to assist a regular lineman, S, and F brought a live wire in contact with S's body so that S was killed, the M. Co. was held liable for its breach of duty, through its manager, to provide a competent fellow servant for S.8

§ 36. Duty as to rules. The master is bound to use reasonable care to make, promulgate, and enforce rules and regulations governing the operations of his servants, so as to afford servants obeying them a reasonable protection in the discharge of their duties. In the case of Abel v. Delaware &c. Ry. Co., a car repairer while under a car on a sidetrack making repairs was killed by an engine backing against the car. No regulation to safeguard men in making repairs on stationary cars had been made by the company, and on this account it was held liable to the representative of the deceased. It is not sufficient to formulate rules; they must also be published, for example by posting them about the premises or otherwise giving servants a reasonable opportunity to learn them.10 The master also must use reasonable diligence in enforcing rules, and if they fall into disuse through his failure to be vigilant in insisting on their observance he is liable if his servant is injured thereby.11

§ 37. Duty as to special orders, etc. In addition to general rules, the master has a duty to use reasonable care to give special orders in special cases or unusual situations, 12 and to give instruction and warnings to employes in case the putting of inexperienced or immature workmen at an unfamiliar task, or at any task the risks of which are not patent to them, would lead a reasonable man to consider instruction or cautioning necessary. Thus in the case of L. & N. Ry. Co. v. Miller, 13 a switchman who had had, as the yardmaster knew, but five days' experience, and that as a volunteer member of a switching crew, was assigned by this yardmaster to a crew without further advice, warning, or instruction. Evidence tended to show that four weeks' ex

Scott v. Iowa Telephone Co., 126 Ia. 574.

103 N. Y. 581.

10 Strong v. Rutland Ry., 121 App. Div. (N. Y.) 391.

11 Merrill v. O. S. L. etc. Ry. Co., 29 Utah 264.

12 Hankins v. N. Y. Ry. Co., 142 N. Y. 416.

18 104 Fed. Rep. 124.

perience as learner was requisite to acquaint one with the risks of such a position. The switchman in the exercise of his duties attempted to make a coupling which was new to him, and which could be done safely only in a particular way of which he knew nothing. He was injured and the master was held liable. The court said: "The law is now well settled that the duty of cautioning and qualifying an inexperienced servant in a dangerous occupation applies as well to one whose disqualification arises from a want of that degree of experience requisite to the cautious and skillful discharge of the duties incident to a dangerous occupation, as when the disqualification is due to youthfulness, feebleness, or general incapacity. If the master has notice of the dangers likely to be encountered, and notice that the servant is inexperienced, or for any other reason disqualified, he comes under an obligation to use reasonable care in cautioning and instructing such a servant in respect to the dangers he will encounter, and how best to discharge his duty."

§ 38. The servant's right to rely upon performance by the master. In the case of these duties of the master the servant may rely on a performance of them by the master unless he happens to know, as a matter of fact, that the master has not done his duty, or unless a reasonable person in the same circumstances would have observed this. He does not have to make any observation for himself.14

§ 39. Non-delegable character of these duties. The duties above enumerated, the master is bound to see performed. He may discharge them in person or by deputy, but the delegation of the discharging of the duty to a deputy, even where the master uses the greatest possible care in his selection, does not free the master from responsibility. His duty is to have reasonable care exercised in safeguarding the workmen. If his carefully selected and competent foreman should without warning become incompetent, and neglect to provide, for instance, proper inspection for a workroom, the master is still liable to a servant injured in consequence of this neglect. Reasonable care in selecting a substitute is not equivalent to reasonable care in actually

14 Silveira v. Iverson, 128 Cal. 187.

carrying out the duty imposed by law on the master. The master is exonerated in the case of delegated duty only when the delegate does in fact himself exercise reasonable care.

§ 40. Qualifications of the rule: In general. The liability of the master is subject to two qualifications. The servant may have voluntarily assumed the risk of injury arising from the master's failure to discharge any of his duties of protection; or he may have contributed to the injury through his own negligence. In either of these cases the master is not liable for the injury arising from his failure to provide the various protections under discussion.

