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is to be done, safe appliances with which to work, and careful fellow-servants with whom to work, and also in prescribing a safe manner or mode of performing the work to be done. Any injury which is the proximate result of neglect to use due care in these matters will give a right of action to the servant against the master, unless the servant has assumed the duty of so furnishing, maintaining, or prescribing the means, place, or manner, or has assumed the risk incident to the danger arising from such want of care, or has been guilty of contributory negligence.29

The master is not an insurer of the safety of his premises, machinery, or carefulness of his servants, but must use such care in their selection, installation, and maintenance as the character of the machinery, the work to be accomplished, and the dangers of the employment reasonably demand.

In the following sections we will take up first the liability of employer to employee in its most familiar and typical form of master and servant, showing the master's duty of furnishing suitable and safe means, and prescribing proper regulations for conducting the work. The duties of the employee to his employer will be brought out in the relation of principal and agent, indicating the ways in which the latter may injure the principal through his selec tion of means and choice of manner of prosecuting his employment, and illustrated in applying the principles to the relation of attorney and client, physician and patient, apothecary and patron. It will be useless to go into detail in these illustrations or to multiply them, as the principles to be laid down may be applied wherever contracts of employment are found.

29 Post, sec. 149.

The general principles of negligence in this class of cases are no different from those in other classes to be taken up later on in this work.30 The same rules as to degrees of care, contributory negligence, and the like, apply in all questions of negligence wherever found. The only peculiarity here is, that the right to exact care is a right created by contract, and is a right against a single individual, or body of individuals, instead of members of civil society generally.

§ 144. Duty of Master With Regard to Premises and Appliances. There is some difficulty in marking the line between premises and appliances. It is easy to see that factory buildings or brickyards constitute premises, and that a machine or tool is an appliance, but many things have a place which, to say the least, is indefinite. Thus a scaffolding, a ship, an engine, a turntable, and many others may be considered as places to work or instruments of work. The same rules apply to both, however, and it is of little avail to distinguish between them, except in construction of some statute. In one state at least it has been held that whatever is temporary is an "appliance" and whatever is permanent is a "place."81

The master is not an insurer of the safety of the premises or appliances; reasonable care in regard thereto is enough.32 Negligence with respect to this

30 Chapter 19.

81 Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017 (a defective scaffolding); Whallon v. Sprague Electric Elevator Co., 1 N. Y. App. Div. 264, 37 N. Y. Supp. 174.

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32 As to premises, see Bethlehem Iron Co. v. Weiss, 100 Fed. 45; Elledge v. National City etc. R. Co., 100 Cal. 282, 38 Am. St. Rep. 290, 34 Pac. 720; McElligott v. Randolph, 61 Conn. 161, 29 Am. St. Rep. 181, 22 Atl. 1094; Cheeney v. Ocean Steamship Co., 92 Ga. 726, 44 Am. St. Rep. 113, 19 S. E. 33; Ross v. Shanley, 185 Ill. 390, Torts, Vol. I-20

duty consists only in furnishing appliances which are not reasonably safe. Hence due care does not permit the retention of old and insecure machinery. 33 Where the employment is mere housework, and not of an intrinsically dangerous character, the retention of old and even primitive tools or appliances is not necessarily negligence.34 But if the service in

