introduces new and unusual machinery, involving unexpected danger, without notice to his employee. Employers are not, as a rule, required to furnish the best and latest improved machinery, but only such as is reasonably safe and suitable. Railroad companies, however, are ordinarily bound to adopt new inventions as soon as they have been proved by satisfactory tests to be safer than the appliances in use. While it is the duty of an employer to exercise reasonable care in keeping buildings, machinery, tools, etc., in suitable and safe condition for use, and to this end he should frequently inspect the machinery, etc., used by his employees, the system of inspection need not be carried to such an extent as will embarrass the operation of his business. A master who sets a servant at work in a place of danger without giving him such warning and instruction as the youthfulness, inexperience, or lack of capacity on the part of the servant reasonably requires, is guilty of negligence, and liable to the servant for an injury arising therefrom. The fact, however, that a master sets a minor servant to work at a more dangerous occupation than that in which he was originally employed does not, in itself, render the master liable for an injury resulting therefrom, unless under all the circumstances the setting him at such work was a negligent act; but the master will be held more strictly accountable in such a case than in the case of an adult. Proprietors of manufacturing establishments are charged with the duty of exercising ordinary care in providing their employees with suitable places in which they can work in reasonable safety, and without exposure to dangers not within the usual scope of their employment. It is the duty of employers to make and promulgate such rules and regulations for the government of their employees as will, if observed, give them reasonable protection; and employees are bound to obey all the lawful and reasonable commands of their employers, though such commands may seem harsh and severe. It is also the duty of employers to have a sufficient number of trustworthy, competent employees to properly and safely perform the labor required in the business in which they are engaged. When certain duties are imposed upon an employer by legislative enactment or municipal ordinance, designed for the protection of his employees, it is negligence on his part to fail to comply with such requirements, and he is liable to his employees for injuries arising from such negligence, unless it can be clearly shown that they assumed the risk. An employer can not avoid his liability to an employee for injuries sustained by the latter through his negligence by means of a contract with such employee which provides that in consideration of the employment he shall be exempt from such liability. Such a contract is against public policy and void. The supreme court of the State of Georgia has, however, sustained the validity of contracts of this character. CONTRIBUTORY NEGLIGENCE BY EMPLOYEES.-It is a general rule that when an employee suffers an injury through the negligence of his employer he is not entitled to recover damages for such injury if his own negligence contributed thereto. Under this rule, where master and servant have equal knowledge of the danger of the service and the means of avoiding it, and the servant while engaged in the performance of his duties is injured by reason of his own inattention and negligence, the master is not liable; and where the servant is told to do a particular thing and is not directed as to the time or manner in which the work is to be done, it being left to his discretion, so that he is given some control over the means, time, and manner of doing it, he is guilty of contributory negligence if he does not use the safest means, time, and method of accomplishing the work and is injured while so engaged, and can not recover damages from the master; nor can he recover such damages if injured by the use of a defective appliance under his own exclusive care; nor where he had knowledge of a defect in an appliance used by him, through which he is injured, and failed to notify the master thereof, if no blame was imputable to the latter in failing to discover such defect, or in failing to furnish a safe and suitable appliance. But an employee's right to recover damages for an injury is not affected by his having contributed thereto unless he was at fault in so contributing, and he may recover, notwithstanding his contributory negligence, if the master, after becoming aware of the danger, failed to exercise ordinary care to prevent the injury or willfully inflicted the damage. When an employee in the course of his