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Commentaries on the law of negligence in all relations online

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ing a servant who was killed there-
by that a burning tree was danger-



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

§3877. Nor where the Work Consists in Making a Dangerous
Flaoe Safe. — Nor does the rule under consideration apply to cases in
which the very work the servants are employed to do consist in making
a dangerous place safe, or in constantly changing the character of
the place for safety as the work progresses. 15

§ 3878. Other Situations where the Bule does Hot Apply. — The

rule. under consideration has been held not to apply under the follow-
ing circumstances : — Where the servant was injured at a place outside
the field of his work, where he had unnecessarily gone for the pur-
pose of hanging his coat; 16 where the injury was caused by a red-hot
rail carried along by machinery, the danger of which was perfectly
obvious and known to the injured employe^ who got in the way of it
and was burned — a case of contributory negligence; 17 where, in con-
sequence of there being oil on the floor and of the place not being
lighted, an operator in a mill, familiar with the machinery and its
surroundings, slipped while passing between the machines, and threw
out his hand to save himself from falling, and it was caught in the
gearing of one of the machines ; 18 where a servant was directed to go
upon a flat roof and replace a pane of glass in a window, and he at-

ous and about to fall, the defend-
ants are not liable, as it was no
part of their duty thus to protect
the deceased, by notice of a peril
that had developed during the pro-
gress of the conflagration and which
was equally obvious to all. The
negligence, if any, on the part of
the foreman, was that of a fellow
servant: Maltbie v. Belden, 167 N.
Y. 307; rev'g s. c. sub nom.; Maltby
v. Belden, 45 App. Div. (N. Y.)
384; 60 N. Y. Supp. 824. In another
case it appeared that a master was
building a shed over the sidewalk
in front of a building in the city.
Twenty-six foot posts were placed
on the inside and on the outside of
the sidewalk, on which were fas-
tened wooden girders parallel with
the street, and boards were nailed
on such girders. The work was
done at night, in consequence of the
public use of the street in the day-
time. Two derricks were used,
which were secured by guy-lines,
some of which ran across the street,
where they were secured. About 5
a. m. a wagon struck against one
of the guys, which threw plaintiffs
servant from the top of the post
on which he was standing, and to


which he was spiking a girder. It
was held, that the master could not
escape liability under the rule that
the duty of tie master to provide
a safe place does not apply where
the place originally furnished is
safe, and becomes unsafe in the
progress of the work, or because of
the manner in which the work is
done; since it could not be said that
the place originally furnished (the
street) was safe unless it was pro-
tected by danger-signals or watch-
men- Grace Ac. Co. v. Kennedy, 99
Fed. Rep. 679; s. c. 40 C. C. A. 69.

18 Finalyson v. Utica Min. Ac. Co..
67 Fed. Rep. 507; Litchfield v. Buf-
falo Ac. R. Co., 73 App. Dlv. (N.
Y.) 1; s. c. 76 N. Y. Supp. 80 (ex-
cavation) ; post, § 4705.

"Kennedy v. Chase, 119 Cal. 637;
8. c. 63 Am. St. Rep. 153; 52 Pac.
Rep. 33.

" Illinois Steel Co. v. Paschke, 51
111. App. 456.

™ Dene v. Arnold Print Works, 181
Mass. 560; s. c. 64 N. E. Rep. 203
(the mere presence of oil on the
floor and the absence of light were
insufficient to hold the mill company
liable for negligence).

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tempted to stand upon a mullion of the window and it broke and let
him through, — the conclusion being that the rule under consideration
does not oblige a master to furnish windows on flat roofs with mul-
lions strong enough to bear the weight of a man ; 19 where an employ^
in a cotton-mill was injured in consequence of the sudden opening
of a door in a card-machine, the fastenings of which were considered
safe, such fastenings having been in use in the mill for a number of
years without producing any injury,— the conclusion being that the
owner of the mill was not negligent in failing to provide a better
fastening for the door ; 20 and in the cases referred to in the margin. 22

§ 3879. Duty of Servants to Keep Place of Work in a Safe Condi-
tion.— The same principle applies with respect to the question of a
safe place for one's servants to work, where a master sets his serv-
ants at work in a reasonably safe place, and it becomes unsafe by
reason of the manner in which they conduct the work; then, the view
now to be considered is that any injury which proceeds from such
condition of unsafety is to be ascribed to the negligence of the in-
jured servant himself or to that of his fellow servant or servants. In
a case where this principle was acted upon it appeared that the defend-
ant operated, tn connection with a quarry, a stone-crushing mill.
Stones of all sizes were dumped over a cliff, rolled by the men from
the dump to a level place at its foot, and thence carted to the mill.
Plaintiff and others had been engaged in rolling small stones over the
face of the dump, and were ordered by the superintendent to throw
certain of the stones which had accumulated on the dump, into the
road. Half-way down the dump, and opposite where the superintend-
ent was standing, was a place where had been left an overhanging
rock, and the plaintiff was directed to work several feet below it.
Before he had time to pick up a stone, the rock dropped and injured
him. It was held insufficient to justify a finding that the condition

