servant's use he was reasonably prudent and careful and whether those provided were in fact adequate and proper for the use to which they were applied.*' Such as a prudent man would furnish if his own Ufe were exposed to the danger that would result from unsafe and imsuitable apphances,'^ or such as a reasonably pru- dent person would ordinarily have used under similar circumstances/^ is the test. It is immaterial that the appUance is not owned by the master but by another.*® Late improvements not required. In considering an instruction which stated that the employer's duty required him to furnish such appliances as combine the greatest safety with practical use, after determining that such is not the law, and recognizing the Giebell v. Collins, 54 W. Va. 518, between the roUers. Johnson v 46 S. E. 569; Marks v. Harriet Model Steam Laundry Co., 128 Cotton MiUs, 135 N. C. 287, 47 N. W. (Neb.) 653. S. E. 432; Cummings v. Reins 83. Stringham v. Hilton, 111 Copper Co., 40 Mont. 599, 107 N. Y. 188, 18 N. E. 870, 1 L. R. A. Pao. 904; Womble v. Merchants' 483; Burke v. Witherbee, 98 N. T. Grocery Co., 135 N. C. 474, 47 662; Marsh v. Chickering, 101 S. E. 493; Norfolk & W. R. Co. v. N. Y. 396, 5 N. E. 56; Hewitt v. BeU, 104 Va. 836, 52 S. E. 700; FUnt & P. M. R. Co., 67 Mich. 61, Norfolk & P. Traction Co. v. 34 N. W. 659. Ellington's Adm'r, 108 Va. 245, 84. Burke v. Witherbee, 98 61 S. E. 779, 17 L. R. A. (N. S.) N. Y. 562; Marsh v. Chickering, 117. The master's duty as to his 101 N. Y. 396, 5 N. E. 56. servants is the care required by the 85. Gunter v. GraniteviUe Mfg. usual and ordinary usage of the Co., 18 S. C. 262, 44 Am. Rep. 573. business, that of the ordinary pru- See also La Siire & GraniteviUe dent man, and that aU the cases Mfg. Co., 18 S. C. 275; Ex parte agree that employers are not insur- Johnson, 19 S. C. 492. ers of the safety of their employees. 86. Central of Georgia R. Co. This rule applied where an operator v. McClifford, 120 Ga. 90, 47 S. E. of an ironing mangle was injured 690. by her hand becoming caught 368 Masteb and Sebvant. § 162 distinction that the master's duty is not the same to its employees as to others in respect to the character of his appliances, the court stated: "The master's duty is the exercise of reasonable care only. It is not sufficient to show that there are better or safer ones to be had, but it must be shown that the one supplied had some radical fault, or that its use had become so generally obsolete or sup- planted by others of a superior character, that its adop- tion or retention would itself indicate negligence. The master is not bound to adopt every latest improvement in machinery, nor is he liable for an accident which would not have occurred if such improvement had been adopted. If, at the time of its selection, the appliance in question was the only one in general use, or was the one in general use, and reasonably adapted to the purpose for which it was employed, its selection or retention would not of itself indicate negligence, nor would the fact that better ones were used by others, or that later devices had overcome defects which experience had shown this one possessed, be proof of negligence in the continuance of its use. It is a well settled rule that when an appliance has been in daily use for a long time, and has uniformly proved safe and efficient, its use may be continued without the imputation of imprudence or carelessness."" It should be stated with reference to the statement in the last paragraph, which is the doctrine of the New York courts, that many other courts only give to it a limited apphcation.^* 87. Sappenfield v. Maine Street hook, for the attachment of a & A. P. R. Co., 91 Cal. 48, 27 Pac. brake, it was said: "This question 590. was immaterial as both seem to be 88. The facts were that a street approved appliances, tested by car driver was injured by reason of trial and experience; and if it was the pin attaching the single tree to conceded that the eye bolt has the drawhead of the car, working superior merits, it by no means out of the hole and he was drawn follows that the defendant was over the dashboard. It was claimed bound to discard the hook that had there were other devices that would been used for so long a time, and on have prevented the injury if used, so many cars, without accident. Where the question was as to the A master is not bound to change better appliances, an eye bolt or his machinery to apply every new % 162 Safe Appliances. 369 Rule as stated in early case. One of the parent cases in this country declared that every manufacturer has the right to choose the machinery to be used in his business, and to conduct that business in a manner most agreeable to himself, provided he does not thereby violate the law of the land. He may select his appliances and run his miU with old or new machinery, just as he may ride iu an old or new carriage, navigate an old or new vessel, or occupy an old or new house as he pleases. The employee having knowledge of the eir- cimistances and entering the service for the stipulated reward, cannot complain of the peculiar habits of his employer, nor sue him for damages sustained in and re- sidting from the peculiar service.*' Practically this declaration, supported by its reasoning, has been the text for future cases involving the question, and while it has been followed by many courts, yet as we shall see, there has been of late a tendency on the part of some courts to deviate from it or rather not to give it full force and effect. Master not a guarantor or insurer. It is stated: "AU the courts agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of an ordinary character and reasonable safety, and the former is the test of the latter, for in regard to the style of the implement or the nature of the mode of performance of any work, reasonably safe means safe according to the usages, habits and ordinary risks of the business. Absolute safety is unattainable and employers are not insurers."'" Invention or supposed improvement and all that he can require is that he In appliances, and may even have shall not be deceived as to the In use a machine or an appliance for degree of danger he inetu-s." Won- its operation shown to be less safe der v. Baltimore & O. R. Co., 32 than another ia general use, without Md. 411, 3 Am. Rep. 143. being liable to his servant for the 89. Hayden v. SmithviUe Mfg. consequences of the use of it. If Co., 29 Conn. 548. the servant thinks proper to operate 90. Titus v. Bradford, B. & K. Buoh machine, it is at his own risk R. Co., 136 Pa. St. 618, 20 AtL 617, 1 U. t S.— 24 370 Masteb and Seevant. § 162 "The master does not ^arantee the safety of his serv- ants. He is not bound to furnish them an absolutely safe place to work ia, but is bound simply to use reasonable care and prudence in providing such a place. ... It is culpable negligence which makes the master liable, not a mere error of judgment."'^ He is not bound to make the tools or materials abso- lutely safe or to insure those engaged in the service against the ordinary risks incident to the nature of the employ- ment.'2 Doctrine as laid down by Wisconsin court. The Wisconsin, court ia very emphatic language reit- erated and declared in substance the doctrine herein stated, but quite recently it seems to have forsaken it, and declared a rule seemingly not supported in the decided cases elsewhere, with perhaps one exception. Thus it was originally stated by that court: "The test of neghgence with respect to fmmishing and maintaining ap- pUances and premises, is the presence or absence of that degree of care which ordinarily prudent persons are accustomed to observe about the same or similar affairs in similar circumstances. The employer may carry on his business in such place as he pleases and with such machin- ery and appliances as he may choose, provided only he does not violate the positive law of the land, nor expose his employees to unknown danger. Having observed such degree of care as ordinarily prudent men engaged in the same business observe, the law is satisfied, and no lia- bility arises from accidents which may then happen, 20 Am. St. Rep. 944; O'Neill v. Louisiana court, however, seems Chicago, R. I. & P. R. Co., 66 Neb. to have adopted a very stringent 638, 92 N. W. 731, 60 L. R. A. 443. rule as to the master's duty In 91. Harley v. Buffalo Car Mfg. respect to his appliances. Thus Co., 142 N. Y. 31, 36 N. E. 813; it was declared: "Where an em- O'Neill V. Chicago, R. I. & P. R. ployer can and should provide Co., 66 Neb. 638, 92 N. W. 731, against a possibility of danger 60 L. R. A. 443. to his employee, resulting from 92. Langhom v. WUey, 28 Ky. defective machinery or appliances, L. Rep. 1186, 91 S. W. 255. The and fails to do so, he Is liable for the ^ 162 Safe Appliances. 371 although they might have been prevented by the exercise of a greater degree of care. . . . The standard by which the liabiUty of the defendant is to be tested is the standard which the law has provided. The jury may not be allowed to make a new one to suit their inclination in the particular case."^^ In recent decisions of that court, it is held that the duty of the master to furnish the servant with a reasonably safe place to work is absolute; it cannot be delegated nor can it be performed by him by merely exercising ordinary care to furnish such a place. It is satisfied only by the ac- tual furnishing thereof. This nile apphes to the time of the actual furnishing thereof, not to every instant of time thereafter. This being done, there comes a secondary duty to exercise ordinary care to preserve for the servant its reasonably safe condition. If it becomes unsafe and the servant receives injury before the master has knowledge of the existence of the danger or has reasonable oppor- tunity to obtain such knowledge and reasonable oppor- tunity to remedy the danger, he is not liable.'* The court, as will be observed, appUed this rule to the premises fiuTiished. Subsequently the same rule was approved and declared where the question involved was that of the safety of a scaffold.'' The only support found for the foregoing rule is that of the Washington court where it states that it is the positive duty on the part of the master to furnish suitable and safe machinery, means and appUances for doing the work and to provide a reasonably safe place in which to work.'^ resulting injury." Collins v. H. P. Co., 110 Wis. 307, 85 N. W. 96a F. Lewis & Co., Ill La. 741, 35 94. Howard v. Beldenville Lum- So. 886. bar Co., 129 Wis. 98, 108 N. W. 48. 93. Guinard v. KJaapp-Stout 95. Parker v. Fairbanks Morse & Co. Company, 95 Wis. 482, 70 Mfg. Co., 130 Wis. 525, 110 N. N. W. 671. See also Innes v. W. 409. MUwaukee, 96 Wis. 170, 70 N. W. 96. Metzler v. McKenzie, 34 1064; Relyea v. Tomahawk R. & Wash. 470, 76 Pao. 114, 372 Masteb and Sebvant. § 162 Doctrine of Minnesota and Pennsylvania courts. The doctrine of th.e Minnesota court is in accord with the general doctrine as stated. Thus it was said, the master's duty does not require him to furnish the safest and best appUances in general use. It is sufficient if his own is reasonably safe. If, however, his own is not rea- sonably safe, and there is safer in general use, a jury will be justified in finding a want of ordinary care. A sHde on a saw table was so constructed as not to be reasonably safe, and could readily have been made more safe." It was held error to instruct the jury that if there is any neglect of the employer in furnishing a safe place to work or in furnishing safe tools, the employer is Uable. He is only required to furnish appliances that are reason- ably safe.^^ Railroads not required to equip cars with every possible appliance to insure safety. The duty of a railroad company to a motorman was said to be the furnishing of those appliances which, measured by the standard of good railroading actually conducted, can be said to be reasonably safe, and is not bound to equip its cars with every possible appliance to insure safety.^' Where a gripman upon a motor car was injtired while attempting to pick up the cable which had dropped from his grip, and the charge was that the appUance which he used for this purpose was not so safe as some other kind, it was held, that as the device was perfect of its kind, the mere fact that there might be other kinds more safe, was immaterial."" 97. staler v. Bohn Mfg. Co., 80 99. Mayer v. Detroit, Y. A. A. Minn. 1, 82 N. W. 981. & J. R. Co., 142 Mich, 459, 105 98. Powell V. American Sheet N. W. 888. & Tin Plate Co., 216 Pa. St. 618, 100. Friel y. Citizens' R. Co., 65 Atl. 1113. 115 Mo. 503, 22 S. W. 498. § 162 Sapb Appliances. 373 Rule applied to arrangement of machinery and adjust- ment of belts. The general rule was applied to the arrangement of machines and the adjustment of belts thereon used in mak- ing barbed wire. It appeared unless care was used in re- moving the belt from the fast to the loose pulley, the belt, on account of its being somewhat loose, would attach to the fast pulley and thus start the machine, but would not do so if caution was used.^"^ And was also apphed where the charge was that iu oiUng a belt it coidd have been made more safe.^'"' And also where it was alleged with respect to a mail crane that there was a safer kind in use which worked automatically and that it was placed too near the track. ^°' What is reasonably prudent and safe as measure of ^ duty. An employer does his duty when he provides his employees in such manner as is fairly and reasonably pru- dent and safe. What he fairly and reasonably deems prudent and safe would extend the rule.^"* Yet in a former case the latter statement was held to be the rule. 105 Doctrine of Texas court. It seems that the Texas court of civil appeals is not in accord with the general rule stated, as it declared that it is the duty of a railroad company to use ordinary care to provide its locomotives with the best appUances and improvements for the protection of its servants and that such question is one for the jury.^"^ 101. Shaffer v. Haish, 110 Pa. 104. MoCombs v. Pittsburg & St. 575, 1 Atl. 575. W. R. Co., 130 Pa. St. 182, 18 Atl. 102. ArkadelpMa Lumber Co. 613. V. Betbea, 57 Ark. 76, 200 S. W. 105. Sykes v. Packer, 99 Pa. St. 808. See also Railway Co. v. Davis, 465. 54 Ark. 389, 15 S. W. 895, 26 Am. 106. El Paso & S. W. R. Co. v. St. Rep. 48. Foth, 45 Tex. Civ. App. 275, 100 103. Sisoo V. Lehigh & H. R. R. S. W. 171. Co., 145 N. Y. 296, 39 N. E. 958. 374 Master and Seevant. § 162 Where character and sufficiency held question for jury- The Kentucky court held it was a question for the jury whether an elevator in a laundry was properly con- structed. There was no defect in the elevator as con- structed, but the charge of negligence was that the floor was not constructed with sides so as to prevent the feet of a person riding thereon, from coming in contact with the walls of the elevator well or shaft. ^" And the Minnesota court also held that it was a question for the jury whether the master had exercised reasonable care in furnishing a certain block and pulley to support an employee at a great height, while engaged in painting a bridge. It was perfect of its kind, without defect, and also such as was usual in work of that kind."* Cars without ladders. While the general rule was stated with approval, in reference to cars without ladders, it was said, if a ladder on the end of a car is better calculated to insure safety than a mere smooth sm^ace, without any means of ascending the car to apply the brakes, then they should be provided; if the car was wanting in appliances reasonably necessary for the safety of employees at the time of its construction and so continued when put and used upon the road, it would not be necessary to show any fm-ther knowledge on the part of the defendant in order to fix its UabiUty."' Derailing switch, absence of. The mere absence of a derailing switch was not sufficient to charge a railroad company with negUgence, where cars from some cause moved on to the main track and an employee on a train was injured in a colUsion with them."" 107. Wilson V. Williams, 22 Ky. R. Co., 29 Iowa, 14, 4 Am. Rep. L. Rep. 567, 58 S. W. 444. 181. 108. Anderson v. Fielding, 92 110. Norfolk & W. R. Co. v. Minn. 42, 99 N. W. 357, 104 Am. Cromer's Adm'r, 99 Va. 763, 40 St. Rep. 665. S.E.54. 109. Greenleaf t. Illinois Cent. § 163 Sape Appliances. 375 § 163. General use as test. General use has been generally adopted as a test of ordi- nary care, not that it is absolute in all cases, but is unless there are some pecuUar conditions which render it inappli- cable as a test. Keeping in mind that the underlying doc- trine is that of ordinary care, and that the master's Uabihty rests upon culpable neghgence and not mere error of judgment, it must follow that what the mass of ordinarily prudent men adopt in their business must, within all defi- nitions, constitute ordinary care. It will be observed that in many cases courtsi have been reluctant to adopt such standard or measure of duty, and have adopted conclusions of their own as to what constitutes ordinary care under particular facts and circumstances. Hence in treating this subject it becomes necessary to refer some- what in detail to the adjudged cases not only those where the test has been appUed, but also to those where it has been ignored. The general rule has been stated by courts in many forms but in effect is that the master is boimd to use apphances which are not defective in construction, but as between him and his employees he is not bound to use such as are of the best or most improved description if they are such as are in general use, since that is all that can be required."^ 111. Smith V. St. Louis, K. C. Mach. Co., 70 N. J. L. 330, 58 Atl. & N. R. Co., 69 Mo. 32, 33 Am. 393; Sparks v. River & Harbor Rep. 484; Omaha BottHng Co. v. Imp. Co., 74 N. J. L. 818, 67 Atl. Theiler, 59 Neb. 257, 80 N. W. 821, 600; Service v. Shoneman, 196 80 Am. St. Rep. 673; Weed v. Chi- Pa. St. 63, 46 Atl. 292, 69 L. R. A. cago, St. P. M. & O. R. Co., 5 Neb. 792, 79 Am. St. Rep. 689; Hemy v. (Unof.)623, 99 N.W. 827; Bennett Statten Island R. Co., 81 N. Y. V. Long Island R. Co., 163 N. Y. 373; Brands v. St. Louis Car Co., 1, 57 N. E. 79; Shadford v. Ann 213 Mo. 698, 112 S. W. 511, 18 Arbor St. R. Co., Ill Mich. 390, L. R. A. (N. S.) 701; Delaware 69 N. W. 661; Turner v. Detroit River Iron Ship Bldg. Co. v.Nut^ Southern R. Co., 137 Mich. 142, tal, 119 Pa. St. 149, 13 Atl. 65; 100 N. W. 268; Central Grana- Hewitt v. Flint & P. M. R. Co., 67 ries Co. v. Ault, 75 Neb. 249, 106 Mich. 61, 34 N. W. 659; Lehigh N. W. 418, 107 N. W. 1015; Desro- & W. B. Coal Co. v. Hayes, 128 siers v. Bourn, 26 R. I. 6, 67 Atl. Pa. St. 294, 18 Atl. 387,,5 L. R. A. 935 ; Tompkins y. Marine Engine & 441, 15 Am. St. Rep. 680; Muirhead 376 Masteb and Seevant. § 163 Rule stated in different forms. ^The master is not a guarantor of the safety of his ma- chinery and is only boimd to use ordinary care and pru- dence in the selection and care thereof, and has a right to use and employee such as the experience of trade and manufacture sanctioned as reasonably safe."* Whatever is according to the general, usual and ordinary course adopted by those in the same business, is reason- ably safe within the meaning of the law."' The test of liability is not danger, but negligence, and negligence can never be imputed from the employment of the methods or machinery in general use in the business."* The master's duty is performed by the exercise of ordi- nary care in furnishing such apphanees as have been found safe and are ordinarily used by others in the same business."* The unbending test of neghgence in methods, ma- chinery and apphances is the ordinary usage of the busi- ness. For in regard to the style of the implement or the nature of the mode of doing the work "reasonably safe" V. Hannibal & St. J. R. Co., 103 Pa. St. 387, 17 Atl. 621; Lloyd v. Mo. 251, 15 S. W. 530; Tabler v. Hanes, 126 N. C. 359, 35 S. E. 611; Hannibal & St. J. R. Co., 93 Mo. Fritz v. Salt Lake & O. G. & B. L. 79, 5 S. W. 810; Goodnow v. Wal- Co., 18 Utah, 493, 56 Pac. 90; H. pole Emery MiUs, 146 Maas. 251, D. Williams Cooperage Co. v. 15 N. E. 576; Augerstein v. Jones, Headriok, 86 C. C. A. 648, 159 139 Pa. St. 183, 21 Atl. 24, 23 Am. Fed. 680. St. Rep. 174; Simpson v. Pittsburg 112. Washington & G. R. Co. Locomotive Works, 139 Pa. St. v. MeDade, 135 U. S., 554, 34 L. 245, 21 Atl. 386; Northern Pac. R. Ed. 235, 10 Sup. Ct. Rep. 1044. Co. V. Blake, 11 C. C. A. 93, 63 113. Kehler v. Sehwenk, 144 Fed. 45; Kreider v. Wisconsin Pa. St. 348, 22 Atl. 910, 13 L. R. A. River P. & P. Co., 110 Wis. 645, 374, 27 Am. St. Rep. 633. 86 N. W. 662; Benson v. New 114. Reese v. Hershey, 163 York, N. H. & H. R. Co., 23 R. I. Pa. St. 253, 29 Atl. 907, 43 Am. 147, 49 Atl. 689; Bedford Belt R. St. Rep. 795; Higgins v. Fanning, Co. V. Brown, 142 Ind. 659, 42 195 Pa. St. 599, 46 Atl. 102. N. E. 359; Philadelphia & R. R. Co. 115. GuU, C. & S. F. R. Co. v. V. Hughes, 119 Pa. St. 301, 13 Atl. Warner, 36 S. W. (Tex. Civ. App.) 286; Faber v. Carhsle Mfg. Co., 126 118. § 163 Sapb Appliances. 377 means safe according to the habits and ordinary risks of the business."^ To exercise reasonable care and diligence for the use of employees, safe and sufficient cars and machinery which is most common and usual ia the business of railroad companies."^ Piu-chase from reputable dealer or manufacturer. The master performs his duty to his servant when he provides an appliance in common use and purchased from a reputable and experienced manufacturer, and makes a test where test is required. Whether his duty requires him to test immediately after its installation, depends upon the circumstances of the case and the terms of the contract. The master is not Hable when an accident happens to a servant on the first occasion when the apparatus is used, if the method of use is the same method as would be required to make a proper test."* It was held that where the car was purchased from a reputable manufacturer and inspected the day before the accident, and the brake staff broke from a flaw not discoverable by reasonable inspection, neghgence was not chargeable to the master, i^' And also that the procuring of machinery, by mill owners, of a reputable maker, meets the standard of ordi- nary care, and that the employer may, after proper in- spection, use machinery so purchased without being subject to the charge of failure of duty.^^" The rule was appUed to a cold chisel. It was bought of a reputable manufacturer and duly inspected. Evi- 116. Titus V. Bradford, B. & 118. Bauman v. Cowdin, 75 K. R. Co., 136 Pa. St. 618, 20 Atl. N. J. L. 193, 66 Atl. 914. 517, 20 Am. St. Rep. 944. See also 119. Chestnut v. Southern Ind. Ford V. Anderson, 139 Pa. St. R. Co., 157 Ind. 509, 62 N. E. 261, 21 Atl. 18. 32. See also cases under head of 117. Mad River & L. E. R. Co. inspection, § 243. V. Barber, 5 Ohio St. 541, 67 Am. 120. Reynolds v. Merchants' Deo. 312; Railroad Co. v. Webb, Woolen Co., 168 Mass. 501, 47 N. 12 Ohio St. 475. E. 406. See also inspection. 378 Mastes and Seevant. § 163 dence of experts who subsequently examined it was immaterial. 1^^ The Montana court, however, holds that the fact that an appliance was purchased from a reputable manufac- turer raises only a prima facie presumption that the master performed his duty. ^ ^ ^ Rule applied to derrick chain. The rule that a master may use an appliance which the experience of trade and manufacture has sanctioned as safe, and where he purchases from a reputable manufac- turer, he may rely upon the article as being free from hidden defects, was appKed where a derrick chain so purchased and externally tested, broke from a latent defect not discoverable by ordinary tests. ^^' Rule applied to torpedoes. A railroad company having purchased from a reputable manufactiu-er, torpedoes in general use, which experience had shown were efficient, it owed no duty to make a critical or scientific inspection to ascertain their efficiency, and hence was not hable where a brakeman was kiUed, as alleged, by the failure of one such to explode. ^^* General use not established by custom of a few well regulated roads. While the fitness of railroad appliances for special use may be tested by what is shown to be the custom on weU regulated roads, with respect to such uses under hke circumstances, the practice or custom of a few well regu- lated companies does not have that effect as a conclusion of law. 12* 121. Kent v. Yazoo & M. Mfg. Co. v. Heimlich, 62 C. C. A. V. R. Co., 77 Miss. 494, 27 So. 92, 127 Fed. 92. 620, 78 Am. St. Rep. 535. 124. Siegel v. Detroit G. H. 122. Longpre v. Big Blaekfoot & M. R. Co., 160 Mich. 270, 125 Milling Co., 38 Mont. 99, 99 Pao. N. W. 6. 131. 125. Louisville & N. R. Co. v. 123. Westinghouse Electric & Jones, 130 Ala. 456, 30 So. 586- § 164 Sape Appliances. 379 Special safety devices not required when not in general use. The master having furnished reasonably safe and siut- able appliances in general use in the same kind of business, it was heli he was not liable to his servant for an injury received because of his failure to use some attachment or special device which might have rendered the appliance less dangerous and avoided the accident. ^^^ Machine fastened in usual way. It appearing that a machine which fell upon an em- ployee was fastened to the floor in the usual and customary way, a nonsuit was properly granted. ^^^ § 164. Rule as applied to particular appliances. Automatic couplers. Failure to use automatic couplers in general use on freight cars, was held negligence per se.^** Cars. The general rule was appUed to the use of cars placed at the rear end of trains where flagmen are stationed, which have doors in the end and are without platform or railing. A flagman was injvired while uncoupling a pushing engine, caused by the engine at the head of the train, taking up the slack, thus producing a sudden jerk, which threw the flagman from the train. ^^' Also to the use by a raflroad company of broad guage cars upon a narrow guage track. ^'^ Also to the use of a wrecking car and the method in. which it was operated and drawn in a train. ^^^ 126l Forquer v. Slater Brick R. Co., 152 Pa. St. 314, 25 Atl. Co., 37 Mont. 426, 97 Pao. 843. 498. 127. Schultz V. Bear Creek 130. Titus v. Bradford, B. & Refin. Co., 174 Pa. St. 287, 34 K. R. Co., 136 Pa. St. 618, 20 Atl. Atl. 560. 517, 20 Am. St. Rep. 944. 128. Troxler v. Southern R. 131. Muirhead v. Hannibal & Co., 124 N. C. 189, 32 S. E. 550, St. J. R. Co., 19 Mo. App. 634, 44 L. R. A. 313, 70 Am. St. Rep. afiBrmed 103 Mo. 251, 15 S. W. 580. 530. 129. Davis v. Baltimore & 0. 380 Masteb and Sbevant, § 164 Also vrhere the failure of a railroad company to securely fasten the ends of a car which were on hinges so as to allow the car to be used as a flat car by dropping the ends inward, was charged as negUgence, an employee having sustained injury in attempting to mount the car using such end as a support.^''' Also to brakes on cars although not the best in use.^" Also to bumpers and couplings.''^ Also to a step on a car which was in common use, al- though it projected fifteen inches beyond the side of the car.*" Chock on a vessel. It was said in reference to an appUance upon a vessel, if it was fastened in the manner and mode that was usual and customary with other vessels of Kke character and in a mode fully approved by competent judges, and by previous experience, then there was no neghgence or fault on the part of the owner. *'^ Fuse. It was said the fact that the brand of fuse, supplied by a mining company for the use of its miners, is in general use and favorably known, is not conclusive evidence that the company is not negligent in furnishing that particidar kind of fuse for use. Nor is the fact that a better and safer kind of fuse has been introduced within recent years and come into common use, conclusive evidence that the com- pany is neghgent in usiag the older Idnd. Both facts are but evidence for the consideration of the jury in determin- ing whether the employer failed to exercise the degree of care required by the circumstances, the nature of instru- 132. Graham v. CMoago, St. Pao. R. Co. v. Propst, 83 Ala. 618, P., M. & 0. R. Co., 62 Fed. 896. 3 So. 764; RaUway Co. v. Allen, 133. Henry v. Staten Island 78 Ala. 494. R. Co., 81 N. Y. 373. 135. Turner v. Detroit South- 134. Osborn v. Knox & Lin- ern R. Co., 137 Mich. 142, 100 N. eoln, 68 Me. 49, 28 Am. Rep. 16; W. 268. Richmond & D. R. Co. v. Jones, 136. The Lizzie Frank, 31 Fed. 92 Ala. 218, 9 So. 276; Georgia 477. § 164 Safe Appliances. 381 mentalities, and the danger to be anticipated from defect- ive appliances. ^^^ Gearing. A competent mill wright having been employed to attend to the construction of a freight elevator, using such gearing as was used by the best manufacturers of eleva- tors, of itself a sufficient safety appliance, the iron work being made by a reputable firm, and the pinion which shpped its shaft and caused the elevator to fall being examined by the mill wright before put in use the day the elevator fell and found to be properly keyed, the master's duty towards his employees was performed.^'* Guards to machines. It was held that the defendant should have been per- mitted to show that the same kind of machines were used without guards in another factory where the injured employee had previously worked and that the guard which the defendant had removed from his machine, a guard of his own invention, was not in general use.^^^ The general rule was apphed where the injury occurred in the use of a shaping machine, which the evidence showed was complete without a guard, and was generally so used, but could be and was sometimes provided with a guard or fender as security against the negUgence of workmen or possible accidents.^*" Also where it was charged that it was neghgence not to provide a spreader for a rip saw.^*^ It was held, however, in an action by an employee for injuries in being cut by a swinging saw alleged to have been improperly guarded, evidence that the saw was guarded as 137. Wiita v. Interstate Iron Rep. 795. See safeguards and pre- Co., 103 Minn. 303, 116 N. W. 169, cautions, §§ 179-193, for other 16 L. R. A. (N. S.) 128. cases. 138. Sievers v. Peters B. & 140. Cagney v. H. & St. J. R. L. Co., 151 Ind. 642, 50 N. E. 877, Co., 69 Mo. 416. 62 N. E. 399. 141. Delaware River Iron Ship 139. Reese v. Hershey, 163 Pa. Bldg. Co. v. NuttaU, 119 Pa. St. St. 253, 29 Atl. 907, 43 Am. St. 149, 13 Atl. 65. 382 Master and Sebvant. ^164 such saws used for a like purpose were usually guarded, did not exonerate the master in the absence of proof that such method of guarding was reasonably safe.^** Guard rails on machine. The general rule is stated in several forms and applied where the defect claimed was the absence of guard rails on an ironing machine. ' * ' An employer, however, was held guilty of negligence in not furnishing a guard to prevent small pieces of boards and knots from being thrown back. The machine was of standard type and as sent into the market such machines were not furnished with a guard, yet upon the evidence of a former employee that he caused a board to be bolted to the frame work of the machine to act as a guard, which remained for about two seasons and a half. 142. Roy Lumber Co. v. Don- neUy, 31 Ky. L. Rep. 601, 103 S. W. 255. Where an employee was injured while operating a slab saw, and the negligence charged was the failura of the employer to provide some guard or protection which would prevent a plank forced over the dead rollers from coming in contact with the saw, it was said that, unless it was shown that some such safeguard is usually and customarily employed by those engaged in similar business and under like circumstances, there was no proof of failure of duty by the master in omitting to employ it here. It is error to submit to a jury the question whether the master should have employed the device, in the absence of sufficient evidence of general usage; for jurors are not at liberty to charge a duty upon the master according to their own notions of what was proper under the circumstances, nor upon the opinion ol experts of what was desirable and prudent; but they should determine the ques- tion of derehction in duty by the master by the customary observ- ance of those in like business or as well expressed in Titus v. Brad- ford, B. & K. R. Co., 136 Pa. St. 618, 20 Atl. 517, 20 Am. St. Rep. 944. "Jurors must necessarily de- termine the responsibility of indi- vidual conduct, but they cannot be allowed to set up a standard which shaU in effect dictate the customs or control the business of the com- munity." The testimony of the plaintiff below was wholly insuffi- cient to establish a general usage. It showed that in some few mills some sort of contrivance is used when the saw is in line with the rollers. It was held that a verdict should have been directed for the defendant below. Mississippi River Logging Co. V. Schneider, 20 C. C. A. 390, 74 Fed. 195. 143. Keenan v. Waters, 181 Pa. 247, 37 Atl. 342. % 164 Sapb Appliances. 383 when it was shattered by recoiling pieces of timber and was not replaced, it was held that the employer was liable in not providing some other device. It was said that an employer could not be excused from operating a machine, although of standard type, when a reasonable amount of experience and observation has developed the fact that it is inherently dangerous and could be made reasonably safe by attaching safe guard apphances.^** Hand cars. Where the crank of a hand car was so constructed that the end of a bolt projected through, and an employee was injured by means of his clothing adhering to the thread on the end of the bolt, it was said negligence could not be predicated upon the ground that other cranks had the thread covered by nuts or the end welded and were therefore less dangerous, in the absence of proof that the one used was not a well known device. ^^^ It was held, however, in another case, by another court, neghgence on the part of the master to permit a bolt, one of several connecting together a shaft which was in two pieces, to extend beyond the nut an inch and a half. That reasonably he should have anticipated an increased and unnecessary danger therefrom. ^^* Rails. Where it appeared that the use of a V rail for guards to railroad switches would be safer to employees than the use of a T rail and would answer the purpose of the company equally as well, yet as the latter was in general use, neghgence could not be predicated on its use.^*^ Paint, character of. It was said for injuries suffered by a servant from the use of defective materials when engaged in a work and in a 144. Johnson v. Atwood Lum- 146. Miller v. Inman, 40 Oreg. ber Co., 101 Minn. 325, 112 N. W. 161, 66 Pao. 713. 262. 147. Smith v. St. Louis, K. 145. Carey v. Boston & M. C. «& N. R. Co., 69 Mo. 32, 33 Am. R. Co., 158 Mass. 228, 33 N. B. 512. Rep. 484. 384 Master and Servant, § 164 place not in any sense dangerous, the materials being those for a long time in common use for the purpose to which they were applied and the work done under the direction of a competent supervisor, the master is not hable. So held in reference to the character of paint furnished employees to use in painting the inside of a water tank, which, from some cause not anticipated, exploded injuring the work- men engaged in its use. It was said that the master was not obliged to subject such material to an analysis to determine the hazard in its use.^^* Set screws. It was held a master was not liable for an injury to an employee in not putting the collar on a shaft outside of brackets and in not countersinking the set screws, even though the shaft would have been safer if thus con- structed, the method adopted being such as was in common use.i« It was said in reference to a set screw upon a revolving shaft, that it could not be claimed it was out of repair or defective or unsuitable for the purpose. So long as set screws are in common use, although a recess collar was in common use upon which there was less liability of being 148. Allison Mfg. Co. r. Mo- held by law to a higher degree of Conniek, 118 Pa. St. 519, 12 Atl. skiU than the fair average of the 273, 4 Am. St. Rep. 613. profession or trade, and the stand- 149. It was stated "the law is ard of due care is the eonduot of well settled that the master dis- the average prudent man. The charges his duty when he provides test of negligence in employers is machinery that is of ordinary the same; and however strongly character and reasonably safe. He they may be convinced that there is not required to provide the is a better or less dangerous way, newest and best. The test is no jury can be permitted to say that general use. It was also stated the usual and ordinary way eom- that Titus v. Bradford, B. & K. monly adopted by those in the same R. Co., 136 Pa. St. 618, 20 Atl. 517, business is a negligent way, for 20 Am. St. Rep. 944, was one of the which liability shall be imposed.' ". best considered cases which the Hoffman v. American Foundry court had been able to find, quoting Co., 18 Wash. 287, 51 Pao. 385. therefrom as follows: .'No man is § 164 Sapb Appliances. 385 caught than on the other, it cannot be held that the master is negligent in the use of the former."" Signals. No duty rests upon a railroad company to furnish auto- matic signals in its switch yards. It is enough that those furnished are such as are ia the common and ordinary use."^ Switches. Where a ground switch of a form in common use, was placed in a yard, in a space six feet wide between the tracks, the lock of the switch being placed in the middle of the space and the handle Isdng flat extended to within a foot of the adjacent rail, and it could be safely and effi- ciently worked by standing in the middle opposite the lock, using reasonable care, and a brakeman while using the switch was injured by an engine on the other track; it was held that the fact of the location of the switch was not proof of neghgenee in its construction or arrange- ment. It was said that the switch was of a form in com- mon use and was, to say the most, quite as fit for its place and purpose as an upright switch woxild have been."' It was held the master's duty was performed in the matter of providing a switch for temporary use in the construction of a road, where it was perfect and of a standard variety in use for such pm-pose, it not being customary to lock such switches or provide them with targets, and hence he was not liable to an employee in- jured in jumping from a train to avoid coUision with a flat car on the switch track caused by the switch having been opened in the night time by some imknown person after having been closed."' 150. Goodnow v. Walpole Em- R. Co., 212 Pa. St. 482, 61 Atl. ery MiUs, 146 Mass. 261, 15 N. E., 1017. 676; Hale v. Cteney, 159 Mass. 152. Randall v. Baltimore & 268, 34 N. E. 255; Keats v. Na- 0. R. Co., 109 U. S. 478, 27 L. Ed. tional Heeling Mach. Co., 13 C. 1003, 3 Sup. Ct. Rep. 322. C. A. 221, 65 Fed. 940. 153. Bennett v. Long Island 151. McGregor v. Pennsylvania R. Co., 163 N. Y. 1, 57 N. E. 79. i M 4.S.— 25 386 Masteb and Sebvant. § 165 § 165. Rule as to general use not universally adopted. In Maine ordinary care in the selection and furnishing of appliances is such care as persons of ordinary prudence woiild have exercised under Uke circumstances, and it does not depend upon custom. It would be no excuse for a want of ordinary care that carelessness was universal about the matter involved at the place of the accident, or in the business generally. Customary use has no appli- cation to appliances which are defective. ^^^ The learned court fail^ to explain how or in what manner or by what test or standard it is to be determined what persons of ordinary prudence would do txnder the circumstances. Is it to be left to the mere guess or con- jecture of inexperienced persons? Is not a safer and more certain test that which such ordinarily prudent persons are in the habit of doing? What such persons would do is indefinite, imcertain and impossible of ascertaining by direct proof. The logical presumption is that they would do as they are and have been doing. A similar declaration to that above was made by another court that the test iu the furnishing of appliances by the master of their fitness and as being reasonably safe is such as a reasonably careful man would use under like cir- cumstances. The true test is not alone that others use them.^** It was also held by the Texas court of appeals that the test as to appliances used by railroads is not the character used by raOroads generally but that the master must exercise reasonable and ordinary care in furnishing them.^^° Such a doctrine, it would seem, would permit a jury to determine the character and kind of apphances a rail- road company must use. The Texas court also held that evidence that the equipment used was such as is in gen- eral use among reasonably prudent persons engaged in 154. Sawyer v. J. M. Arnold 156. Gulf, C. & S. P. R. Co. v. Shoe Co., 90 Me. 369, 38 Atl. 333. BeaU, 43 S. W. (Tex. Civ. App.) 155. Croker v. Pusey & Jones 605. Co., 3 Pennew. (Del.) 1, 50 Atl. 61. § 165 Safe Appliances. 387 the same business, is not conclusive that defendant exer- cised ordinary care, as that question depends on the facts in each particular case."^ And practically the same was held by the supreme court of South Carolina. It was there held that an instruc- tion that the defendant was not hable, if it had exercised such care in furnishing proper machinery as other weU regulated companies engaged in similar business exer- cised, was properly refused, since the Uability depended on the care exercised by the defendant in furnishing proper appliances under the circumstances.^^* Rule in North Carolina. The North Carolina court states that the standard of duty is that of the ideal prudent man.^^^ This, it would seem, requires the exercise of extraordi- nary care. Exception in Michigan as to switch locks. It was held that an electric railway company is not re- heved from its obhgation to equip its switches with locks by the fact that such companies generally make no such provision, if common prudence would suggest the adop- tion of the custom of steam roads in that particular."" Rule in Colorado. The Colorado court deeUned to follow the general rule and stated a rule more in accord with that declared in the foregoing cases. Thus it was stated: "A railroad company is not reheved of its obligation to furnish a rea- sonably safe place by showing what other railroads have furnished, and the facts that open trestles are used on other railroads, constitute no defense to an action of this Mnd, if as a fact the court cannot declare as matter of law that the place furnished is reasonably safe. It is the 157. Lyon v. Bedgard, 117 S. 159. Mark v. Harriet Cotton W. (Tex. Civ. App.) 897. Mills, 138 N. C. 401, 50 S. E. 769. 158. Lowrimore v. Palmer Mfg. 160. Noe v. Rapid Transit R. Co., 60 S. C. 153, 38 S. E. 430. Co., 133 Mich. 152, 94 N. W. 743. 388 Mastee and Servant. § 165 province of the jury to determine under all the circxun- stances of the case, "whether the defendant has or has not been guilty of neghgence." The particular defect in con- struction was failure to plank between the rails and an employee was injured in the attempt to couple cars on the open trestle.^" RTile not applied where safety guard would have avoided accident. The rule that the master performs his duty when he furnishes appKanees reasonably safe and such as are in general use, was not apphed, where a machine was sud- denly started by the falling of a lever. It was said that the master had not discharged its full duty, as matter of law, where there was evidence to show that by the employment of one of several simple and inexpensive guards the lever could be secured. ^'^ Where place or appliance obviously dangerous. It was stated by the Wisconsin court that the duty of an employer in respect to furnishing to his employees a reasonably safe place to work, or reasonably safe appU- ances to work with, is not discharged if the place or appK- anee fiumished is obviously dangerous, although it is such as is in general use among employers of ordinary caution and prudence in the same line of business under the same circumstances. The word "obviously" as used, does not mean that the danger should be obvious to any person however unskilled or ignorant, but that it should be obvious to the ordinary careful employer or to a person possessed of equal skill and judgment and opportunity for examination. 1^' 161. Colorado Midland R. Co. 163. Tazdzewski v. Barker, 131 V. Brady, 45 Colo. 203, 101 Pae. Wis. 494, 111 N. W. 689, 120 Am. 62. St. Rep. 1059. See also Winkler v. 162. Smith V. Hewitt Lea-Lum- Power & Mining Mach. Co., 141 ber Co., 55 Wast. 357, 104 Pac. 651. Wis. 244, 124 N. W. 273. ^■^ 166, 167 Sate Appliances. 38§ § 166. Where evidence conflicting, question one for jury. WMle in Pennsylvania the rule has been universally held that the unbending test of negligence in methods, machinery and appliances, is the ordinary usage of the business, and the master performs his duty when he fur- nishes appHances of ordinary character and reasonable safety and the former is the test of the latter, it appearing, however, that there was conflicting 'Evidence as to the fact of a simple device (a safety lock to prevent machinery from changing from a slow to a fast gear), was in general use, the question whether such a device should not have been attached was for the jiuy."* Where the claim of general use was controverted though it appeared that the implement, a vise for drawing up trolley wires on a curve, was in general use for many purposes, but the evidence was conflicting as to its general use for drawing up trolley wires on a curve, the question of the master's Liability was proper for the jury."6 § 167. Whether master required to adopt such as are in general use. Whether the duty of the master requires him to adopt such appliances or improvements in them as are in general use, is a question which must largely depend upon the character and safety of those which he uses. It is submitted that he is not obliged to change the old for new unless his own is not reasonably safe, although the new may be safer and better. It was stated, however, that it is the duty of railroads to keep themselves reason- ably abreast with the improved methods so as to lessen the danger attendant upon the service, and while they are not required to adopt every new invention, it is their duty to adopt such as are ordinarily in use by prudently conducted roads engaged in hke business and surrounded 164. Bonner V. Pittsburg Bridge 165. Shadford v. Ann Arbor Co., 183 Pa. St. 278, 38 St. R. Co., 121 Mich. 224, 80 N. W. Atl. 896. See also Flaherty v. 30. Norwood Eng. Co., 172 Mass. 134, 51 N. E. 463. 390 Master and Servant. § 167 by like circumstances. There have been such advance- ments in science for the control of steana, and improve- ments in the machinery and appUances used by railroads for the better security of life, hmb and property, that it would be inexcusable to continue the use of old methods, machinery and appUances known to be attended with more or less danger, when the danger could be reasonably avoided by the adoption of the newer and those which are in general used by weU regulated railroads. This was said where the question was as to the kind of bumpers and drawheads used, and in applying the rule, it was further said: "If the drawheads and bumpers used by the defendant were such as were employed by many weU con- ducted roads, this would repel all imputation of negligence founded on their mere structure, although other roads, or even a majority of them, adopted a different pattern."^*' It was held that where an employer maintains rip and cross cut saws without appliances in general use, a jury may find that he did not exercise reasonable dihgence to furnish safe machinery. ^'^ It was also held that the master's duty required it, iu transferring a car used for shipment of supphes to hotels, from the passenger to the freight service, to provide such car with appliances ordinarily used on freight cars, to enable employees whose duties required them to pass from one car to another while the train was in motion, to do so without unnecessary risk or danger. ^^^ The North Carohna court holds that a master is bound to supply his workmen with such safe and suitable appli- ances for their work as were approved and in general use. ^*' 166. Riohmond & D. R. Co. v. MiUs, 138 N. C. 410, 51 8. E. 69; Jones, 92 Ala. 218, 9 So. 276. Fearington v. Blackwell Durham 167. Harney v. Chicago, R. I. Tobacco Co., 141 N. C. 80, 53 S. & P. R. Co., 139 Iowa, 359, 115 N. E. 662; Jones v. R. J. Reynolds W. 886. Tobacco Co., 141 N. C. 202, 53 S. 168. Boyle v. Union Pao. R. E. 849; Helms v. South Atlantic Co., 25 Utah, 420, 71 Pac. 988. Waste Co., 151 N. C. 370, 66 S. E. 169. Pressly y. Dover Yam 312. § 168 Sapb Appliances. 391 Such rule was applied to the estabHskment of a block system."" The following statement as to the duty of the master in respect to his apphances, was made by the Maryland court; that it does not require him to provide appliances similar in kind to those that are in use in other establish- ments, even though they may be less dangerous than those in use by Mm, but merely to furnish appliances which are proper and suitable, and tiis is to be deter- mined by its actual condition and not by comparing them with apphances used by other estabUshments for similar work.^'^ It was held, however, by another court, that it was not competent to show negligence in the use of couplers of the old or ordinary style, that later apphances are in general use on other roads, unless it be made to appear that the later device is not only practicable but is of greatet safety."^ § 168. New inventions. Where injury to an employee caused by the breaking of a coupling pin, and it was urged that the defendant shoiild have provided cars with the Potter drawbar, which is more safe, having two couplings instead of one, it was said the evidence fails to show that the Potter draw iron is in general use, or that the center coupling pin is not ordinarily sufficient for the purposer intended. The defendant was not required to adops every or any new device untU its utility had been suffi- ciently tested and it appeared as a whole better than the apphance in use."' Neither companies nor individuals are bound to discard and throw away their implements upon the discovery of 170. Stewart v. Raleigh & A. & N. R. Co., 119 Iowa, 274, 93 N. Air Line R. Co., 137 N. C. 687, W. 275. 50 S. E. 312. 173. Burns v. Chicago, M. & 171. Wood V. Heiges, 83 Md. St. P. R. Co., 69 Iowa, 450, 30 257, 34 Atl. 872. N. W. 25, 58 Am. Rep. 227. 172. Bryee v. Burlington, C. R. 392 Masteb and Servant. § 169 every new invention, which may be thought or claimed to be better than those they have in use.^'* Nor are they required to discard implements and ma- chinery because better have come iuto use, but it is their duty to use reasonable care and precaution in keeping their appUances in good condition and order, and cannot whoUy disregard the improvements of the day.^'^ An employer is not permitted to experiment at the risk of his employees. He must use the ordinary recognized apphances or know that those he does employ are reason- ably safe for the purposes for which they are intended. An employer was held liable for an injury to his em- ployee resulting from the imperfect operation of an ap- pliance, which he had seen in operation, only once."' Not required to adopt more safe if his own is reason- ably safe. Where the appliance furnished by the master is reason- ably safe when properly cared for, even if there was a standard article which was more safe, the master is not obhged to procure it to relieve himself from the charge of negUgence, much less a new invention not standard."' § 169. Rule as affected by inexperience of employee. Where apphances for loading a heavy reel of wire on a track were in place when an employee was called to assist in loading it, never having seen the work done, the rule of the use of appUances in general use was held not to apply."* 174. Lake Shore «Sb M. S. R. Co. N. T. 58, 60 N. E. 276, 54 L. R. A V. McCormick, 74 Ind. 440. See 62; Buttner v. South Baltimore also Lorimer v. St. Paul City R. Steel Car & Foundry Co., 101 Co., 48 Minn. 391, 51 N. W. 125. Md. 168, 60 Atl. 597. 175. Huhn v. Missouri Pao. 178. Kennedy v. Laclede Gas- R. Co., 92 Mo. 440, 4 S. W. 937. light Co., 215 Mo. 688, 115 S. W. See also Smith v. Fordyce, 190 Mo. 407. Such distinction is not founded 1, 88 S. W. 679. upon reason. That the master's 176. Johnson v. Griffiths-Spra- appliances should be sufficient for grue Stevedoring Co., 45 Wash. 278, one class of employees and not 88 Pao. 193, 8 L. R. A. (N. S.) 432. another, cannot be true. The true 177. Quigley v. Levering, 167 doctrine to be applied in oases like § 170 Safe Appliances. 393 § 170. Sufficiency for purpose for which used. It being the law as determined in nearly all juris- dictions, as appears from the decided cases heretofore referred to, that the master performs his duty by the exer- cise of ordinary care in furnishing for the use of his em- ployees, machinery and appUances which are reasonably safe, though not the safest or best in use,— such determina- tion relating to their kind, character and condition gener- ally — ^it does not follow that machinery and appliances furnished shall be such as are reasonably safe for aU purposes. Machinery and appUances may be of such a character as not to be reasonably safe for all purposes and yet reasonably safe for the uses and purposes intended and for which they are furnished. If sufficient, therefore, for such purpose, although unfit for other purposes, the master is not chargeable with fault. When a master employs a servant to do a particular kind of work with particular kind of implements and machinery, he does not agree that the implements and machinery are free from dangers in their use, but he agrees that such implements and machinery are sound and fit for the purpose intended, so far as ordinary care and prudence can discover and that he will use ordinary care and prudence in keeping them in such condition and fitness, and the servant agrees that he wiU use such implements and machineiy with care and prudence, and if under such circumstances harm or injury come to the servant, it must be ranked among the acci- dents, the risk of which the servant must be deemed to have assumed.^" Thus a track which is only used for a special purpose may be fit for such use while not fit for general use.^*" the one stated is that of instruction nedy v. Alden Coal Co., 200 Pa. St. and warning. If the servant is in- 1, 49 Atl. 341. experienced he should be instructed, 180. Stetler v. Chicago & N. and if instructed, the question of W. R. Co., 46 Wis. 497, 1 N. W. the character of the appliance, if 112; Ragon v. Toledo, A. A. & N. reasonably safe when used with M. R. Co., 97 Mich. 265, 56 N. W. proper care, is not involved. 612, 37 Am. St. Rep. 336; Michi- 179. Lake Shore & M. S. R. Co. gan Cent. R. Co. v. Austin, 40 V. McCormick, 74 Ind. 440; Ken- Mich. 247; Batterson v. Chicago & 394 Masteb and Servant. §§ 171, 172 § 171. Machinery or appliances not incidental to service. The duty of the master in respect to his machinery relates to that upon which the servant is employed to work, and not to that with which the servant's emplo3mient has no connection, unless incidental to the service in which he is engaged, as where an employee is injured by hanging a towel on the end of a revolving shaft merely for his own convenience."^ § 172. Illustrations of rule as to sufficiency for particular purpose. The rule will be best understood and the extent to which it is appUcable, by a reference to the cases where the question has been involved. Belt shifter. The master having furnished appliances for shifting a belt from a loose to a tight piiUey, which was safe and suit- able when properly used, could not be held Uable for not furnishing one that was better or safer."* Boiler. Proper tests having been applied to a boiler, showing it safe to be operated at a higher pressure than carried at the time it subsequently exploded, and it appearing it had been operated for years at a higher pressure, the master could rely upon its safety and sufficiency."' Brake beam. Where a brake beam was himg out three inches above the rail, and it was usual for such to hang six inches above the rail, and the evidence disclosed that if the one G. T. R. Co., 53 Mioli. 125, 18 124, citing Felot v. Allen, 98 Mass. N. W. 584; O'DonneU v. Duluth, 572. S. S. & A. R. Co., 89 Mich. 174, 182. Duntley v. Inman, 42 50 N. W. 801; Hewitt v. Flint & Oreg. 334, 70 Pao. 529, 59 L. R. A. P. M. R. Co., 67 Mich. 61, 34 N. 785. W. 659. 183. Beunk V. VaUey City Desk 181. Kauffman v. Maier, 94 Co., 133 Mich. 440, 95 N. W. 548. Cal. 269, 29 Pac. 481, 18 L. R. A. § 172 Safe Appliances. 395 in question had been so hung the plaintiff's foot would not have been caught, it was held the appliance was not siifficient.^** Bumpers. A railroad company could not be charged with negli- gence in using cars with double deadwoods."^ It is at hberty to use apphances as are in use at the time by other weU managed roads, and such as are regarded by competent railroad men as ordinarily safe and fit to be used.^** It was held, however, a question for the jury whether the use of cars with bumpers of uneven height was negh- genee.^*^ The law does not require the of use bumpers of the same height, but so nearly of the same height that they will accomphsh the purpose for which they are intended. ^^^ Cable chain. A cable was used for hoisting and lowering a car upon an incUne. The fact that it broke was not sufficient evi- dence of neghgence. If the cable was reasonably safe for the purposes intended the master's duty was performed. If it broke from the neghgence of the engineer in permit- ting the cable to slack and then suddenly taking up the slack, thus producing an imusual strain, the proximate cause was his neghgence, that of a fellow-servant."* 184. Texas Pao. R. Co. v. 187. Le Clair v. Railway Co., White, 82 Tex. 543, 18 S. W. 478. 20 Minn. 1. 185. Indianapolis, B. & W. R. 188. Muldowney v. Illinois Co. V. Flanigan, 77 lU. 365. See Cent. R. Co., 36 Iowa, 462. (Since also Toledo, W. & W. R. Co. v. the Federal safety appliance act Black, 88 lU. 112; Hathaway v. and conformity thereto by rail- Michigan Cent. R. Co., 51 Mich, roads, it is probable the above 253, 16 N. W. 634, 47 Am. Rep. cases axe unimportant.) 569; Northern Pao. R. Co. v. 189. Hennig v. Globe Foundry Blake, 11 C. C. A. 93, 63 Fed. 45. Co., 112 Mich. 616, 71 N. W. 156; 186. Northern Pao. R. Co. v. Standard Dist. & Distr. Co. v. Blake, 11 C. C. A. 93, 63 Fed. 45. Harris, 75 Neb. 480, 106 N. W. 582. 396 Masteb and Sbevant. § 172 Cage in mine. An employee in a mine was injm-ed while being hoisted from the mine, caused by placing his fingers between a nut on a bolt and the cage, and as the cage started his fingers were pressed and crushed. It was said if the cage was properly constructed and properly used and was suf- ficient for the purpose intended, there was no occasion for the employer to place his hand in the position in which he did.i^ Cars. A brakeman upon a gravel train who left it tempor- arily for his own purposes, attempted to board it while it was going at an imsaf e rate of speed for such an effort, and catching hold of the rim of the gravel box of one of the cars it broke from defective material. It was said: "This was a gravel train constructed of course with reference to the objects and purposes to hold gravel, and this purpose the car might very well answer though it might be very unsafe to trust their rims as a ladder by which to mount the train while in motion, "i" It also was stated that the kind of a car used being suit- able for the particular purpose, the failure to provide a caboose car could not be held neghgence. It could not be inferred from the mere fact that there was difference in the manner of construction of the two kinds, that the one used was unsuitable. ^^^ Check chains. A king bolt which fastened the couplings between an engine and tender broke and the safety chains parted caus- ing a separation of the engine from the tender. As the safety chains were not used for the pm-pose of holding the engine and tender together, the sufficiency of the chains was immaterial."' 190. Jayne v. Sebewaing Coal Co. v. Davis, 4 Tex. Civ. App. 468, Co., 108 Mich. 242, 65 N. W. 971. 23 S. W. 301. 191. Timmons v. Central Ohio 193. Gardner v. St. Louis & R. Co., 6 Ohio St. 105. S. F. R. Co., 135 Mo. 90, 36 S. W. 192. Galveston, H. &. S. A. R. 214. § 172 Safe Appliances. 397 Coal, quality of. It being the duty of the master to a fireman only to furnish coal reasonably suitable for the particular pur- pose, it being sufficient for such purpose, the fact that "while breaking a large lump covering a mass of slate, the fireman was injured, did not establish liability of the master upon the groimd of failure to fvirnish a better quahty.^'* Cooking retort. The master's duty required that he provide a cooking retort with a waste pipe of sufficient capacity to carry off the hot water formed from the condensation of steam in the process of cooking and if provided to keep it clear from obstruction. Evidently it was held it was not sufficient for the purpose where such requirements were wanting. ^'° Couplings and drawbars. The mere fact that there was some evidence that a coupUng pin was too Ught for removal at the proper mo- ment justified a finding that the appUance was not suit- able. "« ' Also a coupling that was too large, found on the dead- wood of a car. The employee was justified in presuming it was suitable for use on that ear."^ It was held that a stiff goose neck coupling was not suitable for use on freight cars,"^ and that a straight link instead of a crooked hnk, for use in coupling cars with drawbars of imequal height, was not suitable.^'' It was held, however, that the spring, part of a device for holding draw bars of cars in place which had become 194. Vissman v. Southern R. v. Hauer, 33 8. W. (Tex. Civ. App.) Co., 28 Ky. L. Rep. 429, 89 S. W. 1010. 502, 2 L. R. A. (N. S.) 469. 198. Grannis v. Chicago, St. P. 195. Cudahy Packing Co. v. & K. C. R. Co., 81 Iowa, 444, 46 N. Sedlack, 69 Kan. 472, 77 Pac. 102. W. 1067. 196. Price v. Richmond & D. 199. Denver, T. & G. R. Co. v. R. Co., 38 S. C. 199, 17 S. E. 732. Simpson, 16 Colo. 55, 26 Pao. 339, 197. Missouri, K. & T. R. Co. 25 Am. St. Rep. 242. 398 Masteb and Sebvant. § 172 somewliat weak, permitting the draw bar to drop below those upon cars of equal height, did not render the appliance unsuitable. The cars coidd be coupled with care-^fo And in another case where the short bar was on a foreign car, that its suitableness and sufficiency was a question for the jury. ^"^ And still in another, where the draw bars were unusually short, that a verdict of negligence was justified. ^'"' It was also held that a raUroad company is not required to have all its cars and locomotives constructed after the same pattern. The law only requires that such cars, loco- motives and apphances shall be reasonably safe for the use to which they are put. That it was not negligence to use an engine the draw bars of which was too short to per- mit one of its cars to be safely coupled to or detached from an engine.^"' It was held in another case whether an engine so equipped was suitable for the work designed, was a question for the jury.^"* And in another that it was an unsuitable and defect- ive appliance. ^"^ And in another that a eoupUng apparatus upon a mail car in use for a long time, lower than upon other ear?, was a suitable appliance and not defective.^"* It was said with reference to short draw bars, which were not of a proper kind for a particular use, though proper for use in connecting ordinary draw bars, that appliances ought not to be so constructed that the slightest •200. Brewer v. Flint & P. M. M. R. Co., 68 Wis. 408, 17 N. W. R. Co., 56 Mich. 620, 23 N. W. 440. 124. 201. Chicago, R. I. & P. R. Co. 204. Lawless v. Connecticut V. Linney, 7 C. C. A. 656, 59 Fed. River R. Co., 136 Mass. 1. 45. 205. Be Lair v. Chicago & N. 202. Bennett v. Northern Pac. W. R. Co., 43 Iowa, 662. R. Co., 2 N. Dak. 112, 49 N. W. 206. Ft. Wayne, I. & S. R. 408, 13 L. R. A. 465. Co. v. Gildershoe, 33 Mich. 133. 203. Whitwam v. Wisconsin & See also Botsford v. Michigan Cent. R. Co., 33 Mich. 256. § 172 Sape Appliances. 399 indiscretion on the part of the operatives "would prove fa- tal. 2" And it was held in another case that the fact that the draw heads of two cars were of different patterns, one be- ing somewhat smaller than the other and requiring a smaller coupling link, in the absence of proof that suitable links were not provided, was not negligence.^"* Use of a car having a Miller platform and one having the ordinary couphng device in connection, was held not extra hazardous, it being impracticable to use the MiUer platform upon freight cars. ^"^ In another case it was held whether the use of the two in connection was negUgence was a question for the jury. ^" Crowbar. A crowbar being fit and suitable for the particular use, that some other appliance in the opinion of experts might have been more suitable, is immaterial. ^" Derrick. Where the contention was that the gudgeon pin used in a derrick, though new, was too small, the evidence beiag conflicting upon this point, it appearrag, however, it was of a kind used by many railroads for similar pur- poses, the question of neghgence was for the jury.^^* The question whether a derrick was one of proper construction and equipment, not being defective, was held one for the jmy. The contention was that the boom should have been rigged with two ropes instead of one."^ 207. Toledo, W. &. W. R. Co. 211. Wolf v. New Bedford V. Fredericks, 71 111. 294. Cordage Co., 189 Mass. 591, 76 208. Railroad Co. v. Henly, 48 N. E. 222. Ohio St. 608, 29 N. E. 575, 15 L. 212. Rickmond & D. R. Co. v. R. A. 384. Weems, 97 Ala. 270, 12 So. 186. 209. Toledo, W. & W. R. Co. 213. Kreigh v. Westinghouse, V. Asbury, 84 lU. 429. Church, Kerr & Co., 214 U. S. 210. Southern Pac. R. Co. v. 249, 53 L. Ed. 984, 29 Sup. Ct. Rep. Burke, 9 C. C. A. 229, 60 Fed. 704. 619. 400 Master and Servant. § 172 Emery wheel. That an emery wheel was kept in use which was cracked, and while not in use, but in motion it burst, justified a finding that it was defective and insufficient."* Guard rail. A guard rail to a loom being too long and hence becom- ing bent, permitting the shuttle to fly out, striking the operator, was insufficient."^ Handholds, absence of. A car is not insufficient or defective because not pro- vided with grab irons and handholds on the end of the car, where there are steps for brakemen constructed so as to answer the same purpose. ^^* Hook. Upon the conflicting evidence as to whether a hook was imsafe and improper for the use to which it was put, that question became one for the jury.^" Ladder. The duty of a raOroad company towards employees does not require it to furnish a stationary ladder or lad- ders with hooks for the use of firemen in chmbing to the top of an engine."* Locomotive, sloping tank. It is not neghgence to furnish a switch engine with a sloping tank and foot board at the rear, having two hand rails with a space between, instead of one hand rail ex- tending across the width of the tank. '" 214. Ide V. Fratoher, 194 111. 217. Keast y. San.a Tsabel SS2, 62 N. E. 814 G. M. Co., 136 Cal. 256, 68 Pae. 215. Chambers v. Wampanoag 771. Kills, 189 Mass. 529, 75 N. E. 218. McDoimell v. New York, 1093. N. H. & H. R. Co., 192 Mass. 538, 216. Dooner v. Deleware & 78 N. B. 548. H. Cadal Co., 171 Pa. St. 681, 33 219. Peirod v. Band, 27 C. C. A. Atl. 415. 361, 89 Fed. 988. § 172 Sape Appliances. 401 It was held, however, that failure to provide an ordinary- road engine with brakes was negligence, in the absence of evidence excusing it.^^° Oil box on cars. The Texas court held it was the duty of a railroad com- pany to keep the oil boxes on freight cars in proper condi- tion for use by brakemen as steps, from which to mount cars, where it was customary for brakemen to so use them. ^^^ Pulley block. NegUgence in this case was predicated upon an alleged improper and unsafe pulley block and fastenings. That it had an insufficient and dangerous gate or hinge; that it was liable to come open and it came open and allowed the cable within to escape, and that the chain fastening the pulley became unfastened by reason of an improper and unsafe chain hook which held the pulley block to the timbers. It developed at the trial that it was feasible, and generally the practice, when such pulleys were in use, to mouse the so called gate or hnk, that is, to tie down the Unk or gate with a piece of rope in such manner that it woidd not come open and allow the cable within to slip out. It was also feasible to mouse the other hooks. None of the hooks nor the gate were moused when the accident happened to an employee. Because of this fact, that a certain hook was not properly attached to the chain to which it held in place, or the chain which was placed around one of the timbers of the false work was not furnished with a suitable hook or was not moused, and as a result of the slacking of the cable, either one or all three of the hooks became detached, it was held whether the appliance was suitable for the work was a question for the jury."^ 220. Choctaw, O. & G. R. Co. v. Day, 118 S. W. (Texas Civ. V. HoUoway, 52 C. C. A. 260, 114 App.) 739. Fed. 458. 222. Costello v. Frankman, 97 221. Ft. Worth & R. G. R. Co. Minn. 522, 107 N. W. 739. 1 M. & S.— 28 402 Mastee and Seevant. §172 Rack for storage of lumber. A rack in a factory used for the storage of lumber fell when only partially filled, but had theretofore been used only for light lumber ; a finding that it was insvifficient was justified. ^^^ Reversing rod. A reversing rod which carried lumber from a saw had a broken handle, and an employee to pull the lumber back had to use his hands which came in contact with the gear- ing. The appUance was held defective and insufficient. ^^^ Ring. The general rule as to the master's duty in respect to the furnishing of appUances for use by servants, stated, and applied to a ring used in connection with a bucket in hoist- ing material from a shaft. The ring broke where it had been welded and it was alleged was not sufficient in its con- dition to stand the strain. It was a question for the jury whether the master was responsible for its defective con- dition. ^^* Ropes. A rope upon a vessel used in pulhng a loaded scow along side of a vessel, which broke from the unusual strain, injuring a seaman, was held insufficient for such use.^^* Where, temporarily, in an emergency, a rope was used for coupHng cars together in the absence of a draw bar upon a car, it was held under the circimistances, sufficient for the pxtrpose. *^' 223. Corbett v. American 226. The Persian Monarch, 49 Screen Door Co., 133 Mich. 669, Fed. 669. 95N. W. 737. 227. Tabler v. Hannibal & 224. Hendricks v. Lesure Lum- St. J. R. Co., 93 Mo. 79, 5 S. W. ber Co., 92 Minn. 318, 99 N. W. 810; Muirhead v. Hannibal & St. 1125, 100 N. W. 638. J. R. Co., 103 Mo. 251, 15 S. W. 225. Brazil Block Coal Co. v. 530. Gibson, 160 Ind. 319, 66 N. E. 882, 98 Am. St. Rep. 281. § 173 Safe Appliances. 403 Semaphore, location of. If a semaphore is so located that its "warning will be effective to prevent accidents, but for the unexpected fail- ure of the airbrakes, it is sufficient."* Ship. Ship owners are held to the strictest rule of diligence as to the sufficiency of the appliances furnished, other than those used in the prosecution of an ordinary voyage, such, for instance, as a steam winch and derrick for loading and unloading the cargo. The reason for this is seamen have not the means of judging for themselves or the option of leaving the emplojonent. A hook about which there was no latent defect, used in lowering a boat, was held not sufficient for the purpose."' Switch. The master furnishing a stub switch which is reasonably safe, when used in the manner intended, is not guilty of negligence because it is not so constructed as to be used or safe for an engine attempting to run through it from the opposite direction.^'" Wrench. Negligence cannot be predicated alone upon the finding of a jury that a certain kind of wrench used for tightening nuts was not safe or suitable. It must further appear that the master, in the exercise of ordinary care, ought to have known the kind furnished was not safe or suitable.^" § 173. Long use without accident. The New York court formulated a rule which has been applied in some cases in other states, and in other cases ignored, to the effect that when an apphance or machine, 228. Whalen v. Michigan Cent. P. & G. R. Co., 153 Mo. 380, 55 R. Co., 114 Mich. 512, 72 N. W. S. W. 108, 48 L. R. A. 399, 77 Am. 323. St. Rep. 721. 229. The Edith Godden, 23 231. Sterne v. Mariposa Corn- Fed. 43. mereial & Min. Co., 153 Cal. 516, 97 230. Grattis v. Kansas City, Pa«. 66. 404 Master and Sebvant. § 173 not obviously defective or dangerous, has been in daily use for a long time and has uniformly proved adequate, safe and convenient, its use may be continued without an imputation of negKgence.^'" Thus, where it was claimed that a gang plank, used for unloading freight cars, was defective because there were no hooks or spikes to hold it in place, and it appeared simi- lar ones had been in use for fifteen years; it was said, it cannot be stated as matter of law, that it was negligence to use such a tool. The defendant was using an appliance which experience had shown to be safe. The law did not require it to do more.^'' Hook connecting cable with car. This rule was applied where a hook used to connect a cable with a car, in some manner, while hauling ore from a mine, became displaced. It had served its purpose for more than a year without accident, and there was nothing to suggest that it was not suitable and safe for the piu*- pose.^'* And also where the siU of a switchstand extended over an embankment, and a brakeman was injured by his clothes becoming caught in his attempt to mount a car, and it did not appear that it had during the five years in use, caused other accidents, or that it was dangerous.^" Manner of fastening tank to frame work of tender. Where a tank was fastened to the frame work of a ten- der with only one bolt, and the design was for the use of two, and as a result of a collision the bolt broke permit- ting the tank to become detached at that point, it was held that the appliance was not defective, it appearing it had 232. Stringham v. Hilton, 111 G. T. R. Co., 99 Mieli. 212, 58 N. Y. 188, 18 N. E. 870, 1 L. R. A. N. W. 60. 483; Burke v. Witherbee, 98 N.Y. 234. Burke v. Witherbee, 98 662. N. Y. 562. 233. La Pierre v. Chicago & 235. Bivins v. Georgia Pac. R. Co., 96 Ala. 325, 11 So. 68. § 173 Sape Appliances. 405 been in use safely for a long time and found sufficient for the ordinaiy purposes for wMeli constructed.^" Long use without accident not conclusive. Where an appHanee used for lowering a bucket in a mine proved ineffective in the particular instance, and the rule stated by the New York court was urged as apphcable, it was said that the fact that no person had previously been injm-ed in descending the shaft was entitled to much weight, but it was not conclusive of the defendant's due care, especially in view of the evidence tending to show that the original efficiency of the brake had become im- paired.^" Rule not applied. Where, however, an employee who has no previous con- nection with operating an appUance, used for handhng railroad iron in a mill, was called to assist, and one of the apphances was so constructed by hooks and rings that in operating a crane it was disturbed, and the hook thrown out of the ring, causing the apphance to fall, thus injuring a workman, it was held that the manner of securing and connecting such appliance was in fact imsafe, and it was liable any day to become detached by a blow from the crane. To the argument that it had himg in the same manner for years without accident and . heref ore the em- ployer might rest upon the assurance that it was safe, it was said that such circumstance is only a matter of wonder- ment, and is an instance of how good luck will sometimes protect carelessness for long periods. ^'^ Where a nut on a shaft worked loose, and it appeared that it should have been so fastened that the friction would tighten it, it was held the appUance was unsuitable and defective of which defect the master was chargeable with knowledge. To the argument that it had been in use for several years and proved safe and therefore neghgence 236. Preston v. Chicago & N. 160 Mass. 125, 22 N. E. 631, 15 Am. M. R. Co., 98 Mich. 12S, 57 N. W. St. Rep. 176. 31. 238. Monaghan v. Pacific Roll- 237. Myers V. Hudson Iron Co., ing-Mill Co., 81 Cal. 190, 22 Pftc. 590. 406 Master and Seevant. §174 could not be imputed in continuing its use, it was said it liad been dangerous all the time.'''' The rule that when a machine, not obviously dangerous, has been in daily use for a long time and has uniformly proved safe and effectual, its use may be continued with- out imputation of negligence, which is properly applied where some particular device or pattern is compared to another deemed more safe, has no application to a defect- ive appliance. ^^^ § 174. Different kinds in use. It would seem that ordinarily, where there are different kinds of appUances in use, negligence cannot be charged in the selection of one rather than the other, where the one selected is suitable, safe and free from defects. The master's liabiUty is not founded upon error of judgment but on neghgence.^^^ 239. Columbia & P. S. R. Co. v. Hawthorne, 3 Wash. T. 353, 19 Pao. 25. 240. Silveira v. Iversen, 128 Cal. 187, 60 Pao. 687. 241. Wonder v. Baltimore & O. R. Co., 32 Md. 411, 3 Am. Rep. 143; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31, 36 N. B. 813. See also Frace v. New York L. E. & W. R. Co., 143 N. Y. 182, 38 N. E. 102; Flinn v. New York C. & H. R. R. Co., 142 N. Y. 11, 36 N. B. 1046; Sappenfield v. Main Street & A. P. R. Co., 91 Cal. 48, 27 Pao. 590; Kehler v. Sohwenk, 144 Pa. St. 348, 22 Atl. 910, 13 L. R. A. 374, 27 Am. St. Rep. 633; Nail v. Brown & Williamson, 150 N. C. 533, 64 S. E. 434. Negligence can- not be predicated on the use in a railroad yard of a road engine instead of a switch engine, the former being safe if prudently used. Fowler v. Chicago & N. W. R. Co., 61 Wis. 159, 21 N. W. 40. It was held, however, that evidence was admissible to show that a switch engine is more suitable for par- ticular work and more easily han- dled than a freight engine. Mis- souri Pac. R. Co. V. Lamothe, 76 Tex. 219, 13 S. W. 194. Doctrine appHed where a maul was selected for use, it appearing two kinds were in general use, one kind being much safer than the other. Dwyer v. Shaw, 22 R. I. 648, 50 Atl. 389. And also applied where the means used to raise a beam, in the con- , struction of a building, was by hand, and it was urged that it was negligence not to have used me- chanical appliances. PaoUne v. J.W. Bishop Co., 25 R. I. 298, 55 Atl. 752. It was held, however, a ques- tion for the jury whether the mas- ter was liable where he directed the use of concrete slate in constructing a roof. It broke when not suflB- oiently dry. William Grace Co. v. Larson, 227 lU. 101, 81 N. B. 44. § 175 Safe Appliances. 407 § 175. Adiustment of appliances. In the matter of the adjustment of appliances, it will be found that the rule prevailing in some states is not apphea- ble in other states. All the states have not the same nile in respect to the master's duty. In some, his duty in re- spect to his appliances, is regulated by statutory enact- ments. The doctrine of superior and subordinate prevails in some and not in others. Hence, to reconcile what ap- parently are conflicting determinations, reference should be had to the rule in the particidar state. It will be found also that where the same general rule prevails in some of the staites with respect to the adjustment of appKances and selection of parts or material, the foreman or super- intendent is considered a vice principal, while in others as to such acts he is but a feUow-servant. The prevailing doctrine in most of the states Is that the duty of the mas- ter to see that the machinery furnished for the use of his servants is reasonably safe does not extend so far as to require him to attend to the proper regulation of those parts which necessarily have to be adjusted in the course A railroad company removed a that whether the kind of an engine patent switch and replaced it with used, an eight wheeled instead what is termed a common switch. of a four-wheeled, was better The latter became misplaced, caus- adapted for the particular service, ing derailment of a train and in- was a proper question for the jury jury to an employee. It appeared as well as whether its use was neg- that a train will pass safely over a hgence. The doctrine was stated misplaced patent switch. The that such machinery must be made reason why the change was made as safe as skUl and care could make was that a car had been by the it. This broad doctrine was subse- force of the wind moved from the quently modified. [Nashville & D. side track on to the main track, R. Co. v. Jones, 9 Heisk. (Tenn.) threatening injury to passengers 27], and finally the doctrine as and employees. It was held there originally held and as modified was was sufl&cient reason for changing disapproved and the rule stated to the switch and the charge of negli- be that the master's duty in gence was not sustained. Piper v. respect to his appliances was that NewYorkC. &H. R. Co.,56 N. Y. of the exercise of ordinary care. 630. It was originally held [Nash- East Tenn., V. & G. R. Co. v. ville & C. R. Co. V. Elliott, 1 Coldw. Aiken, 89 Tenn. 245, 14 S. W. 1082. (Tenn.) 611, 78 Am. Dec. 506], 408 Mastee and Servant. §175 of their use and -with respect to the particular work to be done, and the adjustment of which is incident to the ordinary use of the machine. ^^'^ 242. Eioheler v. St. Paul Furni- ture Co., 40 Minn. 263, 41 N. W. 975; Lone Star Brewing Co. v. Wil- Ue, 52 Tex. Civ. App. 550, 114 8. W. 186; MeCampbeU v. Cunard S. Co., 144 N. Y. 552, 39 N. B. 637; Hogan v. Smith, 125 N. Y. 774, 26 N. B. 742; Cregan v. Mar- ston, 126 N. Y. 568, 27 N. E. 952, 22 Am. St. Rep. 854; Hudson v. Ocean SteamsHp Co., 110 N. Y. 625, 17 N. E. 342; Filbert v. Dela- ware & H. C. Co., 121 N. Y. 207, 23 N. E. 1104; Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787. The rule that the adjustment and adaptation of implements to the work in hand, according to its vary- ing needs belongs to the sphere of the servant and not to the master, was held not applicable to a hoisting apparatus, made up when complete of various parts. It was said: "Whatever the scope of that rule may be, it cannot under out deci- sions, apply, where the constinie- tion and setting up of the apparatus or machine ready for use, requires skill, judgment and knowledge of mechanical forces, in order to render it safe and suitable for the work to be done by servants. Par- lett V. Dunn, 102 Va. 459, 46 S. E. 467. Where a device used in un- loading vessels, consisting of parts tied together, became dangerous by reason of the negligent and unskil- ful manner in which they were tied by the servants who in common with others were engaged in unload- ing a vessel and an employee was injured while using it, it was held that as the negligence consisted in the manner of adjusting the appU- ance, it being otherwise perfect of the kind, in common use, the negU- gence was that of a co-employee of the injured servant. McCampbeU V. Cunard S. Co., 144 N. Y. 552, 39 N. E. 637. Though a, master is liable for failure to exercise ordi- nary care to provide reasonably safe machinery, he is not liable for unsafe conditions existing while the machinery is in process of erec- tion. This rule applied where an emery wheel exploded because of the improper arrangement of the pulleys, resulting from the fault of a fellow-servant of the plaintiff, the latter receiving injury before the machine was ready for operation. W. R. Trigg Co. v. Lindsey, 101 Va. 193, 43 S. E. 349. Where an employee tied two parts of an ex- tension ladder together so to hold the parts in place, the ladder being defective in that when it was ex- tended it woTild not catch and hold, and the rope used for such pur- pose broke injuring an employee, it was held the master was not lia- ble, but that the negligence was that of fellow-servants. Higgins v. Higgins, 188 Mass. 113, 74 N. E. 471. Where roUs used in the ma- chines in a wire miU, require chang- ing several times a day, and fre- quently those taken out require some fitting before being replaced, though this is done by men spe- cially employed for such purpose, and not by the workmen who §176 Safe Appliances. 409 § 176. Where employees' duty to select material from that furnished. Another exception to the general rule of the master's duty is where it is the duty of the employees to select and adjust the apphances from materials which the master has furnished. ''^^ The CaMfomia court, however, held that the exception to the general rule of the master's duty only apphed where the selection and adjustment devolves upon employees generally, one of whom is the person injiu-ed, and not where it devolves exclusively upon the foreman of the work.^** Apparatus for hoisting smoke stack. The master was held liable for the manner in which an apparatus was erected to be used in hoisting a smoke operated the macliines, and one of such workmen fails to replace a guard over the gearing, and an operator not noticing such omis- sion is injured by his hand becoming caught in such gearing, in such a case it was held the master was not liable. That such changes relate to the ordinary use of the machine which may be left to competent servants as a part of their work. Wosbigian v. Washburn & M. Mfg. Co., 167 Mass. 20, 44 N. E. 1058. 243. Wall V. Marshutz & Cant- reU, 138 Cal. 622, 71 Pac. 692; Kerrigan v. Market St. R. Co., 138 Cal. 506, 71 Pac. 621; Burns v. Sennett, 99 Cal. 363, 33 Pac. 916; Peschel v. Chicago, M. & St. P. R. Co., 62 Wis. 338, 21 N. W. 269; Loud V. Lane & Libby, 103 Me. 309, 69 Atl. 270, 19 L. R. A. (N. S.) 680. It was said with reference to plank furnished for the construc- tion of a temporary platform for use while sinking a shaft in a mine : "In furnishing plank for the plat- form, the defendant owed to the employees the positive duty of fur- nishing material of a kind reason- ably fit for the purpose for which it was to be used. If the planks furnished were of a species of wood which by its very nature was unfit for the pxu-pose for which it was used, having reference to defend- ant's usual plan of construction, of which unfitness plaintiff was una^ ware, he was entitled to recover. If, however, the timber furnished was of a suitable species, and sufS- cient sound planks were furnished, the defendant would not be liable for mistakes or neghgence in selec- tion, since the employees making such selection would be feUow- servants of the plaintiff. Risk v. Iron Cliffs Co., 163 Mich. 523, 128 N. W. 747. 244. WaU V. Marshutz & Cant- rell, 138 CaL 522, 71 Pac. 692. 410 Mastbb and Servant. § 176 stack, where erected close to iron shutters on a building, which feU upon a workman, caused by the tackle used becoming entangled with a shutter. ^^ Appliance for unloading cars. It was stated when the master in the work of unload'ng cars from vessels has furnished his servants with safe and suitable appliances to be set up by them for unloading a particular vessel, he is not hable to one of them for the negligence of a co-servant in setting up such appliances. This rule was applied where the injured servant was employed after the appUance was set up.^^* Belt connections. A claim that machinery in a factory should be stopped while belt connections between some of the smaller shafts are being made was held to have been unreason- able. ^^^ Belt tightener. The master was held negligent in directing an employee to assist in adjusting a belt tightener in his planing mill, without providing proper manholds or ladders. ^^* It might be said that proper means and appliances had not been furnished to enable the employee to make the adjustment. Chains holding derrick. The rule, or rather the exception to the general rule, that the master's duty to furnish reasonably safe appliances, does not extend to mere transitory risks, was not appUed where side chains holding a derrick were placed too high and an employee was directed by the foreman to remedy the defect. 2 ^» 245. Leonard v. Kinnare, 174 Lumber Co., 48 La. Ann. 950, 20 lU. 532, 51 N. E. 688. So. 221. 246. Loud V. Lane & Libby, 248. Lee v. Wild Rice Lumber 103 Me. 309, 69 Atl. 270, 19 L. R. Co., 102 Minn. 74, 112 N. W. 887. A. (N. S.) 680. 249. Frazer v. Blanohard, 83 247. Henry v. Brackenridge Vt. 136, 73 Atl. 995, 75 Atl. 797. § 176 Safe Appliances. 411 Guard rail about machines. Where the master provided a guard rail about a machine to lessen the danger of the operator's hands being drawn in, it was said, the servant may, to some extent at least, rely upon it, and in such case, if the guard is not properly adjusted and injury is caused thereby, the master may be hable. Whether properly adjusted was held a question for the jury. ^^° Fastening of guy ropes. Where an employee was injured by the fall of a derrick which was caused by the pulling up of the post to which the guy ropes were fastened, it was held that such fasten- ing was not a part of the appliance itself; that such means of fastening, though directed by the superintendent, was the act of a feUow-servant. ^^^ Location of blow off pipe. Whether the manner of the location of a blow off pipe of a steam boiler and the method of discharging water and steam therefrom, was negligence on the part of the master, was held a question for the jury. A practically inexperienced employee having been injm-ed in operating the pipe, when obstructed, in opening wide the valve by which steam was forced out in great volume, resulting in his death. 2^ 2 Platform for adjustment of appliance. It seems to have been held that whether the selection of materials for the adjustment of an appliance, such as a platform extending from a wharf to a vessel upon which to convey material to be loaded in the vessel, was a duty personal to the master or one he might delegate without liabihty for its negligent performance to a servant, was a question for the jury, and they having found it to be the 250. Fronk v. J. H. Evans 510. See also Howard v. Hood, 155 City Steam Laundry Co., 70 Neb. Mass. 391, 29 N. E. 630. 75, 96 N. W. 1053. 252. Zoersh v. Flambeau Paper 251. McGinty v. Athol Reser- Co., 134 Wis. 270, 114 N. W. 485. voir Co., 155 Mass. 183, 29 N. E. 412 Master and Seevant. § 176 master's personal duty, he was held liable. The platform was constructed imder the direction of the defendant's foreman by some laborers of the defendants, called from their work of stowing stone posts in the vessel, aided by some of the vessel's crew. Such men selected the ropes which broke, from a quantity of ropes on board the vessel, but the plaintiff had nothing to do with such selec- tion. "3 Racks built upon cars. The exemption of the master from liability in the matter of the adjustment of appUance, was not extended to racks built upon cars for the purpose of carrying refuse material from mill s, where so constructed or adjusted as to permit pieces of wood to faU upon the track. A hand car was derailed by contact with such a piece of wood and a section man thus injured."* Setting up grindstone. Also for the manner of setting up and adjusting a grind stone in a miU by an employee. The setting up was con- sidered a part of the appUance furnished. The servant whose injuries were caused by the bursting of the stone had nothing to do with the setting up of the stone. ^" Windmill and water tank, adjustment of detached parts. In the construction of a windmill and water tank, the frame work of the mill feU by reason of a post insecurely set in the ground giving way, to which was fastened a rope used in hoisting the frame work. It was held that the whole apparatus used for hoisting could not be considered a single machine which the defendant was bound to fiu*- nish adjusted and in position to do the work, but the plac- ing and adjustment of the detached apphances was a part of the work to be done. The injury which an employee sus- 253. Donnelly v. Booth Bros, qnette R. Co., 137 Mich. 482, 100 & H. I. G. Co., 90 Me. 110, 37 Atl. N. W. 748. 874. 255. Hall v. Emerson-Stevens 254. McLean v. Pere Mar- Mfg. Co., 94 Me. 445, 47 Atl. 924. § 177 Safe Appliances. 413 tained by the falling of the frame work was therefore not caused by any f ailtire to furnish proper and safe appUances but the negligence of the foreman ia the management of such appHances. ^" § 177. Reasonable time to remedy defect. Unless there has been reasonable time and opportunity to remedy a defect in apphances after discovery thereof, the failure so to do cannot be neghgence. Mere knowl- edge without opportunity to act upon it would not con- stitute neghgence. ^" Where a train was inspected before starting on a trip and found to be in proper condition, yet at a station about ten miles from where the injury occurred a brake- man discovered that a draw head of a flat car was defect- ive, and so informed the conductor at the next station, and in attempting to make the couphng by order of the conductor he was injured by reason of such defect, it appearing there was no workshop between the starting point and such station, it was held error to submit to the jury the question of defendant's neghgence."* Whether duty to repair in specified time if warning is given. A raUroad company whose track is broken, without its fault, is under no obhgation to its employees to repair it in a specified time, if it duly warns them of the defect. ^^' Where, however, it appeared that a promise had been made to a motorman to repair a defect in the track, and 256. Pesotel v. CHcago, M. & Pavey v. St. Louis & S. F. R. Co., St. P. R. Co., 62 Wis. 338, 21 N.W. 85 Mo. App. 218. Contra, Franck 269. V. American Tartar Co., 91 App. 257. Seaboard Mfg. Co. v. Div. 571, 87 N. Y. Supp. 219. Woodson, 94 Ala. 143, 10 So. 87 WUson V. Louisville & N. R. Co. 85 Ala. 269, 4 So. 701; Indianapolis B. & W. R. Co. V. Flanigan, 77 lU. 365; Kansas City, M. & B. Co. v Webb, 97 Ala. 157, 11 So. 888 United States Rolling Stock Co. v, Wier, 96 Ala. 396, 11 So. 436 258. Louisville & N. R. Co. v. Law, 14 Ky. L. Rep. 850, 21 S. W. 648. 259. Henry v. Lake Shore & M. S. R. Co., 49 Mich. 495, 13 N. W. 832. See also St. Louis, I. M. & S. R. Co. V. Mogart, 45 Ark. 318. 414 Masteb and Seevant. §177 it was urged that there was not suffieient time between the time the defendant had notice of the defect and the injury to the employee, to have repaired the track, it was said, if it could not be repaired immediately so as to make it safe, its use should have been discontinued."" It was held that an employee engaged in blocking up a turn table, the supports of which had become decayed, for cars to pass over it, injured by the negligence of the foreman permitting a car to run against the turn table waU, could recover from the master. That it was the latter's duty to have repaired the turn table. "^ It .s evident warning was not required as the employee had notice; and that the ground for recovery was the negligence of the foreman, the proximate cause of the injury. It was held negUgence on the part of the owners of a furnace to continue to operate it after knowledge of defects even for a few hoxirs, when the defect was to be remedied. ^^^ It is thus impliedly, if not directly held that the mas- ter's duty in the premises would not have been met by proper warning. That their duty was absolute to repair immedately. 260. Hams V.Hewitt, 64 Minn. v. Bailey, 115 S. W. (Tex. Civ. 54, 65 N. W. 1085. App.) 601. 261. Missouri, K. & T. R. Co, 262. National Steel Co. v. Lowe, 62 C. C. A. 229, 127 Fed. 311. § 178 Safe Appliances. 415 III. CHARACTER OR KIND AS QUESTION FOR JURY. Sec. Couplings. 178. General rule. Locomotive engines. Rule not recognized in Min- Loose pulley. nesota. Push pole for moving cars. Apparatus for conveying Machine of new design. steam. Safeguards. Bridges. Switches. Capstan. Tracks. Chock on pile driver. Turn tables. § 178. General rule. It seems to be difficult for some courts to avoid dic- tating or having jurors d ctate what kind of appliances a master shall use or ought to have used, and thus, pre- sumedly without knowledge or experience, set up a stand- ard of their own. A moment's reflection ought to convince the mind that such a doctrine would be very unwise, if not unsafe, and lead to a variety of judgments with respect to the particular appliance, as one court or jury might deter- mine that one kind should have been used, and another a different kind, and still another one not in accord with either. It is submitted that such question is entirely removed from the judgment of courts and juries. That to adopt or enforce it would conflict with the well settled rule that a maniifacturer may choose the kind of machinery he desires to use, be it old or new, and may control his business in his own way, provided he does no unlawful act. If the machinery is sound, weU made and kept in re- pair, he will not be hable for an accident occurring to an employee when the only ground alleged is that there is a better and safer kind in use for the same purpose. Em- ployers are only bound to use ordinary care to protect an employee against danger not within his knowledge or observation. ^** 263. Richards v. Rough, 53 Mich. 212, 18 N. W. 785. 416 Masteb and Sbbvant. § 178 The comparative merits of macMnery of different kinds, whether as to safety or utihty, are questions most difficult to solve, and to say it shall be left to a jury to determine in a given case what kind an employer should use, would be imposing a duty upon a court and an injus- tice ahke intolerable.*** A coiirt, in referring to this subject, declared that in the absence of defective construction or of negligence or the want of care in the reparation of machinery furnished by him, the master incurs no liability for its use. He is under no obligation to discard a machine or part of a machine and supply its place with something different or that which, in the opinion of others, is safer. He cannot be required to provide himself with other machinery or with new apphances nor elect between so doing and the imposition of damages for injury resulting to a servant from the mere use of an older or different pattern. **^ It was truly said by a learned court: "Except to make another man's wiU for him after death, there is noth- ing which a jury is more apt to think it can do better than the owner, especially under the stress of a claim for dam- ages, by one who has been injured, than to say how another man's business ought to have been managed, and nothing in which juries should be held strictly and unflinchingly within their proper province."*** And by the same court: "Jurors must necessarily de- termine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in ef- fect dictate the custom or control the business of the community." **' In the main, the state must leave every man to manage his business in his own way. If his way is not the best, nevertheless if others with fuU knowledge of what his way 264. Richards v. Rough, 63 Pa. St. 348, 22 Atl. 910, 13 L. R. A. Mich. 212, 18 N. W. 785. 374, 27 Am. St. Rep. 633. 265. Sweeney v. Berhn & J. 267. Titus v. Bradford, B. & Envelope Co., 101 N. Y. 520, 5 K. R. Co., 136 Pa. St. 618, 20 N. E. 358, 54 Am. Rep. 722. Atl. 517, 20 Am. St. Rep. 944. 266. Kehler v. Schwenk, 144 § 178 Safe Appliances. 417 is, see fit to co-operate witli him in it, the state cannot interfere to prevent, nor punish him in damages when the risk his servant voluntarily assumes, is followed by injuries. ^®* Rule not recognized in Minnesota. It was held that while an employer is not boxmd to fur- nish for his workmen the safest and best apphances and machinery in general use, and it is sufficient if he fur- nishes that which is reasonably safe, that this is a question for the jury, and, in determining it, they may consider whether there are well known devices in general use.which if adopted, would have reduced the danger to the em- ployee. ^^' Apparatus for conveying steam. The evidence was insvifficient to show that the master was negUgent in the furnishing or use of an apparatus for conveying steam into a beater in a paper mill. The apparatus was simple in construction and if properly used, not dangerous. It was said: "To find that the defendant failed in. its duty to the plaintiff in not providing a fasten- ing, when it was a simple matter to use the appUance pro- vided, that no injury could happen with the apparatus as it was, without a fastening, would be more than a jury ought to be allowed to do.""" Bridges. Where a brakeman was Mlled by contact with the sides of a bridge, while he was iu the act of ascending a car, it was held that the defendant was not guilty of neghgenee which caused his death. To the charge that the bridge was too narrow for employees to safely perform their work, it was said: The bridge was sound and safe for the passage of trains, without defect, in good repair; whether it was 268. MicMgan Cent. R. Co. v. 270. Alvey v. American Writ- Smittson, 45 Mich. 212, 7 N. W. ing Paper Co., 184 Mass. 234, 68 791. N. E. 333. 269. Monsen v. Crane, 99 Minn. 186, 108 N. W. 933. 1 M. & S.— 27 418 Masteb and Servant. § 178 oiirteen or twenty feet wide was a matter of no concern to the brakeman, so long as he was not required to occupy a place of danger in the discharge of duties while passing over it, and this he was not required to do. A railroad company cannot be required to condemn and remove a bridge which is without fault in its plan or default in its construction while it is in good repair and safe for the passage of trains, simply because some engineer shall pronoimce it not as good or convenient as some other kind. Railroad companies must be allowed to use their own discretion as to the kind of bridge they will use, and when and under what circumstances they wiU remove and replace them when they are safe. Any other rule would be unjust and oppressive. As between employers and em- ployees, it is imquestionably the duty of a railroad com- pany to provide a track and equipments which shall be reasonably safe, but this does not oblige the company to make use of the latest improvements or to change the structures upon its road to conform to the most recent or advanced improvements and ideas upon such subjects; neither does good railroading require any such thing."! Capstan. A jury were permitted to find that a capstan or winch used in pulling logs from a pile, into the water, was not a reasonably safe appliance for such work, without a guard to hold the cable in place. The cable frequently came off the capstan to the knowledge of the master, and hence it might be reasonably anticipated that injury might result.'''^ Chock on pile driver. It was held a wooden chock was a useful and necessary appliance upon a pile driver to prevent the fall of a heavy 271. Llick V. Flint & P. M. R. 272. Drapeau v. International C»., 67 Mich. 632, 35 N. W. 708. Paper Co., 96 Me. 299, 52 Atl. 647. § 178 Safe Appliances. 419 piece of iron called a follower, and it was negligence on the part of the master in failing to supply it."' Couplings. It was held a proper question for the jury whether the coupling apparatus was imperfect as to the kind, or rather whether proper care had been exercised in sup- plying such for use. It appeared, however, the company were changing such appliances for another kind considered more safe.^^* Locomotive engines. A railroad company has the right to determine for itself how powerful its engines shall be at any place and for any purpose, and it is not bound to furnish to its employees an engine suitable and adequate in power to every emer- gency. The fact, therefore, that an accident to an employee might have been avoided by the use of more powerful engine, does not make it Uable, and this whether the engine was originally of small power or its power had been reduced by some defect.^" Whether a foot-board upon a switch engine was not a reasonably safe appUance, by reason of its being con- structed so that it slightly slanted to the front, was held to be a proper question for the iwcjj'"' Loose pulley. Whether the duty of the master is fuUy performed in keeping machinery at rest by providing a loose pulley, was held a question for the jury, there being evidence that from different causes a loose pulley is Uable to become fast."' 273. Swanson v. Oakes, 93 276. O'MeUIa v. Kansas City, Minn. 404, 101 N. W. 949. S. J. & C. B. R. Co., 115 Mo. 205, 274. Gibson v. Pacific R. Co., 21 S. W. 503. 46 Mo. 163, 2 Am. Rep. 497. 277. Szymanski v. Blumenthal, 275. Bajus v. Syracuse, B. & 4 Pennew. (Del.) 511, 56 Atl. 674. N. Y. R. Co., 103 N. Y. 312, 8 N. E. 529, 57 Am. Rep. 723. 420 Masteb and Servant. §178 Push pole for moving cars. Whether a pushing pole, used to push ears by being placed diagonally from the engine to a car, was a rea- sonably safe and suitable instrument for the purpose without a handle, was held to be a proper question for the jury."* Machine of new design. Where an employee in a furniture factory was injured by a knife flying out of a machine of a new design, in- vented by one of the managers, when first used, which machine differed from other machines in the method of holding the knives, it was held that whether it was a reasonably safe implement and properly designed was a question for the jury. "' Safeguards. It was held that whether a gate might not have been put up to guard employees, some such being minors, against coming in contact with machines having exposed gearing, or whether such machines ought to have been located differently, were improper questions for the jury. ''"' Where an employee in a saw mill was injured while operating a saw, by a board being thrown from the saw against him, and the contention was that the master failed in his duty to provide some guard or protection which would prevent such an accident, after stating that the master's duty was controlled by general usage in the business, and that this did not sufficiently appear, it was said : It will not answer to submit to a jury the question of the neghgence of the master upon opinions of experts stating what ought to have been provided, and to charge one with negligence for failure to provide accordingly. It is error to submit to a jury the question whether the master should have employed the device, in the absence 278. Philadelphia & C. R. Co. Furniture Co., 67 Mich. 167, 34 N. V. Keenan, 103 Pa. St. 124. W. 541, 11 Am. St. Rep. 573. 279. Marshall v. Widdicomb 280. Rock v. Indian Orchard MiEs, 142 Mass. 522, 8 N. E 401. § 178 Sape Appliances. 421 of sufficient evidence of general usage; for jurors are not at liberty to charge a duty upon the master according to their own notions of what was proper under the circum- stances nor upon the opinion of experts of what was desir- able and prudent. ^^^ Switches. Where the evidence as stated by the court showed that in the construction of a spht switch the rails could be set within two and one half inches of each other, and the dan- ger complained of avoided, and that in fact they were set about three and three-fourths inches apart, and thus were more likely to catch the foot of an employee, it was held that the question of neghgenoe on the part of the defend- ant in the method of constructing the switch was proper for the jury, and their verdict against the defend- ant was approved. ^*^ It was held by another court that the proper throw necessary for a split switch in railway construction, is an engineering proposition to be determined by properly qualified engineers, and the verdict of a jury or the opinion of judges cannot be substituted therefor.^*' And by another that the location of a switch stand in a railroad yard is a part of an engineering scheme in the laying out of the yard, which, in the absence of manifest errors in the construction, patent to an ordiuary observer, does not involve a question of negligence for the jury.''** 281. Mississippi River Logging the business of the community." Co. V. Schneider, 20 C. C. A. 390, 282. Brooke v. Chicago, R. I. 74 Fed. 195. The thought was well & P. R. Co., 81 Iowa, 504, 47 N. W. expressed in Titus v. Bradford, B. 74. & K. R. Co., 136 Pa. St. 618, 20 283. Dolge v. Northern Pac. Atl. 517, 20 Am. St. Rep. 944: R. Co., 107 Minn. 242, 119 N. W. "Jurors must necessarily determine 1066, 26 L. R. A. (N. S.) 600. the responsibility of individual con- 284. Chicago, M. & St. P. R. duct, but they cannot be allowed to Co. v. Riley, 76 C. C. A. 107, 145 set up a standard which shall in ef- Fed. 137. feet dictate the customs or control 422 Master and Servants. "^ 178 Tracks. Where the charge of negligence was the failure to prop- erly ballast a side track, it was said: It is not within the province of courts and juries to prescribe the manner of using side tracks or the character of the appliances which an employer may use, by verdicts and judgments which disregard an employer's right to conduct his business in the manner usual with well regulated railroads and as good raihoading requires. It woidd seem from a review of the authorities that we may deduce the principle that obvious imperfections in methods or machinery existing at the time of the emplojrment cannot be made the basis of liabiUty in favor of an employee who suffers injury in the course of his employment, for the reason that the master has a right to use imperfect methods and tools, and to ask others to enter his employ to aid him in such use, and that in so doing he does not undertake to insiu-e the employee. ^^* There is no rule of law to restrict raihoad companies as to the curves they shall use in their freight stations and yards, where the safety of passengers and the public is not involved. The engineering question as to the curves pro- per to be made in the track of a railroad within such places is not a question to be left to a jury to determine. ^'^ Nor is it proper to submit to a jury the question whether a side track is properly constructed. 2" Yet where an engineer upon a railroad constructed along the foot of a mountain range was killed by the derailment of his engine by reason of gravel on the track, which during a storm had washed down the mountain side through a natural gully, there being no culvert for its escape under the track, it was held that the question of negligence in not constructing a culvert at the place was 285. Ragon v. Toledo, A. A. & M. R. Co., 122 U. S. 189, 30 L. & N. M. R. Co., 97 Mich. 265, Ed. 1114, 7 Sup. Ct. Rep. 1166. 56 N. W. 612, 37 Am. St. Rep. 336. 287. TwitcheE v. Graad Trunk 286. Tuttle v. Detroit, G. H. R. Co., 39 Fed. 419. § 178 Safe Appliances. 423 one for the jury to determine on tlie evidence, as to the construction of the road and the formation of the land. ^^'* Turn tables. Where a railroad company located its turn table close to the track upon which engines were accustomed to move, and subsequently the company put in use larger en- gines, which when being tm-ned upon the table were liable to be struck by passing engines, and an employee while engaged in turning one such was injured by a passing engine striking the one he was tm-ning, it was said (refer- ring to the larger engine) that if this rendered the operating of the turn table dangerous to the employee, it was the duty of the company to have made such oorrespondiag changes in the track and turn table as would have rendered the handling of the larger engines reasonably safe to the employee. The general principle of law is that where a servant is employed on machinery from the use of which danger may arise, it is the duty of the master to take due care and to use aU reasonable means to guard against defects from which increased or unnecessary danger may occur. It was held a question for the jury whether there was negligence in the construction and contiaued use of the track and turn table. ^^^ 287a. Union Pae. R. Co. v. 1114, 7 Sup. Ct. Rep. 1166, dis- O'Briem, 1 C. C. A. 354, 49 Fed. tinguislied. 538; Tuttle v. Detroit, G. H. & M. 288. Lake Shore & M. S. R. Co. R. Co., 122 U. S. 189, 30 L. Ed. v. Fitzpatrick, 31 Ohio St. 479. 424 Mastee and Servant. IV. SAFEGUARDS AND PRECAUTIONS. Sec. 179. Whether duty to safeguard appliances is absolute. 180. Guarding machinery in gen- eral. 181. Effect of custom. 182. General use as a test. 183. Different rule in some juris- dictions. 184. Set screws; failure to guard. 185. Not a duty when guard would not be a protec- tion. 186. Duty to guard where young children exposed. 187. Where guard or guide essential to proper performance of work. 188. Attachment placed by serv- ants for their own con- venience. 189. Guard provided but not used. 190. Removal of hood where not used for protection of operatives. 191. Machinery not near employee. 192. Illustrations as to safeguards. Blocking frogs. Blocking an appliance to keep it stationary. Blocking guard rails. Cable, precautions to pre- vent falling. Boxing of shafts. Cars, fenders upon front. Cars without foot boards. Cars without sand boxes. Cog wheels exposed. Conveyor without platform. Cocker, safety valve on. Cow catcher on engine. Elevators. Glass tube. Sec. King pin. Lever, safety device looking. Guards on machine not used by injured servant. Lights. Opening in drum uncovered. Railing on log deck. Railing to pit. Railing on tender. Saw, guarding. Signal lights. Switch light. Switches. Locks. Tank cars, providing han- dles on. Tell tales. Threshing machine. Un- covered bevel wheel and cogs. Track; guard rail on curve at foot of steep grade. Trap door. Trenches. Wires, boxing. 193. Statutory regulation and fac- tory acts. Indiana. Iowa. Kansas. Kentucky. Massachusetts. Michigan. Minnesota. Missouri. New Jersey. New York. Ohio. Oregon. Pennsylvania. Rhode Island. Washington. Wisconsin. §§ 179, 180 Sapb Appliances. 425 § 179. Whether duty to safeguard appliances is absolute. It would seem upon principle that the duty of the mas- ter in the abstract would not require the adoption of safety appliances, if the riole be strictly adhered to that he may use such appliances as he may see fit, whether old or new, provided they are free from defects, and reasonably safe when prudently used. Of course this statement elim- inates the doctrine of assumed risk, and the duty of instruction and warning of dangers not obvious. Some courts, however, do not in strictness follow this rule, and hold, in particular cases, that neglect to safeguard appli- ances is negligence per se or a question for the jury, on the ground that such apphances without safeguards are not reasonably safe. Much confusion therefore results, mak- ing a law with reference to each particular case and not dependent upon principle, which might be avoided by a strict apphcation of the doctrine of assumed risk and en- forcement of the duty on the part of the master of instruc- tion and warning, or, as has been done in many states, by creating a positive duty to safeguard by legislative enact- ments. Some employments are inherently dangerous and whether such danger shall be incurred ordinarily rests in the volition of an employee having knowledge of it. The text writer, in view of the diverse holdings of the courts, cannot state a rule applicable to all cases, if in fact to any, as to the master's duty to safeguard his apphances. The best he can do is to state what courts have held in particular cases in respect to particular appliances, and the condition attendant upon their use. In fact, the law upon the whole subject has largely drifted into that of judicial precedents. § 180. Guarding machinery in general. Courts have expressed the doctrine as contended for in the foregoing statement. Thus it was held that a master owes a servant no duty to guard machinery where the 426 Mastee and Sebvant, § 180 servant knew there was no guard when lie entered the employment. ^^^ Also that it was not negligence to faU to guard ma- chinery, in the absence of a statute requiring it, and in the absence of a custom to guard machinery of that char- acter, ^s" And that a machine is not defective because it contains revolving cogs not covered.^" It was held to be improper to permit evidence to go to the jury that machinery could be fixed at trifling expense. It was said it is the legal right of every person to carry on a business which is dangerous either in itself or in his manner of conducting it, if it is not unlawful and inter- feres with no right of other persons. ^'^ It was also held that neglect or omission to fence ordi- nary machinery having gearing and cog wheels used in a business is not of itself sufficient to charge the master with liability for an injury to a servant which was pre- ventable by the exercise of such a precaution. ^'^ The true doctrine was most clearly expressed, and its reasons, in a leading case, as foUows: "If a boy under- takes to work upon a dangerous machine, understanding the danger, and is injured, the employer is not liable there- for, although the machine would not have been dangerous 289. Saxe v. Walworth Mfg. Mass. 153, 36 N. E. 789; Mo Co., 191 Mass. 338, 77 N. E. 833, Guerty v. Hale, 161 Mass. 61, 36 114 Am. St. Rep. 613. N. E. 682; Hale v. Cheney, 159 290. Walters v. Wolverine Port- Mass. 268, 34 N. E. 255; The land Cement Co., . 148 Mich. 315, Maharajah, 40 Fed. 748; Townsend 112 N. W. 113. V. Langles, 41 Fed. 919; The 291. Wilson v. Massachusetts Serapis, 2 C. C. A. 102, 51 Fed. 91 Cotton MiUs, 169 Mass. 67, 47 N. [reversing 49 Fed. 393] ; Schroeder v. E. 506. Michigan Car Co., 56 Mich. 132, 292. Coomhs v. New Bedford 22 N. W. 220; Rock v. Indian Or- Cordage Co., 102 Mass. 572, 3 Am. chard Mills, 143 Mass. 522, 8 N. E. Rep. 506; Hayden v. SmithviUe 401; Cowett v. American Woolen Mfg. Co., 29 Conn. 548. Co., 97 Me. 543, 65 Atl. 494; 293. SuUivan v. India Mfg. Co., Guedelhofer v. Emsting, 23 Ind. 113 Mass. 396; Tinkham v. Sawyer, App. 188, 55 N. E. 113; Journeaux 153 Mass. 485, 27 N. E. 6; Rooney v. E. H. Stafford Co., 122 Mich, V. Sewall & Day Cordage Co., 161 396, 81 N. W. 259. § 181 Safe Appliances. 427 if guards had been used." The reasoning of the court was that the machine was dangerous only because there was danger in working upon it, and if in fact it was dangerous, it was immaterial that the danger might have been averted by appliances protecting against it. The defend- ants are not liable because they used a dangerous machine but because they employed the plaintiff to use it in igno- rance of the danger. If the plaintiff undertook the work knowing the danger, the defendants are not liable, although they might have prevented the danger by guarding against it. If the plaintiff did not know the danger, proof that the defendants could not have guarded against it wotdd be no defense. ^^^ § 181. Effect of custom. Some force is given in some of the cases to the question of custom in respect to guarding appliances, and they seemingly hold that if it is customary to guard particular appliances it may be neghgence to fail to do so. Thus, where negligence was charged in not covering a belt which supplied motive power to a machine, it was held, in the absence of proof showing it was usual to inclose such belts, no duty devolved upon the master to cover it. It was said the ground of hability is not danger but negli- gence, and the test of neghgence is the ordinary usage of the business. ^'° And where the evidence was to the effect that it was not usual to box or fence machinery located as was the one in question (six or seven feet above the floor) the failure to box or fence it was not neghgence. ^'* It was said that where cog wheels and their gearing in connection with which an injury is received are of the usual and familiar type, with nothing pecuhar or dangerous 294. Gilbert v. Guild, 144 Mass. 860. See also Young v. Burlington 601, 12 N. B. 368. Wire Mattress Co., 79 Iowa, 415, 295. Ford v. Anderson, 139 44 N. W. 693; Maekin v. Alaska Pa. St. 261, 21 Atl. 18. Refrig. Co., 100 Mich. 276, 58 N. 296. Sanborn v. Atchison, T. & W 999. S. F. R. Co., 35 Kan. 292, 10 Pac. 428 Masteb and Seevant. § 182 about them, and in plain sight and open to the observation of employees who are not required to perform any duty within three feet of them, neghgence cannot be predi- cated upon the failure to guard them with a hood. ^" It was also held that there is no positive duty resting upon the master to box the gearing of his shafts or ma- chines, where such parts are not usually boxed or guarded in well conducted mill s, though such extra precaution may render them more safe to employees.^'* § 182. General use as a test An employee in a shop was injured by a stick being thrown back from a circular saw. He was passing around the saw at the time carrying boards. It was charged that the employer was negligent in not informing him that the saw was dangerous. This was said to be preposterous. It was also charged he was negUgent in not providing a spreader. This was held without merit, as the testimony showed such an attachment was not in general use, and there was no general agreement among mill owners or practical sawyers that it was a desirable or useful safe- guard. It was said it is not enough that some persons regard it as a valuable safeguard. The test is general use. 299 Where it was alleged that a machine could have been made more safe by providing a contrivance to prevent motion in the machine while the employer's hand was in danger, and it appeared that other patterns of machines were in use that had attachments for such purposes, it was held that as long as the machine was not defective in con- struction or out of repair, no obligation rested upon the master to make the machine more safe for use by an experienced employee, by the addition of safeguards. '"'' 297. Cunningliam v. Bath Iron Lumber & T. Co. v. Mooney, 4 VVorks, 92 Me. 501, 43 Atl. 106. Ariz. 366, 42 Pac. 952. 298. Wabash Paper Co. v. 300. Sweeney v. Berlin & J. Webb, 146 Ind. 303, 45 N. E. 474. Envelope Co., 101 N. Y. 520, 5 299. Delaware River Iron Ship N. B. 358, 64 Am. Rep. 722. See Building Works v. NuttaU, 119 Pa. also Cagney v. H. & St. J. R. Co., St. 149, 13 Atl. 65. See Arizona 69 Mo. 416. § 183 Sape Appliances. 429 § 183. Different rule in some jurisdictions. Other courts held that failure to safeguard particular appUanees is negUgence per se, or that the master's duty in this respect is to be determined by the jury. ^"^ It was said that the omission to cover cogs and gearing in a saw mill, where it coidd be done at trifling expense and where such appUances were located near to the place where minor servants were required to do their work, ren- dered the place of work to them unnecessarily dangerous, and was negligence.'"^ An examination of the cases shows, however, that the principal questions involved were those of assumption of risk and instruction and warning.'"' It was held that an instruction to the effect that if a counter shaft or a loose pulley or a covering for a saw, running naked, was a proper and reasonable safeguard for employees, defendant's failure to provide it was negli- gence, was correct.'"* 301. Buehner v. Creamery See Wheeler v. Wasson Mfg. Co. Package Mfg. Co., 124 Iowa, 445, 135 Mass. 294. Duty to guard is 100 N. W. 345, 104 Am. St. Rep. ordinarily question for jury. Egan 354; Myers v. Concord Lumber v. Sawyer & A. Lumber Co., 94 Co., 129 N. C. 252, 39 S. E. 960; Wis. 137, 68 N. W. 756. American Tobacco Co. v. Strick- 302. Nadau v. White River Lum- ling, 88 Md. 500, 41 AtL 1083, 69 bar Co., 76 Wis. 120, 43 N. W. 1135, L. R. A. 909; Erickson v. North- 20 Am. St. Rep. 29. See also Fore- west Paper Co., 95 Minn. 356, 104 man v. Eagle Rice Mill Co., 117 La. N. W. 291; CarUn v. Kennedy, 97 227, 41 So. 565. Minn. 141, 106 N.W. 340; Johnson 303. Such also were the prin- V. St. Paul GasHght Co., 98 Minn, cipal questions in Roux v. Blod- 612, 108 N. W. 816; Ames & Frost gett & D. Lumber Co., 94 Mich. Co. V. Strachurski, 146 111. 192, 34 607, 54 N. W. 492, and King v. N. E. 48; WuotiUa v. Duluth Lum- Ford River Lumber Co., 93 Mich, ber Co., 37 Minn. 163, 33 N. W. 172, 63 N. W. 10. 551, 5 Am. St. Rep. 832; MuUin v. 304. Myers v. Concord Lumber Northern Mill Co., 63 Minn. 29, 55 Co., 129 N. C. 252, 39 S. E. 960. N. W. 1115; McMUlan v. Union Press Brick Co., 6 Mo. App. 434. 430 Master and Sebvant. §§ 184-186 § 184. Set screws; faUure to guard. Failure to cover and properly guard set screws which the factory inspector had ordered covered is evidence of negligence. '"' In another case in another court it was held negli- gence.^"® In stiU another case, it was held a question for the jury whether the defendant was neghgent in not furnishing a belt shifter, and protecting a set screw by counter- sinking the head of the screw into the coUar or by guarding the place. ^"^ § 185. Not a duty when guard would not be a protection. Where a master has work by machinery performed in the usual manner and under ordinary conditions, and the practical operation of the machinery requires that the operator have an open and unobstructed field in front of rotating cylinders and other parts of the machine, and it is manifest that a guard or fence would not be a pro- tection or lessen the danger, no situation is presented charging the master with negligent omission to fence or guard the machine, even assimoing that the situation is controlled by the statute. '"* § 186. Duty to guard where young children exposed. Where a master hires young children, especially girls with long hair, to work near revolving shafting, it is its duty to guard the shafting, and in so doing to consider their age, inexperience and lack of care and discretion, and adopt a shield or device that will prevent the lia- bility of their hands coming in contact with dangerous machinery wMle engaged in the performance of their work. ^"^ 305. Sipes v. Michigan Starcli 308. Kuieh v. Milwaukee Bag Co., 137 Mich. 258, 100 N. W. 447. Co., 139 Wis. 101, 120 N. W. 261. 306. Bush V. Independent Mill 309. Kirwan v. American Litho- Co., 54 Wash. 212, 103 Pao. 45. graphic Co., 197 N. Y. 413, 90 N. E. 307. Pruke v. South Park F. & 945, 27 L. R. A. (N. S.) 972. M. Co., 68 Minn. 305, 71 N. W. 276. >§§ 187-190 Safe Appliances. 431 § 187. Where guard or guide essential to proper perform- ance of work. A machine itself may be defective without a proper guard or guide. That occurs where the guard or guide be- comes necessary in order for the machine to properly per- form the work for which it is designed. In fact it is a necessary part of the machine. Such was the question involved where a capstan was used to guide a wire cable in pulling logs from a pile into the water, around the corner of a building, and also to keep the cable in the middle of the drum winder. Whether it was insufficient and unsuitable by reason of not being provided with a suffi- cient guard or flange to prevent the cable from slipping off, it having slipped off on prior occasions, was held a question for the jury."" § 188. Attachment placed by servants for their own convenience. The master having furnished a suitable appliance is not Uable for an injury resulting to a workman from a defect in an attachment placed thereon by f eUow-servants merely for their own convenience."^ § 189. Guard provided but not used. Evidence was held sufficient to present the question of the master's neghgence in leaving cogs unguarded, the guard having been provided and not used.^^^ § 190. Removal of hood where not used for protection of operatives. The removal of a hood and blow pipe used to carry away dust and shavings from a planer, is not negligence, with respect to an operator hurt by contact with the planer knives, where the evidence does not show that they were ever used for the protection of operatives."' 310. Drapeau v. International Cordage Co., 187 Mass. 124, 72 Paper Co., 96 Me. 299, 52 Atl. 647. N. E. 840. 311. Maxfleld v. Graveson, 65 313. Erickson v. Cummer Mfg C. C. A. 595, 131 Fed. 841. Co., 140 Mich. 434, 103 N. W. 828. 312. Gomes v. New Bedford 432 Mastee and Sebvant. §§ 191, 192 § 191. Machinery not near employee. The statute and the common law rule as well, respecting the guarding of machinery so located as to be dangerous to employees in the discharge of their duties, do not apply to a situation where the employee must necessarily go out of any way which he would be reasonably expected to take, in order to reach it."* § 192. Illustrations as to safeguards. Blocking frogs. It may be that blocking frogs and guard rails are not strictly speaking safeguards, but rather a part of the structure or track, rendered necessary for their proper use, while incidentally it may serve as a protection to employees. Undoubtedly the blocking of frogs decreases the danger to employees. The question that seems to be most discussed where the question of blocking has been involved is whether one method or the other is most suitable for the business of the road. It was said, conceding that the use of blocks decreases the danger to employees, that does not prove neghgence of the master in not adopting it. The fact that some roads use it and the defendant uses it, in part, is not enough to sustain the charge of neglect. It must appear that the. old system is condemned and that the unblocked switches are unfit for the purpose for which used.'^^ 314. Hong V. Girard Lumber safest or most suitable for the Co., 144 Wis. 337, 129 N. W. 633. business of the roads, then the use 315. Chicago, B. I. & P. R. Co. of unblocked frogs is not negligence, V. Lonergan, 118 111. 41, 7 N. E. 55. and the jiiry are instructed not to See also McGinnes v. Canada S. impute the same as neghgence to Bridge Co., 49 Mich. 466, 13 N. W. to the defendant," was approved as 819; Lake Shore &M. S. R. Co. v. a correct statement of the law. McCormick, 74 Ind. 440; Huhn v. Southern Pac. R. Co. v. Seley, Missouri Pac. R. Co., 92 Mo. 440, 152 U. S. 145, 38 L. Ed. 391, 14 4 S. W. 937. An instruction "If Sup. Ct. Rep. 530; Wabash from the evidence the jury find that R. Co. v. Kithcart, 79 C. C. A. raUroad companies use both the 150, 149 Fed. 108; Donegan v. blocked and unblocked frogs, and Baltimore & N. Y. R. Co., 91 C. C. that it is questionable which is the A. 555, 165 Fed. 869. While it was §192 Safe Appliances. 433 A statute of Michigan requires that switches, frogs and guard rails shall be blocked. Neglect to conform to its held that the mere fact that frogs were not unblocked was not suffi- cient to establish negKgence, yet it was said evidence of those of prac- tical knowledge that unprotected frogs and switches are inherently unsafe and dangerous when pru- dently and carefully worked and managed, and that blocking them materially lessens the danger of their use and management, and that such safeg^uard was generally recognized by those engaged in operating railroads, would tend to establish the allegation that the continued and persistent use of un- protected switches by a railroad corporation is negligence. Missouri, Pao. R. Co. V. Lewis, 24 Neb. 848 40 N. W. 401, 2 L. R. A. 67. In Minnesota, in speaking of the duty of railroad companies in reference to blocking of frogs, it was said: "Such places unprotected are places of great danger, especially to men employed in coupling or uncoup- ling cars, and it is the duty of the company to guard its employees against the danger, if there be reasonably practical means of do- ing so known to it. Sherman v. Chicago, M. & St. P. R. Co., 34 Minn. 259, 25 N. W. 593 [dis- tinguishing Hughes V. Railway Co., 39 Ohio St. 461]. In Missouri, it was held whether a railroad com- pany shoidd have blocked frogs was properly a question for the jury. Hamilton v. Rich Hill Coal Min. Co., 108 Mo. 364, 18 S. W. 977. So in Iowa. Schroeder v. Chicago & N. W. R. Co., 128 Iowa, 365, 103 N. W. 985. The duty of the master in respect to blocking frogs, where required, does not require such blocking where new switches are being constructed and before the track is ballasted. Hauss v. Lake Erie & W. R. Co., 46 C. C. A. 94, 105 Fed. 733. In Iowa the statute includes a temporary track. Thus, whether employers who were con- structing or repairing a railroad and operating a temporary track along an embankment, it being held that they were within the por- visions of the Code, sec. 2071, were negligent in not blocking a frog in which the employee was caught and in the operation of the train not stopping in time to avoid the accident after being signalled, and in not furnishing the employee with a lantern upon his request with which he might have signalled the train, was for the jury. Mace V. H. A. Boedker & Co., 127 Iowa, 721, 104 N. W. 475. The use of blocking somewhat longer, thicker and wider than those in use is not negligence. A railroad company has a right to exercise its judgment in this respect. Morris v. Duluth, S. S. & A. R. Co., 47 C. C. A. 661, 108 Fed. 747. It was held, how- ever, by another court, that whether a blocking between the guard rail was so defective as to constitute neghgence on the part of the master, was a question for the jury. Also the question of assump- tion of risk by a brakeman. Pierson v. Chicago & N. W. R. Co., 127 Iowa, 13, 102 N. W. 149. 1 M. & S.— 28 434 Masteb and Sebvant. § 192 provisions renders a railroad company responsible to a servant injtired by reason thereof. ^^* The Maine statute of 1889 reqxming the blocking of frogs before January 1, 1890, was held not to require a raUroad company organized and constructing its road after that date to block its frogs before allowing trains to pass over the road, but that the company was entitled to a reasonable time to comply with the statute."' The Ohio statute requiring railroads to block all angles in frogs, switches and crossings, is expressly hmited to frogs in yards, divisional and terminal stations where trains are made up."' Blocking an appliance to keep it stationary. Neglect to block or cleat an appliance used for moving heavy bodies, so as to prevent their moving, does not affect the character of the appUance as being safe. Such duty, if reqviired, is that of f eUow-servants. "^ Blocking guard rails. The rule that a master is not liable in damages for the consequences of mere error of judgment, was appUed where the negligence charged was the failure to block 316. Grand v. Michigan Cent, literal compliance ■with the statute R. Co., 83 Mich. 564, 47 N. W. requiring the blocking of frogs is 837, 11 L. R. A. 402; Ashman v. not possible, the duty of a railroad Flint & P. M. R. Co., 90 Mich, company is to make its frogs as 667, 51 N. W. 645. Where a system nearly safe as possible. Evidence of blocking was adopted under the that a frog was old and worn by the requirements of the statute, which flanges of the wheels is sufficient to was claimed to be insufficient and justify a finding of negligence on inadequate, it was held to be the the part of the company. Jones v. duty of railroad companies to Flint & P. M. R. Co., 127 Mich, adopt some reasonably safe and 198, 86 N. W. 838. efficient system; that the use of an, 317. GiUin v. Patten & S. R. improper and inefficient system Co., 93 Me. 80, 44 Atl. 361. was not a compliance with the 318. Toledo, St. L. & W. R. statute, where there were in com- Co., v. Kountz, 94 C. C. A. 244, mon use other systems which 168 Fed. 832. served the purpose. Eastman v. 319. O'Keefe v. BrowneU, 156 Lake Shore & M. S. R. Co., 101 Mass. 131, 30 N. E. 479. Mich. 597, 60 N. W. 309. If a § 192 Safe Appliances. 435 guard rails, it appearing from the evidence that blocking was not generally adopted, and there was reasonable ground for the contention of railroad men that the blocking system was not more safe, if as safe, as where blocking was omitted. ^^^ Cable, precautions to prevent falling. A finding that the master, owner of a stone quarry, was Uable for injuries to a servant, upon the ground of Ms failure to take proper precautions to prevent a cable extending across the pit of the quarry to a derrick from falling into the pit when loosened, was sustained. The employee was not injured while in the pit. ^^^ Boxing of shafts. The duty of the master to exercise reasonable care to provide a reasonably safe place for his employees to work, includes not only the boxing of revolving shafts, where dangerous, but also to see that the covering is over the shaft when in motion. This was held where the end of a revolving shaft extended into the dressing room for employees, and was covered with a box except at the time of an accident to one of the employees. ^^^ Cars, fenders upon front. A street railway company is not negligent, so far as its duty to its employees is concerned, in failing to put guards and fenders upon the front of its cars.^^' Cars without foot boards. Where a brakeman was injured by falling to the ground while passing over a flat car loaded with machinery to reach brakes for the purpose of setting them, and it was charged that not providing a foot board, in connection 320. O'Neill v. Chicago, R. I. Marston Co., 198 Mass. 224, 84 & P. R. Co., 66 Neb. 638, 92 N. W. N. E. 321, 17 L. R. A. (N. S.) 568. 731, 60 L. R. A. 443. 323. Chandler v. Atlantic C. 321. Milton v. Biesantz Stone Elec. R. Co., 61 N. J. L. 380, 39 Co., 99 Minn. 439, 109 N. W. 999. Atl. 674. 322. Flynn v. Prince, CoUins & 436 Masteb and Seevant. § 192 with the position in wMch the car was placed in the train, was a neglect of duty, it was held the jury was justified in finding the company hable, and the fact that such man- ner of loading was customary did not reUeve it from liabihty.'24 Cars without sand boxes. It was held a question for the jury whether its duty required a street railway company to provide its cars with sand boxes for use, quickly stopping the car. An em- ployee on a tower wagon, while adjusting the trolley wires, was injured by a car ruiming into the wagon, the motor- man being unable to stop the car with the use of the brake. '^* Cog wheels exposed. The master's negligence, in failing to provide a rea- sonably safe place for the work of his employees, appeared where certain cog wheels in its mill had worn through the plank covering over them so as to expose them, where an employee was set to work on the saw, the same day of his injury, close to said apphance, and was not advised of the condition. ^2^ The question of defendant's negUgence was proper for the jury where an employee was ordered by the foreman to perform work close to unguarded cogs, and some waste he had in his hand caught in the cogs, drawing his hands and inflicting injiuy. Stress was laid upon the fact of obe- dience to direct orders.'^' Conveyor without platform. That the jar caused by a revolving belt with buckets as a conveyor of crushed rock, which sometimes created a jar and disturbed a hopper into which the rock was 324. Hosic V. Chicago, R. I. 326. Rock Island Sash & Door & P. R. Co., 75 Iowa, 683, 37 N. W. Works v. Pohlman, 210 lU. 133, 963, 9 Am. St. Rep. 518. 71 N. E. 428. 325. Van Dyke v. Atlantic 327. Cobb Chocolate Co. v. Ave. R. Co., 67 Fed. 296 [affirmed Knudson, 207 111. 452, 69 N. E. 816: in 18 C. C. A. 632, 72 Fed. 458]. § 192 Sate Appliances. 437 dumped or conveyed, and on the particular occasion did create a jar by which an employee was injured while standing upon the edge of the hopper dislodging stone which had clogged it, was sufficient to sustain a verdict of neghgence on the part of the master in not furnishing a safe place to work, it being suggested that he should have built a platform upon which the servant could stand. The question whether the plaintiff should have anticipated the danger was also for the jury.^^^ Cocker, safety valve on. An inference of neghgence on the part of the master was warranted where he failed to attach a safety valve on an apphance called a "Cocker" where suppUed with steam from a boUer, and the steam pressure thus appKed might be beyond the strength of the cocker, and cause it to explode. ' ^' Cow catcher on engine. It was held that operating a freight train without the engine being provided with a cow catcher, was neghgence. A distinction seems to be made between the operation of an engine engaged in hauling a train and one used in yard for switching purposes and the hke.^™ Elevators. "Where a boy less than fourteen years of age was injured while upon an elevator, in the course of his employment, by his foot which was extended over the side, the sides not being guarded or fenced, coming in contact with a floor sill, it was held a question for the jury whether the apphance thus without guards, considering the purpose of its use for boys, of whom there was a large number, was a reasonably safe apphance.'^ 131 328. Altvasser v. Duluth 330. Tennessee Coal, Iron & Crushed Stone Co., 108 Minn. 206, R. Co. v. Kyle, 93 Ala. 1, 8 So. 121 N. W. 906. 764, 12 L. R. A. 103. 329. Empson Packing Co. v. 331. Strawbridge v. Bradford, Vaughn, 27 Colo. 66, 59 Pae. 749. 128 Pa. St. 200, 18 Atl. 346. 438 Master and Sekvant. § 192 It was held a question for the jury whether the mas- ter was negUgent in failing to provide a speed governor as an additional safety appliance for an elevator."^ It was held not negUgenee to omit to place safety appU- anees on a freight elevator.''' Whether the employer was negligent in the matter of the latch and barrier to an opening in an elevator shaft, where an employee stepped from the floor directly into the shaft, supposing the elevator platform was there, was held a question for the jury."* The f ailm-e to comply with an ordinance requiring bar- riers around an elevator shaft, to be closed when elevator not in use, was held neghgence.'" Glass tube. Where a fireman upon a locomotive was injured by the explosion of a glass tube connected with a lubricating cup attached to the boiler head, it being claimed that these glass tubes were so liable to explode and had frequently exploded that the danger should have been known to his employer, and such danger might have been easily avoided by the use of some shield or guard, that such shields were in use, and that such risk was not incidental to his employ- ment and was not known to him, it was said these were all questions of fact for the jury."^ King pin. It was held neghgence on the part of a railroad company to omit having a key through the king pin in couphng an engine and tender, the absence of which permitted the pin to work out causing the death of a fireman. ' " 332. Simmons Mfg. Co. v. Esk- 334. Roth v. Buettell Bros. Co., ridge, 94 C. C. A. 161, 168 Fed. 675. 142 Iowa, 212, 119 N. W. 166. 333. Sievers v. Peters B. & 335. Weiidler v. Peoples House L. Co., 151 Ind. 642, 50 N. E. 877, Furmahing Co., 165 Mo. 527, 65 52 N. E. 399; IndianapoHs Abat- S. W. 737. toir Co. V. Neidlinger, 92 N. B. 336. Stafford v. Maine Cent. (Ind.) 169; Kern v. De Castro & R. Co., 94 Me. 178, 47 Atl. 148. D. S. R. Co., 125 N. Y. 50, 25 N. B. 337. Missouri, K. & T. R. Co. 1071. V. Snow, 115 S. W. (Tex. Civ. App.) 631. § 192 Sape Appliances. 439 Lever, safety device locking. Where the master knew that a machine was liable to start automatically, it was held his duty to attach a safety device locking the lever to prevent such an occurrence.'" Guards on machine not used by injured servant. The master's duty in respect to the working place and appUances furnished employees, is confined to such as they are required to work or use; hence it was held the master was not liable for injuries to an employee in failing to guard a machine with which the employee was not required to use or touch.''* Lights. Where it appeared that the third night of plaintiff's employment in a saw mill, while he was engaged in pushing a loaded car on a platform elevated twenty feet from the grotmd, which at the place of the accident was narrowed by reason of a curve to a width outside the car track of but six or eight inches, he stepped therefrom and sustained injuries, and the only hght furnished was that from a lantern of a fellow-workman, a verdict of negli- gence on the part of the master was sustained.'^" This ruling evidently could be sustained on the groimd of the insufficiency of the place without proper hghting as well as failure to warn and instruct. '^°' Opening in drum uncovered. It was held that a boy eighteen years old, with two years experience in a paper mill, who, in cleaning a screen got his hand in an opening in the drmn, which he might have seen had he looked, being several feet above the screen, had no ground for recovery. Actionable neghgenee 338. Rogers v. Portland Lum- 340. H. C. Akeley Lumber Co. ber Co., 54 Oreg. 387, 102 Pac. 601, v. Rauen, 7 C. C. A. 424, 68 Fed. 103 Pao. 514. 668. 339. Harper v. Illinois Cent. 340a. See supra, § — , as to un- R. Co., 131 Ky. 225, 115 S. W. 198. safe place to work. 440 Masteb and Seevant. § 192 was not shown wlietlier the opening was or was not covered.'" Railing on log deck. A hand raU along a log deck to assist employees in passing up and down the machine, and sufiB.cient for such purpose, negligence in maintaining it did not appear from evidence that it broke when an employee fell against it.'*'' Railing to pit. A railroad company is not guilty of negligence in failing to erect barriers around its pits used by its employees in its roimd house.'*' Railing on tender. Evidence was proper to show that it is practicable to place a railing around the top of a tender to safely in- crease its capacity, where the capacity was limited to that barely sufficient to make the run, and coal was heaped above the sides, a piece falling therefrom and injuring a seetionman.'** Saw, guarding. A foreman in setting an inexperienced employee to work and furnishing a saw for his use, it was held, represented the master. It appears a gauge was not upon the saw, though near by, and the jury might have foimd it was neghgence in furnishing the saw without the gauge. '*^ A master was not reqidred to guard a small saw nearly hal^ of which was above the table, the danger therefrom being plainly obvious.'** 341. ScMefelbein v. Badger Pa- 344. Union Pae. R. Co. v. per Co., 101 Wis. 402, 77 N. W. Erickson, 41 Neb. 1, 59 N. W. 347, 742. 29 L. R. A. 137. 342. Deeker v. Stimson MiU 345. L'Hote v. S. B. Dibble Co., 31 Wash. 522, 72 Pac. 98. Lumber Co., 203 Mass. 294, 89 N. 343. McDonneUv. Illinois Cent. E. 532. R. Co., 105 Iowa, 459, 75 N. W. 346. Chicago Veneer Co. v. 336. Walden, 82 S. W. (Ky.) 294. § 192 Safe Appliances. 441 Signal lights. Negligence cannot be predicated on the absence of a signal Ught, where a proper hght had been placed in posi- tion which was unexpectedly and without fault extin- guished when it was apparently in good order.'*' Switch light. It was not negligence to have switches without lights on them in a railroad yard, in the absence of proof that such was a common and uniform practice and that switchmen had a right to expect them. ' ** Switches. Locks. It was said it would be negligence in a railroad company to have its switches entirely without locks to secure them, thereby putting it in the power of any reckless or mahcious stranger to change them at will; and in respect to cer- tainty and security, there may not be any difference be- tween a lock capable of being opened and no lock at all.'*' Tank cars, providing handles on. It was left to a jury whether a railroad company was neghgent in not providing handles on tank cars for the use of brakemen in coupling. But this was held in the absence of proof of plaintiff's knowledge of the character of the apphance, of the proportion of cars thus provided, and whether the use of such cars was an obvious risk of the business. '"• Tell tales. Where the question was as to the non use of tell tales, it was said, the rule was whether it is so manifestly serviceable as to command the consensus of intelhgent railroad men so generally that it cannot be reasonably ignored or disregarded or its utility is disbelieved and 347. Elgin, J. & E. R. Co. v. Rep. 516; Birmingliam R. & E. Malaney, 69 lU. App. 114. Co. v. AUen, 99 Ala. 359, 13 So. 348. Grant v. Union Pao. R. 8, 20 L. R. A. 457. Co., 45 Fed. 673. 350. Graham v. Boston & Al- 349. Coleman v. Wilmington, bany R. Co., 156 Mass. 4, 30 N. E. C.&A. R. Co.,25S.C.446,60Am. 359. 442 Masteb and Sebvant. §192 disallowed in the management of many well regulated railroads. If this question be debatable and skilled rail- road men honestly differ in judgment as to the utiUty of this or any other cautionary appliance, and differ to such extent as that many well regulated roads abstain from their use, then such abstenance is not negligence.'" Where a brakeman was injured by a blow from a rail- road tell tale which was sufficiently raised above an ordi- nary freight car, but not sufficiently raised above some of the cars used by the company, it was held that maintain- ing a teU tale of insufficient height or undue rigidity was a breach of the company's duty to provide safe appliances for its employees."^ It was also held a question for the jury whether a rail- road company was guilty of negligence in maintaining a teU tale near one of its low bridges, constructed with a covering over the cross beam from which the ropes were suspended, thirty inches in width, it being contended that such width of the covering permitted the ends of the ropes when blown by the wind or elevated by the exhaust of an engine to lodge upon such platform and that they were so lodged at the time in question, when a brakeman on top of a car came in contact with the bridge and was injured, having received no warning from the teU tale.'*' Threshing machine. Uncovered bevel wheel and cogs. It was held that the owners of a threshing machine were guilty of gross negligence in leaving its bevel wheel and cogs uncovered, and that a laborer, whether a servant of the operator or otherwise, injured while attempting pursuant to orders, to oil the machine without knowledge of the danger, was entitled to recover for injuries sus- tained by contact with such gearing.'^* 351. Louisville & N. R. Co. v. 353. WMtehead v. Wisconsin HaU, 91 Ala. 112, 8 So. 371, 24 Cent. R. Co., 103 Minn. 13, 114 Am. St. Rep. 863. N. W. 254, 467. 352. Darling v. New York, P. 354. Mastin v. Levagood, 47 & B. R. Co., 17 R. I. 708, 24 Atl. Kan. 36, 27 Pac. 122, 27 Am. St. 462, 16 L. R. A. 643. Rep. 277. § 192 Sape Appliances. 443 Track; guard rail on curve at foot of steep grade. Whether the raih-oad company should have anticipated that an accident might occur on a curve at the foot of a long and steep grade, and thus taken the precaution of guarding against it by providing a guard rail, was held a question for the jury. The grade was 240 feet to the mile and accidents had previously occurred there. The brakes from some unknown cause, when part way down the grade, refused to work.'" Trap door. Trap doors are dangerous openings and when left open should be properly guarded. '^* Trenches. Plaintiff, a laborer, while laying defendant's gas main in a trench excavated for that purpose, was injured by a horse falling into the unguarded trench. It was held that it was for the jury to determine the following questions: "First, whether the defendant was negligent in not guard- ing the trench. Second, whether the foreman who directed the plaintiff to tamp earth was a feUow-servant or a vice principal. Third, whether the plaintiff assumed the risk which resulted in an accident not due to the natural pro- gress of the work, but to an operation of a cause wholly disconnected with and independent of it. Fourth, whether the plaintiff was guilty of contributory negUgence in continuing the work with knowledge that the trench was not guarded.'" Wires, boxing. It may be shown that the general mode is to leave the wires from the derail to the signals of an interlocking switch device, imcovered, but that in switch yards and places where many cars are to be handled to have the wires boxed, and a question for the jury is presented as to 355. Patton v. Southern R. Co., 357. Johnson v. St. Paul Gas- 27 C. C. A. 287, 82 Fed. 979. light Co., 98 Minn. 512, 108 N. W. 356. Hayes v. Frederick Steams 816. See premises, trenches and & Co., 130 Mich. 287, 89 N. W. 947. pits, for other cases. ' 444 Master aitd Servant. § 193 negligence in failing to box such wires in a switch yard, where a brakeman in the hne of his duty is injured by con- tact with such unboxed wires.'*' § 193. Statutory regulation and factory acts. In several of the states, statutes have been enacted to protect employees by requiring certain safeguards in con- nection with the use of particular machinery. Generally the master is liable for injuries to a servant caused by failure to obey such a statute, although the rule of as- sumed risk prevails in most jurisdictions even in such a case. Generally, these statutes merely give more force to the common law rule as to the master's duty in providing a reasonably safe place to work. However, as wiU be seen, in some jurisdictions, the non-compUance with the pro- visions of the statutes creates an absolute liability. Whether machinery is properly guarded depends upon the character of the guard, and the situation, nature and character of the machinery, and ordinarily is a ques- tion of fact for the jury.'*' Indiana. Under the Indiana Factory Acts, providing that in maniifacturing establishments, "all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws and machinery of every description shaU be properly guarded," the failure to guard machinery belonging to the classes specified is negUgence per se, but failure to guard "ma- chinery of every description therein," is not negligence per se, but is only negligence where its use, unguarded, is dangerous, and this is a question for the jury. '^'' The statute (Burns Ann. Stat. 1901, sec. 7087) requir- ing the guarding of machinery, does not require the guard- ing of machinery when the guarding would render the 358. Indiana, I. & I. R. Co. v. construing New York statute. Bundy, 152 Ind. 590, 53 N. E. 175. 360. United States Cement Co. 359. Rabe v. Consolidated Ice v. Cooper, 82 N. E. (Ind. App.) Co., 51 C. C. A. 535, 113 Fed. 905, 981. § 193 Safe Appliances. 445 machine useless nor those parts of machinery not danger- ous to employees required to work in the immediate vicinity thereof.'" It was held that the statute requiring the guarding of vats had no application to guarding the cover of a vat. An employee was injured by the falling of the cover. '*^ It is negligence per se on the part of an employer to fail to properly guard machinery, such as a rip saw in a mill, in violation of the statute requiring it.'*' Under the statute (Bm-ns Ann. Stat. 1901, sec. 7087) providing that the operators of factories shall furnish or supply, in the discretion of the chief inspector, belt shifters or other safe mechanical contrivance to throw on or off belts or pidleys, an employer is not negligent in faiUng to fm-nish a belt shifter unless the same has been required by the chief inspector."* Where an employee, while standing with one foot on a piece of shafting, near unguarded gearing, lost his balance and the piece of shafting rolling under his foot he was thrown in contact with the imguarded cogs, it was held the proximate cause of his injury was the rolling of the piece of shafting and hence the master was not liable under the factory act for failure to guard such cogs. '" Iowa. The statute (Code Supp. 1902, sec. 4999b) requiring the guarding of aU machinery was held not to impose any greater duty on the master than would have existed with- out it. '** It was subsequently held imder a statute which requires saws in manufacturing estabUshments to be guarded that a failure on the part of a master of such an estabhshment to 361. Laporte Carriage Co. v. 364. Robertson v. Ford, 164 SuUender, 165 Ind. 290, 75 N. E. Ind. 538, 74 N. E. 1. 277. 365. P. H. & F. M. Roots Co. v. 362. Bessler v. Laughlin, 168 Meeker, 165 Ind. 132, 73 N. E. 253. Ind. 38, 79 N. E. 1033. 366. Sutton v. Des Moines 363. Davis v. Mercer Lumber Bakery Co., 135 Iowa, 390, 112 Co., 164 Ind. 413, 73 N. E. 899. N. W. 836. 446 Masteb and Servant. § 193 guard saws, when practicable, is negligence. That the law was disregarded in other factories is no excuse. ^" The duty of an employer to furnish belt shifters pursu- ant to the Factory Act (Code Supp. 1907, sec. 4990a 2). exists irrespective of the question of the practicability of providing loose pulleys. An idler consisting of a puUey and a train was not a contrivance within the Factory Act requiring belt shifters.'^* It seems to be an open question in Iowa, whether the Factory Act precludes the defense of assumed risk. Cases have been decided upon the ground of assumed risk, but recently the question has been put in doubt. The defense of contributory neghgence is not precluded. The rather inconsistent position was taken by the court that, though an employee not having previously operated a mangle on which she was injured, was familiar with the method of feeding and aware of the danger incident thereto, and had previously operated a machine of similar character, the defendant was not neghgent in faiUng to warn her of dangers incident to the operation of the machine. Yet though she knew the machine was not equipped with the required guards, she had no knowledge that safety appli- ances were provided to lessen the danger and that they were in ordinary use and had been negligently omitted, she did not assume the risk of the added danger from the failure to provide guards. It appears from the dissenting opinion, and assumed as a fact, though not mentioned in the majority opinion, that the plaintiff voluntarily under- took to operate the machine, was not directed to do so by the defendant or any one in his employ, and that she was not employed to work with the machine. It was held the question of her contributory negligence was for the jury.'*' 367. O'Connell v. F. Smith & ing & Mfg. Co., 143 Iowa, 303, 119 Sons, 141 Iowa, 1, 118 N. W. 266. N. W. 738. 368. McCreery v. Union Roof- 369. TyrreU v. E. E. Cain & Co., 128 N. W. (Iowa) 536. § 193 Sape Appliances. 447 Kansas. The principal purpose of that provision of the Factory- Act (Laws 1903, ch. 356, sec. 540) requiring the inclosing or securing elevator shafts, well holes and hoisting shafts, is to protect employees from injury, and failure to comply with this statute, whereby an employee was injured, was prima facie evidence of negUgence. "" Kentucky. Under the statute, failure of a mine operator to adopt the statutory precautions is negUgence per se."^ Massachusetts. Section 1630, statutes of 1898, among other things, provided that "the owner or manager of every place where persons are employed to perform labor, shall surround every stationary vat, pan or other vessel into which molten metal or hot liquids are poured or kept, with proper safe- guards for the protection of his employees, and aU belting, shafting, gearing, hoists, fly-wheels, elevators and drums therein which are so located as to be dangerous to employ- ees in the discharge of their duty, shaU be securely guarded or fenced." This statute does not preclude the defense of assumed risk, and a master owes a servant no duty to guard certain machinery where the servant knew there was no guard when he entered the emplojrment.'^^ The statute providing that elevators, whether used for freight or passengers, shall be securely held, in the event of an accident to the shpper rope, etc., when con- sidered in connection with the history of the legislation on the subject, does not apply to an elevator temporarily used as a part of the ways, works and machinery in the con- struction of a building."' 