Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

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the mode adopted was more perilous than loading rails on a station-
ary car, where he knew the mode adopted when he entered the service,
a6 he assumed the risk. 79 Similarly, an experienced section-foreman
who was injured while helping to unload ties from a moving train
under the immediate direction of the division superintendent, was held
to have assumed the risk, where he had often performed the same work
before and knew the danger. 80 Where an employ^ was ordered by the
master to make an incision in a steel beam by "chipping," instead of
"blocking," as he had been doing, and it appeared that he had had ex-
perience in chipping castings, and was familiar with the danger from
flying chips, — it was held that he assumed the risk of injury from chips
striking him in the eye upon proceeding to "chip" the beam. 81

§4629. Assumes Risk of Injury from Voluntarily Adopting a
Dangerous instead of a Safe Method. — The servant who voluntarily
elects to put himself in a dangerous position in the performance of
his duty, when a safe place or safe method has been provided for him,
assumes the risk of injury from the method which he chooses to em-
ploy. 82 The meaning of this is that if the servant has the choice of
two or more methods and chooses the more dangerous method, in con-
sequence of which he is injured, whereas, if he had chosen the safer
method, he would probably have escaped injury, his voluntary act in
taking the more dangerous course, whether it be called acceptance of
the risk or contributory negligence, prevents him from recovering
damages from the master. For example, if a railroad yardman, in the
performance of his duty of shifting and handling cars in a railroad-

897; aff'g s. c. 12 App. Dlv. (N. Y.) "Wabash R. Co. v. Propst, 92 111.

624 (methods known to and acqul- App. 485; Morris v. Duluth Ac. R.

esced in by him, if they do not vio- Co., 108 Fed. Rep. 747; s. c. 47 C. C.

late any statute — in this case, screw- A. 661; Deering v. Canfleld Ac. Co.,

ing down windows adjoining a fire- 126 Mich. 373; s. c. 85 N. W. Rep.

escape). 874; 8 Det. Leg. N. 48 (new hand

" Cleveland Ac. R. Co. v. Carr, 95 undertook to push out splinters with

111. App. 576 (his foot, slipped under a stick instead of stopping the saw

the wheel and was crushed), or removing the table, — assumed the

•° Webb v. Gulf Ac. R. Co., 27 Tex. risk of the stick breaking and of a

Civ. App. 75; s. c. 65 S. W. Rep. consequent injury from the saw);

684. Hurst v. Kansas City Ac. R. Co., 163

81 Smith v. Wilmington &c. R. Co., Mo. 309; s. c. 63 S. W. Rep. 695
129 N. C. 173; s. c. 39 S. E: Rep. (brakeman switching in yard
805. See also, Beichert v. Reed, 20 started train forward and then at-
App. Div. (N. Y.) 635; s. c. 47 N. tempted to mount it while it was
Y. Supp. 119 (employer failed to fur- moving slowly, instead of holding it
nish tongs or other appliances stationary until he had boarded it,
proper and convenient for removing — and this although the unsafe con-
iron rails — employ^ assumed risk of dition of the yard caused him to
injury from the rebounding of a rail slip),
when thrown upon other rails).

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[2d Ed.



yard, elects to ride upon the pilot of an engine, which is evidently not
constructed for that purpose, and falls from that perch and is in-
jured, he cannot complain that the slats of the pilot were not sufficient
to afford him a reasonably safe footing. 88 So, although the master
does not provide the safest appliances with which to do a given piece
of work, if the servant nevertheless proceeds to do it in a manner
which is less safe, he is thereby deemed (in one court at least) to ac-
cept the risk, it being open and obvious. 84 .

