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Commentaries on the law of negligence in all relations online

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Div. (N. Y.) 620; s. c. 46 N. Y. a safe and proper derrick).

Supp. 137; 80 N. Y. St. Rep. 137. "Moore v. McNeill, 35 App. Div.

"Burke v. National India Rub- (N. Y.) 323; s. c. 54 N. Y. Supp.

ber Co., 21 R. I. 446; s. c. 44 Atl. 956; Thomas v. Ann Arbor R. Co.,

Rep. 307. 114 Mich. 59; s. c. 4 Det. Leg. N.

"a See ante, §§ 3760, 3953, 3954, 485; 72 N. W. Rep. 40; Lambert v.

3999, etseq. Missisquoi Pulp Co., 72 Vt 278; s.

18 Moore v. McNeill, 36 App. Div. c. 47 Atl. Rep. 1085; O'Connor v.

(N. Y.) 323; s. c. 54 N. Y. Supp. Hall, 52 App. Div. (N. Y.) 428; s.

956 (negligence of a foreman in c. 65 N. Y. Supp. 136; McKlnnon

charge of the construction of a v. Norcross, 148 Mass. 533; s. c.

scaffolding, in choosing, from a 3 L. R. A. 320; 20 N. E. Rep. 183;

suitable supply for the purpose, an Kelly v. New Haven Steamboat Co.,

unsuitable plank); Thomas v. Ann J 4 Conn. 343; s. c. 50 Atl. Rep. 871

Arbor R. Co., 114 Mich. 59; s. c. (mate of vessel failed to use fender

4 Det. Leg. N. 485; 72 N. W. Rep. which ship-owner had furnished, by

40; Manning v. Manchester Mills, reason of which the hawser slipped

70 N. H. 582; s. c. 49 Atl. Rep. 91; and a deck-hand trying to make the

Rosa v. Volkening, 64 App. Div. boat fast to the pier was injured. —

(N. Y.) 426; s. c. 72 N. Y. Supp. the test as to whether such mate

236 (plaintiff injured by negligence was a vice-principal being whether


Digitized by LjOOQLC


§ 4853. Application of the Rule as to Proximate and Remote Cause
to Injuries by Fellow Servants. — We may start out with the premise
that in order to a recovery of damages from the master the proxi-
mate cause of the injury must have been one for which the master
was responsible, and not the mere negligence of a fellow servant.
Thus, where a collision of a switch-engine with a railway-train was
caused by the negligence of a brakeman in handling the switch, and
the water-tank of an engine, insufficiently secured to withstand the
shock of the collision, or defectively secured, was thereby thrown
forward upon a brakeman riding on the engine, — the proximate cause
of the injury was deemed to have been the negligence of a fellow
servant, thus preventing a recovery. 20 The failure of one servant
to start a machine was not deemed the proximate cause of an injury
•to his fellow servant, the plaintiff, where, upon his failure to start
the machine, the foreman started it and warned the plaintiff to
look out for some cogwheels at the end, but the plaintiff was never-
theless injured by the cogwheels while attempting, without or-
ders, to tighten some wedges in the sideboard of the machine after
calling out to the foreman that they were loose. 21 The injury re-
ceived by an inexperienced man, who was directed by the person
whose orders he was required to obey, to start an engine which had
stopped upon the center, by prying the flywheel over with an iron
bar, from the engine starting quickly under great pressure of steam,
and catching him on the bar and throwing him into the gearing, —
was held to have arisen directly and proximately from his obedience
to the order and direction of such person, and not from the action
of another workman in opening the throttle-valve so as to let on the
full force of the steam, where there was evidence tending to show that
the person in charge knew, or by the exercise of ordinary care might
have known, of the valve being open and of the hazard to such em-
ploy^ attempting the operation. 22 If the proximate cause of an in-
jury to an employ6 is his contributory negligence, mingled with the
negligence of a co-employ6, he cannot recover damages from the
common master, because he could not recover them if he himself had
not been guilty of contributory negligence, the cause of the injury

the duty violated was one resting on " Vizelich v. Southern Pac. Co.,

the master; and the conclusion be- 126 Cal. 587; s. c. 59 Pac. Rep. 129.

