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Commentaries on the law of negligence in all relations online

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DIt. (N. Y.) 6 (distinguishing Mc- the question of the negligence of

Carthy v. Washburn, 58 N. Y. Supp. his employer: Conlin v. Rodgers,

1125; s. c. 42 App. Div. (N. Y.) 39 N. Y. St. Rep. 51; s. c. 14 N. Y.

252). Supp. 782; 44 Alb. L. J. 153. See

•Vol. Ill, S 2754. also, Kirby v. Rainier-Grand Ho-

•Read, as an example of the tel Co., 28 Wash. 705; s. c. 69 Pac.


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4 Thomp. Xeg.*] duties and liabilities of the master.

have even gone to the extent of affirming the proposition that an
employe* suing for injuries from a defective elevator is bound, in ad-
dition to showing that the elevator was out of repair, to prove that
the employer negligently suffered it to be so; since it might have
been out of repair under circumstances which did not impute negli-
gence to the employer. 47

Article V. Excavations, Ditches, Construction op Sewers, etc.


3915. Criminal negligence of a

gang-boss in excavating.

3916. Injuries to servants in the

construction of sewers.

3917. Unguarded and unsafe exca-

vations, ditches, etc.


3912. Liability of masters to serv-

ants for injuries from the
caving in of embankments
in excavating.

3913. Further of this liability.

3914. Cases of injuries in excavat-

ing where the employer
was exonerated.

§ 3912. Liability of Masters to Servants for Injuries from the Cav-
ing In of Embankments in Excavating. — A master who puts his serv-
ant at work in a trench or other excavation, stands under the obliga-
tion of exercising reasonable care to the end that the place is kept
safe. This obligation refers itself to the general duty of a master
to exercise reasonable care to the end of furnishing his servant with
a safe place in which to work. 1 As already seen, 2 this duty is primary,

Rep. 378. Nor, in the view of an-
other court, could the employe* re-
cover where no cause of the acci-
dent was shown except the break-
ing of the clamp holding the hoist-
ing-cable, which was not shown to
be insufficient or defective: Law-
son v. Merrall, 69 Hun (N. Y.)
278; s. c. 53 N. T. St. Rep. 424; 23
N. Y. Supp. 560.

47 Moran v. Racine Wagon Co., 74
Hun (N. Y.) 454; s. c. 57 N. Y.
St Rep. 198; 26^N. Y. Supp. 852
(but evidence of its falling, in the
absence of evidence that anyone
had negligently left it without
throwing off the power, will war-
rant a finding by the jury that it
was out of repair; *ut they could
not infer negligence from such a
state of facts). A servant was
killed, owing to the fall of an ele-
vator, and, in an action for the
death, plaintiff claimed that the
master had been negligent in not
inspecting the elevator. The evi-
dence showed that at the time of


the accident the elevator was in
good repair, and, while there was
evidence justifying an inference
that the fall might have been oc-
casioned by the breaking of a bolt,
there was no evidence that an in-
spection of the bolt could have led
to the discovery of any defect It
was held that the evidence did not
show negligence on the part of de-
fendant contributing to the injury:
Stackpole v. Wray, 74 App. Div. (N.
Y.) 310; s. c. 77 N. Y. Supp. 633.

x Schmit v. Gillen,*41 App. Div.
(N. Y.) 302; s. c. 58 N. Y. Supp.
458 (failure to sheathe sides of
trench over six feet deep, the only
supports being braces, which were
insufficient on account of the char-
acter of the soil); Ross V. Shanley,
158 111. 390; s. c. 56 N. E. Rep.
1105; aff'g s. c. 86 111. App. 144
(clay came from a point between
the end of the tunnel and the end
of the shoring, which was sprung

8 Ante, § 3874.

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absolute, and unassignable ; it is personal to the master, and the master
is therefore responsible for the negligence of whatsoever person to
whom he commits the performance of it. A master who employs a
servant in the construction of a cistern cannot, therefore, avoid lia-
bility for the death of the servant caused by the collapse of the cistern
by reason of the insufficiency of its walls,, on the ground that he acted,
in adopting the plans of the excavation, on the advice of an architect
whom he believed to be competent. The reason is that he is responsi-
ble for any negligent error on the part of the architect. 8 The doctrine
under consideration is well illustrated by a holding to the effect that
a city engaged through its engineer in building a sewer, is liable for
injuries sustained by a day-laborer by the fall of the arch while he
was taking down the supports at the order of the engineer, which the
engineer negligently ordered to be done before the cement had hard-
ened sufficiently, unless the danger was so obvious that a prudent
person, though acting in the capacity of a servant, would not have
obeyed the order. 4

Further of this Liability. — It is the x duty of an employer
who is making an excavation, to provide reasonable means for shoring
up the walls of the excavation, to the end of securing the safety of
his servants there employed ; and if he fails to provide such adequate
means he will be liable in damages to a servant injured by such fail-

' Sneda v. Libera, 65 Minn. 337;
a. c. 68 N. W. Rep. 36.

