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Commentaries on the law of negligence in all relations online

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stitutes a reasonably safe place in There was no proof that during the

which to work, so as to preclude a ten years of plaintiff's employment

recovery for injuries by an employs the platform, which was similar to

who falls from such platform to the all the others of the kind on the

street below: Nugent v. Brooklyn road, had ever proved insufficient

&c. R. Co., 64 App. Div. (N. T.) or dangerous. The accident hap-

351; s. c. 72 N. T. Supp. 67. This pened in broad daylight: Nugent v.

case was decided, perhaps, more on Brooklyn Ac. R. Co., supra.
the theory that plaintiff had as-


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Abt. I. Under Employers' Acts, §§ 4557-4572.

Art. II. Under Workmen's Compensation Acts, §§ 4575-4587.

Abt. III. Under Various Factory Acts, §§ 4590-4597.

Abt. IV. Under Statutes Eegulating.the Employment of Children,

§§ 4599-4601.
Abt. V. Under Various Other Statutes, §§ 4603-4606. *

Abticlb I. Under Employees' Liability Acts.

Section Section

4557. Introductory. 4566. No recovery unless defect is

4558. Action under statute or at due to negligeuce of master

common law. or his representative.

4559. "Ways, works, machinery, or 4567. "Locomotive-engine, car, or

plant," what are. train/' what is.

4560. "Ways," what are. 4568. "Railroad," what is.

4561. "Works," what are. 4569. Volunteers— Workmen using

4562. "Defects" in ways, works, ma- machinery or ways without

chinery, or plant, what con- necessity.

stitute. 4570. Servants employed by inde-

4563. Temporary ways, works, etc., pendent contractors in a

not within the meaning of mine are not "workmen" in

these statutes. the employ of the owners.

4564. Tempor&ry or transient condi- 4571. Notice of time, place, and

tions. cause of injury.

4565. What repairs are sufficient. 4572. A question of pleading.

§ 4657. Introductory. — Special statutes have been enacted in vari-
ous jurisdictions, 1 designed either to define the liability of employers,
or to extend greater protection to employ6s. These statutes have
been, in many cases, construed so narrowly by the judges as to defeat,
in a measure, the protection to employes which they were intended to
give. We now propose to indicate briefly some of the ways in which
the various Employers' Liability Acts have been applied by the courts.

1 See post, S 5278, where a list of their effect on the so-called "fellow-
some of these statutes is given, and servant doctrine" considered.



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

§ 4558. Action under Statute or at Common Law. — The fact that
an Employers' Liability Act authorizes a recovery by an injured em-
ploy6 for the negligence of his master, is not, it is held, a bar to a re-
covery at common law, in those cases within the terms of the statute,
where a recovery at common law might have been had before the pas-
sage of the statute ; but in such a case the injured employ^ may still
sue under the same conditions, and recover damages to the same extent,
as if the statute had not been passed; the theory being that such
statutes do not restrict, but merely enlarge, the common-law rights
of employes. 2 Thus, an action at common law. might be maintained
for injuries resulting from the negligence of a head stevedore, where
the plaintiff predicated his action on the fact that the head stevedore
was incompetent, and unfit to perform his duties as such and to direct
the work of loading a vessel, and that the employer knew of his in-
competency and unfitness; and this although a recovery might have
been had under the statute for the negligence of a person "engaged
in superintendence." 8

§ 4509. > "Ways, Works, Machinery, or Plant/' What Are.— These
statutes allow a recovery to an employ6 for injuries resulting from
defects in the ways, works, machinery, or plant connected with or
used in the business of the employer, due to the negligence of the
master or his representative. The statutes are evidently drawn with
a solicitude to cover every species of property or appliance in respect
to which a servant is required to do labor, but the courts have, in
many instances, greatly curtailed their operation. A good example
of the spirit in which these statutes should be construed is found in
a Massachusetts case, where a stone-cutter employed in a stone-yard
was injured by reason of a defect in a derrick, selected by the em-
ployer and erected by other workmen for temporary use in removing
stones from cars to where the stone-cutters could work on them, but
which had been in use for four weeks. The court held that the ques-
tion whether the derrick was a part of the ways, works, or machinery
of the yard should have been submitted to a jury, since, for the time
being, and with respect to stone-cutters working near it, the derrick
was a piece of machinery, part of the fitting up of the stone-yard,
rather than an appliance to be put together and set up and moved
from place to place by workmen using it. 4 So, the following objects

a Ryalls v. Mechanics' Mills, 150 "Clark v. Merchants Ac. Transp.

