Page:Federal Reporter, 1st Series, Volume 9.djvu/360

 O'nEIL V. ST. LOUIS, IRON MOUNTAIN A SOUTHERN EY. CO. 846 �respoiisibility resting upon the defendants, [employera,] which they could not throw off by delegating it to a foreman or to other workmen." ihis has been declared to be the law in a large number of cases. Hough v. Pacific Ry. Co. 100 U. S. 213; Flike v. Boston, etc., R. Co. 53 N. Y, 649; Laning v. iV. Y. Cent. B, Co. 49 N. Y. 521; Ford v. Fitchburg R. Co. 110 Mass. 240; Holden v. Fitchburg, R. Co. 129 Mass. 268; Arkerson y.Sennison, 117 Mass. 407; Brymala v. Thompson, 26 Minn. 40; Wedgwood v. Chicago, etc., R. Co. 41 Wis. 478; S. C. 44 Wis. 44; Shnnny v. Androscoggin Mills, 66 Me. 420; Mullan v. Phil. S. Co. 78 Pa. St. 25; O'Donnell v. Alleghany, etc., R. Co. 59 Pa. St. 239; Chicago, etc., R. Co. v. SweM, 45 III. 197; Lewis y. St. Louis, etc., R. Co. 59 Mo. 495; Kansas, etc., R. Co. v. Little, 19 Kan. 269; Berea Stone Co. v. Kraft, 31 Ohio St. 287. Thus, in Toledo, etc., R. Co. v. Conroy, 68 111. 560, where a servant of the company was injured in conse- quence of the giving way of a wooden bridge, which had become detective through age and exposure to the weather, it was held that the company could not escape liability by showing that the bridge was properly constructed in the flrst place, and that it employed skilful and competent subordinates to inspect and repair its bridges. The same rule applies to the individual em- ployer as well as to corporations, Corcoran v. Uolbrook, 59 N. Y. 517. �But there are authorities which hold that the duty of the master is dis- charged by the employment of competent agents or servants to furnish the machinery and attend to repairs, and that if a servant is injured through the failure of the persons so appointed to make repairs, it is the negligence of a fellow-servant, and the maater is^ not liable. Colurnbus,etc.,R.Co.\. Arnold, 31 Ind. 174 ; Wonder v. Baltimore, etc., R. Co. 32 Md. 411 ; Hanrathy v. North- ern, etc., R. Co. 46 Md. 280; Harrison v. Central R. Co. 31 N. J. L. 293. �CoNTiiiBUTORY NEGLIGENCE OF Pellow-Servant. If the master is himself negligent, and the negligence of a fellow-servant of the injured contributes to the accident, this does not exempt the master from liability; it is oiily the negligence of the injured servant that will have that efEect. Thus, in Paulmier v. Frie R. Co. 34 N. J. L. 151, where the company negligently allowed the erection of an unsafe trestle-work for the track, and gave the engineer in charge orders not to run his engine thereon, but he dis- obeyed, and the plaintifE's intestate, a flreman, who was unaware of tho orders or of the danger, was thereby killed, the trestle-work giving away, the com- pany were held liable. If a servant is injured in part by the negligence of the master and in part by the negligence of a fellow-servant, he may reeover of the master. McMahon v. Heiining, 3 Fed. Eep. 353; Cane v. Delaware, etc., R. Co. 81 N. Y. 206; Booth v. Boston, etc., R. Co. 73 N. Y. 38; Crutchfleld v. Richmond, etc., R. Co. 76 N. C. 320. �Latent Defects in Machinery — Duty of Master to Inform Serv- ant. As before stafced, the master may, if he so chooses, supply unsafe machinery. " Every manufacturer hag. a right to choose the machinery to be used in his business, and to conduct that business in the manner most agreeable to himself, provided he does not thereby violate the law of the land." Sayden v. Smithville Manufg Co. 29 Conn. 548. If the defect or danger is latent, and either known to the master, or of such a character that in the exercise of ordinary care he ought to have knovv'n it, it is the ��� �