proper care of his servant, and not expose him to danger, (w) 1 but it has been held that he is not responsible for an accident happening in the course of his service, unless the master knew that it exposed the servant to peculiar danger, and the servant did not. (x) might not have two days' work for him. N. worked for C. several months, and brought an action for his wages, and annexed to his writ a bill of particulars, in which he charged the price agreed on per month, and gave C. credit for a certain sum on account of three weeks' sickness of N., during which time he was unable to work. C. filed in set-off an account against N. for board during his sickness; it was held, that the contract was a hiring by the month, that C. was not entitled to payment for N.'s board during his sickness; but that N. could not recover wages for any part of the time of his detention from work by sickness. Another question," Hubbard, J., remarked, "might have been raised on this contract, namely, whether the plaintiff might not have been entitled to payment for his whole time; but by crediting the loss of time he has precluded that inquiry, and is properly bound by his admission." Nor, without a specific agreement to that effect, can the master deduct the value of articles injured or lost by the servant; but must bring a cross action therefor. Le Loir v. Bristow, 4 Camp. 134. But see Snell v. The Independence, Gilpin, 40; The New Phoenix, 2 Hagg. Add. 420. If the servant is an infant, the master may deduct from his wages such sums as he has paid for the infant's necessaries, but no other. Hedgley v. Holt, 4 C. & P. 104. In this case, Bayley, J., said: "Payments made on account of wages due to an infant, for necessaries, and which could not be avoided, are valid payments; but an infant cannot bind herself for things which are not necessary; indeed, even the statement of an account does not bind an infant. It appears that this young woman was under age when she settled the account. The consequences might be very injurious if the law were otherwise. very case? What would it lead to in this Here is a female, who is described as rather a showy woman, suffered to dress in a manner quite unfitted to her station; and at the end of her twelve months' servitude she would not have a farthing in her pocket." In Adams v. The Woonsocket Company, 11 Met. 327, a father, whose minor daughter was employed by a manufacturing company, at a distance of many miles from his residence, forbade them to employ her any further, and gave them notice that if they should continue to employ her, he should demand $3.50 per week for her time and labor, without any deduction on any account whatever, and also directed them not to pay or allow her anything, either goods or money, on account of her labor. was held, in an action of assumpsit by the father against the company, to recover pay for his daughter's labor subsequently done for them, that he was entitled to recover only as much as her labor was reasonably worth, deducting the price of board provided for her by them, without any deduction for clothing, which they provided for her. It (w) In Priestley v. Fowler, 3 M. & W. 1, Lord Abinger says, that this should be such care as the master may reasonably be expected to take of himself. And see Paterson v. Wallace, 28 E. L. & E. 48. (r) Priestley v. Fowler, 3 M. & W. 1. In Buzzell v. Laconia Man. Co. 48 Me. 113, it is held to be the duty of the master to keep safe and convenient all bridges, passageways, or ladders, necessary to be used by the employé, in going to or returning from his labor. See also Ormond v. Holland, 96 Eng. C. L. 102. 1 A master should warn an inexperienced servant of the dangers of the work committed to him, O'Connor . Adams, 120 Mass. 427; and put guards about dangerous machinery, failing which he is liable, Button v. Great Western Cotton Co. L. R. 7 Ex. 130, as well as for defects in machinery unknown to the servant, but which the master with ordinary care could have cured, Walsh v. Peet Valve Co. 110 Mass. 23; Booth v. Boston, &c. R. Co. 67 N. Y. 593; Dillon v. Union Pacific, &c. R. Co. 3 Dillon, 319. — A cab-owner has been held liable for furnishing to a driver a horse not reasonably fit to be driven in a cab, in Fowler v. Lock, L. R. 7 C. P. 272; 10 C. P. 90; a railroad for allowing a derrick after disuse to remain so as to be thrown down by natural causes, to the injury of a brakeman, in Holden v. Fitchburg R. Co. 129 Mass. 268; and a corporation for furnishing giant powder without explaining