| Me. | Jan 28, 1886
The verdict having been for the plaintiff, the question presented by the bill of exceptions is whether the
Without elaborating the variously expressed but universally acknowledged rule of law involved, it is sufficient to say: When the relation of master and servant is created between two persons by a simple mutual agreement, that one of them, at an agreed compensation, shall work for the other in the latter’s sawmill, all the terms of the contract are not expressed, and those not expressed are left to implication. In such case, it is implied' among other things, on the part of the master, that he shall use ordinary care and diligence in supplying and maintaining for the servant’s use in that more or less hazardous business, such saws and appliances as are reasonably safe. And the correlative implication on the part of the servant is, among other things, that he shall take upon himself the risks which ordinarily attend or are incident to the business in which he thus voluntarily engages.
The implied duty of the master being measured by the legal standard of ordinary care, his knowledge or want of knowledge of the actual condition of the machinery when it falls below the' legal standard of being reasonably safe and causes the injury,, becomes a material element. Buzzell v. Laconia Man'f Co. 48 Maine, 113, 122. Hence, although not a complete defence-necessarily, it is admissible for the defendant to testify that he had no knowledge or information of its defective condition. Boyle v. Mowry, 122 Mass. 251" court="Mass." date_filed="1877-03-05" href="https://app.midpage.ai/document/boyle-v-mowry-6418864?utm_source=webapp" opinion_id="6418864">122 Mass. 251. When the master, therefore, does not know of the dangerous condition of the machinery and, has exercised that standard of care in relation thereto, he has-discharged his duty and there is nothing of which negligence-can be predicated. And such is the result of all the cases. Hence writers upon this topic have said : " If the master knew or ought to have known, and the servant did not know, and was not bound to know of its existence, the liability of the master — the servant having been otherwise in the exercise of due care — is fixed. And it is equally true in every case, that unless the master knew of the defect which subsequently produced the-injury, or was under a duty of knowing it, he cannot be held’ liable.” 2 Thomp. Neg. 992-3. Or as the same view is expressed!
We are of opinion, therefore, ■ that since knowledge on the part of the master, or its equivalent — negligent ignorance — is essential to hold the master, the first instruction making the master’s liability absolute was not sufficiently favorable to the defendants and may have misled the jury. Having no occasion to pass upon the other exception, therefore, the entry must be,
Exceptions sustained.