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Commentaries on the law of negligence in all relations online

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Co. v. DuBois, 65 111. App. 142. Co., 46 La. An. 1535; s. c. 16 South.

" Service v. Shoneman, 196 Pa. Rep. 400.


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in failing to have it properly inspected, and whether its explosion was
due to an excessive pressure of steam or to its defective condition, were
for the jury. 89 It has been quite well held that a mining company
which puts into service, where it must be connected with the same
steam-pipe that other larger and stronger boilers are connected with,
an old boiler that had been repaired eleven months before with the
express purpose of using it for about six months for a special pur-
pose which did not require its connection with other boilers or the
use of high pressure, the company knowing that the boiler would
stand only a low pressure, — is liable for an injury to an employ^ ♦
caused by its explosion the first day after such connection. 40 Whether
the superintendent of a fruit-canning factor}' in which a barrel is
used for heating water with steam is guilty of negligence towards an
employ^ in the factory injured by the explosion of the barrel, in
failing to observe, while turning on the steam, that a plug has been
inserted by some one in the pipe in the top of the barrel from which
the steam escapes, where such plug is in plain view, and the superin-
tendent knows that the barrel has not been used for several weeks, and
the duty of inspection rests upon the superintendent, — is a question
for a jury. 41 In a leading case of this nature, in New York, the

"Glossen v. Gehman, 147 Pa. St.
619; s. c. 30 W. N. C. (Pa.) 40; 23
Atl. Rep. 843.

*■ Johnson v. Boston 6c. Mln. Co.,
16 Mont 164; a. c. 40 Pac. Rep. 298.

41 Crowell v. Thomas, 18 App. Div.
(N. Y.) 520; s. c. 46 N. Y. Supp.
137. In another case defendant con-
structed an addition to its paper-
mill, and placed steam-pipes there-
in, which were connected with the
boiler and pipes in the old mill, and
a new engine in the new mill. No
valve was supplied to shut off the
steam from the new pipes, and at
the time of the accident no pipe
had been attached to draw off the
water from condensed steam in the
new pipes, though such drip-pipe
was contemplated. A short time
before the accident a considerable
quantity of water was leaking from
a "T" in the pipes, and defendant's
overseer opened a small valve to
drain the pipes, when "pounding"
or "water-hammer" followed, and
soon thereafter the "T" burst, scald-
ing plaintiffs intestate so that he
died. The evidence tended to show
that just such a result was likely.
and that it could have been avoided
by reasonable care. It was held

that a verdict finding that defend-
ant was negligent in turning the
steam into the new pipes, before
they were in proper condition, was
justified, and authorized a judg-
ment for plaintiff; since defendant
omitted the degree of diligence
which the law requires every mas-
ter to exercise in order to furnish
his servants with a reasonably
safe place in which to perform the
duties required of them: Meeker
v. C. R. Remington Ac. Co., 62 App.
Div. (N. Y.) 472; s. c. 70 N. Y. St.
Rep. 1070; s. c. former appeal, 53
App. Div. (N. Y.) 592. A complaint
in an action to recover for intes-
tate's death from the explosion of
a steam-chest alleged that it was
caused by the omission to provide
such a safety-valve and steam-
gauge as were usually attached to
pipes passing the steam from a high
to a low-pressure engine, as in the
case at issue. The evidence showed
the absence of such appliances.
There was also evidence that the
steam was conveyed by a steam-
pipe from the high-pressure cylin-
der to the steam-chest of the low-
pressure cylinder, from which it
was admitted into the cylinder by


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

referee to whom the case was referred found that the boiler of the
locomotive which exploded "was defective and dangerous; that its
condition in this respect was known to the defendants, and to the
persons in the defendants' service whose duty it was to select the
engines which were to be used on the defendants' road, for some
weeks before the explosion; and that the defendants had been fre-
quently notified thereof/' He did not find that the plaintiff knew
of the dangerous condition of the boiler, and the court said that this
could not be presumed. It was held that the defendant was liable. 42

