service in which they engage, yet this does not mean that they may not repose confidence in the prudence and caution of the employer, and rest on the presumption that he has also discharged his duty by supplying machinery free from latent defects, which expose the employee to extraordinary and hidden. perils.2 Master Liable Only for Want of Reasonable Care.-But a master is not liable to his employee injured through a latent defect in a machine or appliance when the character of the defect is such that its existence is undiscoverable upon the exercise of reasonable care by the master.3 1 See Jenney Electric Light and Power Co. v. Murphy, 115 Ind. 566. see 2. Louisville etc. R. Co. v. Buck, 116 Ind. 566, s. c., 9 Am. St. Rep. 883, 889; citing Indiana Car Co. v. Parker, 100 Ind. 181; Hough v. Texas etc. R. Co., 100 U. S. 213; and further saying: "While the employer may expect that the employee will be vigilant to observe and that he will be on the alert to avoid all known and obvious perils, even though they may arise from defective tools and machinery (Atlas Engine Works v. Randall, 100 Ind. 293; 50 Am. Rep. 798), yet the latter is not bound to search for defects or inspect the appliances furnished him to whether or not there are latent imperfections in or about them which render their use more hazardous. These are duties of the master, and unless the defects are such as to be obvious to any one giving attention to the duties of the occasion, the employee has a right to assume that the employer has performed his duty in respect to the implements and machinery furnished. Bradbury v. Goodwin, 108 Ind. 286; Little Rock etc. R. Co. v. Leverett, 48 Ark. 333; 3 Am. St. Rep. 230; Fort Wayne etc. R. Co. v. Gildersleeve, 33 Mich. 133; Hughes v. Winona etc. R. Co., 27 Minn. 137; Wood on Master and Servant, § 376." Concerning servants' assumption of risk from dangerous machines, appliances or structures, see Scanlon v. Boston etc. R. Co. 147 Mass. 484; 8. c., 9 Am. St. 733, and note 736; Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 648, et seq. 3. Georgia etc. R. Co. v. Nelms, 29 Cent. L J. (Ga.) 352, with comprehensive note on subject 354. In this case the action was against a railroad and banking company by an employee, injured while driving spikes, by the hammer breaking and flying into pieces. This "under the law of master and servant. Under that law the burden was upon the plaintiff to show negligence on the part of the defendant in supplying him with a defective hammer. Before he can recover . . . he must show that the hammer was defective, and that the company knew it, or could have ascertained it by the exercise of ordinary care and diligence. The mere fact that the hammer was defective, and that the injury resulted therefrom is not sufficient to authorize the jury to infer negligence on the part of the company in the purchase or selection of those hammers. Wood, in his Law of Master and Servant, § 368, says: 'From the mere fact that an injury results to a servant from a latent defect in machinery or appliances of the business, no presumption of negligence on the master's part is raised. There must be evidence of negligence connecting him with the injury. The fact that machinery had been previously protected, or that subsequent to the injury guards were provided for it, is not evidence from which negligence may be inferred. The mere fact that the machinery proves defective, and that an injury results therefrom, does not fix the master's liability. Prima facie it is presumed that the master has discharged his duty to the servant, and that he was not at fault. Therefore the servant must ovecome this presumption by proof of fault on the master's part, either by showing that he knew or ought to have known of the defects. The burden of proving negligence upon the part of the master is upon the servant, and he is bound to show that the injury arose from defects known to the master, or which he would have known by the exercise of ordinary care, or that he has failed to observe precautions essential to the protection of the servants, which ordi IV. MUNICIPAL CORPORATION'S LIABILITY FOR-Duty Concerning Highway Structures.-A municipal corporation, though bound to the duty of maintenance and repair, is not absolutely bound for the soundness of the structures it erects as part of a public highway.1 Liability Only for Negligence.