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Commentaries on the law of negligence in all relations online

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Mo. 380; s. c. 20 S. W. Rep. 190.
The railway company, without warn-


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

company was exonerated where it appeared that the plaintiff, while
unloading a car on a side-track, was injured by reason of a train
being run in upon the side-track and striking one of two cars be-
tween which he was working; and there was evidence that the train
was run on to the side-track in the usual way; that the usual signal,
the ringing of the engine-bell, was given of its approach; and that
the position of the plaintiff between the cars was such that no one on
the train could have seen him. 22

§ 4641. Other Injuries Received in Loading and Unloading, Not
Connected with Railway Service. — A number of cases collected on this
point present little for special consideration. In one case, a work-
man, while engaged at work under a boiler, weighing from 26,000 to
28,000 pounds, which was being moved by means of chains, but with-
out being blocked up, was killed by the breaking of the chain, and it
was held that there was evidence of negligence to go to the jury.
The deceased, having had nothing to do with the hoisting of the
boiler, was not chargeable with the duty of inquiring as to whether
the manner of supporting it was safe or not, but was entitled to rely
upon the performance of this duty by his master. 28 In like manner,
there was evidence to go to the jury where it appeared that the em-
ployer directed an inexperienced employ^ to hold one end of a plank,
the other end of which rested upon a wagon, for the purpose of un-
loading a heavy barrel by means of it. 24

lng, suddenly backed cars on a
track adjacent to that on which the
cars being unloaded stood, which
was evidence of negligence: Spotts
v. Wabash ftc. R. Co., supra.

"McGeary v. Old Colony R. Co.,
21 R. I. 76 (such testimony would
have supported a finding that the
defendant was not negligent, hence
the court would not disturb a ver-
dict for the defendant which might
have been based on such a Gliding).

B Chicago Edison Co. v. Moren,
186 111. 671; s. c. 57 N. E. Rep. 773;
aff'g s. c. 86 111. App. 162.

••Beard v. American Car Co., 63
Mo. App. 382; s. c. 2 Mo. App. Repr.
872 (barrel, when rolled, struck end
of plank when resting on wagon,
shoved It to the ground, and fell
on and broke It, thereby breaking
plaintiff's wrist). A recovery of
damages was had where an em-
ploy£ was injured, while assisting
in unloading an eight-ton girder, by

the breaking of a chain which was
worn and insufficient: Vincent v.
Alden, 62 App. Div. (N. Y.) 558;
s. c. 71 N. T. Supp. 149. Case where
a workman was injured In adjust-
ing marble slabs which had been
loaded edgewise on each side of the
bfed of a spring-wagon, and where a
recovery was denied on the ground
that both the plaintiff and the su-
perintendent under whose orders the
plaintiff acted, were guilty of neg-
ligence, and that the action of both
of them contributed to the injury:
Motey v. Pickle Marble &c. Co., 74
Fed. Rep. 155; s. c. 20 C. C. A. 366;
36 U. S. App. 682. That the use of
a plank, Instead of a skid with
hooks, on which to unload boxes
from an elevator to trucks in an
alley adjoining, is not, in itself, neg-
ligence, — see Alford v. Metcalf Bros.
& Co., 74 Mich. 369; s. c. 42 N. W.
Rep. 52.


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Article XVI. Various Unclassified Injuries to Employes in
Eailway Operation.


4543. Liability in case of miscel-

laneous injuries to railway

4544. Injuries in clearing away

railway wrecks.

4545. Circumstantial evidence of

negligence in railway op-

4546. Obstructions on transfer-

tracks at repair-shops.

Section %

4547. Operation in roundhouse.

4548. Engineer blowing off steam

and scalding fireman.

4549. Intoxicated brakeman falling

off car.

4550. Other injuries to railway em-

ployes — Company liable.

4551. Other injuries to railway em-

ployes — Company exoner-

§4648. Liability in Case of Miscellaneous Injuries to Eail-
way Employed. — A railway company has been held liable for in-
juries sustained by an employe^ caused by the breaking of a cable by
which a plow was drawn over cars to unload gravel therefrom while
the train was standing on a curve, where additional appliances should
have been employed on account of the unusual strain on the cable
when used in that position; 1 and for an injury sustained by an em-
ploye* whom it required to go into a pit to aid in turning its turn-
table, where the ties against which he was to push were not properly
fastened, and gave way, injuring him. 2 But such a company has
been exonerated from liability for an injury caused by an obstruction
upon its tracks, consisting of cars which had broken loose from a
train, — such injuries being ascribed to the negligence of fellow serv-
ants; 8 for failing to provide planks or skids upon which to slide a
box weighing two hundred and fifty pounds from one car to another
car five feet away, where two able-bodied men had been detailed to
perform the service; 4 and for injuries to a section-hand caused by
the breaking of a snubbing-stake, around which passed a rope to let
down heavy tiling, unless the defect was one which might have been
guarded against by the exercise of reasonable care and diligence. 5

Cincinnati Ac. R. Co. v. Roesch,
126 Ind. 445; s. c. 26 N. E. Rep. 171.