its use, in Smith v. Oxford Iron Co. 13 Vroom, 467. — K. * 43 It has been held, that a master who uses due care in the selection and employment of his servants, is not responsible to one of them for an injury received from the carelessness of another while employed in the master's service. (y)1 And the rule has been applied to the case where the party injured was not the servant of the defendants, but was, at the time of the injury, voluntarily assisting their servants; (z) 2 and also where the servants are employed in distinct departments of the general business. (zz) But where the servants, though employed upon common work, are in the employment of different masters, and for separate ends, as in the case of a servant of a carrier injured by the negligence of a merchant's porter, in the process of delivering goods from a warehouse on board a dray, to be transported by the carrier for the merchant, the master of the negligent servant will be responsible to the other servant for the injury. (a) The (y) Farwell v. Boston & Worcester R. R. Co. 4 Met. 49; Priestley v. Fowler, 3 M. & W. 1; Brown v. Maxwell, 6 Hill (N. Y.), 594; Hutchinson v. York, Newcastle & Berwick Railway Co. 5 Exch. 343; Wigmore v. Jay, id. 354; Tarrant v. Webb, 18 C. B. 797. See also Skipp v. Eastern Counties R. Co. 9 Exch. 223; Hubgh v. New Orleans Railroad, 6 La. An. 495; Ryan v. The Cumb. Valley Railroad Co. 23 Penn. St. 384; Coon v. Syracuse & Utica Railroad, 1 Seld. 493; Sherman v. Rochester & Syracuse Railroad, 15 Barb. 574; Albro v. Agawam Canal Co. 6 Cush. 75; Shields v. Yonge, 15 Ga. 349; Mitchell v. Penn. R. R. Co. Amer. Law Register, Oct. 1853, p. 717; Honner v. Illinois Central Railroad Co. 15 Ill. 550; The Ohio & Miss. R. R. Co. v. Tindall, 13 Ind. 366; C. & X. & L. M. R. R. 3 Co. v. Webb, 12 Ohio St. 475; Illinois Central R. R. Co. v. Cox, 21 Ill. 20; Hard, Adm'r v. Vt. & Canada R. R. Co. 32 Vt. 473; contra, Little Miami Railroad Co. v. Stevens, 20 Ohio, 415; Cleveland, Colum. & Cincin. R. R. Co. v. Kearney, 3 Ohio St. 201; Manville v. Cleveland & Toledo R. R. Co. 11 Ohio St. 417; Chamberlain v. Mil. & Mis. R. R. Co. 11 Wis. 238, and the Scotch case of Dixon v. Ranken, 20 Law Times, 44; Gilman v. Eastern R. R. Co. 10 Allen, 233; Burke v. Norwich R. R. Co. 34 Conn. 474. (z) Degg v. Midland R. Co. 1 H. & N. 773. See also Vose v. Lancashire & Y. R. Co. 2 H. & N. 728. (zz) Foster v. Minnesota Central R. R. Co. 14 Minn. 360. (a) Abraham v. Reynolds, 5 H. & N. 143. 1 A servant takes upon himself the risks of his employment, Lovell v. Howell, 1 C. P. D. 161; Gibson v. Erie R. Co. 63 N. Y. 449; Pennsylvania R. Co. v. Lynch, 90 Ill. 333; although an infant, De Graff v. N. Y. Cent. R. Co. 76 N. Y. 125; and a master ought to discharge a servant as soon as he discovers his unfitness, Columbus, &c. R. Co. v. Troesch, 68 Ill. 545; Mich. Cent. R. Co. v. Dolan, 32 Mich. 510; Houston, &c. R. Co. v. Oram, 49 Tex. 341.-But a master is liable for not employing servants of ordinary skill and care, whereby a fellow-servant is injured. Chapman v. Erie R. Co. 55 N. Y. 579; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Couch v. Watson Coal Co. 46 Ia. 17; Hardy v. Carolina R. Co. 76 N. C. 5.- A master, by joining in the work, does become not free from liability as a fellow-servant. Wilson v. Merry, L. R. 1 Sc. & Div. App. 326. — K. 2 Osborne r. Knox, &c. R. Co. 68 Me. 49; unless the assistance was rendered in a transaction of common interest to master and volunteer, with the former's assent, as in getting coal other than at the usual place, which was crowded, Holmes . N. E. R. Co. L. R. 4 Ex. 254; 6 Ex. 123; or in loading his box, the number of porters being insufficient, Wright v. London, &c. R. Co. L. R. 10 Q. B. 298; 1 Q. B. D. 252; or in clearing snow from a railroad track, Bradley v. N. Y. &c. R. Co. 62 N. Y. 99. — K. This is equally true of a ship owner and a pilot whom the former was compelled to hire, Smith v. Steele, L. R. 10 Q. B. 125; as well as where a colliery engaged A. to complete a shaft, supplying the steam while A. employed and paid the workmen, and a employer will be held responsible to a servant injured by the act of a fellow-servant, if the injury was caused by the fellow-servant's using insufficient or unsafe materials which were supplied to him by the employer. (b) If the master has a general manager who employs the servants, standing in the place of the master, he is to be treated as the agent of the master, and not as a co-servant, and if he does not hire careful servants the master