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Commentaries on the law of negligence in all relations online

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§ 5155. Mine Employes whose Duty it is to Keep the Mine Safe. —
An employ^ of a mine-owner whose duty it is to timber a drift in a
mine so as to provide and keep a safe place for the other employes to
work in, is employed to discharge one of the primary, absolute and
unassignable duties of the master, and is, consequently, a vice-prin-
cipal and not a fellow servant of the men working in the mine. 24
Contrary to this, another court has held that an employ^ in a mine
whose duty it is to take down loose slate which is liable to fall, is
not a vice-principal while so engaged, but is a fellow servant of the
miners. 25

§ 5156. Gas-Tester in Mine and Miner. — In a case where the plain-
tiff was injured by an explosion of gas, while working in the defend-
ant's coal mine, it appeared that the gas-tester had inspected the mine
and placed warning notices in conspicuous places, and fiotified an
assistant to get brattice-cloth and meet him later to remove the gas.
The plaintiff and a fellow servant reached a breast where they were
to labor, and saw the warning, but, thinking there was but little gas
present, the plaintiff's companion took off his coat and brushed the
gas, as he had been instructed to do when gas was present in small
quantities only. His act drove the gas toward one of the open lamps
carried by the men, such lamps being always used unless the men
were otherwise instructed by the gas-tester, and an explosion took
place. There was evidence that the brattice-cloth in use was insuffi-
cient to give ventilation, and that a new one had been promised, and
that the gas-tester had brushed small collections of gas out of the
place where the explosion occurred. It was held that such gas-tester

occupied the position of vice-prin- against the mine-owner: Carleton

cipal so far as the work of making Min. &c. Co. v. Ryan, 29 Colo. 401;

an extension of a pipe to keep the s. c. 68 Pac. Rep. 279.

mine-shaft clear of water was con- a Lehigh Valley Coal Co. v. Jones,

cerned, so that his negligence in the 86 Pa. St. 432; s. c. 6 Repr. 125; 17

discharge of such duty, whereby a Alb. L. J. 513.

workman was injured in conse- M Grant v. Varney, 21 Colo. 329;

quence of the failure of the pump- s. c. 40 Pac. Rep. 771.

man to secure a stull, justified a ver- * Fosburg v. Phillips Fuel Co., 93

diet In favor of the plaintiff, and Iowa 54; s. c. 61 N. W. Rep. 400.


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

was not a fellow servant of the plaintiff, and that the master was lia-
ble for his negligence. 26

• § 5157. Mine-Engineer and Fire-Boss. — An employe , of a coal-
mining company whose duties consist in ventilating the mine, in
attending to an inside furnace, and in guarding the wooden buildings
at the entrance of the shaft which contain the engine and machinery,
is deemed a fellow servant of the engineer, where the latter is not the
superior of such employ6 or entrusted by the master with the discharge
of any duty with respect to him. 27

§5158. Fire-Boss and Miners or Mine-Workers. — A fire-boss in
a coal mine, whose duty it is to inspect the working-places and to in-
form the miners who work by contract as to the safety of their work-
ing-places, represents the mine-owner in so doing. 28

§ 5159. "Timber-Boss" and Miner. — A "timber-boss" whose duty
it is to superintend the repairs of a stairway beside the track upon
which run lifting-cars which are used in miniiig, is deemed a fellow
servant of a miner assisting him in such repairs, so that the latter
cannot recover for injuries from being struck by one of such cars, due
to the failure of the timber-boss to have them stopped while repairs
are being made. 29

§ 5160. Coal-Miner and Men Employed to Remove the Coal which
he Mines. — A coal-miner who receives pay according to the quantity
of coal mined by him is a fellow servant of the men employed by the
operator of the mine to assist in getting out coal without actually
drilling holes or aiding in blasting with powder, through whose negli-
gence the former is killed. 80

§ 5161. Miner and Common Workman. — There is meager author-
ity for the conclusion that a miner and a common workman employed
about a mine are not fellow servants within the rule under considera-
tion. 31

* Costa v. Pacific Coast Co., 26 n Jenkins v. Mahopac Iron-Ore Co.,

Wash. 138; s. c. 66 Pac. Rep. 398 57 Hun (N. Y.) 588 (mem.); 32 N.

