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Commentaries on the law of negligence in all relations online

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"Cregan v. Marston, 126 N. Y. vided by the ice company, and at-

568; s. c. 38 N. Y. St. Rep. 428; 27 tached by employg to an appliance

N. E. Rep. 952; post, § 4003. in the wall for hoisting the ice,

"Carbury v. Downing, 154 Mass. where the owner of the premises

248; s. c. 28 N. E. Rep. 162. did not know that the wall or fas-

* Oehme v. Cook, 28 N. Y. St. Rep. tenings were unsafe, although he

12; s. c. 7 N. Y. Supp. 764. Some- refused to allow the employs to use

what to the same effect, see Mickee an elevator which he had used on a

t. Walter A. Wood Mowing Ac. Co., previous occasion); Evans v. Vogt

VOL. 4 THOMP. WBG.— 10 145

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

Article III. Man-Traps, Trap-Doors, Unlighted Premises,
Passageways, Hidden Dangers.

Section Section

3888. Duty of master to prevent or 3891. Instances where the master

guard man-traps, trap- was exonerated.

doors, and other hidden 3892. Furnishing insufficient lights

dangers on such premises. or negligently allowing

3889. Passageways, walks, etc. them to become extin-
3890; Dangerous stairways. guished.

§ 3888. Duty of Master to Prevent or Guard Han-Traps, Trap-
Doors, and Other Hidden Dangers on such. Premises. — This duty of the
master extends to preventing the premises whereupon he requires his
servant to work, from containing dangerous pitfalls, obstructions or
other man-tr.aps into which his servant is liable, unguardedly, to fall
while his mind is absorbed in the duties of his employment. 1 Under

&c. Man. Co., 6 Misc. (N. Y.) 330;
s. c. 55 N. Y. St. Rep. 212; 25 N. Y.
Supp. 509 (employ 6 injured by the
fall of something upon him as he
was passing up a ladder at his work
on an unfinished building) ; Reilly
v. Parker, 11 Misc. (N. Y.) 68; s. c.
31 N. Y. Supp. 1014; 65 N. Y. St.
Rep. 108 (employ 6 at work on a
temporary structure composed of
wooden horses and planks, over
which servants of another employer
attempted to carry a heavy beam;
the additional weight causing one
of the legs of a "horse" to sink into
the ground, thereby tilting it and
throwing plaintiff down and caus-
ing the beam to fall upon him).

1 Chicago Ac. R. Co. v. McNamara,
94 111. App. 188 (servant injured at
night in consequence of a part of a
floor being taken up and an insuf-
ficient and unsafe one being left in
its place); Armour v. Czischki, 59
111. App. 17 (servant slipped upon
glue scattered on the floor and fell
through an unguarded opening
therein into a crushing-machine) ;
Hess v. Rosenthal, 55 111. App. 324;
s. c. affM, 160 111. 621; 43 N. E. Rep.
743 (employe set to work to rake out
the contents of a cylindrical tank
more than five feet in diameter and
three feet high, through a door less
than a foot wide, with a space two
feet eleven inches wide on each side
of the center of the door to stand
upon, with a vat filled with boiling
tallow immediately adjoining and


covered by a lid liable to be mis-
placed, or so constructed that a step
of the laborer might precipitate
him into the vat) ; Muncle Pulp Co.
v. Jones, 11 Ind. App. 110; s. c. 38
N. E. Rep. 547 (employer negligent
In having a large hole in a third-
story floor where employes are set
at work, covered with rotten can-
vas, without any guard around it,
or any warning to the employes of
its existence); Indiana Pipe-Line
Ac. Co. v. Neusbaum, 21 Ind. App.
361; s. c. 5 Am. Neg. Rep. 126; 1
Repr. (Ind.) 500; 52 N. E. Rep. 471
(employer left open and unguarded
a well on his premises on a dark
night within ninety-one feet of a
tent within the same enclosure, in
which fifty people were lodged and
fed) ; Powers v. Calcasieu Sugar
Co., 48 La. An. 483; s. c. 19 South.
Rep. 455 (open ditch of scalding
water, with no railing or guard to
prevent accidents, maintained on
master's premises) ; Musick v. Ja-
cob Dold Packing Co., 58 Mo. App.
322 (hot- water tank under a floor of
a pork establishment, left un-
covered and unguarded, into which
employe" slipped) ; Irmer v. St.
Louis Brew. Co., 69 Mo. App. 17
(the obligation which the general
law imposes upon the owner of
premises to guard persons lawfully
there against pitfalls, applies be-
tween master and servant); Boyle
v. Degnon-Mcl^ean Const. Co., 61 N.
Y. Supp. 1043; leave to appeal de-

