Gray, J.
The rules of law are now well settled, and were affirmed in the opinion already given in this case, and reported in 10 Allen, 236, that a servant, by entering into his master’s service, assumes all the risks of that service, which the master, exercising due care, cannot control, including those arising from the negligence of his fellow-servants; but that the master is bound to use ordinary care in providing suitable structures and engines and proper servants to carry on his business, and is liable to any of their fellow-servants for his negligence in this respect. This care he can and must exercise, both in procuring and in keeping or maintaining such servants, structures and engines. If he knows, or in the exercise of due care might have known, that his servants are incompetent, or his structures or engines insufficient, either at the time of procuring them, or at any subsequent time, he fails in his duty. For the management of bis machinery and the conduct of his servants, he is not responsible to their fellow-servants; but he cannot avail himself of this exemption from responsibility, when his own negligence in not [441]*441having suitable instruments, whether persons or things, to do his work, causes injury to those m his employ. He cannot divest himself of his duty to have suitable instruments of any kind, by delegating to an agent their employment or selection, their superintendence or repair. A corporation must, and a master who has an extensive business often does, perform this duty through officers or superintendents; but the duty is his and not merely theirs, and for negligence of his duty in this respect he is responsible. To hold otherwise would be to exempt a master, who selected all his machinery and servants through agents or superintendents, from all liability whatever to their fellow-servants, although he had been grossly negligent in the selection or keeping of proper persons and means for conducting his business. In the case of a corporation, the president and directors, at least, cannot be deemed mere servants, but must be considered as representing the corporation itself.
The rule, as applied to this case as now presented, may be briefly stated thus : A railroad corporation is bound to provide proper road, machinery and equipment, and proper servants. It must do this through appropriate officers. If, acting through appropriate officers, it knowingly or negligently employs incompetent servants, it is liable for an injury occasioned to a fellow-servant by their incompetency. If it continues in its employment an incompetent servant after his incompetency is known to its officers, or so manifest that its officers, using due care, would have known it, such continuance in employment is as much a breach of duty and a ground of liability as the original employment of an incompetent servant.
It is true that it is no ground for charging a master for an injury to his servant, that it resulted from the negligent act of a superintendent or other servant of a higher grade than the plaintiff, and whose orders the plaintiff was bound to obey. Albro v. Agawam Canal, 6 Cush. 75. Feltham v. England, Law Rep. 2 Q. B. 33. But in each of these cases, as well as in King v. Boston & Worcester Railroad, 9 Cush. 112, one of the reasons on which the master was held not to be liable was the want of evidence of any neglect on the master’s part in providing or [442]*442maintaining suitable agents or structures. If the incapacity of an agent or the insufficiency of a structure is known to the master, or has existed so long or under such circumstances that, exercising due care, he ought to have known it, he is responsible. Upon this ground it was held in Snow v. Housatonic Railroad, 8 Allen, 441, that a railroad corporation might be liable to one of its servants for an injury caused by a want of repair which had existed for two months in its road-bed, although it was the immediate duty of another servant of the corporation to see that the road-bed was kept in proper repair. Similar decisions have been made in many other states. Noyes v. Smith, 28 Verm. 59. Keegan v. Western Railroad, 4 Selden, 175. Ryan v Fowler, 24 N. Y. 410. Fifield v. Northern Railroad, 42 N. H. 225. Hayden v. Smithville Manuf. Co. 29 Conn. 548. Buzzell v. Laconia Manuf. Co. 48 Maine, 113. Upon examination of the cases to which we were referred as more narrowly limiting the liability of the master, we do not find that they establish any different rule. We shall state only a few of the most recent and important, and which upon first view might be thought most nearly to support the defendants’ position.
In Wright v. New York Central Railroad, 25 N. Y. 562, which was an action by a.bralteman on a railroad train for an injury received by him on a collision with another train run by the same corporation, and alleged to have been occasioned by the negligence of the corporation in employing an incompetent engineer and in ill arranging their time-tables, there was no evidence that the arrangement of the time-tables or the incompetency of the engineer contributed to the accident, or even that he was incompetent. In Hard v. Vermont & Canada Railroad, 32 Verm. 473, which was an action for an injury to an engineer of the defendants from a defect in one of their locomotive engines, it appeared, and was assumed in the defendants’ request for instructions which the court held should have been given, not only that the defendants used all due care in the selection of such engines and of proper and skilful persons to examine and repair them, and furnished sufficient and proper materials for that purpose; but also that it was no part of toe business of [443]*443their directors personally to inspect the condition of the engines, and that none of them either knew or suspected any defect in the engine which occasioned the accident; and the plaintiff did not contend, or offer any evidence, that the defendants or their directors ought to have known of the defect. In neither of these cases is any doubt cast upon the earlier decisions of the same courts, above cited.