(his negligence consisted, seemingly, Y. St. Rep* 866; 10 N. Y. Supp. 484.

in failing to warn the men of the S0 Cerrillos Coal R. Co. v. Dese»

quantity of gas present, and of the rant, 9 N. M. 49; s. c. 49 Pac. Rep.

danger of using open lamps). 807.

" Coal Creek Min. Co.' v. Davis, 90 81 James v. Emmet Mining Co., 55

Tenn. 711; s. c. 18 S. W. Rep. 387. Mich. 335; Evans v. Carbon Hill Coal

28 Cerrillos Coal R. Co. v. Deserant, Co., 47 Fed. Rep. 437 (laborer en-

9 N. M. 49; s. c. 49 Pac. Rep. 807. gaged in constructing a railway for


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§5162. Miner and Roadman in Mine. — These are fellow serv-
• ants. 82

§ 5163. Mine-Superintendent and Contractor to Break Down
Bock. — One who enters into a contract with a mining company to
break down rock and ore for a certain distance, at a certain price per
foot, the company to furnish the steam-drill and keep the drift clear
of rock, is not a fellow servant of the superintendent of the mine, but
is an independent contractor, and may recover for injuries resulting
from the negligence of the superintendent. 88

§ 5164. Miner and Ore-Hoister or Cage-Operator Not Fellow Serv-
ants. — In one State it is held that a servant of a mining company,
working at the bottom of a shaft which is operated by the company
to hoist ore from the various levels of the mine for lessees of the levels,
and an employ^ of a lessee allowing ore to fall and injure the former,
are not fellow servants. 84 In another State, under a statute 88 provid-
ing that all persons who, while in the service of any one, are in the
same grade of service, and are working together, at the same time
and place, and to a common purpose, neither of such perspns being
entrusted by such employer with any superintendence or control over
his fellow employes, are fellow servants of each other, — it is held that
a miner is not a fellow servant with one whose duty it is to manage
and operate a cage by which the miners are conveyed in and out of
the mine. 86

§ 5165. "Pushers" in a Mine. — "Pushers" in charge of the several
shifts of men operating a mine are fellow servants with respect to their
duty of notifying each other, at the time of changes of shifts, of unex-
ploded holes in the shaft. 87

§ 5166. Miner and Tool-Carrier. — It has been held that a miner
is not a fellow servant with one employed as a "tool-carrier," whose
only. duty is to take sharpened tools into the mine and throw them
off at the various levels, and bring up the dull ones. 88

transportation of coal from a mine ■» Mayhew v. Sullivan Min. Co., 76

deemed not a fellow servant with a Me. 100.

miner at work outside the mine M Union Gold Min. Go. v. Crawford,

handling lumber to be used in the 29 Colo. 511; s. c. 69 Pac. Rep. 600.

mine in timbering up, in the ab- » Utah Rev. Stat. 1898, § 1343.

sence of facts in the pleading show- M Jenkins v. Mammoth Min. Co.,

ing them to be in a common employ- 24 Utah 513; s. c. 68 Pac. Rep. 845.

ment—so held in ruling on demurrer " Anderson v. Daly Min. Co., 16

to complaint). Utah 28; s. c. 50 Pac. Rep. 815.

"Troughear v. Lower Vein Coal "Jenkins v. Mammoth Min. Co.,

Co., 62 Iowa 576. 24 Utah 513; s. c. 68 Pac. Rep. 845.


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

§ 5167. Engineer and Engine-Repairer. — An engineer in charge
of the blowing-engines in a mine is a fellow servant of an engine-
repairer while the latter is at work upon one of the engines, so far
as regards the duty of the engineer to prevent the starting of the
engine. 89

