company's employees. Such a rule would be unhealthy and unsound. The liability of a director in tort is not to be avoided by his " vicarious character," where the tort of the corporation has been committed through the directors. Nunnelly v. Iron Co. (Tenn. Sup.) 28 L. R. A. 421 (s. c. 29 S. W. Rep. 361); Bank v. Byers, 139 Mo. 627, 41 S. W. Rep. 325; Delaney v. Rochereau, 34 La. Ann. 1123. Relationship of contract to a corporation neither adds to nor subtracts from a man's duty to strangers to so use his own property, or that under his control, as not to injure another. Baird v. Shipman (Ill. Sup.) 23 N. E. Rep. 384; Riche's note to Nunnelly v. Iron Co., supra; Jenne v. Sutton, 43 N. J. Law, 257; Mayer v. Building Co. (Ala.) 16 Southern Rep. 620. Eminent judges have drawn distinctions between a trustee's liability for misfeasance, malfeasance, and nonfeasance. Bell v. Josselyn, 3 Gray, 309. But they are of no vital importance on this appeal. Nevertheless, reasoning upon these distinctions, defendants have argued that they are liable, if at all, to the corporation only, inasmuch as the record shows nonfeasance merely, or non-execution of the duties of their directorships. This argument seems to overlook the proposition that directors are charged with the affirmative duty of knowing something of the management of their company's business, and of exercising reasonable supervision of its management. Management usually signifies positive, rather than negative, conduct.

As a matter of defense, it is proper to show all facts by which the jury can say whether the inaction or ignorance relied on is a sufficient excuse for the wrong done. But we have no hesitation in saying that, upon a state of facts like that before us, nonexecution which resulted in the positive act of a creation and maintenance of a continuing nuisance on account of which a third person was killed amounts, unless explained, to misfeasance upon the part of all the directors of the company, except as to Kenyon, who, it appears prima facie, must have actually known of and authorized the nuisance. As to him it was malfeasance. A director who knew nothing of the nuisance, and who could not, by exercising ordinary diligence in control, have known of it, or, generally speaking, one who, considering the situation and all the attendant circumstances, has performed his duty of taking care, is not liable, and cannot be held so. In this case the defense must show this though, for a prima facie case is made by plaintiff. Due care involves several elements relative to the circumstances of the case. Ordinary care, for instance, on the part of a corporation that deals in hardware would not prevent the storage of large quantities of nails in a frame warehouse in the middle of a city. The dangers

from doing so would be slight, even in case of fire or lightning; but such a practice with giant powder or nitro-glycerin would be negligence, fraught with imminent peril to life and property. We said, in considering the law of negligence in a boiler explosion case (Johnson v. Mining Co., 16 Mont. 175, 40 Pac. Rep. 301): "Familiar underlying principles, evolved from generations of experience and thought, are to be applied to the peculiar phases presented by the facts and circumstances of the particular case under investigation. And so we find that the opinions, in discussing the definition of 'ordinary care,' recognize that no fixed arbitrary rule can be laid down, but that the degree of care and vigilance required varies according to the exigencies which require attention and vigilance, conforming in amount and degree to the particular circumstances under which they are to be exercised." In Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. Rep. 679, the court, in very clear language, said: "There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms ordinary care,' 'reasonable prudence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court."'

After all, therefore, the question of the personal liability of the affairs of this corporation for the negligence which resulted in Cameron's death, resolves itself into whether or not they exercised reasonable diligence in the control and supervision in their management of the corporation's business, or whether they were negligent in doing or not doing so, under all the circumstances of the case. The case must be reversed and remanded for a new trial. It is so ordered. Reversed and remanded.

BRANTLY, Ch. J., and PIGOTT, J., concur.

BENJAMIN ATHA AND ILLINGWORTH
COMPANY v. COSTELLO.

Supreme Court, New Jersey, March, 1899.

MASTER AND SERVANT — RISK OF EMPLOYMENT - INSTRUCTION.— 1. An employee assumes a risk of such dangers attending the prosecution of his work as he would discover by the exercise of ordinary care for his personal safety, and for hurt happening to him from those dangers the employer is not responsible.

2. A charge which, by the fair import of its language, confines the obvious dangers, of which an employee assumes the risk, to the dangers arising from facts known to him, does not properly embody the rule above stated. (Syllabus by the Court.)

FROM a judgment of Circuit Court, Essex County, in favor of plaintiff, defendant brings error.

EDWARD M. COLIE, for plaintiffs in error.

S. KALISCH, for defendant in error.

DIXON, J. The plaintiff, while in the employ of the defendants, and working in their shop, was injured by a plank that fell on him from the girders of the roof. The plank, with others, had been laid on the girders as a scaffold for men engaged in painting. The painting had been finished some days before the accident, and the negligence charged against the defendants was that they had permitted the planks to remain upon the girders unfastened, and liable to be shaken from their position by the jarring of the building, incident to the heavy work done in the shop. The plaintiff knew that the planks were there, and that the building was jarred by the work; but it was open to question whether he knew, or ought to have known, that the planks were not fastened.

