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service in which they engage, yet this does not mean that they may not repose confidence in the prudence and caution of the employer, and rest on the presumption that he has also discharged his duty by supplying machinery free from latent defects, which expose the employee to extraordinary and hidden perils.

Vlaster Liable Only for Ilant of Reasonable Care. But a master is not liable to his employee injured through a latent defect in a machine or appliance when the character of the defect is such that its existence is undiscoverable upon the exercise of reasonable care by the master.3





1 See Jenney Electric Light and "under the law of master and servant. Power Co. z'. Murphy, 115 Ind. 566. Under that law the burden was upon

2. Louisville etc. R. Co. v. Buck, 116 the plaintiff to show negligence on the Ind. 566, s. c., 9 Am. St. Rep. 583, 889; part of the defendant in supplying him citing Indiana Car Co. v. Parker, 100 with a defective hammer. Before he Ind. 181; Hough v. Texas etc. R. Co.,

.. he must show 100 V. S. 213; and further saying: that the hammer was defective, and "While the employer may expect that that the company knew it, or could the employee will be vigilant to ob- have ascertained it by the exercise of serve and that he will be on the alert ordinary and diligence.

The to avoid all known and obvious perils, mere fact that the hammer was defecteven though they may arise from de- ive, and that the injury resulted therefective tools and machinery (Atlas En- from is not sufficient to authorize the gine Works v. Randall, 100 Ind. 293; jury to infer negligence on the part of 50 Am. Rep. 798), yet the latter is not the company in the purchase or selecbound to search for defects or inspect tion of those hammers. Wood, in his the appliances furnished him to Law of Master and Servant, $ 369, says: whether or not there are latent imper- ‘From the mere fact that an injury refections in or about them which render sults to a servant from a latent defect their use more hazardous. These are in machinery or appliances of the busiduties of the master, and unless the de- ness, no presumption of negligence on fects are such as to be obvious to any the master's part is raised. There must one giving attention to the duties of the be evidence of negligence connecting occasion, the employee has a right to him with the injury. The fact that maassume that the employer has per- chinery bad been previously protected, formed his duty in respect to the imple- or that subsequent to the injury guards ments and machinery furnished. Brad- were provided for it, is not evidence bury v. Goodwin, 1o8 Ind. 286; Little from which negligence may be inferred. Rock etc. R. Co. v. Leverett, 48 Ark. The mere fact that the machinery 333; 3 Am. St. Rep. 230; Fort Wayne proves defective, and that an injury reetc. R. Co. v. Gildersleeve, 33 Mich. sults therefrom, does not fix the mas133: Hughes v. Winona etc. R. Co., 27 ter's liability. Prima facie it is preMinn. 137; Wood on Master and Ser sumed that the master has discharged vant, Ø 376." Concerning servants' his duty to the servant, and that he was assumption of risk from dangerous ma- at fault. Therefore the servant chines, appliances or structures, see orecome this presumption by Scanlon v. Boston etc. R. Co. 147 proof of fault on the master's part, Mass. 484; s. C., 9 Am. St. 733, and either by showing that he knew or note 736; Northern Pac. R. Co. 7'. ought to have known of the defects. Herbert, 116 U. S. 642, 648, et seq.

The burden of proving negli3. Georgia etc. R. Co. v. Nelms, 29 gence upon the part of the master is Cent. L J. (Ga.) 352, with comprehen- upon the servant, and he is bound to sive note on subject 354. In this case the show that the injury arose from defects action was against a railroad and bank- known to the master, or which he ing company by an employee, injured would have known by the exercise of while driving spikes, by the hammer ordinary care, or that he has failed to breaking and flying into pieces. "This observe precautions essential to the falls," said SIMMONS, J., protection of the servants, which ordi



IV. MUNICIPAL CORPORATION'S LIABILITY FORDuty Concerning Highway Structures.-A municipal corporation, though bound to the duty of maintenance and repair, is not absolutely bound for the soundness of the structures it erects as part of a public highway.1