§ 5168. Other Mining Employes to whojn the Relation of Fellow
Servants has been Ascribed. — The relation of fellow servants has been
ascribed to an employe whose duty it is to see that a tram-track in a
mine is in proper condition, and an employe whose duty it is to sprag
the wheels of the tram-cars for the purpose of checking their speed ;*°
to a timber-man and a dirt-scratcher in a coal mine injured* while
assisting the timber-man at his request, — the fact of his having been
requested by the foreman to assist the timber-man on previous like
occasions not being deemed to make the timber-man his vice-principal,
since the timber-man had no power to compel the dirt-scratcher to
assist him, or to discharge him if he refused ; 41 to an employ^ at the
top of a mine-shaft whose duty it is to dump the ore-bucket and let it
down, and an employ^ at the bottom of the shaft whose duty it is to
fill the bucket, which is hoisted by means of a horse led by a boy, and
let down slowly by the same means; 42 to a miner killed by the ex-
plosion in an unused part of thp mine into which he was sent without
any previous inspection for the detection of explosive gas, and the
underground manager whose duty it was to make such an inspection ;"
to a blacksmith employed on the surface to sharpen tools for miners
engaged underground, and a servant employed to deliver the tools to
those who are to use them. 44

§ 5169. Additional Illustrations of the Fellow-Servant Doctrine
in Mining Cases. — The rule of a coal-mining company that the danger
of falling coal is one of the usual risks of the service has no application
where the fall is occasioned by the negligence of an employ^ acting in
his capacity as a vice-principal. 46 A corporation working a mine by

"Dantzler v. De Bardeleben Coal Idaho 771; s. c. 3 Idaho (off. ed.)

&c. Co., 101 Ala. 309; s. c. 22 L. R. A. 28; 26 Pac. Rep. 127.

361; 14 South. Rep. 10 (under Ala. "Consolidated Coal Co. v. Gruber,

Code 1886, § 2590, sub-sec. 2). 188 111. 584; s. c. 59 N. E. Rep. 254;

40 Woodward Iron Co. v. Cook, 124 aff'g s. c. 91 111. App. 15 (assistant

Ala. 349; s. c. 27 Sojith. Rep. 455. mine-manager, whose duty it was to

"Kellyville Coal Co. v. Humble, repair coal-cutting machines, while

87 111. App. 437. testing one which was out of repair.

42 Adams v. Snow, 106 Wis. 152; s. and merely as a test, and not to mine
c. 81 N. W. Rep. 983. coal, negligently cut away a block

43 Grant v. Acadia Coal Co., 34 N. of coal left as a support, causing a
S. 319. large quantity of coal to fall and in-

44 Snyder v. Viola Min. &c. Co., 2 jure plaintiff).


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a general superintendent is not liable for an injury to a miner from
the negligence of one employed to point out to the miners the place
where holes are to be drilled, although the latter has authority to hire
and discharge workmen ; since a mere boss or foreman is a fellow serv-
ant, and not a vice-principal. 46 A blacksmith employed in a mine
cannot recover from the company employing him for injuries from
an explosion of dynamite caused by the negligence of a fellow servant,
in the absence of evidence that the directors of the company, or any
one connected with it other than fellow servants with such blacksmith,
was aware of the mode in which the dynamite was kept. 41

§ 5170. Engineer of Quarry and Quanyman. — These have been
held to be fellow servants. 48

§ 5171. Servants Engaged in Blasting. — Servants in a mine or
quarry engaged in drilling holes for blasts and loading them with
powder are usually held to be fellow servants; 49 and this is so even
though the negligent servant is a foreman. 60 It was held in one case
that a servant engaged in blasting rock, and a servant engaged in
hauling rock who was killed through his negligence, were fellow serv-
ants, although engaged in different branches of the same under-
taking. 81

§ 5172. Whether Foreman of a Quarry Failing to Give Notice
that a Blast is about to be Exploded Acts as a Fellow Servant or as a

*• Gilmore v. Oxford Iron &c. Co. f * Ward v. Naughton, 74 App. Div.

