master owes to his servants, he is responsible to them for the manner of its performance. The converse of the proposition necessarily follows. If the act is one which pertains only to the duty of an operative, the employee performing it is a mere servant, and the master, although liable to strangers, is not liable to a fellow-servant for its improper performance." In Ford v. Fitchburg R. Co.1 a fireman on a Massachusetts railroad was injured by reason of a defect in the engine, which was due to the neglect of the employees of the company charged with the duty of keeping the engine in repair, although the company had no reason to suspect negligence or incompetency on the part of such employees, and it was held that the company was liable In that case the Court used the following language: "The rule of law which exempts the master from responsibility to the servant for injuries received from the ordinary risks of his employment, including the negligence of his fellow-servants, does not excuse the employer from the exercise of ordinary care in supplying and maintaining suitable instrumentalities for the performance of the work required. One who enters the employment of another has a right to count on this duty, and it is not required to assume the risk of the master's negligence in this respect. The fact that it is a duty which must always be discharged, when the employer is a corporation, by officers and agents, does not relieve the corporation from the obligation. The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants of those who are engaged in operating it. They are charged with the master's duty to his servant." And in a recent Kansas case, the Court said: "At common law, whenever the master delegates to any officer, servant, agent or employe high or low, the 1. 110 Mass. 240; s. c. 14 Am. Rep. 598. 2. Atchison, etc., R. Co. v. Moore, 29 Kan. 632. the performance of any duty which really devolves upon master himself, then such officer, agent, servant or employe, stands in the place of the master and becomes a substitute for the master-a vice-principal-and the master is liable for his acts or his negligence." The Supreme Court of Oregon, in a case decided in 1888,1 after reviewing a number of authorities, openly adopt this test, saying : "The conclusion to be deduced from these and other authorities, to which reference might be made, is that the master is chargeable for any act of negligence in so far as such servant is charged with the performance of the master's duty to his servants, such as the selection of competent servants, the furnishing of suitable tools and appliances, the providing of a reasonably safe place in which to work, and the observance of such care as will not expose the servant to hazards and perils which may be guarded against by proper diligence, etc.; and to the extent of the discharge of these duties which the master owes to his servants by the middle-man or vice-principal, the latter stands in the place of the master." This test has also been expressly approved and adopted by other courts.2 In still other jurisdictions, and these constitute 1. Anderson v. Bennett, 19 Pac. Co., 55 Vt. 84; s. c. 11 Am. & Eng. Rep. 765. 2. Gunter v. Graniteville Mfg. Co. 18 S. Car. 262; s. c. 44 Am. Rep. 573; Calvo v. Railroad Co., 23 S. Car. 528; Couch v. Charlotte, etc., R. Co., 22 S. Car. 557; s. c. 28 Am. & Eng. R. R. Cas. 331; Moon v. Richmond & A. R. Co., 78 Va. 745; s. c. 17 Am. & Eng. R. R. Cas. 531; Baltimore & O. R. Co. v. McKenzie, 81 Va. 71; Criswell v. Pittsburg, etc., R. Co., (W. Va.) 33 Am. & Eng. R. R. Cas. 232; Riley v. Railway Co., 27 W. Va. 145; Brown v. Minneapolis, etc., R. Co., 31 Minn. 553; s. c. 15 Am. & Eng. R. R. Cas. 333; Davis v. Central Vermont R. R. R. Cas. 173; Crispin v. Babbitt, 81 N. Y. 516; Flike v. Boston, etc., R. Co., 53 N. Y. 549; McCosker v. Long Island R. Co., 84 N. Y. 77; s. c. 5 Am. & Eng. R. R. Cas. 564; Hussey v. Coger (N. Y. 1889) 20 N. East Rep. 556; Corcoran v. Holbrook, 59 N. Y. 517; Loughlin v. State, 105 N. Y. 159; Hannibal, etc., R. Co. v. Fox, 31 Kan. 586; s. c. 15 Am. & Eng. R. R. Cas. 325; Fones v. Phillips, 39 Ark. 17; Indiana Car. Co. v. Parker, 100 Ind. 191; See also note by George W. Easley, 25 Am. & Eng. R. R. Cas. 515, and cases cited in next chapter. the great majority, the criterion has clearly been applied and the cases decided with reference to it, although the courts have not stated it in general terms and announced its applicability to all cases. As it is based entirely upon the duties which the master owes the servant, these will be the subject of the next chapter in connection with their application to the fellow-servant rule. CHAPTER III. DUTIES OF THE MASTER-PERSON PERFORMING IS NOT A 24. Duties of the Master towards his Servant. 25. Duty to Supply Proper Machinery and Appliances. 26. When Rule as to Machinery does not Apply. 27. Modification of the Rule-Peschel v. Chicago, etc., R. Co. 28. Safe Place to Work-Stagings and Scaffolds. 29. Railway Track and Roadbed. 30. Same-Defences. 31. Injuries Caused Partly by Defective Machinery and Partly by Negligence of Fellow Servant. 32. Duty to Keep Machinery and Appliances in Repair. 33. Illustrations and Application of the Rule. 34. Doctrine of the English Decisions. 35. American Cases following English Rule. 36. When American Rule is Inapplicable. 37. Selection and Retention of a Sufficient Number of Com petent Servants. 38. Establishment of proper Rules and Regulations. 39. As to Inexperienced Minor Employes. 40. As to Inexperienced Adult Employes. 41. Where the Master Delegates Charge of Entire Business to one Person, 42. Vice Principal doing Co-servant's Work. 8 24. Duties of the Master towards his Servant.— It is no answer to an action by a servant against the master for an injury caused by the master's negligence that the injury occurred in the course and conduct of the 2 business in which the servant was employed. For his own negligence, as we have seen, the master is responsible to his servant equally as to any other person. The servant on entering the employment of the master does not assume the risks of the master's negligence. He assumes the risk of the negligence of a co-servant; but the reason of the rule, which exempts the master from liability to one servant for the negligence of another, ceases and has no application when the master's own negligence caused the injury. The rule that the master is not liable for the negligence of a co-servant does not, however, go to the extent of exempting him from liability in every case, when it appears that he did not himself do or direct the doing of the negligent act; or even when the immediate negligence is that of a person who in some sense was the co-servant of the person injured. There are certain duties which concern the safety of the servant which belong to the master to perform, and he cannot rid himself of responsibility to his servant for not performing them by showing that he delegated the performance to another servant, who neglected to follow his instructions or omitted to do the duty intrusted to him. The duties which the master is required to perform are: (a) The master, whether a natural person or a corporation, although not to be held as guaranteeing the absolute safety or perfection of machinery, appliances, or other apparatus provided for the servant, is bound to observe all the care which the exigencies of the situation reasonably require in furnishing instrumentalities adequately safe for use.1 1. Painton v. Railroad Co., 83 N. Y. 7; Kain v. Smith, 25 Hun. (N. Y.) 146; Ryan v. Fowler, 24 N. Y. 410; Warner v. Erie R. Co., 39 N. Y., 468; Booth v. Boston, etc., R. Co., 67 N. Y. 593; Laning v. Railroad Co., 49 N. Y. 521; O'Donnell v. Allegheny R. Co., 59 Pa. St. 239; Philadelphia, etc., R., Co. v. Keenan, 103 Pa. St. 124; Mansfield Coal Co. v. McEnery, 91 Pa. St. 185; Cunningham v. Union Pac. R. Co. (Utah), 7 Pac. Rep. 795: |