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Commentaries on the law of negligence in all relations online

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was unnecessary to warn him of the
set-screw; and that it was unneces-
sary for the further reason that the
set-screw was visible when the ma-
chine was at rest (though the plain-
tiff was not shown to have had any
duties to perform near the machin-
ery when it was at rest) . The plain-
tiff also testified • that immediately
after the accident he noticed that
no hemp was caught in the pulleys
or belt; and there was corroborative
evidence to this effect by the oper-
ator of the machine, who looked


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4 Thomp. Neg.l duties and liabilities op the master.

negligent in allowing a set-screw to project beyond the hub of a pinion-
wheel, yet such negligence was not the proximate cause of an injury
to an oiler who was caught by it while attempting to fill the oil-cup of
a loose pulley two or three feet away from the pinion, and eighteen
inches above and twelve inches back of the shafting, the set-screw be-
ing on the side of the pinion away from the pulley, and the chances
of injury from it being very remote if the plaintiff placed his ladder
in the natural and proper position for reaching the oil-cup, as he
testified he did. 48

§ 4023. Canadian Doctrine that an Employer whose Servant is In-
jured by an Unguarded Set-screw is Liable. — In sublime contrast from
the infamous decisions collected in the preceding paragraph are the
reasoning and judgment of the Supreme Court of Canada. In a case
of this kind, the reasoning of the court was that the application of the
principle that the responsibility of the employer is that of a bon pere
de famille requires at his hands care and protection against even the
mistakes and thoughtlessness of the servant, in the performance of
acts in the ordinary discharge of his duties. While the employer may
not be responsible for the consequences of. unusual or unnecessary acts
of the workman, and while certainly he is not responsible for acts
committed in violation of orders or in defiance of ordinary rules of
self-protection, a greater degree of prudence may be enforced against
an employer is protecting his workmen against possible dangers, than
can be exacted from the workmain. From the employer is expected the
prudence of experienced judgment ; from the workman, obedience only
to express orders and general principles of safety and self-protection.
In the present case, therefore, where the wedge of a screw on a re-
volving shaft was left projecting near where the workman was em-
ployed, and his clothing caught thereon, the employer was held re-
sponsible although the accident might have been avoided by greater
care on the part of the workman. 49

§ 4024. When Servant Deemed to Accept the Bisk of Injury from
such Unguarded Machinery. — If it is not consistent with the due
conduct of his business to cover, fence or guard such dangerous ma-
chinery or places, and if his servants have been duly warned and in-
structed concerning the dangers which they thereby incur, then such
dangers will be deemed to be a part of the ordinary risks of the em-

around immediately after the plain- M Groff v. Duluth Imperial Mill
tiff was Injured: Rooney v. Sewall Co., 58 Minn. 333.
Ac. Cordage Co., supra. m George Matthews Co. v. Bou-

chard, 28 Can. S. C. 580.


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ployment, which the servant accepts when he enters into it, under
principles hereafter to be considered. 80

Article III. Derricks, Lifting-Cranes, etc., and their



4026. Care demanded of master in

the construction and opera-
tion of derricks, lifting-
cranes, etc.

4027. T2are in selecting the materials

from which such appli-
ances are constructed.

4028. Distinction between perma-

nent structures and tempo-
rary devices.

4029. Allowing parts of derricks to

become worn out and de-


4030. Defects with respect to which

the employer was held

4031. Defects with respect to which

the employer was exoner-

4032. Operation of the New York


4033. Operation of the English

Workmen's Compensation

4034. Faults in the operation of der-

ricks with respect to which
negligence has been as-
cribed to the master.

§ 4026. Care Demanded of If aster in the Construction and Opera-
tion of Derricks, Lifting-Cranes, etc. — The reasonable or ordinary care
demanded of a master in the construction of the appliances with which
his servant is to work, applies to such dangerous appliances as der-
ricks, lifting-cranes, etc. ; and, on a principle already considered, 1 it is
a care in proportion to the danger or to the risk of injury to be
avoided. 1

§ 4027. Care in Selecting the Materials from which such Appli-
ances are Constructed. — It need not be said that the ordinary care or
reasonable care of the law is demanded of a master in -selecting the ma-
terials from which to construct a derrick to be used by his servants. 8

"Post, § 4608, et seq.; Young v.
Burlington Wire Mattress Co., 79
Iowa 415; s. c. 44 N. W. Rep. 693.

*Vol. 1, 5 25; ante, § 3772.