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this rule, an employer, the owner of a vessel, has been held liable to
the servant of a master stevedore for injuries received by falling
through a small trimming-hole left unguarded in a dark place where
such servants might be expected to go for the purpose of changing
their clothes; 2 to an "oiler" on a ferry-boat, who, while assisting as
ordered, in putting a freight-boat into commission, sustained injuries
from falling into an open hatchway which was invisible because of
the darkness, he being wholly unacquainted with the construction of
a freight-boat, and with a custom to leave the hatchway open when a
boat is out of commission; 8 to a carpenter employed to work on the
upper deck of a vessel, who hid his tools below at night, and when
going to get them fell into a bunker-hole. 4 And a master has been
held liable for injuries to his servant caused by the falling of an ele-
vated footway which he used in his work, the support of which had^
been forced out of place by a passing wagon, when it was so con-
structed that such an accident ought to have been anticipated ; 5 and
for an injury to his servant from falling into a pit containing a dan-
gerous 6haft, caused by the absence of a barrier along the 6ide of a
plank-walk extended over it. 6 Where a trap-door in premises in which
the plaintiff was working was defective, in that the hinges thereon
were insufficient, and an injury was caused thereby to the plaintiff,
it was a question for the jury whether the failure to furnish proper
hinges was negligence on the part of the master or not. 7

nied, 63 N. Y. Supp. 1105 (un-
covered hole on an elevated trestle
within seven feet of the place where
employes were working, seven feet
long and' four feet wide, through
which a fall might prove fatal, —
employer has no right to expose his
employes to such a risk in the ab-
sence of light sufficient to disclose
Its presence); Eastland v. Clarke,
165 N. Y. 420; 6. c. 59 N. E. Rep.
202; rev'g s. c. 51 N. Y. Supp. 1140
(servant not well acquainted with
premises injured by stepping into
an uncovered hole in a cellar — evi-
dence as to whether the cellar was
a reasonably safe place to work be-
ing conflicting, question held to be
for the jury) ; Raftery v. Central
Park Ac. R. Co., 14 Misc. (N. Y.)
560; s. c. 35 N. Y. Supp. 1067; 70
N. Y. St. Rep. 693 (employe fell
through a flooring formed partly of
glass and partly of wood, the whole
of which was covered by dust, and
the nature thereof unknown to him,
upon which he was directed to go

without warning by the employer's

•The Protos, 48 Fed. Rep. 919.

•Brown v. Ann Arbor R. Co., 118
Mich. 205; s. c. 76 N. W. Rep. 407;
5 Det. Leg. N. 484.

*Belford v. Canada Shipping Co.,
35 Hun (N. Y.) 347.

•Sellick v. Langdon, 59 Hun (N.
Y.) 627; s. c. 37 N. Y. St. Rep. 511;
13 N. Y. Supp. 858.

•Bennett v. Standard Plate Glass
Co., 158 Pa. St 120; s. c. 27 Atl.
Rep. 874.

