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Commentaries on the law of negligence in all relations online

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Rep. 871; s. c. 36 C. C. A. 519. who slept on the vessel aher it was

"Eldridge v. Atlas S. ,8. Co., 134 tied to the dock and while it was

N. Y. 187; 8. c. 48 N. Y. St Rep. being prepared for the winter, 'as-

855



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

who has agreed to tend the guy while the consignee discharges a cargo
of coal therefrom, assumes the risk of the guy-rope, tied by an employ^
of the consignee, becoming untied, in consequence of which he falls and
is injured, where he examines the knot before it becomes untied, and
is convinced of its sufficiency." So, where the owner of a steamboat,
engaged in river trade on the Mississippi, had furnished both electric
lights and lard-oil hand-lanterns as a substitute for them, which lan-
terns were the best that could be obtained and were formerly re-
garded as sufficient for such service, and a servant fell overboard while
loading cotton, in consequence of the electric lights going out, a cir-
cumstance not shown to have been due to negligence on the part of the
owner of the vessel, — a recovery of damages was denied on the ground
that the deceased accepted the risk of" the lights going out, it being a
common incident in the employment of such lights. 78 So, where a
dock-laborer attempted to make use in his labor of a large stone, ir-
regular in shape, which had been left on the bed-piece of a marine
railway for the obvious purpose of being used as ballast, and got in-
jured in consequence of so doing, it was held that he accepted the
risk; 79 and so, where a deck-hand on a tug-boat, a part of whose duty
consisted in keeping the deck clear, stepped on a siphon-pipe lying on
the deck, causing him to slip, and he caught in a coil of rope attached
to a tow, the risk of the accident was one which he assumed. 80 But
a longshoreman working in the hold of a vessel under an open hatch,
and injured by the fall into the hatch of merchandise which was be-
ing loaded into another hatch, did not assume the risk. 81

sumed the risk of danger from a fire shoveller assumes the risk of in-
breaking out in the night, he being jury from the fact of a tub used in
familiar with the boat and with hoisting coal from a barge becom-
the method of lighting and heating ing unlatched on striking the bulk-
it, and knowing that the night- head: Dolan v. Atwater, 167 Mass.
watchman had been dismissed: 274; s. c. 45 N. E. Rep. 742. Libel
Lang v. H. W. Williams Transp. in rem maintainable by a member
Line, 119 Mich. 80; s. c. 77 N. W. of a master stevedore's gang at work
Rep. 633; 5 Det. Leg. N. 728; 5 Am. upon the vessel, for injuries caused
Neg. Rep. 74; 31 Chic. Leg. N. 170. by negligent misuse, by a servant of

"Farrell v. Continental Iron the vessel, of a proper appliance

Works, 102 Fed. Rep. 514. furnished for the prosecution of the

n Red River Line v. Smith, 99 work, and under the management of

Fed. Rep. 520; s. c. 39 C. C. A. 620. the vessel's officers: The Anaces, 93

Circumstances under which the Fed. Rep. 240; s. c. 34 C. C. A. 558;

question whether a stevedore en- rev'g s. c. 87 Fed. Rep. 565.
gaged in stowing away lumber in "Moore v. Stetson, 96 Me. 197; s.

the hold of a vessel assumed the c. 52 Atl. Rep. 767.
risk of injury from the lumber slip- M Direct Nav. Co. v. Anderson,

ping out of a box in which it was 29 Tex. Civ. App. 65; s. c. 69 S. W.

being lowered, was a question for Rep. 174.

a jury: Hennessy v. Bingham, 125 M Young v. Hahn (Tex. Civ. App.),

Cal. 627; s. c. 58 Pac. Rep. 200. Cir- 69 S. W. Rep. 203; s. c. rev'd on

cumstances under which a coal- other grounds, 96 Tex. 99; 70

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i

§ 4827. Risks Assumed by Quanymen. — It has been held that an
employ 6 in a stone quarry assumes the risk of injury from the fall-
ing of stone from above, where such falling is due to seams of clay
in the upper rock which run through it in all directions, rendering it
liable to separate along the seams, the existence of which, and the
danger therefrom, the injured employ^ knows ap well as the foreman
or superintendent; 82 that a workman, employed in a quarry in which,
by reason of the constant removal of stone, the conditions and sur-
roundings are constantly changing, assumes the risk of the place be-
coming unsafe, so as to prevent a recovery for an injury due to the
falling of a mass of stone loosened by successive blasts. 88

