duce a confidence that they will be remedied.1 The only ground on which this exception can be justified is, that in the ordinary course of events the employee, supposing the employer would right matters, would remain in the employer's service; and that it would be reasonable to expect such continuance.2 But this reasoning does not apply to cases where the employee sees that the defect has not been remedied, and yet continues to expose himself to it. In such case, on the principles heretofore announced, the employee's liability in this form of action ceases. He may be liable for breach of promise; but the causal connection between his negligence and the injury is broken by the intermediate voluntary assumption of the risk by the employee.

§ 222. Negligence of middle-man in selection of materials, &c., is negligence of employer, so far as concerns subordinate employee. -Where the principal selects a superintendent to manage the concern, there the superintendent or middle-man represents the principal, and his negligence in this respect is the principal's negligence. "If a workman, or servant," says Wagner, J., when discussing this point in Missouri,5" is to work in conjunction with others, he must know that the carelessness of one of his fellowservants may be productive of injury to himself, and he must know that neither care or diligence by the master can prevent the want of due care and caution on the part of his fellow-servants. The servant on entering upon the employment is supposed to know and assume this risk. But does he risk the carelessness and negligence of those placed over him, in the selection of suitable materials, machinery, and the appliances incident to the employment? He acts in subordination. His simple duty is obedience. He has no means or opportunity of knowing whether the articles furnished are safe, and has to rely on the judgment of his superiors. If the master in person superintends the work, then there is no controversy or dispute as to where the responsibility belongs. If the master deputes the superintending control of the work, with the power to employ and discharge hands and purchase and remove materials, to an agent, then the master acts through the

1 Kroy v. Chic. R. I. & P. R. R. 32 Iowa, 357; Greenleaf v. Dubuque & S. City R. R. 33 Iowa, 52; Snow v. Housatonic R. R. 8 Allen, 441. 2 See supra, § 74. See supra, § 130.

See Laning v. N. Y. Cent. R. R. 49 N. Y. 521; Flike v. Bost. & A. R. R. 53 N. Y. 549; and observations made infra, 229, 241.

5 Brothers v. Carter, 52 Mo. 375.

agent and the agent becomes the master. The duties are the duties of the master, and he cannot evade the responsibilities which are incident and cling to them by their delegation to another. When the master appoints some other person to perform these duties, then the appointee represents the master, and though in their performance he may be and is a servant to the master, yet in those respects he is not a co-servant, a co-laborer, a coemployee, in the common acceptation of those terms. He is an agent, and stands instead of the principal, and is not a fellowservant within the meaning of the rule as applied to laborers and workmen. His acts are the acts of a master and superior, and the servants are bound to use whatever materials, machinery, apparatus, or appliances he may see fit to provide for them. This question was carefully considered in the case of Harper v. Indianapolis & St. Louis R. R. Co.,1 and decided in accordance with the doctrines above announced." But to make the employer liable for the middle-man's negligence in this respect, the employer must withdraw from the management of the concern, and constitute the middle-man its sole superintendent. Otherwise the middleman is but one of several servants, each of whom takes the risk of the other's negligence.2

§ 223. Notice to middle-man not necessarily notice to employer. The employer must have known or have been in a position where he ought to have known of the defect. - Several rulings are reported in which it is held that the employer is not chargeable with his superintendent's knowledge of a defect. Thus in a New York case, the plaintiff, who was an employee in a mill, which was owned by the defendant, and operated by his superintendent, a person of recognized competency, was injured in using an elevator. This elevator was originally constructed and designed for the carriage of materials and not of persons, and was unfit and unsafe for persons, but the employees, including the plaintiff, had contracted the habit of riding on it; this habit was known to the superintendent and agent, but not to the defendant, and the latter did not even know there was an elevator in the mill; the elevator was originally safe for the purpose for which it was designed, and for aught that appeared was safe until three weeks before the accident, but by constant use the supporting chain had worn thin and weak, and three weeks before the accident it had 1 47 Mo. 567. 2 See infra, § 229.

broken with a load of goods; this was known to the superintendent, but not communicated or known to the defendant; on these facts the referee held that the defendant was liable, on the ground that the knowledge of the superintendent and agent was imputable to him; but he did not find that from the circumstances the defendant ought in fact to have acquired that knowledge. This holding was reversed on appeal, the court deciding that the purpose of the elevator must be deemed to be that for which it is customarily used, and that the purpose of its original construction did not control; but that the defendant was not liable unless he had or ought to have had personal knowledge of the defect, and that his superintendent's knowledge was not in such case imputable to him. That such knowledge of a superintendent is not to be generally imputed to the master, has been not unfrequently ruled, it being argued that such is necessarily the law in cases where the employer leaves the whole control of the business to the manager, who has absolute power of rectification, and who is prudently chosen and retained. But in ordinary cases of business, it is hard to deny that the employer is in a position in which he ought to acquaint himself with such defects. And as to corporations, the case is still stronger. A corporation can only see through its agents, and what they see, if they are charged with this special branch of oversight, it must see.3

1 Corcoran v. Holbrook, N. Y. Gen. T. R., Alb. Law J., Jan. 31, 1874.

2 Wigmore v. Jay, 5 Exch. 354; Searle v. Lindsay, 11 C. B. N. S. 429; Gallagher v. Piper, 16 C. B. N. S. 669; Feltham v. England, 7 Best & Smith, 676; Wilson v. Merry, L. R. 1 Scotch App. 326; Hard v. Vt. & Can. R. R. Co. 32 Vt. 473; Albro v. Agawam Canal Co. 6 Cush. 75. These cases I take from the article just cited from the Albany Law Journal. Fordham v. R. R. infra, § 229.

The position in the text, I must admit, after being adopted by the supreme court of New York (Warner v. Erie R. R. 49 Barb. 558), was overruled by the court of appeals of the same state (S. C. 39 N. Y. 468), and is disapproved of in Vermont (Hard

v. Vt. Cent. R. R. 32 Vt. 473). The following thoughtful observations are from the article already referred to in the Albany Law Journal :

"As the law now stands, therefore, we should incline to add a concluding rule, as follows: 10. In the case of a delegated authority to engage and discharge workmen, and select material appliances for the prosecution of the work, there is no difference between the liability of a corporation and that of an individual; the delegation does not discharge the liability; and in respect to defects subsequently arising in material appliances originally sufficient, there is the same necessity, in order to fix liability on the master for injuries arising to the servant therefrom, to show personal no

IV. WHAT NEGLIGENCE OF FELLOW-SERVANTS A SERVANT ASSUMES.

§ 224. Master not liable for negligence of fellow-servants who have not been negligently appointed or retained. The master is not liable to his servants for injuries to them produced by the negligence of a fellow-servant, engaged generally in the same business, provided there be no negligence in the appointment of such negligent servant, or in the retention of such servant after notice of his incompetency.1

§ 225. The several constituents of this exception will be now considered as follows: