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 http://www.archive.org/cletails/cu31924022876647 
 
*''iL*iinl3&?.!;!.,l!?SM.feJM.en!E!pyers 
 
 3 1924 022 876 647 
 
-AJLGER & SILiATER 
 
 ON 
 
 THE NEW YORK 
 
 EMPLOYERS' Liability Act 
 
 SECOND EDITION 
 
 EEVISED AND ENLARGED 
 
 SY 
 
 GEOROE W. ALGER 
 
 Of the New York Bar. 
 
 ALBANY. N. Y. 
 
 MATTHEW BENDER & CO, 
 
 1907. 
 
Copyright. 1903, 
 Bt MA.TTHBrv\r Bendeb. 
 
 Copyright, 1907. 
 By Matthew Bendeb & Co. 
 
PREFACE TO SECOND EDITION. 
 
 The first edition of this book was brought out very 
 shortly after the New York Employers' Liability Act 
 went into effect. At the time it was published there had 
 been very few New York decisions rendered, construing 
 its terms, and the bulk of the work was necessarily given 
 over to decisions rendered in cases arising under similar 
 acts in other States. In the four years that have 
 elapsed since the first edition was published, the num- 
 ber of New York cases brought under the provisions of 
 the act has grown steadily in volume, as the importance 
 of its provisions in accident suits between employer and 
 employee has been more fully appreciated by the Bar. 
 Notwithstanding the absence of citations of New York 
 authorities in the text of the earlier edition it met with 
 general favor among lawyers and was found useful at 
 times by the Bench in construing provisions of the Act. 
 The present edition has been carefully revised and con- 
 tains a large amount of additional matter rendered pos- 
 sible by numerous decisions of the New York courts 
 upon the act and by recent decisions of States having 
 similar statutes. The purpose of the book will be ac- 
 complished if it proves of some substantial assistance 
 to counsel engaged in the prosecution or defense of 
 actions brought under this statute. 
 
 New York, May 20, 1907. 
 
 iii 
 
PREFACE TO FIRST EDITION. 
 
 The condition of the New York law relating to actions 
 for negligence brought by employees against employers 
 was, for many years prior to the passage of the Employ- 
 ers' Liability Act of 1902, a subject for consideration 
 at the annual meetings of the Workingmen's Federa- 
 tion of the State of New York, an organization which 
 comprises the principal trades unions throughout the 
 State. One of the writers of the present book (Mr. 
 Alger), was employed as counsel for the Federation, 
 to draft and present before the appropriate legislative 
 committees a bill which should, if enacted into statute, 
 afford an injured workman, in a proper case, a better 
 chance of obtaining redress for his injuries, by law. 
 The bill which was first introduced on behalf of this 
 organization in 1898, and in the sessions of 1899, 1900 
 and 1901, was much broader in its provisions than is 
 the present law. This bill (and its successors in subse- 
 quent years) was vigorously opposed by the great carry- 
 ing corporations and other large employers of labor, 
 who sent eminent counsel to appear before the com- 
 mittees of the Senate and House to endeavor to prevent 
 the bill from being favorably reported. 
 
 As it became apparent in the passage of time and by 
 repeated defeats for four successive years that a less 
 radical measure must be drawn to obtain legislative 
 sanction, owing to the powerful opposition arrayed 
 against it, the present law was drafted rather as a 
 foundation for future legislation than an act complete 
 in itself, though enlarging materially the workingman's 
 common-law rights. 
 
 V 
 
vi Peeface to Fiest Edition. 
 
 There are undoubtedly many additions which could 
 properly be made to the present law, and in that respect 
 it merits, to a certain extent, the criticism which it 
 receives from Mr. Leavitt in his excellent Code of Neg- 
 ligence. It does, however, make important changes in 
 the New York law which deserve careful consideration 
 by counsel engaged either in the defense or prosecution 
 of negligence cases. The book is, to a large extent, the 
 result of the careful examination both of the New York 
 common law and of the statute laws of other States, 
 which was made imperative in order to meet the strenu- 
 ous and skillful opposition which counsel for the great 
 railway corporations made to the passage of any statute 
 on this subject. 
 
 Mr. Slater, who, as Senator from the Nineteenth Dis- 
 trict, introduced the bill in the form in which it became 
 a law, had the responsibility of its management in the 
 Senate and House in the year of its final passage. The 
 present book is the result of the knowledge of liability 
 legislation which its joint authors have acquired in 
 their work of promoting the passage of this law, and 
 its purpose will have been accomplished if it affords the 
 New York practitioner a reasonable amount of informa- 
 tion concerning the purpose and scope of this important 
 statute as applied to the New York common law and 
 the meaning of its terms as construed by the courts of 
 other States as well as those of our own. 
 November 1, 1903. 
 
OONTENTS. 
 
 CHAPTER I. 
 
 Paqbt 
 
 LiABruTT Legislation in Genebai< — Its Detelof- 
 
 MENT AND CHAEACTEB — CONSTBUCTION OF LIA- 
 BILITY Act — CONSTITDTrONAIJTT 1-20' 
 
 Section 1. History 1-4 
 
 2. Construction 4-6- 
 
 3. Kelation of employer and employee must exist. . . . 6-8 
 
 4. The cause of action must accrue within the State. . 8- 
 6. Common law rights of action are not affected by 
 
 the statute 8-13- 
 
 6. Contracts exempting employers from liability 
 
 under the statute 13-18 
 
 7. Constitutionality of liability laws lS-20> 
 
 CHAPTER II. 
 
 Deflects in Wats, Wokks and Machxnebt 20-48- 
 
 Seotion 8. Sec. 1, subd. I, makes no change in existing law. . 20-23 
 9. Defence of contributory negligence not affected by 
 
 the statute 23-26- 
 
 10. What is a " defect"? 26-28 
 
 11. Temporary, appliances, instrumentalities, etc 29-32' 
 
 12. Permanent and quasi-permanent appliances 32-34 
 
 13. Incomplete buildings 34-36 
 
 14. Temporary conditions and transitory risks not de- 
 
 fects in ways, etc 36-40' 
 
 16. What are "ways," "works" and "machinery"?.. 40-41 
 
 16. Ownership of machinery by defendant not essential. 41-42* 
 
 17. Tools not machinery, etc .- 42-43 
 
 18. Ways, works and machinery of railways 43-47 
 
 19. Miscellaneous cases of defects in ways, etc 47-48- 
 
 vii 
 
Tiii CONTEJSTS. 
 
 CHAPTER III. Paqk 
 Changes Effected by the Act in the Responsi- 
 
 BILITT OF EMPLOTEBS FOE THE ACTS OF PEBSONS 
 
 Exebcisinq Supebintendencb 49-122 
 
 Section 20. Common law, " fellow servant " rule in New York . 49-52 
 
 21. The superior servant rule 52-54 
 
 22. The added rule as to acts of superintendence; 
 
 statutes compared 65-56 
 
 23. Meaning of superintendence clause 50-00 
 
 24. The effect of the " superintendence clause " 60-02 
 
 25. The employee does not assume the risk of superin- 
 
 tendent's negligence 62-66 
 
 26. Who are superintendents ? 67-68 
 
 27. The question of superintendence ordinarily one for 
 
 the jury 69 
 
 28. What is stiffieient evidence of superintendence?. . . . 69-74 
 
 29. Superintendence must be of men and not of things. 74-75 
 
 30. Manual labor to disprove superintendence 75-77 
 
 31. InsuflBcient proof of superintendence 77-84 
 
 32. The negligent act must be an act of superintendence 84-83 
 
 33. Negligent acts of superintendence 88-111 
 
 34. What are not acts of superintendence 111-119 
 
 35. Acting superintendents 119-121 
 
 36. Superintendence need not be over injured person. . 121-122 
 
 CHAPTER IV. 
 
 The Notice of Injxtbt 123-148 
 
 -Section 37. The statutes compared 123-125 
 
 38. Notice by executors or administrators 125-129 
 
 39. Service of notice 129-132 
 
 40. Excuses for failure to give notice 132-135 
 
 41. Defects in notice; statutory provisions 135-137 
 
 42. The giving of written notice a condition precedent. 137-140 
 
 43. Notice to be pleaded 140 
 
 44. Liberal construction allowed as to notice 140-141 
 
 45. Question of intent to mislead one for the jury. . . . 141-143 
 
 46. Notice to indicate that claim is made for compen- 
 
 sation 143-144 
 
 47. Notice need not state a cause of action 144 
 
 48. What is a sufficient notice? 144-147 
 
Contents. ix 
 
 CHAPTER V. Page 
 
 The Assumed Risks of Employment 148-206 
 
 Section 49. Assumed risks ordinarily not affected by liability 
 
 acts 148-150 
 
 50. Statutory modifications of assumed risk in general. 150-151 
 
 51. Necessary risks always assumed 151-153 
 
 52. Continuance in employment .and unnecessary risks; 
 
 at common law 153-155 
 
 53. The New York common law rule on assumed risk. 156-159 
 
 54. Promise to repair as affecting assumption of risk.. 159-165 
 
 55. Assurance of safety, express instructions, etc., and 
 
 assumption of risk , 165-166 
 
 66. Assumption of risk; burden of proof 167-169 
 
 57. New York common law rule on " statutory risks ". 169-171 
 
 58. Statutory risks; assumption by minors 171-174 
 
 59. The assumed risk in England 174-176 
 
 60. Same; Thomas v. Quartermaine 176-179 
 
 61. Same; Yarmouth v. France 180-182 
 
 62. The rule in Smith v. Baker 182-190 
 
 63. The change intended by the statute 190-193 
 
 64. Section 3 as construed by the New York courts. . . 193-198 
 63. Setting aside verdicts under section 3 198-199 
 
 66. Effect of section 3 on common law actions 200-202 
 
 67. Notice of defect to employer; statutes compared... 203-205 
 
 68. Servant's duty to complain 205 
 
 69. The burden of proof as to the notice of defect 20S 
 
 CHAPTER VI. 
 
 Pleading and Practice 207-224 
 
 Section 70. No general change in pleading made by the act. .. 207 
 
 71. The complaint under the Liability Act 207-213 
 
 72. Pleading several counts 213-215 
 
 73. Joinder of common law and statutory liability 215-217 
 
 74. Pleading by defendant 217-218 
 
 75. Election of remedy 218-222 
 
 76. Effect of judgments 222-224 
 
Contents. 
 
 CHAl'TER VII. Page 
 
 Actions by Railway Employees 225-240 
 
 Section 77. Special provisions relating to railway employees. . 225-228 
 
 78. Constitutionality of railway act 228 
 
 79. " Car," " train," etc., as defined 228-229 
 
 80. " Physical control or direction " 230-231 
 
 81. Physical presence of the person in control un- 
 
 necessary if the control is in fact exercised 231 
 
 82. Negligence of persons exercising physical control 
 
 or direction '. 232-233 
 
 83. Presumption of negligence from existence of defect. 233-234 
 
 84. The Federal Employers' Liability Act 234-236 
 
 85. The Federal Act and the fellow servant doctrine. . . 236-237 
 
 86. The Federal Act and contributory negligence 237-238 
 
 87. The Federal Act and the comparative negligence 
 
 doctrine 238-239 
 
 The New York Employers' Liability Act 240-244 
 
 The New York Railroad Law 245-246 
 
 The Federal Employers' Liability Act 247-248 
 
 English Employers' Liability Act 249-254 
 
 Alabama Employers' Liability Act 255-256 
 
 Massachusetts Employers' Liability Act 257-261 
 
 Indiana Employers' Liability Act ■ 262-264 
 
 Colorado Employers' Liability Act 265-26T 
 
Ti^BI^E OF OASES. 
 
 Page 
 Abrahamaon v. G«neral Supply, etc., Co., 112 A. D. 318; 98 N. Y. 
 
 Supp. 596 67, 76, 79, 88, 120 
 
 Acardo v. N. Y. Contracting and Trucking Co., 116 App. Div. 79, 
 
 102 Supp. 17 217 
 
 Adasken v. Gilbert, 165 Mass. 443 31, 83 
 
 Aetna Mills, Roseback v., 158 Mass. 379 69, 74, 75, 84 
 
 Agnew V. Brooklyn Ry. Co., 20 Abb. N. C. 235 213 
 
 Ala. Gt. So. Ry. Co. v. Carroll, 97 Ala. 126 45 
 
 Ala. Gt. So. Ry. Co., Clement v., 127 Ala. 166, 28 So. 643 32, 42 
 
 Ala. Gt. So. Ry. Co. v. Davis, 119 Ala. 572 214 
 
 Ala. Gt. So. Ry. Co. v. Hall, 105 Ala. 599 119 
 
 Ala. Midland Ry. Co., Culver v., 108 Ala. 330 10, 74 
 
 Albert, Illinois Paper Co. v., 49 111. App. 363 155 
 
 Aldrich, Le Moine v., 177 Mass. 89 155 
 
 Allen, Birmingham Ry. Co. v., 99 Ala. 359 47, 56, 150 
 
 Allen, Lynch v., 160 Mass. ?48-249 38, 41, 144 
 
 Allen V. Smith Iron Co., 160 Mass. 557 32, 43 
 
 Allen V. Stevens, 161 N. Y. 122 4 
 
 Alley, Dolan v., 153 Mass. 380 130-131, 142 
 
 Allison V. Long Cove Flat Rock Co., 75 App. Div. 267 158 
 
 Am. Axe and Tool Co., Lampson v., 177 Mass. 144 155, 159 
 
 Am. Bridge Co., Vogel v., 180 N. Y. 373 79 
 
 Amos v. Duffy, 71 L. R. 21 176 
 
 American Dock & Improv. Co. v. Staley, 40 Super. 539 221 
 
 Andrecsik v. N. Y. Tube Co., N. J. 1906, L. R. A. N. S. 1906, No. 4. 164 
 
 Appel V. Buffalo, etc., Ry. Co., Ill N. Y. 550 157 
 
 Appelby, Chureh v., 58 L. J. Q. B. 144, L. T. R. 88 193 
 
 Arnold v. D. and H. Canal Co., 125 N. Y. 15 152, 156, 157 
 
 Arbuckle, Obanhein v., 80 App. Div. 465 161 
 
 Archibald, T. and P. R. Co. v., 170 U. S. 665 45 
 
 Arkerson v. Dennison, 117 Mass. 407 Ill 
 
 Arnold v. 111. Cent. R. R. Co., 83 111. 273 13 
 
 Ashley v. Hart, 147 Mass. 575 22, 31 
 
 Athol Reservoir Co., McGinty v., 155 Mass. 183 33 
 
 Atlantic Novelty Mfg. Co., Eaves v., 176 Mass. 369. 70, 104 
 
 Atlas S. S. Co., Geoghan v., 146 N. Y. 369 51 
 
 Atlas Safe Moving Co., Meehan v., 94 App. Div. 306, 81 Supp. 1031 108 
 
 Atlas Tack Co;, Cunningham v., 187 Mass. 57 107 
 
 zi 
 
xii Table of Cases. 
 
 PAaa 
 
 Austin V. Goodrich, 49 N. Y. 266 211 
 
 Avery, State v., 44 Vt. 629 41 
 
 Babeock, Nor. Pae. R. R. Co. v., 154 U. S. 190 160 
 
 Babbitt, Crispin v., 81 N. Y. 516 49, 61, 52, 59 
 
 Backus (E. W.) Lumber Co., Smith v., 64 Minn. 447 163 
 
 Baddeley v. Earl Granville, 19 Q. B. D. 423 15, 170 
 
 B3,iley v. Everett, 132 Mass. 441 .141, 144 
 
 Bailey v. R., W. & O. Ry. Co., 139 N. Y. 302 233, 234 
 
 Baird, Morrison v., 10 See. Sess. Cas. (4th series) 271 5 
 
 Baker v. Empire Wire Works, 102 App. Div. 125, 92 Supp. 355 . 195, 199 
 
 Baker, Smith v., 1891, A. C. 325 65, 182, 193 
 
 Balch, Haas v., 12 U. S. App. 534, 6 C. C. A. 201 165 
 
 Ballard, Weblin v., 17 Q. B. D. 122, 125 5, 47, 62, 149, 177 
 
 Baltimore Machine &" Elevator Co., Harris v., 112 App. Div. 389, 
 
 98 Supp. 440 208, 214, 217 
 
 Baltimore Machine & Elevator Co., Harris v., 188 N. Y. 141 .57, 132, 212 
 Bannon v. JS. Y. Central & H. Ry. Co., 112 App. Div. 552, 98 Supp. 
 
 770 68, 85, 113 
 
 Barnard, Reynolds v., 46 N. E. 703, 168 Mass. 226 32, 73, 110 
 
 Barkley v. Boston, 173 Mass. 311 125 
 
 Barry v. Port Jervis, 64 App. Div. 268 134, 135 
 
 Barry v. Biscuit Co., 177 Mass. 449 155 
 
 Barr v. Shaw, 10 Hun, 580 214 
 
 Bartlett v. Cozier, 17 Johns. 438 211 
 
 Bass V. Comstock, 38 N. Y. 21 ! 214 
 
 Bassett v. Conn. River Co., 150 Mass. 178 224 
 
 Batley v. Niagara Falls, etc., Co., 79 Hun, 466 3» 
 
 Bauer v. Empire State Dairy Co., 115 App. Div. 71, 100 Supp. 
 
 663 23, 198. 
 
 Baxter, Sullivan v., 150 Mass. 261 223 
 
 Bayard v. Smith, 17 Wend. 88 213 
 
 Baylor, Birmingham Ry. Co. v., 101 Ala. 488 74 
 
 Bay State Pink Granite Co., Mahoney v., 184 Mass. 287 65, 74, 121 
 
 B. C. M. Co., Harley v., 142 N. Y. 31 30 
 
 Bear Creek Mill Co. v. Parker, 134 Ala. 293 207 
 
 Beauregard v. Webb Granite Co., 160 Mass. 201 142, 145, 221, 222 
 
 Beattie, Mooney v., 180 Mass. 451 31 
 
 Bellamy, Thomas v., 126 Ala. 253 206 
 
 Bell Tel. Co., McGuire v., 167 N. Y. 208 42 
 
 Bellegarde v. Union Bag & Paper Co., 90 App. Div. 527, 86 N. Y. 
 
 Supp. 72 31, 58, 59, 61, 63, 101 
 
 Bennet, Southworth v., 58 N. Y. 65 221 
 
Table of Cases. xiii 
 
 Page 
 
 Bennet, Quarman v., 6 M. & W. 500 7 
 
 Benson v. Goodwin, 147 Mass. 239 52 
 
 Bent, Whitaker v., 167 Mass. 588 37, 89, 94, 114 
 
 Benzing v. Steinway, 101 N. Y. 552 153, 154, 191 
 
 Berger v. Varrelman, 127 N. Y. 281 4 
 
 Berlin & Jones Env. Co., Sweeny v., 101 N. Y. 520 152, 157, 159 
 
 Berry, Wheeler v., 95 Mich. 250 155 
 
 Berthelson v. Gabler, 111 App. Div. 142, 97 Supp. 421 103, 111 
 
 Beverly, Liffin v., 145 Mass. 549 142. 
 
 Beique v. Hosmer, 160 Mass, 541 29, 34 
 
 Berlin Maeh. Wks., Ferris v., 90 Wis. 451 160 
 
 Berger v. Tonawanda, 183 N. Y. 338.'. 140 
 
 Bigelow, Plimpton v., 3 Civ. Pro. 182 217 
 
 Binion v. L. & N. Ry. Co., 98 Ala. 570 4S 
 
 Biogioni v. Eglee Bunting Co., 112 App. Div. 338 10? 
 
 Birmingham Furnace & Mfg. Co. v. Gross, 97 Ala. 220 39 
 
 Birmingham R. R. Co. v. Allen, 97 Ala. 359 47, 56, 150' 
 
 Birmingham R. R. Co. v. Baylor, 101 Ala. 488 74 
 
 Birmingham Battery & Metal Co., Williams v., 22 Q. B. D. 338. . . 176- 
 
 Biscuit Co., Barry v., 177 Mass. 449 155 
 
 Bishop, Western, etc., Ry. Co. v., 50 Ga. 465 14, 155. 
 
 Bjbjian v. Woonsocket Rubber Co., 164 Mass. 214, 219 36. 
 
 Blair v. R. R. Co., 66 N. Y. 313 17 
 
 Blake ( Geo. F. Mfg. Co. ) , Healey v., 180 Mass. 270 130, 138 
 
 Blank v. Hartshorn, 37 Hun, 101 214 
 
 Blount V. City of Troy, 116 App. Div. 609 140' 
 
 Bluedorn v. Mo. Pae. Ry. Co., 108 Moi 439 17» 
 
 Bohn v. Havemeyer, 114 N. Y. 296 152^ 
 
 Boland v. L. & N. Ry. Co., 106 Ala. 641, 96 Ala. 626 46 
 
 Booth V. B. & A. Ry. Co., 73 N. Y. 38 191 
 
 Boston, Barkley v., 173 Mass. 311 125 
 
 Boston Electric Light Co., Willey v., 168 Mass. 40, 42 27 
 
 Boston Electric Light Co., Flynn v., 171 Mass. 395 94, 114 
 
 Boston & Maine Ry., Freemont v.. Ill App. Div. 831, 98 Supp. 179. 195 
 
 Boston & Northern Ry., Dunn v., 189 Mass. 62 44 
 
 Boston, Johnson v., 118 Mass. 114 7 
 
 Boston Tow Boat Co., Couglin v., 151 Mass. 92 9- 
 
 Boston Tow Boat Co., Johnson v., 135 Mass. 209 36. 
 
 Boston Tow Boat Co., Watts v., 161 Mass. 378 205 
 
 Boston, Saunders v., 167 Mass. 595 133: 
 
 Boston, May v., 150 Mass. 517 133 
 
 Boston, Canterbury v., 141 Mass. 215 142, 144' 
 
 Bosworth, Brick v., 162 Mass. 334 14r 
 
^iv Table op Cases. 
 
 Page 
 
 Bowers v. Conn. River Co., 162 Mass. 312 43, 46 
 
 Bossout V. E., W. & O. Ey. Co., 32 St. Rep. 884 17 
 
 Boyd V. Brazil Block Coal Co., 50 N. E. Rep. 368 (Ind.) i. . . 170 
 
 Brady v. Ludlow Mfg. Co., 154 Mass. 468 220, 221 
 
 Bradbury v. Goodwin, 108 Ind. 286 , 166 
 
 Brady v. Noreross, 174 Mass. 442 69 
 
 Bradley v. Brigliam, 149 Mass. 141 223 
 
 Branham v. Central Ey. Co., 78 Ga. 35 238, 239 
 
 Brannigan v. Robinson, 61 L. J. Q. B. D. 202 (1892), 
 
 1 Q. B. 344 35, 36 
 
 Braunberg v. Solomon, 102 App. Div. 330, 92 Supp. 506... 68, 69, 102 
 
 Brazil Block Coal Co., Boyd v., 50 N. E. Rep. 368 (Ind.) 170 
 
 Brewer, Loughran v., 113 Ala. 509 10, 213 
 
 3rewer, Graves v., 4 App. Div. 327, 38 Supp. 566 169 
 
 Brewster, Chad'wick v., 15 Supp. 598 , 165 
 
 Brick v. Bosworth, 162 Mass. 334 147 
 
 Brick V. Rochester Ry. Co., 98 N. Y. 211 , 51 
 
 Bridges v. Tenn. C. & I. Co., 106 Ala. 641 46 
 
 Brigham, Bradley v., 149 Mass. 141 , 223 
 
 Britton v. West End Street Ry. Co., 168 Mass. 10 94 
 
 Broadalbin Knitting Co., Davis v., 90 App. Div. 567, 86 Supp. 127 216 
 
 Brockton St. Ry. Co., Ladd v., 180 Mass. 454 ,. . . 148 
 
 Brooks, Ga., Pac. Ry. Co. v., 84 Ala. 138 40 42 
 
 Bromley v. Covendish Spinning Co., 2 L. T. R. 881 35, 40 
 
 Brown v. Terry, 67 App. Div. 223, 73 Supp. 733 39 
 
 Brooks v. Southern Pacific Eailroad Co., 148 Fed. 988 235 
 
 Brunswick, etc., Ry. Co., Pettus v., 35 S. E. 82 (Ga. 1900) 14 
 
 Brouillette v. Conn. River Co., 162 Mass. 198 45 
 
 Brooklyn, Merz v., 33 St. Rep. 517, 128 N. Y. 617 .[ 139 
 
 Brook V. Ramsden, 63 L. T. & S. 287, 55 J. P. 262 175 
 
 Brooklyn Ry. Co., Agnew v., 20 Abb. N. C. 235 213 
 
 Brooklyn El. Ry. Co., PoUett v., 91 Hun, 296, 36 Supp. 20o! ! ! ! ! ! 222 
 
 Bromfield v. Hughes, 128 Penn. 194 " 105 
 
 Broslin v. Kansas City, etc., Ry. Co., 114 Ala. 398 ] " 206 
 
 Brown, Daly v., 45 App. Div. 428 gj 
 
 Brown v. Harmon, 21 Barb. ^08 212 
 
 Brown, Rockwell v., 36 N. Y. 207 223 
 
 Brownell, O'Keefe v., 156 Mass. 133 41 gg iig 
 
 Bruce v. Burr, 67 N. Y. 237 ' ' 221 
 
 Buffalo P. & R. Ry. Co., Litchfield v., 76 Supp. 80, 73 App. Div. 1 30 
 
 Buffalo R. W. Co., Appel v., Ill N. Y. 550 .157 jgg 
 
 Buffalo, Reining v., 102 N. Y. 308 I39 209' 211 
 
 Buffalo, Curry v., 135 N. Y. 336 " ' jgg 
 
Table of Cases. xv 
 
 Page 
 
 Buckley v. G. & P. Mfg. Co., 113 N. Y. 450 157 
 
 Burden, Corning v., 15 Howard U. S. 267 40 
 
 Burnham, Cogan v., 175 Mass. 391 32, 133 
 
 Burns v. Nichols Chem. Co., 65 App. Div. 424, 72 Supp. 919 153 
 
 Burns v. Washburn, 160 Mass. 457 31, 69 
 
 Buchanan v. Exch. Fire Ins. Co., 61 N. Y. 26 43 
 
 Burr, Bruce v., 67 N. Y. 237 221 
 
 Burton, Kansas City M. & B. Ey. Co. v., 97 Ala. 240 74 
 
 Buse, Siedentop v., 21 App. Div. 592, 47 Supp. 809 165 
 
 Bushby v. N. Y., etc., Ey. Co., 107 N. Y. 374 47 
 
 Burton v. Harvard Brewing Co., 183 Mass. 438 98 
 
 Butler V. Townsend, 126 N. Y. 105 7, 29 
 
 Byrne v. Eastman's Co. of N. Y., 163 N. Y. 461 61 
 
 B. & A. E. E. Co., Mackin v., 135 Mass. 201 44 
 
 B. & A. E. E. Co., Doud v., 162 Mass. 185 84 
 
 B. & A. E. E. Co., Fitzgerald v., 156 Mass. 293 87 
 
 B. & A. E. E. Co., Leary v., 139 Mass. 580 155, 159 
 
 B. & A. E. K. Co., Booth v., 73 N. Y. 38 191 
 
 B. & A. E. E., Daley v., 147 Mass. 101, 112 7 
 
 B. & M. E. E. Co., Shepard v., 158 Mass. 174. 72 
 
 B. & M. E. Co., Young v., 168 Mass. 219 32, 46 
 
 B. & P. E. Co. V. Mackey, 157 U. S. 72 45 
 
 Cadigan v. Glenns Falls Gas, etc., Co., 112 App. Div. 751, 98 
 
 Supp. 954 195 
 
 C, B. & Q. Ey. Co., Money v., 49 HI. App. Ct. Eep. 105 13 
 
 C, C, C. & St. L. Ey. Co., Narramore v., 96 Fed. Eep. 298 170 
 
 C. V. E. E. Co., McGovern v., 123 N. Y. 280, 287 48 
 
 Cairncross v. Pewaukee, 78 Wis. 66 209 
 
 Cambridge, Coughlan v., 166 Mass. 268 6 
 
 Cambridge, Lyons v., 132 Mass. 534 133 
 
 Cambridge, McCabe v., 134 Mass. 484 132, 141 
 
 Cambridge, McNulta v., 130 Mass. 275 134 
 
 Campbell, Flynn v., 160 Mass. 128 52 
 
 Campbell, L. & N. Ey. Co. v., 97 Ala. 147 46 
 
 Campbell v. L. & N. Ey. Co., 109 Ala. 520 46 
 
 Canney v. Walkeine, 51 C. C. A. 53, 113 Fed. 66, 58 L. E. A. 33. . 76 
 
 Canterbury v. Boston, 141 Mass. 215 142, 144 
 
 Cape Ann Anchor Wks., Haskell v., 178 Mass. 485 34 
 
 Cappaso v. Woolfolk, 163 N. Y. 472 - • 61 
 
 Carberry v. Sharon, 166 Mass. 32 141 
 
 Carey v. Manhatten Ey. Co., 101 Supp. 631 102 
 
 Carlson v. N. W. Tel. Ex. Co., 63 Minn. 438 54 
 
'xvi Table of Oases. 
 
 Pags 
 Carlson v. United Engineering, etc., C!o., 113 App. Div. 371, 98 
 
 Supp. 1036 69, 86, ^6, 107 121 
 
 Caron v. B. & M. Ry. Co., 164 Mass. 523 228, 233 
 
 Carpenter, Sheldon v., 4 N. Y. 579 2?'5 
 
 Carria v. Ingalls, 12 Wend. 70 212 
 
 Carrigan v. Washburn & Moen Mfg. Co., 170 Mass. 79 159 
 
 iCarroU, Ala. Gt. So. Ey. Co. v., 97 Ala. 126 45 
 
 Carroll v. Willeutt, 163 Mass. 221 31, 37, 73, 109 
 
 Carter v. Clarke, 78 L. T. 76. 35 
 
 Carter v. Drysdale, 12 Q. B. D. 91 136, 141 
 
 Cashman v. Chase, 156 Mass. 342 69, 74, 83, 85, 87, 93 106 
 
 Case, Haley v., 142 Mass. 316-322 159 
 
 -Cataract Con. Co., Mancuso 'v., 87 Hun, 519 61 
 
 •Cavagnaro v. Clark, 171 Mass. 359 105 
 
 Cavendish Spinning Co., Bromley v., 2 L. T. R. 88 35, 40 
 
 Cent. Ins. Co., Seavey v., 1 1 Mass. 541 41 
 
 Cent. Vermont Ry. Co., McGovern v., 123 N. Y. 287 48, 191 
 
 Chadwick v. Brewster, 15 Supp. 598 165 
 
 Chaffee v. Erie R. R. Co., 73 Supp. 908, 68 App. Div. 578 30 
 
 ■ Chambliss v. Mary Lee Coal Co., 104 Ala. 655 119 
 
 Chase, Cashman v., 156 Mass. 342 69, 74, 83, 85, 87, 93, 106 
 
 Chemical Paper Co., Meunier v., 180 Mass. 109 166 
 
 Cheney, Hale v., 169 Mass. 268 148 
 
 Chicago & Alton Ry. Co. v. May, 108 111. 288 54 
 
 Chicago, etc., Ry. Co. v. Kelly, 156 111. 17 238 
 
 Chicago, etc., Ry. Co. v. Pontius, 157 U. S. 209 19 
 
 Chick, Greenstein v., 187 Mass. 159 97, 130 
 
 iChiekering, Marsh v., 101 N. Y. 396 I57, lei, 166 
 
 Chisholm v. Manhattan Ry. Co., 116 App. Div. 320, 101 Supp. 
 
 622 24, 59, 138, 139, 143, 196, 202, 216 
 
 Church V. Appelby, 58 L. J. Q. B. 144, 5 L. T. R. 88 193 
 
 City Coal Co., Murphy v., 172 Mass. 32 65 
 
 Citrone v. O'Rourke Eng. & Con. Co., 99 Supp. 241 163 
 
 City of Jamestown, Walden v., 178 N. Y. 213 140 
 
 City of Oswego, Forsyth v., 114 App. Div. 616 I34 
 
 City of New York, McKnight v., 106 N. Y. 35 129 
 
 City of Greeley v. Foster, 32 Col. 293 40 
 
 City of Troy, Blount v., 110 App. Div. 609 140 
 
 Clare v. N. Y. & N. E. R. Co., 172 Mass. 211 10, 213, 218, 220, 223 
 
 Clapp v. Kemp, 122 Mass. 481 7 
 
 Clark, Cavagnaro v., 171 Mass, 359 J05 
 
 Clark, Carter v., 78 L. T. 76 35 
 
 Clark, Salvari v., 187 Mass. 229. 
 
 IDS 
 
Table of Cases. xvii 
 
 Page 
 
 Clarke v. Holmes, 7 H. & N. Exchequer Eep. 937 158, 165 
 
 Clark V. Merchants, etc., Co., 151 Mass. 352 10 
 
 Clark V. N. Y., P. & B. R. Co., 160 Mass. 39 10 
 
 Clark, O'Connell v., 22 App. Div. 466, 48 N. Y. Supp. 74 39, 166 
 
 Clark, Reese v., 146 Pa. 465 155 
 
 Clark, Wyman v., 180 Mass. 173 46 
 
 Clarkson v. Musgrave, 9 Q. B. D. 386 5, 141 
 
 Claxton V. Mowlen ( 1888), 4 Times L. Rep. 756 75 
 
 Clements v. A. G. S. R. R. Co., 127 Ala. 166, 28 So. 643 42, 32 
 
 Clinton v. Conroy, 158 Mass. 318 220 
 
 Coal Creek Mining Co. v. Davis, 90 Tenn. 711 54 
 
 Goes Wrench Co., Jarvis v., 177 Mass. 170 99 
 
 Cochran Chemical Co., Dane v., 164 Mass. 453 7 
 
 Coffee V. N. Y., N. H. & H. Co., 155 Mass. 21, 22 43, 44, 61 
 
 Coger, Hussey v., 112 N. Y. 618 30, 51 
 
 Cogan V. Burnham, 175 Mass. 391 32, 133 
 
 Cohn, Townsend v., 7 Civ. Pro. 57 214 
 
 Col. Midland Ry. Co. v. O'Brien, 16 Colo. 319 23 
 
 Col. Milling & Elevator Co. v. Mitchell, 26 Col. 284 10, 22 
 
 Cole, McLean v., 175 Mass. 5 33 
 
 Cole, Willis v., 9 Colo. 159 23 
 
 Cole V. Lawrence Mfg. Co., 178 Mass. 295 99 
 
 Columbia (D. of) v. McElligott, 117 U. S. 621 165 
 
 Commonwealth v. Hartnett, 3 Gray, 450 4 
 
 Comp. Gen. Trans., Homer Ramsdell Co. v., 182 U. S. 406 19 
 
 Comstoek, Bass v., 38 N. Y. 21 214 
 
 Coney Island & B. R. Co., Murphy v., 65 App. Div. 546, 73 Supp. 
 
 318 51 
 
 Conn. River Ry. Co., Brouilette v., 162 Mass. 198 45 
 
 Conn. River Mfg. Co., Prlndible v., 160 Mass. 131 33, 70 
 
 Oonn. River Ry. Co., Lawless v., 136 Mass. 1 33,. 52 
 
 Conn. River Co., Basset v., 150 Mass. 178 223 
 
 Conn. River Ry. Co., Bowers v., 102 Mass. 312 43, 46 
 
 Connolly v. Hamilton Woolen Co., 153 Mass. 156 148 
 
 Connolly v. Hyams, 176 N. Y. 403 128 
 
 Connoly v. Waltham, 156 Mass. 368 108 
 
 Connor, Admr., Hunt, Receiver, v., 26 Ind. App. Ct. 41, 59 N. E. 
 
 50 5 
 
 Connors v. Lowell, 158 Mass. 336 142 
 
 Conroy v. Clinton, 158 Mass. 318 220 
 
 Continental Ins. Co., Walters v., 5 Hun, 343 221 
 
 Coon, Keating v., 102, App. Div. 112, 92 Supp. 474 105, 204 
 
 Cook, Woodward Iron Co. v., 124 Ala. 349 6 
 
sviii Table op Oases. 
 
 Page 
 
 Cook V. Ry. Co., 72 Ga. 48 14 
 
 Cbpithorne v. Hardy, 173 Mass. 400 41 
 
 Cordage Co., Eooney v., 161 Mass. 153 143 
 
 Cornell, Davidson v., 132 N. Y. 228 158 
 
 Coming v. Burden, 15 Howard U. S. 267 40 
 
 Cotzenhausen, White v., 129 U. S. 329 4 
 
 Coughlan v. Cambridge, 166 Mass. 268 6, 147 
 
 Coughlan v. Boston Tow Boat Co., 151 Mass. 92 9 
 
 Counsel v. Hall, 145 Mass. 468 163 
 
 Cowles V. Richmond, etc., Ry. Co., 84 N. C. 309 54 
 
 Cowrey, Goslit v., 8 Super. Ct. 132 213 
 
 Cozier, Bartlett v., 17 Johns. 438 211 
 
 Crage, De Vito v., 165 N. Y. 378 30 
 
 Crawford, L. & N. Ry. Co. v., 89 Ala. 245 119 
 
 Crawford Laundry Machine Co., Meagher v., 172 Mass. 324 65 
 
 89, 94, 111 
 
 Cregan v. Marston, 126 N. Y. 568 30, 234 
 
 Cripps V. Judge, 13 Q. B. D. 583 39 
 
 ; Crispin v. Babbitt, 81 N. Y. 516 49, 51, 52, 59 
 
 Crocker, Kansas City M. & B. R. R. Co. v., 95 Ala. 412 119 
 
 Cross V. Elmira, 86 Hun, 467 140 
 
 Crowley v. Cutting, 165 Mass. 436 78 
 
 Crown V. Orr, 140 N. Y. 450 153, 156, 159, 191 
 
 Crutchfield v. Richmond D. R. Co., 76 N. C. 320 155 
 
 Cullen V. Norton, 126 N. Y. 1 51, 52, 59, 63, 64 
 
 Culver V. Ala. Midland R. Co., 108 Ala. 330 10, 74 
 
 Gumming N. P. A., Steam Fitters & Helpers v., 170 N. Y. 315 19 
 
 Cunard S. S. Co., McCampbell v., 144 N. Y. 552 30, 31 
 
 Cunningham v. Atlas Tack Co., 187 Mass. 57 107 
 
 Cunningham v. Lynn & Boston S. R. Co., 170 Mass. 298.69, 88, 116, 148 
 
 Curran v. Manhattan Ry. Co., 103 Supp. 351 59, 202, 216 
 
 Curry v. Buffalo, 135 N. Y. 336 139 
 
 Curtice Bros. Co., Mull v., 74 App. Div. 561, 77 Supp. 813 157, 161 
 
 Cutting, Crowley v., 165 Mass. 436 75 
 
 Cutting, Harnois v., 174 Mass. 398 32, 34 
 
 D' Aries (Les Successurs) v. Freedman, 53 Supr. 518 210 
 
 D. and H. R. Co., Arnold v., 125 N. Y. 15 152, 156, 157 
 
 D., L. & W. R. R. Co., Williams v., 116 N. Y. 628 158, 169 
 
 D., L. & W. R. R. Co., McQuigan v., 122 N. Y. 618 156, 191 
 
 Dacey v. Old Colony R. Co., 151 Mass. 112, 118 10, 228, 232 
 
 Dale V. W. J. S. & I. Co., 155 Mass. 1 5 
 
 .Daley v. B. & A. R. Co., 147 Mass. 101, 112 7 
 
Table of Cases. xix 
 
 Page 
 
 Dalton V. Salem, 136 Mass. 278 144 
 
 Daly V. SehaflF, 28 Hun, 314 165 
 
 Daly V. Brown, 45 App. Div. 428 51 
 
 Dane v. Cochran Chemical Co., 164 Mass. 453 I 
 
 Dantzler v. DeBardeleben Coal & Iron Co., 101 Ala. 309 74, 88, 207 
 
 Dawson v. Troy, 49 Hun, 322 139 
 
 Davis, Ala. G. S. Ry. Co. v., 119 Ala. 572 214 
 
 Davis V. Broadalbin Knitting Co., 90 App. Div. 567, 86 Supp. 127. 216 
 
 Davis, Coal Creek Mining Co. v., 90 Tenn. 711 54 
 
 Davis V. Detroit, etc., Ky. Co., 20 Mich. 105 205 
 
 Davis, L. & N. R. Co. v., 91 Ala. 487 44, 45 
 
 Davis V. N. Y., N. H. & H. R. R. Co., 159 Mass. 532 65, 72, 98 
 
 Davidson v. Cornell, 132 N. Y. 228 158 
 
 Dawson v. Lawrence Gaslight Co., 188 Mass. 481 108 
 
 Dean v. Smith, 169 Mass. 569 77, 165 
 
 Dean Steam Pump Co., Geloneck v., 165 Mass. 202 27, 73, 77 
 
 De Bardeleben C. & I. Co., Lee v., 102 Ala. 628 119 
 
 De Bardeleben C. & I. Co., Dantzler v., 101 Ala. 309 74, 88, 207 
 
 De Bardeleben Coal & Iron Co., Lovell v., 90 Ala. 13 6, 10 
 
 De Forge v. N. Y., N. H. & H. R. R. Co., 178 Mass. 59 132 
 
 De Graff v. N. Y. C. & H. R. R. Co., 76 N. Y. 125 152 
 
 De Vlto V. Crage, 165 N. Y. 378 30 
 
 De Young v. Irving, 5 App. Div. 449, 38 Supp. 1089 131, 166 
 
 Debil V. N. Y. and E. R. Co., 25 Barb. 182 224 
 
 Deforrest v. Jewett, 88 N. Y. 264 157 
 
 Demers v. Marshall, 178 Mass. 9 28 
 
 Denning v. Gould, 157 Mass. 563 16^.6 
 
 Dennison, Arkerson v., 117 Mass. 407 Ill 
 
 Denver, etc., Ry. Co. v. Driscoll, 12 Col. 520 '. 23 
 
 Denver T. & G. Ry. Co. v. Simson, 15 Col. 55 2.3 
 
 Detroit v. Davis, 20 Mich. 105 '. 205 
 
 Detroit, etc., Ry. Co., Dewey v., 97 Mich. 329 , 44 
 
 Devine v. Boston, etc., Ry. Co., 159 Mass. 348 22S 
 
 Dewey v. Detroit, etc., Ry. Co., 97 Mich. 329 44 
 
 Dexter Sulphite Pulp, etc., Co., Hunt v., lOO App. Div. 119, 91 
 
 Supp. 279 .:.. . . ., 24, 130, ijs 
 
 Diefendorf, Eno v., 102 N. Y. 720. 217 
 
 Dickens v. N. Y. C. R. R. Co., 13 How. 228. 2l3 
 
 Di Stefeno v. Peekskill Lighting, etc., Co., 107 App. Div. 293, 95 ' 
 
 Supp. 179 : 101. 166, .195 
 
 Distr., etc., Ry. Co. v. Moore, 152 Ind. 350 170 
 
 Dixon, Pegram v., 55 L. J. Q. B. 447 36 
 
 Dobbins v. Lang, 181 Mass. 397 , 
 
 l£5 
 
XX Table of Cases. 
 
 Page 
 
 Dolan V. Alley, 153 Mass. 380 130, 142 
 
 Conohue v. Old Colony R. R. Co., 153 Mass. 356 146 
 
 Donohue v. Washburn & Moen Mfg. Co., 169 Mass. 574 28, 148 
 
 Dorrel, Wood v., T. L. R., vol. 2, 550 40 
 
 Dorney v. O'Meill, 49 App. Div. 8, 172 N. Y. 595 48 
 
 Dowd V. B. & A. R. R. Co., 162 Mass. 185 84 
 
 Dowd V. N. Y., O. & W. R. R., 170 N. Y. 459 154, 156, 167, 168 
 
 Downey v. Sawyer, 157 Mass. 418 66 
 
 Downs, Murray v., 161 N. Y. 301 7 
 
 Douin V. Wampanoag Mills, 172 Mass. 221 88 
 
 Dragetto v. Plunkett, 99 Supp. 361 174 
 
 Driscoll V. Fall River, 163 Mass. 105 141, 143 
 
 Driscoll, Denver, etc., Ry. Co. v., 12 Col. 520 23 
 
 Drommie v. Hogan, 153 Mass. 29 33, 142 
 
 Drum V. N. E. Cotton Yarn Co., 180 Mass. 113 39, 46 
 
 Drysdale, Carter v., 12 Q. B. D., 91 136, 141 
 
 Duckworth, Lauter v., 48 N. E. 336 (Ind. App. 1896) 36, 40 
 
 Dudley (Earl of), Griffiths v., 9 Q. B. D. 357 5, 14 
 
 Duffy, Amos v., 71 L. R. 21 176 
 
 Duiibar & Sullivan Dredging Co., Redhead v., 101 Supp. 301 210 
 
 Dunn v. Boston & Northern Ry. Co., 189 Mass. 62 44 
 
 Durant v. Mining Co., 97 Mo. 62 '. 170 
 
 Durant v. Gardner, 10 Abb. 445 221 
 
 Durkin v. Kingston Coal Co., 171 Pa. St. Rep. 193 19 
 
 Dutton, Nye v., 187 Mass. 544 29 
 
 East St. Louis Ry. Co. v. Eggman, 170 111. 538 170 
 
 fiasthampton, Fortin v., 142 Mass. 486 137, 141 
 
 Eastman, McHarg v., 7 Robert, 137 212 
 
 Eaatmaa's Co. of N. Y., Byrne v., 163 N. Y. 461 51 
 
 Eaton V. N. Y. C. & H. R. R. Co., 163 N. Y. 391 45, 233, 234 
 
 Eaves v. Atlantic Novelty Mfg. Co., 176 Mass. 369 69, 104 
 
 Edgar v. N. Y., N. H. & H. Ry. Co., 188 Mass. 420 68 
 
 Edison Co. v. Hudson, 66 111. App. 639 160 
 
 Edison Electric Co., Keenan v., 159 Mass. 379 203 
 
 Edwards v. Low, 63 App. Div. 451, 71 Supp. 1097 212 
 
 Eggman, East St. Louis Ry. Co. v., 170 111. 538 170 
 
 Eglee Bunting Co., Biogioni v., 112 App. Div. 338 102 
 
 Eicholz V. Niagara Falls Hydr. P. & Mfg. Co., 68 App. Div. 441, 
 
 73 Supp. 842 165 
 
 Eidlitz, Kiernan v., 109 App. Div. 726, 96 Supp. 389 194 
 
 Eidlitz, McLaughlin v., 50 App. Div. 518 30 
 
 Eldred v. Mackie, 178 Mass. 1 7 
 
Table of , Oases, , xxi 
 
 Page 
 
 Electrical Co., Hamersehlag v., 16 App. Div. 185 210 
 
 Ellis V. N. Y., L. E. & W. E. R. Co.,. 9? N. Y. p46 47' 
 
 Ellpbury v. N. Y., N. H. & H. R. R, Co., 172 Mass. 130 31, 46' 
 
 Elmer v. Locke, 135 Mass. 575.. 33' 
 
 Elmira, Cross v., 86 Hun, 467. . ., _ 14o' 
 
 Elston, Fleming v., 171 Mass. 187 , 88 
 
 Empire Hardware (5o., Holme v,, 102 App. Div. 505, 92 Supp. ' 
 
 914 128, 215, 21^ 
 
 Empire Wire Co., Baker v., 102 App. Div. 125, 92 Supp. 355. .195, 199* 
 Empire State Dairy Co., Bauer v., 115 App. Div. 71, 100 Supp. 
 
 663 .....:... 23, 19fi( 
 
 Engel V. N.'Y. T. & B. R. Co., 160 Mass. 260..' 3l' 
 
 Eno V. Diefendorf, 102 N. Y. 720. i . . , 217 
 
 Brie Ry. Co., Chaffee v., 73 Supp. 908,, 68 App. Div. 578 30 
 
 Erie Ry. Co., Gibson v., 63 N. Y. 449 .... . 156, 157, 159, 16^ 
 
 Erie Ry. Co., Monigan v., 99 App. Div.' 60?, 91 Supp. 657. .207, 217, 226 
 
 Erie Ry. Co., Mulligan v., 99 App. Div, 499, 91 Supp. 60 9, 217, 21^ 
 
 Estievenard, Pitts. & W. R. Canal Co, v., 53 Ohio, 43 155 
 
 Eureka Paper Co., Rice v., 70 App. t)iir. 336,' 75 Supp. 49 161, 16^ 
 
 Everett, Bailey v., 132 Mass. 441 .......... i 141, 144 
 
 Exch. Fire Ins. Co., Buchanan v., 6l N. Y. 26 43 
 
 Eyre, Sievers v., 122 Fed. 734. . ... .......;. 24 
 
 Fairbanks Canning Co. v. Innes, 24 111. Xpp- Ot. 33, 125 HI. 510. . iS 
 
 Faith V. N. Y. Central, etc., Ry. Co.,' i09 App. Div. 222, 95 ' 
 
 Supp. 774 .'...;.i;l,....'. 63,98,120, 196 
 
 Fallon V. W. E. St. Ry. Co., 171 Mass. 2W. . ; 22§ 
 
 Fall River, DriscoU v., 163 Mass. 105 143 
 
 FallRiverj etc., Telephone Co., Gavin v., 185 Miaa. 78. ! 66 
 
 Fargo, Johnson v., 184 N. Y. 379. . . . . '.. ... . .'. I6 
 
 Farmer, Richmond & D. R. Co. v., 97' Ali. 141 .'. 116 
 
 Famham v. New Bank Coal Co! (1^6), 23 S. O. Sess. Cas., 4th 1 
 
 .Series, 722 .'. ...'.. . . '. . !..'. ; . . . . 7*4 
 
 J'ay V. Wilmarth, 183 Mass. 71 . . .' . . :''.'. ..'..'.... 36 
 
 Fellows, Gunn v., 41 Hun, 257 ...'.; i. '..: .' ...:..,.... 2114 
 
 Feeney v. York Mfg. Co., 189 Mass. 336. . '.J 29, 108, 110, 112 
 
 Perries v. Berlin Mach. Wks., 90 Wis.' 541 . . . : 160 
 
 Finck, Howe v., 17 Q. B. D. 18T. ; ; ... .'.;''..'!.;. .35, 38 
 
 Jink V. Slade, 66 App. Div. 105, 7'4 Supp; 578 ; ... ...30, 31 
 
 Pitchburg Ry. Co., Thyng V., 156^Ma^s/ 113 32, 44, 46 
 
 Fitzgerald v. B. and A. R. R. C6.;^ld6 Massl 293. 87 
 
 Fitzgerald, O'Brien v., 29 Supp. 975. ^*212 
 
 jiske Wharfe & Warehouse Co., M6Leau v., I68 Mass. 472 220 
 
 Flynn v. Campbell, 160 Mass. 1^8 . . J . . . . \ . .■ i 62 
 
xxii Table op Cases. 
 
 Page 
 
 Flynn v. Boston Electric Light Co., 171 Mass. 395 94, 114 
 
 Flynt Granite Co., Spalding v., 159 Mass. 587 46 
 
 Fleming v. Elston, l7l Mass. 187 88, 117 
 
 Flet V. Hunter Arms Co., 74 App. Div. 572, 77 Supp. 752 52, 9& 
 
 Flike V. Ry. Co., 53 N. Y. 549 51 
 
 Flint V. Kelly, 180 Mass. 181 158 
 
 Floettl V. Third Ave. Ey. Co., 10 App. Div. 308, 41 Supp. 792 165 
 
 Foley V. Pettee Mach. Co., 149 Mass. 294, 296 138 
 
 Foley V. Mayor, etc., 1 App. Div. 586, 37 Supp. 465 139 
 
 Follett V. Brooklyn El. Ry. Co., 91 Hun, 296, 36 Supp. 200 221 
 
 Forsyth v. Oswego, 114 App. Div. 616 134 
 
 Fortin v. East Hampton, 142 Mass. 486 137, 141 
 
 Foster v. International Paper Co., 183 N. Y. 50 112 
 
 Foster, City of Greeley v., 32 Col. 293 40 
 
 Foye v. Patch, 132 Mass. 105 223 
 
 France, Yarmouth v., 19 Q. B. D. 647 5, 150, 176, 180, 182, 187 
 
 Freedman, D' Aries (Les Suecessura) v., 53 Supr. 518 210 
 
 Freeman v. Paper Mill Co., 70 Hun, 530, 24 Supp. 403 153 
 
 Freemont v. B. & M. Ry. Co., Ill App. Div. 831, 98 Supp. 179 195 
 
 Fuller (Geo. A.) Co., Walters v., 74 App. Div. 388, 77 Supp. 681. . 51 
 
 Fuller V. Jewett, 80 N. Y. 46 47 
 
 Fuller, Malcolm v., 152 Mass. 160 63, 72, 76, 87, 95 
 
 Fuller V. N. Y., N. H. & H. R. R. Co., 175 Mass. 124 31, 155 
 
 Fulton Bag, etc., Co. v. Wilson, 89 Ga. 318 14 
 
 G. and P. Mfg. Co., Buckley v., 113 N. Y. 540 15T 
 
 Gabler, Berthelson v.. Ill App. Div. 142, 97 Supp. 421 103, 111 
 
 Gabrielson v. Waydell, 135 N. Y. 1 51, 119 
 
 Gall, McAulliff v., 180 Mass. 361 148, 51 
 
 Gallenkamp v. Garvin Machine Co., 91 App. Div. 141 174 
 
 Galloway v. Western Ry. Co., 57 Ga. 512 14 
 
 Galveston, etc., R. R. Co. v. Smith, 76 Tex. 611 54 
 
 Gardner v. N. E. Tel. Co., 170 Mass. 156 71, 76 
 
 Gardner v. Weymouth, 155 Mass. 595 I37 
 
 Gardner, Durant v., 10 Abb. 445 221 
 
 Garfield & Proctor Coal Co., McClusky v., 180 Mass. 115 166 
 
 Gatti, Prevesi v., T. L. R., vol. 4, 487 136, 141 
 
 Gavin v. Fall River Automatic Telephone Co., 185 Mass. 78 66 
 
 Geloneck v. Dean Steam Pump Co., 165 Mass. 202 27, 73, 77 
 
 Gen. S. N. Co., Shaflfers v., 10 Q. B. D. 356 69, 74, 85 
 
 Geogan v. Atlas S. S. Co., 146 N. Y. 369 51 
 
 George, Pierce v., 108 Mass. 78 4j 
 
 Georgia Pacific R. R. Co. v. Brooks, 84 Ala. 138 32, 40 42. 
 
Table of Oases. xxiif 
 
 Page- 
 
 Gerb v. MetropoTitan Ctoll. Co., 63 Supp. 513, 30 Misc. 314 210 
 
 Gibbs V. Great Western Ry. Co., 12 Q. B. D. 208 5, 231 
 
 Gibson v. Erie Ey. Co., 63 N. Y. 449 156, 157, 159, 169- 
 
 Gilbert, Adasken v., 165 Mass. 443 31, 83 
 
 Gilbert, 111. Cent. Ry. Co. v., 107 111. 354 170 
 
 Gilman v. Great Eastern Ry. Co., 13 Allen, 440 52 
 
 Glenns Falls Gas, etc., Co., Cadigan v., 112 App. Div. 751, 98 
 
 Supp. 954 195 
 
 Glenns Falls Cement Co., Schermerhorn v., 94 App. Div. 600 9, 113 
 
 Same, Vaughn v., 105 App. Div. 136, 93 Supp. 979 24, 193, 199 
 
 Gmaehle v. Rosenberg, 40 Misc. 267, 81 Supp. 930 12 
 
 Gmaehle v. Rosenberg, 80 Supp. 705, 80 App. Div. 541 
 
 11, 132, 139, 217 
 
 Gmaehle v. Rosenberg, 178 N. Y. 147 4, 9, 11, 20, 57, 59, 138 
 
 Gmaehle v. Rosenberg^ 83 App. Div. 339, 82 Supp. 366 11, 19 
 
 Golden, Hudler v., 36 N. Y. 446 4 
 
 Golden v. Sieghardt, 33 App. Div. 161, 53 Supp. 460 30 
 
 Goodnow V. Walpole Emery Co., 146 Mass. 261, 267 148 
 
 Goodrich, Austin v., 49 N. Y. 266, 30 Misc. 314 211 
 
 Goodrich v. N. Y. C. & H. R. Ry. Co., 116 N. Y. 398 47, 234 
 
 Goodwin, Bradbury v., 108 Ind. 206 lofi 
 
 Goodwin, Benson v., 147 Mass. 237 52 
 
 Goslit V. Cowrey, 8 Supr. Ct. 132 213 
 
 Gotlieb V. N. Y., etc., Ry. Co., 100 N. Y. 462 45, 47 
 
 Gould, Denning v., 157 Mass. 563 lo6 
 
 Grace,' Welch v., 167 Mass. 590 38 
 
 Grand Trunk Ry. Co., Willis v., 60 Maine, 488 14 
 
 Granite R. R. Co., Leslie v., 172 Mass. 468 33 
 
 Granville (Earl) , Baddeley v., 19 Q. B. D. 423 15, 170' 
 
 Grasso v. Holbrook, Cabot & Daly Co., 102 App. Div. 49, 92 
 
 Supp. 474 125, 132, 138 
 
 Great Eastern R. W. Co., Gilman v., 13 Allen, 44 52 
 
 Great Western Ry. Co., Gibbs v., 12 Q. B. D. 208 5 
 
 Graves v. Brewer, 4 App. Div. 327, 38 Supp. 566 169 
 
 Green v. Hauser, 31 St. Rep. 17 217 
 
 Green v. Smith, 169 Mass. 485 87, 102 
 
 Greenlee v. Southern Ry. Co., 30 Southeastern Rep. N. C. 115 170 
 
 Greenstein v. Chick, 187 Mass. 157 97, 130 
 
 Gregory v. American Thread Co., 187 Mass. 239 16ti 
 
 Griffiths V. London & St. Katharine Docks Co., 13 Q. B. D. 260. . 182 
 
 Griffiths V. The Earl of Dudley, 9 Q. B. D. 357 5, 14, 58 
 
 Grimaldi v. Lane, 177 Mass. 565 100 
 
 Gross, Birmingham Furnace & Mfg. Co. v., 97 Ala. 220 
 
 SO- 
 
xxiv Table of Cases. 
 
 Page 
 
 Groveland, Whitman v., 131 Mass. 553 141, 146 
 
 Guilmartin v. Solvay Process Co., 101 Supp. 118 59, 94, 112 
 
 Gunn V. Fellowes, 41 Hun, 257 214 
 
 Gunn V. N. Y., N. H. & H. R. R. Co., 171 Mass. 417 27, 41, 45 
 
 Gustafson v. Washburn & Moen Mfg. Co., 153 Mass. 468. 43 
 
 Haas V. Balch, 12 U. S. App. 539, 6 C. C. A. 201 1C6 
 
 Hackett v. Masterson, 88 App. Div. 73 31, 112 
 
 Hale V. Cheney, 169 Mass. 268 148 
 
 Haley v. Case, 142 Mass. 316, 322 Ill, 159 
 
 Hall, Alabama G. S. R. R. Co. v., 105 Ala. 599 119 
 
 Hall, Counsel v., 145 Mass. 468 100 
 
 Hamerschlag v. Electrical Co., 16 App. Div. 185 210 
 
 Hamilton Mfg. Co., Moody v., 159 Mass. 70 52 
 
 Hamilton Woolen Co., Connolly v., 153 Mass. 156 148 
 
 Hammstrom v. N. Y. Contracting Co., 52 Misc. 634, 102 Supp. 835 217 
 
 Hand, McKay v., 168 Mass. 270 39 
 
 Handyside, Thrussel v., 20 Q. B. D. 359 176 
 
 Hankins v. N. Y., L. E. & W. Ry. Co., 142 N. Y. 416 51 
 
 Hannan v. Hudson, 7 N. W. 105 75 
 
 Hannigan v. L. & H. Ry. Co., 157 N. Y. 244 47, 152 
 
 Hannigan v. Smith, 28 App. Div. 176, 50 Supp. 845 159, 101 
 
 Hannibal & St. Jo. R. R. Co., Stephens v., 86 Missouri, 221 54 
 
 Harris v. Bait. Machine, etc., Co., 112 App. Div. 389, 98 Supp. 
 
 440 208, 214, 219 
 
 Harris v. Bait. Machine, etc., Co., 188 N. Y. 141 57, 132, 212 
 
 Hart, Ashley v., 147 Mass. 575 22 
 
 Hart V. Naumburg, 123 N. Y. 641 igg 
 
 Hartshorn, Blank v., 37 Hun, 101 214 
 
 Harvard Brewery Co., Buston v., 183 Mass. 438 98 
 
 Hatch V. Peet, 23 Barb. 575 210 
 
 Hathaway, Ledwidge v., 170 Mass. 348 89, 99 
 
 Hatt V. May, 144 Mass. 186 205 
 
 Haske v. Samuelson, 12 Q. B. D. 30 g 20 
 
 Haskell v. Cape Ann Anchor Wks., 178 Mass. 485 34 
 
 Hasty V. Sears, 157 Mass. 123 -j 
 
 Hardy, Copithome v., 173 Mass. 400 41 
 
 Harley v. B. O. M. Co., 142 N. Y. 31 30 
 
 Harmon, Brown v., 21 Barb. 508 212 
 
 Harnois v. Cutting, 174 Mass. 398 32 34 
 
 Harris, Sheffield v., 101 Ala. 564, 569, 570 ' 85 
 
 Hauser, Green v., 31 St. Rep. 17 217 
 
 Havemeyer, Bohn v., 114 N. Y. 296 Ug ^22 
 
Table of Cases. xxv 
 
 Page 
 
 Hawkins v. N. Y.. L. E. & W., 142 N. Y. 416 63, 234 
 
 , Hawley v. Nor. Cent. Ry. Co., 82 N. Y. 370 166 
 
 Hayward, Rettagliata v., 180 N. Y. 512 138 
 
 Hayes v. Hyde Park, 153 Mass. 514 65 
 
 Healey v. Geo. F. Blake Mfg. Co., 180 Mass. 270 130, 138 
 
 Healy v. Ryan, 25 Wk. Dig. 23, 116 N. Y. 657 IGl 
 
 Hearn v. Phillips, T. L. E., vol. 1, 475 141 
 
 Helfenstein v. Medart, 136 Mo. 575 :•'. 166 
 
 Hempstock v. Lackawanna Iron Co., 98 App. Div. 332. 165 
 
 Hendricks v. W., etc., Ry. Co., 52 Ga. 467 14 
 
 Henken, Perschke v., 44 Supp. 265 166 
 
 Herndon, Woodward Iron Co. v., 114 Ala. 191 214 
 
 Herrman, Roesner v., 8 Fed. Rep. 782 14 
 
 Herrick, Minn. & St. Paul Ry. Co. v., 127 U. S. 210 19 
 
 Herring, Runt v., 2 Misc. 105 17 
 
 Heske v. Samuelson, 12 Q. B. D. 30 26 
 
 Hickey v. Taafe, 105 N. Y. 26 153, 157 
 
 Higgins V. W. U. Tel. Co., 8 Misc. 435 7 
 
 Higgins (E. S.) Carpet Co. v. OKeefe, 79 Fed. Rep. 810 169 
 
 Hingiiam Cordage Co., Kenny v., 168 Mass. 278 155 
 
 Higliland Ave. & B. R. Co. v. Walters, 91 Ala. 442 155 
 
 Hills Co., Monylian v., 146 Mass. 586 36 
 
 Hilton, Stringham v.. Ill N. Y. 188 28 
 
 Hissong V. Ry. Co., 91 Ala. 514 14 
 
 Hodges V. Standard Wheel Co., 152 Ind. 680 6 
 
 Hoehn v. Lautz, 94 App. Div. 14, 87 Supp. 921 126, 128, 138 
 
 Hoelter v. McDonald, 82 App. Div. 423 51 
 
 Hoffman v. Holt, 186 Mass. 572 89, 94, 114 
 
 Hofnagle v. N. Y. C. & H. R. R. Co., 55 N. Y. 608 51 
 
 Hogan, Drommie v., 153 Mass. 29 33, 142 
 
 Hogan v. Smith, 125 JNi. Y. 774 30 
 
 Holborn, Mobile & B. Ry. Co. v., 84 Ala. 133 5, 10, 56, 61 
 
 Holbrook Contracting Co., Randall v., 95 App. Div. 336, 88 Supp. 
 
 681 69, 127, 138 
 
 Holbrook Cabot, Daly Co., Grasso v., 102 App. Div. 49, 92 Supp. 
 
 474 125, 132, 138 
 
 Holloway, Reynolds v., 14 L. T. R. 551 35 
 
 HoUsapple v. R., W. & O. R. R. Co., 86 N. Y. 275 17 
 
 Holmes, Clarke v., 7 H. N. Exchequer Rep. 937 158, 165 
 
 Holmes v. Clark, 10 Wendell, 405 161 
 
 Holme V. Empire Hardware Co., 102 App. Div. 505, 92 Supp. 
 
 5J4 128, 215, 217 
 
 Holt, Hoffman v., 186 Mass. 572 89, 94, 114 
 
xxvi Table op Cases. 
 
 Page 
 
 Holyoke Street Ry. Co., Meehan v., 186 Maas. 571 10» 
 
 Holroyd v. Town of Indian Lake, 75 App. Div. 197 210 
 
 Hookham, Ind. and Union Ry. Co. v., 63 Nor. E. Rep. 943 19 
 
 Hood, Howard v., 155 Mass. 391 52 
 
 Hope, Walthams v., 77 N. Y. 42» 223 
 
 Hosmer, Beique v., 169 Mass. 541 34 
 
 Hough V. R. R. Co., 100 U. S. 255 160, 163 
 
 Howard v. Hood, 155 Mass. 391 52 
 
 Howard v. 111. Gent. Ry. Co., 148 Fed. 917 235- 
 
 Howe V. Fink, 17 Q. B. D. 187 35, 38 
 
 Howery v. Lake Shore, etc., Ry. Co., 13 Misc. 341, 8 Supp. 1089 166 
 
 Hudler v. Golden, 36 N. \:. 446 4 
 
 Hudson, Edison Co. v., 66 111. App. 639 166 
 
 Hudson Valley Knitting Co., Stevens v., 69 Hun, 375 161 
 
 Hughes, Bromfield v., 128 Penn. 194 16& 
 
 Hughes V. Russell, 104 App. Div. 144, 93 Supp. 307 61, 68, 76, 79 
 
 120, 142, 145 
 Hunt, Receiver, v. Connor, Admr., 26 Ind. App. Ct. 41, 69 N. E. 
 
 60 5, 6 
 
 Hunt V. Dexter Sulphite Pulp & Paper Co., 100 App. Div. 119, 91 
 
 Supp. 279 24, 130, 168 
 
 Hunter Arms Co., Flet v., 74 App. Div. 672, 77 Supp. 752 52, 96 
 
 Hussey v. Coger, 112 N. Y. 618 30, 61 
 
 Hyama, Connolly v., 176 N. Y. 403 128 
 
 Hyde Park, Hayes v., 153 Maas. 514 65 
 
 Hyde, Stone v., 9 Q. B. D. 76 136 
 
 111. Cent. R. R. Co., Arnold v., 83 111. 273 13 
 
 111. Cent. Ry. Co. v. Gilbert, 107 111. 354 170 
 
 Illinois Paper Co. v. Albert, 49 111. App. 363 165 
 
 Illinois Steel Co. v. Mann, 170 111. 200 160 
 
 Indian Lake (Town of), Holroyd v., 75 App. Div. 197 210 
 
 Ind. & St. L. R. R. Co. v. Watson, 144 Ind. 20 162, 165 
 
 Indianapolis & Union Ry. Co. v. Hookham, 63 N. E. Rep. 943 19 
 
 Ingalls, Carris v., 12 Wend. 70 212 
 
 Interurban St. Ry. Co., McLoughlin v., 101 App. Div. 134, 91 Supp. 
 
 883 61, 68, 76, 80 
 
 Innes, Fairbanks Canning Co. v., 24 111. App. Ct. 33, 125 111. 510. . la 
 
 Irving, De Young v., 5 App. Div. 449, 38 Supp. 1089 16» 
 
 Jackson, Osborne v., 11 Q. B. D. 619 5, 71, 96 
 
 Jarvis v. Goes Wrench Co., 177 Mass. 170 9fr 
 
 Jenkins, Moyle v., 8 Q. B. D. 116, 118 13» 
 
Table of Cases. xxvii 
 
 Page 
 
 Jewett, De Forrest v., 88 N. Y. 264 157 
 
 Jewett, Fuller v., 80 N. Y. 46 47 
 
 Johnson v. Boston, 118 Mass. 114 7 
 
 Johnson v. Fargo, 184 N. Y. 379 15 
 
 Johnson, Admr., v. R. K. Co., 86 Va. 975 13 
 
 Johnson v. Roach, 83 App. Div. 357, 82 Supp. 203.11, 132, 138, 139, 217 
 
 Johnson v. Boston Tow Boat Co., 135 Mass. 209 36 
 
 Jones, Memphis, etc., Ry. Co. v., 2 Head, 517 14 
 
 Joseph V. Geo. C. Whitney Co., 177 Mass. 176 86, 87, 90, 94 
 
 Joyce V. Worcester, 140 Mass. 245 33 
 
 J. S. & E. Ry. Co. V. Southworth, 135 111. 250 13 
 
 Judge, Cripps v., 13 Q. B. D. 518 39 
 
 Kaare v. Troy S. & I. Works, 139 N. Y. 369 156, 157 
 
 Kain v. Smith, 89 N. Y. 375 158 
 
 Kane v. Nor. Cent. R. R. Co., 128 U. S. 91 160, 165 
 
 Kansas City Ry. Co., Broslin v., 114 Ala. 398 206 
 
 Kansas City M. & B. R. R. Co. v. Crocker, 95 Ala. 412 119, 229 
 
 Kansas City M. & B. Ry. Co. v. Burton, 97 Ala. 240 74, 121 
 
 Kansas Pac. Ry. Co. <r. Peavey, 29 Kas. 169 14 
 
 Karr, O'JMeill v., 110 App. Div. 571, 97 Supp. 148 4, 138, 201 
 
 Keogan, Vitto v., 15 App. Div. 329 51 
 
 Keating v. Coon, 102 App. Div. 112, 92 Supp. 474-. 105, 204 
 
 Keenan v. Edison Electric Co., 159 Mass. 379 205 
 
 Keene v. Millwall Dock Co., 8 Q. B. D. 482, 484 136, 138, 141 
 
 Keegan v. Western Ry. Co., 8 N. Y. 175 47 
 
 Keenan v. N. Y. C. R. R. Co., 145 N. Y. 190 51 
 
 Keith V. N. H. & W. R. Co., 140 Mass. 175 44 
 
 Kellard v. Rooke, 19 Q. B. D. 585 76, 88 
 
 Kelly, Flint v., 180 Mass. 181 158 
 
 Kelly V. Calumet Woolen Co., 177 Mass. 128 155 
 
 Kemp, Clapp v., 122 Mass. 481 7 
 
 Kennedy v. Lawrence, 128 Mass. 318 139, 143 
 
 Kennedy v. Merrimack Paving Co., 185 Mass. 442 101 
 
 Kennedy v. Manhattan R. R. Co., 145 N. Y. 95 157, 191 
 
 Kennedy, McCann v. ,167 Mass. 23 37 
 
 Kennedy v. Rutland Ry. Co., 114 App. Div. 286, 99 Supp. 800. . .24, 197 
 
 Kenney v. R. R. Co., 125 N. Y.-422 17 
 
 Kenney v. Shaw, 133 Mass. 501 64 
 
 Kenny v. Hingham Cordage Co., 168 Mass. 278 155 
 
 Kerscheedt, O'Brien v., 29 N. Y. Supp. 973, 61 St. Rep. 470 213 
 
 Kiernan v. Eidlitz, 109 App. Div. 726, 96 Supp. 387 194 
 
 Kingston Coal Co., Durkin v., 171 Pa. St. Rep. 193 19 
 
xxviii Table of Cases. 
 
 ^ Page 
 
 Kirk, Simone v., 57 App. Div. 461, 173 N. Y. 7 51, 62 
 
 Kilkin v. N. Y. C, etc., R. R. Co., 76 App. Div. 529 168 
 
 Kimmer v. Webber, 151 N. Y. 417 30, 79 
 
 King, Smith v., 74 App. Div. 1 158 
 
 Kings Windsor Cement Co., Moynehan v., 168 Mass. 450 41 
 
 Kirkpatriek v. N. Y. C, etc., Ry. Co., 79 N. Y. 240 47 
 
 Kleps V. Bristol Mfg. Co., 107 App. Div. 488, 95 Supp. 337 8, 215 
 
 217, 220 
 
 Kleyle v. City of Oswego, 109 App. Div. 330 141 
 
 Knight, Murray v., 156 Mass. 518 22, 220 
 
 Knight v. Overman Wheel Co., 174 Mass. 455 69, 77, 120 
 
 Knisley v. Pratt, 148 W. Y. 372 153, 157, 169, 170, 171, 192 
 
 Keren v. Natl. Conduit, etc., Co., 82 App. Div. 527 166 
 
 Krall v. New York, 44 App. Div. 259, 60 Supp. 661 139, 218 
 
 Kyle, Tenn. C. & I. Co. v., 93 Ala. 1 4& 
 
 Lackawanna Steel Co., Quinlan v., 107 App. Div. 176, 94 Supp. 
 
 942 61, 80, 85, 92, 93, 94, 114, 115, 120 
 
 L. and H. R. R. Co., Hannigan v., 157 N. Y. 244 47, 152 
 
 L. and H. R. R. Co., Sisco v., 145 N. Y. 296 152 
 
 L. & N. Ry. Co. V. Lahr, 86 Tenn. 335 64 
 
 L. & N. Ry. Co., Wilson v., 85 Ala. 269, 272 22 
 
 L. & N. Ry. Co. v. Davis, 91 Ala. 487 44 
 
 L. & N. Ry. Co. V. Pearson, 97 Ala. 211 45 
 
 L. & N. Ry. Co. V. Campbell, 97 Ala. 147 46 
 
 L. & N. Ey. Co., Campbell v., 109 Ala. 520 46 
 
 L. & N. Ry. Co., Perdue v., 10 Ala. 635 46 
 
 L. & N. Ry. Co. V. York, 128 Ala. 305 119 
 
 L. & N. Ry. Co., Binion v., 98 Ala. 570 46 
 
 L. & N. Ry. Co., Boland v., 106 Ala. 641 46 
 
 L.. & N. Ry. Co., Boland v., 96 Ala. 626 48. 
 
 L. & N. Ry. Co. V. Trammell, 93 Ala. 350 ,. 119 
 
 L. & N. Ry. Co. V. Markee, 103 Ala. 160 119 
 
 L. & N. Ry. Co. V. Crawford, 89 Ala. 245 119 
 
 L. & N. Ry. Co. V. Watson, 90 Ala. 68 119 
 
 Ladd V. Brockton St. Ey. Co., 180 Mass. 454 148, 155 
 
 Lahr, L. & N. Ry. Co. v., 86 Tenn. 335 64 
 
 Lake Erie & Western Ry. Co., Tullis v., 175 U. S. 348 19 
 
 Lake Shore, etc., Ry. Co., Lowery v., 13 Misc. 341, 8 Supp. 1089. . . 166 
 
 Lake Shore, etc., Ry. Co. v. Hessions, 150 111. 586 238 
 
 Lamson v. Am. Axe & Tool Co., 177 Mass. 144 156, 159 
 
 Lane, Grimaldi v., 177 Mass. 585 100 
 
 Lang, Dobbins v., 181 Mass. 397 155 
 
Table of Cases. xxir 
 
 Page 
 
 Langley v. Wheelock, 181 Mass. 471 155- 
 
 Laning v. N. Y. C, etc., Ry. Co., 49 N. Y. 521 51, 16a 
 
 Larkin v. Washington Mills Co., 45 App. Div. 6 165 
 
 Lathem, Tate v., 1 Q. B. D. 502, 506 27, 48 
 
 Lauro v. Standard Oil Co., 74 App. Div. 4, 76 Supp. 800 8 
 
 Lauter v. Duckworth, 48 N. E. 336 (Ind. App. 1897) 36, 40 
 
 Lautz, Hoehn v., 94 App. Div. 14, 87 Supp. 921 .126, 128, 138 
 
 Law, Edwards v., 63 App. Div. 451, 71 Supp. 1097 212' 
 
 Lawless v. Conn. River Ry. Co., 136 Mass. 1 33, 52' 
 
 Lawrence, Kennedy v., 128 Mass. 318 143* 
 
 Lawrence Gaa Light Co., Dawson v., 188 Mass. 481 108 
 
 Lawrence Mfg. Co., Cole v., 178 Mass. 295 99' 
 
 Lee V. De Bardeleben Coal & Iron Co., 102 Ala. 628 119 
 
 Leep V. Ry. Co., 58 Ark. 407 19' 
 
 Lee V. Stirling Silk Mfg. Co., 47 Misc. 182 172 
 
 Lee V. Stirling Silk Mfg. Co., 101 Supp. 78 173 
 
 Leary v. B. & A. R. Co., 139 Mass. 580 155, 159 
 
 Ledwidge v. Hathaway, 170 Mass. 348 133 
 
 Leeds v. N. Y. Tel. Co., 64 App. Div. 484, 72 Supp. 250 213 
 
 Lehmaier, Marino v., 173 N. Y. 530 171 
 
 Le Moine v. Aldrieh, 177 Mass. 89 155 
 
 Leighton, Ropson v., 187 Mass. 432 65, 110 
 
 Leslie v. Granite R. R. Co., 172 Mass. 468 33^ 
 
 Lldgerwood Mfg. Co., Rosin v., 89 App. Div. 245, 86 Supp. 49. . 
 
 * 5, 9, 11, 57, 138 
 
 Liffin V. Beverly, 145 Mass. 549 142 
 
 Lilly V. N. Y., etc., Ry. Co., 107 N. Y. 566, 573 417 
 
 Litchfield Goal Co. v. Taylor, 81 111. 590 170- 
 
 Litchfield v. Buffalo P. & R. Ry. Co., 73 App. Div. 1, 76 Supp. 80. . 30' 
 
 Littlewood v. Mayor, 89 N. Y. 24 ' 224 
 
 Lloyd, O'Brien v., 43 N. Y. 248 223 
 
 Locke, Elmer v., 135' Mass. 575 33 
 
 Lockwood V. R. R. Co., 17 Wal. 359 17 
 
 Long Cove Flat Rock Co., Allison v., 75 App. Div. 267 158 
 
 Longprey v. Yates, 31 Hun, 432 ^ 221 
 
 Louisville Ry. Co. v. Orr, 91 Ala. 548 14 
 
 Loughran v. Bremer, 113 Ala. 509 10, 213 
 
 Logan, McNamara v., 100 Ala. 187 47 
 
 Long Island Ry. Co., McCosker v., 84 N. Y. 77 51, 99, 107 
 
 London & St. Katharine Docks Co., Griffiths v., 13 Q. B. D. 260; . 182 
 
 London & Sou. West. Ry. Co., Osborne v., 21 Q. B. D. 221 176 
 
 Look, O'Brien v., 171 Mass. 36 71, 88, 90, 94 
 
 Louisville, etc., Ry. Co. v. Davis, 91 Ala. 487 44, 45. 
 
Table of Oases. 
 
 Page 
 
 Loughlin v. State, 105 N. Y. 159 51, 52, 59 
 
 Louis V. N. Y., N. E. Ry. Co., 153 Mass. 73 159 
 
 Lovell V. De Bardeleben Coal Co., 90 Ala. 13 6, 10 
 
 Low V. Wakefield, 185 Mass. 214 108, 160 
 
 Lowell Bleachery, Roaeh v., 181 Mass. 480 90, 93, 94, 97 
 
 Xowell, Connors v., 158 Mass. 336 142 
 
 Lowell, Shea v., 132 Mass. 187 142 
 
 Ludlow Mfg. Co., Brady v., 154 Mass. 468 220, 221 
 
 Ludlow Valve Mfg. Co., Wynkoop v., 112 App. Div. 729, 98 Supp. 
 