'Rollings v. Levering, 18 App.
Div. (N. Y.) 223; s. c. 45 N..Y.
Supp. 942 (such care demanded of
a master who furnishes only the
hooks actually used for sustaining
a scaffold used in painting a build-
ing, the painters being given no
power of selection).

a Ambrose v. Angus, 61 111. App.
304. Where an employe in the de-

fendant's iron-works was injured by
the breaking of the clamp to which
a derrick guy-rope was fastened,
and the clamp had been forged in
defendant's shop from material fur-
nished by it, and the derrick had
been In use only from two to six
weeks; and there was expert testi-
mony that the break could have
been caused only by the use of de-
fective materials in making the
clamp, or the subsequent over-
straining of the derrick; and there
was evidence ttytt a derrick should



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

§4028. Distinction between Permanent Structures and Tempo-
rary Devices. — Here, as elsewhere, 4 a seemingly sound distinction is
taken between permanent appliances and tools furnished by the master
for the use of his servants, and those temporary devices provided by
the servant^ themselves to meet particular exigencies in the progress
of the work. For example, an ordinary derrick remaining in one
place for a considerable space of time and until the completion of
the work for which it is used, is a permanent structure, within the rule
that a master must use reasonable care in providing his servants with
suitable appliances with which to perform his work, and in keeping
such appliances in a reasonably safe condition of repair. 6 So also,
where a scaffold between piers in a river for the erection of a bridge
fell, in course of construction, injuring a workman, by reason of the
piles having been too short and of the absence of sufficient braces
where a crane for lifting material was placed, the negligence did not
relate to a mere detail of work entrusted to the fellow servants of
the injured workman so as to relieve the master from liability. 6 But
on the other hand, an employer is not liable for an injury resulting
from a defective block and hook used as a temporary incident of a
particular job. 7 So also, an employer who furnishes his employes
with a derrick and with the necessary appliances intended to be used
in different parts of the building in process of construction, does not,
in the absence of statute, owe to them the duty of setting it up and
, supporting it at each place where it may be required. 8

be inspected at least once a day, but
that the derrick in question was
not inspected more than twice a
week, and then only by the eye, the
inspector standing on the ground, —
it was error, in an action for the
injuries sustained, to take the ques-
tion of defendant's negligence from
the Jury; since the evidence war-
ranted the inference that the clamp
was made of defective material or
had been overstrained, and that
such condition could have been de-
tected by a proper inspection:
Welsh v. Cornell, 49 App. Div. (N.
Y.) 203; s. c. 63 N. Y. Supp. 44.
In an action for the death of an
employs caused by the breaking of
the boom of a derrick which he was
operating, evidence that when the
boom was selected and put in use
it was unfit for the purpose intend-
ed, because of the fact that at the
point where it subsequently broke
there were several knots which ren-
dered it unsafe, insufficient to sus-


tain a finding that defendant failed
to furnish reasonably safe instru-
mentalities for the performance of
the work: Attlz v. Minnesota Sand-
stone Co., 85 Minn. 142; s. c. 88 N.
W. Rep. 436.

4 Ante, S 3999, et seq.

B Yaw v. Whitmore, 46 App. Div.
(N. Y.) 422; s. c. 61 N. Y. Supp. 731;
8. c. aft'd, 167 N. Y. 605 (mem.) ; 60
N. E. Rep. 1123; s. c. on former ap-
peal, 37 App. Div. (N. Y.) 98.

•Pursley v. Edge Moor Bridge
Works, 56 App. Div. (N. Y.) 71; s.
c. 67 N. Y. Supp. 719; s. c. aff'd, 168
N. Y. 589 (mem.); 60 N. E. Rep.

'Harnois v. Cutting, 174 Mass.
398; s. c. 54 N. E. Rep. 842 (ar-
rangement of ropes and blocks used
in moving a building was made by
fellow servants of plaintiff, and
block bearing defective hook was
taken from among a number of
suitable ones).

"Kennedy v. Jackson Agric. Iron

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§ 4029. Allowing Parts of Derricks to become Worn Ont and De-
fective. — So also, it is not enough that the master exercises reasonf
able care to the end of furnishing for the use of his servants a rea-
sonably safe derrick in the first instance; but he is, on a principle
already considered, 9 under the duty of maintaining a reasonable and
continuous inspection to the end of seeing that it does not fall into a
state of ill repair, and he is held to the exercise of reasonable care and
skill in -keeping it in good repair. 10

Works, 12 Misc. (N. Y.) 336; s. c.
33 N. Y. Supp. 630; 67 N. Y. St
Rep. 336. But a recent statute of
New York changes this rule: Port,
S 4032.
• Ante, i 3786.

