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Commentaries on the law of negligence in all relations online

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contrary, and the master has no knowledge of the contrary nor any
reason to believe that the representation is untrue, the master will not
be blameworthy for acting upon such representation, and for treating
the servant as being of full age, or competent to the extent represented
by him. 28 Plainly, if a man applies for employment in a given serv-
ice, he thereby impliedly represents that he is qualified to perform
that service unless he notifies the employer of the contrary. 24

a A father who suffers his child
of tender years to engage, or to con-
tinue, In a dangerous service, Is
held to assume all the risks ordina-
rily incident thereto, including the
risk of the Indiscretion and 'rash-
ness of the child due to his tender
years, and cannot recover from the
master for the loss of his services,
if he is killed in consequence of go-
ing, without direction or command,
to a dangerous place to comply with
a proper order, where there is a
perfectly safe place: McGool v. Lu-
cas Coal Co. (Pa.), 24 Atl. Rep. 350
(no off. rep.). A father who con-
sents to the employment of his
minor son in a dangerous service
cannot recover in an action under
the statutes of Texas for the death
of his son, resulting from his inex-
perience and the failure of the em-
ployer to instruct him against the
dangers incident to the employ-
ment: Missouri* 6c. R. Co. v. Evans,
16 Tex. Civ. App. 68; s. c. 41 S. W.
Rep. 80.

"Lake Shore Ac. R. Co. v. Bald-
win, 19 Ohio C. C. 338; s. c. 10 Ohio
C. D. 333. To the contrary, see Chi-
cago ftc. R. Co. v. Pettlgrew, 82 111.
App. 33 (holding that the fact that
a minor employs obtained employ-
ment by using deception and fraud
as to his age will not prevent a re-
covery for injuries sustained by the
negligence of the master). In this
case the defendant urged the false
statement of plaintiff as to his age
as a ground for denying a recovery.
The court say: "We are unwilling

VOL. 4 THOMP. NBG. — 46

to apply such a doctrine to the facta
qf the case. If It be true that ap-
pellee, by meanB of deception and
fraud, entered the service of appel-
lant, that would be no excuse for
negligence on its part, if such neg-
ligence resulted in injury to appel-
lee." Whether defendant was negli-
gent in failing to warn and instruct
plaintiff as to the dangers incident
to the use of the machine was held
to be a question for the jury, un-
der the circumstances: Chicago ftc.
R. Co. v. Pettlgrew, supra.

u But it has been held that an em-
ploye" in a sawmill who applies to
be retained as an oiler some time
after he has been employed in that
capacity, does not thereby implied-
ly represent himself as competent
for the position so as to take upon
himself an assumption of all its
risks, where his request to be re-
tained has no influence on the action
of his employer: Guinard v. Knapp,
Stout ft Co. Company, 90 W1b. 123;
s. c. 62 N. W. Rep. 625. A person
applied for work In the boiler-
makers' department of a railroad
repair-shop, stating that he "had
had experience in that kind of
work." Thereupon he was em-
ployed, but only as a helper. The
statement as to his experience did
not, in the opinion of the court,
justify the foreman in requiring
him to do work which, in order to
proceed with safety, demanded the
skill and knowledge of an experi-
enced boiler-maker, without giving
him suitable instruction, — the con-


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4 Thomp. Neg.] assumption of risk by the servant.

§4694. Risks Assumed by Inexperienced Servants who are Hot
Minors. — Recurring now to the duty of the master to warn and in-
struct his inexperienced servants concerning dangers which are known
to him, but which are not known or apparent to them, or discoverable
by them with that reasonable care which, under the circumstances,
they ought to take for their own safety, we may conclude that a serv-
ant cannot be held to have assumed a risk of the employment the
danger from which, owing to his inexperience, which is known to the
master, he is incapable of understanding and appreciating, and as to
which he is given no warning or instruction. 25

Article VI. Risk of Dangers in Premises or Place op



4697. Duty of master to keep his

premises clear of dangerous
holes, pitfalls, etc.

