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Commentaries on the law of negligence in all relations online

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ant, it must be shown, not only that a warning was necessary, but
that such fact was known or should have been known to the master ;
and the master may presume that the servant is acquainted with a dan-
ger which is generally known in the community with respect to electric
wires. 8 It need not be said that here, as in other relations, the failure

^ of a foreman, being the representative of the master, to warn a serv-
ant of a danger which is as well known to the servant as to the fore-
man, does not render the master liable. 9

T The plaintiff, while stringing
some telegraph-wires on a pole car-
rying only such wires, in the ordi-
nary use of which there is not
enough electricity to injure a man,
received a heavy charge of elec-
tricity. It appeared that on cer-
tain poles of the company, near
where the plaintiff was working,
were heavily charged electric light
wires in close proximity to the tele-
graph-wires on the same poles. The
company never warned the plaintiff
of the danger occasioned to him
thereby, and he had worked for the
company but a little over a month.
The evidence was held sufficient to
support a finding that such electric-
light wires were the proximate
cause of the Injury; and that, as
to the plaintiff, the danger was a
latent one, in failing to warn him
of which the company was negli-
gent: Western U. Tel. Co. v. Mc-
Mullen, 58 N. J. L. 155; s. c. 32
L. R. A. 351; 2 Am. & Bng. Corp.
Cas. (N. S.) 588; 33 Atl. Rep. 384.
The plaintiff, an unskilled work-
man, was employed by the defend-
ant electric company to dig post-
holes and assist in the general
street- work. Without any instruc-
tion or warning as to the danger of
handling the wires, the plaintiff,
at the direction of a superior fel-
low servant, climbed a pole, and
began scraping an electric wire,
when he received an electric shock,
which caused him to fall to the
ground, a distance of eighteen feet,
thereby sustaining serious injuries.


It was held that the defendant was
negligent in failing to instruct the
plaintiff of the hidden danger, such
duty being personal to the employer,
and incapable of being delegated
to another servant; and hence the
negligence of the foreman in fail-
ing to instruct the workman was the
negligence of the master, and did
not bar a recovery: Tedford v. Los
Angeles Electric Co., 134 Cal. 76;
s. c. 66 Pas. Rep. 76; 54 L. R. A. 85.

•Owings v. Moneynick Oil Mill.
55 S. C. 483; s. c. 33 S. E. Rep. 511
(plaintiff admitted on the witness-
stand that he was aware of the dan-
ger; hence a nonsuit should have
been granted .

'Junior v Missouri Electric Light
&c. Co., 127 Mo 79; s. c. 29 S. W.
Rep. 988 (experienced employe neg-
lected to use rubber gloves to
handle wires which were obviously
not insulated at their ends). A
servant employed as a helper in the
defendant's machine shop, about
two months prior to his death was
selected to assist in wiring the
building for electric lights, and to
look after and care for such
wires and lights in the absence of
the man regularly employed in such
work; and thereafter, whatever was
to be done in the way of wiring or
looking after the lamps, either of
such persons attended to. The serv-
ant, while assisting in stringing a
wire for connecting an electric bell
from a certain point outside the
shops to the office, came in contact
with a live wire which was open to

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§4119. Dnty to Warn and Instruct Concerning Dangerous Ex-
plosives. — We may extract from one decision the proposition that it i§
the duty of an employer, before using a highly dangerous explosive,
to ascertain and make known to his employes the dangers to be rea-
sonably apprehended from its use, and the proper method of handling
it with reasonable safety ; and his ignorance of knowledge which can
be obtained by the exercise of reasonable diligence is no excuse, — as-
suming, of course, that they do not understand and appreciate the
danger as well as he does. 10 But it has been held that the danger
that cider-bottles would explode while being filled under pressure, is
not one obviously beyond the comprehension of a boy of average in-
telligence, nineteen or twenty years old, who had worked at the busi-
ness for years, and had recently been charged with the control and
supervision of the bottling department of the defendant's establish-
ment. 11

§ 4120. Dnty to Warn of Dangers Arising from Fires. — A gang of
men were ordered by the foreman to assist in putting out a fire which
endangered the master's property, and one of them was killed by the
falling of a burning stump. The foreman had been informed that
the stump had burned at the bottom so that it was likely to fall, but
neglected to warn the men. The deceased had passed the tree a num-
ber of times while it was burning. The stump and vicinity were en-
veloped in smoke and steam, and there was much noise and con-
fusion. It was held that the defendant was under no duty to warn

his observation, and actually seen a lamp, and, while reaching to turn

by him, and of the dangerous char- off the switch, touched the lamp,

acter of which he had been in- which was alive by reason of wires

formed, and was killed. It was of his master coming in contact

held that the decedent, in string- with those of another company. It

ing the wire, was acting within the was held that the master was not

scope of his employment, and that negligent in failing to instruct the

the defendant's duty as to warning plaintiff as to increased danger in

him of the dangers of live wires working on pole-lamps in wet

had been performed: Davis v. weather, it not being shown that

Port Huron Engine Ac. Co., 126 such dampness caused the injury:

Mich, 429; s. c. 85 N. W. Rep. 1125 Carr v. Manchester Electric Co., 70

(he assumed risk of slipping on N. H. 308; s. c. 48 Atl. Rep. 286.

wet roof and coming in contact 10 Bertha Zinc Co. v. Martin, 93

with the wire. while, so engaged). Va. 791; s. c. 22 S. E. Rep. 869; 2

A lamp-trimmer of an electric- Va. L. Reg. 838 (question for jury

lighting company had been em- whether master was negligent in

ployed at such work for a con- thawing dynamite before open fire

siderable time, and was fully in- hi open air, instead of using appli-

structed as to his duties, and ances for that purpose which were

told that the first thing to do shown to be in existence).

was to turn a switch at the top u Omaha Bottling Co. v. Theiler,

of the lamp, to cut the lamp 59 Neb. 257; s. c. 80 N. W. Rep.

out of the circuit. On a rainy 821.
morning he climbed a pole to trim


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

the deceased of the danger, which was equally obvious to all ; and the
negligence, if any, of the foreman, was that of a fellow servant. 11

§4121. Duty to Warn and Instruct Concerning Dangers in Ex-
cavating. — There is nothing in this relation calling into existence any
new rule or principle. It is the duty of the master to warn and in-
struct his servant employed in excavating as to any danger attending
the employment which the master knows or of which he should know,
and which the servant does not know or of which he would not know
in the exercise of such care for his safety as his situation admits of.
For example, where a servant had never worked in a gravel-pit be-
fore, but was put to work in a pit which was being excavated with a
steam-shovel, without being warned of the danger of the perpendicular
bank, twenty feet high, caving in during the progress of the work,
and the caving, in was reasonably to be apprehended by the master,
as it usually happened several times a day, — the master was liable. 18
So, where the plaintiff was injured while working in a gravel-pit
under a street commissioner's direction, such street commissioner's
failure to inform him of the existence of a crack in the wall of the
pit, of which he had been informed, an'd to make an inspection, was
negligence, rendering the town liable. 14 But the failure of a gas com-
pany to ask how long a trench dug by the city had been dug, and to
tell its employ6 the length of time, before sending such employe into
the same to remove its gas-pipe therefrom, did not render it liable
for an injury to the employe caused by the caving in of the trench. 15

"Maltbie v. Belden, 167 N. Y. der for which was given at the

307 ; rev'g s. c. sub nom. Maltby v. time, where the foreman did not di-

Belden, 45 App. Div. (N. Y.) 384; rect the employ^ where to work,

60 N. Y. Supp. 824 (deceased could but merely gave a general order

know as well as foreman that a to all the men to go to work, and

burning tree was likely to fall; and did not see decedent working at

foreman could not tell when it that point, and the foreman had

would fall any better than deceased again directed the curbers to get

could). their tools and curb the place at

18 Daly v. Kiel, 106 La. 170; 8. c. the same time he ordered the rest

30 South. Rep. 254. of the men to work, after which he

14 Colorado City v. Liaf e, 28 Colo, walked off in the opposite direction ;
468; s. c. 65 Pac. Rep. 630. but before giving the order he had

15 Hughes v. Maiden Ac. Gas Light gone to the trench at the point
Co., 168 Mass. 395; s. c. 47 N. E. where it afterward oaved fn, in or-
Rep. 125. So, a master was not der to get some tools, and did not
chargeable with negligence on ac- see any indication that it was un-
count of the failure of a foreman to safe; and, though decedent was not
warn an employe 1 , who had reported^ present the day before, when the
that morning for work, against the' order to curb was given, he was ex-
danger of working in a sewer at perienced enough in that kind of
a point eight or ten feet deep on work to have seen that the place
which, under his orders work had was ready for it; since a foreman
ceased the previous day to afford haying fifty men under him cannot
an opportunity for curbing, the or- be 'expected to keep his eye con-


