§31] NEGLIGENCE OF MASTER AND SERVANT COMBINED. 85

employ of a railway corporation may maintain an action against the corporation for personal injuries occasioned, while in the exercise of due care, by the fall of a trestle work supporting a portion of a spur track, which was intended for use for an indefinite period of time, if the fall is caused partly by the defective construction of the trestle work, and partly by negligence of the fellow servants of the plaintiff.1 And where a brakeman upon a freight train was in the caboose car of the train, when, seeing that a collision was imminent between it and another train following, he stepped out of the front door of the car onto the platform of the next car. The cars were furnished with buffers, but they so overlapped each other that they were useless, and, in consequence, when the trains collided, the brakeman was caught between the ends of the two cars and killed. It was held that a dismissal of the complaint was error; that it was a duty the defendants owed its employes to provide cars with buffers appropriately placed.2

Plaintiff was injured by an edger in defendant's saw mill, which by reason of its defects, was unnecessarily dangerous. Held, that defendant was not relieved from liability by the fact that the feeder of the edger was negligent in managing it, as his negligence simply contributed to the injury. Sherman v. Menomonece R. L. Co. (Wis.), 39 N. W. Rep. 365. But, in an action for the death of defendant's servant, in which defendant alleges that the injury was the result of the negligence of a coservant, an instruction that if the co-servant and the defendant were both negligent, defendant is liable, is erroneous, as leading the jury to believe that defendant in such case would be liable, though the accident would have occurred without its negligence.-Hall v. Cooperstown & S. V. R. Co., 3 N. Y. Sup. 584.

1. Elmer v. Locke, 135 Mass. 575. 2. Ellis v. New York, etc., R. Co., 95 N. Y. 546; s. c., 17 Am. & Eng. R. R. Cas. 641.

Where machinery is held together by two clamps, which are improper appliances and make the use of the machinery dangerous, and one of these clamps breaks, and the engineer continues to run the machinery with but one clamp, which renders the use of the machinery more dangerous, and this afterwards breaks and injures a workman engaged in the same general business, the employer is not responsible; for the proximate cause of the injury was the carelessness of the engineer, who was a fellow servant of the injured man, in running his engine when it was dangerous. Philadelphia Iron & S. Co. v. Davis, 111 Pa. St. 597.

But, although the machinery is defective, so that otherwise a recovery might be had for an injury received, yet if the promoting cause of the injury is the negligence of a fellow-servant, no recovery can be had.1 Thus, a switch

man employed in the yard of a railroad company was injured, while making a coupling, by the engine used for switching being backed down upon him without warning and catching his hand between a freight car and the "goose-neck" coupling iron projecting from the rear end of the engine. The engine was not a regular switch-engine (which does not have the "goose-neck" projection, and is so constructed that the view therefrom backward is unobstructed), but was a common passenger engine. It had, however, been used by the switchman for sixteen days, was of the kind generally used in small yards, and was safe for switching purposes if used with proper It was held that the negligence of those in charge of the engine, and not any insufficiency or unfitness in the engine itself, was the proximate cause of the injury, and that the company was therefore not liable.2 And in another cases a locomotive which had helped a west-bound freight, was run upon the main track a little east of the

care.

1. Wood M. & S. (2d Ed.) § 426; Memphis, etc.,R. Co. v. Thomas, 51 Miss. 637; Gilman v. Eastern R. Co., Io Allen (Mass.), 233; King v. Boston, etc., R. Co., 9 Cush. (Mass.), 112; Hayes v. Western R. Co., 3 Cush. (Mass.) 270; New Orleans, etc., R. Co. v. Hughes, 49 Miss. 258.

