servants, is not a fellow employe with one whom he employs, and that his negligence is that of the master.' § 948. Defective machinery, material, etc.-A railroad company is liable to an employe for an injury received by him in consequence of the unskilful, improper and negligent manner in which it constructed its road, where such defects are not known to the employe at the time of exposing himself to the danger. Here the rule exempting the master from liability for an injury to a servant caused by the negligence of a fellow servant has no application.2 We shall not here enter into any general discussion. of the question when and under what circumstances a servant takes upon himself risks incident to the use of unsafe machinery by continuing to use it without objection after knowledge of its defective character. It is not enough, however, that the servant knew or ought to have known the actual condition and character of the defective instrumentalities furnished for his use. He must also have understood, or by the exercise of or a ratification by the company. Parker v. Waycross & F. R. Co., 81 Ga. 387; 8 S. E. 871. 1 See Thompson on Negligence, vol. 2, p. 997; see also, Hough v. Railroad Co., 100 U. S. Sup. Ct. 213; Ryan v. Fowler, 24 N. Y. 410; Flike v. P. & A. R. R. Co., 53 Id. 549; Lanning v. N. Y. C. R. R. Co., 49 Id. 521; Keegan v. W. R. R. Co., 4 Seld. 175; Plank v. R. R. Co., 1 N. Y. Sup. Ct. 319; Mullan v. P. & S. M. Co., 78 Pa. St. 25; Noyes v. Smith et al., 28 Vt. 59; C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; Chamberlain v. M. & M. R. R. Co., 11 Wis. 238; Le Clair v. St. P. & P. R. R. Co., 20 Minn. 6; L. & N. R. R. Co. v. Collins, 2 Duval, 114; Mann v. Oriental Print Works, 11 R. I. 152; C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201; Shanny v. Androscoggin Mills, 66 Me. 420; Colorado Cent. Ry. Co. v. Ogden, Colo. 499; Cayzer v. Taylor, 10 Gray, 274; Booth v. B. & A. R. R. Co., 73 N. Y. 38. 2 Trask v. So. Cal. R. R. Co., 53 Cal. 96; Rogers v. C. P. R. R. Co., 37 Cal. 607. A full discussion of the rule making the proprietor of machinery and material liable for injuries to employes resulting from defects therein, and also of the extent of knowledge on the part of such employes required in order to relieve the employer from such liability, is found in the case of Sanborn v. Madera Flume, etc., Co., 70 Cal. 264. See also, Fuller v. Jewell, 80 N. Y. 52. dinary observation ought to have understood, the risks to which he is exposed by their use.1 It is one thing to be aware of defects in the instrumentalities or plan furnished by the master for the performance of his services, and another thing to know or appreciate the risks resulting or which may follow from such defects. The mere fact that the servant knows the defects may not charge him with contributory negligence or the assumption of the risks growing out of them. The question is, Did he know, or ought he to have known, in the exercise of ordinary common sense and prudence, that the risks, and not merely the defects existed? 2 949. Servant's knowledge of dangers of employment.The rule that a servant having equal knowledge with the master of dangers incident to the work, takes the risk upon himself if he goes on with it, presupposes that the servant has sufficient discretion to appreciate the dangers and has no application to the case of young and inexperienced children. In such case it is the duty of the master not only to warn the child but to instruct him as to the dangers of the employment and the means of avoiding them.3 The right of a servant to recover for injuries resulting from the master's negligence is not affected by notice of any defects other than such as the servant ought, in the exercise of ordinary prudence, to have foreseen might endanger his safety. The question whether he 1 Russell v. Minneapolis & St. P. R. Co., 32 Minn. 230. 2 Cook v. St. Paul, 32 Alb. L. J. 319. See also, Mayers v. Chicago L. I. & P Ry. Co., 14 N. W. Rep. 340; Colbert v. Rankin, 72 Cal. 197 and Snow v. Housatonic R. R. Co., 8 Allen, 441; s. c. 85 Am. Dec. 720; Lawless v. Connecticut River R. R. Co., 136 Mass. 5; Dorsey v. Phillips, etc., Co., 42 Wis. 598; Lazure v. Graniteville M. Co., 18 S. C. 18; Wharton on Negligence, sec. 217. 3 Fisk v. Central Pac. R. R. Co., 72 Cal. 38. had such knowledge of the danger to which he was exposed as would charge him with contributory negligence is one of fact for the jury.1 A servant has a right to assume that when danger from defects has become known to the master such measures have been taken as will prevent the recurrence of that danger. But no matter how great may be the danger to which a defect in the building or materials may expose the servant, yet if with full knowledge of the defect and of the extent of the risk he thereby assumes or with equal means with his employer of judging the extent of the danger, he remains in service, he takes upon himself the chance of injury therefrom.2 § 950. Remedy by action for damages against shareholders. If after a corporation has wound up its business, paid its debts and distributed its capital among its shareholders the latter should reorganize, appoint new agents and incur new debts, they could not be held liable in the character of shareholders for such indebtedness, but could be reached in an action for any loss occasioned by their fraud if brought by a party actually imposed upon and misled by their conduct. So in any case of misrepresentation or fraudulent and wrongful acts with respect to capital on the part of shareholders, agents or others, an action would lie for any resulting loss in favor of the injury party.3 1 Magee v. N. P. C. R. R. Co., 78 Cal. 430. 2 Looman v. Brockway, 3 Robertson, 74; 28 How. Pr. 472. See Ill. Cent. R. R. Co. v. Jewell, 46 Ill. 99. 8 Schley v. Dixon, 24 Ga. 273, 277, 278; See also, Moses v. Ocoee Bank, 1 Lea. (Tenn.), 399, 405; Best v. Thrall, 79 N. Y. 15; Walker v. Reister, 102 U. S. 467; Freeman v. Stine, 15 Phila. 37, 44; Stratton v. Lyon, 53 Vt. 130. § 951. Debts ex contractu and liabilities founded on torts given an equal footing.-There is no distinction made between creditors in the ordinary acceptance of that term and those to whom a corporation is liable by reason of torts of its agents. The latter have the same right and may resort to the same remedies against the stockholders for unpaid capital as the former; but it would be necessary where the damages arising from the commission of a tort were of an unliquidated character, to first obtain a judgment at law before proceeding in equity directly against the shareholder.1 § 952. Tort committed after expiration of term of existence. Under a statute providing that after the term of existence of corporations had expired or it had been dissolved" its property and assets should remain under the direction of the board of directors or of a receiver who might be appointed, and that suits might be brought and defended **** in the corporate names," it was held that an action would lie against a corporation for a tort committed after the expiration of its charter and while it was in the hands of the trustees for the creditors and stockholders. The reason given was that such corporation had not ceased to exist in fact as well as in law.2 The correctness of the decision in this case may well be doubted. The trustees do not represent a living corporation after its term of existence limited by statute has expired, but only its estate. They are not its agents but are trustees for those interested in its estate, creditors and shareholders. While the estate 1 Supra, §§ 909, 910. 2 Miller v. Newburg Oriel Coal Co., 31 W. Va. 836; 25 Am. & Eng. Corp. Cas. 460. See also Dudley v. Cheshire Glass Co., 15 Gray 494; Empire Mfg. Co. v. Stuart, 46 Mich. 482; Imboden v. Etowah &. B. B. Min. Co., 70 Ga. 86. |