but if not, he must be content with his remedy against the assailant of his person. Adjudged cases may be referred to which support that proposition without qualification, but they do not give full scope and effect to the obligation which the carrier assumes towards his passenger, nor to the rights and duties which those relations create and imply.

$398. What passengers do not contract for with the carrier of persons for hire, and what they do contract for.

Passengers do not contract merely for ship-room and transportation from one place to another, but they also contract for good treatment and against personal rudeness and every wanton interference with their persons, either by the carrier or his agents employed in the management of the ship or other conveyance, and for the fulfillment of those obligations the carrier is responsible as principal, and the injured party, in case the obligation of good treatment is broken, whether by the principal or his employees, may proceed against the carrier as the party bound to make compensation for the breach of the obligation. Chamberlain v. Chandler, 3 Mason, 246; Nieto v. Clark, 1 Cliff., 145; Weed v. Panama Railroad Co., 17 N. Y., 362; Keene v. Lizardi et al., 5 La., 431; Block v. Bannerman, 10 La. Ann., 3. Sickness and suffering were experienced by the wife of the plaintiff in the case of Weed v. Panama Railroad Co., in consequence of the failure of the train to arrive at the usual time, and the evidence showed that the detention was the wilful act of the conductor. Proof of that fact having been given, the defendants contended that they were not liable; but the court refused so to instruct the jury, and the court of appeals held that the prayer for instruction was properly refused, as the proof offered, that the act of the conductor was wilful, constituted no defense to the action. High authority exists, if any be needed, in support of the proposition that the owners of a vessel are responsible for the whole conduct of the master while he is on board and in command of the vessel, unless his acts amount to a criminal offense. The Nimrod, 7 Notes of Cas., 559. Civilly speaking, says Dr. Lushington, in that case the owners are responsible for any deviation of the master from that line of conduct which it behooves him to perform, not simply in the navigation of the vessel and in the care of his own seamen, but in the care of those who may be thrown on board his ship, even by accident, as was the fact in this case. Most of the recent cases in which the principle involved in such a controversy is considered proceed upon the ground that where the misconduct of an agent causes a breach of the obligation or contract of the principal, then the principal is liable in an action to the injured party, whether such conduct be wilful or malicious or merely negligent; and it would seem that it must be so, as the cause of action arises from the breach of the obligation, and if so it cannot make any difference whether the breach was occasioned by the act of the principal or of his employees. Qui facit per alium, facit per se. M. & M. Railway Co. v. Finney, 10 Wis., 330; Goddard v. Railroad, 57 Me., 202; Railway Co. v. Hinds, 53 Penn. St., 515.

Conductors and employees of a railroad company represent the company in the discharge of their functions, and being in the line of their duty in collecting the fare or taking up tickets, the corporation is liable for any abuse of their authority, whether of omission or commission, and the same rule must be applied in a suit against the owner of a steamer as the carrier of passengers for the misconduct of the master, as the owners of a vessel carrying passengers for hire are liable for breaches of duty of the master to the passengers equally as they are in case of merchandise committed to their care. 3 Kent, Com. (ed.

1866), 160; B. & O. Railw. Co. v. Blocher, 27 Md., 286; Kane v. Lizardi, 5 La., 431; Sanford v. Railroad Co., 23 N. Y., 344. Owners are liable for the conduct of the master as master during the voyage, and, for any ill-treatment of the passengers by the master in his capacity as such, a remedy may be had against the vessel herself. Abb. Adm., 257. Vessels carrying passengers for hire, says Mr. Justice Nelson, stand on the same footing of responsibility as those carrying merchandise, the passage money in the former case being the equivalent for the freight of the latter; that the vessel as well as the owner is responsible for a breach of a contract with the passenger. S. C., 1 Blatch., 361; Parsons on Ship., 30; The Revenge, 3 Wash., 267; Ralston v. Steamer State Rights, Crabbe, 46. Repeated decisions of the supreme court of Massachusetts are to the same effect, as will sufficiently appear by the following citations: Moore v. Fitchburg R. R., 4 Gray, 465; Hewett v. Swift et al., 3 Allen, 423. Wherever there is a contract between the master and another, the master, says Hoar, J., is responsible for the acts of his servant in executing the contract, although the act is fraudulent and one without his consent. Howe v. Newmarch, 12 Allen, 55; Seymour v. Green wood, 7 Hurl. & Nor., 357; Aycrigg's Ex'rs v. N. Y. & E. Railroad Co., 1 Vroom (N. J.), 462; Penn. R. R. Co. v. Vandiver, 42 Penn. St., 370. Examined in any point of view, the court is of the opinion that the instruction given to the jury was erroneous, and the verdict is set aside and a new trial granted.

