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Commentaries on the law of negligence in all relations online

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516 (accident caused by a belt-ship-
per slipping from repairer's greasy
hand, and not by the absence of a
catch which would have had to be
fastened after the belt was shifted;
belt failed to stop at loose pulley,
but by the impetus given it went on
to a fixed pulley, starting the ma-
chinery and injuring an assistant) ;
Breen v. St. Louis Cooperage Co.,
50 Mo. App. 202 (no evidence that
the looseness of a shaft in its jour-
nal had any effect upon its safety,
or that any effect upon its safety
should have been foreseen and
guarded against by the master) ;
White v. Bidlitz, 38 App. Div. (N.
Y.) 149; s. c. 56 N. Y. Supp. 629;
s. c. on former appeal, 19 App. Div.
(N. Y.) 256 (act of foreman in al-
lowing plaintiff to use a material-
elevator in a building in process of
construction was not negligence,
where it was in good condition and
safe if properly used; and where
the elevator struck some planks
placed across the shaft at an upper
story, causing it to descend, and the
noise frightened plaintiff and
caused him to jump, and it was not
shown that defendant was re-
sponsible for the presence of the
planks, the defendant was not lia-
ble) ; Kruse v. Chicago &c. R. Co.,
82 Wis. 568; s. c. 52 N. W. Rep. 755
(evidence failed to show that
injury in coupling cars was due to
the difference in height of the
draught-irons; but tended to show
negligence of engineer in backing
with increased speed without sig-
nal — recovery on latter ground only
under a statute) ; Craven v. Smith,


89 Wis. 119; s. c. 61 N. W. Rep. 317
(no recovery if an injury is solely
the result of a coemployG's negli-
gence, or if it is not caused directly
by the dangerous character of the
work, or if, under the circum-
stances, he ought to comprehend the
danger, or if the injury is directly
caused or contributed to by his
own lack of ordinary care).

"Craven v. Smith, 89 Wis. 119;
s. c. 61 N. W. Rep. 317; McDonald
v. Crystal Plate Glass Co., 9 Mo.
App. 577 (mem.).

8 Vol I, § 168, et seq.

♦Vol. I, § 75; post, § 4856, et seq.

8 Malott v. Hood, 99 111. App. 360
(efficient cause of Injury to a brake-
man while making a coupling was
the absence of the handholds re-
quired by Act of Congress, combined
with the slippery condition of the

•Vol. I, § 43, et seq.

T Schumaker v. St. Paul &c. R.
Co., 46 Minn. 39; s. c. 12 L. R. A.
257; 48 N. W. Rep. 559. So, in the
application of the rule of respond-
eat superior, a person is liable for
an injury to which the negligence
of his employ^ has contributed, al-
though the negligence of another
person also contributed to the in-
jury: Lipp v. Otis Bros., 28 App.
Div. (N. Y.) 228; s. c. 51 N. Y.
Supp. 13 (negligence of elevator
contractor's superintendent in turn-
ing steam into an exhaust-pipe full
of water without seeing whether its
drip-valves were open, blowing
scalding water and steam out at
the top and scalding a stone-cutter,
although the steam-plant contract-

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[2d Ed.

sider where the injury would have happened to the servant but for
the negligence of the master with respect to the concurrent act or
omission of the third person. Thus, where a servant was injured be-
cause of a defective appliance which the master should have repaired,
the latter was not relieved from liability because a proximate cause of
the accident was the act of a third person, if it would not have oc-
curred but for the failure to repair. 8 Where, in a suit for personal
injuries due to defective machinery, it appears that the defect (insuf-
ficiently-protected knives) was due to the defendant's negligence
and was the immediate cause of the injury, the fact that the initial
and moving cause was the plaintiff's slipping on the floor, in which
respect the defendant was not negligent, will not preclude a re-
covery. 9 In the manner, where the evidence was sufficient to sup-
port a finding that the negligence alleged was a proximate cause of an
injury to a servant, without which the injury could not have occurred,
it was error not to submit the case to the jury, though another defect
was also a proximate cause of such injury. 10 On the other hand, a
master cannot be held liable for an injury to a servant due to the
combination and cooperation of a number of causes for no one of which
he was liable; that is, there must be negligence on the part of the
master. 11

