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Commentaries on the law of negligence in all relations online

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incompetency of a locomotive-en- 62 Tex. 597.

gineer). "Corson v. Maine Cent. R. Co.,

38 Snodgrass v. Carnegie Steel Co., 76 Me. 244 (ttie same witness that
173 Pa. St 228; s. c. 37 W. N. C. testified he was slow and lazy, also
(Pa.) 544; 33 Atl. Rep. 1104; 27 testified that "he was always care-
Pitts. L. J. (N. S.) 37. ful about his work").

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

a switchman on the statement of the yardmaster of another company
that he had one that he was done with and whom the former yard-
master could have, about an hour before an accident to a fellow
servant occasioned in part by the negligence of such switchman. 4 *

§ 4913. Evidence of Unfitness as Tending to Show that the Partic-
ular Servant did the Mischief. — It has been held that, to entitle a
servant to recover from the master for an injury on the ground that
it resulted from the negligence of an incompetent fellow servant, for
•whose employment or retention in the service the defendant was
chargeable with negligence, it must be definitely shown that it was
in fact the negligence of such person which caused the injury; and
proof which goes no further than to show his known incompetency, or
that the act of negligence was committed either by him or by another
fellow servant, does not warrant an inference that the negligence was
his, and is insufficient to fix liability on the defendant. 4 *

§ 4914. Effect of Certificate of Competency Given by Public Ex-
aminers. — A certificate of competency given to an engineer by the
State board of mine examiners is not conclusive as to his competency,
as between his employer and another employ^, notwithstanding the
law prohibits a mine-owner from employing a hoisting-engineer not
having such a certificate. 45

"Ohio Ac. R. Co. v. Dunn, 138
Ind. 18; s. c. 36 N. B. Rep. 702;
37 N. B. Rep. 546. In an action
by an administrator to recover
damages from a railroad company
for the killing of H., a fireman,
through B.'s misplacing a switch,
B. being alleged to be an Incompe-
tent switchman, evidence that B.
had for three months preceding the
accident performed the duties with-
out fault or neglect, and was of or-
dinary Intelligence, was held to
warrant a finding that he was com-
petent; and his neglect to close the
switch being through inattention
while conversing, and not through
inability to perform his duties,
. plaintiff could not recover for re-
sults of the co-servant's negligence;
and this, though at the time of trans-
ferring B. to this duty, the company
had left only three employes, Includ-
ing B., to perform the work previ-
ously assigned to six, having dis-
charged the others, — this fact not
contributing to the accident: Har-
vey v. New York &c. R. Co., 88 N.
Y. 481; rev'g s. c. 25 Hun (N. Y.)
62. A finding in an action for per-
sonal injuries to an employe that

928



a fellow servant was incompetent,
that he was retained by defendant
after notice of such incompetency
an unreasonable length of time,
and that the accident was caused
by his suddenly opening a surface
blow-off valve of the boilers under
plaintiff's supervision, — is not a suffi-
cient finding that defendant's re-
tention of the incompetent employe^
was the proximate cause of the in-
jury; because that might all be
true, and yet the bursting of the
glass from such a cause might be
such an extraordinary occurrence
that it would not follow that, under
the circumstances, it reasonably
should have been foreseen. The -fact
of proximate cause was not found
by the jury; and the court erred
in not submitting a question call-
ing for this essential finding: Mait-
land v. Gilbert Paper Co., 97 Wis.
476; s. c. 72 N. W. Rep. 1124.

u Brady v. Western Union Tel.
Co., 113 Fed. Rep. 909; s. c. 51 C. C.
A. 539.

"Consolidated Coal Co. v. Seni-
ger, 179 111. 370; s. c. 53 N. E. Rep.
733; aff'g s. c. 79 111. App. 456.



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WHO ABE AND WHO ARE NOT FELLOW SERVANTS. [2d Ed.



CHAPTER CXXV.

WHO ABE AND WHO ARE NOT FELLOW SERVANTS WITHIN THIS
DOCTRINE.

Art. I. General Theories and Suggestions, §§ 4917-4921.
Art. II. Servants Appointed to Perform the Absolute and Unas-
signable Duties of the Master, §§ 4923-4935.
Art. III. Superior and Inferior Servants, §§ 4938-4966.

Article I. General Theories and Suggestions.

Section Section

4917. The general rule stated. * 4921. When master responsible for

4918. Theory of "dual relationship." acts of authority exercised

4919. Servants engaged in different by one servant over an-

grades of employment un- other, in directing or con-

dor a common master. trolling him.

