Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

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§§ 4106-4107.
Art. IV. Duty to Warn and Instruct in Eailway Service, §§ 4109-

4112.
Art. V. Duty to Warn and Instruct in Other Lines than Railway

Service, §§ 4114-4126.
Art. VI. Various Illustrations of the Duty to Warn and Instruct,

§§ 4129-4133.

Article .1. General Nature of this Duty.



Section

4055. General nature of this duty.

4056. This duty absolute in the

sense that it cannot be dele-
gated^

4057. Fellow servant, selected to

perform this duty, becomes
a vice-principal.

4058. Servant having power to em-

ploy and discharge bound
to perform this duty.

4059. Duty to warn servant with

respect to • latent dangers
known to the master but
not obvious or not known
to the servant

4060. Cases where the duty to warn

and Instruct does not arise.

4061. No such duty in respect of

dangers obvious to the
comprehension of the serv-
ant

4062. No duty to warn or instruct

servants who know and ap-
preciate the danger.

278



Section

4063. No duty to warn or Instruct

servants who have had am-
ple opportunity to become
acquainted with the dan-
ger.

4064. Extent of obligation to in-

struct competent and intel-
ligent servants.

4065. Ordering servant into danger

without warning or in-
struction.

4066. Making changes imposing in-

creased danger upon serv-
ants without suitable warn-
ing or instruction.
,4067. Distinction between duty to
give warning and instruc-
tion as to the dangers of a
service, and to give signals
of particular dangers aris-
ing in the progress of the
work.
4068. No duty to give warning of
dangers arising in the prog-
ress of the work.



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DUTY TO WARN AND INSTRUCT HIS SERVANTS. [2d Ed.



Section

4069. Master bound to warn servant

concerning perils arising
from the doing of other
work pertaining to the mas-
ter's business.

4070. Failing to instruct as to the

conduct to be pursued in
unexpected emergencies.

4071. Master not exonerated from

the duty to warn and in-
struct by the fact that the
machine or appliance which
furnishes the source of
danger is in perfect order.

4072. Master, instead of warning

servant, lulling him into a
sense of security.

4073. Giving erroneous instructions.

4074. No duty to instruct adult

servant as to use of simple
tools, devices and appli-
ances.
4076. Duty to warn and instruct
with respect to dangers at-
tending changes in appli-
ances and devices.

4076. Master not necessarily negli-

gent in failing to warn
servant of each particular
defect or danger.

4077. Master not bound to antici-

pate or warn against rash



Section

conduct on the part of the
servant himself, or remote
or improbable dangers.

4078. Duty to warn and instruct

concerning defects due to
negligence of coemployes.

4079. What presumption master

may indulge as to the
knowledge, discretion, and
experience of the servant
and his consequent need of
instruction.

4080. Effect of unfulfilled promise

of master to Instruct his
servant.

4081. Liability of master for inju-

ries to a third person by
- his uninstructed servant.

4082. Failure to warn and Instruct

must have been the proxi-
mate cause of the injury.

4083. A point of pleading in an ac-

tion grounded on failure to
warn and instruct.

4084. Points of evidence in actions

grounded on failure to
warn and instruct.

4805. Duty to warn and instruct,
when a question for a jury.

4086. Instructions to juries with re-
spect to the duty to warn
and instruct.



§ 4055. General Nature of this Duty. — Generally speaking, an em-
ployer is bound to warn and instruct his employes concerning dan-
gers known to him, or which he should know in the exercise of rea-
sonable care for their safety, and which are unknown to them, or are
not discoverable by them in the exercise of such ordinary and rea-
sonable care as, in their situation, they may be expected and re-
quired to take for their own safety; or concerning such dangers as
are not properly appreciated by them, by reason of their lack of ex-
perience, their youth, or their general incompetency or ignorance;
and unless the servant is so warned or instructed he does not assume
the risk of such dangers; but if he receives an injury without fault
on his part in consequence of not having received a suitable warning
or instruction, the master is bound to indemnify him therefor. 1 Stat-



l Port Smith Oil Co. v. Stover, 58 Ark. 168; s. c.