* Gulf 4c. R. Co. v. Winton, 7 Tex.
Civ. App. 57; s. c. 26 S. W. Rep. 770.

•Jenkins v. Richmond Ac. R.
Co., 39 S. C. 507; s. c. 18 S. E. Rep.

'Gowen v. Harley, 6 C. C. A. 190;
s. c. 56 Fed. Rep. 973; 56 Am. &
Eng. R. Cas. 238.

Nutt v. Southern Pac. R. Co., 25
Or. 291; s. c. 35 Pac. Rep. 653. That
a person who, after having left the

company's service, has rightfully
entered a pay-car to receive his pay
on the stopping of a train to
which it is attached, is entitled
to a reasonable time for the trans-
action of his business before the
train is started, and to a proper
warning of the intention to start
the train, to enable him to leave
the car in safety, — see New York
Ac. R. Co. v. Coulbourn, 69 Md.
360; s. c. 18 Md. L. J. 823; 1 L. R.
A. 541; 16 Atl. Rep. 208.


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

§ 4644. Injuries in Clearing Away Railway Wrecks. — According
to the law of Missouri, which has the peculiarity of making a fore-
man of work the vice-principal of the employer, it has been held that
where a railway employ^, assisting in moving wrecked cars, received
an injury by reason of the negligent manner and place in which
the derrick-chain was fastened to a car, the fact that the business of
clearing away wrecks is inherently dangerous, and that the usual
method was pursued, would not prevent recovery for an injury result-
ing from the negligent manner of performing the details of the work,
where the work was superintended by agents of the master. 6 In
West Virginia, a railroad company was not liable for an injury to a
section-hand, while engaged with other section-hands in clearing
away a wreck under the supervision of a section-boss and the over-
seer of the road, caused by the bottom falling out of an overturned
tender while it was being moved farther from the track, where noth-
ing in its appearance indicated that the bottom had been broken loose,
and neither the section-boss nor the supervisor could by ordinary
diligence have discovered the fracture of the bolts which held it, — the
injury being the result of an unforeseen accident. 7

§ 4645. Circumstantial Evidence of Negligence in Railway Opera-
tion. — Negligence on the part of the superintendent of a railroad,
towards a fireman who was killed by the falling of a locomotive
through a burning trestle, is established, in the absence of explanation,
by evidence that he was notified by a county road superintendent
about two and a half hours before the accident occurred that a fire
was raging on the road, but sent no one to notify the train, which
he knew was approaching, of the danger, and did not go himself in
time to reach the dangerous point until after the accident. 8

• Reed v. Missouri Ac. R. Co., 94 where the evidence tends to show
Mo. App. 371; s. c. 68 S. W. Rep. that the road-bed was out of repair,
364. and that deceased, shortly before

'Skidmore v. West Virginia Ac. the accident, was seen looking the

R. Co., 41 W. Va. 293; s. c. 23 S. train over, in the line of his duty,

E. Rep. 713. and was not seen again until he

• Bateman v. Peninsular R. Co., was found dead under circumstances
20 Wash. 133; s. c, 12 Am. & Eng. indicating that he had fallen from
R. Cas. (N. S.) 678; 54 Pac. Rep. a car after a sudden jolt sufficient
996. Findings by a jury that a to have thrown him from the car,
railroad company was negligent, and caused by cinders, coal and rubbish
that an employs, alleged to have on the track, which apparently
been killed by such negligence, was caused the derailment of the car:
not guilty of contributory negli- Union Stock Tarda Co. v. Conoyer,
gence, are sufficiently sustained, al- 41 Neb. 617; s. c. 59 N. W. Rep.
though there is no direct testimony 950; aff'g on rehearing s. c. 38 Neb.
as to how the accident occurred, 488; 56 N. W. Rep. 1081.


