Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

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wrap with Insulating material the the plaintiff was employed as an

tie-wires hy which live wires were electric lineman, and had never

attached to porcelain knobs). been furnished with any tools for

4 Desjardins v. Citizens Light Ac. the purpose of Inspecting poles, nor

Co., Rap. Jud. Que. 16 C. S. 28 (in was he required to do so by his

French). contract of employment. There was

•San Antonio Edison Co. v. Dix- some evidence that the linemen

on, 17 Tex. Civ. App. 320; s. c. 42 were in the habit of testing the

S. W. Rep. 1009; distinguishing poles for themselves by kicking or

Dixon v. Western Union Tel. Co., 68 shaking them, but not by digging

Fed. Rep. 630; s. c. 71 Fed. Rep. 143 to see whether they were sound

(where an employ^ engaged in underground. Though the plaintiff

erecting a telegraph-pole climbed kicked the pole before going up, to

a telephone-pole belonging to an- see whether it was sound, it was

other company, in order to remove shown that he was under no duty

some wires which obstructed the of inspection, whereas the master

erection of the telegraph-pole). was shown to have failed in such

•Carr v. Manchester Electric Co., duty. Upon his cutting the wires



261

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

§ 4037. Further of Injuries from Defective Electrical Appliances.

—Where a lineman was putting up a telegraph-wire, when both tha
wire and the cross-arm broke, and the lineman was thrown to the
ground and killed, and there was no positive evidence that the ma-
terials were carefully selected by the company, and the evidence as
to their actual soundness was conflicting, it was held that their break-
ing was evidence of negligence, and a judgment against the company
was sustained. 7 On the other hand, it was held that an electric-light
company was not liable to a lineman for injuries sustained by him
from a fall from one of its poles, caused by the giving way of a hood
and frame which he was removing under the direction of a foreman,
where the company furnished competent co-servants and proper ap-
pliances with which to take down the frame with perfect safety. 8

§ 4038. Servant Injured through Defects in Electrical Appliances
Not Obviously Dangerous. — Patent defects in the appliances given the
servant with which to work, not obviously dangerous, are placed by
just views of the law among the ordinary risks of the service which
he impliedly assumes. Thus, an employ^ of an electric-light com-



the pole broke, injuring him.
It was held that he had a right
to presume that his employer had
discharged his duty, and that the
pole was sound, and that he was
not guilty of contributory negli-
gence in cutting the wires as he
did, but was entitled to recover
damages: Dupree v. Alexander, 29
Tex. Civ. App. 31; s. c. 68 S. W.
Rep. 739. Where an electric com-
pany negligently cut an electric
wire, and, because of the conse-
quent crossing of other electric
wires, a lineman received a shock
resulting in his death, a finding
that the cutting of the wires was
the cause of the lineman's death
was proper, though it operated
through the consequent crossing of
other wires: Broughel v. South-
ern New England Tel. Co., 72 Conn.
617; s. c. 46 Atl. Rep. 435.

T Clairain v. Western Union Tel.
Co., 40 La. An. 178; s. c. 3 South.
Rep. 625.

* Gibbons v. Brush Electric Ilium.
Co., 36 App. Div. 140; s. c. 56 N. Y.
Supp. 378. That a telephone com-
pany owes no duty to a lineman
employed by the city, which has
the right to use the topmost of the
cross-bars on its poles, so to main-
tain the cross-bars used by the com-

262



pany that they will sustain his
weight, — see New York &c. Teleph.
Co. v. Speicher, 69 N. J. L. 23. The
fact that a lineman knew that a
pole which he was about to use
did not belong to the telephone
company by which he was employed
did not relieve the company from
liability for defects in such pole,
where the lineman was not charge-
able with notice of an arrange-
ment by which his employer did not
have the right to inspect or repair
the poles: McQuire v. Bell Teleph.
Co., 167 N. Y. 208; s. c. 60 N. E.
Rep. 433; 52 L. R. A. 437; affg s. c.
66 N. Y. St. Rep. 1137. A workman
who went on the roof of a house
to assist in repairing a skylight, and
was killed while there by contact
with a wire which an electric com-
pany had imperfectly Insulated, was
in the discharge of his duty while
standing or moving in a space
where he could readily answer the
calls of his foreman, or render the
assistance required by him, al-
though he had taken two or three
steps away: Oremnis v. Louisville
Electric Light Co., 20 Ky. L. Rep.
1293; s. c. 49 S. W. Rep. 184 (no
off. rep.) (judgment for defendant
set aside — case should have gone to
Jury).



