the prosecution of the business, those who maintain them in a condition to be used, and those who adapt them to use by new appliances and adaptations incidental to their use, are fellow servants, in the general employment and business. One employed in the care, supervision, and keeping in ordinary repair of the means and appliances used in the business is engaged in the common service. Thus, a person charged with the duty of keeping the track of a railroad company in repair; 25 the chief engineer of a vessel whose duty it was to see the machinery was kept in order.20 They quote the language of Fletcher, J., in King v. Boston & W. R. Co.: 27 "If a corporation itself should be held responsible to its servants, that the road, when first used, was safe and sufficient, yet keeping the road in proper repair afterwards would seem to be the work of servants or laborers, as much as any other part of the business of the corporation."

The mere exercise of due and reasonable care on the part of the master in selecting such agents as are clothed with the powers and duty of the master will not excuse him for their carelessness or failure of duty. The duty being that of the principals, and theirs the contract, it is theirs to fulfil and perform; and if this duty is not done, or insufficiently done, the failure to do is theirs.28

I have at some length thus quoted from opinions of the courts upon this important question, for the purpose of placing before the reader the reasoning upon which the rule or principle is based. Ofttimes the reason is far more important than the mere result in a given case. The ques

tion of who are and who are not fellow servants, in many

25 Citing Waller v. Railway Co., 2 Hurl. & C. 102.

"Citing Searle v. Lindsay, 11 C. B. (N. S.) 429, and other cases. 79 Cush. 112.

* Laning v. Railway Co., 49 N. Y. 521.

cases, is made to depend upon the rule of delegation of authority, and therefore the reader will find in subsequent chapters devoted to a discussion of the question of fellow servants more particularly what the rule is in each state as to the doctrine of delegation of authority.

CHAPTER IX.

ASSUMED RISKS-MASTER'S DUTIES AND METHODS.

The master may conduct his business in his own way, although another method might be less hazardous, p. 145.

The servant assumes the risk of the more hazardous method, if he knows the danger attending it, p. 145.

When the servant is not chargeable with such knowledge, he may assume and such is the contract that the only dangers and hazards to which he will be subjected are such as are ordinarily and naturally incident to the service which he is to perform, p. 150.

In most cases the real question to be determined is the fact of the servant's knowledge, either actual or presumed, of the dangers, p. 155. To ascertain when knowledge may be presumed involves an inquiry as to the servant's duties, p. 157.

The servant, upon entering the service, should ascertain what he is expected to do, p. 158. He must exercise care to avoid injury to himself, p. 159.

He must take ordinary care to learn the dangers that are likely to beset him in the service, p. 160. He must improve every opportunity to do this, exercising reasonable care in examining his surroundings, p. 161.

He must observe and take cognizance of such dangers as can be appreciated by observation, p. 162. He is bound to take notice of the operation of familiar laws, and govern himself accordingly, p. 163. .

He is bound to use his eyes; and if the defect is obvious or suggestive of danger, knowledge will be presumed, p. 164.

The duty of the master, in such case, is not to see that the servant actually knows, p. 166.

The master's duty is met when he constructs and

maintains his appliances in such manner that they are reasonably safe when prudently used, p. 167.

The degree of care on the part of the servant is that which prudent men under similar circumstances would exercise, p. 168.

Negligence in a servant may consist in failing to know, p. 168.

A workman using appliances must exercise proper care to keep them in order, p. 169.

He must see that repairs are made, if that is within his duties; if not, report their condition, p. 169. Servant using machinery he knows to be defective is bound to use special precautions, p. 169. If he adopts the more dangerous method of doing his work, because it is convenient, the risk is his, p. 169.

He will be charged with knowledge of defects which are obvious, or which by proper diligence he might discover, in instruments he is frequently using, p. 169.

This is only true when he understands the risk to which he is thus exposed, p. 170.

The same rule applies to the master, who is not liable for injuries caused by known defects, unless he knew, or ought to have known, them to be dangerous, p. 170.

The rule is that a servant assumes the hazards of dangerous methods, as well as the use of defective tools or machinery, when after employment he learns of the defect, but voluntarily continues in the employment without objection, p. 170.

He assumes the risks from causes open and obvious, the dangerous character of which he had an opportunity to ascertain, p. 171.

This is true, even though at the time of injury he was in the performance of duties he did not contract to render, if the dangers were such that it required no special skill or training to foresee them, p. 171.

Perils of the employment include such as it is a part of the servant's duty to take knowledge of by observation, p. 172.

Some courts make an exception to the foregoing rule, holding that the servant only assumes such risks as he knows the precise danger of, p. 172. The rule and the exception illustrated by decisions, p. 173.

Conclusion from the decisions, p. 179.

The relations of the parties rest in contract, imposing mutual obligations, regulated by legal principles and presumptions; these are stated, p. 180.