4920. Notice to or knowledge of one

servant not imputable to a t

fellow servant.

§ 4917. The General Rule Stated. — The rule quoted by the great-
est number of adjudged cases is that all who serve a common master,
work under the same control, derive authority and compensation from
the same common source, and are engaged in the same general busi-
ness, though it may be in different grades or departments of it, are
fellow servants, who, under the rule under consideration, are deemed
to take the risk of each other's negligence. 1 It is said that subjection
to control and direction by the same general master in the same com-
mon object, and not the fact that employes are paid by the same gen-
eral master, is the test of fellow service. 2

1 Wonder v. Baltimore &c. R. Co., W. Va. 380; s. c. 2 Chic. L. J.

32 Md. 411, 417; s. c. 3 Am. Rep. Wkly. 300; 27 S. B. Rep. 278; 6

143; Parwell v. Boston &c. R. Co., Am. & Eng. R. Cas. (N. S.) 455;

4 Mete. (Mass.) 49; s. c. 2 Thomp. post §§ 4919, 4938, et seq.

Neg. (1st ed.), p. 924; Foster v. 'Ingram v. Hilton &c. Lumber

Minnesota &c. R.'Co., 14 Minn. 360; Co., 108 Ga. 194; s. c. 33 S. E. Rep.

Jackson v. Norfolk &c. R. Co., 43 961.

VOL. 4 THOMP. NEG. — 59 929



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

§4918. Theory of "Dual Relationship." — What has been some-
times called the "theory of dual relationship" with respect to the
fellow-servant doctrine, is that whether the servant through whose
■ negligence injury is inflicted upon another servant, is to be regarded
as a fellow servant of the injured servant or as a vice-principal of the
master, depends not upon the rank or grade of the servant inflicting
the injury, nor on the relative rank or grade of the two servants with
respect to each other, but upon the character of the act which the
servant inflicting the injury was doing at the time. If it was an
act of service, then, in jurisdictions where the fellow-servant doctrine
prevails, the master is not liable, although the servant inflicting the
injury may be, for general purposes, a representative of the master
and his alter ego or vice-principal ; but if it was an act of vice-princi-
paUhip, an act done in the discharge of some duty which the law
devolves primarily upon the master, and which is unalienable, then
the master will be liable, although the servant inflicting the injury
may be of the lowest grade in his service. Out of these considerations
springs what is called the "doctrine of dual relationship" of a servant.
The meaning is that the same servant may be, with respect to acts
of a certain kind, a fellow servant 'of the others, and with Tespect
to acts of another kind, a vice-principal of the master. Thus, the
negligence of one occupying generally the position of vice-prin-
cipal to servants employed under him, in failing to provide safe and
proper appliances, is chargeable to the master, although, in handling
such appliances, he may be a fellow servant. 8 So, although a foreman
of work is, so far as mere acts of service are concerned, generally
deemed a fellow servant of those working under him, yet so far as
concerns the master's duty of providing safe appliances, he is the
vice-principal of the master, and not a fellow servant of another
servant working under him. 4 So, an employ^, while running an en-
gine, is a fellow servant of another employ^ engaged in putting belts
upon pulleys on a shafting operated by the engine, especially where
the latter gives the signal to the engineer when to start and when to
stop, although the engineer is also foreman and has charge of the lat-
ter, and in some respects, e. g., the maintenance of the signal-appli-

'Gann v. Railroad Co., 101 Tenn. to work the pump, was the failure

380; s. c. sub nom. Nashville Ac. R. of the company, for which it was

Co. v. Gann, 47 S. W. Rep. 493. responsible: Stimper v. Fuchs &c.

*The failure of a company's fore- Man. Co., 26 App. Div. (N. Y.) 333;

man to secure a pump, which he s. c. 83 N. Y. St. Rep. 785; 49 N. Y.

knew was out of repair, so as to Supp. 785; 8. c. afTd, 161 N. Y. 636

prevent injury to an infant appren- (mem.); 57 N. B. Rep. 1125.
tice who was wrongfully directed

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WHO ARE AND WHO ARE NOT FELLOW SERVANTS. [2d Ed.

ance in a proper condition for the belt-adjuster's safety, is a vice-
principal of the latter. 5

§4919. Servants Engaged in Different Grades of Employment
under a Common Master. — The fact that the negligent servant, in his
grade of employment, is superior to the servant injured, does not, in
the opinion of most of the courts, take the case out of the rule ; they
are equally fellow servants, and the master is not liable. 6