employment finds himself exposed to imminent peril due to the master's negligence, and in the terror of the moment adopts a course exposing him to greater peril and is injured, such action on his part does not constitute contributory negligence, and will not relieve the master from liability. An employee is not guilty of contributory negligence if, when injured, he was exercising ordinary care to avoid injury and discharging his duties in a careful and prudent manner, and the injury was sustained by reason of negligent failure on the part of the employer to exercise ordinary care for the employee's safety, as failure to warn the employee of extraneous risks and unusual dangers known to the employer, but unknown to the employee, or to instruct an immature or inexperienced servant and warn him of the dangers attending his work not obvious to one of his capacity or experience; to provide suitable machinery, tools, and appliances for carrying on the work at which the servant is employed; to inspect and repair machinery, tools, and appliances; to provide a safe place for the servant to work, the ordinary risks of the business excepted; to guard against a danger to a servant of which the master has been notified, or which he has promised to obviate, or which he has assured the servant did not exist; to make and promulgate proper rules and regulations for the conduct of the employment in which the servant is engaged; to employ and retain a sufficient number of competent and trustworthy servants to properly and safely carry on the business. The employee does not assume the risk of injury by reason of the negligent failure of his employer in fulfilling any of the duties incumbent upon him, and, as before stated, is not guilty of contributory negligence when injured by such failure, if he himself was without fault in the discharge of his duty. Contributory negligence is purely a matter of defense in actions by employees for damages resulting from injuries sustained during the course of their employment, and the burden of proving it is upon the master who seeks thereby to avoid liability for such damages. ASSUMPTION OF RISKS BY EMPLOYEES.-Where an employment is accompanied with risks of which those who enter it have, or are presumed to have, notice, they can not, if they are injured by exposure to such risks, recover compensation for the injuries from their employer; by contracting to perform hazardous duties the employee assumes such risks as are incident to their discharge, and he assumes not only the risks existing at the beginning of his employment, but also such as arise during its course, if he had or was bound to have knowledge thereof. He does not, however, assume the risk of dangers arising from unsafe or defective methods, machinery, or other instrumentalities, unless he has, or may be presumed to have, knowledge or notice thereof, and the burden of proving that an injured employee had such knowledge or notice of the defect or obstruction causing the injury is upon the employer. The employee assumes all risk of latent defects in appliances or machinery, unless the master was negligent in not discovering the same; but the experience, or lack of experience, of the employee is to be considered in determining whether or not he is chargeable with knowledge of such defects as are not obvious and of the danger arising therefrom. Another risk assumed by employees is that of the master's method of conducting his business. If the employee enters upon the service with knowledge of the risk attending the method, he can not hold the master responsible for injuries arising from the use of such method though a safer one might have been adopted; but in order to relieve the master from liability the method must amount to a custom or mode of carrying on the business, and not consist merely of an instance or any number of instances of culpable negligence on the part of the master. NEGLIGENCE OF FELLOW-SERVANTS.-The general rule at common law is that he who engages in the employment of another for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services. The perils arising from the carelessness and negligence of those who are in the same employment are no exception to this rule, and where a master uses due diligence in the selection of competent, trusty servants, and furnishes them with suitable means to perform the services in which he employs them, he is not answerable to one of them for an injury received in consequence of the carelessness or negligence of another while both are engaged in the same service. Various attempts have been made by judges and text writers to lay down some rule or formula by which to determine what servants of a common master