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Commentaries on the law of negligence in all relations online

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pair-shop was held not to be a,, "su-
perintendent" within the meaning

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of the statute: Hartford v. North-
ern Pac. R. Co., 91 Wis. 374; s. c.
64 N! W. Rep. 1033. A yardmaster
whose duty it was to open and close
switches and follow the switch-en-
gine from yard to yard, taking cars
in and out of a quarry, and who
had a key for the purpose of open-
ing and closing switches, was in
"charge or control of a switch"
within the meaning of the statute,
though he was not to be so re-
garded while engaged in the work
of switching the cars in and out of
a track leading to the quarry: Al-
brecht v. Milwaukee ftc. R. Co., 94
Wis. 397; s. c. 69 N. W. Rep. 63.
This statute was repealed by the
statute of 1893, ch. 220 — the statute
now in force.

"•Ean v. Chicago Ac. R. Co., 95
Wis. 69; s. c. 69 N. W. Rep. 997
(recovery being had under Wis.
Rev. Stat., § 4255, making one who
negligently causes the death of an-
other liable for damages if the per-
son killed could have recovered if
death had not ensued).

04 Benson v. Chicago Ac. R. Co..
75 Minn. 163; s. c. 5 Am. Neg. Rep.
182; 12 Am. ft Ehg. R. Cas. (N. S.)
797.

w Roe v. Winston, 86 Minn. 77;
s. c. 90 N. W. Rep. 122 (under the
Wisconsin statute).



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DECISIONS UNDER SPECIAL STATUTES.



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since lie was not injured while "engaged in operating, running, rid-
ing upon or switching" trains, engines, or cars, "and while engaged
in the performance of his duties as such employ6," — the latter clause,
in the theory of the court, referring to the preceding one ; 286 nor,
for the same reason, where a railroad conductor, while standing by
a car for the purpose of watching a switch and closing a car-door
when the car was unloaded, was struck and injured by a bundle
negligently thrown from the car by coemployes ;* 87 nor, for the same
reason, where a warehouseman employed by & railroad company was
injured by reason of the negligence of coemploy6s while he was stand-
ing between an engine-tender ahd car for the purpose of sealing the
end door of the car; 288 nor under the circumstances stated in the
foot-note. 289

§ 5310. Extra-Territorial Effect of such Statutes. — It is held that
a statute of one State making employers liable for injuries to servants
resulting from the negligence of fellow servants can have no appli-
cation to cases where the injury is received outside of such State,
unless the statute clearly provides that it shall apply in such cases. 240



"• Smith v. Chicago Ac. R. Co., 91
Wis. 503; s. c. 65 N. W. Rep. 183.

m Medberry v. Chicago Ac. R. Co.,
106 Wis. 191; s. c. 81 N. W. Rep.
659.

"•Hibbard v. Chicago &c. R. Co.,
96 Wis. 443; s. c. 71 N. W. Rep. 807.

"The defendant was engaged in
repairing its track at a point in the
State of Wisconsin, and employed a
large number of men in and about
such work, including the plaintiff.
Boarding-cars were kept and main-
tained at or near the work, at which
such employes were boarded and
lodged. As the work progressed the
men became further removed from
the boarding-cars; and at their re-
quest and for their convenience, de-
fendant furnished them hand-cars
on which to transport themselves to
and from their work. The defend-
ant did not manage the boarding-
cars, nor operate or have control of
the hand-cars. Such hand-cars were
operated, exclusively by the men,
and they had full charge and con-
trol thereof. A collision occurred
between two of such hand-cars while
the men were transporting them-
selves thereon to the boarding-cars



for their dinner, and the plaintiff
was injured. The collision was
caused by the negligence of the em-
ploye's in charge of one of such cars,
and plaintiff was free from fault
II? was held that the coemployes
were not at the time of the collision
and injury "engaged in the dis-
charge of their duties as such"
within the meaning of the statute,
so as to make the defendant liable:
Benson v. Chicago Ac. R. Co., 78
Minn. 303; s. c. 80 N. W. Rep. 1050.
■"Kahl v. Memphis &c. R. Co., 95
Ala. 337; s. c. 10 South. Rep. 661;
Alabama Ac. R. Co. v. Carroll, 97
Ala. 126; s. c. 11 South. Rep. 803
(although the negligence causing
the injury happened in the enact-
ing State) ; Davis v. New York Ac.
R. Co., 143 Mass. 301; s. c. 9 N. E.
Rep. 815. It was held in Indiana
that the section of the Employers'
Liability Act of that State giving a
right of action in such cases was
unconstitutional: Baltimore Ac. R.
Co. v. Reed, 158 Ind. 25; s. c. sub
nom. Baltimore Ac. R. Co. v. Read,
62 N. E. Rep. 488; Baltimore Ac. R.
Co. v. Jones, 158 Ind. 87; s. c. 62
N. E. Rep. 994.



