inspection as to their condition. The substance of the evidence is that the defendants, having work to be done requiring the use of ladders, employed competent men, furnished suitable ladders and the means to fit them for the use that might be required from time to time, and left the whole to the workmen as part of the work. After the accident, it was discovered that the spurs of this ladder measured one-quarter and threeeighths of an inch, respectively, at the points. It did not appear how fine the points should have been to be called sharp, but it appears to have been conceded that the spurs of this ladder were dull. The contention is that, if the spurs had been sharp, they would have

made by Sanborn, or to his failure to use the precautions against slipping at the foot taken by the other workmen. That a ladder may and probably will fall when erected for use if the foot is not properly secured is a matter of common knowledge, of which Sanborn, as a skilled mechanic, was not ignorant. The position of the ladder when Sanborn mounted it was a temporary one for this particular service. Ordinarily it was kept and used in another part of the shop. As he did not accept the ladder as placed by the other workmen, he cannot claim that, when he used it, it was a staging erected by other workmen representing the master, for whose lack of care he (Sanborn) was not responsible, because he rejected their adjust-penetrated the floor when Sanborn replaced ment of the ladder for one of his own.

[1] If due weight is given to its stability for so long a time and to the fact that it fell as soon as it was in use as Sanborn placed it, the only conclusion possible is that, if he had not changed the position of the ladder, it would not have fallen, and hence that his own lack of care in placing the ladder was the sole proximate cause of his injury.

the ladder and would have held its foot; while Sanborn's freedom from fault in failing to discover that the ladder was firmly held before he mounted is claimed upon his understanding that from the practice or custom of the shop the man at whose machine the ladder was kept sharpened the spurs. The defendants made their defense upon the ground that as matter of law and upon the facts it was not their duty to sharpen the spurs. Subject to their exception, the case was left to the jury upon the theory that it was the masters' duty to furnish Sanborn a ladder with sharp spurs when he undertook the adjustment of the belt.

[3] The obligation of the master to furnish his servants suitable instrumentalities for the work (McLaine v. Company, 71 N. H. 294, 296, 52 Atl. 545, 58 L. R. A. 462, 93 Am. St. Rep. 522) does not require him to do the work. Hence, if the work involves the preparation of a work place, providing such a place is the duty of the servant, and not of the master. The master's duty ends with providing suitable tools and materials for such purpose. Manning v. Manchester Mills, 70 N. H. 582, 49 Atl. 91; Robichaud v. Mendell, 75 N. H. 391, 74 Atl. 1049.

[2] It is hardly conceivable that a reasonably careful man of the plaintiff's intelligence and experience should not have known, when he "set" the ladder "down on the floor," that the spurs attached to the foot of the ladder did not enter the floor or hold it securely for the use he was to make of it. If for any reason he was not aware of that fact, his ignorance is imputable to such a lack of perception or such negligent conduct as no prudent man would be guilty of under similar circumstances. The case might be left here; but there was evidence from which it is argued that the defendants' fault and Sanborn's freedom from fault as the legal cause of the injury could be found. It appeared that for use in connection with the overhead shafting ladders were necessary and several were provided. Some were kept at particular machines for use with such machines; others were for general use throughout the shop. One-the ladder in question-was kept by a machine called the four-sided planer; but, being the only long ladder in the shop, it was occasionally used elsewhere whenever a ladder of that length was required. So far as appears, the ladders furnished were suita[5] The making of repairs which requires ble for the purpose, and were equipped with special skill and experience is the master's iron spurs bolted to the foot of the ladder duty because it is not a part of the work the and pointed so that the spurs could be made inexperienced servant is employed to perto penetrate the floor, which was of hard form. Jaques v. Company, 66 N. H. 482, wood, and so hold the foot of the ladder | 22 Atl. 552, 13 L. R. A. 824.

[4] As the selection of suitable tools or materials out of a sufficient supply of suitable ones provided by the master is part of the work, so is the selection of a particular workman for a special task when competent ones are furnished. Hilton v. Railroad, 73 N. H. 116, 59 Atl. 625, 68 L. R. A. 428.

from slipping when the ladder was erected [6] "In many kinds of service the care and for use. As the spurs might become dulled by use so as not to readily penetrate the floor, the defendants provided files and emery wheels with which to sharpen them. The operation of sharpening was a simple one which the plaintiff understood and had performed. The defendants made no rule as to the sharpening of the spurs, and provided no

keeping of tools and machinery in a condition of safety require merely the attention and repairs occasioned by ordinary use and wear, and are properly a part of the regular business of the servant engaged in the use of such tools and machinery. In such cases the duty of the employer is performed by furnishing safe tools and machinery and the