is liable as if he hired improper servants himself. (c) There have been of late many cases under the rule exempting an employer from liability for injury to a servant from a co-servant; and there seems to be a tendency to limit the rule to cases where the injured servant was engaged in a common business with the inflicter of the injury, so that he would have an opportunity of preventing by due care his fellow-servant's negligence. (cc) 2 It has been held by an application of the general rule that a servant of a railroad company is not entitled to the same remedy for injuries sustained as a passenger. (cd) But such a company was held liable to a repairer of their road injured by cars running out of line. (ce) [In England and many States of this country statutes give under certain circumstances a right of action] for injury caused by workman was injured by an engineer under A.'s control, but paid by the colliery, Rourke v. White Moss Colliery Co. 1 C. P. D. 556; 2 C. P. D. 205. See Allen v. New Gas Co. 1 Ex. D. 251. But a person employing master mechanics, each of whom was to furnish the men, tools, and tackle for his work, is not liable, if not negligent in their selection, to a servant of one for an injury caused by imperfect tackle furnished by the other. Harkins v. Standard Sugar Refinery, 122 Mass. 400. See Johnson v. Boston, 118 Mass. 114. K. A corporation president is not a co-servant, Smith v. Oxford Iron Co. 13 Vroom, 467; but contra of a “manager.” Wilson v. Merry, 1 Sc. & Div. App. 326; of a “viceprincipal" of a colliery, Howells v. Landore Steel Co. L. R. 10 Q. B. 62; and of a foreman," O'Connor v. Roberts, 120 Mass. 227; Zeigler v. Day, 123 Mass. 152; Malone v. Hathaway, 64 N. Y. 5. — K. 2 A brakeman and an inspector of rolling-stock, Wonder v. Baltimore, 32 Md. 411; the conductor and engineer of the same train, Dow v. Kansas, &c. R. Co. 8 Kan. 642; Summerhays v. Kansas, &c. R. Co. 2 Col. 484; Ragsdale v. Memphis R. Co. 59 Tenn. 426; a construction train conductor and a laborer, McGowan v. St. Louis, &c. R. Co. 61 Mo. 528; and a station-master and engineer, Evans v. Atlantic R. Co. 62 Mo. 49, have been held co servants. — K. a co-employé; but under [such statutes] it is held that the employing company is not bound to extraordinary diligence. (cf) From recent cases it would seem that the general rule is now much modified. If the injury was caused directly by the negligence of the employer, he would undoubtedly be responsible, and in a case where the superintendent of an iron company, caused injury to a fellow workman by employing a dangerous explosive, it was held that the negligence of the superintendent was the negligence of the employer. (cg) An employé injured by negligence of a fellow employé, claimed that this person was notoriously negligent and incompetent; but, as it appeared that having this knowledge he continued in this employment, it was held that he took the risk on himself, and the employer was not liable. (ch) The master is under no legal obligation to give a testimonial of character to his servant. If he does, it will be pre-44 sumed that he speaks the truth, or what he believes to be true; and therefore if he says what injures the standing and prospects of the servant, and this turns out not to be true, the master is nevertheless not liable, unless the servant can prove that the falsity was uttered in malice. (d) Such is the English rule; but it may be supposed that in this country, if the master is proved to have said what is untrue, he would be responsible for any injury arising therefrom to the servant; at least unless he could satisfy the jury that he spoke from sufficient cause, and not from malice. In order to constitute a contract of hiring and service, there must be a mutual engagement, on the one part to serve, and on the other to employ and pay. (e) But these engagements cannot always be implied one from the other, or measured one by the other. If a servant agrees to serve for a term of two years, and the master only agrees to pay so much weekly, the master is under no obligation to keep or employ him during the two years, (ef) Hunt v. Chicago, &c. R. R. Co. 26 Ia. 363. (cg) Lalor v. C. B., &c. R. Co. 52 Ill. 401; Spelman v. Fisher Iron Co. 56 Barb. 151; Louisville, &c. R. R. Co. v. Filbern, 6 Bush, 574. (ch) Davis v. Detroit, &c. R. R. Co. 20 Mich. 105. (d) Rogers r. Clifton, 3 B. & P. 591; Edmonson v. Stephenson, Bull. N. P. 8; Weatherston v. Hawkins, 1 T. R. 110. (e) See Sykes v. Dixon, 9 A. & E. 693, where B. contracted in writing to work for the plaintiff in his trade, and for no other person, during twelve months, and so on from twelve months to twelve months, until B. should give notice of quitting. Held, that such agreement was invalid under the statute of frauds for want of mutuality. 