T Dieters v. St. Paul Gaslight Co.,
86 Minn. 474; s. c. 91 N. W. Rep.
15. The cover of a trap-door in de-
fendant's offices was flush with the
floor, when in position, and fitted
so tightly that it could only be
opened by prying. It containsuf- after the employe's had left the

flcient light). building, and one to be kept burn-

"Sawyer v. Rumford Falls Paper ing day and night, in the absence

Co., 90 Me. 354; s. c. 38 Atl. Rep. of any showing as to the cause of

318. the extinguishment of the lights at

n Grace &c. Co. v. Kennedy, 99 the time of the accident; and where

Fed. Rep. 679; s. c. 40 C. C. A. 69. the employe is familiar with the

M Hilje v. Hettich, 95 Tex. 321; custom of storing such "wheelers"
s. c. 67 S. W. Rep. 90; rev'g s. c. in the passageway. The passageway
sub nom. Hillje v. Hettich (Tex. was always lighted, but, unknown
Civ. App.), 65 S. W. Rep. 491 (no to the employer, the lights, from
off. rep.). It has been held that an some unknown cause, were sudden-
employer is not liable to an em- ly extinguished: Dorney v. O'Neill,
ploye* for injuries sustained by the 34 App. Div. (N. Y.) 497; s. c. 54
latter in encountering an obstruc- N. Y. Supp. 235; 5 Am. Neg. Rep.
tion (a basket on wheels, or a 229. On a second appeal in the same


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

Article IV. Elevators in Buildings.

Section Section

8894. Negligence of master with re- 3902. Master under what duty of in-

spect to elevators in build- spection.

ings, hoisting-apparatus, 3903. Care required in the construc-

etc. tion, repair, and operation

8895. With respect to his own serv- of freight-elevators.

ants bound only to ordi- 3904. Negligence in permitting de-
nary or reasonable care vator-shafts to remain open
and skill. and unguarded.

8896. Which is a. care proportionate 3905. Negligence in operating ele-

to the risk. vators.

8897. Master not excused because 3906. Violation of statutes and mu-

negligence was that of an nicipal ordinances respect-
independent contractor. ing elevators.
3898. Nor because the defect was 3907. Injuries to volunteers, to in-
due to the negligence of his termeddlers, to licensees,
lessor. etc.

8899. Injuries from elevators where 3908. Notice to what servant of a

master was held liable. defect in an elevator binds

8900. Instances where - the master the master.

was held not liable. 3909. Whether the fall of an ele-

3901. Failure to equip elevator with vator is prima facie evi-

safety-clutches or automatic dence under the rule of res

brakes. ispa loquitur.

§ 3894. Negligence of Master with Bespect to Elevators in Build-
ings! Hoisting-Apparatus, etc. — That modern device, called in Amer-

case, it appeared that plaintiff was sonably safe means of egress from
injured, while passing through a the premises, as was his duty:
dark hall in a building in which he Dorney v. O'Neill, 49 App. Div. (N.
had been employed but a short Y.) 8; s. c. 63 N. Y. Supp. 107;
while, by a twig, which projected s. c. on third appeal, 60 App. Div.
from some debris loaded on a (N. Y.) 19. A longshoreman en-
"wheeler" (a basket on wheels) gaged in unloading one of def end-
stored in the hall, being driven into ant's ships in port, was directed to
his eye. Plaintiff knew that wheel- go below deck by the steerage-way,
ere were stored in some parts of which led through a dark passage,
the hall, but had never seen them and while going through such pas-
at the place he was hurt, nor had sage he fell through a trap-door
any information that they were that had been left open, and was
ever loaded with debris. Employes injured; the steerage being outside
were prohibited from bringing the usual place of employment for
matches into the building, as well longshoremen, and only used be-
as from leaving before the dismis- cause the ladder usually used was
sal-bell rang, and it was shown that out of repair. It was held that it
every evening when the dismissal- was the duty of the steamship com-
bell rang, the lights were turned pany to furnish the longshoreman
out in that part of the building with a safe place to work, and the
through which plaintiff had to pass passage referred to did not meet
in going out It was held to require that requirement: Sansol v. Com-
a submission to the jury of the pagnie Generate Transatlantique,
question whether the master had 101 Fed. Rep. 390.
furnished the employs with a rea-


