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Commentaries on the law of negligence in all relations online

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course, be the proximate cause of the injury. Thus, it has been held
that a master is not liable to a servant injured upon an elevator, for ,
want of an employ^ to give signals to start and stop it, where the
servant himself gave the signal to start, and the injury did not arise
from the starting. 2 So, it has been held that an employe cannot
charge a railroad company with negligence in running a train in
a city at a higher rate of speed than that prescribed by statute, unless
his injury can be traced to that cause, — as, by showing that it re-
sulted from a collision with some object at a street-crossing. 8 A
leading illustration is found in the proposition that the failure of
the master to employ a sufficient number of hands to conduct his
business with safety to the servants there engaged, will make him lia-
ble for damages for an injury to any one of them proceeding from that
cause, unless, under principles hereafter considered, 4 the circum-
stances are such that they are deemed to accept the risks of the service
under those circumstances. 5

1 Ante t S 3805; Webster v. Foley, *Lockwood v. Chicago Ac. R. Co.,

21 Can. S. C. 580. 55 Wis. 50.

•Riordan v. Ocean S. S. Co., 124 4 Post t §§ 4768, 4829.

N. Y. 655; s. c. 36 N. Y. St. Rep. * Ante, * 3807; Johnson v. Ash-

476; 9 Rail, ft Corp. L. J. 426; 26 N. land Water Co., 71 Wis. 553; s. c.

B. Rep. 1027. 5 Am. St. Rep. 243; 37 N. W. Rep.

367 ,

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

§ 4176. Liability of Master for Injuries of this Nature. — An elec-
tric-light company is liable to a man sent to work upon one of its
towers, where he is injured by the turning on of the electric current
before the usual time. 6 A man who goes inside a steam-boiler to re-
pair it, is entitled to a diligent supervision on the part of the owner
to the end that he is not injured while there. His position is an-
alogous to that of car-repairers operating under cars standing upon
the railway-track. Where such a person, while so engaged, was
scalded with hot water from an apparatus under the control of the
engineer of the vessel, it was held that he was entitled to recover dam-
ages of the ship, whether the accident was caused by the negligence
of the engineer or his subordinates, or by the intermeddling of a
stranger. 7

§4177. Omissions which have been held Insufficient to Charge
the Employer. — Collecting a number of cases, without attempting to
analyze the grounds upon which all of them proceed, it has been held
that the omission of an employer to furnish means to stop his mar
chinery in case of accident, will not be ascribed to him as negligence ;*
nor will the omission to have and use a counter-shaft and a fast and
loose pulley, which would have made it safer to connect and disconnect
the power from a machine; 9 nor does the mere happening of an acci-
dent to an employe 1 , in using a machine not shown to be defective, ren-
der the employer liable for injuries so sustained, although another em-
ploye was previously injured while engaged on the same machine ; 10 nor
an accident to an employe^ through the breaking of an elevator, which
could have happened without negligence of the engineer in charge of
it ; 11 nor the fact that a mill-owner furnishes a sawyer operating a cir-
cular saw with wood that is uneven and knotty, in sawing which he is
killed; 12 nor is he liable for any injury that is to be ascribed to the
negligence of a fellow servant, instead of to the defect in the ma-
chine, — as where an employ^ is injured by a blow from a piece of
iron attached to a lathe in operation near him, where the negligence,
if any, is that of the foreman of the lathe in failing properly to se-

823; Jones v. Old Dominion Cotton (N. T.) 377; s. c. 24 N. T. St Rep.

Mills, 82 Va. 140; B. c. 3 Am. St 360; 5 N. T. Supp. 306.

Rep. 92; Heiner v. Heuvelman, 45 "Benedict v, Schneider, 38 N. Y.

N. Y. Super. Ct 88. St. Rep. 201; s. c. 14 N. Y. Supp.

6 Colorado Elec. Co. v. Lubbers, 11 888. Similarly, see Neff v. Broom,

Colo. 505; s. c. 7 Am. St Rep. 255. 70 Ga. 256.