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

§ 5311. Constitutionality of Statutes Applying Only to Eaflroad
Companies. — Such statutes have been assailed on the ground that they
violate a constitutional prohibition of class legislation. It has been
held that, when they abolish the fellow-servant rule only in regard to
injuries sustained in connection with the use and operation of rail-
roads, they are valid; 241 but where they are not limited by their
terms to injuries sustained only under such circumstances, the courts
will generally hold them invalid in so far as they attempt to impose a
special liability on railroad companies* for injuries not so sus-
tained ; 242 though in a few jurisdictions it is not considered necessary
to their validity that they should be so limited. 248

§ 5312. Whether Statutes Imposing a Special Liability on Bail-
way Companies Apply to Street-Eailway Companies. — In several of
the States it is expressly provided by statute that street-railway com-
panies shall be under the same liability for injuries to their employes
sustained through the negligence of fellow servants, as is imposed by
statute on railroad companies. 244 In the absence of a statute to this
effect, it is held that the common-law rule governs in actions against
street-railway companies. 245

§5313. Whether such Statutes Apply to Logging-Railways. —
In an action under the Minnesota statute, the Supreme Court of
that State held that the protection of the statute extended to the
employes on a logging-railroad conducted by a lumber company for
its own private use and benefit, though such company was not incor-
porated as a railroad company ; 246 though a Federal court, in another

** O'Brien v. Chicago Ac. R. Co., 23 Laws, p. 716; Sayles* Tex. Civ.

116 Fed. Rep. 502 (Iowa statute); Stat. 1897, arts. 4560f-4560i; Acts

Indianapolis Union R. Co. v. Houli- Spec. Sess. 1897, p. 14.

nan, 157 Ind. 494; s. c. 60 N. E. Rep. •"Manhattan Trust Co. v. Sioux

943. City Cable R. Co., 68 Fed. Rep. 82

M *Deppe v. Chicago &c. R. Co., 36 (under Iowa statute); Fallon v.

Iowa 52; Schroeder v. Chicago &c. West End St. R. Co., 171 Mass.

R. Co., 41 Iowa 344; s. c. 47 Iowa 249; s. c. 50 N. E. Rep. 536; Funk v.

375; Potter v. Chicago &c. R. Co., 46 St. Paul City R. Co., 61 Minn. 435; s.

Iowa 399; Chicago &c. R. Co. v. c. 29 L.R. A. 208; 63 N. W. Rep. 1099

Pontius, 52 Kan. 264; s. c. 34 Pac. (although operated by a cable);

Rep. 739; Lavallee v. St. Paul &c. Lundquist v. Duluth St. R. Co., 65

R. Co., 40 Minn. 249; s. c. 41 N. W. Minn. 387; s. c. 67 N. W. Rep. 1006;

Rep. 974; Johnson v. St. Paul &c. R. 4 Am. & Eng R. Cas. (N. S.) 506.

Co., 43 Minn. 222; s. c. 45 N. W. It was so held in Texas, prior to

Rep. 156; 8 L. R. A. 419. the enactment of the Act of 1897:

848 Hancock v. Norfolk Ac. R. Co., Riley v. Galveston City R. Co., 13

124 N. Car. 222; s. c. 32 S. E. Rep. Tex. Civ. App. 247; s. c. 35 S. W.

679; Ditberner v. Chicago &c. R. Rep. 826.

Co., 47 Wis. 138 (under the original *"Schus v. Powers-Simpson Co.,

statute of that State). 85 Minn. 447; s. c. 89 N. W. Rep. 68.

844 S. Car. Civ. Code 1902, § 2848;



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DECISIONS UNDER SPECIAL STATUTES. [2d Ed.

action under the same statute, had previously held that it was lim-
ited in its application to gwast-public corporations having franchises
from the State, and operating railroads open to public travel and use,
and that it did not apply to a logging-railroad built and operated
only for private purposes, and not as a common carrier. 247 So, a
lumber company was not liable as a railway company, under the
Georgia statute, for injuries to an employe engaged in the transpor-
tation of lumber by means of a locomotive used for that purpose by
the company, — and this although its charter authorized it to use and
operate locomotives on tramroads and railroads in connection with
its general business. 248

§ 5314. Whether such Statutes Apply to the Cases of Railroads
in the Hands of Receivers. — In the absence of statutes changing the
rule, the so-called "fellow-servant doctrine" applies so as to exonerate
a receiver — or, more strictly speaking, the fund in his hands — from
liability for injuries sustained by one servant through the negligence
of a fellow servant. 249 Statutes making railroad companies liable
in certain cases for the negligence of fellow servants have been held
to apply to receivers in charge of the property of railroad compa-
nies; 250 and the contrary has been held. 251

§5315. Contracts Waiving Benefit of such Statutes. — Many of
these statutes contain a clause declaring that any contract entered
into by the employ6, on entering the employment, to waive the bene-
fit of the statute, shall be void.' It is held that such statutes are not
unconstitutional as interfering with the freedom of contract. 252

* T Williams v. Northern Lumber s. c. 63 S. W. Rep. 485; Hornsby v.

Co., 113 Fed. Rep. 382. Eddy, 5 C. C. A. 560; s. c. 56 Fed.

*• Ellington v. Beaver Dam Lum- Rep. 461 (such a statute entitles an

ber Co., 93 Ga. 53; s. c. 19 S. E. Rep. employe* injured by the carelessness

21. • of a fellow servant while at work

"•Brown v. Comer, 97 Ga. 801; s. in the line of his duty, to an allow-

c. 25 S. E. Rep. 176 (although the ance against the property of the

company petitioned for the appoint- company in the hands of the re-

ment of a receiver); Toungblood v. ceiver for the injuries sustained);

Comer, 97 Ga. 152; s. c. 23 S. E. Peirce v. Van Dusen, 78 Fed. Rep.

Rep. 509; 25 S. E. Rep. -838; Barry 693; s. c. 47 U. S. App. 339; 24 C. C.

v. McGhee, 100 Ga. 759; s. c. 28 S. A. 280.

E. Rep. 455 (recovery cannot be had ai Campbell v. Cook, 86 Tex. 630;

for an injury sustained by such em- s. c. 40 Am. St. Rep. 878; 26 S. W.

ploy6 before the passage of Ga. Rep. 486; rev'g s. c. 24 S. W. Rep.

Act of Dec. 16, 1895); San Antonio 977; Texas &c. R. Co. v. Bledsoe, 2

&c. R. Co. v. Reynolds (Tex. Civ. Tex. Civ. App. 88; s. c. 20 S. W.

App.), 30 S. W. Rep. 846 (no off. Rep. 1135; Henderson v. Walker, 55

rep.). Ga. 481. See also, note to Turner v.

880 Mikkelson v. Truesdale, 63 Cross, 15 L. R. A. 262.

Minn. 137; s. c. 65 N. W. Rep. 260; ** Powell v. Sherwood, 162 Mo.

Powell v. Sherwood, 162 Mo. 605; 605; s. c. 63 S. W. Rep. 485; Coley

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

Even though the statute contains no such prohibition, such a con-
tract is void as being opposed to public policy; 253 and this is so
though the contract of employment contains a stipulation that the
regular compensation shall cover all the risks of the negligence of
fellow servants. 254

§ 5316. Contributory Negligence as a Defense under these Stat-
utes.— Under these statutes, as at common law, the servant who is
injured through the negligence of his fellow servants must himself
be free from negligence contributing to the accident, in order to
recover damages from the master. 255 .

§ 5317. Statutes Giving a Bight of Action for Injury or Death of
"Aiiy Person." — These statutes are held, with but few exceptions, not



v. North Carolina R. Co., 128 N.
Car. 534; s. c. 39 S. E. Rep. 43;
rehearing denied, 129 N. Car. 407;
s. c. 40 S. E. Rep. 195.