24 S. W. Rep. 106;
279



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

ing the doctrine negatively, it has been said that a manufacturer who
employs the usual means for the preservation of the life and safety



Elledge v. National City Ac. R. Co.,
100 Cal 282; s. c. 34 Pac. Rep. 720,
852; Verdelli v. Gray's Harbor Com-
mercial Co., 115 Cal. 517; s. c. 47
Pac. Rep. 364, 778 (servant had
planed light stuff in a> planer, but
did not know danger of planing
heavy material, and was not in-
structed or warned; Carter v. Cot-
• ter, 88. Oa. 286; s. c. 14 S. E. Rep.
476; Consolidated Coal Co. v.
Haenne, 146 111. 614; s. c. 35 N. E.
Rep. 162; aff'g s. c. 48 111. App. 116;
Consolidated Coal Co. v. Wombach-
er, 31 111. App. 288; Stearns v.
Reidy, 33 111. App. 246; s. c. aff'd,
135 111. 119; 25 N. E. Rep. 762;
Chicago Anderson Pressed Brick
Co. v. Sobkowiak, 34 111. App. 312;
Salem Stone Ac. Co. v. Griffin, 139
Ind. 141; s. c. 38 N. E. Rep. 411;
Muncie Pulp Co. v. Jones, 11 Ind.
App. 110; s. c. 38 N. E. Rep. 547;
Grannis v. Chicago ftc. R. Co., 81
Iowa 444; s. c. 46 N. W. Rep. 1067;
Myhan v. Louisiana Electric Light
Co., 41 La. An. 964; s. c. 6 South.
Rep. 779; 7 L. R. A. 172; Stucke ▼.
Orleans R. Co., 60 La. An. 172; s. c.
23 South. Rep. 342 (citing Nason v.
West, 78 Me. 253) (plaintiff, a
street-car conductor, was put to
work under a car on the repair-
track without warning him of the
danger of another car entering on
the track should a switch leading
to it be negligently left open; mas-
ter is presumed td know the dan-
gers incident to the employment in
which his servants are engaged, and
is bound to warn them of hazards
not within their knowledge or will-
ingly assumed); Gilbert v. Guild,
144 Mass. 601; s. c 4 N. Eng. Rep.
648; 12 N. E. Rep. 368; Rice v. King
Philip Mills, 144 Mass. 229; B. c. 4
N. Eng. Rep. 59; 11 N. E. Rep. 101;
Smith v. Peninsula Car Works, 60
Mich. 601; s. c. 27 N. W. Rep. 662;
1 Am. St. Rep. 542; McDonald v.
Chicago Ac R. Co., 41 Minn. 439;
s. c. 43 N. W. Rep. 380; Guirney v.
St. Paul Ac. R. Co., 43 Minn. 496;
s. c. 46 N. W. Rep. 78 (plaintiff, a
foreman of railway repairs and con-
struction for defendant, was ordered
to repair tracks at a point where an-
other railway company had cut

280



them to make a crossing, and was
ordered to resist any further at-
tempt on the part of such com-
pany, and was arrested for con-
tempt in violating 1 an injunction
order, of which he was ignorant,
prohibiting the defendant company
from interfering in any way with
such other company in connection
with such crossing-border of Judg-
ment on the pleadings for defendant
reversed, and case remanded for
trial) ; Gray v Commutator Co., 85
Minn. 463; s. c. 89 N. W. Rep. 322
(plaintiff was operating a machine
for shaping and pressing the seg-
ments of commutators, called a
drawing-machine; by an irregular
movement of the machine of which
he had not been warned, his hand
was caught and crushed) ; Hysell v.
Swift ft Co., 78 Mo. App. 39; s. c. 2
Mo. App. Repr. 124 (but danger
from bacteria in dried and decayed
blood and rust which plaintiff was
cleaning from iron rail held to be
too remote a danger, to require
warning being given) ; Spaulding v.
O'Brien, 26 Misc. (N. Y.) 184; s. c.
56 N. Y. Supp. 1096 (boxes in wheel-
hub were loose, allowing considera-
ble play to wheel, and part of
wagon was so close to spokes that
it touched them when the wheel
was turned, by reason of which
plaintiff's hand was caught be-
tween spokes and wagon and in-
jured); Turner v. Goldsboro Lum-
ber Co., 119 N. C. 387; s. c. 2 Chic.
L. J. Wkly. 32; 26 S. E. Rep. 23 (in-
experienced workman ordered to
work at planing-machine while hood
in front of knives was temporarily
out of place so knives could be ad-
justed, without warning him of dan-
ger of having his foot caught) ; Roth
v. Northern Pac. Lumbering Co., 18
Or. 205; s. c. 22 Pac. Rep. 842; Leb-
bering v. Struthers, 157 Pa. St 312;
a c. 33 W. N. C. (Pa.) 99> 27 AtL
Rep. 720; Bannon v. Lutz. 158 Pa.
St 166; s. c. 27 Atl. Rep. 890 (fail-
ure to provide appliances in com-
mon use and necessary to render
the opening of stills in an oil re-
finery reasonably safe; employs
burned to death in consequence; re-
covery allowed); Maguire v. Little