Mass. 190; s. c. 5 L. R. A. 667; 7 Co., 151 Mass. 352; s. c. 24 N. E.

Rail, ft Corp. L. J. 73; 41 Alb. L. J. Rep. 49.

113; 22 N. E. Rep. 766; Clark v. *McMahon v. McHale, 174 Mass.

Merchants Ac. Transp. Co., 151 320; s. c. 54 N. E. Rep. 854.
Mass. 352; s. c. 24 N. E. Rep. 49.


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have been held to come within the terms of the statute: — Loaded
freight-cars, even though owned by other railroad companies, since
the company receiving them is not bound to use them 1 in its train if
on inspection they are found to be unsafe; 8 one of several trucks in
constant use by a railroad company as a part of the appliances of its
•repair-shop, the truck consisting of axles, wheels, and a frame, all
fastened together and fitted to the tracks; 8 the supply-pipe of a water-
tank, extending over or near a railroad-track so as to knock a brake-
man off the top of a freight-car. 7 On the other hand, the employer
was not liable as for a defect in the condition of his "ways, works, or
machinery," where a board in a pile of lumber in a lumber dealer's
yard sank under an employ6V weight and injured him; 8 nor where
an employ^ of a railroad company, while attempting to align the
track on a bridge by means of a steel bar, was thrown from the bridge
and injured by reason of a defect in the bar, — on the theory that the
bar, being disconnected from any other mechanical appliances, and
operated by muscular strength directly applied to it, was not "ma-
chinery "* The English statute has been held not to include within
the term "ways, works, machinery, or plant," ways or works in process
of construction, but only ways or works which are completed. 10 In
Massachusetts the point was raised, but not decided, as to whether
an action would f lie for the death of an employ^ caused by the caving
in of a sewer-trench, on the ground of a defect in the condition of the
"ways, works, or machinery." 11

§4660. "Ways," What Arc. — In an action under the English
statute it appeared that a workman in a large workshop, while passing
from one part of the shop to another in the course of his business,
fell into a catch-pit in the floor, which was generally covered with a
lid, but which had been uncovered for a temporary purpose. The
court held that the floor of the shop where the workman was passing
watf a "way" within the meaning of the statute, though it was not
marked out or defined, or even though not habitually used as such, — a
"way," so far as this action was concerned, beiijg defined as "the

"Bowers v. Connecticut River R. "Campbell v. Dearborn, 175 Mass.

Co., 162 Mass. 312; s. c. 38 N. E. 183; s. c. 55 N. E. Rep. 1042.

Rep. 508 (rule since established by "Clements v. Alabama &c. R. Co.,

statute: Mass. Stat. 1893, ch. 359). 127 Ala. 166; 8. c. 28 South. Rep.

• Gunn v. New York 4c. R. Co., 171 • 643.

Mass. 417; s. c. 50 N. B. Rep. 1031 "Howe v. Pinch, 17 Q. B. Div.

(locomotive placed on truck fell and 187.

killed employ^ — question for jury u Conroy v. Clinton, 158 Mass. 318.

whether due to defects in truck). See also, Connolly v. Waltham, 156

7 East Tennessee Ac. R. Co. v. Mass. 368.
Thompson, 94 Ala. 636; s. c. 10
South. Rep. 280.

VOL. 4 THOMP . NEG . —38 593

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

course which a workman would in ordinary circumstances take in
order to go from one part of a shop, where a part of the business is
done, to another part where business is done, when the business of the
employer requires him to do so." 12 It has been held that a public
street in a defective condition, used by an employer in connection
with his business, is not a "way" used in his business, within the
meaning of the Ontario statute. 18 So, under the Massachusetts stat-
ute, a railroad-track owned, maintained and repaired by a manufac-
turing company, and used by a railroad company only under a license
or invitation to deliver freight under a contract, was held not to be a
part of the railroad company's "ways." 14

§4661. "Works," What Arc. — In an action brought under the
English statute it appeared that the defendant, a builder, was engaged
in pulling down an old house. After the roof had been removed and
part of the walls pulled down, he ordered the plaintiff, a laborer in
his employ, to remove some of the debris of the roof which lay on the
ground near one of the walls which was still, left standing. While
the plaintiff was carrying out the order the wall fell and injured him,
owing to the neglect of the defendant to have it shored up. It was
held that the dangerous condition of the wall was a "defect in the
condition of the works connected with or used in the business" of the
defendant within the meaning of the statute; since, the business of
the defendant being to pull down walls as well as to build them up,
they were just as much works connected with his business in one case
as in the other. 15