§ 4920. Notice to or Knowledge of one Servant Hot Imputable to
a Fellow Servant. — From this it follows that, although one servant
may be compelled to suffer without redress for the negligence of a fel-
low servant, yet notice of a fact communicated to one servant, or
knowledge of a fact possessed by one servant, is not imputable to a
fellow servant in theory of law. Thus, where one servant is injured
in consequence of a defect" in an appliance which the master ought to
have discovered and remedied, the fact that a fellow servant knew of
the defect does not affect the rights of the injured servant, he not being
aware of it. T It is a part of this doctrine that the failure of a servant
having knowledge of a dangerous defect to report the fact to the mas-
ter, is not the kind of negligence of a fellow servant which is imputa-
ble to the servant injured. 8



"National Fertilizer Co. v. Trav-
is, 102 Tenn. 16; s. c. 49 S. W. Rep.
832.

"McLean v. Blue Point Gravel
Min. Co., 61 Cal. 255; Columbus Ac.
R. Co. v. Arnold, 31. Ind. 174; s. c.
99 Am. Dec. 615; Thayer v. St
Louis Ac. R. Co., 22 Ind. 26; s. c.
85 Am. Dec. 409, per Perkins, J.;
Lawler v. Androscoggin R. Co., 62
Me. 463; a. c. 16 Am. Rep. 492;
O'Connell v. Baltimore Ac. R. Co.,
20 Md. 212; s. c. 83 Am. Dec. 549;
Cumberland Coal Ac. Co. v. Scally,
27 Md. 589; Shauck v. Northern Ac.
R. Co., 25 Md. 462; O'Connor v.
Roberts, 120 Mass. 227; Albro v.
Agawam Canal Co., 6 Cush. (Mass.)
75; McGowan v. St. Louis Ac. R.
Co., 61 Mo. 528; Daubert v. Pickel,
4 Mo. App. 590; Faulkner v. Erie
R. Co., 49 Barb. (N. Y.) 324; Le-
high Valley Coal Co. v. Jones, 86
Pa. St. 432; Conway v. Belfast Ac.
R. Co., I. R. 9 C. L. 498; Murphy
v. Smith, 19 C. B. (N. S.) 361; s.
c. 12 L. T. (N. S.) 605; Allen v.
New Gas Co., 1 Exch. Div. 251;
Howells v. Landore Siemens Steel



Co., L. R. 10 Q. B. 62; s. c. 44 L. J.
(Q. B.) 25; 32 L. T. (N. S.) 19; 23
Week. Rep. 335; 31 L. T. (N. S.)
433; Gallagher v. Piper, 16 O. B.
(N. S.) 669; Feltham v. England,
L. R. 2 Q. B. 33; rev'g s. c. 4 Fost.
A Fin. 460; Wilson v. Merry, L. R.
1 H. L. Sc. App. 326. See also cases
cited 1th explanations, post, § 4938,
et 8eq. Contra: Louisville Ac. R. Co.
v. Collins, 2 Duv. (Ky.) 114; s. c.
87 Am. Dec. 486, where it was ruled
that a railway-engineer and a com-
mon laborer were not fellow serv-
ants within the rule.

T Illinois Cent. R. Co. v. Swisher,
61 111. App. 611. See also, Richard-
son v. Cooper, 88 111. 270 (notice of
a defect given to a fellow servant,
superintendent of another branch
of the work, not imputable to the
Injured servant) ; Illinois Ac. R. Co.
v. Pirtle, 47 111. App. 498 (brake-
man not chargeable with knowl-
edge of the defective condition of
the wheels of the tender because
the engineer, who is a fellow serv-
ant, has notice of it).

"Monmouth Min. Ac. Co. v. JSr-

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

§ 4921. When Master Responsible for Acts of Authority Exercised
by One Servant over Another in Directing or Controlling Him. — In

some jurisdictions acts of authority exercised by the authorization of
the master by one servant over another are deemed the acts of the
master, and not those of a fellow servant ; 9 but the conclusion is dif-
ferent where they are engaged in a common employment. 10 But it
seems that the authorized power of one servant to control the actions
of the others will not render the common master liable for his negli-
gence whereby one of the others is injured, unless the negligence arises
out of and is the direct result of the exercise of such authority: if it
is a mere act of fellow service, the master will not be liable. 11

Article II. Servants Appointed to Perform the Absolute and
. Unassignable Duties of the Master.



