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rally liable for injuries resulting from defects in machinery of which he might have known by the exercise of ordinary care,1 although he cannot be considered guilty of a breach of duty when he provides such machinery as would be fairly and reasonably safe, even though it may not be the best and latest machinery that could be obtained, if it could be used without danger to the employee.2

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§ 390. Should furnish suitable employees. When one undertakes and enters into a dangerous employment, he not only assumes the peril immediately incident to the particular business, but he also takes upon himself the risks arising from the negligence of his fellow-employees,3 and where one has voluntarily entered into a dangerous business he should not afterwards complain because of the exceptional risks assumed. But while au employee assumes the risks incident to his duties in the service, upon which he has entered, he still has the right to expect that the employer will protect him from risk as far as he can, by selecting for his associates people of ordi

defect was discovered and remedied by the master after injury to the servant, constitute evidence of such negligence. Ante, idem

1 Washington &c. Co. v. McDade, 135 U. S. 554; 18 Wash. Law Rep. 526; Hoffam v. Dickinson, 31 W. Va. 142; 6 S. E. Rep. 53; Kaspari v. Marsh, 74 Wis. 562.

2 Lehigh &c. W. Coal Co. v. Hayes, 128 Pa. St. 294; 5 L. R. A. 441; 18 Atl. Rep. 387; Galveston &c. Co. v. Fassett, 73 Tex. 262; Conway v. Hannibal & St. Joe Rv. Co., 24 Mo. App. 235.

3 McLean v. Blue Point G. M. Co., 51 Cal. 255. As to what constitutes fellow-servants, see Daniels v. Mo. P. Ry. Co., 23 Pac. Rep. 762, and note; mere co-operation and community of labor, without a common master, will not constitute. U. P. R. Co. v. Billeter, 40 Am. &

Eng. Ry. Cas. 431; 44 N. W. Rep. 483; contra, Corbett v. St. L., I. M. & S. Ry., 26 M. A. 621.

4 Deering on Negligence, § 201 and cases cited; Woodward Iron Co. v. Jones (Sup. Ct. Ala.), 23 C. L. J. 296.

nary skill and prudence in that particular vocation." The liability of the employer for an injury resulting from a failure to employ suitable employees is just as great as an injury resulting from a failure to provide suitable machinery for his employees, and as in the case of a failure to provide the necessary machinery for the business, the owner's responsibility may either arise from a failure to employ persons who have the required skill or prudence to attend to the business intrusted to them, or in allowing persons to continue in his employ when he has discovered they are unfit or incompetent to properly discharge the duties of their employment;3 or even if he has not had actual knowledge of their incompetency, if he could have discovered the same by the exercise of reasonable diligence, the continuance of such persons in his employ is considered just as much a breach of duty by the owner as though he had employed an incompetent servant from the first. But negligence must first be brought home to the

1 The master is responsible to a servant for the negligence of a fellow-servant, whenever his own negligence contributes to the injury, or where the other servant occupies such a relation to the injured party, or to the employment in which the injury was received, as to make the negligence of such servant the negligence of the master. Myers v. Hudson Iron Co., 150 Mass. 125; Quebec &c. Co. v. Merchant, 133 U. S. 375. Nor would the contributory negligence of a fellow-servant prevent a recovery by the injured party. Hume v. Michigan C. R. Co., 78 Mich. 513; 41 Am. & Eng. Ry. Cas. 452; 44 N. W. R. 502; Myers v. Hudson Iron Co., supra. But see Whittaker v. Delaware &c. Canal Co., 49 Hun, 400.

2 Myers v. Hudson Iron Co., 150 Mass. 125; 22 N. E. Rep. 631; Moran v. Brown, 29 Mo. App. 487; Carr v. North River Can. Co., 48 Hun, 266; 17 N. Y. S. R. 945; Hanley v. Grand Trunk Ry. Co., 62 N. H. 274; Worheid v. Mo. &c. Co, 32 Mo. App. 367.

3 Consolidated Coal Co. v. Wombacker, 24 N. E. Rep. 627; Wood on Mister & Serv. 86, and cases cited; Hough v. Railroad, 10 U. S. 213; Granville v. Id., 10 Fed. Rep. 711

4 Anglo-American Cɔ. v. Lewondowski, 26 Ill. App. 487; Quebec Co. v. Merchant, 133 U. S. 375; 7 R R. & Corp. L. J. 432; Norfolk &c. Co. v.

master in order to hold him responsible for an injury resulting from the negligence of a fellow-servant of the injured party, and unless it be shown that he was guilty of negligence in selecting his servants, or in retaining those who were unfit to remain in his employment, he cannot, generally, be held responsible for such an injury.1

§ 391. Same - Negligence of fellow-servants. It has already been seen that in entering upon an employment the employee assumes the risk of injuries from his fellowemployee's negligence as well as the dangers resulting from his surroundings alone, and for an injury from a fellow-employee's negligence, if not himself guilty of negligence, an employer is not responsible. This rule, however, is subject to certain limitations, and in law or good conscience conscience an employer cannot relieve himself from every injury and the resulting liability from the act of a co-employee, and if the employee is injured by the negligence of a superior, or an employee serving in a distinct department of the employ

Hoover, 78 Neb. 263; 29 Atl. Rep. 994; Myers v. Hudson Iron Co., supra.

