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Commentaries on the law of negligence in all relations online

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sound timber. 40

§ 4567. "Locomotive-Engine, Car, or Train/' What Is. — Three
questions arise under the clause of these statutes giving a right of
action for injuries caused by the negligence of "any person in charge
or control of any locomotive-engine, car, or train upon a railroad" :
1. Whether the servant whose negligence caused the injuries was a
person "in charge or control 5 ' within the meaning of the statute,
which will be considered in another connection; 41 2. Whether the
motive power of which he was in charge was a "locomotive-engine/ ,
or, if it was, whether it and the cars attached to it, or, in many cases,
cars detached from it, constituted a "train" within the meaning of the
statute ; 3. Whether the track upon which such locomotivenengine or
train ran was a "railroad" within the meaning of the statute. , Upon
the second question we find decisions to the effect: — That an engine
and car constitute a "train," where a car-cleaner is at work in the car,
and a locomotive is coupled to it to remove it to another track, and a
brakeman stands on the front platform while it is being pushed; 42
that a locomotive and one or more cars connected together and run
upon a railroad constitute a "train"; 48 that cars detached from the
train while the engineer takes another car to a different place continue
to be a part of the train, so as to render the company liable for in-
juries caused by one of such cars breaking away and running down
an incline because improperly secured or "scotched" by the person in
charge of the cars; 44 that a number of cars coupled together, forming
one connected whole, and moving from one point to another on a
railroad in the ordinary course of traffic, set in motion by a locomo-

* Ashley v. Hart, 147 Mass. 573; ligence of either the brakeman or

Allen v. Smith Iron Co., 160 Mass. the engineer, either of whom was

557; s. c. 36 N. E. Rep. 581. "in charge" of the train so as to

"Ante, §§ 3760, 3999, et seq.; render the company liable).

post, § 4852. ** Dacey v. Old Colony R. Co., 153

"Conroy v. Clinton, 158 Mass. Mass. 112; s. c. 26 N. E. Rep. 437.

318; s. c. 33 N. E. Rep. 525. "McCord v. Cammell, [1896] A.

"Post, § 5285. C. 57; s. c. 65 L. J. Q. B. (N. S.)

«Shea v. New York Ac. R. Co., 202; 73 Law T. Rep. 634 (the court

173 Mass. 177; s. c. 6 Am. Neg. Rep. further holding that either the en-

82; 53 N. E. Rep. 396 (collision with gineer, or the fireman left with the

cars on the other track, due to neg- cars, was "in charge" of the cars).


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

tive which has just been detached, constitute a "train"; 48 that a
hand-car is a "car." 4 * It has been held that, under the Massachu-
setts statute, an electric car on a street-railroad, operated by elec-
tricity in the usual manner, is not a "locomotive-engine or train upon
a railroad" — the theory of the court being that the Legislature un-
doubtedly intended these worda to mean a railroad and locomotive-
engines and trains operated and run, or at least originally intended to
be operated and run, in some manner and to some extent by steam. 47

§4668. "Railroad," What Is. — Upon the question when- a car,
train, or locomotive is "upon a railroad" within the meaning of these
statutes, it has been held, on the one hand, that a short railway-track,
intended for temporary use by a city in transporting gravel, is a "rail-
road" as between the city and its employes. 48 On the other hand, it
has been held that a locomotive stalled in a roundhouse for repairs is
not "upon a railroad," so as to render the company liable to a ma-
chinist making repairs on the locomotive, cause<J by the engineer's
"blowing down" the engine into the ash-pit in which such machinist
was at work; 49 and that the tracks of a street-railroad operated by
electricity in the usual manner are not a "railroad." 50

§ 4669. Volunteers— Workman Using Machinery or Ways without
Necessity. — It has been held that, in order to recover for injuries
caused by defective ways, works or machinery, the plaintiff must show
that it was reasonably and practicably necessary for him to use such
ways, works or machinery. Thus, where the plaintiff used a "skip," or
ore-hoist, to ascend a mine, and it appeared that there was another
and safer passageway by means of ladders, and that he knew the
safety-appliances had been removed from the "skip," it was held that
he could not recover. 81

•* Caron v. Boston Ac. R. Co., 164 under the Ontario statute — Ont. Rev.

Mass. 523; s. c. 42 N. E. Rep. 112. Stat, ch. 160).