Pleading in Actions for Injuries in Explosions of Steam-
Boilers. — A declaration in such a case, which alleges that the master
carelessly and wrongfully furnished an insufficient engine; that the

two admission-valves, controlled by
a hook-rod; that if the hook-rod
jumped from its place the valves
would close automatically, and the
steam could not escape from the
steam-chest, but would continue to
enter from the high-pressure cylin-
der at such a rate as to raise the
pressure enormously almost in-
stantaneously, so that an explosion
would be inevitable; that to pre-
vent such an accident the hook-rod
was supplied with safety-latches,
but that they had been left unfas-
tened at the time of the accident,
and the hook-rod jumped from its
place and the explosion followed.
There was no evidence that such
a safety-valve as was usually 'sup-
plied in such a place would have
been large enough to' relieve the
great pressure following such an
accident, and it was agreed that a
steam-gauge could not have been
read quickly enough to prevent the
accident. It was held that, in the
absence of such evidence, the neg-
ligence of . defendant in failing to
provide a safety-valve and steam-
gauge, as charged, was not shown
to be the cause of the accident:
Green v. Lawrence Cement Co., 57
App. Div. (N. Y.) 284: s. c. 68 N. Y.
Supp. 7. Evidence of negligence on
the part of the defendant was also
discovered in the following cases:
Decatur Cereal Mill Co. v. Boland,
95 111. App. 601 (mill erected for
secret experimental purposes —
plaintiff, a tinner, set to work mak-
ing repairs without knowledge or
warning of danger and was injured
by an explosion of carbon-bisul-


phide gas which probably came in
contact with the heat from his fur-
nace — defendant liable) ; Empson
Packing Co. v. Vaughn, 27 Colo. 66;
s. c. 59 Pac. Rep. 749 (explosion of
steam cooker in a canning factory
—evidence held to warrant an in-
ference that it was caused by undue
steam-pressure and by a negligent
failure to have the cooker equipped
with a "safety-valve").

"Keegan v. Western R. Corp., 8
N. Y. 175; s. c. Seld. Notes 44. But
if a servant engages to work in the
construction of a ditch with the
distinct understanding that a cer-
tain boat, with its engines and
boiler, is to be used in the excava-
tion, and that a certain engineer is
to have charge and control of it,
and it blows up and injures the
servant — no recovery: Lebkeucher
v. Bolansen, 69 111. App. 297 (per
curiam opinion). It has been held,
and seemingly on clear grounds,
that a railroad company is not lia-
ble for the death of an employe*
killed by the explosion of the
crown-sheet of a boiler on a loco-
motive-engine, which had been ex-
amined a week before on suspicion
of having been burned, but pro-
nounced sound, and thereafter used
in hauling freight and passenger-
trains under a pressure of from
140 to 145 pounds, and which at
last exploded under a pressure of
110 pounds, while running alone at
a moderate rate of speed: Racin*
▼. New York Ac. R. Co., 70 Hun
(N. Y.) 453; s. c. 53 N. Y. St. Rep.
680; 24 N. Y. Supp. 388.

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insufficiency was unknown to the servant, and ''but for want of all
proper care and diligence would have been known to the master ; and
that while the servant was in the careful and prudent use of the
engine, it exploded on account of such insufficiency, and injured the
servant," etc., discloses a good cause of action. 48 A complaint was
likewise held good on demurrer which contained the following alle-
gations: That the decedent had been in the employment of the de-
fendant, as fireman on a freight-engine, for about two months, when,
on a day mentioned, he was ordered by the defendant to serve as
fireman on a particular engine attached to an express passenger-train,
then running on said road between certain points named; that said
engine "was old, rickety, with a weak, defective, patched-up, and
leaky boiler/' which was not strong enough to endure a high pressure
of steam, and could not be used with safety in drawing a train of
any kind, and that its use on an express-train in its weak and unsound
condition involved great peril to the lives of passengers and employes ;
that the deceased did not know, and had no means of knowing, the
weak and unsafe condition of said engine when he was placed on it
as fireman ; that the defendant, with full knowledge of the defective
and unsafe condition thereof, carelessly and negligently caused the
same to be used in drawing said express-train ; that on the same day
the boiler exploded, by reason of its defective and unsound condition,
and caused the death of the decedent, without any negligence on his
part. 44

§ 3984. Belevancy of Evidence in Such Actions. — In such an ac-
tion, the testimony of employes of the company, who had used the
engine, that, among them, the engine had always been considered
unsafe, has been held competent for the purpose of showing that the
person having care of the machinery of the road knew, or might have
known by reasonable diligence, that it was not safe. 45

