The doctrine of waiver is sought to be applied; yet this is but another instance where a very just and equitable principle is misapplied. There is great danger, not only in cases of negligence, but those involving other questions,

in removing a wreck, rode on the engine, contrary to rule forbidding it. Abend v. Terre Haute & I. R. Co., 111 III. 202.

Where a car repairer fails to place a blue flag on the car under which he is working, as required by a rule. Quick v. Indianapolis

& St. L. Ry. Co., 130 Ill. 334, 22 N. E. 709.

Deeds

Where defendant had in force a rule that brakemen, in coupling cars, must know that their signals are understood and obeyed before they place themselves in a position of danger, relying on such obedience. When they act without such knowledge, they assume all risk of danger arising from disobedience of the signal. v. Chicago, R. I. & P. Ry. Co., 74 Iowa, 154, 37 N. W. 124. Where the company had given employé a printed rule that each employé before exposing himself to danger must examine all machinery, cars, etc., satisfying himself they are safe, and that he should take sufficient time for such examination, and should refuse to obey orders exposing himself to danger, and such employé attempted to make a coupling, when he knew the apparatus was defective. Karrer v. Detroit, G. H. & M. Ry. Co., 76 Mich. 400, 43 N. W. 370.

Where a rule required a danger signal, applicable alike to the employé and his superior, when such employé was at work under a car, the neglect of the superior to obey the rule did not excuse the subordinate. Central Railroad & Banking Co. v. Kitchens, 83 Ga. 83, 9 S. E. 827.

Failure to use coupling sticks when provided. New Jersey & N. Y. R. Co. v. Young, 1 U. S. App. 96, 1 C. C. A. 428, and 49 Fed. 723; Norfolk & W. R. Co. v. Briggs (Va.) 14 S. E. 753; Russell v. Railway Co., 47 Fed. 204; Rome & C. Const. Co. v. Dempsey, 86 Ga. 499, 12 S. E. 882; Darracott v. Railroad Co., 83 Va. 288, 2 S. E. 511.

Switchman violating positive rule in regard to jumping on moving engine. Francis v. Railway Co., 110 Mo. 387, 19 S. W. 935; Darracott v. Railroad Co., 83 Va. 288, 2 S. E. 511.

Employé, in violation of rule, who uses for his own convenience

of carrying this doctrine far beyond its legitimate application. It seems in many cases to have been a convenient pretext upon which to excuse culpable negligence, a fair illustration of which is found in the judgment of the lower court in Berrigan v. New York, L. E. & W. R. Co., supra.

an elevator, and falls down the shaft. Guenther v. Lockhart, 61 Hun, 624, 16 N. Y. Supp. 717.

Where the defendant posted notices of warning or danger near where track was being repaired, duty of engineer to see and read it. Williams v. Railroad Co. (Va.) 15 S. E. 522.

Brakeman undertaking to make coupling on moving train, though ordered so to do by the engineer. East Tennessee, V. & G. Ry. Co. v. Smith, 89 Tenn. 114, 14 S. W. 1077.

The mere fact that other employés disregarded a rule regarding coupling cars with a stick will not justify the plaintiff in so doing, or excuse him in making a coupling by hand, unless defendant had acquiesced in the violation of the rule in such a way as practically to abrogate it. Sloan v. Georgia Pac. Ry. Co., 86 Ga. 15, 12 S. E. 179.

Where uncoupling cars is attempted while cars are in motion. Schaub v. Hannibal & St. J. R. Co., 106 Mo. 74, 16 S. W. 924.

Though customary for rear brakemen to ride inside rear car, if rules provide for his being at brakes while cars are in motion. Gordy v. New York, P. & N. R. Co., 75 Md. 297, 23 Atl. 607. Contra, Georgia Pac. Ry. Co. v. Davis, 92 Ala. 300, 9 South. 252. Where employé knowingly disobeys a rule established for his safety, unless he acted under influence of fear produced by sudden danger. Gulf, W. T. & P. Ry. Co. v. Ryan, 69 Tex. 665, 7 S. W. 83; Lyon v. Railway Co., 31 Mich. 429; Shanny v. Androscoggin Mills, 66 Me. 429; Memphis & C. R. Co. v. Thomas, 51 Miss. 637; Georgia R. Co. v. Rhodes, 56 Ga. 645.