§4562. "Defects" in Ways, Works,. Machinery or Plant, What
Constitute. — It has been held that the absence of a guard to a pro-
jecting screw in a revolving spindle, used to fasten a drilling-tool
into the spindle, is a "defect" in the condition of the machinery
within the meaning of the Ontario statute. 18 So, the failure to have

"Willetts v. Watt, [1892] 2 Q. B. lie against the owner of premises

92 (recovery denied, however, be- for a defect in a wall in process of

cause absence of cover was not a construction by a builder, under

defect in the way, but was due this clause of the statute) ; and dis-

merely to negligent misuser). approved in Lynch v. Allyn, 160

u Stride v. Diamond Glass Co., 26 Mass. 248, where a bank of earth

Ont Rep. 270 (under Rev. Stat fell when undermined, on the

Ont., ch. 160). ground that the statute applies only

"Engel v. New York Ac. R. Co., to ways or works of a permanent

160 Mass. 260; s. c. 22 L. R. A. 283; character.

35 N. B. Rep. 547. "O'Connor v. Hamilton Bridge

"Brannigan v. Robinson, [1892] Co., 21 Ont App. 596; afl'g s. c. 25

1 Q. B. 344; distinguishing Howe v. Ont. Rep. 12 (under Rev. Stat. Ont,

Finch, 17 Q. B. Div. 187 (where it ch. 160— holding also that it is a

was held that an action would not violation of the Ontario Factories


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a platform in an upraise leading into a tunnel so fixed as to prevent
drills thrown down the upraise from bounding into the tunnel, by
reason of which an employ^ was injured while passing the mouth of
the upraise, constituted a "defect" in the condition of the ways or
works. 17 In another case the absence of a guard to a circular saw,
provided by the owner of a saw-mill, due to its improper removal by
the sawyer for his own purpose, was held to be a "defect" in the
condition of the machinery within the meaning of the English statute;
but, there being no evidence that it had been absent so long that the
employer should have known of it personally, it was further held that
he would not be liable for injuries sustained by another workman who
fell against the saw unless it should be found that the sawyer who
removed the guard was the representative of the master to see that it
was in place. 18 Buirthe fact that several dynamite cartridges used
in blasting rock remained undischarged after a blast, and subsequently
exploded and injured a workman who was trying to withdraw them,
did not show that the way, works, or machinery of the employer were
defective, — their presence being merely a condition of the material
on which the employes were working, caused by their work, and
necessarily incident to the business in which they were engaged. 10
Where a railway employ^ was injured in his eye, in consequence of a
scale of iron flying from the rail of the track when struck with a
hammer, in which hammer there was alleged to be a defect which •
caused the scale to fly, it was held that this was not a "defect" in the
works or machinery within the meaning of the Alabama statute. 20
Another construction of the same statute is to the effect that the '
failure to provide a temporary scaffold or platform around a "bleeder"
used for the escape of gas above an iron-furnace, on which the master
mechanic could stand to repair the bleeder, did not constitute a
"defect" in the ways, works, machinery, or plant, where such a
scaffold was sometimes used in such a case, but repairs were also made
by means of a ladder. 21 It is said that an unsuitableness of "ways,
works, or machinery" for the work they are intended for, and actu-
ally done by means thereof, is a "def ect" within the meaning of these
statutes, although they are perfect of their kind and in good repair

Act, as a defect in the "moving part M Georgia Ac. R. Co. v. Brooks, 84

of the machinery"). Ala. 138; s. c. 4 South. Rep. 289.

" Pender v. War Eagle Consol. So under the Georgia Code, § 3033:

Min. Ac. Co., 7 Brit Col. L. Rep. Georgia R. Ac. Co. v. Nelms, 83 Ga.

162. 70; s. c. 9 S. E. Rep. 1049; 29 Cent.

"Tate v. Latham, [1897] 1 Q. B. L. J. 352; 39 Am. 6 Eng. R. Cas.

502, 509; s. c. 75 Law T. Rep. 694; 355.