In Tarrant v. Webb, 18 C. B. 797, the verdict for the plaintiff was set aside, because the jury had been instructed that the master was liable if the servant whose act caused the injury was incompetent, without requiring them to find whether the master knew, or, using due care, ought to have known, his incompetency ; thus in effect holding the master to warrant the competency of his servants, which he was clearly not bound to do.. In Searle v. Lindsay, 11 C. B. (N. S.) 429, the injury happened on a steamer while on a voyage, from a defect in machinery which had been in proper condition at the beginning of the voyage, and had been negligently suffered by the engineer of the vessel to get out of repair; and this the owners of the vessel could not have known. In Waller v. Southeastern Railway, 2 Hurlst. & Coltm. 102, in which the injury happened from the decayed condition of the treenails which fastened the chairs to the sleepers on the defendants’ railroad, solely by reason of the neglect of duty of the “ ganger ” or head of the platelayers, a servant of the defendants, whose duty it was to keep such things in proper repair or condition ; in Lovegrove v. London, &c. Railway, 16 C. B. (N.
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Gray, J.
The rules of law are now well settled, and were affirmed in the opinion already given in this case, and reported in 10 Allen, 236, that a servant, by entering into his master’s service, assumes all the risks of that service, which the master, exercising due care, cannot control, including those arising from the negligence of his fellow-servants; but that the master is bound to use ordinary care in providing suitable structures and engines and proper servants to carry on his business, and is liable to any of their fellow-servants for his negligence in this respect. This care he can and must exercise, both in procuring and in keeping or maintaining such servants, structures and engines. If he knows, or in the exercise of due care might have known, that his servants are incompetent, or his structures or engines insufficient, either at the time of procuring them, or at any subsequent time, he fails in his duty. For the management of bis machinery and the conduct of his servants, he is not responsible to their fellow-servants; but he cannot avail himself of this exemption from responsibility, when his own negligence in not [441]*441having suitable instruments, whether persons or things, to do his work, causes injury to those m his employ. He cannot divest himself of his duty to have suitable instruments of any kind, by delegating to an agent their employment or selection, their superintendence or repair. A corporation must, and a master who has an extensive business often does, perform this duty through officers or superintendents; but the duty is his and not merely theirs, and for negligence of his duty in this respect he is responsible. To hold otherwise would be to exempt a master, who selected all his machinery and servants through agents or superintendents, from all liability whatever to their fellow-servants, although he had been grossly negligent in the selection or keeping of proper persons and means for conducting his business. In the case of a corporation, the president and directors, at least, cannot be deemed mere servants, but must be considered as representing the corporation itself.
The rule, as applied to this case as now presented, may be briefly stated thus : A railroad corporation is bound to provide proper road, machinery and equipment, and proper servants. It must do this through appropriate officers. If, acting through appropriate officers, it knowingly or negligently employs incompetent servants, it is liable for an injury occasioned to a fellow-servant by their incompetency. If it continues in its employment an incompetent servant after his incompetency is known to its officers, or so manifest that its officers, using due care, would have known it, such continuance in employment is as much a breach of duty and a ground of liability as the original employment of an incompetent servant.
It is true that it is no ground for charging a master for an injury to his servant, that it resulted from the negligent act of a superintendent or other servant of a higher grade than the plaintiff, and whose orders the plaintiff was bound to obey. Albro v. Agawam Canal, 6 Cush. 75. Feltham v. England, Law Rep. 2 Q. B. 33. But in each of these cases, as well as in King v. Boston & Worcester Railroad, 9 Cush. 112, one of the reasons on which the master was held not to be liable was the want of evidence of any neglect on the master’s part in providing or [442]*442maintaining suitable agents or structures. If the incapacity of an agent or the insufficiency of a structure is known to the master, or has existed so long or under such circumstances that, exercising due care, he ought to have known it, he is responsible. Upon this ground it was held in Snow v. Housatonic Railroad, 8 Allen, 441, that a railroad corporation might be liable to one of its servants for an injury caused by a want of repair which had existed for two months in its road-bed, although it was the immediate duty of another servant of the corporation to see that the road-bed was kept in proper repair. Similar decisions have been made in many other states. Noyes v. Smith, 28 Verm. 59. Keegan v. Western Railroad, 4 Selden, 175. Ryan v Fowler, 24 N. Y. 410. Fifield v. Northern Railroad, 42 N. H. 225. Hayden v. Smithville Manuf. Co. 29 Conn. 548. Buzzell v. Laconia Manuf. Co. 48 Maine, 113. Upon examination of the cases to which we were referred as more narrowly limiting the liability of the master, we do not find that they establish any different rule. We shall state only a few of the most recent and important, and which upon first view might be thought most nearly to support the defendants’ position.