§ 41. Same: Voluntary assumption of the risk by the servant. We have seen that the servant may presume, in entering on his employment, that his master has discharged his duty of provision against risks; but if he does in fact know that the master has not performed these duties, for instance that the premises or machinery are unsafe, and not merely knowing their physical condition but also appreciating the risk this involves, he undertakes the employment, he cannot then recover against the master for any injury received from the non-fulfilment of the master's duties in these regards. His voluntary assumption of the risk is a defense to the master. So also, if after he has begun work he then at any time discovers the master's non-performance of his duty, and yet without complaint and without any promise by the master or his representative that the defect will be remedied, he chooses to go on working, this also will be a defence to the master. A teamster was injured under the following circumstances: He was driving a four-horse lumber wagon which had no seat, and the lines of which were too short for driving four horses. He knew these defects but continued working for several months, until in consequence he was pulled under the horses' hoofs and injured. It was held that he had voluntarily assumed the risk and could not recover.15 If, however, the servant complains of a defect and receives a promise of repair, he may, in reliance on the promise, continue a reasonable time using the defective apparatus or working in the dangerous place, unless the

15 Lemberg v. Glenwood Lumber Co., 145 Cal. 255.

danger is so imminent that no reasonably prudent man would continue to work. In the case of Anderson v. Seropian, 16 S was a box-printer, who, after working a defective press, complained to a foreman that he did not like to run it at the speed demanded of him. The foreman said: "Go ahead, and when you get far enough ahead with the material for the box-makers to work on, why then we will fix the machine." S worked on, and that afternoon his hand was mangled in the machine. It was held that he had not assumed the risk. He had complained and had a promise of repair. But if upon complaint the master refuses to repair or makes no promises, remaining at work will be held a voluntary assumption of risk.

§ 42. Same: What assumption is voluntary. It is to be noted that the assumption of risk must be voluntary. Hence it must be shown by the master that the servant both knew of the risk and also appreciated its character. It is not enough to know the existence of a defect; the servant must also understand in general the risk its continuance involves. Hence also if the servant is acting under compulsion he does not assume the risk so as to free the master from liability. Thus where a Polish boy, unable to speak or understand English, is pushed by a foreman and frightened into going in between two shaky piles of timber to work, he has not assumed the risk of injury from their falling." But in America it is generally held that a mere fear of loss of employment, even if induced by a threat of discharge unless S works under the additional risk, is not sufficient to constitute coercion. Thus in the case of Lamson v. Axe Co.,18 S, a painter of hatchets, complained of a new rack for the fresh-painted hatchets as more dangerous than the old, because the hatchets were likely to fall on him. He was told to use the rack or leave. He stayed, and the accident he feared happened. When he sued the master he was held to have assumed the risk. The court said: "The plaintiff appreciated the danger more than anyone else. He complained and was notified that he could go if he would not face the chance. He stayed and took

10 147 Cal. 201.

17 Wells & Co. v. Gortorski 50 Ill. App. 445.

18 177 Mass. 144.

the risk. He did so none the less that the fear of losing his place was one of his motives."

A

§ 43. Same: Contributory negligence of the servant. servant cannot recover for injuries to which he has contributed directly by his own fault. He is bound to use reasonable care to protect himself from injury. If he does not, and his lack of care has been a proximate cause contributing to the injury, he cannot recover. Thus where a servant stepped without looking into a well lighted elevator shaft, even though the door, which should have been kept shut, had been left open through another servant's carelessness, his own negligence so contributed to the accident that he could not recover for injuries from his fall.19 For what constitutes contributory negligence see Chapter III, §§ 68-72.

Section 5. Exception to Obligation to Protect: Fellow Servant Rule.

§ 44. The nature of the fellow servant rule. The master is not bound to protect the servant from all risks incident to his employment. In the absence of statute the burdens of these risks are divided between the master and the servant. On the servant the law imposes the risks ordinarily incident to an employment of a given nature: the danger from wind and ice connected with bridge building; electric shock or breaking rope or wire incident to a telephone lineman's work; and the similar hazards arising out of the very nature of any particular employment. In addition to these, the common law requires the servant rather than the master to assume the risk of injury from the negligence or wilful misdeed of a fellow servant. He has of course a right of action against the wrong-doer himself, but not against the master as he might have in case he were not himself in the master's employ. As we shall see later (Section 7) a master is ordinarily liable to a person injured by his servant, if the injury is inflicted by the servant in the course of his employment and with an intention of serving the master. But if the injured person is a fellow servant of the wrong-doer,

19 Leahy v. U. S. Cotton Co., 28 R. I. 252.