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§ 4122. Duty to Warn and Instruct Concerning the Dangers At-
tending Circular Saws and the Operations of Sawmills. — It has been
held that an employer is liable: — For placing an inexperienced em-
ploy£ at work at a machine which has a saw defectively and insecurely
fastened to its shaft, which is known to the employer but not to the
employ6, without giving him any instructions in respect to the danger,
if the employ^ himself is free from fault ; 16 for failing to warn an in-
experienced employ^ fifteen or sixteen years old of the danger from a
Tapidly revolving circular saw before sending him to work in the im-
mediate vicinity thereof, it being a question for a t jury ; 17 for direct-
ing a young and inexperienced employ^ to tie in a loose bolt attached
to a machine having revolving saws near the bolt, without warning
him that it is dangerous to do so without stopping the machine,, so
that the motion of winding the string around the bolt brings the em-
ployes hand in contact with the saws, although the employ^ knows
that the saws will cut him if he comes in contact with them; 18 but,
of course, negligence cannot be imputed to one who employs another
to work in a sawmill without warning him of the dangerous character
of the work, unless he knew or ought to have known that a warning
was necessary. 19

stantly on every man, and see that
be does not step into a place of dan-
ger; nor, having the care of so
many, can he be expected momen-
tarily to think of every danger that
may befall them, and guard against
It; hence a nonsuit was properly
granted: Burns v. Matthews, 146
N. Y. 386; s. c. 40 N. E. Rep. 731;
71 N. Y. St. Rep. 333; aff'g s. c. 66
N. Y. St Rep. 866 (mem.). Bart-
lett, J., dissented on the ground
that the evidence was conflicting as
to whether the foreman, as a vice-
principal, had discharged the duties
owing to decedent looking to his
safety and protection; and he was
of opinion that the case should
have gone to the jury.

"Greenberg v. Whitcomb Lum-
ber Co., 90 Wis. 225; s. c. 28 L. R.
A. 439; 63 N. W. Rep. 93 (saw es-
caped from shaft and struck plain-

"Barg y. Bousfleld, 65 Minn. 355;
s. c. 68 N. W. Rep. 45 (plaintiff,
while attempting to remove tub of
refuse, sawdust, etc., from under
the saw, got his hand between the
pile of refuse in the tub and the
under side of the saw, and had sev-
eral fingers cut off). .

"Greenville Oil Ac. Co. v. Har-
key, 20 Tex. Civ. App. 225; s. c. 48
S. W. Rep. 1005.

"Sladky v. Marinette Lumber
Co., 107 Wis, 250; s. c. 83 N. W.
Rep. 514 (adult employ^ — condi-
tions about the same as in other
sawmills). The question whether
a master ought to have warned a
servant seventeen years old of the
danger to be apprehended from al-
lowing objcts to touch a circular
saw in the rear is for the jury,
where the servant testifies that he
was not aware of the peculiar dan-
ger although he had had sufficient
experience to appreciate the more
plain and obvious dangers: Han-
son v. Ludlow Man. Co., 162 Mass.
187; s. c. 38 N. E. Rep. 363 (log
which plaintiff was removing from
behind the saw came in contact
with the saw and was thrown up
and forward, carrying plaintiff's
hand on to the saw). Condoning
negligent carelessness, it has been
held that there is no necessity of
a signal being given to an offbearer
in a sawmill of the starting of the
saw-carriage, where it is uniformly
started as soon as the hooks are re-
moved from the cants, and the car-


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

- § 4123. Duty to Warn and Instruct Concerning Poisons and Other
Noxious Substances. — Where an unwarned and uninstructed servant
was killed by inhaling noxious gases arising from Ihe sediment in a
chamber used for the manufacture of sulphuric acid, which chamber
the deceased had been ordered to enter and clean, and it appeared that
some men had been overcome by the gases the day before in the same
chamber, but that the deceased did not know of this, and was not
warned of it, — it was held that the employer was liable in damages
for the death of the servant, on the principle that he had sent the
servant to work without warning him of a latent danger of which he,
the master, had knowledge, but of which the servant was ignorant. 20