ing that the master was under no M McGuerty v. Hale, 161 Mass.

duty to see that appliances which he 51; s. c. 36 N. E. Rep. 682.

had furnished were used). Compare a Gartside Coal Co. v. Turk, 147

Lake Shore &c. R. Co. v. Corcoran, 111. 120; s. c. 35 N. B. Rep. 467;

14 Ohio C. C. 377; s. c. 6 Ohio C. D. aff'g s. c. 47 111. App. 332.
773; 3 Ohio Dec. 641; Wiggins Fer-
ry Co. v. Heilig, 43 111. App. 238.


Digitized by LjOOQ IC

4 Thomp. Neg.] the fellow-servant doctrine.

being the negligence pi a fellow servant merely. 28 As elsewhere
shown, 24 where the /negligence of the master commingles in producing
the accident, the master is liable because his negligence was one of
the proximate or efficient causes of the injury. Thus, a railroad
company is liable for injuries received by a brakeman while perform-
ing his duty of keeping a passenger off the step of a car, by being
struck by a train upon another track, at a curve where the tracks
were too close together for the safe passage of trains, although the
engineer of one of the trains was negligent in undertaking to pass
at that point. 25 On obvious grounds, an employ^ cannot recover
damages for an injury shown to have been caused by one of several
of His fellow servants, where it is not shown which one of them caused
the injury. 26

§ 4854. Doctrine that Servant does Not Assume the Bisk of Ex-
traordinary Dangers from Negligence of Fellow Servants. — In two or
three jurisdictions the rule is encountered that while a servant ordi-
narily assumes the risk of injury from the negligence of his fellow
servants, yet this rule is not applicable to cases where he is exposed
by the master to extraordinary dangers from such negligence under
conditions created after his employment, without notice to him
of such dangerous conditions. 27 Following this supposed principle,
it has been held that an employ^ who is given charge of dangerous
instruments, such as dynamite, represents his master in the care and
custody thereof, and is not a fellow servant; and hence the master
is liable for injuries to employ6s through such servant's negligence in
the care of such articles. 28

* Alabama ftc. R. Co. v. Roach, low servants taking down trestle

110 Ala. 266; s. c. 20 South. Rep. under which servant was working,

132 (car inspector going under a unknown to him; master liable for

car at night when cars were being injury to servant caused by their

switched in the yards, failed to set negligence in taking it down);

out signals, or give notice that he Burke v. Anderson, 16 C. C. A.

was under the car; switch-foreman 442; s. c. 69 Fed. Rep. 814; 34 U.

ran cars against car under which S. App. 132 (plaintiff, lnexperi-

plaintiff was at work without giv- enced in the use of dynamite or in

ing any signal— no recovery). the work where it was used, was

a * Post, § 4856, et seq. set to digging at a place where a

M Mulvaney v. Brooklyn City R. blast had been negligently con-
Co., 1 Misc. (N. Y.) 425; s. c. 49 * ducted, without informing him of

N. Y. St. Rep. 637; 21 N. Y. Supp. the peril; master liable to him for

427; s. c. aft'd, 142 N. Y. 651. an injury caused by his pick strik-

"Kemmerer v. Manhattan R. Co., ing an unexploded charge).

81 Hun (N. Y.) 444; s. c. 63 N. Y. '"Rush v. Spokane Falls &c. R.

St. Rep. 323; 31 N. Y. Supp. 82. Co., 23 Wash. 501; s. c. 63 Pac.

87 Northwestern Fuel Co. v. Dan- Rep. 500 (following Allen v. Spo-

ielson, 57 Fed. Rep. 915; s. c. 6 C. kane Falls &c. R. Co., 21 Wash.

C. A. 636; 12 U. S. App. 688 (fel- 324; s. c. 58 Pac. Rep. 244).


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[2d Ed.

Article II. Negligence of Master or his Representative,
Concurring with Negligence op Fellow Servant.


4856. If negligence of master min-

gles with that of fellow
servant, master liable.

4857. Further of the effect of neg-

ligence of fellow servant
combined with negligence
of master.