§ 3858. Rule where Negligence of Master Concurs with Negligence
of Fellow Servant. — As will be seen hereafter, 12 in jurisdictions where

ors may have been negligent in al-
lowing the pipe to be used before it
was capped with an exhaust-head >;
s. c. rev'd for error in admitting
improper evidence* 161 N. Y. 557;
30 Civ. Proc. Rep. (N. Y.) 270.

•Larkin v. Washington Mills Co.,
45 App. Div. (N. Y.) 6; 8. c. 61 N.
Y. Supp. 93 (defective automatic
gate used to close an elevator-shaft,
which failed to close when the ele-
vator was moved by an employe" on
another floor, whereby plaintiff was
precipitated, with a load he was
pushing, into the shaft).

• Swift & Co. v. Holoubek, 60 Neb.
784; s. c. 84 N. W. Rep. 249; s. c.
on rehearing, 62 Neb. 31; 86 N. W.
Rep. 900 (case in 60 Neb. reversed
judgment for plaintiff for supposed
errors in instructions, but on re-
hearing the instructions, consid-
ered in connection with others,
were held proper, and a remittitur
of damages ordered, upon which
judgment would be affirmed).

" Scandell v. Columbia Const. Co.,

50 App. Div. (N. Y.) 512; s. c. 64 N.
Y. Supp. 232; 98 N. Y. St. Rep. 232
(evidence tended to show that der-
rick-boom fell because appliances at
the top of the spar were unsuitable
when furnished or had been negli-
gently allowed to become and re-
main so, as alleged; and the fact
that an eyebolt at the throat of the
boom was found to be broken after
the accident, and that negligence
was not predicated thereon, did not
justify the court in dismissing the

u Carswell v. Wilmington, 2
Marv. (Del.) 360; s. c. 43 Atl. Rep.
629; 14 Am. & Eng. R. Cas. (N. S.)
625 (fireman driving to fire at night
at a speed greater than that al-
lowed by ordinance to everybody,
whereby he fails to watch where he
is going or to see or hear danger-
signals, and falls Into a trench be-
ing dug by the city, is guilty of con-
tributory negligence, which pre-
cludes a recovery for his death).

"Post, § 4856, etseq.


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

the so-called "fellow-servant doctrine" prevails, if the negligence of
the master concurs with the negligence of one of his servants in pro-
ducing an injury to another servant, the master will be liable provided
the injury would not have occurred but for the master's negligence.
But where the injury is produced by the negligence of a fellow serv-
ant, commingling with some act or neglect of the master which can-
not be imputed to him as negligence, then the master is not liable.
Thus, an employer who furnishes necessary and safe tools and appli-
ances is not liable for injuries to an employ^ if such tools are not em-
ployed in th6 work, or are unskillfully employed, through the negli-
gence or want of skill of the foreman, who is the fellow -servant of
the workmen under him in respect to the mode adopted for doing
work. 18

§ 3859. Bule where Negligence of Master Concurs with Negli-
gence of Third Person. — A master will be liable in damages to his
servant for an injury visited upon the servant by the negligence of
the master, although the negligence of a third person 14 cooperates
with that of the master. 15

§ 3860. Circumstances under which the Question whether the Neg-
ligence of the Master was the Proximate Cause of the Injury, is a
Question for the Jury. — Where the evidence in a suit for injuries tends
to establish the fact that the injury received by the plaintiff was caused
by a set-screw projecting from the collar of a shaft, which collar was at
a place where it did not belong, and that he had been directed to do
some work near the collar by a vice 1 principal of the master, it was a
question for the jury whether negligence of the defendant was to be
considered as the proximate cause of the injury. 16

"Cleveland Ac. R. Co. v. Brown, aff'g a. c. (Tex. Civ. App.), 55 S. W.