§4828. Eiakfl Assumed in Blasting. — It has been held that an
employ6 whose duty it is to do any work connected with the blasting
of rock in a stone quarry cannot recover for injuries caused by an
explosion while he is voluntarily drilling out a "missed hole" under
the direction of the foreman, in the ordinary and usual manner; 84
that an employ^, killed at his post £y the fall of a projecting rock,
caused by blasting in an adjacent street, where he has a better op-
portunity than his employer has for observing changes in the rock, as-
sumes the risk of injury from it in the absence of any reason on the part
of his employer to expect that the blasting would weaken the* rock; 85
and that a laborer employed in levelling the bottom of a canal after
it has been blasted, who knows that charges used are often left unex-
ploded, assumes the risk of injury from an explosion of such a charge,
caused by a co-employ6 carelessly striking it with his pick. 86 It seems
• that the duty of giving timely warning that the blast is about to be
discharged is one of the primary or absolute duties which the law puts

S. W. Rep. 950. It has been held "Dolan v. McLaughlin, 33 App.
that a stevedore and the hands Dlv. (N. Y.) 628; s. c. 53 N. Y. Supp.
working under him do not neces- 273; 87 N. T. St. Rep. 273. But it
sarily assume the risk of injury has been held in the same State
from an imperfect or faulty appli- that an employ^ engaged in remov-
ance furnished and rigged by the ing rock thrdwn down from the side
ship, because it is arranged in a, of a hill by a blast does not assume
peculiar manner Insisted upon by the risk of the fall of a loosened
the stevedore, when such manner is rock from the hill, where the danger
not unreasonable and does not re- could have been ascertained by rea-
quire unusual or extraordinary sonable care on the part of the em-
strength of material: Steel v. Mc- ployer: Perry v. Rogers, 91 Hun
Neil, 8 C. C. A. 512; s. c. 60 Fed. (N. Y.) 243; s. c. 36 N. Y. Supp. 208;
Rep. 105. 71 N. Y. St. Rep. 105.

M Mielke v. Chicago 4c. R. Co., 103 ••Hutchinson v. Parker, 39 App.

Wis. 1; s. c. 79 N. W. Rep. 22. Div. (N. Y.) 133; s. c. 57 N. Y. Supp.

"Mielke v. Chicago 4c. R. Co., 103 168; s. c. afl'd, 169 N. Y. 579; 61 N.

Wis. 1; s. c. 79 N. W. Rep. 22. B. Rep. 1130.

"Miller v. Western Stone Co., 61
111. App, 662.



857

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

upon the master, to be discharged by him without reference to the
grade of the servant to whom he commits it. For example, we find
that it has been held that a quarryman does not assume the risk aris-
ing from failure to give timely warning of a blast, as he has the right
to assume that the master will perform his duty in that respect ; and
that the failure of th$ foreman of the quarry to give warning of the
blast, as it is his duty to do, in time to permit the quarryman to get
out of danger, is imputable to the employer; and this whether the neg-
ligence arises from a defective system devised for the purpose of giv-
ing warnings or from a failure of the foreman properly to observe such
system. 87

