This is an action by an employee against her employer to recover damages for a personal injury resulting from an alleged defect in the machinery provided for her use. It depends upon the obligations of the master to his servant while in his employment. The action has boon submitted to a jury and comes before us upon exceptions and a motion for a new trial.
The presiding justice gave the rule of law contended for by the defendants so far as it relates to their liability for an injury to the plaintiff' resulting from the negligence of a fellow-servant. But he further instructed them that “this is not a case where the rule in relation to the carelessness of a fellow-servant applies.” He then states where the rule does apply, and goes on to say, “but where the alleged carelessness relates to the machinery or roads or bridges connected with a factory, and constituting a part of it, if *424there is an omission, it is the omission of the master or employer, in contemplation of law.”
The first part'of this instruction is clearly correct. The declaration alleges an omission and neglect on the part of the defendants. It sets out no other cause of action. Whatever may have been the facts, or whatever may be the law in relation to the liability of the master for the negligence of his servants', in this action, if the plaintiff can recover it must be on the ground set out in her writ, that of an omission amounting to culpable negligence on the part of the defendants. True this omission need not necessarily be personal—in the present case a corporation being defendant it could act only by servants or agents—but it must be such if on the part of an employee as to be imputable to or legally that of the employer.
From the remainder of the instructions the jury could only infer that the defendants would be directly responsible for all defects in the machinery furnished, and under the writ and the facts in the case not only to exercise the proper care in providing fit and suitable machinery for the purpose intended and that which is as reasonably safe as its use will permit, but to use the same degree of care in keeping it in that condition. The degree of care requisite was undoubtedly explained to the jury, as no objections are raised upon that point. The objection seems to be that by the instruction, where in a case of this kind it is shown that through the want of such care of the machinery as the- law requires it is permitted to become and remain in a dangerous state, the fault is imputable to the master or employer, and he cannot excuse himself on the ground that it was through the negligence of an agent or servant.
This we have no doubt is good law. No objection is or could successfully be made to it as applicable to the machinery furnished in the first -instance. It is now too well settled to be doubted that the servant under his contract for service assumes such risks only as are incident to his employment. These risks include the use, not the purchase, of the machinery, as well as the dangers resulting from the carelessness, of a fellow-servant, not the responsibilities of hiring, in the first instance. Coombs v. New Bedford Cordage Co., 102 Mass. 572, and cases cited.
*425The same care requisite in biring a servant in the first instance must still be exercised in continuing him in the service; otherwise the employer will become responsible for his want of care or skill. The employer will be equally liable for the acts of an incompetent or careless servant whom he continues in his employment after a knowledge of such incotnpetency or carelessness, or when in the exercise of due care he should have known it, as if he had been wanting the same care in hiring. The same may very properly be said of the machinery. The servant has no more control of the repairs than of the purchase, no more responsibility for the one than for the other. The use of it is for him, and the risk of that use whatever it may be he assumes. That comes within his contract; but, as part of the same contract, the employer provides the means of carrying on the business; and as a matter of course he assumes the responsibility that his work shall be done with due care ; and, as the responsibility continues so long as the means are used, so must the same care be exercised in keeping the required means in the same safe condition as at first.
This doctrine has been so fully and satisfactorily discussed that it is unnecessary to do more than to refer to some of the later decisions. Buzzell v. Laconia Manufacturing Co., 48 Maine, 113. Gilman v. Eastern Railroad Co., 13 Allen, 433. Snow v. Housatonic Railroad Co., 8 Allen, 441. Ford v. Fitchburg R. Co., 110 Mass. 240. Lawler v. Androscoggin Railroad Co., 62 Maine, 463. Cayzer v. Taylor, 10 Gray, 274, 275.
