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Commentaries on the law of negligence in all relations online

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stated is so obviously unsound as
not to require discussion. Moreover,
as seen by preceding cases in this
note, the highest court in the State
where these rulings occur has held
otherwise.

"Louisville Ac. R. Co. v. Allen, 47
111. App. 465; Chicago Ac. R. Co. v.
Merrlman, 86 111. App. 454 (instruc-
tion condemned which disregards
the knowledge of the master of both
the defects and dangers); Richard-
son v. Cooper, 88 111. 270 (lack of
notice decisive, in connection with
other circumstances ) ,

••Vol. I, S 8; ante, § 37*2.

"Murtaugh v. New York Ac. R.
Co., 49 Hun (N. Y.) 456.

-Ante, § 3786.

-Ante, § 3794; Myers v. American
Steel Barge Co., 64 111. App. 187; s.
c. 1 Chic. L. J. Wkly. 228; Pioneer
Cooperage Co. v. Romano wicz, 85 111.
App. 407; s. c. aff'd, 186 111. 9; 57
N. E. Rep. 864 (enough that the
master might have been Informed
by the use of such diligence as the
law imposes upon him); Illinois
Cent. R. Co. v. Schumann, 101 111.
App. 668; Illinois Steel Co. v. Schy-
cianowski, 162 111. 447; s. c. 44 N. E.
Rep. 876; aff'g s. c. 59 111. App. 32;
Monmouth Min. Co. v. Erling, 148
111. 521; s. c. 36 N. E. Rep. 117;



afTg s. c. 46 111. App. 411; Car-
ruthers v. Chicago Ac. R. Co., 55
Kan. 600; s. c. 40 Pac. Rep. 915 (un-
less the master knew of the defect,
or it was of such a nature, or had
existed for such length of time,
that, in the exercise of ordinary
care, the master should have dis-
covered it); Rice v. King Philip
Mills, 144 Mass. 229; Gray v. Com-
mutator Co., 86 Minn. 463; s. c. 89
N. W. Rep. 322; Breen v. St Louis
Cooperage Co., 60 Mo. App. 202;
Elliott v. St. Louis Ac. R. Co., 67
MO. 272; Covey v. Hannibal Ac. R.
Co., 86 Mo. 635; Burnes v. Kansas
City Ac. R. Co., 129 Mo. 41; s. c. 31
S. W. Rep. 347 (master not liable
for injury caused to his servant by
a temporary obstruction placed in a
walk which his servant was re-
quired .to use, where there Is noth-
ing to show that it was placed there
by any one for whose conduct the
master was responsible, or that the
master had, or might have had by
reasonable care, notice of it) ; Do-
ing v. New York Ac. R. Co., 151 N.
Y. 579; rev'g s. c. 73 Hun (N. Y.)
270; 26 N. Y. Supp. 405; 58 N. Y.
St. Rep. 64 (where the rule Is nega-
tively stated); Maitland v. Cleve-
land Ac. R. Co., 5 Ohio Dec.
636; s. c. 3 Ohio Leg. N. 289, 303
(railroad company exonerated from
blame for dangerous condition of its
roundhouse caused by poisonous
gases); Kingan v. Pittsburg Trac-
tion Co., 5 Pa. Super. Ct. 436; s. c.
28 Pitts. L. J. (N. S.) 128; 41 W. N.
C. (Pa.) 63; Bennett v. Standard

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

On the one hand, mere notice that the machine, etc., is defective in
a dangerous sense, will not render an employer liable for negligence
in failing to remedy it, unless he had a reasonable time and oppor-
tunity for doing so after receiving the notice ; 60 yet, on the other hand,
the lapse of time during which it has been thus defective prior to the
accident, will be a very material evidentiary fact upon the question
whethe/ he was negligent in not discovering the defect, or in not repair-
ing it after discovering it. 61 Clearly, where the defect is recent, and
unknown to the superior officers of the employing company, but known
to the employ6 who is injured' thereby, who neglects to report it prior
to the accident, — he will have no ground of action for the injury re-
ceived in consequence of it. 62