§ 4630. Assumption of Bisk where the Servant is Ordered to Per-
form a" Dangerous Duty .**— The doctrine under this head, — more fully
discussed hereafter when treating of the contributory negligence of the
servant, 85 — is, in substance, that if the servant is ordered by his mas-
ter or by the vice-principal of his master to perform a dangerous
duty, and if the servant sees nothing, or in the exercise of ordinary
care for his own safety could see nothing, which indicates that it is
dangerous, the law will not impute to him the assumption of the risk,
but will hold him blameless, on the ground of his right to rely upon
the exercise of ordinary care for his safety on the part of his master ; 86
but that he is deemed to undertake the risk of a dangerous work, al-
though ordered thereto by his master or by the representative of his
master, if the danger is so obvious and apparent that an ordinarily
prudent man under like circumstances would refuse to obey. 87 Upon



"Young v. Boston Ac. R. Co., 69
N. H. 634; s. c. 41 Atl. Rep. 268.

M McLaughlin v. Camden Iron
Works, 60 N. J. L. 557; s. c. 38 Atl.
Rep. 677 (undertook to raise a
large frame by hand, without a
rigger with derrick and appliances) .
See also, McGoldrick v. Metcalf, 44
N. Y. St. Rep. 476; s. c. 18 N. Y.
Supp. 169 (attempted to remove
rough places from an Iron cylinder
weighing 1250 pounds without call-
ing for assistance, which he might
have had, to help him tnove the
cylinder up an incline to enable him
to do the work more conveniently, —
took the risk of the breaking of a
stick or rung used to hold the cylin-
der in place). Compare Wolf v.
Great Northern R. Co., 72 Minn.
435; s. c. 75 N. W. Rep. 702; 4 Am.
Neg. Rep. 413; 12 Am. & Eng. R. Cas.
(N. S.) 619 (tore down a stone wall
by commencing at the bottom first).
See also, Lehman v. Bagley, 82 111.
App. 197 (employ^ undertook, in
connection with a fellow servant,
without directions from the em-



ployer, to lower a stone by means
of a derrick in a manner essen-
tially different from that which had
been invariably used before, know-
ing that the accustomed manner had
proved to be safe, and being igno-
rant of the probable consequences of
the new experiment, — assumed the
risk of the new method adopted) ;
Mayott v. Norcross, 24 R. I. 187; s. c.
52 Atl. Rep. 894 (experienced em-
ploye undertook to perform with-
out assistance work which he knew
was dangerous when so done, there
being no emergency requiring him
to do so).

a Compare post, § 4663.

"Vol. V.

"Eichholz v. Niagara Falls Hy-
draulic &c. Co., 66 App. Div. (N.
Y.) 441; s. c. 73 N. Y. Supp. 842; s.
c. ard, 174 N. Y. 519 (mem.);
Frank v. Bullion Beck Ac. Co.. 19
Utah 35; s. c. 5 Am. Neg. Rep. 733;
56 Pac. Rep. 419; post, § 4654.

n Christian8on v. Pacific Bridge
Co., 27 Wash. 582; s. c. 63 Pac. Rep.
191.

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4 Thomp. Neg.] assumption of risk by the servant.

this question it has been well reasoned that where a servant is com-
manded, by one having the right to give him orders, to do an act ob-
viously attended with danger, he has the right to assume that his
master or his master's representative has exercised reasonable care to
make the act reasonably safe, and that it is not attended with hidden
perils of which the master has notice and of which the servant has no
knowledge or reasonable means of knowledge. 88 The master, it has
been reasoned, should, to a reasonable extent, watch for and find that
which is not necessarily obvious, while the servant cannot overlook
that which is apparent; and if ordered to do a particular thing, the
servant- has a right to assume that he will not be unnecessarily exposed
to perils, and may rely on the implied assurance that there is no unnec-
essary danger. 89

§ 4631. Docs Not Assume Risk of Temporary Conditions which are
Unusual and Extraordinary. — It is difficult to frame a proposition
under this head which can be supported by all the judicial decisions.
When it is said that the servant assumes the ordinary risks of the em-
ployment, it is implied that he does not assume those risks which are
extraordinary. And yet this statement of doctrine is challenged by de-
cisions which are to the effect that if he is experienced in. the line of
his employment, he assumes the increased hazard resulting from the
adoption by the master or the vice-principal of the master, under
whom he is working, of an unusual and extra-hazardous method of
doing the work, providing the danger proceeding therefrom is obvious,
and the servant has full knowledge of the nature and extent of the
risk. 90 A doctrine then, as formulated by other decisions, is that the
servant does not assume unusual and extraordinary risks incident to
the employment unless they are or ought to be known to and compre-
hended by him. 91 It will, therefore, not do to formulate the proposi-
tion, as some courts have done, by saying that the servant is not held,
as matter of law, to have assumed more than the ordinary risks pertain-
ing to the service, by virtue of voluntarily entering into it. 92 In order
to exonerate him from an assumption of the risk, it ought, according
to another view, to appear that the condition is not a fixed one, ob-
vious or discoverable by the servant by such care as he ought to take