In this state of the evidence, the defendant's counsel requested the court to charge the jury that the plaintiff was chargeable with notice of every fact which he would have known, had he exercised ordinary care to keep himself informed as to the matters concerning which it was his duty to inquire, and that, if the position of the plank over his head was such that, under all the circumstances of the situation, the plaintiff ought to have known it was likely to fall, he could not recover. As a response to these requests, the court charged that, when the plaintiff entered the service of the defendants, he assumed the risk of all obvious dangers, and risks arising in consequence of special features of danger known to him, and that if he knew the plank was over his head, and was not secured in any way,

then it was an obvious danger, and he would be barred from recovery. He further charged that if the jury found that the danger incident to the plank was a risk arising in consequence of a special feature of danger, and that that special feature of danger was not known to the plaintiff, — was not plain and obvious, then the remaining question would be, has the plaintiff established a right of recovery against the defendant company? The requests mentioned embodied a settled rule of law, pertinent to the matters in issue; for there can be no doubt than an employee assumes the risk of such dangers attending the prosecution of his work as he would discover by the exercise of ordinary care for his personal safety, and that for hurt happening to him from those dangers, the employer is not responsible. Telegraph Co. v. McMullen, 58 N. J. Law, 155, 33 Atl. Rep. 384; Comben v. Stone Co., 59 N. J. Law, 226, 1 Am. Neg. Rep. 117, 36 Atl. Rep. 473

The charge seems to us to be not a fair compliance with the requests. The charge dealt with facts known to the plaintiff. The requests dealt with facts which he ought to have known, — which he would have known had he exercised ordinary care to keep himself informed as to the matters concerning which it was his duty to inquire, viz., his personal safety while engaged in his work. distinction between the facts known to a person, and those which would become known to him if he exercised ordinary care, involves a question of negligence, and, when applied to the relation of master and servant, involves a question of legal responsibility. The conduct of an employee, tested by the facts known to him, may disclose no negligence, and no legal assumption of risk; while the same conduct, tested by the facts which ordinary care would have revealed to him, may appear negligent, or show that in law he assumed the risk of injury. Either of these conclusions would secure immunity to the master. While the charge that the plaintiff assumed the risk of all obvious dangers might, if it had been left without modification, have sufficiently expressed the true rule, yet it was not so left; for, when the learned judge came to apply it to the facts of the case, he confined it, by the reasonable import of his language, to those dangers which the plaintiff's actual knowledge would indicate.

On this assignment of error the judgment should be reversed, and the record remitted for a new trial.

NEW YORK AND NEW JERSEY TELEPHONE COMPANY v. BENNETT.

Court of Errors and Appeals, New Jersey, March, 1899.

INJURED BY PICKING UP LIVE ELECTRIC WIRE LYING IN THE STREET. - The plaintiff picked up a wire that was lying in a public highway, and was injured by an electric current (1). He brought suit against the telephone company, whose wire it was, and against the trolley company, whose current, it was contended, did the harm. Held:

1. That the question whether the linemen of the telephone company had been reasonably diligent in discovering the fallen wire, and in preventing probable injury, was properly left to the jury. Also, that:

2. Whether the failure of the trolley company to use guard wires was negligence by which the plaintiff was injured was for the jury.

3. Testimony that a witness had certain uses of his hand after an accident somewhat similar to the plaintiff's was properly excluded.

4. If the plaintiff used reasonable care in the selection of a reputable physician to cure his injury, he cannot be kept out of damages because with a better physician he would have had better results.

(Syllabus by the Court.)

ERROR to Supreme Court. From a judgment in favor of plaintiff, defendant brings error.

FLAVEL MCGEE, for plaintiff in error NEW YORK & N. J. TEL. Co. CHARLES L. CORBIN, for plaintiff in error ATLANTIC HIGHLANDS, R. B. & L. B. ELECTRIC RY. Co.

EDMUND WILSON, for defendant in error.

GARRISON, J. — The plaintiff, a countryınan, who had driven into the town of Red Bank, stopped his horse near a drinking fountain that stood at the intersection of Front and Broad streets; and in order to remove some wire that lay in the street, between the horse and the fountain, picked it up, and received through it a powerful electric current, that inflicted permanent injuries, for which he brought suit against the New York and New Jersey Telephone Company, whose wire it was, and against the Atlantic Highlands, Red Bank and Long Branch Electric Railway Company, whose current it was contended, did the harm.

The defendants were each maintaining wires in a public highway, in the exercise of franchise, not of an easement. Hence each was bound to take reasonable care not to injure other users of the streets. Electric Co. v. Nugent, 58 N. J. Law, 658, 34 Atl. Rep.

I. See NOTE OF CASES ON INJURIES FROM CONTACT WITH ELECTRIC WIRes, pp. 402-403, ante, and other cases on the subject in this volume of AM. NEG. Rep. VOL. V-42