Lore, C. J.,
(charging the jury.)
The law relating to this class of cases is quite well settled. In [347]*347the main, Counsel agree as to what the law is; their dispute chiefly arises as to its application.
This is a case of master and servant; and the rights, duties and obligations of that relation govern it.
The primary duties of the master are: First, to provide a reasonably safe place for the servant to work in or upon; second? to provide him with reasonably safe tools and machinery with which to do his work ; third, to employ reasonably competent and careful co-workers and fellow servants; fourth, to promulgate proper rules for the government of such servants, in operating his business, where the extent of that business exceeds the limits of his personal supervision.
The servant assumes no risk whatever as to these primary duties of the master when he accepts employment; but he does assume all the ordinary risks of the employment, including therein, the negligence of his fellow servant.
Question is raised in relation to the performance of only two of these primary duties of the master in this case; viz : first, the furnishing of a reasonably safe place. Second, the promulgation of proper rules. No question has been raised, as to the sufficiency of the tools or machinery, or to the competency of fellow workmen. It is admitted, that the car in which Rex was working at the time of the accident, was a safe place when he went there Therefore the lack of safety. was not inherent in, or a part of the car or place itself; but arose from the alleged failure of the company to give warning of the approach of the shifter. The danger was outside of the place itself and under the control of an independent human will.
If there was any such failure on the part of Chormann, whose duty it was to give notice, the liability of the company to answer for his negligence, depends upon whether in that act or failure to act, Chormann was a vice principal or agent performing a primary duty of the master, or was a fellow servant.
The business of altering and repairing cars, from the testimony in the case, involved the shifting of the cars into, about and [348]*348■out of the yard; that too, while the employes were working in and about the cars. This shifting was an operative part of the work in carrying on the business of the company. It was of frequent occurrence, with which Eex testifies he was familiar, and that he had theretofore worked in the cars when they were thus shifted on these tracks.
The giving of notice of the approach of danger where it does not enter into the creation of, or the maintenance of a safe place, is not necessarily a primary duty of the master; but a secondary duty, so to speak, which may delegated to competent fellow servants under proper rules. Notice is sometimes an incident to the safety of the place; a matter of executive detail, which ordinarily must of necessity, in operating large establishments, be entrusted to some independent human will other than that of the master; upon the faithfulness of which will, in the performance of duty it is reasonable to rely. It would be impracticable, if not impossible, for the master to perform such duties personally, with respect to every particular workman.
Under the undisputed facts in this case, it seems both upon principle and from the well considered cases; that the duty of giving notice of the approach of danger to Eex, by Chormann, was that of a fellow servant. The giving of such notice was a matter coming within that primary duty of the master, which is met, when he provides for its performance, by the promulgation of proper rules and regulations, and by the selection of competent fellow servants to carry them into effect.
It is unquestionably the duty of the master to give reasonable notice of danger to his employes and to take every other reasonable precaution for their protection and safety. Whether the actual giving of such notice, enters into and is a part of the master’s primary duty, depends on the facts and circumstances of each particular case.
This is not a case of defective walls, as in Giles vs. Diamond State Iron Company, 7 Houst. 463; of poisonous tanks, as in Williams vs. Walton & Wham Company, 9 Houst. 330; of [349]*349defective floors, as in Huber vs. Jackson & Sharp Company, 1 Marvel 374; of unsafe tools and machinery, as in Foster vs. Pusey, 8 Houst. 166; Quinn vs. Johnson Forge Company, 9 Houst. 338; or Chielinsky vs. Hoopes & Townsend Co., 1 Marvel 273 ; or the two cases last cited and much relied upon by the counsel for plaintiff, viz: the Union Pacific R. R. Co. vs. Daniels, 152 U. S. 588, which was a case of defective car wheels; and of the Northwestern Fuel Company vs. Danielson, U. S. C. C. A 636, which was a burning coal deck. It is not like most of the well considered cases cited by counsel in this cause, where the defects were either in the place itself, or in the tools and machinery with which the servant was working; and which do not therefore relate to notice of the approach of danger from without.
It is not the case of Stewart vs. the P., W. & B. R. R. Co., 8 Houst. 450, There the railroad company was not engaged in operating its road, but in an incidental department repairing its cars, in a shop for that purpose; under the personal charge of a foreman selected for, and then present overseeing that particular work. There were no rules promulgated or apparently necessary. The company relying upon the personal supervision of its foreman. It was in evidence, that the foreman had frequently been seen about the works under the influence of intoxicating liquor and was otherwise incompetent, and that the company retained him* as foreman after it had received notice of his incompetency. .
