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A. Backus, Jr. & Sons v. Detroit Western Transit Junction R. Co. 71 Mich. 645,
40 N. W. 60, holding the operation of a railroad by leasee does not change the
relations of the original company to the public; Palmer v. Utah & N. R. Co.
^ Idaho, 382, 16 Pac. 553; Aycock v. Raleigh & A. Air Liiie R. Co. 89 N. C. 321,—
holding railroad company leasing or permitting use of its road by another
xiompany is liable for mismanagement of train in charge of latter's servants;
Harden v. North Carolina R. Co. 129 N. C. 354, 85 A. S. R. 747, 56 L.R.A. 784,
40 S. E. 184, holding lessor of railroad liable for lessee's negligent operation of
the road; Townsend v. Rackham, 62 Hun, 231, 22 N. Y. Supp. 878, denying lia-
bility where the lease was authorized by statute; Muntz v. Algiers Sl G. R. Co.
Ill La. 423, 100 A. S. R. 495, 64 L.R.A. 222, 35 So. 624; McCoy v. Kansas City
«t. J. & C. B. R. Co. 36 Mo. App. 445; Latham v. Boston, H. T. A W. R. Co. SB
Hun, 265 ; Durfee v. Johnstown, G. & K. Horse R. Co. 71 Hun, 279, 24 N. Y. Supp.
1016; Lakin v. Willammette Valley & Coast R. Co. 13 Or. 436, 67 A. R. 25, 11
Pac. 68, — sustaining the liability; Ft. Worth Street R. Co. v. Ferguson, 9
Tex. Civ. App. 610, 29 S. W. 61, holding street railway company liable for personal
injury caused by lessee's negligence; Hukill v. Maysville & B. S. R. Co. 72
Fed. 745, holding where railroad leases its line, without legal authority, though
the lease is void, a servant of the lessee railroad, whose rights depend only upon
contract, and not upon any public duty, cannot recover against lessor for injuries
•caused by lessees* negligent operation of the road; Johnson v. Southern P. R. Co.
154 Cal. 285, 97 Pac. 520, holding that railroad can relieve itself from liability for
negligence in operating road by showing lease made by legislative authority.

Cited in reference note in 62 A. D. 617, on liability of railroad company for
negligence of its lessees.

Cited in notes in 71 A. D. 295, 296, on liability of railroada for torts of their

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no a:m. rep.] notes on amebican reports. . lue

lessees; 44 L.R.A. 739; 66 L.R.A. 143; 48 A. R. 580,— on railroad's liability for
lessee's negligence; 68 A. S. R. 148, on liability of lessor of railway to persons
otiier than tlie lessee; 37 L.R.A. 83, on responsibility of grantee of public fran-
chises for acts of servants of lessee in possession under unauthorized contract;
44 L.R.A. 742, 746, 748, on effect of authority to lease railroad on lessor's lia-
bility for injuries caused by negligence of lessee.

Distinguished in Cain v. Syracuse, B. & N. Y. R, Co. 27 App. Div. 376, 50
N. Y. Supp. 1, denying liability where contract allowing use of the road by
another company was authorized by statute.
Duty of railroad to perform public functions.

Cited in People v. New York, L. E. & W. R. Co. 40 Hun, 570, holding duty to
furnish suitable passenger and freight houses at a station may be enforced by
mandamus; People v. New York C. & H. R. R. Co. 28 Hun, 543, 3 N. Y. CIt.
Proc. Rep. 11, 2 N. Y. Civ. Proc. Rep. (McCarty) 345, upholding power of state
to compel railroad corporation to discharge its duties by mandamus.

30 AM. REP. 575, FULLER ▼. JEWETT, 80 N. Y. 46.
Liability of master for his negligence to servant where negligence of
fellow-servants contributed to the injury.

