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Commentaries on the law of negligence in all relations online

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performance, and, if to a servant, no matter to what grade of servant.*
But the Massachusetts case proceeds to use the following language:
"The narrow question is presented, whether a master is required by
the comman law so to construct the mill, or so to arrange the place
where his servants work, that they shall be protected from the conse-
quences of a casualty for which he is not responsible. We know of no
principle of law by which a person is liable in an action of tort for
mere nonfeasance by reason of his neglect to provide means to obviate
or ameliorate the consequences of the act of God, or mere accident, or
the negligence or misconduct of one for whose acts towards the party
suffering he is not responsible. If such a liability could exist, it
would be difficult, if not impossible, to fix any limit to it. And we
are therefore of opinion, that it is no part of the duty of the master
to his servant, employed in a building properly constructed for the
ordinary business carried on within it, in the absence of a statute re-
quirement, to provide means of escape from it, or to have remedial
agencies at hand to alleviate the results, or to insure the safety of the
servant from the consequences of a casualty, to which his [the master's]
negligence does not directly contribute. The common law gives a
remedy to a servant who is injured by the wrongful or negligent act
of the master ; the liability arises upon the doing of the act. But the
common law goes no further ; it does not provide a remedy when the
master is not responsible for the act, on the ground that he has
omitted to provide means to avoid its consequences. The master is

4 Jones v. Granite Mills, 126 Mass. • Ante, § 3781.
84, 88.


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not liable to the servant unless he has been negligent in something
-which he has contracted or undertaken with his servants to do, and
he has not undertaken to protect him from the results of casualties not
caused by him or beyond his control." 6 In another case growing out
of the same fire, it is said in the opinion of the court : "It is no part
of the master's duty to his servants to provide special means of notify-
ing them of a fire or other casualty occurring on his premises." 7 It
is submitted to the profession that^ upon ordinary expedience, the
danger of fires breaking out in extensive manufacturing establish-
ments is so great, and the consequences of such fires so dreadful to
those employed therein, that on the mo6t obvious principles of justice
and humanity, the master should be required to take those steps which
may be reasonably taken to provide suitable and speedy means of
egress from the building in case of fire, to provide suitable means of
extinguishing fires therein, and to subject such apparatus to a con-
tinual inspection to the end that it shall be kept in order, and to
provide — what can be done at slight expense — the means of creating
an alarm on every floor in case a fire breaks out in any part of the
building. Such decisions do not express the principles of the common
law. It is no principle of the common law that, from the mere fact
that the master does not create a catastrophe, he is not bound to make
a reasonable provision against its consequences where it is at any
time liable to occur. Such decisions are simply brutal. Judges who
are so callous to justice and humanity are unfit for the seats which
they occupy. They ought to be driven from them and put to work
in factories and subjected to the dangers for the presence of which
they are able to make such excuses.

§ 3942. Statutes Enjoining this Duty. — The violation of a statute
which has been enacted to change this infamous rule is, on a prin-
ciple elsewhere considered, 8 negligence per se. And if such violation
leads to the injury or death of an employe, an action therefor will
lie, in case of death, under a statute giving a right of action for an
injury resulting in death. 9 Evidence that a fire-escape attached to a
factory terminated above an open chute extending into the basement
of the building, so that an employ6 attempting to descend landed in
such chute, justifies a finding that the owners failed to provide a
proper fire-escape as required by a statute providing that factories
shall be provided with suitable and proper fire-escapes connecting with

•Jones v. Granite Mills, 126 Mass. "Vol. I, § 10.

84, 89. •Arms v. Ayer, 192 111. 601; s. c.

7 Keith v. Granite Mills, 126 Mass. 61 N. E. Rep. 851.
90, 93.


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

each floor; since a safe landing-place is an essential part of the fire-
escape. Nor could the factory inspector's approval of the fire-escape
exonerate the master, since his certificate could not operate to convert
an obviously unsafe landing into a safe one. 10

§ 3943. Failing to Notify or Alarm Employes on the Breaking Out
of a Fire. — It is obviously a part of the duty of the master to pro-
vide means for alarming his servants upon the breaking out of a fire
in his building,— especially where the building is extensive and con-
tains several floors upon which different servants are at work. A de-
cision of the Court of Civil Appeals of Texas which has some possible
bearing on this question 1X may be here referred to, the facts being set
out in the marginal note. 12

