Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

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of other employes of the company,
but must stand by the rule appli-
cable to passengers: Yeomans v.
Steam Nav. Co., 44 Cal. 71.



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WHEN RELATION OF MASTER AND SERVANT EXISTS. [2d Ed.

receive cars from each other over a delivery-track at a certain point,
a person employed by such other company to take the numbers of its
cars, and inspect their seals, as trains are being made up at such place
by such other company, is an employ^ of the defendant company,
within the meaning of the statute, — such employe being engaged in a
duty that is mutual, joint, and necessary to both companies. 59

§ 3744. Manufacturer and Hired Priioners. — A manufacturer con-
tracted with prison directors for the labor of convicts on a building
in course of erection, who were to remain in custody of the guards
while engaged in the work. The plaintiff, a convict, was assigned to op-
erate an elevator, and, while engaged at his duty, was injured. It was
held that the relation of master and servant so far existed between
such manufacturer and the plaintiff that the manufacturer was liable
for any injury resulting from his failure to exercise reasonable care
in providing safe machinery.*

Article II. Servants Acting Outside the Scope op theib
Duties — Volunteers — Intermeddlers.

Section Section

3748. Master not liable for injury 3753. Instances of such injuries

to servant when acting out- where the master was held

side the scope of his employ- liable.

ment. 3754. Master voluntarily assuming

3749. Further of injuries to serv- duties of servant, liable for

ants acting outside the line negligently performing such

of their duty. duty.

3750. Injuries to" servants before 3755. Failure of employer to re-

commencing or after quit- strain volunteers and inter-
ting work, outside of work- meddlers,
ing-hours. 3756. Injuries to mere volunteers

3751. Injuries to servants going to and intermeddlers.

their place of employment 3757. When master not chargeable
and returning therefrom. with acts of strangers or In-

3752. Injuries to servants during termeddlers.

temporary cessations of their
employment.

§ 3748. Master Not Liable for Injury to Servant when Acting Out-
side the Scope of his Employment. — As a general statement of
doctrine, it may be said that, to render a master liable as such for an
injury resulting from a breach of his duties to his servant, it must

w Atkyn v. Wabash R. Co., 41 Fed. Jamar, 93 Md. 404; s. c. 49 Atl. Rep.
Rep. 193; s. c. 23 Ohio L. J. 151. 847.

00 Baltimore Boot Ac. Man. Co. v.

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

appear that the injured servant was at the time of the injury acting
within the scope of his employment. 1 A larger statement of the same
principle is to say that, in order to hold a master liable for personal in-
juries to a servant, it must appear tha,t the servant was, at the time of
the injury, engaged in the service of the master, or going to or from
such service, and not acting for some purpose of his own, or going into
some place where it was not proper or necessary that he should have
been. 2 In applying this doctrine it must be kept in view that there
are implied duties resting upon servants, the performance of which
will prevent .them from being imputed with the fault of attempting
duties outside the scope of their employment. For example, a servant
is employed to act as night-watchman on a steamship to prevent pilfer-
ing by river thieves. He is injured while attempting to close one of
the large doors of the pier left open during the day. Owing to the de-
fective condition of the door, of which the foreman of the defendant
has been notified two days before, the night-watchman falls into the
water, in consequence of which he contracts pneumonia and dies. His
master is liable in damages to his personal representative. 8 An em-
ploye* of a railroad company undertook to turn the wheels of an engine
which was being repaired. The foreman of the repair-shop attempted
to assist him and did it negligently, in consequence of which the serv-
ant was injured. An indefensible refinement led to the conclusion that
the superintendent, in so acting, did not represent the company, but
acted as a volunteer and outside the line of his duty as foreman, and
was merely a fellow servant of the injured servant, whereby there could
be no recovery. 4



Southern R. Co. v. Guyton, 122
Ala. 231; s. c. 25 South. Rep. 34
(servant who was working with an-
other gang by direction of the fore-
man of his own gang, who had au-
thority so to direct him, was within
the scope of his employment).

'Lenkvv. Kansas &c. Goal Co., 80
Mo. App. 374; s. c. 2 Mo. App.
Repr. 589 (plaintiff, being overcome
by foul air in a mine, and after
coming to a safe place where he
could get fresh air, went into a
cross-cut designed only as an air-
shaft, and not as a passageway, and
which the master was under no
duty to keep safe for miners to pass
through, and was struck by a fall-
ing rock — master not liable).

