particular make. Their character must have been generally known. They were known to be safe if care was used in operating them, but dangerous, like all railroad labor, unless the usual caution was observed. Defendant had the right to presume plaintiff entered its service with knowledge that cars of that description were in daily use upon its road." The court also recognizes the distinction.

between such cars as constructed and their condition of repair, when they say: "A very different question would arise had the injury to plaintiff been produced by a car defective and unfit for service when it was received, or had defendant suffered it, while in its possession, to become unsafe; but that question cannot arise in this case."

The rule has often been applied to cars owned or in general use by a railroad company. In fact, where the cars in use by a railroad company are of different make or construction, to such an extent, at least, as to become apparent to one whose employment requires him to use or couple them, such employé will be presumed to have knowledge thereof, and to assume the attending risk.39

"Hulett v. Railway Co., 67 Mo. 239; Ft. Wayne, J. & S. R. Co. v. Gilders.eeve, 33 Mich. 133; Toledo, W. & W. Ry. Co. v. Ashbury, 84 Ill. 429.

CHAPTER XI.

PROMISE TO REPAIR.

A promise to repair a defect or obviate a danger by the master relieves the servant from the as

sumption of the risk, p. 207.

If repair is not made within a reasonable time after the promise, the servant will be deemed to have waived his objections and assumed the risk, pp. 208, 215.

When such a promise is relied upon, it must appear that the servant was led by it to continue the employment, p. 208.

The doctrine herein discussed as to the character, condition, and safety of appliances does not apply to ordinary implements other than machinery used upon a farm or in ordinary labor, p. 209.

Nor does it apply to defects in ladders, p. 210. A promise to repair will not relieve the servant from an assumption of the risk in all cases. The question still remains whether a prudent workman would take the risk notwithstanding the promise, pp. 211, 215.

A mere objection and protest by the servant is not sufficient. There must also be a promise to remedy the defect, upon which the servant relies, p. 212.

The promise must be that of the master, or of some one representing him, with authority to have the change made, p. 216.

The promise must be definite as to time, p. 217. Performing a hazardous service outside of his em

ployment, for fear of discharge if he refuses, by a servant who comprehends its dangers, will not relieve him from an assumption of the risks, pp. 217, 222.

The duty to give warning when there has been a change in the servant's duties is only applicable when the increased danger arises from causes hidden and secret, and such as would reasonably escape his observation, pp. 218–220. No negligence can can be predicated upon the fact alone that the servant was directed to perform temporary work outside of the service for which he was engaged, pp. 220, 222, 223.

The same presumption, to wit, that a servant is competent to perform the duties and avoid dangers, etc., does not apply in the case of temporary work outside of his employment, as it does in his regular employment, p. 221. Such servant, however, is presumed to know and comprehend obvious dangers, requiring no skill or experience to appreciate, p. 221.

If such service is accepted or duty performed at the request of a fellow servant, or one having no authority from the master over him, the master is not responsible, p. 221.

It is otherwise when the other servant has authority, p. 225.

Knowledge of a defect or of danger may not preclude the servant, when, having the right to abandon the service because it is dangerous, he refrains from doing so in conse

quence of assurances by the master that the danger will be removed. Such assurances remove all ground for holding that the servant, by continuing in the employment, engages to assume the risk.1

In Hough v. Railway Co.2 it was said by Justice Harlan: "There can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept. If, however, the servant, after giving notice of the defect, and after promise of repair by the employer, still continues in the employment an unreasonable time after the employer could remove the defect, he would then be deemed to have waived his objections, and assumed the risk of the premises or of the machinery in the unsafe and dangerous condition in which it was." 3

It must appear that the servant was led to continue the employment by the master's promise that the defect com

'Stephenson v. Duncan, 73 Wis. 407, 41 N. W. 337; Union Manuf'g Co. v. Morrissey, 40 Ohio St. 150; Laning v. Railroad Co., 49 N. Y. 521; Patterson v. Railroad Co., 76 Pa. St. 389; Conroy v. Vulcan Iron Works, 62 Mo. 35; Greenleaf v. Railway Co., 33 Iowa, 52; Kroy v. Railway Co., 32 Iowa, 357; Le Clair v. Railroad Co., 20 Minn. 9 (Gil. 1); Greene v. Railway Co., 31 Minn. 248, 17 N. W. 378; Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56; Indianapolis & St. L. Ry. Co. v. Watson, 114 Ind. 20, 14 N. E. 721, and 15 N. E. 824; Corcoran v. Milwaukee Gaslight Co., 81 Wis. 194, 51 N. W. 328; Lyttle v. Railway Co., 84 Mich. 289, 47 N. W. 571; Hough v. Railway Co., 100 U. S. 213.

100 U. S. 213.

'Stephenson v. Duncan, 73 Wis. 407, 41 N. W. 337; Davis v. Graham, 2 Colo. App. 210, 29 Pac. 1007.

plained of should be removed. Where the servant does not complain upon his own account, and continues in the employment with full knowledge of the risk, he cannot recover of the master because the latter, when the defective condition is called to his attention by the servant, gives assurances, which do not induce the servant to remain, that the defect should be remedied. And ordinarily, whether the servant had waived the neglect of the master, and assumed the risk after promise of repair, is a question for the jury.5 Yet it may have been given for such a length of time, or with such conditions, that the court can determine, as matter of law, that its performance has been waived.®

In cases where persons are employed in the performance of ordinary labor, in which no machinery is used and no materials furnished, the use of which requires the exercise of great skill and care, it can scarcely be claimed that a defective instrument or tool furnished by the master, of which the employé has full knowledge and comprehension, can be regarded as making out a case of liability. A common laborer who uses agricultural implements while at work upon a farm or in a garden, or one who is employed in any service not requiring great skill or judgment, and who uses the ordinary tools employed in such work, to which he is accustomed, and in regard to which he has perfect knowledge, can hardly be said to have a claim against his employer for negligence if, in using a utensil

Lewis v. Railway Co., 153 Mass. 76, 26 N. E. 431.

8 Laning v. Railroad Co., 49 N. Y. 521; Stephenson v. Duncan, 73 Wis. 407, 41 N. W. 337; Union Manuf'g Co. v. Morrissey, 40 Ohio St. 150; Hawley v. Railway Co., 82 N. Y. 370; Missouri Furnace Co. v. Abend, 107 Ill. 44; Patterson v. Railroad Co., 76 Pa. St. 389; Hough v. Railway Co., 100 U. S. 213.

Stephenson v. Duncan, 73 Wis. 407, 41 N. W. 337; Lewis v. Railway Co., 153 Mass. 76, 26 N. E. 431.

MAST AND SERV.-14