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DUTY TO PROVIDE SAFE MACHINERY, TOOLS AND APPLIANCES. [2d Ed.

pany, of mature age and ordinary mental capacity, who is injured by
reason of a defective ladder, one rail of which is broken off near the
top, both master and servant knowing of the defect, and neither re-
garding it as dangerous, cannot recover damages therefor from the
company. In an action for damages for the death of the plaintiff's
intestate, a lineman in the employ of the defendant telegraph com-
pany, it appeared that the deceased was seated upon the outer end of a
cross-arm at work when it broke under his weight and he fell to the
ground and was killed. The arm had been in use about six years.
It was of the material, size and apparent strength and safety then in
use by all telegraph companies. The court held that the defendant
was bound to use ordinary and reasonable care to provide the deceased
with a safe place to work, and that he assumed the ordinary risks of
the employment; that there was no defect in the cross-arm discern-
ible from an ordinary inspection; that it had been so inspected; and
that the accident was one of the risks of the employment and the plain-
tiff could not recover. 10 In a similar action it was held that the duty
of inspecting and testing telegraph-poles might be imposed by the
company upon its linemen, and that a lineman with knowledge of this
requirement, who neglects his duty in this particular, and as a
result is injured, cannot recover damages of the company, on the
theory that the master must furnish a safe place for the servant to
work; and it is a question for the jury whether in a given case
the duty of inspection rests upon the lineman. 11 In another case the
plaintiff, a lineman in the employ of defendant telegraph company,
was engaged in stringing wires on its poles. In the course of his
work he was ordered to climb a pole of another company in order to
remove certain wires which were in the way. In descending from this
pole, owing to its defective condition he was precipitated to the
ground and injured. It was held that he could not recover damages
of the defendant, as the cause of the accident was one of the risks of
the employment which was assumed by the plaintiff. 12

§ 4039. 'Breaking of Elevator of Electric-Light Tower. — If an em-
ploy6 of sueh company is injured in consequence of an elevator of an
electric-light tower breaking while he is ascending it to trim the
lamps, it will not be a good defense that his lamps were already
trimmed, and that he was consequently not in the performance of his

• Jenney Electric Ac. Co. v. Mur- n McGorty v. Southern Ac. Teleph.

phy, 115 Ind.566; s. c. 18 N. B. Co., 69 Conn. 636; s. c. 38 Atl. Rep.

Rep. 30. 359.

,0 Flood v. Western Union Tel. "Dixon v. Western Union TeL

Co., 131 N. T. 603; s. c. 30 N. B. Co., 68 Fed. Rep. 630.
Rep. 196.



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

duty. If he was proceeding in good faith and without negligence in
the discharge of the duty which he owed to his master, the latter will
be none the less liable from the mere fact that the servant may have
been mistaken as to the necessity of performing the particular duty
on the particular occasion. 1 *



Article V. Applications of the Doctrine to Various Kinds
of Machinery, Appliances, etc.

Section Section

4041. Animals, vicious. 4045. Sawmills, pulp-mills, saws,

4042. Belts. etc.

4043. Drawbridges. 4046. Teams, wagons, vehicles,

4044. Ladle to hold molten metal, drawn by animals.

negligence in repairing.

§ 4041. Animals, Vicious. 1 — There is a doctrine inherited from the
ancient common law and entirely at variance with modern analogies,
which exonerates the owner of a vicious animal from liability to pay
damages to a third person injured in consequence of its viciousncss,
unless the owner knew that it was vicious, 2 — ignoring the obvious
conception that it is the duty of the owner of every species of prop-
erty to know whether it is likely to be hurtful to others. The doc-
trine of the ancient law is not applied in the relation of master and
servant; but if a master furnishes, for the use of his servant, a horse
or other animal of such a vicious nature that the servant is liable to
be injured in consequence of its viciousness, the master will be liable
if he knew, or by the exercise of reasonable care could have known,
of the vicious propensities of the animal, 8 unless the servant knows
that the animal is dangerous, but nevertheless continues to use it,
in which case he assumes the risk of injury from it. 4 A vicious ani-
mal furnished to a servant by the master stands on the same footing
as a dangerous machine, tool or appliance : it is "defective" in a simi-
lar sense. This rule has been justly applied in a case where a street-
railway company used, in propelling its cars, a broncho wfiich would
kick when struck by its drivers, in consequence of which kicking habit
its driver was injured ; 5 where a railway laborer was ordered to assist

"Weiden v. Brush Electric Light 24 Ky. L. Rep. 420; s. c. 68 S. W.

Co., 73 Mich. 268; s. c. 41 N. W. Rep. 624 (no off. rep.).