§ 3044. Giving Erroneous Directions Whereby Employes are De-
tained in the Burning Building. — In a Canadian case, reported in
the French language, it appeared that, a fire having broken />ut in
a tobacco factory in which children were employed, the foreman on the
highest floor of the building ordered the work-people, who had com-
menced to descend, to return to their places, crying out that there was
no danger, — in which he was mistaken. The smoke from the fire
afterwards reaching this floor, the children there at work became
alarmed and ran to the window. The respondent's daughter, one of
these children, whether through fright, or being pushed by her com-
panions, threw herself out of the window and was killed. Those who
remained easily escaped by the stairs or the lifts. It was held that
the primary cause of the child's death was the fact of the foreman's
hindering the work-people from descending, which they could easily
have done, and that, although the foreman had acted in good faith, he

"Johnson v. Steam Gauge Ac. the fire broke out. The first and

Co., 72 Hun (N. Y.) 535; 8. c. 55 third floors were connected by a

N. Y. St. Rep. 133; 25 N. Y. Supp. speaking-tube, so that the boy, who

689; s. c. aff'd, 146 N. Y. 152. was on the latter floor, could have

u Hernischel v. Texas Drug* Co., been notified of the fire, had his

26 Tex. Civ. App. 1; s. c. 61 S. W. presence been known. The fire

Rep. 419. spread with such rapidity that the

u The case was that the plaintiff's employes on the first floor had little

son was employed by a drug com- time to escape, and plaintiff's son

pany, and a fire, not claimed to jumped from a window to a roof

have resulted from negligence, oc- fifteen feet below and was injured,

curred In the building at noon, It was held that no issue of liability

when it was the custom of most of of defendant on the theory of dis-

the employes, including the plain- covered peril, and subsequent neg-

tiff's son, to be absent; but he had ligence, was presented by the evi-

been requested by the chemist to dence: Hernischel v. Texas Drug

remain, and his presence in the Co., supra. See also, Keith v.

building was known only to such Granite Mills, ante, § 3941.
chemist, who was not present when


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had committed an imprudence for which the appellant and master was
liable; that, the foreman having thus placed the child in a perilous
position, in which fright took away from her the use of her reason,
or at least made her believe that she could save herself only by throw-
ing herself out of the window, the appellant was liable; also, that the
judgment of the judge of first instance, fixing the amount of dam-
ages, could not be set aside except for reasons which would justify
the setting aside of the verdict of the jury. 18

§ 3945. Other Decisions with Respect to the liability of Employers
for Injuries to their Servants from Fires. — A court in New York has
held a corporation engaged in distilling and refining petroleum re-
sponsible for the death of a servant sent to repair a still in which es-
caping gas became ignited, on the ground that the master had ordered
the servant into an unsafe place contrary to its. duty in that regard. 14
Where, on the other hand, a servant perfectly familiar with the prem-
ises and with the business, went to a tank of paraffine which was being
heated, with a lantern in his hand, and raised the lid of it, whereby
his lantern caused an explosion, injuring him, he was denied a recovery
of damages on the ground of his own negligence; nor was it an ex-
cuse, for carrying the lantern, that the place was not properly lighted
hy the defendant. 15

Article VIII. Liability for Unsafe Scaffoldings, Stagings,

Ladders, etc. 1

Section Section

3947. Obligation of the master to. 3952. Master not liable for giving

make reasonable inspec- way of such structure un-

tions. less he might have known

3948. Duty to apply what tests. by a reasonable inspectiou

3949. Liability of master for want that it was defective.

of ordinary or reasonable 3953. Master not liable for injuries

care in performing this which may happen through

duty. the negligent use of the

3950. This duty absolute and Unas- structure.

assignable. 3954. Master providing safe and

3951. Right of servant to reply up- suitable appliances, mate-

on the performance of this rials, etc., but servant se-

duty by master. lecting unsuitable ones

LJ ^ ^ ^ "Benfleld v. Vacuum Oil Co., 75

"MacDonald v. Thibaudeau, Q. Hun (N- Y .) 209; s. c. 27 N. Y.

R \. 8 JK B ; 449, t* !.*„•„ Supp. 16; 58 N. Y. St. Rep. 663.

"Nichols v. Brush Ac. Man. Co.,

53 Hun (N. Y.) 137; s. c. 25 N. Y. ^pon this subject see, with an

St. Rep. 717; 6 N. Y. Supp. 601. extensive review of the authorities,


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


with which to build the

3955. Effect of custom of workmen
to build their own stag-

S956. What defects in stagings,
scaffolds, etc., are not de-
fects in *ways, works, or

3957. Personal liability for ordering

servant to use a defective
ladder or scaffold.