 1076 195, 196, 199 
 
 Xyneh v. Allen, 160 Mass. 248 31, 36, 37, 38, 41, 146 
 
 Lynn & Boston S. E. Co., Cunningham v., 170 Mass. 298 
 
 69, 88, 116, 148 
 
 Lyons v. Cambridge, 132 Mass. 534 133 
 
 Lyons, N. Y., L. E. & W. Ry. Co. v., 119 Penn. St. 324 158 
 
 Mackay v. Watson (1897), 23 Sc. Sess. Cas. 4th Series 383 26 
 
 Mackey, B. & P. R. Co. v., 157 U. S. 72 45 
 
 Mackey, Missouri Ry. Co. v., 127 U. S. 205 19 
 
 Mackie, Eldred v., 178 Mass. 1 7 
 
 llackin v. B. & A. R. R. Co., 135 Mass. 201 44 
 
 Madigan v. Oceanic Steam Navigation Co., 82 App. Div. 202 61 
 
 Mahoney v. N. Y. & N. E. Ry. Co., 160 Mass. 573 70, ,77 
 
 Mahoney v. Oil Co., 76 Hun, 579, 28 Supp. 196 52 
 
 Mahoney v. Bay State Pink Granite Co., 184 Mass. 287 65, 74, 121 
 
 Malcolm v. Fuller, 152 Mass. 160 63, 72, 76, 87, 95 
 
 Mancuso v. Cataract Constr. Co., 87 Hua, 519 51 
 
 Manhattan Ry. Co., Kennedy v., 145 N. Y. 95 157 
 
 Manhattan Ry. Co., Chisholm v., 116 App. Div. 320, 101 Supp. 622 
 
 24, 59, 138, 139, 143, 196, 202, 216 
 
 Tilanhattan Ry. Co., Curran v., 103 Supp. 351 59, 202, 216 
 
 Manhattan Ry. Co., McHugh v., 179 N. Y. 378 
 
 61, 65, 68, 69, 88, 91, 92, 94, 97, 120 
 
 Manhattan Ry. Co., Smith v., 98 Supp. 1 201 
 
 Manhattan Ry. Co., Ward v., 95 App. Div. 437, 88 Supp. 758 200 
 
 Mann, Illinois Steel Co. v., 170 111. 200 160 
 
 Manufg. Co. v. Morrisey, 40 Ohio, 148 160 
 
 Mapes Reeves Con. Co., Tremblay v., 169 Mass. 284 165 
 
 Marean v. N. Y., S. & W. R. Co., 167 Pa. 220 155 
 
 Marino v. Lehmaier, 173 N. Y. 530 171 
 
 Markee, L. & N. Ry. Co. v., 103 Ala. 160 119 
 
 Marsh v. Chickering, 101 N. Y. 396 157, 161, 168 
 
 Marshall, Demers v., 178 Mass. 9 28 
 
* Table of Cases. xxxi 
 
 Page 
 
 Marston, Creegan v., 126 N. Y. 568 30 
 
 Marston Coal Co., Murphy v., 183 Mass. 385 109 
 
 Martin v. Merchants, etc., Transp. Co., 185 Mass. 487 107 
 
 Mary Lee Cbal Co., Chamhliss v., 104 Ala. 655 119 
 
 Masters v. Troy, 50 Hun, 485 140 
 
 Masterson, Hackett v., 88 App. Div. 73 31 
 
 Matter of Meekin, 164 N. Y. 152 224 
 
 May, Chic. & Alton Ry. Co. v., 108 111. 280 54 
 
 May, Hatt v., 144 Mass. 186 205 
 
 May V. Boston, 150 Mass. 517 133 
 
 May V. Whittier Mach. Co., 154 Mass. 29 36, 38, 220 
 
 Mayor, etc., Foley v., 1 App. Div. 586, 37 Supp. 465 139 
 
 Mayor, etc., White v., 15 App. Div. 442 139 
 
 Mayor, Missano v., 160 N". Y. 123 131, 140 
 
 McAullifle V. Gall, 180 Mass. 361 148, 155 
 
 McBride v. N. Y. Tunnel Co., 101 App. Div. 448, 92 Supp. 282. .. . 
 
 24, 61, 68, 69, 90, 93, 97, 120, 194 
 
 McCabe v. Cambridge, 134 Mass. 484 133, 141 
 
 McCabe v. Shields, 175 Mass. 438 68, 71, 104 
 
 McCampbell v. Cunard S. S. Co., 144 N. Y. 552 31 
 
 McCann v. Kennedy, 167 Mass. 23 37 
 
 McCarthy v. Washburn, 42 App. Div. 252, 58 Supp. 1125 161 
 
 McCauley v. Norcross, 155 Mass. 584 87, 106, 109 
 
 McClusky V. Garfield & Proctor Coal Co., 180 Mass. 115 166 
 
 McConnell v. Morse Iron Works, 187 N. Y. 341 76, 78 
 
 McCosker v. Long Island Ry. Co., 84 N. Y. 774 51, 59, 99, 107 
 
 McCoy V. Inhabitants of Westbury, 172 Mass. 504 99 
 
 McElligott V. Columbia (D. of ) , 117 U. S. 621 163, 165 
 
 McGahey v. Nassau El. Co., 51 App. Div. 281 224 
 
 McGiffin V. Palmers S. & J. Co., 10 Q. B. D. 5 27, 37, 38 
 
 McGinty v. Athol Reservoir Co., 155 Mass. 183 33 
 
 McGovern v. C. V. R. R. Co., 123 N. Y. 280 152, 191 
 
 McGuire v. Bell Telephone Co., 167 N. Y. 208 42 
 
 McHale, McMahon v., 174 Mass. 320 33 
 
 McHarg v. Eastman, 7 Robert, 137 212 
 
 McHush V. Manhattan Ry. Co., 179 N. Y. 378 
 
 61, 65, 68, 69, 88, 91, 92, 94, 97, 120 
 
 McKay v. Hand, 168 Mass. 270 (1897) 39 
 
 McKee v. Tourtellotte, 167 Mass. 69 108, 165-6 
 
 McKinnon v. Ritter Conley Co., 186 Mass. 150 166 , 
 
 McKnight V. City of New York, 186 N. Y. 35 129 
 
 McLean v. Cole, 175 Mass. 5 33 
 
 McLean v. Eiske Wharf & Warehouse Co., 158 Mass. 472 220 
 
xxxii Table of Cases. 
 
 Page 
 
 McLaughlin v. Eidlitz, 50 App. Div. 518 30 
 
 McLaughlin v. Interurban St. Ry. Co., 101 App. Div. 134, 91 
 
 Supp. 883 61, 68, 76, 80 
 
 MeMahon v. McHale, 174 Mass. 320 33 
 
 McNamara v. Liogan, 100 Ala. 187 47 
 
 McNulta V. Cambridge, 130 Mass. 275 133 
 
 McPhee v. Scully, 163 Mass. 216 5, 65, 77 
 
 McPhee v. New Eng. Structural Co., 188 Mass. 141 93 
 
 McQuigan v. D., L. & W. R. R. Co., 122 N. Y. 618 156, 191 
 
 Meagher v. Crawford Laundry Machine Co., 172 Mass. 324 
 
 65, 89, 94, 111 
 
 Meehan v. Atlas Safe Moving Co., 94 App. Div. 306, 87 Supp. 1031 . 108 
 
 Meehan v. Holyoke Street Ry. Co., 186 Mass. 571 66 
 
 Mechanics Mills, Ryalls v., 150 Mass. 190-194.. 4, 5, 9, 22, 34, 52, 62 
 
 Medart, Helfenstein v., 136 Mo. 575 166 
 
 Memphis, etc., Ry. Co. v. Jones, 2 Head, 517 14 
 
 Merchants Co., Clark v., 151 Mass. 352 10 
 
 Merchants, etc., Trans. Co., Martin v., 185 Mass. 487 107 
 
 Merchants Woolen Co., Reynolds v., 168 Mass. 501 31 
 
 Merrimack Paving Co., Kennedy v., 185 Mass. 442 101 
 
 Merry, Wilson v., L. R., 1 Sc. App. 326 22 
 
 Merz V. Brooklyn, 128 N. Y. 617, 33 St. Rep. 517 139 
 
 Metcalf, Scarff v., 107 N. Y. 211 .' 51 
 
 Metropolitan Collecting Co., Gerb v., 30 Misc. 314, 63 Supp. 513. . 210 
 
 Metropolitan Dist. Ry. Co., Woodley v., 2 Exch. Div. 384 182 
 
 Meunier v. Chemical Paper Co., 180 Mass. 109 166 
 
 Mayor, Littlewood v., 89 N. Y. 24 224 
 
 Michael v. Stanton, 3 Hun, 462 7 
 
 Millard v. West End Street R. R. Co., 173 Mass. 512 107, 112 
 
 Miller v. N. Y., N. H. & H. Ry. Co., 175 Mass. 263 31, 46 
 
 Miller v. Solvay Process Co., 109 App. Div. 135, 95 Supp. 1020 144 
 
 Mills V. Parkhurst, 126 N. Y. 89 221 
 
 Millwall Dock Co., Keene v., 8 Q. B. D. 482 136, 138, 141 
 
 Mining Co., Durant v., 97 Mo. 62 170 
 
 Minnesota Iron Co. v. Kline, 199 U. S. 348 228 
 
 Minn. & St. Paul R. R. Co. v. Herrick, 127 U. S. 210 19 
 
 Missano v. Mayor, 160 N. Y. 123 131, 140 
 
 Missouri Ry. Co. v. Mackey, 127 U. S. 205 19 
 
 Mitchell, Col. Milling & El. Co. v., 26 Colo. 284 10, 22 
 
 Mitchell V. Worcester, 129 Mass. 525, 529 , 133 
 
 Mitchell V. Penna. R. R. Co., 1 Am. Law Reg. 717 14 
 
 Mo. Pac. Ry. Co. v. Williams, 75 Tex. 4 ■ 54. 
 
 Mo. Pac. Ry. Co., Bluedorn v., 108 Mo. 439 170 
 
Table of Oases. xxxiii 
 
 Page 
 
 Mo. Pac. Ry. Co., Rush v., 36 Kan. 129 155 
 
 Mobile, etc., Ry. Co. v. Holborn, 84 Ala. 133 '. 5, 56, 61 
 
 Mobile, etc., Ry. Co., Smoot v., 67 Ala. 13 44 
 
 Moody V. Hamilton Mfg. Co., 159 Mass. 70 52 
 
 Moon V. Richmond Ry. Co., 78 Va. 745 54 
 
 Mooney v. Beattie, 180 Mass. 451 31 
 
 Moore, Distr., etc., Ry. Co. v., 152 Ind. 350 170 
 
 Moore, Rodwell v., 180 Mass. 590 46 
 
 Moore, Southern Ry. Co. v., 128 Ala. 434, 29 So. 659 32, 42, 119 
 
 Money v. C, B. & Q. Ry. Co., 49 111. App. Ct. Rep. 105 13 
 
 Monigan v. Brie Ry. Co., 99 App. Div. 603, 91 Supp. 657. .207, 217, 220 
 
 Monyhan v. Hills Co., 146 Mass. 586 36, 38 
 
 Moran v. Munson Steamship Line, 82 App. Div. 487 31 
 
 Morris v. Walworth Mfg. Cq., 181 Mass. 326 38 
 
 Morrisey, Mfg. Co. v., 40 Ohio, 148 160 
 
 Morrison v. Baird, 10 Sc. Sess. Cas., 4th series, 271 5 
 
 Morse, Veginan v., 160 Mass. 142 138, 139 
 
 Morse Iron Works, McConnell v., 187 N. Y. 341 76, 78 
 
 Moyle V. Jenkins, 8 Q. B. D. 116, 118 138 
 
 Moynihan v. Kings Windsor Cement Co., 168 Mass. 450 41 
 
 Mull V. Curtis Bros. Co., 74 App. Div. 561, 77 Supp. 813 157, 161 
 
 Mulligan v. Erie Ry. Co., 99 App. Div. 499, 91 Supp. 60. . . .9, 217, 218 
 
 Murphy v. Coney Id. & B. R. Co., 65 App. Div. 546, 73 Supp. 18. . . 51 
 
 Munson Steamship Line, Moran v., 82 App. Div. 487 31 
 
 Murray v. Downes, 161 N. Y. 301 ., 7 
 
 Murray v. Knight, 156 Mass. 518 22, 220 
 
 Murray v. Rivers, 174 Mass. 46 104 
 
 Murphy v. City Coal Co., 172 Mass. 324 65 
 
 Murphy v. Marston Coal Co., 183 Mass. 385 109 
 
 Murphy v. N. Y., N. H. & H. Ry. Co., 187 Mass. 18.65, 72, 110, 112, 166 
 
 Musgrove, Clarkson v., 9 Q. B. D. 386 5, 141 
 
 Mynard v. Syracuse R. R. Co., 71 N. Y. 180 17 
 
 Narramore v. C, C, C. & St. L. R. R. Co., 96 Fed. Rep. 298 170 
 
 Nash V. South Hadley, 145 Mass. 105 125 
 
 Nassau, McGahey v., 51 App. Div. 281 224 
 
 Nat. Pro. Steam Fitters & Helpers v. Cununings, 170 N. Y. 315 19 
 
 Naumburg, Hart v., 123 N. Y. 641 156 
 
 Neal, O'Connor v., 153 Mass. 281 29, 36, 38 
 
 Neubauer v. R. R. Co., 101 N. Y. 607 51 
 
 New Bng. Fibre Co., Ward v., 154 Mass. 419 7 
 
 New Eng. Cotton Yam Co., Drum v., 180 Mass. 113 39, 46 
 
 New Eng. Structural Co., McPhee v., 188 Mass. 141 93 
 
xxxiv Table of Cases. 
 
 Page 
 
 New Eng. Tel. Co., Gardner v., 170 Mass. 156 71, 76 
 
 Newark Ins. Co., Velie v., 12 Abb. N. C. 309 214, 221 
 
 New York Contracting, etc., Co., Acardo v., 116 App. Div. 793, 102 
 
 Supp. 17 ' '217 
 
 New York C. & H. R. E. Co., Wright v., 25 N. Y. 566 157 
 
 New York, 0. & W. R. R. Co., Dowd v., 170 N. Y. 459. . 154, 156, 167, 168 
 New York C, etc., Ry. Co., Bannon v., 112 App. Div. 552, 98 Supp. 
 
 270 68, 85, 113 
 
 New York C, etc., Ry. Co., Faith v., 109 App. Div. 222, 95 Supp. 
 
 774 63, 98, 120, 196 
 
 New York C. R. R. Co., Laning v., 49 N. Y. 521 51, 160 
 
 New York C. R. R. Co., Kilkin v., 76 App. Div. 529 168 
 
 New York C. & H. Ry. Co., Dickens v., 13 Hun, 228 213 
 
 New York C. R. R. Co., Keenan v., 145 N. Y. 190 51 
 
 New York C. & H. R. R. Co., Hofnagle v., 55 N. Y. 608 51 
 
 New York C. & H. R. R. Co., Davis v., 159 Mass. 532 65, 72, 98 
 
 New York C. &. H. R. R. Co., Nicholas v., 89 N. Y. 370 17 
 
 New York C. & H. R. R. Co., Goodrich v., 116 N. Y. 398 45, 47 
 
 New York C. & H. R. R. Co., Eaton v., 163 N. Y. 391 45 
 
 N. Y. C. & H. R. R. Co., DeGraff v., 76 N. Y. 125 152 
 
 New York C. & H. R. R. Co., Kirkpatrlck v., 79 N. Y. 240 47 
 
 New York, etc., Ry. Co., Lilly v., 107 N. Y. 566, 573 47 
 
 New York, etc., Ry. Co., Gottlieb v., 100 N. Y. 462 45, 47 
 
 New York, etc., Ry. Co., Tanner v., 180 Mass. 572 66, 166 
 
 New York, etc., R. R. Co., Bushby v., 107 N. Y. 374 47 
 
 New York, L. E. & W. Ry. Co.. Powers v., 98 N. Y. 274 157, 169 
 
 New York, L. E. & W. v. Lyons, 119 Penn. St. 324 205 
 
 New York, L. E. & W., Ellis v., 95 N. Y. 546 47 
 
 New York, L. E. & W., Hankins v., 142 N. Y. 416 51 
 
 New York & N. E. Ry. Co., Westoott v., 153 Mass. 460 159 
 
 New York & N. E. Ry. Co., Mahoney v., 160 Mass. 573 70 
 
 New York & N. E. Ry. Co., Clare v., 172 Mass. 211 . .213, 218, 220, 223 
 
 New York, N. H. & H. Ry., Edgar v., 188 Mass. 420 68 
 
 New York, N. H. & H. Ry. Co., Oldaeld v., 14 N. Y. 310 213 
 
 New York, N. H. & H. Ry. Co., Shea v., 173 Mass. 177 130, 132 
 
 New York, N. H. & H. Ry. Co. v. O'Leary, 93 Fed. 737 22 
 
 New York, N. H. & H. Ry. Co., Gunn v., 171 Mass. 417 27, 41 
 
 New York, N. H. & H. Ry. Co., Miller v., 175 Mass. 263 31, 46 
 
 New York, N. H. & H. Ry., Murphy v., 187 Mass. 18 65, 72, 110 
 
 112, 166 
 
 New York, N. H. & H. Ry. Co., Ellsbury v., 172 Mass. 130 31, 46 
 
 New York, N. H. & H. Ry. Co., Coffee v., 155 Mass. 21 43, 44, 61 
 
 New York, N. H. & H. Ry. Co., Fuller v., 175 Mass. 424 31, 155 
 
Table op Oases. xxxv 
 
 Page 
 
 New York, N. H. & H. Ey. Co., DePorge v., 178 Mass. 59 132 
 
 New York P. & B. R. R. Co., Clark v., 160 Mass. 39 10 
 
 New York, Krall v., 44 App. Div. 259, 60 Supp. 661 139, 218 
 
 New York Mills, Wilson v., 107 App. Div. 99, 94 Supp. 1090 24, 196 
 
 New York, Ried v., 97 N. Y. 621 144 
 
 New York Rubber Co., Simpson v., 80 Hun, 415 170 
 
 New York, Shaw v., 82 Supp. 44, 83 App. Div. 212 131, 140 
 
 New York, Sheehy v., 160 N. Y. 139 131, 140 
 
 New York Tel. Co., Leeds v., 64 App. Div. 484, 72 Supp. 250 213 
 
 New York Tube Co., Andrecsik v. (1906), N. J. L. R. A. 1906, N. 
 
 S. No. 4 164 
 
 New York Tunnel Co., McBride v., 101 App. Div. 448, 92 Supp. 
 
 282 24, 61, 68, 69, 90, 93, 97, 120, 194 
 
 New York & E. R. Co., Debbil v., 25 Barb. 182 224 
 
 New York & N. E. Ry. Co., Louis v., 153 Mass. 73 159 
 
 New York & Texas S. S. Co., TuUy v., 10 App. Div.- 463 51 
 
 N. H. & W. R. Co., Keith v., 140 Mass. 175 44 
 
 N. Y., S. & W. R. Co., Marean v., 167 Pa. 220 155 
 
 Niagara Falls Hydraulic Mfg. Co., Eichols v., 73 Supp. 842, 68 
 
 App. Div. 441 165 
 
 Nicholas v. N. Y. C. R. R. Co., 89 N. Y. 370 17 
 
 Nichols Chem. Co., Burns v., 72 Supp. 919, 65 App. Div. 424 153 
 
 Nonantum Worsted Co., White v., 163 Mass. 216 5 
 
 Nor. Cent. Ry. Co., Hawley v., 82 N. Y. 370 166 
 
 Nor. Cent. Ry. Co., Kane v., 128 U. S. 91 160, 165 
 
 Nor. Pac. Ry. Co.^ Tynberg v., 39 Minn. 15 160 
 
 Nor. Pac. Ry. Co. v. Babcock, 154 U. S. 190 160 
 
 Nor. West Tel. Ex. Co., Carlson v., 63 Min. 438 54 
 
 Norcross, Brady v., 174 Mass. 442 69 
 
 Norcross, McCaulay v., 155 Mass. 584 87, 106, 109 
 
 Norton, CuUen v., 126 N. Y. 1 51, 64 
 
 Nute-Hallett Co., O'Brien v., 177 Mass. 422 105, 166 
 
 Nye V. Dutton, 187 Mass. 549 ^ 29 
 
 Obanhein v. Arbuckle, 80 App. Div. 465 161 
 
 O'Brien v. Fitzgerald, 29 Supp. 975 212 
 
 O'Brien v. Kerseheedt, 29 N. Y. Supp. 973, 61 St. Rep. 470 213 
 
 O'Brien v. Lloyd, 43 N. Y. 248 223 
 
 O'Brien v. Look, 171 Mass. 36 71, 88, 90, 94 
 
 O'Brien v. Nute-Hallett Co., 177 Mass. 422 105, 166 
 
 O'Brien, Col. Midland R. R. Co. v., 16 Colo. 319 23 
 
 O'Brien, Reilly v., 53 Hun, 147 51 
 
 O'Brien v. Rideout, 161 Mass. 170 69, 83 
 
xxxvi Table of Cases. 
 
 Page 
 
 O'Brien v. West End R. R. Co., 173 Mass. 105 .: 98, 107 
 
 O'Connell v. Clark, 22 App. Div. 466, 48 Supp. 74 39, 166 
 
 O'Connor v. Neal, 153 Mass. 281 29, 36, 38 
 
 Oil Co., Mahoney v., 76 Hun, 579, 28 Supp. 196 52 
 
 O'Keefe v. Brownell, 156 Mass. 133 41, 88, 116 
 
 O'Keefe, E. S. Higgins Carpet Co. v., 79 Fed. Rep. 810 169 
 
 O'Leary, O'Neal v., 164 Mass. 387 83 
 
 O'Leary, N. Y., N. H. & H. Ry. Co. v., 93 Fed. 737 22 
 
 O'Maley v. South Boston Gas Light Co., 158 Mass. 135 148 
 
 O'Neal V. O'Leary, 164 Mass. 387 83 
 
 O'Neil V. Karr, 110 App. Div. 571, 97 Supp. 148 4, 138, 201 
 
 O'Neil, Swift & Co. v., 187 111. 337 160 
 
 O'Neill, Dorney v., 49 App. Div. 8, 172 N. Y. 595 48 
 
 Old Colony R. R. Co., Dacey v., 151 Mass. 112, 118 10 
 
 Old Colony R. R. Co., Donohue v., 153 Mass. 356 146 
 
 Old Colony R. R. Co., Steffe v., 156 Mass. 262 140, 209, 230 
 
 Old Colony R. R. Co., Trask v., 156 Mass. 298 41 
 
 Oldfield V. N. Y., N. H. & H. Ry. Co., 14 N. Y. 310 213 
 
 Onondaga Bank, Schott v., 49 App. Div. 503 51 
 
 O'Rourke Con., etc., Co., Citrons v., 99 Supp. 241 163 
 
 Orr, Crown v., 140 N. Y. 450 153, 156, 159, 191 
 
 Orr, Louisville R. R. Co. v., 91 Ala. 548 14 
 
 Osborne v. Jackson, 11 Q. B. D. 619 5, 71, 88, 95 
 
 Osborne v. London Sou. West. Ry. Co., 21 Q. B. D. 221 176 
 
 Overmann Wheel Co., Knight v., 174 Mass. 455 69, 77 
 
 Overbaugh v. Wilber, 106 App. Div. 283, 99 Supp. 241 168 
 
 Owens V. Ernst, 1 Misc. 338, 142 N. Y. 661 166 
 
 Pabst, Schlitz v., 57 Minn. 303 163 
 
 Pac. Ry. Co., Rush v., 36 Kan. 129 155 
 
 Palmer, Wyllie v., 137 N. Y. 257 8 
 
 Palmer's Shipbuilding Co., MeGiffin v., 10 Q. B. D. 5 27, 37, 38 
 
 Pantzer v. Tilly Foster Mining Co., 99 N. Y. 366 152, 191 
 
 Paper Mill Co., Freeman v., 70 Hun, 530, 24 Supp. 403 153 
 
 Parker, Bear Mill Creek Co. v., 134 Ala. 293 207 
 
 Parkhurst, Mills v., 126 N. Y. 89 221 
 
 Patch, Foye v., 132 Mass. 105 223 
 
 Patterson v. Pittsburg, etc., Ry. Co., 76 Penn. St. 389 160 
 
 Patton V. Western Ry. Co., 96 N. C. 455 64 
 
 Paul, St. Louis Ry. Co. v., 64 Ark. 83 19 
 
 Pearson, Louisville & N. R. Co., 97 Ala. 211 45 
 
 Peavey, Kan. Pae. Ry. Co. v., 29 Kas. 169 14 
 
Table of Gases. xxxvii 
 
 Page 
 Peekskill Lighting, etc., Co., De Stefeno v., 107 App. Div. 293, 95 
 
 Supp. 179 101, 166, 195 
 
 Peet, Hatch v., 23 Barb. 575 210 
 
 Pegram v. Dixon, 55 L. J. Q. B. 447 36 
 
 Penna. R. R. Co., Mitchell v., I Am. Law Reg. 717 14 
 
 People ex rel. v. Coleman, 121 N. Y. 542 5 
 
 Perdue v. L. & N. Ry. Co., 10 Ala. 535 46 
 
 Perry v. Rogers, 157 N. Y. 351 51 
 
 Perry v. Old Colony Ry. Co., 164 Mass. 296 229 
 
 Persehke v. Henken, 44 Supp. 265 166 
 
 Pettee Mach. Co., Foley v., 149 Mass. 294 138 
 
 Pettus V. Brunswick, etc., R. Co., 35 S. E. 821 (Ga. 1900) 14 
 
 Pewaukee, Cairncross v., 78 Wis. 66 209 
 
 Pizzi T. Reid, 72 App. Div. 162 213 
 
 Phillips, Hearn v., T. L. R., vol. 1, 475 141 
 
 Pierce v. Gteorge, 108 Mass. 78 41 
 
 Piper, Webber v., 109 N. Y. 469 31 
 
 Pioneer M. & W. Co. v. Thomas, 133 Ala. 279 32 
 
 Pittsburg & W. R. Canal Co. v. Estievenard, 52 Ohio, 43 154-5 
 
 Plimpton V. Bigelow, 3 Civ. Pro. 182 217 
 
 Pontius, Chic, etc., Ry. Co. v., 157 U. S. 209 19 
 
 Port Chester, Williams v., 76 Supp. 631, 72 App. Div. 505 135 
 
 Post, Woodbury v., 158 Mass. 140 215 
 
 Powers V. N. Y., L. E. & W. Ry. Co., 98 N. Y. 274 157 
 
 Port Jervis, Barry v., 64 App. Div. 268 134 
 
 Pratt, Knisley v., 148 N. Y. 372 153, 157, 169, 170, 192 
 
 President of Waterford, etc.. Turnpike Co. v. People, 9 Barb. 161 4 
 
 Prevesi v. Gatti, T. L. P., vol. 4, 487 136, 141 
 
 Prindible v. Conn. River Mfg. Co., 160 Mass. 131 33, 70 
 
 Quarman v. Bennet, 6 M. & W. 500 7 
 
 Quartermalne, Thomas v., 18 Q. B. D. 685 
 
 5, 61, 150, 158, 176, 180, 182, 184, 187 
 Quinlan v. Lackawanna Steel Co., 107 App. Div. 176, 94 Supp. 94 
 
 61, 80, 85, 92, 93,'94, 114, 115, 120 
 
 Quirin, Seheir v., 77 App. Div. 624 168 
 
 Rahn v. Standard Optical Co., 110 App. Div. 501 174 
 
 Railroad Co., Blair v., 66 N. Y. 313 17 
 
 Railroad Co., CoSee v., 155 Mass. 1 43, 44, 61 
 
 Railroad Co., Cook v., 72 Ga. 48 14 
 
 Railroad Co., Flike v., 53 N. Y. 549 51 
 
 Railroad Co., HIssong v., 91 Ala. 514 14 
 
xxxviii Table of Cases. 
 
 Page 
 
 Railroad Co., Hough v., 100 U. S. 255 160, 163 
 
 Railroad Co., Kenney v., 125 N. Y. 422 17 
 
 Railroad Co., Laning v., 49 N. Y. 521 51, 160 
 
 Railroad Co., Leep v., 58 Ark. 407 19 
 
 Railroad Co., Lockwood v., 17 Wal. 359 17 
 
 Railroad Co., Neubauer v., 101 N. Y. 607 51 
 
 Railroad Co., Johnson, Admr., v., 86 Va. 975 13 
 
 Railroad Co. v. Spangler, 44 Ohio St. Rep. 471 13 
 
 Ramsdell (Homer) Co. v. Comp. G«n. Trans., 182 U. S. 406 19 
 
 Ramsden, Brook v., 63 L. T. & S. 287, 55 J. P. 262 175 
 
 Randall v. Holbrook Contracting Co., 95 App. Div. 336, 88 Supp. 
 
 681 69, 127, 138 
 
 Rapson v. Leighton, 187 Mass. 432 65, 110 
 
 Rathbun, Smith v., 22 Hun, 150 213 
 
 Ray V. Wallis, 51 J. P. 519 122 
 
 Redhead v. Dunbar & Sullivan Dredging Co., 101 Supp. 301 210 
 
 Reed v. New York, 97 N. Y. 621 144 
 
 Reese v. Clark, 146 Pa. 465 155 
 
 Regan v. Donovan, 159 Mass. 1 31 
 
 Eegling v. Lehmaier, 98 Supp. 642 174 
 
 Reid, Pizzi v., 72 App. Div. 162 213 
 
 Reilly v. O'Brien, 53 Hun, 147 51, 52 
 
 Reilly v. Sicilian Asphalt Paving Co., 170 N. Y. 40 223 
 
 Reilly v. Troy Brick Co., 184 N. Y. 399 195 
 
 Reining v. Buffalo, 102 N. Y. 308 139 
 
 Rettogliata v. Hayward, 180 N. Y. 512 138 
 
 Reynolds v. Barnard, 46 N. E. 703, 168 Mass. 226 (1897) 32, 73, 76, 110 
 
 Reynolds v. Solloway, 14 T. L. R. 551 35 
 
 Reynolds v. Merchants Woolen Co., 168 Mass. 501 31 
 
 Rice v. Eureka Paper Co., 70 App. Div. 336, 75 Supp. 49 161 
 
 Rice v. Eureka Paper Co., 174 N. Y. 385 161, 163 
 
 Richmond, etc., Ry. Co., Cowles v., 84 N. C. 309 54 
 
 Richmond, etc., Ry. Co. v. Hammond, 93 Ala. 181 229 
 
 Richmond, etc., Ry. Co., Moon v., 78 Va. 745 54 
 
 Rideout, O'Brien v., 161 Mass. 170 69, 83 
 
 Richmond D. R. Co., Crutchfield v., 76 N. C. 320 155 
 
 Richmond & D. R. Co. v. Farmer, 97 Ala. 141 119 
 
 Riley v. Tucker, 179 Mass. 190 31 
 
 Riley v. McNulty, 100 Supp. 958 212 
 
 Rima v. Eossie Iron Wks., 120 N. Y. 433 47 
 
 Riola V. N. Y. Central Ry. Co., 97 App. Div. 252 165 
 
 Riou V. Rockport Granite Co., 171 Mass. 162 70, 94, 114 
 
 Rivers, Murray v., 174 Mass. 46 IO4 
 
Table of Cases. xxxix 
 
 Page 
 
 Roach, Johnson v., 83 App. Div. 357, 82 Supp. 203 
 
 11, 132, 138, 139, 217 
 
 Robbins, Rochester Ry. Co. v., 133 N. Y. 242 211 
 
 Robinson, Brannigan v., 61 L. J. Q. B. 202 (1892), 1 Q. B. 344. .35, 36 
 
 Roblin, Williams v., 94 App. Div. 177 9, 13 
 
 Roche V. Lowell Bleaehery, 181 Mass. 480 90, 93, 94, 97 
 
 Roche V. India Rubber, etc., Co., 100 Supp. 1009 109 
 
 Rochester, Werner v., 77 Hun, 33 140, 144 
 
 Rochester Ry. Co. v. Robbins, 133 N. Y. 242 211 
 
 Rochester Ry. Co., Brick v., 98 N. Y. 211 51 
 
 Bockford, etc., Ry. Co. v. Delaney, 82 111. 198 238 
 
 Bockport Granite Co., Riou v., 171 Mass. 162 70, 94, 114 
 
 Rockwell V. Brown, 36 N. Y. 207 233 
 
 Rodwell V. Moore, 180 Mass. 590 46 
 
 Rogers, Perry v., 157 N. Y. 251 51 
 
 Rome (City of), Stedman v., 88 Hun, 279 140 
 
 Rook, Kellard v., 19 Q. B. D. 585 76, 88 
 
 Rooney v. Cordage Co., 161 Mass. 153 148 
 
 Rosebaek v. Aetna Mills, 158 Mass. 379 69, 74, 75, 84 
 
 Rosenberg, Gmaehle v., 178 N. Y. 187 4, 9, 11, 20, 57, 59, 138 
 
 Rosenberg, Gmaehle v., 40 Misc. 267, 81 Supp. 930 12 
 
 Rosenberg, Gmaehle v., 80 App. Div. 541 11, 132, 139, 217 
 
 Rosenberg, Gmaehle v., 83 App. Div. 339, 82 Supp. 336 11, 19 
 
 Roesner v. Hermann, 8 Fed. Rep. 782 14 
 
 Rosin V. Lidgerwood Mfg. Co., 89 App. Div. 245, 86 Supp. 49. .5, 9, 11 
 
 57, 138 
 
 Rossie Iron Wks., Rima v., 120 N. Y. 433 47 
 
 Rourke v. White Moss Colliery Co., 2 C. P. D. 205 7 
 
 Runt V. Herring, 2 Misc. 105 17 
 
 Russell, Hughes v., 104 App. Div. 144, 93 Supp. 307. .61, 67, 76, 79, 120 
 
 142, 145 
 
 Rush V. Mo. Pac. Ry. Co., 36 Kan. 129 155 
 
 R. M. Wilson Mfg. Co., Swartz v., 100 Supp. 1054 163 
 
 R., W. & O. R. R. Co., Hollsapple v., 86 N. Y. 275 17 
 
 R ' W. & O. R. R. Co., Bossout v., 32 St. Rep. 884 17 
 
 Rutland Ry. Co., Kenney v., 114 App. Div. 286, 99 Supp. 800. . .24, 197 
 
 Ryan, Healey v., 116 N. Y. 657, 25 Wk. Dig. 23 181 
 
 Ryan v. Tarbox, 135 Mass. 207 ^^^ 
 
 Ryan v. 3d Ave, Ry. Co., 92 App. Div. 306 59, 63 
 
 Ryalls V. Mechanics Mills, 150 Mass. 190 4, 5, 9, 22, 34, 52^ 
 
 62 
 
 144 
 
 Salem, Dalton v., 136 Mass. 278 
 
 Samuelson, Haske v., 12 Q. B. D. 30 5, 
 
xl Table of Cases. 
 
 Page 
 
 Saunders v. C. of Boston, 167 Mass. 595 133 
 
 Scarflf V. Metealf, 107 N. Y. 211 51 
 
 Schaff, Daly v., 28 Hun, 314 165 
 
 Scheir v. Quirin, 77 App. Div. 624 168 
 
 Schermerhom v. Glens Falls Cement Co., 94 App. Div. 600 9, 13 
 
 Schlisting v. Whitgram, 25 Hun, 626 224 
 
 Schlitz v. Pabst Brewing Co., 57 Minn. 303 163 
 
 Schott V. Onondaga Bank, 44 App. Div. 503 51 
 
 Schradin v. N. Y. Central Ry. Co 215, 228 
 
 Scully, MePhee v., 163 Mass. 216 5, 65, 77 
 
 Seaboard Mfg. Co. v. Wooason, 94 Ala. 143 204 
 
 Sears, Hasty v., 157 Mass. 123 7 
 
 Seavey v. Cent. Ins. Co., 11 Mass. 541 41 
 
 Seybolt v. N. Y., Lake Erie & W. Ry. Co., 95 N. Y. 562 233 
 
 Severson v. Hill, Warner, Fitch Co., 101 Supp. 808 208, 211, 212 
 
 Shaw, Barr v., 10 Hun, 580 214 
 
 Shaw V. Tobias, 3 N. Y. 188 212 
 
 Shaw V. Sheldon, 103 N. Y. 667 157 
 
 Shaw, Kenney v., 133 Mass. 501 64 
 
 Shea v. Wellington, 163 Mass. 364 37 
 
 Sheldon, Shaw v., 103 N. Y. 667 157 
 
 Sherlock v. Sherlock, 66 App. Div. 328, 72 Supp. 712 153 
 
 Shaffers v. Gen. S. N. Co., 10 Q. B. D. 356 69, 74, 75, 85 
 
 Sharon, Carberry v., 166 Mass. 32 141 
 
 Shaw V. City of New York, 82 Supp. 44, 83 App. Div. 212 131, 140 
 
 Shea v. N. Y., N. H. & H. R. Co., 173 Mass. 177 132, 229, 230 
 
 Sheehy v. New York, 160 N. Y. 139 131, 140 
 
 Sheffield v. Harris, 101 Ala. 564 85 
 
 Sheldon v. Carpenter, 4 N. Y. 579 223 
 
 Shepard v. B. & M. Ry. Co., 158 Mass. 174 72 
 
 Shields, McCabe v., 175 Mass. 438 68, 71, 104 
 
 Sicilian Asphalt Paving Co., Reilly v., 170 N. Y. 40 223 
 
 Siedentopp v. Buse, 21 App. Div. 592, 47 Supp. 809 165 
 
 Sieghardt, Golden v., 33 App. Div. 161, 53 Supp. 460 30 
 
 Sievers v. Eyre, 122 Fed. 734 - 24 
 
 Simplex E. Co., Sullivan v., 178 Mass. 35 166 
 
 Simson, Denver T. & G. Ry. Co. v., 15 Colo. 55 23 
 
 Simpson v. New York Rubber Co., 80 Hun, 415 170 
 
 Simons v. Kirk, 57 App. Div. 461, 173 N. Y. 7 51, 62 
 
 Sisco V. L. H. &. R. Co., 145, N. Y. 296 152 
 
 Sitts V. Waiontha Knitting Co., 94 App. Div. 38 174 
 
 Slade, Fink v., 66 App. Div. 105, 74 Supp. 578 30, 31 
 
Table of Oases. xli 
 
 Page 
 Slattery v. Walker & Pratt Co. (1901), 60 N. E. 782, 179 Mass. 
 
 307 28, 110 
 
 Smead v. Central Georgia Ry. Co., 151 Fed. 608 235 
 
 Smith, Bayard v., 17 Wend. 88 213 
 
 Smith V. Baker, 1891 A. C. 325 65, 182, 193 
 
 Smith, Hannigan v., 28 App. Div. 176, 50 Supp. 845 159, 161 
 
 Smith V. Manhattan Ry. Co., 98 Supp. 1 201 
 
 Smith, Galveston, etc., Ry. Co. v., 76 Tex. 611 54 
 
 Smith V. B. W. Backus Lumber Co., 64 Minn. 447 163 
 
 Smith, Dean v., 169 Mass. 569 77, 165 
 
 Smith, Green v., 169 Mass. 485 87, 102 
 
 Smith, Hogan v., 125 N. Y. 774 30 
 
 Smith Iron Co., Allen v., 160 Mass. 557, 29 So. 659 32, 43 
 
 Smith, Kain v., 89 N. Y. 375 158 
 
 Smith, King v., 74 App. Div. 1 158 
 
 Smith V. Rathbun, 22 Hun, 150 213 
 
 Smoot V. Mobile, etc., Ry. Co., 67 Ala. 13 44 
 
 Snowberg v. Wellson Paper Co., 43 Minn. 532 160 
 
 Solomon, Braunberg v., 102 App. Div. 330, 92 Supp. 506. . .68, 69, 102 
 
 Solvari v. Clark, 187 Mass. 229 108 
 
 Solvay Process Co., Miller v., 109 App. Div. 135, 95 Supp. 1020 144 
 
 Solvay Process Co., Guilmartin v., 101 Supp. 118 59, 94, 112 
 
 Southern Ry. Co., Greenlee v., 30 S. E. Rep. N. C. 115 170 
 
 Southern Ry. Co. v. Moore, 128 Ala. 434, 29 So. 659 32, 42, 119 
 
 South Hadley, Nash v., 145 Mass. 105 125 
 
 South Boston Gaslight Co., O'Maley v., 158 Mass. 135 148 
 
 Southworth, J. S. & E. Ry. Co. v., 135 111. 250 13 
 
 Southworth v. Bennet, 58 N. Y. 659 221 
 
 Spain V. St. L. & S. F. Rd. Co., 151 Fed. 522 235 
 
 Spalding v. Flint Granite Co., 159 Mass. 587 46 
 
 Spangler, R. R. Co. v., 44 Ohio St. Rep. 471 13 
 
 Spenser v. Worthington, 44 App. Div. 496, 60 Supp. 873 161 
 
 Standard Oil Co., Lauro v., 74 App. Div. 4, 76 Supp. 800 8 
 
 Standard Oil Co. v. Helmick, 148 Ind. 457 162 
 
 Standard Wheel Co., Hodges v., 152 Ind. 680 6 
 
 Stanton, Michael v., 3 Hun, 462 7 
 
 State V. Avery,. 44 Vermont, 629 41 
 
 State, Loughlin v., 105 N. Y. 159 51, 52, 59 
 
 Stevens, Allen v., 161 N. Y. 122, 143 4 
 
 Steam Fitters & Helpers v. Gumming, 170 N. Y. 315 19 
 
 Stedman v. Rome (C. of), 88 Hun, 279 140 
 
 Steinway, Benzing v., 101 N. Y. 552 153, 191 
 
xlii Table of Cases. 
 
 Page 
 
 Steffe V. Old Colony Ey. Co., 156 Mass. 262 140, 209, 230 
 
 Stevens v. Hannibal & St. Jo. Ry. Co., 86 Missouri, 221 54 
 
 Stevens v. Hudson Valley Knitting Co., 69 Hun, 375 161 
 
 Stone v. Hyde, 9 Q. B. D. 76 136 
 
 Stringham v. Hilton, HI N. Y. 188, 196 28 
 
 St. Louis, etc., Ry. Co. v. Paul, 64 Ark. 83 19 
 
 St. Louis, etc., Ry. Co., Williams v., 119 Mo. 316 205 
 
 Strong, W. & A. Ry. Co. v., 52 Ga. 461 14 
 
 Stuart v. West End Street Ry. Co., 163 Mass. 391 66 
 
 Sullivan v. Baxter, 150 Mass. 261 223 
 
 Sullivan v. Thorndike Co., 175 Mass. 41 75, 158 
 
 Sullivan v. Simplex Electric Co., 178 Mass. 35 166 
 
 Sullivan v. Syracuse, 77 Hun, 440 140 
 
 Swartz V. R. M. Wilson Mfg. Co., 100 Supp. 1054 163 
 
 Swinnerton v. Columbia Ins. Co., 37 N. Y. 174 212 
 
 Sweeny v. Berlin & Jones Env. Co., 101 N. Y. 520 152, 157, 159 
 
 Swift & Co. V. O'Neil, 187 111. 337 160 
 
 Sylvia v. Wampanoag Mills, 177 Mass. 194 155 
 
 Syracuse v. Sullivan, 77 Hun, 440 140 
 
 Syracuse, etc., Ry. Co., Mynard v., 71 N. Y. 180 17 
 
 Taafe, Hickey v., 105 N. Y. 26 153, 157 
 
 Talcott V. Van Veehten, 25 Hun, 565 214 
 
 Tanner v. N. Y., etc., Ry. Co., 180 Mass. 572 66, 166 
 
 Tannheuaer v. Uptigrove, 100 Supp. 1054 163 
 
 Tate V. Lathem (1897), 1 Q. B. D. 502, 506 27, 48 
 
 Taylor, Litchfield Coal Co. v., 81 111. 590 170 
 
 Taylqr, Wesley Coal Co. v., 84 111. 126 170 
 
 Tenn. C. & I. v. Kyle, 93 Ala. 1 46 
 
 Tenu. C. & I., Bridges v., 109 Ala. 287 46 
 
 Terry, Brown v., 67 App. Div. 233, 73 Supp. 733 39 
 
 Third Ave. Ry. Co., Floettl v., 10 App. Div. 308, 41 Supp. 792 165 
 
 Thomas v. Bellamy, 126 Ala. 253 206 
 
 Thomas, Pioneer M. & W. Co. v., 133 Ala. 279 32 
 
 Thorndike Co., Sullivan v., 175 Mass. 41 75 
 
 Thomas v. Quartermaine, 18 Q. B. D. 685 5, 61, 150, 158, 176, 180 
 
 182, 184, 187 
 
 Thrussel v. Handyside, 20 Q. B. D. 359 176 
 
 Thyng v. Fitchburg R. W. Co., 156 Mass. 713 32, 44, 46, 232 
 
 Tilly Poster Mining Co., Pantzar v., 99 N. Y. 368 152, 191 
 
 Todd V. Union Casualty Co., 70 App. Div. 52 209 
 
 Tobias, Shaw v., 3 N. Y. 188 212 
 
 Tourtellotte, McKee v., 167 Mass. 69 108, 165, 166 
 
Table of Oases. xliii 
 
 Page 
 
 Townsend v. Cohn, 7 Civ. Pro. 57 214 
 
 Townsend, Butler v., 126 N. Y. 105 7, 29 
 
 Trask v. Old Colony Ey. Co., 156 Mass. 298 41 
 
 Trammell, L. & N. Ry. Co. v., 93 Ala. 350 119 
 
 T. & P. Ry. Co. V. Archibald, 170 U. S. 665 45 
 
 Tremblay v. Mapea Reeves Constr. Co., 169 Mass. 284 165 
 
 Trimble v. Whitin Mach. Wks., 172 Mass. 150, 51 N. E. 463 32, 69 
 
 Troy, Dawson v., 49 Hun, 322 139 
 
 Troy Brick Co., Reilly v., 184 N. Y. 399 195 
 
 Troy, Si. & I. Works, Kaare v., 139 T^. Y. 369 156, 157 
 
 Troy V. Masters, 50 Hun, 485 140 
 
 Tucker, Riley v., 179 Mass. 190 31 
 
 Tucker, Weed v., 19 N. Y. 433 4 
 
 Tullis V. Lake Erie & W. Ry. Co., 175 U. S. 348 19, 228 
 
 TuUy V. N. Y. & Texas S. S. Co., 10 App. Div. 463 51 
 
 Tyberg v. Nor. Pac. Ry. Co., 39 Minn. 15 160 
 
 Union Bag & Paper Co., Bellegarde v., 86 N. Y. Supp. 72, 90 App. 
 
 Div. 577 31, 58, 59, 61, 63, 101 
 
 Union Casualty Co., Todd v., 70 App. Div. 52 209 
 
 United Engineering & Cons. Co., Carlson v., 113 App. Div. 371, 98 
 
 Supp. 1036 69, 86, 96, 107, 121 
 
 Unwin, White v., 188 Mass. 490 107 
 
 Van Vechtin, Talcott v., 25 Hun, 565 214 
 
 Varrelman, Berger v., 127 N. Y. 281 4 
 
 Vaughn v. Glenns Falls Cement Co., 105 App. Div. 136, 93 Supp. 
 
 979 24, 193, 199 
 
 Velie V. Newark Ins. Co., 12 Abb. N. C. 309 214, 221 
 
 Veginan v. Morse, 160 Mass. 142 138-9 
 
 Vitto V. Keogan, 15 App. Div. 329 51 
 
 Vogel V. Am. Bridge Co., 180 N. Y. 373 79 
 
 Wakefield, Low v., 185 Mass. 214 108, 166 
 
 Walden v. City of Jamestown, 178 N. Y. 213 140 
 
 Walkeine, Canney v., 58 L. R. A. 33, and note, 5 C. C. A. 53, 113 
 
 Fed. 66 76 
 
 Walker & Pratt Co., Slattery v. (1901), 60 N. E. 782, 179 Mass. 
 
 307 28, 110 
 
 Walpole Emery Co., Goodnow v., 146 Mass. 261 148 
 
 Walsh V. Whiteley, 21 Q. B. D. 371 5 
 
 Walters v. Continental Ins. Co., 5 Hun, 343 221 
 
 Walters v. Geo. A. Fuller Co., 74 App. Div. 388, 77 Supp. 681 51 
 
xliv Table of Cases. 
 
 Page 
 
 Walters, Highland Ave. & B. E. Co. v., 91 Ala. 442 165 
 
 Waltham, Connolly v., 156 Mass. 368 108 
 
 Walthams v. Hope, 77 N. Y. 420 223 
 
 Walworth Mfg. Co., Morris v., 181 Mass. 326 38 
 
 Wampanoag Mills, Douin v., 172 Mass. 221 88 
 
 Wampanoag Mills, Sylvia v., 177 Mass. 149 155 
 
 Ward V. New Eng. Fibre Co., 154 Mass. 419 7 
 
 Ward V. Manhattan Ry. Co., 96 App. Div. 437, 88 Supp. 758 200 
 
 Washburn & Moen Mfg. Co., Carrigan v., 170 Mass. 79 159 
 
 Washburn, McCarthy v., 42 App. Div. 252, 58 Supp. 1125 161 
 
 Washburn, Burns v., 160 Mass. 457 31, 69 
 
 Washington Mills Co., Woodridge v., 160 Mass. 234 148 
 
 Washburn & Moen Mfg. Co., Donohue v., 169 Mass. 574 28, 148 
 
 Washburn & "Moen Mfg. Co., Gustafson v., 153 Mass. 468 48 
 
 Wason Mfg. Co. v. Wheeler, 135 Mass. 294 100 
 
 Watson, Maekay v. (1897), 23 Sc. Sess. Cas. 4th, Series, 383 26 
 
 Watson, Ind. & St. L. R. R. Co. v., 114 Ind. 20 162, 165 
 
 Watson, L. & N. Ry. Co. v., 90 Ala. 68 119 
 
 Watts V. Boston Tow Boat Co., 161 Mass. 378 205 
 
 Watts, Willetts v., 2 Q. B. D. 92 38, 40 
 
 Waydell, Gabrielson v., 135 N. Y. 1 61, 119 
 
 Waygood, Wild v., 61 L. J. Q. B. 91, 1 Q. B. D. 782 7 
 
 Webb Granite Co., Beauregard v., 160 Mass. 201 142, 144, 221, 222 
 
 Webber, Kimmer v., 151 N. Y. 417 30, 79 
 
 Webber v. Piper, 109 N. Y. 469 31 
 
 Weblin v. Ballard, 17 Q. B. D. 122 5, 47, 62, 149, 177 
 
 Weed v. Tucker, 19 N. Y. 433 4 
 
 Welch V. Grace, 167 Mass. 590 38 
 
 Wellington, Shea v., 163 Mass. 364 37 
 
 Wellson Paper Co., Snowberg v., 43 Minn. 532 160 
 
 Werner v. Rochester, 77 Hun, 33 140, 144 
 
 Wesley Coal Co. v. Taylor, 84 111. 126 170 
 
 Westbury (Inhab. of), McCoy v., 172 Mass. 504 99 
 
 Westcott V. N. y. & N. E. Ry. Co., 153 Mass. 460 159 
 
 West End St. Ry. Co., Millard v., 173 Mass. 512 107, 112 
 
 West End St. Ry. Co., O'Brien v., 173 Mass. 105 98, 107 
 
 West End St. Ry. Co., Stewart v., 163 Mass. 391 66 
 
 West End St. Ry. Co., Whelton v., 172 Mass. 556 118, 155 
 
 Western Ry. Co., Galloway v., 57 Ga. 512 14 
 
 Western Ry. Co. v. Bishop, 50 Ga. 465 14, 155 
 
 Western Ry. Co., Keegan v., 8 N. Y. 175 47 
 
 Western Ry. Co., Patton v., 96 N. C. 455 64 
 
 Weymouth, Gardner v., 155 Mass. 595 137 
 
Table of Cases. xlv 
 
 Paob 
 
 Wheeler, Berry v., 95 Mich. 250 155 
 
 Wheeler v. Wason Mfg. Co., 135 Mass. 294 100 
 
 Wheeloek, Liangley v., 181 Mass. 471 155 
 
 Whitaker v. Bent, 167 Mass. 588 37, 89, 94, 114 
 
 White Moss Colliery Co., Rourke v., 2 C. P. D. 205 7 
 
 White V. Cotzenhausen 129 U. S. 329 4 
 
 White V. Mayor, etc., 15 App. Div. 442 139 
 
 White V. Nonantum Worsted Co., 144 Mass. 276 5 
 
 White V. Witteman Lith. Co., 131 N. Y. 631 169 
 
 White V. Unwin, 188 Mass. 490 107 
 
 White V. Wm. H. Perry Co., 190 Mass. 99 29, 112 
 
 Whlteley, Walsh v., 21 Q. B. D. 371, 374 4 
 
 Whitin Mach. Wks., Trimble v., 172 Mass. 150, 51 N. E. 463. . .32, 69 
 
 Whitman v. Groveland, 131 Mass. 553 141, 146 
 
 Whitney Co. (Geo. C), Joseph v., 177 Mass. 176 86,89,90, 94 
 
 Whelton v. West End St. Ry. Co., 172 Mass. 556 118, 155 
 
 Whittier Mach. Co., May v., 154 Mass. 29 36, 38, 220 
 
 Wild V. Waygood, 61 L. J. Q. B. 91, 1 Q. B. D. 782 i 7 
 
 Willcutt, Carroll v., 163 Mass. 221 31, 37, 73, 109 
 
 Willetts V. Watts, 2 Q. B. D. 92 38, 40 
 
 Willey V. Boston E. L. Co., 168 Mass. 40, 42 27 
 
 Williams v. Roblin, 94 App. Div. 177 9, 13 
 
 Williams, Mo. Pac. Ey. Co. v., 75 Texas, 4 54 
 
 Williams v. Port Chester, 76 Supp. 631, 72 App. Div. 505 135 
 
 Williams v. Birmingham B. & M. Co., 2 Q. B. D. 338 176 
 
 Williams v. St. Louis Ry. Co., 119 Mo. 316 ■ 205 
 
 Williams v. D., L. & W. Ey. Co., 116 N. Y. 626 157 
 
 Willis V. Cole, 9 Colo. 159 23 
 
 Willis V. Grand Trunk Ey. Co., 60 Maine, 488 14 
 
 Wilmarth,' Fay v., 183 Mass. 71 26 
 
 Wilson, Fulton Bag, etc., Co. v., 89 Ga. 318 14 
 
 Wilson V. Merry, L. R. 1 Sc. App. 326 21 
 
 Wilson V. L. & N. Ry. Co., 85 Ala. 269, 272 22 
 
 Wilson V. N. Y. Mills, 107 App. Div. 99, 94 Supp. 1090 24, 196 
 
 Witgram, Schlisting v., 25 Hun, 626 224 
 
 Witteman, White Lith. Co. v., 131 N. Y. 631 169 
 
 Wood V. Dorrel, T. L. R., vol. 1, 550 40 
 
 Woodbury v. Post, 158 Mass. 140 215 
 
 Woodley v. Metropolitan Dstr. Ey. Co., 2 Exch. Div. 384 182 
 
 Woodridge v. Washington Mills Co., 160 Mass. 234 148 
 
 Woodson, Seaboard Mfg. Co. v., 94 Ala. 143 204 
 
 Woodward Iron Co. v. Cook, 124 Ala. 349 6 
 
 Woodward Iron Co. v. Hemdon, 114 Ala. 191 214 
 
xlvi Table of Cases. 
 
 Page 
 
 Woolfolk, Cappaso v., 163 N. Y. 472 51 
 
 Woonsocket EubBer Co., Bjbjian v., 164 Mass. 214, 219 36 
 
 Worcester, Joyce v., 140 Mass. 245 33 
 
 Worcester (C. of), Mitchell v., 129 Mass. 525 133 
 
 Worthington, Spencer v., 44 App. Div. 496, 60 Supp. 873 161 
 
 Wright V. N. Y. C. & H. R. R. Co., 25 N. Y. 566 157, 234 
 
 Wyllie V. Palmer, 137 N. Y. 257 8 
 
 Wyman v. Clark, 180 Mass. 173 46 
 
 W. & A. Ry. Co. V. Strong, 52 Ga. 461 14 
 
 W. &. A. Ry. Co. T. Bishop, 50 Ga. 465 14, 165 
 
 W., etc., Ry. Co., Hendricks v., 52 Ga. 467 14 
 
 W. J. S. & I. Co., Dale v., 155 Mass. 1 15 
 
 W. U. Tel. Co., Higgins v., 8 Misc. 435 7 
 
 Wynkoop v. Ludlow Valve Mfg. Co., 112 App. Div. 729, 98 Supp. 
 
 1076 195-6, 199 
 
 Yarmouth v. France, 19 Q. B. D. 647 5, 150, 176, 180, 187 
 
 York, L. & N. Ry. Co. v., 128 Ala. 305 119 
 
 York Mfg. Co., Feener v., 189 Mass. 336 29, 108, 110, 112 
 
 Young V. B. & M. R. Co., 168 Mass. 219 32, 46 
 
THE NEW YORK 
 
 EMPLOYEE^^ LIABILITY ACT. 
 
 CHAPTER I. 
 
 Liability Legislation in General — Its Development 
 
 AND ChAEACTER — CONSTRUCTION OF LIABILITY ACTS — 
 
 Constitutionality. 
 
 Section i. History. 
 
 Within the past twenty years in this country, there 
 has been a general tendency in legislation towards the 
 enactment of laws regulating and increasing the lia- 
 bility of employers to employees. There are statutes 
 in force in over twenty-eight States on the subject, and, 
 while the phraseology and forms of these enactments 
 are diverse, they are all drawn to accomplish the same 
 general purpose, namely, to change the common law 
 rules applicable to actions between employers and em- 
 ployees and to improve the position of the injured plain- 
 tiff who sues his employer for negligence. 
 
 The reason for this general tendency towards the en- 
 largement of the liability of the employer is not difficult 
 to find. The rules of the common law, defining the 
 duties of employers to employees, were formulated in 
 the days of the stage-coach and the handloom, and such 
 doubts as have grown up as to the theoretical justice of 
 these rules have been reinforced by considerations of 
 public policy. The growth of the factory system, the 
 
2 The New York Employees' Liability Act. 
 
 development of railways, and the constant increase in 
 the possibilities of physical injuries from the ordinary 
 occupations in which Avorkmen are engaged to-day have 
 made imperative aoi increase of legal responsibility on 
 the part of employers, so that, by reason of such in- 
 creased liability, they shall use the greater care for the 
 safety of their workmen which modern business condi- 
 tions demand. In , New York alone the statistics col- 
 lected by the State Bureau of Labor Statistics (report 
 of Bureau of Labor Statistics for 1899) show that 
 nearly 700 men are, killed annually in the industrial 
 establishments of tlje State, not including the persons 
 injured in railway service. The number of accidents, 
 not occasioning death, are annually about 40,000. In 
 railway service between 200 and 300 men are annually 
 killed in the State. Increased legal responsibility 
 tends to produce greater care on the part of employers 
 in the performance of duties which humanity enjoins. 
 The main purpose of liability acts, therefore, from the 
 standpoint of the legislator, is the diminution of the 
 number of casualties, and that these acts have to a large 
 extent accomplished that humane purpose there can be 
 little doubt. 
 
 Space will not permit an extended analysis of the 
 provisions of the statutes referred to above. They are 
 collected below in a foot note.* 
 
 1. Alabama (Code of 1886, pt. bility Act, Act of 1900, ch. ). 
 
 ni, tit. 1, sees. 2590-2592, Act of Florida (Revised Statutes of 
 
 February 12, 1885). Arkansas 1892, Appendix, p. 1008, sec. 3). 
 
 (Digest of 1894, eh. 130, sees. Georgia (Act of 1855, Code of 
 
 6248-6250). California (Civil 1882, sees. 2083 and 3036). 
 
 Code of 1885, p. 345, sees. 1969- Indiana (Annotated Statutes of 
 
 1971). Colorado (art. 15, sec. 1894, ch. 81, sees. 7083-7087). 
 
 15 of the Constitution; also Act Iowa (McClain's Annotated 
 
 of 1893, p. 77, Employers' Lia- Statutes of 1880, tit. 10, ch. 5, 
 
Enactments in Othbk States. 
 
 In four States employers' liability acts have been 
 enacted, modelled upon, aild in many essential features 
 following verbatim the English Employers' Liability 
 Act of 1880 (43 and 44 Vict., ch. 42). these States 
 are Alabania,^ Massachusi^tts,^ Colorado,* and New 
 York.^ In Indiana" a statute similar in many respects 
 to the English statute is in effect, but made applicable 
 solely to railway and other corporations. 
 
 The English cases and the decisions of the courts in 
 these four States will be useful as precedents in the 
 construction of similar provisions contained in the New 
 York law. Inasmuch as the New York Employers' 
 Liability Act is substantially a re-enactment of the 
 English, Massachusetts and Alabama statutes, their 
 decisions are entitled to great weight as throwing light 
 
 sec. 1307; also. Act of 1898, ch. 
 49). Kansas (General Statutes 
 of 1889, eh. 23, par. 1251). 
 Massachusetts (L. 1887, ch. 270, 
 as amended by eh. 260, Acts of 
 
 1892, and by ch. 359, Acts of 
 1893; eh. 499, Acts of 1894; also, 
 ch. 491, L. 1897). Minnesota 
 (General Statutes of 1894, ch. 
 34, see. 2701; also. Acts of 1895, 
 ch. 324). Mississippi (Consti- 
 tution, art. 7, sec. 193; also. Re- 
 vised Code of 1880, sec. 1054; 
 also, ch. 66 of the L. 1898). 
 Missouri (Acts of 1897, ch. 96.) 
 Montana (Code and Statutes, 
 Sanders' Ed. of 1895, div. I, sec. 
 105). New Mexico (Acts of 
 
 1893, ch. 28). North Carolina 
 (Act of February 23, 1897). 
 North Dakota (L. 1899, ch. 129; 
 also. Revised Code of 1895, Civil 
 Code, ch. 50, sees. 4095 to 4097). 
 
 Ohio (Acts of 1890, p. 149). 
 Rhode Island (Statutes of 1882^ 
 ch. 204, see. 15). South Coro- 
 lina (art. 9, sec 15, of Constitu- 
 tion). Texas (Acts of 1897, 
 Special Session, ch. 6). Wiscon- 
 sin (Acta of 1893, ch. 220). 
 Wyoming (Acts of December 7, 
 1889; also, art. 10 of Constitu- 
 tion ) . 
 
 Z. The Act of February 1^ 
 1885; Civil Code 1896, ch. 43, 
 sees. 1749-1751. 
 
 3. L. 1887, ch. 270, as amended 
 by eh. 260, L. 1892; ch. 359 of 
 Acts of 1893; ch. 499 of Acts of 
 1894, and ch. 491 of Acts of 1897. 
 
 4. Acts of 1893, ch. 77. 
 
 5. Ch. 600 of L. 1902. 
 
 6. Acts of 1893, ch. 130, Aniu> 
 tated Statutes of 1894, ch. 81 
 sees. 7083-7087. 
 
4 The New York Employees' Liability Act. 
 
 iipon the intention of our own Legislature. " It is a 
 general rule that when a foreign statute is re-enacted 
 ■it is to be understood as it has been interpreted by the 
 courts of the country from which it is taken {President, 
 etc., of Waterford & Whitehall Turnpike v. People, 9 
 Barb. 161; liyalls v. Mechanics Mills, 150 Mass. 191; 
 'Commonwealth v. Hartnett, 3 Gray, 450). It is fair to 
 infer that the Legislature intended that the words used 
 should have the meaning given to them by the courts, 
 for if it were intended to exclude any known construc- 
 tion of the statute, the legal presumption is that its 
 terms would be so changed as to effect that intention." 
 {Bcllegarde v. Union Bag d Paper Co., 90 A. D. 577, 
 86 Sup. 72, affd., no opinion, 181 N. Y. 519.) 
 
 Sec. 2. Construction. 
 
 The general rule of construction is, of course, that 
 statutes in derogation of the common law shall be con- 
 strued strictly. In O'Neil v. Karr, 110 Ap. Div. 571, 
 97 Sup. 148, the Appellate Division in the Third De- 
 partment has held that the general rule applies to the 
 
 .Liability Act by a somewhat strained construction of 
 Gmaehle v. Rosenberg, 178 N. Y. 152. This rule of strict 
 construction has not been applied to the act in other 
 jurisdictions, and the correctness of this decision just 
 cited is questionable. While the Employers' Liability 
 Act makes changes in the common law, it is, however, 
 a remedial statute ^.n the fullest sense of the term, and, 
 as such, entitled te liberal construction that the purposes 
 of its enactment may be accomplished.^ The act is, as 
 
 ,its title states, one to " Extend and regulate the liabil- 
 
 7. Hvdler v. Golden, 36 N. Y. N. Y. 281-287; White v. Oofzen- 
 446; Weed v. Tucker, 19 N. Y. hausen, 129 U. S. 329; Allen v, 
 433; Berger v. Varrelman, 127 Stevens, 161 N. Y. 122-143. 
 
Construction of Liability Acts. S> 
 
 ity of employers. While the title constitutes no part 
 of the act, it is well established by authority that it 
 may be considered as a key to the correct interpreta-' 
 tion of the statute, where that intent is otherwise some-, 
 what ambiguous." Rosin v. Lidgerwood Mfg. Co.^ 89 
 A. D. 245, 86 Sup. 49, citing People ex rel. v. Coleman, 
 121 N. Y. 542. 
 
 The English courts, in the construction which they 
 have placed upon the Employers' Liability Act of 1880^ 
 uniformly give the meaning of the phrases used a lib- 
 eral interpretation, and hold that the act, so far as rea- 
 son would justify, is to be considered in favor of the 
 employee.* 
 
 The same policy in the construction of the Massachu- 
 setts Employers' Liability Act has been followed by the 
 courts of that State.® 
 
 In Alabama the courts have said that in the cour 
 struction of the act the courts should consider its ob* 
 ject, have regard for the intention of the Legislature 
 and take a broad view of its provisions commensurate 
 with its proposed purposes.^" 
 
 In Indiana a policy similar to that of Alabama is 
 pursued. In a recent case, Hunt, Receiver, v. Connor, 
 
 8. Oriffiths v. The Earl of Dud- at p. 692 ; Yarmouth v. France, 
 
 ley, 9 Q. B. D/357; Osbcyrne v. 19 Q- B. D. 647. 
 Jackson, 11 Q. B. D. 619; Gibbs v. 9- See Ryalls v. Mechanics 
 
 Great Western Ry. Co., 12 Q. B. Mills, 150 Mass. 190; MePhee v. 
 
 D. 208; Haske v. Samuelson, 12 Scully, 163 Mass. 216; White v. 
 
 Q. B. D. 30; Walsh v. Whiteley, Nonantum Worsted Co., 1|4 
 
 21 Q. B. D. 371-374; Glarkson v. Mass. 276; Dale v. W. J. 8. £ 
 
 grave, 9 Q. B. D. 386; Morri- I- Oo., 155 Mass. 1. See Em- 
 
 son V. Ba4.rd, 10 Sc. Sess. Cas., ployers' Liability Act of 1880, 
 4th series, 271; WeMm v. Bat- etc., by R. M. Milton Senhouse, 
 lard, 17 Q. B. D. 125; Thomas ». P- 7. 
 
 Quartermaine, 18 Q. B. D. 685, 10. See Mobile & B. Ry. Co., v. 
 
 Walborn, 84 Ala. 133. , 
 
6 The New Yoek Employees' Liability Act. 
 
 Adm., 26 Ind. App. Ct. 41 (59 N. E. 50), the court con- 
 strues the Indiana Employers' Liability Act and de- 
 cides that, " being in derogation of the common law, it 
 is to be strictly construed, but, being a remedial act, it 
 must receive such a liberal construction with reference 
 to the objects it was intended to accomplish, and for 
 the purpose of advancing the remedy as well as carry- 
 ing into effect its true beneficial purpose." (See, also, 
 Hodges v. Standard Wheel Co., 152 Ind. 680.) 
 
 Sec. 3. The relation of employer and employee must exist. 
 
 It is to be observed that the New York statute is one 
 in favor of the employee, as appears by its title, "An 
 act to extend and regulate* the liability of employers to 
 make compensation for personal injuries suffered by 
 employees." The first section of the bill further pro- 
 vides that under it an employee shall have the same 
 right to compensation, etc. Only an employee, or the 
 legal representatives of an employee, in case of death, 
 is entitled to benefit under the provisions of the aqt. 
 This excludes two important classes of negligence cases 
 from the operation of the statute: first, actions by em- 
 ployees of subcontractors against contractors or own- 
 ers, and second, actions brought by parents or guar- 
 dians for the loss of services of minor employees. In 
 Woodward Iron Co. v. Cook, 124 Ala. 349, the court 
 holds that the statute does not apply to actions brought 
 by parents for services of injured minors. (See, also, 
 Lovell V. De Bardelehen Coal Co., 90 Ala. 13.) 
 
 In determining whether the relation of master and 
 servant exists, in Coughlan v. Cambridge, 166 Mass. 
 268, the court says : " It is well settled that one who is 
 the general servant of an owner may be lent or hired by 
 his master to another for a special service so as to be- 
 
Relation of Employer and BlviiPL(!)fSi"]^ Must Exi^t. 't 
 
 come for that service the servant of .such third part^. 
 The test is whether in the particular service he is eh* 
 gaged to perform he continues li3,ble to the direction 
 and control of his master or becomes subject to that of 
 the party to whom he is hired or lent." The term ser* 
 vant, as defined by the Court of Appeals, is " one who 
 is employed to render personal services to his employed 
 otherwise than in the pursuit of an independent calling.'? 
 " The mere fact that one person renders some service to 
 another for compensation, expressed or implied, does 
 not necessarily create the legal relation of master and 
 servant." Murray v. Doicns, 161 N'. Y. 301. {Johnson v. 
 Boston, 118 Mass. 114; Clapp v. Kemp, 122 Mass. 481; 
 Daley v. B. & A. B. Co., 147 Mass.'l01, 112; Dane v) 
 Cochrane Chemical Co., 164 Mass. 453; Ward v. New 
 England Fibre Co., 154 Mass. 419; 2/ Jeered v. Mackie; 
 178 Mass. 1; Hasty v. 8ears, ISTMAss. 123; Bourke v. 
 White Moss Colliery Co., 2 C. P. D. 205; Wild v. Way- 
 good, 61 L. J. Q. B. 91, 1 Q. B. 782; Butler v. Town^ 
 shcnd, 126 N. Y. 105; Quarman v;' Bennett, 6 M. & Wi 
 500; Michael v. Stanton, 3 Hun, 4:G2; Higgins v. W, tl'. 
 Tel. Co., 8 Misc. 435.) 
 
 The master is the person in whoSe business the em- 
 ployee is engaged at the time and who has the right to 
 control and direct his conduct. The rule on the subject 
 is well stated by a learned author oil the law of negli- 
 gence, as follows : " He is to be de^iiied the master who 
 has the supreme choice, control and direction of the ser- 
 vant, and whose will the servant represents not merely 
 in the ultimate result of his work "but in all its details. 
 The payment of an employee by the day or the control 
 or supervision of the works by the employer, though im- 
 portant considerations, are not in themselves decisive 
 of the fact that the two are master and servant." ( Shear* 
 
8 The New Yokk Employees' Liability Act. 
 
 man & Eedfield on Negligence, 4th ed., p. 269; Wyllie 
 V. Palmer, 137 N. Y. 257; see, also, Lauro v. Standard 
 Oil Co. 74 App. Div. 4, 76 Supp. 800.) 
 
 Sec. 4. The cause of action must accrue within the State. 
 The statute can have no application to causes of ac- 
 tion accruing in other States even when the suit is one 
 maintainable (so far as jurisdiction is concerned) in 
 New York. As the court says in Eleps v. Bristol Mfg. 
 Co., 107 App. Div. 488 : " The statute gives no cause of 
 action for an injury sustained in the State of Connecti- 
 cut by a resident of that State against one of its corpo- 
 rations whose negligence is alleged to have caused the 
 injury." 
 
 Sec. 5. Common law rights of action are not affected by 
 the statute. 
 Both in England and in the several States in which the 
 English statute has been adopted, it has been held tliat 
 the enactment of the Liability Law has not destroyed or 
 taken away common law rights of action where such 
 right of action would exist if the statute had not been 
 enacted. The Employers' Liability Act is not a sub- 
 stitute for the rights which employees have under exist- 
 ing laws but is an addition to them. The intention of the 
 Legislature has been construed to be " not to change the 
 common law liability, but, as the title of the act de- 
 clares, to extend and regulate the liability of employers, 
 to make compensation for personal injuries suffered by 
 employees. It did not give a new remedy for acts of 
 negligence resulting in personal injuries but merely ex- 
 tended the liability of employers for the negligence of 
 their superintendents, giving an action in some cases 
 where it would not have existed at common law." (Mul- 
 
Common Law Eights Not Affected. 
 
 ligan v. Erie B. R. Co., 99 App. Div. 499.) Chapter 600 
 of the Laws of 1902 does not apply to a case where the 
 complaint does not charge any liability based upon 
 the provisions of that statute, but only applies to a new 
 or extended liability created thereby. There is, there- 
 fore, no necessity for giving notice of. the time, place 
 and cause of the accident in order to maintain a com- 
 mon law action for negligence; such notice is required 
 only when the axided benefits of the act are sought to 
 be obtained. {Gmaehle v. Rosenberg, 178 N. Y. 147; 
 Rosin V. Lidgerwood Mfg. Co., 89 App. Div. 245; Wil- 
 liams V. Roblin, 94 App. Div. 177; Schermerhorn v. 
 Glens Falls Cement Co., 94 App. Div. 600.) 
 
 In Ryalls v. Mechanics Mills, 150 Mass. 190, the 
 court says : " It would not need the aid of previous ex- 
 position to show that the main purpose of the statute,, 
 as the title intimates, is to extend the liability of em- 
 ployers in favor of employees; that it does not attempt 
 to codify the whole law upon the subject, and that it 
 leaves open some common law defences and some com- 
 mon law liabilities. In view of these general considera- 
 tions, we are to construe the statute liberally in favor 
 of employees, and we should be slow to conclude that 
 indirectly and without express words to that effect it 
 has limited the workingman's common law rights most 
 materially in respect to the conditions and time of bring- 
 ing an action and the amount which he can recover." 
 The court concludes by saying : " We are of opinion 
 that in those cases within the statute of 1887, chapter 
 270, section 1, clause 1, in which the common law gives 
 the employee a remedy, he still has a right to sue under 
 the same conditions and recover damages to the same 
 extent as if the statute had not been passed." (See, 
 aJso, Coughlin v. Boston Tow Boat Company, 151 Mass. 
 
10 The New Yoek Employees' Liability Act. 
 
 » ■ 
 
 92 ; Clark v. Merchants, etc., Co., 151 Mass. 352 ; Dacey 
 V. Old Colony B. Co., 151 Mass. 112-118; Clark v. N. Y. 
 P. & B. R. Co., ICO Mass. 39; Clare v. N. T. & N. E. R. 
 Co., 172 Mass. 211.) 
 
 In Col. Milling & Elevator Co. v. Mitchell, 26 Colo. 
 284, the court holds, that the Colorado Employers' Liia- 
 bility Act does not repeal, modify or change, nor in any 
 manner prejudice the common law right of employees, 
 nor in any way interfere with the enforcement of any 
 right except such as the statute itself creates, and that 
 the notice required to be given to the employer of the 
 time, place and cause of the injury, under the Em- 
 ployers' Liability Act of Colorado, is not necessary 
 where an action exists either at common law or under 
 some other statute. On the general doctrine that the 
 act does not change common law rights or remedies 
 when the action is not brought solely under the statute 
 the cases in Alabama are to the same effect. No notice 
 ■of the time, place or cause of injury is required, how- 
 ever, by the Alabama statute. (See Lovell v. De Bar- 
 delehen Coal Co., 90 Ala. 13 ; Mobile, etc., R. Co. v. Hoi- 
 horn, 84 Ala. 133; Culver v. Alabama Midland R. Co., 
 108 Ala. 330; Loughran v. Brewer, 113 Ala. 509.) 
 
 The New York Employers' Liability Act, unlike the 
 English or other American statutes, does not leave this 
 question one fairly open for judicial construction. The 
 statute itself expressly provides : " Section 5. Every 
 existing right of action for negligence or recovery of 
 damages resulting in death is continued, and nothing in 
 this act contained shall be construed as limiting any 
 such right of action, nor shall the failure to give notice, 
 provided in section 2 of this act, be a bar to the main- 
 tenance of a suit upon any existing right of action." 
 
 Notwithstanding the apparently plain wording of 
 
Common Law Rights Not Affected. 11 
 
 the section just quoted and the decisions of other States 
 above cited, holding that notice is not necessary in cases 
 brought under the common law solely and not under 
 the act, the Appellate Division, First Department, ren- 
 dered two decisions shortly after the act took effect, 
 which construed the New York Employers' Liability 
 Act as limiting rather than extending the liability of 
 employers and holding that after the passage of the act 
 all master and servant cases were embraced within its 
 provisions and that the giving of notice was a condi- 
 tion precedent to the maintenance of all such actions. 
 These cases {Gmaehle v. Rosenberg, 80 App. Div. 541, 
 and 83 App. Div. 339, 80 Supp. 705; Johnson v. Roach, 
 83 App. Div. 351, 82 Supp. 283), held in effect that the 
 cause of action for death by negligence theretofore ex- 
 isting at common law and the cause of action provided 
 under the act were not separate and distinct, but that 
 the statute was intended as a substitute for the com- 
 mon law right of action, and that after the statute took 
 effect the sole right of action for death by negligence in 
 actions between employers and employees was that pro- 
 vided for by the act itself, and could be asserted only by 
 complying with all its conditions precedent as to no- 
 tice. A contrary decision was rendered in the Appel- 
 late Division, Second Department, very shortly after 
 these cases were decided. (Rosin v. Lidgerwood Mfg. 
 Co., 89 App. Div. 245), holding that the remedies at 
 common law and those provided for under the statute 
 were distinct and separate and that the common law 
 rights of action were not affected by the statute. The 
 conflict between the two departments of the Appellate 
 Division was settled by the decision of the Court of 
 Appeals in Gmaehle v. Rosenberg, 178 N. Y. 147, which 
 sustained the reasoning of the Appellate Division in 
 
12 The New York Employees' Liability Act. 
 
 the Second Departnient. The case thus decided by the 
 Court of Appeals was an ordinary common law action, 
 the complaint charging defendant with having caused 
 the death of plaintiff's intestate by the negligent erec- 
 tion of a scaffold and containing no allegation that a 
 notice of the time, place and cause of the injury had 
 been served on the employer. Defendant demurred to 
 the complaint as not stating facts sufficient to consti- 
 tute a cause of action. The demurrer was overruled 
 at Trial Term (40 Misc. 267), but was sustained by the 
 Appellate Division, First Department (87 App. Div. 
 631 ) , and the question certified to the Court of Appeals 
 was whether the service of the notice was a condition 
 precedent to the maintenance of an action against the 
 employer to recover damages for personal injuries sus- 
 tained by the employee after the passage of the act. 
 
 The Court of Appeals held that such notice was not 
 necessary in common law actions. It says, by Cullen, 
 J.: 
 
 " It will be seen that by the terms of the statute the 
 requirement of notice to the employer is limited to 
 ' actions for the recovery of compensation for injury or 
 death under the act.' 
 
 " The learned court below, however, was of the 
 opinion that the statute dealt with the whole subject of 
 the master's liability for defective ways, works or ma- 
 chinery, and that therefore from the time of its enact- 
 ment all causes of action for those defects, whether 
 they were such as previously existed or not, were sub- 
 jected to the qualification that notice must be given 
 v.ithin 120 days after the occurrence of the accident. 
 It is also insisted that the statute gives no new cause of 
 action, and that hence it must be construed as regulat- 
 ing such causes of action as were given by the common 
 
Common Law Rights Not Affected. 13 
 
 law. . . . We think the legislative intent is rea- 
 sonably clear, the Legislature, deeming that by the act 
 it was to extend the liabilities of masters to their ser- 
 vants (to what extent they effectuated this purpose, it 
 is unnecessary to determine) thought it wise to safe- 
 guard the new liabilities by requiring that notice should 
 be given the master of- the extent for which it was 
 sought to recover compensation. But it was only the 
 new or extended liability that it was intended to subject 
 to such safeguard. This intent is clearly expressed 
 when the Legislature limited the requirement for notice 
 to actions for injuries or death ' under this act.' " 
 
 This ruling of the Court of Appeals has been since 
 followed in Williams v. Roblin, 94 App. Div. 177, and 
 Bchermerhorn v. Qlenns Falls Cement Co., 94 App. 
 Div. 600. The decision of the First Department, Ap- 
 pellate Division, above referred to, are no longer 
 authorities, and the contrary rule to that laid down by 
 them on this point is now fully established. 
 
 Sec. 6. Contracts exempting employers from liability under 
 the statute. 
 The general American rule would seem to be that 
 written contracts purporting to exempt employers from 
 liability to employee for personal injuries thereafter 
 suffered by them from the employer's negligence are 
 void as being against public policy, irrespective of all 
 questions of consideration for the making of the con- 
 tract." 
 