» In a case illustrating this prin-
ciple it appeared that the plaintiff,
while riding on an iron column
which was being raised by a der-
rick, as it was his duty to do,
was injured by the column and
boom of the derrick falling. The
operator of, the derrick testified that
a pin connected with the derrick,
and holding the gear in a position,
was much worn, and had been de-
fective for some time, and that the
vibration from the machinery would
cause it to drop from its place, and
that after plaintiff's fall the pin
was found out of position. This
evidence was corroborated by testi-
mony of another operator. It was
held that the evidence was suffi-
cient to sustain a verdict in plain-
tiffs favor: Union Bridge Co. v.
Teehan, 190 111. 374; s. c. 60 N. E.
Rep. 533; aff'g s. c. 92 111. App. 259.
In another such case the plaintiff's
intestate, employed by defendant,
was killed by the breaking of a mast
of a derrick used in lifting stone,
the mast being "powder-posted" and
dry-rotted in the center. Deceased
watched for and answered signals
from the bottom of the quarry, and
gave them to the engineer, took care
of and oiled the derricks, and di-
rected the disposition of slack from
the quarry. The mast had been con-
structed of spruce timber three and
'one-half years before, and had been
covered with two coats of paint
while it was green, which would
tend to shorten its life and make it
dozy and rotten within, but it was
apparently sound, the paint making

a hard outer surface. Four months
before the accident the derrick was
moved, and defendant's superin-
tendent and another employs,
whose duty was to take care of the
mill and machinery, examined the
mast, stabbed into it with a knife,
cut off some shavings, but did
not bore into the mast to see
whether it was found in the cen-
ter, by doing which the rotten con-
dition which caused the breaking
would have been discovered. No
subsequent examination was made.
It was held that it was error to
nonsuit plaintiff, since there was
sufficient evidence from which the
jury might have inferred that the
master had failed in its duty of in-
spection, and that such omission
caused the Injury: Jarvis v. North-
ern New York Marble Co., 55 App.
Div. (N. Y.) 272; s. c. 67 N. Y.
Supp. 78. In still another case an
employ^ was injured by the break-
ing of a bolt at the top of the mast
of a derrick, which let the boom of
the derrick fall. The head of the
mast was out of repair, and several
attempts had been made by the
workmen to repair it The bolt,
when put In, was in good condition,
and was open to Inspection, and
could and should have been inspect-
ed by the workmen. The derrick had
been In use for some years, and had
not been Inspected by defendant
from the time of its erection. The
employ^ was familiar with the use
of derricks. It was fceld that it
was for the jury to say whether
the injury was caused by defend-
ant's negligence, or whether such
employees own negligence contrib-.
uted thereto: Dyer v. Pittsburg
Bridge Co., 198 Pa. St. 182; s. c. 47
Ati. Rep. 979.

VOL. 4 THOMP. NBG. — 17


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

§ 4030. Defects with Respect to which the Employer was Held
Liable. — Under various conditions of fact the employer has been held
liable where the steel cables supporting a derrick were old and had
been used on another job, and the outer surface had become worn, and
many of the wires were broken, and the cable broke, injuring an em-
ploy^; 11 where a derrick was erected by. experienced men, but was
thereafter removed, under the direction of the master, by inexperi-
enced workmen, and the master made no inspection to see whether it
had been properly erected after removal, and a servant was injured by
its fall. 1 * In another case a brakeman on a freight-train was killed
by the falling of derricks placed on each side of the track, and used
by an independent contractor to unload heavy stones from the cars
on the track. The derricks were fastened together by overhead wires,
and were kept in position by guy-ropes fastened to posts, one of which,
a fence-post, was decayed. The fall was caused by the breaking and
pulling up of sueh posts. It was held that the railroad company was
negligent in failing to furnish plaintiff a reasonably safe place to work
while operating its own trains over its own tracks, which duty is
inherent in the contract of employment. 18

§ 4031. Defects with Respect to which the Employer was Exoner-
ated. — In one such case the plaintiff, an employ^ of the defendant, was
injured by the breaking and falling of a clamp to which the guy-rope
of a derrick was attached. In an action to recover therefor there was
no evidence that there was any defect in the iron of which the clamp
was made, or that it was not properly maintained, except such as
might be inferred from the fact that it broke. There was no evidence
that the defendant knew of, or with reasonable diligence might have
ascertained, the supposed defect. It was held insufficient ttf justify
a verdict for the plaintiff. 14 In another such case it was held that an