73 Fed. Rep. 970; *. c. 20 C. C. A. Rep. 803 (no off. rep.).

147; 34 U. S. App. 759 (negligence "Ante, § 3857.

of foreman in tearing down a rail- "Regan v. Sargent Co., 98 111.

way transfer-shed). See also, Gal- App. 617. In an action by a switch-

veston &c. R. Co. v. Sherwood (Tex. man to recover for injuries sus-

CIv. App.), 67 S. W. Rep. 776 (no tained while in the discharge of his

off. rep.) (plaintiff and a fellow duties, it appeared that he received

servant ordered to carry a 160- an injury while at the switch,

pound timber; plaintiff had lifted through the negligence of the en-

his end to his shoulder, and was in- gineer, after which, as the engine

jured by reason of his fellow serv- came by slowly, he stepped on the

ant dropping his end on attempting running-board at the front of the

to lift it to his shoulder, it being engine. Another switchman, ac-

too heavy for him, as was or should companying the engine, saw the

have been known to the defendant's plaintiff, who had fainted from his

foreman). injuries, falling from the running-

14 Galveston Ac. R. Co. v. Adams, board, and gave the engineer a sig-

94 Tex. 100; s. c. 58 S. W. Rep. 831; nal to stop; but the engine was not


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§ 3861. Illustrative Cases where the Negligence of the Master was
the Proximate Cause of the Injury, or Presented a Question for the
Jury. — The negligence of the master was either regarded as being, in
a juridical sense, the proximate cause of the injury, or the evidence
presented a question of fact for the jury whether it was so or not, in
the following cases: — Where a train-hand, while on top of a box-car
in the night-time, lost his balance, caused by the sudden moving of
the train, and in attempting to regain his balance, struck his foot
against a bolt negligently allowed to protrude from the top of the car,
and was injured, — the condition of the bolt being regarded as the
proximate cause of the injury; 17 where a railway switchman was
knocked off a ladder maintained on the side of a freight-car, in pass-
ing a post in the railroad-yards, — the conclusion being that the posi-
tion of the ladder on the side of the car was the proximate cause of
the accident; and, such a position of the ladder being forbidden by a
statute, the switchman did not assume the risk ; 18 where a mine-owner
leased a level having an ore-tramway running to a shaft, so con-
structed that an escaping car would run into the shaft, which was
operated by the owner for the benefit of the lessee, and an employ^
of the lessee, without being guilty of negligence, allowed a car to run
into the shaft and injured an employ^ of the owner, — the negligent
construction of the tramway with an excessive grade and without
barriers being deemed the proximate cause of the injury; 19 where
a railway sectionman, while assisting in removing a wreck from the
track under the direction of his superiors, was injured by a flying

stopped until it had cut off such after he was Injured, the engi-
8witchman'B leg, after which it neer, not being able to see him,
backed and cut oft his other leg. was not negligent in running the
It was held that the defendant was engine upon him If he did not re-
liable for the second injury only celve a signal in time to stop; but
In the event the engineer was negli- when he was under the engine, and
gent after he had notice of the It had stopped, the engineer was
plaintiff's peril; and if he did not guilty of gross negligence in back-
have such notice until after one of ing the engine without knowing
plaintiff's legs was crushed, the de- where he was, and without a signal
fendant was not liable for injuries from another switchman to do so,
to that leg, but defendant was liable especially after the other switch-
If the Injury to the plaintiff's other man urged him to stop, and told
leg was inflicted after notice to the him plaintiff was under the engine:
engineer of his peril, if it happened Illinois Ac. R. Co. v. Stewart, supra.
by reason of pros* negligence: Illi- 1T International Ac. R. Co. v.
nois Ac. R. Co. v. Stewart, — Ky. Bayne, 28 Tex. Civ. App. 392; s. c.
— ; s. c. 23 Ky. L.. Rep. 637; 63 S. W. 67 S. W. Rep. 443.
Rep. 596. In the case just cited it "Kilpatrick v. Grand Trunk R.
appeared that, the plaintiff having Co., 74 Vt. 288; s. c. 52 Atl. Rep.
fainted from loss of blood resulting 531.