370. Fowler PacMng Co. v. 372. Saxe v. Walworth Mf.er. Enzenperger, 77 Kan. 407, 94 Pac. Co., 191 Mass. 338, 77 N. E. 883, 995, 15 L. R. A. (N. S.) 784. 114 Am. St. Rep. 613. 371. Andricus' Adm'r v. Pine- 373; Rippueei v. Common- viUe Coal Co., 28 Ky. L, Rep. 704, wealth Const. Co., 190 Mass. 518, 90 S. W. 233. 77 N. E. 478. 448 Master and Sbevant. § 193 The violation by a master of such statute requiring ele- vators to be guarded and equipped with some device to prevent persons being caught between the floor of the cab and the floor of the building, while not conclusive proof, is evidence of negligence in an action for injuries to a servant."* Michigan. The statute makes it the employer's duty to safeguard aU gearing and belting in his factory irrespective of whether such safeguards have been ordered by the factory inspector. A violation of this statute constitutes a ground for recovery of damages by a servant inj\ired thereby, nothwithstanding he may have knowledge of the neglect of this duty, if free from contributory negligence. Con- tributory negUgence may be a defense.*" ' The doctrine was reasserted that as assumption of risk is the result of contract of employment, and as the master cannot legally contract to violate a statute, the servant does not assume the risk due to an omission of a statutory duty on the part of the master, such as neglect to safe- guard aU gearing and belting."^ There is no violation of the statutory duty on the part of an employer in failing to guard a revolving line shaft situated two feet from the floor of a factory at a point where there are no couplings, set screws or projections of any kind.*" 374. Fmnigan v. Samuel Win- ■whicli was apparent and whioh any slow Skate Mfg. Co., 189 Mass. 580, person of his age and ordinary sense 76 N. E. 192. would have known, he was held 375. Swiok v. .^tna Portland guilty of such contributory negU- Cement Co., 147 Mich. 454, 111 N. gence as precluded recovery for an W. 110; Van Doom v. Heap, 160 injury thus received. Gehl v. Pitts- Mich. 199, 125 N. W. 11. While the burg Coal Co., 128 N. W. (Mich.) statute (Pub. Acts 1901 no. 113, sec. 209. 8) requiring the covering or guard- 376. Swick v. Mtna, Portland ing of machinery, precludes the Cement Co., 147 Mich. 454, 111 drfense of assumed risk, it does not N. W. 110. preclude the defense of contributory 377. Hertel v. Safety Folding negligence; hence where an em- Bed Co., 149 Mich. 223, 112 N. W. ployee, a fireman, voluntarily places 712. himself in a place of extreme danger, § 193 Safe Appliances. 449 The liability of the master for injury to a servant by reason of failure to guard dangerous machinery under the provisions of the statute of 1901 depends upon the fact of the order having been made by the factory inspector and brought to the notice of the master; and where in such action there was conflicting evidence whether such order had been made and notice received, the question was for the jury.'^* The statutory duty imposed upon manufacturers to provide certain safeguards for machinery, in the discretion of the factory inspector, does not exist until the inspector has declared such safeguards necessary."' The notice required is notice by the inspector and until this notice is given the statutory habUity does not exist.'*" Minnesota. The Minnesota statute (sec. 2248, Gen. Stat. 1894) requires that all dangerous machinery in any mill, factory or shop, be so guarded, if practicable, as to protect the workmen or employees, whether actually engaged in operating the machinery or in the discharge of any of their duties, from liability to injury therefrom. Failure to perform this duty is negligence, which will justify recovery of damages by one injured by reason of such neglect, and this though it could not reasonably have been anticipated injury would follow in the precise way in which it actually occurred.'*^ Under another statute, in the operation of any factory, mill or workshop, it is the duty of the master to not only furnish but maintain as far as practicable, a guard or shield over or above aU saws, planers, wood shapers, jointers, etc. Such master is liable for damages resulting to a workman from a neglect so to do where the workman was 378. Kerr v. National Fulton 380. Borok v. Michigan Bolt & Brass Mfg. Co., 155 Mioh. 191, 118 Nut Works, 111 Mich. 129, 69 N. W. 925. N. W. 254. 379. Monforton v. Detorit 381. Christianson v. N. W. Pressed Brick Co., 113 Mich. 39, Compo-Board Co., 83 Minn. 25, 71 N. W. 586. 85 N. W. 826, 85 Am. St. Rep. 440. 1 M. & s.— 29 450 Master and Sekvant. §193 not informed that sucli machine was unguarded or did not appreciate the risk of injury incident thereto. ^^^ Whether cog wheels were sufficiently guarded in com- pliance with the statute is a question for the jury.'*' The Factory Act does not abolish the defense of assump- tion of risk.'*^ The statute requiring the guarding of dangerous ma- chinery, where practicable, is intended for the protection of employees operating the machine as well as the pro- tection of the careless and ignorant who may accidentally come in contact with it. The master is not excused by the mere fact that such machinery has not been manufactured with a guard, nor that it was not customary to guard that type of a machine. Failure to guard, where the statute apphes, is negligence.'*^ 382. McGinty v. Waterman, 93 Minn. 242, 101 N. W. 300. 383. Peterson v. Jolmson- Wentworth Co., 70 Minn. 537, 73 N. W. 610. 385. Glenmont Lumber Co. v. Roy, 61 C. C. A. 506, 126 Fed. 524. 386. CaUopy v. Atwood, 105 Minn. 80, 117 N.W. 238,18 L.R. A. (N. S.) 593. Whether the shaft to a wood sawing machine should be guarded in any other manner than as protected by the feeding trough in front of which the operator stood, was a question of fact for the jury. It was error for the trial court to instruct the jury that the master was negligent in failing to comply with the statute by not covering the shaft. KerHng v. G. W. Van Dusen & Co., 108 Minn. 51, 121 N. W. 227. A log turning machine was held to be within the statute re- quiring dangerous machinery to be guarded. Abel v. Hardwood Mfg. Co., 107 Minn. 214, 120 N. W. 359, 121 N. W. 916. Em- ery wheels are included within "machinery" required to be guard- ed by Rev. Laws 1905, sec. 1813. Failure to guard is negligence. Duty is personal to the master. Davidson v. Flour City Ornamental Iron Works, 107 Minn. 17, 119 N. W. 483, 28 L. R. A. (N. S.) 332, 131 Am. St. Rep. 433. Plaintiff, a coal shoveler at an elevator, also in charge of an engine operating it, who went into a small engine houso to remedy "something which did not sound right," stumbled and feU, as he contended, upon an un- guarded belt and pulley. The case was brought within the factory act. (Sec. 1813 Rev. Laws 1905.) Rase V. Minneapolis, St. P. & S. S. M. R. Co., 107 Minn. 260, 120 N. W. 360, 21 L. R. A. (N. S.) 138. The negligence of the master was held a question for the jury where the boxing over certain rollers, by force of the machinery within, was bursted, and a piece of the box thrown against the employee in- juring him. PoczerwinsH v. C. A. Smith Lumber Co., 105 Minn. 305, >§ 193 Sapb Appliances. 451 A detached pump house was held to be within the same class as a factory, mill or a workshop, and was within the provisions of the Factory Act, and hence failure to guard a shaft with a projecting key therein, when so situated as to be dangerous to workmen, was in violation of the stat- ute.'" Missouri. An act approved April 20, 1891, declares that all dan- gerous shafting and gearing in manufactiu-ing establish- ments shall be safely guarded. It seems to be held that a violation of this statute is negligence, and where the guard had become broken and the gearing exposed and an em- ployee slipping upon the floor, his hand being caught by the gears through the opening, the master was held liable. ^^* The statute providing for guarding belting, shafting, gearing and drums in all manufacturing establishments, etc., has no application to a planer operated without a hood,'*' nor to a sand paper smoothing machine,''" and does not abolish the defense of assumption of risk.'" The statute of 1899 requiring guards to be placed before elevator openings in manufacturing, mechanical and mer- cantile buildings, and such guards to be closed except when in actual use, is not designed for the protection of opera^ tives of elevators. It was also held that the injury sued for was within the exception. '^^ 117 N. W. 486. The hood or 387. Thomas v. Burt, 128 N. blower to a revolving eyHnder W. (Minn.) 297. with knives, in a planing machine, 388. Lore v. American Mfg. which was battered and worn so Co., 160 Mo. 608, 61 S. W. 678. that it did not fit closely, and 389. Smith v. Forrester-Naee thereby suction of air was created Box Co., 193 Mo. 715, 92 S. W. over a roUer into the cylinder under 394. the hood, was not a proper protec- 390. Czernicke v. Ehrlich, 212 tion to dangerous machinery as re- Mo. 386, 111 S. W. 14. quired by the statute. The suction 391. St. Louis Cordage Co. v. of air drew the operator's sleeve Miller, 61 C. C. A. 477, 126 Fed. into the oyUnder and his arm upon 495, 63 L. R. A. 551. the knives. Jaroszeski v. Osgood 392. Latapie-Bignaux v. Askew & B. Mfg. Co., 80 Minn. 393, 83 Saddlery Co., 193 Mo. 1, 91 S. W. N. W. 389. 496. 452 Mastee and Servant. § 193 New Jersey. The violation of the Factory Act by an employer in respect to guarding vats, etc., in the absence of contribu- tory negligence, renders the employer Liable for an injury to his employee.'" The statute relating to factories and workshops, the safety, health and hours of operatives, requiring among other things the guarding of belts and gearing, has no apphcation to a shafting used in gathering natural ice.^'^ New York. The purpose of the Factory Law (c. 409, Laws of 1886, amended by c. 673, Laws of 1892), was to give more force to the existing rule that masters should afford a reasonably safe place for their servants to work; not that every piece of machinery should be covered or guarded, but that those parts of the machinery which are dangerous to servants whose duty requires them to work in its vicinity, should be properly guarded. The statute does not attempt to specify how machinery shall be guarded otherwise than as "properly" guarded, which in each case is a question of fact depending upon the situation, nature and danger- ous character of the machinery. A set screw projecting five-eighths of an inch from the coUar at one end of a shaft which is from fifteen to eighteen feet above the floor, out of reach of employees operating the machinery and reached only by a ladder, and approached only for the purpose of oUing, does not, as matter of law, violate the Factory Act. '9* In the absence of a direction on the part of the super- intendent of pubhc buildings as to the particidar method to be adopted in guarding elevator openings, the adoption of any one of the three methods prescribed by statute, saves the owner from the charge of negligence founded 393. Dix V. Union Ice Co., 76 395. Glens Falls P. C. Co. v. N. J. L. 178, 68 Atl. 1101. Travelers' Ins. Co., 162 N. Y. 399, 394. Griffith V. Mountain Ice 56 N. E. 897. Co., 74 N. J. L. 272, 65 Atl. 853. § 193 Safe Appliances. 453 on a violation of the statute. A chain perfectly secured at one end and attachable at the other to a hook and staple on the ground floor, is a compliance with the statute.''^ Where a revolving shaft by which a servant was injured while at work near it, was elevated fourteen or fifteen feet above the floor of a factory and could be reached only by the use of a ladder, the master cannot be charged with neghgence under the Factory Act in. failing to properly guard it. '" Compliance with the Factory Act which requires cover- ing of cog wheels is waived by an employee accepting employment upon a machine where they are not cov- ered. '^^ Ohio. The mere fact of non-observance of a statutory duty is not of itself proof of negligence. The fact, however, that the act which is charged to be negUgent was also a breach of statute, may be considered with other evidence as a circumstance tending to prove negligence.''' Rev. St. 1906, sec. 4364— 89c, makes it the duty of owners and operators of shops and factories, etc., to guard against injury to persons who may come in contact with machinery, by coimtersinking or cutting off bolt heads and set screws upon wheels, shafting and other revolving machinery, which might otherwise project beyond the surface of a revolving part. By the Act of 1904, 97 Ohio Laws, p. 547, it is in substance provided that knowl- edge by an employee that the machinery of his em- ployer is not guarded as required by the statute, shall not be a defense, but that a continuance in the service with knowledge shall operate to prevent a larger recovery in case of death than $5,000 or $3,000 when there is injury without death. 396. Malloy v. New York Real 398. E. S. Higgina Carpet Co. Estate Ass'n, 156 N. Y. 205, 50 v. O'Keefe, 25 C. C. A. 220, 79 N. E. 853, 41 L. R. A. 487. Ted. 900. 397. Dillon v. National Coal 399. Jacobs v. Fuller & Hutsin- Tar Co., 181 N. Y. 215, 73 N. B. piUer Co., 67 Ohio St. 70, 65 N. E. 978. 617, 65 L. R. A. 833. 454 Masteb and Seevant. § 193 Oregon. To entitle an injured employee to recover under Laws 1907, p. 302, requiring safeguarding dangerous macMnery in mills and factories, he must plead non-compliance by the master with the terms of the act, that the injury was the result thereof, and that notice had been given within six months of the time, place and cause of the injury.*"'* Pennsylvania. Under Act May 2, 1905, requiring machinery of every description to be guarded, a master is responsible for failure to guard the same, though it is customary not to guard the machinery in question. Applied to a failure to guard a revolving fan.*" Rhode Island. The statute (Laws 1896, c. 68, sec. 6) imposing on a mas- ter the duty of providing "all belting and gearing" with proper safeguards, does not include shafting and pulleys. *° "^ Washington. Factory Act Laws 1905, p. 164, ch. 84, requires friction wheels to be guarded.*"' A master, imder the statute, requiring the safeguarding of machinery, is only required to use such a guard as his own experience, observation and judgment shows to be suitable and proper.*"* It was subsequently held, however, that the method or the character of the guards used in guarding machinery, where guarding is reqxiired in general terms by a statute, was not to be determined by custom, nor was it within the ordinary judgment of the employer, but rather that such safeguards must be adopted as reasonable prudence, 400. Rogers v. Portland Lum- 402. Pierce v. Contrexville Mfg. ber Co., 54 Oreg. 387, 102 Pao. 601, Co., 25 R. I. 512, 56 Atl. 778. 103 Pao. 514. 403. Ward v. National Lumber 401. Jones v. American Cara- & Box Co., 54 Wast. 304, 103 mel Co., 225 Pa. St. 644, 74 Atl. Pae. 1. 613. 404. Daflron v. Majestic Laun- dry Co., 41 Wash. 65, 82 Pae. 1089. § 193 Sapb Appliances. 455 observation and care would suggest, and hence was a question for the jury. *°^ An employee operating a saw in a mill, knowing that the same is unguarded in violation of a statute, assumes the risk of injury from such source. Such a statute is penal and does not change the common law rule as to assixmption of risk. "« Wisconsin. The Wisconsin statute, provides as follows: "No person or corporation shall employ and put to work in any fac- tory, workshop or other place where labor is performed, or in any part of any such place, a larger number of per- sons than can be kept at work there without doing violence to the laws of health. The local board of health shall have power to determine any question arising xinder this provi- sion, and its written determination shall be conclusive upon aU parties to any action or proceeding under the same. The owner or manager of every place where persons are employed to perform labor shall surround every sta- tionary vat, pan or other vessel into which molten metal or hot liquids are poured or kept, with proper safeguards for the protection of his employees, and all belting, shaft- ing, gearing, hoists, fly-wheels, elevators and drums therein which are so located as to be dangerous to em- ployees in the discharge of their duty shall be securely guarded or fenced. Any person or corporation which shall neglect for thirty days after the receipt of written notice from the state factory inspector to provide a suitable place for the persons employed by him to work in or who shall fail to make and maintain such safeguards as this section requires and as said inspector shall specify, shall forfeit not to exceed twenty-five doUars for each offense, and every day's neglect or failure, after a convic- tion hereunder, shall constitute a separate offense." 405. Barclay v. Puget Sound 406. Nottage v. Sawmill Phce- Lumber Co., 48 Wash. 241, 93 nix, 133 Fed. 979, construing Laws Pae. 430, 16 L. R. A. (N. S.) 140. Wash. 1903, p. 40, o. 37. 456 Master and Sebvant. § 193 This statute was amended (cli. 303, Laws 1905) by providing that the fact that such employee continued in the employment with knowledge of an omission to com- ply with the terms of the statute shall not operate as a defense. By chap. 189, Laws of 1899, a further statute was enacted providing for the use of blowers or similar appa- ratus where emery wheels or belts are used, where used without water, where they can be so equipped without impairing the convenient or necessary use thereof, when deemed necessary by the factory inspector or any officer of the bureau of labor. Such act further provides that no emery wheels or grind stones known to be cracked or defective shall be used, nor operated at a greater speed than indicated or guaranteed by the manufacturer thereof. The act provides further the necessary appliance to be constructed and used for the purpose prescribed. It was held that the statute requiring the guarding of machinery applies to such only as is so located as to be dangerous to employees when engaged in their ordinary duties, and that is a question for the jmy.^" Where so located as to be dangerous, the statute requires it to be securely guarded, and failure on the part of the employer in this respect is negligence which will render him liable to an employee who is injured thereby without contributory negligence. ^°^ The statute contemplates that the employer shall exer- cise ordinary judgment in determining whether machinery should be guarded, and where shafting is so located that an employee must necessarily go out of his ordinary course or any course which he might reasonably be expected to take, in order to reach it, ordinary care and prudence on the part of the master does not require it to be guarded. *"' 407. Guinard v. Elnapp, Stout & revolving towards eaeli other, and Co. Co,, 95 Wis. 482, 70 N. W. 671. used to straighten material passing 408. Klatt V. N. C. Foster between them, are not within the Lumber Co., 97 Wis. 641, 73 N. W. statute (sec. 3636j). That section 563. only covers "belting, shafting, gear- 409. Powalske v. Cream City ing, hoists, flywheels, elevators and Brick Co., 110 Wis. 461, 86 N. W. drums." Keena v. American Box 153. Steel rollers in a, machine, Tow Co., 144 Wis. 231, 128 N. W. § 193 Safe Appliances. 457 Although unguarded and defective shafting was sus- pended so high above the worMng floor as to be beyond the reach of servants in the discharge of their ordinary duties thereon, the servants, however, having other duties which requires them occasionally, as the master must have known, to mount and walk upon timbers in the vicinity of the dangerous and unguarded shafting, it was held the 858. The master had furnislied a guard for a gearing. It became dis- placed -without the knowledge of the master either actual or con- structive. The following proposi- tions were determined by the court: (1). That there is a comphance with the statute (sec. 1636j) where the guard furnished is such as is commonly used by ordinarily pru- dent men unless obviously defect- ive. Not required that the guard must afford absolute protection at all times and under all circumstan- ces. (2). That the duty on the part of the master is the exercise of ordi- nary judgment in determining whether machines should be guard- ed, and that in such exercise they shall bring to bear upon the sub- ject ordinary prudence and intelli- gence under the circumstances of each particular case. That unless the employer has reasonable ground to apprehend that an accident might happen to the employee, while engaged in performing his work, there was no breach of duty in failing to provide a guard. (3). That under the statute (Supp. 1906, sec. 1636jj) the fact that an employee continues to work with knowledge that the appliance has not been properly guarded does not show an assumption of the risk. (4). That under the statute (Supp. 1906, sec. 1636jj), where it appears the master had not safely guarded the gearing in the first instance, the fact that such gniard as provided became displaced with- out the knowledge, actual or con- structive, on the part of the master, to the knowledge of the employee, does not exonerate the master. (5). That the statute does not preclude the defense of contributory neghgence. (6) . That the facts in the case were dissimilar from those in Blahnik v. Central Coal Co., 142 Wis. 167, 125 N. W. 317, in that the evidence did not show (the burden of proof being upon the defendant) that the injured em- ployee had the means at hand to fasten the guard in place. Nor authority to shut down the mUl; in other words, that it became his duty to fasten the guard or notify others to do it. In the case referred to, it was held contributory negli- gence on the part of the employee not to have fastened the guard which had become temporarily dis- placed. (7) . Where a master insists that it is not feasible to g^iard danger- ous machinery, within the statute, evidence that a guard was provided after injury to an employee from the exposed machinery, is admis- sible. West V. Bayfield Mill Co., 144 Wis. 106, 128 N. W. 992. 458 Mastbb and Seevant. § 193 master ouglit reasonably to have apprehended that the condition of the shaft endangered the servants, and was within the statute.*^" In the particular case it was held that exposed gearing was so located as to be dangerous to employees in the discharge of their duties, and defendant guilty of negli- gence/" It was stated that the statute and similar act ■. do not give a right of recovery in any case where the plaintiff has assumed the risk or been guilty of contributory negli- gence. ^^^ The act of 1905, however, abohshes assumed risk as a defense.*^' Other cases under this statute were determined upon the question of assumed risk."* Section 1636jj stats. (Laws of 1905, ch. 303) does not enlarge sec. 1636J first quoted so as to include aU appU- ances so located as to be dangerous to employees in the discharge of their duties. A circular saw is not one of the parts of a machine or appliance required to be guarded within the calls of the statute.*" Whether an employer was negligent in f aiUng to guard a set screw on a paper winder, projecting nine-sixteenths of an inch above the surface under the statute, was held a question for the jury. *" Whether a set screw upon a shaft held to be a part of the shaft, was so located as to be dangerous to employees, so that under the statute it was the duty of the owner to guard it, and failure to do so was negUgence, was also a question for the jury. *" 410. Miller V. Kimberly & Clark 414. Berg v. United States Co., 137 Wis. 138, 118 N. W. 536. Leather Co., 125 Wis. 262, 104 N. 411. Hofiman v. Rib Lake W. 60; WUliams v. J. G. Wagner Lumber Co., 136 Wis. 388, 117 S. Co., 110 Wis. 456, 86 N. W. 157. W. 789. 415. Sehmitt v. Seefeld, 139 412. Kreider v. Wisconsin River Wis. 459, 121 N. W. 1360. P. & P. Co., 110 Wis. 645, 86 N. 416. Kreider v. Wisconsin River W. 662; Helmke v. Thilmany, 107 P. & P. Co., 110 Wis. 645, 86 N. W. Wis. 216, 83 N. W. 360. 662. 413. Monaghan v. Northwest- 417. Van de Bogart v. Marl- em Fuel Co., 140 Wis. 457, 122 nette & M. Paper Co., 132 Wis, N. W. 1066. 367, 112 N. W. 443. §193 Safe Appliances. 459 V. IMPROPER USE OF APPLIANCES, Sec. 194. General rule. 195. Application of rule. Master directing use for improper purpose. Use of appliance when not in condition. Draw heads out of repair. Elevator. Hatchway, barrels of lime thrown in. Hose, use of in sport. Ladder improperly fastened. See. Machine created by work- man. Machine, starting of. Machine, use of for dan- gerous purposes. Platform for handling freight, use of by watch- man. Rope, improper fastening to plank. Sliding door, careless use of. Spout in mUl, use of as step. § 194. General rule. Negligence of the master cannot be predicated upon the improper use of an appUance by his servants. If suitable and safe appliances are furnished for doing the particular "work and the employees fail to use them, or they are negli- gently and unskilfully employed, the master is not liable for resulting injury to one of such employees."^ The rule, however, does not apply to all cases of the use of a proper machine or appliance by an inexperienced em- ployee, and especially where the particular manner of its use is directed by the master or by one whom it is the servant's duty to obey.*" Nor is a master who furnishes his servants with a proper scheme of construction, proper materials and proper 418. Duffy V. Upton, 113 Mass. 544; Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483; Hart v. Naum- burg, 123 N. Y. 641, 25 N. E. 385; Curran v. Merchants' Mfg. Co., 130 Mass. 374, 39 Am. Rep. 457; Coll- yer v. Pennsylvania R. Co., 49 N. J. L. 59, 6 Atl. 437; Cleveland, C, C. & St. L. R. Co. V. Brown, 20 C. C. A. 147, 73 Fed. 970; Steinke V. Diamond Match Co., 87 Wis. 477, 58 N. W. 842. 419. Newbury v. Getchel & M. Lumber & Mfg. Co., 100 Iowa, 441, 69 N. W. 743, 62 Am. St. Rep 582. 460 Masteb akd Sebvant. § 195 appliances liable to them for the resxilt of an accident due solely to improper workmanship and a misuse of the appli- ances so furnished. ^^^ And where proper appliances are furnished, while it is the duty of the master to see that they are reasonably fit and safe for the use to which they are to be applied, the servant is not reheved from the exercise of his own judg- ment in the use thereof, and if he puts them to a use for which they are not designed or furnished or subjects them to a strain beyond their capacity to bear, the respon- sibiUty is upon him and not upon the master. *^i Thus, where an employee was injured by the breaking of a derrick caused by a timber which was being hoisted by means thereof, meeting with some obstacle, and extra force was apphed to overcome it, and nothing appeared to show that the apphance was defective or to charge the master with responsibility.*^^ § 195. Application of rule. Where an employee was injured while working in con- nection with a dirt plow and there was provided shives for the cable to work through and he placed the cable around the stanchion of a car instead of through the shive, which, upon the cable being tightened, gave way, it was held the master was not Uable; that his injuries were the result of his using the apphance in an improper manner. *^' And where it was alleged the guy stays of a derrick were insufficient (1) by reason of being too weak to bear the strain; (2) by reason of having become rusted at the point of adjustment to the derrick proper; and it was urged on the part of the defendant that the cause of their breaking was an attempt to lift a stone that had not been loosened from its bed, it was said that the general rule as to the 420. Wyokoff v. Birch, 76 N. N. W. 682; Salisbury v. Press J. L. 646, 71 Atl. 243. Pub. Co., 76 Neb. 849, 108 N. W. 421. Morrison v. Burgess Sul- 136. pMte Fibre Co., 70 N. H. 406, 422. Duffy v. Upton, 113 Mass. 47 Atl. 412, 85 Am. St. Rep. 634; 544. Standard Distilling & Distributing 423. lUinois Cent. R. Co. v. Co. V. narris, 75 Neb. 480, 106 Daniels, 73 Miss. 258, 19 So. 830. § 195 Sai-e Appliances. 461 master's duty in respect to furnisMng appliances applies only to the use for wMcli they are intended. If a servant of his own vohtion apply them to some other use, it is at his own risk and not that of the master. As there was some evidence tending to show that it was customary in such business to use the derrick to ascertain if a stone was loosened, it was a proper question, if such was the fact, for the jury to determine whether the apphance was strong enough to stand the test of a reasonable and proper strain for such a purpose. ^^* It was held a question for the jury whether a metallic waste box in a store, from its location and manner of construction, was an unsafe apphance. It was not defect- ive. It was located near a passageway where other em- ployees had occasion to move. The injury to one such, was caused by an employee, a minor, in puUing downward the heavy door, not observing the injured employee, which struck her on the head. It is clear that the accident happened in the use of the apphance. It could not be said in the improper use, because it was the only manner in which it could be used, but rather, it was used at an inop- portune time. The negUgence, if any, was that of the boy in not observing that the injured employee was in a posi- tion to be thus injured. Something is said about the incompetency of the boy, the complaint charging incompe- tency ; whether there was any proof as to his incompetency is not disclosed. An experienced or perfectly competent person was as Ukely not to observe that a person was in a position to receive injury as such a boy. Incompetency and the employment of an incompetent person with knowl- edge of his incompetency, seems to have been assumed from the single act at the time of injury. This is contrary to all authority. *" Master directing use for improper purpose. If, however, the master directs a servant to use an apphance for a purpose other than which it is intended or 424. Sather v. Ness, 42 Minn. 425. McVey v. Mannheimer 379, 44 N. W. 128. Bros., 129 N, W. (Minn.) 371. 462 Mastee and Servant. § 195 suitable, his responsibility is the same as though the appli- ance had been originally intended for such new use.*^^ Use of appliance when not in condition. If an appliance was used by employees in the absence of one of the guy ropes, and it was not intended by the master to be used while in that condition, and he had furnished suitable materials and ropes to make the appli- ance safe in the first instance, he is not liable to one of the employees for injuries sustained by such improper use.*^^ Drawheads out of repair. It was held that negligence in permitting the drawheads of a flat car to become out of repair, allowing too much play, cannot be made the basis of recovery by an employee wh se foot was caught between the drawheads while n o mting the car, as it could not be anticipated by the master that a danger of that sort should be guarded against. ^^^ Elevator. The rule was applied where an elevator was constructed in a building in a usual manner and was not defective, and injury was occasioned an employee by the act of the engineer in permitting it to ascend untU it struck a beam which caused the rope to break, whereby it fell, and it appeared it had been operated for two years without acci- dent. ^^^ And also where an employee stepped upon the canvas covering of an elevator shaft supposing it to be a solid surface, to perform an act, and the canvas broke precipi- tating him into the shaft. ^^^ 426. Babeoek Bros. Lumber Co. S. W. 710, 23 L. R. A. (N. S.) 301, V. Johnson, 120 Ga. 1030, 48 S. E. 134 Am. St. Rep. 24. 438. 429. Stringham v. Hilton, 111 427. Laragy v. East Jersey N. Y. 188, 18 N. E. 870, 1 L. R. A. Pipe Co., 76 N. J. L. 194, 68 Atl. 483. 1073. 430. Morrison v. Burgess Sul- 428. McGrory v. Ultima Tbule, phite Fibre Co., 70 N. H. 406, 47 A. & M. R. Co., 90 Ark. 210, 118 Atl. 412, 85 Am. St. Rep. 634. § 195 Safe Appliances. 463 A suitable door having been provided by the master leading into an elevator shaft, he is not responsible for the improper manner of its use. The duty to keep it closed when the elevator is not in use, is upon the employee.^" Hatchway, barrels of lime thrown in. Where an employee working upon a vessel was injtired by being thrown down a hatchway by contact with a barrel of lime which other employees were loading on the vessel, a judgment in favor of the plaintiff was sustained not on the ground that the hatchway was left unprotected but as stated by the court, "The defendant did owe to deceased the duty of not negUgently throwing down the hatchway." What principle was applied is not stated. The place was intrinsically safe, was being used for a proper purpose. The negligence, if any, was that of coemployees in an improper use. * ' ^ Hose, use of in sport. Where an apprentice in play seized and used a com- pressed hose inflicting injuries therewith upon an em- ployee, the master was not liable for such an improper use of an appliance which was safe and suitable for the work in which it was designed to be used. ^'^ Ladder improperly fastened. The rule was applied to a ladder fastened by workmen, which shpped by reason, as alleged, of the nails which held it being too short. ^'* Machine created by workmen. Where a machine which was the cause of the injiiry to an employee, was not furnished by the master, but was a device created by fellow-workmen for their own conven- ience, against the use of which the superintendent objected 431. Gobeil v. Ponemali MiUs, viUe & N. R. Co., 128 Ky. 826, 69 Atl. (R. I.) 684. 110 S. W. 296, 16 L. R. A. (N. S.) 432. Davis v. Oceanic Steam- 1052. ship Co., 89 Cal. 280, 26 Pao. 827. 434. Maiming v. Manchester 433. BaUard's Adm'x v. Louis- MiUs, 70 N. H. 582, 49 Atl. 91. 464 Master and Servant. § 195 and directed it to be not used, the master was not liable for tbe careless use of a machine not necessarily dangerous if properly used.*'' Machine, starting of. Where a boy while cleaning machinery in a mill was injured by the negUgence of a fellow-servant in starting the machinery, his injuries were due to an improper use of the machine.*'* Machine, use of for dangerous purposes. Where servants of a common master were employed upon the same work, and one of them, without authority from his employer, directed the other to use a machine for a dangerous and improper purpose for which it was not intended or provided, and he comphed and was injured, it was held there was no principle of law which would make the master responsible.*" Platform for handling freight, use of by watchman. Where a watchman in a railroad yard in the night time ran along a platform appropriated for handhng freight, in an effort to prevent a collision of cars, and he was injured by contact with trucks left on such platform, it was said, if the platform had been set apart or appropri- ated to such use, it woidd have been the duty of the com- pany to keep it clear for that purpose. The company was not bound to anticipate that the watchman woidd use it to run upon in an emergency.*'^ Rope, improper fastening to plank. The rule was applied and the master held not hable for the manner in which the timber boss in a mine fastened the rope to a plank which was being lowered into the mine, and which escaped from the rope and fell upon and injured 435. CaUaway v. AUen, 12 437. Felch v. AUen, 98 Mass. C. C. A. 114, 64 Fed. 297. . 572. 436. Curran v. Merchants' Mfg. 438. Hamilton v. Richmond & Co., 130 Mass. 374, 39 Am. Rep. D. R. Co., 83 Ga. 346, 9 S. E. 670, 457. § 195 Sapb Appliances. 465 an employee, it appearing the master had ftirnished proper tools and the neglect to use them was that of a fellow- servant.*^' Sliding door, careless use of. It was strongly declared that the master's duty extended to seeing that his mechanics who constructed his apph- ances actually used skiU and care in doing their work, yet it was held no liabiUty rested upon the master for injuries to a servant caused by the careless handling of an appU- ance by a feUow-servant. This was said in reference to a sliding door which fell causing injury to an employee.**" Spout in mill, use of as step. Where a miller employed in a miU stepped upon a spout used to convey grain in process of manufacture, from one place to another, and it gave way under his weight causing it to fall, negUgence on the part of the master did not appear. It was said, it (the spout) did not give way and produce the injury, because of any defect ia its construc- tion, or because it did not possess the requisite strength to perform the uses for which it was intended, and to which it was put. The defendant was not bound to anticipate that it would be used to bear the weight of employees or serve the ofS.ce of a ladder or platform.**^ 439. Erickson v. Victoria Cop- 440. Collyer v. Pennsylvania per Min. Co., 130 Micli. 476, 90 R. Co., 49 N. J. L. 59, 6 Atl. 437. N. W. 291. 441. Schmidt v. Leistekow, 6 Dak. 386, 43 N. W. 820. 1 M. & S. — 30 466 Master and Servant, § 196 VI. SERVANTS SELECTING UNFIT APPLIANCES. See. Sec. 196. General rule. Naphtha, use of. Blocking. Nut on bolt. Bucket. Pike poles. Chains. Plank. Counter-balance. Ropes. Coupling pin. Side set. Flasks for moulds. Skids. Guides on machine. Spikes and hammers. Ice tongs. Tools in general. Incompetent servant. Trenches, material for shor- Ladder. ing. Metal cutter. Triangle on vessel. § 196. General rule. A master who provides and keeps proper tools for the use of his servants, whose duty it is to select such as they require, is not generally responsible if a servant voluntarily uses a tool which has become obviously defective and unfit for use, and is injured by reason of such defects. ^*^ In principle this rule or exception to the general rule of the master's duty in respect to appliances furnished is practically the same as that subsequently discussed, relat- ing to the selection of material by a servant for use in con- structing staging, scaffolds and the like. This doctrine is quite generally acknowledged and approved by the courts. The question, however, is sometimes involved, whether the employee making the selection, or directing the use, is a vice principal and if so the master becomes responsible for his acts. The subject is thus complicated, and also from the further fact that the rule as to who are vice-principals is not the same in the several states. An intelligent understand- ing of the subject can only be gained by a reference to the determination of the courts of the several states. It was 442. Hefferen V. Northern Pac. 31, 51 N. W. 350; Pierson v. Citi- R. Co., 45 Minn. 471, 48 N. W. 1, zens' T. & T. Co., 141 Wis. 117, 526; Rawley v. Colliau, 90 Mich. 123 N. W. 642. § 196 Sa^e Appliances. 467 held that the rule which exonerated the master where he had furnished an abundance of suitable material from which the servants are to select, is not complied with where good and bad material are mingled in a common mass. That it is the duty of the master, where danger is con- nected with the proposed use, to cause proper inspection. The company was held liable for the selection of a defective plank upon which a temporary track was laid, which broke injuring an employee. ^^' Blocking. Where a foreman used blocking consisting of pieces of wood placed one on top of the other, as a means in con- nection with other appUances in raising a heavy body, and by reason of the insecure manner in which such blocks were placed they canted or tipped and thereby injury was caused to one of the workmen, it was held negligence was not imputable to the master in furnishing an improper appliance. ^*^ Bucket. Negligence by reason of a defective pin, which secured the wheel of a bucket used in unloading salt from a vessel, was chargeable to the master although it appeared he fur- nished a number of buckets to take the place of one that became defective and that the duty of operating as well as repairing or substitution was committed to the engineer. It was held that the engineer was a vice-principal in re- spect to the condition of the appliance. *^^ Chains. A teamster was injured by the breaking of a smaU chain while being used for the purpose of straightening a cable. The chain was doubled two or three times and one end attached to the cable and the other to the evener, 443. Lafayette Bridge Co. v. 444. Robinson v. Blake Mfg. Olsen, 47 C. C. A. 367, 108 Fed. 335, Co., 143 Mass. 528, 10 N. E. 314. 54 L. R. A. 33. The doctrine thus 445. Morton v. Zwierzykowski, last declared does not generally pre- 192 lU. 328, 61 N. E. 413. vail, however. 468 Master and Seevant. § 196 and it broke by the horses making a sudden lunge, thus causing a severe strain upon the chain. The chain was selected by the employee, but it does not appear whether by direction of the employer or otherwise. The question of the master's Uabihty, on the ground of fiu-nishing an unsafe appUanee, was held for the jury.^*^ Where a servant was injured by a defective chain which in proper condition would have been suitable, and a fellow- servant using such care as might be expected of him, did not discern the defect, the master was not excused by the fact that there were on the spot other chains ftirnished by it, which were smtable and might have been selected.*" The rule was previously stated in general terms by this court, however, that the employer having furnished a suffi- cient supply of suitable ropes, belts and chains for use in connection with a crane, it is not hable for the conse- quences of the selection therefrom by a servant of one that is insufficient for the particular purpose for which used.**' Counter-balance. It appearing that employees in defendant's machine shop when operating lathes to turn crank shafts of Ught weight, used anything they saw fit as a counter-balance, and that a piece of iron weighing forty pounds so used, but improperly secured, had blown off and struck an employee, and also in tiirning shafts of a heavier weight an appUance particularly designed for a covinter-balance was used, it not appearing whether such appliance was used in turning shafts of a hghter weight, it was held that the fault, if any, was that of a fellow-servant and not that of the master in not providing a suitable apphance.**' 446. Martin v. Gould, 103 448. Morrison v. WHttier Minn. 467, 115 N. W. 276. Mach. Co., 184 Mass. 39, 67 N. E. 447. Cushing v. G. W. & F. 646. Smith Iron Co., 194 Mass. 310, 80 449. Faber v. Carlisle Mfg. N. E. 596. Co., 126 Pa. St. 387, 17 Atl. 621. § 196 Safe Appliances. 469 Coupling pins. A railroad company having furnislied a sufficient num- ber of coupling pins is not liable for the selection and use of an improper one by one of its servants. ^^^ It was held, however, by another court, that a coupKng hnk selected by servants other than the one using it, was such an appUance as required the master to see that the one selected was reasonably safe.'*" It was said that the manner of using foreign cars and its own, by a railroad company, may be left to competent serv- ants, and when proper pins for coupling are supphed, the failure to use them properly, or to replace one too short by another, is the fault of such servants. ^" Flasks for molds. The rule was applied where injury was occasioned a laborer in a foundry who was called upon frequently to assist in running out molds, by the escape of molten metal due to the use of an imperfect flask, and it appeared that numerous flasks were provided and there was no require- ment to use the faulty one.^^' Guides on machines. Where guides for a wire winding machine were worn and loose causing the machine to vibrate and the arm of the employee to be drawn upon the arbor, and they were selected by the employee, and there were none but what were so worn, a flnding of negligence on the part of the master was sustained.*^* 450. Young v. Boston & M. 452. Thyng v. Fitchburg R. R. Co., 168 Mass. 219, 46 N. E. Co., 156 Mass. 13, 30 N. E. 169, 624; EUsbury v. New York, N. H. 32 Am. St. Rep. 425. & H. R. Co., 172 Mass. 130, 51 453. Ketoe v. AUen, 92 Mich. N. E. 415, 70 Am. St. Rep. 248. 464, 52 N. W. 740, 31 Am. St. 451. LouisviUe, N. A. & C. R. Rep. 608. Co. V. HoweU, 147 Ind. 266, 45 N. 454. Peterson v. Moi^an Spring E 584. Co., 189 Mass. 576, 76 N. E. 220. 470 Masteb and SeevajStt. § 196 Ice tongs. The rule was applied to ice tongs of a style less perfect than another which the employee naight have chosen.^" Incompetent servant. The rule was apphed where a foreman selected, from a nimiber of men, to assist a blacksmith, one who was incom- petent.^'* Ladder. Where the master supplies proper appliances, he is not responsible because a servant is injm^ed through the selec- tion by the servant of an appUance not adapted to his work. So held in respect to a ladder.^" Metal cutter. Where an employee was injured by a piece flsdng off the head of a metal cutter used in defendant's foundry, while he was cleaning castings, it was held the negligence, if any, was in the selection of an improper tool by a fellow- servant. ^'^ Naphtha, use of. An accident was caused by using naphtha upon cotton waste in cleaning the inside of a tank, the fumes of which were hable to explode upon contact with a hghted lamp, in the hands of a workman, its use being directed by the superintendent. Naphtha was furnished for use in cleaning machines, but not for cleaning the tank. It was held the danger to which the employee was exposed was a transi- tory one, existing only on the single occasion and without fault of the master. That it was the act of the superin- tendent in merely selecting a dangerous material provided 455. Wheaton v. Wagner Lake 457. Guggeaheim Smelting Co. I. & C. Co., 151 Mich. 100, 114 v. Flanigan, 62 N. J. L. 354, 41 N. W. 853. Atl. 844, 42 Atl. 145. 456. HUton v. Fitchburg R. R., 458. Needham v. Stone, 186 73 N. H. 116, 59 Atl. 625, 68 L. Mass. 565, 72 N. B. 80. R. A. 428. § 196 Sape Appliances. 471 for some other but proper purpose, for which the master was not liable/^^ Nut on bolt. The foreman of a gang, in selecting an improper or im- suitable nut for a bolt, from a sufficient quantity suitable for use, the bolt being used to hold a large steel plate in suspension while work was being done upon the plate, was held a fellow-servant of an employee injured by reason of the nut coming off the bolt.**" Pike poles. The rule was applied to a pike pole furnished to elec- tric linemen to be used in removing poles. ^" Plank. And to a defective plank to be used as a gangway for a truck in unloading freight cars.^^^ Ropes. Where the master supphed and had on hand a sufficient supply of ropes strong enough for the work imder the con- trol of his foreman, it was held the master was not hable for injuries caused to one of his employees caused by the breaking of a rope selected by the foreman, which the fore- man by an error of judgment directed to be used instead of another rope, which the workmen desired to take from the supply furnished by the master. ^^' Where a servant is required to select a rope from a num- ber of ropes at the servant's command, and the servant selects one that is apparently sound and sufficient for the intended purpose, but which in fact is defective, and the master knows or by the exercise of ordinary care ought to 459. Meehanv. Spiers Mfg. Co., 462. Fewell v. Southern R. Co., 172 Mass. 375, 52 N. E. 518. 105 Va. 1, 52 S. E. 689. 460. Flaws v. West Bay City 463. Vogel v. American Bridge Shipbuilding Co., 132 Mich. 169, Co., 180 N. Y. 373, 73 N. E. 1, 70 92 N. W. 1099. L. R. A. 725 ; The Persian Monarch, 461. Towne v. United Electric 5 C. C. A. 117, 55 Fed. 333. G. & P. Co., 146 Cal. 766, 81 Pac. 124, 70 L. R. A. 214. 472 Masteb and Servant. § 196 know of the defect, he will be liable for an injury resulting from such defect, but if the servant selects a rope, obvi- ously and patently unsound or unsuitable, he wiU not be exercising the care required of him, and the master will not be liable. ■•** If the master intrusts the duty of selecting simple appliances such as a rope to servants from a supply on hand, he may not be liable for the result of an improper selection, but if he makes such selection himself he may be so liable. "^ The rule was appUed to a rope selected by workmen from a pile of ropes at hand. *^* The rule, it was stated, would apply to the selection of the rope on the block of one of the falls, by which a staging was suspended, which was defective, and insufficient. If the master had provided a supply of suitable blocks from which three falls of the length the painters were directed to get, could have been selected, but where there were only three falls available, including the defective one, it was held the employer could not escape liability because of the selection.^" An employee was injured by the falling of a machine which was suspended by a rope, while in the act of moving the machine. The rope was selected by the foreman. It was said, it was the duty of the master to exercise reasona- ble care in providing reasonably safe ropes to be used by its servants in handling the appliance, but that duty was fuUy discharged if the defendant had furnished a suffi- cient supply of ropes and competent men to use them, and it was understood the servants themselves were to select such ropes from time to time as the particular occasion demanded.*''* 464. Green v. Sansom, 41 Fla. 467. Donahue v. C. H. Buck & 94, 25 So. 332. Co., 197 Mass. 550, 83 N. E. 1090, 465. Geldard v. MarshaU, 47 18 L. R. A. (N. S.) 476. Oreg. 271, 83 Pac. 867, 84 Pac. 803. 468. Amburg v. International 466. Cronin v. RusseU Wheel Paper Co., 97 Me. 327, 54 Atl. 765. & Foundry Co., 132 Mich. 500, 93 N. W. 1070. §196 Sai-e Appliances. 473 Other cases relating to selection of ropes are noticed in the note below. "' 469. An employee having ex- amined a rope furnislied by the master, finding no defects, has no claim for injuries received by the breaking of such rope though caused by dry rot. McGregor v. Grand Trunk Elevator Co., 129 Mich. 469, 89 N. W. 332. The prevaiUng rule was held not to apply where the foreman sent an employee to get a rope, and he brought a defective one which was used by the foreman. It was said the foreman was bound to inspect it. Jasper v. Bunker HiU & Sullivan M. & C. Co., 50 Wash. 570, 97 Pac. 743. Also where a foreman was directed to move a barge from the water, without di- rections as to the means, and he selected from that which the em- ployer had, an unsafe rope, which broke, causing injury to an em- ployee assisting in the work. Lund V. Hersey Lumber Co., 41 Fed. 202. An employer who has always on hand new ropes which employees can get whenever they think the ones in use to be unsafe, is not responsible for injury to an em- ployee caused by the rope break- ing, when it appears the ones pro- vided were of the best quality and were entirely safe until frayed by use. Cregan v. Marston, 126 N. Y. 568, 27 N. E. 952, 22 Am. St. Rep. 854. Where the master placed a foreman in charge of erecting tac- kle, and the foreman used a dis- carded rope which broke and injured one of the workmen under him, the master was held liable for failure to exercise reasonable care in providing safe instrumentalities. Cal Hirsoh & Sons Iron & Rail Co. V. Coleman, 227 111. 149, 81 N. E. 21. It was said there could be no recovery against the master if a supply of ropes were furnished, in lifting a heavy shaft, some of which were sufficient, and an unfit one was selected by a feUow-servant, or if the cause of breaking was the manner in which it was put upon the shaft, whereby it was cut and weakened. Preseott v. Ball Engine Co., 176 Pa. St. 469, 35 Atl. 224, 53 Am. St. Rep. 683. Where an employee was injured by the fall of a derrick by the breaking of a rope which stayed it, it was said: "Properly to use pulleys, blocks, ropes and other ordinary tools and appliances which have been fur- nished by a master to the workman employed upon a derrick, is a part of the duty of the workman. It is incidental to the management and use of the derrick. In working with a derrick the foreman and his assistants are feUow-servants; and the master is not responsible to any one of them for the negligence of any other in the use of materials which the master supplied." It appeared there was a coU of new rope at hand, and other implements suitable and sufficient for the work. The following cases were cited: McDermott v. Boston, 133 Mass. 349; KeUey v. Norcross, 121 Mass. 508; Colton v. Richards, 123 Mass. 484; Johnson v. Boston Tow Boat Co., 135 Mass. 209, 46 Am. Rep. 458; Moynihan v. HiUs Co., 146 Mass. 586, 16 N. E. 574, 4 Am. St. 474 Master aistd Servant. § 196 Side set. The rule was applied where a defective tool for cutting iron, called a side set, was used, and injury was occasioned to the son of the machinist using it, by a fragment of iron being thrown from the battered face of such tool when struck by a powerful hammer. "" Skids. A master was not responsible to a member of a shipping gang for defects in the construction of skids on which such gang was moving it on beams, the materials having been selected and the skids built by them under general orders from the master, not limiting materials nor mode of con- struction. *'i Nor was he responsible where sMds were used between the cars in transferring freight to a freight car through sev- eral freight cars, the master furnishing sufficient material for placing cleats on the skids to keep them from sUp- ping.*'^ The court held that in the selection of an improper sMd for use in unloading rails, it being too short, by the fore- man, there being others furnished by the company that were su table and proper, whether such foreman thus represented the master as a vice principal or was a fellow- servant of an employee injured as alleged by reason of the use of such defective skid, was a question for the jury.*'* Sp'kes and hammers. Where the master furnished plenty of good spikes and hammers, the negligence, if any, of the sect^^on men in using o d spikes and an old hammer in laying steel, was Rep. 348; Daley v. Boston & A. 471. Cunningham v. Ft. Pitt R. Co., 147 Mass. 101, 16 N. E. Bridge Works, 197 Pa. St. 625, 47 690; McKinnon v. Norcross, 148 Atl. 846. Mass. 533, 20 N. E. 183, 3 L. R. A. 472. Hayes v. New York, N. 320. See also Duffy v. Upton, 113 H. & H. R. Co., 187 Mass. 182, Mass. 544. 72 N. E. 841. 470. Hefferen v. Norttem Pae. 473. Great Northern R. Co. R. Co., 45 Minn. 471, 48 N. W. 1, v. McLaughHn, 17 C. C. A. 330, 526. 70 Fed. 669. § 196 Safe Appliances. 475 not chargeable to the master. The use of the spikes in such work of itself cannot be said to be negligence.*'* Tools in general. Where the foreman directed the use of a shovel, -which was not a proper tool for the purpose, in raising a tele- graph pole by means of a hoist, and the pole fell, it was held an employee injured thereby could not recover from the master in the absence of proof of neglect on his part to furnish tools within convenient reach.*" An employee who prefers to use tools of his own selection instead of those furnished by the master, cannot recover for injuries received in their use upon the groim.d of the master's failure of duty to fvirnish him with reasonably safe appUances.*'^ Trenches, material for shoring. Where a person employed to dig a trench was injtired by the caving in of the sides of the trench, it was said : "His employer was not liable if he furnished the materials for sheathing or shoring up the sides of the trench, and the materials were not used for that purpose by the persons employed by him to superintend the digging of the trench. The superintendent of the work and the plaintiff as a laborer upon the work were feUow-servants, and the duty of such superintendent in using the means and apphances provided for safely and properly carrying on the work was that of a servant engaged in the same business with the plaintiff, even if he acted as the repre- sentative of the master in furnishing such means and appliances "477 474. Gauges v. Fitchburg R. 476. Denver & R. G. R. Co. v. Co., 185 Mass. 76, 69 N. E. 1063. Sporleder, 39 Colo. 142, 89 Pac. 55. 476. Carroll v. Western Union 477. Flynn v. Salem, 134 Mass. Tel. Co., 160 Mass. 152, 35 N. E. 351; Floyd v. Sugden, 134 Mass. 456. 663. 476 Masteb and Sbevant. § 196 Triangle on vessel. Where the master directs his employees, such as a mate upon a vessel, to make an appliance (a triangle) out of particular boards which are unsuitable, and it is so made, the master will be liable to an employee (a seaman) injured by reason of its insufficiency.*'* 478. Kalleck v. Deering, 169 Mass. 200, 47 N. E. 698. U97 Sapb Appliances. 477 VII. STAGING AND SCAFFOLDS. See. 197. Not a place of work but an appliance. 198. Duty performed by fumisb- ing suitable materials and competent workmen. 199. Master must provide suffi- cient material tbat is suitable. 200. Rule where representative of master plans and super- intends. 201. Rule where furnished as a complete structure. 202. Rule where complete appli- ances are ftimished for construction of staging. 203. Permanent scaffold. 204. Knowledge of master of im- perfect construction. 205. Where master directs use of unsuitable material. 206. Scaffold built by independent contractor. 207. Scaffold constructed by em- ployee injured. 208. Scaffold constructed under direction of master's fore- see. 209. Scaffolds known to be defect- ive by vice principal direct- ing its use. 210. Scaffold designed for other purposes than ordinary use. 211. Temporary uprights used to support permanent tie beams. 212. Employees working near but not upon. 213. Taking down defective scaf- fold. 214. Scaffold, built by others, as place to work. 215. Effect of rule of union. 216. Rule in Illinois. 217. Rule in North Carolina. 218. Rule in Michigan. 219. Rule in Missouri. 220. New York labor law. Pleading. Temporary staging in room. Master's duty as absolute. Construction of "wood structure." Master liable where defect not obvious. 221. Ohio statute. § 197. Not a place of work but an appliance. In treating this branch of the subject we meet not only VTith direct conflict as to the personal duties of the master, but great confusion in the appUcation of the doctrine declared. In many of the states it is held that a staging or scaffolding erected for workmen is not a place in which their work is to be done, within the meaning of the rule requiring the master to furnish his servant a suitable place 478 Master and Seevant. §198 to do his work, but that it is an appKance or instrumen- tality by means of which the work is to be done. ^'* § 198. Duty performed by furnishing suitable materials and competent workmen. It is also the rule in those states that where the master does not undertake the duty of fvirnishing or adopting the appUances by which the work is to be performed, but this duty is entrusted to or assumed by the workmen them- selves, within the scope of their employment, he is exempt from responsibihty, if suitable materials are furnished and suitable workmen are employed by him, even if they negli- gently do what they undertake. ^^^ 479. Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017; Oelschle- gel V. Chicago & G. W. R. Co., 73 Minn. 327, 76 N. W. 56, 409; Lambert v. Missisquoi Pulp Co., 72 Vt. 278, 47 Atl. 1085; McDonald V. Hoffman, 10 Cal. App. 515, 102 Pae. 673. See also Bailey v. Swal- low, 98 Minn. 104, 107 N. W. 727. 480. Kelley v. Norcross, 121 Mass. 508; Colton v. Richards, 123 Mass. 484; KUlea v. Faxon, 125 Mass. 485; Clark v. Soide, 137 Mass. 380; McKinnon v. Norcross, 148 Mass. 533, 20 N. E. 183, 3 L. R. A. 320; Mulchey v. Methodist Society, 125 Mass. 487; Bradbury v. Goodwin, 108 Ind. 286, 9 N. E. 302; Benn v. NuU, 65 Iowa, 407, 21 N. W. 700; Pfeiffer v. Dialogue, 64 N. J. L. 707, 46 Atl. 772; Robichaud V. MendeU, 74 Atl. (N. H.) 1049; Olsen V. Nixon, 61 N J. L. 671, 40 Atl. 694; PeUerin v. International Paper Co., 96 Me. 388, 52 Atl. 842; Stevens v. Strout, 200 Mass. 432, 86 N. E. 907; Kinuner v. Weber, 151 N. Y. 417, 45 N. E. 860, 56 Am. St. Rep. 630; Forbes v. Dunna- vant, 198 Mo. 193, 95 S. W. 934; Thompson v. City of Worcester, 184 Mass. 354, 68 N. E. 833; Hove- land V. National Blower Works, 134 Wis. 342, 114 N. W. 795, 14 L. R. A. (N. S.) 1254; Maughmer v. Bering, 19 Tex. Civ. App. 299, 46 S. W. 917; McCarthy v. Claflin, 99 Me. 290, 59 Atl. 293; Kennedy v. Spring, 160 Mass. 203, 35 N. B. 779; Marsh v. Herman, 47 Minn. 537, 50 N. W. 611; Eraser v. Red River Lumber Co., 45 Minn. 235, 47 N. W. 735; Willis v. Oregon Ry. & Nav. Co., 11 Oreg. 257, 4 Pac. 121; Chambers v. American Tin Plate Co., 64 C. C. A. 129, 129 Fed. 561; Phoenix Bridge Co. v. Castleberry, 65 C. C. A. 481, 131 Fed. 175; Kerr-Miirray Mfg. Co. v. Hess, 38 C. C. A. 647, 98 Fed. 56; CaUan v. BuU, 113 Cal. 593, 45 Pac. 1017; Lang v. Bailes, 125 N. W. (N. Dak.) 891. Where in building staging to be used to aid in the erection of a railroad bridge, a piece of material was selected from a mass of such furnished by the mas- ter by a fellow-servant, which was insuflcient from being knotty and broke from such cause, whereby a workman was injured, it was held the master was not liable. That it § 199 Safe Appliances. 479 § 199. Master must provide sufficient material that is suitable. The master, in order to escape liabihty, where his servants are to select the materials from a quantity fur- nished, must furnish proper materials, and if he fails to offer such as are proper and safe, or if improper and unsafe materials are selected by his permission, he will be liable for injuries that may be caused his servants, by the faU of such staging due to such defects. "^ So the master must furnish sufficient material that is suitable, in order to be exempt from responsibility; and where he furnished no more brackets than were needed to support a staging and one was defective, which broke, it was held the master could not escape Uabihty on the ground that he had furnished a sufficient number of safe and proper brackets, and hence not held for the negligence of a fellow-servant in selecting a defective one for use. ^^^ And it seems to have been held that the master is re- lieved from responsibility only when aU the supply is fit. **^ was not his duty to supervise the which were defective having been selection of every stick from the spliced and the splicing concealed mass he had furnished. This was by paint, for use. Lee v. H. N. the duty of servants. He had Leighton & Co., 129 N. W. (Minn.) performed his duty when he had 767. An employee upon a tempo- furnished an abundance of mate- rary staging, constructed or placed rials from which his servants by another servant, upon barrels could select what was needed. Ross as a support for the planks, and V. Walker, 139 Pa. St. 42, 21 Atl. who was injiu-ed by the tipping of 157, 159, 23 Am. St. Rep. 160. the planks caused by their being See also Dewey v. Parke, Davis Co., placed upon some rubbish or chips, 76 Mich. 631, 43 N. W. 644. had no ground for recovery against The general rule was recognized the master either at common law that where the workmen are or under the Massachusetts stat- required to make their own selec- ute. O'Connor v. Neal, 153 Mass. tion from a mass provided by the 281, 26 N. E. 857. master, the master is not responsi- 481. Dunleavy v. Sullivan, 200 ble for an improper selection Mass. 29, 85 N. E. 866. therefrom, suflQcient of suitable 482. Rosseau v. Deschenes, 203 material having been thus provided, Mass. 261, 89 N. E. 391. but in the particular case, it did not 483. FarreU v. Eastern Mach. so conclusively appear, but on the Co., 77 Conn. 484, 59 Atl. 611, 68 contrary, planks were furnished L. R. A. 239, 107 Am. St. Rep. 45. 480 Master and Servant. § 200 And it was held by the New Jersey court that the master was liable where his superintendent selected planks for skids, which were defective, although the master had furnished a sufficient number that were sound ;^*^ while the New Hampshire court held that the mere fact that the selection was made by a foreman did not charge the master with responsibility.*^^ The furnishing by a master of inch boards instead of two inch plank for a scaffold, is not per se neghgence where enough are furnished and the scaffold may be made reasonably safe by doubling them. *'* § 200. Rule where representative of master plans and superintends. The ride was stated to be that where the employee in authority representing the master imdertakes to plan a scaffold and to superintend its construction by ordinary unskilled laborers, such person thinks for the master, and the servant who uses it does not take the risks of defects of design. If, however, the master deUver to such laborers materials well suited to that purpose, leaving it to their discretion to devise the plan of so simple a contrivance as they proceed with the work, a servant injured in its use cannot recover therefor from the master, and this is true whether the defect was of plan or construction. In either case the injmy woidd be imputable to the neghgence of fellow-servants. **' 484. Heck v. International 512, 97 N. W. 378. And also to the Smokeless Powder Co., 77 N. J. L. construction of a moveable plat- 4, 71 Atl. 150. form to be used in connection with 485. Robichaud v. MendeU, 74 the construction of a railroad Atl. (N. H.) 1049. embankment. Fukare v. Kerbaugh, 486. Lockwood v. Tennant, 137 72 N. J. L. 254, 61 Atl. 376. And Mich. 305, 100 N. W. 562. also to a partition, constructed by 487. Blackman v. Thomson- the workmen themselves, under Houston Electric Co., 102 Ga. 64, a trestle, to separate pUes of broken 29 S. E. 120. The rule as stated, rock and sand dumped for use in applied to a hoist used for the pur- making a concrete foundation, pose of raising material to an upper Galow v. Chicago, M. & St. P. R. story of a building. Gittens v. Co., 65 C. C. A. 507, 131 Fed. 242. WiUiam Porten Co., 90 Minn. And also to boards used as a step § 201 Sape Appliances. 481 § 201. Rule where furnished as a completed structure. If the master undertakes to furnish a staging as a completed structure, he is responsible for its reasonably safe condition. ^** Or if he personally supervises and directs its construction, or fails to provide suitable and sufficient material for its construction by his workmen, for themselves, or if he negligently hire incompetent men to construct it, then he may become liable for defects therein. *^^ Where, however, an employer had furnished sufficient materials and had employed competent carpenters to construct a scaffold to be used by them in putting the cornice upon a building, and the same scaffolding was afterwards used by painters hired to paint the cornice, and wMle being so used by them it broke, injuring one of them, it was held the master was not hable; that his duty had been performed in selecting proper materials and the employment of competent servants. The rule in respect to a completed structure was not applied. *'" to a lumber pile. Fraser v. Red 488. McCarthy v. Claflin, 99 Me. River Lumber Co., 45 Mimi. 235, 290, 59 Atl. 293; Brady v. Nor- 47 N. W. 785. Where an employee cross, 172 Mass. 331, .52 N. E. was injured by the faU of a scaffold, 528; Cheatham v. Hogan, 50 Wash, the rule was recognized that if the 465, 97 Pac. 499, 22 L. R. A. (N. S.) injury was caused by the negligent 951; Chambers v. American Tin act of any of the other men em- Plate Co., 64 C. C. A. 129, 129 ployed as laborers or bricklayers Fed. 561; Phoenix Bridge Co. v. upon the building, they being Castleberry, 65 C. C. A. 481, 131 co-employees, their negligence was Fed. 175; CaUan v. Bull, 113 Cal. a risk assumed; but the exception 593, 45 Pac. 1017; Barkley v. South was stated that if the defendants Atlantic Waste Co., 149 N. C. as contractors were present and 287, 62 S. B. 1073. superintended the defective scaf- 489. Brady v. Norcross, 172 fold as to material and manner of Mass. 331, 52 N. E. 528; Bour- construction, and personally di- bonnais v. West Boylston Mfg. rected the employee to use it, then Co., 184 Mass. 250, 68 N. E. 232; the rule of co-employees was not Kelley v. West Boylston Mfg. Co., applicable. It then became the 184 Mass. 250, 68 N. E. 232. defendant's personal negligence. 490. Hoar v. Merritt, 62 Mich. Stevens v. Howe, 28 Neb. 547, 44 386, 29 N. W. 15. N. W. 865. 1 M. & S.— 31 482 Master and Servant. §§202-205 § 202. Rule where complete appliances are furnished for construction of staging. In the construction of a staging by painters for then- own use, where they are to select complete and permanent apphanees (not alone material), furnished by the master for use in such construction, the master's duty at common law as well as vmder the Massachusetts statute, is to pro- vide such as are reasonably safe. This was said with refer- ence to a rope used to sustain a suspended staging.*" § 203. Permanent scaffold. Where a permanent scaffold was erected about a Une of shafting in a mill, it was held the duty of the master to exercise proper care to maintain it reasonably safe, and his duty in this respect was not fully performed by the em- plojrment of a mill architect. His duty required proper inspection after the scaffold had been again put in service after a change in the manner of support. *^ ^ § 204. Knowledge of master of imperfect construction. Where a staging over a machine had been insecurely constructed and fastened, and remained in that condition for a sufficient length of time to charge the master with knowledge of the plan of construction, he was deemed to have ratified, if not originally adopting it, and was held negligent both in the manner of construction and in his failure to warn an employee of the danger from a plank faUing therefrom upon him.*'' § 205. Where master directs use of unsuitable material. If the material used in erecting a scaffold is bad, and the master knew it, but directed the material to be used, he is Uable to his workmen, who, being themselves in the exercise of ordinary care, are thereby injured. But if the workmen ought to have detected the defect, or if it was 491. Donahue v. C. H. Buck & 492. Cole v. Warren Mfg. Co., Co., 197 Mass. 550, 83 N. E. 1090, 63 N. J. L. 626, 44 Atl. 647. 18 L. R. A. (N. S.) 476. 493. Vaisbord v. Nashua Mfg. Co., 74 N. H. 470, 69 Atl. 620. 205 Safe Appliances. 483 due to his (the workman's) own fault, or it is that of his fellow-workman, the master is not responsible. But the duty of the master in this respect is not to be avoided by delegating it to another, whether to a fellow-servant of the injured employee or to a contractor, if the means furnished for doing the work was defective.*^* Those servants who are authorized to select the mate- rial, not out of a mass fiu-nished, but particular material, represent the master, while those who adjust and use the staging are fellow-servants. ^'* Thus, where one having superintendence under the Massachusetts Employer's Liability Act, directed an employee to use a ledger board which was in fact obviously defective and unfit, without inspecting it or having it inspected, it was said to be as much an act of negligence as to inspect it without discovering the defect, and the liability of the master for an injvuy to an employee caused by such defect was sustained. *^^ If he simply hires the men under his direction, giving them no charge or responsibiUty in regard to the result to be accomplished or appliances to be used, the responsibil- ity remains with him. When the preparation of the appliance is neither intrusted to nor assumed by fellow- servants, the master may be guilty of negligence if defect- ive appliances are furnished, even though the workmen are engaged in their preparation. This was stated in reference to an insecure scaffold not built under the per- sonal supervision of the master, but as to which he exercised a general superintendence and directed what material should be used. "' Where, however, an employee was injured by falling from a staging upon the roof of a house, which staging was put up for the purpose of building a chimney, and it 494. Richards v. Riverside Iron- & Foundry Co. v. Sawyer, 7 Kan, works, 56 W. Va. 510, 49 S. E. 437; App. 146, 53 Pac. 90. Stanwick v. Butler-Ryan Co., 93 496. Rapson v. LeigMon, 187 Wis. 430, 67 N. W. 723. Mass. 432, 73 N. E. 540. 495. Beal v. Bryant, 99 Me. 497. Arkeson v. Dennison, 117 112, 58 Atl. 428; Kansas City Car Mass. 407. 484 Mastee and Sebvant. §§ 206-208 appeared that the plaintiff, a mason tender, was sent by the defendant to tend the defendant's son who was building the staging, that the defendant had furnished an abundant supply of materials for constructing the staging, but it was not built under his superAdsion, it was said, if the accident was caused by the negHgence of the son in selecting improper materials or improperly fastening them, it was the negUgence of a fellow-servant. *'* § 206. Scaffold built by independent contractor. Where a master has employed a competent scaffold builder to construct for the use of his employees a scaffold, and it broke from the defective manner in which it was constructed, causing injury to one of his servants, it was held, in the absence of notice of the defect, that the master was not liable; that he had performed his duty in the employment of a competent person as an independent contractor to do the work.^'' In such a case he is at liberty to accept the scaffold without inspection.'"" § 207. Scaffold constructed by employee injured. A carpenter who constructed a scaffold according to his own judgment from proper and suitable materials, which broke from a defect therein, was held to be without remedy for his injuries against the master.'" § 208. Scaffold constructed under direction of master's foreman. Where an insecure scaffold was constructed under the direction of the master's foreman, and injury was occa- sioned a workman thereby, it was held the master was not liable. That as it was usual for such class of workmen 498. Kennedy v. Spring, 160 501. Peffer v. Cutler, 83 Wis. Mass. 203, 35 N.B. 779. 281, 53 N. W. 508. See also 499. Devlin v. Smith, 89 N. Y. Blazinski v. Perkins, 77 Wis. 9, 470, 42 Am. Rep. 311. 45 N. W. 947. 500. Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017. §§ 209, 210 Safe Appliances. 485 (painters) to bixild their own scaffolds, who have a choice of means, and one could have been built that was safe, the neglect was that of a fellow-workman/" ^ § 209. Scaflfold known to be defective by vice principal directing its use. If the foreman directs an employee to use a defective staging, known by him to be defective, the master will be hable for an injury to the employee resulting from such defect, although the latter may know of the defect, if he did not appreciate the danger. ^"^ § 210. Scaffold designed for other purposes than ordinary use. Where a scaffold is designed for other purposes than the ordinary use of such an appliance, it would seem that the general rule does not apply. At least those courts where the question has been presented or passed upon, so determine. Thus it was held, that where a scaffold be- came necessary in the matter of the construction of a bridge, not only for the workmen, but to sustain the super- structm-e of the bridge, and it was constructed under the supervision of the master's agent, the master was respon- sible for the manner in which it was constructed to an employee injiu-ed by reason of a defect therein.*"* And where a scaffold was not only required to sustain the weight of the workmen, but also the strain of hoisting sections of heavy iron pipe and the additional weight caused by bracing up the pipe after being put in place, it was held th^re was an implied agreement on the part of the master that the scaffold was reasonably safe and suitable for the purpose.*"* Also where such scaffold was constructed in connection with work in building a concrete elevator and designed to 502. Noyes v. Wood, 102 Cal. 504. F. C. Austin Mfg. Co. v. 389, 36 Pao. 766. Johnson, 32 C. C. A. 309, 89 Fed. 503. Sullivan v. Hannibal & St. 677. J. R. Co., 107 Mo. 66, 17 S. W. 505. Hagerty v. Evans, 87 748, 28 Am. St. Rep. 388, in which Minn. 435, 92 N. W. 399. state foreman is a, vice principal. 486 Master and Seevant. §§ 211-213 carry considerable weiglit in material and number of men employed, and it broke when the men upon it were at an elevation of seventy feet.^"^ Where a scaffold was constructed not only as a place for workmen, but also as an appliance to support a rod, while being put together, it was held that it was a place of work and under the rule of the master's duty as to such.^"' § 211. Temporary uprights used to support permanent tie beams. The general rule was not applied to temporary uprights under permanent tie beams in a building in process of con- struction, to hold a temporary floor upon which workmen were to stand, while raising the rafters for the roof. The master was held hable for the sufficiency of the uprights which he selected. It was said the structiu'e which fell was not a mere staging, where the selection of materials and the method of use was left to the servant.*"* § 212. Employees working near but not upon. It was held by the Minnesota court that as to an employee employed to work in proximity to a scaffold erected for the convenience of other workmen, the master was required to exercise due care in its construction and to see that it was reasonably safe for the purpose.^"' Yet by another coiu't it was held there is no duty of inspection cast upon the master or his superintendent who ordered a staging to be moved a short distance to see if it is safe after such removal. The moving of the stag- ing is held work which he can properly entrust to work- men. ^^'' § 213. Taking down defective scaffold. The master was held Kable for an injury to an employee engaged in taking down a defective scaffold, one which 506. Carlson v. Haglin, 95 508. Gurney v. Le Baron, 182 Minn. 347, 104 N. W. 297. Mass. 368, 65 N. E. 789. 507. National Refining Co. v. 509. Wyokoff v. Wunder, 107 Willis, 74 C. C. A. 301, 143 Ted. Minn. 119, 119 N. W. 655. 107. 510. White v. Unwin, 188 Mass. 490, 74 N. E. 924. §§ 214, 215 Sate Appliances. 487 the master had furmslied for use by other employees as a completed structure."^ It would seem that the court did not apply the ride ordinarily applied to the demolishing of a building or structure, or else that they did not deem the facts brought the case within such rule. The contrary was held by another court. "^ § 214. Scaffold, built by others, as place to work. It was assumed by the Wisconsin court that a scaffold erected by the master's carpenters for use of bricklayers, was a place of work, and where it fell from being improp- erly constructed injuring one of such bricklayers, the master was held hable. The question of fellow-servant was not discussed."' And it was held by a Federal court that if the building of staging and scaffold is not within the duty of a servant who may have to use them in doing his work, or if he has no hand in erecting them, he is not a fellow-servant of ihose servants to whom such duty has been assigned, and may recover for injuries sustained by reason of improper jonsti notion."^ A staging erected to aid in unloading a vessel, was held to be such an appliance or a place of work, as it was the duty of the master to exercise ordinary care in maintaining reasonably safe. The rope by which it was suspended broke and employees were injiired while using it as a means of transit from a boat to a dock."^ § 215. Effect of rule of union. Where the master furnished materials to plasterers to construct a scaffold, he was not hable to another plasterer 511. Cheatham v. Hogan, 50 Mfg. Co., 130 Wis. 525, 110 N. W. Wash. 465, 97 Pae. 499, 22 L. R. A. 409. (N. S.) 951. 514. Thompson-Starrett Co. v. 512. Lebargev.BerlinMiUsCc, Fitzgerald, 79 C. C. A. 427,149 68 N. H. 373, 44 Atl. 533. Fed. 721. 513. Parker v. Fairbanks Morse 515. Hunting v. Quarterman, 120 Ga. 344, 47 S. E. 928. 488 Masteb and Sebvant. §§216-218 who was injured by its breaking, a rule of the union of which they were members required them to construct scaffolds for their own use/" § 216. Rule in Illinois. The rule in Illinois is that a master cannot relieve him- self from liabiUty from defects in a scaffold causing injury by delegating the construction to fellow-servants."' This rule was apphed to a scaffold constructed by the master's carpenter's for bricklayers to work upon."* And also where a stone setter was injured from a defect- ive scaffold built by the brickmasons notwithstanding un- disputed evidence that it was the custom in Chicago for masons to construct their scaffolds.*" It was held, however, that the master's duty of inspec- tion of his appUanees does not extend to the inspection of a plank in a scaffold which is defective by reason of a knot therein.*^" § 217. Rule in North Carolina. The rule in North Carolina apparently is the same as that in Illinois. It was held that the personal duty of the master in respect to appliances extended to and included a scaffold, and hence he is hable for the manner in which it is constructed, even where he delegated the construction to one of his employees. ^^^ § 218. Rule in Michigan. In Michigan, the hability of the employer was placed upon the doctrine of fellow-servant prevaiUng in that 516. Finan v. Suteh, 220 Pa. 618. Chicago & A. R. Co. v. St. 379, 69 Atl. 817. Scanlan, 170 111. 106, 48 N. E. 826. 517. Chicago & A. R. Co. v. 519. MoBeath v. Rawle, 192 Maroney, 170 111. 520, 48 N. E. lU. 626, 61 N. E. 847, 69 L. R. A. 953, 62 Am. St. Rep. 396; John S. 697. MetcaU Co. v. Nystedt, 203 111. 520. Armour v. Brazeau, 191 333, 67 N. E. 764; Ehlen v. O'Don- lU. 117, 60 N. E. 904. neU, 205 111. 38, 68 N. E. 766; 521. Barkley v. South Atlantic Hines Lumber Co. v. Ligas, 172 Waste Co., 149 N. C. 287, 62 S. E. 111. 315, 60 N. E. 225, 64 Am. St. 1073. Rep. 38. § 219 Safe Appliances. 489 state. Thus, where the employers selected one of their employees to superintend the construction of a scaffold or runway to be used in connection with unloading coal from vessels to bins on their dock, giving him entire charge of the work and of the selection from such as the defendant furnished of the materials necessary and proper for the purpose, and the scaffold broke by reason of the use of defective materials, such materials being selected by the workmen, it was held that such superintendent was a vice principal as to the work; that the fact that the materials were selected by other employees did not reheve the mas- ter from Uabihty to one whose duties were in the use of the scaffold and who was injured by reason of its defective construction. ^^^ § 219. Rule in Missouri. It was assumed by the Missouri court that a scaffold erected to be used in the construction of a building, was a place of work, and within the rule applicable to the duty of the employer towards his servant as to the condition and safety of his premises. Hence it was held that a person who was employed to take charge of the erection of such scaffold was in the performance of a duty personal to the master, and having selected imperfect materials whereby it broke and injury resulted to an employee, the employer washable."' The Missouri court also applied the doctrine of fellow- servant in determining the liability of the master for injuries sustained by an employee from a defective scaf- fold. Such employee was injured by the falling of a span of a bridge which was being erected, its fall being occa- sioned by the insufficiency in amount and quahty of the bracings and false work used, and the failure to furnish proper and sufficient materials, and the removal of sup- ports and bracings which had been furnished to make the structure safe and secure during its construction. It was 522. Brown v. Gilchrist, 80 523. Haworth v. Seevers Mfg. Mich. 56, 45 N. W. 82, 20 Am. Co., 87 Iowa, 765, 51 N. W. 68, St. Rep. 496. 62 N. W. 325. 490 Master and Sebvant. § 220 held such employee could recover from the master on the ground of his negligence, since those having supervision of the work represented the master in the performance of a personal duty."* In another and later case the court seem to approve the general rule, as stated herein, but decKned to apply it to false work and a temporary bridge over which trains moved while the permanent structure was being built. It applied a rule in substance that if the master undertakes to furnish structures to be used by the servant in the performance of his work he must use due care in their erection, and that such duty is personal to the master."^ § 220. New York labor law. The provisions of the Labor Law, chapter 415 of the Laws of 1897, sections 18 and 19, are as follows: "A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure, shall not furnish or erect, or cause to be furnished or erected for the perform- ance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivance which are tmsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged. . . . All swinging and stationary scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon, when in use.""* This statute is a positive prohibition laid upon the master, without exception upon account of his ignorance or the carelessness of his servants. The scaffolds, hoists and ladders fiu-nished for use must be safe, suitable and proper. And the statute supersedes the estabhshed rule that his duty was performed in respect to such appliances 524. Brothers v. Carter, 52 K. C. R. Co., 95 Mo. 268, 8 S. W. Mo. 373, 14 Am. Rep. 424; Whalen 230. V. Centenuary Chureli, etc., 62 Mo. 526. Schapp v. Bloomer, 181 326. N. Y. 125, 73 N. E. 563. 525. Bowen v. Chicago, B. & § 220 Safe Appliances. 491 by furmsliing proper materials for their construction and competent workmen to construct it.^" Pleading. Allegations in a complaint as to the fault on defendant's part were that they erected and caused to be erected a scaffold in such negligent, improper and unsafe manner that the same gave way and fell while the plaintiff's intestate was working thereon, by which said intestate received injuries causing his death. It was held that a cause of action was stated as to the common law Habihty of the master, and was not based upon the statute of 1902 which required notice to be given of the injury. ^^^ Temporary staging in room. Ordinary staging put up in a room from four to six feet above the floor to facilitate the placing of fixtures, cannot be regarded as a scaffold within the meaning of the statute already set forth, and where the common law im- poses no UabUity upon the master for an injury residting 527. Stewart v. Ferguson, 164 N. E. 11161; Swenson v. Wilson N. Y. 553, 58 N. B. 662; Caddy v. & BaUee Mfg. Co., 102 App. Div. Interborough R. T. Co., 195 N. Y. 477, 92 N. Y. Supp. 849 [a£anned 415, 88 N. E. 747. Vessel is a in 186 N. Y. 555, 79 N. B. 1116]. "structure" -within the statute. Scaffolding in store held not within Chaffee v. Union Dry Dock Co., 68 statute. Sutherland v. Ammann, App. Div. 578, 73 N. Y. Supp. 112 App. Div. 332, 98 N. Y. Supp. 908. Statute applies only to a 574 [aflarmed in 190 N. Y. 514, completed scaffold. Pursley v. 83N. E. 1133]. Scaffolding in room Edge Moor Bridge Works, 56 in factory held within statute. App. Div. 71, 67 N. Y. Supp. 719 Wingert v. Krakauer, 76 App. Div. [afBrmed in 168 N. Y. 589, 60 N. E. 34, 78 N. Y. Supp. 664. Tempo- 1119]. What constitutes scaffold, rary arch to support brickwork not within the statute, see Conley v. a scaffold. Haughey v. Thatcher, Lackawanna Iron & Steel Co., 94 89 App. Div. 375, 85 N. Y. Supp. App. Div. 149, 88 N. Y. Supp. 123 935. Obligation to furnish a safe [affirmed in 183 N. Y. 551, 76 N. E. scaffolding is a continuing one. 1092]; Welk v. Jackson Arohiteo- Berthelson v. Gabler, 111 App. tural Iron Works, 98 App. Div. 247, Div. 142, 97 N. Y. Supp. 421. 90 N. Y. Supp. 541 [reversed with- 528. Gmaehle v. Rosenberg, out opinion in 184 N. Y. 519, 76 178 N. Y. 147, 70 N. E. 411. 492 Master and Servant. § 220 to an employee from its use, lie eamiot be held liable imder the statute. ^2^ Master's duty as absolute. It was proper to charge, where a scaffold upon which an employee was at work fell, because of a defect in the materials of which it was constructed, that under the statute the defendant was under the absolute duty to furnish a safe and proper scaffold. A refusal to charge "that if the master directed the plaintiff to construct it, the master would not be responsible," was held not error, where the evidence did not show whether the failure to discover that the planks were defective was the fault of the plaintiff, if ordered to construct it, or whether it was the negligence of the defendant in furnishing planks which, unknown to the plaintiff, were defective and imsafe.^'" Construction of "wood structure." The meaning of the word "structure," as used in the statute, is not Umited to structures which are ejusdem generis with houses and buildings, but includes a street raihoad car being repaired in the shop of a raUroad company, and a temporary support surrounding the car, consisting of "painters horses," upon which were placed planks about eight feet from the floor and used by an employee at work upon the car, it being a scaffold fiu*- nished to be used in repairing the structure.^" Master liable where defect not obvious. An employee is entitled to recover for injuries received from the fall of a defective scaffold where he took no part in its erection, and where the defects were not so obvious as to charge him with responsibility for his own injuries.^'^ 529. Schapp v. Bloomer, 181 R. T. Co., 195 N. Y. 415, 88 N. B. N. Y. 125, 73 N. E. 563. 747. 530. Madden v. Hughes, 185 532. Caddy v. Interborough R. N. Y. 466, 78 N. E. 167. T. Co., 195 N. Y. 415, 88 N. E. 531. Caddy v. Interborough 747. § 221 Safe Appliances. 493 § 221. Ohio statute. The Ohio statute of 1908 does not create a liability on the part of the master for injuries to his servant by the fall of a scaffold, in the absence of evidence of the master's negligence.^" 533. Noble v. C. Crane & Co., 94 C. C. A. 423, 169 Fed. 55. 494 Masteb and Servant. VIII. DEFECTS AND REPAIRS. A. In General. Sec. 222. General rule. 223. Delegation of duty as depend- ent on particular rule of fellow-servant. Rule of personal duty as applicable to defects aris- ing in daily use. Basis of foregoing excep- tion to general rule. Where servant employed to put a tiling in safe and suitable condition. 224. Illustrations of rule. Belt lacing. Bumpers on coal ears. Cage in mine. Couplings. Draw bars, different in height. Dumping apparatus. Elevator shafts. Eye bolt. Hook. Latches loose on coal tub. Machine, knives insecurely held. Nut. Plumber's furnishings. Timbers, splinters on. Valves. B. Statutory Provisions and Common Law Rule in Dip- FBEENT States. 225. General considerations. 226. Alabama. At common law. Statute. 227. Arkansas. Sec. 228. Federal courts. 229. Illinois. 230. Indiana. 231. Maine. 232. Maryland. 233. Massachusetts. At common law. Employer's liability act. Unsuitableness a defect under statute. Issues presented under com- mon law and statute, election. Statute embraces direction to use defective tempo- rary appliance. Defense of assumption of risk not taken away. Proof by plaintiff of exer- cise of ordinary care. Liability same as at com- mon law. Belt. Blasts unexploded. Building in process of con- struction. Car. Chain. Cotton bales. Electric wires. Exploder in blasting opera- tion. Floor in mill. Foreign car. Gang plank. Hatch on vessel. Ladders. Moulds. Platform. Rubbish on floor. §222 Safe Appliances. 495 Seo. Set screw. Scope of employinent. Snow on roof. Staging. Stairs on premises of an- other. Stone pile. Tracks of another company. Trench; sewer. Truck. Walk. Wooden lever. 234. Mississippi. A. In Sec. Common law rule. Constitutional provision. Code provision. Acts relate to railroads only. 235. New York. 236. New Jersey. 237. North Carolina. 238. Ohio. Common law. Pleading. Statutes. 239. Oregon. 240. Wisconsin. General. § 222. General rule. It is the doctrine of the courts, with some exception, that it is not only the duty of the master to exercise reasonable care to provide suitable and safe machinery and apphances for use by his employees, but that it is Ukewise his duty to keep such machinery and appliances in proper repair and safe working order, and with the exception herein- after stated, if these duties or any of them are negligently performed and one of his servants thereby sustains an injury, the master is liable, though he may have intrusted the performance of such duties to subordinates, by what- ever name they may be called.^'* 634. Brabbitts v. Chicago & N. W. R. Co., 38 Wis. 289; Schultz V. Chicago, M. & St. P. R. Co., 48 Wis. 375, 4 N. W. 399; Wedgewood V. Chicago & N. W. R. Co., 44 Wis. 44; Wedgewood v. Chicago & N. W. R. Co., 41 Wis. 478; Houston Biscuit Co. V. Dial, 135 Ala. 168, 33 So. 268; Chicago & N. W. R. Co. V. Jackson, 65 111. 492, 8 Am. Rep. 661; Cregan v. Marston, 126 N. Y. 568, 27 N. E. 952, 22 Am. St. Rep. 854; Roux v. Blodgett & D. Lum- ber Co., 94 Mich. 607, 64 N. W. 492; Van Dusen v. LeteUier, 78 Mich. 492, 44 N. W. 572; Fuller v. Jewett, 80 N. Y. 46, 36 Am. Rep. 575; Gunter v. Graniteville Mfg. Co., 18 S. C. 262, 44 Am. Rep. 573; Republic Iron & Steel Co. v. Ohler, 161 Ind. 393, 68 N. E. 901; Indiana Car Co. V. Perker, 100 Ind. 181; Corcoran v. Holbrook, 59 N. Y. 617, 17 Am. Rep. 369; Shebeek v. National Cracker Co., 120 Iowa, 414, 94 N. W. 930; Brann v. Chicago, R. I. & P. R. Co., 53 Iowa, 595, 6 N. W. 6, 36 Am. Rep. 243; Baltimore & 0. R. I. & P. R. Co. V. Baugh, 149 U. S. 368, 37 L. Ed. 772, 13 Sup. Ct. Rep. 914; Hough V. Texas & P. R. Co., 100 496 Master and Servant. § 222 It was said the servant has no more control over the repairs than of the purchase, no more responsibility for the one than the other. The person whose duty it is to keep the machinery in order, so far as that duty goes, is not in any legal sense the fellow-servant of employees called upon to use it. To provide machinery and keep it in repair, and to use it for the purposes intended, are very distinct. They are not employments in the same common service, leading to the same common residts. The one may be said to begin where the other ends.^'* The duty of the master in respect to maintaining his appliances in repair was held to be to keep them in proper repair and to exercise reasonable care to prevent accidents, by proper watchfulness as to their condition, and to guard against dangers liable to arise from ordinary wear and tear. ^^* But the fact that an appliance is out of repair does not, however, estabUsh neghgence on the part of the master, if it was not in general use,^" or if the master has ceased to U. S. 213, 25 L. Ed, 612; Ohio & 78 Va. 745, 49 Am. Rep. 401; M. R. Co. V. Pearey, 128 Ind. 197, Torian's Adm'r v. Richmond & A. 27 N. E. 479; Houston & T. R. Co. R. Co., 84 Va. 192, 4 S. E. 339; V. Dunham, 49 Tex. 181; H. & T. C. Lewis v. St. Louis & I. M. R. Co., R. Co. V. Marcellus, 59 Tex. 334; 59 Mo. 495, 21 Am. Rep. 385; Cooper V. P. C. & St. L. R. Co., Shanney v. Androscoggin Mills, 66 24 W. Va. 37; Clay City Lumber Me. 420; Fay v. Minneapolis & St. & Stave Co. v. Noe, 25 Ky. L. Rep. L. R. Co., 30 Minn. 231, 15 N. W. 668, 76 S. W. 195; Wolfe v. New 241; St. Louis, I. M. & S. R. Co. v. Bedford Cordage Co., 189 Mass. Harper, 44 Ark. 524; Mulvey v. 591, 76 N. E. 222; Thompson v. Locomotive Works, 14 R. I. 204; American Writing Paper Co., 187 Kerrigan v. Chicago, M. & St. Mass. 93, 72 N. E. 343; Meehan v. P. R. Co., 86 Minn. 407, 90 N. W. Great Northern R. Co., 13 N. D. 976; Bigum v. St. Paul Sash, Door 432, 101 N. W. 183; Boyle v. Union & Lumber Co., 107 Minn. 567, 119 Pac. R. Co., 25 Utah, 420, 71 Pac. N. W. 481. 988; Ehnore v. Seaboard Air Line 535. Shanney v. Androscoggin R. Co., 132 N. C. 865, 44 S. E. Mills, 66 Me. 420. 620; Budge V. Morgan's L. & T. R. 536. Johnson v. Spear, 76 Mich. & S. S. Co., 108 La. 349, 32 So. 139, 15 Am. St. Rep. 298. 535, 58 L. R. A. 333 ; Atchison, T. & 537. Brown v. Chicago, R. I. & S. F. R. Co. V. Moore, 29 Kan. 632; P. R. Co., 59 Kans. 70, 52 Pac. 65. Moon V. Richmond & A. R. Co., § 223 Safe Appliances. 497 use it/'* or if the employee is warned of the danger until repairs are made.^^' § 223. Delegation of duty as dependent on particular rule of fellow-servant. Where the courts differ in respect to this duty is as to when the master's duty has been fully performed, and whether he can delegate the performance of some part of the work to subordinates without further responsibility as to the manner of its performance or must personally see that the work is properly done and hence become responsible for the manner in which it is performed. The determination largely depends upon the rule of fellow- servants; and as that rule varies, is not the same in all states, so the personal duty of the master is not the same in all. To ascertain what that rule is, reference must be made to the prevaiUng doctrine in each state under the head of fellow-servants. Rule of personal duty as applicable to defects arising in daily use. However, in those states where the rule is that in general the duty in respect to defects and repairs is per- sonal to the master, such rule does not apply to defects arising in the daily use of appUances, which are not of a permanent character and do not require the help of sMLful mechanics to repair, but which may easily be and usually are repaired by the workmen, and to repair which proper and suitable materials are suppUed.*^" 538. McAuley v. New York Pa. St. 211, 40 Am. Rep. 634; Cone C. & H. R. R. Co., Ill App. Div. v. Delaware, etc., R. Co., 81 N. T. 117, 97 N. Y. Supp. 631. 206, 37 Am. Rep. 491; Murray v. 639. Hemr V. Lake Shore & M. Usher, 117 N. Y. 642, 23 N. E. 664; S. R. Co., 49 Mich. 495, 13 N. W. FuUer v. Jewett, 80 N. Y. 46, 36 832. Am. Rep. 575 ; Cregan v. Marston, 640. The Fulton, 143 Fed. 591; 126 N. Y. 668, 27 N. E. 952, 22 Daley v. Boston & A. R. Co., 147 Am. St. Rep. 854; McGee v. Bos- Mass. 101, 16 N. E. 690; Gotlieb ton Cordage Co., 139 Mass. 445, V. New York, L. E. & W. R. Co., 1 N. E. 745; Webber v. Piper, 109 100 N. Y. 462, 3 N. E. 344; Benzing N. Y. 496, 17 N. E. 216; Johnson V. Steinway, 101 N. Y. 547, 5 N. E. v. Boston Tow Boat Co., 135 Mass. 449; Baker v. Allegheny R. Co., 95 209, 46 Am. Rep. 458. 1 M. & s.— 32 498 Masteb and Servant. § 223 It was said tliis doctrine appears to be founded upon what is determined to be the implied contract relation between the master and servant. Their mutual duties grow out of that relation and change and vary as it is changed and varied by the facts which indicate and meas- ure it. Where those facts show that in the understanding of both parties a class of ordinary repairs are to be made by the servants with materials furnished by the master for that express purpose, that they and he regard it as a detail of their own work, that it is something entirely within their capacity and not dependent upon the skQl of special experts, and that the necessity springs from their daily use of the appliance, occurs at different and unknown periods in their service, and is open to their observation in the absence of the master; the inference is inevitable that the contract relation between the parties makes it a duty of the servants and a detail of their work to correct the defect, when it arises, with the materials furnished. *^^ Basis of foregoing exception to general rule. The exception to the general rule just stated depends upon the fact that the master has furnished sufficient of suitable material and proper means for his servants to remedy the defect, such duty being personal to the master. The extent to which this exception has been recognized and apphed to staging, scaffolds and the Uke, as well as where not recognized and apphed, appears in preceding pages. In other cases, the cases set forth in the notes below are apt illustrations.*** 541. Cregan v. Marston, 126 the passage of hemp over heckle N. Y. 568, 27 N. E. 952, 22 Am. St. pins, sometimes became so bent that Rep. 854. the fibre clogged, stopping the ma- 542. Where a miae owner failed chine and workmen drove out the to keep an air compressor in a mine bent pin and inserted a new one in proper repair, resulting in forcing from a supply furnished, neglect gas and hot air into the mine, such in this manner of keeping the neglect was chargeable to the mas- machine in proper condition was not tOT and not within the exception, chargeable to the master, but to a Davis V. Holy Terror Min. Co., fellow-employee to whom the duty 20 8. Dak. 399, 107 N. W. 374. was properly delegated. McGee Where pins in a machine used for v. Boston Cordage Co., 139 Mass. §223 Safe Appliances. 499 Where servant employed to put a thing in safe and suitable condition. Another exception to the general rule is where a servant is employed to put a thing in a safe and suitable condition 445, 1 N. E. 745. It was held that repairing a broken chain was not ordinary repairs within the province and duty of servants to repair. That it was a part of the permanent equipment for handling bars of iron, and the master's duty was not performed by furnishing a com- petent smith with sufl&eient mate- rials to make the repairs, but rather such duty was personal to the master. HaskeU v. Cape Ann Anchor Works, 178 Mass. 485, 59 N. E. 1113, 4 L. R. A. (N. S.) 220. Where the master failed to supply a nut to be placed on a bolt, and the employee repairing the ma- chine was injured in attempting to supply its place by wrapping a string around the end of the bolt, it was held the master was liable. Greenville Oil & Cotton Co. v. Harkey, 20 Tex. Civ. App. 225, 48 S. W. 1005. [It is doubtful whether this conclusion would re- ceive support elsewhere. It would seem that it was the duty of the repairer to seek for a nut, if he anticipated or should have antici- pated that there was danger in the means he voluntarily adopted, or else refrained from adopting such means, and let the machine remain at rest until the proper nut was supplied. That he was better able to judge of the risk than the master.] Where the master has supplied a quantity of suitable ropes for the work in hand, he may properly delegate to em- ployees the duty of selection of such as are suitable from the quantity furnished, and be relieved from responsibility for the selection and use of one which is unsound. Johnson v. Boston Tow Boat Co., 135 Mass. 209, 46 Am. Rep. 458. Where the master had supplied the means of sharpening saws which had become dull, and dupUcate saws to take their place when re- moved, and assigned the duty of removal to one of his employees, he was not chargeable with negli- gence in respect to the condition of one of such saws as to being duU, since the duty of avoiding such condition or remedying such defect was properly delegated to such employee. Webber v. Piper, 109 N. Y. 496, 17 N. E. 216. Where steps on an engine became loose, which it was the duty of the engi- neer to fix, being provided with tools for that purpose, the master was not Kable to a brakeman re- ceiving injury while attempting to mount the engine as a result of such defect. The duty of such repair was one which the master could properly delegate. Miller v. Chicago & G. T. R. Co., 90 Mich. 230, 51 N. W. 370; Texas & P. R. Co. V. Patton, 9 C. C. A. 487, 61 Fed. 259. It was held, however, by the Massachusetts court, that the duty to maintain steps on the foot of its cars, used by employees in getting on or off the car, is suit- able repair and of sufficient strength was personal to the master. Smith V. Thompson-Houston Elee. Co., 188 Mass. 371, 74 N. E. 664. 500 Master and Servant. § 224 for use. It would be unreasonable and inconsistent to require the master to have it ia a safe condition and good repair for such employment, and the master is not re- quired to do so.^*' It was held, however, where a servant was directed to tighten a cap on a locomotive and in doing so the cap flew off, having been the day before improperly screwed on, the threads being crossed, thus permitting an escape of steam, that the above rule did not apply.*** § 224. Illustrations of rule. Belt lacing. There being evidence that use of a single strand placed in a single row of holes on each end of a joint of belting, was insufficient and vinsafe, the jury could properly find neghgence of the master in respect to furnishing a reason- ably safe appliance. ^*^ Bumpers on coal cars. Where bxmipers on coal cars, though not placed there to enable employees to make couplings in safety, were of material assistance to that end, it was the master's duty to exercise reasonable diligence in keeping the bumpers in a reasonably safe condition.**' Cage in mine. An appliance is not defective within the rule of the master's duty in respect thereto, where the act of the engineer operating it in failing to expel water from the cylinder of the engine which controls the movement of the appliance, is the only neghgence. A cage used in a mine fell because the brake and reversing apparatus would not work from the cause stated.**^ 543. Broderick v. St. Paul City Providence Worsted Mills, 22 R. I. R. Co., 74 Minn. 163, 77 N. W. 28; 347, 47 Atl. 1092. Green v. Babcock Bros. Lumber 546. Donk Bros. Coal & Coke Co., 130 Ga. 469, 60 S. E. 1062. Co. v. Retzloff, 229 lU. 194, 82 544. Missouri, K. & T. R. Co. N. E. 214. V. Quarles, 22 Tex. Civ. App. 83, 647. Spring Valley Coal Co. v. 54 S. W. 251. Patting, 30 C. C. A. 168, 86 Fed. 545. McGar v. National & 433. §224 Safe Appliances. 501 Couplings. Where the parting of a train is owing to a defective work- ing of the automatic couplings, and such working may be attributable either to (1) slipping apart by reason of wear; (2) the pin "pinching" up so as to permit the knuckles to unhook; or (3) the jumping of the drawbars one above the other; it is the first only as to which a charge of neghgence Hes against the master.^** Where a train parted owing to defective working of automatic couplers, the master in any event being only chargeable where the cause was a defect caused by wear, and the only proof was that the coupUngs were somewhat worn, but not enough to aUow a slipping apart, and there were other causes that would permit the couplings to part, there was no liability on the part of the master for injuries to a servant caused by the parting of the train. The general rule as to the master's duty in respect to his appli- ances stated. ^^* Drawbars, different in height. The difference in height of drawbars is not a defect for which a railroad company is answerable. It is not the duty of such company to warn an employee of the possible difference before setting him at work.^^" Dumping apparatus. A dumping apparatus in plain sight on the outside of a small car in which stone was pushed and pulled by work- men on a tramway, was not defective so as to render the employer Uable for injury to one of the workmen, merely because it was so constructed that when the car was dumped a cross arm at the end descended so near to the planking of the tramway, that a person's foot if under it woxild be injured, where in the ordinary and usual opera- 548. Meehan v. Great Northern 550. Ellsbury v. New York. R. Co., 13 N. Dak. 432, 101 N. W. N. H. & H. R. Co., 172 Mass, 183. 130, 51 N. E. 415, 70 Am. St. R«p. 549. Meehan v. Great Northern 218. R. Co., 13 N. Dak. 432, 101 N. W. 183. 502 Masteb and Servant. § 224 tion of the ear the feet of the workmen would not be any- where near the cross arm."^ Elevator shaft. A small hole five or six inches wide, 2J^ inches high and one inch deep in the plastered wall of an elevator well, was not an actionable defect. An employee was injured by his foot coming in contact with it, while it was hanging over the edge of the elevator. ^^^ Eye bolt. The evidence in this case was held sufficient to sustain a verdict that the construction of a rod and bolt which held a crane to the framework of the building, the eye bolt breaking permitting the crane to fall, was not rea- sonably safe, and that it was the proximate cause of injury to one of the master's employees."' Hook. A hook used in the loading and unloading of a vesse^, known by the mate to have a flaw in it and hence defective, was a defective appliance and negligence in using it was chargeable to the master, where it broke causing injury to an employee.^'* Latches loose on coal tub. The mere fact that the latches on a coal tub used in hoisting coal from a barge, was somewhat loose but not more so than those in common use, such condition not being caused by wear or breakage, does not render the appUance defective or unsuitable."^ Machine, knives insecurely held. An employee operating a paper cutting machine, was injured by the knives dropping upon his hand while in the act of removing paper from the machine. Such machine 551. Hanson V. Superior Mfg. M. Co., 129 Wis. 366, 109 N. W. 84. Co., 136 Wis. 617, 118 N. W. 180. 554. The Neptuno, 30 Fed. 562. McDonald v. Button, 190 925. Mass. 391, 76 N. E. 1055. 555. Dolan v. Atwater, 167 553. Sorensen v. J. I. Case T. Mass. 274, 45 N. E. 742. § 224 Safe Appliances. 503 was operated by a lever and was so adjusted that when in proper condition a pressure upon the lever would cause the knives to descend upon the table and return to its former position and remain there until the lever was again pressed. Under normal conditions the knives woidd descend only when the lever was pressed. There was evi- dence that at the time of the injury the knives dropped a second time without the lever being pressed, and also evidence that such would happen occasionally, and then for a long period would operate perfectly without dropping a second time. The case does not disclose any defect in the machine, and there was evidence that the machine was so constructed that second dropping of the knives without pressm-e of the lever was impossible. It seems to have been held that the abnormal movement of the machine was an internal defect, though the cause was not discover- able by inspection, and the master was liable if he was chargeable with notice; and while no actual notice was proven, yet it was a question for the jury whether from the fact the abnormal movement had continued occasionally for some time the master was not chargeable with notice."' Nut. A nut, and threads on which the nut was screwed, being in good repair, not worn or loose, the fact that the nut came off after it was screwed on tight, was a result no one could foresee, a pure accident for which no one was responsible.^" Plumber's ftxrnace. The evidence in this case was not sufficient to sustain the charge that the master was neghgent in furnishing the employee with a defective plumber's furnace."* 556. Fleming t. Northern Tis- 558. Lehman v. Dwyer Plumb- sue Paper Mill, 135 Wis. 157, 114 Ing & Heating Co., 104 Minn. 190, N. W. 841, 15 L. R. A. (N. S.) 701. 116 N. W. 352. 657. Portman v. Cuppon, 128 N. W. (Wis.) 866. 504 Master and Sebvant. § 225 Timbers, splinters on. The rule as to the master's duty to furnish safe instru- mentalities was applied to the extent of his Uability for furnishing timbers to a bridge carpenter which were se covered with splinters as to render the handling of them dangerous."' Valves. The charge being that valves in a machine were im- perfectly adjusted, and no proof being given to sustain it, except that the machine did not work easily, the charge was not sustained."" B. Statutory Provisions and Common Law Rttlb in DiFi^ERENT States. § 225. General consideration. The statutes requiring safe guards for machinery having been considered, there is stiU another class of statutory enactments found in several of the Employer's Liabihty Acts which it is necessary to refer to. In Alabama, Colo- rado, Indiana, Massachusetts and New York the statute provides, in substance, with only minor differences, that the master shall be hable when the injury is caused by any defect in the condition of the ways, works or machin- ery connected with or in use in the business of the em- ployer, when such defect is the result of negligence on the part of the employer, or some person intrusted by him with the duty of keeping such ways, works, etc., in proper con- dition. These statutes are merely declaratory of the common law as generally held in this country."^ The provision in question was adopted from the Enghsh statute in which country it was held, prior to the statute, that the servant charged with the performance of such 559. Louisville & N. R. Co. v. 661. Ryalls v. Mechanics' Mills, Semones, 21 Ky. L. Rep. 444, 150 Mass. 190, 22 N. E. 766, 6 L. 61 S. W. 612. R. A. 667; WUson v. Louisville & 660. Scarlotta V. Ash, 95 Minn. N. R. Co., 85 Ala. 269, 4 So. 701. 240, 103 N. W. 1025. § 226 Sape Appliances. 505 duties was a fellow-servant of the one injured by Ms negligence; and the provision in the English statute was enacted apparently solely to abrogate that rule of fellow- servants. This rule of fellow-servants, while adopted to some extent in this country, does not prevail in most of the states without regard to statutory enactments. § 226. Alabama. At common law. Accidents from which personal injury may result pro- ceeding from defects originally existing or which result from their use, are, like neghgence of fellow-servants, of the incidental hazards of the service to which the servant must have contemplated he would be exposed. When such appUances have been furnished, when diligence has been observed in procuring them, the use of them is necessarily intrusted to the servants of a railroad company, as is their care and inspection and repair of them, and determining when their use must be abandoned until repairs are made. This duty may be intrusted to those operating the apph- ance or confined to other servants having no other duty than that of inspection or repair. This rule was declared where a brakeman was injured by reason of a broken draw- bar or bumper."^ The machinist ia the shop whose duty it was to repair locomotives and the supervisor of the track whose duty it was to keep the road bed in proper condition, have each been determined feUow-servants of the fireman on the lo- comotive for which neghgence the master coidd not be made hable.'*' Statute. This state, however, has enacted a statute in respect to the habUity of the master in respect to the condition of his appliances substantially the same as that iu force iu Massachusetts. It provides (Section 2590): "When 562. Smoot v. Mobile & M. R. 563. Mobile & O. R. Co. v. Co., 67 Ala. 13; Mobile &0.R. Co. Smith, i9 Ala. 245; Smoot v, V. Thomas, 42 Ala. 672. Mobile & M. R. Co., 67 Ala. 13. 506 Master and Sebvant. §226 a personal injury is received by a servant or employee in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employee as if he were a stranger and not en- gaged in such employment, in the cases following: "First. Where the injury is caused by reason of any defect in the ways, works, machinery or plant connected with or used in the business of the master or employer. . . . Nor is the master or employer hable imder sub- division 1 unless the defect arose from, or had not been discovered or remedied owing to, the neghgence of the master or employer or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition." ^^* 564. "The general principles regulating in all the classes of cases defined by the statute, the rights and duties of the employee and the liability of the employer, and also the defenses available to him, as declared by our former de- cisions, may be summarized as follows: Though the statute has no application to the known risks and dangers of the service or em- ployment, against which human skill and caution cannot provide, when an employee sustains injury by reason of any defect in the ways, works, machinery or plant, or the injury is caused by the negligence of any of the persons mentioned, and under the circumstances pro- vided by the statute, it abrogates the common law rule that the em- ployee impliedly contracts to as- sume the known and ordinary risks incident to his employment. In neither of the classes of cases, however, does any liability for injuries caused by the known and ordinary risks, arise without negli- gence on the part of the employer, or of some person intrusted with superintendence or authority to give orders or directions, or having charge or control of eome signal point, locomotive, engine, car or train upon the track of a railway, or by reason of the act or omission of some persons, done or made in obedience to the rules, regulations or by-laws of the employer, or to particular instructions of a person delegated with authority in that behalf. The scope and operation of the statute is to make the employer answerable In damages for an injury caused by his own negligence or the negligence of a co-employee of the same or superior grade, in the enumerated classes of cases. In all cases the employee is bound to use ordinary care for his own protec- tion. If there are two ways of dis- charging the service apparent to the employee, one dangerous, the other safe or less dangerous, he must select the safe or less dangerous way. . . . To entitle the plain- §226 Sape Appliances. 507 Under this statutory provision, a complaint which al- leges that plaintiff's injury was occasioned by a defect which was known to the defendant, or which could have been known by the exercise of reasonable diligence, is not sufficient, in the absence of any further allegation of negli- gence, for the reason that the defendant, after discovering tiff to recover by virtue of the statute, lie must both aver and prove a case coming within one of the enumerated classes of cases." Where the charge is negligence in giving directions or orders, it is incumbent on plaintiff to show (1) that the persons who gave the or- ders or directions was in the service or employment of defendant; (2) that he was bound to conform to the orders of such person; (3) that he did conform to such orders, and that his injuries resulted from his having so conformed, and (4) that the person was negligent in giving the orders and directions. Mobile & O. R. Co. v. George, 94 Ala. 199, 10 So. 145. It was the duty of an engineer in charge of several blowing engines in one room, if any one need repair, to disconnect it from the steam supply and turn it over to the repairer, and pending repairs, pre- vent interference by others. The repairer secured the engine either by inserting timbers into the fly wheels or by propping the piston rod of the tender. The engineer had disconnected the steam from the engine, and the deceased, a repairer, had propped the piston rod. In some way the steam be- came reconnected and the piston descended, crushing the prop and killing the repairer, who was in the air cylinder. It was held that since the accident could have occurred only by such reconnection, and a competent person was provided to prevent it, the employer had not negligently failed to provide de- ceased a safe place to work. Since the deceased's act in going under orders into the cylinder, where he was killed, was not the proximate cause of his death, but the super- vening negligence of another, or unaccountable accident, there corld be no recovery under subd. 4, making the employer liable when the injury is caused by an act or omission of any servant in obe- dience to particular orders of a vice principal. Dantzler v. De Barde- leben Coal & Iron Co., 101 Ala. 309, 14 So. 10, 22 L. R. A. '■361. Where an employee was in- jured while riding on the foot board of an engine by his feet striking against an oil box left near the tracks in the company's yards, it was held that a cause of action was mot presented under the statute; that the defect complained of was not a defect in the track and there- fore not within the provision which makes the master liable for injuries to his servant caused by reason of any defect in the condition of the ways, works, machinery or plant connected with or used In the business of the master. Louisville & N. R. Co. V. Bouldin, 110 Ala. 185, 20 So. 325. 508 Master and Sebvant. §§227-230 a defect, must have had reasonable time to remedy it be- fore it could be said to be negligence under tbe provision making the master liable when the injury is occasioned by reason of the negligence of any other servant who has any superintendence intrusted to him."* § 227. Arkansas. The general rule to the effect that it is a duty personal to the master to exercise reasonable care to furnish to employees reasonably safe appUances and maintain them in repair is the law of Arkansas. However, the doctrine is not carried to the extent that generally prevails where such doctrine has been declared, with respect to repairs. Thus, a car inspector is held to be the fellow-servant of trainmen. *^^ § 228. Federal courts. The duty in respect to repairs is personal to the mas- ter. "^ § 229. Illinois. lUinois has adopted the department theory and that of consociation; hence it follows that those servants who are employed in furnishing and repair of appliances, for the use of operatives, are engaged in a different department of the service."^ § 230. Indiana. The duty of the master extends to maintaining his appli- ances in a reasonably safe condition."^ 565. Seaboard Mfg. Co. v. Co., 100 U. S. 213, 25 L. Ed. 612; Woodson, 94 Ala. 143, 10 So. 87. International Mercantile Marine However, in Mobile & O. R. Co. y. Co. v. Fleming, 80 C. C. A. 479, 151 George, supra, it was held that an Fed. 203; Armour & Co. v. Russell, allegation in the words of the stat- 75 C. C. A. 416, 144 Fed. 614, 6 ute, or substantially the same, is L. R. A. (N. S.) 602. suffloient. 568. Toledo, W. & W. R. Co. v. 566. St. Louis, I. M. & S. R. Moore, 77 111. 217. See also infra, Co. V. Gaines, 46 Ark. 555; St. chapter on feUow-senrants. Louis, I. M. & S. R. Co. v. Harper, 569. Chicago, I. & L. R. Co. v. 44 Ark. 524. Wilfong, 173 Ind. 308, 90 N. E. 667. Hough V. Texas & P. R. 307. §§231, 232 Sape Appliances. 509 § 231. Maine. The master's duty in respect to furmshing reasonably safe appliances is fully discharged if he has furnished suffi- cient appliances or instrumentalities with competent men to use them, it then being understood that the servants are to make a selection therefrom from time to time as oc- casion requires. If by lapse of time, an apphance, from use, has become unfit, the master has the right to presume that the servant will use the means of renewal and repair."" § 232. Maryland. Maryland is another state which does not accept the general rule stated in respect to repairs. The nile in that state is that the master is not liable to his servant for any injury occasioned by a defect of machinery furnished to the latter to operate, xmless he was negligent in providing such machinery or knew of the defect and omitted to warn the servant of its existence; and where the defect producing the injury complained of is the consequence of the incompe- tency or neglect of a feUow-servant or where the origin, of the defect does not appear, the master is not liable to the servant unless it appears that he has been negligent in selecting the fellow-servant or in providing the machinery in which the defect occurred. It follows that a brakeman on a train is in the same common employment with the mechanics in the shop to repair and keep in order the ma- chinery and with the inspector of machinery and rolling stock of the road, and the superintendent of the movement of trains."^ This rule was applied where a locomotive boUer exploded injuring an employee and it appeared that it was purchased by the general superintendent and master mechanic, and that it was old and defective. It was held that such per- sons, in the act of purchasing machinery, were directly representing the master, but that the master mechanic as 570. Amburg v. International O. R. Co., 32 Md. 411, 3 Am. Rep. Paper Co., 97 Me. 327, 54 Atl. 765. 143. 671. Wonder v. Baltimore & 510 Masteb and Sebvant. §233 to the ordinary acts wMch related to his position and department, and in respect to repairs, was meiely a fellow- servant with other employees."^ § 233. Massachusetts. At common law. The rule in Massachusetts is not very clearly defined. The court attempted to state it with great precision, but with all due respect it is submitted that they did not suc- ceed in making it clear and definite, especially in view of other decisions made by it."' 572. Cumberland & P. R. Co. V. State, 44 Md. 283. See also Shanek v. Northern. Cent. R. Co., 25 Md. 462. 573. Thus It is stated: "It the absence of an express stipula- tion, the master impliedly agrees to provide and maintain reason- ably safe and suitable machinery and appliances so far as the exer- cise of proper care on his part will secure them;, and the servant agrees to assume aU the ordinary risks of the business, and, among them, the risk of injury from negligence of his fellow-servants. The obligation which the master assumes is per- sonal, and pertains to him in his relation to the business as proprie- tor and in his relation to the serv- ant as master. It has been repeat- edly held that he cannot discharge it by delegating the performance of his duty to another, and, if he em- ploys servants or agents to repre- sent him in the performance of this duty, they are to that extent agents or servants for whose conduct he is responsible. The very nature of the implied contract created by the hiring, whereby he undertakes to use proper care in always providing safe tools and appliances, is incon- sistent with the delegation of the duty to a feUow-servant, for whose negUgenee he is not to be respon- sible. His obligation iuvolves the exercise of every kind of care and diligence which is necessary to give him knowledge of the conditions as to the safety of his machinery and appliances, so far as such knowl- edge is obtainable by reasonable effort. His duty relates to the condition of these articles when they come into the hands of Ms servants for use, and the perform- ance of that duty must carry him just so far into details as it is reasonably necessary to go, in view of the nature and risks of the busi- ness, to enable him to reasonably protect his servants from dangers which he should prevent. It is obvious that different questions arise, in cases of this kind, ui de- termining the implied obUgations of the respective parties under pecuhar circumstances. In many kinds of business the condition of a machine as to safety is constantly changing with the use of it; and it is safe or unsafe at a given moment according as it is properly or im- §233 Safe Appliances. 511 It is stated by the same court in anotlier case that it is the duty of the master to exercise a reasonable supervision over the condition in which the machinery, structures and other appliances used in the business are kept by his servants, and he cannot wholly escape responsibility by delegating the performance of this duty to his servants. properly used and managed by the person who operates it. Moreover, certain kinds of repairs can be conveniently and properly made, under direction and supervision, by servants regularly employed in the business. In such cases both par- ties to the contract of service must be presumed to have contemplated that, to a certain extent, fellow- servants would be employed by the master to do work in keeping the machinery safe. Work negligently done in that field, if an accident should happen from it, would seem, at first, to introduce a conflict be- tween the obligation of the master to hold himself liable for want of due care in keeping his machinery safe, and the obligation of the serv- ant not to claim damages resulting from the negligence of a fellow- servant. It becomes necessary, therefore, to consider the rights of the parties in such cases. The ap- plication in each particular case of any general rule which may be laid down win involve a consideration of two questions of fact: First. What is the nature and character of the business, and the usual and proi)er method of conducting it? Secondly. In such a business, what is reasonably necessary to be done, on the part of the master, to secure for the use of the workmen ma- chinery and appliances which will always be reasonably safe? First. There is that class of cases in which the condition of a machine, as to safety, is constantly changing with its use, so as to require from a person tending it, as a part of the ordinary use of it, reconstruction or adjustment of its parts, as they become worn out or displaced, from materials or new parts supplied by the master for that purpose. Such work is a part of the regular business of the servant in using the machine, and not of the master in maintaining it. Negligence in do- ing it is, as to all other employees, negligence of a fellow-servant. So far as the condition of the machine depends upon this kind of attention, the master does his duty if he employs competent and suitable persons, and supplies them with everything needed for their work. A second class of cases includes those in which repair or recon- struction of a machine is necessarily of such a kind as is commonly done, or may properly be done, under the direction of the master, by serv- ants engaged in the general busi- ness. Both parties to the contract must be presumed to have contem- plated that such work would be done by feUow-servants of the employee, and he must therefore be held to have assumed all risks from their negligence in doing it. But this, it must be remembered, is a part of the work, for the result of which, in the completed machine, the master agrees to hold himself 512 Mastee and Sebvant. §233 That the negligence of his servants in repairing or failing to repair machinery is not necessarily the negligence of the master, but it is also to be determined in. each case whether the master has exercised a reasonable supervision over his servants and reasonable care in seeing that his machinery is kept iu proper condition, although he may have em- ployed competent servants and furnished them with suitable materials and instructed them to keep the machine in repair. "We are aware," say the court, "that this rule responsible, so far as good results can be insured by his exercise of proper care. (Though this language is very indefinite, it is assumed that it means that the servant in charge is chargeable with any defects that are due to his want of care in in- spection, test, or directions, or want of skiU, and which would not have happened, or would have been discovered by him, if in the exer- cise of ordinary care.) And he is so bound to bring to this depart- ment of his business, either in his own person or by an agent, such intelligence, skill and experience as is reasonably to be required in one to whom, in an important par- ticular, the safety of others is intrusted; and he is also bound to be reasonably diligent and careful in the use of his faciUties. One who represents him in this field is not acting as a fellow-servant with his other employees, within the meaning of the rule which we are considering, but is his agent or servant, for whose care and dili- gence he is accountable. There may be still a third class of cases, in which a machine is of such a kind, and the nature of the business in which it is used is such, that the parties could never reasonably have contemplated' that any servants employed in the business would build or reconstruct it. A pro- prietor might buy such a machine or send an agent or servant to buy it. In either case the pmrohase would be in the line of the master's duty, and he would be hable for consequences of negligence in mak- ing it. He might have men and privileges in a machine shop in a distant city and buUd it there. His servants in that work would not be feUow-servants with an employee engaged in an entirely different business, and under the doctrine of respondeat superior he would be held hable for the consequences of their negligence. If he saw fit to construct it or reconstruct in the same way in or near the building in which it was to be used, the re- sult would be the same. It is believed that the decisions in every case in this commonwealth founded upon alleged negligence of a master in relation to his machinery, tools or apphances wUl be found, upon the view of the facts taken by the court, to be governed by the prin- ciples which we have stated." Mon- yihan v. Hills Co., 146 Mass. 586, 16 N. E. 674, 4 Am. St. Rep. 348. §233 Safe Appliances. 513 is somewhat indefinite, and is perhaps not precisely that which prevails in the United States.""^ The court had previously declared a rule as to the master's duty in respect to repairs as follows: "When a master has provided suitable structures, means and appU- ances for the prosecution of a business, all persons em- ployed by him in canying on the business, by use of the means directly in the prosecution of the business, those who maintain them in a condition to be used and those who adapt them to use by means of new appUances and adapta^ tions incidental to their use, are fellow-servants in the general employment and business. One employed in the care, supervision and ordinary repair of the means and appliances used in a business is engaged in the common service.""^ 574. Rogers v. Ludlow Mfg. Co., 144 Mass. 198, 11 N. E. 77, 59 Am. Rep. 68. See also Rice v. King Philip Mills, 144 Mass. 229, 11 N. E. 101, 59 Am. Rep. 80; Warden v. Old Colony R. Co., 137 Mass. 204. 575. Johnson v. Boston Tow Boat Co., 136 Mass. 209, 46 Am. Rep. 458; McKinnon v. Norcross, 148 Mass. 533, 20 N. E. 183, 3 L. R. A. 320; McGee v. Boston Cordage Co., 139 Mass. 445, 1 N. E. 745. This rule was stated and applied to the keeping of a road in repair. King v. Boston & W. R. Co., 9 Cush. (Mass.) 112. Also to the proper adjustment and fasten- ings of parts of a machine. Smith V. LoweU Mfg. Co., 124 Mass. 114. Also to appliances used on board a vessel in hoisting and lowering merchandise. Johnson v. Boston Tow Boat Co., 135 Mass. 209, 46 Am. Rep. 458. And also where it was the custom to have cars re- paired at the place by a competent person employed for that purpose, _ _ 1. M. & s.— as and it was the duty of the workmen to set them aside until he came. Dodge V. Boston & A. R. Co., 155 Mass. 448, 29 N. E. 1086. Yet where an employee was injured by means of a defective rope used in connection with an appliance, the liability of the master was held a question for the jury. A distinc- tion was made between the case and Johnson v. Boston Tow Boat Co., supra, in this, that in the latter the servant was to make repairs or supply the defective tool from means provided and at hand, while in the other they were not actually provided, but he must ask for them, thus the ultimate control of the repairs in the latter case was with those who were to furnish the means, rather than those who were to use them. Daley v. Boston & A. R. Co., 147 Mass. 101, 16 N. E. 690. The same in principle was held where rotten stakes were used to hold a load on a platform car. The defendant furnished enough good lumber for the making of the 514 Master and Seevant. § 233 Employer's liability act. Chap. 20, Laws of 1887. The act is given in full under head of Fellow-servants, Massachusetts. The first clause of section 1 of said Act provides: "Where after the passage of this act personal injury is caused to an em- ployee, who is himself in the exercise of due care and dihgence at the time, by reason of any defect in the condi- tion of the ways, works and machinery connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negli- gence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works or machinery were in proper condi- tion, the employee, or in case the injury results in death, the legal representatives of such employee, shall have the same right of compensation as if the employee had not been an employee of nor in the service of the employer nor en- gaged in its work." In those cases within the words of the statute above stated, in which the common law gives an employee a remedy, he still has a right to sue under the same conditions and to recover damages to the same extent as if the statute had not been passed. Also, so far as said clause is concerned, the requirement of the notice as a con- stakes. It was sawed into stakes ive condition, it appearing that the under the direction of a foreman, engine had to a certain extent been The distinction was made that the rebuilt. Presumedly it was classed stakes were not made unfit by use, within the rule applicable to appli- but rather a case of furnishing an ances furnished and not repairs, implement never fit for use. That Ford v. Fitchburg R. Co., 110 Mass. the evidence did not show there 240, 14 Am. Rep. 598. It was not was sufQcient supply of sound and applied to tell tales out of order, suitable stakes. It shows only that Facts did not appear which would the defendant supplied lumber charge the defendant with notice enough for the purpose and men from the length of time it had been enough to prepare the stakes, out of order, but the evidence was Mclntyre v. Boston & M. R. Co., sufficient to charge it with failure 163 Mass. 189, 39 N. E. 1012. The to make proper examination which rule evidently is limited in that if made would have led to a dis- state to ordinary repairs. The covery of its defective condition, master was held liable where a Warden v. Old Colony R. Co., boiler exploded owing to its defect- 137 Mass. 204. § 233 Sate Appliances. 515 dition to maintaining actions under this act, only applies to those extremes, if any, lying outside the common law rule, but embraced by such clause of sec. 1 ; unless a case shall arise in which the plaintiff, although he has a remedy at common law, insists on reljdng upon the statute alone. "^ This clause of the statute does not give a right of action against the employer for the neghgence of a f eUow-servant in handling or using a machine, tool or appKance, which is itself in proper condition. It so far changes the common law as to give a right of action to a person injm-ed by a defect in the machine, tool or appHanee itself, which is furnished for his use, although such defect arose from the negligence of a fellow-servant, whose duty it was to see that the machine, tool or appUance was in proper condi- tion."' The right of an employee to maintain an action under the statute is not identical with his right to maintain an action at common law. It may be greater or it may be less. It provides in certain specified cases "such employee shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer, nor engaged in his work." In other words, in the class of cases speci- fied the defense of common employment with the person through whose neghgence the injury was caused, is taken away.^'* Unsuitableness a defect under statute. An unsuitableness of "ways, works and machinery" for work intended to be done and actually done by them, is a defect, within the meaning of the statute, although they are perfect of their kind, in good repair and stdtable for work done in the employer's business, other than the work 576. Ryalls v. Mechanics' 577. Ashley v. Hart, 147 Mass. MiUs, 150 Mass. 190, 22 N. E. 766, 573, 18 N. E. 416, 1 L. R. A. 355. 5 L. R. A. 667; Coughlin V. Boston 578. Coffee v. New York, N. H. Tow Boat Co., 151 Mass. 92, 23 N. & H. R. Co., 155 Mass. 21, 28 N. E. 721; Clark v. Merchants' & E. 1128. Miners' Trans. Co., 151 Mass. 352, 24 N. E. 49. 516 Masteb and Seevaitt. § 233 done, in doing -whicli their unsuitableness causes injiuy. An employer cannot say that he is not at fault in his ways, works and machinery, when they, used as he intends them to be used, are unsmtable for the work."' Issues presented under common law and statute, election. Where a declaration contains counts atconxmon law and under the employer's liability act presenting different issues and involving different UabiUties in damages, it is within the discretion of the presiding judge to require the plaintiff to elect whether he will go to the jury on the common law counts or those framed imder the statute.*'" Statute embraces direction to use defective tempo- rary appliance. The statute (Rev. Laws, c. 106, sec. 711), does not limit the right of recovery to injuries caused by defective permanent apphances, but embraces wrongs arising from neghgence of the employer or those representing him, in directing an employee to use an unsafe appliance, though it may be only a temporary character, such as staging. The liabUity of the employer is not limited to the actual knowledge of his superintendent of the defect, but includes his negligence in not ascertaining the defect, where dis- coverable by due dihgence.*" Defense of assumption of risk not taken away. While the statute has taken away from the defendant in the cases mentioned in it, the defense that the injury was caused by the act of a fellow-servant, it has not taken away the defense of assumption of the risk.^'^ 579. Geloneek v. Dean Steam 189 Mass. 336, 75 N. E. 733; Don- Pump Co., 165 Mass. 202, 43 N. E. ovan v. York Mfg. Co., 189 Mass. 85. 336, 75 N. E. 733. 680. Brady v. Ludlo-w Mfg. 582. O'Maley v. South Boston Co., 154 Mass. 468, 28 N. E. 901. G. L. Co., 158 Mass. 135, 32 N. E. 581. Feney V.York Mfg. Co., 1119, 47 L. R. A. 161. § 233 Safe Appliances. 517 Proof by plaintiff of exercise of ordinary care. In actions brought under this section of the statute, the plaintiff must prove that at the time of the accident he was in the exercise of due care and diligence.^*' If, however, the circumstances attending an accident are in evidence, the mere absence of evidence of fault on the part of the person injured may justify an inference of due care; but where there is an entire absence of evidence as to what a person was doing at the time of the accident, it is not enough to show that one conjectm-e is more prob- able than another in order that his administrator or next of kin may recover. There must be some evidence to show that he was in the exercise of due care.^** Liability same as at common law. The UabUity of an employer for defects in ways, works and machinery is the same as at common law.^" Belt. Whether a belt in a cotton mill which was alleged to be old and unfit, was a defect in the condition of the "ways, works or machinery" arising from the negUgence of the employer or of a person intrusted by it with the duty of seeing that it was in proper condition, was a question for the jury.**^ Blasts unexploded. The mere fact that there remain, after blasts, unex- ploded cartridges injuring a workman while trying to with- draw them, does not show a defect in the "ways, works or machinery" within the meaning of the employer's lia- bility act.^" 583. Shea v. Boston & M. R. F. D. & C. Co., 194 Mass. 412, Co., 154 Mass. 31, 27 N. E. 672. 80 N. E. 460, 120 Am. St. Rep. 584. Tyndale v. Old Colony 562. R. Co., 156 Mass. 503, 31 N. E. 586. Boucher v. Robeson Mills, 655; Irwin v. Alley, 158 Mass. 182 Mass. 500, 65 N. E. 819. 249, 33 N. E. 517. See also con- 587. Welch v. Grace, 167 Mass. tributory negligence. 590, 46 N. E. 387. 585. McCafferty v. Lowando's 518 Master and Seevant. § 233 Building in process of construction. A building in process of construction is not ways or works or machinery within the meaning of the statute."* Car. A car used by a railroad company, is a part of the "ways, works and machinery" of the company using it, within the statute, whether such cars are owned by it or some other company. "° Chain. A finding of negligence on the part of a master was sus- tained where it appeared that a link of a chain which broke was defective as a result of a co-employee's act in overheating it.*'" Cotton bales. Bales of cotton piled in a warehouse were not a part of the "ways, works or machinery" of the employer.*" Electric wires. A wire which is a part of the electric signal system used to connect the points of rails so as to insure the transmission of the electrical ciu-rent, is a part of the "ways, works and machinery," within the statute.*'^ Exploder in blasting operations. An exploder filled with explosive substances, discharged by electricity, which is bought to be used and instantly consumed in producing an explosion in blasting, is not a part of the "ways, works or machinery," within the statute.*'' 688. Beique v. Hosmer, 169 591. Cahill v. Boston & M. R. Mass. 541, 48 N. E. 338. R., 190 Mass. 421, 76 N. B. 911. 589. Bowers v. Connecticut 692. Brouillette v. Connecticut River R. Co., 162 Mass. 312, 38 River R. Co., 162 Mass. 198, 38 N. E. 508. N. E. 507. 590. Morena v. Winston, 194 593. Shea v. Wellington, 163 Mass. 378, 80 N. E. 473. Mass. 364, 40 N. E. 173. § 233 Saj'e Appliances. 519 Floor in mill. The sagging of the floor in a mill, so as to throw ma- chinery out of alignment and thus cause an oil cup to fall upon the employee, was such a defect in the ways, works and machinery as would permit a recovery both at common law and under the statute (chap. 370, St. 1906; eh. 514, St. 1909, sec. 128)."* Foreign car. Where a brakeman was injured by the nut and brake wheel upon a brake staff of a car coming off, such car belonging to another company, and being at the time detached from a train, and was at the time empty and being returned at the defendant's yard to its owner, at an adjacent yard in the same place, it was held that these facts were insufficient to show that the car, at the time of the accident, was a part of the ways, works or machinery connected with or used in the business of the defendant. It was said, the want of ownership by the defendant is not of much significance; but the terms "ways, works and machinery connected with or used in the business of the employer," mean something in the place or means, appliances or instrumentalities provided by the employer for doing or carrying on the work which is to be done. There must be a defect in something which can in some sense be said to be provided by the employer. Without going so far as to include a car received from another road and in actual use by the defendant for the transportation of freight for which the defendant is to be paid or a car which actually forms a part of a train, such a car, under the circimistances stated, did not fall within the enumeration of the statute.^" Gang plank. Assuming that a gang plank is part of the "ways, works and machinery" of the employer, the master cannot be 594. Howard v. Fall River 595. Coffee v. New York, N. Iron Works Co., 203 Mass. 273, H. & H. R. Co., 155 Mass. 21, 28 89 N. E. 615. N. E. 1128. 520 Master and Seevant. § 233 held liable for failure to furnish one, where it does not appear that he had not furnished a suitable one, and if it be the duty of a foreman to see to it, nothing appeared to show whether the sole or principal duty of such foreman was that of superintendence or that it was a part of his duty to see that it was in place at the time of the acci- dent.*«« Hatch on vessel. A hatch in a vessel is not a part of the "ways, works or machinery" of a stevedore engaged in unloading the vessel, who had no control over such hatch, and hence he is not hable to one of his servants for injuries sustained by reason of the hatch being defective.^" The hatchway of a vessel is not "ways, works or machinery" of an employer engaged in loading \meat thereon, where not owned by such employer, and hence the statute does not apply where an employee of such em- ployer stepped into an open hatchway and was injured/'^ Ladders- Two ladders spheed together by the workt^en who are to use them, do not constitute a part of the "ways, works or machinery" of an employer under the statute/'' Moulds. Temporary dampness in the moulds in a foundry which can be ascertained only at the moment of setting them up, which causes an explosion when the melted iron is poured into them, is not a defect in the machinery which wiU permit a recovery against the employer by a servant thus injured, either at common law or under the employer's habihty act.*"" 696. Trimble v. WMtin Maoh. ond Co., 191 Mass. 479, 78 N. E. Works, 172 Mass. 150, 51 N. E. 115. 463. 599. McKay v. Hand, 168 597. Hyde v. Booth, 188 Mass. Mass. 270, 47 N. E. 104. 290, 74 N. E. 337. 600. Whittaker v. Bent, 167 598. Bamford v. G. H. Ham- Mass. 588, 46 N. E. 121. § 233 Safe Appliances. 521 Platform. A platform, erected under the direction of a foreman, is an appliance provided by the master through its super- intendent for use of his employee.^" Rubbish on floor. A mere temporary staging, consisting of planks across two hme barrels, tipped, causing a mason thereon to faU. The staging was arranged by a laborer with his consent. The cause of the tipping was that one of the barrels rested insecurely upon some rubbish. The presence of the rub- bish it was held, did not constitute a defect in the "ways, ■works or machinery." It was merely accidental and temporary. Nor could the laborer be said to have been a person intrusted by the defendants with the duty of seeing that the ways or works were in proper condition. The statute does not apply to a mere laborer working under or with others, even though it may be a part of his duties at some particTilar moment in the progress of the work to look after and attend to certain instrumentahties.^"^ Set screw. A set screw which is not out of order and which is a common device for the purpose for which it is used, does not of itseK constitute a defect in the "ways, works and machinery."*"^ Scope of employment. Where an employee of his own free will, undertook to make repairs in a miU on a defective pidley, outside of his regular duties, at the suggestion of a fellow-workman, and he was injured after he had built the staging and prior to commencing the work, by the belt coming off, it was held he could not maintain an action imder this clause of 601. White v. WiUiam H. Perry WMttier Mach. Co., 154 Mass. 29, Co., 190 Mass. 99, 76 N. B. 512. 27 N. E. 768. 602. O'Connor v. Neal, 153 603. Donahue v. Washburn & Mass. 281, 26 N. E. 857; May v. M. Mfg. Co., 169 Mass. 574, 48 N. E. 842. 522 Master and Servant. § 233 the statute. That if it was assumed that it was intended to abolish the defense of assumed risk, and the finding of the jury that he was in the exercise of due car was binding on the court, yet he assumed the risk independent of any impUed terms in his contract of service, as one not a serv- ant, and invited upon the premises on business of the employer, would have taken the risk, if he voluntarily put himself in the same situation knowing and appreciating the danger.^"* Snow on roof. Evidence of failure to remove an accumulation of snow upon a building, whereby it fell, supported an allegation of a defect in the ways and works. ^"^ Staging. A temporary staging put up by masons in the employ of a contractor for the purpose of erecting a building on the land of a third person, is not a part of the "ways or works" within the statute. These words in the statute refer to ways or works of a permanent character, such as are con- nected with or used in the business of an employer; and they do not apply to a temporary structure hke the stag- ing in question erected on the land of a third person.*"* Nor do they apply to a temporary staging put up by an employee and his fellow-servants for the purpose of being used in painting the outside of a building.*"' It was held, however, that a staging fifteen feet high, twenty feet long and five feet wide, erected in a saw mill yard by the side of a wood pile, for the purpose of enabhng the workmen to pile wood higher, and which was taken down and put up from time to time, in different places, and intended to be used from four days to a week at a time 604. Mellor V. Merctants' Mfg. 606. Burns v. Washburn, 160 Co., 150 Mass. 362, 23 N. E. 100, Mass. 457, 36 N. E. 199. 5 L. R. A. 792. 607. Adasken v. Gilbert, 165 605. Dolan v. AUey, 153 Mass. Mass. 443, 43 N. E. 199. 380, 26 N. E. 989. § 233 Safe Appliances. 523 in each place, was a part of the "ways, works or machin- ery" of the mill within the statute.*"^ If there is no defect in the material, place or construc- tion of a staging, the presence of a stone upon it by the falling of which injm-ies are occasioned a workmen, is not a defect in the "ways, works or machinery. "^"^ A loose staging formed by horses and planks, blocks being placed thereon to increase the height, was held not a part of the ways, works and machinery of the master mider the statute. It was placed along side of a car by carpen- ters, who had been working upon the car and used by a painter in painting the car, who was injured by reason of the manner of its construction. His only direction was to paint the car when ready, it being left to his discretion as to the staging he should use."" Stairs on premises of another. The plaiatiff, while in the employ of the defendant, was ordered to carry a bar of iron down a flight of move- able stairs leading into, and intended to furnish perma^ nent means of access to, a cellar, in which defendants were making some alterations for the owners of the budding. These steps had been constructed by car- penters employed by the defendants some time before, and were being used by the plaintiff in carrying down the bar of iron while making the alterations in. the cellar, and as he stepped upon the stairs they shpped, resulting in his injury. It was held that imder such conditions they did not adopt the steps as a way used in their business within the statute."^ Stone pile. Stones which were temporarily put in a pile are not a part of the "ways, works and machinery" of the master. "^ 608. Prendible v. Connecticut R. Co., 206 Mass. 463, 92 N. E. 711. River Mfg. Co., 160 Mass. 131, 611. Regan v. Donovan, 159 35 N. E. 675. Mass. 1, 33 N. E. 702. 609. Carroll v. Willcutt, 163 612. Bonin v. Ballard, 196 Mass. 221, 39 N. E. 1016. Mass. 524, 82 N. E. 702. 610. Nichols V. Boston & M. 524 Master and Seevant. § 233 Track of another company. A track belonging to another company, used occasion- ally for the purpose of transferring cars, in common with such other company, does not make the track of each company a part of the "ways, works or machinery" of the other within the meaning of the statute. It was said it may not be necessary, in order to render an employer liable for an injury occurring to an employee, within the meaning of the statute, that they should belong to him; but it should at least appear that he has control of them and that they are used in his business by his author- ity express or implied."' A track owned, maintained and repaired by other than the defendant, and used by the defendant under a contract with such owners for delivery of freight in the latter's yard, is no part of the railroad company's "ways" under the statute. It was said: "The words of the statute mean that the defect must be one which the employer has a right to remedy, if he does discover it, and of a kind which it is possible to charge a servant with the duty of setting right." "^ Trench; sewer. Whether an action for the death of a person occasioned while employed in the construction of "ways, works or machinery," can be maintained under this statute, was discussed but not determined. The doctrine of the English courts applied to a similar statute was stated to be, that it could not; that ways and works mean the existing and completed works. It was held, however, that recovery could not be had in the particular case where the facts were that the employee was killed by the caving in of a trench by reason of the insufficient shoring of the sides; that suf- ficient material that was sound had been provided; that the shoring and bracing was under the particular charge of such employee."^ 613. Trask v. Old Colony R. B. R. Co., 160 Mass. 260, 35 N. E. Co., 156 Mass. 298, 31 N. E. 6. 547, 22 L. R. A. 283. 614. Engel v. New York, P. & 615. Conroy v. Clinton, 158 Mass. 318. 33 N. E. 525. § 233 Safe Appliances. 525 The Kability of a bank of earth upon which laborers are employed at work, to fall, when undermined, if not shored up, cannot be said to be "a defect in the condition of the ways, works or machinery connected with or used in the business of the employer," when the work in the bank is simply the levehng of it for the purpose of grading the land of a third person. The statute has no application to a ease where a laborer is injured imder such conditions. *^^ Truck. A truck which consists of axles, wheels and a frame all fastened together and fitted to the tracks, and which is in constant use with other trucks as a part of the appU- ances of the repair shop of a raUroad corporation, is a part of the "ways, works or machinery.""' Walk. A walk from a factory to an outhouse for use of em- ployees might be said to constitute a part of the perma- nent ways of the factory, which it was the employer's duty to maintain in a suitable and reasonably safe condition. It was evidence of negligence on the part of such employer to permit ice and snow to accumulate thereon, so as to render the surface hard, uneven and dangerous, and so continue it, for several days. A servant using such walk was held not guilty of contributory negUgence as matter of law. "^ A mere temporary walk of three planks fastened together and laid on top of walls five feet from the ground over which a laborer was required to walk, was not "ways or works" within the statute."' Wooden lever. A wooden lever broke under very exceptional circum- stances. It was not defective. The employer kept a stock 616. Lynch v. AUyn, 160 Mass. 618. Urquhart v. Smitt & An- 248, 35 N. E. 550. thony Co., 192 Mass. 257, 78 N. E. 617. Gunn v. New York, N. H. 410. & H. R. Co., 171 Mass. 417, 50 619. Morris v. Walworth Mfg. N E 1031 Co., 181 Mass. 326, 63 N. E. 910. 526 Mastee and Servant, § 234 of lumber on hand, of the proper size from which the employee could have obtained a new lever by asking for it. It was held the action could not be maintained. It was said if such a stick can be said to be a part of the works or machinery, the defendant's duty to the deceased did not require it to see that he called for a proper one. It was enough that it had proper ones within convenient reach. ^2° § 234. Mississippi. Common law rule. The common law rule in Mississippi appears to be that in respect to repairs, the master may delegate the duty to employees and thus avoid responsibility. Thus it was stated: "The corporation will have done all that could reasonably be required of it, when it exercised cir- cumspection and prudence in appointing employees to observe the road, make the repairs and when it put at their disposal suitable material for the work, and when it caused suitable supervision to be had over these local employees. If a part of the road should become unsafe because of the neglect of such employees to make repairs, and should so continue for a length of time suf&cient to induce the presumption that the company knew of it or ought to have known of it, then it is negligent and careless and is liable to other employees for injuries resulting there- from.*^^ Constitutional provision. The constitution of 1890, sec. 193, provides that "every employee of a railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employees as are allowed by law to other persons not employees where such injury results from the neghgence of a superior of&cer or a person having the right of control or to direct the service of the party injured." 620. Allen v. G. W. & F. Smith 621. Hood v. Mississippi Cent. Iron Co., 160 Mass. 557, 36 N. B. R. Co., 50 Miss, 178. 581. § 235 Sape Appliances. 