104

In such a case the negligence of the co-servant will not exonerate
the company from the consequences of its own default." (42)

In another case a train broke apart in consequence of having a
defective brake and the conductor was killed by a collision resulting
therefrom. The company tried to shield itself from liability to the
representatives of the conductor behind the negligence of the brake-
man in using the brake, the condition of which it was contended
he had discovered several hours before. Said the court: "Very
likely this is true, but it does not affect the liability of the master,
nor bring the case within the rule exempting-the latter from respon-
sibility for the negligence of a fellow-servant. The master who is
bound to provide safe machinery for the use of his servants is not
relieved from responsibility to an employe for a neglect of that
duty by the fact that a fellow-servant may have been guilty of
negligence in using unsafe apparatus which was committed to him
to use. (4.S) The question would have been a very different one had
the brakeman, if injured, tried to recover of the company. He
would have failed because he know of the condition of the brake
and assumed the risk."

One other case may be cited, of an injury to a saw-mill worker
from a defective machine, with which he had nothing to do. Said
the court: "If the saw-mill company by its neglect has unnecessarily
increased the danger attendant upon the use of the machine, it is
liable for an injury to an employe who is not himself guilty of
negligence, resulting from the use of such imperfect and danger-
ous machine; and it is no excuse for the company that some one
of its employes was careless in the use of such dangerous machine,
and that if it had been carefully handled the accident would not
have occurred." (44)

This doctrine has been very forcibly stated by President Judge
Lewis: "The servant, moreover, although he assumes the ordinary
risks of the business, including the negligence of fellow-servants,

(42) Ellis V. New York Central R., 95 N. Y. 552; Grand Trunk R. v. Cum-
mings, 106 U. S. 700; Towns v. Vicksburg R., 37 Lea. Ann. 630; Farren v. Sellers
& Co., 39 La. Ann. 1011.
