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Commentaries on the law of negligence in all relations online

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§4235. Assaults upon Seamen.— The owner of a vessel is not
liable for an assault committed on a seaman by the master, unless the
latter was acting within the scope of his duty and in the exercise of his
control over plaintiff. So, where the master assaulted a seaman for an
act of disobedience, after tl?e emergency had passed, and the act had
been done, the master was not in the line of his duty, and the owner

had observed it in his work every
day for six months. After the
break, however, an old crack was
discovered in the bolt, which was
not discoverable without removal
from its position, it being below
the surface of the deck. It was held
that defendant was not negligent in
failing to remove the bolt, after so
brief a use, for the purpose of in-
specting its condition for latent de-
fects, unless its attention was di-
rected to the propriety of doing so:
Killman v. Robert Palmer Ac. Ship-
building &c. Co., 102 Fed. Rep. 224;
s. c. 42 C. C. A. 281.

47 Red River Line v. Smith, 99
Fed. Rep. 520; s. c. 39 C. C. A. 620.
The owner of a steamboat engaged
in the river trade on the Missis-
sippi is not liable for the death of
a servant who fell overboard while
unloading cotton at night from a
barge onto the steamboat, because
of the failure of the electric lights,
which was not shown to have been


the fault of the owners or the mas-
ter, but was an incident common
to the employment of such lights,
where the lard-oil hand-lanterns fur-
nished as a substitute were the best
that could be obtained under the
circumstances, and formerly were
considered fully sufficient for the
purpose: Red River Line v. Smith,

"Chesley v. Nantasket Beach
Steamboat Co., 179 Mass. 469; s. c.
61 N. E. Rep. 50. Plaintiff in an ac-
tion for personal injuries, was em-
ployed* by defendant company as
fireman on a tug, and to perform
other duties as a deckhand. The
accident complained of occurred
while pushing a tow to her landing.
Plaintiff had been directed by the
captain to handle a fender over the
stern of the tug, and while so doing
a mooring-line from a steamer
alongside the tug was dropped
across the latter's deck, and unex-
pectedly catching on an obstruction,

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was not liable; the owner not being liable for an assanlt made by way
of punishment for disobedience. 49 In the opinion of the Court of Ap-
peals of New York, the owners of a vessel are not liable in damages
for the malicious and willful acts of its master in assaulting and
injuring a seaman while upon the high seas. Such an act, being
of a criminal nature, is not in violation of any duty imposed on
the owners by maritime law, and the doctrine of respondeat su-
perior has no application. The master and seamen of a vessel are
engaged in a common employment and are fellow servants, although
of different grades, and while the master in rendering to the seaman
that care and in performing those duties imposed upon its owners by
the maritime law represents them, and for a neglect of duty in these
respects they are liable, in all matters outside the scope of the master's
employment and without the authority committed to him by maritime
law, his misconduct is a risk assumed by the seaman, for the conse-
quences of which the owners are not responsible. 60

§ 4236 Miscellaneous Injuries to the Employes of Vessel-Owners. —

The mere fact that a stop-valve in a steam-pipe of a steamship is
broken in some way while the vessel is in port, causing injury to an
employ^, is not in itself sufficient to create a liability on the p$rt of
the owners. 51 The owner of a fishing-tug is liable at common law,
apart from statute, for the death of a fireman, who fell overboard and
was drowned as the result of the breaking of a defective wooden handle
of a heavy box filled with fish as he was dragging it along the deck of
the tug according to the usual practice, where the defect could have

it became fast, and then, after be- ter, is too sick to obey the order,
ing pulled tight, slipped loose, strife- he assumes the risk of being beaten
ing plaintiff and causing the injury- and kicked and having his leg
There was no evidence that the cap- broken in order to compel obedience
tain had any reason, at the time of to the order — which was what hap-
direct ing plaintiff, to suppose that pened in this case. Gray, J., wrote
he would be subject to risk. The the majority opinion, which was
accident could not have been fore- concurred in by Earl, C. J., and
seen by him. It was held that plain- Andrews and Peckham, JJ. May-
tiff could not recover: Independent nard, J., wrote a dissenting opin-
Tug Line v. Jacobson, 84 111. App. ion, which was concurred in by
684. Finch and O'Brien, JJ.