'Shortel v. St. Joseph, 104 Mo.
114; s. c. 16 S. W. Rep. 397. In an-
other illustrative case it appeared
that an excavation for the founda-
tion of a building was made at the
side of a high chimney, and cuts
were made under the foundation of
it, and filled with masonry, to sup-
port it. The evidence tended to
show that the cuts did not extend
up to the bottom of the foundation
of the chimney, by about a foot,
which interval was filled with
nardpan, which had become inse-
cure from the action of water, to
the master's knowledge, and which
fell on a servant working in the
cuts, which were not shored up. It
was held that the question
whether the master had provided
a reasonably safe place for the
servant to work was properly sub-
mitted to the jury: Finn v. Cas-
sidy, 165 N. Y. 584; s. c. 59 N. E.
Rep. 311; affg s. c. 39 App. Div.

(N. Y.) 640; 57 N. Y. Supp. 1138.
In another case, the plaintiff, while
In defendant's employ as a com-
mon laborer, was injured by the
caving in of a trench in which he
was laying water-pipes', the sides of
which were unshored and unsup-
ported; the evidence tending to
show that the defendant had not
furnished any material for such
purpose. There was evidence tend-
ing to show that the nature of the
soil, the depth of the trench, and
the manner in which it was dug,
were such as to render the sides of
the trench dangerous, and that the
defendant was on the spot, and had
an opportunity to observe its con-
dition. It was held to warrant a
finding that the plaintiff was in-
jured by the negligence of the de-
fendant in failing to see that the
place was reasonably safe, or to
furnish materials to make it so:
Bartolomeo v. McKnight, 178 Mass.
242; s. c. 59 N. E. Rep. 804.


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

ure. B But upon the question of the extent to which the servant him-
self assumes the risk of the falling of the embankment, there is a
division of opinion,— one court holding that the servant may recover
damages, although he was experienced and regarded the bank as
safe, and gave no notice to the master of its dangerous condition;*
while another court holds, and with better reason, that if the danger
is so obvious as to be perceived by an ordinarily observant man, and
the servant continues to work without any assurance from his master,
he takes the chances of injury, and in case it happens the master is
exonerated; 7 and clearly this is so where the servant is better ac-
quainted with the nature and extent of the danger incurred than the
master is. 8 If the bank caves in through the existence of a defect
unknown to the employer, and not discoverable by any . inspection
within his means, he will not be liable, — as where it is produced by
the bursting of a water-pipe running parallel with and within two
feet of the wall of the excavation. 9 But in Massachusetts, the employer
is not liable if he furnishes his employes with suitable materials and
means for sheathing or shoring up the sides, and the materials are
not used for that purpose by the person employed by him to superin-
tend the digging of the trench.? This decision does not, however,
express the general law ; but the majority of American courts would
hold that the negligence of such superintendent was the negligence
of the employer. 11 Under the Employers' Liability Act of the same

•Texas Ac. R. Co. v. French (Tex.
Civ. App.) f 22 S. W. Rep, 866.

•O'Driscoll v. Faxon, 156 Mass.
527; s. c. 31 N. B. Rep. 685.

'Aldrldge v. Midland Blast Fur-
nace Co., 20 S. C. 559.

'Fairmount Cemetery Assn. v.
Davis, 4 Colo. App. 570; 8. c. 36
Pac. Rep. 911. See further as to this
question, post, § 4822, et seq. ' Cir-
cumstances under which a con-
tractor, who personally superin-
tended the work of excavating
for a sewer, became liable for
the death of an employg by the
caving in of the bank, due to
the accumulation of excavated dirt
on the edge, the danger on account
of which the employ^ was unable
to see or appreciate. because of the
depth of the sewer in which he was
working: Koosorowska v. Glasser,
8 N. Y. Supp. 197. Circumstances
under which it was held that the
contractor for the construction of
a sewer is under the duty to the
employes of a subcontractor for the

brick-work, to prepare the trench
so as to make it reasonably safe:
Johnston v. Ott, 155 Pa. St. 17; s.
c. 25 Atl. Rep. 751.