*» Kansas &c. R. Co. v. Peavey,
29 Kan. 169; s. c. 44 Am. Rep. 630.

"♦Hissong v. Richmond &c. R.
Co., 91 Ala. 514; s. c. 8 South Rep.
776.

289 Corning Steel Co. v. Pohlplatz,
29 Ind. App. 250; s. c. 64 N. E. Rep.
476 (boy standing on edge of vat
of molten metal while driving cog-
wheel on shaft with sledgehammer
— missed a blow and fell into vat) ;
Hancock v. Norfolk &c. R. Co., 124
N. Car. 222; s. c. 32 S. E. Rep.
679; McAunich v. Mfssissippi &c. R.
Co., 20 Iowa 338; Hoben v. Burling-
ton &c. R. Co., 20 Iowa 562; Hamil-
ton v. Des Moines &c. R. Co., 36
Iowa 31; Carlin v. Chicago &c. R.
Co., 37 Iowa 316; Lang v. Holiday
Creek R. Co., 42 Iowa 677; Steel v.
Iowa Cent. R. Co., 43 Iowa 109;
Lombard v. Chicago &c. R. Co., 47
Iowa 494; Kansas Pac. R. Co. v.
Peavey, 34 Kan. 472. An instruc-
tion that where there has been mu-
tual negligence, etc., the plaintiff
cannot recover, was held good. It
simply expressed the idea of recip-
rocal or contributory negligence:
Hamilton v. Des Moines &c. R. Co.,
36 Iowa 31. The degree of care ex-
acted of the injured servant is the
same as that exacted of the master,
— ordinary care. The following in-
struction was therefore held bad,
for it required of the plaintiff the

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exercise of more than ordinary care
and foresight: "If it was the usual
and common custom of the defend-
ant's railroad to carry projecting
timbers on cars, the same as when
plaintiff was hurt, then it was
plaintiff's duty to watch and look
for such projecting timbers and
avoid them; and if he did not, when
he could or should have done so, he
is not entitled to recover": Hamil-
ton v. Des Moines Ac. R. Co., supra.
But the bare fact that an employe
did not refuse to obey the order of
his superior, when ordered into a
position of danger in which he was
injured, was held, in one case, not
to be contributory negligence; since
there are many cases in which such
an act is necessary in order to save
the lives of others:* Frandsen v.
Chicago Ac. R. Co., 36 Iowa 372. See
Vol. V, subtitle Contributory Neg-
ligence of the Servant. An in-
struction that the plaintiff was en-
titled to recover if he did not by
his own carelessness contribute to
the accident, was held correct:
Steel v. Iqwa Cent. R. Co., 43 Iowa
109. The repeal of a penalty for
running trains through towns or
cities faster than six miles an
hour did not operate to make a
railroad company liable to an em-
ploye* who was injured by reason
of running at a negligent rate of
speed through a railroad-yard: Far-
quhar v. Alabama &c. R. Co.. 78
Miss. 193; s. c. 28 South. Rep. 850.



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DECISIONS UNDER SPECIAL STATUTES.



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to change the rule of the common law that the master is not liable
in damages to a servant who is injured by reason of the negligence
of his fellow servants, the master himself being free from negligence
contributing to the injury. 256

§ 5318. Under the English Coal-Mines Regulation Act, 1872. —

By this statute, "every mine to which this act applies shall be under
the control and daily supervision of a manager, and the owner or
agent of every such mine shall nominate himself or some other person
(not being a contractor for getting the mineral in such mine, or a per-
son in the employ of such contractor) to be the manager of such mine,
and shall send written notice to the inspector of the district of the
name and address of such manager. A person shall not be qualified to
be a manager of a mine to which this act applies, unless he is, for the
time being, registered as the holder of the certificate under this act." 287
A manager appointed under this act was a fellow servant with a miner
at work in the mine ; and if the latter was killed by the negligence of
the former, damages could not be recovered of the owner of the
mine. 258



"•Sullivan v. Mississippi &c. R.
Co., 11 Iowa 421; Atchison &c. R.
Co. v. Farrow, 6 Colo. 498; Carle v.
Bangor Ac. R. Co., 43 Me. 269; Proc-
tor v. Hannibal &c. R. Co., 64
Mo. 112 [overruling Schultz v. Pa-
cific R. Co., 36 Mo. 13]. Nor is the
State liable under such a statute
where an individual employer
would not be liable: Loughlin v.
State, 105 N. Y. 159; s. c. 7 Cent.
Rep. 70. Where such a statute made
railroad companies responsible for
deaths caused by their negligence,
or by the unfitness or gross negli-
gence of their employes, it was held,
in an action for the death of an
employ^, caused by the unfitness of
a coemployg, with notice of which
the company was chargeable, that
the negligence of such coemploye*
need not have been "gross" in order



to make the company liable, since
the statute had no application to
such an action: Galveston &c. R.
Co. v. Davis, 4 Tex. Civ. App. 468;
s. c. 45 S. W. Rep. 956; 48 S. W.
Rep. 570; 12 Am. & Eng. R. Cas.
(N. S.) 832. But under a statute
requiring railroad companies to
fence their tracks, and making
them liable to "persons thereon" in-
jured by reason of their failure to
do so, it was held that a railroad
company was liable for the death of
a conductor who was killed by a de-
railment of his train, caused by a
steer which had strayed on the
track by reason of the want of a
fence: Quackenbush v. Wisconsin
&c. R: Co., 62 Wis. 411.

™ 35 & 36 Vict, ch. 76, § 26.

""Howells v. Landore &c. Co., L.
R. 10 Q. B. 62.



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INDEX TO VOLUME FOUR.



[References are to Sections.]

A
ABSENCE, "

injury by reason of absence of co-employe*, 4865. s

of superintendent and discharge of his duties by workman, 4956.

ABSOLUTE DUTY,

servant charged with, a vice-principal, 4924.

of repair and inspection, 4926.

of master to employ competent fellow servant, 4883.

to warn and instruct servant of danger, 4935.
servant appointed to perform for master as fellow servant, 4923-

4931.
negligence of master with respect to, commingling with negligence

of fellow servant, 4932, 4933.
decisions exonerating master employing competent agent to inspect

and repair, 4934.

ACCIDENTS,

master not liable for those not reasonably to be anticipated, 3774,

3775.
servant assumes risk of, 4632.
effect of long use of machinery without, 3996.

ACT OF GOD,

master not liable for injuries caused by, 3775.

ACTION OVER,

when master has, against servant, 3870.

ACTIONS,

See Evidence; Procedure.
ADULT SERVANT,

extent of duty to instruct, 4074.

See Children; Minors.
AGE,

effect where minor falsely represents, 3825.
as to risks assumed by servant, 4685.

where servant misrepresents, in securing employment, 4693.
as determining relation of vice-principal, 4966.

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INDEX TO VOLUME FOUK.

{References are to Sections.}
AGENT,. #

what one of master has authority to promise to repair, 4670.
employment of agent to perform duty of master, 4930.
decisions exonerating master employing competent agent to inspect
and repair, 4934.

See Station Agent.
AIR-BRAKES,

injury caused by their failure to work, 4399.
from lack of, or from defects, 4774.

AMPUTATED LIMBS,
disposal of, 3S45.

ANIMALS,

liability for injuries caused by vicious, 4041.

duty of master to warn of dangerous propensities of, 4117.

risks of injuries from, 4812.

APPLIANCES,

duty of master as to, 3760.

of railway company as to, 4249-4251.
as to safety of, 4245.
reasonable care to keep them safe, 3768.
railway company not bound to adopt every new one, 4244, 4255.
assuming risks of known defects in, 4707.
concurring negligence of master and fellow servant in furnishing,

4858.
distinction between repairs and details of work under fellow-serv-
ant rule, 4851.

construction and operation under fellow-servant rule, 4850.
negligent selection of by fellow servant, 4852.
repair and inspection of, absolute duty of master, 4926.
See Duty of Inspecting and Finding Out; Machinery, Tools and

Appliances.
ARKANSAS,

employers' liability act, and construction thereof, 5290.

ASSAULTS,

liability for those upon seamen, 4235.

ASSISTANCE,

volunteers assisting within fellow-servant doctrine, 4982.
person invited to assist as fellow servant, 4983.
rendition to servant in an emergency as within fellow-servant doc-
trine, 4984.

