reasonably safe condition, and to exercise like care to keep them in repair and free from obstruction. Railroad Co. v. Ogden, 3 Colo. 499; Railroad Co. v. Myers, 11 C. C. A., 439, 63 Fed. Rep. 793; Railroad Co. v. Johnson, 27 C. C. A. 367, 81 Fed. Rep. 679; Bowen v. Railway Co., 95 Mo. 268, 8 S. W. Rep. 230; O'Donnell v. Railroad Co., 59 Pa. St. 239; Calvo v. Railroad Co., 23 S. C., 526; Torian's Adm'r. v. Railroad Co., 84 Va. 192, 4 S. E. Rep. 339; Bessex v. Railway Co., 45 Wis. 477. To entitle a servant, however, to recover damages for an injury caused by the alleged negligence of the master in failing to exercise ordinary and reasonable care in putting or keeping in good condition the place in which the service is to be performed, the evidence must show that the master knew, or ought to have known, of the defect which rendered the place dangerous, and that the servant, notwithstanding he exercised ordinary and reasonable care to protect himself, was ignorant of the peril to which he was exposed. Griffiths v. Docks Co., 13 Q. B. Div. 259 (1); Thomas v. Quartermaine, 18 Q. B. Div. 685 (2); Railroad Co. . Campbell, 97 Ala. 147, 12 Southern Rep. 574; Erskine v. Beet Sugar Co., 71 Fed. Rep. 270; Richardson v. Cooper, 88 Ill. 270; Railway Co. v. Corps, 124 Ind. 427, 24 N. E. Rep. 1046; Matchett v. Railway Co. 132 Ind. 334, 31 N. E. Rep. 792; Coal Co. v. Albani, 12 Ind. App. 497, 40 N. E. Rep. 702; Buzzell v. Manufacturing Co., 48 Me. 113; Laning v. Railroad Co., 49 N. Y. 521; Mixter v. Coal Co., 152 Pa. St. 395, 25 Atl. Rep. 587.

The following cases, cited and relied upon by plaintiff's counsel to sustain the judgment, illustrate the legal principle that the defect which rendered the place dangerous was open, and the master could

1. In Griffiths v. London and St. K. Docks Co., 13 Q. B. Div. 259, affirming 12 Q. B. Div. 493, the declaration was held insufficient for want of an allegation that the danger was known to the master and unknown to the servant.

pull a board from under the boiling vat. This board stuck fast and then came away suddenly, so that he fell back into the cooling vat and was scalded. Plaintiff recovered judgment in the County Court, but the Divisional Court set it aside and directed judgment for defendant. Held, that the defense arising from the maxim" Volenti non fit injuria," had not been affected by the Employer's Liability Act, 1880, and applied to this case; that there was no evidence of negligence arising from a breach of duty on the part of defendant towards plaintiff, and that plaintiff was not entitled to Lord Esher, M. R., dis

2. In Thomas v. Quartermaine, 18 Q. B. D. 685, it appeared plaintiff was employed in a cooling room in defendant's brewery. In the room were a boiling vat and a cooling vat, and between them ran a passage which was in part only three feet wide. The cooling vat had a rim raised sixteen inches above the level of the passage, but it was not fenced or railed in. Plaintiff went along this passage to sented.

recover.

have discovered it by the exercise of reasonable diligence, but the servant, relying upon the presumption that this duty had been fully discharged, was injured without knowledge of the peril to which he was negligently endangered: Anderson v. Bennett, supra; Lewis v. Railroad Co., 59 Mo. 495; Hall v. Railway Co., 74 Mo. 298; Vautrain v. Railway Co., 8 Mo. App. 538; Snow v. Railroad Co., 8 Allen, 441; Moon's Adm'r v. Railroad Co., 78 Va. 745; Hulehan v. Railroad Co., 68 Wis. 520, 32.N. W. Rep. 529; Davis v. Railroad Co., 55 Vt. 84. In the case at bar, however, the injury upon which the action is based was not caused by any defect in the place where the service was to be performed; but it primarily resulted from the negligence of the men who operated the hand-car, combined with the carelessness of the man who dropped his tamping bar. This presents the question whether, in view of the fact that plaintiff and his fellowworkmen were seen by the bridge carpenters in sufficient time to have avoided the injury, and considering that plaintiff knew that these employees would pass over the line that morning, it was a breach of the master's duty, in failing to place a signal, or to adopt some other means to protect the men at work on the track against accidents which might be caused by the negligence of those who operated hand cars. Signal flags are used by the company to notify the persons in charge of its locomotives that the roadbed or track is in a dangerous condition, requiring them to stop their engines, or admonishing them to proceed with care; and, to accomplish the object for which these tokens are designed, prudence dictates that they should be placed at such a reasonable distance from the point of peril as to enable the engineer and those associated with him to get such control of its train as to be able to stop it or slacken its speed before reaching the defect which renders further progress dangerous. The chief purpose which these danger signals serve must necessarily be to protect the lives of those who operate, or are passengers on, the train, which, by reason of its great weight and rapid movement, creates such momentum that it cannot be checked at once, so as to permit the persons who are riding thereon to safely leave it in time to escape injury. A hand-car, however, is of little weight, and can ordinarily be stopped much easier than a train; and hence it would seem that, since the quantum of duty is always commensurate with the degree of danger, the necessity for using signals to protect the lives of persons who ride on hand-cars is not so urgent as in case of employees and passengers on a swiftly moving train. It is the servant whose time and attention are so much occupied in the management of dangerous instrumentalities, as a means of advancing the master's business, that he cannot

