proached the bend, and they stopped before reaching plaintiff. The court, speaking through Mr. Justice Grant, said: "Defendant's servants in charge of the cars were not under obligations to immediately stop them. They had fulfilled their duty by commencing to run more slowly. If such companies were obliged to stop their cars at that distance upon seeing a horse, with his owner holding him by the head, in apprehension of fright, or in actual fright, they could not meet the demands or the requirements of public travel. The defendant had an equal right to the use of the street with its cars as plaintiff with his horse. Each was bound to exercise due care and caution; and this the defendant did. It was evidently the sight of the moving cars, not their speed, that frightened the horse. They were from 150 to 200 feet distant when plaintiff and his horse went over the sidewalk into the common. It is difficult to see how the defendant's servants were under any legal obligation to act differently from what they did.""

§ 85. Certain Evidential Matters.-It has been held that, in an action for damages sustained by being thrown over a telephone wire, it is competent to show that defendant, shortly after the accident, changed its line at the spot, making it higher.' It has been also held competent in such a case to give evidence as to the height of the wire on the Sunday before the accident. On the other hand, the fact that others, with loaded wagons equally high, passed under the wire without injury, did not, in the opinion of the court, raise a presumption of negligence

1 Cornell v. Detroit, etc. R. Co. (Mich.), 46 N. W. Rep. 791. 2 Pennsylvania Tel. Co. v. Varnau (Pa.), 15 Atl. Rep. 624.

3 Ibid.

on the part of deceased.' On the trial of an action against a telegraph company, for negligence in permitting telegraph poles to fall and suspend the wires across a highway, where a question is raised as to the soundness of the poles, it is error to admit evidence of the condition of other poles forty or sixty rods away, without any evidence to show that they were of the same kind, put up at the same time and equally exposed.'

1 Pennsylvania Tel. Co. v. Varnau (Pa.), 15 Atl. Rep. 624.

" Western Union Tel. Co. v. Levi, 47 Ind. 552.

ARTICLE III.-INJURIES TO THEIR OWN EMPLOYEES.

SECTION.

89. Injuries to the Company's Servants.

90. Servant Injured through Patent Defect not Obviously Dangerous. 91. Injuries through the Contributory Negligence of the Servant. 92. Injuries to Workmen through Negligently Turning on the Current.

93. Injuries to Workmen by Reason of "Live" Wires Sagging upon "Dead" Wires.

94. Averring One Kind of Negligence and Recovering on Another. 95. Breaking of Elevator of Electric Light Tower.

§ 89. Injuries to the Company's Servants.Whatever may be the principle applicable in case of injuries by such companies to strangers, it is clear that where the injury is to one of their own servants, they are liable, if at all, on the principle of negligence, and not then if the servant has been guilty of negligence materially contributing to the injury. The principles which must determine the question of such liability are laid down in the leading treatises on the law of master and servant and the law of negligence. These principles are: 1. That a servant, on entering into the service of his master, impliedly takes upon himself the risks actually incident to the business. These risks include: The risk of injury from the negligence of fellowservants. b. The risk of injury from patent defects and imperfections in the machinery and

a.

appliances supplied to him for the prosecution of his work. 2. 2. On the other hand, the master is bound to exercise reasonable or ordinary care in the selection of other servants who are to work with the particular servant, so that they are reasonably careful and skillful and otherwise fit and proper. 3. He is bound to exercise the like care in the selection and inspection of the machinery and appliances with which the servant is required to work.' It may sometimes, though rarely, happen that the breakage of the appliance itself may be evidence of negligence on the part of the master, on the principle res ipsa loquitur. Where a lineman was putting up a telegraph wire, when both the wire and the cross-arm broke, and the lineman was thrown to the ground and killed, and there was no positive evidence that the materials were carefully selected by the company, and the evidence as to their actual soundness was conflicting, it was held that their breaking was evidence of negligence, and a judgment against the company was sustained.'

§ 90. Servant Injured through Patent Defect not Obviously Dangerous.-Patent defects in the appliances given the servant with which to work, not obviously dangerous, are placed by just views of the law among the ordinary risks of the service which he impliedly assumes. Thus, an employee of an electric light company, of mature age and ordinary mental capacity, who is injured by reason of a defective ladder, one rail of which was broken off near the top, both master and servant knowing

1 Consult 2 Thomp. Neg. 969, et seq., and other works on Negligence, and on the law of Master and Servant.

2 Clairain v. Western Union Tel. Co., 40 La. An. 178; s. c., 3 South. Rep. 625.

of the defect, and neither regarding it as dangerous, cannot recover damages therefor from the company.

§ 91. Injuries through the Contributory Negligence of the Servant.-In accepting the risks of a highly dangerous employment, the servant impliedly agrees to exercise, for the promotion of his own safety, that degree of care which is suggested by the degree of the danger; and if he is injured in consequence of failing to exercise such care, he cannot justly cast the liability upon the master. This is well illustrated by a recent case in Virginia, where it appeared that deceased, a servant of an electric light company, was sent to look for a break in the circuit while the current was on, and took with him a defective shunt-cord; that he discovered the break, and, in attempting to turn on the current, grasped the shunt-cord at its defective end, and at the same time put his other hand on the exposed end of the line wire, whereby the current passed through him and killed him; and that, had he grasped the line wire above the exposed end, he would not have been injured. It was held that, as the evidence failed to show negligence on the part of the defendant, unmixed with the contributory negligence of the deceased, the defendant was not liable.'

§ 92. Injuries to Workmen through Negligently Turning on the Current.-If a workman employed by an electric light company is sent to fix a lamp at an hour in the day-time when the current is regularly turned off, and if through negligence, and without giving him warning, the current is turned on at an

1 Jenney Electric, etc. Co. v. Murphy, 115 Ind. 566; s. C., 18 N. E. Rep. 30.

2 Piedmont Electric, etc. Co. v. Patterson, 84 Va. 747; s. C., 6 S. E. Rep. 4.