* Spencer v. Kelley, 32 Fed. Rep. 8l Wyman v. The Steamship Duart

838. Castle, 6 Can. Exch. 387 (valve was

•° Gabrielson v. Waydell, 135 N. Y. of cast iron, had only been in use

1; s. c. 47 N. Y. St. Rep. 848; 31 for one year, the break was clean

N. E. Rep. 969; rev'g s. c. 40 N. Y. and bright, and there was expert

St. Rep. 991; 15 N. Y. Supp. 976; testimony that a cast-iron valve was

which aff'd s. c. 36 N. Y. St. Rep. a proper one to use, instead of a

674; 14 N. Y. Supp. 125. The effect wrought-iron or brass one as con-

of this holding is that if a sailor, on tended by plaintiff) .
being ordered on deck by the mas-


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

been discovered by proper inspection. 52 The plaintiff was employed by
defendants, who were ship-repairers, to assist their foreman in making
such repairs to a vessel as the engineer thereof should direct. The
engineer directed the repair of a band at the bottom of a ventilator
made of boiler-iron, projecting into the fire-room. While the fore-
man and the plaintiff were fastening the band around the ventilator
the lower part of the ventilator broke off, through some defect in the
riveting, and injured the plaintiff. It was held that the defendants
were not liable on the ground of having failed to provide a* safe place
to work, since the work could only be done in the fire-room, which was
a safe place unless made unsafe by the prosecution of the work itself;
that, if the accident was due to defects in the riveting, the defendants
were not liable, they having had no opportunity to inspect the venti-
lator, and exercising no personal supervision over the work. The
plaintiff was an experienced man at such work, and was himself negli-
gent either in failing to discover the defect or in putting too great a
strain on the ventilator while replacing the band. 58

§4237. Neglect to Furnish Proper Medical Aid to Seamen. —

Where the master of a vessel, who was also one of the owners, sailed
the vessel on shares, under an arrangement that he should pay for
victualling, manning, and furnishing supplies, the other owners hav-
ing nothing to do therewith, — this was not an actual demise, such as
to take from the other owners all possession, authority, and control ;
hence all the joint owners were liable for the master's neglect to fur-
nish proper medical aid to a seaman. 1

, m

° Sim v. Dominion Fish Co., 2 the night was dark, and the bridge

Ont. L. Rep. 69. not sufficiently lighted; that the de-

M Brown v. Terry, 67 App. Div. fendant's bridgeman told the cap-

(N. Y.) 223; s. c. 73 N. Y. Supp. 733. tain of the float on which plaintiff

In an action for personal injuries was employed, to draw out another

received by plaintiff while em- float in the slip so that he could

ployed, by another company than get in, and that fifteen or twenty

defendant, on a float containing minutes elapsed thereafter before

railroad-cars which was being the injuries occurred, while the

pulled into defendant's slip, evi- keys could have been pulled back

dence that the injury was caused within two minutes, — required the

by allowing large keys weighing submission to a jury of the issue of

several hundred pounds, used for defendant's negligence: Hart v.

adjusting and fastening the tracks Delaware 6c. R. Co., 76 Hun (N.

on the float to those on a movable Y.) 296; s. c. 59 N. Y. St. Rep. 110;

bridge, to remain projecting from 27 N. Y. Supp. 767.

the bridge after another float had "Scarff v. Metcalf, 107 N. Y. 211;

been taken away from the bridge, s. c. 13 N. E. Rep. 796; aff'g s. c. 36

instead of their being drawn back Hun (N. Y.) 202.
upon it, as was the custom; that

410 '

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§ 4238. Liability of Stevedores for Negligence of their Servants. —
A stevedore is liable for injuries to an employ^ of another stevedore
independently engaged in loading the same vessel, through the neg-
ligence of one of his own employ&j."

§ 4239. Compulsory Pilots. — There is not between the owners of a
ship, and the pilots whom they are compelled to employ, an implied
contract, that the pilot shall take* upon himself a risk of injury from
the negligence of the ship-owner's servants. Accordingly, where a
pilot went on board a vessel in the course of his duty, in a district
in which pilotage was compulsory, and while on board was killed by
the negligence of one of the crew, it was held that his widow, as exec-
utrix, could recover damages under Lord Campbell's Act. 86 It was
said that the case was covered by the rule in Indermaur v. 'Dames* 1 —
that ouq who invites another upon his premises is bound to take rea-
sonable caTe that such person is not injured while there.

"Brown v. Leclerc, 22 Can. S. C. W L. R.1 C. P. 274; s. c. afTd, L.

53. R. 2 C. P. 311; s. c. in full, 1

"•Smith v. Steele, L. R. 10 Q. B. Thomp. Neg. (1st ed.), p. 283.
125; s. c. 44 L. J. (Q. B.) 60.


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



Art. I. General Principles, §§ 4243-4251.

Art. II. Jnjuries to Railway Employes from Defective Tracks,

§§ 4253-4276.
Art. III. Injuries to Railway Employes from Objects Too Near the
Track,- §§ 4280-4305.

