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Commentaries on the law of negligence in all relations online

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order was plainly to imperil life or
limb) ; Cummlngs v. Collins, 61 Mo.
520; Chicago &c. R. Co. v. McCarty,

49 Neb. 475; s. c. 68 N. W. Rep. 633
(obeying order requiring immediate
action and allowing no time for de-
liberation) ; Norfolk Beet-Sugar Co.
v. Hight, 59 Neb. 100; s. c. 80 N. W,
Rep. 296; Kehler v. Schwenk, 151
Pa. St. 505; s. c. 31 W. N. C. (Pa.)
201; 31 Am. St. Rep. 777; 25 Atl.
Rep. 130 (boy fourteen years of
age); Martin v. Wrought Iron
Range Co., 4 Tex. -Civ. App. 185; s.
c. 23 S. W. Rep. 387 (employe con-
tracted to drive a gentle team; in-
jured by being required to drive a
vicious one); Gulf Ac. R. Co. v.
Duvall, 12 Tex. Civ. App. 349; s. c.
35 S. W. Rep. 699 (employ 6 injured
by reason of obeying orders to re-
move a dangerous obstruction from
in front of a railway-train); Doug-
las v. Texas &c. R. Co., 63 Tex.
564; Port Worth &c. R. Co. v.
Wrenn, 20 Tex. Civ. App. 628; s. c.

50 S. W. Rep. 2U0 (when ordered to
perform duties outside of his con-
tract, servant assumes only risk of
those dangers of which ha has
knowledge, or Which are as obvious
to him as they would be to the mas-
ter or to his vice-principal); Gal-
veston Oil Co. v. Thompson, 76 Tex.
235; 8. c. 13 S. W. Rep. 60 (doc-
trine placed on the ground of due
care on the part of the servant and
a want of due care on the part of
the superintendent of the master);
Hillboro Oil Co. v. White (Tex.
Civ. App.), 54 S. ,W. Rep. 432 (no
off. rep.); Gulf Ac. R. Co. v. New-
man, 27 Tex. Civ. App. 77; s. c. 64
S. W. Rep. 790 (fireman ordered to
take charge of stationary engine,
outside of and more hazardous than
his regular employment — risk not
assumed) ; Hayes v. Colchester
Mills, 69 Vt. 1; s. c. 37 Atl. 369
(risk not assumed where the serv-
ant is a person of immature years
and incapable of determining
whether the work required is with-



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GENERAL PRINCIPLES- [2d Ed.

or the representative of the employer,, or contrary to his orders, or in
compliance with the orders or request of another employ^ who has
no authority from the employer to give such orders or to make such
request, to perform work outside the scope of his employment, or upon
dangerous premises where the terms of his employment do not require
him to go or to be, — is deemed to assume the risk attendant upon his
voluntary undertaking, and cannot recover for injuries occasioned by
any defect in the premises, machinery or appliances to which he thus
voluntarily exposes himself, 10 — unless an emergency arises justifying
a departure from the ordinary line of his duty. 11 The reason of the
rule is obvious. The master undertakes to exercise reasonable care
to the end of keeping his premises, his machinery, his tools and his
appliances in a reasonable condition of safety for the protection of the
servant employed in a stated service and so long as he continues in
that service. But when he steps outside the line of his duty the rela-
tion of master and servant is deemed to be temporarily suspended:
his position is then analogous to that of a trespasser or bare licensee ; 18
the master owes him no duty to anticipate his deviation from his duty
and the possible danger which may arise to him therefrom and to
provide against it; he takes things as he finds them, and suffers the
consequences of his own error, and cannot make his master liable
therefor. The law will not, on obvious grounds of justice, compel the
master to pay damages which the servant' has brought on himself by
undertaking to do something which the master did not employ him
to do, but will ascribe his calamity to his own unnecessary and gratu-
itous act. Thus, in the absence of a special contract to that effect, it is

in the scope of his employment) ; while doing the work, plaintiff was

Felton v. Girardy, 43 G. G. A. 439 ; injured through no negligence of his

s. c. 104 Fed. Rep. 127 (boiler-mak- own, — the complaint stated a cause

er's helper injured by being put to of action: Ervin v. Evans, 24 Ind.

extra-hazardous service — good illus- App. 335; s. c. 56 N. E. Rep. 725.

tration of the doctrine); Northern "Ante, § 3748, et seq; Ray v. Dia-

Pac. Coal Co. v. Richmond, 15 U. S. mond State Steel Co., 2 Pen. (Del.)