§ 399. Master's liability for torts of servant.— Where the master of a vessel ships a minor, knowing that such shipment is against the will of the father of the boy, held, that this is a tort of the master within the scope of his duties for which the owners are liable. Sherwood v. Hall, 3 Sumn., 127.

§ 400. A postmaster is civilly liable for the embezzlement or fraud of his clerks, although he used due diligence and caution in appointing clerks of good repute for fidelity and honesty, who took the oaths required in the postmaster-general's instructions. Dunlop v. Munroe, 1 Cr. C. C., 536.

§ 401. The acts of a servant must be done in the course of his employment in order to make his master liable civilly for the servant's torts. Steam-tug Cahill, 9 Ben., 352.

§ 402. Where the master of a canal-boat knew the limits within which the owners of a tug allowed it to tow, but solicited the master of the tug to tow the canal-boat beyond those limits for an extra compensation, the towage outside the limits being agreed to be kept secret from the tug owners, held, that the tug owners were not liable for an injury to the canalboat arising from the negligence of the tug-master. Ibid.

§ 403. Hartwell, the cashier of the sub-treasury at Boston, was an embezzler of $480,000, which he had loaned to M., W. & Co. In anticipation of an examination of the sub-treasury, M., W. & Co. and Hartwell procured a deposit of gold certificates by the State Bank to the amount of $480,000, to remain during the examination. Hartwell, after the examination, re fused to return the certificates to the State Bank. Held, that it could recover them of the United States. United States v. State Bank, 6 Otto, 30.

§ 404. The owner of a horse entered for a race takes all the risks incident to the race; but if a horse is intentionably fouled-if it is purposely run against or interfered with by the rider of another horse - the employer of the rider who so fouls him or interferes with him is liable for damages. McKay v. Irvine,* 10 Fed. R., 725.

§ 405. The owner starting his horse in a race is bound to have a rider who is competent to manage and control the horse for the purposes of the race, and an owner who starts his horse in a race with an incompetent rider may be held responsible for the consequences of his rider's incompetency. Ibid.

§ 406. Risk assumed by servant - Safe machinery, materials, etc.- An engineer of a locomotive assumes the risk of his occupation; but the railway company must supply suitable machinery and keep it in repair, and employ careful co-servants and discharge those that are careless. Ross v. Chicago, M. & St. P. R. Co., * 2 McC., 235.

§ 407. A wire stretched across a public street in a city by third parties, sixteen feet five inches above the track of the railroad running there, is not such an obstruction as against accidents from which the railway company can be presumed to guaranty its employees. Especially is

this true where the road is operated by receivers distant from the point in question, knowing nothing of the obstruction, and neither owning nor using it. Held, also, that the employee injured by it was guilty of contributory negligence in not reporting and complaining of the wire. Dalton v. The Receivers,* 4 Hughes, 180.

$408. The defendant company used a push-car for transporting workmen along the track. The workmen were repairing the track at the top of a very steep grade. The plaintiff was ordered by the foreman to go upon the car and proceed down the grade. He was bound to obey upon peril of dismissal from service. There were no brakes upon the car and the plaintiff was injured. In an action to recover damages the defendant demurred to complainant's declaration. The demurrer was overruled. Miller v. Union Pac. R. Co.,* 12 Fed. R., 600. $409. The plaintiff was a brakeman in the service of the company, engaged in operating a freight train. The car on which he was riding was a caboose, and left the track, causing him such alarm that he sprung from it and received injury by coming in contact with the earth. The plaintiff avers that the car was not properly constructed; that it had but four wheels, and these were attached to the car so firmly that there was no room for the wheels to accommodate themselves to the curves of the road; that whenever they came to a curve the car was likely to leave the track. When the company first began to operate the road many of the caboose cars were constructed in this way, but they had withdrawn nearly all of them and other cars were put in their place. The plaintiff was ignorant of the defect in the car, and he went upon it without suspicion of danger in respect to its adaptability to the service. He brought suit for damages. It was held on demurrer that a company is bound to have safe and suitable machinery so as not to expose employees to unnecessary dangers, such as may be avoided by reasonable care in the construction of cars and other apparatus upon the road, and that the plaintiff had a right of action. Palmer v. Denver & Rio Grande R'y Co.,* 3 McC., 635.

