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Commentaries on the law of negligence in all relations online

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read only with the words "and is either being constructed and re- .
paired by means of a scaffolding, or being demolished"; and
that the antecedent to the subsequent words is simply the word
•"building"; and that, hence, a building, in the construction, re-
pair or demolition of which machinery driven by steam, water, or other
mechanical power is being used, need not exceed thirty feet in height
in order to make the Act apply. 15 Another case holds that an accident
to a workman employed on, in or about a building in the course of
construction, which does not at the time, exceed thirty feet in height,
although it is intended that when completed it shall exceed such
height, is not within the English statute. 16

§4586. "Construction" or "Bepair," What Constitutes. — Under
the clause of the English Act quoted in the preceding paragraph, it has
been held that a slight alteration in a completed part of a building,
made for the purpose of giving additional strength to the building,
is neither construction, repair, nor demolition of the building, and that

14 Flowers v. Chambers, [1899] 2 folding is more than thirty feet

Q. B. 142; s. c. 68 L. J. Q. B. (N. S.) high, the distance is to be meas-

648; 80 Law T. (N. S.) 834; 47 ured from the ground to the top of

Wkly. Rep. 513. the roof, instead of to the top of the

"Mellor v. Tomkinson, [1899] 1 walls; but that it is not necessary

Q. B. 374; 8. c. 68 L. J. Q. B. (N. S.) that the workman injured should

214. be working at a height of thirty

"Billings v. Holloway, [1899] 1 feet or more from the ground:

Q. B. 70; s. c. 68 L. J. Q. B. (N. S.) Hoddinott v. Newton, [1899] 1 Q. B.

16. It is said that in determining 1018; s. c. 68 L. J. Q. B. (N. S.)

whether a building being construct- 495.
ed or repaired by means of a scaf-


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

a workman injured in the course of such employment cannot recover
under that Act ; 17 and so in the case of the mere painting of the out-
side of a building. 18

§4587. Bight to Weekly Compensation at Affected by Wage-
Earning Capacity. — A workman who was so injured as to necessitate
the amputation of a thumb, on returning to work for the same em-
ployers was engaged on a different class of work, but was paid the
same amount of wages a week as he had received before the accident.
It was held that there was no evidence of partial incapacity for work
to justify an award for any weekly payment to him under the English
Act, — the sole test of his right to a weekly payment, in respect to his
partial incapacity for work, being held to be his wage-earning capacity
after the accident. 19

Article III. Under Various Factory Acts.

Section Section

4590. Under the Factory Acts and 4594. Under the New York statute.

the Factory and Workshop 4595. Under the Ontario Factories
Acts of England. Act.

4591. Under the Massachusetts stat- 4596. Under the Quebec Factories

ute. Act.

4592. Under the Minnesota statute. 4597. Under the Wisconsin statute.

4593. Under the Missouri statute. x

§ 4590. Under the Factory Acts and the Factory and Workshop
Acts of England. — By an act of the British Parliament, it was pro-
vided : "Every fly-wheel directly connected with the steam-engine, or
water-wheel, or other mechanical power, whether in the engine-house
or not, and every part of a steam-engine, and water-wheel, and every
hoist or teagle, near to which children or young persons are liable to
pass or be employed, and all parts of the mill-gearing in a factory,
shall be securely fenced ; and every wheel-race, not otherwise secured,
shall be fenced close to the edge of the wheel-race ; and the said pro-

17 Hoddinott v. Newton, [1899] 1 for the defendant agreed to the

Q. B. 1018; s. c. 68 L. J. Q. B. (N. court's suggestion that the weekly

S.) 495. payment awarded be reduced to a

18 Wood v. Walsh, [1899] 1 Q. B. nominal* sum, so as to preserve to

1009; s. c. 68 L. J. Q. B. (N. S.) 492. the plaintiff the right to have the

"Irons v. Davis, [1899] 2 Q. B. award reviewed in case it should
330; s. c. 68 L. J. Q. B. (N. S ) 673; afterward appear that he was in-
80 Law T. (N. S.) 673; 47 Wkly. capacitated by reason of such in-
Rep. 616. But since, under another jury from entering upon more re-
clause of the Act, a weekly payment munerative employment: Irons v.
once awarded may be reviewed at Davis, supra.
the request of either party, counsel