1 McGovern v. Columbia Mfg. Co., 80 Ga. 227; Moran v. Brown, 27 Mo. App. 487. And where the injury results solely from the negligence of a fellow-servant, the master cannot be held responsible for such injury (Riley v. O'Brien, 53 Hun, 147; 6 N. Y. Supp. 129), unless the same resulted from the exercise of authority which the master had conferred upon such fellow-servant over the injured party; or unless the negligence of the fellow-servant consisted in a breach of duty, which the law imposed upon the master himself, in which case he could be held responsible to the injured party the same as though the injury resulted from his own negligence. Consolidated Coal Co. v. Wombarber, 24 N. E. Rep. 627; Dutzi v. Geisel, 23 Mo. App. 676

2 Ante. See section preceding.

3 Strahlendorf v. Rosenthal, 10 Mor. Min. Rep. 676; Keilly v. Belcher Co., 10 Mor Min. Rep. 3.

er's service, the latter is liable for the injury.1 But in some of the States there is no distinction recognized between injuries from co-employees, whether in the same or different grades of the same employment, or that the employee whose act occasioned the injury may have been the injured man's superior; the master is, in all such cases, relieved of liability,' but only where this rule obtains it is held necessary that the employees should both have been employed to effect the same common object. If their employment was for distinct and entirely different purposes then the rule would not apply.1

§ 392. Same Who are fellow-servants in a mine. As a general rule, all those engaged in the common employment of removing ore from a mine, whether engaged in cutting down or wheeling out the ore, are fellowservants, for the acts of whom the master is not responsible to those engaged in the same line of employment.5 In order to constitute them fellow-servants, within this rule, it is not necessary that the injured employee and the one causing the injury should both be engaged in the same particular work; but if they are engaged by a common employer in a common work, with the same gen

1 Kielly v. Belcher Co., supra; Ordesco Co. v. Gibson, 10 Mor. Min. Rep. 669.

2 Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; Delaware Co. v. Carroll, 10 Mor. Min. Rep. 47. This is the construction placed on the California Code. McLean v. Blue Point Gravel Mining Co., 51 Cal. 255; 10 Mor. Min. Rep. 22.

3 Lehigh Valley Co. v. Jones, supra. But see Chicago &c. Co. v. Ross, 112 U. S. 377; Brothers v. Carter, 52 Mo. 373.

4 Authorities, supra.

5 Wood v. New Bedford Coal Co., 121 Mass, 252; 2 Thomp. on Neg. 1034; Kielly v. Belcher Sil. Min. Co., 3 Sawyer (U. S.) 500; Pittsburg &c. Co. v. Sentmeyer, 92 Pa. St. 276.

eral object in view, then they are fellow-servants.1 But in most of the States to constitute co-employees fellow-servants they must be both serving in the same department of the master's business and one not inferior in authority to the other, and ordinarily those engaged in distinct departments of the master's general business or in inferior and superior positions, are not regarded as fellow-servants.3 This general rule, however, is subject to the exceptions made by different decisions in the different States. For instance, in Ohio, a foreman in charge of hands, has been held not to be a fellow-servant, while in Pennsylvania, an overseer has been held a fellow-servant with a workman. So, in the latter State, a" driver boss" and a "mining boss" have been held to be fellow-servants; and a "mining boss" and a workman; but in some others still a different rule obtains, and

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1 Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; Delaware & Hudson Canal Co. v. Carroll, 89 Pa. St. 374; McLean v. Blue Paint Co., 10 Mor. Min. Rep. 22. "The man who lets down the miners into the mine is a fellow-laborer with the miners, within the rule as to injuries from fellow-laborer's negligence." Bartonshill C. Co. v. Reid, 3 Macq 266; S. P. Bartonshill C. Co. v. McGuire, 3 Id. 300 (Scotch cases); M. M. D., p 223. In Alaska Treadwell Gold Min. Co. v. Whelan (168 U. S. 86; 42 L. Ed. 390) it is held that a ground foreman is a fellow-servant, if he works with the employees, regardless of his power to employ and discharge the men. See also Glover v. K. C., B. & N. Co., 153 Mo. 327. And for case abolishing the "department doctrine," in Missouri, see Grattis v. K. C., P. & G. Co., 153 Mo. 380; 55 S. W. Rep. 108.

2 Kielly v. Belcher Co., 10 Mor. Min. Rep. 11; Strahlendorf v. Rosenthal, idem, 676.

Berea Stone Co. v. Kraft, 10 M. M. R. 16. But see, contra, McLean v. Blue Point Co., 10 M. M. R. 22 and cases cited. Alaska Gold Min. Co. v. Whelan, 168 U. S. 86; Grattis v. R. R., 153 Mo. 380.

4 Berea Stone Co. v. Kraft, supra. And the same thing has been held in Michigan. Ryan v. Bagsley, 50 Mich. 179. See also Little Miami &c. Co. v. Stevens, 20 Ohio, 415.

Lehigh Valley Co. v. Jones, 10 M. M. R. 30.

• Ante, idem. But see Brothers v. Carter, 52 Mo. 372.

Delaware Co. v. Carroll, 10 Mor. Min. Rep. 47.

8 Ardesco Co. v. Gilson, 10 Mor. Min. Rep. 669 Kielly v. Belcher Co.,

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