180 PREPARATION AND MANUFACTURE 



to have assumed the risk in standing where ordinary intelli- 

 gence would have indicated that there was danger. 1 



The negligence of an employer may also consist in the em- 

 ployment of an unskilful or incompetent person through 

 whose fault injury results to a fellow servant, but the negli- 

 gence of a skUfull and competent fellow-servant cannot 

 ordinarily be imputed to the master. 2 It is the duty of an 

 employee to report to his master, or to the one who hires 

 and discharges the workmen, the unskilfulness or incom- 

 petency of a fellow-servant, if known to him, and a failure 

 so to do indicates an assumption o'f the risk by himself. 3 



The determination of whether two persons may legally 

 be classed as fellow-servants is often a perplexing problem. 

 The test has been said to be subjection to the control and 

 direction of the same general master in the same common 

 object. 4 The theory of the assumption of risks because 

 of the relationship of fellow-servants has often been carried 

 to the extreme. It has been held that a locomotive engineer 

 operating an engine for hauling timber to a mill and for 

 transporting woodcutters to their work was a fellow-servant 

 of the woodcutters and that the common employer was not 

 liable for injuries to the latter caused by the negligence of 

 the engineer. 5 On the contrary, it has been held that an 

 inspector whose duty it was to prevent logs containing em- 

 bedded iron from passing through a sawmill was not a 

 fellow-servant of those engaged in sawing the logs and that 

 the common employer was liable for injuries suffered by 

 those within the mill through the negligence of the one em- 

 ployed to look for iron. 6 



A promise by a master to remedy a defective machine or to 

 replace an incompetent fellow-servant will not necessarily 

 charge the master with responsibility for a subsequent in- 

 jury to the promisee who continues in the work, but if the 

 work is not imminently dangerous, the question of whether 

 the employee was guilty of contributory negligence may 

 properly be submitted to a jury; 7 and it has been held that 



1. Demers v. Deering, (Me.) 44 Atl. 922. 



2. Ingram v. Dodge Lbr. Co. 33 S. E. 961. 



3. Weeks v. Scharer, 111 Fed. 330. 



4. Ingram v. Hilton & Dodge Lbr. Co. (Ga.) 33 S. E. 961. 



5. Rally v. Garbutt (Ga.) 37 S. E. 360. 



6. Covington Sawmill Mfg. Co. v. Clark, (Ky.) 76 S. W. 438. 



7. Cross Lake Logging Co. v. Joyce, 83 Fed. 989. 