4698. When servant does assume

risks of known defects in
premises, place of working,

4699. When servant does not as-

sume risk of dangerous
holes, pitfallB, etc., in mas-
ter's premises.

4700. When employe^ does assume

risk of holes, pits, etc.


4701. Risk of injuries from noxious

4702. Risk of injury in consequence

of the absence of flre-es-
* cape.

4703. Risk of injuries from explo-


4704. Assumes risks of exposed ma-


4705. Risks assumed in the work of

making a dangerous place

§ 4697. Duty of Master to Keep his Premises Clear of Dangerous
Holes, Pitfalls, etc. — This duty is considered in a former Subdivision ; l
but it may be said here, by way of preface to what follows, that the
master is bound, in favor of his servant, to exercise reasonable care to
the end of keeping his premises clear of dangerous holes, pitfalls, etc.,
which may not be obvious to his servant, or known to him from his
experience; and that the servant may, in the absence of reasonable
ground to believe that this duty has not been performed, assume that

cluBion being that he did not, as
matter of law, assume the* risk of
doing Buch work: Felton v. Girardy,
43 C. C. A. 439; s. c. 104 Fed. Rep.

"Western U. Tel. Co. v. Burgess,
108 Fed. Rep. 26; s. c. 47 C. C. A.
168; Campbell v. Eveleth, 83 Me.
50; s. c. 21 Atl. Rep. 784; Strabler
v. Toledo Bridge Co., 11 Ohio C. D.


87 (servant not chargeable with
negligence unless the defect and
danger by reason of which he is in-
jured is obvious, or he has been ad-
vised of the failure of the master
to perform his duty, or of such facts
as would cause a reasonably pru-
dent man to investigate).
1 Ante, § 3888, et seq.

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it has been, and act upon the assumption, without incurring the im-
putation of having accepted the risk, or of having been guilty of con-
tributory negligence. Where the master is a railroad company, the
mere fact that a hole in its railroad-track, into which a brakeman
steps to his injury, is concealed from sight by slush, will not excuse
the company from liability to the brakeman, since it is the duty of
•the company to maintain such an inspection of its track as will dis-
cover such dangers, although the track may be covered with slush. 2
On the other hand, the master is not required, in keeping his premises
clear of pits, holes, etc., to do unreasonable or impracticable things.
For example, a railroad company will not be required to erect bar-
riers in its round-house to protect its employes from pits which are
necessarily made therein,, where such barriers would render it im-
possible to do the necessary work to the engines, brought there for
repairs, which is intended to be done when pits are used. 8

§4698. When Servant Does Assume Risks of Known Defects in
Premises, Place of Working, etc. — On the same principle, an em-
ploy6 assumes risks of dangers proceeding from known or obvious
defects in the buildings, premises, or place where he is required to
work. 4

§ 4699. When Servant Does Not Assume Bisk of Dangerous Holes,
Pitfalls, etc., in Master's Premises. — With the foregoing statement
for a premise, we may advance to the conclusion that the servant does
not necessarily assume the risk of dangerous holes, pits, pitfalls, man-
traps, etc., in the premises of his master, of the existence of which
he has no knowledge, and the existence of which he has no good reason
to expect; but that, in the absence of such knowledge or reasonable
ground of suspicion, he may justly assume that his master has done
his duty in keeping his premises clear of such dangers, and may act
upon the assumption, without incurring the imputation of having
accepted the risk of the danger, or of having been guilty of contribu-