Rep. 269. s Leigh v. Omaha St R. Co., 36

'See post, § 4117. Neb. 131; s. c. 54 N. W. Rep. 134.

* Vol. I, i 839. Circumstances under which a coal

"George H. Hammond Co. v. company using a mule was not lia-

Johnson, 38 Neb. 244; s. c. 56 N. ble to Its driver for an Injury re-

W. Rep. 967. ceived by the animal, it not ap-

4 East Jellico Coal Co. v. Stewart, pearing that it was vicious: Pitts-

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DUTY TO PROVIDE 8AFE MACHINERY., TOOLS AND APPLIANCES. [2d Ed.

a foreman in putting a vicious steer in a pen, and the foreman failed
to warn the laborer that the steer was mad and dangerous, in conse-
quence of which the laborer was injured by the steer. 6

§ 4042. Belts.— Negligence may be imputed to an employer for the
act of placing a pulley made of rags, the ends of which are left loose,
on a shaft easily accessible, where the belt used on it is in poor con-
dition and requires frequent repair and readjustment, so that some
one is brought in close proximity to the pulley. 7 An employer is not
liable for the death of an employe while attempting to rescue another
employe^ who was assisting him, from a dangerous position in which
he had been placed because of a defective belt, where the injury would
not have happened but for the negligence of such employes in at-
tempting to place the belt on a pulley without instructions and with-
out its being in the line of their duty. 8



ton Coal Co. v. McNulty, 120 Pa.
St 414; s. c. 12 Cent. Rep. 722; 14
Atl. Rep. 387; 21 W. N. C. (Pa.)
472.

• International Ac. R. Co. v. Smith
(Tex. Civ. App.), 30 8. W. Rep. 501
(no off. rep.).

'Dodd v. Bell, 15 App. Div. (N.
Y.) 268; s. c. 44 N. Y. Supp. 198
(plaintiff, fifteen years of age, was
holding belt over shaft while re-
pairer fixed it, and was caught by
loose ends hanging from pulley).

"Deceased and another servant,
after completing repairs on a wash-
ing-machine, attempted to put on
the belt, with the assistance of an-
other servant who was standing
near by, who was caught in the
belt; deceased pulled the other em-
ploye 1 out of the loop of the belt
and was himself caught and killed:
Sann v. H. W. Johns Man. Co., 16
App. Div. (N. Y.) 252; s. c. 44 N.
Y. Supp. 641. Where a belt used to
run a stamp-hammer was allowed
to drag the floor for three months
in summer, when the hammer was
not in use, so that it became worn
and defective, whereby plaintiff was
injured in attempting, under or-
ders, to put the belt on a rapidly-
revolving pulley, it was held that
a finding that the owner of the
factory was negligent would not be
disturbed on appeal as contrary to
the evidence: Toomey v. Avery
Stamping Co., 20 Ohio C. C. 183; s.
c. 11 Ohio C. D. 216. Plaintiff, who
had worked around machinery for



four years, and had arrived at
years of discretion (twenty years),
was employed by defendant, among
his duties being that of applying
a certain compound to a certain re-
volving pulley whenever the belt
slipped. He had had no experience
with belts or with pulleys run with
belts, and so informed the defend-
ant's superintendent, who showed
him how to apply the compound,
which was done by holding it
against the pulley midway be-
tween the belts. This he did four
or Ave times a day, until the block
of compound became very thin,
whereupon he asked for anothfer,
"so as not to run out of it," and
was told to use what he had. Later
the superintendent told the plain-
tiff that he would tighten the belt,
as the plaintiff had advised him to
do, so as to prevent its slipping;
but, while he did not do so, it did
not appear that such tightening
would have obviated applying the
compound. Shortly after, the thin
block of compound broke while the
plaintiff was applying it, and he
was caught on the belt-pulley and
injured. The evidence was held in-
sufficient to sustain a verdict for
damages for negligently causing
the injury: Cantwell v. Brennan,
125 Mich. 349; s. c. 84 N. W. Rep.
299; 7 Det. Leg. N. 543. It has
been held that a verdict in favor of
a workman whose hand was caught
in a running belt on which he was
applying pressure with an iron rod

265



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

§4043. Drawbridges. — The plaintiff, while employed by the de-
fendant as tender of a drawbridge, was injured by the breaking of a
wrench used to turn the draw. There was evidence that it was of
insufficient strength on account of the material of which it was made
and its improperly fitting the head of the shaft. It was held that a
verdict that the defendant had negligently furnished a defective ap-
pliance was justified.*