§ 3797. What will be Notice to the Master of suoh a Defect. — In

nearly all the cases of this kind with which lawyers and judges have
to deal, the employer is an incorporated company, and, therefore, the
solution of the question under consideration will depend upon the
question of what is, under a given state of facts, notice to a corpora-
tion, — which opens up a very extensive inquiry. 68 It is believed
that the following propositions may be affirmed, as applicable to
all cases, whether the employer is a natural person or a corporation :
— 1. Notice to the employer is well communicated when it is given
either (a) to that agent or servant of the master whose duty it is to
communicate it to the master, or (b) to that agent or servant of the
master who is charged with the duty of keeping the machine, the ap-
pliance, the place, etc., in repair, 64 — at least, where the notice is corn-
Plate Glass Co., 158 Pa. St. 120; s. c. n Monmouth Min. Ac. Co. v. Erl-
27 Atl. Rep. 874; Smith v. Gulf 6c. ing, 128 111. 521; s. c. 86 N. E. Rep.
R. Co. (Tex. Civ. App.), 65 S. W. 117; affg s. c. 45 111. App. 411.
Rep. 88 (no off. rep.) (holding that - Essex County Elec. Co. v. Kelly,
an instruction in an action for inju- 57 N. J. L. 100; s. c. 29 Atl. Rep.
ries to a servant, requiring the jury, 427. Circumstances under which
before they could find for plaintiff, the negligence of the employer, after .
to find that the bar furnished him he had received notice that a ma-
was an "unsuitable, unsafe, or im- chine had become dangerous and
proper instrument," to the knowl- had taken steps to renew it, was
edge of the defendant, — was errone- held a question for a jury: Murphy
ous, in .that it was Immaterial v. Crossan, 98 Pa. St. 495. That hot
whether defendant knew it was un- cinders frequently exploded when
suitable and unsafe or not, If he unloaded upon wet surfaces tends
could have known of it by the use of to establish the fact that cinders
ordinary Intelligence); Klochinski are liable to explode when so un-
v. Shores Lumber Co., 93 Wis. 417' loaded, and tends to charge an em-
s. c. 67 N. W. Rep. 934. ployer or workman with notice of

90 Seaboard Man. Co. v. Woodson, such fact: Western Tube Co. v.
98 Ala. 378; s. c. 11 South. Rep. 733; Polobinskl, 94 111. App. 640; s. c.
s. c. on former appeal, 94 Ala. 143; aff'd, 192 111. 113; 61 N. E. Rep. 451.
10 South. Rep. 87; United States "See 4 Thomp. Corp., § 5189.
Rolling Stock Co. v. Weir, 96 Ala, . " Patterson v. Pittsburgh &c. R.
396; s. c. 11 South. Rep. 436. Co., 76 Pa. St. 389; Colorado Ac. R.

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GENERAL PRINCIPLES.



[2d Ed.



municated to him when he is acting in the discharge of such duty to
his master. 65 Under this rule, notice of a defect in a railway-track
to the superintendent and foreman, 86 to the assistant superintendent, 67
to the foreman of a gang of men employed by the company to repair
its track, 68 to an engineer in charge of an engine engaged in pushing
freightrcars up an incline, 89 has been held notice to the company.
So, notice of the condition of a defective railway-locomotive is notice
to the company if given to the foreman of the roundhouse and super-
intendent of machinery, 70 or to the foreman of the company's repair-
shops. 71 And, generally speaking, notice of a danger or a defect given
to the foreman of an employer in charge of the particular work, will
be deemed notice to the employer ; 72 and, for the same reason, knowl-
edge of such a danger or defect possessed by such a foreman will be
deemed the knowledge of the employer. 18 And if the master's su-
perior agent in general control of the premises and operations en-



Co. v. Ogden, 3 Colo. 499; Brabbitts
v. Chicago 4c. R. Co., 38 Wis. 289;
Nashville Ac. R. Co. v. Elliott, 1
Coldw. (Tenn.) 611, 618; Prazier v.
Pennsylvania "R. Co., 38 .Pa. St. 104;
Hess v. Rosenthal; 160 111. 621; s. c.
43 N. E. Rep. 743; Wellston Coal Co.
v. Smith, 65 Ohio St 70; s. c. 61 N.
B. Rep. 143; 55 L*. R. A. 99 (owner
or operator of a mine chargeable
with knowledge of whatever the
"mine-boss" knows, or ought to
know, respecting the condition of
the mine).

