Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

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particular use, but permits his servants to put it to another use, and
in so using it a servant is injured through its negligent construction.
This may, perhaps, be illustrated by a case where the defendant con-
structed a "dry well" of loose bricks for the purpose of receiving
waste water from the factory, which entered the well through pipes
at the bottom, along with a little steam. Afterwards the well was
used to receive waste steam, which was led into it by a pipe in the
top. The pipes in the bottom becoming stopped up by sediment, the
steam forced its way through them and through the walls of the well
into the surrounding earth, where it formed a hole underneath the
surface filled with steam, hot water, and hot mud. While the plain-
tiff was passing over the spot in the discharge of his duties the earth
gave way beneath him, precipitating him three or four feet into the
hole and scalding him severely. It was held that the defendant was

§ 4001. Suitable Machinery, etc., Furnished by Master, but Serv-
ant Injured in Consequence of its Negligent Use by his Fellow Serv-
ants. 68 — The liability of a master does not extend to a case where the
master furnishes reasonably safe tools, materials and appliances, and
commits their use to his servants, and one of them is injured, not by
a defect in the appliance, but by the negligent or improper use of it
either by himself or by his fellow servants. 64 On this principle it has
been held that where a mere foreman of work orders an ordinary em-
ploys to use a defective appliance not furnished by the employer for
such use, in consequence of which the employ^ so commanded is in-
jured, the negligence will be deemed that of a fellow servant, and the
master will not be liable; 66 otherwise in those jurisdictions where
such negligence is deemed to be that of a vice-principal. 66

"Bell v.. Refuge Oil-Mill Co., 77 wanick Co., 94 Me. 61; s. c. 46 Atl.

Miss. 387; s. c. 27 South. Rep. 382. Rep. 806.

"Lauter v. Duckworth, 19 Ind. "See ante, § 3806; post, § 4175.

App. 535; s. c. 48 N. B. Rep. 864. "Post, § 4852; Yaw v. ^itmore,

For a case where the plaintiff, in 37 App. Div. (N. Y.) 98; s. c. 55

endeavoring to effect a coupling in N. Y. Supp. 1091 (derrick properly

the gearing above a vat of hot dye, constructed, but improperly set up

slipped on the wet floor and fell in- by defendant's servants),

to the vat, and it was held that he *Butterworth v. Clarkson, 3

could not recover damages on tEe Misc. (N. Y.) 338; b. c. 52 N. Y. St.

ground that the defendant did not Rep. 9; 22 N. Y. Supp. 714.

furnish safe and sufficient ma- "Ante, §§ 3814, 3815; post, §§

chinery,— see Bessey v. Newicha- 4921,4940.


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§ 4002. Machinery Dangerous if Improperly Used. — It is said that
the fact that a machine may be dangerous if improperly used, or that
it actually injures its operator, is not the test of the master's lia-
bility. If the machinery is of ordinary character, and such as can
with reasonable care be used without danger to the servant, it is all
that can be required of the master. 87

§ 4003. Servant Selecting Something Insufficient where the Mas-
ter has Provided Materials or Appliances which are Sufficient. — A

master is not liable for injuries to a servant resulting from his se-
lection, from an adequate stock of suitable appliances, of an appli-
ance which was unsuitable for the purpose for which he intended to
use it, if such unsuitableness was the result either of a defect which
could not have been detected and provided against, with reasonable
care on the part of the master, or of its being too light for the use
for which it was intended. 68

§ 4004. Lack of Suitable Appliances. — Where a servant has been
injured from lack of appliances with which to do his work, it is
necessary, in order to make out his case, to show that no such appli-
ances were at hand. 69 If a necessary tool or appliance is not at hand,
and a servant quits his work and proceeds a short distance from his
place of work in order to procure one, he is deemed to be still acting
in the line of his employment, so that if he receives an injury from
some source, proceeding from the negligence of his master, he will
be entitled to recover damages. Thus, the plaintiff, in going along
a path to procure a ladder which was necessary in his work, and was
not more than twenty-one feet distant, and in plain sight, was not a
trespasser nor outside the line of his employment; so that he could
recover damages for an injury received through slipping into a tub
of scalding water beside the path and on a level with the ground, used
for receiving exhaust-steam, and having no cover, and of which he
had no knowledge. 70

§4005. Defects or Dangers Suddenly Appearing. — An employer
is not chargeable with negligence by reason of a defect which sud-

91 Smith v. Foster, 93 111. App. selected for the purpose a valve

138 (experienced employe^ Injured which was either too light, or else

by bursting of emery-wheel fitted contained some latent defect which

up in standard way; employ^ stood reasonable care would not have dis-

in front of it to do his work, know- closed). „

ing it was unsafe to do so). "Cogan v. Burnhanv 175 Mass.