investigate for himself the condition of the place in which his service is performed, who is entitled to special notice of any defect therein that would tend to render it dangerous, but the rule can have no application to an employee of age and experience, who is not hurried in his work, or is as conscious of the danger to which he is exposed as the master can possibly be; and, hence, the reason failing, the servant who works on the track is not entitled to the same degree of consideration as those who are compelled to perform their duties under greater difficulties. Persons employed in repairing a railroad track can leave it at pleasure in most instances, but not so with a train which must hurriedly pass over the line at frequent intervals, to accommodate the public; hence the duty of yielding the track must devolve upon the sectionmen, who are required to watch the approach of trains. Larson v. Railway Co., 43 Minn. 423, 45 N. W. Rep. 722. The necessity for vigilance on the part of the sectionmen does not relieve the employees in charge of the train from all obligation to be watchful on his account; for, as was said by Mr. Justice Fly in Railroad Co. v. Arias, (Tex. Civ. App.) 30 S. W. Rep. 446: "There is a reciprocal duty existing between the railroad company and the employee at work on the track - the one being that the railroad company must give signals, where the nature of the locality requires, and, in case there is danger of injuring the employee, to use diligence to prevent it; and the other being that the employee must keep an outlook, and seek safety from trains that may be passing." The rule announced in that case, which seems reasonable, would require the engineer to blow his whistle at curves, cuts and other dangerous places on the line to notify persons working thereon of the approach of the train, and, in proportion to the degree of danger, it is quite probable that those who operate a hand car should be required to give some notice of its approach, where a view of the track is obscured; but, this obligation not being within the class of duties which are enjoined upon the master, when a railroad company has adopted and promulgated rules for the protection of its employees under such circumstances any failure to comply therewith is the negligence of a fellow-servant a risk which the employee assumes when he enters upon the service. Under the rule that the master must exercise reasonable care to furnish a safe place in which the servant performs his labor, the employees who operate trains are entitled to notice by the master of any defect in the roadbed or track which could be discovered by reasonable diligence, but this rule cannot be invoked with like reason in favor of an employee who works on the track, for to give it that effect would tend to render it unnecessary for him to

exercise any vigilance to discover the approach of trains; and hence, in our judgment, so far as the plaintiff is concerned, the defendant was not negligent in failing to set out a danger signal towards Sheridan, as a warning to the men who operated the hand-car. We are led to this conclusion for the following reasons: 1. The track was not dangerous. The condition of the place in which the service is to be performed, which renders it dangerous, must be some defect in the soil itself, or in a structure which rests thereon or is in some manner attached thereto. 2. Plaintiff was aware of the danger. He knew that a hand car would pass over the road, coming from Sheridan, at about the time it arrived; but the reason he assigns for not perceiving it is that the car came up behind him while his attention was engrossed in the work upon which he was engaged, and that the noise made by the use of the tamping bars and other tools in surfacing the track so overcame the sound made by the car that he did not see or hear it in time to avoid the accident, which must render the excuse unavailing. 3. Plaintiff assumed the risk which caused the injury. While he had been in defendant's employ but a few days, he was nevertheless an experienced sectionman, accustomed to the work, and conscious of the dangers to which he was constantly exposed; and these risks he voluntarily assumed when he entered the service. One of the hazards to which he was necessarily subjected, and which his employment and service signify he was willing to bear, was the negligence of his fellow servants. 2 Thomp. Neg., p. 969; Miller v. Pacific Co., 20 Or. 285, 26 Pac. Rep. 70; Stockmeyer v. Reed, 55 Fed. Rep. 259; Lindvall v. Woods, 41 Minn. 212, 42 N. W. Rep. 1020; Crispin v. Babbitt, 81 N. Y. 516; Slater v. Jewett, 85 N. Y. 61; Hussey v. Coger, 112 N. Y. 614, 20 N. E. Rep. 556; Dube v. City of Lewiston, 83 Me. 211, 22 Atl. Rep. 112. Judge Thompson, in his work on Negligence (volume 2, p. 1026), in defining the term "fellow servant," says "that all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants, who take the risk. of each other's negligence." Under this definition, plaintiff and the men operating the hand car, as well as the overseer in charge of the surfacing gang, who tried to give warning of the approach of the car, but was unheard by plaintiff, were fellow servants; and this is also true when tested by the rule adopted by this court, that the character of the act, rather than the grade of the offending employee, determines such relation. Anderson v. Bennett, supra; Hartvig v. Lumber Co., 19 Or. 522, 25 Pac. Rep. 358; Miller v.

Pacific Co., supra; Carlson v. Railway Co., 21 Or. 450, 28 Pac. Rep. 497; Fisher v. Railway Co., 22 Or. 533. 30 Pac. Rep. 425; Mast v. Kern, supra.

Plaintiff's failure to exercise watchfulness, combined with the negligence of his fellow servants, produced his injury; and, these being causes for which the defendant was not responsible, it follows that the judgment is reversed, and the cause remanded for such further proceedings as may be necessary, not inconsistent with this opinion.

GOULD v. UNION TRACTION COMPANY.

Supreme Court, Pennsylvania, March, 1899.

BICYCLIST TURNING CORNER AND RUNNING INTO CAR. appeared that a boy riding a bicycle came around a corner, and a wagon being next the curb he attempted to go around it and then noticing a car approaching, and the space between the side of the car and the wagon being too small to admit of his passage, he attempted to turn back and at the same time dismount and the bicycle struck the car and the boy was injured, the fact that the motorman had his eyes turned to the other side of the street at the moment the bicycle came around the corner when it was too late to stop the car, would not justify a finding that the motorman was negligent (1).