means of making needed repairs, and the [er that is what the ordinary man does. duty of making the repairs may be intrust- Such is not the usual course. The lumbered to servants, and any neglect in the per-man does not follow the choppers into the formance of this service is the negligence of woods to see that their axes are kept sharp; a servant." Jaques v. Company, supra, 66 the farmer does not stay with the mower in N. H. 484, 22 Atl. 553, 13 L. R. A. 824. If the field to oversee proper use of whetstone the foregoing statement made by this court and rifle. The keeping of simple tools in in 1891 is the law, it disposes of the funda- order for use is a part of the work; and mental question whether the keeping of com- when the necessary "inspection and repair mon tools in condition for use may be in- is incidental to the use of the appliancetrusted to servants as a part of the work i. e., is a part of the work of its use-such of using such tools. It is true this state- inspection and repair is the duty of the ment is in a sense dictum, because the de- servant." McLaine v. Company, 71 N. H. cision was that the negligent repair com- 294, 296, 52 Atl. 545, 546 (58 L. R. A. 462, plained of was not a part of the work; but 93 Am. St. Rep. 522). It seems hardly necthe rule then stated involves the principle essary to suggest that a ladder, like an axe, upon which the later cases of Manning v. saw, spade, or hoe, is a simple tool, but that Manchester Mills, 70 N. H. 582, 49 Atl. 91, point has been adjudicated. Cahill v. HilMcLaine v. Company, 71 N. H. 294, 52 Atl. ton, 106 N. Y. 512, 518, 13 N. E. 339; Borden 545, 58 L. R. A. 462, 93 Am. St. Rep. 522, v. Company, 98 Wis. 407, 411, 74 N. W. 91, Galvin v. Pierce, 72 N. H. 79, 54 Atl. 1014, 67 Am. St. Rep. 816, 819. Robichaud v. Mendell, 75 N. H. 391, 74 Atl. 1049, and others, were determined. In short, was the matter in question one of service, part of the work, or a masterful act? Wallace v. Railroad, 72 N. H. 504, 57 Atl. 913; Tilley v. Company, 74 N. H. 316, 317, 318, 67 Atl. 946, and cases cited.

[8] The degree of sharpness of the spurs necessary at a particular time would depend upon the particular use to which the ladder was to be put. The determination of the amount of repair necessary at any time and the making of it was hence peculiarly a part of the work. 4 Thomp. Com. Neg. 3999.

it is not. In such case the master would be responsible for the negligence in the performance of the duty so undertaken. Whether the contract is the one thing or the other may be without dispute. The master's undertaking may be conceded, as in Thompson v. Bartlett, 71 N. H. 174, 51 Atl. 633, 93 Am. St. Rep. 504; the evidence may present a question for the jury, as in Haakensen v. Company, 76 N. H. 443, 83 Atl. 804.

The concrete question applicable to the present case is whether such inspection and [9] The making of simple repairs is a delrepair as was necessary to keep the ladders egable duty, not because of its simplicity, fit for use was, or was not, a duty which but because such service may be a part of might be delegated to a servant. "The prin- the work. When the repair is not made as ciple involved in determining whether the a part of the work the servant is employed act in question is one of service or master- to do, but is made independently by the ship is not derived from exact or ingenious master or by others under his direction, such definitions of the words "place, tools, or ap-repair may become the master's act, not pliances," however convenient and useful they because it cannot be delegated, but because may be in a particular case, but from considerations of the requirements of ordinary and reasonable care on the part of both the employer and the employé. If as a matter of fact a particular course of conduct of the master toward his servant is unreasonable when measured by the conduct of men in general engaged in similar occupations, he cannot shield himself as a matter of law from the consequences of such conduct by a resort to verbal distinctions which oftener serve to obscure than to elucidate legal principles.' English v. Amidon, 72 N. H. 303, 304 [56 Atl. 549, 550]. Similarly, if it is plainly unreasonable that a particular duty should be personally imposed upon the master, such imposition cannot be derived from the extension of the duty beyond what can fairly be termed reasonable by logical deduction from the terms ordinarily employed in defining the duty." Hilton v. Railroad, 73 N. H. 116, 119, 59 Atl. 625, 627 (68 L. R. A. 428).

[7] Whether it is reasonable to conclude that a master, having furnished competent servants with simple tools and the means to repair the effects of use, is also bound to follow the work to see that the servants employ the appliances which he has fur

[10] But, the burden being on the plaintiff, to go to the jury it is necessary for him to present some evidence of the master's special contract; in this case, an agreement to provide his servants with ladders sharply spurred at all times, or at least to furnish on this occasion a ladder with sharp spurs. The case discloses no direct evidence of such a contract; but it was claimed that there was evidence from which it could be found that the defendants employed Drowns, the man in charge of the four-sided planer where this ladder was kept, to keep the spurs on this ladder sharp for whoever might have occasion to use it. There is no claim of any direct evidence to this effect; but the contention is that there was a custom or practice in the shop for him to do so, which was so notorious and long continued that