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DUTY TO WARN AND INSTRUCT HIS SERVANTS. [2d Ell.

of his employes, and has his machinery set up in the usual way, is
not liable for an accident to an adult employ6, who was fully in-
structed as to the manner of using it. 2 Moreover, to authorize re-
covery by an uninstructed, inexperienced employ^ set tp work at a
dangerous machine whose danger he does not comprehend and who
uses ordinary care, the injury must be directly caused by the dan-
gerous character of the machine or employment, and it must appear
that the danger was not such as he ought to have comprehended. *
Stating the duty in still another way, it is said to be the duty of an
employer who undertakes personally to supervise work with or upon
machinery or appliances used by him which are to outward appear-
ances safe, to use ordinary care and prudence in ascertaining latent
defects therein, and to inform an employ^ of any defects discovered,
and of the probable consequent risk, before he has obeyed an order
to use the appliances. 4

§ 4066. This Duty Absolute in the Sense that it Cannot be Dele-
gated. — This duty, like many others considered in this Title, is an
absolute duty, in the sense that the master is bound to see that it is
performed, and cannot exonerate himself by appointing some one else
to see that it is performed; but if such appointee does not perform
it, the master is liable for his negligence under the rule of respondeat
superior. 5



(R. I.), 13 Atl. Rep. 108; s. c. 5 N.
Eng. Rep. 666 (no off. rep.); Mis-
souri Pac. R. Co. v. King, 2 Tex. Civ.
App. 122; s. c. 20 S. W. Rep. 1014;
Missouri Pac. R. Co. V. Sasse (Tex.
Civ. App.), 22 S. W. Rep. 187 (no
off. rep.); Galveston Ac. R. Co. v.
Garrett, 73 Tex. 262; s. c. 13 S. W.
Rep. 62; Reynolds v. Boston ftc. R.
Co., 64 Vt 66; s. c. 24 Atl. Rep.
134; Hoffman v. Dickinson, 31 W.
Va. 142; 8. c. 6 S. B. Rep. 53; Na-
dau v. White River Lumber Co., 76
Wis, 120; s. c. 43 N..W. Rep. 1135;
Wolski v. Knapp-Stout ftc. Co., 90
Wis. 178; s. c. 63 N. W. Rep. 87
(danger of being jerked over a roll-
ins log and crushed by it upon at-
tempting to change the direction in
which it is rolling down a hill);
Rillston v. Mather, 44 ' Fed. Rep.
743; Gowen v. Bush, 76 Fed. Rep.
349; 8. c. 40 U. S. App. 349; 22 C.
C. A. 196 (failure to warn miner of
gas in mine). Duty of master to
instruct and warn servant as to
perils of employment, — see the long



note to James v. Rapides Lumber
Co., in 44 L. R. A. 33.

'Schultz v. Bear Creek Refining
Co., 180 Pa. St. 272; s. e. 36 Atl.
Rep. 739 (plaintiff, operating a bar-
rel-machine, properly fastened to
floor, pressed friction pulley against
belt pulley so hard that belt slipped
off shaft pulley, caught on set-
screws, pulled machine from its
fastenings and tipped it over on
plaintiff — considered an accident).

•Craven v. Smith, 89 Wis. 119;
s. c. 61 N. W. Rep. 317.