3958. Evidence to show that the de-

fective ladder or other ap-
pliance was one furnished
by the master.

3959. Interpretation and applica-


tion of New York statute
imposing upon emplowers
the duty of furnishing safe
scaffolds for their work-
. men.

3960. Evidence of negligence to

' charge employer for failing
to provide safe scaffolds,
ladders, etc.

3961. Liability for injuries from

defective scaffolds in ship-

3962. Injuries from falling objects

through failure to erect

3963. A question of pleading in an

action grounded on this

§3947. Obligation of the Master to Hake Reasonable Inspec-
tions. — Upon this subject the following propositions may be stated,
based upon the authorities cited and upon the principles which have
preceded: — (1) The master is under an affirmative du+y to his serv-
ant to make a reasonable, diligent and skillful inspection and to re-
sort to reasonable tests to see that any scaffold, ladder, etc., upon
which he requires his servant to work, shall bear the weight to which
he subjects it. 2 If he furnishes planks which are knotty, it has been
said to be his duty to subject them to a strain of weight, equal, if not
superior, to the weight which they are designed to bear. 8 If he man-
ufactures and supplies a ladder for the use of his employes, he is
chargeable with such knowledge of its character, and consequently of
its defects, as the exercise of ordinary care during its manufacture
would have discovered. 4 In the case of a ladder on the side of a
freight-car, the rule requiring frequent inspections has been applied
so severely that, although it was inspected on the 13th, 14th, 16th,
and 17th of the month, and the defect was not discovered, yet it ap-
pearing that a proper inspection on the 18th, the day of the accident,
would have disclosed the defect and avoided the injury, — it was held

— Beesley v. Wheeler, 103 Mich.
196; s. c. 27 L. R. A. 266.

*Davies v. Griffith, 27 Wkly. L.
Bull. (Ohio) 180; Standard Oil Co.
v. Bowker, 141 Ind. 12; s. c. 40 N.
E. Rep. 128; Missouri 6c. R. Co. v.

Miller, 25 Tex. Civ. App. 460; s. c.
61 S. W. Rep. 978 (ladder on

■Flynn v. Union Bridge Co., 42
Mo. App. 529.

4 Standard Oil Co. v. Bowker, 141
Ind. 12; s. c. 40 N. E. Rep. 128.


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that, by reason of negligence in not repeating the inspection on that
day, the company was liable. 5 Other judicial decisions relax this
duty, dangerous as the consequences may be of not exacting strict
compliance with it ; one decision, for example, holding that a contractor
does not owe to masons employed by him the duty of testing the
strength of every timber in a scaffold, where an external examination
shows no defect. 6 In cases where the risk of injury in the use of
tools is small, the requirement of the master to use ordinary care in
furnishing implements may be satisfied by furnishing very primitive
and inefficient instruments. It was so held, and a recovery denied,
where the master had furnished a ladder for use by domestics several
times a year in reaching a pigeon-loft, and the plaintiff, while using
it by direction of the master's wife, his implied agent, fell from it
because it was too short, and was injured. 7 So, it was held that a mas-
ter was not guilty of negligence, as matter of law, in failing to set
spikes at the bottom of a ladder used about a factory to prevent it
from slipping on the floor while in use, where the servant injured by
its slipping was an experienced mechanic, and the ladder was one of
a kind which is in ordinary use, and was selected by the plaintiff
himself. 8

§ 3948. Duty to Apply What Tests. — In inspecting the side-ladder
of a railway-car, it has been held that the inspectors of a railway com-
pany, when inspecting the ladder on the side of a car, need not apply
any physical force to the grab-irons to discover latent defects, unless
a careful inspection by the eye discloses some defect or probable weak-
ness; but, if such careful observation would have disclosed that a
grab-iron was out of place, the inspectors would be negligent if they
failed to discover such condition and ipply all reasonable physical
tests to determine the cause of such condition, and whether such con-
dition was a safe one. 8

• Missouri Ac. R. Co. v. Miller, 25 great skill or care in its use; serv-

Tex. Civ. App. 460; s. c. 61 S. W. ant having full knowledge and com T

Rep. 978. prehension of defects; no recovery,

•Bannon v. Sanden, 68 111. App. ever after failure to spike as prom-

164 (invisible knot in 4x4 timber, ised).

which had been used several times "Thompson v. Great Northern R.