T Keiley v. The Alliance, 44 Fed. "Kern v. De Castro Ac. Co., 125

Rep. 97. N. Y. 50; s. c. 34 N. Y. St Rep.

"Gordon v. Reynolds Card Man. 363; 25 N. E. Rep. 1071.

Co., 47 Hun (N. Y.) 278; s. c. 14 N. "Hooper v. Snead Iron Works,

Y. St. Rep. 394. 12 Ky. L. Rep. 483; s. c. 14 S. W.

•Jacobson v. Cornelius, 52 Hun Rep. 542 (no off. rep.).


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cure the counter-balance, and there is no proof of any superior kind
of lathe in general use ; 18 nor where the evidence fails to show that
the defect in the machine, upon which the negligence is predicated,
was the efficient cause of the accident, but leaves it equally probable
that it may have been due to some other cause ; 14 nor where a sliding
door was not properly secured, if the work the servant was doing re-
quired the door to be opened; 18 nor where there was a projecting nut
or screw securing a collar to a shaft, whereby a boy was injured, who
might have avoided coming in contact with it, — and this although the
collar could have been secured to the shaft without a projecting nut
or screw ; 16 nor where a boy fifteen years old was injured while operat-
ing a machine, where it was of the kind ordinarily used in the busi-
ness, and had operated well for a long time before the accident, and,
without any alteration or readjustment, continued so to operate for
a long time afterwards; 17 nor where an employe was injured by a
sliver being broken off the end of a chisel when struck by a sledge,
in the absence of evidence that the condition of the chisel before be-
ing struck was dangerous, or that a reasonable examination would
have disclosed the danger ; 18 nor where an employ6 in a foundry was
injured by a pot of metal which he was engaged in handling, tipping
over and spilling the molten metal upon him, where the cause of the
accident was conjectural, but the preponderance of the evidence was
that it was caused by his own act ; 19 nor where there was a depression
of about one-fourth of an inch in a platform over which an employ6
was wheeling barrels at the time of being injured, — especially where
it was improbable that the imperfection played any part in the acci-
dent occasioning the injury complained of; 20 nor, of course, where
the accident is ascribed to the negligence of the employ^ as its effi-
cient cause, and not to the negligence of the employer. 21

"Faber v. Carlisle Man. Co., 126 N. Y. 369; s. c. 54 N. Y. St Rep.

Pa. St. 387; s. c. 17 Atl. Rep. 621. 653; 34 N. B. Rep. 901.

"Breen v. St. Louis Cooperage n Ingermann v. Moore (Cal.), 25

Co., 50 Mo. App. 202. Pac. Rep. 275 (no off. rep.). In an

u Daigle v. Lawrence Man. Co., action by a railway employs against

159 Mass. 378; s. c. 34 N. E. Rep. the company for a personal injury,

458. evidence that when he was lining

"Hale y. Cheney, 159 Mass. 268; the track on trestle twenty feet

8. c. 34 N. B. Rep. 255. high, his boss told him to hurry;

"Dingley v. Star Knitting Co., that he used a pinch-bar as a lever

134 N. Y. 552; s. c. 48 N. Y. St. Rep. to push the track into position, rest-

336; 12 Rail. ft Corp. L. J. 310; 32 ing one end on the bridge-stringer,

N. E. Rep. 35. and threw his weight against the

u Mulligan v. Crimmins, 75 Hun bar, and the wood of the stringer

(N. Y.) 578; s. c. 58 N. Y. St. Rep. split off, and he fell to the ground,

737; 27 N. Y. Supp. 819. breaking his leg,— was held not to

a Hansell v. Jansen, 46 111. App. make a prima facie case: Oassaway

335. v. Georgia South. R. Co., 69 Ga.