Subdiv. I. In General, §§ 4280-4284.

Subdiv. II. An Alphabetical Catalogue of Such Objects — Com-
pany Liable or Not Liable, §§ 4286-4305.

Art. IV. Injuries to Railway Employes from Defective or Unsafe
Bridges, §§ 4309-4317.

Art. V. Injuries to Railway Employes from Failing to Maintain
Safe and Sufficient Fences and Cattle-Guards, §§ 4319-4323.

Art. VI. Injuries to Railway Employes from Defects in Railway-
Yards, Switches, Frogs, and Other Switching-Appliances, §§ 4325-

Art. VII. Injuries to Railway Employes from Defects in Locomo-
tive-Engines and their Appliances, §§ 4346-4357.

Art. VIII. Injuries to Railway Employes from Defects in Cars,
Other than "Foreign" Cars, §§ 4360-4370.

Art. IX. Injuries to Railway Employes from Defects in "Foreign*'
Cars, §§ 4373-4390.

Art. X. Injuries to Railway Employes from Defective Brakes,
Brake-Beams, Chains, etc., §§ 4393-4403.

Art. XI. Injuries to Car-Couplers from Defects in the Coupling-
Appliances, §§ 4406-4422.

Art. XII. Injuries to Car-Couplers from Defects in the Road-bed
or Coupling-Grounds, §§ 4425-4427.

Art. XIII. Injuries to Car-Couplers from the Mode of Operation in
Making such Couplings or Uncouplings, §§ 4429-4442.

Art. XIV. Injuries to Railway Employes from Defective Hand-
Cars, §§ 4445-4448.

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Art. XV. Various Injuries to Kailway Employes in Operating En-
gines and Cars, §§ 4450-4541.

Subdiv. I. Moving of Trains, §§ 4450-4483.

Subdiv. II. Lights, Flagmen, and Signals, §§ 4488-4505.

Subdiv. III. Speed, §§ 4508-4510.

Subdiv. IV. Collisions, §§ 4512-4516.

Subdiv. V. Injuries in and about Railway-Yards and Switches,

§§ 4518-4530.
Subdiv. VI. Injuries Connected with the Loading and Unloading

of Cars, &$ 4533-4541.

Art. XVI. Various Unclassified Injuries to Employes in Railway
Operation, §§ 4543-4551.

Art. XVII. Injuries to Employes of Street-Railway and Elevated-
Railway Companies, §§ 4553-4555.

Article I. General Principles.

Section Section

4243. Degree of care required of edge and conform to the

railway companies for the latest improvements,

safety of their employes. 4248. Must make reasonable pro-

4244. Not bound to adopt every new visions against unknown

appliance. dangers.

4245. Further of the duty of rail- 4249. But bound to furnish proper

road companies as to the appliances and a safe road-

safety of their appliances. bed.

4246. Need not make changes to 4250. Duty to maintain appliances

conform to the latest lm- in a safe condition,

provements. 4251. Further as to this degree of

4247. Must keep pace with scientific care.

development and knowl-

§ 4243. Degree of Care Required of Railway Companies for the

Safety of their Employe's. — In respect of dangers and defects in a
railway company's roadway and bridges, such as are likely to re-
sult in injuries to passengers as well as to servants, it is difficult to
separate the degree of care which the company owes the travelling
public from that which it owes to those of its servants who are em-
ployed in running its trains and laboring at its stations. These serv-
ants, from the nature of their employment, have no opportunity to
inspect the track and inform themselves of its dangers and defects ;
and if the company owes them any duty at all in this regard, it is not
plain why it should be a duty inferior to that which it owes to the


