its officers, or is so manifest that its officers, using due care, would have known it, such continuance in employment is as much a breach of duty and a ground of liability as the original employment of an incompetent servant."1

6. It is also negligence for which the master may be held responsible, if knowing of any peril which is known to the servant also, he fails to remove it in accordance with assurances made by him to the servant that he will do so. This case may also be planted on contract, but it is by no means essential to do so. If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover the assurances remove all ground

'GRAY, J., in Gilman v. Eastern R. R. Co., 13 Allen, 433. The same point is strongly put by FOLGER, J., in Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 521, 533. See, also, Tarrant

. Webb, 18 C. B. 797; S. C. 37 E. L. & Eq. 281; Illinois Cent. R. R. Co. v. Jewell, 46 Ill. 99; Harper v. Indianapolis, &c., R. R. Co., 47 Mo. 567, and cases cited; Moss v. Pacific R. R. Co., 49 Mo. 167; Pittsburgh, &c., R. R. Co. v. Ruby, 38 Ind. 294; Davis v. Detroit, &c., R. R. Co., 20 Mich. 105; McMahon v. Davidson, 12 Minn. 357; Weger . Pennsylvania R. R. Co., 55 Penn. St. 460; Huntingdon, &c., R. R. Co. v. Decker, 82 Penn. St. 119; S. C. 84 Penn. St. 419; Chapman ". Erie R. Co., 55 N. Y. 579; Blake v. Maine Centr. R. R. Co., 70 Me. 60; Maxwell . Hannibal, &c., Co., 85 Mo. 95; Ind. Mfg. Co. v. Millican, 87 Ind. 87; Nordyke, &c., Co. v. Van Sant, 99 Ind. 188. In McDermott v. Hannibal, &c., Co., 87 Mo. 285, it is held that the master is liable whether he knew the unfitness or not, if the Bervant injured did not. The duty cannot be escaped by delegation. Fay . Minn., &c., Co., 30 Minn. 231;

Quincy Min. Co. v. Kitts, 42 Mich. 34; Mann v. Pres., &c., Del., &c., Co., 91 N. Y. 495. As to the degree of care required in the selection of servants, see Mobile, &c., R. R. Co. v. Thomas, 42 Ala. 672, 715; Alabama, &c., R. R. Co. v. Waller, 48 Ala. 459. It is not enough that such care as is ordinary is used if that is not reasonable under all the circumstances. Wabash Ry. Co. v. McDaniels, 107 U. S. 454. If a servant, originally fit, is retained after the master might, with reasonable care, know he has become unfit, the master is liable. Mich. Centr., &c., Co. v. Gilbert, 46 Mich. 176; Hilts v. Chicago, &c., Ry. Co., 55 Mich. 437. See Neilon v. Kansas, &c., Ry. Co., 85 Mo. 599. But the mere proof of specific careless acts is not enough to charge the master with knowledge of his incompetence. Huffman v. Chicago, &c., Ry. Co., 78 Mo. 50. Nor is a single negligent act of a servant enough to show him incompetent. Balt., &c., Co. v. Neal, 65 Md. 438. Nor is his laziness. Corson v. Maine Centr., &c., Co., 76 Me. 244.

for the argument that the servant, by continuing the employment, engages to assume its risks. So far as the particular peril is concerned the implication of law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that parties may and should, where practicable, come to an understanding between themselves regarding matters of this nature.1

[*560]

*7. If a servant is injured by the negligence of a fellow servant and that of the master combined, he may recover of the master for the injury,' for the master is at least one of two joint wrong-doers in such a case, and as such is responsible under rules heretofore given.

8. As the servant only undertakes to assume the hazards of his own employment, it must follow that if the master carries on another and wholly distinct business, an injury occasioned by the negligence of a servant in such other business, not being within the contemplation of the employment, will give ground for an action under the same circumstances which would render liable any stranger who might have been the employer of the negligent servant.