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§ 4546. Obstructions on Transfer-Tracks at Repair-Shops. — A rail-
way company used for transferring materials from its shops to the
cars a heavy transfer-table, consisting of a wood and iron frame,
built on wheels, and travelling on rails in a pit. Iron braces con-
nected different parts of this table a few inches from the ground,
and when it was pushed by hand some of the employes usually stood
within the angles formed by the braces and the sides of the frame.
While the plaintiff was in such position engaged in pushing the table,
his foot came in contact with a block of wood ten inches long, eight
and one-half inches wide, and four and one-half inches thick lying
alongside the rail, which forced his leg up into the angle formed by
the brace and the table, and crushed his leg. The transfer-table was
without defect in material or construction, and the coemploy6s were
competent, and guilty of no negligence in operating the machine. It
was not shown how the block came to be on the track, or that it had
been there long enough to charge the company with notice, or that
the company had actual notice. It was held that a verdict for the
railway company was properly directed, since it was not shown to
have been negligent. 9

§ 4547. Operation in Roundhouse. — While the plaintiff, a locomo-
tive-fireman, was cleaning an engine which was standing over a pit
in defendant's roundhouse, other servants of the defendant, by direc-
tion of the foreman, detached the tender, and pushed it back three
or four feet from the engine without notice to the plaintifE, thus re-
ducing the length of the "deck" by about one-half. The plaintiff, in
prosecuting his work in the engine-cab, stepped back to inspect his
work, caught his heel under the displaced apron of the tender, and
fell through the open space left by the removal of the tender, into the
pit. It was held that a finding that defendant was negligent in so
removing such tender without notice to plaintiff was justified. 10

§4548. Engineer Blowing Off Steam and Scalding Fireman. — A

railroad engineer who, without receiving any notice from his fireman,
an experienced man, of his intention to go under the engine to clean
out the ash-pan, such as the well-established usage among engineers
and firemen requires shall be given whenever the fireman goes under
the engine for any purpose, blows ofE the steam while the fireman is
so at work under it, and scalds him, is not guilty of negligence in so
doing ; and consequently the company is not liable for the injury. 11

•Murphy v. Great Northern R. Tex. Civ. App. 516; s. c. 66 S. W.

Co., 68 Minn. 526; s. c. 71 N. W. Rep. 219.

Rep. 662. "Crane v. Chicago 4c. R. Co., 93

10 Galveston Ac. R. Co. v. Quay, 27 Wis. 487; a. c. 67 N. W. Rep. 1132.


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

§ 4549. Intoxicated Brakeman Falling Off Car. — A railway com-
pany was not guilty of negligence in failing to take any measures to
prevent an intoxicated brakeman from falling off a car or being other-
wise injured as a consequence of such intoxication, where it was not
shown that the employes in charge of the train had any notice or
knowledge of his condition. 12

§ 4SS0. Other Injuries to Bailway Employes — Company Liable. —

Eailroad companies -have been held liable under the following circum-
stances : — Where the foreman in charge of a hand-car, knowing that
the men were at times in the habit of turning loose the lever on a
down-grade and standing upon the car without support, suddenly
applied the brakes on such a grade, without notice to them, and with-
out looking to see whether they were holding on to the lever ; 18 where,
in consequence of the failure to station a watchman to give notice of
danger from the caving-in of a gravel-bank, a member of the party
employed on a gravel-train was killed ; 14 where a railway yardmaster
negligently placed a car so near an adjacent track that a switchman
on a passing train was struck by it and injured; 16 where, in conse-
quence of the negligence of the servants of a railway company in
leaving open the switches of a "Y" line and spur-track, a train passed
from the main track to the <e Y" and from thence to the spur-track,
where it was derailed, killing a trainman; 16 where an engine, after
taking water, started forward more suddenly than usual, immediately
upon the cover being placed over the manhole, without any signal to
the fireman, leaving him to get down over the coal upon the tender, —
the character, quantity and location of the coal being such as to make
his position unusually perilous, — although it was a custom so to start,
under such circumstances, without warning the fireman. 17 A railroad
company permitting another company to use a section of its main
line to reach a terminal point, is liable to one of its own employes
for personal injuries from the negligence of the latter company in
running its train over such section. 18 Where men are rightfully at
work on a trestle over which a railroad is operated, with the knowledge
of the officers and persons operating the road, who know that the men

"Parker v. Winona Ac. R. Co., S3 ton, 97 Ala. 240; s. c. 12 South. Rep.

Minn. 212; 8. c. 86 N. W. Rep. 2. 88; 53 Am. & Eng. R Cas. 115.

" Kansas City Ac. R Co. v. "Reed v. Northeastern R. Co., 37

Crocker, 95 Ala. 412; s. c. 11 South. S. C. 42; s. c. 16 S. E. Rep. 289.