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tection to each part shall not be removed while the parts required to
be fenced are in motion by the action of the steam-engine, water-
wheel, or other mechanical power for any manufacturing process/' 1
A declaration under this statute was held bad in arrest of judgment,
for not showing that at the time of the accident the machinery was in
motion for some manufacturing process. 2 On a subsequent trial of
this case, on an amended declaration, it appeared that the injury oc-
curred while the shafting in the particular room of the factory, though
in motion, had been unfenced for the purpose of making repairs, and
while no manufacturing process was going on in the particular room,
though such operations were going on in other rooms. It was held that
the action could not be maintained. In the opinion of the court, the
intention of the legislature was, to give full protection to children and
young persons who were engaged in attending to their duties about
the machinery put in motion in the rooms or on the floors where such
manufacturing processes were going on, and that the protection of the
statute was to be confined to the periods of time when such processes
were there taking place. 8 Although a shafting was unfenced in viola-
tion of the statute, yet if the plaintiff, contrary to the commands of the
proprietor, took hold of it and set it in motion, whereby .he was in-
jured, he could not recover damages. 4 But a mere knowledge on the
part of the servant that such machinery was unfenced, and his con-
tinuing to work about it in this condition, would not, in case he should
be killed thereby, bar a recovery of damages. 5 In an action for an in-
jury, founded on the statute, a plea that the shaft in question was not
near to where children or young persons were liable to pass or be em-
ployed, and was so placed and situated in the said factory that there
did not exist any such liability to injury from the same as to require
it to be fenced while in motion, and that all such liability was suffi-
ciently guarded against by the position and situation of said shaft,
was held a bad plea. A contrary construction, Lord Campbell thought,
would operate to repeal the act. The act did not merely provide that
machinery should be fenced where it was dangerous. All mill-gearing,
while in motion for manufacturing purposes, was to be fenced. The
legislature did not intend to leave it to the proprietor to decide, under
the circumstances of each case, whether he should fence the machinery

1 7 Vict., c. 15, § 21. 4 Caswell v. Worth, 6 El. ft Bl.

"Coe v. Piatt, 7 Exch. 460; s. c. 848; s. c. 2 Jur. (N. S.) 116; 25 L.

16 Jur. 174; 21 L. J. (Bxch.) 146; J. (Q. B.M21.

aff'g b. c. 6 Exch. 752; 2 L. M. ft P. ■ Holmes v. Clarke, 6 Hurl, ft N.

488; 15 Jur. 732; 20 L. J. (Exch.) 349; s. c. 30 L. J. (Exch.) 135; s. c.

407; s. c, again, in 7 Exch. 923; aff'd, 7 Hurl, ft N. 937; s. c. in full,

22 L. J. (Exch.) 164. 2 Thomp. Neg. (1st ed.), p. 953.

•Coe v. Piatt, 7 Exch. 923; s. c.
22 L. J.. (Exch.) 164.

VOL. 4 THOMP. NEG.— 39 609

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

or not.* In an action for the recovery of a fine for a violation of the
clause of the Factory and Workshop Acts requiring "all dangerous
parts of the machinery" in a factory to be securely fenced or otherwise
rendered safe, it was held that shuttles of cotton-looms which occa-
sionally flew out from their beds under circumstances rendering them
dangerous to any persons in the line of flight, because of negligence
of the weaver in charge, or of a foreign substance accidentally get-
ting into the shuttle-race, or of a defect in the' yarn, were within the
meaning of the statute, if any of the causes of their flying out were
likely to occur with any degree of frequency, though they may not have
been in themselves defective, or dangerous in the ordinary course of
careful working. 7 It is provided by section 83 of the Factory and
Workshop Act, 1878, that a factory-owner shall be liable to a fine
where a young person is employed during the hours allowed for meals,
contrary to the provisions of the act, and section 94 provides that a
young person who works in a factory or workshop, whether for wages
or not, in cleaning or oiling any part of the machinery, shall be deemed
to be "employed" within the meaning of the act. Where, therefore, a
young person employed in a spinning-mill, during the time allowed
for a meal oils part of the machinery, though it is no p$rt of his duty,
and he does it contrary to orders and for his own amusement, the
employer is liable to a fine, — the theory of the court being that if he
works during prohibited hours, he is employed, it not being necessary
that he be employed by the master, and that to clear himself the em-
ployer must show that he has used all due diligence to enforce the
execution of the act, and that the offence has really been committed
by some other person ; failing in which, he must trust to the mercy
and discretion of the magistrates in inflicting a fine and in dealing
with the costs. 8

§ 4691. Under the Massachusetts Statute. — An employer of labor
is not liable to an action, either criminal or by an employ^, for a viola-
tion of the Massachusetts statute relating to the guarding of dan-
gerous machinery, until the notice required by another section of the
same statute 10 has been given to him by an inspector of buildings. 11

•Doel v. Shepherd, 5 El. & Bl. •Mass. Pub. Stat., ch. 104, § 13;

866; b. c. 2 Jur. (N. S.) 218; 25 L. Mass. Rev. Laws 1902, ch. 104, § 41.

