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Commentaries on the law of negligence in all relations online

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382; Baxter v. Chicago Ac. R. Co.,
104 Wis. 307; s. c. 80 N. W. Rep.
644 (customary care exercised by
corporations generally in the same
line of business).


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generally, who ar6 engaged in the same business, 10 and which may be
safely operated by the exercise of ordinary or reasonable care; 11 nor
will he become liable by reason of the fact that other machines or
methods of work which are safer than his are also in common use; 32
but he discharges his duty if the machinery, tools, and appliances
which he furnishes for the use of the servant are reasonably safe for
the purpose intended." It has been said that an employer is not re-
quired to furnish his employ^ with such appliances as combine the
greatest safety with practical use, but only to exercise such care in
their selection as a prudent man would exercise for his own protec-
tion. 84 Under the operation of this rule, it is not sufficient that there
are better or safer appliances to be had, but that supplied must have
some radical fault, or its use have become so generally obsolete or sup-
planted by others superior thereto that its adoption or retention will
itself indicate negligence.* 5 On the one hand, a railway company is
not bound, in favor of its employ6s, to adopt new devices on its trains
until their utility has been sufficiently tested. 86 As our hindsights

M Rogers v. Louisville 6c. R. Co.,
88 Fed. Rep. 462.

"Wormell v. Maine Ac. R. Co.,
79 Me. 397; s. c. 4 N. Eng. Rep.
696; 10 Atl. Rep. 49; Rooney v.
Sewall Ac. Co., 161 Mass. 153; s. c.

56 N. E. Rep. 789; Richmond Ac.
R. Co. v. Dickey, 90 6a. 491; fl. c.
16 S. E. Rep. 212; Davis v. Augusta
Factory, 92 Qa. 712; 8. c. 18 S. E.
Rep. 974; Payne v. Reese, 100 Pa.
St. 301; Mississippi River Logging
Co. v. Schneider, 74 Fed. Rep. 195;
s. c. 20 C. C. A. 390; 34 U. S. App.
743 (only such as can with rea-
sonable care be used, without dan-
ger except such as is reasonably
incident to the business).

"Degenhart v. Gent, 97 111. App.
145 (deceased, an experienced man,
working in a trench that was not
braced, had twice rejected his em-
ployer's offer to brace the trench,
assuring him that it was safe with-
out it) ; Goodnow v. Walpole Emery
Mills. 146 Mass. 261; s. c. 5 N.
Eng. Rep. 719; 15 N. E. Rep. 576.

n Ante. §§ 3768, 3986; Strattner
v. Wilmington City Electric Co., 3
Pen. (Del.) 245; s. c. 50 Atl. Rep.

57 (but they must be so adapted'
to, and adequate for, the purposes
for which they are to be used, as
to be reasonably safe under all con-
ditions of the employment) ; Chi-
cago &c. R. Co. v. Finnan, 84 111.
App. 383; American Malting Co. v.

VOL. 4 THOMP. NEG. — 15 ♦

Lelivelt, 101 111. App. 820; Meyer v.
Meyer, 101 111. App. 92; Higgins v.
Missouri &c. R. Co., 43 Mo. App.
547; Berning v. Medart, 56 Mo.
App. 443; Blanton v. Dold, 109 Mo.
64; Friel v. Citizens' R. Co., 115
Mo. 503; Walsh v. Commercial
Steam &c. Co., 11 Misc. (N. Y.) 3;
s. c. 63 N. Y. St. Rep. 461; 31 N. Y.
Supp. 833; Spencer v. Worthing-
ton, 44 App. Div. (N. Y.) 496; s. c.
60 N. Y. Supp. 873; O'Hare v. Keel-
er, 22 App. Div. (N. Y.) 191; s. c.
48 N. Y. Supp. 376; Dwyer v. Shaw,
22 R. I. 648; s. c. 50 Atl. Rep. 389.

M Sappenfleld v. Main St. Ac. R.
Co., 91 Cal. 48; s. c. 27 Pac. Rep.
590; Brymer v. Southern &c. R.
Co., 90 Cal. 496; s. c. 27 Pac. Rep.