527 Code provisions. The Code of 1892, sec. 3559, is the same with the addi- tion "and also where the injury results from the neghgence of fellow-servants in another department of labor from that of the party injured or by a fellow-servant on another train of cars or one engaged about another piece of work." The act further provides that knowledge of an employee injured by the defective or imsafe character or condition of machinery, ways or apphances, shall not be a defense to an action for an injiuy caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them. Acts relate to railroads only. The constitution and act, hke the statutes of most of the states, and unlike those of Massachusetts and Ala- bama, relates to railroads only, and hence as to other employments the common law rule prevails. While the con- stitution does not seem to include employees whose duties are in respect to the repair of appliances, the statute evidently does, and its effect is that a railroad company is responsible for injuries suJffered by employees resulting from the negligence of fellow-servants whose duties are in respect to the repair of the apphances and premises of the company. § 235. New York. A long Kne of cases in New York declare the rule that the duty to maintain apphance in proper condition of re- pair is so far personal that the master is responsible for the manner in which it is performed whether by himself or by a subordinate of whatever grade to whom that duty has been delegated. That such duty is not absolute but relative. He is only bound to exercise due care to that end.^22 622. FuUer v. Jewett, 80 N. Y. N. E. 609, 79 Am. St. Rep. 600; 46, 36 Am. Rep. 575; Byrne v. Cone v. Delaware, L. & W. R. Co., Eastman Co., 163 N. Y. 461, 57 N. 81 N. Y. 206, 37 Am. Rep. 491; E. 738; Eaton v. New York C. Mann v. President, etc., of D. & H. & H. R. R. Co., 163 N. Y. 391, 57 C. Co., 91 N. Y. 495. The only 528 Master and Servant. §§236, 237 § 236. New Jersey. The New Jersey court in declaring the rule in that state, stated: "It is a matter of judicial disagreement whether the master can discharge the duty of examining and ascertaining whether appUances have become unfit or unsafe from wear and tear or otherwise, and the similar duty of keeping tools and appKances in repair, by selecting and employing competent persons to make inspection and repairs. In oiu" courts it is held that the master's duty can thus be discharged. ""^^ § 237. North Carolina. It was held a duty personal to the master to keep frames in a cotton mill in working order.^^* And also to maintain automatic couplers in proper condition and repair. *^^ case in conflict ■with, this rule decided by the courts of appeals is Schulz V. Rohe, 149 N. Y. 132, 43 N. E. 420. It was there held that the neglect of an engineer employed for the purpose of keeping the machines in a manufacturing estab- lishment in order, to repair a defect which he had been directed to remedy, was the negligence of a co- servant as regards an operative injured by reason thereof. It would seem to foUow that the master's duty is to see that his appliances are in order is fuUy per- formed by directing an employee to remedy a defect. By a reference to the foregoing cases, it will be found that the duty of inspection is personal to the master, and if negligently performed the respon- sibility is his. The case of Schulz V. Rohe, supra, does not seem to have been subsequently cited or overruled, and it will be noticed also that no cases are cited therein to sustain the conclusion reached. In Fuller v. Jewett, supra, it was expressly held that the master was responsible for the negligence of mechanics in making repairs upon an engine. 623. Essex Co. Eleo. Co. v. KeUey, 57 N. J. L. 100, 29 Atl. 427, citing Harrison v. Railway Co., 31 N. J. L. 293; Rogers L. & M. Works V. Hand, 50 N. J. L. 464, 14 Atl. 766. See also Van Steen- burgh V. Thornton, 58 N. J. L. 160, 33 Atl. 380; Nord Deutscher Lloyd Steamship Co. v. Ingebregsten, 57 N. J. L. 400, 31 Atl. 619, 51 Am. St. Rep. 604; McAndrews v. Burns, 39 N. J. L. 117. 624. Sibbert v. Scotland Cotton MiUs, 145 N. C. 308, 59 S. E. 79. 625. Elmore v. Seaboard Air Line R. Co., 132 N. C. 865, 44 S. E. 620. § 238 Safe Appliances. 529 § 238. Ohio. Common law. With respect to maintaining appliances in repair, the duty of the master is that of vigilance. Reasonable care in the emplojonent of careful and competent servants is required, but the exercise of reasonable care by such servants is at the risk of his fellow-servants. The duty of a railroad, in respect to its cars and apphances, is to employ competent inspectors and repairers. If this is done, its duty to other operatives of the road is performed.*^* Pleading. In Ohio, the injured plaintiff must allege and estabKsh that he was ignorant of the defect from which the injury resulted, or that having knowledge of such defect he in- formed the employer and continued in the service, relying upon his promise to remedy the defect. ^^^ Statute. 87 Ohio Laws 149, Act of April 2, 1890. Section 2 of the statute provides: "It shall be unlawful for any corpora- tion to knowingly use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto are in any manner defective. If the employee of any such corporation shall receive an injury by reason of any defect in any ear or loco- motive or the machinery or attachments thereto belong- ing, owned and operated or being run and operated by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injtury is so sustained; and where the fact of such defect shaU be made to appear in the trial of any action in the courts of this state, brought by such employee or his legal represen- tative against any railroad corporation for damages on account of such injuries so received, the same shall be prima facie evidence of neghgence on the part of the corporation." It will be noted that this statute applies 626. Railroad Co. v. Fitzpa- 627. Hesse v. Columbus, S. & trick, 42 Ohio St. 318; Railroad H. R. Co., 58 Ohio. St. 167, 50 Co. V. Webb, 12 Ohio St. 475. N. E. 354. 1 M. 4 8.-34 530 Mastee akd Servant. ^239 only to corporations operating locomotives and cars and does not disturb the conunon law rule as to other employ- ments. This statute has the effect to charge the master with knowledge of the defect causing injury. Its force is wholly expended in relieving the servant of the duty of establishing that the master had or should have had notice of the defect. His duty to establish that the appli- ance was defective, and that he did not know of the de- fect, remains unchanged.*^' To overcome the effect of such knowledge chargeable by the provisions of the above act, the company must show that it did not have such knowledge and that it used due diligence to ascertain and remedy such defects. The presumption of diligence raised by proof of the employment of competent and careful employees wiU not be suflS-cient to overcome the effect of knowledge which by this statute it is deemed to have. The defects are also made prima facie evidence of negUgence on the part of such corporation, and by force of the statute the burden is thrown upon it to show by proof that it used due dili- gence and was not guilty of negligence. *^^ It will also be noted that this statute only relates to defects in and about cars and locomotives. It does not in express terms nor by impUcation apply to other apph- ances nor to the condition of tracks or other premises of a railroad corporation. § 239. Oregon. The coxirt virtually declare that, in respect to the con- dition of appliances, a servant whose duty it is to keep them in proper condition, is the feUow-servant of those who use them, but if the master knows the servant has not performed his duty, then the rule of feUow-servant does apply. ^'^ 628. Hesse v. Columbus, S. & Co. v. Thompson, 27 C. C. A. 333, H. R. Co., 58 Ohio St. 167, 50 82 Fed. 720. N. E. 354. 630. Allen v. Standard Box & 629. Columbus, H. V. & T. R. Lumber Co., 53 Oreg. 10, 96 Pac. Co. V. Erick, 51 Ohio St. 146, 37 1109, 97 Pao. 555, 98 Pac. 509. N. E. 128; Pittsburgh & W. R. § 240 Safe Appliances. 531 § 240. Wisconsin. The rule in Wisconsin -was declared as follows: "When the master has provided for the servant a safe place to work, safe tools and appliances and competent and careful co-employees, and has given sufficient warning of hidden or latent dangers, he may commit to the employees the detaUs of the work, including incidental repairs or readjustment of machinery which can easUy be made by the employees themselves from proper mate- rials furnished by the master; and such servants thus prosecuting the work of making such readjustment or incidental repairs become feUow-servants, whatever their rank."«" 631. Williams v. North Wis. National Furnace Co., 84 Wis. Lumber Co., 124 Wis. 328, 102 636, 54 N. W. 1016. N. W. 589; Van den Heuvel v. 532 Master and Sebvakt. K. INSPECTION. Seo. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. A. EXISTBNCE OF DuTT. Duty of master in general. Duty as dependent upon own- ership of appliances. Where appliances procured from reliable dealer or man- ufacturer. Doctrine as stated by Mich- igan court. Doctrine as stated by New York court. Doctrine as stated by Unit- ed States supreme court. Doctrine as stated by fed- eral court of appeals. In Wisconsin. In Massachusetts. Where there are no visible defects. Where superficial examin- ation would discover de- fects. Where appliance constructed by master. Duty as a continuing one. Defects from age and long use. Elevators. Engines. Inspection incidental to use of appliance. Doctrine not strictly fol- lowed. Duty includes premises. Inspection of quarry for un- exploded blasts. Inspection of mines and ap- pliances therein. Inspection of "common tools." Inspection after unusual oc- currence. 253. Statutory iaspection. Seo. 264. Improbable occurrences. 255. Temporary conditions. 255a.Appliances employees have no right to iaterf ere with. 255b.System of inspection. 256. Rules requiring servants to inspect. 257. Effect of custom. 258. Duty as delegable. Rule not universal. Duty to inspect for piirpose of keeping appliances in working order. B. SUPFICIENCT. 259. Ordinary care. 260. Character and use as test. 261. Frequency of inspection. 262. Tools required. 263. Sufflciency as determined by numbers of inspectors. 264. Effect of custom. 265. Oifieial inspection. 266. Illustrations of what con- stitutes reasonable in- spection. Boilers. Brakes and brake rods. Cars. Chains. Drawbars. Electric lamp. Elevators. Engine. Eye bolt. Hand car, handle on. Hook. Machine. Plate insecurely fastened over place of work. Premises. §241 Sape Appliances. 533 See. Rods supporting train. Sling used in unloading vessel. Rope holding swinging scaf- fold. Telegraph pole. Top lift. Unexploded blast. C. Inspection op Foreign Cars. 267. General rule. 268. Duty as performed by em- ployment of competent servants. Contrary doctrine. 269. Duty as that of ordinary in- spection. 270. Expression "duty same as if owned" explained. Sec. 271. Distinction as to duty be- tween foreign and domes- tic cais. 272. Duty upon discovery of de- fects. 273. Reasonable time to inspect. 274. Duty on part of delivering company. Rule as applicable to sidings where cars are delivered. Rule in South Carolina. Foreign cars used in com- pany's own business. Immaterial that cars are not to be sent out on road. D. Proximate Cause. Failure to inspect as proxi- imate cause. 275. 276. 277. 278. 279. A. Existence of Duty. § 241. Duty of master in general. Subject to the rules hereinafter stated, it is the duty of the master to use reasonable care in inspecting the appliances used by his servants, to see that they are safe and in condition to be used.^'^ However, where machinery is in good repair, the master is not liable for failm-e to inspect as to the cleaning and oU- ing thereof;^'' and there is no duty to inspect in order to 632. Texas Short Line Ry. Co. V. Waymire, 89 S. W. (Tex. Civ. App.) 452; The Etheked, 96 Fed. 446; Ohio & M. Ry. Co. v. Pearoy, 128 Ind. 197, 27 N. E. 479; Louisville, E. & St. L. Consol. R. Co. V. Utz, 133 Ind. 265, 32 N. E. 881; Solomon R. Co. v. Jones, 30 Kan. 601, 2 Pao. 657; Atchison, T. & S. F. R. Co. V. Kingscott, 65 Kan. 131, 69 Pao. 184; Henderson Brewing Co. v. Folden, 25 Ky. L. Rep. 969, 76 S. W. 520; Budge v. Morgan's L. & T. R. & S. S. Co., 108 La. 349, 32 So. 535, 58 L. R. A. 333; Twombly v. Consolidated Electric Light Co., 98 Me. 353, 57 Atl. 85, 64 L. R. A. 551 ; Johnson v. Chesapeake & O. R. Co., 36 W. Va. 73, 14 S. E. 432. 633. Quigley v. Levering, 167 N. Y. 58, 60 N. E. 276, 54 L. R. A. 62. 534 Master and Servant. §241 discover if an appliance is suitable for a purpose not intended/'* Among the articles as to which inspection has been held necessary are hooks,*'^ belt lacings,"" bolts/" brakes,*'* 634. Babcock Bros. Lumber Co. V. Johnson, 120 Ga. 1030, 48 S. E. 438. 635. Spicer v. South. Boston Iron Co., 138 Mass. 426. Whether the defects in a hook attached to a cable, and when hooked into a ear of stone, broke and subse- quently was found to have a flaw, showing that it had been broken, should have been known to the master, was a question for the jury. Momence Stone Co. v. Groves, 197 lU. 88, 64 N. E. 335. 636. It was held that the mas- ter had not performed his whole duty by furnishing suitable mate- rial and a competent servant to lace the belts. That it owed the duty of inspecting the lacing to ascertain its condition as to be- coming loose or otherwise. Gil- more V. American Tube & Stamp- ing Co., 79 Conn. 498, 66 Atl. 4. 637. Whether the faulty con- dition of a bolt ought to have been discovered upon proper inspec- tion was a question for the jury. Illinois Steel Co. v. Ostrowski, 194 111. 376, 62 N. E. 822. A bolt in a brake beam projected in the w8jy of a brakeman coupling cars. Evi- dently it was a fault in the con- struction. It was held a question for the jury whether it eonsti- stuted a defect, and also whether it had existed so long or was of such a character that the defend- ant by the use of ordinary care could have discovered and reme- died it. That negligence might be inferred without proof of actual notice of the defect. Wedgwood V. Chicago & N. W. R. Co., 44 Wis. 44. 638. Galveston, H. & S. A. R. Co. V. Edmunds, 26 S. W. (Tex. Civ. App.) 633; Johnson v. Rich- mond & D. R. Co., 81 N. C. 453. The duty of inspection of cars is personal to the master and includes defects in the adjustment of the brakes which render them ineffec- tual, however arising, just as fully as any other defect. Fogarty v. Southern Pac. Co., 151 Cal. 785, 91 Pac. 650. The evidence was held sufficient to sustain a finding that certain brake attachments upon a dredge machine were de- fective and unsuitable for the pur- pose of holding the brake in place at the ends of the supporting arms ; and it was negligence in failing to inspect and repair the same. En- gler V. La Crosse Dredging Co., 106 Minn. 74, 117 N. W. 242. A jury was justified in inferring that the fact that the nut on the rod which held the brake wheel in place, was too large, could have been determined by proper inspec- tion. Union Stock-Yards Co. v. Goodwin, 57 Neb. 138, 77 N. W. 357. Where a brakeman was in- jured while upon a down grade by reason of the pin holding the brake rod in place having come out, it was held these facts present- ed a case for the jury as to the de- fendant's negligence. That from certain conditions existing, a prop- er inference might be drawn that the pin was out when the train left §241 Sape Appliances. 535 bridges/^' carriage in saw miU/^" cars,^*^ car -wheels,'*' the starting point, and, if such was the fact, a proper inspection would have discovered it. Bailey v. Rome W. & 0. R. Co., 139 N. Y. 302, 34 N. E. 918. Yet it was held in an- other case that brakemen must as- certain for themselves whether brakes are in proper condition be- fore descending a grade, and neg- lect so to do is negligence prevent- ing a recovery in case of injury. La Croy v. New York, L. E. & W. R. Co., 132 N. Y. 670, 30 N. E. 391. 639. The duty of a railroad company is to make reasonably fre- quent and reasonably thorough inspection of its bridges and to ap- ply ordinary and usual tests to as- certain their condition as to de- fects. Chicago G. W. R. Co. v. Healy, 30 C. C. A. 11, 86 Fed. 245. Where a railroad company pur- chased a road of another company, of which an existing bridge formed a part, which bridge at the time of the purchase was unsafe and dan- gerous by reason of defects in its original plan and construction, and such defects were obvious to the eye of a skilled inspector, and could easily have been ascertained by proper examination, it was held it was negligence on the part of the corporation to continue its use without such an inspection and the correction of the defects that thus "i^hfc to have been disclosed; that it was liable to an employee upon one of its trains for injuries received by the fall of the bridge, and this though the bridge had been in use for several years before the pur- chase. Vosburgh v. Lake Shore & M. S. R. Co., 94 N. Y. 374, 46 Am. Rep. 148. 640. A case as to the master's negligence was made for the jury where the rod controlling the movement of a carriage in a saw mill broke, permitting the carriage to forcibly return, thus throwing an employee therefrom and causing him injury, where, in addition to the fact of the breaking, there was evidence to show that the screw joint was not sufBciently tight, the parting of the rod being at that point. Gomidak v. C. A. Smith Lumber Co., 98 Minn. 149, 107 N. W. 542. 641. It was held proper to show that it was not a custom to inspect cars coming from a certain direc- tion at an important termini, in connection with proof that an inspection at such point was re- quired for the protection of em- ployees, as it might tend to show that proper rules for inspection had not been provided. Coffee v. New York, N. H. & H. R. Co., 155 Mass. 21, 28 N. E. 1128. Regardless of rules, the law imposes the duty upon a railroad company to make proper inspection of its cars. Kentucky Cent. R. Co. v. Carr, 19 Ky. L. Rep. 1172, 43 S. W. 193. But the proprietor of a coal shed into which a railroad company ran cars to be unloaded by his em- ployees, owes no duty to such em- ployees to inspect such cars. Such cars are not a part of such pro- prietor's ways, works and ma- chinery within the Massachusetts statute. Dunn v. Boston & N. St. R. Co., 189 Mass. 62, 75 N. E. 75, 109 Am. St. Rep. 601. 642. A railroad company is bound to see to it, at the proper 536 Masteb and Sebvant. §241 chains,"' coupling chains,'^* coupling Knks,"' crank of hoisting apparatus,"* door of box oar,*^' drawbars"' inspection station, that the wheels of the cars ui a freight train about to be drawn out upon the road are in a safe and proper condition. Unon Pao. R. Co. v. Daniels, 152 U. S. 684, 38 L. Ed. 597, 14 Sup. Ct. Rep. 756. 643. It was held a question for the jury whether it was the duty of the master to inspect a chain before putting it to use in supporting a heavy beam in defendant's mill, the work being in connection with the making of some changes in the mm. The chain broke injuring an employee. MoGuire v. Waterloo & C. F. U. M. Co., 137 Iowa, 447, 113 N. W. 850. It was however held to be the duty of an employer to inspect a chain upon its pur- chase. Finnerty v. Burnham, 205 Pa. 305, 54 Atl. 996. 644. It was stated that the duty on the part of the master is to make frequent inspections of its appli- ances, and it was held it should have ascertained that the chain of a coupling was too short, it having been mended, and hence was neg- ligent in not discovering it and remedying the defect. Rush v. Oregon Power Co., 51 Oreg. 619, 95 Pae. 193. 645. It was held that the mas- ter's duty of inspection extended to coupling links selected by em- ployees. Louisville, N. A. & C. R. Co. v. HoweU, 147 Ind. 266, 45 N. E. 684. It is held otherwise by a majority of the courts. See supra, 646. It was stated that the insufficient weld of the handle or crank of a hoisting apparatus could have been discovered by proper inspection, and there was a failure of duty on the part of the master in this respect. Murphy v. Mar- ston Coal Co., 183 Mass. 385, 67 N. E. 342. 647. It was said to have been the duty of the defendant to have ascertained the defective condition of the door to a box car and that it was for the jury to determine from the evidence, which was not con- clusive, if the defendant had con- structive notice of such defect. Closson V. Oakes, 69 Minn. 67, 71 N. W. 915. 648. The duty of inspection was held appUcable to the condition of drawbars of cars standing on a side track. Chicago & N. W. R. Co. V. GiUison, 173 111. 264, 50 N. E. 657, 64 Am. St. Rep. 117. An injury having been sustained by an employee from an alleged defect- ive coupling, the drawbar on one of the cars having excessive lateral play, it was a question for the jury whether the defendant was negli- gent in faiUng to inspect the car before it was moved, and also whether the employee was guilty of contributory negligence in attempt- ing to couple the car with knowl- edge that it had not been inspected. Belt R. Co. of Chicago v. Confrey, 209 III. 344, 70 N. E. 773. §241 Sapb Appliances. 537 derrick/^' electric wires/^" elevators,"^ elevator shafts, ^^^ emery wheels,*^' elbow of a steam pipe,*^* engines, *^^ 649. The duty of inspection of a derrick was held personal to the master to discover a defect in the cable. Rinoicotti v. John O'Brien Contracting Co., 77 Conn. 617, 60 Atl. 115, 69 L. R. A. 936. Where employees, during the pro- gress of the work, change the posi- tion of a small derrick from one side of a building to the other, it is the duty of the master to inspect it and see that it is properly ad- justed and guyed. Westbrook v. Crowdies, 58 S. W. (Tex. Civ. App.) 195. 650. Where a telephone com- pany and an diectric railroad com- pany used the same poles for their wires, the law did not absolutely require the telephone company, as between it and its linemen, to inspect and test guy wires and cir- cuit breakers put in by such rail- road company to discover whether they are in a safe condition, but whether the employer or the employee should discharge such duty depended upon the circum- Btances of the particular case. Bergin v. Southern New England Tel. Co., 70 Conn. 54, 38 Atl. 888, 39 L. R. A. 192. 651. It was said that an elevator needs and should have constant care aad inspection. The friction of the rope is constantly wearing the strands, and when they part it is necessarily weakened. Bier V. Standard Mfg. Co., 130 Pa. St. 446, 18 Atl. 637. 652. Evidence that the shaft of an elevator had never been in- spected and that if properly in- spected the break which had grad- ually developed would have been discovered, was held sufficient to justify a finding of negligence on the part of the master. Reinhardt V. Central Lard Co., 74 N. J. L. 9, 64 Atl. 990. 653. But the mere fact that an emery wheel burst while in use does not establish negligence on the part of the master, where it does not appear that inspection or dili- gence on the part of the master could have discovered defects there- in. Saxe V. Walworth Mfg. Co., 191 Mass. 338, 77 N. E. 883, 114 Am. St. Rep. 613. 654. It was said if a proper inspection would have disclosed a defect in the elbow of a steam pipe, then an employer would be liable for an injury occasioned to one of his employees from such defects. Koehler v. New York Steam Co., 183N. Y. 1,75N. E.S38. 655. Where an employee was injured by the sudden starting of an engine, which might have been caused by the throttle valves being leaky, and it appeared that the de- fondants had not caused the in- spection of this part of the appli- ance, although the engine was somewhat old and had been over- hauled, it was held a question for the jury whether there was negli- gence on its part in not discovering it. Connors v. Durite Mfg. Co., 156 Mass. 163. Where a servant, in attempting to uncouple cars from the front of a switch engine, was compelled to steady himself by taking hold of some part of the engine, no grab iron or other appli- ance for such purpose being upon 538 Master and Servant. §241 temporary ladders, ^^® machinery in general,^" molds/^8 pipe joints,"^ platforms,"" platform the engine, and he choose the letter plate which was and had been loose for twenty-four hours, and it gave way by which he was thrown upon the track, it was held the company owed him the duty of in- spection commensurate with the purpose for which it was used, and that a non-suit was improper with- out some evidence of inspection to overcome the presumption of neg- ligence. Dunn V. New York, N. H. & H. R. Co., 46 C. C. A. 546, 107 Fed. 666. Under the Illinois stat- ute, a mine operator is required to have an engine used in the work, inspected by the mine manager and where this duty was not observed and an engineer was kUled by a defect in the engine, the master was held responsible. Spring VaUey Coal Co. v. Greig, 226 111. 511, 80 N. E. 1042. 656. A mere temporary appli- ance, such as cleats nailed by work- men upon a beam for use as a lad- der, was held such an appliance as it was the duty of the master to inspect and supervise. Ralph v. American Bridge Co., 30 Wash. 500, 70 Pae. 1098. 657. The upper die of a machine used by a pressman fell causing hiTn injury. It had fallen on sev- eral occasions. Examination showed that the trouble was in cutting of the clutch pin. After the accident it was found the clutch pin was out. Such defect could only be ascertained by taking the ma- chine apart. There was testimony showing that the pin might be cut in a short time or it might take some time to cut it. It was held a question for the jury whether prop- er inspection would have prevented the injury. Burnside v. Novelty Mfg. Co., 121 Mich. 115, 79 N. W. 1108. The duty of inspection was charged upon the master where employees were moving a heavy machine, and the fly wheel, being loose, fell off, injuring one of them. Carroll v. Tide Water Oil Co., 67 N. J. L. 679, 52 Atl. 275' 658. Brooks v. Kinsley Iron & Mach. Co., 202 Mass. 228, 88 N. E. 771. 659. In an action for the death of an employee caused by inhaling ammonia gas blown out of a pipe joint claimed to have been packed with an improper gasket, evidence that other gaskets of the same material placed at the same time and subject to the same influence had been removed because of deterioration, was held admissible as showing a duty to inspect. Kaess v. Trivoli Brewing Co., 149 Mich. 371, 111 N. W. 106. 660. Ignorance by the master of defects in the instrumentalities used by his servants in performing his work is no defense to an action by a servant who has been injured by them, where by the exercise of proper care the master could have discovered and remedied the de- fects. This was said where the injury was caused by the breaking of a defective board in a platform which such employee had no oppor- tunity to inspect, and where the de- fect was open to discovery by the master by proper inspection. Ben- zing V. Steinway, 101 N. Y. 547, 5 N. E. 449. The master's duty is §241 Sapb Appliances. 539 scales/^^ ropes,' engine cabs/^^ ^ saws/^' set screws,'^* steps on telephone and telegraph poles,"* not fully perfoimied in furnislung an abundance of suitable material from whieli the servant is to make Belection to construct a temporary platform, when good and bad are mingled in a common mass. The duty is upon him to have the lum- ber inspected. Lafayette Bridge Co. V. Olsen, 47 C. C. A. 367, 108 Fed. 335, 54 L. R. A. 33. 661. An employee having been injured by the breaking of the plat- form scales upon which he had driven, there being testimony that the timbers supporting the scale were rotten, and testimony on the part of the employer that the timbers had been renewed within such time as experience had shown it to be necessary, the question of neghgence on the part of the em- ployer was for the jury. Mcln- tyre v. Detroit Safe Co., 129 Mich. 385, 89 N. W. 39. 662. The duty of inspection by the master was applied to a short piece of rope, attached to the regular rope operating a valve of a water tank, so attached that a short man could reach the regular rope. The rope appeared sound but was in fact rotten, and broke. What test should have been applied does not appear. International & G. N. R. Co. V. Elkins, 54 S. W. (Tex. Civ. App.) 931. 663. The cause of an injury to an employee was the kicking back of a piece of iTiniber which he was feeding into the saw. The cause of the lumber being thus thrown was not shown. It may have been from the saw wabbUng from its being improperly set on the arbor or the arbor improperly set in the boxes or the worn condition of the boxes. The only evidence as to any of these conditions was that relating to the wabbling of the saw. A verdict was upheld upon the ground that proper inspection would have ascertained the defect and negligence in not making it. McLean v. Paine, 181 Mass. 287, 63 N. E. 883. 664. A set screw holding a pul- ley to a shaft having become loose permitting the pulley to fall injur- ing a workman, which condition would have been discovered by proper inspection, the master was chargeable with negligence. EUis V. Thayer, 183 Mass. 309, 67 N. E. 325. 665. The duty of a railroad company to exercise ordinary care in the inspection and keeping in repair an engine for use by a fire- man, extends to a step between his seat and the deck of the cab, used to get up and down from the fire- man's seat. Fry v. Great Northern R. Co., 95 Minn. 87, 103 N. W. 733. See also Bookrum v. Galveston, H. & S. A. R. Co., 57 S. W. (Tex. Civ. App.) 919. 666. A telephone company must inspect its poles and lines to keep them in safe condition for its employees, and to keep its wires free from contact with electric wires charged with a deadly cur- rent. Combs V. Delaware & A. Tel. & Tel. Co., 218 Pa. St. 440, 67 Atl. 751. Where in erecting a tele- graph pole, it became necessary to use temporarily, for the purpose of removing an obstructing wire, a 540 Master and Servant. §241 telltales/'^ railroad tracks,'"' etc, telephone pole belonging to another company, an employee injm-ed in climbing by direction of one in charge of the work, by reason of its being defective, cannot be heard to claim that the master was negli- gent in failing to inspect such pole prior to its use. The risk was incidental to the service and was assumed by the employee. If he was unwiUiug to incur the risk he should have insisted on an inspection of the pole before climbing it. Dixon V. Western Union Tel. Co., 71 Fed. 143. Where it appeared a cross arm upon a pole was defective by reason of a large knot therein which was discoverable upon ordi- nary inspection and it broke at such place, this was sufficient to sustain a finding of the master's negligence. McDonald v. Postal Tel. Co., 22 R. I. 131, 46 Atl. 407. A telephone company, using by permission the poles of another company as part of its permanent plant, owes the same duty of in- spection of such poles as it owes in respect to its own. McGuire v. Ben Tel. Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437. It is a duty personal to the master to inspect telegraph poles which its linemen are required to climb in the course of their duty, to ascertain if they are in a sound and safe condition. Tracy v. Western Union Tel. Co., 110 Fed. 103 [afBrmed in 62 C. C. A. 168, 114 Fed. 282]. It was held a duty personal to the master to inspect its telegraph poles which had to be cUmbed by linemen, where from age or other causes defects might be antici- pated, before directing a lineman to go upon them. Cumberland Tel. & Tel. Co. V. Bills, 62 C. C. A. 620, 128 Fed. 272. Where a telephone company did not assume the duty of an independent inspection of poles before they were climbed by linemen, but that duty was im- posed upon the linemen them- selves before going on them, they assumed the risk of the condition of such poles as to soundness or lia- bility to break. Britton v. Central Union Tel. Co., 65 C. C. A. 598, 131 Fed. 844. 667. A railroad company was held liable to an employee who was injured by a bridge guard or tell- tale being out of order. It did not appear that the company had no- ticed that the rope had broken which held the device in position, nor that it had been broken for such length of time that notice would be presumed, but there was evidence sufficient to sustain a find- ing that the company had not used due care in an examination of the device as to its condition, where if such care had been exercised it would have led to a discovery of the defective condition of the rope. Warden v. Old Colony R. Co., 137 Mass. 204. 668. It was held a question for the jury whether the master's duty did not require an inspection of the track at the place where a train was derailed, caused by the act of train wreckers. Thompson v. Galves- ton, H. & S. A. R. Co., 48 Tex. Civ. App. 284, 106 S. W. 910. A raU- road company is not required to keep a constant watch on every part of its road, but only to inspect at reasonable intervals. This was §§ 242, 243 Safe Appliances. 541 § 242. Duty as dependent upon ownership of appliances. Whether the appliances are owned by the master or by a third person does not ordinarily affect the duty of the master in regard to their inspection. ^^' This question usually arises in connection with the use of foreign railroad cars which wiU be treated of subse- quently in this chapter.*™ § 243. Where appliances procured from reliable dealer or manufacturer. The master's duty in respect to appliances purchased from a reliable manufacturer or dealer has been somewhat considered in a previous chapter. The principal question involved ordinarily is whether his duty requires him to make an inspection of such articles or apphances, before putting them to use, and if so, what inspection or tests should be made. Under this head will be considered only the question whether inspection is required, considering said where an employee was injured by stepping upon a small spiral spring near the track, and independ- ent of the proposition that an in- spection might have discovered it. Williams v. St. Louis & S. F. R. Co., 119 Mo. 316, 24 S. W. 782. It was held a question for the jury whether there was negligence in not inspect- ing the condition of a railroad track from 5.30 P. M. to 11.30 P. M., the time of an accident from a large rock falling from the slope of the mountain on to the track. Denver & R. G. R. Co. v. Warring, 37 Colo. 122, 86 Pac. 305. 669. DeMaries v. Jameson, 98 Minn. 453, 108 N. W. 830; Mc- Guire v. BeU Tel. Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437; FroUeh v. Cranker, 21 Ohio Cir. Ct. R. 615, 11 O. C. D. 592; San Antonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320, 42 S. W. 1009. But see Huebner v. Hammond, 80 App. Div. 122, 80 N. Y. Supp. 295 [afarmed in 177 N. Y. 537, 69 N. E. 1124], where it was held not the duty of the master to inspect the deck of a lighter before allowing his employees to go aboard to perform a temporary duty thereon; Kirk V. Sturdy, 187 Mass. 87, 72 N. E. 349, lessee of rooms in building held not under duty to inspect paU attached to an overhead pipe by a plumber employed by the lessor; Bergin v. Southern New England Tel. Co., 70 Conn. 54, 38 Atl. 888, 39 L. R. A. 192, no duty to inspect guy wires and cir- cuit breakers where telephone com- pany (defendant) and electric rail- way company used same poles put in by railway company; Dixon v. Western Union Tel. Co., 71 Fed. 143. 670. See infra, §§ 267-278. 542 Master and Sebvant. § 243 the character and sufficiency of the inspection later. Many appliances, iacluding engines, cars, rails machin- ery, etc., are purchased by the employer, who as a rule has not equal means and facilities for testing or determin- ing their strength or ascertaining their defects, if any, with those who manufacture such appliances or specially deal in them. They are purchased from responsible dealers; oftentimes from the manufacturers themselves. What examination or inspection in such case, if any, de- volves upon the master? Must he or those who represent him in the purchase, critically examine and inspect all parts of such appUances and each raU or article so pur- chased or may be rely upon the repute of the makers or dealers and assume that they have furnished a reason- ably safe machine or appUance free from defects, where no defects are obvious upon mere inspection? It is stated by Judge Cooley in his work on Torts (page 557 — 1) that "The law does not require the master to guarantee the prudence, skill or fldehty of those from whom he obtains his tools or machinery, or the strength or fitness of the materials they make use of. If he employs such reasonable care and prudence in selecting or ordering what he requires in his business, such as every prudent man is expected to employ, providing himself with the conveniences of his occupation, this is aU that can be required of him." Such undoubtedly is the exercise of ordinary care within aU definitions and there is but httle excuse in its not being universally recognized and adopted. Doctrine as stated by Michigan court. Yet it appears that the Supreme Court of Michigan laid down what seems to be a more strict ride in respect to inspection in the first instance, but such rule, while stated in general terms, evidently had reference to the particular article in question, a brake chain. After stating in effect that if any defect exists which a careful test or inspection would have discovered, the master must be held to have knowledge of it, it was said: "They are not absolved from the duty of testing or inspection because they have bought in the open market 24:3 Sapb Appliances. 543 of reputable dealers or have employed, competent workmen to construct them. It not only can, but its duty requires that it shall, before it is placed on a car, cause every link of every chain used by its employees in places or under circumstances involving danger, in case the chain should break, to be carefully tested and inspected by some one competent to judge of its fitness for the utmost strain that is Ukely to come upon it.""^ The same court had previously declared what would seem to be the true rule and in accordance with the declar- ation of Judge Cooley, supra. After stating with reference to the general duties of railroad companies: "If they exercise their functions in the same way with prudent rail- way companies generally, and furnish their road and run it in the customary manner, which is generally found and believed to be safe and prudent, they do all that is incum- bent upon them." "This general doctrine the court below laid down very clearly but quaUfled it so as to make them absolutely responsible for the omissions, lack of skill or attention of the manufacturers from whom they made their purchases of stock, however high in standing and reputation as reliable persons. There is no principle in law which places such manufacturers iu the position of agents or servants of their customers. The law does not contem- plate that railroad companies will ia general make their own cars and engines, and they purchase them in the mar- ket of persons supposed to be competent dealers, just as they buy their other articles. All that they can reasonably be expected to do is to purchase such cars and other nec- essaries as they have reason to beUeve will be safe and proper, giving them such inspection as it is usual and practicable as they buy them. When they make such an examiaation and discover no defects they do aU that is practicable, and it is no neglect to omit attempting what is impracticable. They have a right to assimie that a dealer of good repute has also used such care as was incum- bent upon him, and that the articles purchased of him, 671. Morton v. Detroit, B. C. W. 111. But see Dompier v. Lewis & A. R. Co., 81 Mich. 423, 46 N. 131 Mich. 144, 91 N. W. 152. 544 Masteb aotj Seevant. § 243 which seem right, are so in fact. Any other rule "would make them liable for what is not negligence, and put them practically on the footing of insurers.""^ Doctrine as stated by New York court. In the case of De Graff v. Railway Co., 76 N. Y. 125, where the article under consideration was a brake chain, it was distinctly held that the master was under no obli- gation to test its strength before putting it in use. Later, in the same state, the court with much force and reason lay down the rule, having special reference to an implement manufactured by the employees from material furnished. It is that "a master who puts a tool or implement into his servant's hands may procure it in several ways. He may buy it ready made of a dealer, procure it to be manufac- tured, or pxu-chase the materials and manufactiu*e it him- self. Liability for an injury resulting from a defect in the materials of a tool will be determined in each case by the same rule. If a hook, like the one in the present case, had been procured ready made in the open market or man- ufactured at a foundry, the defendant necessarily woidd have been compelled to rely upon the dealer and manu- factTirer for the quality of the materials used. A completed hook ready for use could neither be cut in two with a chisel or bent over an anvil without impairing its strength or perhaps destroying it altogether. To apply such a test therefore to tools procured in that way is impracticable, and such articles are not usually tested before they are put in use. The modern industrial system rests upon con- fidence in others. A railroad corporation cannot well ap- ply such tests to the materials of which its cars and engines are made or to the rails which form its tracks. Reasonable inspection is necessary and required. But when articles are manufactured by a process approved by use and experience, and apparently properly finished and stamped, it is not usual for them to be tested again in 672. Grand Rapids & I. M. R. Co. V. Huntley, 38 Mioh. 537, 31 Am. Rep. 321. § 243 Safe Appliances. 545 quality; and such examinations are not generally required by law. If materials of tlie best quality are pureliased and tools constructed from them by competent and skillful workmen, and if there is nothing in the appear- ance of the material to indicate inefficiency, men in the ordinary affairs of life use them and place them in the hands of their servants; and there were no circumstances siirrounding the manufacture of the hook in question to induce a prudent man to depart from the usual course, or to adopt extraordinary care and caution.""' Doctrine as stated by United States Supreme Court. The duty of the master in respect to testing machinery purchased from a reputable dealer, was stated as follows: "It is not necessarily the duty of a purchaser of machinery, whether simple or complicated, to tear it to pieces to see if there be some latent defect. If he pvirchases from a manufacturer of recognized standing, he is justified in assuming that in the manufacture, proper care was taken and proper tests were made of the different parts of the machinery, and that as deUvered to him, it is in a fair and reasonable condition for use. We do not mean to say that it is never the duty of the purchaser to make tests or examination of his own, or that he can always rely upon the assumption that the manufacturer has fully and suffi- ciently tested. It may be and doubtless often is, his duty when placing the machine in actual use, to subject it to ordinary tests for determining its strength and effi- ciency.""* Doctrine as stated by Federal Court of Appeals. It was said that if a raOroad company purchase a loco- motive from a firm of builders of recognized high standing and responsibility, its duty to those employed about 673. Carlson v. Phoenix Bridge 728, 13 Sup. Ct. Rep. 837. A Co., 132 N. Y. 273, 30 N. E. 750. defect in an iron casting which See also Illinois Cent. R. Co. v. seems to have been revealed by Phillips, 49 111. 234. an explosion, was under considera- 674. Richmond & D. R. Co. v. tion. EUiott, 149 U. S. 266, 37 L. Ed. 1 M. & S.— 35 546 Masteb and Sebvant. § 243 such locomotive will be to see, by the use of ordinary tests for deterirdmng its strength and sufficiency, that it is reasonably safe and suited to the uses for which it was purchased; and such company is not obhged to dismantle compUcated machinery for the purpose of inspection, nor to keep on hand such mechanical contrivances, nor to employ such expert labor, as are required for highest tests."* Articles bought from reputable dealers need not, as a general rule, be actually tested.*''^ In Wisconsin. The following rule or doctrine was declared by the court: "Where a master buys of reputable dealers, a standai'd make of material to be used by a servant in the course of an emplojonent that renders it more hkely that he will seasonably discover defects therein than the master by any reasonable inspection could make, then no duty de- volves upon the master to inspect such material before turning it over to the servant for use. This is on the familiar principle that there is no duty to inspect where the servant is in. as good a position to seasonably dis- cover defects as is the master.""' In Massachusetts. Where apphances are bought from a reputable dealer or manufacturer, no inspection is ordinarily necessary before dehvering them to employees for use."* A master is not required to inspect tools and materials placed in the hands of a servant for use, if from their nature and construction they are harmless or if they are so comphcated that an ordinary purchaser is not expected to examine them, but is justified in relying on a respect- able dealer from whom they are purchased; the question 675. Clyde v. Richmond & 677. Gibson v. Milwaukee, L. D. R. Co., 65 Fed. 482. & H. & T. Co., 144 Wis. 140, 128 676. Westinghouse Electric & N. W. 877. Mfg. Co. V. Heimlicli, 62 C. C. A. 678. Shea v. Wellington, 163 92, 127 Fed. 92. Mass. 364, 40 N. E. 173. § 244 Safe Appliances. 547 whether an inspection is required and how careful, being dependent upon the circumstances of the case. This was said with reference to a second-hand barrel purchased, which had previously contained a composition of naphtha, which was refilled with hot tar, resulting in an explosion and injury to a workman. The question of the negligence of the master was held to be for the jury."' "Where there are no visible defects. If an employer purchases articles required for use, such as eye bolts, from a reputable manufacturer, and one thereof has no visible defects and is selected and put in use by a fellow-servant of one injured by its parting, caused by improper welding, the master wiU not be lia- ble, "s" And a street car company fulfills its duty in respect to furnishing proper and safe appliances so far as the con- troller of an electric car is concerned, if it is shown it has been of standard character, made by a reputable manufac- turer in good condition and subjected to aU reasonable inspection. **i Where superficial examination would discover defect. The rule that an employer buying from a reputable maker a completed apphance, recognized as suitable, is not Liable to an employee for injuries due to latent defects, does not apply where on a superficial examination the weakness of the appliances was discoverable.**^ § 244. Where appliance constructed by master. Where the appliance is manufactured or constructed by the fellow-servants of the injured employee, it is gener- 679. Delaney v. Framingham R. Co., 105 Minn. 504, 117 N. W. Gas, Fuel & Power Co., 202 Mass. 928, 20 L. R. A. (N. S.) 401. 359, 88 N. E. 773. 682. Feeney v. York Mfg. Co., 680. Doyle v. White, 35 N. Y. 189 Mass. 336, 75 N. E. 733; Bono, Supp. 760, 14 Misc. 417. van v. York Mfg. Co., 189 Mass. 681. Jenkins v. St. Paul City 336, 75 N. E. 733. 548 Master and Sekvant. §§ 245, 246 ally not the duty of the master to inspect it before putting it in use.*^' § 245. Duty as a continuing one. Suitable appliances and machinery having been fur- nished, the duty arises to see, by proper inspection, that they are kept in a safe condition.*^* The duty of inspection is a continuing one, and due care is not shown merely because the defective appliances had been in daily use for a long time and had been safe and efficient. ^'^ § 246. Defects from age and long use. Ordinary care requires that a master should take notice of the liability of parts of machinery to wear out by use and make provision for such contingencies. But whether it is a personal duty on his part to make examination and repair or whether such duty may be delegated, depends upon the character of the appliance and its use. If the condition is merely incidental, caused by ordinary use and wear, and it does not require skill and experience to remedy, or the appliance is simple in character, the duty of inspection and repair may be intrusted to servants, the master furnishing the proper material or means. ^^^ It has been held, however, that it was a question for the jury whether the master should not have subjected certain bolts of a crane to examination or replaced them by new ones, where they had been in use for a number of years, and subject to more or less shock and crystalliza- tion.^" 683. Carlson v. Phoenix Bridge 684. Brann v. Chicago, R. I. Co., 132 N. Y. 273, 30 N. E. 750. & P. R. Co., 53 Iowa, 696, 6 N. W. Where the master having delegated 5, 36 Am. Rep. 243. the task of assembliBig materials for 685. Houston v. Brush, 66 Vt. the construction of molding flasks 331, 29 Atl. 380. to employees, he owed no duty to 686. Indiana Car Co. v. Par- his employees to inspect the flasks ker, 100 Ind. 181. before they were used. Leishman v. 687. Harris v. Putnam Maeh. Union Iron Works, 148 Cal. 274, Co., 188 Mass. 85, 74 N. E. 287. 83 Pao. 30, 3 L. R. A. (N. S.) 500, 113 Am. St. Rep. 243. § 246 Safe Appliances. 549 And that a railroad company by proper inspection ought to have discovered that the stringers of certain cars ■were defective in being somewhat decayed ;^^* that a car wheel was defective from hard usage ;^*^ and that a derrick, a frail structure, was not suitable where it had been ex- posed to the elements for four years. ^'^ The evidence was sufficient to sustain a verdict in favor of an employee injured by the breaking of defective pole, on the ground that proper inspection would have disclosed the defect, the same not having been inspected for two years immediately preceding the accident.*" Elevators. It requires no argument or precedent to convince the mind that elevator cables, whether of rope or wire, require frequent inspection, where in constant use. The amount of strain and wear, from long and continued use, necessarily produces weakness and deterioration. An elevator so supported is an instrumentality inherently dangerous. The master should anticipate the effect of nattiral laws and guard against accidents that may result.*'^ 688. Parsons v. Missouri Pae. properly inspected six months prior R. Co., 94 Mo. 286, 6 S. W. 464. to the time il broke from concealed 689. Byrne v. Eastmans Co., rot, not discoverable by ordinary 163 N. Y. 461, 67 N. E. 738. inspection, the evidence failing to 690. OueUette v. Michigan Al- disclose the nature of the wood used kaU Co., 129 Mich. 484, 89 N. W. in its construction, nor how long it 436. The only evidence of neglect might be expected to resist decay, was the fact that the cross piece held that no negligence was shown broke. There was no evidence from a failure to further inspect. that the time it had been in use re- Nichols v. Pere Marquette R. Co., quired inspection. It does not 145 Mich. 643, 108 N. W. 1016. seem that the case is distinguish- 691. Essex County Electric Co. able from Quiney Mining Co. v. v. Kelly, 60 N. J. L. 306, 37 Atl. Kitts, 42 Mich. 34, 3 N. W. 240, 619. where a contrary conclusion was 692. Hackett v. Middlesex Mfg. held. The same court, where it Co., 101 Mass. 101; Wilson v. Es- appeared that a long ladder at- canaba Woodenware Co., 152 Mich, taehed to a water tank had been 540, 116 N. W. 198. in use twelve years, that it was 550 Mastee and Seevant. § 247 The same may be said with respect to safety dogs be- neath the car, with the addition that they are Ukely to become inoperative from rust or other causes.*'' Engines. Engines and other appliances used in operating a rail- road are Uable to wear out, to break, to become defective and dangerous, and a railroad company employing such agencies is charged with notice of this fact and consequently is bound to exercise a degree of watchfulness over them, commensurate with the nature of the business in which they are employed, and the consequences incident to neglect. Therefore if a company fails to make frequent examinations of its appliances, or fails to take other precautions necessary to prevent their becoming so defective and dangerous from natural causes, and if from such defects, which might have been known by the use of ordinary care, injury happens, such omissions would be regarded as negligence. Hence, where it appeared that an employee's injuries were occasioned by an engine mov- ing while he was working under it, caused by a leaky throttle valve, it was held the company was negligent in not discovering the defect and repairing it.*'* § 247. Inspection incidental to use of appliance. Perhaps as correct a statement of the doctrine as any is that where the repair of appliances requires skill and prac- tical knowledge, the obligation is that of the master, but when the inspection and repair is incidental to the use of the apphance, such inspection and repair is that of the servant.*" It has also been held that it is not the duty of an em- ployer to inspect the daily adjustment of machinery.*'* Nor does his duty extend to the cleaning and oiUng thereof, which are mere details of the work, but is confined 693. Byrne v. MarshaU Field Co., 71 N. H. 294, 52 Atl. 645, 58 & Co., 237 111. 384, 86 N. B. 748. L. R. A. 462, 93 Am. St. Rep. 522. 694. Atchison, T. & S. F. R. 696. South Baltimore Car Co. V. Holt, 29 Kan. 149. Works v. Schaefer, 96 Md. 88, 695. McLaine v. Head & Dowst 53 Atl. 665, 94 Am. St. Rep. 560. § 248 Sape Appliances. 551 to the condition of the machinery with reference to defects and repairs.^" Doctrine not strictly followed. It was said it was the duty of the proprietor of a mill to inspect as fully and carefully as an ordinarily careful and prudent mill owner and employer of labor would do under similar circumstances, the machinery and appliances under his control, to use all reasonable precautions to anticipate and provide for the wear and tear of belts and pulleys, to test them at reasonable intervals, and to ascertain whether they are running true or not, to observe whether cross belts are properly crossed and properly joined together for strength and correct running, and in the case of pulleys, fast or loose, to observe they are in good order and fit to be reUed upon to perform their work properly, and without unnecessary danger to serv- ants.*^* § 248. Duty includes premises. The rule making it the duty of a master to inspect his appliances to ascertain their condition as to defects, applies also to the place furnished for the doing of his work. This rule was applied where contractors were engaged in excavating materials for railroad ballast from a large bank composed of ashes and cinders in which were solid lumps of lime paste, one method being to imdermine the mass and thus cause it to fall, and an employee was injured who was directed to work in a dark place dimly lighted by a distant lamp, by the fall of a mass of material which had been left by the day gang some days before while at work under such mass of projecting material. It was said it was the master's duty to inspect the progress of the work and to give warning to workmen when danger from such source was discovered.*'* 697. Quigley v. Levering, 167 698. Petrarca v. Quidnick Mfg. N. Y. 58, 60 N. E. 276, 54 L. R. A. Co., 27 R. I. 265, 61 Atl. 648. 62. 699. Simons v. Kirk, 173 N. Y. 7, 65 N. E. 739. 552 Mastee and Servant. § 249 § 249. Inspection of quarry for unexploded blasts. Where an employee was injured by an unexploded blast in a quarry, it was held a question for the jury whether the master did not owe a duty of inspection to dis- cover such in order to keep the place safe and also whether he should not have promulgated proper rules.'"" Where the master, having attempted to explode three holes drilled in rocks and filled with dynamite, faUed to investigate, contrary to the unvarying custom, whether aU the charges had exploded, and it appeared that one had missed fire, and several days after other servants in attempting to drill that hole which they found not deep enough, caused an explosion whi^ injured another employee, the verdict, based on defendant's neghgence, was sustained.™^ It was not negligence chargeable to the employer ia failing to examine a stone after it was delivered from the quarry, for unexploded blasts. Such inspection usually being made at the quarry, and failure of the quarrymen to so inspect is not chargeable to the master, where it did not appear he knew of such failure, and he purchased the stone of the quarryman.''"^ Where an employee while dressing stone was injured by the explosion of a dynamite cartridge which had failed to explode at the time of quarrying, and it appeared that occasionally such a condition existed, it was held a proper question for the jury to determine whether the employer, from the knowledge he possessed, ought to have examined the stone which he provided his employees to dress, to ascertain whether it contained unexploded cartridges.'"^ It was held that it was a duty personal to the master for the superintendent to apply the usual test of tapping 700. Lanza v. Le Grand Quarry 702. Mooney v. Beattie, 180 Co., 124 Iowa, 659, 100 N. W. 488. Mass. 451, 62 N. B. 725, 70 L. R. A. 701. Bjorklund v. Gray, 106 831. Minn. 42, 118 N. W. 59. 703. Neveu v. Sears, 155 Mass. 303, 29 N. E. 472. § 250 Safe Appliances. 553 to ascertain if there was shell or loose rock at the place in the quarry where he caused a "jogging" blast to be made."* § 250. Inspection of mines and appliances therein. It is the duty of a mine owner to frequently inspect the timbers, walls, and roof of the mine.'"^ And in several of the states statutes have been enacted requiring an examination each morning before miners are permitted to enter, ™^ or every alternate day,™' or making other provision in regard thereto.™* Independent of statute, it was held to be the duty of a mine operator to have a competent person to inspect the entry of a mine in which his servants are at work.™' Following a blast in a mine, large quantities of ore were thrown upon a platform or scaffold used in a place in the mine. This was not an infrequent occurrence. It was said that it was a duty on the part of the officers of the company working the naine to cause an inspection and examination to be made of such scaffold and the timbers supporting it, after blasts, to see whether they had become damaged or weakened. ''^'' Where an employee was injured by the fall of slate from the roof of the mine, there being no allegation of failure to inspect on the part of the master, it was proper to show that from custom or usage it was the duty of the employer to inspect the mine, and knowledge on his part of such usage would be presumed if it existed. ''^^ 704. Rockport Granite Co. v. Tenn. 346, 71 S. W. 80; Schmal- Bjornholm, 53 C. C. A. 429, 115 stieg v. Leavenwortli Coal Co., 65 Fed. 949. Kan. 753, 70 Pae. 888, 59 L. R. A. 705. Western Coal & Mining 707. See also supra, § 105. Co. V. Ingraham, 17 C. C. A. 71, 709. Ashland Coal & Iron R. 70 Fed. 219. Co. v. Wallace, 19 Ky. L. Rep. 706. Athens Min. Co. v. Carn- 849, 42 S. W. 744, 43 S. W. 207. duff, 221 111. 354, 77 N. E. 571. 710. Eddy v. Aurora Iron Min. 707. J. Wooley Coal Co. v. Co., 81 Mich. 548, 46 N. W. 17. Bracken, 30 Ind. App. 624, 66 N. E. 711. Thayer v. Smoky HoUow 775. Coal Co., 121 Iowa, 121, 96 N. W. 708. See Heald v. Wallace, 109 718. 554 Master and Servant. § 251 Where a foreman in a mine specially agrees to inspect the roof of a mine, a servant is not gidlty of negligence in not observing whether that duty has been performed. The question of fellow-servant is not involved."^ Where the walls in a mine had become so thin that a blast discharged caused it to blow through,wliich defect might have been discovered by proper inspection on the part of the mine boss, such inspection being required every alternate day by force of a statute, a servant injured was permitted to recover."' § 251. Inspection of "common tools." The duty of inspection by the master of appliances does not extend to the smaU and common tools in every day use, of the fitness of which the employees using them may reasonably be supposed to be competent to judge. '^^ This exception to the rule has been applied to a lantern globe,"^ ordinary ladder,'" but not a forty-foot extension ladder."' So a chain of exceptional size and strength has been held not a common tool within this exception.'^* The exception applies to hammers, saws, spades, hoes, lanterns and the like, which are so simple in construction as to be weU understood by men of ordinary intelligence or where they are of such a character that a man of ordi- nary prudence would not under the same circumstances 712. Westville Coal Co. v. N. Y. Supp. 285. See also supra- Schwartz, 177 lU. 272, 52 N. E. § 161. 276. 715. Gulf, C. & S. F. R. Co. v. 713. Eureka Block Coal Co. v. Larkin, 98 Tex. 225, 82 S. W. 1026, WeUs, 29 Ind. App. 1, 61 N. E. 1 L. R. A. (N. S.) 944. 236. 716. Dessecker v. Phoenix Mill 714. Golden V. ElHs, 104 Me. Co., 98 Minn. 439, 108 N. W. 177, 71 Atl. 649 (steel striking 516. See also supra, § 161. hammer); Kinney v. Corbin, 132 717. Twombly v. Consolidated Pa.St.341, 19Atl. 141;Wachsmuth Electric Light Co., 98 Me. 353, V. Shaw Electric Crane Co., 118 57 Atl. 85, 64 L. R. A. 551. Mich. 275, 76 N. W. 497; Miller v. 718. Finnerty v. Burnham, 205 Erie R. Co., 21 App. Div. 45, 47 Pa. St. 305, 54 Atl. 996. See also supra, § 161. §§ 252, 253 Safe Appliances. 555 inspect them as a precaution against injury to his serv- ants."^ A master who purchases from a hardware dealer a common sledge, in good condition when delivered to his employee, is not required to inspect the same, the rule stated being "the master is under no duty to inspect simple or common tools or to discover or remedy defects arising necessarily from the ordinary use of such instruments. ^2° Where a hammer, the property of a servant, was pur- chased from a reputable dealer, the master did not owe a fellow-servant the duty of inspecting. ^^^ § 252, Inspection after unusual occurrence. Particularly is there a duty to inspect after an unusual occurrence which would put an ordinarily prudent man on guard as to the safety of an appliance involved in such occurrence."^ Where there is an unusual occurrence, causing patent injuries to appUances, it is the duty of the employer to make a reasonable examination thereof to see if there are any latent injuries. ''^^ § 253. Statutory inspection. Where an inspection is required by statute, and there has been no inspection, the master is liable where the injury results from a defect in the machine required to be inspected."* 719. Longpre v. Big Blackfoot em R. Co., 85 Minn. 272, 88 N. W. Milling Co., 38 Mont. 99, 99 Pac. 758 (crowbar wMcli tad been in 131. fire La building). 720. Kosehman v. Ash, 98 723. Solomon R. Co. v. Jones, Minn. 312, 108 N. W. 514, 116 30 Kan. 601, 2 Pac. 657. See also Am. St. Rep. 373. Norfolk & W. R. Co. v. Nunnally's 721. Dompier v. Le-wis, 131 Adm'r, 88 Va. 546, 14 S. E. 367. Mich. 144, 91 N. W. 152, a helper 724. Spring VaUey Coal Co. seventeen years old was injured by v. Greig, 226 111. 511, 80 N. E. 1042 a chip from the hammer coming (engine connected with mine), in contact with his eye. See also See also Eureka Block Coal Co. v. supra, § 161. WeUs, 29 Ind. App. 1, 61 N. E. 722. See MiUer v. Great North- 236. 556 Masteb and Seevant. ^ li54 On tlie other hand, if there has been a recent inspection by an official inspector, as required by a statute or ordi- nance, and he has found no defects therein, the master is generally not Uable for failure to inspect.''" An employer, having no knowledge fitting him to inspect a boiler, may rely upon the certificate of the official inspector."^ Where an employer employed an engineer licensed under municipal authority, as reqviired by ordinance, who was present during the installation of a steam boiler and inspected the same during its installation and assisted the public inspector at the original and successive inspec- tions, it was held he was not hable for the death of such engineer caused by the bursting of the mud pipe elbow of the boiler, owing either to an original defect or to corro- sion, either of which would have been disclosed by a proper inspection. That negligence on the part of the employer did not appear.''^' In some states, statutes have been enacted providing for the erection of guards around machinery or elevators after notice from the official inspector."* § 254. Improbable occurrences. If the occmrence by which a servant is injured was be- yond the reasonably probable consequences of the ordi- nary occurrences that reasonably prudent men would under the circumstances have foreseen, the master is not Hable because of his omission to make an inspection which extraordinary prudence alone would have dictated. This rule was applied in respect to a hanging wire by which a current of 110 volts was fed to an electric light 725. Vincent v. Clements, 150 v. Clements, 150 Mich. 406, 114 Mich. 406, 114 N. W. 330; Service N. W. 330. V. Shoneman, 196 Pa. St. 63, 46 727. Vincent v. Clements, 150 Atl. 292, 69 L. R. A. 792, 79 Am. St. Mich. 406, 114 N. W. 330. Rep. 689. 728. See Foley v. Pettee Mach. 726. Service V. Shoneman, 196 Works, 149 Mass. 294, 21 N. E. 304, Pa. St. 63, 46 Atl. 292, 69 L. R. A. 4 L. R. A. 51; Boehm v. Mace, 28 792, 79 Am. St. Rep. 689; Vincent Abb. N. Cas. 138, 18 N. Y. Supp. 106. § 255 Sapb Appliances. 557 bulb, a servant being injured by a shock while working at a machine, the wind having forced the wire in contact with a pipe by which the insulation was worn, the ciirrent passing to the pipe and thence to the machine.'^' But where an asphalt tank exploded, it was held that the mere fact that such an accident was of unfrequent oc- eiurence did not of itseK exonerate the master; and that a jury might find from the compounding of the materials used, the master might, with ordinary prudence, have known that dangerous gases were liable to generate and that due care required precautions to prevent the accum- ulation of gases in dangerous quantities. ''''' Where, however, a bridge on defendant's road fell by reason of imperfect construction of an abutment, not apparent upon ordinary observation, and it appeared the other abutment had developed defects of a similar char- acter, and it was partially taken down and rebuilt, and it fvu-ther appeared that the road, of which the bridge was a part, was built by defendant's predecessors, it was said that discovery of defects in one abutment would naturally lead a prudent man to doubt the safety of the other, and would impel him to make some effort to ascertain the trouble, beyond merely looking at the structure. Hence it was a question for the jury whether the defendant had performed its duty.'" § 255. Temporary conditions. There are limits to the duty of employers to provide for the safety of their workmen, limits set by what is prac- 729. Fulton v. Grieb Rubber but a few montlis and the employer Co., 75 N. J. L. 525, 68 Atl. 116; was not bound to anticipate the Fulton V. Grieb Rubber Co., 72 probability of injury to any one. N. J. L. 35, 60 Atl. 37. No duty Fulton v. Grieb Rubber Co., 69 rested upon the master to inspect N. J. L. 221, 54 Atl. 561. an incandescent lamp wire from 730. Dulligan v. Barber Asphalt which the insulation had been worn Pav. Co., 201 Mass. 227, 87 N. E. away from a small section, the wire 567. when blown by force of the wind 731. Bogart v. Delaware, L. against a steam pipe caused a & W. R. Co., 145 N. T. 283, 40 shock to an employee handling it. N. E. 17. Such system had been installed 558 Masteb and SBEVAiTT. §§ 255a-256 tioable in a eormnercial sense, and limits set by what naturally is to be expected under the circumstances. The chief sphere of duty is ia the permanent or recurring con- ditions of the machinery or the place where the workman is employed, where the danger is not obvious or neces- sarily incident to the business. But there are momentary dangers which, though hidden, it is impracticable to guard against by inspection. There are others which are both transitory and obvious or equally easy to be discovered by employer and employee. Thus where an employee who had been sent into an engine room immediately after the explosion of a fly wheel, to clean out the rubbish, was injured by the falling of a piece of iron, the master was not chargeable with negligence.'^^ § 255a. Appliances employees have no right to interfere with. An employer owes no duty of inspection of that which he has no reason to believe any of his employees will in- terfere with and with which they have no right to inter- fere.^^' § 255b. System of inspection. It is stated by the Massachusetts court that in mills and factories there should be provided a system of in- spection, and if this is wanting and thereby an employee is injured, it is evidence of negligence.^'* And in Maryland, a system of inspecting street cars was held necessary. '^'^ § 256. Rules requiring servants to inspect. The duty of inspection is sometimes placed, by rule of the employer, on the employee injm-ed. The validity and effect of such rules will be considered in another chapter.^'® 732. Kanz v. Page, 168 Mass. Cartridge Co., 159 Mass. 313, 217, 46 N. E. 620. 34 N. E. 461. 733. Schwondt v. William 735. Crawford v. United Rys. Wright Co., 126 Mioh. 609, 85 N. & Elec. Co., 101 Md. 402, 61 Atl. W. 1107. 287, 70 L. R. A. 489. 734. Chambers v. Wampanoag 736. See chapter on Rules, MiUs, 189 Mass. 529, 75 N. B. §§324,330. 1093, citing Toy v. United States §§ 257, 258 Safe Appliances. 559 It may be stated, however, that an employer cannot evade Ms duty to inspect by simply giving general orders that servants shall examine for themselves, before using, the place, materials, etc., furnished by the employer.'^^ § 257. Effect of custom. Evidence as to custom as to inspection, whether by master or servant, is admissible.''* § 258. Duty as delegable. As already stated, the master's duty is the exercise of reasonable or ordinary care in furnishing and maintain- ing his apphanoes and ways or premises in a reasonably safe condition. To meet this requirement involves certain specified duties, among which are those of supervision and inspection, to ascertain and determine their" condition. An important question arises as to whether this duty is one that is personal to the master, or one that may be properly delegated so as to relieve him from responsibility for the manner of its performance. It is quite generally held that the duty of inspecting appliances and premises, where required, is personal to the master, and hence cannot be delegated to an agent or servant.''^ Thus, the duty to inspect cars is not fulfilled by the appointment of competent car inspectors but the em- ployer is Uable for the neghgenee of the inspectors.'^" 737. Bookrum v. Galveston, Cavanaugh v. Windsor Cut Stone H. & S. A. R. Co., 57 S. W. (Tex. Corp., 80 Conn. 585, 89 Atl. 345; Civ. App.) 919. Rineicotti v. John O'Brien Con- 738. Thayer v. Smoky HoUow tracting Co., 77 Conn. 617, 60 Atl Coal Co., 121 Iowa, 121, 96 N. W. 115, 69 L. R. A. 936; Bowen v. 718. Chicago, B. & K. C. R. Co., 95 739. BaUey v. Rome, W. & Mo. 268, 8 S. W. 230; Missouri, O. R. Co., 139 N. Y. 302, 34 N. E. K. & T. R. Co. v. Hagan, 42 Tex. 918;Cooperv.P. C.&St. L.R. Co., Civ. App. 133, 93 S. W. 1014; 24 W. Va. 37; Koehler v. New Wedgewood v. Chicago & N. W. R. York Steam Co., 183 N. Y. 1, Co., 44 Wis. 44. 75 N. E. 538; Norfolk & W. R. Co. 740. Little Rock & M. R. Co. V. Phillips' Adm'x, 100 Va. 362, 41 v. Moseley, 6 C. C. A. 225, 56 Fed. S. E. 726; Jacobson v. Johnson, 1009; Durkin v. Sharp, 88 N. Y. 87 Minn. 185, 91 N. W. 465; 225. See also Missouri Pae. R. Cq 560 Master and Sebvant. ^ 258 In other words, negligence of a car or track inspector in failing to discover a defect which he should have discovered by the exercise of due care is imputable to the railroad com- pany.''" Rule not universal. It is not the rule in aU jurisdictions that such duty is so far personal that it can not be properly delegated. In Pennsylvania, the doctrine first declared was stated to be that it is the duty of railroad companies to exercise or- dinary care in the maintenance of the machinery and tools which they put into the hands of their employees, and to institute proper and reasonable regulations for the safety of their employees in this respect; but this rule must be taken in a practical sense. If, however, the company employ competent and skilful persons for the purpose of inspection and afford them reasonable opportunities and facilities for the work, under proper instructions, the company ordinarily will not be Uable for the negligent performance of the work by their employees to a fellow- servant, unless the company knew, or by ordinary dili- gence ought to have known, of the defective manner in which the inspection was conducted. It is the duty of the company to provide suitable persons in sufficient num- bers at proper places with reasonable opportunities to accomplish the work.''*^ Yet in a subsequent case, it seems to be assumed as the law that a railroad company owes to its employees the duty of exercising reasonable care in regularly inspecting cars, brakes and other appliances used by the latter, so as to ascertain if such appliances remain in suitable and safe condition, and to remedy any defects that may be discovered. The facts were, to which this rule was appUed, that there was injmy to a brakeman using a V. McElyea, 71 Tex. 386, 9 S. W. 42 Tex. Civ. App. 133, 93 S. W. 313, 1 L. R. A. 411, 10 Am. St. 1014. Rep. 749. 742. PhUadelphia & R. R. Co. 741. lUinois Cent. R. Co. v. v. Hughes, 119 Pa. St. 301, 13 At!. Hilliard, 99 Ky. 684, 37 S. W. 75; 286. MissoTiri, K. & T. R. Co. v. Hagaii, § 258 Sape Appliances. 561 brake whicli was defective; that a thorough inspection would have discovered it. It was assumed that the company was negUgent either in not discovering it or peiToitting it to remain so.'^' In a subsequent case, however, it was said: "If a master employs competent servants for inspection and gives them reasonable facilities for the work, he wQl not be liable for the negligent performance of such labor to a fellow-servant, unless he knew the defective manner in which the inspection was conducted."'** Such is also the doctrine in other jurisdictions where the rule of fellow-servants does not depend upon the character of the act performed, but rather on the question of control and direction. Duty to inspect for purpose of keeping appliances in working order. A distinction has been made between an inspection for the purpose of determining the conditions as to safety of appliances, and an inspection for the purpose of keeping them in good working order. That as to the former such duty is imposed by law upon the master, and its delegation will not relieve him from responsibihty, but as to the latter, it may be delegated, and the master thus excused. Thus, failure to inspect an idle pulley oftener than once in three months, which burst, was held not to show negli- gence on the part of the master. The reasoning is that the bursting of the pulley could not reasonably be anticipated, hence nothing in the experience of mechanics indicated the duty of frequent inspection.''*^ This distinction does not seem to have been made else- where in express terms, but courts quite generally hold to the doctrine that the duty to make incidental repairs, such as is required from the daily use of a machine, may be del- 743. Philadelphia & R. R. Co. 744. Sage v. Baltimore & 0. V. Huber, 128 Pa. St. 63, 18 Atl. R. Co., 219 Pa. St. 129, 67 AtL 985. 334, 5 L. R. A. 439. See Newton v. 745. Clark v. Goldie, 146 Mich. Vulcan Iron Works, 199 Pa. St. 646, 303, 109 N. W. 1044. 49 Atl. 339. 1 M. & S. — 36 562 Master and Servant. § 259 egated, and hence it woiild seem to foUow that the duty of inspection in such cases is included. It would seem that the New Jersey court recognizes the distinction as ex- pressed by the Michigan court. Thus it was said that inspection and repair necessary to the support and maiutenanee of an overhead shafting in a factory, is not to be considered as merely incidental to the running of the engine, with which it was connected, but that such duty was personal to the master.'" The court intimated that were it otherwise the duty was one that could properly have been delegated. B. Stjfficienct. § 259. Ordinary care. Ordinary care is the test of proper inspection.''^' It is only required that such reasonable precautions to prevent accident be taken as would have been adopted by prudent persons prior to the accident.'" The test is the care ordinarily exercised by ordiuarily carefid persons.'*' The master's obligation to inspect is one not of insur- ance, but of diUgence. He is not bound to inspect more often or more minutely than would an ordinarily prudent person. His duty and responsibility alike depend upon the exercise of ordinary care which is the test. Whatever the master's duty may be as to the method to be used in ascertaining whether the machinery and appliances fur- nished to his servant are reasonably suitable and safe, due care requires him, especially in the care of dangerous appliances, either himself or by some other selected for 746. Hustis V. James A. Ban- W. R. Co., 106 Iowa, 63, 75 N. W. nister Co., 64 N. J. L. 279, 43 Atl. 665; Ultima Thule, A. & M. R. Co. 230. V. Calhoun, 83 Ark. 318, 103 S. W. 747. Smoot v. Mobile & M. R. 726. Co., 67Ala. 13;Gulf, C. &S. F. R. 749. Covington Sawmill & Mfg. Co. V. Johnson, 83 Tex. 628, 19 Co. v. Clark, 116 Ky. 461, 76 S. S. W. 151. W. 348. 748. StockweU v. Chicago & N. <^ 259 Safe Appliances. 563 that purpose, in either case by one competent and quali- fied, to inspect and look after the condition of such appli- ances, and see that they are kept in repair."" This duty, when the character of the business is such as to require it, is imperative, and must be continuously and positively performed.''" An employer having actual notice of a condition which should have led him to make a careful and searching investigation, will be charged with notice of every defect which an inspection would have revealed. ^^^ The law charges the master with knowledge of that which he ought to have known and he ought to know that which by the exercise of due and reasonable care he would have discovered."' His duty is to use the usual and ordinary tests, such as common prudence shows to be proper for defects which might occur with time and use. He is not required to re- sort to such tests and methods as are impracticable or unreasonable and oppressive, and which are only required to insure absolute safety.'^* It has been stated that as incident to the duty of maintaining apphances in a reasonably safe condition for use, especially as applied to the operation of cars, a most efficient and perhaps a necessary method of discharging this duty, is to maintain a careful system of inspection to 750. Northern Pae. R. Co. v. 44 Wis. 44; Bessex v. CMcago & Herbert, 116 U. S. 642, 29 L. Ed. N. W. R. Co., 45 Wis. 477. 755, 6 Sup. Ct. Rep. 590; Sack v. 754. De Graff v. RaUway Co., Dolese, 137 lU. 129, 27 N. E. 62. 76 N. Y. 125; Paeheco v. Judson 751. Brann v. Chicago, R. I. Mfg. Co., 113 Cal. 541, 45 Pae. 833; & P. R. Co., 53 Iowa, 595, 6 N. Louisville, N. A. & C. R. Co. v. W. 5, 36 Am. Rep. 243; Bessex Bates, 146 Ind. 564, 45 N. B. 108; V. Chicago & N. W. R. Co., 45 Flood v. Western Union Tel. Co., Wis. 477. 131 N. Y. 603, 30 N. E. 196; BeUe- 752. Libby, McNeiU & Libby V. viUe Stone Co. v. Comben, 62 Cook, 222 111. 206, 78 N. B. 599. N. J. L. 449, 45 Atl. 1090; Ran- 753. Wedgewood v. Chicago & dolph v. New York Cent. & H. R. N. W. R. Co., 41 Wis. 478; Wedge- R. Co., 69 N. J. L. 420, 55 Atl. 240; wood V. Chicago & N. W. R. Co., Smith v. Chicago, M. & St. P. R. Co., 42 Wis. 520. 564 Master and Servant, §260 see that appliances in use are in good order and sufficient to answer the purposes for which intended."^ A raih-oad company is not bound to adopt a system of inspection which would embarrass the operation of the road.^^*' In determining whether the duty of inspection has been fulfilled, the character of the business should be con- sidered.'" Other tests than a mere visual inspection are sometimes necessary, especially where there are suspicious circum- stances.'** Of course the sufficiency of the inspection is immaterial where the most careful inspection demanded by the law would not have discovered the defect.'^' § 260. Character and use as test. But it is evident that the character of the machinery or appliance, as well as their use, must enter largely into the determination of the question of what test and inspec- tion the master's duty requires him to make. More certain and vigorous methods, more constant and vigilant care, is required in inspecting and testing such appliances as by constant use are likely to become defective and out of repair, especially in dangerous employments, than machinery or appliances or structures and premises that are not obviously dangerous and, from their nature and construction, not likely to become defective and out of repair. Experience in hazardous employments, such as the operation of railroads, mills and factories, has devel- oped to a great degree the ability to determine where de- fects in appliances in use are ordinarily hkely to be found, what parts are most subjected to wear, as well as what parts are hable to become weak from strain, weight 755. Sack v. Dolese, 137 HI. 758. Gutridge v. Missouri Pao. 129, 27 N. E. 62. R. Co., 105 Mo. 520, 16 S. W. 943. 756. Smoot v. Mobile & M. R. 759. Louisville & N. R. Co. v. Co., 67 Ala. 13. CampbeU, 97 Ala. 147, 12 So. 574. 757. Dyas v. Southern Pac. Co., 140 Cal. 296, 73 Pac. 972. §§ 261, 262 Sate Appliances. 565 or other causes, and whenever danger ouglit to be appre- hended by prudent men of the requisite skUl and expe- rience, a constant and vigilant inspection and oversight should be made to discover defects that thus may be antici- pated. Of course some parts require more frequent and more rigid inspection and watchfulness than others, and different tests in character must be apphed to differ- ent parts. For instance, the wheels upon railroad cars require more frequent inspection and test than the frame work, and also different in character. Striking a wheel with a hammer conveys that information of their soimd- ness and safety, while an examination by observation, however minute, might not discover a defect if it existed. The failure therefore of the master, to inspect, is not itself proof of neghgence rendering him Uable to his servant, unless it appears from the nature of the business, the manner of use of the apphance and the character of the appliance itself, that the master in the exercise of ordinary care should have seen the necessity of such precaution of inspection.'*" § 261. Frequency of inspection. The sufficiency of the inspection depends not only on its thoroughness but its frequency. Reasonable care in re- spect to apphances requires inspection at reasonable intervals.'" No precise rule can be laid down as to how often an in- spection is necessary because of coiu"se the nature of the appliance and other circimistances will control. '^^ § 262. Tools required. In making an inspection it is not only the duty of the 760. Lafflin v. Buffalo & S. W. 761. Caven v. Bodwell Gran- R. Co., 106 N. Y. 136, 12 N. E. 599; ite Co., 99 Me. 278, 59 Atl. 285. ISIorgan v. Hudson River O. & In Clark v. Goldie, 146 Mich. 303, I. Co., 133 N. Y. 666, 31 N. E. 234; 109 N. W. I'044, inspection of pul- Finnegan v. Sajnuel Winslow Skate ley once in three months was held Mfg. Co., 189 Mass.5 80, 76 N. E. sufficient. 192; Smith v. Chicago, M. & St. 762. See infra, this chapter P. R. Co., 42 Wis. 620. under head of "Illustrations." 566 Master and Servant. §§ 263-265 inspector to use the usual and ordinary tests, but also such tools as persons of ordinary prudence use, if any, under Like circumstances. ''''' § 263. Sufl5.ciency as determined by number of in- spectors. A railroad company must have its repair shops to maintain its tools, rolling stock, etc., in good repair, and it must have its inspectors, not only at its termini, where a general overhauling of property is had, but at conven- ient stations along its line, to detect such injuries as may have been received en route. '^^^ § 264. Effect of custom. Generally such inspection as that usually exercised by other persons or companies using like appliances is suf- ficient, ^^^ but it is not conclusive on the question of due care.''^* The fact that an inspection was made in the customary way does not necessarily relieve the master of habiUty.'^^ § 265. Official inspection. It would seem that an employer may rely on the cer- tificate of an official inspector.''^* 763. LouisviUe, N. A. & C. 766. Atchison, T. & S. F. R. Co. R. Co. V. Bates, 146 Ind. 564, 45 v. Kingscott, 65 Kan. 131, 69 Pac. N. E. 108. 184; Rowley v. American lUumi- 764. St. Louis, I. M. & S. R. nating Co., 83 App. Div. 609, 81 Co. V. Rice, 51 Ark. 467, 11 S. W. N. Y. Supp. 1099; International 699, 4 L. R. A. 173. & G. N. R. Co. v. Hawes, 54 S. W. 765. Texas & P. R. Co. v. Bar- (Tex. Civ. App.) 325. rett, 166 U. S. 617, 41 L. Ed. 1136, 767. Missouri Pac. R. Co. v. 17 Sup. Ct. Rep. 707; Shandrew v. Dwyer, 36 Kans. 58, 12 Pao. 352. CMoago, St. P., M. & O. R. Co., 768. Service v. Shoneman, 196 73 C. C. A. 430, 142 Fed. 320; Pa. St. 63, 46 Atl. 292, 69 L. R. A. LouisviUe, N. A. & C. R. Co. v. 792, 79 Am. St. R. 689. But see Bates, 146 Ind. 564, 45 N. E. 108; Egan v. Dry Dock, E. B. & B. R. McCaU V. Pacific Mail S. S. Co., Co., 12 App. Div. 556, 42 N. Y. 123 Cal. 42, 55 Pac. 706. Supp. 188. §266 Safe Appliances. 567 § 266. Illustrations of what constitutes reasonable in- spection. Boilers. The question as to the sufficiency of an inspection arises, not unfrequently with respect to steam boilers. They are liable to receive internal defects which render them unsafe, not discoverable by ordinary surface in- spection and such defects can only be discovered by ap- plying other means or tests. Whether or not the in- spection and tests appUed were sufficient depends upon what ordinary prudence would suggest to one competent to make the test. The conditions and the particular facts enter largely into the determination. An explosion itself may reveal what might have been done to discover the defect, but such disclosure will not ordinarily have the effect to determine the question. If by apphcation of the ordinary and usual tests, a defect is not revealed or suggested, there is nothing to sustain a charge of neg- ligence.'^' 769. Where an engineer in charge of a boiler which exploded, three days prior discovered a small leak in a horizontal seam, which he reported to his employers, who thereupon employed a skilled boil- er repairer to do whatever was nec- essary, and he made a careful vis- ual examination and a hammer test, without discovering any signs of weakness, and then calked the same and stopped the leak, but did not make a pressure test, being told by the engineer, who was kiUed by the explosion, not to do so, the boiler exploding the next day un- der a pressure of between ninety and one hundred pounds, it was held in an action brought to recov- er for the death of such engineer, that the master was not liable. In- spection of the boiler after the ex- plosion showed an old crack in the underlying lap of steel, extending several feet horizontally between the rows of rivets which, however, did not extend through the whole thickness and could not have been discovered either by external or in- ternal inspection or by sound. The test as made was held sufficient. Kramer v. Willy, 109 Wis. 602, 85 N. W. 499. It was said by another court: The application of the steam test for boilers being shown to be neither practicable nor gen- erally approved on account of its dangers, and the hydraulic test, as shown by the evidence, being extra- ordinary and rarely used except when engines are first put in use or fail to work well, or when they are overhauled periodically, the failure of the railroad company to have either or both these tests ap- plied to the defective boiler, does 568 Masteb and Seevant. §266 Brakes and brake rods. It would seem that the master's duty of inspection requires not only an examination but the appUcation of tests to determine the condition of brake rods, and that such is fully performed by the use of all the tests used and adopted by railroad companies generally. The mere fact that one such rod broke, and it thus disclosed a latent defect, a crack or flaw in the iron, would not charge a want of proper care in making an inspection, unless it appeared that a proper inspection would have disclosed it. There should be in aU eases some evidence tending to show that the tests applied were inadequate and not in accordance with approved methods.'^™ And where the imperfect welding of a brake rod was not discoverable by the usual methods of inspection on not authorize the imputation, of negligence. Louisville & N. R. Co. V. Allen, 78 Ala. 494. It was said in reference to a locomotive boiler which exploded, that if the company omitted any test of sound- ness that ought to have been made, while in its shops for repairs, it was guilty of negligence. There was some evidence that the rivets shoidd have been sounded by a hammer, which if done would have disclosed that they had been par- tially out as a result of a former collision. St. Louis, I. M. & S. R. Co. V. Harper, 44 Ark. 624. Where the evidence showed that a boiler which exploded, though second- hand, had been purchased from a reputable dealer under a guaranty, that the dealer and defendant had it carefully inspected and it had thereafter been inspected every six months by a qualified person, as required by statute, and had been inspected about four months prior to the explosion, negligence could not be charged of use of the boiler while in a dangerous or de- fective condition. Cavanaugh v. Avoca Coal Co., 222 Pa. St. 150, 70 Atl. 997. Where an engineer was injured by the explosion of a boiler, and there was evidence to the effect that there were fifty oi sixty broken bolts, the ends of which were worn smooth; that the process of wearing them smooth takes considerable time; that a proper application of the hammer test will discover ninety per cent, of the broken bolts, and that such bolts generally break gradually, it was held that the court could not say as a matter of law, that an in- spection made by the application of the hammer test fourteen days prior to the accident, was not neg- ligently made. Woods v. Chica- go & G. T. R. Co., 108 Mich. 396, 66 S. W. 328. 770. Smith v. Chicago, M. & St. P. R. Co., 42 Wis. 520. § 266 Safe Appliances. 569 account of rust, the master was held not liable in the ab- sence of proof that defendant's method of inspection was not reasonable.''^^ The master's duty in respect to inspection and test of brake hose, was said to be that method which was ordi- narily exercised and regarded as sufficient by prudently constructed railroads."^ Where, however, an injury was occasioned an em- ployee by the breaking of a defective brake rod, the defect consisting of a flaw or crack more than haK way through, made apparent upon examination of broken ends, and there was evidence that, upon making a careful test by striking it with a hammer, the defect might have been disclosed to a skillful inspector, a finding in effect that the defect would have been discovered by a proper and ordinary inspection was sustained and the defendant held liable on the groimd of negligence in not discovering it.'''' Where, notwithstanding an inspection a short time before, a brake wheel on a foreign car came off in a rail- road yard, while being used by employees, it appearing that the nut which held it had been off some time, it was held that there was a failure of proper inspection."* Inspections at intervals of two or three weeks of a safety brake upon a machine, was held not as frequent as was necessary in view of the danger attending the work."^ Cars. What is required to constitute a proper inspection of cars, is a question which courts in some respects have 771. Read v. New York, N. H. 128 Pa. St. 63, 18 Atl. 334, 5 L. R. & H. R. Co., 20 R. I. 209, 37 Atl. A. 439; Union Stock- Yards Co. v. 947. Goodwin, 57 Neb. 138, 77 N. W. 772. Shandrew v. Chicago, St. 357. P., M. & O. R. Co., 73 C. C. A. 430, 774. New Orleans & N. E. R. 142 Fed. 320. Co. v. Clements, 40 C. C. A. 465, 773. Cowan v. Chicago, M. & 100 Fed. 415. St. P. R. Co., 80 Wis. 284, 50 N. 775. Scheurer v. Banner Rub- W. 180; Johnson v. Richmond & ber Co., 227 Mo. 347, 126 S. W. D. R. Co., 81 N. C. 453. See also 1037, 28 L. R. A. (N. S.) 1207. Philadelphia & R. R. Co. v. Huber, 570 Master and Servant. § 266 sought to determine. They are not inherently dangerous apphances, like engines or other machines. However, from use, parts thereof are more or less likely to become worn and defective. It would seem that there should be some reasonably certain guide which should regulate the conduct of railroad companies and govern jiu"ies in determining the question. That standard should be the exercise of ordinary care, and ordinary care as quite gen- erally held and as has been noticed in its apphcation to brakes, is such method ordinarily exercised and regarded as sufficient by prudently conducted railroads. The two foUoAving illustrate the wisdom of the application of such rule. Thus it was held, inspectors are not required in inspecting ears to take hold of the rods or grab irons constituting the ladder on a car to ascertain if they are firm, unless a careful inspection by the eye discloses some defect or probable weakness. If a probable defect is thus disclosed, the apphcation of physical force to test it becomes an imperative duty.''^^ By another court, an inspection could be found insuf- ficient where in inspecting a car, the inspector merely walked along each side of the train and looked at the cars, the rimning gears, ladders, etc. The round of a ladder gave way on account of the wood into which it was fastened being decayed, as a conductor was chmb- ing on to the car."^ It appears, however, that the Texas court is not in accord with the views herein expressed. Thus it was said: The degree of care required of a railroad company in inspecting its caxs, is such care as persons of ordinary prudence would use in like circumstances, and not such care as is ordinarily used by railroad companies in mak- ing inspections; hence it was held the fact that a rail- road ear was inspected by a competent inspector in the ordinary way, does not conclusively show that ordinary 776. Thompson V. Great North- 777. Kiley v. Rutland R. Co., ern R. Co., 79 Minn. 291, 82 N. W. 80 Vt. 636, 68 Atl. 713. See also 637; AUen v. Union Pac. R. Co., Texas & P. R. Co. v. AUen, 62 C. C. 7 Utah, 239, 26 Pac. 297. A. 133, 114 Fed. 177. § 266 Safe Appliances. 571 care was used in making the inspection, so as to prevent a brakeman from recovering for an injury sustained by the insecurity of a hand hold."^ The Texas court also seems to hold that it is the duty of a railroad company to critically and minutely inspect and examine every part of a car, every day. Thus, where a car was inspected the 13th, 14th, 16th and 17th of the month, and the defect was not discovered (the defect was a nut was off which held the round of a ladder) it was said a proper inspection on the 18th, the day of the accident to an employee, would have disclosed the defect and hence the master was hable."' It was held by another com-t that the master's duty of inspection extends to a search for hidden defects in its cars."" With respect to car wheels, there is in use generally by railroads a system of inspection and tests at terminals and inspecting stations, the hammer test. This has been regarded not only as sufficient but the only method prac- ticable. Ordinarily a crack in the wheel, if the test is properly and skilfully applied, will be disclosed, and if a serious defect of this character is subsequently found to have existed, it is evidence that the inspection and test was not properly made.'*^ In a particular case the verdict in favor of plaintiff was sustained on the ground it appeared that if a proper in- spection had been made the master would have known that the lever upon a coal car was defective, though it ap- peared in evidence that an inspection was made the day before. ''^^ 778. International & G. N. R. Co. v. Rogers, 93 Ark. 564, 126 S. Co. V. Hawes, 54 S. W. (Tex. Civ. W. 375, 1199. App.) 325. 781. Union Pac. R. Co. v. Dan- 779. Missouri, K. & T. R. Co. iels, 152 U. S. 684, 38 L. Ed. 597, V. MiUer, 25 Tex. Civ. App. 460, 14 Sup. Ct. Rep. 756. 61 S. W. 978. 782. Zarniek v. C. Reiss Coa. 780. St. Louis, I. M. & S. R. Co., 133 Wis. 290, 113 N. W. 752. 572 Masteb and Sebvant. § 266 Chains. It was held that the proper method for testing a chain used for lifting heavy bodies, where in constant use, was by annealing which should be done every six months. The chain involved had become weak from crystallizar- tion, not discoverable by ordinary inspection. The fact of the condition of the chain and that it broke was siif- ficient to justify a finding that the chain had not been annealed within six months.'*' Drawbars. The uncontradicted evidence showing that the spindles of the drawbars were inspected in the customary way and without removing it from the head and it appearing that the flaw in question which caused it to break could not be discovered by such method of inspection, it was held in the absence of testimony that it was customary for railroad companies, or considered essential by pru- dent men engaged in the operation of railroad trains, to remove spindles of drawbars for the piu-pose of inspecting them, that a charge of negligence on the part of the mas- ter was not sustained."* Electric lamp. It seems to have been held that a more frequent and more thorough inspection should have been made of an electric lamp which was used by an employee in a dark- ened cellar where he was injured by a shock of electricity. What the defect was does not appear, but presumably in the lack of proper insulation. There was some evi- dence that on prior occasions employees had received a slight shock from the lamp."^ 783. Ford v. Eastern B. & S. B. R. Co., 20 R. I. 789, 38 Atl. 926. Co., 193 Mass. 89, 78 N. E. 771. 785. Saures v. Stevens Mfg. 784. Bums v. New York, P. & Co., 196 Mass. 543, 82 N. E. 694. § 266 Sape Appliances. 573 Elevators. It is stated that the duty of a master to inspect a fright elevator on which a servant rides is a positive and affirmative duty which is to be continuously performed."^ And where upon inspection it was found one of the cables was defective, where it was wound around the drum, it was reqtured that an inspection should be made of all the cables on the drum.'" Where the master had an elevator inspected four months before the time when, from some unexplained cause, it fell, by an expert, and had it thoroughly repaired and put ia order, the expert reporting it safe in every way, the master's duty was fully performed.'** But in another case, although an elevator was inspect- ed twice a year by city officials and four times a year by an indemnity company, it appearing from the testi- mony of one witness that there was too much play for the teeth of the dogs to take hold, the question of the master's negligence was held for the jmy.'*^ It was also held a question for the jury whether an elevator rope which broke was properly inspected, it appearing that it was inspected nearly every day and reported safe by the inspector. It broke where spliced. '''' Engines. It was a question of fact whether a railroad company exercised ordinary care in the examination and repair of its engines by inspecting the concealed portions of a pis- ton rod upon those occasions only when the engine is being generally overhauled or when some external de- fect in the rod is discovered. No presumption of neg- Ugenee arises from the mere occurrence, because it did 786. Womble v. Merchants' L. R. A. (N. S.) 592, 127 Am. St. Grocery Co., 135 N. C. 474, 47 S. E. Rep. 939. 493. 789. McGregor v. Reid, Mur- 787. Corn Products Refining dock & Co., 178 lU. 464, 53 N. E. Co. V. King, 94 C. C. A. 304, 168 323, 69 Am. St. Rep. 332. Fed. 892. 790. Cudahy Packing Co. v. 788. Young v. Mason Stable Anthes, 54 C. C. A. 504, 117 Fed. Co., 193 N. Y. 188, 86 N. E. 15, 21 118. 574 Master and Servant. § 266 not conclusively appear that ordinary care would have discovered the fracture.'" Although it appear that an engine was inspected by a competent inspector three days prior to explosion or collapse, and found in good condition, the condition of the engine after the explosion may be shown, and a jury may, from the fact of such condition, be justified in finding that the engine was not when inspected in good condition and the inspection made was not a reasonably careful one.'^^ Because an inspector did not discover that a nut was loose, in part holding an engine step, allowing it to turn, improper inspection was held the cause of the injury to the engineer and the master liable."^ Eye bolt. The master was not liable for failure to discover a latent defect in an eye bolt. His duty did not require him to remove the bolt to inspect it.'^* Hand car handle on. Whether the duty of inspection was properly per- formed where there was evidence that the inspector of hand cars, whose duty it was to inspect them once a month, relied on the statements of the section foreman that the ear which caused injury to a section man was all right, was held a question for the jury. The handle of the car broke apparently from an old crack therein.'''^ Where a hook for lifting purposes broke and the ques- tion was whether the defect therein was discoverable by 791. Cederberg v. Minneapo- 27 Tex. Civ. App. 283, 65 S. W. lis, St. P. & S. S. M. R. Co., 101 681. Minn. 100, 111 N. W. 953. 794. KiUman v. Robert Pal- 792. Cleveland, C, C. & St. L. mer & Son Ship Bldg. & Marine R. Co. V. Ward, 147 Ind. 256, 45 R. Co., 42 C. C. A. 281, 102 Fed. N. E. 325, 46 N. E. 462. 224. 793. San Antonio & A. P. R. 795. Greenfield v. Lake Shore Co. V. Lindsey, 27 Tex. Civ. App. & M. S. R. Co., 117 Mich. 307, 76 316, 65 S. W. 668. See also Gal- N. W. 616. veston, H. & S. A. R. Co. v. Buch, § 266 Safe Appliances. 575 proper inspection, it was said: "The appellant was not bound to subject the hook to unusual tests or to examine the interior parts to see that it was free from defects.""^ Machine. Where a machine had been from time to time properly and practically inspected by foTn* competent machinists, and two bolts were in the guide in proper condition im- mediately before and after the accident, the plaintiff claiming that one was loose and fell out and such was the cause of the accident to him, and the defendant's evi- dence was to the effect that as constructed they could not come out of the guide as claimed by the plaintiff, it was held that the verdict for plaintiff should be set aside as the result of mistake or prejudice. That even if plaintiff's statement be taken as true, under the evi- dence the dropping of the bolt was an unavoidable ac- cident.''" Plate insecurely fastened over place of work. Where the dangerous condition of premises could read- ily have been ascertained by proper inspection, for in- stance a heavy plate iron, insecurely fastened to beams immediately over the place employees were required to do their work, and the attention of the employer's inspector had been called to the danger and he pro- nounced it safe when it was not so in fact, and a proper inspection would have so disclosed, the master is hable to a servant injured by means of the plate falling upon him. '^8 Premises. The master's duty of inspection to keep his place in a reasonably safe condition, was stated to be a continuing one, and the rule appUed where iron plates which had be- 796. Brossman v. Drake Stand- Iron Co., 62 N. J. L. 540, 41 Atl. ard Mach. Works, 232 lU. 412, 83 680. N. E. 936. 798. Indiana Iron Co. v. Cray, 797. Coyle v. A. A. Griffing 19 Ind. App. 565, 48 N. E. 803. 576 Masteb and Seevant. ^ 266 come somewhat covered witli ice were piled by a fellow- servant and fell upon tlie plaintiff."' Rods supporting crane. Certain iron rods used as stay rods to support a heavy crane used upon a dredge, broke, permitting the crane to fall, injuring a workman upon the deck. They had been used as hog chains on a boat for years prior, and evi- dently were insufficient for the purpose to which they were last put. An expert made a casual examination and pro- nounced them sufficient. The evidence was sufficient to sustain a finding that the employer failed to provide reasonably safe guy rods.*"" Sling used in unloading vessel. Neither the owner of a vessel nor the stevedore unload- ing it under contract, is liable for injuries to a servant of the latter caused by a latent defect in a shng, a part of the hoisting apparatus furnished by such owner, if the manner of examination was that usually adopted, and ordinary care was used to avoid accident in its selec- tion. 8" Rope holding swinging scaffold. Plaintiff, a workman, occupied a swinging scaffold in putting a cornice upon a building. Before the work was completed one of the rope attaclunents which held it, broke, precipitating the plaintiff to the ground. It was claimed that the rope broke because its strength was weakened by decay. On the other hand it was shown that the rope had been recently tested and foimd suf- ficient; that the rope became weakened by the act of the plaintiff in permitting muriatic acid to accumulate thereon. The rope showed the effects at the point where 799. Hamm v. Bittendorf Axle 801. McCall v. Paciflo Mail 8. Co., 125 N. W. (Iowa), 186. S. Co., 123 Cal. 42, 55 Pac. 706. 800. Jacobson v. Johnson, 87 Minn. 185, 91 N. W. 465. § 267 Safe Appliances, 577 it broke of having been burned by the acid. It was a question for the jury as to the master's negligence.^"* Telegraph pole. Where a lineman in the employ of a telegraph com- pany was injxired by a cross bar breaking from his own weight, and it did not appear from external appearances that there was any defect discoverable by ordinary in- spection, and it did appear that the company had a sys- tem of inspection as to such arms when purchased, it was held that negligence could not be inferred.*"* Top lift. A mere external inspection of an appliance known as a top lift, the splicing being sewed with spun yarn, wrap- ped in bagging and saturated with oil, was not sufficient where the appliance had lain on the deck of the vessel during several trips to the West Indies,*"* Unexploded blast. Failure to discover upon an examination by two com- petent persons, that a blast had not exploded, was held a mistake, not negligence.™^ C. Inspection op Foreign Cars. § 267. General rixle. A question of some difficulty has been presented to the courts as to the natm-e and extent of the master's duty in respect to foreign cars. The demands of com- merce, creating an immense increase of traffic from dis- tant points to convenient centers, has made it imprac- ticable to transfer freight from cars in which originally loaded, upon its receipt by connecting Unes, and it has 802. Duchene v. Lefebvre Des- 804. The King Gniffydd, 65 C. lauriers R. & C. Co., 101 Minn. C. A. 495, 131 Fed. 189. 473, 112 N. W. 865. 805. Harris v. Balfour Quarry 803. Flood V. Western Union Co., 131 N. C. 553, 42 S. E. 973. Tel. Co., 131 N. Y. 603, 30 N. E. 196. 1 M. & S.— 37 578 Masteb and Sebvant. § 268 become a practical necessity to receive such freight in bulk and transport it to or towards its destination in the cars in which it was loaded or received. These cars formerly, prior to federal legislation upon the subject, oft times were and to some extent stUl are of different patterns, makes and style of construction from those in use by the corporation called upon to haul them. These cars must be forwarded without imnecessary delay. If in an ordinary condition railroads under the law are compelled to receive and transport them. To hold railroad companies in respect to such ears to the same standard or measure of duty as in case of their own cars would be very unjust and frequently would impair the efficiency of their service to the public. So it has been held that the master's liability to his servant in. respect to injuries caused by defects in and iasufficiency of for- eign cars, does not rest upon his duty to furnish proper instrumentalities, but upon his duty to make proper inspection. ^"^ § 268. Duty as performed by employment of competent servants. It is the doctrine in some jurisdictions that this duty is performed by the employment of sufficient and com- petent inspectors, acting imder proper superintendence, rules and instructions.*" 806. Keith v. New Haven & R. Co., 97 Mich. 329, 52 N. W. 942, N. R. Co., 140 Mass. 175, 3 N. E. 56 N. W. 756, 16 L. R. A. 342, 22 28; Maokin v. Boston & A. R. Co., L. R. A. 292, 37 Am. St. Rep. 348; 135 Mass. 201, 46 Am. Rep. 456; Brann v. Chicago, R. I. & P. R. KeUy V. Abbott, 63 Wis. 307, 23 N. Co., 53 Iowa, 595, 6 N. W. 5, 36 W. 890, 53 Am. Rep. 292; Smith v. Am. Rep. 245. FKnt & P. M. R. Co., 46 Mich. 258, 807. Keith v. New Haven & N. 9 N. W. 273, 41 Am. Rep. 161; R. Co., 140 Mass. 175, 3 N. E. 28; Hathaway v. Michigan Cent. R. Mackin v. Boston & A. R. Co., 135 Co., 51 Mich. 253, 16 N. W. 634, Mass. 201, 46 Am. Rep. 456; Thyng 47 Am. Rep. 569; Baltimore & P. v. Eitchburg R. Co., 156 Mass. 13, R. Co. V. Mackey, 157 U. S. 72, 39 30 N. E. 169, 32 Am. St. Rep. 425; L. Ed. 624, 15 Sup. Ct. Rep. 491. KeUy v. Abbott, 63 Wis. 307, 23 See Dewey v. Detroit, G. H. & M. N. W. 890, 53 Am. Rep. 292. § 268 Sape Appliances. 579 The obligation on the part of the master, as stated by the Massachusetts court, in respect to foreign cars, is to provide at the point where such cars are received, competent and suitable inspectors, acting under proper instructions and superintendence, to examine such cars and determine whether they are in condition to be re- ceived and handled with safety. The burden of proof is upon the plaintiff, in such cases and he must satisfy the jury, by a fair preponderance of evidence, either that there was not a competent inspector, or that there was an insufficient number of inspectors, or that the inspector was not acting under instructions, that he was not properly in- structed what he should do, or that he was not properly superintended in the performance of his duty.^"* Contrary doctrine. However, a majority of the courts hold the doctrine that the master's duty is not fully performed by the em- ployment of a sufficient number of competent inspectors, but only when proper inspection has actually been made.*"' The New Jersey court state the rule as follows, to-wit: First, That on receiving a car for transportation, the company is entitled to assume that the car had been prop- erly constructed of suitable materials for all the purposes for which the owner intended it to be used. Second, That on receiving the car the company is boimd to make 808. Keith v. New Haven & N. Missouri Pao. R. Co., 94 Mo. 468, 7 R. Co., 140 Mass. 175, 3 N. E. 28. S. W. 476, 4 Am. St. Rep. 392; 809. Baltimore & P. R. Co. v. Dewey v. Detroit, G. H. & M. R. Mackey, 157 U. S. 72, 39 L. Ed. Co., 97 Mich. 329, 52 N. W. 942, 624, 15 Sup. Ct. Rep. 491; Jones 56 N. W. 756, 16 L. R. A. V. New York Cent. & H. R. R. Co., 342, 22 L. R. A. 292, 37 Am. St. 92 N. Y. 628; Gottlieb v. New Rep. 348; Pittsburg & W. R. Co. York, L. E. & W. R. Co., 100 N. Y. v. Thompson, 27 C. C. A. 333, 82 462, 3 N. E. 344; Reynolds v. Bos- Fed. 720. Not bound to repeat ton & M. R. Co., 64 Vt. 66, 24 AtL tests used in original construction 134, 33 Am. St. Rep. 908; Mason of car. Louisville, N. A. & C. R. V. Richmond & D. R. Co., Ill N. C. Co. v. Bates, 146 Ind. 564, 45 N. 482, 16 S. E. 698, 18 L. R. A. 845, E. 108. 32 Am. St. Rep. 814; Gutridge v. 580 Masteb and Sebvant. § 269 such, examination as would be likely to discover condi- tions rendering a car so constructed unfit for safe trans- portation on the company's Line. This has been called a cursory examination, not very minute. Third, That at convenient places during the journey the company is bound to make the same inspection and tests of such a car, as it should make of its own cars, for the purpose of discovering defects Ukely to occur ta the course of transportation. ^ ^^ The rule thus stated has the merit of not only being concise, but reasonable and just. § 269. Duty is that of ordinary inspection. It will be noted that the courts quite generally use the expression that the master's duty, upon receipt of foreign cars, is to make an ordinary iuspection, or exer- cise reasonable care in making iuspection. Such ex- pressions are very indefinite, but it should be assumed, however, that it is meant by such expression, that the receiving company, shall make what the New Jersey court terms a cursory test or examination and not such critical tests as is reqvured in respect to its own cars, not having the same opportunity or facilities for making such critical test. Thus it was said it is the duty of a railroad company to inspect such cars before putting them ia use where there is time and opportunity to do so. They will be chargeable with the consequences of such defect as an ordinary iuspection would have discovered. They will not be excused for a failure to perform that duty because such cars are only used for a brief time or carried a short distance. The fact that the company is not required to repair defects does not relieve it from its duty of inspection.'" The duty of the receiving company being that of ordi- nary inspection merely, it may assume that all parts of 810. Anderson v. Erie R. Co., 574; Gottlieb v. New York, L. B. 68 N. J. L. 647, 54 Atl. 830. & W. R. Co., 100 N. Y. 462, 3 N. E. 811. AteMson, T. & S. F. R. 344. Co. V. Penfold, 57 Kan. 148, 45 Pae. § 270 Safe Appliances. 581 such, car which appear to be in good condition are so in fact."'' § 270. Expression "duty same as its own" explained. The expression is frequently used that the master's duty of inspection is the same as to foreign cars as in respect to its own.^" Certainly it is not intended that a railroad company shall examine such cars to the extent of searching for hidden or latent defects,*^* but merely such an examina- tion as should be made of its cars before attaching them to or including them ia its trains. This is indicated by what is stated by the New York court as foUows: A raib-oad company is bound to inspect the cars of another company used upon its road, just as it would inspect its own cars. It owes this duty as master, and is respon- sible for the consequences of such defects as would be dis- closed or discovered by ordinary inspection. Where cars come to it from another road which have defects visible or discernible by ordinary examination, it must either remedy such defects or refuse to take them. This duty of examining foreign cars must obviously be per- formed before such cars are placed in trains on its road or furnished to its employees for transportation.*" 812. Ballou V. Chicago, M. & Louisville & N. R. Co. v. Reagan, St. P. R. Co., 54 Wis. 257, 11 N. 96 Teiin. 128, 33 S. W. 1050; Leak W. 559, 41 Am. Rep. 31; Kelly v. v. CaroUna Cent. R. Co., 124 N. C. Abbott, 63 Wis. 307, 23 N. W. 890, 455, 32 S. E. 884; Felton v. Bull- 53 Am; Rep. 292. See also Ala- ard, 37 C. C. A. 1, 94 Fed. 781; bama G. S. R. Co. v. CarroU, 28 C. Missouri, K. & T. R. Co. v. Cham- C. A. 207, 84 Fed. 772; Atchison bers, 17 Tex. Civ. App. 487, 43 S. T. & S. F. R. Co. V. Meyers, 22 C. W. 1090; Budge v. Morgan's L. & C. A. 268, 76 Fed. 443. T. R. & S. S. Co., 108 La. 349, 32 813. Eaton v. New York Cent. So. 535, 58 L. R. A. 333. & H. R. R. Co., 163 N. Y. 391, 57 814. Gutridge v. Missouri Pao. N. E. 609, 79 Am. St. Rep. 600; R. Co., 94 Mo. 468, 7 S. W. 476, 4 Jones V. New York, N. H. & H. R. Am. St. Rep. 392. Co., 20 R. I. 210, 37 Atl. 1033; Un- 815. Goodrich v. New York ion Stock- Yards Co. v. Goodwin, Cent. & H. R. R. Co., 116 N. Y. 57 Neb. 138, 77 N. W. 357; Sack 398, 22 N. E. 397, 5 L. R. A. 760, V. Dolese, 137 lU. 129, 27 N. E. 62; 15 Am. St. Rep. 410; Texas & P. 582 Mastbb and Sbevant. §§271, 272 That it was not the duty of a raikoad company to inspect foreign ears with the same thoroughness as its own, was held by a federal court. The reason given seems to be the want of proper opportunity and the fact that the car comes to the company as one actually on trial, showing its fitness.*" § 271. Distinction as to duty between foreign and do- mestic cars. It woidd seem that some courts make no distinction whatever in respect to the duty of inspection as between foreign cars and those owned by the company transport- ing them. Thus it was held that where a brakeman received an injury through a defect in the steps of a freight car, which was a foreign car, he might recover from the defendant company. The defendant's duty was said to be that of inspection, and if it pass and haul cars faulty in construction or dangerously out of repair, it is answerable to its own employees who are thereby injured. It was said that no sufficient reason appears for discriminating between the Uability of a railroad company for injuries to its employees in handling upon its own Une the cars of another corporation which are faidty in con- struction or dangerously out of repair, and its Uability to them for injuries in handling such cars by its order else- where. It is not the ownership of the cars or of the Une on which they are moved which imposes the Uability upon the company, but it is the handUng and shifting of them by others.*^' § 272. Duty upon discovery of defects. The rule is stated: "If the car come to it (the receiving company) with defects visible or discoverable by ordinary inspection, its duty is either to return it or to repair it sufficiently to make it reasonably safe. The inspection which the company is required to make of a foreign car R. Co. V. Archibald, 170 U. S. 665, CarroU, 28 C. C. A. 207, 84 Fed. 42 L. Ed. 1188, 18 Sup. Ct. Rep. 772. 777. 817. Elkiiis v. Pennsylvaian R. 816. AlabamaG. S. R. Co. v. Co., 171 Pa. St. 121, 33 Atl. 74. §§ 273, 274 Sai-e Appliances. 583 tendered to it by another for transportation over its lines, is not merely a formal one, but sboidd be made with reasonable diligence so that its employees mLl not be exposed to perils which reasonable care would have guarded against. It is not, however, to be held responsi- ble for hidden defects which could not have been dis- covered by such an inspection as the exigencies of traffic will permit."*^* § 273. Reasonable time to inspect. When foreign cars come upon a road it ought to be shown they were there for a reasonable time, with oppor- tunity to inspect them, and that the railroad company omitted a duty in respect thereto. A railroad company is not bound to make constant inspection, but only at reasonable intervals, and where such is practicable, and to make the same with ordinary care.*^' It was said, however, that while a railroad company may not have had notice a sufficient length of time, of the defect in a foreign car, to have repaired the same, it is its duty to warn employees of its condition.*^® § 274. Duty on part of delivering company. A railroad company delivering a car to another to be transported by the latter, owe the employees of the latter the duty of usiag reasonable care to discover and remove its dangerous defects before it is so deKvered. The duty of the latter company is to inspect such car. Each are hable for injury to employees by reason of such defects if there is a failure of duty ia the respect named. ^^^ 818. AtcHson, T. & S. F. R. 819. Kettennan v. Dry Fork Co. V. Myers, 11 C. C. A. 439, 63 R. Co., 48 W. Va. 606, 37 S. E. Fed. 793; Terra Haute & I. R. Co. 683. V. Mansberger, 12 C. C. A. 574, 820. Denver, T. & Ft. W. R. 65 Fed. 196; New York, C. & St. Co. v. Smock, 23 Colo. 456, 48 L. R. Co. V. Hamlin, 170 Ind. 20, Pao. 681. 83N.E. 343; Southern Pac. R. Co. 821. Pennsylvania R. Co. v. V. Winton, 27 Tex. Civ. App. 503, Snyder, 55 Ohio St. 342, 45 N. E. 66 S. W. 477. 559, 60 Am. St. Rep. 700. 584 Masteb and Servant. §§ 275-278 § 275. Rule as applicable to sidings where cars are de- livered. The duty imposed upon a raiboad company to inspect cars received from other companies and to see that they are in good and safe condition for their employees to handle, does not apply to persons or companies on whose sidings cars are delivered for the purpose of permitting the owner of the siding to unload the freight, even though the sidings of such person or company may be extensive and great in length.* ^^ Nor does the rule requiring railroad companies to in- spect foreign cars apply to a mining company.*''* § 276. Rule in South Carolina. The South Carohna court is not in accord with the great majority of other courts holding that the duty of the master in respect to foreign cars is that of ordinary inspection for defects, but holds that the law requires a master to furnish suitable appUances, whether they are his property or that of another.*^* § 277. Foreign cars used in company's own business. The rule that as to cars of foreign companies received for transportation, a railroad company owes, at common law, only the duty of inspection, does not apply to a for- eign car used in its own business, where so used that the company may be regarded as having adopted it as its own.*" § 278. Immaterial that cars are not to be sent out on road. The fact that a railroad company merely handles a for- 822. McMullen v. Carnegie & Navigation Co., 224 Pa. St. 408, Bros. & Co., 158 Pa. St. 518, 27 73 Atl. 552. Atl. 1043, 23 L. R. A. 448; HaskeU 824. Youngblood v. South Car- & B. Car Co. v. Przezdziankowski, olina & G. R. Co., 60 S. C. 9, 38 170 Ind. 1, 83 N. E. 626, 14 L. R. A. S. E. 232, 85 Am. St. Rep. 824. (N. S.) 972, 127 Am. St. Rep. 352. 825. MeNamara v. Boston & 823. McGinley v. LeMgh Coal M. R. Co., 202 Mass. 491, 89 N. E. 131. § 279 Sape Appliances, 585 eign car in its switch yards, for the purpose of being loaded and returned to another road, does not affect the duty to inspect.'^' D. Proximate Cause. § 279. Failure to inspect as proximate cause. Mere failure to inspect is not neghgence where such inspection could only discover what the servant and all others knew,*^' or where a reasonable inspection would not have disclosed the defect causing the injury.*^* Thus, where the defect in the handle bar of a hand car which broke could only have been discovered by cutting into the wood or breaking it, it being apparently sound, such facts fail to estabhsh neghgence on the part of the master.*"' 826. Texas & P. R. Co. v. him by the exercise of proper skill Archibald, 170 U. S. 665, 42 L. Ed. and care in the application of the 1188, 18 Sup. Ct. Rep. 777. ordinary and approved tests, yet 827. Shea v. Kansas City, Ft. the defects are such that they S. & M. R. Co., 76 Mo. App. 29. could not be discovered by him 828. Stackpole v. Wray, 74 after a careful and skilful appKcar- App. Div. 310, 77 N. Y. Supp. tion of the ordinary and approved 633; Hoffman v. Dickinson, 31 tests, then he cannot be held re- W. Va. 142, 6 S. E. 63; Saxe v. sponsible, although it might appear Walworth Mfg. Co., 191 Mass. that the defects might have been 338, 77 N. E. 883, 114 Am. St. Rep. discovered by the manufacturer by 613 (emery wheel); Howard v. applying the proper tests. Nash- Missouri Pao. R. Co., 173 Mo. 524, ville & D. R. Co. v. Jones, 9 Heisk. 73 S. W. 467 (handle bar on hand (Tenn.) 27; Illinois Cent. R. Co. v. car). While the employer will be Coughlin, 65 C. C. A. 101, 132 Fed. responsible for any injury resulting 801. from defects in appliances which 829. Howard v. Missouri Pao. might have been discovered by R. Co., 173 Mo. 524, 73 S. W. 467. 586 Master and Sebvant. X. KNOWLEDGE OR NOTICE OF MASTER. Sec. 280. Necessity for pleading and proof. 281. When chargeable with, knowl- 282. Knowledge by agent or serv- ant. Illustrations of rule. Employee appointed to car- ry messages. Engineer. Foreman. General manager. Machinist. Manager. Master mechanic. Mine boss. Section boss. Superintendent. Switchmen. Wire chief. Yard master. 283. Knowledge as chargeable to master from condition of appliances or otherwise than as heretofore stated. Blow pipe. Bucket. Coupling. Electric lamp. Derrick. Eye bolts. Fork handle. Fuse. Hammer. Hand car, handle on. Hood covering machine, re- moval of. Ladder. Ladle, for carrying molten metal. Machiae planer. Seo. Nut on bolt dropping off. Hole, defect in. RaU, sphnter. Steam pipe, manner of adjustment. 284. Rule in Kentucky. 285. Kjiowledge or means of knowl- edge of particular defect. 286. Defects in original construc- tion. Master designing and con- structing steam plant. 287. Defective appliance not in it- self dangerous. 288. Danger unknown and not reasonably anticipated. Defect must be suggestive of danger. Belt, lacing of. Barrel, explosion of. Crank slipping off shaft. Guard, sufficiency of. Locomotive, splinter in foot board. Machine in saw mUl. Machine behaving in unac- countable manner. Rope. Steam chest, grease and dust on. Water coolers, potash used to cleanse. 289. Evidence to show notice. Prior accident from same cause. Proof of no prior accident. 290. Notice presumed from lapse of time. Appliance for unloading grain. Boiler. §280 Sai'e Appliances. 587 Sec. Brake. Brake stafi. Bucket used for hoisting coal. Chain. Coupling device. Elevator. Engine, broken step. Floor, rotten. Handhole. Handle on ladder. Hook. Sec. Insulation of wires, absence of. Jaw strap, absence of. Lamp, rusty rods. Locomotive wheel. Nut on machine, absence of. Truck. 291. Failure to discover what would have been discov- ered In exercise of rea- sonable care. § 280. Necessity for pleading and proof. Knowledge on the part of the master of the defect eom- plained of, either actual or constructive, is an independent element of liability in actions against him for injuries to a servant. It must be affirmatively alleged and proved by the latter, s'" The knowledge need not be actual knowledge of the defects but it is sufficient to show such facts and circum- stances to exist that, if the master had exercised reason- 830. Creamery Package Mfg. Co. V. Hotsenpiller, 24 Ind. App. 122, 56 N. E. 250; Cowan v. Um- bagog Pulp Co., 91 Me. 26; Pitts- burg, C. & St. L. R. Co. V. Adams, 105 Ind. 151, 5 N. E. 187; Current V. Missouri Pac. R. Co., 86 Mo. 62; Smith V. St. Louis, K. C. & N. R. Co., 69 Mo. 32, 33 Am. Rep. 484; Porter v. Hannibal & St. J. R. Co., 71 Mo. 66, 36 Am. Rep. 454; Devitt V. P. R. Co., 50 Mo. 302; Dale V. St. Louis, K. C. & N. R. Co., 63 Mo. 455; Covey v. Han- nibal & St. J. R. Co., 86 Mo. 635; Columbus, C. & C. I. R. Co. v. Troesch, 68 111. 545, 18 Am. Rep. 578; Brabbitts v. Chicago & N. W. R. Co., 38 Wis. 289; Hobbs v. Stauer, 62 Wis. 108, 22 N. W. 153; Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311; Malone v. Hawley, 46 Cal. 409; Brymer v. Southern Pac. Co., 90 Cal. 496, 27 Pac. 371; Contra Branch v. Port Royal, etc., R. Co., 35 S. C. 405; Aga v. Har- bach, 93 N. W. (Iowa) 601; Hood V. Argonaut Cotton Mill Co., 23 Ky. L. Rep. 460, 62 S. W. 1043; Missouri, K. & T. R. Co. v. Thomp- son, 11 Tex. Civ. App. 658, 33 S. W. 718; Goodrich v. Kansas City* C. & S. R. Co., 152 Mo. 222, 53 S. W. 917; Atchison, T. & S. F. R. Co. v. Holt, 29 Kan. 149; Virginia & N. C. Wheel Co. v. Chalkley, 98 Va. 62, 34 S. E. 976; Hoffman v. Dickin- son, 31 W. Va. 142, 6 S. E. 63. 588 Mastee and Servant. §§ 281, 282 able care and diligence, lie would have ascertained the true condition of the appliances or machinery by exam- ination or inspection.*" § 281. When chargeable with knowledge. The master may become chargeable with knowledge in one of three ways: 1, by showing actual knowledge. 2, from length of time the defect has existed. 3, from failure to exercise reasonable and proper care in examina- tion and inspection to discover the defect, where otherwise it would have been discovered. There may be a fourth, as where the master himself constructs the appliance or has it constructed under his supervision, and by his employees.*'^ § 282. Knowledge by agent or servant. Ordinarily notice to or knowledge by an agent or em- ployee having authority or duty in the premises to make the repairs is imputable to the master.*^* And it seems to have been held that an employee whose duty it is to observe the condition of an apphance or structure, and to keep it in repair, is chstrgeable with im- phed notice which is also imputable to the master.*'* Where, however, notice or knowledge is brought home to an agent who has no duty or authority in the premises, 831. Johnson V. Spear, 76 Mich. S. W. 152; Chapman v. Southern 139, 42 N. W. 1092, 16 Am. St. Pac. Co., 12 Utah, 30, 41 Pa 590 Mastee and Servant. § 282 certain defects therein, not remedied, and the boiler having exploded after it was received by the defendant, such engi- neer then being employed by the defendant, the defendant was not chargeable with notice of such defects in the absence of their existence being communicated to it.'*" Foreman. Notice to a foreman is generally notice to the com- pany.*" For instance, notice of a defect in an engine given to the foreman of the repair shop and to whom such reports was required to be made by the rules of the company, was in effect notice to the company.'*^ So notice of a defect in an engine given to the foreman of the round house, was notice to the company, although he did not have charge of the machinery.*** Notice that the lever of a machine used in making screws, had become loose, was imputable to the master, from knowledge of the foreman.'** Knowledge that a machine was defective, was imputed to the master, where on several occasions the blade of the press descended automatically while at rest, and the fore- man had been advised thereof.'*^ But notice to an employee having charge of the wood work in the construction of a power house, that a water valve in such house was defective, was not chargeable to the master.'*® 840. Hastings Lumber Co. v. Bants v. Wabash W. R. Co., 40 Garland, 52 C. C. A. 609, 115 Fed. Mo. App. 458. 15. 842. Brabbitts v. Chicago & 841. See Union Bridge Co. v. N. W. R. Co., 38 Wis. 289. Teehan, 92 lU. App. 259 [aflBrmed 843. Chicago & E. I. R. Co. v. in 190 111. 374, 60 N. E. 533]; Rung, 104 lU. 641. Falkenau v. Abrahamson, 66 lU. 844. Chicago Screw Co. v. App. 352; AUen B. Wrisley Co. v. Weiss, 203 lU. 536, 68 N. B. 54. Burke, 106 111. App. 30; Cudahy 845. Donovan v. Chase Shaw- PacMng Co. v. Hays, 74 Kan. 124, mut Co., 201 Mass. 357, 87 N. B. 85 Pao. 811; Franklin V. Missouri, 580. K. & T. R. Co., 97 Mo. App. 473, 71 846. Deane v. Roaring Fork S. W. 540; Ohio & M. R. Co. v. E. L. & P. Co., 5 Colo. App. 521, Stein, 140 Ind. 61, 39 N. E. 246; 39 Pac. 346. 282 Sape Appliances. 591 General agent. Notice to the general agent of tlie master of defects in an elevator caused by use, he having general charge of the business and authority to have it repaired, was charge- able to the master.**^ General manager. A notice having been given to a former general manager of the defendant of defects, it is sufficient to charge the corporation with notice thereof, though no notice was given to the present general manager.*** Machinist. Knowledge by a machinist in an establishment em- ployed and charged with the duty of keeping the machin- ery in repair, that he may have of defects in such machinery, is imputable to the master.*** Manager. It was a question for the jury whether the master's duty was performed in the employment of an expert to make repairs on an elevator of a poor class, having defects known to his manager, which were not repaired. *^^ Master mechanic. Ejiowledge by the master mechanic that a boiler was out of repair, he having given instructions to have it examined and repaired, which the mechanics to whom such instructions were given, failed to properly do, was charge- able to the master. *^^ 847. Corcoran v. Holbrook, 59 R. Co., 48 La. Ann. 1057, 20 So. N. Y. 517, 17 Am. Rep. 369; 284, 36 L. R. A. 114. Bowring v. Wilmington Malleable 849. Fox v. Le Comte, 2 App. Iron Co., 5 Pennew. (Del.) 594, Div. 61, 37 N. Y. Supp. 316. 66 AtL 369. See also LarMn v. 850. Goggin v. Osborne, 115 Washington Mills Co., 45 App. Cal. 437, 47 Pac. 248. Div. 6, 61 N. Y. Supp. 93. 851. FuUer v. Jewett, 80 N. Y. 848. Bland v. Shreveport Belt 46, 36 Am. Rep. 575. 592 Master and Sebvant. § 282 Mine boss. Knowledge by a mine boss that the drawbar to a loaded car in a mine was cracked was chargeable to the master. *^^ Section boss. Where an employee on a hand car was injm-ed by the handle, comparatively new, becoming loose and tm'ning in the socket, and it appeared that it had previously be- come loose and was under the direction of the section boss, that it was secured by a nail, and there being evi- dence that a screw would have been safer, the question of the master's negligence was held for the jury.**' It was said if the servant of a railroad company appointed to keep the track in repair, knows, or by the proper discharge of his duties might have known, of its condition, then his knowledge or that which he might have acquired, is imputable to the company.'** The rule was apphed where the section master knew of a latent defect in the lever upon a hand car.'" Also where one who was intrusted with the keeping of a railroad track in repair had knowledge of the dangerous position of a stump at the side of the track."* Also where he had knowledge of the dangerous condition of the track by reason of the position of a large stona that might fall upon it.'" Superintendent. Notice to the superintendent of a raUroad company of defects in the track is notice to the company.'" 852. Rima v. Rossie Iron 855. Clovers v. W. St. L. & Works, 120N. Y.433, 24 N. E. 940. P. R. Co., 21 Mo. App. 213; De- 853. Louisville & N. R. Co. v. drick v. Mlssoxiri Pao. R. Co., 21 MiUer, 22 Ky. L. Rep. 327, 57 S. Mo. App. 433. W. 230. 856. Riley v. Railway Co., 854. Porter v. Hannibal & St. 27 W. Va. 145. J. R. Co., 71 Mo. 66, 36 Am. Rep. 857. Baltimore & O. R. Co. v. 454; Lewis v. St. Louis & W. R. McKenzie, 81 Va. 71. Co., 59 Mo. 495, 21 Am. Rep. 385; 858. Patterson v. Pittsburg & H-aU V. Missouri Pao. R. Co., 74 C. R. Co., 76 Pa. St. 389, 18 Am. Mo. 298. § 283 Sate Appliances. 593 Switchman. Knowledge of a switchman in the company's yard of defects in a car was imputed to the company. It was further held that where such switchman communicated by telephone from the switch house in the yard to the ofl&ce that the car was not in order and received a reply from some one to send her out, the presumption was that the answer was from some one with authority and the admis- sion of such proof was not error. *^' Wire chief. Notice of the dangerous condition of electric wires to the wire chief, a vice principal, was notice to the em- ployer.**" Yard master. Notice to the yard master of defects in an engine was notice to the company, and a promise by him to have it repaired was binding on the company.*" Notice to such employee that the draw heads upon a, locomotive and a car were defective from wear was thus imparted to the company.**^ § 283. Kjiowledge as chargeable to master from condi- tion of appliances or otherwise than as heretofore stated. The condition of an appliance with reference to defects therein, is oftentimes of such a character that knowledge on the part of the master will be presumed. Sometimes the presumption attaches by reason of the master's duty of inspection or supervision, the length of time in use, and Rep. 412; Frazier v. Pennsylvania 861. Lyttle v. Chicago & W. R. Co., 38 Pa. St. 104, 80 Am. Deo. M. R. Co., 84 Mich. 289, 47 N. W. 467. 571. 859. Reed v. Burlington, C. R. 862. Union Stock Yards Co. v. & N. R. Co., 72 Iowa, 166, 33 N. W. Larson, 38 Neb. 492, 56 N. W. 1079. 451, 2 Am. St. Rep. 243. See also Ashman v. Flint & P. M. 860. Texarkana Tel. Co. v. R. Co., 90 Mich. 567, 51 N. W. Pemberton, 86 Ark. 329, HI S. W. 645. 257. 1 M. & S. — 38 594 Masteb and Servant. § 283 often from the character of the apphance as to its fitness or sufficiency. It also, in some jm-isdiotions, attaches from the negligence of fellow-servants in the manner of its use. WhUe in general as noted in a subsequent chapter, the fact of the accident is not proof of negUgenee on the part of the master, it may of itself tend to charge the mas- ter with knowledge of the defect that may have caused it. Each ease so far depends upon its particular facts, general rules having been stated, that such cases may be important as showing the application of such rules to par- ticular apphances, and conditions, and hence, in a con- densed form, such cases are noticed as illustrations. Where it is stated the general rule was applied it is meant the rule that a master is not ordinarily Mable for latent defects not discoverable by proper inspection or other performance of duty. Blow pipe. In the particular case, the evidence was sufficient to sus- tain a finding that a blow pipe in a pulp mill was worn and defective to the knowledge of the defendant.*" Bucket. A ship was held hable to an employee for injuries sus- tained by reason of the bucket used in hoisting ashes from the hold not stopping at the proper place, it appear- ing that by reason of want of proper adjustment such was the result, and that the defect was known to the officers and could readily have been remedied.**^ Coupling. The master was chargeable with notice where the coup- ling of a freight car suddenly became out of repair.*" And also where there was a broken spring in a draw- bar, it not appearing when it was broken.*^* 863. Horr v. C. W. Howaxd & 865. Indianapolis, B. & W. R. Co., 126 Wis. 160, 105 N. W. 668. Co. v. Flanigan, 77 lU. 365. 864. New York & Wilmington 866. St. Louis, I. M. & S. R. Steamship Co. v. McLaugMin, Co. v. Gaines, 46 Ark. 555. See also 14 C. C. A. 652, 67 Fed. 797. Atchison, T. & 8. F. R. Co. v. § 283 Sai'e Appliances. 595 Electric lamp. The act of inserting a glass bulb in the socket of an electric lamp not ordinarily being accompanied with, danger, neghgence in supplying such an appUanoe or main- taining it, cannot be charged, where no notice, either actual or constructive, on the part of the master, is shown, as to the UabiUty of an employee receiving a shock there- from.*^' Derrick. It was said in reference to a derrick which was alleged to have been insufficient for the load it was hf ting, that it was the duty of the master to know that it was suitable and reasonably safe for the purpose.*** Eye bolt. The general rule was apphed to an eye bolt which was apparently sufficient but in reality insufficient solely because of latent defects. The master was not chargeable with notice.**^ Fork handle. The general ride was also applied to a fork handle which appeared to be sound but had a latent defect, not observ- able until after the accident.*™ Fuse. Although nothing appeared to indicate that the master had knowledge that a piece of fuse taken from a box con- taining fuse of the best make, was defective, the question of his neghgence was held a question for the jury.*'^ Wagner, 33 Kan. 660, 7 Pac. 204 Atchison, T. & S. F. R. Co. v, Ledbetter, 34 Kan. 326, 8 Pac. 411 Skellinger v. Chicago & N. W. R Co., 61 Iowa, 714, 17 N. W. 151 V. Shields, 173 Ind. 68, 88 N. E. 595. 869. The Flowergate, 31 Fed. 762. 870. McAvoy v. Pennsylvania Perry v. Michigan Cent. R. Co., Woolen Co., 140 Pa. St. 1, 21 Atl. 108 Mich. 130, 65 N. W. 608. 246. 867. Aga V. Harbach, 93 N. W. 871. Pintar v. Pitt Iron Min. (Iowa), 601. Co., 107 Minn. 256, 119 N. W. 868. Romona OoHtio Stone Co. 1053. See also Nustrom v. Shenan- 596 Master and Seevant. § 283 Hammer. The master is not liable for injuries resulting from the breaMng of a hammer tmless with knowledge of some latent defect. The fact that other hammers broke in the same work does not show neghgence in selecting them."^ Hand car, handle on. Where the defect was in that portion of a hand car (handle on) which is fastened in an iron socket, and could not be discovered without removing it from the socket, the master could not be held Hable for injuries caused by its breaking, in the absence of actual knowl- edge of this defect."' Hood covering machine, removal of. It not appearing when, why or by whom the hood covering a machine had been removed, the master was not liable for a residting injury, in the absence of evidence showing knowledge on his part or facts charging him with knowledge.*^* Ladder. The general rule was appKed where a ladder to a car was removed by accident or otherwise.*'* Ladle for carrying molten metal. The rule was applied to a ladle for carrying molten metal, it having been used for fifteen years without acci- dent, the defect not being obvious or one that would be disclosed by the exercise of proper care."* go Furnace Co., 105 Minn. 140, 874. Hood v. Argonaut Cotton 117 N. W. 480. MiUs, 23 Ky. L. Rep. 460, 62 872. Georgia R. & B. Co. v. S. W. 1043. Nelms, 83 Ga. 70, 9 S. E. 1049, 875. Greenleaf v. Illinois Cent. 20 Am. St. Rep. 308. R. Co., 29 Iowa, 14, 4 Am. Rep.lSl. 873. Alves v. New York, N. H. 876. ReiUy v. Campbell, 8 C. & H. R. Co., 27 R. I. 581, 65 Atl. C. A. 438, 69 Fed. 990. 261. § 283 Safe Appliances. 597 Machine planer. The mere fact that after an accident it was found that the rear table of a planer was depressed from long use and the person injm'ed had operated the machine for some time, was not sufficient to establish negligence on the part of the employer in respect to the machine.*" Nut on bolt dropping off. Where the nut on a bolt had frequently to the knowledge of the employee, dropped out of a machine from being loosened from the nut, it having been tightened on the morning of the accident, it was held in order to charge the master with Uability, he should have, or be chargeable with, knowledge that the nut had become loose again.*'* Pole, defect in, A superintendent of an electric railway company having knowledge that one of the poles was not set firm enough in the ground and was dangerous, the com- pany could not be heard to claim want of notice on the ground that another superintendent who had taken the place of the former at the time the pole fell did not have notice.*''' Rail, splintered. The rule was applied to a rail claimed to be defective by reason of being worn and splintered, where an employee was injured by such spUntered part catching into his cloth- ing.**" Steam pipe, manner of adjustment. Where a steam pipe had been improperly screwed into the cylinder and it had served its purpose for many 877. Wyman v. Clark, 180 880. Pittsburg, C. & St. L. R. Mass. 173, 62 N. E. 245. Co. v. Adams, 105 Ind. 151, 5 N. E. 878. LouglOiii V. Brassil, 187 187; Doyle v. St. Paul, M. &M. R. N. Y. 128, 79 N. E. 854. Co., 42 Minn. 79, 43 N. W. 787. See 879. Bland v. Shreveport Belt however Paine v. Eastern R. R. Co., 48 La. Ann. 1057, 20 So. Co., 91 Wis. 340, 64 N. W. 1005. 284, 36 L. R. A. 114. 598 Master and Sebvant. §§284-286 months, but in the attempt to separate the pipe from the cyhnder it gave way causing injury to a workman, it was said the master was not liable, in the absence of his knowl- edge of the defect. There was nothing to suggest to him its existence.*" § 284. Rule in Kentucky. It was held by the Kentucky court, that a master might discharge his duty to keep himself informed as to the condition of his appliances, by reqiiiring the servant in charge, where competent, to ascertain its condition and report it to the master or the superior in charge.**^ Such duty might thus be discharged, so far as affecting the UabUity of the master to the particular servant, but it may be questioned whether his UabUity could thus be excused, so far as it might affect other employees. Some- thing depends upon the riile of feUow-servant in the particular state. § 285. Knowledge or means of knowledge of particular defect. It was held that, although a master is informed of a defect in machinery which he fails to have repaired, and thereafter an employee is injured by reason of a defect therein substantially different, the master cannot be charged with notice, in the absence of proof that he was chargeable with knowledge of the particular defect causing injury.*^' Would he be chargeable with knowledge if in repairing the defect of which he had knowledge, the defect causing injury would have been disclosed? § 286. Defects in original construction. Where the defect is in the original construction of the appUance, notice to the master is unnecessary. In such 881. Hobbs V. Stauer, 62 Wis. Wymond Co., 27 Ky. L. Rep. 198, 108, 22 N. W. 153. 84 S. W. 563. 882. Buey's Adm'x v. Chess & 883. Sohulz v. Rohe, 149 N. Y. 132, 43 N. E. 420. §287 Safe Appliances. 599 case knowledge by the master will be inferred, ^^^ especially where it was constructed by the master.*'^ It is not to be assumed, however, that this ride conflicts with that other rule which relates to a purchase of appli- ances from a reliable manufacturer heretofore stated. It relates more particularly to such appKances as are con- structed by the master or under his direction and super- vision. Like other rules, it is not always appHed, or else exceptions are made. Thus, where a cross arm upon a pole broke under severe strain at a point where there was a knot which was obscured by paint, it having been painted when purchased, and coidd not have been discovered by ordinary care, neghgence on the part of the master did not appear.*^^ Master designing and constructing steam plant. Where the master xmdertakes through his own agents to design, manufacture and install a steam plant, he cannot relieve himself of his duty to use proper care to provide safe appliances by a mere showing that he em- ployed competent engineers to design and set up the apphanees in question or to inspect them after being in place.**' Yet where the materials are purchased from a reliable dealer, which enter into the construction, the same rule apphes to defects therein as to a completed article so pur- chased.*** § 287. Defective appliance not in itself dangerous. The mere use by a master of defective apphanees not in themselves dangerous, is not neghgence, so long as 884. Finnerty v. Burnliam, 205 886. Maryland Tel. & Tel. Pa. St. 305, 54 Atl. 996; Stine v. Co. v. aoman, 97 Md. 620, 55 Atl. Morgan Smith Co., 219 Pa. St. 145, 681. 67 Atl. 990. 887. Eriekson v. American Steel 885. Consolidated Stone Co. v. & Wire Co., 193 Mass. 119, 78 N. E. Morgan, 160 Ind. 241, 66 N. E. 761. 696; King v. King, 79 Kan. 584, 888. See oases under Inspec- 100 Pac. 503. tion, § 243. 600 Master and Seevant. § 288 other safe agencies are employed to supply its deficien- cies.**' § 288. Danger unknown and not reasonably anticipated. A master is not liable to his servants for injuries caused by known defects, unless they are such as by the exercise of reasonable skill he naight have known to be dangerous. An accident that cannot be reasonably anticipated by either of the parties when it occurs without fault of the person charged with it, is not actionable.*'" It has been said that where an event follows a cause in natural sequence, not always but in accord with natural laws, then it is a contingency which a prudent person would expect; and a failure to reasonably estimate and guard against the probability of its occurrence imputes negligence; but the foreseeing of harm as remotely and sUghtly probable does not involve the imputation of such harm, for there is nothing that we can do that may not remotely produce some harm.*" One is bound to anticipate and provide against what usually happens and what is likely to happen, but not against what is unusual and unlikely to happen, or what is remotely or slightly probable,*'^ Defect must be suggestive of danger. The fact that the master furnishes a tool or appliance which is defective will not justify a conclusion of failure to exercise reasonable care unless the defect was of such a character as to suggest to an ordinarily prudent person 889. Carlson v. Weyerhaeuser Utica, M. & M. R. Co., 14 C. C. A. Timber Co., 50 Wash. 490, 97 Pac. 492, 67 Fed. 507. 501. 891. P. H. & F. M. Roots Co. 890. Trinity County Lumber v. Meeker, 165 Ind. 132, 73 N. E. Co. V. Denham, 85 Tex. 56, 19 S. 253. W. 1012; Bibby v. Wausau Lum- 892. Stone v. Boston & A. R. berCo., SOWis. 367, 50N.W. 337; Co., 171 Mass. 536, 51 N. E. 1, Doyle V. St. Paul, M. & M. R. Co., 41 L. R. A. 794. Only such as can 42Mimi.'79, 43N. W.787;McNally be foreseen by the exercise of rea- V. Savannah, F. & W. R. Co., 86 sonable care. Cowett v. American Ga. 262, 12 S. E. 351; Finlayson v. Woolen Co., 97 Me. 543, 55 Atl. 494. § 288 Safe Appliances. 601 that there was danger of injury in the use of the tool or appliance or unless prior use in its defective condition had disclosed that it was dangerous, and the master knew or ought to have known that this was the case.*^^ But it is not necessary that the master should have reason to anticipate a particular kind of accident, but the inquiry is, had he reason to expect the occmrence of an accident of any kind affecting the lives and limbs of his servants at that place and because of that defect, or because of the defect in the appUance.*'* Belt, lacing of. The master was not bound to anticipate that the lacing of a belt may pull out, where the lace used was such as ordinarily would be used, and the lacing was done in a skilful manner, in the absence of evidence that belt lacings are liable to pull out.*" Barrel, explosion of. Where a barrel in a manufactory exploded, which an employee was inspecting with a Ughted match to ascertain the number on it, it was held, although the barrel had originally contained oil, alcohol, turpentine, benzine, whiskey and other things, and had been bought of a second hand dealer in barrels, for the purpose of shipping castings, there being no evidence that such barrels were not commonly and ordinarily used for such purpose or that they were in any way unsuitable for such purpose, or that 893. Rogers v. Roe & Conover, fact of the accident, it seems to 74 N. J. L. 615, 66 Atl. 408, 13 L. have been held, was sufficient to R. A. (N. S.) 691. An injury to a charge the company with negligence bridge repairer was occasioned by a and responsibility. Doyle v. Chi- eoupling pin being thrown from a cago, St. P. & K. C. R. Co., 77 passing train, not by any lineman Iowa, 607, 42 N. W. 555, 4 L. R. A. agency, but by some cause not 420. explained. It was presumed it was 894. Louisville & N. R. Co. v. lying on the platform of one of the Kemper, 153 Ind. 618, 53 N. E. cars. The court held that the fact 931; Davis v. Mercer Lumber Co., that the accident was unusual, one 164 Ind. 413, 73 N. E. 899. not reasonably anticipated, would 895. St. Pierre v. Foster, 74 not excuse the defendant. The mere N. H. 4, 64 Atl. 723. 602 Masteb and Servant. § 288 the employer or any one connected with it, knew that they were under any circumstances explosive; that the master was not hable for an injiuy to an employee resulting from such explosion.*'^ Crank slipping off shaft. The shpping off from the shaft, of a crank thereon not required to be securely fastened, was such an improbable danger as the master was not boimd to anticipate.*" Guard, sufficiency of. It was a question for the jury whether the master in the exercise of reasonable care, ought not to have put a higher guard about a hole in the floor of his brewery through which ropes running over a pulley passed, and whether the use of a small rope in place of a larger one was not im- proper, and whether the master might have foreseen that the smaller rope might probably get caught and thus fail to stop the machine, such being one of its purposes.*'* Locomotive, splinter in foot board. An employee upon one engine, while going upon the foot board of another engine to get a bolt from the tool box thereon, was alleged to have been injured by reason of his trousers being caught on a splinter of the toe guard of the foot board, there being a spHt about a half inch in such toe guard. It was held that the question whether the master was neghgent by reason of such defect was for the jury.*'' Machine in a saw mill. The rule was apphed to the condition of a machine or appliance in a saw mill, which was not considered danger- ous, either by the plaintiff or others, by reason of the particular defect.'"" 896. Purdy v. Westinghouse Schulz, 72 Neb. 631, 101 N. W, ■ Elec. & Mfg. Co., 197 Pa. St. 257, 234. 47 Atl. 237, 51 L. R. A. 881, 80 Am. 899. Wolfe v. Minneapolis, St. St. Rep. 816. P. & S. S. M. R. Co., 100 Minn, 897. Standard Oil Co. v. Hel- 306, 111 N. W. 5. miek, 148 Ind. 457, 47 N. E. 14. 900. Trinity County Lumber 898. Fremont Brewing Co. v. Co. v. Denham, 85 Tex. 56, 19 § 289 Sax's Appliances. 603 Machine behaving in unaccountable manner. In order to charge a master with negligence in permit- ting the use by a servant of a particular machine upon proof of its tendency to behave in an unaccountable and dangerous manner, something in the nature of a scienter must be proved or be fairly inferable from the testimony and the history ascribed to the machine must be such as could reasonably be deemed to be either a forerunner or a warning of the accident that actually occurred.'" Rope. Whether an employer ought reasonably to have appre- hended that a rope used temporarily as a pulley might unwind so that its loose ends would extend a distance from the shaft, when revolving, was held a question for the jury. An employee in hanging a belt was injured by his hand being caught in the loose ends of the rope.'"^ Steam chest, grease and dust on. The mere fact that a httle dust and grease appeared on the top of a steam chest of an engine after a run of thirty miles, causing a brakeman's foot to sKp as he was ahghting from the engine, is not sufficient evidence to charge the master with neghgence.'"' Water coolers, potash used to cleanse. Where, by direction of the foreman, potash was put into a water cooler to cleanse it, resulting in injury to an employee in drinking from it, it was held such result was one that should have been anticipated.'"* § 289. Evidence to show notice. Prior accident from same cause. Generally, evidence is admissible showing that the apparatus or appUanee had been the cause of an accident S. W. 1012; Bibby v. Wausau Mich. 494, 116 N. W. 191. Lumber Co., 80 Wis. 367, 50 N. W. 903. HaU v. Iowa Cent. R. Co., 337. Ill Iowa, 523, 82 N. W. 999. 901. Bien v. linger, 64 N. J. L. 904. Geller v. Briscoe Mfg. Co., 596, 46 Atl. 593. 136 Mich. 330, 99 N. W. 281. 902. Trombley v. McAfee, 152 604 Master and Servant. §289 from a similar cause or defect, as tending to show knowl- edge of the defect on the part of the master.""* This proposition is clearly distinguishable from that where it is sought to show a similar accident as proof of the defect itseK. The latter is improper.'"* It was said, however, that proof of a single or defective imperfect operation of machinery or instrumentality re- sulting in injury will not of itself be sufficient evidence or any evidence that the master had previous knowledge or notice of any supposed or alleged defect, imperfections or insufficiency in such apphanee.'" Evidently this was said in reference to a defect only dis- covered at or subsequent to the accident, and is but another way of expressing the familiar doctrine that the mere occurrence of an accident ordinarily is not proof of negligence, confining it to the single question of the master's knowledge. Further illustrations of this rule are given below in the notes.""* 905. Malone v. Hawley, 46 Cal. 409; Salem Stone & Lime Co. v. Griffin, 139 Ind. 141, 38 N. E. 411. 906. Malone v. Hawley, 46 Cal. 409. 907. AtcHson, T. & S. F. R. Co. V. Wagner, 33 Kan. 660, 7 Pac. 204; Skellinger v. Chicago & N. W. R. Co., 61 Iowa, 714, 17 N. W. 151. 908. The rule was applied where a chain attached to a jack screw used for many years as the means of drawing dov/n the springs of lo- comotives, broke by reason of the want of strength to bear the strain, it appearing it had broken before while being similarly used. Krog- stad V. Northern Pac. R. Co., 46 Minn. 18, 48 N. W. 409. It was held that a jury might infer that a coupling was defective where it appeared that it was used on two occasions, working well on the first, but failing to work on the second, although twice tried in a proper manner. Ousley v. Central R. & B. Co., 86 Ga. 538, 12 S. E. 938. The inference is, that such evidence was admissible at least in part, as showing knowledge on the part of the company. A master was charged with negligence in not furnishing a safe place for his employee to work where the alleged defect was in the socket for holding an electric bulb, the brass portion not being insulated and insiilation worn off from the wires. The facts to charge knowledge was that persons had frequently received a shock in transferring the bulb. The usual voltage was not dangerous, only 110, but it was said that by defects that might occur in the transformer a dangerous current §290 Sape Appliances. 605 Proof of no prior accident. Where an employee was injured "while "working in a mine by a piece of loose rock falling upon him, it "was held not competent for the defendant to show that no accident had ever before happened in the mine. That there were too many undetermined elements which might affect the safety of workmen to make the testimony valuable or proper.'"' § 290. Notice presumed from lapse of time. As already stated, notice or knowledge of defects may be presumed from the length of time they have existed."" might be present. Aga v. Harbach, 140 Iowa, 606, 117 N. W. 669. An injury having occurred by the "bucking" of an electric car, caused as was claimed by the worn out condition of one of the electric fields, evidence was admissible to the effect that it had frequently ."bucked" before to the knowledge of those to whom the company had intrusted the duty of seeing to the condition of its cars. Beardsley V. Minneapolis St. R. Co., 54 Minn. 504, 56 N. W. 176. Evidence was admissible that an elevator fitted with an old rope had once parted, and that twice before the elevator had fallen. Bier v. Standard Mfg. Co., 130 Pa. St. 446, 18 Atl. 637. A truck having broken through the floor of a miU, evidence was ad- mitted showing that two days before a truck had broken through and a portion of the plank had been removed, and that it was the same plank that broke the second time at another place. Johnson v. BelMng- ham Bay Imp. Co., 13 Wash. 455, 43 Pac. 370. "WTiere the alleged cause of injury was a defect in the reverse lever upon a locomotive, whereby the motion of the engine was changed, against the wUl of the engineer, evidence was admitted to the effect that the same condi- tion had existed on two other occa- sions. Burlington & M. R. R. Co. V. WaUaee, 28 Neb. 179, 44 N. W. 223. In an action for injuries from a defective machine, it was proper to receive evidence from a former employee that he had been injured by the same defect a short time before plaintiff's injury, and had notified defendants of the fact, as bearing upon the question of notice to the defendant of the defective condition of the machine. Franke v. Hanly, 215 lU. 216, 74 N. E. 130. The abnormal action of a machine alone, however, cannot be the basis of an inference tending to show insufficiency in construction or repair, where such inference is conclusively rebutted by evidence that the machine was free from all discoverable defects. Montange v. Northern Electric Mfg. Co., 127 Wis. 22, 105 N. W. 1043. 909. Burgess v. Davis Sulphur Ore Co., 165 Mass. 71, 42 N. B. 601. 910. Chicago, B. & Q. R. Co. V. Avery, 109 111. 