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

travelling public. And some courts hold that it is not. 1 Thus,, the
Supreme Court of Illinois declares that the result of previous rulings a
is, not to hold these companies as insurers that their road, appurte-
nances, and instrumentalities are safe and in good condition, but that
they will do all that human care, vigilance, and foresight can rea-
sonably do, consistent with the modes of conveyance and the practi-
cal operation of the road, to put them in that condition and t6 keep
them so. 8 "The duty owing by a railroad company/' said Breese,
J., "to the public, as well as to those in their employment, is that
their road, and bridges and other appurtenances, shall be constructed
of the best material, having in view the business to be done upon it.
In their construction, they should equal those of the best roads doing
an equal amount of business, and the utmost care and vigilance
[should be] bestowed upon keeping them in a safe condition. The
law will not allow them to be out of repair an hour longer than the
highest degree of diligence requires. And further, it is their duty to
keep a sufficient force at command, and of capacity sufficient, to dis-
cover defects and apply the Temedy. Neglecting to keep it in the
best condition, if injury or loss occurs thereby, the companies will be
liable ; an£ they ought to be so liable. From this responsibility they
cannot be relieved, except by showing that the defect was one which
could not be discerned or remedied by any reasonable skill or fore-
sight."* Accordingly, an instruction which leaves out of view this
strong obligation, but places the liability of the company upon actual
knowledge of the defective construction, is erroneous. 5 This seems
to be the doctrine of the Court of Appeals of Kentucky, which has
held that the absence of slight care by -superiors in the management
of a railway-train is gross negligence, and will render the company
liable for consequent injuries sustained by a brakeman without- his
fault. 6 There may be cases where the question whether it. was the
duty of the engineer to inspect the track will be a question for the
jury. It was so held where, in passing trains over the tracks of two
other railroads, temporary rails had been put down as often as re-
quired, of which the engineer of a construction-train, who was in-

1 Chicago &c. R. Co. v. Swett, 45 234, and Pittsburgh &c. R. Co. v.

111. 201; Illinois &c. R. Co. v. Welch, Thompson, 56 111. 138.

52 111. 183; Illinois Ac. R. Co. v. "Toledo Ac. R. Co. v. Conroy, 68

Phillips, 49 111. 234; Pittsburgh Ac. 111. 560, 567; s. c. 61 111. 162.

R. Co. v. Thompson, 56 111. 138; * Toledo Ac. R. Co. v. Conroy, 8Ur

Dorsey v. Phillips &c. Co., 42 Wis. pra.

583, 597; s. c. 6 Cent L. J. 19. 'Toledo Ac. R. Co. v. Conroy, «u-

' What was said in Chicago &c. R. pra.

Co. v. Swett, 45 111. 201, was subse- * Greer v. Louisville ftc. R. Co., 94

quently modified in Illinois 6c. R. Ky. 169; s. c. 14 Ky. L. Rep. 876;

Co. v. Welch, 52 111. 183, and in 1111- 21 S. W. Rep. 649.
nols Ac. R. Co. v. Phillips, 49 111.


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jured in consequence of his engine running off the track at this point,
had notice. 7

§ 4244. Hot Bound to Adopt Every JJew Appliance. — It has been
said that the duty of a railway company is, to furnish good, well-con*
structed machinery, adapted to the purpose for which it is used, of
good material, and of the kind that is found to be most safe when
applied to use; it is not required to seek and apply every new in-
vention, but must adopt such as is found by experience to combine
the greatest safety with practical use. 8 It is not bound to discard
cars of an old pattern because the coupling of them with cars of a
new pattern is attended with more danger than the coupling of new
cars with each other. 9 Neither is it bound to adopt what is known as
the "target-switch/* simply because this kind of switch guards more
effectually against the negligence of switchmen than the common
switch, it appearing that the latter is safe when properly operated. 10
The Supreme Court of Tennessee has, however, held that the rule just
stated is not applicable to railroad companies. In the opinion of that
court, "the general doctrine is, that in proportion to the importance
of the business, and the perils incident to it, is the obligation of the
company to see that the engines and apparatus are suitable, suffi-
cient, and 'as safe as care and skill can make them'"; 11 which, no
doubt, expresses the extent of their obligation to passengers, but not to
their servants.

§ 4245. Further of the Duty of Railroad Companies as to Safety
of their Appliances.— While railroad companies, in selecting ma-
chinery and instrumentalities for the operation of their roads, must
keep themselves reasonably abreast with improved methods, they are
not required to adopt every new invention; but it is a sufficient ful-
fillment of their duty, if they adopt such as are in ordinary use upon
prudently conducted railroads engaged in like business and under like
circumstances. 12 This doctrine, variously express, is reaffirmed in
many cases. 18 Blame will not ordinarily be imputed to them for not

T Indianapolis Ac. R. Co. v. Love, 51 Georgia Pac. R. Co. v. Propst, 83

10 Ind. 554. Ala. 518; s. c. 3 South. Rep. 764.

• Toledo Ac. R. Co. v. Asbury, 84 u See, for example, Walsh v. Corn-
Ill. 429. mercial Steam Laundry Co., 11

•Fort Wayne &c. R. Co. v. Gilder- Misc. (N. Y.) 3; s. c. 63 N. Y. St.

