assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods, or of any part thereof, by the negligence or misconduct of, or for any breach of duty, on the part of the owner, master, or crew of the ship," unless any owner or part owner is domiciled in England or Wales at the time of the institution of the suit. It has been held that under this section the assignee of a bill of lading may sue the shipowner for the negligent stowage of goods, (e) although the property in the goods may not have passed to him. (f) Such assignee may also, under the above section, institute civil proceedings against the ship in the Court of Admiralty for the master's misfeasance in cutting down and destroying parts of the ship, and ultimately abandoning her, by which the delivery of the cargo to the assignee was delayed and rendered more expensive. (g)

563. Negligent navigation causing personal injury—Damage to sea-walls, &c.-The 7th section of the 24 Vict. c. 10, enacts that the "Court of Admiralty shall have jurisdiction over any claim for damage done by any ship." Under this section it has been held that a dock company may sue a ship for injury done through negligent navigation to a breakwater; (h) and that a diver who has sustained injury from a similar cause, may also sue the ship which caused it. (i) If a ship, through the negligent navigation of the master, runs aground, and is then driven on to a sea wall by the force of the wind or tide, the shipowner will be responsible for the damage done to the wall. In the absence of negligence, however, the shipowner has a reasonable time for the recovery of valuable property contained in the ship, and, as between him and the proprietor of the wall, is not bound to break up the ship immediately. (4) 564. Negligence of masters causing injury to their servants. -Every workman who engages in a dangerous employment

(e) The Figlia Maggiore, L. R., 2 Adm. & Eccl. 106. See The Freedom, L. R., 2 Adm. & Eccl. 346; 3 P. C. Ca. 594. (f) The Nepoter, L. R., 2 Adm. & Eccl. 375.

(g) The Princess Royal, L. R., 3 Adin. & Eccl. 41. Semble, also, although the conduct of the master amounted to a criminal offense, and no criminal proceedings had been taken against him. S. C.

(h) The Uhla, L. R., 1 Adm. & Eccl. 29, n.

(2) The Sylph, L. R., 2 Adm. & Eccl. 24. But this case can hardly be considered law since the decision in Smith v. Brown.

(4) The Bailiffs of Romney Marsh v. Trinity House, L. R., 5 Exch. 204. This case was affirmed on appeal, L. R. 7 Exch. 247. See The George and Richard, L. R., Adm. & Eccl. 466.

takes it, as we have seen, with all its ordinary risks. The master is bound to provide for the safety of his servant in the course of his employment, to the best of his judgment; (7)1 but the law does not impose upon the master the obligation of taking more care of the servant than he may be reasonably expected to take of himself. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, he is just as likely to be acquainted with the probability and extent of it as the master. The master, therefore, is not responsible for injuries sustained by his servant through the viciousness of the horse which the servant is employed to groom, or through the breaking down of a van or carriage in which the servant is directed by the master to ride or drive, or from the employer's keeping an insufficient staff of servants for the performance of the work he has to do, (m) or through the use of dangerous machinery, with the use of which the servant is, or professes to be acquainted, and which he has voluntarily undertaken to use, (2) or for the dangers attendant upon the mounting of scaffolds, or unfinished staircases and landings, which the workman has volunta(1) Paterson v. Wallace, 1 Macq. 751.

(2) Dynen v. Leach, 36 Law J., Exch. (m) Skipp v. East Co. Rail. Co., 9 221. Exch, 223.

It is the master's duty to exercise reasonable care in the selection of servants; Chicago, &c. R. R. Co. v. Harvey, 28 Ind. 28; Thayer v. St. Louis Co., 22 Id. 26; Faulkner v. Erie R. R. Co., 49 Baib. (N. Y.) 324; Curley v. Harris, 11 Allen (Mass.) 112; Gilman v. Eastern R. R. Co., 10 Id. 233; Ill. Cent. R. R. Co. v. Jewett, 46 Ill. 99. Sizer v. Syracuse, 7 Lans. (N. Y.) 67; Brothers v. Carter, 52 Mo. 372; Haskins v. N. Y. & H. R. R. Co., 65 Barb. (N. Y.) 129; and a failure in this respect, will render him liable for injuries received by other of his employes by reason of such negligence on his part; Sizer v. Syracuse, ante; Brothers v. Carter, ante; unless the servant injured knew of the incompetency of such fellow-servant, and remained in his master's employ after such knowledge. Haskins v. N. Y. & H. R. R. Co., ante.