88 Hass v. Chicago &c. R. Co., 97 * Texas Ac. R. Co. v. Eberhart, 91
111. App. 624. Tex. 321; s. c. 43 S. W. Rep. 510;

89 Hass v. Chicago &c. R. Co., aff'g s. c. 40 S. W. Rep. 1060; Moore
supra. Lime Co. v. Richardson, 95 Va. 326;

M Claybaugh v. Kansas City Ac. R. s c. 64 Am. St. Rep. 785; 28 S. B.

Co., 56 Mo. App. 630. Rep. 334. See also, Mallen v. Wal-

91 Dumas v. Stone, 65 Vt. 442; s. dowski, 101 111. App. 367.
c. 25 Atl. Rep. 1097.

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to promote his own safety, but that it is a temporary one resulting
from the negligence of the master, such as he ought not in law to be
required to foresee and guard against. 98 Another court has framed the
proposition that a servant will not be deemed to have consented to any
unusual risk where he had no knowledge of the unusual danger, and
could not, with ordinary care and prudence, have discovered it. 94 It
was held in another case that an employ^ does not assume the risk of
dangers or perils which arise solely out of extraordinary or exceptional
circumstances, unless they are obvious to the senses. 95 The value of
these more or less inconsistent propositions lies in the manner in which
they are judicially applied; and when these judicial applications are
held up to view and compared with each other, the seeming inconsist-
ency among them will no doubt diminish.

§ 4632. Assumes Risk of Inevitable or Inscrutable Accidents. — It

is not necessary to reason upon the conclusion that no recovery can be
had by a servant from his master of damages for injuries visited upon
the servant by what is variously called casus, inevitable or unavoidable
accident, inscrutable accident, or vis major." The reason for this con-
clusion is twofold : 1. The master is not liable to the servant for in-
juries arising in this way, seeing that he has been guilty of no negli-
gence or other wrong; 97 2. As the master is not liable for the injuries
arising in this way, the servant necessarily assumes the risk of them. 98



M Within this description has been
put the, condition of an obstruction
of the view of the track to a rail-
way trainman by brush allowed to
grow on the side of the track, —
this, in the view of the court, not
being a fixed condition — a doubtful
view: Oregon Short Line Ac. R. Co.
v. Tracy, 66 Fed. Rep. 931.

•* Kearney Electric Co. v. Laugh-
lin, 45 Neb. 390; s. c. 63 N. W. Rep.
941. See also, Boyd v. Blumenthal, 3
Pen. (Del.) 564; s. c. 52 Atl. Rep.
330 (assumes all ordinary risks of
the employment, and all such dan-
gers as are patent; but does not
assume risks which cannot be seen
or known in the exercise of ordi-
nary care). For. a declaration in an
action which was held to show no
more than ordinary and apparent
risks, which a servant under the
facts stated assumed, see Coolbroth
v. Maine Ac. R. Co., 77 Me. 165.

" Pittsburgh Bridge Co. v. . Wal-
ker, 170 111. 550; s. c. 48 N. E. Rep.
915; affg s. c. 70 111. App. 55.



" Mancuso v. Cataract Constr. Co.,
87 Hun (N. Y.) 519; & c. 68 N. Y.
St Rep. 153; 34 N. Y. Supp. 273;
Yager, v. Atlantic Ac. R. Co., 4
Hughes (U. S.) 192; Shaller ftc. Co.
v. Corcoran, 21 Ohio C. C. 639; s. c.
11 Ohio C. D. 599 (injuries from the
sliding of earth from the face of a
tunnel which was being constructed
under a lake).

