ter to see that suitable servants are employed, that his tools, machinery, etc., are reasonably safe, or at least, to see that there is no negligence in employing or procuring them; and the delegate charge the men under him is such an alter ego. Stephens v. Hannibal, &c., Ry. Co., 86 Mo. 221; Texas, &c., R. R. Co. v. Whitmore, 58 Tex., 276; Gunter v. Graniteville, &c., Co., 18 S. C. 262; Patton v. West, &c., R. R. Co.. 1 S. E. Rep. 863 (N. C.); Hussey v. Coger, 39 Hun, 639. See Tyson v. South., &c., R. R. Co., 61 Ala. 554; Brown Sennett, 68 Cal. 225; Slater v. Chapman, 35 N. W. Rep. 106 (Mich.) So is the superintendent of a mine; Mayhew v. Sullivan Min. Co., 76 Me. 100; Beeson v. Green Mt., &c., Co., 57 Cal. 20; Ryan v. Bagaley, 50 Mich. 179. A master mechanic of a railroad; Ohio, &c., Ry. Co. v. Collarn, 73 Ind. 261. A conductor as to the engineer of his train; Chicago, &c., Ry. Co. v. Ross, 112 U. S. 377, and see cases note 1, p. 639, supra. If the master places the entire charge of his business, or a distinct branch of it, in the hands of an agent, exercising no discretion and no oversight, the neglect by the agent of ordinary care in supplying proper machinery, is a breach of duty for which the master is liable. Mullano. Philadelphia, &c., R. R. Co., 78 Penn. St. 25; S. C. 21 Am. Rep. 2. See Malone v. Hathaway, 64 N. Y. 5; S. C. 21 Am. Rep. 573; Hofnagle v. N. Y. Cent. R. R. Co., 55 N. Y. 608. That the duty to furnish safe appliances or place to work cannot be escaped by delegation, see also Wilson v. Willimantic, &c., Co., 50 Conn. 433; Krueger v. Louisville, &c., Co., 111 Ind. 51; Sanborn v. Madura, &c., Co., 70 Cal. 261; Fay v. Minn., &c., Ry. Co., 30 Minn. 231; Kelly v. Erie, &c., Co., 34 Minn. 321; St. Louis, &c., Ry. Co. v. Harper, 44 Ark. 524; Ind. Car Co. v. Parker, 100 Ind. 181; Moore . Wabash, &c., Ry. Co., 85 Mo. 588. So as to the duty to keep appliances in repair. Hough &. Railway Co., 100 U. S. 213: North. Pac. R. R. Co. v. Herbert, 116 U. S. 642. Where a master gave proper orders and employed a competent master mechanic but the workmen failed to repair properly an engine boiler which exploded and injured the engineer, the master was held liable. Fuller v. Jewett, 80 N. Y. 46; Penn.. &c., Co. v. Mason, 109 Penn. St. 296. Otherwise, if after the boilermakers had finished work it explodes and injures machinists at work at it while still in the shop. Murphy. Boston, &c., Co. 88 N. Y. 146. Where a foreman, ordered to replace a rope when worn out, neglected to do so, and a workman was hurt, the master was held not liable. His duty is to furnish suitable means and competent men to keep his appliances in order when the defect is one that must frequently arise from use. The servants who use the appliances and those whose duty it is to maintain them in order are fellow servants. Johnson v. Boston Tow Boat Co, 135 Mass. 209; McGee v. Boston Cordage Co., 139 Mass. 445. See Daley . Boston, &c., R. R. Co., 16 Atl. Rep. 630 (Mass.) A similar ruling has been made as to a miner and a servant employed to repair the timber work in the mine. Quincy Min. Co . Kitts, 42 Mich. 34. But if a machine is dangerous from lack of repair and the machinists repair it only when it ceases to do good work without regard to its condition as a dangerous machine, the master is not necessarily relieved by showing that he has employed competent machinists and to whom he entrusts the duty, stands, in respect thereto, in the master's place. It is also, as has been shown, the duty of the master not to send the servant upon dangerous service which he has not undertaken for; and if he places the servant under the orders of another who requires him to perform such dangerous