ployment and assumed the incidental risks, it is not reasonable to hold that other risks which he is directed by the master to assume, are to be left to rest upon his shoulders, merely because he did not take upon himself the responsibility of throwing up the employment instead of obeying the order. Many considerations might reasonably induce the servant to hesitate under such circumstances. In many cases the consequences might be very serious should he refuse to obey a lawful command of the master; and any command may not be clearly and manifestly unlawful which directs the doing of nothing beyond the general scope of the business. The servant who refuses to obey must consequently expect to take upon himself the burden of showing a [*556] sufficient *cause for the refusal. However clear the case might be to him, it might not be easy to make a showing satisfactory to third parties, who would naturally assume that the order was given in good faith, and that the master understood better than another the risks to be encountered in his business. The servant, also, it may reasonably be assumed, would, to some extent, have his fears allayed by the commands of a master, whose duty it would be not to send him into danger, and who might, therefore, be supposed to know, when he gave the command, that the dangers were not such or so great as the servant had apprehended.' In these cases, also, the age and immaturity the duty of the master to notify the servant. Perry . Marsh, 25 Ala. 659; Baxter v. Roberts, 44 Cal. 187; S. C. 13 Am. Rep. 160; Strahlendorf v. Rosenthal, 30 Wis. 674; West v. St. Louis, &c., R. R. Co., 63 Ill. 545; Paulmier v. Erie Railway, 34 N. J. 151. A boy hired for one service and sent upon another much more dangerous, was held entitled to recover for an injury suffered in the latter. Railroad Co. v. Fort, 17 Wall. 553. And see Chicago, &c., R. R. Co. v. Bayfield, 37 Mich. 205. In Lalor . Chicago, &c., R. R. Co., 52 Ill. 401; S. C. 4 Am. Rep. 616, the declaration averred an employment of the plaintiff's intestate as a common laborer in the business of loading and unloading cars, and for no other purpose; and that while he was engaged in loading a freight car with iron, the deceased was ordered by the superintendent or foreman of the company, employed to manage, direct and superintend the business of the company about the depot, to couple and connect a freight car with other cars, contrary to the special engagement of the deceased, &c., in doing which he was crushed to death. This was held to set out a good cause of action. "The company was constructively present, by and through this officer, and must be charged accordingly. It was, then, by the direct command of the company the deceased was exposed to this peril, and one out of the line of the business he of the child are of the highest importance; for a child, inexperienced in affairs and ignorant of the law, might well believe the obligation to obey was implicit, and might do so, consequently, under a species of coercion to which the will was wholly subjected.' 4. The master may also be negligent in not exercising ordinary care to provide suitable and safe machinery or appliances, or in making use of those which he knows have become defective, but the defects in which he does not explain to the servant, or in continuing ignorantly to make use of those which are defective, where his ignorance is due to a neglect to use ordinary prudence and diligence to discover defects. *The point here is, not that the master warrants the [*557] strength or safety of his machinery or appliances, but that he is personally negligent in not taking proper precautions to see that they are reasonably strong and safe. The law does not require him to guaranty the