" Kaare v. Troy Steel Ac. Co., 139 347.

vol. 4 thomp. neg. — 24 369

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





4179. General principles governing

such liability.

4180. Mine-owner not an insurer of

the safety of his appliances
or methods.

4181. Liability of mine-owner for

injuries to miners from ex-
plosions of fire-damp.

4182. Statutory liability of mine-

owners for Injuries to min-

4183. Statutory duty to provide suit-

able ventilation in mines.

4184. Liability under the Illinois

Miners Act

4185. Failure to comply with a pro-

vision of the same statute
requiring an examination
of the mine each morning.

4186. Liability under same statute

for failing to provide ade-
quate means of egress.

4187. Liability under same statute

for failing to provide safe
means of hoisting or lower-
ing miners in a cage.

4188. Liability under the Indiana


4189. Liability under the Missouri


4190. Liability under the West Vir-

ginia statutes.

4191. Liability for injuries caused

by the falling of the roof of
the mine.

4192. Cases exhibiting evidence of

negligence in failing to
prop the roofs of mines.



4193. Liability for injuries from

falling rock, coal, ore, etc.,
other than falling roofs.

4194. Duty to keep a supply of tim-

bers for propping and shor-
ing up.

4195. Failing to provide place of

refuge on hauling-roads
and gravity roads.

4196. Failure to provide barriers

upon ore-tramways to pre-
vent cars from running
into the shaft of the mine.

4197. Injuries in "timbering"


4198. Objects falling down shaft of


4199. Duty of mine-owners as to

ladders, scaffolding, etc., in
their mines.

4200. Caving in of the shaft.

4201. Duty of mine-owner to give

warnings of danger.

4202. Negligence with respect to

stulls and platforms.

4203. Electric wires not properly in-


4204. Negligence after the breaking

out of a Are in a mine.

4205. Duty to cut separate manway

for ingress and egress.

4206. Employment of a mine boss

or mine-foreman. %

4207. Who is the "owner, agent or

operator" within the mean-
ing of a statute.

4208. Failure to protect the shafts

and stairways by hand-

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4209. Employment of , competent

and fit servants in mines.

4210. Employment of children in


4211. Negligence with respect to un-

exploded blasts.

4212. Proximate and remote cause

of injuries in and about


4213. Sending empty bucket down

shaft to ascertain whether
shaft is free from obstruc-

4214. Negligence with respect to the

construction or repair of
the cage in which miners
are lowered and raised.

4215. Various negligences for which

mine-owner has been held

§ 4179. General Principles

lessee or operator of a mine
announced elsewhere in this
skill to keep his mine free
liable to them in damages if
this particular without fault
and skill must manifestly be
of this employment. 2

Governing such Liability. — The owner,
is bound, under the leading principles
Title, to exercise reasonable care and
from danger to his employes, and is
they are injured through his default in
of their own; 1 which reasonable care
proportionate to the very great dangers

§ 4180. Mine-Owner Not an Insurer of the Safety of his Appli-
ances or Methods. — But he is not an absolute insurer of the appli-
ances which he furnishes, or of the method which he adopts or pursues
in carrying on his work. He will generally discharge himself from
the imputation of a want of ordinary care by adopting and using such
appliances as are commonly in use in mines of the same kind in the
same mining district; 8 especially where the appliance is of a kind
which has long been used without accident in his own and in other
mines. 4 He will not be liable in damages for an injury caused by the
breaking of timbers which have become rotten, where the outside por-
tion of the wood presents every appearance of being perfectly sound,
and its deceptive condition is liable to mislead the most careful ob-

1 Sampson Min. Ac. Co. v. Schaad,
15 Colo. 197; s. c. 25 Pac. Rep. 89;
Ashland Coal Ac. R. Co. v. Wallace,
101 Ky. 626; s. c. 19 Ky. L. Rep.
849, 857; 42 S. W. Rep. 744; 43 S.
W. Rep. 207.