 11 See Johnson v. Fargo, 184 510; AmaU v. III. Cent. R. B. 
 
 N. Y. 379; Money v. C, B. d Q. Co., 83 111. 273; J., 8. & E. Br,. 
 
 By Co., iS 111. App. Ct. Kep. Co. v. Southworth, 135 111. 250; 
 
 105- Fairbanks Cammng Co. v. B. B. Co. v. Spongier, 44 Ohio St, 
 
 Innes 24 111. App. Ct. 33; 125 111. Kep. 471; Johnson, Admr., v. R. 
 
14 TitE New Yoek Employers' Liability Act. 
 
 A contrary doctrine, however, permitting written 
 contracts of this character has found sanction in the 
 courts of a few States.** 
 
 In England written agreements of this kind have 
 been upheld as legal, *^ and the value and effect of the 
 English Employers' Liability Act of 1880 was very 
 largely impaired by the rulings of the English courts 
 permitting such contracts, an investigation made by a 
 Parliamentary Commission showing that a large per- 
 centage of the great English employers required such 
 contracts as a pre-requisite to employment.** 
 
 A somewhat singular ruling, however was adopted by 
 the English courts on this subject. While an employee 
 might exonerate his master, under the decision cited, 
 from future liabilities for injuries resulting from the 
 master's failure to obey his common law duties to his 
 employee, and might further exempt him from liability 
 under the Employers' Liability Act, the English courts 
 apparently do not countenance contracts whereby the 
 employee assumes the risk of a violation by his em- 
 
 B. Co., 86 Va. 975; Louisville Ga. 48; W. d A. Ry. Co. v. Strong, 
 
 Ry. V. Orr, 91 Ala. 548; Hissong 52 Ga. 461; Western, etc., Ry. 
 
 V. Ry. Co., 91 Ala. 514; Roesner Co. v. Bishop, 50 Ga. 465; ffen- 
 
 V. Berman, 8 Fed. Rep. 782; Kas. dricks v. W., etc., Ry. Co., 52 Ga. 
 
 Pac. Ry. Co. v. Peavey, 29 Kas. 467; see, also, Mitchell v. Penna. 
 
 169; Memphis, etc., Ry. Go. v. R. R. Co., 1 Am. Law Reg. 717.) 
 
 Jones, 2 Head, 517; Willis v. Such contracts are now void by 
 
 Grand Trunk Ry. Co., 60 Me. statutes if made in consideration 
 
 488. °f employment. (Civil Code, 
 
 12. In Georgia such contracts sec. 2613; Pettus v. Brunswick, 
 
 were formerly allowable, except etc., R. Co., 35 S. E. 82; Ga. 
 
 that the employer could not ex- 1900.) 
 
 empt himself from "criminal" 13. See Griffiths v. The Earl of 
 
 negligence. (See Gallouiay v. Dudley, 9 Q. B. D. 357. 
 
 Western Ry. Co., 57 Ga. 512; 14. See Beach on Contributory 
 
 Fulton Bag, etc., Co. v. Wilson, Negligence (Crawford's Ed.), sec. 
 
 89 Ga. 318; Cook v. Ry. Co., 72 380. 
 
Contracts Exempting Employers From Liability. 15 
 
 ployer of a statute regulating the employer's business, 
 and making mandatory provisions for the greater 
 safety of the employee.^* 
 
 The yalidity of written contracts of this kind has been 
 before the Court of Appeals several times, but the pre- 
 cise question has not been decided until the recent de- 
 cision of Johnson v. Fargo, 184 N. Y. 379, in which the 
 Court of Appeals decides that an agreement relieving 
 an express company from liability to an employee for 
 personal injuries (resulting from the negligence of the 
 company) which he might thereafter receive iu the 
 course of his employment is void as against public 
 policy in that its enforcement would nullify the strict 
 and just rule of the common law imposing the duty of 
 care on the part of the employers towards employees, 
 which in the interest of the public should be main- 
 tained and enforced. The court considers fully 
 the American and English decisions on this highly im- 
 portant subject, and the reasoning of the court in reach- 
 ing its conclusion is significant: 
 
 " Ihe State is interested in the conservation of the 
 lives and of the healthful vigor of its citizens, and if 
 employers could contract away their responsibility at 
 common law, it would tend to encourage on their part 
 laxity of conduct in, if not an indifference to, the main- 
 tenance of proper and reasonable safeguards to human 
 life and limb. The rule of responsibility at common 
 law is as just as it is strict and the interest of the State- 
 in its maintenance must be assumed; for its policy has,, 
 in recent years, been evidenced in the progressive et^act- 
 ment of many laws, which regulate the employment of 
 
 15. See Baddeley v. Lord Gran- 
 ville, 19 Q. B. D. 423. 
 
16 The New York Employers' Liability Act. 
 
 children and the hours of work and impose strict con- 
 ditions Math reference to the safety and healthfulness 
 of the surroundings of the employed, in the factory and 
 in the shop. The employer and the employed, in the- 
 ory, deal upon equal terms; but, practically that is not 
 always the case. The artisan or workman may be 
 driven by need; or he may be ignorant, or of improvi- 
 dent character. It is, therefore, for the interest of the 
 community that there should be no encouragement for 
 any relaxation on the employer's part in his duty of 
 reasonable care for the safety of his employees. . . . 
 It has been observed that it is still the business of the 
 State in modern times to defend individuals against 
 one another and, though the proposition is a broad one, 
 when considered with reference to penal legislation 
 and all legislation intended for the promotion of the 
 health, welfare and safety of the community, it is not 
 without truth. It is evident, from the course of legis- 
 lation framed for the purpose of affording greater pro- 
 tection to the class of the employed, that the people of 
 this State have compelled the employer to do many 
 things which at common law he was not under obliga- 
 tion to do. Such legislation may be regarded as sup- 
 plementing the common law rule of the employer's re- 
 sponsibility and is illustrative of the policy of the 
 State. Therefore it is, when an agreement is sought 
 to be enforced, which suspends the operation of the 
 common law rule of liability and defeats the spirit of 
 existing laws of the State, because tending to destroy 
 the motive of the employer to be vigilant in the per- 
 formance of his duty towards his employees, that it is 
 the duty of the court to declare it to be invalid and to 
 refuse its enforcement." 
 
 Other New York cases in which similar conclusions- 
 
Forbidding Contracts Releasing Employers. 17 
 
 have been rendered by lower courts are collected in the 
 footnote. ^^ Statutes forbid such contracts in many 
 States." 
 
 The reasoning of the court contained in the quota- 
 tion above would seem to afford ground for argument 
 in favor of the extension to unwritten contracts of the 
 
 16. Bunt V. Herring, 2 Misc. 
 105 ; Bossout v. R., W. &■ 0. B. B. 
 Co., 32 St. Rep. 884; and dictum in 
 Bimpson v. N. Y. Bubber Co., 80 
 Hun, 239. In Bunt v. Herring, 2 
 Misc. 105, the General Term of the 
 Court of Common Pleas, held that 
 an instrument executed by a, ser- 
 vant agreeing in consideration of 
 employment and one dollar not to 
 hold his master liable for any in- 
 jury, whether resulting from the 
 master's negligence or otherwise, 
 or to make any claim for dam- 
 ages, is void on the ground of 
 public policy, though based prob- 
 ably upon sufficient consideration. 
 See, also, Nicholas v. If. Y. C. B. 
 B. Co., 89 N. Y. 370; Holsapple v. 
 B., W. & 0. B. B. Co., 86 N. Y. 
 275; Blair v. B. B. Co., 66 N. Y. 
 313; Kenney v. B. B. Co., 125 
 N. Y. 422. It is to be observed 
 that in all these cases defendants 
 were held liable and in none of 
 them was the contract of exemp- 
 tion under inquiry sustained, 
 though the court intimates in all 
 of them that cases might exist 
 where such exemption could be 
 allowed. The New York rule 
 permitting common carriers to 
 exempt themselves from the conse- 
 quence of their own negligence in 
 the transportation of goods, if ex- 
 
 pressly stated in the contract itself 
 {Mynard v. Syracuse, etc., B. Co., 
 71 N. Y. 180), is well known and 
 is contrary to the doctrine of the 
 United States courts {Lockwood 
 V. Bailway Co., 17 Wal. 357), 
 and the general opinion of the 
 courts in the various States. 
 17. Colorado (art. 14, sec. 15, of 
 the Constitution). Florida (Revised 
 Statutes of 1892, Appendix, p 
 1008, sec. 3; Ga. Civil Code, sec, 
 2613). Indiana (Annotated Stat 
 utes of 1894, ch. 81, sec. 7087) 
 Iowa (Acts of 1862, McCIain's An 
 notated Statutes of 1880, ch. 10; 
 tit. 5, sec. 1307; also the Acts of 
 1898, eh. 49, sec. 1). Massachu- 
 setts (Acts of 1877, ch. 101, sec, 
 1). Minnesota (Gteneral Statutes 
 of 1894, eh. 34, sec. 2701). Mis 
 sissippi (Constitution, art. 7, sec, 
 193). Missouri (Act of 18,97, ch, 
 96, sec. 4). New Mexico (Acts of 
 1893', ch. 28, sec. 1 ) . North Caro 
 lina (Act of February 23, 1897 
 sec. 2). North Dakota (L. 1899, 
 ch. 29, see. 1). Ohio (Acts of 
 1890, p. 149, sec. 1). South Caro 
 lina (Constitution, art. 9, sec. IS) 
 Texas (Acts of 1897, ch. 6, sec. 4) 
 Wisconsin (Acts of 1893, eh. 220, 
 sec. 1). Wyoming (Act of Decem- 
 ber 7, 1869, g,nd art. 10 of Consti- 
 tution, sec. 4). 
 
18 The New York Employhrs' Liability Act. 
 
 public policy principle there laid down against written 
 contracts. The doctrine of assumed risk is based on an 
 implied contract between employer and employee, in 
 which the employee is assumed to have agreed to take 
 his chances of injury from obvious risks, and risks ex- . 
 isting by the employer's failure to comply with statutes 
 passed for the employees' protection. If, as the Court 
 of Appeals says, it is against public policy for the em- 
 ployee to make such a contract consciously and in writ- 
 ing, it would seem equally logical that he should not be 
 held by implication of law to have made a similar con- 
 tract unconsciously and by mere operation of law. 
 (See Chapter V.) 
 
 Sec. 7. Constitutionality of Uability laws. 
 
 There would seem to be no ground for questioning 
 the constitutionality of Employers' Liability JlictB, 
 which, like that of New York, change general rules of 
 law relating to all classes of employers and employees 
 without laying down special rules applicable to certain 
 industries or exempting certain classes of citizens from 
 their operation. Frequent attacks have been made in 
 the courts upon the provisions of the liability acts of 
 other States which create special rules of responsibility 
 for railway corporations or corporations in general, 
 which are not shared by other citizens, the usual ground 
 of objection being that such statutes are " class legisla- 
 tion," and that they fall within the provisions of the 
 United States Constitution and the Constitutions of the 
 various States forbidding the taking of property with- 
 out due process of law, or guaranteeing the equal pro- 
 tection of the law. These contentions have been 
 usually disapproved by the courts, and such laws have 
 
Constitutionality op Acts. 19* 
 
 been held to be well within the province of the Legis- 
 lature.^* 
 
 Contrary rulings are to be found only in the State of 
 Arkansas.^* 
 
 A recent case in Pennsylvania has intimated that an 
 act of the Legislature which undertakes to reverse the 
 settled law on the subject of master and servant, and to 
 declare that the employer shall be responsible for an 
 injury resulting from the negligence of a fellow work- 
 man, is unconstitutional. (Durldn v. Kingston Coal 
 Co., 171 Pa. St. Eep. 193.) The decision of this point 
 was not directly involved in the case, the question at 
 issue being whether a law which placed upon an em- 
 ployer the duty of employing a particular mine inspec- 
 tor could make him liable for the negligence of an em- 
 ployee thus forced upon him by the statute, without 
 opportunity for personal choice. That such a liability 
 cannot be created can scarcely be questioned in view of 
 the decision of the United States Supreme Court. 
 {Homer Ramsdell Co. v. Camp. Gen. Trans., 182 U. S. 
 406. ) See, however, the comment of Judge Parkee in 
 National Protective Association of Steam Fitters and 
 Helpers v. CummAng, 170 N. Y. 315. 
 
 The constitutionality of section 2 of the New York 
 Act was considered in Gmaehle v. Rosenberg, 83 App. 
 Div. 339, 82 Sup. 366. The court having decided that 
 the requirements of notice of injury applied to all 
 master and servant cases at common law as well as 
 
 18. See Missouri By. Co. v. Co., 175 U. S. 348; Indianapolis 
 127 U. S. 205; Minne- Union Ry. Go. v. Eookham, 63 
 
 apolis & St. Paul Ry. Co. v. Her- N. E. Rep. 943. 
 
 rick, 127 U. S. 210; Chicago, etc., 19. Leep v. Ry. Co., 58 Ark, 
 
 Ry. V. Pontius, 157 U. S. 209; 407; Bt. Louis, etc., Ry. Co, v. 
 
 Tull V. Lake Erie & Western Ry. Paul, 64 Ark. 83. 
 
20 The New York Employees' Liability Act. 
 
 those brought under the statute, it was urged that under 
 such a construction the requirement of notice was un- 
 constitutional in death cases under article 1, section 
 18, of the State Constitution.^o The court held this 
 objection untenable, as the requirement of notice effects 
 the remedy and not the right of action guaranteed by 
 the Constitution. The Appellate Division, Second De- 
 partment, reached a precisely contrary conclusion on 
 ■this point in Rosin v. lAdgerwood Mfg. Co., 89 App. 
 Div. 245. The Court of Appeals, in 178 N. Y. 147, in 
 ■reversing Gmaehle v. Rosenberg, 87 App. Div. 631, re- 
 fers with approval to Rosin v. Lidgerwood Mfg. Co., 
 but expressly avoids any intimation of approval of that 
 jportion of the decision which deals with this constitu- 
 tional question. This question has, however, become 
 purely academic by the decision of the Court of Ap- 
 peals in the Rosenberg Case, that the statute does not 
 afiFect common law rights, " the right of action now 
 •existing, etc." protected by the Constitution, but applies 
 'solely to the new and added rights created by the act. 
 
 ; 20. "The right of action now amount recoverable shall not be 
 
 ,existing to recover damages for subject to any statutory limita- 
 
 injuries resulting in death shall tion." 
 never be abrogated; and the 
 
CHAPTER II. 
 
 Defects in Ways, Works and Machineet. 
 
 Sec. 8. Section i, subd. I, makes no change in existing lav/. 
 Subdivision 1 of section 1 of the Employers' Liability 
 Act provides that where, " after this act takes effect,; 
 personal injury is caused to an employee who is him" 
 self in the exercise of due ^ care and diligence at the timi^ 
 by reason of any defect in the condition of the way% 
 works or machinery, connected or used in the business 
 of the employer, which arose from or had sot been' dis^ 
 covered or remedied owing to the negligence of the 
 employer or of any persqn in the service of the emplpyep 
 entrusted by him with the duty of seeing that the way^ 
 works and machinery were in proper condition . > :. 
 the employee, or, in case the injury result in death^ thi^ 
 executor or administrator of the deceased employee, wh(> 
 has left him surviving a husband, wife or next of kin, 
 shall have the same right to compensation and remedies 
 against the employer as if the employee had not been 
 employed or in the service of the employer nor epgagfed 
 in his work." This section follows verbatim the word- 
 ing of the English, Massachusetts and Colorado acts. 
 Under the English law, as it existed prior to the enact- 
 ment of the English act, it was held in the famous case 
 of Wilson V. Merry, L. R., 1 Sc. App. 326, that an 
 employer might delegate to a competent servant, care- 
 fully chosen, the power to perform duties, which other- 
 wise the employer himself should perform, and, if his 
 exercised reasonable care in the selection of such a 
 
 21 
 
22 The New Yoek Employees' Liability Act. 
 
 servant, the master was not responsible for the acts of 
 negligence of such a servant causing injury to other 
 employees. This decision, in effect, held that the master 
 is not bound to use any further care to make or keep 
 the place in which his servants are required to do their 
 work safe for their use than to obtain a competent 
 servant to attend to that matter. The rule in ^\ Uson 
 V. Merry has been the subject of severe criticism in the 
 United States,* and is not followed in the United States 
 in any jurisdiction. The provision quoted above from 
 the New York Employers' Liability Act was one adopted 
 in the English law for the purpose of avoiding the 
 effect of this case. This subdivision makes no change, 
 however, in the New York law, and is declaratory of 
 existing common law principles, so that an action 
 brought under this subdivision of section 1 could as well 
 be brought under existing provisions of the common 
 law.^ In Colorado Milling d Elevator Co. v. Mitchell, 
 26 Colo. 284, it was held that no new cause of action 
 Avas created by a similar provision of the Colorado act, 
 the court saying, that at the time this act was enacted 
 "it was settled law in this State that the master was 
 bound to personally see that reasonable care was used 
 in providing reasonably safe and proper machinery 
 and appliances for use in his business and to use rea- 
 sonable care in maintaining the same in suitable condi- 
 tion, and that agents to whom he delegated the duty of 
 procuring the machinery and the duty of inspecting it 
 and keeping up the same in suitable repair were not 
 regarded as fellow servants with those employed in the 
 
 1. See Shearman & Redfleld on R. v. O'Leary, 93 Fed. 737; Murray 
 Negligence,' sec. 228, 5th Ed. v. Knight, 156 Ma88. 518; Ryalls v. 
 
 2. See Wilson v. L. & N. B. Co., Mechanics Mills, 150 Mass. 190; 
 85 Ala. 269, 272; N. Y., N. H. d H. Ashley v. Eart, 147 Mass. 575. 
 
Contributory Negligence Defence Not Affected. 23 
 
 business in which such machinery and appliances were 
 used, and that, therefore, the master was responsible 
 for injuries resulting (without contributory negligence 
 on their part) to servants through the negligence or 
 want of due care on the part of .such agents in the 
 discharge of their duties in these respects." (Citing 
 Willis V. Cole, 9 Colo. 159; Colp. Midland Ry. Co. v. 
 O'Brien, 16 Colo. 319 ; Denver, etc., Ry. v. Driscoll, 12 
 Colo. 520 ; Denver, T. & G. Ry. Co. v. Simson, 15 Colo. 
 55.) ' ' I 
 
 This quotation is undoubtedly a correct statement of 
 existing New York law. (See sec. 20, post, and cases 
 cited.) This subdivision has in effect simply created 
 new terms by which to designate the master's common 
 law duties and the words, " ways,, works and machin- 
 ery," as used in it, have been subject to judicial con- 
 struction frequently by the courts in the States in 
 which employers' liability acts are now in force. 
 
 Sec. g. Defence of contributory negligence not affected 
 by the statute. 
 
 It is to be observed that the first section of the law 
 provides, as a condition precedent to the right to re- 
 cover, that the employee is " himself in the exercise of 
 due care and diligence at the time." So far as the ques- 
 tion of contributory negligence is concerned, the burden 
 of proof is upon plaintiff under the statute as under the 
 common law, to show the absence of contributory negli- 
 gence on his part. {Bailor v. Empire State Dairy C6., 
 115 A. D. 71.) , 
 
 Section 3 of the act does not change the general rule 
 in this regard, except in one particular, namely, that 
 the question whether an employe was guilty of con- 
 tributory negligence by continuing at work in the 
 
24 The New York Employees' Liability Act. 
 
 presence of unnecessary danger created by his em- 
 ployer's negligence is to be submitted to the jury. ' 
 {McBride v. N. Y. Tunnel Co., 101 A. D. 448, 92 Sup. 
 282 ; Kinney v. Rutland Railway Co., 114 A. D. 286, 99 
 Supp. 800.) In construing section 3 the court in 
 Wilson V. New York Mills, 107 A. D. 99, 94 Sup. 
 1090, says : " The effect of this provision is not to 
 relieve the plaintiff from showing freedom from con- 
 tributory negligence nor does it require the submission 
 to the jury of this question where there is an utter 
 absence of proof tending to establish the exercise of 
 care by the plaintiff injured." (Vaughn v. dens Falls 
 Cement Co., 105 A. D. 136, 93 Sup. 979 ; Hunt v. Dexter 
 Sulphite Pulp & Paper Co., 100 A. D. 119, 91 Sup. 279; 
 Chisholm v. Manhattan Railway Co., 101 Supp. 622.) 
 
 Except in the particular just mentioned the Act 
 makes no change in the common law doctrine regarding 
 contributory negligence. In other respects the common 
 law rule applies. A recent case brought in admiralty 
 in the southern district of New York under the Liar 
 bility Act (Sievers v. Eyre, 122 Fed. 734) holds to that 
 effect. The action was one to recover damages for 
 personal injuries occasioned to the libelant who was a 
 seaman on a yacht of the respondent. There was a 
 cannon on the yacht used for firing salutes and the 
 libelant had frequently used it as part of his duty for 
 such purpose. After the gun had been fired one even- 
 ing the captain of the vessel put in another cartridge, 
 which was left in the gun. The next morning the 
 libelant in the regular course of his duties proceeded 
 to clean the gun. He drew it back on the deck and 
 tipped the muzzle down towards the deck, steadying the 
 gun with his foot under the muzzle and proceeded to 
 polish the brass work of the gun with waste. In doing 
 
Contributory Negligence Defence Not Affected. 25- 
 
 so he pulled the spring near the breech which fired the 
 gun and the charge shattered his foot. He did not know- 
 that the gun was loaded but could easily have ascer- 
 tained it by opening the breech before starting to clean 
 the gun. The gun was a perfect one and the danger was 
 a necessary and inherent one. Judge Holt says on the 
 question of contributory negligence: 
 
 " The libelant's counsel claims that this case was 
 governed by the provisions of the Employers' Liability 
 Act either of New York or Massachusetts. It is a ques- 
 tion of some doubt whether either of these statutes can 
 be properly considered in this case. The accident oc- 
 curred at Marblehead, Mass., and the Massachusetts 
 act is not in evidence. The New York act cannot have 
 any application to an act occurring on a vessel in Mas- 
 sachusetts, except on the theory that the vessel was 
 registered or had her home port in New York. I have 
 examined the statutes in both New York and Massachu- 
 setts. The New York act (New York Laws of 1902,. 
 ch. 600) was based on the Massachusetts act (Massa- 
 chusetts Law of 1887, ch. 270), although differing from 
 it in various respects. Both acts only apply when an 
 employee is himself in the exercise of due care and 
 diligence at the time. In my opinion Sievers was not 
 exercising due care and diligence at the time. He waS' 
 entirely familiar with the mechanism of this gun. The 
 breech could have been opened by a single movement in 
 a second and if opened would have shown that the gun 
 was loaded. In my opinion any man who works about 
 a gun having it in a position which, if discharged, it 
 will injure him, is negligent, if he does so without first 
 ascertaining; whether it is loaded. Undoubtedly the 
 fact that Sievers was guilty of contributory negligence 
 would not completely bar a recovery under the general 
 
■26 The New York Employees' Liability Act. 
 
 rule in admiralty. It would only lead to a division in 
 damages. But, in my opinion, if a claim is based on 
 either the Employers' Liability Act of New York or 
 Massachusetts any contributory negligence bars the 
 Tight of recovery." 
 
 oec. 10. What is a " defect? " 
 
 A "defect," to be actionable under the act, must be 
 one which is the proximate cause of the resulting acci- 
 dent. {Hamilton v. Groesbech, 18 Out. Ap. 434; L. cG 
 A.. Rjj. Co. V. Binion, 98 Ala. 570; Mackay v. ^yatson 
 (1897), 23 S. C. Sess. Cas., 4th Series, 383; Fay v. Wil- 
 marth, 183 Mass. 71.) This term, as interpreted by the 
 courts, is a very broad one, and includes not merely 
 those cases in which the subject of the inquiry is faulty 
 for any purpose, but also the cases in which, while 
 perfect as to its general character and condition, it is 
 unsuitable to the uses to which it is applied. 
 
 An inquiry into the meaning of the term " defect in 
 condition " was had in Heske v. Samuelson, 12 Q. B. D. 
 30, in which the defect claimed was the absence of 
 fencing or sides to an elevator on which coal was from 
 time to time being elevated to the top of a blasting fur- 
 nace. Owing to the absence of such fencing a piece 
 of coal fell from one side of the elevator and killed a 
 workman. The argument for -the defendant was that 
 the elevator itself was perfect, so far as its condition 
 as a machine was concerned, and that the cause of the 
 accident was simply that the elevator had been put to a 
 purpose for which it was not well suited. The court 
 held, however, that the defendant was liable for using 
 in his works an elevator unsuitable for the purposes for 
 which it was to be employed. In reply to the argument 
 of defendant's counsel the court says : " The accident 
 
What is a Defect. 27 
 
 in question arose from a part of the plant used being 
 unfit for the purpose, and, that being so, it has arisen 
 from the defective condition of that part of the plant. 
 The condition of the plant was imperfect, considering 
 the purposes for which it was used. That being so, it 
 seems to me that there was a defect in its condition 
 within the meaning of the statute." While this action 
 was one brought for a defect in the condition of the 
 " plant," it is equally applicable to ways, works and 
 machinery, no express provision being made under the 
 Massachusetts or New York statutes for defects in 
 " plants."^ 
 
 In Geloneck v. Dean Steam Pump Co., 165 Mass. 202, 
 the action was for personal injuries occasioned to the 
 plaintiff by the falling upon him of a large iron pump, 
 which was loaded upon a truck he and others were 
 moving from one part of the defendant's works to an- 
 other. Plaintiff's contention was that there were no 
 washers on the truck and that their absence constituted 
 a defect. The court on this point says : " The jury was 
 instructed, in substance, that to constitute a defect in 
 the condition of ways, works or machinery, it was not 
 necessary that any particular instrument should be de- 
 fective in itself; that, for instance, the plaintiff need 
 not show that there was a fault in the truck; that it 
 had a cracked wheel or a broken axle tree or something 
 of that kind that gave way; that in the sense of the law 
 a thing can be found to be insufficient and unsuitable 
 for the purposes to which it is applied and is intended 
 to be applied, and under conditions in which it is used 
 
 3. See, also, Tate v. Leathern, J. Co., 10 Q. B. D. 5-9; Gunn v. 
 
 1 Q. B. D. 502-506; Witle^ v. ' N. Y., N. H. & H. R. Co., 171 
 
 Boston El. Light Co., 168 Mass. Mass. 417. 
 40-42; McQiffin. v. Palmers S. & 
 
28 The New York Employers' Liability Act. 
 
 and is intended to be used; that the condition is not 
 limited to M'hether there is something that has a weak 
 spot or is cracked or is decayed, but it involves the in- 
 quiry whether the appliances, as they are put together 
 and used and intended to be used, are reasonably safe 
 and suitable. In connection with this instruction the 
 jury was also told that the defendant was not obliged to 
 have a faultless arrangement or one with which nobody 
 could find any fault, but only to use reasonable care to 
 have things, reasonably safe and suitable. These in- 
 structions were correct, and unsuitableness of ways, 
 works or machinery for work intended to be done and 
 actually done by means of them is a defect within the 
 meaning of the statute of 1887, chapter 270, section 1, 
 clause 1, although the ways, works or machinery are 
 perfect in their kind, in good repair and suitable for 
 some work done in the employer's business other than 
 the work in doing which their unsuitableness causea 
 injury to the workman." The statement contained in 
 this case is also well settled at common law in New 
 York.* 
 
 In Donohue v. Washburn d Moen Mfg. Co., 169 Mass. 
 574, a set screw, a common device, and not out of order, 
 and which was put on in the usual way, was held not 
 to be in itself a defect in the ways, works and machin- 
 ery, but the court says it may be so used as to constitute 
 tiuch a defect. (See, also, Demers v. Marshall, 178 
 ilass. 9; Slattery v. Walker d Pratt Co., 179 Mass. 
 307.) 
 
 4. " The test is not whether the not have been obtained, but 
 
 master omitted something which whether that provided was in 
 
 he could have done, but whether, fact adequate and proper for the 
 
 in selecting tools and machinery use to which it was to be applied." 
 
 for their use, he was reasonably fttringham v. Hilton, 111 N. Y.- 
 
 prudcnt and careful. Not 188-196. 
 whether better machinery might 
 
Tbmporaey Appliances^ Instrumentalities^ etc. 29 
 
 Sec. II. Temporary appliances, instrumentalities, etc. 
 
 It has been held in Massachusetts that an appliance 
 does not become a part of the ways, works or machin- 
 ery under the act until it becomes a part of the perma- 
 nent structure or plant, and if a workman is killed 
 through the negligence of a fellow-servant engaged in 
 adjusting a new appliance to replace an old one which 
 has been broken his next of kin cannot recover. {Nye 
 V. Button, 187 Mass. 549; Beique v. Hosmer, 169 Mass. 
 341 ; Ashley v. Hart, 147 Mass. 573 ; O'Connor v. Neal, 
 153 Mass. 281.) 
 
 The fact that temporary scaffolding is not part of 
 the ways, etc., does not affect the liability of a defend- 
 ant for injuries which result from a negligent direction 
 by a superintendent to use uninspected and dangerous 
 staging. {Feeney v. York Mfg. Co., 189 Mass. 336; 
 White V. William. E. Perry Co., 190 Mass. 99. ) 
 
 Under New York law prior to the enactment of the 
 statute, an employer has been held not to be responsible 
 for the defects in the condition of appliances of a tem- 
 porary nature, which are details in the work to be per- 
 formed or instrumentalities by which the work is to be 
 done when he has furnished suitable and sufficient ma- 
 terial and competent persons to perform the work. In 
 Butler V. Townsend, 126 N. Y. 105, the court held that 
 a staging or scaffolding erected for workmen is not 
 a place in which their work is to be done within the 
 meaning of the rule requiring a man to furnish his ser- 
 vants with a suitable and safe place to do their work. 
 It is an appliance, or instrumentality, by which the 
 workmen do their work. Where a master places his 
 workmen upon a scaffolding for the construction of 
 which he has contracted with a careful and competent 
 builder, he is not liable for injury resulting from neglect 
 
30 The New Yoek Employers' Liability Act. 
 
 in its construction, and he is at liberty to accept it 
 without inspection. In this case the Court of Appeals 
 held that the " scaffolding was a detail of the servants' 
 work and the duty of the operatives, which they, and 
 not the master, were bound to perform." While the 
 rule as to scaffolding has been changed by the Labor 
 Law, chapter 415 of the Laws of 1897, section 18 (see 
 Chaffee v. Erie R. B. Co., 68 App. Div. 578, 73 Supp. 
 908; McLoughlin v. Eidlitz, 50 App. Div. 518), the gen- 
 eral statement in this case on the non-liability of the 
 master for so-called details, appliances and instru- 
 mentalities of work is still good law. (lAtchfield v. 
 Buffalo P. & P Ry. Co., 73 App. Div. 1, 76 Supp. 80", 
 De Vito V. Crage, 165 N. Y. 378; Golden v. Sieghardt, 
 33 App. Div. 161, 53 Supp. 460; Fink v. Slade, 66 App. 
 Div. 105, 74 Supp. 578; Leavitt's Code of Negligence, 
 69-71, and Cases.) 
 
 If the employer furnishes suitable materials for the 
 construction of a proper platform and the workmen 
 themselves construct it according to their own judg- 
 ment, defendant is not liable for the manner in which 
 they use the material so furnished. {Kimmer v. Web- 
 ber, 151 N. Y. 417.) It is undoubtedly true that it is 
 the duty of the master to keep a machine in order and 
 that he cannot delegate the duty so as to escape respon- 
 sibility. But this is a general rule and has its qualifi- 
 cations and limitations. One of them is that it is not 
 the master's duty to repair defects arising in the daily 
 use of an appliance for which proper and suitable mate- 
 rials are supplied, and which are not of a permanent 
 nature, or requiring the help of skilled mechanics, 
 {Cregan v. Marston, 126 N. Y. 568; see, also, Hussey 
 V. Coger, 112 N. Y. 618; Hogan v. Smith, 125 N. Y. 774; 
 Harlcy v. B. C. M. Co., 142 N. Y. 31; McCampbell v. 
 
Tempokart Appliances, Instrumentalities, etc. 31 
 
 Cunard S. 8. Co., 144 N. Y. 552 ; Webber v. Piper, 109' 
 N. Y. 496 ; Fink v. Slade, 66 App. Div. 105 ; Eackett v, 
 Masterson, 88 App. Div. 73; Moran v. Munson Steam- 
 ship Line, 82 App. Div. 489; Reynolds v. Merchants-. 
 Woolen Co., 168 Mass. mi; Fuller v. N. Y., N. H. & H. 
 B. R. Co., 175 Mass. 424; Mooney v. Beattie, 180 Mass. 
 451; Ashley v. Hart, 147 Mass. 573.) 
 
 Similar rulings have been had under the New York 
 Employers' Liability Act {Bellegarde v. Union Bag & 
 Paper Co., 90 App. Div. 577, 86 Sup. 72), and in 
 Massachusetts and England, holding that temporary 
 structures, staging, etc., are not ways, works and ma- 
 chinery.^ 
 
 In Miller v. N. Y., N. E. & E. R. R. Co., 175 Mass. 
 263, plaintiff was hurt by the breaking of a link con- 
 necting an engine with the car upon which he stood. 
 It was held error to instruct the jury that it was the 
 duty of the defendant to keep the links in such condi- 
 tion that they would be proper and sufficient for the 
 work to be done by them and to prevent the use of un- 
 suitable and unsafe links since defendant's whole duty 
 was performed when it furnished a sufficient supply 
 of suitable links. It is not the duty of the railway com- 
 pany to see that suitable links were selected. (See,, 
 also, Ellsbury v. N. Y., N. E. & E. R. R. Co., 172 Mass. 
 130.) A suitable gang-plank being furnished, there is 
 no duty incumbent upon the employer to see that it 
 was properly placed. {Trimble v. Whitin Machine 
 Works, 172 Mass. 150, 51 N. E. 463.) ' Nor is the em- 
 ployer responsible for lack of appliances arising from 
 temporary conditions in the progress of the work caused 
 
 5. AdasTcen v. Gilbert, 165 160 Mass. 457; Riley v. Tucker,. 
 Mass. 443; Lynch v. Allen, 160 179 Mass. 190; Carroll v. Willr 
 Mass. 248; Bv/rns v. Washlurn, cutt, 163 Mass. 221. 
 
32 The New York Employees' Liability Act. 
 
 by the negligence of fellow-workmen in their methods 
 adopted to do the work. (Cogan t\ Burnham, 175 
 Mass. 391.) Nor is the employer liable for injury re- 
 sulting from a defective plank and hook used as a tem- 
 porary incident of a particular job. {Harnois v. Cut- 
 ting, 174 Mass. 398.) Ropes used in lowering timber 
 on a trestle are not part of the ways, works, etc. 
 (Southern R. R. Co. v. Moore, 128 Ala. 434, 29 So. 659; 
 see, also, Georgia Pacific R. R. Co. v. Brooks, 84 Ala. 
 138; Clements v. Alabama, etc., R. W. Co., 124 Ala. 
 166, 28 So. 643; see, also, Thyng v. Pittsburg R. W. Co., 
 156 Mass. 113; Allen v. Smith Iron Co., 160 Mass. 557; 
 Reynolds v. Barnard, 168 Mass. 226; 46 N. E. 703; 
 Young v. B. d M. R. Co., 168 Mass. 219.) 
 
 Nor is the employer liable where an injury occurs by 
 a defect in ladders and staging built by another con- 
 tractor and used by the employer's workmen. (Riley 
 V. Tucker, 179 Mass. 190.) Where the injured em- 
 ployee was the agent through whom the employer un- 
 dertook to see that the ways, etc., are in proper repair 
 and condition, he cannot complain if personal injuries 
 are sustained by him by reason of defects in the con- 
 struction of such ways. (Pioneer M. & M. Co. v. 
 Thomas, 133 Ala. 279.) 
 
 Sec. 12. Permanent and quasi-pennanent appliances. 
 
 As has been shown in the last section, unless covered 
 by mandatory statutes, purely temporary appliances, 
 used simply as a means by which or upon which the 
 "work is to be done, do not constitute a part of the gen- 
 eral apparatus of the employer regularly used in his 
 business, and do not constitute ways, works or ma- 
 chinery within the act. A different question arises, 
 however, where the injury is occasioned by structures 
 
Permanent and Quasi-Pbemanent Appliances. 33 
 
 of a more or less permanent character. In Prindible v. 
 Conn. River. Mfg. Co., 160 Mass. 131, the plaintiff was 
 injured by the fall of a staging upon which he was 
 standing in piling up wood in defendant's yard, This 
 staging was of a permanent character and was moved 
 from place to place and used in piling wood. It was de- 
 signed to hold a quantity of wood and two men. A 
 defect in the condition of this staging was held to be a 
 defect in the ways, works and machinery of the em- 
 ployer. In McMahon v. McHale, 174 Mass. 320, plain- 
 tiff was injured by the fall of a derrick, erected for the 
 purpose of moving granite blocks from cars and placing 
 them conveniently for workmen to cut, and for reload- 
 ing cut stones and disposing of the refuse. This derrick 
 had been in constant use for four weeks and a defect 
 in the derrick which caused it to fall was held a defect 
 in the ways, works and machinery. The court held 
 that for the time being, and with respect to workingmen 
 employed in cutting stone there, the derrick was a piece 
 of machinery, a part of the fitting up of a stone yard, as 
 the staging used in piling piles of wood was a part of 
 the fitting up of a wood yard in the Prindible case, 
 supra, rather than an appliance to be put together and 
 set up and moved from place to place by workmen, who 
 were using it, as was the derrick in McGinty v. Athol 
 Reservoir Co., 155 Mass. 183. (See, also, Drommie v. 
 Eogan, 153 Mass. 29; McLean v. Cole, 175 Mass. 5; 
 Elmer v. Locke, 135 Mass. 575, and cases cited; Law- 
 less V. Conn. Rvo. Ry. Co., 136 Mass. 1; Joyce v. Wor- 
 cester, 140 Mass. 245; Leslie v. Granite R. R., 172 
 Mass. 468.) 
 
 In Haskell v. Cape Ann Anchor Works, 178 Mass. 
 
 485, plaintiff was injured by the fall of a bar of steel, 
 
 caused by the breaking of a defective link in the chain 
 
 supporting it. The chain used was the only one which 
 
 3 
 
34 The New York Employers' Liability Act. 
 
 could reasonably have been used under the circum- 
 stances, and was made on defendant's premises by a 
 fellow servant of the plaintiff, and the defect in the link 
 was due to its being made of old iron instead of new. 
 Tjhe court held that this chain was a permanent instru- 
 mentality, for defects in which defendant was liable. 
 
 " The plaintiff was not applying it to a special tem- 
 porary use which might have been in excess of even its 
 expected powers. (Harnois v. Cutting, 174 Mass. 398.) 
 The chain was not one of those small things which 
 wjould be going through a repeated course of wearing 
 OTit, and replacement which might and would be left to 
 the judgment of the plaintiff and his fellow servants to 
 decide when one was to be discarded, so long as the 
 defendant kept a stock of sound ones within reach. 
 ... It was not worn out but broke in consequence of 
 inherent defects which could, and should have been 
 avoided in. the manufacture, and that could not be 
 found out later. As to permanent appliances in gen- 
 eral, the fact that the approximate cause of the damage 
 was the negligence of a fellow servant in making them, 
 is no defense. (Ryalls v. Mechanics Mills, 150 Mass, 
 190-194.)" 
 
 Sec. 13. Incomplete buildings. 
 
 There is some confusion under the cases as to whether 
 a building in the course of construction or demolition 
 is a part of the ways, works or machinery of the con- 
 structor or builder. In Beique v. Hosmer, 160 Mass. 
 541, it was held that incomplete buildings were ncrt 
 within section " 1 " of the Massachusetts act, and were 
 not part of the ways, etc., of a subcontractor engaged in 
 building the structure, although the courts say a com- 
 pleted building would be. A similar ruling is contained 
 
Incomplete Buildings^ etc. 35 
 
 in Howe v. Finch, 17 Q. B. D. 187, in which case it was 
 decided that works in the course of erection and only 
 partly finished, which, although intended on completion 
 to be connected with and used in the employers' busi- 
 ness, were not so used at the time of the accident could 
 not be regarded as " works " within the meaning of the 
 act. In England the ruling seems to be that " buildings 
 in course of erection or demolition are the works for 
 the time being of the employers or contractors engaged 
 therein." This rule is so clear according to Mr. Kuegg 
 (see Euegg on Employers' Liability and Workmen's 
 Compensation, 5th ed., p. 81) that it has in numerous 
 cases under the act been assumed as a matter of course. 
 In support of this statement he cites Reynolds v. Hollo- 
 way, 14 T. L. R. 551, which held that a duty lay on an 
 employer to examine the condition of a house before 
 proceeding to demolish it, and that a failure in such 
 duty would render him liable. (See, also. Carter v. 
 Clarke, 78 L. T. 76. ) In Brannigan v. Robinson, 61 L. 
 J. Q. B. 202, 1892 ; 1 Q. B. 344, it was held that a plot 
 of ground in the course of being cleaned of old builds 
 ings, in order to form a site for new buildings, is the 
 works of the employer of labor who has contracted to 
 clean it and whose business it is to perform such conr 
 tract. This case held that the word " works " is not 
 confined to factories, workshops or permanent premises, 
 of the employer. (See, also, Bromley v. Cavendish 
 Spinning Co., 2 T. L. R. 881.) In this case the plaiiir 
 tiff in the ordinary course of his business had to pass 
 through a mill yard over a hole where a weighing ma- 
 chine was being erected. The hole was covered witli 
 boards, and while plaintiff was walking upon it one of 
 the boards tilted and caused the injury. It was held 
 that the place was a defective " way " within the mean- 
 
S6 The New York Employers' Liability Act. 
 
 ing of the act. Brannigan v. Robinson (1892, 1 Q. B. 
 S44) cited above, which, is the principal English case 
 bn defects in incomplete structures, has been disap- 
 proved in Massachusetts and not followed. ( See Lynch 
 h). Allen, 160 Mass. 249, citing O'Connor v. Neal, 153 
 Mass. 281; May v. Whittier Much. Co., 154 Mass. 29.) 
 In Pegram v. Dixon, 55 L. J. Q. B. 447, an unprotected 
 well hole in the house in the course of construction had 
 prior to the accident been used by workmen in ascend- 
 ing to the upper floors. When the accident happened 
 it was being used to convey rubbish to the ground be- 
 low, and rubbish was thrown into it as plaintifE was 
 ascending. This well hole was held to be a defective 
 ''way." (See, also, Lauter v. Duckworth, 48 N. E. 8865 
 Ind. Ap. 1897.) 
 
 Sec. 14. Temporary conditions and transitory risks not 
 defects in ways, etc. 
 The general rule as laid down in Massachusetts is 
 that defects which are merely in the temporary condi- 
 tion of the premises, or defects in works not completed, 
 are not defects in ways, works and machinery within 
 the meaning of the statute. " The absolute obligation 
 erf an employer to see that due care is used to provide 
 safe appliances for his workmen is not extended to all 
 -the passing risks which arise from short-lived causes 
 (Johnson v. Boston Tmv Boat Co., 135 Mass. 209; 
 Moynhan v. Hills Co., 146 Mass. 586, at 592 and 593; 
 Bjhjian v. Woonsocket Rubber Co., 164 Mass. 214-219) ; 
 nor is there any duty of supervision or warning extend- 
 ing to such temporary and transitory risks when the 
 only thing the employee does not know is the precise 
 time when the danger may exist. (McCann v. Kennedy, 
 167 Mass. 23.) These rulings find further support in 
 
Transitory Risks. 3T 
 
 MoOiffln V. Palmer Ship Building Co., 10 Q. B. D. 5j 
 which holds that a defect in a way must be something 
 defective in its permanent or quasi-permanent char? 
 acter, and a mere obstruction negligently placed 
 thereon does not make the way defective. (See cases 
 cited above.) 
 
 In Lynch v. Allen, 160 Mass. 248, the plaintiff was 
 injured by the caving in of a bank of earth on the land 
 of a third person. The court holds that the liability of 
 this bank of earth to fall if not shored up is not a defect 
 in the condition of ways, works and machinery, and 
 says : " The language of this section seems to us to 
 point to ways and works of a permanent character suclji 
 as are connected with or used in the business of the 
 employer." In Whittaker v. Bent, 167 Mass. 588, the 
 question considered by the court was whether the damp- 
 ness of moulds in a foundry, which is a purely teiu; 
 porary condition and cannot be discovered until the 
 moment of setting them up, was a defect under this sub; 
 division, and it was held that it was not. In Shea v. 
 Wellington, 163 Mass. 364, the question considered was 
 whether an exploder used in connection with defend- 
 ant's business and described as an article of merchan- 
 dise bought to be used and instantly consumed in prq- 
 ducing an explosion was part of the " ways," and it was 
 held to be not within this section. In Carroll v. Witl- 
 cutt, 163 Mass. 221, the court held, that a large stone 
 temporarily placed upon a staging of a building in the 
 course of erection, and in such a position that it was 
 likely to fall, was not a defect in the ways, works or 
 machinery of a contractor, saying : " This was merely 
 a condition of the material upon which the employees 
 were working — caused by their work and necessarily 
 incident to the business on which they were engage^." 
 In Willetts v. Watts & Co., 2 Q. B. D. 92, it was held 
 
38 The New York Emplotees' Liability Act. 
 
 that the temporary leaving open of a well hole was not 
 a defect in the condition of a " way," but only a negli- 
 gent use of the way. In Welch v. Qrace, 167 Mass. 
 590, the facts disclosed were these: Several dynamite 
 cartridges were used in blasting rock by being placed 
 in a series of holes drilled in the rock, and discharged 
 by an electric battery. Some of the dynamite cart- 
 ridges remained undischarged and afterwards exploded 
 and injured a workman trying to withdraw them. 
 " The evidence showed that sometimes the cartridges in 
 one of these holes would fail to discharge, and it ap- 
 peared that at the time of the accident the plaintiff's 
 husband found one of these deep holes in which the 
 cartridges remained undischarged after a blast in which 
 those in the other holes of the series had exploded. This 
 was merely a condition of the material upon which the 
 employees were working, caused by the work and neces- 
 sarily incident to the business in which they were en- 
 gaged. It was in no proper sense a defect in the ways, 
 works or machinery of defendant." (Citing Lynch v. 
 Allen, 160 Mass. 242-252; Carroll v. Willcutt, 163 Mass. 
 Z21; Willets v. Watts (1892), 2 Q. B. D. 92; McOiffin v. 
 Palmer Ship Building Co., 10 Q. B. D. 5; Howe v. 
 Finck, 17 Q. B. D. 187.) 
 
 In O'Connor v. Neal, 153 Mass. 281-283, and May v. 
 Whittier Mach. Co., 159 Mass. 29, the accidents were 
 occasioned by rubbish temporarily piled upon the floor 
 and this temporary condition was held not to be a defect 
 under the act In Morris v. Walworth Mfg. Co., 181 
 Mass. 326, the court held that planks nailed together 
 for a temporary purpose to make a bridge for workmen 
 could not be considered " ways " within the statute. 
 
 In McKay v. Hand, 168 Mass. 270 (1897), the ques- 
 tion was whether two ladders spliced together were part 
 
Trajnsitoey Kisks. 39 
 
 of the ways, works and machinery where the splicing i^ 
 done in the course of the work by the employees as 
 occasion demands. The court says, that while a ladder 
 itself may be part of the ways, works and machinery 
 (See Gripps v. Judge, 13 Q. B. D. 583), where ladders 
 are used as material for making a temporary structure 
 they do not fall within the meaning of the act The 
 court says : " The splicing of the ladders and placing 
 them in position were done by the plaintiff and his 
 fellow workmen, and the connection was a temporary 
 structure put up by workmen out of material selected 
 by them from ladders furnished by defendant. We 
 think the ladders so fastened together do not consti- 
 tute a part of the ways, works or machinery. (See, 
 also. Drum v.. N. E. Cotton Yarn Co., 180 Mass. 113.) 
 In the Birmingham Furnace & Mfg. Co. v. Cross, 97 
 Ala. 220, however, it was held that a ladder was not 
 part of the plant of a furnace company. ' 
 
 The common law rule in New York is to the samfe 
 effect, that the employer is not responsible and that th'e 
 principle of " a safe place " does not apply when the 
 prosecution of the work itself makes the place and 
 creates its danger. (See O'Connell v. Clark, 22 App. 
 Div. 466, 48 N. Y. Supp. 74; Brown v. Terry, 67 Ap^. 
 Div. 223, 73 Supp. 733; Batley v. Niagara Falls, Etc., 
 Co., 79 Hun, 466. ) The duty to furnish a safe place to 
 work does not apply to a case where the workman is 
 engaged in making safe an unsafe working place, or 
 where the work as being prosecuted involves the con- 
 struction of the place itself. The employer under such 
 circumstances fulfils his duty when he furnishes reason- 
 ably safe materials and appliances for the performance 
 of the work and selects competent servants to do it. 
 City of Qreeley v. Foster, 32 Ool. 293. 
 
40 The New York Employees' Liability Act. 
 
 Sec. 15. What are "ways," "works" and "machinery?" 
 
 In Willetts v. Watt & Co., 2 Q. B. D. 92, the word 
 " way " is defined by Lord Esher as " the course which 
 a workman would, under ordinary circumstances, take 
 in order to go from one part of the workshop or prem- 
 ises where a part of his employer's business is being 
 done to another part of the workshop or premises where 
 another part of his employer's business is being done, 
 when the business of his employer requires him to go or 
 be there, or when he goes there on business of his em- 
 ployer." On defects in ways, see Bromley v. Cavendish 
 Spinning Co., T. L. R. vol. 2, 881; Wood v. Dorrell, 
 T. L. R., vol. 2, 550; Lauter v. Duckworth, 48 N. E. 336. 
 
 Machinery has been defined as " every mechanical de- 
 vice or combination of mechanical powers and devices 
 to perform some function and produce a certain effect 
 or result." {Corning v. Burden, 15 Howard [U. S.] 
 267.) 
 
 Another definition of " machinery " is given in 
 Alabama, as follows : " The term, machinery, embraces 
 all the parts and instruments intended to be, and actu- 
 ally operated from time to time, exclusively by force 
 created and applied by mechanical apparatus or con- 
 trivance, though the initial force may be produced by 
 the muscular strength of man or animals, or by water, 
 or steam, or other inanimate agency. {Oa. Pac. Ry. 
 Co. V. Brooks, 84 Ala. 138, 140, 141.)" 
 
 Machinery means something more than " machine." 
 It includes whatever appurtenances are necessary to 
 the proper working of the machine, as dies in manu- 
 facturing tin-ware, the saw in saw-mills, the pipes of a 
 gas company, or the train on a railway. {Seavey v. 
 Cent. Ins. Co., 11 Mass. 541 ; Pierce v. George, 108 Mass. 
 
OWNEESHIP BY EMPLOYER NOT ESSENTIAL. 41 
 
 78 ; State v. Avery, 44 Vt. 629. ) " Works " has been de- 
 fined as the structure and grounds which compose the 
 factory of a manufacturing establishment, but there are 
 no judicial definitions of the word, as used under the 
 act. The words, " ways, works and machinery," has 
 been given a liberal interpretation under the act. ( See 
 O'Eeefe v. Brownell, 156 Mass. 133; Goppithorne v. 
 Hardy, 173 Mass. 400; Gunn v. N. Y., N. H. & E. Ry. 
 Co., 171 Mass. 417.) In Goppithorne v. Hardy, supra,. 
 the court held that a shafting, consisting of a cone shaft 
 with six pulleys attached to the ceiling by brackets and 
 screws and which fell by reason of its insufficient fasten- 
 ing, was part of the ways, works and machinery. In 
 Gunn V. N. Y., N. H. & H. Ry. Go., a truck consisting of 
 axle wheels and a frame fastened together, and fitted to 
 the tracks of a railway company, and ordinarily used 
 as a part of the appliances of the repair shop of the 
 company, was a part of its ways, works and machinery. 
 
 Sec. i6. Ownership of machinery by defendant not 
 essential. 
 It is not necessary that the ways, works or machinery 
 should be the property of the employer provided they 
 are connected with or used in his business.^* {Moyne- 
 han V. Kings Windsor Gement, etc.. Go., 168 Mass. 450 ;. 
 Lynch v. Allen, 160 Mass. 248.) The court says, in 
 Trask v. Old Golony Ry. Go., 156 Mass. 298, " It should 
 at least appear that the employer has the control of 
 them and that they are used in his business with his 
 authority, express or implied." A similar rule has been 
 
 5a. In Regan v. Donovan, 159 used by a railway company under 
 Mass. 1; Engel v. N. T., P. d B. a contract with B to deliver 
 R. Co., 160 Mass. 260, it was held freight, was not part of the' 
 that a track in a yard of A, " ways," etc., of the railway corn- 
 owned and repaired by him and pany. 
 
42 The New York Employees' Liability Act. 
 
 recently applied, at common law, by the Court of Ap- 
 peals in a case in which a defective pole used by a tele- 
 phone company as part of its permanent plant broke 
 and injured plaintiff. The pole was used by the de- 
 fendant by permission or license of another company, 
 which owned and erected it, and it was held that the 
 defendant was responsible to the injured employee in 
 failing to inspect and discover its defective condition. 
 The fact that the pole belonged to and was erected by 
 another company was held to be no defense. (McOuire 
 V. Bell Telephone Co., 167 N. Y. 208.) 
 
 Sec. 17. Tools not machinery, etc. 
 
 In Ga. Pac. By. Co. v. Brooks, 84 Ala. 138, the court 
 considered whether ordinary tools used by hand in the 
 performance of manual labor were, within the meaning 
 of the act, machinery, the specific tool in question being 
 a hammer. The court says : " A hammer is a tool or 
 instrument ordinarily used by one man in the perform- 
 ance of manual labor ; it may be an essential part of the 
 machinery when intended to be, and is operated by 
 means thereof, but when disconnected from any other 
 mechanical appliances and operated singly by muscu- 
 lar strength directly applied, such tool or instrument 
 is not machinery in its most comprehensive significa- 
 tion or in the meaning of the statute." To the same 
 effect is Clements v. A. G. 8. B. B. Co., 127 Ala. 166, 28 
 So. 643, which holds that a steel bar used by a section 
 hand on a railroad, being disconnected from any other 
 mechanical appliances and operated by muscular 
 strength directly applied, is not machinery within the 
 meaning of the statute. Rope, for example, is not part 
 of the ways, etc. {Southern By. Co. v. Moore, 128 Ala. 
 484; Clement v. Ala. Gt. 80. B. Co., 127 Ala. 166.) 
 
Ways, Etc., of Railroads. 43 
 
 Nor is a piece of wood used as a lever. {Allen v. Smith 
 Iron Co., 160 Mass. 557.) In the New York case of' 
 Buchanan v. Exch. Fire Ins. Co., 61 N. Y, 26, the word 
 " machinery " was held to include tools and implements 
 used in the manufacturing of paper, but the case was 
 solely one upon the construction of an insurance policy, 
 and the point at issue was simply the determination as 
 to how much was intended to be covered by the policy. 
 The Court of Appeals held that the word " machinery " 
 was used in its most comprehensive sense — to include 
 all the machinery and the tools and implements used 
 in the manufacture of paper. So broad a definition 
 cannot fairly be said to be given to the word machinery 
 as used in the act. 
 
 Sec. 1 8. Ways, works and machinery of railways. 
 
 By an amendment of the Massachusetts statute (R. 
 S., ch. 106, sec. 71, Acts Mass. 1893, ch. 359, sec. 1), 
 the act provides that a " car in use by or in possession 
 of a railway company shall be considered part of the 
 ways, works and machinery of the company, using or 
 having the same in possession within the meaning of 
 this act, where such car is owned by it or by some other 
 company or person." Prior to the enactment of this 
 amendment it was held in Coffee v. By., etc., Co., 155 
 Mass. 1, that an empty foreign car, which is simply be- 
 ing received and forwarded by the defendant without 
 using it for its own benefit, was not part of the ways, 
 works and machinery of a railway within the meaning 
 of the statute, and that accordingly a brake while on 
 such a car was not a defect for which the forwarding 
 company was responsible. It was held, however, in 
 Bonders v. Conn. River Ry. Co., 162 Mass. 312, a decision 
 rendered subsequent to the amendment referred to 
 
44 The New Yoek Employers' Liability Act. 
 
 above, but not based upon that statue, that a loaded 
 freight car of another railroad company hauled by de- 
 fendant over its own road, for the purpose of transport 
 ing freight in the ordinary course of its railway busi- 
 ness and for its own benefit, was part of the waySj 
 works and machinery. (See, also, L. & N. R. Co. v. 
 Davis, 91 Ala. 487.) Under the law, as it stood in 
 Massachusetts, before the amendment referred to above^ 
 a railway company which is simply engaged in for- 
 warding cars and not using them for its own benefit 
 was not held to any greater duty than the duty of in- 
 spection {Keith V. N. H. & W. R. Co., 140 Mass. 175), 
 and defects in the condition of such cars did not fall 
 within the provisions of the act, because the forward- 
 ing company owed no duty to its own employees to fur- 
 nish proper appliances or remedy defects in such cars. 
 (See Coffee v. N. Y., N. H. & H. R. R. Co., 155 Mass. 
 21 ; Thyng v. Fitchburg Ry. Co., 156 Mass. 713 ; MacJcin 
 V. B. d A. R. R. Co., 135 Mass. 201.) Where a railroad 
 company had received as consignee certain cars of coal, 
 which coal was for its own use, and a workman of the 
 railroad company engaged in unloading the car was 
 hurt by a defect in it, the railroad which employed him 
 is not liable, for the car was not a part of its ways, 
 works or machinery, and there was, therefore, no duty 
 on the consignee railroad to inspect the car. {Dunn v. 
 Boston d Northern Ry. Co., 189 Mass. 62.) In Massa- 
 chusetts, moreover, an inspector of cars has been held 
 to be a mere fellow servant with the other railway em- 
 ployees; also in Alabama. (See Coffee v. N. Y., etc., 
 R. Co., 155 Mass. 21; Mackin v. B. d A. R. R. Co., 135 
 Mass. 201; Deioey v. Detroit, etc., Ry. Co., 97 Mich. 
 329 ; Smoot v. Mobile, etc., Ry. Co., 67 Ala. 13. In New 
 York the liability, under the act, of railway companies 
 
Ways^ Etc., of Railroads. 45 
 
 handling foreign and defective cars will be somewhat 
 different owing to a difference in the common law be- 
 tween the New York rule and that of Massachusetts 
 and Alabama. In New York the duty of inspection is 
 a duty of the railway company, as employer, and can- 
 not be shifted. (See sec. 20, post.) The negligence of 
 a. car inspector is not the negligence of a co-employee, 
 but of the railway company itself, for which it is liable. 
 Moreover, under New York law a railway company is 
 bound to inspect foreign cars as it should inspect its 
 own, and is negligent if it takes cars which are known 
 to be defective and unsafe. (See Gottlieb v. N. Y., etc., 
 By. Co., 100 N. Y. 462; Goodrich v. N. Y. C. & H. R. B. 
 Co., 116 N. Y. 398; Eaton v. N. Y. C. & H. B. B. Co., 
 163 N. Y. 391; B. & P. B. Co. v. Mackey, 157 U. S. 72; 
 T. & P. B. Co. V. Archibald, 170 U. S. 665.) It may 
 reasonably be presumed that the necessity which caused 
 the amendment to the Massachusetts statute, quoted 
 above, would not exist in New York for the reasons just 
 given. It has also been held in Alabama that a railway 
 company using a foreign freight car is liable under the 
 statute for a defect in its condition to the same estent 
 as if the car belonged to the defendant. {Louisville, 
 •etc., By. Co. v. Davis, 91 Ala. 487; Ala. Gt. So. By. Co. 
 V. Carroll,^! Ma,. 126.) 
 
 Wires used as a part of the railway's electric system 
 of signals, transmitting an electric current, are part of 
 the ways, works and machinery of a railroad. (Brouil- 
 lette V. Conn. Biv. By. Co., 162 Mass. 198.) The same 
 is true of a truck used by a railroad company as part 
 •of the appliances of a repair shop. ( Gunn v. N. Y., N. 
 H. & H. By. Co., Ill Mass. 417.) A ladder or hand 
 hold on a freight car is a part of the ways, works and 
 machinery of a railway company in Alabama. {Louis- 
 e, etc.. By. Co. v. Pearson, 97 Ala. 211.) 
 
46 The New York Employers' Liability Act. 
 
 Defective cars used by a railway are within the act 
 {Louisville d N. Ry. Co. v. Pearson, 97 Ala. 211), and 
 defects in the permanent appliances ordinarily used 
 upon cars are defects in the ways, works and machinery 
 of railroads. Included among such defects are : 
 
 Improper and insufficient brake rods;® brakes;^ 
 draw-bars of unequal height;* insufficient or defective 
 coupling or coupling pins;® absence of cow catchers- 
 from engine;^" defective boilers on locomotives." 
 
 The rule previously set forth at section 11, regarding 
 appliances which are instrumentalities of the work, ap- 
 plies to railways, and negligence cannot be predicated 
 upon defects in such small articles of temporary use, 
 such as links and coupling pins, where the railway com- 
 pany has supplied a sufficient number of such links or 
 pins and the injury results simply from the negligence 
 of the employee in selecting improper links or pins. 
 (See Ellshury v. N. Y., N. H. & H. Ry. Co., 172 Mass. 
 1.30 ; Miller v. Same, 175 Mass. 263 ; Thyng v. Pittsburg 
 Ry. Co., 156 Mass. 13 ; Young v. B. & N. Ry. Co., 168 
 Mass. 219) ; or in the inspection of the instrumentali- 
 ties by the employee when it is his duty to keep it in 
 repair; {Drum v. New England Cotton Yarn Co., 180 
 Mass. 113; Wyman v. Clark, 180 Mass. 173) ; or to 
 adjust it. {Rodwell v. Moore, 180 Mass. 590.) 
 
 Similar rulings, holding railroads liable for defects, 
 
 6. L. & N. Ry. Co. v. Campbell, 9. Boland v. L. £ N. Ry. Co., 
 97 Ala. 147; Campbell v. L. & N. 106 Ala. 641; Boland v. L. & 2f. 
 Ry. Co., 109 Ala. 520. Ry. Co., 96 Ala. 626. 
 
 7. Spalding v. Flynt Oranite 10. Tenn. C. d I. Co. v. Kyle,. 
 Co., 159 Mass. 587; Perdue v. L. 93 Ala. 1. 
 
 d N. Ry. Co., 10 Ala. 535; Binion 11. Bridges v. Tenn. O. & I. Co.,. 
 V. L. & N. Ry. Co., 98 Ala. 570. 109 Ala. 287. 
 
 8. Bowers v. Conn. R. R. Co., 
 162 Mass. 312. 
 
Miscellaneous Defects in Ways. 4T 
 
 have been made under New York law before the passage 
 of the statute. (See for example regarding defective 
 drawheads, Gottlieb v. N. Y., L. E. & W. By. Co., lOa 
 N. Y. 462; Ooodrich v. N. Y. C. & H. Riv. By. Co., 116. 
 N. Y. 398; Hannigan v. L. & H. By. Co., 157 N. Y. 244. 
 As to defective engines, see Kirkpatrick v. N. Y. C, etc., 
 Ry. Co., 79 N. Y. 240; Fuller >v. Jewett, 80 N. Y. 46. 
 Defective boilers, Keegan v. Western By. Co., 8 N. Y» 
 175. Defects in appliances of flat cars for carrying 
 lumber, Hushby v. N. Y., etc.. By. Co., 107 N. Y. 374. 
 Defective brakes, Lilly v. N. Y., etc.. By. Co., 107 N. Y. 
 566, 573. Defective draw bolts, Bima v. Bossie Iron 
 Works, 120 N. Y. 433. Defective buffers, Ellis v. N. Y.^ 
 L. E. & W. B. Co., 95 N. Y. 546.) 
 
 Sec. ig. Miscellaneous cases of defects in ways, etc. 
 
 In McNamara v. Logan, 100 Ala. 187, a boy was in- 
 jured while driving a mining car down grade in a mine 
 entry. He was crushed in the narrow space between 
 the wall and the car. The evidence for the plaintiff 
 showed that the space between the wall and the car 
 was only a foot and a half wide, and that it was unsafe 
 This was held a defect in the ways of the defendant. 
 
 The absence of hooks or stays to a ladder used in an 
 engine room for the purpose of turning on steam to an 
 engine some distance above the floor may be a defect 
 in the condition of the plant. {Wehlin v. Ballard, 17 
 Q. B. D. 122.) 
 
 The absence of a lock or other fastening upon a 
 switch may constitute a defect in the ways. (Birming- 
 ham B. B. Co. V. Allen, 99 Ala. 359.) 
 
 An unguarded ditch across a railroad track, into 
 which plaintiff's intestate fell while assisting in pulling 
 a car along a railroad track, may be a defect in the 
 
48 The New Yoek Employees' Liability Act, 
 
 ways of a railroad, company, and the question is one 
 for the jury. {Chistafson v. Washburn d Moen Mfg. 
 Co., 153 Mass. 468.) The absence of a side guard on 
 a circular saw is a defect. {Tate v. Lathem [1897], 1 
 Q. B. D. 502.) 
 
 An interesting New York common law case on de- 
 fects in ways is Dorney v. O'Neill, 49 App. Div. 8. In 
 this case a hallway, used for the entrance and exit of 
 employees of the defendant, was dark and several 
 "wheelers" (i. e., baskets on wheels used to cart wood 
 about the building) were stored in this passageway 
 through which plaintiff had to go in leaving his work 
 in the evening. The injuries received by plaintiff were 
 occasioned by coming in contact with one of these 
 wheelers. In reversing a nonsuit the court says : " The 
 duty of the master is not only to furnish his employee 
 with a reasonably safe place to work in and reasonable 
 safe access and egress to and from the premises, but, 
 also, having control of the time, place and conditions 
 under which the servant is required to labor, to guard 
 him against probable danger in all cases in which that 
 may be done by the exercise of reasonable cars, (i/c- 
 Govern v. C. V. B. R. Co., 123 N. Y. 280, 287.) It 
 cannot be said, as a matter of law, that this duty has 
 been discharged by furnishing a hallway through which 
 the servant must pass at night, and in the dark, and in 
 which the master has caused to be placed material of 
 such a character that involuntary contact must cause 
 injuries as serious as that which the plaintiff has sus- 
 tained." 
 
The Superintendence Clause. 49 
 
 CHAPTER III, 
 
 Changes Effected by the Act in the Responsibility 
 OF Employers foe the Acts of Persons Exercising 
 Superintendence. 
 
 Sec. 20. Common law, " fellow servant," rule in New York. 
 The common law rule, so thoroughly established in 
 all jurisdictions that citation upon it is unnecessary, is 
 that an employer is, ordinarily, not responsible to an 
 employee who is injured by the negligence of a fellow 
 servant in the same general employment of the same 
 employer. The courts have differed in their methods of 
 determining what servants are fellow servants for 
 whom the employer is not liable, and what servants are 
 such representatives of the master, that he becomes re- 
 sponsible for their negligence. The New York rule for 
 determining this question is the so-called rule of 
 Crispin v. Bahlitt (81 N. Y. 516), which is the leading 
 case on this subject and which lays down the following 
 doctrine : " The liability of the master does not de- 
 pend upon the grade or the rank of the employee whose 
 negligence occasioned the injury. However low the 
 grade or rank of the employee, the master is liable for 
 the injuries caused by him to another servant, if they 
 result from the omission of some duty of the master 
 which he had evaded. But such inferior employee, if 
 the act is one which pertains only to the duty of the 
 operative, the employee performing it is a mere servant, 
 and the master, though liable to strangers, is not liable 
 
50 The New York Employees' Liability Act. 
 
 to a fellow servant for his improper performances." 
 Under this rule the question to determine in all cases 
 is this — Is the duty, the negligent discharge or omis- 
 sion of which causes injury, one which is imposed on 
 the master as such by law? There are certain definite 
 duties imposed upon the employer for the greater safety 
 of his employees, which are well known and elementary. 
 He must, for example, exercise reasonable care to fur- 
 nish the employee a safe place in which to work; he 
 must use reasonable care in the selection of his co-em- 
 ployees and in selecting competent fellow servants in 
 suflBcient number to do the work in safety, and in pro- 
 viding instrumentalities of service; he is bound to use 
 ordinary care, diligence and skill to keep them in safe 
 condition by such proper inspection as the circum- 
 stances may require; he must prescribe and enforce 
 rules sufficient for the orderly and safe management of 
 his business and keep the servants informed of these 
 rules so fas as may be needed for their guidance to warn 
 them against unusual risks. Those duties imposed by 
 law upon the master for the safety of his employees 
 cannot be shifted from his shoulders so as to change his 
 liability. Where the law requires the master to exer- 
 cise reasonable care, for example, to furnish his em- 
 ployees with a reasonably safe place to work, the 
 employer is responsible for such safety, and if such 
 safety is not provided, either owing to his personal neg- 
 ligence or the negligence of any one, no matter what his 
 name, grade or rank may be, to whom he entrusts the 
 performance of that duty, no matter how generally, 
 .competent and efficient this agent may be to whom is 
 entrusted the performance of their duties, the employer 
 still remains liable for negligence in the performance of 
 that duty. Cases illustrative of this rule are collected 
 
The Common Law Fellow Servant Eulb. 51 
 
 below.* (See exhaustive collection of New York cases 
 in Leavitt's Code Of Negligence, p. 6Q, and following.) 
 From an examination of the foregoing cases it will 
 be found that the New York common law test for an 
 employer's liability consists solely in determining 
 whether or not the act done, which is claimed to have 
 been negligent, was an act which the law requires the 
 master to do in carrying out his common law functions 
 as master. The fact, standing alone, that the person 
 performing the negligent act was a person placed in 
 actual control over the one whom his negligence has 
 injured, does not at common law enlarge the employer's 
 responsibility, even though the negligent act was an act 
 performed in the exercise of superintendence.^ 
 
 1. Simone v. Kirk, 173 N. Y. 7; 
 Laning v. By. Co., 49 N. Y. 521; 
 Flike V. Ry. Co., 53 N. Y. 549; 
 Crispin v. BdbUtt, 81 N. Y. 516; 
 MoGosker v. Long Island R. R. 
 Co., 84 N. Y. 77; Brick v. Ro- 
 chester Ry. Co., 98 N. Y. 211; 
 Bankins v. N. T., L. E. & W. Ry. 
 Co., 142 N. Y. 416; Cullen v. 
 Norton, 126 N. Y. 1; Hussey v. 
 Coger, 112 N. Y. 614; Perry v. 
 Rogers, 157 N. Y. 251; Cappaso 
 V. Woolfolk, 163 N. Y. 472; 
 Byrne v. Eastman's Go. of N. Y., 
 163 N. Y. 461; Neubauer v. Ry. 
 Co., 101 N. Y. 607; Keenan v. 
 y. T. G. R. R. Co., 145 N. Y. 190; 
 LoughUn v. Btate, 105 N. Y. 159; 
 Scarff V. Metcalfe, 107 N. Y. 211; 
 Oahrielaon v. Waydell, 135 N. Y. 
 1; Geoghan v. Atlas 8. 8. Co., 
 146 N. Y. 369; ilaneuso v. 
 Cataract Gonstr. Co., 87 Hun, 
 519; Yitto v. Keagan, 15 App. 
 
 Div. 329; Mwphy v. Coney la- 
 lamd amd B. R. Co., 65 App. Div. 
 546, 73 Supp. 18; TuUy v. N. T. 
 & Temas 8. B. Co., 10 App. Div. 
 463; Daly v. Brown, 45 ^pp. Div. 
 428; Sohott v. Onondaga Bank, 
 49 App. Div. 503; Reilly v. 
 O'Brien, 53 Hun, 147; Walters v. 
 Geo. A. Fuller Co., 74 App. Div^ 
 388, 77 Supp. 681; Madigan v. 
 Oceania Steam Navigation Co., 82 
 A. D. 206; Boelter v. Mo- 
 Donald, 82 A. D. 423. 
 
 2. The court says, in Bofnaglg 
 V. N. Y. Central R. R. Co., 55 
 N. Y. 608, " The functions of giv- 
 ing directions as to the proper 
 manner of performing the worlc is 
 not one of those absolute per- 
 sonal functions for the careful 
 discharge of -which the master is 
 responsible whatever agents h» 
 may employ." (MoGosker v. L. 
 I. R. R. Co., 84 N. Y. 77; 
 
52 The New York Employees' Liability Act. 
 
 A similar rule exists under the common law in 
 Massachusetts and is applied in the cases not brought 
 under the Employers' Liability Act.* 
 
 The Court of Appeals has usually given the rule just 
 set forth a narrow construction, unfavorable to the in- 
 jured employee. (See cases cited in note two and the 
 criticism upon them contained in note to section 231 of 
 Shearman & Eedfield on Negligence, 5th edition. ) 
 
 Sec. 21. The superior servant rule. 
 
 The rule as modified by the Employers' Liability Act 
 of 1902 does not diminish or take away in any respect 
 the liability of the employer for his personal negligence, 
 or for the negligence of any person to whom he has seen 
 fit to intrust the performance of his personal duty. His 
 liability as declared in Crispin v. Babbitt and the cases 
 following its doctrine still remains. The Employers' 
 
 Loughlin v. The State, 105 N. Y. B. B. Co., 136 Mass. 1 ; (Hllman v. 
 
 129 ; Cullen v. Norton, 126 N. Y. Oreat Eastern B. W. Co., 13 Allen, 
 
 1; Reilly v. O'Brien, 53 Hun, 440.) "The rule accepted by the 
 
 147; Flet v. Uunter Arms Co., 74 great majority of courts Is that for 
 
 App. Div. 572, 77 Supp. 752 ; the purpose of determining whether 
 
 Mahoney v. Oil Co., 76 Hun, 579, the negligent employee is one of 
 
 28 Supp. 196.) those for whose acts the master is 
 
 3. In 1887 it was settled law in responsible, the fact that one ser- 
 
 Massachusetts that masters were vant has control over another is 
 
 personally bound to see that rea- immaterial and that a master is 
 
 sonable care was used, to pro- not responsible for the negligence 
 
 vide reasonably safe and proper of a superior servant in giving 
 
 machinery so that if the duty orders whereby injury is sustained 
 
 was entrusted to another and was by the inferior servant." {Moody 
 
 not performed, the fact that the v. Hamilton Mcmufacturmg Co., 
 
 proximate cause of the damage 159 Mass. 70; also, Howard v. 
 
 was the negligence of a fellow Hood, 155 Mass. 391; Benson v. 
 
 servant, was no defence. (Byalls Goodwin, 147 Mass. 237; Flynn v. 
 
 V. Mechanics Mills, 150 Mass. Campbell, 160 Mass. 128.) 
 190-194; Lawless v. Conn. River 
 
The Superior Servant Eule. 53 
 
 Liability Act, however, supplements this existing lia- 
 bility by making an employer also responsible for an 
 injury which occurs to his employee occasioned " by 
 reason of the negligence of any person in the service of 
 the employer, entrusted with and exercising superin- 
 tendence, whose sole or principal duty is that of super- 
 intendence, or in the absence of such superintendent,, 
 of any person acting as superintendent with the author- 
 ity or consent of such employer." 
 
 As has just been observed, under the New York com- 
 mon law rule, as laid down in Crispin v. Bahhitt, the 
 fact that the negligent employee actually exercises 
 superintendence over the employee injured, is not con- 
 clusive in determining whether the negligent employee 
 is a co-employee, for whose negligence the master is not 
 liable, or a vice-principal or agent for A^hose negligence 
 he is legally bound. There are other States, however^ 
 in which, irrespective of statute law, the question 
 whether a negligent employee was exercising superin- 
 tendence and supervision is controlling in determining 
 the employer's responsibility. In these States where 
 a negligent act is done by a person superior to the 
 person injured, the fact of superiority makes the negli- 
 gent person not a fellow servant but a vice-principal, 
 for whose acts the master is liable. There is much 
 confusion among the cases as to the exact meaning of 
 a " superior " person. The rule is clear, but its appli- 
 cation leads to many uncertainties. Among the States 
 following this doctrine, the liability of the master at- 
 taches to a negligent act or omission of such superior 
 person, quite irrespective of whether the act was or 
 was not one, the performance of which would be under 
 the New York rule a non-deligible personal duty' of the 
 master. The act done by the superior servant, however, 
 
54 The New York Employees' Liability Act. 
 
 from which the injury occurs, must relate to his duties 
 and powers and be within the scope of his authority 
 as a superior servant, and must not be simply an act 
 done in a relation of co-servant to the injured employee. 
 " Where the master appoints an agent with a super- 
 intending control over the work and with power to 
 employ and discharge hands and to direct and control 
 their movements in and about the works, the agent 
 stands in the place of the master." {Stephens v. Han- 
 nibal d St. Jo. B. B. Co., 86 Missouri, 221.) If the 
 servant has been injured by the negligence of a superior 
 servant having the right to control, and while executing 
 tlip order of the superior about a matter which the 
 superior has a right to control, then such a superior 
 servant is as to the inferior a vice-principal, and his 
 negligence is that of the master. {Coal Creek Miniiiy 
 Co. V. Davis, 90 Tenn. 711.) The cases given in the 
 note below illustrate the extent to which this so-called 
 superior servant doctrine is adopted in the United 
 States.* 
 
 Under the cases given below, the right and power to 
 direct employees and the power to employ or discharge 
 become important in determining whether the master, 
 who has delegated such powers to the negligent servant, 
 shall be responsible. 
 
 4. Reference should be had to If. R. R. Oo. v. Lahr, 86 Tenn. 335 ; 
 the remarkably full and exhaustive Cowlea v. Richmond, etc., Ry. Co., 
 note covering the cases contained 84 N. C. 309; Patton v. Western, 
 in 51 Lawyers' Reps. Ann. 513, etc., Ry. Co., 96 N. C. 455; Oarl- 
 giving the citation both of the New son v. N. W. Tel. Ex. Co., 63 Minn. 
 York rule and the superior servant 438; Moon v. Richmond, etc., Ry. 
 doctrine. (See, also, Beach on Co., 78 Va. 745; Mo. Pao. R. R. 
 Contributory Negligence, sec. 327, Co. v. WilUams, 75 Tex. 4; Gal- 
 Crawford's Ed.; Chic, d Alton R. veston, etc., R. R. Oo. v. Smith, 
 R. Co. V. May, 108 111. 288; L. <£ 76 Tex. 611.) 
 
SUPEKINTENDBNOB PROVISIONS COMPARED. 55 
 
 Sec. 22. The added rule as to acts of superintendence; 
 statutes compared. 
 
 The New York act provides that " where, after the 
 passage of this act, personal injury is caused to an em- 
 ployee, w^ho is himself in the exercise of due care and 
 diligence at the time, by reason of the negligence of any 
 person in the service of the employer, entrusted with 
 and exercising superintendence, and whose sole or prin* 
 cipal duty is that of superintendence, or in the absence 
 of such superintendent, of any person acting as superin- 
 tendent, with the authority or consent of such em- 
 ployer " . . . " the employee " . . . " shall 
 have the same right of compensation and remedies 
 against the employer, as if the employee had not been 
 an employee of, nor in the service of the employer, nor 
 engaged in his work." The Massachusetts act is simi- 
 lar to the New York law in the provision quoted above. 
 The English act provides, " where, after the enactment 
 of this act, personal injury is caused to a workman." 
 . . . " 2, by reason of the negligence of any person 
 in the service of the employer, who has any superin- 
 tendence entrusted to him, whilst in the exercise of 
 such superintendence " . . . " the workman " 
 . . . " shall have the same rights of compensation 
 and remedy against the employer, as if the workman 
 had not been a workman of, nor in the service of the 
 employer, nor engaged in his work." 
 
 The English law provides, however, at section 8, that 
 the expression " a person who has superintendence en- 
 trusted to him " means " a person whose sole or princi- 
 pal duty is that of superintendence and who is not 
 ordinarily engaged in manual labor." The Alabama law 
 provides that "when personal injury is received by a 
 person or employee in the service or business of the 
 
56 The New York Employers' Liability Act. 
 
 master or employer, the master or employer is liable to 
 answer in damages to such servant or employee as if he 
 were a stranger and not engaged in such service or em- 
 ployment in the cases following. . . . When the 
 injury is caused by reason of the negligence of any per- 
 son in the service or employment of the master or em- 
 ployer who has any superintendence entrusted to him, 
 whilst in the exercise of such superintendence." The 
 Alabama law, however, does not qualify or define super- 
 intendence in the manner in which the English act 
 qualifies and defines the term as quoted above. No 
 case in Alabama has yet decided whether superintend- 
 ence is to be understood in the limited sense in which 
 it is used in the other liability acts, meaning simply the 
 acts of those persons whose sole or principal duty is 
 superintendence, or whether it includes persons who 
 exercise any superintendence. It is to be assumed, 
 however, that having enacted substantially the English 
 law, it takes the word " superintendent " with the 
 meaning which attaches to it in England under the 
 statute there. {Birmingham By. Co. v. Allen, 99 Ala. 
 359; Mobile, etc., Ry. Co. v. Holborn, 84 Ala. 133.) 
 The question, however, seems to be still an open one. 
 