314; Wedgewood 606 Masteb and Seevant. § 290 The defect must have existed long enough that by the exercise of reasonable care the master could have ascer- tained and repaired it. No time being specified, the rule is that of reasonable time."^ To warrant an inference of negUgence on the part of the master, there must be proof of the existence of the defect for some time prior to the accident."^ The rule rests upon the theory that the master was neghgent in not discovering it. The following are illus- trations of the application of the foregoing rule. Appliance for unloading grain. An appUance for unloading grain was out of order and did not work promptly and it appeared the same difficulty had been experienced occasionally some time before. It was held the appKance was defective and the defect had existed for such a length of time as to charge the employer with notice thereof.'^ ^ Boiler. It was a question for the jury upon the evidence, whether the master was neghgent in maintaining in use a boiler after eighteen years prior use, where it exploded, killing the fireman and injuring the plaintiff who was a common laborer assisting the fireman. The boiler was regularly inspected every six months and had been in- spected four or five months immediately preceding the explosion. The evidence was to the effect that the hfe of boilers of such make was from eighteen to twenty-two years. The evidence was conflicting as to the cause of the explosion.^'* V. Chicago & N. W. R. Co., 44 Wis. 912. Mensch v. Pennsylvania 44; Wedgewood v. Chicago & N. R. Co., 150 Pa. St. 598, 25 Atl. 31, W. R. Co. 41 Wis. 478. 17 L. R. A. 450. 911. Goodrich v. Kansas City, 913. Radmann v. Chicago, M. C. & S. R. Co., 152 Mo. 222, 53 & St. P. R. Co., 78 Wis. 22, 47 N. S. W. 917; Meyer's Sons v. Falk, W. 97. 99 Va. 385, 38 S. E. 178; Missouri 914. Lehigh Valley R. Co. v. Pac. R. Co. V. Dorr, 73 Kan. 486, Kiszel, 25 C. C. A. 566, 80 Fed. 470. 85 Pac. 533. § 290 Safe Appliances. 607 Brake. It appearing that a brake was out of order at the time of an accident, and that a brakeman was thereby unable to control the car, it was said it is not enough to show that the defect existed at the time of the moment of the acci- dent. It must also appear that the master had an oppor- tunity of previous knowledge or that the facts were such that he ought to have known of the defect."^ Brake staff. A railroad company was chargeable with knowledge of the defect in a brake staff. Absence of the nut which held the wheel on the staff, where the rusted appearance of the thread on the end of the staff indicated it had been off for several weeks, even though it appeared the car had been inspected immediately prior to the wheel coming off."' Bucket used for hoisting coal. One of the grounds of negUgence charged was that the bucket used in hoisting coal was defective, and the only evidence of a defect was the fact that it failed to right and latch itself automatically on the two prior trips to the one in question; that the hoister succeeded in causing it to latch by the use of levers on these two trips, and on the third he concluded it would clear the coal and he brought it back unlatched, striking the coal, causing it to fall upon the plaintiff, and after this it latched itself auto- matically for an hour and a half. It was said if there was any negligence it was that of the hoister, a feUow-servant. The employer was not chargeable with constructive notice of the defect, if any; the time being too short."' 915. Mixter v. Imperial Coal 917. Prybilski v. Northwestern Co., 162 Pa. St. 395, 26 Atl. 687. Coal R. Co., 98 Wis. 413, 74 N. W. 916. Chicago & E. I. R. Co. v. 117. Kneirim, 152 lU. 458, 39 N. E. 324, 43 Am. St. Rep. 269. 608 Mastee and Servant. § 290 Chain. Negligence of the master was shown relative to the breaking of a hnk in a five-eighths chain, used to lift a mold cover weighing seven tons, by evidence that the chain had been used for eight years, that the life of such a chain was four or five years, that it had become weakened by long usage, some of the Knks being worn a quarter off, and that the master had notice of its imperfect and unsafe condition.'^* It being conceded that the evidence warranted a finding that the fall of an elevator was due to a defective cable and safety device, it was held not a defen?e that the master did not have notice thereof, where it was found or appeared that the defect had existed long enough to charge the defendant with knowledge thereof and an opporturdty to repair."^ The negligence of the master was sufficiently shown to justify a verdict of the jury that the chain used upon a dust hoister was defective and that the master was charged with knowledge therewith, such chain being three-eighths of an inch in diameter, and it having broken a short time previous, and the link broken being half worn through and at a place observable by a person in charge of the work.^20 Coupling device. Although the rules require notice of defects in cars to be given to certain officials named therein, and the notice in question was given to a car repairer, it appearing that the particular defect in the automatic coupling device had existed for two weeks, yet the company could not resist habiUty on the ground of the notice not being in coniornaity to its rules, as it owed a duty of inspection and repair, which evidently had not been performed.' ^^ 918. Homflus v. Chambersburg 920. Jones v. Herriok, 141 Iowa, Engineering Co., 196 Pa. St. 47, 615, 118 N. W. 144. 46Atl. 259. 921. CHcago & A. R. Co. v. 919. O'Connor v. GiUaspy, 170 Walters, 217 111. 87, 75 N. E. 441. Ind. 428, 83 N. E. 738. § 290 Sape Appliances. 609 Elevator. Knowledge of the defective condition of an appliance (elevator) may be shown by proving actual knowledge on the part of the master, or by showing that it had been out of condition for such a length of time that the law woxild presume knowledge on his part. Rule appUed where ele- vator had been continuously defective for six months.'^^ Injiuy having been caused an elevator operator by the fall of a weight due to the rope holding it being rotten and breaking, and where certain blocks which would, if in place, have prevented the accident, had not been in place for several months, the question of the master's neg- ligence was for the jury.'^' Engine, broken step. A brakeman having fallen under the wheels of the engine from the step in front being broken, it having been out of repair for some time, the question of defend- ant's negligence was for the jury."''^ Floor, rotten. A railroad company was chargeable with knowledge of a hole in the floor of a car into which an employee stepped where it appeared that the wood about the hole was rotten.8 26 Handhold. Where it appeared the car was an old one, and that the nut was gone from the bolt which secured the hand hold, and the end of the bolt was rusted over, thepe condi- tions presented a question bearing on the length of time the defect existed.^ ^^ 922. Meyer's Sons v. Falk, 99 925. King v. Chicago & N. W. Va. 385, 38 S. E. 178. R. Co., 108 Iowa, 748, 78 N. W. 923. MeGuigan v. Beatty, 186 837. Pa. St. 329, 40 Atl. 490. 926. Louisville & N. R. Co. v. 924. Choctaw, O. & G. R. Co. v. Pearson, 97 Ala. 211, 12 So. 176. Tennessee. 63 C. C. A. 497, 116 Fed. 23. M. & S. 39 1 M. & S.— 39 610 Masteb and Sebvant. § 290 Handle on ladder. And where there was an absence of a handle on the top of a ladder, it having been broken off, and its appearance indicated an old break, the master was chargeable with knowledge.'" Hook. It was said with, reference to a hook used to lower cot- ton into a vessel, it was clear that the defect might of itself have indicated that the master should have known of it. Its patent and obvious character and the apparent age of the defect might so indicate.'''' Insulation of wires, absence of. Absence of insulation on an electric Kght wire was held to be prima facie evidence of negligence. The company will be presumed to have known of abrasion of such insulation where shown to have existed for two years.' ^' Jaw strap, absence of. Where the employee was injured in an attempt to mount a car by putting his foot into the jaw strap, and it appeared that the jaw strap was only intended to strengthen the car and that it was missing and had been for some time, and the company had notice that em- ployees were in the habit of using such jaw strap in mounting coal cars, it was held a proper question for the jury whether they ought not to have anticipated that employees would rely upon jaw straps being present in performing their duties.'^" Lamp, rusty rods. It was negUgenee on the part of the receiver of an electric Ught company to permit rods supporting a lamp 927. Riohmond & D. R. Co. v. trie Co., 129 N. C. 166, 39 S. E. Moore's Adm'r, 78 Va. 93. 801, 55 L. R. A. 398, 85 Am. St. 928. Ocean Steamship Co. v. Rep. 735. Matthews, 86 Ga. 418, 12 S. E. 930. Coates v. Boston & M. R. 632. Co., 153 Mass. 297, 26 N. E. 864, 929. MiteheU v. Raleigh Elec- 10 L. R. A. 769. § 290 Safe Appliakces. 611 to become rusted so that it broke wMle a triminer was caring for the lamp.'" Locomotive wheel. Where a locomotive wheel was defective and the defect had existed for a considerable time and was open to obser- vation, it was held that such conditions tended to support an allegation of defendant's knowledge of the defect.''^ Nut on machine, absence of. Where there was an absence of a nut which held certain maehiaery in place, and it appeared that the nut had been missing for two weeks, this. was sufficient to charge the master with notice of the defect.''^ Truck. It is evidence that a huge truck for moving railroad engine in a repair shop was defective, where one of the wheels broke and the break only disclosed soimdness,it appearing that the truck had been in use for fifteen years, that the effect of roUing such a truck on an iron rail is to flatten the wheels, that the tendency of constant use of iron is to weaken it, that using it for heavy weights would weaken it quickly, and it would fiu'ther appear from excluded evidence that the engine loaded upon it at the time was more than twice as heavy as those in use when the trucks were purchased.' ^^ § 291. Failure to discover what would have been dis- covered in exercise of reasonable care. A more complete array of cases bearing upon this par- ticular branch of the subject wiU be found imder the head of Inspection. The foundation of the rule which thus charges the master with knowledge, is, that he will be held to know, that which in the exercise of ordinary or 931. Dupree v. Tamborilla, 27 Co. v. Erling, 148 lU. 521, 36 N. E. Tex. Civ. App. 603, 66 S. W. 595. 117, 39 Am. St. Rep. 187. 932. Bridges v. St. Louis, I. M. 934. Gunn v New York, N. H. & S. R. Co., 6 Mo. App. 389. & H. R. Co., 171 Mass. 417, 50 933. Monmouth Min. & Mfg. N. E. 1031. 612 Masteb and Seevant. § 291 reasonable care in the performance of Ms duty he should or would have known. It was said the master being under the duty not only to furnish safe and suitable implements to his employees, but to keep them in that condition, so far as that may be done by the exercise of reasonable care, is boimd to know the condition of his property so far as proper inspection will enable him to know it; and where it is proved that there was a defect and that the defect was obvious and on its face showed it had existed long enough before the injury to have been discovered by the master in the exercise of ordinary diligence, it is at once apparent, if the master did not know of it, he might have known, and that he failed in his duty to inspect and know.'" However, this doctrine is not of universal application as in some of the states the courts do not hold that the duty of inspection is personal to the master. That his duty in this respect is performed by the selection of competent servants, and their omission or neglect of duty is that of feUow-servants of the employees who use the appliance. Where such rule prevails it cannot be said that defects within the knowledge of such inspectors, not communi- cated to the master, are chargeable to him. The master is presimied to know what by the exercise of careful and vigilant inspection might have been ascertained.^'^ What constitutes the exercise of reasonable care is illustrated by the decisions in the note below.''' 935. Ocean Steamship Co. v. take the question of the perform- Matthews, 86 Ga. 418, 12 S. B. 632. anoe of the master's duty of in- 936. Curtis v. Chicago & N. W. spection and repair to the jury. R. Co., 95 Wis. 460, 70 N. W. 665. Paine v. Eastern R. Co., 91 Wis. 937. Where the defect con- 340, 64 N. W. 1005. The evidence sisted ia the blocking in a frog, in this case, from, which it appeared which had become worn from, use, among other things, that after an it was said, that proof of actual explosion of a boiler, there were notice of the condition of the block- conditions about the parts, that ing was not required. That the indicated it was badly out of re- company owed a duty of careful pair and unsafe, was sufficient to and vigilant inspection to discover show that fact, and also to show defects. That showing the condi- that the engine was negligently tion of the blockii^ and that it was managed and eared for. Illinois caused by wear was sufficient to Cent. R. Co. v. Behrens, 208 lU. §290 Saj'e Appliances. 613 20, 69 N. E. 796. The evidence, although conflicting, was sufficient to sustain a finding by the jury- that the boiler of an engine which exploded was defective when turned over to the engineer and fireman, and that the company was negli- gent in not having repaired the same. The particular question was whether the accident was caused by the defective condition of the boiler or by the neglect of the engineer in permitting the water to get low therein. Strand v. Great Northern R. Co., 101 Minn. 85, 111 N. W. 958, 112 N. W. 987. Whether the displacement of a, bolt, upon a brake beam of a car was a defect, as well as whether, in view of the condition of the beam, notice of the defect, if such, it being obvious and patent, was charge- able to the master, were questions for the jury. Wedgewood v. Chica- go & N. W. R. Co., 44 Wis. 44; Wedgewood v. Chicago & N. W. R. Co., 41 Wis. 478. Where, after an accident caused by the breaking of a brake rod, it was discovered that there existed an old crack or flaw, which weakened it, and the evidence on the part of the com- pany was to the effect that suci defect was not discovered upon the application of practical tests, which had been systematically made, the company was not chargeable with knowledge of the defect. Smith v. Chicago, M. & St. P. R .Co., 42 Wis. 520. Where the defect in a brake rod consisting of a crack or flaw more than half way through, which was apparent upon examina- tion of the broken end, a finding that the defect could have been discovered by a proper and ordi- nary inspection, was sustained, and hence the company was charged with knowledge. Cowan v. Chicago, M. & St. P. R. Co., 80 Wis. 284, 50 N. W. 180. Where the defect in a brake rod was an old crack or flaw at the point of breaking, but this point was so located that it could not be detected without tak- ing out the rod pin and elevating the rod several inches, it appearing, however, that the car was old, paint thereon faded, timbers and floors cracked and worn, and also the siding badly worn, it was held the question of the master's negli- gence in putting this car in the train was for the jury. Campbell V. LouisviUe & N. R. Co., 109 Ala. 520, 19 So. 975. It was claimed that a handhold on a ear gave way from being loosely fastened. The handhold after the accident was found to be detached at one end, the screw which held it being loose from the wire and the wood. It was said the screw may have suddenly puUed out of the wood by reason of the sUght decay around it. But this is speculative merely. If it had been shown that the rod was loose or out of order, so decayed at the place of fastening as to render it unsafe, and this was discoverable by ordinary inspection, it would be a matter for the jury to determine whether the defect was known or by the exercise of ordinary care ought to have been known by the defendant in time to remedy or call attention of employees to it, before the occurrence of the casualty. A demurrer to the evidence was sustained. Carruthers v. Chicago, R. I. & P. R. Co., 55 Kan. 600, 40 Pac. 915. A jailroad company was chargeable with knowledge of the defect in a hand hold on a car 614 Masteb and Servant. §291 where it was bent, its condition being obvious upon the most casual inspection. Settle v. St. Louis & S. F. R. Co., 127 Mo. 336, 30 S. W. 125, 48 Am. St. Eep. 633. The defect in a ladder on a car, though not visible, but which could have been ascertained upon a proper inspection, knowledge there- of was chargeable to the master. Toledo, W. & W. I. R. Co. v. Ingra- ham, 77 lU. 309. In a subsequent case it was held the company was not chargeable with knowledge, there being no evidence from which it could be inferred the company knew or had reason to know the ladder was defective. Chicago & A. R. Co. V. Piatt, 89 111. 141. It was held the railroad company might have known by the exercise of reasonable diligence the charac- ter of the coal which it supplied for use upon an engine. By reason of its inferior quality flames burst out of the door injuring the fireman. Missouri, K. & T. R. Co. v. Walker, 26 S. W. (Tex. Civ. App.) 513. It appearing that the safety attach- ments of an elevator had been imperfectly repaired after having been broken, and was out of repair in other respects, the spring and clutches being rusty and not in working order, the master was chargeable with negligence in main- taining it in such condition. IQei- baz V. Middleton Paper Co., 180 Mass. 363, 62 N. E. 371. See also Droney v. Doherty, 186 Mass. 206, 71 N. B. 547. It appearing that defects in a running board upon an engine had been repaired the day before an accident to the fireman while using it, there being evidence it was out of repair prior thereto, and subsequent examination show- ing a defect, the question of the mas- ter's negligence was held one for the jury. Ellington v. Great Northern R. Co., 92 Minn. 470, 100 N. W. 218. The shoulder of the frame upon which rested an iron grating being so worn as to permit the grating to tip when stepped upon and accidents had happened from this cause, the master was charge- able with knowledge of the defect. McFarland v. The J. C. Tuthill, 37 Fed. 714. It appearing there was an old crack in the cyhnder of an engine which burst, and a witness having testified that he had not observed it was cracked, but had noticed there was a click of the piston several times and had called the attention of one presimiedly (but the case does not disclose) with authority and stated there was something wrong with the cylinder, these facts tended to show that the company ought to have known of the actual defect. Howard Oil Co. V. Davis, 76 Tex. 630, 13 S. W. 665. Where a pile driver was so defectively constructed that the wire rope for lifting the hammer would drop out of the pulley over which it should run, whereby it became ragged and, catching the mitten of an employee, drew his hand under the pulley, the appar- atus being new and the defect par- tially remedied the first day of its use, it was a question for the jury whether the master ought not to have discovered that the wire rope had thus become broken and was dangerous. Steen v. St. Paul & D. R. Co., 37 Minn. 310, 34 N. W. 113. The master was held liable for the defect in a pilot bar, it being bent so as to render it difficult to make a coupling, where the evi- §290 Sapb Appliances. 615 deuce was that it was diily in- spected and in perfect condition when the train started and was only found defective at the time of the accident. Kansas City, P. & G. R. Co. V. Spelhnan, 42 C. C. A. 321, 102 Fed. 251. The question of the master's knowledge of the insufficiency and defectiveness of a rope furnished for the purpose of hoisting a pump over a wharf and on the deck of a lighter, was held a question for the jury. Carter v. Boston Towboat Co., 185 Mass. 496, 70 N. E. 933. The defect in the construction of a step ladder as claimed, was that the nails were too small. It was said, having manu- factured the ladder, the master was chargeable with such knowledge of its defects as ordinary care during such manufacture would have dis- covered. It was a question for the jury. Standard Oil Co. v. Bowker, 141 Ind. 12, 40 N. E. 128. The appearance of a water valve, which burst, did not indicate to one with- out special knowledge, that the valve was defective, and there was no evidence that the defendant had special knowledge or evidence inconsistent with the supposition that the valve had been properly tested before defendant accepted it. The burden being upon the plaintiff to show that defendant knew or by proper care might have known that the valve was unsafe, a nonsuit was proper. Deane v. Roaring Fork E. L. & P. Co., 5 Colo. App. 521, 39 Pac. 346. 616 Masteb and Seevant. CHAPTER IV, INSTRUCTING AND WARNING SERVANT. Seo. 292. General rule. 293. Duty as delegable. 294. Transitory risks. 295. As to effect of negligence. 296. Danger not reasonably antici- pated. 297. Dangers resulting from negli- gence of fellow-servant. 298. Where changes made increas- ing th« hazard. 299. Dangers from work outside scope of employment. Voluntarily attempting to repair machinery. Voluntarily per forming work of another. 299a.Obvious risks and dangers. 299b. Latent and extraordinary risks or dangers. Dangers arising from ex- traneous causes. 300. Experienced servants. 301. Inexperienced servants. Presimiption of qualifica- tion of servant seeking employment. Where servant holds him- self out as competent though stating his inex- perience. Servant transferred to other work. 302. Knowledge of master of defect or danger. When knowledge of danger chargeable to master. 303. Knowledge of master of in- capacity or inexperience of servant. Seo. 304. Knowledge of servant of dan- ger. Source of knowledge. 305. Particularly hazardous agen- cies. 306. Promise to warn. 307. Proximate cause. 308. Presumption as to warning having been given. 309. Sufficiency of instructions or warning. Simply warning of danger' may not be sufficient. Instructor must be compe- tent. Where servant a minor. 310. Duty to warn infants. Pennsylvania rule as to servant under or over fourteen. When age and size notice to master. Age alone does not deter- mine as matter of law. Presumption as to minor. Presumption as to expe- rienced servant. Servant's knowledge of dan- ger. Obvious danger. Kjiowledge of master of need of instruction. Presumption that father had given instructions. When q.iestion for coiu-t. Question what minor ought to have known, not what in fact he comprehended. Requisites of complaint. §292 Insteucting and Warning Sbkvant. 617 Distinction between liabil- ity of hands being caught in machine and result if caught. Effect of statutes. Biu-den of showing infant fitted for work. General considerations and scope of treatment of decisions. Twelve years. Thirteen years. Fourteen years. Fifteen years. Sixteen years. Seventeen years. Sec. Eighteen years. Nineteen years. Twenty yeajs. SlOa.Duty as applicable to particu- lar acts, appliances or employees. Approach of trains or cars. Crevices in banks, mines, quarries, walls, etc. Falling of bank of earth or other matter. Blasting. Instruction to sectionmen. Brakemen. Exposed cogs and gearing. Set screws. § 292. General rules. The master having performed his duty in furnishing reasonably safe apphances for use by the servants, and competent employees to operate them, and a safe place to work, may yet be under fm-ther obhgation to his servants. While an employee assumes all the ordinary risks and hazards incident to the employment, of which he is possessed of sufficient intelligence and capacity to know and understand, and an adult person is presumed to be of sufficient mental power to comprehend such risks; yet if a person is employed for a work which is danger- ous, or to labor in a dangerous place or situation, and by reason of youth, inexperience, ignorance or want of mental capacity, he may faU or fails to comprehend the dangers, it is the duty of the employer to warn the employee of the hazards and instruct him in the work.^ 1. Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, 80 N. W. 276; German American Lumber Co. v. Brook, 65 Fla. 577, 46 So. 740. Warning having been customarily given of the faU of a rope when changes were made in a hoisting apparatus, to a shoveler working in the hold of a vessel from which coal was being unloaded, the omission to give it in the particu- lar instance, whereby such employee was injured, was held to be negU- gence, chargeable to the master, as the latter had not by rule or otherwise made any provision for warning. Had it provided for a competent employee to give warn- 618 Masteb and Seevant. § 292 In considering tte question as to the duty of the master to instruct or warn his servant, it is necessary to take into consideration (1) whether the danger or risk is obvious or is latent; (2) whether the servant is experienced or is inexperienced or of immature years; (3) whether the mas- ter knew or should have known of the danger; and (4) whether the servant knew or should have known of the danger. If the master knew or should have known of the danger, and it is not obvious to the servant who is ignorant thereof, the master must warn or instruct his servant in regard thereto; and where the servant is inexperienced or of immature years it may be necessary to warn him even as to obvious defects or dangers. This general rule, stated in one form or another, is set forth in many decisions. ^ If there are dangers latent or not exposed and of which the master has knowledge, and the servant has not, either actual or presumed, they must be made known to the serv- ant. If there are dangers which are obvious, yet not so much so that they can be seen by the exercise of ordinary care on the part of the servant and appreciated, the duty of the master, if they are not understood by the servant or not likely to be known by him, is to make them known to the servant. In subsequent pages the question of obvi- ous risks and known risks is considered, and the extent to which they are and have been assumed by servants in. the absence of warning or instruction. The rule more gener- ally appUes to risks not obvious or known, or where there is an incapacity, whether from youth, inexperience or ignorance, to comprehend. ing to other employees, it woxjld 432; Stucke v. Orleans R. Co., 50 not be liable for the negligent La. Ann. 172, 23 So. 342; Evans faUiire of such employee to give the Laundry Co. v. Crawford, 67 notice or warning. Gierczak v. Neb. 153, 93 N. W. 177, 94 N. W. Northwestern Fuel Co., 142 Wis. 814; Hough v. Grants Pass Power 207, 125 N. W. 436. Co., 41 Oreg. 531, 69 Pao. 655; 2. LouisviUe, N. A. & C. R. Co. Galveston, H. & S. A. R. Co. v. V. Wright, 115 Ind. 378, 16 N. B. Manns, 37 Tex. Civ. App. 356, 84 S. 145, 17 N. E. 584, 7 Am. St. Rep. W. 254. § 293 Insteucting and Waening Sebvant. 619 § 293. Duty as delegable. It will be found that as to the question of the duty to give warning or instruction to servants, whether personal to the master or such as he can delegate to others, and thus be relieved from responsibility in case of omission or neg- ligent performance, the coiu'ts are not entirely in harmony, and this applies as well to courts which have adopted the same rule as to who are, or what are or what may consti- tute, fellow-servants, as well as those which differ in this respect. The nature of the warning required also has an important bearing; the duty of giving warning signals not always or ordinarily being characterized as in the same scope as warning of dangers from the use of apphances or incident to a place of work. This question will neces- sarily be considered in the chapters on feUow-servants in determining whether an employee upon whom the duty to instruct or warn is imposed is a feUow-servant of the injured servant. The general rule, however, is that the duty to instruct and warn, where required, is personal to the master and cannot be delegated to another servant so as to reUeve the master from Uabihty. ' 3. Camp V. HaU, 39 Fla. 635, & W. R. Co., 53 C. C. A. 207, 115 22 So. 792; CoffeyviUe Vitrified Fed. 475 ; Olson v. Hanford Produce Brick & Tile Co. v. Shanks, 69 Co., Ill Iowa, 347, 82 N. W. 903; Kan. 306, 76 Pac. 856; Wheeler v. McDonald v. Champion Iron & Wason Mfg. Co., 135 Mass. 294; Steel Co., 140 Mich. 401, 103 N. W. Gussart v. Greenleaf Stone Co., 829. Where, in the discharge of 134 Wis. 418, 114 N. W. 799; the master's duty, a warning is Rogers v. Cleveland, C. C. & St. necessary to protect workmen while L. R. Co., 211 111. 126, 71 N. E. engrossed in their duties, such duty 850, 103 Am. St. Rep. 185; Lebber- is not performed merely by the ing V. Struthers, 157 Pa. St. 312, employment of a competent person 27 Atl. 720; Smith v. Hillside Coal to give it. It must in fact be given. & Iron Co., 186 Pa. St. 28, 40 Atl. It was held the master's duty to 287; Addieks v. Chxistoph, 62 N. J. workmen engaged in mining shale L. 786, 43 Atl. 196, 72 Am. St. in a pit, to warn them in time to Rep. 685; Smith v. Oxford Iron escape injury of the dislodgment Co., 42 N. J. L. 467, 36 Am. Rep. of massive fragments from above. 535: Gagnon v. IQander Weldon CoffeyviUe Vitrified Brick & Tile Dyeing Mach. Co., 174 Fed. 477; Co. v. Shanks, 69 Kan. 306, 76 Mercantile Trust Co. v. Pittsburgh Pao. 856. 620 Masteb and Sebvaij-t. §293 However, wliere there is delegated to one servant, who is not a vice principal by virtue of his rank, the duty to instruct and warn as to the details of the work, as pre- scribed by the rules of the master, he is generally held a fellow-servant of one injured by his negligence in regard thereto,* and hence to that extent the duty may be said to be delegable.^ What the precise rule is in any particular jurisdiction, and its application there, can only be determined by a reference to decided cases, governed largely by the law of feUow-servants prevailing therein. In some jurisdic- tions, it is held that if reasonable care requires that a co-employee be required to give warning, it would be necessary for the master to provide one; but if he properly 4. See chapter on fellow-serv- ants. 5. Negligence was ctaxged in that it was a duty personal to the master to see that a brakeman occu- pied his position on the rear end of ears which were being shunted in a yard. He failed to occupy such position and as a consequence an employee upon the track was injured. It was said that the master's duty was fuUy discharged when he had provided a competent employee to perform the duties incident to that position. "It is quite obvious," say the court, "that the work of shifting cars in a rail- road yard must be left in a great measure to the judgment and discretion of the servants of the railroad who are intrusted with the management of the yard. The details must be left to them and aU that the company can do for the protection of its employees, is to provide competent co-servants and prescribe such regulations as expe- rience shows may be best calculated to seciure their safety." Potter v. New York Cent. & H. R. R. Co., 136 N. Y. 77, 32 N. E. 603. The court also say: "If the case of Murphy v. Raih-oad Co., 118 N. Y. 527, 28 N. B. 812, can be construed as holding an adverse view, we think it is opposed to the principle of former decisions." The United States Supreme court concur with the New York court in its deter- mination and reasoning. Central R. Co. V. Keegan, 160 U. S. 259. 40 L. Ed. 418, 16 Sup. Ct. Rep, 269. See also Rose v. B. & A. R. Co.,58N.Y. 217. The mere failure of one employee, where such is his duty, to inform another that a blast is on, which creates the only danger in working upon a fmnace door, is that of fellow-servant. Dahlke v. Illinois Steel Co., 100 Wis. 431, 76 N. W. 362. So is the failure of one operating a crane whose duty it is to keep watch and to call out and warn any one who might be in the way. Ferry v. American Suction Gas Producer Co., 153 Mich. 266, 116 N. W. 1073. I 293 Instructing and Wabning Sbevant. 621 selected and instructed a competent person for that pur- pose, lie would be no more responsible for a failure of that ■warning through neghgenee of such servant, than he would for the results of the neghgenee in performance of any other duty by a co-employee.* This rule is not approved by some courts. It was held that notwithstanding the master had delegated the duty of warning an employee, when a stone was being hoisted and swinging in a quarry, he was responsible for the im- proper performance thereof;' that where explosions in a mine are expected, it is a duty personal to the master to warn employees therein so that they may seek a place of safety;* and that it was the personal duty of the master to warn an inexperienced servant set to work in driUing out a hole in which there was an unexploded blast, in respect to the dangers.^ 6. Portance v. LeMgh Valley Coal Co., 101 Wis. 574, 77 N. W. 875, 70 Am. St. Rep. 932. See also Potter V. New York Cent. & H. R. R. Co., 136 N. Y. 77, 32 N. E. 603; Central R. Co. v. Keegan, 160 U. S. 259, 40 L. Ed. 418, 16 Sup. Ct. Rep. 269. An employer of work- men engaged in digging a trench in a street for a gas main was not liable for the neglect of the foreman to give warning of the liabiUty of a street car to approach or for failure to station a watchman to give warning of their approach. Such a foreman in respect to such matter is the fellow-servant of the w(»kmen. Gereg v. Milwaukee Gas Light Co., 128 Wis. 35, 107 N. W. 289, 7 L. R. A. (N. S.) 367. Where an employee engaged with others in loading timbers from a wharf into a vessel, was injured, by a piece of timber passing down the chute prepared to carry it, and it appeared a competent person was employed to give warning to the men in the hold of the vessel when a piece of timber was placed in the chute, who customarily gave warn- ing, but omitted to so warn on the occasion in question, it was held that the master's duty in respect to furnishing a safe place to work did not extend beyond the employ- ment of a competent person to give the necessary warning. It did not extend to the actual giving of the warning in each particular place. Hermann v. Fort Blakeley MiU Co., 71 Fed. 853. 7. Morena v. Winston, 194 Mass. 378, 80 N. E. 473. 8. Hendrickson v. U. S. Gjrp- sum Co., 133 Iowa, 89, 110 N. W. 322, 9 L. R. A. (N. S.) 555; BeUe- viUe Stone Co. v. Mooney, 61 N. J. L. 253, 39 Atl. 764, 39 L. R. A. 834; Jacobson v. Hobart Iron Co., 103 Minn. 319, 114 N. W. 951. 9. Peters v. George, 83 C. C. A. 408, 154 Fed. 634; Burrows v. Ozark White Lime Co., 82 Ark. 343, 101 S. W. 744; Shannon v. 622 Master and Sekvant. § 294 It was held elsewhere, however, that it is not the personal duty of the master to give warning of danger to persons employed in the business of blasting, but that it is a service he may properly delegate and the one to whom delegated is a fellow-servant of the employees in the quarry.^" And in Wisconsin it was held that if a master has proj)- erly selected and instructed a competent man to give warn- ing to his other employees of the movement of machinery involving danger to them, such as an apparatus for un- loading coal from a vessel, he wiU not be responsible for an injury to one of said employees caused by a neghgent failure of such man to give the warning;" but that if the master failed to make such arrangement for warning he is not excused, although the foreman, in the absence of such an airangement, had, so far as the plaintiff knew, always given warning, but failed to do so on the particular occa- sion of the plaintiff's injury. ^^ § 294. Transitory risks. The duty of warning is not extended to every transitory risk,!' as where the only thing the employee does not know is the precise time when the danger may exist. ^^ Consolidated Tiger & Poonnan 11. Portanee v. Lehigh Valley Min. Co., 24 Wash. 119, 64 Pac. Coal Co., 101 Wis. 674, 77 N. W. 169. The last case, however, is 875, 70 Am. St. Rep. 932. ■within the rule of instruction to an 12. Gierczak v. Northwestern inexperienced servant. The pre- Fuel Co., 142 Wis. 207, 125 N. W. ceding eases evidently were decided 436. upon the ground of the master's 13. Knight v. Overman Wheel duty to furnish a safe place to work. Co., 174 Mass. 455, 54 N. E. 890. In fact such construction would 14. McCann v. Kennedy, 167 include most cases where warning is Mass. 23, 44 N. E. 1055, in which required, as the place is unsafe un- case, in making repairs upon a less warning is actually given. It house, the floor joists were sawed would apply to shunting cars nearly through for a well hole, and which the courts have quite gen- before the pieces in the ordinary erally held does not involve per- coiu-se could be removed, a work- sonal warning, guarding hatchways man stepped upon the joists and and the like. received injury, and it was held that 10. Donovan v. Ferris, 128 danger in such case was only Cal. 48, 60 Pae. 519, 79 Am. St. momentary. Rep. 25. §§ 295, 296 Instbucting and Waening Sebvant. 623 Nor does the duty to warn extend to changing con- ditions, as a work, such as the construction or tearing down of a building, progresses. Such conditions are among the ordinary risks which the employee assumes." So where a trap door was open out of working hours, it being necessary to open the same at intervals to permit access to apphances below the floor, it was held the master's duty did not extend to giving notice to his work- men who were familiar with its use and location." And where a carpenter employed in repairing an ele- vator shaft, requested the operator to give him notice of the starting of the elevator, and he rehed upon the oper- ator doing so, there is no hability on the part of the master for failure to give him the warning." § 295. As to effect of negligence. It seems that it is not the duty of a master to warn a competent servant of possible or probable dangers in case he is neghgent.^^ § 296. Danger not reasonably anticipated. The master is under no duty to warn or instruct his servant as to a danger which could not reasonably be anticipated." 15. Beique v. Hosmer, 169 enough to entitle the plaintiff to Mass. 541, 48 N. E. 338; Johnson recover to show that his injury V. H. P. Cummings Const. Co., was in fact the natural conse- 201 Mass. 477, 87 N. E. 894. quenoes of the act or omission of 16. Young V. Miller, 167 Mass. the defendant, but it must appear 224, 45 N. E. 628. that under all the circumstances 17. Mann v. O'SuUivan, 126 it might reasonably have been Cal. 61, 58 Pac. 375, 77 Am. St. expected that such an injury would Rep. 149. result. A mere failure to warn 18. KloB V. Hudson River Ore against a result which could not & Iron Co., 77 App. Div. 566, 79 reasonably have been expected is N. Y. Supp. 156. not negligence. This was said in 19. Gay's Adm'r v. Southern reference to an injury occasioned R. Co., 101 Va. 466, 44 S. E. 707; by the sinking of a railroad track. Dahlke v. Illinois Steel Co., 100 McGowan v. Chicago & N. W. R. Wis. 431, 76 N. W. 362; North Co., 91 Wis. 147, 64 N. W. 891. Birmingham St. R. Co. v. Wright, The master's duty to warn and 130 Ala. 419, 30 So. 360. It is not instruct a servant does not extend 624 Master and Servant. §296 And there is no duty to instruct employees in regard to to warn against those dangers whicli he nor any one else would have anticipated or guarded against. Martin v. Niles-Bement Pond Co., 214 Pa. St. 616, 64 Atl. 370. Where the employer em- ployed carpenters who were en- gaged in removing a door leading into a cellar, the stairs having been removed, and an employee came suddenly upon the carpenter while so engaged pushing him aside in the act of entering the building and fell into the cellar and was killed, it was held that the em- ployer was under no obligation to anticipate such action on the part of an employee, that it had done all the law required to protect them, and that the surroundings were sufficient to put an employee upon his guard. That the accident was the result of rash conduct on the part of the deceased. Preuschoff V. B. Stroh Brewing Co., 132 Mich. 107, 92 N. W. 945. The rule that a master is not an insurer of the safety of his servant and is only liable for consequences which he may reasonably be expected to anticipate as a result of his conduct, was applied where an employee was injured while handUng piles treated with creosote by the skin upon his hands becoming thereby blistered. The defendant and the employee as well knew that such result would follow, but did not know that a further effect would be to poison the system, such a result in their exi)erience never having been known. It was accordingly held that negUgence could not be predicated upon a failure to warn. Pinkley v. Chicago & E. I. R. Co., 246 lU. 370, 92 N. E. 896. No duty rests upon the master unless it is reasonably to be apprehended that the circumstances which originate the danger will probably occur, as for instance, that a fellow-servant will tiu-n- on a blast in a furnace while employees are working upon the stove door. Dahlke v. Illinois Steel Co., 100 Wis. 431, 76 N. W. 362. Where the accident hap- pened to an employee ia winter, when the blower by which he was hurt was used for heating the factory, must have been con- stantly in use, the superintendent in starting the blower was not guilty of negUgence in not warning such employee as he could not reasonably have been exi)ected to foresee that an experienced employee, often working in that part of the building, in which the blower was situated, would not govern himself by his experience, on finding the blower shaft in motion. McKenna v. Gould Wire Cord Co., 197 Mass. 406, 83 N. E. 1113. But where an employee of defendant who had no apecial skill or experience as a machinist, was put to work at tightening the bolts of a gas generator, and to do such work properly and safely when gas was being generated, required skill and experience, and the nuts on the bolts should be moved shghtly, one at a time, so as to make the strain practically even, and it was claimed that an employee who was injured by the explosion of the generator while so engaged should have been instructed as to th« manner of doing the woric, and that the failure to so instruct him. ^266 Insteucting and Warning Servant. 625 their conduct in unexpected, emergencies, such as on discovery of a fire.^" It must appear that the accident ought to have been foreseen in the Ught of attending circumstances.^"* whereby he tightened the bolts in an improper manner, was the cause of the explosion, it was held that a verdict for the plaintiff would not be disturbed; and that the fact that the cause of the accident was unforeseen did not relieve the mas- ter from liabiUty for the employ- ment of unskilled and inexpe- rienced men to perform a dangerous service without giving them instruc- tion as to the manner of doing the work and warning of the danger. Ryan v. Los Angeles I. & C. S. Co., 112 Cal. 244, 44 Pac. 471, 32 L. R. A. 524. 20. Gihnore v. Mittineague Paper Co., 169 Mass. 471, 48 N. E. 623. 20a. St. Louis, K. & S. B. R. Co. V. Fultz, 91 Ark. 260, 120 S. W. 984. Thus, where an employee, in jumping from a car, caught his foot in the hnk at the end of the draw head, it was said the accident was improbable and one the master ought not to have foreseen. Id. Where a carpenter was injured by his clothing getting caught in a set screw upon a shaft located where workmen would have no occasion to go, the carpenter going into its vicinity in connection with his duty to make certain changes in timbers of the room, the accident reasonably could not be foreseen. Martin v. NUes-Bement Pond Co., 214 Pa. St. 616, 64 Atl. 370. Nor, could it be foreseen that there was danger to an adult servant in going under a large vat, in that 1 M. & S.--1U if his clothes became wet he would be unable to extricate himself owing to his particular bmld. Baumler v. Narragansett Brewing Co., 23 R. I. 430, 50 Atl. 841; Baumler v. Narragansett Brewing Co., 23 R. I. 611, 61 Atl. 203. Nor that there was danger to an employee walking along the track, of being struck by cars, unless it ought to have been anticipated he would be there at the time he was struck and injured. Lord v. Boston & M. R. Co., 74 N. H. 39, 65 Atl. 111. A master has no reason to expect or anticipate that a new machine would start when both the brake was set and the belt was on the loose pulley. Rhobovsky v. New Jersey Worsted Spinning Co., 76 N. J. L. 542, 70 Atl. 170. Nor was it negligence to omit placing a danger signal as to the condition of a panel in a newly laid cement floor, where the contractor had no reason to believe that servants would have any occasion to use the floor before the panel had hardened. Dawson v. St. Louis E. M. F. P. Co., 94 Tex. 424, 59 S. W. 847, 61 S. W. 118. An employee while engaged in other work than operating a machine, probably in stumbling, involun- tarily threw his hand upon the machine and was injured. The operator had just started the machine without notice to him. It was held no warning was required that it could not be anticipated that the employee would stumble 626 Master and Sebvant. §296 For instance, a lumber company was not guilty of neg- ligence in not warning its employee as to a post placed temporarily near tlie end of its track, where it could not reasonably be anticipated that, whUe trjdng to brake a car with a crow bar, the bar would strike such post and result in injury. ^^ So there was no duty resting upon the master of warning an employee wheeling a barrow along a passageway between a trip hammer and a pile of dies, where such employee was injured by his striking the dies and being thrown, his feet striking a treadle which set the hammer in motion resulting in his injury, since the accident could not be foreseen. ^^ This rule has also been applied to the danger of explosion of molten metal, ^' danger from the manner of using waste in cleaning machinery in motion, ^^ danger of persons fall- or his hand come in contact with the machine. Glover v. Kansas City Bolt & Nut Co., 153 Mo. 327, 55 S. W. 88. A master, using varnishes in his business, is not required to warn his servants of dangers attending their use, that are within the knowledge of persons having the knowledge of skilled chemists, where he did not know of the danger of explosion. Siegel V. United Elec. Heating Co., 143 Mich. 484, 106 N. W. 1127. 21. Robinson Land & Lumber Co. V. Gage, 27 So. (Miss.) 998. 22. Powers v. Wyman & Gor- don Co., 199 Mass. 591, 85 N. B. 845. 23. The master's duty did not require him to warn an apprentice eighteen years of age, who had worked in a foundry for a month at making and filling molds, of the danger of an explosion, where the latter was injured by an explosion caused by a fellow workman spill- ing a teaspoonful of molten iron on the floor which was damp, which win uniformly cause an ex- plosion, where it appeared that the spUling of the molten iron upon the floor was, in that foundry, a matter of daily occurrence, although the employee testifled he did not know an explosion was likely to occur from such cause. A particle of the molten iron came in contact with the boy's eye and the decision seems to turn upon the point that the master was not called upon to anticipate such an extraordinary accident, and that the explosion of such a small quan- tity would not have caused serious injury only from the fact of the particle striking the eye. Nowak- owski V. Detroit Stove Works, 130 Mich. 308, 89 N. W. 956. 24. A young man nineteen years of age was ordered by the foreman to wipe off a machine having revolving cogs whUe in motion. He was practically inex- perienced in the use of machinery. §296 Insteucting and Waening Seevant. 627 ing in trench wMle pushing car over trench, ^^ etc. In addition to the failure to reasonably anticipate that an accident would result from an occurrence as to which no warning was given, the matter may be looked at from another viewpoint so as to exonerate the master where he could not reasonably anticipate that the servant needed instruction in regard thereto. ^^ While so engaged and by reason of the manner in which he held the waste in his hands, not holding it compactly, a portion of it was caught in the wheels and his hand was drawn in and injured. The claim was that the foreman should have instructed him and warned him of the danger. It was said, as applicable to the facts and cir- cumstances developed in this case, that two things were material: First. That the danger to which the servant was exposed, and which was the proximate cause of the injury, was one which was known or might reasonably have been apprehended by the master. Second. That such danger was one which, by the exercise of the faculties of the servant when directed to the thing he was commanded to do, was not open to his observation and apprehension, assuming he was giving care and attention to the work required of him. It was held that the foreman Could not reasonably have antici- pated that the plaintiff would use the waste in the manner he did; that ordinary, usual and probable consequences he was bound to aiitioipate, but he was not bound to anticipate extraordinary, un- usual and improbable occurrences, which involved inattention on the part of the servant. As to the other requisite, it was clear that if the servant had paid proper attention the injury would not have occirrred. Atlas Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798. 25. A helper to a mason laying pipe in a trench was injured by a boy (who was voluntarily assisting persons in charge of a street car in pushing a car upon tracks located near or over the trench) falling from the track upon him. The negli- gence suggested was failure to station a watchman there to pre- vent volunteers from helping to push cars over the trench. It was held that the injury to the plain- tiff resulted from a pure accident, and that the omission to guard against it was not neghgence on the part of the defendant. Craven v. Mayers, 165 Mass. 271, 42 N. E. 1131. 26. The character of the work, unloading barrels of heavy sub- stances from a car, down an incline of ten inches, sliding them down, a skid, is such that an employer could not reasonably anticipate that a person of intelligence and of mature years needed instructions as to the proper manner of taking hold of such barrels. Manley v. Minneapolis Paint Co., 76 Minn. 169, 78 N. W. 1050. Where an employee, twenty-eight years old, while working with a machine run by steam power, was injured by his hand getting caught Ln the ma- 628 Master and Servant. §297 § 297. Dangers resulting from negligence of fellow- servant. Ordmarily the master is not called upon to instruct a servant, young or inexperienced or otherwise, in regard to dangers which can only result from the neghgence of fellow-servants. It is not presumed that others will neglect their duties and such persons cannot expect to be instructed as to what to do in a situation which is not ex- pected in the ordinary course of the business, and which can only exist through the fault of another. If it be assumed that there are cases where pecuhar dangers are so great and so obvious to the employer that he ought to give a young or an inexperienced person warning of them, he is called upon to do so only -when he himself ought reasonably to anticipate them, and when his instruction ought materially to diminish the danger to his employee. " chine, the danger being ohvious, and it appeared he had fifteen months' experience in operating a machine run by hand, and that the velocity was not materially increased by the use of steam, it was held that a verdict should have been directed for the defend- ant. That there was no reason on the part of the defendant to suppose that he needed either admonition or instruction as to the danger or the method of doing the work, and there was no claim in the evidence that any particular or special instruction was either necessary or usual. Dougherty v. West Superior I. & S. Co., 88 Wis. 343, 60 N. W. 274. 27. Crown Cotton MUls v. McNaUy, 123 Ga. 35, 51 S. E. 13. Thus, where a boy fourteen years old, while in an iron tank arrang- ing clothing to be bleached, was burned by a fellow-servant pouring into the tank a hot solution of caustic soda which should not have been introduced until the boy had left the tank, it was said there was no evidence to sustain a finding that the master owed the plaintiff any duty of warning and instruc- tion. The danger of such an injury was very remote and improbable. It could only come from neghgence which the employer had no reason to expect. Moreover, nothing which the plaintiff could have done could have reheved him from such an accident. SiddaU v. Pacific Mills, 162 Mass. 378, 38 N. E. 969. It was held, however, negligence on the part of the master, to place a young and inexperienced servant at work in a miU in the vicinity of dangerous machinery, without in- struction and warning. The master was not excused where such a serv- ant was injured by the neghgence of fellow-servants. Lindsey v. Tioga Lumber Co., 108 La. 468, 32 So. 464, 92 Am. St. Rep. 384. § 298 Insteucting and Waewing Seevant. 629 But an employer who knows that a need to warn a serv- ant has arisen is bound to give it though the danger arose from the negligence of a feUow-servant. ^* Thus, the duty of the master of instruction and warning was held to apply where a blacksmith was injured by a misdirected blow by his helper who was under the in- fluence of liquor, the master being chargeable with knowl- edge of the condition of such helper. ^^ § 298. Where changes made increasing the hazard. The master must warn his servant of new or increased dangers resulting from a change in the place of work, machinery, appUances or methods of work.'" Thus, where there has been any change made in the appliance after a servant has commenced his employ- ment, which increases the hazard of the service, it be- comes the duty of the master to instruct or warn the servant as to such increased danger.'^ Where, however, the work is such that the surround- ings of the servant necessarily undergo frequent changes, the master is not bound to protect the servant against dangers resulting therefrom.'^ And the duty of an employer to give notice to his serv- ant of dangers in the operation of machinery, of changes which increase the hazard, is confined to such dangers and changes as are not known to the servant, and to such as would not naturally be discovered by him by the exercise of the power of observation on his part.^* 28. Bjbjian v. Woonsocket Missouri Pac. R. Co., 87 Mo. 588. Rubber Co., 164 Mass. 214, 41 Compare Simms v. South Carolina N. E. 265. R. Co., 26 S. C. 490, 2 S. E. 486. 29. Curtis v. Laconia Car Co. 31. Pullman Palace Car Co. v. Works, 73 N. H. 516, 63 Atl. 400. Laaek, 143 lU. 242, 32 N. E. 285, 30. Cincinnati, N. O. & T. P. 18 L. R. A. 215. R. Co. V. Gray, 41 C. C. A. 535, 32. Schneider v. Philadelphia 101 Fed. 623, 50 L. R. A. 47; Quartz Co., 220 Pa. St. 548, 69 Chambers v. Chester, 172 Mo. 461, Atl. 1035. 72 S. W. 904 (substitution of higher 33. Bryant v. Great Northern grade of blasting powder); O'Neil Paper Co., 100 Me. 171, 60 Atl. V. St. Louis, I. I. M. & S. R. Co., 9 797. Fed. 337, 3 McCrary 423; Crane v. 630 Master and Servant. §298 This general rule has been applied where there has been a change made in a machine, '* tram car, '' etc. So the rule applies where a servant is put to work on a different machine of the same kind.^^ 34. It was the duty of the mas- ter to give notice to an employee of a change made in the machine, which he was operating, diiring his absence which increased the hazard of operating it. The dis- tance between the roll and cylinder of a paper machine had been re- duced one-half, an unusual arrange- ment. Ryan v. Chelsea Paper Mfg. Co., 69 Conn. 454, 37 Atl. 1062. Where the danger to an employee was increased by a change made in the machine, and the machine was thus left unad- justed and the servant never having been instructed how to adjust it, it was held the master was negligent in failing to instruct him. James v. Ames, 26 Ky. L. Rep. 498, 82 S. W. 229. It was a question for the jury whether the master was negligent in failing to inform a youthful operator of a machine that, during his absence, slides had been differently adjusted. Johnson v. Crookston Lumber Co., 95 Minn. 142, 103 N. W. 891. 35. The driver of a tram car in a mine, having been instructed as to the manner of sitting upon a car first furnished him, to avoid danger in low places, was subsequently furnished with a car which, without his knowledge, was higher than the one he had been using, and he was injured by contact with the roof of the mine. It was held that whether the company was negli- gent in furnishing biTn such a car without warning was a question for the jury. Tennessee Coal, Iron & R. Co. v. Currier, 47 C. C. A. 161, 108 Fed. 19. 36. The question of the mas- ter's negligence was presented where a servant whose duties were in connection with a hoist constructed as all others were, save one in the shop in which he was employed, and that one was operated by appliances the reverse of the others, and being set to work on such hoist, without previous ex- ,perience, he used the raising chain Instead of the lowering chain resulting in his injury. WaUgora V. St. Paul Foundry Co., 107 Minn. 554, 119 N. W. 395. Where an inexperienced girl of fourteen years was taken from the machine in the mUl which she had been operating for a short time, the gearing of which was covered, and set to work upon a similar machine in another room, the gearing of which was uncovered, and she was injured while cleaning the machine while in motion she having been told to clean this machine without any instructions or warning as to the exposed gearing nor not to clean the same while in motion, her evidence tending to show that she was warranted in supposing that it was her duty to clean it while in motion, her right to recover was properly left to the jury. Dolan v. Boott Cotton Mills, 185 Mass. 576, 70 N. B. 1025. ^298 Instructing and Wahning Servant. 631 Also where a minor was transferred from one motor to another, operated in an unfamiliar part of the mine, and where he could not ride on top of the motor, as he did when upon the first motor, on account of low places in the roof. '^ So it is the duty of the employer who has employed a minor to work upon a dangerous machine, when such minor is directed to do unusual work thereon, to which he is not accustomed, and not such as the machine was adapted to without special adjustment and a special mode of operation, to instruct him how to operate such machine and to warn him of the danger to which he might be ex- posed in operating it. '^ Likewise, the servant must be warned of dangers existing in a new place of work to which he is sent, '^ of a change of time or schedule affecting the safety of the servant, ^° 37. Burns v. Vesta Coal Co., 223 Pa. St. 473, 72 Atl. 800. 38. VerdeUi v. Gray's Harbor Commercial Co., 115 Cal. 517, 47 Pao. 364, 778. 39. Baltimore & 0. R. Co. v. Brown, 76 C. C. A. 482, 146 Fed. 24. A servant taken temporarily from the work he is employed to perform, and placed to do work of a different kind in a place with which he is unacquainted, has the right to assume, in the absence of caution or warning, that there are no circumstances unknown to him and known to the master which render his new place of work extra hazardous. This was held where an oUer on a fen-y boat in which the hatchways were always covered when not in use, was directed to perform different work on another boat which was out of commission, not knowing of a custom of leaving hatchways open on boats out of commission. Brown v. Ann Arbor R. Co., 118 Mich. 205, 76 N. W. 407. It was held to be the duty of the master in calling an employee engaged at ordinary labor, to per- form a service requiring skUl and hazardous, to instruct him as to the new danger to be encountered. He was directed to assist in resetting iron columns under an elevated track and was struck and injured by the buckling of a jack and timber. Tennessee Coal, Iron & R. Co. v. Jarrett, 111 Tenn. 566, 82 S. W. 224. 40. It was held gross negligence on the part of the foreman of a telephone company to faU to give a lineman specific warning as to change of time when an electric light company turned the power on its wires. East Tennessee Tel. Co. V. Carmine, 29 Ky. L. Rep. 479, 93 S. W. 903. It was the duty of the master to instruct a motorman of the sending out of a second ear at a time different from the schedule time, where it was likely the result would be a collision. Ft. Wayne & 632 Master and Servant. §299 of repairs rendering a place unsafe,^' of the removal of appliances or part thereof/^ etc.*' § 299. Dangers from work outside scope of employment. Where a servant is ordered by his master to do work outside the scope of his emplojmaent, it is the of the duty latter to warn and instruct him as to the dangers connected therewith,** unless the dangers are W. V. Traction Co. v. Roudebush, 173 Ind. 57, 88 N. E. 676, 89 N. B. 369. 41. Where repairs were being made upon a railroad bridge, ren- dering it unsafe, it was beld the duty of the company to warn a conductor in respect thereto. The bridge collapsed while his train was moving upon it. Beaumont, S. L. & W. R. Co. V. Ohnstead, 120 S. W. (Tex. Civ. App.) 696. 42. Rule applied where during the absence of an employee, such absence being customary, a certain part of each week, part of the planking in a pit over the room where he was required to go, was removed. Knox v. American Roll- ing Mm Corp., 236 111. 437, 86 N. E. 90, 127 Am. St. Rep. 291. It was held the duty of the master to notify a servant of the removal of spikes at the foot of a ladder attached for the purpose of preventing its sHpping, where they had been removed since the prior use of it by such employee. O'DonneU v. Sar- gent, 69 Conn. 476, 38 Atl. 216. 43. Under the particular cir- cumstances, it was held that the company was negligent in placing loaded gravel cars on the spur track without notice to the train- men, they having no reason to as- sume they had been changed from the usua' place on another track. Milboume v. Arnold Electric Power Station Co., 140 Mich. 316, 103 N. W. 821, 70 L. R. A. 600. An electric hghting company was not guilty of failure of duty in not instructing an experienced lineman as to the increased danger in work- ing on pole lamps in wet weather, it not being shown that such dampness caused the injury. The master having by means of a cut off switch guarded him absolutely against the danger of wires coming in contact with the wires of other companies, was not chargeable with negligence in that respect. Carr v. Manchester Elec. Co., 70 N. H. 308, 48 Atl. 286. 44. Quinn v. Johnson Forge Co., 9 Houst. (Del.) 338, 32 Atl. 858; Walker v. Lake Shore & M. S. R. Co., 104 Mich. 606, 62 N. W. 1032; La Plante v. Warren Cotton MiUs, 165 Mass. 487, 43 N. E. 294; Mann v. Oriental Print Works, 11 R. I. 152. Compare Davis v. Port Huron Engine & Thresher Co., 126 Mich. 429, 85 N. W. 1125; Hathaway v. Washington Milling Co., 139 Mich. 708, 103 N. W. 164. The rule that a servant assumes the risks ordinarily inci- dent to the service in which he is engaged, and is presumed to have contracted with reference to such risks, does not measure the master's duty when he calls upon his serv- §299 Instructing and Wabning Servant. 633 obvious. ^^ But where the servant voluntarily and with- out orders goes outside the scope of his employment the duty to warn does not exist. ^* ant to work beyond the terms and intentions of his contract. The rule in such a case is that if there are hazards incident to the extra service, which are or ought to be known to the master, which the servant on account of ignorance or lack of experience does not under- stand or appreciate, or may not reasonably be presumed to under- stand and appreciate, it is the duty of the master to indicate the peril. Norfolk Beet-Sugar Co. v. Hight, 69 Neb. 100, 80 N. W. 276; Stodden V. Anderson & Winter Mfg. Co., 138 Iowa, 398, 116 N. W. 116, 16 L. R. A. (N. S.) 614. This rule was applied where an employee was ordered by his superior into an engine room which by reason of the reverse movement of the engine and counter balance thereon and the sloping and slippery condition of the floor, it being covered with oil, was unsafe and dangerous, where such conditions were unknown to the employee who slipped upon the floor and was injured by the engine. Knickerbocker lee Co. v. Gray, 171 Ind. 395, 84 N. E. 341. Where an employee called to do work in a dangerous place outside of the scope of his employment, having no knowledge that the operator of a crane customarily dropped heavy pieces of pig iron directly at that place, was killed by one such piece falling upon him, and no provision was made to warn him of the dan- ger, a case was presented for the jury, and it was error to direct a verdict for the defendant on the ground that the negligence was that of the operator of the crane, a fel- low-servant. Barto V. Detroit Iron & Steel Co., 155 Mich. 94, 118 N. W. 738. It is the duty of the master, who knowingly employs youthful or inexperienced servants and subjects them to the control of others to see that they are not em- ployed in a more hazardous position than that for which they are em- ployed, and if so employed or directed, to give them such warning of their danger as their youth and inexperience demands or the in- creased perils demand. In the performance of this duty the serv- ant stands in the place of the mas- ter. Newbury v. Getchel & Martin Lumber & Mfg. Co., 100 Iowa, 441, 69 N. W. 743, 62 Am. St. Rep. 582. This duty arises only as to dangers which the master knows or has reason to believe the servant is ignorant of. Newbury v. Getchel & Martin Lumber & Mfg. Co., 100 Iowa, 441, 69 N. W. 743, 62 Am. St. Rep. 582; Yeager v. Burlington, C. R. & N. R. Co., 93 Iowa, 1, 61 N. W. 215. It does not arise as to dangers known to the servant or that are so open and obvious as that by the exercise of ordinary care he would know them. Mc- Carthy V. Mulgrew, 107 Iowa, 76, 77N.W.527. 45. Reed v. Stoekmeyer, 20 C. C. A. 381, 74 Fed. 186. 46. National Biscuit Co. v. No- lan, 70 C. C. A. 436, 138 Fed. 6; Kelly V. Shelby R. Co., 15 Ky. L. Rep. 311, 22 S. W. 445. 634 Mastee and Servant. § 299a For instance, the duty of instruction does not extend to work wMcli the employee is not required to perform, such as voluntary acts, as where a boy undertook to perform work with a machine in a place in which he was not expected to work;^' or voluntarily used a circular saw outside of the scope of his employment;*' or to warn a minor of the dangers of going into a mine off the regular path where a guide is furnished and he wanders away from him into an unsafe place therein. *' Voluntarily attempting to repair machinery. Where a master does not require his servant to repair machinery used by the latter, but has a machinist em- ployed to perform that duty, to whom the servant is re- quired to report in case of the machinery becoming out of order, it is not required that he instruct the servant as to the manner of repairing, or the danger in attempting it, and in case the servant does attempt it without orders and is injured the master is not responsible.^" Voluntarily performing work of another. Where an employee with experience with machinery set at work on the morning of the accident to assist a workman upon a machine, voluntarily, during the tempo- rary absence of such workman, attempted to perform his work and was injured, it was held that he could not be heard to claim that the master was negUgent in not warn- ing and instructing him concerning the danger. ^^ § 299a. Obvious risks and dangers. Many of the cases incorporated under this subhead, might properly be placed under the head of obvious risks, 47. Leistritz V. Amerieaii Zylon- 50. MeCue v. National Starch ite Co., 154 Mass. 382, 28 N. E. Mfg. Co., 142 N. Y. 106, 36 N. E. 294; White v. Wittemann Lith. 809. Co., 131 N. T. 631, 30 N. E. 236. 51. Richstain v. Washington 48. MarshaU V. Burt & MitcheU Mills Co., 157 Mass. 538, 32 Co., 75 N. J. L. 624, 69 Atl. 183. N. E. 908. 49. Smith v. Thomas Iron Co., 69 N. J. L. 11, 54 Atl. 562. §299 Instexjcting and Warning Sbevant. 635 appearing in the chapter relating to assiuned risk, but as the courts, in the cases here referred to, placed their de- termination upon the ground of the master's duty of warning and instruction, it seems more proper to place them here. This may result in some repetition, but it would seem to be unavoidable in correctly stating not only the determination of the courts, but their reasons and the specific ground therefor. The rule is that if the risk or danger is obvious, the duty to warn and instruct does not exist. ^^ 52. Melton v. E. E. Jackson Lumber Co., 133 Ala. 580, 31 So. 848 (danger from felling of trees, plaintiff a deaf mute); Crown Cot- ton MiUs V. McNaUy, 123 Ga. 35, 51 S. E. 13; ConsoKdated Coal Co. v. ScheUer, 42 lU. App. 619; Chicago & A. R. Co. V. Bell, 209 111. 25, 70 N. E. 754; McCarthy v. Mul- grew, 107 Iowa, 76, 77 N. W. 527; Atchison, T. & S. F. R. Co. v. Weikal, 73 Kan. 763, 84 Pac. 720; MeCormick Harvesting Mach. Co. V. Liter, 23 Ky. L. Rep. 2154, 66 S. W. 761; HofCnauer v. R. H. White Co., 186 Mass. 47, 70 N. E. 1038; MushinsM v. Vincent, 135 Mich. 26, 97 N. W. 43; Smith v. Forrester-Nace Box Co., 193 Mo. 715, 92 S. W. 394; Collins v, Laconia Car Co., 68 N. H. 196, 38 Atl. 1047; MeCue v. National Starch Mfg. Co., 142 N. Y. 106, 36 N. E. 809; Cracraft v. Bessemer Limestone Co., 210 Pa. St. 15, 59 Atl. 432; Paoline v. J. W. Bishop Co., 25 R. I. 298, 55 Atl. 752; Martin v. Royster Guano Co., 72 S. C. 237, 51 S. E. 680; Seery v. Gulf, C. & S. F. R. Co., 34 Tex. Civ. App. 89, 77 S. W. 950; Rich- mond Locomotive Works v. Ford, 94 Va. 627, 27 S. E. 509; Woods v. Northern Pac. R. Co., 36 Wash. 658, 79 Pac. 309; Groth v. Tho- mann, 110 Wis. 488, 86 N. W. 178. No warning was required as to the condition of the floor in a large unused room, where an experienced foreman and men under him were directed to clean it. The master had a right to assume in view of the nature of the work, the workmen's experience and the obvious condi- tion of the floor, that no warning as to defects in the floor were neces- sary. O'Keeffe v. John P. Squire Co., 188 Mass. 210, 74 N. E. 340. There is no duty of an employer to inform an employee that engines will without notice be run on to a pit where ashes are to be taken out of it, where the employer had pro- vided a method for the approach of the engines to be made with proper signals and notice. The method was for some one to stand at the side and show where the engine should stop and after the stopping of the engine to move over it. The neglect in this instance to observe such method was that of a feUow-servant. Chicago & A. R. Co. V. BeU, 209 III. 25, 70 N. E. 754. 636 Master, AND Servant, §299a This is merely anotlier way of saying that if the servant knew or ought to have known of the risk or danger, the duty to instruct and warn does not ordinarily exist/' In determining what dangers are obvious or apparent, the experience or lack of experience of the servant must be considered;** and a danger. is not necessarily obvious to an inexperienced employee because it would be obvious to an experienced employee." 53. See infra, § 304. 54. SMokle-Harrison & How- ard Iron Co. V. Beek, 112 111. App. 444. The rule is stated that unless mental immaturity or infirmity is shown, recovery cannot be had where the danger is obvious to a person of ordinary intelligence, on the ground that the servant was inexperienced in use of machinery and the source of danger and was not warned thereof. Norfolk Beet- Sugar Co. V. Preuner, 55 Neb. 656, 75 N. W. 1097. That by the terms of his employment a servant agrees that dangers obviously incident to the discharge of his duty shall be at his risk and hence it is unimportant whether he is informed or knows of the par- ticular danger to be apprehended. Bauer v. American Car & Foundry Co., 132 Mich. 537, 94 N. W.9. While such declaration finds sup- port as a general rule, yet it must be said that it is not applicable in all cases and especially where the master knows of the inexperience of the servant. Thus it was said by the court last above cited, that the duty of the master in this re- spect where an inexperienced em- ployee is set to work upon a danger- ous machine, is to explain to him its mode of successful operation, its dangers to the unskilled and the care and attention demanded from its operators, the degree of instruction to be given depending upon the age and experience of the servant and the dangerous character of the machine. Marklewltz v. Olds Motor Works, 162 Mich. 113, 115 N. W. 999; Brennan v. Gordon, 118 N. Y. 489, 23 N. E. 810, 8 L. R. A. 818, 16 Am. St. Rep. 775. And by another that an employee cannot be supposed to be presumed to have accepted in advance a peril which he could not estimate and the extent of which he could not have known. McDougall v. Ash- land Sulphite-Fibre Co., 97 Wis. 382, 73 N. W. 327. 55. Where a common laborer was ordered to cut a trolley wire over defendant's track, a work outside of his employment, and in doing the act, standing on a ladder on top of a car, the wire parted, the rebound throwing him from the car, causing his death, and it appeared he was without expe- rience in such work, it was held that it was for the jury to determine whether the danger was apparent to deceased, though it may have been obvious to one having skill and experience. Walker v. Lake Shore & M. S. R. Co., 104 Mich. 606, 62 N. W. 1032. § 299a Instructing and Wakning Servant. 637 And the fact that the danger is patent or obvious does not relieve the master of his duty to warn where the serv- ant, because of youth, inexperience or other cause, is incompetent to fully understand and appreciate the danger." In other words, where the employment is dangerous and the employee is inexperienced, the master must warn and instruct him how to avoid the danger, although the danger is open to observation but not understood by the employee." And so far as infants and inexperienced employees are concerned, it is submitted that, although the danger is obvious, the better rule is that, where the danger hes in the method of operating the apphance, the servant should receive proper instruction and warning from the master in relation to the operation of the machine and the danger incident thereto, other than by observation.^* This rule as to obvious risks is further subject to the apparent exception, in some jurisdictions, that where engrossing duties are required of the servant, he may rely on the master giving warning of perils unknown to the servant and from which the work exacted necessarily detracts his attention.^' 66. Giebell v. Collins Co., 54 opportunity to leam the proper way W. Va. 518, 46 S. E. 569. before they are allowed to attempt 57. Fletcher Bros. Co. v. Hyde, to use the machine or implement. 36 Ind. App. 96, 75 N. E. 9. AUen v. Jakel, 115 Mich. 484, 73 58. Thus where the danger was N. W. 555. The general rule may obvious and the employee knew and apply where the only danger to be had been warned not to let her apprehended is perfectly obvious hand get caught between the to any person of ordinary inteUi- roUers, it was held that the only gence and where neither skill or question in the case was whether thei experience is required in operating defendant was in duty bound to the machine of knowledge of its give her instructions as to how workings to avoid the obvious dan- to do the work or might leave her to ger. learn it by observation and expe- 69. Where an employee was rience, and this was a question for ordered into a place of danger out- the jury. It was said that sMll side his regrular duties, and while and dexterity are essential and performing the same rested his prudence dictates that inexpe- arm across an elevated track upon rienced persons shoidd have some which a large crane moved, and 638 Master and Servant. §299b § 299b. Latent and extraordinary risks or dangers. Sometimes there are risks or dangers whicli even an experienced servant cannot guard against unless instructed or warned in regard thereto by the master; and in such case it is the duty of the master to instruct or warn the servant if the master has knowledge or ought to have knowledge of the risk or danger. This apphes to latent defects in an apphance or place of work known to the master and not known to the sei-vant. Where there are risks of a special nature in an employment, of which the employee is not cognizant, or which are not patent in the work, it is the duty of the employer specially to notify him of such risks, and on failure to give such notice, if he is hurt, by exposure to such risks, he is entitled to recover from the employer in all cases where the employer either was cognizant or ought to have been cognizant of the risks. ^^ Bucli crane was stationary wten lie commenced Ms duty, but started when he was performing it, the customary signal being given, which was not heard by such employee owing to the great noise in the shop and his attention being en- grossed with his duties, and his arm was crushed, the rule was applied that the servant has a right to rely upon the fact, where engrossing duties are required of him, that the master wiU not without proper warning subject him to other perils unknown to him and from which the work exacted necessarily detracts his attention. Michael v. Roanoke Machine Works, 90 Va. 492, 19 S. E. 261, 44 Am. St. Rep. 927. It is not apparent what more the master should have done. Should he have stationed a man to have given the employee personal warn- ing? 60. Lake Shore & M. S. R. Co. v. Fitzpatrick, 31 Ohio St. 479. In that case, a railroad company constructed its turn table close to a track upon which engines were accustomed to move, and subse- quently the company put in use larger engines, which, when being turned upon the table, were liable to be struck by passing engines, and while one such was being turned by an employee by means of a crank provided for such purpose, it was struck by a passing engine, causing the motion of the crank to be reversed and fly back- ward, striking such employee with great force, causing him injury; and it was said that the testimony showed that he knew when a large engine was on the table, headed toward the track, its pilot pro- jected over a rail of the track, and it might be inferred that he knew there was liability that an engine on the track might collide with one on the table, and yet he might have been ignorant that such a collision § 299b Instructing and "Wakning Seevant. 639 This rule has been apphed to dangers in connection with electric wires/^ and to warnings as to the explosive would probably expose Mm to danger of personal injuiy, and it cannot be said lie was chargeable with negligence in reference to a matter of which he was ignorant. 61. Where an employee engaged in performing duties as an oiler in a large electric plant was kUled by contact with electric wires, which were so arranged upon the floor as to be extra and unnecessarily dan- gerous, it was said: "It was the duty of the company to have known of the dangerous character and con- dition of the wires. The law pre- sumes it. In such cases the super- ior is bound specially to warn the employees of the nature of the dan- ger, and will not be excused, in case of injury, unless he proves that the employee well knew of the danger, and notwithstanding exposed him- self wilKngly and deliberately to it. In this case the great presumption is that the employee was totally unaware of the same, for it cannot for an instant be reasonably sup- posed that, had he known that by coming in contact with the wires they would have stricken him dead, he would have done so." Myhan v. Louisiana E. L. & P. Co., 41 La. Ann. 964, 6 So. 799, 7 L. R. A. 172, 17 Am. St. Rep. 436. An employee of a telegraph company was injured by receiving a strong shock of electricity while he was attaching a telegraph wire upon a pole. It appeared that ordinarily there was no danger from such source, but in the particular instance there were poles to which electric wires were attached, which fact was unknown to the plaintiff. That he, being a stranger, had no knowledge of this additional element of danger. It was held that whether such element of danger was or ought to have been known to or observed by him was a question for the jury. Western Union Tel. Co. v. McMuUen, 58 N. J. L. 155, 33 Atl. 384, 32 L. R. A. 351. There is no duty resting upon the master to warn an employee of abnormal dangers where either from the character of the work or other sources, the employee is possessed of all the information which the master could have fur- nished regarding such perils; and hence, where an electric light com- pany's employee was kiUed by contact with a tap wire, while stringing wires, where the wire was plainly visible and such an em- ployee, an experienced workman, had been informed of all the ele- ments of danger attendant upon his employment, and was permitted to perform the work in his own way, with an opportunity to unrestricted observation which the dangerous environments demanded, negli- gence of the master did not appear. Pembroke v. Cambridge Electric Light Co., 197 Mass. 477, 84 N. E. 331. The master is not bound to instruct an employee as to special dangers incident to the employ- ment, if such information is fuUy within his knowledge. This was stated with reference to the danger of grasping or coming in contact with uninsulated wires. Wendler v. Red Wing G. & B. Co., 92 Minn. 122, 99 N. W. 625. Though the duty of inspection of wires and poles on and around which a line- 640 Masteb and Sebvant. §299b character of enameP^ or hot metal." On the other hand, the habUity of lime to explode, when mixed with water, is man is working, may ordinarily be on the lineman, where his knowl- edge or previous experience is such that he may know the danger to which he is exposed, yet where the master knows of peculiar danger which a lineman will encounter, or has reason to anticipate the pres- ence of such danger, and the danger is such that the lineman from lack of knowledge may not appreciate it, the master owes the lineman the duty of warning him thereof. This rule applied where uninsulated wires were attached to telegraph poles around which a lineman had not previously worked, by an electric railway company. Postal Telegraph Cable Co. V. Likes, 225 lU. 249, 80 N. E. 136. 62. One employed as a work- man in the enameling department of a manufacturer making its own enamel for its porcelain lined re- frigerators, was not as matter of law chargeable with knowledge of the chemical changes occurring in the manufacture of enamel, or of the extraordinary results of the action of the forces used in the man- ufacture, and hence it was held that under the evidence that it was a question for the jury whether such a workman injured by an explosion thereof, should have been warned in respect to the dangers incident to the process. Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 126 N. W. 724, 27 L. R. A. (N. S.) 953. 63. Where a laborer slipped and fell while carrying molten me- tal along a passageway which was covered with ice, and was injured by the explosion of the metal, caused by its contact with the ice, it was said that as to those dangers which are the subject of common knowledge, or which can readily be seen by common observation, the master is under no obligation to in- form the servant, but the servant should have been instructed that the metal was likely to explode by coming in contact with ice, as that was a peculiar danger which he was not presumed to know. Smith v. Peninsular Car Works, 60 Mich. 501, 27 N. W. 662, 1 Am. St. Rep. 542; New Albany Forge & Rolling Mill V. Cooper, 131 Ind. 363, 30 N. E. 294. Where an employee, in- experienced in the particular work in which he was injured, was in- jured whUe dumping pots of molten copper, by one of the pots exploding when dumped by him, at a place where there was water, an instruc- tion that it was the duty of the master to warn the plaintiff that an explosion might occur from the con- tact with water and to explain to Tiim the nature, force and probable efiect of such an explosion, was not error. Ribich v. Lake Superior Smelting Co., 123 Mich. 401, 82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215. It was said that the law will not presume that men of ordinary intelligence know the explosive character of hot slag when thrown into water; it is doubtful whether many people of education know the force and vio- lence of such an explosion, and therefore an employer is bound to inform his servant of the dangers § 299b Insteucting and "Waening Servant. 641 such a matter of common knowledge that no duty de- volves upon the master to instruct or warn a servant in respect thereto.** It was held to be the duty of an employer who put his men at work in the making of paris green, n which poi- sonous ingredients are used, which are hkely to cause injury to one so engaged by inhalation of poisonous fumes, to inform them of the dangerous character of such pro- cess and the necessary precautions that should be taken to avoid injury from such source. It was said, however, that the employer is not required to inform them of the particu- lar ingredients of ^he formida used in its manufacture.*^ A hke rule was appUed as to the danger from poisonous fumes from the manufacture of demitro benzole.** Dangers arising from extraneous causes. If the employer has knowledge that the particular em- ployment is from extraneous causes hazardous to a degree beyond what it fairly imports or is understood by the em- ployment to be, he is bound to inform the employee of the fact, and if he fails to do so he is hable in damages for injuries sustained by such employee from such causes. The employee is entitled to all the information the em- ployer may possess with regard to the danger arising from extraneous causes, to enable him to determine for himself attending an employment con- zole which evolved poisonous fumes nected with the use of such mate- and which caused him discomfort rial. McGowan v. La Plata M. & so that he left the work, whereupon S. Co., 9 Fed. 861, 3 MeCrary 393. the superintendent assured him 64. BoUington v. Louisville & the fumes would not hurt him and N. R. Co., 30 Ky. L. Rep. 1260, ordered him to return to his work, 100 S. W. 850, 8 L. R. A. (N. S.) and the expert testimony was con- 1045. flicting as to whether such iQness 65. Fox V. Peninsular White was or could have been produced Lead & Color Works, 84 Mich, by such fumes, it appearing he had 676, 48 N. W. 203. not been warned of any danger, it 66. Where a common laborer was held that the question of de- employed on outside work was fendant's negligence was for the ordered by the superintendent to jury. Wagner v. H. W. Jayne do some work in connection with Chemical Co., 147 Pa. St. 475, 23 the process of making demitro ben- Atl. 772, 30 Am. St. Rep. 745. 1 M. & a.— 41 642 Masteb and Servant. § 300 whether at the proffered compensation he will assume the risk and incur the hazard.*^ For instance, where the servant of a corporation does acts in obedience to its orders which are in violation of an injunction restraining such acts, or which amount to a trespass, and such servant has no notice of the injunction or the validity or wrongfulness of such acts, or of any habiUty or danger of arrest likely to be incurred in the performance thereof, and such liability and threatened danger are known to his principal but concealed from him, the principal is bound to indemnify him for damages suffered by him as a natural result of the acts done in obedience to the orders of his superior, and such Habihty does not depend upon the ultimate determination of the question as to whether the alleged trespass by or upon the servant is or is not legally justifiable, or as to the legality or propriety of the issuance of the injunction.** So where the employer had knowledge, when he em- ployed the servant, that the latter was in danger of being injured by striking employees, the duty to warn exists.*' § 300. Experienced servants. It is sometimes stated that if a servant is experienced, no duty exists to warn him.'" This statement, however, is subject to certain quaJifica- tions inasmuch as imder certain circumstances it may 67. This rule applied where the made him acquainted with what he defendant employed a carpenter to believed might be the action of such go with him to perform work upon other parties. Baxter v. Roberts, certain premises. The defendant 44 Cal. 187, 13 Am. Rep. 160. knew that other parties claimed to 68. Guirney v. St. Paul, M. & be in possession of the land and had M. R. Co., 43 Minn. 496, 46 N. W. erected a fence, and he had good 78, 19 Am. St. Rep. 256. reason to believe that any interfer- 69. Holshouser v. Denver Gas ence with such fence would be for- & Electric Co., 18 Colo. App. 431, cibly resisted. Such employee was 72 Pac. 289. wounded by being shot with a rifle 70. King v. Morgan, 48 C. ball. It was held that the em- C. A. 507, 109 Fed. 446; Republic ployer's duty required that he Iron & Steel Co. v. Ohler, 161 Ind. should have given the plaintiff such 393, 68 N. E. 901. information as he possessed and §300 Instructing and Wahning Sebvant. 643 be necessary to -wam even a mature and experienced serv- ant, as for instance where tlie danger or defect is latent and known to the master but not known to the servant, or where the danger arises from a change in appliances or methods of work.'^i The true rule is that when there are special risks, which are not obvious or patent, and of which the servant is not cognizant, it is the duty of the master to notify him of such risks, ^^ and this appUes to experienced as weU as inexperienced servants. The duty to instruct and wam an experienced servant exists only as to latent and extraordinary risks and dan- gers which are known or ought to have been known by the master and which were not known or ought to have been known by the servant.'' 71. See infra — . 72. Chicago & A. R. Co. v. Bell, 209 m. 25, 70 N. E. 754. 73. There is no duty on the part of the master to wam an ex- perienced raUroad employee that ears may be left on tracks so close to an adjacent track as to be dan- gerous to one climbing cars. Bence V. New York, N. H. & H. R. Co., 181 Mass. 221, 63 N. E. 417. A mere general request to a servant to examine a machine and repair it, if he can, does not render the master liable by reason of any danger or defect connected with the whole apparatus, but is the request merely, to repair a specific part. It may be the duty of the master to warn hiTn of dangers not apparent and due to the improper working of a part, other than the part which he is asked to repair. Martiaeau v. National Blank Book Co., 166 Mass. 4, 43 N. B. 513. The employ- er is not required to wam an ex- perienced employee operating a moulding machine, of the danger incident to the use of the machine with a gniard, not a part of the machine, but an appliance made by the wotkmen without direction from the employer, of less width than the one the operator had used elsewhere. Gleason v. Smith, • 172 Mass. 50, 51 N. E. 460. No duty rests upon the master to in- struct an experienced machinist how to use a vise and wrench in fitting gas pipes, which the latter has been using daily for years. Pearson v. Boston Gas Light Co., 201 Mass. 176, 87 N. E. 571. An employee set at work in a strange place, has a right, in the absence of any warning, to assume that there are no dangerous openings in the platform upon which he is to carry boxes which obstruct his view. Hayes v. Frederick Stearns & Co., 130 Mich. 287, 89 N. W. 947. 644 Mastee and Servant. §301 The master must warn even experienced servants where he knows of extraordinary risks which may be encoun- tered.'* § 301. Inexperienced servants. If a servant is inexperienced in the work, of course the duty of the master as to instruction and warning is greater than as if the servant is experienced. The ques- tion often arises, however, as to the duty where the servant says nothing about his experience and the mas- ter knows nothing in regard thereto. The rule is that if the servant is employed in a place of danger, and he is inexperienced or of immature years, such instruction and warning must be given as is rea- sonably necessary in view of such inexperience or youthful- ness.'* 74. Illinois Steel Co. v. Ryska, 102 111. App. 347. See also supra, §— . 75. GiebeU v. Collins Co., 54 W. Va. 518, 46 S. E. 569; Norfolk Beet-Sugar Co. v. Hight, 56 Neb. 162, 76 N. W. 566; Strattner v. Wilmington City Electric Co., 3 Pennew. (Del.) 245, 50 Atl. 57. "If the master has notice of the dangers likely to be encountered and notice that the servant is inex- perienced or for any other reason disqualified, he comes under an obUgation to use reasonable care in cautioning and instructing such servant in respect to the dangers he will encounter and how best to dis- charge his duty." In the particular case, the employee applied for the position of switchman, informing the master he was inexperienced. The yard master then undertook his instruction, and sent h\m as a learner to a switching crew. In less than five days the foreman cer- tified he was qualified. He was injured in coupling cars having diverse couplings, an ordinary haz- ard for an experienced servant. The master's negligence was a question for the jury. Louisville & N. R. Co. V. Miller, 43 C. C. A. 436, 104 Fed. 124. The above rule was apphed where an inexperienced servant helping a boiler maker was sent into the fire box of a locomotive boiler with steam up, against his objection, to tighten a leaky plug, and in pounding it the threads came off, the plug blew out, and he was scalded to death. Felton V. Gu-ardy, 43 C. C. A. 439, 104 Fed. 127. An employee has a right to suppose that his employer has provided such safeguards and means of protection from injury in the use of machinery, tools and appliances usual and reasonably necessary for his safety, and he cannot be held to assimie the risks attendant upon their absence unless such absence is apparent or his attention has been called to it. §301 Instetjcting and Wakning Sekvant. 645 Stated in another way, if the servant is ignorant and inexperienced, it is a duty to warn him of dangers not obvious to one without experience; but there is no duty to notify or instruct him as to dangers which are open and apparent to every person. ^^ If the business is one witli which he is not familiar, he has a right to expect that its dangers will be pointed out to him, and that he will be instructed in those things necessary for him to know in order to his own safety. He cannot be held to assume the risks of dangers of the existence of which he has no knowledge. In the case of young persons, it is the duty of the em- ployer to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they should not be exposed. The duty in such case to warn and instruct grows natur- ally out of the ignorance or inex- perience of the employee, and it does not extend to those who are of mature years and famiUar with the employment and its risks. Rummel v. DUworth, 131 Pa. St. 509, 19 Atl. 345, 346, 17 Am. St. Rep. 827. 76. Chicago & A. R. Co. v. BeU, 209 lU. 25, 70 N. E. 754. The duty of the master to warn an in- experienced employee of dangers and to instruct him in the use of dangerous appliances, was applied to a drawing machine, so called about the operation of which there were obscure conditions and pecu- liar attributes increasing the haz- ard. Gray v. Commutator Co., 85 Minn. 463, 89 N. W. 322. Where a common laborer about a mill was set at work to feed a cir- cular saw, and was without expe- rience except such as he had from performing such service for three or four days prior to the day when he was injured by a board which fell upon the top of the saw being thrown back, it was held that the danger from such source should have been explained to him or he warned thereof, and the defendant was liable for its omission in that respect. Arizona Lumber & Tim- ber Co. V. Mooney, 4 Ariz. 96, 33 Pac. 590. It was held by the Mass- achusetts court that a common laborer inexperienced in the work he was required to do, should have been warned of the dangers that might ensue in the construction of a building, from the spreader placed between two parallel beams to fasten them together, falling, caused by a bolt being partly re- moved, when such laborer and others were engaged in turning one of the eye beams. Reardon v. Byrne, 195 Mass. 146, 80 N. E. 827. What he could have been told or what warning should have been given, does not appear. Where an inexperienced employee while working a windlass was injured as he was lifting by means thereof a heavy timber or pile, by the handle slipping from his hand, caused by the heavy weight of the timber, and it was alleged that the machine was defective in that it had no clutch or contrivance to prevent its turning back, of which 646 Master and Sebvakt. §301 Thus, if a servant is inexperienced, it is the duty of the master to instruct him in regard to the use of and dangers from, dynamite in coimection with his work." Presumption of qualifications of servant seeking employment. Generally, where a servant sohcits employment in a particular calling, the master has the right to assume, in he was ignorant, it was held that he was entitled to recover. Cartter V. Cotter, 88 Ga. 286, 14 S. E. 476. 77. Where the master puts a servant into an employment at- tended with dangers of a latent character, he is bound to give him information of the incidents of peril in which he is placed if it is not reasonably to be supposed that he understands them. This was said where an employee was injured by the explosion of dynamite in a room where there was a heater, Bueh room being his place of work, which consisted in attaching a fuse to fulminating caps, and as to which he had only two days' ex- perience. Rillston V. Mather, 44 Fed. 743. Master negligent in not warning a boy of the nature of the danger from handling dynamite, and in not instructing him as to the manner of picking up sticks of it, where directed to perform such service. Wood v. MoCabe & Co.,, 151 N. C. 457, 66 S. E. 433. Where a servant, a minor, was injured by the explosion of giant powder which had been furnished him for use, and it appeared that ordinary powder was used when such em- ployee entered the service, but giant powder was substituted afterwards, and the negUgence charged was the introducing of the new explosive without informing his superiors or instructing him as to the proper manner of using it, and without advising him fully as to its danger- ous character, it was said that be- fore allowing this new compound to be introduced, it was a duty which the company owed to the plaintiff to ascertain and make known its properties, and the mode of using it, either to the plaintiff himseK or those under whose direc- tion he worked; and that it was gross negligence to furnish such an article for a laborer's use without giving him the requisite informa- tion. Smith V. Oxford Iron Co., 42 N. J. L. 467, 36 Am. Rep. 535. It was held to be the duty of a master to warn an inexperienced laborer, set at work with a pick to dig where frozen ground had been blasted, of the danger of unex- ploded blasts, where he struck an unexploded piece of dynamite with his pick, causing it to explode, whereby he was injured. Burke V. Anderson, 16 C. C. A. 442, 69 Fed. 814. But the removal of unexploded blasts by drilling is in in the line of employment of serv- ants whose duties relate to blasting in a quarry. Such an employee assumes the risk from such work done in the ordinary manner. Miller v. Western Stone Co., 61 111. App. 662. § 301 Instbucting and Warning Servant. 647 the absence of information to the contrary, that the servant is qualified for that work, and the duty of cau- tioning and instructing the servant other than as to latent or extraordinary dangers only arises from facts brought to the master's notice of the disqualificat'on of the servant to safely encounter dangers known to him.'^^ Wh.ere a person of apparently sufficient age, physical ability and mental cahber to perform the service, seeks employment at the hands of a railway company or other master, he ought to be held to an impUed representation that he is competent to perform the duties of the position he seeks, and competent to apprehend and avoid all dan- gers that may be discovered by the exercise of ordinary care and prudence. "In such case" say the court, "we know of no good reason or rule of law that wiU compel the master to pass him through a critical examination to discover his competency for the place, or that will convict the master of negligence for not so doing."" By the universally acknowledged rule of the common law, where an employee of age and intelUgence enters another's service, he is presumed to understand, and, in the absence of any agreement to the contrary, to assume aU the ordinary risks iacident thereto, and to reasonably predicate his wages upon the extent of the perils he is to encounter, among which are those he knows are more or less Ukely to occur through occasional neghgenoe of his co-employees.*" Whether from carelessness of fellow-servants in the same line of employment or the ordinary dangers in the use of machinery and apphances used in the business, the quali- fication of the rule is that the master must use reasonable precautions to select capable and prudent feUow-servants 78. Louisville & N. R. Co. v. 187; O'Neal v. Chicago & I. C. Miller, 43 C. C. A. 436, 104 Fed. R. Co., 132 Ind. 110, 31 N. E. 669. 124. 80. Hare v. Melntire, 82 Me. 79. Pittsburg, C. & St. L. R. Co. 240, 19 Atl. 453, 8 L. R. A. 450, 17 V. Adams, 105 Ind. 151, 5 N. E. Am. St. Rep. 476. 648 Master and Servant. ^301 and machinery and implements properly constructed and of good material.^^ And where a servant engages himself in any specific work, such as operating a machine, ihe master has the right to presume that the servant has the knowledge, ex- perience and skill necessary for the work so undertaken in a reasonably safe and proper manner, in the absence of knowledge to the contrary, and especially where the employee holds himseK out to the employer as expe- rienced in such work.*^ This rule as to the presimiption that one seek- ing employment is competent and need not be instructed or warned as to ordinary dangers is often appHed to railroad employees in general,*^ brake- 81. Richardson v. Cooper, 88 111. 270; Snow v. Housatonio R. Co., 8 Allen (Mass.) 441, 85 Am. Dee. 720; Gilman v. Eastern R. Corp. 10 Allen (Mass.) 233, 87 Am. Dec. 636; Hardy v. Chicago, R. I. & P. R., 139 Iowa, 314, 115 N. W. 8, 19 L. R. A. (N. S.) 997; Kerker v. Bettendorf Metal Wheel Co., 140 Iowa, 209, 118 N. W. 306. 82. PunkowsM v. New Castle Leather Co., 4 Pennew. (Del.) 544, 57 Atl. 559; Saucier v. New Hampshire Spinning Mills, 72 N. H. 292, 56 Atl. 545; Huber v. Jack- son & Sharp Co., 1 Marv. (Del.) 374, 41 Atl. 92. 83. With respect to railroad employees, it has been stated that it is settled beyond controversy that they are presumed to under- stand the nature and hazards of the emplojrment when they engage in the service. Louisville, N. A. & C. R. Co. V. Buck, 116 Ind. 566, 19 N. E. 453, 2 L. R. A. 520, 9 Am. St. Rep. 883. Or differently stated, they are presumed to con- tract with reference to the hazards incident to the service. Chicago & N. W. R. Co. v. Donahue, 75 111. 106. The statement first above given probably should be taken, with some qualification. Much depends upon the character of the particular employment and the risks incident thereto. It may be true that as to those risks inci- dent to the particular employ- ment, as the business is ordinarily conducted, a presumption arises that he fuUy understands and com- prehends them from the mere fact that he solicits such employment, and hence no duty devolves upon the master to instruct or warn him. If, however, he makes known his inexperience, or the master is otherwise charged with knowledge, especially in the case of youthful employees, the rule and duty may be different. The rule, it seems was more correctly stated where it was said with reference to an em- ployee sohciting employment in a round house: "Ordinarily where an adult person solicits employment in a particular line of work, the act §301 Instetjcting and Waening Servant. 649 of solicitation is an assertion by the person seeking employment, that he is competent to discharge all the ordinary duties and is one of the general implied conditions of every contract for service with an adult person. It is the fault of the servant if he undertakes ■without sufficient skill or appUes less than the occasion requires." Union Pac. R. Co. V. Estes, 37 Kan. 715, 16 Pac. 131. It was said of a section man that, in accepting the employ- ment, he not only assumed the risks ordinarily incident to the particu- lar service, but he also assumed that he had the capacity to under- stand the nature and extent of the service and had the requisite ability to perform it. International & G. N. R. Co. V. Hester, 64 Tex. 401. 84. Thus where one inexper- ienced applied for employment as a brakeman and was injured whUe in the service, it was said that he could not urge his inexperience or that he was not instructed as to the dangers of the service as a ground of recovery. He sought the employment voluntarily. The position sought was one accom- panied with danger. The danger was not concealed but apparent. He was not exposed to any extra danger or hazard, nor set at work which he had not sought and engaged to do. He cannot now be heard to say, "I sought my position with a full knowledge of my inexperience, but you knew of my inexperience and therefore insured me against injury. I solicited the service, but you took all the chances. You owed me a duty, but I owed none to myself." Dysinger v. Cincinnati, S. & M. R. Co., 93 Mich. 646, 53 N. W. 825. As stated by another court, the law does not impose on a master the duty of informing his servants of all dangers in and about the premises where they are required by his authority to perform labor. The presumption is that the em- ployee understands the nature and dangers of the employment when he engages in the service, and if not, that he will inform himself. It would be wholly impracticable for railroads and manufacturers to employ men of experience to inform each of the hands that any particular act he is required to perform is dangerous. This was said where a brakeman was injured while attempting to couple ears at a side track where there was a platform for loading stone. The platform was located close to the track. It was urged he did not know its distance therefrom and the company was neghgent in not informing him of the danger. Chicago, R. I. & P. R. Co. v. Clarke, 108 111. 113. See also chapter on assumed risk, structures, where niunerous cases are given. Where a brakeman sought em- ployment, professing an experience of twenty-seven days, and had been at work for defendant over a month prior to receiving injury, where cars with double dead woods were in common use, frequently saw them, worked on trains con- taining them, and at the time of his injury saw them on the ears, ap- preciated the danger in attempting to couple them and attempted the act in the manner that it should be done, as he testified, that is, by reaching under the dead woods, it was held that the facts did not 650 Masteb and Servant. §301 men," etc." car repairers,*^ deck hands on a vessel,^ show negligence on the part of the company in failing to warn or instruct. Fenlon v. Duluth, S. S. & A. R. Co., 108 Mich. 284, 66 N. W. 51. Where a brakeman was injured while making a flying switch, and it was claimed that hp was inexperienced and lacked knowledge of the dangers attending the performance of the act, and that his inexperience and want of knowledge was known to the offt- cers of the defendant company when he was employed, it was held that he could not charge the con- sequences upon his employer. It was said that it cannot be held that the company is guilty of greater negligence in employing an inexperienced brakeman than he is in soUoiting and accepting such employment; that experience in any line of business cannot possibly be gained in any other way than through actual employment in it; and that by entering the employ- ment of the company as a brake- man he held himseE out as compe- tent to perform the duties as such. McDermott v. Atchison, T. & S. F. R. Co., 56 Kan. 319, 43 Pae. 248. 85. Missouri P. R. Co. v. Watts, 63 Tex. 549; Watson v. H. & T. C. R. Co., 58 Tex. 434. Upon a second appeal the court stated, in the first case cited, that the em- ployer knew that the employee was ignorant of the dangerous char- acter of the service when he sought the employment, and said that, to impose upon the servant the duty of inquiry about an unseen and unsus- pected danger in order to entitle hiTTi to, information possessed by the master and known by him to be needed by the servant, is a re- striction upon the rule not war- ranted by reason nor supported by authority. Missouri P. R. Co. v. Watts, 64 Tex. 549. 86. A party accepting employ- ment as a deck hand, holds out to the employer that he is competent to discharge the duties of isueh employment, and incurs all neces- sary and reasonable liabilities to accidents incident thereto, and if at the time of hiring nothing is said as to his inexperience, the employer has a right to presume that he is familiar with all the duties of a deck hand. Sunney v. Holt, 15 Fed. 880. See also O'Neil v. St. Louis, I. M. & S. R. Co., 9 Fed. 337, 3 Mc- Crary 423. 87. A workman is presumed to know whether the machinery oper- ated by him is safe or unsafe, and what efl:ect its operation is Kkely to have upon surrounding objects. Want of reasonable care in ascer- taining these facts wiU. constitute neghgenee on his part. This rule was applied to a workman whose duties required him to use a steam hammer, which, after being re- paired and he had resumed its use, jarred loose from overhead a beam which had been temporarily used while making the repairs, and which workmen had negligently failed to remove, and which fell upon him. Reading Iron Works v. Devine, 109 Pa. St. 246. Where an employee in a factory was injured by means of a set screw upon a re- volving shaft, his duties not being § 301 Instructing and Wabning Seevant. 651 Where servant holds himself out as competent though stating his inexperience. There is a distinction to be observed in a ease where the master has knowledge that a servant is inexperienced in the particular work, which he undertakes, and one where the servant makes known to the master his inexperience but holds himself out as competent to perform it. In the latter case he voluntarily undertakes to perform such duties, exercising his own judgment as to his qualification or ability to perform them, and hence cannot charge his employer with the consequences of his want of knowl- edge.'* By another coiu*t it was held that the fact that a saw mill hand had requested the manager after he had been for some time employed as an oiler in the mill, to retain him in that capacity, did not show that he represented himself as competent for such work, and hence assumed all the risk in the absence of evidence that he was retained at such risk on account of his request.*' Servant transferred to other work. So where a servant is transferred to other and different work, without objection or notice of his incompetency, the connected with the use of the regularly in use by his employer, machinery, it was said that when he as far as these things were open and entered the defendant's service he obvious, so that they could be impliedly agreed to assume all the readily ascertained by such exam- obvious risks of the business, in- ination and inquiry as one would eluding the risk of injury from the be expected to make if he wished kind of machinery then openly to know the nature and perUs of tie used; that it was not material service in which he is about to whether he examined the machinery engage. Rooney v. SewaU & Day before making his contract or not; Cordage Co., 161 Mass. 153, 36 that he could look at it if he choose, N. E. 789. or he could say: "I do not care to 88. McDermott v. Atchison, T. examine it; I will agree to work in & S. F. R. Co., 56 Kan. 319, 43 this mill, and I am willing to take Pac. 248. my risk in regard to that." In 89. Guinard v. Knapp-Stout either case he would be held to & Co. Co., 90 Wis. 123, 62 N. W. contract in reference to the arrange- 625, 48 Am. St. Rep. 901. ment and kind of machinery then 652 Mastee and Servant. §302 master may ordinarily presume that he is qualified to per- form such work without instruction or warning.'" § 302. Knowledge of master of defect or danger. The master is bound to warn his servant only as to dangers or defects of which the master has knowledge or of which he should have known by the exercise of reason- able care and caution." 90. An employee of mature years who is rem^oved from one line of employment and set to work in another without objection, and is then injured while operating ma- chinery with which he was un- famihax, or which he did not know how to operate, cannot recover from his employer for such injuries, unless his employer knew that he did not know how to operate the machine, or, having informed his employer of his inexperience, he fails to instruct him. If a servant is ignorant of the method of operat- ing machinery with which he is to work, it is his duty to inform his employer, and if he conceals his inexperience and undertakes to work with machinery with the operation of which he is unfamiliar and is injured by reason of his inexperience, the employer is not answerable therefor. When a per- son undertakes to engage in a master's service and to perform certain duties, the master has a right to assume that he is quali- fied to perform the duties of the position which he seeks to occupy and competent to apprehend and avoid all the apparent and obvious hazards of such service; and the same presumption arises when a servant, employed to perform labor in one particular branch or depart- ment of a factory, is transferred by the master to another branch or department, and assigned to perform other and different work from that for which he was origin- ally employed. It must be pre- sumed that a servant wiU not under- take to perform labor or operate machinery concerning which he has no knowledge or experience. Hence, his willingness to undertake the work is sufficient to warrant the master in assuming that he is competent, unless it is shown that the master knows to the contrary. Arcade File Works v. Juteau, 15 Ind. App. 460, 40 N. E. 818, 44 N. E. 326. This was said where an employee without objection en- gaged in operating a machine. 91. Southwestern Tel. Co. v. Woughter, 56 Ark. 206, 19 S. W. 575; Stuart v. West End St. R. Co., 163 Mass. 391, 40 N. E. 180; A. H. Jacoby & Co. v. WiUiams, 110 Va. 55, 65 S. E. 491; Crown Cotton MiUs v. McNaUy, 123 Ga. 35, 51 S. E. 13. It was held that it was the duty of an employer to notify his servant of the vicious character and habits of a steer which the servant was directed to assist in placing in a pen, where it appeared the viciousness of the animal was known to such em- ployer and unknown to the work- man. International & G. N. R. Co. V. Smith, 30 S. W. (Tex. Civ. §302 IwSTBtrCTIKG AND WaENINQ SbEVANT. 653 App.) 501. It was teld that a mechanic employed by an inventor to move a machine in the latter's presence, was entitled to be in- structed as to the dangers con- nected with the act he was re- quired to do, if the inventor knew or ought to have known of the danger and the employee did not know or have reason to know of such dan- ger. (The machine fell from im- perfect construction.) Walsh v. Peet Valve Co., 110 Mass. 23. An employee operating a double wobble saw in a factory, consisting of two saws placed side by side, separated only by a thin washer, was injured by pieces of timber being worked becoming wedged between the saws, throwing his hand upon the saw. There was danger from this source known to the employer and unknown to the employee who had experience about machinery but had no experience with such a saw. He had not been warned. Held a question for the jury. Chilson v. Lansing Wagon Works, 128 Mich. 43, 87 N. W. 79. If an electric light pole is main- tained near a street railway track so near aa either not obvious or extraordinary and dangerous to an employee on ears, it is the duty of the company to warn them of the danger incident thereto. Savage V. Rhode Island Co., 28 R. I. 391, 67 Atl. 633. Compare North Birmingham St. R. Co. v. Wright, 130 Ala. 419, 30 So. 360. If the work is new to the servant he should be instructed in it, where the master is cognizant of the fact, or it is not disclosed that the serv- ant is inexperienced, and if he is not acquainted with the latent dangers incident to it, they should be explained to him. Bannon v. Lutz, 158 Pa. St. 166, 27 Atl. 890. If the master knows that a servant does not know how to do a danger- ous work in a safe manner and in doing it is adopting a specially dangerous method, he should be instructed and warned of the danger. Disalets v. International Paper Co., 74 N. H. 440, 69 Atl. 263. It would seem the Minnesota court carried the doctrine of the duty to Lastruct and warn to its utmost limit, where a section hand of long experience was injured by a rail, which had become sprung, having a bend or kink, from becom- ing too tight in position, upon being removed springing outward, a distance of fifteen feet. It appeared he was aware of the fact that the rails in the situation of this one would, when dislodged, spring out of position a short distance. He had frequently observed this in his work, but no occurrence of this particular kind had ever come to his observation (by which I assume is meant a rail flying such a dis- tance), and he had never been instructed or warned that it was likely to occur. With respect to knowledge of the part of the defendant, it is said: "There is no evidence that its superior of&cers did not know the facts or did not know and understand the peculiar action of the rails under such conditions. ... It does, how- ever, appear that its roadmaster knew of an instance where a rail had sprung out six or eight feet under similar conditions, though the kink was caused by heat and not by pressure as in the case at bar. This was sufficient, if notice to it was necessary, to require an inves- 654 Masteb and Servant. §302 Actual knowledge is not necessary,'^ but it is sufficient that facts exist which charge the master with notice. Notice of the defect several hours before the accident has been held to create the duty to wam.'^ WhUe it is the duty of a master to warn a servant of hidden dangers or those of which the servant may be supposed to be ignorant, this duty however, arises only where the master has some reason to beUeve the servant is ignorant of the danger and needs to be warned. The master may assume that the servant has the knowledge common to the rest of mankind.^^ And it has been held that to render a master liable for not anticipating a danger to a servant who was injured thereby, and warning against it, the master's knowledge tigation to leam the extent of the dangers to which its servants werei exposed and inform them thereof." It thus appears that it was not within the experience of any one, neither defendant nor plaintiff, that a rail under any conditions would spring out and fly so great a distance as fifteen feet. It is not suggested what character of investi- gation would have disclosed such a tendency, or that any investi- gation would have disclosed it. The plaintiff evidently realized there was some danger and assumed a place of safety, which any one would have deemed ample and sufficiently safe. BeU v. Northern Pac. R. Co., 112 Minn. 488, 128 N. W. 829. 92. Vohs V. Shorthill & Co., 130 Iowa, 538, 107 N. W. 417; Smith V. Oxford Iron Co., 42 N. J. L. 467, 36 Am. Rep. 535. Where a fuse used was qiiicker in its action than that previously furnished a miner, and whether the master should have known and so in- structed such miner, were questions properly for the jury. Hedlum v. Holy Terror Min. Co., 16 S. Dak. 261, 92 N. W. 31. The fact that the defendant's assistant foreman knew that a hoist fell, through the negligence of an employee, some days before injury to another em- ployee, by a fall of the hoist, did not charge the employer with knowledge so as to re- quire a warning to his servants of the danger. Bauer v. American Car & Foundry Co., 132 Mich. 537, 94 N. W. 9. No duty rested upon the master to warn an employee as to the explosion of a blast where fired after 12 o'clock noon, the rules requiring employees to leave their place of work in time to be at the shaft at 12. El Paso Gold Mia. Co. V. Ewing, 36 Colo. 513, 86 Pac. 119. 93. Denver, T. & Ft. W. R. Co. V. Smock, 23 Colo. 456, 48 Pac. 681. 94. Johanson v. Webster Mfg. Co., 139 Wis. 181, 120 N. W. 832. § 303 Insteucting and Waening Servant. 655 of tlie danger must have been or ought to have been supe- rior to the servant's.'^ When knowledge of danger chargeable to master. Where the master has no actual knowledge, the duty to warn exists where the conditions are such that he is chargeable with knowledge by the exercise of reasonable care and caution.'^ To charge the master, the danger should be such as to suggest itseK to a man of ordinary prudence." There must be something sufficient to charge an ordinarily prudent employer with knowledge of the danger.'^ It has been held that the employer is presumed to know the danger to which the employee will be subjected.'^ § 303. Knowledge of master of incapacity or inexperience of servant. In order that the master may be properly charged as neghgent upon the ground of failure to warn and instruct his servant as to the dangers connected with his employ- 95. Ahem v. Amoskeag Mfg. however, that it was necessary to Co., 75 N. H. 99, 71 Atl. 213, 21 show that the plaintiff was actually L. R. A. (N. S.) 89. See also Roess- ordered into the dangerous place, ler & Hasslacher Chemical Co. v. Coates v. Boston & M. R. Co., 153 Peterson, 67 C. C. A. 295, 134 Mass. 297, 26 N. E. 864, 10 L. R. Fed. 789. Where a brakeman was A. 769. ordered to separate coal cars from 96. Vohs v. Shorthill & Co., box cars, and in performing the act 130 Iowa, 538, 107 N. W. 417. to ride upon the cars, and was 97. Nelson v. Allen Paper Car injured while attempting to get on Wheel Co., 29 Fed. 840. the car by reason of a jaw strap 98. Diehl v. Standard Oil Co., being missing, it was held that the 70 N. J. L. 424, 57 Att. 131. question of defendant's negligence 99. Carter v. Fred W. Dubach was proper for the jury, upon the Lumber Co., 113 La. 239, 36 So. ground that the defendant, know- 952. However, a common carrier ing the condition of the car, put a is not chargeable with notice that conductor there with men under Texas cattle which it ships are him, without warning him or them vicious and dangerous so as to be of the defect, while having reason- liable to injure employees. Clark v. able grounds to anticipate that such Missouri, K. & T. R. Co., 179 Mo. orders would be given by the con- 66, 77 S. W. 882. ductor as were given. It was said, 656 Mastee and Servant. § 303 ment, and made liable for residting injury, it must be made to appear that lie knew, or by the exercise of rea- sonable care and observation might have known, of the inexperience and disquahfication and immature judgment of the servant employed.^"" Thus, in the absence of evidence that the master knew of the inexperience of an employee and his ignorance of the dangers connected with the use of a machine which he was employed to operate, a jury cannot be permitted, in deciding the question, to rely upon mere inference, con- jecture or their own personal experience. ^"^ The duty to instruct as to dangers exists only when the master knows or ought to know that the servant is ignorant of such dangers. ^"^ In the absence of notice to the contrary, a master has the right to assume that the experience of a servant and his knowledge of natural forces are adequate for his protection from the ordinary results of the operation of such forces, incident to the employment, and he may rely upon this assumption not only at the inception of the servant's employment but also at every stage of the employment.^"* And he may assume, in the absence of actual notice, that an adidt employed as a laborer around machinery is not ignorant of the dangers naturally attendant upon his work.i"^ The mere fact that an employee is injured because he was inexperienced and ignorant of the danger and hazard 100. Pittsburg, C. & St. L. R. 102. Tompkins v. Marine En- Co. V. Adams, 105 Ind. 151, 5 N. gine & Maeh. Co., 70 N. J. L. 330, E. 187; Kloohinski v. Shores Lum- 58 Atl. 393; Grayson-McLeod Lum- ber Co., 93 Wis. 417, 67 N. W. 934; bar Co. v. Carter, 76 Ark. 69, 88 Sladky v. Marinette Lumber Co., S. W. 597. See also Fletcher Bros. 107 Wis. 250, 83 N. W. 514; Har- Co. v. Hyde, 36 Ind. App. 96, 75 ney v. Chicago, R. I. & P. R. Co., N. E. 9. 139 Iowa, 359, 115 N. W. 886; 103. Sabere v. Benjamin Atha Johanson v. Webster Mfg. Co., 139 & Co., 75 N. J. L. 307, 68 Atl. 103. Wis. 181, 120 N. W. 832. 104. Murphy v. Rockwell En- 101. Sherman v. Menomonie gineering Co., 70 N. J. L. 374, 57 River Lumber Co., 77 Wis. 14, Atl. 444. 45 N. W. 1079. §303 Instbucting and Wabning Sebvant. 657 is insufficient to cliarge the master with. Hability for injur- ies received, on the grovmd of faUure to instruct and warn. It must further appear, and if there is a special verdict the issue must be found, that the master, well knowing the plaintiff to be without skill and knowledge of the work, and well knowing its dangerous character, failed to so inform the employee; for unless the master knows, or ought to know, of some occasion for information or in- struction, a neglect to impart any could not be regarded as the proximate cause of the injury. ^"^ Of course, if a servant, especially a railroad employee, in order to get employment, pretends to have had expe- rience in the work, the duty to warn is only that required as to experienced servants. ^"^ For instance, an employer ordinarily may assume that a servant has sufficient knowledge to know the danger of getting his hands caught in exposed gearing."^ 105. KloeMnski v. Shores Lum- ber Co., 93 Wis. 417, 67 N. W. 934. 106. It was held that a brake- man who, in order to get employ- ment as such, pretended an ex- perience which he did not have, could not maintain an action against his employer for injury re- ceived while performing the duties of a brakeman in an improper and careless manner. Stanley v. Chica- go & W. M. R. Co., 101 Mich. 202, 59 N. W. 393. 107. A woman thirty years old, who spoke English but imperfectly, having no knowledge of machinery or its workings or of its dangers, and no instruction as to the working of the machinery, assumed the risk of uncovered cog wheels where injured by contact with them a day and a half after her employment. It was said that as the woman was possessed of ordinary intelligence, the employer has a right to assume that she had that knowledge which 1 M. & S. — i2 is acquired by common experience and was under no obhgation to tell her, that if she put her hand between revolving cog wheels she would be hurt. Ruchinsky v. French, 168 Mass. 68, 46 N. E. 417. An employee operating a machine called a mangle, nineteen years old and of average intelligence appar- ently, is not supposed to need in- struction as to the danger of getting her hand caught between the re- volving rolls, and where the hand of such employee did get between the rolls when her attention was attracted by some person coming into the room at the time, the injury was not caused by want of instruc- tion but by the inattention to her duties. Gaudet v. Stansfield, 182 Mass. 451, 65 N. E. 850. A master has a right to assume that an em- ployee of mature years who had frequently worked upon the appli- ance (a crane) which was simple, and who knew how to manage it, 658 Master and Servant. §304 § 304. Knowledge of servant of danger. It is elementary that the master need not warn a serv- ant of a danger of which the servant already has knowl- edge,^"^ or of which he has equal means with the master of knowing about, ^"^ or where the servant knows the dan- ger as well as the master,"" or where the servant has the opportunity to discover the danger by observation if he exercises ordinary care to protect himself from harm."^ that he needed no further instruc- tion about the machine. The employee was injured while at work about the machine by his hand be- coming caught in the gearing which was in full sight. Korsman V. Rice, Barton & Tales M. & I. Co., 198 Mass. 126, 84 N. E. 311. 108. Daniels v. New England Cotton Yarn Co., 188 Mass. 260, 74 N. E. 332; Kiser v. Hot Springs Barytes Co., 131 N. C. 595, 42 S. E. 986; Hanson v. HammeU, 107 Iowa, 171, 77 N. W. 839. See also, supra, as to obvious risks. 109. Cartledge v. Pierpont Mfg. Co., 120 Ga. 221, 47 S. B. 586. , While it is unquestionably the duty of the master to communicate a danger of which he has knowledge and the servant has not, yet there are corresponding duties on the part of the servant. The master is not liable to a servant who is capable of contracting for himself and knows the danger attending the business in the manner in which it is carried on. It is his duty to use ordinary care to protect himself. He is under as great an obligation to provide for his own safety from such dangers as are known to him or discoverable by the exercise of ordinary care on his part as the master is to provide for him. It is his duty to go about his work with his eyes open. He can- not wait to be told, but must act afBrmatively. He must take ordi- nary care to learn the dangers that are likely to beset him in the serv- ice. He must inform himself. This was said to be the law every- where. Wormell v. Maine Cent. R. Co., 79 Me. 397, 10 Atl. 49, 1 Am. St. Rep. 321; O'Hare v. Cocheco Mfg. Co., 71 N. H. 104, 51 Atl. 257, 93 Am. St. Rep. 499; Cunningham v. Bath Iron Works, 92 Me. 501, 43 Atl. 106. As to the engineer and fireman of an engine sent to assist in putting out the fire on a burning railway bridge, the exact location of which they knew, there was no duty on the part of the railway company to display sig- nals or give other warning of the location and condition of the bridge. Kath v. Wisconsin Cent. R. Co., 121 Wis. 503, 99 N. W. 217. 110. Reynolds v. Grace, 115 lU. App. 473. See also Gehl v. Pittsburg Coal Co., 128 N. W. (Mich.) 209. 111. Bryant v. Great Northern Paper Co., 100 Me. l71, 60 Atl. 797. The duty to instruct and warn only applies where there is a danger of which the employee through youth or inexperience is ignorant, and which he cannot rea- sonably be expected to discover by §304 Insteucting and "Wabning Servant. 659 If the servant has as ranch knowledge of the danger the exercise of ordinary care. Rooney v. Sewall & Day Cordage Co., 161 Mass. 153, 36 N. E. 789; Stuart V. West End St. R. Co., 163 Mass. 391, 40 N. E. 180; A. H. Jaeoby & Co. v. Williams, 110 Va. 55, 65 S. E. 491. An employee was seriously injured while breaking up and removing caustic soda which had become hard and brittle in a pit, in which it leaked from a kettle while in liquid form, by a piece of it flying up and striking him in the eye, the substance possessing burn- ing and corrosive qualities. It was held a proper question for the jury whether the plaintiff, a common laborer, understood and appreci- ated the dangerous character of the compound, and hence whether or not it was the duty of the master to have warned him thereof. Dasho V. Michigan Alkali Co., 163 Mich. 612, 128 N. W. 764. An expe- rienced blaster in a quarry, using a steel rod in loading blast holes, with powder, presumptively has knowledge of the nature and con- dition of blast holes as to roughness of the sides and of sharp projections of rocks in the walls, and is charge- able with knowledge that the use of a steel rod might cause a spark from contact with such projections, re- sulting in an explosion, and hence the risk being obvious to him, no duty devolved upon the master to warn him of such danger. Brotzki v. Wisconsin Granite Co., 142 Wis. 380, 125 N. W. 916, 27 L. R. A. (N. S.) 982. Where a servant has actually operated and seen others operate an implement or machine often enough to enable him by the exercise of ordinary intelligence and care to learn how to avoid being injured by it, or where the mode of operating it is so simple that a person of ordinary inteUigenee or care can at once perceive the safe and proper mode of operating it, there is no duty resting upon the master to instruct him. This rule was applied to a section hand who had only worked on a railroad for a week, and who was injured by being struck by the lever while he was in a stooping position throwing aside a hammer lying loose on the floor of the car. Jones v. Louisville & N. R. Co., 95 Ky. 576, 26 S. W. 590. It was held not criminal negligence in a corporation not to give warning to the master machinist employed in the establishment that there was danger of fire in the gas room, or that there was danger that the walls would fall in case fire occurred, it not being alleged that he was ignorant of the danger or of the causes that produced it. Allen V. Augusta Factory, 82 Ga. 76, 8 S. E. 68. Where an employee who had been engaged for defend- ant in the same work for four and a half years was injured while he was shoveHng coal in a shed by a load of coal dumped through a hatchway of the roof falling upon him, and he knew such was the way the work was done but did not know the exact time when it would be done, and he had never been warned as to the time, it was held there was no breach of duty on the part of the defendant. Flynn v. CampbeU, 160 Mass. 128, 35 N. E. 453. Where, in operating a ma- chine in feeding brass sheets into the rollers, the edges of the sheets 660 Master and Servant. §304 and means of avoiding it as the master, there is no duty toicstruct."^ This rule applies to minor servants as well as others except as hereinafter stated."* were frequently rough and uneven, as the operator well knew, but only occasionally, sometimes at intervals of several days, a sharp sliver formed longitudinally on the edge, and of this the operator was igno- rant, the danger from the latter be- ing entirely different from the former, and the operator's hand was caught by one of such slivers and drawn in the machine, it was held the question of defendant's negli- gence in not warning the operator as to this danger, was properly for the jury. Anderson v. Chicago Brass Co., 127 Wis. 273, 106 N. W. 1077. Instruction and warning were not required where a servant feeding bags into a printing ma- chine, who had been engaged in similar work for several months, as to the danger of her fingers being caught by the nippers grasp- ing and drawing the bags into the machine. Kuieh v. Milwaukee Bag Co., 139 Wis. 101, 120 N. W. 261. 112. Brownwood Oil Mill v. Stubblefield, 115 S. W. (Tex. Civ. App.) 626. An employee engaged in firing a blast in a hole in a bank of earth, was injured while in the act of tightening the fuse, by the explosion of the blast from the fuse becoming ignited, while he was attempting to so ignite it, by means of a candle tied to a stick 14 or 15 feet long, which he inserted in the hole to reach the fuse, which would be a distance of ten feet or over. After inserting the candle, he could not tell whether he was holding the candle blaze at the end of the fuse or whether further back. The alleged ground of neg- ligence was that the system was unsafe, and that the plaintiff was not instructed or warned of the hazards of doing the work in the manner instructed. It was held that the evidence was sufiQcient to sus- tain these charges of negligence and also that he did not assume the risk. That he must be held to have known and appreciated the fact that if his lighted candle came in contact with the fuse it would explode the blast. The court say, however, "this is not the test; that the question is did he know and appreciate the danger of the fuse becoming ignited without his dis- covering it before the blast would explode?" Certainly such is a mat- ter of common knowledge. A per- son even without ordinary intelli- gence would know, where he could not see, that placing a blazing can- dle in a hole where there is a fuse, that it was likely to become ignited, without his knowing the exact mo- ment, because how could he know if he coidd not see, hence the em- ployee must have known and he must also have appreciated the danger, for the result of the ignition would be the explosion of the blast. No warning that could have been given him would have conveyed to his mind other than what he knew. Spino V, Butler Bros., 129 N. W. (Minn.) 590. 113. See infra, §310. § 304 Insteucting and Waening Sebvant. 661 It may frequently happen, however, that the dangers of a particular position or mode of doing work are great, and are apparent to persons of capacity and knowledge of the subject, and yet a party, from youth, inexperience or general want of capacity may fail to appreciate them. It would be a breach of duty, as stated by a court, on the part of a master to expose a servant of this character, even with his own consent, to such dangers, imless with instruc- tions and cautions sufficient to enable him to comprehend them and to do his work safely with proper care on his part."* The presumption is, where the contrary does not appear, that the servant fully understands the nature of the work even where extra hazardous, and that his com- pensation was fixed with reference to the risks and perils of the service undertaken by him. The master, however, is not justified in knowingly or negUgently exposing the servant to any extraordinary or unreasonable peril, from which the servant from want of knowledge, skill or physical ability could not by the use of ordinary care and prudence under the circumstances, guard himself."^ Knowledge of danger in general is not necessarily knowl- edge of a particular danger. Thus, knowledge erf an employee that it was dangerous to come in contact with saws is not necessarily equivalent to knowledge that his hands were in danger of coming in contact with the saws in performing a certain duty in connection with the ma- chine. ^^^ But where the danger is obvious, and known, the fact that a servant of full age and ordinary intelligence may not have reahzed all the possible consequences of the danger, or that the dangers were not as obvious to him as to an experienced workman, is immaterial so far as the duty to warn and instruct is concerned."' 114. Sullivan v. India Mfg. 116. Greenville Oil & Cotton Co., 113 Mass. 396; American Co. v. Harkey, 20 Tex. Civ. App. Strawboard Co. v. Faust, 11 Ind. 225, 48 S. W. 1005. App. 638, 39 N. E. 628. 117. Dickenson v. Vernon, 77 115. State V. Malster, 57 Md. Conn. 537, 60 Atl. 270. 287. 662 Mastee and Seevant. §§ 305, 306 Source of knowledge. If the employee has knowledge of the danger, the source of such knowledge is immaterial; and the fact that the master had failed to instruct and warn him thus becomes immaterial."* § 305. Particularly hazardous agencies. Where an employer is required to use particularly haz- ardous agencies, he must give full information to the serv- ant as to dangers arising therefrom, so as to enable the servant to avoid such dangers by the use of due care."^ § 306. Promise to warn. The master is liable where the servant is injured by the failure of the master to keep his promise to warn the servant as to danger. ^^^ 118. Bair v. Heibel, 103 Mo. App. 621, 77 S. W. 1017; Worthing- ton V. Goforth, 124 Ala. 656, 26 So. 531. 119. Welch V.Bath Iron Works, 98 Me. 361, 57 Atl. 88. 120. Bradley v. New York Cent. R. Co., 62 N. Y. 99; Wen- dell V. Pennsylvania R. Co., 57 N. J. L. 467, 31 Atl. 720; Missouri Pae. R. Co. v. Williams, 75 Tex. 4, 12 S. W. 835, 16 Am. St. Rep. 867. Where an employee in a coal mine engaged in hauling coal cars running on rails, had no knowledge of the location of an incline which necessitated the use of a brake, having been ordered to proceed with the assurance that the master would accompany him and show him where to apply the brake, which he failed to do, such neglect on the part of the master was actionable negligence; but where such assurance was given by a fellow-servant that he would go with him and show him the danger and what to do and he 'so relied upon such assurance and proceeded, he assumed the risk notwithstand- ing the duty of warning and in- struction on the part of the master. ColUngwood V. Illinois & I. Fuel Co., 126 Iowa, 537, 101 N. W.283. A master having promised an em- ployee engaged in the plastering part of the inside of the elevator shaft, to let him know before the elevator should be put in operation, and neglecting to do so the employee was injured by th^ descent of the elevator, the verdict for the plaintiff was sustained. Larson v. HagUn, 103 Minn. 257, 114 N. W. 958. The theory upon which an employee brought his action for injuries sustained against his master was that he was a novice, and informed defendants' serv- ant, who was a superintendent or foreman over a particular crew of men, who hired him, that he did not know which wires were danger- ous, and was promised that he §§ 307, 308 Instktjcting and Wabning Seevant. 663 § 307. Proximate cause. In order to recover on the ground of failure to instruct and warn, such failure must have been the proximate cause of the accident. ^^^ § 308. Presumption as to warning having been given. In an action for the death of a servant, it was said that there does not arise a presumption that he was warned should be informed, and that this was a duty that the master could not avoid liability for, if not per- formed. Stated by Hooker, Justice : "K the defendant is to be found guilty of negligence, it must be upon the ground (1) that the plaintiff being a novice was not instructed as to the danger and proper methods of work, or (2) that he was allowed to work in ignorance of the fact that hve wires were upon the particular pole" (where he was when injured). The plaintiff's evidence, however, was that he did not know how to handle hot wires; that he had never worked among them previous to his employment, and it was not disputed. It was further said: "Therefore when he was employed it was the duty of the defendant to instruct him of the dangers he would encounter and how to avoid them, the omission of which the master could not escape liability by delegating it to another, if the omission was the cause of the accident." The plain- tiff was injured in climbing a pole to aid in soldering a wire, and in attempting to straddle the wire raised up too high and his body came in contact with two high voltage wires, which were strung upon the top cross bars of the poles. It was further stated: "It is clear, however, from the admitted facts, that this plaintiff was not hurt in handling hot wires, and it is also clear that he knew the danger of coming in contact with wires of high voltage, which he knew were often to be found on the poles. So for the purposes of this ease, the failure to instruct is unimportant and cannot be made the ground for recovery on this record. It appears, however, that the majority of the court, while agreeing with Justice Hooker and Broke, that the judgment should be reversed for errors in the charge, did Hot agree with him in the matter of construc- tion of the contract or the effect of the promise upon the master. They were of the opinion that the promise should be construed to mean that when the plaintiff's duty required him to go upon a pole, either such foreman or his assistant would notify him if there were live wires of a dangerous voltage. That such promise was binding upon the company. That the failure to warn, independent of the contract promise, would not charge the master with negligence. Arger- singer v. Commonwealth Power Co., 129 N. W. (Mich.) 889. 121. Fronk v. J. H. Evans City Steam Laundry Co., 70 Neb. 75, 96 N. W. 1053. 664 Master and Seevani § 308 of the danger, from the absence of evidence that he was not warned, the presumption being that the servant was in the exercise of due oare.^^^ Such rule was declared by a court where the burden of proof as to contributory negligence rests upon the defend- ant. In many of the states, the burden of proof in respect to such negligence is on the plaintiff. If the reason stated by the court first mentioned is to be apphed, that is, the presimiption of due care, then in such other states the burden would rest upon the plaintiff to show that he had not been warned or instructed. However, there ought not to be any difference in the strength of presumptions, and if it be true that the presumption is that the servant was in the exercise of due care, the presunaption ought to be equally as strong that the master was in the exercise of due care and had properly performed his duty, espe- cially as the burden is upon the plaintiff to prove affirma- tively the master's negUgence. The following iastruction ia an action for the death of a minor employee in a mine, was held to correctly state the law: "If you find from the evidence that deceased was young and inexperienced, and that the place where he was working when killed was attended by danger, and that danger was known or should have been known to the defendant and was not fully known to deceased, and was not fuUy known to a person of his age and experience, or was not fully appreciated by him, and that his incompe- tency to judge of such danger and fully appreciate the same was known or should have been known to the defendant, then the burden of proof is on the defendant to prove to your satisfaction by a preponderance of the evidence that it d d ful y inform warn and instruct deceased concerning such danger, so that he might have fuUy imderstood and appreciated the same and have exercised care in proportion to such danger." ^^^ 122. Meier v. Way, Johnson, 123. Pearce v. Quincy Mining Lee & Co., 136 Iowa, 302, 111 Co., 149 Mich. 112, 112 N. W. 739. N. W. 420, 125 Am. St. Rep. 254. §309 Iksteucting and Wabning Seevant, 665 It was held, however, by another court, that the evi- dence should show that there was in fact a failure to in- struct where instruction was required. This is a fact which must be proved and not left to conjecture. ^^* § 309. Sufficiency of instruction or warning. The instruction and warning should be such as seems necessary for the safety of the employee, ^^^ such as will 124. McMillan v. Grand Trunk R. Co., 65 C. C. A. 165, 130 Fed. 827. 125. An employer is under no obligation to warn an employee of dangers which are obvious nor to instruct him in matters he may fairly be supposed to understand. Nor is it the duty of the master to admon- ish the servant to be careful when the servant well knows his danger and the importance of using care to avoid it. It is the duty of the servant to exercise care proportion- ate to the danger of his situation as he understands it, and if he fails to do so the fault is his and not the master's. When the work of the servant exposes him to danger of which he is ignorant, and which from youth or inexperience he is manifestly incapable of compre- hending, without assistance, it is the duty of the master if he knows or ought to know of it, to give him such warning and instruction as are necessary for his safety. In deter- mining the master's duty in such a case the inquiry is what instruction does the servant appear to need? Is there reason to believe him igno- rant of anything which for his pro- tection he ought to know, or is he incapable of appreciating the risks from what he sees around him? In the absence of anything to show to the contrary, the master has a right to assume that he knows those facts of common experience with which ordinary persons of his age and appearance are familiar. In hiring a boy of twelve years or over and apparently of average intelligence an employer is not called upon to teU him if he holds his hand in the fire it wiU be burned, or strike it with a sharp instrument it will be cut, or thrust it between the teeth of revolving cogs in the gearing of a miU it wiU be crushed. Ciriack v. Merchants' Woolen Co., 151 Mass. 152, 23 N. E. 829, 6 L. R. A. 733, 21 Am. St. Rep. 438. An insufficient warning was stated to be in legal effect, equivalent to no warning. That it should be suf&ciently specific to apprise an ordinarily prudent person, having regard to the experience of such person, of the danger to be appre- hended. Hence it was held a ques- tion for the jury where the facts were that a hose had been detached from a city water supply pipe and placed into a tank containing a poisonous liquid, and an employee accustomed to drink from such hose, while so using the hose, drank the poisonous liquid which caused his death, whether the telling of such employee not to go down for wash-water that night as he was running the solution over into another tank, was a sufficient warn- 666 Mastee and Servant. § 309 enable him to avoid injury. ^^^ The instruction and warning must be accompanied with such explanation as will enable the servant to imderstand it.^" And where required to perform dangerous work, the master must instruct him fuUy as to the safest mode of doing such work, and warn him of Uabihty to special danger, of which he is not aware. '^^ This duty apphes to the work at which the servant is employed at the time of his injury and is not excused by general instructions regarding the danger of other work at which he was first employed. ^^' It is manifestly impossible for an employer to anticipate in advance every possible risk or accident which may happen in the use of a given machine, and if he gives such general instructions and cautions as wiU enable the em- ployee by the use of his intelhgence to comprehend the dangers which threaten him in his work, he must be held to have discharged his duty.^'" Especially should specific instructions and warnings be given where the employment is attended with great and unusual danger, as where explosives are used.^" ing under the circumstances. Fidel- 131. The duty of a master in ity Trust Co. v. Wisconsin Iron & the use of explosives, is very Wire Works, 129 N. W. (Wis.) forcibly stated in an opinion ren- 615. dered in the Federal Supreme 126. Atlas Engine Works v. Court. In fact, such duty is not Randall, 100 Ind. 293, 50 Am. Rep. there confined to explosives, but to 798. other employments which are at- 127. Honlahan v. New Amer- tended with great and unusual dan- ican File Co., 17 R. I. 141, 20 Atl. ger. Thus it was said: "Ocoupa- 268; Small v.Brainerd Lumber Co., tions, however important, which 95 Minn. 96, 103 N. W. 726; Rum- cannot be conducted without neces- mel V. DUworth, 131 Pa. St. 509, sary danger to life, body or hmb 19 Atl. 345, 346, 17 Am. St. Rep. should not be prosecuted at all 827. without reasonable precautious 128. Mansfield v. Eagle Box & against such dangers afforded by Mfg. Co., 136 CaL 622, 69 Pac. 425. science. . . . Indeed we think 129. Dalm v. Bryant Paper Co., it may be laid down as a legal prin- 157 Mich. 550, 122 N. W. 257. ciple, that in aU occupations which 130. Thompson v. Edward P. are attended with great and un- AUis Co., 89 Wis. 523, 62 N. W. usual danger, there must be used 627. all apphances readily attainabls §309 Insteitcting and Wabning Seevant. 667 The marking of railroad cars as defective is not a suffi- cient warning to an employee coupling them in the night, where the marks are not such as to bring the condemna- tion to his attention. ^^2 Posting warnings in the place of work has been held sufficient,^'' as has an undeUvered telegram,^'* while a known to science for the prevention of accidents, and that the neglect to provide such readily obtainable appliances wiU be regarded as proof of culpable negligence. ... So too, if persons engaged in dangerous occupations are not informed of the accompanying dangers by the pro- moters thereof, or by the employ- ers of labor thereon, and such laborers remain in ignorance of the dangers and suffer in consequence, the employers will also be charge- able for the injuries sustained." An employee in a mine was injured by the explosion of djmamite and dynamite caps, which were in a steam heated building, for the pur- pose of being thawed, caused by heat and jar of machinery, such employee not being connected in any manner with the process or use, and being entirely ignorant of the danger. Mather v. RUlston, 156 U. S. 391, 39 L. Ed. 464, 15 Sup. Ct. Rep. 464. See also Myr- berg V. Baltimore & S. Mining & Reduction Co., 25 Wash. 364, 65 Pac. 539. Where one in charge of the loading and shooting of blasts, in a quarry, instructs an employee how to put the dynamite in the holes, and warns him to be careful, the instruction and warning are sufficient. It is not required that he should specially instruct him not to force dynamite into a hole too small to admit the sticks. Kopf V. Monroe Stone Co., 133 Mich. 286, 95 N. W. 72. 132. Meyers v. lUinois Cent. R. Co., 49 La. Ann. 21, 21 So. 120. 133. Where an employer posts notices in a place where they can be read by employees, cautioning them as to the proper apparel and mode of wearing their hair to avoid the dangers of the work, it is not chargeable with negligence as to injuries occasioned by failure to observe the rules merely because the attention of the injured em- ployee was not called to such notice. A female employee was injured by the braid of her hair being caught in a machine she was operating. Daniels v. New England Cotton Yarn Co., 188 Mass. 260, 74 N. E. 332. 134. Where a work train was sent out to repair damage to railway tracks caused by a storm and the train dispatcher made proper efforts to acquaint the train men with the known conditions of unsafety by sending them a telegram contain- ing such information, the railroad, company performed its fuU duty though the telegram was not de- livered to the trainmen by the sta- tion agent who received it. Graham v. Detroit, G. H. & M. R. Co., 151 Mich. 629, 115 N. W. 993, 25 L. R. A. (N. S.) 326. In this case the duty to warn was considered a delegable one. 668 Master and Servant. §309 printed book of rules has been held insufficient in a par- ticular case. ^'^ It seems that ordinarily a master may assume that his servants understand a ■warning given in English. ^^* The customary way of giving warning by stationing a man at the hatchway of a vessel is not necessarily suffi- cient.^'^ If the instructions are full and proper, of course the master is not liable where the injury to the servant residts from his failure to obey such instructions. ^ '* Particular instances of the sufficiency of instructions in relation to the height of a railroad bridge, ^'^ the liability of a crust in a coal bin breaking, ^^'' the oiUng and operation 35. A printed book of rales warning a brakeman of the danger of standing erect while passing under a certain bridge, was held insufficient as a matter of law to charge a brakeman with assump- tion of the risk of injury from con- tact with the bridge. Gulf, C. & S. F. R. Co. V. Knox, 25 Tex. Civ. App. 450, 61 S. W. 969. 136. Lobstein v. Sajatovioh, 111 lU. App. 654. 137. It cannot be said as matter of law, that stationing a man at a hatchway to call out when material is being lowered in the hold of the vessel as a warning to the men in the hold, where the work is being done hurriedly and attended with great noise, is a sufficient warning, from the fact that such was the cus- tomary way and had heretofore proved a safe mode on that vessel. Hennesey v. Bingham, 125 Cal. 627, 58 Pae. 200. 138. Thayer v. Utica Knitting Co., 183 N. Y. 18, 75 N. E. 577. 139. Notwithstanding a brake- man was told by the yard master that a bridge would not clear a person standing on a low car, and that it was just at the end of the yard limits, when taken in connec- tion with the testimony of the conductor that they afterwards told him the bridge would not clear a man on a high box car, it is not sufficient to require a finding that he was adequately warned. Ft. Worth & R. G. R. Co. v. Kime, 21 Tex. Civ. App. 271, 51 S. W. 558. It did not appear what other or ftirther instruction the master was in duty bound to give him. 140. It was a question for the jury whether the warning that the foreman gave an inexperienced em- ployee was sufficient. The em- ployee had been directed to go into a coal bin and break down the crust that had formed and in doing so the crust suddenly broke letting the mass fall several feet to the bottom of the bin, carrying the employee with it. The only warn- ing given was that given by the foreman who was close to him: ."Ben, don't go out there too far, this thing is undermined. You are liable to go down in the mine." §309 Instettcting and Wabning Sbbvant. 669 of machines, ^*^ the method of releasing clogs in rolls,^*^ the location of a pile of stone along a railroad The employee paid no attention to what was said, but continued his work. The evidence was not con- clusive that he heard or understood the warning. Balder v. Zenith Furnace Co., 103 Minn. 345, 114 N. W. 948. 141. It was a question for the jury whether the instruction given to a servant of some experience as to the oiUng of certain appliances and the danger from certain cog wheels, was sufficient. He was told how and where to oil, but it was a question whether he sufficiently understood the situation and the danger from the cogs. Higgins v. Penninsular Portland Cement Co., 152 Mich. 390, 116 N. W. 397. If an inexperienced servant was instructed to operate a machine in the most dangerous way and is injured shortly after, there being a claim that the machine was defect- ive, the question whether "in view of his experience he was likely to appreciate the danger of following the instructions, was a question for the jury. Clemens v. Gem Fibre Package Co., 153 Mich. 495, 117 N. W. 187. Where a master allowed a servant to gain instruction as to the operation of a dangerous ma- chine from observing his superiors ute a dangerous method, and the servant adopted it without being sold or knowing that it was im- proper, the master cannot avoid liability for the servant's injury on the ground it could not reasonably have anticipated his act. Godsoe V. Dodge Clothespin Co., 75 N. H. 67, 70 Atl. 1073. An inex- perienced servant set to work upon a machine for winding into roUs thin bars of sheets of brass, in the operation of which the hand of the operator was expected to come in contact with it, but the machine could not be stopped while in use and under tension in case his hand got caught, should have been in- structed that the machine could not be stopped under such circumstan- ces, and where he was not so in- structed, but told he could stop the machine at any time by stepping on a certain lever, and he was injured while operating the machine by slipping on some lubricating oil on the floor (which condition of the floor was held not to be the proxi- mate cause), causing his hand to be caught in the machine, and being unable to stop the machine by means of the lever, was severely injured, the master was held liable. Yess V. Chicago Brass Co., 124 Wis. 406, 102 N. W. 932. The evidence disclosed sufficiently that the operator of a saw knew that strips might be caught by the saw he was operating and thrown back- ward, and he was instructed to stand at the side and not in front of the saw. The instruction given was sufficient. St. Jean v. J. H. Tolles & Co., 72 N. H. 587, 68 Atl. 606. 