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Commentaries on the law of negligence in all relations online

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lumber down a chute was the negli-
gence of a fellow servant of one en-
gaged upon the vessel in stowing
the lumber and struck by such
piece); Slavens v. Northern Pac. R.

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servant of such employe for injuries due to the fact that such em-
ploye, in replacing the old floor without instructions to do so, failed
to nail down the boards, where, had that been done, the floor would
have been entirely safe. 11 An employer was held not liable for the
death of his employe, caused by the blowing off of a door of a blast-
stove while he was engaged in tightening a nut on it, where there was
bo danger in working at the door unless the blast was on, and the
blast was on, of which fact he was ignorant, solely through the neg-
ligence of his co-employ6, under whose direction he was working. 12
A telegraph company was not liable for the fall of a pole upon an em-
ploye engaged in raising it, due to the slipping of the pole upon a
shovel with a pointed end, directed by the foreman to be used instead
of a crutch, which had been broken, in the absence of evidence that
the company did not furnish a sufficiency of proper tools at the depot
from which those which were used were taken, or within convenient
reach. 18

§ 3762. Cases Denying or Failing to Apply this Principle. — Cases
are not wanting which, though seemingly apt for the application of
this principle, either deny it or refuse to apply it. One of these cases
holds that an employe who has received general instructions to let
down a heavy cylinder of boiler-iron and to rivet it to the wheel-case
in a mill, has authority, by necessary implication, to select and use
appliances, such as a rope and tackle for the work, so as to charge
the employer with liability for his negligence, which results in in-
jury to another employ^, although a rope and tackle belonging to
other parties was already in position for the work, where this was
taken away before the work was completed by the party in charge
of it. 14 In another such case it was held that where a railroad brake-
man was injured in consequence of a defective road-bed, the defense
that such injury was caused by the negligence of a fellow servant

Co.. 97 Fed. Rep. 255; s. c. 38 C. C. for heating air to blow into a blast-

A. 151 (railway section-man killed furnace* caused by the unexplained

by the failure of the crew properly opening of a cock, letting through

to drain a bluff overhanging the such oven a blast of air heated to

track, whereby a landslide was pro- nearly 1,000 degrees, where the ma-

daced). - chine was reasonably safe to oper-

"Nemier v. Riter, 179 Pa. St. 557; ate, and its safe operation neces-

s. c. 36 Atl. Rep. 335; 28 Pitts. L. J. sarily depended upon the care, in-

(X. S.) 58. telligence, and fidelity of the fellow

5: Dahlke v. Illinois &c. R. Co., workman of the person killed : Dana

100 Wis. 431; s. c. 76 N. W. Rep. 362. v. Crown Point Iron Co., 67 Hun

"Carroll v. Western Union Tel. (N. Y.) 586; s. c. 51 N. Y. St. Rep.

Co.. 160 Mass. 152; s. c. 35 N. E. 238; 22 N. Y. Supp. 455.

Rep. 456. An employer was held not M Telander v. Sunlin> 44 Fed. Rep.

liable for the death of an employe 1 664.
engaged in cleaning an oven used


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4 Thomp. Neg.] duties and liabilities of the master.

could not apply; since the fellow-servant doctrine never extended
further than to those things happening through negligence in the
operation of the road, in contradistinction to negligence in failing
to furnish a safe road-bed and appliances. 15 That the restriction
which the North Carolina court thus places on the fellow-servant
doctrine in its application to railway service is not shared by other
courts will appear from many of the decisions already cited. 18 An-
other such case makes a distinction between the primary duty of the
master of furnishing reasonably safe appliances, and the responsibility
of the servants for their own safety in the mere details of their work,
by holding that a railway company is liable for injuries to an express-
man in its employ, received in a collision caused by defective brakes,
where it is the duty of the inspectors in the yards to see that the
brakes are in order, the train-hands having no duty in that respect. 17
Still another case impinges on the doctrine announced in the para-
graph above, by holding that where the defect in the planking over
a railroad-crossing, by reason of which a brakeman was injure^ while
coupling cars, had existed for so long a time that the company may
be presumed to have had notice of it, the fact that the section-foreman
was furnished with materials, and instructed generally to make repairs
when needed, does not relieve the company from the charge of neg-
ligence. 18 Another court, which has perhaps pushed the doctrine as
far as any other court, has held that if a servant is injured by the
breaking of a chain designed for his permanent use in hoisting goods,
in consequence of a fellow servant's negligence in using old instead
of new iron in replacing a link, the master is liable for the injury,
though the proximate cause of it was the negligence of the fellow
servant in making the link; since, as the chain was a permanent ap-
pliance, the master was bound to see that it was safe, as well as to
furnish proper material and a competent smith to make it. 19 Nor,