—It is not an insurer against all defects, latent as well as patent, but is liable only for negligence in the performance of its duties.3 nary prudence would have suggested.' The same work (section 382) says: 'The servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master and due care on his own part, and he is met by two presumptions, both of which he must overcome in order to entitle him to a recovery: first, that the master has discharged his duty to him by providing suitable instrumentalities for the business, and in keeping them in condition, and this involves proof of something more than the mere fact that the injury was caused from a defect in the machinery, imposes upon him the burden of showing that the master had notice of the defect, or that, in the exercise of that ordinary care which he is bound to observe. he would have known of it. When this is established, he is met by another presumption, the force of which must be overcome by him, and that is that he assumed all the usual and ordinary hazards of the business.' Mr. Thompson, in his work on Negligence, p. 1053, § 48, uses the following language: In an action by an employee against his employer for injuries sustained by the former in the course of his employment, from defective appliances, the presumption is that the appliances were not defective, and when it is shown that they were, then there is a further presumption that the employer had no notice or knowledge of this fact and was not negligently ignorant of it.' See also Pierce R. R. 382. We cannot hold-for, in our opinion, it is not the law-that an employer is liable to a servant when he furnishes him with an axle, a wagon, a saw, a hammer, or any other tool which appears to be first clase, and which subsequently, by some latent defect, breaks and injures the servant. If such were the law, every farmer, contractor or other employer would be liable to his employee when he furnished him tools and they broke and injured him on account of some latent defect which could not be ascertained by the exercise of ordinary care." 1. This must be admitted to be the the general doctrine of the authorities on this question, according to Rapho v. Moore, 68 Pa. St. 404, 408. 2. See 2 Thomp. on Negl., 796. 3. AGNEW, J., in Rapho v. Moore, 68 Pa. St. 404, 408, where it is further remarked: "Hence it is said in Shear. & Redf. on Negligence, § 148, as the result of the authorities, that when the defect in a lawful structure is latent, or is the work of a wrongdoer, either express notice of it must be brought home to the corporation, or the defect must be so notorious as to be evident to all who have occasion to pass the place or to observe the premises; in which case the corporation is charged without [with] constructive notice, being in fault för not knowing the fact. Id., § 407. But what is negligence is itself a question in each case, and must always depend on its peculiar circumstances. Great danger demands higher vigilance and more efficient means to secure safety. Where the peril is small, less will suffice.' Frankford etc. Tp. Co. v. Phila, etc. R. Co., 54 Pa. St. 320. The degree of care having no legal standard, but being measured by the facts that arise, it is reasonable such care must be required as, it is shown, is ordinarily sufficient under similar circumstances to avoid the danger and secure the safety needed.' Id. Applying these principles here, it may be asked what structure more important, in view of the safety of life and property, can be well imagined than such a bridge as this having a span of fifty-two feet, crossing from ten to twelve feet above the stream whose water is middle deep? The accident itself is evidence of its important character. The plaintiff's wagon was overturned in the fall, the body crushed, the load of wheat fell underneath it into the stream, and one of the horses was killed. As remarked by our brother READ: A bridge looks fair till it breaks down; it is not like a pit which you V. IN GOODS SOLD-In General.-Whenever an article sold has some latent defect which is known to the seller, but not to the purchaser, the former is liable for this defect if he fails to disclose his knowledge on the subject at the time of the sale. If his knowledge is proved by direct evidence, his responsibility rests upon the ground of fraud. But there are cases in which the probability of knowledge on the part of the vendor is so strong that the courts will presume its existence without proof; and in these cases the vendor is held responsible upon an implied warranty. The only difference between these two classes of cases is, that in one the scienter is actually proved, while in the other it is presumed.1 can see and avoid.' 