J. (Q. B.) 124. "Mass Pub. Stat, ch. 104, $ 22

'Hindle v. Birtwistle, [1897] 1 Q. (J 50, Rev. Laws 1902).

B. 192; s. c. 76 Law T. Rep. 159. "Foley v. Pettee Machine Works,

'Prior v. Slaithwaite Spinning 149 Mass. 294; s. c. 4 L. R. A. 51;

Co., [1898] 1 Q. B. 881; s. c. 78 Law 21 N. E. Rep. 304.
T. Rep. 632; 67 L. J. Q. B. (N. S.)


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§ 4592. Under the Minnesota Statute. — It is provided by statute
in, Minnesota that all dangerous machinery in any factory, mill, or
shop shall be so guarded, if practicable, as to protect the workmen or
employes, whether actually engaged in operating the machinery or in
the discharge of any of their duties, from liability to injury there-
from. 12 It is held that where an employer charged with the duty of
so guarding such machinery omits to do so, he is chargeable with neg-
ligence, and is liable to any employ^ injured thereby, though he could
not reasonably have anticipated injury in the precise way in which it
actually occurs. 18

§4593. Under the Missouri Statute. — The Missouri statute re-
quires that all belting, shafting, gearing, and drums in manufactur-
ing establishments, shalj be safely and securely guarded when possible,
and when not possible, that -notice of the danger shall be conspicuously
posted. 14 It has been said that this statute does not make the master
an insurer of the safety of the servant, but is intended to increase
the degree of care required by the common law ; that the master is not
required to guar^ against the negligence of the servant, nor against
such dangers or accidents as no human knowledge or experience could
anticipate ; but that he is only required to provide such guards as will
protect the servant, using ordinary care, against all dangers that can
be foreseen by ordinary human foresight ; and that, further, his failure
to guard his machinery to this extent is negligence per *e. 15

§ 4594. Under the Hew York Statute.— Under a statute of New
York providing that "shafting, set-screws and machinery of every de-
scription shall be properly guarded" by the owners of factories where
machinery is used, 16 and declaring that the term "factory" shall be
construed to include also a "mill, workshop or other manufacturing
or business establishment where one or more persons are employed at
labor," 17 — it has been held that a commercial ice-house, which is ex-

11 Minn Gen. Stat 1894, f 2248. that the statute was construed in

u Christianson v. Northwestern this case by request of counsel. The

Compo-Board Co., 83 Minn. 25; s. c. judgment of the trial court was re-

85 N. W. Rep. 826 (plaintiff acci- versed for error in submitting im-

dentally lost his balance and fell proper issues to the Jury,

against unguarded saw which it "Cummings ft G. N. Y. Gen. Laws

would have been practicable to 1901, p. 2071, § 81; Laws 1899, ch.

guard so as to prevent the Injury). 192, ft 81; amending Laws 1897, ch.

14 Mo. Rev. Stat. 1899, f 6433; Mo. 415, $ 81.

Sess. Acts 1891, p. 160, * 3. "Cummings ft G. N. Y. Gen. Laws

"Colliott v. American Man. Co., 1901, p. 2046, 5 2, cl. 3.
71 Mo. App. 163. It is to be noted


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

tensively equipped with machinery, and in which numerous operators
are employed, is a "factory" within the meaning of this statute. 18

§ 4695. Under the Ontario Factories Act. — The Ontario Factories
Act, in its original form, provided that "all belting, shafting, gear-
ing, flywheels, drums, and other moving paTts" of machinery should be
guarded. 19 It was held in an action under this statute that the word
"moving" was used in its transitive sense, and signified "propelling,"
referring only to parts used for a like purpose as shafting, belting,
etc., and not to the tools moved; and, hence, that no duty was im-
posed on the owners of sawmills to guard the saws, which are pro-
pelled by the moving parts of the machinery. 10 Under this theory a
revolving spindle used to hold a drilling-tool was deemed a "moving
part of the machinery," so that the master was liable for the absence
of a guard to a projecting set-screw therein, by means of which the
drilling-tool was fastened. 11 But the act was afterward amended,
and the word "moving" omitted; 22 after which the act was held to
apply to an unguarded screw conveyor propelled by other machinery."