riage has been so operated hun-
dreds of times during the few days
he has worked at it It was the
plaintiff's duty to remove the hooks
from timbers, after they had been
raised to the saw-carriage by means
of a derrick, and it Is true that the
custom was to start the carriage
as soon as the hooks were removed,
and in such a case the plaintiff did
not need a signal; but in this case
the carriage was started before the
hooks were removed, and injured
the plaintiff. The accident could
have been avoided in all probability
had a warning-signal been uniform-
ly required when all was ready:
Olsen v. North Pac. Lumber Co.,
106 Fed. Rep. 298, per Bellenger, J.
Another court has held that an em-
ployer may, put an employs nearly
twenty-one years old at work on a
circular saw, without other instruc-
tion than running through one or
two sticks, and then watching while
the employ^ runs through two or
three sticks, where the employ^
states that he has run a circular
saw a very little, but is not an ex-
perienced hand, but makes no di-
rect request for further instruc-
tions, and informs no one that he
needs instructions: Wilson v. Steel
Edge Stamping Ac. Co., 163 Mass.
315, s. c. 39 N. E. Rep. 1039 (proper
to direct a verdict for d^^ndant).
In another case the plaintiff, experi-
enced in work in sawmills, was in-
jured while assisting to operate a
cut-off table and circular saw in the
defendant's mill. It appeared that,
if sawdust and bark were allowed
to accumulate at the bottom of the
machine, it would prevent the table
from operating so as to clear the


saw properly, and the saw would
project through the slot in the
table. The machine was of simple
construction. The accident was
caused by the plaintiff pushing a
shingle-bolt on to the table while
an obstacle was lodged between the
top timbers and the base of the
legs of the table, so that the table
did not operate properly and was
not clear of the saw. The move-
ments of the machine were appar-
ent to the operators. The table
swung back from the saw on a
pivot, and it -could be easily deter-
mined by the position of the table,
without looking at the saw,
whether It was clear of the latter.
It was held, in an action for dam-
ages, that the liability of sawdust
and bark to accumulate at the base
of the table, thereby hindering the
operation of the machine, and the
probable effect thereof, were open
to ordinary observation, and the de-
fendant was not guilty of negli-
gence in allowing the plaintiff to
work without Instructions as to the
danger: Willis v. Besser-Ohurchill
Co., 126 Mich.. 659; s. c. 8 Det Leg.
N. 199; 86 N. W. Rep. 133 (judg-
ment for plaintiff reversed).

"Williams v. Walton ftc. Co.. 9
Houst. (Del.) 322; s. c. 32 Atl. Rep.
726. In a decision which seem-
ingly ignores this salutary duty of
the master, it was held that a mas-
ter is not ' chargeable with negli-
gence in failing to inform an em-
ploy6 nineteen yea'rs old of the dan-
ger Incident to the task of steam-
ing colored paper, so that it might
be more easily folded, from the
presence of certain poisonous com-
pounds in the paper, where steam-

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§ 4124. Duty to Warn and Instinct Concerning the Dangers of
Revolving Set-Screws. 21 — A set-screw projecting beyond a revolving
shaft or pulley is a dangerous contrivance, which has in many in-
stances been the cause of cruel injuries to employes. Nevertheless the
courts have condoned the wickedness of maintaining such contrivances
in so many cases that the legislatures have been obliged to step in
and prohibit the use of them. We now come to decisions which go so
far as to hold that it is not negligence in an employer to fail to warn
his servant against injury from this contrivance, on such flimsy pre-
texts as that the servant might have performed his work without dan-
ger by another method;* or that a workman who was injured was
on an errand of his own to a part of the mill where his duties did not
require- him to go, and that, knowing the danger of stepping over a
revolving shaft, he wore an apron which he raised only enough to clear
the shaft, where the apron was caught in the key and he was injured,
although he did not know of the additional danger of the projecting

§4125. Duty to Wain and Instruct Concerning the Danger of
Getting Caught in Cogwheels, Boilers, etc. — It has been held that a
master is not negligent in failing to instruct a female employe thirty
years of age and of ordinary intelligence, as to the danger of getting
her hand caught in cogwheels on the machine at which she is put at
work, where such wheels are in plain sight and the danger therefrom
is obvious, even though such employ^ is unfamiliar with machinery;
since the master has a right to assume that she has that knowledge
which is acquired by common experience. 24 It has been held that
negligence is not imputable to a master for failing to tell a seventeen-
year-old boy of more than usual enterprise and intelligence, employed
on a machine for five or six weeks in guiding the cloth through it,

ing the paper was not a usual proc- O'Keefe v. National Folding Box

ess in the factory, and the master Ac. Co., 66 Conn. 38; s. c. 33 Atl.

