Decided October 6, 1908.
On Petition for Rehearing.
[97 Pac. 555.]
Opinion by
Mr. Chief Justice Bean.9. The statement in the opinion heretofore filed that; if the injury to plaintiff was due to the failure of the hook tender to touch up the points of the hooks with a file furnished him for that purpose, it was the negligence of a fellow servant, for whose conduct defendant is not responsible, should he be so qualified as to make it applicable only in case the defendant neither knew, nor ■in the exercise of reasonable care might have known, of the defect.
10. It is the duty of the master to exercise reasonablcare to provide his servant with reasonably safe appliances and instrumentalities to work with, and keep them in that condition, and from the time an instrumentality is, or by the exercise of reasonable diligence might have been, *18known to be defective, an absolute duty on the part of the master aris'es either to remedy the defect or cease to use the instrumentality, although the dangerous condition was originally due to the negligence of a mere servant. Therefore, if the defendant, through its representative, the foreman, knew, or in the exercise of reasonable care might have known, that the hooks were dull and liable to drop the timber, and thereafter permitted them to be used in that condition, the defense of common employment is not available. La Batt, Master and Servant, § 568.
Petition denied. Reversed : Rehearing Denied.
Decided December 15, 1908.
On Motion to Retax Costs.
[98 Pac. 509.]
Per Curiam :Plaintiff recovered judgment in the court below, and defendant appealed. The judgment was reversed here, with costs. Defendant included in its cost bill an item of $71.10 for “transcribing testimony to incorporate in bill of exceptions.” This item was disallowed by the clerk, and it now moves to have the item taxed as a proper disbursement. '
11. We think the ruling of the clerk was correct. It was in accordance with a practice of long standing and the previous decisions of the court. Section 906, B. & C. Comp., provides that when shorthand notes have been taken in any case, as provided in the act authorizing the appointment of official reporters, if the court or either party to the suit or his attorney requests a transcript of the notes into longhand, the official reporter shall cause full and accurate typewritten transcripts to be made of the testimony, which shall be filed with the clerk of the court where such cause was tried for the use of the court or parties. The fees for making such transcript shall be paid forth*19with by the party for whose benefit the same was ordered, and when paid shall be taxed as other costs in the case. .Under this section either party to a suit or action may, upon request, have the stenographer’s notes transcribed into longhand and filed in the court, and the cost thereof taxed in the court below as other costs in the case. When so filed, the transcript becomes a part of the record, and may be used in making up a bill of exceptions the same as any other part of the record; but there is no more reason why the costs of copying it or any part thereof for use in a bill of exceptions should be taxed in this court than the expenses of making the bill itself, or copying therein an exhibit, or other matter of record.' It is the duty of appellant to prepare for the signature of the trial judge, a bill of exceptions containing so much of the evidence as is necessary to explain the exceptions taken, and, whether the clerical work is done by counsel or some other person, it is no part of the disbursements on the appeal, and cannot be taxed here as such. It was so held by this court in Ferguson v. Byers, 40 Or. 468 (67 Pac. 1115: 69 Pac. 32) and in Kunz v. O. R. & N. Co. (no opinion filed).
The ruling of the clerk is therefore affirmed.
Motion Denied.