142. Where an employee was merely instructed to use a stick to unclog certain rollers, and was not warned that the use of a stick of greater thickness than the space between the roUers, would be dangerous and he was injured by the use of such a stick, this was held sufficient to sustain a finding of the 670 Master and Servant. §309 track, ^*' the burning of a trestle/** etc.,^** the notes below. are given m Simply warning of danger may not be sufficient. Simply warning a servant of danger does not generally excuse the master from pointing out the particular danger of the employment, and to so instruct him as to avoid such danger. Though an ignorant and inexperienced man may frequently be warned and cautioned that he is encounter- master's negligence. Whether the danger was open and obvious was for the jury. Wilder v. Great West- em Cereal Co., 130 Iowa, 263, 104 N. W. 434. 143. Where an employee on the day of his entry into the service was killed by contact with a pile of stone near the track, while ascending a car, and it appeared from the testi- mony of the conductor that he had warned him to look out for a pile of stone along the track, that it was so close it would not clear him, it was said: "It is not clear from the evidence that the conductor in- formed him so particularly as to the location of the stone pile that the deceased must be deemed to have known that it was located on the side track, but notice of the precise nature of this danger was involved in the warning. If such notice was given he must have understood the nature and extent of the peril, and that this danger was one which he was likely to encounter as brake- man on this line of less than four miles of road. He must be regarded as having assumed the risk." Smith V. Winona & St. P. R. Co., 42 Minn. 87, 43 N. W. 968. 144. The railroad company hav- ing given its employee notice of the burning of a trestle, giving number, and its location, performed its duty to him, and hence where injured he had no ground for recovery. St. Louis, I. M. & S. R. Co. v. Mize, 71 Ark. 159, 71 S. W. 660. 145. An inexperienced em- ployee called to temporarily work upon a chopping machine while the same was in motion, the danger of getting his hands into the machine not being obvious, the mechanism of the machine being concealed, and having been instructed to push the material into the machine with both hands in a way that could only be safe if there was no danger of his hands getting into the ma- chine, did not assume the risk of injury from such source. Byrne v. Learnard, 191 Mass. 269, 77 N. B. 316. It was not negligence on the part of the engineer or fireman operating a switch engine in a yard, to fail to take other precau- tions than the ringing of the beU to warn the fireman of another switch engine standing on a parallel track, engaged at the time in fixing a steam valve upon Ms engine, of the approach of the engine, they having no reason to believe that he would step back on their track and in front of their engine, which he did and was killed. Brown v. Chi- cago, R. I. & P. R. Co., 120 Iowa, 280, 92 N. W. 662. 309 Insteucting and Wakning Seevant. 671 ing great peril and will be hurt if lie is not careful, yet, unless the particular source of danger is pointed out to him, and the manner of avoiding it explained, the warning wiU not be of material benefit to him.^** Instructor must be competent. Before putting a servant, known to the master to be unskilled, in charge of dangerous machinery with the operation of which the servant is not acqua nted, it is his duty to instruct and qualify him for such new duty. If for the purpose of instruction he selects another servant in his employ, the latter must be not simply as competent as the master, but absolutely competent. If he is incom- petent or negUgent while performing this duty of instruc- tion, or if he discontinues his instruction before comple- tion and in consequence the servant is injured, the master wiU be Uable.i^' Where a young man, inexperienced in. the work in a mill which he was required to do, was instructed in the use of the machine and its perils by another employee selected for such purpose, and such instructor and em- ployee behoved that the instruction had continued suffi- ciently long so that the employee comprehended such use and perU, it was said that if such instructions were given as would justify the defendant in beUeving that he had done his duty by the plaintiff, and such as most men would do under like circumstances, that is enough. ^^* Where servant a minor. The duty of the master in respect to the employm.ent of young and inexperienced children is not only to warn them, but to instruct them as to the dangers of the em- ployment, and the means of avoiding them. This duty performed, they stand upon the same plane with other servants, in reference to the risks incident to the employ- 146. American Strawboard Co. N. Y. 489, 23 N. E. 810, 8 L. R. A. V. Faust, 11 Ind. App. 638, 39 818, 16 Am. St. Rep. 775. N. E. 528. 148. Foster v. Pusey, 8 Houst. 147. Brennan v. Gordon, 118 (Del.) 168, 14 Atl. 545. 672 Masteb and Servant. §309 ment and those arising from want of care ia their fellow- servants.^^' The instruction and warning that should be given a young employee must, as has been stated, generally be accompanied with such explanation as will enable him tn understand it.^^" No fixed rule can be laid down as to the sufficiency of the instruction except to state that the instruction and warn- ings must be such as are reasonably necessary in order to enable the servant to understand the perils to which he is exposed by his employment."^ 149. Fisk V. Central Pae. R. Co., 72 Cal. 38, 13 Pao. 144, 1 Am. St. Rep. 22. 150. Ttere was a tank near where a boy eleven years old was performing his work and the claim on the part of the defendant was that the boy was told not to place his files there, which order he did not respect. It was said: "It is not expected that a child of eleven years will bear in mind and always foUow a mere direction to put his work in a particular place, when he knows no reason why it may not be put in another place as well." Honlahan v. New Amer- ican FUe Co., 17 R. I. 141, 20 Atl. 268. 151. Where a boy of twelve years old was injured by contact with cogs upon a machine while he was passing near it, obeying an order of his superior, it was said that the instruction which he was entitled to receive was concerning the danger from revolving cogs. There was no peculiar secret danger. Anybody seeing the machines in motion would soon become aware of the danger arising from contact with them. The duty of the defend- ant woidd be sufficiently dis- charged by pointing out the situa- tion of the machine and the rapid revolution of the wheels while in motion, and explaining the proba- ble effect of touching them. The master is only bound to give such instructions as are reasonably nec- essary in order to enable the serv- ant to understand the perils, to which he is exposed by reason of his employment. Ciriack v. Mer- chants' Woolen Co., 146 Mass. 182, 15 N. E. 579, 4 Am. St. Rep. 307. Where the instruction and warning given to a minor servant concerning the dangers incident to his work about machinery, were mostly of a general nature and not speeifie, the question of their suffi- ciency and defendant's neghgence was held for the jury. Lunde v. Cudahy Packing Co., 139 Iowa, 688, 117 N.W. 1063. It was a ques- tion for the jury whether a girl fifteen years old, inexperienced, should have had more complete instructions than those which she received in the manner of stopping the machine she was operating. Her hand was drawn into cogs in attempting to stop the machine by taking hold of the rim of the larger wheel. Bowden v. Marlborough 310 Insteucting and Waening Seevant. 673 § 310. Duty to warn infants. Persons who employ children to work with or about dan- gerous machinery or in dangerous places, should anticipate that they will exercise only such judgment, discretion and care as is usual among children of the same age, under similar circumstances, and are bound to use due care, hav- ing regard to their a,ge and exper'ence, to protect them from danger incident to the situation in which they are placed, and as a reasonable precaution in the exercise of such care in that behalf, it is the duty of the employer to so B. M. & L. Co., 185 Mass. 549, 70 N. E. 1016. Wiere a boy fifteen years old, employed at a machine •with rapidly revolving cogs, was repeatedly warned of the danger and told that his fingers would be cut off if caught therein, it was not required that the instruction and warning should go to the extent of pointing out wherein the danger consisted, as it was apparent, nor how his hand would be injured if caught. Bibb Mfg. Co. v. Taylor, 95 Ga. 615, 23 S. E. 188. Where a boy less than fourteen years old was injured by contact with revolving cogs of a machine located near the machine he was operating, it was said that the notice which defend- ants were bound to give the plain- tiff must be such as to enable a per- son of his youth and inexperience in the business to intelligently appreciate the nature of the danger attending its performance. The obligation of the defendant would not necessarily be discharged by merely informing the boy that employment in a particular place or with a machine or in a building or room in which he was set at work, was dangerous. Coombs v. New Bedford Cordage Co., 102 Mass. 572, 3 Am. Rep. 506. Where a 1 M. & S.— 43 young boy was injured by his hand coming in contact with revolving knives of a machine which he was operating, it was held that he was fully aware of the danger to be apprehended from contact with knives; but as there was proof that the motion of the knives caused a strong suction which might have drawn them in, it became a proper question for the jury, under proper instructions, to determine whether such was the fact, as well as whether he was aware of it, and, if it was a fact, whether it was the duty of the employer to see that he was properly instructed. Bohn Mfg. Co. V. Eriekson, 5 C. C. A. 341, 65 Fed. 943. A young and inexperienced servant, seventeen years old, should have been in- structed as to the safe way of doing the work, and as to the dangers of an unsafe way. He was set to running a planer having a lower roller with knives revolving so fast as to appear like a smooth surface. In attempting to puU out a chaser as others had done, his foot came in contact with the lower cyhnder. Wright V. Stanley, 56 C. C. A. 234, 119 Fed. 330. Failure to instruct a boy without knowledge or expe- rience whose clothes in performing 674 Masteb and Servant. §310 instruct such employees concerning the dangers connected with their employment, which from their youth and inex- perience they may not or are presumed not to appreciate or comprehend, that they may by the exercise of such care as ought reasonably to be expected of them, guard agaiast and avoid injuries therefrom. Such an employee who has not been so instructed and who while iu the dis- charge of his duty as he xmderstands it, suffers an injury in consequence of his employer's negligence, may maintaia an action therefor against the employer, notwithstanding that by reason of his youth and inexperience, and the failure of the employer to properly instruct him, he did his duties necessarily became satur- ated with oU, of the danger of be- coming ignited when exposing him- self to the heat of a stove where he was sent by his employer to warm himself, was such negligence as warranted a recovery for injuries received resulting in his death from such exposure. Wallace v. Stand- ard OU Co., 66 Fed. 260. Warning a girl fifteen years of danger of injury to her fingers from knives held on to a shaft by set screws, was held to have been insufficient to apprise her of the danger of her hand coming in contact with the set screw, where the shaft revolved so rapidly that the set screws could not be seen. Van De Bogart v. Marinette &M. Paper Co., 127 Wis. 104, 106 N. W. 805. It was the duty of the master to give such instruction to a lad of thirteen years put at work upon an intricate carding machine, as he needed. The only instruction he received was "to watch the other boys" who were working on similar machines and when he attempted to put wool through the machine which had clogged it, with a broom stick, he was told to use his hand, and there- after in using his hand the machine started with a jump, pulling his hand in the machine. The instruc- tion was insufficient. Rudberg v. Bowden Felting Co., 188 Mass. 365, 74 N. E. 590. What further instruction or warning ought to have been given does not appear. It was held that the warning against danger in the employment in which a minor servant was engaged should be put in such plain language as to be sure that he understood and appreciated the danger. The lad could not understand English and the instructions and warning were largely by signs. Addicks v. Christoph, 62 N. J. L. 786, 43 Atl. 196, 72 Am. St. R«p. 685. It was held that a railroad company know- ingly directing a minor employed as a messenger boy in its office, having no experience as a brakeman to act as such, without giving him instruction as to the dangers inci- dent to the employment, is guilty of negligence and such employee where injured may recover for his injuries from the master. Texar- kana & Ft. S. R. Co. v. Preacher, 59 S. W. (Tex. Civ. App.) 593. 310 Instbucting and Waeninq SeETAjSTT. 675 some act in the performance of his duty according to the judgment and knowledge he possessed which contributed to the injury, but which he did not know and was not advised would be Ukely to injure him.^^^ Yet the mere fact that the servant is a minor does not of itself affect the liabihty of the principal or master as to obvious defects and dangers, unless the minor was of unsuitable age to be exposed to imsuitable risks in a haz- ardous business. If a minor engages to work, the risks of the busiaess are incident to the work, so far as he is com- petent to comprehend and appreciate them, and it can make no difference in the application of the rule whether such employment was with or without the consent of the parent. The father might collect the wages or exercise control over the minor, but it is not unlawfvil for the minor to engage in a service, not itself unlawful, though haz- ardous, and having done so, he is subject to the incidental obligations of the position."' 152. Rolling MiU Co. v. Corri- gan, 46 Ohio St. 283, 20 N. E. 466, 3 L. R. A. 385, 15 Am. St. Rep. 596 (boy less than fourteen years old was required to start and stop an engine, where by reason of his size he had to stand near rapidly revolving gears, and belts, one of which belts was more than ordi- narily dangerous by reason of being loose). See also Fisk v. Central Pacific R. Co., 72 Cal. 38, 13 Pac. 144, 1 Am. St. Rep. 22; Welsh v. Butz, 202 Pa. St. 59, 51 Atl. 591; Rossey v. Lawrence & Hamilton, 123 La. 1053, 49 So. 704; Foley v. California Shoe Co., 115 Cal. 184, 47 Pao. 42, 56 Am. St. Rep. 87; Arkansas Cent. R. Co. v. Work- man, 87 Ark. 471, 112 S. W. 1082; Missouri, K. & T. R. Co. v. Evans, 16 Tex. Civ. App. 68, 41 S. W. 80. 153. De Graff v. Railway Co., 76 N. Y. 125; Buckley v. Gutta Peroha & Rubber Mfg. Co., 113 N. Y. 540, 21 N. E. 717; McGinnis V. Canada S. B. Co., 49 Mich. 466, 13 N. W. 819. The difference in duty in respect to warning of dan- ger, which may exist in case of a child and in the case of an adult, was concisely stated by the court. The reasoning of the court is so clear and convincing that it is proper to some extent to repro- duce it here. The facts were that the hand of a boy sixteen years old, was caught and crushed between rollers in a rotary printing press. The particular question was whether the risk was so open and obvious that the boy should have been held to have assumed the risk. Thus it is stated: "That the case is close is undeniable. There are many such and of nec- essity must be. It is not that the rules of law applicable are doubtful or involved, but that the facts in no two ca,ses are alike, and there must 676 Mastee and Servant. §310 The fact that a young and inexperienced employee, though using ordinary care, was injured while engaged in a dangerous work of whose perils he had not been warned and was ignorant, does not entitle him to recover from the master, if the injury was solely the result of a co- employee's negligence, or if, it was not caused directly by be a large field where it is difBeult to say wlietlier a given case reaches or crosses the line which the law lays down as the limit. In such oases two different minds will be apt to reach different conclusions though both be honest and both be attempting to apply the same abstract principle of law. The infirmity is one inherent in the human reason. In no class of eases is the difficulty m^ore serious than in the class covering injuries to minor employees resulting from the operations of compUcated machines about which they are working. . . . It is settled of course, that, notwithstanding the fact of his infancy, a minor assumes the risk resulting from open and obvi- ous dangers, at least if the minor has reached the age when he may be lawfully employed in such labors. But what may be an open and obvious danger to an experienced adult may not be such to an inex- perienced minor, and hence there will be infallibly cases where, under the apphcation of this rule, a court must direct judgment against an adult, while under precisely the same circumstances it could not rightly do so in the case of a minor. This is not only human but logical. The child presumedly lacks the reflective and reasoning power as well as the experience of the man, and the law, which is supposed to be the perfection of human reason, makes aUowanee for the deficiency in this respect of the childish character. So this court has, in no uncertain terms, laid down the rule that while the ordinary adult assumes the risks resulting from open and obvious dangers, which he knows or ought to know and cannot say he did not fully «om- prehend or appreciate them, the inexperienced minor is not always charged with knowledge of risks, which to the adult are obvious, and he does not as matter of law, as- sume such risks unless it appears that he not only knew ©r ought to have known the proximity «f the cog wheel or roller or other danger- ous agency from which the injury resulted, but also comprehended and appreciated or ought to have comprehended and appreciated the extent of the risk to which its prox- imity subjected him. E«p©oiaUy is this latter rule applicable m a case where the situation is obscure or complex. . . . There are cases, as the decisions cited show, where the court is justified in holding as matter of law that a minor assumed the risk, but it will be found upon examination, that they are gener- ally cases where the minor was nearly of age, and had had a man's experience or where the situation was free from obscurity or com- plexity, the danger in plain sight, and the minor's attention neces- sarily directed toward the danger- §310 Instructing and Waening Servant. 677 the dangerous character of the work, or if he should have comprehended the danger, that is, if an ordinarily prudent person of his age and experience under like circumstances would have appreciated the danger and risk.^^^ Pennsylvania rule as to servants over or under fourteen. In Pennsylvania, it is held that a servant over fourteen is presumed to have sufficient capacity to understand the danger of his employment and how to avoid it."^ This rule as to bm-den of proof is not accepted in some jurisdictions,^^* while apparently adopted in other juris- ous knife or cog or roller by tte very nature of the business. Schu- macher V. Tuttle Press Co., 142 Wis. 631, 126 N. W. 46. See also Kenna v. American Box Tow Co., 144 Wis. 231, 128 N. W. 858; Gierczak v. Northwestern Fuel Co., 142 Wis. 207, 125 N. W. 436. 154. Craven v. Smith, 89 Wis. 119, 61 N. W. 317. 155. An infant of the age of fourteen is presumed to have suffi- cient capacity to be sensible of danger and to have the power to avoid it, and this presumption ■wiU stand until overthrown by clear proof of the absence of such discretion as is usual with infants of that age. When an infant's responsibility for negligence is pre- sumed to commence is a question for the court and not for the jury. Nagle V. Alleghany R. Co., 88 Pa. St. 35, 32 Am. Rep. 413. The measure of a child's responsibility is his capacity to see and appre- ciate such danger and the rule is in the absence of clear evidence or the lack of it, that he will be held to such measure of discretion as is usual in those of his age and expe- rience. The measure varies, of course, with each additional year, and the increase of responsibility is gradual. It makes no sudden leap at fourteen, that is simply the convenient point at which the law, founded upon experience, changes the presumption of incapacity, and puts upon the infant the burden of showing his personal want of in- telhgence, foresight or strength usual in those of such age. Kehler V. Schwenk, 144 Pa. St. 348, 22 Atl. 910, 13 L. R. A. 374, 27 Am. St. Rep. 633; S. C, 151 Pa. St. 505, 25 Atl. 130, 31 Am. St. Rep. 777; Sandford v. HetsonviUe, M. & F. P. R. Co., 136 Pa. St. 84, 20 Atl. 799; Oakland R. Co. v. Fielding, 48 Pa. St. 320; Greenway v. Conroy, 160 Pa. St. 185, 28 Atl. 692, 40 Am. St. Rep. 715. 156. See Ittner Brick Co. v. KiUian, 67 Neb. 589, 93 N. W. 951; Atlanta & W. P. R. Co. v. Smith, 94 Ga. 107, 20 S. B. 763. The Texas couurt does not concur with the doctrine that a minor of the age of fourteen years is pre- sumed to comprehend the obvious dangers incident to an employment until the contrary appears, but hold that if a servant be under twenty 678 Mastee and Servant. § 310 dictions.^" On the other hand, it is held in Pennsyl- vania that a boy less than foiu-teen years of age, has not reached the age when sufficient capacity to be sensible of danger and the means of avoiding it is presumed. It becomes a question for the jury."' When age and size notice to master. The age and size of a minor servant, a lad of nine or ten years of age, employed to assist in operating a com cutter, was notice to the master that he had not the capacity of a mature person for the work in question, and to carry the question of assimied risk to the jury."'' It was held that a boy of eleven years was too young to be assigned to the hazardous business of operating a card- ing machine, which included the adjustment of a belt, and hence the master was hable for the injury he sustained."" Age alone does not determine as a matter of law. The obligation to instruct an employee before putting him at work, as to any of his duties, which are dangerous, does not follow, as matter of law, from his minority when employed. His inexperience, the fact that the service is dangerous, and the fact that his inexperience or want of one years of age, and has not been years, he is presumed not to possess instructed by the master as to the such capacity and in an action by dangers of his employment, it is a him for negligently causing his question for the jury whether he injury, the burden of proving his has acquired sirfficient knowledge capacity is on the master. If with- of the dangers to exempt the master out sufficient capacity he could not from liability in case of injury. assume a risk or be guilty of con- Texas & P. R. Co. V. Brick, 83 tributory negligence. Ewing v. Tex. 598, 20 S. W. 511; White v. Lanark Fuel Co., 65 W. Va. 726, 65 San Antonio Water Works Co., S. E. 200, 29 L. R. A. (N. S.), 487. 9 Tex. Civ. App. 465, 29 S. W. 252. 158. Strawbridge v. Bradford, 157. An infant of fourteen years 128 Pa. St. 200, 18 Atl. 346, 15 or over, is presumed to possess Am. St. Rep. 670. sufficient mental capacity to com- 159. Bolton v. Ovitt, 80 Vt. prehend and avoid danger; and if '362, 67 Atl. 881. he relies on his want of capacity, 160. Henderson Cotton Mills v. the burden of proving it is on him, Warren's Adm'r, 24 Ky. L. Rep. but if under the age of fourteen 1030, 70 S. W. 658. § 310 Instbuctikg and Warning Sebvant. 679 capacity is or should be known to the master, are con- siderations involved."^ However, the plaintiff's minority may be considered in determining the question of his intelhgence to appreciate the dangers involved in the employment.^'* Presumption as to minor. The supreme court of Wisconsin used the expression: "The deceased was a minor so there is no presumption that he understood or appreciated the danger.""' Just what was intended by such expression is not exactly clear. There does not arise a presumption, either way, from the fact of minority of a person over fourteen years of age, only to the extent as before stated, that he is presumed in some jmisdictions to have sufficient capacity to be sensible of danger and to have the power to avoid it. That presumption only arises from the particular facts and circumstances. It was stated by the same court, that the mere fact that an employee is a minor does not require that the question of his assTimption of the risk, should be submitted to a jmy where the danger is clearly obvious to one of his age and experience and there is nothing in the conditions requiring special skill or experience."* Presumption as to expenenced servants. The rule that a servant of experience is presumed to know the dangers from ordinary hazards attending the proper conduct of the business, and is not entitled as an absolute right to the same or similar notice of dangers inci- dent to the employment, as if he was ignorant or inexpe- rienced in the particular work, was said to apply to infants as well as adults."* 161. Atlanta & W. P. R. Co. & Co. Co., 90 Wis. 178, 63 N. W. V. Smith, 94 Ga. 107, 20 S. E. 763. 87. 162. Newbury v. Getehel & M. 164. Herold v. Pfister, 92 Wis. Lumber & Mfg. Co., 100 Iowa, 417, 66 N. W. 355. 441, 69 N. W. 743, 62 Am. St. Rep. 165. Central Granaries Co. v. 582. Ault, 75 Neb. 249, 106 N. W. 418, 163. WolsM V. Knapp-Stout 107 N.W. 1015. 680 Mastee and Servant. §310 Thus, a person under age, who is employed in operating a dangerous machine, knowing it to be so and being old enough to appreciate its dangers, assiimes those risks which are incident to its operation, to the same extent as a person of mature years."* Servant's knowledge of danger. If the minor knew, by experience or observation, the nature of the machinery and the danger to be apprehended from it, no liability rests upon the master upon the ground that he failed to properly warn or instruct the servant."^ The same rule applies where the servant has gained, from any source, knowledge how to use the machinery."* 166. Dunn v. MoNamee, 59 N. J. L. 498, 37 Atl. 61. Wliere a youth seventeen years and seven months old was injured by contact with cogs which were elevated six or seven feet above the floor, while attempting to oil them, it was said: "He was not ia law an infant of tender years. In this state if a minor be over fourteen years of age and of sound intelligence, he may select his guardian. If over sixteen years of age and convicted of any offence, he must suffer the punishment prescribed by law to the same extent as if he had reached majority. The plaintiff therefore will be presumed to be sensible of danger and to have the power to avoid it, and this presumption will stand untU overthrown by evidence of the absence of such discretion as is usual with persons of his age. The doctrine that it may be negli- gence to set an infant of tender years, at work upon a dangerous machine, without pointing out its dangers, in view of the age of the plaintiff and the time he had worked in the shop, does not apply." San- bom v. Atchison, T. & S. F. R. Co., 35 Kan. 292, 10 Pac. 860. A master is not ordinarily answerable for an injury to experienced adults, nor to young persons who have had experience from which a knowledge of danger may oe reasonably pre- sumed. Stitzel V. A. WUhelm Co., 220 Pa. St. 564, 69 Atl. 996. 167. White v. Wittemann Lith. Co., 131 N. Y. 631, 30 N. E. 236; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286; Buckley v. Gutta Percha & Rubber Mfg. Co., 113 N. Y. 540, 21 N. E. 717; Ogley v. Miles, 139 N. Y. 458, 34 N. E. 1059; Hettchen v. Chipman, 87 Md. 729, 41 Atl. 65; CouUard v. Teoumseh Mills, 151 Mass. 86, 23 N. E. 731; Shine v. Cocheoo Mfg. Co., 173 Mass. 658, 64 N. E. 246; Berhn v. WiUiam B. Mershon & Co., 132 Mich. 183, 93 N. W. 248; Mueller v. La Prelle Shoe Co., 109 Mo. App. 506, 84 S. W. 1010. 168. Sullivan v. India Mfg. Co., 113 Mass. 396. No liabiUty imposed upon the master though guards were absent from a machine, which were required by law, where the infant employee, knowing their absence, voluntarily meddles with § 310 Inste cting and Waening Servant, 681 Obvious dangers. The rule as to ■warning and instruction of young persons is the same as to adults in that the master is not required to explain patent dangers at all which are ordinarily inci- dent to the service and which it may reasonably be ex- , peoted, under all the circumstajices, the particular employee can see and appreciate.^*' Minor servants are held to assume, by their contract of employment, those ordinary risks of the service which are obvious to them or have been pointed out in a manner suited to the comprehension of their youth and inexpe- rience. They cannot ignore the duties of common prudence or the instructions of their superiors, to guard themselves from apparent dangers and charge the consequences upon their employers.^™ An employer is under no obhgation to warn an employee, even though a minor, of dangers which are obvious, nor to instruct him in matters which he may fairly be presumed to understand; nor is it the duty of the master to admonish the servant to be careful when the servant well knows his danger and the importance of using care to avoid it."^ the machinery and is injured, and done in the usual way. Tostir White V. Wittemann Lith. Co., 131 mony to show the tools employed N. Y. 631, SON. E. 236. were not safe and suitable was 169. Fones v. PhiUips, 39 Ark. held inadmissible. It was said 17, 43 Am. Rep. 264; Ryan v. Ar- the simplicity of common sense mour, 166 lU. 668, 47 N. E. 60. furnishes a safer guide in such a 170. Beckham v. HUlier, 47 ease than the niceties of technical N. J. L. 12. knowledge. Whalen v. Rosnosky, 171. Ciriack v. Merchants' 195 Mass. 545, 81 N. E. 282, 122 Woolen Co., 151 Mass. 152, 23 Am. St. Rep. 271. Thus where a N. E. 829, 6 L. R. A. 733, 21 Ami. minor is familiar with a machine, St. Rep. 438. There is no duty and its character and operation, and resting upon the master to warn an he is aware of and fuUy appreciates employee, though a minor, of the the danger to be apprehended from danger from a piece of steel flying it, he takes upon himself the risk oflf from a hatchet while engaged in incident to the employment, the opening a wooden packing case, same as a person of mature age. The work he was required to do was This was said in reference to a boy one of the common operations of assisting in the operation of a every day life, free from complexity machine. Buckley v. Gutta Per- 682 Master and Servant. §310 However, a danger may be obvious, and a minor servant may have been warned and instructed in regard thereto, and yet the master is Uable where the servant is so young and inexperienced that he is unable to comprehend and guard against the danger to which he is exposed."* cha & Rubber Mfg. Co., 113 N. Y. 540, 21 N. B. 717. A minor em- ployee engaged as a brakeman, who had been in the service three days when he was injured, in coupling cars, by his hand getting crushed between the dead woods, was held to the consequences of what he knew or ought to have known of the danger, as though he were an adult. Nor- folk & W. R. Co. V. Cottrell, 83 Va. 512, 3 S. E. 123. It was held, how- ever, where a minor of immature judgment and without experience was employed as a brakeman upon a freight train and was ignorant of the difference between double and single dead woods upon cars, and of the hazards attending the act of coupling ears constructed with the former, of which fact the company knew or might have known, and was without instruc- tion ordered by the conductor to couple cars furnished with double dead woods, instead of single dead woods ordinarily in use by the company, and in attempting to do BO received an injury, the company was Kable. Louisville, N. A. & C. R. Co. V. Frawley, 110 Ind. 18, 9 N. E. 594. See Pennsylvania Co. v. Long, 94 Ind. 250. It was held the duty of the master to warn call boys in its yards of the danger while riding on the ladders on cars of passing trains, from contact with scales located near the track, it having knowledge that such was the custom of such call boys. St. Louis S. W. R. Co. V. Spivey, 73 S. W. (Tex. Civ. App.) 973. 172. See Pittsburgh, C. & St. L. R. Co. V. Adams, 105 Ind. 151, 5 N. E. 187; Taylor v. Woo tan, 1 Ind. App. 1882, 27 N. E. 502, 50, Am. St. Rep. 200; Missouri Pao. R. Co. v. Peregoy, 36 Kan. 424, 14 Pac. 7; Hickey v. Taafle, 105 N. Y. 26, 12 N. E. 286; Williamson V. Sheldon Marble Co., 66 Vt. 427, 29 Atl. 669. WMle the law recog- nizes the right of a master to employ an infant in a hazardous occupa- tion on condition that he shall furnish such infant with such infor- mation relative to the perils of hia situation as wiU enable him to comprehend the dangers and under- stand how to avoid them, yet it is an actionable wrong for him to expose in a hazardous employment one whom he knows to be lacking in capacity to understand and appre- ciate the dangers surrounding him, however much he may have been instructed. Taylor v. Wootan, 1 Ind. App. 188, 27 N. E. 502, 50 Am. St. Rep. 200; Pittsburgh, C. & St. L. R. Co. v. Adams, 105 Ind. 151, 5 N. E. 187. He should have at least sufficient capacity to understand the dangers of the situation and to appreciate the importance of heeding prudent warnings for his safety. Taylor v. Wootan, 1 Ind. App. 188, 27 N. E. 502, 50 Am. St. Rep. 200. § 310 Instetjoting and Wabning Servant. 683 Especially is this so where the servant is not warned of the danger."' In other words, the giving of proper instructions will not relieve an employer from Uability to a child if the work required of him was such as ought not to have been required of a person of his capacity."* Knowledge of master of need of instruction. There is no duty to warn or instruct where the master does not, and is not bound to, know or take notice of the servant's youth or inexperience."^ The same rule applies, in the case of minors as to adults, in substance, that the master must be chargeable with knowledge that the employee is in need of instruction, as well as of the danger. Thus, a master was held not Uable in allowing the use of a machine by a minor servant, the danger of which was obvious, where the machine in the single instance only behaved in an imusual and unac- countable manner, aiad injuring a servant in a way that was not obvious. It was said that something in the nature of a scienter must be proved from which it may be nf erred the master, by the exercise of reasonable caution, could have apprehended such an occurrence. "° Presumption that father had given instructions. Where a minor working with his father, and hired by him to the defendant to transfer lumber from one car to another, was injured by lumber falhng upon him, and the court left it to the jury to determine his capacity to appre- ciate the danger and whether he should have been in- structed, it was held that the business was not specially hazardous, and he woidd be presumed to know its risks, especially as he has worked at it once before, and the 173. Fries v. American Lead 69 Vt. 1, 37 Atl. 269, 60 Am. St. PencU Co., 2 Cal. App. 148, 83 Rep. 915. Pao. 173 (boy nine years old, 175. Ford v. Bodcaw Lumber knowledge saw was dangerous). Co., 73 Ark. 49, 83 S. W. 346. 174. Hayes v. Colchester Mills, 176. Carrington v. Mueller, 65 N. J. L. 244, 47 Atl. 564. 684 Masteb and Servant. § 310 employer miglit assume that Ms father had given what instructions he needed."^ When question for court. Where it appears from undisputed testimony that a minor did or did not imderstand and appreciate the obvi- ous danger of the situation, then a case is presented for determination by the court; but where proper inferences to be drawn from such testimony leave the question of the appreciation oi the danger in doubt, then it becomes a question for the jury.^'^ It was held, however, by the California court, that the negUgence of a minor child employee must, in the nature of the case, be a question of fact for the jury. It is their exclusive province to determine whether a child has exer- cised such judgment as he possessed, taking into consider- ation his years, experience and ability."' It was held, in one case, that it was proper for the com-t to refer to the jury for their determination from their observance of the injured employee as a witness and their hearing of his testimony, the question of how much allow- ance should be made for his youth, in determining the degree of care and discretion to be expected of him by his employer where he was a minor nearly nineteen years old, and was injured in a dangerous employment. ^^^ Question what minor ought to have known, not what in fact he comprehended. The question, where the capacity of the servant is involved, is not what a minor servant in fact knew or com- prehended as to the danger to which he was exposing him- self, but what he ought to have known and imderstood in 177. East & West R. Co. v. Works, 88 Wis. 442, 60 N. W. 711, Sims, 80 Ga. 807, 6 S. E. 595. 43 Am. St. Rep. 913. 178. Herold v. Pfister, 92 Wis. 179. O'Connor v. Golden Gate 417, 66 N. W. 355; St. Louis, I. M. W. Mfg. Co., 135 Cal. 537, 67 Pao. & S. Co. V. Davis, 55 Ark. 462, 18 966, 87 Am. St. Rep. 127. S. W. 628; Luebke v. Berlin Mach. 180. Disotell v. Henry Luther Co., 90 Wis. 635, 64 N. W. 425. § 310 Insteucting and Wabning Seevant. 685 view of his age, intelligence, discretion and judgment, and upon request the jury should be so instructed. ^^^ It must appear that the boy would not be presumed to know the danger. A youth may not realize all the possible consequences of the danger; yet if he knows and appreci- ates a danger of being hurt and he is injured by the means which he apprehended were hkely to cause him injury, he cannot be heard to say that he did not realize or appre- ciate the extent to which possible injury might thus be caused to him.^*^ Requisites of complaint. It was said the complaint must show one of three things: (1) that the child was too young to be put to the service which was required of him; (2) that he did not have notice or knowledge of the augmented danger caused by the master's neglect; or (3) that the master knowing the age and inexperience of the child neglected to give him neces- sary warning and instruction. ^'^ Distinction between liability of hands being caught in machine and result if caught. A rather fine distinction was made by a court which held it would not presmne that a boy eighteen years old, of large experience with machinery, could comprehend and appreciate the danger of his hands coming in contact with revolving gearing. "It is true," the court say, "that any boy of a dozen years of age would know that his hand would be injured if thrust between the cogs; but it is evident that knowledge of the probable result of the insertion of the hand, and appreciation of the risk or pus- 181. Luebke v. Berlin Maoh. 182. Pratt v. Prouty, 153 Mass. Works, 88 Wis. 442, 60 N. W. 711, 333, 26 N. E. 1002. 43 Am. St. Rep. 913; Helmke v. 183. BrazU Block Coal Co. v. Thilmany, 107 Wis. 216, 83 N. W. Young, 117 Ind. 520, 20 N. E. 423; 360. See Casey v. Chicago, St. P., Brazil Block Coal Co. v. Gaffney, M. &. 0. R. Co., 90 Wis. 113, 62 119 Ind. 455, 21 N. E. 1102, 4 L. N. W. 624; Kreider v. Wisconsin R. A. 850, 12 Am. St. Rep. 422. River P. & P. Co., 110 Wis. 645, 86 N. W. 662. 686 Master and Seevant. § 310 sibility that his hand might be accidentally drawn between the wheels are two entirely different things. "^^^ The question is suggested what warning or information ought the defendant to have given the plaintiff? What could he have been told that he did not fully understand and which was not perfectly obvious to his senses? Effect of statute. A child under fourteen years of age, employed in a fac- tory is not, as matter of law, chargeable with assumed risk or contributory negUgence, by reason of the statute pro- hibiting the employment of children under that age. The effect of the statute is to declare that children under such age presumedly do not possess the judgment, care and caution necessary for the engagement in such a dangerous occupation. 1*' This construction is not the same in all jurisdictions.^^' Burden of showing infant fitted for work. The burden of showing that an infant was qualified and fitted for the work he was employed to do has been held in at least one state to be on the master,^*' but the weight of authority is to the contrary. It was also stated by the same court, that the master is required to know that an employee, of tender years, comprehends the dangers of a dangerous service. ^^* 184. Chopin v. Badger Paper ticular kind of labor he may be em- Co., 83 Wis. 192, 53 N. W. 452. ployed at when so injured; and 185. Marino v. Lehmaier, 173 therefore the jury should be in- N. Y. 530, 66 N. E. 572, 61 L. R. A. structed in every ease to find for 811. the plaintiff, unless his age, intelli- 186. See employment of serv- gence and experience were such as ants for the statute. to induce a man of ordinary care 187. Whether an infant is to be and prudence to believe him quali- treated as having assumed a risk, fied and fitted for the labor at and held to exercise ordinary care which he employed him. De and caution, in order to recover Lozier v. Kentucky Lumber Co., damages from his employer in a 13 Ky. L. Rep. 818, 18 S. W. 451. case of personal injury, is always an 188. Beckwioh Organ Co. v. open question, depending upon his Malone, 32 Ky, L. Rep. 596, 106 capacity and fitness for the par- S. W, 809, § 310 IssTBUCTiNG AND Wabning Sebvant. 687 General considerations and scope of treatment of decisions. Statements in respect to the capacity of minors to ap- preciate danger and heed warning which, apply generally, have been stated. They furnish, however, but httle aid in determining the question whether in a particular case, or under pecidiar conditions, a minor should have been in- structed or warned with respect to the dangers or hazards incident to his particular employment, and the age of such a person is an important feature to be considered. A child of tender years is not presumed to have the intelligence, capacity or discretion of one nearing the age of manhood. The character of the employment, the conditions incident to it, and the surroundings are all important considera- tions. Hence it is that no uniform rule or guide is possible by which to determine when a minor should have been instructed or warned. The subject becomes more com- plicated from the fact that the courts are not agreed, even where the same conditions exist, some attributing a greater responsibility upon a youth than others. In many cases sufficient allowance is not made for childish indiscre- tion, while in others, sentiment seems to have an important bearing. In view of these considerations, the problem is presented as to how and in what manner this important part of our subject can best be presented to the practi- tioner who will evidently desire to know what the courts have decided, and to know this there must appear not only the age of the minor, the act performed or attempted, the conditions incident to it, and to some extent the reasons which entered into the detemiination by the court. To convey this information, the method has been adopted, as the only apparent feasible one, of classifying reported cases by the minor's age. The cases are so numerous and the conditions so varied, that it is not practicable to make their presentation in narrative form. With reference to children imder f om-teen years of age, there is much wisdom in the statutes which have been enacted in some of the states, prohibiting their employment in occupations that are particularly dangerous, as for instance, in connection 688 Master and Servant. ^ 310 with or about dangerous macliinery. No instruction or ■warning ordinarily can be given that is a suflS.cient protec- tion to one so young. He may comprehend it, but may not at all times heed it. In the absence of such a statute, some of the courts have so held. A learned court very c early expressed this view, with reference to a boy twelve years old, injured wMle oihng machinery. Thus it was said: "If a chUd of tender years is sent by the master or his superintendent, with or without instructions, where he will be exposed to revolving wheels, belts and pulleys, any one may know that by reason of his inexperience and immature judgment he is liable to be maimed or killed, and if he is inj tired while using due care for one of his capacity, it would seem too clear for argument that the master should be Uable. To say that such a child takes the risk of his employment, that if he is not wiUing to take the hazard of obeying the command he must refuse, is idle, if not cruel. By his inexperience he is unable to comprehend the risk. By his childish instincts he im- phoitly obeys."^^' In most cases, however, the determination of the court was based upon the question of the master's duty to instruct or warn, or the character and sufficiency of the instruction or warning given. Twelve years. It was held to have been the duty of the master to warn and instruct an inexperienced boy twelve years old, set to work on a sanding machine, of the dangers incident to the work.^'" On the other hand, a boy twelve years old has been held, in some cases, to assimae obvious risks so that warning is unnecessary."^ 189. Hinckley v. Horazdowsky, v. Manchester Milla, 75 N. H. 133 lU. 359, 24 N. B. 421, 8 L. R. 102, 71 Atl. 629. A. 490, 23 Am. St. Rep. 618; Hinok- 191. Where a boy twelve years ley V. Horazdowsky, 23 N. E. (111.) old and of average intelligence, who 338_ had worked in the same room, but 19a DriscoU V. Rolfe, 75 N. not upon certain machines having H. 586, 71 Atl. 379. See also Lane revolving gearing on the outside in §310 Insteucting and Waening Servant. 689 Thirteen years old. In some cases the master has been held liable on the ground of insufficient capacity to understand or failure to instruct and warn or it has been held a question for the jury."^ plain sigM, while obeying the order of an overseer to go between ma- chinery and get a tool, the order being accompanied by a direction to hurry up, was injured by con- tact with such exposed gearing of one of the machines, it was held that he could not maintain an action against his employer on account of the injury thus received upon the ground of failure to instruct and warn him as to dangers to which he was exposed. It was said that, in the absence of anything to show the contrary, he must be assumed to have had the intelligence and understanding usual with boys of his age. It must be assumed he was well aware of the danger of coming in contact with the revolving cogs, and no instruction could have been given him that would have informed him more than he knew. Ciriack v. Merchants' Woolen Co., 146 Mass. 182, 15 N. E. 579, 4 Am. St. Rep. 307. Upon a second appeal there was evidence before the court that the place was dimly Ugh ted; that the boy had less than the average intelligence; that he had never worked so near the machines as to have occasion especially to consider the risk of injury there- from, and it was held that the question whether he had assumed the risk was properly submitted to the jury, solely upon the evidence relating to the intelHgence of the boy. It was said that in employ- ing a boy twelve years old and 1 M. & S.— 44 apparently of average intelligenee an employer is not called upon to teU him if he holds his hand in the fire it wiU. be burned, or strikes it with a sharp instrument it will be cut, or thrusts it between the teeth of revolving cogs in the gearing of a mUl it win be crushed. Ciriack v. Merchants' Woolen Co., 151 Mass. 152, 23 N. E. 829, 6 L. R. A. 733, 21 Am. St. Rep. 438. A boy twelve and one half years old, was held to have assumed the risk of un- covered cogs in a mill in which he was working, where he had nothing to do with the machinery, knew of the danger of getting into the cog wheels, and did get his hand into them while scuffling with another boy. Borck v. Michigan Bolt & Nut Works, 111 Mich. 129, 69 N. W. 254. Where the employer of a child furnishes him with a safe and suitable place to work, he is not liable for injuries sustained by the child by reason of his voluntarily going about the factory and expos- ing himself to dangerous machin- ery, where the child is of such age and experience and has sufBcient knowledge of the machinery to be able to appreciate Its dangerous character. This was said in refer- ence to a child under twelve years of age. Evans v. American Iron & Tube Co., 42 Fed. 519. 192. Working upon a machine. It was held a proper question for the jury whether a boy thirteen years old, who was injured whCe working 690 Master and Seevant. §310 In other eases, a boy of thirteen has been held old upon a large machine used in con- nection with the making of specta- cles, was of sufficient capacity to appreciate its dangers, and also whether under the circumstances the machine was dangerous. Steiler V. Hart, 65 Mich. 644, 32 N. W. 875; Donavan v. Overman & S. Cordage Co., 22 Ky. L. Rep. 777, 58 S. W. 798. Opehatinq machine pob ctjt- TiNQ TIN. Where a boy thirteen years old was injured while working a heavy machine for cutting tin, called shears, which was too large for him to successfully operate, and while he was using it for his own purposes with the consent of his employer, and the charge was that the master was negligent in not preventing him from using it, it was held the question of the boy's capac- ity and the master's negligence were for the jury. Wynne v. Conk- lin, 86 Ga. 40, 12 S. E. 183. Operating table baw. Where a boy thirteen years old was injured! by his hand coming in contact with a saw while operating a lath saw in a mill, where he had been at work taking materials from the saw, occasionally operating it, from the month of June until the 8th day of September following, which was the date of his injury ; and the claim was that he had not sufficient capacity to perform the service and appre- ciate the danger, that there were safer machines in use which should have been provided, and that he should have been but was not instructed as to its use and the risks and dangers, it was held that these questions upon the evidence were proper for the determination of the jury. It was further held that evidence as to his apparent intelligence and capacity was inad- missible, where he was examined as a witness before the jury, who could thus form as good an idea of his intelligence as that of any wit- ness. Sprague v. Atlee, 81 Iowa, 1, 46 N. W. 756. Cleaning machine. It was held a question for the jury whether a girl thirteen years of age, who was inexperienced in cleaning the wheels of a machine used in a factory, ought to have been instructed as to the manner of cleaning the machine and the dangers attending the work. Glover v. Dwight Mfg. Co., 148 Mass. 22, 18 N. E. 597, 12 Am. St. Rep. 512. WOKKING NEAB DANGEBOUS MA- CHINERY. As stated by a court, there is a difference between work- ing with or at a piece of machinery and being engaged in other work in close proximity to such machinery. In the one case attention is natur- ally directed to the machinery; in the other attention is directed to the work and not to the machinery, and the more attention is given to the work the less must necessarily be given to the machinery. Thus it was so said, where the facts were that a lad of thirteen was engaged in keeping a chute clear from slabs by the use of a long pike pole, there being a rapidly revolving shaft at his back, and who was injured by contact with the shaft; he was repeatedly warned of the danger from contact with the shaft. It was held, however, that the sufficiency of the warning and his capacity to perceive and appreciate §310 Instbxjcting and Waenustg Sebvabtt. 691 enough to take care of himseK and appreciate the danger from ordinary risks. "^ Fourteen years old. The Pennsylvania rule fixing the age of fourteen as the dividing Une on one side of which no presumption arises the danger by reason of his youth and inexperience, were proper ques- tions for the jury. King v. Ford River Lumber Co., 93 Mich. 172, 63 N. W. 10. It was also held a question for the jury whether a boy about thirteen years old should have been instructed and warned as to the dangers from a revolving saw located within thirteen or fourteen inches from where the boy, in do- ing his work, would have to reach with his hand, especially where there was evidence that the boy wasi not familiar with the duty to which he was called from his regular em- ployment, to perform at the time. Sachau v. J. H. Milner & Co., 123 Iowa, 387, 98 N. W. 900. Slipping and coming in con- tact WITH MACHINE. Also whether a boy thirteen years old, under the existing conditions of darkness, a hole in the platform upon which he was at work, it being slippery from glue, assumed the risk of injury from slipping and getting his hand caught in the machinery as well as the question whether the master's duty did not require the giving of warn- ing. Haggblom v. Winslow Bros. & Smith Co., 198 Mass. 114, 84 N. E. 301. Pushing car. Whether a boy thirteen years old who was directed to go in front of a car and puU, thus assisting others, who were pushing it, to move the car, and stumbling, was run over by the car, had sufB- oient discretion to appreciate the danger, was held a question for the jury. Rhodes v. Georgia R. & B. Co., 84 Ga. 320, 10 S. E. 922, 20 Am. St. Rep. 362. 193. It was assumed that a boy thirteen years old, who was injured while, at the request of another employee, he was pulhng out a lever in a machine, and accidentally placed his hand in cogs which were a part thereof, that he had inteUi- gence enough to take care of him- self, and to understand and appre- ciate the machinery and the danger to be apprehended from it. White V. Wittemann Lith. Co., 131 N. Y. 631, 30 N. E. 236. Where a boy thirteen years old was injured while riding in his employer's elevator in a mUl, caused by his extending his person over the rail of the elevator and its coming in contact with the sides of the shaft, it was said : He was an unusually bright boy, nearly thirteen years old, and therefore sui juris and capable of caring for his own safety. He had been at work in the mill for over a month, and during that time had ridden daily on this elevator. Holding him responsible simply for the exorcise of such care and vigilance as could reasonably be expected from one of his age and capacity, it seems to us that but one conclusion can be arrived at, to wit, that he was guilty of gross carelessness and neghgence. Ludwig v. PiUsbury, 35 Minn. 256, 28 N. W. 505. 692 Master and Servant. §310 as to ability to eompreliend and avoid danger wMIe on the other side such presumption exists, adopted in some states and rejected in others, has already been considered. ^^^ Generally, the master has been held hable where the question arose as to instructing and warning a child of fourteen and the master has been negligent in regard there- to, i" 194. See supra, § 310, section paragraph.. 195. Changed to more haz- ardous EMPLOYMENT. Where a a boy fourteen years old was em- ployed as a trapper in a mine, his duties being to open and close doors of a tunnel leading into the mine, and he was directed by the superintendent to assist the drivers in charge of trains, and while assist- ing such he stumbled over a piece of coal lying in the track, which he had previously seen there, and sus- tained injury, it was held that the evidence was sufficient to justify the jury in finding the employer guilty of negligence. The court seem to predicate their conclusion upon what was said in Union Pao. R. Co. V. Fort, 17 WaU. (U. S.) 553, 21 L. Ed. 739, that the work required was more dangerous than that for which he was employed, and therefore it was a question, which the jury might consider and decide, whether the boy had reached such maturity as to under- stand the danger to which he was exposed. Northern Pac. Coal Co. V. Richmond, 7 C. C. A. 485, 58 Fed. 756. Where it appeared the boy was fourteen years old, of small size for his age, and physically weak, that he was employed as a slate-picker, but against his will he was ordered to drive a dump oar, a service in which he had no expe- rience, and one which was highly dangerous, requiring more strength and discretion than he was pre- sumed to possess, it was held that the question of the master's liability upon the facts were for the jury. Kehler v. Schwenk, 151 Pa. St. 505, 25 Atl. 130, 31 Am. St. Rep. 777. See also Fisher v. Delaware & H. Canal Co., 153 Pa. St. 379, 26 Atl. 18. Operating machine. Where a boy fourteen years old was injured the morning after he was put to work upon a certain machine used for stamping pieces of steel, which was operated by placing the foot upon a treadle, by getting his finger crushed under the die, it was held that the question whether the de- fendant was negligent in not in- structing him how to avoid danger in the use of the machine, was for the jury. Armstrong v. Forg, 162 Mass. 544, 39 N. E. 190. Operating sanding machine;, DANGER FROM ROLLS. Whether a minor fourteen years old should have been instructed and warned of the danger of putting his hand between the roUs of a sanding ma- chine, while endeavoring at the command of the operator to straighten some material going through the machine, was properly a question for the jury. Kolodziej- ski V. Seesfcadt, 143 Mich. 38, 106 N. W. 557. §310 Instetjcting and Wabning Servant. 693 However, where the danger is obvious and ordinarily Gearing and cogs exposed. It was said, in reference to a boy less than fourteen years old, injured by contact with cogs in a machine near the one he was operating, and which was in plain sight, where it appeared he was inexperienced and had only worked one day prior to his injury, that the juiry were justified in finding that he should have been instructed as to the dangers sur- rounding him in his employment, even though the dangers were ob- vious to an older person. Coombs V. New Bedford Cordage Co., 102 Mass. 672, 3 Am. Rep. 606. Oiling brick machine in mo- tion. A boy fourteen years old cannot be held, as matter of law, to have assumed the risk of injury fvom oiling a brick machine whUe in motion, if he was commanded by his employer to do it in the maimer in which he undertook the perform- ance, although it was possible that suoh work in such manner could be done without injury. Ittner Brick Co. V. Killian, 67 Neb. 589, 93 N. W. 951. Feeding picking machine with WOOL. Whether a boy fourteen years old, who was injured while feeding a picking machine with wool, by his hand being drawn in between the rollers which were in plain sight, where it appeared he had been operating the machine for two weeks, should have been warned of the danger, was held a proper question for the jury. It was said that it was not improbable that a great many boys, and even men of ordinary intelligence, without experience with machinery, and with a hmited knowledge of the principles of mechanics, who, while knowing and seeing that the rollers drew in wool compressed almost to the thinness of paper, could yet, like this boy, fail to realize or appreciate that they would suddenly compress and draw in, as quickly as it came in the slightest contact with them, an object Hke the hand or fingers, many times thicker than the aper- ture between the roUers. Kaillen v. Northwestern Bedding Co., 46 Minn. 187, 48 N. W. 779. Feeding cotton seed oil mill. Where a boy of about fourteen years old was employed to feed a cotton seed oil mill by placing cakes in a hopper, which were crushed by roll- ers underneath, and he was hardly tail enough to perform the work without standing on an elevator and a box was provided, which v,'as placed loose on a slippery fioor, and while performing his work the box slipped, and in trying to save himself from falling he threw out his hand, which was caught in the machine and injured, it was held that whether he knew, or ought to have known, what caution or care was necessary for him to use while standing on the box performing his work in order to avoid the injuries he received, or appreciated the danger of the failure to use such caution, was a question for the jury. Emma Cotton Seed OU Co. V. Hale, 66 Ark. 232, 19 S. W. 600. Operating saw, danger from BOARDS being THROWN FROM SAW. Under the statute of Iowa, the em- ployment of a boy under sixteen in a dangerous employment is pro- hibited by statute. The court' 694 Mastee and Servant. §310 incident to the service, the duty to warn and instruct has been held not to exist. "° towever, while holding the statute applicable, discussed the question of the competency of a boy under that age, and the necessity for in- struction and stated that knowl- edge and capacity of the infant, his judgment, discretion, care and judgment, and his ability to know and appreciate the dangers that surround him, even prior to the adoption of the statute, were ques- tions of fact for the jury. Whether a boy fourteen years old realized and appreciated the danger from the liability of a board riding the saw, was not in any event, a ques- tion of law, but for the jury. Woolf V. Nauman Co., 128 Iowa, 261, 103 N. W. 785. Operating trip hammbr. It was held that a boy fourteen years old directed to work opposite the operator of a trip hammer, and keep the dies cleaned, should have been warned of the danger and instructed as to his duties. The hammer, through the negligence of the operator, descended, injuring the hand of the boy. B. F. Avery & Sons v. Cottrill's Guardian, 32 Ky. L. Rep. 914, 107 S. W. 332. Operating elevator. A boy fourteen years of age ordered to operate an elevator, did not assume the risk of injury, as matter of law, from concealed defects in the guides, although he knew it was not in good running order, that its movement was irregular, and on the occasion of his injury it lurched violently, throwing him to the floor, causing his foot to be caught. Moy- lon V. D. S. McDonald, 188 Mass. 499, 74N. E. 929. Replacing belt on pullet in MOTION. Where a boy fourteen years old was injured while trying to replace a belt on a pulley while it was in motion, it appearing that the room was dark, that he was a foreigner and was examined through an interpreter, was deficient in memory and was far from being bright, and the testimony was conflicting upon the question of the act being within the Une of his duties, it was held that a ques- tion was presented for the jury as to his being put to work in a dan- gerous place without proper in- struction. Laplante v. Warren Cotton Mills, 165 Mass. 487, 43 N. E. 294. Partial blocking op passage- way PLACE OF WORK. Whether a boy fourteen years old knew or was chargeable with knowledge of the danger to him from the partial blocking of a passage way behind the machine at which he was at work, with scraps of iron over which the lad had to pass in per- forming his work, was a question for the jury. McDonald v. Cham- pion Iron & Steel Co., 140 Mich. 401, 103 N. W. 829. 196. Work and place not dangerous. It was said in re- spect to a boy fourteen years old, employed to take bottles of ale from a shelf and assort them, where one of the bottles broke, that in rare instances, such as presented by the case of Rummel v. Dilworth, 131 Pa. St. 509, 19 Atl. 345, 346, 17 Am. St. Rep. 827, it has been held the employment of young and in- experienced persons to work amidst §310 iNSTBUcniirG AND Wabning Seevant. 695 Fifteen years old. Where the emplojrment of fifteen-year-old children has been involved, the duty to instruct and warn them has dangerous machinery imposes the duty upon the master of ■warning such employees of the latent dan- gers involved in their work. But this kind of habUity is a very re- fined one at best, and the essential fact of the existence of the latent danger as the source of a conse- quent duty as to information must necessarily be established clearly before any charge of negligence can be sustained. Where the work and place are not dangerous, and the materials are those in common use, there is no liability of the master to an employee injured by an accident as for a breach of duty of protec- tion by previous instruction and warning. Melchert v. Smith Brewing Co., 140 Pa. St. 448, 21 Atl. 755. Wiping rollers. Where a boy fourteen years old was employed in a cotton mill and his duties were to wipe rollers when not in motion, an employment not dangerous, and he, after months of service, at- tempted to wipe them while in mo- tion and was injured, it was held that he had no cause for recovery; that no special instructions were required. Zurn v. Tetlow, 134 Pa. St. 213, 19 Atl. 604. Stamping machine, shoving PIECE OP TIN UNDER. It was held that a boy fourteen years old, em- ployed in a tin-shingle factory for the purpose of shoving pieces of tin under a stamping machine, who was injured the second day he worked by having his hand caught under such machine, could not recover from the master on account of such injury. It was said that there was no danger in this particu- lar machine that was not as obvi- ous to a boy of fourteen as to an adult. He could see that if he placed his hand under the stamp it would be crushed. If boys are not allowed to use machinery until they have become accustomed to its use, it would be difficult for them to learn any useful trade or occu- pation by which to earn a liveli- hood. O'Keefe v. Thome, 24 W. N. C. (Pa.) 379, 16 Atl. 737. Placing belt on pullet. It could not be assumed that a boy over fourteen years of age, with six months' experience in a machine shop, is incapable of forming a judgment of the danger of putting a belt on a moving pulley, espe- cially when warned by an older and more experienced person. Greenway v. Conroy, 160 Pa. St. 185, 28 Atl. 692, 40 Am. St. Rep. 715. Cleaning geas of carriagb IN MILL WHERE INSTHUCTBD. Where a girl fourteen years and eight months old was injured while cleaning the running gear of a mule carriage in the mill of her employer, and it appeared that she had been instructed how to do the work, that she had performed the duty many times in each of the six weeks she had been at work, that the movement of the box which came in contact with her head while kneeling to do the work was open to her observation, that she knew how far the box came and how fast it moved, and that the 696 Master and Servant. <>310 in many eases been held a question for the jury. place she occupied was of her own Belection, it was held that she was n^ligent, as a matter of law, ia allowing herself to be struck by the box. Gardner v. Cohannet Mills, 165 Mass. 507, 43 N. B. 294. Opekatinq planing machine. Where a boy fourteen years old was put at work at a planing ma- chine, and while at the side piling boards his hand in some manner was thrown back into the knives and injured, it was held that the master was not bound to warn him of patent dangers which are ordi- narily incident to the service, and which it may reasonably be ex- pected, under all the circumstances, the employee can see and appreci- ate; that the rule in this respect was the same as to adults. It was fur- ther said that it would be a detri- ment to minors in preparing for future usefulness if they should be precluded from all occupations re- quiring them to work near or with machinery. Parents who desire the future success and usefulness of their sons may well desire them to have such employment upon the ordinary risks, and of those risks the paternal instincts may be trusted generally, for a fair estimate. Fones V. Phillips, 39 Ark. 17, 43 Am. Rep. 264. Opebatinq cibculak saw. It was assumed and so stated that a boy fourteen years old knew precisely the risk attendant upon the use of a circular saw. The dan- ger was obvious to him and hence the master was not liable to him where injured for failure to warn him as to such danger. Hettchen v. Chipman, 87 Md. 729, 41 Afl. 65. 197. Operating machine. It was held a question of fact for the jury, whether a minor servant fif- teen years old, of more or less expe- rience in operating a machine, was of sufficient age, intelligence, discre- tion and judgment to bring him within the operation of the ruk applicable to adults, by which knowledge of open and obvious defects and dangers is imputed to them, and they are held to assume the risk incident thereto if they continue ia the employment. Vorbrich v. Geuder & P. Mfg. Co., 96 Wis. 277, 71 N. W. 434. Cleaning rbptjse prom xrNDEB MACHINE. Where a boy fifteen years of age, with but an hour's experience with machinery, at- tempted under the direction of his superior, to clean out refuse which had accumulated under a rapidly revolving circular saw, and was injured by his hand coming in con- tact with the saw, and his evidence was to the effect that he did not know that the saw came as close to the floor as it actually did, and that to him it appeared there were five inches of space between it and the floor, it was held that whether it was negligence in faihng to instruct the boy and give him warning of the danger, was properly a question for the jury. Barg v. Bousfield, 65 Minn. 355, 68 N. W. 45. From loose ore palling in a MINE. Where a boy fifteen years old was set at work carrjring drills to miners in a mine and he was injured by a piece of loose ore fall- ing upon him, it was held that whether the employer should have §310 Insteucting and Wakning Servant. 697 However, the master has been held not liable where the infant knew all the employer could have told him,^'* or where the failure to warn was not the cause of the accident,"' or where the danger was obvious.^™ informed Th'tti of the dangers inci- dent to the work in the mine, and whether he was of sufiioient age and experience or had sufficient knowl- edge upon the subject to compre- hend the dangers incident to such employment, were questions that should have been submitted to the jury. Jones V. Florence Mining Co., 66 Wis. 268, 28 N. W. 207, 57 Am. R«p. 269. Working near danqerous ma- chinery. The employer was held liable for injuries sustained by a boy of fifteen yeai's, who was in- jured by his hand coming in contact with revolving knives on a planer, near a hopper, which he was di- rected to move, and was in the act of moving at the time of the injury, the boy being inexperienced and having no knowledge of the location of such knives, which were so ad- justed that they would continue to revolve for some time after the power was discontinued from the machine. Horn v. La Crosse Box Co., 123 Wis. 399, 101 N. W. 935. Shifting belt. Whether a boy of unusual intelligence without instruction or warning in attempt- ing to shift a belt which he had done before, and as he had seen others do it, appreciated the risk and danger, was a question of fact for the jury. Lehto v. Atlantic Mining Co., 152 Mich. 412, 116 N. W. 405. 198. Where a boy fifteen years old, of ordinary intelligence, after working without instruction for two days ujMJn a machine, and cleaning it daily, upon inserting his hand through an opening and pulling down a hinged apron upon which dirt lodged, was injured on the third day, while cleaning the machine, by reason of his hand slipping off the apron and getting caught between the edge of it and the sides of the opening, it was said that he knew at the time the rela- tive positions of the opening and apron; that the latter if pulled down and released would spring back, and what degree of force was necessary to hold the apron down. It was held that he knew all the employer could have told him, and he could not recover from the latter for his injuries because of lack of instruction. CouUard v. Tecumseh Mills, 151 Mass.' 85, 23 N. E. 731. 199. A girl nearly fifteen years of age, who had been instructed In the use of looms for four months, who was injured while attempting to clean the end of a loom with a brush, in the usual way, by getting a finger in the gearing, could not be heard to assert that the failure of the employer to warn her of such danger was the cause of her injur- ies. Harrington v. Union Cotton Mfg. Co., 182 Mass. 566, 66 N. E. 414. 200. An employee fifteen years old was injured by having his arm caught between the roUers of a carding machine which be was assisting to operate. He had been employed in operating it at the time of the injury some four or five days. The only danger fra.9 698 Master and Seevant. §310 Sixteen years old. In some cases the capacity of a boy of sixteen to appre- that of getting his hands drawn in between the rollers, if his clothing caught on the wire projections on the rollers, and by contact with cogs at the side of the machine. He had been told to keep his sleeves rolled up while operating the machine, and knew there was lia- bility of his clothing being caught if it came in contact with the rollers. It was said that no duty rests upon the master to notify even a minor of the ordinary risks and dangers of his occupation which the latter actually knows and appreciates, or which are so open and apparent that one of his age and capacity could, under Uke circumstances, by the exercise of ordinary care, know and appreciate. It is immaterial from whom or how this knowledge is obtained, nor that he did not realize the full magnitude of the danger. It was held that he could not recover. Truntle v. North Star Woolen MiU Co., 57 Minn. 52, 58 N. W. 832. In another court it was said that a boy fifteen years old who has worked for two months upon a machine having a revolving cylin- der and a belt of felting, between which it is his duty to put sheets of paper, is not entitled to instruc- tion as to the danger of having his hand caught in the machine and burned by the heated cylinder. Lowcock V. Franklin Paper Co., 169 Mass. 313, 47N.E. 1000. Where a boy fifteen years of age, who was familiar with the operation of a machine in a pulp miU, was injured by getting his hand between the rollers while straightening a piece of felt, the danger of operating the machine being apparent at a glance, there being nothing complicated or hidden in the act he was about to perform, and the claim was that he was not warned of the danger of getting his hands in the rolls, and that he did not understand or know there was danger of his getting hurt, it was said no warning that could have been given him eould have made the danger of getting his fingers between the rolls more evident. Bigelow v. Danielson, 102 Wis. 470, 78 N. W. 599. It was held that an intelligent girl of fifteen years of age, must be pre- sumed to know that if she gets her fingers between a roll upon a mangle turning inwardly toward her, and a surface against which it runs in contact, she wUl be injured. In- struction and warning is not re- quired. Groth V. Thomann, 110 Wis. 488, 86 N. W. 178. A lad of fifteen years was presumed to have sufficient intelligence and capacity to appreciate the danger incident to uncovered cog wheels of a wool picking machine which he is oper- ating. The danger is perfectly obvious and hence a claim that he should have been warned of the danger is without merit. E. S. Higgins Carpet Co. v. O'Keefe, 25 C. C. A. 220, 79 Fed. 900. The claim was made that the master should respond in damages to a lad of fifteen years of age, who was injured in the operation of an eleva- tor, caused by the sudden starting of the elevator by a new man whom the former was instructing how to operate it. The former had some §310 Instbucting and "Waening Servant. 699 ciate the dangers of a particular employment has been held a question for the jury.^" experience in operating it. There was no concealed danger. That his claim had no ground of support was held by the court. Sullivan V. LaUy, 166 Mass. 265, 44 N. B. 221. Where an employee in a factory, fifteen years old, fell upon a circular saw, the edge extending about two inches above the surface of an equalizing machine, it appear- ing he had been warned of and appreciated the danger of coming in contact with the saw, his going near it being a voluntary act on his part, it was held that the warn- ing was sufficient and no liability was incurred by the master. Jour- neaux v. E. H. Stafford Co., 122 Mich. 396, 81 N. W. 259. 201. Where a boy sixteen years old was put at work with a danger- ous machine not ia proper condi- tion, though he had some exper- ience in the use of similar machines in good condition, it was held a question for the jury whether warn- ing as to the dangers incident to the use of the machine should have been given him, as well as his capacity to appreciate the dangers of the employment. Chicago An- derson Pressed Brick Co. v. Rein- neiger, 140 lU. 334, 29 N. B. 1106, 33 Am. St. Rep. 249. It was held a question for the jury whether a boy sixteen years of age should have been warned that bottles containing beer, after being sub- jected to a certain process, might explode, while not being moved, it appearing from his evidence that he was ignorant thereof, and there being some evidence from which the master might be held charge- able with knowledge thereof. Ruck V. Milwaukee Brewery Co., 144 Wis. 404, 129 N. W. 414. A boy sixteen years old was killed while operating an elevator. His exper- ience was that he commenced run- ning it on Monday and was kUled the following Friday, and he had occasionally operated it before, and also one for another party. The statute required that the elevator should have been guarded, which was not done. It appeared the check line was very close to the cable and the chain near the ele- vator, and the reasonable inference from all the facts was that, through inadvertence, he took hold of the cable instead of the check Une, and was jammed up against the ceiling. The jury having found that the elevator was not a reasonably safe appliance as respected the per- son employed to operate it, that the defendant was guilty of negli- gence in permitting or causing the elevator to be used in its then dangerous condition, and that the boy was not of sufficient age and experience to com- prehend the danger of oper- ating the elevator, it was held that the verdict against the defendant would not be disturbed. Thomp- son v. Johnston Bros. Co., 86 Wis. 576, 57 N. W. 298. It was held a question for the jury whether a boy sixteen years old, employed in a planing factory, was possessed of such intelligence that he ought to have known the dangerous char- acter of the planer by which he was injured and the risk attendant upon its operation. Adams v. Clymer, 1 700 Master and Servant. §310 In one case it was stated that the fact that the servant knew that if he got his fingers in the machine he was work- ing on, that they would be cut, did not necessarily absolve Marv. (Del.) 80, 36 Atl. 1104. Where a boy sixteen years of age was injured by his hand becoming caught from the drop of a die working automatically of a pressed brick machine, while he was at- tempting to remove a brick from under it, the method of operation of the machine being dangerous, and such employee had received general instructions as to the man- ner of performing his part of the work, but no special reference to the difficulties or dangers attending the same, it was held that, con- sidering the dangerous and rapid movement of the machine, the age of the boy, the nature of the in- structions given, his means of ob- servation and his limited exper- ience, whether he appreciated the risks and dangers connected with each attempt, was a question of faot to be determined by the jury. Hagerty v. St. Paul Brick Co., 98 Minn. 502, 108 N. W. 278. A boy sixteen years old, employed as oiler in the defend- ant's in il l, was injured while attend- ing to a hot box by his hand getting caught in an unboxed gear. It appeared from the evidence that he was usually bright and intelli- gent about machinery, having been employed about mills for four summers and as an oiler several months. It also appeared that his work was done at night; that ordi- narily he oiled the machinery when not in motion; that the box in ques- tion was just within his reach while standing on tip toe and steadying himself on the bridge tree with one hand while oiling with the other. It was held it could not be said, as a matter of law, that the plaintiff, in view of his age, knew and appre- ciated the danger. Kucera v. Mer- riU Lumber Co., 91 Wis. 637; 65 N. W. 374. A lad of sixteen, not fuUy acquainted with the business in which he was engaged, does not assume a risk of which he knows nothing and is not guilty of negli- gence as matter of law, for using imperfect tools when he neither knows where he could get others or that by using them he might be injured. Pelow v. Oil Well Supply Co., 194 N. Y. 64, 86 N. B. 812. Where a boy sixteen years old had been employed as a workman or helper in a machine shop, whose duties chiefly were receiving and putting away mouldings as they came from a moulding machine, and, after working a few months, was ordered to ascend a ladder, of great height from the floor, among rapidly revolving and dangerous machinery, for the purpose of adjusting a belt, and while so engaged had his arm torn from his body, such work being out- side of the scope of his employ- ment and as to which he had no experience, it was said: He was a mere youth, without ex- perience and not familiar with machinery, and was not presumed to know the peril of the undertak- ing. Not being able to judge for himself, he had a right to rely upon the judgment of his superior. It was held that the company was liable, upon the ground that the § 310 Instructing and "Warning Servant. 701 the master from the duty of instructing the servant as to the manner of doing the work instead of letting him. learn from observation. ^^ The duty of instruction has been held to extend to the placing of a belt on machinery. ^°^ A minor under sixteen years, did not assume the risk of injury from a premature explosion of a blast, such work being in charge of his father as foreman, being ignorant of the use and danger of dynamite and his father not having given him instructions. ^"^ Whether the exposed rollers of a corrugating machine were dangerous to the hfe and Limb of a minor under sixteen years of age, was held a question for the jury. ^"^ It has been held that a lad, sixteen or seventeen years of age, has sufficient capacity to appreciate and assume the risk of dangers incident to the position of brakeman. ^"^ And also that the legal presumption is, in the absence of proof to the contrary, that a boy sixteen years old, is capable of recognizing such patent danger as is incident to moving cars, and hence no duty rests upon the master of instruction and warning. ^"^ So where a boy sixteen years old was injured by his hand being drawn in between the revolving cylinders upon action of the foreman was rash and ant as to the manner of operating inexcusable in ordering the boy such a machine safely, and in the into such a place of danger, and particular case, such question was that the risk was not assumed, for the jury. Ertz v. Pierson, 130 Union Pae. R. Co. v. Fort, 17 Mich. 160, 89 N. W. 680. Wall. 553, 21 L. Ed. 739. 203. Nodenv. VeriendemBros., 202. The employer's duty to an 211 Pa. St. 135, 60 Atl. 505. employee of tender years (16) does 204. Walton & Co. v. Burchel, not require him to give warning of 121 Tenn. 715, 121 S. W. 391, 130 the danger incident to the use of a Am. St. Rep. 788. machine such employee is operat- 205. Sterling v. Union Carbide ing (Ohio feed cutter), where the Co., 142 Mich. 284, 105 N. W. 755. latter knew and appreciated the 206. Greenwald v. Marquette, danger of his hands coming in con- H. & V. R. R. Co., 49 Mich. 197, tact with the knives revolving in 13 N. W. 513. plain sight. Yet there may be a 207. Worthington v. Givin, 119 duty upon the part of the employer Ala. 44, 24 So. 739, 43 L. R. A. 382. to instruct an inexperienced serv- 702 Master and Servant. §310 a machine he was operating, and such was the danger to be guarded against, and it was obvious, it was held he could not recover against the employer for such injuries. ^"^ It also has been held that the danger of the hand of an operator getting caught between the rollers of a mangle used in a laundry, is apparent to a girl sixteen years of age operating the same, and that no duty of warning as to such danger is required.^"' Ordinarily it would seem that it is not necessary to warn a boy of the dangers from his hands beiag caught in a buzz saw or planing machine or the like.''" A boy sixteen years old, of ordinary intelligence, who had experience as a night clerk in a depot yard for several years, was held to have assumed the ordinary hazards of his emplojrment.^^^ 208. Pratt v. Prouty, 153 Mass. 333, 26 N. B. 1002. 209. Jones v. Roberts, 57 111. App. 56. 210. A boy sixteen years of age was injured while operating a buzz saw, by his hand coming in contact therewith, and from exper- ience in other factories, not exten- sive, however, it was assumed that he must have known the operation of the machine and its practical workings. To the claim that he had been put to work without any information having been given him while he was ignorant of the dan- gers incident to the use of such saw, it was said he was in the same posi- tion as to knowledge that he would have been had the defendants im- parted to him oral information of the dangerous character of a buzz saw. It was held a motion for non- suit should have been granted. Ogley V. Miles, 139 N. Y. 458, 34 N. E. 1059. The master owed no duty of warning a boy sixteen or seventeen years old, of the danger of his hands becoming caught in the cogs of a planing machine in plain sight, where he had worked with the machine for some time and knew the manner of operation and must have known the danger incident to his use. No warning that could have been given him would have helped him as he already knew the danger. Berlin v. William B. Mer- shon & Co., 132 Mich. 183, 93 N. W. 248. Such a lad is presumed to understand and appreciate tha risk of injury from his hands being caught in exposed gearing and the means of avoiding it although not warned. Mundhenke v. Oregon City Mfg. Co., 47 Oreg. 127, 81 Pac. 977, 1 L. R. A. (N. S.) 278. And to appreciate the danger of contact with knives of a jointing machine located in a shop where he is at work. Palmer v. Harrison, 57 Mich. 182, 23 N. W. 624; Tink- ham V. Sawyer, 153 Mass. 485, 27 N. B. 6. 211. Chicago, B. & Q. R. Co. v. Eggman, 59 111. App. 680. ^310 Instbtjcting and Waening Servant. 703 Other cases where wairdng was held not necessary are set forth below. ^^* Seventeen years old. The application of the general rules has been held in several cases to require instruction and warning in case of a seventeen-year-old boy or at least to raise a question for the jury.^^' 212. A girl sixteen years of age, of reasonable intelligence, working as a servant in a kitchen, tripped upon steam pipes laid in the kitchen which were covered, being raised about two inches above the floor, and fell ca,using her injury. She knew the obstruction was there and had passed over it for several months before the accident. It was held she had assumed the risk. Her- old V. Pfister, 92 Wis. 417, 66 N. W. 355. A minor sixteen years of age, was assumed to have sufficient capacity to appreciate the danger from an unguarded air shaft into which he fell, while performing his usual work, his duty requiring him to pass it several times a day. No instruction could have imparted to him more than what he already knew. Terry v. Schmidt, 54 C. C. A. 83, 116 Fed. 627. It was said in reference to a boy sixteen years old injured while working as a helper to one in charge of a drilling ma- chine, in falling from an icy ledge in defendant's quarry while obeying the order of his superior, that there is a class of cases in which the master is not relieved from liability for injuries to his servant who is required to perform dangerous work, although the danger is obvious and warning and instruc- tion have been given, as when the servant is so young and inexper- ienced as not to be able to compre- hend and guard against the danger to which he is exposed. A master would have no right to set such a servant at work, and he would do so at his peril. But this ease is not of that class, for the testimony does not tend to show that the intestate was any such servant. In the ab- sence of anything to show the con- trary, it must be assumed that he had the intelligence and under- standing that boys of his age usually have. Williamson v. Shel- don Marble Co., 66 Vt. 427, 29 Atl. 669. 213. It was said in reference to a lad seventeen years old that there was evidence from which a jury could infer that the master knew the machine which injured him was dangerous to an inexper- ienced person, and that the danger was not sufficiently obvious to be apparent to such a person without proper explanation and warning. That the plaintiff was not a child but was seventeen years of age, would not deprive bim of the right to be warned, if as a question of fact the employers or the man repre- senting them, ought, under all the circumstances, to have inquired 704 Master akd Seevant. §310 On the other hand, a boy of that age has been held old enough to appreciate the dangers of acting as a brakeman of him as to his experience, or taken notice of the probability that he was so inexperienced as to render it proper to give >n'Tn warn- ing. May V. Smith, 92 Ga. 95, 18 S. E. 360, 44 Am. St. Rep. 84. Where the plaintiff was seventeen yeajs old, had worked in a saw mill when twelve years old, and had been in the defendant's mill as a spare hand for two years, and for four months in the room where he was hurt, and for a day and a half operating the saw in cutting logs, and he was injured while removing a partially cut log by the saw throwing it upward, thus bringing his hand in contact with the saw, it was held that whether the ten- dency of the saw to throw upward any object touching it at the back was such a latent danger as defend- ant was required to warn plaintiff against was for the jury. It was said: "Such source of danger cannot be said to be obvious to one without experience, but is one of those obscure dangers of which an employer should give warning, if he had reason to suppose that a workman who may encounter it in his work does not know of this action of the saw and is ignorant of this particular danger. Hanson v. Ludlow Mfg. Co., 162 Mass. 187, 38N.E.363. Operation of machine. It was held to have been a question for the jury to determine, whether a lad of seventeen years and inexper- ienced, should have been warned as to the dangers incident to the ojjeration of a planer. His foot was caught in the lower cylinder of the machine. Wright v. Stanley, 66 C. C. A. 234, 119 Fed. 330. And also it was held that the question was properly presented to the jury as to whether a lad of seventeen years, inexperieneed, should have been instructed or warned of the dangers incident to the use of a buzz saw. Smith v. Irwin, 51 N. J. L. 507, 18 Atl. 852, 14 Am. St. Rep. 699. OiLiNO GEARING. Where a boy between sixteen and seventeen years of age, without mUl experience and whoUy illiterate, was directed to oil certain gearing, and in doing so his clothing came in contact with cog wheels and he was drawn in and severely injured, not having been instructed or warned, the question whether in view of his age, understanding and experience he assumed the risk, was for the jury. Wankowski v. Crivitz P. & P. Co., 137 Wis. 123, 118 N. W. 643. Set screw on shaft, danger OF CONTACT WITH. Where a boy seventeen years old was injured while performing a duty at the request of his superior who had control over him, caused by his clothing getting caught in a set screw upon a revolving shaft, and the question was as to the master's duty to apprise him of the danger from such shaft, it was said "that if there are concealed dangers known to the employer and unknown to the employee, it is the duty of the employer to notify the servant of §310 Insteucting and Waening Sekvant. 705 or managing a brake in a mine,^^^ operating ordinary their existence, and that the doe- trine is equally well settled, al- though the machinery or the part of it complained of as especially dangerous, is visible, yet if by rea- son of the youth and inexperience of the servant, he is not aware of the danger to which he is exposed in operating it or approaching near it, it is the duty of the master to apprise him of the danger if known to him." Dowling v. Allen, 74 Mo. 13, 41 Am. Eep. 298. AU of which may be true, yet what application it had to the facts is not apparent. What could the master have told him that was not apparent to his senses? Set bcrew in shaft; stepping OVER SHAFT. Where a boy seven- teen years old was working in a foundry, who had been thus em- ployed for some months, & part of the time near a revolving shaft provided with a set screw which caught his clothing as he attempted to step over it or go by it in execut- ing a command of his superior, and it appeared it was in plain sight, though he testified he had not ob- served it before, it was held that a jury were justified in finding that the danger was not obvious to a person of his age of ordinary inteUi- genee and prudence, and that in the absence of warning the master was liable. DowKng v. Allen, 102 Mo. 213, 14 S. W. 751. Putting corn in hopper op MACHINE. It was a question for the jury whether a boy of seventeen years, inexperienced in the work to which he was assigned, of putting com in the hopper of a grinding machine, and who was injured in putting his hand into the spout which had become clogged, to re- move it, should not have been instructed in respect to the manner of doing his work. Standard Oil Co. V. Eiler, 22 Ky. L. Rep. 1641, 61 S. W. 8. Coupling cars. It was held to have been the duty of the master to have instructed a lad of seventeen years in the manner in which he should perform the hazardous duty of coupling cars, where inexper- ienced, and also warn him of the danger incident to the performance of such a duty. Stark v. Port Blakely MiU Co., 44 Wash. 309, 87 Pae. 339. In another court, it was held that whether such an employee should have been so instructed was properly a question for the jury. Atlanta & W. P. R. Co. v. Smith, 94 Ga. 107, 20 S. E. 763. 214. Where a lad seventeen yeajs old, employed as a brake- man, was injured by reason of the parting of a brake chain, it was said that the fact that the plaintiff was a minor did not affect the question of the company's liability. If a minor engages to work, the risks of the business are incident to the work. He cannot claim on account of infancy to be relieved from the consequences of such risks. He might as well claim to enforce the contract for his wages without performing service. If a child of unsuitable age should be employed in a hazardous business or exposed to unsuitable risks, a different ques- 1 M. A S.— 45 706 Masteb and Servant. §310 machines or working about revolving shafts,"^ etc.*" tion might be presented. No ques- tion was made but that the plain- tiff was competent for the service which he was employed to render, and no negligence was imputed to the defendant for employing him on that account. De Graff v. N. T. & H. R. Co., 76 N. Y. 125. An employee was seven- teen years and ten months old when he entered the employment of the defendant as brakeman. It did not appear that it had any knowl- edge of his age, or that because of his appearance it was put upon inquiry as to his age. Seven months thereafter he was injured while in such service. It was held there was no reason for charging the company with negligence in employing him. while he was so young, and in requiring him to per- form the ordinary duties of a brake- man after a seven-months' exper- ience in such service. YouU v. Sioux City & P. R. Co., 66 Iowa, 346, 23 N. W. 736. It was said the law raises no presumption that a boy seventeen years of age is too young to manage properly a brake by which is controlled the hoisting and lowering of passenger coaches in a mine. Walkowski v. Penokea & G. Consol. Mines, 115 Mich. 629, 73 N. W. 895, 41 L. R. A. 33. 215. Where a boy seventeen years of age, of average intelligence, with a limited experience in saw mills, while operating a resawing machine under which was an iron trough, was injured while using a short stick to clean the trough, by inserting his hand under the saw, it was held that the case was con- trolled by those relating to adults, and hence the danger being per- fectly obvious, instruction and warning were not required. Mar- tin V. Detroit Lumber Co., 141 Mich. 363, 104 N. W. 692. It was held that it is not negUgenoe to fail to warn a boy seventeen years of age, who has worked upon a ma- chine, through which cloth in the process of manufacture passes, of the danger of getting his hand in the rolls of the machine from holes in the cloth, though he states he did not know that the cloth was sub- ject to have holes therein, it appear- ing he knew the cloth became frequently torn. Shine v. Cocheeo Mfg. Co., 173 Mass. 558, 54 N. E. 245; Crowley v. Pacific Mills, 148 Mass. 228, 19 N. E. 344. A boy seventeen years old, who has had experience around machinery cannot recover from his employer for an injury caused by the fact that his shirt, being loose, was caught in a horizontal revolving shaft or windlass while he was bending over it to unfasten a bucket, and so drawn around it; the rule being that a minor servant old enough and sensible enough to use his eyes and to take notice of the ordinary operation of familiar natural laws, and to govern himself accordingly, acts at Ms own peril so to do. Kelly v. Barber Asphalt Co., 93 Ky. 363, 20 S. W. 271. 216. Putting belt on ma- chine. It was held that a boy ^310 Instbuctinq and Waening Servant. 707 Eighteen years old. It was said that an employee, eighteen years of age, is presumed to have sufficient intelligence to assume the risks of his employment to the same extent as if of full age and hence his inexperience and need of special in&truction of seventeen, unusually intelligent, injured while putting the belt on a slitting machine, having worked at the machine for three weeks, was not entitled to recover on the theory that he could have been instructed how to work with the machine, and not to replace certain box coverings while the machine was in motion. Hess V. Escanaba Wooden Ware Co., 146 Mich. 566, 109 N. W. 1058. Cleaning endless chain on WHEEL IN PACTOBT. No duty ds- volved upon the master to warn a boy of seventeen of the dangers incident to cleaning an endless bicycle chain on a brush wheel in the defendant's factory. The mst- chine was simple and the danger of the chain being caught and wound around the brush and shaft was obvious. Lennon v. Goodrich, 192 Mass. 293, 78 N. E. 421. Piling lumber on cars. To pile lumber on cars in an ordinary manner is to do work of common laborers, and involves no greater hazard than ordinary manual labor. It requires no skiU or antecedent training, and therefore a youth of seventeen years is not unduly exposed by reason of being left un- instructed in the mode of doing the work or unwarned of the danger. In the absence of evidence to the contrary he wiU be presumed to have sufficient capacity to appre- ciate the danger from the lumber faUing. Sims v. East & West R. Co., 84 Ga. 152, 10 S. B. 543, 20 Am. St. Rep. 352. Employee on handcar. Where a lad seventeen years old, not very bright, on the first day of his work, jumped from a hand car upon the approach of a freight train and was injured, and it was evident he jumped through fear when in fact there was no danger, it was held that he could not recover — that the rule as to instruction of an inexperienced servant did not ap- ply; that if he became dizzy or in fear, it was a result the master had no duty to anticipate. Briggs' Guardian v. Newport News & M. V. Co., 16 Ky. L. Rep. 618, 24 S. W. 1069. Moving block placed on greasy floor to stand on. a lad seventeen years old, employed as a feed hasher in a packing house, injured by a block placed by himself upon a greasy floor to stand upon, slipping, and in the effort to save himself his hands were caught in the machine, assumed the risk. He knew the floor was slippery and also knew that if his fingers were caught in the machine they would be taken off. Warning and instruc- tion was not called for. Cudahy Packing Co. v. Marcan, 45 C. C. A. 515, 106 Fed. 646, 64 L. R. A. 258. 708 Mastee and Seevant. ^310 must, to be available, be shown by him in an action for injmy sustained."^ And also that a brakeman eighteen years old, who had been engaged in such employment for three months prior to receiving injuries by reason of the use of a defective lantern in his custody and keeping, cannot be said to be of such tender years as to be without the discretion neces- sary to a proper understanding and appreciation of the dangers attendant upon such defect. ^^* The duty to instruct and warn has been considered in connection with the operating a saw, ^i' oiling machinery, ^^'' 217. Woodstock Iron Works v. Kline, 149 Ala. 391, 43 So. 362. 218. Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N. E. 795, 39 Am. St. Rep. 251. 219. Where a young man eigh- teen years old was employed to handle wood to be sawed on defend- ant's saws, and on the day of the accident was ordered by the super- intendent to run one of the saws, and while so acting was injured, and it appeared that on other occasions he acted as sawyer, that he knew the saw was defective, and that the method was simple and easy, it was held that judgment for plaintiff should be reversed, without the award of a new trial. It was said it was but reasonable and fair to pre- sume, with his opportunities for learning, that he understood the risk of using the saw, and knew that there was necessity for the exercise of care to prevent being injured, to say nothing of his right to refuse to do the work for which he was not employed. Michael v. Stanley, 75 Md. 464, 23 Atl. 1094. 220. It was said in substance, that any boy of twelve years would know that his hands would be injured if thrust between the cogs, but it is evident that knowledge of the probable results of the inser- tion of his hand, and appreciation of the risk or possibility that his hand might be accidentally drawn be- tween the wheels, are two entirely different things. This was said where a boy eighteen years old was injured while making the effort to oil a machine in a paper miU, and it appeared he had worked in another mill for two years and had frequently oiled a machine of the same character and used for the same purpose, but differing from the one causing him injury, only that the former was a single decker and the latter a double decker. That in each the danger was from revolving cogs in plain sight. It was held that whether the master should have warned him of the dangers to which he was exposed was a ques- tion for the jury. Chopin v. Badger Paper Co., 83 Wis. 192, 53 N. W. 452. §310 Instructing and "Warning Servant. 709 skidding logs,^^^ workiag around more or less simple machinery, ^^^ etc.^^* 221. The rule stated that it was the duty of an employer to inform an inexperienced servant of dangers ordinarily incident to the service, and if he fails therein and the employee has no opportunity to learn of them, the latter will not be held to assume risks not obvious to one of his age, experience and judgment. Hence, where a young man eighteen years of age, large for his age and of average intelligence, was employed by the defendant to assist in putting logs on a sMdway at the foot of a steep hill, to accom- plish which the logs were rolled down the hill, the employees keep- ing them straight by means of cant hooks, and while engaged in this work he was caught by a rolKng log and killed, no one witnessing the accident, and there was evidence which, in the opinion of the court, tended to show that the employ- ment had elements of danger such as were not open and obvious to the inexperienced, but such as, in the absence of instruction, could be learned by experience alone, and that he was inexperienced and had not been warned but had been cautioned, it was held that the question of defendant's liability was for the jury. Wolskd v. Knapp- Stout & Co. Co., 90 Wis. 178, 63 N. W. 87. 222. Crowley v. Pacific Mills, 148 Mass. 228, 19 N. E. 344; Mack- in V. Alaska Refrigerator Co., 100 Mich. 276, 58 N. W. 999; Prentiss V. Kent Furniture Mfg. Co., 63 Mich. 478, 30 N. W. 109; Atlas Engine Works v. RandaU, 100 Ind. 293, 50 Am. Rep. 798. 223. Starting engine with BAR. Where a lad eighteen years old was injured while in the attempt to start an engine from off the cen- ter by means of a bar, and when the engine started he was thrown into some machinery, and it was alleged that he was inexperienced, and that the person in charge of the engine negligently opened or left open the valve by which a fuU head of steam was on the engine, it was held that such conditions justified a verdict for the plaintiff, in the absence of proper warning and instruction. Gartside Coal Co. v. Turk, 147 111. 120, 35 N. E. 467. Removing piece of wood prom SAW. Failure to instruct a boy eighteen years old how to remove pieces of wood from a buzz saw, was held not to be negligence where at most he could only have been told to keep his hands off the knives or he would get hurt. Mackin v. Alaska Refrigerator Co., 100 Mich. 276, 58 N. W. 999. Pushing straw in a straw cut- ter. Unless advised to the con- trary, a master has the right to assume that a boy eighteen years of age is possessed of average intel- ligence; and hence a boy of eighteen years of age, who is put at work pushing straw into a straw cutter with a stick, wUI be presumed, as matter of law, to know and appre- ciate the danger of getting his fingers caught in the rolls and being injured thereby, and his evidence to the contrary does not raise a question for the jury. Roth v. Barrett Mfg. Co., 96 Wis. 615, 71 N. W. 1034. 710 Mastee and Seevant, §310 In one case it was held that knowledge of a brakeman that the space between the main and guard rails was unblocked was not, as a matter of law knowledge of the attendant danger. ^^^ Nineteen years old. A boy of nineteen ordinarily is held to be able to appre- ciate the danger of getting his hand caught in or around machinery,*"^ and the dangers connected with putting a Knowledge op uncovered GEARS. It was held that a minor eighteen, and one-half years old, with experience, who knew the lo- cation of uncovered gears and the effect if his hands came in contact with them in that respect, must be held to the same responsibility as a man. He also knew that the little wheel which slipped off the spindle, the cause of his hand coming in contact with the cogs, was not fas- tened to the spindle and was lia- ble to slip off. It was said: "This court has repeatedly held that the true test as to whether a minor has assumed the ordinary risks of his employment or is guilty of contribu- tory negligence, is not whether he in fact knew and comprehended the danger, but whether under the cir- cumstances he ought to have known and comprehended such danger." Upthegrove v. Jones & A. Coal Co., 118 Wis. 673, 96 N. W. 385. Cleaning gears in motion. An employee eighteen years old, it was held, understood and appres ciated the danger of cleaning gear- in motion under the condition of the use of an automatic gate or cover- ing. Brady v. Ludlow Mfg. Co., 154 Mass. 468, 28 N. E. 901. Wheeling dirt on narrow TIMBER ACROSS DEEP CUT. Where a lad eighteen years old was injured in falling from a narrow timber used as a bridge across a deep cut upon which he was wheeling dirt, his fall being caused by the barrow running off the timber, and it appeared his barrow was somewhat defective, in that it did not run true upon the axle, which he knew, it was said that the plaintiff was a boy of at least average intelligence and ex- perience, and that he could not fail to know that by natural law a hurt is the consequence of a fall; nor could he fail to discern and appre- ciate the danger of the employment in which he was engaged. There was no element of the danger that a bright boy of eighteen could fail to apprehend. It was not needful that he be warned of dangers which were obvious and which he under- stood. No warning could make them more palpable to him. Casey v. Chicago, St. P., M. & O. R. Co., 90 Wis. 113, 62 N. W. 624. 224. Davis v. St. Louis, I. M. & S. R. Co., 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283. 225. A boy nineteen years old, of ordinary intelligence, must be held to understand the danger of getting his hand caught between the cross beam of an elevator and a floor while operating the elevator. Rood V. Lawrence Mfg. Co., 155 Mass. 690, 30 N. E. 174. A boy §310 Insteucting and "Warning Servant. 711 hood in its place in front of the knives on a machine. ^^^ On the other hand, the duty to instruct and warn may exist, ''^^ as where one is ordered to set brakes which is out- side the scope of his employment. ^^^ nineteen years old, unable to speak the Bnglist langruage, was held to have appreciated the danger and risk from getting his hand caught in an appliance he was operating, which revolved at the rate of twelve hundred revolutions a minute. De Souza v. Stafford Mills, 165 Mass. 476, 30 N. E. 81. 226. A boy nineteen years old was held to have sufficient capacity and discretion to appreciate the dangers connected with putting a hood in its place ia front of the knives upon a machine. He had been employed for about three weeks in taking lumber from the machine. It was said that he had fuU opportunity to observe the handling of the hood, and it was not negligence to ask him to place it upon the machine without in- structions, especially as he asked for none. If the operation was especially dangerous, the danger was obvious and he was not bound to obey the order and in doing this he assumed the risk. Crown v. Orr, 140 N. Y. 450, 35 N. E. 648. 227. Where a yoimg man nine- teen years old was set at work in a saw miU close to uncovered gearing in plain sight, so that if he had looked he could have seen it, it was held to have been the duty of the employer to have instructed him as to the particular danger from that source; and not having done so, and the employee having been injured by contact with such gear- ing five days after the commence- ment of his service, the employer was liable. Nadau v. White River Lumber Co., 76 Wis. 120, 43 N. W. 1135, 20 Am. St. Rep. 29. Where a brakeman nineteen years old was injured while coupling cars, one with a Miller hook and the other with the ordinary draw bar, by the draw bar passing each other, and it appeared that he had been em- ployed in that yard for six weeks, and the proof tended to show that he had no actual experience in mak- ing such couplings, and that this fact together with his minority, was known to his superior, who had authority to employ him and who put him to work, it was held that the evidence was sufficient to jus- tify a finding that the defendant was negligent, notwithstanding the employees was informed that the danger of service in the yard was greater than on the road, and the danger of coupling the Miller hook with the ordinary draw head was explained to him. Missouri Pae. R. Co. V. King, 2 Tex. Civ. App. 122, 20 S. W. 1014, 23 S. W. 917. 228. Where a young man nine- teen years old, employed as one of a crew of laborers to work with a construction train, was commanded by the conductor to set brakes, a duty outside the work he was employed to do, and in obedience to such order attempted to do the act and was injured, and it appeared he was inexperienced in such work, it was held that the risk was not one assumed by him. (From late ex- pressions of the court, the ground of the decision was the youth and 712 Master and Seevant. §310 Generally, however, it may be said that inexperience is more controlling as a factor than is age where the servant is nineteen. ^ ^' Twenty years old. It was held a question for the jury whether a young man, nearly twenty-one years old, should have been instructed in the use and warned of the danger of being injured in operating a drying machine, revolving at a rapid rate. ^^" The danger of the hand of an operator, engaged in feeding grain into crushers which consist of two cylinders revolving inwards, in plain sight, getting caught, is appar- ent, and no duty rests upon the employer to give such an inexperience of the employee.) Chicago & N. W. R. Co. v. Bay- field, 37 Mich. 204. 229. Where a young man nine- teen years old, known to the master to be inexperienced as a brakeman, was injured in the attempt to mount a moving oar on the first day of his employment, and the contention was that he should have been instructed as to the perform- ance of such act, it was said that the defendant could not impart to hiTn that which could only be ac- quired by practice. The plaintiff did know from observation the manner of mounting moving cars and of the dangers attending it; therefore it was not required that the defendant should instruct or warn hitn with respect thereto. Yeager v. Burlington, C. R. & N. R. Co., 93 Iowa, 1, 61 N. W. 215. An employee nineteen years old, employed upon a con- struction train in delivering ties upon an unfinished track, injured by the derailing of a car, cannot be said to be void of suf&cient discre- tion to comprehend the dangers of the business in which he was engaged. Evansville & R. R. Co. V. Henderson, 134 Ind. 636, 33 N. E. 1021. Where an employee nineteen years of age was injured while operating a spht saw, and it appeared that he had been in the defendant's employ three years and was put at work on all kinds of machinery, had been employed in the room where the split saw was located, and had worked at in sev- eral days before he was injured, it was held he could not hold the defendant hable on the ground that he was inexperienced, and the de- fendant should have warned him of the danger. The fact that the saw exposed the servant to a peculiar danger which could be foreseen only by practical experience, an instruc- tion could not make the defendant liable if that source of danger was not the cause of the injury. Pren- tiss V. Kent Mfg. Co., 63 Mich. 478, 30 N. W. 109. 230. Evans Laundry Co. v. Crawford, 67 Neb. 153, 93 N. W. 177, 94 N. W. 814. § 310a Instructing and Wabning Servant. 713 operative of the age of twenty years instruction or -warning as to the consequences of his hand being caught between the cyhnders.^^^ § 310a. Duty as applicable to particular acts, appliances or employees. The decisions containing the rules as to warning and instructing servants are largely decisions wherein the rules as to the nature of the danger, whether latent or obvious, the knowledge of the master, the knowledge of the servant, and the youth or inexperience of the servant, are appHed in masse and it is dif&cidt if not impossible in most iastances to classify the facts and the holding as peculiarly illustrating any one particular branch of the general rule. It is therefore deemed advisable in this connection to coUeet some of the cases and classify them according to the facts involved. ^''^ 231. Nuge nt < v Kauffmann Milling Co., 131 Mo. 241, 33 S. W. 428. 232. Automatic working of CONVBTOK OP COPPER BARS. Wliere copper bars were not brought up by an electric conveyor so as to faU at regular intervals on tbe table from whicb they were taken by em- ployeeB, such irregularity consti- tuted a hidden danger of which an inexperienced servant should have been warned. Olsen v. Tacoma Smelting Co., 50 Wash. 128, 96 Pae. 1036. Automatic switch. It was a duty personal to the master to have notified employees that an auto- matic switch was not to be de- pended upon only ia case of emer- gency. A train was derailed when attempted to be run across the switch when not set and an em- ployee was MUed. Thomas v. Cincinnati, N. 0. & T. P. R. Co., 97 Fed. 245; Cincionati, N. O. & T. P. R. Co. V. Gray, 41 C. C. A. 535, 101 Fed. 623, 50 L. R. A. 47. Cleaning tubes containing caustic acid. It was held the duty of the master to instruct and warn a servant inexperienced and with- out knowledge, of the dangers incident to cleaning tubes in a mixing tank containing a caustic solution. Boin v. Spreckels Sugar Co., 155 Cal. 612, 102 Pac. 937. Barbel; lowering into hold VESSEL. A shipwright was injured whUe coming up through a hatch- way by a barrel of cement which was being lowered into the hold of the vessel striking him. The master was held liable on the ground of his duty in furnishing a safe place for work. The place here was safe and only made unsafe by serv- ants whQe performing their duties. The court seems to have held that he should have been warned and the master was personally responsible in not providing for or the giving 714 Mastee and Servant. §310a Approach of trains or cars. A question whieh. has given rise to much controversy is of the proper -warning. The Pioneer, ■78 Fed. 600. Car couplings. It was held where a wiper about a round house was injured while coupling cars with what is termed a stiff goose neck, which the court assumed was not a reasonably safe appliance, and it appeared he had never seen a coupling where it was used, and had not been instructed as to its danger, that the company should have informed him of the dangers and the means of securing safety. Grannis v. Chicago, St. P. & K. C. R. Co., 81 Iowa, 444, 46 N. W. 1067; Galveston, H. & S. A. R. Co. V. Garrett, 73 Tex. 262, 13 S. W. 62, 15 Am. St. Rep. 781. See also "Brakemen," iofra. Chain switch; dangeb incident THERETO. It was held the duty of the master to instruct and warn an iaexperienced servant employed as a foreman and switchman in respect to the dangers incident to the making of a chain switch. Parker V. Crowell & Spencer Lumber Co., 115 La. 463, 39 So. 445. Dissolving zinc chloride. It was held a duty iacumbent upon the master to warn a common laborer, upon requiring him to aid in dissolving zinc chloride, of the danger incident to such work, or to advise him how to avoid injury therefrom. Elhff v. Oregon R. & Nav. Co., 53 Oreg. 66, 99 Pac. 76. Crust forming in operation OP sausage cutter. It was a question for the jury whether the master was neghgent in not inform- ing an inexperienced servant set to work upon a sausage cutter of the fact that a crust might form across the top of the hopper while the meat below had passed out of the machine. The employee sup- posing the machine was not prop- erly feeding, put his hand on top of the crust so formed when it broke and his arm was drawn into the machine and taken off. Rich- ardson V. Swift & Co., 37 C. C. A. 557, 96 Fed. 699. Derrick; double board in slanting position. The master was held Uable for injuries to an inexperienced employee caused by the double board upon a derrick to be in a slanting position and to be slippery from oil and water, where not warned. Producers Oil Co. v. Barnes, 120 S. W. (Tex. Civ. App.) 1023. Difference in construction of FOREIGN cars. A railroad company is not required to instruct or warn an employee in respect to the obvious difference in construction of foreign cars received, from its own cars, such as a difference in the location of a hand grab on a freight car which is perfectly obvious. Woods v. Northern Pac. R. Co., 36 Wash. 658, 79 Pac. 309. Dipping acid mixture from crock. It was held to have been the duty of the master to instruct a young and inexperienced servant as to the dangers connected with the attempt to dip from a crock an acid mixture, especially with a pitcher that had no handle. The pitcher slipped from his hand and some of the mixture splashed into his eyes. Hodde v. Attleboro § 310a Insteuoting and Wabning Seevant. 715 the particular duty of a railroad company with, respect to Mfg. Co., 193 Mass. 237, 79 N. E. 252. Ditch containing hot water. It was held to be tlie duty of the master to inform an employee about to engage in work, of the existence of a ditch of hot water, where he was being shown by another em- ployee his place of work, and it became necessary to cross such ditch, which was unguarded, upon a plank at a place where it was dark. Powers v. Calcasieu Sugar Co., 48 La. Ann. 483, 19 So. 455. Dump pile; excavation in. Whether an employee whose duties included the superintending of the removal of cinders from a dump pile, who, when it was dark and without any hght to such dump pile, in attempting to show it to a new laborer, fell into an excavation in the pUe, should have been in- formed that such excavation had been made, was held a question for the jury. Iroquois Furnace Co. v. McCrea, 191 lU. 340, 61 N. E. 79. Duties op top landbk in mine. It was a question for the jury whether an inexperienced laborer called from his regular employment, to take the place of a top lander at a mine, which required him to fill ore cars at the shaft house and run them down a gravity track, should not have been given in- structions and warning in respect to such duty, the work being dan- gerous and difficult. Granrus v. Croxton Mining Co., 102 Minn. 325, 113 N. W. 693. Electric wires, danger prom CONTACT. It was the duty of the master to warn an inexperienced person who had never performed the duty of lineman of the dangers incident to cUmbing a pole and scraping a Mve wire without being furnished with rubber gloves or other means of protection. Ted- ford V. Los Angeles Elec. Co., 134 Cal. 76, 66 Pac. 76, 54 L. R. A. 85. Excavating bank op cinders AND ASHES. The rule making it the duty of a master to inspect his appliances to ascertain their con- dition as to defects, applies to the place furnished for the doing of his work, and this rule was applied where contractors were engaged in excavating material for railroad ballast from a large bank composed of ashes and cinders, in which were solid lumps of lime paste, one method being to undermine the mass andthus cause it to fall, and an employee was injured, who was di- rected to work in a dark place dimly lighted by a distant lamp, by the fall of a mass of the mate- rial which had been left by the day gang days before while at work, under such mass of projecting mate- rial. It was said it was the master's duty to inspect the progress of the work and to give warning to work- men when danger from such source was discovered. Simone v. Kirk, 173 N. Y. 7, 65 N. E. 739. EXPLOSIVENESS OP CINDER TAPS. It was held a question for the jury whether the defendant should have known that cinder taps were liable to explode when hauled out and dumped on wet ground while hot. The published ease does not indi- cate what the particular breach of duty on the part of the master is, but it is assumed that it was in not sufficiently warning the plaintiff 716 Master and Seevant. §310a giving warning to its employees of the approach of trains. who stood near when such explosion occurred and was injured. Western Tube. Co V. PolobinsM, 192 lU. 113, 61 N. E. 451. Engine pbame, moving or; wobk KEQTTiRiNG SKILL. Where an un- skilled apprentice is directed to do work that requires a skilled mechanic to perforin, and is di- rected to call to his assistance other employees also ignorant of said work, and such work is dangerous, and such danger is known to the foreman and is unknown to such employees, and no notice is given to them of the danger, and he fails to give them instructions which, if given and followed, would have prevented the accident, and one is injured while at said work, the employer is Uable. This was said where an apprentice seventeen years old in a machine shop was directed by the foreman in charge to obey the call and direction of another employee, also an appren- tice, engaged in drilUng an engine frame, which work required a skilled mechanic to safely handle, and the latter removed the clamp that was provided to hold the frame from faUing and attempted to remove the frame, directing the former to remove the trestle under the frame, when it fell, killing him. Missouri Pac. R. Co. V. Peregoy, 36 Kan. 424, 14 Pac. 7. Falling from building. Upon the evidence in this case, the neces- sity for instruction or warning to a lineman who was injured while engaged in driving a plug into a brick building to support attach- ments to hold wires, standing with one foot on a ladder and the other on a window sill, was not apparent. He lost his balance and fell to the ground. Fremont Tel. Co. v. Keel- er, 72 Neb. 613, 101 N. W. 245. Falling trees. It was the duty of an employer's superintendent in falling a tree, to warn employees of its fall, and for failure to do so resulting in injury to an employee, the master was held liable. Curtin V. Clear Lake Lumber Co., 47 Wash. 260, 91 Pac. 956. Floor, condition of. It was held the duty of the master to warn an inexperienced employee and one not familiar with the condition of the floor behind the machine upon which he was working, it being uneven and slippery, of such condi- tion, where he was required to do an act in that position and such place was somewhat dark. Kelland V. Jos. W. Noone's Sons Co., 75 N. H. 168, 71 Atl. 947. Floor, hole in. The evidence was sufficient to justify a finding that the master was negUgent in failing to warn an employee of the existence of a hole in the floor which had been made by a large stone falling upon the floor and which the employee had not had any opportunity to discover before his injury from faUing into it at night. Roundy v. United Box, Board & Paper Co., 103 Me. 83, 68 Atl. 535. And also where the employee, injured by falling into the hole, testified that she did not know the hole was in the floor, and the facts are not such as to charge her with actual knowledge. Ho- gorth V. Pocasset Mfg. Co., 167 Mass. 225, 45 N. E. 629. Frail guard over knives. Fail- § 310a Instbucting and Wabning Servant, 717 It will be observed that courts are not agreed upon tbe ure to instruct a servant that an appliance was frail (tin guard over knives), and insufficient to protect him, the fact being apparent to the servant and he not relying upon its strength, is not neghgence. Erick- Bon V. Cummer Mfg. Co., 140 Mich. 434, 103 N. W. 828. Grain palling in bin. It was actionable negligence to send a boy into a bin of oats whereby he lost his life by the falling of oats, with- out warning him of the dangers to be encountered. Meier v. Way, Johnson, Lee & Co., 136 Iowa, 302, 111 N. W. 420, 125 Am. St. Rep. 254. Guarding car repairer. Where the foreman in the repair depart- ment of a railroad company prom- ised a car repairer before the latter went under a car to watch and see that he was not injured, and also asked two other employees also to watch, and he stated he relied on the promise of all to protect him, and it appeared that the foreman abandoned the watch for a short time, when the car repairer was injured by a car being moved against the one under which he was at work, it was held that the com- pany was liable; that the promise of such foreman was that of the company; and though he may have known that the foreman had aban- doned the watch, yet he was justi- fied in relying upon him to take other adequate means of protection. Missouri Pao. R. Co. v. Williams, 75 Tex. 4, 12 S. W. 835, 16 Am. St. Rep. 867. Guarding employee working upon ice chute. Where the cause of injury to an employee at work in connection with the harvesting and sorting of ice was determined to be the neglect of the superin- tendent in charge to notify the engineer that he was in a dangerous place at the run, where he was engaged in removing an obstacle therein, and the engineer, upon a signal, accidentally given, pre- sumable from something striking the bell cord, started the engine, resulting in carrying the employee along the slide , it was held the defendant was hable; that under the rules it was his duty to notify the engineer, and to remain at the foot of the shde to warn the em- ployee of danger. Gerrish v. New Haven Ice Co., 63 Conn. 9, 27 Atl. 235. Holding in place iron plate. Where a common laborer was directed to assist in holding up and bolting in place an iron plate, form- ing a part of the spout of a bucket conveyor in a beet sugar factory, and while that duty was being per- formed one corner of the plate got inside the spout, caught on a de- scending bucket, injuring such laborer, it was held that the danger was so apparent as not to call for any warning and hence whether the laborer, being merely such, com- prehended that duty, was immate- rial. White V. Owosso Sugar Co., 149 Mich. 473, 112 N. W. 1125. HoESE, VICIOUS habits op. Where the driver of a street car was injured from the kick of one of the team he was driving, and it app«ared that such horse was a broncho, that his propensity to kick when struck with the lines was known to the master, but unknown 718 Masteb and Sebvant. §310a general proposition, much less upon the character and to the driver, the latter never hav- ing driven him before, it was said that it was the duty of the defend- ant to furnish the driver with a safe team or inform him of its vicious habits so he could guard against them. It was held that there was Buflcient evidence to authorize the question of defendant's negU- gence to be submitted to the jury, and judgment of nonsuit was reversed. Leigh v. Omaha St. R. Co., 36 Neb. 131, 54 N. W. 134. Ikpectious disease. Where a servant, ignorant of the danger and unable to know it by the exercise of ordinary care, is exposed by her master without warning to an infectious or contagious disease, and thereby contracts it, the master is Uable, if he either knew or in the exercise of ordinary care ought to have known of the danger. Kliegel V. Aitken, 94 Wis. 432, 69 N. W. 67, 35 L. R. A. 249, 59 Am. St. Rep. 900. Ironing mangle, ttsb op. The defendant should have instructed an employee working a mangle in defendant's laundry, as to the dan- ger from the peculiar action of the mangle, at times stopping and then starting up with a jerk, making it dangerous to the hands of such employee in feeding it. It was said the danger was not apparent. United Laundry Co. v. Schilling, 21 Ky. L. Rep. 1798, 56 S. W. 425. Also to warn a young operative of an ironing mangle, of the danger of her hands being caught in the rollers, when attempting to remove pieces of cloth while the machine was in motion. Manning v. Excelsior Laundry Co., 189 Mass. 231, 75 N. E. 254. The evidence was suffi- cient to sustain the verdict of a jury to the effect that plaintiff's injuries were caused by the negli- gence of defendant in failing to give her proper instruction with reference to the danger of operating an ironing mangle. The employee had worked seventeen days at the same machine which was provided with a guard and her injury was caused by feeding the machine over the guard. Ludvig v. Spieer, 99 Minn. 400, 109 N. W. 832. It was held the duty on the part of the master to warn and instruct an in- experienced girl of nineteen years as to the danger of operating a laundry mangle where she was injured by the improper adjustment of a guard. Quinn v. Electric Laundry Co., 155 CaL 500, 101 Pac. 794. Ladder, extension. No duty rested upon the master who fur- nished an extension ladder for use of painters in painting a house, to warn an experienced painter not to extend the ladder if all three, combined weight of 460 lbs., were to use it at one time. Jacobson v. Favor, 193 Mass. 85, 78 N. E. 763. Land slides. It was the duty of a railroad company to inform those in charge of its trains of the extraordinary risk attending the movement of its trains from land slides after a very severe storm and heavy rain fall, its dispatchers having knowledge that there was a number, and had given notice to the persons in charge of the first section of a train to look out for them at certain places, but not at the place where the accident § 310a Instettcting and Wabning Sebvant. 719 occurred to tte second section, not having given any information to those in charge of the second sec- tion. Mercantile Trust Co. v. Pittsburg & W. R. Co., 53 C. C. A. 207, 115 Fed. 475. Launching scow. It was held that an inexperienced servant called upon by the employer to assist in launching a scow, there being dan- gers incident to such work which he did not comprehend, should have been warned of such dangers. Skinner v. McLaughlin, 94 Md. 524, 51 Atl. 98. Lime kiln, method op work. It was held that an inexperienced employee engaged in working upon a lime kiln, where the duties of employees were, as the burned stone below was taken out, that they should stand upon the mass above and force it down, and as it com- menced to settle to quickly step off, was entitled to instruction and warning of the danger incident to its performance; and where such an employee, while so engaged, faUed to step off in time and was carried down with the mass of unbumed stone and killed, the master was held Uable. Parkhurst v. Johnson, 50 Mich. 70, 15 N. W. 107, 45 Am. Rep. 28. Logging operations. Where a young man eighteen years old, six feet taU and weighting one hundred and eighty pounds, was killed while at work logging, by a log rolling upon him, and it appeared the work he was doing was attended by danger not obvious to one un- accustomed to the work, and that deceased had no experience and was not warned of the danger, the master was held to be liable. Wolski V. Knapp-Stout & Co. Co., 90 Wis. 178, 63 N. W. 87. Lumber piled near track. It is negligence for a railroad company having knowledge of the existence of a pile of lumber so near its side track and contrary to custom, as to be dangerous, to send a switching crew over the track with a train without warning them of the dan- ger. Bradburn v. Wabash R. Co., 134 Mich. 575, 96 N. W. 929. Knives op machinery; contact with. Where a boy nineteen years of age had been employed in de- fendant's machine shop for about three weeks, his duty being to take dressed lumber from a machine, and he was ordered by the foreman to place a hood, used with the ma- chine, in its place in front of the knives, and in so doing his hand came in contact with the knives, causing him injury, and the negh- gence charged was the omission to give him instructions, it was held that as the plaintiff had full oppor- tunity to observe the handling of the hood, it was not negligence to ask him to place it upon the ma- chine without instructions, espe- cially as he asked for none; that if the operation was specially dan- gerous, the danger was obvious and he was not bound to obey the order, and in doing this he took the risks. Crown V. Orr, 140 N. Y. 450, 35 N. E. 648. Where a young man twenty years of age employed as a hostler in the defendant's stables, was sent by the defendant's fore- man to assist in cutting hay with a machine, the knives of which were plainly visible, and, upon the machine becoming clogged, the plaintiff, in attempting to loosen the hay, grasped the tuft with his hand, whereby his hand was drawn in and fingers cut off, it was held that the danger was apparent and 720 Masteb and Sebvant. ^310a the defendant was not negligent in failing to instruct the plaintiff as to it. It was said the duty of an employer to give instructions to one about to work on dangerous machinery exists only when there are dangers in the employment of which he has or ought to have knowledge, and which he has rea- son to believe his employee does not know and will not discover in time to protect himself from injury. In the early cases the doctrine was applied to boys. In favor of adults it should be applied with great caution. Where the elements of the danger are obvious to a person of average intelligence using due care, it would be unreasonable to reqiure an employer to warn his employee to avoid dangers which ordinary prudence ought to make Viim avoid without warning. The mere fact that he cannot tell the exact degree of danger, if the nature and character of it can easily be seen, is not enough to require warn- ing and instruction to a man of full age and average inteUigenoe. Some- thing may properly be left to the instinct of self preservation, and to the exercise of the ordinary faculties which every man should use when his safety is known to be involved. Stuart V. West End St. R. Co., 163 Mass. 391, 40 N. E. 180. Lifting and moving heavy cars; method. Whether the mas- ter should have warned an inex- perienced man working outside his usual employment of the danger involved in lifting and moving a heavy car raised on to the rails of a tramway by using a crowbar and in failing to instruct him as to the proper means to avoid the same, was held a question of fact for the jury. Johnson v. Desmond Chem- ical Co., 156 Mich. 669, 121 N. W. 269. Locomotive, chakacteb op. It was said there is no duty on the part of a railroad company to instruct a skilled and experienced engineer of the dangers of a locomo- tive which he is sent out to operate, where the new locomotive is of the same general character as the one to which he had been accustomed; nor can he predicate a right to recover for an injury received while passing through a bridge with which he is familiar by reason of the fact that the cab of the new engine is six inches wider than the old. Bellows V. Pennsylvania & N. Y. C. & R. Co., 157 Pa. St. 51, 27 Atl. 685. Lockout, providing. (See Meth- od for other eases.) A railroad com- pany operating a construction train consisting of a locomotive way ear and flat ear, the latter being in the rear, was held not to owe a duty to laborers of the work crew to keep a lookout stationed on the flat ear when the train is backing. Burr- man V. Grand Trunk Western R. Co., 143 Mich. 689, 107 N. W. 709. It was held in another case that the question of the master's negli- gence was for the jury where an em- ployee was killed in being crushed between cars while passing between them, it being customary for repair men to pass between them and for defendant when switching to send a servant or servants ahead on the track to warn other employees on both sides of the track of the approach of the switch train, such warning not being given. Hawkins V. Great Northern R. Co., 107 Minn. 245, 119 N. W. 1070, 1135 § 310a Instritcting and Wabning Seevant. 721 Lumber coming down chute. Where a laborer in the employ of one who had the contract with the operators of a saw mill to remove from the miU and pile in the yard all lumber as fast as sawed was injured by lumber coming down up- on a platform, where he was at work, upon him, and such operators had adopted and practiced the cus- tom of warning the men of the coming of such lumber by means of a signal given by a man or boy at the head of the slide, and it appeared that in this particular in- stance such warning was omitted, it was held that such omission to give the customary signal was neg- ligence on the part of such operator, and that it was not negligence for such workman to whoUy rely upon its being given. It was said the duty in the abstract of such oper- ator to give warning by signal of the coming of the timber through the sUde is not involved. It had selected this method of notifying the men at work upon the plat- form of the coming danger; it had adopted and practiced the custom of giving the warning, and the injured laborer had every reason to suppose such custom would be continued. Anderson v. Northern Mill Co., 42 Minn. 424, 44 N. W. 315. Where an inexperienced em- ployee in a mill was injured while working at the foot of a slide by a large stick of timber coming down the slide, striking a stick and forcing it against him, and it appeared that occasionally warning was given by other employees of the descent of sticks of timber down the slide, but that there was no regularity in doing it, nor person selected for or directed to perform this duty, and no warning was given in this instance, it was held that the defendant was negligent in not adopting rules or regulations whereby notice or warning could be given to employees in order that they might guard themselves against the danger. Hartvig v. Northern Pae. Lumber Co., 19 Oreg. 522, 25 Pac. 358. Machine; cleaning. Where an inexperienced employee was set at work upon dangerous revolving machinery used in refining sugar, and was told how to start the machine and how to take the sugar out, but was given no other in- structions, and it appeared that he refused to do the work at the re- quest of his immediate foreman, but did consent at the request of the foreman of the warehouse, and it further appeared that while clean- ing the machine, after the day's work was over, his arm was caught in it, causing him injury, and that he knew how to start and stop the machine, and that it was not re- quired that he should clean it whUe in motion, it was held that there was evidence to show that he was placed in a position of peculiar dan- ger, of which he had no knowledge or experience, without being in- formed of the risks or instructed how to avoid them. O'Connor v. Adams, 120 Mass. 427. Machine; condition and use OP. The evidence was sufficient to sustain the charge of negligence on the part of the master in not warning an Laexperienced employee of the danger, or instruct him with reference to the attachments of the table g:uage, condition of the re- volving knives, and the use of the guard for the knives of a pointing 1 M. & s.- 722 Mastee aitd Seevant. §310a machine. Frazior v. Lloyd Mfg. Co., 98 Minn. 484, 108 N. W. 819. Machine; ptjlling out mate- rial PROM WHEN IN MOTION. The danger of attempting to pull out by hand from a rapidly revolving maoMne, a clog of cotton from a space a quarter of an inch wide, without stopping the machine, was 80 obvious as not to require instruc- tion or warning in respect thereto. Chmiel v. Thomdike Co., 182 Mass. 112, 65 N. E. 47. Machine; liability to start. It is the duty of the master to ac- quaint an employee of the fact with • which he was chargeable with knowledge, that a machine was likely to start up without warning, when the levers were so placed as to cut off the hydraulic power, the employee not having such knowl- edge, and where he was injured by such a sudden starting of the ma- chine. Klaffke v. Betterdorf Axle Co., 125 Iowa, 223, 100 N. W. 1116. An employee who was injured the first day he worked by the auto- matic starting of the machine, the machine having often started the same way before, it was held the master was negligent in failing to warn such employee of such danger. Patterson v. Harrisburg Trust Co., 211 Pa. St. 173, 60 Atl. 265. Machine, movement op. It was stated to be neghgenee on the part of the foreman of a saw mill, chargeable to the master, to call on one of its employees suddenly on the spur of the moment, to take a dangerous position in the mill, with- out giving him any instructions or explanation of the movement of the machinery, or the risk and hazard of the employment with whieh the employee had neither a previous knowledge or acquaint- tance. James v. Rapides Lumber Co., 50 La. Ann. 717, 23 So. 459, 44 L. R. A. 33. Machine, baws in, danger PROM. It was held by a divided court a question for the jury whether a carpenter set at work at a lath machine, and injured some ten or twelve days after he com- menced such work, while cleaning the debris from under the machine, by his hand coming in contact with a saw which protruded two or three inches below the bench, thus being to some extent concealed, should have been instructed as to the danger from such source. It was said, however, the usual danger of contact with such dangerous im- plement as a circular saw in rapid motion is obvious to all who have reached the years of discretion, when it is in plain sight. Campbell V. Eveleth, 83 Me. 50, 21 Atl. 784. It was held, where an employee who had worked twenty days near an exposed circular saw, who knew that the saw was uncovered, and was injured by his sUpping upon the floor, forcing his foot against it, that it could not be held as matter of law that he assumed the risk. That whether he knew or ought to have known and appreciated the risk and danger was a question for the jury. Dajcey v. Farmers' Lumber Co., 87 Wis. 245, 58 N. W. 382. An employee on the day after his employment to work upon a machine in a mill used for cutting ofl the ends of lath, was injured by shpping and falling upon project- ing saws. It was alleged that the defendant was negligent in permit- ting an accumulation of bark and sawdust to remain upon the floor § 310a Insteucting and "Waening Sebvant. 723 where he stood, and in not covering the saws, and in failing to instruct him as to the dangers, he being thirty-five years old and inexperi- enced. It was held that the risks were incident to the service which he assumed. It was said the rapidly revolving saws were in plain sight, where the plaintiff could not help but see them, and he knew per- fectly well, without instruction or information, that if he fell upon them or came in contact with them he would be injured. In respect to the accumulation of saw dust and refuse upon the floor, he must be held to have known that his footing would be insecure, and that it exposed him to the danger of stumbling and falling. He did not need, and had no right to expect, any instruction or caution regarding a matter so entirely obvious to the humblest intelligence. Hazen v. West Superior Lumber Co., 91 Wis. 208, 64 N. W. 857. It was said that to hold that an employer was negli- gent in failing to warn a carpenter that a circular saw was a dangerous machine and of its liability to throw a stick, if one got upon the saw, would be preposterous. Dela- ware River Iroi Ship Building Co. V. NuttaU, 119 Pa. St. 149, 13 Atl. 65. And by another court, that there was no duty resting upon the master to inform an experienced workman with a lath saw of the danger of a stick being caught and thrown in the direction of the revo- lution of the saw. Mississippi River L. Co. v. Schneider, 20 C. C. A. 390, 74 Fed. 195. Machine tipping when being MOVED. The danger of a machine under which trucks are being placed tipping over, is one within the common knowledge of boys as well as men, and hence does not call for warning. Wagner v. Piano Mfg. Co., 110 Wis. 48, 85 N. W. 643. Machine; treadle in, pttnc- TioNS OP. The master is not re- quired by law to explain or instruct an ordinary intelligent person as to the obvious function of a treadle, nor anticipate that the servant was ignorant of the existence or the function of the treadle of a ma- chine, which the servant could plaintly see in operation. Rahles v. J. Thompson & Sons Mfg. Co., 137 Wis. 506, 118 N. W. 350, 119 N. W. 289, 23 L. R. A. (N. S.) 296. Manner op using tool. It was held in the particular case that it was the personal duty of the master to properly instruct an employee in the manner in which to use a tool, for cutting off rivet heads, so as to avoid injury from the chips coming in contact with his eyes, and for a neglect of this duty the master was held liable. BrockmiUer v. Industrial Works, 148 Mich. 642, 112 N. W. 688. Mine, loose stones in shaft. It was held the duty of the super- intendent of a mine, who knew that stones had been continually falling from the slope of a mine at a cer- tain place which rendered such place more dangerous than other parts, to notify a servant put at work in such place of such danger. Deweese v. Meramec Iron Min. Co., 128 Mo. 423, 31 S. W. 110. Moving cars by staking. The danger of moving cars by staking, because of the liability of the stake to break in the hands of the person holding it, is so obvious that a master may assume that a servant 724 Master and Seevant. §310a ordered to undertake it will see and comprehend the hazard, and he is not liable for a failure to give warning. Watts v. Hart, 7 Wash. 178, 34 Pae. 423, 771. Moving heavy piece of iron ON ITS EDGE. The Care required and the danger to be apprehended from moving by hand heavy pieces of iron on their edges, is plain, hence instruction and warning is not required to one experienced in that kind of work. Cunningham v. Ft. Pitt Bridge Works, 197 Pa. St. 625, 47 Atl. 846. Moving piles. It could not be said, as matter of law, that the work of moving piles did not re- quire more than ordinary knowl- edge and skill, nor that one unac- customed to such work should have known, that the use of bars instead of cant hooks, was an inferior im- plement for such purpose, nor that he knew such work would be dan- gerous, although he must have known that if his bar slipped while he stood upon a round pile he would be in danger of losing his footing and injury might result. Anderson v. Illinois Cent. R. Co., 109 Iowa, 524, 80 N. W. 661. Method adopted in unloading HEAVY MACHINE. The pcrfls of the method adopted in unloading a heavy machine from a car, having been known to defendant's super- intendent some considerable time before the machine was overturned, and not obvious to an employee injured thereby, it became his duty to notify such employee thereof. Hamann v. Milwaukee Bridge Co., 136 Wis. 39, 116 N. W. 854. Passageway. An employer was held negligent in leaving a gate eading to a passage way unfastened at night, through which a domestio passed in returning to her master's premises, without at least placing a light there or giving her warning of the danger from a depression in the passageway into which she fell causing her injury. Battle v. Rob- inson, 27 R. I. 588, 65 Atl. 273. It was held to have been the duty of the master to warn a servant of dangers incident to a passageway in a mill. Barrett v. Banner Shingle Co., 45 Wash. 12, 87 Pao. 919. Operation op sausage ma- chine. While ordinarily an em- ployer is under no duty to warn an employee of the danger upon com- ing in contact with moving ma- chinery, if injured where the peril is obvious yet where an inexperienced person is called from his regular employment to operate such a machine, with no opportunity to observe the working of the machine, and there is danger in the mechan- ism, unless the machine is properly and carefully operated, which he is not likely to observe, there rests up- on the master a duty of instruction and warning as to the dangers he may not appreciate. The rule applied where an inexperienced person was called to operate a sau- sage machine and the pecuUar danger consisted in the probability, unless familiar with the action of the feed screw, that the employee might suffer injmy by his hand being caught, if the meat was pressed down too far. Boyd y. Taylor, 195 Mass. 272, 81 N. E. 277. Orb crust, palling op. An employee was injured by the fall- ing of an overhanging crust of frozen ore. There was evidence § 310a Insteucting and Waening Seevant. 725 to the effect that he had been warned of the danger of shoveling ore from beneath such crust. He was injured however, while assist- ing to remove a baorow along a track, at a different place from his place of work, where warned, though by the same element of danger. When injured he was act- ing in obedience to an order of the foreman. It was held that even if such warning was given, it did not necessarily preclude his recovery for his injury. Illinois Steel Co. v. Olste, 214 lU. 181, 73 N. E. 422. PlECH OF STEEL TLTINQ IN CUTTING STEEL BAILS. An inex- perienced employee assisting in holding a steel rail while it was being out in two with chisels and hammer, was struck in the eye by a piece of steel flying when a blow was struck. There was evidence that there was danger in such work, unless the person guarded against it by a hood and inclining the head when the blow was struck. It was held a question for the jury whether the master was negligent in failing to warn and to instruct him as to the means of lessening the danger. Vohs V. ShorthiU, 124 Iowa, 471, 100 N. W. 495. Pile op ieon plates, liability TO TALL. Where an employee was Injured by the fall of a pile of iron plates, insecure from the presence of ice upon them, it was held, although such piling was only tem- porary and for convenience in handling them for immediate use, and was done by feUow-servants, that a duty was imposed upon the master to warn an employee of the condition of such pile of plates and the risks and dangers thereof. It appeared that the foreman was warned of the condition of the pile but failed to warn such em- ployee. Hamm v. Bettendorf Axle Co., 125 N. W. (Iowa) 186. Piling logs upon skidwat. Pihng logs in high places upon a skidway is work of such a special comphcated and hazardous nature, that it is the duty of the master to inform an employee engaged in pihng such logs, without any ex- perience whatever, of the nature of the risk and the hazard incurred. The employee was injured by a log when raised to the top of the pile, swinging around and striking the logs upon which he stood. Dell v. McGrath, 92 Minn. 187, 99 N. W. 629. Pole, danger from. It was the duty of a foreman of an elec- tric company, when informed of danger on a pole of another com- pany, to give a lineman in the employ of his company information thereof before sending him upon the defective pole. Shanks v. Citizens General Elec. Co., 25 Ky. L. Rep. 811, 76 S. W. 379. Whether an in- experienced servant, an electric lineman, should have been in- structed or warned as to the dan- gers incident to striping a decayed pole, was a question for the jury. Sias V. Consolidated Lighting Co., 79Vt. 224, 64Atl. 1104. Pole, removal of support. Where an employee was killed by the falling of a pole which was being lowered, and its support had been a pile of coal around its base, and he wae working near without knowledge of the danger from the manner in which the work was being done, that is, the removal of the coal from its base, and the em- ployer failed to advise him, it was 726 Master and Sebvant. §310a held that the master was liable, upon the ground that his duty was to provide his workmen with a reasonably safe place to work, and to warn them of dangers of which they were ignorant. Trainor v. Philadelphia & R. R. Co., 137 Pa. St. 148, 20 Atl. 632. An experienced lineman was injured in falling from a pole by reason, as alleged, of the pole which was bent by reason of a messenger wire being taut, attached to a cross arm, which, upon being released, the pole sprung back, which was the occasion of his fall- ing. The evidence was to the effect that the foreman had knowledge of such condition as to the cause of the pole being bent. It was held a question for the jury whether he should not have advised the line- man of this fact before ordering him upon the pole in question. Long V. Johnson Co. Tel. Co., 134 Iowa, 336, 111 N. W. 984. Pole, bawinq down; method. Failure to instruct a servant, an experienced lineman, but without experience in the matter of sawing a pole at a distance above the ground as to the manner of doing that work, was held to charge the master with liability where in sawing the servant placed one hand above the saw, and when the pole was partly sawed it broke and knocked the' plaintiff off the pole. Western Union Tel. Co. v. Burgess, 47 C. C. A. 168, 108 Fed. 26. Pole, falling pkom; caused bt KECOIL OF CABLE. No instructiou or warning was required to be given a lineman injured in being thrown from a pole while engaged in lifting a cable from one insulator pin to another, by the recoil of the cable. The danger was open and obvious. Meehan v. Holyoke St' R. Co., 186 Mass. 511, 72 N. E. 61. Pulley block, danger hand BEING DRAWN IN. There was no duty on the part of the master to warn a servant of the danger of his hand being drawn into the puUey block, while holding on to the rope when the power was applied by horses. The whole operation was open to view and its operation plain. Gavin v. Fall River Automatic Tel. Co., 185 Mass. 78, 69 N. E. 1055. Repairing steam pipe. An em- ployee having a general familiarity with defendant's machinery was ordered to take off one length of pipe from the discharge pipe of a trap, and to put on another. To do this work safely, the steam in the pipe where it entered the trap should have been cut off and a vent in the trap opened. The employee shut off the steam but did not open the valve, and he was injured by the escaping steam. The master was held negligent in failing to instruct and warn the employee. Putz v. St. Paul Gaslight Co., 108 Minn. 243, 121 N. W. 1109. Removal of supporting post IN MINE. The evidence was suffi- cient to sustain a verdict based upon the negligence of the master in not giving proper instructions and warning as to the dangers of the work that he was ordered to do. The employee was directed to assist in the removal of a post which was one of the supports of the piece of timber upon which the ore in the roof of the drift in the mine rested. While trying to remove the post from the overhead structure, the ore fell upon him. Kostrezeba v. Hobart Iron Co., 103 Minn. 337, 141 N. W. 949. § 310a Instbucting and Wahning Servant. 