8 Vol. I, § 25; ante, I 3772; Ash-
land Coal &c. R. Co. v. Wallace,

•A coal company, for example, is
not guilty of negligence In failing
to provide any appliance or means
or method by which warning can be
given to persons working in a pock-

et that a draw is about to be made
of the coal from the chutes, where
none of the numerous colleries in
the district have any appliances of
any kind for such signals, and all
the apparatus and appliances used
by such company are such as are
used in that district: Lehigh &c.
Coal Co. v. Hayes, 128 Pa. St. 294;
s. c. 18 Atl. Rep. 387; 5 L. R. A.
441; 47 Phila. Leg.- Int. 384; 24 W.
N. C. (Pa.) 559.
* Burke v. Witherbee, 98 N. Y. 562.


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

server; 5 nor for piling culm on the surface of the ground above the
mine, in the usual method followed in that coal region, especially
where it is merely conjectural whether such piling and subsequent
accumulation of water caused the roof of the mine to fall in ; e nor for
an accident in the operation of a hoisting-apparatus of the mine,
which the evidence does not attribute to the defective condition of the
apparatus, but to the negligence of a fellow servant; 1 nor, of course,
for an accident which the evidence does not attribute to the negligence
of himself or his vice-principal, — such as the explosion of a fuse
which failed to ignite, injuring a miner who was drilling it out,
where the superintendent failed to inform him that the fuse was wet,
when the explosion might have happened from a variety of causes. 8

§ 4181. Liability of Mine-Owner for Injuries to Miners from Ex-
plosions of Fire-Damp.— Notwithstanding the great dangers and the
dreadful calamities which accrue from the failure of mine-owners
to take measures for ventilating their mines so ad to prevent explosions
of the gases which accumulate therein, the rule of law is that they
are not bound to employ the most expensive precautions to that end,
but are held only to the use of reasonable efforts. 9

'Reinder v. Black Ac. Coal Co.,
12 Ky. L. Rep. 30; s. c. 13 S. W.
719 (no off. rep.). See also, ante,
§ 3785.

'Lineoski v. Susquehanna Coal
Co., 157 Pa. St 153; s. c. 33 W. N. C.
(Pa.) 204; 27 Atl. Rep. 577.

T Trewatha v. Buchanan Gold Min.
Ac. Co., 96 Cal. 494; a. c. 28 Pac.
Rep. 571. See also, post, §§ 4853,

8 Henderson v. Williams, 66 N. H.
405; s. c. 23 Atl. Rep. 365.

9 Berns v. Gaston Coal Co., 27 W.
Va. 285; s. c. 55 Am. Rep. 304. A
sounder doctrine is that they must
use all appliances readily attain-
able, known to science, for the pre-
vention of accidents arising from
the accumulation of gas and other
explosive substances in the mine;
and an instruction so charging is
correct: Western Coal Ac. Co. v.
Berberich, 94 Fed. Rep. 329; s. c. 36
C. C. A. 364 (citing Mather v. Rill-
ston, 156 U. S. 391; s. c. 39 L. ed.
464, where the above is said to
be "laid down as a legal prin-
ciple" in regard to all occupa-
tions attended with great and
unusual danger, in discussing
the duties of mine-owners to their


employes). A mining company vio-
lated Its duty in respect to provid-
ing its employes with a safe place
in which to work, where, through
its foreman, it directed plaintiff, an
inexperienced employs, to go with
another workman into an upraise
known to be filled with powder-
smoke, gas and foul air, and is
liable to plaintiff for an injury re-
sulting from the effect of such foul
air on the other workman, plaintiff
not being guilty, on account of his
inexperience, of contributory negli-
gence in exposing himself to the
danger: Portland Gold Min. Co. v.
Flaherty, 111 Fed, Rep. 312; s. c. 49
C C. A. 361 (the other employe 1 pre-
ceded the plaintiff in the ascent; he
was overcome by the gas and foul
air, and fell and struck the plaintiff,
causing plaintiff to fall to the bot-
tom of the up-raise and receive in-
juries). The presence of dangerous
gas in one room of a mine which is
marked with a danger-signal, pro-
hibiting all miners entering with a
naked light, is not negligence on the
part of the mine-owner towards a
miner, working by contract in an-
other room of the mine, who knows
that the custom in the mine is that