So a master is bound to furnish safe machinery, materials, and appliances, for the prosecution of his business, so far as reasonable care and skill can ascertain their fitness, and is liable for any injury which results to a servant by reason of its defectiveness or unfitness, if the same could have been ascertained by reasonable examination. Noyes v. Smith, 28 Vt. 59; Buzzell v. Laconia Mfg. Co., 48 Me. 113; Ryan v. Fowler, 24 N. Y. 410; Chicago, &c. R. R. Co. v. Swett, 45 Ill. 197; Keegan v Westn. R. R. Co., 8 N. Y. 175; Connolly v. Poillon, 41 Barb. (N. Y.) 366; Durgin v. Munson, 9 Allen (Mass.) 396.

rily undertaken to mount with as much knowledge of the attendant risk as the person who employs him. (0) 1

Where the master's coach broke down through the negli gence of a coach-maker who had contracted with the master to furnish the latter with sound roadworthy coaches, and repair them, and keep them in good working order, and the coachman was mutilated and maimed for life, it was held that he had no remedy for the injury. The law does not permit him to recover damages from his own master and employer. Neither can he sue the coach-maker whose negligence occasioned the injury. "It is no doubt a hardship upon the plaintiff," observes Rolfe, B., " to be without a remedy, but by that consideration we ought not to be influenced." (p) "There would be no end of actions if we were to hold that a person having once done a piece of work carelessly, should, independently of honesty of purpose" (or contract), "be fixed with liability in this way by reason of bad materials or insufficient fastening." (4)

The master is bound to protect his servant from latent dangers on the master's premises, known to the latter and not known to the servant. If a man employs ignorant, inexperienced workmen in dangerous employments, and exposes them improperly to risks of which he is cognizant, and which are not known to the ignorant workman, he will be liable for the consequences of his misconduct. (r) For personal negligence of the master, whereby injury is occasioned to the servant, the

(0) Assop v. Yates, 2 H. & N. 770; 27
Law J., Exch. 156. Griffin v. Gidlow,
Ib. 404.
Potts v. Plunkett, 9 Ir. C. L.
R. 295.

(P) Winterbottom v. Wright, 10 M. & W. 115. Priestly v. Fowler, 3 M. & W. 6. Riley v. Baxendale, 6 H. & N. 455; 30 Law J., Exch. 87. Potts v. Port

Carlisle, &c., R. Co., 2 Law T. R., N.
S. 283.

(2) Per Willes, J., Collis v. Selden, L. R., 3 C. P. 498.

(r) Bartonshill Coal Co. v. Reid, 3 Macq 295. Mellors v. Shaw, 30 Law J., C. P. 333. Weems v. Matthieson, 4 Macq. H. L. C. 215. Farrant v. Barnes, 31 Law J., C. P. 139.

For all the ordinary risks incident to the business, the servant takes the risk, and can not recover except where the injury is attributable to some fault or negligence on the part of his employer. O'Donnell v. Alleghany Valley R. R. Co., 59 Penn. St. 239. The rule is, that one who goes into the employ of another, takes upon himself all the usual risks incident to the employment, but, if there exist any facts known to the employer that renders the employment unusually hazardous, he is bound to disclose the fact, and, if he fails to do so, and by reason of such unusual hazard the servant is injured, he is chargeable with negligence and responsibility for the injury. Strahlendorf v. Rosenthal, 30 Wis. 674 ; Sizer v. Syracuse, 7 Lans. (N. Y.) 67; Haskins v. N. Y. & Hud. R. R. R. Co., 65 Barb. (N. Y.) 129.

master will be liable (s) And where rules are framed by employers for the purpose of regulating the management and exercise of a dangerous employment, and these rules are carelessly or improperly framed, so as to cause dangers and risks, which might be guarded against and prevented by proper rules carefully prepared, the employers will be responsible for the consequences of their negligence. (t) Where statutory regulations exist for the management of a colliery, (u) and securing the safety of the workmen, and these rules are culpably neglected with the knowledge of the owner of the mine, the latter will be responsible for the consequences of his neglect of duty, unless the person injured has brought the mischief upon himself by his own negligence. () And in a case where machinery is required by Act of Parliament to be protected, so as to guard persons working near it from danger, and a servant complains of the want of protection, and continues to work in the mill near the machinery on the faith of a promise by the master that the requisite protection shall be afforded, the master will be responsible if any accident occurs to the servant in the interval, from the want of such protection, unless the accident has been caused by the negligence of the servant himself. (y) '

(s) Ashworth v. Stanwix, 30 Law J., Q. B. 183.

(t) Vose v. Lanc. and York Rail. Co. (u) As to ventilation of collieries, see 23 & 24 Vict. c. 151, s. 10; Brough v. Homfray, L. R.. 3 Q. B. 771. As to statutory regulations under the Factory Acts, see 27 & 28 Vict. c. 48; 30 & 31 Vict. c. 103; Kent v. Astley, L. R., 5 Q.

B. 19.

And as to the provision of a fan in factories where grinding is carried on, see 30 & 31 Vict. c. 146, s. 8.

(x) Caswell v. Worth, 5 Ell. & Bl. 855. Senior v. Ward, 1 Ell. & Ell. 385; 28 Law J., Q. B. 139.