•Wade on Notice, § 672; Story on
Ag., §5 140, 461; Whart. on Ag., I
178.

•Patterson v. Pittsburgh Ac. R.
Co.. 76 Pa. St 389.

w Colorado Ac. R. Co. v. Ogden, 3
Colo. 499.

•Gage v. Delaware Ac. R. Co., 14
Hun (N. Y.) 446.

•Nashville jkc. R. Co. v. Elliott, 1
Coldw. (Tenn.) 611. The opinion
of the court at the same time con-
cedes that the engineer and the
wiper who was injured were fellow
servants, — a conclusion hard to
reconcile with the preceding.

n Chicago Ac. R. Co. v. Shannon,
43 111. 338.

n Brabbitts v. Chicago Ac. R. Co.,
38 Wis. 289.

"Boyd v. Blumenthal, 3 Pen.
(Del.) 664; s. c. 52 Atl. Rep. 330.

"Chicago Ac R. Co. v. Scanlan,
170 111. 106; s. c. 48 N. E. Rep.. 82 6;
a£Tg 8. c. 67 111. App. 621 (knowl-



edge by foreman of carpenters of de-
fects in scaffold he had aided in
erecting for use of brick-masons).
Where a servant notifies a foreman
of the master of a defect in a ma-
chine, and the foreman, though not
charged with the care of such ma-
chine, attempts to remedy the de-
fect but by reason of his negligence
in failing properly to do such work
the servant is injured, he cannot re-
cover for such injuries of the mas-
ter; since he should have notified
the master or the foreman having
charge of the repair of the machine:
Thomas v. Bellamy, 126 Ala. 253;
s. c. 28 South. Rep. 707. Circum-
stances under which notice to a
shipping-clerk of a defect in an ele-
vator under the control of the ship-
ping-clerk, was notice to the pro-
prietor: Larkin v. Washington
Mills Co., 61 N. Y. Supp. 93; s. c.
45 App. Div. (N. Y.) 6 [distinguish-
ing McCarthy v. Washburn, 42 App.
Div. (N. Y.) 252; s. c. 58 N. Y.
Supp. 1125]. Circumstances under
which a stove manufacturer is rep-
resented by its employs so far as
concerns the safety of the ma-
chinery used in mounting its stoves,
and is chargeable with the knowl-
edge of such employ^ that the ma-
chinery is out of repair, and is
bound by the promise of such em-
ploy 6 to have it repaired: Toledo
Stove Co. v. Reep, 18 Ohio C. C. 58;
s. c. 9 Ohio C. D. 467.

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4 Thomp. N"eg.] duties and liabilities of the master.

joins the performance of his duties upon a common servant, the neg-
ligence of this servant will be the negligence of the owner or operator,
and whatever notice such servant has concerning the premises, the ap-
pliances, and the operations, will be imputed to the owner or operator. 74
On the other hand, knowledge of defects possessed by an ordinary
workman having no duty to instruct or repair, is not imputable to the
proprietor; 75 and on this principle notice of a defect given by one
servant to a fellow servant, — for example, by a locomotive-fireman to
the engineer, — it not chargeable to the master, unless the servant re-
ceiving the notice stands toward the master in the relation of vice-
principal. 16 It follows, from the preceding, that the knowledge of a
defect possessed by a mere fellow servant of the servant who sustains
an injury thereby, does not charge the master with knowledge of it,
unless it was the duty of the fellow servant either to communicate it
to the master or to repair it himself. 77 2. The employer is chargeable
with notice when, without reference to the question whether notice
has been so communicated or not, the machine, appliance, or place has
been out of repair for so long a time that the master, in the exercise
of the reasonable duty of inspection which he owes to the end of pro-
moting the safety of his servants, 78 ought to have discovered it. The
doctrine of this last proposition is constantly applied for the pur-
pose of charging municipal corporations with dangers springing out
of the neglect to keep their highways in repair ; and for the purpose
of charging corporations owning private works with dangers arising
from their failure to keep such works in repair. 79 Outside of these
considerations, it has been held that notice to a railroad company that
cars, on passing over a certain place in its # track, h&d a jumping or
jarring motion, is not notice to it of a latent internal seam in a rail
at that place, which subsequently caused the rail to split and break,
when the motion of the cars did not suggest the defect in the rail. 80

§ 3798. Constructive Notice of the Defect from Lapse of Time. —

The principle that negligent ignorance on the part of the master of
a dangerous defect in the machinery, tools, or appliances with or

M Wellston Coal Co. v. Smith, 65 w Chicago Ac. R. Co. v. Merriman,

Ohio St. 70; s. c. 61 N. E. Rep. 143; 95 111. App. 628.