§ 4829. Risk of Working with Insufficient Help. 88 — The risk of
injury from working at a given task where the master has not em-
ployed sufficient help to perform it with safety, is one which the serv-
ant may or may not be deemed to assume, according to the nature of
the case. The master, in the exercise of his duty to his servants, may
be presumed to know, and if he exercises reasonable care and skill he
ordinarily will know, the number of servants whom it will be neces-
sary to detail to perform a given task with safety. On the other hand,
the servant may be a common laborer, and may not have sufficient
skill or experience to form a judgment on the question, in which case
he <will be entitled to rely upon the judgment of the master. Unless,
therefore, the danger is obvious to his comprehension and imminent,
he cannot be said, as matter of law, to take upon himself the risk of
injury from that source from the mere fact that he continues in the
employment. 89 But if he remains in the employment after discover-
ing that the help is insufficient and that it is dangerous to proceed
without more help, the conclusion being plain to his comprehension,
then he is deemed to accept the risk of injury from that source. 90
If other men are near, whose presence would make the complement
sufficient to avert the danger, and if the necessary tools and implements
are also near, but the injured servant and his companions make no effort
to call upon extra men or to procure the proper tools and implements,

• 7 Belleville Stone Co. v. Mooney, so using it at the order of his f ore-

60 N. J. L. 323; s. c. 38 Atl. Rep. man, although he knew that it was

835; s. c. afl'd, 61 N. J. L. 253; 39 ordinarily operated by two men:

L. R. A. 834 ; 39 Atl. Rep. 764. Colson v. Craver, 80 111. App. 99.

88 See ante, §§ 3758, 3807, 4175, M Swift & Co. v. Rutkowski, 167

4768; post, §§ 4865, 4868. 111. 156; s. c. 47 N. E. Rep. 362; rev'g

88 Thus, it has been held that the s. c. 67 111. App. 209. See also, Mc-

danger from using a circular saw Mullen v. Missouri &c. R. Co., 60 Mo.

without a helper is not so imminent, App. 231 ; Southern &c. R. Co. v.

as matter of law, as to prevent re- Drake, 53 Kan. 1; Thorpe v. Mis-

covery for an injury to an employs souri &c. R. Co., 89 Mo. 650.

858



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VARIOUS OTHER RISKS ASSUMED OR NOT ASSUMED. [2d Ed.

there can, of course, be no recovery, by reason of the special contribu-
tory negligence. 91

§ 4830. Bisk of Injury from the Falling of a File of Lumber.—

An employ^ who is directed by the superintendent to get upon a pile
of lumber quickly, and throw off a piece of timber, does not, as a mat-
ter of law, assume the risk of the pile falling because the piling is im-
properly done, where he does not know that it is not properly piled. 82
An employ^ of a stevedore who has a contract to unload lumber from
a vessel, the employ^ being* put to work merely to pass the lumber
over the rail of the vessel to the defendant's yardmen, who are piling
it up on the defendant's dock, does not assume the risk of injury from
the falling of the piles of lumber; nor, is he deemed to have pre-
sumptive knowledge of the danger, where the evidence is conclusive to
the effect that such a danger is not ordinarily incident to such a busi-
ness, and that such an accident never happened before the one in
question ; but such an accident is to be ascribed to the special or un-
foreseen negligence of the master, or of those for whose conduct the
master is responsible, 98 under a principle already discussed. 94

§4831. Risks Assumed by Carpenters and Joiners. — Carpenters
and joiners follow a more or less dangerous employment, where they
are liable to injury from defective scaffoldings, stagings, and the like,
— a subject elsewhere dealt with. 95 They assume the risk of injury
from sources of danger which are obvious and continuous, in like
manner with servants employed in other situation^. 96 A carpenter
at work on a ladder accepts the risk of the ladder being knocked down
by a co-employ6 engaged in removing waste material with a horse and
cart frequently passing in and out of the building, so as to require the
removal and replacing of the ladder. 91