66 L. J. Q. B. (N. S.)~349; 76 Law * Birmingham Furnace Ac. Co. v.

T. Rep. 336. Gross, 97 Ala. 220; s. c. 12 South.

10 Welch v. Grace, 167 Mass. 590. Rep. 36.


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

and suitable for other kinds of work. Thus, where a pump-manufac-
turing company used for moving the pumps a four-wheeled truck,
guided by means of a short iron handle attached to the front axle,
which, with ordinary loads, was sufficient to guide the truck ; but on
one occasion it was used for moving an extraordinarily heavy pump,
and in attempting to pass from one room to another one of the front
wheels passed over the door-sill, while the other wheel stuck, and the
jolt caused the axle to turn so that one wheel got under the wagon,
causing the pump to fall off and injure the plaintiff, who was assist-
ing, the handle being too short to hold the wheels straight with such
a heavy load on the truck, — it was held that the company was liable. 22
On the same principle it is held that a machine, though perfect within
itself, is, if applied to some purpose for which it is unfitted, "de-
fective" within the meaning of such a statute, 28 — as where a screw
conveyor, suitable for the purpose for which it was first used, that of
conveying cement from one point in a factory to another, was after-
wards used as a "mixer" by taking off a lid covering it and emptying
dry cement into it from sacks; and an employ^, while engaged at
such work, was injured by reason of a sack catching on the screw
and pulling his hand into the machine. 24 But a set-screw on a ma-
chine does not of itself constitute a "defect" in the "ways, works, or
machinery," where it is a common device for the purpose for which
it is used."

§ 4563. Temporary Ways, Works, etc., Not within the Meaning
of these Statutes. — These statutes, it has been held, do not apply to
the case of temporary structures, such as stagings, scaffoldings, etc.,
used in the construction or reparation of a building, 26 or in the
painting of a building. 27 It has been held that the liability of a
bank of earth, upon which laborers employed by a person are at work,
to fall when undermined if not shored up, is not a defect in the con-

"Geloneck v. Dean Steam Pump Mass. 226; s. c. 46 N. E. Rep. 703
Co., 165 Mass. 202; s. c. 43 N. E. (staging erected by workmen slat-
Rep. 85. ing roof) ; Morris v. Walworth' Man.

"Ont. Rev. Stat., cb. 160. Co., 181 Mass. 326; s. c. 63 N. E.

* Wilson v. Owen Sound Ac. Co., Rep. 910 (planks laid for temporary

27 Ont. App. 328. use in building in course of erec-

88 Donahue v. Washburn Ac. Man. tion); Fergerson v. Gait Public

Co., 169 Mass. 574; s. c. 48 N. E. School, 27 Ont. Rep. 480; 8. c. 20

Rep. 842. Occ. N. 307 (temporary gangway

M Regan v. Donovan, 159 Mass. 1; used by mortar carrier),

s. c. 33 N. E. Rep. 702 (movable "Adasken v. Gilbert, 165 Mass.

staging used in repairing building) ; 443; s. c. 43 N. E. Rep. 199; McKay

Burns v. Washburn, 160 Mass. 457; v. Hand, 168 Mass. 270; s. c. 47 N.

s. c. 36 N. E. Rep. 199 (staging for E. Rep. 104 (two ladders selected

use of masons) ; Carroll v. Willcutt, from suitable supply and fastened

163 Mass. 221 (similar state of together by painters),
facts); Reynolds v. Barnard, 168


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dition of the "ways, works, or machinery" of the employer, within
the meaning of the Massachusetts statute, where the work on the
bank consists simply of levelling it for the purpose of grading the
land of a third person, — the statute being held to apply only to ways
and works of a permanent character. 28 But where the structure or
appliance is of a gt/a#i-permanent character, it may properly be found
to be a part of the employer's "ways, works, or machinery," — as
where a temporary derrick, erected by workmen in a stone-yard for
the purpose of unloading stones from cars and placing them in posi-
tion to be worked on by the stone-cutters, had been in use for that
purpose and in one place for four weeks. 29 So, a temporary staging
erected by the side of a woodpile to enable the workmen to place wood
thereon and pile it higher, and which is taken down and put up from
time to time in different places, and is intended to be used from four
days to a week at a time in each place, is a part of the owner's "ways,
works, and machinery" while in use at a particular place, within the
meaning of the Massachusetts statute. 90 The conclusion is plain that
the staging and ladders in a building in course of erection were not a
part of the "ways" or "works" of a contractor for the plumbing in
the building, where he neither constructed, managed, nor controlled
such ladders and stagings, and .would have had no power to remedy a
defect in them had he discovered one. 81

§ 4564. Temporary or Transient Conditions. — These statutes have
been held not to apply in cases where v the dangerous or defective
condition of the ways, works, or machinery is temporary or transient,
or incident to the prosecution of the work. Thus, the master was
not liable under this clause of the statute where a bank of earth,
which was being levelled for the purpose of grading the land of a
third person, fell and injured one of the laborers," by reason of not
* being shored up; 82 nor where several dynamite cartridges used in
blasting rock remained unexploded after a blast, and subsequently ex-
ploded and injured a workman who was trying to withdraw them; 88
nor where a board in a pile of lumber in a lumber dealer's yard sank
under the weight of an employ^ and injured him; 84 nor where a

"Lynch v. Allyn, 160 Mass. 248. "Riley v. Tucker, 179 Mass. 190;

The court disapprove the case of s. c. 60 N. E. Rep. 484.

