to rescue a fellow-servant imperiled by the master's negligence.62

24. Effect of master's promise to remedy.-The general rule is that if a servant notifies the master, or the master is otherwise apprised of a defect or danger, and the master gives the servant to understand that the matter will be remedied, the servant may wait a reasonable time for this to be done and not thereby lose his rights. Hence, if a master promises to discharge an incompetent co-servant or employ a sufficient number of co-servants, the endangered employee may continue in his employment a reasonable time thereafter at the master's risk.63 Such promise by the master generally operates to neutralize an assumption of risk, and if in the particular case the master's business is entrusted to another, the assurance of such other person is that of the master; but the rule is otherwise, as we shall see, as to the assurance by any mere subordinate servant.64

25. Contract relieving master.-Whether the servant may specially contract to waive the benefit of this rule, is disputed. For a breach of any of the personal, non-assignable or statutory duties the master is liable in damages to the injured servant, and it is generally held that he may not contract beforehand with the servant for release from liability for his own or a co-servant's neglect. Even an express agreement when made is considered void as against

62 Saylor v. Parsons, 122 Iowa 679.

63 Maitland v. Gilbert etc. Co., 97 Wis. 476.

64 Ft. Wayne etc. R. v. Gildersleeve, 33 Mich. 133.

public policy. In some states the statutes themselves expressly forbid such contracts. These, of course, control.

66

26. Burden of proof.-When a suit has been brought against the master by a servant to recover for negligence on the master's part as to any of the duties discussed, the burden of proof is upon the servant to show that the injury resulted from such negligence, and that the negligence was the proximate cause of the injury. The servant must himself be free from contributory negligence.67 When the injured and offending employees are in the same common service, they are presumably fellow-servants within the general rule of assumed risk, and the burden is on the plaintiff to show differently.68 It rests on the plaintiff to show the master's negligence in employing or retaining the servant whose wrongdoing caused the injury. That the master had notice or knowledge or by exercising ordinary care might have known of the incompetency is sufficient. Notice to one empowered to hire, discharge or suspend employees, is notice to the employer, otherwise to a mere superintendent; and mere proof of specific careless acts is insufficient to charge the master with such knowledge; and mere laziness or a single negligent act is not generally enough to show a servant incompetent."9

65 Lake Shore & M. S. Railway Co. v. Spangler, 44 Ohio St. 571; Chicago etc. R. v. Maroney, 170 Ill. 520.

66 Montgomery Coal Co. v. Barringer, 218 Ill. 327.

67 See § 23.

68 Chicago etc. R. v. Leach, 208 Ill. 198.

69 National etc. Co. v. Travis, 102 Tenn. 16.

27. Wrongdoing servant's liability.-If one servant by negligence in his employment injures a fellow-servant he is liable to the latter for damages caused thereby.70 A wrongdoing servant is liable, moreover, to the master for damages the latter has to pay for the former's negligence, except where each is a tort-feasor." Some cases limit liability to misfeasance. But most states include negligent nonfeasance.72

28. Statutory changes.-The duties outlined in the foregoing sections have been made the subject of statutory enactment. In Union Pac. R. Co. v. Erickson,73 it is said: "When the law of fellowservants was first announced, business enterprises were comparatively small and simple. The servants of one master were not numerous. They were all engaged in the pursuit of a simple and common undertaking. Now things have changed. Large enterprises are conducted by persons or by corporations employing vast numbers of servants divided into classes, each pursuing a different portion of the work, and each practically independent of the other. The old reasons do not apply to the new conditions." The master's liability to one servant for another servant's negligence has been much enlarged by statutes; these are sometimes general in their nature and sometimes applicable only to railroads. By statute in several jurisdictions the "superior officer" test is made a part of the positive law. The so-called

70 Osborne v. Morgan, 130 Mass. 102.

71 Georgia etc. R. v. Jossey, 105 Ga. 271.

72 Murray v. Usher, 117 N. Y. 542.

73 41 Neb. 1.

"employers' liability acts" make the master liable for the negligence of any employee having and exercising superintendence, or to whose orders or directions the workman at the time of the injury was bound to and did conform, and of any employee having charge and control of any signal, switch, locomotive engine, train, etc., on any railroad. In some states the acts apply only to railroads; in others, the entire rule is abolished or materially modified.

29. Same subject.—The first railroad employers' liability law was enacted in Georgia in 1855, and has been re-enacted, modified and extended in many other states. The first general act was the English Employers' Liability Act passed in 1880, providing in substance that when personal injury is caused to a workman by reason of (1) any defect in the condition of the ways, works, machinery or plant connected with or used in the employer's business, which defect arose from, or had not been discovered or remedied owing to, the employer's negligence or that of some one in his service entrusted by him with seeing that the ways, etc., were in proper condition, or (2) the negligence of any one in the employer's service who has any superintendence entrusted to him, while exercising such superintendence, or (3) the negligence of any one in the employer's service to whose order or directions the workman at the time of the injury was bound to and did conform, such injury resulting from such conformance, or (4) the act or omission of any one in the employer's service done or made in obedience to the employer's rules or by-laws or to particular instructions given by

any one delegated with the employer's authority in that behalf, the injury resulting from some impropriety or defect in the rules, by-laws, or instructions, or (5) the negligence of any one in the employer's service who has charge and control of any signal points, locomotive, engine or train upon a railway; in each case, the injured workman shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work, unless the workman knew of the defect or negligence which caused the injury, and failed within a reasonable time to give or cause to be given, information thereof to the employer, 'or some person superior to himself in the employer's service, unless he was aware that the employer or such superior already knew of such defect or neglect. Limitations are fixed as to the time within which action may be brought and as to the amount recoverable. This act has been re-enacted in many states.74

30. Master's own negligence.-It must be remembered in applying the fellow-servant rule, that where negligence of the master, or of one for whose conduct he is answerable, concurs with that of one related as fellow-servant to the party injured, and the negligence of the master or his representative is a proximate or efficient cause of the injury, the master will be liable, notwithstanding the fellow-servant's concurring negligence. The fellow-servant doctrine only

74 For a full discussion the reader is referred to Reno, Employers' Liability Acts. The cases almost uniformly hold that such acts are constitutional.