service, whereby he is injured, the wrongful act is properly attributable to the master himself.' Contributory Negligence. Where the master is sued by his servant for an injury which it is claimed has been occasioned by his negligence, it is very properly and justly held that the plaintiff is not to recover if his own negligence contributed with that of the defendant in producing the injury.' The rules here are furnished suitable means for repair. Rogers v. Ludlow Mfg. Co., 144 Mass. 198. Rice v. King Philip Mills, 144 Mass. 229. Notice of want of repair to foreman in charge of such work is notice to the master; Brabbitts v. Chicago, &c., R. R. Co., 38 Wis. 289; Schultz v. Chicago, &c., Co., 48 Wis. 875. This duty applies to keeping a railway track safe; Elmer v. Locke, 135 Mass. 575; Davis v. Cent. Vt. &c., Co., 55 Vt. 84; Calvo v. Railroad Co., 23 S. C. 526, and cases in note 1, p. 649, supra. 1 This is well shown by POTTER, J., in Mann v. Oriental Print Works, 11 R. I. 152. And, see Chicago, &c., R. R. Co. v. Bayfield, 37 Mich. 205; Frandsen v. Chicago, &c., R. R. Co., 86 Iowa, 372; Cook v. St. Paul, &c., Co., 84 Minn. 45; Douglas v. Texas, &c., Co., 63 Tex. 564; Atlanta, &c., Co. v. Speer, 69 Geo. 137. Compare Allen v. New Gas Co., 1 Exch. Div. 251. So the master is liable, if a foreman, knowing its condition, orders a workman to use a defective machine. Ind. Car Co. v. Parker, 100 Ind. 181. Where a child was employed to work under a "boss" in a certain room and was sent by the boss to work elsewhere and was there the same that are applied in other cases of contributory negli gence; and all that is special in their application springs [*564] from *the obligation that may, under some circum stances, rest upon the servant to report dangers to the master. It has often been held that if a servant sues the master for an injury which has resulted from a peril which had come to the knowledge of the plaintiff and ought to have been known to the master, it may justly be held to be contributory negli gence on the plaintiff's part if he failed to report it.1 It may also be remarked that in all cases where the servant claims to recover on the ground of the master's negligence, the burden of proof will be upon him, not only because as a plain of the rules of the master. Penn. &c., Co. v. Whitcomb, 111 Ind. 212; Deeds v. Chicago, &c., Co., 37 N. W. Rep. 124 (la ); North. Centr. Ry. Co. v. Husson, 101 Penn. St. 1; Pilkenton v. Gulf, &c., Ry. Co., 7 S. W. Rep. 805 (Tex.) But such disobedience is not conclusive of contributory negligence if the master suffers the rule to be habitually disregarded or makes its violation necessary or probable. Hayes v. Bush, &c., Mfg. Co., 41 Hun, 407. If a servant left free to choose a method of doing work, needlessly adopts a dangerous way the master is not liable. St. Louis Bolt, &c., Co. v. Brennan, 20 Ill. App. 555. When in carrying out the master's personal direction, the servant does what may or may not be negligent, the question of his being at fault is for the jury. Woodward v. Shumpp, 14 Atl. Rep. 378. 'Ladd v. New Bedford, &c., R. R. Co., 119 Mass. 412; S. C. 20 Am. Rep. 331; LeClair v. St. Paul, &c., R. R. Co., 20 Minn. 9; Sullivan v. Louisville Bridge Co., 9 Bush, 81; Patterson v. Pittsburgh, &c., R. R. Co., 76 Penn. St. 389; S. C. 18 Am. Rep. 412; Malone v. Hawley, 46 Cal. 409; Dil lon v. Union Pacific R. R. Co., 8 Dill. 319; Belair v. Chicago, &c., R. R. Co., 43 Iowa, 662; Davis v. Detroit, &c., R. R. Co., 20 Mich. 105; Mad River, &c., R. R. Co. v. Barber, 5 Ohio, (N. 8.) 