n Dunlap v. Barney Man. Co., 148 36 App. Div. (N. T.) 355; s. c. 55

Maes. 51; s. c. 18 N. E. Rep. 599. N. Y. Supp. 269. But it has been

"Millard v. West-End St R. Co., held that an employe, twenty-six

173 Mass. 512; s. c. 6 Am. Neg. Rep. years old, who has been living in

287; 53 N. E. Rep. 900. this country but four years, and is

n John Spry Lumber Co. v. Dug- not a carpenter or acquainted with

gan, 182 111. 218; s. c. 54 N. E. Rep. the construction or strength of a

1002; afTg s. c. 80 111. App. 394. roof of a building in which he

M Ante, § 4618. works, except what he derives from

90 Ante, §§ 3947, et seq., 4817, 4818. looking at it, has the right to as-

"Fugler v.. Bothe, 117 Mo. 475; sume that his employer will build
s. c. 22 S. W. Rep. 1113; rev'g s. c. a roof of sufficient strength to pro-
43 Mo. App. 44 (experienced carpen- tect its employes from ice falling
ter sheathing air-shafts fell off a upon it from an adjoining build-
plank on which he had been stand- ing: Gaul v. Rochester Paper Co„
ing and was killed). 72 Hun (N. Y.) 485; s. c. 54 N. Y.

n Byrnes v. Brooklyn Ac. R. Co., St. Rep. 853; 25 N. Y. Supp. 443;



859

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

§ 4832. Bisks Assumed by Servants in Charge of Steam-Boilers. —

An employ^ in charge of a boiler assumed the risk of the parting of the
blowpipe as the steam was turned into it, at the point where the ver-
tical section entered the elbow connecting it with the horizontal section,
allowing the horizontal section to fly up and .strike him, where a com-
mon laborer, who, shortly before the accident, had disconnected the
pipe at the elbow in order to clean it, had informed him that there was
only one thread on the pipe, and that it was barely caught in the elbow,
and was instructed by him to replace it, in the same condition. 98

§ 4833. Bisks Assumed by Employes Working in Ice-Houses. — A

laborer employed to fill an ice-house, whose work requires him to stand
upon the tiers of ice-blocks,, assumes, as a risk ordinarily incident to
his employment, the danger of an injury caused by the slipping of a
cake of ice."

§ 4834. Bisk of Injury from Straining in Lifting and from Over-
work. — In general, a servant is not entitled to recover damages from
his master for injuries received in consequence of straining and over-
taxing himself in lifting heavy objects in his master's service, since
the servant is the judge of his own lifting capacity, and the risk of not
overtaxing it rests upon him. 1 ?

§ 4835. Bisk of Injury Incurred in Protecting the Master's Prop-
erty from Fire. — While a servant is under the duty of exerting him-
self to protect hia master's property from destruction by fire, yet if, in
doing so, he subjects himself to great and unusual hazard, he is
deemed, by reason of his own voluntary act, to assume the risk at-
tendant upon the undertaking. 101

§4836. Bisk of Injury from Poisons, Microbes, eta — In a very
peculiar case it appeared that the plaintiff was employed in the de-

s. c. aff'd sub nom. Eagle v. Roches- is deemed to assume the risk so

ter Paper Co., 145 N. Y. 603. that he cannot recover damages

*Mackey v. Newberry Furnace from the owner: Hurley v. Lukens

Co., 119 Mich. 552; s. c. 5 Det. Leg. Iron &c. Co., 186 Pa. St 187; s. c.

N. 909; 78 N. W. Rep. 783. Cir- 40 Atl. Rep. 321.

cumstances under which an em- "Shea v. Kansas City Ac. R. Co.,

ploye in a blasting-furnace, who 76 Mo. App. 29.

leaves the building at night for his 10 ° Ferguson v. Phoenix Cotton

own pleasure, and who, in return- Mills, 106 Tenn. 236; s. c. 61 S. W.

ing, walks for his own convenience Rep. 53.

in front of a furnace which he ,01 Maltbie v. Belden, 167 N. Y.

knows is undergoing repairs and 307; s. c. 60 N. E. Rep. 645; 54 L.

succeeds in falling into a hole in R. A. 52 ; rev'g s. c. sub worn. Maltby

the floor in front of the furnace, v. Belden, 60 N. Y. St. Rep. 824.