from a previous injury, and having "Union Gold Mln. Co. v. Craw-
fallen from the running-board of ford, 29 Colo. 511; a. c. 69 Pac. Rep.
the engine upon which he had got 600.


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

fragment of a car, — the accident resulting from the derrick-chain be-
ing fastened by the direction of the agents of the company in an im-
proper and negligent manner and place, — such negligent fastening
being regarded as the proximate cause of the injury, entitling the
plaintiff to recover. 20 The negligent failure of a railway company to
furnish a car-repairer in its employ with transportation from the scene
of a wreck back to his home, or to any other place where he could
obtain food and shelter, whereby it became necessary for him to walk
nine miles, in the night-time and in dangerously cold and severe
weather, to the nearest point where he could obtain food and shelter, —
was the proximate cause of the sickness, pain, and disability resulting
to him from such walk. 21

§ 3862. Illustrative Cases where the Negligence of the Master
was Hot the Proximate Cause of the Injury. — The fact that a switch-
engine leaked steam so badly as to prevent the engineer from seeing
a signal to stop made by a switchman, who had caught his foot in a
frog, and who was run over and injured, was not deemed to be the
proximate cause of the injury, where it appeared' that the cars were
so close to the man when the signal was given that they could not
have been stopped in time to prevent the accident, even if the signal

30 Reed v. Missouri &c. R. Co., 94
Mo. App. 371; s. c. 68 S. W. Rep.

* Schumaker v. St. Paul &c. R.
Co., 46 Minn. 39; s. c. 12 L. R. A.
257; 48 N. W. Rep. 559. Where the
rule of a railroad company provided
that block-lights at its stations
should show red at all times,
against which trains could not pro-
ceed except when a white signal was
given, a conductor being required to
know the rules, and knowing that
the train would stop or start as the
engineer observed the light to be
white or red, — the absence of a rule
requiring a signal by whistle or
otherwise before stopping or start-
ing a train could not be regarded
as the proximate cause of an in-
jury to the conductor, who was
thrown off by such stopping or
starting; the change in the color of
the lights giving him full notice:
Crawford v. New York &c. R. Co.,
23 Ohio C. C. 207; affg s. c. 12
Ohio Dec. 17 (light showed red
and train slackened speed; it
changed to white before train
had completely stopped, and the
train started up again. Conductor


was told by a brakeman that the
light was white, and knew the train
would not stop under such circum-
stances). Where the defendant's
servant was carrying a tub of mor-
tar weighing fifty or sixty pounds
up a ladder which was not properly
secured, and collided with an iron
girder, causing the ladder to slip,
and the tub fell on and killed
plaintiff's intestate, who was in the
employ of another person, it was im-
material whether the tub was
thrown from the servant's shoul-
der by the force of the blow, or
he involuntarily dropped it under
the influence of pressing danger,
since in either event the proxi-
mate cause ' of the accident was
not the fall of the tub, but was
his act in ascending the ladder
with the tub and permitting the
tub to collide- with the girder;
and the question of defendant's
negligence should have been sub-
mitted to the jury, which might
properly have found the act to be
negligent: Monahan v. Bidlitz, 59
App. Div. (N. Y.) 224; s. c. 69 N. Y.
St. Rep. 335.