sleeve, 33 Mich. 133. Rep. 461; 31 N. Y. Supp. 833 (not

10 Salters v. Delaware 6c. Canal bound to furnish to an employ 6 the

Co., 3 Hun (N. Y.) 338. Compare best known appliances for the work,

Piper v. New York Ac. R. Co., 1 but only those which are reason-

Tbomp. 6 C. (N. Y.) 290. ably safe) ; Gulf Ac. R. Co. v. Warner

"Nashville &c. R. Co. v. Elliott, 1 (Tex. Civ. App.), 36 S. W. Rep. 118

Coldw. (Tenn.) 611, 617, 618. (no off. rep.) (failure to block


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

adopting n£w and improved methods to promote the safety of their
employes, until such methods have come into general use. 14

§ 4246. Need Hot Hake Changes to Conform to the Latest Im-
provements. — The judicial courts frequently reiterate the proposition
that it is not incumbent upon railroad companies to adopt the latest
improvements or to make changes in their structures, or in their
road-beds, so as to conform with the most recently developed ideas. 15
For example, such a company cannot be required to remove a bridge
that is without fault in its plan or defect in its structure, while in
good repair and safe for the passage of trains, simply because some
engineer pronounces it not as good and. convenient as some other
kind. 16

§ 4247. Must Keep Pace with Scientific Development and Knowl-
edge and Conform to the Latest Improvements. — From the proposi-
tion of the last preceding paragraph, the judicial pendulum has swung
so far in the other direction as to announce, though obiter, the doc-
trine that the master must keep pace with scientific development and
knowledge, in so far as it affects his business and the safety of his
servants, and must keep himself and his representative informed of
latent dangers, even though it be through scientific information, if
such information .is readily attainable. But in applying this doc-
trine the court did not keep pace with its profession. The case was
that a servant in a packing-house was cleaning off decayed blood and
rust from an iron rail, and some of the substance got in his eye, and
the bacteria in it destroyed his eye. But none of the other employes
had ever experienced any bad effects from doing similar work. The
master was therefore held not liable, as such an accident was too ex-
ceptional in its nature. 17

guard-rails — question for jury); ing as to the general use of the

Gardner v. St Louis 6c. R. Co., 135 safety-lock on similar cranes, the

Mo. 90; s. c. 36 S. W. Rep. 214 question of negligence was for a

(need not furnish absolutely safe jury).

cars, tenders and appliances, but "Illick v. Flint Ac. R. Co., 67

only such as are reasonably safe). Mich. 632; s. c. 12 West Rep. 443;

"Lloyd v. Hanes, 126 N. C. 359; 35 N. W. Rep. 708.

s. c. 35 S. E. Rep. 611 (not negli- "Illick v. Flint &c. R. Co., 67

gence to run saw in factory without Mich. 632; s. c. 12 West. Rep. 443;

a certain safety-appliance not shown 35 N. W. Rep. 708 (brakeman

to have come into general use) ; knocked off side-ladder of car in go-

Bonner v. Pittsburgh Bridge Co., 5 ing through bridge — no recovery on

Pa. Super. Ct. 281 (where an acci- ground that bridge should have

dental change of gear on a crane been wider).

could be prevented by a safety-lock, 1T Hysell v. Swift ft Co., 78 Mo.

an inexpensive and well-known de- App. 39; s. c. 2 Mo. App. Repr. 124.
vice, but the testimony was conflict-


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§ 4248. Must Hake Reasonable Provisions against Unknown Dan-
gers. — Another wholesome doctrine is that a railroad company, in its
character of employer of labor, does not discharge its duty to its em-
ployes if it does no more than its actual knowledge of what is requi-
site suggests ; but that it must make reasonable provisions against un-
known dangers, or dangers that lie outside the range of actual experi-
ence. The doctrine thus laid down seems to have been applied with
too great severity against the railroad company. The company,
when it adopted the block system of signals, erected iron signal-
towers along its road. These towers were planned by a civil engineer
of great experience and approved by the regular engineer of the rail-
road company, who suggested additional safeguards for anchoring
the towers, which suggestions were adopted and acted upon. Never-
theless one of the towers, in an exposed place and on gravelly soil,
was uprooted by wind, injuring the man in the tower, who brought an
action for damages and recovered. The court proceeded upon the
view that these towers involved new mechanical and engineering prob-
lems, and that it was fairly a question for the jury, whether the rail-
road company had allowed a sufficient margin of safety in view of
that fact. 18 '

§ 4249. But Bound to Furnish Proper Appliances and a Safe Road-
bed. — But railway companies are bound to use toward their em-
ployes reasonable care and skill to the end of providing their em-
ployes with proper appliances and a safe roadbed. This is a primary,
absolute, and unassignable duty, under a principle already consid-
ered ; 19 and consequently a railroad company cannot justify a failure

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 60 of 165)