appear that the injuries complained of were the consequence of the incompetence charged. (")

Although the employer's duty in regard to care is a continuing one, the presumption of good character and suitable qualifications can safely be relied on by an employer who has used due care in the original hiring until notice of a change. A single act of negligence or incompetence is not enough to fix the employer's liability for continuing to employ the servant guilty of the same, though notice thereof may be presumed to put him on his guard. It has been held in some cases, however, that the quality of a single act was so notoriously objectionable that it indicated a degree of incompetence sufficient to charge the master with liability for the employment of the person committing it. () Evidence of the commission of several acts of negligence is, in most jurisdictions, held to be competent to prove the unfitness of a servant. In Pennsylvania (c) and Massachusetts, (4) however, general reputation is made the test, and the submission of individual acts is objected to as tending to raise collateral inquiries, and thus indefinitely to protract the case; but the rule that proof of frequent specific acts of actual negligent quality of which the employer had, or by the use of due care could have had, knowledge is the one generally approved; and obviously reputation is the general result of the impressions made by individual occurrences.

Corollary to the obligation to employ competent coservants is the requirement that a sufficient number shall be provided for the reasonably safe performance of the employer's work. This duty includes that of seeing, at least in a general way, that the employees engaged are properly distributed to the various parts of the establishment and that due provision for physical fitness is made by allowing opportunity for rest and time for meals.

Rules.

Another branch of the employer's duty is that of providing appropriate rules and securing the carrying out of a suitable system for the conduct of his work. This applies only to businesses sufficiently complex to make such arrangements reasonable, and no such assumption @ Galveston Rope & Twine Co. r. Burkett (1893), 2 Tex. Civ. App. 308, 21 S. W. 958.

Baulec r. New York & II. R. Co. (1874), 59 N. Y. 356, 17 Am. Rep. 325.

Frazier r. Pennsylvania R. Co. (1861), 38 Pa. 104, SO Am. Dec. 467. This case was sharply criticised in Pittsburg, Ft. W. & C. R. Co. r. Ruby (1871), 38 Ind. 294, 10 Am. Rep. 111, in which it was said that the case stands alone, unsustained and unsupported, so far as we have been able to discover, by any elementary work or decision.”

d Hatt r. Nay (1887), 144 Mass. 186, 10 N. E. 807.

is made as that rules can be so framed as to guard against every contingency. The duty is held to extend to the making of reasonable rules and their reasonable and practicable enforcement, ordinary care being used to anticipate and guard against such accidents as can be reasonably foreseen. A defective system and inadequate rules will not satisfy the law, but the presumption is in favor of the sufficiency of those provided, and it has been held that only manifestly unreasonable or clearly insufficient rules would leave the employer open to the charge of negligence. (") In this, as in other cases, common usage is in general accepted as conclusive. The absence of rules may be condoned if it appears that a customary method of carrying on work is actually sanctioned and approved by the employer and is understood by the employees as being binding upon them. A mere custom of employees, however, apart from the employer's approval or enforcement will not suffice. (')

Such rules and practices as are prescribed must be brought to the knowledge of the employee before he is considered to be bound by them, but it may be inferred from circumstances that this has been done. Express contracts with reference to the conditions of employment as affected by specified rules are conclusive as against an employee professing ignorance of such rules; (c) but a mere agreement, though in writing, to study the rules and keep posted on them is applicable only to such rules as have been duly promulgated or which the employer has definitely undertaken to bring to the employee's knowledge. (4) Continuance in service for a considerable length of time or the fact that printed copies of rules are furnished with directions that they be read are circumstances that will be construed against the employee in cases of claims based on alleged ignorance of rules.

Enforcement of rules is no less a duty than the promulgation of rules in so far as a reasonably careful supervision will accomplish it. Repeated and notorious violations will charge the employer with a knowledge of the insufficiency of the provisions made and the necessity of new regulations or of additional superintendence. In the absence of steps. to secure the enforcement of rules thus violated it has been frequently held that the master has sanctioned their abrogation and that they are no longer binding. Their violation would not then be regarded as negligence, nor could the employer offer such rules as a defense. ()

"Little Rock & M. R. Co. v. Barry (1898), 28 C. C. A. 644, 84 Fed. 944. Abel r. Delaware & H. Canal Co. (1886), 103 N. Y. 581, 9 N. E. 325. Sedgwick v. Illinois C. R. Co. (1887), 73 Iowa 158, 34 N. W. 790.