" Saunders v. Eastern Hydraulic where railroad-rails were unloaded
Pressed-Brick Co., 63 N. J. L. 554; from a car to the charger-platform
8. c. 44 Atl. Rep. 630 (so held where of a steel-furnace) ; McCarthy v.
the servant, in removing the old Shoneman, 198 Pa. St. 568; s. c. 48
putty, placed himself in such a po- Atl. Rep. 493 (not negligence be-
sition that, when the mullion gave cause a passageway and steps there-
way under the pressure necessary in in the basement of his store,
to remove the putty, the roof afford- where an employe 1 falls, are cut out
ed him no support and he fell). of the solid earth, instead of the

" Riverside Cotton Mills v. Green, walk being made from stone, wood,

98 Va. 58; s. c. 34 S. E. Rep. 963. or cement) ; Page v. Naughton, 63

"McKenna Steel Working Co. v. App. Dlv. (N. Y.) 377; s. c. 71 N.

Lewis, 49 C. C. A. 369; s. c. Ill Fed. Y. St Rep. 503 (the fact of a floor

Rep. 320 (master not chargeable on which bags were piled, being out

with negligence for allowing a shal- of level and shaky, not evidence of

low ditch to remain near the place negligence).


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

of the dump was other than would naturally have arisen from the
acts of the plaintiff and his fellow workmen in removing the stone,
or that the superintendent knew that it involved a special hazard
which the men on the dump could not meet more intelligently than he
could, and therefore insufficient to show any reason for special and un-
usual supervision on the part of the superintendent, so that a verdict
for the defendant was properly directed. 28

§3880. Defects in Premises Leased by the Master. — Where the
premises occupied by employers were leased from a third person, and
occupied in part by other tenants, and the employers failed to keep
certain trap-doors leading to the basement of the building in proper
repair, in consequence of which one of their servants received an in-
jury, — it was held that as the employers furnished the premises as
a place in which the plaintiff was to perform his work, they could not
absolve themselves from liability for failure to keep them safe by
showing that the premises were also occupied by other tenants, and
that as to such other tenants it was the duty of the owner to keep
the premises in repair. 24

Article II. Liability for Injuries from Falling Objects.

Section Section

3882. Liability of master for in- 3884. Conditions under which rule

juries from objects falling of res ipsa loquitur not ap-

from above. plied in such cases.

3883. Application of the rule of res 3885. Circumstances under which

ipsa loquitur in such cases. employer liable.

3886. Circumstances under which
employer not liable.

§ 3882. Liability of Master for Injuries from Objects-Falling from
Above. — The obligation to use ordinary care in providing safe ma-
chinery, appliances, places of work, etc., 1 has been frequently enforced
against the master, in the form of actions for damages, where he has
so negligently constructed, inspected or repaired his machinery, ap-
pliances, premises, etc., that his servants have received injury by rea-
son of objects falling upon them from above. 2

"Roytio v. Litchfield, 113 Fed. 86 Minn. 474; s. c. 91 N. W. Rep.
Rep. 240; s. c. 51 C. C. A. 197 (un- 15.
der Massachusetts Employers' Lia- * Ante, §§ 3758, 3767.
bility Act). 'Engstram v. Ashland Iron Ac.

"Dieters v. St Paul Gaslight Co., Co., 87 Wis. 166; s. c. 58 N. W. Rep.



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§ 3883. Application of the Rule of Res Ipsa Loquitur in such
Cases. — And here the % rule of res ipsa loquitur 9 has been applied
against the master, so as to chargjfc him with liability for damages,
where some unknown object fell upon the servant while at work on •
the master's premises,— on the principle that negligence on the part
of the master ought to be inferred in such a case, since where the
master uses due care such accidents do not ordinarily happen. 4 The
application of this principle — or rather the principle itself — was de- /
nied by the Supreme Court of Michigan, in a case where a steam-
boiler fell over upon an employ6 who was working upon it in repair-
ing it, and where the action proceeded on the ground that the defend-
ant failed properly to secure and fasten it, and left it in an insecure
and dangerous position. 5 This principle has been applied so as to
charge an ice company with liability for injuries received by its em-
ploys, while engaged in his duty of pushing ice along a slide to an
ice-house, from a fall of the slide because of insufficiently-fastened
braces and its poor construction;* so as to charge a steamship com-
pany with liability for injuries received by an employ^ by the falling of
a bale of cotton which he was helping to put in the hold of a vessel, be-
cause hooks by which it was lowered were defective, when it was the |
duty of others not engaged in handling the cotton to inspect the hooks,
and he was ignorant of their condition and was obliged to use them
when furnished; 7 so as to charge an ice company with an injury re-
ceived by its employ^ through the fall of an ice-house where he was
working, occasioned either by the weakness of the structure, Or by
the pushing of ice against the house, while the house was being filled
under the direct supervision of the employer ; provided, in the latter

