McDonald v. Michigan Cent. R. Co formance of such duties to subordinates; but he remains responsible to all his servants for the acts of these subordinates in that particular capacity, to the same extent as if those acts were literally his own.' The doctrine of the text is ably supported by the citation of authorities." This case is cited with approval in Sadowski v. Car Co., 84 Mich. 100, 47 N. W. 598. After quoting from the case cited and from the argument of counsel the learned justice said: "But the ingenious reasoning of counsel fails to take account of an important limitation upon the rule which relieves a master from liability when a servant is injured through the fault of another. That doctrine was never applied unless the one injured and the one at fault were engaged in the same general employment. Whatever conflict has arisen in cases has been as to what should be considered the same general employment. The rule adopted by the federal courts, and in most of the states, and which seems to us most in consonance with reason and humanity, is that those employed by the master to provide or to keep in repair the place, or to supply the machinery and tools for labor, are engaged in a different employment from those who are to use the place or appliances, when provided, and they are not, therefore, as to each other, fellow servants. In such case, the one whose duty it is to provide and look after the safety of the place where the work is to be done represents the master in such a sense that the latter is liable for his negligence." In Ford v. Railroad Co., 110 Mass. 240, 14 Am. Rep. 598, it was said: "The agents who are charged with the duty of supplying safe machinery are not, in a true sense of the rule relied upon, to be regarded as fellow servants of those who are engaged in operating it. They are charged with a master's duty to his servant. They are employed in distinct and separate departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require." In Railroad Co. v. Herbert, 116 U. S. 653, 6 Sup. Ct. 596, 29 L. Ed. 755, Mr. Justice Field, speaking of the distinction that he found to exist between the providing of safe machinery and the business of handling and moving it, said: "The two kinds of business are as distinct as the making and repairing of a carriage is from the running of it." The case of Sadowski v. Car Co. was cited and quoted from in Roux v. Lumber Co., 94 Mich. 607, 54 N. W. 492. The distinction is well recognized that there is a difference between the duty of furnishing a safe place or safe appliance to the employee and the duty of seeing that the place or appliance so furnished is properly used. In McDonald v. Railroad Co., 108 Mich. 7, 65 N. W. 597, Justice Montgomery, speaking for the majority of the court, said: "The duty which the master owes to provide a reasonably safe place to work, and machinery in a reasonably safe McDonald v. Michigan Cent. R. Co condition, is not discharged for all time by providing machinery or premises safe in the first instance. Van Dusen v. Letellier, 78 Mich. 492, 44 N. W. 572. This duty cannot be discharged by providing for an inspection by a fellow servant, for wherever the duty of inspection, or the purpose of ascertaining whether there be necessity to repair, or whether the machinery is in a safe condition, exists, it is the master's duty. The duty of diligence in maintaining the machinery in a reasonably safe condition necessarily involves the duty of the master to take such reasonable measures to inform himself from time to time of the condition of the machinery as common prudence dictates." And such we understand is the law. See the many cases cited in the brief of counsel for the plaintiff. We now come to the consideration of the second question: Does the enactment of rule 50 relieve the defendant of liability? The material parts of the rule read as follows: "Conductors must know at all times that their train is provided with every thing necessary to enable them to comply with the regulations of the road. They are required to know that there is a reliable brake on the rear car, and that a proper man is kept at it while the train is in motion." It is the claim of defendant that the rule imposed upon the plaintiff the risk of all dangers discernible by a prudent inspection, and that the defect was easily discernible, counsel citing Brennan v. R. R. Co., 93 Mich. 156, 53 N. W. 358; Enright v. R. R. Co., 93 Mich. 412, 53 N. W. 536; Whalen v. M. C. R. R. Co., 114 Mich. 524, 72 N. W. 323; Peppett v. M. C. R. R., 119 Mich. 641, 78 N. W. 900. An examination of these cases will show they are easily distinguishable from the one at bar. In the first case plaintiff knew of the dangers which it was claimed constituted negligence, and he also violated a rule of the company of which he had notice, which forbade him to do the thing he did. In the second case the plaintiff