* Sappenfield v. Main St. &c. R.
Co., 91 Cal. 48; s. c. 27 Pac. Rep.

"• Burns v. Chicago &c. R. Co., 69
Iowa 450. Where a railroad com-
pany has used on its cars the same
kind of oil generally in use upon
railway-cars, and had no knowl-
edge, and by the exercise of ordi-
nary care and inspection would not
have known, of anything poison-
ous connected therewith, it was
held that an employg could not re-
cover damages by being poisoned
by the use of such oil: Kittering-
ham v. Sioux City&c. R. Co.. 62
Iowa 285. So, while emery-wheels


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

are better than our foresights, it has been well held that the question
of the negligence of a master in furnishing tools to his servant must
be determined by the facts existing at the time an accident occurs;
and the fact that appliances then in use were discarded subsequently
is immaterial; 17 and, of course, the fact that other appropriate means
might have been used to d© the work does not make it negligence on
the part of an employer to use an implement also appropriate, al-
though an accident results from its use. 88 On the other hand, the
master is bound to adopt such improved appliances as are in ordinary
use by prudent employers engaged, in the like business, and surrounded
by like circumstances. 89

§ 3994. Further of this Subject — One court has imposed a higher
obligation upon railroad companies, by sanctioning the following in-
struction: "It is negligence to use cars dangerous in their construc-
tion. When there are others to be used which are not dangerous, rail-
road companies are bound to procure the best; otherwise they must
be held responsible." 40 This statement of doctrine is obviously un-
sound, and out of line with the modern current of authority, and it
is abandoned in the jurisdiction where it was pronounced. 41 Other
courts go to what seems the opposite extreme, and hold that, as be-
tween himself and his servant, a manufacturer has the right to keep
a machine in use after it has become old and defective, unless its de-

are notoriously dangerous, by rea-
son of their tendency to burst, it
has been held that the mere fact
that one manufactory has adopted
* the method, in making emery-
wheels, of filling them with copper
wire, where such practice is not
general, does not make it negli-
gence for a proprietor to use a
wheel not filled with such wire:
Breig v. Chicago 6c. R. Co., 98
Mich. 222; s. c. 57 N. W. Rep. 118.

"Friel v. Citizens R. Co, 115 Mo.
503; s. c. 22 S. W. Rep. 498.

"Harely v. Buffalo Car Man. Co.,
142 N. Y. 31; s. c. 58 N. Y. St Rep.
437; 36 N. B. Rep. 813; Young v.
Virginia &c. Const. Co., 109 N. C.
618; s. c. 14 S. E. Rep. 58; Kehler
v. Schwenk, 144 Pa. St 348; s. c.
13 L. R. A. 374; 22 Atl. Rep. 910;
Dwyer v. Shaw, 22 R. I. 648; s. c.
60 Atl. Rep. 389.

"Richmond Ac. R. Co. v. Jones,
92 Ala. 218; s. c. 9 South. Rep. 276.

40 St. Louis Ac. R. Co. v. Valirius,
56 Ind. 511, 519. The court say:
"We cannot hold this rule as ln-


correct The same rule, in refer-
ence to spark-arresters, was laid
down by this court in the case of
Toledo 6c. R. Co. v. Wand. 48 Ind.
476, and, we think, fully sustained
by the authorities: Smith v. New
York &c:R. Co., 19 N. Y. 127; Hege-
man v. Western R. Corp., 13 N. Y.

"The case of St. Louis Ac. R.
Co. v. Valirius, supra, has not been
followed in Indiana. It was criti-
cised and limited in Lake Shore
Ac. R. Co. v. McCormick, 74 Ind.
440; Umback v. Lake Shore 4c. R.
Co., 83 Ind. 191; Pennsylvania
Co. v. Long, 94 Ind. 250. See
Louisville &c. R. Co. v. Bates, 146
Ind. 564, where the standard is
held to be ordinary care in furnish-
ing and maintaining reasonably
' safe cars and other appliances; and
where it is held that the company
need not furnish absolutely Bafe
cars and appliances, nor need it
make impracticable or unreason-
able tests.