55 L. R. A. 99 (mine-boss having "Smoot v. Mobile Ac. R. Co., 67

general control of a mine delegated Ala. 13.

his duties to a common miner — no- n Ante, § 3782; post, § 3798.

tice to the miner was notice to the "See 4 Thomp. Corp., § 5235.

mine-owner or operator). "James v. Northern Pac. R. Co.,

"St. Louis &c. R. Co. v. Threat, 46 Minn. 168; s. c. 48 N. W. Rep.

12 Tex. Civ. App. 375; s. c. 34 S. W. 783.
Rep. 152; 3 Am. & Eng. R. Cas. (N.
S.) 358.

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QENEEAL PRINCIPLES. [2d Ed.

about which his servant is required to work, has the same effect in law
as actual knowledge of such defect, is often expressed by saying that
where the length of time and other circumstances are such that the
master ought, by the exercise of the diligence which the law requires
of him, to have acquired knowledge of the defect, the law will impute
constructive notice of it to him and will charge him for the conse-
quences of its existence. 81 The operation of this doctrine is simply to
charge the master with constructive notice of whatever he might have
discovered by the use of ordinary or reasonable care. 82

§ 3799. Circumstances under which Knowledge of One Defect will
Impute Knowledge of Another Defect. — A very interesting question
is, under what circumstances knowledge of one defect in an appliance
ought to put the master on inquiry and raise the duty of inspection
as to other defects so as to impute constructive notice to him of such
other defects although he may have no actual knowledge of them.
It has been held that one defect in a machine, consisting of the strik-
ing of the piston in the cylinder, caused by the bending of the piston,
does not charge him with knowledge of another defect, consisting of
the tilting back of the cylinder of its own accord while the employ^
was filling it, and the descent of the piston into it. 83

§ 3800. Manner of Proving such Notice or Knowledge on the Fart
of the Master. — As to the manner of proving** knowledge on the part
of the master, it has been held that evidence of the general reputation
of the appliances or coemploy6s through the defect in which or the

"Cushman v. Carbondale Fuel dangerous condition of the floor of

Co., 116 Iowa 618; s. c. 88 N. W. a mill in consequence of grease

Rep. 817 (fall of rock from the roof having been left thereon by em-

of a mine — circumstances justify- ploy 6s in the mill for the space of

ing a finding that the defective three hours).

condition of the roof had existed "Chicago ftc. R. Co. v. Merrlman,
for such a length of time as to 95 111. App. 628. That a yard con-
charge the owner with constructive ductor, appointed to care for a
notice of it) ; Fluhrer v. Lake switch during the temporary ab-
Shore ftc. R. Co., 121 Mich. 212; s. c. sence of the regular switchman,
80 N. W; Rep. 23 (defect in the does not remain continuously at the
planking over a. railroad-crossing, switch, does not give the company
by reason of which a brakeman implied notice that the switch is
was injured while coupling cars) ; unattended, so as to make it liable
Stapf v. Loewer's Gambrinus Brew- for injuries to a fireman on a train
ery Co., 1 App. Div. (N. Y.) 406; caused by failing to have the switch
s. c. 72 N. Y. St. Rep. 578; 37 N. Y. closed: Parker v. New York &c. R.
Supp. 256 (constructive notice of a Co., 18 R. I. 773; s. c. 30 Atl. Rep.
defect in a pitch-kettle where it had 849.

existed for six or eight weeks); M Schulz v. Rohe, 149 N. Y. 132;

Burke v. National India-Rubber s. c. 43 N. E. Rep. 420.