App. 262; s. c. 7 C. C. A. 485; 58 525; s. c. 47 Atl. Rep. 1017; Central

Fed. Rep. 756 (boy of fourteen em- R. &c. Co. v. Chapman, 96 Ga. 769; s.

ployed in a mine did not assume c. 22 S. E. Rep. 273 ; Indiana Ac. Gas

risk of extra-hazardous service Co. v. Marshall, 22 Ind. App. 121;

which neither he nor his father had s. c. 1 Repr. (Ind.) 427; 52 N. E.

reason to believe he would be re- Rep. 232 (doctrine recognized);

quired to perform). Where, there- Mellor v. Merchants' Man. Co., 150

fore, the plaintiff alleged that he Mass. 362; s. c. 23 N. E. Rep. 100;

was employed for no other purpose 7 Rail, ft Corp. L. J. 155; 5 L. R. A.

than to operate machinery in de- 792 (rule held to apply notwith-

fendant's mill and to work on cer- standing Massachusetts Employers'

tain articles, and that he was or- Liability Act of 1887, chap. 270,

dered to repair certain machinery; § 1); Miller v. Madison Car Co., 130

that the work was different from, Mo. 517; s. c. 31 S. W. Rep. 574.

and more dangerous than, the work " Central R. Ac. Co. v. Chapman,

he was employed to do; that defend- 96 Ga. 769; s. c. 22 S. E. Rep. 273.

ant knew the danger; and that, "Vol. I, $ 946.



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

no part of the business of a railway conductor to couple or uncouple
cars, except in case of pressing emergency, of which the jury must
judge. If, in the absence of such an emergency, he undertakes such a
duty, and is killed therein, no damages can be recovered on account of
his death. 18 But if he undertakes to do such a duty under the existence
of such an emergency, then the question would be, whether, in what
he attempted to do, he acted with prudence or not. 14 So, an employ*
in a stave-f actoTy, in the absence of his employers, and contrary to
their directions, exchanged the place of work for which he had been
employed, that of a "catcher," a place of little or no danger, for that
of a "sawyer," a much more dangeroufe position. While thus acting,
a band-wheel broke, and one of the pieces of it hit and injured him.
It was held that he could not recover damages of his employers. 15
The case here supposed is to be carefully distinguished from cases
where the servant is ordered outside the scope of his employment,
either by his master or by a representative of the master having author-
ity to give the order. Here, as already seen, 1 * if the servant, obeying
such order, encounters dangers which are unknown or unappreciated
by him, and which are not obvious and of which his employer or the
representative of his employer has failed to warn him, he is not
deemed to have accepted the risk unless the danger of the new situa-
tion is such that an ordinarily prudent man would not encounter it,
and his master may be liable to him in damages. 17

§ 4678. Who are Volunteers within the Meaning of this Rule. —
There is no consistent line of legal doctrine under this head. As will
be seen in some of the cases cited below; there are unjust and untenable
decisions which put upon the servant the burden of accepting the risk
where he does no more than make a slight deviation from the strict
line of his employment, although he does so in entire good faith and
in some cases at the request or command of a superior servant, and

u Sears v. Central R. Ac. Co., 53 slst another, going over a platform

Ga. 630; s. c. after a second trial, over machinery in operation, not in-

sub nom. Central R. Ac. Co. v. Sears, tended for use at such times, and

59 Ga. 436; 5 Rep. 494; Brown v. disregarded the warnings, of others

Byroads, 47 Ind. 435. Compare Sam- to get down, as it was a dangerous

mon v. New York &c. R. Co., 62 N. place, — assumed the risk).

Y. 251. "Ante, §§ 4630, 4676.

"Central R. &c. Co. v. Sears, "Felton v. Girardy, 43 C. C. A.

supra. 439; s. c. 104 Fed. Rep. 127; Dalle-

"Brown v. Byroads, 47 Ind. 435. mand v. Saalfeldt, 175 111. 310; p.