727 Removal of caps from boxes HOLDING SHAFT. It WES held to be the duty of the niaster to warn an inexperienced servant of the danger incident to the removal of the caps from the boxes, which hold the shaft, that the shaft thereby might fall. The employer should have anticipated the caps would be removed. Hamel v. New Market Mfg. Co., 73 N. H. 386, 62 Atl. 592. Removing clogged ptjlp from. An inexperienced servant at work upon a paper machine and injured while trying to remove pulp from a roUer which it had clogged with a stick, when the proper way was to remove it by water, was entitled to have been warned of the danger of the method used and instructed in respect to the proper method. La- pelle V. International Paper Co., 71 N. H. 346, 51 Atl. 1068. Rollers in, danger from. Where the servant injured was thirty-two years old, and was assumed to be familiar with ma- chinery, and the machine which caused him injury was simple in construction and the danger obvi- ous, the manner in which he was injured being that of getting his hand between the rollers, it was held the defendant was not neghgent in failing to warn him of the danger, though it be assumed it was his duty to run the machine during the temporary absence of the per- son in charge of such machine. Richstain v. Washington MiUs Co., 157 Mass. 538, 32 N. E. 908. It was held that a woman who had worked several weeks upon a ma- chine understood and compre- hended the danger of getting her fingers between revolving cyUndeM. ConnoUy v. Eldredge, 160 Mass. 566, 36 N. E. 469. The inexpe- rience of a servant must come either actually or by inference to the knowledge of the master, and then it becomes his duty to warn the servant against such dangers as the servant is not reasonably expected to know and such as are not obvi- ous to him. An inexperienced serv- ant who was under age and could not speak English, was injured by his hand becoming caught in the rolls of the machine. It was stated that a nonsuit should have been granted. Stolarz v. Algonquin Co., 77 N. J. L. 147, 71 Atl. 57. Removing clogs of cotton FROM BEATER IN MOTION. It WaS 3, question for the jury whether a person of some experience speaking English but imperfectly should have been instructed upon the somewhat hidden dangers of the attempt to remove clogs of cotton from a beater, while in motion. De Costa V. Hargraves Mills, 170 Mass. 375, 49 N. E. 735. Saw; absence of safeguards. After stating quite fully that the master's duty does not require him to adopt such appKances as have been found by actual test to mate- rially contribute to the reduction of injury or accident, nor required to furnish the latest improvements, yet, where an employee without experience in operating a circular rip saw was injured, it was said the employer could have reduced the danger by furnishing the saw with reasonably safe appUanees or by warning or instructing the em- ployee. It was held that the em- ployee did not, as matter of law, assume the risk. Dow Wire Works Co. V. Mwgan, 29 Ky. L. Rep. 854, 96S.W.530. Saw, contact with. It was 728 Master and Servant. §310a held to have been the duty of the master to instruct an inexperienced servant in the use of a cut off saw, although the danger from contact with it was perfectly obvious. It was said there was danger from involuntary contact brought about from improper use of the saw. Wikstrom v. Preston Mill Co., 48 Wash. 164, 93 Pac. 213. See also Tergeson v. Robinson Mfg. Co., 48 Wash. 294, 93 Pac. 428. Sawing timber through, sup- PORTtNQ A PLATFORM. It WaS the duty of the superintendent, if alter ego of the master, to inform an em- ployee of the danger, where he directed the sawing of a timber through, supporting a platform, which caused the platform to faU, and also his duty to prop the same before it was sawed through, where he attempted to prop it after his attention was called to the danger, before the parting of the timber, and to cause the sawing to be discontinued until the prop was in place. For a neglect of such duty the master was liable for an injury to an employee caused thereby. Connolly v. Hall & Grant Const. Co., 192 N. Y. 182, 84 N. B. 807. Shock prom defective light- ing APPLIANCES. Where an em- ployer had knowledge that electric lighting appliances in the room where employees are working, were defective, and that persons fre- quently received shocks while trans- ferring the electric light bulb from one socket to the other, it was held at least his duty to warn an em- ployee so working of the possible danger in so transferring the bulb. Aga V. Harbach, 140 Iowa, 606, 117 N. W. 669. Steam on in boiler. Failure to instruct a workman sent into a boiler that steam was on in other boilers having ooimection, was actionable negligence. Kewanee Boiler Co. v. Erickson, 181 lU. 649, 54 N. E. 1044. Steel fragments flying from hammer. Where the work of ham- mering wheels was at all times accompanied by danger because small pieces of steel broken from the face of the hammers would fly off with sufficient force to inflict injury to a person hit thereby, the master was required to instruct and warn an inexperienced and imma- ture servant of the danger, and whether one who had been em- ployed in a shop where such work was being done for about two years, knew or ought to have known of such danger, was held a question for the jury. Kerker v. Bettendorf Metal Wheel Co., 140 Iowa, 209, 118 N. W. 306. The duty to warn a servant of the danger from fragments of steel flying in the process of cutting steel rails with a chisel and sledge hammer, was one imposed upon the master in view of the ignorance and inexperience of an employee thus injured. Vohs V. Shorthill & Co., 130 Iowa, 638, 107 N. W. 417. It was held nevertheless that the danger from flsdng pieces of steel from chipping the steel rolls of an ore crusher, being perfectly obvious, the em- ployer is not required to warn an employee so engaged of such danger. Cripple Creek Sampling & Ore Co. V. Souza, 37 Colo. 393, 86 Pac. 1005. Starting machine. It was held the duty of the sawyer in a mill to notify an employee in a dangerous § 310a Instbucting and Waening Sebvakt. 729 position between two logs, that the machine was about to be started to roll one of the logs, and to give him reasonable time to escape. The sawyer as to such duty repre- sented the master. Maloney v. Stetson & Post MiU Co., 46 Wash. 646, 90 Pac. 1046. It was held gross negligence chargeable to the master for the superintendent of a mill, after informing a repairman he was going to shut down the mill for half an hour, to suddenly start the machinery without signal or warn- ing, whUe such repair man was in a dangerous position. Mathews v. Daly-West Min. Co., 27 Utah 193, 75 Pac. 722. Starting movement of shaft. Where the employer directed an employee to work near a line shaft and in an extremely perilous position, if the shaft was put in motion, and the shaft was put in motion without notice or warning, and that by reason thereof such employee was caught by the revolv- ing shaft and killed, negUgence and liability of the master was shown. Ready v. Peavy Elevator Co., 89 Minn. 164, 94 N. W. 442. Saw opekatoe, defective eye BIGHT. It was held the duty of the master to warn and instruct an employee inexperienced and with defective eye sight, in respect to the dangers and duties of operating a saw in a miU. The foreman had knowledge of the employee's in- firmities. The injury was caused by the hand of the employee com- ing in contact with a saw in plain sight. Warren Vehicle Stock Co. v. Siggs, 91 Ark. 102, 120 S. W. 412. Shaft in mill. Where an em- ployee in a miE was ordered by the foreman to go up a ladder which was standing against a belt box into which a revolving shaft was run- ning, and naU a board on the box, and it appeared he had worked in the mill a long time and was acting within the scope of his duties, and that he was injured by his apron and jacket catching in the shaft, which was plainly visible and was observed by him, and he could have moved the ladder to the opposite side of the box, where there would have been no danger, and it was urged that he was sent into a place of concealed danger without warning and instruction, it was held that the facts would not support the claim. Russell v. Til- lotson, 140 Mass. 201, 4 N. E. 231. There is no duty cast upon the mas- ter to warn an experienced servant of the existence of a shaft which was in plain sight and obvious to every one engaged in operating a machine, the motive power of which was furnished by the shaft. Chishohn v. Donovan, 188 Mass. 378, 74 N. E. 652. A statute re- quired the boxing of aU shafting operating near a passageway. A female in a factory was injured by her skirt becoming entangled in an uncovered shaft on the outside of the building and near a window, where to the knowledge of the master such window was customa- rily used as a passageway. It being alleged that she did not appreciate the danger, having no knowledge of machinery, and that she was not warned of the danger, a cause of action was stated. Wheeler v. Oak Harbor Head Lining & Hoop Co., 61 C. C. A. 250, 126 Fed. 338. Shaft near place of work. Where a laborer was called upon to assist in raising heavy timbers to 730 Mastee and Servant. §310a the second floor of a building, and he had to stand upon a bar of iron and brace himself against the wall of the building to perform it, and •was injured by his clothing getting caught in a shaft close to him of which he was ignorant, it was held that he should have been warned of the danger connected with the performance of his duties by reason of the proximity of such shaft. Pullman Palace-Car Co. v. Harkins, 5 C. C. A. 326, 55 Fed. 932. Yet it was held the master was not required to warn of danger from a rapidly revolving metalHo shaft. The danger is so obvious as to be apparent to any adxilt of common sense. Commercial Guano Co. v. Neather, 114 Ga. 416, 40 S. E. 299. Whether there was the duty of warning an employee set to work in a vat immediately be- neath a revolving shaft, of the dangers attendant upon the place, it was held, upon the evidence, was a question for the jury. Morris v. Malone, 200 111. 132, 65 N. E. 704, 93 Am. St. Rep. 180. Shaft, oiling. The oiling of a line shaft in a properly lighted room, does not require any special instruction or cautioning or sugges- tion from the master to a man of mature years, though it involves reaching over gear wheels in mo- tion. Hathaway v. Washington MiU. Co., 139 Mich. 708, 103 N. W. 164. Soda oil, use op. An experi- enced employee knowing that soda oil was in common use in a mill, is not entitled to warning that it was used in cleaning vats in a paper mill instead of soap for cleaning, where he claimed that, as he was stepping from a beam to a ladder in getting over the edge of the vat, he slipped and fell. Thompson v. Norman Paper Co., 169 Mass. 416, 48 N. E. 757. Stairs, condition op. There was no occasion for warning a fe- male employee of the danger of falling while descending newly con- structed stairs, which had been treated with oil and shellac, pro- tected while drying by a loose piece of pasteboard placed on each step. There was nothing she could have been told that she did not already know. Mclntire v. White, 171 Mass. 170, 50 N. E. 254. Shoveling bean in elevator bin. It was a question for the jury whether a laborer sent into an elevator bin to shovel bran should have been instructed as to the dan- gers incident to the act, such as the liability of a large quantity of the bran, when started, to fall upon the workman. Such danger was not a patent one nor one which an inexperienced person would be presumed to understand and appre- ciate. The case is distinguished from the gravel pit cases. Lund v. Woodwarth, 75 Minn. 501, 78 N. W. 81. Starting carriage in mill. It is not required that warning be given of the starting of the carriage in a saw mill where it is uniformly started as soon as the cant hooks are removed from the cant. Olsen V. North Pacific Lumber Co., 106 Fed. 298. Starting op train. No duty of warning is owing to a brakeman on the top of a rear car that the train is about to start. Johnston v. Canadian Pacific R. Co., 50 Fed. 886. Stone raising. An employee was injured while assisting in raising a large stone in the pattern jrard, by § 310a Instructing and "Wabning Servant. 731 another stone insecurely laid upon a sloping surface slipping, pre- sumedly from an accumulation of stone chips. It was held the fore- man should have given the men pre- cautions for their safety (what pre- cautions could or should have been given is not stated), as he was chargeable with the conditions within his observation. Lammi v. MUford Pink Granite Quarries, 196 Mass. 336, 82 N. B. 26. Street car; running board at SIDE. A street car company is not bound to instruct a conductor with nine years' experience, when taking out for the first time an open summer car with a running board on the side whereby it was ex- tended nearer cars on the other track, of the danger of being struck by such cars while on such board. Fletcher v. Philadelphia Traction Co., 190 Pa. St. 117, 42 Atl. 527. Striking steel with hammer; EFFECT. The master may assume that an employee understands the probable effects of striking a mass of steel with a sledge hammer, that particles of steel may become sep- arated and fly from the force of the blows, and hence he is not in duty bound to warn the servant in re- spect thereto. Sabere v. Benjamin Atha & Co., 75 N. J. L. 307, 68 Atl. 103. Stopping moving cab with PINCH BAR. It was held by a majority of the court that the danger of attempting to stop a oar, on a down grade, having consider- able momentum, with a pinch bar, the bar being thrown from the serv- ant's hands and caught by a second wheel, so as to hold his foot to the ground, from which position he could not extricate himself without help, was not obvious and apparent. Gussart v. Greenleaf Stone Co., 134 Wis. 418, 114 N. W. 799. Stopping moving car on grav- ity track. The question of the master's negligence was presented in failing to instruct and warn an employee as to his duties and the danger coimeeted with stopping a loaded car on a gravity track in defendant's mine. Arko v. Shen- ango Furnace Co., 107 Minn. 220, 119 N. W. 789. Temporary work. If the em- ployee knows or may reasonably be supposed to know the dangerous character of the temporary work to which he is called, the employer is not negligent in requiring the work without explaining its char- acter. Hanson v. Hammell, 107 Iowa, 171, 77 N. W. 839, citing Wormell v. Maine Cent. R. Co., 79 Me. 397, 10 Atl. 49, 1 Am. St. Rep. 321; RummeU v. Dilworth, 111 Pa. St. 343, 2 Atl. 355, 363; CahiU V. Hilton, 106 N. Y. 512, 13 N. E. 339. Torpedo on track. In placing a torpedo on a track, it is not the duty of the company to place a flagman there to warn section men on an approaching hand car. Galveston H. & N. R. Co. v. Mur- phy, 52 Tex. Civ. App. 420, 114 S. W. 443. Track, cinders at side. Where a brakeman was injured in the night time while in the act ol jumping from a slowly moving train to adjust a switch, which waa the usual method of performing this duty, and there had been dumped on the sides of the track since he had performed the same duty, which was the morning ol the day he was injured, a car load ol 732 Mastee and Sebvant. §3iUa cinders, whloh lay in heaps, and he alighted upon one suoh, lost his footing and fell under the train, it was held that it was the duty of the defendant to have notified him of suoh increased danger, and it was liable for its omission so to do. Kansas City, Ft. S. & G. R. Co. V. Kier, 41 Kan. 661, 21 Pae. 770, 13 Am. St. Rep. 311. Track; closeness op rails. The conditions were such that the track leading from defendant's quarry to- the stone crusher was, among other things, defective, the rails being laid too close together, causing a car which an employee had assisted in replacing upon the track to fall upon him. It was said that before sending the em- ployee to replace the car on the track, the employer should have investigated and ascertained the condition of the track and if found unsafe to advise the employee. Momence Stone Co. v. Turrell, 205 lU. 515, 68 N. B. 1078. Trench. It was held the duty of the master who was construct- ing a trench or ditch, where one of the employees was put at work by the foreman in an unusually dangerous place, to give him proper warning and instruction, and the act of the foreman in so directing the servant and his omission to give instruction were chargeable to the master. Carlson v. North Western Tel. Exch. Co., 63 Minn. 428, 65 N. W. 914. There is no latent or concealed danger in dig- ging a trench seven feet in ground frozen to the depth of three feet, that requires a master to take special care to warn and protect his servants from injury by reason of the frozen earth falling into the trench. The risk and danger are apparent and a risk assumed. Hodgson V. Michigan Cent. R. Co., 146 Mich. 627, 109 N. W. 1125. Master was held liable for injuries to an employee working in a ground pit, on the ground of failure to warn him of the danger of the bank falling. Whether the danger was obvious does not appear. St. Louis S. W. R. Co. V. Marshall, 120 S. W. (Tex. Civ. App.) 512. Trench; stand pipe in, falling IN being elevated. There was no duty upon the master to instruct an experienced bridge carpenter directed to repair drains, as to the danger involved in performing the work. A fellow-servant raised up a stand pipe sufficient for the carpenter to insert his hand to re- place the ball bearings without placing anything in the opening. The cross bar slipped and the pipe fell on plaintiff's hand. Balsem v. Iowa Cent. R. Co., 140 Iowa, 73, 117 N.W. 1098. Trimming grind stones. Where an employee had worked in a machine shop for a year and has seen grindstones trimmed by others, and had been shown by the foreman how to trim them, and had worked upon them himself once before the accident to him, and he was injured by the iron bar which he was using to hold the stone, thus crushing his hand between the bar and the stone, it was said that the danger must have been as apparent to him as to any one of more experi- ence, and therefore he assumed the risk. Melzer v. Peninsular Car Co., 76 Mich. 94, 42 N. W. 1078. Truck on elevator moving against hot. It was held the duty of the master to have in- § 310a Instructing and Warning Servant. 733 structed and warned a boy twelve and one-half years old in respect to the danger in using an elevator where injured by a truck thereon moving against him. Jenson v. Wm & Finck Co., 160 Cal. 398, 89 Pac. 113. Unblocked pbogs. It was held by the Texas Court that it was the duty of a railroad company to instruct an inexperienced switch- man of the danger from unblocked frogs. Galveston H. & S. A. R. Co. V. Hughes, 22 Tex. Civ. App. 134, 54 S. W. 264. Unguarded knives in machine. It was for the jury to determine whether an inexperienced servant should have been warned of the danger of working around a mould- ing machine, the knives of which were not guarded. The employee was injured while bracing his foot against the end piece of a moulding machine for the purpose of pulling a board out of it, and his toes were caught by the knives. Torske v. Commonwealth Lumber Co., 86 Minn. 276, 90 N.W. 532. Water pipe resting on blocks, liability to fall. An employee was injured ■while assisting to raise a section of waterpipe in a trench by its falling from the temporary blocks upon which it rested. It was urged that the employer was negligent in not informing him of the dangers incident to his work. It was held there was no evidence to sustain that position. It was said the dangers were visible, and any man of ordinary intelligence, in the exercise of ordinary care, although not an expert in the business, could not have failed to comprehend them. Johnson v. Ash- land Water Co., 77 Wis. 51, 45 N. W. 807. Well near place op work. Where a person was employed to make repairs on a steam engine located in the employer's cellar, and close to the place where he was required to work there was a well hole filled with hot water, of which danger the employee did not have notice, and he was injured by stepping into it, it was held that an instruction to the effect that it was the defendant's duty, under the circumstances, to give the plaintiff proper warning of the dan- ger from such source or to guard the well, was proper. Homer v. Ever- ett, 91 N. Y. 641. Walls in a mine unsupported. It was the duty of a mine operator to notify an employee put at work in an excavation wherein the walls were unsupported by stall timbers, without informing him of the fact, which it well knew, but of which he was ignorant, that the waUs had been left unsupported since the preceding day, and that the character of the waUs was such that those which appeared safe were liable, if left without support, to break suddenly and fall. An- drews V. Tamarack Min. Co., 114 Mich. 375, 72 N. W. 242. Wheel moving. The general rule requiring instruction and warn- ing was applied where a servant was injured by the faUing of a wheel of great weight, which he and other servants were rolling from one shop to another. It was for the jury to say whether he should have been instructed how the work could be safely performed. The evidence did not show negligence of the master in failing to direct other means to do the work, or in requiring it to be done by an insufficient number of men. Beards- 734 Master and Sebvant. §310a sufficiency of the warning to a particular employee. ley V. Murray Iron Works Co., 129 Iowa, 675, 106 N. W. 180. Wheeling brick across track; prequbnct op passing cabs. it was held the personal duty of the master to warn an inexperienced servant, whose duty was to wheel brick across a private track, as to the frequency of cars passing, his place of duty being such that he could have no view of the coming cars until they would be close upon him. Weiss v.Bethelehem Ire n Co., 31 C. C. A. 363, 88 Fed. 23 [af- firmed in 40 C. C. A. 270, 100 Fed. 45.] Working near dangerous ma- chine. The rule requiring the mas- ter to instruct an employee who from youth, inexperience and ignor- ance or want of general capacity may fail to appreciate the danger to which he may be exposed, where the employment is dangerous, can- not be ignored even with the em- ployee's consent. This rule was applied where a young girl was employed in a woolen factory to sweep in front and rear of a ma- chine, without warning her of the danger from cog wheels. The starting of the machine, while the girl was sweeping behind it, by a feUow-servant, was not the proxi- mate cause of her injuries, in her clothing becoming caught in the cog wheels. O'Connor v. Golden Gate W. Mfg. Co., 135 Cal. 537, 67 Pao. 966, 87 Am. St. Rep. 127. Whereabouts of trains. It was said to be the duty by law of a rail- road company to adopt such meas- ures as are reasonably safe to in- form its employees of the where- abouts of trains upon the track on which they are operating another train so as to enable them to guard against collisions and to protect themselves from injury; the law, however, has not undertaken to designate the particular means by which this duty shall be discharged, nor to indicate any particular oflScer or employee upon whom it shall be devolved. Houston & T. C. R. Co. V. Stewart, 92 Tex. 540, 50 S. W. 333. 233. Where plaintifif in the employ of a contractor of defend- ant, engaged with defendant's knowledge in grading for a new railroad track alongside and parallel to defendant's main track, was injured by some portion of the sides of the cars in a train running on such main track striking him as he was making an effort to get out of its way, and it appeared that it had been the uniform practice of those operating trains to give such workmen warning of the approach of trains by signals, which in this particular instance was omitted, it was held that the defendant owed the workmen the duty of active vigilance in giving them proper sig- nals of the approach of trains, and that they had under the circumstan- ces the right to rely upon the con- tinued performance of this duty, without the necessity, while en- grossed in their work, of them- selves keeping a constant lookout for approaching trains. The duty of the defendant would be the same whether the workmen were in its employment or in that of its contractor. It would not ordi- narily be the duty of those operat- ing a train to stop it or siacken its § 310a Instbxjcting and Warning Sebvant. 735 The giving of a signal that a train is approacMng is often speed provided they gave the proper signals. They would have a right to presume that the workmen would heed the warrdng and move from the place of danger. But if the trainmen saw they did not hear the signals and were making no effort to escape, it would then be their duty to stop the train if there was stiU time to do so before injuring them. Erickson v. St. Paul & D. R. Co., 41 Minn. 500, 43 N. W. 332, 5 L. R. A. 786. While an employee, such as a car checker, working in a railroad yard, assumes risks incident to his em- ployment, yet where it was custo- mary to give warning of the ap- proach of oars being kicked upon the tracks, where such class of em- ployees were at work, he had the right to rely upon such custom, and govern himself accordingly. Meadowcroft v. New York, N. H. & H. R. Co., 193 Mass. 249, 79 N. E. 266. Where an employee was injured while engaged in painting stationary cars standing on a switch in a shed, by an engine backing around a curve into the shed to couple on cars standing ahead of the one upon which plain- tiff was at work, pushing them against it, it was held that it was the defendant's duty to warn him of the approach of the engine, and if warning was attempted by means of persons caUing out to him, it should have been so distinct and loud that it might have been heard by a person of ordinary hearing in plaintiff's locality. Miss- issippi Cotton Oil Co. V. Ellis, 72 Miss. 191, 17 So. 214. It was held to be the duty of those operating an engine in passing over a bridge towards a point where they know a group of men are working, to give warning signals of the approach of the engine. A failure so to do is negligence for which the master is responsible to one of such mea injured by such neglect, in the absence of contributory negligence. Cason's Adm'r v. Covington & C. Elevated R. & Transfer & Bridge Co., 29 Ky. L. Rep. 352, 93 S. W. 19. Where a station agent went upon a track signalling an approaching train which was back- ing down, and was injured, as was alleged, by the negligence of the men in charge of the train, and it was shown from the testimony to have been the duty of those operating the train to have had a brakeman on its rear, who might give warning of its approach, it was said that it was no excuse to say that the company was using, instead of the usual caboose, a box car which did not conveniently admit of those customary precau- tions. The principle was applied that when a workman's presence on the track was known to those operating an approaching train, and due care was not exercised in giving warning in time for tL.e workman to save himself and pre- vent a wreck, the master is liable. Illinois Central R. Co. v. Mahan, 17 Ky. L. Rep. 1200, 34 S. W. 16, 26 Ky. L. Rep. 547. It was the duty of a railroad company to in some manner warn an employee working on its tracks shoveling sand there- from, of the approach of a train, where he could not be expected to see it. Albanese v. Central R. Co., 736 Mastee and Seevant. §310a the duty of the section foremen, so far as men working under him are concerned.^'* 70 N. J. L. 241, 57 Atl. 447. It ■was negligence on the part of the foreman to order oars kicked onto a side track where a car repairer, to his knowledge, was at work, be- tween other oars on the track, with- out giving him proper warning. Street's Western Stable Car Line V. Bonander, 196 lU. 15, 63 N. E. 688. It was held a duty personal to the master to warn employees who were housed in camp cars of the running of other oars against them with such f oroe as to move the house cars, thereby causing the injury to one of such employees. Illinois Cent. R. Co. v. Panebiango, 227 lU. 170, 81 N. E. 53. It was a ques- tion for the jury whether an em- ployer (not a raihoad company) was not guilty of actionable wrong in failing to provide for some warning of the danger from ap- proaching cars to one who was engaged in coupling cars. Pecard V. Menominee River Sugar Co., 153 Mich. 84, 116 N. W. 532. See also Bowes v. New York, N. H. & H. R. Co., 181 Mass. 89, 62 N. E. 949. An employee on a transfer track, engaged in ooupKng cars, is entitled to be warned of cars being kicked thereon and against the cars he is coupling, by another crew, especially in the night time, and not to do so is negligence. St. Louis, I. M. & S. R. Co. v. Mo- Cain, 67 Ark. 377, 55 S. W. 165. The moving of railroad cars by a locomotive on a warehouse track, where the space between an ordi- nary car and the warehouse is only about fifteen inches, is such dan- gerous business as to arouse the duty of the railway company to promulgate regulations requiring warning to be given by the em- ployees in charge, whenever such cars are to be moved. Bein v. Northern Pac. R. Co., 120 Wis. 412, 98 N. W. 241. An employee en- gaged in shipping grain from a loaded to an unloaded oar, on par- allel tracks, was entitled to warn- ing of the approach of cars being shunted on the tracks. Chicago & E. R. Co. V. Shaw, 54 C. C. A. 77, 116 Fed. 621. A brakeman ordered to go between cars by the conductor to repair a coupling, was entitled to warning of the intended movement of the cars. Though if he is performing the ordinary duty of a brakeman in coupling cars, such warning is not required. Bowes v. New York, N. H. & H. R. Co., 181 Mass. 89, 62 N. E. 949. It being the custom to warn em- ployees working on cars when upon side tracks, when trains were moved thereon, an employee may safely rely upon such warning being given, and hence does not assume the risk of failure to give it. CarroU v. New York, N. H. & H. R. Co., 182 Mass. 237, 65N.E.69. Where a master sends a servant to work on an unfinished car, it is its duty to provide against the moving of such car without giving him proper warning. If the duty is to be performed by another employee, he represents the master. Koerner V. St. Louis Car Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292. 234. Where a track master of a railway company employed an § 310a Instructing and Warning Servant. 737 However, there is ordinarily no duty to warn an em- ployee such as a flagman of the approach of trains. ^^^ inexperienced person with his traia to scrape snow from the tracks on a very stormy day, and as an induce- ment promised to advise him of the approach of trains, and such per- son was injured by being struck by a train, of the approach of which he had not been warned by such fore- man, it was held that the neglect of such foreman would be imputed to the company, and it was liable. Bradley v. N. Y. C. R. Co., 62 N. Y. 99. Where a section foreman directed a section hand to shovel cinders from the track on a windy day, and while the latter was so engaged he was run down by an approaching train, it was held that it was a question for the jury whether such foreman was negli- gent in directing the plaintiff to work on the track when a train was nearly due without keeping watch and warning him of the approach of the train, as well as whether the engineer of the train was negligent in failing to give such trackmen signals of warning until the engine was nearly upon him. Comstock v. Union Pac. R. Co., 56 Kan. 228, 42 Pao. 724. It having been the custom for the foreman of a section crew to g^ive warning of the approach of trains, for a neglect to do so, whereby one of the crew was injured, the mas- ter was held liable. Germanus v. Lehigh VaUey R. Co., 74 N. J. L. 662, 67 Atl. 79. It was held the duty of a foreman of a section crew to give such notice of the approach of a train as to enable his men to get out of danger from flying cin- ders. Houston & T. C. R. Co. v. 1 M. & S.- Polloek, 115 S. W. (Tex. Civ. App.) 843. On the other hand, it has been said that negligence could not be predicated upon the failure of a section boss to give employees under him warning of the approach of trains. It would be most un- reasonable to require the master to keep a special watch over every employee and warn him of every common danger to which he might be subjected in the performance of his ordinary duties, and the law does not require it. Ring v. Mis- souri Pac. R. Co., 112 Mo. 220, 20 S. W. 436. And also that a rail- road employee working on the track, could not rely on a warning being given him of the approach of trains by the foreman, where for some twenty-five minutes he had been separated from the rest of the crew who were at work under the foreman at a place at least 350 feet from where he was struck by the train. Blute v. New York, N. H. & H. R. Co., 195 Mass. 395, 81 N. E. 188. While it was the custom for the foreman of a gang of track laborers while at work, to warn them of the approach of dan- ger, and also the custom when one of them was working alone and separated from the rest of the gang that he should look out for his own safety, yet, where a member of such gang was working over 300 feet from the others, and was run down by a train, it was held the master owed him no duty of warning. Precodnick v. Lehigh VaUey R. Co., 74 N. J. L. 566, 65 Atl. 1047. 235. A railroad company owes a crossing flagman no duty to warn 738 Masteb and Servant. § 310a Of course, failure to "warn an employee of the approach of a car, where such duty is required, is not ground for recovery where the employee otherwise had notice, as for instance by seeing it approach. "° Warning was not required by the foreman to a track- man on a hand car, of the approach of a train which was on schedule time, where his opportunities for observation were as good as those of the foreman. ^" An instruction that if an employee, a section hand, was injured by the negligence of an acting foreman in not tak- ing proper steps to notify him of an approaching train in time to clear the track, he could recover, was error, where the emp oyee heard the approaching train in time to clear the track and knew no steps had been taken to warn A railroad company is not bound to maintain a signal to warn the men on a hand car of the situation of section men on the track. ^^' Statutes requiring signals to be given of the approach of trains, specifying when and under what conditions to him of the approach of trains, and of its approach. It is the flag- is not liable for the death of such man's particular duty to watch for servant caused by his being run approaching trains and give warning over at the crossing whUe flagging to those who may come upon the another train, though he was not crossing. Coleman's Adm'r v. warned of the approach of the train Pittsburg, C, C. & St. L. R. Co., 23 that ran over him. Zulke v. Michi- Ky. L. Rep. 401, 63 S. W. 39. gan Cent. R. Co., 147 Mich. 192, 236. Riddle v. Forty Second 110 N. W. 493. It also has been St. M. & St. N. Ave. R. Co., 173 N. held that no duty is imposed upon a Y. 327, 66 N. E. 22. railroad company to keep a look- 237. The trackman was injured out on its trains or give a flagman in jumping from the hand car while at a crossing warning of the slowly proceeding and the other approach of trains. It is his duty to men removed the car before the keep a watch for approaching approach of the train. Kitzberger trains. Conniff v. Louisville, H. & v. Chicago, R. I. & P. R. Co., 4 St. L. R. Co., 30 Ky. L. Rep. 982, Neb. (Unof.) 324, 93 N. W. 935. 99 S. W. 1154. And also that it is 238. Ft. Worth & D. C. R. not the duty of a railroad company, Co. v. GUstrap, 25 Tex. Civ. App. as respects aflagman at a crossing,to 304, 61 S. W. 351. have an employee on the rear end 239. Brunell v. Southern Pao. of a backing train to give warning Co., 34 Oreg. 256, 56 Pao. 129. § 310a Insteucting and Wabning Seevant. 739 be given, are not exclusive. There may arise conditions where it is the duty of those in charge of an engine to give warning signals, where not expressed in the statute. ^^° Crevices in banks, mines, quarries, walls, etc. Whether the master is bound to warn a servant as to crevices in or about the place of work is governed by the general rides. ''^^ 240. Davy v. Great Northern R. Co., 128 N. W. (N. Dak.) 311. 241. Where an employee was injured by the faU of a bank of earth while working at the bottom of a steep shaft, and he did not know there -n as a crack in the side of the shaft indicating that the earth was liable to fall, and the defendant knew of the existence of such fissure and failed to inform him, it -was held that he should have been informed, and therefore did not assume the risk. Strahlen- dorf V. Rosenthal, 30 Wis. 674. It was held the duty of a uperinlend- ent of a quarry, who had knowl- edge, to warn an emploj^ee working beneath a mud bank having a crevice, of its Liability to fall. Peer- less Stone Co. v. Wray, 152 Ind. 27, 61 N. E. 326. It was held to have been the duty of a street com- missioner in charge of certain work to have notified employees working in a gravel pit, of the existence of a crack in the wall thereof, and hence his failure so to do was held, negli- gence imputable to the city. Town of Colorado City v. Liafe, 28 Col. 468, 65 Pae. 630. Where the dan- ger to laborers engaged in loading ears in a gravel pit is greatly in- creased at times by the caving off of an embankment by other laborers, and the foreman at such times had always given warning of such dan- ger, it was held that an instruction to the effect that the laborers were entitled to such warning and were not required to keep as constant a watch as they otherwise would be required to do, stated the law. The foreman was held not a feUow-serv- ant. Andreson v. Ogden U. R. & D. Co., 8 Utah, 128, 30 Pae. 305. Where the owner of a building, superintending the work of tearing it down, knew of dangers incident to the work, such as the existence of a crack which might cause the wall to fall, he was held to the duty of warning and instructing an em- ployee engaged in the work of the dangers to be apprehended there- from. Ryan V. Tarbox, 135 Mass. 207. It was held that a servant working in a mine where he was exposed to dangers from falling rock, threatened by a crevice which was known to the superintendent and unknown to such employee, did not assume the risk; that the mas- ter's duty was to take precautions to obviate the hazards and to warn employees thereof. Pantzar V. Tilly Foster Iron Mining Co., 99 N. Y. 368, 2 N. E. 24. Where a servant was placed at work loading rock from a cliff, and the defend- ant's road master knew the cliff was dangerous, owing to a seam or crack therein, visible only from the rear of the cliff, and he fai ed to 740 Master and Seevant. §310a Falling of bank of earth or other matter. WMle ordinarily the danger from the falling of a bank of earth is obvious, yet in some cases warning has been held necessary or the question of negligence has been held one for the jury.''*^ Blasting. Of course if a servant is inexperienced or of tender years, he should be carefully instructed and didy warned of the warn the servant of the danger, and it was unknown to the servant, it was held that the defendant was liable. EUedge v. National City & O. R. Co., 100 Cal. 282, 34 Pac. 720, 852, 38 Am. St. Rep. 290. 242. It being the custom of the foreman superintending the reduc- tion of a bank of earth, to warn employees of the fall of a section, and he omitted so to do by reason of his attention being diverted tem- porarily, and a section fell without the customary warning being given, the question of the negUgence of such superintendent was for the jury. The action was brought under the Employers' Liability Act. Rafferty v. Nawn, 182 Mass. 503, 65 N. B. 830. The danger from a bank of earth falling when it was being worked with a steam shovel, to remove it, was held not obvious to an inexperienced servant, and hence he should have been warned. It was said the situation should have been explained, the danger pointed out and the employee cau- tioned to be on his guard. Daly V. Kiel, 106 La. 170, 30 So. 254. It was the duty of the master to warn an employee of the danger of a bank of lime and other materials falling, where the servant had no knowledge of the danger, nor an opportunity to learn of it. It wsa held a personal duty on the part of the master to inspect such work. The decision was based upon the ground of failure to furnish a safe place of work. Simone v. Kirk, 173N.Y.7,65N.E.739. Whether it was the duty of the railroad com- pany to notify a workman in a gravel pit, whUe working at night, of the liability of a bank of earth to fall, where its dangerous condi- tion 'was seen by the road master shortly before the accident, and likewise as to whether the servant was chargeable with knowledge of the condition of the bank of earth, was for the jury. Thompson v. Chicago, M. & St. P. R. Co., 18 Fed. 239, 5 McCrary 42. Where a common laborer was injured by chunks of solid clay falling upon him while he was working in an excavation, and there was evidence which justified the finding that the cause of the material falling was a blast which had been exploded in the solid bank of clay during the temporary absence of the laborer, and of which he had no knowledge, it was held that the question of the master's negligence in failing to advise him of the increased peril, was for the jury. Kohout v. New- man, 96 Minn. 91, 104 N. W. 764. § 310a Insteucting and Wabning Servant. 741 dangers arising from blasting. On the other hand, if the servant is experienced and the dangers are obvious, warning is generally not required. ^^' 243. An employee who engages in blasting and knows or ought to know that the danger in charging a hole with powder, within a few minutes after springing the hole, is not entitled of right to warning of the attendant danger, the duty of warning only being presumed when the servant is not presumed to have knowledge of the danger. Hardy v. Chicago, R. I. & P. R. Co., 139 Iowa, 314, 115 N. W. 8, 19 L. R. A. (N. S.) 997. Where, however, an employee in a quarry was injured by the explosion of a dynamite cartridge, caused by his forcing it in a hole which was too small to admit it without being pressed, it was held by a divided court that it could not be said, in view of the evidence, that danger from such cause would be presumed to have been known or ought to have been known by such employee who was a driUer and was not charged with the duty of loading the holes, though he as well as other drillers sometimes did it, to the knowledge of the foreman in charge. That the question whether he should have been instructed and warned was properly submitted to the jury. Kopf v. Monroe Stone Co., 140 Mich. 649, 104 N. W. 313. It has been stated in a case where it appeared that a common laborer was injured by the explosion of a blast of dynamite, which previously had missed: "It devolves upon the master who finds it necessary or expedient to use hazardous agencies in the conduct of his busi- neEB, to inform his servants not informed on the subject, of the ex- traordinary risks and dangers at- tending their use, in order that they may avoid them by refusing to continue in the service or otherwise protect themselves against them." Rankel v. Buckstafl-Edwards Co., 138 Wis. 442, 120 N. W. 269, 20 L. R. A. (N.S.) 1180. This lan- guage is general and as to some dan- gerous agencies might be appro- priate. It is not pointed out what particular warning shouldhavebeen given or ordinarily should be given. Simply to inform them of the "extraordinary risk." It is a matter of common knowledge that the use of dynamite for any pur- pose is dangerous, that it is a dan- gerous agency. To inform an employee of that fact, is to add nothing to that which he is pre- sumed to know. The facts were that the expert which had been employed examined the crevice and concluded the blast had exploded. He was mistaken in his judgment. The conditions did not caU for any warning. The question of warning was not involved. Where it has been the custom to warn employees in a quarry that a blast is about to be exploded, it may be that a person who is charged with that duty may be negligent in failing to observe the customary method. Whether such negligence is im- puted to the master is a question as to which, as already stated, the courts are not agreed. Hjelm v. Western Granite Contracting Co., 98 Minn. 222, 108 N. W. 803. See Jaeobson v. Hobart Iron Co., 103 742 Master and Sebvant. §310a Instruction to section hands. The work of a section hand is not so dangerous nor complicated that much instruction or warning need be given, unless perhaps, as already referred to, in connection with the approach of trains. ^^* Minn. 319, 114 N. W. 951. It was said it would not be neglige jce in law to leave unexploded cartridges of dynamite in old holes in the pit of a quarry, when new holes are being driUed, but it would be the duty of the master to warn a servant of this particular danger unless he knew or ought to know that they were frequently left from imperfect explosions. Erickson v. Monson Consol. Slate Co., 100 Me. 107, 60 Atl. 708. It was held a duty personal to the master to notify the fireman of the night shift who was asleep in a tent, the place provided for him, made dangerous from blasts discharged by the day crew, so as to give him timely warn- ing to enable him to avoid the danger. Ormanv. Salvo, 54C. C. A. 265, 117 Fed. 233. It was held a duty personal to the master of giv- ing warning to certain employees in a steel manufactory, of the impending blowing of a blast of molten metal, so as to enable the employee to reach a place of safety. Illinois Steel Co. v. Ziemkowski, 220 111. 324, 77 N. E. 190, 4 L. R. A. (N. S.) 1161. A master may use appliances when necessary that are particularly daagerous to em- ployees, provided precautions are taken to guard against such dangers which reduces the dangers to a "condition of reasonable safety. This duty includes proper instruc- tions and warning. A workman should have had notice of the pecu- liar danger arising from the use of dynamite, for instance, an unex- ploded blast. Welch v. Bath Iron Works, 98 Me. 361, 57 Atl. 88. Where the master has knowledge of the risks and dangers not discover- able, that are incident to the work to be performed by a servant, and he is also aware of the servant's inexperience, and fails to inform him of the precautions and care necessary for him to take in order to avoid injury, and the servant is injured without any negligence on his part, the master will not be allowed to exonerate himself by showing that the servant failed to exercise the same degree of skill to avoid injury as his more experienced fellow-workmen. It was held the duty of the foreman, in charge, to inform an employee in a mine of the precautions necessary for him to take in order to avoid accidents by the explosion of missed or hidden shots that might be imbedded and concealed in the bottom of the shaft. Anderson v. Daly Min. Co., 15 Utah, 22, 49 Pac. 126. 244. Railroad section hands are presumed to know how to break bolts holding rails together, and hence it is not the foreman's duty to instruct them how to do it. St. Louis, I. M. & S. R. Co. v. Jami- son, 87 Ark. 511, 113 S. W. 41. § 310a IlsTSTBTJCTING AND WaENING SeEVANT. 743 Brakemen. The duty to instruct and warn brakemen has been considered in many cases, ^" especially as to the danger from low bridges, ^^' the danger from using certain kinds of coupUngs,^*' etc. 245. Where a brakeman was injured by being thrown from a car while letting loose a brake, and it was alleged that the cause was that the brake had a limber staff which was more dangerous than one with a stiff staff, in that it required greater effort to loosen it, and when loosened might jerk or throw the employee, and it appeared that the brakeman had an experience of about two months, and the claim was that he should have been warned of the dangers and in- structed in the use of such brake, it was held that the question was proper for the jury. Louisville & N. C. R. Co. V. Binion, 107 Ala. 645, 18 So. 75. 246. It was said in reference to the duty of a railroad company in respect to warning its employees of the danger from low bridges, that when a brakeman is placed on a freight train running on a road with which he is not familiar, and such a train has to pass under a low bridge or bridges, the law, which simply voices the sentiment of humanity, requires that notice be given him of the danger he is to encounter. This notice must be reasonable, that is, he must be rea- sonably instructed so as to put bim on the lookout and on inquiry and observation, that he may in- form himself of the locality of the place of danger. The whole duty is not on the railroad company. The employee must give heed to the notice and instructions given him, and must employ his senses, his reasoning faculties and his atten- tion alike for his own safety and the welfare of the road. If he has not been sufficiently warned or no- tified to enable him, by proper at- tention, and diligence, to learu where the perils of the danger are, then this would be negligence for which the railroad company would be liable. On the other hand, if he has been sufficiently warned or notified, and from inattention, in- difference, absent mindedness or forgetfulness he fails to inform himself or fails to take the necessary steps to avoid injury, this is negH- gence and he should not recover. Louisville & N. R. Co. v. HaU, 87 Ala. 708, 6 So. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84. 247. The use of an old style bumper does not constitute such a peculiar hazard as to require the company to notify its employees of the danger incident to its being coupled, when it is apparent to the eye that there is not space enough for two cajs to be coupled by a man standing between them. The dan- ger of so coupling is obvious, and therefore the company is not bound to warn the servant whose duty requires him to couple cars. Simms v. South Carolina R. Co., 26 S. C. 490, 2 S. E. 486. Where a brakeman of some four weeks' ex- perience in the service was injured whUe coupling foreign cars with 744 Master and Servant. §310a Exposed cogs and gearing. There may be, in some cases where the servant is of double deadwoods, and it appeared that lie had not had any experience in coupling such kind, it was held that it was not negligence to fail to warn such employee of the in- creased hazard, such risk being apparent and one incident to the risks assumed. It was said that the duty in such cases is to warn the employee of latent dangers, but no duty is imposed to explain to the servant patent dangers which are ordinarily incident to the serv- ice, and which it may reasonably be expected, under the circum- stances, the servant can see and ■appreciate. It appearing that the increased hazard in coupling such cars was open to the ordinary ob- servation of any person using rea- sonable care and prudence, it was not negligence to omit to warn the servant. To the suggestion that he was obliged to perform this duty in a hurry, it was said that it did not change the ru e, but that such impairment of his opportunity for observation would be charge- able to the negligence of the engi- neer, his eUow-servant. Louis- viUe & N. R. Co. v. Bo and, 96 Ala. 626, II So. 667, 18 L. R. A. 260. See Norfolk & W. R. Co. v. Cottrell, 83 Va. 512, 3 S. E. 123; East Tennessee, V. & G. R. Co. v. TurvaviUe, 97 Ala. 122, 12 So. 63. Where, however, a brakeman who had been in the service five or six days, was injured while coupling foreign cars with double deadwoods, and his evidence was that he had never before seen cars thus equipped and had not been warned of the danger, it was held that the defend- ant should have instructed him as to the dangers — in fact should have given him an object lesson — and therefore a verdict for the defendant was error. Reynolds v. Boston & M. R. Co., 64 Vt. 66, 24 Atl. 134, 33 Am. St. Rep. 908. See also Illinois Cent. R. Co. v. Price, 72 Miss. 862, 18 So. 415. It is not an omission of duty on the part of a railroad company to fail to warn an inexperienced brakeman of the great danger incident to coupling cars that are supphed with double deadwoods, than cars hav- ing the ordinary device, where he is famUiar with the latter. Such increased danger is obvious and one incident to the service. Boland V. Louisville & N. R. Co., 106 Ala. 6i41, 18 So. 99. Where the claim on the part of a brakeman who was injured while coupling cars with double deadwoods was that by reason of his inexperience he should have been warned of the danger, his testimony being to the efiect that he was ignorant thereof, and it appeared he had served five years as a brakeman upon one of the principal roads of the country, that he was twenty- three years of age, and the instruc- tion to the jury was such that the appellate court assumed that the trial court had assumed as matter of law that such employee was inexperienced, it was held that the question should have been submitted to the jiu^ upon all the evidence. The court approved of what was said in KeUy v. Abbot, 63 Wis. 307, 23 N. W. 890, 53 Am. Rep. 292, which was in effect that § 310a Instructing and Wabning Servant. 745 tender years, a duty to instruct him as to the danger from exposed cogs, gearing or rolls. ^^^ Generally, however, there is no such duty where the servant is an adult. ^^^ the risk of coupling cars of such character was one incident to the employment of a brakeman. Hughes V. Chicago, M. & St. P. R. Co., 79 Wis. 264, 48 N. W. 259. It was held to be the duty on the part of the master to warn an inex- perienced brakeman of the danger connected with the act of coupling cars with couplings of a peculiar character, which rendered the act more than ordinarily dangerous. LouisviUe & N. R. Co. v. Veach, 20 Ky. L. Rep. 403, 46 S. W. 493. 248. Where the evidence dis- closed that a youth sixteen years old, appreciated the fact that the position he assumed in adjusting a belt exposed his arm to liability to injury from uncovered gears, the rule was applied that where one who attempts to do work, which exposes him to obvious known and appreciated dangers, assumes the risk of injury, and however the knowledge may have been ac- quired, there is no obligation upon the employee to give the workman warning of a known danger. It is not necessary in order to bar a recovery, that he should appreciate the whole extent of the danger. Downey v. Sawyer, 157 Mass. 418, 32 N. E. 654. See also Rooney v. Sewall & Day Cordage Co., 161 Mass. 153, 36 N. E. 789. And see supra, infants. 249. No duty devolves upon the employer to instruct an adult of ordinary intelligence of the danger incident to revolving cogs in plain sight. Wilson v. Massachusetts Cotton Mills, 169 Mass. 67, 47 N. E. 506. See also Richstain v. Washington Mills Co., 157 Mass. 538, 32 N. E. 908; Hazen v. West Superior Lumber Co., 91 Wis. 208, 64 N. W. 857; Stolarz v. Algonquin Co., 77 N. J. L. 147, 71 Atl. 57. Where the plaintiff, who was twenty-four years old, was injured while cleaning the commutator in the defendant's electric car, by contact with unguarded gears, and it appeared he had been instructed in the duties of a motorman for eight days prior to performing active work and was injured the third day after commencing such work, and that his duties were to clean the commutator while the car was in motion when required, and the danger of injury from the gears was obvious to a person of ordinary intelligence, it was held that such danger was a risk inci- dent to the service which he assumed. Burnell v. West Side R. Co., 87 Wis. 387, 58 N. W. 772. The danger of using a machine with unguarded rollers three-fourths of an inch apart, is so obvious that a master need not warn a servant of it. McCarthy v. Mulgrew, 107 Iowa, 76, 77 N. W. 527. The mas- ter was not obliged to warn an experienced employee of the danger of his hand being caught between the roUs of a machine moving in plain sight. Hicks v. Claremont Paper Co., 74 N. H. 154, 65 Atl. 1075. Where warning was said to 746 Master and Sebvant. §310a Set screws. Injuries from set screws have been frequent. Courts have been called upon in numerous cases to determine the question whether, under the particular conditions, there existed a duty of warning and instructing the servant with have been required in such or simi- lar cases with some exceptions, the particular ground was that though the particular part of an appliance which caused the injury was in plain sight, yet there was condi- tions by reason of which the em- ployee did not observe it and it could not be said he was charge- able with knowledge. Thus it was said that the danger of contact with prongs on a sprocket wheel revolv- ing so rapidly that it presented a smooth appearance, was not so obvious to an inexperienced oiler of machinery near by as to dispense with the necessity of warning and instructing him. W. A. Gaines & Co. V. Johnson, 32 Ky. L. Rep. 58, 105 S. W. 381. And a finding of negligence in faihng to warn an inexperienced employee of the dan- ger and instruct him what was be- hind the opening in a machine where he was put to work to remove with a stick a congestion of rags from a three-inch opening in front of a rapidly revolving drum with a spiral line of spikes in it, the em- ployee while in front of the machine not being able to see what was behind it, was held to be proper, on the ground that the risk was not obvious. Joyce v. American Writ- ing Paper Co., 184 Mass. 230, 68 N. E. 213. In an exceptional case it was said, an employee is not bound before beginning work to familiarize himself with the condi- tion of machinery he may come in contact with. It is enough if he knows his own work and the risks directly connected with it. Swa- boda V. Ward, 40 Mich. 420. That such is not the general doctrine is fully demonstrated in other parts of this work where the servant's duty is considered. However, the facts were that an employee in a saw mill, whose duty it was to carry slabs from the gang and place them upon rollers, when puUing one too heavy for him to carry, walking backwards, accidentally slipped upon some bark and fell against exposed cog wheels, result- ing in injury to him. He had not been warned of the danger from them, but it did appear he could have seen them if he stopped work to look. It was held the risk was not assumed by him as matter of law. The injury having been caused by an unusual risk, the bur- den of proving knowledge thereof was upon the employer. Prac- tically the same was held by the Wisconsin court, which seems to have followed the foregoing. There a young man nineteen years of age, was set to work near revolving cogs. They were in plain sight. They were so near that he could not help but see them if he looked, in fact they were of such a character as to necessarily attract his atten- tion. While not familiar with ma- chinery in a mm, he had worked five days when his foot became caught in such uncovered gearing. § 310a Insteucthstg and Wabning Sbevant. 747 respect to such, an attachment. It seems that as to expe- rienced machinists, there is no duty on the part of the mas- ter to instruct or "warn. They have or are presumed to have knowledge that shafts have set screws and are able to discover and understand their location upon the shaft at a glance, and, if not, they know how and where to look for them."" True he said he had not observed them, until his foot was caught. It was held the jury were justified in finding that prior to the injury he did not have sufficient knowledge to comprehend the dangers incident to his employment. Nadau v. White River Lumber Co., 76 Wis. 120, 43 N. W. 1135, 20 Am. St. Rep. 29. 250. Kennedy v. Merrimack Pav. Co., 185 Mass. 442, 70 N. E. 437. As stated by a court, he knows the existence and danger from the revolving shaft, and while the presence of the set screw or key- way enhances the dangerous char- acter of the shaft, though he has no knowledge of its existence, he can only be told there is danger in coming in contact with the shaft. DiUon V. National Coal Tar Co., 181 N. Y. 215, 73 N. E. 978. The supreme court of Michigan in a very recent case, has stated: "While we have held that the use of an uncovered set screw upon an elevated shaft is not negligence under usual conditions, and that an employee must expect the use of set screws to fasten pulleys, etc., upon shafts, we have not held that a dangerous and unnecessary projection of a bolt at a place, where from the nature of the work to be done there was an unusual danger, was not to be considered in determining the nature of the place and the duty of warning an inex- perienced man. Although it had been commonly held that the use of set screws and possibly projecting bolts on shafts was not per se negligent, it does not follow that it could not be negligent to use them without projection where from the proximity to the floor and in places where workman would be subjected to unusual danger.'' The employee who had worked in the miU two years and had operated a machine called the "drum saws" was injured while picking out blocks from under or near such a bolt on a shaft in a basement below the room where he was operating the machine, a service he had per- formed twice before. The ques- tion of the master's duty to warn him was held to be for the jury. MacDonald v. Freeman Mfg. Co., 160 Mich. 380, 125 N. W. 352. It was held it was not negligence to omit to give warning of danger from a set screw attached in the ordinary way upon the shaft, to a servant who was a mechanic of mature years, who had worked upon the premises for some time, and who might have performed his work without danger by adopting a different mode of reaching it. Keats V. National Heeling Machine Co., 13 CCA. 221, 65 Fed. 940. Where an employee who had been engaged as an oiler of 748 Mastee and Sebvant, §310a machinery in a very large saw mill from some time in April untfl the 9th day of July following, on which latter day he was injured from his clothing getting caught in a set screw on a rapidly revolving shaift, and he claimed he had no knowledge of the set screw, it was held whether he should have been informed as to its being there, was a proper question for the jury. It was said an instruction as fol- lows should have been given. "It is the duty of the plaintiff to look at the machinery about which he is employed to work, and to apprise himself of any danger afforded by the machinery itself, or which he could have discovered by a proper examination. thereof, or by the use of his sight or other senses, and if he failed diiring the course of his employment, and while engaged in the task of oiling the machinery, to apprise himself of the dangers which ought to have been seen, then the plaintiff was not in the exercise of ordinary caje or prudence, and it is your duty so to find." Guinardv. Knapp-Stout & Co. Co.,90 Wis. 123, 62 N. W. 625, 48 Am. St. Rep. 901. Where an employee in a saw mill was injured while running a scant- Ung machine and saw, in the attempt to remove a sliver from under the saw, by his sleeve catch- ing in a concealed set screw fixed upon and projecting from a shaft below the saw, it was held that the master was negligent in not in- tructing TiiTn as to the position of such set screw, notwithstanding the fact that he had been employed in the mill for two years, had worked as an assistant upon the machine in putting lumber in place to be out by the saw for nine months, and had during that time, in the absence of the foreman, run the machine for eighteen days. Upon the question of negligence on the part of such employee it was held a question for the jury to de- termine, notwithstanding the fact that he could have stopped the machine, and that if he did not know of the presence of the set screw he must have known that he was putting his hand in a place of concealed danger. It appeared, however, that he had seen his foreman do the same thing. (The decision first rendered in this case in the 25th Pacific Reporter, was directly the reverse upon both propositions. It is not pubhshed in the reports. The one condensed above contains no reference to any former decision, nor does the report of the case show that it was rendered upon a rehearing. Its history must be in the record of the court as well as the reason for such a change of opinion.) Ingerman V. Moore, 90 Cal. 410, 27 Pao. 306, 25 Am. St. Rep. 138. It was held, where an employee worked near a clutch in a miU where his duties required him at times to step over a rapidly revolving shaft upon which were projecting screws, that notwithstanding the shaft was in plain sight, and the dangers there- from obvious, yet whether he should not have been warned of the dan- ger of the projecting screws, was, under the circumstances, a ques- tion for the jury. Roth v. North- ern Pae. Lumbering Co., 18 Oreg. 205, 22 Pao. 842. Whether the employer was liable for the death of a servant who while in the dis- charge of his duty in oUing ma- chinery, not being the regular § 310a Instbucting and Wabning Servant. 749 employee acting in that capacity, was caught by a projecting set screw on a revolving shaft, the latter being ignorant of its exist- ence, not having been instructed, the place being dimly lighted, was held a question for the jury. It was assumed that the injured employee was inexperienced. Barr V. Guelph Patent Cask Co., 129 Mich. 278, 88 N. W. 640. It was held that it was the duty of the master to warn an inexperienced servant of projecting set screws on a shaft where requiring him to ad- just the belt, and instruct him as to the proper method of adjusting the belt. Mountain Copper Co. v. Pierce, 69 C. C. A. 148, 136 Fed. 150. 750 Mastbb and Sebvant. §311 CHAPTER V. METHODS. Seo. 311. Preliiuinary statement. 312. System. Master not required to adopt any partioulaj* method. 313. Supervision. 314. Danger not anticipated from method used. 315. Customary methods. 316. Electrical appliances. 317. Explosives. Method of exploding blast. Placing cans of powder near charged wires. 318. Operating factories. 319. Operating mines. 320. Operation of railroads. Lookout, when required. Whether duty personal to master. Making up trains. Movement of trains. Seo. Absence of head light. Car off the track. Failure to block and brake car on side track. Signals of warning. Starting engine without receiving signal. Switching cars on main track in night time with- out light. Flying switches. Flagging system. Speed. Suddenly starting car. Suddenly stopping ear. Use of defective engine. Train without a conductor. Loading cars. Hand cars; method of oper- ating. 321. Direction of foreman or su- perior. § 311. Preliminary statement. The master's duty in respect to adopting a method of conducting his business, where of a dangerous and com- plex character, is considered under the chapter relating to rules. It cannot be expected, however, that definite rules shall be promulgated regulating every detail of such work, much less where the work is not of such a character that it is necessary that prescribed rules shall be formu- lated and established. The enactment of so called Employer's Liabihty Acts, restricting the application of the feUow-servant rule, presents new questions affecting the liability of the master where such acts are in force, § 312 Methods. 751 particularly the method adopted by employees in per- forming their duties. The question thus presented is not of the personal negligence of the master, but that of the servant, for ■which the master is thus made responsible, and as such method varies with each particular act, it has to be considered where others than the offending servant are injiired by such negligent method, independently of rules and regulations prescribed by the master. In some cases the method adopted by the servant may be negligence as matter of law, but more frequently it is a question for the jury. Employer's Liability Acts have not been adopted in aU the states, and where not adopted the common law is in force. Where adopted, they relate generally only to rail- roads. However, in Massachusetts, Alabama and some other states, they embrace and include all employments. Prior to such enactments the question generally involved and considered with respect to the method pursued by a servant, whereby a co-employee was injured, was whether or not as to the performance or non-performance of the particular act, he represented the master as to a personal duty of the latter or was a fellow-servant for whose negligence the injiu-ed employee assumed the risk, and hence the method pursued in performing the act was not of material importance. Hence in considering this sub- ject, care must be taken to properly distinguish whether the alleged negligence is controlled by statute or is within the common law. It is impracticable to state to any great extent, what particular methods adopted by serv- ants have been declared to have been negligent. They are, to some extent, included in particular subjects else- where treated. We can only consider some of the more important questions involving the master's duty, with respect to the adoption of either a general or particular method. § 312. System. It has quite often been stated that the master's duty requires the adoption of a system of conducting his busi- ness, which is trae to a certain extent, as, for instance, 752 Master and Sebvahtt. § 312 where the nature of the business is such as to require it, the establishment of rules for the conduct of the business and protection of his employees. But otherwise such statements have but Uttle force, as it is doubtful if in any case the master has been held negligent in not adopting a proper system. Where such declarations of the courts have been made, it has been where the particular act or defect was attributable to the neghgence of the master, as something he should have done or omitted, either by failure to prescribe a rule or direction or otherwise. Thus, where an employee while riding on one of an electric rail- way's cars, returning from his work, was injured by reason of the car becoming derailed caused by a misplaced switch, and it did not appear by whom the switch was misplaced, whether by an employee or a stranger, and it was claimed the company was neghgent in not having a target or hght or in not keeping the switch locked, the accident was held to have been the result of a want of proper system in operating the road.^ Such conclusion was nothing more than a determination that the company was neghgent in not providing by rule or regulation for the doing of the acts which it was claimed to have been neghgent to omit. It was well stated in the dissenting opinion: "Courts and juries cannot prescribe methods; they can only apply the legal tests to those in operation, and that is the test of experience and custom." Numerous cases are cited to the effect that a railroad com- pany need not anticipate a crime, nor a trespass, unless there is something in the circumstances surrounding the transaction which should have directed the attention of its officers to the probabihty of such a danger. It has also been stated, by another court, that the personal duty of the master extends to and embraces the adoption or use of a system by which the business of the master is performed or conducted. ^ However, such statement was made in reference to certain rules and regidations that should have been 1. Noe V. Rapid Railway Co., 2. Belleville Stone Co. v. Moon- 133 Mich. 152, 94 N. W. 743. ey, 60 N. J. L. 323, 38 Atl. 835. ^ 312 Methods. 753 adopted in respect to the work in a quarry. It was not the failure to adopt a particular system, but rather to provide for the safety of employees. Master not required to adopt any particular method. It has been well said that an employer is not required to adopt one method rather than another in conducting his business, and courts and juries cannot dictate a choice between methods aU of which are reasonably adequate.' As stated by another: "Juries must necessarily de- termine the responsibility of hviman conduct, but they cannot be allowed to set up a standard which shaU in effect dictate or control the business of the community."^ As stated, the imderlying principle with respect to the master's duty in respect to appliances, and premises, is that of the exercise of ordinary care, and the same principle applies, in respect to the methods pursued in the conduct of his business. As stated on a previous occasion: "We know no rule by which to measure human conduct by that standard other than by comparing a party's conduct with the conduct of the ordinarily prudent man under similar circumstances. It will not do for a jury to say that all such men are habitually careless, much less, a covirt, from their unpractical view alone, to say what machinery or improvements (or method) practical men shall employ in their business. The absurdity becomes apparent upon mere suggestion. If the party, according to his peculiar notion, should adopt a device not in common use, and injury should flow therefrom, he would be em- barrassed in defending upon the ground that he acted thus in the exercise of ordinary care. In order to present such a defense, he must ordinarily satisfy a jury that his device is reasonably safe as matter of fact, not that he exercised ordinary care in adopting its use." In so doing the plaintiff might present authorities where it is 3. Stone V. Union Pac. R. Co., 4. Titus v. Railway Co., 136 Pa. 35 Utah, 305, 100 Pac. 362; Nor- St. 618, 20 Atl. 517, 20 Am. St. Rep. folk & W. R. Co. V. Cromer's 944. Admr., 101 Va. 667, 44 S. E. 898. 1 M. & S.— 48 754 Master and Seevant. § 312 said : ' 'A man in any situation or business is always bound to conform to the rules and usages which prudent and careful men have established in the conduct of similar business under similar circumstances; and it is neghgence to make any important departure from such coiu-se when it proves more injurious to others than the usual course. The rule by which he is to govern his own is that which is established by the concurrent use of careful and prudent men in that particular business."^ And by the Michigan court: "Every one has a right to expect that railroads will be managed according to the common custom; and railroad companies have a right in their turn to expect conformity to this."* And by the same court: "If they (railroad companies) exercise their functions in the same way with prudent railway companies, generally, and furnish their road and run it in the customary manner, which is generally found to be safe and prudent, they do all that is incumbent upon them."^ It was held error to permit a witness to testify as to the manner of loading car wheels upon a car adopted by another company. A competent witness, however, might testify as to the general practice.* 5. Vinton V. Sohwab, 32 Vt. 612. knows or can discover by the 6. Michigan Cent. R. Co. v. exercise of ordinary attention. Hav- Coleman, 28 Mich. 440. Ing observed such degree of care as 7. Grand Rapids, etc., R. Co. ordinarily prudent men engaged in V. Huntley, 38 Mich. 537, 31 Am. the same business observe, the law Rep. 321. is satisfied and no liability arises 8. Southern R. Co. v. Mauzy, from accidents which may then 98 Va. 692, 37 S. E. 285. It is happen, although they might have familiar law and oft repeated, that been prevented by the exercise of a the employer may carry on his greater degree of care. No person business in such manner and in such is required to exercise a greater places as he pleases, and with such degree of caution and provision machinery and appliances as he than is exercised by the mass of may choose, provided only that he mankind. Guinard v. Knapp- does not violate the positive law of Stout & Co. Company, 95 Wis. the land nor expose his employees 482, 70 N. W. 671; Hayden v. to unknown dangers. The em- SmithviUe Mfg. Co., 29 Conn. 548. ployee is deemed to accept these The inference from the use of such with the risk of such dangers as he emphatic language by the ooort §313 Methods. 755 § 313. Supervision. It has been frequently said that it is a duty personal to the master "to use reasonable care to direct and super- vise the performance of the work in a reasonably safe and prudent manner." Such duty is required in Minnesota naturally would be that the doctrine of customary methods was strongly intrenched in Wisconsin, and especially as the court had on other oc- caeions reiterated even the lan- guage stated. We find, however, in a more recent case, that such doc- trine was not adhered to, but a doctrine asserted, that it is the province of a jury to determine whether a particular method adopted was not reasonably safe, although such method was some- times adopted by others, though contrary to the general custom. Thus it was stated by the court: "When the facts are made known to a jury, and especially when it is proved that there is a feasible safer method, frequently or sometimes adopted by others for performing the same work, a situation is pre- sented for the exercise of judgment as to whether the method pursued was reasonably safe. True this may be supplemented by proof of a general custom to exercise greater precautions or adopt greater safe- guards, but such proof is by no means necessary to the establish- ment that the mode adopted by de- fendant was unreasonably perilous, or in other words, not reasonably safe." Hamann v. Milwaukee Bridge Co., 136 Wis. 39, 116 N. W. 854. The contention was that the method adopted was the cus- tomary method. What logically follows from such departure from the general rule of law? We say rule of law because it is almost universally recognized and declared as such, and by this same court in Guinard v. Knapp-Stout & Co. Company, supra. In addition to what was stated by the court in that case quoted, it was declared: "The standard by which the liability of the defendant is to be tested is the standard which the law has provided. The jury may not be allowed to make a new one, to suit their inclination in the particulaj case." Answering the question we have propounded, the master must not only acquaint himself with the method which is customarily adopt- ed, but also as to the different meth- ods adopted by some others, in performing the same work, and then decide upon which method he shall adopt. This, by all authority, is the exercise of judgment and in no sense negligence. More than this, the methods adopted by others, may not be uniform, and he is thus compelled, if he ignores the cus- tomary method, to choose from such other methods, and if he makes a mistake in his judgment, he is guilty of negligence. One jury may- determine he was thus not negligent, While another, under precisely the same conditions, may determine that he was negligent in adopting sudh method or in ignoring the customary methods and thus we have the master, to use a homely expression, in the 756 Masteb and Servant. § 313 by statute, though it was stated by its court that the statute is merely declaratory of the common law.' Courts, however, have failed to declare how or ia what maimer this duty is to be exercised, in other words, the nature and extent of this duty. There is a duty imposed upon the master to supervise, so to speak, the appUances furnished for his servant's use. Also the premises to the end that defects may be discovered and remedied. This is met by the making, or the providing of means for, inspec- tion. It may be said it is a duty personal to the master to so supervise his work and the servants, in the perform- ance of it, as to keep informed as to whether such duties are being properly performed. This is but the resxilt of the statement that the master's duty is that of the exercise of ordinary care, and that the master will be chargeable with knowledge of that which by the exercise of ordinary care he would have learned, as for instance, the habitual neglect of a servant to properly perform his duty, habitual dis- regard of rules by the servant, the latter's habit of intoxi- cation, and the like. To this extent and this alone, does the doctrine of supervision apply. It has been said the rule requiring the master to exer- cise a general supervision over the work of his servants, does not require their protection from the neghgence and carelessness of fellow-servants, nor extend to dangers air. The question involved was the service, then the master is not lia- method of unloading a machine ble for any injury within his duty from a, ear. A rule with respect to of furnishing a safe place of work, the method adopted by an em- Sohmitt v. Seefeld, 139 Wis. 459, ployee was subsequently declared 121 N. W. 136, applied where an by the same court: "That where employee adopted an unsafe way a servant in performing a service in removing saw dust from a wholly deviates from the cus- bolter. tomary and reasonable method of 9. Hess v. Adamant Mfg. Co., performing it, and adopts a course 66 Minn. 79, 68 N. W. 774; Lund- wholly outside of what is reasonably berg v. ShevUn-Carpenter Co., to be expected, thereby exposing 68 Minn. 135, 70 N. W. 1078; himself to hazards and danger not Soutar v. Minn. International Eleo. incident to the reasonable and cus- Co., 68 Minn. 18, 70 N. W. 796. tomary way of performing the § 314 Methods. 757 and risks that are apparent or might be discovered by the exercise of reasonable care and prudence." It is assumed that this declaration has reference to supervision other than the promulgation of proper rules. § 314. Danger not anticipated from method used. The same rule apphes to the master's methods as to his appliances or premises, and that is that hability cannot be predicated upon the method adopted imless the master, or those who represent him, shoidd reasonably have anticipated that injury might result from such method." It would be very unsafe for a court to permit a jury to fix an arbitrary standard of duty in any given case. The causes of accident are best seen, and the danger to be apprehended therefrom best appreciated, after the accident has occurred. The accident itself not only reveals the cause, but more forcibly than aught else, suggests what might have been done to have avoided it. But for the accident, there might have been nothing ordinarily to suggest danger, even to the prudent. Whether injury might flow from such cause, naturally and proximately, and that the master might reasonably have anticipated such a result, depends upon the particular facts and circumstances of the particular case, and is ordinarily a question for the jury. This is illustrated where a car upon a siding was driven upon the main track by a storm of extraordinary violence. It was held that such condition could not reasonably have been anticipated, it not being suggested but what ordinary methods of securing the car upon the side track were not adequate imder ordinary conditions. ^^ It has been said, however: "Where service in handling heavy timbers is being performed in the open, in the win- te: season, the fact that the timbers so exposed may natur- 10. Dixon V. Union Iron Works, 12. Jones v. Kansas City, Ft. S. 90 Minn. 492, 97 N. W. 375. & M. R. Co., 178 Mo. 528, 77 S. 11. Nordstrom v. Spokane & W. 890, 101 Am. St. Rep. 434. Inland Empire R. Co., 55 Wash. 521, 104 Pac. 809, 26 L. R. A. (N. S.) 364. 758 Masteb and Seevant. § 315 ally be covered with ice and snow, and when handled sUp and injure the servant, should, by the exercise of ordinary care, be reasonably anticipated by the master or the foreman in charge of the work.^' It is not even suggested, such being the effect of natural laws, that the servant should equally with the master have anticipated such conditions. It seems to have been held the duty of the master to prescribe its method, instruct servants therein and see to the enforcement thereof, of taking cars from a basement of its mill and up an incline, and when one car was drawn to a point near the level, to block it, and when another car has been similarly hauled to that point to ohaiQ the two together and draw them hence in order to equalize the up hill haul. In this case two cars escaped, ran back to the basement and killed one of the employees at work there. In view of the evidence showing the recent employment of a young teamster from which the cars escaped, and as to the method of blocking the cars and the system naturally in vogue, the jury's find- ing of negligence on the part of the master was justified. ^^ It was held that an operator of a mine was in duty bound to exercise ordinary care in regulating the time and manner in which the miners should fire their blasts.^* This would seem to be a precaution reasonably neces- sary for the protection of those engaged at work in the mine, and well might the master be required to so pre- scribe by rule. § 315. Customary methods. That the duty of the master being that of ordinary care is met when he conducts his business in the usual and cus- tomary manner of ordinarily prudent men, engaged in the same business, under similar circumstances, has, in pre- ceding pages, been stated as the law. This question is 13. Harsen v. Northern. Pae. 15. Edwards, Admr., v. Lam, R. Co., 139 Wis. 186, 120 N. W. 132 Ky. 32, 116 S. W. 283, 119 S. 826. W. 175, 131 S. W. 795. 14. Johnson v. C. A. Smith Lbr. Co., 99 Minn. 343, 109 N. W. 810. §315 Methods. 759 discussed to some extent, and cases cited, under "System," in this chapter. It may be said also, that where the master's method of work is unusual, liability cannot be predicated upon that fact unless such method n itseK is more dangerous than the ordinary method." The question of assiimption of the risk of the method employed is considered in the chapter on assumed risk, and that of custom and customary method in general in the chapter on evidence. Some examples sufficient to illustrate the rule are considered in this connection in the note below." 16. Cunningliaiii v. Ft. Pitt Bridge Works, 197 Pa. St. 625, 47 Atl. 846. 17. Acids, use op. It ■was held that an employer not being chargeable with knowledge that the use of acids in the particular business (laundries) would have the effect to emit poisonous fumes, which would injure the eye sight of his employee, it not being shown that it was not customary to use acids in laundries in the manner and proportion used, cannot be charged with negligence. Cor- coran V. Wanamaker, 185 Pa. St. 496, 39 Atl. 1108. Cleaning out combustion CHAMBBK OP ENGINE. Plaintiff, while engaged in cleaning out the combustion chamber of a stationary engine by sprinkling the hot ashes with water through a hose supphed for that purpose, and then by shoveling the ashes out of an open- ing in the chamber, was burned by an explosion of steam or gas. The method he pursued was customary and he had been employed at this precise space for twenty years. It was held no negligence was shown on the part of the defendant. Ej-emkoski v. Great Northern R. Co., 101 Minn. 501, 112 N. W. 1025. Furnishing employee food and SHELTER. In the absence of a con- tract or estabhshed custom, it is not the duty of a railroad company to furnish employees on its road with food, shelter or transportation between their homes and places of work. An employee suffered from exposure to the cold and exhaustion and sought to hold the company liable upon the ground of failure to furnish ^lim food, shelter, etc. King V. Interstate Consol. R. Co., 23 R. I. 583, 51 Atl. 301, 70 L. A. 924. The court held the complaint of another employee of the same gang not demurrable where it contained an allegation that he was ordered to enter and permitted to remain in one of defendant's cars all night, since the jury might find that the defendant assumed the duty of taking reasonable care of the plain- tiff and of seasonably conveying him to some place where he could be taken care of. Loading bails on cars when MOVING. It appearing from the 760 Master and Seevant. § 316 § 316. Electrical appliances. The master's duty in respect to the method used in operating electrical appliances, is that of the exercise of great care, not a higher degree of care; but in the handling or use of dangerous agencies, arising from the fact of the dan- ger incident thereto great caution should be exercised to avoid such danger. It is but the exercise of ordinary care. The assumption of risk from the use of such appUances •will be treated in the chapter on assumed risk. We only add here a few statements made by the courts in regard to the duty of the master. Thus it is said that the duty of electrical companies to their employees in case of electric wires, carrying a dangerous current, requires a high degree of care in properly insulating the wires as well as their suspension to prevent contact with other wires. ^* If a master is chargeable with notice that the method employed for carrying off an electric current was not adequate, it is negUgence for him. to continue such method without warning his employees." And one using machinery operated by electricity is reasonably boimd to protect his servants from injuiies caused by the unusual influx of electricity to the premises and the machinery by reason of the wire supplying the current coming into contact with wires more heavily charged. "" The law requires of those who use dangerous agencies in the prosecution of their business, to observe the greatest testimony that the general method case the question becomes in- of loading rails on cars which have volved whether the fault was that of been taken up on a track, and a fellow-servant. La Barre v. replaced by new rails, is to have Grand Trunk Western Ry. Co., them loaded by gangs of men 133 Mich. 192, 94 N. W. 735. taken from section gangs, while 18. Texarkana Tel. Co. v. Pem- the cars are moving, it was held berton, 86 Ark. 329, 111 S. W. 257. that such method was not negligent. 19. Mehan v. Lowell Eleo. However, there might becircum- Light Corp., 192 Mass. 53, 78 N. E. stances attending the act, such 385. as the speed of the train, haste, 20. Moran v. Corliss Steam etc., which might render the par- Engine Co., 21 R. I. 386, 43 Atl. tioular act negligent, but in such 874, 45 L. R. A. 267. § 317 Methods. 761 care in the custody and use of them. This duty cannot be shifted by the master from himself to his servants so as to exonerate him from the negUgence of the servant in the use and custody of them. Where they are so intrusted, the proper custody as well as the use of them becomes a part of the servant's employment by the master and his negligence in either regard is imputable to the master in an action by one injured thereby. ^^ § 317. Explosives. The measure of duty imposed upon the master for the safety of his servant, in the use of dynamite, is that ordinary care which reasonable and prudent men would and dx) exercise under hke circumstances.^^ In view of the danger incident to its use, ordinary care may require great care and caution. It requires that the master or some one representing him, shall supervise and superintend its use, provide reasonably safe methods for heating it, and warn inexperienced employees of its dangerous character, and the manner in which to handle it with safety." It was stated that the master's duty in the use of dyna- mite requires him to furnish an experienced man to take charge of the same, but he is not boimd to supervise every detail of the work, as to which such person has been placed in charge; and if, imder such circumstances, a mistake in judgment ocexu*s, the master will not be Hable." Method of exploding blasts. An employee in a rock excavation while operating a steam shovel was injured by 1/he explosion of a blast, 21. Rush V. Spokane Falls & 22. Schwartz v. ShuU, 45 W. Va- N. Ry. Co., 23 Wash. 501, 63 Pac. 405, 31 S. E. 914. 500. See also Railway Co. v. 23. Pinney v. King, 98 Minn. Shields, 47 Ohio St. 387, 24 N. B. 160, 107 N. W. 1127. 658, 8 L. R. A. 464, 21 Am. St. 24. McHugh v. Jones «fe Laugh- Rep. 840; Powers v. Harlow, 53 lin Steel Co., 219 Pa. St. 644, 69 Mich. 507, 19 N. W. 257, 51 Am. Atl. 90. Rep. 154. 762 Masteb and Sebvant. § 318 evidently one remaining unexploded while others of the group were exploded on a previous occasion. The fact of its not having been exploded does not appear to have been known. The action was predicated upon the failure of duty on the part of the master to furnish him a safe place to work. The negUgence seems to be founded upon the ground that there were other and safer methods that might have been employed, though not as efficacious and speedy and more expensive, by which an inspection would determine with greater certainty whether or not the dynamite in any one hole remained unexploded, and this was held a question for the jury. The method suggested was that instead of exploding the whole group at one time, that it be limited to a single row of holes. Much stress is laid upon the dangerous character of dynamite requiring great precaution in its use.^* Placing cans of powder near charged wires. The placing, by a mine operator, of cans of powder near electric wires, was said not to be negligence provided the wires were properly erected and insulated, nor was it negligence to place cans of powder for distribution in the entry of a mine. ^° §318. Operating factories. No general rule as to the method a master shall pursue in the manner of operating his factory or mill can be prescribed other than that which governs all transactions and relations with employees, the exercise of ordinary care; what may or may not be such care depends largely upon the character of the work and the appliances used, and varies in almost every instance. The cases are not niimerous where the ground of liability has been placed upon the ground of improper or unsafe method. There are cases where the master's UabiUty has been placed upon the ground of the improper method of the use of certain 25. Stephen v. Duffy, 237 111. v. Garner, 87 Ark. 190, 112 S. W. 649, 86 N. E. 1082. 392, 22 L. R. A. (N. S.) 1183. 26. Western Coal & Mining Co. §§ 319, 320 Methods. 763 appliances therein, but quite generally the question is determined by the rule of fellow-servant, as where a foreman causes the running of machinery in a mill at a great and unusual speed, thus causing a wheel to burst, it was held that the foreman was guilty of negligence chargeable to the master.*^ Where a Siawyer kept a saw running in a mill when not in use at the particular moment and while he was waiting for lumber, it was held that such method was not negligence. ^^ § 319. Operating mines. The question of the master's duty in respect to the method of operating mines has been somewhat considered in the chapter on premises. In some particulars, the method is prescribed by statute; in some of the states a particular duty in a great emergency not before stated, was said to be, where there was a fire in a mine, for the operator of the mine to telegraph to a distant city and have a special train to obtain appliances with which to extinguish the fire, if such was the only means of saving the lives of employees in the mine. It was held whether the superin- tendent was guilty of negligence in seaUng up the air shaft and thus suffocating employees, was a question for the jury. 29 § 320. Operation of railroads. If the standard of duty so often and so forcibly stated, to wit, that the master's duty in this respect is that which is adopted by prudently managed raUroads generally, was applied by courts, then much of confusion and in- consistency would be avoided. Com'ts will persist in setting up, or permit juries to set up and fix, a standard of their own in particular instances and it seems idle to 27. Steoher Cooperage Works 29. Bessemer Land & Imp. V. Steadman, 78 Ark. 381, 94 S. W. Co. v. Campbell, 121 Ala. 50, 25 41. So. 793, 77 Am. St. Rep. 17. 28. Witten v. Bell & Coggeshall Co., 27 Ky. L. Rep. 580, 85 S. W. 1094. 764 Masteb and Servant. § 320 protest against it. Hence it may be said that, with, few exceptions, there is not a standard by which the measure of the master's duty in this respect is actually determined. The most that can be done is to state what the courts have held the duty of a railroad company to have been in particular instances. Thus, the movement of trains by telegraphic orders is held to be an approved method of operating a raOroad.'" It was held, however, that it is negligence for a railroad company to direct trains to meet at a siding, without a telegraph station or signal house by which such siding could be recognized in the night. A collision occurred between the trains, there being no headlight on the train with which the train on which the injured servant was colhded." Lookout when required. In some of the states statutes have been enacted requir- ing that lookouts in certain instances be placed on trains or cars. The Arkansas statute (Kirby's Dig., sec. 6773) making railroads hable for injuries to persons or property by the running of trains, etc., requires employees operating trains in yards to keep a lookout for other employees. '^ Under the Massachusett's statute requiring a trusty brakeman on the rear ear of every freight train, it was held that a corporation was not negligent where the train which injured plaintiff was a work train used to distribute ties and sand for the repair of the track, and where the crew were putting the work cars on a storage track, pre- paratory to coupling into a freight train. Such train was not a freight train within the statute.^' Quite generally, however, in the absence of a statute requiring it, it has been held a duty on the part of the 30. Northern Pac. R. Co. v. 32. St. Louis, I. M. & S. R. Co. Dixon, 71 C. C. A. 555, 139 Fed. v. Puckett, 88 Ark. 204, 114 S. W. 737. 224. 31. Mexican Cent. R. Co. v. 33. Bacon v. New York, N. H. Glover, 46 C. C. A. 334, 107 Fed. & H. R. Co., 194 Mass. 489, 80 N. 356. E. 458. § 320 Methods. 765 master to provide a lookout on trains or cars moving iu a " yard and upon trains moving elsewhere. Thus it has been held to be the duty of employees operating trains to keep a lookout for trackmen, and for their benefit give crossing signals, and when discovered give them danger signals.'* It is the duty of a railroad company to have a lookout on the rear of a train being backed in a town, where another train is taking water on an adjoining track.'' And to post a flagman on the leading car when a train is being pushed in front of the engine. " And also when backing an engine at a junction where a large number of men are employed to keep a lookout for a car repairer passing along the track to a tool house after having inspected a train. " And if the place is one where persons might reasonably be expected to be on the track to give warning of the approach, of the train and to keep a reasonable lookout." It has been held, however, that trainmen operating a train are not required to be on the lookout for employees riding on the track on a tricycle even though with the consent of their foreman. '' Whether duty personal to master. It has been held that neghgence in moving cars through a railroad yard, without signal or lookout at the forward end thereof, is the neghgence of the company, if it has pre- scribed no rules requiring such precautions, or it may be 34. Hoffard v. lUinois Cent. 37. Louisville & N. R. Co. v. R. Co., 138 Iowa, 643, 110 N. W. Lowe, 118 Ky. 260, 80 S. W. 768, 446, 16 L. R. A. (N. S.) 797. Such 65 L. R. A. 122, 25 Ky. L. Rep. rule is not of general appUoation. 2317. See chapter on instruction and 38. Cincinnati N. O. & T. P. warning. R. Co. v. Hill's Admr., 28 Ky. 35. Louisville & N. R. Co. v. L. Rep. 530, 89 S. W. 523. Schroader, 113 S. W. (Ky.) 874. 39. Jacobs' Admr. v. Chesa- 36. Rinard v. Omaha, K. C.& peake & O. R. Co., 24 Ky. L. Rep. E. R. Co., 164 Mo. 270, 64 S. W. 1879, 72 S. W. 308. 124. 766 Masteb and Sebvajstt. § 320 that of fellow-servants if they fail to comply with sufficient and adequate rules. ^^ In Minnesota, a railroad company is liable, under its statute, for an injury caused to one brakeman by the negligence of a fellow-brakeman on the same train. Where a train had broken apart and injury to one brakeman was the result of the two parts coming together, it seems to have been held that the failure to keep a proper lookout by another brakeman, where such was required, would be the negligence of a fellow-servant for which the company would be liable, and the question for the jury therefore was whether the brakeman exercised reasonable care, in watching the rear of the train and in keeping a proper lookout in that direction for signals from the conductor.''^ Making up trains. The method of making up trains ordinarily relates to the operation of the road and hence is a duty that may be delegated to employees who as to such act are fellow-servants of employees on the train. In those states where the fellow-servant rule has been abrogated by statute, neghgenee in such respect is chargeable to the master. In Minnesota, by force of its statute, such neghgenee of employees in making up a train, in the man- ner in which the cars were connected, was chargeable to the company.** In Kentucky it was held that the placing of freight cars in a train of such height that a brakeman could not safely stand upon it, while passing imder a bridge, though he knew of the position of the structure and volimtarily went upon such car, without any necessity for doing so, was neghgenee authorizing a recovery against the company, 40. Sparks v. Wisconsin Cent. 41. Wood v. Chicago, St. P., M. R. Co., 139 Wis. 108, 120 N. W. & O. R. Co., 66 Minn. 49, 68 N. W. 858. It was held that under the 462. statute it is immaterial whether the 42. Allen v. Wisconsin Cent. R. negligence was that of the company Co., 107 Minn. 5, 119 N. W. 423. or that of fellow-servaats. Sparks V. Wisconsin Cent. R. Co., 139 Wis. 108, 120 N. W. 858. § 320 Methods. 767 for iajuries by him sustained by contact with such bridge.*' Movement of trains. The method of the movement of trains, locomotives or cars, pertain to the operation of the road the same as the method of making up traias. The question therefore most frequently involved is whether negUgence ia this respect is that of the master or of a fellow-servant. It is therefore necessary, in applying the determination in any given case, to determine what the rule is as to fellow- servants in the particular court where the determination was made. Absence of headlight. It seems to have been held in Illinois, that it was a question for the jury whether it was negUgence as to a track walker on a velocipede for a railroad company to run a train ahead of time at night especially without a head light."* In that state the doctrine of fellow-servant is that of consociation; and most frequently the question of fellow- seirvant is for the jury to determine. What the ruling would be elsewhere if it appeared that the company had furnished a proper headlight, and the neghgence was that of the engineer in failing to properly use it, cannot be definitely determined. Upon principle, under the rule prevailing in most of the states, the company would not be Uable, as such negUgence would be that of a feUow- servant. Car off the track. The Illinois court also held that the evidence in the particular case was sufB.cient to sustain a finding that an assistant yard master was negUgent in not ascertaining that one of the cars was off the track when he ordered the 43. Southern R. Co. v.Duvall, 44. Baltimore O. & S. W. R.' 21 Ky. L. Rep. 1153, 54 S. W. 741; Co. v. Alsop, 176 lU. 471, 52 N. E. same casa, 22 Ky. L. Rep. 56, 56 S. 253, 732. W. 988. 768 Mastee and Sebvant. § 320 train to move. A member of the switching orew was killed.. Evidently it was held he was a vice principal under their rule.*^ Failure to block and brake car on side track. Where an employee is injured by the car or traia upon which he is at work colliding with a car which by some means has passed out of a side track and on to the main track, the question proper is, whether it is to be considered as an obstruction rendering the place of work unsafe or a failure of duty on the part of a servant ia connection with the operation of the appliances furnished by the master. If the former, under familiar rules the master may be liable if chargeable with knowledge thereof. If the latter, then the act is that of a fellow-servant. The Texas court seem to hold that any neglect of an employee in blocking or breaking a car on the side track is chargeable to the company. In the particular case it did not appear what was the cause of the car passing on to the main track, nor was there any evidence as to the braking of the car, whether insecurely braked or not at all. It was said: "If the car was negligently allowed to remain without suffi- cient breaking or blocking, though some imknown person contributed to the accident by unbreaking the car, the company would be liable." ^' Signals of warning. The important question is whether it is the duty on the part of a railroad company to provide for the giving of signals of warning when cars are moving or about to be moved in a railroad yard. We have considered the ques- tion as to its duty in respect to maintaining a lookout. The purpose of giving signals and maintaining a lookout is the same, that is to give timely warning to those that are exposed to danger from the movement of the cars to seek a place of safety, and the reasons for the one ought to be 45. Chicago & E. I. R. Co. v. 68 S. W. 622. See also Stevenson Drisooll, 207 111. 9, 69 N. E. 620. v. Chicago & A. R. Co., 18 Fed. 493, 46. Galveston H. & S. A. R. Co. 6 McCrary 634. V. Johnson, 24 Tex. Civ. App. 180, § 320 Methods. 769 equally applicable to the other. We have also in another chapter, considered the question of the master's duty in respect to giving signals of warning to employees of the approach of trains, and also to provide for wamiag to be given car repairers when at their work upon the tracks. " If it is the duty of a railroad company to give signals of warning of the movement of trains in a yard, such duty would require that proper rules be promulgated in respect thereto, as there is perhaps no other practical method, and the question then wiU be governed by the principles relating to such duty on the part of both master and servant. If proper rules have not been established, then the master's negligence may be assiuned. If pro- vided, then the further question is involved of obedience to or disobedience of such rules, which also involves the question of fellow-servant. In many eases, the courts have not considered the question with reference to the question of establishing rules, but have simply considered it as one iavolving the question of whether the servant whose duty it was, either imder rules or otherwise, to give the signals, failed to do so, or improperly performed this duty. The courts are not agreed upon the question of the duty of a railroad company to provide for the giving of warning signals of the movement of trains in a railroad yard, where there are many tracks, and engines constantly moving. Some courts hold that such is a positive duty, *^ while some other courts hold the contrary, for the reason that the blowing of the whistle or ringing of the bell from numer- ous engines, tends rather to confuse than to warn. *' Where a train was backed into a side track rapidly and without warning injuring a member of a bridge crew who was loading timber on a car, it was held that iie act 47. Sae chapter on iastruoting R. Co. v. Otis, Admr., 25 Ky. L and waroing. Rep. 1686, 78 S. W. 480; Freemao 48. UoioQ Pae. R. Co. V. Elliott, v. Illiaois Ceat. R. Co., 107 Tenn. 54 Neb. 299, 74 N. W. 627; Illiaois 340, 64 S. W. 1. Cent. R. Co. v. Joaes's Admr., 49. Ryaa v. Nortiem Pao. R. 118 Ky. 158, 80 S.W.484; Southern Co., 53 Wash. 279, 101 Pac 8S0. 1 M. & S.— 49 770 Masteb and Seevant. § 320 was negligence, and that such negligence was imputable to the master on the ground that the conductor and engineer were not fellow-servants of the employee injured/" Starting engine without receiving signal. In moving engines it is quite generally the custom at least, if not provided by rule, that the engineer shall first receive a signal to move. In such cases it would evidently be negligence on the part of an engineer to start his engine prior to receiving such signal. Employees whose duties are to operate switches, customarily give such signals, after adjusting the switch, and then signal those in charge of the engine to start it. Where an engine was thus moved prior to receiving the signal which the switchman intended to give only after he mounted the pilot, and in the attempt to mount the pUot, in order to save himself from inxmediate peril from the moving engine, he was injured, it was held all questions of negUgence and contributory negUgence upon contradictory evidence was for the jury." Switching cars on main track in night time without light. It was held negUgence on the part of a railroad company to switch cars on the main track in its yards in the night time, with no hghts or other precautions to warn approach- ing trains. ^^ Evidently the employer so engaged who directed the act, was, in the particular state, representing the master as to its personal duty. Flying switches. "With respect to the making of flying switches, the method is qmte generally prescribed by rules, and the decisions in respect thereto wiU be foimd xmder that 50. Freemaa v. Illinois Cent. R. Co., 172 Mo. 177, 72 S. W. 559. R. Co., 107 Tenn. 340, 64 S. W. 1. 52. McGraw v. Texas & Pao. 51. Gray v. Northern Pac. R. R. Co., 50 La. Ann. 466, 23 So. Co., 139 Wis. 419, 121 N. W. 142. 461, 69 Am. St. Rep. 450. See also Black v. Missouri Pac. § 320 Methods. 771 head. It has been held that the making of flying switches LQ the day time, ia the usual way, is not neghgenee.^' The cases are few in number iavolving the question of neghgence in the method of making Ajriag switches, as to railroad employees, but numerous in respect to such method as to travelers and others. It is generally char- acterized as a most dangerous practice, and that courts should raise a high standard of cao-e and precaution. Flagging system. It was held to have been the duty of an electric road company to adopt a flagging system that was reasonably safe. That it was not required to adopt any particular sys- tem. That a system of verbal orders was not reasonably safe. 5* Speed. As to the effect of running a train ia excess of the speed limited by a statute or an ordinance of the city, as to employees, the courts seem to differ. Thus by some courts it is held neghgence per se," or at least evidence of neghgence. ^^ Others hold that a speed ordinance is passed for the protection of those of the pubhc who are crossing the streets, and its violation is not of itself an act of neghgence which gives an employee a cause of action." 53. Hunt V. Hurd, 39 C. C. A. 439, 18 S. W. 1103, 32 Am. St. 226, 98 Fed. 683. Rep. 615. Compare Farquhar v. 64. Sipes V. Puget Sound Elec. Alabama & V. Ry. Co., 78 Miss. Ry. Co., 54 "Wash. 47, 102 Pac. 193, 28 So. 850. 1057. 56. Smith v. Atlaata & C. Air 55. Cleveland C. C. & St. L. R. Line R. Co., 132 N. C. 819, 44 S. E. Co. V. Powers, 173 Ind. 105, 88 663; Grant v. Union Pao. R. Co., 45 N. E. 1073, 89 N. E. 485; Toledo, Fed. 673. W. & W. R. Co. V. O'Connor, 77 57. Louisville & N. R. Co. v. 111. 391; Crowley v. Burlington, Hairston, 122 Ga. 372, 50 S. E. eto., R. Co., 65 Iowa, 658, 20 N. W. 120; Norfolk & W. R. Co. v. 467, 22 N. W. 918. See also East G«sswine, 144 Fed. 56, 75 C. C. A. St. Louis Coimecting Ry. Co. v. 214; Wright v. Southern Ry. Co., Eggmann, 170 111. 538, 48 N. E. 80 Fed. 260; Dowell v. Vicksburg 981, 62 Am. St. R«p. 400 [affirming & M. R. Co., 61 Miss. 519. Contra, 65 lU. App. 345]; Bluedom v. Central R. & S. Banking Co. v. Missouri Pao. R. Co., 108 Mo. Brantley, 93 Ga. 259, 20 S. E. 98. 772 Master and Sbbvant. § 320 In the absence of a law governing the rate of speed of trains in rural districts, no rate in itself is negligence. It is not the duty of persons in charge of a train to slacken its ordinary speed in approaching a curve, though it is in a cut, as a precaution against injury to persons walk- ing or working on the track, but not known or seen.^' It seems, however, that the Texas court has held that a railway company was hable for injury to a brakeman caused proximately by running a train at a dangerous rate of speed, though not imlawful. That it was for a jury to determine whether the rate of speed was dangerous. '' It has been held that the backing of a train at the rate of six miles an hour in a freight yard, upon a clean track, is not neghgence.^" It was held to have been negligence for an engineer to run his engine at a rapid rate of speed at a place where he knew a telegraph operator was hkely to be to receive orders from moving traias, without giving the usual wamiug signals." And also that employees in charge of a freight train must run it at such a rate of speed as would enable a brakeman to board it with reasonable safety while ia motion, knowing that such was the latter's duty.*'' It was weU said that the master's duty in respect to running a repair train is to exercise caution proportionate to the increased danger, and where the condition of the track is unsafe, there is an increased responsibihty as to the manner of running a traia. The appUcation of such rule to the particular facts, wiU hardly meet with the same 68. Hoffard v. Illinois Cent. 62. Galveston H. & S. A. R. Co. R. Co., 138 Iowa, 543, 110 N. W. v. Sullivan, 53 Tex. Civ. App. 394, 446, 16 L. R. A. (N. S.) 797. 115 S. W. 615. See, however, Gil- 59. Missouri, K. & T. R. Co. v. gan v. N. T., N. H. & H. R. Co., Lasater, 53 Tex. Civ. App. 61, 115 185 Mass. 139, 69 N. E. 1062; 8. W. 103. Martyn v. Minaesota & I. R. Co., 60. Dacey v. Boston & M. R. 92 Minn. 302, 99 N. W. 1133; Co., 191 Mass. 44, 77 N. E. 523. same case 95 Minn. 333, 104 N. W. 61. Indianapolis Union R. Co. 133. V. Houlihan, 157 Ind. 494, 60 N. B. 943, 54 L. R. A. 787. § 320 Methods. 773 approval. It was held that it was negligence to run such train at such, a rate of speed over the defective track, that it caused a stick of wood to fall from the tender, de- railing the train and injuring an employee.^' Suddenly starting car. Among the many grounds of alleged negligence, is to be found that of suddenly starting or stopping a car. Thus it was said, the foreman of a cable car company was not, as matter of law, negligent ia suddenly starting a car which threw the gripman off not knowing he was ia the car.** Negligence on the part of an engineer of a long ore train, cannot be predicated upon the fact that, where signalled to back his train, he first gave it a sUght move forward and in the operation a brakeman at the rear of the train was jerked off and injured.*' Suddenly stopping car. It was held that the sudden stopping of a freight train, even though accompanied by a violent or unusual jar, does not, of itself, constitute negligence.** Under particular circmnstances, however, it has been held that such action on the part of those in charge of a train, was negligent, as where an engineer, in approaching a forward train, so near that to avoid a collision it was necessary for him to stop the train by a sudden and violent appHcation of the brakes, thereby throwing a brakeman from the train.*' And also where a brakeman while passing along the roof of a car, was thrown off by the sudden stopping of the train.*' In another case it was held a question for the jury whether an engineer was guilty of neghgence in so suddenly applying the brakes to his train as to result in throwing a 63. Wilson v. Louisiana & N. 66. Allen v. Chicago, M. & W. R. Co., 51 La. Ann. 1133, 25 St. P. R. Co., 126 Iowa, 213, 101 So. 961. N. W. 863. 64. Keown v. St. Louis R. 67. Atchison T. & S. F. R. Co. Co., 141 Mo. 86, 41 S. W. 926. Co v. Carter, 60 Kan. 65, 55 Pao. 65. Phillips V. Great Northern 279. R. Co., 94 Minn. 110, 102 N. W. 68. St. Louis & S. W. R. Co. 378. V. Pope, 98 Tex. 535, 86 S. W. 5. 774 Masteb and Servant. § 320 brakeman off from the pilot of the engine, knomag the latter was in that position.*' Use of defective engine. It was said that if an engineer knew he was using a defective engine, which could not be held by the brakes, he would doubtless be guilty of negligence in approaching so close to a car in bad order, that he would be unable to check an involuntary backward movement, imtil too late to avoid injury to a man between the cars.™ Train without a conductor. It was held that a railroad company operating a freight train with a passenger coach attached without a con- ductor, the train being in charge of the engineer, the latter was a vice principal; and hence where he directed a brakeman to collect tickets and after the tickets had been collected and delivered to the engineer upon the engine, the engineer started the engine with such speed that the brakeman could not get off with safety and attempted by walking on the top of the cars to reach his position, and in doing so fell and was killed, it was held the master was liable, it being negligence to run the train without a conductor. This case was decided upon the principles of the common law." Loading cars. As to whether the method of loading cars or manner in which loaded is a duty personal to the master or other- wise, it would seem that the courts have not reached the same conclusions in aU instances. In the chapter on apph- ances, it appears the- courts are not agreed upon the ques- tion as to whether stakes used in securing the load upon ears are part of the car. In addition to the cases there considered, another recently decided by the 69. Texas & P. R. Co. v. 71. Means v. Carolina Cent. Putnam, 120 Fed. 754, 57 C. C. A. R. Co., 126 N. C. 424, 35 S. E. 58. 813. 70. Keeley v. Great Northern R. Co., 139 Wis. 448, 121 N. W. 167. ^ 320 Methods. 775 California court is to the effect that the employer having furnished proper and sufficient materials for the construc- tion of adjustable boards and stakes, it being the duty of the employees who loaded the car to adjust them as to secure a car load of ties and rails in place, is not Uable for any defect either in the construction or adjustment of such appUances.'^ In some instances cars are furnished by railroad com- panies to shippers for the latter to load them, with mate- rials which they desire the railroad company to transport, while in other instances cars are loaded by employees of the railroad company. In one case it was held a personal duty of a railroad company to have securely fastened cross pieces used to stay lumber on a flat car, and that such duty was not excused by the fact that the cross pieces were put on by the shipper who loaded the car.'' In another that a railroad company was not hable to its servants for negligence of shippers of lumber in their removal of instrumentalities for loading and unloading cars, forming temporary obstructions to the safe move- ment of cars.'^ In another that a railroad company was liable for fur- nishing a car for transportation that was unsafe on account of its being improperly loaded. It seems from the evidence, it was customary where a car was loaded with stone, to seciu-e them from moving, by blocks or stakes and in the particular case this was omitted and as a result a brake- man in coupling the car was injured by the stones moving from concussion of them with others.'^ It was held, however, that a raUroad company which has delivered a loaded car to another company for trans- shipment, was not liable to a switchman of the latter com- pany caused by the shifting of the lumber on such car, where negligently loaded, the accident having happened 72. Kerrigan v. Market St. 74. Canadian Nor. R. Co. v. R. Co., 138 Cal. 606, 71 Pac. 621. Walker, 172 Fed. 346, 97 C. C. A. 73. Wallace v. Seaboard Air 44, 24 L. R. A. (N. S.) 1020. Line R. Co., 141 N. C. 646, 54 75. Austin v. Fitchburg R. S. E. 399, 13 L. R. A. (N. S.) 384. Co., 172 Mass. 484, 52 N. E 527. 776 Masteb and Servant. § 321 after it was the duty of the latter company to provide iaspection for the car.'^ Hand cars; method of operating. It was held that the method of operating two hand oars close together, where an employee of the forward car in jimiptng from it to avoid injury of colUsion with a mule, fell upon the track and was injured by the second car run- ning upon him, was negligent." And also gross negligence for which the master was responsible for a section boss to go out with his car and hands in face of danger of meeting a train at a place where it could not be seen approaching imtil about to strike the car; or if he does so, he must stop and remove the car or send a flagman ahead, before entering the place.''* § 321. Direction of foreman or superior. It was held a question for the jvary, upon undisputed evidence, whether an experienced employee w:;,s guilty of negligence in adopting a method of doing an act, accord- ing to the directions of his foreman, which was more dan- gerous than the method suggested by such employee.''* And not neghgence chargeable to the master where an employee, at the direction of the boss of the gang to which he belonged, in order to remove a bent of a temporary structure, put his feet against it and pushed it off, thereby receiving an injury. The negligence, if any, was said to be that of such employee or his feUow-servant.*" It was also held that the question of a foreman's negli- gence was for the jury, in directing servants to remove 76. Lellis v. Mich. Cent. R. 79. Pagels v. Meyer, 193 111. Co., 124 Mich. 37, 82 N. W. 828, 172, 61 N. E. 1111. See also Re- 70 L. R. A. 598. public Iron & Steel Co. v. Berkes, 77. Middlesborough R. Co. v. 162 Ind. 517, 70 N. E. 815; Reese Stallard's Adnir., 24 Ky. L. Rep. v. Clark, 198 Pa. St. 312, 47 Atl. 1666, 72 S. W. 17. 994. 78. Louisville & N. R. Co. v. 80. Carnegie v. Penn. Bridge Helm, 28 Ky. L. Rep. 603, 89 S. W. Co., 197 Pa. St. 441, 47 Atl. 355. 709. § 321 Methods. 777 a spike holding a rail to a tie, by means of a claw and a large sledge hammer. The particular act of negligence seems to have been that the foreman directed the use of a large hammer instead of a small one. Whether the fore- man should have anticipated the injury, a piece of the spike flying from the force of the blow, was not discussed." 81. Illinois Cent. R. Co. v. Sporleder, 199 lU. 184, 65 N. E. 218. 778 Master and Servant. CHAPTER VI. RULES. 326. 327. Seo. Seo. 322. Definition of term as applied. 323. Master's duty to promulgate. Whea not required. Custom, effect of. Jury not to determine what particular rule should have been promulgated. Failure to promulgate as efficient cause of inJTiry. Rules as to conduct outside of scope of emplojrment. Duty that of ordinary care. Standard rules measure of duty. Particular illustratioos. 324. Reasonableness. Conflict with duties pre- scribed by law. Conflict with city ordinance. Question of law. Display of flags when ob- structions on track. Going between cars to un- couple. Jumping on moving engines from front. Lookout for signals. Requiring repairers to see signals are placed. 325. Sufficiency. Not required to be in writ- ing. Adoption of rules pre- scribed by other roads. Shunting ears. Several trains running on schedule time of first. 328. Dispensing with actual no- tice that track is occu- pied. Protection of car repairers. Requiring conductors to look after switches. Flying switches. Promulgation. Knowledge by employee. Duty to acquaint him- self with rules. Burden on employee to show want of knowl- edge. Presumption of knowledge. Knowledge of printed book of rules to which em- ployee has access. Where employee long in service and rules con- spicuously posted. From bulletins posted. Knowledge generally but not of particular rules. Constructive knowledge as dependent on length of of time in service. Presumptions from acts or conduct of other em- ployees. Presumtpion not applied where employee without actual notice. Employee not furnished rules upon request. Duty of master to enforce. §§ 322, 323 EULES. 779 Sec. 329. 330. Waiver by habitual or cus- tomary violation. Occasional viola tioji of rules. Specific iostructions ia addition to rules. Knowledge of customary disobedience. Distinction between rule for protection of servants and those for company's own end. Customary violations prior to receipt of rule by em- ployee. Length of time rule violated. Knowledge by agent or servant as chargeable to master. Effect of signing paper that . violation of rule not ac- quiesced in. Effect of failure to observe by servant injur 3d. See. Rule rsquiriog examination of appliances. Rule requiring display of signals and flagging train. Rule requiring section men to flag curves. Disobedience in emergaa- cies. Employee acting under or- ders of superior. Effect of conflicting rules. Proximate cause. 331. Construction. 332. Pleading. 333. Evidence ralating to. How proven. Rules of other companies. Change of rules after acci- dent. Contracts signed by em- ployee. § 322. Definition of term as applied. The word "rule," as used in common parlance, has a double meaning. It may refer to an express formula of conduct promulgated by some one having authority to prescribe or eonxmand, or to a course of practice pursued generally by one or more persons. By the rule of the master the violation of which renders the servant ipso facto neghgent, is meant not the general practice by which the work is generally done, but an explicit promulgated regu- lation or mandatory instruction.^ § 323. Master's duty to promulgate. When the nature of the business is such as to require it, it is the duty of the master which the law imposes upon him, as a personal duty, as due to his servants engaged 1. Schaufele v. Central of Geor- gia E. Co., 6 Ga. App. 660, 65 S. E. 708. 780 Master and Servant. §323 therein, to exercise reasonable care and diligence in making and promulgating rules, which if faithfully observed, will give them reasonable protection from injury.'' Where a business is conducted by many servants per- forining work independently of each other and in which the work of one becomes periodically dangerous to another, it is the duty of the master to provide reasonable precautions against such danger, among which is pro- mulgating rules and regtda'ions for the giving of warning to persons likely to be endangered when such dangerous acts are about to be performed.' Such duty is required whenever the business is so large or complicated as to make personal supervision of it by 2. Giordano v. Brandjrvdne Granite Co., 3 Pennew. (Del.) 423, 52 Atl. 332; Chesapeake & Ohio R. Co. V. Barnes' Admr., 132 Ky. 728, 117 S. W. 261; Abel V. D. & H. C. Co., 103 N. Y. 681, 9 N. E. 325, 57 Am. Rep. 773; Slater v. Jewett, 85 N. Y. 61, 39 Am. Rep. 627; Ford v. L. S. & M. S. R. Co., 124 N. Y. 493, 26 N. E. 1101, 12 L. R. A. 454; Dana Admx. V. N. Y., C. & H. R. Co., 92 N. Y. 639; Morgan v. Hudson Riv. Ore & Iron Co., 133 N. Y. 666, 31 N. E. 234; Sheehan v. N. Y. & H. R. Co., 91 N. Y. 332; Cooper v. Railway Co., 44 Iowa, 134; Wolsey V. Railway Co., 33 Ohio St. 227; Hill V. Boston & M. R. Co., 72 N. H. 518, 57 Atl. 924; Pittsburg, C. & St. L. R. Co. V. Henderson, 37 Ohio St. 549; Chicago, B. & Q. R. Co. V. McLaUen, 84 lU. 109; Hough V. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Smith v. Oxford Iron Co., 42 N. J. L. 467, 36 Am. Rep. 535; Ohio & M. R. Co. v. CoUam, 73 Ind. 261, 38 Am. Rep. 134; Patterson v. RaUroad Co., 76 Pa. St. 389, 18 Am. Rep. 412; Cumberland & P. R. Co. v. State, 44 Md. 283; Ford v. Fitohburg R. Co., 110 Mass. 240, 14 Am. Rep. 598; Murphy v. Hughes, 1 Pennew. (Del.) 250, 40 Atl. 187; Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514, 2 Am. St. Rep. 631; Merrill V. Oregon Short Line R. Co., 29 Utah, 264, 81 Pao. 85, 110 Am. St. Rep. 695. 3. Peoard v. Menominee Riv. Sugar Co., 153 Mich. 84, 116 N. W. 532; Polaski v. Pittsburg Coal Dock Co., 134 Wis. 259, 114 N. W. 437, 14 L. R. A. (N. S.) 952. The doctrine previously stated in the Polaski case in substance that in a business conducted by many em- ployees performing work inde- pendently of each other and in which the work of one becomes periodically dangerous to another, it is the duty of the master to provide reasonable precautions against such danger, and amongst these is promulgating rules and regulations for the giving of warn- ing to the persons likely to be endangered when such dangerous acts are about to be performed. § 323 Exiles. 781 the master impracticable, and this is especially so if the business is also hazardous.^ When not required. When, however, the character of the work is not com- plicated or attended with obAdous and inherent dangers, the master is not required to promulgate rules, nor where the employees have adopted a system which does not appear unreasonably or imnecessarily dangerous, as for instance a method of unloading logs from cars.^ It was declared that a master is not required to furnish employees with printed rules, when the natm-e of the employment makes it dangerous and the dangers incident thereto are of common knowledge and fully known and understood by the servant, and the safety of others cannot be imperiled by any act or omission of his in the perform- ance of his duties and his safety depends wholly upon the degree of skill, care and caution used by himself; and hence it was heldrthat the master was not required to promulgate rules in respect to the operation of an appara- tus for generating electricity in an electric Ught plant.* Nor is it required of a railroad company that it promul- gate rules for simple duties, the danger of which is obvious, unless from the nature of the work in which the employees are engaged, the master in the exercise of reasonable care should have foreseen and anticipated the necessity for such rules.'' The nature of the business must require rules to make the promulgation of them necessary.* was held Qot to apply, where there 6. Fritz v. Salt Lake & O. were but few employees all workiag Gas & Elee. Light Co., 18 Utah, together, engaged at the single task 493, 56 Pac. 90. of transferring a bank of earth to 7. Norfolk & W. R. Co. v. wagons. PerQ v. Wussow, 144 Graham, 96 Va. 430, 31 S. E. 604; Wis. 489, 129 N. W. 622. Moore, etc., Co. v. Richardson, 4.' Giordano v. Brandywine 95 Va. 326, 28 S. E. 334, 64 Am. Granite Co., 3 Pennew. (Del.) St. Rep. 785. 423, 52 Atl. 332. 8. Where aa smployee of a 5. Paimaleau v. International a company engaged in the business Paper Co., 75 N. H. 69, 71 Atl. 31. of roasting ore, was injured while 782 Masteb and Sebvant. § 323 A system of conducting an extensive manufacturing business may be complete without promulgation of written or printed rules, and where employees operating machinery or appliances are fully acquainted with the master's system or methods, the neglect of one such to comply therewith resulting in injury to an employee, will not have the effect to render the master hable on the ground of failure to promulgate printed rules.' Custom, effect of. Aa employee cannot complain of the absence of rules prescribing the course of action of servants where there is a imiversal custom among employees to the same effect as the rule which such employees demanded.^" The rule requiring employers to make and promulgate rules was applied where a car repairer was injured while repairing cars on a track, caused by other cars being shimted against the one upon which he was at work. It appeared that some roads had adopted a rule that a blue flag by day and a blue Ught by night placed on a car indi- under a, car used by tha company, shown, after the accident occurred, engaged in removing loose ore from that it might have been prevented the front of the wheels, by another by adopting and enforcing some car coming against the one under particular rule, that woidd consti- which he was at work, and the tute no test of liability. The failure charge was that his iajuries were to adopt rules is not proof of negli- the result of the neglect of the com- gence unless it appears from the pany to promulgate proper rules nature of the business in which the regulating the work of the em- servant is engaged that the master, ployees, it was said there was in the exercise of reasonable care, nothing in the nature of the busi- should have foreseen and antioi- ness tha;t made it necessary to make pated the necessity of such precau- and pubhsh rules. It is not sug- tions. Morgan v. Hudson River 0. gested what particular rule the & I. Co., 133 N. Y. 666, 31 N. E. defendant could have adopted that 234. would have been Ukely to prevent 9. Barto v. Detroit Iron & the aocidettt. No evidence was giv- Steel Co., 164 Mich. 135, 129 N. en that any rule was in use in busi- W. 15. ness of a simUar character, nor was 10. Rutledge v. Missouri Pao. there any evidence by experts or R. Co., 110 Mo. 312, 19 S. W. 38 other witnesses to show that any [afBrmed in 123 Mo. 121, 24 S. W. rule was practicable or necessary 1053, 27 S. W. 327. in such oases. Even if it could be § 323 EuLEs. 783 cated that ear repairmen were at "work iindemeath, and prohibiting the coupling or moving of a car thus protected, and that defendant had not adopted such a rule. It was also held that the fact that the repairmen among them- selves had a custom of putting up a red flag in such cases, was immaterial, it not appearing that such a rule was promulgated by the defendants, that obedience to it was required, or that it was generally known to engineers." It would seem that such a custom generally known to employees would obviate the necessity of such a rule. Thus where a railroad company had not expressly provided by rule as to watchmen guarding an employee engaged in repairing cars on the track, but it appeared that it had become an vmiversal custom for employees to watch and guard a repairman, and such duty was weU understood by them, it was held that such custom thus became a rule of the company as weU as an imderstanding between the employees. ^^ It was held, however, that the existence of a rule cannot be established by mere supposition or understand- ing of employees. Thus it was not competent to show by employees that it was generally understood by them that trains should not be operated, while switching, faster than six miles an hour. ^ ' Where, however, it has been the custom to give signals of the movement of an engine, it was held the law implies such duty independently of prescribed rules. ^^ There should be some proof that a rule which it is claimed should have been promulgated, is not only rea- sonable but practicable. In order to show that such a rule is practicable, ordinarily it should be made to appear that such rule had been promulgated by other well 11. Abel V. D. & H. C. Co., 103 13. James v. Northern Pac. N. Y. 581, 9 N. E. 325, 57 Am. R. Co., 46 Minn. 168, 48 N. W. Rep. 773. 783. 12. Luebke v. C, M. & St. 14. SobiesH v. St. Paul & D. R. P. R. Co., 63 Wis. 91, 23 N. W. Co., 41 Minn. 169, 42 N. W. 863. 136, 53 Am. Rep. 266. 784 Mastes and Servant. § 323 managed roads, perhaps not all but at least a number of them. ^* Jury not to determine what particular rule should have been promulgated. It seems doubtful whether it is proper in any case to submit to a jury the question of what particular act the master should perform or what particular rule he should make and promidgate. Such is the reasoning of the de- cided cases cited. ^* Failure to promulgate as efficient cause of injury. To sustain a charge of negligence upon failure to promid- gate rules or regtdations, it must appear that such failure was efficient to cause the injury. A finding that it was the proximate cause of the injury, in the absence of evidence that it was the efficient cause, can be based only upon mere guess or conjecture and is unauthorized.^' Where the petition alleged that the cause of injury to a switchman who was injured by the cars suddenly moving from an imknown cause as he was proceeding to couple them, was the failure to estabUsh rules or a system of signals regulating its servants in moving cars and coupling them, it was held that no cause of action was stated; that the allegations were inconsistent; that no casual connection appeared between the accident and the failure to have rules. ^* Rules as to conduct outside of scope of employment. The master is not bound to promulgate rules as to how his servants shall conduct themselves, outside the scope of their employment, or as to how his business shall be carried on or any act done which is not carried on or 15. Bemgan v. New York, L. Philadelphia & R. Co. v. BjUips, E. & W. R. Co., 131 N. Y. 582, 30 88 Pa. St. 405; Heddles v. RaUway N. E. 57; Shepherd v. Northern Co., 74 Wis. 239, 42 N. W. 237. Cent. R. Co., 63 Hun 634, 18 N. Y. 17. Johanson v. Webster Mfg. Supp. 665. Co., 139 Wis. 181, 120 N. W. 832. 16. McGrath v. Railway Co., 18. Rutledge v. Missouri Pa- 63 N. Y. 522; Houghkirk v. Canal cifle R. Co., 110 Mo. 312, 19 S. W. Co., 92 N.Y. 219, 44 Am. Rep. 370; 38. § 323 EuLEs. 785 done by his knowledge and permission either express or implied." Duty that of ordinary care. In maMng rules for the government of its employees, a railroad company is only bound to use ordinary care and to anticipate and guard against such accidents and casualties as may reasonably be foreseen by its managers exercising ordinary care. It cannot be assumed that it can by rule guard against and prevent every injury to them. ^^ The question generally is wbetber by th.e exercise of any such prudence and foresight they could have adopted any precautions against injury to the employees, other than such, as they did; in other words, whether there were still other precautions that would suggest themselves to men of ordinary intelligence and vigilance, having the requisite skill and experience to carry on the particular business or the particular branch thereof. ^^ Standard rules measure of duty. The master's duty is performed by the adoption of standard rules generally in force in the operation of rail- roads so far as the rules are properly apphcable in its business.^" Particular illustrations. In many cases the question whether the omission to promulgate rules was neghgence has been held one for the jury.^^ 19. Moran v. Rockland T. & 23. Elevator bins, work in. C. St. R. Co., 99 Me. 127, 58 Atl. Where an employee was injured 676. while at work in an elevator, where 20. Berrigan v. N. Y. L. E. his work required that he should & W. R. Co., 131 N. Y. 582, 30 N. enter the bins therein, whether an E. 57. omission on the part of the master 21. Berrigan v. New York L. E. to make rules and regulations pre- & W. R. Co., 131 N. Y. 582, 30 scribing the conditions imder which N. E. 57. he should be required or permitted 22. Jackson v. Wheeling Ter- to enter the bins at the bottom was minal R. Co., 65 W. Va. 415, 64 negligence, might have bean left to S. E. 450. the jury. McGovem v. C, V. R. 1 M. & S.— 50 786 Master and Servant. §323 Among rules which it has been held the duty of the master to promulgate are the following rules as to opera- tion of traias in general;^* rules as to &jiag switches;^* rules as to loadiag lumber upon cars;^' rules for the pro- Co., 123 N. Y. 280, 25 N. E. 373. Removing ashes prom engine. It was a question for the jury whether a raiboad company was negligent In not promulgating rules to regulate the manner and conduct of persons employed in removing ashes from engines. The practice was for the hostler in charge of the engine to shake down the ashes and when through to ring the bell, and the other employee, called a hoer, to crawl underneath the engine and with hose remove the ashes from the ash pan, and when through to crawl out and show him- self or call out all right. The hostler moved the engine before the hoer had reached a place of safety where- by he was run over and one leg cut off. McCoy V. N. T. Cent. & H. R. R. Co., 185 N. Y. 276, 77 N. E. 1174. Track, condition of. It was held by the Texas court that it was a question for the jury to determine whether the master ought not to have promulgated a rule whereby the conditions of a track with refer- ence to cindars thereon would be made known to a brakeman. St. Louis, S. F. & R. Co. v. Ames, 94 S. W. (Tex. Civ. App.) 1112. 24. Where a fireman was in- jured while his train was running with the engine reversed, the train becoming derailed by collision with a cow on the track, and such method of operating was necessary by reason of the want of a turn- table, at a station, it was said, rules forbidding operation of trains in this negligent manner would have been obeyed by defendants employed, and the accident avoided. The negligence of the defendant, then, is traceable to its failure to provide necessary rules for con- ducting its business with proper safety to its employees. (The case does not disclose in what particular the manner of running the train was negligent. Presum- ably it was the rate of speed or operating with the engine reversed). Cooper V. Central R. of Iowa, 44 Iowa, 134. 25. It is feasible and proper for railroad companies to have rules and regulations for tha govern- ment of its employees in making fljdng switches and in the shunting and kicking of cars for the warn- ing of persons liable to be injured. It was held that a petition which bases a charge of negligence upon the company's failure to adopt such rules states a cause of action. Reagan v. St. L., K. & N. W. R. Co., 93 Mo. 348, 6 S. W. 371, 3 Am. St. Rep. 542; Chicago & N. W. R. Co. V. Taylor, 69 111. 461, 18 Am. Rep. 626. But the failure of a railroad company to make a rule regulating the making of flying switches is not negUgence as to employees whom it was not bound to anticipate would be present at the place. Lord v. Boston & M. R. Co., 74 N. H. 39, 65 AtL 111. 26. It was held to be the duty of a railroad company transporting lumber upon open cars, to adopt §323 EULES. 787 tection of car repairers;''^ rules as to reducing speed at a switch;^* rules as to the movement of trains;^' rules for some system for loading, having regard for the safety of its servants, and those traveling over the road, and of all persons who may be in the vicinity of such cars. The facts were that the manner of load- ing was left to employees, the com- pany furnishing proper stakes, which were not used, and an em- ployee was injured by reason of the improper loading of the car with- out using the stakes. Ford, Admx. V. L. S. & M. S. R. Co., 124 N. Y. 493, 26 N. B. 1101, 12 L. R. A. 454. 27. It is the duty of a railroad company to promulgate and en- force proper rules for the protection of car repairers, engaged in repair- ing ears upon repair tracks, such as wiU reasonably guard employees engaged in such work against avoid- able dangers. Steber v. Chicago & N.W.R.Co., 139Wis. 10, 120 N. W. 602. It was held proper for the jury to determine from the evi- dence whether rules should have been established providing for the furnishing of appliances and a system for protecting car repairers while at work at the particular sta- tion. There was some evidence that there was a rule requiring the use of blue flags and blue lamps on cars under which inspectors were at work, and that defendant did not require it to be observed at the station where an inspector was injured by oars being moved against the one under which he was at work. Warn v. N. Y. C. & H. R. Co., 92 Hun 91, 36 N. Y. Supp. 336. 28. Negligence may be predi- cated upon the failure of an electric railway company to require its cars to be slowed down on approaching a switch which is un- provided with a lock, target or light, though the misplacing of the switch is the only danger to be apprehended. Noe v. Rapid Rail- way Co., 133 Mich. 152, 94 N. W. 743. Rules which in terms require that all trains must approach sta- tions with reduced speed and with care; that in approaching switches the greatest care must be taken, not directing what specifically shall or shall not be done, are but the ex- pressions of an engineer's duty at common law, and leave the ques- tion, where he is injured by reason of a misplaced switch, one for the jury as to the exercise of proper care on his part. Lake Shore & M. S. R. Co. V. Parker, 131 111. 557, 23 N. E. 237. 29. It is the duty of railroad corporations to prescribe, either by means of time tables or other suit- able modes, regulations for running their trains with a view to better safety, but it is obvious that obedi- ence to these regulations must be intrusted to the employees having charge of the trains. Such obedi- ence is matter of executive detail, which, in the nature of things, no corporation can personally oversee and as to which employees must be relied upon. This was said in refer- ence to a charge of negligence in sending out two trains close to- gether; and because it did not affirmatively appear whose act caused the injiu^i whether one representing the personal duty of the master or one merely a fellow- 788 Master and Seevant. §323 the control and operation of hand cars;'" rules as to the servant, a judgment for the plaintiff was reversed. Rose, Admx. v. Boston & Albany R. Co., 68 N. Y. 217. It is a positive duty on the part of a raUroad company to frame and promulgate such rules and schedules for the moving of its trains as will afford reasonable safety to the operatives who are engaged in moving them, and for the failure to perform which it wiU be responsible to any person injured as a consequence thereof, whether such person be a passenger or an employee. This is a personal duty ; and while a corporation is compelled to act through agents, yet the agents in performing duties of this character, stand in the place of a ad represent the principal. In other words they are vice principals. Such being the duty, it foUows log- ically that when schedules are de- parted from, or when trains are Bent out without a schedule, such orders should be issued by the company as wUl afford reasonable protection to the employees en- gaged in running such trains. This was said where the schedules upon which trains were accustomed to run were interrupted by a special order or direction which resulted in a collision. Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514, 2 Am. St. Rep. 631. However, it is said the law does not require a railroad company to direct the movement of its trains by orders from the dis- patcher alone, nor by a system of signals only, nor does it require a company to adopt any particular form of orders or any particular system of communicating them; but the company has the right to direct ths movement of its trains by train orders alone, or by train orders of any form and signals, or by signals alone, or by time card alone, provided the means adopted are brought to the knowledge of its employees and they are reasonably well calculated to secure the safety of the men, if obeyed by them. Such a company is not required to change its orders or signals for the movement of trains because some other raiboad has adopted a differ- ent system of orders or signals; and a railroad company may even have in use a system of orders or signals shown to be less safe than those adopted by another railroad, with- out being liable to its employees for the consequences of the use of such orders or signals, if the orders and signals in use are reasonably well calculated to secure the safety of employees of the company, if obeyed by them. NegUgence in this respect caimot be predicated upon proof that another company had adopted a different order for the operation of its trains. Hanni- bal & St. J. R. Co. V. Kanaley, 39 Kan. 1, 17 Pao. 324. 30. Wallin v. Eastern R. Co., 83 Minn. 149, 86 N. W. 76, 64 L. R. A. 481. §323 Rules. 789 giving of signals by railroad companies;'^ and rules as to shunting cars.'" 31. Where a section hand, while engaged with others in bolting rails, became so engrossed in the performance of his duties that he did not see an approaching train, and was struck by it and injured, and no warning by whistle or bell was given, though all the other employees had warning of its approach, and it appeared there was a rule of the company that such employees should look out for their own safety, it was held that if, under the cireumstaaces of the particular case, a rule providing for warning was necessary, and by the exercise of reasonable care that necessity could have been foreseen, it was the duty of the company to prescribe such a rule. Whether it ought to have so pro- vided was a question for the jury. So was the question of contribu- tory negligence on the part of such employee. Railway Co. v. Murphy, 50 Ohio St. 135, 33 N. E. 403. It was said that an employee engaged in filling a tank on cars with water while standing on a ladder, could not be heard to complain that rules ought to hava been estabhshed by means of which he could have been warned of the approach of cars to the one upon which he was at work to be coupled thereto, where it appeared that it had been customary for the week he had performed such duties to take a car out at such point while he was doing such work, and he could plainly see, if he had looked, the approach o such cars. Houston & T. C. R. Co. v. Strychar- ski, 6 Tex. Civ. App. 555, 26 S. W. 253. Where a petition alleged, among other thirds, that a boy of seventeen years was injured, and was at the time in the employ of a raUroad company engaged to per- form the duties of carry! Qg water for a gang of men engaged in repairing the road bed and to take care of the tools used by them, under charge of a foreman, such gang being carried La a caboose car attached to a freight train, a ad at a point on the line the engineer, fireman and a brakeman, who were not under the control of such foreman, detached the engine, leav- ing the cars on the main track, and proceeded to get some cars from the side track to put ia the train, and in the meantime the fore- man directed the plaintiff to notify the laborers to get out and remove snow from the track, and as he was getting off the rear plat- form, after the men were out, the engineer and brakeman kicked the cars against those in the train, throwing the plaintiff off, and the negligence charged against the defendant was a failure to provide rules or signals or system to be observed by such engineer in oper- ating such locomotive and detached cars, so to give to the occupants of said caboose or to the plaintiff therein some alarm, warning or notice of the approach and impact of said detached cars, and the court having sustained a demurrer to the complaint, it was held error. It was said that in these cases of making a fljdng switch and of 790 Master and Seevant. §323 On the other hsmd, there is, in many cases, nothing in the nature of the work requiring rules.'' 33. Opehating obb kilns. A servant was injured while removing ore from under a car, and while so engaged under the car, a car above coming down the incline, started from some cause unknown, pushed against the car uader which he was at work, causing the injury. The defendant, his employer, operated a series of ore MLos in front of which was a track, upon which these cars were situated, used for the purpose of carryii^ away the ore. It was held there was nothing in the nature of the work render- ing it necessary for the defendant to make rules for its employees to prevent such an accident. Morgan V. Hudson River Ore & Iron Co., 133. N. Y. 666, 31 N. B. 234. Position op cabs in train. It is impracticable to establish by gen- eral rules the position a damaged car shall occupy in a train. Much depends upon the character of the defect. Shuster v. Philadelphia, B. & W. R. Co., 6 Pennew. (Del.) 4, 62 Atl. 689, 4 L. R. A. (N. S.) 407. Private railroad. It was held shunting or kicking of cars it is feasible and perfectly proper to have some rules and regulations to warn persons liable to be injured. Reagan v. St. L., K. & N. W. R. Co., 93 Mo. 348, 6 S. W. 371, 3 Am. St. Rep. 542. The moving of railroad cars by a locomotive on a warehouse track, where the space between an ordinary car and the warehouse is only about fifteen inches, is such dangerous business as to arouse the duty of the railway company to promulgate : egulations requiring warning to be given by the employees in charge, whenever such cars are to be moved. Bain v. Northern Pacific R. Co., 120 Wis. 412,98N.W.241. 32. But in the absence of evi- dence showing it is to be useful or feasible to prescribe rules to govern the shunting of railroad cars, negli- gence caimot be predicated upon the fact that the rules were not established. Atchison, T. & S. F. R. Co. V. Carruthers, 56 Kan. 309, 43 Pac. 230. Where, however, a railroad company's employees are known to be doing their work in a reckless and dangerous manner, it is the duty of the company to change the manner of operation by some regulation or rule, as for instance, the practice of shunting cars by "kicking" upon tracks, running into a repair shop in which are unwarned and unprotected employees. Doing v. N. Y., 0. & W. R. Co., 151 N. Y. 579, 45 N. E. 1028. It is also the duty of a rail- road company engaged Ln repairing its track, which it owes to a brake- man engaged in shifting cars to pro- vide for his protection while in the performance of his duties, and its failure to make rules in respect thereto, is negligence. The burden of showing absence of rules is on the brakeman. Smith v. Boston & M. R. Co., 73 N. H. 325, 61 Atl. 359. § 324 EuLES. 791 Thus, a railroad corapany in the operation of its rail- road, freight and coal yards, is not bound to make, estab- lish and enforce rules and regulations to protect its serv- ants and employees from the risk of danger incident to the employment, or from those risks which are obvious or risk of danger arising from the negligence of co-servants in the common employment, nor from the risk of danger to be incurred by reason of the want of ordinary care on the part of the servants in his employment.'* Likewise, where a car repairer was killed while repairing cars in the yard by other cars moving agaiast the one under which he was at work, caused by the breaking of a coupling pin, and it was claimed the want of sufficient rules and regulations was the cause of his injury, it was held that the work of moving cars in a railroad yard was of such a nature that it could not be arranged with exactness and governed by rules as in the running of regular trains. " So the master is not required to promulgate a rule forbidding employees to absent themselves during work- ing hoiu-s, or otherwise neglect their duty.'^ § 324. Reasonableness. As stated hereafter, the courts quite generally hold that the question of the reasonableness of a ride is proper for consideration and determination by courts. However, the Ohio court held that an inquiry into the reasonableness of rules and regulations is proper as to those not in the service of a railroad company, but as to those in such employ it is not proper, and state: "If a railroad com- pany cannot have strict compliance with its orders for its that no duty rested upon the mas- formulation of rules in respect ter to promulgate rules for the thereto. Boyer v. Eastern R. Co., operation of a small private rail- 87 Minn. 367, 92 N. W. 326. road. Jemnienski v. LobdeU Car 34. Voss v. Delaware L. & W.R. Wheel Co., 5 Penn. (Del.) 385, 63 Co., 62 N. J. L. 59, 41 Atl. 224. Atl. 935. 35. Besel v. N. Y. C. & H. R. Unloading logs from cab. The Co., 70 N. Y. 171. ordinary labor of unloading logs 36. Gorman v. OdeU Mfg. Co., from flat oars is not of Such a haz- 75 N. H. 123, 71 Atl. 215. ardous character as to require the 792 Master and Sebvant. § 324 servants, subordination and discipline would be at an end."" There may be a class of orders and directions to which the doctrine above stated might not be applicable, but in general and upon principle why is not the Ohio court cor- rect. The master has the imdoubted right, within the law, to have his business conducted in his own way, and if servants are not content to thus perform it, they should not engage in the service, or if engaged, leave it, when they are not content with the method. It is true that rules de- fining the duties of certain employees to whom the running and immediate control of trains is confided, are essentially private regulations of the master in the orderly and pru- dent conduct of his business, and do not fix the obligation and liability of the master to third persons and the public as these obligations are fixed by law and cannot be deter- mined by such rules, nor ordinarily increased thereby.'' But that the master cannot by rules or by contract, to some extent at least, limit his obligations and liability to his servants, may well be doubted, and especially where such obUgations and liability are not absolutely fi:xed by law. Conflict with duties prescribed by law. It was stated by the California court, that a rule pro- mulgated by a railroad company, which is utterly im- practicable, the only result from which would be to relieve the company from its duty to use ordinary diligence in furnishing safe appUances and safe conditions for the performance of services, is against public policy and void; and its non-observance by employees will not relieve the company from negligence. This was applied to a rule prohibiting coupling by hand, requiring employees to examine, so as to know the condition of draw heads, etc., before coupling.'' 37. Wolsey v. Railroad Co., 33 39. Holmes v. Southern Pac. Ohio St. 227. R. Co., 120 Gal. 357, 52 Pae. 652. 38. Dixon v. Grand Trunk * Western R. Co., 155 Mich. 169, 118 N. W. 946. § 324 EtJLEs. 793 If the doctrine were that the duty of the master was absolute to furnish safe appHances and safe conditions, the rule thus stated might not be without force. But such is not the prevailing doctrine. The duty of the master in these respects is that of the exercise of reasonable care, and is not absolute only to the extent that it is I)ersonal to the master and cannot be delegated so as to reUeve him. from the consequences of neghgent perform- ance. In the absence of a statute, providing otherwise, a servant, by implied contract, may reUeve the master from the performance of this duty which he does by volun- tarily and with knowledge of defects, and incident dan- gers, entering or continuing the employment. It has never been held that such imphed contract was against pubho pohey. If the chapters on assumed risk and con- tributory negligence are examined, it will be foimd that such rule as criticised has been upheld, and it has also been held that rules of a railroad company that employees are to see that the machinery and tools are in proper con- dition and if not to see that they are put so before using them, and that trainmen handhng cars are to see if they are safe to be handled, and not to handle them unless they are safe, are reasonable and proper. *" And also that non-observance of a rule requiring brake- men to inspect the links and drawheads of the cars which make up his train, precludes recovery, where injured by a defective Unk, which defect by proper inspection he would have discovered.*' Under a statute relating to mines, rules which should govern aU persons working in the mine were required to be posted. It was held, however, that imder the guise of rules the operator could not contract against his negU- gence, and hence ndes to the effect that the servant 40. Louisville & N. R. Co. v. 41. Alabama G. S. R. Co. v. Pearson, 97 Ala. 211, 12 So. 176; Carroll, 84 Fed. 772, 28 C. C. A. Louisville & N. R. Co. v. Orr, 91 207. Ala. 548, 8 So. 360. See also Scott V. Eastern R. Co. of Minnesota, 90 Minn. 135, 95 N. W. 892. 794 Masteb and Sebvant. § 324 assumed all risks from falling roofs, or from the unsafety of the place of work, and imposing the duty upon the employee of ascertaining and avoiding danger, were mere attempts to make laws under the guise of rules, and did not relieve the master from the performance of his duty in respect to such matters. ^^ These duties were imposed absolutely by statute. Conflict with city ordinance. A rule of a railroad company that persons accepting employment assumed all risks, was held immaterial in an action for personal injury to an employee, on the ground that the company had no power to relieve itseK by contract from the effect of disobeying a city ordinance and a dis- obedience by it was not a hazard assumed by an em- ployee.*' Question of law. The question of the reasonableness of rules is purely a question of law to be determined by the court. A reason and a sufficient one for this holding is that, as a question of law, certainty is obtained. If it be submitted to juries, one may hold a rule to be reasonable, and the next hold the reverse.** 42. Consolidated Coal Co. v. Florida R. Co. v. Rhoads, 25 Fla. Lundak, 196 111. 594, 63 N. E. 40, 5 So. 633, 3 L. R. A. 733, 23 1079; Himrod Coal Co. v. Clark, Am. St. Rep. 506; Louisville, etc., 197 III. 514, 64 N. E. 282. R. Co. v. Fleming, 14 Lea (Tenn.) 43. Chicago & Eastern R. Co. 128; Norfolk & W. R. Co. v. Wy- V. Lawrence, 169 Ind. 319, 79 N. E. sor, 82 Va. 250; Chilton v. St. L. 363, 82 N. E. 768. & I. M. R. Co., 114 Mo. 88, 21 S. 44. Little Rook & M. R. Co. W. 457, 19 L. R. A. 269; Avery v. V. Barry, 84 Fed. 944, 28 C. C. A. Railway Co., 121 N. Y. 31, 24 N. B. 644, 43 L. R. A. 349; Vedder v. 20; St. L., I. M. & S. R. Co. v. FeUows, 20 N.Y. 126; Illinois Cent. Adcoek, 52 Ark. 406, 12 S. W. R. Co. V. Whittemore, 43 111. 420, 874; Hoffbauer v. D. & N. W. R. 92 Am. Deo. 138; Chicago & A. Co., 52 Iowa, 342, 3 N. W. 121, R. Co. V. Stevens, 80111. App. 671; 35 Am. R«p. 278; Kansas City, Bass V. Chicago & N. W. R. Co., Ft. S. & M. R. Co. v. Hammond, 36 Wis. 450, 17 Am. Rep. 495; 68 Ark. 324, 24S. W. 723; Kenefiok- Le Duo V. Northern Pac. R. Co., 92 Hammond Co. v. Rohr, 77 Ark. Minn. 287, 100 N. W. 108; South 290, 91 S. W. 179. §324 , EuLES. 795 The OMo court, as has been stated, held the doctrine that the question of reasonableness of rules, so far as employees in general were involved, was not a question for the courts. It was said, however, by that court in another case, that whether a rule of a railroad company is or is not a reasonable rule is in many eases a question of law, but in the particular case it was held it could not be affirmed as matter of law that the special order there in question was reasonable, and therefore it became a mixed question of law and fact for the jury.