was hurt because of the negligence of a fellow servant who was violating the positive requirements of a rule. In the third case the plaintiff was violating the requirements of a positive rule. In the last case cited, the following is stated in the opinion of the court: "The following facts are established by the evidence: (1) That the engine was properly constructed. (2) That the defendant had performed its full duty as to inspection. (3) It was the duty of the decedent both after coming in and before going out to inspect the engine, and after coming in, to minute in a book, kept for that purpose, any repair needed. He did make such inspection, but reported nothing wrong. The wearing, if any there was, was easily discernible. He therefore assumed the risk of such defect." It is hardly believeable that if the inspector at Grayling had made the inspection which it was his duty to make that the defect in the chain would have escaped his observation. It Murphy v. Baltimore & O. S. W. R. Co would have been easy for the framer of the rule to have said in so many words that the conductor should inspect the brake if the company intended to impose that duty upon him. The plaintiff testified that, before he started his train out in the morning, he tried the brakes at each end of the car in the usual and customary way, by setting them up and releasing them, and that they worked properly. It is manifest this was not such a severe test as the chain would be subjected to in an effort to stop a running train on a down grade. It also appears that portion of the brake mast, around which the chain winds, was below the platform of the car, and as the chain wound around it the wire would be concealed. There is nothing in the record to show that plaintiff neglected any duty imposed upon him by the rule. See R. R. Co. v. Parker, 131 Ill. 557, 23 N. E. 237. The case was carefully tried and properly submitted to the jury. Judgment is affirmed. GRANT, J., took no part in the decision. The other Justices concurred. MURPHY V. BALTIMORE & O. S. W. R. Co. (Court of Appeals of Kentucky, Feb. 3, 1903.) [71 S. W. Rep. 886.] Railroads-Injuries to Servant-Coupling Cars-Defective Coupling -Contributory Negligence. Plaintiff, a brakeman, was directed to couple certain cars equipped with a Buckeye automatic coupler, which, when in good condition, is operated by the brakeman, standing outside the track, by a lever running across the end of the car. The coupler in question was broken, to the knowledge of the railroad company's servants, but its condition was not ascertained by plaintiff until he attempted to use it, when it was necessary to raise the pin by hand. The train was about 25 feet away, backing down the grade; and, after discovering the condition of the coupler, plaintiff placed one foot inside the rail, raised the iron pin, in which position his arm was caught and crushed. Behind the car which was coupled were other cars, which were being loaded with live stock, on which persons were working; and, if the coupling had not been made, such persons and stock might have been injured, and plaintiff testified that it was partly to prevent this that he attempted to make the coupling: held, that plaintiff was not guilty of contributory negligence, as matter of law, sufficient to preclude his recovery. Appeal from circuit court, Jefferson county, law and equity division. "To be officially reported." Action by John F. Murphy against the Baltimore & Ohio Southwestern Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed. Geo. Weissinger Smith and O'Neal & O'Neal, for appellant. Barnett Gibson and Gibson, Marshall & Gibson, for appel lee. Murphy v. Baltimore & O. S. W. R. Co SETTLE, J. The appellant, John F. Murphy, while in the service of the appellee, Baltimore & Ohio Southwestern Railroad, as a brakeman upon one of its freight trains, in attempting to make a coupling had his arm caught between two cars, wounding and mangling it to such an extent as to require amputation between the elbow and shoulder. The petition alleges, in substance, that his injuries were caused by the negligence of the appellee in providing a defective engine for pulling its train of cars, and in failing to provide a good and sufficient coupler for one of the two cars which he was attempting to couple; that is, that the coupler on one of the cars was defective, and the chain belonging thereto broken, which defect made it dangerous for use. It is further averred in the petition that the defective condition of the coupler was known to appellee, but unknown to appellant, at the time of the injury. The answer denies the negligence complained of in the petition, and pleads contributory negligence on the part of appellant, which is denied by the reply. Upon the conclusion of appellant's evidence, the jury, under a peremptory instruction from the special judge, found for appellee; and, appellant's