"Wright v. Southern R. Co., 128 Chicago Ac. R. Co., 62 Wis. 338;

N. C. 77; s. c. 38 S. E. Rep. 283. Dahlke v. Illinois Ac. R. Co., 100

"Terre Haute &c. R. Co. v.Leeper, Wis. 431; s. c. 76 N. W. Rep. 362;

60 111. App. 194; Ling v. St. Paul &c. and especially Slavens v. Northern

R. Co., 50 Minn. 160; s. c. 52 N. W. Pac. R. Co., 97 Fed. Rep. 255; s. c.

Rep. 378; Oelschlegel v. Chicago Ac. 38 C. C. A. 151.

R. Co., 73 Minn. 327; s. c. 76 N. W. 1T Wood v. Long Island R. Co., 159

Rep. 56, 409 [following LIndvall v. N. Y. 546; s. c. 54 N. E. Rep. 1095;

Wood, 41 Minn. 212]; Stourbridge aff'g s. c. 42 N. Y. Supp. 140; 11

v. Brooklyn City R. Co., 9 App. Div. App. Div. (N. Y.) 16.

(N. Y.) 129; s. c. 41 N. Y. Supp. 128; "Fluhrer v. Lake Shore Ac. R.
75 N. Y. St. Rep. 586; Ulrich v. New * Co., 121 Mich. 212; s. c. 80 N. W.

York Ac. R. Co., 25 App. Div. (N. Rep. 23.

Y.) 465; s. c. 51 N. Y. Supp. 5; 85 "Haskell v. Cape Ann Anchor

N. Y. St. Rep. 5; Prybilski v. North- Works, 178 Mass. 485; s. c. 59 N. E.

western Coal R. Co., 98 Wis. 413; Rep. 1113.
s. c. 74 N. W. Rep. 117; Peschel v.


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[2d Ed.

in the view of another court, is the master relieved from liability for
an injury to a servant caused by a defective appliance constructed
for his use by a fellow servant, by reason of the fact that the con-
struction of similar appliances was ordinarily left to fellow servants. 10
This is quite in conformity with the principle that the servant, of
whatever grade, to whom the master commits the duty of constructing
the appliances to be used by his servants, is, to that extent, the vice-
principal of the master. 21

§ 3763. What Instructions on this Subject are Proper and what
Improper. — As elsewhere seen, 21 the duty of the master to exercise
reasonable care to the end that the place in which his servant is re-
quired to work is reasonably safe is a primary duty of the master in'
the sense that it cannot be delegated, or that, if delegated, the person
to whom it is delegated is the alter ego or vice-principal of the master,
and that his negligence in the discharge of this duty is the master's
negligence. Therefore, if there has been a failure in the performance -
of the duty, it will be no defense on the part of the mastef that he
employed a competent superintendent or foreman, supplied him with
necessary appliances, and gave him all needful instructions; 28 there-
fore, in an action by a servant against his master grounded upon neg-
ligence in this particular, for injuries occasioned by the fall of a build-
ing which was being erected over a mill in which the plaintiff was

* Donnelly v. Booth Bros. Ac.
Granite Co., 90 Me. 110; s. c. 37 Atl.
Rep. 874.

*Post 9 §§ 3988, 4923, et seq. So, it
has been held that a servant injured
by a fall from a scaffold, caused by
the tipping of an unfastened ladder,
may recover therefor, although the
ladder was placed by a fellow serv-
ant, since it is the duty of the mas-
ter to furnish a safe place for the
employ^ to work: Swift & Co. v.
Wyatt, 75 111. App. 348; s. c. 3 Chic
L. J. Wkly. 165. See also, Prescott v.
J. Ottmann Lithographing Co., 20
App. Div. (N. Y.) 397; s. c. 46 N. Y.
Supp. 812 (master responsible for
the neglect to oil a machine, where
no employs is charged with that
duty) ; Pursley v. Edge Moor Bridge
Works, 67 N. Y. Supp. 719; s. c. 56
App. Div. (N. Y.) 71 (circumstances
under which erection of a scaffold
between piers in a river for the
erection of a bridge is a primary
duty of the master and not a mere
detail of work* intrusted to a fellow
servant); Rice Ac. Malting Co. v.