4 Southwestern Tel. Ac. Co. v.
Woughter, 56 Ark. 206; s. c. 19 S.
W. Rep. 676.

Mngerman v. Moore, 90 Cal. 410;
8. c. 25 Am. St. Rep. 138; 27 Pac.
Rep. 306; Norton v. Volzke, 158 111.
402; a. c. 41 N. B. Rep. 1085; aff'g
s. c. 54 111. App. 545 (is answerable
for the negligence of any person
to whom he delegates the duty, in
performing it) ; Stewart v. Pat-
rick, 5 Ind. App. 50; s. c. 30 N. E.
Rep. 814; Wheeler v. Wason Man.

281



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

§ 4057. Fellow Servant, Selected to Perform this Duty, Becomes
a Vice-Principal. — If the master delegates this duty to a fellow serv-
ant, the latter becomes his vice-principal, and he is responsible to the
servant needing the instruction for the failure of the fellow servant
to give it. 6 Thus, if a master selects a fellow servant to instruct and
qualify a servant for a new and more dangerous service, he is liable
for the negligence of such fellow servant in performing the duty.
In such case the master is bound to provide, for a reasonable length
of time, an instructor competent to teach the art of managing the
dangerous machinery and appliances, regardless of his own com-
petency. 7

§ 4058. Servant having Power to Employ and Discharge Bound
to Perform this Duty. — As to the servant upon whom this duty is
devolved by the master, — if that is at all important, — it has been
held that one who has power to hire and discharge laborers and is the
foreman in his department has the duty of the master devolved upon
him to instruct employes as to the danger of the employment. 8

§ 4059. Duty to Warn Servant with Bespect to Latent Dangers
Known to the Master hut Not Obvious or Hot Known to the Servant

— It is the duty of an employer to warn his servant with respect to
latent dangeTs known to the employer or discoverable by him in the
exercise of reasonable care, but not known to the servant or not ob-
vious to him in the exercise of reasonable care for his own safety.



Co., 135 Mass. 294; Felice v. New
York &c. R. Co., 14 App. Div. (N.
Y.) 345; s. c. 43 N. Y. Supp. 922
(duty to warn workmen in tunnel
of approach of trains) ; Mercantile
Trust Co. v. Pittsburgh Ac. R. Co.,
115 Fed. Rep. 475 (delegation of
such duty to any other servant,
whether higher or lower in the
scale of employment than the one
exposed to the peril, cannot relieve
master of the responsibility im-
posed on him by the law).

6 Pullman's Palace Car Co. v.
Laack, 143 111. 242; s. c. 32 N. E.
Rep. 285; IS L. R. A. 215.

T Brennan v. Gordon, 118 N. Y.
489; s. c. 29 N. Y. St. Rep. 829; 8
L. R. A. 818; 23 N. E. Rep. 810.

•Fort Smith Oil Co. v. Slover, 58
Ark. 168; s. c. 24 S. W. Rep. 106.

•Williams v. Walton Ac. Co., 9
Houst. (Del.) 322; s. c. 32 Atl. Rep.
726 (plaintiff was overcome by
fumes while cleaning a chamber

282



used in the manufacture of sul-
phuric acid); Hysell v. Swift ft
Co., 78 Mo. App. 39; s. c. 2 Mo. App.
Repr. 124 (but danger of injury to
employes eye from bacteria arising
from decayed animal matter in
packing-house, was not such a dan-
ger as employer should have known
in the exercise of reasonable dili-
gence); Fowler v. Buffalo Furnace
Co., 41 App. Div. (N. Y.) 84; s. c.
58 N. Y. Supp. 223; appeal dis-
missed, 160 N. Y. 665; National Mal-
leable Castings Co. v. Luscombe, 9
Ohio C. C. 680; Toomey v. Avery
Stamping Co., 20 Ohio C. C. 183;
s. c. 11 Ohio C. D. 216; McCray v.
Sterling Varnish Co., 7 Pa. Super.
Ct. 610 (plaintiff's health damaged
by exposure to certain fumes in a
varnish factory, which the super-
intendent told him would not hurt
him, while making repairs on cer-
tain machinery) ; Bannon v. Lutz,
168 Pa. St. 166; s. ' c. 27 Atl.



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DUTY TO WARN AND INSTRUCT HIS SERVANTS.



[2d Ed.