'As to this rule see Vol. I, § 15. • Congress Ac. St. R. Co., 49 Mich.

• Ford v. Lyons, 41 Hun (N. T.) 153; Mitchell v. Chicago Ac. R. Co.,

512. 51 Mich. 236; Stern v. Michigan

"•Toomey v. Eureka Iron Ac. Cent. R. Co., 76 Mich. 591. Certain-
Works, 89 Mich. 249; s. c. 60 N. W. ly it cannot be affirmed as a propo-
Rep. 850. The court says in its sition of law that the mere fact that
opinion, that it is the settled rule an accident has happened is evi-
in this State that the mere fact of dence of negligence.; but neverthe-
the accident is not sufficient to im- less it is true that, where the acci-
pose a liability for negligence; that dent happens under circumstances
this rule is founded in reason and that such accidents do not usually
on common sen&e; that there is happen under where the defendant
nothing in the circumstances of does the duty imposed upon him by
this case to take it out of this rule law, then the happening of the ac-
and to show negligence on the part cident is prima facie evidence of
of the defendant. To this proposi- negligence; and such, it is submit-
tion the court cites: Quincy Min. ted, was the case stated in the text.
Co. v. Kitts, 42 Mich. 34; Grand 'Fink y. Des Moines Ice Co.. 84
Rapids Ac. R. Co. v. Judson, 34 Iowa 321; s. c. 51 N. W. Rep. 155.
Mich. 506; Marquette Ac. R. Co. v. T Ocean S. S. Co. v. Matthews, 86
Kirkwood, 45 Mich. 51; Brown v. Ga. 418; s. c. 12 S. E. Rep. 632.


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4 Thomp. Neg.] ©uties and liabilities op the master.

case, the employer was found to have been negligent in allowing the
ice to be pushed against the side of the building; 8 so as to charge an
employer, where a servant was injured by the* falling of a heavy iron
beam which had been placed too near an open hole in the floor over
the place where the employ^ was at work, and left there for two or
three days in such a position that, on being pushed by a person de-
siring to pass, it toppled over and fell into the hole ; 9 so as to charge
a company operating a saw-mill for maintaining a slab-burner ninety-
five feet high and of a weak construction, and allowing the slabs to
accumulate so as to form a mass thirty feet square and forty feet
deep, causing the burner to fall by bulging out, in consequence of the
excessive heat suddenly engendered,— the employer knowing from
experience what the consequences would be. 10

§ 3884. Conditions under which Rule of Res Ipsa Loquitur Hot
Applied in such Cases. — The maxim res ipsa loquitur does not ap-
ply so as to charge the owner of a building or the employer in control
of it with liability to the injured employ^ from the mere' fact that
something falls from above, detached by some unknown person or in
some unknown way, in the absence of evidence tending to show that
anything was done by the direction of the employer which might rea-
sonably cause such fall, or that the object which struck the employ^
fell out of any portion of. the premises which the employer was bound
to keep in a safe condition. 11

§3885. Circumstances under which Employer Liable. — On the

principle above referred to, that an employer must exercise reasonable
care and skill to prevent his servant from being injured by fall-
ing objects, employers have beep held liable to their servants in
the following cases: — Where a tiler at work on a building was
struck by a hot rivet which fell from one of the upper stories .by
reason of the failure of one of the riveters to catch the same as it

•Meier v. Morgan, 82 Wis. 289; Co., 2 Misc. (N. Y.) 30; s. c. 49

s. c. 62 N. W. Rep. 174. N. Y. St. Rep. 668; 21 N. Y. Supp.

•McCauley v. Norcross, 166 Mass. 269 (defective jack used in raising

584; s. c. 30 N. B. Rep. 464. a car); Byrne v. Brooklyn City R.