(1) Holmes v. Clarke, 6 H. & N. 349 ; 30 Law J., Exch. 135. Cowley v. Mayor, &c., of Sunderland, Ib. 127.

1 When a person enters into the employ of another, he is presumed to do so with full knowledge of all the ordinary risks and hazards incident to the business; Nashville, &c. R. R. Co. v. Elliott, 1 Cold. (Tenn.) 611; Mad River, &c. R. R. Co. v. Barber, 5 Ohio St. 541; Farwell v. Boston & Worcester, R. R. Co., Met. (Mass.) 49; Strahlendorf v. Rosenthal, 30 Wis. 674; Knoy v. Chicago, &c. R. R. Co., 32 Iowa, 357; Louisville, &c. R. R. Co. v. Filbern, 6 Bush. (Ky.) 574; Gibson v. Pacific R. R. Co., 46 Mo. 163; Wonder v. Baltimore R. R. Co., 32 Md. 411; and to assume and take upon himself in consideration of the compensation paid him for his services, all such ordinary risks. Therefore in determining the question as to whether an employer is liable for injuries sustained by his employes, the nature of the business, and the hazards ordinarily incident thereto, are of the highest importance. But these hazards and risks are to be taken to cover only such as are incident to the prosecution of the business in the ordinary and usual manner in which such business is conducted, as a prudent man would conduct it. Therefore if the business

565. Injuries to one fellow-servant from the negligence of another fellow-servant.—Where several servants are employed by the same master in one common employment, the master is conducted in a careless or negligent manner by reason of the employment of careless or incompetent help, this is treated as negligence on the part of the master, which renders him liable to any of his employes for injuries sustained by reason thereof, unless he shows that he exercised that degree of care in their employment, which, in view of the business and the risks to others from the employment of incompetent help, a prudent man would exercise; Strahlendorf v. Rosenthal, ante; Brothers v. Carter, 52 Mo 372; Moss v. Pacific R. R. Co., 49 Mo. 167; Foster v. Minn. Cent. R. R. Co., 14 Minn. 360; Columbus, &c. R. R. Co. v. Arnold, 35 Ind. 174; Cooper v. Milwaukee &c. R. R. Co., 23 Wis. 668; Chicago, &c. R. R. Co. v. Murphy, 53 Ill. 336; Lalor v. Chicago R. R. Co., 52 Id. 401, or unless the employe injured, knowing of the incompetency, or habitual negligence of the employe through whose negligence the injury was received, remained in his master's employment, without any assurance on the part of the master, that the employe in question should be discharged. King v. Chicago, &c. R. R. Co., 32 Iowa, 357; Wigging Ferry Co. v. Blakeman, 54 Ill. 201; Davis v. Detroit, &c. R. R. Co., 20 Mich. 105.

When an employe is injured by the negligence of a co-employe, the burden is upon the employe injured, to show negligence on the part of the master in the employment or retention of all his servants, and it will be presumed that the master in that respect exercised due care, and if the claim is, that the master was negligent in retaining an incompetent employe in his employment, if the servant had equal opportunities with the master for knowing of such incompetency on the part of the servant, it will be presumed that he knew the fact, and by remaining in his master's employ after such knowledge on his part, he takes the risk, unless the employer undertakes to give special directions, or promises an amendment which is not made; Davis v. Detroit R. R. Co., ante; unless the master himself is in some manner chargeable with negligence contributing to the injury. Paulmier v. Erie R. R. Co., 32 N. J. 151. Thus in the case last referred to the defendants were aware of the insufficiency of a tre-tle-work over which their railroad ran, and the employes were not aware of it. The engineer of the train upon which the deceased, for whose killing the action was brought, was fireman, in total di-regard of orders ran his engine upon the trestle-work, when it gave way, and occasioned the death of the fireman, it was held that there was such contributory negligence on the part of the defendants as made them liable for the consequences of the act.

And in all cases where an injury results to one employe from the negligence of another, the question whether the employer was guilty of negligence contributing thereto, is a fact for the jury to find. Andesco Oil Co. v. Gibson, 63 Penn St. 146. But where the employer is not guilty of negligence contributing to the injury, no recovery can be had. Thus, a brakeman can not recover for an injury resulting from a defect in the brake he was operating, arising from the neglect of a fellow. servant. Wonder v. Baltimore, &c. R. R. Co., 32 Md. 411.

A trackman can not recover for injuries sustained by the negligence of an engine-driver. Chicago, &c. R. R. Co. v. Murphy, 53 Ill. 336; Foster v. Minn. Centl. R. R. Co., 14 Minn. 360.

Nor can any employe recover for injuries sustained by reason of the neglect of a flagman to give notice that rails are torn up, by reason of which the train is thrown from the track. Cooper v. Milwaukee, &c. R. R. Co., 23 Wis. 668.