^^ It was held, however, by the Texas covirt that whether or not the evidence is sufficient to show a case in which the duty to make rules rested upon the defendant is a question of law for the court. If the facts raise that issue, it should be submitted to the jury. Wh.en submitted to the jury, the reasonableness of such regulations is a question for the jury.*^ And by the Illinois court that whether any given rule be reasonable and therefore within the power of the corporation, or whether it be um-easonable and therefore ultra vires, is a question of law for the court, but whether such rules are adequate for the safety of the management of trains is a question for the jury. " 45. Tte facts were that an the result. It was left to the jury employee on a gravel train, while to say whether such order was the train was standing on the main reasonable under the oircumstan- track, was injured in a collision ces. Wolsey v. Railway Co., 33 with an approaching train. Gravel Ohio St. 227, was not rsferred to. trains, by rule, were prohibited Railway Co. v. Henderson, 37 from standing on the main track Ohio St. 549. without permission. The super- 46. Gulf C. & S. F. R. Co. v. intendent by special order, gave Finley, 11 Tex. Civ. App. 64, 32 such permission, whereupon it be- S. W. 51 ; Texas & N. O. R. Co. v. came the duty of the conductor of Echols, 87 Tex. 339, 27 S. W. 60, the gravel train to send a flag man 28 S. W. 517. See also Pittsburg to notify approaching trains. This C. & St. L. R. Co. v. Lyon, 123 Pa. the conductor did, but the flag- St. 140, 16 Atl. 607, 2 L. R. A. 489, man so negligently performed his 10 Am. St. Rep. 517. duty that the warning was mis- 47. Chicago, B. & Q. R. Co. v. taken by the engineer of the McLallen, 84 111. 109. See also freight train, and a collision was Railway Co. v. Watts, 63 Tex. 549. 796 Masteb and Servant. § 324 And by the Georgia court that whether an "order" given by a conductor to an employee on the train relating to the safety of servants or for the protection of the inter- ests of the company, was reasonable, was held to be a question for the jiiry. The order in question was to the effect that the injured servant should not sit with his legs hanging over the sides of the car.^* And by the Texas court that whether "orders" given by the superintendent to the conductois and engineers of colliding trains were ambiguous and conflicting, was a question for the jury.*' Display of flags when obstructions on track. Where a rule was in question requiring that at a quarry when obstructions were upon the track, flags should be displayed, it was held such rule was reasonable and suffi- cient, though whisthng at the approach to such quarry was not required.^" Going between cars to uncouple. A rule of a railroad company forbidding employees going between cars in motion to uncouple them is reason- able and wholesome." Such rule does not apply when cars to be coupled are standing still and the engine is not attached. ^^ A servant injured in violation of such rule, cannot recover from the master, if such rule was in force. ^' Jumping on moving engine from front, A rule forbidding employees to jump on switch engines from the front when moving was held to be reasonable as matter of law. ^* 48. Prather v. Richmond & D. 51. Memphis & C. R. Co. v. R. Co., 80 Ga. 427, 9 S. E. 530, 12 Graham, 94 Ala. 545, 10 So. 283; Am. St. Rep. 263. Huggins v. Southern R. Co., 148 49. Galveston H. & S. A. R. Ala. 153, 41 So. 856. Co. V. Arispe, Admx., 5 Tex. Civ. 52. Driver v. Southern R. Co., App. 611, 23 S. W. 928, 24 S. W. 93 Miss. 190, 46 So. 824. 33. 53. Lake Erie & W. R. Co. v. 50. Kansas City, Ft. S. & M. Craig, 25 C. C. A. 585, 80 Fed. 488. R. Co. V. Hammond, 58 Ark. 324, 54. Francis v. Kansas City, 24 S. W. 723. St. J. & C. B. R. Co., 110 Mo. 387, 19 S. W. 935. § 325 Etjles. 797 Lookout for signals. Rules of a railroad company requiring the engineer to keep a careful lookout for signals, to stop a train when a signal is not understood or is imperfectly displayed or absent from its usual place, and expressly requiring that he "must know" when approaching a switch that it is in proper position, are reasonable and vahd." Requiring repairers to see signals are placed. A rule which requires car inspectors or ear repairers when at work under or about a car to see for themselves that a blue flag by day and a blue light by night is dis- played at each end of the car or cars upon which they are working, is a reasonable rule, providing for the safety of employees and not limiting the master's liability for negligence; and an agreement with the master by the servant at the time of his employment that he understood such rule and would obey it, is binding upon him.^* § 325. SuflSciency. Whether the rules promulgated are adequate and suf- ficient for the protection of employees presents a far different question from that of the reasonableness of rules. The question of the sufficiency of rules cannot be submitted to a jury in the absence of evidence of careless- ness in the formulation of rules, or of prior accident attend- ing their operation, or that more effective rules have been adopted by other roads. ^^ It was stated, however, in respect to an alleged verbal rule made by a foreman in respect to guarding a car re- pairer, that the master's duty in respect to formulating and establishing rules being that of ordinary care, a rule to protect employees should be so framed as to guard them to a reasonable extent against the consequences, not only against the carelessness of co-employees, but of 55. St. Louis & S. F. R. Co. v. N. E. 748, 11 L. R. A. (N. S.) 413. Dewees, 153 Fed. 56, 82 C. C. A. 57. Whalen v. Michigan Cent. 190. R. Co., 114 Mich. 512, 72 N. W. 56. New York C. & St. L. R. 323. Co. V. Ropp, 76 Ohio St. 449, 81 798 Masteb and Seevant. § 325 their own carelessness also. If a rule is actually made, the question still remains whether it is proper and sufficient under the circumstances, for due dihgenee is not satisfied by an insufficient and inadequate rule. There is an essen- tial distinction between rules made by a master for his own protection and the regulation of his business ia his own interest, and those made for the protection of his servants, since in the one ease the sufficiency affects no one but himself, while in the other the lives and Umbs of his servants are involved. The reasonableness of rules made for the protection of the master's interest is quite different from the sufficiency of rules made to protect human life. The former involve simple inconvem'ences to the public, if the rules are unreasonable, whUe the latter involve the Uves of employees. It may be that where the situation is simple and entirely free from complications, the sufficiency of rules to protect employees would be a question of law. When, however, the situation is complicated, owing to the large number of tracks and traias, the rule being only verbal so as to leave its enforcement to the unaided recol- lection of a simple announcement; delay in finding the depot master; the difficulty of getting men to act as watchmen; the danger to run a momentary risk rather than to consiune time in order to be safe; were so great that the sufficiency of the verbal instructions was for the jury." It was held, however, by another court, that such rules should not only include the placing of danger flags upon cars when repairers are imder them, but also forbid any coupUng to be done by a locomotive while they are so engaged.^* Not required to be in writing. It is not required it shall be in writing. A verbal rule is sufficient where known by employees and the one injured.*" 58. Devoe v. N. Y. C. & H. R. 60. Grady v. Sputhem R. Co.. Co., 174 N. Y. 1, 66 N. E. 568. 34 C. C. A. 494, 92 Fed. 491. 59. Pool V. Southern Pao. R. Co., 20 Utah, 210, 58 Pao. 326. § 325 EuLEs. 799 Adoption of rules prescribed by other roads. Negligence, however, cannot be imputed to a railroad company upon the sole ground that it has failed to adopt the same methods for operating its road, that other roads have in use, even if such methods are better and safer, if the method in use is reasonably safe, and has proved so to be, as the result of long experience." Having promulgated rules amply sufficient to protect employees, if observed, its fuU duty is performed, and neghgence cannot be predicated upon failure to promulgate additional rules. *^ It may be shown, however, that others engaged in the same business adopted and enforced rules and what such rules are.^' Where it appeared that the rules adopted by the de- fendant were such as were in use by ninety per cent of the railroads, and were sufficient as proven by experience, a master could not be held negligent for the absence of a rule providing that each train crew going in the same direction should be informed of the whereabouts of the other.** An electric railway company having promulgated a rule that cars should not be started backwards until the motorman should receive three beUg from the conductor, who should remain on the rear platform while the car was moving backward, a failure to adopt other rules regulating the running of cars backward, was not negligence justifying a recovery for injuries to a motorman in collision with a backing car, it not appearing that other or different rules were in use upon other roads. *^ 61. Pearsall v. New York Cent. 64. Nolan v. New York, N. & H. R. R. Co., 189 N. Y. 474, 82 H. & H. R. Co., 70 Conn. 159, 39 N. B. 752. Atl. 115, 43 L. R. A. 305. 62. Merchants & Planters Oil 65. Seooombe v. Detroit Elee- Co. V. Bums, 96 Tex. 673, 74 S. W. trie Railway Co., 133 Mich. 170, 758. 94 N. W. 747. 63. Stone v. Union Pac. R. Co., 35 Utah, 305, 100 Pac. 362. 800 Master and Seevant. § 325 Shunting cars. The practice of kicking cars from one track to another upon which men are at work, and so situated that they cannot see the danger, is dangerous and reckless. A rail- road company is bound in the discharge of its duties, to its employees, to guard against it by proper rules and regula- tions. A rule prohibiting the running of a train without an engine to control it, upon a track occupied by standing cars when repairers are at work on them, or forbidding the kicking of ears on a track thus occupied, the court cannot say, as matter of law, is reasonable and practicable to pro- tect ear repairers while at work. A jury may so find as matter of fact. The intimation is that in respect to the protection of car repairers, the rule should provide against the kicking of cars even when an engine is attached.*^ Several trains ruiming on schedule time of first. It was held that the railroad company had faUed in promulgating sufficient rules and in giving proper orders to meet the emergency stated, where four trains were running upon the schedule time of the first, resulting in a collision. The dispatcher was charged with the master's duty as to the orders to be given." Dispensing with actual notice that track is occupied. A rule of a railroad company requiring an engineer to act on the supposition, that another train would be met or that the main track would be occupied at the station dispenses with actual notice that the track is so occupied.'* Protection of car repairers. Where workmen are engaged in repairing cars rules to protect them should be clear and definite, and reasonably sufficient to afford protection. It is incumbent upon the company to use due care in protecting them from danger." 66. Dowd V. N. Y., 0. & W. R. 68. Whalen v. Michigan Cent. Co., 170 N. Y. 459, 63 N. E. 541. R. Co., 114 Mich. 512, 72 N. W. 67. McCarthy v. Pennsyl- 323. vania R. Co., 189 N. Y. 170, 81 69. Railway Co. v. Watts, 63 N. B. 770. Tex. 549. The only suggestion made §325 EuxlES. 801 Requiring conductors to look after switches. A rule requiring conductors to look after switches when used by their engines, was held sufficient, and the com- pany not liable for the death of one conductor who was as to the insufficiency of rules es- tablished for the protection of car repairers, was that they did not in terms prohibit co-employees from E loving other oars upon one from T^hich a red flag was shown, and i.nder which the plaintiff was. One of the rules provided that "men repairing cars must see for them- selves that they are protected by a flag when under and between cars." Another that "red flag by day, red light or fire on the track by night indicates danger, on perceiving such the engineer shall immediately stop his train before passing such signal." Another, "AU employees of the company are expected and required in all cases to exercise the greatest care and watchfulness to prevent injury or damage to person or property. Vigilance and watchfulness insure safety. In all cases of doubt adopt the safe course." Another "every employee must acquaint himself with these rules and directions and keep a copy of them in his posses- sion." It was said: "The rule would not be any more effective to prevent th? accident or more likely to insure observance had it been followed by a provision, in express words, forbidding the employee from moving cars against or in the direction of another car from which a flag was exhibited." Corcoran v. Delaware L. & W. R. Co., 126 N. Y. 673, 27 N. E. 1022. Where the rules provided for a display of flags 1 M. & S.— 51 on cars that were being repaired on a repair track, and that it was the duty of the switchman or fireman on the engine to call out to the men on the repair track whenevar the engine came in, and a carpenter •at work between cars who was not shown to have know i of the rules, was injured by cars being pushed against those upon which he was at work, and the switchman did give the warning, though the plaintiff did not hear it, it was said that it is a duty resting upon railroad com- panies for the protection of their employees to adopt reasonable rules and regulations or methods for conducting their business, such as will, if propjrly pursued and carried into effect, afford a reasonable de- gree of safety to its employees, while engaged in their duties, against extraordmary or necessary dangers. The duty does not extend to insuring the safety of employees, but only to the exercise of reason- able care and foresight in so pro- viding rules and regulations. It was held that whether or not this was done, was a question for the jury to ascertain from the evidence. International & G. N. R. Co. v. Hall, 78 Tex. 657, 15 S. W. 108. It was held that a rule which merely stated, "blue is a signal to be used by car inspectors," was not suffi- ciently definite. C. B. & Q. R. Co. V. McGraw, 22 Colo. 363, 45 Pao. 383. 802 Masteb and Sebvant. <§ 326 killed through the neglect of another, who had knowledge of the rule, to properly adjust a switch.™ Flying switches. It was held that a rule as foUows: "Coach switching — Conductors must see that brakemen with good and suffi- cient' brakes are on any moving oars, and they are cau- tioned as to making flying switches (switch rope being furnished). Avoid switching even if it increases your work," was advisory only, and imposes caution, but clearly does not forbid making flying switches.''^ § 326. Promulgation. It is not sufficient to merely adopt rules but they must also be promulgated so to give notice to the employees of the existence thereof or at least give them an opportun- ity to ascertain their terms. Thus, the rules of a railroad company stand to it? em- ployees as laws for the regulation of their conduct, and all such laws ought to be promulgated in some reasonable and practicable way. It is held by some coiu'ts that if rules are printed or written, each employee should either be furnished with a copy or informed where to apply for them, or at least where he naight call and read the rules or hear them read. Of course actual knowledge otherwise acquired would suffice.''' 70. Davis v. Staten Island either be fumished with a eopy or Rapid TraQsit R. Co., 1 App. Div. advised as to where he can read or 178, 37 N. Y. Supp. 157. hear them read, and which leaves 71. Youll V. Sioux City & Pa- out of consideration all other means ciflc R. Co., 66 Iowa, 346, 23 N. W. of acquiring knowledge, should be 736. denied. It was said, where rules are 72. Carroll v. East Tenn., V. & prescribed or regulations adopted G. R. Co., 82 Ga. 452, 10 S. B. 163, for the government of employees in 6 L. R. A. 214; Brunswick & W. and about the discharge of their R. Co. V. Clem, 80 Ga. 534, 7 S. E. duties, it is the duty of the employer 84. It was said, however, by the to give notice of their existence and same court in a subsequent case, so to promulgate them as to afford that a request to charge in effect to the employees a reasonable- op- that if the rules be written or portimity of ascertaining their printed, each employee should terms. Knowledge, either express §327 EtJIiES. 803 § 327. Knowledge by employee. There is a direct conflict in the authorities as to the effect upon an employee of rules generally established, where he has not actual knowledge thereof. Some of the courts hold that an employee is not bound by a rule unless he has knowledge thereof;^' and that the adoption and pro- mulgation by the employer of a rule for the guidance of the employee does not charge the latter with knowledge thereof, so as to impute negligence to him. with respect to conduct in violation of it, but that to such end it is essen- tial that knowledge of its existence and provisions must be brought home to him;^^ and that an employee of a cor- or implied, ■without reference to the manner by which it is imparted, binds the employee to compliance. If by oral tradition, he has knowl- edge derived from his co-employees of the existence and terms of such rules, he is bound to conform his conduct thereto, whether he have either a copy of the rules or has had an opportunity to read them or hear them read. Port Royal & W. C. R. Co. V. Davis, 95 Ga. 292, 22 S. E. 833. It is said with reference to the promulgation of rules, that the reasonable rule in such case hath this extent and no more; that the employer must first choose his agents with due care for their pos- session of skill and competency, and that then he must use his best means of communication according to prescribed general rules and regulations devised from the best experience in such business, and if among those means is the service of a fellow-servant, competent for his place, his possible carelessness is a risk of the employment, that his fellows take when entering into the service. Slater v. Jewett, 85 N. Y. 61, 39 Am. Rep. 627. The particular fact in the case was the failure of the conductor who had received a special order to commu- nicate it to the engineer. In another case, it was held that oral declara- tions as to the use of the automatic cord controlling brakes on passen- ger trains, was sufficient and it was not required that they should be embraced in the printed rules. Whalen v. Michigan Cent. R. Co., 114 Mich. 512, 72 N.W. 323. It has also been held that whether rules and regulations have been estab- hshed is a question for the jury. Gulf C. & S. F. R. Co. V. Finley, 11 Tex. Civ. App. 64, 32 S. W. 51. 73. Louisville E. & St. L., C. R. Co. V. Utz, 133 Ind. 265, 32 N. E. 881; Louisville, etc., R. Co. v. Berkey, 136 Ind. 181, 35 N. E. 3; Central R. & B. Co. v. Ryles, 84 Ga. 420, 11 S. E. 499; Louisville & N. R. Co. V. Hawkins, 92 Ala. 241, 9 So. 271; LouisviUe & N. R. Co. V. Perry, 87 Ala. 392, 6 So. 40. 74. Louisville & N. R. Co. v. Hawkins, 92 Ala. 241, 9 So. 271; Louisville & N. R. Co. v. Perry, 87 Ala. 392, 6 So. 40. 804 Master and Servant. §327 poration, though obhgated in \mting by the terms of his employment to study the rules governing employees, care- fxilly keep posted and obey orders, is not bound by rules of which he is ignorant and which have never been pro- mulgated to him by the company.'^ 75. Carroll v. East Tenn., V. & G. R. Co., 82 Ga. 452, 10 S. E. 163, 6 L. R. A. 214. The non-ob- servance by an employee of rules of which it does not appear he had notice is not a violation of duty. This was said in reference to the act of a head brakemani riding upon the engine, where the rules prohibited brakemen from being in the cars while in motion, and re- quired them at such times to be at their post of duty. Copies of the rules were furnished to conductors and engineers, but not to brake- men. It had, however, been the custom for head brakemen to ride upon the engine, and this was known to officers and agents of the company. It was held that the question whether such brakaman, who was injured in a coUision caused by defendant's negligence, was rightfully upon the engine at the time, and in being there was acting in the line of his duty, was properly submitted to the jury. Sprong v. Boston & Albany R. Co., 58 N. Y. 56. Where coupling by hand was strictly prohibited, and employees were required to furnish themselves with a stick necessary for the pur- pose, by a rule of the defendant, and an employee who was not ob- serving the rule when injured tes- tified that he had no notice of the rule, and there was no evidence that he had, and the uncontradicted evidence was to the eSect that the usual method of coupling cars by the employees of the company, in so far as the plaintiff knew, was by hand, with the knowledge and ac- quiescence of his superior, and with- out the suggestion of any other rule or practice, though it did appear that rules were printed on time cards, and were given to the heads of departments and local agents to be distributed to the several employees under their charge, it was held that the employee was not bound by such rule, which as to him had not been properly pubUshed. Fay v. Minneapolis & St. Louis R. Co., 30 Minn. 231, 15 N. W. 241. An employee in the defendant's paint shop was injured while painting cars on the side track in the defendant's yard by other cars being shoved against one upon which he was working. The evi- dence was emphatic that the plaintiff had never been apprised of the regulation requiring the use of flags or signals; that he had no knowledge that the company had provided rules, nor had any orders with reference to them been delivered to him or to his co- employees in the paint shop. It was held that the court properly refused to charge that if the plain- tiff at the time of his injury was at work in an extra dangerous place and he knew it, and knew that no warning signals or flags were out, and he demanded none, then he assumed the risk of the danger and cannot recover, and that if defend- §327 EULBS. 805 Duty to acquaint himself with rules. Other courts hold that it is the duty of employees to acquaint themselves with the rules and regulations of their emplojmaent and to obey them, and in case of iajury to any such employee, he will not be permitted to excuse himself by saying he did not know the niles unless it appears he had not sufficient means of acquiring such information and that his failure to know them was not from any want of ordinary care on his part;^* and that a a railroad employee who has access to the rules which relate to his employment is chargeable with notice." It was stated by the Texas court that as a general rule it is not the duty of the employer to instruct a serv- ant as to the rules of service or warn him of the dangers incident thereto unless information is asked. ''^ It was held that the contract of employment of a street railway motorman is subject to the implied condition that he will study and apply rules prescribed by the company ant company had rules requiring men to use flags for such piurposes, and plaintiff failed to use such flags or call for them, then he assumed the risk of his dangerous position and cannot recover. It was said that it was the duty of the defendant to establish regulations which would have advised its servants who were engaged in moving cars on to this track where plaintiff "was at work of his posi- tion, and it should also have pro- vided adequate means of warning him of the approach of danger. It cannot be said that such regula- tions are estabUshed until the com- pany has caused them to be pub- lished or to be brought to the atten- tion of the persons to be affected by them. They certainly cannot bind without promulgation — a rail- road company cannot avail itself of a rule which it has not properly published and which it has habitu- ally neglected to enforce. Inter- national & G. N. R. Co. V. Hinzie, 82 Tex. 623, 18 8. W. 681. Rules are not admissible in evidence, it was said, where the evidence shows that the injured employee was never in possession of printed rules and had knowledge of them. Louis- ville, etc., R. Co. V. Berkey, 136 Ind. 181, 35 N. E. 3. 76. Fordyce v. Briney, 58 Ark. 206, 24 S. W. 250; Texas & Pac. R. Co. V. Moore, 8 Tex. Civ. App. 289, 27 S. W. 962; Forbes v. Boone VaUey C. & R. Co., 113 Iowa, 94, 84 N. W. 970. 77. Alabama G. S. R. Co. v. CarroU, 28 C. C. A. 207, 84 Fed. 772. 78. Missouri Pac. R. Co. v. CaUbreath, 66 Tex. 526, 1 S. W. 622. 806 Masteb and Seevant, § 327 and furnished to him. In the absence of any sufficient excuse for his ignorance, he is subjected to the same re- sponsibility as if he actually knew them." Burden on employee to show want of knowledge. It was held that where the evidence shows an injury to a servant to have oooxirred through his violation of an established rule of the master, the burden is upon the servant to show that he had no actual knowledge of the rule, and that its existence had been so concealed or de- fectively published that he could not by the exercise of ordinary care have acquired such knowledge; and where a servant had in writing acknowledged reading the rule, it was error to submit the question of his knowledge to tha jury, but knowledge on his part should be assumed by the court.'" It was said a servant may be negligent in not knowing the method of operating cars in a mine, since he is bound to use ordinary care to inform himseH of the rules and customs of a mine.*^ It is a matter of common knowledge, that railroad com- panies, even to the minutest detail, make rules for the government of their employees, and regulations of the service. If by oversight or otherwise an employee has not been furnished with a copy or otherwise made ac- quainted with them, it is his own fault. He knows that rules have been made and generally promulgated. He knows where a copy can be obtained, and also knows that he is expected and required to acquaint himself therewith. It would therefore seem to be reasonable to hold that when printed general rules have been made and generally pro- mulgated, that an employee should not be heard to say that he was ignorant of the rule, any more than he should 79. Foley v. Boston & N. St. 81. Forbes v. Boone Valley R. Co., 198 Mass. 532, 84 N. E. Coal & R. Co., 113 Iowa, 94, 84 846. N. W. 970. 80. Texas & Paeiflo R. Co. v. Moore, 8 Tex. Civ. App. 289, 27 S. W. 962. § 327 EuLEs. 807 be heard to say that he was ignorant of the existence of an obvious defect in appliances or premises. As to special rales, which are not thus promulgated, or oral directions, in cases where the servant is not protected by general rules, or those with which he is acquainted it may be dif- ferent. In such case, where the fellow-servant rule does not prevail as above stated, it is reasonable that he should in some manner have been informed. Presumption of knowledge. It will be presumed, in the absence of proof to the con- trary, that a master has notified a servant of the rales by which such employee is to be governed.*^ And also that an employee of a railroad company knows the rales governing his duties.*' It was held, however, by another court, that there is no such presumption, in the absence of direct proof that an experienced engineer had knowledge of a rale providing that a signal imperfectly displayed or the absence of a sig- nal at a place where a signal is usually shown, must be regarded as a danger signal, and the fact reported to the superinteadent. * * A brakeman was held bound by a rule of the company forbidding brakemen from going between the rails to couple or uncouple cars, where from long service he had an opportunity to learn such rules. *^ Knowledge of printed book of rules to which employee has access. Where a book of rales was kept in the conductor's desk in one of the cars, and plaintiff had seen it a great many times and knew it was in use, and the trainmen had access to it, and he had read the book or some portion of it, and knew that the duties of brakemen were printed in it, 82. Pilkinton v. Gulf C. & 84. Chicago, B. & Q. R. Co. v. S. F. R. Co., 70 Tex. 226, 7 S. W. Oyster, 58 Neb. 1, 78 N. W. 359. 805. 85. LouisviUe & N. R. Co. v. 83. Galveston H. & S. A. R. Co. Bowcoek, 21 Ky. L. Rep. 383, V. Gormley, 91 Tex. S93, 43 S. W. 51 S. W. 580. 877, 66 Am. St. Rep. 894. 808 Masteb and Servant. § 327 it was held that the plaintiff, who was a brakeman, was negligent in failing to obey the rules, though the railroad company had not furnished him. with a book of rules nor required him to read it.*' Where employee long in service and rules conspicu- ously posted. Where a rule prohibiting employees from going between moving cars has been in existence for a long period of time, and the plaintiff had been for several years in de- fendant's employ, and the rule was generally circulated among defendant's servants, and was posted in conspicu- ous places about depots and other places, it is admissible in evidence, though it is not shown that plaintiff had actual knowledge of it." And where a rule is conspicuously posted in the cars upon a train upon which an employee frequently rides, he must be presumed to have knowledge of such rule.** A f ecfcion hand was directed to walk back and forth be- tween two points on defendant's tiack. While doing fo he mounted a passing engine, which dafendant's rules forbade. These rules had been in force for several years, although they had not been formally promulgated by the receiver after his appointment. They were printed, and copies of them had been formally furnished to section foremen, the one over the deceased included. The de- ceased had been in the employ of the company as a section hand for many months prior to the accident. It was said the presumption is that he was acquainted with the rule. At all events, the fair inference from the record is that he had a reasonable opportunity to become acquainted with it, which, for the purpose of the present case, was equiva- lent to actual knowledge.*' 86. La Croy v. N. Y., L. E. & 88. Pennsylvania R. Co. v. W. R. Co., 132 N. Y. 570, 30 N. E. Langdon, 92 Pa. St. 21, 37 Am. 391. Rep. 651. 87. Alcorn v. C. & A. R. Co., 89. Shenandoah Valley R. Co. 108 Mo. 81, 18 S. W. 188. v. Lucado's Admx., 86 Va. 390, 10 S. E. 422. § 327 Exiles. 809 From bulletins posted. Where bulletins were properly posted requiring trains to be kept under complete control at designated points where contractors were at work, at one or more places where it was the engineer's duty imder the rules of the company to have seen and read them, it was held that this was equivalent to actual notice, though the engineer injured testified he did not remember seeing the bulletin notices.'" Knowledge generally but not of particular rule. Where a brakeman was injured through the negligence of an engineer, while attempting to couple cars by hand while they were in motion, and he testified that he knew that it was against the rules to undertake to perform such act without the use of a stick, and nothing appeared to show any necessity to couple or uncouple them at the time, it was held a verdict should be directed for the defendant, though the particular rule may never have been read to the plaintiff and he may have been ignorant of it." Constructive knowledge as dependent on length of time in service. Where a rule was copied into an order book where all special instructions were kept, and such book was kept in the office of the train master, where the trainmen and yardmen had access to it, and was also posted in the round house, machine shops, and in the middle yard in the yard master's office there, and the business of the yardmen and switchmen called them into that office every day more or less, it was held that it could not be said, as matter of law, as charged by the trial court, that a switch- man was charged with constructive knowledge, in the abeence of evidence as to the length of time such switch- man had been there employed, and that such posting ex- 90. Williams v. Norfolk & W. 91. Richmond & D. R. Co. v R. Co., 89 Va. 165, 15 S. E. 522; Thomason, 99 Ala. 471, 12 So. 273- Norfolk & W. R. Co. V. Williams, 89 Va. 165, 15 S. E. 522. 810 Masteb and Servant. § 327 isted during the time of his employment, but that under the circumstances the question of his knowledge was for the jury.'^ Where a brakeman was injm-ed in attempting to couple cars by hand, which injury would not have happened had he used a stick as required by the rules, and it ap- peared he had acted as brakeman for two months, and had seen coupling done both ways, but he testified he did not know of the existence of the rule, and it also appeared that sticks adapted for such use were kept on the train, it was held that whether he was chargeable with knowledge was a proper question for the jury." Presumption from acts or conduct of other employees. As tending to show knowledge on the part of a brakeman of the existence and terms of a rule requiring couplings to be made with the use of a stick, it was held competent to show that he had seen others use the stick in couphng, but it is not competent to show that other employees frequently referred to the rules ia dischargiug their duties.'^ Presumption not applied where employee without actual knowledge. Although two rules in a book containiag five hundred rtdes required the constant presence of brakemen at the brakes on top of a traia, who, in accordance with usage and with the conductor's sanction, remains in the caboose a part of the time during inclement weather, and who was injured while ascending to his post of duty in obedience to an order of the conductor, he was held not to have been negligent, where there was no evidence that he was ever required to learn such rides or did in fact know of them.'^ 92. Francis v. Kansas City, St. 94. Memphis & Charleston R. J. & C. B. R. Co., 110 Mo. 387, Co. v. Askew, 90 Ala. 5, 7 So. 823. 19 S. W. 935. 95. Georgia Pacific R. Co. v. 93. Propst V. Georgia Pacific Davis, 92 Ala. 300, 9 So. 252, 25 R. Co., 83 Ala. 518, 3 So. 764; Am. St. Rep. 47. Georgia Pacific R. Co. v. Propst, 83 Ala. 518, 3 So. 764. § 328 Exiles. 811 Employee not furnished rules upon request. Where an inexperienced -workman was assisting a car repairer in repairing a oar upon a track, and he was injured by other cars being shoved upon him., and it appeared the rules required that hand brakes should be set on passenger coaches or the wheels blocked; that reMance should not be placed on the air brakes; that the plaintiff had not been furnished with a copy of such rides, though he had asked for them three separate times, and he did not know of the one ia question or of the latent danger from reUance upon the air brakes, it was held that. Tinder these conditions, contributory negligence on the part of the plaintiff did not appear.'^ § 328. Duty of master to enforce. It is stated that a railroad company does not discharge its whole duty to the public and its servants by merely framing and publishing proper rules for the conduct of its business and the guidance and control of its servants, but is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe it is being conducted in pursuance of such rules.*' It is the duty of the master, where the business requires the establishment of rules, to see that they are enforced, and a waiver of such as have been habitually violated with his knowledge or acquiescence will be inferred.'* However, the master is not an insurer of the observance of rules, although obhged to use reasonable care to enforce them.'* 96. Gulf C. & S. F. R. Co. v. 98. Louisville & N. R. Co. v. Kizziah, 4 Tex. Civ. App. 356, R«agan, 96 Tenn. 128, 33 S. W. 22 S. W. 110, 26 S. W. 242. 1050; Knickerbocker Ice Co. v. 97. WMttaker V. D. & H. C. R. Finn, 25 C. C. A. 579, 80 Fed. Co., 126 N. Y. 544, 27 N. E. 1042. 483; Chicago & N. W. R. Co. v. See also Chapman v. Erie R. Co., Taylor, 69 lU. 461, 18 Am. Hep. 55 N. Y. 579; Bauleo v. N. Y. 626. & H. R. R. R. Co., 59 N. Y. 356, 99. Rutledge v. Missouri Pao. 17 Am. Rep. 325; Wabash R. Co. R. Co., 123 Mo. 121, 24 S. W. 1053, V. McDaniels, 107 U. S. 454, 27 L. 27 S. W. 327. Ed. 605, 2 Sup. Ct. Rep. 932. 812 Masteb and Servant. § 329 § 329. Waiver by habitual or customary violations. The doctrine of "waiver, an element of estoppel, at quite an early date, seems to have been brought into this par- ticular branch of the subject and applied by some courts though not approved by others. That in many instances it has been carried to the extreme must be conceded. We have seen that among the duties of the master is that of establishing reasonable rules for the protection of his employees in certain cases. Rules, where established, are generally in printed books and furnished employees with a strict requirement that they shall fully acquaint them- selves with their contents. It would naturally follow, applsdng the general principles which underlie the doctrine of waiver, that an intent to abrogate or supersede a rule thus promulgated should appear in some formal manner, as by an order duly promulgated or the promulgation of a rule superseding the one first established. However, the doctrine has been firmly established in many jurisdic- tions that a rule may be considered by a jury as abrogated, from the mere fact of faUure to enter a protest, where not observed by servants to the knowledge of the master. The reason stated is that if the master permits a course of conduct inconsistent with its rules, it ought not to be allowed to hold its employees to the very letter of its rules, to shield itself from liability for what it has per- mitted, i"" 100. Hunn v. Ry. Co., 78 Mich. 121, 24 S. W. 1053, 27 S. W. 327. 513, 44 N. W. 502, 7 L. R. A. Where a rule requiring a blue light 600; Eastman v. L. S. & M. S. R. to be placed on the side of ears or Co., 101 Mich. 597, 60 N. W. 309. trains, about which workmen were See also Spauldiug v. Chicago, St. at work, had been habitually vio- P. & Kan. City R. Co., 98 Iowa, lated, it was a question for the 205, 67 N. W. 227; Hampton v. C. jury whether the rule had not been & A. R. Co., 236 111. 249, 86 N. E. abandoned. Brady v. New York, 243; St. Louis Nat. Stock Yards v. N. H. & H. R. Co., 184 Mass. Godfrey, 198 111. 288, 65 N. E. 90; 225, 68 N. E. 227. The habitual St. Louis, I. M. & S. R. Co. v. disregard of a rule prohibiting the Dupree, 84 Ark. 377, 105 S. W. employment of minors justified 878, 120 Am. St. Rep. 74; Rutledge the inference that the enforcement V. Missouri Pao. R. Co., 123 Mo. of the rule has been waived. §329 EuLES. 813 It will be presumed that a rule relating to a particular service -which has been established, ■vvras required by the nature of the emplosmaent for the protection of employees and also that the employee knows not only that such rule and the course of conduct required or method prohibited was so established for his protection, but that it was nec- essaiy for his protection. Yet it is held, as stated, that the employee may disregard it absolutely because others habitually do so, and not be responsible for injury that may result, but may cast the responsibility upon the mas- ter because he did not interpose and prevent him from incurring the danger. Is it not more reasonable to hold that incxirring such danger under such circimistances, is a voluntary act on his part, after being advised of the dan- Tazoo & M. v. R. Co. v. Cobb, 94 Miss. 561, 48 So. 522. It was said a switchman who is injured while violating a positive rule which for- bids jumping on switch engines while they are in motion, by stand- ing in the middle of the track and stepping onto the foot board, cannot recover against the com- pany. Such rule is not to be deemed abrogated by the fact that employees violated it, where the evidence showed that it was enforced by the company, and the rule itself recited that yardmen were in the habit of jumping on engines in the manner thus pro- hibited, and that its express pur- pose was to put an end to the prac- tice. Francis v. Kansas City, St. J. & C. B. R. Co., 110 Mo. 387, 19 S. W. 935. Upon a subsequent ap- peal it was held that whether such switchman was guilty of contribu- tory negligence was a question for the jury, where it appeared that the rule was habitually violated with the knowledge of the company and that such switchman was igno- rant of the existence of the rule. Francis v. Kansas City, St. J. & C. B. R. Co., 127 Mo. 658, 28 S. W. 842, 30 S. W. 129. The doctrine of waiver or abrogation of a rule is not so recognized by some of the courts. Thus it was held in Alabama that since a rule forbid- ding employees from going be- tween cars in motion to un- couple them is clear and explicit, evidence that for many years it has been the custom of brakemen to go between the ears and make un- coupUngs while they are in motion is inadmissible to show that the rule, not having been insisted upon, is not binding on an employee in- jured by its non-observance. Memphis & C. R. Co. v. Graham, 94 Ala. 545, 10 So. 283. It was held, however, by the same court, that a verbal order to the effect that hostlers should not move switch engines being proved, evidence is admissible to show that they were in the habit of doing so, as bearing ujwn the company's acquiescence in the breach of the rule. LouisviUe & 814 Master and Servant. §329 ger, and the mere fact that others or himself habitually in- cTir it, having the same knowledge, ought not to prevail as an excuse. In other words, exposing himself to a known danger not required, is not on his part to be con- sidered as negligence, while on the other hand it is negh- gence on the part of the master to permit him to do so with- out protest. The doctrine is fundamental that where two methods of performing a service are open to a serv- ant, the one perilous and the other not, that if he know- ingly adopt the perilous and is thereby injured, he has no cause for complaint against his employer. The question of rules in such a case is only important as charging the servant with knowledge of the danger. It will appear that some courts are in accord with this reasoning and decline to follow those courts which do not adopt it. N. R. Co. V. Rioliardson, 100 Ala. 232, 14 So. 209. And also that evi- dence as to its being the custom for switchman, upon finding it im- possible to couple with a stick, to go between the cars for that pur- pose, having first signalled the engineer to stop, was held admissi- ble to show that defendant did not, under all circumstances, insist up- on employees coupling with a stick. Hissong V. Richmond & D. R. Co., 91 Ala. 514, 8 So. 776; LouisviUe & N. R. Co. V. Watson, 90 Ala. 68, 8 So. 249. Upon a subsequent appeal, it was held, however, that where the plaintiff entered into an express stipulation to abide by a rule prohibiting brakemen from going between cars to couple them, evidence is inadmissible to show that there was a custom on the defendant's road for brakemen, when they found it impossible to make a coupUng with a stick from the outside, to go in betwesn the cars for that purpose, after having first signaled the engineer to stop the train. Richmond & D. R. Co. V. Hissong, 97 Ala. 187, 13 So. 209. Where the rear brakeman upon a train was injured while ascending the ladder of the caboose or rear car at a call for brakes by contact with a projectiQg shed, and it appeared that a rule in force, among other things, stated that the post of the rear brakeman is on the last car of the train, which he must not leave except to protect the train, and another rule prohibited them from leaving their brakes while the train was in motion, or taking any other position on the traia than that assigned them by the conductor, and it was attempted to be shown that it was customary for the rear brakeman to ride in- side the rear oar, it was held that it was proper to exclude such evidence. It was said there does not appear to be any ambiguity in the terms of these rules, such as would justify the admissibility of extrinsic evidence to show to what state of case they are applicable or § 329 EuLEs, 815 It has been held, however, that though a rule in terms prohibited an employee from going between moving cars to imcouple them, yet it is competent to show what was usually and habitually done in this respect by other employees whUe operating trains, as showing an abroga- tion of the rule.^"^ Yet it was held by the Michigan court, one of those supporting the foregoing determination, that the act of an employee in going into a dangerous place contrary to the rides of his employer, would not be excused because it was customary for other employees to go into the same place, as for instance, a brakeman riding on the brake- beam of a tender. ^"^ The act or conduct in the one case was equally as dangerous as the other and it would seem the former was evidently of such a dangerous character that no duty should devolve upon a railroad company to prohibit it. Occasional violation of rules. Occasional violations of a rule of a raOroad company are not sufficient to prove the rule has been abandoned how they should be applied. They v. New York P. & N. R. Co., 75 are intended as a meaas to be Md. 297, 23 Atl. 607, 32 Am. St. enforced for the protection of the Rep. 391. train, the pubho and all those en- 101. Eastman v. L. S. & M. S. gaged in conducting the movement R. Co., 101 Mich. 597, 60 N. W. 309 ; of the train, and therefore no lax or Spaulding v. Chicago, St. P. & variable construction of such rules Kan. City R. Co., 98 Iowa, 205, 67 should be allowed. The plaintiff, N. W. 227; Hampton v. C. & A. when he entered the service of tha R. Co. 236 111. 249, 86 N. E. 243; defendant and accepted the book of St. Louis Nat. Stock Yards v. rules prescribing his duties and the Godfrey, 198 111.288, 65 N. E. 90; manner of performing them, obli- St. Louis I. M. & S. R. Co. v. gated himself to observe and con- Dupree, 84 Ark. 377, 105 S. W. form to such rules according to the 878, 120 Am. St. Rep. 74; Burch v. plain terms thereof, and not accord- Southern Pac. R. Co., 104 Pac. iag to what may have been a eus- (Nev.) 225. tomary practice among other em- 102. Benage v. L. S. & M. S. ployees regardless of the express R. Co., 102 Mich. 72, 60 N. W. requirements of the rules. Gordy 286, 102 Mich. 79, 62 N. W. 1029. 816 Masteb and Sebvant. §329 or revoked, where there is nothing to show that the su- perior officers of the company knew of puch violation."' A custom that will justify an employee in disregarding a rule of a railroad company, must have prevailed for so long a time that the company was boimd to know it, and hence presimied to have acquiesced in its violation, or it was otherwise known and acquiesced in by the com- pany."* It must be shown that the custom was so vmiversal and notorious that the company may have been presumed to have known of and ratified it. Mere proof of a custom not so universal as to charge the master with notice of it, of brakemen to go between moving cars to uncouple them is not sufficient where such act is prohibited by the rule."« It is said, howaver, that it makes no difference that other employees frequently or customarily disregarded a ride, unless the company, with knowledge of their prac- tice, acquiesced in it in a way to sanction it or practi- cally to abrogate the rule; nothing less woidd relieve the servant from abiding by his uniform orders."' 103. Louisville & N. R. Co. v. second appeal, the evidence was Scanlon, 22 Ky. L. Rep. 1400, 60 sufficient to justify the jury in flnd- S. W. 643; Kopf v. Monroe Stone ing that the rule had been thus Co., 133 Mich. 286, 95 N. W. 72. abrogated. Fluhrer v. Lake Shore 104. Huggins v. Southern R. & Mich. S. R. Co., 124 Mich. 482, Co., 148 Ala. 163, 41 So. 856. 83 N. W. 149. 105. Nichols V. Chicago & West 106. Sloan v. Georgia Pacific Mich. R. Co., 125 Mich. 394, 84 R. Co., 86 Ga. 15, 12 S. E. 179. N. W. 470; Fluhrer v. Lake Shore See also Rome & C. Const. Co. v. & M. S. R. Co., 121 Mich. 212, 80 Dempsey, 86 Ga. 499. 12 S. E. 882; N. W. 23. The Fluhrer case, supra, Norfolk & W. R. Co. v. Briggs, was sent back on the single question 14 S. E. (Va.) 753; Alabama G. S. that the evidence did not show that R. Co. v. Roach, 110 Ala. 266, 20 the rule forbidding the uncoupling So. 132. The contention on the of moving cars had been so univers- part of the plaintiff, an engineer ally and notoriously violated that in the employ of the defendant, it was a fair inference that the com- was, among other things, that he pany sanctioned and approved of was injured by reason of the neglect its violation and hence abrogated of the company to maintain a the rule. It would seem upon this proper signal light at the crossing. §329 Exiles. 817 Thus evidence that drillers in a stone quarry, contrary to the orders of the master, occasionally loaded holes for blasts, is insufficient to charge tha master with knowl- edge of such practice."^ Evidence which shows a violation of rules and regula- tions as to running time between stations on only two occasions, one of them being the occasion of the accident, is not sufficient to show an abrogation of such rules and regulations.^"^ Specific instructions in addition to rules. Where a brakeman, in addition to the requirement of a rule forbidding jumping on the pilots of engines, wa? given specific and repeated instructions not to do so, and he was kiUed, it was held that no recovery couJd be had though the rule had been generally disobeyed, since in view of the specific instructions given him no question of abiogation of rules could arise. "^ It appeared that he received signals to go ahead with his train; that there was a switch lamp which worked automatically displaying a greea or blue light when the switch was properly closed, and a red light when the switch was open; that on the night in question the lamp was out; that a rule of the company, with which the plaintiff was fr mil- iar, stated that "a signal imper- fectly displayed, or the absence of e. signal at a place where a signal is usually shown, must be regarded as a danger signal and the fact reported to the master of transpor- tation." The defendants relied upon this rule and contanded that its violation by the engineer was such negUgenoe as would prevent a recovery. There was evidence tending to show that it was a common, every night occorrence, to find this light extinguished, and 1 M. & S.— 52 this was true of signal Ughts along the hne, and that the plaintiff was accustomed to run in disregard of such lights, and that such was the custom. The evidence, however, was conflicting as to the failure to display lights and the custom of others running in disregard of them. Knowledge of such custom was denied by the defendants. It was held proper to refuse an instruction in regard to the violation of the rule that omitted all reference to the question of the company's acqui- escence therein. Chicago & W. I. R. Co. V. Plynn, 154 lU. 448, 40 N. B. 332. 107. Kopf V. Monroe Stone Co., 133 Mich. 286, 95 N. W. 72. 108. Konold v. Rio Grande W. R. Co., 21 Utah, 379, 60 Pac. 1021, 81 Am. St. Rep. 693. 109. Crawford v. Southern R. Co., 150 N. C. 619, 64 S. E. 589. 818 Masteb and Seevant. §329 Knowledge of customary disobedience. Knowledge of the master of the violation of a rule may be inferred from the notoriety of the habitual custom of the employees to disregard it."" Distinction between rules for protection of servant and those for company's own end. The distinction made by the Texas court, that rules made by a railway company for its own ends, m^y be 110. St. Louis, I. M. & S. R. Co.' V. Caraway, 77 Ark. 405, 91 S. W. 749. It matters not how or when the knowledge of such dis- obedience comes to the officers of the defendant. It need not appear that the officers of the defendant who are charged with the enforce- ment of the rules had actual knowl- edge of the custom of the defend- ant's employees as to violating the rules; such notoriety or knowledge may be inferred from the circum- stances; it may be impUed from the notoriety of the custom, whereby they are chargeable with notice (citing Horan v. Railway Co., 89 Iowa, 328, 56 N. W. 507; Lowe v. Railway Co., 89 Iowa, 420, 56 N. W. 519.) Furthermore, the evidence is imdisputed that the employees of the road could not obey this rule and do the work in- cident to their positions. Such being the case, it would seem that the rule must have been 3nactad to serve some purposa other than the protection of the property of the defendant or the proper conduct of its business, or the safety or pro- tection of its employees. A rule which, if obeyed, would prevent the defendant from properly carry- ing on its business, does not com- mend itself to the court as baing made in good faith and in per- formance of any legitimate purpose. Strong V. la. Cent. R. Co., 94 Iowa. 380, 62 N. W. 799. Ic was subse- quently held by the same court that a rule prohibiting the coupling and uncoupUng of cars while in motion is reasonable, and if 3n- forced is calculated to protect the Umbs and lives of those whose duty it is to perform the always danger- ous work of coupling or uncoupUng cars. That it was competent for the parties to waive any part of it. That such waiver may come from constant violation of the rule acqui- esced in by the defendant com- pany. That such a usage or cus- tom may be shown when the defendant has, through its proper officers, knowledge of its violation and their conduct shows acquies- cence in such violation. That actual knowledge of such custom on the part of the officers of the defendant who are charged with the enforcement of its rules need not appear. That such notice or knowledge may be inferred from circumstances — ^it may be implied from the notoriety of the custom. Lowe V. Chicago, St. P., M. & O. R. Co., 89 Iowa, 420, 56 N. W. 519. See Union Pacific R. Co. v. Spring- steen, 41 Kan. 724, 21 Pac. 774; White V. Louisville N. O. & T. R. Co., 72 Miss. 12, 16 So. 248. § 329 EuLBs. 819 considered as abandoned where permitted to be violated without objection, Taut rules naade solely for the safety of servants will not be deemed abandoned unless the company insists on their disregard in older to hasten the work, ""^ does not seem to have been generally lecog- nizsd. It mugt be admitted that it is not only reasonable but just. The servant is informed by the existence of the rule that the master has made an adequate provision for his safety. The servant is presumed to know, for such is the law, that where both are on an equal footing, the mas- ter is under no greater obhgation to care for the safety of the servant than the servant is to look out for his own safety. They have equal knowledge. The servant has at his option two methods of doing his work, the one perilous and the other reasonably safe, considering the hazards of the employment. How can it be said, if he adopts the more perilous, and is thereby injured, that it is aught else than his own fault. Customary violations prior to receipt of rules by employee. An engineer, eight days prior to the accident which caused his injuries, acknowledged in writing the receipt of a book of rules in which was included a rule requiring engineers to keep their train under control when approach- ing a certain station. It was claimed that it had been the custom among engineers to disregard such rule and therefore the company had waived the same. It was held that the fact that such custom prevailed prior to the engineer receipting for the rules was insufficient to show a waiver of observance of the rule by the engineer at the time of the accident. ^^* Length of time rule violated. In determining whether a rule has been waived, includ- ing the question whether the master has, or ought to have, knowledge of the repeated violations thereof, it may 111. Texas & N. 0. R. Co. v. Mothershed, 110 Ala. 143, 20 Conway, 44 Tex. Civ. App. 68, So. 67. See also Gordy v. New 98 S. W. 1070. York, P. & N. R. Co., 75 Md. 297, 112. Louisville & N. R. Co. v. 23 Atl. 607, 32 Am. St. Rep. 391. 820 Masteb and Sebvant. §329 be material to consider the length of time the rule has been thus violated."' A rule directing engineers not to permit any persons except the fireman and others necessarily there in the discharge of their duty to ride on the engine, was held abrogated, to the extent of permitting yard employees to so ride thereon in going to or returning from their work, where such has been the custom for fifteen years."* 113. The Texas court of ap- peals held that the abrogation of a rule may be presumed where it is frequently and openly violated for such a length of time as that the company could by the use of ordi- nary care have ascertained its non-observance. Where a rule is not observed by employees for a long length of time and no attempt is made by the company to enforce it, it becomes of no force or effect, a,nd the mere fact of non-observ- ance thereof will not be considered negligence in case of injury. This was held where an engineer, in violation of a rule as to keeping his train under control between cer- tain points, was injured by running into a tender which was partly on the main track, and there was evidence that the rule had not been respected for six months. Texas & Pac. R. Co. v. Leighty, 88 Tex. 604, 32 S. W. 515. It was held by another court that knowl- edge on the part of the master of the habitual disregard of a rule direct- ing brakemen not to uncouple cars while in motion may be imputed when the custom has existed for a considerable length of time, and a waiver of its enforcement inferred, though the employees who disre- gard it have knowledge of the rule and appreciate the dangers incident to the act. Fish v. Illinois Central R. Co., 96 Iowa, 702, 65 N. W. 995. It seems to have been held also, that the mere fact of frequent or habitual violation of a rule is suf&cient to present to a jury the question of the waiver or abroga- tion of such rule. The particular rule in question was that forbidding the running of trains backward at a rate of speed exceeding ten miles per hour. There was evidence that often the speed of trains thus ope- rated exceeded that limit. The question whether the rule has been abrogated was held for the jury. Hampton v. Chicago & A. R. Co., 236 111. 249, 86 N. E. 243. Not- withstanding an employer has post- ed a notice upon his elevator as follows: "All persons riding on this elevator do so at their own risk," it still was a question for the jury whether at the time of the accident it remained in force or had become a dead letter. It had been posted a long time and the elevator notwithstanding was used contin- uously by all the workmen, includ- ing the superintendent. It was said "long continued practice may have the efiect to supersede or show a waiver." McNee v. Co- burn Trolley Track Co., 170 Mass. 283, 49 N. E. 437. 114. Feneff v. Boston & M. R. R. Co., 196 Mass. 575, 82 N. E. 705. § 329 EuLES, 821 So where an engineer placed his engine upon the main track of the road contrary to its prescribed rules, and it api)eared the rule had been habitually violated by engi- neers for a period of at least one year, it was held that the question of defendant's negligence in not enforcing its rule was for the jury, and a finding by them of neghgence was warranted."^ Knowledge by agent or servant as chargeable to master. An important question is that of when the master is chargeable with knowledge by the knowledge of servants in his employ. Evidence that employees of a railroad company were accustomed to act in violation of a rule is not admissible to establish a waiver of the rule, unless it be shown that a knowledge of the custom was known to the officers charged with the enforcement of the rule, or the company otherwise chargeable with constructive knowl- edge."^ Where a rule regulating the conduct of brakemen con- stituted conductors as the master's representative to enforce the rule, his knowledge of its habitual violation is imputed to the master."^ So a rule of a railroad comi)any prohibiting brakemen from going between moving cars to uncouple them, having been violated by such an employee, it was proper to show 115. Whittaker v. D. & H. C. perintending officer of the corpora- Co., 126 N. Y. 544, 27 N. E. 1042. tion would relieve a subordinate 116. It was held that the mere from responsibility for his own knowledge by the conductor of a conduct; in other words, the wrong train of the violation by a brakeman of one employee is excused by a on the train of a rule of the company like wrong of another. Atchison, T. requiring him to be on top of cars & S. F. R. Co. v. Reesman, 9 C. C. in order to give signals to the engi- A. 20, 60 Fed. 370, 19 U. S. App. neer does not exonerate the brake- 596, 23 L. R. A. 768. See also man from the charge of contribu- Ohio & Mississippi R. Co. v. Col- tory negligence for injuries recsived larn, 73 Ind. 261, 38 Am. Rep. by him in consequence of his viola- 134. tion of such rules. It was said that 117. St. Louis, I. M. & S. R. Co. if the rule were otherwise, then the v. Caraway, 77 Ark. 405, 91 S. W. supineness and negligence of a su- 749. 822 Mastee and Servant. § 329 an habitual disregard of such rule to the knowledge of those whose> duty it was to report violations thereof, that the jury might determine as to whether the rule had been waived."* Likewise, the violation of a known rule by a workman as to the means to be used in eoupUng cars, where acqui- esced in by the division superintendent, does not bar re- covery for an injury caused by the negligence of the company."' It wiU be observed, however, that the rule above stated, ia effect that knowledge of a custom in violation of a rule, in order to bind the master as a waiver, must be that of officers in charge of its enforcement, is not approved to its fuU extent by some courts, but that such knowledge on the part of an employee occupying a superior position with commanding authority may be sufficient. ^^^ Effect of signing paper that violations of rule not acquiesced in. The mere disregard by an employee of a railroad com- pany of a rule relating to the coupling of cars, when, with knowledge and acquiescence of the division superintendent such employee and others have constantly and without exception disregarded it, was held to be sufficient to justify 118. Ckvelaad, C, C. & St. rate an engine when the engineer L. R. Co. V. Baker, 33 C. C. A. was not upon it. Kjiowledge of such 468, 91 Fed. 224. usage need not be shown by direct 119. Northern Pacific R. Co. v. evidence that the officers saw it Nickels, 1 C. C. A. 625, 50 Fed. 718. practiced, but it may be inferred 120. Where it appeared there from circumstances, as from noto- was an estabUshed usage on the riety, long standing, and that it was part of engineers known and acqui- known to the company's employees, esced in by the superior officers, to The facts were that an engineer allow firemen to make short moves was killed by being run over by a when tne engineer was not on the hand car in charge of section men engine but near enough to give while standing on the main track directions, it was held that the giving directions to his fireman to engineer, under the particular cir- pull the train ahead on the side cumstaoces of the particular case, track. Barry v. Hannibal & St. should not bs held guilty of con- J. R. Co., 98 Mo. 62, 11 S. W. 308, tributory negligence for violating a 14 Am. St. Rep. 610. rule not to permit firemen to ope- ^ 330 EuLES. 823 a finding that the companyhad waived a compliance with the rule, even though it appeared that the employee had signed a paper which set out the rule which contained a notice that all the rules of the company would be violated at the risk of the employees, and that aU such violations, whether habitual or otherwise, were not assented to or acquiesced in by the company. ^''^ § 330. Effect of failure to observe by servant injured. Reasonable rules for the government of employees, when brought to the knowledge of the latter, who there- after continue in the master's service, and an impHed undertaking to obey them, when not waived, enter into the contract of service.^ ^^ The bare fact that a position into which an employee is ordered for the discharge of his duty is a dangerous one, win not justify his disobedience, siace he was employed for that purpose, and its discharge may be necessary to save the lives of others. And a failure to- do his duty or dis- obedience imder such circumstances might be negligence on his part, rendering the employer liable to others injured thereby. To assume a position of danger is not necessarily negligence, but is often a clear duty, and an employee in such case, even if injured, would have no right of action, since he was employed for such position of danger and paid for assuming it.^^' 121. Northern Pao. R. Co. v. provided, or that obedience to the Nickels, 1 C. C. A. 625, 60 Fed. 718. rule was not practicable under the 122. Thus, a rule of a railroad circumstances of the particular company which requires that cars ease. Pennsylvania R. Co. v. shall be coupled by the use of coup- Whitcomb, 111 Ind. 212, 12 N. E. ling sticks, brought to the knowl- 380; Cincinnati I. St. L., etc., R. eige of one employed as brakeman, Co. v. Lang, 118 Ind. 579, 21 N. E. and assented to by him, constitute a 317. part of his contract of service, and 123. This was said where one of for injury received by him in en- a section crew was injured in the deavoring to make a coupling by attempt to move a hand car from hand the company is not liable, un- the track in front of an approaching less it be shown that the act could train, acting under the orders of not safely have been performed the section foreman. Frandsen v. even by the use of the appliance C. R. I. & P. R. Co., 36 Iowa, 372. 824 Master and Servant. §330 An employee is bound to obey all reasonable rules. Disobedience of such rules, if it contributes directly to his injury, conclusively charges him with negligence, barring recovery. Hence a conductor was chargeable as matter of law, with contiibutory negligence in failing to comply with the rules of the company as to the taking of freight trains through one of the tunnels of the particular road.^^* This rule has been applied in a multitude of oases, ^** including violations of rules as to the performance of 124. Nordquist v. Great North- ern R. Co., 89 Minn. 485, 95 N. W. 322. Where, however, an engineer was injured by a rear end collision between two freight trains, and the defense was contributory negligence in not complying with a rvde requir- ing all trains to approach all sta- tions and water tanks under con- trol, it was held that if the engineer used due care and under the cir- cumstances of the case did all that it was reasonably possible for him to do, consistent with other rules and duties, if any, imposed upon him, to comply with the rule re- quiring him to have his train under control, he was not guilty of con- tributory negligence, but otherwise he would be. Maehren v. Great Northern R. Co., 98 Minn. 375, 107 N. W. 951. 125. Adjustment op switches. Where the rul33 provided that en- gineers were responsible for the adjustment of switches, it was held that the negligence of the engineer whose fireman did not properly adjust a switch by reason of which the engineer was killed, was a question for the jury. Galveston H. & S. A. R. Co. V. Nicholson, 57 S. W. (Tex. Civ. App.) 693. Calling engine to assist. Whether a conductor who was injured was justified in caUing an engine to assist his train in ascend- ing a grade upon which his train was stalled, in violation of a rule of the company, was held a ques- tion for the jury. Galveston H. & S. A. R. Co. V. Adams, 94 Tex. 100, 58 S. W. 831. Cleaning machine in motion. Where an employee was injiired while cleaning a machine in motion, in violation of a rule of the com- pany which forbade such act, it was held such was contributory negligence on her part which would prevent a recovery. Shanny v. Androscoggin MiUs, 66 Me. 420. Requiring trains to approach time table stations under con- trol. Though a rule required trains to approach time table sta- tions under control, expecting to find the main track occupied, the ei^ineer of a second section of a train approaching such a station, was held not chargeable with knowledge that the forward section was there, when but for an acci- dent unknown to him it would have passed on before his arrival. Louis- ville & N. R. Co. V. Mothershed, 121 Ala. 650, 26 So. 10. §330 EULES. 825 acts in connection with signals/ ^^ rules as to the move- 126. Where there was a rule which provided that "brakemea and switchmen, in coupling or un- coupling cars, must not assume that signals given to the engineer or firemen wiU be obeyed, when obedi- ence to a signal thus given is essen- tial to the safety of the brakeman or switchman in the performance of a duty, and that he must know that the signal is understood and obeyed before he places himself in danger reljdng upon such obedience, and that when he acts without such knowledge he assumes all risk of danger arising from misunder- standing or disobedience of sig- nals," and it appeared that a brakeman, without knowing that his signal to the engineer was under- stood, went between a ear and a moving train to make a coupling and was injured, it was held that his acting in violation of the rule would prevent a recovery. Deeds V. C. R. I. & P. R. Co., 74 Iowa, 154, 37 N. W. 124. Whore the rules provided that a signal imper- fectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a danger signal, and it was claimed by an engineer who was injiured in collision with cars which had been blown from a side upon the main track, that the signal could not be seen on account of the fog, it was held that his negligence was the same whether he could or could not have seen it; that he ought to have remembered the rule and acted accordingly. Norfolk & W. R. Co. V. Williams, 89 Va. 165, 15 S. E. 522. And where a brakeman went between an approaching train and a car to make a coupling, without waiting for his signal to stop, in violation of rules, it was held he was guilty of contributory negli- gence. Western R. of Alabama V. WiUiamson, 114 Ala. 131, 21 So. 827. See also Southern R. Co. v. Arnold, 114 Ala. 183, 21 So. 954; Sanders v. McGhee, 114 Ala. 373, 21 So. 1006. A brakeman in the defendant's employ was killed in a collision between his train and a section of another upon the main track. It appeared that such latter train was composed of several sec- tions, and that the last section but one displayed the proper signals, which the train hands on the train upon which the deceased was em- ployed failed to observe, and the conductor thereof, evidently pre- suming that the track was clear, ordered the train from the siding, and had proceeded but a short dis- tance when the collision occurred between his train and the last sec- tion of the other train. Several rules were in evidence, among others one which provided that all signals must be strictly in accordance with the rules, and trainmen and engine- men must keep a constant lookout for signals. It was held that the result was occasioned by the viola- tion of this rule, and that it would be paying a premium on negligence to permit a recovery in such a case. That the question as to whether the conductor represented the master, and was also negligent, was imma- terial, — the duty was imposed upon all alike. Ward's Admr. v. Chesa- peake & Ohio R. Co., 39 W. Va. 46, 19 S. E. 389. 826 Masteb and Sebvant, §330 ment or operation of a car or train, ^''^ rules as to the speed 127. Order to wait for ap- proaching TRAINS. Where an en- gineer who was killed by ooUision with another train, having orders to remain upon a siding until three sections of a train had passed, and he pulled on to the main track after but two sections had passed and ooUided with the third section, he was held guilty of contributory negligence as matter of law. Gal- veston H. & S. A. R. Co. V. Brown, 95 Tex. 2, 63 S. W. 305. Running street cars. It was held that failure to observe a rule by a motorman in respect to run- ning his ear, where he ran into another car, was not excused on the ground that the brake was defective aiud would not work, and where at the outset an inspector tested it, and at first attempt it would not work, but did on a subsequent attempt, when he gave an assur- ance to the motorman that it would work all right. After the inspector left the car the brake continued to act badly. It was said the motor- man was not justified in running the car as if nothing was the trouble with the brake. Foley v. Boston & N. St. R. Co., 198 Mass. 532, 84 N. E. 846. Prohibiting leaving station WITHIN five minutes AFTER PRE- CEDING TRAIN. An engineer in- iiu:ed in a rear end collision while following another train, was per- mitted to recover, though it ai)- peared he violated the rule pro- hibiting his leaving a station within five minutes after a preceding pas- senger train. It seems to have been held negligence to run the trains so close together. Louisville & N. R. Co. v. Hiltner, 22 Ky. L. Rep. 1141, 60 S. W. 2. Keeping train under control APPROACHING STATION. It WaS said in reference to a rule which required an engineer to keep his train under control on approaching stations, that the rule was just and reasonable. Being promulgated, and no unforeseen emergencies aris- ing which would render obedience to it in a given case impracticable or disastrous, all discretion as to the necessity of obedience was exhausted. The rule was manda- tory upon the engineer. He had no right to inquire whether the sur- roundings seemed to render obedi- ence necessary. It was of no mo- ment, therefore, whether his diso- bedience was expressly wilful or inadvertent, or resulted from a reasonable belief in his mind that in a given instance obedience was unnecessary. Louisville & N. R. Co. V. Mothershed, 110 Ala. 143, 20 So. 67. Shifting train on grade with- out ENGINE attached. Where the conductor of a freight train, con- trary to the rules of the company, allowed cars to be shifted and run down grade without an engine attached, and thereafter, while he was between such cars, a brakeman without objection from such con- ductor caused another oar to be run down the same way, which by reason of defective brakes could not be controlled, and struck the first car so run down, causing injury to such conductor, it was held that the conductor could not recover; §330 EULES. 827 of the train,^^^ rules prohibiting brakemen and others from going between cars to uncouple them while in mo- tion, ^^^ rules prohibiting boarding a ear while in mo- that his violation of the rule was the cause of his injury. Richmond & D. R. Co. V. Dudley, 90 Va. 304, 18 S. E. 274. Order meeting trains ope- rated IN SECTIONS. An engineer who had received orders to pass a certain train at a designated place, supposing a train he met at such point, and being so informed by another employee; was the train referred to in the order, proceeded with his train and collided with the train referred to in the order. There was a positive order to which his attention had recently been called, to the effect that he must know that the train met is the one specified in the order. It was held that his violation of the rule was not excused, and therefore he could not recover. Fritz v. Missouri, K. & T. R. Co., 30 S. W. (Tex. App.) 85. Keeping train under control AT MEETING POINT. A Hile re- quired that trains should pass the place of the accident under fuU control; another rule required the side tracking of a train which at the time stood on the main track. The head light upon the latter train had gone out and a lantern was substi- tuted. A train approached within two hundred feet of the latter before discovering it, and was running about seven miles per hour, such discovery being too late to avoid a collision. It was held that the accident was caused by a failure to observe rules, not by a failure to establish rules. Simpson V. Central Vt. R. Co., 5 App. Div. 614, 39N. Y. Supp. 464. Running slow APPROAcmNG SWITCH. Where a conductor was injured by reason of the violation of a rule which required engineers to "slow up" before reaching a switch, and also required the conductor to signal the engineer for such purpose, which he failed to do, it was held his violation of the rule would pre- vent a recovery. Louisville & N. R. Co. V. Mothershed, 97 Ala. 261, 12 So. 714. 128. An engineer running his engine in a yard in excess of the speed required by the rules, it was held, was guilty of contributory neg- ligence. Brown v. Northern Pao. R. Co., 44 Wash. 1, 86 Pao. 1053. 129. It was held that a brake- man who was injured while violat- ing a known rule of the company prohibiting him from going be- tween the cars while in motion to uncouple them, could not recover of the company for such injury, in the absence of all evidence show- ing that the company knowingly permitted the violation of its rule. Schaub V. H. & St. J. R. Co., 106 Mo. 74, 16 S. W. 924; Western R. Co. V. Williamson, 114 Ala. 131, 21 So. 827; Southern R. Co. v. Arnold, 114 Ala. 183, 21 So. 954; Sanders v. McGhee, 114 Ala. 373, 21 So. 1006. Yet where an emer- gency required it, it was held not neghgence for a brakeman to go between cars to adjust the coup- ling, though such act was forbidden by rules. Brown v. Southern R. 828 Masteb and Servant. §330 Co., 82 S. C. 528, 64 S. E. 522. Wh.ere a brakeman was injured by being thrown from a moving train wMe uncoupling the engine and tender, and it appeared he was not required to attend to such uncoup- ling whUe the train was in motion, but that the rules of the company forbade the attempt, it was held there was such evidence of con- tributory negligence as to justify a compulsory nonsuit. Lockwood V. C. & N. W. R. Co., 55 Wis. 50, 12 N. W. 401. Where a rule de- clared that "entering between cars while in motion to uncouple them, and all such inprudences, are dan- gerous and in violation of the rules of the company," it was held that an employee who attempted to uncouple moving cars and was injured by reason of the draw head being forced back, owing to a de- fect, could not recover, upon the ground of his violation of the rule. Johnson v. Chesapeake & O. R. Co. 36 W. Va. 73, 14 S. E. 432; Darra- cott V. Chesapeake & O. R. Co., 83 Va. 288, 2 S. E. 511, 6 Am. St. Rep. 266. Where a rule of a railroad com- pany forbids a brakeman to go be- tween the cars in making a coup- ling, the facts that the conductor in charge tells a brakeman to hurry up, and that the conductor in charge has previously seen him go between the cars to make couplings, do not amount to an express order to go between the cars so as to relieve the brakeman from an imputation of negUgence in so doing. The evidence was substantially differ- ent on a former appeal (111 N. C. 482, 16 S. E. 698, 18 L. R. A. 845, 32 Am. St. Rep. 814) as there it appeared the conductor had told him, when he could not couple with a stick, to go in and couple with his hands. It now appears that such direction was, by a former conductor, made several months earlier. Such direction does not justify tbe brakeman in doing so under the circumstances. Mason V. Richmond & D. R. Co., 114 N. C. 718, 19 S. E. 362. Where a brakeman attempted to couple the engine, attached to a rear section of a train, to the caboose of the freight section, while both sections were moving and was injured by slipping from the pilot of the engine upon which he was standing, and the rules forbade coupling ears while in motion, it was held he could not recover, even though he at- tempted the act at the direction of the engineer. East Tenn., V. & G. R. Co. V. Smith, 89 Tenn. 114, 14 S. W. 1077. Where it was not a brakeman's duty to get down on the side of the car to uncouple the cars while the train was moving, and there was a strict rule prohibit- ing uncouplings to be made on moving trains, it was held there could be no recovery for the death of a brakeman caused by his being brushed off from the side of a mov- ing car by a car standing on the side track while attempting to get down to uncouple cars. Schaub v. Hannibal & St. J. R. Co., 106 Mo. 74, 16 S. W. 924. A rule of a rail- road company prohibiting switch- men from going between cars to couple or uncouple them cannot be invoked to defeat the action of a switchman for injuries sustained when coupling cars while standing on a running board placed on the tender for switchmen to ride on. Richmond & D. R. Co. v. Jones, 92 Ala. 218, 9 So. 276. A brakeman §330 EtTLBS. 829 tion/'" rules reqtiiring servants to occupy certain positions at certain times or probibitiiig them from oeeupyiag certain was injured while ridiog on the pilot of an engine and about to couple the engine to cars on a spur track. The pin was not properly placed, being in the draw head of the flat car, so that the coupling could not be made without it first being withdrawn; and the evidence was that it was dangerous to attempt to make the coupling under such circumstances. The rules re- quired the plaintiff to be very par- ticular to notice the speed at which cars are moving, when coupling, and if moving at a dangerous rate no attempt must be made to cou- ple by going between the ears, and further declared that it is danger- ous to uncouple or attempt to place links or pins or draw bars while cars are in motion, and is strictly forbidden. A judgment for plain- tiff was reversed, but the question of his contributory negligence was not determined though discussed. Baltzer v. Chicago, M. & N. R. Co., 83 Wis. 459, 53 N. W. 885. Upon a second appeal, the evidence being substantially the same, no reference is made as to the effect of the plaintiff's violation of a known rule, but rather the whole question is made to turn upon whether his con- duct was proper in the manner in which he attempted to do the pro- hibited act. The negligence charged being that of the engineer in not checking the speed of his engine, it was held that the question of the plaintiff's negligence was for the jury. Baltzer v. Chicago, M. & N. R. Co., 89 Wis. 257, 60 N. W. 716. The contract of employment of a brakeman acknowledging re- ceipt of a copy of the rules and con- tairung an agreement that he would abide by them, precludes recovery for injuries received while attempt- ing to uncouple moving cars in direct violation of one of the rules, unless he shows that the rule had been virtually abrogated by the company by sanctioning its cus- tomary violation by employees. Fluhrer v. Lake Shore & M. S. R. Co., 121 Mich. 212, 80 N. W. 23. The rule of the defendant railway company forbade going between moving cars to couple or uncouple them, which rule the plaintiff brake- man had knowledge of and had agreed to obey. The brakeman finding a defect in the automatic coupler, went between the cars to uncouple them and was injured, but it was held that notwithstanding the general rule that the disobedi- ence of a rule is, as matter of law, contributory negligence, yet in view of the statute which prohibits the making of any contract by which its terms are waived, that the question of contributory negli- gence was for the jury. Turrittin v. Chicago St. P., M. & O. R. Co., 95 Minn. 408, 104 N. W. 225. 130. Where an employee at- tempted to board a ear while in motion, which act was prohibited by the rules of the company, it was held that he could not recover. Gulf W. T. & P. R. Co. V. Ryan, 69 Tex. 665, 7 S. W. 83. Where a rule prohibited all persons from standing on top of covered cars while passing through truss bridges. 830 Masteb and Sebvant. §330 positions at such times, ^" rules prohibittag flyiag switches and another forbade all persons from boarding engines and oars while in motion, and under no cir- cumstances to stand on the track and board engines and cars while approaching them, and a con- ductor of a freight train, who had stopped his train on one end of such bridge, and as the train moved on climbed to the top of a box car, being prevented from going back to the caboose by obstructions along the track, and was forced from the car by a scaffold suspended over the bridge, and there was evidence to the effect that it was customary and sometimes it be- came the duty of freight conductors to stand on top of the cars when assisting in breaking and signaling, it was held that his violation of the rule was such negligence as would prevent a recovery, that it did not appear he was upon the car in per- forming any duty which might require his presence there; that it was his duty and within his power to have had the caboose stopped before it reached him. San Antonio & A. P. R. Co. V. WaUace, 76 Tex. 636, 13 S. W. 565. Where an engi- neer of a yard engine left his engine on a dark night to observe what sig- nals were being given, and while his engine was backing attempted to mount it, and in so doing caught his foot in some wires stretched along the track, the location of which he knew, and he also was charged with knowledge of a rule of the defendant forbidding the jumping on or off trains or engines when in motion, it was held that the rule was reasonable, and that the plaintiff could not recover, as his violation of the rule was negli- gence contributing to his injury. That it did not appear that his attention was necessarily diverted by the character of his duties, or that there was at the time any such emergency as might call for his mounting the engine while in mo- tion. Overby v. Chesapeake & Ohio R. Co., 37 W. Va. 524, 16 S. E. 813. 131. Where a brakeman, in violation of a rule which required him, when approaching a station, to be on the top of the train to attend to the brakes, was injured while riding in the cab of the en- gine near a station at the intersec- tion of a side track, caused by the derailment of the train, it was held that as matter of law, he was guilty of contributory negligence and should have been nonsuited. Conners v. Burlington C. R. & N. R. Co., 74 Iowa, 383, 37 N. W. 966. Where an employee of a railroad company was sent on a wrecking train to assist in moving debris of a wrecked train from the track, and, instead of taking his seat in the car, he, in viola- tion of a published rule of long standing, entered the locomotive and took a seat with the fire- man just in front of the latter, where he remained until a collision took place with a freight train and he was killed, it was held that he was guilty of such negUgence in tak- ing an extra hazardous place as to bar any right of action by his per- sonal representatives, notwith- standing the negligence of the serv- §330 ExJIiES. 831 ant in charge of the train. Abend V. T. H. & I. R. Co., Ill lU. 202, 63 Am. Rep. 616. See also Chesa- peake & O. R. Co. V. Barnes, 132 Ky. 728, 117 S. W. 261. Where an employee upon a train was required by the rules to take the place of the rear brakeman when the latter was required to flag a train, with- out waiting for specific orders, and he failed to do so, being asleep at the time, and was injured by a col- lision, it was held that his own failure to comply with the duties required of him by the train. rules directly contributed to his injury, which prevented a recovery. East- bum V. Norfolk & W. R. Co., 34 W. Va. 681, 12 S. E. 819. A rule of a railway company forbade trainmen to work on the side of cars or trains where there were buildings or other projecting structures. It then instructed them, "Always work on that side where there are no buildings or structures, ajid in getting on or off or riding on the side of the moving ear, do so only at places where there are no ob- structions along side of the track, such as buildings, structures, lum- ber piled, etc., that will make such work hazardous." Such rule ab- solutely forbade trainmen to work or ride on the side of trains where there were any structures along side of the track, not merely where there were such structures as would make such work hazardous in the judgment of the employee. CoUins v. Mineral Point & N. R. Co., 136 Wis. 421, 117 N. W. 1014. A gate- man who left his place of duty after closing his gates and went upon the track and was MUed by an engine, knowing its presence, was guilty of contributory negligence. A rule cautioned gatemen not to rely upon signals and perform no work except guarding the crossing. Tirrell v. New York, N. H. & H. R. Co., 180 Mass. 490, 62 N. E. 745. No recovery can be had against a railroad company by an employee for injuries sustained by collision caused by an open switch, of a switch engine with a stationary engine, where such employee was riding, in known violation of the rules, upon a switch board attached to the front and rear of the switch engine placed there for the use of the yardmen only. Lemasters v. Southern Pacific Co., 131 Cal. 105, 63 Pac. 128. Where the rules re- quired that employees should be on the top of cars, and one such was injured, while standing on the ladder at the side of the car, by contact with a coal chute, located close to the track, it was held he could not recover. Central Trust Co. V. Bast Tenn. W. & G. R. Co.. 69 Fed. 353. An employee riding upon a locomotive in violation of the rules of the company was held guilty of contributory negli- gence. The fact that such was the custom of employees known to offi- cers of the company, and that at the time of his injury he was so do- ing with the knowledge of the conductor and engineer, did not excuse him if he was not there in the performance of some duty or in obedience to the command of some one whose order he was bound to obey. Chattanooga S. R. Co. v. Myers, 112 Ga. 237, 37 S. E. 439. 832 Master and Seevan"t. §330 absolutely or except when necessary,^''' rules for the pro- tection of car repairers,^'' etc. 132. In the abseace of ciroum- stance of excuse, an employee with knowledge of a rule prohibiting flying switches, who is iojured while engaged in disobedience thereof, will be held to such contributory negligence as precludes recovery. PilMnton v. Gulf C. & S. F. R. Co., 70 Tex. 226, 7 S. W. 805. And where the rule prohibited the mak- ing of running switches, except where absolutely necessary, it ap- pUed as well to the kicking of cars into switches, and hence whire a brakeman injured by getting his ■ foot caught in an unblocked frog while running in front of tha cars that were being kicked into a switch, to arrange the couplings, it was held he was guilty of such contributory negUgenee as pre- vented a recovery. Sheets v. C. & I. C. R. Co., 139 Ind. 682, 39 N. B. 154. See also Shorter v. Southern R. Co., 121 Ala. 158, 25 So. 853. Such violation of a rule, however, was held to have been excusable where a brakeman was injured while working under the direction of an engineer and it appeared the man- ner in which the car was placed up- on the side track was the usual and customary way of performing that service. Union Pacific R. Co. v. Springsteen, 41 Kan. 724, 21 Pac. 774. And also where a conductor was injured, it appearing that this was the only practicable way of placing cars on the particular switch, and that it had been so habitually resorted to as to raise the presumption that the company was aware of and approved it. Alexander v. Raiboad Co., 83 Ky. 589. 133. Rules are usually estab- lished which provide that car re- pairers shall exercise certain pre- cautions to protect themselves by means of displajong certain signals, which are for the purpose of notify- ing other employees connected with the operation of cars, of their posi- tion of danger. A neglect of this duty on the part of a repairer, which he owes to himself, ordi- narily is negligence as matter of law. Illinois Cent. R. Co. v. Winslow, 56 111. App. 462. Such duty was not excused on the ground that the company had never before had a train on the repair track, where the car repairer was repairing, and he knew that the caboose under which he was was attached to a train on that track. Fordycev. Briney, 58 Ark. 206, 24 S. W. 250. Nor was it excused where such a workman attempted a mere tem- porary work of placing a nut on a bolt, where flags were at hand, which he might have used if he had asked for them, and another work- man who had worked with him was near by and could have been stationed so as to warn him if so requested. If he considered the work he was called upon to do of such a character in the first instance that he could not look out for him- self, it was his duty to ask for the use of the flags, and in case of re- fusal to decline to work until he was properly protected in some manner. Jacoby v. Chicago & N. W. R. Co., 137 Wis. 131, 118 N. W. §330 EULES. 833 Rules regulating the speed of trains, especially at dangerous places, are to be commended. Not only do they tend to the protection of the Hves and limbs of pas- sengers, and the property of the company, but also to the protection of the persons of employees, and a strict observ- ance of the rule is demanded, on the ground of public policy. An employee, if injured, as a result of his disobedi- ence of such a rule, ought not and ordinarily wiU not be heard to complain. ^^^ 635. It has been held, however, that such a rule was not violated and the plaintiff's act did not contribute to his injury, where an employee whUe at work upon a car situate upon the house track in de- fendant's yard, which was used for loading and unloading cars and for repairs which took only a few min- utes, and the rules required such repairer to place flags to indicate he was at work, but which rule was not enforced as to such track, was injured by another car being struck by a switch engine and forced against the one under which he was at work, causing him injury, and it appeared that a defect in the engine, which prevented the engi- neer from controUing it promptly, was the cause of the moving of such car, and there was evidence that the speed would have been the same even if flags had been dis- placed. Texas & N. 0. R. Co. v. Wynne, 22 S. W. (Tex. App.) 1064. And also where a car repairer was injured while repairing a oar on the track, by other employees pushing a car against the one upon which he was at work, the former not having posted a signal as required by the rules, he was permitted to recover against the master on the ground that the foreman had told him when 1 M. & S.— 53 he went to work, that the first of a number of men went to work on the repair track should post flags and he relied upon such custom, without ascertaining whether the signal had been so posted. Ander- son V. Great Northern R. Co., 102 Mmn. 355, 113 N. W. 913. 134. Where an engineer ran his train on a sharp curve at a high rate of speed for such a curve and against express orders to him requiring him to go slow at such place, and he was injured by the engine and some of the cars leaving the track, it was held there could be no recovery even though the lowness of the outer rail was the cause of the accident. Robinson v. West Vir- ginia & P. R. Co., 40 W. Va. 583, 21 S. E. 727. Where a locomotive engineer in the employ of the de- fendant was injured in consequence of his engine being thrown from the track, the neghgence charged against the defendant being the allowing of the rails of its track to become worn, spUntered and defective, the defendant contending that at the time he was injured he was driv- ing his engine at a high and danger- ous rate of speed in violation of the defendant's rule, the time schedule showing that at the place of injury the rate of speed was twenty-four 834 Master and Seevant. §330 The use of coupling sticks has been discarded and rules in respect to their use have become obsolete since the universal adoption of the automatic coupling system. The question of a violation of such rule was perhaps more frequent before the courts than with respect to any other rule. The decisions of the courts in respect thereto are only important now upon general propositions in- volved, and hence such only as have such a general bearing are included herein. Generally it has been held that violation of such rule was such contributory negligence as precluded recovery for injuries sustained where such violation was the proximate cause. ^'^ Where such a rule was established, it became the duty of the company, as a part of the contract on its part, to furnish ears that might be coupled with a stick with rea- sonable safety.^'* miles an hour, and a rule required enginers to reduce the rate of speed when the track was in bad order, and the evidence as to the rate of speed at the time was, on the part of some of the witnesses, as high as forty-two miles an hour, the plain- tiff admitting it was as high as thirty miles an hour, it was held that in no view of the evidence was the plaintiff entitled to recover. A remanding order was refused al- though the verdict on which the judgment was rendered was the last of three concurring verdicts in favor of the plaintiff. Illinois Cent. R. Co. v. Patterson, 93 lU. 290. A motorman running his oar at usual speed at a point where there was a defective rail joint, in violation of a direction or rule to run slow at that point, having knowledge of such sunken joint, was held guUty of such contribu- tory negUgence as precluded re- covery where injtired by derailment of his car. Lanen v. Boston & N. St. R. Co., 200 Mass. 337, 86 N. E. 776. And the same where a rule or order was in force to run slow at a particular point, which meant eight or ten miles an hour, at which speed the accident would not have happened, or no serious results. Lonzer v. Lehigh Valley R. Co., 196 Pa. St. 610, 46 Atl. 937. 135. Wolsey v. L. S. & M. S. R. Co., 33 Ohio St. 227; Louisville, etc., R. Co. V. Ward, 10 C. C. A. 166, 61 Fed. 927; Richmond & D. R. Co. V. Free, 97 Ala. 231, 12 So. 294; Pryor v. Louisville & N. R. Co., 90 Ala. 32, 8 So. 55; Rich- mond & D. R. Co. V. Pannill, 89 Va. 552, 16 S. E. 748; Louisville & N. R. Co. V. Bryant, 15 Ky. L. Rep. 181, 22 S. W. 606. 136. Hissong v. Richmond & D. R. Co., 91 Ala. 514, 8 So. 776; Richmond & D. R. Co. v. Hissong, 97 Ala. 187, 13 So. 209; LouisviUe & N. R. Co. V. Watson, 90 Ala. 68, 8 So. 249. § 330 EtJLEs. 835 It seems to have been held where coupling in such manner covild not be made safely, on account of defective drawbars, an employee was justified in making the attempt with his hands. The company also should furnish the proper sticks although it was held where upon application for them by an employee, he was unable to procure them, it was a question for the jury whether he was negligent in attempt- ing to couple by hand.^'^ A neglect to observe such a rule was held not to bar a recovery although upon receiving the stick a brakeman acknowledged in writing such receipt and promised in writing to so use it, where he was told it was a mere fonn and it appeared also that in order to use it it was necessary to carry it about his person in a belt and that it caused more danger of falling, while running on top of cars, than was compensated by its security against injury in making coupHngs.^'* The violation of such a mle was not a defense where it appeared that, if complied with, it necessitated going between the ears to the same extent and that injury would have followed in the same manner. ^'^ Nor where the employee was injured through defects in the cars, and woidd have been injiu-ed even if the rule had been observed. ^^^ Where the rules prohibited brakemen from coupling or uncoupling cars except with a stick and from going be- tween the cars, xmder any circumstances, for the purpose of coupling, uncoupling or adjusting pins, etc., when an engine is attached to such cars or train, it was held that the rule had no apphcation to a brakeman who was 137. Hannigan v. Lehigh & 139. Reed v. Burlington C. R. H. R. Co., 91 Hun 300, 36 N. Y. «& N. R. Co., 72 Iowa, 166, 33 N. W. Supp. 293; Huggins v. Southern 451, 2 Am. St. Rep. 243. R. Co., 159 Ala. 189, 49 So. 299. 140. White v. LouisviUe N. O. 138. LouisviUe & N. R. Co. v. & T. R. Co., 72 Miss. 12, 16 So. 248. Foley, 94 Ky. 220, 21 8. W. 866; See also Bonner v. Hiekey, 23 S. W. (Tex. App.) 85. 836 Master and Servant. § 330 injured while attempting to remove a pin while standing on the foot board of a tender which was moving slowly backwards, to be coupled on cars, on the ground that he was neither coupling or uncoupling cars nor was the engine attached to any cars or train. It was said the conditions existing here were overlooked in framing the rule.i" Rule requiring examination of appliances. To what extent the master may impose the duty of inspection of appliances upon employees, and thus avoid responsibility generally for the manner in which such duty is performed, has been considered. That such duty to some extent may be imposed upon employees, and the master excused from responsibility to the employee, who is injured through his negligent performance of such duty, is conceded. Rules of a railroad company that employees are to see that the machinery and tools are in proper con- dition, and if not in such condition to see that they are put so before using them, and that trainmen handling cars are to see if they are safe to be handled, and not handle them imless they are safe, are reasonable and proper; and brakemen are bound to make such examination of the machinery and cars they use as is consistent with the opportunities afforded while attending to other duties, and if injury arises to a servant from his failure in this respect he is guilty of contributory negligence. ^*^ Thus, an engineer who fails to test the air brakes, as required by the rules, where a collision ensues which might have been avoided had he known the air had been cut off the three rear cars, is guilty of contributory negli- gence.^*' This rule of law has been often applied so as to bar a recovery by a servant.^** 141. Richmond & D. R. Co. v. 143. Merritt v. Great Northern MitoheU, 92 Ga. 77, 18 S. E. 290. R. Co., 81 Minn. 496, 84 N. W. 321. 142. Louisville & N. R. Co. v. 144. A rule which requires Pearson, 97 Ala. 211, 12 So. 176; brakemen to examine and know for Louisville & N. R. Co. v. Orr, 91 themselves that steps of the cars are Ala. 548, 8 So. 360. in proper condition, and which §330 Etilbs. 837 It has been said that the measure of obligation which is imposed upon an employee of this character, by virtue of this rule, is much less strict than is imposed upon em- ployees of the defendant charged with the specific duty requires conductors to see that this duty is performed, is a resb- sonable rule as matter of law. And where a freight conductor failed to require inspection of the steps and was injured by the breaking of the step, it was held he could not recover. Scott v. Eastern R. Co. of Minn., 90 Minn. 135, 95 N. W. 892. A rule requiring brakemen to examine and ascertain whether the hand rails on cars axe in proper condition for use, is reasonable, and hence a brakeman disregarding such duty, injured by an insecure rail of a cax, has no cause for com- plaint against his employer. Terre Haute & I. R. Co. v. Pruitt, 25 Ind. App. 227, 57 N. E. 949. If by the rule of a railroad company, known to an employee, the duty of making inspection of a freight car was in fact cast upon him, he cannot recover for injuries caused simply by a failure to make the in- spection. The negligence in such ease would be his own. Ft. Wayne C. & L. R. Co. v. Gruff, 132 Ind. 13, 31 N. E. 460. Where a rule requires employees to frequently examine the brakes, couplings and running gears of cars on their train and to know that they were in good repair, a failure to comply with such rule, if known to the em- ployees, will constitute negligence on his part. Louisville E. & St. L. C. R. Co. V. Utz, 133 Ind. 265, 32 N. E. 881. Thus where the printed rules required that brake- men should test the hand brakes upon cars before starting, and a brakeman who knew the rules failed to do so, and in going down a steep grade the brakes would not work, and as a result the train ran away causing injury to such brakeman, it was held that as his disobedi- ence of the rule caused the accident he could not recover. It was said that had the plaintiff been unac- quainted with the rules, he would not be entitled to recover, as with full knowledge of the dangers it was incumbent upon him and his asso- ciates before reaching the down grade to see that a suf&cient num- ber of the brakes to properly check the train were in order. La Croy V. N. Y., L. E. & W. R. Co., 132 N. Y. 570, 30 N. E. 391. Where a rule provided that ."every em- ployee ... is hereby warned that, before exposing himself or his fellow-employees to danger, it wiU be his duty to examine the condition of all machinery, tools, cars, engines or trucks that he is required to use in the performance of his duties, satisfying himself as far as he reasonably can that they are in safe working place. It is the right and duty of every employee to take siifficient time to make such examination, and to refuse to obey any order which exposes him or his fellow-employee to danger;" and it appeared an experienced brakeman was injured while in the attempt to couple cars, as was alleged, by reason of a defect in a draw bar, it was held that it was his duty to ex- 838 Master and Sebvant. §330 of inspecting cars for the express purpose of discovering their condition, and the reason for such distinction is obvious. For instance, a brakeman has other duties and obligations resting upon him than that of inspection, and in many cases such duties ahnost wholly exclude any op- portunity to examme the various appUances which he is required to use. Under such circumstances the rule, in- terpreted in the strict sense, would impose an obligation which the employee would have little or no opportunity to discharge. It must therefore be subject to a reasonable interpretation measured in degree by the opportunity to examine and the character of the defect. Failure to dis- cover defects which would constitute negligence in a car inspector might not necessarily establish contributory negligence on the part of the plaintiff.^** amine into the coupling arrange- ment of both oars before he attempted to couple them. Karrer V. D. G. H. & M. R. Co., 76 Mich. 400, 43 N. W. 370. Where the rule charged brakemen with the man- agement of brakes and tha proper display and use of signals, and that they must examine and know for themselves that the brakes, ladders and running boards, steps, etc., which they are to use are in proper condition, and if not put them so, or report them to the proper par- ties and have them put in order before using, it was held that a brakeman who knew of such rule, and also that the nut on top of the standard of the brake, used to hold the brakewheel on, was off, but without putting it in proper condi- tion or reporting it to the proper parties attempted to use it, whereby the wheel came off and he was thrown upon the track and injured, could not recover. BeaU v. Pitts- burg C. & St. L. R. Co., 38 W. Va. 525, 18 S. E. 729. Where a pub- lished rule forbade employees to go between cars to make a coupling unless the draw head and other apparatus were known to be in good order, with which a yard master was familiar, and notwithstanding such rule he attempted to couple cars after he ascertained that the coupling appUances were defective, and knew the act was more than ordinarily dangerous, it was held that attempting the act in violation of the rule was gross negligence contributing to his injury. St. Louis, I. M. & S. R. Co. v. Rice, 61 Ark. 467, 11 S. W. 699, 4 L. R. A. 173. 145. Eaton v. N. Y. C. & H. R. R. R. Co., 163 N. Y. 391, 57 N. E. 609, 79 Am. St. Rep. 600. The particular rule provided that "at all stopping of trains the brake- men or trainmen must inspect the wheels, brakes and trucks of the car and report any defects imme- diately to the conductor." A brakeman was injured while apply- ing a brake upon a freight car §330 EULES. 839 of another company, by the giving away of the brake chain attach- ment thereon. By the same rea- soning, the same conclusion was reached with respect to a rule re- quiring trainmen to inspect their trains before leaving a terminal and at intervals during the trip. Kiley v. Rutland R. Co., 80 Vt. 536, 68 Atl. 713. And also where an answer set out in terms a rule of a raihoad company requiring its brakemen to examine and know for themselves that the brakes, ladders etc., which they were to use were in proper condition, and if not, to pu tthem in condition or report for repairs, and averred knowledge on the part of the plaintiff, a brake- man, and neglect to obey it, and the trial court having sustained a demurrer to a reply to such answer which set up a lack of opportunity on the part of such brakeman to examine the car in question, it was said that the duties put upon the brakeman by the rule added very little to the duties placed upon him by the rules of law; something more than the m^ere making of a rule re- quiring brakemen to make inspec- tion of the implements and machin- ery used by them is necessary in order to shield the master from the consequences of a failure to perform the duties of furnishing safe im- plements and machinery imposed by law upon him. The reply shows very clearly that the deceased had neither the appliances nor the op- portunity to make the inspection required by the rules, and he was thereby relieved of that duty in so far as it was imposed upon him by such rules. The facts were that a brakeman was injured by the breaking of a brake staff. It was alleged in the complaint that it had been broken for two months prior to the accident and defendant had notice. The answer, among other things, denied that the company had notice, and averred that the brake staff had been carefully in- spected without discovery of the defect, and that the defect was of such a character that it could not be discovered without detaching the brake staff and testing it with a hammer. The reply was to the effect that the brakeman was called but a short time prior to the train going out, and was engaged con- tinuously with his lamp signals, and in coupling and loosening brakes, so that he had not time to examine for and discover the defect in the brake staff, and also that it was dark, the yard was not Ughted, and he only had an ordinary lan- tern, which was insufloient. That an inspection by regular inspectors would have discovered the defect, but a casual examination would not. Chicago, St. L. & P. R. Co. v Fry, 131 Ind. 319, 28 N. E. 989. A freight conductor sufBciently compKed with the rule of the com- pany requiring him to know that there were reliable brakes on the car, where before starting he tested them in the usual way by setting and releasing them, where at the third . station after the company's inspector examined them, the con- ductor applied the brakes and some- thing gave way throwing him to the ground causing him injiu^r. It appeared that the chain had some time before parted and been fas- tened with hay wire which broke under the strain. McDonald v. Michigan Cent. R. Co., 132 Mich. 372, 93 N. W. 1041, 102 Am. 840 Master and Servant. §330 It should be kept in mind, however, that the master cannot evade a duty imposed by law by promulgating such a rule.^^° Rule requiring display of signals and flagging trains. It would seem that the duty imposed by such rules is equally important and should be as strictly observed as the rule regulating speed of trains. Failure to observe it may result in such serious consequences, and has so re- sulted so frequently, that no excuse should be tolerated where the opportunity was present to observe the rule. We have only here to deal with excuses that have been presented and merely state what was offered as such, and the conclusion reached without further comment. Suffi- cient excuse being wanting, failure to observe such rule is or should be negligence as matter of law. For instance, failure to send back a flagman upon train becoming stalled;^*' or failure of a fireman to caU the engineer's St. Rep. 426. A rule of a railroad, company requiring employees mak- ing couplings to examine the coupling devices and not make the coupling if anything was in a dan- gerous condition, is not violated by a brakeman, who observing as he was about to make a coupling, that the link would not enter the draw- head of the standing oar, immedi- ately started to go from between the cars, and was struck in the eye by a sliver of iron detached by their contact. That the injury might have been received in the same manner had the appliance been in proper repair, held not to have the effect to relieve the mas- ter from liability. Denver T. & Ft. W. R. Co. V. Smock, 23 Colo. 466, 48 Pac. 681. 146. A telephone company gave each of its linemen a printed notice setting forth their duty and among other things stating that "all line men and other employees of the company whose duty required them to work upon or about poles, are specially charged with the duty of inspecting the implements with which they work, all poles, cross arms and wires, and must know that they are safe to work with or upon, before climbing them or going upon such poles and cross arms." It was held that the master could not thus evade its duty which was imposed by law, and hence could not escape liability for the setting of a defective pole by one gang of workmen causing injury to a member of another gang by reason of the pole breaking. Ault V. Nebraska Tel. Co., 82 Neb. 434, 118 N. W. 73, 130 Am. St. Rep. 686. 147. Burris v. Minn., St. P. & S. S. M. R. Co., 95 Minn. 30, 103 N. W. 717. §330 EULBS. 841 attention to a signal set against the train which the engineer had failed to observe. ^^^ A rule of a railroad company providing that on a train stopping at a station under circumstances in which it may- be overtaken by another train, the flagman must go back with flag signals to protect the train, and the front of the train must be protected in the same way when necessary, vests some discretion in the engineer stopping his engine on the main track as to sending out a flagman in front thereof and the question of negligence in failing to properly protect the train is for the jury.^*' Other eases relating to signals and flagging are given in the notes below."" 148. Elmgren v. Chicago, M. & St. P. R. Co., 102 Minn. 41, 112 N. W. 1067, 12 L. R. A. (N. S.) 754, 149. CahUl V. Chicago, M. & St. P. R. Co., 143 Iowa, 152, 121 N. W. 553. 150. Although a rule of the company provided that whenever violent storms prevailed trackmen should carefully examine the track, that station agents should see that the foreman was on hand with his men to protect the track and that track foremen should immediately on the occurrence of such storms take their men and proceed over their sections, and if any place was found unsafe, to flag approach- ing trains, the defendant was not negligent, where a Umb was blown across the track within twenty minutes after a storm began, such limb being taken up by a locomotive and carried into another section, where it derailed the train, and the section men were out upon the section after the train had passed, but within twenty minutes after the beginning of the storm. Cox v. Chicago & N. W. R. Co., 102 Iowa, 711, 72 N. W. 301. The rules of a railway company provided "all trains must approach terminals, the ends of double tracks, junctions, railroad crossings at grade and draw bridges, prepared to stop, must not proceed until switch light signals are seen to be right or the tracks seem to be clear." It was held this rule does not require an engineer in charge of a switch engine upon a cross over track, to stop his engine in the clear of a main track until switch light has been turned. He may rely upon other signals and upon observa- tion; that the engineer in this case was conclusively guilty of contrib- utory negligence in obeying a lantern signal of the head switch- man to advance toward the switch on the main out going track with- out waiting for the switch light to be turned. Dwyer v. North Pac. R. Co., 106 Minn. 281, 118 N. W. 1020. la the particular cas3, the evidence did not support the con- tention that an injury to a loco- motive engineer was the result of 842 Masteb and Seevant. §330 Rule requiring section men to flag curves. Where a section foreman in charge of a hand car fails to send a flag around a curve according to the rules of the road, and he is injured by collision with a train, he will be held guilty of contributory negligence.^" the concurring negligence of the train dispatcher and employees in charge of another train colliding with the train operated by such engineer. That the dispatcher was not negligent, since he gave no order interfering with the estab- lished rules, that under the cir- cumstances reUeved the trainmen from flagging approaching trains. Veit V. Ann Arbor R. Co., 150 Mich. 358, 114 N. W. 233. Though employees of a railroad company, while engaged in the performance of their duties in the yards, may rely upon the custom adopted for their protection of giving signals of the approach of train or engines moving about the yard, the same rule in all its force does not extend to them while not absorbed in their duties and passing leisurely through the yards. A section man struck by an engine whUe thus passing through a railroad yard, was held guilty of contributory negligence as matter of law, where there was nothing to divert his attention or obstruct his view. Magliani v. Minnesota Transfer R. Co., 108 Minn. 148, 121 N. W. 635. 151. Southern Pac. R. Co. v. Ryan, 29 S. W. (Tex. App.) 527. Where a section foreman was injured by being run into upon a curve by a train, and he failed to observe a rule requiring him to flag curves and keep a constant lookout, it was held that he could not recover, even though the engi- neer failed to give signals as re- quired by the rules. Louisville & N. R. Co. V. Markee, 103 Ala. 160, 15 So. 511, 49 Am. St. Rep. 21. Where a railroad company promul- gated a rule which directed section men at all times to be prepared for special or irregular trains, an em- ployee taking service with such company becomes bound by the rule, and such an employee, though directed specially to proceed to a certain place upon his car, was bound not to enter a curve where an irregular train might come upon him without taking precautions to discover its approach and avoid a collision. It was said by the court: I'We are unwilling to hold that a railroad company which has made such a rule is bound to give special notice to the section men along the line as each irregular train is sent over the road." Cincinnati I. St. L. & C. R. Co. V. Lang, 118 Ind. 679, 21 N. E. 317. It was held that it was negligence on the part of foremen in charge of hand cars to disregard a rule which required them to carefully flag their hand cars against special trains, and to use special care in running hand cars where by reason of curves risk is involved. Kansas & A. V. R. Co. V. Dye, 16 C. C. A. 604, 70 Fed. 24. § 330 EuLBS. 843 Disobedience in emergency. It seems that a servant is not necessarily ^ilty of con- tributory negligence because of his disobedience of a rule in an emergency.^^^ Employee acting under orders of superior. An important question is often involved of the effect of the violation of a known rule, especially one established for the protection of employees, by an employee acting under orders or direction of his superior. Of course a sub- ordinate is placed in a delicate position where his superior commands or directs the performance of an act which is in direct violation of a known rule. He is apt to incur his displeasure and perhaps may incur dismissal from the service in case of disobeying such direction. Yet such ought not to be the restdt. The courts are to some extent divided upon the question, and also much depends upon the particular circmnstances and conditions. In an emergency, perhaps, obedience to such a direction would be justified. However, ordinarily it woidd seem that obedience to a known rule is the absolute duty of an em- ployee. Its requirements come from the highest source, and supplements the actual command and direction of 152. Rules which prohibit em- Ala. 297, 20 So. 49. While a con- ployees from going between mov- ductor of a train should be held to a Ing cars to uncouple them are rea- reasonable observation of rules, 6on_-ble and should be enforced; yet stUl he has a general duty and dis- emergencies may arise which require cretion to use his judgment for the prompt action on the part of em- safety of his train in case of an ployees, and which cannot be emergency. Hence it was held, successfully met without a viola^ where a conductor whose place of tion of the rule. In such case the duty under the rules at the time of employee is relieved from compli- the accident was ou the cars, about ance with the rule; but this will not the middle of the train, but antici- have the effect to shield him from pating an obstruction he went to his own culpable negligence. A the engiaeer to put him on his mere question of convenience or of guard, and was injiu:ed while absent saving time, no other pressing from his post, that he was not guilty interest being involved, wiU aot of a violation of the rule. Somerset, justify disregard of the rule. Ala- etc., R. Co. v. Galbraith, 109 Pa. bama, G. S. R. Co. v. Richie, 111 St. 32, 1 Atl. 371. 844 Masteb and Seevant. § 330 the master. As stated by a learned court: "It would be a strange rule of law which would justify the negligence of an employee in the performance of his duty by simply show- ing that another employee engaged about the same busi- ness, was likewise negligent.""' Such seems to be the generally accepted doctrine. The cases where it is not applied, with very few exceptions, are those where peculiar conditions were present or where it was assumed that the agent giving the direction so far represented the master, by reason of his particidar em- ployment, that he had authority to abrogate or supersede the rule in the particular instance. The more frequent instance, where the question has been determined, relate to directions of a conductor, given to his subordinate upon his train, it having been qiute gener- ally held that he has no authorityto dispense with a rule, made for the safety of his employees."* And where a brakeman, when injured, was riding in the cab of the engine, while the train was descending a grade, at the direction of the conductor, because it was extremely cold, and the rules provided that the conductors should require aU their brakemen to be on top of the train while ascending or descending grades, it was held the conductor had authority in the premises, and that such brakeman was not guilty of contributory negligence in obeying such direction in disregard of the rule.^** The doctrine was applied with great strictness where a conductor, without protest, while another train was over- due and expected from the opposite direction, started out with his train in violation of the rules with which he was 153. Port Royal & W. C. R. tieular rule not observed was that Co. V. Davis, 95 Ga. 292, 22 8. E. relating to the use of coupling 833. sticks. The coatrary has been held. 154. Richmond & D. R. Co. v. Mason v. Richmond & D. R. Co., Rush, 71 Miss. 987, 15 So. 133; 111 N. C. 482, 16 S. E. 698, 18 L. Port Royal & W. C. R. Co. v. Da^ R. A. 845, 32 Am. St. Rep. 814. vis, 95 Ga. 292, 22 S. E. 833; See also Richmond & D. R. Co. v. Richmond & D. R. Co. v. Finley, Rudd, 88 Va. 648, 14 S. E. 361. 12 C. C. A. 595, 63 Fed. 228 155. Hurlbutv. Wabash R. Co., [reversing 59 Fed. 419]. The par- 130 Mo. 657, 31 S. W. 1051. § 330 EuLEs. 845 famiKar, acting under the direction of his superior officer, an agent and superintendent of the division, which he was bound to obey or lose his job. It was held that he thus failed in the want of due care which precluded his recovery for injuries sustained in collision with such other train. ^'^ It was held, however, in another court, where a brake- man, under the direction of the conductor of his train and in the presence and with the knowledge of the superintend- ent of that division of the road, opened and adjusted a switch for a long time in a manner different from that pre- scribed by the established rules, that such rules were deemed to have been chajiged or modified ae to such brakeman.^"^ It was also held that a train dispatcher so far represents the company that, in an emergency, his verbal order to an employee will justify the latter of obeying it, though a general printed rule requires that such specific order should be in writing. This was held where a conduc tor was verbally directed by the train dispatcher to take the engine attached to his train and go after a caboose which had become detached from the train and left some miles behind, and with the consent of the engineer and fireman he obeyed, and in returning his engine came in coUision with a train, whereby the fireman was killed. The rule in question provided that "AU orders and messages relating to the movement of trains must be in writing, in full, and no abbreviations used, except" certain ones stated. ^^* The Indiana court seems to be in accord with those courts which hold that obedience to the direction of a superior, though inconsistent with printed rules for the government of engineers, in the operation of trains, 156. Wescott V. New York & 158. Smith v. Wabash St. L. & N. E. R. Co., 153 Mass. 460, 27 P. R. Co., 92 Mo. 359, 4 S. W. 129, N. E. 10. 1 Am. St. Rep. 729. 157. Kansas City, Ft. S. & G. R. Co. V. Kier, 41 Kan. 661, 21 Pac. 770, 13 Am. St. Rep. 311. 846 Master and Seevant. §330 excuses the employee from the charge of contributory negligence. ^^^ Effect of conflicting rules. It was said if compliance with a general rule is rendered impossible by other and inconsistent orders given by the master to his employees, negligence cannot be imputed to the employee for not following the generalnile. This was said and applied where it appeared that an engineer failed to comply with a rule requiring him to reduce the speed of his train, while running through a particular yard, so as to have it completely under control, and it also appeared that this could not be done if he conformed to the time table. It was held that the rule was modified by the time schedule."" 159. Pennsylvania Co. v. Ro- ney, 89 Ind. 453, 46 Am. Rep. 173. 160. HaU V. C. B. & N. R. Co., 46 Minn. 439, 49 N. W. 239. The conclusion of tte court will hardly meet with general approval. The loss of time in running through a yard would hardly amount to a minute. It is idle to say that it could not be made up in running a few miles at most. But if not so, proper consideration for human life and a liberal construction of both regulations would suggest that the order to run slow was intended to be controlling. It is not a matter of great importance that a train is a few moments behind schedule time at a station. Such delay is of every day occurrence on all rail- roads. Railroads should not be required to change their running schedule where slight delay may be occasioned by a necessity for safety, either permanent or temporary, as where the condition of the track is or becomes temporarily unsafe. A rule provided "all passenger trains wiU use four minutes between each switch and J. Junction and J." A preceding rule stated signals had been erected east and west of such junction and aU trains should come to a fuU stop when a red sig- nal was displayed and not to pro- ceed until changed. The suc- ceeding rule declared that all trains approaching J. and J. Junc- tion, must be under full control so as to be able to stop in ease the track should from any cause be occupied and a sharp lookout must be kept for signals on approaching such points. It was held that the rule first stated should be con- strued in coimection with the other rules, that it was apparent that such rule was intended to delay, not hasten the movement of trains. That it was intended as a minimum, not the maximum of time. Whalen v. Michigan Cent. R. Co., 114 Mich. 512, 72 N. W. 323. § 331 EuLEs. 847 Proximate cause. The mere fact that a rule or custom, designed for the protection of employees, ha? been disregarded, is of no con- sequence where it appears that its observance woidd in no manner have protected the employee or that its non- observance was not the proximate cause of the accident.^" Disobedience of a rule, even where such rule is known and understood by the employee, must have contributed to the injury in order to preclude him from recovery. There must be a casual connection between the disobedi- ence of the rule and the injury received.^^^ Thus the violation of a rule prohibiting the drinking of intoxicating liquors will not be a defense in an action for injuries by an employee where it did not contribute in any appreciable degree to his injury."' § 331. Construction. Rules promulgated by the master must receive a reasonable construction in connection with aU the sur- rounding circumstances. But an ambiguous rule should generally be taken in its stronger sense against the em- ployer and in favor of the employee."^ The construction placed by the courts on many part''cu- lar rules are given in the notes below."* 161. Moore v. Great Northern 162. Fickett v. Lisbon Falls R. Co., 67 Minn. 394, 69 N. W. Fibre Co., 91 Me. 268, 39 Atl.996. 1103. It being the sole purpose of 163. Western & A. R. Co. v. a rule relating to the speed of trains Bussey, 95 Ga. 584, 23 S. E. 207. passing over switches to £:uard 164. Western & A. R. Co. v. against collisions within station Moore, 94 Ga. 457, 20 S. E. 640. limits, an excess of speed at the 165. Reab bkakeman must see switch is immaterial, where the conductob is on teain. A rule engine caught up a tree lying across that the rear brakeman should the track without knowing it, never allow the train to leave the which was carried to the switch, and station until certain that the con- then came in contact with it, duetor is on the train, does not derailing the engine and killing the apply to the movements of a train fireman. The carrying of the tree in settiag out a car. Pearl v. was the proximate cause of the Omaha & St. Louis R. Co., 115 accident. Cox v. Chicago & N. W. Iowa, 535, 88 N. W. 1078. R. Co., 102 Iowa, 711, 72 N. W. 301. 848 Master and Servant. §331 Engineer must not leave engine with no one in charge. A rule providing that enginemen must not leave their engines with steam on, except in charge of an employee, and that when an engine is placed on a siding or elsewhere to stand, the throttle must be fas- tened shut, the reverse lever fixed on the center and the tender brakes shut tight, has no application to an engine while under the direct and immediate control of the engineer. Cleveland, C, C. & St. L. R. Co. v. Bergschicker, 162 Ind. 108, 69 N. E. 1000. Setting brakes and blocking WHEELS OP CARS ON SIDING. The rule of a railroad company that when cars are placed on a siding the brakes must be set, and if on a grade the wheels must also be blocked, and derailing switches when in use must be set to ground, applies when cars are placed on a siding to be left and not where a car is shifted to a siding by one train for the purpose of passing over it, to be taken by a train waiting for it. Davis's Admx. V. Rutland R. Co., 82 Vt. 24, 71 Atl. 724. Employees to examine brakes, COTJPLINGS, ETC. It was held that whether rules of a railroad company requiring certain employees to ex- amine the brakes and other appK- ances before starting, had apphca- tion to six cars, which were to be taken from the yard by means of a switch engine, and taken to a near by station, was a question for the jury. Lynch v. Great Northern R. Co., 112 Minn. 382, 128 N. W. 457. Where a rule provided that "con- ductors and trainmen are required to be at terminal stations thirty minutes before leaving time of their trains; brakemen must exam- ine the coupling apparatus and brakes before train starts and re- port to the conductor such as are not in good order," it was held that prima facie it was incumbent upon brakemen to examine only at term- inal points before starting of a train; that it was improper to leave to the jury the determination of the meaning of the rule, and evidence was not admissible to show how employees interpreted or acted upon it, without showing that plaintiff so understood or so acted on the rule or knew that other employees did so. An ambiguous rule should generally be taken in its stronger sense against the cor- poration and in favor of the em- ployees. Western & A. R. Co. v. Moore, 94 Ga. 457, 20 S. E. 640. Negligence was imputed to a switchman who in attempting to set the brake on a foreign car in the night time, did not examine the brake before using, a rule having been promulgated requiring brake- men to examine brakes before using. The rule had no applica- tion. New Orleans & N. E. R. Co. V. Clements, 40 C. C. A. 465, 100 Fed. 415. Running hand car aeter dark. Whether a section boss in going with his hand car upon a message from the track superintendent to a distant point, whicih required one hour and twenty minutes to reach, starting before day light, was in violation of a rule of the company prohibiting the running of a hand ear after dark without special leave, was a question for the jury. McGhee v. Campbell, 42 C. C. A. 94, 101 Fed. 936. §331 EuiiES. 849 Applying for clearance card. An engineer having applied for and received a clearance card three- quarters of an hour before leaving a station, whether clearing mthout again making application was in violation of the rule requiring him. to apply for and get a clearance card before leaving the station, was a question for the jury. Baltimore & O. R. Co. V. Camp, 44 C. C. A. 451, 105 Fed. 212. Requiring brakemen to be on TOP OF car. a rule requiring rear brakemen to be on top of a freight train while in motion, is not a rule for the protection of the brakeman and hence where a brakeman was in the caboose at the time a helping engine struck the caboose so hard as to derail it, causing him injury, did not preclude recovery. Tullis v. Lake Erie & W. R. Co., 44 C. C. A. 597, 105 Fed. 554. Mine, in respect to danger FROM FALLING COAL. A rule in respect to the operation of a coal mine, to the effect that the danger of falling coal is one of the risks assumed by miners therein, is not applicable where such fall of coal is the result of the negligence of the employer or a vice principal. Con- solidated Coal Co. V. Gruber, 188 lU. 584, 59 N. E. 254. Lookout on foot board op ENGINE. A rule requiring a look- out on the foot board of an engine backed across a public highway is for the protection of the public and not of employees such as section men. Carlson v. Cincinnati S. & M. R. Co., 120 Mich. 481, 79 N. W. 688. Requiring display op flags BY CAR REPAIRERS. A rule pro- 1 M. & S.— 54 viding "a blue flag by day and a blue light at night displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it," requires that a flag shall be placed at each end of a car when both ends are exposed to the danger of a collision. O'Neill v. Lehigh Valley R. Co., 75 N. J. L. 422, 67 Atl. 1019. Rule relates to cars on siding ONLY. A printed rule that a blue flag by day and a blue light by night placed on the end of a car denote that car inspectors are at work under or about the oar, that such car must not be coupled to or moved until the signal is removed by the inspectors, that when a car or train standing on a siding is protected by a blue signal, other cars must not be placed in front of it so that the signal will be ob- scured, without first notifying the car inspector, that he may protect himself, relates to cars or trains on sidings or in the yard and not to regular passenger trains making transient stops at a station, hence negligence of the company towards one of its inspectors could not be predicated of an omission to place the blue signal on such a passenger train. Warn v. N. Y. C. & H. R. R. Co., 157 N. Y. 109, 51 N. E. 744. It was held that a rule pro- viding that "car repairers, in mak- ing repairs to cars standing on main track or side track, must protect themselves by placing a blue signal in the draw head or on the platform or step of the car at each end of the train to prevent the cars from being coupled to or moved while they are making repairs," did not apply to cars located upon a 850 Master and Servant. §332 § 332. Pleading. It is not necessary to plead the existence of rules. They are mere evidence bearing upon the question of negligence on the part of the defendant or its employees and the care and diligence of the plaintiff.^" A plea is demurrable that does not allege that the plain- repair track in the yard. Quick v. Indianapolis & St. L. R. Co., 130 lU. 334, 22 N. E. 709. Requiring conductors to see THAT CARS ARE IN ORDER. A rule requiring conductors of freight trains at starting points to see that their cars are in proper running order before starting, does not require a conductor to make a critical examination of the several cars and their attachments, but that he should make a general sur- vey of his train, and take notice whether to all appearances the cars are in proper order and remedy any defect discovered. The fact that upon a train a brake beam was found dragging, before the yard was cleared, but at a considerable distance from the starting point, was not sufficient to charge a conductor with contributory negli- gence as matter of law. Baltimore & Ohio R. Co. V. Burris, 50 C. C. A. 48, 111 Fed. 882. Prescribing duties of firemen. A rule provided that "firemen must attend to the Acres of the locomotive when on the road and to taking water and oiUng the machinery, assisting the engineman in watch- ing for signals and obstructions, clean and polish their locomotives at the end of each trip and assist in making repairs when necessary." Where an engine was engaged in switching, having cars coupled in front and while slowly moving back came in collision with another switching engine backing in the opposite direction, and the fireman was standing on the front of his engine cleaning the number which was below the head light, his vio- lation of the rule was such negli- gence as precluded recovery for his death caused by such collision. Erie R. Co. v. Kane, 55 C. C. A. 129, 118 Fed. 223. Control of trains in case of extraordinary storm. It was a question for the jury whether the non-observance of a rule of the company requiring engineers, in case of extraordinary rain storm or high water, to stop their train and send a man ahead to examine embankment, bridges, culverts and trestles and to make careful in- quiry at all stopping places to ascertain the extent and severity of the storm, was such negUgence, under the facts as shown, to pre- clude recovery. Chicago Great Western R. Co. v. Roddy, 65 C. C. A. 470, 131 Fed. 712. 166. Alcorn v. Chicago & Alton R. Co., 108 Mo. 81, 18 S. W. 188; Logan V. Railway Co., 77 Mo. 663; Henry v. Railway Co., 66 Iowa, 52, 23 N. W. 260. Contra, Strong V. Iowa Cent. R. Co., 94 Iowa, 380, 62 N. W. 799. § 333 Rules. 851 tiff had knowledge of the rule therein relied upon. If not demurred to, it presents an issue. "^ § 333. Evidence relating to. It was said to be incumbent on the defendant in an action brought by an employee for injuries sustained and negligence shown, where the question of rules is involved, to show that it made all reasonable and proper regulations for the safety of its employees. That on such showing the presumption will be that the negligent act was done in violation of its rules."* Such, however, is not in general the rule of law applied in such cases. There is no rule, except a statutory rule in Ohio, that casts the burden upon the defendant of showing that it was in the exercise of proper care. The burden is upon the plaintiff to show a want of such care and that it was the proximate cause of the alleged injury. Of course it follows that where it is shown that the master exercised due care in establishing rules, reasonable and sufficient, then the presimiption necessarily follows that a violation of the rules, such being the question, was a proximate cause, but whether such violation was negligence depends upon particidar conditions and cir- cimistances. Where, however, the violation of the rule is relied upon by the defendant, it is incumbent upon it to show the existence of the rule and that it had been promulgated so as to charge the employee with knowledge thereof."' The fact of the promulgation of a rule by a railroad comppny requiring that certain precautions be taken as for instance, in case of the removal of a rail by section men, that certain precautions be taken to warn those in charge of approaching trains or engines, is an admission that ordinary care requires these things to be done."" 167. Memphis & C. R. Co. v. 169. Raleigh & G. R. Co. v. Graham, 94 Ala. 545, 10 So. 283. Allen, 106 Ga. 572, 32 S. E. 622. 168. Pittsburg, Ft. W. & C. R. 170. Chicago & A. R. Co. v. Co. V. Powers, 74 HI. 341. Eaton, 194 lU. 441, 62 N. E. 784, 88 Am. St. Rep. 161. 852 Masteb and Seevant. § 333 How proven. Rules may be proven from the printed book of rules; only those which are competent should be offered, and such should be designated and offered separately. The whole book of rules can not be offered."^ A ride not printed may be proven, though not pleaded.1'2 And it may be shown that the requiiement was whoUy oral, where communicated to the employee."' Rules are admissible in evidence without first showing plaintiff's knowledge of them. That is a subsequent step in the proceeding."* Rules of other companies. Proof of rules promulgated by certain other railroad companies, bearing upon the same subject, is admissible upon the question of the sufficiency of the rules established by the defendant company, and it is competent to show by parol from the actual knowledge end recollection of a witness, the rule actually enforced while he was in the employ of other railroads-, and to use any edition of the company's rules to refresh his recollection. It is not reqmred that the original manuscript of the rules written from which the printed rules were taken, be produced."' It has been held that proof of the rules established by other railroad companies, was inadmissible to show negli- gence on the part of the defendant company, in failing to provide such rules."* It was subsequently held by the fame court, that the book of rules of the defendant company was admissible 171. Mosnat v. CMcago & N. R. Co., 83 Ga. 539, 10 S. E. 233. W. R. Co., 114 Iowa, 151, 86 N. W. See Georgia Pao. R. Co. v. Davis, 297; Memphis & Charleston R. Co. 92 Ala. 300, 9 So. 252, 25 Am. V. Askew, 90 Ala. 5, 7 So. 823. St. Rep. 47. 172. Gibson v. Burlington C. 175. Devoe v. N. Y. C. & H. R. R. & N. R. Co., 107 Iowa, 596, R. Co., 174 N. Y. 1, 66 N. E. 568. 78 N. W. 190. 176. St. Louis & S. F. R. Co. v. 173. Devoe v. N. Y. C. & H. Nelson, 20 Tex. Civ. App. 536, R. R. Co., 174 N. Y. 1, 66 N. E. 568. 49 S. W. 710. 174. Parker v. Georgia Pac. § 333 EuLES. 853 on the issue of negligence on the part of the company, to show the absence of provisions for the safety of the plain- tiff, which should have been made, or to show that some of the rules did apply and were abrogated, or if not that provisions were made for the safety of other employees, where the risks were similar."^ Change of rule after accident. Evidence that subsequent to a collision, between trains, caused by a failure to stop the train for orders upon which the injured person was fireman, the defendant changed its rules and adopted a different method of stopping its trains at the particular point, was held inadmissible. ^^^ Such ruling accords with the general rule as to repairs made after accident. Contract signed by employee. A contract signed by an employee in which is an acknowledgment of the existence of a nile, such for instance as forbidding any attempt to vmcouple moving cars, is admissible in evidence as showing the conditions of his emplo3Tnent and knowledge of the rule. Such a contract is not against public policy because it contains a provision that he assumes the risk from doing the forbid- den act.i" 177. Texas & N. O. R. Co. v. 179. Sedgwick v. Illinois Cent. Tatman, 10 Tex. Civ. App. 434, 31 R. Co., 73 Iowa, 158, 34 N. W. 790; S. W. 333. Russel v. Richmond & D. R. Co., 178. Moon V. Pere Marquette 47 Fed. 204. R. Co., 143 Mich. 125, 106 N. W. 715, 108 N. W. 78. 854 Master and Sebvant. CHAPTER VII. RELATING TO EMPLOYMENT OF SERVANTS. Sec. See. I. Competent seevants. 334. In general. 335. Duty of master. Statutes as abolishing rea- sonable care rule. 336. What constitutes ordinary care. Statement of what ordinary care requires criticized. Necessity for making, and sufficiency of, inquiries. System of promotion. Instruction as to promotion criticized. Nature of emplojrment to be considered. 337. Duty personal to the master. Illustratioi of rule. 338. Retention of servant. Presumption that compe- tency and fitness con- tinue. When notified not bound to discharge without in- vestigation. 339. Master's knowledge of incom- petency. 340. Presumptions. Burden on plaintiff not only to show incompetency but master's knowledge. Conflicting decisions in Michigan. Where employee of intem- perate habits. Rule where negUgent serv- ant a vice-principal. Insane employees. What must appear to charge master with knowledge. Ph-evious record may be shown. Deafness. Track repairer as engineer. Slight experience and pre- vious misconduct. Habitual use of intoxicating liquors for six months. Attention of officers called to employees intemper- ate habits. General reputation. Employment of inexpe- rienced person without inquiry. Large experience as switch- man, none as conductor. Personal knowledge unnec- essary. Knowledge by officer in charge. Knowledge by one having authority in the premises. Where employment exceed- ingly dangerous. Admissions by servants as to his incompetency. What constitutes incompe- tency. Ignorance of English lan- guage. Physical infirmity. Inexperience and want of skiU. Insane persons. Personal appearance upon witness stand as evidence. Slowness or laziness. Habit of intoxication. Age of servant. Previous acts of negligence. Relating to Employment of Servants. 855 Seo. Competency for work Mred to do. Effect of license or certifi- cate. Single act of negligence. Negligence at time of plain- tiff's injury. Competency to be deter- mined as of time of acci- dent. Presumption as to compe- tency. 341. Reputation as proof of incom- petency. Reputation as admissible on question of master's knowledge. Extent of reputation. Reputation as to physical infirmity of common la- borer. Reputation as to careless- ness. Reputation alone as suffi- cient. Reputation as a careful workman. Reputation to charge fellow- servant with knowledge. 342. Specific acts as proof of incom- petency. Methods of establishing in- competency. Single acts. Negligence and incompe- tency not convertible terms. Rule in Minnesota. Rule in Indiana. Rule in California. Statement of Texas court. 343. Character of act as tending to show incompetency. Neglect to shift belt in emergency. Momentary forgetfulness while engaged in conver- sation. Sec. Starting machine before re- ceiving signal. Sending engine upon track when coming train is over due. Conduct on examination of train register. 344. Incompetency as proximate cause. 345. Where servant member of labor union. II. Number of servants. 346. Duty of master. 347. Applications of rule. Brakemen. Car repairers. Handling block. Handling hose. Loading vessel. Lowering lumber in trench. Moving heavy machines. Moving poles. Moving timber or other heavy articles. Operating edger in mill. Piling lumber. Raising pole. Switch, operating. Track walkers. Unloading car. Yard men. III. Employment of minors. 348. Duties and liabilities inde- pendent of statute. 349. Statutory provisions. Illinois. Indiana. Iowa. Michigan. IV. Employment of physician OB SURGEON IN CASE OF ACCI- DENTS. 350. Duty of master. 351. Authority of agent to employ. 352. Competency of surgeon em- ployed. 856 Masteb and Seevant. §§ 334, 335 I. Competent Servants. § 334. In general. It is a settled rule that the master is liable to a servant injured by the negligence of an incompetent co-servant, where the master has been negligent in employing or re- taining ia his employ the offending servant. This rule is an exception to the feUow-servant rule; and the risk of injury from an "incompetent" co-employee is not one of the assumed risks. ^ § 335. Duty of master. The duty of the master, with respect to the employment of his servants, is that of the exercise of ordinary care and diligence, having respect to the exigencies of the particular service, to the end that he may ascertain their qualifica- tions and competency for such service. ^ Statutes as abolishing reasonable care rule. However, where a statute required owners or operators of coal mines to employ only competent and trustworthy engineers to operate the cages and hoisting devices in the mine, it was held to abrogate the common law rule requiring reasonable care in such selection, thereby making 1. See chapter on assumed risk, 13, 80 Pac. 18, 1 L. R. A. (N. S.) vol. 2. 682; Gates v. Chicago, M. & St. P. 2. Wrightv.N.Y. C.R. Co.,25 R. Co., 2 S. D. 422, 50 N. W. 907; N. Y. 562; Baulec v. N. Y. & H. Trainor v. Philadelphia & R. R. R. R. Co., 59 N. y. 356, 17 Am. Co., 137 Pa. St. 148, 20 Atl. 632; Rep. 325; Snow v. Housatonic R. Lewis v. Seifert, 116 Pa. St. 628, 11 Co., 8 Allen (Mass.) 441, 85 Am. Atl. 514, 2 Am. St. Rep. 631 ; Weger Dec. 720; Chicago & G. E. R. Co. v. Penn. Railway Co., 55 Pa. St. V. Harney, 28 Ind. 28, 92 Am. Dec. 460; Maitland v. Gilbert Paper Co., 282; Columbus, C. & I. C. R. Co. 97 Wis. 476, 72 N. W. 1124, 65 Am. V. Troesch, 68 lU. 545, 18 Am. Rep. St. Rep. 137; Houston & T. C. R. 578; Staunton Coal Co. v. Bub, 119 Co. v. Myers, 55 Tex. 110; Melville lU. App. 278; Shauck v. Northern v. Missouri River, F. S. & G. Cent. Ry. Co., 25 Md. 462; Wonder R. Co., 48 Fed. 820; Southern Pac. V. Baltimore & O. R. Co., 32 Md. Co. v. Huntsman, 118 Fed. 412, 55 411, 3 Am. Rep. 143; Atchison & C. C. A. 366. E. Bridge Co. v. Miller, 71 Kan. § 336 Eelating to Employment of Sebvants. 857 the master an insurer of their competency and trust- worthiness. ' § 336. What constitutes ordinary care. Ordinary care in this respect is such care as, in view of the consequences that may result from neghgence on the part of the employee, is fairly commensurate with the perils or dangers hkely to be encountered. * If the master makes careful inquiry into the habits and competency of the men employed, and upon such inquiry beUeves, and has reason to beHeve, them sober, competent and careful, he has fulfilled the measure of his duty.^ Ordinary care has been defined as that care which men of ordinary care and prudence, engaged in the same or similar business on their own account, and for their own profit and success, are in the habit of exercising;^ such care as a reasonably prudent person would exercise under similar circumstances.^ The more dangerous the work to be done, the greater the care required in selecting the person to do it.^ 3. Layzell v. J. H. Somers care. Crew v. St. Louis, K. & N. Coal Co., 156 Mich. 268, 117 N. W. W. R. Co., 20 Fed. 87. 179, 120 N. W. 996. The master is 5. Moss v. Pacific R. Co., 49 not entitled to notice of the incom- Mo. 167, 8 Am. Rep. 126; Cerrillos petenoy, since by the very employ- Coal R. Co. v. Deserant, 9 N. M. ment the master neglected a 49, 49 Pae. 807. See also McDer- statutory duty. Kleinfelt v. J. H. mott v. Ry. Co., 30 Mo. 116; EUiott Somers Coal Co., 156 Mich. 473, v. Ry. Co., 67 Mo. 272; Norfolk & 121 N. W. 118, 132 Am. St. Rep. W. R. Co. v. Nuckol's Adm'r, 91 532. Va. 193, 21 S. E. 342; El Paso & 4. Walkowski v. Penokee & G. S. W. R. Co. v. KeUey, 99 Tex. 87, Con. Mines, 115 Mich. 629, 73 87 S. W. 660. N. W. 895, 41L.R. A. 33; Williams 6. Kansas & T. Coal Co. v. V. Missouri Pao. R. Co., 109 Mo. Brownlie, 60 Ark. 582, 31 S. W. 475, 18 S. W. 1098; Western Stone 453. Co. V. Whalen, 151 111. 472, 38 7. Jungnitsch v. Michigan Mal- N. E. 241, 42 Am. St. Rep. 244; leable Iron Co., 105 Mich. 270, 63 Illinois Cent. R. Co. v. Smiesni, N. W. 296. 104 HI. App. 194. The more im- 8. Murphy v. Hughes, 1 Pen- portant the duties the greater the new. (Del.) 250, 40 Atl. 187. 858 Master and Sebvant. '5i 336 Statement of what ordinary care requires criticised. It was said with reference to railroad employees, that oidinary care on the part of the master implies, as between it and its employees, not simply that degree of diUgence which is customary among those intrusted with the man- agement of railroad property, but such as, having respect to the exigencies of the particular service, ought to be observed.* The learned court, in thus repudiating a standard of duty, does not indicate any definite standard that should measure the master's duty. The care an employer ought to exercise might be construed as an exaction of the highest degree of care, in fact more, as a guarantor of the competency and skill of his employees. What even prudent men ordinarily do and what they ought to do are two distinct propositions. The statement of the rule by the court necessarily would leave the question of the care that a master shoidd have exercised to the mere judgment of a jury, without any guide whatever to aid them in deter- mining the question. Necessity for making, and sufficiency of, inquiries. In addition to what has already been said with reference to what constitutes ordinary care in selecting servants, there seems to be no settled rule as the extent of the inquiry which must be made on hiring a servant, as to his competency to perform the work, other than that ordinary care must be exercised. Of course, the nature of the work is an important matter to be considered, and where the work is very simple and not such as to endanger the lives of co-employees, it is probable that no duty of inquiry is imposed on the master. However, if the person seeking employment is of tender years, weak in body or mind, or unable to understand the EngUsh language, these things may require inquiries as to his ability, and affeet the question as to the sufficiency of the inquiries. 9. Wabash R. Co. v. McDan- iels, 107 U. S. 454, 27 L. Ed. 605, 2 Sup. Ct. Itep. 932. § 336 Eelating to Employment of Sebvants. 859 It has been held negligent to employ men to assist in erecting telegraph poles without inquiry as to their competency for such work.^" but not necessary to inquire into the experience of one employed as a section hand to load ties on a hand car.^^ Due care on the part of a mining corporation in em- ploying a boy seventeen years old to manage a brake by which the hoisting and lowering of passenger cages in the mine was controlled, is shown by the fact that the machin- ery was simple and easUy managed, and that the master mechanic, before employing the boy, made inquiries of the boy's father, who was a practical engineer, and was in- formed that the boy had two years' experience in man- aging the brake in another mine, where the duties of the brake were more difficidt, and that he was capable of doing the work the company required. ^^ However, with respect to the care to be exercised in the employment of an engineer, it was stated that no care at all was exercised where it appeared the employer had no other authority for supposing that he had ever, until the day of the accident, attempted to run a locomotive, than the employee's statement, and no inquiry was made as to his character or competency and no certificate or creden- tials of any kind were presented by him.^' However, the mere fact that the employer at the time of the hiring did not question the employee himself as to his competency, skill and carefiilness, will not charge him with negligence, where such inquiries were made of his former employers. ^^ System of promotion. The system of promotion is now quite generally adopted in raih-oad service. It would seem upon every sound principle of reason and justice, that such is a prudent 10. Postal Tel. Cable Co. of G. Con. Mines, 115 Mich. 629, 73 Texas v. Coate, 57 S. W. (Tex. N. W. 895, 41 L. R. A. 33. Civ. App.) 912. 13. Bell v. Globe Lumber Co., 11. Timm v. Michigan Cent. 107 La. 725, 31 So. 994. R. Co., 98 Mich. 226, 57 N.W. 116. 14. Gier v. Los Angeles Con. 12. WalkowsM v. Penokee & E. R. Co., 108 Cal. 129, 41 Pac. 22. 860 Masteb and Sekvant. § 336 course. The company have thus at hand peeuHar knowl- edge of the servant's fitness for the position which no inquiry could give it. It is better able to judge of the servant's fitness than either courts or juries. Where the facts alleged to show incompetency known to the company, were that an employee was placed on the Ust of conductors about eight months before the accident, after having been employed as brakeman for a somewhat longer period; and that on one occasion having made a mistake as to the rights of a passenger upon a freight, he had carried him beyond the place for which he had a ticket he complained of his own want of knowledge and told one of the company's agents, who had appointed him,, that he did not feel that he was competent to run a train; he was advanced from brakeman in accordance with a uniform custom; had maintained a good standing and no fault had been found except in the single instance told. It was held that incompetence did not appear. No question seems to have been raised as to the master's negligence in respect to the matter of selecting or promoting him.." The practice of promotion has been approved by other courts." It was held that negKgence in the employment of a head sawyer in a miU does not appear from the fact that he is promoted from the next lower grade instead of choosing a person of experience in the particular place. ^^ The Indiana court, however, is not in fuU accord with the view heretofore stated. In a case before that com't the facts were that a person had been in the service of a railroad company for six or seven years prior to the acci- dent, and that he had been promoted to the position of freight conductor within a period of less than a month before his train came in collision with another train. He imderstood the particular order, and its disobedience was 15. Michigan Cent. R. Co. v. HasMn v. Railroad Co., 65 Barb. Dolan, 32 Mich. 510. (N. Y.) 129. 16. Texas & N. 0. R. Co. v. 17. Kellogg v. Stephens Lum- Berry, 67 Tex. 238, 5 S. W. 817; ber Co., 125 Mich. 222, 84 N. W. 136. § 336 Eelating to Employment of Servants. 861 the result of thoughtlessness and a mistake. The court say: "The testimony preponderates strongly, we may say overwhelmingly, in favor of the general good char- acter, competency and skill of the conductor, whUe serving in the capacity of brakeman, and of his general qualifica- tions to act as conductor of a freight train. There was some testimony, however, from which the jury might have found that he was not possessed of sufficient familiarity with the time cards and with the technical language of train orders and was not sufficiently quick of apprehension to be able to construe and interpret an order in connection with a time card, so as to be competent to act as a conduc- tor of a wild train. In view of the fact that he had been promoted to the position of conductor but recently before the accident, and that more than ordinary vigilance and aptitude were required for the control and management of trains, such as the one he was intrusted with, and in view of the further fact that there is some evidence which tends to show that contrary to the requirements of the general rides of the company, he had been assigned to duty as a conductor without the usual inquiry or examination in respect to his qualifications, we are constrained to hold that the evidence tends to support what must have been the conclusions of the jury, viz., that he was in- competent as a conductor of a wild train, and that the railroad company was remiss in its duty in selecting bim for that service. "^^ It is familiar doctrine that it is essential to the UabiUty of the employer, that the particular act or omission, should have been in the line of the servant's known incom- petence." This rule must have been overlooked by the Indiana court. It will be observed that the act or omission charged was not due to any of the features upon which the court predicated its determination of incompetency. The omis- sion of duty was, as the court states, that of thoughtless- 18. Evansville & T. H. R. Co. 19. Kamp v. Coxe Bros. & Co., V. Guyton, 115 Ind. 460, 17 N. E. 122 Wis. 206, 99 N. W. 366. See 101, 7 Am. St. Rep. 468. also infra. 