Co., 21 R. I. 446; s. c. 44 Atl. Rep. "See also, post, § 3803a, et seq.
307 (constructive notice of the

VOL. 4 THOMP. NEO.— 6 81



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

.incompetency of whom the injury was inflicted, may be received to
charge the employer with knowledge, notwithstanding he may have
been actually ignorant of it. Ignorance on the part of the employer will
be negligence, in a case in which any proper inquiry would have ob-
tained the necessary information, and where the duty to inquire was
plainly imperative. 85 But it has been held that the mere fact that a
locomotive-engine has been in the use of a railway company for sev-
eral years is not sufficient evidence to charge it with notice of a de-
fect in its original construction. 86 Where the issue was, whether the
defendant, a railway company, had been negligent in retaining in its
employment a servant, competent and fit when he was employed, evi-
dence that the division superintendent had been heard to say that he
must quit drinking, and that he had reprimanded him for it, was held
admissible. 87

§ 3801. Correlative Duty of Master and Servant with Respect to
Knowing and Finding Out. — Juries are frequently misled by the habit
of courts of charging them concerning this obligation of the master,
without at the same time bringing to their attention the correlative
duty of the servant. In ordinary cases (for there are exceptions),
ftiey should be told that to authorize a recovery these two things must
stand in conjunction: knowledge on the part of the master, or its
equivalent, negligent ignorance ; and a want of knowledge on the part
of the servant, or its equivalent, excusable ignorance. 88 While this
rule is not universal, as will be seen, 89 3'et, in most cases which arise,
the rights of the parties must be adjusted by it. Perhaps the rule
cannot be better formulated than in the statement that, to render the
master liable for injury caused to his employes by reason of defective
machinery, it must appear that the master knew, or by the exercise of
proper diligence ought to have known, of its unfitness, and that the
servant. did not know, or could not reasonably be held to have known,
of the defect, regard being had to his situation and opportunities. 90
The better opinion is that the rule does not apply where the servant
has equal means of knowledge with the master. In other words, the
law does not require the master to exercise greater care in providing

88 Davis v. Detroit Ac. R. Co., 20 Thomas, 42 Ala. 672; Union Pac. R.

Mich. 105; Cook v. Parham, 24 Ala. Co. v. Milliken, 8 Kan. 647, 652;

21; Chicago Ac. R. Co. v. Shannon, Indianapolis &c. R. Co. v. Love, 10

43 111. 338. Ind. 554; Jones v. Yeager, 2 Dill.

86 Mobile &c. R. Co. v. Thomas, 42 (U. S.) 64, 67. See McGlynn v.

Ala. 672. Brodie, 31 Cal. 376; Stone v. Oregon

"Chapman v. Erie R. Co., 55 N. City Man. Co., 4 Or. 52.

Y. 579. See post, § 4907, et seq. M Post, § 4652.

"Walsh v. Peet Valve Co., 110 "HuH v. Hall, 78 Me. 114; Nason

Mass. 23; Mobile Ac. R. Co. v. v. West, 78 Me. 253.

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GENERAL PRINCIPLES. [2d Ed.

f 6r the **af ety of the servant than it requires the servant to exercise in
providing for his own safty. Negatively sfated, the rule agreed upon
by many of the courts therefore is, that the servant cannot recover for
an injury resulting from defective machinery, appliances or premises,
unless the master knew, or ought to have known, of the defect, and un-
less the servant was ignorant of it and had not equal means of knowl-
edge with the master. 91 Where it becomes a question of knowledge
merely, and not of diligence in acquiring knowledge, then the rule is
correctly formulated in the proposition that a master is liable for an
injury to his servant caused by a latent defect of which the master had
notice and of which the servant was ignorant. 92 If it does not appear
that the master knew of the defect, or was ignorant of it through a
want of that reasonable care for the safety of his servant which, as
already seen, the law puts upon him, — then the master is not liable,
and the question of the negligence of the servant becomes immaterial. 93
An illustration of this correlative duty of knowing, where the duty
was more immediate on the part of the servant than on the part of
the master, is found in a case where it was held that a railway com-
pany is not liable for injuries to a brakeman on a freight-train, alleged
to have been due to a defective lantern which he used in giving signals,
if the company did not know and had no means of learning of the de-
fect, an* the brakeman, although not knowing of it, had the sole care
and custody of the lantern, and by proper diligence might have known
its defective condition and reported the fact to the company. 94

§ 3802. Circumstances under which Master Exonerated from Lia-
bility for Failure to Make Inspections. — A number of cases have been'
collected under this head, some of them badly decided, exonerating the
master from liability to servants killed or injured in consequence of
the master's failure to discharge the duty of making suitable inspec-
tions of the machinery and appliances about which his servants were
required to work : — As, for example, decisions exonerating the master
from liability for an accident caused by the wrongful interference of

"Humphreys v. Newport News 752; 41 Am. A Eng. R. Cas. 282;

Ac. Co./33 W. Va. 135; s. c. 10 S. E. post, § 4643.

