Page:Federal Reporter, 1st Series, Volume 9.djvu/359

344 FEDERAL REPORTER. �Does not the question for the jury remain the same, wliether the master attends personally to the supply and repair of machinery or appoints others to do it? Did he exercise due care in supplying the machinery f It is well set- tled that the duty of the master to use due care in the selection of competent servants is not necessanly discharged by the appointment of a competent agent to select the servants, and it is difficult to see why the same rule does not apply in the selection of machinery. Flike v. Boston, etc., R. Go. 53 IT. Y. 549, Church, C. J., at page 553 ; Quinoy Mining Co. v. Kitts, 42 Mich. 34. It may be due care on the part of the master to delegate the duty of attending to the supply and repair of machinery to a competent agent; it might be gross neg- ligence in him to attempt to do it himself. " But he is bound to use reason- able care, having regard to the nature of the business and the eircumstances of the case, to secure their safety and sufflciency." Holden v. Fitchburg R. Co. 129 Mass. 268. �" We understand," say the court, in Fuller v. Jewett, 80 N. Y. 46, *' that acts which the master, ais such, is bound to perform for the safety and protection of his employes cannot be delegated so as to exonerate the former from lia- bility to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a superior offlcer, agent, or servant, or of a aubordinate or inferior agent or servant to whom the doing of the act or the performance of the duty has been committed. In either case, in respect to such act or duty, the serv- ant who undertakes or omits to perform it is the representative of the master, and not a mere co-servant with the one who sustains the injury." And the court held that the duty of maintaining machinery in proper repair devolved upon the master, and he was liable for injuries resulting from a f allure to per- form it. " The master cannot delegate his duty to seleot competent servants and safe machinery to another. He must use reasonable care in performing these acts. * * * If the immediate negligence in these cases is that of an agent or servant, and a co-servant is injured thereby, the law imputes the negligence to the master, and the master is liable the same as if the in jury had been sustained by a stranger." Booth v. Boston, etc., R. Co. 73 N. Y. 38. �Every railroad operator owes to his employes a duty to f urnish machinery adequate and proper for the use to which it is to be applied, and to maintain it in like condition, and he is liable for injuries resulting from failure to per- form this duty, whether the act was due to personal negleet or the negleot of an agent employed by him. Kain v. Smith, 80 N. Y. 458; Kirkpatrick v. If. Y. Central R. Co. 79 N. Y. 240. And this is the law of Massachusetts. In Qilman v. Eastern R. Co. 13 Allen, 440, the court say: "Ile [the master] cannot divest himself of his duty to have suitable instruments of any kind by delegating to an agent their employment or selection, their superintendence or repair. A corporation must, and a master who has an extensive business often does, perform this duty through offlcers or superintendents ; but the duty is his, and not merely theirs, and for negligence of his duty in this respect he is responsible." Said ffray, G. J., in Coombs v. New Bedford Cordage Co. 102 Mass. 572: "The duty of providing suitable machinery to carry on their business, and a suitable place for the plaintiff to work in^ including giving nim full notice of the nature of the risks attending the service, was a ��� �