•Hoskins v. Stewart, 57 Hun (N.
T.) 380; s. c. 32 N. Y. St. Rep. 962;
10 N. Y. Supp. 833.

10 Floyd v. Sugden, 134 Mass. 563.

11 Ante, § 3874, 3912. Whether
the foreman of a gang of laborers
employed in shovelling earth into
cars in a cut is negligent in direct-
ing such laborers to proceed with
the work of loading, without first
throwing down an overhanging
bank, where the foreman had tried
to throw the bank down with a
crowbar the day before the acci-
dent, and where plaintiff, on being
ordered to work under it, called
the foreman's attention to it. and
the foreman, going on the bank, re-
plied that it was safe, and repeated
the order, — was held a question for
the jury: Haas v. Balch, 56 Fed.
Rep. 984; s. c. 48 Alb. L. J. 327:
6 C. C. A. 201.


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State, 12 the failure of an employer properly to shore up an excava-
tion is not a defect in 'Tiis ways, works, or machinery/' such as will
make him liable for an injury to his employe. 18

§ 3914. Cases of Injuries in Excavating where the Employer was
Exonerated. — Where the only evidence of a master's negligence in
failing to provide a reasonably safe place for a servant to work was
the testimony of a workman that, after blasting, nothing was done
in the way of inspection, while the foreman of the blasting-gang
testified that, after the blasting in question, everything loose or dan-
gerous had been barred down and was safe when he left, and the fore-
man of the cleaning-gang to which the servant belonged, testified
that an unsuccessful effort had been made with bars and derrick to turn
or pull over the rock which fell and caused the injury, it was held
not error to dismiss the complaint at the close of the case. 14

§3915. Criminal Negligence of a Gang-Boss in Excavating. — A

gang-boss having no discretion in fulfilling his employer's orders as
to the construction of a ditch, and who has in no respect failed to
comply with the orders received, is not guilty of criminal negligence
resulting in the death of a workman upon the ditch by the careening
of a railway structure at the side of the ditch, owing to the length
of the sections in which the ditch was dug, and the lack of sufficient
braces. 15

§ 3916. Injuries to Servants in the Construction of Sewers. — An

employer engaged in constructing sewers is liable to an employ6 for

u Mass. Stat. 1887, ch. 270, § 1, engineer, nor the foreman in charge

cl. 1. of the work, saw any necessity of

u Lynch v. Allyn, 160 Mass. 248; sheathing where the accident oc-

s. c. 35 N. E. Rep. 550; post, {4559, cur red, and the only evidence of

et seq. such necessity being apparent was

"Capasso v. Woolfolk, 163 N. T. that of an alderman, by trade a
472; s. c. 57 N. E. Rep. 760; rev'g hatter, who told the foreman prior
s. c. 25 App. Div. (N. Y.) 234; 49 to the accident that the trench
N. T. Supp. 409. This case obvi- needed sheathing, — it was held that
ously* ought to have been submitted negligence was not imputable to
to the jury. The court evidently the city, though sheathing might
. decided the case by weighing the have prevented the accident: Far-
conflicting evidence, as courts of rell v. Middletown, 56 App. Div.
that State often do, ignoring the (N. Y.) 525; s. c. 67 N. Y. Supp.
dividing line between the province 483. For another case where the
of courts and Jury. In another de- court held there was no evidence to
cision in the same State of some- go to the jury on the question of
what the same nature, where it ap- defendant's negligence, — see Quinn
peared that an employ^ of a city, v. Baird, 49 App. Div. (N. Y.) 270;
injured by the caving in of a trench s. c. 63 N. Y. Supp. 235.
in which he was working, had been * Thomas v. People, 2 Colo. App.
engaged in that work for threfc or 513; s. c. 31 Pac. Rep. 349.
four years, and that neither he,
nor his coemployes, nor the city ^67

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4 Thomp. Xeg.J duties and liabilities of the master.

injuries sustained because of his failure to use means known to the art
to remove carbonic-acid gas, which would necessarily accumulate at
the bottom of the trench; and this although the employ^ and his
companions undertook to finish the excavation in a certain time at a
fixed daily sum. 16 The construction by a city of a sewer is a minis-
terial work, and it will be liable for an injury to one employed by it
in such construction, caused by the careless or unskillful manner of
performing the work. 17 A city cannot escape liability for injuries to
one of its employes engaged in constructing a sewer, caused by the
unskillful manner of performing the work, on the ground that the
city itself, through its superintendent of streets, constructed the
sewer, instead of letting out the contract to the lowest bidder as re-
quired by its charter; since, as it was given power to. establish and
regulate sewers, it was acting within the general scope of its power in
constructing the sewer, and was doing an act lawful in its nature,
although done in an unlawful manner. 18 •