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feet expose the servant to some latent extraordinary danger. 42 On
the other hand, it has frequently been pointed out, by the judges deal-
ing with this question, that many business enterprises could not be
carried on if it were incumbent upon the proprietor to provide him-
self with machinery that is new and sound. Such, clearly, is not
the law. It all comes to this : the obligation of the master is one of
social duty growing out of an intimate contractual relation. It is
the duty, founded on considerations of justice and humanity, of ex-
ercising reasonable care and entirely good faith to the end of secur-
ing the safety of his servant, so far as the same is compatible with
the nature of the employment. This obligation is discharged by the
master when he does what he reasonably may, consistently with his
means and the proper conduct of his business, towards furnishing
the servant with safe machinery, tools and appliances and keeping
them safe, and of apprising him of the extent of the risks which he
undertakes. 48

§ 3995. Duty to Maintain Machinery, Tools, and Appliances in a
Seasonable State of Eepair. — It is almost needless to say that the
master does not discharge his duty by merely seeing that the tools,
machinery, and appliances are safe and suitable in the first instance ;
but he must also exercise ordinary or reasonable care to the end of
seeing that they are kept in a suitable state of repair. 44 A limitation
of the liability of the master in this respect has already been indi-
cated, 46 which is, that he is not liable for injuries occasioned by ma-
chinery, in consequence of its having become defective and unsafe,
either through the acts of a fellow servant or otherwise, unless the
master knows, or ought to know — that is, might have found out by a
reasonable inspection — its defective and unsafe condition. 46 It is

** Hay den \*. Smithville Man. Co., servant resulting from the danger-

29 Conn. 548; Kelley v. Silver ous condition of the machine owing

Spring ftc. Co., 12 R. I. 112; s. c. 7 to the fact that the foreman has

Rep. 60. fastened up and rendered useless a

*Devitt v. Pacific R. Co., 50 Mo. device necessary to the safe opera-

302; Wonder v. Baltimore &c. R. tion of the machine, without in-

Co. v 32 Md. 411; Dynen v. Leach, 26 forming or warning the servant,

L. J. (Exch.) 221. thus thrusting him into a new and

"Ante, §§ 3781, 3786; Gualden v. unusual danger: Strauss v. Haber-

KSansas City &c. R. Co., 106 La. 409; man Man. Co., supra (foreman

8. c. 30 South. Rep. 889; Strauss wired in a sliding part by which

v. Haberman Man. Co., 23 App. die could be safely withdrawn from

Div. (N. Y.) 1; s. c. 48 N. Y. Supp. stamping-machine — plaintiff injured

425. For example, the fact that while using his hands to remove

a machine to which an inexperi- die).

enced servant is assigned was, as "Ante, §§ 3782, 3785.

originally constructed, suitable and M Cowan v. Umbagog Pulp Co., 91

proper, does not relieve the master Me. 26; s. c. 39 Atl. Rep. 340.
from liability for injuries to the


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

scarcely necessary to add that if the appliance becomes unsafe by
reason of the negligence of the servant who is thereby injured, who
has been charged with the duty of keeping it safe and who has neg-
lected that duty, he cannot recover damages from the master for his
own wrong. 47

§3996. Machinery Long Used without Accident. 48 — If, in addi-
tion to the fact that the instrument is one in ordinary use in the
particular business, the further fact appears that it has been well and
safely operated in the particular case for a long time before the acci-
dent in question, this will exonerate the master from the imputation
of a want of reasonable care. 49 So, it has been held that, where a serv-
ant has worked in a particular place for several years without its being
lighted, and has incurred no injury thereby, the master is not lia-
ble to him for an injury which may have resulted from this circum-
stance. 50 It has been held that the mere fact of age and long use of
a stick, which broke while being used as a lever, causing the death of
an employ^, will not justify a finding that the employer ought to have
known that the stick was defective, especially where the employer
kept on hand a stock of lumber of suitable size for use as levers. 51