1 The right given by such a statute has been held additional to and not instead of any right of action the servant might have at common law. Ryalls v. Mechanics' Mills, 150 Mass. 190. but only to pay so much while he does employ him. (f) *the same *45 But where the contracts are mutual, and cover ground, for both parties, then the master has at once a right to require the servant to enter upon the discharge of his duty during the term, and the servant has a right to require the master to employ him during the whole of the term. Like other agreements, a contract for labor and service, if not to be performed within a year, is within the statute of frauds, and if by parol, is wholly void. (g) And if the contract of service is begun within a year from the making of it, but by the terms of the agreement is not to be completed within that time, it is within the statute and void. (h) It must be certain, however, from the terms of the contract, or be necessarily implied therefrom, that the contract cannot be performed within a year, or it will * 46 not be void. (i) This subject will be, however, * considered (f) In Williamson v. Taylor, 5 Q. B. 175, by an agreement between the defendant and plaintiff, the defendant, being the owner of a colliery, retained and hired the plaintiff to hew, work, &c., at the colliery, for wages at certain rates in proportion to the work done, payable once a fortnight; and the plaintiff agreed to continue the defendant's servant during all times the pit should be laid off work, and, when required (except when prevented by unavoidable cause), to do a full day's work on every working day. Held, that the defendant was not obliged by this contract to employ the plaintiff at reasonable times for a reasonable number of In Aspworking days during the term. din v. Austin, 5 Q. B. 671, by an agreement between the plaintiff and defendant, the plaintiff agreed to manufacture cement for the defendant, and the defendant, on condition of the plaintiff's performing such engagement, promised to pay him £4 weekly during the two years following the date of the agreement, and £5 weekly during the year next following, and also to receive him into partnership as a manufacturer of cement at the expiration of three years; and the plaintiff engaged to instruct the defendant in the art of manufacturing cement. Each party bound himself in a penal sum to fulfil the The defendant afterwards agreement. covenanted by deed for the performance of the agreement on his part. Held, that the stipulations in the agreement did not raise an implied covenant that the defendant should employ the plaintiff in two years, the business for three or though the defendant was bound by the express words to pay the plaintiff the stipulated wages during those periods respectively, if the plaintiff performed, See Dunn v. or was ready to perform, the condition precedent on his part. Sayles, 5 Q. B 685; Pilkington v. Scott, 15 M. & W. 657; Elderton v. Emmens, 6 C. B. 160; Rust v. Nottidge, 16 E. L. & E. 170, s. c. 1 E. & B. 99; Regina v. Welch, 20 E. L. & E. 82, s. c. 2 E. & B. 357. (g) Bracegirdle v. Heald, 1 B. & Ald. 722. In this case the contract was by parol on the 27th of May, for a year's service from the 30th of June following, and was held void. Se also Snelling v. Lord HuntC. M. & R. 20; Hinckley v. ingfield, Southgate, 11 Vt. 458; Tuttle v. Swett, 31 Me. 555; Oddy v. James, 48 N. Y. 685; Sutcliffe v. Atlantic Mills, 13 R. I. 480. (h) Id.; and see Pitcher v. Wilson, 5 Mo. 46; Drummond v. Burrell, 13 Wend. 307; Squire v. Whipple, 1 Vt. 69; Birch v. Earl of Liverpool, 9 B. & C. 392. (i) A parol agreement to labor for a company "for the term of five years, or so long as A. shall continue to be agent of the company" is not void under the statute, as it might have been completed within a year, although in some contingencies it might extend beyond a year. Roberts v. Rockbottom Company, 7 Met. 47.-This construction of the statute is supported also by the cases of Kent v. Kent, 18 Pick. 569; In BroadPeters v. Westborough, 19 Pick. 364; Wells v. Horton, 4 Bing. 40. 1 It was said in Cawthorne v. Cordrey, 13 C. B. N. s. 406, that a contract to serve for one year, to begin the day after the contract was entered into, was not within the |