See also, Di Pietro v. Empire Port- c. 17 Nat. Corp. Rep. 439; 51 N. E.

land Cement Co., 70 App. Div. (N. Rep. 465; aff'g s. c. 73 111. App. 151;

Y.) 501; s. c. 75 N. Y. Supp. 276 16 Nat Corp. Rep. 698; Lindenberg

(employ^ who left work to which v. Crescent Min. Co., 9 Utah 163;

he was assigned, which was free Pittsburg &c. R. Co. v. Adams, 105

from danger, and volunteered to as- Ind. 161.



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GENERAL PRINCIPLES.



[2d Ed.



even with the permission of the master, expressly asked and granted. 18
It has been held that a servant becomes a volunteer and accepts the
risk in the following cases: — Where a railroad brakeman undertakes
to perform the duties of a locomotive-fireman; 19 where a female oper-
ator, without any request or direction from the superintendent, vol-
unteers to assist him in ascertaining the defective condition of the
machine which she operates ; 20 where a weaver who had nothing to do
with the belts or machinery, which were under the care of a loom-
fixer who had no authority to make such a request, undertook to assist
the loom-fixer, at his request, in adjusting a belt, and, while so en-
gaged, was caught in the belt and injured ; 21 where a boy, sixteen years
old, employed in a cotton-gin to mark, assort, and weigh bales of cot-
ton ginned at the round-bale press, who had been employed about
two months and was inexperienced, was called by a workman, who
was not a foreman and had no authority, to assist him in cleaning out
a gin-stand in one of the square-bale gins, and, in doing so, was
injured, — and this although one of the proprietors was standing near
by supervising the work, but did not see the boy until just before the
accident, and did not hear his co-employ6 call him to his assistance
because of the noise of the machinery; 22 where a car-inspector, di-
rected to carry an iron casting which had fallen from a car, to a
designated engine, temporarily lays it down in a dangerous place and
subsequently returns to get it and carry it to the designated place,
and receives an injury while attempting to pick the casting. up; 28



u For example, there Is a decision
of an authoritative court (and there
are others like it, as will be seen
below) which responds to this syl-
labus: "An employ 6 who is injured
while attempting to make repairs to
machinery, which it is no part of
his duty to make, acting of his own
free will, upon the suggestion of a
fellow workman, and after asking
and obtaining the consent of his
own immediate superior, — is a mere
volunteer, and cannot recover for in-
juries occasioned by an accident
caused by the defect which he was
trying to remedy": Mellor v. Mer-
chants' Man. Co., 150 Mass. 362; s.
c. 23 N. B. Rep. 100; 7 Rail, ft Corp.
*L. J. 155; 5L. R. A. 792.

19 Alabama ftc. R. Co. v. Hall, 105
Ala. 599; s. c. 17 South. Rep. 176.

"Allen v. Hixson, 111 Ga. 460; s.
c; 35 S. E. Rep. 810.

M Parent v. Nashua Man. Co., 70
N. H. 199; s. d. 47 Atl. Rep. 261. To



the same effect, on ■ substantially
identical facts, see Martin v. High-
land Park Man. Co., 128 N. C. 264;
s. c. 38 S. E. Rep. 876. Further as
to the effect of obeying orders on
the question of contributory negli-
gence of the servant, — see Orman v.
Mannix, 17 Colo. 564; s. c. 30 Pac.
Rep. 103.7; 17 L. R. A. 602; More-
wood Co. v. Smith, 25 Ind. App. 264;
s. c. 57 N. B. Rep. 199; Walker v.
Lake Shore ftc. R. Co., 104 Mich.
606; s. c. 62 N. W. Rep. 1032; Chi-
cago ftc. R. Co. v. McCarty, 49 Neb.
475; s. c. 68 N. W. Rep. 633; Hills-
boro Oil Co. v. White (Tex. Civ.
App.), 54 S. W. Rep. 432; and es-
pecially, sub-t^tle Contributory Neg-
ligence of Servant, in Vol. V.