"Noyes v. Smith, 28 Vt 59. employ 6; and if the allegations are

44 Columbus 6c. R. Co. v. Arnold, true, the appellant is clearly respon-

31 Ind. 177. The court, in giving its Bible." The sound law here laid

judgment, says: "The master is not down is contradicted and reduced

responsible to the employ^ for an to nonsense by subsequent portions

injury occasioned by the careless* of the opinion, which declare that

ness or negligence of a coemploy6, the master machinist is a fellow

or fellow servant. But here it is servant with the fireman, and that

alleged that the appellant, the mas- notice to the directors of the corpo-

ter, was notified of the unsafe con- ration that the engine was defect-

ditlon of the engine, and negligent- Ive would not be notice to the

ly caused it to be used, whereby the corporation: Columbus &c. R. Co.

fatal injury occurred. The negli- v. Arnold, supra, at pp. 184, 187.
gent acts complained of are im- * Chicago 4c. R. Co. v. Shannon,

puted to the master, and not to an 43 111. 338.


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

Explosions of Gas. — In an action for the death of a boy
caused by the explosion of gas in a mine, a verdict for the plaintiff
will be sustained where the evidence tended to show the presence of
explosive gas in the mine in dangerous quantities for at least four
days prior to the accident ; that this gas had accumulated in a room
within about thirty feet of the entry where the deceased was killed,
and where naked or open lights were used by the miners without ob-
jection by the superintendent ; and that a person who was not a certi-
" fied fire-boss had been employed as fire-boss by the mine-foreman with
the knowledge of the superintendent. 46 It has been reasoned that the
superintendent of gas-works, in making an experiment to increase the
pressure for the purpose of overcoming some difficulty in the supply
of gas, acts upon the suggestions of persons who have no authority to
direct him, at his peril; and for injuries received by him from an
explosion during such experiment, in consequence of his own care-
lessness or lack of skill, his employer is not liable. 47

§ 3936. Injuries to Employes in Other Explosions. — Where a serv-
ant, ordered by his master to paint the inside of a large water-tank
with a well-known brand of varnish containing a large quantity of
benzine, used in large quantities by the master for twelve years, and
in the use of which he had never had an accident, entered the tank
with a railroad-lamp, covered with glass, and shortly afterwards an

« Kless v. Youghiogheny Min. Co.,
18 Pa. Super. Ct 551. Where an em-
ploye* of a gas company in the dis-
charge of his duty opened the door
of a furnace, and an explosion en-
sued, and a grate-bar was propelled
through his body, causing Instant
death; and in an action for the
death It was claimed that the mas-*
ter's negligence was shown, in that
the grate-bars were filled with clay,
which was wet when they were
placed in the furnace, but it was
not shown that the use of clay, wet
or dry, was improper or dangerous,
nor shown how such construction
caused the accident, and no defect
was shown in the construction of
the bars, — a verdict was properly
directed for defendant; more espe-
cially as the evidence produced by
the defendant tended strongly to
show that the accident wag caused
by the negligence of the deceased
in opening the door without first
opening certain valves: Broadway
v. San Antonio Gas Co., 24 Tex. Civ.
App. 603; s. c. 60 S. W. Rep. 270.


In the opinion of the Court of Ap-
peals of Kentucky, a tar roof, in-
stead of a slate or iron one, upon
a gas-house, and the lack of a vent
in it for the escape of leaking
gas, and the location of the gas-
tanks or reservoirs too near the
fire under the gas-retorts, when
they are nine and a half feet out-
side of the gas-building, do not
show such a reckless indifference
or intentional failure to perform a
manifest duty as will constitute
"willful neglect" which will sustain
an action in Kentucky for the death
of an employ^ by an explosion of a
gas-tank: Collins v. Cincinnati Ac.
R. Co., 13 Ky. L. Rep. 670; s. c. 18
S. W. Rep. 11 (no off. rep.).

"Taylor v. Baldwin, 78 Cal. 517;
s. c. 21 Pac. Rep. 124 (plaintiff re-
moved counter-weights from one
side of gas-receiver, which allowed
it to tilt and gas to escape, an ex-
plosion following — experiment sug-
gested by contractor who had erect-
ed works).