Cited in Shiner v. Russell, 6 N. Y. S. R. 78, holding the master liable; Dough-
erty V. Rome, W. & 0. R. Co. 45 N. Y. S. R. 154, 18 N. Y. Supp. 841, holding if
fellow servant's negligence contributed to servant's injury, that would not re-
lieve the railroad company from result of its failure to keep its cars in safe con-
dition for use of its employees; Stringham v. Stewart, 100 N. Y. 616. 3 K. E.
480, holding master furnishing dangerous and defective machine is not excused
from liability for injury to servant, by the fact that the negligence of a fellow
servant co-operated in producing the injury; Pittsburgh, C. & St. L. R, Co. v.
Henderson, 37 Ohio St. 549, holding in action against railroad by one of its em-
ployees for personal injuries sustained by dangerous enforcement of unreasonable
order made by the company's superintendent as to management of a train, the
fact that the employee's fellow servant caused the injury, is no defense to the
action; Chiavaroli v. Union Bag & Paper Co. 131 App. Div. 372, 115 N. Y. Supp.
327, holding that co-operation of negligence of fellow servant with that of
master does not excuse latter.
Delegability of duties of master towards servant.

Cited in Glasso v. National S. S. Co. 27 App. Div. 169, 50 N. Y. Supp. 417, deny-
ing the right to delegate absolute duty for safety; Burns v. Merchants' & P.
Oil Co. 26 Tex. Civ. App. 223, 63 S. W. 1061, holding master's duty to protect
servant is nonassignable and he is liable for the negligence of person entrusted
with such duty.

Cited in notes in 41 L.R.A. 118, on nonassignability of employer's duty as to
inspection; 41 L.R.A. 122, on assignability of master's duty of inspection as
dependent upon distinction between the furnishing and the use of agencies;
54 L.R.A. 79, on nondelegable duties of master as to defective locomotives.
Liability of master for negligence of servants in providing for safety.

Cited with special approval in O'Donnell v. East River Gas Co. 91 Hun, 184,
30 N. Y. Supp. 288, holding master's duty to furnish his employees with proper
appliances cannot be delegated so as to relieve the master from liability.

Cited in Higgins v. Williams, 114 Cal. 176, 45 Pac. 1040; Denver & R. G. R.
Co. V. Sipes, 26 Colo. 17, 55 Pac. 1093; Hillis v. Hine, 11 N. Y. S. R. 656;

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Indiana Car Co. v. Parker, 100 Ind. 181, — holding master's duty of providing
safe and suitable machinery for use of his employees, and of keeping it in
safe condition, cannot be delegated to an agent so as to relieve himself of liability
for injuries to employees caused by neglect of such duties; Courtney v. Cornell,
17 Jones & S. 286, holding master employing a foreman to rig a derrick is
liable for injury to servant caused by foreman's negligence in so doing; Dervin
v. Herman, 23 Jones & S. 274, holding master, employing person to repair de-
fective elevator, is liable for injuries to servant caused by such person's leaving
the elevator in unsafe condition; Baltimore & 0. R. Co. v. Henthorne, 19 C. C. A.
623, 43 U. S. App. 113, 73 Fed. 634; Mann v. Delaware & H. Canal Co. 91 N. Y.
495, — holding master delegating his duty to use due care in selecting com-
petent fellow servants to another is liable for the latter's negligent performance
of such duty; Fox v. LeComte, 2 App. Div. 61, 37 N. Y. Supp. 316, holding master
entrusting his duty to provide safe appliances for his servant to a machinist is
liahle for the latter's neglect; Webber v. Piper, 38 Hun, 353 (dissenting opinion),
on same point; Eaton v. New York C. & H. R. R. Co. 163 N. Y. 391, 79 A. S. R.
600, 57 N. E. 609; Kain v. Smith, 25 Hun, 146,— holding master delegating his
duty to furnish safe machinery or appliances to employees is liable for his
agent's default of such duty; Fraker v. St. Paul, M. & M. R. Co. 32 Minn.
54, 19 N. W. 349; Stauber v. McEntee, 29 Jones & S. 338, 19 N. Y. Supp. 900,—
on same point; Re California Nav. & Improv. Co. 110 Fed. 670; Bagley v. Con-
solidated Gas Co. 13 Misc. 6, 34 N. Y. Supp. 187, — ^holding if master delegates
duty of providing safe place of work for servant to another servant, the master is
liable for negligence in its performance; Northern P. R. Co. v. Herbert, 116 U. S.
642, 29 L. ed. 755, 6 Sup. Ct. Rep. 590; Gerrish v. New Haven Ice Co. 63 Conn.
9, 27 Atl. 235; Ford v. Lake Shore & M. S. R. Co. 124 N. Y. 493, 12 L.R.A.
454, 26 N. E. liOl; Anderson v. Bennett, 16 Or. 515, 8 A. S. R. 311, 19 Pac.
765, — holding master liable for negligent performance of duty he owes his
servants, by person with whom he entrusts such duty; Howard v. Denver & R. G.
R. Co. 26 Fed. 837; Delaney v. Hilton, 18 Jones & S. 341,— on same point;
Wellston Coal Co. v. Smith, 65 Ohio St. 70, 87 A. S. R. 547, 55 L.R.A. 99, 61
N. E. 143, holding duties of mine boss cannot be delegated so as to relieve coal
company from liability for negligence in discharge of duties of mine boss.