§ 410. A railway company that furnishes its employees with improper coupling apparatus is liable to one who is injured thereby. M'Mahon v. Henning, 3 Fed. R., 355.

§ 411. Where a railway company furnishes defective coupling apparatus to its employees, one of whom is injured, it cannot, in defense to an action by it, set up the contributing negligence of another employee. Ibid.

§ 412. A brakeman injured by reason of the failure of his employers to have the coupling apparatus of the cars properly inspected and repaired can recover of his employers. Field v. Chicago, etc., R. Co.,* 14 Rep., 674.

§ 413. When a person enters into the service of another he assumes all the ordinary risks incident to the employment, and the employer agrees, by implication of law, not to subject the servant he employs to extraordinary or unusual perils or dangers, and that he will furnish the employee with reasonably safe and convenient machinery with which to perform his duties. Gravelle v. Minneapolis, etc., R. Co.,* 10 Fed. R., 711; 3 McC., 352.

§ 414. In constructing and operating a railway the law imposes upon a railway company the obligation to make it substantial and safe. It is its duty to lay its track and road-bed, and to construct its bridges, culverts and embankments, in such manner, and to keep them in such condition, as to render the same safe for the public use as well as for the employees of the road. Goheen v. Texas & P. R. Co.,* 3 Cent. L. J., 382.

§ 415. The duty of a railway company in regard to keeping its road substantial and safe does not require it to provide against dangers which cannot reasonably be foreseen. It is not bound to secure the track against events which cannot be anticipated by reasonable men having the ordinary sagacity required in the business of making railroads, such as an unprecedented flood or other like unusual visitation or occurrence. This rule applies most strongly to all roads when recently constructed, and before there has bsen sufficient time to test the sufficiency and safety of the work done. Ibid.

§ 416. It is the duty of a railway company to use all reasonable care in the proper construction of its road, and in supplying it with the necessary equipments, including properly constructed engines and their several parts, and necessary and proper material for their repair; also to select competent and skilful agents and subordinates to supervise, inspect, repair and regulate the machinery, and to regulate and control the operations of the road. Haugh v. Texas, etc., R. Co.,* 3 Cent. L. J., 447.

§ 417. A servant assumes ordinary risks of using machinery. In order to hold the master liable where his servant is injured by defective machinery it must be shown that the master knew of the defects and neglected to remedy them. Ibid.

§ 418. The liability of an owner of a vessel does not differ from that of any other employer; he must use ordinary care to provide sound and safe materials for his servants, but he does not warrant them to be so, nor insure his servants against the consequence of their defects. The foundation of his liability is his personal negligence. Halverson v. Nisen,* 3 Saw., 563. § 419. The master is responsible to servants employed to operate machinery propelled by steam, where such servants are not in fault for injuries caused by his negligence and lack of

proper care, proportioned to the danger in keeping such machinery in a safe condition. Jones v. Yaeger,* 16 Int. Rev. Rec., 142; 2 Dill., 64.

§ 420. A stevedore contracted with the steamship R. to discharge her cargo of speigel iron. The libelant was in the employ of the stevedore. They used a derrick in discharging her cargo. The libelant was assisting in hoisting tubs of speigel iron when the chain parted and the loaded tub fell back and injured the libelant. Held, that the averment in the answer that he and those working with him were co-servants of the respondent was a mistake, there being no privity of contract between the libelant and respondent; that if the degree of negligence which would be sufficient to make the respondent liable as employer were enough, the testimony does not show such negligence. It must be shown that the defect was known to the employer, or should have been discovered by him. It was shown that the defective chain was examined with ordinary care before being used, and was apparently strong enough for the purpose intended, and that the defect was neither known to nor discovered by the respondent by the exercise of such care. The Rheola,* 9 Fed. R., 781.

