Alvey, J.,
delivered the opinion of the Court.
This is an action by an employó against his employer, to recover for an injury received while engaged in the work for which he was. employed, by reason of defective machinery that he was required to operate.
The plaintiff was a brakeman in the employ of the defendant, on one of its burden trains, and, while engaged in his ■work, he received the injury complained of, which was occasioned by an alleged defect in the brake to one of the cars that he was using in the regular course of his duty. The supposed defect consisted in the use of a hook instead of an eye-bolt on the brake, and in having the point of the hook turned the wrong way. In attempting to use the brake, in consequence of the defect, the plaintiff was suddenly thrown from the car to the track, and was caught between the brake-shaft and the trucks of the car and dragged a considerable distance, and seriously injured. He alleges that there was negligence on the part of the defendant in regard to the use of this defective brake, and that he is entitled to recover from the company the damages sustained by him as the consequence of such negligence.
It is now settled that there is no contract obligation im- \ posed upon the master, from the mere relation that he bears \to the servant, to provide machinery of any particular character or ¡description, to be operated by the latter, nor is there any implied undertaking on the part of the former,'resulting from the mere relation as employer, that the machinery shall be kept free from defects, such as may expose the servant to danger. The servant is a free agent to select the employment into which he enters, and in contracting for the wages that he is to receive, must be supposed to take into account the risks to which the employment may expose him; and among those risks are the defects and accidents of the machinery, and the negligence and want'of caution of fellow servants in the com[417] mon employment. To hold the master liable to the servant for all the injuries resulting to the latter from defects in machinery or materials upon which he may be employed, or from the negligence of fellow-servants^ engaged in the common employment, would go far to impede, if not to make it impossible to carry on, many of the great works of the country. All that can be required of the master, and for the neglect of which he is reponsible to the servant, is, that he shall use due and reasonable diligence in providing safe and sound machinery, and in the selection of fellow-servants of competent skill and prudence, so as to make it reasonably probable that injury will not occur in the exercise of the employment. He is required, also, as far as he can by reasonable care, to avoid exposing his servant to extraordinary risks, which could not have been reasonably anticipated at the time of the contract of service, though, as to such extraordinary risks, it would seem the master does not guarantee against them. Riley vs. Baxendale, 6 Hurl. & N., 446.
From these general principles it follows that the master is not liable to his servant for any injury occasioned by a defect of machinery furnished to the latter to operate, unless he was negligent in providing such machinery, or, if he knew of the delect, in omitting to warn the servant of its existence. And, where the defect producing the injury complained of, was the consequence of the incompetency or neglect of a fellow-servant, or where the origin of the defect did not appear, it has been held that the master was not liable to his servant, it not appearing that he had been guilty of negligence, either in selecting the fellow-servant or in providing the machinery in which the defect occurred. Tarrant vs. Webb, 18 C. B., 797; Ormond vs. Holland, El. B. & El., 102; Wigmore vs. Jay, 5 Exch., 354; Brown vs. Accrington Cotton Company, 3 Hurl. & C., 511.
"Who is a fellow-servant, within the meaning of the rule, has been a question of some diversity of decision, though the decided weight of authority is to the effect that all who serve [418] the same master, work under the same control, deriving authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades and departments of it, are fellow-servants, each taking the risk of the other’s negligence. Or, to state the rule more generally, in the language of a decision that has been approved by this Court, “all who are engaged in accomplishing the ultimate purpose in view — that is, the running of' the road — must be regarded as engaged in the same general business, within the meaning .of the rule.” Hard vs. Vermont and Canada R. Co., 32 Verm., 473; O’Connell vs. Balt. & Ohio R. Co., 20 Md., 212. It follows, therefore, that the brakeman on the train is in the same common employment with the mechanics, in the shops to repair and keep in order the machinery, and with the inspector of the machinery and rolling stock of the road, and the superintendent of the movement of trains. Farwell vs. Boston and Worcester R. Co., 4 Metc., 49; Hayes vs. Western R. Co., 3 Cush., 270; Sherman vs. Rochester and Syracuse R. Co., 17 N. Y., 153; Ryan vs. Cumberland Valley R. Co., 23 Penna. St. Rep., 382; Feltham vs. England, Law Rep., 2 Q. B., 33; Searle vs. Lindsay, 11 C. B., (N. S.,) 429. If, therefore, the defect in the brake that caused the injury in the present instance existed by reason of the-neglect or want of care on the part of such employés of the defendant, the latter cannot be held liable, unless there has been negligence in the selection of those servants, and the onus of proof of such negligence is on the plaintiff. 20 Md., 212; 25 Md., 462; 27 Md., 589.