Section

4923. Grade or rank of servant not

the controlling test, but the
test is the character of the
act.

4924. Servant charged with the pri-

mary or absolute duties of
the master is a vice-princi-
pal and not a fellow serv-
ant.

4925. Provided the injury results

from the negligent . dis-
charge of those duties, and
not from a mere act of fel-
low service.

4926. Of this nature is the duty of

inspection and repair.

4927. Duty of inspection a positive

and non-assignable duty.

ling, 148 111. 521; s. c. 39 Am. St
Rep. 187; 36 N. E. Rep. 117; aff'g
s. c. 45 111. App. 411. But see Atchi,
son &c. R. Co. v. Martin, 7 N. M.
158; s. c. 34 Pac. Rep. 536 (knowl-
edge possessed by the foreman of
section-men of the existence of a
rule of the company, the violation
of which caused the injury, imput:
able to the injured man, although
he was ignorant of it). Compare
Covey v. Hannibal &c. R. Co., 27
Mo. App. 170 (where a contrary
conclusion was reached).

•Consolidated Coal Co. v. Worn-
bacher, 134 111. 57; s. c. 24 N. E.
Rep. 627 (negligent exercise of au-

932



Section

4928. Master cannot devolve this

duty upon others, so as to
exonerate himself.

4929. Fellow servant charged with

this duty becomes a vice-
principal of the master.

4930. Master not exonerated from

the performance of suci
duties by the employment
of competent servants' or
agents to perform them.

4931. Negligence of independent

contractor with respect to
such duties is negligence of
master.



thority by "pit-boss" in coal mine,
causing injury to a laborer in the
mine).

10 Klochinski v. Shores Lumber
Co., 93 Wis. 417; s. c. 67 N. W. Rep.
934.

11 Chicago &c. R. Co. v. Touhy, 26
111. App. 99 (switchman injured
through negligence of engineer in
carrying out alleged negligent or-
der of foreman of switching-gang,
the order being given as that of a
fellow servant, and not as that of
a representative of the master, and
the engineer being under no duty
to obey such order implicitly).



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WHO ARE AND WHO ARE. NOT FELLOW SERVANTS. [2d Ed.



Section

4932. Negligence of master in fail-

ing to perform a non-assign-
able duty commingling with
negligence of fellow serv-
ant — Master liable.

4933. Various applications of the

foregoing doctrine.



Section

4934. Decisions which exonerate

the employer, where he em-
ploys suitable agents to per-
form such duties.

4935. Liability of employer for neg-

ligence of servant employed
to warn and instruct other
servants.



§ 4923. Grade or Rank of Servant Hot the Controlling Test, but
the Test is the Character of the Act. — It must be carefully borne in
mind that the comparative grade or rank of the servant inflicting
the injury and of the servant receiving the injury is not the con-
trolling test by which to determine whether or not the master is lia-
ble, but it is the character of the negligent act or omission; so that
when a servant of whatever grade or rank in the service, even the
lowest, is charged by the master with the performance of duties in
favor of his other servants which the law requires the master to per-
form, to the end of promoting their safety, and such servant, while
in the performance of those duties, inflicts a negligent injury upon
another servant, the master will be answerable in damages for it on
the ground that the servant inflicting the injury is his vice-princi-
pal, and not a fellow servant with the one receiving the injury. 1



1 Davis v. Southern Pac. Co., 98
Cal. 19; s. c. 35 Am. St. Rep. 133;
32 Pac. Rep. 708 (under a statute
which was held to prescribe the
same test) ; McEUigott v. Randolph,
61 Conn. 157; s. c. 29 Am. St. Rep.
181 (master liable for negligence
of a foreman over unskilled men
in leaving them to do work alone
that required supervision, whereby
a workman was injured through se-
lecting an insufficient appliance);
Robertson v. Chicago &c. R. Co.,
146 Ind. 486; s. c. 45 N. E. Rep.
655; 6 Am. & Eng. R. Cas. (N. S.)
611 (test is not the difference of
rank or even the power to control
or to employ and discharge) ; Ker-
ney v. Baltimore &c. R. Co., 149
Ind 21; s. c. 9 Am. & Eng. R. Cas.
(N. S.) 328; 48 N. E. Rep. 364;
New Pittsburg Coal &c. Co. v. Pe-
terson, 136 Ind. 398; s. c. 35 N. E.
Rep. 7; 43 Am. St. Rep. 327; Peirce
v. Oliver, 18 Ind. App. 87; s. c. 47 N.
E. Rep. 485; Stucke v. Orleans R.
Co., 50 La. An. 172; s. c. 23 South.
Rep. 342 (negligent failure of fore-
man to perform duty owing by the



