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Commentaries on the law of negligence in all relations online

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the blast to be stopped, the superintendent was guilty of negligence
for which his principal was liable. 21

§ 3812. Oiling, Cleaning, or Bepairing Machinery while in Motion.

— A master is not negligent in requiring, in accordance with a universal
practice in other mills, a loom to be fanned to cleanse it while in mo-
tion, so as to render him liable to an employ^ injured while so engaged,
where by such method time is saved and the work facilitated, result-
ing in a benefit to the injured employ6, who works by the piece, and
no similar accident has ever occurred, although the process has to be
repeated "sometimes over twice a day." 22 To let a young man without
experience, and to whom the foreman has given erroneous instruc-

" McPhee v. Scully, 163 Mass. in his judgment was necessary, and

216; s. c. 39 N. E. Rep. 1007. See if the accident happened notwith-

post, § 5281, et seq. standing such care, defendant was

n Illinois Steel Co. v. McFadden, not liable; since, it having been the

98 111. App. 296; s. c. aff'd, 196 111. practice to remove the plates when

344; 63 N. E. Rep. 671; Illinois the blast was off, the superintend-

Steel Co. v. Sitar, 98 111. App. 300; ent had no right to exercise his

s. c. aff'd, 199 111. 116; 64 N. E. Rep. own judgment in determining

984. In this case, it being an action whether it was safe to remove the

for the death of a servant while as- plate when the blast was on; and

sisting in removing from the walls for the further reason, that the

of a blast-furnace certain "bosh- amount of care necessary will not

plates," which it was customary to be left solely to the judgment of a

remove only when the blast was superintendent, thus exonerating

off, and while there was no pres- the master: Illinois Steel Co. v.

sure on the plates from the blast, McFadden, supra.
it was proper to refuse to instruct M Gideon v. Enoree Man. Co., 44

that, if the superintendent was in S. C. 442; s. c. 22 S. E. Rep. 598.
the exercise of all the care which


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[2d Ed.

tions, undertake the work of lacing a broken belt without stopping the
shaft over which it hangs, is negligence for which the employer is re-
sponsible, where in consequence thereof the employ6 is caught in such
belt and drawn around the shaft. 28

Article V. Ordering Servant into Danger.

Section .

3814. Ordering servant into more

dangerous place — Exposing
him to risks not within the
contract of service.

3815. Injuries in consequence of

obeying orders of superior.

3816. Ordering a servant to violate

an injunction or commit a


3817. Subjecting servant to hostile

attack by servants of an-
other company.

3818. Liability of master for order-

ing minor employe into a
more dangerous employ-

3819. Instances of this liability.

§ 3814. Ordering Servant into More Dangerous Place— Exposing
him to Bisks Hot within the Contract of Service. — For a superintend-
ent, or foreman of work, or "boss," or superior servant of whatever
grade or whatever name, who is entitled to command the inferior
servant and to receive obedience from him, to order him into a more
dangerous situation than that called for by his contract of service, or
to do work not called for by such contract, attended with special haz-
ards, or with greater danger than the ordinary work which he has
contracted to do, and especially without giving him adequate warn-
ing and instruction, and more especially where he is a minor, whereby
injury is brought upon him, is generally deemed to be the act of a
vice-principal, and, consequently, that of the master, so as to make the
master liable for the injury in the absence of contributory fault on the
part of the injured servant In such cases, the master cannot ex-
onerate himself, by invoking the so-called "fellow-servant rule," on
the theory that the wrong of his vice-principal is merely the wrong
of a fellow servant of the injured servant. 1 It has been well said that

^Archbald v. Yelle, Rap. Jud.
Que. 6 B. R. 334 (in French). That
an employer is not negligent in di-
recting a boy eighteen years old to
clean a revolving shaft with a piece
of bagging instead of furnishing
him with cotton-waste for the pur-
pose, — see Smith v. Martin, 39 N. Y.
St. Rep. 126; s. c. 14 N. Y. Supp.

