Page:Federal Reporter, 1st Series, Volume 9.djvu/357

 342 PEDEEAL BBPOBTBR. �responsibility of one person to another, for the consequence of personal negli- gence, is not lessened by.the existence of the relation of m aster and servant, Said McCrary, 0. J., in the late case of MoMahon v. Henning, 3 Fed. Rep. 353, arising upon facts like those of the principiil case: " The true doctrine of the common law is that the master is liable to his servants, as much as to any one else, for the consequences of his own negligence; aud it is no defeaee for Mm to show that the negligence of a fellow-servant contributed to bringing about the injury." Such personal negligence of the master may conslst, either in the failure to employ fit and competent servants, or to fumish suitable and safe machinery, structures, appliances, and materials for their use. �Masteh's Duty in Selection of Machinery. In the selection of ma- chinery, etc., it is the duty of the master to use reasonable or ordiuary care, and this care he must exercise, both In procurlng and maintaining sound and safe structures and appliances. If be knows, or in the exercise of due care might have known, that they are unsafe or insufhcient, either at the time of procurlng them or at any subsequent time, he fails in his duty. Qilman v. Eastern R. Co. 13 Allen, 440; Bartomhill Coal Co. y. Reid, 3 Macq. 266; Noyes v. Smith, 28 Vt. 59; Sullivan v. Louisville Bridge Co. 9 Bush. 81; Kansas, etc., R. Co. v. Little, 19 Kan. 269; Lewis v. St. Louii, etc., R. Co. 59 Mo. 495; Mad River R. Co. v. Barber, 5 Ohio St. 541. The master is equally chargeable, whether the negligence was in originally failing to provide or in afterwards failing to keep the machinery in safe condition. Foi'd V. Fitohburg R. Co. 110 Mass. 240; Shanny v. Androseoggtn Mills, 66 Me. 420; O'Donnell v. Allegheny, etc., R. Co. 69 Pa. St. 239; Chicago, etc., R. Co. V. Swett, 45 111. 197; Cooper v. Central, etc., R. Co. 44 lowa, 134. �"ORDiNAnY Cabe" — Warbanty of Soundness — Best and Safest Machinery. What will be ordinary care depends on the nature of tho business, its extent, degree of hazard involved, and all the circumstances of the case. Said Thomas, J., in Cayzer v. Taylor, 10 Gray, at page 280: " What is ordinary care cannot be determined abstractly. It bas relation to and must be measured by the work or thing done, and the instrumentali- ties used, and their capacity for evil as well as good. What would be ordi- nary care in one case may be gross negligence in anotlier. We look to the work, its difflculties, dangers, and responsibilities, and then say, what would and should a reasonable and pradent man do in such an exigency?" �The law does not exact from the master the exercise of the highest degree of diligence in supplying safe machinery for the use of the servant; ordinary care is sufficient. Cooper v. Central, etc., R. Co. 44 lowa, 134; Nolan v. Shickle, 3 Mo. App. at page 307 ; Paterson v. Wallaae, 1 Macq. 748 ; Rolden V. Fitchhurg R. Co. 129 Mass. at page 277. But see Toledo, etc., R. Co. v. Conroy, 68 111. 560, holding a railroad corporation bound to exercise the high- est degreee of care in the construction of its road and bridges, and that ordi- nary pradence in such case was not sufficient. �There is no implied warranty in the contract of service that the machinery or materials furnished shall be sound or lit for service, nor that the servant shall not be exposed to extraordinary risks. Heyer v. Salsbury, 7 Bradw. (111. App.) 93. The master does not guarantee the soundness of the machinery, nor insure the servant against accidents, and if the latter suffers injury from latent ��� �