The opinion of the court was delivered, at the circuit session in September, 1856, by
Isham, J.This case comes before the court on a general demurrer to the declaration. The plaintiff, it is averred, was injured by the explosion of a locomotive engine, on which he was employed by the defendants, as engineer. It is admitted that the engine was insufficiently stayed or bolted around the fire box, and that it was also insufficient and unsafe in other respects, but that both parties were ignorant of those defects, and had no notice in fact that it was in an unsafe or insecure condition. That fact is directly averred in relation to the plaintiff, and the defendants are not charged with any such notice by any averment in the declaration. It is averred, however, that these defects would have been known to the defendants, but for the want of all proper care and diligence on their part. The inquiry arises, whether the facts stated are sufficient to. *62enable the plaintiff to recover; it being admitted that the plaintiff was in the exercise of proper skill and diligence when lie was injured.
The general rule seems to be well settled by the authorities, that there is nothing growing out of the mere relation of master and servant that raises the duty stated in the declaration. When there is no actual notice of defects in an engine of that character, and no personal llame exists on the part of the master, there is no implied obligation or contract on his part that the engine is free from defects, or that it can safely be used by the servant. The law imposes no such obligation. There are risks and dangers incident to most employments, and, especially is this true, in relation to such services as those in which the plaintiff was engaged. Those risks the parties have in view when engagements for services are made, and in consideration of which the" rate of compensation is fixed. In all engagements of that character, the servant assumes those risks which are incident to his service, and, as between himself and his master, he is supposed to have contracted on those terms. If an injury is sustained by the servant, in that service, it is regarded as an accident, a mere casualty, and the misfortune must rest on him. That is the doctrine, and the extent of the cases, to which we were referred by the defendant’s counsel. In the case of Priestly v. Fowler, 3 Mees. & Welsh. 1, it was held that the master was not liable to his servant for an injury sustained by him, from the breaking down of an overloaded van. Lord Abinger in that case observed, that “ from the mere relation of master and servant “ no contract, and therefore no duty, can be implied on the part of “ the master to cause the servant to be safely and securely carried, “ or to make the master liable for damage to. the servant, arising “ from any vice or imperfection unknown to the master, in the car- “ riage or in the mode of conducting or loading it.” The same doctrine is sustained in Seymour v. Madox, 5 Eng. L. & Eq. 265, and in the case of Couch v. Steel, 24 Eng. L. & Eq. 77. The principle, which is now well settled in England and this country, “ that a master is not liable to his servant for an injury occasioned “ by the negligence of a'fellow servant, in the course of their com- “ mon employment,” is founded upon the same reason. The liability of one servant to be injured by the carelessness of another, is *63a risk which the servant has assumed, as an incident to his employment, and for which the master is n'ot responsible. This general rule, however, has no application to either of those cases when there has been actual fault or negligence on the part of the master, either in the act from which the injury arose, or in the selection and employment of the agent which caused the injury. The case of Couch v. Steel, above cited, recognizes both the general rule and that qualification. In that case it was held, that, as there was no actual knowledge of the defective condition of the ship, and no personal Mame was imputed to the owner, a seaman could sustain no action for an injury sustained in consequence of its unsafe condition. The language of the court implies, that, had there been actual knowledge or if personal Marne had otherwise been imputed to the ship-owner, a liability would have existed. The case of Hutchinson v. Railway Company, 5 Wels., Hurls & Gord. 352, is a strong illustration of the principle. In that case, Alderson, B., after recognizing the general rule, that a master is not, in general, responsible to one servant for an injury occasioned to him by the negligence of a fellow servant, observed, that “ this must be taken “ with the qualification that the master shall have taken due care not “ to expose Ms servant to unreasonable risks. The servant,” he observed, “ when he engages to run the risks of his service, including “those arising from the negligence of fellow servants,-has a right “ to understand that the- master has taken reasonable care to pro- “ tect him from such risks, by associating him only with persons of “ ordinary skill and care.” There can be no doubt in relation to the doctrine of those cases, or the general principles on which they are founded. The master, in relation to fellow servants, is bound to exercise diligence and care that he brings into his service only such as are capable, safe and trust-worthy, and for any neglect in exercising that diligence he is liable to his servant for injuries-sustained from that neglect. It is not necessary that he should know that they are unsafe and incapable. It is sufficient that he would have known it, if he had exercised reasonable care and diligence. The same doctrine, is sustained in this country. 1 Am. L. C. 620; 5 Weis., Hurls & Gord. 357, note; Coon v. U. & S. Railroad Co., 6 Barber 231. There is no distinction in principle between those cases and the one under consideration, Upon the facts admitted *64by this demurrer, whatever may be the agent which the master brings into his service, whether animate or inanimate, the master is bound to exercise care and prudence that those in his employment be not exposed to unreasonable risks and dangers; — and the servant has a right to understand that the master will exercise that diligence in protecting him from injury, and also in selecting the agent from which it may arise. It is only such injuries as have arisen after the exercise of that diligence and care on the part of the master, that can properly be termed accidents or casualties, which the servant has impliedly agreed to risk, and for which the master is not liable. The doctrine is not controverted, that the defendants would be liable to the plaintiff for the injury he has sustained, if they had had notice in fact of the defective condition of the engine. It was so expressly decided in the case of Keegan v. Western Railroad Corporation, 4 Selden 175. There is no propriety, therefore, in saying that the defendants may be relieved from that liability by a want of such knowledge, when it has arisen from their gross neglect: for the neglect is gross, when the fact is, as is admitted by the demurrer, that hut for the want of all proper care and diligence, the unsafe condition of the engine would have been known to them. We think, upon the facts admitted by the demurrer, the plaintiff can sustain this action, and that the declaration is sufficient.
The judgment of the county court must be reversed, and judgment rendered for the plaintiff.