"Toohey v. Equitable Gas Co., 391; s. c. 56 N. E. Rep. 585.

179 Pa. St. 437; s. c. 36 Atl. Rep. TO Conley v. Lincoln Foundry Co.,

314 (employ^ whose 1 duty it was to 14 Pa. Super. Ct. 626.
supervise the testing of gas-wells

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

denly appears in a tool or instrumentality furnished an employ^, un-
less he has been remiss in testing the same, or knew or ought to have
known of the defect. 71 The fact that a floor in a mill had been in a
dangerous condition three hours by reason of grease left thereon By
employ6s in the mill, has been held insufficient to charge the master
with constructive notice of the defect, so as to render him liable for
failure to furnish safe premises.™

§ 4006. Injuries to Servants Through the Sudden Starting of Ma-
chinery. — The cases are numerous where servants have recovered
damages from their masters for injuries received in consequence of
the sudden starting up of machinery. Where the evidence, if believed
by the jury, shows that this is due to defects in the machinery for
which the master is responsible, and the risk of injury from which the
servant has not assumed, the ground of recovery is clear. It was so
held where the plaintiff was injured in operating a mangle in the
defendant's laundry, by reason of the fac^ that the machine, while it
would run smoothly for a while, would stop, and then start up with
a jerk, making it dangerous to the hands of the person feeding it,
where the plaintiff was not advised of the danger, which was not ap-
parent. 7 * Quite in conformity with this doctrine, and in the appli-

n Atchison &c. R. Co. v. Napole,
55 Kan. 401; s. c. 40 Pac. Rep. 669
(lever of hand-car had been bent
In a collision, and straightened
while cold, which tended to weaken
and impair the fibers of the iron;
foreman of section-gang and assist-
ant roadmaster knew of its being
bent and weakened — held to be no-
tice to the company).

"Burke v. National India Rubber
Co., 21 R. I. 446; s. c. 44 Atl. Rep.
307. In another case, the evidence
disclosed that the death of the
plaintiff's husband was caused by
the derailment of the engine on
which he was fireman, by a horse
escaping on to the track through
a fence which it was the duty of
the defendant to repair; that the
fence consisted of barb-wire and
a plank, that the plank was placed
between the top and second wire,
which were about three feet apart,
that such plank was off for about
fifteen hours before the accident,
and that the horse escaped between
such wires; that such defect in the
fence was about a mile from a sta-
tion. It was held that defendant
was not guilty of negligence in not


ascertaining and repairing the de-
fect before, the accident; since the
defect was not such as would. cause
an ordinarily prudent person to ap-
prehend danger and difficulty from
its existence; and if it had been,
fifteen hours was not an unreason-
able time for it to exist without be-
ing discovered: Goodrich v. Kansas
City &c. R. Co., 152 Mo. 222; s. c.
53 S. W. Rep. 917.

"United States Laundry Co/ V;
Schilling, 21 Ky. L. Rep. 1798; s. c.
56 S. W. Rep. 425 (no off. rep.).
Where the evidence showed that a
machine, which in proper working
order would make but one cut and
then stop, was reported to the fore-
man of the defendant, about two
years before the injury to the plain-
tiff, as repeating itself, and starting
from a stop, and that the plaintiff
also reported that the machine re-
peated itself on the day when he
was Injured by reason of the ma-
chine starting from a dead stop,
and the evidence also tended to
show that certain defects found
in the machine after the acci-
dent would cause the machine to
start from a dead stop, — this