* Northern Pac. R. Co. v. Teeter, For example, an employ^ who

63 Fed. Rep. 527; s. c. 11 C. C. A. works near a long and irregular

332. stairway without a railing, which

'McDonnell v. Illinois &c. R. Co., he is called upon to go up and

105 Iowfe 459; s. c. 11 Am. ft Eng. down, and which is intended for

R. Cas. (N. S.) 534; 75 N. W. Rep. employes, is chargeable with knowl-

336. edge of the obvious defects in the

4 Consolidated Coal Co. v. Bonner, stairway, and cannot recover of his

43 111. App. 17; Lindvall v. Woods, employer for damage to himself by

44 Fed. Rep. 855 (servant assumes reason of such defects: Sweet v.
risk of unsafe structure if he could Ohio Coal Co., 78 Wis. 127; s. c. 47
have discovered defect by the exer- N. W. Rep. 182.

cise of ordinary care and caution).


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4 Thomp. Neg.] assumption op risk by the servant.

tory negligence. 5 Upon the same ground, an inexperienced employ^,
set at work with a pick to undermine a high embankment of earth,
was held not, as matter of law, to have assumed the risk attendant
upon the temporary absence of the superintendent, from the mere
fact of continuing in the work, although he knew of the absence of
the superintendent, and knew that the superintendent was no longer
watching the bank ; since he had the right to assume, and to act upon '
the assumption, that the superintendent would return to his post of
duty in time to warn him of the danger of the falling of the bank. 6

§ 4700. When Employe Does Assume Risk of Holes, Pits, etc. —
But in by far the greater number of cases, the employ^ is held to
have assumed the risk of dangerous holes, pits, pitfalls, etc., upon his
employer's premises, into which the employ^ falls to his injury. We
may comjnence with the case of an experienced employ^ of full age,
who is neither hurried, coerced, deceived nor surprised, but who vol-
untarily works near an uncovered pit by candle-light, in which case he
assumes the risk of falling into it. 7 So, if an employ^ knows of an
opening in the floor of the building in which he is employed, but
nevertheless falls into it as the result of his own inattention, he can-
not make his own negligence the ground of recovering damages from
his employer. 8 And generally, employes have been held to assume
the risks Tinder the following circumstances : — Where a railway em-
ploye knew of the existence of pits in a round-house, but nevertheless
walked into one of them at night, while going to the place assigned
to him for his ^;ork ; 9 where a subcontractor of a carpenter remained
at his work until it was so dark that he could not see objects in the
passage through which it was necessary for him to go upon leaving
his work, but nevertheless went forward and fell through an opening,
— the cause of his injury being, in the opinion of the court, an ordi-
nary risk of the business ; 10 where an employ^ of a cordage company,

•Eastland v. Clarke, 165 N. Y. receive waste steam and water

420; s. c. 59 N. E. Rep. 202; rev'g from the engine in a factory, the

s. c. 51 N. T. Supp. 1140 (servant servant never having worked there

employed to carry firewood into a before, — see Johnson v. Tacoma

cellar, — right to believe that it was Mills Co., 22 Wash. 88; s. c. 60 Pac.

reasonably safe). Rep. 53.

Lynch v. Allen, 160 Mass. 248; T McAleenan v. Myrick, 68 111.

s. c. 35 N. E. Rep. 550. When App. 225.

servant does not assume the risk of 'Clark v. Murton, 63 111. App. 49;

danger from leaving a hatchway s. c. 1 Chic. L. J. Wkly. 117.

open for a short time, while a •McDonnell v. Illinois &c. R. Co.,

workman oils the machinery below, 105 Iowa 459; s. c. 11 Am. & Eng.

—see Pullman Palace Car Co. v. R. Cas. (N. S.) 534; 75 N. W. Rep.

Connell, 74 111. App. 447. Circum- 336.

stances under which servant does "Murphy v. Greeley, 146 Mass-
not assume the risk of crawling 196; s. c. 5 New Eng. Rep. 751; 15
into a barrel of hot water, used to N. E. Rep. 654.