"Faerber v. T. B. Scott Lumber Co., 6 Misc. (N. Y.) 441; s. c. 58

Co., 86 Wis. 226; s. c. 56 N. W. Rep. N. Y. St Rep. 577; 27 N. Y. Supp.

745. Other circumstances under 126, s. c. aff'd, 145 N. Y. 619; 40

which the employer has been held N. B. Rep. 163 (protruding boulder

liable for- negligently constructing falling from the side of a cellar in

premises, etc., so as to permit ob- process fc f excavation),

jects to fall upon his workmen: "Shields v. Robins, 12 Misc. (N.

Texas Pac. R. Co. v. Crow, 3 Tex. \Y.) 332; s. c. 33 N. Y. Supp. 639;

Civ. App. 266; s. c. 22 S. W. Rep. fe. c. aff'd, 3 App. Div. (N. Y.) 582;
928; Williams v. New York Ac. R. «8 N. Y. Supp. 214.


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was thrown to him, and such riveter testified that he watched the rivet
as it fell, and *aw it hit the tiler ;" where a shafting which had been
attached to a ceiling of a building by a carpenter the day before fell,
injuring an employ^, — it not being a detail of the work, but a per-
manent arrangement, as to which the duty of the employer could not
be delegated; 18 where an employ^ in a brewery was injured by the
fall of a beer-keg through a run in which the kegs were lowered into /
the cellar, in consequence of the rivet-holes in the rods and brackets
of the run having become enlarged by use and rust, allowing the rods
composing the run to break away from the brackets and spread, the
defect being one which could have been discovered by a proper ex-
amination; 14 where anemploy6 was injured by reason of a block of
wood falling from a conveyor, some of the lugs for holding the blocks
being broken, and the evidence showing that broken lugs sometimes
allowed the blocks of wood to fall, but that perfect lugs never allowed
them to fall, and that the employ^ had placed a block upon a broken
lug in the conveyor just before a block fell, — the evidence being deemed
sufficient to show that the block dropped on account of the lug being
broken, although no one saw it start to fall ; 16 where an employ^ just
employed, was injured by a bank of earth below which he was placed to
work falling upon him, where the bank had been undermined and
wedges driven into the top of the bank the day before, in order to
throw the earth down, and it had been left that way all night, during
which time rain had fallen, and the condition of the bank was not dis- (
cernible from where such employ^ was working, and he had been given
no notice therof ; 16 and in the case cited in the margin. 17

§ 3886. Circumstances under which Employer Hot Liable. — On the

other hand, the employer has been held not liable where his employe
was injured by the falling of a stack of zinc-spelter, in the absence
of evidence that it was carelessly built or that the employer knew or
ought to have known that it was dangerous ; 18 where the employ6 was
injured by the falling of heavy iron castings, caused in consequence of

"Pioneer Fireproof Const. Co. v. 652; s. c. 41 U. S. App. 674; 21 C. C.

Howell, 90 111. App. 122; s. c. aff'd, A. 444.

189 111. 123; 59 N. E. Rep. 535. 1T Pioneer Fireproof Const. Co. v.

"Copithorne v. Hardy, 173 Mass. Hansen, 69 111. App. 659 (subcon-

400; a. c. 53 N. E. Rep. 915. tractor had contracted with general

"Mayer v. Llebmann, 16 App. contractor for the latter to raise

Div. (N. Y.) 54; s. c 44 N. Y. Supp. tiles to be used in fireprooflng a

1067. building, the subcontractor's em-

* Shoemaker v. Bryant Lumber ployes unloading them — employs of

Ac. Co., 27 Wash. 637; s. c. 68 Pac. general contractor Injured by fall of

Rep. 380. tile — subcontractor liable).

" Thomas v. Ross, 75 Fed. Rep. u Lanyon Zinc Co. v. Bell, 64 Kan.

739; s. c. 68 Pac. Rep. 609.