It is however claimed that the machinery became injured and dangerous, if it were so, without the fault of any one and that its continuance in that condition to the time of the injury, if the result of negligence, was the fault of the superintendent whose duty it was to keep the machinery in repair and was therefore the carelessness of a fellow-servant, a risk which the plaintiff assumed. The facts contained in this proposition may be admitted. If the law is correct, undoubtedly the instructions were wrong as being too broad. The effect of them was as claimed; they took from the jury the consideration of these facts. But the principle of law here claimed is fallacious in several respects. Assuming that the superintendent was negligent, that negligence was indeed a remote *426but not the proximate 'cause of the injury. This was the immediate and necessary result of the defective machinery. It is only when the carelessness of a fellow-servant, in the use of the machinery or independent of it, causes the injury that it can be said to be the efficient cause so as to exempt the master.- In this case the defective machinery, for which the master was responsible, intervened between the carelessness and the injury and was of itself an independent and efficient cause of the accident.
Besides, the person whose duty it was to keep the machinery in order, so far as that duty goes, was not in any legal sense the fellow-servant of the plaintiff. To provide machinery and keep it in repair, and to use it for the purpose for which it was intended, are very distinct matters. They are not employments in the same common business, tending to the same common result. The one can properly be said to begin only when the other ends. The two persons may indeed work under the same master and receive their pay from the same soured; but this is not sufficient. They must be at the time engaged in a common purpose or employed in the same general business. Shearman & Redfield on Negligence, §§ 100 and 108. We do not now refer to the different grades of service about which there is considerable conflict of opinion, but of the different employment. In the repair of the machinery the servant represented the master in the performance of his part of the contract and therefore in the language of the instructions, his negligence in that respect, is the “omission of the master or employer, in contemplation of law.” Ford v. Railroad Co., above cited, p. 260.
The plaintiff, so far as regards the repair of the machinery, stands in the same position as any person not a servant but who was rightfully in her position; and the same responsibilities and liabilities rest upon the master for acts of himself or servant as would in such a case. Coombs v. New Bedford Cordage Co., before cited, p. 599. The instructions are in accordance with well settled principles of law, and the exceptions must be overruled.
This brings us to the motion for a new trial on the ground that the verdict is against the law and the evidence. There appears to be but little conflict of the testimony in the case; and such conflict *427is perhaps more apparent than real. As to the place where and the manner in which the accident happened the testimony comes mainly from the plaintiff and though some of the circumstances proved by other witnesses tend to throw doubt upon her statement, the jury must'have found it substantially true and we see no reason to disturb their finding in that respect. We assume then that she was injured through a defect in the machinery and one for which the defendants were liable, the defect having existed for so long a time that its condition must be imputed to culpable neglect on the part of the defendants.
But this alone is not sufficient to enable the plaintiff to maintain her action. She might herself have assumed all the risk and danger arising from the condition in which the machinery was. The duty of the master to furnish 'reasonably safe and suitable machinery is one which the servant may waive and it is claimed that she did so in this case.
The employer may undoubtedly exercise his own judgment as to the kind of machinery he will use, as well as to the condition in which it shall be kept. Having due regard to the rights of others he may do that which in his own view his interest may dictate or he may even be careless of that interest. But if he elects to use machinery unsuitable, or permits it intentionally or carelessly to get out of repair so that in its use the employee incurs more danger than fairly and naturally belongs or is incidental to the business or employment, another and a somewhat different duty devolves upon him. In such case he is required to give such information to the servant as will enable him to enter into his contract intelligently and with a full understanding of the unusual dangers he is to encounter. As ordinarily the employee assumes the responsibilities of such dangers as are naturally incident to the employment, so, by the same rule in the absence of any evidence to the contrary, his contract is presumed to cover all the risks of which he has knowledge. Sullivan v. India Manufacturing Co., 113 Mass. 396. To relieve the master from liability upon this ground it must appear not only that the servant had knowledge of the insufficiency of the machinery but that his age and experience or the instructions given him by the master or some one *428in his behalf were such as to enable him fully to understand and appreciate the dangers attending the employment. That he assumes the ordinary risks, the law will infer from the contract of service. If the master would impose upon him the extraordinary risks the burden is upon the master to show as matter of fact that such was the contract. Coombs v. New Bedford Cordage Co., before cited, pp. 585-6. Shearman & Redfield on Negligence, § 94 and note. Mere knowledge or even appreciation of the danger would not in all cases lead to the conclusion that the servant had assumed the risk. If such were the condition of things at the beginning of the service, the inference would follow. But if the danger arose from subsequent neglect with an expectation that repairs would be made with due diligence, it would seem that the servant might continue work with no more assumption of risk than would follow from such delay only as due diligence, would allow, though undoubtedly if by neglect of the master dangers accumulate, the servant at his option may abandon the contract.
