effectually impeached this witness, and we think lost sight of the other testimony that to appearances the stringer was sound upon the surface. If the jury believed that it did so appear upon the surface, then, in the absence of actual knowledge or notice, the question would be whether they had used due diligence in discovering the defect, and neglected to do that which common prudence and caution required them to do to ascertain the condition of the timber. Blank v. Township of Livonia, 78 Mich.-(44 N. W. Rep. 157); Township of Medina v. Perkins, 48 Mich. 67 (11 N. W. Rep. 810).

It was claimed that the plaintiff was guilty of contributory negligence in driving so heavy a load too far to the east side of the bridge. The circuit judge held that, if he did so unnecessarily, and he left the facts to them to determine under the testimony,-he was guilty of negligence; and if they found that the injury occurred through his negligence, and not through the negligence of defendant, he could not recover. He nowhere instructs them that if they found defendant was negligent, and such negligence caused the injury, the plaintiff could not recover if his own negligence contributed to the injury. We think the jury may not have understood the court upon the question of plaintiff's negligence, as he failed to distinguish between negligence which caused the injury and negligence which contributed to it.

The court was requested to charge the jury that, unless they found that the road in question was used as a public highway for 10 years before the accident, they could not give a verdict for the plaintiff. The court, after repeating this request, said

I charge you that that is not the law, and that you have no question of that kind to consider at all."

Section 4 of Act 264, Laws of 1887, reads as follows:

"The provisions of this act shall not apply to public highways which have not been in use ten years; but nothing in this section shall be construed as exempting townships, villages, and cities from maintaining their streets, bridges, sidewalks, cross-walks, and culverts, and the approaches to bridges, in a safe condition for public travel."

The act comprises six sections. The first gives a remedy to any person who has sustained bodily injury upon any public highway by reason of the neglect to keep the same in reasonable repair. The second gives a remedy to the owner of any animal or other property which receives injury by reason of the neglect by any township, etc., to keep the highway in repair. The third section enjoins the duty upon townships, etc., to keep in reasonable repair the highways, etc. The fourth section. has been quoted above. The fifth confines the remedies for injuries received from the neglect to keep the highways in repair to those given by the act, and abrogates all common-law liability. The sixth repeals certain former statutes.

A correct interpretation of the fourth section requires us to hold that the first clause of the fourth section withholds the remedy given by the first and second sections as to all public highways which have not been in use 10 years; at the same time, by the latter clause, the duty imposed by section 3 applies to all highways, whatever the length of time they have been in use as public highways. This duty can be enforced by information or indictment, but a suit for redress for injuries received. for such neglect by a private person cannot be maintained unless the highway has been in use as a public highway 10 years. This remedy did not exist in Michigan until it was given by this statute, and the Legislature, in bestowing a new remedy, may surround it with such restrictions

78 492

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as they deem proper. Except as noted above, the charge was a very clear and fair statement of the law.

For the errors mentioned the judgment will be reversed, and a new trial granted.

The other Justices concurred.

MELVIN E. VANDUSEN V. FRANCIS LETELLIER ET AL.

Master and servant-Safe place to work-Inspection-NegligenceFellow-servants-Delegation of master's duty-Respondeat superior-Evidence-Res gestae.

1. The duty of inspection, when required by the circumstances of the case, cannot be delegated by the master in such manner as to avoid responsibility.

So held, where a firm of lumber-manufacturers,-none of the members of which undertook to personally supervise the manufacture of lumber at the point where the mill was located, and all of whom resided in another county,-employed a general foreman or superintendent who was to look after the sawing of the lumber and in a general way the entire business, who employed competent men to inspect the docks upon which the lumber was placed preparatory to piling, and the posts and stringers supporting the same, one of which docks fell by reason of the breaking of one of said posts, which was weakened where the stringer was mortised in by reason of dry-rot not visible on an outward inspection of the post,-the mortise being covered by a plank which was not removed at time of inspection, and injured an employé, who was awarded damages for the injuries thus sustained.