may be said to be fellow-servants assuming the risk of each other's negligence. The following are well-known definitions: Persons are fellow-servants where they are engaged in the same common pursuit under the same general control. All who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow-servants who take the risk of each other's negligence. The true test of fellow-service is community in that which is the test of service; which is subjection to control and direction by the same common master in the same common pursuit. If servants are employed and paid by the same master, and their duties are such as to bring them into such a relation that the negligence of the one in doing his work may injure the other in the performance of his, then they are engaged in the same common pursuit, and being subject to the same control they are fellow-servants. All servants in the employ of the same master, subject to the same general control, paid from a common fund, and engaged in promoting or accomplishing the same common object, are to be held fellow-servants in a common employment. It is said that these definitions are faulty and of little practical value by reason of their being stated so broadly and in such general and comprehensive terms; nevertheless they give a correct idea as to who have been determined by many courts to be fellow-servants within the rule exempting the master from liability for the negligence of one of them resulting injuriously to another. The principal limitation contended for on the general rule in regard to fellowservants is that there is such a servant as vice-principal, who takes the place of the master and is not a fellow-servant with those beneath him; and there is a variation of this idea to the effect that every superior servant is a vice-principal as to those beneath him. The doctrine of vice-principal is, however, repudiated by the courts of many of the States. The master, as such, is required to perform certain duties which have been hereinbefore specified, and the person who discharges any of these duties, no matter what his rank or grade, no matter by what name he may be designated, can not be a servant within the meaning of the general rule on fellow-servants. The liability of the master for the nonperformance of such duties as the law implies from the contract of service does not rest upon the ground of guarantee of their performance, but upon the fact of the presence or absence of negligence of the master in their performance. Whether one is acting as the representative of the master or merely as the fellow-servant with others employed by the same master does not depend upon his rank or title, but upon the character of the duties he is performing at the time another servant is injured through his negligence; if at such time the offending servant was in the performance of a duty which the master owed his servants, he was not a fellow-servant with the one injured, but a vice-principal, for the rule is fundamental that a master can not rid himself of a duty he owes to his servants by delegating his authority to another and thus escape responsibility for negligence in the performance of such duty. If, however, at the time of the injury the negligent servant was not engaged in the performance of duty due from the master to his servants, but was discharging a duty which was due from the servant to the master, he was a fellow-servant to the one injured, engaged in the same common business, and the master would not be liable for the injuries sustained by reason of his negligence. It is held by the courts of some of the States that, as industrial enterprises have grown, and, because of the division of labor and the magnitude of operations, have been divided into distinct and separate departments, a laborer in one department is not a fellow-servant with a laborer in another and separate department of the same establishment. INCOMPETENCY OF FELLOW-SERVANTS.-If an employer knowingly employs or retains an incompetent servant he is liable for an injury to a fellow-servant sustained through the incompetency of the servant so employed or retained, provided the injured servant did not know and had not the means of knowing the incompetency of his fellow-servant. A master is not, however, liable for injuries to one servant by the negligence of another on the ground of unskillfulness of the latter unless the injuries were caused by such unskillfulness. A master does not warrant the competency of his servants, but must use all ordinary care and diligence in their selection and retention. If he has not been negligent in selecting a servant, and subsequently obtains knowledge of the servant's incompetence and still retains