 Sec. 23. Meaning of superintendence clause. 
 
 The effect of subdivision 2 of section 1 of the Em- 
 ployers' Liability Act given above, is to ingraft to a 
 limited extent upon the New York law the so-called 
 superior servant doctrine as defined in the cases cited 
 in section 21, so that in an action brought under this 
 subdivision of the Employers' Liability Act, the master 
 becomes responsible for the negligent act of one servant 
 causing injury to another, not only when the act itself 
 is one, the performance of which is a non-deligible duty 
 
Meaning of Superintendence Provisions. 57 
 
 of the master himself under the common law doctrine- 
 of Crispin v. Babbitt (see section 20), but the master 
 also becomes responsible where the negligent act was- 
 done by one exercising superintendence, when the act 
 or omission itself was done in the process of superin- 
 tendence by a person whose sole or principal duty was 
 one of superintendence. The addition which the 
 Liability Act makes to the law, as a supplement to the 
 common law doctrine of the Crispin v. Babbitt case, 
 has been recognized by the Court of Appeals. As that 
 court observes in Gmaehle v. Rosenberg (178 N. Y. 
 147), " Now while we are not prepared to say whether 
 the statute has in any respect increased the liability of 
 the master for defective ways, works or machinery, 
 it is clear that it has given an additional cause of 
 action where it prescribes that the master shall be 
 liable for the negligence of the superintendent or any 
 person acting as such. At common law while the mas- 
 ter was liable for the fault of his alter ego to whom he 
 entrusted the whole management of the work, with the 
 power to employ or discharge servants, he was not 
 liable for the negligence of a foreman merely as such." 
 
 As that court has more recently observed in Harris 
 V. Baltimore Machine and Elevator Works (188 N. Y. 
 141) : " It [the Employers' Liability Act] gave an addi- 
 tional cause of action because it prescribed that a 
 master shall be liable for the negligence of the super- 
 intendent or the person acting as such {Gmaehle v. 
 Rosenberg, 178 N. Y. 147). At common law such a 
 liability was not recognized unless the superintending 
 servant was the alter ego of the master with respect 
 to the work." 
 
 As the Appellate Division, Second Department, has 
 said in Rosin v. JMgerwood Mfg. Company (89 App. 
 
58 The New Yoek Employees' Liability Act. 
 
 Div. 245) : "The mischief against which the common 
 law did not provide was that it did not provide for 
 damages for one who was injured through the negli- 
 gence of a fellow servant, unless that servant was in a 
 position where he acted for and in the discharge of a 
 duty owed by the master. To cure this supposed de- 
 fect, the Legislature has extended the liability of the 
 jnaster who must answer for an injfury daa to taa 
 negligence of any person in the service of the employer 
 entrusted with and exercising superintendence. . . . 
 That is, the Legislature has given to employees a new 
 cause of action ; a cause of action which did not accrue 
 at common law because of the negligence of a superin- 
 tendent, unless he was discharging a duty which be- 
 longed to the master, and it has provided that smh 
 employee shall have the same right of compensation 
 and remedies as though the relation of master and 
 servant did not exist. In other words, facts and cir- 
 cumstances which did not heretofore constitute action- 
 able negligence are by the statute placed upon the 
 same footing with common law actions for negligence, 
 and the remedy provided for this new right, which 
 must be exclusive {City of Rochester v. Cainphell, 123 
 N. Y. 425), is by section 2 of the statute made to de- 
 pend upon the service of a notice giving the time, place 
 and cause of the injury to the employer within 120 days 
 -after the injury." 
 
 " The Employers' Liability Act was passed to ob- 
 viate the injustice to workmen, that employers should 
 •escape liability where persons having superintendence 
 and control in the employment were guilty of negli- 
 gence causing injury to the workmen." {liellegarde 
 V. Union Bag & Paper Co., 90 App. Div. 577, affirmed, 
 no opinion, 181 N. Y. 519, citing Griffiths v. Lord Dud- 
 ley, 9 Q. B. D. 357. 
 
Meaning of Superintendence Provisions. 59 
 
 The Appellate Division, in the First Department 
 has said in Currdn v. Manhattan Railway Co., 103 
 Supp. 351, 118 App. Div. 347 ; "At common law the mas- 
 ter is not liable to his employee for the negligent acts 
 of a superintendent in the management and detail of 
 the work. Although the superintendent is of a higher 
 degree than the one injured, he is still a servant as to 
 the detail and management of the work, and not the 
 alter ego of the master, and his negligence in those 
 respects is the negligence of a co-servant, for which the 
 master is not responsible. (Loughlin v. State of New 
 York, 105 N. Y. 159; Cullen v. Norton, 126 N. Y. 1; 
 Bi/an V. Third Avenue Railroad Company, 92 App. Div. 
 306. ) It was to relieve from the harshness of this rule 
 that the Employers' Liability Act was enacted by the 
 legislatures. {Bellegarde v. Union Bag & Paper Co., 
 90 App. Div. 577; affirmed, 181 N. Y. 519; Cmaehle v. 
 Rosenberg, 178 N. Y. 147.) (See, also, Chisholm v. 
 Manhattan Ry. Co., 116 App. Div. 320, 101 Supp. 622.) 
 
 The Appellate Division, Fourth Department, in 
 iruilmartin v. Solvay Process Company, 101 Supp. 118, 
 has apparently given the superintendence clause of the 
 act a construction not in accord with the decisions 
 above cited and not in accord with the act itself. The 
 court in that case substantially holds that the superin- 
 tendence clause is nothing more than a re-enactment in 
 statutory form of the common law rule laid down in 
 Crispin v. BahUtt (81 N. Y. 516) and McCosker v. 
 Long Island Ry. Co. (84 N. Y. 77). 
 
 In the Guilmartin case the negligent act was clearly 
 done by one entrusted with superintendence, and under 
 the authorities, (though the decision holds to the con- 
 trary) , was also one done in the exercise of superintend- 
 ence. The act, however, was not one of the non-de- 
 
60 The New York Employers' Liability Act. 
 
 ligible duties of the master in such sense that in 
 performing it the superintendent at common law would 
 be construed as a vice-principal under the rules laid 
 down in Crispin v. Babbitt and McCosker v. Lonff 
 Island Railroad Go. The court holds that the superin- 
 tendence clause of the Liability Act does not change 
 the rule in these two cases so as to enlarge the re- 
 sponsibility of the employer. It gives the act such 
 construction that instead of being as its title would 
 indicate " an act to extend the liability of employers," 
 etc., it is one rather to codify and declare existing law. 
 It construes the superintendence clause in such man- 
 ner that an injured plaintiff must show, in order to 
 obtain relief under this clause, not only that the acci- 
 dent resulted from the negligence of a superintendent, 
 exercising superintendence (that is, that the negligent 
 act itself was an act or omission in superintendence), 
 but also, what the act nowhere provides, that the negli- 
 gent thing done by this superintendent should be an 
 act, the performance of which is expressly charged by 
 law upon the employer as a duty which he cannot dele- 
 gate to another. The decision is contrary to the New 
 York cases and to decisions of other states and of Eng- 
 land on this matter and engrafts upon the act a limita- 
 tion not contained in it and which is contrary to its 
 express purpose. 
 
 Sec. 24. The eifect of the " superintendence clause," 
 
 There are many cases construing the meaning of this 
 section (subd. 2 of sec. 1), and the greater portion of 
 the cases brought under the Liability Acts have been 
 brought under its provisions. It will be observed from 
 a consideration of these cases, which will be given 
 more in detail later in the chapter, that to create a 
 
Effect of Superintendence Clause. 61 
 
 liability under this subdivision, tbree elements must 
 concur: 1st, a negligent act or omission; 2d, which is 
 performed or omitted by a person whose sole or prin- 
 cipal duty is that of superintendence, and 3d, the 
 negligent act or omission itself must be done or omitted 
 in the exercise of superintendence. {Quinlan v. Lack- 
 uwanna Steele Co., 107 A. D. 176, 94 Sup. 942; Belle- 
 garde V. Union Bag & Paper Co., 90 A. D. 577, 86 Sup. 
 72; McBride v. New York Tunnel Co., 101 A. D. 448, 
 92 Sup. 282; McHugh v. Manhattan By. Co., 179 N. Y, 
 378; McLaughlin v. Interurl)an 8t. By. Co., 101 A. D. 
 134, 91 Sup. 883; Hughes v. Bussell, 104 A. D. 
 144, 93 Sup. 307.) When these three elements 
 concur, and not otherwise, the statute gives the injured 
 employee " the same right of compensation and remedy 
 against the employer as if the employee had not been an 
 employee of, nor in the service of the employer, nor 
 engaged in his work." After some uncertainty the con- 
 struction finally adopted for these words last quoted 
 (which occur in the English, Massachusetts and New 
 York laws), is that the defense of common employment 
 is removed when the action is brought for an injury 
 occasioned by any negligent act or omission specified 
 in this section of the law. The employer has left to 
 him then as against his employee only the same defenses 
 which he would have against any other person who 
 comes into his premises upon business [Thomas v. 
 Quartermaine, 18 Q. B. D. 685, 700), and who is neither 
 a trespasser nor a bare licensee (Mobile, etc., By. Co. 
 V. Holhorn, 84 Ala. 133, 136; Coffee v. N. Y., etc., By. 
 Co., 155 Mass. 21, 22.) The Appellate Division, Third 
 Department, in Bellegarde v. Union Bag & Paper Co., 
 90 A. D. 577, 86 Sup. 72, affd. no opinion 181 N. Y. 519, 
 says on this point : "We do not think the language of the 
 
62 The New York Employers' Liability Act. 
 
 act has the eiiect of making an employee a mere licensee 
 upon tlie employer's premises, or that it was the intent 
 of the Legislature to put him in the class of persons to 
 whom the employer owed no duty of exercising reason- 
 able care." The early English cases on the construction 
 of the English Act of 1880 (Weblin v. Ballard, 17 Q. 
 B. D. 122) hold that these words quoted above had the 
 further effect of taking away the defense that the em- 
 ployee had assumed the risk of injury from any of the 
 causes specified in section 1 of the act, and this con- 
 struction was apparently considered the proper one in 
 Massachusetts in Ryalls v. Mechanics Mills, 150 Mass. 
 190. On this point these cases have not been followed, 
 however, and the rule is well established, both in Eng- 
 land and Massachusetts, that the section quoted above 
 has had no effect in modifying or changing the doctrine 
 of assumed risk. (See chap. V.) 
 
 Sec. 25. The employee does not assume the risk of super- 
 intendent's negligence. 
 Under the common law one of the ordinary risks of 
 an employment is the possibility of injury by a fellow 
 servant. Under the general common law rule, in force 
 in New York, the fact that a negligent person whose 
 act causes the injury is in control of the person who 
 is injured thereby, does not add to or take from the 
 liability of the master, unless the injury was occasioned 
 while the negligent servant was performing some non- 
 deligible duty of the employer. ( Simone v. Kirk, 173 N. 
 Y. 7. ) The negligence of a fellow servant gives the in- 
 jured servant no cause of action at common law against 
 the employer, and one of the reasons for this established 
 and elementary rule is that the employee injured, by 
 his contract of employment, is held to have assumed 
 
Negligence of Superintendent Not Assumed. 63 
 
 the risk of injury by the negligence of a fellow employee. 
 The employee at common law is presumed to have as- 
 sumed the risk of being injured by the negligence of the 
 foreman when the foreman is performing his ordinary 
 functions {Ryan v. Third Ave. Ry. Co., 92 A. D. 306;. 
 Cullen V. Norton, 126 N. Y. 1 ; Perry v. Rogers, 157 N. 
 Y. 251), and is not performing one of the personal, 
 non-deligible duties of the master. (Hawkins v. N. Y., 
 L. E. & W. Ry. Go., 142 N. Y. 416.) 
 
 If the employee, under the Liability Act, by entering 
 upon or continuing in the business of the employer 
 assumes the risk of injury by the negligent act or 
 omission of the person " whose sole or principal duty is 
 that of superintendence," in the same way that he as- 
 sumes the risk of the foreman's negligence at common 
 law, the provisions of subdivision 2 of article 1 are 
 obviously without force. It has been held, however, 
 that this defense has been taken away by the statute 
 and that the employee does not assume the risk of in- 
 jury either from the incompetence or the negligence of 
 a person whose principal duty is that of superintend- 
 ence. (Faith V. N. Y. Central & H. R. R. Co., 109 A. D. 
 222, 95 Sup. 774, affd. no opinion 185 N. Y. 556; Belle- 
 garde v.. Union B. & P. Co., 90 A. D. 577, 86 Sup. 
 72.) This question was first raised in Massachusetts, 
 in Malcolm 1). Fuller, 152 Mass. 160. In this case 
 a quarryman, in general charge of a quarry, finding 
 that the wadding still remained in a hole which he had 
 assisted in drilling and loading with powder and had 
 attempted to discharge, negligently assumed that the 
 charge had exploded and had passed off through another 
 hole by a crevice in the rock, and, deciding to drill out 
 the wadding, directed a fellow servant to hold the drill. 
 The servant did so, while the quarryman did the 
 
64 The New Yoek Employees' Liability Act, 
 
 striking, whereupon the charge exploded, injuring the 
 workman. It was contended by the defendant that the 
 risk of such an explosion was one of the assumed risks 
 of the employment, and that the negligence of the 
 superintendent was also one of the assumed risks. 
 Defendant relied upon Kenney v. Shaw, 133 Mass. 501, 
 which, in its facts, closely resembled the case at bar, 
 and which held that the plaintiff assumed the risk of 
 his own negligence, of the negligence of the superin- 
 tendent and of the explosion of gunpowder without 
 negligenca The court, after citing this case, says: 
 " The object of the statute of 1887, chapter 270, section 
 1, clause 2, is to make the defendant liable for and to 
 prevent the plaintiff from assuming one of those risks, 
 and the one which the jury found caused his injury. 
 This plaintiff clearly did not assume the risk of all 
 danger from explosions of gunpowder, however caused, 
 in the course of his employment, and the instruction 
 given at the request of the defendant that ' if the 
 plaintiff, when he undertook to hold the drill in the 
 hole, knew that it was dangerous and continued to hold 
 it, although he did so unwillingly and under orders of 
 another, he cannot recover, but must be taken to have 
 assumed the risk which he has knowingly undertaken,' 
 was certainly suflQciently favorable to the defendant. 
 The risk that the defendant or his superintendent would 
 negligently attempt to remove a charge of gunpowder 
 by drilling into a hole that had been charged before 
 ascertaining that the charge had exploded, was not one 
 of the risks of his employment which the plaintiff as- 
 sumes."^ 
 
 5. With this case should be forth the New York common law 
 contrasted the case of Cullen v. rule on a state of facts very nearly 
 Norton, 126 N. Y. 1, which sets the same aa in the case above cited. 
 
Negligence of StfPERiNTBNDENT Not Assumed. 65 
 
 In Davis v. N. Y., N. H. & Hartford R. R. Co., 159 
 Mass. 532, cited with approval in McHugh v. Manhattan 
 Ry. Co., 179 N. Y. 378, on this point the court says: 
 " It is suggested that the plaintiff took the risks of the 
 danger. In general, it is not negligent not to anticipate 
 wrongful negligence on the part of defendant {Hayes 
 V. Hyde Park, 153 Mass. 514), and assuming that there 
 is a difference in the proposition, a workman does not 
 take the risk that a person entrusted by his employer 
 with, and exercising superintendence will be negligent 
 in the exercise of that duty. If he were held to do so, 
 the statute would be made of no avail." (See, also, 
 Emith V. Baker [1891], A. C. 325; McPhee v. Scully, 
 163 Mass. 216; Murphy v. N. Y., N. H. & H. Ry. Co., 
 187 Mass. 18; Rapson v. Leighton, 187 Mass. 432; 
 Meagher v. Crawford Laundry Machine Co., 172 Mass. 
 324; Mahoney v. Bay State Pink Granite Co., 184 Mass. 
 287; Murphy v. City Coal Co., 172 Mass. 324.) 
 
 In this action, plaintiff's intestate servant, for which the master was 
 was killed while employed as a not liable, and that the plaintiff's 
 laborer by defendant in his quarry intestate had assumed the risk; 
 and engaged in drilling rock for " the master furnished the mine as 
 Hasting under the direction of de- a place for labor, and it was solely 
 fendant's foreman. After a blast on account of the manner in which 
 it was found that the cLarge in the foreman, a fellow servant, 
 one of the holes had not exploded. performed the work or directed 
 The foreman examined it and it, that the accident happened, 
 found the fuse unconsumed but and happened in the course of the 
 failed to remove it. He set performance of the very kind and 
 •other workmen to work, drilling, character of work which plain- 
 within two feet, and directed tiff's intestate took the ris': of by 
 plaintiff's intestate to drill at a accepting the employment.'' The 
 place some thirty feet distant. court held that the injury re- 
 The fuse caught fire and the suited from a detail of the work- 
 charge in the hole exploded, killing ing or management of the business, 
 plaintiff's intestate. The Court of the risks attending which had been 
 Appeals held that the negligence of assumed by the party taking the 
 the foreman was that of a fellow employment. 
 5 
 
66 The New Yoek Employeus' Liability Act. 
 
 This doctrine, that a servant does not assume the 
 risk of injury by the negligence of his superintendent, 
 d6es not mean that a servant can blindly rely on the 
 direction of the superintendent in disregard of an 
 obvious risk of danger concerning which he needs no 
 warning. The superintendent owes no duty of warning 
 tte employee against obvious dangers. {Qavin v. Fall 
 River A.utomatiG Telephone Co., 185 Mass. 78; Stuart 
 V. West JiJnd Ry. Co., 163 Mass. 391 ; Meehan v. Holyoke 
 Street Ry. Co., 186 Mass. 571; Downey v. Sawyer, 157 
 Mass. 418.) If injury follows under such circum- 
 stances, plaintiff cannot recover because the risk of 
 injury has been assumed. ( See sec. 52 and following. ) 
 In Tanner v. N. Y., etc., R. R. Co., 180 Mass. 572, the 
 plaintiff was employed in transferring wires from an 
 old set of poles to a new one. He climbed one of the 
 old poles for the purpose of throwing down the wires 
 from the cross arms, and these wires fell across a wire 
 guy connecting the pole with the fence. There was an 
 overseer standing near the foot of the pole directing 
 the work, and plaintiff told him that the wires were 
 crossed on the guy and asked him what to do. The 
 overseer told him to cut the guy, which the plaintiff 
 did, and the pole fell causing the injuries for which 
 the action was brought. 
 
 The court held that plaintiff could not recover, on 
 the ground that the risk of the falling of the decayed 
 pole was an assumed risk which plaintiff accepted in 
 his employment of dismantling the old pole. The denial 
 of recovery, however, was not based on the ground 
 that plaintiff had assumed the risk of the overseer's 
 carelessness, the court apparently assuming both that 
 this overseer was a superintendent, and that the 
 direction to cut the guy was itself an act of superin- 
 tendence. 
 
Who Are Superintendents? 67 
 
 Sec. 26. Who are superintendents? 
 
 It has been said that " The use of the word superin- 
 tendent in the statute suggests to the mind at once the 
 idea of one who superintends, of one who has general 
 authority, who stands in relation to the particular 
 work in the same relation as the master would stand if 
 he were personally present. The statute in its spirit 
 says that it proposes to enlarge the liability of the mas- 
 ter by making him liable for the negligence of the 
 master as represented by the superintendent whom he 
 has selected. That in addition to the common law 
 duties, the master shall see to it that the man who is 
 placed in charge of his work shall not in the exercise 
 of the authority of the master involve the employees in 
 danger, and the scope of the enactment should not be 
 enlarged to attempt to hold the employer liable for 
 every act of every individual who at any given moment 
 assumes to be acting with authority." (Abrahamson 
 V. General Supply & Construction Co., 112 App. Div. 
 318.) 
 
 The test for the master's responsibility suggested by 
 this quotation that a superintendent must be one who 
 has general authority is not in accord with the cases, 
 and brings into the act a limitation not contained in 
 its language. The test which -the act declares for the 
 master's responsibility is whether or not the person 
 charged with negligence has been entrusted with 
 superintendence to such an extent that superintendence 
 is his principal employment. This is the sole test 
 which the act itself supplies and no requirement is con- 
 tained in it that the person charged with negligence 
 should be one entrusted with general authority, but the 
 question is solely as to whether superintendence over 
 men of some sort is his principal occupation. As will 
 
68 The New York Employees' Liability Act. 
 
 be seen by cases reviewed in subsequent sections, 
 the test for the employer's liability, under this sec^ 
 tion, depends on adequate proof that the negligent per- 
 son was, at the time of the injury, entrusted with and 
 exercising superintendence, and that his sole or princi- 
 pal duty was that of superintendence. {Bannon v. N. Y. 
 C. & H. B. R. Co., 112 A. D. 552, 98 Sup. 770.) In deter- 
 mining the question whether a person is acting as super- 
 intendent, within the meaning of this section, various 
 elements have been made important as evidence. (!See, 
 for illustrative cases, sees. 26 and 29 following.) The 
 fact that the person charged with being superintendent 
 was accustomed to give directions to other employees; 
 that he had power to employ and discharge; that he 
 gave directions as to the commencement or termination 
 of the work ; that he received greater pay than the other 
 employees to whom he gave directions; that his work 
 was to a less extent manual labor, or the portion of 
 his duty which consisted of manual labor was less than 
 that of the other employees; that he customarily 
 exercised authority, {McBride v. N. Y. Tunnel Co., 101 
 A. D. 448, 92 Sup. 282; Brauberg v. Solomon, 102 A. D. 
 330, 92 Sup. 506; McHugh v. Manhattan By. Co., 179 
 N. Y. 378; Hughes v. Bussell, 104 A. D. 144, 93 Sup. 
 3j07; McLaughlin v. Interurhan Street By. Co., 101 A. D. 
 134, 91 Sup. 883), and facts and circumstances are 
 admissible from which it might be assumed by the jury 
 that such a person was acting as superintendent, or 
 where his authority to do the act complained of is 
 denied, the course of business in. general practice, show- 
 ing that such act was ordinarily done by the person 
 alleged to be superintendent may raise the inference 
 that his actions were known to and approved by the 
 defendant (Edgar v. N. Y., N. E. & H. By. Co., 188 
 Mass. 420; McCahe v. Shields, 175 Mass. 438.) 
 
Sufficient Evidence of Superintendence. 69 
 
 Sec. 27. The question of superintendence ordinarily one for 
 the jury. 
 The inference to be drawn from the evidence touching 
 the question whether the person whose negligence caused 
 the injury was or was not a superintendent, is ordinarily 
 one for the jury, and it iS only in those rare case^ 
 where the facts are undisputed that such question be^ 
 comes one of law for the court.® 
 
 Sec. 28. What is sufficient evidence of superintendence? 
 
 The following are some of the cases which have 
 passed upon the question as to who are superintendents 
 within the meaning of the act. 
 
 In McHugh v. Manhattan Railway Company (170 
 N. Y. 378), the person charged with negligence was d 
 train dispatcher, whose duty it was to see that coupling 
 was made between cars and of giving signals to start 
 trains. He was held to be a superintendent. 
 
 In McBride v. New York Tunnel Company (101 App. 
 Div. 448, 92 Supp. 282), the negligence charged was of 
 one Martin, who represented defendant in directing 
 drillers where they should drill for inserting ex- 
 plosives. He directed the preparation of blasting and 
 had immediate and general superintendence of the 
 prosecution of the work in a heading, having general 
 direction and control with authority to discharge men 
 in this work. He was held to be a superintendent. 
 
 In Randall v. Holbrook Contracting Company (95 
 
 6. Eaves v. Atlantic Novelty B. Co., 170 Mass. 298; O'Brien v. 
 
 Mfg. Co., 176 Mass. 369; Knight Rideout, 161 Mass. 170; Burns v. 
 
 V. Overman Wheel Co., 174 Mass. Washburn, 160 Mass. 457; Rqse- 
 
 455- Brady v. Jforcross, 174 hack v. Aetna Mills, ISSMslss. 379; 
 
 Mass. 442; Trimble v. Whitin Cashman v. Chase, 156 Mass. 342; 
 
 Machine Co., 172 Mass. 150; Bhaffers v. Gen. 8. N. Co., 10 Q. 
 
 Cunningham v. Lyrvn <6 Boston 8. B. D. 356. 
 
TO The New Yoek Employees' Liability Act. 
 
 App. Div. 336, 88 Sup. 681), the negligence charged was 
 of one Domenico who was known as foreman on the 
 work and who had given orders in the prosecution of 
 the work. He was held to be a superintendent. 
 
 In Braunberg v. Solomon (102 App. Div. 330, 92 
 gupp. 506), the person charged with negligence was 
 an ordinary foreman who had and exercised the power 
 of directing employees in their work. He was held to 
 be a superintendent. (See, also, Carlson v. United 
 Eng. & Con. Co., 113 App. Div. 371, 98 Sup. 1036.) 
 
 In Mahoney v. N. Y. d N. E. B. R. Co., 160 Mass, 
 573, the person upon whose superintendence the de- 
 fendant's liability depended was a section foreman in 
 the employ of a railroad corporation, having charge 
 and superintendence over a gang of five men, his duty 
 being to take receipts, check freight into cars, see that 
 it was loaded into the right cars, and under his direc- 
 tion the five men were working all the time in handling 
 freight. This was held sufficient to authorize a finding 
 that his principal duty was that of superintendence. 
 In Riou V. Rockport Granite Co., Ill Mass. 162, de- 
 fendant's foreman was called as a witness by plaintiff 
 and testified, in answer to questions put to him, that 
 it took most of his time telling the men what to do and 
 giving them work, and in reply to the question : " Dur- 
 ing the whole day did you keep run of the men and keep 
 them at work alnd tell them what to do and what not to 
 do? " he answered, " Yes." This was held sufficient 
 evidence that his principal duty was superintendence. 
 
 In Prendible v. Conn. Riv. Mfg. Co., 160 Mass. 131, 
 an action was brought for injuries occasioned by the 
 falling of a staging, which was erected in the yard of 
 defendant's saw mill by the side of wood pile, for the 
 purpose of enabling the workmen to pile the wood 
 
Sufficient Evidence of Supeeintendbnce. 71 
 
 higher. There was evidence that the staging was built 
 by one Campbell, who was in the defendant's emBloy, 
 assisted by a number of the " piling gang ;" that no one 
 gave any orders to this gang besides Campbell, who was 
 its foreman; that he sometimes worked with his hands, 
 but worked when he pleased and did whatever work h^ 
 pleased; that when he was working he was overseeing 
 the men and giving them directions ; that he placed men 
 at work whenever he saw fit and hired workmen at 
 different times on their application to him for work. 
 Two of defendant's witnesses also testified that Camp- 
 bell had general authority over the gang of workmepi 
 The court held that a jury would be warranted in find*- 
 ing that Campbell's principal duty was superintendj- 
 ence. In McCabe v. Shields, 175 Mass. 438, the court 
 permitted proof to be introduced of acts of an allege<J 
 superintendent in putting people out of the shop and 
 his language at the time he did it, as bearing upon hi^ 
 conduct in the shop in matters of control. Similar 
 statements of an alleged superintendent have been pei^- 
 mitted as proof of his superintendence in Osborne v. 
 Jackson, 11 Q. B. D. 619. In Gardner v. N. E. Tele,. 
 Co., 170 Mass. 156, the foreman, known as such, and 
 employed by the defendant, sometimes did work of the 
 same character as the other employees. They received 
 their orders from him alone, and he employed and dis- 
 charged men for the defendant. In field work and else- 
 where he had entire charge of the men, and his wages 
 were $20 per month more than those of the plaintiff. 
 It was held that the jury could determine from these 
 facts that he was acting as superintendent. In 
 O'Brien v. Look, 171 Mass. 36, there was evidence tha,t 
 the foreman employed and discharged men; that he had 
 seventeen men to whom he gave orders as to the time in 
 
72 The New York Employers' Liability Act. 
 
 which to begin and quit work and as to the manner of" 
 its performance; and also that he received higher 
 wages than the others because he was boss or foreman. 
 This was sufficient evidence of superintendence. In 
 Davis V. N. Y., etc., R. B. Co., 159 Mass. 532, the fore- 
 man of a gang of laborers, engaged in track repairing, 
 not at work himself, but looking on and seeing that 
 the work was done, and who was there among other 
 purposes to warn the section men of the approach of 
 the trains, was held to be a person entrusted with 
 superintendence, distinguishing Shepard v. B. & M. B. 
 Co., 158 Mass. 174, which held without qualification 
 that a section foreman was not a superintendent for 
 whose negligence the railroad should answer when the 
 injuries were occasioned by the negligent movement of 
 a hand car on which a gang of workmen was riding. 
 (See, also. Murphy v. N. Y., N. E. & E. By. Co., 187. 
 Mass. 18.) 
 
 In Malcolm v. Fuller, 152 Mass. 160, the action was 
 for injuries received by the employee of a quarryman, 
 claimed to have been received from the negligence of a 
 superintendent named Stewart. Plaintiff's evidence 
 showed that Stewart, while he assisted in the various 
 manual labors of blasting, such as striking the drill and 
 sinking and loading the hole in the rock, getting the 
 powder out of the powder house and discharging the 
 blasts, was the only one at the quarry in general charge 
 of the work, being most of his time occupied in super- 
 intending men ; that he put them to work and told them 
 to leave off when the time came, and they got their 
 orders from him alone ; that he looked about to see who 
 was working, and, if there was a man lacking anywhere 
 would supply his place; that in particular he saw to 
 it that the cutters of paving stones had plenty of stock 
 
Sufficient Evidence of Superintendence. 73: 
 
 with which to work. This, with other evidence, was 
 held sufficient evidence of superintendence. In Rey- 
 nolds V. Barnard, 168 Mass. 220 (1897), it was shown 
 that defendant's son was foreman of the job on which 
 the accident occurred, and that he had charge of it. 
 The majority of the court held that this was enough to 
 justify plaintiff in his contention that it was a question 
 for the jury as to whether the principal duty of thi» 
 foreman was not superintendence, notwithstanding th& 
 fact that this foreman did manual labor and was en- 
 gaged in laying slate on another section of the roof at 
 the time of the accident. 
 
 In Geloneck v. Dean Steam Pump Co., 165 Mass. 202,. 
 the negligence complained of was of one Ryan. Plain- 
 tiff was injured while working in defendant's yard, 
 engaged in loading and unloading pumps for transpor- 
 tation. The testimony showed that Eyan had charge of 
 the yard, loading and unloading, and in responses to 
 the question as to whether or not Ryan used to work 
 with his hands, plaintiff answered, "Just telling the 
 people to do their work; just taking charge of them." 
 Ryan himself said that he was engaged principally in 
 loading and unloading and had been yard foreman for 
 eight or ten years, and that he worked principally with 
 his hands. The question was one for the jury. 
 
 In Carroll v. Willcutt, 163 Mass. 221, the negligence 
 complained of was of one George Grant. Plaintiff 
 testified, " George Grant had charge of the work there ; 
 he gave his orders to every man in the place; I got my 
 orders from him; I didn't notice any difference when 
 Willcutt (the defendant) was there; he (Grant) acted 
 all the time as though he were boss there, foreman ; he 
 took the plans and read them and laid out the work for 
 them." The question was one for the jury. In 
 
74 The New York Employees' Liability Act. 
 
 Mahoney v. Bay State Pink Chranite Co., 184 Mass. 287, 
 the person claimed to be a superintendent was one who 
 gave directions to 22 men employed in a stone quarry, 
 who marked with chalk the places where drilling was 
 to be done and he did no drilling himself. It was held 
 that he was a superintendent. 
 
 Sec. 2g. Superintendence must be of men and not of 
 things. 
 The word superintendence itself, in its ordinary 
 meaning, of course implies direction, and directions 
 can only be given to persons. It has accordingly been 
 held that persons whose sole or principal duty is the 
 control or operation of machinery, or who have the 
 superintendence of machinery rather than of the indi- 
 viduals who operate it, are not within the meaning of 
 the act. The only superintendence covered by the act 
 is the superintendence exercised over •employees.'' It 
 has been held accordingly that the employer is not 
 liable for the negligence of a person whose duty is the 
 operation of a piece of machinery, though in so doing 
 he necessarily exercises some control over other em- 
 ployees who are affected by its movements. {Farnham 
 V. New Bank Coal Co. (1896), 23 Sc. Sess. Cas., 4th 
 Series, 722.) In this case a recovery was denied where 
 the negligence was that of the engineer of a hoisting 
 •cage in a mine. Nor is the employer liable for a person 
 in charge of a lever by which a steam hammer is 
 
 7. See Dwntzley v. DeBardele- Ala. 240; Culver v. Ala. M. Ry. 
 
 hen O. & I. Co., 101 Ala. 309; Co., \Q6 A\a..iZQ; Birmingham Ry. 
 
 Oashman v. Chase, 156 Mass. 342; d E. Co. v. Baylor, 101 Ala. 488; 
 
 Shaffers v. Qeneral Steam "Naviga- Roseback v. Aetna Mills, 158 Mass. 
 
 tion Co., 10 Q. B. D. 356; Kansas 379. 
 City M. d B. Ry. Co. v. Burton, 97 
 
Superintendence Must be of Men. 75 
 
 worked and whose business it is to let fall the hammer. 
 {Hannan v. Hudson, 7 W. N. 105.) Nor for the negli- 
 gence of a workman whose duty it is to guide by means 
 of a guy-rope the beam of a crane used for lowering 
 sacks of wheat into a ship's hold, and to give directions 
 when the chain fall is to be lowered or hoisted. [Shaf- 
 fers V. General Steam Nav. Co. (1883), L. E. 10 Q. B. 
 Div. 356. Nor for the negligence of a banksman en- 
 gaged in loading a barge, whose duty it is to give sig- 
 nals to the driver of the crane when to raise or lower 
 the bucket. (Glaxton v. Mowlen (1888), 4 Times L. E. 
 756.) 
 
 Nor is an employee whose usual work it is to operate 
 a machine made a vice-principal by the fact that it is 
 his business when the machine gets out of order to 
 notify the employee who does the repairs to put it in 
 order. (Roseback v. Aetna Mills (1893), 158 Mass. 379.) 
 
 Applying this principle that the superintendence 
 must be directed to the superintendence of persons, it 
 was held in Sullivan v. Thorndyke Co., 175 Mass. 41, 
 that an instruction to the jury was correct, when they 
 were told that if the person, whom it was claimed was 
 a superintendent, had the right to say to the plaintiff 
 " Take these goods upstairs," and it was the duty of the 
 injured servant to obey this direction, that would be 
 superintendence; but if the delinquent merely pointed 
 out where the goods were to go, that would not be 
 superintendence. 
 
 Sec. 30. Manual labor to disprove superintendence. 
 
 Ordinarily the fact that the alleged superintendent 
 is engaged in manual labor and the portion of time 
 ordinarily spent by him in manual labor, is important 
 in determining the question whether he was acting as 
 
76 The New Yoek Employees' Liability Act. 
 
 superintendent as his sole or principal duty. {Hughes 
 V. Russell, 104 App. Div. 144, 93 Sup. 307; McConnell 
 V. Morse Iron Works & Dry Dock Co., 187, N. Y. 
 341) ; McLaughlin v. Interurban Street Railway Co., 
 101 App. Div. 134, 91 Supp. 83; Abrahamson v. 
 General Supply & Construction Co., 112 App. Div. 
 318.) (See sec. 31, post.) The fact of manual 
 labor, however, is not conclusive of the question 
 as to whether his principal duty is that of super- 
 intendence. " If you have a person whose sole or prin- 
 cipal duty is to superintend the work of others, the 
 master will be liable for injuries to those who act in 
 obedience to his orders even though such superintend- 
 ent should himself casually do manual labor." Kellard 
 V. Rooke, L. K., 19 Q. B. Div. 585; {Crowley v. Cutting, 
 165 Mass. 436 ; Malcolm v. Fuller, 152 Mass. 160 ; Rey- 
 nolds V. Barnard, 168 Mass. 226; Gardner v. New 
 England Teleph. & Teleg. Co., 170 Mass. 156.) As the 
 court says in Canney v. Walkeine, 51 C. C. A. 63, 113 
 Fed. 66, 58 L. K. A. 33 : " The result of these decisions 
 undoubtedly establishes as a general rule what is. re- 
 stated in Reynolds v. Barnard, 168 Mass. 226, that 
 when an employee works with his hands the greater 
 portion of the time, he cannot superintend, within the 
 purview of the statute ; but they do not compel us to the 
 conclusion that this rule is absolute, and to be applied 
 without qualification under exceptional circumstances. 
 When, as said in what we have already quoted from 
 Gardner v. New England Telephone & Telegraph Co., 
 the alleged superintendent is only ' a mere laborer in 
 charge of the gang,' this general rule might well be ap- 
 plied, if not as a rule of law, at least as a rule of pre- 
 sumption of fact so forcible that the court would not 
 allow a jury to disregard it. To go further, however, 
 
Manual Labor and Supeeintendence. 77 
 
 than to state it ordinarily as illustrative for the guid- 
 ance of juries, would give an artificial construction to 
 a statute which seems simple, plain on its face, and 
 reasonable in its purpose and it would also hold that 
 the court could assume to know that a man cannot 
 work constantly with his hands, and yet exercise super- 
 intendence in such manner that that is his principal 
 duty. Such an assumption would be so forced as to 
 exclude the possibility, which the common mind knows 
 to exist, — that not only may an employee be engaged 
 at all times in labor with his hands, and yet exercise 
 superintendence under such circumstances that that is 
 his principal duty, but that also he may be so engaged 
 Tinder such peculiar circumstances that quite continu- 
 ous laboring with his hands is a necessary part of the 
 duty of superintendence." In Geloneck v. Dean Steam 
 Fump Co., 165 Mass. 202 (see page 73), it was shown 
 that the foreman in defendant's yard had time to work 
 with his hands and did so work. The court held, not- 
 withstanding this fact, that the question of superin- 
 tendence was one for the jury. In Knight v. Overman 
 Wheel Co., 174 Mass. 455, there was a conflict of 'evi- 
 dence, one side offering proof that the alleged superin- 
 tendent's work was manual labor, and the other side 
 showed that he worked very little and was principally 
 employed in directing the men, and the question was 
 held to be one for the jury. ( See, also, McPhee v. Scully, 
 16.3 Mass. 216 ; Mahoney v. N. Y. & N. E. B. B. Co., 160 
 Mass. 573; Dean v. Smith, 165 Mass. 569.) 
 
 Sec. 31. Insufficient proof of superintendence. 
 
 Mere incidental authority to exercise some minor au- 
 thority over others possessed by one whose general work 
 is that of an ordinary co-employee is not enough to 
 
78 The New Yokk Employees' Liability Act. 
 
 charge the employer. The work of superintendence 
 must be the " sole or principal duty " of the person to 
 make him a superintendent under the act. Thus in 
 McConnell v. Morse Iron Wiyrks & Dry Dock Co., de- 
 cided by the Court of Appeals in 187 N. Y. 341, the 
 person who was charged to have been a superint€ndent 
 A\ as a steam-fitter, for whose error in judgment result- 
 ing in the death of his helper, defendant is sued. The 
 court said: 
 
 " It will be observed that the statute refers to the 
 individual whom the employer has intrusted with and 
 whose sole and (sic) principal duty is that of exercising 
 superintendence. Were such the duties of Wilson? He 
 was employed by the defendant as a steam-fitter or 
 plumber and had been occupied as such during the entire 
 time that he had been in the defendant's service. As 
 he testified, he had no power to hire or discharge his 
 helper, but that McConnell was employed by the de- 
 fendant and was directed to serve as Wilson's helper. 
 It thus appears that they were laborers engaged to- 
 gether doing the same class of work. Wilson, as the 
 mechanic fitting or repairing pipes, and McConnell 
 assisting him in the work. While it is true that it was 
 McConnell's duty to obey Wilson's directions with refer- 
 ence to handing him tools and waiting upon him in 
 various ways which were necessary in the conduct of 
 the work, we are clearly of the opinion that the relation 
 between them was merely that of co-employees and that 
 Wilson did not occupy the position of and had never 
 been intrusted with the powers of superintendent 
 within the meaning of the statute to which we have 
 referred. Wilson was employed as a steam-fitter or 
 plumber; his duties pertained to that class of work. 
 McConnell was emploverl to heln and assist him, nothing 
 
Insufficient. Proof of Superintendence. 79- 
 
 more. The case, therefore, is brought within the rule- 
 so often recognized and applied in this court, to the- 
 effect that where the master has upon hand at the place 
 where the work is performed sufScient suitable material 
 or appliances for the doing of the work, he is not liable 
 for injuries resulting to a workman by reason of an error 
 in judgment of the foreman or of a co-employee in 
 selecting defective material or appliance. {Vogel v. 
 Am. Bridge Co., 180 N. Y. 373; Kimmer v. Webber,. 
 151 N. Y. 417, and cases cited.)" 
 
 In Abrahamson v. General 8upply & Construction 
 Co. (112 App. Div. 318), the person charged with negli- 
 gence, as an alleged superintendent, was the leader of 
 a gang of six men not selected by the employer or en- 
 trusted by the employer with superintendence, but 
 chosen " by a process of natural selection from the gang 
 itself " and known in the business as a " pusher." He 
 was engaged in manual labor the same as the others. 
 He was not a superintendent of construction and had 
 no voice in determining anything in relation to the 
 general work, but was simply pointed out as the leader 
 of the gang for the purpose of securing greater efficiency 
 in the detail of the work assigned to the particular 
 gang. His position differed from that of the other em- 
 ployees in that he had received a slight advance in pay 
 and it was his business to keep things moving. There 
 was also evidence that the work from which the accident 
 arose was being done under the superintendence of 
 another person who was actually present and in charge 
 of the work at the time of the accident. The court held 
 that the pusher was not a superintendent within the 
 meaning of the act. 
 
 In Hughes v. Russell, 104 App. Div. 144, the person 
 charged with negligence was described as a foreman.. 
 
80 The New Yoek Employers' Liability Act. 
 
 There was no other proof that he was a superintendent 
 ■except the inference to be drawn from the name applied 
 to him. The court held that this was insufficient in 
 view of the fact that the foreman's own testimony 
 showed that he was a stamper engaged in employment 
 on a machine near the place of the accident, and that 
 there was another superintendent absent from the fac- 
 tory at the time, and that there was no proof that in 
 his absence his functions had devolved upon this fore- 
 man. 
 
 In McLaughlin v. Interurban Street Railway Co., 101 
 App. Div. 134, 91 Supp. 83, the person charged with 
 negligence was an ordinary conductor on a street car 
 who had directed another employee of the railroad who 
 was riding on the car, to stand on the front platform, 
 where he was thrown off by a violent jerk of the car. 
 The court held that this conductor was not a superin- 
 tendent, saying: 
 
 " It is true that in a general sense the duties both of 
 a car conductor and a car driver require the exercise of 
 superintendence to the extent that intelligent watch- 
 fulness is essential to the careful performance of their 
 work, but the superintendence referred to in the statute 
 is something more than this, and is intended to relate 
 io that class of servants who are generally known as 
 superintendents, and whose sole or principal duty is to 
 oversee the work of others." 
 
 In Quinlart v. Lackawanna Steel Co., 107 App. Div. 
 176, the person charged with negligence was one Knapp, 
 who, among other duties, had charge of the operation of 
 a crane in defendant's employ. The testimony with 
 reference to Knapp's position was to the effect that 
 plaintiff obeyed his instructions in operating the crane ; 
 that there was a general superintendent whom plaintiff • 
 
Insufficient Peoof of Superintendence. 81 
 
 never saw give any orders to any of the men connected 
 with the gang on which he was at work, but that this 
 general superintendent gave his instructions to Knapp 
 and Knapp gave the orders to the men, and Knapp 
 directed plain tiiSf's movements on the day in question. 
 Knapp occupied a position on the floor and when 
 the crane was ready for operation, he gave the 
 signal to plaintiff. The court held that Knapp was not 
 a superintendent within the meaning of the act. The 
 decision is an extremely doubtful one and was rendered 
 by a divided court, two justices writing a dissenting 
 opinion. The court says : 
 
 " It would seem that the position of Knapp was that 
 of a foreman or man employed to give directions for 
 the efficient carrying out of the orders of the superin- 
 tendent, Greenough. It is not simply the power to 
 instruct or even to direct in a particular manner that 
 constitutes superintendence within the meaning of the 
 law, but it must be such a supervision and charge as 
 gives power of direction, and it must be with authority 
 to direct the manner and means of prosecuting the work 
 in charge. It is not sufficient to show that a man 
 directed another as to the time when it was necessary to 
 operate a crane or that he even directed a number of 
 men with reference to the unimportant details of their 
 work; but the proof should be further, it should show 
 that the man was vested with some power of discretion 
 to exercise authority beyond the narrow limits of one 
 acting under a special direction." 
 
 This decision if followed robs the Liability Act of the 
 greater part of its remedial effect So far as it finds 
 as a matter of law that this man Knapp was not a super- 
 intendent, it does so in the face of facts which clearly 
 point in the other direction. Knapp had charge of forty 
 6 
 
82 The New York Employers' Liability Act. 
 
 or fifty men. The testimony fails to show that he did 
 anything else but direct them. He was the only person 
 from whom plaintiff had ever received orders. If he was 
 not a person " entrusted with and exercising superin- 
 tendence" the nature of his occupation would indeed 
 be hard to define. The limitation upon the meaning of 
 superintendence which the court endeavors to read into 
 the act in the quotation just cited is justified neither 
 by the wording of the act itself nor constructions con- 
 tained in any decisions in either our own State or in 
 other States in which similar acts exist. (See section 
 26, supra.) It is undoubtedly true that a man is not 
 a superintendent whose occupation is to repeat slavishly 
 the directions given through him by some one else, 
 using no discretion himself, but simply affording the 
 vocal channel for another's thoughts. But where, 
 though subject to the directions of a superior from 
 whom he receives his own general instructions, he is 
 engaged as his sole occupation in the work of directing 
 forty or fifty men, even " with reference to unimportant 
 details of their work," then he is a person " entrusted 
 with and exercising superintendence" whose sole or 
 principal duty is that of superintendence within the 
 meaning of the act The act does not require that such 
 a superintendent ( in order to retain an identity as such 
 in law which he clearly has in fact) should have broad 
 powers or that his delegated authority should cover 
 what the court construes " important matters," and it 
 does not say that an injured employee who has been 
 hurt by the negligence of such a person has the burden 
 of proof to show that the superintendent " was vested 
 with some power of discretion to exercise authority 
 beyond the narrow limits of one acting under a special 
 direction." 
 
Insufficient Proof of Scpekintendenoe. 82^ 
 
 In Adasken v. Gilbert, 165 Mtiss. 443, it was hel^ 
 that a workman who was employed on a job as a 
 common painter, receiving the same pay as his twq 
 fellow servants and doing the same work, is not one 
 entrusted with and exercising superintendence, not; 
 withstanding the fact that the injury complained of 
 results from the negligent direction given by him. In 
 O'Brien, V. Hideout, 161 Mass. 170, the proof showed 
 that the foreman whose negligence was claimed to have 
 caused the injury was kept at work mainly in getting 
 out lumber, piling it up, arranging it and operating 
 saws in defendant's mill. It was held there was in- 
 sufficient evidence to justify a finding that he was prin- 
 cipally engaged in superintendence though the injury 
 resulted from an act of superintendence. In O'Neil v. 
 O'Leary, 164 Mass. 387, the evidence showed that a 
 person employed as superintendent of the blasting of a 
 ledge of rock, worked with his own hands in attending 
 to the fire under the steam boilers and in sharpening 
 tools, in charging the drill holfes and cleaning them out, 
 and other acts of manual labor which occupied most of 
 his time. The court says : " The words ' sole or prin- 
 cipal duty of superintendence ' must have a reasonable 
 interpretation given to them, and a majority of the 
 court is of the opinion that it could not be said of a 
 person who works at manual labor to the extent shown 
 in this case that his principal duty is that of superin- 
 tendence." 
 
 In Oashman v. Chase, 156 Mass. 342, the person whose 
 superintendence was in question was an engineer in 
 charge of a steam engine used for raising and lowering 
 a fall on a lighter between a vessel and the wharf. 
 The engineer employed the men in the first instance 
 and set them to work. He went into the hold of the 
 
84 The New Yoek Employers' Liability Act. 
 
 Vessel on several occasions and showed them how to 
 Adjust the rope around bundles of lathes which were 
 being taken out of the hold; he discharged and em- 
 ployed men. The engineer did no manual labor except 
 the running of the engine. The court says : " Upon 
 the facts it might be competent to find that the engineer 
 was to some extent a superintendent. The employment 
 and discharge of the workmen, setting them at work 
 and showing them how to do the work are acts con- 
 sistent with superintendence, but these acts, in con- 
 nection with the evidence that his station was on the 
 lighter and his work there the continuous labor of run- 
 ning the engine in accordance with orders transmitted 
 him from others, show that neither his sole or principal 
 duty was that of superintendence." In Dowd v. B. d A. 
 R. R. Co., 162 Mass. 185, the person whose negligence 
 occasioned the injury, and who was claimed to have 
 been acting as superintendent at the time, worked with 
 his hands and drew the same wages as the plaintiff and 
 other workmen. He gave directions in the absence of 
 the general superintendent. A verdict was directed 
 for the defendant as the evidence did not justify the 
 finding that his sole or principal duty was that of 
 superintendence. In Roseback v. Aetna Mills, 158 Mass. 
 379, it was held that an ordinary weaver, whose usual 
 work is that of an operator of a loom, is not a person 
 entrusted with and exercising superintendence merely 
 because it was also his duty when his loom got out of 
 order to notify the loom fixer to repair it. 
 
 Sec. 32. The negligent act must be an act of superin- 
 tendence. 
 "Liability for negligence in superintending is what is 
 created by the statute and not for the negligent act of the 
 
Negligent Act Must be One op Supekintendbnce. 85, 
 
 superintendent in no manner connected with his dutie$ 
 as such." {Bannon v. N. Y. Central, etc., By. Co., Il2 
 A. D. 552, 98 Sup. 770, citing Quinlan v. Lackawanna^ 
 Steel Co., 67 A. D. 176, 94 Sup. 942. In Cashman v! 
 Chase, 156 Mass. 342, the following rule is laid down for 
 determining whether or not the act is one of superin- 
 tendence : " Unless the act itself is one of direction 
 or other oversight tending to control others and to vary 
 their situations or actions because of his direction, it 
 cannot fairly be said to be one in the doing of which the 
 person entrusted with superintendence is in the exercise 
 of superintendence. For the negligence of such a per- 
 son in doing the mere act of an ordinary workman in 
 which there is no exercise of superintendence the em- 
 ployer is not made responsible by the statute." 
 
 The statute uses the words " by reason of the negli- 
 gence of any person in the service of the employer 
 entrusted with and exercising superintendence. It is 
 well settled on authority that no recovery can be had 
 for negligent acts of persons, whose general duties are 
 those of superintendence, unless the act itself be ail 
 act of superintendence and a negligent act as well. 
 
 " To hold a master or employer liable under this pro- 
 vision, the negligence must be that of some agent or 
 employee who is in the exercise of superintendence, and 
 to whose negligence as such superintendent the disaster" 
 is traced." {City Council of Sheffield v. Harris, 101 
 Ala. 564, 569 and 570.) In Shaffers v. Oen. S. N. Cot, 
 10 Q. B. D. 356, the action was brought to recover for 
 the alleged negligence of a person having superintend- 
 ence entrusted whilst in the exercise of superintend- 
 ence. The plaintiff was stowing sacks of corn in the 
 hold of a ship, the sacks being lowered by a steam 
 crank. A guy rope was attached to the crane of the 
 
86 The New Yoek Employees' Liability Act. 
 
 derrick to control the movements of the crane, and this 
 rope was in the charge of a gangway man, whose duty 
 it was to stand at the hatchway and call out to the 
 men when the crane of the derrick had swung around so 
 that the sacks of corn were ready to be dropped in the 
 hold, and he further had authority to direct the derrick 
 by means of the guy rope, and to direct the man who 
 was working the crane when to raise and when to lower. 
 The actual negligence which occasioned plaintiff's in- 
 jury was a neglect in failing to use the guy rope to check 
 the swinging of the derrick. 
 
 The court of Queen's Bench held that even assuming 
 that this gangway man was a superintendent, within the 
 meaning of the section, that a negligent failure to use 
 the guy rope was not a negligent act done in the exercise 
 of superintendence, but that the accident arose from the 
 negligence in the capacity of workman. Compare with 
 Carlson v. United Engineering & Contracting Co., 113 
 A. D. 37, 98 Sup. 1036, in which a direction to start a 
 stationary engine under other circumstances was held 
 " not like unto a direction for that purpose given in the 
 course of its ordinary intermittent working, a mere de- 
 tail of the work, but rather a direction in the course of 
 his superintendence of its adjustment and repair." In 
 Joseph V. George G. Whitney Co., 177 Mass. 176, plain- 
 tiff was injured by the negligence of defendant's super- 
 intendent. The plaintiff had his hand between the jaws 
 of an embossing machine, the power being turned off. 
 Another workman had called to the superintendent for 
 instruction, and the superintendent came and leaned 
 over between plaintiff's machine and that of the other 
 workman, with his back to plaintiff's machine, and acci- 
 dentally touched it so as to start it up. The jaws closed 
 and cut off the greater portion of the plaintiff's hand. 
 
Negligent Act Must be One of Superintendence, 87, 
 
 • 
 
 The court held that the negligence was not done in the 
 exercise of superintendence. 
 
 " The precise place in which Meyer (the superintend- 
 ent) should be while giving his directions, the way in 
 which he should stand and sit, his care in managing 
 his body in the place he selected, were too much the 
 accident of his independent personality, and too remote 
 from the act of giving the orders for us to charge the 
 defendant with the consequences of his neglect in that 
 regard. 
 
 " The matter may be stated in a different form. If 
 the motion of Meyer which caused the injury may be 
 regarded as a part of the act of superintendence, the 
 fact that he was superintendent was in no way a neces^ 
 sary element in producing the injury, but we are of the 
 opinion that by a true construction of the statute, the 
 superintendence mitst contribute as such, and that 
 when, as here, it had nothing to do with the injury, quM 
 superintendent, the case is not within the act." 
 
 " The employer is not answerable for the negligence 
 of a person entrusted with superintendence, who, at the 
 time, and in doing the act complained of, is not exer^- 
 cising superintendence, but is engaged in manual 
 labor — the duty of a common workman. The law 
 recognizes that a common workman may have two 
 duties — that be may be a superintendent for some pur- 
 poses, and also an ordinary workman, and that, if neg- 
 ligent in the latter capacity, the employer is not 
 answerable." {Gashman v. Chase, supra.) Oth^r 
 cases holding that the negligent act must in itself be an 
 act of superintendence are given below.* , 
 
 8. Joseph V. Oeorge C, Whitney Voreross, 155 Mass. 584; Fitsiger- 
 Co., 177 Mass. 176; Malcolm v. aid v. B. d A. B. R. Co., 186 
 Fuller, 162 Mass. 160 ; McOauley v. Mass. 293 ; Oreen v. Smith, 169 
 
88 The New York Employees' Liability Act. 
 
 A test is suggested in Ahrahamson v. General Suppli/ 
 & Construction Co., 112 App. Div. 318, for determining 
 whetlier a given act was one of superintendence or of 
 manual labor. The court says, citing McHugh v. Man- 
 hattan Ry. Co., 179 N. Y. 378 : " ' There are many acts,' 
 says the court in McHugh v. Manhattan By. Co., ' the 
 nature of which is such as to clearly establish their 
 character, whether of ordinary labor or of superintend- 
 ence, and this regardless of whether the act may be 
 done on a particular occasion by a superintendent or 
 by an ordinary workman,' and this we take is the real 
 test to be applied, whether the occasion is one demand- 
 ing superintendence, and whether the master has au- 
 thorized any one to assume that relation to the work." 
 
 It is doubtful whether there is anything in the act 
 which justifies the italicized portion of this test. The 
 court says further in this opinion : " if the work is such 
 that the master owed no duty of furnishing a superin- 
 tendent as a part of the corps of competent fellow- 
 servants " there is no liability. This seems also unwar- 
 ranted. The test which the act itself suggests is whether 
 or not the master has in fact supplied a superintendent, 
 not whether the occasion demands one. 
 
 Sec. 33. Negligent .acts of superintendence. 
 
 1. Superintendence and manual labor. — As the 
 Court of Appeals has observed in McHugh v. Manhat- 
 tan By. Co., 179 N. Y. 378 : " There are many acts the 
 nature of which is such as to clearly establish their 
 character whether of ordinary labor or of superintend- 
 ence, and this regardless of whether the act may be 
 
 Mass. 485; Douin v. Wampanoag ham, v. Lynn Str. Ry. Co., 170 
 
 Mills, 172 Mass. 221; Fleming v. Mass. 298; Dantzler v. Bardelehen 
 
 Elston, 171 Mass. 187; O'Brien v. Coal Co., 101 Ala. 309; Kellard v. 
 
 Look, 171 Mass. 36; O'Keefe v. Rooke, 19 Q. B. D. 585; Oshorne 
 
 Brownell, 156 Mass. 133; Cunning- v. Jackson, 11 Q. B. D. 619. 
 
Negligent Acts of Sxjpeeintbndence. 89' 
 
 done on a particular occasion by a superintendent or by 
 an ordinary workman. On the other hand there are 
 many acts which are indeterminate in their character 
 and whether they are to be deemed acts of superintend- 
 ence or not may depend on the manner in which the 
 business is conducted, and the rank and position of the 
 employee to whom the performance of these acts is en- 
 trusted." For mere acts of manual labor done in the 
 course of the work, unconnected with any act or exer- 
 cise of superintendence, the employer is not liable, 
 though done by a superintendent. (See sfec. 32.) Much 
 difficulty is found in determining what acts are merely 
 manual labor and what are acts of superintendence,, 
 and there are many border-line cases. This is particu- 
 larly true in cases where the negligent act of superin- 
 tendence is closely connected in point of time with an 
 act of manual labor. " When one person acts both as a 
 common laborer and a boss, and is expected to work 
 with and as other workmen, even his words of com- 
 mand are not necessarily acts of superintendence." 
 {Hoffman v. Holt, 186 Mass. 572; WMttalcerv. Bent,. 
 167 Mass. 588. Where, however, an act of manual 
 labor by the superintendent is performed as a part of 
 an act of superintendence, as an exercise of the judg- 
 ment of the superintendent and an expression of his 
 decision as to how or when the work shall be done, the 
 rule is clearer. In Meagher v. Crawford Laundry 
 Company (185 Mass. 586), employees, including 
 plaintiff, were moving a heavy bar of iron over a 
 rough floor, using a truck which was too small, with 
 wheels only at one end, although there was a four- 
 wheel truck in the building suitable for use in moving 
 the bar. After the truck had become stuck in the floor 
 the superintendent took charge and instead of sending 
 
90 The New York Employees' Liability Act. 
 
 for the four-wheel truck, tried to lift one of the wheels 
 of the truck himself, and. in so doing made the bar 
 lurch so as to hurt the plaintiff. The court says : " It 
 is strongly urged by defendant that the act of the super- 
 intendent in raising the wheel was one of manual labor 
 and not of superintendence, and that as it contributed 
 to the injury there can be no recovery. But at the 
 time he was actively engaged in forwarding the work. 
 The plaintiff and his fellow servants were under his 
 immediate supervision. He was not engaged in work 
 with the men in a common task of manual labor. When 
 ■he had decided to make no change, hut to proceed, his 
 use of the lever was not an independent act of work 
 with his hands, hut was part of the plan or one of the 
 conditions of his superintendence, and the moment of 
 time taken for its performance cannot he signaled out 
 for the purpose of saying that he was at that instant a 
 common lahorer, although immediately hefore and after 
 he was clothed with the authority of his superior posi- 
 tion." (Citing O'Brien v. Look, 171 Mass. 36; Joseph 
 V. George G. Whitney Co., Ill Mass. 176; Roche v. 
 Lowell Bleachery, 181 Mass. 480. In McBride v. 
 New York Tunnel Gompany, 101 App. Div. 448, 92 
 Supp. 282, affirmed in Court of Appeals without 
 opinion, 187 N. Y. 59, the negligent act was 
 the turning on of an electric current. It was 
 ■claimed to have been turned on by a superintendent. 
 Plaintiff's intestate was engaged as a driller and in 
 blasting for defendant. The method used was to drill 
 holes, insert explosives and connect them with electric 
 wires. When connected the men were directed to pass* 
 out to a place of safety and it was intestate's duty to 
 apply the electric current which exploded the blast. 
 The superintendent, after having been informed that 
 
"Negligent Acts of Superintendence. 91 
 
 four men were still in the heading near the blast, and 
 after having himself hastily looked for these men with- 
 out seeing them, passed himself to the switchboard and 
 turned on the switch, setting off the blast. The act so 
 done was not a part of the usual duty of the superin- 
 tendent, but was the duty of the deceased, and the court 
 below had held that the setting off of the blast in this 
 manner was not an act of superintendence, and that 
 for such reason the case was not within the act. This 
 was reversed on appeal. The Appellate Division says : 
 " Martin had charge of the prosecution of the work, the 
 preparation and firing of the blast and the removal of 
 the men to a place of safety. In the discharge of these 
 duties he was acting as superintendent and within the 
 terms of the act liability is imposed on the master for 
 his neglect." 
 
 In McHugh v. Manhattan Railway Co. (179 N. Y. 
 378), cited in the McBride case, an employee of defend- 
 ant, whose business it was to couple the engine to a 
 train where the same was made up, was killed by the 
 starting of the train by the direction of a train 
 dispatcher while he was engaged in making a coupling. 
 The decision of the case turned upon whether the start- 
 ing of the train was an act of superintendence or a 
 mere detail of the work. One Flanagan had been sub- 
 stituted to perform the duties of the regular train 
 ■dispatcher at the time the accident occurred. The 
 Court of Appeals says : " In the present case, under the 
 defendant's rules already quoted, and the ordinary con- 
 duct of its business, the making up of trains and their 
 dispatch from the yard were functions imposed on the 
 superintendent or train dispatcher as a part of his duty 
 as such. Both were duties or functions of superintend- 
 ence. The failure of Flanagan, if there were such, was 
 
92 The New York Employers' Liability Act. 
 
 in his failure to properly supervise the preparation of 
 the train, and in failing to ascertain that the engine 
 had been connected with the cars and that the employee 
 engaged in that labor had withdrawn to a place of 
 safety." 
 
 A case in conflict with McBride v. New York Tunnel 
 Company, supra, which was decided in the First Depart- 
 ment, is Quinlan v. Lackatvanna Steel Company (107 
 App. Div. 176, 94 Sup. 942), decided in the Fourth De- 
 partment. The negligent act in question in this case was 
 in turning on an electric current, which is claimed ta 
 have been done by a superintendent, one Knapp. The 
 court says : " In this case the evidence does not show 
 that Knapp turned on the current, yet assuming that 
 the evidence would warrant a deduction that the cur- 
 rent was turned on by Knapp, it was clearly not an act 
 of superintendence at that time. ... In the case 
 under consideration, under the evidence it was Knapp's 
 duty to maintain his position on the floor. He was 
 called by plaintiff the floor boss, and directed the plain- 
 tiff when to operate the crane. If he exceeded his duty 
 in that regard and negligently turned on the current, 
 it was not an act of superintendence but an act of in- 
 terference for which the master was not liable." 
 
 The testimony clearly shows that Knapp was a 
 superintendent within the meaning of the act, though 
 the court held that he was not a superintendent. The 
 real question in the case, however, was whether or not 
 the act of turning on the current, if done by this super- 
 intendent, was an act of superintendence or one of 
 manual labor. The decision that it was not an act of 
 superintendence is reached by a majority of the court, 
 but with two dissenting opinions. The prevailing opin- 
 ion sousrht to sustain its flndinjis on the authoritv of 
 
Negligent Acts of Superintendence. 93 
 
 Caahman v. Chase (156 Mass. 342), and the dissenting 
 judges cited in support of their dissent Roche v. Lowell 
 Bleachery Co. (181 Mass. 480). The reasoning by 
 which the court reaches its conclusion very seriously 
 limits the act in its scope and substantially nullifies 
 the superintendence clause. The dissenting opinions 
 are in accord with the Massachusetts cases. 
 
 A very recent case in Massachusetts, for example, 
 supports the reasoning of McBride v. New York Tunnel 
 Company (101 App. Div. 448, 92 Supp. 282, supra), 
 and indicates the line of distinction between manual 
 labor and superintendence not recognized in the Quin- 
 lan case and which is to be followed in construing the 
 superintendence clause of the act. In this case {Mc- 
 Phee against New England Structural Company, 188 
 Mass. 141), a person in charge of a gang (who also 
 took part in working and in the running of an engine 
 used in hoisting), negligently started the engine after 
 sending workmen upon a truss and before they had 
 cleared it from the wall of a brick building against 
 which it was jammed. The machinery was started 
 before the truss was clear of the building and a 
 rope broke causing the death of plaintiff's intes- 
 tate. The court held that the superintendent's act in 
 deciding to start the engine might be found to be an act 
 of superintendence, although he used manual labor in 
 setting it in motion. The court says : " The negligence, 
 if there was negligence, in starting the engine consisted 
 in causing the engine to he started at all under the cir- 
 cumstances then existing, namely, when the truss was 
 jammed against the wall and when something had to 
 give way if the engine was set in motion then. This is 
 not a case when it was proper to start the engine and 
 there was negligence in the way in which the starting 
 
94 The New York Employees' Liability Act. 
 
 of the engine was carried in effect. In the former case 
 the decision that the engine was to be started is an act 
 of superintendence and is not the less so because the 
 manual work of setting the engine in motion is done by 
 the superintendent. The cases of O'Brien v. Look (171 
 Mass. 30) ; Roche v. Lowell Bleachery Co. (181 Mass. 
 480) ; Meagher v. Crawford Laundry Co. (187 Mass. 
 580), are cases applying to this class. In the latter 
 case the act of negligence is the way the engine is set 
 in motion, it being proper to set it in motion at the 
 time. That is not an act of superintendence, but is an 
 act of a fellow servant, and for that the employer is not 
 liable at common law or under the Liability Act. The 
 cases of C ashman v. Chase (156 Mass. 342) ; Riou v. 
 Rockport Granite Co. (171 Mass. 162) ; Flynn v. Bos- 
 ton Electric Light Co. (171 Mass. 395) ; Joseph v. 
 Whitney Co. (177 Mass. 176) ; Hoffman v. Holt (186 
 Mass. 572), are in this class. It is said in Whittaker v. 
 Bent (167 Mass. 588), that when the superintendent in 
 that case said ' go ahead,' these words were said in the 
 course of his work as a fellow servant, not as a direc- 
 tion given by him as a superintendent, and for that 
 reason that case comes within this class." See, also, 
 Britton v. West End Street R. R. Co. (1G8 Mass. 10). 
 This distinction would apparently require a different 
 conclusion from that reached by the Fourth Depart- 
 ment, Appellate Division, both in Quinlan v. Lacka- 
 wanna Steel Co. (107 App. Div. 176), and Ouilmartin 
 V. Snlvay Process Go. (101 Supp. 122). It should be 
 noted, however, in considering these Massachusetts 
 cases, that the Court of Appeals has said in McHugh v. 
 Manhattan Ry. Co. (179 N. Y. 378) : "There may not 
 be entire harmony between the various Massachusetts 
 decisions that have arisen under this legislation. Pos- 
 
Negligent Acts of Superintendence. 95- 
 
 sibly they give more weight to the consideration of the 
 general character of the foreman's or superintendent's, 
 duties and less to the character of the particular act in 
 which the misconduct occurs than we would be dis- 
 posed to accord to these factors." 
 
 Another test for determining whether a given act 
 done by a superintendent is an act of superintendence- 
 or of manual labor is suggested in Osborne v. JacJcson,. 
 11 Q. B. D. 619. In that case plaintiff, who was a 
 bricklayer in defendant's employ, was at work near a. 
 shoring where scaffolding was being taken down by^ 
 other workmen. Defendant's foreman personally 
 handed a plank in this scaffolding to another workman 
 and called to him to take it. The laborer took the end 
 of it, but was so far off that he could not hold the 
 plank, and the foreman letting go of his end of the 
 plank, it slipped and knocked down the shoring, which 
 fell upon and injured plaintiff. It seems extremely- 
 doubtful as to whether this foreman was not engaged 
 in an act of manual labor rather than of superintend- 
 ence, but the court held that in directing the laborer to- 
 take the plank when he could not do so safely, the fore- 
 man thrust upon him a duty which he could not safely 
 perform. (Compare with Flet v. Hunter Arms Co., 74 
 App. Div. 572, 77 Supp. 752.) The court says: "If 
 Thomas (the foreman) had directed another to do 
 what he did himself, he would surely have been negli- 
 gent in the exercise of superintendence." In Malcolm 
 V. Fuller, 152 Mass. 160, the facts shown were the^e: 
 A quarryman in general charge of a quarry, flnding^ 
 that wadding still remained in a hole which he assisted 
 in drilling and loading with powder and had attempted 
 to discharge, negligently assumed that the charge had 
 exploded and passed off through another hole by a con- 
 
96 The New Yoek Employees' Liability Act. 
 
 necting crevice in the rock, and deciding to drill out 
 the wadding, directed a fellow servant to hold the drill 
 while he did the striking, whereupon the charge ex- 
 ploded, injuring the workman. The defendant insisted 
 that, assuming that the foreman was a general superin- 
 tendent, that, notwithstanding, in the act that caused 
 the plaintiff's injury, he was acting as a servant and 
 was not exercising superintendence. " The evidence 
 shows that Stewart (the foreman) had been engaged 
 in manual labor in drilling the holes for blasting, and 
 that his act in striking the drill, held by the plaintiff, 
 was the immediate occasion of the explosion which 
 caused the injury; that the plaintiff does not rely upon 
 any evidence of negligence of Stewart in the manner of 
 drilling the holes or of striking the drill. The negli- 
 gence which the evidence tended to prove is the manner 
 of clearing out the hole in which the tamping remained 
 after the discharge. If Stewart was superintendent, he 
 was exercising superintendence in determining the 
 manner in which the hole should be cleared out and in 
 directing the plaintiff to assist, and himself assisting 
 in drilling it out. In that respect it is immaterial 
 whether he himself struck the drill or ordered another 
 person to do it." 
 
 In Carlson v. United Engineering & Contracting Co., 
 113 App. Div. 371, 98 Sup. 1036, defendant used a 
 stationary engine for hoisting in construction work. 
 The engine was stopped for adjustment of a wire 
 rope running over the drums. The plaintiff, when 
 engaged in that work, placed his foot in a place 
 dangerous if the machinery were moving. The 
 superintendent gave the order to start the engine 
 without warning and before he saw that the plaintiff 
 was in a place of safety. " The direction to start the 
 
Negligent Acts of Supeeintbndenob. 97 
 
 engine after the stop of two hours for the repairs and 
 adjustment under his charge was not like unto a direc- 
 tion for that purpose given in the course of its ordinary 
 intermittent working, a mere detail of the work, but 
 rather a direction in the course of his superintendence 
 of its adjustment and repairs. It was his duty in the 
 course of such superintendence before he directed that 
 the engine should be started to exercise reasonable care 
 to see that the workmen engaged in the labor of repair 
 or adjustment were in places of safety." Citing Mc- 
 Bride v. N. Y. Tunnel Co., 101 A. D. 448; 92 Sup. 282; 
 McHugh V. Manhattan By. Co., 179 N. Y. 378. 
 
 In Roche v. Lowell Bleachery, 181 Mass. 480, 
 plaintiff was a workman in defendant's bleachery, 
 and sued for injuries received while tightening 
 certain cylinders, called binders, connected with a 
 washing machine operated by the plaintiff, the injuries 
 being occasioned by reason of the negligence of one 
 Royer, the defendant's superintendent, in starting 
 plaintiff's machine. In order to tighten the machine 
 plaintiff had to stop it and go up to another floor, out 
 of sight of it. At the time of the accident the binders 
 had become loose and the plaintiff was tightening them, 
 having first stopped his machine, when the .super- 
 intendent came along and personally set the machine 
 running, by reason of which the plaintiff was caught in 
 the shafting above. The court held that a recovery by 
 the plaintiff was proper on the theory that it was an 
 act of superintendence which caused the injury. 
 
 In Qreenstein v. Chicle, 187 Mass. 157, the superin- 
 tendent, one Pratt, told the plaintiff that he would go to 
 the enginee room and have the power turned off so that 
 a belt could be removed, and told the plaintiff to then 
 go on a platform and unwind the belt. A few minutes 
 7 
 
98 The New Yokk Employers' Liability Act. 
 
 later the machinery stopped and as the workman began 
 to unwind the belt the machinery started, causing the 
 injury. The court said : " The accident was of a kind 
 easily preventable by the exercise of due care and su- 
 perintendence on the part of Pratt. He had put plain- 
 tiff in a dangerous place to work, if the power started, 
 and it was his duty to look after and see that the 
 machinery did not start. Citing Scullane v. Kellogg, 
 169 Mass. 544; Davis v. N. Y., N. E. & H. Ry. Co., 159 
 Mass. 532; O'Brien v. West End St. By. Co., 173 Mass. 
 105. 
 
 2. Failure to direct or warn. — It is not negligent in 
 the superintendent not to anticipate that an experienced 
 servant will fail to use ordinary precautions where, if 
 such precautions are taken, there is no danger. [Buston 
 V. Harvard Brewing Co., 183 Mass. 438.) In Faith v. 
 New York Central d H. R. R. R. Co., 109 App. Div. 
 222, 95 Sup. 774, affirmed, no opinion, 185 N. Y. 556, 
 plaintiff's intestate was killed while working under 
 one Norris, a foreman, who gave instructions in a repair 
 shop of defendant. Deceased was killed while repairing 
 a locomotive; the foreman stood by directing the work 
 and allowed all the bolts of a locomotive boiler to be 
 cut away so that the boiler fell upon deceased, a work- 
 man, who was trying to attach the tackle for which he 
 had been sent during the cutting of the bolts. Norris 
 was superintendent in the absence of the general super- 
 intendent, and this was held to be a negligent failure to 
 warn deceased, for which defendant was liable. In 
 Davis v. N. Y. & H. R. R. Co., 159 Mass. 532, the plain- 
 tiff was injured by reason of his foreman failing to 
 give warning of the approach of a train. Plaintiff was 
 employed by the railroad company as one of a gang of 
 workmen engaged in repairing the track. The nature 
 
Failure to Direct or Warn. 99 
 
 of his work required him to bend over with his back in 
 the opposite direction from that in which the train was 
 coming. The court held that this employee had the 
 right to rely upon the fact that it was the duty of the 
 foreman of the gang to warn him of the approach of 
 the train, and if, by reason of the foreman's neglect to 
 give him such warning, he was struck by the train and 
 injured, he could maintain an action against the cor- 
 poration for his injury, alleging that the foreman, being 
 the person entrusted with and exercising superintend- 
 ence, negligently failed to give notice of the train's ap- 
 proach. (Compare with New York common law rule 
 in McCosker v. Long Island R. Co., 84 N. Y. 77.) 
 
 In McCoy v. Inhabitants of Westhury, 172 Mass. 504, 
 plaintiff was injured whilst engaged in digging a sewer 
 trench by reason of the bank, upon which defendant's 
 superintendent was standing, and at a place where 
 there was a crack in the earth, falling upon him. 
 The superintendent, who had general control of 
 the whole work of digging the trench, walked 
 along the bank and stopped to look down at the 
 workmen. On these facts the jury was justified in 
 holding that the superintendent was exercising over- 
 sight of the work, and, therefore, engaged in an act of 
 superintendence ; the jury was also entitled to consider 
 whether or not it was negligent for the superintendent 
 to stand where he did without giving any warning to 
 the plaintiff. ( See, also. Cole v. Lawrence Mfg. Co., 178 
 Mass. 295.) 
 
 In Jarvis v. Goes' Wrench Co., 177 Mass. 170, plain- 
 tiff was a boy fifteen years of age who was injured while 
 sawing blocks with a circular saw. He had been doing 
 this work for two or three days, but on the morning 
 of the accident a block of wood, which he was sawing, 
 
100 The New Yoek Employees' Liability Act. 
 
 bounded back and his left hand went under the saw. 
 He had received no warning when put to work upon 
 the saw that wood was likely to bound back in this 
 fashion. The danger was one well known to the de- 
 fendant but not obvious to an inexperienced workman, 
 and the court held that the jury was justified in find- 
 ing it negligence for defendant's superintendent to set 
 the plaintiff at work without instruction on this point. 
 (See, also, Wheeler v. Wason Mfg. Co., 135 Mass. 294, 
 to the same effect.) 
 
 In Grimaldi v. Lane, 177 Mass. 565, plaintiff was a 
 workman in defendant's quarry, his employment con- 
 sisting of breaking stone. He had nothing to do with 
 the blasting and knew little about it. Plaintiff dis- 
 covered a blasting hole loaded with dynamite cartridges 
 which had failed to explode and informed defendant's 
 superintendent, who, thereupon, ordered a workman to 
 unload the hole, which the workman attempted to do 
 by using an iron scraper, which was a dangerous in- 
 strument to use for that purpose. The superintendent 
 stayed at the hole to watch the scraper for some 
 minutes, and then left without warning the plaintiff, 
 who was working near by, to move away. An explosion 
 followed, caused by the use of the scraper, and plaintiff 
 was injured. The court held that there was sufficient 
 evidence of negligence on the part of the superintendent, 
 and that plaintiff could not be held guilty of contribu- 
 tory negligence as the risk of an explosion, under the 
 circumstances of the case, was not obvious to a man 
 whose experience in dynamite was no more extensive 
 than plaintiff's was shown to have been. 
 
 3. Negligent directions or omissions. — When the di- 
 rection given by the superintendent is in itself safe 
 and proper, the employer is not liable if the employee 
 
Failure to Direct or Warn. 
 
 injured uses an unsafe method of carrying out the order. 
 {Kennedy v. Merrimack Paving Co., 185 Mass. 442.) 
 
 In Bellegarde v. Unions Bag & .Paper Co., 90 App. Div. 
 577, 86 Sup. 72, plaintiff was employed under a super- 
 intendent in the erection of a building. For the purpose 
 of hoisting timber the superintendent erected on the floor 
 of the upper story a "shear derrick." At the time of its 
 erection the superintendent's attention was called to the 
 fact that a guy rope at the front was necessary, but he 
 declined to support the derrick in that way. As the first 
 timber was lifted to the level of the flooring, the super- 
 intendent called the plaintiff and directed him to help 
 in hauling it in between the legs of the derrick. As this 
 was being done by the plaintiff in conjunction with the 
 superintendent, the derrick was pulled up to a perpen- 
 dicular position and over backwards, striking the plain- 
 tiff and injuring him. The derrick was a proper one and 
 defendant had furnished sufficient ropes to guy it prop- 
 erly. The alleged negligence consisted in the failure of 
 the superintendent to guy the derrick in front. It was 
 held that the failure to guy the derrick was an act of 
 superintendence and that the superintendent was guilty 
 of negligence in not properly guying it after his atten- 
 tion had been called to the insufficiency of its support. 
 
 In Di Stefeno v. Peekskill Lighting & B. R. Co., 107 
 App. Div. 293, plaintiff was engaged as a laborer in a 
 qua.rry under defendant's foreman. Plaintiff knew 
 nothing of the qualities of dynamite and did not know 
 that there was a charge in some stone. When he first 
 struck the stone he heard a noise like a gun shot, but 
 was thereafter told by the foreman, who personally ex- 
 amined the stone, that there was no danger, and to 
 strike at a place which he indicated. Plaintiff did as 
 he was directed, struck the stone again and was injured 
 
102 The New York Employers' Liability Act. 
 
 by an explosion. It was held to be a negligent direction. 
 See, also, Carey v. Manhattan Ry. Co., 101 Sup. 631. 
 
