to adopt it. And the plaintiff had no right to ask the court and jury to regard a single consequence of the adoption of the device, and to condemn the management of the railroad company on so narrow a view of its conduct, but it was his business to show that on a survey of the whole field the use of the block was prudent, and that it guarded against dangers in one direction without the introduction of perils in another. Without that showing it seems very manifest that, as the evidence stood, there was no case made for the adoption of the proposed device.

Railroading is at least a business with many dangers, and scarcely any machine, implement or expedient made use of in it but is liable at some times and under some circumstances to imperil human lives. Suppose the block had been made use of and an accident had occurred which was thought to be attributable to it; how on the plaintiff's theory would the defendant have excused itself for adopting it? A jury verdict in favor of its use in a previous case could be no protection, for a verdict makes no precedent, and settles nothing but the immediate controversy to which it relates; the next jury on precisely similar facts is at liberty to find directly the contrary. The defendant would therefore be compelled to defend its adoption of the block by showing that it tended to make the management of trains more safe. But if the plaintiff in the suit were to proceed to show-what fully appears in this case— that though the device had been known for several years the experts in charge of railroads the country over, naturally solicitous as they must be, on grounds of personal interest if not of humanity, to diminish the risks to life, had failed to be convinced of the expediency of making use of the block, this showing would have inade out a case against the defendant which could not well have been answered. The prima facie showing that the device had been hastily if not heedlessly adopted would certainly have been very strong; and if the two cases charging respectively negligence in rejecting and then in adopting the same device could go to successive juries, we might witness the instructive result of a verdict against the defendant in both. But such a result is inconsistent with a proper administration of definite rules of law and justice. It is much safer to hold that, when it appears the employer is aware, as the plaintiff was, of the risks to which he exposes himself in the service, and consents to encounter them, his employment subject to the risks cannot be treated as a breach of duty.

In Lake Shore, etc., R. Co. v. McCormick, 5 Am. and Eng. R. R. Cas. 474, 74 Ind. 440, the same allegation of breach of duty was made as in this case, and it was held not supported by the facts. The principle of the decision is familiar in this state, and is supported by the following among other cases: Chicago, etc., R. Co. v. Bayfield, 37 Mich. 211; Swoboda v. Ward, 40 Mich. 420; Quincy Mining Co. v. Kitts, 42 Mich. 34; Mich. Cent. R. Co. v.

Smithson, 45 Mich. 212; 1 Am. and Eng. R. R. Cas. 101. It is also of general acceptance elsewhere.

The judgment must be affirmed with costs.

The other justices concurred.

In this case plaintiff was injured while coupling by catching his foot in a frog in the freight yard where he daily worked. The frog was, like all the others in the yard, unblocked. In the absence of blocks the danger was obvious. It further appeared that plaintiff had been warned of the danger when he entered the service, understood it, and tried to avoid it. Under the circumstances, the principles which govern the case as set forth in the opinion of the Court are well settled.

A servant in entering an employment accepts the risks properly incident to it. M. C. R. R. Co. v. Austin, 40 Mich. 227; Day v. T. C. S. and D. Ry. Co., 2 Am. and Eng. R. R. Cas. 126, 42 Mich. 523; Smith v. Potter, 2 Am. and Eng. R. Cas. 140, 46 Mich. 258; cases in note to Phil., etc., Co. v. Schertle, 2 Am. and Eng. R. R. Cas. 163; Thompson, Negl., II. 969, and cases; Pierce on Railroads, 359 and note. If the servant with a full knowledge of an employer's methods engages in a service, he takes the risk of injury. M. C. R. R. Co. v. Smithson, 45 Mich. 219; Wonder v. Balt., etc., Co., 32 Md. 411; Sullivan v. Mfg. Co., 113 Mass. 396. The danger from the appliances which the servant must use should be obvious, such as to put him on his guard. He does not run the risk of latent dangers. C. & R. Co. v. Jackson, 55 Ill. 492; Toledo, etc., R. R. Co. v. Ingraham, 77 Ill. 309; Porter e. Hannibal, etc., Co., 71 Mo. 66; Ford v. Fitchburg, etc., Co., 110 Mass. 240; L. S., etc., Co. v. Fitzpatrick, 31 Ohio St. 479; Pierce on Railroads, 381, n. Even when the risks are fully open to observation, the servant may not be held to accept them if by reason of youth or inexperience he cannot fully appreciate them. Chicago, etc., Co. v. Bayfield, 37 Mich. 212; Bartonshill Coal Co. v. McGuire, 3 Macq. 300; Sullivan v. Mfg. Co., 113 Mass. 396; O'Connor v. Adams, 120 Mass. 427.