It is to be noticed that the Massa- "Coughlan v. Cambridge, 166

chusetts statute now defines a train Mass. 268; s. c. 44 N. E. Rep. 218.

as "one or more cars which are in * Perry v. Old Colony R. Co., 164

motion, whether attached to an en* Mass. 296; s. c. 41 N. E. Rep. 289.

gine or not." "Fallon v. West End St R. Co.,

48 Kansas City Ac. R. Co. v. 171 Mass. 249; s. c. 50 N. E. Rep.

Crocker, 95 Ala. 412; s. c. 11 South. 536.

Rep. 262; Richmond Ac. R. Co. v. n Da vies v. LeRoi Min. Ac. Co., 7

Hammond, 93 Ala. 181; s. c. 9 South. Brit. Col. L. Rep. 6. In another

Rep. 577. case it appeared that the plaintiff,

47 Fallon v. West End St R. Co., a workman, in going to his work

171 Mass. 249; s. c. 50 N. E. Rep. in the defendant's factory, passed

536. Compare Snell v. Toronto R. as usual through a long passage,

Co., 27 Ont App. 151; s. c.,20 Occ. twelve feet wide, well lighted, and

N. 224 (where the contrary was held with which he was well acquainted;


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. [2d Ed.

' § 4570. Servants Employed by Independent Contractor in a Mine
are Hot "Workmen" in the Employ of the Owners. — It has been held
that the control given to a mine-owner by the English Coal Mines
Regulation Act of 1887, and rules thereunder, over persons working in
the mine, for the purpose of carrying on the mining operations with-
out danger, does not make "sinkers" employed by an independent con-
tractor, to sink a shaft in a coal mine, "workmen" in the employ of the
owners, within the meaning of the English Employers' Liability Act,
so as to render the owners liable for injuries to the "sinkers." 52

§4571. Notice of Time, Place, and Cause of Injury. — The Em-
ployers' Liability Act of Massachusetts provides that no action for in-
jury or death under the act shall be maintained unless notice of the
time, place, and cause of the injury is given to the employer within
thirty days from the accident. It has been held that such a notice is
not defective because it alleges different causes for the injury, where
each cause is adequately stated. 58 And where an employ6 was injured
by the falling of a bank of earth, owing to the negligence of the em-
ployer's superintendent, it was held that a notice setting forth the
cause of ,the injury to be "the falling of a bank of earth," was suffi-

but Instead of going straight to his
work he turned out of his way to
look at some repairs that were be-
ing made on an elevator on the op-
posite side of the passage from
where he should have been and
from where he usually walked, and
fell into the unguarded hole. It was
held that, as toward such employe,
there was no defect in the condi-
tion of the "way" within the mean-
ing of the Ontario statute, for which
the defendant was responsible:
Headford v. McClary Man. Co., 21
Ont. App. 164; aff'g s. c. 23 Ont.
Rep. 335 (where nonsuit was
granted on ground of contributory

"Marrow v. Plimby Ac. Co.,
[1898] 2 Q. B. 588; s. c. 67 L. J. Q.
B. (N. S.) 976.

u Coughlan v. Cambridge, 166
Mass. 268; s. c. 44 N. E. Rep. 218
(notice alleged injury was due to
negligence of persons for whose
tfegligence employer was responsi-
ble, and also due to defects in train,
track, and switch). Where the dec-
laration in an action under the Mas-
sachusetts statute for the death of
an employe contained two' counts, —
one under $ 1, cl. 1, of the statute,

for defects in appliances; the other
under § 1, cl. 2, for negligence of
a person exercising superintend-
ence, and the evidence showed that
there was no defect in the appli-
ance, — a notice to the employer of
the Injury, describing a defect in
the ways, works and machinery,
and charging negligence on the part
of a person entrusted with and ex-
ercising superintendence, in the lan-
guage of clauses 1 and 2, and par-
ticularly stating that the deceased
was killed by a stone being precipi-
tated upon him from the defend-
ant's derrick, as the result of the
negligence of the defendant, and
the negligence of some person for
whose negligence he was liable, suf-
ficiently described the cause of in-
jury as applied to the second count;
the evidence showing that the su-
perintendent negligently ordered
the stone to be raised before it was
properly prepared, and that no
warning was given to the deceased
that the stone was to be raised ; and
the notice substantially stating this:
Beauregard v. Webb Granite &c. Co.,
160 Mass. 201; s. c. 35 N. E. Rep.