 In Biogioni v. Eglee Bunting Co., 112 A. D. 338, 98 
 Sup. 591, plaintiff, a boy of IT, was employed by defend- 
 ant in constructing a piece of railroad. A car loaded 
 with stones and dirt was being pushed up an inclined 
 track of this railroad, and plaintiff was one of the men so 
 employed under the direction of one Doran, a foreman. 
 When the car was on this incline, the whistle blew, the 
 gang abandoned their work of pushing the car and 
 started away. The car thus left, started back down the 
 track, and the foreman ordered the plaintiff to take his 
 crow bar, put it under one of the wheels and stop the 
 car. In attempting to obey this order of the foreman, 
 plaintiff's leg was crushed under the bar. It was held 
 to be a negligent direction given by the foreman as an 
 exercise of superintendence. 
 
 In Braunberg v. Solomon, 102 App. Div. 330, 
 92 Sup. 506, plaintiff was injured by obeying 
 the direction of a foreman to use a cloth cut- 
 ting machine upon a table not suited to its 
 use. The direction was found to be negligent and the 
 verdict sustained. In Green v.. Smith, 169 Mass. 485, 
 plaintiff's intestate was killed by an explosion of dyna- 
 mite in a tunnel. It appeared that after a blast had 
 been exploded in the tunnel, defendant's workmen, in- 
 cluding the intestate and the person who was in super- 
 intendence of the work, returned down the shaft to the 
 tunnel, carrying dynamite with them. The only sur- 
 vivor of the explosion testified that as soon as they 
 reached the tunnel the superintendent told the witness 
 to go and get the loading stick, which he did and gave to 
 another workman near whom the superintendent was 
 standing; that the witness saw the dynamite placed in 
 
Negligent Directions. 103 
 
 the holes, after which the superintendent gave them 
 orders to go after the main wire; that the witness had 
 gone fifteen or twenty feet when the explosion occurred, 
 and that this was from fifteen to twenty minutes after 
 they started down the shaft An expert witness testified 
 that the explosion of dynamite was caused by the rock 
 in which the hole was drilled becoming heated by the 
 drilling and that it was dangerous to place dynamite 
 in a rock which was so heated, and that in his opinion 
 the second explosion was caused by heated holes. The 
 court says : "There was some evidence for the jury that 
 the defendant's superintendent, whilst exercising super- 
 intendence, directed dynamite to be put into a hole while 
 the rock was heated from the effect of a recent ex- 
 plosion; that under such circumstances an explosion 
 was likely or liable to occur, and that the explosion 
 which followed and caused the death of the plaintiff's 
 husband was the result of negligence on the part of the 
 fjuperintendent in thus directing dynamite to be put in 
 before the rock had begun to cool. 
 
 In Berthelson v. GabUr, 111 A. D. 142, 97 Supp. 421, 
 plaintiff was injured by the fall of a scaffold. As origin- 
 ally constructed the scaffold was safe but it was ren- 
 dered unsafe by the removal of a brick pier forming a 
 portion of the building under repair and which gave 
 some support to a joist which formed part of the scaf- 
 fold. The pier was removed at the instance and by the 
 direction of a person intrusted with superintendence. 
 The court held that there was evidence to warrant the 
 finding of negligence in the proof that the superintend- 
 ent was present at the work after the scaffold was com- 
 pleted and that he personally directed the removal of 
 the old front of the building, in doing which the center 
 
104 The New York Employers' Liability Act. 
 
 pier, which partly supported the scaffold, had to be 
 removed. 
 
 In Murray v. Rivers, 174 Mass. 46, the plaintiff was 
 injured by the premature falling of the hammer of a 
 pile driver. The defendant's superintendent gave the 
 engineer in charge of the pile driver word to start the 
 hammer before he had received word from the plaintiff, 
 who was at work below in the crib in the ground under 
 the pile driver, that he was ready for the hammer to 
 fall. Plaintiff had his right hand on the end of the pile 
 that was being driven to the ground at the time the 
 superintendent gave the direction, and it was injured. 
 The case was properly sent to the jury. 
 
 In Eaves v. Atlantic Novelty Mfg. Co., 176 Mass. 
 369, plaintiff was injured by having her fingers cut 
 off by a machine known as an " ending machine " while 
 in defendant's employ. The negligence claimed was 
 that a person exercising superintendence negligently 
 ordered the plaintiff to start the machine when he had 
 reason to know that it was in an unsafe condition to 
 start, and dangerous for a person in plaintiff's position 
 to obey the order, and while the plaintiff did not know 
 of the danger. Plaintiff's claim was that she had been 
 working on this machine when it became apparent that 
 there was something the matter with it. The superin- 
 tendent's attention was called to it, and he came 
 to see what was the matter and to remedy the trouble 
 if there was any. He got down behind the machine 
 and ordered the plaintiff to start the machine up. She 
 did so, and by obeying the order plaintiff was injured. 
 A recovery for the plaintiff was sustained. 
 
 In McCabe v. Shields, 175 Mass. 438, defendant's fore- 
 man, while acting as superintendent, was held negli- 
 
Negligent Orders. 105 
 
 gent in placing a dangerous appliance in the hands of 
 a workman with instructions to use it. 
 
 In Keating v. Coon, 102 App. Div. 112, 92 Sup. 474, 
 plaintiff, a minor, was hurt on machinery. The court 
 held on appeal that the failure to instruct this boy ade- 
 quately in the use of the machinery might be construed 
 as the negligence of the superintendent. 
 
 In O'Brien v. Nute-Hallett Go., Ill Mass. 422, plain- 
 tiff was a laborer employed by defendant in delivering, 
 grain. Plaintiff and defendant's superintendent ex- 
 amined a bin in which plaintiff was to work. The bin 
 was dark and the plaintiff told the superintendent that 
 he could not see the bottom of it, whereupon the super- 
 intendent told him it was all right and to come away. 
 He afterwards ordered plaintiff to go into the bin and 
 go to work. Plaintiff jumped in and instead of falling 
 on the floor or bottom of the bin, fell astride a joist 
 and was injured. The court held that the assurance 
 of the superintendent that the bin was all right when 
 he and the plaintiff were examining it, coupled with 
 the order to come away from it and the subsequent order 
 for the plaintiff to get into the bin, justified a finding 
 that the plaintiff was in the exercise of due care and that 
 the superintendent was negligent in ordering the plain- 
 tiff into the bin. 
 
 In Cavagnaro v. Clarke, 111 Mass. 359, plaintiff was 
 engaged in carrying bricks in a wheelbarrow from an 
 elevator to masons at work on a building. He was 
 returning with his empty wheelbarrow for the purpose 
 of descending on the elevator. Smith, defendant's su- 
 perintendent, was standing on the elevator as he 
 approached it, and it was customary when a person 
 had so placed himself on the elevator for any one 
 
106 The New York Employees' Liability Act. 
 
 standing near to press the button nearby as a signal 
 to lower the elevator. Plaintiff asked the foreman if 
 he had room to put his wheelbarrow on, and he replied 
 that there was not much room. Plaintiff then put the 
 wheelbarrow on the elevator and had one foot on it 
 when it started down, causing him to fall. The fore- 
 man himself testified that he jumped upon the elevator 
 and said, " let her go ;" that the workman who was 
 standing near pressed the button and shouted " stand 
 clear," and a minute or so later the elevator started 
 down, and that the first he knew of the plaintiff 
 being near was when he turned and saw him falling. 
 The court said the order " let her go " was itself an act 
 of direction or oversight tending to control others and 
 to vary their situation or action because of his direction. 
 ( Cashman v. Chase, 156 Mass. 342. ) Having given the 
 order and seen that it was followed by the signal, the 
 giving of which would cause the elevator to descend, 
 it was his duty to countermand the order and to take 
 means to prevent the elevator from going down, if, 
 after giving the signal, he had reason to suppose that 
 another person was about to attempt to put a wheel- 
 barrow on the platform, and that he had such reason 
 may be found from the plaintiff's testimony. This duty 
 of countermanding the order which he had given, or of 
 taking some meaus to prevent the injury to a workman 
 whom he knew was about to put himself in danger by 
 doing an act which would have been safe but for the 
 fact that the elevator was about to go down, was itself 
 a duty of superintendence, a duty to perform an act 
 of direction or oversight tending to control others, and 
 which his position as superintendent required him to 
 give, and made it negligence in his work of superin- 
 tendence not to give. {McCauley v. Nor cross, 155 Mass. 
 
Negligent Orders. 107 
 
 584. ) In Millard v. West End Street Ry. Co., 173 Mass. 
 612, a pile of lumber had been erected for a temporary 
 purpose in a careless manner. Defendant's superintend- 
 ent directed plaintiff to go upon the lumber, and he 
 was injured by complying with the direction. Held, to 
 be negligence of the superintendent. 
 
 Where the direction by the superintendent is in itself 
 proper it is not a negligent act of the superintendent not 
 to wait and see whether the direction is properly carried 
 out by the workman. {White v. Vnwin, 188 Mass. 490.) 
 In O'Brien v. West End Ry. Co., 173 Mass. 105, a motor- 
 man employed by defendant was injured. Defendant's 
 superintendent gave an order to the motorman, which 
 placed him in a dangerous position if a car should come 
 forward on the other track. While the motorman was 
 in this position the superintendent gave an order to 
 the motor man of another car on the other track, stand- 
 ing six or eight feet from the front end of the plaintiff's 
 car, to come ahead. As the car did so, plaintiff, while 
 raising himself from a stooping position, was caught 
 between the guard rails of the two cars and injured. 
 Held, to be a negligent direction given in the exercise 
 of superintendence. See, also, Carlson v. United Enr 
 gineering & Construction Co., 113 A. D. 371, 98 Sup. 
 1036; Cunningham v. Atlas Taclc Co., 187 Mass. 57; 
 Martin v. Merchants and Miners Transportation Co., 
 185 Mass. 487. 
 
 O'Brien v. West End Ry. Co., 173 Mass. 105, supra, is 
 similar in its facts to the case of McCosker v. L. I. R. R. 
 Co., 84 N. Y. 77. In this case McCosker, plaintiff's intes- 
 tate, was employed by and under the control and super- 
 vision of a yardmaster. While engaged under the yard- 
 master's direction in attaching a damaged car standing 
 on the track in the yard to another car, the yardmaster 
 
108 The New Yoek Employees' Liability Act. 
 
 negligently signalled to the engineer, whose train stood 
 upon the track, to back his train, which he did without 
 signalling or warning, and in consequence, McCosker 
 was crushed between the cars, receiving injuries which 
 caused his death. The New York Court of Appeals 
 held under the common law that the yardmaster was 
 fellow servant with the deceased as to all acts done in 
 the range of their common employment, except those 
 done in the performance of some duty which defendant 
 owed to its servants, that the act in question was not 
 one of that character, and that, therefore, defendant was 
 not liable. 
 
 4. Failure to inspect or superintend. — The liability 
 of the employer is not limited to what the superin- 
 tendent or acting superintendent actually knows, but 
 includes liability for what such superintendent ought 
 to have known through proper inspection. {Feeney, 
 V. York Mfg. Co., 189 Mass. 336 ; Arkerson v. Dennison, 
 117 Mass. 407; Connolly v. Waltham, 156 Mass. 368.) 
 In Meehan v. Atlas Safe Moving Co., 94 A. D. 306 (affd. 
 185 N. Y. 586), plaintiff 's intestate was killed by the 
 breaking of a piece of timber known as a jack used to 
 support a safe which intestate was engaged in hoisting 
 into the second story of a building. The timber had 
 dry rot, to which hickory is especially susceptible, and 
 which condition is not visible from the outside and can 
 only be detected by boring. The court held defendant 
 negligent, both under the Liability Act and at common 
 law, for failure to establish a system of inspection for 
 such defects. See, also, Low v. Wakefield, 185 Mass. 
 214; McEee v. Tourtelotte, 167 Mass. 69; Solvari v. 
 Clark, 187 Mass. 229; Datcson v. Lawrence Gaslight 
 Co., 188 Mass. 481. It may be said, however, as to tools, 
 that ordinarily the superintendent is under no obliga- 
 
Failure to Inspect^ Etc.. 109 
 
 tion to examine them for latent defects. {Murphy v. 
 Marston Coal Co., 183 Mass. 385. ) In McOauley v. Nor- 
 cross, 155 Mass. 584, plaintiff was injured while work- 
 ing in the erection of a large building under defendant's 
 superintendent. Some iron beams were placed about 
 three and one-half feet from an opening on one of the 
 floors and had been there for two or three days before 
 tlie accident. On the day of the accident defendant's 
 superintendent, who was on crutches and in the exercise 
 of his duty, was walking about the floor upon which the 
 beams were placed. In order to pass between a pile 
 of planks and these beams he touched the beams and 
 they swung round on other beams and fell through the 
 hole in the floor upon the plaintiff. The court says that 
 the fact that the superintendent himself happened to 
 be the person who pushed the beams with his foot is 
 of no importance, because that is not an act of super- 
 intendence. If, however, the beams were so left that 
 one of them would be liable as a natural consequence 
 from some intervening cause or agency to be so moved 
 that it might fall through the floor, the fact that an 
 intervening act or agency occurred which directly pro- 
 duced the injuries, resulting, would not necessarily ex- 
 onerate the defendant from responsibility. Superin- 
 tendence is necessary in order to guard against injuries 
 from such intervening and inadvertent acts of careless 
 persons as are likely to happen, and should be guarded 
 •against. The question is whether the moving of the 
 beams was so likely to occur that it should have been 
 provided against by the superintendent. This question 
 was one properly for the jury.' 
 
 9. Compare with Oa/rroll v. 
 .WUlcutt, 163 Mass. 221. 
 
110 The New York Employers' Liability Act. 
 
 In Slattery v. Walker <& Pratt Mamifacturing Co., 
 179 Mass. 307, the court held that the proprietor of a 
 factory was liable to an employee who was injured by 
 the breaking of a check valve of a hoisting machine. 
 The defendant's superintendent, without ascertaining 
 how much pressure the valve would stand, had negli- 
 gently substituted an insuflBcient valve for the. one 
 which came with the machine, and the injury was oc- 
 casioned by the plaintiff's putting too much pressure 
 upon it. The court held that the defendant company 
 was liable for this act of negligence by the superin- 
 tendent. 
 
 In Reynolds 'v. Barnard, 168 Mass. 220, the personal 
 injuries were caused to plaintiff by the breaking of a 
 temporary staging put up by workmen for their own 
 use while slating a roof. The staging broke by being 
 overloaded with slate, and the court held that it was 
 a question for the jury whether a careful oversight of 
 the work by the superintendent would not have pre- 
 vented the loading of the staging with slate to such an 
 extent as to make it dangerous. 
 
 In Bapson v. Leighton, 187 Mass. 432, the super- 
 intendent interfered with plasterers who were erecting 
 a temporary staging and ordered them to use a certain 
 ledger board to support the staging at one end, without 
 making any inspection. The board was obviously unfit 
 for this purpose and another employee later was in- 
 jured by its giving way. This was held to be a negli- 
 gent act of superintendence. See, also. Murphy v. N. Y., 
 N. E. d H. Ry. Co., 187 Mass. 18. 
 
 In Feeney v. York Mfg. Co., 189 Mass. 336, the acci- 
 dent resulted from a defective scaffolding which the 
 superintendent directed plaintiff to use, without having 
 inspected it, the defect being one easily discoverable on 
 
What Are Not Acts of Supeeintendence. Ill 
 
 inspection. The court says : " By the statute the right 
 to recovery is not limited to injuries caused to employees 
 by defective permanent appliances, but also embraces 
 wrongs that may arise from the negligence of the em- 
 ployer or of those properly representing him in direct- 
 ing an employee to use an unsafe appliance, even though 
 of a temporary character. Citing Arkerson v. Dennison, 
 117 Mass. 407; Ryan v. Tarhox, 135 Mass. 207; Haley 
 V. Case, 142 Mass. 316; Meagher v. Crawford Laundry 
 Co., 185 Mass. 586. 
 
 Sec. 34. What are not acts of superintendence. 
 
 The meaning of the words "exercising superintend- 
 ehce " and " whilst in the exercise of superintendence " 
 may perhaps be made clearer by considering some of 
 the cases in which the acts of the negligent person were 
 held not to be acts of superintendence. As has been 
 seen (see sec. 32, supra) the liability of the master for 
 the negligence of a superintendent must be ascertained 
 by determining whether or not the act done or omitted 
 by the person exercising superintendence was also done 
 in the exercise of the superintendence itself. If not, if 
 the act itself was one which related only to the duty of 
 an ordinary employee, liability does not attach. If, 
 however, the act was one done in the exercise of super- 
 intendence, it is immaterial whether the act through 
 which that superintendence was expressed was itself 
 one of manual labor. It makes no difference in the 
 master's liability, moreover, that the work upon which 
 men are engaged under the direction of a superintend- 
 ent is that of making a temporary appliance or a struc- 
 ture of a temporary nature, provided it be done under 
 the direction of a superintendent and according to such 
 direction. {Berthelson v. Gahler, 111 App. Div. 142, 97 
 
112 The New Yoek Employees' Liability Act. 
 
 Sup. 421; White v. William H. Perry Co., 190 Mass. 99; 
 Feeney v. York Mfg. Co., 189 Mass. 336; Murphy v. 
 N. Y., N. H. & H. Railroad Co., 187 Mass. 18; Millard 
 V. West End Street Railway Co., 173 Mass. 512. ) 
 
 In Guilmartin v. 8olvay Process Company (101 
 Supp. 118), the plaintiff had been injured while en- 
 gaged in untangling a belt under the direction of a 
 foreman, who directed the plaintiff in assisting him. 
 The question of negligence arose as to the foreman's 
 failure to stop the machinery while this work was 
 going on. The foreman directed this workman to get 
 over on the other side of the shaft and throw the belt 
 off, and while the plaintiff was doing it, his foot was 
 caught by the belt, causing his injuries. The court 
 says " that the attempt to extricate the belt without 
 stopping the machinery was a mere detail of the work 
 and for that reason the defendant was not liable." It 
 cites Foster v. International Paper Company, 183 N. Y. 
 50, in support of its conclusion. The correctness of the 
 reasoning of this case is very doubtful. There is 
 nothing in the act which prevents the liability of the 
 employer attaching to a negligent act or direction of a 
 superintendent in the exercise of superintendence 
 simply because the direction given to the employee 
 happens to relate to a detail of the work. If such act 
 of the superintendent was a negligent one, or such 
 direction given in relation to this detail was an im- 
 proper one under the circumstances, there is no reason 
 which the statute affords why the employer should not 
 I)e held responsible, nor is the fact that the foreman 
 was taking part himself in this work of extricating the 
 belt a reason why his determination as to how that 
 work should he done should not be considered as the 
 i'xercise of superintendence and the employer held 
 
What Abe Not Acts of Superintendence. 113 
 
 liable for his negligence, if it was negligence, in direct- 
 ing the work of repairing the difficulty to be carried on 
 with the machinery in motion. The application of com- 
 mon law principles to this section of the act in this case 
 is clearly erroneous and has been criticised elsewhere 
 in a preceding section of this work. 
 
 In Bannon v. N. T. Central, 112 App. Div. 552, 98 
 Supp. 770, plaintiff was engaged with others in re- 
 pairing bridges on a railroad. He was a member of 
 the bridge gang under one Mickel, an acting superin- 
 tendent of defendant. On the day of the injury the 
 bridge gang was engaged in repairing a stone culvert. 
 The material for the repairs was placed between the 
 tracks, near the culvert, and in the progress of the work 
 it became necessary to build fires on such material to 
 thaw it out so that it could be handled, and the men 
 went to work gathering material, old ties, etc., with 
 which to make a fire. In the course of the work 
 Mickel, who was in charge of the men, himself 
 attempted to draw ties across one of the tracks for the 
 purpose of putting it on the fire, the plaintiff at the 
 time being upon the track adjoining. Before Mickel 
 got the tie entirely across the track an express train, 
 going at a rate of fifty or sixty miles an hour, struck 
 the tie in such a manner that it was thrown upon the 
 adjoining track, struck the plaintiff' and broke his leg. 
 It was sought to hold defendant on two grounds, first 
 because Mickel, while acting as superintendent, at- 
 tempted to move the tie in front of the train and was 
 negligent in performing such work, and second, be- 
 cause he failed to give warning of the approach of the 
 train. The court says: "As to the first ground upon 
 liability which is sought to be predicated, we think it is 
 apparent that the act of Mickel in attempting to re- 
 
114 The New Yoek Employees' Liability Act. 
 
 move the tie across the track was not an act of super- 
 intendence, but was the act of a co-employee for which 
 the defendant is not liable. Liability for negligence in 
 superintending is what is created by the statute and 
 not for the negligent act of a superintendent, in no 
 manner connected with his duties as such." (Citing 
 Quinlan v. Lackawanna Steel Co., 107 App. Div. 176, 
 94 Sup. 942.) 
 
 As to the second ground, the failure of Michel to give 
 warning, the court held it was not the proximate 
 cause of the accident as the plaintiff was in a safe 
 place, except as it was rendered unsafe by the negli- 
 gent act of Michel. 
 
 In Hoffman v. Holt, 186 Mass. 572, two painters 
 were at work on a job, one being in charge of it. One 
 of them climbed a ladder which had no hook or cleat to 
 hold it to the roof, and the other, who was in charge 
 of the job and who was to hold the ladder while the 
 other one climbed, let go of the ladder so that it 
 slipped, throwing plaintiff from it. The court held 
 that the act of holding the ladder was not an act of 
 superintendence. " When one person acts as both a 
 common laborer and a boss and is expected to work 
 with a"id as the other workman, even his words of com- 
 mand are not necessarily acts of superintendence. 
 {Whittaker v. Bent, 167 Mass. 588.) We think that 
 the act of Donovan in attempting to hold the ladder 
 and letting it slip was not an act of superintendence 
 but of simple manual labor." (Citing Riou v. Rockport 
 Granite Co., 171 Mass. 162; Flynn v. Boston Electric 
 Ught Co., 171 Mass. 395.) 
 
 In Riou V. Rockport Granite Co., Ill Mass. 162, 
 plaintiff was injured by the explosion of a can of 
 blasting powder which defendant's superintendent had 
 
What Are Not Acts of Supeeintendenoe. 115 
 
 put on a sliding ledge on the side of the pit in defend- 
 ant's quarry above the place where the plaintiff was 
 working. The court says : " If the work of blasting 
 was in some sense in the nature of superintendence, 
 the mere act of fetching and putting down a can of 
 powder preparatory to blasting could hardly be de- 
 scribed as an act of superintendence or as anything 
 more than an act of manual labor on the part of 
 Labelle (the foreman). When a person is employed to 
 work with his hands as well as to exercise superintend- 
 ence, as was the case with Labelle, the line must be 
 drawn somewhere between what are acts of superin- 
 tendence and what are acts of manual labor, or all that 
 he does must be regarded as superintendence or manual 
 labor, which manifestly would be unjust. We think 
 that in this case the act of fetching and putting down 
 a can of powder must be regarded as an act of manual 
 labor." (See, also, Quinlan v. Lackawanna Steel Co., 
 107 App. Div. 176, and sec. 30, supra.) 
 
 In Cashman v. Chase, 156 Mass. 342, the plaintiff, 
 while at work in the hold of a vessel, was struck by a 
 hook swinging at the end of a fall of rope which 
 escaped from the control of a fellow workman. The 
 fall was raised and lowered by a steam engine placed 
 on a lighter between the vessel and the wharf. The 
 order to raise and lower were given by a workman in 
 the hold to the stageman on the deck of the vessel and 
 by him repeated to the engineer. The hook was in the 
 hands of a workman in the hold, and it was necessary 
 to lower the fall to enable him to attach the hook to a 
 bundle of laths. The order to lower was correctly given 
 to the stageman and repeated by him to the engineer, 
 who raised the fall when he was told to lower, and the 
 hook was thus pulled away from the workman who held 
 
116 The New York Employees' Liability Act. 
 
 it and swung against the plaintiff. The plaintiff con- 
 tended that the engineer was a i)erson entrusted with 
 and exercising superintendence, and whose sole and 
 principal duty was that of superintendence, and that 
 the act of raising the fall was an act of superintendence. 
 After considering the question as to whether the facts 
 in the case showed that the engineer was a superin- 
 tendent, the court said that aside from this the act of 
 improperly raising the fall was not an act of superin- 
 tendence. It was evident that in operating the engine, 
 he was doing the work of a laborer acting upon the 
 directions of others and not directing them. 
 
 In Cunningham v. Lynn 8tr. Ry. Co., 170 Mass. 298, 
 the foreman of a repair shop ordered the employees 
 under him to take a defective truck out of the shop, 
 and, directing their movements, assisted them in so 
 doing, and performed some of the work himself. The 
 court held that the facts would not justify the jury in 
 finding that while so working the foreman was exercis- 
 ing superintendence. 
 
 In O'Keefe v. Brovmell, 156 Mass. 133, a truck con- 
 sisting of a plank about four feet long and a foot or 
 more wide was used by defendant in his business. 
 Across one surface of this truck and near its centre 
 was attached an iron roller, revolving upon an axis 
 held to the side of the plank by suitable bearings. 
 When placed upon the floor with the roller down, the 
 instrument could be moved about with a load resting on 
 the plank, and when placed with the plank downward 
 it was intended to remain stationary, and beams or 
 planks could then be moved by resting them upon the 
 roller and moving them when so started. It was a 
 movable tool in good order. It was liable when used 
 for certain purposes at the edge of an open well to fall 
 
What Are Not Acts of Supeeintendence. 117 
 
 into the well, to prevent which, it could be fastened to 
 the floor on which it rested or blocked with a cleat, but 
 when used as a vehicle on which to transport articles, 
 such fastening or blocking would wholly prevent such 
 use. While placed with the plank down, and station- 
 ary and being used by fellow workmen in landing upon 
 the floor of an upper story heavy planks, which were 
 being hoisted by a block and fall, the truck fell through 
 a hole in the floor upon plaintiff's intestate, who was 
 on the floor below. It was held that the duty of using 
 this truck in a safe manner was the duty of ordinary 
 workmen who handled and used it rather than a duty 
 of the employer, or a duty of superintendence, and the 
 omission to use appliances for blocking or fastening 
 was not the negligence of a superintendent but the neg- 
 ligence of fellow workmen. 
 
 In Fleming v. Elston, 171 Mass. 187, the cause of 
 plaintiff's injuries were somewhat obscure. He was 
 employed in taking down a building, and in lifting a 
 piece of iron, which he was not able to lift alone, and 
 which had become loosened from the outer wall and 
 had to be lifted from the floor. While in this position 
 something struck him upon his leg and he lost his bal- 
 ance and fell into the street and was injured. There 
 was evidence that the superintendent was near the 
 plaintiff just before the accident with a crowbar in his 
 hand, and the plaintiff sought to raise the inference 
 that he had been struck by the crowbar. The court 
 says : " None of the circumstances appear, and even if 
 it were admitted that the injury was caused by the 
 superintendent's negligence, there is nothing to show 
 that it was negligence in the exercise of superintend- 
 ence rather than manual labor, in doing which the 
 superintendent stood like any fellow servant. Per- 
 
118 The New York Employees' Liability Act. 
 
 mitting himself or another laborer to be in the plain- 
 tiff's neighborhood with a crowbar in his hands, cannot 
 be found to be negligent superintendence, without 
 more, merely because the event showed that it was 
 possible to do harm by negligently handling or by 
 dropping the bar. 
 
 In Whelton v. West End Street By. Co., 172 Mass. 
 556, a person was employed by a street railway com- 
 pany as car shifter, whose duty it was to get cars ready 
 for conductors and motormen. Upon the occasion when 
 the accident occurred he went into a car house for a 
 car which had to be moved to the main track by means 
 of a transfer table, moved by electric power and 
 operated by the car shifter himself. He ran the car on 
 to the table, handed the trolley rope, which had to be 
 shifted to the other end of the car, to the conductor, 
 saying, " here's the rope," and when the conductor had 
 walked with the rope half-way around to the middle 
 of the car the car shifter started the car. The con- 
 ductor called on him to wait, as a spring attached to 
 the roof of the car was caught, and the conductor, while 
 trying to free the spring, was injured by the moving 
 of the table. There was a foreman who had charge of 
 the car house, but he was not present at the time of the 
 accident. The court held that neither the starting of 
 the table, nor the failure to stop it, were acts of super- 
 intendence. 
 
 Wanton and wilful acts hy superintendents. — There 
 is nothing in the wording of the liability acts which 
 expressly covers wanton or malicious acts done by 
 superintendents. Nor, however, is there anything in 
 the wording of the act which would necessarily restrict 
 the scope of the law to negligent acts and omissions. 
 While it is still uncertain in most of the States whetiier 
 
Wanton and Wilful Acts of Superintendent. 119 
 
 the master is responsible under the act for wilful in- 
 juries inflicted by a superintendent, it is settled in 
 Alabama that such liability exists, and that contribu- 
 tory negligence is no defence when the injuries are thus 
 occasioned. Nor does the employee assume the risk of 
 injury from the wilful act of a superintendent. (See 
 Southern By. Co. v. Moore, 128 Ala. 434; Louisville & 
 Nashville B. B. Co. v. York, 128 Ala. 305 ; Louisville & 
 Nashville B. R. Co. v. Trammell, 93 Ala. 350; Kansas 
 City M. & B. B. B. Co. v. Crocker, 95 Ala. 412; Bich- 
 mond & D. B. B. Co. v. Farmer, 97 Ala. 141; Lee v. De 
 Bardelehen Coal & Iron Co., 102 Ala. 628 ; ChamUiss v. 
 Mary Lee Coal, etc., Co., 104 Ala. 655 ; Alabama & G. S. 
 B. B. Co. v. Hall, 105 Ala. 599; L.d N. B. B. Co. v. 
 Markee, 103 Ala. 160; L. & N. B. B. Co. v. Crawford, 89 
 Ala. 245; h. & N. B. B. Co. v. Watson, 90 Ala. 68.) 
 
 It is difficult to understand how a wanton and ma- 
 licious act can be done " in the exercise of superintend- 
 ence " and be in itself " an act of superintendence," and 
 this point does not seem to be discussed in the Alabama 
 cases. 
 
 A New York case, Qabrietson v. Waydell, 135 N. Y. 1, 
 holds that the risk of being assaulted and injured by an 
 officer of a yessel is one of the assumed risks which a 
 sailor takes in his employment, and that the ship's 
 owner is not liable for such injuries. 
 
 Sec. 35. Acting superintendents. 
 
 The employer is under the same liability for the neg- 
 ligence of a person " acting as superintendent with the 
 authority or consent of such employer " in the absence 
 of the superintendent, as if the negligence were that of 
 the superintendent himself. This liability is proved 
 only in cases where it is shown (1) that the superin- 
 
120 The New Yoek Employees' Liability Act. 
 
 tendent or person, whose sole or principal duty is that 
 of superintendence, is absent; (2) that the negligent 
 act was done in his absence by some one acting as such 
 superintendent; (3) that in so acting, he had the 
 authority or consent of the employer; (4) that the act 
 or omission done by this person was so done in the 
 exercise of superintendence. 
 
 The authority or consent of the employer is suffi- 
 ciently shown by the manner of doing business, where, 
 for example, it appears that the person charged with 
 negligence has acted for a considerable period as super 
 intendent during the absence of the superintendent, 
 {Faith V. New York Central & E. R. R. Co., 109 App, 
 Div. 222, 95 Sup. 774; affirmed, no opinion, 185 N. Y 
 556.) See, also, McHugh v. Manhattan Ry. Co., 179 N.Y, 
 378. The " consent " or " authority " may be shown by 
 proving that the superintendent delegated his duty in 
 his absence to the person charged with negligence. 
 {McBride v. N. Y. Tunnel Co., 101 App. Div. 448, 92 
 Supp. 222; Knight v. Overman Wheel Co., 174 Mass. 
 455.) Unless there be evidence that the functions of 
 the superintendent have devolved upon an acting super- 
 intendent, the master is not responsible. When, for 
 example, it is shown that there is a superintendent 
 elsewhere engaged, defendant is not liable for the 
 negligence of another acting in his absence merely be- 
 cause he is described as " foreman." {Hughes v. Rus- 
 sell, 104 App. Div. 144, 93 Sup. 307; Abrahamson v. 
 General Supply & Construction Co., 112 App. Div. 
 318.) In Quinlan v. Lackaicanna Steel Co., 107 App. 
 Div. 176, 94 Sup. 942, it has been said that in 
 determining whether or not a person is an acting super- 
 tendent within the meaning of this section, the test for 
 it " is not simply the power to instruct or even to direct 
 
"Acting-'-' Superintendent. 121 
 
 in a particular manner that constitutes superintend- 
 ence witliin the meaning of the law, but it must be such 
 a supervision and charge as gives power of direction; 
 and it must be with authority to direct the manner and 
 means of prosecuting the work in charge." The fact 
 that there is in the master's service a general superin- 
 tendent will not relieve him from responsibility for the* 
 acts of a foreman whose principal duty is superintend- 
 ence. {Carlson v. United Engineering & Contracting 
 Co., 113 App. Div. 371, 98 Sup.' 1036. See, also. Ma- 
 honey V. Bay State Pink Granite Co., 184 Mass. 287. ) 
 
 Sec. 36. Superintendence need not be over injured person- 
 It is not necessary that the person injured should be 
 personally under the direct control of the superintend- 
 ent, in order to make the master liable for injuries 
 received by a negligent act of superintendence. As the 
 court says in Kansas City M. & B. Rd. Co. v. Burton, 
 97 Ala. 240: "We are unable to agree with counsel 
 ' that the superintendence which comes within the con- 
 templation of the statute shall be a superintendence 
 over the person who complains of the negligence of the 
 person entrusted with it.' The remedy for negligence 
 of superior in the control of inferior employees, 
 whereby injury results to the latter, is given by subsec- 
 tion 3 of sec. 2590, Code. Under subsection 2 it is 
 manifest, we think, the liability of the defendant is in 
 no sense dependent upon the relations existing in the 
 service between the negligent and the injured person. 
 If the former has superintendence entrusted to him, 
 and is negligent in the exercise of it to the injury of any 
 servant or emplayee in the service or business of the 
 master, whatever be the relation inter se of the 
 servants, the master is made liable therefor by the verf 
 
122 The New York Employees' Liability Act. 
 
 terms of the statute. If a yard master, charged with 
 the duty of keeping the tracks clear, should negligently 
 obstruct a track, and in consequence the president of 
 the company should be injured in the service of the 
 employer, the corporation, it cannot be doubted that 
 the latter would have to respond in damages." 
 
 In Kearney v. Nicholl (1880), 76 L. T. Jour. 63, a 
 machinist was injured owing to negligence of a person 
 superintending the structural alterations in a mill. It 
 Avas held that the statute applied whenever there is a 
 common master though the injured servant is employed 
 in a department distinct from that controlled by the 
 negligent servant. (See, also, Ray v. Wallis (1887), 51 
 J. P. 519.) 
 
The Notice of Injury. 123 
 
 CHAPTER IV. 
 
 Notice of Injury. 
 
 Sec. 37. The statutes compared. 
 
 No notice to the employer of the time, place or cause 
 of injury is required in Indiana or Alabama. In Massa- 
 chusetts and Colorado a notice must be given within 
 sixty days after the accident. The action must be com- 
 menced, in Massachusetts and New York, within a year 
 after the accident, and in Colorado within two years. 
 Under the Massachusetts law the notice must be in 
 writing, signed by the person injured, or by some one 
 in his behalf, but if, for physical or mental incapacity, 
 it is impossible for the person injured to give the notice 
 within the time provided, he may give the same within 
 ten days after such incapacity is removed, and, in case 
 of his death, without having given such notice, " and 
 without having been for ten days at any time after his 
 injury of sufficient capacity to give the notice, his ex- 
 ecutor or administrator may give such notice within 
 thirty days after his appointment." The Colorado law 
 has no such provision relieving plaintiff from the opera- 
 tion of the limitation upon the time of commencing 
 the action. In every case the notice must be given 
 within sixty days after the accident. The Massachu- 
 setts, Colorado and New York statutes, in substantially 
 the same language, provide that a notice given under 
 the provisions of this act shall not be held invalid or 
 insufficient solely by reason of any inaccuracy in stating 
 
124 The New Yoek Employers' Liability Act. 
 
 the time, place or cause of the injury, if it is shown that 
 there was no intention to mislead, and that the em- 
 ployer was not, in fact, misled thereby. 
 
 The English law provides that an action for the re- 
 covery of compensation under the act shall not be 
 maintainable unless notice that injury has been sus- 
 tained is given within six weeks and the action is com- 
 menced within six months after the accident, or, in case 
 of death within twelve months after the death, pro- 
 vided, that in case of death, the want of such notice shall 
 be no bar to the maintenance of an action if the judge 
 shall be of the opinion that there was reasonable excuse 
 for such want of notice. The notice required by the 
 English act includes the name and address of the person 
 injured, which is not required in New York or Massa- 
 chusetts, and a statement in ordinary language of the 
 cause of the injury and the date at which it was sus- 
 tained. The English law does not require a statement 
 of the place where the injury occurred. The provisions 
 of the English statute regarding service of notice are 
 substantially similar to the New York law and will be 
 considered later. The English law further provides that 
 the notice shall not be deemed invalid by reason of any 
 defect or inaccuracy therein, unless the judge who tries 
 the action is of the opinion that the defendant is pre- 
 judiced in his defense by the defect or inaccuracy, and 
 also that the defect or inaccuracy was for the purpose 
 of misleading. The notice required by the New York 
 statute contains features in common with both the 
 Massachusetts and the English laws, but it differs in 
 important particulars from both. Under the New 
 York statute, section 2, no action for the recovery of 
 compensation for injury or death under this act shall 
 be maintained unless notice of the time, place and cause 
 
Notice by Executors^ Etc. 125 
 
 of injury is given to the employer within 120 days 
 and the action is commenced within one year after the 
 occurrence of the accident causing injury or death. The 
 word " maintained," as used in this section of the New 
 York statute, has been held to be synonomous with " be- 
 gun" or "commenced." {Grasso v. Eolhrook, Cabot & 
 Daly Co., 102 A.D. 49,' 92 Sup. 474.) In the time allowed 
 for giving notice it will be seen that the New York 
 statute is much more liberal than either the English, 
 Massachusetts or Colorado laws. The contents of the 
 notice required is similar to that of the Massachusetts 
 law. It must be in writing, signed by the person in- 
 jured, or by some one in his behalf, but if from physical 
 or mental incapacity it is impossible for the person 
 Injured to give notice within the time provided by the 
 law he may give the notice within ten days after his 
 incapacity is removed. 
 
 Sec. 38. Notice by executors or administrators. 
 
 The New York statute is more liberal than the Massa- 
 chusetts law in cases where the injury results in death. 
 Under the Massachusetts law, if an employee is injured 
 and dies, the right of actmn under the Liability Act is 
 absolutely lost if the employee survive the accident ten 
 days, and during these ten days was mentally clear- 
 minded enough to authorize or procure another to give 
 the notice for him and the notice was not given.^ 
 This provision is omitted by the New York statute, 
 and the statute provides that in case the em- 
 ployee dies without having given notice, his ex- 
 ecutor or administrator may give such notice within 
 
 1. Vash V. InhaUtantg of Barclay v. City of Boston, 173 
 South Eadley, 145 Mass. 103; Mass. 311. 
 
126 The New York Employers' Liability Act. 
 
 sixty days after his appointment. It would appear^ 
 therefore, that a liberal construction of this notice 
 clause would permit the executor or administrator to 
 give the notice required at any time within one year. 
 As will be seen later (sec. 42) notice must be served 
 before the action is brought, and as the action must be 
 brought within a year the notice must, therefore, be 
 served within that period. 
 
 In death cases where timely notice was given by the 
 injured party in his lifetime no new notice need be given 
 by the administrator. Where no such notice was so 
 given by the injured person, the statute provides that 
 the administrator may give notice of the time, place and 
 cause of the accident within 60 days after his appoint- 
 ment. An interesting question on which conflicting de- 
 cisions have been rendered arises in cases where the 
 notice was not given by the administrator within 60 days 
 after his appointment, but was, however, given within 
 120 days after the injury had been received, beiilg the 
 period within which the injured person, if living, might 
 have given the notice. It has been argued in such cases 
 that inasmuch as the deceased himself could have 
 given notice at any time within 120 days after the ac- 
 cident, it was not intended that the administrator should 
 be required to give the notice in a shorter period. In 
 Hoehn v. Lautz, 94 App. Div. li^ 87 Sup. 921, the Appel- 
 late Division of the Fourth Department decided in such 
 a case that a notice served 97 days after the appointment 
 of the administratrix and 107 days after the death of the 
 intestate was timely. The court says : " The notice in 
 this case was served within 120 days after the accident 
 but not within 60 days after the appointment of the 
 administratrix. Was it served in due time so as to 
 give the plaintiff the benefit of the provisions of the 
 
Notice Given by Executors. 127 
 
 act? We think it was. It seems to us the real inten- 
 tion of the statute was to give 120 days in all cases to 
 serve the notice and to give time beyond that in cases 
 of incompetency or death, if additional time was neces- 
 sary; ten days after the incapacity was removed or 60 
 days after the appointment of the administratrix. We 
 do not think the intention in either case was to shorten 
 the 120 days in which the notice might be given. We 
 see no reason to hold so strict a rule against a plaintiff 
 in an action under the statute." 
 
 In Randall v. Holbrook GontraGtvng Company, 95 
 App. Div. 337, 88 Sup. 681, a contrary conclusion 
 was reached by the Appellate Division in the First 
 Department. The accident happened on November 
 28, 1902; the deceased died December 22, 1902. 
 Letters were issued to plaintiff on December 31, 
 1902, and the notice was given seventy-six days 
 after the plaintiff's appointment but less than 120 
 days after the happening of the accident. The trial 
 court had held that if the notice was served within 120 
 days of the accident the requirement of the law was 
 complied with. On the appeal the attention of the court 
 was not called to the earlier ease last cited. The court 
 said : " No notice in this case was given by the injured 
 employee or by any one in his behalf. It is not claimed 
 that he authorized a notice to be given nor that the plain- 
 tiff acted in his behalf in giving the notice. The right 
 of action in the injured employee abated at his death. 
 His estate had no right of action to recover for the 
 injury. If his death was caused by the negligence of 
 the defendant a right of action is given hj section 1 of 
 the statute to his administrator, not as representing the 
 decedent, but for the benefit of his next of kin, and that 
 right of action arose upon the death of the decedent if 
 
128 The New York Employees' Liability Act. 
 
 caused by an injury for which the defendant was liable. 
 As to that cause of action it could be maintained only 
 upon the administrator giving the notice that section 2 
 of the act required, and the provisions of this act is 
 explicit that such a notice must be given by the ad- 
 ministrator within 60 days of his appointment as such. 
 If a notice had been given by the decedent during his 
 life, it was evidently the intention of the statute that 
 such notice should inure to the benefit of the adminis- 
 trator in enforcing the right of action which the statute 
 gives to the administrator for the benefit of the next of 
 kin of the decedent. But the cause of action which the 
 decedent had prior to his death having abated 6// hif< 
 death, and a neio cause of action having been given to 
 his administrator for the benefit of the next of kin, it 
 would seem to follow that such cause of action could, 
 only be enforced hy the administrator giving notice as 
 required by section 2 of the statute and such notice mu^t 
 be given vnthin 60 days of the appointment of the ad- 
 ministrator. \A'hether this was a greater or less period 
 than the 120 days within which the employee was re- 
 quired to give notice to sustain the action against the 
 employer would seem to be immaterial. What the stat- 
 ute requires is that the executor or administrator, to 
 maintain the action, must give the notice required by 
 section 2 of the statute within 60 days of the time of 
 his appointment; and this notice not having been given 
 within sixty days, the action cannot be maintained." 
 This decision was followed by a similar ruling in the 
 same department in Holm v. Empire Hardware Co:, 102 
 A. D. 505. The more liberal construction of the statute 
 giren in Hoehn against Lautz would seem to be more 
 within the policy of the courts as declared by the Court 
 of Appeals. (See Conolly v. Hyams, 176 N. Y. 403; Mc- 
 
Service of Notice. 129 
 
 Knight v. City of New York, 186 N. Y. 35.) Neither of 
 the conflicting cases cited above have yet been heard, 
 however, by the Court of Appeals. 
 
 Sec. 39. Service of notice. 
 
 The Massachusetts act provides for a written notice 
 given to the employer, but contains no other provision 
 regarding its service upon him. The English act of 
 1880 and the New York act both contain provisions 
 regulating the manner in which notice shall be given. 
 The English law provides (sec. 7, p. 253) that notice shall 
 served on the employer, or, if there be more than one 
 employer, upon one of such employers. It may be 
 served by delivering it to the employer in person, 
 wherever he may be found, or at his residence or place 
 of business. Notice can be served by post by registered 
 letter addressed to the person on whom it is to be served 
 at his last known residence or place of business, and, 
 if so served, shall be deemed to have been served at 
 the time when a letter containing the same would be 
 "delivered in the ordinary course of post, and, in proof 
 of the service of notice, it shall be sufficient to, prove 
 that the notice was properly addressed and registered. 
 When the employer is a corporation, or a body of per- 
 sons incorporated, notice shall be served by delivering 
 the same at the office of such employer, or, if there is 
 more than one office, at any of its offices, or the notice 
 may be served by sending it by post in a registered letter 
 addressed to the office. The New York statute in the 
 main follows the English law. Notice, under the New 
 York law (sec. 2, p. 241), shall be served on the employer, 
 or, if there is more than one employer, upon one of such 
 employers, and may be served by delivering the same 
 to the employer, or by leaving it at the residence or 
 9 
 
130 The New Yokk Employees' Liability Act. 
 
 place of business of the person on whom it is to be 
 served. The notice can be served by mail by letter 
 (which need not be registered)^ addressed to the person 
 on whom it is to be served at his last known place of 
 residence or place of business. If served by letter, the 
 notice is deemed to have been served at the time any 
 letter containing the same would be delivered in the 
 ordinary course of post. Service can be had on a cor- 
 poration by delivering the notice at the office or prin- 
 cipal place of business of the corporation, or by sending 
 it by post to such address. In Hunt v. Dexter Sulphite 
 Pulp d Paper Co., 100 App. Div. 119, 91 Sup. 
 279, the question was raised whether service of 
 a typewritten notice was a sufficient " notice in 
 writing," as required by the act. The court held 
 the typewritten notice sufficient, saying, " Type- 
 writing has largely taken the place of handwriting and 
 may well be considered as handwriting. It would be too 
 strict a construction of the statute to hold this notice 
 invalid because in typewriting instead of handwriting." 
 A notice signed in the attorney's name by his sten- 
 ographer has also been held to be valid. ( Crreenstein v. 
 Chick, 187 Mass. 157; Dolan v. Alley, 153 Mass. 380- 
 382. ) It has been held in Massachusetts that the man- 
 ner in which the notice is sent or given is immaterial 
 if it be shown that the person entitled to notice actually 
 received it within the statutory period. ( Shea v. N. Y., 
 N. E. & H. B. Co., 173 Mass. 177.) 
 
 A somewhat contrary doctrine is laid down, however, 
 in Eealey v. George F. Blake Mfg. Co., 180 Mass. 270. 
 The defendant was a Jersey corporation and had exe- 
 cuted a power of attorney as required by Massachusetts 
 law, appointing the commissioner of corporations as 
 its attorney upon whom all lawful processes in any 
 
Service op Notice. 131 
 
 action or proceeding might be served. A notice of the 
 time, place and cause of plaintiff's injury was served 
 by plaintiff on this commissioner, who sent to the de- 
 fendant a complete copy of the notice within thirty days 
 after the happening of the accident. No other notice 
 was given and the court held that this was insufficient, 
 and that notice to the commissioner was not notice to 
 the corporation, notwithstanding the fact that the notice 
 was proper in form and the commissioner sent an exact 
 copy to the defendant. The court held that while this 
 notice could be given to the defendant wherever he 
 could be found, whether within or without the State, the 
 notice given by this commissioner was not given by him 
 as an agent of plaintiff or on plaintiff's hehalf, hutsimplj 
 as a public officer acting in the discharge of a public 
 duty. 
 
 " Since he was not in fact an agent of either party, 
 and did not act or intend to act as such, the plaintiff 
 cannot now, on the ground of attempted or intended 
 agency, ratify the act as his or hold the defendant as 
 though it were his act." ^* 
 
 The construction given to the Massachusetts law in 
 this case is far less liberal than has been given in quite 
 similar cases in New York, under statutes requiring 
 notice to municipalities in actions for negligence against 
 them and will probably not be followed in the construc- 
 tion of the New York Liability Act. (Shaw v. City of 
 New York, 83 App. Div. 212, 82 Supp. 44; Missano v. 
 The Mayor, 160 N. Y. 123; Sheehy v. City of New YOrk, 
 160 N. Y, 139.) 
 
 la. A notice signed " C. & T., ciently showa authority to sign 
 attorneys for A," purports to \ie it. Dolan v. Alley, 153 Mass. 
 signed in behalf of A, and suffl- 380. 
 
132 The New Yoek Employers' Liability Act. 
 
 In De Forge v. N. Y., N. H. & E. By. Co., 178 Mass. 
 59, the notice was given to the freight agent of the 
 defendant, who testified that he sent it to the defendant's 
 attorneys at New Haven in pursuance of general 
 printed instructions directing him to send such notices 
 to them, and that he had received such notices and so 
 disposed of them for five years. The court does not 
 determine whether this mode of service would, under 
 ordinary circumstances, be legal, but held that where 
 it appeared that this practice of giving notice in this 
 way had been going on for so long a time without any 
 objection being made, it might be found that defendant 
 had recognized and acquiesced in the practice. (Citing 
 McGabe v. Cambridge, 134 Mass. 484; Shea v. N. Y., 
 N. H. d H. Ry. Co., 173 Mass. 177.) 
 
 Sec. 40. Excuses for failtire to give notice. 
 
 The provisions limiting the time in which to give 
 notice are not strictly statutes of limitations but rather 
 constitute a condition imposed upon the enforcement 
 of a new remedy. ( Qrasso v. Holbrook, Cabot & Daly 
 Co., 102 App. Div. 49, 92 Sup. 474; Harris v. 
 Baltimore Machine d Elevator Works, 188 N. Y. 
 141 [see sec. 42, post] ; Gmaehle v. Rosenberg, 
 80 App. Div. 541, 80 Supp. 705; Johnson v. 
 Roach, 83 App. Div. 357, 82 Supp. 203.) The dis- 
 abilities provided by the New York and Massachusetts 
 acts which relieve the injured person or his representa- 
 tives from the necessity of furnishing the notice within 
 the time limit have received consideration in several 
 cases. The statute says that "if from physical or mental 
 incapacity it is impossible for the person injured to give 
 notice within the time provided ... he may give 
 the same within ten days after such incapacity is re- 
 
Excuses fob Failure to Notify. 133 
 
 moved." The burden is upon the plaintiff or his repre- 
 sentatives to show the disability or incapacity, and the 
 question is usually one for the jury. {Mitchell v. City 
 of Worcester, 129 Mass. 525; Ledmdge v. Hathaway, 
 170 Mass. 848.) The disability which will excuse the 
 failure to give notice under the Massachusetts cases 
 must be both physical and mental. If the employee is 
 of sufficient mental capacity to explain his injury and 
 its cause to another so that the notice could be given on 
 his behalf, the cases in that State hold that the em- 
 , ployee's failure to do so within the time limit is a bar. 
 (Gogan v. Burnham, 175 Mass. 391.) Under a highway 
 statute requiring a similar notice the court says : " It 
 has repeatedly been held that a plaintiff cannot take ad- 
 vantage of this last provision of the statute if his phy- 
 sical and mental capacity would enable him to procure 
 another person to give the notice in his behalf even 
 though he could not give it personally." {Saunders v. 
 City of Boston, 167 Mass. 595. ) If the plaintiff is con- 
 scious and mentally sound, but is confined in bed at 
 home or at a hospital, he must cause notice to be given 
 and his personal inability to give it is not an excuse.^ 
 These rulings of the Massachusetts courts on the 
 meaning of the words " physical or mental incapacity," 
 it is submitted, are unreasonable, not required by the 
 statute and not in accordance with the decisions which 
 hold that the statute is to be liberally interpreted in 
 favor of the injured employee. ( See sec. 2, supra. ) The 
 statute says : " If from physical or mental incapacity it 
 
 2. Cogan v. Burnham,, 175 Mass. 348; Lyons v. Cambridge, 
 
 Mass. 391; MoNulta v. City of \Z2 Mass. 5Zi; May v. Boston, \5Q 
 
 Cambridge, 130 Mass. 275; SoAim- Mass. 517; Mitchell v. Worcester, 
 
 ders V. City of Boston, 167 Mass. 129 Mass. 525. 
 595; Ledwidge v. Hathaway, 170 
 
134 The New York Employers' Liability Act. 
 
 is impossible for a person injured to give notice within 
 the time provided he may give the same within ten days 
 after such incapacity is removed." The construction 
 placed upon these words by the case just cited gives no 
 effect whatever to the word " physical " or the word 
 "or." The statute is construed as though it read 
 " physical and mental incapacity," and under this con- 
 struction both must co-exist to excuse the absence Of 
 notice. In nearly all of the cases cited below physical 
 incapacity existed of such a character as absolutely to 
 preclude plaintiff from personally giving notice, and 
 the only ground on which the failure to give notice was 
 held fatal was because notwithstanding his physical 
 helplessness plaintiff's mind was clear. Under the 
 ruling of the Massachusetts, cases the statute is 
 interpreted as though it read, " if from mental in- 
 capacity it is impossible for the person to give the 
 notice within the time provided in said section or to 
 authorize some one else to give the notice in his behalf." 
 It leaves out of consideration entirely the question 
 whether the injured employee knew anyone who would 
 consent to serve this notice in his behalf or suffered 
 from any inability to give it other than that caused by 
 mental incapacity. A man without friends who is 
 seriously injured and who remains in a conscious state 
 for sixty days though absolutely unable to deliver any 
 notice in person or to investigate the cause of his injury, 
 is absolutely precluded, under the Massachusetts cases, 
 from any right of redress under the statute. This rule 
 is a harsh and illiberal one, unjustified by the wording 
 of the statute itself and it is to be assumed it will not be 
 followed by the New York courts. (See Forsyth v. City of 
 Oswego, 114 App. Div. 616, and cases; Barry v. Village 
 
Defects in Notices., 135 
 
 of Port Jervis, 64 App. Div. 268, 93 App. Div. 269, af- 
 firmed 180 N. Y. 521 ; Williams v. Village of Port Ches- 
 ter, 72 App. Div. 505, 76 Supp. 631; same case, also, 97 
 App. Div. 84, affirmed, no opinion, 183 N. Y. 550. The 
 case last cited involves the consideration of a thirty day 
 statute of limitations for the presentation of claims 
 against a municipal corporation, which provided that 
 no action ,for injuries caused by defects in sidewalks 
 could be maintained without such previously given 
 notice. The court held that this statute, in so far as it 
 applies to a claim with respect to which the claimant 
 was so injured as to be unable to present it within 
 the period specified, is unreasonable and uncon- 
 stitutional, and that a presentation of the claim within 
 thirty days after the claimant had sufficiently recovered 
 from his injuries to enable him to make it would sup- 
 port his action. 
 
 Sec. 41. Defects in notice; statutory provisions. 
 
 The English act provides (sec. 7, p. 253) that a notice 
 required under the act shall not be deemed invalid by 
 reason of any defect or inaccuracy in it, unless the 
 judge who tries the action arising from the injury men- 
 tioned in the notice is of the opinion that the defendant 
 is prejudiced in his defense by such defects or inac- 
 curacies, and is further of the opinion that the defect or 
 inaccuracy was for the purpose of misleading. The 
 judge further has power under the English law to ex- 
 cuse the entire absence of notice in death cases if he is 
 of opinion that there is reasonable excuse for the want 
 of such notice. The Massachusetts law and the New 
 York statute provide that "no notice under the pro- 
 visions of this section shall be deemed to be invalid or 
 insufficient solely by reason of any inaccuracy in stating 
 
136 The New York Employees' Liability Act. 
 
 the time, place or cause of injury, if it be shown that 
 there was no intention to mislead, and that the party 
 entitled to notice was not, in fact, misled thereby." 
 
 The important difference between the wording of the 
 English statute and that of the Massachusetts and New 
 York statutes should be observed. The English statute 
 provides, as appears above, that the notice shall not be 
 deemed invalid by reason of any defect or inaccuracy 
 in it, etc. The Massachusetts and New York statutes 
 provide only for cases of inaccuracy and not for cases 
 in which there is not merely inaccuracy in the statement 
 of the time, place or cause, but an omission of one or 
 all of these requirements. 
 
 Under the English cases, therefore, the omission, of 
 one or more of the requirements may be excused unless 
 the judge is of the opinion that this omission has pre- 
 judiced the defendant, and, also, that the defect or inac- 
 curacy was intended for this purpose; see 8tone v. 
 Hyde, 9 Q. B. D. 76, in which the notice was contained 
 in a letter which omitted entirely a statement of the 
 cause of the injury; also Keene v. Milhaall Dock Co., 
 8 Q. B. D. 482, where there was an omission of the cause 
 of the injury. In Carter v. Drysdale, 12 Q. B. D. 91, 
 there was an omission of the date of the injury. In 
 Prevesi v. Gatti, T. L. R. (vol. 4), 487, the cause of the 
 injury and the address of the plaintiff were omitted 
 and the date of the injury was misstated. lii all these 
 cases the notices were held not to be fatally defective. 
 
 Under the Massachusetts and New York statutes 
 plaintiff can claim relief from errors but not from 
 omissions, by showingthat he had no intention to mislead 
 and that the defendant was not actually misled. Where 
 there is, for example, no statement whatever of the cause 
 of the injury, the omission is more than an inaccuracy 
 
Defects in Notices. 1ST 
 
 and the notice is fatally defective. ( Gardner v. Inhab- 
 itants of Waymouth, 155 Mass. 595; Fortin v. Inhab- 
 itants of Tjasthampton, 142 Mass. 486.) As will be 
 seen later the construction of notices is extremely lib- 
 eral, and the courts will go to great extremes in spelling 
 out a statement of the time, place or cause from the 
 language used rather than hold the notice a nullity. 
 
 Technical defects in notice of injuries are less avail- 
 able to defendants in Massachusetts than formerly by 
 reason of a recent amendment to the Liability Law, 
 which requires the defendant upon whom a defective 
 notice has been served, to notify the plaintiff, or the 
 person serving the defective notice, of the nature of the 
 defect, and without such a notice given within five 
 days, the defect is not available to the defendant on 
 trial. 
 
 " A defendant shall not avail himself in defense of 
 any omission to state in such notice the time, place or 
 cause of an injury or damage unless within five days 
 after receipt of a notice given within the time required 
 by law and by an authorized person, referring to the 
 injuries sustained and claiming damages therefor, the 
 person receiving such notice, or some person in his be- 
 half, notifies in writing the person injured, his executor 
 or administrator, or the person giving or serving such 
 notice in his behalf, that his notice is insuflScient, and 
 requests forthwith a written notice in compliance with 
 the law. If the person authorized to give such notice, 
 within five days after the receipt of such request, gives 
 a written notice complying with the law as to the time, 
 place and cause of the injury or damage, such notice 
 shall have the effect of an original notice and shall be 
 considered a part thereof." (Oh. 51, Laws of 1902,^ 
 sec. 22.) 
 
138 The New Yoek Employees' Liability Act. 
 
 Sec. 42. The giving of written notice a condition precedent 
 The notice given must be in writing. Actual knowledge 
 given defendant verbally of the time, place and cause of 
 the accident is insufficient. (Keene v. Millwall Dock 
 Co., 8 Q. B. D. 482; Ghisholm v. Manhattan Rij. Co., 101 
 Sup. 622, 116 A. D. 320.) The construction of this notice 
 of injury clause, which is adopted by the Massachusetts 
 and New York courts, is that the notice itself must be 
 given before the commencement of an action and is a 
 condition precedent to the maintenance of the action 
 itself, and the same rule has been followed in England. 
 {Gmaehle v. Rosenberg, 178 N. Y. 147; Rettagliata v. 
 Hay ward, 180 N. Y. 512; Chisholm v. Manhat- 
 tan Ry. Co., 116 A. D. 320, 101 Sup. 622; Hoehn v. 
 Lautz, 94 A. D. 74, 87 Sup. 921; Rosin v. Lidgerwood 
 Mfg. Co., 89 A. D. 245, 86 Sup. 49; Grasso v. Hoi- 
 hrooJc, etc., Contracting Co., 102 A. D. 49, 92 Sup. 
 474; Johnson v. Roach, 83 A. D. 351, 82 Sup. 
 203; Randall v. Eolbrook Contracting Co., 95 A. 
 D. 336, 88 Sup. 681; O'Neil v. Karr, 110 A. D. 571, 97 
 Sup. 148; Healey v. George F. Blake Mfg. Co., 180 Mass. 
 270; Foley v. Pettee Mach.. Co., 149 Mass. 294, 296; 
 Veginan v. Morse, 169 Mass. 142, at p. 146; Moyle v. 
 Jenkins, 8 Q. B. D. 116, 118; Keen v. Millwall Dock 
 Co., 8 Q. B. D. 482, 484.) In this respect the notice 
 required by the Employers' Liability Act is similar 
 to the well established rule adopted by New York 
 courts in notices to municipalities of personal in- 
 juries. It is to be presumed that the same purposes are 
 to be subserved by the notice required by the Liabil- 
 ity Law as are subserved by the notices required by 
 the various statutes incorporating municipalities, and 
 Tphich require notices of claim for injuries— that an in- 
 vestigation can be made by the defendant of the claim. 
 
The Notice a Condition Precedent. 139 
 
 {Miller v. Solvay Process Co., 109 App. Div. 135, 
 95 Sup. 1020.) The rule in actions against muni- 
 cipalities is well settled in New York, that where a 
 statute provided for notice of the time, place and cause 
 of injury, such notice is a pre-requisite to the commence- 
 ment of the action, and the failure to give such notice 
 is a bar to the maintenance of a suit for injuries.* 
 
 The commencement of an action within the statutory 
 period is not sufficient as notice under the act, even if 
 the complaint gives the time, place and cause of the 
 injury. The notice must be served before the complaint. 
 {Chishohn v. Manhattan By. Co., 116 App. Div. 320, 
 101 Supp. 622; Curry v. City of Buffalo, 135 N. Y. 366- 
 370 ; Veginan v. Morse, 160 Mass. 142. ) 
 
 In CMsholm v. Manhattan Ry. Co., 116 App. 
 Div. 320, 101 Supp. 622, a complaint had been 
 served which did not allege the giving of notice 
 and which did not allege the negligence of a 
 superintendent. This action was discontinued and 
 another action begun which alleged that notice under 
 the statute had been givem. On trial it was sought to 
 show that the first complaint, as served, was a notice 
 sufficient under the statute. It was held to be insuffi- 
 cient for that purpose. Ag the court says in Kennedy v. 
 City of Lawrence, 128 Mass. 318, cited with approval 
 in the CMsholm case (supra) : " No statement of the 
 facts of an injury can be regarded as notice under the 
 
 3. See Reining v. City of Buf- App. Div. 586, 37 Supp. 465; 
 
 falo, 102 N. Y. 308; Curry v. City White v. Mayor, etc., 15 App. Div. 
 
 of Buffalo, 135 N. Y. 366 ; Merz v. 442. The same rule has been held 
 
 City of Brooklyn, 33 St. Eep. 517, to apply to actions under the Lia- 
 
 128 N. Y. 617; Danoson v. City of bility Act. Johnson v. Roach, 
 
 Troy, 49 Hun, 322; Krall v. City 83 App. Div. 357, 82 Supp. 203; 
 
 of New York, 44 App. Div. 259, 60 Gmaehle v. Rosenberg, 80 App. 
 
 Supp. 661; Foley v. Mayor, etc., 1 Div. 541, 80 Supp. 705. 
 
140 The New York Employees' Liability Act. 
 
 statute unless it appears to have been made with the 
 intention of giving that notice." 
 
 Sec. 43. Notice to be pleaded. 
 
 The cases cited in the last section are all authorities 
 upon the proposition that a notice of the time, place and 
 cause of injury, being a condition precedent to the 
 maintenance of the action, must be pleaded in the com- 
 plaint. The well settled rule to this effect often de- 
 clared in actions against municipalities for injuries, is 
 equally applicable to actions under the statute. ( 8teffe 
 V. Old Colony R. R. Co,, 156 Mass. 262; see sec. 71.) 
 
 Sec. 44. Liberal construction allowed as to notice. 
 
 It has been held by the New York courts that notices 
 of this character relate to the remedy and not to the 
 right, and a reasonable construction has uniformly 
 been allowed in actions in which such notices are neces- 
 sary.* As the court says, in 8heehy v. City of New 
 York, 160 N. Y. 139, " While in an action like this the 
 statute must be substantially complied with, or the 
 plaintiff cannot recover, still, where an effort to comply 
 with it has been made and the notice served, reasonably 
 construed, is such as to accomplish the object of the 
 statute, it should, we think, be regarded as sufiflcient." 
 (See, also, Missano v. Mayor, 160 N. Y. 123; Blount v. 
 City of Troy, 110 App. Div. 609 ; Beyer v. City of North 
 Tonawanda, 183 N. Y. 338; Walden v. City of James- 
 town, 178 N. Y. 213 ; Shaw v. City of New York, 83 App. 
 Div. 212, 82 Supp. 44.) A defective notice, however, 
 
 4. Masters v. City of Troy, 50 Werner v. City of Rochester, 77 
 
 Hun, 485; Sullivan, v. City of Hun, 33; Stedman v. City of 
 
 Syracuse, 77 Hun, 440; Cross v. Rome, 88 Hun, 279. 
 City of Elmira, 86 Hun, 467; 
 
Liberal Oonsteuction for Notices. 141 
 
 can not be amended upon trial. {Kleyle v. City of 
 Oswego, 109 App. Div. 330.) A very liberal construc- 
 tion of the provisions requiring notice has been followed 
 by the English courts.^ 
 
 While, as appears at section 36, a notice to be valid 
 under the Massachusetts statutes must state the time, 
 place and cause of the accident, and an entire omission 
 to state one of these essentials is fa'tal to the action 
 under the statute; the courts are very liberal in con- 
 struing the language of notices so "that an inaccuracy 
 shall not be fatal. For example, in Carherry v. 
 Inhabitants of Sharon, 166 Mass. 32, the notice was 
 claimed to be defective for the absence of the statement 
 of the cause, and the court held that the words, 
 ^'thrown from her carriage caused by a defect in the 
 road," while inaccurate, was not fatally defective. 
 Other cases in which the courts have construed notice 
 as inaccurate but not fatally defective under the act or 
 under other statutes requiring notice of the time, place 
 and cause are collected in the note.® 
 
 Sec. 45. Question of intent to mislead one for the jury. 
 
 As has been seen under the English act, the question 
 of intent to mislead by insufiflcient notices and the effect 
 upon the defendant of misleading notices are to be de- 
 termined by the judge. The rulings of the English court 
 follow in this respect the strict wording of the statute 
 
 5. Carter v. Drysdale, 12 Q. B. 6. MeCabe v. Cambridge, 134 
 
 D. 91; Clarkson v. Musgrave, 9 Q. Mass. 484; Banley v. Everett, 132 
 
 B. D. 386 ; Keen v. Millwall Dock Mass. 441 ; Whiteman v. Oroveland, 
 
 ■Co., 8 Q. B. D. 482; Hearn v. Phil- 131 Mas?. 553; Fortin v. Inhab- 
 
 ips, T. L. K., vol. 1, 475 ; Previsi v. Hants of Easthampton, 142 Mass. 
 
 ■Gatti, T. L. E., vol. 4, 487; Fortin 486; Drisooll v. Fall Rvver, 163 
 
 1). Inhabitants of Easthampton, 142 Mass. 105, 39 N. E. 1003. 
 Mass. 486. 
 
142 The New Yoek Employees' Liability Act. 
 
 which requires the judge to pass upon such questions. 
 The Massachusetts courts have held that the question, 
 whether an inaccuracy in stating time, place and cause 
 of the injury was intended to mislead, and whether the 
 party entitled to notice was misled thereby, are ques- 
 tions of fact for the jury.^ The province of the court 
 seems to be simply in determining whether the paper 
 which is claimed to have been a notice can in any sense 
 be called such.* 
 
 It has been held that the burden of proof is upon the 
 plaintiff to establish not merely his own good faith in 
 sending an inaccurate notice, but also to show that it 
 did not mislead the defendant. (See Hughes v. Russell^ 
 104 App. Div. 144, 93 Sup. 307; Drommie v. 
 Hogan, 153 Mass. 29; Lif[in v. Inhabitants of 
 Beverly, 145 Mass. 549.) Where from the face 
 of the notice itself it is apparent that defend- 
 ant could not have been misled by it because the 
 notice itself has no tendency to mislead, the jury is 
 authorized to find the notice sufl&cient. (See Conner s 
 V. City of Lowell, 158 Mass. 336; Dolan v. Alley, 153 
 Mass. 380.) In determining whether the defendant has 
 been misled the facts and circumstances showing de- 
 fendant's knowledge of the details of the accident may 
 be proved to show that no actual notice was necessary 
 to acquaint him with the facts. In Drommie v. Hogan, 
 153 Mass. 29, the actual cause of the injury was a de- 
 fective condition of a ledger board which broke and 
 caused the staging on which plaintiff was at work to 
 fall. The notice given contained no reference to the 
 
 7. See Drommie v. Hogan, 153 terhury v. Oity of Boston, 141 
 Mass. 29; Beauregard v. Webh Mass. 215. 
 
 Oranite Co., 160 Mass. 201; Can- 8. Shea v. City of Lowell, \Zi 
 
 Mass. 187. 
 
Intent to Mislead foe Jury. 143^^ 
 
 ledger board, but stated that the injury was caused " by 
 reason of the defective or insufficient staging, and the 
 fall of the staging." The defendant contended that he 
 had been misled, and to meet this contention plaintiff 
 showed that after the accident defendant had come to 
 the place where it occurred and helped carry away the 
 plaintiff, and that at the time he did so the staging and 
 the ledger board were lying in a heap upon the ground. 
 This was held sufficient evidence to warrant a jury in 
 finding that the plaintiff had no intention to mislead 
 and that defendant was not misled. 
 
 Eeference should be had to the New York cases, cited 
 in section 44, which illustrate the liberality of the New 
 York courts in the construction of similar notices under 
 statutes calling for notice of the time, place and cause 
 of injuries in streets. 
 
 Sec. 46. Notice to indicate that claim is made for compen- 
 sation. 
 
 While there is nothing contained in the language of 
 the section expressly requiring the notice to state that 
 a claim for compensation is made, the notice must con- 
 tain something to indicate its purpose as the basis for 
 a claim for damages. " The liability of the em- 
 ployer under the common law and under the act 
 being different so far at least as his liability for 
 the negligence of his superintendent is concerned, the 
 notice in order to permit the bringing of an action under 
 the statute should be sufficient to apprise him that lia- 
 bility is claimed because of the statute and under its 
 provisions." (Chisholm v. Manhattan Ry., 101 Sup. 
 622, 116 A.D. 320; Driscoll v. Fall River, 163 Mass. 105; 
 Kennedy v. Laiorence, 128 Mass. 318. ) In Driscoll v. Fall 
 River, supra, the court says : " The notice is not to be 
 
144 The New York Employers' Liability Act. 
 
 construed with technical strictness, but enough should 
 appear in it to show that it is intended as a basis of a 
 claim on behalf of the person who brings the suit." The 
 amount claimed in compensation need not be stated 
 in the notice. (Reed v. City of New York, 97 N. Y. 
 621.) 
 
 Sec. 47. Notice need not state a cause of action. 
 
 It is not necessary that the notice should contain a 
 statement of the facts and circumstances which plaintiff 
 would be obliged to prove to make out a case in law for 
 negligence, nor need he allege that the injury was occa- 
 sioned by the negligence of any particular individual. 
 (See Werner v. City of Rochester, 11 Hun, 33.) As 
 stated in Canterbury v. Boston, 141 Mass. 215, notices 
 of this character are required not for the purpose of 
 setting out in writing the legal liability of the city or 
 town but for the purpose of calling the attention of the 
 proper authorities to the physical objects in the 
 highway, or to the physical condition of it, which caused 
 the injury, that they may make the necessary investiga- 
 tion. {Bailey v. Everett, 132 Mass. 441; Dalton v. 
 Ealem, 136 Mass. 278; Lynch v. Allyn, 160 Mass. 248.) 
 
 Sec. 48. What is a sufficient notice? 
 
 In Miller against Solvay Process Company, 109 App. 
 Div. 135, 95 Sup. 1020, the notice stated in 
 substance that the claimant was injured by reason 
 of the negligence, etc., of defendant, its agents, 
 servants and employees, in not providing compe- 
 tent servants in the work of unloading coal from 
 its cars, in not stationing guards or persons 
 to warn claimant of danger and in failing to properly 
 protect its employees while engaged in the performance 
 of their various duties. The notice stated that unless 
 
What is Sufficient Notice. 145 
 
 the matter was adjusted claimant would bring an action 
 against the company under the act and that the no- 
 tice was served in accordance therewith. The 
 court held the notice defective in several particulars. 
 It failed to sufficiently describe the place where the ac- 
 cident occurred, there being four or five places in the 
 yard where coal cars were unloaded; that the notice 
 did not state how the injury was received nor wherein 
 the defendant's agents, servants, etc., were negligent 
 in not providing competent servants, and that there was 
 no particular act of incompetency mentioned. The court 
 says : " The notice is too general and insufficient to fur- 
 nish any substantial assistance to the defendant in the 
 investigation of the claim either as to the place or cause 
 of the injury and therefore does not meet the require- 
 ments of the statute." 
 
 The court further found that the evidence adduced on 
 trial did not show that the injury was received at all in 
 accord with the claim of the notice. 
 
 In Hughes v. Russell, 104 App. Div. 144, 93 
 Sup. 307, the notice given was given in behalf of 
 " John " Hughes instead of Michael J. Hughes, 
 the plaintiff. It stated the cause of the injury 
 to be the defective condition of the stamping 
 press in that the whole machine was out of plumb. 
 There was no evidence tending to show that the accident 
 was due to such cause. The court says : " The insuffi- 
 ciency of the notice might have been obviated by proof 
 under the statute that there was no intention to mis- 
 lead and that the party entitled to the notice was not in 
 fact misled thereby, but the record contains no testimony 
 tending to establish either of these facts." 
 
 In Beauregard v. Webb Granite Co., 160 Mass. 201, 
 the notice described a defect in the ways, works and 
 10 
 
146 The New York Employers' Liability Act. 
 
 machinery, and charged negligence on the part of the 
 person entrusted with, and exercising superintendence, 
 and particularly state that deceased was killed " by a 
 stone being precipitated upon him from your derrick, 
 as a result of your negligence and the negligence of 
 some person for whose negligence you are liable." The 
 real cause of the death was that a stone fell upon the 
 deceased through negligence in raising it without 
 warning being given to him. It nvas held that the notice 
 was either sufficient notice, or, if insufficient, was not 
 fatally defective as there was no intention to mislead, 
 and that, in fact, the defendant was not misled by it. 
 In Lynch v. Allyn, 160 Mass. 248, the notice given set 
 forth the time, place and cause -tf the injury, stating the 
 cause to be " the falling of a bank of earth." The only 
 objection taken by the defendant was that the notice 
 did not refer to the defendant't} superintendent or to 
 his conduct. The negligence in the case was the 
 negligence of the superintendent. The court did not 
 think it was necessary that the notice should contain 
 a reference to the superintendent, and it was held that 
 the cause of the injury was properly stated. It was not 
 necessary for the plaintiff to state the cause of that 
 cause. ( Citing Whitman v. Groveland, 131 Mass. 553 ; 
 Donahue v. Old Colony R. R. Co., 153 Mass. 356. ) In 
 Donahue v. Old Colony R. R. Co., supra, the notice 
 is as follows : " The Old Colony Railroad Company is 
 hereby notified that on the 15th day of October, 1888, 
 when within 100 yards northerly from the railroad 
 station at Readville, Massachusetts, on that part of 
 said Old Colony Railroad Company, formerly known 
 as the Boston & Providence Railroad Company, I was 
 injured by my right leg being caught between a dump- 
 ing car and tender of an engine, I was at the time 
 
What is Sufficient Notice. 147 
 
 standing on the dumping car, which was the first car 
 of a train of cars to which said tender of said engine 
 was attached. Said injury was caused by reason of a 
 broken bar on the dumping car, which allowed the dolly 
 varden of the tender of the engine to run up against the 
 end of the dumping car, which caught and injured my 
 leg. This notice is given under the provisions of chapter 
 270 of the acts and resolves of Massachusetts of the year 
 1887, and of chapter 155 of the said acts of the year 
 1888." Held sufficient 
 
 In Brick v. Bosworth, 162 Mass. 334, a death case, 
 the notice stated that injury was received as follows: 
 " The cause of the death of my said husband was the 
 falling of a derrick upon him, the same being improp- 
 erly or insecurely fastened." This notice was held 
 sufficient to entitle the plaintiff to recover either on 
 the ground of the superintendent's negligence, or for 
 a defect in the ways, works and machinery. , 
 
 In Coughlan v. Cambridge, 166 Mass. 268, it was 
 held that a notice was not defective which alleged dif- 
 ferent causes of the same.accident, each being adequately 
 stated. 
 
148 The New York Employees' Liability Act. 
 
 CHAPTER V. 
 
 The Assumed Eisks op Employment. 
 
 Sec. 49. Assumed risks ordinarily not affected by liability 
 acts. 
 
 The decisions of the courts of the various States 
 in which liability acts, similar to the English act, are 
 in force are in accord on the proposition that these 
 statutes have not changed the common law rules upon 
 the doctrine of assumed risk.^ 
 
 In the O'Malley case, cited below, the court says: 
 " If the action were at common law it would be too 
 plain for argument that the plaintiff took the risk of 
 such accidents as that which happened." ..." But 
 it is contended that under the statute referred to the 
 rule is different. The statute does not attempt to take 
 away the right of the parties to make such contracts 
 as they choose which will establish their respective 
 rights and duties." ..." But it would be unrea- 
 sonable to attempt to require every one ever hiring 
 laborers to have the best place and best machinery 
 possible for carrying on his business. It would be an 
 
 1. See O'Maley v. South Boston 146 Mass. 261-267; Hale v. 
 Gaslight Co., 158 Mass. 135; Cheney, 169 Mass. 268; Rooney v. 
 Wood/ridge v. Washington Mills Cordage Co., 161 Mass. 153; Con- 
 Co., 160 Mass. 234; Cunningham nolly v. Bamilton Woolen Co., 
 V. Lynn, etc., 8tr. By. Co., 170 153 Mass. 156; McAuUffe v. Gall, 
 Mass. 298; Donahue v. Washlurn 180 Mass. 361; Ladd v. Brockton 
 £ Moen Mfg. Co., 169 Mass. 574; Street Railway Co., 180 Mass, 
 Ooodnow V. Walpole Emery Co., 454. 
 
Assumed Risk Rule and Liability Acts. 149 
 
 unwarranted construction of the statute which would 
 tend to defeat its object to hold that laborers are no 
 longer permitted to contract to take the risk of work- 
 ing where there are peculiar dangers from the arrange- 
 ment of the place and from the kind or quality of 
 machinery used. Nothing but the plainest expression 
 of intention on the part of the Legislature would war- 
 rant giving the statute such an interpretation." . . . 
 " We have no doubt that any one may contract to take 
 the obvious risks of danger from injury from defective 
 machinery as well since the enactment of this statute 
 as before." 
 
 In England some slight confusion exists in the cases 
 on the effect of the Employers' Liability Act of 1880 
 as to the defense that the risk of injury was assumed 
 by the employee. In the case of Wehlin v. Ballard, 17 
 Q. B. D. 122, the court was of the opinion that the 
 statute had affected the doctrine of assumed risk. In 
 construing the words in the first section of the act, 
 which state that the workman shall have the same rights 
 of compensation and remedies as if he had not been 
 a workman of^ nor in the service of the employer, nor 
 engaged in his work, the court says : " What is the 
 meaning of this? In our judgment it means that the 
 workman, when he sues his master under the provisions 
 of the act for any of the five matters designated in it, 
 shall be in the position of one of the public suing and 
 shall not be in the position of a servant theretofore 
 when he sued his master. In other words, that the 
 master shall have all the defenses he theretofore had 
 against any of the public suing him, but shall not have 
 any special defense that he theretofore had when sued 
 by a servant." 
 
 "What then is the result? It is this: that the 
 
150 The New Yoek Employees' Liability Act. 
 
 defense of contributory negligence is still left to the 
 employer, but the defense of common employment and 
 also the defense that the servant had contracted to take 
 upon himself the known risks attendant upon the en- 
 gagement are taken away from him, when sued by a 
 workman under the act." 
 
