for the work of the servants who are engaged in the general employment, and further, to exercise reasonable care, by means of inspection and repairs, when needed, to keep the plant and appliances reasonably safe.' "99

4. To furnish safe appliances.10

5. To warn of danger.

The master must warn his servants and give them suitable instructions where he knows that the employment is dangerous or would discover it with due care, and where he has reason to believe that the servant does not know of the danger and would not discover it. The master's duty is to do "what a prudent master would naturally do."

If the master has properly performed all of these duties he cannot be held liable for injuries to a servant arising “out of and in the course of his employment." The test of performance in each instance is relative; there must be a reasonable compliance with the duty, taking into consideration the circumstances, the nature of the business, and the usual methods of conducting it. "Reasonably safe means safe according to the usages, habits, and ordinary risks of the business.' In no case is the master deemed to be

9

Smith v. Erie Ry. Co., 67 N. J. L. 636, quoted by Burdick. 10 V. supra, under third duty of master.

11 Titus v. Bradford, etc., Ry., 136 Pa. 618, quoted by Burdick. Italics not in original.

a guarantor of the safety of his employees; his duty extends only to the exercise of proper diligence. These duties are, however, personal and the master can not relieve himself of responsibility for their performance by delegating them to another.

Proof of Liability.-The servant, in order to recover damages for a personal injury, has the burden of proof of two points: first, that the master failed to exercise due care in the performance of his duties; and second, that his failure was the proximate cause of the injury. To establish the first point it must be shown that one or more of the requirements of due care, as outlined above, has not been complied with; to establish the second, it is necessary to show that the absence of due care operated efficiently through an unbroken chain of events to produce the injury complained of.

In an action brought by a servant to recover damages for personal injury the master may avail himself of certain well-defined defenses. He may allege that the servant assumed the risk of his injury, that the injury was caused by the negligence of a fellow-servant, or that the plaintiff contributed negligently to its occurrence. The principles governing these defenses have been embodied in three legal doctrines; the doctrine of assumption of risk, the doctrine of common employment, and the doctrine of contributory negligence.

Assumption of Risk.-Under the doctrine of assumption of risk it is held that a master is not liable to his servant for injuries resulting from the ordinary risks of employment of which the servant is fully

aware. "The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services. 99 12 While the principle of this doctrine is not peculiar to the relation of master and servant, it is most frequently used in actions involving that relation, and some courts have held that assumption of the risks of employment is an implied term of the contract of service. In certain states the doctrine has been applied to relieve the master of liability arising from actual negligence or from violation of statutes requiring the installation of safety devices where it could be shown that the servant had knowledge of the master's conduct.13

Common Employment.-The doctrine of common employment or the "fellow-servant rule" relieves the employer of liability if he can show that the accident on account of which damages are sought was the result of negligence on the part of a fellow-servant of the injured employee. In its most extreme form it is applied to all servants working for the same master, regardless of the nature of their duties. The doctrine was suggested in the decision in Priestly v. Fowler,14 an English case, but was first definitely stated in Mur

12 Farwell v. B. & W. R. R. Corp., 38 Am. Decis. 339 (1842). 13 The master, however, is generally held liable for injuries arising from a defect which he has promised to remedy, for a reasonable time after the promise is made.

14

3 M. & W. 1 (1837). The decision of the point at issue in this case did not involve the application of the fellow-servant rule.

ray v. South Carolina Railroad Co.15 in 1841. In this case a fireman brought suit for injuries caused by the negligence of an engineer who refused to alter the speed of the train, even after his attention had been called to an obstacle on the track which gave rise to the accident. In his opinion Justice Evans asserted that the plaintiff assumed the risk of the negligence of his fellow-servants and he was not allowed to recover damages. There was, however, a very strong dissenting opinion.

While the South Carolina decision stands first in point of time, the case of Farwell v. Boston and Worcester Railroad Corporation 16 has become the leading case both in this country and in England. Chief Justice Shaw stated in his opinion that the rule that a master should be liable for the acts of his servants presupposed that the master and the person injured "stand to each other in the relation of strangers"and that therefore Farwell, an engineer, could not recover on the ground that the corporation was responsible for the acts of a switch-tender by reason of whose negligence it was alleged he had been injured. If liability was to be proved it must be shown that there was a contract of indemnification, express or implied. But the court held that the assumption of the ordinary risks of the business by the servant was an implied term of the contract of employment, the compensation, “in legal presumption," being adjusted accordingly; and that the risk of a fellow-servant's negligence was an ordinary risk of the

employment. "We are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any others."

Whether this rule is an exception to the doctrine of respondeat superior or a perfectly natural and logical application of the doctrine of assumption of risk is a mooted point. It is sufficient to note that it is applied only to the relation of master and servant.

Contributory Negligence.-Under the older doctrine of the common law one who was injured by the negligence of another was nevertheless barred from the recovery of damages if he had, by his own negligence, in any way contributed to the occurrence of the injury. The present doctrine is less harsh, but contributory negligence will still bar recovery if it is a direct cause of the injury.

Burden of Proof.—In an action to recover damages from a master on account of injury the burden of proof is on the plaintiff to show:

1. That the master was negligent in the performance of his legal duties.

2. That the negligence of the master was the proximate cause of the injury.

3. If the injury was caused by the negligence of