§ 3917. Unguarded and Unsafe Excavations, Ditches, etc. — Where
a railway company, knowing that an employ^ would have occasion in
the performance of his duty to go past a ditch at night, the presence
of which was not known to him, placed no covering or guard at the
ditch, relying on the presence of an electric street-light near the place
to excuse it from such precautions, it was not entitled to an instruc-
tion that, though the lights near the excavation were not sufficient to
make it obvious, it was not negligent if an ordinarily prudent person
would have left the ditch without guards; since the evidence shows
conclusively that the company was negligent. 19

"Dagenais v. Houle, Rap. Jud. gence; since the duty it owed such

Que. 11 C. S. 225 (in French). employ^ cannot be determined from

"Donahoe v. Kansas City, 136 the point of view of the servants

Mo. 657; s. c. 38 S. W. Rep. 571. who dug the ditch: Missouri &c.

"Donahoe v. Kansas City, 136 R. Co. v. Johnson, supra. The
Mo. 657; s. c. 38 S. W. Rep. 571; plaintiffs testator was engaged
citing Norton v. New Bedford, 166 wuh other stonemasons in build-
Mass. 48; s. c. 43 N. E. Rep. 1034 ing a retaining-wall Some distance
(where it was held that irregular- from where a ditch was being dug
ity in the proceedings was no de- in which a conduit of masonwork
fense to such an action, as making was to be constructed. Testator
the construction of the sewer un- had never worked on the conduit,
lawful). and had no knowledge as to the

"Missouri Ac. R. Co. v. Johnson condition of the excavation. De-

(Tex. Civ. App.), 67 S. W. Rep. fendant's superintendent • ordered

769 (no off. rep.); s. c. aff'd, 95 Tex. the foreman of the stonemasons to

409; 67 S. W. Rep. 768. That the direct them to go to work in the

employ §8 who dug the ditch acted conduit, which the foreman re-

as ordinarily prudent persons in fused to do on the ground that the

leaving it unguarded, except by the bank was unsafe, whereupon the

street-light, cannot relieve the com- superintendent himself ordered the

pany from liability for its negli- masons to go into the ditch, and


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Article VI. Explosions.


3919. Care of dynamite.

3920. Explosion of powder mills.

3921. Furnishing employ^ with iron

instead of wooden rod for
2922. Drilling holes containing un-
exploded charges.

3923. Subsequent explosion of un-

exploded blast.

3924. Failing to provide adequate

means of escape from a
blast about to be fired.

3925. Fall of stone from the side

of a quarry caused by

3926. Explosions of steam-boilers

and their connections.

3927. Further of this subject.

3928. Rule where the proprietor di-

rects the construction of
the boiler according to his
own plan.


3929. What inspections and tests

in the case of steam-boil-

3930. Right of employer to rely

upon certificate of public

3931. Failing to use a fusible


3932. Evidence on which employers

have been held liable in
the case of explosions* of

3933. Pleading in actions for in-

juries in explosions of

3934. Relevancy of evidence in such


3935. Explosions of gas.

3936. Injuries to employes in other


§ 3919. Care of Dynamite.— The fact that dynamite is a highly
dangerous material which is liable to explode from obscure causes,
does not operate to impose upon an employer who uses it in his work
a higher theoretical degree or standard of care than that which is de-
scribed as reasonable or ordinary. But here, as elsewhere, 1 this is a
care proportionate to the danger to be apprehended and avoided ; and
it has been described as that ordinary care which reasonable and pru-
dent men would and do exercise tinder like circumstances. 2 A Cana-

plaintiff's testator was injured by
the falling of the bank. It was held
that such facts Justified a finding
that defendant did not provide a
safe place for plaintiff's testator to
work, to the knowledge of the su-
perintendent: Eichholz v. Niagara
Falls Ac. Co., 68 App. Div. (N. Y.)
441; s. c. 73 N. Y. Supp. 842. An
employer was not liable for injury
to employ^ caused by the fall of
ensilage ten feet- deep resulting
from the latter's undermining the
same, although the former directed
the work to be done by undermin-
ing instead of by taking from the
top: Welch v. Brainard, 108 Mich.

38; s. c. 2 Det. Leg. N. 805; 65 N.
W. Rep. 667 (danger obvious — risk

*Vol. I, § 26; ante, § 3772.