4 Carroll v. East Tennessee, V. & G. R. Co. (1889), 82 Ga. 452, 10 S. E. 163.

e St. Louis, A. & T. R. Co. v. Triplett (1891), 54 Ark. 289, 15 S. W. 831; 16 S. W. 266.

Instructions and warnings.

Besides the general rules by which the conduct of business is determined, instructions may be necessary either in case of abnormal conditions or of the employment of inexperienced persons. The principle lying at the foundation of this duty is the same as in the case of providing appliances, viz, liability does not attach on account of the dangers of the situation, but for placing the employee in a situation of the hazards of which he is excusably ignorant. There is no legal necessity for the giving of instructions or warnings, therefore, where the employee's knowledge as to conditions and means of safety is equal to that of the employer, nor where, all the circumstances being considered, adequate knowledge can be attributed to him. On principles already adverted to, repair men, or those whose duty it is to make dangerous places safe, are not entitled to instruction so far as the dangers involved relate only to the appliances or places which engage their attention. A modification of this rule is to be found, however, in the fact that it is not a mere knowledge of conditions, but a comprehension of the dangers attendant thereon that must be shown in order to absolve the master from responsibility. () Misrepresentations on the part of the employee as to age and experience have been held by some courts to relieve the master of the duty to instruct, (') while others deny such effect. () Regarding the duty as one of " proper care," it would seem that the employer can not be absolved from the duty of disclosing dangers which are not obvious, by any statements whatever of those whom he may employ, though the circumstance of the employee's representations may be considered.

Inasmuch as persons of tender years are particularly unlikely to understand the risks attendant upon the use of dangerous machinery, the duty of instruction will be held to apply in cases of their employment when it would not be considered if the conditions related to adult employees. Experience and capacity are to be reckoned with in deciding as to the duty of instructing minors as well as adults, but where a person is too young to realize the dangers or to profit by the instructions given the employer is not freed from liability even by the giving of such instructions as would under ordinary conditions be sufficient. (")

Not every contingency is to be anticipated in the giving of instructions, but such only as are probable in the conduct of the business a Coombs t. New Bedford Cordage Co. (1869), 102 Mass. 572, 3 Am. Rep. 506. Steen r. St. Paul & D. R. Co. (1887), 37 Minn. 310, 34 N. W. 113. Louisville & N. R. Co. v. Miller (1900), 43 C. C. A. 436, 104 Fed. 124.

Hickey r. Taafe (1887), 105 N. Y. 26, 12 N. E. 286; Pittsburg, C. & St. L. R. Co. v. Adams (1886), 105 Ind. 151, 5 N. E. 187.

and while the servant keeps within the scope of his employment. Increased hazards of which the employer has or should have knowledge should be brought to the attention of even experienced workmen who are not in a situation to acquire timely knowledge for themselves. The instructions must be sufficiently definite and explicit to call attention to the specific dangers, and must be timely and adequately imparted to the person for whose benefit they are intended. What will amount to a sufficiency can not be determined by any set rule, but will vary with conditions. It has been held in a number of instances that a mere notice to be on one's guard is not sufficient, but that the particular danger and a probably safe way of avoiding it should be pointed out. (") It is obvious, however, that conditions may make the enforcement of this rule unnecessary or even impracticable, for the danger may be discoverable or avoidable by proper circumspection, or it may be of such nature that only the persons actually present can determine at the time how it may best be avoided.

A railroad employee rightfully on the track may expect warning of the approach of a train;() also the crew of a freight train is entitled to warning if likely to meet unusal obstructions in a yard at night. () Under the doctrine of the "last clear chance" this duty to warn is held to be such that, notwithstanding the previous negligence of the injured person, if, at the time the injury occurred, it might have been avoided by the exercise of reasonable care on the part of the defendant, he will be liable for the failure to exercise such care; (4) while in a recent case in Missouri () it was held that under the theory of the "humanitarian doctrine" of the employer's liability an employee, even if negligent, can recover where it was practicable for persons in charge of a train to avoid inflicting the injury on account of which the action is brought.

