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Commentaries on the law of negligence in all relations online

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or machinery must have been so
grossly or clearly defective that she
must have known of it) ; St Louis
Ac. R. Co. v. Mayfleld, 25 Tex. Civ.
App. 207; s. c. 60 S. W. Rep. 896
(evidence warranted the finding that
servant did not know the dangerous

condition of a bridge, and hence
did not assume the risk) ; Missouri
&c. R. Co. v. Walden, 27 Tex. Civ.
App. 567; s. k c. 66 S. W. Rep. 584
(servant ordered by foreman to lift
over an obstruction a brace which
was being pulled from under a
building by means of a rope, as-
sumed only risk of dangers open
and apparent or known to him, and
not the danger from negligence of
foreman in ordering other em-
ployes to pull on the rope while he
was so engaged); Gulf Ac. R. Co.
v. Hayden, 29 Tex. Civ. App. 280; s.
c. 68 S. W. Rep. 530 (evidence that
a machine and its appliances were
open to the view of the operator,
who understood its operation and
had used it for seven weeks,, but
did not know of any defects;
but that the inspector, also, did not
discover the defect, which was such
as to require an inspection to dis-
cover it,— -justified a finding that
plaintiff did not know of the defect
and had not assumed the risk);
Missouri Ac. R. Co. v. Follin, 29
Tex. Civ. App. 512; s. c. 68 S. W.
Rep. 810 (fireman Ignorant of rule
requiring engineer to have train un-
der control under certain circum-
stances, did not assume risk of lat-
ter's violation of rule) ; Texas Ac. R.
Co. v. Gardner, 29 Tex. Civ. App. 90;
s. c. 69 S. W. Rep. 217 (ordinary la-
borer not warned of danger of
poisoning from immersing machin-
ery in hot lye and caustic soda, and
blowing dirt off with a steam-jet,
whereby particles flew in his face,
did not assume risk); Johnson v.
Ashland First Nat. Bank, 79 Wis.
414; 8. c. 48 N. W. Rep. 712 (does
not assume the risk of falling of a
shed within which he is at work,
from the weight of debris and snow
allowed by the master to remain
upon its roof, when he is ignorant of
the presence of such weight) ; Mc-
Dougall v. Ashland Sulphite Fibre
Co., 97 Wis, 382; s. c. 73 N. W. Rep.
327 (the evidence tending to show
that servant had neither knowledge
nor experience sufficient to enable
him to judge as to the danger at-
tending the shifting of the belt in
the manner in which he had been
instructed, question of assumption'

. 667

Digitized by


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

is entitled to recover, provided the accident would not have happened
but for the unknown defect. 18

§ 4643. Rule where Servant has Same Means of Knowledge that
Master Has. — A servant is deemed to accept the risk where he has the
same knowledge or means of knowledge of the danger that the master
has. 19 This does not mean that a servant is equally chargeable with

of risk was for the jury) ; Carpen-
ter v. Mexican Nat R. Co., 39 Fed.
Rep. 315; s. c. 17 Wash. L. Rep. 630;
6 Rail. ft Corp. L* J. 327 (brakeman
used defective appliance of which
he was ignorant).

"Missouri Pac. R. Co. v. Somers,
78 Tex. 439; s. c. 14 S. W. Rep. 779.

19 As in the following cases:
Hazelhurst v. Brunswick Lumber
Co., 94 Ga. 535; s. c. 19 S. E. Rep.
756; Stewart v. Seaboard Ac. R. Co.,
115 Ga. 624; s. c. 41 S. E. Rep. 981;
Anderberg v. Chicago Ac. R. Co., 98
111. App. 207 (where peril is obvious,
and no explanation by master can
make it more apparent to the or-
dinary intelligence than does the
mere view of it, the 'doctrine of un-
known dangers Incident to a known
defect does not apply) ; Wabash ftc.
R. Co. v. Thompson, 15 111. App.
117; Poznanski v. Szczech, 71 111.
App. 670 (fall of unbraced scaffold-
ing; condition as obvious to plain-
tiff as to defendant, who built it,
both being carpenters) ; Salem Bed-
ford Stone Co. v. Hobbs, 11 Ind.
App. 27; s. c. 38 N. E. Rep. 538;
Staldter v. Huntington, 153 Ind.
354; s. c. 55 N. E. Rep. 88; Ames
v. Lake Shore ftc. R. Co., 135 Ind.
363; 8. c. 35 N. E. Rep. 117; Ouedel-
hofer v. Em sting, 22 Ind. App. 188;
s. c. 53 N. E. Rep. 113; Wortman v.
Minich, 28 Ind. App. 31; 8. c. 62 N.
E. Rep. 85 (experienced employe oil-
ing moving machinery, and injured
by cogwheels' which were unpro-
tected and had been exposed for a
number of days, in plain view);
Diamond Plate-glass Co. v. Dehori-
ty, 143 Ind. 381; s. c. 40 N. E. Rep.
681; Baltimore ftc. R. Co. v. Welsh,
17 Ind. App. 505; s. c. 47 N. E. Rep.
182 (brakeman on construction-train
passing over road not yet open for
traffic) ; Kentucky ftc. Bridge Co. v.
Eastman, 7 Ind. App. 514; s. c. 34
N. E. Rep. 835; Baltimore ftc. R. Co.
v. Spaulding, 21 Ind. App. 323; 8. c
1 Repr. (Ind.) 467; 52 N. E. Rep.