him, he is liable to another servant for any injury resulting from said incompetence. If the employer had no actual notice of the servant's incompetence, if it was notorious and of such a character that with proper care he would have known of it, he will still be liable. If a person, knowing the hazards of his employment as it is conducted, voluntarily continues therein without any promise by the master to do any act to render the same less hazardous, the master will not be liable for an injury he may sustain therein, unless it is caused by the willful act of the master. No servant is entitled to damages resulting from the incompetence of a fellow-servant when he knew of such incompetence and did not inform his employer of the same. When it is alleged that the master has been guilty of selecting or retaining an incompetent servant, the burden of proof of said allegation is on the plaintiff. Neither incompetency nor unskillfulness will be presumed; they must be proved. A master who has employed skillful and competent general agents or superintendents is liable for injuries received by inferior servants through the negligence of those employed by such general agents or superintendents without due care or inquiry, or retained by them after knowledge of their incompetence. While the servant assumes the ordinary risks, and, as a general rule, such extraordinary risks of his employment as he knowingly and voluntarily encounters, he is not required to exercise the same degree of care as the master in investigating the risks to which he may be exposed; he has the right to assume that the appliances and machinery furnished him by the master are safe and suitable for the employment in which he is engaged; and to assume, when engaged in an occupation attended with danger and requiring engrossing duties, that the master will not, without proper warning, subject him to other dangers unknown to him, and from which his occupation necessarily distracts his attention; and he has the right to rely upon the taking by the master of all usual and proper precautions against accident, and his faithful fulfillment of all the duties devolving upon him. If an employee is ordered by his master into a situation of danger and obeys, he does not assume the risk unless the danger was so obvious that no prudent man would have obeyed the order; and the master will be liable for any injury resulting to him by reason of such dangerous employment. If, however, he leaves his own place of work for one more dangerous, in violation of the master's direction, he can not recover for an injury sustained after such change. If the servant, upon being ordered to perform duties more dangerous than those embraced in his original employment, undertakes the same with knowledge of their dangerous character, unwillingly and from fear of losing his employment, he can not, if injured, recover damages from the master; nor can he recover such damages where the injury results from an unexpected cause during the course of his employment; nor where the injury is sustained in the performance of a service not within the scope of his duty, if his opportunity for observing the danger is equal to that of his employer; and where an employee voluntarily assumes a risk he thereby waives the provisions of a statute made for his protection. FELLOW-SERVANTS UNDER THE COMMON LAW. WHO ARE FELLOW-SERVANTS. Taber v. Carlisle Manufacturing Co., 126 APPRENTICE AND FOREMAN OF LATHE. 248. BAGGAGEMAN AND SECTIONMAN. Moseley v. Chamberlain, 18 Wis., 700. BAGGAGEMAN AND SWITCHMAN. Roberts v. Chicago, etc., R. R. Co., 33 Minn., 218. BAGGAGEMASTER. (See Baggageman.) BLACKSMITH AND BLACKSMITH'S HELPER. Melville v. M. R. F. S., etc., R. R. Co., 48 Federal Reporter, 820, and McBride v. Indiana Frog and Switch Co., 5 Ind. App., 482. BLACKSMITH AND LABORER IN LOCOMOTIVE WORKS. Rogers' Locomotive Works v. Hand, 50 N. J., 464. BLACKSMITH AND LOCOMOTIVE ENGINEER. 111 Ill., 202. BLACKSMITH AND LOCOMOTIVE FIREMAN. 111 Ill., 202. Abend v. Terre Haute, etc., R. R. Co., Abend v. Terre Haute, etc., R. R. Co., BLACKSMITH AND MINER. Snyder v. Viola Mining and Smelting Co., 2 Idaho, 771. BLACKSMITH'S HELPER AND BLACKSMITH. (See Blacksmith.) BLASTER AND MINER. Keilley v. Belcher, 3 Sawyer (U. S. circuit court), 500. BLASTER AND STONECUTTER. Hare . McIntyre, 82 Me., 240. BLASTER AND SUPERINTENDENT OF QUARRY. O'Neil v. O'Leary and Earley v. O'Leary (Mass.), 41 Northeastern Reporter, 662. BLASTER AND TEAMSTER. Bogard v. Louisville, etc., R. R. Co., 100 Ind., 491. BOAT HAND AND CAPTAIN OF STEAMBOAT. Loughlin v. "State of New York." BOATSWAIN AND STEVEDORE LOADING VESSEL. Smith v. The Furnessia, 30 Federal Reporter, 878. BOILER MAKER