RESTRICTIONS OF EMPLOYEES' RIGHT TO RECOVER.

Efforts on the part of the employer to make his workmen insurers of their own safety by the adoption of rules or the requirement of contracts releasing the employer from liability will in general be discountenanced by the courts. Thus it has been held that a rule which required an employee not to attempt to use appliances unless he knew that they were in a proper condition imposed upon the servant one of the duties of the master, i. e., that of seeing that the implements furnished are in a reasonably safe state of repair, and such rule was deFox v. Peninsular White Lead & Color Works (1891), 84 Mich. 676, 48 N. W. 203.

Illinois C. R. Co. v. Mahan (1896), 34 S. W. 16. (Ky.)

McGraw v. Texas & P. R. Co. (1898), 50 La. Ann. 466, 23 So. 461.

d Styles v. Receivers of Richmond & Danville R. Co. (1896), 118 N. C. 1084, 24 S. E. 740.

Johnson v. St. Joseph Terminal Co. (1907), 101 S. W. 641.

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clared void. (") A stipulation exempting a railroad company from Iability for injuries caused employees by its negligence is void as against public policy. () A contract executed subsequent to the employee's entrance on service, relieving the employer of liability, is void for want of consideration. () In another case a lower court of the same State held a contract of like effect, though based on sufficient consideration, to be void as against public policy. (")

It has been held that an employer could not relieve himself by contract of a liability imposed by statute, although the statute itself made no reference to such contracts. (*) An implied waiver of the benefits of a statute which requires frogs, etc., on railroads to be blocked or machinery to be guarded by continuance in service with knowledge that the law was not complied with, has been held not to be valid as a defense in an action for injuries resulting from the company's failure to so comply. () There is, however, a strong list of cases on the other side. (") In Georgia () and Pennsylvania (4) express contracts limiting or denying the employee's right of action have been upheld. In the former State, a later statute declares such contracts void so far as they affect any liability fixed by law. Similar or more general statutes exist in a number of States.

Where the feature of relief benefits exists a new factor is introduced, and the rulings are quite uniform in favor of the contract. The terms of the contract are, in general, that the acceptance of benefits by the injured employee shall operate as a waiver of his right of action at law against the employer, and that if action is brought and is compromised or carried to judgment no claim shall lie against the fund. Such funds are usually maintained jointly by employers and employees, though the expense is not necessarily equally shared.

a Missouri, K. & T. R. Co. v. Wood (1896), 35 S. W. 879. (Tex.)

Lake Shore & M. S. Ry. Co. r. Spangler (1886), 44 Ohio St. 471, 8 N. E. 467; Little Rock & Ft. S. Ry. Co. v. Eubanks (1887), 48 Ark. 460, 3 S. W. 808; Richmond & D. Ry. Co. r. Jones (1891), 92 Ala. 218, 9 So. 276; Stone's Admr. v. Union P. R. Co. (1907), 89 Pae. 715 (Utali); Johnson 7. Charleston & S. R. Co. (1899), 55 S. C. 152, 32 S. E. 2; Roesner r. Hermann (1881), 8 Fed. 782. Purdy r. Rome, etc., Ry. Co. (1891), 125 N. Y. 209, 26 N. E. 255.

d Runt . Herring (1892), 49 N. Y. St. 126, 21 N. Y. Supp. 244. Kansas P. R. Co. r. Peavey (1883), 29 Kans. 169, 44 Am. Rep. 630; Tarbell r. Rutland R. Co. (1901), 73 Vt. 347, 51 Atl. 6.

↑ Narramore r. Cleveland, C., C. & St. L. Ry. Co. (1899), 96 Fed. 298; Davis Coal Co. r. Polland (1902), 158 Ind. 607, 62 N. E. 492: Western Furn. & Mfg. Co. r. Bloom (1207), 90 Pae. 821. (Kans.)

9 Denver & R. G. R. Co. r. Gannon (1907), 90 Pae. $53 (Colo,); St. Louis Cordage Co. v. Miller (1903). 126 Fed. 495; O'Maley r. South Boston Gas Light Co. (1893), 158 Mass. 135, 32 N. E. 1119.

Western & A. R. Co. v. Bishop (1873), 50 Ga. 465.

4 Mitchell r. Pa. R. (1853), 1. Am. Law Reg. 717.