Page:Federal Reporter, 1st Series, Volume 9.djvu/358

O'KEIL V. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO. 343 �defects unknown to the master and not discoverable in the exercise of ordinary diligence, the master js not resppnsible. Fifleld v. NorlTiei-n R. Co. 4:2 N. H. 226; Ormond v.Holiand^M., BI. & El. 102 ; L.R.db F. 8. Ry. Co. v. Dfiffey, 35 Ark. 602;' Qalveston, eto. R. Co. v. Belahunty, 53 Tex. 206; Flynn v. Beebe, 98 Mass. 575; Zadd v. New Bedford R. Co. 119 Mass. 412; Qibson v. Pauiflc R. Co. 46 Mo. 163. �The master is not bound to use only the safest and best machinery. That is, aside from the legal effect of the servant's knowledge of therisk, it is not negligence j)ej' s? in the master to continue the use of machinery or materiala knowfl by him tp ,be less safe than other wachinery or materials he might use for the same purpose. Thus, in Wonder v. Baltimore, etc., R, Co. 32 Md. 411, wh^re it was sliown that the plaintiff, a brakeman, would not have been injured had a certain improved brake been used, the court said: "A. master is not bound to change bis machinery in order to apply every new invention or sujcosed improvement in appliances, and he may even have in use a machine or an applianoe for its operation shown to be less safe than another in general use, without being liable to his servants for the consequences of the use of it." ^iohigan C. R. Go. v, Smithson, 7 N. W. Kep. 791; Bayden y. ^mithville Manyfg Co. 29 Conn. 548; Fort Wayne, etc., R. Co. v. Qildersleeve, 33 Mich. 133 ; Smith v. 8t. Louise etc., R. Co. 69 Mo. 32 ; Cooper v. Central R. Co. 44 lowa, 134. On the other hand, it was held in St. JOouis, etc., R. Go. v. Valtrius, 56 Ind. 511, that it was negligence in a railway company to use cars dangerous in construction whep it could procure others not dangerous, and that it must procure the best or be held responsible. See, alao, Dorsey v, Phillips & Colhy Construction Co. 42 Wis. 583, at page 597 ; Toledo, etc. R. Co. v. Asbury, 84 111.429. �DELEGATION OF MASTER'S DUTT TO AGENT OE SERVANT — SeRVANT'S �Negligence Imputable to the Master. Where an employer attends personally to the supply and repair of the machinery, the question for the jury is, did he exercise reasonable care in the performance of his duty to the servant to selcct,sound and suitable machinery, and to keep the same in re- pair ? When the.employer does not do this in person, but, as is pf ten the case with individuals, and always the case wlth corporations, delegates the duty of selecting and repairing the machinery to bis agent or servant,, what is the question for the Jury in this case? Does the question becpme, as mainjiained by some text writers, did the mastCT exercise reasonable care in the selec- tion of the servant to whom he delegated the duty of selecting and repairipg the machinery? Said lyord Citirns, in Wilson v. Merry, L. R. 1 jSc App. 326: "But what the master is, in my opinion, bound to his servant to do, in the event of his not. personally superintending and directing the virork, is to select proper and cpmpeteut persons tp do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons so seleijted are guilty of negligence, this is not the negligence of thc master.[' If such is the true rule of law, then corporations could seldombe held responsible for injuries to employes from detective machinery; and, in the Jifnguage of Byles, J., in Olarke v. Holmes, 7 H. & N. 937, " the more a master fleglects his business and abandons it to others the less will he be liable." ��� �