Rep. 262. " Knott v. Dubuque Ac. R. Co., 84

"Burlington 4c. R. Co. v. Iowa 462; s. c. 51 N. W. Rep. 57.

Crockett, 19 Neb. 138; s. c. 26 N. "Central R. Ac. Co. v. Passmore,

W. Rep. 921. 90 Ga. 203; s. c. 15 S. E. Rep. 760.

"Kansas City &c. R. Co. v. Bur-


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are thereby placed in great danger, it is the duty of the company to
operate and run its trains with care proportionate to the danger; so
that, if the company runs a train over the trestle on a foggy morning
at an unusual rate of speed, and without signals, whereby an employ^
is killed, the company is guilty of actionable negligence. 19

§4551. Other Injuries to Bailway Employes — Company Exoner-
ated.— On the other hand, railroad companies have been exonerated
from liability to their servants under the following circumstances : —
Where, a rail having broken, the section-master used diligence in
sending back to warn approaching trains, but nevertheless a freight-
train ran upon that part of the track and a train-hand was injured in
the consequent derailment; 20 where a freight-train was started with-
out warning to a brakeman and unexpectedly to him, but not suddenly
or violently, in consequence of which he was thrown from the train; 21
where the speed of a train was suddenly slackened in switching, and
without notice to a brakeman, who was thereby injured, — the infer-
ence being that this was one of the ordinary risks of the employ-
ment; 22 where an injury happened to an employ^ in consequence of
cars being moved by a switch-engine slowly in a railway-yard, without
sending a man in front of them to give notice of their approach, since
it is the duty of those employed in a railway-yard, familiar with the
continued movements of cars therein, to take reasonable precautions
against their approach ; 28 where a switch was left turned upon a track
upon which cars were left standing in the ordinary manner, and a
section-hand coming down a steep grade on a "push-car," which was
unprovided with brakes and was not intended for the transportation
of section-men, jumped off the same to avoid accident through a col-
lision, and was killed, — it appearing that the switch was not ordi-
narily used by push-cars, but that they were lifted from track to
track; and it further appearing that the switch-target was in plain
view, indicating how the switch was set. 24 Where a train stops at a

" Interstate Ac. R. Co. v. Fox, 41 with a flat-car which had by some

Kan. 715; s. c. 21 Pac. Rep. 797. means run out from a side-track

"Henry v. Lake Shore Ac. R. Co., upon the main track: Hewitt v.

49 Mich. 495. Flint Ac. R. Co., 67 Mich. 61; s. c.
n Johnston v. Canadian Ac. R. Co., 11 West. Rep. 148; 34 N. W. Rep.

50 Fed. Rep. 886. 659. Non-liability of a railway com-
"Rutledge v. Missouri Ac. R. Co., pany for injuries to a fireman

110 Mo. 812; s. c. 19 S. W. Rep. 38. through a collision with a car sud-

"Aerkfetz v. Humphreys, 145 U. denly coming on the main track

S. 418; s. c. 12 Sup. Ct. Rep. 835. from a siding, in the absence of

*York v. Kansas City Ac. R. Co., evidence that there was sufficient

117 Mo. 405; s. c. 22 S. W. Rep. tinie to allow the engineer, in the

1081. Circumstances under which exercise of ordinary care, to stop

railway company not liable for an the motor-car before reaching it:

injury to an engineer by a collision Telle v. Leavenworth Rapid Transit


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4 Thomp. Neg.] duties and liabilities of th;e master.

station where the track is at a grade, the conductor may, it has been
held, go to the station in the discharge of his duties without waiting
to see that a brakeman, who has been ordered to detach cars from the
train, sets the brakes on the remaining cars. 25

Article XVII. Injuries to Employes op Street-Eailway and
Elevated-Railway Companies.

Section Section

4553. Defective street-railway cars i warning to men at work

and appliances. * thereon.

4554. Moving street-railway tower- 4555. Elevated railroads.

wagon without notice or

§ 4SS3. Defective Street-Eailway Can and Appliances. — We have
under this head decisions to the effect: — That a street-railway com-
pany is under no obligation to a conductor to supply a trail-car with
a fender or lifeguard, to guard against injuries to him from being
thrown under the car in case he should fall between the cars while
passing from one car to the other; since the master is only bound to
see that the machinery which he does employ is reasonably safe and
suitable; and while the want of a fender may have enhanced the risk,
it did not constitute a defect in the construction rendering it unsafe
or unsuitable for the business in which it was employed; 1 that a
street-railway company owes no duty to the driver of a car to keep
a man to watch a switch leading toward a stable, during the daytime,
during which time it is kept closed and properly secured, being used
only in the morning to take out cars and in the evening to put in
cars ; 2 that a street-railway company is liable for injuries to a gripman
from defective appliances upon a car of which the wrecking-crew has
taken possession, and which he is ordered to remain on by the
"starter," to whose orders he is ordinarily subject as to stopping and