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working in the basement of its factory, slipped and fell into an open
well containing scalding water formed by the condensation of steam,
while he was getting washers out of a barrel near by, which were to
his knowledge frequently placed near the well, — the danger being
obvious to him; 11 where an employ6 went to work in a cellar, knowing
the condition of an elevator-shaft, and that there were no barriers
between it and an alley, and that men in the alley were receiving from
the elevator, boxes which he and others were loading on the elevator
in the cellar, and hoisting to the first floor, and a plank slipped and
fell upon him; 12 where an employ6 entered upon an employment in a
tunnel, where he was required to walk backwards in dragging hides
from vats to a wash-wheel, on a slippery floor, across 1 a space about
sixteen inches wide, along the edge of a vat, — with the conclusion that
he assumed the risk of falling into the vat, and that there could be no
recovery for his death based upon negligence on the part of his em-
ployer, in failing to remove a box beside the passageway, and to give
a wider space ; 18 and in the other cases cited in the marginal note. 14

§ 4701. Bisk of Injuries from Norton* Gases. — Whether a servant
assumes the risk of injuries from noxious gases, fumes, etc., depends
upon the principles already considered, 15 though some differences
may arise in their applications, growing out of the subtile nature of
such agencies. If the dangers from this source are obvious
and apparent, 16 and as well known to the servant as to the

"Feeley v. Pearson Cordage Co., ered hole, leading down to a coal-

161 Mass. 426; s. c. 37 N. E. Rep. bunker, at night, and without suffl-

368. cient light: Boyle v. Degnon-Mc-

"Alford v. Metcalf, 74 Mich. 369; Lean Const. Co., 61 N. Y. Supp.

s. c. 42 N. W. Rep. 52. 1043; s. c, appeal denied, 63 N. Y.

"Balle v. Detroit Leather Co., 73 Supp. 1105. So, the question

Mich. 158; s. c. 41 N. W. Rep. 216. whether or not a hole in the plank-

"Holloran v. Union Iron Ac. Co., ing between the railB over a street-

133 Mo. 470; s. c. 36 S. W. Rep. crossing was so obvious that an em*

260; Qarety v. King, 9 App. Div. ploye* ought to have known of it,

(N. Y.) 443; s. c. 41 N. Y. Supp. go as to make his continuance in

633; 75 N. Y. St. Rep. 1030; Pres- the employment an assumption of

ton v. Ocean S. S. Co., 33 App. Div. the risk, has been held a question

(N. Y.) 193; s. c. 53 N. Y. Supp. for a jury, where the, evidence was

444; Schwartz v. Cornell, 36 N. Y. conflicting as to the Bize of the hole,

St. Rep. 646; s. c. 13 N. Y. Supp. as to whether there were others

355; 59 Hun (N. Y.) 623 (mem.); like it in the yard, and aB to the

Rick v. Cramp (Pa.) f 12 Atl. Rep. cause of it: Monsarrat v. Keegan,

495 (no off. rep.). In a few cases, 87 Fed. Rep. 849; s. c. 40 Ohio L.

the question whether the servant J. 167; 58 U. S. Apt). 377; 11 Am.

assumed the riBk of working near 6 Eng. R. Cas. (N. S.) 507; 31 C.

an uncovered hole, pit, or the like, C. A. 255.

has been held to be a question for "Ante, § 4640, et seq.

a jury, — as where an employe" con- M Meany v. Standard Oil Co. (N.

sented to work in plain sight of and J.), 47 Atl. Rep. 803 (no off. rep.)

within seven feet from an uncov- (proprietor of a still-house having


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4 Thomp. Neg.] assumption of risk by the sebvant.

master; 17 or if either has a knowledge of them, or a mpans of knowl-
edge arising from the circumstances of his situation, and from his
opportunity of observing the precautions adopted by other employes, —
then the servant assumes the risk of injury from them. 18 On the other
hand, under principles already considered, 19 the risk of injury pro-
ceeding from such agencies is not assumed by a common laborer who
is employed in the mere drudgery of the work, especially where he is
assured by the superintendent of the establishment that the poisonous
fumes are not injurious.*