3 Upton v. Bartlett, 59 Hun (N.
V.) 619 (mem.) ; s. c. 13 N. Y. Supp.
451; 37 N. Y. St. Rep. 193.

♦Hartford v. Northern Pac. R.

24



Co., 91 Wis. 374; s. c. 64 N. W. Rep.
1033. A working-man in the em-
ployment of a railroad company as
a platelayer was occasionally en-
gaged in the duty of collecting
tickets, and on one occasion, after
having completed the collection of
tickets, got on to the footboard of
a carriage to speak to a passenger.
It was found as a fact that he got
on to the footboard, not for any ob-
ject of his employment, but only
for his own pleasure. In getting
off the train after it had started he
fell between the platform and the
train, and was killed. Here it was
held that the accident was not one
arising "out of" his employment
within the meaning of subsection 1
of section 1 of the Workmen's Com-
pensation Act, 1897; that, to render
an employer liable to pay compensa-
tion, the accident must arise, not



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WHEN RELATION OF MASTER AND SERVANT EXISTS. [2(1 Ed.

§ 3748. Further of Injuries to Servants Acting Outside the line
of their Duty. — If a servant voluntarily, and without any necessity
growing out of his work, abandons the employment for which he is
engaged and steps entirely outside the line of his duty, he thereby
suspends the relation of master and servant as between his master and
himself, and voluntarily puts himself in the attitude of a stranger, —
in which case the question of the liability of the master to him for a
negligent injury will be tested by the principles which would govern



only "out of," but also "in the
course of/' the employment, and
consequently that the railroad com-
pany was not liable: Smith v. Lan-
cashire Ac. R. Co., [1899] 1 Q. B.
141; 8. c. 79 L. T. (N. S.) 633; 47
Wkly. Rep. 146; 68 L. J. Q. B. 51.
Where the servant of a contractor
with the defendant company had
stepped aside on an occasion of na-
ture, and in so doing a gate fell
upon him, injuring him, It was
held, but with doubtful propriety,
that, the company owning the prem-
ises being under no obligation to
furnish a water-closet for the use
of the servants of the contractor,
Its failure to do so was no invita-
tion to the plaintiff to use any por-
tion of the premises that he saw
fit for that purpose: Flanagan v.
Atlantic Alcatraz Asphalt Co., 37
App. Div. (N. Y.) 476; s. c. 6 Am.
Neg. Rep. 694; 66 N. Y. Supp. 18.
In an action by a servant for per-
sonal injuries due to defective ma-
chinery, it was error to charge the
Jury that a verdict for plaintiff
would be authorized if he were not
a servant, but a mere volunteer, at
the time of the injury,' where the
plaintiff based his right to recover
on the allegation that he was in the
employment of the defendant, and
was injured through his failure to
furnish him reasonably safe ma-
chinery* Manchester Man. Co. v.
Polk, 115 Ga. 542; s. c. 41 S. B.
Rep. 1015. A master is not respon-
sible to a servant for injuries re-
sulting from obedience to the or-
ders of another servant employed
for a wholly different service froni
that in which he assumed to give
orders, and who had no authority
to give them. For example, one
employed to look after stock which
is killed, and to look after any liti-
gation against a railroad company,
has no authority by virtue of such



employment to command other em-
ployes of the company. He has no
authority to order employes out of
a train to break up a rock whicl*
has fallen and obstructed a tunnel;
so that an employe Injured by tae
fall of another rock from the roof
while working under such order
cannot recover: Nashville Ac. R.
Co. v. McDaniel, 12 Lea (Tenn.)
386. A railroad company is not lia-
ble for the death of an employe,
caused by an accident while the lat-
ter was rendering a service, out of
his usual employment, for the re-
lief of ifessengers on a wrecked
train, where it was his duty, ac-
cording to the company's rules, to
render such service. The deceased,
a yardmaster, was ordered to go on
a relief-train to the scene of the
wreck, which had been occasioned
by a severe storm, and the relief-
train ran into a culvert which had
been washed out* through no negli-
gence on the part of the company.
Besides, the service being within
the scope of the deceased's employ-
ment, he had as good, if not a bet-
ter opportunity to acquaint himself
with the dangers, as had the assist-
ant superintendent who sent him
out. The court cite Pierce on Rail-
roads to the effect that it is not
negligence to detail a servant for
a dangerous duty outside of his em-
ployment, or a more than usually
dangerous service, when required
for a good reason, as for the safety
of passengers. But the case is not
decided on this ground, because, not
only was the service shown to have
been within the scope of the de-
ceased's employment, but the storm
was raging at the place where de-
ceased was employed, and the acci-
dent happened only two miles away
from that place: Houston Ac. R.
Co. v. Fowler, 56 Tex. 452.