The master is not obliged at his peril to use only the safest methods, the best machinery, the most approved appliances. He must furnish such machinery for his servants' use and take such precautions for his servants' protection as is customary with prudent men. Within these limits he may use such appliances as he chooses. Swoboda v. Ward, 40 Mich. 422; Smith v. St. Louis, etc., Co., 69 Mo. 32; Phil., etc., Co. v. Schertle, 2 Am. & Eng. R. R. Cas. 158 and note. Ballou . Chicago, etc., Co., 5 Am. and Eng. R. R. Cas. 480 and note; Pittsburg, etc., Co. v. Sentmeyer, 5 Am. and Eng. Cas. and note, 513; M. C. R. R. Co. v. Smithson, 45 Mich. 219; 1 Am. and Eng. R. R. Cas. 101. The master must keep his machinery in good condition, as well as see that in the first place it is reasonably safe. Ford v. Fitchburg, etc., Co., 110 Mass. 240; Fuller v. Jewett, 1 Am. and Eng. R. R. Cas. 109, 80 N. Y. 46; Kain v. Smith, 80 N. Y. 458.

The law upon these points is well summarized by Scott, J.:

"The servant, when he enters into the service of an employer, impliedly agrees that he will assume all risks which are ordinarily and naturally incident to the particular service; and the master or employer impliedly agrees that he will not subject his servant, through fraud, negligence or malice, to greater risks than those which fairly and properly belong to the particular service in which the servant is to be engaged. The master's obligation is not to supply the servant with absolutely safe machinery, or with any particular kind of machinery; but his obligation is to use ordinary and reasonable care not to subject the servant to extraordinary or unreasonable danger. When a master employs a servant to do a particular kind of work, with a particular kind of implements and machinery, the master does not agree that

the implements and machinery are free from danger in their use, but he agrees that such implements and machinery, to be used by such servant, are sound and fit for the purpose intended, so far as ordinary care and prudence can discover, and that he will use ordinary care and prudence in keeping them in such condition and fitness; and the servant agrees that he will use such implements with care and prudence; and if, under such conditions and circumstances, harm or injury come to the servant, it must be ranked among the accidents, the risk of which the servant must be deemed to have assumed when he entered into such service." L. S., etc., Co. v. McCormick, 14 Ind. 440; 5 Am. and Eng. R. R. Cas. 474.

But even if the master furnishes improper appliances and fails to make needed repairs or changes, or otherwise renders the service needlessly perilous, his negligence is deemed waived by the servant, if the latter, after comprehending the risk, continues in the employment without protest or promise of amendment by the employer. Perigo v. R. R. Co., 52 Ia. 276; St. Louis, etc., Co. v. Britz, 72 Ill. 256; Dillon v. U. P. R. R. Co., 3 Dill. 319; Swoboda v. Ward, 40 Mich. 423; Holmes v. Worthington, 2 F. & F. 533; Ballou v. C. & N. W. Ry. Co., 5 Am. and Eng. Cas. and note, p. 480. protect a servant the promise must, perhaps, be to repair immediately, or within a fixed time. If one relies upon such a promise, and is injured in using the machinery, because of such reliance, he may recover. Marquette, etc., Co. r. Spear, 44 Mich. 172, 7 Am. and Eng. R. R. Cas. 486.

To

The law governing the principal case has been applied by other courts in the following cases, which by the facts involved may serve to illustrate the extent to which the doctrines in question are carried.

Thus, in L. S., etc., Ry. Co. v. McCormick, 74 Ind. 440, 5 Am. and Eng. R. R. Cas. 474, the case from which an extract is made above, the plaintiff, a brakeman, caught his foot in a frog in coupling. The frog had been in the same condition during the whole period of his employment and was like those used on the principal railroads of the United States; it was plain to see, and plaintiff had full opportunity to know the condition of the frogs at that point. The same breach of duty as to blocking was alleged as in the McGinnis case. Held, that plaintiff could not recover.

In Smith v. St. Louis, etc., Ry. Co., 69 Mo. 32, the plaintiff was a brakeman who had been in railroad work many years, and was accustomed to the Trail. He knew that there was a guard rail of the T shape where he was hurt. While coupling cars one of his feet was caught and held between the main track rail and the guard rail and his leg was run over. Held, that he could not recover.

In Deforest v. Jewett, 23 Hun, 490, the deceased was killed while coupling. The cars met just above an open sluice running across and beneath the track, in which the deceased stepped. He could not free himself and was run over The sluice had been there several years and was visible, and deceased had worked in the yard two years. Held, no recovery.

But in Porter v. Hannibal, etc., Co., 2 Am. and Eng. R. R. Cas. 44, 71 Mo. 66, a brakeman in coupling at night was hurt by stepping in a hole in the track of which he knew nothing and which was concealed. Held, he might recover on the ground that the danger was a hidden one which he had no opportunity to observe and was not chargeable with knowing.

In Hughes v. Winona, etc., Co., 27 Minn. 137, the plaintiff, a brakeman, slipped while coupling in the yard upon a wet pile of ashes on the track and was run over. It was the custom of the company to clean the ashes out of the engines while standing in the yard, and to leave the heaps upon the tracks for some time before removing them. Held, that plaintiff could not recover, as he knew the custom, or ought to have known it, as it was open to observation.

In Kelley v. C. W. & St. P. R. Co., 2 Am. & Eng. R. R. Cas. 65, the action

was for causing the death of a car coupler by running in the railroad yard a car unattended by a brakeman. The deceased knew that it was customary to run cars in that way in the yard. Held, no recovery.

