The  rule  above  stated  may  have  needed  no  qualification  as
applicable  to  the  case  then  before  that  court.  The  court  had
already  declared  that ''  there  is  no  ground  for  an  apprehension
even  that  the  machine  or  its  appliances  had  been  impaired  by
use,  or  that,  for  any  reason,  it  was  less  safe  or  efficient  than  at
first";  and  again:  *'  If  there  was  any  defect,  it  must  have  been
in  its  original  construction";  and  it  held  that  the  undisputed
evidence  showed  that  the  machine  was  sufficient  in  its  con-
struction, and  was  of  a  kind  commonly  in  use  when  it  was  put
in,  and  that  it  was  plain  that  the  injury  to  the  plaintiff  was
caused  by  the  act  of  the  engineer,  who  was  a  fellow-servant
with  the  plaintiff.  In  the  present  case,  the  fact  that  no  per-
son had  previously  been  hurt  in  descending  the  shaft  was
entitled  to  much  weight;  but  in  our  opinion  it  was  not  conclu-
sive of  the  defendant's  due  care,  especially  in  view  of  the
evidence  tending  to  show  that  the  original  efficiency  of  the
brake  had  become  impaired.  The  defendant  also  urges  that
we  should  reach  the  same  conclusion  arrived  at  by  the  court
in  that  case,  to  wit,  that  the  injury  to  the  plaintiffs  was  caused
by  the  act  or  negligence  of  the  engineer.  But  this,  in  the  case
before  us,  was  a  matter  for  the  jury,  rather  than  for  the  court.