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

as between the master and a stranger. 5 But here the line ought not to
be drawn too tightly against the servant ; if he is acting in good faith
and in the general scope of his employment, he will not be put in
the category of a stranger or volunteer. It was so held where a serv-
ant, who was directed to assist a wrecking-crew in clearing the track,
after having completed the piece of work to which he was assigned,
went to the place where he was injured to see if there was anything
for him to do there. Here the fact that at the time of the injur}' he
was not actually engaged in work did not deprive him of the right to
recover damages on the ground that he was a mere bystander or inter-
meddler and was guilty of contributory negligence, and was thrusting
himself into danger where he had no right to be. 6 So, where a super-
intendent of work orders a servant to do a job for the superintendent's
personal benefit, which service is in the apparent line of the duty of
the servant, he not knowing that the services are for the personal bene-
fit of the superintendent, — he is not debarred from recovering damages
from the master for an injury sustained while so engaged, on the
ground of being out of the line of his employment. 7 So, it has been
held that the fact that the crew of an engine which inflicted personal
injuries on a person on the track were going to their dinner at the time
of the accident does not release the company from liability, where it is
not shown that the engine was not so employed in order that they might
sooner return to their work. 8



•Post, §§ &56, 4677, et seq.

"Reed v. Missouri Ac. R. Co., 94
Mo. App. 371; s. c. 68 S. W. Rep.
364.

7 Sims v. Omaha Ac. R. Co., 89 Mo.
App. 197 (plaintiff was injured by
reason of defective tracks while re-
turning on hand-car from place to
which he had taken the superin-
tendent, who frequently went to
such place, and, the evidence tended
to show, ordered material from
there; though on this occasion he
had gone there to get his dinner,
hut plaintiff was not shown to have
known it). There is a holding to
the effect that, to support a judg-
ment against a railroad company
for negligently causing the death
of one of its section-hands, by the
explosion of a boiler in one of its
pump-houses while eating his din-
ner there during the thirty minutes
allowed for that purpose, the spe-
cial findings of the jury must show
that, notwithstanding the time al-
lowed was too short to allow him
to leave the company's premises,

26



he was at the time of the accident
in the particular pump-house by ex-
press or implied invitation of the
company, and in the line of his
duty, — It not being necessarily In-
cident to his employment as a sec-
tion-hand that he should eat his
dinner in the pump-house in the
vicinity ofhis work: Cleveland Ac.
R. Co. v. Martin, 13 Ind. App. 485;
s. c. 41 N. E. Rep. 1051. A servant
who works during the dinner hour
does not for that reason alone be-
come a volunteer, so as to relieve
the master of liability for an injury
to him resulting from a defect in
the premises. The fact of his be-
ing engaged about his master's busi-
ness will make the time of doing
the work immaterial: Mitchell-
Tranter Co. v. Ehmett, 23 Ky. L.
Rep. 1788; s. c. 65 S. W. Rep. 835;
55 L. R. A. 710 (no off. rep.).

■East St. Louis &c. R. Co. v.
Reames, 75 111. App. 28; s. c. aff*d,
173 111. 582; 51 N. E. Rep. 68. In-
stances where the Servant was held
to be a Volunteer: — An employe^



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WHEN RELATION OP MASTER AND SERVANT EXISTS. [2d Ed.

§ 3750. Injuries to Servant! Before Commencing or After Quit-
ting Work, Outside of Working-Hours. — It has been held that a
railroad employ^ working by the day in a bridge-gang, and living in
a car provided by the company, cannot recover for an injury which he
sustained in a collision after his day's work was performed and while
he was in his car engaged with his own affairs, due to the negligence
of an employe in. charge of a switch-engine, as in such case his em-