56 N. E. 1105; O'Neal v. Chicago etc. R. Co., 132 Ind. 110, 31 N. E. 669; Fosburg v. Phillips Fuel Co., 93 Iowa, 54, 61 N. W. 400; St. Louis etc. R. Co. v. Irwin, 37 Kan. 701, 1 Am. St. Rep. 266, 16 Pac. 146; Sawyer v. Rumford Falls Paper Co., 90 Me. 354, 60 Am. St. Rep. 260; Gustafsen v. Washburn etc. Mfg. Co., 153 Minn. 468, 27 N. E. 179; Smith v. Peninsular Car Works, 60 Mich. 501, 1 Am. St. Rep. 542, 27 N. W. 662; Sullivan v. Hannibal etc. R. Co., 107 Mo. 66, 28 Am. St. Rep. 388, 17 S. W. 748; Dayharsh v. Hannibal etc. Ry. Co., 103 Mo. 570, 23 Am. St. Rep. 900, 15 S. W. 554; Huffman v. Newman, 55 Neb. 713, 76 N. W. 409; Hustis v. James A. Banister Co., 63 N. J. L. 465, 43 Atl. 651; Fredenburgh v. Northern etc. R. Co., 114 N. Y. 582, 11 Am. St. Rep. 697, 21 N. E. 1049; Wright v. Southern R. Co., 122 N. C. 959, 30 S. E. 348; Anderson v. Bennett, 16 Or. 515, 8 Am. St. Rep. 311, 19 Pac. 765; Vanesse v. Catsburg Coal Co., 159 Pa. St. 403, 28 Atl. 200; Coleman v. Wilmington etc. R. Co., 25 S. C. 446, 60 Am. Rep. 516; Gulf etc. Ry. Co. v. Brentford, 79 Tex. 619, 23 Am. St. Rep. 377, 15 S. W. 561; Richmond etc. R. Co. v. Norment, 84 Va. 167, 10 Am. St. Rep. 835, note, 4 S. E. 211; Nadaw v. White River Lumber Co., 76 Wis. 120, 20 Am. St. Rep. 29, 43 N. W. 1135. As to appliances, see Mason etc. R. Co. v. Yockey, 103 Fed. 265; Roberts v. Porter Mfg. Co., 110 Ga. 474, 35 S. E. 674; Little Rock etc. R. Co. v. Eubanks, 48 Ark. 460, 3 Am. St. Rep. 245, 3 S. W. 808; Indianapolis etc. Ry. Co. v. Toy, 91 Ill. 474, 33 Am. Rep. 57; Towns v. Vicksburg etc. Ry. Co., 37 La. Ann. 630, 55 Am. Rep. 508; Wonder v. Baltimore etc. R. Co., 32 Md. 411, 3 Am. Rep. 143; Mad River etc. R. Co. v. Barber, 5 Ohio St. 541, 67 Am. Dec. 312; Augerstein v. Jones, 139 Pa. St. 183, 23 Am. St. Rep. 174, 21 Atl. 24; Servier v. Shoneman, 196 Pa. St. 63, 79 Am. St. Rep. 689, 46 Atl. 292; Cole v. Chicago etc. Ry. Co., 71 Wis. 114, 5 Am. St. Rep. 201, 37 N. W. 84; Koontz v. Chicago etc. R. Co., 65 Iowa, 224, 54 Am. Rep. 5; Columbus etc. R. Co. v. Troesch, 68 Ill. 545, 18 Am. Rep. 578; St. Louis etc. R. Co. v. Weaver, 35 Kan. 412, 57 Am. Rep. 176, 11 Pac. 408; Flynn v. Beebe, 98 Mass. 575; Sykes v. Packer, 99 Pa. St. 465; Probst v. Delawater, 100 N. Y. 266, 3 N. E. 184.

33 Richmond etc. Ry. Co. v. Jones, 92 Ala. 218, 9 South. 276. 34 Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102.

volves the use of highly dangerous instrumentalities, such as dynamite, the master ought to employ every precaution not inconsistent with the prosecution of the business.35 Reasonable care does not demand extraordinary diligence to prevent danger. The precautions to be observed depend upon the natural dangers incident to the employment, but, ordinarily, it is not necessary that the master provide the newest and best machinery, even where it is the safest.

36

It is often said that negligence may be determined by the custom of masters in the same line of business, and that, if the same sort of appliances are in use by others, or are used by others in a similar un

35 Mather v. Rillston, 156 U. S. 391, 15 Sup. Ct. Rep. 464, Justice Field: “Occupations, however important, which cannot be conducted without necessary danger to life, body or limb, should not be prosecuted at all without all reasonable precautions against such dangers afforded by science. The necessary danger attending them should operate as a prohibition to their pursuit without such safeguards. Indeed, we think it may be laid down as a legal principle that in all occupations which are attended with great and unusual danger, there must be used all appliances readily attainable, known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence."