master is not imputable to a serv-
ant injured by reason thereof) ;
Small v. Allington &c. Man. Co., 94
Me. 551; s. c. 48 Atl.Rep.177 (hold-
ing that the master's liability to
one servant for the negligence of
another in no way depends upon
the superior rank of the negligent
servant); Dube v. Lewlston, 83
Me. 211; Harrison v. Detroit &c. R.
Co., 79 Mich. 409; s. c. 7 L. R. A.
623; 19 Am. St. Rep. 180 (but the
case was decided against the em-
ployer on the ground that the neg-
ligent servant had full control and
authority over a distinct depart-
ment or division of. the business) ;
Carlson v. Northwestern Teleph.
&c. Co., 63 Minn. 428; s. c. 2 Am.
& Eng. Corp. Cas. iN. S.) 675; 65
N. W. Rep. 914; Lindvall v. Woods,

41 Minn. 212; s. c. 4 L. R. A. 793;

42 N. W. Rep. 1020; Kelley v. Cable
Co., 7 Mont. 70; s. c. 14 Pac. Rep.
633; Loughlin v. State, 105 N. Y.
159; s. c. 11 N. E. Rep. 271 (char-
acter of act determines the rela-
tion) ; Kain v. Smith, 25 Hun (N.
Y.) 146; Tendrup v. John Stephen-

933



Dio., 146 Mass. 586; s.
c. 4 Am. St Rep. 348; Kelley v.
Norcross, 121 Mass. 508 (but where
master has furnished suitable and
safe materials, he is not liable for
their negligent use) ; Ford v. Fitch-
burg R. Co., 110 Mass. 240; s. c.
14 Am. Rep. 598; Sadowski v. Mich-
igan Car Co., 84 Mich. 100; s. c. f 47
N. W. Rep. 598 (negligence of a per-
son employed to lay a water-pipe
in a ditch through a lumber-yard
which it was the duty of the master
to keep in a reasonably safe condi-
tion, in leaving such yard in a dan-
gerous condition, Is the negligence
of the master); Roux v. Blodgett
Ac. Lumber Co., 94 Mich. 607; s. c.
54 N. W. Rep. 492 (duty of looking '
after the safety of the place where
other servants work) ; Ashman v.
Flint &c. R. Co., 90 Mich. 567; s.
c. 51 N. W. Rep. 645 (notice to a
yardmaster of a defective frog is
notice to the company) ; Harrison
v. Detroit Ac. R. Co., 79 Mich. 409;
s. c. 44 N. W. Rep. 1034; 7 L. R.
A. 623; 19 Am. St. Rep. 180; 41
Am. A Eng. R. Cas. 398; Balhoff v.
Michigan Ac. R. Co., 106 Mich. 606;
s. c. 2 Det. Leg. N. 723; 28 Chic.
Leg. N. 166; 65 N. W. Rep. 592
(duty of railway company to pro-
vide a safe track — immaterial that
reparation was entrusted to a com-
petent fellow servant) ; Thomas v.



