In damages to his servant. These torts uuiy be either negli-

gent or wilful. If negligent, they may be either operative

acts or omissions, or acts or omissions connected with the per-

formance of one of the non-assignable duties heretofore

enumerated.

В§ 281. Negligent operative act.

If the master is working with his servants in operating the

machinery of the service, he is liable for any injury to them

arising from his negligence. He is not a fellow-servant when

so engaged. Any representative of his, however high in rank,

may become a fellow-servant if engaged in an operative act,^

but not so the master himself. It is no part of the implied

contract of a servant to assume any risk as to the master's

negligence under any circumstances. It follows that a

servant may recover for any injury due to the master's

personal negligence.^ If the master is a partnership, the

negligence of one partner is the negligence of all.^ If the

master's negligence united with the negligence of a fel-

1 Crispin V. Babbitt, 81 n. Y. 516.

* Lorentz v. Kobinson, 61 Md. 64.

8 Ashwortli r. Stanwix, 3 El. & El. 701.

TO SERVANTS FOR HIS OWN TORTS. 351

low-servant causes the injury, the master is liable, provided

his negligence is a proximate concurring cause.^

В§ 282. Negligent performance of non-assignable duties.

The non-assignable duties of the master have already been

enumerated.^ The master is bound to use due care in the

performance of these duties and is liable to a servant injured

In consequence of his failure to do so. If he negligently fails

to furnish a safe place to work or safe instrumentalities, or a

sufficient number of competent servants, or suitable rules and

regulations, or proper warning of extraordinary risks, or proper

Inspection, he is liable to any servant injured in consequence

of such negligent failure.^ These are personal duties, and,

whoever may be delegated to perform them, the law always

treats the case as if the master were personally performing

them. The degree of care required of the master in the dis-

charge of these duties is said to be ordinary care, that is the

care which reasonably prudent men would use under like cir-

cumstances.* This is so in the case of railroad companies,^

although as to passengers they are bound to use the utmost

care that human vigilance makes possible.^ Accordingly the

master is not bound to provide the very best or most approved

appliances, but only those which are reasonably fit and safe,'^

Conformity to the usage of other similar employers does not

of itself conclusively show due care.^ Having supplied them

he is not liable if a fellow-servant negligently fails to use them

or to use them properly.^ So if it is a part of the servant's own

1 Cone V. Delaware, &c. R., 81 N. Y. 206 ; Ellis v. New York, &c. R.,

95 N. Y. 546 ; Franklin v. R. Co., 37 Minn. 409.

2 Ante, В§ 276.

^ Cases cited in В§ 276, ante.

* Washington, &c. R. v. McDade, 135 U. S. 554 ; Painton v. Northern

Cent. R. ; 83 N. Y. 7 ; Probst v. Delamater, 100 N. Y. 206.

5 Chicago, &c. R. v. Kerr, 148 III. 605.

6 Carroll v. Staten Is. R., 58 N. Y. 126 ; Palmer v. Delaware & H. C.

Co., 120 N. Y. 170.

' Harley ;;. Buffalo, &c. Co., 142 N. Y. 31 ; Conway v. 111. Cent. R.,

50 Iowa, 465.

8 Wabash Ry. v. McDaniels, 107 U. S. 454.

В» Harley v. Buffalo Car Mfg. Co., 142 N. Y- 31.

3.j2 liability of master

duty to construct for himself a scaffold or other apj)liance, and

suitable material is furnished for this purpose, the master is

not liable if it is improperly constructed/ whereas he would

be liable if he supplied the scaffold to the servant ready con-

structed for the latter's use.*^ In the employment of fellow-

servants, the master is bound to use reasonable care and

diligence to select those who are competent and reliable and

not to continue in the em[)loymcnt those who are unfit or

unreliable.^ 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 employ-

ment."* The master must also use due care to have a suffi-

cient number of competent servants.^ The same rule of

due care applies in the promulgating and enforcing suitable

rules for the government of the service,^ giving warning of

unusual or extraordinary risks,^ though in the latter case

it seems actual notice, and not due care to give notice, is

the requirement.^ So also due care is the test as to inspec-

tion and oversight of a])plianccs and servants.^

В§ 283. Assumption of risk.

The doctrine that the master is liable to the servant for

the negligent failure to perform any one of the personal or

1 Hogan V. Smith, 125 N. Y. 774; Marsh v. Herman, 47 Minn. 537.

s Manning v. llogan, 78 N. Y. C15. Cf. Benzing v. Steinway, 101 N. Y.

547.

3 Laning v. N. Y. Cent., &c. R., 49 N. Y. 521 ; Chapman v. Erie R.,

55 N. Y. 570 ; Cameron v. N. Y. Cent., &c. R., 145 N. Y. 4U0 ; AVabash

Ry. V. McDaniels, 107 U. S. 454.

* Whittaker r. Delaware, &c. R., 126 N. Y. 544; Cameron v. N. Y.

Cent., &c. R., 145 N. Y. 400 ; Park v. N. Y. Cent., &c. R., 155 N. Y. 215.

Some states permit evidence of general reputation for incompetency.

6 Flike V. Boston, &c. R., 53 N. Y. 549 ; Pennsylvania Co. v. McCaf-

frey, 130 Ind. 430.

6 Slater v. Jewett, 85 N. Y. Gl; Abel v. Delaware, &c. Co., 103 N. Y.

581, 12S N. Y. GC2.

7 Mather v. Rillston, 156 U. S. 391; Fox v. Peninsular Lead Works,

84 Midi. 076.

8 Wheeler v. Wason Mfg. Co., 135 Mass. 294.

В» Byrne v. Eastmans Co., 163 N. Y. 461.

TO SERVANTS FOR HIS OWN TORTS. 353

non-assignable duties, is subject to the qualification that the

servant may voluntarily assume the risk arising from such

failure.! By the contract of employment the master ordi-

narily assumes the risk as to the performance of these duties

and the servant assumes all the other risks of the service.^

But if, at the time the contract is made and the servant

enters the employment, he knows and fully comprehends

that the conditions then existing increase his risks ^beyond

those which, in the absence of such knowledge, he would

otherwise expect to encounter, he is said to voluntarily as-

sume the added risks and the master is relieved to that

extent of the risks which he would otherwise be deemed to

undertake.* The implied terms as to the risks are modified

by the actual facts known and appreciated by the servant at

the time of making the contract, or, to state another reason

for the same result, the servant cannot recover damages for