"Werner v. Trautwein, 25 Tex.
Civ. App. 608; s. c. 61 S. W. Rep.
447.

"East St. Louis ftc. R. Co. ir.
Craven, 52 111. App. 415 (guilty also
of contributory negligence) .



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

where the servants of the master were under a general instruction
that all of them were to obey the vice-principal, and a servant, obey-
ing the instructions of a vice-principal, but disregarding the master's
instructions, undertook to do work outside of and more hazardous
than his regular employment; 24 where a section-foreman gives a
direction to a section-hand to notice the track closely any time he
is going over the road in going to or coming from his home, and to
report anything which he finds to be wrong, and the "section-hand
goes upon the track for the purpose of going home at the end of his
day's work, and on his way home is killed; 25 where an engine-
wiper, whose duties were to wipe the engine, to put out its fires, and
to remove ashes and cinders, etc., undertook to move an engine over
side-tracks for the convenience of other employes who were engaged
in making up trains, such act being bej r ond the scope of his em-
ployment and wholly unauthorized; 26 where a servant, under the
direction of the foreman, undertakes to assist in protecting the mas-
ter's property from fire, and is injured in so doing; 27 where a boy
employed to work about a mill in a safe position, voluntarily, or
without direction, exposes himself to dangerous machinery, having
such knowledge as to enable him to know the danger; 28 where one
employed on a railway train voluntarily and for his own convenience
performs a more hazardous duty than his own employment, devolving
upon another employ^, — and this although he does so at the request
of thQ foreman of the yard in which he works ; 29 where a car-inspector
undertook to uncouple cars, in order lo help the conductor; 80 where
a servant is injured while working in a place of danger beyond the
scope of his employment, without the direction -of any person having
authority to assign him to such work ; 81 and where a servant is injured
while acting outside the scope of his employment without the master's
orders, even though the machinery or appliance causing the injury
may be defective and dangerous. 82

M Indiana Natural Ac. Gas. Co. v. * Texas Ac. R. Co. v. Skinnem, 4

Marshall, 22 Ind. App. 121; s. c. 1 Tex. Civ. App. 661; s. c. 23 S. W.

Repr. (Ind.) 427; 52 N. B. Rep. Rep. 1001.

232. w Devoe # v. New York Ac. R. Co.,

"Baker v. Chicago &c R. Co., 95 70 App. Div. (N. Y.) 495; s. c. 75

Iowa 163; s. c. 63 N. W. Rep. 667. N. Y. Supp. 136.

* Bequette v. St. Louis Ac. R. Co., 81 Giordano v. Brandywine Granite

86 Mo. App. 601. Co., 3 Pen. (Del.) 423; s. c. 52 Atl-

w Maltbie v. Belden, 167 N. Y. 307; Rep. 332.

s. c. 60 N. B. Rep. 645; 54 L. R. A. "Boyd v. Blumenthal, 3 Pen.

52; rev'g s. c. sub nom. Maltby v. (Del.) 564; s. c. 52 Atl. Rep. 330. It

Belden, 60 N. Y. St. Rep. 824 (where has been held, in an action for the

the danger is obvious). death of an employ^, alleged to have

"Evans v. American Iron Ac. Co., occurred while in the discharge of

42 Fed. Rep. 519; s. c. 24 Ohio L. J. his duties in uncoupling cars, that,

140. in the absence of a rule prescribing

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• GENERAL PRINCIPLES. [2d Ed.

§4679. Employes Acting to Accomplish their Own Purposes. —

Where the employ6 steps outside the line of his duty or the scope of
his employment to accomplish some purpose of his own, he stands in
the position of a volunteer and accepts the risk. It was so held where
a servant, not working overtime, was injured while alighting from his
master's wagon by reason of a defect therein, while being driven for
his own accommodation after hours by a fellow servant to a point
near his home ; 88 where a section-hand, with others, was injured while
taking the "boss" on a hand-car, after the end of the day's work, to a
town off their section ; 8 * and where an employ 6 of a railroad company
rode on the top of a freight-train voluntarily and outside the line of
his employment, and, while there, was struck and killed by a low
bridge, with the situation and character of which he was acquainted, —
the conclusion being that his contributory negligence prevented a
recovery of damages. 85 So, where an employ6 of a railroad icompany,
not being required to do so by his duty, goes on the main track of a
railroad on a hand-car without any invitation on the part of the
company, but without objection, he is a mere licensee, and is subject
to all the risks incident to the use of the track by the company in the
same manner in which it was used at the time the license was
granted. 88