 This decision, so far as its ruling upon the defenses 
 of assumed risk is concerned, has not been followed, 
 and the later decisions of the English courts are in 
 accordance with those of Massachusetts. ( See Yarmouth 
 V. France, 19 Q. B. D. 647; Thomas v. Quartermaine, 
 18 Q. B. D. 685.) Similar rulings to those of the 
 English and Massachusetts courts are to be found in 
 Alabama. {Birmingham Ry. v. Allen, 99 Ala. 359.) 
 
 Sec. 50. Statutory modifications of assumed risk in general. 
 So far as a careful examination of the statutes has 
 revealed, there are no State statutes in force in the 
 United States, other than the New York statute, at- 
 tempting to deal with the doctrine of assumed risk, or 
 to modify that rule. There is, however, a provision 
 somewhat similar to the New York statute contained in " 
 the Constitution of the State of Mississippi, which is 
 given below in a note.^ 
 
 2. Constitution, art. 7, sec. 193. right to control and direct the ser- 
 
 " Every employee of any railroad vices of the party injured, and, 
 
 corporation shall have the same also, when the injury results from 
 
 rights and remedies for any In- the negligence of a fellow servant 
 
 jury suffered by him from the act engaged in another department of 
 
 or omission of said corporation or labor from that of the party in- 
 
 its employees, as are allowed to jured, or by a fellow servant on 
 
 other persons, not employees, another train of cars or one en- 
 
 where the injury results from the gaged about a different piece of 
 
 negligence of a superior agent or work. Knowledge by an employee 
 
 officer, or of a person having the injured of the defect or unsafe 
 
Necessary Risks Assumed. 151 
 
 A similar provision^ to that in the Mississippi Con- 
 stitution is contained in the Constitution of South 
 Carolina.* 
 
 A provision somewhat similar to section 3 of the 
 New York law is contained in the Revised Statutes of 
 Ontario, chapter 160, section 6, which contains the fol- 
 lowing : " Provided, however, that such workman shall 
 not, by reason only of his continuing in the employment 
 of the employer with knowledge of the defect, negligence, 
 act or omission which caused his injury, be deemed to 
 have voluntarily incurred the risk of injury." 
 
 Apart from the statutes quoted above, the New York 
 law is the first attempt to deal by statute with the 
 ■doctrine of assumed risk. 
 
 Sec. 51. Necessary risks always assumed. 
 
 The employee, by entering upon or continuing in a 
 given employment, takes the employment at common 
 law subject to the usual risks inherent in the business 
 itself, and which are necessary elements of the work to 
 be done. This is presumed to be part of his contract 
 of employment, and he can have no claim against his 
 employer for injuries resulting therefrom, for the em- 
 ployer owes him no duty of obviating such danger, 
 neither can the employee be heard to say that he did 
 not so contract. His action founded on an injury caused 
 by a necessary risk or danger must fail on either one of 
 two theories: 1st, that the law presumes that he had 
 
 character or condition of any of charge of dangerous or unsafe 
 
 the machinery, ways or appliances cars or engines voluntarily oper- 
 
 ■shall he no defense to an action ated iy them." 
 for injuries caused thereby, except 3. Art. 9, sec. 15, Constitution 
 
 as to conductors or engineers in, of South Carolina. 
 
152 The New York Employees' Liability Act. 
 
 contracted to take the risk of an injury resulting from 
 such cause, or, 2d, that the employer has violated no 
 legal duty in failing to obviate the necessary dangers 
 of the occupation. When the injury results from a 
 necessary risk of the employment the defendant is usu- 
 ally entitled to a nonsuit* 
 
 Necessary risks have been indifferently described in 
 the books as " risks of the service " and " ordinary 
 risks," and if the language of some of the decisions 
 were taken strictly, these risks are the only ones assumed 
 by the employee under existing law. " It may, we think, 
 be laid down as a general rule that the dangers con- 
 nected with the business, which are unavoidable after 
 the exercise by the master of proper care and precaution 
 in guarding against them, are risks incident to the em- 
 ployment and are assumed by those who consent to 
 accept employment under such circumstances. Those 
 dangers which are known and can be mitigated or 
 avoided by the exercise of reasonable care and precaution 
 on the part of those carrying on the business, and 
 injuries which happen through neglect to exercise such 
 care are not incident to the business, and the master is 
 generally liable for dangers accruing therefrom." 
 {McGovcrn v. Central Termont R. R., 123 N. Y. 287.) 
 As the court says in Pantzar v. Tilly Foster Mining Co., 
 99 N. Y. 368 : " The rule that the servant takes the 
 risk of the service presupposes that the master had 
 performed the duties of caution, care and vigilance 
 which the law casts upon him. It is these risks alona 
 
 4. Bannigan v. L. £ H. B. R. velope Co., 101 N. Y. 520; Dedraf 
 
 Co., 157 N. Y. 244; Arnold v. D. v. N. T. 0. <£ H. R. R. Co., 76 
 
 £ E. R. Co., 125 N. Y. 15; Sisco v. N. Y. 125; Bohn v. Eavemeyer, 
 
 L. £ B. R. Co., 145 N. Y. 296; 114 N. Y. 296. 
 Biceeney v. Berlin £ Jones En- 
 
Unnbcbssaey Risks at Common Law. 153- 
 
 that cannot be obviated by a reasonable measure of pre- 
 caution by the master that the servant assumes. (See^ 
 also, Benzing v. Steinway, 101 N. Y. 552; Rickey v. 
 Taafe, 105 N. Y. 26. 
 
 These quotations, however, are not accurate state- 
 ments of the law under the more, recent cases, and 
 under these cases, as will be seen, the employee assumes- 
 at common law not only the necessary risks of a danger- 
 ous employment, biit such other obvious risks as may 
 be created either by his master's negligence or by a vio- 
 lation of the statute.® 
 
 Sec. 52. Continuance in employment and unnecessary 
 risks ; at common law. 
 Where the defect or negligence is one known to the 
 employee, and its dangerous possibilities are appreci- 
 ated by him, and he still continues at his work, the fact 
 of continuance is generally used as a defense by the em- 
 ployer in one of three forms: 1st, that the employee 
 who knows and appreciates such a danger and con- 
 tinues at work without any change in the dangerous 
 conditions of his employment, is thereby guilty of con- 
 tributory negligence; 2d, that by continuing at his em- 
 ployment with knowledge and appreciation of the risk 
 of danger therefrom, the employee impliedly contracts 
 with the employer to assume all risk of injury there- 
 from, and by reason of such implied contract cannot 
 claim compensation for his injuries from his negligent 
 employer for his breach of duty; 3d, that the employer 
 
 5. Knisley v. Pratt, 148 N: Y. 450; Sherlock v. Sherlock, 66 App, 
 
 372; Freeman v. Paper Mill Go., Div. 328, 72 Supp. 712; Bums v. 
 
 70 Hun, 530, 24 Supp. 403 ; 'Nichols Chemical Oo., 65 App. Div. 
 
 affirmed without opinion 142 N. 424, 72 Supp. 919. 
 Y. 639; Crown v. Orr, 140 N. Y. 
 
154 The New York Employees' Liability Act. 
 
 owes no legal duty of care to an employee who con- 
 tinues in the course of his employment, knowing that 
 such a danger exists therein — a defense which is 
 usually expressed in the maxim "volenti fit injuria." 
 These three grounds of defense are usually interposed 
 together, and while there is a logical difference between 
 the defenses of contributory negligence, the maxim, and 
 assumed risk, they are usually considered by the courts 
 as practically one defense expressed in three different 
 forms, and the terms have been used loosely and almost 
 interchangeably. The difference between the terms 
 " assumed risks " and " contributory negligence " has 
 been recently considered by the Court of Appeals, in 
 Dowd V. N. Y., 0. & W. R. Co., 170 N. Y. 459, and the 
 distinction between them pointed out. 
 
 No useful purpose would be served at this time in 
 attempting to lay down what should be a true rule in 
 the application of these three defenses, as the scope of 
 this chapter is confined to a consideration of the legal 
 effect of continuance in employment by an employee 
 with knowledge of a defect negligently created by his 
 employer. The courts in all jurisdictions are agreed 
 that where an employee voluntarily consents to the con- 
 tinuance of a defect and voluntarily agrees to take his 
 chances of being injured thereby, he can have no just 
 claim for compensation against his employer for such 
 an injury. The courts differ, however, in determining 
 the effect of continuance in employment with full 
 appreciation of the danger, upon the question, whether 
 the employee actually did voluntarily agree to take his 
 chances of being injured. In some jurisdictions con- 
 tinuance with knowledge of an imminent danger, in- 
 volving serious bodily injury, constitutes, as a matter 
 of law, contributory negligence. (See Pittsburgh d W. 
 
Unnecessary Eisks at Common Law. 155 
 
 B. B. Co, V. Esteneniard, 52 Ohio, 43 ; Bush v. Mo. Fac. 
 B. Co., 36 Kans. 129 ;Leary v. B. & A. B. Co., 139 Mass. 
 580; Wheeler v. Berry, 95 Micli. 250; Beese v. Clark, 
 146 Pa. 465; Marean v. N. Y., 8. & W. B. Co., 167 Pa. 
 220; Crutchficld v. Bichmond D. B. Co., 76 N. 0. 320; 
 Illinois Paper Go. v. Albert, 49 111. App. 363 ; Highland 
 Ave. & B. B. Co. v. Walters, 91 Ala. 442; Western & A. 
 B. Co. V. Bishop, 50 Ga. 465.) In other jurisdictions, 
 continuance with adequate knowledge of the possibility 
 of the danger, is equivalent, as a matter of law, to the 
 assumption of risk. ( See McAulliffe v. Gall, 180 Mass. 
 361; Ladd v. Brockton St. By. Co., 180 Mass. 454; Doh- 
 hins V. Lang, 181 Mass. 397; Langley v. Wheelock, 181 
 Mass. 471 ; Eenney v. Hingham Cordage Co., 168 Mass. 
 278; Whelton v. West End Street Bailway Co., 172 
 Mass. 555; Fuller v. N. Y., N. H. & H. B. B. Co., 175 
 Mass. 424; Le Moine v. Aldrich, 111 Mass. 89; Lampson 
 V. Am. Axe & Tool Co., Ill Mass. 144; Kelley v. Calu- 
 met Woolen Co., Ill Mass. 128.) In Massachusetts, as 
 will be seen by the cases just cited, both rules seem to be 
 applied, and not much distinction seems to be made 
 between contributory negligence and assumption of 
 risk, in the application of these terms to an employee 
 who continues at work with knowledge of the possibili- 
 ties of injury to which he has been exposed by his em- 
 ployer's negligence {Sylvia v. Wampanoag Mills, 111 
 Mass. 194), a non-suit or directed verdict being ordered 
 sometimes on an application of one theory and some- 
 times on the other. {Barry v. N. Y. Biscuit Co., Ill 
 Mass. 449.) The English courts, under the modern 
 cases, follow neither of these rules. The continuance 
 by the employee at his work with knowledge of the 
 danger is a consideration which may or may not be con- 
 •clusive in determining whether he has voluntarily 
 
156 The New Yoek Employers' Liability Act. 
 
 assumed the risk, and the rule as laid down by the Eng- 
 lish cases will be considered at length in a subsequent 
 section. 
 
 Sec. 53. The New York common law rule on assumed risk. 
 
 The employee in New York assumes at common law 
 not merely those risks necessary and incident to the 
 business in which he is employed, but, ordinarilj-, as- 
 sumes also such obvious risks as become known to him 
 in the course of his employment if after such knowledge 
 he continues in the same general place of employment." 
 
 "A servant when he enters into the relation assumes 
 not only all the risks incident to such employment, but 
 all dangers which are obvious and apparent. The law 
 imposes upon him the duty of self-protection and al- 
 ways assumes that this instinct, so deeply rooted in 
 human nature, will guard him against all risks and 
 dangers incident to the employment arising in the 
 course of the business of which he has knowledge or the 
 means of knowledge. If he voluntarily enters into or 
 continues in the service without objection or complaint, 
 having knowledge or the means of knowing the dangers 
 involved, he is deemed to assume the risk and to waive 
 any claim for damages against the master in case of 
 personal injury to him." {Crown v. Orr, 140 N. Y. 
 450; DoM?d v. N. Y., 0. & W. R. Co., 170 N. Y. 459.) 
 
 The ordinary common law rule, moreover, in New 
 York is that where the danger is so clearly apparent 
 that the knowledge and appreciation of it by the em- 
 ployee is also certain, there is no question for the jury 
 
 6. McQuigan v. D., L. & W. R. 15; Kaare v. Troy S. & I. Works 
 
 Co., 122 N. y. 618; Bart v. 139 N. Y. 369; Gibson v. Erie R 
 
 Vaumhurg, 123 N. Y. 641; Arnold Co., 63 N. Y. 449. 
 V. D. & E. Canal Co., 125 N. Y. 
 
N. Y. Common Law Rule for Assumed Risks. 157 
 
 as to whether the employee assumed the risk voluntarily 
 or not. As the Court of Appeals says, in Kennedy v. 
 Manhattan B. B. Co., 145 N. Y. 95, " We have carefully 
 read over all the testimony in the case, and we have 
 come to the conclusion that the evidence showed, beyond 
 any doubt, that the deceased was fully aware of the gen- 
 eral condition of this yard at the time when he went on 
 duty on the night in question. He had been there daily 
 for more than three weeks, and had been a watchman 
 at times and at times a car cleaner. He was necessarily 
 familiar with the locality; with the fact that the yard 
 was not complete; with the fact that the carpenters 
 were at work daily, and with the fact that the planking 
 did not entirely cover the yard. Knowing these facts he 
 must be held to have assumed the risk which accom- 
 panied such a situation, and that he did know these 
 facts we think there is no possible room for doubt. It 
 was not a question to be submitted to the jury." (See, 
 also, Kaare v. Troy 8. & I. Co., 139 N. Y. 369.)'^ 
 
 Where the circumstances of the employment are such 
 that the condition of the place of employment is ob- 
 vious, but the danger to life or limb involved in that 
 condition is not obvious, or to determine which might 
 
 7. Appel V. Buffalo, etc., R. (reversing an order setting aside a 
 
 W. Co., Ill N. Y. 550 (in which nonsuit) ; also, Wright v. N. Y. O. 
 
 a refusal to nonsuit where risk R. R. Co., 25 N. Y. 566 ; Powers v. 
 
 was obvious was held error) ; N.Y.£ L. E. R. Co., 98 N. Y. 274; 
 
 DeForrest v. Jewett, 88 N. Y. Marsh v. Checkering, 101 N. Y. 
 
 264; Gibson v. Erie R. R. Co., 63 396; Sweeney v. Berlin £ Jones En- 
 
 N. Y. 449; Arnold v. D. & E. Canal velope Co., 101 N. Y. 520; Shaw v. 
 
 Co., 125 N. Y. 15 (in which a Sheldon, 103 N. Y. 667; Hickey v. 
 
 nonsuit was affirmed) ; Williams Taafe, 105 N. Y. 26; Buckley v. &, 
 
 V. D., L. TH W. R. R. Co., 116 £ P. Manufacturing Co., 113 N. Y. 
 
 N. Y. '628 (in which a re- 540; Mull v. Curti/ie Bros. Co., Ti 
 
 fusal to nonsuit was held error) ; App. Div. 561, 77 Supp. 813. 
 Knisley v. Pratt, 148 N. Y. 372 
 
158 The New York Employees' Liability Act. 
 
 require special skill or judgment not possessed by the 
 ordinary employee to determine, the situation would be 
 different and the assumption of the risk by the servant 
 is then a question of fact for the jury. This is also true 
 where the servant has been too short a time in the em- 
 ployment from which the injury occurred to have had 
 opportunity to acquaint himself with the risk to which 
 he is exposed. The knowledge by the servant, which 
 constitutes an assumption of risk on his part, is not 
 merely of what appears to him to be the situation or 
 condition of his place of employment, but of the possi- 
 bility of danger and the consequences which might re- 
 sult from it. The leading case on this doctrine is 
 Davidson v. Cornell, 132 N. Y. 228, a case in which the 
 injuries resulted from the fall of some girders insuflSi- 
 ciently held together. The court there said that the de- 
 fect in the structure was apparent. The court held, 
 however, that " where it may require skill and judgment 
 not possessed by ordinary observers or by the servant to 
 give knowledge of hazards which may be apprehended 
 therefrom, he does not assume those hazards." (See, 
 also, Kain v. Smith, 89 N. Y. 375; Smith v. King, 74 
 App. Div. 1; Allison v. Long Clove Flat Rock Co., 75 
 App. Div. 267 ; Sullivan v. Thorndike Co., 175 Mass. 41 ; 
 Flint V. Kelly, 180 Mass. 181.) The New York rule, as 
 stated in these cases, is the same as that laid down in 
 the leading English cases of Clarke v. Holmes, 7 H. and 
 N. Exchequer Eep. 937; Thomas v. Quartermaine, 18 Q. 
 B. t). 685. As Byles, J., says, in Clarke v. Holmes, 
 supra, "a servant knowing the facts may be utterly 
 ignocant of the risks," and as Lord Esher says, in 
 Thomas v. Quartermaine, " mere knowledge may not ~be 
 a conclusive defense. There may be a perception of the 
 existence of the danger without comprehension of the 
 
Promises to Eepair. 159' 
 
 risk, as where the workman is of imperfect intelligence^ 
 and although he knows the danger remains imperfectly 
 informed of its nature or extent." 
 
 The statement contained in the quotation given 
 above, from Crown v. Orr, 140 N. Y. 450, in which the 
 absence of objection or complaint by the employee is 
 suggested as one of the grounds for denying the relief, 
 and for assuming that the employee has consented to 
 the risk, is misleading. Such a complaint or objection 
 avails nothing to the servant who continues at work 
 with knowledge of the danger, and the courts both in 
 Massachusetts and New York hold that it is no value to 
 the employee to prove actual complaint made by him or 
 objection to the continuance of the danger involved in 
 his master's negligence.^ 
 
 Sec. 54. Promise to repair as affecting assumption of risk. 
 There has been until recently much confusion among, 
 the New York cases as to the effect at common law of an 
 express promise made by or on behalf of the employer 
 to repair a negligent defect complained of by the em- 
 ployee. The general rule which has been recognized for 
 years in most jurisdictions is, that "where the master 
 has expressly promised to repair the defect, the servant 
 can recover for an injury caused thereby within such a 
 period of time after the promise as it would be reason- 
 able to allow for its performance, and, as we think, for 
 
 8. Lamson v. American Axe & Mass. 316, 322; Westcoit v. N. 
 
 Tool Co., 177 Mass. 144; Oarrigan Y. d N. E. R. Go., 153 Mass. 460. 
 
 V. Washhurn & Moen Mamifaotur- New York cases to the same 
 
 ing Co., 170 Mass. 79,- 81 ; Louis v. eflFeot are Sweeney v. Berlin, d 
 
 v. T. d N. E. R. Co., 153 Mass. Jones En/velope Co., 101 N. Y. 520; 
 
 73 ; Lea/ry v. B. d A. R. R. Co., 139 Gibson v. Erie R. Co., 63 N. Y. 
 
 Mass. 580-587; Haley v. Case, 142 499; Sannigan v. Smith, 28 App.. 
 
 Div. 176, 50 Supp. 845. 
 
160 The New York Employees' Liability Act. 
 
 injuries suffered within any period wliich would not 
 preclude all reasonable expectation that the promise 
 might be kept."^ 
 
 The quotation just cited finds support in one of the 
 older leading New York cases, Laning v. N. Y. Cen. Ry. 
 Co., 49 N. Y. 521, which held that a promise to dis- 
 charge a drunken, incompetent employee, if he did not 
 do better, was sufficient to make contributory negli- 
 gence by continuing at work a question of fact for 
 the jury in an action brought by an employee injured 
 from the negligence of such intoxicated employee. The 
 court says: 
 
 " But in this case the question whether the plaintiff 
 was so negligent as to be contributory to the injury 
 which he received was a question for the jury, for Lan- 
 ing had testified that Colby had said to him that if 
 Westman did not do better he would have to discharge 
 him. 
 
 " It has been held that there is a formal distinction 
 between the case of a servant who knowingly enters 
 into a contract to work on defective machinery, and 
 that of one, who, on a temporary defect arising, is in- 
 
 9. Bough V. Railroad Co., 100 etc., R. R. Co., 76 Penn. St. 389; 
 
 U. S. 225. (The quotation above Counsel v. Hall, 145 Mass. 468; 
 
 is cited by the court from Sher- Tfor. Pac. R. R. Co. v. Bahcock, 
 
 man & Eedfield on Negligence, sec. 154 U. S. 190; Kane v. Northern 
 
 96, 3d ed.; sec. 372, 5th ed.) Cewt. iS. iS. Co., 128 U. S. 91 ; also, 
 
 Bwift & Co. V. O'Neil, 187 111. Cooley on Torts, 2d ed., 559-560; 
 
 337 ; Illinois Bteel Co. v. Mann, Sherman & Redfleld on Negligence, 
 
 170 111. 200; Ferries v. Berlin 5th ed., 372; Bailey's "Master's 
 
 Machine Works, 90 Wis. 541; Liability to Servant," 207; see, 
 
 Snowherg v. Wellson Paper Co., also, the exhaustive note collating 
 
 43 Minn. 532; Tyberb v. N. Pac. the cases appended to Illinois 
 
 R. R. Co., 39 Minn. 15; Manu- Steel Go. v. Mann, 170 111. 200, in 
 
 facturing Co. v. Morrissey, 40 40 L. E. A. 781. 
 Ohio, 148; Patterson v. Pittsburg, 
 
Promises to Kepaie^ Etc. 161 
 
 duced by the master after the defect has been brought 
 to the knowledge of the latter, to continue to perform 
 his services under promise that the defect should be 
 remedied. (See Holmes v. Clark, 10 Wend. 405.) 
 Knowledge in such a case is not of itself, in point of law, 
 an answer to the action." 
 
 To the same effect is Healy v. Byan, 25 Wk. Dig. 23, 
 afllrmed, without opinion, 116 N. Y. 657; Stevens v. 
 Hudson Valley Knitting Co., 69 Hun, 375. 
 
 A series of decisions contrary to this rule, based 
 mainly upon a somewhat anomalous and entirely illogi- 
 cal decision. Marsh v. Chickering, 101 N. Y. 400, have 
 been decided in the Appellate Division. ( See McCarthy 
 V. Washburn, 42 App. Div. 252, 58 Supp. 1125; Mull v. 
 Curtice Bros. Co., 74 App. Div. 561, 77 Supp. 813 ; Han- 
 nigan v. Smith, 28 App. Div. 176, 50 Supp. 845; 
 Ohanhein v. ArhucMe, 80 App. Div. 465; Spencer v. 
 Worthington, 44 App. Div. 496, 60 Supp. 873; Rice v. 
 Eureka Paper Co., 70 App. Div. 339, 75 Supp. 49.) 
 
 The authority, however, of these cases has been 
 largely, if not entirely, taken away by a reversal of the 
 last cited case by the Court of Appeals {Bice v. Eureka 
 Paper Co., 174 N. Y. 385), which attempts to distin- 
 guish the cases last cited. The plaintiff in this case was 
 working on a machine which needed a belt shifter to 
 make it safe. He complained and " on the Saturday 
 night preceding the Wednesday on which he was in- 
 jured, he told the defendant's treasurer that the ma- 
 chine ought to be provided with a shifter and that he 
 would quit if one was not put on. He says that the 
 treasurer then told him the mill would be shut down for 
 repairs the fore part of the following week and while 
 shut down they would put on a shaft or tightener, and 
 that relying upon this promise he continued work until 
 11 
 
162 The New Yoek Employers' Liability act. 
 
 lie was injured." He was injured on Wednesday of the 
 next week before the mill was shut down or a shifter put 
 on. The court definitely decided two things: (1) The 
 promise to repair was in effect at the time of the acci- 
 dent; (2) it adopts the general rule "under which a 
 servant may be relieved from an assumed risk of his 
 employment by the master's promise to remove the 
 danger which creates the risk," and applies it to this 
 case as justifying a recovery by plaintiff. The court 
 considers at some length a distinction which has been 
 noticed in a number of cases between a general promise 
 to repair and a promise to repair at a definite future 
 time. The court below had held that under a promise 
 to take effect in the future, the risk remained that of the 
 servant until the time for the fulfillment of the promise, 
 when and for a reasonable time thereafter, the risk be- 
 came the master's. The authorities support this doc- 
 trine in some jurisdictions. {Standard Oil Co. v. Hel- 
 mick, 148 Ind. 457 ; Indiana, etc., Rd. Co. v. Watson, 114 
 Ind. 120; McFarlan Carriage Co. v. Potter (Ind. 
 App), 52 N. E. 209; Southern Pacific Co. v. Leash, 2 
 Texas Civ. App. 68. See, however, Andrecsik v. N. Y. 
 Tube Co. (1906) (N. J.) L. R. A., N. S., 1906, No. 4.) 
 The Court of Appeals does not take a definite position 
 in regard to this distinction but leaves it open for future 
 decision, saying: "At this point the question arises, 
 however, whether the rule should be adopted without 
 qualification, or as limited by some of the courts, and 
 particularly by the Appellate Division, from whose 
 order this appeal is taken. Since, under our construc- 
 tion of the master's promise herein, it may fairly be 
 said to fall within the general rule without qualifica- 
 tion; and in view of the fact that under the so-called 
 Employers' Liability Act (ch. 600, L. of 1902) now 
 
Promises to Eepaxe^ Etc. 163 
 
 in force, the rule above referred to may in the future 
 present a question of purely academic interest, we do 
 not now decide the general question whether it would 
 be wiser to adopt the rule in its entirety or as modified 
 by the limitation referred to." 
 
 The Court of Appeals apparently holds that when a 
 promise to repair is made, such as that shown in the 
 Rice case, that is, one " capable of the construction that 
 it was to be fulfilled within a reasonable time " then 
 " during that reasonable time covered by defendant's 
 promise, the risk theretofore voluntarily accepted by 
 the plaintiff was assumed by the defendant " as a mat- 
 ter of law. The decision is not clear on this point, but 
 it has been so construed. {Citrone v. O'Bourke En- 
 gineering & Construction Co., 99 Supp. 241 ; Tannheuser 
 V. Uptigrove, 100 Supp. 245 ; Schwarts v. B. N. Wilson 
 Mfg. Co., 100 Supp. 1054.) This conclusion while logi- 
 cally unobjectionable, is contrary to the decisions in 
 other jurisdictions which hold as in the old Laning case 
 (49 N. Y. 521), that the general effect of a promise to 
 repair is to make a question of fact for the jury, 
 whether the employee, by continuing at work, assumed 
 the risk or was guilty of contributory negligence.^" The 
 Citrone case, supra, decides the question which the 
 Court of Appeals did not decide in the Bice case, and 
 which as quotation of that decision given above would 
 indicate, was left open to future decision. In the Cit- 
 rone case the promise was to be performed at a definite 
 future time, and before that time had arrived plaintiff 
 
 10. Counsel v. Hall, 146 Mass. Sough v. Railroad Co., 100 U. S. 
 
 470; District of Colunibia v. Mo- 213; Smith v. E. W. Backus Lum- 
 
 Elligott, 117 U. S. 621; Schlite v. her Co., 64 Minn. 447; Riee v. 
 
 Pahst Brewing Co., 57 Minn. 303 ; Eureka Paper Co., 174 N. Y. 385. 
 
164 The New York Employers' Liability Act. 
 
 was injured. It holds that the master assumed the risk 
 from the making of the promise as a matter of law. The 
 decision is based solely on the authority of the Rice 
 case. With all due deference to the very learned justice 
 who writes the opinion, we think the Bice case will not 
 bear the construction given it. It is in accord, however, 
 with a well-considered case in New Jersey {Andrecsik 
 V. 'New Jersey Tube Go. (1906), L. E. A., New Series, 
 1906, No. 4.) In that case the promise was made by the 
 superintendent at 10 a. m. to repair at noon. The re- 
 pair was not made at noon, and plaintiff was injured at 
 3 p. m. The court held that the promise was definite 
 and specific as to the time of performance and that there 
 was no question for the jury, saying : "A promise made 
 by the master, acted upon by the servant, to repair a 
 specific defect at a definite time thereafter, creates an 
 assumption of risk by the master. This assumption of 
 risk began forthwith upon the making of the promise 
 and continued thereafter and throughout the period 
 fixed for the repair, but this undertaking of the master 
 terminates and his liability thereunder ceases at the end 
 of that period. The termination of the master's under- 
 taking and the termination of the period fixed for the 
 repair are identical. In such case it would be error to 
 submit to the jury any question relating thereto which 
 would enable the jury to find in confiict with the terms 
 of the contract that the responsibility on the part of the 
 master still existed after the expiration of the period 
 during which the master had agreed to undertake it." 
 
 It is well settled that if the risk of injury from the 
 defect itself in a given case is so great that no one but a 
 reckless man would continue at work under the condi- 
 
Assurance of Safety by Master. 1G5 
 
 tions existing at the time, the defendant nevertheless is 
 entitled to a verdict. ^^ 
 
 The promise to repair to be effective must be made by 
 a person authorized to make a contract in defendant's 
 behalf,' has been decided in Hempstock v. Lackawanna 
 Iron Co., 98 App. Div. 332, holding that a promise to fix 
 a brace made by a foreman in charge of the construction 
 of a scaffolding to an employee under him, was not bind- 
 ing upon the employer. (See, also, Biola v. N. Y. Cen- 
 tral, etc., Ry. Co., 97 App. Div. 252; see, however, 
 Larkin v. Washington Mills Co., 45 App. Div. 6.) 
 
 Sec. 55. Assurance of safety, express instructions, etc., and 
 assumption of risk. 
 Where a servant is apprehensive of the possible 
 danger concerning whichj however, his mind is in 
 doubt, and makes inquiry of his master and is assured 
 that the condition concerning which he is apprehensive 
 is safe, the continuance then in employment will not 
 constitute an assumption of risk as a matter of law. 
 An application of this rule can be made, however, only 
 where the condition concerning which the inquiry is 
 made is one of which an employee has imperfect knowl- 
 edge, and which is not obviously dangerous.^^ The 
 brakeman is justified, where the condition is not obvi- 
 ously dangerous, in relying on the superior knowledge 
 
 11. Kane v. Iforthern Cent. Bj/. Sehaff, 28 Hun, 314; Eicholg v. 
 
 Co., 128 U. S. 91 ; Ind. & St. L. Niagara Falls Hy&raulie P. & Mfg. 
 
 Ry. Co. V. Watson, 114 Ind. 20; Co., 68 App. Div. 441, 73 Supp. 
 
 Clarke v. EoVmes, 7 H. & N. 937; 842; Chackoick v. Brewster, 15 
 
 Bromfield v. Hughes, 128 Penn. Supp. 598; Floettl v. Third Ave. 
 
 194 ; District of CoVwmbia v. Mo- Ry. Co., 10 App. Div. 308, 41 Supp. 
 
 ElUgott, 117 U. S. 621. 792; Tremllay v. Mapes Reeve Con- 
 
 IZ. Siedentop v. Buse, 21 App. struction Co., 169 Mass. 284; Dean 
 
 Div. 592, 47 Supp. 809; Daly v. i?. Smith, 169 Mass. 569; MoKee 
 
166 The New York Employers' Liability Act. 
 
 and experience of his superintendent (Low v. Wake- 
 fieldj, 185 Mass. 214) ; see also, Murphy v. N. Y., N. B. & 
 E. Ry. Co., 187 Mass. 18; Oregory v. American' Thread 
 Company, 187 Mass. 239 ; Di Stefeno v. PeeksJcill Light- 
 ing & Ry. Co., 107 A. D. 293. 
 
 An employee cannot rely on his master's peremptory 
 order or his express or implied assurance of safety 
 when the danger itself is apparent to the employee and 
 the master can have no superior knowledge,^ ^ but where 
 the superintendent having been warned by the em- 
 ployee of the latter's danger in his work, said, " You go 
 back to work and I'll take care of you," the employee 
 can recover when the superintendent thereafter failed 
 to keep his promise. (McKlnnon v. Ritter-Conly Co., 
 186 Mass. 155. ) A servant of tender years or low men- 
 tality expressly instructed as to dangerous duty may 
 rely upon the master's presumed superior knowledge 
 in the premises and perform the duty according to such 
 instructions without being held to be deprived of his 
 right of action against the master under the doctrine of 
 assuming an obvious risk. {Eoren v. National Conduit 
 Co., 82 A. D. 527 ; Owens v. Ernst, 1 Misc. 388, affd. 142 
 N. Y. 661.) 
 
 V. Tourtellotte, 167 Mass. 69; 566; Marsh v. Chickering, 101 N. 
 O'Brien v. Nute Hallett Co., 177 Y. 396; also, Hawley v. Northern 
 Mass. 422; Denning v. Gould, 157 Cent. Ry. Co., 82 N. Y. 370; 
 Mass. 563; Helfenstein v. Medart, O'Connell v. Clark, 22 App. Div. 
 136 Mo. 575; Chicago Edison Co. *66. 48 Supp. 74; Lowery v. Lake 
 V. Eudsof,, 66 111. App. 639; Haas Shore, etc., Ry. Co., 13 Misc. 641; 
 V. Batch, 12 U. S. App. 534 (6 C. 8 Supp. 1089; Tanner v. N. Y., 
 C. A. 201) ; Bradbury V. Ooodwin, etc., R. R. Co., 180 Mass. 572; 
 108 Ind. 286. Meunier v. Chemical Paper Co., 180 
 13. See PerscAfce «. Hencfcen, 44 Mass. 109; Sullivan v. Simplex 
 Supp. 265; Date v. N. Y. Glucose Electric Co., 178 Mass. 35; Mo- 
 Co., 104 A. D. 207; Graves v. Clusky v. Garfield d Proctor Goal 
 Brewer, 4 A. D. 327, 38 N. Y. Supp. Co., 180 Mass. 115. 
 
Assumption of Eisk; Burden of Pboof. 167 
 
 Sec. 56. Assumption of risk ; burden of proof. 
 
 A very important question relating to the doctrine 
 of assumed risk is whether the burden is upon plaintiff 
 of showing that he had not assumed the risk of injury, 
 or upon the defendant to show that plaintiff had done 
 so. This question has been considered by the Court of 
 Appeals in a very important recent case. {Dowd v. N. 
 Y., Out. d Western By. Co., 170 N. Y. 459), which holds 
 that the burden of proof is upon the defendant to show 
 that the plaintiff had assumed the risk of injury. This 
 was an action brought by an administrator whose in- 
 testate had been killed by a negligent practice of de- 
 fendants in " kicking " cars. The intestate had been 
 at work for defendant about six weeks before his death. 
 There was no evidence showing that the decedent was 
 ever in such a position as necessarily to have seen cars 
 kicked on the track where repairers were at work. The 
 court says: 
 
 " If the burden of proof was on the plaintiff to show 
 affirmatively the absence of knowledge on the part of 
 her intestate, it may be that the evidence was insuffi- 
 cient for the purpose. If, however, the burden of proof in 
 this regard is upon the defendant the finding of the 
 jury should be sustained because the evidence did not 
 conclusively establish the fact in accordance with this 
 theory. . . . Whether the fact that a known or 
 obvious risk is proved by one party or the other is 
 immaterial, provided it is proved at all, but the question 
 now before us is upon whom rests the burden of proof 
 in this respect. If the plaintiff knows the danger, under 
 ordinary circumstances he waives it, but is the waiver 
 a defense to be alleged and proved by the defendant, or 
 only the fact of contributory negligence, the absence of 
 which is a part of plaintiff's case?" 
 
168 The New York Employees' Liability Act. 
 
 The court holds, after considering the logical differ- 
 ence between contributory negligence and assumed risk, 
 and defining those terms, that " the burden of showing 
 that a servant assumed the risk of obvious danger rests 
 upon the master and hence we cannot say, as a matter 
 of law, that the jury, in the case before us, was com- 
 pelled to find that the plaintiff's intestate knew or 
 should have known of the practice of ' kicking ' cars 
 on the track where car repairers were at work. If he 
 did not know of the practice he did not waive the 
 danger." 
 
 This case is the first authoritative decision in New 
 York on this important point. The rule has been applied 
 to the act and the burden of proof as to assumed risk 
 is upon defendant {Hunt v. Dexter Sulphite, etc., Co., 
 100 App. Div. 119, 91 Supp. 279; Freemont v. 
 Boston & M. Ry. Co., Ill App. Div. 831, 98 Sup. 
 179.) Subsequent decisions have intimated, though not 
 definitely decided, that the defence of assumed risk must 
 now be pleaded specially, and is not available under the 
 usual general denial and plea of contributory negligence. 
 In Scheir v. Quirin, 77 App. Div. 624, the Appellate Di- 
 vision, Fourth Department, uses the following language : 
 
 " The answer itself does not set forth the defense of 
 assumption of risk by Scheir. (Dowd v. Ry. Co., 170 
 N. Y. 459. ) The facts, however, all came out upon the 
 trial without any objection, and the question of a defect 
 in the answer was not raised. Had it been, an oppor- 
 tunity would probably have been given to amend the 
 answer upon such terms as would have been proper. 
 We think it is too late upon this appeal to raise this 
 objection." (KilMn v. N. Y. Cen., etc., Ry. Co., 76 App. 
 Div. 529 ; Overhaugh v. Wilber, 106 A. D. 283. ) 
 
 The employee not only assumes as a matter of law 
 
N. Y. Common Law on " Statutory Risks." 1Q9^ 
 
 the defects which he actually knows, but he also assumes 
 the risk of injury from defects which he ought to have 
 known or could have known by the use of reasonable 
 care.^* 
 
 Sec. 57. New York common law rule on " statutory risks." 
 The employee in New York, with an exception which 
 
 is considered in the next section, assumes at common 
 law not merely those risks mentioned above and created 
 by his master's ordinary negligence, but by continuance 
 in the employment he assumes the risk of injury from 
 a violation by the employer of any statute which may 
 be passed to provide greater safety for the employee in 
 the course of his employment. (See Knisley v. Pratt ^ 
 148 N. Y. 372; De Young v. Irving, 5 App. Div. 499, 
 38 Supp. 1089; E. 8. Higgins Carpet Co. v. O'Keefe, 
 79 Fed. Rep. 810; White v. Witteman Lithographic Co., 
 131 N. Y. 631; Graves v. Brewer, 4 App. Div. 327, 38 
 Supp. 566.) In the leading case on this subject, 
 Knisley v. Pratt, 148 N. Y. 372, the employee, a young 
 woman, was injured because of the failure of the de- 
 fendant to comply with the mandatory provisions 
 of the Labor Law (ch. 15 of L. of 1897, sec. 81) 
 requiring cog-wheels to be guarded. The Court of Ap- 
 peals held that by continuing in the employment with 
 knowledge of the failure of her employer to comply 
 with the statute she waived all right to claim com- 
 pensation for injuries resulting therefrom, and that she 
 was properly non-suited by the trial court. The court 
 Bays: 
 
 " In order to sustain the judgment in favor of the 
 
 14. WilUams v. D., L. & W. 550; Gibson v. Erie Ry. Co., 63- 
 Ry. Co., 116 N. Y.. 626; Appel v. N, Y. 449; Powers v. Same, 98 N. 
 B. & N. Y. P. B. Co., Ill N. Y. Y. 274. 
 
170 The New Yokk Employers' Liability Act. 
 
 plaintiff it is necessary to hold that where the statute 
 imposes a duty upon the employer, performance of 
 which will afford greater protection to the employee, it 
 is not possible for the latter to waive the protection of 
 the statute under the common law doctrine of obvious 
 risks. We regard this as a new and startling doctrine 
 calculated to establish a measure of liability unknown 
 to the common law and which is contrary to the decisions 
 of Massachusetts and England under similar statutes." 
 
 The question of public policy involved received very 
 little consideration from the court. Notwithstanding 
 the statement of the court quoted above, the doctrine 
 that public policy will not permit an employer to escape 
 his statutory obligation to provide for the safety of his 
 employees under any such theory of assumed risks is 
 neither new nor startling nor contrary to the English 
 decisions. Knisley v. Pratt, supra, is itself contrary to 
 the English doctrine and to the rule laid down in many 
 jurisdictions in the United States, and has been crit- 
 icised and not followed in many other courts.^^ 
 
 In England the case of Baddesley v. Lord Granville, 
 9 Q. B. D. 435, lays down a rule precisely contrary to 
 the doctrine of Knisletj v. Pratt. The action was 
 brought for the death of a miner, caused by a violation 
 
 15. Narramore v. C. G. G. & Co. v. Gilbert, 107 111. 354; 
 
 St. L. Ry. Co., 96 Fed. Rep. 298; Bluedorn v. Mo. Pac. R. R. Co., 
 
 Greenlee v. Southern Ry. Co., 30 108 Mo. 439; also, Litchfield 
 
 Southeastern Rep. (N. C.) 115; Coal Go. v. Taylor, 81 111. 590; 
 
 also, Boyd v. Brazil Block Coal Wesley Coal Go. v. Taylor, 84 
 
 Co., 50 N. E. Rep. 368 (Ind.); 111. 126. The Narramore case, 
 
 Durant v. Mining Co., 97 Mo. supra, considers and disapproves 
 
 62; Distr., etc., R. R. Co. v. of the New York decision of 
 
 Moore, 152 Ind. 350; East St. Knisley v. Pratt; see, also, 
 
 Louis Ry. Go. v. Eggman, 170 Simpson v. N. T. Rubber Co., 80 
 
 111. 538; III. Gent. R. R. Hun, 415. 
 
Assumption of Eisk by Minors. 171 
 
 of the Coal Mines Kegulation Act, which requires that 
 a banksman be kept at the mouth of coal pits while 
 miners are going up and down the shaft. The court 
 held that the fact that the deceased knew that no banks- 
 man was employed by defendant and yet continued at 
 work at the mine did not constitute a defense. Says 
 Baron Wills : " There should be no encouragement 
 given to the making of an agreement between A and 
 B; that B shall be at liberty to break the law which 
 has been passed for the protection of A. If the sup- 
 posed agreement between the deceased and the defend- 
 ant, in consequence of which the principle of 'volenti 
 non fit injuria ' is sought to be applied, comes to this, 
 that the master employs the servant on the terms that 
 the latter shall waive the breach by the master of 
 an obligation imposed upon him by statute, and shall 
 connive at his disregard of the statutory obligation im- 
 posed upon- him for the benefit of others as well as 
 himself " . . . " such an agreement would be in 
 violation of public policy and ought not to be lis- 
 tened to." 
 
 Sec. 58. Statutory risks; assumption by minors. 
 
 A recent case, establishing a new principle as to the 
 liability of employers to minor employees, has been 
 decided by the Court of Appeals in Marino v. Lehmaier, 
 173 N. Y. 530. It creates an important modification 
 of the Knisley v. Pratt doctrine commented upon in 
 the last section. In this case an infant of thirteen years 
 was injured while working for defendant as a feeder 
 of a printing press, which he was required to clean 
 every night. While engaged in cleaning the press his 
 fingers were caught between the cog-wheels and cut 
 off. The machine was not in motion at the time he 
 
1<2 The New Yoek Employees' Liability Act. 
 
 commenced to clean it> and the court finds that the 
 evidence is not clear as to the precise manner in which 
 the machine was started. On receiving the injury the 
 boy fainted and was unable to state whether or not 
 he had previously taken hold of the fly wheel and in 
 so doing started the motion of the machine. There is 
 apparently no evidence to show that the machine itself 
 was a defective one or as to the precise way in which 
 the accident happened. The Labor Law, however (L. 
 of 1897, ch. 415, sec. 70), provides: "A child under 
 the age of fourteen years shall not be employed in any 
 factory in this State. A child between the ages of four- 
 teen and sixteen years shall not be so employed unless 
 a certificate executed by the health officer be filed in the 
 office of the employer." As this law prohibited defend- 
 ant from employing a child of this age, the court held 
 that the employment is in and . of itself evidence of 
 negligence sufficient to send the case to the jury on the 
 ground that the case was one in which the accident could 
 not have happened but for the employment. The court 
 further held that a child under the age specified by the 
 statute — fourteen years — does not possess the judgment, 
 discretion, care and caution necessary for engagement 
 in such a dangerous avocation, and, therefore, is not, 
 as a matter of law, chargeable either with contributory 
 negligence or with having assumed the risks of the em- 
 ployment. Two opinions are written in this case, one 
 by Justice Haight and the other by Judge Parkee^ 
 which agree in effect. Judge Haight says: 
 
 "It has been said of the last century that it was 
 the age of invention. Machines had been devised and 
 constructed with which very many of the articles used 
 by mankind were manufactured. Numerous factories 
 had been established throughout the country filled with 
 
Assumption of Risk by Minors. 173 
 
 machines, many of which were easily operated, and the 
 practice of employing boys and girls in their operation 
 had become extensive, with the result that injuries were 
 of frequent occurrence. We think it is very evident 
 that these reasons induced the Legislature to establish 
 definitely the age limit under which children should not 
 be employed in factories, and, to our minds, the statute 
 in effect declares that a child under the age specified 
 presumably does not possess the judgment, discretion, 
 care and caution necessary for the engagement in such 
 a dangerous avocation, and is, therefore, not, as a matter 
 of law, chargeable with contributory negligence or with 
 having assumed the risks of the employment in such 
 occupation." 
 
 He concludes that under the evidence a question of 
 fact was presented for the jury; that the violation of 
 the statute by defendant was evidence of negligence, 
 and that if the jury found that the plaintifE was not 
 chargeable with contributory negligence, the defendant 
 was certainly liable, as well as liable for the penalty 
 provided by the statute. There is apparently no evi- 
 dence on Ijhe question of the absence of contributory 
 negligence by this little child, but this point receives 
 no consideration by the court in the prevailing opinions. 
 
 That the decision lays down a very vague rule of lia- 
 bility must be admitted. The principle upon which the 
 questions of negligence, contributory negligence and as- 
 sumption of risk are to be considered by the jury is far 
 from clear. The criticism of the case contained in Lee 
 V. Sterling Silk Mfg. Co., 47 Misc. 182, is a very cogent 
 one. It is a public misfortune that the Appellate Di- 
 vision in reversing this last-mentioned decision was 
 forced to reverse its conclusion that the injured child 
 illegally employed on machinery was entitled under the 
 
174 The New Yoek Employees' Liability act. 
 
 Marino case to a directed verdict and an assessment of 
 damages. Decisions construing and following the Ma- 
 rino case have held that the effect of this decision is that 
 hereafter in cases involving violation of the Factory Act 
 in the forbidden employment of minor children, the em- 
 ployment itself is " some," but not conclusive evidence 
 of negligence on the employer's part {Lee v. Sterling 
 Silk Mfg. Co., 101 Sup. 78), and the question of assump- 
 tion of risk by the injured child and of contributory 
 negligence on its part is to go to the jury. (See Regling 
 V. Lehmaier, 98 Sup. 642; Qallenlcamp v. Garvin Ma- 
 chine Co., 91 A. D. 141 ; Sitts v. Waiontha Knitting Co., 
 (Ltd.), 94 A. D. 38; Rahn v. Standard Optical Co., 110 
 A. D. 501; Dragatti v. PhmJcett, 99 Sup. 361.) The 
 burden of proof is on plaintiff, where the illegal em- 
 ployment alleged is that of a child between 14 and 16 
 years of age to show that no employment certificate has 
 been issued authorizing the employment of the child, 
 when the particular work at which the child was hurt has 
 not been forbidden by law. ( Sitts v. Waiontha Knitting 
 Co., 94 A. D. 38.) The Court of Appeals has not yet 
 taken the position of the English courts as to the re- 
 quirements of public policy in cases involving the viola- 
 tion by an employer of a remedial statute passed for 
 the greater protection of his employees. It is, however, 
 a step in that direction, and will materially assist prac- 
 tical enforcement of these provisions of the Labor Law. 
 
 Sec. 59. The assumed risk rule in England. 
 
 A somewhat extended examination of the common 
 law rule on the subject of assumed risk in England is 
 advisable owing to the fact that the purpose of the New 
 York Employers' Liability Act is to engraft upon the 
 
English Assumed Eisk Eule. 175 
 
 law of that State the common law rule on assumed risk- 
 as applied by English courts. 
 
 As will be seen by an examination of the English, 
 cases, the question whether the employee has agreed to 
 take his chances of being injured by a defect which 
 exists by his employer's negligence, is a question of fact 
 to be determined by the jury upon the consideration of 
 all the circumstances in the case. The character of th& 
 defect or negligence, the actions of the parties, the 
 fact that the employee has complained or has failed to 
 complain of the defect, the wages paid to the employee 
 in comparison with wages ordinarily received by em- 
 ployees in the same general kind of work where such 
 unnecessary dangers do not exist, the nature of the- 
 danger itself, are all elements to be considered. Ade- 
 quate knowledge by the employee of the danger inherent 
 in a defective condition standing alone is not in itself, 
 under all circumstances, a complete defense even if the 
 employee continues thereafter at his work in the same 
 general course of employment. There may, un- 
 doubtedly, be cases in which knowledge of the danger,, 
 coupled with continuance in the employment, is suffi- 
 cient to show the voluntary encountering of the risk. 
 This, however, is not true in all cases, and the ordinary 
 rule as laid down by the English courts is that mere 
 knowledge by the workman of the risk involved is not 
 sufficient to deprive him of the right to recover. There 
 must be a thorough comprehension on his part of the 
 danger and a voluntary undertaking by him of that risk 
 and danger. {Brooke v. Ramsden, 63 L. T. & S. 287, 
 55 J. P. 262. ) There must be an assent on the part of 
 the workman to accept the risk with a full appreciation 
 of its extent, to bring him within the maxim. Plaintiff" 
 is entitled to recover unless the circumstances are such 
 
176 The New Yoek Employees' Liability Act. 
 
 as to warrant the jury in coming to the conclusion that 
 the plaintiff freely, voluntarily, and with full knowledge 
 of the nature and extent of the risk he ran, impliedly 
 agreed to incur it.^® 
 
 The evolution of the English law on assumed risks 
 and upon the effect of continuance in employment may 
 perhaps best be understood by a consideration of the 
 three leading English cases on the subject. 
 
 Sec. 60. Same ; Thomas v. Quartermaine. 
 
 In Thvmas v. Quartermaine, 18 Q. B. D. 685, the 
 plaintiff, a brewery worker, sued to recover damages 
 under the Liability Act of 1880 for injuries received 
 from a fall into a cooling vat used by defendants in 
 their brewery, the claim being that the vat should have 
 been fenced, and that the injuries were occasioned by 
 the absence of fencing. It appeared that a boiling vat 
 and a cooling vat were placed in the same room in the 
 brewery; a passage, which was in one part only three 
 feet wide, ran between these two vats, the rim of the 
 cooling vat rising sixteen inches above the passage. 
 The plaintiff, who was employed in this room, went 
 along the passage in order to get from under the boiling 
 vat a board which was used as a lid. As this lid stuck, 
 plaintiff gave an extra pull and it came away suddenly, 
 and the plaintiff", falling back into the cooling vat, was 
 severely scalded. There was no statute shown requir- 
 ing any fencing upon such vats. Plaintiff had been 
 employed for a long time at this place and was thor- 
 
 16. Amos V. Duffy, 71 L. R. 21; Metal Co., 2 Q. B. D. 338; Yar- 
 
 Osborne v. London d Southicestern mouth v. France, L. R., 19 Q. B. D. 
 
 Ry. Co., 21 Q. B. D. 221; Thrussell 647, 657; Thomas v. Quartermaine, 
 
 V. Handyside, 20 Q. B. D. 359; Will- 18 Q. B. D. 685. 
 iams V. Birmingham Battery <£ 
 
Thomas v. Quartermaine. 177 
 
 oughly familiar with the situation. On the trial before 
 the County Court the judge held that there was evidence 
 of a defect in the condition of the works at defendants' 
 brewery, there being no sufflcient fence to the cooling 
 vat. He found that the condition of the vat was known 
 to both plaintiff and defendant; that the plaintiff had 
 not been guilty of contributory negligence, and he gave 
 judgment for the plaintiff. The divisional court set 
 aside this judgment and directed a judgment for the 
 defendant, and the plaintiff appealed to the Court of 
 Appeal. It was held by the Court of Appeal that there 
 was no evidence of negligence arising from a breach of 
 duty on the part of the defendant towards plaintiff, and 
 owing to the fact that plaintiff had assumed the risk 
 that he was not entitled to recover. The appeal was 
 accordingly dismissed and no new trial ordered. A por- 
 tion of the court's attention was occupied with the con- 
 sideration of the effect of the English statute of 1880 
 upon the defense of "volenti non fit injuria" which 
 need not be considered at this point. The court disap- 
 proved of the ruling in Weblin v. Ballard, 17 Q. B. D. 
 122, which held that the defense of assumed risk had 
 been taken away by the statute. The leading opinion is 
 by BowEN, L. J., who, upon the question of the effect of 
 continuance in employment upon the assumption of 
 risk, says : " In the absence of any further act of omis- 
 sion or commission by the occupier of the premises or 
 his servants, or in disregard of statutory provisions or 
 of individual rights, it can not properly be said that 
 there has been upon his part any breach of duty 
 towards the person who, knowing and appreciating 
 the danger and risks, elects voluntarily to encounter 
 them. I employ a builder to mend the broken slates 
 upon my roof, and he tumbles off. Have I been guilty 
 12' 
 
178 The New Yokk Employees' Liability Act. 
 
 of any negligence or breach of duty towards him? Was 
 I bound to erect a parapet around my roof before I had 
 my slate mended? In the case now before us, the negli- 
 gence relied on by the plaintiff is that a vat in the room 
 in which he worked was left without railing. Let us 
 suppose that the defendant, impressed with the danger, 
 had actually sent for a builder to put one up, and the 
 builder had fallen in while executing the work. Would 
 the defendant have been guilty of a breach of duty to- 
 wards the builder? The duty of an occupier of premises, 
 which have an element of danger upon them, reaches its 
 vanishing point in the case of those who are cognizant 
 of the danger and voluntarily run the risk. . . . 
 Where the danger is one incident to a perfectly lawful 
 use of his own premises, neither contrary to statute nor 
 common law, where the danger is visible and the risk 
 appreciated, and where the injured person, knowing and 
 appreciating both risk and danger, voluntarily encoun- 
 ters them, there is in the absence of further acts of omis- 
 sion or commission no evidence of negligence on the 
 part of the occupier at all. Knowledge is not a con- 
 clusive defense in itself, hut when it is a knowledge 
 under circumstances that leave no inference open hut 
 one, vis. : that the risk has heen voluntarily encountered, 
 the defense seems to me complete." After commenting 
 upon the confusion of the English law, between con- 
 tributorj' negligence and assumed risk as defenses, the 
 court says : " The Employers' Liability Act of 1880 
 makes precision on this point necessary and renders it 
 important to remember, quite apart from the relation of 
 master and servant, and independent altogether of it, 
 one man cannot sue another in respect to a danger or a 
 risk not unlawful in itself that was visibly apparent 
 and voluntarily encountered by the injured person. The 
 
Thomas v. Quaeteemainb. 179 
 
 county judge, in the case now under appeal, while nega- 
 tiving contributory negligence, has found the issue of 
 knowledge against the plaintiff. In what sense must 
 this finding be read, having regard to the undisputed 
 facts? Knowledge, as we have seen, is not conclusive 
 where it is not consistent with the facts that from its 
 imperfect character or otherwise the entire risk, though 
 in one sense known, was not voluntarily encountered, 
 but here, on the plain facts of the case, knowledge on 
 the plaintiff's part can mean only one thing. For many 
 months, the plaintiff, a man of full intelligence, had 
 seen this vat, known all about it, appreciated its danger 
 ■ — elected to continue working near it. It seems to me 
 that legal language has no meaning unless it were held 
 that knowledge such as this amounts to voluntary en- 
 counter of the risk." The language used by Bowen, 
 L. J., resembles very closely the language used in those 
 courts in this country which hold that continuance in 
 employment with knowledge of a defect or danger con- 
 stitute an assumption of risk. It is to be observed, 
 moreover, that the question of assumption of risk is 
 passed upon by the court as though it were a question of 
 law, and no new trial was ordered by the Court of Ap- 
 peal. The facts in Thomas v. Quartermaine are some- 
 what meagre. Subsequent opinions in other cases have 
 not followed the decision of Judge Bowen, and, while 
 the case has never been distinctly overruled, it has been 
 distinguished and not followed on this point now under 
 consideration. 
 
 One of the cases in which Thomas v. Quartermaine 
 has been considered and its application been restricted, 
 occurred in the following year; that case is Yarmouth 
 V. France, decided in the Queen's Bench in 1887 (see 
 19 Q. B. D. 647.) 
 
180 The New Yokk Employees' Liability Act. 
 
 Sec. 6i. Same; Yarmouth v. France. 
 
 In this case the plaintiff was in the employ of the 
 defendant, who was a warehouseman in London, to un- 
 load and deliver goods. In his work he drove a horse 
 belonging to the defendant, who was put under plain- 
 tiff's control by defendant's stable foreman. The plain- 
 ,tiff found that the horse was vicious and altogether 
 dangerous and unfit to be driven, and he repeatedly 
 complained of it to the stable foreman, who had the 
 general management and control of the defendant's 
 horses, telling him that he objected to driving so unsafe 
 an animal. The foreman's answer was " Go on ; you 
 must keep driving," adding, " If you meet with an acci- 
 dent we shall have to stand responsibility for that." 
 Some three months after plaintiff began to drive the 
 horse, the horse kicked him and broke one of his legs. 
 The county judge held that plaintiff was a " workman " 
 and that a kicking horse was a " defect " in defendant's 
 plant within the meaning of the act, but he further held, 
 on the authority of Thomas v. Quartermaine, that the 
 plaintiff continued to drive the horse after he had be- 
 come aware of its vicious nature, and that he must, 
 therefore, be considered to have assented to take upon 
 himself the attending risk, and he accordingly gave 
 judgment for the defendant. On appeal before the 
 divisional court this judgment was reversed. The lead- 
 ing opinion in the case was written by Lord Esheb, who 
 sat in Thomas v. Quartermaine and wrote a dissenting 
 opinion to the judgment of the court in that case. After 
 reciting the facts given above, he says : " The judge of 
 the City of London Court did that which, I believe, many 
 county court judges have done since the decision of the 
 Court of Appeal in Thomas v. Quartermaine. The 
 moment it was proved before him that the plaintiff 
 
Yarmouth v. Fbance. 181 
 
 knew the horse to be vicious but continued to drive him, 
 the judge said it was useless to enquire further, for that 
 alone disentitled him to recover, upon an application 
 of what is called the maxim of ' volenti non fit injuria.' " 
 ..." We are called upon now to say whether that is 
 the true effect of the decision." ..." Does the 
 maxim of ' volenti non fit injuria ' go to this length 
 that the mere fact of the workman, knowing that a thing 
 is dangerous and yet using it, is conclusive to show that 
 he voluntarily incurs the risk? The answer to that 
 question, so far as this court is concerned, depends upon 
 whether Thomas v. Quartermaine has so decided. Tak- 
 ing the whole of that judgment together, it seems to me 
 to amount to this : that mere knowledge of danger will 
 not do ; there must be an assent on the part of the work- 
 man to accept the risk with a full appreciation of its 
 extent to bring a workman within the maxim of ' volenti 
 non fit injuria/ If so, that is a question of fact. Here 
 the judge of the court below has come to the conclusion 
 that the moment it appeared that the plaintiff knew and 
 appreciated the danger and did not at once quit the de- 
 fendant's employ he came within the maxim, and was, 
 therefore, in the authority of Thomas v. Quartermaine, 
 disentitled to recover. He did not bring his mind to 
 bear upon the motive which induced the plaintiff to act 
 as he did — whether he relied upon the foreman's state- 
 ment that the employer would be responsible in case of 
 accident or whether he was influenced by fear of being 
 thrown out of employment if he failed to perform the 
 foreman's orders. All that was for the jury." In this 
 judgment Lindley, L. J., concurred. 
 
 This judgment certainly does not follow that of 
 Thomas v. Quartermaine and limits the application of 
 the rule laid down by Bowen, L. J., in that case most 
 
182 The New York Employees' Liability Act. 
 
 materially. This is made quite clear in the dissenting 
 opinion of Lopes, 0. J. (Citing Woodley v. Metropoli- 
 tan District Ry. Co., 2 Exch. Div. 384 ; Griffiths v. Lon- 
 don & St. Katharine Docks Co., 13 Q. B. D. 260.) 
 
 The decision in Yarmouth v. France, however, as has 
 been observed, was by the divisional court, subordinate 
 to and bound by the decision of the Court of Appeal in 
 Thomas v. Quartermaine. The question, however, which 
 is considered in the Yarmouth case receives later fur- 
 ther attention from the House of Lords on an appeal 
 from the Court of Appeal, and its reasoning is sustained 
 by the " law lords " in the case of Smith v. Baker, A. C. 
 (1891), p. 325. 
 
 Sec. 62. The rule in Smith v. Baker. 
 
 This is the most important case in English law on 
 the doctrine of assumed risk, and its facts and the rul- 
 ings made upon them require careful consideration. 
 The plaintiff had been employed by the defendants, who 
 were railway contractors, for some months prior to the 
 day on which he received his injuries. The duties as- 
 signed him when he first entered their employment was 
 to fill carts with stones which were lifted by a steam 
 crane in order to be put in the wagons; he was next 
 engaged in slinging stones on to the crane, and, about 
 two months before the accident, he was set to work with 
 hammer and drill with two other servants of the re- 
 spondents, he holding the drill while they used the 
 hammer. On the day of the accident he was sent, with 
 two others, to drill a hole in the rock in a cutting 
 through which a railway track was to be laid. While 
 they were thus employed, stones were being lifted from 
 the cutting, which was seventeen or eighteen feet deep; 
 the crane was resting on the top of the cutting, near 
 
Smith v. Bakee. 183 
 
 the edge. When slinging a stone, a chain was put 
 around it and a hook hitched into one of the links; to 
 this chain the chain from the crane was fastened ; when 
 the stones were clear of the bank the arm of the crane 
 was jibbed in one direction or another, according to the 
 position of the wagon into which the stone had to be 
 put; if it was jibbed in one direction it passed over the 
 place where the plaintiff was at work. It would appear 
 that this method of work had existed from the com- 
 mencement of plaintiff's employment at this work. 
 Whilst he was working the drill a stone in the crane, on 
 being lifted, fell upon him and caused serious injuries. 
 No warning was given that the stone was to be jibbed in 
 that direction. Plaintiff stated in his evidence that 
 the men were "jibbing" over his head; that whenever 
 he saw them he got out of the way, but at the time the 
 stone fell upon him he was working the drill and so did 
 not see the stone above. One of his fellow workmen 
 had in plaintift''s hearing previously complained to the 
 " ganger " or foreman of the work of the danger of 
 slinging stones over their heads, and plaintiff himself 
 had told the crane driver that it was not safe. On cross- 
 examination the plaintiff stated that he was a " navvy " 
 or railway laborer, and accustomed to this particular 
 work for six or seven years; he had been long enough 
 at it to know that the labor was dangerous ; he had been 
 at the same class of work in the same cutting when they 
 were jibbing overhead every day, and had been doing 
 that steadily for four or five months. Sometimes he 
 could see the stones being craned up aboye him, and 
 w^hen he saw them he got out of the way. At the close 
 of plaintiff's case, defendant's counsel submitted that 
 the case must be non-suited on plaintiff's own admission 
 as to his knowledge of the risk. (Citing Thomas v. 
 
184 The New Yoek Employees' Liability Act. 
 
 Quartermaine, 18 Q. B. D. 685.) The court refused to 
 non-suit. The only witness called for the defendants 
 was the superintendent of the work, under whose order 
 plaintiff was employed on the day of the accident. He 
 stated that they had put a sling chain on to the stone 
 in the ordinary way, and no explanation was made or 
 suggestion given as to what was the cause of the dis- 
 aster. He said that the rule of the works was that all 
 the employees should look out for themselves; that it 
 was part of plaintiff's employment to look out ; the men 
 ought to have stopped work while the stone was being 
 jibbed around, and that he told the men to get out of the 
 way. The special questions sent to the jury in the case 
 and their answers were these : " Q. 1. Was the ma- 
 chinery for lifting the stone from the cutting, taken as 
 a whole, reasonably fit for the purpose for which it was 
 applied? A. No. Q. 2. Was the omission to supply 
 special means of warning when the stones were being 
 jibbed a defect in the ways, works, machinery and 
 plant? A. Yes. Q. 3. If so, were the employers, or 
 some person engaged by them, to look after the condi- 
 tion of the works, etc., guilty of negligence in not 
 remedying that defect? A. Yes. Q. 4. Was the plain- 
 tiff guilty of contributory negligence? A. No. Q. 5. 
 Did the plaintiff voluntarily undertake a risky employ- 
 ment with the knowledge of its risk? A. No. Q. 6. 
 Amount of damages, if any? A. One hundred pounds." 
 Application was made on behalf of defendants to have 
 judgment entered for them, notwithstanding the find- 
 ings of the jury, on the ground that the case should not 
 have been allowed to go to them, plaintiff having ad- 
 mitted that he knew of the risk and voluntarily incurred 
 it. The trial judge having refused to set aside the ver- 
 dict, the case went upon appeal, the notice of appeal 
 
Smith v. Bakeb. 185- 
 
 simply specifying as error that the judgment was bad 
 in law on the ground that the plaintiff knew of the risk 
 and had voluntarily assumed it. The Court of Queen's 
 Bench dismissed the appeal, but allowed an appeal to 
 the Court of Appeal, which reversed the judgment of 
 the court below, mainly, or, perhaps, exclusively, on 
 the ground that there was no evidence of negligence on 
 the part of the defendant, although Chief Justice 
 Coleridge expressed an opinion that the judgment of 
 the County Court judge ought to be set aside on another 
 ground, also, namely, that the plaintiff had engaged to 
 perform a dangerous operation and took the risk of the 
 operation he was called upon to perform. From the 
 Court of Appeal the case came before the House of 
 Lords. Questions of fact are not heard before the 
 House of Lords, nor any law point not originally raised 
 in the County Court itself. The question on which the 
 Court of Appeal had reversed the case was disposed 
 of in the House of Lords on the ground that no such 
 point had been taken at the trial, and the question 
 whether there was or was not absence of negligence by 
 the defendant was not before the court. 
 
 In the leading opinion, that of Lord Halsbtjey, he 
 states the question involved in the case, as follows : 
 
 " The objection raised and the only objection raised 
 to the plaintiff's right to recover was that he had 
 voluntarily undertaken the risk. That is the question 
 and the only question which any of the courts, except 
 the County Court itself, had jurisdiction to deal with. 
 Now, the facts on which that question depends are 
 given by the plaintiff himself in his evidence. Speaking 
 of the operations of slinging the stones over the heads' 
 of the workmen he said himself that it was not safe 
 and that whenever he had sufficient warning or saw it 
 
186 The New Yokk Employees' Liability Act. 
 
 he got out of the way. The ganger told the workmen 
 employed to get out of the way of the stones which were 
 being slung. Plaintiff said he had been long enough at 
 the work to know that it was dangerous, and another 
 fellow workman, in his hearing, complained that it was 
 dangerous practice. 
 
 " My Lords, giving full effect to these admissions on 
 which the whole case for the defendants depends, it 
 appears to me that the utmost they have proved is that 
 in the course of the work it did occasionally happen that 
 stones were slung in this fashion over workmen's heads; 
 that plaintiff knew this and believed it to be dangerous, 
 and whenever he could he got out of the way. The ques- 
 tion of law that seems to be in debate is whether upon 
 the facts, and on an occasion when the very form of his 
 employment prevented him from looking out for himself, 
 he consented to undergo this particular risk and so dis- 
 entitled himself to recover when a stone was negligently 
 slung over his head or negligently permitted to fall on 
 him and do him injury. I am of the opinion that the 
 application of the maxim ' volenti non fit injuria ' is not 
 warranted by these facts. ... It appears to me 
 that the proposition upon which the defendants must 
 rely must he a far wider one than is involved in the 
 maxim. I think they must go to the extent of saying 
 that ichenever a person knows there is a risk of injury 
 to himself he debars himself from, any right of complaint 
 if an injury should happen to him in doing anything 
 tohich involves that risk. For this purpose and in order 
 to test this proposition we have nothing to do with the 
 relation of employer and employee. The maxim in its 
 application to the law is not so limited. Where it ap- 
 plies it applies equally to a stranger as to any one else, 
 and if applicable to the extent that is now insisted on no 
 
Smith v. Baker. 187 
 
 person ever ought to have been awarded damages for 
 being run over in the London streets, for no one (at all 
 events some years ago, before the admirable police regu- 
 lations of later years), could have crossed London 
 streets without knowing that there was a risk of being 
 run over." 
 
 " It is, of course, impossible to maintain a proposition 
 so wide as is involved in the example just given, and 
 in both Thomas v. Quartermaine, 18 Q. B. D. 685, and 
 Yarmouth v. France, 19 Q. B. D. 647, it has been taken 
 for granted that mere knowledge of the risk does not 
 necessarily involve consent to the risk." 
 
 Lord Watson^ in his opinion, says, page 354 ; " The 
 ■only question which we are called upon to decide, and 
 I am inclined to think the only substantial question in 
 the case, is whether, upon the evidence, the jury were 
 warranted in finding, as they did, that the plaintiff did 
 not ' voluntarily undertake a risky employment with a 
 knowledge of its risks.' Whether the plaintiff appre- 
 ciated the full extent of the risk to which he was ex- 
 posed or not it is certain that he was aware of its 
 existence and apprehensive of its consequences to him- 
 self, so that the point to be determined practically re- 
 solved itself into the question whether he voluntarily 
 undertook the risk. If upon that point there are 
 considerations pro and contra requiring to be weighed 
 and balanced, the verdict of the jury cannot be lightly 
 set aside. Defendant's case is that the evidence is all 
 one way; that the plaintiff's continuing in their em- 
 ployment after he had become aware and had com- 
 plained of the danger, of itself affords proof absolute 
 and conclusive of his having accepted the risk of a stone 
 falling in the course of its transit from the quarry to the 
 loading bank. . . . When, as is commonly the case, 
 
188 The New York Employers' Liability Act. 
 
 his {the workman's) acceptance or non-acceptance of 
 the risk is left to implication-, the workman cannot 
 reasonably he held to have undertaken it unless he knew 
 of its existence and appreciated or had the means of 
 appreciating its danger. But assuming that he did so 
 I am unable to accede to the suggestion that the mere 
 fact of his continuing at his work with such knowledge 
 and appreciation mil in every case necessarily imply 
 his acceptance. Whether it mil have this effect or not 
 depends, in my opinion, to a considerable extent upon 
 the nature of the risk and the workman's connection 
 with it, as well as upon other considerations which 
 must vary according to the circumstances of each case." 
 
 Lord Heeschell, in his opinion on the case, at page 
 361, says: "In the present case it must be taken on the 
 finding of the jury that the danger was at least enhanced 
 and the catastrophe caused by the negligence of the 
 defendants, and the question for your Lordship's consid- 
 eration is whether, under such circumstances, the fact of 
 the plaintiff having continued to perform the duties of 
 his service, precludes his recovery in respect to this 
 breach of duty because the acts or defaults which con- 
 stituted it were done ' volenti.' ''' 
 
 " There may be cases in which a workman would be 
 precluded from recovering even though the risk which 
 led to the disaster resulted from the employer's negli- 
 gence. If, for example, the inevitable consequences ol 
 the employed discharging his duty would obviously be 
 to occasion personal injury, it may be that if, with this 
 knowledge, he continued to perform his work and thus 
 sustain the foreseen injury he cannot maintain an 
 action to recover damages in respect of it. Suppose, 
 to take an illustration, that owing to a defect in the ma- 
 chinery at which he was emploved, the workman could 
 
Smith v. Baker. 189 
 
 Qot perform the required operation without certain loss 
 of a limb. It may be that if he, notwithstanding this, 
 performed the operation he could not recover damages 
 in respect to such a loss, but that is not the sort of 
 case with which we have to deal here. It was a mere 
 question of risk which might never eventuate in 
 disaster. The plaintiff evidently did not contemplate 
 injury as inevitable, nor even, I should judge, as prob- 
 able. Where, then, a risk to the employed, which may 
 or may not result in injury, has been created or en- 
 hanced l>y the negligence of the employer, does the 
 mere continuance in service, with knowledge of the risk, 
 preclude the employed, if he suffer from such negli- 
 gence, from recovering in respect of his employer's 
 breach of duty? I cannot assent to the proposition that 
 the maxim 'volenti non fit injuria" applies to such a 
 case, and that an employer can invoke its aid to protect 
 him from liability for his wrong . . . It is sug- 
 gested in the course of the argument that the employed 
 might on account of ^special risk in his employment re- 
 ceive higher wages, and that it would be unjust that in 
 such a case he should seek to make the employer liable 
 for the result of the accident. I think that this might 
 be so if the employed agreed, in consideration of special 
 remuneration or otherwise, to work under conditions 
 in which the care which the employer ought to bestow by 
 providing proper machinery or otherwise to secure the 
 safety of the employed, was wanting and to take the 
 risk of their absence he would no doubt be held to his 
 contract, and this is whether such contract were made 
 at the inception of the service or during its continu- 
 ance." 
 
 The decision of the House of Lords, on this extremely 
 important case, was concurred in by all the judges 
 
190 The New Yoek Employers' Liability Act. 
 
 except Lord Beamwell, and the point upon which 
 they all agreed, as expressed in the head note, is this: 
 " When a workman, engaged in an employment not in 
 itself dangerous, is exposed to a danger arising from an 
 operation in another department, over which he has no 
 control, the danger being created or enhanced by the 
 negligence of the employer . . . the mere fact that 
 he undertakes or continues in such employment with full 
 knowledge and understanding of the danger is not con- 
 clusive to show that he has undertaken the risk so as 
 to make the maxim ' volenti non fit injuria ' applicable 
 in case of injury. The question whether he has so 
 undertaken the risk is one of fact and not of law, and 
 this is so both at common law and in cases arising under 
 the Employers' Liability Act of 1880." 
 
 Sec. 63. The change intended by the statute. 
 
 Section " 3 " of the New York Employers' Liability 
 Act is intended to substitute for the present rigid rule 
 in force under the common law in that State (see. 53), 
 the flexible rule which prevails under the English com- 
 mon law as defined in the decisions which have just 
 been considered. The section has, however, thus far 
 failed to accomplish this effect. ( See sec. 64, infra. ) 
 
 Under this section of the New York law, an employee 
 is conclusively presumed by entering upon or continu- 
 ing in his course of employment, " to have assented to 
 and accepted all the necessary risks of his employment. 
 The statute defines a necessary risk as one inherent in 
 the nature of the business which remains after the em- 
 ployer has exercised due care in providing for the safety 
 of his employees and has complied with the laws afifec1> 
 ing or regulating such business or occupation for the 
 greater safety of such employee." This definition is 
 
Intended Change by Statute. 191 
 
 declaratory of existing law. (See sec. 51; Booth v. B. 
 & A. Ry. Co., 73 N. Y. 38; Pawtear -;;. Tilly Foster Mining 
 Co., 99 N. Y. 366 ; McGovern v. Cent. Vermont By. Co., 
 123 N. Y. 287; Bensing v. Steinway, 101 N. Y. 552.) 
 
 The section, however, provides that the employee shall 
 not be presumed to have assented to any risks other 
 than the necessary risks by reason of his entering upon 
 or continuing in the service with knowledge of such 
 risks. This, of course, is a modification of the existing 
 New York rule as to so-called "obvious risks" (see 
 section 49), when those obvious risks exist by reason 
 of the negligence of the employer. (See Crovyn v. Orr, 
 140 N. Y. 450; Kennedy v. Manhattan By. Co., 145 N.Y. 
 95; McQuigan v. D., L. & W. Ry. Co., 122 N. Y. 618.) 
 
 The statute having, in this section, first provided, as 
 has been just seen, that no conclusive presumption of 
 assumed risk shall arise from the mere fact of contin- 
 uance, then provides that, " in an action maintained 
 for the recovery of damages for personal injuries to an 
 employee, received after this act takes effect, owing to 
 any cause for which the employer would otherwise be 
 liable, the fact that the employee continued in the ser- 
 vice of the employer in the same place and course of 
 employment after the discovery by such employee or 
 after he has been informed of the danger of personal 
 injury therefrom, shall not, as a matter of law, be con- 
 sidered as an assent by such employee to the existence 
 or continuance of such risks of personal injury there- 
 from or as negligence contributing to such injury." As 
 has been seen (see sec. 52), the rule of law prevailing 
 in New York at common law has been that where the 
 employee continues at work after knowledge of the 
 danger of personal injury from the defect created by 
 
192 The New Yoek Employees' Liability Act. 
 
 his employer's negligence, he is presumed by such con- 
 tinuance to have assented to the existence or continu- 
 ance of the risk, and is not entitled to recover. The 
 master, under the decisions cited in section 49, owes no 
 duty of care {Knisley v. Pratt, 148 N. Y. 372) to such 
 a servant, and has been entitled to a non-suit in an 
 action brought by a servant when such knowledge, not 
 merely of the defect, but of the danger therefrom, has 
 been shown, and when, with that knowledge the em- 
 ployee has continued at work. In other words, by this 
 statute, the assent by the employee to the existence or 
 continuance of the risk of injury does not necessarily, 
 and as a matter of law, follow from the mere fact that 
 he keep at work. The statute then provides that the 
 question whether the employee understood and assumed 
 the risk of such injury, or was guilty of contributory 
 negligence by his continuance in the same place and 
 course of employment with knowledge of the risk of in- 
 jury, shall be one of fact subject to the usual powers of 
 the court in a proper case, to set aside a verdict rendered 
 contrary to the evidence. 
 
 The effect of this section is this: There is no infer- 
 ence to be implied by law (even where the workman 
 knows of and appreciates the danger) from the fact 
 of his continuance in the employment, that the question 
 of assumption of unnecessary risk is one of fact for the 
 jury; that the consent to run such risk must be proved 
 by the defendant who wishes to rely on the maxim 
 ^' volenti non fit injuria," the reason being that the work- 
 man does not impliedly take the risk of his employer's 
 negligence. The fact of continuance in employmenl, 
 while it remains an important element in the case, is 
 no longer necessarily controlling in the determination 
 of whether the employee voluntarily undertook the risk 
 
Judicial Ck)NSTEUCTioN of Sec. 3d. 193 
 
 of injury from his master's negligence. It must be con- 
 sidered by the jury with such other circumstances as 
 may be shown. It may be (as was intimated by Lord 
 Herschell in Smith v. Baker) that a situation may 
 arise so full of peril that no reasonable man would be 
 willing to endure it. In such a case it might well be 
 that an employee who continued under such serious 
 perils would be guilty of such negligence as to disentitle 
 him to recovery. In such a case a verdict in his favor 
 would, of course, be properly set aside by the court. It 
 may be that the facts and circumstances disclosed and 
 the nature of the defect are such as to lead irresistibly 
 to the conclusion that the plaintiff did voluntarily as- 
 sume the risk of injury and for this reason is not en- 
 titled to a verdict. (Church v. Appelhy, 58 L. J. Q. B. 
 144, 5 T. L. E. 88. ) The question of the assumption of 
 an unnecessary risk of a given employment is a question 
 of fact, and, ordinarily, the mere fact of continuance in 
 employment is an element and only an element in the 
 determination of that question by the jury. 
 
 Sec. 64. Section 3 as construed by the New York courts. 
 
 The third section of the Liability Act involves three 
 propositions. 
 
 (1) It declares that the employee assumes as a mat- 
 ter of law, the necessary risks inherent in the business. 
 This is the well settled common law rule. If an acci- 
 dent, therefore, occurs from a business risk not existing 
 through any negligence of the employer but inherent in 
 the very nature of the work itself and essential to its 
 usual performance, plaintiff has no right of action and 
 his complaint may be dismissed for failure of proof as 
 a matter of law. (Vaughn v. Glens Falls Cement Co., 
 105 App. Div. 136, 93 Supp. 979.) But this state- 
 13 
 
- 194 The New York Employers' Liability Act. 
 
 ment is apparently in conflict with McBride v. N. Y. 
 Tunnel Co., 113 App. Div. 821, 92 Supp. 282, 
 where the court says : " It is argued further that 
 the explosion caused by Martin's act, that is, a prema- 
 ture explosion, was inherent in the nature of the busi- 
 ness in which McBride was engaged, and that, therefore, 
 the complaint should have been dismissed. This, how- 
 ever, under the provisions of the Employers' Liability 
 Act, was a question for the jury. 
 