2. The following propositions are summarized from the opinion of Mr. Justice MORSE, in which LONG, J., concurred:

a-The circuit judge was right in instructing the jury that, if the defendants themselves could have discovered the defect in the dock-the fall of which injured plaintiff-by exercising reasonable care and diligence, they were responsible, notwithstanding they had employed skillful and competent persons to

look after the docks, and had furnished them with the proper materials for repairing the same.

b-It is well settled by all of the authorities that the master must provide his servant with a safe place to work in, and furnish him with suitable machinery and appliances with which to perform such work; and it is his duty to keep such machinery and appliances in good repair. If he cannot do this personally he must provide some other person to take his place in this respect, and the person to whom this duty is delegated,— no matter what his rank or grade, or by what name he may be called, cannot be a servant in the sense or under the rule applicable to injuries occasioned by fellow-servants.

c-In order to keep such machinery and appliances safely in repair, the law makes it the duty of the master to make all needed inspections and examinations; and he cannot escape responsibility by delegating this duty to one who, in other respects, may be a fellow-servant of the person injured by the failure to properly perform this duty. Swoboda v. Ward, 40 Mich. 420; Mining Co. v. Kitts, 42 Id. 39; Parkhurst v. Johnson, 50 Id. 70; Ryan v. Bagaley, Id. 179; Huizega v. Lumber Co., 51 Id. 272; Smith v. Car Works, 60 Id. 502; Marshall v. Furniture Co., 67 Id. 167.

d-From all the circumstances of the case, it was for the jury to determine whether the inspection, as made, was made at the particular spot where the post broke, and whether, if made there, it was a sufficient inspection to look at it, or sound it with a hammer or other instrument, without tearing off the plank which was nailed over the mortises and tenons, or without cutting or boring into the wood.

e-It was not error for plaintiff to show what wages he commonly earned, but it was not proper to show that he had no other means of support than day-labor, which fact was immaterial to the issue, and an indirect way of bringing the poverty of plaintiff before the jury, which is not permissible in actions of this character, Marsh v. Bristol, 65 Mich. 383.

f-An admission by defendants' vice-principal of knowledge, before the accident, of the particular defect causing it, made the next day and away from the place where it happened, is inadmissible. Railroad Co. v. Coleman, 28 Mich. 440; Ruggles v. Fay, 31 Id. 141; Mabley v. Kittleberger, 37 Id. 360; Gates v. Boom Co., 70 Id. 309; Patterson v. Railway Co., 54 Id. 92; Stebbins v. Township of Keene, 55 Id. 552; Wormsdorf v. Railway Co., 75 Id. 476.

Error to Osceola. (Judkins, J.) Argued November 14, 1889. Decided December 28, 1889.

Negligence case. Defendants bring error.

The facts are stated in the opinion.

Reversed.

J. C. FitzGerald (Charles Chandler and Francis A. Stace, of counsel), for appellants, contended:

1. Personal negligence is the gist of this action, and in order to recover the plaintiff must show affirmatively by competent evidence that the defendants were guilty of such negligence. He must show that the docks were not inspected in a reasonably careful manner, and that such want of careful inspection was in consequence of the negligence of the defendants; citing Railroad Co. v. Judson, 34 Mich. 506; Mining Co. v. Kitts, 42 Id. 34; Brown v. Railway Co., 49 Id. 153; Henry v. Railway Co., Id. 495; Mitchell v. Railway Co., 51 Id. 236; McPadden v. Railroad Co., 44 N. Y. 478; Malone v. Hathaway, 64 Id. 5.

2. The mere fact that the dock fell in consequence of the timber composing it being defective is not evidence of negligence in the defendants; citing Railroad Co. v. Kirkwood, 45 Mich. 51; Henry v. Railway Co., 49 Id. 495; Warner v. Railway Co., 39 N. Y. 468.

3. An employer is not an insurer nor guarantor of the safety of his employé; citing Batterson v. Railway Co., 49 Mich. 184; Beaulieu v. Portland Co., 48 Me. 291; Railway Co. v. Troesch, 68 Ill. 545; Caldwell v. Brown, 53 Penn. St. 453; Slater v. Jewett, 85 N. Y. 61.

4. Negligence cannot be presumed, but must be affirmatively proved, and in the absence of proof the presumption is that the master has done his duty; citing Davis v. Railroad Co., 20 Mich. 105; Railroad Co. v. Judson, 34 Id. 506; Foley v. Railway Co., 48 Id. 622; Brown v. Railway Co., 49 Id. 153; 3 Wood's Railway Law, § 392.

5. Evidence, to be sufficient, must be of such a character that a jury may therefrom reasonably and properly conclude that there was negligence; a mere scintilla of evidence, or evidence from which a jury may surmise that there was negligence somewhere, is not sufficient; citing Beaulieu v. Portland Co., 48 Me. 291, Baulec v. Railroad Co., 59 N. Y. 356; Cotton v. Wood, 8 C. B. (89 Eng. C. L.) 566.

6. The submission of an action for negligence to a jury is not authorized where the evidence on the part of the plaintiff is equally consistent with the absence as with the existence of negligence, as in such case the evidence fails to establish neg