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

cient although it did not refer to the superintendent or his conduct,
since it is not necessary to state the cause of the cause ol an injury. 5 *
It has been held that notice of an injury to a brakeman, given to a
freight-agent, who forwarded it to the attorney of his employer,
which had made no objection to the receipt of such notices by the
freight-agent for five years, was a sufficient compliance with the
statute, requiring notice to be "given to the employer." 88

§4572. A Question of Pleading. — It has been held, under the
clause of the Alabama statute authorizing a recovery for injuries to
an employ^ caused by any defect in the ways, works, or machinery of
the employer, that a complaint by a section-hand, ascribing his in-
juries to defective appliances for controlling the speed of a push-car,
which collided with the plaintiflE, knocking him from a high trestle,
etc., stated a cause of action. 56

••Lynch v. Allyn, 160 Mass. 248;
s. c. 35 N. E. Rep. 550.

w De Forge v. New York Ac. R.
Co., 178 Mass. 59; s. c. 59 N. E. Rep.
669 (so held without deciding
whether, in general, notice to
freight-agent or attorney would be
notice to employer). A notice to
an employer of the time, place and
cause of personal Injuries sustained
by an employs, signed "C. ft P., at-
torneys for C. D.," purports to be
signed "in behalf" of C. D., in ac-
cordance with a statute, requiring
the notice to be signed by the per-
son injured or "some one in his be-
half," — the words "attorneys for C.
D." not being merely descriptio per-
sonarum: Dolan v. Alley, 153 Mass.
380; s. c. 26 N. E. Rep. 989. It has
been held that the notice required
by the Massachusetts statute is a
condition precedent to the right of
action for an injury, and is not
within the meaning of the phrase
"lawful processes in any action or
proceeding," which refers to process
emanating from a court, or by the
authority of a court Hence, such
a notice, served by an employs of
a foreign corporation upon the Com-
missioner of Corporations, who
sends a copy of it, within thirty
days of the happening of the acci-

dent, to the foreign corporation,
which has made him its attorney
upon whom all lawful processes in
any action or proceeding may be
served, as provided by Stat. 1884,
ch. 330, is not notice to the corpora-
tion within the meaning of the Em-
ployers' Liability Act. And the act
of the Commissioner in sending the
notice is not done as the agent of
either party, but as a public officer,
acting in the discharge of a sup-
posed statutory duty; and for this
reason the plaintiff cannot ratify
the action of the Commissioner as
his own or hold the defendant as
though it were its act: Healey v.
George F. Blake Man. Co., 180 Mass.
270; s. c. 62 N. E. Rep. 270. In an
action under the Ontario statute it
is not sufficient to state in the de-
fense that notice of the accident
has not been given, and that the
defendants intend to rely on that
defense: formal notice of the objec-
tion must be given seven days be-
fore the hearing of the action, in
accordance with the provisions of
§ 14: Cavanagh v. Park, 23 Ont.
App. 715; Wilson v. Owen Sound
Ac. Co., 27 Ont. App. 328.

■•Central &c. R. Co. v. Lamb, 124
Ala.' 172; s. c. 26 South. Rep. 969.


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Abtiole Ii. Under Workmen's Compensation Acts.

Section Section

4575. Accident "arising out of and 4582. Employment "on, in, or

in the course of the em- about" a factory,

ployment 4583. "Factory," what constitutes.

4576. Workman unloading ship to 4*584. Employment "on, in, or

a dock. about" a dock.

4577. Volunteers. 4585. Employment on buildings ex-

4578. Workmen using forbidden ceeding thirty feet in

route. height

4579. Workmen going to work along 4586. "Construction" or "repair,"

railroad-track. what constitutes.

4580. "On, in, or about," meaning 4587. Right to weekly compensa-

of. sation as affected by wage-

4581. Employment "on, in, or earning capacity.

about" an engineering

§ 4575. Accident "Arising Out of and in the Course of" the Em-
ployment. — Some of the acts called "Workmen's Compensation Acts"
are substantially the same in their operation as the Employers' Liabil-
ity Acts, 1 but the Workmen's Compensation Acts to which we wish
to be understood as referring in this connection, are the English
Workmen's Compensation Act, 1897, and those acts modeled after it, f
allowing a recovery to a workman who is injured by an accident "aris-
ing out of and in the course of his employment," without reference to
whether such accident is caused by negligence or not. The determina-
tion of whether an accident does so arise is complicated in England
by the fact that the act must be construed in connection with the
Factory Acts, and the Factory and Workshop Acts.