55 N. J. L. 39; s. c. 25 Atl. Rep. 707 (N. Y.) 68; s. c. 77 N. Y. Supp. 344

(following O'Brien v. American (two forces of men employed in

Dredging Co., 53 N. J. L. 291). digging two trenches toward each

"Mclnnis v. Malaga Min. Co., 25 other, had reached a point where a

N. S. 345. The question of defective wall of rock only two feet thick sep-

wmstruction of a dividing partition arated them, when the blast was set

in a shaft in a mine is immaterial, off in one of the trenches, without

where a workman, while ascending sufficient warning, tearing down the

a ladder in one side of the shaft, was wall and injuring the plaintiff, who

struck by a timber negligently was employed in the other trench) ;

thrown down the other side of the Johnson v. Portland Stone Co., 40

shaft by a fellow workman, and Or. 436; s. c. 67 Pac. Rep. 1013; 68

which got into the side in which the Pac. Rep. 425 ; Wiskie v. Montello

ladder was by reason of the defective Granite Co., Ill Wis. 443; s. c. 87

partition, where there is no evidence N. W. Rep. 461.

that if reasonable care had been "Ward v. Naughton, 74 App. Div.

used in throwing the log down the (N. Y.) 68; s. c. 77 N. Y. Supp. 344;

accident would have happened, but Johnson v. Portland Stone Co., 40

the presumption is strongly the Or. 436; s. c. 67 Pac. Rep. 1013; 68

other way: Kevern v. Providence Pac. Rep. 425.

Gold &c. Min. Co., 70 Cal. 392. 51 Bogard v. Louisville &c. R. Co.,

48 Chapman v. Reynolds, 77 Fed. 100 Ind. 491.
Rep. 274; s. c. 33 U. S. App. 686; 23
C. C. A. 166.


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4 Thomp. N"eg.] the fellow-servant doctrine.

Vice-Principal — Under a statute which appears to be merely declar-
atory of the common-law doctrine, it has been held that the duty of
giving notice to those at work in a quarry that a blast is about to be
exploded, is not a personal duty resting upon the master, but that he
does all that is required of him when he hires a competent servant
for the purpose. Such servant, although a foreman of the work, is
deemed to be a fellow servant ; so that, if he neglects to give the proper
warning, then, in the absence of averment and proof that he was
incompetent or unfit for his position, or that the place was otherwise
an unsafe place to work, the master will not be liable for an injury
to a servant proceeding from this cause. 52

* Donovan v. Ferris, 128 Cal. 48; s. c. 60 Pac. Rep. 519.


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5176. Servants of various grades em-

ployed In and about vessels
generally deemed fellow serv-

5177. Circumstances in which they

are not fellow servants.
6178. Officers of a ship and its crew.

5179. Master of vessel and member

of crew.

5180. Master of vessel and engineer

or fireman.

5181. Master of vessel and mate.

5182. Mate of vessel and members of
' the crew.

5183. Engineer of boat and machine-


5184. Engineer of vessel and coal-


5185. Wlnchman employed by ship-

owner, and stevedore or
stevedore's employe's.

5186. Superintendent of loading and

men in the hold.


5187. Employe* of stevedore and crew

of vessel.

5188. Dock superintendent and


5189. Stevedore and stevedore.

5190. Stevedore and boatswain.
51&1. Foreman of stevedore and


5192. Employe of a "boss scooper"

and member of the crew.

5193. Grain-shoveller and captain of

a steam-tug.

5194. Carpenter and boilermaker on

the same ship.

5195. Pilot and deck-hand.

5196. Dry-dock foreman and dry-

dock laborer.

5197. Captain of a "State boat" and

a laborer.

5198. Engineer repairing machinery

on a coal-dock and laborer
' repairing a chute connected
with the dock.

§ 5176. Servants of Various Grades Employed in and about Ves-
sels Generally Deemed Fellow Servants. — Subject to exceptions here-
after noted, it may be stated generally that all servants of various
grades who work together in and about vessels, whether in loading
them, 1 or in unloading them, 2 or in making various repairs upon

1 Ocean S. S.'Co. v. Cheney, 86 Ga.
278; 8. c. 12 S. E. Rep. 351 (person
employed to attend hatchway and to
give warning to those below assist-
ing in loading is their coemploye') ;
s. c. on second appeal, sub nom.
Cheeney v. Ocean S. S. Co., 92 Ga.
726; 19 S. B. Rep. 33; 44 Am.
St Rep. 113 (hatch-tender absenting
himself from his station, where he
is placed to warn laborers in the
hold, is, with respect to a workman

in the hold injured by a bale of cot-
ton being dropped into it without
warning, his coemployS); Kenny v.
Cunard S. S. Co., 52 N. Y. Super.
434 (laborer loading a cargo is the
fellow servant of another laborer
working above him); The Bolivia,
59 Fed. Rep. 626' (laborer in loading
deemed a fellow servant of winch-
man through whose carelessness a
box fell into the hold).
■Olsen v. Starin, 60 N. Y. Supp.