2. Fowler v. Chicago & N. W. R. Co., 61 Wis. 159; s. c., 17 Am. & Eng. R. R. Cas. 536.

3. Whittaker v. Delaware, etc., Co., 3 N. Y. Sup. 576. In another case decided about the same time by the Supreme Court of Wisconsin, the chains connecting the lever with the draw-bar were frequently bro

ken, so that it was necessary for the brakeman to go beneath the platform to uncouple the cars. While the brakeman was so engaged, the conductor, not knowing his position, signalled the engineer to go ahead, and the train in starting, injured the brakeman so that death ensued. Held, that the negligence of the conductor in starting the train, and not the failure to have the chains repaired so that the cars could be uncoupled with the lever, was the proximate cause of the injury. Pease v. Chicago & N. W. R. Co., 61 Wis. 163; s. c., 17 Am. & Eng. R. R. Cas. 527.

station, and left, while the engineer went to the station for orders, fronting to the west, with a light on its rear, but with no headlight; that having been broken the previous day. An east-bound freight collided with it, and the fireman of the east-bound freight was killed. The engine was on the track in violation of a rule of the company, that no irregular engine should be allowed on the main track without special orders, and the approaching train was passing the station at a higher rate of speed than the company's rules permitted. The General Term of the New York Supreme Court held that the company was not liable unless the accident would not have happened but for the absence of the headlight, and it was error to charge that it was liable if its negligence contributed to the injury, though deceased's co-employes were also negligent, provided deceased was guilty of no contributory negligence.

$ 32. Duty to keep Machinery and Appliances in Repair.—

We have seen that it is the duty of the master to make reasonable efforts to keep machinery and appliances in a safe and serviceable condition.1 This is one of the duties which the master as such is bound to perform, and cannot be delegated so as to exonerate the former for liability to a servant, who is injured by the omission to perform the act or duty, or by its negligent performance, whether the non-feasance or mis-feasance is that of a superior officer, agent or servant, or of a subordinate or inferior agent or servant to whom the doing of the act or the performance of the duty has been committed. In either case in respect to such act or duty, the servant who undertakes or omits to perform it, is the representative of the master, and not a mere co-servant with the one who sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant, whose negligence

1. See § 24.

caused the injury, or of the fact whether it was or was not practicable for the master to act personally, or whether he did not do all that he personally could do, by selecting competent servants, or otherwise, to secure the safety of his employes.1

§ 33. Same.-Illustrations and Application of the Rule.

Under the rule stated in the previous section it has been held that the machinists of a railroad company, who are employed to manufacture and repair its engines, are

not to be considered co-employes of engineers employed to run those engines.1 Also, that if a railroad corporation suffers a derrick, not actually in use for the purposes of its business, to remain for an unreasonable length of time, on land within its control, in such a position by the side of its track as to be in danger of being thrown down by ordinary natural causes so as to interfere with the safe passage of its trains, the corporation is liable to a brakeman for injuries resulting from its own neglect in not removing the derrick, or in not guarding against the danger of allowing it to remain, even if it was put up by other servants of the corporation, and independently of the question of their negligence.2 That if one appointed by a railway company to look after the condition of its cars and see that the machinery and appliances used to move and to stop them are kept in repair and in good working order, and injuries result from his negligence in its performance, the company is liable. That where a manufacturing company employed a competent superintendent to keep the machinery in repair and in good order, and another employe is injured by reason of the superintendent's negligence in that regard, the master is liable. 4

In Ford v. Fitchburg R. Co. a fireman was injured by reason of a defect in an engine which was due to the neglect of the employes of the company charged with the duty of keeping the engine in repair, although the company had no reason to suspect reason to suspect negligence or incompetency on the part of such employes, and it was held that the company was liable.

1. Fuller v. Jewett, 80 N. Y. 46; s. c., I Am. & Eng. R. R. Cas. 109.

2. Holden v. Fitchburg R. Co., 129 Mass. 268; s. c., 2 Am. & Eng. R. R. Cas. 94.

3. Northern Pac. R. Co. v. Herbert, 116 U. S. 642; s. c., 24 Am. &

In Brann v. Chicago, etc.,

Eng. R. R. Cas. 407.

4. Gunter v. Graniteville M'f'g Co., 18 S. Car. 262; s. c., 44 Am. Rep. 573.

5. 110 Mass. 240; s. c., 14 Am. Rep. 598.