§ 4576. Workman Unloading Ship to a Dock.— Thus, section 1 of
the English Workmen's Compensation Act provides that the act shall
apply to employment in a "factory." Section 7, subsection 2, of the
same act, provides that "factory" shall include, among other things,
"any quay, to which any provision of the Factory Acts is applied by
the Factory and Workshop Act, 1895"; and section 23, subsection 1,
of the Factory and Workshop Act applies certain provisions of the
Factory Acts to "every * * * quay, * * * and, so far as
relates to the process of loading, or unloading, therefrom or thereto,
all machinery and plant used in that process." So, where a workman,
employed by the owners of a ship in unloading it to a dock by means

'<See, for instance, the Workmen's Compensation for Injuries Act of
Ontario— Ont. Rev. Stat, ch. 160.


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

of a crane on the quay, hired by the owners, was killed by the acci-
dental explosion of a case of percussion-caps, while placing it in a
basket attached to the chain of the crane for the purpose of hoisting
it from the ship, it was held that the accident arose out of and in the
course of his employment on or about machinery used in the process
of unloading to a quay, so as to render the owners liable. 1

§4577. Volunteers. — In one case it appeared that a servant was
employed at a railway-station as a ticket-collector, and after he had
taken up all the tickets, and the train had started, he stepped on the
foot-board to speak to a woman passenger, for his own pleasure and
not for any object of his employment, and was injured in getting off.
It was held that the accident did not "arise out of" his employment. 8
The conclusion was the same where a person employed in a factory
to do purely unskilled labor, and expressly forbidden to touch any of
the machinery, was injured while attempting, in violation of such
orders, to clean a machine. 4 '

§ 4578. Workmen Using Forbidden Route. — But a fatal accident
to a workman was deemed to have occurred in the course of his em-
ployment, notwithstanding the fact that, at the time thereof, he was
going from one place of his employment to another by a forbidden
route, which was more dangerous than another route which was avail-
able to him. 5 In another case a fireman in a coal-pit, part of whose
duty it was to report to the colliery office the condition of the mine,
rode toward the office, though, in disobedience of the rule of the col-
liery, on a laden tram drawn by a horse. The horse ran away and he
jumped off the tram to stop it, and while so doing he fell and was run
over by the tram. It was held that the accident arose out of and in
the course of his employment, — the court holding that an accident
happening to a workman who while in his master's employ, and on
his master's work, does in an emergency an act in the interests of his

'Woodham v. Atlantic Transport machine while operator was tern-
Co., [1899] 1 Q. B. 15; s. c. 68 L. J. porarlly absent).
Q. B. (N. S.) 17. 'McNicholas v. Dawson, [1899] 1

'Smith v. Lancashire Ac. R. Co., Q. B. 773; s. c. 68 L. J. Q. B. (N.

[1899] 1 Q. B. 141; 8. c. 68 L. J. 8.) 470 (crawled under a revolving

Q. B. (N. S.) 51. shaft in order to leave engine-shed

* Lowe v. Pearson, [1899] 1 Q. B. by a small door, Instead of going

261; s. c. 68 L. J. Q. B. (N. S.) out of main door and walking

122 (boy employed in a pottery, around the shed to a mortar-pan

whose duty was to make balls of outside, which it was his duty to

clay and hand them to the operator attend to when not engaged with

of a machine, attempted to clean the engine).


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master outside the scope of his employment, and is injured while so
doing, is within the purview of the act.*

§4579. Workmen doing to Work along Railroad-Track. — In a

case under the English statute, it was held that the death of an em-
ploy^ of railroad contractors engaged in ballasting a railroad-siding,
from being struck by a train about seven minutes before the hour for
commencing work, at a point about 150 yards from the work, as he
was proceeding along the main track for the purpose of going to
work, did not arise out of and in the course of his employment, not-
withstanding that the contractors had advised employes, with the au-
thority of the railroad company, to take such route to reach their
work, where there was no contract that the employment should include
the time taken in getting to and from the work. 7

§ 4580. "On, In, or About," Meaning of. — It has been held that an
■employ^ is not employed "on, in or about" the work of his employer
unless he is employed in close propinquity thereto, it not being suffi-
cient that he is engaged in work relating to the business of the em-
ployer. 8

§ 4581. Employment "On, In, or About" an Engineering Work. —

Thus, where an action was brought/ under the clause of the statute al-
lowing a recovery for an accident occurring in the course of an "en-
gineering work," it appeared that a workman was employed on a
steam-dredger used for dredging a harbor, it being part of his duty to
go to sea with the hoppers, into which the mud from harbor was dis-
charged by the steam-dredger, and empty them outside the harbor at
sea. The workman was accidentally drowned in the course of empty-
ing one of the hoppers about one and one-half miles outside the harbor
at sea. It was held that notwithstanding the dredging of the harbor
constituted engineering work, and that he was at times employed on
the dredger, there could be no recovery for his death. The court held
that the expression "engineering work" points to locality, and not to

• Rees v. Thomas, [1899] 1 Q. B. • Lowth v. Ibbotson, [1899] 1 Q. B.