§ 4680. Strangers and Outsiders Volunteering to Assist Servants
of the Master. — A person who volunteers to assist the servant of
another, without being employed so to do by that other, is deemed to
assume all the ordinary risks incident to the situation; his position

the method of coupling cars, it can- going train to which he is assigned,
not be affirmed as matter of law has license to visit the caboose
that the use of the hands is outside to obtain his clothing; but where
the line of the employe's duty, but he is injured while alighting from
that the question is to be determined a moving train on which he has
from evidence showing the habit, gone in search of his apparel he is
custom and duty of employes in not acting within the license, or in
making couplings: Louisville Ac. R. the line of his duty, and cannot re-
Co. v. York, 128 Ala. 305; s. c. 30 cover for the injuries sustained:
South. Rep. 676. Olson v. Minneapolis &c. R. Co., 76
88 Wink v. Weiler, 41 111. App. 346. Minn. 149; s. c. 6 Am. Neg. Rep. 90;

* Hurst v. Chicago &c. R. Co., 49 14 Am. 6 Eng. R. Cas. (N. S.) 770;
Iowa 76. 78 N. W. Rep. 975. See also, Hoeh-

* Pittsburgh Ac. R. Co. v. Sent- mann v. Moss Engraving Co., 4
meyer, 92 Pa. St 276; s. c. 37 Am. Misc. (N. Y.) 160; s. c. 53 N. Y. St
Rep. 684. Compare Rains v. St Rep. 195; 23 N. Y. Supp. 787 (em-
Louis &c. ft. Co., 71 Mo. 164 ; s. c. 36 ploy6 injured while riding on a
Am. Rep. 459. It has been held that freight-elevator at Invitation of a
a brakeman who, in accordance with co-employ6, or for his own pleasure
a prevailing custom, leaves his work- and convenience) .

ing-clothes upon a caboose, although •». Cleveland &c. R. Co. v. Work-
he knows that such car will proba- man, 66 Ohio St 509; s. c. 64 N. E.
bly not be attached to the next out- Rep. 582.

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

is that of a volunteer, and is analogous to that of a trespasser or bare

licensee; he takes things as he finds them, and, in case of his being

injured, — unless the injury occurs under such circumstances as to

create a liability if he were regarded as a trespasser, intruder, or bare

licensee, — he cannot recover damages from the master of the servant

whom he has volunteered to assist. 87

«
§ 4681. Who are Not Volunteers within the Foregoing Rule. —

Under the following circumstances, the injured employ^ has been
held to be, at'the time of receiving the injury, in the line of his duty,
and not a volunteer : — Where an employ^, proceeding to a town near
by, under the direction of his employer, to find lodging, fell into an
open well dug by the employer on the premises near a tent where his
employes were boarded and lodged; 88 where the employes of a rail-
road company voluntarily organized themselves into a fire company
for the protection of the railroad property, the fire company not
being under the control of the railroad company, but being allowed
to drill upon its premises and its chief being allowed by the railroad
company to take an hour from his duties as employ^ to inspect the
premises of the company, — with the conclusion that the chief of the
fire company owed the duty to the railroad company to aid in extin-
guishing a fire, and that, in so doing, he acted as its employ^, and
not as a mere volunteer assuming $11 the risks of such action; 89
where an employ^ in a sawmill, while on his way to discharge a duty
which he had been ordered to perform, in passing along one of the
open thoroughfares of the mill stopped to exchange a remark with a
fellow employ^ concerning the operation of the machinery, and was
injured by the breaking of a belt, — such action not being deemed

