Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

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COMMENTARIES ?<>



ON THE



LAW OF NEGLIGENCE



PUBLISHER'S STATEMENT



Volume five Thompson on Negligence is in the printer's hands. A large
portion of the manuscript is already in type, and work is progressing rapidly
and satisfactorily on the remainder. This volume will be issued from the
bindery within ninety days or less. *

Volume six manuscript is practically complete and will follow volume five
after a brief interval.

The entire work will now be completed and published without delay.



Indianapolis, October 20, 1904.



IN SIX VOLUMES
• VOLUME IV



INDIANAPOLIS
THE BOBBS-MERR1LL COMPANY ->

190+



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<*•>' £ t



COMMENTARIES ^°



ON THE



LAW OF NEGLIGENCE



IN ALL RELATIONS



[INCLUDING A COMPLETE REVISION OF THE AUTHOR'S
PREVIOUS WORKS ON THE SAME SUBJECT]



. . rBY



SEYMOUR D. THOMPSON, LL D.



IN SIX VOLUMES
* Volume IV



INDIANAPOLIS

THE BOBBS-MERRILL COMPANY

1904



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~r+-



J,*



COPYBIGHT 1004

By THE BOBBS-MERRILL COMPANY.
A*. Jf** 3, /***



THE HOLLENBECK PRESS
INDIANAPOLIS



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CONTENTS OF VOLUME FOUR-



TITLE EIGHTEEN.

MASTER AND SERVANT.

PART I. DUTIES AND LIABILITIES OP THE MASTER.
PART II. ASSUMPTION OP RISK BY THE SERVANT.
PART III. THE FELLOW-SERVANT DOCTRINE.
PART IV. . CONTRIBUTORY NEGLIGENCE OF THE SERV-
ANT (In Volume V).



PART I.

DUTIES AND LIABILITIES OF THE MASTER.

Chapter

CVI. When the Relation of Master and Servant

Exists, • . §§ 3721-3757.

Art. I. ■ General and Miscellaneous, . . §§ 3721-3744.

Art. II. Servants Acting Outside the

• Scope of their Duties, ....§§ 3748-3757.
CVII. General Principles Relating to the Duties

and Liabilities of the Employer, . . §§ 3758-3871.
Art. I. General Doctrines and Illustra- ,

tions, §§ 3758-3765.

Art. II. Degree of Care Required of the

Employer, §§ 3767-3778.

Art. III. Duty of Inspecting and Finding

Out, §§ 3781-3803c.

Art. IV. Injuries to Servants through

Faults of Operation, ....§§ 3804-3812.
Art. V. Ordering Servant into Danger, . §§ 3814-3819.

Art. VI. Injuries to Minor Servants, . . §§ 3821-3833.

(iii)



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iv CONTENTS OF VOLUME FOUR.

Chapter

Art. VII. Duty and Liability of Employer
with Respect to- Food, Shelter,
and Medical and Surgical At-
tendance of Servants, . . . §§ 3836-3845.

Art. VIII. Contracts and Rules, as Affecting

Employer's Liability, ....§§ 3848-3854.

Art. IX. Doctrine of Proximate and Re-
mote Cause as Applied to In-
juries to, Servants, ....§§ 3856-3862.

Art. X. Presumptions and Burden of

Proof in Actions Grounded on
Injuries to Servants, ....§§ 3864-3866.

Art. XI. Miscellaneous Questions Relating

to Employer's Liability, . . §§ 3868-3871.
CVIII. Duty of Employer to Provide his Servants

with a Safe Place in which to Work, . §§ 3873-3983.

Art. I. General Principles and Illustra-
tions, §§ 3873-3880.

Art. II. Liability for Injuries from Fall-
ing Objects, §§ 3882-3886.

Art. III. Man-Traps, Trap-Doors, Unlight-
ed Premises, Passageways, Hid-
den Dangers, §§ 3888-3892.

Art. IV. Elevators in Buildings, . . . §§ 3894-3909.

Art. V. Excavations, Ditches, Construc-

tion of Sewers, etc., ....§§ 3912-3917.

Art. VI. Explosions, '. §§ 3919-3936.

Art. VII. Liability for Injuries to Servants
Caused by Fires Other than
Railway Fires, §§ 3939-3945.

Art. VIII. Liability for Unsafe Scaffoldings,

Stagings, Ladders, etc., . . . §§ 3947-3963.