1 This conclusion, • though not al-
ways reasoned In the same way,

may be collected from the following
among many other cases: Orman
v. Mannix, 17 Colo. 564; s. c. 17 L.
R. A. 602; 30 Pac. Rep. 1037; 31
Am. St. Rep. 340 (gang-boss or-
dered a boy fourteen or fifteen
years of age, who was subject to
his orders, to run and throw away
an ignited stick of giant powder,
which act was outside of the duties
and employment of the boy, but
within the scope of the employment


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

the rule as to fellow servants has no application where the injury is
occasioned by exposing the servant to risks not within his contract of

and duties of the boss); Augusta
Factory v. Hill, 83 Ga. 709; s. c. 10
S. E. Rep. 450 (railway yardmaster
ordered by superintendent to break
into a gas-room to extinguish a fire
and killed by the walls falling upon
him) ; Augusta v. Owens, 111 Ga.
464; s. c. 36 S. E. Rep. 830 (quarry-
man struck by a rock loosened by a
laborer from above him, who had
been put to work there by the
superintendent without warning
plaintiff of the danger); Hinckley
v. Horazdowsky, 133 111. 359; s. c.
23 N. E. Rep. 338; 24 N. E. Rep.
421; 8 L. R. A. 490; aff'g s. c. 33
111. App. 259 (boy twelve years old,
unable to appreciate the danger, or-
dered by the foreman to oil dan-
gerous machinery while in mo-
tion); Louisville &c. R. Co. v.. Gra-
ham, 124 Ind. 89; s. c. 24 N. E. Rep.
668 (negligence of railway foreman
in ordering another employs to
work in a dangerous place, is the
negligence of the company and not
that of a coemployS); Hawkins v.
Johnson, 105 Ind. 29; s. c. 55 Am.
Rep. 169; Swift & Co. v. Creasey, 9
Kan. App. 303; s. c. 61 Pac. Rep.
314 (one employed* as ash-wheeler
in a packing-house, ordered to as-
sist in putting out a fire in the
smoke-house, containing much burn-
ing wood and grease, and without
warning or instruction, turned a
hose thereon, causing an explosion,
injuring him — instance of a pe-
tition stating a good cause of ac-
tion); Erickson v. Milwaukee &c.
R. Co., 83 Mich. 281; s. c. 47 N. W.
Rep. 237 (common laborer on a
gravel-train, ordered by the fore-
man to uncouple cars and jump
from one to the other while they
were in motion); Rowland v. Mis-
souri Pac. R. Co., 20 Mo. App. 463
(section-foreman ordered a section-
hand to take up a rail, telling him
that it was free and elear, but, not
feeing free and clear, it rebounded,
injuring the man — foreman acted
as vice-principal and not as fellow
servant); Rettlg v. Fifth Ave.
Transp. Co., 6 Misc. (N. Y.) 328;
s. c. 56 N. Y. St. Rep. 235; 26 N. Y.
Supp. 896; s. c. aff'd. 144 N. Y. 715;
70 N. Y. St. Rep. 868; 39 N. E. Rep.
859 (superintendent ordered plain-