'In practice it is used up to the last moment.' Humphreys . Armstrong, 56 Pa. St. 204. Hence such a structure demands constant vigilance to guard and preserve it. Therefore, where a bridge is old, having stood for the length of time the timbers composing it are accustomed to last, and when it may be reasonably expected that decay has set in, it is negligence to omit all proper precautions to ascertain its true condition. Nor will mere appearance in such a case excuse the neglect. It is a matter of common knowledge that invisible defects may, and under such circumstances probably do, exist; that either wet or dry rot may set in and not be visible, and therefore should be sought for. But no one of ordinary intelligence would think of seeking for an inward and invisible defect by merely inspect ing the surface of the wood. This being the case, it is clearly the duty of the supervisors, having thus reason to believe that defects may exist, to call to their assistance those whose skill will enable them to ascertain the true state of the structure, and determine the question of its safety. Without doing this much at least, their duty to the public is not performed. Not to do it is therefore negligence," etc. Defect Not Disclosed by Close Exami nation. But in Hicks v. Chaffee, 13 Hun (N. Y.) 293, the defendants, commissioners of highways, were notified that a bridge was unsafe. No particular defect was pointed out. Within a week afterwards the commissioners, in company with an experienced bridge builder, examined the bridge carefully from above and below, taking off the planks and testing the timber, but could discover no symptom of decay. Shortly after, they caused another experienced bridge builder to examine it, and replace old planks by new, where necessary. In the following month the accident took place by which the plaintiff's horse was injured in passing over the bridge. The cause of the casualty was that one of the timbers was rotten at the center. This defect could only be discovered by cutting the timber in two. It was held that the defendants were guilty of no negligence, and that the plaintiff was not entitled to recover. BARNARD, P. J. said: "To establish a liability upon the part of the defendants they must have neglected to repair the defective bridge in question, after notice of its condition, with reasonable and ordinary care and diligence. They must have in their hands funds with which to make the repair, or they must have the power lawfully to raise such funds, if the defect continue sufficiently long. Ignorance of the defect is of itself negligence." But according to the same opinion (p. 294), there is no absolute undertaking or guaranty upon the part of the defendants that the bridge should, at all times and under all circumstances, be in proper condition. A reasonable degree of watchfulness in ascertaining its condition from time to time, and preventing its dilapidation, is all that is required by law of them. (Barton v. Syracuse, 36 N. Y. 57; McCarty v. Syracuse, 46 N. Ÿ. 194; Hover v. Barkhoof, 44 N. Y. 113.) A close examination by one of the commissioners and two bridge builders failed to disclose the defect, and did disclose an apparently strong timber. To hold that the defendants, under such circumstances, are liable for a defect which no examination, short of a destruction of the bridge itself, would show, is to make the defendants insurers of all structures." 1. Hoe v. Sanborn, 21 N. Y. 552; Exception to General Doctrine.—It is, indeed, laid down as a broad general doctrine that the vendor of personal property is not liable for defects of any kind in the thing sold, unless there is an express warranty or fraud in the seller.1 But to such statement there are exceptions2 in the various instances of implied warranties, and in regard to latent defects, at least in unspecified chattels, Manufacturer's Warranty Against.—Thus a manufacturer who sells goods of his own manufacture impliedly warrants that they are free from any latent defect growing out of the process of manufacture, though he is not liable for any latent defect in the material which he is not shown, and cannot be presumed to have known.3 No Warranty by Dealer Against.-But there is no implied war ranty against a latent defect in manufactured goods sold by a merchant who is not a manufacturer, as where, in a sale by sample, s. c., 78 Am. Dec. 163, 165, stating that the rule given in the first sentence of the text is "a universal doctrine, founded upon the plainest principles of natural justice." This passage is quoted in Hadley v. Clinton County Importing Co., 13 Ohio St. 502; s. c., 82 Am. Dec. 454, 461. The subject of latent defects in goods sold, as it stood at the time, was discussed in an article in 13 Cent. L. J. 201. Statutory Warranty Against.-Under the code of Georgia the vendor of chattels warants that he knows of no latent defect undisclosed. Ga. Code, 2650, sub-sec. 3. And this provision has been applied where the vendor, who had owned a mare three years, stated, on selling her, that her shortness of breath was caused by epizootic, when in fact it was caused by another disease, the "bellows," which soon rendered her worthless. Perdue v. Harwell, So Ga. 150. 