before in scaffoldings without Co., 79 Minn. 291; s. c. 82 N. W.

breaking). Rep. 637 (evidence held to sustain

T Steinhauser y. Spraul, 127 Mo. a finding that the defect was appar-

541; s. c. 30 S. W. Rep. 102. ent enough to have been discovered

•Borden v. Daisy Roller-Mill Co., by a reasonably careful inspection.
98 Wis. 407; s. c. 74 N. W. Rep. 91. there being evidence that a bolt
Further as to the failure to spike holding the grab-iron was so loose
the bottom of a ladder to prevent as to allow the latter to hang one-
it from slipping, — see Marsh v. fourth of an inch away from the
Chickering. 101 N. Y. 396 (held to side of the car),
be an ordinary tool, not requiring


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

§ 3949. Liability of Master for Want of Ordinary or Seasonable
Care in Performing this Dnty. — (2) Whether the master undertakes
to perform this duty himself, or through the agency of another, he is
liable for its negligent non-performance. 10 For example, a company
which undertakes to make and to furnish ladders for the use of its
workmen, is bound to use reasonable care, to the end that the, ladders
shall be safe, and is responsible for the negligence of those whom it
employs to construct them. 11

§ 3950. This Duty Absolute and Unassignable. — (3) This brings
us to the next proposition, which is, that as this is one of those duties
of the master which has been variously designated as a personal and
unalienable, or unassignable duty, 12 — though not in the sense of his
being an insurer of its performance, — it is immaterial to whom or
to what grade of servant he delegates its performance; and, accord-
ingly, a servant may recover damages of the master for his negligence
in failing to perform this duty, although the negligence is that of a
fellow servant to whom the master has committed the performance of
the duty."

10 Flynn v. Harlow, 46 N. Y. St.
Rep. 872; s. c. 19 N. Y. Supp. 705;
Steinhauser v. Spraul, 114 Mo. 551;
8. c. 21 S. W. Rep. 615; s. c. aff'd
on rehearing, 21 S. W. Rep. 859
[but compare s. c. on second appeal,
127 Mo. 541; 30 S. W. Rep. 102].

"Flanigan v. Guggenheim Smelt-
ing Co., 63 N. J. L. 647; s. c. 44
Atl. Rep. 762.

"Ante, § 3874; Chicago Ac. R.
Co. v. Scanlan, 170 111. 106 (duty to
provide safe scaffolding a positive
duty of master; notice to foreman
of carpenters erecting it for brick-
layers is notice to master of its de-
fective condition) ; Chicago Ac. R.
Co. v. Maroney, 170 111. 520; aff'g
8. c. 67 111. App. 618 (same point-
same accident); Kuss v. Freid, 32
Misc. (N. Y.) 628; s. c. 66 N. Y.
Supp. 487 (duty imposed by New
York Labor Law held to be a duty
of this nature, so that the servant
who builds the scaffolding repre-
sents the master).

"Green v. Banta, 48 N. Y. Super.
156; s. c. aff'd, 97 N. Y. 527; Davies
v. Griffith, 27 Wkly. L. Bull.
(Ohio) 185. Contrary to the text,
the author has met with two un-
tenable decisions, one of which

holds that the master is not liable
where he commits this duty to an
independent contractor of compe-
tent skill and good reputation, al-
though the master accepts the
structure without examination and
puts his servant to work upon it:
Devlin v. Smith, 89 N. Y. 470; s. c.
42 Am. Rep. 311; 11 Abb. N. Cas.
(N. Y.) 322; rev'g s. c. 25 Hun
(N. Y.) 206. The other holds that
the master will not be liable where
the scaffold is erected by a fellow
servant of the servant receiving
the injury, the master not being
present, and there being no evi-
dence that he was negligent in the
employment of the fellow servant
in question, and it appearing that
he provided suitable material for
the purpose: Benn v. Null, 65 Iowa
407. Both of these decisions are
opposed to the general doctrine of
the text, which has been more ex-
tensively considered in another
place: Ante, § 3874. The New
York case is "distinguished" in Vos-
burgh v. Lake Shore Ac. R. Co., 94
N. Y. 378, and it is to be hoped
that it will continue to be distin-
guished until it is extinguished.