541; St. Louis, &c., R. R. Co. t. Britz, 72 Ill. 256. It has been held that an instruction that a railroad company would not be liable notwithstanding the unsafe condition of the track if plaintiff, a servant, knew, or could by ordinary diligence have known, the state of the track, was properly refused; that it was not the business of the servant to ascertain whether the machinery and structure of the road are defective; but that the duty of the company is to keep them in a safe condition, and it is responsible for a failure to do so. Porter v. Hannibal, &c., R. R. Co., 60 Mo. 160. But if the servant has full knowledge and makes no report or objection, he takes the risk. Kroy v. Chicago, &c., R. R. Co., 32 Iowa, 357; McGlynn v. Brodie, 31 Cal. 376. So if he knows of his fellow servant's habit of doing business contrary to the rules or in an improper way and acquiesces in it. Youll e. Sioux City, &c., Co., 66 Ia. 346; Lake Shore, &c., Ry. Co. v. Knittal, 33 Ohio St. 468. tiff he must make out his case, but also because all presumptions will favor the proper performance of duty.' General Summary. Perhaps this whole subject may be accurately summed up in a single sentence as follows: The rule that the master is responsible to persons who are injured by the negligence of those in his service, is subject to this general exception that he is not responsible to one person in his employ for an injury occasioned by the negligence of another in the same service, unless generally or in respect of the particular duty then resting upon the negligent employee, the latter so far occupied the position of his principal as to render the principal chargeable for his negligence as for personal fault. Whitebreast Coal, &c., Co., 65 Ia. 747; Louisville, &c., Co. v. Allen, 78 Ala. 494; Painton v. Nor. Centr. Ry. Co., 83 N. Y. 7; Murphy v. St. Louis, &c., Co.. 71 Mo. 202; St. Louis, &c., Ry. Co. v. Harper, 44 Ark. 524; East Tenn. &c., Co. v. Stewart, 13 Lea, 432 [*565] *CHAPTER XIX. NUISANCES. In the Commentaries of Mr. Justice BLACKSTONE a nuisance is defined as being anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.' By hurt or annoyance here is meant, not a physical injury necessarily, but an injury to the owner or possessor thereof, as respects his dealing with, possessing or enjoying them. Strictly construed the definition would include those injuries done by the direct application of force, and which are known in the law as trespasses; but these were not meant to be embraced, although some of them may be treated either as trespasses or nuisances, at the option of the party injured. For example, to keep a vicious animal after notice of his vicious propensity, is to maintain a nuisance; but when the vicious beast attacks and injures an individual, the party injured may treat this violence as the unlawful violence of the owner and bring suit in trespass. It should be observed also that a nuisance which will support a private action may consist in such interference with a public easement or with any other public right as specially annoys or injures an individual; such, for instance, as the blocking up of a public way of any sort when one is endeavoring to make use of it. In these cases the public nuisance becomes a private nuisance also, and any sufficient definition must include cases of this nature. An actionable nuisance may, therefore, be said to be anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights. 13 Bl. Com. 215. The intention is immaterial to the inquiry whether an act is a nuisance. Bonnell . Smith, 53 Ia. 281. Brown v. Hoburger, 52 Barb. 15; Milman. Shockley, 1 Houst. 444; Meibus v. Dodge, 38 Wis. 300; S. C. 20 Am. Rep. 6. Van Leuven v. Lyke, 1 N. Y. 515, 516; Wales v. Ford, 8 N. J. 267; Dolph v. Ferris, 7 W. & S. 267; Morse v. Nixon, 6 Jones, (N. C.) 293; Coggswell o. Baldwin, 15 Vt. 404. |