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§4182. Statutory Liability of Mine-Owners for Injuries to

Miners.— Where the statute imposes upon the mine-owner an ex-
press duty to the end of protecting his miners, a failure to perform
that duty will, as already seen, 10 be negligence per se, — as where the
statute requires the owner or operator of a coal mine to supply the
workmen therein with suitable timber for props and supports to se-
cure the workings from falling in. 11 On the other hand, statutes of
this kind may be so ably drawn by the lawyers of mining companies
as to diminish the liability which the common law puts upon such
masters. Such would seem to be the case in respect of a statute of
Pennsylvania, 12 — at least, it was so construed by a court which evi-
dently had great solicitude for the rights of the miners, and which
was so deficient in general learning as to say in its opinion that the
principle "that the employer cannot be made responsible for the dam-
ages resulting to a servant from the negligence of a fellow servant, is
a principle as old as the common law." The court took the view that
if an operator of an anthracite-coal mine has employed a competent
person to drive a gangway in his mine, he is not liable in damages for,
the death of another miner, even though it resulted from the de-
fective construction of the gangway, if the proprietor had no notice or
knowledge of the defect; but that it is to be attributed to the negli-
gence of a fellow servant, 18 -^a conclusion which, as we have seen, 14
is contrary to the rule of the common law as understood by nearly
all of the courts. 15

§ 4183. Statutory Duty to Provide Suitable Ventilation in Mines.

— The omission to comply with the requirements of statutes enacted
to prevent accidents due to unsuitable ventilation, is, on principles
elsewhere considered, 18 negligence per se,— such as the omission to

work will be carried on without as to keep safe, as far as possible,
cessation, although there is stand- persons descending into and ascend-
ing gas in certain rooms, where ing out of said shaft/' although he
Mich rooms are marked with the may not be strictly within the let-
danger signal : Cerrlllos Coal R. Go. ter of the clause: Durant v. Lex-
v. Deserant, 9 N. M. 49; s. c. 49 ington Coal Min. Co., 97 Mo. 62;
Pac. Rep. 807. s c. 10 S. W. Rep. 484.

10 Vol. I, § 10. " Pa. Act of March 3, 1870.

11 Hochstetler v. Mosier Coal fte. "Waddell v. Simonson, 112 Pa.
Co., 8 Ind. App. 442; s. c. 35 N: E. St. 567.

Rep. 927. A person employed as "Ante, ft 3874.

eager at the bottom of the shaft of "Liability under English Metal-

a coal mine, who is injured in the liferous Mines Regulation Act, 1872,

performance of his duty by a lump § 23, subsec. 10, for drawing men

of coal falling upon him from the up a "working-shaft" in a bucket

top of the shaft from an uncovered unprovided with guides: Foster v.

cage, is entitled to recover damages, North Hendre Min. Co., [1891] 1 Q.

under the Mo. Act of March 23, 1881, B. 71.