Cited in notes in 54 L.R.A. 134, on master's nonliability for negligence of
fellow servants in transmission of master's orders; 63 L.R.A. 231, on official
liability of receivers for torts or negligence of servants.

Distinguished in Hart v. New York Floating Dry Dock Co. 16 Jones & 8.
460, denying master's liability for death of servant caused by negligence of fellow
servant not acting as alter ego of the master.
— As to railroad engines and cars.

Cited in Indiana, I. & I. R. Co. v. Snyder, 140 Ind. 647, 39 N. E. 912, holding
railroad company liable for injuries to a section hand caused by defective hand
car handle made and put in place by the company's carpenter with knowledge of
its defect; McDonald v. Michigan C. R. Co. 108 Mich. 7, 65 N. W. 597, on
liability of railroad company appointing engineer to apprise it of defective con-
dition of locomotive for injuries to engineer's fellow servant caused by such
engineer's neglect of such duty; Dewey v. Detroit, G. H. & M. R. Co. 97 Mich.
329, 37 A. S. R. 348, 22 L.R.A. 292, 56 N. W. 756, on liability of railroad com-
pany to brakeman injured by neglect of the company's inspector to inspect brakei
and appliances on the cars.

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DUtinguished in McDonald v. New York C. & H. R. R. Co. 63 Hun, 587, 18 N.
Y. Supp. 609, holding railroad company not liable for death of its flagman eao^
by negligence of engineer in failing to have his engine repaired, if the engineer
is a fellow servant of the flagman, and the engine was inspected by the com-
pany's expert on the same day and found in good condition; Slater v. Jewett,
85 N. Y. 61, 39 A. R. 627, holding negligent transmission of train orders was
* fellow servant's act and rule as to provision of safety did not apply.

— Duty of Inspection.

Referred to as leading case in McKnight v. Brooklyn Heights R. Co. 23 Misc.
527, 51 N. Y. Supp. 738, holding master's duty to inspect harness of street car
horse driven by its servant cannot be delegated to "head changer" and his assist-
ants, although competent persons, and the master is liable for negligent perform-
ance of such duty by such employees.

Cited in Byrne v. Eastmans Co. 163 N..Y. 461, 67 N. E. 738, holding master
committing his duty to inspect appliance used by servant to another is liable
for the latter's default; Franck v. American Tartar Co. 91 App. Div. 571, 87
N. Y. Supp. 219, holding master cannot delegate duty of inspection to an em-
ployee, so as to relieve himself from liability for such employee's failure to prop-
erly perform that duty; Dittman v. Edison Electric Illuminating Co. 87 App.
Div. 68, 83 N. Y. Supp. 1078, on same point; Union P. R. Co. v. Daniels, 152
U. S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756, holding railroad company delegat-
ing duty to inspector of seeing that wheels of train of freight cars are in safe
condition is liable to its brakeman injured by inspector's negligent performance of
such duty.

— Inspection of boilers for safety.

Cited in Cleveland, C. C. & St. L. R. Co. T. Ward, 147 Ind. 256, 45 N. E.
325, holding it for jury on the evidence to say whether an inspection for broken
stay bolts was a fulfillment of proper care by master; Woods v. Chicago & G.
T. R. Co. 108 Mich. 396, 66 N. W. 328, holding railroad company liable for in-
juries to engineer caused by explosion of locomotive boiler because of the failure
of the company's inspector to properly inspect the boiler; Egan v. Dry Dock,
E. B. & B. R. Co. 12 App. Div. 556, 42 N. Y. Supp. 188, holding if master's duty
of inspection of a boiler was negligently performed, even by a competent inspector,
the master would still be liable.
Who are fellow-servants.