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

them, 8 or in navigating them, 4 or in working about the wharves at
which they are docked, 5 or in rigging them, 6 are fellow servants
where they are employed by a common master. 7

§ 5177. Circumstances in which they are Not Fellow Servants.—

On the other hand, courts have refused to ascribe the relation of fel-
low servant to a longshoreman employed in unloading a ship, with
respect to the servants on board the ship having charge of its sup-
plies; 8 to coemploy6s of a workman, where such coemployes are en-

134; s. c. 43 App. Div. (N. Y.) 422
(servant operating a steam-engine
in unloading, and another servant of
the same master piling the lumber
as it is unloaded); The Servia, 44
Fed. Rep. 943 (longshoreman en-
gaged in unloading injured by the
fall of iron from a skid, caused, by
the negligence of the guy-tender or
engineer) .

•Butler v. Townsend, 126 N. Y.
105; s. c. 36 N. Y. St Rep. 508; 26
N. E. Rep. 1017; rev'g s. c. 32 N. Y.
St. Rep. 1055; 10 N. Y. Supp. 809
(workmen employed to fix sheets of
metal on the hull of a vessel and
other workmen employed in caulk-
ing the seams therein).

4 Hedley v. Pinkney &c. S. S. Co.,
[1894] A. C. 222 (sailor falling over-
board and drowning because of the
neglect of the master to ship stanch-
ions and rails provided for the pur-
pose of raising the bulwarks to a
proper height) ; Carlson v. United
&c. Pilots' Assn., 93 Fed. Rep. 468
(mate of vessel and men drowned,
through his negligence, in a yawl
lowered to take a pilot from an out-
going vessel).

6 Red River Line v. Cheatham, 9 C.
C. A. 124; s. c. 60 Fed. Rep. 517
(drowning of a deck-hand through
the negligence of the tender of the
fall attached to the landing-stage in
letting it go so that the stage tilts
and falls into the river, throwing
the deck-hand off). But the negli-
gence of the mate on a steamboat in
failing to give a signal before letting
the gangplank slide to the deck, by
reason of which a deck-hand who
was coming to his assistance was in-
jured, was the negligence of a vice-
principal, even though his act in un-
tying the plank might have been a
duty not pertaining to his duty as
vice-principal: Nelson v. S. Willey
S. S. &c. Co., 26 Wash. 548; s. c. 67
Pac. Rep. 237.


•Burns v. Sennett (Cal.) f 44 Pac
Rep. 1068 (no off. rep.) (servants
working together in rigging appli-
ances for stevedores are fellow serv-
ants of a stevedore injured by their
negligence); Pickett v. Atlas S. S.
Co., 12 Daly (N. Y.) 441 (scaffold-
builder and rigger employed on a
steamship in port).

7 The Islands, 28 Fed. Rep. 478:
The Sachem, 42 Fed. Rep. 66; Wood
v. New Bedford Coal Co., 121 Mass.
252 (employ 6 assisting in unloading
coal from vessel, and operating a
winch to which guy-rope was at-
tached, by which buckets could be
swung into position for dumping,
injured by failure of engineer to stop
hoisting-machinery at proper place,
the ascending bucket drawing out
guy-rope and causing crank of winch
to fly around and injure him — no re
covery) ; Baron v. Detroit ftc. NaT.
Co., 91 Mich. 585; s. c. 52 to. W. Rep.
22 (ship-carpenter fell through un-
covered 'hatchway left so by negli-
gence of fellow workmen) ; Geoghe-
gan v. Atlas S. S. Co., 146 N. Y. 369;
s. c. 40 N. E. Rep. 507 (master, mate
or other officer, in failing to close
doors of a gangway at night, acts as
a fellow servant of other employes
and not as a vice-principal ) ; Moy y.
Ocean S. S. Co., 12 Misc. (N. Y.)
375; s. c. 33 N. Y. Supp. 563; Smith
v. Empire Transp. Co., 89 Hun (N.
Y.) 588; s. c. 70 N. Y. St Rep. 120;
35 N. Y. Supp. 536 (painter of an
iron floor injured by its fall where
it had been safely placed on end, but
where its supports were removed by
fellow servants); Quebec S. S. Co.
v. Merchant. 133 U. S. 375; s. c. 33
L. ed. 656; 7 Rail, ft Corp. L. J. 432;
10 Sup. Ct. Rep. 397 (porter and car-
penter are fellow servants of the