AND BOILER MAKER'S HELPER. Ling v. St. Paul, etc., R. R. Co., 50 Minn., 160. BOILER MAKER AND MECHANIC IN RAILROAD REPAIR SHOP. Murphy v. Boston, etc., R. R. Co., 88 N. Y., 146. BOILER MAKER'S HELPER AND BOILER MAKER. (See Boiler maker.) BOILER MAKER'S HELPER AND FOREMAN OF BOILER SHOP. Ling v. St. Paul, etc., R. R. Co., 50 Minn., 160. BOILER MAKER'S HELPER AND LABORER REMOVING LOCOMOTIVE SMOKESTACK. Lavallee v. P. M., etc., R. R. Co., 40 Minn., 249. BOX NAILER AND LABORER IN PLANING ROOM. Anthony v. Leeret, 105 N. Y., 591. BRAKEMAN AND BRAKEMAN. Youll v. Sioux City, etc., R. R. Co. (Iowa), 21 Am. and Eng. R. R. Cases, 589. Nashville, etc., R. R. Co. v. Foster, 10 Lea (Tenn.), 351. Hayes v. Western R. R. Corporation, 3 Cush. (Mass.), 270. Houston, etc., R. R. Co. v. Gilmore, 62 Tex., 361. Caron v. Boston & Albany R. R. Co. (Mass.), 42 Northeastern Reporter, 112. Chicago, B. & Q. R. R. Co. (Nebr.), 63 Northwestern Reporter, 872. BRAKEMAN AND BRAKE REPAIRER. Nashville, etc., R. R. Co. v. Foster, 10 Lea (Tenn.), 351. BRAKEMAN AND BRIDGE NUMBERER. A. & N. W. R. R. Co. v. Beatty (Tex.), 24 Smoot v. Mobile, etc., R. R. Co., 67 Ala., 13. St. Louis, etc., R. R. Co. v. Gaines, 46 Ark., 555. Chicago, etc., R. R. Co. v. Bragonia, 11 Ill. App., 516.__ Wonder v. Baltimore, etc., R. R. Co., 32 Md., 411. Mackin v. Boston, etc., R. R. Co., 135 Mass., 201. Bowers v. C. R. R. R. Co. (Mass.), 38 Northeastern Reporter, 508. Smith v. Flint and Pere Marquette R. R. Co., 46 Mich., 258. Dewey v. D. G., etc., R. R. Co., 329. Smith v. Potter (Mich.), 2 Am. and Eng. R. R. Cases, 140. Besel v. N. Y., etc., R. R. Co., 171. Byrnes v. N. Y., L. E., etc., R. R. Co., 113 N. Y., 251. Patten v. N. Y. C., etc., R. R. Co., 136 N. Y., 77. Columbus, etc., R. R. Co. v. Webb, 12 Ohio St., 475. Little Miami, etc., R. R. Co., v. Fitzpatrick, 42 Ohio St., 318. P., etc., R. R. v. Hughes, 119 Pa. St., 301. Nashville, etc., R. R. Co. v. Foster, 10 Lea (Tenn.), 351. I. & G. N. R. R. Co. v. Kernan, 78 Tex., 294. T. H., etc., R. R. Co. v Manslerger, 65 Federal Reporter, 196. BRAKEMAN AND CAR LOADER. Sweeney v. Page, 64 Hun (N. Y.), 172. BRAKEMAN AND CAR REPAIRER. Besel v. N. Y., etc., R. R. Co., 70 N. Y., 171. Campbell v. Pa. R. R. Co. (Pa.), 24 Am. and Eng. R. R. Cases, 427. BRAKEMAN AND CONDUCTOR. Brown v. Central Pacific R. R. Co., 72 Cal., 523. • Congrave v. Southern Pacific R. R. Co., 88 Cal., 360. Thayer v. St. Louis, etc., R. R. Co., 22 Ind., 26. Dow v. Kansas Pacific R. R. Co., 8 Kans., 642. Atchison, etc., R. R. Co. v. Moore (Kans.), 11 Am. and Eng. R. R. Cases, 243. Hayes v. Western, etc., R. R. Co., 3 Cush. (Mass.), 270. Smith v. Flint and Pere Marquette R. R. Co., 46 Mich., 258. La Pierre v. C. & G. T. R. R. Co. (Mich.), 58 Northwestern Reporter, 60. McMasters v. I. C. R. R. Co., 65 Miss., 264. Connor v. Chicago, etc., R. R. Co., 59 Mo., 285. Sherman v. Rochester, etc., R. R. Co., 17 N. Y., 153. Hagins v. C. F., etc., R. R. Co., 106 N. C., 537. Pittsburg, etc., R. R. Co. v. Devinney, 17 Ohio St., 197. Frazier v. Pa. R. R. Co., 38 Pa., 104. Hoover v. Burch Creek R. R. Co., 154 Pa. St., 362. Robinson v. Houston, etc., R. R. Co., 46 Tex., 540. Pilkinton v. Gulf, etc., R. R. Co., 70 Tex., 226. Campbell v. Cook (Tex.), 26 Southwestern Reporter, 486. Pease v. Chicago, etc., R. R. Co., 61 Wis., 163. Au v. N. Y., etc.; R. R. Co., 29 Federal Reporter, 72. Becker v. B. & O. R. R. Co., 57 Federal Reporter, 188. Central Pacific R. R. Co. v. Johnson, 61 Federal Reporter, 738. Ñ. P. R. R. Co. v. Hogan, 63 Federal Reporter, 102. Martin v. C. & A. R. R. Co., 65 Federal Reporter, 384. B. & O. R. R. Co. v. Reynold's Administrator, 6 U. S. App., 75. Wooden v. Western N. Y. & P. R. R. Co. (N. Y.), 42 Northwestern Reporter, 199. BRAKEMAN AND ENGINEER, LOCOMOTIVE. Mobile, etc., R. R. Co. v. Smith, 59 Ala., 245. Summerhayes v. Kansas, etc., R. R. Co., 2 Col., 484. O. & M. R. R.. Co. v. Dunn (Ind.), 36 Northeastern Reporter, 702. Louisville, etc., R. R. Co. v. Robinson, 4 Bush (Ky.), 507. Wallis v. Morgan's La. & Tex. R. R. Co., 38 La. Ann., 156. Abell v. Western Maryland R. R. Co. (Md.), 21 Am. and Eng. R. R. Cases, 503. Rodman v. Michigan Central R. R. Co., 55 Mich., 57. McLaren v. Williston, 48 Minn., 299. Louisiana, New Orleans, etc., R. R. Co. v. Petty, 67 Miss., 255. Connor v. Chicago, etc., R. R. Co., 59 Mo., 285. Sherman v. Rochester, etc., R. R. Co., 17 N. Y., 153. Wright v. N. Y., etc., R. R. Co., 25 N. Y., 562. Mann v. Delaware and Hudson Canal Co., 91 N. Y., 495. Moran v. N. Y., etc., R. R. Co., 67 Barbour (N. Y.). 96. Pittsburg, etc., R. R. Co. v. Devinney, 17 Ohio St., 197. Pittsburg, etc., R. R. Co. v. Lewis, 33 Ohio St., 196. Pittsburg, etc., R. R. Co. v. Ranney, 37 Ohio St., |