Page:Federal Reporter, 1st Series, Volume 9.djvu/361

 346 FEDERAL REPORTER. �duty of the master to inform the servant of its existence. He must eitlier use machiuery free from latent dangers, or inform his servant o£ the exist- ence of such as he eitlier knows or ought to know. Smith v. Oxford Iron Co. 42 GST; J. L. 467 ; Sowden v. Idaho Mining Uo. 55 Cal. 443 ; Wedgwood v. Chicago, etc., K. Co. 41 AVis. 478; S. G. 44 Wis. 44; Cummings v. Collins, 61 Mo. 520; Gibson y. Pacific R. Co. 46 Mo. 163; Fairbank \. Haentzohe, 73 111. 237; Paulmier v. Erie Ry. Co. 34 N. J. L. 151; Walsh v. Peet Valve Co. 110 Mass. 23; Spelinan v. Fisher Iron Co. 56 Barb. 151. �In Smith v. Oxford Iron Co., supra, the defendant Company introduced into use in its mine a new blasting powder known by its president to.be a mueh more dangerous explosive than the powder before in use. It was held that it was the duty of the company to have informed the plaintiff, a miner, of the danger, and of the proper manner of using the powder; and, not having done so, it was liable to him for injuries sustained while using it. But while the master must use ordinary care to provide reasonably safe and fit appliances and structures for the use of the servant, yet he is not bound to provide against the danger arising from the unnecessary use of such appliances and structures for purposes to which the same are not adapted and designed, Chicago, etc., R. Co. v. Ahend, 7 Bradw. (111.) 180; Felch v. Allen, 98 Mass. 572; Durgin v. Munson, 9 Allen, 396. �B.IGHT OF Master to Contbaot with Servant for Exemption from XiABiLiTY. The question of the right of the masterj by an express stipulation in the contract of hiring, to exempt himself from all liability to his servants for the consequences of failure to perform his diity of supplying sound machin- ery and competent servants, is not settled by the authorities. It would seem, however, that the same public policy that will not allow a comraon carrier to contract for exemption from the conseqxiences of his negligence, would forbid such contracts between master and servant, especially when their iuequality of position is considered. Said Crompton, J., in Clarke v. Holmes, 7 H. & N. 937: " It cannot be made part of the contract that the master shall not be lia- ble for his own negligence." And in Harrison v. Central R. Co. 31 if. J. L. 293, the court say : " The elaim to such exemption is iuconsistent with moral- ity and public policy ; so much so, indeed, that it might be somewhat question- able whether, if such contract existed in point of fact, and by express stipu- lation, it would not be on that account void." �There are but two cases that have come to oin- notice in which this ques- tion has been decided: In Western & Atlantic R. Co. v. Bishop, 50 Ga. 465, it was held that such a contract was valid, although it may be noticed that it was not necessary to the decision, the plaintiff having been guilty of contrib- utory negligence; and the court furtlier express the opinion that the employer would be liable for utter recklessness or gross negligence, notwithstanding such contract. In a recent case decided in the United States circuit court for the district of Indiana, (Roesner v. Herfnann, 8 Fed. Eep. 782,) Gresham, D. J., delivered an oral opinion holding that a contract between employer and employe, whereby the employe, in consideration of the employment, agrees to release and discharge his employer from all damages on account of accident or death to the employe caused by the negligence of his employer or co-em- ployes, is void as against public policy. W. E. Benjamin. ��� �