Liability Only for Negligence. It is not an insurer against all defects, latent as well as patent, but is liable only for negligence in the performance of its duties.3 nary prudence would have suggested.' not be ascertained by the exercise of The same work (section 382) says: ordinary care." •The servant seeking to recover for an 1. This must be admitted to be the injury takes the burden upon himself of the general doctrine of the authorities establishing negligence on the part of on this question, according to Rapho v. the master and due care on his own Moore, 68 Pa. St. 404, 408. part, and he is met by two presump- 2. See 2 Thomp. on Negl., 796. tions, both of which he must overcome 3. AGNEW, J., in Rapho v. Moore, in order to entitle him to a recovery: 68 Pa. St. 404, 408, where it is further first, that the master has discharged remarked: "Hence it is said in Shear, his duty to him by providing suitable & Redf. on Negligence, 148, as the instrumentalities for the business, and result of the authorities, that when the in keeping them in condition, and this defect in a lawful structure is latent, involves proof of something more than or is the work of a wrongdoer, either the mere fact that the injury was caused express notice of it must be brought from a defect in the machinery, imposes home to the corporation, or the defect upon him the burden of showing that must be so notorious as to be evident to the master had notice of the defect, or all who have occasion to pass the place that, in the exercise of that ordinary or to observe the premises; in which care which he is bound to observe, he case the corporation is charged without would have known of it. When this is (with) constructive notice, being in fault established, he is met by another pre- för not knowing the fact. Id., Ø 407. sumption, the force of which must be But what is negligence is itself a quesovercome by him, and that is that he tion in each case, and must always deassumed all the usual and ordinary pend on its peculiar circumstances. hazards of the business.' Mr. Thomp- "Great danger demands higher vigilance son, in his work on Negligence, p. 1053, and more efficient means $ 48, uses the following language: In safety. Where the peril is small, less an action by an employee against his will suffice.' Frankford etc. Tp. Co. v. employer for injuries sustained by the Phila. etc. R. Co., 54 Pa. St. 320. "The former in the course of his employ- degree of care having no legal standment, from defective appliances, the ard, but being measured by the facts presumption is that the appliances were that arise, it is reasonable such care not defective, and when it is shown that must be required as, it is shown, is ordithey were, then there is a further pre- narily sufficient under similar circumsumption that the employer had no stances to avoid the danger and secure notice or knowledge of this fact and the safety needed.' Id. Applying these was not negligently ignorant of it.' See principles here, it may be asked what also Pierce R. R. 382.

We structure more important, in view of the cannot hold—for, in our opinion, it is safety of life and property, can be well not the law—that an employer is liable imagined than such a bridge as this to a servant when he furnishes him having a span of fifty-two feet, crossing with an axle, a wagon, a saw, a ham- from ten to twelve feet above the stream mer, or any other tool which appears whose water is middle deep? The accito be first clase, and which subse- dent itself is evidence of its important quently, by some latent defect, breaks character. The plaintiff's wagon was and injures the servant. If such were overturned in the fall, the body crushed, the law, every farmer, contractor or the load of wheat fell underneath it other emplover would be liable to his into the stream, and one of the horses employee when he furnished him tools was killed. As remarked by our brother and they broke and injured him on ac- READ: “A bridge looks fair till it breaks count of some latent detect which could down; it is not like a pit which you

to secure


V. IN Goods SOLD-In General.- Whenever an article sold has some latent defect which is known to the seller, but not to the purchaser, the former is liable for this defect if he fails to disclose his knowledge on the subject at the time of the sale. If his knowledge is proved by direct evidence, his responsibility rests upon the ground of fraud. But there are cases in which the probability of knowledge on the part of the vendor is so strong that the courts will presume its existence without proof; and in these cases the vendor is held responsible upon an implied warranty. The only difference between these two classes of cases is, that in one the scienter is actually proved, while in the other it is presumed.! can see and avoid.' 'In practice it is and replace old planks by new, where used up to the last moment. Hum

necessary. In the following month the phreys v. Armstrong, 56 Pa. St. 204. accident took place by which the plainHence such a structure demands con- tiff's horse was injured in passing over stant vigilance to guard and preserve it. the bridge. The cause of the casualty Therefore, where a bridge is old, having was that one of the timbers was rotten stood for the length of time the timbers at the center. This defect could only composing it are accustomed to last, be discovered by cutting the timber in and when it may be reasonably ex

It was held that the defendants pected that decay has set in, it is negli- were guilty of no negligence, and that gence to omit ail proper precautions the plaintiff was not entitled to recover. to ascertain its true condition. Nor BARNARD, P. J. said: "To establish a will mere appearance in such a case liability upon the part of the detendexcuse the neglect. It is a matter of ants they must have neglected to repair common knowledge that invisible de- the defective bridge in question, after fects may, and under such circum- notice of its condition, with reasonastances probably do, exist; that either ble and ordinary


diliwet or dry rot may set in and not be visi- gence. They must have in their ble, and therefore should be sought for. hands funds with which to make But no