§ 4044. Ladle to Hold Molten, Metal, Negligence in Bepairing.-r-

A manufacturing company was held liable to an employ^ for an in-
jury caused by negligence in the work of restoring to a condition of
safety the apparatus employed to keep from tipping a ladle in which
molten iron was conveyed from one place to another. 10

§ 4046. Sawmills, Pulp-Mills, Saws, etc. — A jack used in drawing
logs up to the carriage on which they were sawed was devised so as
to stop when the lever was released. On a particular occasion it
failed to stop, thereby causing an accident to the employ^ whose busi-
ness it was to release the lever. It had worked perfectly for sixty
days before the accident, and immediately afterward, and no proof
was offered tending to show that it was out of repair. It was held
that the failure of the jack to stop when the lever was released on the
particular occasion did not raise presumptive evidence of negligence
of the company to the jury. 11 The operator of a pulp-mill was held
not negligent as matter of law in requiring an employe to use a
mended circular saw, where it had been worked for a month, and was
not shown to be weaker at the mended point than at any other, or to
have broken at that point, or in consequence of the crack in its
mended condition, where the evidence tended to show that saws fre-
quently broke even though perfectly sound. 1 * A jury may find that

in order to tighten it, is not justified, v. Romona Oolitic Stone Co., 19 Ind.
on the theory that the belt was App. 341 ; 8. c. 49 N. E. Rep. 467.
loose and he was required to ex- 'Galveston Ac. R. Co. v. New-
pose himself to danger, where his port, 26 Tec. Civ. App. 583; s. c. 65
act was not necessary to the opera- S. W. Rep. 657.
tion of the machine, and the proxi- " Scherer v. Holly Man. Co., 86
mate cause of the injury was the Hun (N. T.) 37; s. c 66 N. T. St.
striking of the rod from his hand Rep. 833; 33 N. T. Supp. 205 (work-
by something on the surface of the men who repaired safety-catch on
belt, and not its looseness. The ladle did work in negligent man-
belt was running on a loose pulley ner; catch failed to hold, allowing
or "idler" at the time, and was not ladle to tip and spill iron on plain-
being used to operate the machine, tiff).

Nor did he need to use the iron "Redmond v. Delta Lumber Co,

rod to shift the belt to the fixed 96 Mich. 545; s. c. 55 N. W. Rep.

pulley, as a suitable and safe belt- 1004.

shifter had been provided: Phillips "Lau v. Fletcher, 104 Mich. 295;

s. c. 62 N. W. Rep. 357.

26S



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DUTY TO PBOVIDE 8AFE MACHINEBY, TOOLS AND APPLIANCES. [2d Ell.

an employer is negligent in furnishing for an employ^ a cross-cut
saw for the purpose of sawing blocks three and one-half inches long,
which is operated by placing the wood on a slide and pushing the
slide towards the saw, holding the wood in place with the hand, where
the 6lide is unsupported for eighteen inches next to the saw, and when
any pressure is placed on that side the slide is lifted from the guide-
rail at the other end, so that the slide will swing around when the
saw strikes the board held by the operator, and the operator's hand is
likely to be injured. 1 * In an action for the death of a servant while
employed in putting lumber in a saw, where the evidence tended to
show that the saw "wobbled/' which caused the injury, and also that
the servant's carelessness was the cause of the accident, the question
as to the cause of the accident was for the jury. 14 A manufacturing



u Stiller v. Bohn Man. Co., 80
Minn. 1; s. c 82 N. W. Rep. 981
(the slide was a light wooden
structure resting on top of and slid-
ing on parallel bevelled rails). Evi-
dence which was held not sufficient
to show that a saw-clearer who was
killed in the defendant's mill met
his death in consequence of the de-
fendant's negligence in failing to
furnish him with a safe place in
which to work, .the nature of his
duty precluding a safer place, or
in setting him to work with an in-
competent fellow servant: Kellogg
v. Stephens Lumber Co., 125 Mich.
222; s. c 84 N. W. Rep. 136; 7 Det
Leg. N. 483. In an action for in-
juries caused by a slat-saw which
defendant worked, where the theory
was that plaintiff's hand passed be-
neath the overhanging steel guard,
and came in contact with the saw,
and it was apparent that the space
was not sufficiently large to allow
plaintiff's hand to pass in the man-
ner claimed, and it was physically
impossible for the accident to hap-
pen in the manner claimed, a ver-
dict for plaintiff was set aside as
not supported by any of the evi-
dence: Beyersdorf v. Cream City
Sash. Ac. Co., 109 Wis. 466; s. c. 84
N. W. Rep. 860. In another case it
appeared that a band-saw in a saw-
mill was supported by an upright,
hollow iron, cylinder, in two sec-
tions; the upper section, called the
"sleeve," covering the upper end of
the lower section, and capable of
being raised by a jack-screw and
levers so as to regulate the tension
of the saw. It was worked in the