410; Missouri ftc. R. Co. v. Young, 4
Kan. App. 219; s. c. 45 Pac. Rep. 963;
Quigley v. Thomas G. Plant Co., 165
Mass. 368; s. c. 43 N. E. Rep. 205;
Connors v. Morton, 160 Mass. 333;
s. c. 35 N. E. Rep. 860; Allard v.
Hildreth, 173 Mass. 26; a. c. 52 N.
E. Rep. 1061; 5 Am. Neg. Rep. 610;
Rohrabacher v. Woodard, JM Mich.
125; 8. c. 82 N. W. Rep. 797;
Smith v. Tromanhauser, 63 Minn.
98; s. c. 65 N. W. Rep. 144; Dale v.
St Louis ftc. R. Co., 63 Mo. 455,
459; Berning v. Medart, 56 Mo. App.
443; Marshall v. Kansas City Hay
Press Co., 69 Mo. App. 256; Heng-
gler v. Conn, 68 N. J. L. 240; s. c. 52
Atl. Rep. 280 (defective hinge con-
necting two parts of ladder); Loo-
nam v. Brockway, 28 How. Pr. (N.
Y.) 472; s. c. 3 Robt. (N. Y.) 74;
O'Connell v. Clark, 22 App. Div.
(N. Y.) 466; s. c. 48 N. Y. Supp. 74
(assumes risks incident to per-
formance of work in manner direct-
ed by master, where he has equal
opportunities with master to know
of risks) ; Hart v. Naumburg, 123
N. Y. 641; s. c. 33 N. Y. St. Rep. 607;
25 N. E. Rep. 385; rev'g s. c. 50
Hun (N, Y.) 392; 21 N. Y. St. Rep.
951; Cowhill v. Roberts, 71 Hun
(N. Y.) 127; s. c. 54 N. Y. St Rep.
219; 24 N. Y. Supp. 533; Shadle v.
Cleveland Electric ftc. Co., 22 Ohio
C. C. 49; s. c. 12 Ohio C. D. 37;
Carlson v. Sioux Falls Water Co.. 5
S. D. 402; 8. c. 59 N. W. Rep. 217;
Galveston ftc. R. Co. v. Lempe, 59
Tex. 19; Southern ftc. R. Co. v.
Laech, 2 Tex. Civ. App. 68; 8. c. 21
S. W. Rep. 563 (and the servant was
not induced to remain in the service
by the promise of the master to re-
pair the source of danger) ;
Chesapeake ftc. R. Co. v. Sparrow,
98 Va. 630; s. c. 2 Va. Sup. Ct Rep.
526; 37 S. E. Rep. 302; Hencke v.
Ellis, 110 Wis. 532; s. c. 86 N. W.
Rep. 171; Hotl v. Chicago ftc. R. Co.,
94 Wis. 596; s. c. 69 N. W. Rep. 352;
Hazen v. West Superior Lumber Co.,

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[2d Ed.

his master with knowledge of a latent defect in premises or appliances,
although he may have had equal opportunities to ascertain the fact of
it; since he is not under the same duty of inspection which the law
puts upon his master, and the discharge of his duties as servant may
prevent him from taking the necessary time to make such an inspec-
tion ; ao nor is the employer relieved from liability for an injury to his
employe* from a negligent defect in an appliance where the employe
has been at work for only a short time, during which time he has had
no occasion to use the appliance, and where the defeat could not be de-
tected from a casual inspection. 21 Turning^ the proposition around, if
the situation is such that the opportunities of the servant for acquiring
knowledge of the danger are not equal to those of the master, and the
servant, without being guilty of culpable negligence, fails to acquire
knowledge of it, the law does not put upon him the disadvantage of
having assumed the risk. 22