§4590. Under the Quebec Factories Act. — Under a similar pro-
vision of the Quebec Factories Act, 24 it is held that an employer is
bound to maintain all machinery of every description, and all shafting
and apparatus in connection therewith, in the best possible condition
for the safety of operatives. Hence, an employer was held liable for
injuries to a girl employed in his factory from her hair being caught
on an unguarded revolving shaft under the table at which she was at
work, upon her stooping to pick up a comb which fell while she was
combing her hair, — on the theory that, while operatives were not re-
quired to be under the table, they might at any moment be called
upon to get under it if they, should drop any article or material used
in the business. 25 But in another case brought under the same section

"Rabe v. Consolidated Ice Co., "Hamilton v. Oroesbeck, 19 Ont.

113 Fed. Rep. 905; s. c. 51 C. C. A. Rep. 76.

535. It has been held that section * O'Connor v. Hamilton Bridge

6 of N. T. Laws 1889, ch. 560, re- Co., 21 Ont App. 696; aff'g s. c. 25

quiring all cogs to be "properly Ont Rep. 12.

guarded," devolves no greater duty "Ont. Rev. Stat. 1897, ch. 256,

upon the master than was required 5 20, (1), (a); 58 Vict, ch. 50, 8 3.

of him at common law, and is satis- " Wilson v. Owen Sound Ac. Co.,

fled where the cogs are so guarded 27 Ont App. 328.

as to meet the demands or require- " Quebec Rev. Stat 1888, art

ments of reasonable care: Spauld- 3024, cl. 1.

lng v. Tucker Ac. Cordage Co., 13 "Bergeron v. Tooke, Rap. Jud.

Misc. (N. T.) 398. Que. 9 C. S. 506 (but damages re-

"Ont. Rev. Stat 1887, ch. 208, duced because she had previously

§ 15, subs. 1. been told not to comb her hair until

after quitting-time).


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of the statute, it was held that the duties imposed upon employers by
the Factories Act are police regulations only, and that the civil respon-
sibility of employers toward their employ6s is to be determined by the
provisions of that section of the Civil Code 26 declaring that every
person "is responsible for the damages caused by his fault to another,
whether by positive act, imprudence, neglect, or want of skill," — it ap-
pearing that the Factory Act itself, in another place, 27 declares that
it does not modify or change the provisions of the Civil Code concern-
ing the responsibility of employers toward their employes. Hence, the
mere fact that a flywheel and belt were not securely protected, in viola-
tion of the provisions of the Factories Act, will not necessarily render
the employer liable to an employ^ for injuries caused thereby, but it
must be shown that such failure to guard or fence the machinery was
due to the "positive act, imprudence, neglect or want of skill" of the
employer. 28

§ 4597. Under the Wisconsin Statute.— The atatute of this State
providing that all gearing, etc., "so located as to be dangerous to em-
ployes when engaged in their ordinary duties, shall be securely guarded
or fenced so as to be safe to persons employed in any such place of
employment," 2 * is held to apply to employes engaged in work upon
the gears themselves, as well as to others. 80 Contributory negligence is
held to be a defense under the statute. 81

Article IV. Under Statutes Regulating the Employment of


Section Section

4599. Doctrine that violation of such statutes Is not negli-

such statutes is negligence gence per se.

per «e. 4601. Doctrine that violation of

4600. poctrine that violation of such statutes is evidence of


§4599. Doctrine that Violation of snob. Statutes is Negligence

Per Se. — Under a statute of Tennessee, 1 providing that it shall be
unlawful to employ any child less than twelve years old in a factory,
and that a violation of the act shall be a misdemeanor, it is held that

* Quebec Rev. Stat. 1888, art 1053. " Thompson v. Edward P. Allis
"Quebec Rev. Stat 1888, art. 3053. Co., 89 Wis. 523.

* Montreal Rolling Mills Co. v. "Thompson v. Edward P. Allis
Corcoran, 26 Can. S. C. 595. Co., supra.

m San. ft B. Ann. Wis. Stat, 'Shannon's Tenn. Code 1896,
| 1636f. §§ 4434-4436; Acts 1893, ch. 159.