 (2) The question whether the plaintiff assumed the 
 risk of injury occasioned by an unnecessary risk, that 
 is, by a risk not inherent in the nature of the business 
 itself, but existing through the carelessness of his em- 
 ployer or by the employer's failure to comply with stat- 
 utes intended for the servant's safety is one of fact for 
 the jury. 
 
 As the Appellate Division, First Department, has 
 said in Kiernan v. Eidlitz, 109 App. Div. 726, 
 96 N. Y. Supp. 387 : " It is quite apparent, on 
 careful reading of the act, that the doctrine 
 of the assumption of obvious risk has not been 
 eliminated in an action by an employee against his 
 employer, even if the negligence alleged be the failure 
 to obey the strict provisions of the law as to furnishing 
 of safeguards against injury by the employee. If that 
 omission is obvious, the assumption of the risk is not 
 assumed as matter of law, entitling the employer to a 
 direction by the court, but the question whether the 
 employee understood and assumed the risk of such in- 
 jury shall be one of fact, and, of course, if one of fact,, 
 to be submitted to the jury, in other words, the doctrine 
 of the assumption of obvious risks is still preserved, but 
 the tribunal to pass upon the questions whether they 
 were assumed with knowledge and understanding is 
 
Judicial Construction of Sec. 3d. 195 
 
 changed from the court to the jury. If the absence of 
 the guard rail was the cause of the accident, the phy- 
 sical fact of its absence was as obvious to the employee, 
 as to the master or his superintendent. But the statute 
 says whether the employee understood and assumed the 
 risk caused by the failure to erect and keep the guard 
 rail there must be submitted to the jury. This inter- 
 pretation of the statute has the authority of the follow- 
 ing cases: Vaughn v. Glens Falls Cement Co., 105 A. 
 D. 136, 93 Supp. 979 ; Di Stefeno v. Peekskill Lighting 
 & R. Co., 107 A. D. 294, 95 Supp. 179 ; Wynkoop v. Lud- 
 low Valve Mfg. Co., 112 A. D. 729, 98 Supp. 1076; Beilli/ 
 V. Troy Brick Co., 184 N. Y. 399, 77 N. E. 385." 
 
 As the court says in Vaughn v. Glens Falls Cement 
 Co., 105 App. Div. 136, 93 Supp. 979: "By that 
 section it is substantially provided that it may 
 no longer be assumed as a matter of law, namely, 
 conclusively be presumed, that an employee has 
 assumed all risks that are obvious and fully 
 appreciated by him. Such an assumption goes only to 
 those that are in such section defined as 'necessary 
 risks.' ... In this case the risk was plain and 
 obvious to the plaintiff, but it was one not necessarily 
 existing. It resulted from a negligent omission on the 
 defendant's part. The plaintiff's deliberate perform- 
 ance of the work, therefore, cannot be considered as a 
 matter of law, to be an assumption of such risk, 
 or as contributory negligence on his part." (See, 
 also. Baker v. Empire Wire Works, 102 A. D. 
 1,^-iS^92 Supp. 355; Cadigan v. Glens Falls Gas & Eleo- 
 triG Lighting Co., 112 A. D. 751, 98 Supp. 954; Di 
 Stefeno v. Peekskill lAghting Co., 107 A. D. 293^ 
 95 Supp. 179; Freemont v. Boston & Maine Railroad 
 Co., Ill A. D. 831, 98 Supp. 179 ; Reilly v. Troy Brick 
 
196 The New Yoek Employees' Liability Act. 
 
 Works, 184 N. Y. 399 ; Wynkoop v. Ludlow Valve Mfg. 
 Co., 112 A. D. 729, 98 Supp. 1070.) 
 
 The intimation in Faith v. N. Y. Central By. Co., 109 
 A. D. 222, that " cases might arise where the evidence 
 conclusively establishes assumption of risk as a matter 
 of law " is contrary to the meaning of this section of 
 the act if applied to risks other than necessary risks in- 
 herent in the very nature of the business and not created 
 by negligence of the defendant. The question of whether 
 the plaintiff was guilty of contributory negligence under 
 the same circumstances, that is, simply by staying at 
 work with knowledge of the danger is also for the jury. 
 (See cases above cited.) 
 
 (3) The question of whether the plaintiff was or was 
 not guilty of contributory negligence is not necessarily 
 one for the jury, except in cases where the only con- 
 tributory negligence shown is simply the continuance at 
 employment with knowledge of the risk or danger 
 created by the employer's negligence. {Chisholm v. 
 Manhattan Ry. Co., 116 A. D. 320, 101 Supp. 622. ) Sec- 
 tion 3 does not affect the usual rule regarding contribu- 
 tory negligence, that is, the plaintiff must show the 
 absence of contributory negligence on his part. The 
 only modification made by the section on the general 
 rule as to contributory negligence is that such infer- 
 ences regarding contributory negligence as might be 
 drawn solely from the fact of the continuance in em- 
 ployment at the same place in the presence of a known 
 danger be passed upon as a question of fact for the jury. 
 With this exception created by this section the com- 
 plaint may still be dismissed in a proper case for the 
 failure of plaintiff or his personal representative 
 to show the absence of contributory negligence. In Wil- 
 son V. New York Mills, 107 A. D. 99, 94 Sup. 1090, there 
 
Judicial Consteuction of Sec. 3d. 197 
 
 was " a total absence of tangible facts by wMch the jury 
 might determine how the accident happened to plain- 
 tiff's intestate." The man was hurt while greasing 
 wheels. His clothing was caught in the wheels. The 
 court reversed the verdict for failure to prove the ab- 
 sence of contributory negligence. The court quotes 
 section 3 so far as it declares that the question whether 
 the employee understood and assumed the risk or was 
 guilty of contributory negligence by his continuance 
 at work with knowledge of the risk should be a ques- 
 tion of fact for the jury, and says : " The effect of this 
 provision is not to relieve the plaintiff from showing 
 freedom from contributory negligence, nor does it re- 
 quire the submission to the jury of this question where 
 there is an utter absence of proof tending to establish 
 tJie exercise of care by the person injured. Submission 
 to the jury implies controverted facts or circumstances 
 from which contrary inferences may fairly be drawn. 
 The isolated fact that an employee was killed in the 
 course of his employment does not of itself permit a 
 jury to find that the employee was free from fault con- 
 tributing to his death. The plaintiff must show af- 
 firmatively his freedom from negligence and if he ut- 
 terly fails in this essential part of his case, the duty of 
 the court to nonsuit still remains in spite of the Em- 
 ployers' Liability Act, for the reason that there is- ho 
 fact to be submitted to the jury." 
 
 In Kinney v. Rutland Railroad Co., 114 A. D. 286, 99 
 Supp. 800, where the complaint has been dismissed, the 
 court in reversing the nonsuit said : " The proper notice 
 was served under chapter 600 of the Laws of 1902, so 
 that this nonsuit cannot stand upon the ground that 
 plaintiff with knowledge of defendant's fault has by his 
 contract assumed the risk. It can only stand upon one of 
 
198 The New York Employers' Liability Act. 
 
 two grounds. First, that as a matter of law defendant 
 has not been guilty of contributory negligence, and 
 second, that as matter of law plaintiff has been guilty of 
 negligence which contributed to produce his injury." 
 (See, also, Bauer v. Empire State Dairy Co., 100 Sup. 
 663.) 
 
 Sec. 65. Setting aside verdicts under Section 3. 
 
 It has been seen by the preceding section that ordin- 
 arily the question of assumption of risk by continu- 
 ance of employment in the presence of an unnecessary 
 risk is one of fact for the jury. The section further 
 provides, however, that a verdict so rendered shall be 
 subject to the usual powers of the court in a proper 
 case to set aside a verdict rendered contrary to the evi- 
 dence. One of the most important questions rising 
 under section 3 relates to the use by the 'court of the 
 power to set aside a verdict where the evidence shows a 
 continuance in employment with knowledge of the de- 
 fect or negligence, where the verdict has been for plain- 
 tfff. In a number of eases in which this question has 
 arisen the facts have been such that at common law the 
 complaint would have been dismissed. Under the com- 
 mon law doctrine, where an employee remains at work in 
 the presence of a known danger, even existing through 
 the negligence of his employer, he is to be held to have 
 assumed that risk as a matter of law. ( See sections 52 
 and 53, supra.) This question being now, under the 
 act, one of fact for the jury, and the jury having found 
 a verdict contrary to the conclusion which the court 
 would have reached as a matter of law under the com- 
 mon law doctrine, what disposition shall the court make 
 of the motion to set aside the verdict? This has been 
 passed upon in a number of cases and the practical result 
 
Setting Aside Verdicts. 199 
 
 of section 3 thus far has been to make the submission of 
 of the question of assumption of risk to the jury a mat- 
 ter of form rather than of substance in cases where, at 
 common law the complaint would have been dismissed 
 or a verdict directed for defendant. The courts have 
 thus far uniformly set aside verdicts as contrary to the 
 weight of evidence in cases where the same verdicts 
 would at common law have resulted in a directed ver- 
 dict for defendant or a dismissal of the complaint. 
 {Vaughn v. Glens Falls Insurance Co., 105 A. D. 136, 
 93 Sup. 979; Baker v. Empire Wire Co., 102 A. D. 125, 
 92 Sup. 355; Wynkoop v. Ludlow Valve Mfg. Co., 112 
 A. D. 729, 98 Supp. 1076; Roche v. India Rubber, etc., 
 Co., 100 Sup. 1009.) 
 
 An examination of these cases will show that the Ap- 
 pellate Courts have in them held where plaintiff's know- 
 ledge and understanding of the danger of an unneces- 
 sary risk created by negligence has been shown, that 
 the only conclusion to be drawn by the jury as a matter 
 of fact from the continuance in employment, must be 
 the same conclusion that had previously been drawn 
 by the courts as a matter or law, and any verdict by 
 the jury which differs from that conclusion previously 
 drawn by the court is contrary to the w«ight of evidence. 
 Knowledge of a xisk under these decisions is held to be 
 equivalent to assumption of risk and must be so found 
 by the jury. This construction takes away all meaning 
 of the word " assumed " in that portion of the section ' 
 which says that the question whether the plaintiff knew « 
 and assumed the risk was one for the jury.. ' The Court 
 of Appeals has not yet been called upon to decide what, 
 if any, actual change section 3 of the act has made in 
 the existing law. At present the purpose of the act as 
 contained in this section and as shown in section 64 
 I)receding, has for the most part failed. 
 
200 The New Yoek Employees' Liability Act. 
 
 Sec. 66. Effect of Section 3 on common law actions. 
 
 That portion of section 3 which, defines necessary 
 risks and which provides that " the fact that the em- 
 ployee continued in the service after the discovery of a 
 defect existing by negligence shall not be construed as 
 a matter of law as an assent to the existence or contin- 
 uance of the risk or as negligence contributing to such 
 injury," does not in terms state that this section applies 
 only to actions brought under the Liability Act, and the 
 phrase used in section 3, " in all cases arising after this 
 act takes effect," has been construed in the Appellate 
 Division, First Department, to make this section apply 
 to all master and servant cases brought, both under the 
 act and at common law. In Ward v. Manhattan Rail- 
 way Company, 95 App. Div. 437, 88 N. Y. Sup. 
 758, the action was a common law action solely. 
 On appeal from a verdict by the defendant, the 
 court says : " The errors already pointed out re- 
 quire a new trial, but in awarding the same we 
 deem it proper to make some further observations. The 
 court, submitting the case to the jury, instructed them 
 upon the law concerning the assumption of risks by an 
 employee as the law existed prior to the enactment of 
 the Employers' Liability Act (so called). No new lia,: 
 bility is created by that act for the failure of an em- 
 ployer to make proper rules and regulations for the 
 safety of his employees. The action is therefore based 
 upon the common law. It has been decided that sec- 
 tions 1 and 2 of the Employers' Liability Act apply only 
 to causes of actions arising thereunder. But it has not 
 been decided that none of the provisions of the act apply 
 to causes of actions for negligence in general, regardless 
 whether they arise under the statute or at common law. 
 Section 3 of the act is manifestly of general application 
 
Section 3d and Common Law Actions. 201 
 
 to all actions by servants against master for negligence 
 upon causes of action arising thereafter. It prescribes 
 a new rule with, reference to the assumption of risks 
 more favorable to the employee than the rule that previ- 
 ously obtained, and we are of opinion that it is applic- 
 able to this case." (See, also, Smith v. Manhattan Ry. 
 Co., 98 Sup. 1, to the same effect. ) 
 
 The Third Department of the Appellate Division dis- 
 agrees with this construction of the statute. In O'Neil 
 V. Karr, 110 App. Div. 571, 97 Sup. 148, the 
 court construes the act as an entirety, and con- 
 struing section 3 in connection with section 2, 
 it reaches the conclusion that section 3 is not 
 of general applicability, but only to causes of action 
 brought under the act. " It is true that section 3 has in 
 it some general expression which might at first seem to 
 make it applicable to all actions, whether at common 
 law or under this act, but no single section of the act 
 can be separated from the rest and alone construed. 
 This act must be read as a whole. In section 2 it is 
 provided ' No action for recovery or compensation for 
 injury or death under this act shall be maintained unless 
 notice of the time, place and cause of the in- 
 jury is given to the employer. This provision of 
 the statute does not require notice to be given 
 in an action for injury or death under the first sec- 
 tion of the act, but under the act itself, which in- 
 cludes all the sections, and the conclusion would seem to 
 me to be irresistible that by force of this clause, one who 
 would seek the benefits of this act must give the notice 
 required by the act. Whether the recovery is sought 
 for an increased liability under section 1 or 3, the action 
 is in either case brought under the act, and by the 
 terms of section 2 quoted the notice therein specified^ 
 
202 The New York Employees' Liability Act. 
 
 is required to be served. That this construction is a 
 true one would seem to be indicated by the provision in 
 section 3 itself, which provides that an employee or his 
 legal representatives shall not be entitled "under this 
 act " to any right of compensation or remedy against 
 the employer where such employer knew of the defect 
 or negligence and failed to give notice thereof unless the 
 employer or his superintendent had equal knowledge 
 thereof prior to the injuries to the employee. If this 
 act were inseparable this provision should read that an 
 employee or his legal representative shall not be en- 
 titled under this section to any right of compensation, 
 etc. The reading of the section itself indicates that the 
 act is not separable but entire and was so regarded by 
 the Legislature when the act was passed and its benefits 
 are given to those who comply with its condition of 
 notice given." 
 
 The Appellate Division, First Department, has more 
 recently reconsidered its decision in the Ward case, 88 
 Sup. 758, in Curran v. Manhattan Railway Co., 103 
 Supp. 351, and has said : " Further consideration has 
 led us to conclude that in order to entitle an employee 
 to the benefits of the provisions of the Employers' Lia- 
 bility Act, he must bring his action under that act and 
 conform to its terms therein contained. {Chisholm v. 
 Manhattan Railicay Co., 116 A. D. 320. ) And that in 
 an action for common law negligence he is not entitled 
 to the benefits of its provisions, but must be governed 
 by the rules of the common law." 
 
 The question of whether section 3 of the act applies to 
 common law actions must, therefore, be answered in 
 the negative. The Court of Appeals has not as yet been 
 called upon to decide the point. 
 
Notice iOf Defect to Employee. 203 
 
 Sec. 67. Notice of defect to employer; statutes compared. 
 
 An employee to be entitled to take advantage of the 
 liberal provisions of the Liability Act must notify his 
 employer of the defect which caused his injury when- 
 ever he himself knows of the defect a reasonable time 
 prior to the occurrence of the accident. If he cannot 
 give the notice to the employer himself he must give it 
 to some person superior to himself in the employer's 
 service intrusted with some general superintendence. 
 The only excuse for the failure to give such notice where 
 the employee hiniself is aware of the defect or danger, 
 is where the employer or some person superior to the 
 employee intrusted in some general superintendence, 
 knew of the defect so that such a notice was unneces- 
 sary and would serve no useful purpose. This provi- 
 sion is similar to the provisions of the other liability 
 acts. The English statute provides (subd. 3 of sec. 2) 
 that workmen shall not be entitled under this act to 
 any right of compensation or remedy against the em- 
 ployer ... in any case where the workman knew 
 of the defect or negligence which caused his injury, and 
 failed within k reasonable time to give, or cause to be 
 given, information thereof to the employer or some per- 
 son superior to himself in the service of the employer, 
 unless he was aware that the employer or such superior 
 person already knew of such defect or negligence. 
 
 The Alabama law substantially follows the wording 
 of the English statute. The portion underlined in the 
 English statute is omitted in the Massachusetts and 
 Colorado law. The Indiana law contains no require- 
 ment for such a notice of defect. Under the English 
 and Alabama law it would appear that to excuse the 
 giving of the notice of defect, two things must concur : 
 First, the employer or some superior person must know 
 of the defect; second, the employee must know prior to 
 
204 The New York Employers' Liability Act. 
 
 the accident that the employer or superior person had 
 such knowledge of the defect that notice to them of it is 
 unnecessary." The New York statute does away with 
 the necessity of this second element of proof, and the 
 failure to give notice is excused if the employee can 
 show, upon trial, that the employer or superior person 
 in fact knew of the defect at any time prior to the acci- 
 dent. In Keating v. Coon, 102 App. Div. 112, 92 Supp. 
 474, plaintiff, a sixteen-year-old boy, was hurt in a de- 
 fective machine known as a carder. One of the main 
 issues in the case was whether the plaintiff had notified 
 defendant's superintendent of the defect in the machine 
 within a reasonable time. It appeared by evidence 
 given on trial that the boy had known for some two 
 weeks before the accident of the defect in the machine 
 but had not informed defendant's superintendent of the 
 defect. The trial judge charged the jury that it was the 
 boy's duty to give the superintendent this information 
 within a reasonable time and further charged as a mat- 
 ter of law that " if the boy knew of the defect, under- 
 stood the danger and knew that this machine was out of 
 repair and ought to be fixed, the fact that he allowed 
 two weeks to expire without giving such information to 
 the superintendent, the waiting so long a period was an 
 unreasonable period of time for him to wait, within that 
 time before the injury occurred he should have given 
 the superintendent notice that the machine was out of 
 order." On appeal this was held to be error. The 
 charge, as a matter of law, that the omission for two 
 weeks to give the notice barred the recovery as there was 
 evidence that the superintendent had had knowledge of 
 some of the defects in the machine before the accident, 
 
 17. Seaboard Mfg. Co. v. Wood- 
 son, 94 Ala. 143. 
 
Servant's Duty to Complain. 205 
 
 and the court says: "If Haythorne (the superintend- 
 ent) knew the rollers were out of gear and the plaintiff 
 was aware he possessed that knowledge, then it was not 
 incumbent upon the lad to inform the superintendent of 
 the defect." 
 
 Sec. 68. Servant's duty to complain. 
 
 At common law, irrespective of the Liability Act, it 
 has been held that it is the duty of an employee who 
 knows of the existence of a defect in the materials or 
 instrumentalities of his work, or of the incompetence of 
 a fellow employee, or any other danger to which he is 
 unnecessarily exposed in his work, to complain of the 
 same and to notify the employer so that he may have 
 an opportunity to correct the deficiency. This applies, 
 of course, only in those cases in which the employer 
 himself is not aware of the defect. See cases collected 
 in the foot-note.^® 
 
 Sec. 69. The burden of proof as to the notice of defect. 
 
 There has been no change made by the statute as to 
 the burden of proof by this requirement concerning 
 the notice of defect. The provision of the statute 
 is not intended to create a condition which plaintiff 
 must show has been complied with before he can main- 
 tain an action, but simply to give the employer a new 
 ground of defense, the burden of showing which rests 
 upon defendant. (Connolly v. Waltham, 156 Mass. 
 
 18. Watts V. Boston Towboat Penn. St. 324; Davis v. Detroit, 
 Co., 161 Mass. 378; Keerw/n v. Edi- etc., Ry. Co., 20 Mich. 105; Will- 
 son Electric Co., 159 Mass. 379; iams v. St. Louis, etc., By. Co., 119 
 Satt V. May, 144 Mass. 186; 2V. T., Mo. 316. 
 L. E., etc., Ry. Go. v. Lyons, 119 
 
206 The New Yoek Employees' Liability Act. 
 
 368; Thomas v. Bellamy, 126 Ala. 253; Broslin v. 
 Kansas City, etc., By. Co., 114 Ala. 398. There is 
 nothing which requires plaintiff either to prove the giv- 
 ing of such notice or to make allegations concerning it 
 in his complaint. (Connolly v. Waltham, 156 Mass. 
 368.) 
 
Pleading and Peaotice. 20T 
 
 CHAPTER VI. 
 
 Pleading and Peactice. 
 
 Sec. 70. No general change in pleading made by the act. 
 
 There can be no question but what the Employers'^ 
 Liability Act does not change the ordinary rules of 
 pleading in negligence cases now in force in New York, 
 and while there are many cases under the Liability Act 
 in other States relative to the form of the action, these 
 decisions are, for the most part, of local value only, 
 brought under the common law system of pleading, and 
 have no bearing upon actions under the New York Code. 
 
 Sec. 71. The complaint under the Liability Act. 
 
 Allegations of a cause of action under the common 
 law and under the Employers' Liability Act are the 
 same except that under the act there must be an allega- 
 tion with respect to the service of the notice provided 
 for therein. {Monigan v. Erie Ry. Co., 99 App. Div. 
 603, 91 Supp. 657; Severson v. Eill-Warner-Fitch Co.,. 
 101 Supp. 808. See, also, to the same effect, Harris v. 
 Baltimore Machine & Elevator Works, 112 App. Div. 
 389, 98 Supp. 440, afBrmed, 188 N. Y. 141.) 
 
 It has been held in Harris v. Baltimore Machine and 
 Elevator Works, 98 Supp. 440, that where the action 
 is for the negligence of a superintendent, it is not neces- 
 sary to make any special allegation either of the occur- 
 rence of the accident through the negligence of the 
 superintendent or that he was acting as such at that 
 time. The complaint in this action was criticised both 
 on trial and on appeal as not alleging a cause of action 
 
208 The New York Emploxees' Liability Act. 
 
 under the act. The decision of the Appellate Division 
 sustaining the pleading has been affirmed in the Court 
 of Appeals, 188 N. Y. 141. The Appellate Division, 
 2d Dept., says of the complaint : " It alleges that the 
 plaintiff, being in the employ of defendant, was directed 
 by it to enter an elevator which it had constructed and 
 had under its control, and use the same. That it was 
 negligently constructed in that the cable by which it 
 was suspended was negligently fastened to the top of 
 the car, and that by reason thereof and of defendant's 
 negligence in directing the plaintiff to use the car, the 
 said cable became unfastened and the car fell. In the 
 last paragraph it alleges service of the notice required 
 by the statute. The complaint is well drawn, it is bar- 
 ren of allegations of evidence and other unnecessary 
 allegations. It is said that the complaint should have 
 in strictness alleged that the plaintiff was directed by 
 the superintendent to use the car and that such superin- 
 tendent did the other negligent acts, in order to be 
 deemed under the statute. The learned trial judge 
 shared this view, but ruled, nevertheless, that the com- 
 plaint could be eked out as sufficient. The pleader was 
 entirely right in alleging that the negligence was that 
 of the defendant. To have alleged that the negligence 
 was that of the superintendent would have been un- 
 scientific and not in due form. The negligence to be 
 recovered for under the statute is that of the defendant 
 and not of the superintendent or any agent or employee, 
 the very same as under the common law. The statute 
 merely changes the common law rule by making the 
 negligence of the superintendent that of the master in the 
 cases where at common law it would be that of a fellow 
 servant. The complaint should be for the negligence of 
 the defendant in every case now as always, and evidence 
 
The Complaint Under the Act. 209 
 
 that the superintendent did the negligent act makes out 
 the allegation of the complaint. For a complaint to 
 allege in any case that the defendant by his agent or 
 servant did thus and so would not be scientific form. 
 The proper form is that the defendant did it, and 
 whether he did it personally or by an agent matters not ; 
 in either case he did it. Which way he did it is a matter 
 of evidence, not of pleading." (See, however, Bear 
 Creek Mill Go. v. Parker, 134 Ala. 293. )i 
 
 As has been shown before in section 42, in order to 
 entitle the plaintiff to relief under the Liability Act, 
 due notice of claim, stating the time, place and cause of 
 the injury must have been served within the statutory 
 period upon the defendant and such fact must appear 
 by the complaint. It has been held that an allegation 
 that notice of the time, place and cause of the injury 
 was "duly" given to the defendant is suflflcient. (See 
 Steffe V. Old Colony By. Co., 156 Mass. 262; Cairncross 
 V. Pewaukee, 78 Wis. 66; Todd v. Union Casualty Co., 
 70 App. Div. 52.) 
 
 It is suggested, however, that better practice would 
 require a fuller statement. {Reining v. Buffalo, 102 
 
 1. In Bear Creek Mill Co. v. plaintiff' attempted to make the 
 Parker, 134 Ala. 293, the declara- coupling of ears as directed by such 
 tion alleged that the injury to section loader, etc. It was held on 
 plaintiff was caused by the negli- demurrer to be bad pleading in 
 gence of a certain named person that the declaration did not state 
 in the service or employment of that this loader or boss was en- 
 defendant corporation as "loader trusted with any superintendence 
 or boss of the trainmen," to as such as contra distinguished 
 whose order plaintiff was bound to from the ordinary servant or em- 
 conform and did conform, and that ployee, to do certain designated 
 said injuries resulted from plain- work (Da/nzler v. De Bardelehen 
 tiff having so conformed to the or- Coal Co., 101 Ala. 309), nor was 
 ders and directions of such person, it averred that the direction was 
 and were caused by reason that one negligently given. 
 14 
 
210 The New York Employees' Liability Act. 
 
 N. Y. 308; Holroyd v. Town of Indian Lake, 75 App. 
 Div. 197.) There is yet much uncertainty among the 
 decisions as to whether in statutory actions an allega- 
 tion that a statutory condition precedent had been 
 " duly " complied with, is an allegation of a conclusion 
 of law and not issuable, or an' allegation of fact. (Ab- 
 bott's Trial Brief on Pleading, sec. 255, and cases cited. ) 
 Moreover, an action under this act is obviously not 
 covered by section 533 of the Code, which provides that 
 in pleading the performance of a condition precedent 
 in a contract it is not necessary to state the facts con- 
 stituting performance, but that the party may state 
 generally that he duly performed all conditions on his 
 part. It was undoubtedly the rule of common law, 
 except in cases covered by this section of the Code, that 
 the plaintiff must particularly plead each condition 
 precedent and compliance therewith, and the only relief 
 from pleading, as was required at common law, the 
 doing of acts claimed to be performance of the condi- 
 tions, is found in the Code. (See Les Successurs 
 D' Aries v. Freedman, 53 Supr. 518; Hatch v. Peet, 23 
 Barb. 575; Hamerschlag v. Electrical Co., 16 App. Div. 
 185; Gcrh v. Metropolitan Collecting Co., 30 Misc. 314, 
 63 Supp. 513.) 
 
 The better practice would, therefore, be to allege facts 
 showing the time and manner of service of the notice 
 and the contents of the notice itself, at least sufficiently 
 to show that the notice stated the time, place and cause 
 of the injury. 
 
 In other respects the ordinary rules of pleading in 
 negligence cases apply to a complaint drawn under the 
 statute. In Redhead v. Dunbar & Sullivan Dredging 
 Co., 101 Supp. 301, there are statements from which the 
 inference might be drawn that the absence of contrib- 
 
The Complaint Under the Act. 211 
 
 utory negligence has to be pleaded as though it were a 
 condition precedent the performance of which has to be 
 alleged. It is elementary, of course, that the absence of 
 contributory negligence does not have to be pleaded in 
 a common law action for negligence although the ma- 
 jority of such complaints contain such allegations. The 
 Liability Act does not change the rule, and the doctrine 
 in the case referred to is not an authority for such a 
 change in the requirements of the pleading. (See 
 Severson v. Hill-Warner-Fitch Co., 101 Supp. 808.) 
 
 When one seeks to maintain an action under a statute 
 it is a sound and well settled rule of pleading that he 
 must state specially every fact requisite to enable the 
 court to judge whether he has a cause of action arising 
 under the statute. (Bartlett v. Cosier, 17 Johns. 4385 
 Austin V. Goodrich, 49 N. Y. 266.) 
 
 " It is immaterial whether a condition be imposed in 
 a statute giving a right of action or be provided by 
 contract or exist by some force or principle of common 
 or statute law. The complaint must, by the settled 
 rules of pleading, state every fact essential to the cause 
 of action to give the court jurisdiction to entertain the 
 particular proceeding." (Reining v. City of Buffalo, 
 102 N. Y. 308.) 
 
 An allegation would be sufficient which followed in 
 substance the statute and stated that notice of the time, 
 place and cause of injury was given to the employer 
 within 120 days after the occurrence of the accident, 
 and that a written notice, signed by the person injured, 
 was served by delivering the same at his residence (or 
 place of business), or, in the alternative, by post by let- 
 ter addressed to him at , being his last known 
 
 place of residence (or place of business) . (See Roches- 
 ter Ry. Co. V. RolUns, 133 N. Y. 242.) 
 
212 The New Yoek Employees' Liability Act. 
 
 When the notice is not given within 120 days, by rea- 
 son of " physical or mental incapacity," the complaint 
 should state, as a fact, that plaintiff by reason of such 
 incapacity had been unable to give the notice, and that 
 the same was given within ten days after the removal 
 of the incapacity. In an action by an executor or an 
 administrator, the better practice would be to allege 
 the date of appointment and the date on which the 
 notice was given by the executor or administrator, in 
 case no notice has been given by the deceased in his life 
 time. 
 
 It is, of course, unnecessary, in a complaint, based 
 upon such a general statute as the Liability Act, to 
 recite the provisions of the act, or even to make any 
 express allusion to the statute itself. As the Court of 
 Appeals says in Harris v. Baltimore Machine d Ele- 
 vator Co., 188 N. Y. 141 : " It is not necessary, in order 
 to plead a cause of action under the Employers' Liabil- 
 ity Act, that its precise language should be made use of, 
 provided that it appear plainly from what is alleged 
 that the cause of action was within the provisions of the 
 act and that its requirements of the giving of a notice 
 to the defendant has been complied with." (See, also, 
 same case, 112 App. Div. 389, 98 Supp. 440; Severson 
 V. mil-Warner-Fitch Co., 101 Supp. 808.) While the 
 statute must be pleaded, that is, the complaint must 
 state facts bringing the cause within its provisions, it 
 need not describe or recite it as the court takes judicial 
 notice of such an enactment. {Riley v. McNulty, 100 
 Supp. 985 ; Edwards v. Laiv, 63 App. Div. 451, 71 Supp. 
 1097; 8winnerton v. Columbia Ins. Co., 37 N. Y. 174; 
 O'Brien v. Fitzgerald, 29 Supp. 975; McHarg v. East- 
 man, 7 Eobert, 137; Shaw v. Tobias, 3 N. Y. 188; 
 Brown v. Harmon, 21 Barb. 508; Carris v. Ingalls, 12 
 
Pleading Several Counts. 213 
 
 Wend. 70; Bayard v. Smith, 17 Wend. 88; Goslit v. 
 Cowrey, 8 Supr. Ct. 132; O'Brien v. Kurscheedt, 61 St. 
 Rep. 470, 29 N. Y. Supp. 973.) 
 
 Sec. 72. Pleading several counts. 
 
 In several States in which employers' liability acts 
 are in force, it is the practice to set forth in the declara- 
 tion separate counts, each alleging the breach of one or 
 more of the provisions of the act when the action is 
 founded upon more than one of the subdivisions creat- 
 ing liability, and it has been held that to join several 
 breaches of the act as one count is bad pleading. 
 
 This form of pleading is very cumbersome and tends 
 rather to confusion of issues than to clearness or pre- 
 cision. It is not required under the New York Code 
 of Civil Procedure, and the statement of causes of in- 
 jury in separate counts is not good practice in New 
 York, whether the action is brought at common law or 
 under the Employers' Liability Act. A cause of action 
 for personal injuries occasioned by negligence is a 
 single cause of action and very general allegations of 
 negligence have been held sufficient pleading. (See 
 Piszi V. Bied, 72 App. Div. 162; Leeds v. N. Y. Tele- 
 phone Co., 64 App. Div. 484, 72 Supp. 250; Agnew v, 
 Brooklyn City By. Co., 20 Abb. N. C. 235, and cases 
 cited in the note; Clare v. N. Y., etc., B. Co., 172 Mass. 
 211; Oldfield v. N. Y., N. H. & H. By. Co., 14 N. Y. 310; 
 Laughran v. Brewer, 113 Ala. 509. ) A cause of action 
 for carelessness or negligence, by means of which injury 
 and death ensue, may and should be stated in one count 
 in the complaint. {Dickens v. N. Y. C. B. B. Co., 13 
 How. 228; Smith v. Bathhun, 22 Hun, 150.) The Code 
 of Civil Procedure (sec. 481) requires that the com- 
 plaint should set forth plainly and concisely the facts 
 
214 The New York Employees' Liability Act. 
 
 constituting each cause of action without unnecessary 
 repetition, and while separate counts have been allowed 
 in cases in which the precise nature of the cause of 
 action itself is doubtful and plaintiff is uncertain as to 
 the form in which he will be able to introduce his proof 
 (see Blank v. Hartshorn, 37 Hun, 101; Talcott v. Van 
 Yechten, 25 Hun, 565; Barr v. Shaw, 10 Hun, 580; 
 Yelie v. Newark Ins. Co., 12 Abb. N. 0. 309), separate 
 statements of the same cause of action or separate 
 counts is ordinarily held bad pleading. The action for 
 personal injury received by negligence being a single 
 cause of action, all the allegations of negligence may be 
 properly alleged together in one statement. Moreover, 
 it is to be observed, that while in Massachusetts or Ala- 
 bama a declaration which does not separately state the 
 counts upon the common law, superintendence, defects 
 in ways, etc., is demurrable, in New York no such 
 ground for demurrer exists, the only remedy for defend- 
 ant where causes of action are not separately stated is 
 by motion to separately state and uumber. ( See Gunn 
 V. Fellows, 41 Hun, 257 ; Toionsend v. Cohn, 7 Civ. Pro. 
 57; Bass v. Comstock, 38 N. Y. 21.) 
 
 It has been held in Alabama that where the action 
 is brought to recover for negligence of a superintendent, 
 the name of the person who it is claimed was exercising 
 superintendence should be alleged if known to the plain- 
 tiff, and if the name is not known that fact should be 
 alleged and must be proved on trial. (See Woodward 
 Iron Co. V. Herndon, 114 Ala. 191 ; Ala. G. 8. Ry. Co. v. 
 Davis, 119 Ala. 572.) 
 
 There can be no question but what such an allegation 
 is not proper in the complaint under the New York 
 Code. {Harris .v. Baltimore Machine & Elevator Co., 
 112 App. Div. 389, 98 Supp. 440.) Matters of evidence 
 
Pleading Several Counts. 215 
 
 are not properly to be pleaded in a complaint, and the 
 name of the person claimed to have been a superintend- 
 ent clearly falls within this rule as being a mere matter 
 of evidence, even though under special circumstances it 
 might be required in a bill of particulars. In Massa- 
 chusetts the name of the superintendent is not required 
 to appear in the declaration. {Woodhury v. Post, 158 
 Mass. 140.) 
 
 As has just been noticed in a previous section (see 
 sec. 62), the complaint need contain no allegation that 
 notice of the existence of the defect from which the in- 
 jury arose was given to the employer within a reason- 
 able time prior to the accident, and no reference to the 
 notice of defect provided for in section " 3 " of the act 
 is necessary in the pleading. 
 
 Sec. 73. Joinder of common law and statutory liability. 
 
 When a complaint is drawn which is broad enough in 
 its terms to include both statutory and common law 
 liability, and the notice under section 2 is properly al- 
 leged, if the plaintiff fails to prove the statutory liabil- 
 ity but the complaint is broad enough in its allegations 
 to justify a common law recovery, the court may prop- 
 erly regard the provision as to the notice as surplusage 
 and permit a recovery at common law. {Holme v. Em- 
 pire Hardware Co., 102 App. Div. 505, 92 Supp. 914; 
 Kleps V. Bristol Mfg. Co., 107 App. Div. 488, 
 95 Supp. 337; Schradin v. N. Y. G. & H. B. 
 
 By. Co., Misc. , N. Y. Law Journal, 
 
 Feb. 14, 1907.) The case of Holme v. Empire 
 Hardware Co., supra, was an action for death by negli- 
 gence and the notice, though alleged, was served too late 
 to comply with the terms of the statute. The court con- 
 strued the action as a common law action, and says: 
 
216 The New York Employers' Liability Act. 
 
 " The complaint having alleged a cause of common 
 action under section 1902 of the Code of Civil Pro- 
 cedure, it is entirely immaterial whether or not the 
 notice required by the Employers' Liability Act Avas 
 given and the allegation of the service of such a notice 
 was surplusage and could not affect a cause of action 
 properly pleaded irrespective of that act. If the facts 
 alleged in the complaint gave the plaintiff a cause of 
 action under either section 1902 of the Code of Civil 
 Procedure or under the Employers' Liability Act, the 
 plaintiff was entitled to present her proof and if the 
 proof sustained the cause of action she was entitled to 
 have the question submitted to the jury." 
 
 The decision on this point in this action would seem 
 a matter of the elementary law of pleading. There are, 
 however, cases in which, on hasty reading, an appar- 
 ently different ruling is laid down. ( Curran v. Manhat- 
 tan Ry. Co., 103 Supp. 351; Davis v. Broadalbin 
 Knitting Co., 90 App. Div. 567, 86 Supp. 127, 
 affirmed, 185 N. Y. 613, and Chisholm v. Manhattan 
 Ry. Co., 101 Supp. 622.) A careful examination of the 
 Davis case, however, would show that in it the com- 
 plaint was not broad enough to permit a common law 
 recovery, and that the failure to prove a cause of action 
 under the act left no alternative on which the case could 
 proceed at common law. The statement in Chisholm v. 
 Manhattan Ry. Co., supra, that "an employee cannot 
 bring his action under the act and without amendment 
 recover upon a common law cause of action " is dicta 
 only. It is, of course, true, as these two cases should be 
 understood as declaring, that the plaintiff who has 
 based his claim solely under the Liability Act, that is, 
 who has alleged acts of negligence which do not at com- 
 
Pleading by Defendant. 217 
 
 mon law entitle him to a recovery, cannot obtain a judg- 
 ment except under the act. 
 
 It is undoubtedly good pleading to join in the same 
 complaint a cause of action at common law with one 
 under the statute. They need not be separately stated 
 (Acardo v. N. Y. Contracting & Trucking Co., 116 App. 
 Div. 793, 102 Supp. 7; Hammerstrowm v. N. Y. Con- 
 tracting Co., 52 Misc. 634, 102 Supp. 835; Harris v. 
 Baltimore Machine, etc., Co., 112 App. Div. 389, 98 
 Supp. 440), as the cause of action for negligence is a 
 single cause of action which has been extended by the 
 act and the courts have held that the act does not create 
 a new right of action. {Mulligan v. Erie Railway Co., 
 99 A. D. 499; Eleps v. Bristol Mfg. Co., 107 App. Div. 
 488; Holme v. Empire Hardware Co., 102 App. Div. 
 504; Monigan v. Erie Railroad Co., 99 App. Div. 603.) 
 
 Sec. 74. Pleading by defendant. 
 
 Under the New York Code the statute of limitations, 
 is not a defense unless pleaded in the answer, and this- 
 rule applies to the limitation contained in section " 2 " 
 of the act requiring the action to be commenced within 
 a year. (See Code of Civil Procedure, sec. 413; Eno v.- 
 Diefendorf, 102 N. Y. 720; Green v..Hauser, 31 St. Kep. 
 17; Plimpton v. Bigelow, 3 Civ. Proc. 182.) The re- 
 quirements of the statute as to notice of the time, place 
 and cause of injury do not fall within this rule, and no 
 special reference to plaintiff's failure to furnish such 
 notice is necessary in the answer to enable defendant 
 to take advantage of the absence of the notice or the 
 fact that it was not served within the statutory time. 
 {Johnson v. Roach, 83 App. Div. 357, 82 Supp. 203 r 
 Gmaehle v. Rosenberg, 80 App. Div. 541, 80 Supp. 705, 
 supra.) The rule in this regard is similar to the rule in 
 
218 The New York Employees' Liability Act. 
 
 cases where plaintiff has failed to allege the notice re- 
 quired by statute to be given preliminary to the com- 
 mencement of an action against a municipal corpora- 
 tion. It is well settled in such cases that the objection 
 that the plaintiff has failed to give the notice may be 
 raised at any stage of the trial, although such failure is 
 not alleged in the answer. (See Krall v. The City of 
 New York, 44 App. Div. 259, 60 Supp. 661; also sec. 41, 
 supra. ) 
 
 Sec. 75. Election of remedy. 
 
 An important question is whether the plaintiff in an 
 action brought on both common law and statutory 
 grounds, can be compelled to elect on trial as between 
 two causes of action. There have been decisions in 
 Massachusetts which intimate that where a plaintiff 
 joins in the same declaration, separate counts, one or 
 more upon the common law and others upon the Lia- 
 bility Act, the trial court may in its discretion compel 
 the plaintiff to elect upon which of these counts he will 
 go to the jury. The rule is not a settled one, in that 
 State, however, and it is still an open question whether 
 the plaintiff can be compelled to elect before the close 
 of the evidence or whether in every case of this class the 
 trial court can or ought to compel plaintiff to elect. 
 (Claire v. N. Y. & N. E. Railroad Co., 172 Mass. 211.) 
 
 The rule in New York as to requiring election is ap- 
 parently contrary to that of Massachusetts. In Mulli- 
 gan V. Erie Railroad Co., 99 App. Div. 499, this 
 question was raised directly under the Liability Act. 
 Plaintiff had commenced a common law suit and after 
 defendant had answered, he served an amended com- 
 plaint, also alleging a common law cause of action 
 solely. Later on he obtained an order to show cause 
 
Election of Remedy. 219 
 
 why he should not be allowed to amend and serve a com- 
 plaint with additional allegations required by the Lia- 
 bility Act. It was held at Special Term that as plaintiff 
 by his amended complaint had declared upon his com- 
 mon law remedy, he was bound to pursue that remedy ; 
 that he had elected to stand upon his common law right 
 and could not be permitted to set up his right under 
 the statute. On appeal this was held error. The court 
 says : " The policy of the law is to permit litigants to 
 dispose of the whole controversy between them in a 
 single action. . . . The doctrine of an election of 
 remedies applies only to cases where thete is by law or 
 by contract a choice between two remedies which pro- 
 ceed on opposite and irreconcilable claims of right; in 
 such a case a party having a resort to one remedy is 
 bound by his first election, and hence barred from the 
 prosecution of the other. (Matter of Garver, 176 N. Y. 
 386, 392. ) But here there is no choice of remedies ; sec- 
 tion 1 of chapter 600 of the Laws of 1902 specifically 
 provides that the injured person shall have the same 
 right of compensation and remedies against the em- 
 ployer as if the employee had not been an employee of 
 nor in the service of the employer not engaged in his 
 work. This clearly indicates an intention on the part 
 of the Legislature not to change the common law 
 remedy, but as the title of the act declares, to extend 
 and regulate the liability of employers to make compen- 
 sation for personal injuries suffered by employees. It 
 did not give a new remedy for acts of negligence result- 
 ing in personal injuries, it merely extended the liability 
 of employers for negligence of their superintendents, 
 giving an action in some, cases where it could not have 
 •existed at common law. ... In Massachusetts under 
 the Employers' Liability Act of that State, in essential 
 
220 The New York Employers' Liability Act. 
 
 particulars the same as our own, the exact practice fol- 
 lowed by the plaintiff in the present action is distinctly 
 approved. ( Clare v.. N. Y. & N. E. Railroad, 172 Mass. 
 211, 212.) We are clearly of the opinion that as the 
 plaintiff would not be compelled to elect between the 
 two counts if he had stated them originally, it is im- 
 proper to deny him the right of amending his pleadings, 
 so as to bring him under the provisions of the Liability 
 Act." (See, also, Monigan v. Erie By. Co., 99 App. Div. 
 603; Kleps v. Bristol Mfg. Co., 107 App. Div. 488.) 
 
 The only case definitely holding that the trial court 
 has a discretion in ordering plaintiff to elect between 
 the counts at common Jaw and those upon the statute 
 is Brady v. Ludlow Mfg. Co., 154 Mass. 468. There are 
 cases, however, in which an election having been or- 
 dered by the trial court at the close of the evidence the 
 ruling was held on appeal to have been harmless to 
 plaintiff, even if the court had no power to make the 
 direction, but these cases do not decide that any such 
 discretionary powers exist in the trial court.^ 
 
 In Massachusetts the amount of recovery under the 
 Employers' Liability Act is limited to $4,000, while 
 there is no limit upon the amount of recovery at com- 
 mon law. This difference between the common law and 
 the Liability Act, in the amount of recovery permitted, 
 does not exist in New York. One of the reasons for 
 compelling election in Massachusetts is in order that it 
 may be known upon which ground the jury brings its 
 verdict, and if an excessive verdict be rendered under 
 the Liability Act it may be corrected. Another reason 
 is to prevent, if possible, the confusion which the multi- 
 
 2. Murray v. Knight, 156 Mass. Fiske Wharf <£ Warehouse Oo.,. 
 518; May v. Whittier Machine 158 Mass. 472; Oonroy v. Clinton, 
 Co., 154 Mass. 29; McLean v. 158 Mass. 318. 
 
Election of Remedy. 221 
 
 plicity of counts create. The court says, in Brady v. 
 Ludlow Mfg. Co., 154 Mass. 468 : " In some cases the 
 jury may be able to deal with different counts founded 
 upon the same facts presenting different issues and in- 
 volving different liabilities in damages at the same time 
 without great difficulty, and it may be just to both 
 parties to submit them to the jury together. In other 
 cases the presiding judge may see that such a mode of 
 trial would be likely to lead to confusion, and to pre- 
 vent the jury from reaching a correct result. Much 
 must be left to the discretion of the presiding judge in 
 determining what is conducive to an orderly trial and 
 an intelligent verdict." It has been held that the trial 
 court should not require an election in cases in which 
 the declaration sets forth causes of action solely under 
 the common law or solely under the Liability Act, but 
 only in those cases in which common law counts are 
 joined with counts under the act. (See Beauregard v. 
 Webb Q. & S. Co., 160 Mass. 201.) 
 
 In New York the weight of authority seems to hold 
 that the trial court is justified in compelling plaintiff to 
 elect only in those cases where the complaint sets forth 
 two or more causes of action which are incompatible 
 and inconsistent in their facts.^ There is no incon- 
 sistency between a claim of negligence founded upon 
 the common law and one founded upon the Liability 
 Act, and a complaint which is founded upon both the 
 
 3. Follett V. Brooklyn El. Ry. Go. v. Staley, 40 Super. 539; 
 Co. 91 Hun, 296; Velie v. Newark Walters v. Continental Ins. Co., 
 City Ins. Co., 12 Abb. N. C. 309; 5 Hun, 343; Durant v. Gardner, 
 Blank v. Hartshorn, 37 Hun, 101; 10 Abb. 445; Bruce v. Burr, 67 
 Longprey v. Yates, 31 Hun, 432; N. Y. 237; Southworth v. Ben- 
 Wwrray v. Ins. Co., 96 N. Y. 614; nett, 58 N. Y. 659; Mills v. Park- 
 American Dock & Improvement hurst, 126 N. Y. 89. 
 
222 The New York Employers' Liability Act. 
 
 common law and statute sets forth not two causes of 
 action, but one. 
 
 The policy pursued by the New York courts on the 
 question of election of remedy is well expressed in Fol- 
 lett V. BrookUjn El. Ry. Co., 91 Hun, 296, 36 Supp. 200. 
 Defendant had moved that plaintiff be compelled to 
 elect whether to try the case as for a continuing trespass 
 or for a nuisance, and his motion having been denied, 
 this exception was urged upon appeal as a ground for 
 reversal. The court says : " The motion was properly 
 denied. Under our present system parties are allowed 
 to plead the real facts. What benefit will result from 
 that liberality if upon trial the party may not prove the 
 facts as pleaded? A party has an absolute right to 
 plead and prove the facts upon which his rights depend, 
 to prove them all and to prove them as they took place. 
 The determination of the rights that flowed from these 
 facts is the duty of the court which cannot properly be 
 transferred to the party. The only motive conceivable 
 for urging such a motion is a hope that a party might 
 make an unwise election to the detriment of his rights. 
 To compel a party to take a position involving such a 
 peril would be an abuse of discretion which would be 
 speedily corrected by the appellate court." 
 
 Sec. 76. Effect of judgments. 
 
 The policy of law has always been that the whole 
 question of liability for personal injury should be tried 
 in one action and settled once for all. The employer 
 should not be harassed by separate actions for the same 
 injury, nor should the employee be compelled to bring 
 several actions and try his case by piecemeal. [Beaure- 
 gard V. Well) Granite Co., 160 Mass. 201.) While the 
 Court of Appeals has recently held that separate actions 
 
Effect of Judgments. 22^ 
 
 may be brought where the same act of negligence has 
 occasioned injury both to person and to property, on& 
 action being maintainable for the injury to the person 
 and another for the injury to property (see Reilly v. 
 Sicilian Asphalt Paving Co., 170 N. Y. 40), there is no 
 ■ change made by the Liability Act which will permit the 
 injured plaintiff to bring one action against the em- 
 ployer for personal injuries based upon common law, 
 and then, if defeated, permit him to bring another al- 
 leging one or more provisions of the act. A judgment 
 rendered in such an action is conclusive upon the entire 
 right of recovery and is a bar to the maintenance of any 
 other action for the same cause.* 
 
 It has been held in Massachusetts that the statute has 
 created not one but two causes of action, and that in a 
 case where the injured person has in his lifetime sued 
 and recovered for injuries, his administrator may, never- 
 theless, subsequently sue and recover for the death of 
 the intestate. The Massachusetts courts hold that the 
 causes of action for injuries and for death are separate 
 and distinct, and a judgment obtained by an injured 
 person in his lifetime is not a bar to an action for the 
 death brought by the person's representatives. {Clare 
 V. N. Y., etc., R. Co., 172 Mass. 211. ) This decision is 
 contrary to decisions of the New York Court of Appeals 
 in the construction placed upon the action for death 
 provided for in the Code (see Code Civ. Proc, see. 1903- 
 1909), and the Massachusetts cases will probably not 
 be followed on this point in New York. There is, more- 
 
 4. Sheldon v. Carpenter, 4 N. River R. Co., 150 Mass. 178; 
 
 Y. 579; O'Brien v. Lloyd, 43 N. Foye v. Patch, 132 Mass. 105; 
 
 Y. 248; Walthams v. Hope, 77 Bradley v. Bingham, 149 Mass. 
 
 N. Y. 420 ; Rockwell v. Brown, 141 ; Sullivan v. Baxter, 150 Masi 
 
 36 N. Y. 207; Bassett v. Conn. 261. 
 
224 The New Yoek Employees' Liability Act. 
 
 over, a decided difference between the wording of the 
 New York statute and the Massachusetts statute upon 
 the rights of action created by the respective acts, and 
 recovery by the injured person in his lifetime will prob- 
 ably be held, in New York, to be a bar to a recovery by 
 his administrator for his death. Without plain ex- 
 pression of the legislative intent to create two causes 
 of action, one for the injured person and another for his 
 personal representative in case of death, the courts will 
 consider that but one cause of action was intended.* 
 
 5. Littlewood v. Mayor, etc., 89 If. 7. & E. Ry. Co., 25 Barb. 182; 
 
 N. Y. 24; McGahey v. Nassau El. contra Schlisting v. Witgrwm, 25 
 
 Co., 51 App. Div. 281; Matter of Hun, 626. 
 Meehin, 164 N. Y. 152; Dehil v. 
 
Actions by Railway Employees. 225 
 
 CHAPTER VII. 
 
 Actions by Railway Employees. 
 
 Sec. 77. Special provisions relating to railway employees. 
 
 The New York Employers' Liability Act contains no 
 special reference to railroad employees as a class and 
 confers on them no additional benefits other than the 
 benefits generally conferred upon all employees. In 
 this respect it differs from the acts of Massachusetts, 
 Alabama, Indiana, Colorado and England. (See Ap- 
 pendix.) By chapter 687 of the Laws of 1906, the 
 text of which is contained in the Appendix, legal 
 rights have been conferred on railroad employees, which 
 are, in many particulars, closely similar to the rights 
 conferred by liability acts in England and in the other 
 States above mentioned. This act, which is an amend- 
 ment to the Railroad Law, provides in substance that an 
 employee of a railroad corporation or of a receiver of 
 such corporation shall have not only his present common 
 law rights and remedies either for injury or for death 
 occasioned by the negligence of the corporation or of the 
 receiver or his representative, but shall have in addition 
 thereto the following further rights: (1) The fellow 
 servant doctrine (depriving him at common law of legal 
 redress) shall not apply to such injured or killed em- 
 ployee, where the injury resulted from the negligence 
 of a fellow servant, provided that fellow servant was one 
 in the employ or the railroad or in the service of a 
 receiver " entrusted by such corporation or receiver 
 with the authority of superintendence, control or com- 
 15 
 
226 The New Yobk Employers' Liabilitt Act. 
 
 mand of other persons in the employ of such corporation 
 or receiver or with the authority to direct or control any 
 other employee in the performance of the duty of such 
 employee." The difference between the language quoted 
 and the language of the Liability Act which makes the 
 employer responsible for the negligence of a person 
 " entrusted with and exercising superintendence, whose 
 sole or principal duty is that of superintendence," is 
 apparent. The responsibility of a railroad or its re- 
 ceiver to the injured employee or his personal repre- 
 sentatives under this amendment to the railroad law is 
 fairly capable of a much broadej* construction than the 
 more general provisions of the Jjability Act itself. The 
 responsibility of the railroad corporation or its re- 
 ceiver is apparently made to depend upon whether the 
 person charged with neglige ace had any authority over 
 employees. If he was entrusted with " the authority 
 to direct or control any other employees " or is entrusted 
 with " the authority of superintendence, control or com- 
 mand of other persons in the employment of such cor- 
 poration or receiver, the liability of the corporation 
 would apparently be created, even if that negligent per- 
 son be one whose powers of superintendence is only in- 
 cidental or occasional and even if his " principal duty '^ 
 is something else than superintendence. In this con- 
 struction of the Railroad Act it is, so far as the responsi- 
 bility for an act of superintendence is concerned, much 
 broader and more beneficial to railroad employees than 
 the Liability Act itself. 
 
 (2) This act further creates a responsibility in the 
 railroad or its receiver where the injury results from 
 the negligence of a person or persons who have as a part 
 of their duty for the time being, physical control or 
 
The New York Eaileoad Act. 227 
 
 direction of the movement of a signal, switch, locomo- 
 tive engine, car, train or telegraph office. The act says 
 that such persons are to be held to be vice principals ol 
 the corporation or receiver and are not fellow servants 
 of the injured or deceased employee. 
 
 This provision of the act is substantially similar to 
 provisions of liability acts of other States. (See Ap- 
 pendix: Massachusetts Act, subdivision 3 of section 
 71; Alabama Act, subdivision 5 of section 1749; thB 
 Indiana Act, subdivision 3, section 7083; the Colorado 
 Act, subdivision 3 of section 1, English Act, subdi- 
 vision 5 of section 1.) 
 
 (3) This act further provides that if an employee Is 
 engaged in the service of a railroad company or its re- 
 ceiver and is injured by any defect in the condition of 
 the ways, works, machinery, plants tools, or implements 
 or of any car, locomotive or attachment thereto belong- 
 ing, owned or operated or being run and operated by 
 such corporation or receiver, if the defect was one which 
 could have been discovered through reasonable care or 
 tests or inspection, if the same had been made by the 
 corporation or receiver, the corporation is deemed to 
 have had knowledge of such defect before and at the 
 time such injury was sustained and the fact of such 
 defect, if proved on the trial, shall be of prima facie 
 evidence of negligence on the part of the corporation oi 
 receiver. In other words, the employee, on proving the 
 existence of a defect in the condition of the ways, works, 
 machinery, plant, tools, implements or of any car, train, 
 locomotive or attachment thereto, whether belonging to 
 or operated by a railroad corporation or a receiver 
 makes out a prima facie case of negligence on the part 
 of the corporation, when it is shown that the defect 
 
228 The New York Employers' Liability Act. 
 
 could have been discovered by reasonable and proper 
 care, test or inspection. 
 
 Sec. 78. Constitutionality of railroad act. 
 
 There can be no substantial question as to the consti- 
 tutionality of this act. It has been tested at trial term 
 Schradin v. N. Y. C. & H. R. B. Co., — Misc. — , N. Y. 
 Law Journal, Feby. 14, 1907, and its constitutionality 
 affirmed. Similar acts have been declared constitu- 
 tional by the United States Supreme Court. (See 
 Minnesota Iron Co. v. Kline, 199 U. S. 593; Tullis v. 
 Lake Erie, etc., R. Co., 175 U. S. 348; Missouri Pacific 
 ■Ry. Co. V. Mackey, 127 U. S. 205; Minneapolis, etc., Ry. 
 Co. V. Emmons, 149 U. S. 364.) 
 
 Sec. 79. " Car," " train," etc., as defined. 
 
 In Massachusetts the word " train " is defined in the 
 statute itself, and means one or more cars which are in 
 motion, whether attached to the engine or not. It has 
 been held in Devine v. Boston, etc., Ry. Co., 159 Mass. 
 348, before the enactment of the statutory definition, 
 that two cars attached together, which had been 
 " kicked " off from the locomotive, constituted a train 
 within the meaning of the act, although the cars were 
 not attachced to the locomotive at the time the accident 
 occurred. (See Caron v. Boston & Maine, etc., Ry. Co., 
 164 Mass. 523.) 
 
 A "train" has been defined in Massachusetts as a 
 locomotive with one or more cars connected together and 
 run upon a railroad. {Dacey v. Old Colony Railroad 
 Co., 153 M^s. 112; Shea v. N. Y., N. E. & H. Railroad 
 Co., 173 Mass. 177.) 
 
 In Massachusetts it has been held that an electric 
 street car is not a "locomotive engine" or "train" under 
 
" Oab/-" " Teain/' Etc., Defined. 229 
 
 the act. {Fallon v. W. E. St. By. Co., 171 Mass. 249.); 
 It should be observed that the Massachusetts Act creates 
 no liability for the negligence of a person in charge of 
 a " car " or " telegraph oflce," both of which are in* 
 eluded in the New York law. Under the Massachusetts 
 law the responsibility of the railroad for a " car " mus; 
 depend upon whether it is part of a " train " within the 
 meaning of the act. The word " car " as used in the 
 New York act probably does not include street cars of 
 the ordinary kind used in street railway operation. 
 
 The word " car " has been held in Alabama to in- 
 clude a hand car as well as the ordinary type of cars. 
 (Kansas Rd. Co. v. Crocker, 95 Ala. 412; Richmond', 
 etc., Rd. Co. V. Hammond, 93 Ala. 181.) 
 
 The Massachusetts act provides, subdivision 3 of sec. 
 71, for a liability where the negligence is that of a 
 person in the service of the employer who was " in 
 charge or control of a signal, switch, locomotive engine 
 or train upon a railroad." • 
 
 The words " upon a railroad " have been omitted froin 
 the New York statute. The presence of these words 
 " upon a railroad " enabled the Old Colony Railroad, in 
 Perry v. Old Colony Railroad, 164 Mass. 296, to escape 
 liability for an accident occurring while the locomotive 
 engine was on the rails of a railroad round-house for 
 repairs. The court held that the locomotive was not 
 then upon the railroad within the meaning of the act. 
 
 Careful comparison should be made between the word- 
 ing of the New York Railroad Employees' Act and other 
 Employers' Act in testing the applicability of cases 
 brought for injured railroad employees, as the New York 
 act is in many respects much more liberal in its pro- 
 visions. 
 
230 The New Yoek Employees' Liability Act. 
 
 Sec. 80. Physical control or direction. 
 
 The New York act says that the railroad shall be re- 
 sponsible where the injury results from the negligence 
 of a person or persons " having as part of their duty for 
 the time being, physical control or direction of the em- 
 ployment of signal, switch, etc." The words italicized 
 make it clear that temporary control is sufficient and 
 that it is not necessary that the person charged with 
 negligence should have a general or usual charge or con- 
 trol. This construction has also been given to the 
 Massachusetts Act in Steffe v. Old Colony R. Co., 156 
 Mass. 262. The question was whether one Thompson, a 
 brakeman, was " in charge or control " of a train. The 
 court says : " The statute obviously implies that some 
 person is to be regarded as being in charge or control of 
 a moving train, and makes the defendant responsible 
 for the negligence of any person in its service who has 
 such charge or control. It is not necessary that he 
 should be a conductor or have any other particular office 
 or position. The statute includes every person, and 
 must be deemed to mean any person who has such 
 charge or control for the time being." 
 
 As the court says in Shea v. N. Y., N. E. & H. Ry. Co., 
 173 Mass. 177 : " Ordinarily, one who is to determine 
 whether the train is to move or remain stationary, and 
 who is to give directions as to the moving or stopping 
 of the train, may be said to be in charge or control of it." 
 
 Under the Indiana act, the wording of which is sub- 
 4stantially different from the New York act, it has been 
 held that the temporary use of a switch by a brakeman 
 is not enough to warrant the conclusion that he was in 
 charge of it, under the terms of the statute. {Baltimore, 
 etc., R. Co. V. Little, 149 Ind. 167.) 
 
 The English statute has been construed as covering 
 
Physical Control or Direction. 231 
 
 only those negligent employees having general charge 
 and not charge for a particular moment. (See Gibhs v. 
 Great Western By. Co., 12 Q. B. D. 208.) It is clear 
 that the same conclusion could be fairly reached under 
 the New York act. .The Master of EoUs, Brett, in this 
 case says : " I think that to be such a person (a person 
 entrusted with the charge or control of points), hp 
 should be one who has general charge of the points an^ 
 not one who merely has the charge of them at some par- 
 ticular moment." 
 
 The New York act is apparently made to includ^e 
 what the English decision excludes, as it says, " The 
 railroad shall have the responsibility for the negligence 
 of persons who have as a part of their duty for the time 
 being, etc." The language just quoted is apparently 
 taken from the Massachusetts act (Laws 1897, chap. 
 491, clause 3), which says that a person who as a part 
 of his duty for the time being, physically controls or 
 directs the movements of a signal, switch, locomotive 
 engine or train, shall be deemed to be a person in 
 charge or control of a signal, switch, locomotive engine 
 or train within the meaning of said clause. 
 
 Sec. 8i. Physical presence of the person in control unneces- 
 sary, if the control is in fact exercised. 
 In Donahoe v. Old Colony B. Co., 153 Mass. 356, tlie 
 court says that a conductor of a freight train may lie 
 found to be in charge or control of the train at the time 
 of an injury even though temporarily away from the 
 train, engaged upon a duty connected with the opera- 
 tion of the train in his charge, and the question of his 
 control becomes one of fact for the jury. 
 
232 The New York Employees' Liability Act. 
 
 Sec. 82. Negligence of persons exercising physical control 
 or direction. 
 In Dacey v. Old Colony Railroad Co., 153 Mass. 112, 
 plaintiff's intestate, a brakeman, had been killed be- 
 tween a moving car which he was boarding and a sta- 
 tionary car which had been placed too near the track 
 upon which the moving car was operated. The only 
 evidence in the case to fix the liability of the defendant 
 for the position in which this car had been left, was tes- 
 timony which showed that during the preceding after- 
 noon a conductor had directed the placing of cars upon 
 this track. The court held that the question of whether 
 the stationary car had been left there by the negligence 
 of a person in charge of the train, was for the jury. 
 The Massachusetts act does not cover liability for unat- 
 tached cars. (See Thyng v. Fitcliburg R. Co., 156 
 Mass. 13. In this case the railroad company escaped 
 liability for the death of a freight brakeman who was 
 killed by the breaking of a coupling pin. Too short a 
 coupling pin had been put between two freight cars 
 while the train was being made up. The court held that 
 the employees who made up the train were fellow 
 servants of the deceased. The court says : "A conductor 
 of a switch engine, which is drawing several cars under 
 his direction, may be, for the time, in charge of a train 
 consisting of the engine and cars. But there is nothing 
 to show that this conductor of a switch engine was at 
 any time negligent in his charge or management of such 
 a train, or of the engine attached to it, or that his con- 
 duct in reference to such a train had any connection 
 with the accident. . . . He never had charge or con- 
 trol of those cars as a train, but he was to determine 
 what cars should be brought together to constitute the 
 train and see that they were properly coupled and ready 
 
Presumption of Negligence From Defect. 233^ 
 
 to be taken away . . . The Legislature in this part of 
 the statute has gone no further than to include those 
 whose duties relate to the charge of a locomotive engine 
 or the train when complete." (See Caron v. Boston^ 
 etc., R. Co., 164 Mass. 528.) 
 
 Under the New York statute a recovery would doubt- 
 less have been permitted as the negligence in question 
 was of a person who had charge of cars which are 
 covered by the New York law as above indicated. 
 
 Sec. 83. Presumption of negligence from existence of defect. 
 The act provides, as has been previously noted, that if 
 an employee is injured in the service of a railroad com- 
 pany or its receiver, and is injured by any defect in the 
 condition of the ways, works, machinery, plant, tools or 
 implements, or of any car, locomotive or attachments 
 thereto, belonging, owned or operated by such corpora- 
 tion or receiver, if the defect was one which could have 
 been discovered through reasonable care or tests of in- 
 spection if the same had been made by the corporation 
 or receiver, the corporation is deemed to have had 
 knowledge of such defect before and at the time such 
 injury was sustained, and the fact of such defect, if 
 proved on trial, shall be prima facie negligence on the 
 part of the receiver. It is questionable whether this 
 clause, reasonably construed, makes any substantial 
 change in the common law. A railroad is obliged to 
 make proper inspection of its cars, machinery, etc., for 
 the purpose of discovering defects in its machinery, 
 brakes, etc. {Bailey v. R. W. & 0. Rd. Co., 139 N. Y. 
 302 ; Seyholt v. N. T., Lake Erie & Western Rd. Co., 95 
 N. Y. 562), whether owned or only operated by it; the 
 duty to inspect foreign cars being well established. 
 (Eaton V. N. Y. C. & H. R. R. Co., 163 N. Y. 391.) It: 
 
234 The New Yobk Employees' Liability Act. 
 
 is true of course that "where an employee is injured 
 from defective machinery, the fact that he was so in- 
 jured does not alone raise the presumption of negli- 
 gence on the part of the company. The knowledge of 
 the defect must be brought home to the master, or proof 
 given that he was ignorant of the same through his own 
 negligence or want of proper care." {Bailey v. B. W. & 
 O. Rd. Co., 139 N. Y. 302, citing Wright v. N. Y. Cen- 
 tral, 25 N. Y. 560.) But where such a defect is shown, 
 and that it could have been discovered by reasonable 
 inspection, the defendant's negligence follows at com- 
 mon law, for he has been negligent either in failing to 
 make the inspection, which would have unearthed the 
 defect, or in having failed to repair the defect which 
 such inspection disclosed. {Eaton v. N. Y. Central & 
 H. R. Rd. Co., 163 N. Y, 391.) It owes this duty as 
 master and is responsible for the consequences of such 
 ■defects as would be disclosed or discovered by ordinary 
 inspection. {Goodrich v. N. Y. C. d H. R. R. Co., 116 
 N. Y. 398.) 
 
 The duty of inspection is one of the non-deligible 
 duties of a railroad, so that the railroad cannot escape 
 liability under the fellow servant doctrine for the fail- 
 ure of a fellow servant to properly inspect. {Bailey v. 
 R. W. d 0. Ry. Co., 139 N. Y. 302 ; Eaton v. N. Y. C. 
 Ry. Co., 163 N. Y. 391 ; Hawkins v. N. Y., L. E. d N. 
 Ry. Co., 142 N. Y. 416. ) This does not apply, of course, 
 where the plaintiff himself was the person whose em- 
 ployment was to make inspection. ( Cregan v. Marston, 
 126 N. Y. 568.) 
 
 Sec. 84. The Federal Employers' Liability Act. 
 
 The text of this act is contained in the appendix (see 
 page 247). The act has been declared both constitutional 
 
Fedeeal Employees^ Liability Act. 235 
 
 {Spain V. St. Louis & S. F. Ed. Co., 151 Fed. 522; 
 Smead v. Central Georgia Bd. Co., 151 Fed. 608), and 
 unconstitutional {Brooks v. Southern Pacific Ed. Co., 
 148 Fed. 986 ; Howard v. Illinois Central Eailroad Co., 
 148 Fed. 917), and its constitutionality is now before 
 the United States Supreme Court for final decision. A 
 discussion of the constitutional question involved in the 
 act would serve no useful purpose at this time.* 
 
 If sustained this act will prove to be one of the most 
 drastic of American laws on the responsibility of rail- 
 roads to their employees. The act is one on which 
 actions may be maintained in State courts as well as in 
 those of the United States, as the act does not provide 
 that jurisdiction over cases involving the construction 
 and application of the statute should be confined ex- 
 clusively to the courts of the United States. The courts 
 of the States are constantly called upon to hear and 
 decide cases arising under the Federal constitution and 
 laws, just as the courts of the United States are called 
 upon to hear and decide cases arising under the laws of 
 the States, when the adverse parties are citizens of dif- 
 ferent States. The duties of the courts are to apply 
 the existing laws to the cases brought before them. If 
 the law applicable to a given case is of Federal origin, 
 the Legislature of a State cannot abrogate or change it, 
 but the courts of the State may apply and enforce it, 
 and hence the fact that a given subject, like interstate 
 commerce, is beyond State legislative control does not 
 ipse facto prevent courts of the State from exercising 
 jurisdiction over cases which grow out of this com- 
 
 • ( See, however, " The constitutionality of Federal legislation concerning 
 employer and employee engaged in interstate and foreign commerce." by 
 Carl D. Wisner, Michigan Law Iteview, June, 1907, Vol. 5, No. 8, 
 page 639, for exhaustive consideration of the subject.) 
 
236 The New York Employees' Liability Act. 
 
 merce. (Sutherland, Notes on the United States Con- 
 stitution, 509-513; Vlafiin v. Houseniaii, 93 U. S. 136; 
 Murray v. Chicago & N. W. lid. Co., 62 Fed. Kep. 24, at 
 page 43; McDonald v. Mallory, 77 N. Y. 546.) 
 
 Sec. 85. The Federal Act and the fellow servant doctrine. 
 
 The act abolishes in toto the fellow servant doctrine 
 so far as railway employees are concerned. It makes 
 the common carrier liable to any of its employees in- 
 jured by the negligence of any of its other employees of 
 whatever rank or grade and irrespective of whether or 
 not the negligent employee was exercising superintend- 
 ence. There is no limitation whatever upon the rail- 
 road's liability for the negligent act of one fellow 
 servant causing injury to another, except in so far as 
 contributory negligence may be a defense. The defense 
 of assumption of risk is presumably likewise removed. 
 The act says that the common carrier " shall he liable 
 to any of its employees for all damages which may re- 
 sult from the negligence of any of its officers, agents or 
 employees, or by reason of any defect or insufficiency 
 due to its negligence in its cars, engines, appliances, 
 machinery, track, roadbed, ways or works." These 
 italicized words cannot fairly be construed aS creating 
 a mere contingent liability to be defeated and destroyed 
 by the continuance of the employee in the usual course 
 of employment with the knowledge of the defect or 
 danger. The statute apparently intends to create an 
 absolute liability of a railroad corporation to pay dam- 
 ages for injuries occasioned by any defect or in- 
 sufficiency existing by its negligence specified in 
 the words of the first section of the act, subject only 
 to such defenses as contributory negligence may afford 
 under the second section. A construction which would 
 
Contributory Negiigence and the Federal Act. 237 
 
 hold that the employee by continuing in employment, 
 thereby assumes the risk of injury from any such de- 
 tect or insufficiency due to the carrier's negligence, 
 Vould destroy the obvious meaning of the words which 
 Jeclare that the carrier " shall be liable . . . for all 
 damages," for defects and insufficiencies existing 
 through its negligence as specified in the first section 
 of the act. 
 
 Sec. 86. The Federal Act and contributory negligence. 
 
 On the subject of contributory negligence the second 
 section of the act contains the following principles: 
 
 (1) Contributory negligence shall not be a bar in 
 cases where the contributory negligence of the injured 
 person is slight and that of the employer was gross in 
 comparison. 
 
 (2) Where the contributory negligence of the injured 
 is slight and that of the employer is gross in comparison, 
 the damages which the injured employee recovers shall 
 be diminished by the jury in proportion to the amount 
 of negligence attributable to such employee. 
 
 (3) All questions of negligence and contributory neg- 
 ligence (assuming of course that evidence has been in- 
 troduced sufficient as a matter of law to raise the issue 
 of negligence) are to be submitted to the jury. 
 
 (4) Where the negligence of the injured party is 
 gross in comparison with that of the employer, the 
 common law rule is unaffected and contributory negli- 
 gence is a bar. In such a case the pov/er of the court to 
 set aside the verdict rendered in plaintiff's favor is un- 
 impaired. As all questions of negligence and contribu- 
 tory negligence are to be submitted to the jury under 
 the requirements of the act, the court, however, has been 
 deprived of any power to dismiss or direct a verdid 
 
238 The New York Employees' Liability Act. 
 
 for defendant in cases where there is evidence suffi- 
 cient in law to raise the question of negligence, even 
 though it be apparent that the negligence of the in- 
 jured party is gross in comparison with that of the em- 
 ployer. The comparison between the relative negligence 
 of the parties is primarily for the jury, but the power 
 in such a case, however, of the trial judge to set aside 
 a verdict rendered in plaintiff's favor contrary to the 
 evidence is not impaired, though the questions of negli- 
 gence and contributory negligence must be submitted 
 again to a new jury on a re-trial. 
 
 Sec. 87. The Federal Act and the comparative negligence 
 doctrine. 
 The second section of the Federal Employers' Liabil- 
 ity Act is a declaration in statutory and modified form 
 of the so-called " comparative negligence " rule. This 
 rule is stated as follows in Illinois in Rockford, etc., Ry. 
 Co. V. Delaney, 82 111. 198 : " The rule of this court is 
 that the relative degrees of negligence in cases of this 
 kind is a matter of comparison, and that the plaintiff 
 may recover although his intestate was guilty of con- 
 tributory negligence, provided the negligence of the in- 
 testate was slight while that of the defendant was gross 
 in comparison with each other." This rule formerly 
 adopted at common law in Illinois, has since in more 
 recent decisions been repudiated, without statutory in- 
 tervention, by the courts, and the ordinary common law 
 rule as to contributory negligence adopted. {Lake Shore 
 Ry. Co. V. Hessions, 150 111. 586 ; Lanark v. Dougherty ^ 
 153 111. 165; Chicago, etc., Rd. Co. v. Kelly, 156 111. 17.) 
 This rule was formerly in force in Kansas, Kentucky,. 
 Oregon and Tennessee, and remains in force in Georgia. 
 (Branham v. Central Ry. Co., 78 Ga. 35; Savannah, 
 
The Comparative Negligence Eulb. 239' 
 
 etc., Ry. Go. v. Smith, 93 Ga. 742; Ga. Ry. Co. v. Pitt- 
 man, 77 Ga. 325. See " Comparative Negligence," vol. 
 6 of Am. & Eng. Ene. of Law, 2nd Ed., page 360, for a 
 full consideration of the comparative negligence rule.) 
 Under the Illinois comparative negligence rule stated 
 above, the injured employee was entitled to recover not 
 only for the damages he sustained from his employer's 
 negligence, but also for those sustained through his own 
 fault, provided his own negligence was slight in com- 
 parison with that of the defendant, as the Illinois doc- 
 trine made no provision for deducting from the total 
 damages sustained, an amount equivalent to that occa- 
 sioned by the negligence of the injured party himself. 
 In Georgia, however, where an otherwise similar rule 
 now prevails, the negligence of the plaintiff is to be 
 taken in mitigation of damages where his negligence is 
 small in comparison with that of the defendant and the 
 damage recovered by him is to be diminished in propor- 
 tion to his own contributory negligence ( Georgia Ry. 
 Co. V. Pittman, 73 Ga. 325; Branham v. Central Ry. Co.,. 
 78 Ga. S5;.Savannah, etc., Ry. Co. v. Smith, 93 Ga. 742.) 
 The rule as created by the Federal Employers' Liability 
 Act bears a striking similarity to the comparative negli- 
 gence rule as annunciated by the Georgia and older Illi- 
 nois cases. Neither under the comparative negligence 
 rule as laid down in these States nor under the federal 
 act is an employee entitled to recover damages from his 
 employer where his negligence is gross in comparison 
 with that of the employer. In such a case it is the duty 
 of the jury to render a verdict in favor of the defendant, 
 and in case the jury fail to render such a verdict it still 
 remains the duty and power of the judge to set aside the 
 verdict and order a new trial. 
 
240 The New Yoek Employees' Liability Act. 
 
 NEW YORK EMPLOYERS' LIABILITY ACT. 
 
 (L. 1902, ch. 600.) 
 
 AN ACT to extend and regulate the liability of employ- 
 ers to make compensation for personal injuries suf- 
 fered by employees. 
 
 The People of the State of New York, represented in 
 Senate and Assembly, do enact as follows: 
 
 Section 1. Where, after this act takes effect, personal 
 injury is caused to an employee, who is himself in the 
 exercise of due care and diligence at the time : 
 
 (1) By reason of any defect in the condition of the 
 ways, works or machinery connected with or used in 
 the business of the employer, which arose from or had 
 not been discovered or remedied owing to the negligence 
 of the employer, or of any person in the service of the 
 employer and entrusted by him with the duty of seeing 
 that the ways, works or machinery were in proper con- 
 dition ; 
 
 (2) By reason of the negligence of any person in the 
 service of the employer entrusted with and exercising 
 superintendence whose sole or principal duty is that of 
 superintendence, or in the absence of such superintend- 
 ent, of any person acting as superintendent with the 
 authority or consent of such employer, the employee, or 
 in case the injury results in death the executor or ad- 
 ministrator of a deceased employee who has left him 
 surviving a husband, wife or next of kin, shall have the 
 
The New York Liability Act. 241 
 
 same right of compensation and remedies against the 
 employer as if the employee had not been an employee 
 of nor in the service of the employer nor engaged in his 
 work. The provisions of law relating to actions for 
 causing death by negligence so far as the same are con- 
 sistent ^ith this act shall apply to an action brought by 
 an executor or administrator of a deceased employee 
 suing under the provisions of this act. 
 
 Sec. 2. No action for recovery of compensation for 
 injury or death under this act shall be maintained unless 
 notice of the time, place and cause of the injury is given 
 to the employer within one hundred and twenty days 
 and the action is commenced within one year after the 
 occurrence of the accident causing the injury or death. 
 The notice required by this section shall be in writing 
 and signed by the person injured or by some one in his 
 behalf, but if from physical or mental incapacity it is 
 impossible for the person injured to give notice within 
 the time provided in said section, he may give the same 
 within ten days after such incapacity is removed. In 
 case of his death, without having given such notice, his 
 executor or administrator may give such notice within 
 sixty days after his appointment, but no notice under 
 the provisions of this section shall be deemed to be in- 
 valid or insufficient solely by reason of any inaccuracy 
 in stating the time, place or cause of the injury if it be 
 shown that there was no intention to mislead and that 
 the party entitled to notice was not in fact misled 
 thereby. The notice required by this section shall be 
 served on the employer or if there is more than one 
 employer, upon one of such employers, and may be 
 served by delivering the same to or at the residence or 
 place of business of the person on whom it is to be 
 served. The notice may be served by post by letter 
 16 
 
242 The New York Employees' Liability Act. 
 
 addressed to the person on whom it is to be served, at 
 his last known place of residence or place of business, 
 and if served by post shall be deemed to have been 
 served at the time when the letter containing the same 
 would be delivered in the ordinary course of the post. 
 When the employer is a corporation, notice shall be 
 served by delivering the same or by sending it by post 
 addressed to the ofSce or principal place of business of 
 such corporation. 
 