153. What does not constitute a defect in a steam chest is not latent, so as to be covered by an express warranty, when it is readily discovered by taking off the cover. Drew v. Edmunds, 60 Vt. 401; s. c., 6 Am. St. Rep. 122, 124. 1. Kingsbury v. Taylor, 29 Me. 508; s. c., 50 Am. Dec. 607. 2. Rodgers v. Niles, 11 Ohio St. 48, 53: 3. Hoe v. Sanborn, 21 N. Y. 552; s. c., 78 Am. Dec. 163, 171, 175. In regard to the first part of the statement of the text, it is said in this case, that this exception to the general rule of caveat emptor "has been recognized in several -cases, but with some hesitation and un certainty;" though in "regard to the both the sample and the bulk of the goods contain such defect, which is unknown and undiscoverable by examination; and evidence is inadmissible to show that by the usage of merchants the seller is responsible therefor.1 Warranty of Fitness as Related to That Against Latent Defects. -The doctrine of a warranty against latent defects is frequently connected with the warranty of fitness for a particular purpose. Thus it has recently been held in England that upon a sale of goods by sample from a manufacturer there is an implied warranty that they will be of the quality suitable for the purposes for which they are bought, to cover any latent defects which are not apparent in the proper examination of the sample.2 But compare Rodgers v. Niles, 11 Ohio St. 43, 55, 56; Cunningham v. Hall, 4 Allen (Mass) 268, 274; Randall 7. Newson, L. R., 2 Q. B. D. 102, 110; s. c., 19 Eng. Rep. 243, 250. 1. Dickinson v. Gay, 7 Allen (Mass.) 29; s. c., 83 Am. Dec. 656, 658. Compare, to like effect, as to general doctrine, Bragg v. Morrill, 49 Vt. 45; s. c., 24 Am. Rep. 102, 104, and note. Compare, generally, as to false packing, Barnard v. Kellogg, 10 Wall. (U. S.) 383, 388-89. 2. Drummond v. VanIngen, L. R., 12 App. Cas. 284; s. c.. 38 Eng. Rep. 380. In this case cloth merchants ordered of cloth manufacturers, worsted coatings which were to be in quality and weight equal to samples previously furnished by the manufacturers to the merchants. The object of the merchants was, as the manufacturers knew, to sell the coatings to clothiers or tailors. The coatings supplied corresponded in every particular with the samples, but, owing to a certain defect, were unmerchantable for purposes for which goods of the same general class had previously been used in the trade. The same defect existed in the samples, but was latent and was not discoverable by due diligence upon such inspection as was ordinary and usual upon sales of cloths of that class. The EARL OF SELBORNE said: "I think it sufficient to say, that while the doctrine of implied warranty ought not to be unreasonably extended so as to require manufacturers to be conversant with all the specialties of all trades and business which they do not carry on, but for the purposes of which goods may be ordered from them, yet I think it does extend to such a case as the present, if the goods, being of a class known and understood, between merchant and manufacturer, as in demand for a particular trade or business, and being ordered with a view to that market, are found to have in them, when supplied, a defect, practically new, not disclosed by the samples but depending on the method of manufacture, which renders them unfit for the market for which they were intended. If it would be unreasonable, on the one hand, to expect from the manufacturer a more exact knowledge than in the ordinary course of business would be likely to reach him of the processes and modes of treatment through which manufactured goods may pass, in the hands of the merchant or his customers before being adapted to their ultimate uses, it would be not less unreasonable to expect from the merchant an exact knowledge, not only of the sort of article which he wants, but also of the processes by which it is to be manufactured. He has a right to presume that the manufacturer understands his own business, and will use such methods as will be proper to produce a good article of the kind ordered. The burden of ascertaining beforehand that this can be done, or how it is to be done, does not rest upon him." Lord Herschell relied, as to warranty of fitness and merchantability, upon Jones v. Bright, 5 Bing. 533, and Jones v. Just, L. R., 3 Q. B. 197, and as to the extension of the warranty of merchantability to sales by sample, upon Mody v. Greyson, L. R., 4 Ex. 49. Concerning warranty of fitness in its relation to latent defects, see Pease v. Sabin, 38 Vt. 432; s. c., 91 Am. Dec. 364, and note 365; Bragg v. Morrill, 49 Vt. 45; s. c., 24 Am. Rep. 102, 103, 104, and note; Rodgers v. Niles, 11 Ohio St. 48, 54, 55; Leopold v. Van Kirk, 27 Wis. 152, 156; Downing v. |