862 Masteb and Sebvant. § 337 ness. The employee forgot an order which he understood. If so, what difference did it make whether as to other orders or other matters, he was not of quick perception. He was competent, the court state, to ran a freight train but not a wild train; the negUgence of the master therefore was in selecting him to run the wild train. If incompetent solely by reason of a single act of forgetfulness to run a wild train, the same infirmity necessarily would render him incompetent to run a freight train. The distinction made by the learned court is , absolutely without support in view of the cause of the accident. Instruction as to promotion criticized. A federal court commenting upon a requested instruc- tion, viz., "that firemen after a certain period of service as firemen are promoted to engineers," etc., state: "This expression is objectionable. It assumes it to be a fact that promotions from the place of fireman to that of engi- neers were of uniform or at least customary occurrence after a certain period of service as fireman, without regard to the capacity, habits or temper of particidar individ- uals. There was no proof of such custom; none such of course has ever prevailed." ^^ Nature of employment to be considered. The selection of a servant must be made with a view of the nature of the employment. If it involves special knowledge or experience only men of special knowledge and experience should be employed. If the work may well be done by the unsldlled and inexperienced, it cannot be said that the master is lacking in the measure of care he owes to other employees should he employ unskilled and inexperienced men upon it.^^ § 337. Duty personal to the master. This duty is personal to the master, and, if delegated to an agent, superintendent or foreman, the responsibility 20. Louisville & N. R. Co. v. 21. Holland v. Tennessee Coal Kelly, 11 C. C. A. 260, 63 Fed. 407, I. & R. Co., 91 Ala. 444, 8 So. 524, 24 U. S. App. 103. 12 L. R. A. 232. § 337 Relating to Employment of Servants. 863 for its due and proper performance still remains with the master." Illustration of rule. The master's duty in the selection of a servant for the performance of a hazardous service, was held to be fuUy performed, where a defendant, a corporation, engaged in the preliminary work of the construction of a mill, was informed by one of the employees in charge of such work, that he had not the knowledge and skill required to set loads of dynamite in the frozen earth, which it was desired to have broken, and to explode them. Thereupon he was directed by the defendant to obtaia for this purpose a competent blaster from among the men in a neighboring quarry. Pursuant to this direction, such agent appHed to the person operating the quarry and was informed that a certain employee therein, was engaged at the quarry, and understood the business, and relying upon such infor- mation he was engaged to perform the required service. It was said that the conduct of the defendant's oflS.cers, in respect to the employment of such servant, was that of reasonably careful men, and acquits them of negligence in respect thereto; that the question was not whether such employee proved to be competent to perform the highly dangerous service, but rather, did the defendant act upon such information respecting the skiU and competency of such servant as that upon which ordinarily prudent men wiU act imder the same or similar circumstances.^' 22. Walker v. Boiling, 22 Ala. 271, 44 N. W. 270, 18 Am. St. Rep. 294; Tyson v. South & North Ala. 441; Baltimore & Ohio R. Co. v. R. Co., 61 Ala. 554, 32 Am. Rep. 8; Henthorne, 19 C. C. A. 623, 73 Hilton & Dodge Lumber Co. v. Fed. 634, 43 U. S. App. 113; Weeks Ingram, 119 Ga. 652, 46 S. E. v. Scharer, 49 C. C. A. 372, 111 895, 100Am.St.Rep.204;Laningv. Fed. 330; Brothers v. Cartter, 52 N. Y. Cent. R. Co., 49 N. Y. 521, Mo. 372, 14 Am. Rep. 424; Frazier 10 Am. Rep. 417; Ft. Smith Oil Co. v. Pennsylvania R. Co., 38 Pa. St. V. Slover, 58 Ark. 168, 24 S. W. 104, 80 Am. Dec. 467; Hanna v. 106; Chicago & Alton R. Co. v. Granger, 18 R. I. 507, 28 Atl. 659. May, 108111. 288; QuincyMin. Co. 23. Rankel v. Buckstaff-Ed- V. Kitts, 42 Mich. 34, 3 N. W. 240; wards Co., 138 Wis. 442, 120 N. Adams v. Iron Cliffs Co., 78 Mich. W. 269, 20 L. R. A. (N. S.) 1180. 864 Masteb and Sebvant. ^ 338 § 338. Retention of servant. The master's duty in respect to the employment of servants is not satisfied by the hiring of capable and com- petent persons in the first instance, but he is also required to exercise such an oversight and supervision of such serv- ants that if they afterwards become habitually or notori- ously incompetent or unfit by carelessness or bad habits to perform their duties, this incompetency, if long continued, should be discovered and guarded against."* And knowing or having good reasons to know of the unfitness of a servant, though competent when employed, his duty is to dismiss him from the service. " The duty of the master in this respect has been some- what dififerently stated and as indicating perhaps a more strict supervision. Thus it had been stated: "A master does not discharge his entire obligation in the matter of hiring servants by inquiring fully concerning an appU- cant's fitness at the time he takes him into the service. It is his duty to exercise proper supervision over the work of his servants and through such supervision to keep him- self advised as to the continued fitness of those in his employ." '° Such a rule certainly conflicts with the rule generally recognized that the master nxay rely upon the presumption that a competent servant continues to be so. It is declared that when competent servants have been once employed, the same degree of diligence is not thereafter required, and where a court had instructed: "If after a competent and proper person is employed, his habits become such that it is unsafe to trust him any longer in that capacity, the company is bound to use, through their proper officers, such reasonable care and diligence in ascertaining what 2^. Whittaker v. D. & H. C. Ave. St. R. Co., 196 Mass. 11, 81 Co., 126 N. T. 544, 27 N. E. 1042. N. B. 905. 25. Columbus C. & I. C. R. Co. 26. Baltimore & OMo R. Co. v. V. Troesch, 68 IE. 545, 18 Am. Rep. Hentiome, 19 C. C. A. 623, 73 Fed. 578; Cooney v. Commonwealth 634, 43 U. S. App. 113. § 338 Eelatinq to Employment of Servants. 865 the man is, after he is employed, as they would in his original employment," it was held manifest error.'"' It has been said, however, that it is the personal duty of railroad companies to keep a close watch on the habits and mental pecularities of the persons they employ as engiaeers.''* A master is required to exercise ordinary care in retain- ing servants in his employ. ^^ Presumption that competency and fitness continues. Until informed to the contrary, the master has the right to presimie an agent or officer, carefully chosen, will use good judgment in doing his duties, and he has a right to rest upon that belief, until in the exercise of that general vigilance which devolves upon him he finds he has been mistaken; and as aU men are liable to errors, no man can be bound to treat an agent as incompetent unless for some error or misconduct going to his general fitness for the place. '" Good character and quahfications once possessed may be presumed to continue and the master may rely upon that presumption imtil notice of change, or knowledge of such facts as would be equivalent to notice or such at least as would put a reasonable man on his guard." When notified not bound to discharge without inves- tigation. The master has a right to rely upon the presumption that the servant will continue careful and skillful, and when notified that he has become careless, he is not ordi- narily boimd to discharge him without an investigation of 27. Chapman v. Erie Ry. Co., 30. Michigan Cent. R. Co. v. 55N. Y. 679. Same rule laid down Dolan, 32 Mich. 510; Walkowski in Southern Pac. Co. v. Hetzer, v. Penokee & G. Con. Mines, 115 135 Fed. 272, 68 C. C. A. 26, 1 Mich. 629, 73 N. W. 895, 41 L. R. A. L. R. A. (N. S.) 288. 33. 28. Southern Pac. Co. V. Hunts- 31. Chapman v. Erie Ry. Co., man, 55 C. C. A. 366, 118 Fed. 412. 55 N. Y. 579; Blake v. Maine Cent. 29. Smith v. St. Louis & S. F. R. Co., 70 Me. 60, 35 Am. Rep. 297. R. Co., 151 Mo. 391, 52 S. W. 378, 48 L. R. A. 368. 1 M. & S.— 55 866 Masteb and Servant. §339 such charges, unless such notice is accompanied by such evidence as leaves no reasonable doubt as to the truth of such charge. A rule that would require the master to dis- charge a servant, carefiil and competent when employed, without investigation of a charge of carelessness, would be a harsh one and would often result in great injustice to employees.'^ § 339. Master's knowledge of incompetency. To recover for an injury caused by the incompetency of a fellow-servant, it must be shown that such incompetency was known or should have been known to the master in the exercise of ordinary care. The master's responsibihty is not for the negUgence of his servant but for his own. He does not warrant their competency.'' 32. Lake Shore & M. S. R. Co. V. Stupak, 123 lad. 210, 23 N. E. 246. 33. Blake v. Maine Cent. R. Co., 70 Me. 60, 35 Am. Rep. 297; Gier v. Los Angeles Con. El. R. Co., 108 Cal. 129, 41 Pae. 22; Alabama & F. R. Co. V. Waller, 48 Ala. 459; First Nat. Bank v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39; Union Pac. R. Co. v. Milliken, 8 Kan. 647; GiUen v. McAllister, 97 App. Div. 310, 89 N. Y. Supp. 953; N. O. J. & G. N. R. Co. V. Hughes, 49 Miss. 258; Big Stone Gap Iron Co. v. Ketron, 102 Va. 23, 45 S. E. 740, 102 Am. St. Rep. 839; Johnson v. Armour, 18 Fed. 490. A master cannot be charged with negligence on the ground that the injured servant was of less than average inteUigenee in the absence of evidence that he was chargeable with knowledge of that fact. Daniels v. New England Cotton Yarn Co., 188 Mass. 260, 74 N. E . 332. A master is not negli- gent in employing a workman who proved to be incompetent where prior to the act of the work- man complained of, no incompe- tency was suggested or known to the master, and all the workman's previous acts evinced care on his part. Bruce v. Penn Bridge Co., 197 Pa. St. 439, 47 Atl. 354. Notice of the incompetency of a servant given immediately before a change of ownership of a raihoad, the offi- cers and employees by order con- tinuing in their several stations, continued to be notice and bound the succeeding owner. McClure v. Detroit Southern R. Co., 146 Mich. 457, 109 N. W. 847. It is not suffi- cient to charge an electric railway company with knowledge of the incompetency of a conductor, to show that the latter was slow in ringing bells, was liable to get excited and give wrong signals, that his reputation for competency was not the best, and that he was short and had to stand on tip toe to reach the bell cord which made him slow in emergencies, where none of the witnesses had ever heard of his having an accident nor had reported § 339 Eelating to Employment op Servants. 867 Presumptions. The presumption is that the master has performed his duty and exercised proper care in the selection of the servant, and that he did not have knowledge of the defects of capacity or character charged.'* The burden of proof is therefore upon the plaintiff to show that the defendant failed in his duty to exercise that care which was required of him in making such selection. The mere fact of incompetency, where shown, is not suffi- cient to estabhsh such failure of duty. It is, however, true that in extreme cases the character of the testimony offered to estabhsh a servant's incompetency in fact, may be such as to warrant an inference that the master had notice or had failed to make proper inquiry." There must be some evidence tending to show that the master or his agent, in selecting an employee, had reason to know of his incompetency or failed to make such in- quiry as prudence required when he was employed. ^° him as incompetent to the company or the union, nor was such testi- mony sufficient to show that the company should have removed him had it known all such facts. Seecombe v. Detroit Elec. Railway, 133 Mich. 170, 94 N. W. 747. 34. Davis v. Detroit & M. R. Co., 20 Mich. 105, 4 Am. Rep. 364; Michigan Cent. R. Co. v. Dolan, 32 Mioh. 510; Michigan Cent. R. Co. V. Gilbert, 46 Mich. 176, 9 N. W. 243; Stafford v. C. B. & Q. R. Co., 114 m. 244, 2 N. E. 185; Columbus C. & I. C. R. Co. V. Troesch, 68 111. 545, 18 Am. Rep. 578; Chicago & Eastern 111. R. Co. v. Geary, 110 111. 383; Hilton & Dodge Lumber Co. V. Ingram, 119 Ga. 652, 46 8. E. 895, 100 Am. St. Rep. 204; Hil- ton V. Fitchburg R. Co., 73 N. H. 116, 59 Atl. 625, 68 L. R. A. 428. 35. Murphy v. St. L. & I. M. R. Co., 71 Mo. 202; McDermott v. H. & St. J. Ry. Co., 87 Mo. 285: See Roblin v. K. C, St. J. & C. R R. Co., 119 Mo. 476, 24 S. W. 1011 Gier v. Los Angeles Con. E. R. Co. 108 Cal. 129, 41 Pac. 22; Kindel v, Hall, 8 Colo. App. 63, 44 Pac. 781 Wright V. N. Y. C. R. Co. 25 N. Y 562; Reiser v. Pennsylvania Co. 152 Pa. St. 38, 25 Atl. 175, 34 Am St. Rep. 620; Ohio & M. R. Co. v Dunn, 138 Ind. 18, 36 N. E. 702^ 37 N. E. 546; LatremouiUe v. Rail- way Co., 63 Vt. 336, 22 Atl. 656 Mayor of Baltimore v. War, 77 Md. 593, 27 Atl. 85; Southern Cotton Seed Oil Co. v. Devond, 25 S. W. (Tex. App.) 43; Long v. McCabe & Hamilton, 52 Wash. 422, 100 Pac. 1016; Dysart v. Kan. City, Ft. 8. & M. R. Co., 145 Mo. 83, 46 S. W. 751. 36. Lee v. Detroit Bridge & Iron Works, 62 Mo. 565. 868 Masteb and Sesvant. § 339 Where tlie evidence failed to show how much inquiry was made by the employer before hiring an engineer to run a cage in a mine, and the only proof of incompetency was that on one other occasion while such engineer was in charge, the cage descended with great force, but for what reason did not appear, the superintendent warning him not to run the cage too rapidly, it was not sufficient to sustain the charge of negligence in employing an incom- petent engineer.*^ Knowledge of the incompetency of a conductor, how- ever, was chargeable to the master where it appeared the former was imable to understand orders in respect to meet- ing of trains and his experience was limited. '^ And where an employer fails to make inquiry as to the competency of a servant in fact incompetent, when such inquiry would have disclosed his incompetency, he is chargeable with knowledge of his incompetency.^' Where the injury to an employee was alleged to be due to the unfitness of the engineer in charge of defendant's hoisting apparatus, and there was no evidence as to the care or want of it exercised in the employment of such engi- neer, or that he was not in fact competent at the time he was employed, it was said: "In such case the law pre- sumes that the employer exercised due care in the em- plo3nnent of such servant. If thereafter in the course of his employment he became incompetent, careless or so inattentive to his duties as to render him, an unsuitable person to be retained in such emplojrment, the burden was on the plaintiff to show such fact, and further to show that defendant company either had actual notice of such subsequently acquired habits or carelessness or inatten- tion on his part, or that they were so marked or notorious that knowledge thereof would have come to the defendant had it given proper attention to its duties." *" 37. Wloklund v. Saylor Coal 39. Pearson v. Alaska, Pac. S. S. Co., 119 Iowa, 335, 93 N. W. 305. Co., 51 Wash. 560, 99 Pao. 753, 38. Still V. San Francisco & 130 Am. St. Rep. 1117. N. W. R. Co., 154 Cal. 559, 98 Pac. 40. M'Charles v. Horn SUver 672, 20 L. R. A. (N. S.) 322, 129 M. & S. Co., 10 Utah, 470, 37 Pao. Am. St. Rep. 177. 733. § 339 Eelating to Employment or Servants. 869 Notwitlistanding the almost universal recognition by courts of the principle above declared, the Mionesota court held a contrary view. *^ A statement in an opinion rendered by the Supreme court of Wisconsin might be so construed as to support the contention of the Minnesota court, bat it is submitted that the court did not so intend. Thus, where a com' plaint alleged that the plaintiff was engaged as a stevedore by the defendant, and while engaged in unloading one of its vessels, was injxired by falling through a hatchway neghgently left open, it was held that the complaint stated a cause of action. It was said: "If it had appeared that the negligence was that of the mate, and it were conceded that such mate was a co-employee, it would still be incumbent upon the defendant to show affirmatively that the mate was a competent person for the position, and that the defendant had furnished all necessary appliances to protect the hatchway. These are defensive facts and there is no presumption of the existence of either of them in the absence of affirmative proof." ^^ This case has not been approved or referred to. Burden on plaintiff not only to show incompetency but master's knowledge. Practically aU the cases agree, as already stated, that it is incimibent upon the employee who seeks to recover 41. Thus it was stated by that and had operated the elevator proi)- court: "It is the law of this state erly for twelve days, whose negU- that a prima facie case of negli- gence ia handling the lever con- gence is made out against the mas- sisted in starting it too rapidly on ter if it is proved that at the time the occasion of the injury to a of his employment, the servant fellow employee, was for the jury, whose negUgenoe has caused an- as well as the negligence of the other to be injured, was incompe- master in employing him or retain- tent and unfit to perform the service ing him in his employ. Upon a sec- required of him, and the burden ond appeal a judgment in favor of is then on the master to disprove plaintiff was affirmed. Nutzmannv. his own negligence." It was held Germania life Ins. Co., 78 Mimi. that the question of the incompe- 504, 81 N. W. 518. See also Cran- tency to operate an elevator of dall v. MoHrath, 24 Minn. 127. one who had been instructed before 42. Haley v. Western Transit his employment on two occasions, Co., 76 Wis. 344, 45 N. W. 16. 870 Masteb and Sebvant. § 339 from the master for the carelessness of a f eUow-servant, to prove knowledge either actual or constructive, on the part of the master, of the servant's incompetency, which pre- cludes a contention that the master must in fact show that the servant was competent. The injured servant, to main- tain his action, must show not only that the servant was incompetent, whether by reason of habitual carelessness or otherwise, but that the master was chargeable with notice thereof. No burden is cast upon the master either to show ia the first instance that the servant was compe- tent or that he was not chargeable with knowledge of his incompetency. There is no presumption that a servant is incompetent or careless.^' A presumption of fitness arises which continues until overcome by proof of specific acts or conduct tending to show incompetency and negligence, which either came to the master's knowledge or which by the exercise of ordinary care he ought to have known. ** Conflicting decisions in Michigan. The Supreme court of Michigan seems to be in accord with the Minnesota court. In a case before that court, it was assumed that an employee whose experience had been that of a messenger, car checker and train master's clerk, was incompetent to perform the duties of yard master. It was said: "In the absence of any evidence as to the exercise of any care in his selection, proof that a servant who has been in the service but two or three weeks was incompetent when employed, need not be supplemented by proof of the company's knowledge of his incompetency. The presumption that the company had done its duty is overcome by proof that the servant was incompetent when employed. Notice is required when a servant, competent 43. Beasley v. S. J. Fruit- 143 Ind. 49, 41 N. E. 709, 42 N. E. PaoMng Co., 92 Cal. 388, 28 Pac. 352. 485; Gierv. Los Angeles Con. B. R. 44. Grams v. C. Reiss Coal Co., Co., 108 Cal. 129, 41 Pao. 22; 125 Wis. 1, 102 N. W. 586. Evansville & T. H. R. Co. v. Tohill, § 339 Relating to Employment of Servants. 871 wlien employed, becomes incompetent, but not when the incompetency existed at the time."^^ It was subsequently stated by the same court that in order to charge the master with habUity for the acts or omissions of an alleged incompetent servant, it must appear that the master had been neghgent either in the employment or retention of the servant, the burden of proof being upon the plaintiff.^* If the language used, though general in character, was intended to apply only to the particular facts of the case under review, then the determtaation would not be con- sidered much out of line, for it could be said that the knowledge possessed by the master was, as matter of law, conclusive upon that question, but to declare the broad rule that when incompetency is shown to have existed at the time of the hiring, the burden changes and with it the presumption that the master has performed his duty, is supported neither by authority or logic. It might, with the same propriety, be said that when an accident happens proof of the accident is sufficient to throw upon the master the burden to show he was not neghgent, or in ease of a crime to throw the burden on the accused to prove he was not guilty. Where employee of intemperate habits. It was held by another com-t that, where it appears by direct evidence that a conductor is a man of intemperate habits, it casts upon the defendant the bm-den of proving that he was not intoxicated at the time of an accident chargeable to his neghgence, and that he had exercised proper care. It was said: "It is certainly incumbent upon railroad companies to employ none but sober men on their roads. Where a habit of intoxication is shown, it raises, in the case of an accident, a presmnption of negligence which should stand imtU rebutted."*' 45. Lee v. Michigan Cent. R. 47. Pennsylvania R. Co. v. Co., 87 Mich. 574, 49 N. W. 909. Brooks, 57 Pa. St. 339, 98 Am. 46. Seoeombe v. Detroit Elec. Dec. 229; Huntington, etc., R. Co. Ry., 133 Mich. 170, 94 N. W. 747. v. Decker, 82 Pa. St. 119, 84 Pa. ,St. 419. 872 Master and Servant. § 339 But it is also held that mere proof that the reputation of a servant is so notorious as to his drinking habits, that the defendant must be charged with knowledge of it, is not sufficient when there is no evidence that he was in- toxicated at the time of the accident. ** These cases are not parallel with those cited relating to presumptions affecting the master, they relating to presumptions affecting the offending servant. Yet it seems that the first of these last two announces a strange doc- triae which is, in effect, that a man addicted to the use of intoxicating liquor, is presumed to be always drunk, or so far under its influence as to be incompetent to perform a particular service. If this were to prevail to what extent would business men of the world be held to be incompetent? Rule where negligent servant a vice principal. Where the injury is occasioned by the incompetency or carelessness of a vice principal, the master is liable, whether he knew of such incompetency or not, provided the injured servant did not have knowledge thereof.'" Insane employees. The medical superintendent of an insane asylum is not liable for injuries sustained by a fellow-servant through the action of an inmate working with him, where such injured employee had worked several weeks with knowl- edge that insane inmates were thus employed, in the absence of any proof of negligence of the superintendent in selecting imskillful subordinates, or that he had knowl- edge that the inmates selected were dangerous or unskill- fid or Miat they were in fact so, or that the accident happened through any unskillfulness of the oflS.cers or inmates.^" 48. Cosgrove v. Pitman, 103 50. Atkinson v. Clark, 132 Cal. Cal. 268, 37 Pac. 232. 476, 64 Pac. 769. 49. McDermott v. H. & St. J. Ry. Co., 87 Mo. 285. § 339 Eelating to Employment of Servants. 873 What must appear to charge master with knowledge. Although it appear that omissions of duty such as caused the injury have been habitual for some time prior, unless the master has actual notice of the omission or unless the negligence is such as to leave traces or evi- dence of it in the work itself, which covild be seen and observed by another, or unless the delinquencies were fre- quently displayed under the observation of some officer or foreman who represents the master, and who had power to discharge the negligent employee, the law will not imply notice to the master so as to charge him from the lapse of a certain time since the employee so began to neglect his duties, as where a switchman testified he had habitually violated the rule regarding the guarding of switches for four months.^^ Previous record may be shown. Where the claim was that a railroad company was negli- gent in the employment of a night operator, it was held competent for the plaintiff to show the operator's entire record as such, whether the facts were actually known to the defendant or not, because, if they were facts of such a character that the defendant might by reasonable dihgence have known them (which was a question for the jury) then it ought to have known them. Therefore it was com- petent to show what his experience had been with other railroad companies, because it was for the jury to say whether such facts might not have been known by the defendant had it made proper inquiry, ^^ Deafness. It seems to have been held that the mere fact that a servant was incompetent by reason of shght deafness was sufficient to charge the master, as no reference is made in the opinion as to the neghgence of the master in not ascertaining the fact. In fact, the charge of the court, which was approved, was to the effect that the 51. Cameron v. N. Y. C. & H. 52. Baltimore & 0. R. Co. v. R. R. Co., 145 N. Y. 400, 40 N. E. 1. Camp, 13 C. C. A. 233, 65 Fed. 952. 874 Masteb and Sebvant. § 339 servant was incompetent for such cause, and the plaintiff was entitled to recover." Track repairer as engineer. Where a railroad company placed upon one of its yard engines, as engiaeer, an employee who had worked in the capacity of a track repairer, upon his own reconxmendation as to fitness, and he had had no experience in the business of running engines, and the plaintiff was injured by reason of his incompetency in fact, it was held that the company was chargeable with negligence in the employment and retention of an incompetent servant. ^^ Slight experience and previous misconduct. Where the proof showed that a conductor's experience consisted of his service as such for six weeks next preceding the accident, during two of which he was suspended for neglect or improper performance of duty, and that the assistant superintendent, during the suspension, refused to give him a letter of recommendation, it was held that this was sufficient to justify a jury ia finding the employer guilty of a want of proper care in the retention of an incompetent servant. ^^ Habitual use of intoxicating liquors for six months. If a railroad engineer is addicted to the habitual use of intoxicating Uquors to such excess that his intoxicated condition is observed by employees coming in contact with him for a period covering several months time before an injury to an employee, caused by reason of his intoxi- cation, and if, by inquiry, the officers of the company, during that time, would have discovered his habits, the omission to make inquiries would be negUgence, as culpa- ble as if they had employed a notoriously incompetent 53. New York & T. S. S. Co. v. Co. v. Wilder, 116 lU. 100, 5 N. E. Anderson, 1 C. C. A. 529, 50 Fed. 92. 462. 55. Neilon v. K. C, St. J. 54. United States Rolling Stock & C. B. Ry. Co., 85 Mo. 599. § 339 Eelating to Employment of Servants, 875 engineer without inquiry, and they would be liable, though they had not actual notice.^* Attention of officers called to employee's intemperate habits. Where the officers of a railroad company have had their attention called to the intemperate habits of an employee, it is their duty to make careful and frequent investigations as to the fact, if they retain him in their service. And if a servant has been repeatedly guilty of carelessness or incompetency, it becomes a question for the jury whether the master Imew of it, or would have known of it had he exercised ordinary care." General reputation. If the servant's general reputation before employment is so notorious as to unfitness as that it must have been known to the master but for his (the master's) negligence in not informing himself, or if he could have been ignorant of it only because he failed to make investigation, then it is obvious that he has not used the care and caution which the law demands of h\vn in selecting his employees; and hence the servant's general reputation for imfltness may be sufficient to overcome the presumption that the master used due care in his selection, even though actual knowl- edge of such reputation for unfitness on the master's part is not shown.** Employment of inexperienced person without inquiry. Where a young man applied for a position as a brake- man, to a general train dispatcher, who informed him that if he went to a place where it was the custom of the com- pany to have extra men to supply the place of those who were sick or temporarily absent he might get a job, which he did, and was placed on the books as an extra, and it 66. Hilts V. C. & G. T. R. Co., v. Hoover, 79 Md. 253, 29 Atl. 994, 55 Mich. 437, 21 N. W. 878. 25 L. R. A. 710, 47 Am. St. Rep. 67. Michigan Cent. R. Co. v. 392. Evidence as to, see infra, this Gilbert, 46 Mich. 176, 9 N. W. 243. chapter. 58. Norfolk & Western R. Co. 876 Masteb and Sebvant. § 339 appeared that his experience consisted of two or three trips over the road, that he was not famiKar with the rules and duties pertaining to the flagging of trains, and that he was selected by a conductor for such purpose and through ignorance the duty was improperly per- formed, whereby a collision resulted, it was held that it thus appeared that no effort was made to ascertain his experience or qualifications for the very responsible posi- tion of brakeman, and this was sufficient at least to shift the burden upon the defendant to show what diligence had in fact been used.^* Large experience as switchman, none as conductor. Knowledge of the incompetency of a conductor in charge of a work train, was shown where it appeared he was a man of large experience in raUroading, as a switch- man in a yard and engine foreman, but had no experience as a conductor. That in 1904 he apphed for the position and the superintendent stated he did not think him com- petent to put on a work train. In January, 1905, the superintendent stated he did not think him competent. He had no experience between that time and Jime, 1905, when presumedly he was put in charge of the train. The court state that "The general rule is that a person before being permitted to run a train as conductor, must serve a term as brakeman and then submit to an examination."^" Personal knowledge unnecessary. An employer need not have had actual knowledge that a servant had become incompetent since his employment in order to render him Hable to another servant for injuries caused by negUgence of the incompetent servant. It is sufficient if, in the exercise of reasonable care, the employer should have learned of such incompetency.^^ 59. Mann v. Prest., etc., D. & 61. Johnson v. St. Paul & H. Canal Co., 91 N. Y. 495. Western Coal Co., 126 Wis. 492, 60. Smith v. Chicago P. & 105 N. W. 1048. St. L. R. Co., 236 HI. 369, 86 N. E. 150. ^ 339 Eelating to Employment of Seevants. 877 It is not necessary that the evidence of a servant's incompetency should be brought to the personal knowledge of the master, but if it continues for such a length of time as that a careful supervision of its business ought to bring it to his knowledge, he is chargeable with notice of its existence. This was said where it appeared that engineers in the employment of a railroad company frequently permitted their engines to remain stationary upon the main tracks in violation of its rules. ^ ^ Knowledge by officer in charge. It is not the company, but their officer having charge of the department of the business relating to the employ- ment of servants, who is expected to use ordinary care in the emplo3rment of servants. His carelessness in this respect is theirs and his knowledge is theirs. It was held error to reject evidence tending to show that the superintendent of a railroad company did not have knowl- edge that a conductor was a careless officer.*^ Knowledge by one having authority in the premises. Notice of the incompetency of a feUow-servant must be had by one who has authority in the premises to bind the master. Hence, it was held that notice of the incom- petency of a telegraph operator given to the chief train dispatcher of a railroad company was not sufficient to charge the company, when it appeared the dispatcher had no power to employ or discharge operators.®* However, it was stated that knowledge of the incompe- tency of a servant need not be brought to the superior officers of a company retaining him in its service. It is sufficient to charge the company that such knowledge is possessed by such inferior officers as have supervision of his work and have the authority to suspend him tem- 62. Whittaker v. D. & H. C. 467. See also Coucli v. Watson Co., 126 N. Y. 544, 27 N. E. 1042. Coal Co., 46 Iowa, 17. 63. Frazier v. Pennsylvania R. 64. Reiser v. Pennsylvania Co., Co., 38 Pa. St. 104, 80 Am. Dec. 152 Pa. St. 38, 25 Atl. 175, 34 Am. St. Rep. 620. 878 Masteb and Servant. § 339 porajily for such, incompetency, though the authority to discharge rests in others.*^ A railroad company employed a competent and skillful agent whose duty it was to employ men for a particular department of its service. The agent hired a foreman who was competent at the time, but subsequently ac- quired habits of iatoxication which rendered him at times incompetent. This was known to the employee who was thereafter injiired by the alleged incompetency of such foreman, and also to the agent who employed him. Such foreman directed two unskilled men to construct a scaf- fold, which they did, but by reason of the selection by them of improper and insufficient materials it feU while the plaintiff, an employee, was working upon the same, causing him injury. It was held that it was negligence chargeable to the master in retaining such foreman in its employ after knowledge by its agent of his habit of intoxication.** It was said in another case that a railroad company was negligent in permitting its order forbidding firemen to handle engines to be violated by engineers, and retaining such of the latter in its employ after knowledge of their practice of thus abandoning engines, when such practice led to the placing of an engine in the hands of a careless and incompetent fireman, whereby injury resulted to an employee. Notice to the master mechanic, whose duty was to employ engineers and fltremen, of such practice was held chargeable to the company." Knowledge of or notice to a foreman may be sufficient to charge the naaster with notice,** and knowledge by the 65. Baltimore & Ohio R. Co. v. gines and engineers and make Henthome, 19 C. C. A. 623, 73 Fed. reports to his superior, had heard 634, 43 U. S. App. 113. that an engineer was drinking too 66. Laning v. N. Y. C. R. Co., much, was held to be sufficient 49 N. Y. 521, 10 Am. Rep. 417. evidence from which the jury might 67. Ohio & Mississippi R. Co. conclude that the company knew of V. Collarn, 73Ind. 261,38Am. Rep. his drinkii^ habits, where such 134. habit existed as matter of fact. 68. The fact that the foreman Williams v. Missouri Pac. R. Co., of defendant's round house, whose 109 Mo. 475, 18 S. W. 1098. Notice duty it was to look after the en- of the incompetency of a servant to § 339 Eelating to Employment of Sebvants. 879 general agent of the defendant of the unfitness of the captain of a tug for his position will be imputed to defend- ant/* So knowledge of a superintendent of a street railway/" or other superintendent,'^ or of a conductor of the reck- a foreman who has supervision of the -work, and had power to dis- charge employees in. case of incom- petency, is notice to the employer. Johnson v. St. Paid & Western Coal Co., 126 Wis. 492, 105 N. W. 1048. It was said that when an employee is injured by the negligent act of another servant resulting from the latter's intoxication, and the em- ployer knew of his intemperate habits and the plaintiff did not, the employer is liable for the injury; and it is immaterial whether the servant causing the injury was a fellow-servant of the one injured or his superior. Hence, when it was shown that a laborer in a quarry was injured while holding a wedge which was struck a violent and uimecessary blow by another serv- ant at the direction of a foreman who was intoxicated at the time and who had formed the habit of intoxication which was known to the person who had control of the work, it was held that the master was liable, upon the ground of re- taining in his employ an incom- petent servant with knowledge of his unfitness. Maxwell v. H. &, St. J. R. Co., 85 Mo. 95. Where a oar repairer while at work in a railroad yard was injured in a colli- sion caused by the negligent mis- placing of a switch by a switchman who was drunk at the time, it was held that evidence that the switch- man had been drunli some weeks before and in that condition had caused a similar accident was com- petent, it appearing that the cir- cumstances had been reported to defendant's foreman, who had authority to employ and discharge men. Wabash Western R. Co. v. Brow, 13 C. C. A. 222, 65 Fed. 941. 69. Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338. 70. The knowledge of the assist- aix^ superintendent of a street railway company, charged with the duty of supervising the operation of cars, that a motorman was in- competent and would not be able to run a car properly, which knowledge was commimicated to the super- intendent, must be imputed to the company. Cooney v. Common- wealth Ave. St. R. Co., 196 Mass. 11,81N.E.905. 71. The master was chargeable with knowledge of the incompe- tency of a servant who negligently started an engine, by evidence that the master's superintendent was about the works every day and most of the time, and that he not only saw some of his negligent acts, but spoke of his incompe- tency and at times took the control of the engine away from him and ran it himself. McCaU's Ferry Power Co. v. Price, 108 Md. 96, 69 Atl. 832. 880 Masteb and Servant. §339 lessness of the engineer, ''^ has been imputed to the master. But knowledge of a pit or shift boss in a mine, as to the incompetency of a miner, has been held not imputable to the master in certain cases.'' Where employment exceedingly dangerous. The master is not reheved from responsibihty where he sends an inexperienced and incompetent servant to repair a live wire and by reason of such incompetency injury is caused to another servant, by the fact that the master did not know of his incompetency. It seems to be held that in emplo3Tnents of such dangerous character the master is called upon to exercise great care aaid is change- able with knowledge of the incompetency of a servant so employed.'* Admissions by servant as to his incompetency. Statements by a servant to his master asserting his in- competency do not necessarily charge the master with knowledge that the servant is in fact incompetent.'^ 72. East Tenn., V. & G. R. Co. and at the time in question he gave V. Wright, 100 Tenn. 56, 42 S. W. such signal -without receiving a 1065. signal from below, and such knowl- 73. Knowledge by a shift boss edge on the part of the defendant in a mine, who had no authority to was sought to be proven by the hire, discharge or suspend members testimony of witnesses that on of the crew under him, and being a several occasions before, the eleva- feUow-servant, that an employee tor had been moved without signal had at other times been careless, is from below, which was known to not notice chargeable to the master, the pit boss, and it appeared that The careless act complained of was the pit boss had no authority over the dropping of a jack screw in the such dumper or men working at shaft of a mine. Otherwise where the top of the mine, it was held the supervising employee had the ■ that there was no evidence that the power to hire and discharge em- defendant had notice that the dum- ployees. Weeks v. Seharer, 49 per employed at the time of the C. C. A. 372, 111 Fed. 330; Weeks accident was habitually negligent V. Seharer, 64 C. C. A. 11, 129 Fed. or incompetent. Acme Coal Min. 333. Where it was alleged that the Co. v. Molver, 5 Colo. App. 267, defendant had knowledge of the 38 Pac. 596. unfitness of a dumper in a mine for 74. Scott v. Iowa Telephone the position, his duties among Co., 126 Iowa, 524, 102 N. W. 432. others being to signal the engineer 75. Where a boy sixteen years to start the hoisting machinery, old, of average size and apparent § 340 Eelating to Employment of Sebvants, 881 § 340. What constitutes incompetency. Incompetency in the law of negligence means want of ability suitable to the task, either as regards natural quahties or experience, or deficiency of disposition to use one's abOity and experience properly.''^ It exists not alone in physical or mental attributes. It goes to reliabUity in all that is essential to make up a reasonably safe person, considering the nature of the work and the general safety of those who are required to associate with such persons in the general employment.''^ A negligent person at a position requiring care and caution, is incompetent. Incompetency includes a want of qualification generally.''* But an incompetent servant need not necessarily be a negUgent servant.''' Btrength had been employed as a shifter to a moulder in a foundry for some months, and it appeared, how- ever, that his arm had been broken, which fact was unknown to his immediate superior, and that on the morning of the accident he told such superior he was not strong enough to do the work, though his arm was in its customary condition, and he was feeling as strong as usual, and in the manner of doing his work some of the metal was not removed as it should have been done, and as a result the moulder in performing his duties fell over on such piece and was severely injured by the hot metal, which injuries, it was claimed, were due to the incompetency of such boy, it was held that such superior had the right to assume that he was dealing with a boy of average strength, and that notwithstanding the boy's statement, he was justi- fied in instructing him to go to work. It was said that where the work to be done requires only suffi- 1 M. & S.— 56 cient strength and a moderate degree of intelligence, the employer must, in selecting servants, exercise only that reasonable care which an ordinarily careful man exercises under such circumstances, and not such as will reduce the danger of accident to a minimum. Jungnitsoh V. Michigan M. I. Co., 105 Mich. 270, 63 N. W. 296. 76. Hamann v. Milwaukee Bridge Co., 127 Wis. 550, 106 N. W. 1081. 77. Maitland v. Gilbert Paper Co., 97 Wis. 476, 72 N. W. 1124, 65 Am. St. Rep. 137. 78. The Elton, 131 Fed. 562. 79. Nofsinger v. Goldman, 122 Cal. 609, 55 Pao. 425; Baird v. N. Y. Cent. & H. R. R. Co., 64 App. Div. 14, 71 N. Y. Supp. 734. A complaint based upon the em- ployment of an incompetent serv- ant stating that the plaintiff was injured by such servant carelessly throwing slush and dirt upon Viiin while removing same from the sur- face of a quarry, and alleging as 882 Masteb and Sebvant. § 340 Ignorance of English language. Incapacity to perform a required service amounts to incompetency. It is one of the features of incompetency. What constitutes incompetency or incapacity depends on and varies with the nature of the duties the servant is called upon to perform and their relation to other persons. Thus it is evidence of iacompetency, because showing a want of capacity, that an employee engaged in operattug a machine in connection with another employee, both being essential to its successful operation, could not speak English or understand it but imperfectly, and who iastead of obeying the order to turn the power off turned it on.*" Where, however, only manual labor is required and there is no occasion for the exercise of discretion and no expectation of co-operation with other laborers, servants of divers tongues may with propriety be employed to work in the same company.*^ So the master is not Uable in employing servants not understanding English where he could not anticipate an accident from such inability.** Physical infirmity. The incompetence of a servant may result wholly from his physical condition.*' particular acts of incompetency 82. Date v. New York Glucose weakness of mind, carelessness and Co., 114 App. Div. 789, 100 N. Y. recklessness in his work, ignorance Supp. 171. in the handling of tools and mate- 83. Baird v. New York Cent, rial, inexperience in handling slush & H. R. R. Co., 64 App. Div. 14, 71 or dirt and inability to speak N. Y. Supp. 734. It appearing that English and understand instruc- an employee engaged in operating tions, was held sufficient to show an elevator had been discharged incompetency upon demurrer. Hall about a year before the accident V. Bedford Quarries Co., 156 for a cause not shown, but came Ind. 460, 60 N. E. 149. back in about two months, tha.t he 80. Beers v. Isaac Prouty & was physically infirm, that his Co., 200 Mass. 19, 85 N. E. 864, 20 peculiarities and imfirmaties were L. R. A. (N. S.) 39, 128 Am. St. open to observation, that his gen- Rep. 374. oral reputation was that of being 81. Friberg v. Builders Iron & infirm bodily and mentally, and Steel Co., 201 Mass. 461, 87 N. E. weak, nervous and excitable, the 897, 131 Am. St. Rep. 412. question of his incompetency and § 340 Relating to Employment op Sebvants. 883 Inexperience and want of skill. As to many kinds of work, even a wholly inexperienced and unskilled person may be competent to perform. As to other kinds of work, it is clear that one entirely without experience or thorough coaching would be utterly incom- petent. The question here considered relates to the employment and retention of servants who are practically inexperi- enced in the particular work or service, and where other servants are exposed to perils by reason thereof. The per- sonal duty of the master to exercise reasonable care in the selection of his servants, with reference to their fitness and comi)etency for the particular work required, imposes an obligation upon him that he shall not knowingly subject them to imnecessary peril by reason of the selection of one or more that are unfit for the service by reason of their negligence on the part of the em- ployer in retaining him in the service, were for the jury. In that case, an employee having something to do in the pit, was in- jured by the elevator coming down after the operator had told him to take the elevator to the upper floor. Ledwidge v. Hathaway, 170 Mass. 348, 49 N. E. 656. An employee was injiu-ed and the alleged grounds of negligence was that a pile of logs were decked on two skids negligently placed too close together and resting inse- curely on soft boggy ground, such pile breaking causing the injury complained of. It was held it was for the jury to determine whether the employer was negligent in putting in charge of the work or to lay or deck the logs a fellow- servant who had the use of only one hand. Caron v. Powers-Simpson Co., 100 Minn. 341, 111 N. W. 152. Nekvoubness of engineer OPBBATINQ DERRICK CAR. Where it appeared that at the time of the employment of workmen on a bridge, the foreman objected to the employment upon the derrick car of the engineer, to defendant's agent employing the men, that he did not like the way he handled the oar; that on several preAdous occasions when working in another place such foreman made similar complaint; that such engineer was handling it nervously, that the foreman was afraid of it, that he (the engineer) was nervous and foolish, that he was liable to run over some one; and the foreman described in his testimony what nervousness he observed, and such employing agent replied, ."it don't take much of a man to run a derrick car, anybody can run it," there was evidence of negligence in retaining in the service an incompetent servant. Olsen v. Andrews, 168 Mass. 261, 47 N. E. 90. 884 Mabteb and Sebvant. § 340 inexperience in the partieulaj work reqiiired. This rule does not go to the extent that none but experienced persons shall be employed in any undertaking, but only to those employments which require sMU or experience for their proper and safe operation. It is the master's neghgence that is involved and not the neghgence or want of skill or experience of the feUow-servant, only to the extent that such neghgence, want of skill or experience, bears upon the question of the master's failure of duty. Inexperience is not necessarily incompetence. For instance, it is not neghgence in a railroad company to em- ploy a brakeman of age who is physically and mentally qualified for the position, merely because he has not yet had experience therein.** Nor to put a section hand at work in loading ties upon a hand car, without inquiring into his experience or giving him special instructions if otherwise he appears to be competent.*^ Yet in one case it was held that employees operating a hand car were incompetent by reason of inexperience. The act of incompetency was in pushing up instead of pressing down the handle bars on the occasion of the injury.** That a common laborer without experience so im- properly handled a machine with a shifting gear, which to handle properly required some experience, whereby injury was caused to another employee, was held to be some evidence of his incompetency for the service.*^ And where servants engaged in unloading a vessel, using the apphances provided therefor, were without experience in that kind of work, it was held they were 84. Gorman v. Minneapolis & Co. v. Martinez, 57 S. W. (Tex. St. L. R. Co., 78 Iowa, 509, 43 N. Civ. App.) 689. W. 303. 87. Frazer & Chalmers v. 85. Timm v. MicHgan Cent. Schroeder, 163 111. 459, 45 N. E. R. Co., 98 Mich. 226, 57 N. W. 116. 288. 86. International & G. N. R. § 340 Reflating to Employment of Seevants. 885 incompetent and that the master was chargeable with knowledge thereof.*^ However, the mere fact that a superintendent engaged in the work of blasting rock had not had experience in the use of dynamite for blasting, is not sufficient to show incompetency, where he testified he knew how it ought to be done. ^' A distinction should be made between an act purely of carelessness and one resulting from inexperience. The master may be Uable for injury residting from the latter, but not the former, as such may be the negligence of a fellow-servant.°° 88. Bartley v. Boston & N. St. R. Co., 198 Mass. 163, 83 N. E. 1093. 89. O'NeU V. O'Leary, 164 Mass. 387, 41 N. E. 662. 90. Thus, where a switohman neglected to close a switch, he being engaged at the time in conversation with another, and as a result a train was thrown from the track, and the fireman killed, it appearing that the switchman had been in the defendant's employ for seven years; until three months before the accident, as baggageman at the station; occasionally acting as switchman; and that he had per- formed the duties of switchman for three months; it was held the ques- tion of his competency must relate to the time of the injury and as he had performed such duties for three months without fault or neglect, and was a man of ordinary intelligence, he was clearly compe- tent to perform those duties. That his failure to close the switch did not arise from inability to per- form the duties, but was the result of inattention and carelessness; that therefore the injury was caused by the negligence of a co-employee for which the defendant was not liable. Harvey v. N. Y. C. & H. E. R. Co., 88N. Y.481. Where the ground for recovery by an employee who was injured was that a fireman alleged to be incompetent was allowed to be in charge of the engine, and it appeared that, while he was coup- ling cars on a siding at the rear of a train with twenty cars, the train moved slowly back until within about six feet of the car to be attached, when the train or hind car suddenly came back, catching his hand, it was said: In order to establish the incompetency of such fireman, the plaintiff must prove (1) that the fireman was so inex- perienced in the management ol' an engine that it was not an exercise of ordinary care to place him in charge thereof, he not being rea- sonably safe and fit for the em- ployment; (2) that he was guilty of mismanagement of the engine by reason of his Luexperience and un- skiUfulness; (3) that such misman- agement was the proximate cause of the plaintiff's injury. The evi- dence introduced by the plaintiff was (1) the failure of the fireman to respond to certain signals at a 886 Master and Servant. §340 On the question of experience, the competency of a fire- man promoted to engineer has several times been con- sidered," as has the competency of a fireman or other station; (2) the testimony of tlie conductor that the fireman was not known and recognized to be a skilled engineer; (3) and the acci- dent itself. It was held that this proof was insufficient. It was fur- ther said: If the accident hap- pened from the negligence, and not the incompetency, of the fireman, the defendant is not liable; and that the mere fact of the accelerated speed of the cars under the cir- cumstances could not be attrib- uted solely to incomi)etency. Core V. Ohio River R. Co., 38 W. Va. 456, 18 S. E. 596. But where it appeared that one operating a sta- tionary engine, was between nine- teen and twenty-one years of age, and had been operating the hoist- ii^ machine for two or three weeks before the accident, and had no previous experience and had no license as required by a statute, and the accident happened by his not remaining where he could control the engine, and he left it without adjusting the frictions or brake in such a way as to hold the bucket at the STuface, so that when men stepped on the bucket it fell rapidly to the bottom, it was held that this was sufi&cient not only to show that he was incompetent but that the master was guilty of neg- ligence in employing him. Kundax V. Shenango Ftimace Co., 102 Minn. 162, 112 N. W. 1012. 91. Where the alleged omission of duty was that the person in charge of a switch engine did not slow up the train as it approached the oar which the plaintiff (a brakeman) was attempting to couple, and thereby the plaintiff received injury, and it was also alleged that such injury was the result of the incompetency of such person acting as engineer, and it appeared he had for a long time been a fireman and occasionally performed the duties of engineer, that firemen are often quaHfled to perform such duties, especially in making up trains, which requires no special skill, it was held that a verdict should have been directed for the defendant. It was said: ''The circumstances do not estab- lish that the fireman did not, when thus assigned to duty as an engi- neer, possess the requisite skill and experience for the proper dis- charge of that duty. No position affords better opportunities to learn locomotive engineering than that of a fitreman. Engineers like those called to other positions of responsibility must have their early experience. Railway companies could not long operate if only long experienced engineers could be em- ployed without liability for negli- gence, and opportunities would be denied to the beginner, however intelligent, industrious, apt and observing." The case of Evans- viUe & T. H. R. Co. v. Guyton, 115 Ind. 450, 17 N. E. 101, 7 Am. St. Rep. 458, was distinguished in that the service of operating a wild train was held to have required a conductor of more than ordinary skill, and there was some testimony § 340 Eelating to Employment of Seevants. 887 person temporarily acting as engineer.'^ Where tlie road master of a railroad company was injured as a residt of a train being nm iato a washout after as to his ability and capacity to interpret and understand the time oard. Ohio & M. R. Co. v. Dunn, 138 Ind. 18, 36 N. B. 702, 37 N. E. 546. Where the petition alleged that the engineer in charge of an engine was incompetent, and that proper care was not exercised in his selection, and it appeared he was an old fireman; that the usual way for fitting a person for the position of engineer is for him to serve a term as fireman for two years; that he was promoted to the position of engineer on the first day of Decem- ber, 1881, and the accident occurred on the nineteenth day of such month, it was held that the master mechanic who employed him had reason to think he had sufficient skUl and experience to fit him for the position, and that the evidence did not warrant the verdict for the plaintiff. Texas & N. O. R. Co. v. Berry, 67 Tex. 238, 5 S. W. 817. See also East Tenn., V. & C. R. Co. V. McKeney, 1 S. W. (Tenn.) 500. Where an engineer claimed to be incompetent, had had over four years' experience as fireman and had made several trips over the road as engineer before the accident in question, and it appeared that from three to five years' service as fireman was the time usually required before promotion to the position of engineer, and that at the time of his employment as such he was thoroughly examined as to the duties of such position, it was held that his competency ap- peared. Roblin V. Kan. City, St. J. & C, B. R. Co., 119 Mo. 476' 24 S. W. 1011. 92. Where, at the time of In- jury to a switchman while engaged in coupling cars, the engine was being operated by the fireman but under the immediate direction of the engineer, and it appeared such fireman had twenty months' experi- ence as such and frequently handled the engine, it was held that there was no evidence that the fireman was unfit to handle the engine, or that the engineer was negligent in allowing him to do so under his direction, and a verdict should have been directed for the defend- ant. Thompson v. Lake Shore & M. S. R. Co., 84 Mich. 281, 47 N. W. 584. Where a railroad com- pany gave permission to an engi- neer to allow a fireman to act as an engineer when he deemed him com- petent, and such engineer permitted such fireman, when he had but nine- teen days' experience as a fireman, to handle the engine at a given place, and as a result of the negli- gent and unskillful manner in which he operated the same the conductor of the train was injured, it was held that the company was liable, on the ground that the act of the engineer was imputable to the company. Harper v. I. & St. L. R. Co., 47 Mo. 567, 4 Am. Rep. 353. Where at the time of injury to a brakeman engaged in coupUng cars, the engine was in charge of a fireman who had not been declared competent to handle an engine as required by a rule, and it appeared that when the 888 Master and Seevant. § 340 a heavy rain, and it appeared the train was sent out to assist in repairing the track, with a person in charge of the engine who was competent to perform such duties, but who was not familiar with the road, and that the accident was the result of such want of famiharity, it was held that the evidence was such as to justify a verdict for the plaintiff on the ground that the engineer, though otherwise competent, was incompetent for the particular duty required on accoimt of his lack of famiharity with the road.*' Before putting an inexperienced employee ia charge of dangerous naachiaery, it is the positive duty of the em- ployer to iastruot and qualify him for such new service. If he cannot perform that duty himself, he must provide a competent iastructor. Such a person represents the master and pro haec occupies the position of vice prin- cipal. The rule was apphed where there was evidence tend- ing to show that a young and inexperienced person, with- out instruction, was placed at work on a machine for riveting boilers, and from his want of skill injury was caused to a fellow-workman.** brakeman went in to couple the rendered him incompetent and cars they were moving at about the plaintiff knew it, he would be two miles an hour, and at the held to have assumed the risk. If time of injury the speed had been he was not qualified to handle the increased to five miles an hour, it engine and the plaintiff did not was held that a motion for a know it, no recovery could be had peremptory instruction in behalf except for the foreman's negligence, of the defendant was properly and if he handled the engine as denied. There was involved the carefully as an engineer of ordinary question, however, whether such prudence would have done, then fireman was not a superior to the the plaintiff would not be entitled plaintiff, so that the company was to recover." Gulf C. & S. F. R. liable for his negligence. Greer v. Co. v. Sohwabbe, 1 Tex. Civ. App. L. & N. R. Co., 94 Ky. 169, 21 573, 21 S. W. 706. S. W. 649, 42 Am. St. Rep. 345. 93. Missouri Pacific R. Co. v. Where at the time of injury to a Patton, 28 S. W. (Tex. Civ. App.) brakeman while engaged in coup- 339. ling cars, the switch engine was in 94. Lebbering v. Struthers, charge of the yard foreman, who Wells & Co., 157 Pa. St. 312, 27 was a machinist and not a regular Atl. 720. engineer, it was said: "If this § 340 Eelatin-g to Employment of Sebvants. 889 It was stated that incompetency of a sawyer may arise from a lack of practice for several years, as well as from never having operated a saw carriage.'^ Insane persons. There is no presumption that the imnates of an insane asylum are dangerous or unskillful workmen, from the mere fact that they are insane.*' Personal appearance upon witness stand as evidence. It was said, where a jury were permitted to consider the appearance and conduct of an employee upon the stand, who was a witness, that it could not be said, as a matter of law, ia addition to the other evidence relating to the man- ner in which he performed his duties, it might not be legally suf&cient to satisfy them that he was an iacom- petent person.'' Subsequently, however, it was held that a jury could not be permitted to determine from the appearance of an engineer upon the stand that he was in fact incompetent.** In an action by a minor eighteen years of age, for Injuries received while employed ia defendant's factory, an instruction to the effect that the jury might consider the appearance of the plaintiff, as he had been exhibited before them on the witness stand, in determining the question of his intelligence and capacity to apprehend and avoid the dangers incident to his employment, was held not erroneous.** It was stated, however, by another court in respect to the argument of counsel that the jury saw the alleged offending servant, and upon his face and iu his manner could see carelessness, it was said that if the jury undertook 95. Curran v. A. H. Stange Co., ton Co., 140 Mass. 175, 3 N. E. 28 98 Wis. 598, 74 N. W. 377. only decided that with other evi- 96. Atkinson v. Clark, 132 dence of inoompeteney the appear- Cal. 476, 64 Pao. 769. ance and conduct of the party be- 97. Keith v. New Haven & fore the jury might be considered. Northampton Co., 140 Mass. 175, Peaslee v. Fitchburg R. Co., 152 3 N. E. 28. Mass. 155, 25 N. E. 71. 98. It was said that the case of 99. Disotell v. The Henry Lu- Keith V. New Haven & Northamp- ther Co., 90 Wis. 635, 64 N. W. 425. 890 Masteb and Sebvant. §340 to decide that he was an unfit person to be employed as a brakeman on account of what they saw, or supposed they saw, or could read in his face or manner whUe testifying be- fore them as a witness, they fell into a very grave error; as well might a jury find a man guilty of murder because, in their opinion, they could see guilt in his face. "The law does not recognize physiognomy as an art or science sufficiently reliable to found a verdict upon, even against a railroad corporation."^"" Slowness or laziness. That a servant was slow or lazy does not show incom- petency."^ Habit of intoxication. A servant may be incompetent because of his drinking habits."* 100. Corson v. Maine Central R. Co., 76 Me. 244. 101. Corson v. Maine Central R. Co., 76 Me. 244. 102. Where the workmen testi- fied that the foreman had pre- viously been drunk at his work, and defendant's superintendent tes- tified he had seen him drunk sev- eral times and did not state that it was not whUe at work, and the defendant testified that the fore- man had worked for him eight or nine years, and that he had never seen him drunk while at work, though he had often been so when off duty, that he was always able to do his work, it was held that a finding that the foreman was in- competent and that the defendant was chargeable with knowledge of it was justified. McPhee v. SeuUy, 163 Mass. 216, 39 N. E. 1007. Where there was no evidence to show that the offending servant was incompetent so far as knowl- edge and abUity to handle the particular elevator, but there was evidence tending to show that such servant was addicted to the use of intoxicating liquors to such an extent as to render bim incom- petent and that on previous occa- sions he had handled the elevator in a negligent manner, a verdict for the plaintiff was sustained. Pfudl v. F. J. Romer Sons, 107 Minn. 363, 120 N. W. 302. Where, however, the evidence of two witnesses was to the effect that sometimes an engineer had been known to drink intoxicating liquor, but there was no evidence that he was ever intoxicated or his employer had knowledge that he drank, and it appeared he was not in the habit of drinking, it was held the evidence was not sufiBcient to show negli- gence in the hiring of such an incompetent engineer. Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328. Mere proof that the reputation of a servant is so notori- ous as to his drinking habits that the defendant must be charged with § 340 Eelating to Employment of Sebvants. 891 The habit of intoxication is one of the most frequent causes that renders otherwise competent servants incom- petent. Its prevalence suggests that it may exist among formerly prudent and even temperate men, and therefore it may not always be said it ought not to be or was not anticipated. It counteracts skill. It transforms prudence and caution into rashness and recklessness. Hence it is the duty of the master, especially in the case of raihoad service, to discharge any and all who may be found to have formed the unfortunate habit of using intoxicants to excess. Habitual drinking to excess renders a person incompetent to perform services in their nature hazardous, and where other persons may be placed in peril by reason thereof, such habit may be to such an extent as to be suffi- cient to establish incompetency as matter of fact,^"' as well as to render him unfit for the position even in his sober moments.^"* Thus where an injury was occasioned an employee by the alleged negligence of an engineer in the matter of backing his engine, when the train had parted, and there was evidence, though conflicting, that such engineer was an habitual drinker ; that he was often drunk when off duty and sometimes when on his engine; and it appeared that knowedge of it is not sufficient, evidence is proper tending to show where there is no evidence that he that an engineer was habitually in- was intoxicated at the time of the toxicated and a reckless runner, as accident. Nor will the mere repu- tending to show that at the time tation that the standing of such of the accident he handled his servant was impaired by such engine negligently; yet it is not habits, of which the master would proper to show that an engineer be chargeable with knowledge, be was reputed to be a reckless runner sufficient to charge the master with and in the habit of becoming intoxi- liability for his acts, if in fact he cated. Hobson v. Railway Co., 2 did not have such habit of drinking. Ariz. 171, 11 Pac. 545. An engineer who occasionally takes 103. Chicago & Alton R. Co. v. a drink, or occasionally is under the Sullivan, 63 lU. 293; Klofski v. influence of liquor, is not thereby Railroad Supply Co., 235 111. 146, to be presumed to be incapable of 85 N. E. 274; Dixon v. Pittsburg managing an engine, when he had & G. Lumber Co., 52 La. Ann. not been drinking for a year prior 1109, 27 So. 664. thereto. Cosgrove v. Pitman, 103 104. Williams v. Missouri Pac. Cal. 268, 37 Pac. 232. While R. Co., 109 Mo. 475, 18 S. W. 1098. 892 Mastee and Seevant. § 340 the foremaai of tlie round house admitted that some time before the accident he heard complaint that such engineer was drinldng too much, it was held that there was suffi- cient evidence from which the jury might conclude that the defendant knew of the drinking habits of such engineer and to support the verdict for. the plaintiff."^ While it had been held that testimony that an employee was a drinking man was inadmissible where it did not appear that he was drunk at the time of the accident, and also that the fact that the rules of the company forbade drinking, did not make it negUgence in employing a servant who was a drinking man;^"^ yet evidently such declaration of the court was made with reference to the particular facts before the court which probably were not such as to show that the employee was an habitual drinker to excess. If they were otherwise, the case would be of very doubtful authority. Age of servant. Statutes in many states prohibit the employment of children under a certain age."' Independent of statute, a servant may be incompetent because of his youth. ^"^ 105. Williams v. Missouri Pao. the jury could not be permitted to R. Co., 109 Mo. 475, 18 S. W. 1098. infer that such servant was incom- 106. Galveston H. & S. A. R. petent in fact, from his age only, Co. V. Davis, 92 Tex. 372, 48 S. W. or that the company was negligent 570. in employing him, or to speculate 107. See infra, this chapter. whether, if the operator had been 108. See Carlson v. WUkeson a man of mature years or judgment. Coal & Coke Co., 19 Wash. 473, he would have been less likely to 53 Pac. 725. have committed the mistake." Seventeen tbabs old as The mistake referred to related to TELEGRAPH OPERATOR. Where the holding trains under telegraphic offending servant was a telegraph orders. Sutherland v. Troy & operator a little over seventeen Boston R. Co., 125 N. T. 737, 26 years of age with more than a N. B. 609. A jury was permitted a year's experience, and who prior to determine as to the competency to the mistake in. question had dis- of a young man seventeen years old charged his duties satisfactorily as a telegraph operator from Ms and intelligently, it was said: limited experience as such. The J.'We think under the circumstances accident was the result of his being § 340 Eelatizstg to Employment op Servants. 893 Previous acts of negligence. Incompetency may be shown by frequent occurrences of imprudence, carelessness or recklessness."^ asleep when a train passed his station. Being ignorant that it had passed, he misled the train dis- patcher as to where it was at a particular hour of the night. Wa- bash Railway Co. v. MoDaniels, 107 U. S. 454, 27 L. Ed. 605, 2 Sup. Ct. Rep. 932. Presumption as to boys UNDER pouRTBBN. The presump- tion is that a boy under the age of fourteen years is not competent to perform duties involving the personal safety of others and requiring the exercise of a good degree of care and watchfulness, and in an action for injuries result- ing to others from the negligence of a boy so employed, the burden is upon the employer to show that he was in fact competent. This was said where a boy less than fourteen years old was employed to signal the engineer when buckets of coal were fiUed in the hold of a vessel so as to be hoisted to the dock, and the boy gave a signal prematurely, whereby the hand of one of the men at work in the hold of the vessel was torn and lacerated by a hook at the end of the cable. Molaske v. Ohio Coal Co., 86 Wis. 220, 56 N. W. 475. Presumption as to bot about fourteen as to services not requiring skill op judgment. Where the claim, was that a boy about fourteen years old was incom- petent by reason of his age to per- form the duties to which he was assigned, that of giving signals to an engineer when to raise or lower a weighty body by means of a derrick from a quarry, it was held that, as the employment called for no skill or judgment and the work was usually performed by boys, there was nothing to show that the boy was incompetent. It was further held that the doing of such work by boys was a risk inci- dent to the employment and one assumed by other employees. Rick- ert V. Stephens, 133 Pa. St. 538, 19 Atl. 410. Custom, effect op. Where it was usual and customary in mines to employ boys from twelve to fourteen years old as trappers, and a boy over fourteen years of age with considerable experience was so employed, from whose alleged neg- lect an injury was occasioned a feUow-servant, it was held that the defendant was not guilty of negU- genoe in employing the boy to do the work. Kansas & T. Coal Co. v. Brownlee, 60 Ark. 582, 31 S. W. 453. In another case, however, it was held upon the evidence, that the employment of a boy over fourteen years old, to perform the work assigned him in a mine, which compelled him to work thir- teen hours a day, was negligence. That the custom of employing boys of that age in other mines was no defense. Carlson v. WUkeson Coal & Coke Co., 19 Wash. 473, 63 Pac. 725. 109. Consolidated Coal Co. v. Seniger, 179 lU. 370, 53 N. E. 733. Thus the evidence was held suffi- cient to support a finding of the in- 894 Master and Servant. ^340 Thus, where a raih-oad company permitted its employees to habitually disregard the safeguards provided to insure the safe running of trains, this was a neglect of duty which the company owed its other employees, as much as per- mittiag the use of defective maehinery. Hence it was held the company was neghgent in retaining in its employ a switchman who habitually disregarded the rules of the company as to locking switches and remaining at his post until trains had passed, it appearing the company had knowledge of such neglect or was chargeable with such knowledge."" So incompetency has been held inferable from the frequent reckless conduct of an engineer,"^ or con- bompetency of a foreman wto caused a gin pole used for hoisting a smoke stack, to be placed on a smooth steel plate on top of an arched building without securely fastening such pole on the siuface of the plate, the evidence of incom- petency being that such foreman previously had performed his du- ties incompetently and unskillfuUy in respect to overloading a scaffold and causing it to collapse, in the unskillful management of the work of hoisting a pump, in improperly and dangerously unloading a heavy trip hammer from a car and respect- ing the general disposition with which he performed his duties and the general safety with which he conducted his work. That his superior with power to remove him, had observed the performance of these duties and had knowledge of his conduct. Young v. Milwau- kee Gas Light Co., 133 Wis. 9, 113 N. W. 59. A jury having found that the particular servant was in- competent, the court sustained the finding. Such incompetency under the evidence, consisted in his failing to give warning to coal trimmers when coal was to be drawn from hoppers, which was his duty. On many prior occasions and on several occasions he had been scolded by his superior for such neglect of duty. It was a question for the jury whether the injured employee was not guilty of contributory negli- gence in being within the hopper when he had no right to expect any warning would be given of the withdrawal of coal therefrom, and also a question for the jury whether the intestate did not have such knowledge of the unfitness of his fellow-servant that he assumed the risk thereof by remaining in the emplojrment. Kamp v. Coxe Bros. & Co., 122 Wis. 206, 99 N. W. 366. 110. Coppins V. N. Y. C. & H. R. R. Co., 122 N. Y. 557, 25 N. E. 915, 19 Am. St. Rep. 523. 111. Where the evidence tended to show that an engineer had by his conduct frequently shown his negli- gence, recklessness and unfitness for the place; that complaints had at different times been made to the representatives of the company at the local point (being the head of a division) ; that notwithstanding § 340 Eelating to Employment of Servants. 895 ductor."* But previous negligence on the pajrt of a servant, if established, is not important unless he is also shown to have been neghgent at the tioae of the injury for "which suit is brought."' The incompetency of an employee (sawyer in a mill) is not estabUshed by some minor mishaps during a service of five years, much less knowledge on the part of the master."* Nor is it cause to dismiss a head sawyer in a mill that he occasionally conversed with other employees in a light vein, thus indicating that his attention was not centered upon his work.^" Competency for work hired to do. If the servant is competent to do the work for which these complaints he had been re- tained in the service except at short intervals, when he had been dis- charged for misconduct, and that an injury to a brakeman was caused by the sudden and reckless manner in which, without warning or neces- sity, he reversed his engine, where- by such brakeman was thrown from the top of a oar upon which he was standing, it was said that this made a case for plaintiff unless overthrown by a successful defense. Northern Pacific R. Co. V. Mares, 123 U. S. 710, 31 L. Ed. 296, 8 Sup. Ct. Rep. 321. It was held a question for the jury whether a railroad company was chargeable with negligence in the retention in its service of an engineer who had been employed as such for two years, and within that time had twice been suspended, and there was some evidence tending to show he was forgetful. The par- ticular neglect was in not stopping at a station pursuant to his orders. Southern Pac. R. Co. v. Huntsman, 55 C. C. A. 366, 118 Fed. 412. 112. While in Pennsylvania character for skill and care cannot be proved by special acts — only general reputation (Frazier v. Rail- way Co., 38 Pa. St. 104, 80 Am. Deo. 467), yet it was held compe- tent to show a conductor's accus- tomed disobedience of orders and his habitual drunkenness, and that these facts were known to the super- intendent, as proof that a railroad company knowingly employed or retained in its service an unfit serv- ant. Huntington & B. R. & C. Co. V. Decker, 82 Pa. St. 119, 84 Pa. St. 419; Pennsylvania R. Co. v Brooks, 57 Pa. St. 339, 98 Am. Dec. 229. 113. Thompson v. Lake Shore & M. S. R. Co., 84 Mich. 281, 47 N. W. 584. 114. Olsen v. North Pac. Limi- ber Co., 106 Fed. 298. 115. Kellogg V. Stephens Lum- ber Co., 125 Mich. 222, 84 N. W. 136. 896 Masteb and Seevant. §340 he is employed, it is immaterial that he is incompetent to do other work which he attempts in violation of orders."* And the mere fact that an accident had before occmred while a servant alleged to be incompetent was in the service of defendant in a different employment, does not show any incapacity for another emplojonent in the same service."^ Effect of license or certificate. It has been held that the employment of an unlicensed elevator pilot, the city ordinance requiring a hcense, is negligence per se so as to make the master liable to a co- employee injured by the neghgence of the pUot."^ 116. The master is only liable for retaining an incompetent serv- ant where such servant has proved himself incompetent. An employee may be competent to properly per- form the service for -which he is employed, and incompetent to perform a service of a different character or one which requires either a higher degree of skill or greater care and watchfulness. Thus one employed as a wiper of engines may be competent for that service and may not be competent to handle or move a locomotive, yet the master could not be charged with negligence on the ground of such a servant's incompetency to perform the latter service where employed to perform the former service. The act of incompetency charged was the handling of a locomotive, which was against the rules and in violation of direct orders. Smith v. St. Louis & S. F. R. Co., 151 Mo. 391, 52 S. W. 378, 48 L. R. A. 368. Where a con- ductor of a freight train was placed in charge of a wild train running upon telegraphic orders, and he misunderstood an order or was for- getful of it, whereby a collision occurred, and it appeared that he had been a brakeman for many years and was promoted to be a conductor of a freight train less than a month before the accident, it was said: "The evidence was not overwhelming as to his com- petency for either of these positions, yet there was sufficient to sustain a finding that he was not competent to act as a conductor of a wild train, and that the company was negligent in selecting him for such service. Some questions appeared as to mental qualifications — ^lack of quick apprehension to understand orders of such a character, in the manner usually given." This ease criti- cised, see supra, — . EvansviUe & T. H. R. Co. V. Guyton, 115 Ind. 450, 17 N. E. 101, 7 Am. St. Rep. 458. 117. Beasley v. S. J. Fruit- Packing Co., 92 Cal. 388, 28 Pac. 485. 118. Cragg V. Los Angeles Trust Co., 154 Cal. 663, 98 Pao. 1063. See also McMahon v. Davidson, 12 Minn. 357, 12 Gil. (Minn.) 232. § 340 Eelating to Employment op Servants. 897 However, the mere fact that the employee has a hcense or certificate does not make Tn'm competent, nor does the absence thereof make him incompetent. Thus, incompetency of a servant may be shown, where known to the employer, though he was required by law to employ one in that capacity having a state board certifi- cate, and the person employed had such certificate."' It was held, however, by another court, that an operator of a mine cannot be held hable for the negUgence or in- competency of a mining foreman who is subject to examin- ation by a board appointed by law, which has issued to him a certificate of competency, where his duties are prescribed by law. Such statute cannot impose upon his employer liability for his negligence or incompetency, resulting in injuries to his feUow-servants.^''" It was held that the mere fact that a yard master has not passed the examination for engineers, is not sufficient to prove his incompetency to operate an engine in the yard, where the proof showed he could handle it with safety. ^^^ Single act of negligence. The general rule is that a single act of casual neglect by an employee does not show incompetency so as to charge the master with neghgence in retaining the employee in his service. ^^^ However the conduct of a person on a single occasion may be so flagrant as to be entirely sufficient to demon- strate his incompetency.^^' 119. Consolidated Coal Co. of Southern Pao. Co., 100 Cal. 240, St. L. V. Seniger, 179 lU. 370, 53 34 Pac. 666; Conrad v. Gray, 109 N. E. 733. Ala. 130, 19 So. 398; Wioklund v. 120. Durkin v. Kingston Coal Saylor Coal Co., 119 Iowa, 335, Co., 171 Pa. St. 193, 33 Atl. 237, 93 N. W. 305; Baltimore Elevator 29 L. R. A. 808, 50 Am. St. Rep. Co. v. Neal, 65 Md. 438, 5 Atl. 338. 801. 123. Smitt v. Chicago, P. & 121. Thomas v. Cincinnati, 0. St. L. R. Co., 236 111. 369, 86 & T. P. R. Co., 97 Fed. 245. N. E. 150. See also infra, this 122. Cosgrove v. Pitman, 103 chapter. Cal. 268, 37 Pac. 232; HoUand v. 1 M. & S.— 57 898 Masteb and Servant. § 341 Negligence at time of plaintiff's injury. It is well settled that the negligence of the alleged in- competent servant at the time of plaintiff's injmy is not sufficient of itseK to prove him incompetent for the work in which he was engaged. ^^^ Competency to be determined as of time of accident. The competency of the offending servant must be determined as of the time of the injury to plaintiff. ^^^ Presumption as to competency. Until the contrary is shown, the presumption is that the employee is competent to perform the duties required of him. ^^* § 341. Reputation as proof of incompetency. The question whether evidence as to the reputation of an employee is admissible to prove competency or incom- petency is one as to which the courts are not fully agreed. Such evidence, however, is quite generally held to be ad- missible for the mere purpose of showing, in the absence of direct proof of knowledge, that the master had or was chargeable with knowledge of the incompetency of the servant or was chargeable with such notice, that upon proper inquiry he would have been informed. The doc- trine of New York eoiu"ts is that incompetency cannot be shown by reputation, but is to be shown by specific acts ; but that the master had or ought to have had knowledge of the servant's incompetency, where that has been established may be shown by evidence tending to show that such incompetency was generally known in the community. ^^' 124. Wicklund v. Saylor Coal & C. Co. v. Decker, 82 Pa. St. 119. Co., 119 Iowa, 335, 93 N. W. 305; 126. Louisville N. A. & C. R. Conrad v. Gray, 109 Ala. 130, 19 Co. v. Bates, 146 Ind. 664, 45 N. E. So. 398; Sullivan v. N. Y., N. H. 108; Grandin v. Southern Pac. Co., & H. R. Co., 62 Conn. 209, 25 Atl. 30 Utah, 360, 85 Pac. 357. See 711. also supra, this chapter. 125. Harvey v. New York Cent. 127. Park v. N. Y. C. & H. R. & H. R. R. Co., 88 N. Y. 481. But R. Co., 155 N. Y. 215, 49 N. E. see Huntington & B. T. Mt. R. 674, 63 Am. St. Rep. 663; O'Don- § 341 Eelating to Employment of Sebvants. 899 The doctrine of the Massachusetts court is that in- stances of incompetency are inadmissible, but the general reputation of the servant as a person deficient in skill in performance of his duties is admissible. ^^^ The Illinois court is in accord with both, and to the effect that to prove incompetency of a servant, his general reputation as to carelessness in the line of his emplojonent may be shown, and also specific acts, to prove notice on the part of the master; and it may be shown the employee had been laid off and reprimanded for the careless manner in which he had performed his duties. ^^' In Delaware, reputation may be shown upon the ques- tion of the incompetency of a servant, and also upon the question of the master's knowledge.^'" In Pennsylvania, character for skiU and care can only be proved by reputation, and not by special acts.^" In other jurisdictions, it seems that such evidence is not admissible at least to prove the habit of intoxication.^ ^^ nell V. American Sugar Refining Co., 41 App. Div. 307, 58 N. Y. Sutp. 640. 128. Cooney v. Commonwealth Ave. St. R. Co., 196 Mass. 11, 81 N. E. 905. 129. Metropolitan West Side Elev. R. Co. V. Fortin, 203 lU. 454, 67 N. B. 977; Consolidated Coal Co. of St. Louis v. Seniger, 79 111. App. 456 [afSrmed in 179 lU. 370, 53 N. E. 733]. 130. Giordana v. Brandywine Granite Co., 3 Pennew. (Del.) 423, 52 Atl. 332. 131. Frazier v. Pennsylvania Co., 38 Pa. St. 104, 80 Am. Dec. 467. 132. Habittjal intoxication should be proven ab a fact. Habitual intoxication as evidence of incompetency should be proven as a fact and not by reputation. Thus it was held, that evidence was proper tending to show that an en- gineer was habitually intoxicated, and a reckless runner, as tending to show that at the time of the accident he handled his engine negligently; yet it is not proper to show that an engineer was reputed to be a reckless runner and in the habit of becoming intoxicated. Hob- son V. Railway Co., 2 Ariz. 171, 11 Pac. 545. Distinction between beputa- TION as to CAHE and AS TO HABIT OF INTOXICATION. The question as to proof of the general reputation of a servant as to care and compe- tency, is somewhat different from that relating to iacompetency from the habit of intoxication. The general public could not be ac- quainted with the reputation of a servant as respects the former, in fact ordinarily he would not have any reputation in that regard, and 900 Master and Servant. §341 The rule in Kansas is that the reputation of an employee for care and prudence is not admissible for or against him.^" Reputation as admissible on question of master's knowledge. As stated, reputation may be shown as tending to show knowledge on the part of the master of the servant's incom- petency or negligence in the act of selection or retention, in not making proper inquiry where it was a plain duty to do so, where such incompetency has been otherwise established.*'* henoe if admissible at all, it must be oonfiiied to his reputation among those persons who are engaged in the same kind of occupation. Gal- veston H. & S. A. R. Co. V. Davis, 4 Tex. Civ. App. 468, 23 S. W. 301. 133. Erb V. Popritz, 59 Kan. 264, 52 Pao. 871, 68 Am. St. Rep. 362. 134. Davis v. Detroit & M. R. Co., 20 Mich. 105, 4 Am. Rep. 364; Michigan Cent. R. Co. v. Gilbert, 46 Mich. 176, 9 N. W. 243; Hatt v. Nay, 144 Mass. 186, 10 N. E. 807; Bauleo v. N. Y. & H. R. R. R. Co., 69 N. Y. 356, 17 Am. Rep. 325; Lake Shore & M. S. R. Co. v. Stupak, 123 Ind. 210, 23 N. E. 246; Wabash R. Co. v. Kelley, 153 Ind. 119, 52 N. E. 152, 54 N. E. 752; Grube v. Missouri Pao. R. Co., 98 Mo. 330, 11 S. W. 736, 4 L. R. A. 776, 14 Am. St. Rep. 645; Stoll v. Daly Min. Co., 19 Utah, 271, 57 Pao. 295; St. Louis, I. M. & S. R. Co. V. Hackett, 58 Ark. 381, 24 S. W. 881, 41 Am. St. Rep. 105; Gal- veston H. & S. A. R. Co. V. Hen- ning, 39 S. W. (Tex. Civ. App.) 302 [afBrmed in 90 Tex. 656, 40 S. W. 392]; Gulf, C. & S. F. R. Co. V. Hays, 40 Tex. Civ. App. 162, 89 S. W. 29; Southern Pao. Co. v. Hetzer, 135 Fed. 272, 68 C. C. A. 26, 1 L. R. A. (N. S.) 288. Where a switchman was intoxicated at the time of attempting to do the act which caused injury to another employee, and he had the reputa- tion when first employed by the defendant, in the community where he lived, of being a man of grossly intemperate habits, and an habitual drunkard, and was such in fact, it was held competent evidence to be submitted to a jury upon the ques- tion of defendant knowingly or in ignorance caused by its own negli- gence, employing a habitual drunk- ard as a switchman and thereby occasioning the accident, though it would not appear they had actual knowledge of his faults prior to the accident. GUman v. Eastern R. R. Corp., 10 Allen (Mass.) 233, 87 Am. Dec. 635; s. c, 13 Allen (Mass.) 433, 90 Am. Deo. 210. It was said, quoting from another court: "Where, through the negligent act of a servant who was in an intoxi- cated condition, and when it is further shown that he was in the habit of drinking intoxicating li- quors to excess, such habit extMid- § 341 Eelatinq to Employment of Seevants. 901 Extent of reputation. It was held that as general reputation regarding the competency of a servant is admissible on the ground that it furnishes some reason to believe that if the master had exercised due care, he might have learned or heard of the incompetency, a reputation among a few workmen employed under the' offending servant, is not a general reputation. It is merely an opinion of a small number of lag over a period of ninemon ths while in the defendant's employ, and no actual knowledge or notice had ever reached any superior offi- cer, we think the jury may be justified in concluding from such evidence, that the defendant was negligent in failing to learn of such habit and retaining the engineer in its employ. Western Stone Co. v. Whalen, 151 111. 472, 38 N. E. 241, 42 Am. St. Rep. 244. It was held that where there is some evi- dence tending to show that an accident was caused by the intoxica- tion of the engineer, it is compe- tent to prove the engineer's general reputation for drunkenness and his consequent incompetency as bearing upon the question of knowledge by the company, and its negligence in retaining him in its employ. Baltimore & Ohio R. Co. v. Henthorne, 19 C. C. A. 623, 73 Fed. 634, 43 U. S. App. 113. And also where the cause of an injury was attributable to the neg- ligent conduct of a brakeman, and there was evidence that he had been drinking on the night of the acci- dent, and within thirty minutes prior thereto his breath showed unmistakable evidence of it, this was held sufficient to permit evi- dence as to the general reputation of such brakeman for sobriety for one or two years before the acci- dent as bearing upon the question of the care exercised by the master in employing or in the retention of such servant. It was said, how- ever, that proof of his general reputation was immaterial imless it appeared he was drunk at the time of the accident, or there was evidence from which it might be found, even though such general reputation was known to the mas- ter, for the plain reason that if not drunk at the time, the injury was not occasioned by his neglect. Norfolk & W. R. Co. v. Hoover, 79 Md. 253, 29 Atl. 994, 25 L. R. A. 710, 47 Am. St. Rep. 392. Testi- mony as to the general reputation of a coach repairer among his fellow- servants, and their opinion as experts as to his competency, was held admissible upon the issue as to whether the master had exercised ordinary care to discover his in- competency. International & G. N. R. Co. V. Jackson, 25 Tex. Civ. App. 619, 62 S. W. 91. See also Galveston H. & S. A. R. Co. v. Henning, 39 S. W. (Tex. Civ. App.) 302; Texas & Pacific R. Co. v. Johnson, 89 Tex. 619, 35 S. W. 1042. 902 Master and Sebvant. § 341 men, of which there is no reason to suppose the master may be cognizant or which he may be bound to know.^" It was held, however, that the reputation of a motorman among a large number of conductors and motormen, upon the question of his competency, was admissible.^" When reputation alone is relied on, it should be so generally known that inquiry would disclose it.^^'' Reputation among a particular class, including a part only of those who kaew the character of the offending serv- ant is generally, however, inadmissible.^'* Reputation as to physical infirmity of common laborer. Where the contention was that a city had negligently employed an incompetent person to perform ordinary labor, and sought to prove such neghgence by evidence that in the eom.Tn.umty in which he lived he was generally reputed to be infirm in the sense of sight, of hearing and deficient in physical strength, it was held such evidence was competent. It was said: "The master is bound to use reasonable care in selecting his servants, and if a person is incompetent for the work he is employed to do, the fact that he is generally, reputed in the community to lack those qualities, which are necessary for the proper perfonnance of the work, certainly has some tendency to chow that the master would have found out that the servant was incompetent if proper means had been taken to ascertain the quaUfications of the servant. We cannot say that it may not be a matter of common repute in a community that a man is physically weak and partially blind and deaf.''^'' 135. DriscoU V. City of FaU 15 Utah, 176, 49 Pae. 295, 62 Am. River, 163 Mass. 105, 39 N. E. St. Rep. 916. 1003. 138. Southern Pac. Co. v. Het- 136. Pittsburgh Rys. Co. v. zer, 68 C. C. A. 26, 135 Fed. 272, Thomas, 98 C. C. A. 437, 174 Fed. 1 L. R. A. (N. S.) 288. 591. 139. Monahan v. City of Wor- 137. Handley v. Daly Min. Co., cester, 150 Mass. 439, 23 N. E. 228, 15 Am. St. Rep. 226. § 341 Eelating to Employment of Servants. 903 This is certainly carrying the rule of the master's duty to the extreme limit. Can it be possible that the law is to be so framed that in the employment of ordinary laborers to perform ordinary work, that an employer must care- fully inquire in the community in which such laborer re- sides or has a place of abode, as to his physical qualifi- cations? Or may he not rely upon the servant being physically competent in the absence of knowledge to the contrary untU the contrary appears? Reputation as to carelessness. Where there was evidence tending to show that an engineer was reckless, unsuited to the place, and that of this the officers of the company were informed when he was last employed, over the protest of the train master, who gave information not only of his general reputation for carelessness, but of a wreck caused by him when for- merly in the emplosrment of the company, this was held sufficient to sustain a finding that the defendant negli- gently employed an incompetent servant. The neghgent act which was held to be the proximate cause of the injury, was that of temporarily leaving his engine, when stalled upon a grade, and going forward to another engine attached to the same train, and while thus momentarily absent the fireman who was inexperienced and without orders in some manner started the engine.^*" No criticism can be indulged in as to the negligence of the master in the matter of the employment, but it is difficult to understand that there was any negligence on the part of the engineer which contributed to the accident. Certainly he could not anticipate the negligent act of the fireman, and his duties certainly did not require him to remain on the engine for the express purpose of preventing the fireman from doing an unlawful or neghgent act. 140. Mexican Nat. R. Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642. 904 Mastee and Sebvant. § 342 Reputation alone as sufficient. It is held in some jurisdictions that mere proof of the reputation of a servant for recklessness and carelessness will not be sufficient to establish his incompetency. It still must be proved that he was in fact reckless and careless."^ Reputation as a careful workman. While the courts of Massachusetts hold as has been stated, that reputation of a servant may be shown upon the question of his incompetency, they hold that evidence of the general repute of a feUow-servant as a careful work- man is incompetent.^*^ Reputation to charge fellow-servant with knowledge. While the Texas court hold to the doctrine that repu- tation among his fellow-servants, is admissible upon the question of master's knowledge of the servant's incompe- tency, it is not admissible to charge one of his fellow- servants with knowledge that he was in fact incom- petent.^*' § 342. Specific acts as proof of incompetency. Incompetency of a servant by reason of carelessness is often an issue involved in actions for injuries brought against the master. We have seen that the courts are not fully agreed on the proposition that it can be estabhshed by evidence of general reputation. An important question arises as to whether it can be estabhshed by proof of prior specific acts and, if so, to what extent they must have occurred as to admit evidence thereof, as well as to be sufficient to sustain the charge of incompetency. The courts of different jurisdictions, as in many other features, incident- to the general subject of the master's liabihty are not in accord as to the admissibihty of evidence of such 141. Gier v. Los Angeles Con. Baltimore & Ohio R. Co. v. Camp, E. R. Co., 108 Cal. 129, 41 Pao. 22. 81 Fed. 807, 26 C. C. A. 626. 142. Malcolm v. Fuller, 152 143. Texas & Pao. R. Co. v. Mass. 160, 25 N. E. 83. Contra, Johnson, 89 Tex. 519, 35 S. W. 1042. § 342 Eelating to Employment of Servants. 905 character, nor as to the sufficiency of such evidence, where admissible. The question oftentimes is also involved as to the admissibiUty of evidence of such character upon the issue of the master's knowledge of the incompetency of his servant. In most jurisdictions proof of prior specific acts of negligence or incompetency on the part of the alleged incompetent servant, are admissible,^** but 144. First Nat. Bank v. Chand- ler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39; Staunton Coal Co. V. Bub, 218 111. 125, 75 N. E. 770; Couch V. Watson Coal Co., 46 Iowa, 17; Evansville & T. H. R. Co. V. Guyton, 115 Ind. 450, 17 N. E. 101, 7 Am. St. Rep. 468; Michigan Cent. R. Co. v. Gilbert, 46 Mich. 176, 9 N. W. 243; Grube V. Missouri Pao. R. Co., 98 Mo. 330, 11 S. W. 736, 4 L. R. A. 776, 14 Am. St. Rep. 645; Bauleo v. New York & H. R. R. Co., 59 N. Y. 356, 17 Am. Rep. 325; Inter- national & Q. N. R. Co. V. Branch, 56 S. W. (Tex. Civ. App.) 542 [affirmed in 29 Tex. Civ. App. 144, 68 S. W. 338]; Conover v. Neber- Ross Co., 38 Wash. 172, 80 Pao. 281, 107 Am. St. Rep. 841. It was held by the supreme court of Utah that evidence of prior acts of negli- gence with subsequent acts of that character was competent upon the question of incompetence at the time. Stoll v. Daly Min. Co., 19 Utah 271, 57 Pao. 295. But not to show that he was "negligent" at the time. Konald v. Rio Grande W. R. Co., 21 Utah, 379, 60 Pao. 1021, 81 Am. St. Rep. 693. In Vir- ginia knowledge may be proven by showing acts of negligence so fre- quent that the law would presume knowledge. Meyer's Sons v. Falk, 99 Va. 385, 38 S. E. 178. It can safely be said that evidence of specific acts of carelessness may be shown as tending to prove knowl- edge on the part of the master of the servant's incompetency, and while the distinction is not always clearly made, I assume that such evidence is only proper, where it appears that the servant was in fact incompetent. Pittsburgh, Ft. W. & C. R. Co. V. Ruby, 38 Ind. 294, 10 Am. Rep. Ill; Grube v. Missouri Pao. R. Co., 98 Mo. 330. 11 S. W. 736, 4 L. R. A. 776, 14 Am. St. Rep. 645; Baltimore & Ohio R. Co. V. Camp, 13 C. C. A. 233, 65 Fed. 952; Norfolk & Western R. Co. v. Hoover, 79 Md. 253, 29 Atl. 994, 25 L. R. A. 710, 47 Am. St. Rep. 392. A con- cise statement of the rule is that incompetency of a servant may be proven by showing specific acts of incompetency, and bringing them home to the knowledge of the master, and by showing such acts of incompetency and negUgenee of the servant to be of such a char- acter and frequency that the mas- ter in the exercise of due and rea- sonable care must have had them brought to his notice. When re- peated acts of carelessness are shown on the part of a servant, it then becomes proper to leave the question to the jury to determine whether or not they did come to 906 Master and Servant. §342 not unless they were known, or should have been known, by the master. ^^^ In some courts, however, such evidence is held inad- missible. The reasoning seems to be, by those courts which hold that evidence of specific acts is not admissi- ble, that as the duty of the servant is that of ordinary care, it impUes occasional acts of carelessness, since aU men are fallible in this respect. ^^® And also that because a servant may have been guilty of negligence on certain specific occasions, it by no means follows that he was negligent on the occasion in question, or that he might not ordinarily be a careful and skillful workman and properly employed as such. The investiga- tion of other individual acts on the servant's part would necessarily have a tendency to confuse the case by coUat- the knowledge of the master or would tave come to his knowledge had he used reasonable care. Hand- ley V. Daly Min. Co., 16 Utah, 176, 49 Pae. 295, 62 Am. St. Rep. 916. Thus it was held competent to show that on a former occasion a telegraph operator was suspended for going to sleep, thus stopping a fast train. It was said: "This was most significant evidence upon the issue whether the company had been careless or not in his re- employment." Baltimore & Ohio R. Co. V. Camp, 13 C. C. A. 233, 65 Fed. 952. Where a car repairer in the employ of the defendant while at work in defendant's yard, was injured in a collision caused by the neglect of a switchman in misplacing a switch, who was drunk at the time, it was held that evidence showing that such switch- man had been drunk some weeks before, and while in that condition had caused a similar accident, was competent, it appearing the cir- cumstances had been reported to defendant's foreman who had au- thority to employ and discharge men. Wabash Western R. Co. v. Brow, 13 C. C. A. 222, 65 Fed. 941. However, it has been held in Illinois, imder charge of incompe- tence of a servant because he habitually hoisted and lowered the cage in a mine, without signal, and that his incompetency was known to the master, evidence was not admissible as to complaints made of such employee and as to other injuries caused by his negUgenoe, but the evidence as to his starting machinery on other occasions was proper. Staunton Coal Co. v. Bub, 218 111. 125, 75 N. E. 770. 145. Southern Pao. Co. v. Het- zer, 135 Fed. 272, 68 C. C. A. 26, 1 L. R. A. (N. S.) 288, which re- views the authorities at length; Date V. New York Glucose Co., 104 App. Div. 207, 93 N. Y. Supp. 249. 146. Frazier v. Pennsylvania Co., 38 Pa. St. 104, 80 Am. Deo. 467. § 342 Relating to Employment of Servants. 907 eral inquiries, to protract it indefinitely if these inquiries were properly made, and to mislead and distract the court and jury from the true issue. ^^'' There is much of force in this reasoning, and, when applied to a single act or occasional acts of a different character, would seem to be conclusive. When, however, similar acts of carelessness or such acts as show a lack of caution and prudence, are repeated or habitual, then it would seem that iucompeteney as matter of fact is estab- lished or at least it becomes a question for the jury. Mere proof of prior accidents, however, are immaterial, in any jurisdiction, unless it appear that such accidents were occasioned by the incompetency or carelessness of the servant.^^^ Nor unless it also appear that he was careless on the occasion in question. ^^' Former acts of carelessness or unskillfulness furnish no legitimate ground of presumption that the servant was guilty of negligence or imskillfulness on the particular occasion."" To enable a servant to recover of his master for injuries sustained through the instrumentality of a fellow-serv- ant, it is not sufficient to show that the fellow-servant was incompetent and that the master was guilty of negligence in employing him. It must also appear that the fellow- servant was guilty of some act of negligence or unskHl- fulnegs directly contributory to the injmy.i^i Methods of establishing incompetency. There are but two methods to establish iucompeteney from the stand potut of carelessness; one may be by reputation as held by some courts, while the other, if we are correct, is by proof of habitual or repeated neglect. 147. Hatt V. Nay, 144 Mass. 64; Brady v. Western Union Tel. 186, 10 N. E. 807. Co., 51 C. C. A. 539, 113 Fed. 909. 148. Giordano v. Brandywine 150. Baltimore Elevator Co. v. Granite Co., 3 Penn. (Del.) 423, 52 Neal, 65 Md. 438, 5 Atl. 338. Atl. 332. 151. Fuller v. Margaret Min. 149. Galveston H. & S. A. R. Co., 64 W. Va. 437, 63 S. E. 206. Co. V. Faber, 77 Tex. 153, 8 8. W. 908 Mastbe and Servant. § 342 While proof of incompetency by reason of intemperate habits may consistently be shown by common repute, as it generally is a matter of quite common or general noto- riety, yet it is seldom that the question of a person's habit in respect to being careless or otherwise becomes a matter of public concern, and even if there are excep- tional cases, there is no certainty that the public fully imderstood the particular circumstances accompanying the acts so as to form an accurate judgment as to whether it was careless or excusable. It is quite well settled that proof of prior acts of negligence is not admissible to prove "negligence" on the particular occasion, but that it is a different question from that of showing such acts as bear- ing upon the question of "incompetency." It has been well said: "Wben character as distinguished from repu- tation, is the subject of investigation, specific acts tend to bring to light th.e peculiar qualities of the man and indicate his adaptation or want of adaptation to any posi- tion, or fitness or unfitness for a particular duty or trust."i52 While in Massachusetts specific acts of negligence are not admissible to show incompetency, yet it was said when evidence of the conduct of a servant which tends to show his quahfications or his mental or physical fitness or unfit- ness for his work, is properly before the jiuy, upon one of the issues of the case, the jury may consider it on the question of his competency. ^^* Single acts. In few of the decisions has any attempt been made to draw a line between evidence of a single act of neghgence and evidence of several acts of negligence, but even in some of the states where evidence of "acts" is admissible, it seems that evidence of a single act of carelessness is 152. Bauleo v. New York & 153. Olsen v. Andrews, 168 H. R. R. Co., 59 N. Y. 356, 17 Mass. 261, 47 N. E. 90. Am. Rep. 325. § 342 Eelating to Employment op Servants. 909 inadmissible or at least not sufficient to show incompe- tency. ^^^ In the leading case on this subject the rule which should govern is clearly stated as foUows: "If it be conceded that the neghgence of McGorty upon the prior occasions is estabUshed, it by no means foUows that the defendant was bound to discharge him upon peril of being charged with neglect and a want of due care in retaining him in its service. An individual who by years of faithful service has shown himself trustworthy, vigilant and competent, is not disqualified for further employment, and proved either incompetent or careless and not trustworthy by a single mistake or act of forgetfulness and omission to exercise the highest degree of caution and presence of mind. The fact would only show what must be true of every human being that the iadividual was capable of an act of negligence, forgetfulness or error of judgment. This must be the case as to all employees of corporations until a race of servants can be found free from the defects and infirmities of humanity. A single act may, under some circumstances, show an iadividual to be an improper and unfit person for a position of trust or any particular service, as when such act is intentional and done wantonly, re- gardless of consequences, or maliciously. So the manner in which a specific act is performed may conclusively show the utter incompetency of the actor and his inability to perform a particular service. But a single act of casual 154. Galveston H. & S. A. R. of his incompetency, but that Co. V. Davis, 92 Tex. 372, 48 S. W. when there was no evidence that 570. But see O'Hare v. Chicago the defendant knew of the Lacom- & A. R. Co., 95 Mo. 662, 9 S. W. petency of such employee, when 23. The North Carolina court is employed, a presumption was raised not in accord with the rule gener- by such specific act and that he had ally prevailing in other jurisdic- been employed only three or four tions, not only upon the question weeks, agaiust the defendant, as to of specific acts, but also the pre- make this an issue to be submitted sumption of diligence in the em- to the jury. Pleasants v. Raleigh ployment, as it held that not only a & A. Air Liue R. Co., 121 N. C. specifio act of negligence on the 492, 28 S. E. 267, 61 Am. St. Rep. part of a conductor was evidence 674. 910 Masteb and Servant. § 342 neglect does not per se tend to prove the party to be care- less or imprudent and unfitted for a position requiring care and prudence. Character is formed and qualities exhibited by a series of acts and not by a single act. An engineer might from inattention omit to sound the whistle or ring the bell at a road crossing, but such fact would not tend to prove him a careless and negligent servant of the company. The company is only charged with the duty of employing those who have acquired a good character in respect to the quahflcations called for by the particular service, and no one would say that a good character acquired by long service was destroyed or seriously injured by a single involimtary and unintentional fault.""* In conunentiQg upon the effect of a single act of negli- gence as constituting or tending to prove incompetency, it was said: "A single act of negligence assuredly does not estabUsh incompetency or of its^ have any tendency so to do. If it were to be so regarded and thus furnish grounds for conjecture, that such incompetency was known to the master, then all cases of damage by the negligence of fellow-servants may be allowed to be traced to the negligent appointment of incompetent subordi- nates. Such inferences would produce injustice, as the most careful and best qualfiied workmen in any branch of mechanism are liable to mistakes.""^ 155. The facts were tliat an 156. Lee v. Detroit Bridge & employee was injured by the act of Iron Works, 62 Mo. 565. It was a switchman in turning a switch stated by the Supreme court of through a mistake on his part as to Iowa, after haviag stated that evi- the train which was approaching, denee of specific acts of negUgenoe In an action against the company it was competent to show that the was claimed such switchman was master or his direct representative retained in the service after he had had knowledge of specific acts of shown himself unfitted for the negligence, where they were com- position and unsafe to be intrusted mitted in his presence: ."If the in it. This was sought to be sus- superintendent as a reasonably tained by proof of a similar act on a careful and prudent man must have former occasion of which the com- had knowledge of these specific pany had notice. Baulec v. New acts, then the defendant is bound York & H. R. R. Co., 59 N. Y. thereby. The fact that he was 356, 17 Am. Rep. 325. discharged after the accident and § 342 Eelating to Employmekt of Sebvants. 911 Negligence such as unfits a person for service or such as renders it negligent in a master to retain him in his employ, must be habitual rather than occasional or of such a character as to render it imprudent to retain him in service. A single exceptional act of negUgence will not prove a servant to be incapable or neghgent. If it were otherwise, no servant could be retained in service as there is no person who has not at some time to some degree been negligent.'" It has been said to render mere neghgence incompe- tence, there must be something more than mere failure of duty as to a particular act. There must be actual incom- petency to do the work properly either from want of phy- sical or mental abiUty, or want of that mental balance and self control that enables one reasonably to bring into use, with an ordinary degree of success, his intelligence and experience.'^* Negligence and incompetency not convertible terms. It has been said: "NegUgence and incompetency are not convertible terms, for the most competent may some- times be neghgent, and evidence of former acts of imsldll- fulness does not prove that the servant was negligent at the particular time, or, unless communicated to the master, that the master was neghgent in retaining him." afterwards employed as an engi- 158. Kliefoth v. Northwestern neer at another mine, and then Iron Co., 98 Wis. 495, 74 N. W. discharged, has no tendency to 356; Odegard v. North Wis. Lum- prove that he was incompetent." ber Co., 130 Wis. 659, 110 N. W. Couch V. The Watson Coal Co., 46 809. It was held, however, by the Iowa, 17. Yet it was held that same court, that evidence show- the mere fact that a fireman who ing, among other things, specific was moving a switch engine in a instances of carelessness on the yard, did not stop it with prompt- part of an employee, and also ness, was sufficient to justify a his habits of carelessness, and his finding that he was incompetent to reputation in that regard, was suffl- handle the engine. McMarshaU v. cient to sustain a finding that he Chicago, R. I. & P. R. Co., 80 was incompetent. Johnson v. St. Iowa, 757, 45 N. W. 1065, 20 Am. Paul & Western Coal Co., 126 Wis. St. Rep. 445. 492, 105 N. W. 1048. 157. Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338. 912 Master and Servant. § 342 The prior acts of negligence complained of was that where a servant was employed as an engiaeer in operating an engine in connection with the sinking of a shaft, on the previous day, the cage had fallen three times, and in falling on the day in question caused the injury complained of. It was further stated: "The former act of letting the cage fall, if through the engineer's negUgence, did not prove him incompetent.""' Rule in Minnesota. The rule prevailing in Minnesota may be gleaned from what was stated and held iu the two following cases, viz., "A single act of neghgence on the part of one who has previously shown himself competent, is not sufficient, per se, to charge the master with Uabihty for retaining him in his service. Where it is shown he never was competent, and after a prior accident he was so reported, such former act is important, and the question of the master's negh- gence ta retaining him is for the jury."" A specific act was held competent to be shown as bearing upon the question of the competency of a servant, as tending to show that he did not have sufficient presence of mind in an emergency, was not a man of sufficient judgment, and did not have sufficient strength and acute- ness of intellect to be competent for the work of a grip- man."^ Rule in Indiana. The Indiana court seems to have held in an early case, that a single act of neghgence on the part of a conductor, such as leaving a switch open, was conclusive evidence that he was an incompetent conductor, and that where the company had notice of such careless act and inatten- tion, it was its duty to discharge him, and if it retained him in its employ thereafter, and injury was occasioned 159. Mayor & City CouneU of R. Co., 71 Minn. 326, 73 N. W. Baltimore v. War, 77 Md. 593, 973. 27 Atl. 85. 161. Morrow v. St. Paul City 160. Morrow v. St. Paul City R. Co., 74 Minn. 480, 77 N. W 303. § 342 Eelating to Employment of Servants. 913 an employee by reason of a careless or negligent act of such conductor, the company was liable, upon the ground of having knowingly retained in its employ an incompe- tent servant. ^^^ It was said, however, in a later case: "It is not to be tolerated that the law wiU pronounce a person who is shown to be quaUfled by years of efficient service, incom- petent because of a single mistake or act of forgetfulness. The fact, however, cannot be disputed that a single act, with the circumstances smTOunding it, when the conse- quences are so overwhelming as the bringing of two trains of cars in collision, may tend very strongly to show the incompetency of the actor to perform the service to which he is assigned. "^^' Rule in California. The CaUfomia court, while admitting that there might be occasions where the circumstances were such that a single act of carelessness known to the employer naight be sufficient to show his servant's incompetency and charge the master with neghgence in retaining him in the em- ployment, said: "Yet the mere fact that upon one occa- sion an engineer had run a train without accident at a dangerous rate of speed, is insufficient." ^^^ Statement of Texas court. The Texas court (Civil Appeals) held that it was suffi- cient to show the incompetency of an engineer by the evi- dence of a witness that he had run his engine in an open switch in dayhght when employed upon another road, and by proof that he had run his engine off the track while in the present employ. It was said, however, that the mere fact that he had run his engine off the track was not sufficient to prove him. incompetent.^*^ 162. Pittsburgh, Ft. W. & C. 164. Holland v. Southern Pac. R. Co. V. Ruby, 38 Ind. 294, 10 Am. Co., 100 Cal. 240, 34 Pac. 666. Rep. 111. See also Cosgrove v. Pitman, 103 163. EvansviUe & T. H. R. Co. Cal. 268, 37 Pac. 232. V. Guyton, 115 Ind. 450, 17 N. B. 165. TerreU v. Russell, 16 Tex. 101, 7 Am. St. Rep. 458. Civ. App. 573, 42 S. W. 129. 1 M. & S.— 58 914 Masteb and Servant. § 343 The Supreme coiirt, however, are in accord with the prevailing rule to the effect that a single act of careless- ness is not sufficient to establish iacompeteney.^*^ § 343. Character of act as tending to show incompetency. Neglect to shift belt in emergency. It was held that it was not evidence of incompetency, of a female employee operating a machine in a factory, where upon discovering a fire, in the machine, she gave an alarm by running part way to the superintendent's desk in the same room, without first shifting the belt from the tight to the loose pulley, where she often shifted the belt in running the machine and was perfectly com- petent to do so. In the particular case the superintendent shut off the power and started it again knowing an em- ployee was in the machine making an examination of it after the fire."' Momentary forgetfulness while engaged in conver- sation. The charge of incompetency of a servant is not sustained nor an inference thereof from the mere fact that he failed to warn other servants of the approach of an electric crane, such being his express duty, where such failure was caused by his being engaged in conversation with another em- ployee, and the location of the injured employee in the path of the crane sMpped his mind. Such lack of memory is not inconsistent with skill and competency."^ Starting machine before receiving signal. The mere fact that, in starting a stationary engine, the engineer started it too rapidly, before receiving the proper signal, is not proof of his incompetency."^ 166. Galveston H. & S. A. R. 168. Ferry v. American Suction Co. V. Davis, 92 Tex. 372, 48 Gas Producing Co., 153 Mioli. 266, S. W. 670. 116 N. W. 1073. 167. Gilmore v. Mittineague 169. National Fertilizer Co. v. Paper Co., 169 Mass. 471, 48 N. E. Travis, 102 Tenn. 16, 49 S. W. 623. 832. § 344 Eelating to Employment op Sebvants. 915 Sending engine upon track when coining train is overdue. The fact that a raiboad employee is passionate and excitable does not show that he is iinfit for the position of yard master, nor does the mere fact that he had sent an engine upon the track when a coming train was overdue imply he was negligent."" Conduct on examination of train register. It has been said, however, "The conduct of a person on a single occasion may be entirely sufficient to demon- strate his unfitness." The specific act referred to was simply in making an examination of the train register and concluding that a train had passed when in fact it had not passed. He was in charge of a work train, the engine running backwards on a foggy day and did not display white signals as required by the rules. He was a man of large experience in railroading, as a switchman and yard foreman, but had none as a conductor. It was held that the evidence was sufficient to show his incompetency."^ § 344. Incompetency as proximate cause. A master is not liable because of the employment of an incompetent servant unless the injuries resulted from such incompetency. " ^ And in this connection incompetency is to be distin- guished from negUgence, inasmuch as the injuries may have resulted from his negligence and yet not make 170. Baltimore Elevator Co. Md. 253, 29 Atl. 994, 25 L. R. A. V. Neal, 65 Md. 438, 5 Atl. 338. 710, 47 Am. St. Rep. 392; Cooney 171. Smith V. Chicago P. & v. Commonwealth Ave. St. R. Co., St. L. R. Co., 236 lU. 369, 86 196 Mass. 11, 81 N. E. 905; Core v. N. B. 150. Ohio River R. Co., 38 W. Va. 456, 172. First Nat. Bank v. Chand- 18 S. E. 596; Welsh v. Pennsylvania ■' ler, 144 Ala. 286, 39 So. 822, 113 R. Co., 192 Pa. St. 69, 43 Atl. 402; Am. St. Rep. 39; StiU v. San Norfolk •& W. R. Co. v. PhiUips' Francisco & N. W. R. Co., 154 Adm'x, 100 Va. 362, 41 8. E. 726; Cal. 559, 98 Pao. 672, 20 L. R. A. Kamp v. Coxe Bros. & Co., 122 (N. S.) 322, 129 Am. St. Rep. 177; Wis. 206, 99 N. W. 366. Norfolk & W. R. Co. v. Hoover, 79 916 Master and Sebvant. §§ 345, 346 the master liable if not in the line of the servant's incompe- tence. Thus, where a servant is alleged to be incompetent be- cause of his drinking habits, the habit of intemperance must be shown to have been the cause of the iajury.^^' § 345. Where servant member of labor union. The master cannot evade responsibility by showing that the offending servant was furnished under contract with a labor union, whose business it was to furnish competent labor ia that line of employment. ^^* But where the labor union dictates as to the particular person who shall fill a certain position, and such one is iacompetent, an iajured servant who is also a member of the imion cannot recover. ^'^ II. Number of Servants. § 346. Duty of master. The doctrine is universal that the master's duty includes the fumishiD.g of a sufficient number of competent serv- 173. Cosgrove v. Pitman, 103 by the plaintiff he must establish Cal. 268, 37 Pac. 232. Although it not only the facts that Ray's habits a opear that an employee is incom- were such as rendered him unfit for pjtent by reason of his habit of the position of conductor, and that intoxication, yet such habit in this was known or should have been order to charge the master with known to the defendant receiver liability must have been the proxi- and was unknown to the plaintiff, mate cause of the accident. Welsh but, in addition, plaintiff must show V. Pennsylvania R. Co., 192 Pa. that by reason of his habits of in- St. 69, 43 Atl. 402. Thus, where it temperance Ray was guilty of the was alleged that a conductor, by negligence complained of, and that reason of his intemperate habits, such negligence was the proximate was an unfit and unsuitable person cause of the injury." Campbell v. for the position of conductor, and Wing, 5 Tex. Civ. App. 431, 24 S. from the evidence it appeared the W. 360. conductor had nothing to do with 174. Pearson v. Alaska Pac. the giving of the order to detach S. S. Co., 51 Wash. 560, 99 Pao. the train which was the cause of 753, 130 Am. St. Rep. 1117. the plaintiff's injury, it was said in 175. Farmer v. Kearney, 115 reference to the proof: "In the La. 722, 39 So. 967, 3 L. R. A. matter of the incompetency of the (N. S.) 1105. conductor, to authorize a recovery § 346 Eelating to Employment of Seevants. 917 ants to properly and safely perform the required service."^ However, this rule that the master's duty requires the employment of sufficient help to do the work, so far as may be necessary to enable them to do it with safety, does not mean safety from the risks of the employment which the employee assumes, but risks resultiag from the negli- gence of the master. ^^^ It is not enough to merely hire a sufficient number of workmen, where part of them fail to appear and the work goes on without them;"* but the master is not Hable where one of the servants absents himself for a period of time without the knowledge or consent of the master,"^ except perhaps where the servant is obUged to absent himself because of hunger as where he has remained on duty for many hours. ^™ Whether the custom in the particular business as to the number of servants to do particiilar work or a particidar act may be shown, or whether it is material, is the subject of more or less eonflictiag decisions."^ Of course, the master cannot be held liable on this ground unless it was the proximate cause of the accident. ^* " 176. Booth V. Boston & Albany & P. R. Co., 113 Iowa, 224, 84 R. Co., 73 N. Y. 38, 29 Am. Rep. N. W. 1056. 97; Flike v. Boston & Albany R. 178. Flike v. Boston & A. R. Co.,53N.Y. 549, 13Am. Rep. 545; Co., 53 N. T. 549, 13 Am. Rep. Chicago & N. W. R. Co. v. Dona- 545. hue, 75 111. 106; Alabama G. S. Ry. 179. Cheeney v. Ocean S. S. Co. V. Van, 142 Ala. 134, 38 So. Co., 92 Ga. 726, 19 S. E. 33, 44 124, 110 Am. St. Rep. 23; Peterson Am. St. Rep. 113. V. American Grass Twine Co., 90 180. Pennsylvania Co. v. Mo- Minn. 343, 96 N. W. 913; Craig Caffrey, 139 Ind. 430, 38 N. E. V. Chicago & A. R. Co., 54 Mo. 67, 29 L. R. A. 104. App. 523; Hilton v. Fitchburg R. 181. That evidence is Inadmis- Cc, 73 N. H. 116, 59 Atl. 625, sible, see East Tennessee, etc., R. 68 L. R. A. 428; Bonn v. Galves- Co. v. Kane, 92 Ga. 187, 18 S. E. ton H. & S. A. R. Co., 82 8. W. 18, 22 L. R. A. 315; Craven v. (Tex. Civ. App.) 808; Johnson v. Mayers, 165 Mass. 271, 42 N. E. Ashland Water Co., 71 Wis. 553, 1131. Contra, see Gulf, C. & S. F. 37 N. W. 823, 5 Am. St. Rep. 243; R. Co. v. Harriett, 80 Tex. 73, Hill V. Big Creek Lumber Co., 108 15 S. W. 556. La. 162, 32 So. 372, 58 L.R. A. 346., 182. MoQueeney v. Noreross, 177. Cahow v. Chicago R. I. 75 Conn. 381, 53 Atl. 780, 54 Atl. 918 Masteb and Servant. § 347 § 347. Applications of rule. This duty being absolute and personal, the only ques- tion ordinarily is whether the number furnished was ade- quate and this is a question of fact peculiar to the iadivid- ual case. Brakemen. it is the duty of a railroad corporation to see that there are a sufficient number of brakemen upon a traia when it starts upon its trip. If this duty is neglected, and iajury to a servant results therefrom without contributory negli- gence on his part, the company is liable, although, the inxmediate negligence in starting the train without suffi- cient brakemen is that of a co-servant.^*' Where a railroad company had in its employ, and assigned to their regular duty and position, a full comple- ment of brakeman upon a train, and on the day in question one of such failed to appear at the starting of the train, which was dispatched without one in his place, and while on its course the train broke in two, whereby the rear portion of the train, moving backward and without control, coUided with a train closely following, kiEing its fireman, and there was evidence from which it might be determined that the third man would have been stationed upon some one of the eleven detached cars, and with the aid of one of the others who was upon them would have been enabled to stop them, it was held there was negli- gence chargeable to the defendant in dispatching such train without the full complement of men.^^* Where it was the usual and customary method to ope- rate through trains with only two brakeman, an employee injured caimot be heard to assert that the train was insufficiently manned. ^^^ 301; Strojny V. Griffin Wheel Co., 184. Flike v. Boston & Albany 116 m. App. 550; Hagglund v. R. Co., 53 N. Y. 549, 13 Am. Rep. St. Hilaire Lumber Co., 97 Minn. 545. 94, 106N. W. 91;Henry V. Staten 185. Relyea v. K. C, Ft. S. Island Ry. Co., 81 N. Y. 373. & G. R. Co., 112 Mo. 86, 20 S. W. 183. Booth T. Boston & Albany 480, 18 L. R. A. 817. R. Co., 73 N. Y. 38, 29 Am. Rep. 97. § 347 Eelating to Employment of Sebvants. 919 Where it appeared that only one brakeman was upon ten loaded ears "while upon a descending grade, and only- one brake set, it was held that this was sufficient to permit the jury to pass upon the question whether there was negUgence in the failure to employ a sufficient number of men.^*" Car repairers. Where the right to recover by an employee who was injured by reason of a defective appliance upon a car was based upon the allegation that an insufficient force of car inspectors was provided and one was incompetent, and it appeared that the train, which included the car in question was inspected, and that the evidence as to the one's incompetency was merely that sometimes when not on duty he got drunk, it was held that was not sufficient to charge the defendant with any neglect which was the cause of the plaintiff's injury.^*' Handling block. The master's duty being to provide a sufficient number of competent servants to perform the work, to provide only one man to handle a block, the work requiring a greater number, is sufficient to charge the master with ha- biUty for injuries received by a servant caused by such neglect.^** HandUng hose. The question of the master's negligence in permitting a workman to attempt to clean out a sewer hole by means of a hose and nozzle, without the assistance of other men, one man not being able to handle the hose, with the pressure of the water alone was for the jury.^*^ 186. Georgia Pao. R. Co. v. 188. Boden v. Demwolf, 56 Propst, 90 Ala. 1, 7 So. 635. Fed. 846. 187. St. Louis, I. M. & 8. P. R. 189. Diezi v. G. H. Hammond Co. V. Gaines, 46 Ark. 555; S. C, Co., 156 Ind. 583, 60 N. E. 353. 13 S. W. 740. 920 Master and Sebvant. §347 Loading vessel. Where it is essential to the safety of laborers employed in the hold of a vessel that a person be stationed to warn them when articles are about to be lowered into the hold, the master is liable for an injury resulting from failure to furnish such an employee."" Lowering lumber in trench. It was gross negligence on the part of the foreman of a gang to direct one of them to lower a large timber in a trench, thus injuring an employee by the former dropping it in, when it required at least two men to handle it."^ Moving heavy machine. It was held that the master was negligent in this respect in not furnishing assistants to help an employee to move a heavy machine, which toppled over and injxired him. It does not appear that the employee made any request for assistants."" Moving poles. The question whether the master furnished a sufficient number of men to imload telephone poles from a wagon was held to be for the jury as well as whether a failure so to do was the proximate cause of an injury to one so employed."' Moving timber or other heavy articles. A foreman of a gang of diggers upon a canal, was called from his regular work to assist in moving some heavy timbers. It was alleged he was not versed in such work and was ignorant as to the number of men required. There being evidence thg,t the doing of the particular work required more men and that such foreman was injured by 190. Ocean Steamship Co. v. 192. Peterson v. American Cheeney, 95 Ga. 381, 22 S. E. 544. Grass Twine Co., 90 Minn. 343, 191. Chesapeake & O. R. Co. v. 96 N. W. 913. Board, 25 Ky. L. Rep. 1118, 77 193. Fitter v. Iowa Telephone S. W. 189. Co., 143 Iowa, 689, 121 N. W. 48. § 347 Eelating to Employment of Seevants. 921 the timbers slipping and falling upon him, a verdict in his favor was sustained.^** NegUgence of the naaster in not providing sufficient help to handle a heavy article, is not available to a servant injured while handling it, while other employees of the master stood by and could have aided had it been thought necessary."^ Operating edger in mill. The duty of the master extends to the employment not only of competent servants, but also to the employ- ment of a sufficient number to do the work safely as respects other employees. It was held that an extra man was required to be placed in and about an edger ia a mill; that the force of three employed was insufficient to perform the work with safety."^ Piling lumber. In this case, failure to employ a sufficient nimiber of servants was not the proximate cause of the injury. The employee was injured by a pile of lumber about three feet high, falling upon him, which he had piled in one of the aisles of a miU.^" Raising pole. A master was held hable for neglect in failing to furnish a sufficient niunber of men to raise a pole, which fell, injuring an employee. ^^^ Switch, operating. It being the duty of a railroad company to furnish a reasonably safe place for an engineer, injured by collision caused by an open switch, and to employ a sufficient num- ber of employees to insure reasonable safety in the ope- 194. Supple V. Agnew, 191 111. 197. Hagglund v. St. Hilaire 439, 61 N. E. 392. Lumber Co., 97 Minn. 94, 106 N. 195. Wliite V. Owosso Sugar W. 91. Co., 149 Mioh. 473, 112 N.W. 1125. 198. Di Bari v. J. W. Bishop 196. Hin V. Big Creek Lumber Co., 199 Mass. 254, 85 N. E. 89, Co., 108 La. 162, 32 So. 372, 58 17 L. R. A. (N. S.) 773, 127 Am. St. L. R. A. 346. Rep. 497. 922 Masteb and Sebvant. § 347 ration of its road, it was said if the defendant company allowed the particular switch to be operated by the brakeman and trainmen as they needed to use it, in order to dispense with the services of a switchman, it did not perform its duty to the injured engineer."* Track walkers. Where the negligence claimed was that there should have been some person to ascertain the condition of the track after a violent storm and warn moving trains of any defect thus caused, the court used the following language: "We say there must be servants enough, not only for ordi- nary but for extraordinary occasions, and that after every storm, threatening the road, every part of it must be examined before a train passes, and that it will not do to say that one man cannot be in two places at one time, but there must be a man for every place as need may be." ^'"' Unloading car. It was held a question for the jury whether the master was negligent in directing employees to unload from a car lajge casks of tallow in a dangerous way and without a sufficient number of men.^"^ The rule as to the master's duty in respect to the fur- nishing of a sufficient number of men was applied where a servant was injured while unloading steel shafts from a car.^"" Where the master knows or by the exercise of ordinary care would know that a force was insufficient for the work, and a servant without knowledge thereof is injured in con- sequence thereof, the master wiU be liable. The particular work was unloading from a car heavy iron pipes twenty feet long and twelve inches in diameter. ^"^ 199. Young V. Syracuse, B. & 202. lUinois Cent. R. Co. v. N. R. Co., 166 N. T. 227, 59 N. B. Langan, 116 Ky. 318, 25 Ky. L. 828. Rep. 600, 76 S. W. 32. 200. Hardy v. Carolina Cent. 203. Standard Sanitary Mfg. R. Co., 76 N. C. 5. Co. v. Minor, 112 S. W. (Ky.) 572. 201. James S. Kirk & Co. v. Jajko, 224 lU. 338, 79 N. E. 577. § 348 Eelating to Employment of Seevants. 923 Yard men. Where it appeared that in the night time two engines from some cause imknown ran away from the railroad yard, after their run was over, and came into collision with a third upon the track, causing injury to a brakeman, and there was only one man in the yard who was charged with the duty of looMng after the engines, and the two engines ran away whUe he was engaged in wiping another, it was held the railroad company was liable for failure to take reasonable precautions to provide against the en- gines being put in motion by themselves or by outside parties. Whether the employment of but one person to caje for the engines, as weU as to act as watchman, with such reasonable precaution was a proper question for the jury.''"'' Where there were at hand the usual crew of men to do the work, and it was not usual for the yard master or his assistant to take part in the work, it was held that a verdict could not be sustained on the ground that the jury had a right to say that the absence of such assistant contributed to the injury. ^"^ III. Employment of Minors. § 348. Duties and liabilities independent of statute. Independent of statute, a master incurs no liability by emplojdng an infant, where the latter is afterwards injured in the scope of his employment, unless the master was neghgent. In other words it is ordinarily not negli- gence to set an infant at work, and the mere fact of minor- ity does not necessarily impose on the master any other or greater degree of care in respect to the minor than would be imposed on him with reference to a servant of full 206 204. Southern Paeiflo Co. v. 206. Decatur Car- Wheel Co. v. Lafferty, 6 C. C. A. 474, 57 Fed. Ferry, 148 Ala. 674, 41 So. 839. 536. Contra, see Larson v. Berquist, 205. Harvey v. N. Y. C. & 34 Kan. 334, 8 Pao. 407, 55 Am. H. R. R. Co., 57 Hun 589, 10 Rep. 249. N. Y. Supp. 645. 924 Masteb and Sebvant. § 349 Of course, the master may be liable to other servants if the infant is incompetent and injury results therefrom, and the master may be hable to the minor for failure to warn or instruct although it would not be necessary to warn or instruct an adult. And, as will be noticed later, if the servant is so yoimg and inexperienced that he cannot appreciate the dangers even after he is warned and instructed, the master may still be liable to him for injuries received. § 349. Statutory provisions. In most of the states, statutes have been enacted for- bidding the employment of children tmder a certain age, at least in dangerous work. These statutes vary to a considerable extent and are construed differently in different states. In most of the states, but not in all, the employment of a child under the statutory age is negli- gence per se, and in some of the states the employer cannot set up against the injured employee the defenses of assumed risk or contributory negligence. Child labor statutes exist in Alabama,'"" Louisiana,^"* Massachusetts,^"' Minnesota, ^^^ New 207. A paxent cannot main- Kohlmann, 123 La. 164, 48 So. 781, tain a common law action for in- 20 L. R. A. (N. S.) 881. juries to a minor, for loss of services, 209. The Massachusetts statute ■without showing the act of em- of 1905, o. 267, prohibiting child ployment was wrongful, nor is such labor, is an absolute prohibition, an action authorized by the stat- and the word "work" therein in- ute. Woodward Iron Co. v. Cook, eludes employment in theatrical 124 Ala. 349, 27 So. 455. exhibitions, though no compensa- 208. The statute relating to tion was paid, and the statute also emplojrment of minors does not applies to work in the state done preclude the defense of eontribu- under an employment contracted tory negligence, and hence where a for in a sister state by persons boy employed in violation thereof, residing there. Commonwealth v. was injured while disobeying posi- Griffith, 204 Mass. 18, 90 N. B. tive instructions not to go near or 394, 25 L. R. A. (N. S.) 957, 134 meddle with the machinery, he Am. St. Rep. 645. was held guilty of contributory 210. The employm.ent of an negligence and denied recovery for infant under the age of sixteen the injury received. Darsam v. years, about dangerous machinery, § 349 Relating to Employment of Servants. 925 York,^" North Carolina,^^^ Pennsylvania,"^' Rhode no certificate being obtained from the school superintendent or school board permitting such employ- ment, is illegal, and if injury results to such an employee from a failure to properly guard dangerous ma- chinery at which he is required to work, these facts make a prima facie case for damages against the employer. Fitzgerald v. Inter- national Flax Twine Co., 104 Minn. 138, 116 N. W. 475. The employment of a boy under fifteen years of age in a mill, and failure to guard machinery with which he came in contact, causing injury, both in violation of statutes, made a prima facie case of negUgenee. Jacobson v. Merrill & Ring Mill Co., 107 Minn. 74, 119 N. W. 510, 22 L. R. A. (N. S.) 309. The employment of an infant between the ages of fourteen and sixteen years in a saw mill, whose owner had not procured a certificate from the school superintendent or school board permitting such employ- ment, as required by the 1905 statute, is illegal; and if injury results to the employee who is within such age from a failure to properly guard dangerous machin- ery at which he was required to work, these facts make a prima facie case for damages against the employer. Perry v. Tozer, 90 Minn. 431, 97 N. W. 137, 101 Am. St. Rep. 416. 211. The gist of civil liability in employing a person under the age of fourteen years in violation of sec. 70 of the labor law (L. 1897, ch. 415), is the negligence of the master, and hence a master cannot be charged with negligence if he used proper vigilance in ascertain- ing the fact of age. Koester v. Rochester Candy Works, 194 N. Y. 92, 87 N. E. 77, 19 L. R. A. (N. S.) 783. Violation of the statute is evidence of negligence. Marino V. Lehmaier, 173 N. Y. 530, 66 N. E. 572, 61 L. R. A. 811. 212. Employment of a child in violation of the statute (Laws 1903, p. 819) was held negligence per se, and not merely evidence of negli- gence. Leathers v. Blaokwell, Durham Tobacco Co., 144 N. C. 330, 57 S. E. 11, 9 L. R. A. (N. S.) 349; Starnes v. Albion Mfg. Co., 147 N. C. 556, 61 S. E. 525, 17 L. R. A. (N. S.) 602. It had been held that it was evidence of negli- gence. Rolin V. R. J. Reynolds Tobacco Co., 141 N. C. 300, 53 S. E. 891, 7 L. R. A. (N. S.) 335. 213. A master is liable for injuries to a boy under fourteen years of age, sustained in oiling running machinery, the statute (Act of May 2, 1905) prohibiting the employment of boys of that age to perform such service. Stehle V. Jaeger Automatic Mach. Co., 220 Pa. St. 617, 69 Atl. 1116. The employment of minor in violation of such statute is negligence per se. The master is not excused on the ground that he had been advised that the statute did not apply where the child was employed prior to the passage of the act. Stehle V. Jaeger Automatic Mach. Co., 225 Pa. St. 348, 74 Atl. 215, 133 Am. St. Rep. 884. 926 Master and Servant. § 349 Island,"^ Tennessee,"^ Wisconsin,"" Washington,"^ and other states. Illinois. One of the purposes of the Illinois statute (see. 33, ch. 48, Kurd's Rev. Stat. 1903), is to protect children from the effects of their own immaturity, inexperience and heed- lessness, and hence contributory negligence on the part of a child under fourteen years is no defense where injured, where such injuries were caused in the performance of the work which he was directed to do. If the child left such task and was injured while not performing the required work, then a different question would present itself. The master must learn at his peril whether the child is over fourteen years of age.^^^ Where a child, under the age of fourteen years, is injtired while employed in a factory in violation of the statute (Kurd's Rev. Stat. 1908, ch. 48, sec. 33), contribu- tory negligence is no defense to an action for the injuries, and it is immaterial that at the time of the injury the lad was doing work he was not authorized to perform, or which he had been forbidden to do. "^' 214. A defendant in an action Iron & Wire Co. v. Green, 108 for negligence brought in behalf of Tenn. 161, 65 S. W. 399. a minor, cannot set up his own 216. The mere employment of violation of a statute, intended for a boy, under twelve years of age, in the protection of his servants, as a a factory, contrary to the statute, defense. Dion v. Richmond Mfg. is not such negligence as renders Co., 24 R. I. 187, 52 Atl. 889. the employer liable for injuries 215. The employment of a child received by the boy while so less than twelve years of age, in employed. Kutchera v. Good- violation of the statute, constitutes willie, 93 Wis. 448, 67 N. W. 729. negligence per se, and the master 217. See Kirkham v. Wheeler- thus becomes liable for all injuries Osgood Co., 39 Wash. 415, 81 Pac. sustained by the infant in the 869. course of his employment. The 218. American Car & Foundry rule applied where at the time of Co. v. Armentraut, 214 lU. 509, injury the child was playing with 73 N. E. 766. certain iron panels which fell upon 219. Strafford v. Republic Iron him, and not while engaged in any & Steel Co., 238 111. 371, 87 N. E. work of the employer. Ornamental 358, 20 L. R. A. (N. S.) 876, 128 Am. St. Rep. 129. § 349 Eblating to Employment of Sebvants. 927 A count charging that the plaintiff was under fourteen years of age and that defendant had notice of that fact, and wrongfully and unlawfully employed him to work in a mine, sufficiently shows a wilful violation of the mines and miners act (Hurd's Rev. Stat. 1899, ch. 93), within the provision that a wilful violation thereof shall give a right of action to the person injured, against the mine owner. 2 20 Indiana. The Indiana statute, Bum's Ann. Stat. 1908, o. 142, sec. 8021) prohibits the employment of minors in manu- facturing establishments under sixteen years old for more than sixty hours in a week or ten hours in a day. Another statute (Bum's Ann. St. 1908, sec. 8022) prohibits the employment of children under fourteen years old in ajiy manufacturing establishment. Where a child under thir- teen years was employed and he was required to work more than the time limited, and he fell asleep near the furnace track because of exhaustion from such overwork, and was injured by an ore car, it was held the master was negligent per se. That assumed risk was not a defense; that the child could not be charged with contributory neg- Kgenoe and that the proximate cause of the injury was the violation of the statute. Such acts were held constitutional and a proper exercise of the police power. ^^^ The employment of a cMld imder fourteen years of age in violation of the Indiana statute. (Bum's Ann. St. 1901, sec. 7087), in the operation of a sawmill, is negli- gence per se rendering the employer liable for injuries proximately caused by such act. If, however, a chUd so employed is injured by the act of a third party coming on the premises and negligently injuring such child, the employer is not liable as such negligent act is the inter- vention of an independent human agency. ^^^ 220. Marquette Third Vein 221. Inland Steel Co. v. Yedi- Coal Co. V. DieUe, 208 lU. 116, nak, 172 Ind. 423, 87 N. E. 229. 70 N. E. 17. 222. Nickey v. Steuder, 164 Ind. 189, 73 N. B. 117. 928 Mastbe and Sebvant. § 349 Iowa. Iowa Statute, Code Supp. 1902, sec. 4999b, provides among other things; "that every owner, agent, superia- tendent or other persons in charge of a manufacturing or other establishment where machinery is used, shall, if possible, provide such machinery with loose pulleys; properly guard all saws, planers, cogs, gearing, beltings, shaftings, set screws and macMnery of every description; and shall neither permit children under sixteen years of age to assist ia operating dangerous machinery nor permit or direct any female under the age of eighteen years to clean machinery while ia motion." Employment of persons under 16 years of age, under the law (29th Gen. Assem., p. 108, ch. 140, sec. 2), providing that all saws and machiuery in factories shall be properly guarded and that children under sixteen years shall not be permitted to operate dangerous machinery of any Mnd, is not reUeved of its neghgent character merely because notice had not been given the employer by the bureau of labor as required by see. 4 providing for punishment for failure to comply with the law after notice. So held where a minor imder sixteen years was operating a circular saw.^^' An employee in a laundry engaged in removing a muslin surface cloth on rollers constituting a part of the ironing machine, and putting on a new one, is employed in cleaning machinery within the statute providing that no female under eighteen years of age shall be directed to clean machinery while in motion. A girl under eighteen years of age, so employed, is presumptively incapable of appreciating the danger attending the employment and does not assume the risk therefore, unless the employer affirmatively shows that she had sufficient capacity to appreciate the risk. This ordinarily is a question for the jury. "2* 223. Woolf V. Nauman Co., dry Co., 134 Iowa, 38, 111 N. W. 128 Iowa, 261, 103 N. W. 785. 417. 224. Bromberg v. Evans Laun- § 349 Eelating to Employment op Servants. 929 Michigan. The Michigan Statute (Pub. Acts 1901, Act No. 113, sec. 3), prohibits the emplo3rm.ent of a child under sixteen years of age in any establishment whereby its life or limb is endangered. Such an employment, to operate a machine dangerous to hfe and limb, is actionable negligence where the minor is injured. The minor does not assume the risk. 2 26 But the violation of the statute does not render the employer hable for civil damages for injuries to a minor so employed, where such violation is not the proximate cause of the injury. ^^^ Whether the employment of a boy under sixteen years of age to run an electric freight elevator is within the statutory prohibition as endangering life or Umb, is a question for the jury. 2" In an action for injury to a minor under sixteen years of age, it is necessary, in order to take advantage of the pro- hibition of the statute, to plead that it was negligence to employ the boy at the particular work. Whether the emplojrment or work is dangerous to life or limb or not, is a fact. "8 Although where a boy under sixteen years of age was employed to work in violation of the Michigan statute, it is negligence as matter of law, yet the employer is not foreclosed from showing that the injury received by such an employee was the result of his own carelessness and hence he was guilty of contributory negligence. ^^* The statute referred to was amended by Act No. 171, Pub. Acts 1905, so as to prohibit the employment of children under fourteen and prohibit the emplojrment of children under sixteen where the work is dangerous to life and limb, and while it does not expressly provide for a 225. Sterling v. Union Carbide Co., 147 Mich. 676, 111 N. W. 197. Co., 142 Mich. 284, 105 N. W. 755. 228. Van Wyek v. Dickinson, 226. Borck v. Micliigan Bolt & 148 Mich. 418, 111 N. W. 1033. Nut Works, 111 Mich. 129, 69 229. Beghold v. Auto Body Co., N. W. 254. 149 Mich. 14, 112 N. W. 691, 14 227. Braasch v. Michigan Stove L. R. A. (N. S.) 609. 1 M. & S.— 59 930 Masteb and Seevant. § 350 right of action to persons injured in violation thereof, it raises a duty to and for the benefit of the class of persons mentioned, who may maintain an action for his dam- ages.^'" The mere fact that a minor told his employer that he was over sixteen and the employer had good reason to believe he was, does not affect his liability, if in fact the child was under sixteen. ^'^ IV. Emplotment of physician or surgeon in case op ACCIDENTS. § 350. Duty of master. Whether a legal obligation rests upon the master, where a servant is injured while in the i)erformance of his duties, to employ or secure immediate medical attendance, is a question upon which courts are not fully in accord. That there exists a moral obligation so to do is not open to question. It has been held by the courts of Alabama, Colorado, Kansas and Illinois, that an employer (a railroad company) is under no such legal obligation, ^*^ and inferentially by many other courts in determining the question of the scope of authority of agents or servants in employing medical assistance. The ground upon which the cases rest is that the obligations of the master must arise upon contract. It seems the courts of Indiana have extended ihe duty of the master in this respect, and held to the doctrine that it is the master's duty to furnish immediate medical assistance in case of an emergency, but such duty is limited to oases of strict and urgent neces- sity and expires with the emergency. ^^' 230. Syneszewski v. Scliinidt, 405; Clark v. Missouri Pac. R. Co., 153 Mich. 438, 116 N. W. 1107. 48 Kan. 654, 29 Pac. 1138; Union 231. Syneszewski v. Schmidt, Pac. R. Co. v. Winterbotham, 52 153 Mich. 438, 116 N. W. 1107; Kan. 433, 34 Pac. 1052; Toledo, Braasch v. Michigan Stove Co., Wabash & Western R. Co. v. Prince, 153 Mich. 652, 118 N. W. 366, 20 50 HI. 26; Denver & R. G. R. Co. L. R. A. (N. S.) 500. V. Hes, 25 Colo. 19, 63 Pac. 222. 232. Sevier v. Birmingham S. 233. Terre Haute & I. R. Co. v. & T. R. R. Co., 92 Ala. 258, 9 So. McMurray, 98 Ind. 358, 49 Am. §§ 351, 352 Relating to Employment of Sebvants. 931 Even in such a case the master is not clothed with the power to dictate to the injured servant what particular physician or surgeon shaU treat him. The servant may exercise his choice, and in such event the emergency ceases. ^'^ § 351. Authority of agent to employ. The duty generally, as stated, to employ medical assist- ance, arises only upon contract. The question most fre- quently before the courts is whether a particular agent or servant was clothed with such authority so to contract, solely by reason of his position. It was held by the Michigan court (the judges being equally divided) that a railroad yard master whose business was charge of the yard, with authority to hire and discharge men, had no authority, by virtue of his office alone, to bind the railroad company emplojdng him, in the employment of a surgeon to attend one of the men under him, who had been run over and injured by one of the company's cars.^'^ There are authorities, however, which hold parties liable in certain emergencies for the acts of their managers or foremen in employing physicians during the emergency only. ^^^ Such implied authority, where it exists, is not applicable to those lines of employment which do not subject the em- ployee to unusual hazards and dangers. It cannot be assumed, in the absence of evidence, that employment in a laundry is so attended.''" § 352. Competency of surgeon employed. The duty of a raUroad company which has undertaken to care for and treat disabled employees is that of the Rep. 752; Ohio & Mississippi R. Arkansas So. R. Co. v. Loughridge, Co. V. Early, 141 Ind. 73, 40 N. E. 65 Ark. 300, 45 S. W. 907; Louis- 257, 28 L. R. A. 546. ville, etc., R. Co. v. Smith, 121 Ind. 234. Ohio & Mississippi R. Co. 353, 22 N. E. 775, 6 L. R. A. 320. V. Early, 141 Ind. 73, 40 N. E. 257, See Holmes v. McAllister, 123 28 L. R. A. 546. Mich. 493, 82 N. W. 220, 48 L. R. 235. Marquette & Ontonagon A. 396. R. Co. V. Taft, 28 Mioh. 289. 237. Holmes v. McAllister, 123 236. St. Louis, etc., R. Co. v. Mich. 493, 82 N. W. 220, 48 Hoover, 53 Ark. 377, 13 S. W. 1092; L. R. A. 396. 932 Master and Seevant. § 352 exercise of reasonable diligence in the selection and reten- tion of competent surgeons. This duty extends to dis- charging one such whom, it knows or by proper diligence could have learned to be incompetent from the use of intoxicants.^'* The master, having exercised due diligence in the employment of a surgeon, is not liable for the malprac- tice of one, in treating injured employees. ^'^ Nor is his duty extended where such an employee is treated in a hospital which he maintains for gratuitous treatment of such employees."^" Nor where such an institution is maintained by con- tributions of the master and small sums which are de- ducted from the wages of employees.^" However, the last proposition above stated, is not approved by the Washington court, which has held that the master is Hable for damage sustained while being treated therein caused by the unfitness or want of skill. ^*^ It has been stated that in order to hold the master hable for the incompetency of a surgeon selected by him to treat his employee, the incompetency of the surgeon must be proven, and there must be evidence of a want of reasonable care on the part of the master in his selection, or actual notice of his unfitness, or proof of such acts of neghgence as would have affected the master with notice had he exercised due oversight and supervision."*' 238. Wabash R. Co. v. Kelley, 240. Eighmy v. Union Pae. R. 153 Ind. 119, 52 N. E. 152, 54 Co., 93 Iowa, 538, 61 N. W. 1056, N. E. 752. 27 L. R. A. 296. 239. Maine v. Chicago, B. & 241. Union Pao. R. Co. v. Q. R. Co., 109 Iowa, 260, 70 N. W. Artist, 9 C. C. A. 14, 60 Fed. 365, 630, 80 N. W. 315; Atchison, T. & 19 U. S. App. 612, 23 L. R. A. 581. S. F. R. Co. V. Zeiler, 54 Kan. 340, 242. Richardson v. Carbon HiU 38 Pac. 282; Louisville & N. R. Co. Coal Co., 6 Wash. 52, 32 Pao. V. Foard, 104 Ky. 456, 47 S. W. 1012, 20 L. R. A. 338; Sawdey v. 342; Eighmy v. Union Pac. R. Co., Spokane Falls & N. R. Co., 30 93 Iowa, 538, 61 N. W. 1056, 27 Wash. 349, 70 Pao. 972, 94 Am. L. R. A. 296; South Florida R. Co. St. Rep. 880. V. Price, 32 Fla. 46, 13 So. 638; 243. Big Stone Gap Iron Co. Poling V. San Antonio & A. P. R. v. Ketron, 102 Va. 23, 45 S. E. Co., 32 Tex. Civ. App. 487, 75 740, 102 Am. St. Rep. 839. S. W. 69.