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ica an elevator, in England a lift, and in Prance an ascenseur, em-
ployed for transporting persons and freight from one floor to another
in high buildings, is from its nature a very dangerous contrivance when
not properly constructed and operated. Where it is employed to carry
persons other than servants of the owner of the building, he is re-
garded by some courts, but not by others, as sustaining substantially
the relation toward the persons whom he thus carries, of a common
carrier of passengers ; and, consequently, in favor of such persons, he
may or may not, according to the theory which prevails in the par-
ticular jurisdiction, stand responsible for the same strict degree of
care which the law puts upon railway and other passenger carriers. 1

§ 3895. With Bespect to his*Own Servants Bound Only to Ordinary
or Seasonable Care and SkiH. — In favor of his own servants, however,
the rules and analogies of the law require no more than what is called
ordinary or reasonable care and skill. 2

§ 3886. Which is a Care Proportionate to the Bisk — But here, as
elsewhere, 8 this reasonable care is a care proportionate to the risk
which is run ; and as the risk to life is enormous — almost absolute —
from the falling of one of these machines, it must follow that, even
under the rule of reasonable care, the owner of the building will be
held to a very exact diligence in the construction and inspection of it. 4

§ 3887. Master Not Excused because Negligence was that of an
Independent Contractor. — Here, as in other cases, the duty of the
master to exercise this ordinary or reasonable care is primary and
absolute in the sense that he cannot devolve it upon another. 5 The
owner of the building is not absolved from the exercise of this care
by entrusting the care of the elevator to an independent contractor,
through whose negligence an injury happens to the servant of the
owner. 6

1 Vol. I # ft 1078, et seq. weeks before he was injured did not

■ Sievers v. Peters Box Ac. Co., 151 relieve his master from the obliga-

Ind. 642 ; s. c. 8 Am. St Eng. Corp. tion of using reasonable care to keep

Cas. (N. S.) 629; 50 N. B. Rep. 877; it safe).

rehearing denied, 151 Ind. 662; 1 'Vol. I, § 25; ante, § 3772.

Rep. (Ind.) 420; 52 N. E. Rep. 399 'See, as supporting the text in

(freight-elevator); Wilson v. Wil- substance, Wise v. Ackerman, 76

lianas, 22 Ky. L. Rep. 567; s. c. 58 S. Md. 375; s. c. 25 Atl. Rep. 424. See

W. Rep. 444 (no off. rep.) (duty to also, McGregor v. Reid &c. Co., 178

exercise ordinary care both in con- 111. 464; s. c. 6 Am. Neg. Rep. 28;

struction and operation); Larkin 53 N. E. Rep. 323; rev'g 8. c. 76 111.

v. Washington Mills Co., 61 N. Y. App. 610; 3 Chic. L. J. Wkly. 299.

Supp. 93; s. c. 45 App. Div. (N. Y.) B An*e, 5 3874.

6 (knowledge of servant that the •Bartley y. Trorllcht, 49 Mo. App.

automatic gate in front of an ele- 214.

vator was out of order for three


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

§ 3898. Nor because the Defect was Due to the Negligence of his
Lessor. — Nor will it be any defense that the master was the lessee of
. the building, and received the elevator from his lessor, where an in-
jury received by its falling is traceable to the master's want of care
in inspecting it and keeping it in repair. 7

§ 3899. Injuries from Elevators where Master was held Liable. —

Under the operation of these principles, a master has been held liable
in damages to his servant for an injury c&used by the failure of the
master to replace a cable in use on an elevator by which his servants
were required to ascend an electric-light tower, or to make an ex-
amination of it after a notification that it had become broken and
ragged ; 8 for an injury to a servant in consequence of the rotten con-
dition of the beams upon which rested the axles or journals of the
main wheel or pulley over which the elevator-cable ran; 9 for an in-
jury happening to a servant-girl in a hotel, who was obliged, in her
work, to use a freight-elevator, which was a marble platform with
iron guards on the sides which did not reach to the floor, but left
space enough for a foot to pass under them, wfiere at the time of the
accident it had swayed to one side and tilted over, and she was thrown
down and her foot passed under the guard, injuring it, — such an
elevator being, in the opinion of the court, unfitted for the safe trans-
portation of human beings ; 10 for an injury produced by the stopping
of an elevator from causes with respect to which the evidence was
conflicting, the plaintiff's evidence tending to show that it worked
loosely and had stopped before the accident, which took place with
the plaintiff aboard, when moving downward, when it came to a stop