§4060. Cases where the Duty to Warn and Instruct does Not

Arise. — The rule, of course, has no application where the servant ac-
quires full knowledge of the danger from other sources — as, for ex-
ample, from other employes, or from his own observations — before
the happening of the injury; 10 nor has it any application where a
servant is placed in charge of a machine, or set to work at a busi-
ness, with which he is entirely familiar, and which it is his trade to
operate. 11 There is, for example, no duty on the part of a railroad
company to instruct a skilled and experienced locomotive-engineer
in the dangers of a locomotive which he is required to operate, where
it is of the same general character as those to which he has been ac-
customed ; 12 nor has the rule any application to a case where there are



Rep. 890; Hightower y. Bamberg
Cotton Mills, 48 S. C. 190; 8. c.
26 S. E. Rep. 222 (plaintiff at-
tempted to clean inside of machine,
not knowing that inside machinery
revolved two or three minutes by
its own momentum, after all the
other machinery had stopped) ; An-
derson v. Daly Min. Co., 15 Utah 22;
8. c. 49 Pac. Rep. 126 (failure to
warn inexperienced drill-operator in
mine of necessity of examining rock
and ground for missed holes, before
starting the drills, where no report
was made by another shift of
missed holes); Shoemaker v.
.Bryant Lumber Ac. Co., 27 Wash.
637; s. c. 68 Pac. Rep. 380; Green-
berg v. Whitcomb Lumber Co., 90
Wis. 225; s. c. 28 L. R. A. 439; 63
N. W. Rep. 93 (Insecurely fastened
saw became separated • from shaft
and struck plaintiff) ; McDougall v.
Ashland Sulphite-Fibre Co., 97 Wis.
382; s. c. 73 N. W. Rep. 327 (fail-
ure to warn inexperienced laborer
of danger of shifting belt with a
stick). It has been held that a mas-
ter who fails to inform a servant
employed to unfasten the latch
holding the lever of a dump-car,
whereby its contents of molten slag
are dumped, that the appliance has
not at all times worked properly,
but that the car has several times
dumped prematurely by reason of
the latch becoming unfastened, is
liable for injuries sustained by the
servant while in the exercise of due
care, and because of such latent de-
fect: • Fowler v. Buffalo Furnace
Co., 41 App. Div. (N. Y.) 84; s. c.
58 N, T. Supp. 223; appeal dis-
missed, 160 N. Y. 665. In an action



against a railroad company to re-
cover for the death of the plain-
tiff's husband, caused by his being
swept off the defendant's tracks by
a landslide, the evidence disclosed
that he was one of defendant's sec-
tion-men; and with another he had
been sent to look out for dangerous
places on the track, liable to have
been caused by heavy rains which
had fallen; and the landslide which
swept him into the river occurred
while he was working under the di-
rection of the conductor of a de-
layed train, and, pursuant to a rule
of the company requiring him to
act under such conductor's direction,
was removing a previous slide from
the track. The plaintiff claimed
that there was a hidden danger
in the bank. It was held that it was
no part of the conductor's business
to warn the deceased of the hidden
danger, merely because a rule of
the company provided that section-
men should, in case of accident or
delay to a train, obey the orders of
the conductor, especially where it
was no part of the conductor's duty
to know about the condition of the
bluff, but the care thereof was in
part entrusted to the decedent:
Slavens v. Northern Pac. R. Co., 97
Fed. Rep. 255; s. c. 38 C. C. A. 151.

"Truntle v. North-Star Woolen-
Mills Co., 57 Minn. 52; s. c. 58 N.
W. Rep. 832; Rooney v. Sewall Ac.
Co., 161 Mass. 153; s. c. 36 N. E.
Rep. 789.

u Benfleld v. Vacuum Oil Co., 75
Hun (N. Y.) 209; s. c. 27 N. Y.
Supp. 16; 58 N. Y. St. Rep. 663.