§ 4644. • When Servant Presumed to have Knowledge of Defect or
Danger, — The servant will be presumed to have knowledge of the de-
fect or danger, (1) where the defect or danger is obvious and appar-
ent, so as to be perceived by any one, although without making a spe-
cial inspection; 28 (2) where he has worked for a long time about or in
connection with the defective appliance; 24 (3) where the absence of a

91 Wis. 208; s. c. 64 N. W. Rep. 857;
Bverhard v. Diamond Match Co., 98
Fed. Rep. 555.

" Salem Ac. Co. v. Tepps, 10 Ind.
App. 516; s. c. 38 N. E. Rep. 229.

* Williams v. New York Ac. R. Co.,
2 Misc. (N. Y.) 30; s. c. 49 N. Y. St.
Rep. 568; 21 N. Y. Supp. 259.

* Sackewitz v. . American Biscuit
Man. Co., 78 Mo. App. 144; s. c. 2
Mo. App. Repr. 192.

" Ooltz v. Milwaukee Ac. R. Co., 76
Wis. 136; s. c. 44 N. W. Rep. 752; 41
Am. ft Eng. R. Cas. 282; Watts v.
Hart, 7 Wash. 178; s. c. 34 Pac. Rep.
423, 771 (danger of moving cars on
a spur-track by means of a stake
placed between them and an engine
on the main track); DeForrest v.
Jewett, 19 Hun (N. Y.) 509 (de-
ceased employed in station-yard for
several months, where there was a
ditch which was plainly visible) ;
Lindsay v. New York Ac. R. Co., 112
Fed. Rep. 384; s. c. 50 C. C. A. 298
(brakeman employed continuously
in railroad-yard for over nine
months, fell into one of 119 similar
drains which had existed in the yard

during the whole time of his em-
ployment — assumed risk as matter
of law).

M Atchison Ac. R. Co. v. Alsdurf,
47 111. App. 200 (old brakeman who
had been a baggageman for six
years, and a brakeman on the par-
ticular road for three months, and
who had worked near the place of
the accident ballasting the track,
presumed to know the manner in
which the track was constructed
and ballasted) ; Quinn v. Chicago Ac.
R. Co., 107 Iowa 710; s. c. 12 Am.
A Eng. R. Cas. (N. S.) 512; 77 N. W.
Rep. 464; Austin v. Boston Ac. R.
Co., 164 Mass. 282; s. c. 41 N. E.
Rep. 288; Lovejoy v. Boston Ac. R.
Co., 125 Mass. 79; Fuller v. New
York Ac. R. Co., 175 Mass. 424; s. c.
56 N. E. Rep. 574 (railway employe\
for six months a locomotive fire
man, who had run a stationary en-
gine before that time, presumed to
be familiar with the action of steam
and the liability of the glass tube
of an oiler to burst from pressure
upon it from within, and with the
consequent danger) ; O'Rielly v.


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

particular means of safety is a matter of common knowledge or pre-
sumed to be within the experience of all men of common education ;"
(4) where employes are of mature age, — it being presumed, on their
entering a given service, that they possess knowledge and skill fitting
them therefor, and are acquainted with the dangers ordinarily attend-
ing the service; 28 (5) and such knowledge is often implied from the
special facts and circumstances of the case, as shown by the cases noted
in the margin. 27

Bowker Fertilizer Co., 174 Mass.
202; a. c. 6 Am. Neg. Rep. ^55; 54
N. E. Rep. 534; Missouri Ac. R. Co.
v. Baxter, 42 JNeb. 793; s. c. 60 N.
W. Rep. 1044; Houston ftc. R. Co. v.
Burrager (Tex.), 14 S. W. Rep. 242
(no off. rep.).

28 De Lisle v. Ward, 168 Mass. 579;
s. c. 47 N. E. Rep. 436 (referring to
working about a pile-driver used in
raising logs without a guy-rope to
control the logs) ; Gorman v. Min-
neapolis &c. R. Co., 78 Iowa 509; s.
c. 43 N. W. Rep. 303 (inexperienced
brakeman presumed to know that
the object of detaching an engine is
to let it move away from the train,
so as to allow the train to move for
a certain distance).