"Evarts v. St. Paul Ac. R. Co., Rep. 463 (engineer, without au-

56 Minn. 141; s. c. 22 L. R. A. 663; thority, undertook to employ a

57 N. W. Rep. 459 (cannot recover brakeman to assist him in the man-
from the master for injuries caused agement of the train, for his own
by defects in the instrumentalities convenience); Blair v. Grand Rap-
used, or by the mere negligence of ids &c. R. Co., 60 Mich. 124; s. c. 26
his servants) ; Church v. Chicago N. W. Rep. 855 (person not in the
&c. R. Co., 50 Minn. 218; s. c. 52 employ of a railway company, re-
N. W. Rep. 647 (bystander attempt- quested by its watchman to signal
ing to assist in the switching of a train to stop, assumed the risk
cars in a construction-train at the and could not recover against the
request of the head brakeman, left company for injuries suffered in
in charge of the switching while complying with the request).

the conductor is temporarily absent * Indiana Pipe Line &c. Co. v.

attending to his usual duties at the Neusbaum, 21 Ind. App. 361; s. c.

station); Wagen v. Minneapolis &c. 1 Repr. (Ind.) 500; 52 N. B. Rep.

R. Co., 80 Minn. 92; s. c. 82 N. W. 471; 5 Am. Neg. Rep. 126.

Rep. 1107 (voluntarily assumed to w Collins v. Cincinnati &c. R. Co.,

act as a baggageman on a railroad- 13 Ky. L. Rep. 670; s. c. 11 S. W.

train); Mickelson v. New East Tin- Rep. 11 (no off. rep.),
tic R. Co., 23 Utah 42; s. c. 64 Pac.

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GENERAL PRINCIPLES. [2d Ed.

inconsistent with the proper discharge of his duty ; 40 where employes
of a contractor engaged in taking earth away from cars for a con-
signee, to facilitate the work, assist in dumping the earth from a car
on the request of the crew of the railroad company, and one of the
consignee's employes, while so assisting, is injured by the tipping over
of the car, due to defects therein and to improper loading,— with the
conclusion that the railroad company is liable; 41 where an employ^
is injured while complying with the orders of the overseer of the
room in which he is at work, who has authority to 'give such orders; 42
where a female employ^, employed to remove work from a mangle as
it comes through, is directed by her employer, as he sees her standing
idle, to assist in putting wet clothes through the machine, and she
subsequently puts dry clothes through the machine, in the absence of
the servant employed for that purpose, and is injured by a defect in
the machine; 43 where, although the employ6 was engaged, at the time
of his injury, on other work than that for which he was employed, he
was doing so in accordance with a custom obtaining among the em-
ployes of the master of working upon other duties than those regularly
assigned to them; 44 where a chambermaid in a hotel, with the con-
sent, approval, or direction of the housekeeper or the manager, who
has power to employ and discharge servants of this grade, elects to
use the elevator in passing from one story to another in the perform-
ance of her duties, not knowing or having reason to believe that the
housekeeper or manager has* no right to allow her to use it, and is
injured in consequence of so doing; 45 where a female employ^
mounted a bench to open a window for the purpose of letting steam
and hot air escape, in which attitude she was injuredtby her hair
being caught by a revolving shaft, which passed through the room
near the ceiling and in front of the window; 46 where an employ 6 was
pharged to keep a machine running and to tie in a bolt if it fell out,
and was hurt while attempting to secure the bolt as instructed. 47

" Moore v. Pickering Lumber Co., Tex. Civ. App. 692; s. c. 41 S. W.

105 La. 504; s. c. 29 South. Rep. Rep. 130.

990. "McCloherty v. Gale Man. Co., 19

"Welch v. Maine ftc. R. Co., 86 Ont. App. 117.

Me. 552; 8. c. 25 L. R. A. 658; 30 "Greenville Oil ftc. Co. v. Harkey,

Atl. Rep. 116; 10 Am. R. ft Corp. 20 Tex. Civ. App. 225; 8. c. 48 S. W.

Rep. 293. Rep. 1005. Circumstances under

44 Patnode v. Warren Cotton Mills, which the question whether an em-

157 Mass. 283; s. c. 32 N. E. Rep. ploy6 without experience in milling

161. and without instructions, who lost

tt Fitzhenry v. Lamson, 19 App. his hand hy its coming in contact



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 99 of 165)