Art. IX. Various Grounds of Liability,

Alphabetically Arranged, . . §§ 3966-3983.
CIX. Duty of Employer to Provide his Servants
with Safe Machinery, Tools, and Appli-
ances, §§ 3986-4013.

Art. I. General Doctrines and Appli-
cations, §§ 3986-4013.

Art. II. Unguarded or Unfenced Ma-
chinery, §§ 4017-4024.

Art. III. Derricks, Lifting-Cranes, etc., and

their Operation, §§ 4026-4034.



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CONTENTS OP VOLUME FOUR.



Chapter
Art.
Art.



CX.
CXI.



Art.
Art.



Art.
Art.
Art.

Art.
CXII.



Art.
Art.



Art.

Art.

CXIII.

CXIV.

CXV.

CXVI.



IV. Electrical Appliances, ....§§ 4036-4039.

V. Applications of the Doctrine to

Various Kinds of Machinery,

Appliances, etc., §§ 4041-4046.

Duty of Employer to Provide Competent,

Sober, and Fit Fellow Servants, . . §§ 4048-4053.
Duty of Employer to Warn and Instruct
his Servants, §§ 4055-4133.

I. General Nature of this Duty, . . §§ 4135-4149.

II. Duty to Warn and Instruct Chil-

dren and Incompetent or Inex-
perienced Persons, §§ 4091-4103.

III. Nature and Sufficiency of the

Warning or Instruction, . . §§ 4106-4107.

IV. Duty to Warn and Instruct in

Railway Service, §§ 4109-4112.

V. Duty to Warn and Instruct in

Other Lines than Railway

Service, §§ 4114-4126.

VI. Various Illustrations of the Duty

to Warn and Instruct, . . . §§ 4129-4133.
Duly of Employer to Make and Publish
Rules and Regulations to Promote the
Safety of his Employes, §§ 4135-4173.

I. General Nature of this Duty, . . §§^4135-4149

II. Propriety, Sufficiency, and Rea-

sonableness of such Rules and

Regulations, §§ 4152-4157.

III. Promulgation, Notice, and En-

forcement of such Rules and

Regulations, §§ 4159-4167.

IV. Duty of Establishing and En-

forcing Rules in Particular

Lines of Service, §§ 4169-4173.

Duty of Employer So to Systematize and
Conduct his Business as to Promote the
Safety of his Servants, §§ 4175-4177.

Liability of Mine-Owners for Injuries to
Miners and Other Employes, ....§§ 4179-4215.

Liability of Shipowners to their Seamen
and Other Employes, §§ 4220-4239.

Liability of Railway Companies for Neg-
ligent Injuries to their Employes, . . §§ 4243-4555. .



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vi contents of volume four.

Chapter

Art. I. General Principles, §§ 4243-4251.

Art. II. Injuries to Railway Employes

from Defective Tracks, . . . §§ 4253-4276.

Art. III. Injuries to Railway Employes
from Objects Too Near the

Track, §§ 4280-4305.

Surdiv. I. In General, §§ 4280-4284.

Subdiv. II. An Alphabetical Catalogue of
Such Objects — Company Liable or Not
Liable §§ 4286-4305.

Art. IV. Injuries to Railway Employ6s
from Defective or Unsafe
Bridges, §§ 4309-4317.

Art. V. Injuries to Railway Employ6s
from Failing to Maintain Safe
and Sufficient Fences and Cat-
tle-Guards, §§ 4319-4323.

Art. VI. Injuries to Railway Employes
from Defects in Railway-Yards,
Switches, Frogs, and Other
Switching-Appliances, . . . §§ 4325-4343.

Art. VII. Injuries to Railway Employes
from Defects in Locomotive-En-
gines and their Appliances, . . §§ 4346-4357.

Art. VIII. Injuries to Railway Employes
from Defects in Cars, Other
than "Foreign" Cars, ....§§ 4360-4370.

Art. IX. Injuries to Railway Employes

from Defects in "Foreign" Cars, §§ 4373-4390.

Art. X. Injuries to Railway Employes

from Defective Brakes, Brake-
Beams, Chains, etc., ....§§ 4393-4403.

Art. XI. Injuries to Car-Couplers from
Defects in the Coupling-Appli-
ances, §§ 4406-4422.

Art. XII. Injuries to Car-Couplers from
Defects in the Road-bed or
Coupling-Grounds, §§ 4425-4427.