4858. Negligence of master in fur-

nishing dangerous prem-
ises, machinery, tools, or
appliances, commingling
with that of fellow servant
— Master liable.

4859. Negligence of master in se-

lecting unfit servants, com-
mingling with negligence
of fellow servant


4860. Negligence of master in fail-

ing to provide sufficient
servants, commingling with
negligence of fellow serv-

4861. Negligence of vice-principal

commingling with that of
fellow servant — Master lia-

4862. Negligence of foreman con-

curring with that of fellow

4863. Always assuming that the

negligence of the master Is
a proximate cause of the in-

§4856. If Negligence of Master Mingles with that of Fellow
Servant, Master Liable. — On a principle already considered, 1 if the
negligence of the master, or of one for whose conduct the master is
answerable, mingles with that of one who stood in the relation of a
fellow servant to the servant receiving the injury; and if the neg-
ligence of the master or his representative was a proximate or effi-
cient cause of the injury, the master will be liable, and will not be
allowed to escape liability on the ground that the injury also pro-
ceeded from the negligence of one for whose conduct he was not
answerable. 2 A different statement of the doctrine is to say that in

1 Vol. 1, $ 75.

*Fisk v. Central ftc. R. Co., 72
Cal. 38; s. c. 13 Pac. Rep. 144; Den-
ver ftc. R. Co. v. Sipes, 26 Colo. 17;
8. c. 55 Pac. Rep. 1093; 5 Am. Neg.
Rep. 305; Norris v. Illinois Cent
R. Co., 88 111. App. 614; Swift ft
Co. v. O'Neill, 88 111. App. 162; s.
c. aff'd, 187 111. 337; 58 N. E. Rep.
416; Chicago ftc. R. Co. v. Gillison,
173 111. 264; s. c. 50 N. E. Rep. 657;
64 Am. St Rep. 117; aff'g s. c. 72
111. App. 207; Swift ft Co. v. Rut-
kowski, 82 111. App. 108; s. c. aff'd,
182 111. 18; 54 N. E. Rep. 1038;
Illinois Cent. R. Co. v. Johnson, 95
111. App. 54; s. c. aff'd, 191 111. 594;
61 N. E. Rep. 334 (master held lia-

ble where his negligence mingles
with that of fellow servant, and
neither standing alone is the effi-
cient cause); Louisville ftc. R. Co.
v. Heck, 151 Ind. 292; s. c. 11 Am.
ft Eng. R. Cas. (N. S.) 382; 50 N.
E. Rep. 988; Rogers v. Leyden, 127
Ind. 50; s. c. 26 N. E. Rep. 210;
Pugh v. Chesapeake ftc. R. Co., 101
Ky. 77; s. c. 19 Ky. L. Rep. 149;
8 Am. ft Eng. R. Cas. (N. S.) 303;
2 Am. Neg. Rep. 159; 39 S. W. Rep.
695; Faren v. Sellers, 39 La. An.
1011; s. c. 3 South. Rep: 363; My-
ers v. Hudson Iron Co., 150 Mass.
125; s. c. 22 N. E. Rep. 631; Drom-
mie v. Hogan, 153 Mass. 29; s. c.
26 N. E. Rep. 237; Cayzer v. Tay-


Digitized by


4 Thomp. Neg.] the fellow-servant doctrine.

order to relieve the master froin liability for an injury to one of his
servants, the negligence of a fellow servant must have been the sole