1015; s. c. 68 L. J. Q. B. (N. S.) 1003; 8. c. 68 L. J. Q. B. (N. S.) 465

539 (and since he was found not (carter injured while unloading

to have been guilty of serious or goods from a cart of his employers

willful misconduct in riding on the at a distance of a mile and a half

tram in violation of orders, that from the factory — no recovery) ;

feature was dismissed from consid- Chambers v. Whitehaven Harbour

eration on appeal). Com'rs, [1899] 2 Q. B. 132; s. c. 68

'Holness v. Mackay, [1899] 2 Q. L. J. Q. B. (N. S.) 740; 80 Law T.

B. 319; s. c. 68 L. J. Q. B. (N. S.) (N. S.) 586; 47 Wkly. Rep. 533.


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

the nature of the work, and that, in order to bring a particular case
within the purview of the Act, the employment must be "on, in, or
about" the named locality at the time of the accident. 9

§4582. Employment "On, In, or About" a Factory. — Where a
carter, in the employ of the defendants, was injured while engaged in
loading timber on to one of the defendant's carts, which was standing
in the street close to the entrance to the defendants' timber factory,
it was held that loading the timber on the carts was part of the busi-
ness of the factory, and that the accident happened to the carter while
employed "about" the factory. 10 But it does not follow from this that
an accident occurs "about" a iactory merely because it arises out of an
employment relating to the business of the factory. For instance,
where a carter was injured while unloading goods from a cart of his
employer, at a distance of a mile and a half from the factory, it was
held that he was not entitled to compensation for the injury. 11

§4583. "Factory," What Constitutes.— It has been held that a
steam-engine in a shed about twenty yards from a building in course
of erection, which engine is temporarily used for mixing mortar to be
used on the building, is a "factory" within the meaning of that clause
of the English statute which provides that the word "f actory" as used
in that Act includes any machinery to which any provision of the
Factory Acts is applied by the Factory and Workshop Act, 1895,
where the latter act provides that the provisions thereof "shall have
effect as if any premises on which machinery -worked by steam * * *
is temporarily used for the purpose of the construction of a building,"
were included in the woiyL "factory". 12 On the other hand, it is held
that a wharf on which no machinery is used is not a "f actory" within
the meaning of the Act, unless some provision of the Factory Acts
is applied to the wharf by the Factory and Workshop Act, — the Work-
men's Compensation Act including within the word "factory" any
wharf to which any of such provisions are applied. 18

• Chambers v. Whitehaven Har- Q. B. 773; s. c. 68 L. J. Q. B. (N. 8.)

bour Com'rs, [1899] 2 Q. B. 132; s. 470.

c. 68 L. J. Q. B. (N. S.) 740; 80 Law "Hall v. Snowden, [1899] .2 Q. B.

T. (N. S.) 686; 47 Wkly. Rep. 633. 136; s. c. 68 L. J. Q. B. (N. S.) 646.

10 Powell v. Brown, [1899] 1 Q. B. The court said, by way of illustra-

167; s. c. 68 L. J. Q. B. (N. S.) 151; tion, that if any orders made under

79 Law T. (N. S.) 631; 47 Wkly. the Factory Acts on such matters

Rep. 145. as inspection, notice of accidents,

"Lowth v. Ibbotson, [1899] 1 Q. etc., were applicable to a particular

B. 1003; s. c. 68 L. J. Q. B. (N. S.) wharf, Aen that wharf might be

465. said to be a "factory" within the

" McNlcholas v. Dawson, [1899] 1 meaning of these Acts.


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§4584. Employment "On, In, or About" a Bock. — A workman
employed upon a vessel alongside a dock is not employed •"on, in, or
about" the dock within the meaning of the statute, providing that the
Act shall apply to employment on, in or about a "factory," even though
such dock may be a factory within the meaning of the statute. 14

§468f. Employment on Buildings Exceeding Thirty Feet in
Height. — The English statute provides that / the Act shall apply,
among other things, only to employment "on or in or about * * *
any building which exceeds thirty feet in height, and is either being
constructed and repaired by means of u scaffolding, or being demol-
ished, or on which machinery driven by steam, water, or other me-
chanical power, is being used for the purpose of the construction, re-
pair, or demolition thereof." In an action brought under this clause
of the statute the court held the true construction of this clause
to be that the words "which exceeds thirty feet in height" are to be

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 84 of 165)