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explosion occurred resulting in his death, there was no such negligence
on the part of his master as rendered him liable, the accident be-
ing outside the range of ordinary experience. 48 Where the engine
by wjiich a mill was operated was run by an inexperienced engineer,
and, on starting it, the "governor" refused to move until he pushed
it around with his hands (though there was testimony that this was
not an unusual happening with properly constructed engines), and
the engineer subsequently went into the mill and let corn into the
hopper while the burrs were revolving very fbpidly, in order to re-
duce their speed, and then went to slow down the engine, and while
on his way to do so the burrs exploded, and on reaching the engine-
room he found the engine running very rapidly and the governor
standing still, — it was held that there was evidence of negligence to
go to the jury. 49 A railway fireman was denied a recovery of damages
from the company for injuries caused by the explosion of a glass lubri-
cator which was not protected by a shield, although such lubricators
were made and sold to the company with shields, where the shields
have been discarded by almost all firemen and engineers, no explosion
had previously occurred, and the fireman was experienced and had op-
portunities for seeing and appreciating the danger equal to those of
his employer. 60

Article VII. Liability for Injuries to Servants Caused by
Fires Other than Railway Fires.


3939. Liability for negligently cre-

ating fires.

3940. Failure to provide means to

prevent fires.

3941. Liability of master for failure

to equip buildings with fire-

3942. Statutes enjoining this duty.

3943. Failing to notify or alarm

employes on the breaking
out of a fire.

" Allison Man. Co. McCormick,
118 Pa. St. 519; s. c. 11 Cent. Rep.
396; 12 Atl. Rep. 273; 20 W. N. C.
(Pa.) 571. .

-Ford v. Knipe, 180 Pa. St. 210;
s. c. 36 Atl. Rep. 729.

80 Texas Ac. R. Co. v. McKee, 9
Tex. Civ. App. 100; s. c. 29 S. W.
Rep. 544. S'ee also, Purdy v. West-
inghouse Electric Ac. Co., 197 Pa.


3944. Giving erroneous directions

whereby employe* are de-
tained in the burning build-

3945. Other decisions with respect

to the liability of employ-
ers for injuries to their
servants from fires.

St. 257; s. c. 47 Atl. Rep. 237; 51
L. R. A. 881 (explosion of a barrel
containing castings which a fellow
employs was inspecting with a
lighted match though it had origi-
nally contained several explosive
substances) ; Scanlan v. Kahn, 40
App. Div. (N. Y.) 62; s. c. 57 N. Y.
Supp. 554 (explosion of a wire-mak-
ing machine having a slightly con-


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

§ 3939. Liability for Negligently Creating Fires. — Clearly, if an
employer, through his negligent failure to perform any of the pri-
mary, absolute, and unalienable duties resting upon him, or through
the negligent failure of duty on the part of any servant for who>e
Negligence he is responsible, creates or induces a fire in his establish-
ment whereby any of his servants are killed or injured, he will be
responsible for the resulting damages. Thus, a railroad company is
liable for personal injuries to an inexperienced fireman caused by the
flames bursting out upon his opening the door of the fire-box and
catching his clothes and causing him to fall from the engine, owing
to the use of fine .and dirty coal, where the company knew, or ought
to have known, of its use and dangerous character and that it rendered
the risk extra-hazardous, and the servant was not warned and did not
know the danger. 1

§ 3940. Failure to Provide Means to Prevent Fires. — In a deci •
sion illustrating this species of negligence it was held that the f ailui i
on the part of a master to provide a stopcock in the pipe connecting
an oil-tank with burners used for firing a brick-kiln, which stopcock
had always previously been supplied, may be found by the jury to be
negligence, notwithstanding there is a shut-ofE at each of the burners
and one on the tank, where the tube adjacent to each burner is made
of rubber, and by reason of the heat and oil is liable to crack and
allow the oil to escape, which in such case would ignite and render
approach to the burner impossible because of the heat, as had fre-

vex metal die) ; Wledeman v. Ever-
ard, 56 App. Div. (N. Y.) 368; s. c.
67 N. Y. Supp. 738 (explosion of
fine dust in a mill) ; Kiras v. Nich-
ols Chemical Co., 59 App. Div. (N.
Y.) 79; s. c. 69 N. Y. St. Rep. 44
(explosion of hot semi-liquid slag
from smelting-works when brought
in contact with water at the dump-
1 ng-ground— employer liable ) .