lor, 10 Gray (Mass.) 274; Hunn v.
Michigan ftc. R. Co., 78 Mich. 513;
s. c. 44 N. W. Rep. 502; 7 L. R. A.
500; 41 Am. ft Eng. R. Gas. 452;
Delude v. St Paul City R. Co., 55
Minn. 63; s. c. 56 N. W. Rep. 461;
Olson v. St. Paul ftc. R. Co., 34
Minn. 477; Franklin v? Winona ftc.
R. Co., 37 Minn. 409; s. c. 5 Am.
St Rep. 856; 34 N. W. Rep. 898; De-
weese v. Meramec Iron Min. Co., 128
Mo. 423; s. c.31 S. W.Rep.110; aff'g
s. c. 54 Mo. App. 476; Browning v.
Wabash ftc. R. Co., 124 Mo. 55; s. c.
27 S. W. Rep. 644; aff'g s. c. 24 S.
W. Rep. 731; Young v. Shickle ftc.
Iron Co., 103 Mo. 324; s. c. 15 S.
W. Rep. 771; Craig v. Chicago ftc.
R. Co., 54 Mo. App. 523; Bluedorn
v. Missouri ftc. R. Co., 108 Mo. 439;
s. c. 18 S. W. Rep. 1103 (running
train by time-card, at prohibited
speed); Irmer v. St Louis Brew.
Co., 69 Mo. App. 17 1 Bllingson v.
Chicago ftc. R. Co., 60 Mo. App.
679; s. c. 1 Mo. App. Repr. 298;
Cole v. Warren Man. Co., 63 N. J.
L. 626; s. c. 44 Ati. Rep. 647; Paul-
mier v. Brie R. Co., 34 N. J. L. 151;
Lutz v. Atlantic ftc. R. Co., 6 N.
Mex. 496; s. c. 16 L. R. A. 819; 53
Am. ft Eng. R. Cas. 478; 30 Pac.
Rep. 912; Whittaker v. Delaware ftc.
Canal Co., 49 Hun (N. Y.) 400 (un-
less the accident would not have
happened without the master's neg-
ligence) ; Crowell v. Thomas, 90 Hun
(N. Y.) 193; s. c. 70 N. Y. St Rep.
651; 35 N. Y. Supp. 936; Busch v.
Buffalo Creek R. Co., 29 Hun (K.
Y.) 112; Bryant v. New York ftc.
R. Co., 81 Hun (N. Y.) 164; s. c.
62 N. Y. St. Rep. 670; 30 N. Y.
Supp. 737; Tetherton v. United
States Talc. Co., 165 N. Y. 665; s.
c. 59 N. E. Rep. 1131; aff'g 8. c. 41
App. Div. (N. Y.) 613; 58 N. Y.
Supp. 55; Bennett v. Long Island
R. Co., 21 App. Div. (N. Y.) 25;
s. c. 47 N. Y. Supp. 258; Warn v.
New York ftc. R. Co., 80 Hun (N.
Y.) 71; s. c. 61 N. Y. St Rep. 585;
29 N. Y. Supp. 897; Ring v. Cohoes,
77 N. Y. 83; Auld v. Manhattan
Life Ins. Co., 165 N. Y. 610; s. c.
58 N. E. Rep. 1085; aff'g s. c. 54
N. Y. Supp. 222; 34 App. Div. (N.
Y.) 491; Hollingsworth v. Long
Island R. Co., 91 Hun (N. Y.) 641;