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

the dangerous position in which they were piled, presumably by fel-
low servants, where the employer did not know that they were in such
a position, and a sufficient time had not elapsed to charge him with
knowledge of it; 19 where an employ^ of a warehouse was injured by
the fall of a swinging stage while removing freight from a ship, caused
by the breaking of the rope used to support one end of the platform,
which rope was furnished, in accordance with the usual practice, by
the master of the ship, who also controlled the use of the stage, al-
though the master had made no inspection of the rope, there being
nothing to indicate that an inspection was required;* where an em-
ploys was injured by the fall of a brick, presumably from the top of
a tall chimney which was cased with iron and lined with fire-brick,
the upper part of which had fallen over a few weeks before as the re-
sult of a fire, where no bricks were visible at the top of the chimney,
and no one knew that any of the bricks were loose, and the employ6
had as much knowledge of any danger as any one else had; 21 where
the employ 6 of contractors who were engaged in laying a slope re-
taining-wall upon the bank of a canal was injured by the fall, without
any apparent cause, of a heavy stone from the bank above, although
the contractors had told the teamster who hauled the stone to unload
them as near the edge of the bank as he could without having them
roll over; 22 where an employ^ of a railway company was injured by
the fall of a plank or iron plate, which was an ordinary appliance
of sufficient length, width, and strength, and which was reasonably
safe, extending between a station platform and a freight-car, while
the employ^ was assisting to unload the car, although the plank was
not supplied with hooks or fastenings in order to prevent it from
slipping from its place, and although it was shown that it had fallen
on other occasions ; 28 where a quarry-man was employed with a large
number of others, in getting out stone from a quarry on a hillside, aild
a rock which had been loosened, probably by some previous blast, fell
on him, fatally injuring him ; 24 where an employ6 of the owner of a
building, engaged in putting wood in the cellar, was injured by the
fall of ice and snow from the roof, although the eaves projected so

"Reed v. Boston Ac. R. Co., 164
Mass. 129; s. c. 41 N. E. Rep. 64.

" Moynihan v. King's Windsor Ce-
ment Ac. Co., 16S Mass. 450; s. c. 47
N. E. Rep. 425.

*Ptlucki v. Detroit Steel Ac.
Works, 117 Mich. Ill; s. c. 5 Det
Leg. N. 160; 75 N. W. Rep. 295
(court says nothing about defend-
ant being under any duty to inspect


the chimney after part of it had
fallen — case badly decided).

a Rhodes v. Lauer, 32 App. Div.
(N. Y.) 206; s. c. 53 N. Y. Supp.
162; 87 N. Y. St. Rep. 162.

M D'Arcy v. Long Island R. Co.,
34 App. Div. (N. Y.) 275; 8. c. 54
N. Y. Supp. 553.

^Trapasso v. Coleman, 74 App.
Div. (N. Y.) 33; s. c. 76 N. Y. Supp.


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that snow was more likely to accumulate' on the roof in a large mass,
than was the case with other buildings in the neighborhood; 25 where
the employ^ having the power to select the implement which he will /
rise from a large number, some of which are perfect and some of which
imperfect, selects an imperfect one; 26 where a workman was injured
by the giving way of a rope used for hoisting, in consequence of its be-
ing worn, the unsoundness of the rope being apparent and the master
having supplied new rope which the workman could have put into use
at any time ; 27 where, in using an apparatus for hoisting ice, the hand
of an employ^ was drawn into a gin-wheel by reason, as he claimed, of
its having been hung low and because the machinery was not stopped
at the proper time, where it did not appear that it could have been
hung higher, and where proper arrangements were made for stopping
the rope; 28 where the defect which caused the object to fall was so
recent as not to raise a reasonable inference that the employer knew
of it, or would have discovered it in the exercise of a proper inspection,
and there was no evidence that he knew of it ; w where an employ6 at
work upon a coal-dock was injured by coal emptied upon him from an
unlatched bucket, — the court holding that no action could be main-
tained on the ground that the employer should have provided a cover-
ing for the workmen stationed or passing beneath the buckets, when
it did not appear that such a covering was ever used upon similar
docks and its practicability was not shown ; 80 and in the cases cited in
the margin. 81

"Dugal v. Peoples Bank, 34 N. B. 77 Hun (N. Y.) 559; s. c. 60 N. Y.
581. The reasoning of the court was, St. Rep. 282; 28 N. Y. Supp. 918.
that while the owner would be lia- "Prybilski v. Northwestern Coal
ble for negligently allowing snow R. Co., 98 Wis. 413; s. c. 74 N. W.
and ice to accumulate on such roof, Rep. 117 (master's duty "was to
yet he can build his building In any furnish a place as safe and free
style he pleases, so that it does not from danger as other persons of or-
become a nuisance or a violation of dinary care, prudence and caution,
a municipal ordinance. The style engaged in like business and in
adopted is not negligence per se, like circumstances, ordinarily fur-
but may impose a greater degree of nish").

care and watchfulness to prevent n Chapln v. Walsh, 37 111. App.

accidents. 526 (employ 6 of ice company not al-

M Bemi8ch v. Roberts, 143 Pa. St. lowed a recovery against the owner

1; s. c. 28 W. N. C. (Pa.) 169; 21 of premises at which he was de-

Atl. Rep. 998; 48 Phila. Leg. Int. liverlng ice, for an injury caused

305; post, § 4003. by the falling of an appliance pro-

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 25 of 165)