"Peterson v. New Pittsburg Coal
ftc. Co., 149 Ind. 260; s. c. 63 Am.
St. Rep. 289; 49 N. E. Rep. 8; Penn-
sylvania Co. v. Congdon, 134 Ind.
226; s. c. 33 N. E. Rep. 795 (boy 18
years old employed as freight-brake-
man, three months in service, pre-
sumed to have sufficient skill and
experience to know that a lantern
used by him in giving signals will
go out if not properly guarded from
the wind, so as to charge him with
knowledge of its condition and
with the duty of informing the rep-
resentative of the company of it) ;
Becker v. Baumgartner, 5 Ind. App.
576; s. c. 32 N. E. Rep. 786; Wilson
v. Tremont &c. Mills, 159 Mass.
154; Kohn v. McNulta, 147 U. S.
238; s. c. 37 L. ed. 150.

"An employe testified that, while
he was operating a paper-cutting
machine, he knew it would let a
knife drop when its gearwheels
came together, and that he made no
complaint to his employer. This
was held to show notice of defects
in the machinery, precluding a re-
covery of damages for the cutting of
his hand, caused by an unexpected
drop of the knife: Howe v. Me-


daris, 183 111. 288; s. c. 55 N. E. Rep.
724; rev'g s. c. 82 111. App. 515. An
employs saw a canvas stretched
upon the third floor of a building
in which he was at work, and was or-
dered to lay planks across it to walk
on; saw a fellow workman walk
around and not across it; shoved a
plank over it and saw the plank sag
down, and concluded that the can-
vas had been placed there to catch
any one if he should step on it. He
was held to be chargeable with
knowledge that there was a hole
under the canvas: Muncie Pulp Co.
v. Jones, 11 Ind. App. 110; s. c. 38
N. E. Rep. 547. It was a part of the
regular duty of a switchman to
handle defective cars. These cars
were taken from trains and placed
upon special side-tracks used for the
purpose. It was held that the mere
presence of a car upon such a side-
track was notice to the switchman
that the car was probably defective,
which put upon him the duty of
examining it to see wherein it was
defective, and which cast upon him
the risk of handling it, — and this
although sound cars, improperly
loaded, were sometimes placed upon
the same side-tracks: Chesapeake ftc.
R. Co. v. Hennessy, 96 Fed. Rep. 713;
s. c. 38 C. C. A. 307. A locomotive-
engineer was killed in a collision
with stock which had come on de-
fendant's track through a defective
fence. It appeared that stock were
frequently seen on such track at and
near the point of collision, and that
it was decedent's duty to keep a
constant lookout for them; and his
reports showed that, during fifteen
months prior to such collision, he
had struck stock eight times. It
>was held that decedent had such
knowledge of the defect as to pre-
clude a recovery of damages for his
death: Houston &c. R. Co. v. Quill
(Tex. Civ. App.), 55 8. W. Rep.

Digitized by



[2d Ed.

§ 4645. When Servant Not Presumed to have Knowledge of De-
fect or Banger. — The servant will not be presumed to have knowledge
of the defect or danger, in the absence of evidence tending to show
actual knowledge, (1) where he has no duty to perform with respect
to the dangerous structure, machine, or appliance from which the
injury to him proceeds; 28 (2) where the employ 6 is unskilled and in-
experienced with respect to the nature of the particular structure,
machine, or appliance; 29 (3) where the employe^ although required
to work with a particular machine, has not sufficient skill to determine,
from an external inspection, its unfitness for use; 30 (4) where the ex-
perience of the servant with respect to the premises about which he is
required to work, has been short and desultory; 81 (5) where the serv-
ant, although experienced with respect to machines of the kind with
which he is required to work, relies on the duty of his employer to use
proper care in furnishing him with a machine which is safe, and, con-
sequently, is not, as matter of law, chargeable with knowledge that
such care has not been used; 82 (6) where the servant might have dis-

1126; s. c aff'd, sub nom. Quill v.
Houston Ac. R. Co., 93 Tex. 616; s. c.
57 S. W. Rep. 948.