In Wright v. New York Central Railroad, 25 N. Y. 562, which was an action by a.bralteman on a railroad train for an injury received by him on a collision with another train run by the same corporation, and alleged to have been occasioned by the negligence of the corporation in employing an incompetent engineer and in ill arranging their time-tables, there was no evidence that the arrangement of the time-tables or the incompetency of the engineer contributed to the accident, or even that he was incompetent. In Hard v. Vermont & Canada Railroad, 32 Verm. 473, which was an action for an injury to an engineer of the defendants from a defect in one of their locomotive engines, it appeared, and was assumed in the defendants’ request for instructions which the court held should have been given, not only that the defendants used all due care in the selection of such engines and of proper and skilful persons to examine and repair them, and furnished sufficient and proper materials for that purpose; but also that it was no part of toe business of [443]*443their directors personally to inspect the condition of the engines, and that none of them either knew or suspected any defect in the engine which occasioned the accident; and the plaintiff did not contend, or offer any evidence, that the defendants or their directors ought to have known of the defect. In neither of these cases is any doubt cast upon the earlier decisions of the same courts, above cited.
In Tarrant v. Webb, 18 C. B. 797, the verdict for the plaintiff was set aside, because the jury had been instructed that the master was liable if the servant whose act caused the injury was incompetent, without requiring them to find whether the master knew, or, using due care, ought to have known, his incompetency ; thus in effect holding the master to warrant the competency of his servants, which he was clearly not bound to do.. In Searle v. Lindsay, 11 C. B. (N. S.) 429, the injury happened on a steamer while on a voyage, from a defect in machinery which had been in proper condition at the beginning of the voyage, and had been negligently suffered by the engineer of the vessel to get out of repair; and this the owners of the vessel could not have known. In Waller v. Southeastern Railway, 2 Hurlst. & Coltm. 102, in which the injury happened from the decayed condition of the treenails which fastened the chairs to the sleepers on the defendants’ railroad, solely by reason of the neglect of duty of the “ ganger ” or head of the platelayers, a servant of the defendants, whose duty it was to keep such things in proper repair or condition ; in Lovegrove v. London, &c. Railway, 16 C. B. (N. S.) 669, in which the defect was occasioned by the negligence of the servants of the defendants in laying down a temporary tramway ; and in Hall v. Johnson, 3 Hurlst. & Coltm. 589, in which the injury was caused by the negligence of an “underlooker” in the mode of working a mine; it was not contended that those holding the relation of master towards the plaintiff, namely, the master himself in the last case, and the officers of the corporation in tne other two cases, knew of the defect or had been guilty of any neglect whatever; and the principal question argued was, whether the plaintiff and the person whose negligence was the immediate cause of the injury were [444]*444fellow-servants. And this was the only question reserved ol decided in Morgan v. Vale of Neath Railway, 5 Best & Smith, 570, 736 ; S. C. Law Rep. 1 Q. B. 149.
In the case now before us, the jury were instructed that the plaintiff could not recover, without proving, 1st, that Shute was incompetent by reason of his habits of intoxication; 2d, that his habits were so well known that the officers of the defendants knew or in the exercise of due care would have known them ; 3d, that Shute was intrusted with the care of the switch by the superintendent or some officer authorized to employ switchmen, or managed the switch habitually or so frequently that the officers, using due care, would know that he had the management of it; 4th, that the plaintiff’s injury was the direct and immediate consequence of the act of Shute; 5th, that the plaintiff used due care, adapted to the circumstances in which he was placed.
As to the first of these requirements, no exception is taken to the instructions. It is indeed objected that the admission of evidence that Shute had the general reputation of being intemperate was erroneous. But such evidence was admitted, as the report expressly states, not for the purpose of showing that he was intemperate, but for the purpose of proving that his habitual intemperance, which there was other evidence tending to prove, was well known in the community. This fact was competent to show that the defendants, if they used due care, must have known that he was habitually intemperate, and therefore an unsuitable servant to be employed by them.
The second point which the plaintiff was required to prove was accurately defined, and the fifth instruction requested was rightly refused, for the reasons already given in discussing the general question of the defendants’ liability.
The third and fourth points which the plaintiff was required to prove fully met and covered the first and second instructions requested.
The third and fourth of the instructions requested were also covered by the instructions given, except so far as they suggested that the defendants would not be liable for an injury to which the negligence of the incompetent switchman and the negligence [445]*445of another servant of the defendants contributed. In that respect, they do not seem to have been applicable to the evidence introduced or the position taken by either party at the trial, and were therefore immaterial. If they had been applicable to the state of facts in proof, we are not prepared to say that they ought to have been given. See Cayzer v. Taylor, 10 Gray, 274; Eaton v. Boston & Lowell Railroad, 11 Allen, 500.
The point taken at the argument, that the plaintiff could not recover because he either knew the habits and reputation of Sbute, or was negligent in not learning them, was not taken at the trial, and cannot now be raised for the first time.
Judgment on the verdict.
Bigelow, C. J., did not sit in this case-