"Schwartz v. Shull, 45 W. Va.
405; 8. c. 5 Am. Neg. Rep. 496; 31
S. E. Rep. 914. According to a de-
cision of the Court of Appeals of
Virginia, the reasonable care re-
quired of an employer in provid-
ing appliances, methods of work,
and means of safety for its em-
ploye's in thawing dynamite, is not
such care in adopting reasonably
safe appliances, methods, etc., as is
commensurate with the danger to
be reasonably apprehended there-


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

dian court has taken the sound view that an employer whose failure
to provide a building especially for the thawing out of dynamite cause*
the death of an employ^ by the explosion of dynamite while being
thawed, is not relieved from liability on the ground that it would
have been difficult and costly to provide a building especially for
the purpose. 3 The propriety and necessity of protecting dynamite
under a roof is emphasized by an American decision which holds that
the exposure of dynamite to the weather for two months, thereby
rendering its explosive character extra-hazardous, within a few feet
of the entrance to defendant's mine, where plaintiff and other em-
ployes were daily required to pass, constituted evidence of negli-
gence justifying the trial court in refusing to grant a nonsuit. 4

§ 3920. Explosion of Powder Mills. — The care which the proprietor
of a powder mill owes to his employes at work therein to the end of
avoiding explosions, while theoretically described as ordinary care or
reasonable care, is, as in other cases, 6 a care proportionate to the dan-
ger to be avoided, which in this situation is necessarily a very high
and exact degree of caution and attention. Nevertheless, as such ex-
plosions generally kill all persons in the vicinity, thereby destroying
all evidence of the cause or causes which produced them, it is diffi-

from, but only such ordinary care
as reasonable and prudent persons
will use under like circumstances
In thawing dynamite: Bertha Zinc
Co. v. Martin, 93 Va. 791; s. c. 22
S. E. Rep. 869; 2 Va. Law Reg.
938. But this cannot possibly be
sound; since reasonable care must
necessarily be a care commensu-
rate with the danger to be appre-
hended from such work as thawing

* Durand v. Asbestos Ac. Co., Rap.
Jud. Que. 19 C. S. 39.

*Myrberg v. Baltimore Ac. Re-
duction Co., 25 Wash. 364; s. c. 65
Pac. Rep. 539 (exposure to the
weather causes the nitroglycerin to
condense and collect, instead of re-
maining diffused through the ab- .
sorbent material in which the ex-
plosive material is contained).
Where a servant was entrusted by
hi 8 master with the use and care of
powder and dynamite used in blast-
ing, and placed them without per-
mission in a blacksmith-shop, to
preserve them from rain, the mas-
ter was held liable to a person
working in such shop, employed by

the owner thereof, and injured by
their explosion, caused by sparks
from an anvil; such servant's act.,
if done with the intention of pre-
serving the explosives, being in
furtherance of his master's busi-
ness; but the master would not
be liable if the servant so dis-
posed of the explosives for some
purpose of his own: Birmingham
Water-Works Co. v. Hubbard, 85
Ala. 179; s. c. 4 South. Rep. 607; 7
Am. St. Rep. 35. Where, in an ac-
tion by a servant against a master
to recover for an injury caused by
the explosion of nitroglycerin,
manufactured by defendant, it was
an undisputed fact that the nitro-
glycerin exploded spontaneously,
and there was evidence tending to
show that if pure and properly
made it would not so explode, but
that it would if impure, it was held
not error to charge that, if the Jury
found such to be the fact, then a
presumption of impurity arose
from the fact of the explosion:
Bradford Glycerine Co. v. Riser, 113
Fed. Rep. 894; s. c. 51 C. C. A. 524.
•Vol. I, § 25; ante, § 3772.

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ctilt in many, perhaps in most cases, to determine whether to ascribe
them to the negligence of the employer or of his vice-principal, or to
that of the servant for whose death the action is brought, or to
that of a fellow servant, or to inevitable accident attendant upon so
dangerous an employment. On principles elsewhere considered, 6 a
person accepting employment in such a dangerous business assumes
the risk of the dangers incident to the employment, but not the risk
of those dangers which spring from the special negligence of the em-
ployer or of those for whose conduct he is responsible. 7

§ 3921. Furnishing Employ* with Iron instead of Wooden Rod for
Tamping. — An employer is guilty of negligence in furnishing the em-
ployes engaged in blasting rock with dynamite an iron rod for tamp-
ing, where he knows the great danger attending the use of such a rod,
and that the danger is greatly diminished by tamping with a wooden
rod ; and the employ^ injured is ignorant of the danger. 8

Drilling Holes Containing TTnezploded Charges. — In an

action for personal injuries received from the explosion of powder in

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 28 of 165)