"It was accordingly held that a
railroad company does not owe any

283



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4 Thomp. Xeg.] duties axd liabilities op the master.

no appearances indicating the presence of any danger requiring
special warning or instruction, — in which case the failure to give
instructions cannot he ascribed to the want of ordinary or reasonable
care; 18 nor has it any application where the failure to instruct the
servant is not the proximate cause of his injury, — as where he pro-
cures employment in the service by falsely representing that he is
experienced in such service, and is injured through the negligence of
a fellow servant. 1 * It has been said that the employer is under no
duty to give the employ6 notice of the "ordinary dangers pertaining
to the particular service/' for the reason that all persons engaged in
it are presumed to know such dangers. 16 This is not a correct state-
ment of the rule. The rule is, as already stated, that the servant ac-
cepts the risks of known and obvious dangers, and not those which are
unknown and latent, though known to the master. There is no pre-
sumption that one entering a given service is aware of all the dan-
gers attending it; but if, by reason of his experience, he is fully
aware of such dangers, then the fact of his having such experience
and knowledge must be proved as any other fact, and is not pre-
sumed. There is another holding to the effect that, as a general rule,
it is not the duty of the master to instruct the servant in regard
to the risks, unless information is asked, or unless the servant is
known to be ignorant and inexperienced regarding the dangers pe-
culiar to the service. 16 What is here intended is probably the mere
statement that it is not the duty of the master to tell the servant
what he knoWs already, or what he can see with his own eyes. If the
servant is so experienced in the particular service as to be just as
well apprised of the dangers attending it as the master is, then the
law does not require the master to go through -with the vain perform-
ance of telling him what he already knows. 17 But, as we have already
seen, 18 although he may be familiar with the service, if there are
hidden dangers of which he is not apprised, but of which the master
has knowledge, then it is the obvious duty of the master to warn him

duty to an experienced engineer of their cabs: Bellows v. Pennsyl-

famlliar with its road, of advising vania Ac. Canal Co., 157 Pa. St. 51;

him, in assigning him to the duty s. c. 33 W. N. C. (Pa.) 164; 27 Atl.

of instructing another engineer, Rep. 685.

that the cab of the engine is six u Burns v. Pethcal, 75 Hun (N.

inches wider than that on which Y.) 437; s. c. 57 N. T. St Rep.

he usually runs, so as to make it 661; 27 N. Y. ffupp. 499.

liable for injuries sustained, In M Stanley v. Chicago Ac. R. Co.,

running the engine to relieve his 101 Mich. 202; s. c. 59 N. W. Rep.

pupil, by his head striking against 393.

a bridge because of the swaying mo- " Consolidated Coal Co. v. Schel-

tion at a curve and the nearness of ler, 42 111. App. 619.

the cab to the bridge; since engi- u Missouri Ac. R. Co. v. Watts,

neers are bound to take notice of 63 Tex. 549.

changes in the style, size and finish "Post, § 4061, et aeq.

284



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DUTY TO WARN AND INSTRUCT HIS SERVANTS. [2d Ed.

as to thoBe dangers. If the servant attempts to repair machinery
without orders to do so, where the duty of making such repairs is com-
mitted to another servant, and is injured in. the task, he cannot make
the fact that he has not been warned of the danger attending such an
operation a ground of recovering damages against his master. 10 It
need not be said that the mere fact that his work was dangerous does
not entitle an employ^ to recover for injuries from the negligence of
coemployes, or from his own lack of ordinary care, though he has not
been warned and is ignorant of the dangers of the work. 20

§ 4061. No such Duty in Bespect of Bangers Obvious to the Com-
prehension of the Servant. — The master owes no such legal duty to
the servant in respect to dangers which are open, visible, and obvious
to the comprehension of the servant, considering his years, experi-
ence, and understanding. 21 In the case of an adult servant of sound



"Ante, § 4059.

"McCue v. National Starch Man.
Co., 142 N. Y. 106; s. c. 58 N. T.
St Rep. 447; 36 N. E. Rep. 809. To
the effect that a servant can not re-
cover damages for an injury from a
danger which is obvious and which
is outside the duties which the mas-
ter requires him to perform, the
court cite Crown v. Orr, 140 N. Y.
450; Cahill v. Hilton, 106 N. Y. 512.
Case where a carpenter was injured
by the starting of machinery with-
out warning, and the majority of
the court held that the injury was
to be ascribed to the negligence of
a fellow servant: Porter v. Silver
Creek Ac. Coal Co., 84 Wis. 418; s.
c. 54 N. W. Rep. 1019. It has been
held that an employe cannot re-
cover for an injury caused by the
explosion of potassium and sodium
placed by him in water at the di-
rection of the employer, without'
any information of their explosive
character by the latter, although
the employe had no actual knowl-



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 43 of 165)