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cation of the rule of res ipsa loquitur, which sometimes applies in
actions by servants against their masters for negligent injuries, — it
has been held that the fact that mill machinery, which was started
and stopped by the pulling of ropes attached to a lever in the room
above, began to move without apparent cause when the ropes were in
the position proper to keep it at rest, thereby inflicting injuries on an
employe who had no notice that it was liable to do so, and who had
received instructions from his superior that the use of the rope was
necessary to start the machinery, is prima facie evidence of some want
of care in its original construction or then condition, and casts the
burden of explanation upon his employer. 74 In other cases the right
of recovery has been made to rest upon the negligence of the superin-

was held to be sufficient proof
of the defendant's negligence to
take the case to the jury:
Packer v. ThomBon-Houston Elec-
tric Co., 175 Mass. 496; s. c. 56 N. E.
Rep. 704. Where the evidence
tended to show that the plaintiff
was injured by the sudden starting
of a threshing-machine separator,
while he was working on the same,
by reason of the defective condition
of the valves of the engine, which,
from a leakage of steam, was liable
to Btart at juiy moment, but the
defective condition of which was
unknown to the plaintiff; and there
was evidence that the plaintiff's
employer had said that he would
wait until the threshing was over
at that ranch before he had the en-
gine repaired, — there was sufficient
evidence of negligence on the part
of the master to sustain a verdict
for the plaintiff: Hencke v. Bab-
cock, 24 Wash. 556; s. c. 64 Pac.
Rep. 755. In another case it ap-
peared that a woman employed in
a laundry lost her right arm while
operating a clothes-drier. The ma-
chine was put in and out of opera-
tion by pushing a lever, whereby
the belt was thrown from the fixed
pulley on to a loose pulley, and vice
versa. Plaintiff, after drying some
clothes in the machine, stopped it
absolutely, as she claimed, and put
her hand in the drier to take out
the clothes, when the belt slipped
and started the machine, and her
arm was taken off by the revolving
of the drier. There waB direct evi-
dence that the pulley, belt, and
shifter were defective. It was also
shown that the machine had been

successfully operated without start-
ing, except by use of the lever, for
weeks before and immediately
after the accident. It was held that
the evidence sustained a finding
that the injury was occasioned by
defective machinery, which could
have been discovered and remedied
by due care: Thlel v. Kennedy, 82
Minn. 142; s. c. 84 N. W. Rep. 657.
Plaintiff was injured,* while engaged
in feeding washed goods into an
ironing-mangle in a laundry, by
having her hand drawn into the
machine, as she alleged, by a sud-
den acceleration of the speed ot the
machine. The plaintiff's evidence
tended to show that the machine
was not in good working-order, but
was defective, which caused the
machine to jerk in its operation,
and its speed to be suddenly in-
creased; that it needed adjusting
some days fifteen or twenty times;
that the unsafe condition was
known to defendant; and that
plaintiff did not resume her work
until assured by defendant's man-
ager that the machine had been
properly adjusted and repaired.
Defendant's evidence contradicted
the material portion of plaintiff's
testimony and her witnesses. It
was held that, if the evidence of
plaintiff's witnesses was believed,
it established the plaintiff's right
to recover, and hence the case was
properly submitted to the jury:
Young v. Mercantile Steam Laun-
dry Co., 198 Pa. St. 553; s. c. 48
Atl. Rep. 497.

"Blanton v. Dold, 109 Mo. 64;
s. c. 18 S. W. Rep. 1149.


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•i Thomp. Neg.] duties and liabilities of the master.

tendent or other person, who, under the common or the statute law,
stands as the vice-principal of the master in ordering the machinery
to start without giving the proper warning. 76 Without regard to the
source of the injury, whether the defectiveness of the machinery, or
the negligence of the master or his vice-principal in starting it up
suddenly and without warning, and always excepting cases where it
is to be ascribed to the negligence of a fellow servant, where the rule
which puts upon one servant the risk of injury from the negligence of
a fellow servant prevails, — a servant injured by the starting of ma-
chinery without any warning, does not assume the risk even though
the master has failed to provide any means of warning him, since
servants cannot, be held to assume risks that are unreasonable or ex-
traordinary, or that arise from the negligence of the master. 76 It need
not be said that, where machinery is allowed by the master to run with-
out warning to a servant who is engaged in repairing the machinery
and who has been led to believe by the master that it is at rest, whereby
he is injured, it is due to the personal negligence of his master, and the
servant may recover damages. 77