""What judgment shall I dread,
doing no wrong?" — Shak.

98 Easton v. Houston Ac. R. Co., 39
Fed. Rep. 65 (accident to a member
of a bridge-gang which could not
have been foreseen, at least by any
one except the Injured servant and
other members of the gang, who
were his fellow servants) ; Ervin v.
Evans, 24 Ind. App. 335; s. c. 56 N.
E. Rep. 725; Kelley v. Cable Co., 8
Mont. 440; s. c. 20 Pac. Rep. 669
(doctrine of the text applied where
a miner was Injured by an explosion
of a piece of giant powder which he
struck with his pick while digging
among loose rock).

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4 Thomp. Neg.] assumption op risk by the servant.

But this does not exclude the operation of the well-known rule ex»
pressed in the Latin phrase res ipsa loquitur, elsewhere considered,"
since there are many cases where the fact of the injury itself, in con-
nection with evidence of the circumstances under which it takes place,
demonstrates negligence on the part of the master. 100

§ 4633. Rule as to Assumption of Risk does not Apply where Re-
lation of Master and Servant does not Exist. — The principle that a
servant, knowing the hazards of the business, who is injured while en-
gaged therein, cannot maintain an action against his master, does not
apply where the relation of master and servant does not- exist, and
where the injury is caused by the negligence of a third person against
whom recovery is sought, although one of the risks of his employment
was exposure to the injury ; but in such a case the third person may be
liable. 101

§ 4634. Effect of Express Contract between Vaster and Servant,
by which the Servant Assumes the Risk. 1018 — In the first place, it is a
question to what extent public policy will uphold contracts between
employer and employ^, whereby the employer undertakes to release
himself from the performance of those duties which but for the con-
tract he would owe to. the employ^, — in other words, where he under-
takes to contract against the consequences of his own negligence, or to
contract for the privilege of killing or injuring his employ^ through
negligence. It has been held on the one hand, that such a contract is
against public policy, 102 especially where it undertakes to release the
master from precautions enjoined upon him by the statute law for

"Vol. I, S 15. son Injured and the person furnish-

100 So held where a piece of coal ing the appliances from which the
flew from a passing train, injuring Injury proceeds is rather that of
a section-hand, who was standing proprietor and independent con-
near the track: Gulf Ac. R. Co. v. tractor, — as where the Injured per-
Wood (Tex. Civ. App.), 63 S. W. son has undertaken to do certain
Rep. 164 (no off. rep.). work for the proprietor at an agreed

101 Pennsylvania Co. v. Backes, 133 price, — then, if the contractor sub-
Ill. 255 ; s. c. 24 N. E. Rep. 563. But sequently borrows an appliance from
it has been held that the servants the proprietor to use in accomplish-
of separate independent contractors ing his contract, it will be his duty
working about the same building as- to examine the appliance and to as-
sume the risk of each other's negll- certain whether it is sufficiently
gence; so that a servant of one con- strong for the purpose to which he
tractor injured through the negli- puts it before making use of it, and
gence of the servant of another con- he cannot make the proprietor re-
tractor cannot recover in an action sponsible for the injury proceeding
against such other contractor: Mur- from any defect in it: Larose v. La-
phy v. Altman, 28 App. Div. (N. Y.) forest, Rap. Jud. Que. 17 C. S. 331.
472; s. c. 51 N. Y. Supp. 106. This lw aSee ante, § 3848.

doctrine seems to be untenable. ""Roesner v. Hermann, 10 Biss.
Where the relation between the per- (U. S.) 486.