Art. XIII. Injuries to Car-Couplers from the
Mode of Operation in Making
such Couplings or Uncouplings, §§ 4429-4442.

Art. XIV. Injuries to Railway Employes

from Defective Hand-Cars, . §§ 4445-4448.



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CONTENTS OF VOLUME FOUR. Vll

Chapter

Art. XV. Various Injuries to Railway Em-
ployes in Operating Engines

and Cars, §§ 4450-4541.

Subdiv. I. Moving of Trains, §§ 4450-4483.

Subdiv. II. Lights, Flagmen, and Signals, §§ 4488-4505.

Subdiv. III. Speed, §§ 4508-4510.

Subdiv. IV. Collisions, §§ 4512-4516.

Subdiv. V. Injuries in and about ^Railway-

Yards and Switches §§ 4518-4530.

Subdiv. VI. Injuries Connected with the
Loading and Unloading of Cars, ... §§ 4533-4541.

Art. XVI. Various Unclassified Injuries to

EiflploySs in Railway Operation, §§ 4543-4551.
Art. XVII. Injuries to Employes of Street-
Railway and Elevated-Railway

Companies, §§ 4553-4555.

CXVII. Decisions under Special Statutes, . . . §§ 4557-4606.
Art. I. Under Employers' Liability Acts, §§ 4557-4572.

Art. II. Under Workmen's Compensation

Acts, §§ 4575-4587.

Art. III. Under Various Factory Acts, . §§ 4590-4597.-
Art. IV. Under Statutes Regulating the

Employment of Children, . . §§ 4599-4601.
Art. V. Under Various Other Statutes, . §§ 4603-4606.



CHAPTER CVI.

WHEN THE RELATION OB MASTER AND SERVANT EXISTS.

Art. I. General and Miscellaneous, §§ 3721-3744.
Art. II. Servants Acting Outside the Scope of their Duties,
§§ 3748-3757.



Article I. General and Miscellaneous.
Section

3721. When the relation of master and servant exists.

3722. When a question for the jury.

3723. General servant of one employer and special servant of another.

3724. Railroad company hiring its appliances and servants to another.

3725. Employer lending or hiring his servants to another.

3726. Receiver of a railroad.

3727. Receiver operating railroad as lessee. '

3728. Children working by the piece in a coal mine.



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Vlil CONTENTS OF VOLUME FOUR.

Section %

3729. Servant of one railroad company sent over the track of another

company.

3730. Joint operation by two or more railroad companies."

3731. Joint operation by other employers.

3732. Members of a partnership firm.

3733. Status of employe of a partnership which is reorganized into a

corporation.

3734. Status of employe 1 who is a stockholder in the employing corpo-

ration.

3735. Servant of one company injured in consequence of defective track

of another company.

3736. When employer liable for injuries to servants of independent

contractor.

3737. Injuries to one's servants by contractors* or their servants.

3738. When employer liable for injuries to his servant by negligence

of independent contractor.

3739. Servants of different masters not fellow servants.

3740. Janltress of building and its owner.

3741. Employ^ and officers of employing corporation.

3742. Railroad company and baggageman or express-messengers.

3743. Who is an employe within the meaning of a statute.

3744. Manufacturer and hired prisoners.



Article II. Servants Acting Outside the Scope of their

Duties — Volunteers — Intermeddlers.
Section

3748. Master not liable for injury to servant when acting outside the

scope of his employment.

3749. Further of injuries to servants acting outside the line of their

duty.

3750. Injuries to servants before commencing or after quitting work,

outside of working-hours.

3751. Injuries to servants going to their place of employment and re-

turning therefrom.

3752. Injuries to servants during temporary cessations of their em-

ployment.

3753. Instances of such injuries where the master was held liable.

3754. Master voluntarily assuming duties of servant, liable for negli-

gently performing such duty.

3755. Failure of employer to restrain volunteers and intermeddlers.

3756. Injuries to mere volunteers and intermeddlers.

3757. When master not chargeable with acts of strangers or intermed-

dlers.



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CONTENTS OF VOLUME FOUR. IX



CHAPTEB CVII..

GENERAL PRINCIPLES RELATING TO THE DUTIES AND LIABILITIES OF

THE EMPLOYER.

Art. I. General Doctrines and Illustrations, §§ 3758-3765.

Art. II. Degree of Care Required of the Employer, §§ 3767-3778.