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

employment of a child in violation of the Act constitutes negligence
per se J and will make the employer liable for all injuries sustained
by the infant, whether in the course of his employment or not, — as
where an infant was playing with certain iron panels, which fell and
injured him. 2

§4600. Doctrine that Violation of such Statutes is Not Negli-
gence Per Se. — Some of the courts proceed upon the theory that the
employment of children in mines, factories, etc., in violation of
statutes, is not negligence, unless it is shown to be the direct or prox-
imate cause of the injuries received by such children while so em-
ployed. Thus, where a boy under twelve years of age was employed
in a factory in violation of a statute, and the employer provided him
with a safe and suitable place to work, and the boy voluntarily went
about the factory and exposed himself to dangerous machinery, in
consequence of which he was injured, he being old enough and experi-
enced enough to appreciate the danger, it was held that the employer
was not guilty of negligence rendering him liable for the injury.* The
conclusion was the same where a child under twelve years old, em-
ployed in a factory in violation of a statute, was injured while play-
ing with an unguarded machine, with which his employment was not
connected, — such injury not being the natural and probable conse-
quence of the employment, or of the employer's negligence in failing
to guard the machine. 4

§ 4601. Doctrine that Violation of such Statutes is Evidenoe of
Negligence. — Other courts take the view that the violation of such
statutes is prima facie evidence of negligence, and that the burden is
on the employer to show that his violation of the statute was not the
proximate cause of the accident. Thus, where a boy twelve years old,
employed as a messenger in a factory office, was directed by his mas-
ter to work at a machine in the factory, in violation of a statute pro-
hibiting the employment of children under fourteen years of age in
any factory, and the boy was injured while so engaged, it was held
that there was sufficient evidence of the master's negligence to take
the case to the jury, — the violation of the statute being evidence of
negligence, and the master's wrongful act in placing the child at work

■Iron &c. Co. v. Green, 108 Tenn. to employment In mines was so

161; s. c. 65 S. W. Rep. 399 [follow- construed)].

ing Queen v. Dayton Goal ftc. Co.. « Evans v. American Iron &c. Co.,

95 Tenn. 458; s. c. 32 S. W. Rep. 42 Fed. Rep. 519; s. c. 24 Ohio L. J.

460; 30 L. R. A. 82; 49 Am. St. Rep. 140 (under Ohio statute).

935 (where a similar act relating 4 Belles v. Jackson, 4 Pa. Dist.

Rep. 194.


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in the factory being the proximate cause of the injury, since if he had
not been so employed the injury would not have happened. 5

Article V. Under Various Other Statutes.

Section Section

4603. Under the English Fatal Ac- 4605. Under Massachusetts statute

cldents Act. giving right of action for

4604. Under the Kentucky statute injuries resulting in death.

as to killing through "will- 4606. Under Wisconsin statute glv-
ful neglect" ing right af action for In-

juries causing death.

§4603. Under the English Fatal Accidents Act. — In an action
under the English Fatal Accidents Act of 1846, to recover damages at
common law for {he death of a workman who had been killed while
descending from an elevated tramway on which he had been working
for the defendants, his employers, the jury found that the defend-
ants did not exercise due care to have the tramway in a proper condi-
tion so as to protect their servants working upon it against unneces-
sary risk ; that it was dangerous to descend from the tramway without
the means of a ladder; that the deceased had the same means of know-
ing that it was dangerous as the defendants had ; that he knew that it
was dangerous ; and that he had not been guilty of contributory negli-
gence. It was held that the mere knowledge on the part of the de-
ceased of the risk of the defect — the want of the ladder — did not nec-
essarily involve his consent to undertake it; and in the absence of
any finding by the jury that he had so consented, the plaintiff was en-
titled to judgment upon the findings of the jury. 1

§ 4604. Under the Kentucky Statute as to Killing through "Will-
ful Neglect." — This statute reads as follows : "If the life of any per-
son is lost or destroyed by the willful neglect of another person or per-
sons, company or companies, corporation or corporations, their agents
or servants, then the personal representative of the deceased shall have
the right to sue such person or persons, company or companies, corpo-
ration or corporations, and recover punitive damages for the loss or
destruction of the life aforesaid." 2 The construction of this statute

"Marino v. Lehmaier, 62 App. gence: Dion v. Richmond Man. Co.,

Div. (N. Y.) 43; s. c. 70 N. Y. St 24 R. I. 187; s. c. 52 Atl. Rep. 889.

Rep. 760. It is said that a master * Williams v. Birmingham Battery

cannot set up his own violation of a ftc. Co., [1899] 2 Q. B. 338; s. c. 68

statute, Intended to protect minors, L. J. Q. B. (N. S.) 918; 81 Law T.

as a defense to his own negligence, (N. S.) 62; 47 Wkly. Rep. 680.

in an action by a minor for negli- '2 Stanton's Rev. Stat. Ky. 510,

I 3.

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

will be noticed in a general way in the discussion of Injuries Resulting
in Death.* We do not perceive any thing in the decisions under it sub-
stantially changing the rules which the Supreme Court of Kentucky

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 85 of 165)