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GENERAL PRINCIPLES. [2d Ed.

the protection of his servants. 108 Other courts discover nothing in such
contracts offensive to public policy. 104 In one jurisdiction, an employ^
in a cotton-mill may, by his contract of hiring, agree not to hold his
employer liable for any personal injury sustained while in his service,
whether from explosion, the machinery, or accident, and thereby cover
all negligence, including that of the employer in failing to keep the
machinery in a safe condition and in omitting to have it properly in-
spected. 105 In another jurisdiction the express contract of a local em-
ploy6 of an express company, to assume the risks of his employment,
has been held to include the risk of injuries by cars of a railroad
company with which the express company does business, in an action
against the railroad company. 100 In a Canadian jurisdiction, a work-
man may so contract with his employer as to exonerate the latter from
liability for his negligence, and such renunciation will be an answer
to an action for the negligent killing of the servant under Lord
Campbell's Act; that is to say, the servant may not only contract to
waive his own right to damages in case he is injured, but he may con-
tract to waive the right of his widow to damages in case he is killed. 107
It is to be regretted that the Supreme Court of the United States
has let itself down to this unsound and offensive doctrine. 108 A master
may, of course, impose upon his servant reasonable rules, devised for
the safe prosecution of his business; and an incorporated employer
may exact from those applying for employment, as a condition of
giving such employment, a stipulation that it shall not be liable in
damages to the employ^ for disobedience of specified rules relating
to the conduct Of the employment, the same being, of course, reason-
able, 109 — such, for example, as a' rule of a railroad company prohibit-

"■ Chicago Ac. R. Co. v. Peterson, operate to condone any crime);

39 111. App. 114; Mt Olive Ac. Coal Western Ac. R. Co. v. Bishop, 50 6a.

Co. v. Herbeck, 92 111. App. 441; 465; Western Ac. R. Co. v. Strong,

s. c. aff'd, 190 111. 39; 60 N. E. Rep. 52 Ga. 461; Hendricks v. Western

105 (invalidity of agreement where- Ac. H. Co., 52 Ga. 467.

by mine-worker, in consideration of *■» Fulton Bag Ac. Mills v. Wilson,

extra wages, waived the right to de- 89 Ga. 318; s. c. 15 S. E. Rep. 322.

mand props In the mine, which a "•Pittsburgh &c. R. Co. v. Maho-

proprietor was required to use by ney, 148 Ind. 196; s. c. 40 L. R. A.

statute); Louisville Ac. R. Co. v. 101; 46 N. E. Rep. 917; 47 N. E.

Orr, 91 Ala. 548; s. c. 8 South. Rep. Rep. 404.

360 (under a statute). That stipu- » Griffiths v. Earl of Dudley, 9 Q.

lations between a contractor of Gov- B. Div. 357.

eminent work and the Government 1W Baltimore Ac. R. Co. v. Voigt,

as to supervision by the Government 176 U. S. 498; s. c. 20 Sup. Ct. Rep.

did not have the effect of relieving 385; 44 L. ed. 560; rev'g s. c. sub

the contractor of responsibility for nom. Voight v. Baltimore Ac. R. Co.

negligence, whereby his own servant 79 Fed. Rep. 561 (case of an express

was injured, — see Callan v. Bull, 113 messenger).

Cal. 693: s, c. 45 Pac. Rep. 1017. w Russell v. Richmond Ac. R. Co.,

«* Galloway v. Western &c. R. Co., 47 Fed. Rep. 204; s. c. 10 Rail. &

57 Ga. 512 (in so far as they do not Corp.L. J. 413; post, § 4636.

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4 Thomp. Neg.] assumption of bisk by the sebvant. .

ing brakemen from coupling or uncoupling cars without the use of a
stick. 110

§4635. Contraots Exonerating Vaster from Liability in Consid-
eration of Allowing Servant to Participate in Railway Belief Fund,
Hospital Fund, Sick Benefits, Accident and Death Benefits, etc. 110a —
The courts seem to be agreed that a contract between a railway com-
pany and its employ^, whereby the latter, in consideration of being
allowed to participate in certain sick, accident and relief funds de-
vised by the company for the benefit of its employes, variously called
railway relief fund, hospital fund, sick benefits, accident and death
benefits, etc., agrees not to hold the company liable for an injury to
him occurring through its negligence, is valid, 111 although this fund
is created by an assessment laid upon the wages of the employee of
the railway company. 112 An acceptance of benefits under such a con-
tract, it has been held, works a complete accord and satisfaction of
any claim for damages which the injured servant might otherwise
have against the master. 118 If the contract leaves it optional with
the servant to accept such benefits or sue for damages, and he ac-
cepts the benefits, such an acceptance creates an accord and satisfac-
tion, and bars an action to recover damages. 114