motion and grounds for a new trial having been overruled, he prosecutes this appeal. No effort was made in the trial court to show that the engine was defective, but appellant sought a recovery upon the sole ground that the coupler was defective and dangerous. The coupler complained of was what is known as a "Buckeye Automatic Coupler," which, when in good condition, is operated by a rod running across the end of the car, at right angles to the track. On the end of the rod a lever or crank is attached. A brakeman standing outside of the track may pull the lever, and thereby move the rod, which in turn draws a chain attached to an iron pin, which is raised by the use of the lever, and when so raised the only remaining duty is to open the knuckles on a plane with the earth's surface. If the coupler is in order, all this may be done in a moment, and the stationary car is thus made ready to automatically grasp the approaching car. It is manifest, therefore, that when the Buckeye coupler is in good order there can be little or no danger to the brakeman in making the coupling. Although the answer denies that the coupler was in a defective condition, in the brief of counsel for appellee it seems to be admitted that it was in fact defective, in that the chain attached to the pin was broken, and besides it is overwhelmingly shown by the evidence introduced in the court below that such was its condition. The proof also conduces to show that when in this defective condition the only practical way to make the coupler do its work is to insert the arm between the bumpers, take hold of the pin with the thumb and fingers, and lift it up, and at the same time pull the knuckles out with the hand; and it is further shown that, while attempting to operate the coupler in this way, appellant's arm was caught Murphy v. Baltimore & O. S. W. R. Co between the irons of the two cars when they came in contact. It is, we think, also conclusively shown by the evidence that the defective condition of the coupler was known, or by the use of ordinary care could have been known, to appellee's agents and servants whose duty it was to give attention to such things, some time before appellant's injuries were received. Upon the other hand, the evidence also shows that its condition was not known to the appellant until in the act of making the coupling. The coupling was done at Flora, Ill., under the following circumstances: At that point the conductor desired to take in his train some loaded cars standing on the side track. These cars were stationed behind a flat car loaded with lumber. By order of the conductor, appellant opened the switch and signaled the engineer to back the engine, to which was attached one freight car. The engine and car slowly backed down the grade, while appellant ran ahead, and he reached the lumber car when the backing train was about 25 feet away. He kept outside of the rails, and, when he reached the lumber car, pulled the lever out. As the chain was broken, the effort failed, of course, to draw the pin. This was the first warning that he received of the broken condition of the coupler. By this time the backing train had gotten in about 12 or 14 feet of him. It appears that about 20 feet behind the lumber car were two cars wholly or partly loaded with live stock, with one or more persons on them or at them, loading the stock. This fact was known to appellant, who doubtless also knew that if he failed to make the coupling the lumber car would probably be driven down grade against the cars upon which were the men and stock, by the collision with the backing train. Upon discovering the condition of the coupler, appellant placed one foot inside the rail, reached over the dead irons, and with his hand opened the knuckles and raised the iron pin, and in this position his arm was caught by the colliding cars and crushed as stated. The lower court, in granting the peremptory instruction, seems to have proceeded upon the idea, not that appellant was guilty of negligence in the manner of operating the defective coupler, but that his injury resulted from his negligence in failing to get out of the way of the approaching train after he discovered that the coupler would not work by the action. of the lever; and this conclusion seems to have been reached because of an answer made by appellant to a question upon cross-examination, to the effect that he might have stepped back after the discovery of the defect in the coupler before the cars met. We do not agree with this conclusion of the trial court, for, in our opinion, the question of whether the appellant was or not negligent should not be made to depend altogether upon whether it would have been possible for him to have escaped by stepping back from between the cars after he discovered the defect in the coupler, but whether, in the emergency presented, confronted as he was with the necessity |