§3997. Bule does not Justify Master in Supplying Appliances
Inherently or Obviously Dangerous. — To exonerate a master from
the charge of negligence in furnishing his employe unsafe appliances
with which to work, it is not sufficient that the appliances furnished
were such as were in common use for similar purposes in the same
neighborhood, but they must have been such as would have commended
themselves to a reasonably prudent man. 52 It has been well reasoned
that examination and repair are not all of a master's duties ; but that
the original or permanent structure or machine furnished by a mas-

* T Conway v. Chicago &c. R. Co., St Ac. R. Co., 91 Cal. 48; s. c. 27

103 Iowa 373; s. c. 72 N. W. Rep. Pac. Rep. 590.

543 (where a handhold on the floor M Kelley v. Silver Spring &c. Co.,

at the top of a ladder was raised 12 R. I. 112; s. c. 7 Rep. 60. See

two Inches from the floor by means also, Seymour v. Maddox, 16 Q. B.

of blocks, but the foreman negll- 326.

gently allowed coal-dust to accumu- "Allen v. Smith Iron Co., 160

late under it so that he could not Mass. 557; s. c. 33 N. E. Rep. 581

grasp it in descending, by reason (and this was so even if the stick

of which he was injured, there coul& be considered a part of the

could be no recovery). works or machinery of the em-

4s See also, ante, § 3803a. ployer under the Employers' Lia-

"Dingley v. Star Knitting Co., 58 bility Act of that State).

Hun (N. Y.) 605; s. c. 34 N. Y. St. "Geno v. Fall Mountain Paper

Rep. 989 (mem.); 12 N. Y. Supp. Co., 68 Vt. 568; s. c. 35 Atl. Rep.

31; s. c. aff'd, 134 N. Y. 552; 32 475.
N. E. Rep. 35; Sappenfleld v. Main


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ter should be reasonably safe, irrespective of any question of examina-
tion and repairs. For example, it may be negligence to use machinery
which, though not defective, is dangerous, — as where cash-carriers or
parcel-carriers, running on a wire in the defendant's store, frequently
fell. 58 In another jurisdiction, where, in this and other relations,
the courts seem to display more care for Jhe rights of the laboring
classes than is disclosed by the American rule which makes the com-
mon negligence of employers the rule of the law, — it has been held
that an employer who uses means to perform his work which threaten
constant danger to his employes, when other means somewhat more
expensive and less rapid could be used, by which the danger could be
avoided, is liable for an injury caused by the use of such means. 54

§ 3998. Standard by which to Gauge the Safety of Machinery. —
It has been reasoned that the question whether the particular ma-
chinery provided by a master is proper and suitable is to be determined
by its actual condition, and not by comparing it with other ma-
chinery. 55 The rule that appliances furnished by a master must be
reasonably fit for the purpose for which they are to be used, has refer-
ence to their fitness with relation to the. safety of the servant who is
required to use them. 56

§ 3999. Safe and Sufficient Machinery, Tools and Appliances Fur-
nished by Master, and Mode of their Use Committed to Servants. —
Where safe and suitable machinery, tools, appliances, etc., and a suffi-
cient number of competent servants to operate them are furnished
by the master to his servants to be used in their employment, and they
are properly warned and instructed where such warning and instruc-
tion is necessary, and the mode of using such machinery, tools, appli-
ances, etc., is committed to the servants themselves, and in the use
of them one of the servants is injured, the master will not be held