prudence, skill or fidelity of those from whom he obtains his tools or machinery, or the had contracted to perform. He was killed by the negligence of the driver in charge of the locomotive while thus exposed. The law would be lamentably deficient did it furnish no remedy in such a case." BREESE, Ch. J., p. 404. See, also, Indianapoolis, &c.,R. R. Co. v. Love, 10 Ind. 554; Benzing v. Steinway, 101 N. Y. 547; Jones v. Lake Shore, &c., Co., 49 Mich. 573; Haley v. Case, 142 Mass. 316; Lee v. Woolsey, 109 Penn. St. 124; Lorentz v. Robinson, 61 Md. 64. The master is liable unless to obey is plainly to imperil life or limb. Stephens . Hannibal, &c., Co., 86 Mo. 221. But if the servant knows the danger to be incurred, mere fear of discharge for disobedience will not excuse him. Russell v. Tillotson, 140 Mass. 201. 1 Fort v. Railway Co., 2 Dill. 259; Railroad Co. v. Fort, 17 Wall. 553. If one is called to do work outside his general duty, the question whether he knew or ought to have known the risk is one of fact. Ferren v. Old Colony R. R., 143 Mass. 197. But if a laborer is required to act as foreman a part of the time and after doing so for a time is injured he cannot recover. He accepts the risk. Leary v. Boston &c., Co., 139 Mass. 580. So if a mature and experienced servant consents to do work outside of that he engaged to do; Cole v. Chicago, &c., Co., 37 N. W. Rep., 84 (Wis.,) Where a servant during his noon hour remained on the master's premises, and was called by the foreman to do dangerous work, the master is liable. Broderick v. Detroit, &c., Co., 56 Mich. 261. But not if called to do work for the personal benefit of his immediate superior. Hurst v. Chicago, &c., Co., 49 Ia., 76. Nor if asked to do work outside his business by a fellow servant. Pittsburgh &c., Ry. Co. v. Adams, 105 Ind. 151; Osborne Knox, &c., Co., 68 Me. 49. See Railroad Co. v. McDaniel, 12 Lea, 386. . strength or fitness of the materials they make use of. If he employs reasonable care and prudence in selecting or ordering what he requires in his business, such as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him; but this at his peril he must employ, and the duty is not one he can delegate so as to relieve himself from the contingent liability in case of failure in performance.' If, therefore, an injury results to the servant, from a failure to exercise reasonable care and prudence in this regard, the master may be and ought to be held responsible.' It has been so often affirmed, and is so well established, that the master is not guarantor of the safety of machinery which he puts into the hands of his servants, and is responsible only where he has failed to employ reasonable care and skill in its selection, that we content ourselves here with a reference to a few cases recognizing the principle: Readhead v. Midland R. Co., 2 Q B. 412; S. C. in Exch. Chamber, L. R. 4 Q. B. 379; Ladd v. New Bedford R. R. Co., 119 Mass. 412; S. C. 20 Am. Rep. 331; Ford . Fitchburg R. R. Co., 110 Mass. 240; S. C. 14 Am. Rep. 598; Indianapolis, &c., R. R. Co. v. Love, 10 Ind. 554; Fort Wayne, &c., R. R. Co. . Gildersleeve, 33 Mich. 134; Toledo, &c., R. R. Co. v. Fredericks, 71 Ill. 294; Camp Point Manuf. Co. v. Ballou, 71 Ill. 417; Indianapolis, &c., R. R. Co. v. Flanigan, 77 Ill. 365; Columbus, &c., R. R. Co. v. Troesch, 68 Ill. 545; S. C. 18 Am. Rep. 578; Mobile, &c., R. R. Co. v. Thomas, 42 Ala. 672; Patterson . Pittsburgh, &c., R. R. Co., 76 Penn. St. 389; S. C. 18 Am. 412; Gibson v. Pacific R. R. Co., 46 Mo. 163; Lewis v. St. Louis, &c., R. R. Co., 59 Mo. 495; Flike. Boston, &c., R. R. Co., 53 N. Y. 549; Kelley v. Norcross, 121 Mass. 508; Shanny v. Androscoggin Mills, 66 Me. 420; Umback . Lake Shore, &c., Co., 83 Ind. 191; Painton v. Nor. Centr., &c., Co., 83 N. Y. 7; Hobbs v. Stauer, 62 Wis. 108. If the defect in an appliance could have been discovered by proper and careful inspection, the master is liable. Spicer v. South Boston, &c., Co., 138 Mass. 426; Covey . Hannibal, &c., Co., 86 Mo. 635; Chicago, &c., R. R. Co. v. Platt, 89 Ill. 141. See post, p. *560. Keegan v. Western R. R. Co., 8 N. Y. 175, is a leading case. The injury occurred from continuing to use a defective and dangerous locomotive after notice to the company of its dangerous condition. And see McGatrick v. Wason, 4 Ohio, (N. &.) 