Art. III. Duty of Inspecting and Finding Out, §§ 3781-3803c.
Art. IV. Injuries to Servants through Faults of Operation,

§§ 3804-3812.
Art. V. Ordering Servant into Danger, §§ 3814-3819.

Art. VI. Injuries to Minor Servants, §§ 3821-3833.
Art. VII. Duty and Liability of Employer with Respect to Food,

Shelter, and Medical and Surgical Attendance of

Servants, §§ 3836-3845.
Art. VIII. Contracts and Rules, as Affecting Employer's Liability,

§§ 3848-3854.
Art. IX. Doctrine of Proximate and Remote Cause as Applied to

Injuries to Servants, §§ 3856-3862.
Art. X. Presumptions and Burden of Proof in Actions Grounded

on Injuries to Servants, §§ 3864-3866.
Art. XI. Miscellaneous Questions Relating to Employers' Lia-
bility, §§ 3868-3871.

Article I. General Doctrines and Illustrations.

Section

3758. A comprehensive statement of the duties of the master.

3759. General statement of master's liability.

3760. Suitable place, machinery, appliances, servants, furnished by mas-

ter, and details of the work and selection and use of materials
committed to servant.

3761. Some applications of the foregoing principle.

3762. Cases denying or failing to apply this principle.

3763. What instructions on this subject are proper and what Improper.

3764. Personal negligence of the master.

3765. When servant may rightfully assume that master has done his

duty in this respect.



Article II. Degree of Care Required op the Employer.

Section

3767. Master not liable as an insurer, but bound only to the exercise of
ordinary or reasonable care.



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X CONTENTS OF VOLUME FOUR.

Section •

3768. Rule of reasonable care applied to the safety of machinery, appli-

ances, etc.— "Reasonably safe for the purpose intended."

3769. Rule of ordinary care applied to the safety of machinery, etc.—

Not negligence to act In accordance with ordinary usage.

3770. Explanations of this doctrine.

3771. Further explanations.

3772. This care varies according to the danger to be avoided.

3773. Master not bound to exercise a high and exhaustive degree of care.

3774. Not liable for accidents not reasonably to be anticipated.

3775. Rule excludes liability for injuries proceeding from the act of

God, or from Inevitable or Inscrutable accident.

3776. Application of this rule of reasonable care In the case of railway

service.

3777. Custom, adoption of, how far excuses master.

3778. Doctrine of this chapter restated.



Article III. Duty of Inspecting and Finding Out.

i

Section

3781. Obligation of master to keep machinery, etc., In safe repair.

3782. Effect of knowledge or notice, or want of knowledge or notice, on

the part of the master, of the danger or defect.

3783. Degree of care, skill and diligence required in performing this

duty of inspection.

3784. Duty to apply what tests In making inspections.

3785. Master not liable for hidden defects not discoverable by the exer-

cise of ordinary care.

3786. Master under a continuing duty of Inspection.

3787. Duty to Inspect after hearing noises which indicate danger.

3788. Duty to inspect after making repairs.

3789. Master liable for improper inspection although there has been au

official inspection.

3790. Duty of inspection extends to supervision of conduct of fellow

servants.

3791. This duty of inspection an absolute and unalienable duty.

3792. Master cannot absolve himself from this duty by a rule devolving

It upon his servants generally.

3793. Nor by employing competent Inspectors, unless their inspection

was competent.

3794. Master chargeable with knowledge of what a reasonable inspec-

tion would disclose.

3795. Effect of want of such knowledge on the part of the master.

3796. Notice or knowledge that the appliance has got out of repair.

3797. What will be notice to the master of such a defect.

3798. Constructive notice of the defect from lapse of time.

3799. Circumstances under which knowledge of one defect will impute

knowledge of another defect.

3800. Manner of proving such notice or knowledge on the part of the

master.



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CONTENTS OF VOLUME FOUR. XI

Section

3801. Correlative duty of master and servant with respect to knowing

and finding out.

3802. Circumstances under which master exonerated from liability for

failure to make inspections.

3803. Burden of proof in actions predicated upon failure to make proper

Inspections.

3803a. Evidentiary effect of long use without accident.

3803b. Evidence tending to show an insufficient Inspection.

3803c. Other evidence speaking upon the question of the adequacy of in-
spection.