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Alvey, J.,
delivered the opinion of the Court.
This is an action by an employó against his employer, to recover for an injury received while engaged in the work for which he was. employed, by reason of defective machinery that he was required to operate.
The plaintiff was a brakeman in the employ of the defendant, on one of its burden trains, and, while engaged in his ■work, he received the injury complained of, which was occasioned by an alleged defect in the brake to one of the cars that he was using in the regular course of his duty. The supposed defect consisted in the use of a hook instead of an eye-bolt on the brake, and in having the point of the hook turned the wrong way. In attempting to use the brake, in consequence of the defect, the plaintiff was suddenly thrown from the car to the track, and was caught between the brake-shaft and the trucks of the car and dragged a considerable distance, and seriously injured. He alleges that there was negligence on the part of the defendant in regard to the use of this defective brake, and that he is entitled to recover from the company the damages sustained by him as the consequence of such negligence.
It is now settled that there is no contract obligation im- \ posed upon the master, from the mere relation that he bears \to the servant, to provide machinery of any particular character or ¡description, to be operated by the latter, nor is there any implied undertaking on the part of the former,'resulting from the mere relation as employer, that the machinery shall be kept free from defects, such as may expose the servant to danger. The servant is a free agent to select the employment into which he enters, and in contracting for the wages that he is to receive, must be supposed to take into account the risks to which the employment may expose him; and among those risks are the defects and accidents of the machinery, and the negligence and want'of caution of fellow servants in the com[417] mon employment. To hold the master liable to the servant for all the injuries resulting to the latter from defects in machinery or materials upon which he may be employed, or from the negligence of fellow-servants^ engaged in the common employment, would go far to impede, if not to make it impossible to carry on, many of the great works of the country. All that can be required of the master, and for the neglect of which he is reponsible to the servant, is, that he shall use due and reasonable diligence in providing safe and sound machinery, and in the selection of fellow-servants of competent skill and prudence, so as to make it reasonably probable that injury will not occur in the exercise of the employment. He is required, also, as far as he can by reasonable care, to avoid exposing his servant to extraordinary risks, which could not have been reasonably anticipated at the time of the contract of service, though, as to such extraordinary risks, it would seem the master does not guarantee against them. Riley vs. Baxendale, 6 Hurl. & N., 446.
From these general principles it follows that the master is not liable to his servant for any injury occasioned by a defect of machinery furnished to the latter to operate, unless he was negligent in providing such machinery, or, if he knew of the delect, in omitting to warn the servant of its existence. And, where the defect producing the injury complained of, was the consequence of the incompetency or neglect of a fellow-servant, or where the origin of the defect did not appear, it has been held that the master was not liable to his servant, it not appearing that he had been guilty of negligence, either in selecting the fellow-servant or in providing the machinery in which the defect occurred. Tarrant vs. Webb, 18 C. B., 797; Ormond vs. Holland, El. B. & El., 102; Wigmore vs. Jay, 5 Exch., 354; Brown vs. Accrington Cotton Company, 3 Hurl. & C., 511.
"Who is a fellow-servant, within the meaning of the rule, has been a question of some diversity of decision, though the decided weight of authority is to the effect that all who serve [418] the same master, work under the same control, deriving authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades and departments of it, are fellow-servants, each taking the risk of the other’s negligence. Or, to state the rule more generally, in the language of a decision that has been approved by this Court, “all who are engaged in accomplishing the ultimate purpose in view — that is, the running of' the road — must be regarded as engaged in the same general business, within the meaning .of the rule.” Hard vs. Vermont and Canada R. Co., 32 Verm., 473; O’Connell vs. Balt. & Ohio R. Co., 20 Md., 212. It follows, therefore, that the brakeman on the train is in the same common employment with the mechanics, in the shops to repair and keep in order the machinery, and with the inspector of the machinery and rolling stock of the road, and the superintendent of the movement of trains. Farwell vs. Boston and Worcester R. Co., 4 Metc., 49; Hayes vs. Western R. Co., 3 Cush., 270; Sherman vs. Rochester and Syracuse R. Co., 17 N. Y., 153; Ryan vs. Cumberland Valley R. Co., 23 Penna. St. Rep., 382; Feltham vs. England, Law Rep., 2 Q. B., 33; Searle vs. Lindsay, 11 C. B., (N. S.,) 429. If, therefore, the defect in the brake that caused the injury in the present instance existed by reason of the-neglect or want of care on the part of such employés of the defendant, the latter cannot be held liable, unless there has been negligence in the selection of those servants, and the onus of proof of such negligence is on the plaintiff. 20 Md., 212; 25 Md., 462; 27 Md., 589.