"Yaw v. Whitmore, 46 App. Div. after a casual examination by an

(N. Y.) 422; s. c. 61 N. Y. Supp. expert, had adopted them to the

731; s. c. afTd, 167 N. Y. 605 use of stays for his derrick);

(mem.); 60 N. B. Rep. 1123; s. c. Scandell v. Columbia Const Co., 60

on former appeal, 37 App. Div. (N. App. Div. (N. Y.) 512; s. c. 64 N.

Y.) 98. Y. Supp. 232 (pin joining plate to

"Westbrook v. Crowdus (Tex. a spar became loose 'and wabbled
Civ. App.), 58 S. W. Rep. 195 (no and an accident followed); Burn-
off. rep.). • side v. Novelty Man. Co., 121 Mich.

"Gulf Ac. R. Co. v. Delaney, 22 115; Hustis v. James A. Banister

Tex. Civ. App. 427; s. c. 55 S. W. Co., 63 N. J. L. 465.
Rep. 538. See also, Jacobson v. 14 Welsh v. Cornell, 168 N. Y. 508;

Johnson, 87 Minn. 185; s. c. 91 N. s. c. 61 N. E. Rep. 891; rev'g s. c.

W. Rep. 465 (stays were twenty 49 App. Div. (N. Y.) 203; 63 N. Y.

years old, and had been used for Supp. 44. It has been held that an

eighteen years for another purpose; employer is not chargeable with

and the employer, without having negligence for the failure of his

any special knowledge himself, and foreman employed to superintend


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operator of a steam-crane is not chargeable with reckless indifference
to consequences, in swinging back the crane in the usual manner, be-
cause of the presence of other employes in the way, when he knows
that such employes are aware of the operation and are instructed to
get out of the way of the crane, and they have always previously done
so, and the pl&intiff was warned of its approach in time to have got
safely out of the way had he made any effort to do so. 1 .*

§ 4032. Operation of the New York Statute. — A statute of New
York 10 provides that an employer shall not furnish or erect hoists or
other mechanical contrivances which are unsafe, unsuitable, or im-
proper, and which are not so constructed, placed, and operated as to
give proper protection to life and limb. A derrick was constructed
in such a manner that it was necessary, in operating it, to remove a
large proportion of its supports, and make its safety depend upon the
watchfulness and care of a fellow servant in restraining the swinging
of a boom, which, if neglected, would cause a collapse of the whole
structure. Evidence offered in behalf of an employ^ injured by its
collapse tended to show affirmatively that such construction was im-
proper. It was held to make a case for the jury, the concurring neg-
ligence of a coservant in- the matter of operation furnishing no de-
fense. 17 Under this statute a master is responsible for a scaffold so
defective that it is not sufficient to bear the burden placed upon it
because of his failure to brace the uprights, notwithstanding the fact
that he furnished sufficient and proper material and entrusted its
construction to competent employes. 18

§ 4083. Operation of the English Workmen's Compensation Act. —

The American practitioner may possibly derive aid, by analogy to
some of the American statutes, by examining decisions which have

mason-work, to see that the check- 200; aff'g on rehearing 8. c. 2 S. D.

rope was attached to a derrick em- 422; 50 N W. Rep. 907 (state of

ployed about the building, by rea- evidence held not conclusive that a

son of which a bricklayer ordered derrick which was allowed to swing

by the foreman to work near the across a railroad-track, injuring a

derrick Was injured by its fall: brakeman who came in contact with

Jenkinson v. Carlin, 10 Misc. (N. the chain of it, had been placed in

T.) 22; s. c. 62 N. Y. St. Rep. 643; care of the station-agent, who was

30 N. Y. Supp. 530 (negligence was deemed a fellow servant, so as to

that of man in charge of derrick, relieve the company from liability),

who was a fellow servant with »• Laws N. Y. 1897, c. 415, § 18.

plaintiff; and the foreman was not 1T Walters v. George A. Fuller Co.,

a vice-principal). 74 App. Div. (N. Y.) 388; s. c. 77

■ Anniston Pipe Works v. Dickey, N. Y. Supp. 681.

93 Ala. 418; s. c. 9 South. Rep. 720. "Stewart v. Ferguson, 34 App.

See also, Gates v. Chicago Ac. R. Div. (N. Y.) 615; s. c. 54 N. Y.

