In such case there is no equality of knowledge. Stork v. Cooperage Co., 127 Wis. 322; Rollings v. Levering, 18 N.Y. 224; Guthrie v. R. R., 11 Lea, 372; Chicago v. Blivins, 46 Kan. 370; Newboer v. R. R., 60 Minn. 130; R. R. v. Amos, 20 Ind. 378. When a tool becomes defective and the employer has actual or constructive notice of the defect and the employee is ignorant of it the employer as a rule is liable for exposing the employee to a peril of which he had no knowledge. Fort Smith W. R. Co. v. Holcombe, 158 P. 633; Swain v. Chicago, R. I. P. R. Co., 170 N.W. 296, affirmed on rehearing, 174 N.W. 384.
" In Rollings v. Levering, 18 N.Y. 224, the tool or implement was a hook, which was furnished by a foreman, and the rule is thus stated: "The deceased, therefore, had no power of selection of hooks, but could only make use of the particular ones furnished. The hook became, therefore, an appliance used in and about the prosecution of the work, and the obligation rested upon the defendants to exercise reasonable care in furnishing a hook suitable and safe for the purpose to which it was to be applied.
The claimant's proof shows very clearly that the State was negligent in this respect and the decision that it was not was against the weight of evidence. The claim of the State, that even if there was negligence it was the negligence of a coservant, cannot be sustained upon the proof, because where defective machinery is furnished by a master in violation of the rule above stated, the rule which exempts him from liability for injury through the negligence of a fellow-servant does not apply. ( Kain v. Smith, 25 Hun, 146; affd., 89 N.Y. 375; Rollings v. Levering, 18 App. Div. 223.) Nor can it be held upon this evidence that the claimant assumed the risk. It appears that Mr. Coman had knowledge of the defect in the apparatus and that the claimant did not have such knowledge.