"In one such case it appeared
that the plaintiff operated a ma-
chine in the . defendant's factory,
which, becoming defective, the su-
perintendent attempted to repair.
After doing some work on it he
told plaintiff to "start up," in doing
which her hand was injured. The
superintendent testified that his or-
der merely meant for plaintiff to
start the machine by placing her
foot on the treadle, so that he could
see whether the machine worked
all right; that he did not mean for
her to resume her work, which
would require her to rest her hand
on the machine. The evidence was
contradictory, but it was held to
justify a finding that the superin-
tendent had reason to know that
the plaintiff might understand his
order as a command to see, by re-
suming work, whether the machine
was all right; that she so under-
stood it, and was justified in such
understanding and in attempting
to resume her work; that while
starting the machine, in the exer-
cise of due care, plaintiff's hand
was thrown from its usual place
by the unusual shaking of the ma-
chine, and injured; and that the
order of the superintendent was
negligent; — making a case for the
plaintiff: Eaves v. Atlantic Nov-
elty Man. Co., 176 Mass. 369; s. c.


57 N. E. Rep. 669. In another case
it was held that an ice company
was guilty of negligence rendering
it liable to an employe injured
by the starting up of the machinery
in a slide while he was at work
therein making some Vepairs under
orders from the superintendent and
general manager, where the latter
not only went away from his post
at a bell-cord intended to notify
the engineer when to start and
stop, but also failed to conform to
a rule of the company requiring the
engineer to be personally notified
wl\en any person was in the slide,
so that the engine would not be
started at a signal from the bell,
nor without specific orders to start
again; and a piece of material
thrown by such employe from the
slide struck the bell-cord, rang the
bell, and caused the engineer to
start the machinery: Gerrish v.
New Haven Ice Co., 63 Conn. 9;
s. c. 27 Atl. Rep. 235.

n Chicago Ac. R. Co. v. Spurney,
197 111. 471; s. c. 64 N. E. Rep. 302;
aff'g s. c. 97 111. App. 570.

^Kinney v. Folkerts, 78 Mich.
687; s. c. 44 N. W. Rep. 152. The
fact that a machine which an em-
ploye is repairing is set in motion
by touching some part of the mech-
anism thereof, does not prevent
a recovery for an injury which

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§ 4007. Injuries to Servants through the Sudden Starting of Ma-
chinery where the Master was Exonerated. — Other decisions are
found where servants have been injured in consequence of the sudden
starting of machinery, and where on one ground or another the mas-
ter was exonerated from liability. For example, it was held that a
cotton-mill owner was not liable to an employ^ for injuries sustained
while cleaning the gears on a spinning-frame at the cleaning hour,
due to the starting of the frame without notice by the spinner, who
was a competent and ordinarily careful employ^. 78 But here the serv-
ant (a doffer) who was injured and the spinner were deemed to
stand in the relation of fellow servants. In another such case the
plaintiff, an assistant to the operator of a machine used in cutting
iron,, was standing at the machine pulling scrap-iron out of a heap,
and placing it convenient to the operator's hands. While doing this
the operator passed between the plaintiff and the machine, and, with
his back turned toward the plaintiff, who was pulling iron out of the
heap, started the machine. Within two seconds after the operator
passed him, the plaintiff presumably stumbled or slipped while pull-
ing out the iron, and placed his hands between the shears of the ma-
chine, thereby losing his fingers. It was held that it was not negli-
gence on the part of the operator to start the machine without notice
to the plaintiff, as an ordinarily prudent person would not have
anticipated that the boy would put his hands between the shears, and
as he did not intend to do so and it was no part of his duty to touch
the shears. 79

wwiid not have happened but for
the fact that the power of the over-
head shaft is on without his knowl-
edge and contrary to his reasonable
expectation: Martineau v. Na-
tional Blank Book Co., 166 Mass.
4; s. c. 43 N. E. Rep. 513 (defects
In belt anfl overhead driving-pulley
caused belt to creep from -loose to
tight pulley on machine; such mo-
tion as plaintiff caused by touch-
ing the mechanism of the' machine
would not have been forcible
enough to injure him, had it not
been for the power from the over-
head shaft taking up and continu-
ing the motion). Condition of evi-
dence, in a case of this kind, under
which the jury were warranted in
finding that the proximate cause of
the injury was the negligence of
the defendant: Wells v. Bourdages,
88 111. App. 473.
'■Fournier v. Columbian Man.