opposite direction by means of
weights attached to it, and weighed
with its attachments about three
tons. In the lower end of the
sleeve was a slot, intended merely
for certain levers to pass through,
used in regulating the tension, but
large enough for a man to pass his
arm through. In the base of the
lower section were manholes, for
the purpose of admitting the hand
for whatever was needful to be done
in the way of adjusting the weights
on the weight-rod, etc., within the
cylinder, i which manholes could be
used with perfect safety and were
known to the plaintiff. Other em-
ployes were attempting to raise the
sleeve by means of the jack-screw
and levers. It worked so hard that
they thought the weights were
caught. The plaintiff inserted his
hand through the hole in the sleeve,
found that the weights were free,
and called out that they were not
caught; upon which the men threw
their weight upon the lever, and,
a defective nut giving way, the
sleeve 'fell and cut off the plain-
tiff's hand. It was held that the
master was not, as matter of law,
required to foresee that an employ^
might thrust his arm through such
opening; and a verdict failing to
find that the use of such machine
constituted negligence toward the
plaintiff, or that such negligence
was the cause of the accident, did
not support a judgment for the
plaintiff: Rysdorp v. George Pan-
kratz Lumber Co., 95 Wis. 622; s. c.
70 N. W. Rep. 677.
"McLean v. Paine, 181 Mass. 287;

267



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

company was deemed guilty of actionable negligence in maintaining
a glide for guiding and pushing lumber against a involving saw, the
controlling, grooves, and fastenings of which were so defective as to
cause the slide to leave its proper position, and to throw the operator's
hand against the saw. 18

§ 4046. Teams, Wagons, Vehicles, Drawn by Animals. — A master
who furnishes to his servant, who is not acquainted with the road, a
wagon not furnished with brakes, and has it loaded with lumber of
more than twice the weight of a reasonable load, of which weight the
servant is ignorant, is liable for an injury to the servant caused by his
losing control over the team, on account of the pressure of the heavy
load, without fault on his part, while descending a grade. 16 A serv-
ant employed to transport lumber about a yard upon a two-wheeled
truck drawn by a team of horses, can recover for injuries sustained
from the fall of a load of lumber, caused by a wheel separating from
the axle on account of a defective pin, where he was ignorant of the
defect and without contributory fault, and the defendant had used
the truck in the yard for two years and had made no inspection
thereof. 11



8. c. 63 N. E. Rep. 883. In the same
action it appeared that the saw
might have been sprung, so that it
might have been improperly set on
the arbor, or the arbor improperly
set in the boxes, or the boxes so
worn that the saw would not run
smoothly, which could have been
discovered by proper care. Defend-
ant's servant whose duty it was to
put on the saw, and who did put
it on, testified that he, did not pay
any particular attention to ascer-
tain whether the saw was true and
in perfect running-order. It was
held sufficient to warrant a finding
that defendant did not exercise
proper care: McLean v. . Paine,
supra.

u Central Man. Co. v. Cotton, 108
Tenn. 63; s. c. 65 S. W. Rep. 403.

"Lee v. Smart, 45 Neb. 318; s. c.
63 N. W. Rep. 940 (the plaintiff be-
came alarmed, and jumped from the
wagon, in doing which he was in-
jured).

"Boyce v. Schroeder, 21 Ind.
App. 28; s. c. 1 Repr. (Ind.) 65;
51 N. E. Rep. 376. In another case,
the plaintiff, a laborer, was injured
while engaged with the defendant,
his employer, and a teamster, in

268



loosening skids, embedded In snow
and ice, to be sawed up into logs.
After seven or eight skids had been
removed, the teamster tried a skid
which was held fast, and the plain-
tiff and the teamster commenced
chopping it to loosen it, the plaintiff
working between two skids which
were some seven feet apart, with
his back to the team, so near the
skid that if it should loosen sud-
denly it would very likely do Just
what it did do; whereupon the de-
fendant directed the teamster to
start the team without warning the
plaintiff. The log snapped loose,
and was jerked around, crushing
the plaintiff's leg. It was held suf-
ficient to show actionable negli-
gence: Sweain v. Donahue, 105
Wis. 142; s. c. 81 N. W. Rep. 119.
A laborer shovelling dirt into a
cart stood between the tail of his
cart and a bank which was being
removed. The horse threw his
head around to one side, and a rein
or some part of the bridle caught
on a hook attached to the saddle,
which cramped his head to one side
and caused him to back, crushing
the laborer between the cart and



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 41 of 165)