36 Sweeney v. Berlin & Jones Env. Co., 101 N. Y. 520, 54 Am. Rep. 722, 5 N. E. 358; Greenleaf v. Illinois Central R. Co., 29 Iowa, 14, 4 Am. Rep. 181; Ross v. Pearson Cordage Co., 164 Mass. 257, 49 Am. St. Rep. 459, 41 N. E. 284; Lehigh etc. Coal Co. v. Hayes, 128 Pa. St. 294, 15 Am. St. Rep. 680, 18 Atl. 387; Augerstein v. Jones, 139 Pa. St. 183, 23 Am. St. Rep. 174, 21 Atl. 24; Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S. E. 869; Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102; Rooney v. Cordage Co., 161 Mass. 153, 36 N. E. 789; Sappenfield v. Main Street etc. R. Co., 91 Cal. 48, 27 Pac. 590; Soderman v. Kemp, 145 N. Y. 427, 40 N. E. 212; Lyttle v. Chicago etc. R. Co., 84 Mich. 289, 47 N. W. 571; Hickey v. Taafe, 105 N. Y. 26, 12 N. E. 286; Philadelphia etc. R. Co. v. Kernan, 103 Pa. St. 124; Friel v. Citizens' etc. R. Co., 115 Mo. 503, 22 S. W. 498; Richards v. Rough, 53 Mich. 212, 18 N. W. 785; Payne v. Reese, 100 Pa. St. 301.

37

guarded condition, the master will not be liable for injuries resulting from them or their condition." Some courts, however, say that the fact of such general use is not conclusive upon the question.38 The true principle seems to be, that a servant assumes the risks of which he has knowledge, or which his knowledge would lead him to expect, and he should anticipate that the appliances which, to his knowledge or implied knowledge, are commonly employed and in general use.*

39

The rule above discussed, and so frequently ap plied in cases of injuries received by a servant from latent dangers in machinery, that the servant is not to be exposed without warning to latent dangers of which he knows nothing, and is not chargeable with imputed knowledge, provided the master knew, or ought to have known, of the danger, is of univer sal application in all relations between master and servant. For instance, the general principle that one who negligently exposes another to an infectious or contagious disease, which such other contracts, is liable therefor, in the absence of contributory negli gence or assumption of the risk,10 is applicable to

40

37 Lehigh etc. Coal Co. v. Hayes, 128 Pa. St. 294, 15 Am. St. Rep. 680, 18 Atl. 387; Nadau v. White River Lumber Co., 76 Wis. 120, 20 Am. St. Rep. 29, 43 N. W. 1135; Bean v. Oceanic Steam Nav. Co., 24 Fed. 124; McCarthy v. Boston Duck Co., 165 Mass. 165, 42 N. E. 568; Delaware River Iron Shipbuilding Co. v. Nuttall, 119 Pa. St. 149, 13 Atl. 65; Reese v. Hershey, 163 Pa. St. 253, 43 Am. St. Rep. 795, 29 Atl. 907; Richmond etc. R. Co. v. Jones, 92 Ala. 218, 9 South. 276; Burns v. Sennett, 99 Cal. 363, 33 Pac. 916; Allen v. Burlington etc. R. Co., 64 Iowa, 94, 19 N. W. 870; Propsom v. Leatham, 80 Wis. 608, 50 N. W. 586.

38 McCormick Harvester Machine Co. v. Burandt, 136 III. 170, 26 N. E. 588; Taylor v. Carew Mfg. Co., 143 Mass. 470, 10 N. E. 308; Reichla v. Gruensfelder, 52 Mo. App. 43.

39 See post, sec. 149.

40 Gilbert v. Hoffman, 66 Iowa, 205, 55 Am. Rep. 263; Smith v. Baker, 20 Fed. 709.

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