Liability where the Master delegates his Superintendence. The foregoing enumeration of cases is sufficient to show that the master is liable in all cases where the injury has resulted

See Patterson v. Wallace, 1 Macq. H. L. 748, S. C. 28 Eng. L. & Eq. 48; Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 521; Patterson v. Pittsburgh, &c, R. R. Co., 76 Penn. St. 389; S. C. 18 Am. Rep. 412; Conroy . Vulcan Iron Works, 6 Mo. App. 102. The master is liable if the defect or danger is such that an ordinarily prudent servant would continue at the work after promise. Hough v. Railway Co., 100 U. S. 213. Otherwise not. Dist. of Col. v. McElligott, 117 U. S. 621. If in the particular case the business of the master is entrusted to another, his assurance must be taken as that of the master himself, but the assurance of any subordinate servant could not be so taken. Fort Wayne

&c., R. R. Co. v. Gildersleeve, 83 Mich. 133. See Nelson. Winona, &c., Co., 33 N. W. Rep., 908 (Minn.); Ind., &c., Co. v. Watson, 14 N. E. Rep. 721 (Ind). It is sufficient if the promise is made not to plaintiff individually but to his gang of workmen in his presence. Atchison &c. Co., v. Sadler, 16 Pac. Rep.,46 (Kan.)

2 Paulmier . Erie R. Co., 34 N. J. 151; Grand Trunk Ry. Co. . Cummings, 106 U. S. 700; Pittsburgh, &c., Co. v. Henderson, 37 Ohio St. 549; Cone . Del. &c., Co., 81 N. Y.206; Ellis v. New York &c., Co. 95 N. Y. 546; Stringham v. Stewart, 100 N. Y. 516; Booth v. Boston, &c., Co. 73 N. Y. 38; Elmer v. Locke, 135 Mass. 575.

from his own negligence, and not from any of the customary risks of the employment.' But there still remains the very serious difficulty of determining what, in particular cases, is fairly imputable to the master as a neglect of personal duty, or on the other hand, is to be regarded as neglect on the part of one of his subordinates, who, though vested with a special authority in the case, and therefore representing the

master *more directly and specially than do servants gen- [*561] erally, is still, for all the purposes of the rules so far given, to be looked upon only as a servant whose negligence is within the ordinary risks of other servants in the same general employment.

We have seen that in some cases the master is charged with a duty to those serving him of which he cannot divest himself by any delegation to others. He is charged with such a duty as regards the safety of his premises, the suitableness of the tools, implements, machinery or materials he procures or employs, and the servants he engages or makes use of. Whoever is permitted to exercise the master's authority in respect to these matters is charged with the master's duty, and the latter is responsible for a want of proper caution on the part of the agent, as for his own personal negligence.'

For this general rule the following additional cases may be cited; Roberts v. Smith 2 H. & N. 213; Mellors. Shaw, 1 Best & S. 437; Ashworth v. Stanwix, 3 El.& El.Q. B.701; Columbus, &c., R. R. Co. v. Webb, 12 Ohio, (N. s.) 475; O'Donnell v. Allegheny Valley R. R. Co., 59 Penn. St. 239; Johnson v. Bruner, 61 Id. 58; Harrison v. Central R. R. Co. 31 N. J. 293; Paulmier v. Erie R. R. Co. 34 N. J. 151; Chicago, &c., R. R. Co. . Harney, 28 Ind. 28; McGlynn v. Brodie, 31 Cal. 376; Chicago, &c., R. R. Co. v. Jackson 55 Ill. 492; Huddleston v. Lowell Machine Shop, 106 Mass. 282. In Flike v. Boston, &c., R. R. Co. 53 N. Y. 549, and Booth. Boston, &c., R. R. Co., 73 N. Y. 38, a railroad company was held liable as for its own negligence

for the act of a subordinate in sending out a train insufficiently supplied with brakemen. But compare Mad River, &c., R. R. Co. v. Barber 5 Ohio, (N. 8.) 541; Skipp . Eastern Counties R., 9 Exch. 223.

Ford . Fitchburg R. R. Co., 110 Mass. 240; Wright . N. Y. Cent. R. R. Co., 25 N. Y. 562; Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 521; Chicago, &c., R. R. Co. v. Jackson, 55 Ill. 492. "As to acts which a master or principal is bound as such to perform toward his employes, if he delegates the performance of them to an agent, the agent occupies the place of the master, and the latter is deemed present and liable for the manner in which they are performed." Corcoran v. Holbrook, 59 N. Y. 517, 520, per RAPALLO, J.; S. C. 17 Am. Rep.

But these are not the only cases in which the master is to be considered as represented by an agent, who for the time being is charged with his duty. A corporation can only manage its affairs through officers and agents, and if it is to be held responsible to its servants for negligence in any case, it must be because some of these are negligent. But whose negligence shall be imputed to the corporation as the negligence of the principal itself? Certainly not that of all its officers and agents, for this would be to abolish wholly, in its application to the case of corporations, a rule alike reasonable and of high importance.