"Georgia Pac. R. Co. v. Davis, 92
Ala. 300; s. c. 9 South. Rep. 252
(trainman having no duties to per-
form with respect to construction
and maintenance of roadway not
chargeable with notice of defects
therein); Alton Paving Ac. Co. v.
Hudson, 176 111. 270; s. c. 52 N. E.
Rep. 256; aff'g s. c. 74 111. App. 612
(one employed to oil the machinery
of a steam-shovel not chargeable, as
matter of law, with knowledge of
the danger of the falling of a bank
of clay, etc.); Waxahachie Oil Co.
v. McLain, 27 Tex. Civ. App. 334;
s. c. 66 S. W. Rep. 226 (where a
servant was suddenly called to go
on an oil-cake crusher, which he had
never before been called on to do,
he fulfilled his duty if he exercised
ordinary care in doing so, and was
not negligent in not having there-
tofore ascertained the dangers inci-
dent to the work).

n Colorado Ac. R. Co. v. O'Brien,
16 Colo. 219; s. c. 10 Rail. A Corp.
L. J. 351; 27 Pac. Rep. 701; 48 Am.
A Eng. R. Cas. 235 (unskilled rail-
road laborer not necessarily charge-
able with notice of the defective con-
dition of a newly constructed road-
bed, although he has been engaged
in its construction); Johansen v.
Eastmans Co., 44 App. Div. (N. Y.)

270; s. c. 60 N. Y. Supp. 708; s. c.
aff'd, 168 N. Y. 648; 61 N. E. Rep.
1130 (employe employed to shovel
fat near a revolving Shaft that is
not guarded as required by a stat-
ute does not, as matter of law, as-
sume risk of Injury from coming in
contact with the shaft, where he is
unfamiliar with machinery, is not
employed in connection with the
machinery or the shaft, and there
is no projection on the shaft likely
to catch the clothes of a person
working near it).

80 Central R. Co. v. Haslett, 74 Oa.
'59 (no presumption that a brake-
man has sufficient skill to determine,
from an inspection of the brakes,
their fitness for use).

"Illinois Ac. R. Co. v. Sanders,
166 111. 270; s. c. 46 N. E. Rep. 799;
aff'g s. c. 66 111. App. 439 (brake-
man not presumed, as matter of
law, to know of a defect in the track
in one of the yards in which he is
required to do switching, because he
has acted in that capacity for three
weeks, passing through such yards
twice a day, on a round trip of 100

"Galveston Ac. R. Co. v. Smith
(Tex.), 57 S. W. Rep. 999 (no off.
rep. ) ( unsafe locomotive-engine ) .
In line with this doctrine it has been
held that knowledge or the means
of knowledge, on the part of the
servant, of the general method


Digitized by


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

covered the defective condition of a machine near which he worked,
if he had taken sufficient time from his duties to make an inspection?*
(7) where, under a principle elsewhere considered, 84 a person has been
employed to do certain work, and thereafter, against his protest, is
put to the doing of other work from which another employ^ has been
discharged. 85

§4646. Facts Not Creating a Conclusive Presumption that the
Injured Servant had Knowledge of the Defect or Danger. — Courts
have refused, conclusively, as matter of law, to impute to a servant
knowledge of a defect or danger from the following facts : — From the
fact that a street-car conductor, injured from a brake, knew that the
brake would not properly control the motion of the car without the
application *of unusual force ; 88 from the fact that an employ^, killed
at work in a shaft of a mine by the falling of a car from above, which
was run down grade to the mouth of the shaft by trespassing children,
knew that the track leading to the mouth of the shaft was down
grade, that the car was not blocked when not in use, and that the
stop-block at the end of the track was insufficient, but did not know
that children frequently rode down the grade on the car; 87 from the
fact that the tracks at a particular place were but five feet six inches
apart, the regulation distance being seven feet, — the question whether
the injured brakeman knew of the proximity of the tracks at the partic-
ular place being one for the jury ; 88 from the fact that a girl seventeen
years old, employed in a spinning-room, and injured by the parting
of a belt, was present when the ends of the belt were laced together, —
this not imputing knowledge that the belt was unsafe; 88 from the
fact that a seaman, injured while operating a defective steam-winch
used in shifting the cargo, had an opportunity for seeing the winch
before the ship sailed; 40 from the fact that the ground on which a

adopted by the master in carrying Civ. App.), 54 S. W. Rep. 432 (no

on his business, is insufficient to off. rep.).

charge the* servant with knowledge " Newhart v. St Paul City R. Co.,

that defective or Insufficient appli- 51 Minn. 42; s. c. 52 N. W. Rep. 983.

ances may be used; but he has a "Knight v. Sadtler Lead ftc. Co.,

right to rely on the assumption that 75 Mo. App. 541.

the appliances furnished are free "Voorhes v. Lake Shore &c. R.

from defects discoverable by a Co., 193 Pa. St. 115; s. c. 44 Atl.

proper inspection: Texas &c. R. Rep. 335.