Co., 50 Kan. 455; s. c. 31 Pac. Rep. such backing is unnecessary and
1076. saves no time: Richmond Ac. R.
"Relyea v. Kansas City 4c. R. Co. v. Brown, 89 Va. 749; s. c. 17 Va.
Co., 112 Mo. 86; s. c. 18 L. R. A. L. J. 203; 17 S. E. Rep. 132. Circum-
817; 53 Am. & Eng. R. Cas. 578; stances under which failure to fur-
20 S. W. Rep. 480. Liability of a nish brakeman with a red lantern
railroad company for injuries to a was regarded as immaterial: Wad-
railroad brakeman ordered by the dington v. Newport News Ac. R.
conductor to carry goods from a Co., 14 Ky. L. Rep. 559; s. c. 20 S.
freight-car across a siding to the W. Rep. 783 (no off. rep.),
depot, where the conductor also di- * Denver Tramway Co. v. Nesblt,
rects that the train be cut in two, 22 Colo. 408; s. c. 4 Am. & Eng. R.
and a portion of it backs down Cas. (N. S.) 605; 45 Pac. Rep. 405.
against cars standing on such sid- 'Donnelly v. New York Ac. R.
ings after the brakeman has started Co., 3 App. Div. (N. T.) 408; s. c.
to carry the goods across it, where 38 N. T. Supp. 709.


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starting; since he may assume that the wrecking-crew, who are not
his fellow servants, have repaired the machinery sufficiently to en-
able him to continue on the car in safety; 8 that negligence may be
imputed to a street-railway company for furnishing its employes
with an electric car which starts with a lunge when the current is
turned on, so that its employes and passengers have to brace them-
selves carefully to avoid being hurt when it starts, — by reason of
which habit of the car the conductor is thrown against the controller
on the rear platform and injured, while watching his trolley at a
crossing. 4

§4554. Moving Street-Railway Tower-Wagon without Notice or
Warning to Men at Work thereon. — The plaintiff, an employ^ of the
defendant, a railroad-construction company, was at work on top of
a tower-wagon on the tracks of a street-railway company, over which
its cars were running, necessitating the frequent removal of the
wagon from the tracks. The wagon was moved from the track with-
out warning to the plaintiff that it was to be done, by reason of which
the plaintiff was injured. It was held that it was the duty of the
construction company to use ordinary care to prevent injury to the
plaintiff while at work on the tower-wagon by so protecting the
wagon that it would not be necessary to remove it while he was at
work, without notice or warning; since the plaintiff, from the nature
of his work, could not be expected to keep a lookout for movements
of the tower-wagon. 5

§4555. Elevated Railroads. — An elevated street-railroad com-
pany is not liable for injuries resulting in the death of a workman
employed on the track, merely because it allowed trains to closely
follow one another, or because they were not made to follow one an-
other at definite times or regular intervals, — such a method of operat-
ing the road being impracticable. 8

'West Chicago St. R. Co. v. years before, and that he had ver-

Dwyer, 67 111. App. 440. bally reported the occurrence to de-

'Murdock v. Oakland Ac. R. Co., fendant's predecessor, the question

128 Cal. 22; s. c. 60 Pac. Rep. 469. of defendant's negligence was for

Where a competent civil engineer the jury: Coughlin v. Brooklyn

testified that the defendant's street- Heights R. Co., 59 App. Div. (N.

railway track, at the point where a Y.) 126; s. c. 68 N. Y. Supp. 1105.

conductor was thrown from his car 'North American Ry. Const. Co.

and injured, for which suit was v. Patry, 10 Kan. App. 55; s. c. 61

brought, was dangerously out of Pac. Rep. 871.

alignment, and three former con- *Bruen v. Uhlmann, 44 App. Div.

ductors each testified that he had (N. Y.) 620; s. c. 60 N. Y. Supp.

been thrown from his car at the 222; denying rehearing of s. c. 30

same point between one and two App. Div. (N. Y.) 553; 51 N. Y.


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

Supp. 958. A platform two and sumed the risk, there being "noth-

one-half feet wide, without a guard- ing latent, hidden or concealed"

rail, along the tracks of an elevated about the platform, "and nothing

railroad, over which the company's which was not equally apparent to

employees are compelled to pass, con- the servant as to the master."

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 82 of 165)