s. c. 36 N. Y. Supp. 1126; 70 N. Y.
St Rep. 903; Coppins v. New York
ftc. R. Co., 122 N. Y. 557; s. c. 34
N. Y. St Rep. 214; 44 Am. ft Eng.
R. Cas. 618; 19 Am. St Rep. 523; 25
N. E. Rep. 915; aff'g s. c. 48 Hun
(N. Y.) 292; 17 N. Y. St Rep. 916;
Donahue v. Brooklyn ftc. R. Co., 38
N. Y. St. Rep. 485; s. c. 14 N. Y.
Supp. 639; Booth v. Boston ftc. R.
Co., 73 N. Y. 38; Crutchfield v.
Richmond ftc. R. Co., 76 N. C. 320;
Kaiser v. Flaccus, 138 Pa. St 332;
8. c. 22 Atl. Rep. 88; Louisville ftc.
R. Co. v. Kenley, 92 Tenn. 207;
s. c. 21 S. W. Rep. 326; Illinois ftc.
R. Co. v. Spence, 93 Tenn. 173; s.
c. 23 S. W. Rep. 211 (railway com-
pany liable for an injury to an em-
ploye caused by the negligence of
its engineer, if the negligence of
the conductor, representing the
company, materially contributed
thereto); St Louis ftc. R. Co. v.
McClain, 80 Tex. 85; s. c. 15 S. W.
Rep. 789; International ftc. R. Co.
v. Bonatz (Tex. Civ. App.), 48 S.
W. Rep. 767 (no off. rep.) ; Gulf ftc.
R. Co. v. Warner (Tex. Civ. App.),
36 S. W. Rep. 118 (no off. rep.);
Houston ftc. R. Co. v. Kelley (Tex.
Civ. App.), 35 B. W. Rep. 878 (no
off. rep.) ; Texas ftc. R. Co. v. Mau-
pin (Tex. Civ. App.), 63 S. W. Rep.
346 (no off. rep.); Hamilton v.
Galveston ftc. R. Co., 54 Tex. 556
(railroad company employing
minor without consent of parent
liable to parent for injury through
negligence of his co-employes);
Sincere v. Union Compress ftc. Co.
(Tex. Civ. App.), 40 S. W. Rep.
326 (no off. rep.); Missouri ftc. R.
Co. v. Rains (Tex. Civ. App.), 40
S. W. Rep. 635 (no off. rep.); Texas
ftc. R. Co. v. Eberhart (Tex. Civ.
App.), 40 S. W. Rep. 1060 (no off/
rep.); s. c. aff'd, 91 Tex. 321; 43
S. W. Rep. 510; Missouri ftc. R. Co.
v. Ferch, 18 Tex. Civ. App. 46; a
c. 44 S. W. Rep. 317; Pool v. South-
ern Pac. R. Co., 20 Utah 210; 8. c.
58 Pac. Rep. 326; Wright v. South-
ern Pac. R. Co., 14 Utah 383; a. c.
46 Pac. Rep. 374; 5 Am. ft Eng.
R. Cas. (N. S.) 559; Handley v.
Daly Min. Co., 15 Utah 176; s. c.
49 Pac. Rep. 295; Jenkins v. Mam-
moth Min. Co., 24 Utah 513; s. c.

Digitized by



[2d Ed.

cause of the injury, and not commingled or combined with the negli-
gence of the master or of his representative. 8 .,

§4857. Further of the Effect of Negligence of Fellow Servant
Combined with Negligence of Master. — The reason of this rule is, that
while the servant impliedly agrees to take the risk of negligence on the
part of fellow servants, which the master cannot prevent, he does not
impliedly agree to take the risk of any negligence on the part of the

68 Pac. Rep. 845 (the Injured serv-
ant assumes the risk of the negli-
gence of a fellow servant, but not
that of the master) ; ' Morrisey v.
Hughes, 65 Vt 553; s. c. 27 Atl.
Rep. 205; Richmond ftc. R. Co. v.
George, 88 Va. 223; 8. c. 15 Va. L.
J. 625; 13 S. E. Rep. 429; Balti-
more ftc. R. Co. v. McKenzie, 81
Va. 71; Norfolk ftc. R. Co. v.
Phelps, 90 Va. 665; s. c. 19 S. B.
Rep. 652 (negligence of yardmas-
ter, who was vice-principal of rail-
way company, resulting in injury
to engine-hostler, made company
liable although the negligence of a
brakeman contributed to the in-
jury); Norfolk ftc. R. Co. v. Phil-
lips, 100 Va. 362; s. c. 41 S. B. Rep.
726; Lago v. Walsh, 98 Wis. 348;
s. c. 74 N. W. Rep. 212; Cowan v.
Chicago ftc. R. Co., 80 Wis. 284;
s. c. 50 N. W. Rep. 180; Grand
Trunk R Co. v. Cummings, 106 U.
S. 700; s. c. 27 L. ,ed. 266; Brown
v. Coxe, 75 Fed. Rep. 689; North-
ern R. Co. v. Poirier, 67 Fed. Rep.
881 (provided the accident would
not have happened had not the
master himself been negligent);
New Jersey ftc. R. Co. v. Young,
49 Fed. Rep. 723; s. c. 1 U. S. App.
96; Mexican ftc. R. Co. v. Glover,
107 Fed. Rep. 356; s. c. 46 C. C.
A. 334 (negligence of railway com-
pany in ordering two trains to
meet at a certain place, concurring
with the negligence of fellow serv-
ants, the conductor and engineer
of one of the trains, in operating
it without lights); Clyde v. Rich-
mond ftc R. Co., 59 Fed. Rep. 394;
Union Pac. R Co. v. Callaghan, 56
Fed. Rep. 988; s. c. 6 C. C. A. 205
(master liable where his negli-
gence is a proximate cause of the in-
jury) ; Pullman's Palace Car Co. v.
Harkins, 55 Fed. Rep. 932; s. c. 5