■ Stock v. Le Boutillier, 19 Misc. breaking of machinery constructed
(N. T.) 112; s. c. 43 N. Y. Supp. in the company's own shop by its
248; aff'g s. c. 18 Misc. (N. Y.) employes, because of a defect in its
349; 41 N. Y. Supp. 649. That an original construction, where the de-
employer is not, as matter of law, feet must have been obvious to
liable for injuries to his servant those engaged in the work of con-
employed to do other work, in set- structing the machinery: Atchi-
ting him at work upon a dangerous son &c. R. Co. v. Carey, 58 Kan. 815
machine, where the machine is per- (mem.) ; s. c. 49 Pac. Rep. 662.
feet in its construction and opera- M Scanlan v. Detroit Bridge Ac.
tion, — see National Malleable Cast- Works, Rap. Jud. Que. 16 C. S. 264.
ings Co. v. Luscomb, 6 Ohio C. D. "Wood v. Heiges, 83 Md. 257; s.
313; s. c. 2 Ohio Dec. 636. A rail- c. 34 Atl. Rep. 872.
road company is liable for an in- M 6arnett v. Phoenix Bridge Co,
jury to a fireman caused by the 98 Fed. Rep. 192.


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

liable, for he has been guilty of no negligence and has done no wrong;
but the accident will be ascribed either to the negligence of the serv-
ant who is injured, or to the negligence of his fellow servants, ac-
cording to the circumstances shown in the evidence. 67 The duty of
the master to see to it that the machinery furnished for the use of
his servants is reasonably, safe, does not extend so far as to require
him to attend to the proper regulation of those parts which neces-
sarily have to be adjusted in the course of their use, and with regard
to the particular work to be done, and the adjustment of which is
incident to the ordinary use of the machine. 58 In those jurisdictions
where a mere foreman of work is not regarded as a vice-principal of
the master, the doctrine is, that as to details in the performance of
work in which an employ^ is injured, though the particular manner
in which it is done is by direction of the foreman, the master is not
liable; he having furnished everything proper, and the foreman be-
ing a fellow servant in directing the performance of the details. 59

"Stewart v. International Paper
Co., 96 Me. 30; s. c. 51 Atl. Rep.
237 (plaintiff was injured by fall-
ing into a drain in defendant's
pulp-mill; a fellow servant of plain-
tiff had negligently left the cover
off the drain, and the use of the
drain by the servants was a mat-
ter of daily occurrence, 'and in the
line of their duties); Pellerin v.
International Paper Co., 96 Me. 388;
s. c 52 Atl. Rep. 842; Small v. Al-
lington &c. Man. Co., 94 Me. 551;
s. c. 48 Atl. Rep. 177 (failure of
employes to secure piece of machin-
ery in temporary position while
they readjusted the tackle by which
it was being raised); Regan v.
Lombard* 181 Mass. 329; s. c. 63
N. B. Rep. 895; Erickson v. Victoria
Copper Min. Co., 130 Mich. 476; 8.
c. 9 Det. Leg. N. 120; 90 N. W. Rep.
291; Wagner v. Portland, 40 Or.
389; s. c. 60 Pac. Rep. 985; 67 Pac.
Rep. 300; O'Dowd v. Burnham, 19
Pa. Super. Ct. 464 (employees mis-
taken judgment as to the strength
of a hook which he had selected
from a number for lifting certain

"Eicheler v. Hanggi, 40 Minn.
263; s. c. aub nom. Elcheler v. St.
Paul Furniture Co., 41 tf. W. Rep.

"O'Connall v. Thompson-Starrett
Co.. 72 App. Div. (N. Y.) 47; s. c.
76 N. Y. Supp. 296. In a case illus-
trating this principle it appeared


that the defendant kept in its store-
house sufficient materials for the
construction of staging required by
its workmen in painting ceilings.
There was no evidence that defend-
ant undertook to furnish the stag-
ing in question for its workmen as
a completed structure, and it did
not assume the responsibility of
adopting specific hooks to the con-
struction of a particular staging.
Plaintiff's fellow workmen procured
the hooks from the company's store- >
house and erected the staging them-
selves. It was held that if they
failed to exercise due care in select-
ing the hooks, and the accident to
plaintiff resulted therefrom, defend-
ant was # not liable, the defendant
having . furnished sufficient and
suitable hooks: Pellerin v. Inter-
national Paper Co., 96 Me. 388; s. c.
52 Atl. Rep. 842. In another case
the plaintiff was injured by the fall
of curbstones piled in tiers on a
wharf. The stones were lifted on
to the wharf by a crane, and piled
by plaintiff's fellow servants in
tiers, with sticks or pieces of wood,
selected by plaintiff's fellow serv-
ants, between the stones. The
stones in the piles were moved at
various times, as occasion required,
to get particular stones in each pile
as they were wanted; and it did
not appear how long the pile which
fell had been piled, or had been in
a dangerous condition. It was held