So far as the corporate directors are concerned, no question can be made that for any such purpose they represent the corporation, and their acts, as a board, are the acts of a principal. They constitute the highest and most authoritative expression of corporate volition, and the corporate duties are duties to be

performed by the board. But such board holds only [*562] periodical *meetings, and at other times the powers of

the corporation are usually expected to be, and actually are, exercised by some officer or general superintendent with large discretionary powers. Unless such officer or superintend ent is to be considered as occupying, for all the purposes of the

369. This applied to the case of employment of servants by superintendent. Gormly v. Vulcan Iron Works, 61 Mo. 492; Brabbits v. Chicago, &c., R. R. Co., 38 Wis. 289. And, see Stoddard v. St. Louis, &c., R. R. Co., 65 Mo. 514; Mann v. Pres., &c., Del., &c., Co., 91 N. Y. 495; Quincy Min. Co. v. Kitts, 42 Mich. 34 So of the duty to warn an inexperienced servant of non apparent dangers in the service. Wheeler v. Wason Mfg. Co., 135 Mass. 294; Ryan v. Tarbox, Id. 201; Atlas Eng. Works v. Randall, 100 Ind. 293. If a superior servant, who, as to some duties represents the master in doing a servant's work injures another servant the master is not liable. Thus where a superintendent starts machinery. Crispin v. Babbitt, 81 N. Y. 516; where a foreman, ordered by the master to replace

ropes with new ones when needed, fails to do so; Johnson v. Boston Tow Boat Co., 135 Mass. 209; where a yard. master signals to start an engine; McCosker. Long Isl., &c., Co., 84 N. Y. 77. See Brick . Rochester, &c., Co., 98 N. Y. 211; Willis &. Oreg, &c., Co., 11 Oreg. 257; Quinn v. New Jersey, &c., Co., 23 Fed. Rep. 363; Peterson v. Whitebreast, &c., Co., 50 Ia. 673. Contra, Berea Stone Co. e. Kraft, 31 Ohio St. 287. In Chicago, &c., Co. v. May, 108 Ill. 288, a foreman in ordering the pushing of a car in a yard was held to be performing a master's duty; and see Wabash, &c., Ry. Co. v. Hawk, 12 N. E. Rep. 253 (Ill.); Baldwin v. St. Louis, &c., Co., 68 Ia. 37; Hoke v. St. Louis, &c., Co., 88 Mo. 360; Criswell . Pittsburgh, &c., Ry. Co., 6 S. E. Rep., 31 (W. Va.).

rule now under consideration, the position of the principal itself, it is obvious that there must be assumed in the case of corporations, and indeed in other cases where the whole charge of the business is delegated to another, some risks which the servant does not assume where the master himself takes general charge in person.

It has been seen that the superior position of the negligent servant, as that of a foreman, conductor, etc., is not regarded as affecting the case. But a foreman is not necessarily, or usually perhaps, entrusted with any large share of the master's discretionary authority. Neither is the conductor of a train of cars, except as to the particular duty of taking it safely to its destination. His duty may be and probably is less responsible than that of the telegraph operator who directs his movements and those of others in charge of trains on the line; and if the conductor is to be regarded as principal for some purposes, so should the opera tor be for others. But this would suggest questions and distinctions that could only be confusing, and would preclude the possibility of any settled rule whatsoever. It would seem that the law could go no further than to hold the corporation liable for the acts and neglects of the officer exercising the powers and authority of general superintendent; but that for these it ought to respond to its servants, as for its own acts or neglects. As is said in one case: "When the servant by whose negligence or want of skill other servants of the common employer have received injury is the 'alter ego' of the master, to whom the employer has left everything, then the middleman's negligence is the negligence of the employer, for which the latter is liable. The servant in such case represents the master, and is charged with the master's duty. When the middleman or superior servant employs and discharges the subalterns, and the principal withdraws from the management of the business, or the business is of such a nature that it is necessarily committed to agents as in the case of corporations, the principal is liable for the neglects and omissions of the one charged with the selection of other servants in employing and selecting such *servants, and in the general conduct of the business com- [*563] mitted to his care." It is the personal duty of the mas

1ALLEN, J., in Malone v. Hathaway, 64 N. Y. 5, 9; S. C. 21 Am.

Rep. 573. A foreman or superior servant, with power to hire and dis