ASSISTANT FOREMAN,

when deemed vice-principal, 4960.
ASSISTANT SUPERINTENDENT.

as vice-principal, 4957.
ASSOCIATION,

close association and oversight as determining common employ-
ment, 4970.
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INDEX TO VOLUME FOUR.

[References are to Sections.']
ASSUMPTION,

that master has done his duty, 3766. '

ASSUMPTION OP RISK,

unguarded machinery, 4024.

where rules are habitually violated, 4164.

of defective railway track, 4260.

objects near railway track, 4282.

of defect in foreign car, 4386.

comprehensive statement of doctrine, 4608.

special statement of the doctrine, 4609.

reason of rule relating to, 4610.

distinction between, and contributory negligence, 4611.

application of maxim: volenti non lit injuria, 4612.

servant assumes risks ordinarily incident to employment, 4613.
accepting the risk of master's negligence, 4614.

risks involving unusual or extraordinary hazards, 4615.

defects in something for the condition of which servant is responsi-
ble, 4616.

injury from defects which servant is employed to repair, 4617.

special or unforeseen negligence of the master, or his representa-
tive, 4618. •

negligence of persons creating conditions for which master is re-
sponsible, 4619.

injuries caused by non-compliance with statute, 4620.

when servant waives protection of statute, 4621. /

how statutes affect contributory negligence of servant, 4622.

operation of other statutes upon the question of servant accepting
the risk, 4623.

servant proceeding in violation of known rules accepts risks, 4624.

injury in consequence of defective rules or absence of rules, 4625.
from failing to obey rules which have been abandoned or re-
. voked, 4626.

from voluntarily adopting a dangerous instead of a safe
method, 4629.

the risks of danger which are questionable or debatable, 4627.

unusual or extra-hazardous method of performing work, 4628.

where servant is ordered to perform a dangerous duty, 4630.

risk of temporary conditions which are unusual and extraordinary,
4631.

inevitable or inscrutable accidents, 4632.

rule of does not apply where relation of master and servant does
not exist, 4633.

effect of express contract concerning, 4634.

exonerating master where servant participates in railway relief
fund, hospital fund, etc., 4635.

rules putting risk upon the employe, 4636.

where servant knows defect but does not appreciate danger, 4652.

continuing in service after knowledge of danger, 4667-4672.
after promise to repair, 4668, 4669.



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INDEX TO VOLUME FOUR.

{References are to Sections.]
ASSUMPTION OF RISK— Continued,

defects in tools, appliances, etc., 4707.
unfitness or negligence of fellow servants, 4712-4716.
in various railway employments, 4734-4744.
illustrative cases of risks assumed and not assumed, 4837-4841.
danger from negligence of fellow servant not assumed, 4854.
fellow-servant doctrine is a part of the doctrine, 4847.
continuing in service after acquiring knowledge of danger, 4651-
4672.
See Dangers in Premises or Place of Work; Dangers Outside of
Scope of Employment; Elevators in Buildings; Miners and Mi.xe
Workers; Risks; Risks Assumed rt Minors; Risks in Coupling
and Uncoupling Cars; Various Risks Assumed or Not Assumed.

AUTOMATIC COUPLERS,

failure to furnish on railway cars, 4416.
statutes requiring, 4417, 4418.



B
BACTERIA,

master not liable for injuries caused by, 3966.*

BAGGAGEMAN,

whether a servant of railroad company, 3742.

BAGGAGE * MASTER,

and trainmen as fellow servants, 6026.

BARRIERS,

duty to provide about mine shafts, 4196, 4198.

BELTS,

liability of master for injuries by, 4042. /

BLASTING,

duty to provide means of escape, 3924.

to make rules to protect servants engaged in, 4173.
blast unexploded in mines, 4211.
risks assumed in, 4828.

employes engaged as fellow servants, 5171, 5172.
See Explosions and Explosives.
BOILERMAKER,

and carpenter of ship as fellow servants, 6194.

BRAKES,

duty of railway to inspect and repair, 4393-4395.
statute requiring on certain railway cars, 4402, 4403.

BRAKEMAN,

duty to furnish coupling-sticks to, 4415.
injured by improperly loaded cars, 4535.

risk assumed by, where conductor orders him to couple or uncouple



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 160 of 165)