Co., 4 S. D. 433; s. c. 57 N. W. Rep. Supp. 615.


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

been rendered under the English Workmen's. Compensation Act of
1897, § 7, some of which are noted in the margin. 19

§ 4034. Faults in the Operation of Derricks with Respect to which
Negligence has been Ascribed to the Master. — Negligence was imputed
jo the master where a foreman and an employ^ were engaged in un-
loading stone with a derrick, and a stone had become obstructed, and
the foreman allowed the derrick to continue to move without stopping
while the servant was endeavoring to get the stone loose, — the fore-
man, of course, being regarded as a vice-principal ; 20 and where the em-
ployers of men hired to operate a derrick were often present at the
place where it was erected and operated, and it fell because of the
displacement of a key which was in plain sight, the fall being due
to its not being properly erected, — the conclusion being that such facts
might be found to establish a personal duty of the employers, when
present, to inspect the derrick and to see that the key was properly
fastened. 21

Article IV. Electrical Appliances. 1

Section Section

4036. Electrical appliances. fects in electrical appll-

4037. Further of injuries from de- ances not obviously dan-

fective electrical appli- gerous.

ances. ' 4039. Breaking of elevator of elec-

4038. Servant injured through de- trie-light tower.

§ 4036. Electrical Appliances,— A person or corporation operating
electrical appliances is bound to exercise reasonable care to the end
that such appliances shall be so protected, insulated, and operated,
as not to subject his or its servants to unnecessary danger ; and here,
as in other cases, 2 this care is a care proportionate to the danger to be
avoided. In the neighboring Province of Quebec, whose jurisprudence
is founded upon the French civil law, this obligation is described in

"Wood v. Walsh, [1899] 1 Q. B. in constructing or repairing a build-

1009; s. c. 68 L. J. Q. B. (N. S.) lng more than thirty feet high, al-

492 (repairs done on a building though the scaffolding itself is less

more than thirty feet high, " by than thirty feet from the ground, is

means of a ladder placed outside within the statute). See also, post,

the building, with one end of a § 4575, et seq., where this act is

plank tied to a rung of the ladder, more fully considered,

and the other end resting on a "Dolese &c. Co. v. Schultz, 101

window-sill for the purpose of 111. App. 569.

standing on it, are not repairs done n McMahon v. McHale, 174 Mass.

"by means of a scaffolding," within 320; s. c. 54 N. B. Rep. 854.

the statute); Hoddinott v. Newton, x See ante, § 3980; post, § 4118.

T1899] 1 Q. B. 1018; s. c. 68 L. J. 'Vol. I, § 25; ante, § 3772.
Q. B. (N. S.) 495 (scaffolding used


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language which would be adopted by an American court only in de-
scribing the care demanded of a common carrier of passengers. It is
there reasoned that an electric light and power company owes to a
lineman the duty of using the utmost care and adopting every pre-
caution and all known devices which can be taken to prevent live
wires causing accidents ; and where there is evidence that there was a
precaution which might have been taken but was not adopted, the
company is liable.* No doubt, in the application of the rule thus
described, the same result would be reached under the American rule
of ordinary or reasonable care. In that country an electrical power
company has been held liable for the death of an employ^ from an
electric shock from a wire not properly insulated, where it failed to
provide him with protecting gloves, which it was accustomed to fur-
nish its employes when engaged in similar work, and which would
have prevented the accident. 4 An electric-supply company, having a
contract with an electric-railway company by which the supply com-
pany has the right to use the poles of the railway company to sustain
its feed-wire, has been held liable for an injury to an employ6 caused
by the breaking of an unsafe pole which such employ6 had climbed
for the purpose of removing the feed-wire, where he had no knowl-
edge of the defect, which was not obvious, and his employer might
have discovered the same by a reasonable inspection of the pole. 5
Where an employer had, by means of the cut-off switch .on a street-
lamp, the use of which his servant knew, guarded him absolutely
against danger from wires coming in contact with those of other com-
panies, — it was held that he was not liable for an injury to the servant
from such cause, it being the servant's duty to use the switch and cut
off all current from the lamp before attempting to trim it. 6

•Citizens' Light Ac. Go. v. Le- 70 N. H. 308; s. c. 48 Atl. Rep. 286.

pitre, 29 Can. Sup. Ct. 1 (failure to In another case it appeared that

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 40 of 165)