a duty to each of his servants to exercise due care in providing a sufficient number of suitable, efficient fellow-servants. The master's duty "to provide reasonably safe instrumentalities embraces the obligation to provide a sufficient number of servants to perform the work safely; proper and sufficient help and assistance are as essential in the performance of the servant's duty, where not safely performed alone, as safe instrumentalities, and the law enjoins upon the master the duty of providing them."39 The duty to provide suitable fellow-servants, sufficient in number to do the work safely, requires care proportionate to the danger that would result from the employment of incompetent or unskillful employees. And it cannot be avoided by assignment, nor excused by ignorance.1o The care to be exercised by the master in employing a servant is in proportion to the danger to others arising from incompetence and unskillfulness. "Where the service in which the servant is employed is such as to endanger the life and persons of coemployees, upon the plainest principles of justice and good faith, the master, upon engaging such servant, should be required to make reasonable investigation into his character, skill and habits of life" for the protection of such co-employees. The master is required to exercise ordinary care in the discharge of this duty, such as reasonably prudent persons would use under like circumstances.42 39 Peterson v. American etc. Co., 90 Minn. 343. 40 Cooley, Torts (2d ed.), p. 660. 41 Western Stone Co. v. Whalen, 151 Ill. 472. 42 Washington etc. R. v. McDade, 135 U. S. 554. 41 "Incompetency exists, not alone in physical or mental attributes, but in the disposition with which a servant performs his duties; if he habitually neglects these duties, he becomes unreliable, and, although he may be physically and mentally able to do well all that is required of him, his disposition toward his work and toward the general safety of the employer's work and his fellow-servants makes him an incompetent man. 9943 If due diligence has been used in selecting a servant, subsequent facts disclosing unfitness must be brought actually or constructively to the master's notice before he will be deemed negligent in continuing the servant in the employment. But a servant originally competent, having become incompetent for any reason, will make his master liable for his acts injurious to other servants, where the master knew, or ought to have known, of his subsequent unfitness. After the master has such knowledge he is bound to dismiss the incompetent servant.45 46 If an employee know or learn that his fellow-servant is incompetent and continue in the employment without objection, he is commonly held to take the risk of such incompetency. It is otherwise if he does not know. While it is the master's duty to employ a sufficient number of efficient co-servants, his failure so to do may be so patent a risk that the 43 Coppins v. New York etc. R., 122 N. Y. 557. Evidence of the servant's reputation for unfitness is competent, Chicago etc. R. v. Sullivan, 63 Ill. 293. 44 Park v. New York etc. R., 155 N. Y. 215. 45 Michigan etc. R. v. Gilbert, 46 Mich. 176; Lyttle v. C. &. W. M. Railway Co., 84 Mich. 289. 46 Davis v. Detroit & Milwaukee R. Co., 20 Mich. 105. 47 servant may be considered to assume it by continuing in the business, unless justified in believing he may so continue safely. In some jurisdictions it is said "the law does not prescribe a rule so inflexible or unwise as that a servant must forthwith * * * * * or immediately quit the service of the master, upon the discovery * that he is working by the side of a negligent fellow-servant, upon the pain of conferring immunity upon the master for all liability for an injury incurred in consequence of such * incompetency. The true test in all such cases is, whether a person of ordinary prudence, acting with such prudence, would, under all circumstances, have refused to incur the risk."48 * (5) Warning of danger. Under certain circumstances it is the duty of the master to warn his servants of dangers incident to the employment. "Where the master knows, or, had he used due care, would have discovered, that the employment is dangerous, and has reason to believe that his servant does not know the danger, and will not discover it in time to protect himself from injury, he is under a legal duty to give proper warning and instructions to the servant. The warning should be one and the instructions should be such as are suited to the circumstances of the particular case. If the servant is young and inexperienced, the instructions should be more minute than in the case of an adult, and especial care should be taken to make them intelligible. "49 47 Thorpe v. Missouri etc. R., 89 Mo. 650. 48 Norfolk etc. Ry. v. Ampey, 93 Va. 108. 49 Burdick, Torts, p. 168. 16. Keeping things safe. After a master has supplied a safe place to work and suitable appliances, the place and the appliances may become unsafe by reason of the negligence of the servants using them. When this happens, the master is ordinarily not liable for the injury. For example, if the master supplies a safe engine, but the engineer in charge fails to put water in the boiler, whereby it explodes and injures a fellow-servant, the master is not liable; or, if the master supplies suitable ropes for a derrick and extra ropes to replace ropes as they wear out, and the servant fails to put in new ropes when needed, the master is not liable to a fellow-servant for an injury sustained by such omission. The distinction between supplying suitable appliances and keeping such appliances safe after they are supplied is well recognized, but it is not always easy to draw the line between the two. In Jaques v. Great Falls Mfg. Co.50 the court said: "In many kinds of service the care and keeping of tools and machinery in a condition of safety require merely the attention and repairs occasioned by ordinary use and wear, and are properly a part of the regular business of the servant engaged in the use of such tools and machinery. In such cases the employer's duty is performed by furnishing safe tools and machinery and the means of making needed repairs, and the duty of making repairs may be entrusted to servants, and any neglect in the performance of this service is the negligence of a servant. But in cases where skill and practical knowledge are 50 66 N. H. 482. required in keeping machinery in a reasonable condition of safety, beyond what is needed in operating it, it is the employer's duty to supply the necessary intelligence, skill, and experience in the care and inspection of the machinery to protect the servant from injury; and for any failure to exercise proper care and skill the employer is accountable." If a place at which a servant is set to work has been made dangerous prior to the servant's employment by the negligence of those whom his employment makes fellow-servants, such servant does not assume the risk of such negligence, if the danger is not obvious.51 If one servant is injured by reason of an improper use by his fellow-servant of a proper machine or appliance, he cannot recover against the master. Where a servant patched up a ladder in a negligent way, whereby another servant was injured, the master was held not liable.52 17. Vice-principal doctrine.—The duties enumerated in § 15 are sometimes said to be non-assignable or inalienable. That is, the master cannot escape liability for the non-performance of them by delegating to someone else the duty of performance. These duties he must perform with due care and diligence. He may perform them by his own hand or by the hand of another. In fact, he may designate one of his ordinary servants to perform them for him. If he does so, such servant stands in the place of the master and is called the vice-principal. This is because he is performing the master's non-assignable 51 Simone v. Kirk, 173 N. Y. 7. Contra, O'Connor v. Rich, 164 Mass. 560. 52 Higgins v. Higgins, 188 Mass. 113. |