Co. v. Archibald, 170 U. S. 665; s. c. "McGar v. National Ac. Worsted

42 L. ed. 1188; 18 Sup. Ct. Rep. 777. Mills, 22 R. I. 347; s. c. 47 Atl. Rep.

M Toomey v. Avery Stamping Co., 1092.

20 Ohio C. C. 83; s. c. 11 Ohio C. D. "Eldridge v. Atlas Steamship Co.,

216. 58 Hun (N. Y.) 96; s. c. 33 N. Y.

"Post, § 4672. St. Rep. 1016; 11 N. Y. Supp. 468; s.

"Hillsboro Oil Co. v. White (Tex. c. aff'd, 134 N. Y. 187; 32 N. E. Rep.



Digitized by LjOOQLC


side-track was laid was known by the brakeman to be wet and soft,
and the fact that the brakeman knew that low joints were liable to be
caused thereby, — this not imputing knowledge of the existence of
such a defect, whereby he was injured while making a coupling; 41
from the fact that an extra hand, employed in railroad switch-yards,
worked in different yards, where there were many switches, in which
men were constantly employed in making repairs, — this not charging
him with knowledge of the defective blocking of a particular switch
in one of such yards, which he was required to use in the night-time,
whereby he was injured, although the defect had existed for some
time, and was obvious in the daytime; 42 from the fact that an em-
ploy6 in a sawmill knew that a conveyor was defective, and that it
frequently allowed shingle-bolts to fall down the conveyor, where he
did not know that the bolts might jump from the conveyor and fall
on the table where he was working, and such danger was not obvious. 48

§ 4647. Sufficient that Servant > Knew, or with Ordinary Care
Should Have Known. — Negligent ignorance being in law tantamount
to knowledge, it is sufficient, to put upon the servant the disadvantage
of accepting the risk, that he knew of the source of danger, or might
have known of it by the exercise of that measure of care which he
ought to take for his own safety under the circumstances of the par-
ticular case, which comes within the description of ordinary or rea-
sonable care. 44 The true test by which to determine whether the serv-
ant assumed the risk of the particular danger as one of the ordinary
risks of his employment, and whether he was guilty of contributory
negligence in facing or neglecting the danger, is to consider whether,
under all the surrounding conditions, he ought to have known and
comprehended the danger, and not whether, in point of fact, he did
know and comprehend it; 45 and, as we* shall now see, it is, in most
cases, a question upon which the judge cannot speak in the application
of any definite rule of law, but it is for a jury to say whether he ought
to have known and comprehended. 4


41 Texas Ac. R. Co. v. McCoy, 17 which he should have discovered);
Tex. Civ. App. 494; 8. c. 44 S. W. Baltimore Ac. R. Co. v. Welsh, 17
Rep. 25.* Ind. App. 505; s. c. 47 N. E. Rep.

42 Hunt v. Kane, 40 C. C. A. 372; 182 (assume such risks as the exer-
s. c. 100 Fed. Rep. 256. See also, else of his opportunities of inspec-
Felton v. Bullard, 37 C. C. A. 8. tion while giving diligent attention

*• Shoemaker v. Bryant Lumber to the service would disclose to

Ac. Co., 27 Wash. 637; s. c. 68 Pac. him).

Rep. 380. "Klatt v. N. C. Foster Lumber

44 Wells v. Coe, 9 Colo. 159 (ex- Co., 92 Wis. 622, 628; 8. c. 66 N. W.

perienced foreman of a mine in- Rep. 791, 793.

Jured by the fall of a bucket, due " See next section,
to a defect in the hoisting-apparatus

vol. 4 thomp. who. — 43 673

Digitized by LjOOQLC

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

§4648. Which Generally Presents a Question for a Jury. —
The employer will be liable if the employ^ did not know> and could
not have known by the exercise of ordinary care, what precautions
were being taken for his protection, and a jury will be allowed so to
say; 47 or, where it is fairly a question of fact, whether or not he knew,
or was negligent in not knowing, the dangerous condition of a tool
in the hands of a fellow workman, where the defendant had a super-
intendent on hand in charge of the work, who might have discovered

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 93 of 165)