Rep. 39; 39 Am. A Eng. R. Cas. ••Columbia Ac. R. Co. v. Haw-

363; Hoffman v. Dickinson, 31 W. thorn, 3 Wash. Ter. 353; s. c. 19 ,

Va. 142; s. c. 6 S. E. Rep. 53; Bailey Pac. Rep. 25; Bean v. Oceanic

v. Rome Ac. R. Co., 49 Hun (N. Steam Nav. Co., 24 Fed. Rep. 124.
Y.) 377; s. c. 19 N. Y. St. Rep. 656; "Chicago Ac. R. Co. v. Stites, 20

Chicago Ac. R. Co. v. Stites, 20 111. 111. App. 648; Hobbs v. Stauer, 62

App. 648; Washington Ac. R. Co. v. Wis. 108; NelSon v. Dubois, 11 Daly

McDade, 135 U. S. 554; s. c. 34 L. (N Y.) 127.

ed. 235; 18 Wash. L. Rep. 526; 42 •* Pennsylvania Co. v. Congdon,

Alb. L. J. 175; 10 Sup. Ct Rep. 134 Ind. 226; s. c. 33 N. E. Rep.

1044; Goltz v. Milwaukee Ac. R. Co., 795. See post, § 4616.
76 Wis. 136; s. c. 44 N. W. Rep.



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



his employes with the machinery, which interference he was not bound
to anticipate; 95 for failure to inspect machinery, otherwise in good
repair, with respect to the cleaning and oiling of it, — this being, in the
theory of the court, a mere detail of the work ; 96 for failing to inspect
"exploders" given to quarry-men for use, where the manufacturers of
them make repeated inspections in the^ process of construction, and
the exploders are as good as any made, and no one but an expert could
make a competent inspection, and no defect in one has been discovered
after their use for several years; 97 for the failure of a railway com-
pany to inspect, during its use, a push-pole eight feet long and six
inches in diameter, — the master being entitled to rely upon the pre-
sumption that the servant using it will first discover any defect in it; 98
for the failure on the part of an employer to inspect stone, after it
is delivered from the quarry, to ascertain whether any explosives are
left about it, where such inspections were always made at the quarry,
and were never made after the stone had been delivered; 99 for the
failure of ship-repairers, employed to make such repairs upon a vessel
as the engineer of it should direct, to inspect the riveting of the lower
section of a ventilator which was being repaired, they having no op-
portunity to do so ; 100 for the failure to inspect -a plank in a scaffold-
ing, apparently of ample size and strength, which had been used for
over two years, in which no defect had been discovered, but which broke
while a workman was on it. 101 In a case of an injury to a servant by



"Schwandt v. William Wright Co.,
126 Mich. 609; s. c. 85 N. W. Rep.
1107 (servant unnecessarily climbed
on roof and removed a board placed
there to prevent weights at ends of
cables from striking employes
working underneath; and cable
broke, allowing weight to fall and
kill the servant; master not negli-
gent in not inspecting cable, as the
board was a sufficient protection if
not interfered with).
•"Quigley v. Levering, 167 N. Y.
58; s. c. 60 N. E. Rep. 276; 54 L. R.
A. 62; aff'g s. c. 50 App. Div. (N.
Y.) 354; 68 N. Y. Supp. 1059 [citing
Webber v. Piper, 109 N. Y. 496;
s. c. 17 N. E. Rep. 216 (keeping cir-
cular saw sharp is a detail of
work) ; Crispin v. Babbitt, 81 N. Y.
516; s. c. 37 Am. Rep. 521. (letting
steam into engine is a detail of



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 17 of 165)