Cited in The City of Alexandria, 17 Fed. 390, denying liability of owners of a
vessel for injury to a seaman caused by negligence of his associates of unequal-
grade; Fink V. Des Moines Ice Co. 84 Iowa, 321, 51 N. W. 155, holding person
to whom master delegates duty of providing his employees with suitable appli-
ances for their work is not a fellow servant of the employees within rule appli-
cable to injuries caused by fellow servants; Jaques v. Qreat Falls Mfg. Co. 66
N. H. 482, 13 L.R.A. 824, 22 Atl. 552, holding a loom-flxer in a cotton miU,
whose duty is to keep looms in repair, is not fellow servant of the weavers ^n-
ployed at the looms, within rule that master is not liable for injuries caused b?
fellow servant's negligence; Gunter v. Graniteville Mfg. Co. 18 S. C. 262, 44 A. B.
^73, holding a workman, employed by cotton manufacturer to keep machinery of
mill in order and repair, is not a fellow servant with a weaver in the factory
so as to exempt the employer from liability for injury to the weaver caused by
negligence of such workman; Cadden v. American Steel Barge Co. 88 Wis. 409,
60 N. W. 800, holding a riveter on whaleback vessel and acaffold builders sup-

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plied for the riveters by defendant and who placed the scaffolds in position under
his direction without assistance from the riveters, are not fellow servants;
Clavin V. William Tinkham Co. 29 R. I. 699, 132 A. S. R. 836, 73 Atl. 392, hold-
ing that loom-fixer was not fellow servant of person running loom.

Cited in notes in 53 A. R. 46 ; 1 A. S. R. 33 ; 36 A. D. 289, — on who are fellow
servants; 75 A. S. R. 696, on persons performing master's duties as vice prin-
cipals; 75 A. S. R. 636, on superintendents as vice principals; 54 L.R.A. 164,
on employyes engaged in repairing as coservants of each other.
Liability of master for unsafe machinery or facilities furnished for use
of servant.

Followed in Millott v. New York & N. E. R. Co. 46 N. Y. S. R. 145, 19 N. Y.
Supp. 122, sustaining recovery by brakeman pinched between drawheads of
unequal height.

Cited in Smith v. Peninsular Car Works, 60 Mich. 601, 1 A. S. R. 542, 27
N. W. 662, holding if employee received no notice or had no knowledge of perils
incident to is employment, he cannot be charged with contributory negligence
in case of injury; Herbert v. Northern P. R. Co. 3 Dak. 38, 13 N. W. 349; Tierney
V. Minneapolis & St. L. R. Co. 33 Minn. 311, 53 A. R. 35, 23 N. W. 229,—
holding it is railroad company's duty to provide safe and proper machinery and
instrumentalities for its employees, and to keep them so; Rigdon v. Allegany
Lumber Co. 37 N. Y. S. R. 514, 13 N. Y. Supp. 871, holding employees have
right to assume that, so far as ordinary diligence can accomplish it, the master's
premises and appliances are safe; Kain v. Smith, 80 N. Y. 458, holding master
liable; Dervin v. Herman, 23 Jones & S. 274, holding master liable for injuries to
servant caused by defective condition of an elevator used by the servant in
performance of his duties; Larmore v. Crown Point Iron Co. 101 N. Y. 391,
54 A. R. 718, 4 N. E. 752, on duty of employer to exercise reasonable care in
providing safe machinery and appliances for his servant's use; Goodrich v.
New York C. & H. R. R. Co. 116 N. Y. 398, 15 A. S. R. 410, 5 L.R.A. 750, 22
N. E. 397, holding railroad liable for injuries to its brakeman caused by de-
fects in cars of another company which it used upon its road if such defects
would be discovered by ordinary inspection; Jones v. New York C. & H. R. Co.
28 Hun, 364, holding railroad liable for death of its brakeman caused by defective
rung used in ladder at side or end of a freight car; Near v. Delaware & H,
Canal Co. 32 Hun, 557, holding railroad company liable for death of its brake-
man caused by its failure to keep its track in good repair; Bailey v. Delaware &
H. Canal Co. 27 App. Div. 305, 50 N. Y. Supp. 87, denying master's liability to an
employee crushed, while coupling two cars, by timber projecting over one of them,
through negligence in loading it; Van Tassell v. New York, L. E. & W. R. Co.
1 Misc. 299, 20 N. Y. Supp. 708, 48 N. Y. Supp. 767, holding it duty of rail-
road company to maintain foot rest of brakestep on freight car in a condition
^t and suitable for purpose of its use; Umback ▼. Lake Shore & M. S. R. Co. 83
Ind. 191; Kerrigan v. Hart, 40 Hun, 389; Griffiths v. New Jersey & N. Y. R. Co.
5 Misc. 320, 25 N. Y. Supp. 812, — denying liability of master insurer of sufficiency
or safety of the machinery or facilities furnished for servant's work, but hold-
ing him liable for exercise of reasonable care in that respect; Pennsylvania Co.
▼. Long, 94 Ind. 250; Probst v. Delamater, 100 N. Y. 266, 3 N. E. 186,—
on same point; Devlin v. Smith, 89 N. Y. 470, 42 A. R. 311, 11 Abb, N. C. 322
(reversing 25 Hun, 206 in part), holding if injury to an employee results from
•defective implements used in his work, knowledge of the defects must be brought