§ 421. The plaintiff's husband was employed in the capacity of a fireman in the mill of the defendant. The boiler exploded, causing his death. The statute of Missouri provided that, Whenever the death of a person shall have been caused by the wrongful act, neglect or default of another, he shall be liable to an action for damages." The plaintiff brought action for damages under this statute for the death of her husband. Held, that if the employer knows that his boilers are defective, or if under all circumstances, as a reasonable man, he should have discovered, though he did not, their defective condition, or if he negligently remained ignorant of their defective condition, or if the defective condition thereof was the direct and proximate cause of an explosion which injured servants who are blameless and who did not contribute towards the production of the accident by their own fault or neglect, then the employer is liable to such servants. If the jury find that the explosion was due to the default or negligence of the engineer in not ascertaining that he had sufficient water in the boilers, he at the time acting in the scope of his employment and in the general line of his duty, without any special directions of the defendant, and that it was not owing to the defective character of the machinery or boilers, then the defendant is not liable. The plaintiff's husband would be a fellow-servant in the same common employment, and the master, or common employer, would not be answerable to the fireman for negligence of this character on the part of the engineer, there being neither allegation nor evidence that the master was guilty of negligence in employing or retaining in his service an engineer who was incompetent. Jones v. Yeager,* 2 Dill., 64.

§ 422. A contract between an employer and an employee, whereby the latter agrees to release the former from all damages arising from negligence of the employer or co-servants, is against public policy and is void. Roesner v. Hermann, 8 Fed. R., 782.

§ 423. — who liable as master. The boiler of the steamer Bonnie Lee exploded, causing the death of Jefferson B. Posey, second clerk of the boat. The explosion was caused by a defect in the boiler. Action was brought by his widow to recover pecuniary compensation for his loss, and a judgment was recovered in the district court against the Red River Transportation Company, charterers of the craft. This company claimed that, although they were running the boat in their own interests, the liability for negligence in the management of the boat rested upon Noah Scoville, its real owner, who appointed its officers. Held, that the transportation company were the owners pro hac vice, and responsible for the negligence, and that the fact that Scoville appointed the officers was immaterial. Posey v. Scoville,* 10 Fed. R., 140. § 424. A master is liable to a servant for an injury caused by a defective draw-bar in the coupling apparatus of a car, where the yard master, whose duty it was to see to the remedy of the defect, was notified of it and promised to remedy it, and the servant, relying upon this promise, continued at work and sustained an injury, within such a period of time after the promise as it would be reasonable to allow for the performance of the promise. Pasody v. Milwaukee, etc., R. Co.,* 29 Int. Rev. Rec., 101.

notice of defects, effect of

When required to bind master.

425. A master is not liable to a servant injured by defective machinery unless the master knew it was defective and neglected to repair it, or neglected properly to inspect it. Haugh v. Tex. & Pac. R. Co.,* 3 N. Y. Weekly Dig., 174.

§ 426. If a particular structure is without fault as to plan, mode of construction and character of material, so that it was originally sufficient for all the purposes for which it was designed, and if the railway company has it afterward properly inspected by competent and skilful men, who exercise ordinary diligence to keep it in repair, the company has discharged its duty and is not liable to an employee for an injury received by reason of a defect in said structure, unless it be shown that the company failed to remedy the defect after having received actual notice thereof. Goheen v. Texas, etc., R. Co.,* 3 Cent. L. J., 382.

427. In an action for damages against his employer by a workman for injuries sustained by reason of a defective and insecure platform which had been provided for him, the complaint omitted any express allegation of a knowledge of such defect on the part of defendant. A demurrer was filed to such complaint. Held, that knowledge of defect of machinery, etc.. on the part of defendant may be shown under a general allegation of negligence. Knaresborough v. Belcher S. M. Co.,* 3 Saw., 446.