 Sec. 3. An employee by entering upon or continuing 
 in the service of the employer shall be presumed to have 
 assented to the necessary risks of the occupation or em- 
 ployment, and no others. The necessary risks of the 
 occupation or employment shall, in all cases arising 
 after this act takes effect, be considered as including 
 those risks, and those only, inherent in the nature of 
 the business which remain after the employer has ex- 
 ercised due care in providing for the safety of his em- 
 ployees, and has complied with the laws affecting or 
 regulating such business or occupation for the greater 
 Safety of such employees. In an action maintained for 
 the recovery of damages for personal injuries to an 
 employee received after this act takes effect, owing to 
 any cause for which the employer would otherwise be 
 liable, the fact that the employee continued in the ser- 
 vice of the employer in the same place and course of 
 employment after the discovery by such employee, or 
 after he had been informed of the danger of personal 
 injury therefrom, shall not, as a matter of law, be con- 
 sidered as an assent by such employee to the existence 
 or continuance isf such risk of personal injury there- 
 from, or as negligence contributing in such injury. The 
 question whether the employee understood and assumed 
 
The New York Liability Act. 243 
 
 the risk of such injury, or was guilty of contributory 
 negligence, by his continuance in the same place and 
 course of employment with knowledge of the risk of 
 injury shall be one of fact, subject to the usual powers 
 of the court in a proper case to set aside a verdict 
 rendered contrary to the evidence. An employee, or his 
 legal representative, shall not be entitled under this act 
 to any right of compensation or remedy against the 
 employer in any case where such employee knew of the 
 defect or negligence which caused the injury and failed, 
 within a reasonable time, to give, or cause to be giveii, 
 information thereof to the employer, or to some person 
 superior to himself in the service of the employer who 
 had intrusted to him some general superintendence, 
 unless it shall appear on the trial that such defect or 
 negligence was known to such employer, or superior 
 person, prior to such injuries to the employee. 
 
 . Sec. 4. An employer who shall have contributed tD 
 an insurance fund created and maintained for thfi 
 mutual purpose of indemnifying an employee for per- 
 sonal injuries, for which compensation may be recovered 
 under this act, or to any relief society or benefit fund 
 created under the laws of this State, may prove ii» 
 mitigation of damages recoverable by an employee under 
 this act such proportion of the pecuniary benefit which 
 has been received by such employee from such fund 
 or society on account of such contribution of such em- 
 ployer, as the contribution of such employer to such 
 fund or society bears to the whole contribution thereto. 
 Sec. 5. Every existing right of action for negligence 
 or to recover damages for injuries resulting in death is 
 continued and nothing in this act contained shall he 
 construed as limiting any such right of action, nor shall 
 
244 The New Yoek Employees' Liability Act. 
 
 the failure to give the notice provided for in section 
 two of this act be a bar to the maintenance of a suit 
 upon any such existing right of action. 
 
 Sec. 6. This act shall take effect July first, nineteen 
 hundred and two. 
 
The New Yoek Eailroad Act. 245 
 
 NEW YORK RAILROAD LAW, 
 
 (Chap. 657 of the Laws of 1906.)* 
 
 AN ACT to amend, the Eailroad Law in relation to lia- 
 bility for injuries to employees. 
 
 The People of the State of New York, represented in 
 Senate and Assembly, do enact as follows: 
 
 Section 1. Chapter five hundred and sixty-five of the 
 laws of eighteen hundred and ninety, entitled "An act 
 in relation to railroads, constituting chapter thirty-nine 
 of the general laws, and known as the railroad law," is 
 hereby amended by adding thereto a new section, to be 
 known as section forty-two-a, as follows: 
 
 Sec. 42-a. In all actions against a railroad corpora- 
 tion, foreign or domestic, doing business in this state, 
 or against a receiver thereof, for personal injury to, or 
 death resulting from personal injury of any person, 
 while in the employment of such corporation or receiver, 
 arising from the negligence of such corporation or 
 receiver or of any of its or his officers or employees, 
 every employee or his legal representatives, shall have 
 the same rights and remedies for an injury, or for death, 
 suffered by him, from the act or omission of such cor- 
 poration or receiver or of its or his officers or employees, 
 as are now allowed by law, and, in addition to the lia- 
 bility now existing by law, it shall be held in such 
 actions that persons engaged in the service of any rail- 
 road corporation, foreign or domestic, doing business in 
 this state, or in the service of a receiver thereof, who are 
 entrusted by such corporation or receiver, with the 
 
 •Became a law May 29, 1906. 
 
246 The New York Employees' Liabilitt Act. 
 
 authority of superintendence, control or command of 
 other persons in the employment of such corporation or 
 receiver, or with the authority to direct or control any 
 other employee in the performance of the duty of such 
 employee, or who have, as a part of their duty, for the 
 time being, physical control or direction of the move- 
 ment of a signal, switch, locomotive engine, car, train 
 or telegraph office, are vice-principals of such corpora- 
 tion or receiver, and are not fellow-servants of such 
 injured or deceased employee. If an employee, engaged 
 in the service of any such railroad corporation, or of a 
 receiver thereof, shall receive any injury by reason of 
 any defect in the condition of the ways, works, machin- 
 ery, plant, tools or implements, or of any car, train, 
 locomotive or attachment thereto belonging, owned or 
 operated, or being run and operated by such corpora- 
 tion or receiver, when such defect could have been dis- 
 covered by such corporation or receiver, by reasonable 
 and proper care, tests or inspection, such corporation 
 or receiver, shall be deemed to have had knowledge of 
 such defect before and at the time such injury is sus- 
 tained; and when the fact of such defect shall be proved 
 upon the trial of any action in the courts of this state, 
 brought by such employee or his legal representatives, 
 against any such railroad corporation or receiver, on 
 account of such injuries so received, the same shall be 
 prima facie evidence of negligence on the part of such 
 corporation or receiver. This section shall not affect 
 actions or causes of action now existing; and no con- 
 tract, receipt, rule or regulation, between an employee 
 and a railroad corporation or receiver, shall exempt or 
 limit the liability of such corporation or receiver from 
 the provisions of this section. 
 
 Sec. 2. This act shall take effect immediately. 
 
The Fedeeal Liability Act. 247 
 
 FEDERAL EMPLOYERS' LIABILITY ACT. 
 
 [Public— No. 219.] 
 
 AN ACT Relating to liability of common carriers in the 
 District of Columbia and Territories and common 
 carriers engaged in commerce between the States and 
 between the States and foreign nations to their em- 
 ployees. 
 
 Be it enacted hy the Senate and House of Bepresentq,- 
 tives of the United States of America in Congress as- 
 sembled, That every common carrier engaged in trade 
 or commerce in the District of Columbia, or in any 
 Territory of the United States, or between the several 
 States, or between any Territory and another, or be- 
 tween any Territory or Territories and any State or 
 States, or the District of Columbia, or with foreign 
 nations, or between the District of Columbia and a^y 
 State or States or foreign nations, shall be liable to any 
 of its employees, or, in the case of his death, to his per- 
 sonal representative for the benefit of his widow and 
 children, if any, if none, then for his parents, if none, 
 then for his next of kin dependent upon him, for all 
 damages which may result from the negligence of any 
 of its officers, agents, or employees, or by reason of any , 
 defect or insufficiency due to its negligence in its cars, !■ 
 engines, appliances, machinery, track, roadbed, ways, or/ 
 works. ' 
 
 Sec. 2. That in all actions hereafter brought against 
 any common carriers to recover damages for personal 
 
248 The New York Employers' Liability Act. 
 
 injuries to an employee, or where such injuries have 
 resulted in his death, the fact that the employee may 
 have been guilty of contributory negligence shall not 
 bar a recovery where his contributory negligence was 
 slight and that of the employer was gross in. comparison, 
 but the damages shall be diminished by the jury in pro- 
 portion to the amount of negligence attributable to such 
 employee. All questions of negligence and contributory 
 negligence shall be for the jury: 
 
 Sec. 3. That no contract of employment, insurance, 
 relief benefit, or indemnity for injury or death entered 
 into by or on behalf of any employee, nor the acceptance 
 of any such insurance, relief benefit or indemnity by 
 the person entitled thereto, shall constitute any bar or 
 defense to any action brought to recover damages for 
 personal injuries to or death of such employee: Pro- 
 vided, however, That upon the trial of such action 
 against any common carrier the defendant may set off 
 therein any sum it has contributed toward any such in- 
 surance, relief benefit, or indemnity that may have been 
 paid to the injured employee, or, in case of his death, to 
 his personal representative. 
 
 Sec. 4. That no action shall be maintained under this 
 act, unless commenced within one year from the time the 
 cause of action accrued. 
 
 Sec. 5. That nothing in this act shall be held to limit 
 the duty of common carriers by railroads or impair the 
 rights of their employees under the safety-appliance 
 act of March second, eighteen hundred and ninety-three, 
 as amended April first, eighteen hundred and ninety-six, 
 and March second, nineteen hundred and three. 
 
 Approved, June 11, 1906- 
 
The English Liability Act. 249' 
 
 ENGLISH EMPLOYERS' LIABILITY ACT. 
 
 (43-44 Victoria, 1880, ch. 42.) 
 
 AN ACT to extend and regulate the liability of employ- 
 ers to make compensation for personal injuries suf- 
 fered by workmen in their service. (7th September, 
 1880.) 
 
 Be it enacted hy the queen's most excellent majesty, by 
 and with the advice and consent of the lords spiritual 
 and temporal, and commons, in this present parlia- 
 ment assembled, and by the authority of the same, 
 as follows: 
 Section 1. Where after the commencement of this act 
 
 personal injury is caused to a workman : 
 
 (1) By reason of any defect in the condition of the 
 ways, works, machinery, or plant connected with or used 
 in the business of the employer; or 
 
 (2) By reason of the negligence of any person in the 
 service of the employer who has any superintendence 
 entrusted to him whilst in the exercise of such super- 
 intendence; or 
 
 (3) By reason of the negligence of any person in the 
 service of the employer to whose orders or directions the 
 workman at the time of the injury was bound to con- 
 form, and did conform, where such injury resulted from 
 his having so conformed; or 
 
 (4) By reason of the act or omission of any person in 
 the service of the employer done or made in obedience to 
 
250 The New Yoek Employers' Liability Act. 
 
 the rules or by-laws of the employer, or in obedience to 
 particular instructions given by any person delegated 
 with the authority of the employer in that behalf ; or 
 
 (5) By reason of the negligence of any person in the 
 service of the employer who has the charge or control of 
 any signal, points, locomotive engine, or train upon a 
 railway, the workman, or, in case the injury results in 
 death, the legal personal representatives of the work- 
 man, and any persons entitled in case of death, shall 
 have the same right of compensation and remedies 
 against the employer as if the workman had not been a 
 workman of nor in the service of the employer, nor 
 engaged in his work. 
 
 Sec. 2. A workman shall not be entitled under this act 
 to any right of compensation or remedy against the 
 employer in any of the following cases; that is to say: 
 
 (1) Under subsection one of section one, unless the 
 defect therein mentioned arose from, or had not been 
 discovered or remedied owing to the negligence of the 
 employer, or of some person in the service of the em- 
 ployer, and entrusted by him with the duty of seeing that 
 the ways, works, machinery, or plant were in proper 
 condition. 
 
 (2) Under subsection four of section one, unless the 
 injury resulted from some impropriety or defect iji the 
 rules, by-laws, or instructions therein mentioned ; pw- 
 vided that where a rule or by-law has been approved or 
 has been accepted as a proper rule or by-law by one of 
 ber majesty's principal secretaries of state, or by the 
 board of trade or any other department of the govern- 
 ment, under or by virtue of any act of parliament, it 
 shall not be deemed for the purposes of this act to be 
 an improper or defective rule or by-law. 
 
The English Liability Act. 251 
 
 (3) In any case where the workman knew of the 
 defect or negligence which caused his injury, and 
 failed within a reasonable time to give, or cause to be 
 given, information thereof to the employer or some 
 person superior to himself in the service of the em- 
 ployer, unless he was aware that the employer or such 
 superior already knew of the said defect or negligence, 
 fc^ec. 3. The amount of compensation recoverable 
 under this act shall not exceed such sum as may be 
 found to be equivalent to the estimated earnings, during 
 the three years preceding the injury, of a person in the 
 same grade employed during those years in the like em- 
 ployment and in the district in which the workman is 
 employed at the time of the injury. 
 
 Sec. 4. An action for the recovery under this act of 
 compensation for an injury shall not be maintainable 
 unless notice that injury has been sustained is given 
 six weeks, and the action is commenced within six 
 months from the occurrence of the accident causing the 
 injury, or, in case of death, within twelve months from 
 the time of death ; provided always, that in case of death 
 the want of such notice shall be no bar to the main- 
 tai nance of such action if the judge shall be of opinion 
 that there was reasonable excuse for such want of 
 notice. 
 
 Sec. 5. There shall be deducted from any compensa- 
 tion awarded to any workman, or representatives of a 
 workman, or person cliaiming by, under or through a 
 workman in respect of any cause of action arising under 
 this act, any penalty or part of a penalty which may 
 have been paid in pursuance of any other act of parlia- 
 ment to such workman, representatives, or persons in 
 respect of the same cause of action ; and where an action 
 
252 The New York Employees' Liability Act. 
 
 has been brought under this act by any workman, or 
 the representatives of any workman, or any persons 
 claiming by, under or through such workman, for com- 
 pensation in respect of any cause of action arising under 
 this act, and payment has not previously been made 
 of any penalty or part of a penalty, under any other 
 act of parliament in respect of the same cause of action, 
 such workman, representatives of persons shall not be 
 entitled thereafter to receive any penalty or part of a 
 penalty under any other act of parliament, in respect of 
 the same cause of action. 
 
 Sec. 6. (1) Every action for recovery of compensa- 
 tion under this act shall be brought in a county court, 
 but may upon the application of either plaintiff or 
 defendant, be removed into a superior court in like 
 manner and upon the same conditions as an action 
 commenced in a county court may be by law removed. 
 
 (2) Upon the trial of any such action in a county 
 court before the judge without a jury, one or more 
 assessors may be appointed for the purpose of ascer- 
 taining the amount of compensation. 
 
 (3) For the purpose of regulating the conditions and 
 mode of appointment and remuneration of such as- 
 sessors and all matters of procedure relating to their 
 duties, and also for the purpose of consolidating any 
 actions under this act in a county court, and otherwise 
 preventing multiplicity of such actions, rules and regu- 
 lations may be made, varied and repealed from time to 
 time, in the same manner as rules and regulations for 
 regulating the practice and procedure in other actions 
 in county courts. " County Court " shall, with respect 
 to Scotland, mean the " Sheriff's Court," and shall, with 
 respect to Ireland, mean the " Civil Bill Court." 
 
The English Liability Act. 253 
 
 In Scotland any action under tkis act may be removed 
 to the court of session at the instance of either party, 
 in the manner provided by and subject to the conditions 
 prescribed by section nine of the sheriff's courts (Scot- 
 sland) act, 1877. 
 
 In Scotland the sheriff may conjoin actions arising 
 out of the same occurrence or cause of action, though 
 at the instance of different parties and in respect to 
 different injuries. 
 
 Sec. 7. Notice in respect of an injury under this act 
 shall give the name and address of the person injured, 
 and shall state in ordinary language the cause of the 
 injury and the date at which it was sustained, and shall 
 be served on the employer, or, if there is more than one 
 employer, upon one of such employers. 
 
 The notice may be served by delivering the same to 
 or at the residence or place of business of the person on 
 whom it is to be served. 
 
 The notice may also be served by post by a registered 
 letter addressed to the person on whom it is to be served, 
 at his last known place of residence or place of business ; 
 and, if served by post, shall be deemed to have been 
 served at the time when a letter containing the same 
 would be delivered in the ordinary course of post ; and, 
 in proving the service of such notice, it shall be suflB- 
 cient to prove that the notice was properly addressed 
 and registered. 
 
 When the employer is a body of persons corporate or 
 unincorporate, the notice shall be served by delivering 
 the same at or by sending it by post in a registered letter 
 addressed to the office, or, if there be more than one 
 office, any one of the offices of such body. 
 
 A notice under this section shall not be deemed in- 
 valid by reason of any defect or inaccuracy therein. 
 
254 The New York Employers' Liability Act. 
 
 unless the judge who tries the action arising from the 
 injury mentioned in the notice, shall be of opinion that 
 the defendant in the action is prejudiced in his defense 
 by such defect or inaccuracy, and that the defect or 
 inaccuracy was for the purpose of misleading. 
 
 Sec. 8. For the purpose of this act, unless the context 
 otherwise requires: — 
 
 The expression, " person who has superintendence 
 entrusted to him," means a person whose sole or prin- 
 cipal duty is that of superintendence, and who is not 
 ordinarily engaged in manual labor; 
 
 The expression, " employer," includes a body of per- 
 sons corporate or unincorporate ; 
 
 The expression, " workman," means a railway servant 
 and any person to whom the Employers' and Workmen 
 Act, 1875, applies. 
 
 Sec. 9. This act shall not come into operation until 
 the first day of January, 1881, which date is in this act 
 referred to as the commencement of this act. 
 
 Sec. 10. This act may be cited as the Employers* 
 Liability Act, 1880, and shall continue in force till the 
 thirty-first day of December, 1887, and to the end of the 
 then next session of parliament and no longer, unless 
 parliament shall otherwise determine; and all actions 
 commenced under this act before that period shall be 
 continued as if the said act had not expired. 
 
The Alabama Liability Act. 255 
 
 ALABAMA EMPLOYERS' LIABILITY ACT. 
 
 (Act of February 12, 1885; Session Laws, 1885, p. 115; Civil Code,. 
 1896; Alabama, ch. 43, sees. 1749-1751.) 
 
 Section 2590 (1749). Liability of master or employer 
 to servant or employee for injuries. — ^When a personal 
 injury is received by a servant or employee in the 
 service or business of the master or employer, the mas- 
 ter or employer is liable to answer in damages to such 
 servant or employee, as if he were a stranger, and not 
 engaged in such service or employment, in the cases 
 following : 
 
 (1) When the injury is caused by reason of any 
 defect in the condition of the ways, works, machinery,, 
 or plant connected with, or used in the business of the 
 master or employer. 
 
 (2) When the injury is caused by reason of the negli- 
 gence of any person in the service or employment of the 
 master or employer, who has any superintendence in- 
 trusted to him, whilst in the exercise of such superin- 
 tendenca 
 
 (3) When such injury is caused by reason of the 
 negligence of any person in the service or employment 
 of the master or employer, to whose orders or directions 
 the servant or employee, at the time of the injury, was 
 bound to conform, and did conform, if such injuries 
 resulted from his having so conformed. 
 
 (4) When such injury is caused by reason of the act 
 or omission of any person in the service or employment 
 of the master or employerj done or made in obedience 
 to the rules and regulations or by-laws of the master or 
 employer, or in obedience to particular instructions- 
 
256 The New York Employers' Liabilitx Act. 
 
 given by any person delegated with the authority of the 
 master or employer in that behalf. 
 
 (5) When such injury is caused by reason of the 
 negligence of any person in the service or employment 
 of the master or employer, who has the charge or control 
 of any signal, points, locomotive, engine, switch, car, 
 or train upon a railway, or of any part of the track of 
 a railway. 
 
 But the master or employer is not liable under this 
 section, if the servant or employee knew of the defect 
 or negligence causing the injury, and failed in a rea- 
 sonable time to give information thereof to the master 
 or employer, or to some person superior to himself 
 engaged in the service or employment of the master or 
 employer, unless he was aware that the master or 
 employer, or such superior already knew of such defect 
 or negligence ; nor is the master or employer liable under 
 subdivision one, unless the defect therein mentioned 
 arose from, or had not been discovered or remedied 
 owing to the negligence of the master or employer, or 
 of some person in the service of the master or employer, 
 and entrusted by him with the duty of seeing that the 
 ways, works, machinery, or plant, were in proper 
 condition. 
 
 Sec. 2591 (1751). Personal representative may sue, if 
 injury results in death. — If such injury results in the 
 death of the servant or employee, his personal repre- 
 sentative is entitled to maintain an action therefor, and 
 the damages recovered are not subject to the payment 
 of debts or liabilities, but shall be distributed according 
 to the statute of distributions. 
 
 Sec. 2592 (1750). Damages exempt. — Damages recov- 
 ered by the servant or employee, of and from the master 
 or employer, are not subject to the payment of debts, 
 or any legal liabilities incurred by him. 
 
The Massachusetts Liabh^ity Act. 257 
 
 MASSACHUSETTS EMPLOYERS' LIABILITY ACT. 
 
 (L. 1887, ch. 270; Rev. L. 1902, ch. 106, sees. 71-79, with amendmenta 
 
 to date.) 
 
 If personal injury is caused to an employee, wto, at 
 the time of the injury, is in the exercise of due care, by 
 reason of: 
 
 Section 71. First, a defect in the condition of the 
 ways, works or machinery connected with or used in the 
 business of the employer, which arose from, or had not 
 been discovered or remedied in consequence of the 
 negligence of the employer or of a person in his service 
 who had been intrusted by him with the duty of seeing 
 that the ways, works or machinery were in proper con- 
 dition; or 
 
 Second, the negligence of a person in the service of 
 the employer who was intrusted with and was exercis- 
 ing Buperintendence and whose sole or principal duty 
 was that of superintendence, or, in the absence of such 
 superintendent, of a person acting as superintendent 
 with the authority or consent of such employer; or, 
 
 Third, the negligence of a person in the service of the 
 employer who was in charge or control of a signal, 
 switch, locomotive engine or train upon a railroad; the 
 employer, or his legal representatives, shall, subject to 
 the provisions of the eight following sections, have the 
 same rights to compensation and of action against the 
 employer as if he had not been an employee, nor in the 
 service, nor engaged in the work, of the employer. 
 
 A car which is in use by, or which is in possession of, 
 a railroad corporation shall be considered as a part of 
 the ways, works or machinery of the corporation which 
 17 
 
258 The New York Employers' Liability Act. 
 
 uses or has it in possession, within the meaning of 
 clause one of this section, whether it is owned by such 
 corporation or by some other company or person. One 
 or more cars which are in motion, whether attached to 
 an engine or not, shall constitute a train within the 
 meaning of clause three of this section, and whoever, as 
 part of his duty for the time being, physically controls 
 or directs the movements of a signal, switch, locomotive 
 engine or train shall be deemed to be a person in charge 
 or control of a signal, switch, locomotive engine or train 
 within the meaning of said clause. 
 
 Sec. 72. If the injury described in the preceding 
 section results in the death of the employee, and such 
 death is not instantaneous or is preceded by conscious 
 suffering, and if there is any person who would have 
 been entitled to bring an action under the provisions of 
 the following section, the legal representatives of said 
 employee may, in an action brought under the provi- 
 sions of the preceding section, recover damages for the 
 death in addition to those for the injury. 
 
 Sec. 73. If, as a result of the negligence of an em- 
 ployer himself, or of a person for whose negligence an 
 employer is liable under the provisions of section 
 seventy-one, an employee is instantly killed, or dies 
 without conscious suffering, his widow, or, if he leaves 
 no widow, his next of kin, who, at the time of his death, 
 were dependent upon his wages for support, shall have 
 a right of action for damages against the employer. 
 
 Sec. 74. If, under the provisions of either of the two 
 preceding sections, damages are awarded for the death, 
 they shall be assessed with reference to the degree of 
 culpability of the employer or of the person for whose 
 negligence the employer is liable. The amount of 
 damages which may be awarded in an action under the 
 
The Massachusetts Liability Act. 259 
 
 provisions of section seventy-one for a personal injury 
 to an employee, in which no damages for his death are 
 awarded under the provisions of section seventy-two, 
 shall not exceed four thousand dollars. The amount 
 of damages which may be awarded in such action, if 
 damages for his death are awarded under the provisions 
 of section seventy-two, shall not exceed five thousand 
 dollars for both the injury and the death, and shall be 
 apportioned by the jury between the legal representa- 
 tives of the employee and the persons who would have 
 been entitled, under the provisions of section seventy- 
 three, to bring an action for his death if it had been 
 instantaneous or without conscious suffering. The 
 amount of damages which may be awarded in an action 
 brought under the provisions of section seventy-three 
 shall not be less than five hundred nor more than five 
 thousand dollars. 
 
 Sec. 75. No action for the recovery of damages for in- 
 jury or death under the provisions of sections seventy- 
 one to seventy-four, inclusive, shall be maintained un- 
 less notice of the time, place and cause of the injury 
 is given to the employer within sixty days, and the 
 action is commenced within one year, after the accident 
 which causes the injury or death. Such notice shall be 
 in writing, signed by the person injured or by a person 
 in his behalf; but if from physical or mental incapacity 
 it is impossible for the person injured to give the notice 
 within the time provided in this section, he may give 
 it within ten days after such incapacity has been re- 
 moved, and if he dies without having given the notice 
 and without having been for ten days at any time after 
 his injury of sufficient capacity to give it, his executor 
 or administrator may give such notice within sixty days 
 after his appointment. A notice given under the pro- 
 
260 The New Yoek Employees' Liability Act. 
 
 visions of this section shall not be held invalid or in- 
 sufficient solely by reason of an inaccuracy in stating 
 the time, place or cause of the injury, if it is shown that 
 there was no intention to mislead, and that the employer 
 was not in fact misled thereby. The provisions of sec- 
 tion twenty-two of chapter fifty-one shall apply to 
 notices under the provisions of this section.^ 
 
 Sec. 76. If an employer enters into a contract, written 
 or verbal, with an independent contractor to do part of 
 such employer's work, or if such contractor enters into 
 a contract with a subcontractor to do all or any part of 
 the work comprised in such contractor's contract with 
 the employer, such contract or subcontract shall not bar 
 the liability of the employer for injuries to the em- 
 ployees of such contractor or subcontractor, caused by 
 any defect in the condition of the ways, works, ma- 
 chinery or plant, if they are the property of the em- 
 ployer or are furnished by him and if such defect arose, 
 or had not been discovered or remedied, through the 
 negligence of the employer or of some person intrusted 
 by him with the duty of seeing that they were in proper 
 condition. 
 
 1. Chapter 51, L. 1902, sec. 22, executor or administrator or the 
 
 referred to above, reads: person giving or serving such 
 
 " Sec. 22. A defendant shall not notice in his behalf, that his notice 
 
 avail himself in defence of any is insufficient and requests forth- 
 
 omission to state in such notice the with a written notice in compli- 
 
 time, place or cause of the injury ance with the law. If the person 
 
 or damage unless within five days authorized to give such notice, 
 
 after the receipt of the notice given within five days after the receipt 
 
 within the time required by law, of such request gives a written 
 
 and by an authorized person, re- notice complying with the law 
 
 ferring to the injuries sustained as to the time, place, and cause of 
 
 and claiming damages therefor, the an injury or damage, such notice 
 
 person receiving such notice or shall have the effect of the original 
 
 some person in his behalf, notifies notice and shall be considered a 
 
 in writing the person injured, his part thereof." 
 
The Massachusetts Liability Act. 261 
 
 Sec. 77. An employee or his legal representatives 
 shall not be entitled, under the provisions of sections 
 seventy-one to seventy-four, inclusive, to any right of 
 action for damages against his employer if such em- 
 ployee knew of the defect or negligence which caused 
 the injury, and failed within a reasonable time to give, 
 or cause to be given, information thereof to the em- 
 ployer, or to some person superior to himself in the 
 service of the employer who was intrusted with general 
 superintendence. 
 
 Sec. 78. An employer who shall have contributed to 
 an insurance fund created and maintained for the 
 mutual purpose of indemnifying an employee for per- 
 sonal injuries for which compensation may be recovered 
 under the provisions of sections seventy-one to seventy- 
 four, inclusive, or to any relief society formed under 
 the provisions of sections seventeen, eighteen and nine- 
 teen of chapter one hundred and twenty-five, may prove 
 in mitigation of the damages recoverable by an em- 
 ployee under the provisions of said section, such pro- 
 portion of the pecuniary benefit which has been received 
 by such employee from any such fund or society on 
 account of such contribution of said employer, as the 
 contribution of such employer to such fund or society 
 bears to the whole contribution thereto. 
 
 Sec. 79. The provisions of the eight preceding sec- 
 tions shall not apply to injuries caused to domestic 
 servants or farm laborers by fellow employees. 
 
262 The New York Employees' Liability Act: 
 
 INDIANA EMPLOYERS' LIABILITY ACT. 
 
 (Acts 1893, ch. 130, p. 294; Burns R. S. of Ind., 1901; Annotated 
 Statutes of 1894, oh. 81.) 
 
 Section 7083. Liahility for personal injuries. — Every 
 railroad or other corporation, except municipal, operat- 
 ing in this state, shall be liable for damages for personal 
 injury suffered by an employee while in its service, the 
 employee so injured being in the exercise of due care 
 and diligence, in the following cases : 
 
 First. When such injury is suffered by reason of any 
 defect in the condition of ways, works, plant, tools and 
 machinery connected with or in use in the business of 
 such corporation, when such defect was the result of 
 negligence on the part of the corporation, or some per- 
 son entrusted by it with the duty of keeping such way, 
 works, plant, tools or machinery in proper condition. 
 
 Second. Where such injury resulted from the negli- 
 gence of any person in the service of such corporation, 
 to whose order or direction the injured employee at the 
 time of the injury was bound to conform, and did con- 
 form. 
 
 Third. Where such injury resulted from the act or 
 omission of any person done or made in obedience to 
 any rule, regulation or by-law of such corporation, or 
 in obedience to the particular instructions given by any 
 person delegated with the authority of the corporation 
 in that behalf. 
 
 Fourth. Where such injury was caused by the negli- 
 gence of any person in the service of such corporation 
 who has charge of any signal, telegraph office, switch 
 yard, shop, roundhouse, locomotive engine or train upon 
 
The Indiana Liability Act. 263 
 
 a railway, or where such injury was caused by the negli- 
 gence of any person, co-employee or fellow servant en- 
 gaged in the same common service in any of the several 
 departments of the service of any such corporation, the 
 said person, co-employee or fellow servant, at the time 
 acting in the place, and performing the duty of the cor- 
 poration in that behalf, and the person so injured, obey- 
 ing or conforming to the order of some superior at the 
 time of such injury, having authority to direct; but 
 nothing herein shall be construed to abridge the liability 
 of the corporation under existing laws. 
 
 Sec. 7084 repealed chapter 64, acts of 1895. 
 
 Sec. 7085. Measure of Damages. — The damages re- 
 coverable under this act, shall be commensurate with 
 the injury sustained unless death results from such in- 
 jury, when, in such case the action shall survive and 
 be governed in all respects by the law now in force as to 
 such actions : Provided, that where any such person re- 
 covers a judgment against a railroad or other corpora- 
 tion, and such corporation takes an appeal, and, 
 pending such appeal, the injured person dies, and the 
 judgment rendered in the court below be thereafter re- 
 versed, the right of action of such person shall survive 
 to his legal representative. 
 
 Sec. 7086. Laws of other states not a defense. — In 
 case any railroad corporation which owns or operates 
 a line extending into or through the state of Indiana 
 and into or through another or other states, and a per- 
 son in the employ of such corporation, a citizen of this 
 state, shall be injured as provided in this act, in any 
 other state where such railroad is owned or opera.ted, 
 and a suit for such injury shall be brought in any of 
 the courts of this state, it shall not be competent for 
 such corporation to plead or prove the decisions or 
 
264 The New York Employers^ Liability Act. 
 
 statutes of the state where such person shall have been 
 injured as a defense to the action brought in this state. 
 Sec. 7087. Contracts of release void. — All contracts 
 made by railroads or other corporations with their em- 
 ployees, or rules or regulations adopted by any corpo- 
 ration releasing or relieving it from liability to any 
 employee having a right of action under the provisions 
 of this act are hereby declared null and void. The pro- 
 visions of this act however shall not apply to any in- 
 juries sustained before it takes effect, nor shall it affect 
 in any manner any suit or legal proceedings pending at 
 the time it takes effect. 
 
The Ooloeado Liability Act. 265 
 
 COLORADO EMPLOYERS' LIABILITY ACT. 
 
 (Mills Supp. Ann. St. Colo., 1891-1896, sees. 1511a-1511c; Acts of 1893,. 
 
 ch. 77.) 
 
 Section 1. Where, after the passage of this act, per- 
 sonal injury is caused to an employee, who is himself in 
 the exercise of due care and diligence at the time: (1) 
 By reason of any defect in the condition of the ways, 
 works or machinery connected with or used in the busi- 
 ness of the employer, which arose from or had not been 
 discovered or remedied owing to the negligence of the 
 employer, or of any person in the service of the em- 
 ployer, and entrusted by him with the duty of seeing, 
 that the ways, works and machinery were in proper con- 
 dition; or (2) By reason of the negligence of any per- 
 son in the service of the employer, entrusted with or 
 exercising superintendence whose sole or principal duty 
 is that of superintendence; (3) By reason of the negli- 
 gence of any person in the service of the employer wha 
 has the charge or control of any switch, signal, loco- 
 motive engine or train upon a railroad, the employee, or 
 in case the injury results in death the parties entitled 
 by law to sue and recover for any such damages shall 
 have the same right of compensation and remedy 
 against the employer, as if the employee had not been 
 an employee of or in the service of the employer or en- 
 gaged in his or its works. 
 
 Sec. 2. The amount of compensation recoverable un- 
 der this act, in case of a personal injury resulting solely 
 from the negligence of a co-employee, shall not exceed 
 the sum of five thousand dollars. No action for the re- 
 covery of compensation for injury or death under thi» 
 
•266 The New York Employees^ Liability Act. 
 
 act shall be maintained unless written notice of the 
 time, place and cause of the injury is given to the em- 
 ployer within sixty days, and the action is commenced 
 within two years from the occurrence of the accident 
 causing the injury or death. But no notice given under 
 the provisions of this section shall be deemed invalid 
 or insufflcient solely by reason of any inaccuracy in 
 stating the time, place or cause of injury: Provided, It 
 is shown that there was no intention to mislead, and 
 that the party entitled to notice was not in fact misled 
 thereby. 
 
 Sec. 3. Whenever an employee enters into a contract, 
 either written or verbal, with an independent contractor 
 to do part of such employer's work, or whenever such 
 contractor enters into a contract Avith a subcontractor 
 to do all or a part of the work comprised in such con- 
 tract or contracts with the employer, such contract or 
 subcontract shall not bar the liability of the employer 
 for injuries to the employees of such contractor or sub- 
 contractor, by reason of any defect in the condition of 
 the ways, works, machinery or plant, if they are the 
 property of the employer or furnished by him, and if 
 such defect arose or had not been discovered or remedied 
 through the negligence of the employer or of some per- 
 son entrusted by him with the duty of seeing that they 
 were in proper condition. 
 
 Sec. 4. An employee or those entitled by law to sue 
 and recover, under the provisions of this act, shall not 
 be entitled under this act to any right of compensation 
 or remedy against his employer in any case where such 
 employee knew of the defect or negligence which caused 
 the injury, and failed within a reasonable time to give 
 or cause to be given information thereof to the employer 
 or to some person superior to himself in the service of 
 
The Colorado Liability Act. 287 
 
 his employer, who had entrusted to him some general 
 superintendence. 
 
 Sec. 5. If the injury sustained by the employee is 
 clearly the result of the negligence, carelessness or mis- 
 conduct of a co-employee the co-employee shall be 
 equally liable under the provisions of this act, with the 
 employer, and may be made a party defendant in all 
 actions brought to recover damages for such injury. 
 Upon the trial of such action, the court may submit to 
 and require the jury to find a special verdict upon l^e 
 question as to whether the employer or his vice-princi- 
 pal was or was not guilty of negligence proximately 
 causing the injury complained of; or whether such 
 injury resulted solely from the negligence of the co- 
 employee, and in case the jury by their special verdict 
 find that the injury was solely the result of the negli- 
 gence of the employer or vice-principal, then, and in 
 that case the jury shall assess the full amount of plain- 
 tiff's damages against the employer, and the suit shall 
 be dismissed as against the employee; but in case the 
 jury by their special verdict find that the injury resulted 
 solely from the negligence of the co-employee, the jury 
 may assess damages both against the employer and 
 employee. 
 
INDEX. 
 
 ACCIDENT. Notice of time, etc., gee Notice op Injxjbt. 
 
 Particular causes of, see Pabticulab Defects; Neoiiqent 
 
 Acts or Sdpebintendence. Page 
 
 Gun left loaded 24-25 
 
 Absence of fencing on elevator 26-27 
 
 Absence of washers on truck 27 
 
 Breaking set screw 28 
 
 Insufficient or defective scaffolding 29-30 
 
 Insufficient platform 30 
 
 Breaking link in chain 31, 34 
 
 Gang plank improperly placed 31 
 
 Defective plank and hook 32 
 
 Defect in ladders and staging 32 
 
 Temporary lack of appliances 32 
 
 Defective permanent staging 33 
 
 Fall of derrick 33 
 
 Fall of bar of steel 34 
 
 Hole insufficiently covered 35-36 
 
 Unprotected well hole 36 
 
 Caving in of bank of earth 37 
 
 Dampness of moulds in foundry 37 
 
 Kxploder 37 
 
 Stone falling from staging 37 
 
 Well hole left open 38 
 
 Cartridge in drill hole 38 
 
 Rubbish piled upon floor 38 
 
 Planks nailed to make bridge 39 
 
 Spliced ladders 39 
 
 Shafting falling 41 
 
 Defective telephone pole 42 
 
 Improper or insufficient brake rods 46 
 
 Braces, drawbars, coupling pins 46-47 
 
 Cow catchers, boilers on locomotives 46-47 
 
 Draw heads defective 46-47 
 
 Defective engines 46-47 
 
 Defective boilers 46-47 
 
 Defective drawbolts 48 
 
270 Index. 
 
 ACCIDENT— continued: Paob 
 
 Absence of lock from switch 47 
 
 Absence of hooks or stays to ladder 47 
 
 Space for pedestrian too narrow 47 
 
 Dark hallway 48 
 
 Discharge of powder 63-64 
 
 Fuse catching fire note, 64 
 
 Absence of plank in car yard 157-158 
 
 " Kicking " cars 166-167 
 
 Cog wheels not guarded 169-170 
 
 Absence of banksman at coal mine 170-171 
 
 Defective printing machine 171-172 
 
 Cooling vat unfenoed 176-177 
 
 Vicious horse 180 
 
 Negligent practice of swinging stones by crane 182-183 
 
 ACTION. Common law right of, see- Common Law Eights; 
 
 PtEADINO AND PEACUCE; CONSTEUCTION. 
 
 Commencement of, not substitute for notice of injury 139 
 
 ACTIONS. See Pleadino and Peactice. 
 
 For loss of services of child not covered by act 6 
 
 By servant of subcontractor against contractor not covered by 
 
 Liability Act , 6 
 
 Separate, for injuries to persons and to property allowed. . . . 223 
 
 ADMINISTRATORS, EXECUTORS AND. 
 
 Notice of injury by 125 
 
 See Notice of Injuet. 
 Actions by, see Pleading and Peactice. 
 
 Recovery by injured person bar to action by, in New York. .223-224 
 No bar in Massachusetts ., 223 
 
 ADMIRALTY COURTS. 
 
 Act applies when in 24-25 
 
 Contributory negligence, defense in ,. 24-25 
 
 AGENT. See Supebintendence. 
 
 Service of notice of injury by 130-131 
 
 Service of notice of injury upon , 132 
 
 ALABAMA. 
 
 Actions by parents for minor's services 6 
 
 Construction of Liability Act in 4 
 
 Common law rights not impaired by Liability Act in 10 
 
 Machinery defined in 40' 
 
 Tools not machinery in 42 
 
 Car inspectors fellow servants with other railroad employees 
 in 44 
 
Index. 271 
 
 ALABAMA — continued: Page. 
 
 Handhold on freight car part of ways of railway in 45 
 
 Defective cars are within act in 45 
 
 Responsibility of employer for acts of superintendents under 
 
 statute in 56-61 
 
 Superintendence under statute in , 56-61 
 
 Responsibility of employer for wanton and wilful acts of 
 superintendent in 119' 
 
 ALABAMA EMPLOYERS' LIABILITY ACT. 
 
 Text 255 
 
 ANSWER. Bee Pleading and Practice. 
 
 APPLIANCES. See Detects in Wats ; Paeticulae Defects. 
 
 ASSUMED RISKS OF EMPLOYMENT. 
 
 Rules as to, generally unchanged by acts 148-150 
 
 Effect of superintendence clause of act upon 63-64 
 
 Obvious risks assumed in Massachusetts under act 148-149 
 
 Obvious risks in England 149-150 
 
 Rules governing, modified by statute in New York 150-152 
 
 Statutory modifications of, generally 150-151 
 
 Necessary risks assumed, reasons therefor 151-152 
 
 Effect of continuance with knowledge of risk 153-154 
 
 Common law rules as to, in New York 156-157 
 
 Obvious as well as necessary risks assumed 156-159 
 
 Known risk assumed as matter of law 156-157 
 
 Same as to risk which might have been known 168-169 
 
 Danger seen but not understood not assumed 158 
 
 Complaint against unnecessary danger uneffective 159 
 
 Continuance after promise by master to repair 159 
 
 Assumption of risk for jury generally after promise to 
 
 repair ^^^ 
 
 No assumption as matter of law after promise to repair 163 
 
 Assurance of safety by master 165 
 
 Risk generally not assumed after assurance of safety 165-166 
 
 Assurance of safety immaterial when risk obvious 166 
 
 Burden of proof as to assumed risks 167 
 
 Same, under Liability Act 168 
 
 Burden on defendant to show plaintiff's knowledge 167 
 
 Pleading assumption of risk 168 
 
 Violation of statute hy employer, effect of 169-171 
 
 Servant in New York assumes risk of 169-171 
 
 New York rule as to, criticized 170' 
 
 Servant does not assume risk of, in England 170-171 
 
 Public policy regarding, in England 170-171 
 
272 Index. 
 
 ASSUMED RISKS OF EMPLOYMENT— continued : Paqb 
 
 Assumption of risk by minors. .171-174 
 
 English assumed risk rule 174-176 
 
 Knowledge of danger not conclusive 175 
 
 Continuance with knowledge not necessarily assumption of 
 
 risk 175 
 
 Assumption of, question of fact generally 175-176 
 
 Evolution of English doctrine considered 176-190 
 
 Thomas v. Quartermaine, rule in 176 
 
 As to effect of knowledge of risk 178 
 
 Yarmouth v. France 180-181 
 
 Rule as to assumption by continuance 181 
 
 Smith V. Baker .., i 182-190 
 
 Assumption of risk, question of fact 188-190 
 
 No implied assumption of risk from mere continuance 190 
 
 Changes intended by section in New York 190 
 
 Section 3 of act, as construed by New York courts 193 
 
 Necessary risks defined 191 
 
 Necessary risks assumed 190 
 
 No conclusive presumption as to unnecessary risks 101-192 
 
 Assutaption of unnecessary risks, question of fact 193 
 
 Verdicts set aside, when 198 
 
 Section 3 applied to common law cases 200 
 
 Continuance after knowledge not conclusive 193 
 
 Continuance not contributory negligence as matter of law.. .191-192 
 
 Continuance, when negligence 193 
 
 Negligence of superintendent not assumed under act 62-63 
 
 Wanton injuries by superintendent not assummed 119 
 
 ASSURANCE OF SAFETY. 
 
 Effect of 105-166 
 
 " AS THOUGH NOT AN EMPLOYEE." 
 
 Construed 61-62 
 
 (See CoNSTBUcTioN OF Liability Acts; Supebintendence Ciause 
 OF Liabiutt Acts.) 
 
 ATTORNEYS. 
 
 Notice of injury given by 131-132 
 
 BUlLDIJSiGS. 
 
 Incomplete, not defects in ways, etc 34-36 
 
 See Defects in Ways; Pabticoiab Defects. 
 
 BURDEN OF PROOF. 
 
 Defective notice burden on plaintiff 142 
 
 See Notice of Injdbt. 
 Assumption of risk, burden on defendant to show 167 
 
Index. 273 
 
 BURDEN OF PEOOF— eontimied: Page 
 
 Intent to mislead, burden on plaintifiF to show no 142 
 
 Notice of defect, burden of proof as to 205 
 
 CARS, FOREIGN. 
 
 Duty to inspect, in Massachusetts 44 
 
 Same in New York 45 
 
 CAUSE QF INJURY. See Notice of Injuey. 
 
 COLORADO. 
 
 Common law rights not affected by Liability Act in 10 
 
 Act affects no rights it does not create in 10 
 
 Defects in ways clause does not change common law in 22 
 
 COLORADO EMPLOYERS' LIABILITY ACT. 
 
 Text of 265 
 
 COMMON LAW RIGHTS. 
 
 Generally not affected by act 8 
 
 Assumed risk section applied to common law cases 200 
 
 See FEiiow Skbvaht Assumed Risks of Employment Con- 
 
 STBtrCIION. 
 
 COMPARATIVE NEGLIGENCE RULE. See Fedebal Bmplot- 
 
 EBS' LlABIUTY ACT. 
 
 COMPENSATION. 
 
 Notice of injury to demand^ 143-144 
 
 See Notice of Injuey. 
 
 COMPLAINT. See Pleading and Pkactice. 
 
 COMPLAINT AGAINST UNNECESSARY DANGER. 
 
 Effect of 159 
 
 CONDITION PRECEDENT. 
 
 Notice of defect not 205 
 
 Notice of injury is 138 
 
 How pleaded 211-212 
 
 See Pleading and Pbactice. 
 
 CONDITIONS TEMPORARY. 
 
 Not defects in ways 1 32, 36-40 
 
 CONSTITUTIONALITY OF LIABILITY ACTS. 
 
 1 Do not take property without due process of law 18-19 
 
 V Are not class legislation 18-19 
 
 \ ' Contrary rulings in Arkansas 19 
 
 f Do not deny equal protection of law 18 
 
 [ Notice of injury clause of New York act held constitutional. . 19 
 
 CONSTRUCTION OF LIABILITY ACTS IN GENERAL. 
 
 Liberal construction given 4-5 
 
 Authority of constructions of acts in other States 4 
 
 Acts apply only to emmployees 6 
 
 18 
 
274 Index. 
 
 CONSTRUCTION OF LIABILITY ACT— continued : Page 
 
 Applies only to accidents happening within the State 8 
 
 Do not generally affect common law rights 8 
 
 "Ways, works and machinery" liberally interpreted 41 
 
 " Defects in ways " defined 26 
 
 " Way " defined 40 
 
 " Works " defined 40 
 
 " Machinery " defined ,. ., , 40 
 
 " Entrusted with and exercising superintendence " construed . . 85 
 " Same rights as though not an employee " construed 61-62 
 
 See Defects in Ways; Stjpebintbndencb; Assumed Eisks op 
 Employment. 
 
 CONTINUANCE IN EMPLOYMENT. 
 
 Effect of 23, 153, 193 
 
 See Assumed Risks op Employment. 
 As contributory negligence 164 
 
 CONTRACTOR. 
 
 Servant of subcontractor against contractor no action under 
 act 6 
 
 CONTRACTS. 
 
 Waiving rights under statute and at common law generally 
 
 illegal 13 
 
 In New York 15 
 
 In England 14 
 
 Statutes forbidding note, 17 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 Defense of, not affected by act 23 
 
 Continuance in employment as 164 
 
 « COUNTS." 
 
 Separate, not good pleading in New York 213 
 
 DECLARATION OF SUPERINTENDENT. 
 
 As evidence 70 
 
 See Evidence of Supebintendencb. 
 
 DEFECT. 
 
 Defined 26-27 
 
 See Pabticulab Detects; Notice of Dhxi;ct. 
 
 DEFECT IN •' WAYS, WORKS OR MACHINERY." 
 See Pabticulab Defects. 
 
 Defect in ways clause declaratory 21 
 
 So held in Massachusetts, Alabama, Colorado and New York. . 22 
 
 Unsuitableness for purpose, defect in condition 27 
 
 Temporary appliances not defects 29 
 
 Incomplete buildings generally not defective works 34-3S 
 
Index. 275 
 
 DEFECT IN " WAYS, WORKS OR MACHINERY"— continued: Page 
 
 Appliance when becomes part of ways, etc 29 
 
 English cases contra 34-35 
 
 Permanent appliances, defects in, covered by act 32-33 
 
 Temporary conditions and temporary risks not defects 36-37 
 
 Defect must be proximate cause of accident 26 
 
 Permanent ways covered by act 37 
 
 Spliced ladders not defects . . ., 39 
 
 Defective tools not defects in ways 42-43 
 
 Defects in railway appliances, see Railways. 
 DEFECT, KNOWLEDGE OF, effect of, see Assumed Risks of 
 
 Employment. 
 DEFECT, NOTICE OF. /See Notice op Detect. 
 DEFENSES TO ACTIONS UNDER LIABILITY ACTS. 
 See Pleading and Practice. 
 What defenses left to employer under superintendence clause 
 
 of act 61 
 
 Contributory negligence not affected > 23 
 
 Failure to notify employer of injury 138 
 
 Assumption of risk of superintendent's negligence not a de- 
 fense 62-63 
 
 Failure to anticipate employer's negligence not a defense 65 
 
 That permanent appliance was made by fellow servant not 34 
 
 Failure to notify employer of defect 203, 205 
 
 That negligent act was not one of superintendence 84 
 
 That negligent person was not entrusted with superin- 
 tendence 61, 83 
 
 DEFINITIONS. 
 
 Master and servant 6-7 
 
 Ways • '*^ 
 
 Machinery ^" 
 
 Defect 26 
 
 See Construction. 
 DIRECTIONS OF SUPERINTENDENT. 
 
 Immaterial when risk obvious 66 
 
 Negligent directions and omissions of 101 
 
 See Superintendent. 
 
 DUTIES. 
 
 Non delegible of master 60-51 
 
 DUTY OF EMPLOYER. 
 
 Defects in ways clause does not change, in Massachusetts, 
 Colorado, or New York 22 
 
 To supply safe machinery, etc 22 
 
276 Index. 
 
 DtTTY OF EMPLOYEE— continued: Paob 
 
 To supply machinery suitable for purpose for which it is used. 27 
 
 To employ competent agents 22-23 
 
 To furnish safe place to work 49-50 
 
 No duty where employed to make place safe 39 
 
 See Fellow Sebvant; Assumed Risks ; Supeeioe Servant; 
 Defects in Wa^s. 
 
 General duty at common law 49-51 
 
 Test for, in New York 61 
 
 In Massachusetts 62 
 
 DYNAMITE. 
 
 Negligent instruction as to use of 100 
 
 See PAETIO0LAB Defects. 
 ELECTION OF REMEDY. 
 
 See Pl-EADING AND PKAOTIOE. 
 
 Between common law and statutory rights 218 
 
 Discretion of court in Massachusetts 220 
 
 Reason for requiring election in Massachusetts 220 
 
 Election not required when 221 
 
 New York rule as to election 221-222 
 
 Election between common law and statutory rights not re- 
 quired in New York 221-222 
 
 ELEVATOR, DEFECTS IN, see Pabticuiab Defects. 
 EMPLOYE. 
 
 Not trespasser under act 61 
 
 See Assumed Risks of Employment; SdpebintenDence; De- 
 fects IN Wats; Constbuction. 
 EMPLOYER AND EMPLOYEE. 
 
 Liability acts apply only to 6 
 
 Words defined 6-7 
 
 Legal duties of employer defined at common law. 50-51 
 
 Non delegible duties of, in New York 49-61 
 
 EMPLOYERS' LIABILITY ACTS. 
 
 See Defects in Wats; Consteuction ; Supehntendence 
 Clause of Liabilitt Act; Notice of Defect; Notice of 
 INJUET; Fedebal Liabilitt Act; Railwat Emplotee's 
 Act. 
 
 History of, in general 1-4 
 
 Liberally construed 4-5 
 
 Affect only cases in which relation of employer and employee 
 
 exists 6 
 
 Do not cover actions by parents for injuries to minors 6 
 
 Do not cover actions by servants of subcontractors against 
 contractors 6 
 
Index. 277 
 
 EMPLOYERS' LIABILITY ACT— continued : Page 
 
 Do not affect common law rights i. .|. . . .1 8 
 
 Do not codify law of master and servant ,. ., 9 
 
 Affect only rights which they create ,. . . . ., .. 9 
 
 Contrary rule In New York discarded 10-13 
 
 Contracts exempting employers from liability under, invalid 
 
 generally 13 
 
 Valid in England , 14 
 
 Invalid in New York 15 
 
 Liability acts are constitutional 18 
 
 Do not take property without due process of law 18-19 
 
 Are not class legislation 18 
 
 Defect in ways clause declaratory in Colorado, Massachusetts 
 
 and New York 21 
 
 Apply only where servant is not negligent 23 
 
 Do not affect defense of contributory negligence 23 
 
 Changes affected by, in employer's responsibility for superin- 
 tendents 65 
 
 Statutes compared as to responsibility of employer for super- 
 intendent 55-56 
 
 Words of superintendence clause construed 60-61 
 
 Elements necessary to cause of action under superintendence 
 
 clause 61 
 
 Employer does not assume risk of incompetence of superin- 
 tendent under • • • 62-63 
 
 Text of statutes 240 
 
 ENGLAND. 
 
 Incomplete buildings, ways in 35 
 
 Ground being cleaned for buildings, works 35 
 
 Unprotected well hole, defective way in 36 
 
 Well hole temporarily left open not defective way in 38 
 
 Way defined in 4* 
 
 Assumed risk, rule in 174-175 
 
 See Assumed Risks of Employment. 
 
 Knowledge of risk alone not a complete defense 175-176 
 
 Must show actual or implied agreement by employee 175 
 
 Evolution of English assumed risk rule 174 
 
 Thomas v. Quartermaine 176 
 
 Rule in, as to effect of knowledge of risk 178 
 
 Yarmouth v. France 180 
 
 Rule, as to effect of knowledge of risk 181 
 
 Continuance with knowledge not conclusive. 181 
 
 Assumption of risk, question of fact 181-182 
 
278 INDEH. 
 
 ENGLAND — continued: Page 
 
 Smith V. Baker 182-190 
 
 No implied assumption from mere continuance 189 
 
 ENGLISH EMPLOYERS' LIABILITY ACT. 
 
 Text 249 
 
 EVIDENCE OF SUPERINTENDENCE. 
 
 See Supeeintendence; Supebintendenoe Ciatjse of Lia- 
 bility ACT; JUEY. 
 Whether a person is exercising superintendence ordinarily 
 
 question for jury 69 
 
 What facts are important as. 
 
 Power to employ and discharge help . 68 
 
 Power to give directions as to conduct of work 68 
 
 Amount of pay received by alleged superintendent 68 
 
 Power to assign duties to employee 70, 71 
 
 Acts and declarations of superintendent 71 
 
 Power to order commencement or termination of work... 71-72 
 
 Acting as foreman of gang 71-72 
 
 Directing loading and unloading 73 
 
 Amount of time spent by, in manual labor 75-76 
 
 Fact that superintendent does manual labor not conclusive 75-76 
 
 Directing machinery insufficient 84 
 
 What facts are insufficient as. 
 
 Foreman principally engaged in piling lumber 83 
 
 operating machinery 84 
 
 managing loom 84 
 
 See Negligent Acts op Superintendence. 
 
 EXCUSE FOR FAILURE TO GIVE NOTICE OF INJURY , 132 
 
 See Notice op Injuet. 
 EXECUTORS. 
 
 Notice of injury by 125 
 
 See Administeatobs ; Notice of Injuet. 
 Actions by, see Pleading and Peactice. 
 EXEMPTION OF EMPLOYERS BY CONTRACT FROM LIA- 
 BILITY. See Conteaots. 
 " EXERCISING SUPERINTENDENCE." 
 See Supeeintendent. 
 
 Words construed 45 
 
 Test suggested as to what constitutes 95 
 
 FAILURE TO GIVE NOTICE OF INJURY. 
 
 Excuse for 132 
 
 See Notice of Injuet. 
 
Index. 279 
 
 Paqb 
 
 FEDERAL EMPLOYERS' LIABILITY ACT, text 247 
 
 Actions under, maintainable in New York State courts 235 
 
 Constitutionality in question 234-235 
 
 Contributory negligence, rule as to 237 
 
 Fellow servant doctrine, abolishes 236 
 
 Federal act and comparatiTe negligence doctrine 238-239 
 
 FELLOW SERVANT. 
 
 Making permanent appliance no defense to employer 34 
 
 Car inspectors and railway employees fellow servants, Massa- 
 chusetts 44 
 
 Car inspector Alter Ego of employer in New York 44-45 
 
 Common law rule affecting acts of. New York 49-55 
 
 Who are fellow servants 49 
 
 Tests for determining 49-51, 53 
 
 See SuPEBiOR Seevant. 
 
 GUARDIAN AND WARD. See Pabent and Child. 
 
 HAMMER. See Paeticulab Defects. 
 
 HISTORY OF LIABILITY LEGISLATION 1-4 
 
 HOLE. See Pabticolab Defects. 
 
 INACCURACY IN NOTICE. See Notice of Defect. 
 
 INCAPACITY 132 
 
 See Notice of Injury. 
 
 INDIANA. 
 
 Construction of Liability Act in 6 
 
 INDIANA EMPLOYERS' LIABILITY ACT. 
 
 Text 282 
 
 INJURY. See Notice of Injuey. 
 
 INJURY TO PERSON. 
 
 Action for effect of judgments in 222-223 
 
 INSPECTION. 
 
 Superintendent's failure of 108 
 
 INSPECTOR OF CARS. 
 
 Fellow servant with other railway employees, Massachusetts. . 44 
 Alter Ego of employer, in New York 44-45 
 
 INSTRUMENTALITIES. See Defects in Ways. 
 
 " INTENT TO MISLEAD " 141-142 
 
 See Notice of Defect. 
 
 "INTRUSTED WITH AND EXERCISING SUPERINTEND- 
 
 ^^^^; 84-85 
 
 Construed 
 
 See Superintendence Clause of Liability Act. 
 JUDGMENT, EFFECT OF. See Pueading and Practice. 
 
280 Index. 
 
 JURY. Pagb 
 
 Assumed risk, when question for 157-158 
 
 Setting aside verdicts of 198 
 
 See Assumed Risks of Employment. 
 
 Intent to mislead by defective notice question for 141-142 
 
 Superintendence under act usually a question for 69 
 
 After promise to repair assumption of risk is question for.. 159-160 
 Question of whether a, given person is superintendent is usu- 
 ally one for 71 
 
 Fact that injury results from negligent directions not alone 
 
 sufficient 83 
 
 What evidence of supermtendenoe sufficient to make question 
 for jury. 
 
 Having charge, direction of men 70 
 
 Spending principal time in directing employees 72-73 
 
 Work with hands optional and principal work, direction 
 
 of employees 70-71 
 
 Putting people out of employer's works 71 
 
 Superintendent's own declarations 71 
 
 Power to employ and discharge workmen 71 
 
 Increased pay over other employees 71-72 
 
 Giving orders as to when to begin and leave oflf work. . . . 71-72 
 
 Acting as foreman 73 
 
 What evidence of superintendence is insufficient to make ques- 
 tion for jury. 
 Receiving same pay, doing same work as other employees. 83 
 
 Where principal duty is manual labor 83 
 
 principal duty operating engine 84 
 
 operating loom 84 
 
 LADDERS. 
 
 Spliced 39 
 
 See Defects in Ways. 
 LIABILITY LEGISLATION. 
 
 History and purpose 1-2 
 
 Statutes collected note, 2 
 
 MACHINERY. 
 
 See Defects in Ways, Etc. 
 
 Defined 40-41 
 
 Means more than machine 40-41 
 
 Ownership of, not essential 41 
 
 Term liberally interpreted 41 
 
 Tools not *2 
 
Index. 281 
 
 MANUAL LABOR. Paqb, 
 
 As test for superintendence 75 95 
 
 See Supeeintendent's Clause or Liability Act. 
 
 Act of superintendent engaged in, employer not liable 83 
 
 Superintendence and 89-90 
 
 MASSACHUSETTS. 
 
 Construction liberal of Liability Act in 4 
 
 Master and servant defined in 5-6 
 
 Common law rights not affected in O 
 
 Liability Act does not codify law in 9 
 
 Defect in ways clause does not affect common law in note, 22 
 
 Incomplete buildings not ways in 34-35 
 
 Temporary defects in completed works not defects in ways in .36-37 
 
 No duty of warning employee as to such defects in 37 
 
 Defects in ways must be in permanent works in 36-37 
 
 Ways, works and machinery liberally construed in 41 
 
 Car inspector fellow servant with railroad employee 43 
 
 Test for employer's common law responsibility for acts of 
 
 agent note, 52 
 
 Effect of statute upon liability of employer for acts of super- 
 intendent in 61 
 
 Doctrine of assumed risks not charged by statute in 62 
 
 Superintendent's negligence not an assumed risk in 63 
 
 No negligence for servant not to anticipate, employer's negli- 
 gence 64 
 
 Servant cannot blindly incur danger in 66 
 
 Notice of injury in Massachusetts. 
 
 Rules as to 123 
 
 By executors and administrators 125 
 
 Excuses for failure to give 133-134 
 
 Disability must be both physical and mental to be an ex- 
 cuse 133 
 
 Rulings of courts as to, criticised 134 
 
 MASSACHUSETTS EMPLOYERS' LIABILITY ACT. 
 
 Text 257 
 
 " MASTER." 
 
 Defined 6-7 
 
 See Employee and Employee. 
 
 « MENTAL INCAPACITY " 13a 
 
 See Notice of Injuet. 
 
 MINORS. 
 
 Actions by parents for loss of services not covered by act 6 
 
 Assumption of risk by 171-174- 
 
282 Index. 
 
 MINORS — continued: Paob 
 
 Violation of statute by employers 171 
 
 Burden of proof as to employment certificate 174 
 
 MOULDS, DAMPNESS OF. See Pabticulab Dem;cts; Detects 
 
 IN Ways. 
 NECESSARY RISKS. 
 
 Always assumed 151 
 
 Defined 152-153 
 
 See AssDMED Risks of Employment. 
 NEGLIGENCE, PLEADING. See Pleading and Peactice. 
 :NEGLiGENCE. 
 
 Of superintendent not assumed risk under liability acts 62 
 
 See Accidents; Supeeintendence Ciadse of Liability Act; 
 Defects in Ways; Defenses; Assumed Risks oe Employ- 
 ment; Pabtioulae Defects. 
 Is not negligence not to anticipate negligence by employer... 65 
 Servant blindly relying on superintendent's direction guilty of. 66 
 
 Servant disregarding obvious risk guilty of 66 
 
 2^EGLIGENT ACTS OF SUPERINTENDENT. 
 
 See Supeeintendence Clause of Liability Act; Evidence of 
 Supeeintendence. 
 
 Directing employee to take hold of plank 95 
 
 Applying negligent method of cleaning out fuse hole 95-96 
 
 Negligently starting machine into motion 97 
 
 Failing to warn employee of approaching train 98-99 
 
 Filling to warn employee of danger 99 
 
 Failing to instruct inexperienced employee 99-100 
 
 Failing to warn employee of possible explosion 100 
 
 Negligently directing employee as to use of dynamite 102-103 
 
 Negligently directing employee to start unsafe machine 104 
 
 Negligently instructing employee to use dangerous appli- 
 ance 104-105 
 
 Negligently directing employee to jump into dangerous place. 105 
 
 Negligently failing to countermand order 105-106 
 
 Negligently directing employee to go upon unsafe place 107 
 
 Negligently directing movements of a street car 107 
 
 Negligently failing to properly inspect construction of build- 
 ing 110 
 
 Negligently substituting an insufficient for sufficient valve... 110 
 Ads held not to be negligent acts of superintendence. 
 
 Placing a can of gun powder on a ledge 114-115 
 
 Engineer raising a fall when told to lower 115-118 
 
 Foreman assisting in pushing defective truck 110 
 
Index. 283 
 
 NEGLIGENT ACTS OF SUPERINTENDENT— continued : Pagb 
 
 Failing to block or fasten a truck 116-117 
 
 Starting turn table 118 
 
 NEW YORK. 
 
 Statistics of aceidenta in 2 
 
 Liability Act in, applies only to employees 6 
 
 Term " servant " as defined in 7 
 
 Liability Act and common law rights in 11 
 
 Contracts exempting employer from liability in 15 
 
 Notice of injury clause in Liability Act constitutional in. . . . 19-20 
 
 Defect in ways clause declaratory only in 21 
 
 Employer not responsible for temporary defects in appliances 
 
 in 29 
 
 Liability for defective scaffolding in 29 
 
 Liability for temporary appliances for which suitable mate- 
 rials furnished 30 
 
 When duty to furnish safe place does not apply in 39 
 
 Ownership of machinery or appliances not essential in 41-42 
 
 Machinery defined in 43 
 
 Car inspector Alter Ego of other railway employee in 45 
 
 Railways liable for defects at common law in 47 
 
 Duty to furnish safe place for employee in 48 
 
 Common law fellow servant rule in 49 
 
 Kule for determining responsibility of employer for acts of 
 
 agent at common law 49-52 
 
 Agent's control over injured servant not conclusive in 51-52 
 
 Fact of control of employee by superintendent not conclusive 
 
 at common law in 53 
 
 Change of employer's responsibility for acts of superintendent 
 
 in 60 
 
 Common law rule as to assumed risks of employment in. .151, 156 
 
 Changes made in assumed risk rule by Liability Act 190 
 
 Notice of injury in action brought under statute in 123 
 
 See Notice of Injury. 
 
 By executors and administrators in 125 
 
 Physical incapacity excuse for failure to give, in 134-135 
 
 Liberal construction as to, in 141 
 
 Should show that claim is made for compensation in. . .143-144 
 
 Pleading in actions under Liability Act in 207 
 
 See Pleadinq and Peactice. 
 NOTICE OF DEFECT. 
 
 Need not be pleaded 215 
 
 To be given to employer when 203 
 
284 Index. 
 
 NOTICE OF DEFECT— continued: Page 
 
 Excuse for failure to notify 203 
 
 Employer's knowledge of defect excuse for failure to give .... 203 
 
 Statutes on, compared 203-204 
 
 Common law duty to notify 205 
 
 Burden of proof as to 205 
 
 Not condition precedent, but defense 206 
 
 NOTICE OF INJURY. 
 
 Not required when action is at common law 10 
 
 Contrary rule in New York, cases criticized 11 
 
 Statutes compared 123 
 
 What notice required by New York statute 124 
 
 Notice by executors and administrators 125 
 
 Statutes compared on notice by executors 125 
 
 Right of executors to give, when laches by decedent 126 
 
 Service of notice, statutes compared 129 
 
 Notice, how served in New York 129-130 
 
 Typewritten notice sufficient 130 
 
 Signed in attorney's name by stenographer sufficient 130 
 
 Must be served on behalf of plaintiff in Massachusetts 130-131 
 
 Manner of service immaterial if given in time 130 
 
 Service by agent 130-131 
 
 Service by attorney on behalf of injured person note, 131 
 
 Service on agent of defendant 132 
 
 Rules as to service of notice liberal in New York 131, 135-140 
 
 Failure to notify, excuses for 132 
 
 Notice, condition precedent to action under statute 132, 138 
 
 Purpose of notice 138 
 
 Notice must be in writing 138 
 
 Knowledge by defendant of accident insufficient 138 
 
 Physical or mental incapacity, excuse for failure to serve 
 
 notice 132-133 
 
 Massachusetts rule on physical incapacity criticized 133 
 
 Massachusetts rule probably unconstitutional in New York. .134-135 
 
 Physical incapacity sufficient excuse in New York 134-135 
 
 Defect in notice, statutes compared 135-136 
 
 " Defects " and " inaccuracies " distinguished 136 
 
 Omissions fatal, inaccuracies in notice not fatal 136-137 
 
 Commencement of action not substitute for notice 139 
 
 Notice must be pleaded 140 
 
 Relates to remedy not to right 20, 140 
 
 Substantial compliance sufficient in New York 140 
 
 Inaccuracies, liberal rule as to 140 
 
Index. 285 
 
 NOTICE OF INJURY— continued: Page 
 
 Intent to mislead, question for jury 141 
 
 Facts showing defendant not misled 142 
 
 Defendant's knowledge of facts 142 
 
 Notice to indicate that money claim is made 143-144 
 
 Amount of claim uimecessary 144 
 
 Notice need not state cause of action 144 
 
 Need not say whose negligence caused injury 144 
 
 Particular notices considered 144 
 
 Notice, how pleaded 210 
 
 See Pleadino and Practice. 
 Notice " duly " given 210 
 
 NEW YORK EMPLOYER'S LIABILITY ACT. 
 
 Text 240 
 
 OBVIOUS RISKS. 
 
 Defined 152 
 
 See Assumed Risks of Employment. 
 Superintendent's direction no excuse for incurring 66 
 
 OWNERSHIP OF MACHINERY, ETC. 
 
 Not essential when note, 41 
 
 Staging built by another contractor 32 
 
 PARENT AND CHILD. 
 
 Actions by parents for loss of services of child not covered 
 by act 6 
 
 PARTICULAR DEFECTS. 
 
 Buildings incomplete 34-35 
 
 Hole in mill yard 35 
 
 Washers, absence of 27-28 
 
 Well hole 36 
 
 Set screw 28 
 
 Mould, dampness of 37 
 
 ScaSolding, defects in 29 
 
 Staging, defects in 31, 32-33 
 
 Coupling links 31-34 
 
 Dynamite cartridge 37-38 
 
 Plank 31 
 
 Exploder 38 
 
 Hook 31 
 
 Stone on staging. 37 
 
 Ladders 32 
 
 Spliced ladders 39 
 
 Rubbish on floor 38 
 
 Derrick 33 
 
286 Index. 
 
 PAETICULAR DEFECTS— continued : Paqb 
 
 Planks nailed together 39 
 
 Shafting and pulleys 39 
 
 Truck 41 
 
 Telephone pole 41 
 
 Hammer 42 
 
 Steel bar 42 
 
 Kope 42 
 
 Absence of hooks or stays to ladder . , 47 
 
 Dark hallways 48 
 
 See Accident, Pabticulae Causes op; Defects in Eailwat 
 APPARATUS; Railways. 
 
 PERMANENT AND QUASI PERMANENT APPLIANCES 32 
 
 See Defects in Wats. 
 
 Fellow servant making permanent appliance no defense 34 
 
 PHYSICAL INCAPACITY. See Notice of Injubt. 
 
 PLACE OF INJURY. See Notice of Injuby. 
 
 PLEADING NOTICE 140 
 
 See Notice of Injuey. 
 
 PLEADING AND PRACTICE. 
 
 No general change made by act 207 
 
 Complaint under Liability Act, essential allegations 207 
 
 Pleading service of notice of injury 210 
 
 Notice " duly " given sufficient 210 
 
 Condition precedent, how pleaded 210-211 
 
 Essential facts under statute to be pleaded 210-211 
 
 Notice how to be pleaded 212 
 
 Facts of incapacity to notify, to be pleaded 212 
 
 Pleading notice by executors 212 
 
 Recital of statute unnecessary 212-213 
 
 Separate "counts," allegations in, under liability acts 213 
 
 " Counts,*' bad pleading in New York 213 
 
 General allegation of negligence sufficient in New York 213 
 
 Action for negligence is single cause of action 214 
 
 All allegations of negligence properly stated in one cause of 
 
 action 214 
 
 Joinder of common law and statutory liability 215 
 
 Name of negligent superintendent to be pleaded in Alabama. . 214 
 
 Not necessary in New York 214 
 
 Notice of defect before accident need not be pleaded 214 
 
 Pleading by defendant 214 
 
 Assumption of risk by plaintiff 168 
 
 Plaintiff's failure to give notice of injury need not be pleaded. 217 
 
Index. 28T 
 
 PLEADING AND PRACTICE— continued: Page 
 
 Judgments in actions under act or common law, effect of 221 
 
 Res judicata, when 222-223 
 
 Separate actions for injuries to person and property 223- 
 
 Action by deceased in lifetime, no bar to administrator in 
 
 Massachusetts 223 
 
 Action for injuries and death distinct in Massachusetts 223 
 
 Recovery by injured person bar to administrator in New York. 224 
 
 PRACTICE. See Fleaduhq and Pbactice. 
 
 PRESUMPTION. 
 
 That risk is assumed, when 191 
 
 Conclusive on necessary risks 191-192 
 
 Not conclusive on unnecessary risks 191-192 
 
 "PRINCIPAL DUTY." See Supebintendencb Clause of Lia- 
 bility Act. 
 
 PROMISE TO REPAIR. 
 
 Affecting assumption of risk 159-164 
 
 jSee Assumed Risks of Emplotmbnt. 
 
 Must be made by authorized agent or officer 165 
 
 Promise makes question of assumption one for jury 159-164 
 
 No assumption as matter of law after 159 
 
 PUBLIC POLICY. See Conteacts; Statutes, ViOLATiorr of. 
 
 QUARTERMAINE, THOMAS v. 
 
 Rule in 176 
 
 RAILWAY EMPLOYEES ACT IN NEW YORK. 
 
 Text 245 
 
 Changes effected by the act considered 225-228 
 
 Constitutionality 228 
 
 " Car," " train," etc., defined 228 
 
 Negligence of person in control, etc 230 
 
 Physical control, etc 230 
 
 Physical presence of negligent person unnecessary 231 
 
 Presumption of negligence from existence of defect 233 
 
 RAILWAYS. 
 
 See Railways Employee Act; Fedeeal Empixjyers' Liabil- 
 ity ACT. 
 
 Ways, works and machinery of 43, 47 
 
 Defective cars are defects in ways 43 
 
 Duty of, to inspect foreign cars 43-44 
 
 Not where railroad is mere consignee 44 
 
 Not liable for defects in " foreign " cars in Massachusetts 43 
 
 Contra in New York 44 
 
 Wires and electric signal system, ways, etc 4& 
 
288 Index. 
 
 RAILWAYS— continued: PaOE 
 
 Truck used in repair shop 45 
 
 Axle wheels an^ frame fitted to track, ways 41 
 
 Ladder and hand hold, part of ways 45 
 
 Defects in permanent appliances of 45 
 
 Imperfect or insufficient; — 
 
 Appliances for carrying lumber on flat cars 46 
 
 Brake rods 45 
 
 Brakes 45, 46, 47 
 
 Draw bars of unequal height 45 
 
 Draw bolts 47 
 
 InsuflScient or defective coupling pins 45-46 
 
 Buffers 47 
 
 Boilers on locomotives 46 
 
 Cow catcher absent 46 
 
 Lock on switch absent 47 
 
 Unguarded ditch across track 47 
 
 Way too narrow 47 
 
 Defective draw heads 46 
 
 Defective engines 46 
 
 Defects in temporary appliances of, not defects in ways. . 46 
 
 Links and coupling pina when sufScient ones supplied. . . 46 
 HES JUDICATA. 
 
 Judgments in action when 222-223 
 
 See Pleadinq and Practice. 
 Recovery by injured person not bar to administrator in Mas- 
 sachusetts 222-223 
 
 Contra in New York 222-223 
 
 RISK. 
 
 See Assumed Risks op Employment. 
 
 Necessary risks, defined 152-153, 190 
 
 ROPE. See Pabticttlab Defects. 
 
 SCAFFOLDING, DEFECTIVE. See Pabticitlab Deteom. 
 
 SERVANT. 
 
 Deiined 6-7 
 
 SERVICE. 
 
 By attorneys on behalf of injured person note, 132 
 
 ■SERVICES. 
 
 Actions by parents for minors not covered by act 6-7 
 
 SHAFTING. See Pabticuiab Defects. 
 SMITH v. BAKER, 
 
 Rule in 182 
 
 Assumption of risk question of fact in 190 
 
 See Assumed Risks of Employment. 
 
Index. 289 
 
 Page 
 
 SOLE OR PRINCIPAL DUTY. See Soteeintendence Clause 
 OF LiABiijTT Act. 
 
 STAGING DEFECTIVE. See Paeticotab Defects. 
 
 STATUTES. See Employees' Liabilitt Acts; Consteuction. 
 
 STATUTES. 
 
 See Contbacts; Assumed Risks of Employment. 
 
 Violation of, by employer 14 
 
 EflFect of, on employee's rights in England 169 
 
 In New York 169 
 
 See Assumed Risks of Employment. 
 In actions by minora. New York 171 
 
 SUPERINTENDENCE, ACTS OF. See Supeeintendence Clause 
 OF Liability Act. 
 
 SUPERINTENDENCE CLAUSE OF LIABILITY ACT. 
 
 Superintendenee clauses compared 55-56 
 
 Effect of 60 
 
 As construed in New York 56 
 
 Increased liability created by 60 
 
 Elements necessary for employer's liability under 61 
 
 What defenses left employer under 61 
 
 Defense that employee had assumed risk of injury, not af- 
 fected 61 
 
 Servant not to be considered as trespasser or bare licensee 
 
 under ; 61 
 
 Servant to be considered as on master's premises on business. 61 
 
 Negligence of superintendent not an assumed risk 62-63 
 
 Unless risk is obvious to servant 68 
 
 Evidence of superintendence, what sufficient 69 
 
 Directions given by superintendent 60 
 
 Power to discharge employees 67-68 
 
 Character of work done by superintendent 67-68 
 
 Wages paid to superintendent 71-72 
 
 Question of superintendence for jury 69 
 
 Principal duty of superintendent as construed 69-70 
 
 What evidence of powers of superintendent sufficient 69 
 
 Superintendence must be of men, not of things 74 
 
 Manual labor to disprove superintendence 75 
 
 Evidence held insufficient to prove superintendence. 83 
 
 Sole or principal duty must be superintendence 69 
 
 Test for determining whether act is one of superintendence . . 90 
 
 Negligent act under, must be one of superintendence 84 
 
 Employer not liable unless act be one of superintendence 88 
 
 19 
 
290 Index. 
 
 SUPERINTENDENCE CLAUSE LIABILITY ACT— continued: Paob 
 
 Negligent acts of superintendence, illustrative cases of 88 
 
 See Negligent Acts op Supeeintendence; Evidence of 
 
 SUPEBINTENDiafCE; JUEY. 
 
 Superintendence and manual labor 88 
 
 Superintendent's failure to direct or warn 98 
 
 Negligent directions or omissions 101 
 
 Failure to countermand order 106 
 
 Failure to inspect or superintend 108 
 
 Acts of superintendence, what are not Ill 
 
 Cases illustrating Ill 
 
 Wanton acts of superintendence covered by 119 
 
 SUPERINTENDENT. 
 
 See Supeeintendence Clause op Liability Act. 
 
 Common law test for master's liability for acts of 49 
 
 Control over servants not conclusive at common law 49-53 
 
 Defined in England 56 
 
 Defined in Alabama 56 
 
 Who is, under liability acts 67 
 
 Manual labor as test for in England 55 
 
 Test for employer's responsibility under statute 60-61 
 
 Negligence of superintendent not assumed under act 62 
 
 Superintendent's negligence assumed if risk is obvious 66 
 
 What evidence sufficient to show negligent person to be 69 
 
 Must be in control of men, not machinery, etc 74 
 
 Need not be superintendent of injured person 121 
 
 Whether negligent person was, question for jury 69 
 
 What acts are acts of 88 
 
 What are not acts of Ill 
 
 Failing to direct or warn employee 98-99 
 
 Negligent directions by 101-108 
 
 Failing to countermand order 106 
 
 Failing to properly inspect works 29, 109 
 
 Acting superintendents in absence of superintendent 119 
 
 Wanton acts of, employer liable for 118 
 
 SUPERIOR SERVANTS. 
 
 Who are 52-54 
 
 Superior servant rule 52-54 
 
 Superior servant, vice principal of employer 54 
 
 Powers which determine who are. 
 
 To employ and discharge 54 
 
 To direct or control 54 
 
 TEMPORARY CONDITIONS. See Defects in Wats. 
 
Index. 291 
 
 THOMAS V. QUARTERMAINE. Page 
 
 Rule in 176 
 
 See AssuMEa) Risks of Empix)tment. 
 TOOLS, DEFECTIVE. 
 
 Not generally defects in ways 42 
 
 TRANSITORY RISKS. See Defects in Ways. 
 TRESPASSER. 
 
 Servant not, under superintendence clause of act 61 
 
 VICE PRINCIPAL. 
 
 Superior servant as 53 
 
 See StrPERiNTENDENCE Clause of Liability Act. 
 
 Common law rule as to, in New York 49 
 
 Changes made by statute as to 60 
 
 Control over employee not conclusive in determining who is, 
 
 at common law in New York 51-52 
 
 VOLENTI NON FIT INJURIA. See Assumed Risks of Em- 
 ployment. 
 WANTON INJURY BY SUPERINTENDENT. 
 
 Employer liable 118 
 
 WAY. 
 
 Need not be marked out or defined 40 
 
 " WAYS." 
 
 Defined 40 
 
 .Word liberally construed 41 
 
 See Defects in Ways. 
 
 Ownership of ways is not essential 41 
 
 WELL HOLE. See Pabticulab Defects. 
 WILSON V. MERRY. 
 
 Rule in 22 
 
 WORKS. 
 
 Defined 4" 
 
 See Defects in Ways. 
 
 Ownership of, not essential 41 
 
 WORKMAN. 
 
 Increased rights under superintendence clause 55 
 
 See Supeeintendence Clause of Liability Act. 
 YARMOUTH v. FRANCE. 
 
 Rule in : ^^^ 
 
 See Assumed Risks of Employment.