tiff to leave his regular employment
and open a heavy door in a manner
directed, he having no knowledge
of defects in its rolling-gear, of
which both the superintendent and
the employer knew, in consequence
of which he was Injured); Lofrano
v. New York &c. Water Co., 55 Hun
(N. Y.) 452; s. c. 29 N. Y. St. Rep.
557; 8 N. Y. Supp. 717; s. c. afl'd.
130 N. Y. 658; 29 N. E. Rep. 1033
(foreman directed employe" to warm
a quantity of dynamite, without
warning him of the danger, which
was unknown to him, and it ex-
ploded, injuring him — master lia-
ble); Berry v. Atlantic Storage
Co., 50 App. Div. (N. Y.) 590; s. c.
64 N. Y. Supp. 292; 98 N. Y. St.
Rep. 292 (employe ordered from his
usual place of work outside an ele-
vator to a dark place within, and
ordered to walk along a platform
and ascertain whether a bin was
open — platform collapsed, injuring
him — master liable); Boyle v. Deg-
non-McLean Const Co., 47 App.
Div. (tf. Y.) 311; s. c. 61 N. Y.
Supp. 1043; 95 N. Y. St. Rep. 1043;
appeal dismissed, 163 N. Y. 591
(master placed employe, at night,
within seven feet of a large hola.
in an elevated trestle, used for
dumping coal into bunkers under-
neath. Had provided planks to
cover the hole, but had not estab-
lished or enforced any rule to
cover the hole at night. The place
being insufficiently lighted, the em-
ploye" fell through and was killed —
master liable); Benzing v. Stein-
way, 101 N. Y. 547; s. c. 5 N. E.
Rep. 449 (servant ordered by fore-
man out of the line of his employ-
ment to mount a platform which
was unsafe, and thereby received
an injury — master liable) ; Means
v. Carolina Cent. R. Co., 126 N. C.
424; s. c. 35 S. E. Rep. 813; s. c. on
former appeals, 122 N. C. 990; 124
N. C. 574 (specially considered in-
fra, note) ; Anderson v. Bennett, 16
Or. 515; s. c. 8 Am. St. Rep. 311;
19 Pac. Rep. 765 (see infra, note,
for a statement of this case) ;
Weaver v. Iselin, 161 Pa. St. 386;
s. c. 29 Atl. Rep. 49 (minor em-
ployed in a coal mine— employ-
ment changed with knowledge of

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[2d Ed.

employment. 2 In a case in the Queens Court of the Province of
Quebec, the doctrine is stated by saying that the owner of a manu-

8uperintendent, having power to
hire and discharge — minor thereby
exposed to increased danger and
killed — master liable); Electric R.
Co. v. Lawson, 101 Tenn. 406; s. c.
47 S. W. Rep. 489; 12 Am. ft Eng.
R. Cas. (N. S.) 669 (track-foreman
ordered a section-hand to board a
car while in motion, and section-
hand injured — foreman held to be
a vice-principal and master liable) ;
Texas Ac. R. Co. v. Lewis (Tex.
Civ. App.), 26 S. W. Rep. 873 (no
off. rep.) (section-hand ordered by
foreman having power to employ
and discharge, to assist in remov-
ing hand-car from track in front of
approaching train; section-hand in-
jured — company liable); Mahood v.
Pleasant Valley Coal Co., 8 Utah
85; s. c. 30 Pac. Rep. 149 (foreman
ordered a car, the brake of which
he knew to be defective, to be sent
.down a grade — company liable to a
servant injured in attempting to
stop the car); Sias v. Consolidated
Lighting Co., 73 Vt. 35; s. c. 50
Atl. Rep. 554 (servant ordered tc
climb a telegraph-pole and fell-
master not entitled to an instruc
tion on the fellow-servant rule);
Jones v. Old Dominion Cotton
Mills, 82 Va. 140; s. c. 3 Am. St
Rep. 92 (boy thirteen years old,
hired by his father "to sweep, carry
water, and fill the buckets witfc
quills," was ordered by a vice-prin-
cipal of the company to assist in
putting on a belt which had
broken, and was injured— company
liable) ; Mason v. Edison Machine
Works, 28 Fed. Rep. 228 (factory
foreman with power to employ and
discharge, left a single laborer to
hold on edge the bed-plate of an
engine, when at least four men
would seem to have been neces-
sary; laborer injured — master lia-
ble) ; Hardy v. Minneapolis Ac. R.
Co., 36 Fed. Rep. 657 (act of a
yardmaster in directing a call-boy
to perform the duty of making
switches, Imputed to the company
and company liable for the boy's