110 Russell v. Richmond Ac. R. Co.,

47 Fed. Rep. 204; s. c. 10 Rail. &
Corp. L. J. 413 (notwithstanding
brakemen and others on the trains
of the company habitually coupled
cars without using sticks, within the
knowledge of conductors, who could
not be held to represent the compa-
ny so as to waive rules) ; Pinley v.
Richmond Ac. R. Co., 59 Fed. Rep.
419. One court has, however, held
that a contract that an employe
will not attempt to couple or un-
couple a car unless he knows the
coupling is in the proper condition,
is an invalid attempt to impose on
him a duty which the law imposes
upon the master to see that the im-
plements are in a reasonably safe
state of repair: Missouri Ac. R. Co.
v. Wood (Tex. Civ. App.), 35 S. W.
Rep. 879 (no off. rep.).

u «a See ante, § 3853.

131 Petty v. Brunswick &c. R. Co.,
109 Ga. 666; s. c. 35 S. E. Rep. 82;
Railway Co. v. Cox, 55 Ohio St. 516;
s. c. 35 L. R. A. 512; Eckman v.
Chicago &c. R. Co., 169 111. 312; s. c.

48 N. E. Rep. 496; 38 L. R. A. 750;
Rlngle v. Pennsylvania R. Co., 164
Pa. St. 529; s. c. 30 Atl. Rep.

654



492; Lease v. Pennsylvania Co., 10
Ind. App. 47; s. c. 37 N. E. Rep.
423; Clements v. London Ac. R.
Co., [1894] 2 Q. B. 482 (contract
of an Infant releasing liability un-
der Employers' Liability Act, in con-
sideration of benefits accruing un-
der the rules of an insurance com-
pany formed among the employes,
toward the fund of which the com-
pany contributes).

m Petty v. Brunswick Ac. R. Co.,
109 6a. 666; s. c. 35 S. E. Rep. 82.
Such a contract is not in violation
of the provision of a statute that
contracts between master and serv-
ant, in consideration of employment,
whereby the master is exempted
from liability to the servant for
negligence, as such liability is now
fixed by law, shall be void as
against public policy: Petty v.
Brunswick &c. R. Co., supra.

"•Petty v. Brunswick &c. R. Co.,
109 Qa. 666; s. c. 35 S. E. Rep. 82.

114 Lease v. Pennsylvania Co., 10
Ind. App. 47; s. c. 37 N. E. Rep.
423; Fuller v. Baltimore &c. Relief
Assn., 67 Md. 433; s. c. 10 Atl. Rep.
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GENERAL PRINCIPLES. [2d Ed.

§ 4636. Rules of Employer, Patting the Risks of the Service upon
the Employ^. 114 *— An employer may make rules and regulations for
the conduct of his business, and these will be upheld, in so far as they
are reasonable, although they put the risk of the service upon the em-
ploy6 and exonerate the employer therefrom, either in their substance
or in the particular application which is made of them ; but not where
they are unreasonable or oppressive, — such as a regulation of a rail-
road company making it the duty of the track-foremen to protect
themselves against all trains, regular and extra, without giving them
any notice whatever of the extra trains ; 115 or a rule requiring railway
brakemen to make careful inspections of brakes, ladders, etc., before
using them, where a reasonable time and opportunity are not allowed,
nor proper appliances furnished, for making such an inspection; 116
or a rule that the regular compensation for services covers all risks,
and that remaining in the service will be considered an acceptance of
this condition of employment, where the servant has not, in express
te^ms, agreed to it; 117 or where he has agreed to it; 118 or a rule
which attempts to exempt the employer from liability under a stat-
ute requiring him to furnish and maintain suitable materials and ap-



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 90 of 165)