C. C. A. 326; Crew v. St Louis ftc.
R. Co., 20 Fed. Rep. 87; Felton v.
Harbeson, 104 Fed. Rep. 737; s. c.
44 C. C. A. 183 (where the negli-
gence of a vice-principal was a
proximate contributing cause, al-
though the negligence of a fellow
servant also contributed to the ac-
cident); Quebec S. S. Co. v. Mar-
chant, 133 U. S. 375; s. c. 33 L. ed.
656; 7 Rail, ft Corp. L. J. 432; 10
Sup. Ct Rep. 397; Young v. New
Jersey ftc. R. Co., 46 Fed. Rep. 160;
Killien v. Hyde, 63 Fed. Rep. 172
(negligence of owner of tug in
leaving his post in a difficult situ-
ation and substituting a deck-hand
in his place at the wheel, whereby
a collision occurred, rendered him
liable although the man he put at
the wheel, a fellow servant of the
fireman killed, was also at fault);
Terre Haute ftc. R. Co. v. Mans-
berger, 65 Fed. Rep. 196; s. c. 12
C. C. A. 574; rehearing denied,. 67
Fed. Rep. 67 (negligence of car-in-
spector mingled with that of the
engineer, injuring a brakeman);
Northwestern Fuel Co. v. Daniel-
son, 57 Fed. Rep. 915; s. c. 6 C. C.
Af 636 (superintendent ordering
trestle-work to be torn down with-
out notifying the men working un-
der it that it is to be done, — master,
liable, although the negligence of
a foreman, who was a fellow' serv-
ant of the men, contributed also to
the injury); The Anchoria, 113
Fed. Rep. 982.

•Deweese v. Meramec Iron Mln.
Co., 128 Mo. 423; s. c. 31 S. W.
Rep. 110. Liability of master for
standing by and seeing a negligent
and dangerous act about to be com-
mitted, and failing to object or op-
pose: Cannon v. Mears, 7 Kulp
(Pa.) 281; s. c. 11 Lane. L. Rep.


Digitized by


4 Thomp. Neg.] the fellow-servant doctrine.

master. 4 This happens where the negligence of the master in fur*
nishing defective machinery or appliances, or an insufficient force
of co-laborers, combines with the negligence of the servant whose
duty it is to oversee and use the particular machinery, whereby an-
other servant is injured; 5 or where the negligence of the master in
selecting an incompetent servant combines with the negligence of
such servant; 6 or where the negligence of a railway company in not
furnishing a sufficient number of brakemen for the manning of a
train combines with the negligence of a particular servant in start-
ing the train while thus insufficiently manned. 7 It is necessarily a
part of this rule that the master is liable to his servant for injury
resulting from a defect in his machinery, appliances, etc., which the
master could have discovered and prevented by the exercise of reason-
able care, although the negligence of a fellow servant contributes
* to the accident produced by such a defect. 8 Referring to some (but
not all) of the duties of the master, the doctrine has been stated by
saying that the exemption from liability on the part of a master for
injuries visited upon one servant by the negligence of another serv-
ant,, engaged in a common service, is permitted only when the master
has exercised reasonable care to furnish a reasonably safe place for
the injured servant to work in, and to provide safe tools and appli-
ances for doing the work, and has used proper diligence in the hiring
of reasonably safe and competent men to perform their respective
duties, and (in the case of railway service) has adopted and promul-
gated proper rules for the conduct of the business. 9

4 "The servant does not agree to
take the chances of any negligence
on the part of his employer; and
no case has gone so far as to hold
that where such negligence contrib-
utes to the injury the servant may
not recover. It would be both un-
just and impolitic to suffer the mas-
ter to evade the penalty of his mis-
conduct in neglecting to provide
for ' the security of his servant.
Contributory negligence, to defeat
a right of action, must be negli-
gence of the party injured": Beas-
ley, C. J., in Paulmier v. Erie R.
Co., 34 N. J. L. 151, 155.