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home to employer, or proof given that he omitted exercise of proper care to dis-
cover it, iu order to render him liable; HoUa v. New York C. & H. R. R. Ca
2 Silv. Sup. Ct. 698, 6 N. Y. Supp. 605, 25 N. Y. S. R. 525, holding railroad
company not liable for injury to brakeman caused by defective brake, if there
is no showing that the defect was known, or could have been discovered before
the accident occurred; Norfolk A W. R. Co. v. Ampey, 93 Va. 108, 25 S. E. 226,
holding if master knows, or by use of ordinary care would have known of defects
in the machinery, in consequence of which the servant is injured, he is liable;
Preschel v. Chicago, M. & St. P. R. Co. 62 Wis. 338, 21 N. W. 269 (dissenting
opinion), on duty of master to furnish employees with suitable and safe machin-
ery with which to do their work; Alabama G. S. R. Co. v. Carroll, 28 C. C. A.
207, 52 U. S. App, 442, 84 Fed. 772, on same point.

Cited in reference note in 10 A. S. R. 752, on liability of master for injury
to servant from defective machinery.

Cited in notes in 59 A. R. 75, 79, on master's duty to furnish safe appli-
ances; 1 L.R.A. 699, on master's duty to furnish safe machinery and tools:
13 L.R.A. 375, on master's duty to furnish safe tools not absolute; 54 L.R^. 41,
45, on master's responsibility for negligence involving breach of one of his
personal duties.

Distinguished in Cregan v. Marston, 126 N. Y. 568, 22 A. S. R. 854, 27 N. E
952, denying master's liability if the defects in the machinery or appliances aris*^
in its daily use, and do not require help of skilled mechanics to repair, but which
may be easily repaired by the workman with materials with which he is sup-
plied; Stowrbridge v. Brooklyn City R. Co. 9 App. Div. 129, 41 N. Y. Supp.
128, on liability of master for breaking of defective beam on an elevated rail-
road structure, used by a workman as a support from which to work; McCone
V. Gallagher, 16 App. Div. 272, 44 N. Y. Supp. 697, denying master's liability
for injuries to employee by fall of scaffold built by employees as part of their
work; Hanrahan v. Brooklyn Elev. R. Co. 17 App. Div. 588, 45 N. Y. Supp. 474,
holding master not liable for death of its car inspector by a car '^kicked" ajrainst
car he was inspecting through failure of brake on the colliding car to work where
latter car was properly inspected before leaving the yard and found to be in
good condition; Pickett v. Atlas S. S. Co. 1 N. Y. City Ct. Supp. 48, denying
master's liability in absence of proof that servant's injury was caused by
unsafe machinery and appliances; W. R. Trigg Co. v. Lindsay, 101 Va. 193, 43
S. E. 349, denying liability of master for negligence of plaintiff's fellow servant
while assisting plaintiff in the erection of machinery, and not in its use.

— Injury from defective steam boiler.

Cited in McDonough v. Clonbrock Steam Boiler Co. 113 App. Div. 432, 99
N. Y. Supp. 263, on liability of master for injury to servant by the giving away
of an iron gallery which is a constructive part of a boiler which servant is em-
ployed to construct where the accident was caused by defective riveting done at
another period of time by other servants.