$428. The plaintiff sued for injuries alleged to have been received by him by reason of the neglect of the defendant in using a defective car. He admitted that he knew of the defect alleged to exist, but averred that before the accident happened the car inspector, whose business it was to report the defect to the master-mechanic, was duly notified of the same, as was also the master-mechanic, and they both failed and neglected to have said defective car retired or repaired; and also that the master-mechanic was advised of the habitual negligence and general bad habits of the car inspector. Defendant demurred to plaintiff's declaration. Held, on demurrer, (1) that there should be an averment that the car was defective when placed upon the road, or, if it subsequently became defective, that notice of the defect be brought home to the company. (2) That a railroad company is not responsible to its employee for the negligence of his fellow-servant. (3) That notice of the habitual negligence and general bad habits of a car inspector, brought home to the master-mechanic of a railroad company liable for an injury to another servant of the company, will not make the company liable for an injury to another servant of the company, resulting from the negligence of the car inspector, unless it is shown that power was conferred by the company upon the master-mechanic to employ and discharge the car inspector. Kidwell v. Houston & G. N. R'y Co.,* 3 Woods, 313. § 429. Master's duty to inform servant of dangers - New machinery. It is negligence in the master not to inform his servant of facts within his knowledge affecting the safety of the servant in the service to be performed, when the latter is ignorant of such facts. Accordingly, where a servant was injured by pouring or spilling hot slag in water, held, negligence on the part of the master not to have informed the former of the explosive power of hot slag in water; and that the master was liable for injuries resulting to the servant by reason of his ignorânce of such explosive power. M'Gowan v. La Plata Mining & Smelting Co., 9 Fed. R., 861; 3 McC., 393; 13 Rep., 294; 28 Int. Rev. Rec., 73.

-

§ 430. If an employer introduces, without notice to his employee, some new and unusual machinery involving an unexpected or unanticipated danger, through the introduction of which the employee, while using the care and diligence incident to his employment, meets with an accident, he is liable in damages to the employee thus injured. O'Neil v. St. Louis, Iron Mountain, etc., R'y Co., 9 Fed. R., 337.

§ 431. Liability of master to servant for injury caused by negligence of fellow-servant.No recovery can be had for an injury to a servant which is the result of the negligence of a fellow-servant. Gravelle v. Minneapolis, etc., R. Co.,* 3 McC., 52; Maryland v. Balt. & Pot. R. Co..* 1 Hughes, 337; Kelley v. Belcher S. M. Co.,* 3 Saw., 500.

§ 432. An instruction, in substance, that if a co-servant was negligent and the company defen ant was itself negligent in employing him, then the latter was liable for the injury thereby inflicted and could not defend on the ground that the risk of injury by a co-servant was assumed by the plaintiff, held correct. Grand Trunk R. Co. v. Cummings,* 16 Otto, 700. § 433. Where an engine broke through the closed doors of a railway shop and injured plaintiff, held, that the jury were to determine (1) the fact and nature of the injury; (2) whether the engin er and plaintiff were co-servants; if so, then defendant was not liable, the risk of injury by a co-servant having been assumed by plaintiff as well as the risk of injury by defective machinery. Totten v. Pennsylvania R. Co.,* 11 Fed. R., 564.

§ 434. Plaintiff was employed to walk in front of trains going through a city and carry a red flag to warn people that the train was coming. One day a train ran him down. Held, that his injury was due to the negligence of a co-servant, the engineer in charge of the locomotive, and that he could not recover. Per Olin, J.: that he was guilty of gross contributory negli gence in going upon the track at all in front of the engine. Mills v. Railroad Company,* 2 MacArth., 321.

§ 435. A brakeman who is injured while coupling cars, through the negligence of the engineer in backing the engine carelessly and without warning, cannot recover, the injury being done by a co-servant. Summerhays v. Kan. Pac. R. Co.* 2 Colo. T'y, 484.

§ 436. A railway company is not liable for injuries suffered by one employee solely through the carelessness or negligence of another employee of the same master, engaged in the same general service or business, or under the same general control. Haugh v. Texas, etc., R. Co.,* 8 Cent. L. J., 447.

§ 437. Each employee engaged with others in the service of a common master takes upon himself the liability to injury resulting from the negligence of his co-employees. Ibid.

§ 438. To justify a recovery against a master by one servant for an injury caused by the