8 Cayzer v. Taylor, 10 Gray
(Mass.) 274; Paulmier v. Brie R.
C* , 34 N. J. L. 151. In this latter
case, the track over a trestle-work
was not capable of supporting an
engine, and the engineer in charge
had orders not to put the engine
thereon, but disobeyed orders, and
a fireman who was on the engine,


and who was unaware of the orders
or of the danger, was killed in con-
sequence of the trestle-work giving
way. It was held a case for dam-

8 Case put by Reade, J., in Crutch-
field v. Richmond &c. R. Co., 76
N. C. 323.

7 Booth v. Boston &c. R. Co., 73 N.
Y. 38. Compare Hayes v. Western
R. Co., 3 Cush. (Mass.) 270, which
case, ki Cayzer v. Taylor, supra, is
said by Thomas, J., to proceed upon
the ground that the injury was
caused by the negligence of a work-
man, — his failure to be in his place
and discharge his duty, — so that
the fact that the train was short
of hands was wholly immaterial.

8 Cayzer v. Taylor, 10 , Gray
(Mass.) 274.

•Bosworth v. Rogers, 82 Fed.
Rep. 975; s. c. 53 U. S. App. 620;
27 C. C. A. 385.

Digitized by



[2d Ed.

§ 4858. Negligence of Master in Furnishing' Dangerous Premises,
Machinery, Tools, or Appliances, Commingling with that of Fellow
Servant — Master Liable. — It is merely to state an illustration of the
doctrine of the preceding section to say that where the master fails
in his duty to the injured servant of furnishing safe premises, ma-
chinery, tools, or appliances, and this failure is a proximate cause
of the injury, the fact that the negligence of a fellow servant also
commingles with it as a proximate or efficient cause will not exoner-
ate the master from liability. 10 Cases abound furnishing apt illus-

"Keast v. Santa Tsabel Gold
Min. Co., 136 Cal. 256; 8. o. 68 Pac.
Rep. 771; Savannah &c. R. Co. v.
Pughsley, 113 Ga. 1012; s. c. 39 S.
E. Rep. 473 (master furnished a
defective tool to servant, and a fel-
low servant was injured in conse-
quence of the defect, and of the
negligence of the servant in using
the tool, — master liable) ; Pullman's
Palace Car Co. v. Laack, 143 111.
242; s. c. 18 L. R. A. 215; 32 N. B.
Rep. 285 (failure of master to pro-
vide adequate means for cutting off
the flow of burning oil, commingled
with negligence of fellow servant
in failing to cut off the supply with
the means provided) ; Union Shoe
Case Co. v. Blindauer, 75 111. App.
358; s. c. aff'd, 175 111. 325; 51 N.
E. Rep. 709 (injury from the fall of
an elevator through its defective
construction, commingled with the
negligence of a co-employ6); Ohio
Ac. R. Co. v. Stein, 140 Ind. 61;
s. c. 39 N. E. Rep. 246 (defective
brake, commingled with negligence
of fellow trainmen) ; Hancock v.
Keene, 5 Ind. App. 408; s. c. 32 N.
E. Rep. 329 (unsafe place in which
to work, commingled with negli-
gence of fellow servant) ; Stucke v.
Orleans R. Co., 50 La. An. 172; s.
c. 23 South. Rep. 342 (failure to
provide reasonably safe place to
work, commingled with negligence
of fellow servant) ; Johnson v.
Field-Thurber Co., 171 Mass. 481;
s. c. 51 N. E. Rep. 18 (master fur-
nished no guards for trap-door in a
passageway of a building; fellow
servant left the trap-door open and
plaintiff fell through it and was in-
jured — master liable) ; Tvedt v.
Wheeler, 70 Minn. 161; s. c. 72 N.
W. Rep. 1062 (failure of master to
perform a statutory duty, commin-
gled with negligence of fellow serv-

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