f Bartley v. Trorlicht, 49 Mo. App. elevator of which he has the use,

214; Oberfelder v. Doran, 26 Neb. and which he requires or permits

118, s. c. 41 N. W. Rep. 1094. But employes to use, by the claim that

in one case the lessee was exoner- he did not lease the elevator, and

ated from damages to his employes did not control that portion of the

for injuries caused by the falling of building where the propelling power

a freight-elevator having no safety- was located: Frolich v. Cranker, 21

clutch, where the premises had Ohio C. C. 615; s. c. 11 Ohio C. D.

been in his possession for a short 592.

time only, and he did not know g Weiden v. Brush Electric Light

there was no clutch, and the lack Co., 73 Mich. 268; s. c. 41 N. W.

was not so obvious as to be readily Rep. 269.

seen on examination: Hansen v. 'Oberfelder v. Doran, 26 Neb. 118;

Schneider, 58 Hun (N. Y.) 60; s. c. s. c. 41 N. W. Rep. 1094.

33 N. Y. St. Rep 811. An employer "Makinnie v. Kilgallon (Pa.), 11

who is the lessee of the third floor Atl. Rep. 614 (no off. rep.). Com-

of a building cannot avoid his duty pare Montgomery v. Bloomingdale.

and responsibility as such to his 34 App. Div. (N. Y.) 375; s. c. 54

employes, and refuse to inspect or N. Y. Supp. 329 (where, under a

neglect to make examination of the similar state of facts, a recovery

condition of the machinery of an was denied).


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of its own accord, while the drum and the machinery continued to
work, causing the rope to uncoil, soon after which the elevator fell,
injuring the plaintiff; 11 for an injury to a servant due to the fact
that a spring intended automatically to lower a gate in front of the
shaft of an elevator which was used by a servant while acting as
porter had been left out of repair by the defendant for three weeks
after being notified of it and prior to the accident; 12 for an injury
to an elevator-boy caused by the elevator suddenly falling from an
upper floor and crushing him, while he was engaged in cleaning out
the elevator-shaft, as he was required to do by a rule of the defend-
ant, — the evidence showing that the elevator had long been out of
repair and that the defendant had knowledge of its condition, and
knew that it had fallen before; 18 for an injury to a servant who was
injured by the falling of an elevator which had been in use eleven
years, did not work well, had no counter-weights, and parts of the
machinery containing old breaks which could be discovered only by
taking it apart ; 14 for an injury to an employ6 produced through a fall
of a freight-elevator, although it had been repaired by an expert,
where it was of a class of poor elevators, and the manager knew of
defects in it which were not repaired at all; 15 and for injuries dis-
closed by the cases further cited in the margin. 16

§ 3900. Instances where the Master was held Not Liable. — On

the other hand, the master was held not liable for injuries to the
servant under the circumstances disclosed by the following cases: —
Where an elevator-boy fifteen years of age, who "knew all there was
to do with the elevator," was injured by a 6udden starting of it when

"Here it was held that, even if viously defective, although not ap-

the stopping of the elevator, and parently dangerous, hut took no

not its falling, was the proximate steps to ascertain whether it was in

cause of the injury, there was still fact safe) ; Necker v. Harvey, 49

sufficient evidence to show negli- Mich. 517 (action by the servant of

gence in the defendant: . Kleibaz v. B. against A., the maker of an ele-

Middleton Paper Co., 180 Mass. 363; vator, for an injury sustained in

s. c. 62 N. E. Rep. 371. loading an elevator under the direc-

u Larkin v. Washington Mills Co., tion of a servant of A/s in order to

61 N. Y. Supp. 93; s. c. 45 App. Div. make it work); Boyd v. Blumen-

(N. Y.) 6. thai, 3 Pen. (Del.) 564; s. c. 52 Atl.