Paulsen, 51 111. App. 123 (employer
liable for an injury to an employe"
from a defect due to the negligence
of a fellow employe* where the em-
ployer had no notice of the defect
and the employe" injured had not);
Mullane v. Houston 6c. R. Co., 21
Misc. (N. Y.) 10; s. c. 46 N. Y.
Supp. 957; aff'g s. c. 20 Misc. (N. Y.)
434; 45 N. Y. Supp. 1039 (an as-
surance by a track-master of a
street-railway* company to a work-
man under his control, to induce
the latter to enter a hole which
was dangerous while the cable was
in operation, that he would order
the engineer not to start the cable.
Is a matter pertaining to the duty
of the master to provide a safe place
of work, and is not a mere detail of

"Post, § 3874.

»Balrd v. Reilly, 92 Fed. Rep.
884; s. c. 35 C. C. A. 78; 63 U. S.
App. 157; Spring Valley Coal Co. v.
Rowatt, 196 111. 156; s. c. 63 N. E.
Rep. 649; aff'g s. c. 96 111. App. 248.


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4 Thomp. Neg.] duties and liabilities of the master.

working, a request for instructions to the effect that if the defendants
•employed an experienced carpenter to erect the building they were not
liable, was condemned as attempting to apply to the obligation of the
master to furnish a reasonably safe place for his servant to work,
the same principles which would have controlled his liability to third
persons had they been injured by the fall of the building. The Court
said: "The obligation of an employer to his employ^ arises out of
their contractual relation and is not necessarily the same as his duty
to strangers in the management of his property." 24 In such an action
it was not error to instruct the jury that if the defendant unnecessarily
and dangerously permitted shavings to accumulate in a passageway
between a moulding-machine and a rip-saw, and if the plaintiff, in
"obedience to orders, was compelled to pass near them, and if they
caused him to fall and injure himself, that would constitute negli-
gence on the part of the master. 15

§3764. Personal Negligence of the Master. — If an injury to the
servant "is owing to the direct negligence of the master, — as, where
he is personally present, superintending the work and giving orders, —
the master is answerable for the damages to the same extent as though
the relation of master and servant did not exist. 26 The master, al-
though engaged at a common labor with the servant, does not become
a fellow servant within the meaning of the rule, and his servant does
not impliedly undertake to assume the risk of injury from his negli-
gence when so acting. 27 The rule is the same where a negligent in-
jury is visited upon a servant in consequence of acts which are done by

"Hearn v. Quillen, 94 Md. 39; s. c. roneous by reason of the fact that It

50 Atl. Rep. 402. did not use the words "skilled in the

"Myers v. Concord Lumber Co., business" after the words "person

129 N. C. 252; s. c. 39 S. E. Rep. 960. of ordinary prudence": Downey v.

In an action against a mining com- Gemini Min. Co., 24 Utah 431; s. c.

pany for injuries to an employe the 68 Pac. Rep. 414.

court had elsewhere .instructed the * Lorentz v. Robinson, 61 Md. 64

jury that "the defendant was under (defendant called to plaintiff to step

no obligation to keep the plaintiff on an elevator which defendant

absolutely safe and free from tian- knew was out of order, in order to

ger," but that its duty was "to use stop it, and it fell with plaintiff),

ordinary care, which is the care or- "Ante, § 3754; Ashworth v. Stan-

dinarily exercised by persons of wix, 3 El. & El. 701; s. c. 7 Jur. (N.

average prudence under the circum- S.) 467; 30 L. J. (Q. B.) 183; 4 L.

stances." Another instruction to the T. (N. S.) 85; Roberts v. Smith, 2

effect that it was the duty of the Hurl. & N. 213; Keegan v. Kava-

defendant to keep its premises in a nagh, 62 Mo. 230; Ryan v. Fowler, 24

reasonably safe condition, — in such N. Y. 410; McMahon v. Walsh, 11

a condition as they would have been Jones & Sp. (N. Y.) 96; Berea Stone

kept by a person of ordinary pru- Co. v. Kraft, 31 Ohio St. 287, 291,. per

dence under the same circumstances, Boynton, J.; Blink v. Hubinger, 90

considering the nature of the work Iowa 642; s, c. 57 N..W. Rep. 593.
to be performed, — was held not er-


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[2d Ed.

another servant under the direct orders of the master, — in which
case the negligence of the servant in executing the orders is, under
the rule of respondeat superior, the negligence of the master. 28

§3765. When Servant may Rightfully Assume that Master has
Done Ms Duty in this Respect. — A servant is entitled to assume, in
the absence of notice to the contrary, that the master has exercised
reasonable care and skill in providing for the safety of the servants. 2 *
For instance, he may rightfully rely upon the assumption that his em-
ployer has done his duty by furnishing reasonably safe machinery,
appliances, and surroundings. 80

Article II. Degree op Care Required op the Employer.


