master knew, or ought to have known of his subsequent unfitness.5

Where the business is of such a nature as to require supervision and regulation by reason of its complicated or dangerous nature, it becomes the duty of the master to make such reasonable rules and regulations for the government of the men and the conduct of the business as is reasonable under the circumstances, and calculated to insure the safety of the employees. In a leading case it is said: "The individual who employs two laborers to dig a ditch is not required to stand over them to give warning, or to prevent one from throwing earth upon another. Neither is he required to employ a watchman to give warning to the other when the one is about to throw a shovelful of earth into or out of the trench. There is no occasion for such a precaution, not because the rule of law is different, but because ordinary care does not demand it in such a case. As the number of servants is enlarged and the work extended, the probability of injury of one by the other is increased. When the nature of the work reasonably demands rules or precautions, the master's duty arises. The master's duty is performed by the adoption of a reasonably suitable method. If ordinary care requires that a warning of dangers arising from the work should from time to time be given to his servants as the work progresses, it is the master's duty to provide for such a warning. Having

5 Mich. Cent. R. Co. v. Gilbert, 46 Mich. 176; Lyberg v. No. Pac. R. Co., 39 Minn. 15; Wust v. Erie City Iron Wks., 149 Pa. St. 263.

made provision for the warning by entrusting the duty to a competent person, he is not liable for the negligence of the person entrusted with the duty." But other cases hold that the negligence of the person entrusted with this duty, is not the negligence of a fellow-servant, and that the master would be liable if he neglected to perform it."

While it is the duty of the master to repair any defective machinery, or remove any known risk or peril which has arisen in the employment, and which is not an incident to the work assumed by the servant, yet, if the servant also knows of the defect or danger and continues to work without protest, he is held to assume the new risk also. But in such a case, if the master promises to repair the defective appliance or remove the danger, the servant in reliance upon this promise may continue in the employment for a reasonable time at the master's risk. What would be a reasonable time in such cases is a question of fact for the jury, and to be determined according to the facts and circumstances of the particular case, varying from a few days to a much longer time. Where the danger is obvious, or such that a

8

6 McLaine v. Head, etc. Co., 71 N. H. 294, 58 L. R. A. 462. 7 Belleville Stone Co. v. Mooney, 61 N. J. L. 253; Western Elec. Co. v. Hanselman, 136 Fed. 564; Sroufe v. Moran Bros. Co., 28 Wash. 381.

8 McFarlan Carriage Co. v. Potter, 153 Ind. 107; Erdman v. Ill. Steel Co., 95 Wis. 6; Rothenberger v. N. W. Consol. Milling Co., 57 Minn. 461; Anderson v. Seropian, 147 Cal. 201.

9 Smith v. Backus L. Co., 64 Minn. 447; Gunning System v. Lapointe 212 Ill. 274; Stephenson v. Duncan, 73 Wis. 404.

prudent man would not incur it, the servant will not be protected if he continues to use the appliance relying upon the master's promise to repair.10 In Gunning System v. Lapointe,' it is said: "From a careful review of the authorities, we are disposed to the view that where the servant finds that the machinery with which he is to work is out of repair and dangerous to work with, or that the place in which he is to work is dangerous, he may complain to the master and exact from him a promise to repair, and if the defect is not such as to so endanger the person that a reasonably prudent man would not continue to work with the machinery or in the place assigned, the servant may continue the work under the promise to repair, without being held, as a matter of law, to have assumed the risk. If the promise is to repair by a fixed time, then after the expiration of the time fixed the servant assumes the risk of the defects complained of. If the promise to repair is without fixing the time within which the repairs shall be made, the servant may continue the work for a reasonable time, taking the character of the defect in consideration, within which the repairs could or ought to be made, and at and after the expiration of such reasonable time within which to make the repairs, if they are not made and if the defects are open and known to the servant and no new promise to repair is made and the servant continues the work, he assumes the risks incident to the defects, of which he complained."

10 Virginia, etc. Co. v. Harris, 103 Va. 708; Meador v. Ry. Co., 138 Ind. 290; 212 Il. 274.

1 Gunning System v. Lapointe, 212 Ill. 274, 280.

When a suit has been brought against the master by a servant to recover for negligence on the part of the master as to any of the duties we have been discussing, 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.2

2 Montgomery Coal Co. v. Barringer, 218 Ill. 327; Welsh v. Cornell, 168 N. Y. 508; Pingree v. Layland, 135 Mass. 398; Sack v. Dolese, 137 Ill. 129; Kansas City R. R. Co. v. Ryan, 52 Kan. 637. The servant must himself be free from contributory negligence, a subject to be discussed in a succeeding chapter.

CHAPTER IV.

REDRESS FOR NEGLIGENCE-CONTRIBUTORY NEGLIGENCE, ETC.

Sec. 401-67. OF THE GENERAL PRINCIPLES GOVERNING REDRESS FOR NEGLIGENCE.-As redress for negligence is based upon the failure to perform some duty imposed by society upon the individual or group under the circumstances of the case, in an action for the purpose of securing redress certain facts must be charged and shown to exist in order that a recovery may be had. These requisites are stated as follows by Judge Cooley: "1. The first requisite in establishing negligence is to show the existence of the duty which it is supposed has not been performed. There can be no negligence unless there is a duty which has been violated. 2. The duty being pointed out, the failure to observe it is to be shown; in other words, the existence of negligence. This is an affirmative fact; the presumption always being, until the contrary appears, that every man will perform his duty."

3

Cooley on Torts, 791, 794, citing, Martin v. Railway Co., 55 Ark. 510; Smith v. Clark Hardware Co., 100 Ga. 163; Baltimore, etc. Ry. Co. v. Cox, 66 Ohio St. 276; W. Va., etc. Ry. Co. v. State, 96 Md. 652; Hughes v. Boston, etc. R. Co., 71 N. H. 279; Faris v. Hoberg, 134 Ind. 269. In the last case it is said: "In every case involving actionable negligence, there are necessarily three elements necessary to its existence. 1. The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains. 2. A failure by the