Co., 70 N. H. 629; s. c. 44 Atl. Rep.

n Glover v. Kansas City Bolt Ac.
Co., 153 Mo. 327; s. c. 55 S. W. Rep.
88. It has been held that an owner
of a stone quarry is not liable for
the death of an employs engaged
in unloading coal from a car, by the
sudden moving and collision with
that on which he was engaged, of
two heavily-loaded cars secured on
a grade by one brake and one
chock under the wheels, unless in
the exercise of ordinary care such
method of securing them was in-
sufficient, — especially where such
employ^ is conversant with the
danger: Hoosier Stone Co. v. Mc-
Cain, 133 Ind. 231; s. c. 31 N. E.
Rep. 956 (special verdict did not
find the use of one brake and one
chock to be negligence, nor did it
state the degree of the grade or the
size of the chock used; so that the


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

§ 4008. Effect of Master's Assurance that an Appliance is Safe. 80 —
Where the defendant's agent, who employed the plaintiff to work,
and who directed him what to do, told him to get a particular mule,
and assured him that it was safe, and it turned out to be unsafe and
vicious, to the injury of the plaintiff, — it was held that the defendant
was bound by the statement of his agent and must pay damages, in the
absence of evidence showing that the plaintiff knew that in fact the
mule was dangerous. 81

§4009. Employer Need Not Own the Dangerous Machine by
which Employ6 is Injured. — It is scarcely necessary to say that the
fact that an employer does not own a machine, does not relieve him
from liability for an injury to an employ^ caused by a defect therein,
where, through his superintendent, he pays for the use of such ma-
chine, and it is set up and used under the superintendence of his fore-
man and representative, though the fact that such machine is being
used is not known personally to the eihployer. 82

§4010. Temporarily Bemoving Safety-Appliances. — It seems to
have been well held that an employer is not negligent toward an em-
ploy6 in temporarily removing a safety-appliance of his own inven-
tion with which the employ^ was accustomed to work the machine,
and ordering him to work without it, if he gives proper instruction
and warning to the employ^, and such appliance is not in general use
in the business. 88

§4011. Various Defects with Eespect to which Negligence has
been Imputed to the Master. — It has been held that liability of the
master for injuries to a servant cannot be based upon the mere fact that
a car used for carrying refuse had accidentally "dumped" in operation,
and that there was a slight straightening of the hook used for fastening
the side of the car, not shown to have been defective enough to have
had any connection with the accidental dumping; 84 nor upon the fact

court could not determine the ques- * Reese v. Hershey, 12 Lane. L.
tion as a matter of law. The spe- Rev. (Pa.) 353 (removal of guard
cial verdict found that the two cars from in front of roll? of candy-
causing the collision were made to making machine),
move by other cars being moved M Soderman v. Kemp, 145 N. T.
down to them from the quarry, but 427; s. c. 65 N. Y. St. Rep. 352; 40
did not find this to be negligence). N. E. Rep. 212; rev'g s. c. sub nom.
80 See post, §§ 4072, 4664. Soderman v. Troy Steel Co., 70 Hun
"East Jellico Coal Co. v. Stewart, (N. Y.) 449. It was the duty of
24 Ky. L. Rep. 420; s. c. 68 S. W. the employes to fasten the hooks
Rep. 624 (no off. rep.). holding the body of the car in place
"Higgins v. Williams, 114 Cal. after it was dumped; no dumping
176; s. c. 45 Pac. Rep. 1041. similar to the one causing the in-


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that.the master had failed to provide a more secure door for a carding-
machine, which door, after having been in use in the defendant's mill
for a number of years without having caused an injury, fell out while
a servant was dusting the machine, allowing his hand to slip through
into the machinery, it appearing that the plaintiff was experienced
in the use of machines, had never made a complaint that the fasten-
ing was defective, and on his recovery had returned to his work without
suggesting any change in the fastening. 86 A workman employed upon
a traveller on an elevated track, used for moving heavy stone, whose
duty requires him to go to the ground, and who steps, in descending,
upon a shaft, which suddenly revolves when a gust of wind strikes
the traveller, causing his ankle to be drawn into the bevel gearing
and crushed, is injured in the line of duty, without his fault, and by
reason of the master's neglect to secure the wheels of the traveller,
which are usually wedged, the master knowing it is necessary to keep
the traveller from being moved by the wind, and which the employ6
has reason to believe are wedged at the time, where the employ^ can-
not see from his position that this precaution has been omitted, and
cannot see without making a close inspection ; and he is entitled to a
recovery. 8 * Where the evidence showed that the machine from which
the injury proceeded, when properly constructed, could be thrown out

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 37 of 165)