1 Missouri &c. R. Co. v. Walker
(Tex. Civ. App.), 26 S. W. Rep.
513 (no off. rep.). In a suit for
injuries received by a servant in
jumping from a third-story window
of a manufacturing establishment
when it suddenly caught fire, the
plaintiff contended that the fire
was caused by the negligent mainte-
nance by the master of a vat con-
taining inflammable material in
proximity to a trip-hammer, and
that the material was ignited by
sparks from the hammer. It ap-
peared that the hammer was situ-


ated thirty feet from the vat, and
there was evidence that the sparks
from the trip-hammer would not
contain sufficient heat to cause any
substance to ignite at a distance
greater than twenty feet; that the
fire was first discovered on a rack
beside the vat, the rack being used
to drain articles that had been
dipped into the vat; that the vat
was covered at the time, but that
in endeavoring to put out the fire
the cover was knocked off, and fire
thereupon appeared in the vat The
same conditions had existed many
years without developing danger.
It was held that the evidence was
insufficient to support a verdict
that the defendant was negligent in
locating the vat and rack the dis-
tance they were from the hammer:
Dunlavey v. Racine Malleable 4c.
Iron Co., 110 Wis. 391; s. c. 85 N.
W. Rep. 1025.

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quently happened, and the valve on the tank could not be turned with-
out a mechanical appliance (a wrench or a pair of tongs), while in
case the flow of the oil was not stopped a conflagration and explosion
of the tank would be probable. 2

§ 3941. Liability of Master for Failure to Equip Buildings with
Fire-Escapes. 8 — The danger of fire in large manufacturing establish-
ments, where steam-power is used and where combustible material ac-
cumulates, is known to be great; and, owing to the large number of
persons frequently employed in such establishments, many of them
women and children, added to the panic which always attends an
alarm of fire, the danger to human life from accidental fires is very
great. These facts alone imperatively suggest the duty on the part of
owners of such establishments, to take those reasonable precautions to
prevent the breaking out of fires therein, to furnish their servants
with suitable escapes from the building, in case ol; fire so breaking out,
and to give them a speedy alarm as soon as a fire is discovered. Ju-
dicial authority would not be wanting in support of this conclusion if
the question had been often presented to the courts ; and it is to be re-
gretted that one court has placed itself in the attitude of denying any
such obligation on the part of' the master at common law. In a case
where a manufacturing establishment, five stories in height, with an at-
tic, took fire through heat produced by the friction of the machinery,
and burned to the ground, destroying many lives, it appeared that there
were no fire-escapes, except a single stairway, that there were no means
for alarming the inmates as soon as a fire should break out, and that the
apparatus which had been provided for extinguishing fires for some
reason or other did not work. The court held that these facts ex-
hibited no ground of liability against the owners of the establishment
in favor of one of its servants, who had been compelled to leap from a
window to the ground to escape being burned to death in the fire,
and who had thereby sustained injuries. In the view of the court,
the mere fact that the water did not run was not evidence of negli-
gence against the defendant, since the defendant, in any aspect of the
case, had done its whole duty when it supplied the proper appliances,
the care and use of which must necessarily be entrusted to its servants.
In the view of the court, which seems to have done all its thinking

2 Pullman Palace Car Co. v. wrench. Plaintiff, in the mean-

Laack, 143 111. 242; s. c. 18 L. R. while, having been assured that the

A. 215; 32 N. E. Rep. 285; aff'g valve was shut off, disconnected the

8. c. 41 111. App. 34 (one of the men supply-pipe, in order to have the

attempted to shut off the valve on tank moved away, and the oil

the tank with his hands, but finding spurted over him and United),

this impossible, he went to get a 'See also, post, § 4702.


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

on the side of the proprietor, "the failure of the water to run must,
therefore, be attributed to the negligence of fellow servants, either
in keeping the apparatus in order, or in negligently putting it in oper-
ation." 4 It is true, that if the failure of the water to run were at-
tributable to the negligence of fellow servants in putting the apparatus
in operation, the plaintiff would not be entitled to recover on the
ground that the water did not run and that the fire was not extin-
guished or checked. But it is not the law, even in Massachusetts, that
a master is exonerated from liability for injuries caused by reason of
failing to keep his machinery, appliances, etc., in proper order, where
he commits this duty to a servant of the grade of a mere fellow serv-
ant of the servant who is injured, and where this servant is negligent
in the performance of the duty. On the contrary, as we have already
seen, the doctrine, even in Massachusetts, is that this is one of the
absolute duties of the master, and that in the performance of it he is
responsible for the negligence of any one to whom he commits its

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 30 of 165)