This point has been considered thus fully, because counsel for the plaintiff urged with so much earnestness and ability, that the giving of notice by Chormann to Rex, was a primary duty of the company, and could not be delegated so as to relieve it from liability, or made subject to be enforced by proper rules.
Our conclusion is, that in giving notice under the rules of the company of the approach of the shifter, Chormann was a fellow servant of Rex, and if he failed to give due notice, such negligence was the negligence of a fellow servant; of which Rex assumed the risk when he entered the employ of the company. The company [350]*350may not be held1 liable for such negligence, provided the rules of the company in that behalf were proper rules, to effect such purpose.
Wherever the master may discharge a primary duty, by the adoption of rules, and the appointment of competent persons to carry them into effect; such rules must be reasonably adequate to the ends sought to be accomplished. Where the rules on their face are manifestly not adequate; or where the mode of enforcing the rules as permitted and approved by the master demonstrate their inadequacy, and the master still pursues that mode; he would be liable for any injuries resulting therefrom. His immunity from liability, depends upon the reasonable sufficiency of the rules. One of the tests of such sufficiency is, that they have been in force for a considerable length of time, and in such trial have accomplished the purpose sought. The presumption of law is in favor of their sufficiency on a question of negligence.
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Lore, C. J.,
(charging the jury.)
The law relating to this class of cases is quite well settled. In [347]*347the main, Counsel agree as to what the law is; their dispute chiefly arises as to its application.
This is a case of master and servant; and the rights, duties and obligations of that relation govern it.
The primary duties of the master are: First, to provide a reasonably safe place for the servant to work in or upon; second? to provide him with reasonably safe tools and machinery with which to do his work ; third, to employ reasonably competent and careful co-workers and fellow servants; fourth, to promulgate proper rules for the government of such servants, in operating his business, where the extent of that business exceeds the limits of his personal supervision.
The servant assumes no risk whatever as to these primary duties of the master when he accepts employment; but he does assume all the ordinary risks of the employment, including therein, the negligence of his fellow servant.
Question is raised in relation to the performance of only two of these primary duties of the master in this case; viz : first, the furnishing of a reasonably safe place. Second, the promulgation of proper rules. No question has been raised, as to the sufficiency of the tools or machinery, or to the competency of fellow workmen. It is admitted, that the car in which Rex was working at the time of the accident, was a safe place when he went there Therefore the lack of safety. was not inherent in, or a part of the car or place itself; but arose from the alleged failure of the company to give warning of the approach of the shifter. The danger was outside of the place itself and under the control of an independent human will.
If there was any such failure on the part of Chormann, whose duty it was to give notice, the liability of the company to answer for his negligence, depends upon whether in that act or failure to act, Chormann was a vice principal or agent performing a primary duty of the master, or was a fellow servant.
The business of altering and repairing cars, from the testimony in the case, involved the shifting of the cars into, about and [348]*348■out of the yard; that too, while the employes were working in and about the cars. This shifting was an operative part of the work in carrying on the business of the company. It was of frequent occurrence, with which Eex testifies he was familiar, and that he had theretofore worked in the cars when they were thus shifted on these tracks.
The giving of notice of the approach of danger where it does not enter into the creation of, or the maintenance of a safe place, is not necessarily a primary duty of the master; but a secondary duty, so to speak, which may delegated to competent fellow servants under proper rules. Notice is sometimes an incident to the safety of the place; a matter of executive detail, which ordinarily must of necessity, in operating large establishments, be entrusted to some independent human will other than that of the master; upon the faithfulness of which will, in the performance of duty it is reasonable to rely. It would be impracticable, if not impossible, for the master to perform such duties personally, with respect to every particular workman.
Under the undisputed facts in this case, it seems both upon principle and from the well considered cases; that the duty of giving notice of the approach of danger to Eex, by Chormann, was that of a fellow servant. The giving of such notice was a matter coming within that primary duty of the master, which is met, when he provides for its performance, by the promulgation of proper rules and regulations, and by the selection of competent fellow servants to carry them into effect.
It is unquestionably the duty of the master to give reasonable notice of danger to his employes and to take every other reasonable precaution for their protection and safety. Whether the actual giving of such notice, enters into and is a part of the master’s primary duty, depends on the facts and circumstances of each particular case.