860



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VABIOUS OTHER RISK8 ASSUMED OR NOT ASSUMED. [2d Ed.

fendantfs paper-mill in assorting rags and old paper. The rags arid
paper were brought in large sacks, and emptied on to the assorting-
tables. A sack containing old paper gathered from some hospital,
dumped on the table where the plaintiff worked, contained pieces of
cotton saturated with blood and various medicines, and also pieces of
decayed human flesh. These substances emitted an unbearable odor,
which, as the evidence tended to show, so poisoned the plaintiff that she
became violently ill. It was held that she did not assume the risk,
but that the defendant was liable for the injury she sustained. 102


§4837. A Catalogue of Risks which the Servant Assumes. —

Among such risks have been enumerated : — The risk of injury to an '
employ^ in a rolling mill from a deflection of rails in their exit from
the rolls, where such deflection is of frequent occurrence and cannot
be avoided by the exercise of ordinary and reasonable caution ; 108 the
risk of injury from moving heavy timbers which have not been squared
along a narrow runway without blocking them so that they cannot
roll from the "dolly" by means of which they are moved, where the
employ6 is not required to do the work in any particular manner; 104
the risk of injury to an employ^ in a copper smelter from the explosion
of slag adhering to hot bricks of the metal, which it is the duty of the
employe to immerse in water, the explosion occurring in the ordinary
process of the work; 105 the risk of injury to a locomotive-engineer
through the failure to provide a sufficient bridge at a point where he
is obliged to walk in order to oil his engine; 106 the risk of injury to a
person of mature years and intelligence caused by having a stick which
he uses in shifting a belt caught in the fringed edges of the belt and
broken into pieces, one of which is hurled into his eye, destroying it,
where the belt is in plain view, its velocity obvious, and its defects
apparent; 107 the risk of injury from the falling of slabs of stone after
they have been placed in an upright position on a car, to an employe
whose duty it is to brace them in an upright position after they are so
placed, so that they will not fall while the car is in motion ; 108 the risk

1W Nickel v. Columbia Paper Stock m Becker v. Baumgartner, 5 Ind.

Co., 95 Mo. App. ?26; s. c. 68 S. W. App. 576; s. c. 32 N. E. Rep. 786.

Rep. 955. 10B Stone v. Bedford Quarries Co.,

103 Inland Steel Co. v. Eastman, 80 156 Ind. 432; s. c. 60 N. E. Rep. 35.

111. App. 59. The risk of stone placed beside the

10 *Agnew v. Supple, 80 111. App. track falling on a servant engaged

437. in loading stone on a dump-car,

106 Fitzgerald v. Honkomp, 44 111. while he was pushing the car, has

App. 365. been held to be an ordinary risk

w Chicago &c. R. Co. v. Abend, 7 of the service: Small wood v. Bed-
Ill. App. 130 (doubtful decision). ford Quarries Co., 28 Ind. App. 692;

s. c. 63 N. E. Rep. 869.

861



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

of injury to a boy seventeen years old, who had worked in his employ-
er's mill for two years and in the dye room for four weeks, due to his
slipping on the wet floor of the dyeing room, falling into a vat and get-
ting scalded; 109 the risk of injury to an employe of full age and ordi-
nary intelligence, resulting from his slipping and falling while at-
tempting, at the direction of the overseer of his employer, to hang a
rope for holding a bag, while being filled with cotton taken from a
dryer, over spikes driven into a beam so high above the top of the dryer
that he could only reach it with his finger, which he had done once or
twice before, and about which there was no concealed^ danger or de-
fect ; 110 in the case of one who works on a raised platform which has no
railing, assisting in guiding blocks of ice along a chute, the risk of fall-
ing off ; llx ^in the case of a weaver, the risk of being injured by a wire
falling out of a carpet-loom, — it being held that she cannot recover
of her employer, where it appears that there was no lack of inspection
and no defects in the wire, and that in spite of the greatest care wires
would fly out, to the knowledge of such weaver, whose duty it was to
watch and replace them; 112 in the case of a boiler inspector, who rep-
resents that he possesses the requisite experience to perform such work
and who sees and knows the conditions surrounding him, the risk of
being injured by falling into a combustion chamber in which there
are hot ashes and burning soot ; 118 in the case of a boy eighteen years
of age, the risk of falling into an uncovered vat of molten metal on
the edge of which he stood to hammer a cog-wheel ; 114 in the case of
a servant who had daily used a steep stairway for a period of six
months, the danger of falling down it while hastening to answer a
telephone call which he supposed to be urgent ; 115 in the case of an em-
ploy^ familiar with the conditions, while passing from one part of the
factory to another, the risk of falling into an unguarded vat of vitriol
in the floor of the factory, which he was unable to see, either from
the want of light or from steam arising from the vat; 116 in the case
of an employ^ who had worked in a shoe factory for ten years, where
a planing-machine was in operation, the risk of being struck in the