3767. Master not liable as an in-

surer, but bound only to the
exercise of ordinary or rea-
sonable care.

3768. Rule of reasonable care ap-

plied to the safety of ma-
chinery, appliances, 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

3770. Explanations of this doctrine.

3771. Further explanations.

3772. This care varies according to

the danger to be avoided.

"Swensen v. Bender 114 Fed.
Rep. 1; s. c. 51 C. C. A. 627 (master
ordered walls of a tunnel to be
planked so as to hide the fact that
the tunnel was insufficiently tim-
bered or propped).

"Carroll v. Tidewater Oil Co., 67
N. J. L. 679; s. c. 52 Atl. Rep. 275.

"Illinois Steel Co. v. Mann, 100
111. App. 367; s. c. aff'd, 197 111. 186;
64 N. E. Rep. 328. An employe has
a right to assume that his employer
will use reasonable care in the con-
struction of a shed for storing ma-
terials, to have it of suffjcient
strength to bear all of the materials
it is designed to bear, and that he


3773. Master not bound to exercise a

high and exhaustive degree
of care.

3774. Not liable for accidents not

reasonably to be anticipa-

3775. Rule excludes liability for in-

juries proceeding from the
act of God, or from inevita-
ble 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 re-


will not overload it so as to cause it
to break and fall, while employes
are at work upon it: D. Sinclair Co.
v. Waddill, 99 111. App. 334; s. c.
aff'd, 200 111. 17; 65 N. E. Rep. 437.
In the absence of notice that a place
or appliance is dangerous, a servant
may properly act upon the assump-
tion that the master has used rea-
sonable care in putting the appli-
ance with which and the place in
which he is to work in a reasonably
safe condition: Hlmrod Coal Co. v.
Clark, 99 111. App. 332; s. c. aff'd, 197
111. 514; 64 N. E. Rep. 282. An em-
ploye* engaged in blasting has the
right to assume that his employer


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4 Thomp. Neg.] duties and liabilities op the master.

§ 3767. Master Not Liable as an Insurer, but Bound Only to the
Exercise of Ordinary or Seasonable Care. — In the discharge of these
obligations, — that of maintaining safe premises whereat the servant is
to work ; that of selecting and maintaining safe machinery, tools and
appliances wherewith he is to work; that of employing and keeping
in his employ safe, competent, sober and fit servants in association with
whom to work; that of establishing and enforcing rules and regula-
tions for the safe conduct of his business ; that of systematizing his
business where it is complicated; that of warning and instructing his
servants where they need warning and instruction, — while the obli-
gation of the master is absolute in the sense that it cannot be delegated
so as to devolve his responsibility upon another, 1 yet it is not abso-
lute in the sense that he is an insurer or warrantor of results in its
performance. He does not warrant the safety or sufficiency of his
premises, machinery, tools and appliances, or the competency or fit-
ness of the servants whom he selects to carry on his work, or the suffi-
ciency of the rules and regulations which he may have established for
the conduct of his work, or the adequacy of the system which he may
have devised to. pre vent accidents, or the adequacy of the warnings
and instructions which he may have given or prescribed to be given
to his inexperienced or youthful servants ; but in all these and in other
risks the limit of his duty and obligation is the exercise of reasonable
or ordinary care. 2 Therefore an instruction to a jury which imposes

has exercised ordinary care in pro-
viding a safe place to work, and
may rely on the implied assurance
that the place is safe; but the em-
. ployer cannot be held as an Insurer
of its safety; and an instruction
that the employe* has a right to rely
on the implied assurance that the
place contains no latent defects is
erroneous: Lanza v. Legrand Quarry
Co., 115 Iowa 299; s. c. 88 N. W.
Rep. 805.