Article IV. Injuries to Servants through Faults of Oper-
ation.
Section

3804. Preliminary.

3805. Duty of master as to control and supervision of his own business.

3806. Duty of master to correct habitual abuse or non-use of appliances.

3807. Failure of master to furnish adequate help.

3808. Master adopting unusual or unsafe methods of work.

3809. Negligence of master or his representative in giving orders.

3810. Negligence of a foreman of work In handling a pile-driver.

3811. Operation of blast-furnaces.

3812. Oiling, cleaning, or repairing machinery while in motion.



"Article V. Ordering Servant into Danger.
Section

3814. Ordering servant into more dangerous place — Exposing him to

risks not within the contract of service.

3815. Injuries in consequence of obeying orders of superior.

3816. Ordering a servant to violate an injunction or commit a trespass.

3817. Subjecting servant to .hostile attack by servants of another com-

pany.

3818. Liability of master for ordering minor employe* into a more dan-

gerous employment.

3819. Instances of this liability.



Article VI. Injuries to Minor Servants.
Section

3821. Preliminary.

3822. Grounds of recovery generally for Injuries to minor servants.

3823. Liability where the minor is employed without consent of parents

or guardian.

3824. Children employed without authority of master.

3825. Status of minor servants who procure employment by falsely

representing themselves to be of age.



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Xll CONTENTS OF VOLUME FOUR.

Section

3826. Liability for employing minors who are too young and inexperi-

enced.

3827. Status of children employed in violation of statute.

3828. Minor engaging temporarily in service.

3829. Duty to protect child-servant from dangers.

3830. Duty to guard dangerous machinery with which child-servant is

liable to come in contact.
3831.' Care required in protecting minor employes in other respects.

3832. When the minor employs is deemed to assume the risks of the

employment.

3833. Failure of master to conform to other statutory requirements.



Article VII. Duty and Liability of Employer with Respect
to Food, Shelter, and Medical and Surgical
Attendance of Servants.
Section

3836. Duty to provide food and shelter for servants.

3837. Power of incorporated employers to employ surgeons, nurses, etc.,

for their wounded employes.

3838. No duty of master to furnish medical or surgical attendance to

sick or wounded servants.

3839. Agents of master have no implied authority to employ physicians,

surgeons, or nurses.

3840. Such authority implied In cases of emergency demanding immedi-

ate relief.

3841. Master not liable for negligence or malpractice of physician or

surgeon.

3842. When employer liable for negligence or malpractice of physician

or surgeon: liable for negligence in selecting incompetent or
unfit physician or surgeon.

3843. Duty of employer where he undertakes by contract to furnish

medical- and surgical attendance.

3844. Choice of physician or surgeon by wounded servant relieves mas-

ter of responsibility.

3845. No liability for failing to deliver to widow the amputated por-

tions of her husband's limbs.



Article VIII. Contracts and Rules, as Affecting Employer's

Liability.
Section

3848. Contracts between railroad companies and their employe's by

which the employs assumes the burden of inspection and exam-
ination.

3849. Printed rules and notices Imposing risks upon employes.

3850. Contract with servant exempting master from liability for his

own negligence.

3851. Statutes making such contracts null and void.



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CONTENTS OF VOLUME FOUR. Xlll

Section

3852. Contracts with third parties do not affect master's liability to his

servant

3853. Contracts between railroad companies and their employes by

which employes agree to release damages in consideration of
participation in sick, accident, or death benefits, relief-funds, etc.

3854. Contracts releasing damages, made after the injury.



Article IX. Doctrine of Proximate and Remote Cause as

Applied to Injuries to Servants.
Section

3856. Questions of proximate and remote cause in actions by servants

against their masters for injuries.

3857. Rule where the injury is the result of the concurrence of several

causes.

3858. Rule where negligence of master concurs with negligence of fel-

low servant.

3859. Rule where negligence of master concurs with negligence of third

person.

3860. Circumstances under which the question whether the negligence

of the master was the proximate cause of the Injury, is a ques-
tion for the jury.

3861. Illustrative cases where the negligence of the master was the

proximate cause of the Injury, or presented a question for the
jury.

3862. Illustrative cases where the negligence of the master was not the

proximate cause of the injury.



Article X. Presumptions and Burden of Proof in Actions
Grounded on Injuries to Servants.

Section

3864. General presumption in favor of master.

3865. What the servant must prove to overcome this presumption.

3866. Further of presumptions and burden of proof.



Article XI. Miscellaneous Questions Relating to Employ-
ers' Liability.
Section

3868. Conflict of laws — Law of place governs.

3869. What law applies in case of Interstate railroads.



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