In the case at bar the plaintiff not only had knowledge of the defect complained of, but if we may believe the testimony was fully instructed in and cautioned against the changes. She, herself states in her cross-examination “I knew all about it, knew it was dangerous.” She had also had the benefit of considerable experience in the business. But if this were all we might hardly feel justified in setting aside the verdict. The plaintiff was of a tender age; the jury saw her upon the stand and had full opportunity of judging of her intelligence and capacity, of appreciating the situation in which she was placed by what may be fairly assumed as the culpable negligence of the defendants. They also viewed the premises and saw the machinery as it was at the time of the accident, and though we discover no lack of intelligence on her part, from the reported testimony, their better opportunities may have justified their finding upon this point.
But this is not all. It is difficult to understand how the jury could have found that she, even for one of her age, was herself in the exercise of ordinary care. The testimony not only fails to show this affirmatively, but very clearly shows the contrary. That .she had knowledge of. the danger is conceded. This not only has *429a bearing upon the nature of the contract, but is entitled to very grave consideration upon the question of due care. It is not conclusive in all, or perhaps in most cases. Reed v. Northfield, 13 Pick. 94. Whittaker v. Boylston, 97 Mass. 273. But it is often of great weight depending upon the accompanying circumstances. If as in Coombs v. New Bedford Cordage Co., the plaintiff’s attention is for the time withdrawn from the danger by the requirements of the employment, its probative force would be diminished. But in this case the plaintiff’s employment at the time of the injury was such as necessarily to direct her attention to the danger. She was not using the machinery, so much as she was at work upon it, and if her attention was upon her work it must also have been upon that which caused the injury. Hence we can hardly account for the injury except upon the ground of inattention to her duties, as well as to the danger, the existence of which she was by no means ignorant.
But a matter more decisive of the plaintiff’s right to recover is the fact that the only inference which can bo drawn from the testimony is that her injury came to her while disobeying a rule adopted by the defendants regulating the very work in which the plaintiff was engaged. That the defendants had the right to make the rule is not denied. That it was reasonable and proper is evident from the fact that it was made for the protection of the operatives and if obeyed this injury could not have happened. It was in fact an indulgence to the servant. In relation to this matter, there is little or no conflict of testimony. The plaintiff by her own admission, fully understood that the frame was to be stopped at four o’clock for the purpose of cleaning the gearing. She says that did not give her time; but from her own testimony, as well as from that of others, there was an abundant time to clean the ends where the danger was, after the mill had stopped. Other parts of the frame could be cleaned with safety when the mill was running, this could not. She claims that she understood that she must clean it running, or “be sent out” if she stopped it, and says on one occasion she was so threatened.
But from her own statement it appears that she had stopped it out of time, and it does not appear that she stopped for the purpose *430of cleaning the ends. The testimony so decidedly shows a want of due care on her part, and that the injury occurred while she was acting contrary to a regulation made for her own protection, that we conclude that the verdict of the jury was the result of a failure to comprehend the case, or of a prejudice so strong as to prevent a candid exercise of their judgment. Motion sustained.
Appleton, C. J., Dioxerson, Barrows, "Virgin andLiBBEV, JJ., concurred.