The case of Searle vs. Lindsay, before referred to, well illustrates this. There the plaintiff was employed by the defendants as their third engineer on board their steam vessel. While turning a winch, one of the handles came off, in consequence of the want of a nut or pin to secure it, and the plaintiff was thereby seriously injured. He was, with others at work at ' the winch by the orders of the chief engineer, who knew that the instrument was out of order, but was, nevertheless, a com[419] petent pei’son for the position he occupied. There was no evidence of personal negligence on the part of the defendants, and it was held that the chief engineer and the plaintiff were fellow-servants, and that, as the defect existed by reason of the negligence of the chief engineer, whose duty it was to see that the machinery was kept in proper condition, the plaintiff could not recover. And, in the concurring opinion of Mr. Justice Williams in that case, the law is briefly but clearly stated that governs cases like the present. He said : “ I think there was no foundation for the argument that Simpson, the chief engineer of the vessel, and the plaintiff, stood in any other relation towards each other than that of ordinary fellow-servants. Then, applying the rule of law which is now firmly established, the common employer is not liable to either for an injury susiained through the negligence of the other. In order to take this case out of the ordinary rule, it was contended that here there was negligence on the part of the employers ithemselves. In order to make that out, there must be reasonable evidence to show that they were to blame, either in respect to their not having provided proper machinery and appliances, or not having retained competent workmen. I do not find any evidence at all of any default in either of these particulars. If the winch was out of order, it was owing to Simpson’s negligence. There was no evidence, nor any suggestion, that Simpson was not a perfectly competent engineer.” And such was the view of all the Judges.
In the case before us, the question, depending upon a diversity of opinion, as to whether the eye-bolt or the hook is the better mode of fastening the brake, is immaterial, as both seem to be approved appliances, tested by trial and experience; and if it were conceded that the eye-bolt has' superior merits, it by no means follows that the defendant was bound to discard the hook that had been used for a- long time, and on so many of its cars, without accident. A master is not bound to change his machinery, in order- to apply every new invention or supposed improvement in- appliances, [420] and he may even have in use a machine, or an appliance for its operation, shewn to be less safe than another in general use, without being liable to his servants for the consequences of the use of it. If the servant thinks proper to operate such machine it is at his own risk; and all that he can require is, that he shall not be deceived as to the degree of danger that he incurs. Dynen vs. Leach, 26 L. J. Exch., 221; 1 Redfield on Railways, 521, note.
(Decided 12th May, 1870.)
As to the defective attachment of the hook, it was shewn to have been the duty of the eipployés, Fairbanks, Buckingham and Day, to see that the cars and their appliances were kept in proper and safe repair. Whatever negligence, therefore, may have existed in regard to the arrangement of the brake, and of the defective attachment of the hook thereto, was the negligence of .those employés, the fellow-servants of the plaintiff; and there is an entire absence of evidence to show that there was the least negligence on the part of the defendant in the selection and employment of those servants; but, on the contrary, there is the most abundant evidence that such servants were of sufficient competency and skill; nor is there the slightest evidence in the case, that any superintendent or other agent, having control, and general direction of the employés, and for whose negligent conduct the defendant would be responsible to the plaintiff, ever had knowledge of the defective condition of the brake before the occurrence of the injury. The proof wholly failing in these important particulars, the Court below could not have done otherwise than instruct against the plaintiff. The essential proof of the gravaman of the action was wanting, and of course the plaintiff could not recover. The several prayers of the defendant were unobjectionable, and the Court was therefore right in granting them. And as by the granting of the defendants’ prayers the case was taken from the jury, the plaintiff’s prayer, which was rejected, became unimportant.
For these reasons the judgment will be affirmed.
Judgment affirmed.