(43) Ransler v. Minneapolis. R., 32 Minn. 331; Cone v. Delaware R., 81 N. Y.,
206; Booth v. Boston & Albany R., 73 N. Y. 38.
(44) Richmond & Danville R. v. George, 88 Va., 328; Sherman v. Menominee
River Lumber Co., 72 Wis. 122, 127. The court cited Cayzer v. Taylor, 10 Gray
274; Avilla v. Nash, 117 Mass. 318; Paulmier v. Erie R., 34 N. J. Law 155; Booth
v. Boston & Albany R., 15 Hun. 172; Railroad v. Henderson, 37 Ohio St. 599;
Boyce v. Pitzpatrick, 80 Ind. 526; Grand Trunk R. v. Cummings, 106 U. S.
700; McMahon v. Henning, 1 McCrary 516; Papworth v. Milwaukee, 64 Wis.
389, 402; Stetler v. Chicago R., 46 Wis. 497, 510; Schultz v. Chicago R., 48 Wis.
375, 381.
105

does not contract against the combined negligence of a fellow-serv-
ant and his employer." (45)

14. A negligent act cannot be excused because it is customary,
but proof of custom is evidence, although not conclusive, that
the act is not negligent. (46)

15. When a person is injured by a defect and he sues to recover
for an injury sustained, is the inquiry simply one of fact to ascer-
tain whether the defect was obvious or not? In some states liability
is made to turn on this inquiry, was the defect obvious; if it was,
the employe knew it, or ought to have known it, and the employer
is not liable. The more general rule is, had the master the right
to assume the employe would know it because it was plainly
visible. (47)



CHAPTER VI.
SPECIAL. RULES RELATING TO THE, ASSUMPTION OP RISKS.