Brannigan v. Robinson, [1892] 1 Q. "Lynch v. Allyn, 160 Mass. 248.

B. 344, where walls which a builder Compare Conroy v. Clinton, 158

was engaged in tearing down were Mass. 318; s. c. 33 N. B. Rep. 525

held to be a part of his "works." (sewer-trench).

w McMahon v. McHale, 174 MaBS. ■» Welch v. Grace, 167 Mass. 590.

320; s. c. 54 N. E. Rep. 854. "Campbell v. Dearborn, 175 Mass.

"Prendible v. Connecticut River 183; s. c. 55 N. E. Rep. 1042.
Man. Co., 160 Mass. 131; s. c. 35
N. E. Rep. 675.


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4 Thomp. Neg.] duties and liabilities of th£ master.

ledge-stone was allowed to remain on the edge of a staging erected for
the purpose of building a wall, and it fell off and injured a workman
on another staging. 85

§ 4665. What Repairs are Sufficient. — It has been held that the
law does not impose upon a master, upon his discovering a defect in
his ways, works, or machinery, the duty of putting the same in per-
fect condition for working-purposes, but he discharges the duty rest-
ing on him if he removes the scfarce of danger to employes, and this
may be done by a temporary device, as well as by permanent repairs. 86

§ 4566. Ho Recovery unless Defect is Due to Negligence of Master
or his Representatives. — Here, as in other cases, in order to a recov-
ery, it must )>e shown that the defective condition of the ways, works,
or machinery was due to the Negligence of the master or his repre-
sentative, either in causing such defect or in failing to discover and
remedy it. Thus, where a switchman was injured while operating
a switch, which he alleged was defective, but he failed to show that
the railway company had been negligent in regard to its condition, he
could not recover. 87 The Massachusetts statute has been held not
to give a right of action against the employer for the negligence of a
fellow servant in handling or using a machine, tool, or appliance,

"Carroll v. Willcutt, 163 Mass.

M Willey v. Boston Electric Light
Co., 168 Mass. 40; s. c. 37 L. R. A.
723; 46 N. E. Rep. 395. In this
case It appeared that an electrical
lineman, finding that electricity
was leaking at a certain pole from
defective insulation, which could
not be repaired at that time, merely
shut the current off from that pole
by a switch on the pole, after the
circuit on which the pole was had
been cut out at the power-house,
after which the current was again
admitted to the circuit. A night
employs, noticing that the lamp was
dark, climbed up and turned on the
current, as his duty required him
to do in such cases, he not -knowing
of any trouble, and was killed.
After the accident the pole was cut
out by cutting the wires and join-
ing them above the cut-off box. It
was held to be a question for a jury
whether the master had exercised
the proper degree of diligence in
the method he had first adopted of


cutting out the pole: Willey v.
Boston Electric Light Co., supra.

"Mary Lee Coal Ac. Co. v. Cham-
bliss, 97 Ala. 171; s. c. 53 Am. ft
Eng. R. Cas. 254; 11 South. Rep.
897. A cause of action under the
Colorado act of 1877, permitting re-
covery from an employer for injur-
ies received by an employ^ result-
ing in his death, when due to the
negligence of the master or certain
of his servants, is shown by evi-
dence that the employer was negli-
gent in failing to exercise due care
to provide safe appliances for the
employe's use while in his employ-
ment, resulting in his death, or that
his death was due to the negligence
of the manager of the employer,
when his manager was acting as
vice-principal: Colorado Milling ftc.
Co. v. Mitchell, 26 Colo. 284; s. c.
58 Pac. Rep. 28; aff'g s. c. 12 Colo.
App. 277; 55 Pac. Rep. 736 (failure
of manager to use due care to pro-
vide safe and proper appliance for
raising a smokestack, and his negli-
gence in superintending the use-

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which was in itself in a proper condition; 88 and this is in accordance
with the principles of the common law. 88 It is also clear of doubt
that an action cannot be sustained, under special statutes, for fur-
nishing "decayed, rotten, unsafe and unsuitable planks or timbers/'
etc., where the emplo} r er furnished an abundance of timbers to be used
by the employes, who were experienced in their line of employment,
and the employ^ receiving an injury selected a defective instead of a

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 83 of 165)