Ann Arbor R. Co., 114 Mich. 53; s.
c. 4 Det. Leg. N. 485; 72 N. W. Rep.
40 (an employer who delegates a
foreman to select rope from an
abundance of suitable material, and
take it away to a distance for
use by the employes, is liable for
his negligence in selecting defect-
ive rope 5 ) [distinguishing Prescott
v. Ball Engine Co., 176 Pa. St. 459;
s. c. 53 Am. St. Rep. 683]; Carlson
v. Northwestern Teleph. Ac. Co., 63
Minn. 428; s. c. 2 Am. A Eng. Corp.
Cas. (N. S.) 675; 65 N. W. Rep.
914; Kelly v. Erie Tel. Ac. Co., 34
Minn. 321 (duty of furnishing safe
machinery) ; Lindvall v. Woods, 41
Minn. 212; s. c. 4 L. R. A. 793; 42
N. W. Rep. 102(5; "Brown v. Winona
Ac. R. Co., 27 Minn. 162; s. c. 38
Am. Rep. 285; Sackewitz v. Ameri-
can Biscuit Ac. Co., 78 Mo. App.
144; 8. c. 2 Mo. App. Repr. 192
(master cannot relieve himself
from responsibility by delegating
duty to an independent contract-
or) ; Donahoe v. Kansas City, 136
Mo. 657; s. c. 38 S. W. Rep. 571
(immaterial that directions with
respect to bracing the sides of the
trench were given to a fellow serv-
ant of the person injured, the duty
being that of the master) ; Herd-
ler v. Buck's Stove Ac. Co., 136 Mo.
3; s. c. 37 S. W. Rep. 115 (master
cannot relieve himself of the duty
of exercising ordinary* care to pro-
vide reasonably safe appliances for
his servants, by the employment of
superintendents or independent con-
tractors to provide such appli-
ances) ; Rodney v. St. Louis Ac. R.
Co., 127 Mo. 676; s. c. 28 S. W. Rep.
887; s. c. aff'd, 30 S. W. Rep. 150
(duty of taking measures to pre-
vent injury to employes through a
car discovered to be defective) ;
Coontz v. Missouri Pac. R. Co., 121
Mo. 652; s. c. 26 S. W. Rep. 661 (rail-
way company cannot delegate to an
engineer its duty to inspect the
wheels of its engine so as to relieve
it from liability for injuries to a con-
ductor caused by the engine being
thrown down an embankment by
the breaking of a defective wheel) ;
Bowen v. Chicago Ac. R. Co., 95
Mo. 268; s. c. 14 West Rep. 744;
8 S. W. Rep. 230 (duty of keeping

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

must be understood that the doctrine of the preceding section applies
only in cases where the injury visited by the negligence of the su-



bridge In repair); Dutzi v. Geisel,
23 Mo. App. 676; Maher v. Thropp,
59 N. J. L. 186; 8. c. 35 Atl. Rep.
1057 (duty of furnishing suitable
implements); Hustis v. James A.
Banister Co., 63 N. J. L. 465; s. c.
43 Atl. Rep. 651; s. c. 6 Am. Neg.
Rep. 318 (master cannot, delegate
duty of exercising reasonable care
to the end of supporting overhead
shaftings by delegating its per-
formance to an engineer placed in'
charge of the machinery) ; Ad-
dicks v. Christoph, 62 N. J. L. 786;
s. c. 72 Am. St Rep. 685; 6 Am.
Neg. Rep. 117; 43 Atl. Rep. 196
(duty to warn and instruct) ; Flan-
lgan v. Guggenheim Smelting Co.,
63 N. J. L. 647; s. c. 44 Atl. Rep.
762 (duty of furnishing a safe lad-
der) ; Cole v. Warren Man. Co., 63
N. J. L. 626; s. c. 44 Atl. Rep. 647
(duty of furnishing safe appli-
ances); Strauss v. Harberman
Man. Co., 23 App. Div. (N. Y.) 1;
s. c. 48 N. Y. Supp. 425 (the act of
a foreman in repairing or altering a
machine is that of a vice-principal,
and not that of a fellow servant) ;
Kranz v. Long Island R. Co., 123
N. Y. 1; s. c. 20 Am. St. Rep. 716;
33 N. Y. St. Rep. 46; 25 N. E. Rep.
206 (duty of making safe a trench in
which a servant is to work) ; Egan
v. Dry Dock &c. R. Co., 12 App.
Div. (N. Y.) 556; s. c. 42 N. Y.
Supp. 188 (duty of inspecting a
steam-boiler) ; Sciolina v. Erie Pre-
serving Co., 7 App. Div. (N. Y.)
417; s. c. 39 N. Y. Supp. 916; ap-
peal denied/' 151 N. Y. 50; s. c. 45.
Alb. L. J. 377; 45 N. E. Rep. 371
(duty of furnishing suitable and
safe machinery); McNamara v.
Brooklyn City R. Co., 11 Misc. (N.
Y.) 667; s. c. 66 N. Y. St. Rep. 361;
32 N. Y. Supp. 913 (failure to fur-
nish adequate brakes for street-
cars and to keep them in repair —
company cannot escape liability by
directing its servants or agents to
perform the duty); Bernard v.
New York &c. R. Co., 78 Hun (N.
Y.) 454; s. c. 60 N. Y. St. Rep. 789;
29 N. Y. Supp. 230 (failure to pro-
vide proper cars for transporting
dynamite); Simmons v. Peters, 20
App. Div. (N. Y.) 251; s. c. 46 N.
Y. Supp. 800 (duty of lighting a

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gas-jet near an elevator-well so as
to furnish employes with a rea-
sonably safe means of access to the



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