requiring the cage to be covered "so M Vol. I, 8 10; Mosgrove v. Zlm-


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

provide means of ventilation and circulation so as to carry off dan-
gerous gases ; to employ a fire-boss to examine the working-places and
other places where such gases are known to exist; to employ a mining-
boss to keep watch over the ventilating-apparatus, the air-ways, the
travelling-ways, the pumps, the means of drainage, and to see that
proper break-throughs are made, and that all loose coal or rock over-
head is' removed and proper timbers and props provided ; — all or any
of these omissions will render the mine-owner or operator liable for
any injuries resulting therefrom; 17 though where the statute predi-
cates the liability of the mine-owner upon his willful neglect of the
statutory requirement, the question whether his failure to comply with
the statute was willful is necessarily a question for a jury. 18 The
failure of a mine-owner to comply with such a statute, whereby his
employ6 is injured without his own fault, entitles the employ^ to re-
cover damages from the employer, although the statute provides no
penalty for its violation. 19 A prima facie case for the recovery of such
damages is made out when it is shown that the injury to the em-
ploye was caused by an explosion in the mine, and that the defendant
had not complied with the statute. 20 Under the Act of Congress of
March 3, 1891, 21 the operator of a mine is required to use reasonable
efforts to secure the requisite ventilation for the miners, requiring
them to provide adequate ventilation of not less than a specified num-
ber of cubic feet of air per minute for so many men, and force the
same through the mine by proper appliances ; and an instruction has
been held improper which implies that the operator is absolutely
bound to secure such ventilation. 22

bleman Coal Co., 110 Iowa 169; s. c. "Godfrey v. Beattyville Coal Co.,

81 N. W. Rep. 227 ("every person 101 Ky. 339.

while violating an express statute is n 26 U. S. Stat, at Lg. 1104.

a wrong-doer, and is ex necessitate "Cerrillos Coal R. Co. v. Deser-

negllgent in the eyes of the law"), ant, 9 N. M. 49; s. c. 49 Pac. Rep.

"Graham v. Newburg Orrel Coal 807. There is a holding to the ef-

&c. Co., 38 W. Va. 273; s. c. 18 S. E. feet that if the owner of a mine has

Rep. 584. But it has been held negligently allowed fire-damp to ac-

that the stoppage of ventilating- cumulate, and it is ignited by a

machinery in a mine from Saturday servant who goes into it with a

night until Sunday night is not neg- lighted lamp, instead of a safety-

ligence as matter of law, in respect lamp, contrary to the owner's or-

to the employe's in the mine, where ders, and another servant is in-

it is started and continuously run jured by an explosion, the latter has

for twelve or fourteen hours before no remedy against the owner:

an accident occasioned by the ex- Berns v. Gaston Coal Co., 27 W. Va.

plosion of gas in the mine: Mor- 285; s. c. 55 Am. Rep. 304. But this ,

gan v. Carbon Hill Coal Co., 6 Wash, holding is probably unsound, in '

577; s. c. 34 Pac. Rep. 152. that it violates the principle that

19 Muddy Valley Min. Ac. Co. v. the servant is entitled to recover

Philips, 39 111. App. 376. damages where the hurt was re-

"Mosgrove v. Zimbleman Coal celved through the negligence of

Co., 110 Iowa 169; s. c. 81 N. W. the master in falling to perform

Rep. 227. one of his absolute duties, although


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§4184. Liability under the Illinois Miners Act. — The Constitu-
tion of Illinois, adopted in 1870, contains this provision : "It shall
be the duty of the General Assembly to pass such laws as may be nee-*
essary for the protection of operative miners, by providing for venti-
lation, when the same may be required, and the construction of es-
capement-shafts, or such other appliances as may secure safety, in all
coal mines, and to provide for the enforcement of said laws by such
penalties and punishments as may be deemed proper." 2 * In con-
formity with this provision, an act was passed in 1872 by the Legis-
lature of Illinois, entitled "An act to provide for the health and
safety of persons employed in coal mines," and another act of the
same nature in 1877. The Supreme Court of Illinois affirmed the
constitutionality of that part of this statute which requires maps of
coal mines to be made and kept, and copies thereof to be filed with
the inspector of coal mines and recorded in the office of the recorder
of deeds. 25 The statute prescribes a system of rules and regulations
to be observed by mine-owners for the protection of their miners, and
provides : "For any injury to persons or property, occasioned by any
willful violations of this act, or willful failure to comply with any of
its provisions, a right of action shall accrue to the party injured, for

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 55 of 165)