Other Decisions in Support of the
Foregoing Text. — A seaman was
compelled by the mate of the ves-
sel, who was in temporary com-

mand, to work In a dangerous situ-
ation in unloading lumber. The
seaman had protested against the
manner in which the mate was
discharging the lumber, but the
mate refused to adopt any other
method. In consequence of pursu-
ing this method some of the lum-
ber fell upon the seaman, injuring
him. It was held that he was en-
titled to recover damages from the
ship: The Frank and Willie, 45
Fed. Rep. 494. Where one was not
only the foreman to direct the
work of the hands under him, but
the person to provide that they
should have a reasonably safe place
at which to work, consistent with
the exigencies of the situation, it
was of no importance by what name
he was called, whether a middleman,
superintendent, or foreman; and
when he ordered an employe 1 to set
up machinery and drill holes at the
place where the injury occurred,
without having taken any care, or
at least adopted some precautionary
measures, to discover whether there
were holes charged with giant pow-
der which had failed to explode,
and to guard against the danger of
the drills penetrating them, etc. —
he committed a negligent or wrong-
ful act, and exposed the plaintiff to
a serious danger not contemplated
by his contract of service, for which
the master was liable: Anderson v.
Bennett, 16 Or. 515; s. c. 8 Am. St.
Rep. 311; 19 Pac. Rep. 765. The
plaintiff's Intestate, a servant of de-
fendant company, was a brakeman
on a freight-train, carrying a pas-
senger-coach and running on a regu-
lar schedule, under the management
of one who was both engineer and
conductor, and who had the right
to employ or discharge any of the
crew, which fact intestate knew. As
the train was pulling out of a sta-
tion at night, intestate was ordered
by the engineer to collect the fares
and bring them -to him, which he
did, but, after returning with the
fares, the train was running too
fast for him to safely jump off the

* Jones v. Old Dominion Cotton
Mills, 82 Va. 140; s. c. 3 Am. St.
Rep. 92.


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. 4 Thomp. Neg.] duties and liabilities op the mastek.

facturing establishment, who causes a workman to perform very dan-
gerous work, especially wiien such workman is not accustomed to such

engine and on to the passenger-
coach, as it came by, so he started
back over the train, as his duties
required him to be at the rear end,
and, in going from the tender to a
fiat-car, he fell and was run over
and killed. It was held that de-
fendant was guilty of negligence
in giving the order it did, through
its vice-principal, the engineer,
without allowing intestate time to
execute it without endangering his
life: Means v. Carolina Gent. R. Co.,
126 N. C. 424; s. c. 35 S. E. Rep.
813; s. c. on former appeals, 122 N.
C. 990; 124 N. C. 574. Where an em-
ploye, while employed to haul stave-
bolts to a factory and to unload
them at a certain place, to reach
which he had to pass through a
narrow way under a revolving
shaft, which, unknown to him, had
been broken and repaired with pro-
jecting bolts after his last previous
load, and the wagon-way raised so
he could not sit on the load and
drive under the shaft safely as be-
fore, was directed by his employ-
er's foreman to drive under the
shaft, then in motion, and unload
his wagon at the usual place; and,
in attempting to do so, and in ig-
norance of the danger until it was
too late to avert it, he was caught
by the projecting bolts and injured,
— it was held that the employer was
liable, unless, by the exercise of
reasonable care, the employe could
have discovered and avoided the
danger: Hawkins v. Johnson, 105
Ind. 29; s. c. 55 Am. Rep. 169.
Where a superior servant direct-
ed the servant to do a certain
act which he was not ordina-
rily called upon to perform,
without giving him proper in-
structions, by reason of which he
was injured, it was held that the
master was liable: La Fortune v.
Jolly, 167 Mass. 170; s. c. 45 N. E.
Rep. 83 (son of master directed
workman, ignorant of the danger
from the door of the fire-box blow-
ing open, to build a fire under a
boiler for the purpose of furnishing
power, and failed to give him proper
instructions, by reason of which he
was injured). Where an engineer
was sent out in charge of a locomo-