Digitized by



had been seen and obeyed. 22 Failure of a yardmaster to properly
make up a train, and to inspect the cars and remedy the condition of
the angle-cock and the air-hose of one of the cars, is too remote to
furnish a ground of recovery against the company by a freight-con-
ductor, for injuries sustained, in attempting to close a defective angle-
cock while rearranging the train and putting the air cars together,
by the engine pushing the cars against the one he was working upon. 23

Article X. Presumptions and Burden op Proof in Actions
Grounded on Injuries to Servants.

Section Section .

3864. General presumption in favor 3866. Further of presumptions and

of master. burden of proof.

3865. What the servant must prove

to overcome this presump-

§ 3864. General Presumption in Favqr of Master. — In an action
by an employ^ against his employer for injuries sustained by the
former in the course of his employment, from defective appliances, the
presumption is that the appliances were not defective ; and when it is
shown that they were, then there is a further presumption that the em-
ployer had no notice or knowledge of this fact, and was not negligently
ignorant of it. In like actions for injuries sustained by reason of in-
competent fellow servants, the presumption is that the fellow servant
was not incompetent, and that the master was not negligent in employ-
ing him or retaining him in his employment. 1 Therefore, in such
actions, the onus probandi is upon the plaintiff to negative these pre-
sumptions, in order to make out a prima facie case. la

"Hunt v. Kane, 100 Fed. Rep. laundry. When the pressure of the

256; s. c. 40 C. C. A. 372. feet on the treadle was relieved

**St. Louis &c. R. Co. v. Nelson, the machine was at once thrown

20 Tex. Civ. App.' 536; s. c. 49 S. W. out of gear, and the rollers sepa-

Rep. 710. The failure to fence off rated and ceased their motion after

an unused part of a mine, as re- a few revolutions. In operating the

quired by statute, does not render machine the clothing which' was be-

the owner of the mine liable for the lng ironed became wrapped about

death of a miner killed by an ex- the roller of the machine, and while

plosion therein, where he was sent endeavoring to disengage it, with-

into such unused part to perform out removing her feet from the

certain work therein and the fail- treadle, her hand was drawn be-

ure to fence It off did not in any tween the rollers and burned. It

degree tend to cause the explosion: was held that the pressure of her

Grant v. Acadia Coal Co., 34 Nov. feet on the treadle of the machine

Sco. Rep. 319. An employ^ in a was the cause of her injury, and

laundry was at work on an ironing- that she could not recover: Doo-

machine which was operated by the little v. Pfaff, 92 111. App. 301.

pressure of her feet on a treadle * See post, § 4906, et seq.

throwing it into gear, and under *a Davis v. Detroit &c. R. Co., 20

control of the power operating the Mich. 105; Wright v. New York Ac.


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

§ 3865. What the Servant must Prove to Overcome this Presump-
tion. — To establish negligence in cases of this kind, the plaintiff must
prove either that the master had undertaken personally to superintend
and direct the works, or that the persons employed by him were not
proper and competent persons, or that the materials were inadequate,
or the means and resources unsuitable to accomplish the work. The
onus is upon him ; and failing to do so, he fails tp establish negligence. 1
This principle is clearly pointed out by Lord Cranworth, in the lead-
ing Scotch case in the House of Lords, which has constantly been
quoted as expounding the law of England equally with that of Scot-
land : "Where an injury is occasioned to any one by the negligence of
another, if the person injured seeks to charge with its consequences
any person other than him who actually caused the damage, it lies on
the person injured to show that the circumstances were such as to
make some other person responsible." * "It is not enough," said Mr.
Justice Willes, "for the plaintiff to show that he has sustained an in-
jury under circumstances which may lead to a suspicion, or even a
fair inference, that there may have been negligence on the part of the
defendant ; but he must go on and give evidence of some specific act of
negligence on the part of the person against whom he seeks compen-
sation." 4 A servant, in order to recover for defects in the appliances
of the business, must establish that the appliance was defective ; that
the master had notice thereof, or knowledge, or ought to have had;
and that he did not know of the defect, and had not equal means of
knowing the same with the master. 5