•Sansol v. Compagnie Generale
Transatlantique, 101 Fed. Rep. 390.

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gaged in clearing a dock, — they being deemed the general representa-
tives of the master, so far as the work of clearing is concerned, in re-
moving timbers standing over the head of such workman; to one em-
ployed in unloading lumber from a vessel, with respect to a gang of
men on shore employed to receive and pile the lumber on the dock; 10
to an engineer having charge of the hoisting-machinery of a canal-
boat, whose duty it was to inspect the ropes and replace old ones with
new ones, with respect to an employ6 who was injured by the breaking
of a rope wfiich had become worn ;" to a superintendent who failed to
keep his promise to station a hatch-tender at the hatchway to inform
laborers in the hold when bales of cotton were going to be dropped
into it."

§ 5178. Officers of a Ship and its Crew. — The officers of a ship and
the members of its crew of whatever grade, so far as concerns the
details of the navigation of the ship, are deemed to be engaged in a
common undertaking in their several stations, and are, hence, regarded
by the maritime law, as well as by the common law, as fellow servants
of each other. 18

§5179. Master of Vessel and Member of Crew. — Although the
master of a ship is the tyrant of the crew, possessing vastly more power
over them by virtue of the admiralty law and of the statute law than
is possessed by any superintendent or foreman over the men under
him on land, — yet judicial casuistry has ascribed to him the status of
a fellow servant with respect to the members of the crew of whatever
grade, and whether the ship is moored to a dock or is out upon the
sea. 1 * There are a few decisions to. the contrary, and they seem to

•Northwestern Fuel Co. v. Daniel- 507 (master or mate used an insuffi-

son, 6 C. C. A. 636; s. c. 57 Fed. Rep. cient rope instead of an iron door

915. which had been provided, to bar an

10 John Spry Lumber Co. v. Dug- opening in the side of the vessel; and

gan, 80 111. App. 394. a member of the crew fell through

u Cregan v. Marston, 32 N. Y. St and was drowned — no recovery);

Rep. 913; s. c. 10 N. Y. Supp. 681. Larssen v. Delaware &c. R. Co., 59

"Cheeney v. Ocean S. 8. Co., 92 App. Div. (N. Y.) 202; s. c. 69 N. Y.

Ga. 726; s. c. 19 S. E. Rep. 33; 44 Supp. 352 (captain a fellow servant

Am. St Rep. 113. of a deck-hand on a barge) ; Olson

13 Olson v. Oregon Coal &c. Co., 44 v. Oregon Coal &c. Co., 104 Fed.

C. C. A. 51; s. c. 104 Fed. Rep. 574; Rep. 574; s. c. 44 C. C. A. 51; affg s.

aff'g s. c. 96 Fed. Rep. 109; 32 Chic. c. 96 Fed. Rep. 109; 32 Chic. Leg. N.

Leg. N. 43 (member of crew injured 43 (negligence of master in leaving

through the negligence of an officer cover off of a hatch is that of a fellow

in leaving a hatchway open). servant of the ship-carpenter); The

"Geoghegan v. Atlas S. S. Co., 3 Ravensdale, 63 Fed. Rep. 624 (cap-

Misc. (N. Y.) 224; s. c. 51 N. Y. St tain of a lighter engaged in deliver-

Rep. 868; 22 N. Y. Supp. 749; s. c. ing boards upon a vessel could not

aff'd, 146 N. Y. 369; 40 N. E. Rep. recover for Injuries from the fall of


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Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 150 of 165)