conditions, the doctrine that reasonably safe places and appliances must be provided is frequently modified by the statement that the duty has been discharged when ordinary or reasonable care has been exercised in the effort to make such provision. (") The continued employment of tools that are so worn as to increase the danger of their use will in general entail liability on the employer. If, however, the danger is an obvious one, the employee, continuing to work with a knowledge of the danger and without complaint, will be considered to have assumed the risk, and in case of injury has no recovery; nor will liability attach until the employer has or reasonably could have information of the defect requiring repair.

Here, again, qualifications abound, the usage of the trade, the custom of the shop, and the nature of the instrumentality each being a factor. Simple repairs may customarily be made by the users of the tools, in which case the employer is without liability. If a machinist is employed to make repairs, a workman injured while attempting to repair his own machine is without right of action. Perishable appliances, such as ropes, belts, etc., which wear out constantly from use, should be renewed at proper intervals if the master is to stand clear of the charge of negligence.

Intended use.

Liability attaches only where the injury is the result of the use of an appliance for the work and in the manner for which it was furnished. Thus the common practice of workmen riding on elevators intended only for freight is at the risk of the workman; (") so, also, of the use of one ladder for splicing to another when it was intended solely for use alone. (c) Continued indulgence in a practice with the master's acquiescence, however, or the adaptation of an appliance to new uses by the master himself or by a representative, qualifies this rule, so that if such use involves increased danger and a servant is injured thereby the master can not defend by pointing out the deviation from the original use or showing that the instrumentality was suitable therefor. ()

Customary method.

In close connection with the above is the rule that the employer is not liable to an employee for an injury incurred by a departure from the customary method of performing work or by leaving the place of hiş employment to work in some other department unless on instruc

a Anderson v. Michigan C. R. Co. (1895), 107 Mich. 591, 65 N. W. 585; Reed r. Stockmyer (1896), 20 C. C. A. 381, 74 Fed. 186.

Kern v. De Castro & D. Sugar Ref. Co. (1890), 125 N. Y. 50, 25 N. E. 1071. McKay v. Hand (1897), 168 Mass. 270, 47 N. E. 104.

d Lauter v. Duckworth (1897), 19 Ind. App. 535, 48 N. E. 864.

tions from a properly authorized representative. (") So if a more dangerous method or place of work is chosen when one less dangerous was available, the resultant injury, if any, does not charge the employer with liability. (')

Incomplete, etc., appliances.

A lower standard of the employer's liability prevails where the employee is engaged in the work of repair, or of bringing an unfinished appliance to completion, or of the demolition of a structure. A greater degree of danger is obviously present under such conditions. than if the work was proceeding with complete and stable instrumentalities, and the employee is held to be correspondingly obligated to be on his guard, though it is by no means intended to relieve the employer by a general rule. The actual knowledge of the employee may be taken as the ultimate guide in determining liability, and unnecessary and abnormal dangers are not a part of the risk assumed. (c)

Inspection.

The duty of making repairs necessarily involves the duty of discovering the need for them as it may arise, which entails the duty of inspection. The duty of maintaining tools and machinery in a reasonably safe and suitable condition is in general on a level with the duty to provide such appliances in the first instance. The inspection required for such maintenance differs somewhat from that necessary or presumed at the time a new plant or new tools are first brought into use. As to the latter it may first be stated that an employer who makes and supplies an instrumentality is chargeable with such a knowledge of its defects as ordinary care during the course of such manufacture would have disclosed. Subsequent inspections will not relieve him of this liability so long as the defects continue, and notice of such original defects is not necessary in order to fix the responsibility of the employer. In case of purchase, the duty of inspection may ordinarily be assumed to have been discharged by the manufacturer, though a showing that the purchase was carelessly made (as, for instance, without indicating to the manufacturer the intended use, so that he might make tests appropriate to such use) has been held to imply negligence. If an article is of an approved pattern and the dealer is a reputable one, the presumption is in favor of the employer's nonliability. Indeed, it is generally considered

• Stagg . Edward Western Tea & Spice Co. (1902), 169 Mo. 489, 69 S. W. 391. Wormell r. Maine C. R. Co. (1887), 79 Me. 397, 10 Atl. 49.

C Colorado Midland R. Co. v. Naylon (1892), 17 Colo. 501, 30 Pac. 249; but see Brick r. Rochester, N. Y. & P. R. Co. (1885), 98 N. Y. 211.

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that such facts are conclusive in his favor in the absence of particular facts or circumstances calculated to put a prudent person on his guard. (4) This doctrine does not appear to control in Michigan, however, where it has been held to be the duty of the employer to cause thorough inspection of newly purchased articles before putting them into use. () The duty of a reasonable inspection of purchased appliances is also inferable from a comparatively recent opinion of the Supreme Court of the United States. (c) In favor of this view is the fact that it accords with the doctrine of nondelegable duties, discussed below, and that it alone affords protection to the employee where there has been actual negligence on the part of the manufacturer, with whom he has no contractual relations.

The necessity for inspection of instrumentalities in use obviously varies with the nature of the appliance and the circumstances of em-. ployment. Small and simple tools may be used without inspection, the employer being entitled to assume that the workmen will make timely discovery of defects and be suitable judges of the fitness of such tools for use. Complex or dangerous machinery or instrumentalities that are liable to rapid wear or deterioration must, on the other hand, be the subjects of inspections of a nature and frequency adapted to the conditions indicated. Inasmuch, however, as inspection is only a means to an end, the fact that due provision has been made therefor will not absolve a master from liability where he has actual knowledge of defective conditions through some other means than by inspection. Nor will the proved inadequacy of an inspecting force charge him with liability if it is shown that in any particular instance the appliance involved in the case was in fact properly inspected.