§ 3866. Further of Presumptions and Burden of Proof. — It need

not be said that the master is entitled to the benefit of the presump-

R. Co., 25 N. T. 562; Kansas Ac. R. 6c. R. Co., 32 Md. 411. In Greenleaf

Co. v. Salmon, 11 Kan. 83; s. c. 14 v. Illinois &c. R. Co., 29 Iowa 14, it

Kan. 512; Central R. &c. Co. v. Sears, is held that the employe* Is not

59 Ga. 436; s. c. 5 Reporter, 494; bound to do more than raise a rea-

Central R. Ac. Co. v. Kelly, 58 Ga. sonable presumption of negligence

107; Central R. Ac. Co. v. Kenney, on the part of the employer.

58 Ga. 485; Nolan v. Shickle, 3 Mo. 'Huddleston, B., in Allen v. New

App. 300; Duffy, v. Upton, 113 Mass. Gas Co., 1 Bxch. Div. 254.

544; Murphy v. St. Louis Ac. R. Co., 'Bartonshill Coal Co. v. Reld, 4

4 Mo. App. 565; Colorado &c. R. Co. Jur. (N. S.) 767.

v. Ogden, 3 Colo. 499; Summerhays *Lovegrove v. London Ac. R. Co.,

v. Kansas Ac. R. Co., 2 Colo. 484; 16 C. B. (N. S.) 692; s. c. 33 L. J.

Mobile Ac. R. Co. v. Thomas, 42 Ala. (C. P.) 329. To the same effect,

672; Way v. Illinois Ac. R. Co., 40 see Cotton v. Wood, 8 C. B. (N. S.)

111. 341; Columbus Ac. R. Co. v. 568; s. c. 1 Thomp. Neg. (1st ed.),

Troesch, 68 111. 545; s. c. 57 111. 155; p. 364; Feltham v. England, L. R.,

Beaulieu v. Portland Co., 48 Me. 2 Q. B. 33.

291; Atlanta Ac. R. Co. v. Campbell, "Garden City Wire Spring Co. v.

56 Ga. 586; Wonder v. Baltimore Boecher, 94 111. App. 96.


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[2d Ed.

lion that be has performed his duty, until the contrary appears ;• and
the burden is on the servant to show the contrary by a preponderance
of evidence. 7 The master is not compelled to show the cause of the
accident, or that it was not caused by himself or by any person in his
employ for whose conduct he is responsible.* In an action to re-
cover damages from a railroad company for injuries to an employ^
by the alleged faulty construction of a split switch, the plaintiff must
show, not only the way in which it was constructed, but that such
construction was not of a proper and approved kind, or, if of a proper
and generally approved kind, that the one complained of was im-
properly made. 9 The burden is on an employ^, suing for injuries
from a defective drawbridge operated by a city, to show that he re-
lied upon and was induced to remain at work by a promise to repair,
made by some one authorized to bind the city thereby. 10 The burden
of establishing that the servant assumed the risk is upon the master. 11
With respect to contributory negligence, the contradiction among the
authorities is set out in Volume I. 1 *

•Cahill v. Hilton, 106 N. Y. 5*2;
s. e. 13 N. E. Rep. 339; Pennsylva-
nia Co. v. Whitcomb, 111 Ind. 212;
s. c. 9 West. Rep. 827; 12 N. E. Rep.
380, and authorities cited (pre-
sumption that master furnished
such cars as might have been safely
coupled by the use of a coupling-
stick, the use of which the rules re-
quired); Pellerin v. International
Paper Co., 96 Me. 388; s. c. 62 Atl.
Rep. 842 (presumed to have com-
plied with the obligations resting
upon him equally with other men,
and not to have been guilty of

T Boyd v. Blumenthal, 3 Pen.
(Del.) 564; s. c. 52 Atl. Rep. 330.

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 23 of 165)