and to have adopted it, so that Drowns' fail- | bring such understanding to the notice of ure to perform the duty was their default. the other. In Disalets v. Company, 74 N. The evidence from both the plaintiff himself H. 440, 69 Atl. 263, the plaintiff, an inexand other witnesses was that the ladders perienced workman injured through the use kept at special machines were regarded as of an unsuitable tool in common use in the part of the equipment of the machines, or defendants' mill, being ignorant of the dantools belonging to the machines, which it ger, was permitted to recover, and it was was the duty of the man at the machine to said that from the common use it could be keep in order. But this does not imply that found that the defendants furnished such it was the practice of any of these men tool for use. In this case, as just suggestto do more than keep the ladders fit for ed, there is no evidence of common use of use at their machines. It is conceded that this ladder in reliance upon Drowns keeping the spurs on ladders used generally through- the spurs sharp, and it cannot be found that out the shop were sharpened by whoever the defendants furnished the ladder at the had occasion to use them. There was no time of the accident. evidence that the spurs upon this ladder [13] But, although the cause of the servwere not sharp enough for use at the four-ant's injury is a condition of the master's sided planer, where the floor was roughened instrumentalities due to ordinary wear or by its frequent use. There was no evidence the negligence of fellow-servants, he still that Drowns or any man at the four-sided may recover if he can show his own freedom planer had ever sharpened this ladder for use elsewhere, or understood it was his duty by custom or otherwise to do so.

[11] Relying upon a custom to establish the defendants' duty, the plaintiff does not meet the burden of proof without showing at least one instance in which the custom was followed. If Sanborn's testimony that he did not examine the spurs because he understood it was the duty of the man at whose machine the ladder was kept to keep the spurs sharp is sufficient to prove his case, it does warrant the conclusion that the master assumed that duty no more than if, using a ladder not kept at a machine, he had neglected to make such examination be cause he knew it was in use the day before by a competent man who would have sharpened the spurs if necessary. If such had been the case, the failure of such workman to make a repair necessary for his use of the tool would not have been the master's default. Neither would Drowns' failure to keep the ladder in condition for his work, if such had been proved, be the master's default. Neither is Sanborn's testimony of the understanding of himself and others as to the duty of the man who worked at a machine to care for the ladder kept there, even in the broad statement finally made upon cross-examination, sufficient to charge the defendants with the assumption of the duty of keeping the spurs sharp.

from fault and the master's knowledge or culpable ignorance of the danger in time to prevent the injury. Klineintie v. Company, 74 N. H. 276, 67 Atl. 573; Leazotte v. Company, 74 N. H. 480, 69 Atl. 640.

[14] But the plaintiff knew all that the defendants did. He was an experienced man. He knew that the spurs might become dull by use, and that, if dull, they might not hold securely; that according to his claim the sharpening of the spurs was left to the man in charge of the machine at which the ladder was kept; and that no inspection was made from time to time to ascertain if the spurs were sharp. Knowing these things, he stands precisely as if he had been specially warned. If he had been told before he mounted the ladder that the defendants had made no inspection of the ladder, and did not know whether the spurs were sharp enough to hold, he would have been given no information he did not already possess. He did not rely on the absence of warning or upon the inspection by the defendants, for he testified that he knew there was no inspection.

The defendants were entitled to a verdict on the issue of negligence. That result renders it unnecessary to consider the validity of the verdict on the issue of fraud.

Exceptions sustained; verdict set aside; verdict and judgment for the defendants.

BINGHAM and PEASLEE, JJ., dissented. The others concurred.

[12] The plaintiff seeks to charge the defendants with responsibility for a practice in the shop in conflict with the fact as to the engagements directly made. If it was the fact that the workmen in the shop had the practice or custom of using this ladder without examining the spurs, relying upon Drowns to keep them sharp, the case con- (Supreme Court of New Hampshire. Rocking

tains no evidence of such custom or prac
tice. So far as appears, this was the first
and only instance of such action.
The con-
tract between the parties is not to be va-
ried by proof of the understanding of one
without evidence of some acts tending to

(76 N. H. 555)

READ & DAVIS v. CENTRAL
VERMONT RY.

ham. Feb. 4, 1913.)

1. COURTS (§ 489*)-ERRONEOUS SHIPMENT BY CARRIER ACTION-JURISDICTION OF STATE COURT.

Where defendant carrier negligently carried certain lumber to the wrong place, and then carried it back to the proper destination, an ac

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 86 A.-11

tion to recover the excess freight and interest | plaintiffs introduced in evidence the shipwhich plaintiff was compelled to pay by reason ping order for the lumber, produced upon of the mistake was an action to recover for detheir demand, which showed the weight of the shipment and the rate per hundredweight; and one of the plaintiffs was permitted to testify to statements of the defendant's station agent regarding the rate

2. CARRIERS (§ 202*)-MISSHIPMENT-RECOV-between Sharon, Vt., and West Swanzey, N. ERY OF FREIGHT PAID.

4. EVIDENCE (§ 244*)-STATEMENT OF AGENT-ure to perform a duty imposed on it by the MISSHIPMENT OF FREIGHT.