§4702. Risk of Injury in Consequence of the Absence of Fire-
Escapes. — It was held in one cold and brutal decision, that if a man-
ufacturing company has a mill properly constructed for its ordinary
business, it is not, in the absence of a statutory requirement, responsi-
ble to an employ^ for not providing or maintaining in safe condition
a means of escape from a fire, where the fire is not caused by the neg-
ligence of the company. 21 If the foregoing decision expresses the

no defect in the apparatus used to
keep it free from noxious gases, not
liable to a servant employed there-
in for injuries resulting from the
presence of such gases).

"Hauk v. Standard Oil Co., 38
App. Div. (N. Y.) 621; s. c. 56 N.
Y. Supp. 273.

39 Berry tl Atlantic White-Lead
Co., 30 App. Div. (N. Y.) 205; s.
c. 51 N. Y. Supp. 602 (injury from
fumes of white-lead). Or if, having
been injured from an explosion of
gases, he has worked for a long
time in the establishment, and has
always opened the tank in the same
manner as the manner in which he
opened it when the explosion took
place, it being caused by a failure
to shut off the steam at the proper
time: Benfleld v. Vacuum Oil Co., 75
Hun (N. Y.) 209; s. c. 27 N. Y.
Supp. 16; 58 N. J. St Rep. 663.
Much to the same effect, see State
,▼. Lazaretto Guano Co., 90 Md. 177;
s. c. 44 Atl. Rep. 1017, where the
servant died from the effects of in-
haling poisonous gases while repair-
ing a leak in a sulphuric-acid tank,
having when his turn came made
preparations for protecting himself

from the acids and gases.

Circumstances under which a pilot
on a steamship, who went to sleep
in a small room, heated by a stove,
having no connection with the outer


air, assumed the risk of asphyxia-
tion from gas emanating from the
stove: Murch v. Wilson, 168 Mass,
408; s. c. 47 N. B. Rep. 111. Owner
of a blast furnace not liable to an
employe 1 for an Injury arising from
his inhalation of gas not sufficient
in quantity to affect an ordinary
man, because his lungs were over-
sensitive and weak from a previ-
ous illness: Parlin 6c. Co. v. Fin-
frouck, 65 111. App. 174. Circum-
stances under which carpenter
twice driven from a room by the
fumes of ammonia, entering the
room to try it again under orders of
the superintendent, assumed the
riBk of being injured by a blast of
ammonia: Beittenmiller v. Berg-
ner &c. Brewing Co. (Pa.), 12 Atl.
Rep. 599 (no off. rep.).

"Ante, i 4640, etseq.

"Wagner v. Jayne Chemical Co., %
147 Pa. St. 475; s. c. 1 Pa. Adv. Rep.
368; 23 Atl. Rep. 772; 11 Rail, ft
Corp. L. J. 212; ante, § 4664.

* JoneB v. Granite Mills, 126 Mass.
84. In this case it appeared that
the plaintiff and other employes
worked on the upper floor of a six-
story factory building. There was
no fire-escape above the fifth floor,
nor any exit from the sixth floor
except by a winding stairway in a
tower at the corner of the building.
The fire occurred through the over-

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[2d Ed.

doctrine of the common law, then the servant necessarily assumes the
risk of being burned to death through the negligence of the master in
failing to provide suitable fire-escapes or to keep his apparatus for
extinguishing fire in proper order. If the master is not bound, under
the principles of the common law, to afford his servants suitable means
of egress from the building by means of fire-escapes in case of a fire
breaking out therein, the servant necessarily assumes the risk of the
situation, however dangerous it may be. 22 But all courts have not
bowed to this doctrine, or at least have not applied it .under all circum-
stances. One court has held that a boy of nineteen, employed in an
upper story of a factory, the means of escape from which are insuffi-
cient in case of fire, is not presumed, as matter of law, to have assumed
the risk, but that whether he has done so is a question of fact. 28 A