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§ 3951. Bight of Servant to Eely upon the Performance of this
Dtity by Master. — (4) It is the duty of the master, and not the duty
of the servant, to make the tests of such an appliance as above 6poken
of, and the servant is ordinarily entitled to rely upon the assumption
that the master has done so ; and the servant will not be liable on the
ground of contributory negligence for failing to make such tests him-
self, or for using the scaffold, ladder, etc., unless the danger was so
apparent that a person of ordinary prudence would not undertake the
risk. 14 Especially is it true that the servant ma? rely upon the prom-
ise of the master or his representative to perform this duty, and may
hence remain a reasonable time in the service expecting its perform-
ance. 16 $

§ 3952. Vaster Hot Liable for Giving Way of such Structure un-
less he might have Known by a Seasonable Inspection that it was
Defective. — (5) On the other hand, on principles already considered, 16
the master is not liable for an injury to his servant from the giving
way of such a structure on which the servant is required to work,
unless the master knew, or by the exercise of reasonable inspection
might have known, of the defect therein; and this is especially true
where the means and opportunity of inspection are equally open to
the servant. 17

§ 3953. Vaster Hot Liable for Injuries which may Happen through
the negligent Use of the Structure. — (6) The master is liable for the
failure to exercise reasonable care and skill in the making or build-
ing of the structure ; but he is not liable for any injury which may
happen in its use, where he has committed its management and use
wholly to a gang of servants. If, in sucji a case, an injury hap-
pens from its negligent adjustment by one of such servants, this will
be ascribed, if the injury falls on the servant making such adjust-
ment, to his own negligence, and if it falls on another servant, it will
be ascribed to the negligence of a fellow servant, for which, under

"Ante, t 3765; Reber v. Tower, erwards the servant found the lad-

11 Mo. App. 199; Steinhauser v. der at a place where certain work

Spraul, 114 Mo. 551; s. c. 21 S. W. was to be done, and saw that It had

Rep. 515; s. c. afFd on rehearing, been repaired and was apparently

21 8. W. Rep. 859 [compare s. c. safe, and attempted to mount It, and

on second appeal, 127 Mo. 541; 30 a step gave way where It had been

S. W. Rep. 102]. repaired, and he was injured, the

" Post, § 4667. Where a servant master was held liable: Ritt v.

employed to do painting called the True Tag Paint Co., 108 Tenn. 646;

attention of his master's superin- s. c. 69 S. W. Rep. 324.

tendent to a defective ladder, and "Ante, § 3785.

was told by the superintendent that " McCarthy v. Muir, 50 111. App.

It was all right, and safe, and aft- 510.

vol. 4 thomp. wbo.— 13 193

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

principles hereafter considered, 18 the master is not liable. In other
words, the master will not be liable where the manner of use, and not
the faulty construction of the appliance, causes the injury. 19 Thus,
if a ladder, which has been furnished by the master to be used by his
servants, is safe and sufficient in itself, the master will not be liable
for an injury to one of them sustained by the fact of its having been
insecurely fastened by a co-servant; 20 nor for its being subjected, by
the servants using it, to a strain which was not contemplated when it
was built, where it was safe and adequate for the use for which it was
originally intended. 81 In many 6uch cases the liability of the master
will be excluded on the ground of the contributory negligence of the
particular servanf who sustained the injury, in making a negligent use
of the appliance. 82

§ 3954. Master Providing Safe and Suitable Appliances, Materials,
etc., but Servant Selecting Unsuitable Ones with which to Build the
Structure. — (7) On a principle elsewhere considered, if the master
has furnished a safe and suitable appliance, he will not be liable be-
cause, instead of using this appliance, the servant who sustains the
injury, or a fellow servant working with him, selects another one
which is dangerous or unsuitable. 82 If the substituted appliance is

"Post, § 4846, et seq.

19 Young v. Burlington Wire Mat-
tress Co., 79 Iowa 415; 8. c. 44 N.
W. Rep. 693; Jennings v. Iron Bay
Co., 47 Minn. Ill; s. c. 49 N. W.
Rep* 685.

"Qulnn v. Fish, 6 Misc. (N. T.)
105; s. c. 55 N. Y. St. Rep. 401; 26
N. Y. Supp. 10.

11 Chicago Architectural Iron
Works v. Nagel, 80 111. App. 492
(workmen lifting heavy balcony
into place, and standing on scaf-
folding to get a "purchase" on it).

"Crebarry v. National Transit
Co., 77 Hun (N. Y.) 74; s. c. 59 N.
Y. St. Rep. 836; 28 N. Y. Supp.
291. A complaint alleging that a
corporation manufacturing lumber
caused a pile to be constructed, and

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 31 of 165)