injured in loading rails on a mov-
ing car, cannot recover where the
injury was caused by attempting,
without orders, to straighten a rail
after it was put on the car, which
was a duty not required of him by
his employer, there being men on
the car for that purpose: Cleveland
&c. R. Co. v. Carr, 95 111. App. 576.
It has been held that although a
servant's regular duties required
him to go upon the roof of a mill
in which he worked, yet if, at the
time he was injured by the falling
of the roof, he was on the roof not
in the discharge of a duty within
the scope of his employment, the
master is not liable, though he was
negligent in permitting the roof to
be defective: Mitchell-Tranter Co.
v. Ehmetf, 23 Ky. L. Rep. 1788; s. c.
65 S. W. Rep. 835; 55 L. R. A. 710
(no off. rep.). Where a bricklayer
whom the plaintiff was employed
to assist in repairing the furnaces
and stacks of the defendant's mill
directed the plaintiff, as he was
leaving the mill, to do in his ab-
sence anything which any puddler
or heater might ask him to do, it
was held that the order must be
regarded as including only such
things as were in the line of the
plaintiff's duty, and did not include
the removal of a dangerous beam
from the roof, which it was the
duty of the carpenter to remove;
and therefore, in the performance
of that work, the plaintiff was a
volunteer, especially as he was act-
ing for the benefit of the puddler,
who requested Its removal in order
that he might not lose from his
piecework the short time which
he would otherwise have been re-
quired to lose in awaiting the re-
turn of the carpenter: Mitchell-
Tranter Co. v. Ehmett, supra.
Where the plaintiff, employed as a
carpenter in a mill at the defend-
ant's stone quarry, was standing in



front of a truck for the purpose of
determining whether stone with
which the truck was loaded was
properly sawed, when the truck,
without notice to him, was moved,
causing injury to his foot, — it was
held that the plaintiff was a mere
volunteer, unless he was perform-
ing a regular duty, or was acting
under a special order of the fore-
man; and unless such was the case
the company owed him no duty to
keep a lookout; and it was there-
fore error to instruct the jury that,
if he was acting without an order
from the foreman, they should find
for the defendant unless they be-
lieved that the servant in charge
of the truck knew, "or by the exer-
cise of ordinary care might have
known," of the plaintiff's peril, as
the words quoted should have been
omitted: Bowling Green Stone Co.
v. Capshaw, 23 Ky. L. Rep. 945; s.
c. 64 S. W. Rep. 507 (no off. rep.).
Where plaintiff, a boy about six-
teen years old, employed as off-
bearer from a planing*machine, vol-
unteered without suggestion or
leave from any one, to oil the ma-
chine after he had been warned
that it was dangerous to do so, the
master was not liable to him for
an injury received while thus en-
gaged: Floyd v. Kentucky Lum-
ber Co., 23 Ky. L. Rep. 1914; s. c.
66 S. W. Rep. 501 (no off. rep.).
But where it was conceded, on the
trial of an action for injuries re-
ceived from a circular saw, that the
plaintiff was acting as a servant of
the defendant in using the saw, and
not as a volunteer, the defendant
owed him the same care while he
was working with its machinery
with its knowledge and permission
as if he had been ordered to do the
work: Virginia &c. Wheel Co. v.
Chalkley, 98 Va. 62; s. c. 34 S. E.
Rep. 976.



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4 Thom'p. Neg.] duties and liabilities of the master.

ployment did not end with hip day's labor, and he was a fellow serv-
ant with the negligent employ^. 9 A Federal court has held that a coal
miner who, during the noon hour, while not engaged in work, goes to a
different part of the mine, for the purpose of visiting with another
miner^ is not, while so absent, engaged in the line of his duty, so as to
impose upon the employer the duty of a master to see that the entry
through which he passes from and to the part of the mine where he
is. employed is kept in a safe condition for his passage ; so that there
can be no recovery on that ground for the death of a miner under such
circumstances, caused by coming in contact with an uninsulated electric
wire in such passageway. 10

§ 3751. Injuries to Servants Going to their Place of Employment
and Returning therefrom. — The question whether the relation of
master and servant has or has not commenced in the case of a servant
injured while going to his work, or has been suspended in the case of
a servant injured after quitting his work and while returning to his
home, is often an important one, because upon its solution depends
'whether the principles applied shall be those applicable where the in-
jury is done to a stranger, or those applicable where the injury is done
to a servant of the party guilty of negligence. Where a workman had
finished his day's work and was changing his clothes preparatory to
going home, and while so engaged was injured through the negligence
of his employer, it was held that the relation of master and servant still
existed between them. 11 Where laborers are returned by an employer
to their homes by means of a hand-car a number of miles from work,
after working-hours, the employer is liable for an accident to an em-
ploys while returning home, due to the negligence of the foreman in
charge of the men, the relation of master and servant existing though
their day's work is over. 1 * But it has been held that where a fireman
in the employ of a railway company is excused from his duties by his
superior officer, and, while attempting to cross the track at a public

• International Ac. R. Co. v. Ryan, der was merely a means of getting

82 Tex. 565; s. c. 18 S. W. Rep. 219. to his place of work: Evans v.

"Ellsworth v. Metheney, 104 Fed. Vogt &c. Man. Co., 5 Misc. '(N. Y.)