tive to do switching, without either
brakeman or conductor, and the en-
gineer directed the fireman to
couple certain cars to the engine,
the fireman being without experi-
ence and the service being outilde
the scope of his duty, in the doing
of which he was injured, the railway
company was liable: Pennsylvania
Co. v. Hickley, 20 Ohio C. C. 668;
s. c. 11 Ohio C. D. 379 (question
whether the railroad company was
negligent was for the jury).
. Decisions Seemingly Opposed to
the Foregoing Text. — It has been
held that the facts that the fore-
man of the gang* in which plaintiff
was engaged directed him, after
turning a switch, to mount the sec-
ond car from the engine for the
purpose of aiding in sending the
unloaded cars down to the repair-
shop, and that plaintiff was injured
in mounting said car in conse-
quence of its having a broken jaw-
brace, are not sufficient to warrant
a jury in finding the foreman guilty
of negligence, for which the com-
pany might be liable, where there is
no evidence that such foreman was
charged with the business of inspect-
ing the cars, or knew of the defect
in said car, or had any better means
of knowledge than plaintiff: Flana-
gan v. Chicago &c. R. Co., 50 Wis.
462. Another court has held that
a superior servant, under whose
direction a carpenter is working
upon a ladder in front of a car-
stable, who promises but fails to re-
main at the foot of the ladder to
give the workman notice whenever
it is necessary to remove the lad-
der in order to permit the cars or
a cart to pass in or out of the stable,
does not represent the master, but
is at the time doing the work of a
servant or employs: Byrnes v.
Brooklyn Heights R. Co., 36 App.
Div. (N. Y.) 355; s. c. 55 N. Y.
Supp. 269; 89 N. Y. St. Rep. 269.
See also, Coosa Man. Co. v. Wil-
liams, 133 Ala. 606; s. c. 32 South.
Rep. 232 (servant ordered to put a
belt on a rapidly-revolving shaft by
raising it with a pole, and hiirt) ;
Martin v. Highland Park Man. Co.,
128 N. C. 264; s. c. 38 S. E. Rep. 876;
Reed v. Stockmeyer, 74 Fed. Rep.

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kind of work, and does not receive a salary in proportion to the risk he
runs, is liable in damages for the death of the workman. 8

§ 3815. Injuries in Consequence of Obeying Orders of Superior. 4 —

This brings up the question whether the superior servant giving the
orders acts as a vice-principal or as a fellow servant. The writer be-
lieves that where he is placed in a position of authority, superin-
tendence, command, or control over the servant who is injured,- he
ought to be regarded as a vice-principal, and his acts and commands
ought to be regarded as those of the master; so that for his negli-
gence in acting or commanding, whereby the inferior servant is in-
jured, the master ought to pay damages. The Massachusetts statute,
with respect to the liability of the master for every act of persons
"engaged in superintendence," ought to express the rule of the com-
mon law in this particular, and does in many jurisdictions. Thus,
in Missouri, where a foreman, with servants under him, was under a
superintendent, and one of the servants was injured while obeying the
orders of the superintendent, an instruction confining the question
of the servant's orders to such as his foreman may have given him, is
improper; since, where two agents are over a servant, the latter may
obey the superior of the two, and the principal will be bound. 5

§ 3816. Ordering a Servant to Violate an Injunction or Commit a
Trespass. — There is a holding to the effect that a servant of a corpora-
tion, who does acts in obedience to its orders, which are in violation of
an injunction or amount to a trespass, the wrongfulness of which acts
is known to the corporation but not to the servant, is entitled to be
indemnified by the corporation for his consequent arrest and deten-
tion. 6 The liability of a principal or master, who knowingly, but

186; 6.C. 20 C. C. A. 381; 34U.S. App. knowing that there was a past-due

727 (experienced quarryman called train liable to meet them, without

from a safe place of work to drill informing plaintiff of the danger,

under a stone' which had seams in and the hand-car met the train at a

It, at the top of which the foreman curve where it could not be seen

was hammering upon the wedges — until it was within 500 feet of the

could see the seams and appreciate car, and the foreman had not sent

the danger as well as anyone else), a flagman forward to protect plain-

* Price v. Roy, Rap. Jud. Que. 8 tifT, it was negligence on the part

Q. B. 170 (reported in the French of the railroad company: Allison

language). v. Southern R. Co., 129 N. C. 336;