Distinguished in Murphy v. Boston & A. R. Co. 88 N. Y. 146, 42 A. R. 240,
holding railroad company not liable for death of its servant caused by ex-
plosion of locomotive boiler through the negligence of fellow servants where the
locomotive was placed in the servant's hands for repair and not for use.

— Liability of receiver operating railroad or plant.

Cited in Graham v. Chapman, 33 N. Y. S. R. 349, 11 N. Y. Supp. 319, holding
receiver of railroad company cannot escape liability for injuries to onployeet

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owing to employment of insufficient number of trackmen to keep track in good
repair because of lack of funds in his hands.

Cited in note in 15 L.R.A. 262, on liability of receiver of railroad for personal
injuries or death caused by its operation.

36 .V3f. REP. 579, SPINETTI v. ATLAS S. S. CO. 80 N. Y. 71.
Theft of property on vessel by crew as barratry.

Cited in The Saratago, 20 Fed. 860, on theft committed by ship's employees as
being within exemption from loss by "thieves or robbers;" The Manitoba, 104
Fed. 145, holding unsuccessful attempt by crew at theft is not barratry.
Right of carrier to limit its liability.

Cited in Pearsall v. Western U. Teleg. Co. 124 N. Y. 256, 21 A. S. R. 662,
26 N. E. 534, on such right.

Cited in notes in 32 A. D. 497, on power of common carrier to limit his lia-
bility; 38 A. D. 425, on effect of particular stipulations in bill of lading;
42 L. ed. U. S. 689, on validity of contracts exempting carriers from liability for
their own negligence or that of their servants.

Disapproved in Liverpool & G. VV. Steam Co. v. Phoenix Ins. Co. 129 U. S. 397,
32 L. ed. 788, 9 Sup. Ct. Rep. 469, holding carrier by sea cannot, by stipulation
with shipper, exempt itself from all responsibility for loss or damage by perils
of the sea, arising from negligence of the officers or crew.



Power of national banks to act as gratuitous bailee of deposits.

Cited in Movius v. Lee, 30 Fed. 298, on the liberal rule of construction of th«
powers under national bank act; Ouderkirk v. Central Nat. Bank, 119 N. Y. 263,
23 N. E. 875; Ouderkirk v. Central Nat. Bank, 52 Hun, 1, 4 N. Y. Supp. 734,—
sustaining the power.

Liability of bank for loss of special deposit received by it as gratuitous

Cited in Merchants' Nat. Bank v. Guilmartin, 88 Ga. 797, 17 L.R.A. 322,
15 S. E. 831, on liability of bank for gross negligence of its cashier in respect
to the deposit.

Cited in notes in 38 A. S. R. 778, 780, 784, on liability of banks as bailees of
special deposits; 38 A. S. R. 786, on liability of bank when officer misappro-
priates special deposit; 32 L.R.A. 775, on care required of bank in keeping special
deposit; 3 E. R. C. 624, on liability of bank for loss of property received for
gratuitous safe keeping.
Liability of gratuitous bailee for loss of property.

Cited in Patriska v. Kronk, 57 Misc. 552, 109 N. Y. Supp. 1092, holding gratui-
tous bailee of money for its loss through his gross negligence.

Distinguished in McKillop v. Reich, 76 App. Div. 334, 78 N. Y. Supp. 485,
holding him liable for value of goods left with him which he failed to give up on
demands and gives no reason for such refusal.
Bank as bound by acts of its officers.

Cited in reference note in 53 A. D. 585, as to when bank is bound by acts of
ita officers.

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Liability of bailee for loss or nondeliTery of bailed property*

Cited in First Nat. Bank v. First Nat Bank, 116 Ala. 520, 22 So. 976,
on liability of bailee for failure to redeliver the property where he has not nsed
due care in respect to it; Ouderkirk v. Central Nat. Bank, 119 N. Y. 263, 23 N. E.
875, holding he must redeliver to owner upon request when purpose of the bail-
ment is satisfied.

Theft of bailees property with that of bailor aa evidence against negU*

Cited in Ouderkirk v. Central Nat Bank, 119 N. Y. 263, 23 N. E. 875, on such
circumstances as not conclusive evidence of bailee's exercise of due care; Pat-

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