Rep. 119; s. c. 51 L. R. A. 389; 44 330; s. c. 55 N. Y. St. Rep. 212; 25

C. C. A. 484. Compare post, N. Y. Supp. 509 (injured while re-

§§ 3752, 3753. A decision which is turning an oil-can to an upper floor,

obviously unsound is to the effect by some object falling down the

that an employer is not liable for ladder and knocking him off),
an injury to an employe", suffered "Helmke v. Thilmany. 107 Wis,

while he was passing up a ladder 216; s. c. 83 N. W. Rep. 360.
to an upper floor of the unfinished "Wilson v. Banner Lumber Co.,

building in which he was at work, 108 La. 590; s. c. 32 South. Rep.

on an errand, on the ground that 460. To a similar effect, see Bowles

a safe place of work had not been v. Indiana R. Co., 27 Ind. App. 672;

furnished the employe, as the lad- s. c. 62 N. E. Rep. 94.

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WHEN KELATION OF MASTER AND SERVANT EXISTS. [2d Ed.

crossing, is injured, he occupies the relation of one of the public, and
persons in control of his train owe him the same duty as that owing to
the public. 18

§ 3752. Injuries to Servants During Temporary Cessations of their
Employment.— It has been held that where an employer provides a
place for his employes to eat, or directs or permits them to go to a
place for that purpose, he owes to them the same duty of protection
from danger there that he does at the place where such employes
work. 14 Where a servant who was employed by the day, at so much an
hour, was injured through the negligence of the master while eating
his lunch at the noon hour, a contention that he was not at the time
engaged in the work or business of the master was held to be without
merit. 16 Where a hostler took charge of an engine to take it to the
roundhouse, but before doing so ran out some distance on the main
track to take the yardmaster to his dinner, he was not, after his return,
and while proceeding on the roundhouse track to the roundhouse,
deemed to be outside the scope of his employment; so that the rail-
way company was liable for injuries inflicted by his negligence on a
fellow servant while engaged in taking the engine to the roundhouse. 16

§ 3753. Instances of such Injuries where the Master was held
liable. — A miner who is permitted by his employer, either expressly
or impliedly, to go to a certain place in the mine to work, and there
receives injuries from causes of which he had no previous knowledge,
but which were known to the employer, and should, in compliance with
his duty to provide a reasonably safe place for his employes, have been

u Davis v. Atlanta Ac. R. Co., 63 while in the house, so as to pre-

S. C. 370; s. c. 41 S. E. Rep. 468; elude recovery, was held to be with-

Davis y. Atlanta &c. R. Co., 63 S. out merit: Heldmaier v. Cobbs,

C. 577; s. c. 41 S. E. Rep. 892. supra.

u Heldmaier v. Cobbs, 96 111. App. 10 Jenson v. Omaha Ac. R. Co.,

315; s. c. aff'd, 195 111. 172; 62 N. 115 Iowa 404; s. c. 88 N. W.Rep.

E. Rep. 853. 952 (action under Railway Fellow-

1S Heldmaier v. Cobbs, supra. See Servant Act). But where a train-
also, East St. Louis &c. R. Co. v. despatches though having the right
Reames, 75 111. App. 28; s. c. afTd, to cross the tracks of a railroad
173 111. 582; 51 N. E. Rep. 68. company by which he was employed
Where a servant employed on ex- to reach a water-closet provided by
cavating work was told to leave his the company for its employes, went
dinner-bucket in a boiler-house between the cars at another place
maintained by the master, and to urinate, the company owed him*
while there eating his lunch was in- no duty, expect to avoid Injuring
jured by an explosion of dynamite him after discovering his peril:
caps negligently left in the boiler- Louisville Ac. R. Co. v. Hocker, 111
house by the master, a contention, Ky. 707; s. c. 23 Ky. L. Rep. 982,
in an action for the Injuries, that 1274; 64 S. W. Rep. 638; 65 S. W.
the servant was a mere licensee Rep. 119.

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

obviated, may recover from the master for such injuries. 17 Where
the miners in a coal mine, with the knowledge and implied consent
of the owner, are accustomed to use the passages or entries in the
mine as a place for congregating or passing to and fro during hours
of recreation, it is negligence in the owner to introduce and extend
along such an entry an electric wire which is dangerous to the life



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 9 of 165)