one of ordinary intelligence the repair, or they must have the would think of seeking for an inward power lawfully to raise such funds, if and invisible defect by merely inspect the defect continue sufficiently long. ing the surface of the wood. This be- Ignorance of the defect is of itself neging the case, it is clearly the duty of the ligence." But according to the same supervisors, having thus eason to be

opinion (p. 294), there “is no absolute lieve that defects may exist, to call to undertaking or guaranty upon the part their assistance those whose skill will of the defendants that the bridge enable them to ascertain the true state should, at all times and under all cirof the structure, and determine the cumstances, be in proper condition. A question of its safety. Without doing reasonable degree of watchfulness in this much at least, their duty to the ascertaining its condition from time to public is not performed. Not to do it time, and preventing its dilapidation, is is therefore negligence," etc.

all that is required by law of them. Defect Not Disclosed by Close Exami- (Barton v. Syracuse, 36 N. Y. 57; Mcnation.-But in Hicks v. Chaffee, 13 Carty 7. Syracuse, 46 N. Y. 194; Hun (N. Y.) 293, the defendants, com- Hover v. Barkhoof, 44 N. Y. 113.) A missioners of highways, were notified close examination by one of the comthat a bridge was unsafe. No par- missioners and two bridge builders ticular defect was pointed out. Within failed to disclose the defect, and did dis. a week afterwards the commissioners, close an apparently strong timber. To in company with an experienced bridge hold that the defendants, under such builder, examined the bridge carefully circumstances, are liable for a defect from above and below, taking off the which no examination, short of a planks and testing the timber, but could destruction of the bridge itself, would discover


of decay. show, is to make the defendants inShortly after, they caused another ex- surers of all structures." perienced bridge builder to examine it, 1. Hoe v. Sanborn, 21 N. Y. 552;



Exception to General Doctrine.-It is, indeed, laid down as a broad general doctrine that the vendor of personal property is not liable for defects of any kind in the thing sold, unless there is an express warranty or fraud in the seller. But to such statement there are exceptions 2 in the various instances of implied warranties, and in regard to latent defects, at least in unspecified chattels.

Manufacturer's Warranty Against.—Thus a manufacturer who sells goods of his own manufacture impliedly warrants that they are free from any latent defect growing out of the process of manufacture, though he is not liable for any latent defect in the material which he is not shown, and cannot be presumed to have known.3

No Warranty by Dealer Against.But there is no implied war ranty against a latent defect in manufactured goods sold by a merchant who is not a manufacturer, as where, in a sale by sample,



S. C., 78 Am. Dec. 163, 165, stating that certainty;” though in "regard to the the rule given in the first sentence of justness of this exception, it would the text is a universal doctrine, founded seem, aside from authority, scarcely upon the plainest principles of natural possible to doubt. If the vendor can justice.” This passage is quoted in be proved to have had knowledge of Hadley v. Clinton County Importing the defect, and failed to disclose it, all Co., 13 Ohio St. 502; s. c., 82 Am. Dec. agree he is liable. Is it not reasonable 454, 461. The subject of latent defects

to presume that he who made a thing in goods sold, as it stood at the time, which has a defect arising solely from was discussed in an article in 13 Cent. the manner in which it is made, is cogL. J. 201.

nizant of that defect? Where the statutory Warranty Against.—Under vendor has manufactured the article the code of Georgia the vendor of with his own hands, the interence of chattels warants that he knows of knowledge would plainly, in many

latent defect undisclosed. Ga. cases, be strong enough to charge him, Code, Ø 2650, sub-sec. 3.

And even in an action for fraud. But if the this provision has been applied manufacturing is done by agents, the where the vendor, who had owned general principles of law would hold

mare three years, stated, on sell- the principal responsible for those ing her, that her shortness of breath was whom he employs. Wherever the caused by epizootic, when in fact it was vendor, therefore, has himself manucaused by another disease, the "bel- factured the article sold, or procured it lows," which soon rendered her worth- to be done by others, if honesty and less. Perdue v. Harwell, So Ga. 150, 153. fair dealing are ever to be enforced by

What does not constitute a defect in a law, a warranty should be implied. steam chest is not latent, so as to be

But for

[the] hostility covered by an express warranty, when to all implied warranties, as to quality, it is readily discovered by taking off it never could have been doubted that the cover. Drew v. Edmunds, 60 Vt. where one sells an article of his own 401; s. C., 6 Am. St. Rep. 122, 124. manufacture, which has a defect pro

1. Kingsbury Taylor, 29 Me. 508; duced by the manufacturing process it8. C., 50 Am. Dec. 607.

self, the seller must be presumed to 2. Rodgers v. Niles, II Ohio St. have had knowledge of such defect,

and must be holden, therefore, upon the 3. Hoe v. Sanborn, 21 N. Y. 552; S.C., most obvious principles of equity and 78 Am. Dec. 163, 171, 175. In regard justice, unless he informs the pur

the first part of the statement of chaser of the defect, to indemnify him the text, it is said in this case, that this against it." To like effect, see Hoult v. exception to the general rule of caveat Baldwin, 67 Cal. 610; and as to sale of

emptor has been recognized in several seeds, White v. Miller, 71 N. Y. 118; - cases, but with some hesitation and un- s. C., 27 Am. Rep. 13, 17.