"Leland v. Hearn, 63 N. Y. Supp. Rep. 330; Delaney v. Hilton, 50 N.

204; s. c. 29 App. Div. (N. Y.) 111. Y. Super. 341; Skelley v. Crutch-

M Bartley v. Trorlicht, 49 Mo. App. field, 17 Pa. Super. 198 (elevator

214. known to be dangerous and ordered

10 Goggin v. Osborne, 115 Cal. 437; to be used by employes only for

s. c. 47 Pac. Rep. 248. carrying freight — destitute of safe-

10 Union Show Case Co. v. Blin- ty-appliances, etc. — fell and carried

dauer, 75 111. App. 358; s. c. aff'd, an employe, who was using it as

175 111. 325; 51 N. E. Rep. 709 (mas- directed, to the cellar below),
ter knew that the elevator was ob-


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

he was leaning against a beam of it tying his shoe, — it having been
started by an employ^ whom the injured elevator-boy had previously
instructed as to the manner of starting and stopping it; 1T where it
appeared that, for some unexplained reason, the boy in charge of an
elevator failed to stop it at the right floor, and it passed without
diminishing its speed to the basement floor, but did not fall; and it
further appeared that it was inspected" a few hours before the acci-
dent and found to be in good condition, and was in good condition
immediately after the accident; that, a year before, it had failed to
stop, whereupon the boy in charge of it at the time was cautioned,
and there had been no further difficulty in its management until the
accident in question ; and that, after the accident, the automatic de-
vice intended to operate in case of excessive speed, but not at the
usual speed, which was the speed at the time of the accident, was
adjusted to act at a less degree of speed; 18 and in the ether cases
cited in the margin. 19

§ 3901. Failure to Equip Elevator with Safety-Clutches or Auto-
matic Brakes. — The device of safety-clutches or automatic brakes
which will catch and hold an elevator in case of a fall or rapid descent
caused by the breaking of the rope, is a precaution of such obvious
necessity that its omission ought to be held prima facie evidence of
negligence in every case, and conclusive evidence unless the master
excuses the omission to the satisfaction of the jury. In any action
grounded upon this defect it ought, however, to appear to the rea-
sonable satisfaction of the jury that if the clutches or automatic brake
had been on the elevator and had worked, the disaster would have
been thereby prevented. 20

1T Sullivan v. Lally, 166 Mass. 265; which had all appliances except an

s. c. 44 N. E. Rep. 221. unusual automatic stop, — the use of

"Spees v. Boggs, 198 Pa. St. 112; the holster having been rented by

s. c. 47 Atl. Rep. 875. the plaintiff's masters, who were

"Kirby v. Rainier-Grand Hotel contractors for the marble-work of

Co., 28 Wash. 705; s. c. 68 Pac. Rep. the building, from another con-

378 (no evidence to support allega- tractor).

tions in the petition) ; Duffy v. Wil- "Where the evidence showed that
Hams, 71 App. Div. (N. Y.) 110; 8. the safety-clutch on the rear side
c. 75 N. T. Supp. 600 (state of of the elevator was off at the time
cause in which a workman was in- of the accident; and that the shaft
jured by a hod-hoister, which failed carrying the clutch on the front
to stop at a designated floor, but side was at one time broken down
flew up to the top of the shaft; and at one end, and that subsequently ,
it was held that his employers were though a bolt was put in to hold
not liable for the accident, being re- up the end of such shaft, it still re-
sponsible neither for the negligence mained disconnected with the
of the engineer employed by the spring by which it was operated;
owner of the hod-hoister nor for the that the spring and clutches were
construction of the holster, which rusty and not in working order;
was not shown to be defective, and and that if the clutches had worked


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Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 26 of 165)