'Post, §§ 3874, 3988, 4056, 4057,

*Post f § 3986; Little Rock Ac. R.
Co. v. Duffey, 35 Ark. 602; Burling-
ton Ac. R. Co. v. Liehe, 17 Colo. 280;
s. c. 29 Pac. Rep. 175 (servant can-
not recover without proving negli-
gence) ; Colorado Cent. R. Co. v. Og-
den, 3 Colo. 499; O'Keefe v. National
Folding Box Ac. Co., 66 Conn. 38;
s. c. 33 Atl. Rep. 587 (rule applies in
case of- employe's of tender age) ;
Quinn v. Johnson Forge Co., 9
Houst. (Del.) 338; Green v. Sansom,
41 Fla. 94; s. c. 26 South. Rep. 332;
Central R. Ac. Co. v. Lanier, 83 Qa.


587; s. c. 10 S. B. Rep. 279 (ordinary
diligence or common prudence);
Chicago Ac. R. Co. v. Mahoney, 4
111. App. 262 (is held only to the
employment of every precaution
against danger which a reasonably
prudent man would employ under
the same circumstances) ; Kranz v.
White, 8 111. App. 583; Chicago Ac.
R. Co. Brangonier, 11 111. App. 516;
Wabash Ac. R. Co. v. Fenton, 12 111.
App. 417; Chicago Ac. R. Co. v.
Pratt, 14 111. App. 346; East St.
Louis Pack. Ac. Co. v. McElroy, 29
111. App. 504* Chicago Ac. R. Co. v.
Becker, 38 111. App. 523; Gartside
Coal Co. v. Turk, 40 111. App. 22;
Consolidated Coal Co. v. Scheller, 42
111. App. 619; Chicago Anderson
Pressed-Brick Co. v. Sobkowiak, 45
111. App. 317; s. c. aff'd, 148 111. 573;
36 N. E. Rep. 572; Peoria Ac. R. Co.
v. Hardwick, 48 111. App. 562; Illi-
nois River Paper Co. v. Albert, 49
111. App. 363; McCarthy v. Muir, 50
111. App. 510; Harsha v. Babicx, 54
111. App. 5&> (not bound to furnish
machinery and appliances absolutely

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[2d Ed.

upon a railway company the duty "to do everything that can be rea-
sonably done" for the safety of its employ6s, and "to have the struc-

safe and suitable, but only such as
are "reasonably" safe and suitable
for the purpose for which they are
used); Chicago Ac. R. Co. v. Du-
Bois, 66 111. App. 181; Belleville
Pump Ac. Works v. Bender, 69 111.
App. 189; Chicago Ac. R. Co. v. Gar-
ner, 78 111. App. 281; Western Screw
Co. v. Johnson 86 111. App. 89 (mas-
ter liable to his servant only for
negligence) ; Indianapolis 6c. R. Co.
v. Love, 10 Ind. App. 554; Chicago
Ac. R. Co. v. Lee, 17 In/d. App. 215;
s. c. 46 N. B. Rep. 543; Cooper v.
Iowa Cent. R. Co., 44 Iowa 134; Kan-
sas Pac. R. Co. v. Little, 19 Kan.
269; s. c. 6 Rep. 199; 6 Cent L. J.
60; Atchison Ac. R. Co. v. Winston,
56 Kan. 456; 8. c. 43 Pac. Rep. 777;
Wormell v. Maine Ac R. Co., 79 Me.
397; 8. c. 4 N. Eng. Rep. 696; 10
Atl. Rep. 49; Wonder v. Baltimore
Ac. R. Co., 32 Md. 411; Seaver v.
Boston Ac. R. Co., 14 Gray (Mass.)
465; King v. Boston Ac. R. Co., 9
Cush. (Mass.) 112; Ford v. Pitch-
burg R. Co., 110 Mass. 240; Jones v.
Granite Mills Co v 126 Mass. 84;
s. c. 7 Rep. 146; Fort Wayne Ac. R.
Co. v. Gildersleeve, 33 Mich. 133;
Marshall v. Widdicomb Furniture
Co., 67 Mich. 167; s. c. 11 West. Rep.
193; 34 N. W. Rep. 541 j Jungnitsch
v. Michigan Malleable Iron Co'., 105
Mich. 270; s. c. 2 Det. Leg. N. 107;
63 N. W. Rep. 296 (does not extend
to such care as will reduce the lia-
bility of accident to the minimum) ;
Hughley v. Wabasha, 62 Minn. 245;
s. c. 72 N. W. Rep. 78; O'Donnell v.
Baum, 38 Mo. App. 245; Krampe v.
St. Louis Brew. Assn., 59 Mo. App.
277; Lewis v. St Louis Ac. R. Co.,
59 Mo. 495; Porter v. Hannibal Ac.
R. Co., 71 Mo. App. 66; Covey ▼.
Hannibal Ac. R. Co., 86 Mo. 635;
Huhn v. Missouri Pac. R. Co., 92 Mo.
440; s. c. 10 West Rep. 405; 4 S. W.
Rep. 937; Gutrldge v. Missouri Pac.
R. Co., 94 Mo. 468; s. c. 13 West
Rep. 644; 7 S. W. Rep. 476; Gutridge
v. Missouri Pac. R. Co., 105 Mo. 520;
Higgins v. Missouri Pac. R. Co., 43
Mo. App. 547; Swift A Co. v. Holou-
bek, 55 Neb. 228; s. c. 4 Am. Neg.
Rep. 509; 75 N. W. Rep. 584 (even
in case of a servant of immature
years); Harrison v. Central R. Co.,
31 N. J. L. 293; Painton v. North-