566; Cayzero. Taylor, 10 Gray, 274, Columbus, &c., R. R. Co. v. Arnold, 31 Ind. 174; Lewis o. St. Louis, &c., R. R. Co., 59 Mo. 495; S. C. 21 Am. Rep. 385; Long v. Pacific R. R. Co. 65 Mo. 225; Wedgewood Chicago, &c, R R. Co., 41 Wis. 478: Harper e. Indianapolis, &c., R R. Co., 47 Mo. 567; S.C. 4 Am. Rep. 353; Chicago, &c., R. R. Co. v. Taylor, 69 Ill. 461; S. C. 18 Am. Rep. 626; Mullan . Philadel phia, &c., R. R. Co., 78 Penn. St. 25; S. C. 21 Am. Rep. 2; Wonders. Baltimore, &c., R. R. Co., 32 Md. 411; S. C. 3 Am. Rep. 143. In Noyes t Smith, 28 Vt. 59; a declaration was sustained which charged the defend *5. The master's negligence may also consist in em- [*558] ploying servants who are wanting in the requisite care, skill or prudence for the business entrusted to them, or in con ants with negligence in putting the plaintiff, their servant, in charge of an insufficient engine, whose insufficiency was unknown to the plaintiff, and but for the want of care and diligence would have been known to the defendants. A similar doctrine is declared in Snow o. Housatonic R. R. Co., 8 Allen, 441; Seaver v. Boston, &c., R. R. Co., 14 Gray, 466; Hackett . Middlesex Manuf. Co. 101 Mass. 101; Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 521; Louisville, &c., R. R. Co. v. Caven, 9 Bush, 559; S. C. 15 Am. Rep. 740; Shanny o. Androscoggin Mills, 66 Me. 420, and Illinois Central R. R. Co. v. Welch, 52 Ill. 183. The peril in the case last cited was the projecting awning of the station house, which was liable to strike a passing car. Say the court: "The evidence shows that the peril had long before been observed by other employees, and the attention of both the division superintendent and division engineer called to it. This circumstance takes away all excuse from the company, and brings the case within the legal proposition of appellant's counsel, since it was a peril known to the employer and not revealed to the employee." The rule has been applied to the case of a railroad company which was charged with negligence in permitting its road to become blocked with snow and ice, and a car to be out of repair, by means whereof the plaintiff was injured. Fifield v. Northern R. R. Co., 42 N. H. 225. Compare Waller v. S. E. Railway Co., 2 H. & C. 102; Columbus, &c., R. R. Co. v. Webb, 12 Ohio, (N. s.) 475; Toledo, &c., R. R. Co. v. Conroy, 61 Ill. 162; Toledo, &c., R. R. Co. v. Ingraham, 77 Ill. 309. A master is not liable to a servant if another servant injures him by using for one purpose a tool intended for another which breaks under the use, although the tool was defective. Moran v. Brown, 27 Mo. App. 487. Of course if the case rests upon a want of due care, the fact that the employer had no actual knowledge of the defect is no excuse. But to charge the master with notice that a tool is out of repair, knowledge of the defect must be brought home to a servant having some authority in the prem. ises. Solomon R. R. Co. v. Jones, 20 Kan. 601. For a latent defect arising in a machine originally sound, not discoverable by ordinary tests, the master is not liable. Louisville, &c., Co. v. Allen, 78 Ala. 494. But he is, if he has not used ordinary care to discover it. Clowers