This is not a case of defective walls, as in Giles vs. Diamond State Iron Company, 7 Houst. 463; of poisonous tanks, as in Williams vs. Walton & Wham Company, 9 Houst. 330; of [349]*349defective floors, as in Huber vs. Jackson & Sharp Company, 1 Marvel 374; of unsafe tools and machinery, as in Foster vs. Pusey, 8 Houst. 166; Quinn vs. Johnson Forge Company, 9 Houst. 338; or Chielinsky vs. Hoopes & Townsend Co., 1 Marvel 273 ; or the two cases last cited and much relied upon by the counsel for plaintiff, viz: the Union Pacific R. R. Co. vs. Daniels, 152 U. S. 588, which was a case of defective car wheels; and of the Northwestern Fuel Company vs. Danielson, U. S. C. C. A 636, which was a burning coal deck. It is not like most of the well considered cases cited by counsel in this cause, where the defects were either in the place itself, or in the tools and machinery with which the servant was working; and which do not therefore relate to notice of the approach of danger from without.
It is not the case of Stewart vs. the P., W. & B. R. R. Co., 8 Houst. 450, There the railroad company was not engaged in operating its road, but in an incidental department repairing its cars, in a shop for that purpose; under the personal charge of a foreman selected for, and then present overseeing that particular work. There were no rules promulgated or apparently necessary. The company relying upon the personal supervision of its foreman. It was in evidence, that the foreman had frequently been seen about the works under the influence of intoxicating liquor and was otherwise incompetent, and that the company retained him* as foreman after it had received notice of his incompetency. .
This point has been considered thus fully, because counsel for the plaintiff urged with so much earnestness and ability, that the giving of notice by Chormann to Rex, was a primary duty of the company, and could not be delegated so as to relieve it from liability, or made subject to be enforced by proper rules.
Our conclusion is, that in giving notice under the rules of the company of the approach of the shifter, Chormann was a fellow servant of Rex, and if he failed to give due notice, such negligence was the negligence of a fellow servant; of which Rex assumed the risk when he entered the employ of the company. The company [350]*350may not be held1 liable for such negligence, provided the rules of the company in that behalf were proper rules, to effect such purpose.
Wherever the master may discharge a primary duty, by the adoption of rules, and the appointment of competent persons to carry them into effect; such rules must be reasonably adequate to the ends sought to be accomplished. Where the rules on their face are manifestly not adequate; or where the mode of enforcing the rules as permitted and approved by the master demonstrate their inadequacy, and the master still pursues that mode; he would be liable for any injuries resulting therefrom. His immunity from liability, depends upon the reasonable sufficiency of the rules. One of the tests of such sufficiency is, that they have been in force for a considerable length of time, and in such trial have accomplished the purpose sought. The presumption of law is in favor of their sufficiency on a question of negligence.
The printed or written rules in force at the time of the accident are in evidence. Practically they provide for giving actual notice to the workmen of danger from the shifter; and standing alone would be manifestly proper and adequate; but there is evidence of some oral addition to the rules, or to the mode of enforcing the rules, about which counsel do not agree and which is not entirely clear; there is such doubt, therefore, as to what the rule actually was, that we think that question under the evidence should be submitted to you; that you may ascertain from the evidence, what the rules actually were, and when so ascertained, whether they were such as a reasonably prudent man would promulgate and enforce, in the conduct of his business for the protection of his employes.
Taking the evidence upon this point therefore, as you remember it, relating to the oral addition to the rules, or to the mode of enforcing the rules, whichever it may be, if you believe that the said rules, or the mode of enforcing them as approved by the company, in effect did not provide for actual or reasonably sufficient notice to the plaintiff, the plaintiff would be entitled to recover. But if they did so provide, whether Chormann gave such notice or not, [351]*351your verdict should be for the defendant; bearing in mind that the presumption of law is in favor of the adequacy of the rules.
This being an action founded upon the negligence of the defendant, such negligence must be proved, and the burden of proof is upon the plaintiff.
If your verdict should be for the plaintiff, it should be for such reasonable sum, as will compensate him for his injuries, including therein all expenses for medical attendance, a reasonable allowance for nursing and drugs, for his loss of time and wages, and for his pain and suffering in the past, and such as may come in the future, resulting from the accident, and for such permanent injuries, as from the evidence, the jury may believe will cover his pecuniary loss from his diminished ability to earn a living in the future.
Verdict for the plaintiff.