lw Bessey v. Newichawanick Co., "'Westville Coal Co. v. Mtlka, 75

94 Me. 61; s. c. 46 Atl. Rep. 806; 111. App. 638.

Roberts v. Indianapolis St.. R. Co., m Corning Steel Co. v. Pohlplatz,

158 Ind. 634; s. c. 64 N. E. Rep. 217. 29 Ind. App. 250; s. c. 64 N. E. Rep.

110 Wilson v. Tremont &c. Mills 476.

Co., 159 Mass. 154; s. c. 34 N. E. Rep. "Mann v. Moore, 24 Ky. L. Rep.

90. 253; s. c. 68 S. W. Rep. 402 (no off.

m Moulton v. Gage, 138 Mass. 390. rep.).

112 Daly v. Alexander Smith &c. 1M Carrigan v. Washburn &c. Man.

Carpet Co., 69 Hun (N. Y.) 77; s. c. Co., 170 Mass. 79; s. c. 48 N. E.

63 N. Y. St Rep. 55; 23 N. Y. Supp. Rep. 1079.
269.

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eye by a small piece of wood from the planer, where he had seen saw-
dust and chips fly from the planer in his direction whenever it was in
operation. 117

§ 4838. Further Risks which the Servant Assumes. — In the case
of an employ^ in a mill in which, after work closed, the lights were
usually out by the time the plaintiff, passed down the main alley of
the room, the risk of slipping and falling after the lights were out,
where, on previous nights, there had been sufficient natural light
for her to see her way out, and on the night of the accident other con-
ditions were the same as on previous nights, but there was less natural
light; 118 in the case of a servant who left his machine to seek one of
his employers in order to have a cause of danger to him removed, but
who, not finding the one sought, returned to the machine, the risk of
injury from such danger; 119 in the case of a servant familiar with the
custom of irom merchants to keep their stock of metal bars standing
against the walls of their store, between racks made of pegs set in the
walls* the risk of the falling of a metal bar which was placed in a
rack wherein there was not sufficient room for it to lean against the
wall, where the cause of its falling was not shown, and the only evi-
dence of negligence was that half of the thickness of the bar projected
beyond the ends of the pegs ; 120 in the case of a servant having charge
of th« boiler-room in a mill, the risk of falling into a tank under the
floor, used to receive drippings and exhaust steam from the engine,
which had a cover consisting of pieces of flooring tongued and grooved
but not fastened together, where the servant had worked in the same
place for three and one-half years, and was familiar with the tank and
cover*, 121 in the case of a servant who was helping to uncouple a pipe
which had been bent to avoid a rock and covered with earth to hold it
in place, the danger of the pipe springing back when uncoupled and
knocking him into a nearby excavation, where the method of uncoup-
ling the pipe was left to the men themselves > 122 in the case of a man
of large size ordered to clean beneath vats in a brewery, resting on sup-
ports at a distance of about thirteen inches from the floor, the risk of
becoming stuck between the vat and the floor and injuring himself in
attempting to get out ; 128 in the case of an experienced servant attempt-

m McAuliffe v. Gale, 180 Mass. Div. (N. Y.) 328; s. c. 72 N. Y. Supp.

361; s. c. 62 N. E. Rep. 269. 712.

118 Donovan v. American Linen 1M 0'Sullivan v. Flynn, 67 App.



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 119 of 165)