4 See ante, § 3809; post, §§ 4921, c. c. 40 S. E. Rep. 91.

4938, et seq.; and Contributory *Guirney v. St. Paul Ac. R. Co.,

Negligence of the Servant, in 43 Minn. 496; e. c. 46 N. W. Rep. 78

Vol. V. (attempting to prevent another

5 Sims v. Omaha Ac. R. Co., 89 Mo. company from constructing cross-
App. 197. So, where a track-fore- ing over defendant's tracks — error
man ordered a hand-car put on the to grant motion of defendant for
track by plaintiff and others, and judgment on pleadings setting up
ordered them to go* on the road, such facts).

VOL. 4 THOMP. NEC. — 7 97

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

without notice to his servant or agent of the liability or danger of
arrest likely to be incurred in the performance thereof, orders the
latter to do acts which are in violation of an injunction, does not de-
pend upon the ultimate determination of the question whether an al-
leged trespass by or upon the servant is or is not legally justifiable,
or as to the legality or propriety of the issuance of the injunction. 7

§ 3817. Subjecting Servant to Hostile Attack by Servants of An-
other Company. — A street-railway company is not liable for personal
injuries to a hand employed to help lay a railway-track, caused by an
attack upon the hands of such company, made by the employ& of a
hostile company in an attempt to prevent it from laying its tracks,
where the employing company did not know or have reason to believe
that any such attack was contemplated. The defendant had employed
policemen to protect its employes from an attack by the L. & N. Co. y
but the attack was made, not by such company, but by the L. Co,,
who did not make the attack while the employ6s were laying track
where they had been ordered to lay it, but only when it appeared that
they were going to lay tracks on the grounds of the L. Go., which
they had not been ordered to do. 8

§ 3818. Liability of Master for Ordering Minor Employe" into a
More Dangerous Employment. 9 — Although the employer may not have
been guilty of negligence in employing a minor in his general
service, yet if, while the minor is engagecl in such service, the em-
ployer, by himself or his foreman or other vice-principal, orders the
minor into a dangerous service, and especially without giving him
proper warning or instruction, and sometimes although it has been
given, whereby the minor is injured, the employer will be answerable
in damages. 10 A superior servant who thus orders the minor em-

7 Guirney v. St Paul &c. R. Co., 43 • See post, § 4091, et seq.

Minn. 496; s. c. 46 N. W. Rep. 78 "Railroad Co. v. Fort, 17 Wall,
(error to grant motion by defend- (U. S.) 553; s. c. 21 L. ed. 739;
ant for judgment on pleadings, such Noblesville Foundry &c. Co. v. Yea-
facts constituting a prima facie man, 3 Ind. App. 521; s. c. sub nom.
case for plaintiff). Yeaman v. Noblesville Foundry ftc.

8 Kelly v. Shelby R. Co., 15 Ky. L. Co., 30 N. E. Rep. 10; McMillan
Rep. 311; s. c. 22 S. W. Rep. 445 Marble Co. v. Black, 89 Tenn. 118;
(no off. rep.). Compare Lewis v. s. c. 14 S. W. Rep. 479. There is an
Taylor Coal Co., 112 Ky. 845; s.c. 23 untenable holding to the effect that
Ky. L. Rep. 2218; 66 S. W. Rep. a master is not liable because the
1044 (where the plaintiff averred foreman of a department of his
a contract to protect decedent from service orders a boy into a danger-
strikers, but it was held that under ous employment, wbere the foreman
the law of Kentucky a cause of ac- had no power to employ and dls-
tion for an assault does not survive, charge hands, — the court proceed-
and the contract was of no avail to ing on the view that the foreman
the administrator of decedent). and the child were fellow servants


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[2d Ed.

ploy6 out of the employment called for by the terms of his contract,
and into the more dangerous employment, is deemed not to act in so
doing as a fellow servant of the minor, but as the representative of the
master. 11 A master who has set a young and inexperienced servant
at a dangerous task, beyond his strength and skill to perform safely,

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 19 of 165)