The only questions we need consider in this case are those which relate to the instructions to the jury given, at the instance of the plaintiff. The rule is well settled that as between employer and employe, there is no implied warranty on the part of the employer as to the fitness or soundness of the machinery furnished, or as to the competency of his other era - ployes. The law imposes upon the employer only the obligation to use reasonable and ordinary care and diligence in providing suitable and safe machinery, and in selecting and retaining in his employ ’competent and skillful employes. Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; C. C. & I. W. R. R. Co. v. Troesch, 68 Id. 545; Wright v. N. Y. Cent. R. R. Co. 25 N. Y. 562; North Chicago Rolling Mills Co. v. Monka, 4 Bradwell, 664; Price v. Henagan, 5 Id. 234; Shear. & Red. on Neg., Sections 86, 87 and 97, and authorities cited.
The plaintiff’s third instruction is manifestly at variance with this rule. It holds that the defendant, in the management of his business, “ Must provide and use properly constructed machinery, well constructed by competent and skillful workmen, out of good materials, and he must employ competent, skillful and prudent men to use such machinery, and in so doing they must be careful in its examination to see that it is in proper repair and in safe condition;” and that if the defendant is shown to have failed in the performance of his duty in any of these respects, and that the explosion in question resulted from such failure, thereby injuring the plaintiff, the defendant is liable. By the rule thus announced, the duty of the defendant to provide safe and suitable.machinery, and to employ competent, skillful and prudent men to operate it, was made absolute, thus in effect making him a warrantor or insurer of the sufficiency and safety of the machinery, and the competency of the employes in charge of it. The rule that his duty only extended to the use of reasonable and ordinary care and diligence in these respects was totally ignored.
But the instruction goes further, and holds not only that the defendant was bound to place his machinery in the hands of competent operatives, but that such operatives were bound to be careful in the examination of the machinery, to see that it was in proper repair and in safe condition, and that their failure so to do, if proved, rendered the defendant liable. This doctrine is announced without reference to the alleged relation between the plaintiff and the person in charge of the machine as fellow servants in the same line of employment. Whether they occupied that relation was a fact to be determined by the jury from the evidence, and the law is too well settled to admit of discussion, that an action will not lie by a servant against his employer for an injury sustained by reason of the negligence of his fellow servant in the same line of employment, where the employer has exercised due care and diligence in the selection of such fellow servant. T. W. & W. R’y Co. v. Moore, 77 Ill. 217 ; C. C. & I. C. R’y Co. v. Troesch, 68 Id. 545.
The plaintiff’s first instruction is- also obnoxious to serious criticism. It directed the jury to find the defendant guilty in case they believed from the evidence the following facts, viz : that any part of the machinery in question was defective; that it was not subjected to a careful examination by6prudent men on behalf of the defendant; that the explosion was caused by such defective part; and that the plaintiff was directly injured thereby, without being-'in any way connected with the management of the machinery.
Who were meant by the words, “ prudent men,” as here employed, is by no means clear, but it would seem to be most consistent with the general scope of the instruction to understand them as signifying men possessing peculiar prudence^ knowledge and skill in the construction and use of this particular machinery, or in other words, men who may be properly classed as experts in its use. It was undoubtedly the duty of the defendant to use reasonable and ordinary care and prudence, not only in the original selection of the machinery, but also in discovering imperfections and defects therein, and keeping it in repair. The particular means however which he was bound to use for the discovery of defects, was of necessity governed by the peculiar circumstances of the case, and involved a question of fact rather than of law. If under all the circumstances, a reasonably prudent man would have employed experts to examine the machinery to ascertain its condition, the defendant was bound to adopt that expedient, and not otherwise. But the instruction seems to enjoin its adoption as a legal duty, wholly irrespective of the nature and circumstances of the machinery, or of any other means the defendant had employed, or might have employed for the same purpose.
But the instruction is still more objectionable in another respect. It holds that the defendant, if he failed to procure a careful examination of the machinery by prudent men, was liable to the plaintiff for an injury caused by a defect therein, irrespective of whether the defect was of snch a nature as to he susceptible of discovery by examination or not. The rule is, that where an emplo/e suffers injury by means of a defect or insufficiency in the machinery or implements furnished by his employer, knowledge of the defect or insufficiency must be brought home to the employer, or proof made that he was ignorant of the same through his own negligence or want of care. In other words, it must be shown that he either knew, or by the exercise of reasonable diligence might have known, of the defect which caused the injury. Thus, a railroad company will not be held responsible for a latent defect in a boiler of an engine, or a flaw in a broken rail, of which it had no knowledge; everything to the eye appearing right, and the usual tests discovering no imperfection. . C. & A. R. R. Co. v. Platt, 89 Ill. 141; T. P. & W. R’y Co. v. Conroy, 61 Id. 162; T. W. & W, R’y Co. v. Ingraham, 77 Id. 309; C. C. & I. C. R’y Co. v. Troesch, supra.
If the explosion by which the plaintiff in this case was . injured was in fact the result of a defect in the gas-generator, the evidence fails to show the precise nature of the defect, nor does it appear that it was of such a character as to have been apparent upon examination, or discoverable by the application of any known tests. The defendant gave evidence tending to show that the machine, as originally made, was properly constructed, and that only a few months prior to the explosion it was thoroughly overhauled by experienced machinists, and put in complete repair. The only evidence tending to show that it was defective is that which is to be derived from the mere fact that it exploded. The strong inference, then, would be that if defective, its defects were latent. So far as appears, they may have been of such a nature as to have eluded the most careful examination of the most shillful experts. The instruction, then, was clearly erroneous in holding that the mere absence of an examination by prudent men was conclusive of the defendant’s liability.
The plaintiff’s second instruction was to the effect that the mere fact that the generator exploded, and that the plaintiff was in no way connected with its management, if proved, was prima facie evidence of negligence. Doubtless as between the proprietor of machinery and a mere stranger, an explosion would raise aprima facie presumption of negligence on the part of the proprietor, so as to throw on him the burden of rebutting such presumption by evidence. This is doubtless a reasonable rule, since the proprietor is held to be equally liable to a mere stranger, whether the explosion results from defects in the machinery or the negligence of his servant in charge of it. But the rule has never been extended to cases where the servant who was operating the machinery, or his fellow servant, was the injured party. T. W. & W. R’y Co. v. Moore, 77 Ill. 217; I. C. R. R. Co. v. Phillips, 55 Id. 194; Same v. Same, 49 Id. 234. In such cases the master would not be liable for the negligence of the servant, and the presumption that the explosion was caused by defects in the machinery would be no stronger than it resulted from the negligence of the servant in operating it.
The error in the instruction was not obviated in our opinion by the submission to the jury of the question whether the plaintiff was any way “ connected with the management of the generator.” This could have scarcely been understood by the jury as requiring them to find whether the plaintiff was a fellow servant, in the legal sense with the person who was operating it. The machine may have been under the exclusive control of O’Donnell, and still he and the plaintiff may notwithstanding have been fellow servants in the same line of employment.
For the errors in the foregoing instructions the judgment must be reversed. The point is made that the verdict is unsupported by the evidence, but as the case must be submitted to another jury, we forbear to discuss that proposition. The judgment will be reversed and the cause remanded.
Judgment reversed.