heating of a spindle of a spinning-
mule. The fire-apparatus was out
of order. Ignoring the obvious con-
clusion that it was a primary duty
of the master to keep the fire-ap-
paratus in order, the court assumed,
in the absence of evidence speak-
ing upon the question, that it was
out of order in consequence of the
negligence of a fellow servant of
the plaintiff. It was a cold and
brutal assumption, indulged in for
the purpose of putting money and
property above life and humanity.
This has been called "the Moloch
decision." It is not creditable to
the head or to the heart of the
court that rendered it, or of the
judge who consented to be its mouth-
piece. It 1b opposed to the settled
principles of the common law. No
reasoning could properly result in
the conclusion that the failure to
perform a duty primarily resting
upon the master, that of taking rea-
sonable measures to render his
premises safe for his servants, could
be shuffled off as the duty of some
fellow servant. This dreadful holo-
caust, in which a great many
people, some of them women and
children, were burned to death, and
this miserable decision, exonerat-
ing the proprietors of the building
where their negligence was abso-
lutely plain, recall to mind that
passage of Milton in which he de-
scribes: —
"First Moloch, horrid king, be-

smear'd with blood
Of human sacrifice, and parents'


Though for the noise of drums and
timbrels loud

Their children's cries unheard,
that past through fire

To his grim idol. Him the Am-
monite worshipped."
The last sentence must have been
a slip of the tongue of the great
blind poet in dictating the famous
passage. In view of the Massachu-
setts decision above quoted, it
should read, "Him the Mammonite

22 For example, there is a decision
to the effect that negligence on the
part of the proprietor of a factory
cannot be predicated of the fact
that the windows leading to the fire-
escapes were screwed down, where
such windows were light structures
and could easily have been kicked
out, with as little delay as would
be occasioned by raising them if
unfastened, and propping them up:
Huda v. American Glucose Co.,
154 N. Y. 474; aff'g s. c. 13 Misc.
(N. Y.) 657; 34 N. Y. Supp. 931.
A servant can kick the window
out if he happens to think of it
and is not smothered by smoke,
and if his faculties are not over-
whelmed in the dreadful position in
which he suddenly finds himself
placed, — a conclusion which might
impress the minds of the judges
could they be placed in such a situa-
tion and be kept there for a brief
period and then "kicked out."

"Schwandner v. Birge, 33 Hun
(N. Y.) 186.


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4 Thomp. N"eg.] assumption of risk by the servant.

Canadian court, taking an enlightened and humane view of the sub-
ject, has dealt with it in the manner indicated by the abstract of its
decision in the marginal note. 24 It should be kept in mind that the
conclusion may be different where there is a statute requiring the
building to be equipped with fire-escapes and where the statute is
violated by the proprietor of the building, whereby his servants are
burned to death or injured. In such a case, to hold that the servants
accept the risk of the statutory negligence of the master would be, in
effect, to repeal the statute. Such, it has been held by an enlightened
court, is not the law. 25 Even here a judicial tendency has been dis-
covered to fritter away the protection of such a statute. Where such
a statute required "factories" to be equipped with fire-escapes, it was
held that the existence of a chemical laboratory, the entire output of
which was less than two per cent, of the business, which was that
of a wholesale drug company, did not constitute the place a factory
within the meaning of the statute. 26 But it is submitted that stat-
utes which are designed to -conserve human life ought to be liber-
ally construed in the application of civil remedies, so as to promote
the end intended. A building which is in part devoted to the manu-
facture of chemicals, and which, owing to the nature of the business,
is more liable to fire than if it were some other kind of "factory," is
within the very policy and meaning of such a statute, and none the
less so because the larger part of the building may be devoted to the
storage and sale of such chemicals.

§ 4703. Bisk of Injuries from Explosives. 8 — An employe who en-

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 101 of 165)