In Clark v. St. Paul, etc., Co., 2 Am. and Eng. R. R. Cas. 240, a switchman was knocked from the roof of a moving freight car by the roof of an elevator which projected over a side track so far as to hit a man standing, as he was, on a car. There was no need of maintaining the roof in so dangerous a position. But the man had repeatedly worked about this spot and fully understood the risk. Held, no recovery. To same effect on very

similar facts is Gibson v. Erie, etc., Co., 63 N. Y. 450.

In Wells v. B., etc., Co., 2 Am. and Eng. R. R. Cas. 243, a brakeman was killed by being knocked from the top of a moving car by a bridge. The man was six feet tall, and the bridge was but five feet from the top of the car. The deceased had run on that part of the road for more than four years, and was familiar with the bridge. Held, no liability upon the company. Under like circumstances the same doctrine is applied in Rains v. St. Louis, etc., Co., 7 Mo. 164; Balt, etc., Co. v. Stricker, 51 Md. 47; Pittsburg, etc., Co. v. Sentmeyer, 92 Pa. St. 276, 5 Am. and Eng. R. R. Cas. 508

In Naylor v. C., etc., Ry. Co., 5 Am. & Eng. R. R. Cas. 460, a man at work in a gravel pit was warned by the foreman that he was in danger from the fall of earth, and several of his fellow workmen left, but he would not and was killed. Held, that his representative could not recover, although there may have been a safer way to conduct the excavation.

In Mansfield, etc., Co. v. McEnery, 91 Pa. St. 135, a driver had every day for months driven across a certain defective bridge. He must have known the danger which was perfectly obvious. He did not notify his employer of the dangerous condition, nor protest against being subjected to the risk. Held, he voluntarily accepted the danger, and no recovery could be had for his death.

Perhaps no case goes further than Woodley v. Ry. Co., L. R., 2 Exch. Div. 385. A laborer employed by contractors in repairing a dark tunnel was injured by a passing train after he had been working in the place for two weeks. The space between the track and the wall was narrow, and trains were passing every ten minutes. Held, but not without strong dissent by part of the Court, that though employed by a contractor he took the employment with its accompanying risks, and could not recover from the company.

BAKER et al.

v.

ALLEGHENY VALLEY R. R. Co.

(95 Pennsylvania Reports, 211. October 4, 1880.)

The duty which a master owes to his servant is to provide him with safe tools and machinery. When he does this he does not however engage that they will always continue in the same condition. Any defect which may become apparent in their use it is the duty of the servant to observe and report to his employer.

It is not negligence in the master if the tool or machine breaks, whether from an internal original fault, not apparent when the tool or machine was at first provided, or for an external apparent one produced by time and use, not brought to the master's knowledge.

A different rule, however, prevails where the tool or machinery is perishable. The master is bound to know that such tool or machinery will only last a limited time, and it is his duty to renew instruments of this character at proper intervals.

Declarations of an agent of the master made after an accident will not bind the master unless they are of such a character as to show that he had previous knowledge of the defect in the machinery.

An employee of a railroad company was killed while at work by the breaking of a rope on a derrick in use and belonging to the company. It was shown that the rope externally appeared sound, but had been in use for two or three years, and continually exposed to the weather, and there was evidence that it was actually rotten when the break occurred. There was evidence also that such a rope, after exposure for a year or more, becomes unsound, although this one betrayed no outward sign of decay. Held, that there was evidence for the jury upon the question whether such a rope was a sound one, and if not the railroad company would be liable for one injured by reason of such unsoundness.

JUNE 16, 1880. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.

Error to the Court of Common Pleas of Clearfield County. Of May Term 1880, No. 151.

Trespass on the case by Bridget Baker and others, the wife and infant children of Bartley Baker, deceased, against the Allegheny Valley R. R. Co., to recover damages for the death of said Bartley Baker, alleged to have been caused by the negligence of defendant. Plea, "not guilty."

Baker was one of a gang of men working on a gravel train, and, at the time he was killed, in 1876, was engaged along with others in hoisting heavy stones upon the cars of the train.

In loading the stones, the men used a derrick, which consisted of an upright wooden mast, about twelve inches in diameter at the ground, and about fifty feet in height, and held in place by four guy ropes attached to the top of the mast, and the other end of the ropes anchored to posts in the ground. To the mast of the derrick was attached a crane with pulley-blocks, tackle, etc.

On the morning the accident happened the men had loaded two or three stones. Baker was standing on one of the cars, in the act of obeying an order of the man in charge of the work, and a heavy stone was being raised, when one of the guy ropes gave way on account of the rottenness of the rope, and the mast of the derrick fell with great force, striking Baker across the breast, from the effects of which he died within an hour after.

At the time Baker was injured he was working under the direction of Daniel Nolan, who then had, under the defendant company, the exclusive charge and direction of the gravel train and men connected with it, and had authority from the company to hire and discharge the men who worked in his gang.

William McGregor was superintendent of the work where Baker was killed.