Where employé, though a minor, voluntarily assists in making a flying switch. Youll v. Railway Co., 66 Iowa, 346, 23 N. W. 736.

A conductor cannot, in violation of a known rule of the company intended for the safety of passengers, license a passenger (an employé riding upon the train considered as such) to occupy a place of danger so as to make the company responsible for the injury. Pennsylvania Ry. Co. v. Langdon, 92 Pa. St. 21.

It is generally said that the master will be deemed to have waived a rule promulgated for the servant's own safety, where he knows it is generally or habitually violated. Suppose it may be so considered. The effect, reasonably, could only extend to a waiver of any liability on the part of the servant to the master for injury to the person or property of the master. The servant is informed, by the existence of the rule, that the master has made adequate provision for his safety. The servant is presumed to know for such is the law-that, where both are on an equal footing, the master is under no greater obligation to care for the safety of the servant than the servant is to look out for his own safety. They have equal knowledge. The servant has at his option two methods of doing his work,-the one perilous, the other reasonably safe, considering the hazards of the employment. How can it be said, if he adopt the more perilous, and he is thereby injured, that it is aught else than his own fault? These remarks have special application to the custom among employés of jumping on and off moving trains, and the dangerous method they voluntarily assume in coupling and uncoupling cars.

CHAPTER VI.

MASTER'S DUTY (Continued)-INSPECTION.

Not required to specially test appliances purchased from reputable manufacturers or dealers, p. 94. Such reasonable care in selecting and ordering as every prudent man would exercise, is all that can be required, p. 94.

The supreme court of Michigan applied a more stringent rule, p. 95.

The Michigan rule considered extreme, and not generally accepted, p. 96.

The subject ably discussed in an opinion by one of the judges of the court of appeals of New York, p. 98.

The general duty of the master as to appliances in use is to apply all reasonable and usual tests, p. 100.

He must inspect and look after the condition of his appliances, and see that they are kept in repair, p. 101.

His vigilance in this respect must be proportioned to the danger he may know or anticipate, p. 101. His duty in respect to foreign cars, pp. 103, 105, 107. Liability of the company from which the car was received, p. 107.

The master may be charged with knowledge of a defect, simply from a lack of or improper inspection, p. 107.

This result follows when reasonable inspection would have discovered the defect, p. 107.

If the defect has existed for a length of time, knowledge may be presumed from this fact alone, p. 108.

Duty as to premises and ways the same as duty in regard to appliances, p. 108.

We have seen that the master's duty is to exercise ordinary care in furnishing and maintaining his machinery, appliances, and ways or premises in a reasonably safe condition. The general principles of ordinary care have been discussed and stated. It remains to discuss and determine further what particular or specific duties rest upon the master to meet the requirements of his duty in this respect. Many appliances, including engines, cars, rails, and machinery, are purchased by the employer, who, as a rule, has not equal means and facilities for testing or determining their strength, or ascertaining their defects, if any, with those who manufacture such appliances or specially deal in them. They are purchased from responsible dealers; oftentimes from the manufacturers themselves, who make a specialty of such appliances. What examination or inspection in such cases, if any, devolves upon the master? Must he, or those who represent him in the purchase, critically inspect all parts of such appliances, and each rail or article, so purchased, or may he rely upon the repute of the makers or dealers, and assume that they have furnished a reasonably fit, suitable, and safe machine, article, or appliance, where no defects are obvious upon their mere inspection?

It is stated by Judge Cooley in his work on Torts that "the law does not require the master to guaranty the prudence, skill, or fidelity of those from whom he obtains his tools or machinery, or the strength or fitness of the

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