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§4000. Master Furnishing Suitable Appliances, but Servant
Using them for a Purpose Not Contemplated or Intended. — Where a
master discharges his duty by furnishing suitable tools, machinery, or
appliances, but the servant uses them for a purpose not contemplated
or intended, nor required by the orders under which he is working,
and, in so doing, receives an injury, he cannot make his own folly
or negligence a ground for recovering damages against the master. 00
A good illustration of this statement of doctrine is found in a case
where an employe" hauling buckets of tar upon a roof lost his balance,
and, in falling, grasped a triangular wooden 'liorse," used as an ap-
pliance in hauling up the buckets. The "horse" was insufficient to
withstand the strain, and fell with him. It was held, in an action
for the injuries sustained, based on the employer's negligence in not
furnishing proper appliances, that a peremptory instruction for the de-
fendant was proper ; since the fact that the "horse" fell when jerked by

that, in the absence of such proof,
the negligence, if any, was the im-
proper piling, or the furnishing of
improper dunnage between the
stones, both of which were acts of
fellow servants, and plaintiff was
therefore not entitled to recover:
Regan v. Lombard, 181 Mass. 329;
s. c. 63 N. E. Rep. 895. In another
case the plaintiff was injured while
at work in defendant's mine by a
piank which escaped from the rope
by which the timber-boss was low-
ering it down the shaft. The plank
was merely fastened with a half-
hitch around each end, and the ev-
idence was conflicting as to whether
that, or boring a hole and putting
the rope through, was the custom-
ary method of lowering such
planks. There was undisputed tes-
timony that defendant had fur-
nished augers, with which such
holes could be bored, which were
in the warehouse, to which the boss
had access. It was held that, de-
fendant having furnished proper
tools, it was not responsible for
neglect of plaintiff's fellow servant
in failing to use them: Erickson
v. Victoria Copper Min. Co., 130
Mich. 476; s. c. 9 Det. Leg. N. 120;
90 N. W. Rep. 291. When four or
five fellow servants were taking
down electric wires, and were not
acting under any regulations, the
cutting of a wire at the proper
place for the convenience of the
work, and to insure safety to the
employes, was a mere detail of the

work, which was for the judgment
and control of the workmen them-
selves, and not for the master to
regulate by adoption of rules for
their guidance; so that where
plaintiff's fellow servants cut a
wire so that it fell across a heavily
charged primary wire, and plaintiff,
not knowing the fact, was shocked
while handling it, the master was
not liable; the evidence showing
that plaintiff was acquainted with
the hazards of his employment:
Wagner v. Portland, 40 Or. 389; s. c.
60 Pac. Rep. 986; 67 Pac. Rep. 300.
The superintendent of a railroad
company told some bridge-carpen-
ters and trackmen to load some
rails on a car, and as they loaded
them a section foreman said "Up
high," and "Heave away," till the
third rail was being loaded, when
he failed to say "Heave away," and
orfe of the bridge-carpenters had
his hand jammed under the rail as
they were lowering It to the car.
It was held that the company was
not neelieent; it having no duty
to direct the details of such simple
work: Anderson v. Oregon R. Ac.
Co., 28 Wash. 467; s. c. 68 Pac. Rep.

"Graham v. Chicago &c. R. Co.,
62 Fed. Rep. 896; Fortier v. Lauzi-
er, Rap. Jud. Que. 14 C. S. 359. See
a learned note on this subject in
18 L. R. A. 124; also, Schmidt v.
Lelstekow, 6 Dak. 386; 8. c. 43 N.
W. Rep. 820.


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

the plaintiff did not show that it was insufficient for the use for which
it was intended. 61 But this does not exclude the conclusion that the
master may be liable where he has constructed an appliance for a

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 36 of 165)