48, 53;


both the sample and the bulk of the goods contain such defect, which is unknown and undiscoverable by examination; and evidence is inadmissible to show that by the usage of merchants the seller is responsible therefor.1

Warranty of Fitness as Related to That Against Latent Defects. - The doctrine of a warranty against latent defects is frequently connected with the warranty of fitness for a particular purpose, Thus it has recently been held in England that upon a sale of goods by sample from a manufacturer there is an implied warranty that they will be of the quality suitable for the purposes for which they are bought, to cover any latent defects which are not apparent in the proper examination of the sample.2




But compare Rodgers v. Niles, il manufacturer, as in demand for a parOhio St. 43, 55, 56; Cunningham v. ticular trade or business, and being Hall, 4 Allen (Mass ) 268, 274; Randall ordered with a view to that market, are v. Newson, L. R., 2 Q. B. D. 102, 110; found to have in them, when supplied, s. c., 19 Eng. Rep. 243, 250.

a defect, practically new, not disclosed 1. Dickinson v. Gay, 7 Allen (Mass.) by the samples but depending on 29; S. C., 83 Am. Dec. 656, 658. Com- the method of manufacture, which renpare, to like effect, as to general doc- ders them unfit for the market for trine, Bragg v. Morrill, 49 Vt. 45; s. C., which they were intended. If it would 24 Am. Rep. 102, 104, and note.

be unreasonable, on the one hand, to Compare, generally, as to false pack- expect from the manufacturer a more ing, Barnard v. Kellogg, 10 Wall. (U. exact knowledge than in the ordinary S.) 383, 388-89.

course of business would be likely to 2. Drummond v. VanIngen, L. R., reach him of the processes and modes 12 App. Cas. 284; s. C.. 38 Eng. Rep. of treatment through which manufact. 380. In this case cloth merchants ured goods may pass, in the hands of ordered of cloth manufacturers, worsted the merchant or his customers before coatings which were to be in quality being adapted to their ultimate uses, it and weight equal to samples previously would be not less unreasonable to exfurnished by the manufacturers to the pect from the merchant merchants. The object of the mer- knowledge, not only of the sort of artichants was, the manufacturers cle which he wants, but also of the knew, to sell the coatings to clothiers processes by which it is to be manuor tailors. The coatings supplied cor- factured. He has a right to presume responded in every particular with the that the manufacturer understands his samples, but, owing to a certain defect, own business, and will use such methwere unmerchantable for purposes for ods as will be proper to produce a which goods of the same general class good article of the kind ordered. The had previously been used in the trade. burden of ascertaining beforehand that The same defect existed in the samples, this can be done, or how it is to be but was latent and was not discover- done, does not rest upon him." Lord able by due diligence upon such in- Herschell relied, as to warranty of fitspection as was ordinary and usual ness and merchantability, upon Jones upon sales of cloths of that class. The v. Bright, 5 Bing. 533, and Jones 2'. EARL OF SELBORNE said: “I think it Just, L. R., 3 Q. B. 197, and as to the sufficient to say, that while the doctrine extension of the warranty of merchantof implied warranty ought not to be un- ability to sales by sample, upon Mody reasonably extended so as to require v. Greyson, L. R., 4 Ex. 49. manufacturers to be conversant with all Concerning warranty of fitness in its the specialties of all trades and business relation to latent defects, see Pease v. which they do not carry on, but for the Sabin, 38 Vt. 432; s. C., 91 Am. Dec. purposes of which goods may be or- 364, and note 365; Bragg v. Morrill, dered from them, yet I think it does ex- 49 Vt. 45; S. C., 24 Am. Rep. 102, 103, tend to such a case as the present, if 104, and note; Rodgers v. Niles, in the goods, being of a class known and Ohio St. 48, 54, 55; Leopold v. Van understood, between merchant and Kirk, 27 Wis. 152, 156; Downing z'.

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