The duty does not extend beyond a reasonably careful inspection, though no defect will be considered latent which may be discovered by the exercise of due care. The taking apart of machinery, or such other inspection as would interfere with the profitable conduct of business, is not, in general, required. (") External appearances, however, may be such as to demand a more thorough inspection; (~) so, also, of appliances showing defects in operation or those to which some accident has occurred of a nature likely to cause obscure injuries, etc. (^)

As to frequency of inspections there is little that can be stated definitely. The nature of the appliance and its liability to change

a Reynolds r. Merchants' Woolen Co. (1897), 168 Mass. 501, 47 N. E. 406. But see Erickson v. Am. Steel & W. Co. (1906), 193 Mass. 119, 78 N. E. 761. Morton v. Detroit, etc., R. Co. (1890), 81 Mich. 423, 46 N. W. 111. Richmond & D. R. Co. v. Elliott (1893), 149 U. S. 266, 13 Sup. Ct. 837.

d Philadelphia & R. R. Co. v. Hughes (1888), 119 Pa. 301, 13 Atl. 286.

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e Hall v. Emerson-Stevens Mfg. Co. (1900), 94 Me. 445, 47 Atl. 924.

f Mooney v. Connecticut River Lumber Co. (1891), 154 Mass. 407, 28 N. E. 352.

under the conditions of use are elements to be reckoned with.

Appliances which are much worn or which are not maintained at a good standard of condition according to common usage require more frequent inspection than is obligatory with newer and more efficient equipment and methods.

The modification of the doctrine of safe places in case of unfinished structures and of repairs following accidents applies to the duty of inspection, the probability of defective conditions being a matter of common knowledge, so that the servant making the inspection will be supposed to have assumed the risk.

Ownership of appliances.

The duty of inspection above considered assumes the ownership of both appliances and premises to be in the employer. Where ownership is divided various distinctions exist, based on the relations of the employer and the owner of the premises or instrumentality. The most important of this class of cases are perhaps those in which is involved the handling by railroad companies of cars belonging to other companies. Such cars, known in railroading as "foreign cars, although received only temporarily for purposes of transportation, are as completely identified with the employer's plant as if the transfer was made by purchase, so that the nature of the obligations arising there from differs from that existing in cases where the employer's lack of control over the appliance is usually held to exempt him from liability. (")

In the first place, it may be said that no railway company is obliged to receive and turn over to be handled by its employees any defective or dangerous car. Every company is under a legal duty not to expose its employees to dangers arising from such defects of foreign cars as may be discovered by reasonable inspection before such cars are received into its train. This inspection is such a one as the company's own cars would receive while in use, and not a shop inspection. The shortness of the time during which the foreign car is in the hands of a company is not an excuse for neglecting the duty. (')

Where danger from the use of foreign cars arises, not from defective equipments, but from differences of construction, it has been generally held that the servant assumes the obvious risks thus arising, but if ignorance of the risk is predicated on his part his right of action would follow. It may be noted, however, that the statutory requirement of automatic couplers is not met unless the various

@ Baltimore & P. R. Co. r. Mackey (1895), 157 U. S. 72, 15 Sup. Ct. 491. Atchison, T. & S. F. R. Co. v. Penfold (1896), 57 Kans. 148, 45 Pac. 574.

kinds brought together will actually couple by impact, the mere fact that they will so couple when used with others of the same make not being a sufficient compliance with the Federal statute. (a)

Animals.

Where animals are used as a part of an employer's industrial appliances, or are kept on his premises, and an employee is injured by reason of their vicious or otherwise dangerous qualities, the employer is liable for the injury if he is or ought to be aware of such dangerous qualities. The same general rules as to the employer's duty to give warning and the employee's assumption of risk in accordance with his own knowledge of conditions are applicable in this connection as in the case of inanimate appliances or adjuncts.

WORKING FORCE.

Hiring coservants.

Besides the duty to use care in regard to inanimate or irresponsible instrumentalities, the employer must also be reasonably and properly careful and diligent to see that each employee hired by him has such qualifications as will enable him to perform his duties without greater risk to himself and his coemployees than the business necessarily involves. The same principles apply here as in connection with the duty as to appliances. Where the degree of danger to be guarded against is greater or the skill needed for safety is of a higher order, the degree of care demanded is correspondingly increased. Obviously the question of experience or ability would be of little moment in mere manual labor unrelated or not immediately related to other stages of work, while for certain classes of railroad employment, for instance, definite inquiries as to qualifications are necessary to relieve the employer of the charge of negligence.

The disqualifications of persons of suitable age may be mental, moral, or physical, the most common being those that arise from the intemperate use of intoxicants, though habitual carelessness or recklessness, such as may reasonably come to the knowledge of the employer, likewise charge him with liability. The element of knowledge, either actual or constructive, is an essential one. A plaintiff grounding his claim on the negligence of the employer in hiring an incompetent coservant must prove, not only the incompetence, but also that the employer failed of proper care and diligence in the original hiring or in subsequent inquiry as to incompetency of which notice was given during the term of service. () It must further

"Johnson v. S. P. R. Co. (1904), 196 U. S. 1, 25 Sup. Ct. 158.

Indiana, B. & W. R. Co. v. Dailey (1887), 110 Ind. 75, 10 N. E. 631.