v. Wabash, &c., Ry. Co., 21 Mo. App. 213; Current v. Miss., &c., Co., 86 Mo. 62. See Pittsburgh, &c., Co. v. Adams, 105 Ind. 151. The master is not liable if a rope breaks from a hidden original fault or an apparent one arising from use and not brought to his notice. He is, however, bound to know that a rope originally sound will wear out. Baker v. Allegheny, &c., R. R. Co., 95 Penn. St. 211. See Johnson v. Boston Tow Boat Co., 135 Mass. 209. He must make reasonable efforts to keep his machinery in repair. Solomon R. R. Co. v. Jones, 30 Kan. 601; Richmond, &c., Co. v. Moore, 78 Va. 93. The duty to repair is, like that to furnish originally safe machinery, a master's duty not escaped by delega tion. Fuller v. Jewett, 80 N. Y. 46, See Penn. Co. v. Mason, 109 Penn. St. 296; Wilson v. Willimantic, &c., Co., 50 Conn. 433; Nor. Pac. &c.. tinuing such persons in his employ after their unfitness has become known to him, or when, by the exercise of ordinary care, it would have been known. "The servant when he engages to run the risks of the service, including those arising from the negligence of fellow servants, has a right to understand that the master has taken reasonable care to protect him from such risks, by associating him only with persons of ordinary skill and care.” The obligation to employ suitable servants is precisely the same as that to provide suitable machinery and appliances for the business. It has been thus stated in a railroad case: "A railroad corporation is bound to provide proper [*559] road, machinery and equipment, and proper servants. It must do this through appropriate officers. If acting through appropriate officers it knowingly and negligently employs incompetent servants, it is liable for an injury occasioned to a fellow servant by their incompetency. If it continues in its employment an incompetent servant after his incompetency is known to Co., v. Herbert, 116 U. S. 642. While the master performs his whole duty by furnishing suitable means and competent men for the keeping of a machine in ordinary repair and running order, McGee v. Boston Cordage Co., 139 Mass. 445; Daley v. Boston &c. Co., 16 Atl. Rep. 690. (Mass.), yet, if the defect is substantial and renders the machine unfit for use and dangerous, he is not relieved by showing that he has furnished such means and men. Rogers v. Ludlow Mfg. Co., 144 Mass. 198; Rice v. King Philip Mills, Id. 229. In New York where the negligence charged was a failure to sharpen and reset saws, it is held that the master's duty is performed when he has furnished suitable saws and means for keeping them sharp and properly set and that the setting and sharpening is a servant's duty. Webber v. Piper, 17 N. E. Rep. 216. Cars coming from another road need not be inspected for hidden defects. Gutridge v. Miss., &c., Co., 7 S. W. Rep. 476 (Mo); Ballou v. Chica go, &c., Ry Co., 54 Wis. 257. See, further, on this, Mackin v. Boston, &c., Co., 135 Mass. 201; Mich. Centr., &c., Co. v. Smithson, 45 Mich. 212; Brann. Chicago, &c., Co., 53 Is. 595; Chicago, &c., Co. v. Avery, 109 Ill. 314; Fay v. Minn., &c., Co., 30 Minn. 231. But the owner of a car used without his permission on another road in its business owes no duty to the latter's servant. Sawyer v. Minn., &c., Ry Co. 35 N. W. Rep. 671 (Minn.) 1 ALDERSON, B., in Hutchinson t Railway Co., 5 Exch. 343. See Als bama, &c., R. R. Co. v. Waller, 48 Ala. 459; New Orleans, &c., RR Co. v. Hughes, 49 Miss. 258; Moss # Pacific R. R. Co., 49 Mo. 167; S. C.8 Am. Rep. 126; Mich. Cent. R. R. Co. v. Dolan, 32 Mich. 510; Columbus, &c., R. R. Co. v. Troesch, 68 Ill. 545; S. C. 18 Am. Rep. 578; Hogan Cent. Pacific R. R. Co., 49 Cal. 128; Memphis, &c., R. R Co. v. Thomas, 51 Miss. 637; United States, &c., Co. v. Wilder, 116 Ill. 100. |