did not know of the poisonous com- Rep. 587. If these things are so

pounds, and the servant has as good commonly known that a court can

means of determining whether they take judicial notice of them, why

existed or not as the master, if the may an employer wait until he has

task was within the scope of the "tried it on a dog" before he is

servant's employment. Baldwin, J., chargeable with notice of it?

says: "The court may properly take " Stee also, ante, § 4022.

judicial notice that some colored * Keats v. National Heeling Mach.

paper is dyed with poisonous sub- Co., 65 Fed. Rep. 940; s. c. 13 C. C.

stances; but it is equally bound to A. 221.

take judicial notice that this is not . a Anderson v. Berlin Mills Co.,

true of all colored paper." Again 88 Fed. Rep. 944; s. c. 50 U. S. App.

he says that "the volatilization of 413.

poison by the action of steam is a M Ruchinsky v. French, 168 Mass.

matter of coYnmon knowledge": 68; s. c. 46 N. E. Rep. 417.


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

who understands the danger of getting his hands drawn in the ma-
chine, and knows that if they are drawn in they will be burned, and
that the cloth passing through the machine is made up of different
pieces sewed together, in which there are tears of various sizes and
shapes, — that there are liable to be holes also in the cloth, although
he testifies that he had seen no holes in the cloth, and that his hand
was caught in a hole in a seam where two pieces of cloth were stitched
together, and drawn into the machine, where others testify that such
holes frequently occur; since, if he needed no instruction concerning
tears, he did not, except for an extremely refined reason, need any for
holes. 25

§ 4126. Illustrations in Various Other Lines of Service. — Employ-
ers have been held liable for failing to warn and instruct their em*
ploy6s under the following circumstances : — Where giant powder was
used for ordinary blasting purposes, without instructing the servant
of the proper mode of using it, although the employer had in his
possession printed directions as to that mode, in consequence of which
the employ6 was injured ; 2e where a common laborer was put to work
at a dangerous machine, without being instructed as to the dangers
attending it, and was injured before he had worked at it long enough
to become familiar with it; 27 where an employ^ was ordered to dig
a trench for the purpose of shifting a telegraph-pole, without being
warned of the danger, and was injured by the pole falling in conse-
quence of the props for holding it in an upright position not being
supplied by his employer ; 28 where the master placed in the hands of
a servant a vicious horse and failed to warn him of the nature of the
animal; 29 where an employ 6 was put to work shovelling coal and re-
moving materials from a dock beneath a trestle, and was injured by
the work of tearing down the trestle, which had been commenced
without giving him any notice of it; 80 where- an employe is injured
while feeding a circular saw known as a "resaw" by reason of his
inexperience in its use and in the proper method of feeding it, his
employer having given him no instructions, although he knew of his

28 Shine v. Cocheco Man. Co., 173 * East St. Louis Ac. R. Co. v. En-
Mass. 558; s. c. 54 N. E. Rep. 245. right, 47 111. App. 494.

"Smith v. Oxford Iron Co., 42 "George H. Hammond Co. v.

N J. L. 467; s. c. 36 Am. Rep. 535. Johnson, 38 Neb. 44; s. c. 56 N. W.

"Chicago &c. Pressed-Brick Co. v. Rep. 967; Helmke v. Stetler, 69 Hun

Rembarz, 51 111. App. 543; s. c. aff'd (N. Y.) 107; s. c. 52 N. Y. St Rep.

sub nom. Barnes v. Rembarz, 150 528; 23 N. Y. Supp. 392.

111. 192; 8. c. 37 N. E. Rep. 239. "Northwestern Fuel Co. v. Dan-

Similarly, see Brennan v. Gordon, ielson, 57 Fed. Rep. 915; s. c. 6 C.

118 N. Y. 489; s. c. 29 N. Y. St. Rep. C. A. 636.
829; 8 L. R. A. 818; 23 N. E. Rep.


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ignorance; 81 where a mine-owner failed to warn his employ6 of the
dangers which might arise from an unexploded blast, in the vicinity
of which he was working, of which the foreman of the mine knew, or
might by reasonable diligence have known ; 32 where an employer failed
to notify its employes of the danger of flying molten iron when a boil
of iron was punctured, such employes working in a trench into which
the iron would flow; 38 where an employer directed his employ6 to
clean off the snow from a roof without notifying him of the existence
of a skylight in another roof suddenly covered by a fall of snow; 84
where an employer failed to notify his employ6 that an elevator,
which he would have occasion to use, was undergoing repairs which
were not completed ; 86 where a superintendent of a foundry, about to

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 50 of 165)