VOL. 4 THOMF. NEG. — 4

ern Cent. R. Co., 38 N. Y. 7 (is bound
only to the exercise of due care and
diligence, and the burden is on the
plaintiff to show negligence); Bal-
lard v. Hitchcock Man. Co., 51 Hun
(N. Y.) 188; s. c. 21 N. Y. St Rep.
548; Kaye v. Rob Roy Hosiery Co.,
51 Hun (N. Y.) 519 ; 8. c. 21 N. Y. St
Rep. 668; Carlson v. Phoenix Bridge
Co., 55 Hun (N. Y.) 485; s. c. 29
N. Y. St. Rep 553; 8 N. Y. Supp.
634; s. c. aff'd, 132 N. Y. 273; 30 N.
E. Rep. 750; Probst v. Delamater,
100 N. Y. 266; Dobbins v. Brown,
119 N. Y. 188; 8. c. 28 N. Y. St. Rep.
957; 23 N. E. Rep. 537 (the adoption
of all reasonable means and precau-
tions to provide for the safety of his
servants while in the performance
of their work); McGovern v. Cen-
tral Vermont Ac. R. Co., 123 N. Y.
180; s. c. 33 N. Y. St. Rep. 416; 25
N. B. Rep. 373; Blddescomb v. Cam-
eron, 161 N. Y. 637; 8. c. 57 N. E.
Rep. 1104; aff'g s. c, 35 App. Div.
(N, Y.) 561; 55 N. Y. Supp. 127;
Chesson v. John L. Roper Lumber
Co., 118 N. C. 59; s. c. 23 S. E. Rep.
925; Mad River Ac. R. Co. v. Barber,
5 Ohio St 541; Manville v. Cleve-
land Ac. R. Co., 11 Ohio St 417;
Toledo Ac. R. Co. v. Beard, 20 Ohio
C. C. 681; 8. c, 11 Ohio C. D. 406;
Lake Shore Ac. R. Co. v. Gilday, 16
Ohio C. C. 649; s. c, 9 Ohio C. D. 27;
Sykes v. Parker, 99 Pa. St 465; Le-
high Ac. Coal Co. v. Hayes, 128 Pa.
St. 294; 8. c, 18 Atl. Rep. 387; 5 L.
R. A. 441; 24 W. N. C. (Pa.) 559;
47 Phila. Leg. int. 384; McCombs v.
Pittsburgh Ac. R. Co., 130 Pa. St.
182; s. c. 18 Atl. Rep. 613; Gunter v.
Graniteville Man. Co., 15 S. C. 443;
Ex parte Johnson, 19 S. C. 492 ; Sand-
ers v. Etiwan Phosphate Co., 19 S.
C. 510; Gulf Ac. R. Co. v. Johnson,
1 Tex. Civ. App. 103; s. c. 20 S. W.
Rep. 1123; Houston Ac R. Co. v. Kel-
ley, 13 Tex. Civ. App.*l; s. c. 34 S.
W. Rep. 809; rehearing denied, 13
Tex. Civ. App. 25; s. c. 46 S. W. Rep.
863; Texas Ac. R. Co. v. King, 14
Tex. Civ. App. 290; s.c. 37S.W. Rep.
34; The Oriental v. Barclay, 16 Tex.
Civ. App. 193; s. c. 41 S*. W. Rep.
117; s. c. rev'd on a question of prac-
tice only, 93 Tex. 425 (that prudence
and care in respect to the machinery
or appliances which persons of or-


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